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613 So.2d 1316 (1993)
STANDARD JURY INSTRUCTIONS CIVIL CASES (1.0, 6.1D, MI8).
No. 80914.
Supreme Court of Florida.
February 11, 1993.
Donald H. Partington, Chair, Standard Jury Instructions Committee (Civil), Pensacola, for petitioner.
PER CURIAM.
The Florida Supreme Court Committee on Standard Jury Instructions (Civil) has submitted three new civil jury instructions and requests that it be authorized to publish them as additions to the standard instructions. The committee has spent several years working on these instructions, revising them several times to reflect suggestions received after the proposed additions had been published. We commend the committee for its efforts and authorize the publication and use of 1.0, Preliminary Voir Dire Instruction, 6.1d, Motor Vehicle No Fault Threshold Instruction, and MI8, Fraudulent/Negligent Misrepresentation. In doing so we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. The new instructions are appended to this opinion and will be effective the date this opinion is filed.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
1.0
Preliminary Voir Dire Instruction
The attorneys and I will be asking you questions to help us decide which of you will serve as jurors in this case. The questions are asked to determine if your decision in this case might be influenced by some personal experience or special knowledge that you have concerning the subject of this trial, the parties, witnesses, or attorneys or by opinions that you now hold. It is not unusual for people to have strong feelings about certain subjects or to identify with or feel some partiality toward one side or the other. However, it would be a violation of your oath as prospective jurors to fail to answer truthfully and as completely as possible our questions about such matters.
Please understand that these questions are not meant to embarrass you or to pry into your personal affairs. They are intended to obtain a fair and impartial jury to try this case. It is your duty to answer completely and truthfully all of the questions that will be asked of you. Any failure to answer truthfully and completely may require this case to end in a mistrial or to be tried again.
6.1
d. Motor vehicle no fault threshold instruction:
If you find for the (defendant)(s), you will not consider the matter of damages. However, if you find for (claimant), you shall next determine the issue of permanency, that is, whether (claimant) sustained an [injury] [or] [disease] as a result of the incident complained of which consists in whole or in part of:
[(1) significant and permanent loss of an important bodily function;] [or]
[(2) significant and permanent scarring or disfigurement;] [or]
[(3) a permanent injury within a reasonable degree of medical probability, other than scarring and disfigurement].
If the greater weight of the evidence does not support the claim of (claimant) on the issue of permanency, you should [award to claimant an amount of money which the greater weight of the evidence shows will fairly and adequately compensate (claimant) for damages caused by the incident in question] [see Note on use 3]. You shall consider the following elements of damage:
*1317 Note: here enumerate those damages recoverable in the absence of a finding of permanency.
[and which have not been paid and are not payable by personal injury protection benefits].
However, if the greater weight of the evidence does support the claim of (claimant) on the issue of permanency, then you should also consider the following elements:
Note: enumerate those damages in S.J.I. 6.2 as applicable. If there is an issue of comparative negligence, refer to 6.1(c) for additional language and instructions.
Notes on use
1. Use the appropriate bracketed numbered provision applicable to the evidence adduced in the case.
2. Use of the threshold instruction will in most cases require the use of an interrogatory verdict form.
3. If there is proof that a claimant will incur future damages that are not excluded from recovery by section 627.737, Florida Statutes (1991), such as where claimant at trial is not at maximum medical improvement and will have a limited period of future lost income or medical expenses, it will be necessary to add the following language after the word "question": "including any such damage as (claimant) is reasonably certain to [incur] [experience] in the future."
Comments
1. See section 627.737(2), Florida Statutes (1991).
2. The committee has placed the threshold instruction after instructions on negligence because the statute sets a threshold to the recovery of noneconomic damages only. If claimant does not establish permanency, claimant may still be entitled to recover economic damages that exceed personal injury protection benefits. See § 627.737(2), Fla. Stat. (1991); Smey v. Williams, 17 Fla. L. Weekly 2477, [608 So.2d 886] (Fla. 5th DCA 1992); Cronin v. Kitler, 485 So.2d 440 (Fla. 2d DCA), review denied, 492 So.2d 1333 (Fla. 1986); McClellan v. Industrial Fire & Casualty Ins. Co., 475 So.2d 1015 (Fla. 4th DCA 1985); Bennett v. Florida Farm Bureau Casualty Ins. Co., 477 So.2d 608 (Fla. 5th DCA 1985); see contra Josephson v. Bowers, 595 So.2d 1045 (Fla. 4th DCA 1992). Therefore, negligence will still be an issue for the jury to decide where there are recoverable economic damages even in cases where no permanency is found. If, however, there are no recoverable damages or such damages are not submitted to the jury, then the court may wish to modify the instruction. For example, the court may instruct the jury: "If the greater weight of the evidence does not support the claim on the issue of permanency, then your verdict should be for the defendant."
3. Section 627.737(2), Florida Statutes (1991), does not define "permanent injury within a reasonable degree of medical probability" that is established by expert testimony. Morey v. Harper, 541 So.2d 1285 (Fla. 1st DCA), review denied, 551 So.2d 461 (Fla. 1989); Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984); Horowitz v. American Motorist Ins. Co., 343 So.2d 1305 (Fla. 2d DCA 1977); see Bohannon v. Thomas, 592 So.2d 1246 (Fla. 4th DCA 1992). Therefore, the instructions do not attempt to define the terms and leave their explanation to the testimony of the experts and argument of counsel. See Rivero v. Mansfield, 584 So.2d 1012 (Fla. 3d DCA 1991), quashed in part, approved in part, 1993 WL 25116, no. 78,856 (Fla. Feb. 4, 1993); see contra Philon v. Reid, 602 So.2d 648 (Fla. 2d DCA 1992), review granted, 614 So.2d 503 (Fla. 1993).
MI 8
FRAUDULENT MISREPRESENTATION NEGLIGENT MISREPRESENTATION
(Issues and Elements)
a. Fraudulent misrepresentation issues:
On (claimant's) claim for fraudulent misrepresentation, the issues for your determination are:
First, whether (defendant) [intentionally][*] made a false statement concerning a material fact;
*1318 Second, whether (defendant) knew the statement was false when [he] [she] made it or made the statement knowing [he] [she] was without knowledge of its truth or falsity;
Third, whether in making the false statement, (defendant) intended that another rely on the false statement;
Fourth, whether (claimant) relied on the false statement;
Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result.
[*] The word "intentionally" should be used for clarity when there is also a claim for negligent misrepresentation.
b. Reliance fraudulent misrepresentation:
[On the claim for fraudulent misrepresentation][*] The (claimant) may rely on a false statement, even though its falsity could have been discovered had (claimant) made an investigation. However, (claimant) may not rely on a false statement if [he] [she] knew it was false or its falsity was obvious to [him] [her].
[*] The bracketed language should be used for clarity when there is also a claim for negligent misrepresentation.
c. Negligent misrepresentation issues:
On (claimant's) claim for negligent misrepresentation, the issues for your determination are:
First, whether (defendant) made a false statement to another concerning a material fact;
Second, whether in the exercise of reasonable care under the circumstances, (defendant) should have known the statement was false;
Third, whether in making the false statement, (defendant) intended that another rely on the false statement;
Fourth, whether (claimant) reasonably relied on the false statement;
Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result.
d. Material fact:
A material fact is one that is of such importance that (claimant) would not have [entered into the transaction] [acted], but for the false statement.
e. Burden of proof on claim:
If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant). However, if the greater weight of the evidence does support the claim of (claimant), [then your verdict should be for (claimant) and against (defendant)] [then you shall consider the defense raised by (defendant)] [instruct on any pertinent defense].
f. Burden of proof on defense[*]:
If the greater weight of the evidence supports the defense, your verdict should be for (defendant). However, if the greater weight of the evidence does not support the defense and does support the claim of (claimant), your verdict should be for (claimant) and against (defendant).
[*] Use this instruction only if an appropriate affirmative defense is raised.
g. "Greater weight of the evidence" defined:
"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.
h. Damages:
If you find for (defendant), you will not consider the matter of damages. But, if you find for (claimant), you should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate (claimant) for [describe appropriate elements of those damages incurred by claimant as a result of the misrepresentation][*].
Note on use: See 6.12 regarding punitive damages on a fraud claim. First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987).
*1319 Comments
1. It appears that Florida recognizes two separate theories of recovery for damage occurring as a result of misrepresentation. One basis of recovery is for fraud and the other is for negligent misrepresentation. The elements of those two theories are set forth in First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987); Johnson v. Davis, 480 So.2d 625 (Fla. 1985); Lance v. Wade, 457 So.2d 1008 (Fla. 1984); Atlantic National Bank v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985), review denied, 491 So.2d 281 (Fla. 1986); Wallerstein v. Hospital Corp. of America, 573 So.2d 9 (Fla. 4th DCA 1990).
2. The recipient of a fraudulent misrepresentation is justified in relying upon its truth, even where an investigation might have revealed its falsity, unless he or she knows the representation to be false or its falsity is obvious to him or her. Besett v. Basnett, 389 So.2d 995 (Fla. 1980).
3. There must be actual damage for recovery in a fraud action. Fraud that does not result in damage is not actionable. Casey v. Welch, 50 So.2d 124 (Fla. 1951); Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408 (1930); Pryor v. Oak Ridge Development Corp., 97 Fla. 1085, 119 So. 326 (1928); Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989); National Equipment Rental, Ltd. v. Little Italy Restaurant & Delicatessen, Inc., 362 So.2d 338 (Fla. 4th DCA 1978).
The damage attributable to the fraud must be separate from the damages flowing from a breach of contract. AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180 (Fla. 1987); John Brown Automation, Inc. v. Nobles, 537 So.2d 614 (Fla. 2d DCA 1988); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla. 3d DCA 1981), dismissed, 415 So.2d 1359 (Fla. 1982); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989).
4. Pending further development of the law, the committee reserves the question of whether comparative negligence is a defense to a negligent misrepresentation claim and, if so, the effect of such defense.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
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969 A.2d 15 (2009)
Jesse OSTRAWSKI, Petitioner
v.
WORKERS' COMPENSATION APPEAL BOARD (UPMC BRADDOCK HOSPITAL), Respondent.
No. 497 C.D. 2008.
Commonwealth Court of Pennsylvania.
Submitted on Briefs February 6, 2009.
Decided March 26, 2009.
*17 Michael Joyce, Pittsburgh, for petitioner.
Richard W. Dell, Jr., Pittsburgh, for respondent.
BEFORE: PELLEGRINI, Judge, and SIMPSON, Judge, and McCLOSKEY, Senior Judge.
OPINION BY Senior Judge McCLOSKEY.
Jesse Ostrawski (Claimant) petitions for review of a March 6, 2008, order of the Workers' Compensation Appeal Board (Board) which (1) made final an earlier Board decision, dated March 22, 2007, that had (a) reversed a decision of Workers' Compensation Judge Kathleen Vallely (WCJ) granting Claimant's review and modification petitions, (b) affirmed the WCJ's conclusion that UPMC Braddock Hospital (Employer) had violated the Pennsylvania Workers' Compensation Act (Act)[1], and (c) remanded the WCJ's imposition of a penalty for reconsideration based upon the Board's reversal of the WCJ's decision regarding the inclusion for average weekly wage calculations of concurrent employment wages, and (2) affirmed the remand decision of Workers' Compensation Judge David Torrey (WCJ Torrey) who, with regard to the penalty aspect of the case, noted that Employer had committed a violation of the Act, but declined to impose penalties after concluding that the Employer's failure was de minimis, that Claimant had no right to benefits based on concurrent employments, and that no weekly compensation was due to Claimant. We now affirm.
Claimant worked for Employer as a security guard. On April 8, 2004, Claimant injured his right foot and ankle, which injury was ultimately diagnosed as a fracture of the right foot. At the time of his injury, Claimant also worked full-time for Am Gard American Services (Am Gard). In June, 2004, Claimant tendered his resignation to Am Gard, to be effective July 24, 2004, in anticipation of starting a new second job with Leonard Security (Leonard) that he was expected to begin on July 25, 2004. However, because of a contract issue Leonard had with a third party, Claimant did not start on that date.[2]
Claimant continued working until September 13, 2004, at which time he underwent surgery on his right foot and was unable to work. Leonard ultimately contacted Claimant on October 13, 2004, and requested that he begin work there immediately. Claimant, however, was unable to comply with that request because he had not been released to work following his *18 surgery for his work-related injury with Employer.
Based upon his inability to work, Employer issued a notice of temporary compensation payable indicating that Claimant was entitled to weekly wage loss benefits of $308.42 based upon an average weekly wage of $342.69. On December 9, 2004, Employer issued a corrected notice of temporary compensation payable, effective December 6, 2004, through which Employer acknowledged that Claimant, as a consequence of the surgery for his work-related injury, could return to work only in a modified position with a loss of wages. Employer thereafter paid Claimant weekly partial disability payments of $166.09, based upon earnings of $176.60 per week for his modified work position.
On January 18, 2005, Claimant filed a petition to review his compensation benefits in which he asserted that Employer, in determining his weekly benefit, had failed to include earnings from concurrent employment in calculating his average weekly wage. Claimant also filed a penalty petition asserting that Employer knew that he had concurrent employment at the time of his April, 2004, injury, and that Employer violated the Act by failing to include wages from such employment in its average weekly wage computation. The penalty petition also requested an award of counsel fees under Section 440 of the Act, 77 P.S. § 996. Employer filed responses to those petitions denying that Claimant had concurrent employment or that it had failed to properly calculate Claimant's average weekly wage.
Claimant filed a modification petition on April 11, 2005, asserting that he had sustained an increase in loss of earning power as of October 14, 2004, based upon his contention that, because of his work-related injury, he could not perform the work that had become available at Leonard in October. Employer denied the averments of this petition. Claimant's petitions were consolidated and assigned to the WCJ for purposes of hearings and disposition.
At these hearings, Claimant testified that he was able to continue his full-time employment for both Employer and Am Gard after his April 8, 2004, injury. Sometime after Claimant sustained his injury, a supervisor at Am Gard informed Claimant about a higher-paying position with Leonard. As indicated above, Leonard selected Claimant for the position, Claimant anticipated that he would begin working for Leonard on July 25, 2004, and Claimant provided Am Gard with his notice of resignation effective July 24, 2004. In anticipation of his employment with Leonard, Claimant testified that he purchased a uniform and a firearm. Further, as noted above, because of his resignation and the problem with the contract between Leonard and a third party, as of July 25, 2004, Employer became Claimant's sole wage provider.
Claimant also testified that, approximately two weeks before his September 2004, foot surgery, he spoke with Employer's human resource manager, Helene Brown, as well as representatives of Employer's "Work Partners"[3], Cynthia Gesuale and Judy D'Hert, in order to ask whether his benefits would reflect his loss of earnings from Am Gard. Claimant testified that both of those representatives told him that his benefits would not reflect his Am Gard employment because he had terminated said employment as of July 24, 2004. As of the time of the WCJ's hearings, *19 Claimant had not been released to return to full-time employment and had continued to work in a modified, part-time position only twenty hours per week.
The WCJ found Claimant's testimony concerning his concurrent employment credible and rejected the testimony of Employer's witness on that subject where the testimony differed from that of Claimant. The WCJ opined that since Claimant had concurrent employment at the time of his injury in April of 2004, he was entitled to include the wages from such employment in the calculation of his average weekly wage. The WCJ also determined that Employer knew of Claimant's concurrent employment and should have included those wages in making its calculations.
Based upon these findings and conclusions, the WCJ (1) granted Claimant's review and modification petitions,[4] (2) imposed a twenty percent penalty based upon the conclusion that Employer had violated the Act by not including concurrent wages in making its calculations and (3) denied Claimant's request for attorney fees. Claimant thereafter appealed to the Board.
By decision and order dated March 22, 2007, the Board reversed the WCJ's grant of Claimant's review and modification petitions. The Board affirmed the WCJ insofar as she found that Employer had violated the Act by not including the wages Claimant received in his concurrent employment in the initial calculation of his average weekly wage. However, since it reversed the WCJ's grant of Claimant's review and modification petitions and since the WCJ premised her penalty award on the recalculated benefits which resulted from the grant of these petitions, the Board remanded to the WCJ to reconsider her award of penalties in light of its decision and order.[5]
On remand, the case was assigned to WCJ Torrey. Despite finding that Employer had committed a technical violation of the Act, WCJ Torrey concluded that no penalties should be awarded to Claimant. Claimant appealed WCJ Torrey's decision and order to the Board, but the Board affirmed. In this decision, the Board also granted Claimant's motion to make its earlier March 22, 2007, decision and order on the merits final. Claimant thereafter filed a petition for review with this Court.
On appeal,[6] Claimant argues that (1) the Board erred in concluding as a matter of law that Claimant did not suffer a loss of earning power from concurrent employment following his surgery for his work-related injury; (2) the Board erred by failing to consider the WCJ's finding *20 that Leonard had hired Claimant for employment before his surgery and directed him to report to work after his surgery, and by re-characterizing that finding to suggest that Leonard merely offered him a job;[7] and (3) the Board erred in affirming WCJ's Torrey decision and order denying penalties.
Claimant first asserts that the Board should have included the potential earning power he had in light of the fact that Leonard hired him, but that he could not begin to work for Leonard because of the surgery for his work-related injury with Employer. Claimant contends that the focus of the inquiry should not be on the difference between pre-injury and post-injury earnings, but rather pre-injury earnings and post-injury earning power. Claimant advocates that the Board should have applied a test that reflects the fact that, but for his work-related injury, he would have had concurrent employment. Claimant indicates that he had no power over the circumstances that prevented him from beginning to work for Leonard in July 2004. Rather, Claimant argues that the Board should not have penalized him for a delay in the commencement of his new position over which he had no control.
We will first briefly summarize Claimant's arguments regarding the nature of his employment relationship with Leonard. As suggested above, Claimant argues that the Board erroneously recognized the communications between himself and Leonard to have resulted in Leonard offering him a job, rather than in him accepting the offer, thereby improperly substituting its judgment for that of the WCJ. The Board stated that "contract negotiations beyond Claimant's control prevented Leonard from employing him on his intended July 25, 2004 start date." (Board Opinion, p. 5).
Thus, the thrust of Claimant's argument is that the relationship between himself and Leonard actually constituted an employment relationship at the time Claimant accepted the offer and that the date employment was to have begun was October 13, 2004, the date upon which Leonard requested that Claimant report for work. Claimant asserts that the Board erred in this respect, because it characterized Claimant's decision to terminate his employment with Am Gard as a risk he himself assumed. We believe that the Board's decision simply reflects its belief that neither offers nor acceptance of employment are key, but rather that the initiation of actual work for an employer is essential in order for a claimant's status to constitute concurrent employment. With this potentially significant distinction in mind, we will proceed to address Claimant's primary argument.
Our starting point is Section 309 of the Act, which provides, in pertinent part, as follows:
Whenever in this article the term "wages" is used, it shall be construed to mean the average weekly wages of the employe, ascertained as follows:
. . .
Where the employe is working under concurrent contracts with two or more employers, his wages from all such employers shall be considered as if earned from the employer liable for compensation.
77 P.S. § 582.
In Triangle Building Center v. Workers' Compensation Appeal Board (Linch), 560 Pa. 540, 746 A.2d 1108 (2000), our Supreme *21 Court considered the question of whether the calculation of a claimant's average weekly wage should reflect concurrent earnings where the claimant was injured on one job while laid off temporarily from a concurrent employment. The claimant in that case had worked full-time for R & J Industries (R & J) and several years later obtained part-time employment (twenty-five to forty hours per week) with Triangle Building Center (Triangle). While working for Triangle, the claimant sustained an injury. At the time of his injury, he was experiencing a temporary lay-off from R & J.[8] The notice of compensation payable (NCP) Triangle issued did not reflect the claimant's wages from R & J. After approximately only one month, the claimant returned to work at Triangle, and, less than one month later, he returned to work at R & J when work became available.
Nevertheless, Claimant was subsequently forced to stop working due to the prior injury sustained at Triangle. Shortly after he resumed disability status, the claimant was required to discontinue his employment with R & J because of his injury. The claimant then formally requested that Triangle reinstate total disability benefits and also amend the NCP to include his earnings from R & J in his average weekly wage calculation. While Triangle initially agreed to that request, approximately two years later, Triangle filed a petition to review compensation benefits asserting that it had mistakenly agreed to include the claimant's earnings from R & J, based upon the fact that, at the time of the claimant's original work injury, he had not actually been working for R & J because of the temporary lay-off.
The WCJ concluded that the claimant's employment with R & J constituted concurrent employment. Employer appealed to the Board, but the Board affirmed. Employer then filed a petition for review with this Court and we reversed. Claimant thereafter filed an appeal with our Supreme Court, which reversed the decision and order of this Court, thereby reinstating the WCJ's original decision. In rendering its decision, our Supreme Court stated as follows:
The mechanics of the legislative scheme demonstrate the General Assembly's intention that the baseline figure from which benefits are calculated should reasonably reflect the economic reality of a claimant's recent pre-injury earning experience, with some benefit of the doubt to be afforded to the claimant in the assessment.... We believe that the General Assembly directed inclusion of concurrent wages in the benefits computationto create a reasonable picture of a claimant's pre-injury earning experience for use as a projection of potential future wages and, correspondingly, earnings loss.
Triangle Building Center, 560 Pa. at 548-9, 746 A.2d at 1112.
Our Supreme Court noted several factual aspects in Triangle that helped in its analysis, including that the claimant had a long-time relationship with R & J, the claimant had experienced few temporary lay-offs during that period, R & J did not terminate the claimant during the lay-off and the claimant returned to work for R & J as soon as work became available. The Court distinguished the case before it from other similar cases in which the claimants had failed to establish an on-going employment *22 relationship that demonstrated a connection between their past earnings and their pre-injury ability to earn wages from the allegedly concurrent employer. Hence, Triangle stands for the proposition that, when an employee has concurrent positions at the time of an injury, he is entitled to the calculation of an average weekly wage that includes wages from both jobs, even if the employee was temporarily laid off at the time of his injury.
The Board recognized this fact, but concluded that, because Claimant had terminated his concurrent position at a point in time at which he had returned to work in favor of a position for which he could not begin to work because of elements beyond his control, and consequently did not have wages from that potential position at the time he again became disabled, Claimant had no concurrent employment wages to include in the average weekly wage computation. There is no dispute that, if Claimant had not terminated his employment with Am Gard before he became disabled because of the surgery performed to correct his work-related injury, his average weekly wage calculation would have included those wages. The Board opined that, because his separation from Am Gard was not caused by his work injury, but rather because of his interest in obtaining a different, higher-paying position, Claimant is not entitled to have those former wages included in his average weekly wage calculation.
Claimant argues that the Board erred in concluding that the analysis in Triangle is not applicable in this case. Claimant points out that the temporary lay-off of the claimant in that case is similar to his situation here, where Leonard hired him but he could not begin to work there until after his disabling work-related surgery, at which point he was unable to start because of the surgery necessitated by his work-related injury with Employer. Claimant also argues that this case is not similar to cases in which a claimant who is in a modified status resigns and consequently experiences a loss of earnings for reasons unrelated to a work injury, i.e., personal reasons. Rather, Claimant asserts, notwithstanding Leonard's inability to have him begin work on the initial start date, his work injury is the only reason he did not have two jobs following the surgery for that injury.
Both Claimant and Employer also discuss our decision in Horne v. Workers' Compensation Appeal Board (Chalmers and Kubeck), 840 A.2d 460 (Pa.Cmwlth. 2004). In that case, the claimant, who was an industrial mechanic, had sustained an injury to his knee in the course of his employment. He returned to full duty after several months performing light-duty work for the employer. After returning to his pre-injury status, the claimant apparently was unable to fulfill his full responsibilities in that position. The claimant voluntarily left his employment and accepted a different, less stressful, but more highly compensated position with another employer. When the new employer laid the claimant off, he filed a claim petition against the previous employer for whom he had worked as a mechanic. During the periods of unemployment that followed, the claimant received unemployment compensation benefits.
Ultimately, the claimant obtained another job, but he continued to have problems with his knee during this employment. A physician recommended a particular treatment and the claimant asked a representative of the insurer for his initial employer whether it would pay for the treatment. Following a denial of this request, the claimant filed a claim petition seeking compensation for periods of alleged disability following his lay-off. A WCJ granted the *23 claimant's petition, but did not grant him any wage loss benefits, concluding that the claimant had left his job with his original employer for reasons unrelated to his work injury. Both claimant and employer appealed to the Board, but the Board affirmed. The claimant and employer thereafter filed cross-petitions for review with this Court.
On appeal, we first noted that, in Welsh v. Workmen's Compensation Appeal Board (L.W.Miller Roofing Co.), 686 A.2d 59 (Pa.Cmwlth.1996), this Court had suggested that a claimant in a modified position who leaves his employment "assumes the risks" of that decision, including that the new employer may impose a lay-off. We held in that case that the claimant's decision to resign, not his original work injury, was the cause of his loss in wages, and thereby concluded that the claimant was not entitled to a reinstatement of his benefits. However, in Horne, we hastened to point out that Welsh does not stand for the proposition that such a claimant could never seek reinstatement of benefits. Instead, a claimant needs only to satisfy the traditional burden associated with a reinstatement petition.[9] (In Welsh, the Court noted that the claimant had not contacted his original employer to see if he could return to his modified position.)
However, our holding in Horne was limited to such periods in the claimant's history where his loss of wages was directly attributable to his injury. Hence, we remanded the case solely for the purpose of recalculation of wages for a discrete four-month period after the claimant obtained a treatment to correct problems associated with his work injury. With regard to the period following that treatment, we concluded that our holding in Welsh controlled and that benefits were precluded as any loss of earnings experienced by the claimant was the result of his voluntary decision to leave his prior employment.
In the present case, as Employer properly notes, when Claimant resigned his position with Am Gard, that position no longer provided him with concurrent wages. The employment Leonard offered, which was the reason Claimant terminated his employment with Am Gard, did not occur before or at the time Claimant injured his foot. Hence, the Court cannot regard Leonard as a concurrent employer.
Further, with regard to Claimant's argument that the Board erred by essentially re-characterizing the nature of his work relationship with Leonard, we note that, unlike the facts in Triangle, Claimant established no work history that would substantiate his claim that he had concurrent employment with Leonard. In other words, whether Leonard did actually take the step of hiring Claimant or simply offered him a job, there is no basis upon which to conclude that this opportunity would provide a continuum of employment, such as that which Claimant had with Am Gard, sufficient to support a conclusion that the work and wages there could simply be substituted for the work history Claimant had at Am Gard. In fact, the circumstances relating to the contract dispute that delayed the start of his employment suggest that the consistency of employment Claimant experienced with Am Gard might be different from that which he might experience with Leonard.
Under Triangle, certain factors are important in considering the question of *24 whether concurrent employment should be included in calculating an average weekly wage: the period of employment preceding the injury, whether periods of lay-offs were frequent, whether a concurrent employer terminated an employee during a lay-off and whether a laid-off employee returned to work following such a period. This Court relied on such factors in order to determine whether an employment relationship was on-going such that it supported a conclusion that an employee's past earnings are sufficiently demonstrative of a pre-injury ability to earn wages from the allegedly concurrent employer.
While the reality of Claimant's consistent pre-injury concurrent employment is obvious, he terminated his position with that concurrent employer for reasons unrelated to his injury. Based upon the foregoing discussion, we conclude that the Board did not err with regard to its conclusion that the position Claimant had with Leonard constitutes no basis to include potential wages from that employment in calculating Claimant's average weekly wage.
With regard to Claimant's argument that WCJ Torrey erred in denying his penalty petition, we agree with the Board's reasoning. Although WCJ Torrey acknowledged that Employer had technically violated the Act by omitting Claimant's time-of-injury concurrent employment, he also concluded that the omission was not significant in light of the fact that Claimant had no right to concurrent employment benefits. A WCJ considering a claim for penalties has sole discretion in deciding whether or not to award penalties for a violation of the Act. See City of Philadelphia v. Workers' Compensation Appeal Board (Andrews), 948 A.2d 221 (Pa.Cmwlth.2008). While Claimant argues that WCJ Vallely did not abuse her discretion in awarding penalties, our focus must remain on whether the Board erred in remanding her award for reconsideration in light of the Board's March 22, 2007, decision on the merits and whether WCJ Torrey subsequently erred in declining to award penalties.
We see no error in the Board's decision to remand for reconsideration of the penalty issue. Because the Board reversed WCJ Vallely's decision on the merits, and, consequently, concluded that Claimant was not entitled to the inclusion of concurrent wages in calculating his average weekly wage, the Board reasonably remanded the issue. As to WCJ Torrey's decision not to award any penalty, we reiterate the notion that he had complete discretion to decide whether or not to award a penalty. Andrews. Claimant has not explained how WCJ Torrey's decision in any way constitutes an abuse of that discretion.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 26th day of March, 2009, the order of the Workers' Compensation Appeal Board is affirmed.
NOTES
[1] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2708.
[2] Claimant's testimony suggests that Leonard initiated the hiring process with Claimant based upon an anticipated contractual agreement for services with a third party, i.e., Leonard intended to hire Claimant based upon income from security services it would provide to a new client under a contract with said client. (N.T., March 11, 2005, p. 15). Apparently, Leonard and the new client did not actually sign a contract until some point after July 25, 2004.
[3] The record indicates that "Work Partners" was the insurance entity that handled workers' compensation claims for Employer.
[4] In her opinion, the WCJ appears to refer to Claimant's review petition. This is evidenced by the WCJ reference to Claimant's initial modification petition in her findings of fact as a "second modification petition" and her granting of "claimant's modification petitions" in her order. (WCJ Decision, Finding of Fact No. 6, p. 2 and Order, p. 9).
[5] The Board noted that the WCJ may choose to impose no penalty in her discretion on remand.
[6] This Court's standard of review is limited to determining whether necessary factual findings are supported by substantial evidence, and whether an error of law or violation of constitutional rights has occurred. Tri-Union Express v. Workers' Compensation Appeal Board (Hickle), 703 A.2d 558 (Pa.Cmwlth. 1997). We also not our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), in which that Court held that "review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Leon E. Wintermyer, Inc., 571 Pa. at 203, 812 A.2d at 487.
[7] In other words, the difference, in Claimant's view, signifies whether or not an employment relationship existed between himself and Leonard.
[8] During lay-offs, R & J's employees were required to call in every day to see if work had become available. If an employee failed to call in two days in a row, R & J regarded such action as meaning the employee had quit. Testimony indicated that the claimant did call in every day until work became available.
[9] The traditional burden includes demonstrating that, through no fault of his own, a claimant's earning power is once again adversely affected by his disability and that the disability which gave rise to the original claim continues. See Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990).
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968 F.2d 19
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Joseph M. DACOSTA, Petitioner-Appellant,v.Warden BELASKI, Respondent-Appellee.
No. 91-1377.
United States Court of Appeals, Tenth Circuit.
June 3, 1992.
Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
SEYMOUR, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
Joseph Dacosta is currently incarcerated at FCI Englewood on a thirty-seven month sentence imposed July 23, 1990 upon his plea of guilty. As one of the conditions of Mr. Dacosta's pre-trial release, he was required to live at Pecos Street House, a community treatment center. Upon posting the required bond, Mr. Dacosta entered Pecos Street House on January 10, 1990, and remained there until June 4, 1990. He now appeals the failure of prison officials and the district court to award him credit for the 148 days he spent in Pecos Street House pursuant to the conditions of his pretrial bond.
3
Under the governing statute, a "defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... as a result of the offense for which the sentence was imposed." 18 U.S.C. § 3585(b). In United States v. Woods, 888 F.2d 653 (10th Cir.1989), cert. denied, 104 U.S. 1006 (1990), this court held that the statute does not entitle a prisoner to credit on his sentence for time spent in a halfway house, because the corresponding limitations on the defendant's conduct are not sufficiently restrictive to qualify as "official detention." Id. at 655.1
4
Mr. Dacosta alleges that the conditions of his "detention" at Pecos Street House were more restrictive than those suffered in Woods. While the magistrate who heard this claim in the first instance did not make findings about the actual nature of Mr. Dacosta's stay at Pecos Street House, the record suggests that the facts of the two cases are strikingly similar. Like Mr. Woods, Mr. Dacosta was permitted after approximately one month to leave the treatment center during the day in order to pursue employment. Compare Woods, 888 F.2d at 654 with rec., supp. vol. I, at 5. Similarly, on March 15, 1990, the terms of Mr. Dacosta's bond were modified to permit him to participate in a "Level System program," which might eventually have entitled him to weekend furloughs. Compare Woods, 888 F.2d at 653 with rec., supp. vol. I, at 9. The facts here are apparently uncontested, and we do not see any meaningful differences between this case and Woods which might require a different result here. Finally, Woods makes clear that our interpretation of section 3585(b) does not violate the constitutional guarantees of the Equal Protection Clause or the Fifth Amendment. 888 F.2d at 656-57.
5
Accordingly, Woods squarely controls the instant case, and we AFFIRM.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
We are aware that several circuits have disagreed with this result, see, e.g., Brown v. Rison, 895 F.2d 533 (9th Cir.1990). However, we are bound by controlling Tenth Circuit authority, regardless of any contrary holdings by other circuits
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656 F.2d 411
8 Fed. R. Evid. Serv. 1526
UNITED STATES of America, Plaintiff-Appellee,v.John DOE, Defendant-Appellant.
No. 80-1485.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 3, 1981.Decided June 29, 1981.As Corrected Aug. 19, 1981.
Peter Berzins, Seattle, Wash., for defendant-appellant.
Francis J. Diskin, Asst. U.S. Atty., Seattle, Wash., for the U. S.
Appeal from the United States District Court For the Western District of Washington.
Before BROWNING, Chief Judge, TANG, Circuit Judge, and HEMPHILL,* District Judge.
PER CURIAM:
1
Appellant John Doe1 was convicted of conspiracy to import heroin and related substantive offenses. The government relied in part on the testimony of Richard Roe, a courier for the heroin importation scheme. On direct examination Roe testified that a quantity of heroin was delivered to him in Bangkok, Thailand by appellant's wife and that he carried it from Bangkok to Seoul, Korea as a passenger on a commercial airline. He testified that he saw and spoke with Mrs. Doe on the flight from Bangkok to Seoul. The prosecutor then asked Roe whether he had made any arrangement to be contacted by Mrs. Doe while in the United States. Roe answered that he had given Mrs. Doe two phone numbers at which he could be reached.
2
On cross-examination, defense counsel asked if Roe had had a conversation with Mrs. Doe during the flight. After eliciting an affirmative answer, counsel inquired about details of the conversation. He then asked if there had been any discussion about appellant. The government objected. Defense counsel informed the court that Roe would testify that Mrs. Doe had said that her husband knew nothing about her drug importation activities. The trial court excluded the proffered testimony.
3
Appellant argues that the attempted cross-examination was within the scope of direct; that the government had "opened the door" with respect to Roe's in-flight conversation with Mrs. Doe and the defense should have been permitted to elicit on cross-examination portions of the conversation favorable to appellant.
4
The government had asked only one question relating to Roe's conversation with Mrs. Doe on the plane: "What, if any, arrangements did you make concerning contact with you in the United States after the operation was completed? Did you provide her with any point of contact?" Roe's answer did not implicate appellant. The testimony appellant sought to elicit on cross-examination was unrelated to Roe's direct testimony; it would not have served to correct a misleading impression left by selective questioning on direct. It was therefore not admissible under the doctrine of "curative admissibility." See United States v. Childs, 598 F.2d 169, 174 (D.C.Cir.1979); United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir.1971).
5
AFFIRMED.
*
Honorable Robert W. Hemphill, Senior Judge, United States District Court for the District of South Carolina, sitting by designation
1
This case arises from the same set of transactions as United States v. Doe, 655 F.2d 920 (9th Cir. 1981). Pseudonyms were used in the opinion in Doe to protect certain parties to the case. Id., at 922 n. 1. We do the same here to preserve the protection the majority in Doe sought to accomplish
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538 F.Supp.2d 74 (2008)
Kenneth WILLIAMS, Petitioner,
v.
WARDEN-CENTRAL DETENTION FACILITY et al., Respondents.
Civil Action No. 07-0702 (RMU).
United States District Court, District of Columbia.
March 11, 2008.
Kenneth Williams, Quantico, MD, pro se.
Michael P. Bruckheim, Office of the Attorney General, District of Columbia, Thomas S. Rees, U.S. Attorney's Office, Washington, DC, for Respondents.
MEMORANDUM OPINION
RICARDO M. URBINA, District Judge.
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING THE RESPONDENTS' MOTION TO DISMISS
I. INTRODUCTION
The pro se petitioner is incarcerated at the District of Columbia Jail for charges pending against him in the Superior Court for the District of Columbia ("Superior Court"). This matter is before the court *75 on his petition for a writ of habeas corpus, seeking to invoke his right to a speedy trial, or in the alternative, seeking to be released from custody and to have all charges against him dropped. The respondent[1] moves to dismiss, arguing that the petitioner has failed to exhaust his remedies in the District of Columbia courts. Because the petitioner's claims can be resolved in the Superior Court, and because the petitioner has not presented any special circumstances justifying pretrial federal review of his detention, considerations of comity preclude this court from interfering with the ongoing Superior Court proceedings. Therefore, the court denies the petition for a writ of habeas corpus and grants the respondent's motion to dismiss.
II. FACTUAL & PROCEDURAL BACKGROUND[2]
The petitioner was arrested on July 2, 2005 and brought before the Superior Court on several charges.[3] Resp.'s Mot. to Dismiss ("Resp.'s Mot.") at 1; Resp.'s Show Cause Response at 1. On January 20, 2006 the petitioner failed to appear at his arraignment, and the court issued a bench warrant. Resp.'s Mot. at 1. The petitioner was arrested pursuant to the execution of the warrant on April 12, 2006, and a status hearing was set. The petitioner was released, but he again failed to appear at the scheduled status hearing. Id. at 2. Subsequently, at some unknown date, the petitioner was re-arrested. The Superior Court sent a detainer to the Maryland Department of Correction on June 27, 2006, notifying it that an arrest warrant charging the petitioner had been issued. Pet'r's Reply, Ex. 3. Subsequently, the Superior Court issued a writ of habeas ad prosequendum on October 18, 2006 to the warden of the Eastern Correctional Institution and the United States Marshal for the State of Maryland, ordering the petitioner to appear for arraignment in the District of Columbia on December 4, 2006. Resp.'s Mot. at 2. The petitioner then filed pro se a "Motion to Dismiss Indictments." Id.
The petitioner was arraigned and pled not guilty to all charges, and on January 12, 2007, he filed pro se a Motion to Dismiss in the Superior Court for failure to comply with the Speedy Trial Act. Id. at 2-3. A forensic examination was requested by the Superior Court, but the petitioner was uncooperative. Id. at 3. Following an unsuccessful attempted competency examination of the petitioner, Judge Iscoe of the Superior Court denied both pending motions to dismiss and ordered the petitioner to an inpatient competency examination to determine the petitioner's competency to stand trial. Id. On April 27, 2007, the petitioner was deemed competent to stand trial. The petitioner subsequently expressed dissatisfaction with his counsel, and the Superior Court granted counsel's motion to withdraw. Id.
The Superior Court appointed new counsel on May 15, 2007, but the petitioner nonetheless filed pro se a petition for a writ of habeas corpus on April 17, 2007 in this court, alleging prosecutorial misconduct and violations of the Interstate *76 Agreement on Detainers,[4] the Fifth Amendment presentment and due process clauses, the Sixth Amendment right to a speedy trial, and the Fourteenth Amendment due process clause. See generally Pet. for Writ of Habeas Corpus ("Pet."). The respondent filed a Motion to Dismiss on May 21, 2007, followed by numerous memoranda, notices and replies by the petitioner. The court now simultaneously addresses the petition for writ of habeas corpus and the respondent's motion to dismiss the petition.
III. ANALYSIS
A. 28 U.S.C. § 2241 Governs the Permissibility of Pretrial Habeas Petitions
In considering habeas petitions, Congress makes a distinction between pretrial and post-conviction petitions. 28 U.S.C. § 2254[5] governs habeas petitions filed after a state court judgment, whereas 28 U.S.C. § 2241[6] governs a "person in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him." Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.1987) (holding that the district court improperly construed a pro se defendant's pretrial habeas corpus petition under section 2254 instead of section 2241, since section 2254 only applies to post-judgment petitions); see also Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 503-04, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).
Prior to a judgment of conviction in state court, "federal habeas corpus does not lie, absent `special circumstances,' to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court." Braden, 410 U.S. at 489, 93 S.Ct. 1123 (quoting Ex parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 29 L.Ed. 868 (1886)). There is "an important distinction between a petitioner who seeks to `abort a state proceeding or to disrupt the orderly functioning of state judicial processes' ... and one who seeks only to enforce the state's obligation to bring him promptly to trial." Brown v. Estelle, Jr., 530 F.2d 1280, 1283 (5th Cir.1976) (quoting Braden, 410 U.S. at 491, 93 S.Ct. 1123). Federal courts, respecting comity, will interfere with "state courts only in rare cases where exceptional circumstances of peculiar urgency are shown to exist." Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572 (1944) (internal quotations omitted).
B. The Court Denies the Petition for a Writ of Habeas Corpus and Grants the Respondent's Motion to Dismiss
In his petition for a writ of habeas corpus, the petitioner asserts that he has been detained as a result of prosecutorial misconduct and in violation of several constitutional rights and the Interstate Agreement on Detainers. See Pet. at 5-7. In reply, the respondent claims that the petitioner has failed to exhaust his state court remedies and that principles of comity preclude this court from interfering with the *77 Superior Court proceedings. Resp.'s Mot. at 4-7.
The respondent's challenge that the petitioner has not exhausted his state court remedies slightly misses the mark. The respondent is correct that there is no evidence in the record to suggest that the plaintiff has exhausted his remedies, but exhaustion of state remedies is not statutorily required with pretrial habeas corpus petitions. See. 28 U.S.C. § 2241. The larger issue at play here is that exhaustion of state court remedies facilitates comity among the courts. "[A] body of case law has developed holding that although section 2241 established jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state[7] court or by other state procedures available to the petitioner." Dickerson, 816 F.2d at 225; see 28 U.S.C. § 2241(c)(3); United States ex rel. Scranton v. New York, 532 F.2d 292, 294 (2d Cir.1976) (stating that "decisional law has superimposed" a requirement that state remedies be exhausted as a prerequisite to federal habeas relief). Exhaustion of all remedies in the state courts, before federal intervention, protects the state court's ability to confront and resolve constitutional issues within their jurisdiction and prevents unnecessary federal interference in the state adjudicatory process. See Dickerson, 816 F.2d at 225 (applying the exhaustion doctrine to habeas petitions before the court under section 2241(c)(3)). Indeed, federal interference in a state proceeding will only issue in the rarest of circumstances. E.g., Braden, 410 U.S. at 508, 93 S.Ct. 1123 (noting that an extraordinary circumstance justifying pretrial federal interference exists when a state brings a criminal charge against a petitioner where it lacks jurisdiction) (Rehnquist, J. dissenting).
The proceedings in the Superior Court are at their earliest stages, due in no small part to the petitioner's failure to appear at various hearings, his failure to cooperate with a forensic examination, his objections to counsel and his filing of multiple motions to dismiss and a motion for recusal. The record bears no suggestion that the plaintiff has presented any of the claims in his petition to the Superior Court. Therefore, the petitioner's conduct suggests, at best, an effort to delay the Superior Court proceeding of the case, and this represents a prohibited use of § 2241. Braden, 410 U.S. at 493, 93 S.Ct. 1123; see e.g., Toney v. Bowles, 2001 U.S. Dist. LEXIS 13812, at *8 (N.D.Tex. July 11, 2001). The petitioner's allegations of prosecutorial misconduct and violations of the Interstate Agreement on Detainers, the Fifth Amendment presentment and due process clauses, the Sixth Amendment right to a speedy trial, the Fourteenth Amendment due process clause are challenges that may be properly resolved in the Superior Court trial proceedings. See Braden, 410 U.S. at 493, 93 S.Ct. 1123 (emphasizing that federal habeas corpus will not be allowed as a pretrial motion forum for state prisoners). In addition, none of the claims present an "exceptional circumstance of peculiar urgency" that justifies federal intervention. United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 70 L.Ed. 138 (1925). Justice is, therefore, best served by this court respecting comity and allowing the petitioner to present the merits of the case to the *78 Superior Court for resolution. Accordingly, the court denies the petition and grants the respondent's motion to dismiss.
IV. CONCLUSION
For the reasons stated above, the court denies the petition for a writ of habeas corpus and grants the respondent's motion to dismiss. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 11th day of March, 2008.
NOTES
[1] The respondents in this case are the Warden of the Central Detention Facility and the U.S. Attorney's Office. The court will refer to the respondents in the singular.
[2] The record as presented by both parties creates ambiguity as to several facts. Nevertheless, the court has sufficient information to resolve the petition and the instant motion.
[3] The facts of the offenses allegedly committed by the petitioner are not material to the court's resolution of the petition or the defendant's motion.
[4] See generally D.C.Code. § 24-801.
[5] 28 U.S.C. § 2254 provides in relevant part that "a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court...." 28 U.S.C. § 2254(a) (emphasis added).
[6] 28 U.S.C. § 2241 provides in relevant part that "[t]he writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States...." 28 U.S.C. § 2241(c)(3).
[7] The D.C. Circuit has considered the District of Columbia courts as "`state' courts for the purposes of exhaustion and federal habeas corpus jurisdiction." Milhouse v. Levi, 548 F.2d 357., 360 n. 6 (D.C.Cir.1976).
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18 Ariz. App. 368 (1972)
502 P.2d 169
John D. GRAY and Laura L. Gray, his wife, Appellants,
v.
Charles E. KOHLHASE and Earl M. Lines, dba Kohlhase and Lines, a general partnership, Appellees.
No. 2 CA-CIV 1054.
Court of Appeals of Arizona, Division 2.
October 25, 1972.
Rehearing Denied November 29, 1972.
Review Denied January 2, 1973.
*369 Anderson, Welker & Flake, by Dudley S. Welker, Safford, for appellants.
Killian & Legg, by John G. Hough, Mesa, for appellees.
HATHAWAY, Judge.
Appellants, defendants below, seek reversal of a judgment entered on a jury verdict of $17,000 in favor of the appellees, plaintiffs below.
The basis of appellees' claim against appellants was a real estate commission allegedly earned by appellees in connection with the sale of appellants' ranch property. Their complaint pleaded alternative theories; express contract and quantum meruit. Appellants' responsive pleading asserted, inter alia, the defense of the Statute of Frauds and additionally, a counterclaim for abuse of process arising out of a lawsuit which had previously been filed and dismissed without prejudice by appellees in Greenlee County.
At the conclusion of all the evidence, both parties moved for a directed verdict, appellants as to appellees' claim and appellees as to appellants' counterclaim. The court granted the latter motion and submitted to the jury the question of whether appellees were entitled to a commission.
The court instructed the jury that it had directed a verdict on the counterclaim and that it had directed a verdict against appellees on two counts, i.e., a quantum meruit theory and an oral employment contract. It did, however, instruct the jury that a party may be estopped to assert the defense of the Statute of Frauds when he had induced or permitted another to change his position to his detriment in reliance solely upon an oral agreement within the operation of the Statute of Frauds.
Appellants present various grounds for reversal including the sufficiency of the evidence to support the verdict, certain evidentiary rulings, error in jury instructions, refusal to grant their motion for a directed verdict, and the granting of a directed verdict as to their counterclaim in favor of the appellees. Since we are of the opinion that the Statute of Frauds barred appellees' claim, we address ourselves solely to the court's refusal to direct a verdict in favor of the appellants.
A.R.S. § 44-101 provides in pertinent part:
"No action shall be brought in any court in the following cases unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereunto lawfully authorized:
* * * * * *
7. Upon an agreement authorizing or employing an agent or broker to purchase or sell real property, or mines, for compensation or a commission."
We have held that a formal listing agreement is not required in order to satisfy the Statute of Frauds. Realty Exchange Corp. v. Cadillac Land & Dev. Co., 13 Ariz. App. 232, 475 P.2d 522 (1970); Maricopa Realty & Trust Co. v. VRD Farms, Inc., 10 Ariz. App. 524, 460 P.2d 195 (1969). In the Maricopa Realty & Trust Co. case, the escrow instructions which we deemed a sufficient memorandum of the parties' agreement, the amount of the realty *370 commission was stated with certainty. In the case sub judice, the memoranda signed by appellants did not set forth the amount of the commission to be paid.[1]
A memorandum on which an action by a real estate broker to recover commission is based must contain the terms and conditions of the promise sought to be enforced. McAlister v. Cooper, 91 Ariz. 191, 370 P.2d 767 (1962); Durham v. Dodd, 79 Ariz. 168, 285 P.2d 747 (1955). A statement of the compensation or commission to be paid is a vital part of the contract and unless there is some memorandum in writing stating the amount of the commission signed by the person to be charged or his agent, the contract cannot be enforced. Robertson v. Hansen, 89 Idaho 107, 403 P.2d 585 (1965); Carney v. McGinnis, 68 N.M. 68, 358 P.2d 694 (1961); Owen v. Hendricks, 426 S.W.2d 955 (Tex.Civ.App. 1968), aff'd 433 S.W.2d 164; See Annot. 9 A.L.R.2d 754 § 5 (1950), and cases cited therein.
We recognize that there is a minority view followed in California that the amount of commission may be shown by parol where there is a sufficient memorandum to show the fact of employment. See Beazell v. Schrader, 59 Cal.2d 577, 30 Cal. Rptr. 534, 381 P.2d 390 (1963). It is true that in Maricopa Realty & Trust Co. v. VRD Farms, Inc., supra, we indicated that the chief element required to be shown in writing is the fact of employment. We did not, however, as the parties to this litigation believed, endorse the admission of parol evidence to show the amount of commission. In fact, we stated:
"These escrow instructions constituted a sufficient memorandum of the promise sought to be enforced since the subject matter of the realty commission was stated with reasonable certainty. (citations omitted)." 10 Ariz. App. at 527, 460 P.2d at 198.
A memorandum, in order to satisfy a contract within the Statute of Frauds, must state the terms and conditions of all the promises constituting the contract and any deficiency in this regard cannot be supplied by parol. Durham v. Dodd, supra. The instrument involved in Oregon Home Builders v. Crowley, 87 Or. 517, 170 P. 718, reh. den. 87 Or. 536, 171 P. 214 (1918) was held sufficient to satisfy the Statute of Frauds, but the court stated:
"It is true that the writing must state the amount of the commission agreed to be paid to the broker, but it is also true that this requirement is predicated upon the fact that the amount of the commission agreed upon constitutes one of the terms of the contract which must be in writing: ... Subdivision 8 [the Oregon counterpart of our A.R.S. § 44-101(7)] was designed as a remedy for a twofold evil: (1) Brokers claiming commissions when they had never been authorized to sell; and (2) brokers claiming excessive rates although authorized to sell. The conclusion ..., that the writing must state the amount or rate of commission to be paid, is justified by the history and purpose of the statute." 170 P. at 721, 722.
We hold, therefore, that the memoranda relied upon by appellees were insufficient to satisfy the Statute of Frauds for lack of an essential element, i.e., the amount of commission. Such deficiency cannot be remedied by resort to parol evidence, *371 Custis v. Valley Nat'l Bank, 92 Ariz. 202, 375 P.2d 558 (1962), nor is parol evidence available to supply a missing term by labeling an agreement "ambiguous." Lyon v. Big Bend Dev. Co., 7 Ariz. App. 1, 435 P.2d 732 (1968).
We also find no merit in appellees position, as asserted in their pre-trial memorandum, that appellants were estopped from invoking the Statute of Frauds as a defense. It is true that one may be estopped to assert the defense of the statute when he had induced or permitted another to change his position to his detriment in reliance upon an oral agreement within the operation of the statute. O'Malley Inv. and Realty Co. v. Trimble, 5 Ariz. App. 10, 422 P.2d 740 (1967); Custis v. Valley Nat'l Bank, supra. However, the evidence necessary to invoke the doctrine of equitable estoppel is measured by the detriment sustained by the party invoking it in acting upon the oral agreement or altering his position and not merely the benefits he would have received under the oral agreement. Custis v. Valley Nat'l Bank, supra; Funk v. Anderson-Rooney Operating Co., 423 P.2d 465 (Okl. 1967).
Appellants were not estopped to plead the Statute of Frauds by reason of an oral agreement as to payment of commission and the fact that appellees actually sold their property to appellants' customer. An estoppel to plead the statute cannot be predicated upon the seller's refusal to comply with an oral promise to pay a commission. Herzog v. Blatt, 80 Cal. App.2d 340, 180 P.2d 30 (1947); Augustine v. Trucco, 124 Cal. App.2d 229, 268 P.2d 780 (1954); Heyman v. Adeack Realty Co., 102 R.I. 105, 228 A.2d 578 (1967); Hart v. Billings Public Stockyards, 486 P.2d 120 (Mont. 1971).
A real estate broker is presumed to know that an oral contract of employment for rendition of services in negotiating a sale of real estate for compensation or a commission is invalid. 23 Cal.Jur.2d Frauds, Statute of § 146. Although denial of a commission to a broker who has procured a purchaser of property and has expended time and effort on behalf of the seller may seem harsh, we believe the answer to real estate brokers and agents is found in the following statement in Pac. Southwest Dev. Corp. v. Western Pac. R.R. Co., 47 Cal.2d 62, 301 P.2d 825 (1956):
"Plaintiff is a licensed real estate broker and, as such, is presumed to know that contracts for real estate commissions are invalid and unenforceable unless put in writing and subscribed by the prson to be charged.
* * * * * *
Nevertheless, plaintiff failed to secure proper written authorization to protect itself in the transaction. Rather it assumed the risk of relying upon claimed oral promises of defendant, and it has no cause for complaint if its efforts go unrewarded." [citations omitted] 301 P.2d at 831.
See also Restatement, Contracts § 355(3).
Appellants additionally contend that the trial court erred in directing a verdict in favor of the appellees on appellants' counterclaim seeking damages for a purported abuse of process. The gravamen of appellants' counterclaim was the filing of a lis pendens in appellees' previous action (which was subsequently dismissed), filed in Greenlee County. Their position was that A.R.S. § 12-1191, making the recording of the lis pendens constructive notice of all that is claimed in a lawsuit, applies only to "an action affecting title to real property." Therefore, they argue, since the Greenlee County action was one for a debt allegedly owed by appellants, the filing of the lis pendens was an abuse of process. We agree with the trial court's summary disposition of the counterclaim.
In the case of Meadows v. Bakersfield Sav. & Loan Ass'n, 250 Cal. App.2d 749, 59 Cal. Rptr. 34 (1967), an action for abuse of process was predicated on the fact that the defendant caused a "notice of default and election to sell under deed of trust" to be recorded. The California court, in holding *372 that a nonsuit was properly granted, stated:
"Thus, the essence of the tort `abuse of process' lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. Since defendant took no action pursuant to authority of court, directly or by ancillary proceedings, no judicial process was abused." 59 Cal. Rptr. at 37.
For the foregoing reasons, the judgment in favor of the appellees as to their claim for a commission is reversed and is affirmed as to appellants' counterclaim.
KRUCKER, C.J., and HOWARD, J., concur.
NOTES
[1] One writing consisted of escrow instructions which merely indicated that the agents' commission in an unspecified amount, was to be paid by the appellants to the appellees.
Another memorandum, a printed purchase contract and receipt form, contained the following printed provision:
"I [or we] agree to sell the above described property on the terms and conditions herein stated and agreed to pay the above signed broker as commission the sum of ____ DOLLARS ($ ____) or one-half (1/2) the deposit in case same is forfeited by the purchaser, provided same shall not exceed the full amount of commission."
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114 N.H. 763 (1974)
STATE OF NEW HAMPSHIRE
v.
JOHN W. TIMBURY.
STATE OF NEW HAMPSHIRE
v.
MAX WELCH.
No. 6875.
Supreme Court of New Hampshire.
November 29, 1974.
*764 Warren B. Rudman, attorney general, and Gregory H. Smith, attorney (Mr. Smith orally), for the State.
David B. Shepatin, by brief and orally, for the defendants.
GRIMES, J.
The single issue in this case is whether the instructions to the jury regarding what constitutes a dwelling house were insufficient.
Defendant Welch was indicted for burning on June 28, 1972, a dwelling house owned by the defendant Timbury, and defendant Timbury was indicted for procuring the burning of the same premises, both in violation of RSA 584:1. A violation of RSA 584:1 relating to burning of dwelling houses carries a maximum penalty of thirty years. RSA 584:2 relating to the burning of any other building carries a maximum penalty of twenty years. Defendants were tried by jury before Loughlin, J., and found guilty under RSA 584:1. Defendant Welch was sentenced to not more than five years nor less than one year and a day in State prison, while defendant Timbury was sentenced to one year in the house of correction, three months suspended, and placed on probation for four years after his release. Defendants' exceptions were transferred by Johnson, J.
The court instructed the jury that a dwelling house is "a building that can be used for human habitation, capable of being used by people to live in. The state does not have to prove that humans or people were living within the building at the time of the fire. The state does have the burden of proving beyond a reasonable doubt that the building burned was a dwelling house." Although not excepting to the charge as given, defendants excepted to the failure to charge in accordance with their requests one and two. One *765 request would have instructed the jurors that if they found that the building had been abandoned as a dwelling or put to other use or was without a tenant or occupant for a long time, then it would not be a dwelling. The other called for an instruction that if it were found that the structure was incomplete even though designed as a dwelling and when complete could be so used, then it must be found not to be a dwelling.
The building in question was built in 1969 and intended as a summer cottage. The sidewalls were prefabricated and the roof timbers were precut. Inside, there was a "large kitchen-living room area" and four bedrooms, one of which had been used to house a chemical toilet. These rooms were partitioned off with sheetrock, but there were no ceilings. The living room had been three-quarters paneled. It was furnished and equipped with a gas floor furnace, gas stove and gas lights. There was no electricity, and water was obtained from a well but was not piped into the house. A gas tank had been installed and several deliveries of gas had been made, indicating a use of the appliances from 1968 until the fall of 1971. The last delivery was made in the fall of 1971. The gas tank was removed in February or March of 1972 because the supplier needed the tank and another tank could easily replace it when one was needed. The tank which was removed was empty. Although defendant Timbury testified that no one had ever slept in the house, his wife testified about washing sheets which were taken from the house.
At the time of the fire, there were one or two windows which were broken, but there was testimony that defendant Welch had been employed to repair them and that some friends of Timbury were going to occupy the cottage over the July Fourth weekend. The place had been on the market for sale for about two years because the Timburys were not using it much since their work schedules prevented them from having time off together.
We hold that on the evidence in this case, the charge was sufficient. Arson, like burglary, is an offense against the habitation and there can be no arson of a house in which there can be no burglary. See R. Perkins, Criminal Law § 2, at *766 223 (2d ed. 1969). RSA 583:7 relating to burglary in defining a dwelling house includes "cottages and camps used or occupied only a portion of the time". This building was built as a summer dwelling and had been completed to such an extent that it could be used as a dwelling. The fact that it had not been used extensively does not change its character. People v. Losinger, 331 Mich. 490, 50 N.W.2d 137 (1951). The evidence would not justify a finding that it had been put to other uses, had been abandoned, or had lost its character as a dwelling house. Nor could it be found to be incomplete in the sense that it was not yet suitable as a dwelling. It was not error, therefore, not to instruct in accordance with defendants' requests.
Exceptions overruled.
All concurred.
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[Cite as State v. Turney, 2020-Ohio-4149.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
:
STATE OF OHIO : Appellate Case No. 28364
:
Plaintiff-Appellee : Trial Court Case No. 2017-TRC-10914
:
v. : (Criminal Appeal from
: Municipal Court)
MARIA TURNEY :
:
Defendant-Appellant
...........
DECISION AND ENTRY
Rendered on the 20th day of August, 2020
...........
PER CURIAM:
{¶ 1} This matter comes before us on Maria Turney’s App.R. 26(A) application for
reconsideration. We affirmed her conviction for operating a motor vehicle under the influence
of alcohol in violation of R.C. 4511.19(A)(1)(d) in State v. Turney, 2d Dist. Montgomery No.
-2-
28364, 2020-Ohio-3298.
{¶ 2} “ ‘App.R. 26 provides a mechanism by which a party may prevent miscarriages
of justice that could arise when an appellate court makes an obvious error or renders an
unsupportable decision under the law.’ ” State v. Gillispie, 2012-Ohio-2942, 985 N.E.2d 145,
¶ 9 (2d Dist.), quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th
Dist.1996). “The test generally applied to a motion for reconsideration is that it must call the
court’s attention to obvious errors in a decision or must raise issues that the court either
failed to consider or did not fully consider when the original decision was made.” Id.
{¶ 3} Turney contends that we made an obvious error in paragraph 37 of our opinion.
We agree. The problematic paragraph reads:
But Durnwald was both an impairment and a per se case, and the disputed
evidence was argued to be admissible in response to the impairment charge.
That distinction was noted by the Tenth District in State v. Sabo, 10th Dist.
Franklin No. 04AP-1114, 2006-Ohio-1521. In Sabo the trial court had denied
admission of evidence of “the actions and level of impairment exhibited by a
person with a .22 BAC test level compared to the defendant’s behavior.” Id. at
¶ 27. The evidence had been offered “for the sole purpose of refuting the [per
se] charge.” Id. at ¶ 31. The case before us involved exclusively a per se
charge, and we agree with the conclusion in Sabo that levels of impairment
and comparisons of that behavior to the accused’s behavior are not admissible
in regard to a per se charge.
Turney correctly points out that the quotation from Sabo is talking about the facts of State v.
Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234 (6th Dist.), so we are
-3-
actually quoting the facts not of Sabo but of Durnwald, which we discussed in the previous
paragraph of our decision. We agree that we made an obvious mistake in our opinion. So
we grant Turney’s application for reconsideration and examine whether our mistake affected
the judgment.
{¶ 4} The first sentence of paragraph 37 is correct: “Durnwald was both an
impairment and a per se case, and the disputed evidence was argued to be admissible in
response to the impairment charge.” The second part of that sentence is based on
Durnwald’s statement that “Dr. Staubus was not, however, permitted to testify regarding the
expected behavior of someone who tested at 0.22 BAC level, for the purposes of refuting
the R.C. 4511.19(A)(1) impairment charge.” (Emphasis added.) Durnwald at ¶ 50.
Nevertheless, the appellate court determined that the behavior testimony “was relevant to
appellant’s defense against the accuracy of his particular BAC test” because it may have
assisted “the jury’s understanding of the weight to be given to the BAC test results for each
charge.” Id. To prove an impairment charge, the state must prove that the defendant was
“under the influence.” R.C. 4511.19(A)(1)(a). But to prove a per se charge, the state must
prove only that the defendant had a prohibited BAC level. The defendant in Durnwald had
been charged with both types of OVI charges, and to prove both charges, the state
presented a BAC test result showing that the defendant had a 0.22 BAC level. The Durnwald
court’s conclusion that the lack-of-impairment evidence should be admissible to rebut both
charges cannot be reconciled with its statement that the evidence was excluded by the trial
court to rebut the impairment charge. In order to avoid any potential confusion from the first
sentence of paragraph 37, we will reword the first sentence to read: “But Durnwald was both
an impairment and a per se case, and the court of appeals commented that the trial court
-4-
had not admitted the disputed evidence in response to the impairment charge.”
{¶ 5} Sabo was also both an impairment and a per se case. But in Sabo, the
defendant sought to rebut the per se charge with expert testimony that challenged the
accuracy of the BAC test result based on the potential effects of gastroesophageal reflux
disease (GERD), which testimony the trial court did not permit. The Sabo court distinguished
Durnwald because in that case the disputed testimony concerned expected behavior offered
to rebut the impairment charge. Sabo, 2006-Ohio-1521, at ¶ 31 (saying that “the Durnwald
case stands for a different proposition than that asserted in the instant case”). Sabo went on
to conclude that the GERD testimony was properly excluded.
{¶ 6} The present case is distinguishable from both Durnwald and Sabo. Like
Durnwald, the disputed expert testimony here concerns expected behavior of impairment,
but unlike that case, the testimony was offered for the sole purpose of rebutting a per se
charge. And like Sabo, the testimony was offered for the purpose of rebutting a per se
charge, but unlike Sabo, the testimony did not concern the potential effects of GERD. While
our reliance on Sabo’s conclusion in paragraph 37 of our opinion is misplaced, that Durnwald
is distinguishable from the present case remains true. Evidence of the lack of impairment
was otherwise admissible in Durnwald because there was a charge of impairment. We
continue to adhere to our conclusion in the final sentence of the paragraph that “levels of
impairment and comparisons of that behavior to the accused’s behavior are not admissible
in regard to a per se charge.” We note too that we gave other reasons in our opinion for our
conclusion that the trial court did not abuse its discretion by excluding the expected-
impairment evidence.
{¶ 7} We conclude that the error in our opinion is therefore harmless, as it did not
-5-
affect our resolution of the matter at issue. So our final judgment in this case is unaffected.
Still, we will file an amended opinion that corrects paragraph 37 to read as follows:
But Durnwald was both an impairment and a per se case, and the court of
appeals commented that the trial court had not admitted the disputed evidence
in response to the impairment charge. That distinction was noted by the Tenth
District in State v. Sabo, 10th Dist. Franklin No. 04AP-1114, 2006-Ohio-1521.
Sabo was also both an impairment and a per se case, but unlike Durnwald,
the disputed evidence in Sabo concerned the potential effects of GERD and
was presented to rebut only the per se charge. Also, in Sabo there was no
testimony that the defendant even had the condition. It was on these bases
that Sabo distinguished Durnwald. The case before us involved exclusively
expected-behavior testimony to rebut a per se charge. We conclude that levels
of impairment and comparisons of that behavior to the accused’s behavior are
not admissible exclusively in regard to a per se charge.
{¶ 8} SO ORDERED.
MARY E. DONOVAN, Judge
MICHAEL T. HALL, Judge
JEFFREY M. WELBAUM, Judge
-6-
Copies mailed to:
Stephanie L. Cook
City of Dayton Prosecutor’s Office
335 W. Third Street, Room 372
Dayton, OH 45402
Blaise Katter
3240 Henderson Road, Suite B
Columbus, OH 43220
Hon. Thomas Hagel, Visiting Judge
c/o Dayton Municipal court
301 W. Third Street
Dayton, OH 45402
COA2//LR
|
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Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: THE EXXON VALDEZ,
GRANT BAKER; SEA HAWK
SEAFOODS, INC.; COOK INLET
PROCESSORS, INC.; SAGAYA CORP.;
WILLIAM MCMURREN; PATRICK L.
MCMURREN; WILLIAM W. KING;
GEORGE C. NORRIS; HUNTER CRANZ;
RICHARD FEENSTRA; WILDERNESS No. 04-35182
SAILING SAFARIS; SEAFOOD SALES, D.C. No.
INC.; RAPID SYSTEMS PACIFIC LTD.; CV-89-00095-HRH
NAUTILUS MARINE ENTERPRISES,
INC.; WILLIAM FINDLAY ABBOTT,
JR.,
Plaintiffs-Appellees,
v.
EXXON MOBILE CORP; EXXON
SHIPPING CO.,
Defendants-Appellants.
6033
6034 IN RE: THE EXXON VALDEZ
In re: THE EXXON VALDEZ,
GRANT BAKER; SEA HAWK
SEAFOODS, INC.; COOK INLET
PROCESSORS, INC.; SAGAYA CORP.; No. 04-35183
WILLIAM MCMURREN; PATRICK L.
D.C. No.
MCMURREN; WILLIAM W. KING;
CV-89-00095-HRH
GEORGE C. NORRIS; HUNTER CRANZ;
RICHARD FEENSTRA; WILDERNESS ORDER
SAILING SAFARIS; SEAFOOD SALES, AMENDING
INC.; RAPID SYSTEMS PACIFIC LTD.; OPINION AND
NAUTILUS MARINE ENTERPRISES, DISSENTS TO
INC.; WILLIAM FINDLAY ABBOTT, ORDER AND
JR., AMENDED
Plaintiffs-Appellants, OPINION
v.
EXXON MOBILE CORP; EXXON
SHIPPING CO.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Chief Judge, Presiding
Argued and Submitted
January 27, 2006—San Francisco, California
Filed December 22, 2006
Amended May 23, 2007
Before: Mary M. Schroeder, Chief Judge,
James R. Browning and Andrew J. Kleinfeld, Circuit Judges.
IN RE: THE EXXON VALDEZ 6035
Order;
Dissent to Order by Judge Kozinski;
Dissent to Order by Judge Bea;
Per Curiam Opinion;
Dissent by Judge Browning
6038 IN RE: THE EXXON VALDEZ
COUNSEL
Walter Dellinger, O’Melveny & Myers, LLP, Washington,
D.C., and John F. Daum, O’Melveny & Myers LLP, Los
Angeles, California, for the defendants-appellants, cross-
appellees.
Brian B. O’Neill, Faegre & Benson, Minneapolis, Minnesota,
and David C. Tarshes, Davis, Wright, Tremaine, LLP,
Anchorage, Alaska, for the plaintiffs-appellees, cross-
appellants.
IN RE: THE EXXON VALDEZ 6039
ORDER
IT IS ORDERED THAT:
The opinion in In re Exxon Valdez, 472 F.3d 600 (9th Cir.
2006) is amended as follows: On page 621, delete the first full
paragraph commencing with “There is also a limit on the law
of the case doctrine . . .” and concluding with “ . . . may not
generally be used as part of the calculation of harm.”
With that amendment, the panel has voted to otherwise
deny the petition for panel rehearing.
The petition for panel rehearing is DENIED.
The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of votes of the nonrecused active judges in favor of
en banc consideration. Fed. R. App. 35.1
The petition for rehearing en banc is DENIED.
KOZINSKI, Circuit Judge, dissenting from the order denying
the petition for rehearing en banc:
For two centuries, maritime law has protected ship owners
from liability for punitive damages based solely on the fault
of captain and crew. See Thomas J. Schoenbaum, Admiralty
& Maritime Law § 5-17 (2005) (“[A]dmiralty cases deny
punitive damages in cases of imputed fault.”). The Supreme
Court first erected this bulwark in The Amiable Nancy, 16
U.S. 546, 558-59 (1818), explaining that a ship owner can’t
1
Judges Wardlaw, Tallman, and Ikuta were recused in this matter and
took no part in the voting.
6040 IN RE: THE EXXON VALDEZ
be subject to “exemplary damages” for the actions of its agent
if the owner is “innocent of the demerit of this transaction,
having neither directed it, nor countenanced it, nor partici-
pated in it in the slightest degree.”
Dutifully following The Amiable Nancy, we held in Pacific
Packing & Navigation Co. v. Fielding, 136 F. 577, 580 (9th
Cir. 1905), that punitive damages are unavailable against a
ship owner for the reckless conduct of the captain. We
abruptly changed course in Protectus Alpha Navigation Co. v.
North Pacific Grain Growers, Inc., 767 F.2d 1379 (9th Cir.
1985), and held that, under maritime law, punitive damages
are available against an owner for the actions of his agent who
“was employed in a managerial capacity and was acting in the
scope of employment.” Id. at 1386 (quoting Restatement
(Second) of Torts § 909).1
The conflict between Protectus Alpha and Pacific Packing
washed ashore in In re the Exxon Valdez (Valdez I), 270 F.3d
1215 (9th Cir. 2001).2 Following Protectus Alpha, and con-
signing The Amiable Nancy and Pacific Packing to the dust-
bin of history, the district court instructed the jury that Exxon
was responsible for the reckless acts of the captain if he was
1
While taking no account of The Amiable Nancy, Protectus Alpha
pointed to state cases imposing vicarious punitive liability based upon “the
reality of modern corporate America,” 767 F.2d at 1386, but nothing has
changed in the relationship between ship owner and captain that would
justify importing this innovation into maritime law, see Schoenbaum,
Admiralty & Maritime Law § 5-17 (“[S]tate tort law reforms do not affect
admiralty punitive damage awards.”). The captain has always borne the
responsibility for safeguarding his crew and third parties, and this hasn’t
changed in modern times. See, e.g., Boudoin v. J. Ray McDermott & Co.,
281 F.2d 81, 84-85 (5th Cir. 1960); Northern Queen Inc. v. Kinnear, 298
F.3d 1090, 1096 (9th Cir. 2002).
2
While this conflict didn’t come to the full court’s attention until
Exxon’s petition for rehearing after In re the Exxon Valdez (Valdez II),
472 F.3d 600 (9th Cir. 2006) (per curiam), we can consider en banc any
issue in Valdez I under Kyocera Corp. v. Prudential-Bache Trade Ser-
vices, Inc., 341 F.3d 987, 995-96 & n.13 (9th Cir. 2003) (en banc).
IN RE: THE EXXON VALDEZ 6041
“employed in a managerial capacity while acting in the scope
of [his] employment.” See Valdez I, 270 F.3d at 1233 (internal
quotations omitted). Once the jury found that the captain
acted recklessly, it was also required to find that Exxon acted
recklessly. On appeal, the panel recognized that Protectus
Alpha conflicts with Pacific Packing; at that point, it was
duty-bound to call this case en banc. See United States v.
Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per
curiam). Instead, it scuttled the en banc process and held that
Protectus Alpha’s imposition of punitive damages based on
vicarious liability is now the maritime rule in our circuit. See
Valdez I, 270 F.3d at 1235-36.3
This decision puts us at loggerheads with every other cir-
cuit that has considered this issue. In United States Steel
Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969), cert.
denied, 398 U.S. 958 (1970), the Sixth Circuit followed The
Amiable Nancy and Pacific Packing in holding that a ship
owner cannot be held liable for punitive damages “unless it
can be shown that the owner authorized or ratified the acts of
the master either before or after the accident . . . [or] the acts
complained of were those of an unfit master and the owner
was reckless in employing him.” Id. at 1148. The Fifth Circuit
followed the same course in In re P&E Boat Rentals, Inc.,
872 F.2d 642 (5th Cir. 1989). In rejecting Protectus Alpha, it
observed that admiralty courts, going back to The Amiable
Nancy, have held that punitive damages are unavailable based
3
In overruling Pacific Packing, the panel relied exclusively on Pacific
Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991). See Valdez I, 270
F.3d at 1235-36. The panel badly missed the mark. The Amiable Nancy
and Pacific Packing held that punitive damages, based on vicarious liabil-
ity, are not available under maritime law. By contrast, Haslip was a consti-
tutional decision, holding that state law could, consistent with due process,
impose punitive damages based on vicarious liability. No one disputes that
maritime law could constitutionally impose punitive damages under such
circumstances. The question is whether it does. For two centuries, every
court (except ours in Protectus Alpha) has held it doesn’t, and nothing the
Supreme Court said in Haslip could possibly have changed that.
6042 IN RE: THE EXXON VALDEZ
on vicarious liability. See id. at 652. Finally, in CEH, Inc. v.
F/V Seafarer, 70 F.3d 694, 705 (1st Cir. 1995), the First Cir-
cuit, while taking a somewhat broader view of what consti-
tutes a ship owner’s fault, endorsed the principle that “some
level of culpability” on the part of the ship owner is required
before punitive damages may be imposed under maritime law.
The panel’s decision is also contrary to the modern drift of
maritime law, which has reaffirmed its historical reluctance to
impose hedonic and punitive damages at all. See Guevara v.
Maritime Overseas Corp., 59 F.3d 1496, 1508 n.11 (5th Cir.
1995) (en banc). In Miles v. Apex Marine Corp., 498 U.S. 19,
31-33 (1990), a unanimous Supreme Court held that the fam-
ily of a seaman couldn’t recover nonpecuniary damages in a
wrongful death action brought under general maritime law.
Courts have read Miles as barring nonpecuniary damages,
including punitive damages, for wrongful death, personal
injury and other related actions brought on behalf of seamen,
see Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1502-
05 & n.14 (9th Cir. 1995); Guevara, 59 F.3d at 1503, 1506-
07, 1512, and some have interpreted Miles as applying to non-
seamen, see Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4
F.3d 1084, 1092 (2d Cir. 1993). While these cases involve the
intersection of federal statutes with maritime common law,
they confirm the Supreme Court’s observation in Executive
Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 270 (1972), that
the “long experience [of] the law of the sea . . . is concerned
with . . . limitation of liability.” It makes no sense to hold that
families of those who are killed and maimed at sea can’t get
punitive awards, or even damages for pain and suffering or
loss of consortium, and yet reverse centuries of maritime law
to make it easier for businessmen to recover billions in puni-
tive damages for harm to their commercial interests.
The panel’s decision exposes owners of every vessel and
port facility within our maritime jurisdiction—a staggeringly
huge area—to punitive damages solely for the actions of man-
agerial employees. Because of the harsh nature of vicarious
IN RE: THE EXXON VALDEZ 6043
liability, ship owners won’t be able to protect themselves
against our newfangled interpretation of maritime law through
careful hiring practices. Accidents at sea happen—ships sink,
collide and run aground—often because of serious mistakes
by captain and crew, many of which could, with the benefit
of hindsight, be found to have been reckless. For centuries,
companies have built their seaborne businesses on the under-
standing that they won’t be subject to punitive damages if
they “[n]either directed it, nor countenanced it, nor partici-
pated in” the wrong, The Amiable Nancy, 16 U.S. at 559; the
panel opinion has thrown this protection overboard.
This case demonstrates the pernicious impact of departing
from the traditional protections of maritime law. The plain-
tiffs here suffered no physical injuries—their only claim was
that the oil spill harmed their commercial fishing interests.
See Valdez I, 270 F.3d at 1221. After the accident, Exxon
acted as a model corporation—it spent over $2 billion to
remove oil from the water and adjacent shore and $900 mil-
lion to restore damaged natural resources. Id. at 1223. Fur-
thermore, before the jury ever entered a verdict, Exxon
compensated the plaintiffs for most of their damages. See
Valdez II, 472 F.3d at 611-12. Yet the jury, perhaps subscrib-
ing to the maxim that a rising tide lifts all boats, took advan-
tage of the vicarious liability instruction to award billions in
punitive damages as a windfall to their fellow Alaskans.
As Exxon learned, a company can voluntarily compensate
harmed parties, take every step imaginable to undo the tragic
mess its agents created, and still be subject to the largest puni-
tive award ever upheld by a federal court—all because it had
the misfortune of hiring a captain who committed a reckless
act. Moreover, the effects of this opinion are not limited to
shippers and docks based in the Ninth Circuit: The shipping
business knows no circuit, or even national, boundaries. Ship-
pers everywhere will be put on notice: If your vessels sail into
the vast waters of the Ninth Circuit, a jury can shipwreck your
operations through punitive damages and the fact that you did
6044 IN RE: THE EXXON VALDEZ
nothing wrong won’t save you. Such major turbulence in the
seascape of the law ought to come, if at all, from the Supreme
Court.
Because my colleagues don’t seem to share my concern
that we have undermined the uniformity of maritime law and
contravened long-settled Supreme Court precedent, as well as
the unanimous view of our sister circuits, I dissent.
BEA, Circuit Judge, dissenting from the order denying the
petition for rehearing en banc:
I agree with Judge Kozinski that punitive damages should
not have been awarded in this case. However, even if punitive
damages were appropriate, I note that the ratio of punitive
damages to compensatory damages is excessive. The Supreme
Court has instructed that “[p]erhaps the most important indi-
cium of the reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant’s conduct.” BMW
of North America v. Gore, 517 U.S. 559, 575 (1996). As the
panel itself noted, the reprehensibility of Exxon’s conduct
here is “at most, a mid range.” In re the Exxon Valdez (Valdez
II), 472 F.3d 600, 618 (9th Cir. 2006) (per curiam). Impor-
tantly, the panel correctly concluded that “Exxon’s conduct
caused no actual physical harm to people,” although it did
cause “more than mere economic harm to them, because the
economic effects of its misconduct produced severe emotional
harm as well.” Id. at 614.
Of course, the plaintiffs in State Farm Mutual Automobile
Ins. Co. v. Campbell, 538 U.S. 408 (2003), had economic and
emotional harm also. In that case, the Campbells brought a
claim against State Farm for bad faith failure to settle within
policy limits, fraud, and intentional infliction of emotional
distress. The emotional distress the Campbells suffered was
not limited to that caused by their business losses, as the
IN RE: THE EXXON VALDEZ 6045
Exxon Valdez plaintiffs suffered. The Campbells were faced
with a large potential judgment beyond insurance limits
coverage—which the insurance company gaily told them
would probably cost them their house. As in Valdez II, State
Farm liquidated all economic damage by paying the third-
party judgment before the Campbells filed their complaint.
Nonetheless, the court awarded $1 million in compensatory
damages and $25 million in punitive damages. The Supreme
Court reversed the judgment and held that a 25 to 1 ratio of
punitive to compensatory damages was constitutionally
invalid as excessive. Instead, even considering the economic
and emotional harm, in remanding, the Supreme Court stated
“a punitive damages award at or near the amount of compen-
satory damages” would be appropriate. Id. at 425.
Although the Supreme Court has declined to set a bright-
line ratio for punitive damages awards, “in practice, few
awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy
due process.” Id. Moreover, “[w]hen compensatory damages
are substantial, then a lesser ratio, perhaps only equal to com-
pensatory damages, can reach the outermost limit of the due
process guarantee.” Id. (emphasis added). The Supreme Court
characterized the Campbells’s $1 million compensatory dam-
ages award as “substantial.” Id. at 426. Surely, then, the $513
million in compensatory damages here is also “substantial”
damages. Hence, the 5:1 ratio adopted by the majority seems
to violate the limits implied by the Court for a case where the
reprehensibility of the conduct of the defendant does not
include infliction of physical injury, nor an assessment for
environmental damage. Accordingly, I respectfully dissent
from denial of rehearing en banc.
6046 IN RE: THE EXXON VALDEZ
OPINION
PER CURIAM:
I. INTRODUCTION
We look for the third time at the punitive damages imposed
in this litigation as a result of the 1989 grounding of the oil
tanker Exxon Valdez, and the resulting economic harm to
many who earned their livelihood from the resources of that
area. See Baker v. Hazelwood (In re the Exxon Valdez), 270
F.3d 1215 (9th Cir. 2001) [hereinafter Punitive Damages
Opinion I]; Sea Hawk Seafoods, Inc. v. Exxon Corp., No. 03-
35166 (9th Cir., Aug. 18, 2003). We are precluded, as the jury
was, from punishing Exxon for befouling the beautiful region
where the oil was spilled, because that punishment has
already been imposed in separate litigation that has been set-
tled. See Punitive Damages Opinion I, 270 F.3d at 1242. As
we explained in Punitive Damages Opinion I, the plaintiffs’
punitive damages case was saved from preemption and res
judicata because the award “vindicates only private economic
and quasi-economic interests, not the public interest in pun-
ishing harm to the environment. Id. “The plaintiffs’ claims for
punitive damages expressly excluded consideration of harm to
the environment.” In re the Exxon Valdez, 296 F.Supp.2d
1071, 1090 (D. Alaska 2004).
The resolution of punitive damages has been delayed
because the course of this litigation has paralleled the course
followed by the Supreme Court when, in 1991, it embarked
on a series of decisions outlining the relationship of punitive
damages to the principles of due process embodied in our
Constitution. See, e.g., Pac. Mut. Life Ins. Co. v. Haslip, 499
U.S. 1 (1991); TXO Prod. Corp. v. Alliance Res. Corp., 509
U.S. 443 (1993) (plurality); BMW of N. Am., Inc. v. Gore, 517
U.S. 559 (1996); State Farm Mut. Auto Ins. Co. v. Campbell,
538 U.S. 408 (2003). Intervening Supreme Court decisions
have caused us to remand the matter twice to the district court
IN RE: THE EXXON VALDEZ 6047
for reconsideration of punitives in light of evolving Supreme
Court law. The district court’s opinion, after our last remand
for it to consider the impact of the Supreme Court’s decision
in State Farm, is published at In re the Exxon Valdez, 296 F.
Supp.2d 1071 (D. Alaska 2004) [hereinafter District Court
Opinion]. It is the subject of this appeal.
Now, with the guidance of the Supreme Court’s decisions,
the district judge’s thoughtful consideration of the issues, and
our own prior decisions in the litigation, we trust we are able
to bring this phase of the litigation to an end. While we agree
with much of the analysis of the district court, we are required
to review de novo the district court’s legal analysis in apply-
ing the Supreme Court’s guideposts. See Cooper Indus., Inc.
v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001).
While the original punitive damages award was $5 billion
and in accord with the jury’s verdict, the district court reduced
it to $4 billion after our first remand. In re the Exxon Valdez,
236 F. Supp. 2d 1043, 1068 (D. Alaska 2002), vacated by Sea
Hawk, No. 03-35166. Then, after our second remand, it
entered an award of $4.5 billion. District Court Opinion, 296
F. Supp. 2d at 1110. For the reasons outlined further in the
factual development and the analysis of this opinion, we con-
clude that the ratio of punitive damages to actual economic
harm resulting from the spill, reflected in the district court’s
award of $4.5 billion, exceeds by a material factor a ratio that
would be appropriate under Punitive Damages Opinion I and
the current controlling Supreme Court analysis. See State
Farm, 538 U.S. at 425. We order a remittitur of $2 billion,
resulting in punitive damages of $2.5 billion. We do so
because, in assessing the reprehensibility of Exxon’s miscon-
duct, the most important guidepost according to the Supreme
Court’s opinion in State Farm, there are several mitigating
facts. See id. at 419. These include prompt action taken by
Exxon both to clean up the oil and to compensate the plain-
tiffs for economic losses. These mollify, at least to some
material degree, the reprehensibility in economic terms of
6048 IN RE: THE EXXON VALDEZ
Exxon’s original misconduct. Punitive Damages Opinion I,
270 F.3d at 1242. In addition, in considering the relationship
between the size of the award and the amount of harm, we
concluded in our earlier punitive damages opinion that the
substantial costs that Exxon had already borne in clean up and
loss of cargo lessen the need for deterrence in the future. Id.
at 1244. We disagree, however, with Exxon’s ultimate con-
tention that, as a result of two sentences in Punitive Damages
Opinion I, written five years ago and before the Supreme
Court’s opinion in State Farm, Exxon is entitled to have puni-
tive damages assessed at no higher than $25 million. See id.
Our dissenting colleague goes to the other extreme.
Exxon’s misconduct was placing a relapsed alcoholic in
charge of a supertanker. Punitive Damages Opinion I, 270
F.3d at 1234. Yet, the dissent claims that we should ignore
our unanimous conclusion in Punitive Damages Opinion I,
270 F.3d at 1242, that Exxon’s conduct with respect to the
spill was not intentional. The dissent effectively treats Exxon
as though it calculatingly and maliciously steered the ship into
disaster. Purporting to rely on the intervening Supreme Court
decision in State Farm, the dissent also refuses to apply our
earlier holding that Exxon’s mitigation efforts reduce the rep-
rehensibility of its conduct. This amounts to a rejection of the
bedrock principle of stare decisis.
State Farm was an insurance contract case. Nothing in it
suggests that this court’s decision in Punitive Damages Opin-
ion I was improper. The Supreme Court did not explicitly or
implicitly hold that mitigation plays no role in determining
the constitutionality of a punitive damages award. Such a lack
of discussion in an insurance contract case cannot supplant
our express holding in the toxic-tort arena that mitigation
efforts are a factor in assessing the punitive damages award
in this case. Controlling authority should not be ignored or
distorted. As Learned Hand famously once said, “a victory
gained by sweeping the chess pieces off the table is not endur-
IN RE: THE EXXON VALDEZ 6049
ing.” Learned Hand, Mr. Justice Cardozo, 52 HARV. L. REV.
361, 362 (1939).
We reiterate our previous holding that Exxon’s conduct
was not willful. Accordingly, a punitive damages award that
corresponds with the highest degree of reprehensibility does
not comport with due process when Exxon’s conduct falls
squarely in the middle of a fault continuum.
Because the history of this litigation tracks the recent juris-
prudential history of punitive damages, our analysis is best
made in light of a thorough understanding of that history. We
therefore outline that history with what we hope is sufficient
clarity and thoroughness.
II. LEGAL AND FACTUAL BACKGROUND
A. From the Time of the Accident through the First
Punitive Damages Award and Denial of Motion for New
Trial: The Common Law through the Supreme Court
Decision in TXO.
The Exxon Valdez ran aground on Bligh Reef in Alaska’s
Prince William Sound on March 24, 1989. Punitive damages
at that time were governed by general common law principles.
At common law, the jury determined the punitives, and the
trial judge conducted a limited review to determine whether
the jury’s verdict was the product of passion and prejudice, or
whether the award was one that shocked the conscience. See
Renee B. Lettow, New Trial for Verdict Against Law: Judge-
Jury Relations in Early Nineteenth Century America, 71
Notre Dame L. Rev. 505, 542-51 (1996); Paul DeCamp,
Beyond State Farm: Due Process Constraints on Noneco-
nomic Compensatory Damages, 27 Harv. J.L. & Pub. Pol’y
231, 246-48 (2003); see also Browning-Ferris Indus. of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 n.24 (1989)
(affirming district court’s application of Vermont’s “grossly
and manifestly excessive” standard for judicial review);
6050 IN RE: THE EXXON VALDEZ
Honda Motor Co. v. Oberg, 512 U.S. 415, 432 n.10 (1994).
Although there were cases dating from the Lochner era that
had suggested that there may be a due process ceiling on
punitive damages, at the time of this accident in 1989, the
Supreme Court had never invalidated an award on grounds
that the size of the award violated due process. See BMW v.
Gore, 517 U.S. at 600-01 (Scalia, J., dissenting) (discussing
the history of due process review of punitive damages
awards) (citing Seabord Air Line R. Co. v. Seegers, 207 U.S.
73, 78 (1907); Southwestern Tel. & Tel. Co. v. Danaher, 238
U.S. 482, 489-91 (1915); Waters-Pierce Oil Co. v. Texas, 212
U.S. 86, 111-12 (1909); Standard Oil Co. of Ind. v. Missouri,
224 U.S. 270, 286, 290 (1912); St. Louis, I.M. & S.R. Co. v.
Williams, 251 U.S. 63, 66-67 (1919)).
In 1991, however, the Supreme Court decided Pacific
Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1993).
There, for the first time in the modern era, the Court con-
ducted a substantive review of an award of punitive damages.
Haslip was an insurance fraud case, in which the agent pock-
eted the premiums and caused the plaintiff’s insurance to
lapse. Id. at 4-5. The Court upheld a punitive damages award
that amounted to four times the award of compensatory dam-
ages and 200 times the out-of-pocket costs of the defrauded
insured. Id. at 23-24. The Court noted that the ratios might be
“close to the line,” but said the award had to be upheld
because it “did not lack objective criteria.” Id. The Court
therefore concluded that the punitive damages did not “cross
the line into the area of constitutional impropriety.” Id. The
Supreme Court did not, at that time, and has not since, defined
any bright line of constitutional impropriety. It has, repeat-
edly, indicated that there is none. See, e.g., State Farm, 538
U.S. at 424-25.
In 1993, two years after Haslip, the Court took on another
major punitive damages case. In TXO Production Corp. v.
Alliance Resources Corp., 509 U.S. 443 (1993), the Court
reviewed a jury award of $19,000 in compensatory damages
IN RE: THE EXXON VALDEZ 6051
and $10 million in punitive damages. Id. at 451. That case
arose out of an oil and gas development fraud scheme. Id. at
447-51. The case produced no majority opinion. The plurality,
reiterating that due process places some limit on punitive
damages, said that the award was not so “grossly excessive”
that it should be overturned, thus invoking the standard used
in Haslip. Id. at 462. The Court declined to provide any par-
ticular guidance in determining when an award would be
“grossly excessive.” Id. The plurality chose instead to say that
the dramatic disparity between the actual financial loss and
the punitive award was not controlling. Id. The award was
upheld. Id.
It was against this background that the jury in this case was
instructed in 1994. The jury was told to take into account the
reprehensibility of the misconduct, the amount of actual or
potential harm arising from the misconduct, and, additionally,
to take into account mitigating factors such as the clean up
costs and fines already imposed as deterrents. District Court
Opinion, 296 F. Supp. 2d at 1081-82. The instructions were
the product of mutual effort of the parties and the district
court, and have not been seriously challenged. Id. They are
not questioned here and were, in retrospect, quite forward
looking.
On September 16, 1994, the jury returned a $5 billion puni-
tive damages verdict, having some time earlier imposed a
compensatory award of $287 million. The district court
accepted the punitive award and entered judgment. Citing
Haslip and TXO, the district court denied Exxon’s motion for
a new trial in January of 1995.
B. The Appeal of the Damage Allocation Plan and Our
Decisions in Baker and Icicle.
Prior to trial, several plaintiffs, many of the sea food pro-
cessors, had entered into settlement agreements with Exxon.
Icicle Seafoods, Inc. v. Baker (In re the Exxon Valdez), 229
6052 IN RE: THE EXXON VALDEZ
F.3d 790, 792 (9th Cir. 2000) [hereinafter Icicle]; Baker v.
Exxon Corp. (In re the Exxon Valdez), 239 F.3d 985, 986 (9th
Cir. 2001) [hereinafter Baker]. The agreements anticipated a
sizable punitive damages award. See Icicle, 229 F.3d at 793;
Baker, 239 F.3d at 986-87. In return for receiving substantial
millions in payments from Exxon, the settling plaintiffs, in
two separate agreements, agreed to allocate a portion of their
punitive award to Exxon. One agreement was a so called
“cede back agreement,” Icicle, 229 F.3d at 793, and the other
was an assignment of the future award, Baker, 239 F.3d at
986-87.
The district court, however, did not know of the agreements
during trial. Icicle, 229 F.3d at 793. When the court did learn
of them, during consideration of the parties’ proposed damage
allocation plan, and after the punitives had been imposed in
accordance with the jury’s verdict, the district court frowned
on the settlements. Id. at 794. In the district court’s view,
Exxon should have told the jury about the agreements so that
the jury would have known how much Exxon was actually
going to have to pay in punitive damages. Id. The district
court, therefore, refused to permit the settling plaintiffs to
receive any of the punitive damages award, on the theory that
Exxon should not benefit from the settlements. Id.; Baker, 239
F.3d at 987. Exxon pursued two appeals from the district
court’s refusal to enforce the agreements: one involving the
cede back agreement, Icicle, 229 F.3d at 793, and the other
involving the assignment agreement, Baker, 239 F.3d at 987-
88.
The two different forms of agreement were intended to
have essentially the same effect: allowing Exxon to keep
some portion of the eventual punitive award in exchange for
settling compensatory damage claims. In Icicle, this panel
considered the cede back agreement. In a thorough opinion,
we held that the cede back agreement was valid and enforce-
able and that the jury quite properly was not told of its exis-
tence. Icicle, 229 F.3d at 800. We reasoned that had the jury
IN RE: THE EXXON VALDEZ 6053
been told of the agreement, it might well have compensated
for the settlement by imposing more damages. Id. at 798.
This, in turn, would have frustrated the efforts of parties to
reach settlements. We pointed out that settlements should be
encouraged, particularly in large class actions like this one. Id.
“Far from being unethical, cede back agreements make it eas-
ier to administer mandatory class actions for the assessment
of punitive damages and encourage settlement in mass tort
cases. As a result, such agreements should typically be
enforced.” Id.
The second appeal, Baker, considered an assignment agree-
ment. Baker, 239 F.3d at 987-88. Following the Icicle reason-
ing, this panel reached the same conclusion. Id. at 988.
C. The Supreme Court’s Decision in BMW v. Gore.
As the parties were beginning their preparation for the first
appeal of the $5 billion punitive damages award, the Supreme
Court issued its first major due process/punitive damages
decision after TXO. In 1996, it decided BMW of North Amer-
ica, Inc. v. Gore, 517 U.S. 559 (1996). This was the Supreme
Court’s first attempt to describe specific factors that a court
should consider in reviewing a jury’s award of punitive dam-
ages. See id. at 575. The Court invoked the traditional con-
cepts of due process to describe the purpose of the review as
an assurance of fair notice to the defendant of the conse-
quences of its conduct. Id. at 574.
The Court described three factors to be considered. Id. at
575. The first was the reprehensibility of the conduct. Id. The
Court explained that reprehensibility is “[p]erhaps the most
important indicium of the reasonableness of a punitive dam-
ages award,” and said that an award should reflect “the enor-
mity” of the offense. Id. (citations omitted).
The second factor was the disparity between the actual or
potential harm to the plaintiffs flowing from that conduct, and
6054 IN RE: THE EXXON VALDEZ
the punitive damages assessed by the jury. The Court said that
the disparity factor was the most commonly cited. Id. at 580.
The Court reasoned this factor is important because it “has a
long pedigree” extending back to English statutes from 1275
to 1753 providing for double, treble or quadruple damages. Id.
at 580-81. Thus the critical measure here is the ratio between
the punitive award and the amount of harm inflicted on the
plaintiff, or plaintiffs, before the court.
The third factor was the difference between the punitives
and the civil and criminal penalties authorized by the state for
that conduct. Id. at 583. The Court indicated that reviewing
courts should use this factor to “accord substantial deference
to legislative judgments concerning appropriate sanctions for
the conduct at issue.” Id. at 583 (internal quotations omitted).
In BMW v. Gore, the defendant had engaged in a practice
of repainting damaged cars and passing them off as never-
damaged cars with their original paint. Id. at 563-64. The
plaintiff who had purchased one of these cars was awarded
$4,000 in compensatory damages and $4 million in punitives.
Id. at 565. The Alabama Supreme Court reduced the punitives
to $2 million, and the defendant petitioned for certiorari
review. Id. at 567. The Supreme Court held the punitives were
excessive. Id. at 585.
In examining the reprehensibility of the conduct, the
Supreme Court in BMW v. Gore stressed that the only harm
inflicted by the defendant was economic and not physical. Id.
at 576. The Court also emphasized that the conduct to be con-
sidered was only the conduct of the defendant towards the
plaintiff in the Alabama case and not other conduct that might
be a part of a nationwide practice. Id. at 572. Justice Breyer’s
concurring opinion noted the danger in subjecting a defendant
to punishment multiple times for the same conduct. Id. at 593
(Breyer, J., concurring).
Thus, in looking at the ratio between the punitives and the
harm, and in stressing that the ratio must be a reasonable one,
IN RE: THE EXXON VALDEZ 6055
the Court was holding that the ratio must be measured by the
ratio of punitive damages to the harm suffered by the plaintiff
in that case, without regard to harm that might have been
experienced by others and for which the defendant might also
be responsible. Id. at 580. It concluded that a ratio of 500 to
1 was grossly excessive. Id. at 583. Such an excessive ratio
resulted from the jury’s improperly measuring the punitives in
relation to the damage inflicted on a nation of potential plain-
tiffs rather than the damage to the plaintiff before that jury. Id.
at 573.
With respect to the third factor, the relationship between
the punitive damages and the comparable penalties under state
law, BMW v. Gore looked to the Court’s federalism jurispru-
dence. The Court’s opinion stressed that reviewing courts
should be mindful of the need to pay due deference to the leg-
islative judgments of states in assessing the reprehensibility of
conduct. Id. at 583 (“[A] reviewing court engaged in deter-
mining whether an award of punitive damages is excessive
should ‘accord ‘substantial deference’ to legislative judg-
ments concerning appropriate sanctions for the conduct at
issue.’ ”) (quoting Browning-Ferris, 492 U.S. at 301
(O’Connor, J., concurring in part, dissenting in part)).
Again refusing to draw any kind of mathematical bright
line between acceptable and unacceptable ratios, the Court
described the 500 to 1 ratio in BMW v. Gore as “breathtak-
ing.” Id. It remanded for further, not inconsistent, proceed-
ings, because, unlike Haslip, where the Court affirmed a
questionable award, the Court in BMW was “fully convinced”
that this award was “grossly excessive.” Id. at 585-86.
D. The First Punitive Damages Appeal.
It was against this background that briefing in the first
appeal of the original $5 billion punitive damages award in
this case went forward. Exxon contended the amount of the
award violated due process principles, as described in BMW
6056 IN RE: THE EXXON VALDEZ
v. Gore. Punitive Damages Opinion I, 270 F.3d at 1241. The
district court had not had an opportunity to review BMW v.
Gore before its original judgment became final and appeal-
able upon denial of Exxon’s motion for a new trial. Id.
In its appeal from the $5 billion award, Exxon, in addition
to challenging the amount of the punitive damages, chal-
lenged the sufficiency of the evidence supporting punitive
damages; the jury instructions; the allowability of any puni-
tive damages as a matter of public policy, maritime law and
res judicata; and the preemption of punitive damages by other
federal law. Needless to say, briefing was extensive. After
appellate proceedings were stayed from January 1998 to Sep-
tember 1998 for the parties to pursue a limited remand, this
panel heard argument in May of 1999.
While the case was under submission, the Supreme Court
granted certiorari in another Ninth Circuit case, and in May
2001, decided Cooper v. Leatherman Tool Group. The Court
there held our review of punitive damages was to be de novo.
Cooper, 532 U.S. at 436. This did not ease our task.
E. Punitive Damages Opinion I.
We issued our first opinion on punitives damages in
November, 2001. Our opinion went in detail through the facts
of the disaster and the conduct of Exxon, and of Captain
Hazelwood, because they bore so heavily on the consideration
of the issues on appeal. Punitive Damages Opinion I, 270
F.3d at 1221-24. In an opinion of more than 40 pages, we
rejected Captain Hazelwood’s separate appeal, and dealt at
some length with all of the issues raised by Exxon. We ulti-
mately rejected all of them except the challenge to the amount
of punitive damages. Id. at 1254.
Referring to the “unique body of law” that governs punitive
damages, we focused on the two Supreme Court opinions that
had been decided after the district court’s decision in the case,
IN RE: THE EXXON VALDEZ 6057
and we termed them “critical.” Id. at 1239. These were BMW
v. Gore and Cooper v. Leatherman Tool Group. We said:
In BMW, the Supreme Court held that a punitive
damage award violated the Due Process Clause of
the Fourteenth Amendment because it was so grossly
excessive that the defendant lacked fair notice that it
would be imposed. Dr. Gore’s car was damaged in
transit, and BMW repainted it but did not tell Dr.
Gore about the repainting when it sold him the car.
The jury found that to be fraudulent, and awarded
$4,000 in compensatory damages for reduced value
of the car and $4 million in punitive damages. The
Alabama Supreme Court cut the award to $2 million,
but the Court held that it was still so high as to deny
BMW due process of law for lack of notice, because
the award exceeded the amounts justified under the
three “guideposts.” The BMW guideposts are: (1) the
degree of reprehensibility of the person’s conduct;
(2) the disparity between the harm or potential harm
suffered by the victim and his punitive damage
award; and (3) the difference between the punitive
damage award and the civil penalties authorized or
imposed in comparable cases. We apply these three
guideposts to evaluate whether a defendant lacked
fair notice of the severity of a punitive damages
award, and to stabilize the law by assuring the uni-
form treatment of similarly situated persons.
Id. at 1240-41 (internal quotations omitted). We noted that in
Cooper v. Leatherman Tool Group the Supreme Court
decided that “considerations of institutional competence”
require de novo review of punitive damages awards. Id. at
1240 (quoting Cooper, 532 U.S. at 440).
We went on to observe that the district court had not
reviewed the award under the standards announced in those
cases because neither case had been decided by the time the
6058 IN RE: THE EXXON VALDEZ
jury returned its verdict, and Exxon had never challenged the
amount of the award on constitutional grounds until after the
jury’s verdict. Id. at 1241. In view of the need for de novo
review and the intervening decisions of BMW v. Gore and
Cooper v. Leatherman Tool Group, we remanded for recon-
sideration of punitive damages. Id. We also provided some
observations on possible alternative analyses of punitive dam-
ages under the BMW v. Gore factors. Id. at 1241-46.
These observations began with the factor of reprehensibil-
ity, quoting the Supreme Court’s admonition in BMW v. Gore
that it is “[p]erhaps the most important indicum of the reason-
ableness of a punitive damage award.” Id. at 1241. We
pointed to the Court’s analogy to criminal cases, and its state-
ment that nonviolent crimes are less reprehensible than vio-
lent ones. Id. We drew an analogy to the facts of this case,
where Exxon’s conduct was reckless, but there was no inten-
tional spilling of oil “as in a midnight dumping case.” Id. at
1242. We agreed with the plaintiffs that Exxon’s conduct was
reprehensible in that it knew of the risk of an oil spill in trans-
porting huge quantities of oil through the Sound, and it knew
Hazelwood was a relapsed alcoholic. Id. at 1242. We
observed, however, that such reprehensibility went more to
justify punitive damages than to justify such a high amount.
Id. We noted some mitigating factors, including prompt ame-
liorative action and the millions spent in clean up. Id.
We then turned to the ratio of actual harm caused by the
misconduct to punitive damages awarded. Id. at 1243. Again
analyzing BMW v. Gore, we said that it was difficult to deter-
mine what we called the “numerator,” that is, the value of the
harm caused by the spill. Id. We used the jury award of $287
million in compensatory damages as one possible numerator
and also, as alternative numerators, the district court’s esti-
mates of harm, which at that time ranged from $290 million
to $418 million. Id. We noted that if compensatory liability
were used, any amounts Exxon had voluntarily paid in settle-
ments should not be taken into account. We said that
IN RE: THE EXXON VALDEZ 6059
[t]he amount that a defendant voluntarily pays before
judgment should generally not be used as part of the
numerator, because that would deter settlements
prior to judgment. “[T]he general policy of federal
courts to promote settlement before trial is even
stronger in the context of large scale class actions.”
Id. at 1244 (citing Icicle, 229 F.3d at 795; Baker, 239 F.3d at
988).
As a final observation on the relationship between the puni-
tive damages award and the harm, we pointed out that the
substantial clean up costs and other losses to Exxon from the
oil spill had already had considerable deterrent effect. We
indicated such deterrence should, depending on the circum-
stances, call for a lower, rather than a higher ratio. Id.
Turning to the third BMW v. Gore factor, we observed that
the nature of criminal fines, which are potential state and fed-
eral penalties, might be useful in reviewing punitives. Id. at
1245. We observed that “[c]riminal fines are particularly
informative because punitive damages are quasi-criminal.” Id.
We then looked to the general federal statutory measure for
fines and discussed a number of alternative guideposts. Id.
We noted the federal fines could range from $200,000 to
$1.03 billion. Id. We looked as well at the ceiling of civil lia-
bility under the Trans-Alaska Pipeline Act and noted it was
$100 million in strict liability for anyone who spills oil from
the pipeline. Id.
In addition to those possible penalties, we looked at the
actual penal evaluation made in the case by the Attorneys
General of the United States and of the state of Alaska. Id. at
1245-46. Agreeing with the district court that they did not
establish a limit, we noted that they did represent an adver-
sarial judgment, by executive officers, of an appropriate level
of punishment. Id. at 1246. Finally, without necessarily
exhausting available analogies in the penalty field, we noted
6060 IN RE: THE EXXON VALDEZ
that Congress had subsequently amended the statute to
increase the amount of civil penalties for grossly negligent
conduct, and that the maximum penalty here under the new
federal statue would be a maximum of $786 million. Id. The
federal penalties are based upon the number of barrels of oil
spilled. 33 U.S.C. § 1321(b)(7).
In suggesting various possible guidelines to assess whether
the $5 billion was “grossly excessive” we did not imply that
any single guidepost would be controlling. Concluding that
the $5 billion was too high to withstand the review we were
required to give it under BMW v. Gore and Cooper v. Lea-
therman Tool Group, and noting that those cases came down
after the district court had ruled, we remanded for it to apply
the due process analysis required under those decisions, with
what we hoped would be helpful guidance from our opinion.
Id. at 1241. No district court analysis of BMW v. Gore was
before us and we thus could not have decided any specific
issue arising from any such analysis arising from its guide-
posts. Id. We offered only guidance culled from what was
then controlling Supreme Court precedent and general princi-
ples applicable to the calculation of damage liability. Id.
F. The District Court Opinion on our First Remand.
The district court again did an extensive analysis of the rel-
ative reprehensibility of Exxon’s misconduct and of the harm
it caused. In re the Exxon Valdez, 236 F. Supp. 2d at 1054-60.
Though noting that an accurate assessment of the full extent
of the plaintiffs’ actual harm was impossible, the district court
attempted to reconstruct that harm by adding together the
jury’s compensatory damages verdict of $287 million, judg-
ments in related cases, as well as payments and settlements
made to plaintiffs before and during the punitive damages liti-
gation. Id. at 1058-60. The district court concluded that the
actual harm was just over $500 million. Id. at 1060. The dis-
trict court also concluded that the circumstances of this case
justified a ratio of punitive damages to harm of 10 to 1. Id. at
IN RE: THE EXXON VALDEZ 6061
1065. This calculation would have supported the original $5
billion award. Id. The district court nevertheless reduced the
punitive damages to $4 billion, to conform to what it viewed
as our mandate. Id. at 1068.
G. The Second Appeal, the Supreme Court’s Opinion in
State Farm, and our Second Remand.
Not surprisingly, Exxon appealed again. And, not surpris-
ingly, the Supreme Court issued an opinion in still another
punitive damages case while the appeal was pending. State
Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003).
The plaintiffs in State Farm, the Campbells, were involved
in a head-on collision and sued their automobile insurer, State
Farm, for bad faith. Id. at 413. The claim was based on State
Farm’s rejection of an offer to settle the Campbells’ claims at
the policy limit, State Farm’s assurances to them that they had
no liability for the accident, State Farm’s resulting decision to
take the case to court despite the substantial likelihood of an
excess judgment, and its subsequent refusal to pay an adverse
judgment over three times the policy limits. Id. at 413-14. The
case was similar to BMW v. Gore in that there were only two
plaintiffs before the jury. Id. Nevertheless, as in BMW v.
Gore, the jury was allowed to consider the effects of similar
but unrelated misconduct on many potential plaintiffs who
were not before the court. Id. at 415. Final judgment after
appeal to the Utah Supreme Court was for $1 million in com-
pensatory and $145 million in punitive damages. Id. at 412.
The United States Supreme Court remanded for the Utah
courts to reduce the award. Id. at 429.
The Supreme Court in State Farm once again emphasized
that the “most important indicium” of a punitive damages
award’s reasonableness is the relative reprehensibility of the
defendant’s conduct. Id. at 419; see also BMW v. Gore, 517
U.S. at 575. Yet State Farm significantly refined the repre-
hensibility analysis by instructing courts to weigh five spe-
6062 IN RE: THE EXXON VALDEZ
cific considerations: (1) whether the harm caused was
physical as opposed to economic; (2) whether the conduct
causing the plaintiff’s harm showed “indifference to or a reck-
less disregard of the health or safety of others;” (3) whether
the “target of the conduct” was financially vulnerable; (4)
whether the defendant’s conduct involved repeated actions as
opposed to an isolated incident; and (5) whether the harm
caused was the result of “intentional malice, trickery, or
deceit, or mere accident.” 538 U.S. at 419. The Court did not
rank these factors. It did explain, however, that only one fac-
tor weighing in a plaintiff’s favor may not be sufficient to
support a punitive damages award, and the absence of all fac-
tors makes any such award “suspect.” Id.
As to BMW v. Gore’s second guidepost, the ratio between
harm or potential harm to the plaintiff and the punitive dam-
ages award, the Court “decline[d] again to impose a bright-
line ratio which a punitive damages award cannot exceed.” Id.
at 425. But it provided some sharper guidance than it had in
previous cases.
First, it indicated that ratios in excess of single-digits would
raise serious constitutional questions, and that single-digit
ratios were “more likely to comport with due process.” Id. In
fact, despite the Court’s disclaimer that “there are no rigid
benchmarks that a punitive damages award may not surpass,”
the Court strongly indicated the proportion of punitive dam-
ages to harm could generally not exceed a ratio of 9 to 1. Id.
at 425 (“[F]ew awards exceeding a single-digit ratio between
punitive and compensatory damages, to a significant degree,
will satisfy due process.”).
Second, the Court discussed particular combinations of fac-
tors that would justify relatively higher or lower ratios. For
example, where a “particularly egregious act has resulted in
only a small amount of economic damages” or where “the
injury is hard to detect or the monetary value of the noneco-
nomic harm might have been difficult to determine,” ratios in
IN RE: THE EXXON VALDEZ 6063
the high single-digits and perhaps even higher might be war-
ranted. Id. (quoting BMW v. Gore, 517 U.S. at 582). Con-
versely, “[w]hen compensatory damages are substantial, then
a lesser ratio, perhaps only equal to compensatory damages,
can reach the outermost limit of the due process guarantee.”
Id.
Finally, the Court minimized the relevance of criminal pen-
alties as a guide, saying that they were not particularly helpful
in determining fair notice. Id. at 428. Indeed, the Court did
not analyze State Farm’s potential criminal penalty at all,
characterizing it as a “remote possibility.” Id. As to civil pen-
alties, the Court noted only that the $145 million punitive
damages award “dwarfed” the $10,000 maximum applicable
fine. Id.
The Supreme Court’s opinion in State Farm was filed in
2003, after the district court, on our first remand, had already
reviewed the punitive damages award. Because the district
court performed its review without the benefit of the more
focused guidance provided by the Court in State Farm, we
remanded the second appeal summarily for the district court
to reconsider the punitive damages award in light of State
Farm. Sea Hawk, No. 03-39166.
H. The District Court Opinion on our Third Remand and
this Appeal.
On remand for the third time, the district court, in an
assessment similar to that in its opinion after our first remand,
calculated plaintiffs’ harm at $513.1 million. District Court
Opinion, 296 F. Supp. 2d at 1103. Interpreting State Farm as
holding that “single-digit multipliers pass constitutional mus-
ter for highly reprehensible conduct,” and citing our decision
in Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020 (9th
Cir. 2003), the district court decided to increase punitives
from $4 billion to $4.5 billion. 296 F. Supp. 2d at 1110. The
6064 IN RE: THE EXXON VALDEZ
final punitive damages award represented a ratio of just under
9 to 1. Id.
Once again, Exxon appealed. The plaintiffs also appealed,
seeking to reinstate the jury’s full $5 billion punitive damages
verdict.
In this appeal, Exxon has focused intensively on the sen-
tences in our earlier opinion where we noted that pre-
judgment payments generally should not be part of the “nu-
merator” to avoid deterring pre-judgment settlements. Puni-
tive Damages Opinion I, 270 F.3d at 1242. Exxon has argued
strenuously in the district court and to us that all of its settle-
ment and other pre-judgment compensatory payments to
plaintiffs must be subtracted from the over $500 million
amount of actual harm in the ratio of punitive damages we use
to review the award pursuant to the BMW v. Gore/State Farm
factors. This would reduce the harm to the relatively paltry
figure of $20.3 million.
We recognized in Punitive Damages Opinion I that Exxon,
soon after the spill, instituted a claims payment system that
almost fully compensated plaintiffs for their economic losses
and did so promptly. Id. We also recognized that Exxon’s
prompt payment of compensatory damages should be a sub-
stantial mitigating factor in our review of punitives. Id.
In Exxon’s appeal, major issues therefore relate to how,
after State Farm, to assess the reprehensibility of Exxon’s
conduct and the effect of the mitigating factors. An important
subsidiary issue is the extent to which we are bound to give
literal effect to the sentences in our earlier opinion concerning
subtracting the pre-judgment payments from actual harm,
even though State Farm suggests the mitigating factors should
be taken into account differently. For the reasons more fully
explained in this opinion, we do not accept the minimal bot-
tom line figure urged by Exxon and properly rejected by the
IN RE: THE EXXON VALDEZ 6065
district court. We do, however, conclude there is merit to
Exxon’s contention that punitives should be reduced.
In their cross appeal, plaintiffs seek a reinstatement of the
original $5 billion punitive award. We do not fully adopt their
position either because doing so would peg the ratio of puni-
tive damages to harm at a level State Farm reserves only for
the most egregious misconduct. There was no intentional
infliction of harm in this case. In addition, because Exxon’s
mitigating efforts after the accident diminish the relative rep-
rehensibility of its original misconduct for purposes of
reviewing punitive damages, such a high ratio is not war-
ranted in this case.
III. ANALYSIS
A. Lessons From History.
The history of the experience of the Supreme Court with
punitive damages over the last decade-and-a-half reflects an
evolutionary, not a revolutionary, course. In its first opinion
in Haslip, the Court suggested that there might be a bright line
of demarcation between punitive damages that comport with
constitutional protections, and punitive damages that do not.
Haslip, 499 U.S. at 23. Although it did not say what “the line”
would be, it termed ratios of punitive damages to compensa-
tory damages of 4 to 1, and to out-of-pocket costs of 200 to
1, to be close to it. Id.
In subsequent cases, however, the Court expressly avoided
a rigid mathematical formula or limit, while refining its ratio
analysis, concluding in State Farm that a ratio of punitive
damages to actual harm of less than 10 to 1 was more likely
to comport with due process than an award with a higher
ratio. State Farm, 538 U.S. at 425. Along the way, the Court’s
experience reflects efforts to comport with the tried and true
concepts inherent in due process, i.e., those of notice and fair-
ness. See, e.g., Mullane v. Cent. Hanover Bank & Trust Co.,
6066 IN RE: THE EXXON VALDEZ
339 U.S. 306 (1950); Int’l Shoe Co. v. Washington, 326 U.S.
310 (1945).
In State Farm, the Court expressly noted its concern that
the jury had been allowed to take into account the effect of
conduct that may have taken place nationwide on thousands
of potential plaintiffs. State Farm, 938 U.S. at 422. The
unfairness of a defendant being hit with punitive damages
many times for the same conduct was central to the Court’s
analysis in remanding. Id. The Court explained,
“[p]unishment on these bases creates the possibility of multi-
ple punitive damages awards for the same conduct; for in the
usual case non-parties are not bound by the judgment some
other plaintiff obtains.” Id. at 423.
Indeed, in State Farm, the Court stressed that the most
important factor is the reprehensibility of the particular con-
duct in the case. State Farm, 538 U.S. at 419. This is because,
in assessing the foreseeability of the possible effects of the
defendant’s conduct as it might bear on punitive damages, the
reviewing court is in reality dealing with the traditional con-
cept of the need for fair notice of the possible legal conse-
quences of one’s misconduct. Id. at 417.
Perhaps because such traditional elements of due process
are flexible, the Supreme Court has not often taken on the task
of reviewing the amount of punitive damages and has, in fact,
overturned only two punitive awards because of their size.
Each of them exceeded by a multiple of more than 100 the
amount of compensatory payments necessary to compensate
a plaintiff for the actual harm caused by the defendant’s mis-
conduct. BMW v. Gore, 517 U.S. at 582 (striking down a
500:1 ratio); State Farm, 538 U.S. at 429 (striking down a
145:1 ratio).
B. BMW v. Gore/State Farm Guideposts.
[1] BMW v. Gore identified three guideposts for reviewing
punitive damages, and State Farm added important refine-
IN RE: THE EXXON VALDEZ 6067
ments. The guideposts are (1) the reprehensibility of the
defendant’s misconduct, (2) the ratio of punitives to harm,
and (3) comparable statutory penalties. They need not be rig-
idly or exclusively applied, for we agree with our sister circuit
that “[t]hese guideposts should not be taken as an analytical
straight jacket.” Zimmerman v. Direct Federal Credit Union,
262 F.3d 70, 81 (1st Cir. 2001). We must, nevertheless, exam-
ine them in the context of this case.
1. Reprehensibility.
The most important guidepost is the reprehensibility of
Exxon’s misconduct. State Farm, 538 U.S. 419 (quoting
BMW v. Gore, 517 U.S. at 575). In our prior opinion, we
defined the relevant misconduct supporting punitive damages
as Exxon’s keeping Hazelwood in command with knowledge
of Hazelwood’s relapse into alcoholism. We said that “Exxon
knew Hazelwood was an alcoholic, knew that he had failed to
maintain his treatment regimen and had resumed drinking,
knew that he was going on board to command its supertankers
after drinking, yet let him continue to command the Exxon
Valdez through the icy and treacherous waters of Prince Wil-
liam Sound.” Punitive Damages Opinion I, 270 F.3d at 1237-
38. We see no need to reconsider this issue, despite Exxon’s
invitation to do so.
To evaluate the reprehensibility of the misconduct, State
Farm refers to five sub-factors: (1) the type of harm, (2)
whether there was reckless disregard for health and safety of
others, (3) whether there were financially vulnerable targets,
(4) whether there was repeated misconduct and (5) whether it
involved intentional malice, trickery, or deceit, rather than
mere accident. State Farm, 538 U.S. at 419.
[2] We must also consider mitigating factors. In Punitive
Damages Opinion I, in the context of this particular case, we
looked to Exxon’s response to the catastrophe, including its
prompt cleanup and compensatory payments. We held they
6068 IN RE: THE EXXON VALDEZ
were factors mitigating the reprehensibility of the original
misconduct. Punitive Damages Opinion I, 270 F.3d at 1242.
“Reprehensibility should be discounted if defendants act
promptly and comprehensively to ameliorate any harm they
cause in order to encourage such socially beneficial behav-
ior.” Id.
The dissent takes issue with two components of our BMW
v. Gore analysis. Its reasons, however, are surprising, because
they contradict our unanimous holding in Punitive Damages
Opinion I, 270 F.2d at 1242, that the spill was not intentional
nor Exxon’s conduct malicious. See Dissent at 6105 (charac-
terizing Exxon’s conduct as “malicious”). Then, the dissent
misapplies the Supreme Court’s mandate that we must per-
form an exacting appellate review to ensure that “an award of
punitive damages is based upon an ‘application of law, rather
than a decisionmaker’s caprice.’ ” State Farm, 538 U.S. at
418 (citing BMW v. Gore, 517 U.S. at 587).
First, the dissent maintains that the value of defendant’s
pre-litigation mitigation efforts should not affect punitive
damages because the Supreme Court did not explicitly pro-
vide for such a calculus in State Farm. Dissent at 6096. Thus,
the dissent would reject the principle of stare decisis and the
law of the case and overturn our holding in Punitive Damages
Opinion I, 270 F.3d at 1242, that Exxon’s voluntary compen-
sation to the plaintiffs effectuated good public policy in mak-
ing an injured party whole as quickly as possible. We are not
prepared to question the soundness of our unanimous conclu-
sion in Punitive Damages Opinion I merely because interven-
ing Supreme Court jurisprudence in the insurance context did
not address the issue. See State Farm, 538 U.S. 408. By con-
trast here, we have already held that mitigation is both rele-
vant and conscientious in the toxic-tort setting. It would be
unwise in reviewing punitive damages to ignore the prompt
steps of a defendant to take curative action in a mass tort case.
The dissent also claims that we improperly treat BMW’s
fifth factor, the fault analysis, as a dichotomy with two mutu-
IN RE: THE EXXON VALDEZ 6069
ally exclusive options: finding Exxon’s conduct intentional
and thus grossly reprehensible, or finding it accidental and
thus to a large degree excusable. Dissent at 6099-6100. This
is not our analysis. We acknowledge that Exxon’s conduct
was not intended to cause an oil spill, but neither was allow-
ing a relapsed alcoholic to command a supertanker “mere
accident.” Majority at 6075. Exxon’s reckless malfeasance
falls in the middle of a continuum between accidental and
intentional conduct. Accordingly, the fifth subfactor of the
reprehensibility analysis supports neither high nor low repre-
hensibility on the part of Exxon.
The Supreme Court has reserved the upper echelons of con-
stitutional punitive damages (a 9 to 1 ratio) for conduct done
with the most vile of intentions. Thus, an affirmance of the
district court’s application of such a ratio in this case, where
the defendant’s conduct was reckless but not intentional,
would transgress the requisite constitutional boundaries as the
Supreme Court has explained them to date.
We turn now to the specific State Farm reprehensibility
subfactors. These demonstrate that a 5 to 1 ratio more appro-
priately comports with due process.
a. Type of Harm — Physical versus Economic.
[3] To evaluate the type of harm, State Farm instructs us
to consider whether “the harm was physical as opposed to
economic,” because conduct producing physical harm is more
reprehensible. State Farm, 538 U.S. at 419. In this case the
district court found that Exxon’s conduct caused no actual
physical harm to people, but caused more than mere economic
harm to them, because the economic effects of its misconduct
produced severe emotional harm as well. We agree with the
district court’s explanation that “the spilling of 11 million gal-
lons of crude oil into Prince William Sound and Lower Cook
Inlet disrupted the lives (and livelihood) of thousands of
6070 IN RE: THE EXXON VALDEZ
claimants for years.” District Court Opinion, 296 F. Supp. 2d
at 1094.
[4] The Supreme Court has recognized conduct causing
emotional as well as economic harm can be more reprehensi-
ble than conduct causing mere economic harm. See BMW v.
Gore, 517 U.S. at 576 n.24. There it cited Blanchard v. Mor-
ris, 15 Ill. 35, 36 (1853), a case affirming a $700 punitive
award against individuals who caused no physical harm and
only $13 of economic harm, but used mental torture to extort
it.
In Bains LLC v. Arco Products Co., 405 F.3d 764, 775 (9th
Cir. 2005), we held that “intentional, repeated ethnic harass-
ment” increased the level of reprehensibility beyond the
merely economic. See also Swinton v. Potomac Corp., 270
F.3d 794, 818 (9th Cir. 2001). The gratuitous, intentional
mental oppression of the victims made it “highly reprehensi-
ble conduct, though not threatening to life or limb.” Id. At
777. In Planned Parenthood v. American Coalition of Life
Activists, 422 F.3d 949, 958 (9th Cir. 2005), we held that a
“true threat” increased reprehensibility even though it was not
carried out, because the threat was intended to intimidate, and
the economic component went beyond reducing the victim’s
wealth or income to trying to drive the victims away from
their practices of medicine. Our Planned Parenthood decision
was consistent with BMW’s citation with approval of older
decisions upholding awards based on the “mental fear, torture,
and agony of mind” caused by the threat of violence. BMW
517 U.S. at 575-76, n.24.
The district court concluded that the mental distress caused
by the oil spill to the fishermen and property owners who
were harmed economically justified a higher level of repre-
hensibility, and Exxon urges that emotional distress damages
were not before the jury. Because our review must be de novo
under Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424, 436 (2001), we are not bound by the district
IN RE: THE EXXON VALDEZ 6071
court’s rationale. The cases discussed above show that puni-
tive damages can — and traditionally do — consider the
effects of the tortfeasor’s conduct on the victim’s mentality,
not just his pocketbook. On the other hand, they may not go
so far, and we need not, as to justify punitive damages for
accidentally causing mental distress. State Farm states that
compensatory damages for mental distress generally include
a punitive element, so including mental distress in punitive
damages may be duplicative. 538 U.S. at 426.
[5] What comes to something near the same result in this
case, though it would not in most cases, is the entirely fore-
seeable disruption to the way tens of thousands people live
their lives if a giant oil tanker were to run aground and spill
its cargo. When tens of thousands of people have to change
the way they make their living, their mental distress is not
comparable to a BMW owner, or even a large number of
BMW owners, being distressed because their cars were
scratched or dented during shipment and repaired without
their knowledge. Anyone setting an oil tanker loose on the
seas under command of a relapsed alcoholic has to know that
he is imposing this massive risk. Though spilling the oil is an
accident, putting the relapsed alcoholic in charge of the tanker
is a deliberate act. The massive disruption of lives is entirely
predictable when a giant oil tanker goes astray. Thus, Exxon’s
reprehensibility goes considerably beyond the mere careless
imposition of economic harm.
b. Reckless Disregard for Health and Safety of Others.
[6] The second subfactor we consider in assessing repre-
hensibility is whether Exxon displayed a reckless disregard
for the health and safety of others. State Farm, 538 U.S. at
418. We conclude this subfactor also militates toward greater
reprehensibility. When Exxon trusted an officer it knew was
incompetent to command the Exxon Valdez through the
treacherous waters of Prince William Sound, Exxon acted
6072 IN RE: THE EXXON VALDEZ
with reckless disregard for the health and safety of all those
in the vicinity.
The Exxon Valdez grounding created a grave risk of physi-
cal harm for the crew and those who had to come to its rescue.
The district court found that something as simple as an
electro-static discharge could have ignited the crude oil and
incinerated everyone in the vicinity. District Court Opinion,
296 F. Supp. 2d at 1095. We therefore agree with the district
court that Exxon acted with reckless disregard of the health
and safety of others when it put in command a person not
competent to perform that role.
Exxon argues that State Farm requires us to ignore Exxon’s
disregard of the potential harm to the crew and rescuers
because they are not plaintiffs to this litigation. Exxon mis-
reads State Farm. State Farm disapproved punishing defen-
dants for conduct in other states in which it might be lawful.
538 U.S. at 1522. Likewise, we had held in White v. Ford
Motor Company, before State Farm came down, that a jury’s
punitive damages award based on extraterritorial conduct
(plaintiff’s lawyer had made a “send them a message” argu-
ment addressing nationwide conduct) violated principles of
federalism established in BMW v. Gore. 312 F.3d 998, 1013-
14 (9th Cir. 2002). These cases do not prohibit consideration
of the potential harm to individuals merely because they are
not plaintiffs. See 538 U.S. at 1522. The lesson is that the
award in the other litigation “should have been analyzed in
the context of the reprehensibility guidepost only.” Id.; BMW
v. Gore, 517 U.S. at 574 n.21. State Farm therefore holds it
is appropriate to look at the risk to others in analyzing repre-
hensibility. State Farm, 538 U.S. at 427.
State Farm does warn against considering dissimilar acts of
the defendant, or what is described as acts “independent from
the acts upon which liability was premised.” Id. at 422. The
Court explained this is because “[a] defendant should be pun-
ished for the conduct that harmed the plaintiff, not for being
IN RE: THE EXXON VALDEZ 6073
an unsavory individual or business.” Id. at 423. Here, how-
ever, the conduct that threatened the safety of the crew and
rescuers is the same conduct that harmed the plaintiffs, and is
the conduct that underlies this punitive damages litigation:
Exxon’s knowingly placing a relapsed alcoholic in charge of
the Exxon Valdez. The prohibition in State Farm against con-
sidering dissimilar acts does not apply here because taking
into account the potential harm to the crew and rescuers pun-
ishes Exxon for the same conduct that harmed the plaintiffs.
We have made this point before. See, for example, Hangarter
v. Provident Life and Accident Insurance Co., 373 F.3d 998,
1015 n.11 (9th Cir. 2004), where we analyzed company-wide
policies in a single-plaintiff lawsuit and distinguished State
Farm’s warning against considering dissimilar acts. We said
“unlike in State Farm, a legally sufficient nexus existed
between Defendant’s allegedly widespread corporate policies
and the termination of [the plaintiff’s] benefits.” Id.
[7] Accordingly, where the same conduct risked harm to
all, the risk to all can be considered as a factor in assessing
reprehensibility. The district court did not err in recognizing
that Exxon recklessly disregarded the physical safety of the
crew and rescuers, and thereby increased the reprehensibility
of its conduct in putting Hazelwood in command.
c. Financially Vulnerable Targets.
The district court found Exxon’s conduct harmed finan-
cially vulnerable subsistence fishermen. District Court Opin-
ion, 296 F. Supp. 2d at 1095. Exxon does not dispute that
subsistence fishermen were financially vulnerable or that its
reckless actions harmed them. It does contend that this factor
applies only in fraud cases when a defendant intentionally
defrauds financially vulnerable targets, such as the sick or
elderly. While we do not believe the subfactor is so limited,
we agree there must be some kind of intentional aiming or tar-
geting of the vulnerable that did not occur here.
6074 IN RE: THE EXXON VALDEZ
The purpose of reprehensibility analysis is to determine
“the enormity” of the offense, which “reflects the accepted
view that some wrongs are more blameworthy than others.”
BMW v. Gore, 517 U.S. at 575. The notion of “targeting” con-
notes some element of intent to harm particular individuals or
categories of individuals. See Planned Parenthood, 422 F.3d
at 958-59 (holding plaintiffs were financially vulnerable
because the defendants’ threats attempted to scare the plain-
tiffs into quitting the jobs on which the plaintiffs’ livelihoods
depended). Exxon did not intentionally target subsistence
fishermen.
We conclude in this case that this consideration does not
materially affect our assessment of the reprehensibility of
Exxon’s conduct.
d. Repeated Action.
[8] The district court found that the conduct was repetitive
because Exxon repeatedly allowed Hazelwood to command
its supertankers for three years after it knew he had resumed
drinking. District Court Opinion, 296 F. Supp. 2d at 1096. As
the district court observed, Exxon did so, even though Exxon
was fully aware of the tremendous risk of harm that it
entailed. Id. “Over and over again, Exxon did nothing to pre-
vent Captain Hazelwood [from sailing] into and out of Prince
William Sound with a full load of crude oil.” Id.
[9] Exxon argues that the relevant conduct is the grounding,
not the knowledge of Hazelwood’s incapacity to command.
That is not consistent with our description of the relevant mis-
conduct in Punitive Damages Opinion I as putting (and leav-
ing) Captain Hazelwood in command. Punitive Damages
Opinion I, 270 F.2d at 1237-38. The district court’s finding of
repetitive misconduct was not clearly erroneous. Planned
Parenthood, 422 F.3d at 954. It militates in favor of increased
reprehensibility.
IN RE: THE EXXON VALDEZ 6075
e. Intentional Malice or Mere Accident.
Putting Captain Hazelwood in command of the super-
tanker was knowing and reckless misconduct. We agree with
the district court that this misconduct was not “mere acci-
dent.” District Court Opinion, 296 F. Supp. 2d at 1096.
Exxon points out that relieving Hazelwood of command
would have denied Hazelwood an employment opportunity on
the basis of alcoholism and theoretically subjected Exxon to
a disability discrimination lawsuit. While Exxon’s concerns
may have been appropriate considerations in its evaluation of
the risk, they do not justify the dangers its decision created to
the livelihoods of tens of thousands of individuals. Spilling
the oil was an accident, but putting a relapsed alcoholic in
charge of a supertanker was not. And anyone doing so would
know they were imposing a tremendous risk on a tremendous
number of people who could not do anything about it.
Exxon’s knowing disregard of the interests of commercial
fishermen, subsistence fishermen, fish processors, cannery
workers, tenders, seafood brokers and others dependent on
Prince William Sound for their livelihoods, cannot be
regarded as merely accidental.
[10] At the same time, we must acknowledge that Exxon
acted with no intentional malice towards the plaintiffs. We
have consistently treated intentional conduct as more repre-
hensible than other forms of conduct subject to punitive dam-
ages. See Zhang, 339 F.3d at 1043; Bains LLC v. Arco
Products Co., 405 F.3d 764, 775 (9th Cir. 2005); Southern
Union Co. v. Southwest Gas Corp., 415 F.3d 1001, 1011 (9th
Cir. 2005). In this case, however, as we have already recog-
nized, “as bad as the oil spill was, Exxon did not spill the oil
on purpose.” Punitive Damages Opinion I, 270 F.3d at 1242-
43. While the reprehensibility of Exxon’s conduct that pro-
duced economic harm to thousands of individuals is high, the
conduct did not result in intentional damage to anyone. This
6076 IN RE: THE EXXON VALDEZ
subfactor thus militates against viewing Exxon’s misconduct
as highly reprehensible. Id.
f. Mitigation of Reprehensibility.
[11] In assessing reprehensibility, we must not only take
into account the reprehensibility of the original misconduct,
but we have held that we must also take into account what has
been done to mitigate the harm that the misconduct caused.
Punitive Damages Opinion I, 270 F.3d at 1242; see also Swin-
ton, 270 F.3d at 814-15 (discussing weight and relevance of
post-tort mitigation evidence). As we said in Punitive Dam-
ages Opinion I, mitigation is to be considered “in order to
encourage such socially beneficial behavior.” Punitive Dam-
ages Opinion I, 270 F.3d at 1242. Here, Exxon instituted a
system of voluntary payments to plaintiffs and it undertook
prompt cleanup efforts. We agree with what we said before:
“Exxon spent millions of dollars to compensate many people
after the oil spill, thereby mitigating the harm to them and the
reprehensibility of its conduct.” Id.
IN RE: THE EXXON VALDEZ 6077
Volume 2 of 2
IN RE: THE EXXON VALDEZ 6079
g. Evaluation of Reprehensibility.
Placing a relapsed alcoholic in control of a supertanker was
highly reprehensible conduct. As a result, Exxon disrupted the
lives of thousands of people who depend on Prince William
Sound for their livelihoods, and endangered its own crew and
their rescuers. Over the span of three years, Exxon could and
should have relieved Captain Hazelwood of command of
supertankers, but it did not do so. At the same time, however,
Exxon did not act with malice toward plaintiffs or anyone
else; Exxon did not intend to damage plaintiffs’ livelihoods or
cause them the emotional grief that went with the economic
loss.
[12] Thus, Exxon’s conduct is in the higher realm of repre-
hensibility, but not in the highest realm. In addition Exxon’s
post-grounding efforts to mitigate the harm serve materially
to reduce the reprehensibility of the original misconduct.
They reduce the reprehensibility for purposes of our review
to, at most, a mid range.
2. Ratio of Harm to Punitives.
The second BMW guidepost, as reiterated and refined by
State Farm, is the “ratio between harm, or potential harm, to
the plaintiff and the punitive damages award.” State Farm,
538 U.S. at 424. The goal of our review at this guidepost is
to “ensure that the measure of punishment is both reasonable
and proportionate to the amount of harm to the plaintiff and
to the general damages recovered.” Id. at 426.
6080 IN RE: THE EXXON VALDEZ
a. Calculating The Harm.
In this case, the figure the district court used to represent
the harm to plaintiffs was $513.1 million. District Court
Opinion, 296 F. Supp. 2d at 1103. Calculating the total harm
to plaintiffs proved to be difficult because, in addition to con-
siderable economic losses, the spill caused other undeniable,
if not easily quantifiable, harms. See id. at 1094. The district
court eventually calculated the harm figure by adding the
compensatory damages verdict from the second phase of the
trial to the actual judgments, settlements, and other recoveries
various plaintiffs obtained as a result of the spill. Id. at 1099-
1101.
Exxon does not dispute that the district court’s finding of
$513.1 million in harm is fundamentally a valid measure of
the actual harm caused by the spill. However, it disagrees that
it should be the figure we ultimately use as part of the ratio
of punitive damages to harm that we review as the second
guidepost.
Exxon’s principal contention is that, before establishing the
harm figure in the ratio, we must first deduct millions of dol-
lars of payments and costs from the figure representing the
total actual harm caused by the spill. Exxon would have us
subtract a sum of about $493 million representing amounts
paid to plaintiffs through Exxon’s voluntary claims program
and other settlements. Exxon would then have us use that
reduced figure to represent the total harm in assessing the
ratio of punitives to harm.
[13] This brings us to the central argument Exxon makes in
this appeal. Exxon focuses on the language of our prior opin-
ion in Punitive Damages Opinion I where we said, in a
lengthy discussion of formulating possible ratios pursuant to
BMW v. Gore, “[t]he amount that a defendant voluntarily pays
before judgment should generally not be used as part of the
numerator, because that would generally deter settlements
IN RE: THE EXXON VALDEZ 6081
prior to judgment.” 270 F.3d at 1244. Exxon contends this
now means that in assessing the ratio of harm to punitives
after State Farm, we should ignore the total harm in favor of
a figure that in fact more closely approximates Exxon’s
remaining post-judgment liability for compensatory damages.
If we were to adopt Exxon’s interpretation of that sentence
as binding us now, the measure of harm would be a meager
$20.3 million. Applying the ratio of close to 1 to 1 that Exxon
asserts is appropriate, Exxon contends we should cap punitive
damages at $25 million. Under Exxon’s theory, even using a
ratio of 9 to 1, which approaches the highest allowable under
State Farm, punitive damages would be capped at $182.7 mil-
lion. This would be the limit, even though Exxon’s reckless-
ness led to more than $500 million in harm. We said, in
discussing the nature of the relationship between punitive
damages and harm:
The “reasonable relationship” is intrinsically
somewhat indeterminate. The numerator is “the
harm likely to result from the defendant’s conduct.”
[BMW v. Gore, 571 U.S. at 581]. The denominator
is the amount of punitive damages. Because the
numerator is ordinarily arguable, applying a mathe-
matical bright line as though that were an objective
measure of how high the punitive damages can go
would give a false suggestion of precision. That is
one reason why the Supreme Court has emphasized
that it is not possible to “draw a mathematical bright
line between the constitutionally acceptable and the
constitutionally unacceptable that would fit every
case.” [BMW v. Gore, 517 U.S. at 576]. . . .
Although it is difficult to determine the value of
the harm from the oil spill in the case at bar, the jury
awarded $287 million in compensatory damages,
and the ratio of $5 billion punitive damages to $287
million in compensatory damages is 17.42 to 1. The
6082 IN RE: THE EXXON VALDEZ
district court determined that “total harm could range
from $287 million to $418.7 million,” which pro-
duces a ratio between 12 to 1 and 17 to 1. This ratio
greatly exceeds the 4 to 1 ratio that the Supreme
Court called “close to the line” in Pacific Mutual
Life Ins. Co. v. Haslip[, 499 U.S. at 23].
The amount that a defendant voluntarily pays
before judgment should generally not be used as part
of the numerator, because that would deter settle-
ments prior to judgment. “[T]he general policy of
federal courts to promote settlement before trial is
even stronger in the context of large scale class
actions,” such as this one. [Cf. Icicle, 229 F.3d at
795; Baker, 239 F.3d at 988].
Punitive Damages Opinion I, 270 F.3d at 1243-44.
The district court rejected the proposition that voluntary
payments before judgment should not generally be used as
part of the calculation of harm. But our prior decision did not
constrain the ratio analysis so firmly as Exxon contends. We
did not say that voluntary payments before judgment could
not be considered in calculating the numerator for purposes of
comparing the numerator with the amount of the award; we
said that they “generally” could not. Considerations of settle-
ment, critical to our analysis in Icicle, 229 F.3d 790, bear on
the due process concerns at the heart of BMW’s discussion.
Whenever a defendant governed by a board is sued for con-
duct egregious enough to create a genuine risk of punitive
damages, those making its litigation decisions have to try to
predict what may happen in court. Some may recommend
obdurate resistance, and some may recommend settlement, or
prejudgment payments even without settlement, each making
arguments based on predictions. Those recommending pay-
ment can reasonably predict that the entity will not be ham-
mered as hard as if it obstinately resisted acceptance of any
responsibility. And their prediction would be reasonable.
IN RE: THE EXXON VALDEZ 6083
Criminal penalties have always been somewhat more lenient
for those who accepted responsibility prior to judgment, see
United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir.
1990) (upholding the constitutionality of U.S.S.G. §3E1.1),
and punitive damages are but a civil version of punishment
for wrongdoing. It makes no practical sense to disarm all
those in the future who want their boards to accept some
responsibility by cutting out all the benefit their firms would
get.
[14] There is a limit, however, to how far acceptance of
responsibility goes in both contexts. No criminal defendant
guilty of a serious wrong ordinarily resulting in lengthy
imprisonment could reasonably assume that he would receive
no imprisonment at all if he promptly pleaded guilty. And no
defendant’s board could reasonably predict that the defendant
could escape all punishment by paying predicted compensa-
tory damages before judgment. While “generally” prepay-
ments should not be used as part of the calculation of harm,
Punitive Damages Opinion I, 270 F.3d at 1244, that is not a
mechanical arithmetic limit, just as the nine to one limit is not
a mechanical arithmetic limit. See State Farm, 538 U.S. at
425; Planned Parenthood, 422 F.3d at 962; Bains, 405 F.3d
at 776-77. Due process considerations limit punitive damages
to what the wrongdoer could reasonably foresee, and that
works both ways.
[15] Therefore, Exxon’s argument goes too far. It would
produce, in Exxon’s analysis, a $25 million limit on punitive
damages where the harm was $513 million but $493 million
was paid before judgment. For purposes of notice to a tortfea-
sor of its liability risk, $25 million for causing a half billion
loss would obviously be too good to be true. A defendant can-
not buy full immunity from punitive damages by paying the
likely amount of compensatory damages before judgment.
There are also some secondary issues relating to calculating
harm. One concerns payments made by Aleyska Pipe Lines
6084 IN RE: THE EXXON VALDEZ
Service Corporation. Exxon asks us to set off $98 million that
its original co-defendant Alyeska Pipe Lines Service Corpora-
tion paid in settlement of plaintiffs’ claims. A consortium of
oil companies, including Exxon, had contracted with Alyeska
to respond to any oil spill in the area. After the Exxon Valdez
disaster, plaintiffs sued Alyeska for negligence in its response
to the spill, and eventually settled all claims against Alyeska,
including punitive damages, for $98 million. Exxon’s argu-
ment here is that this $98 million payment represents harm
attributable to Alyeska’s negligence, not Exxon’s reckless-
ness, and therefore should not be used to calculate damages
designed to punish and deter Exxon’s own harmful conduct.
There are two major reasons why Exxon’s position is not
correct. First, the harm caused by the oil spill is attributable
to Exxon under tort law principles. Exxon knowingly placed
a relapsed alcoholic in control of a supertanker loaded
with millions of gallons of oil. When it did so, Exxon
accepted the foreseeable risk from its choice of captain
that the tanker would have an accident causing an oil
spill, and that Alyeska might further aggravate the harm. See
Restatement (Second) of Torts §§ 433(a) cmt. c, 447(c),1 cmt.
e.2 In fact, William Stevens, the President of Exxon, testified
1
“The fact that an intervening act of a third person is negligent in itself
or is done in a negligent manner does not make it a superseding cause of
harm to another which the actor’s negligent conduct is a substantial factor
in bringing about, if . . . (c) the intervening act is a normal consequence
of a situation created by the actor’s conduct and the manner in which it
is done is not extraordinarily negligent.”
2
“The words ‘extraordinarily negligent’ denote the fact that men of ordi-
nary experience and reasonable judgment, looking at the matter after the
event and taking into account the prevalence of that ‘occasional negli-
gence,’ which is one of the incidents of human life,’ would not regard it
as extraordinary that the third person’s intervening act should have been
done in the negligent manner in which it was done. Since the third per-
son’s action is a product of the actor’s negligent conduct, there is good
reason for holding him responsible for its effects, even though it be done
in a negligent manner, unless the nature of the negligence is altogether
unusual.”
IN RE: THE EXXON VALDEZ 6085
before Congress that Exxon knew Alyeska was not prepared
to contain a spill of the size caused by the Exxon Valdez.
Because Exxon could be held liable for this foreseeable risk,
the district court properly included the harm caused by
Alyeska’s response as the natural consequence of the harm
caused by Exxon.
[16] Second, the situation Exxon now complains of is
strictly of its own making. In 1994, the Supreme Court held
that the proportional fault rule governs calculation of non-
settling defendant’s liability for compensatory damages in
maritime torts. See McDermott, Inc. v. AmClyde, 511 U.S.
202 (1994). Instead of following McDermott, Exxon agreed
with plaintiffs to proceed as if a pro tanto rule with respect to
co-defendants’ settlements still governed.3 Exxon apparently
thought it more advantageous at the time to have the $98 mil-
lion deducted from the final compensatory damage award
after the fact, rather than have the jury make a proportionate
fault finding. Since Exxon has already agreed that the $98
million does not represent harm attributable to Alyeska,
Exxon is not warranted in asserting that this is what it repre-
sents now.
3
The stipulation between the parties reads in relevant part:
“[N]otwithstanding the rule of proportionate shares set out in
McDermott, Inc. v. AmClyde, credit for the Aleyska settlement
. . . shall be deducted from the sum that would, in the absence of
this stipulation, be the aggregate amount of any judgment or
judgment in favor of plaintiffs . . . and the liability of Exxon and
Shipping for compensatory damages to any and all plaintiffs
herein shall be reduced by the aggregate sum of $98 million. . . .
The parties expressly recognize and agree that the sum of $98
million is not necessarily a fair measure of what would be
Alyeska’s proportionate share of liability to plaintiffs[,] but the
parties are entering into this Stipulation in order to avoid the
alteration of their trial preparation that would result from a last-
minute overturning of the parties’ assumption that [the pro tanto
approach] would govern at trial and from requiring litigation of
Alyeska’s proportionate share.”
6086 IN RE: THE EXXON VALDEZ
Exxon also contends that some $34 million included in the
district court’s harm finding should not properly be consid-
ered harm at all. This figure represents an apparent $9 million
overpayment by the Trans-Alaska Pipeline Liability Fund,
$13.4 million from the Phase IV settlement Exxon claims is
already accounted for elsewhere in the district court’s calcula-
tions, and $11.5 million paid to Native corporations and
municipalities for environmental clean up.
We conclude that the $9 million overpayment, inadver-
tently included in the district court’s findings, should be sub-
tracted from the total harm. Because Exxon does not specify
where the $13.4 million in double-counting is reflected in
other parts of the district court’s calculation, however, we are
unable to determine from our own review of the record where
they might be included. Therefore, Exxon has failed to con-
vince us that this figure should be reduced from the harm.
Finally, the $11.5 million Exxon paid to the plaintiffs for
clean up, like its early settlement of plaintiffs’ prospective
commercial losses, is a mitigating factor relevant to our judg-
ment about whether this punitive damages award is appropri-
ate. Like the earlier settlements the proper place for its
influence is as a mitigating circumstance to be considered in
our overall determination of the ratio’s reasonableness. It
does, however, represent a part of the total harm for which
Exxon is accountable.
[17] In sum, the district court’s attempt to approximate the
actual harm by adding together the various judgments, settle-
ments, and liabilities that Exxon had already acknowledged
was sound. Subtracting the $9 million Trans-Alaska Pipeline
Liability Fund overpayment that the district court inadver-
tently overlooked, we conclude this record supports a total
harm component of $504.1 million for purposes of analyzing
the ratio of harm to punitives.
IN RE: THE EXXON VALDEZ 6087
b. Evaluating the Reasonableness of the Ratio of Harm
to Punitives.
After our second remand, the district court reduced the
original punitive damages award of $5 billion to $4.5 billion.
This yielded a punitive damages to harm ratio of 8.77 to 1.
After our $9 million adjustment to the harm figure, that ratio
now stands at 8.93 to 1—a proportion bordering on the pre-
sumption of constitutional questionability. See State Farm,
538 U.S. at 425.
[18] In State Farm, the Supreme Court explained that “few
awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy
due process.” Id. at 425. Relatively high single-digit ratios
and perhaps even double-digit ratios may comply with due
process where “a particularly egregious act has resulted in
only a small amount of economic damages” or where “the
injury is hard to detect or the monetary value of the noneco-
nomic harm might have been difficult to determine.” Id.
(quoting BMW v. Gore, 517 U.S. at 582). Conversely, lower
single-digit ratios, even as low as 1 to 1, might mark the outer
limits of due process where compensatory damages are sub-
stantial. Id. This strongly suggests the ratio here is too high.
Our own decisions are also helpful. In Planned Parent-
hood, we used this guidance from State Farm to construct a
“rough framework” for determining the appropriate ratio of
punitive damages to harm. See 422 F.3d at 962. We held that
in cases where there are “significant economic damages” but
behavior is not “particularly egregious,” a ratio of up to 4 to
1 “serves as a good proxy for the limits of constitutionality.”
Id. (citing State Farm, 538 U.S. at 425). In cases with signifi-
cant economic damages and “more egregious behavior,” how-
ever, a single-digit ratio higher than 4 to 1 “might be
constitutional.” Id. (citing Zhang, 339 F.3d at 1043-44; Bains,
405 F.3d at 776-77). Finally, in cases where there are “insig-
nificant” economic damages and the behavior is “particularly
6088 IN RE: THE EXXON VALDEZ
egregious,” we said that “the single-digit ratio may not be a
good proxy for constitutionality.” Id.
The circumstances of this case fit into the second class of
cases in the Planned Parenthood framework. Exxon’s reck-
less decision to risk the livelihood of thousands by placing a
relapsed alcoholic in command of a supertanker, while molli-
fied by its prompt settlement and clean up policies, was “par-
ticularly egregious.” Moreover, the $500 million of loss is
well within the range of “significant” economic damages.
Thus, under Planned Parenthood, an appropriate ratio would
be above 4 to 1.
[19] Our review of the reprehensibility and mitigation
under the first guidepost of reprehensibility, however, com-
pels us to conclude the award should be toward the lower end
of that range. Our cases have generally reserved high single-
digit ratios for the most egregious forms of intentional mis-
conduct, such as threats of violence and intentional racial dis-
crimination. See Zhang, 339 F.3d at 1044 (upholding a ratio
of 7:1 for intentional racism); Bains, 405 F.3d at 776-77
(remanding for district court to set a ratio between 6:1 and 9:1
for intentional racism); Planned Parenthood 422 F.3d at 952,
963 (remitting to a 9:1 ratio for threats of violence). Exxon’s
conduct in this case, while inexcusable, did not involve any
intentional conduct that would normally be required to sup-
port a punitive damages award with a high single-digit ratio.
[20] Here mitigating factors also come into play. Exxon
instituted prompt efforts to clean up the spill and to compen-
sate the plaintiffs for their economic harm. As we earlier
observed, if a defendant acts promptly to ameliorate harm for
which it is responsible, the size of a punitive damages award
should be reduced to encourage socially beneficial behavior.
Punitive Damages Opinion I, 270 F.3d at 1242. Moreover, the
costs that Exxon incurred in compensating the plaintiffs and
cleaning up the oil spill have already substantially served the
IN RE: THE EXXON VALDEZ 6089
purposes of deterrence, lessening the need for a high punitive
damages award. Id. at 1244.
[21] Thus, Exxon’s conduct was particularly egregious and
involved significant economic damages. Nevertheless, its con-
duct was not intentional and it promptly took steps to amelio-
rate the harm it caused. With these considerations in mind, we
conclude that a punitive damages to harm ratio of more than
5 to 1 would violate due process standards under current con-
trolling Supreme Court and Ninth Circuit authority.
3. Comparable Penalties.
The third BMW v. Gore/State Farm guidepost is compara-
ble legislative penalties. Given the emphasis on this factor in
BMW v. Gore, we went to some lengths in Punitive Damages
Opinion I to extrapolate the comparable penalties that would
be imposed under state and federal law for the spill, the high-
est being approximately $1.03 billion dollars.
In State Farm, however, the Supreme Court stated that
“need not dwell long on this guidepost.” State Farm, 538 U.S.
at 428. In that case, the comparable penalties were not partic-
ularly informative: the comparable civil penalty was easily
“dwarfed” by the punitive award, and as to criminal penalties,
the Court explained that although their existence “does have
bearing on the seriousness with which a State views the
wrongful action,” they had “less utility” “[w]hen used to
determine the dollar amount of the award.” Id.
In our own circuit’s more recent post-BMW v. Gore and
State Farm cases, we have generally not attempted to quantify
legislative penalties. We have looked only to whether or not
the misconduct was dealt with seriously under state civil or
criminal laws. See, e.g., Planned Parenthood, 422 F.3d at
963. In several recent decisions we have not discussed the
factor at all. See Southern Union Co., 415 F.3d at 1009-11
(9th Cir. 2005); Hangarter, 373 F.3d at 1014-15. This may be
6090 IN RE: THE EXXON VALDEZ
because legislative judgments, unlike jury verdicts, do not
represent an individualized assessment of reprehensibility.
Here, the matter of spilling oil in navigable water has
clearly been taken quite seriously by legislatures, with Con-
gress enacting a specific statute after the spill, and state and
federal law having already authorized substantial penalties.
See Punitive Damages Opinion I, 270 F.3d at 1245-46. Thus,
the third BMW v. Gore/State Farm factor, substantial legisla-
tive penalties, supports our conclusion that Exxon’s reckless
conduct merits substantial punitive damages.
IV. CONCLUSION
For the foregoing reasons, Exxon’s reckless misconduct in
placing a known relapsed alcoholic in command of a super-
tanker, loaded with millions of barrels of oil, to navigate the
pristine and resource abundant waters of Prince William
Sound was reckless and warrants severe sanctions. The mis-
conduct did not, however, warrant sanctions at the highest
range allowable under the due process analysis, as explained
in the Supreme Court’s most recent opinion in State Farm.
[22] The district court’s imposition of punitive damages of
$4.5 billion, entered after our remand to reconsider due pro-
cess in light of State Farm, represents damages at the very
highest range, and is not warranted. It is not consistent with
the Supreme Court’s opinion in State Farm or with the most
important tenets of our prior opinion in Punitive Damages
Opinion I relating to Exxon’s mitigation of reprehensibility.
Although a one to one ratio marked the upper limit in State
Farm, the conduct here was far more egregious and justifies
a considerably higher ratio. An award of damages represent-
ing a ratio of punitives to harm of 5 to 1 is consistent with
both.
[23] The judgment of the district court is VACATED, and
the matter is remanded with instructions that the district court
IN RE: THE EXXON VALDEZ 6091
further reduce the punitive damages award to the amount of
$2.5 billion. We have decided pursuant to the de novo stan-
dard of review imposed by Leatherman, 532 U.S. at 436, that
this is the appropriate limit on punitive damages in this case
under the prevailing legal precedent. Thus, we do not remand
for further consideration of what the limit may be. It is time
for this protracted litigation to end.
VACATED AND REMANDED.
BROWNING, Circuit Judge, dissenting:
Because I believe the punitive damages award in this case
is not “grossly excessive,” I would affirm. In reviewing the
size of a punitive damages award, our sole duty is to ensure
its imposition does not violate due process. Where an award
lies within the bounds of due process, as this one does, we
may not substitute a figure we consider more reasonable for
one fairly awarded by a jury and properly reviewed by a dis-
trict court. Therefore, I respectfully dissent.
1. Due Process Review of Punitive Damages
To comport with the Constitution, a punitive damages
award must strike the proper balance between the state goals
of deterrence and retribution and a defendant’s due process
right to be free from arbitrary punishment. See State Farm
Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416-17 (2003).
The Supreme Court has determined the balance is upset at the
point an award becomes “grossly excessive,” reasoning that,
“[t]o the extent an award is grossly excessive, it furthers no
legitimate purpose and constitutes an arbitrary deprivation of
property.” Id. at 417 (citing Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1, 42 (1991)).
But as the majority notes, ante at 6065, the Court has
shown little inclination to define “grossly excessive” more
6092 IN RE: THE EXXON VALDEZ
concretely. See State Farm, 538 U.S. at 424; BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 582 (1996). While it has several
times hinted at the possibility of establishing a 4 to 1 bench-
mark ratio of punitive damages to compensatory damages, it
has never explicitly done so. See State Farm, 538 U.S. at 425
(citing BMW, 517 U.S. at 581; Haslip, 499 U.S. at 23-24).
Instead, the one constitutional limit the Court has identified is
that generally found between single-digit and double-digit
multipliers. See id. (“[F]ew awards exceeding a single-digit
ratio between punitive and compensatory damages, to a sig-
nificant degree, will satisfy due process. . . . Single-digit mul-
tipliers are more likely to comport with due process, while
still achieving the State’s goals of deterrence and retribution,
than awards with ratios in range of 500 to 1 [or] 145 to 1.”
(internal citations omitted)).
The Supreme Court’s reluctance to establish a more con-
crete limit, or to adopt any other sort of categorical approach,
counsels that in cases such as the one at bar, “[t]he judicial
function is to police a range, not a point.” Mathias v. Accor
Econ. Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003) (citing
BMW, 517 U.S. at 582-83; TXO Prod. Corp. v. Alliance Res.
Corp., 509 U.S. 443, 458 (1993)). We should let this punitive
damages award stand unless the BMW factors indicate with
some certainty that it was the product of caprice or bias such
that its imposition violates Exxon’s right to due process.1 “As-
suming that fair procedures were followed, a judgment that is
a product of that process is entitled to a strong presumption
1
The majority correctly recognizes, ante at 6047, that a determination
that an award is “grossly excessive” is reviewed de novo. Cooper Indus.,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001). De novo
review, however, is only applied to determine the constitutional upper
limit on a punitive damages award in a given case. If the award does not
exceed this ceiling, we owe deference to the determination of the district
court and jury. See id. at 433-34 (noting that within substantive limits on
an award, the jury has discretion in establishing the precise number). Coo-
per does not give us free reign to pick the number we would have chosen
had we sat as the jury or district court.
IN RE: THE EXXON VALDEZ 6093
of validity. Indeed, there are persuasive reasons for suggesting
that the presumption should be irrebuttable, or virtually so.”
TXO, 509 U.S. at 457 (plurality opinion) (internal citations
omitted).
No procedural concerns are present here that, at the outset,
might weaken the “strong presumption of validity” to which
this award is entitled. See BMW, 517 U.S. at 586-87 (Breyer,
J., concurring) (citing TXO, 509 U.S. at 457; Haslip, 499 U.S.
at 40-42); see also id. at 583 (“In most cases, the ratio will be
within a constitutionally acceptable range, and remittitur will
not be justified on this basis.”). The jury received thorough,
almost prescient, punitive damages instructions.2 And
although Exxon is a large corporation, there is no indication
that the size of this punitive damages award resulted from an
improper “emphasis on the wealth of the wrongdoer” at trial,
see TXO, 509 U.S. at 464, or from an attempt by Plaintiffs or
the jury to “make up for the failure of other factors, such as
‘reprehensibility,’ ” see BMW, 517 U.S. at 591 (Breyer, J., con-
curring).3
2
The district court explained the retributive and deterrent purposes of
punitive damages and the “appropriate,” i.e., non-environmental, counter-
vailing “Alaska-oriented” interests of the plaintiffs; cautioned the jury that
punitive damages must have a rational basis in the record and bear a rea-
sonable relationship to the harm; admonished the jury not to be arbitrary;
and, perhaps most importantly, alerted them that they could take Exxon’s
mitigation efforts into account when determining both whether punitive
damages were warranted and, if so, the size of the award. See In re Exxon
Valdez, 296 F. Supp. 2d 1071, 1091 (D. Alaska 2004). Considering that
BMW and State Farm were decided after the jury trial, these instructions
indeed were, as the majority notes, ante at 6051, “in retrospect, quite for-
ward looking.”
3
Indeed to the contrary, there is evidence in the record comparing this
award to Exxon’s wealth in a manner that suggests the award was neither
capricious nor an instance of over-deterrence. See In re Exxon Valdez, 296
F. Supp. 2d at 1105-06 (“[A]fter judgment was entered on the punitive
damages award, Exxon’s treasurer advised the court that ‘the full payment
of the Judgment would not have a material impact on the corporation or
its credit quality.’ ”).
6094 IN RE: THE EXXON VALDEZ
Furthermore, Exxon’s conduct implicates a strong state
interest in punishing reckless behavior and deterring its future
repetition. Our constitutional review must consider punitive
damages in the context of these state interests. See id. at 568
(“Only when an award can fairly be categorized as ‘grossly
excessive’ in relation to these interests does it enter the zone
of arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment.” (emphasis added)). In both State
Farm and BMW, the Court’s guidepost analysis was not an
entirely separate endeavor, but instead gave structure to its
constitutional concern that the defendants’ due process rights
were violated by judgments incorporating punishment for
conduct not properly before the awarding court. See State
Farm, 538 U.S. at 419-24 (discussing out-of-state conduct
and conduct unrelated to plaintiffs’ injuries); BMW, 517 U.S.
at 568-73 (describing out-of-state conduct).
In stark contrast, there is no concern here that the scope of
appropriate state interests has been exceeded. This punitive
damages award was imposed pursuant to strong, but properly
circumscribed, state interests. As the district court noted,
Plaintiffs’ collection of federal and state claims all arise out
of harm to “Alaska fisheries, Alaska business, [and] Alaska
property” caused by Exxon’s conduct having “a direct nexus
with the grounding of the Exxon Valdez on Bligh Reef in
Prince William Sound.” See In re Exxon Valdez, 296 F. Supp.
2d at 1090-91.
Thus, before engaging in the multi-factored analysis intro-
duced in BMW and reiterated in State Farm, it is important to
note that we are not faced here with any of the major constitu-
tional concerns present in those cases.
2. BMW Guidepost Analysis
Although I agree with much of the majority’s analysis
under BMW and State Farm, I cannot agree with it all.
Despite clear guidance from the Court that reprehensibility is
IN RE: THE EXXON VALDEZ 6095
the critical factor, the majority, ante at 6067, 6075-76, gives
defining weight to a consideration entirely of its own creation.
It then engages, ante at 6087-88, in what appears to be the
very “categorical approach” the Supreme Court has consis-
tently rejected. See BMW, 517 U.S. at 582. An appropriate
evaluation of the award in question demonstrates it is consti-
tutionally permissible.
(a) Reprehensibility
In its most recent punitive damages opinion, the Supreme
Court gave direct instruction to courts evaluating reprehensi-
bility. State Farm, 538 U.S. at 419. As the majority correctly
notes, ante at 6061-62, we must weigh five factors: (1)
whether the harm was solely economic, (2) whether the con-
duct showed indifference to or reckless disregard for others’
health and safety, (3) whether the conduct’s target was finan-
cially vulnerable, (4) whether the conduct involved repeated
actions, and (5) whether the harm resulted from intentional
malice or mere accident. State Farm, 538 U.S. at 419. Some-
what inexplicably, though, the majority adds to the State
Farm factors one of its own creation—post-tort mitigation.
See ante at 6067 (“We must also consider mitigating fac-
tors.”); id. at 6076. I do not agree that mitigation should be
considered in a reprehensibility analysis. Furthermore, unlike
the majority, I believe that all five State Farm factors weigh
in favor of finding that Exxon’s reckless conduct was highly
reprehensible.
(i) Mitigation
I cannot agree with the majority’s assertion that we must
consider Exxon’s post-tort mitigation in evaluating the repre-
hensibility of its original misconduct. See ante at 6067-68.
The majority is correct that when we previously considered
Exxon’s conduct, we suggested mitigation should be consid-
ered as part of the reprehensibility analysis. See Baker v.
Hazelwood (In re the Exxon Valdez), 270 F.3d 1213, 1242
6096 IN RE: THE EXXON VALDEZ
(9th Cir. 2001) [hereinafter Punitive Damages Opinion I].
However, subsequent to our decision in Punitive Damages
Opinion I, the Supreme Court decided State Farm, which sig-
nificantly refined the Court’s punitive damages jurisprudence.
The analysis of reprehensibility in State Farm differs from
our analysis in Punitive Damages Opinion I, and, as interven-
ing controlling authority, gives us reason to reconsider our
prior approach. See United States v. Bad Marriage, 439 F.3d
534, 538 (9th Cir. 2006) (noting that a court may reexamine
an issue it previously decided if “intervening controlling
authority makes reconsideration appropriate”).
When we considered mitigation in Punitive Damages Opin-
ion I, Supreme Court precedent provided limited guidance for
the reprehensibility analysis. In State Farm, however, the
Supreme Court explained that courts should use five specific
factors to evaluate reprehensibility. 538 U.S. at 419. Although
there was evidence of mitigation in State Farm, id. at 426, the
Court did not include mitigation as one of the factors in the
reprehensibility analysis. Given such explicit guidance, this
omission acquires particular significance and suggests we
reconsider our prior statement about mitigation.4 As explained
below, upon reconsideration I find that including mitigation in
the reprehensibility analysis is neither good law nor good pol-
icy.
Aside from a single mention of mitigation in Punitive Dam-
ages I, the majority’s approach is supported by neither
Supreme Court precedent nor our own precedent. The major-
ity cites Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir.
2001), as support, even though Swinton, like Punitive Dam-
ages Opinion I, was decided prior to State Farm. Therefore,
4
The majority suggests State Farm is distinguishable because the dis-
pute concerned an insurance contract rather than a toxic tort. See ante at
6048, 6068. However, the five-part reprehensibility analysis in State Farm
is designed to evaluate a broad range of conduct, and nothing in the opin-
ion indicates this framework applies only to insurance cases.
IN RE: THE EXXON VALDEZ 6097
it did not have the benefit of the Supreme Court’s most recent
and comprehensive analysis of reprehensibility. Furthermore,
Swinton did not consider whether mitigation warrants a reduc-
tion in a punitive damages award imposed by a jury. Rather,
our analysis was limited to the question of whether the district
court erred in excluding evidence of mitigation efforts in an
employment discrimination suit. See id. at 811, 815. We
refused in that case to create a generalized rule in the employ-
ment context or anywhere else. See id. at 814-15. Instead, we
left it to the discretion of the district courts to decide the rele-
vancy of mitigation efforts on a case-by-case basis.
We also expressly rejected the idea that the Supreme Court
endorses the categorical relevance of mitigation in punitive
damages calculations. See id. at 812 (“We do not interpret the
language in BMW and Cooper as relying on evidence of post-
occurrence remediation for overturning the punitive damages
awards; rather the Court appears simply to have been recount-
ing a full history of the litigation to give a complete picture
of the proceedings.”). While post-tort mitigation by a defen-
dant may or may not be relevant to a jury’s determination of
whether and in what amount to award punitive damages,
Swinton gives no support to the majority’s position that miti-
gation is properly considered as part of the reprehensibility
analysis in a constitutional review.
Additionally, the majority’s approach makes little sense as
a matter of policy, for it runs directly counter to the twin goals
of punitive damages: deterrence and retribution. See State
Farm, 538 U.S. at 416 (“[P]unitive damages serve a broader
function; they are aimed at deterrence and retribution.”); The-
odore Eisenberg, Damage Awards in Perspective, 36 Wake
Forest L. Rev. 1129, 1145 (2001) (“[A] wrongdoing party’s
voluntary—to the extent payments are truly voluntary after
being ‘caught’—remediation payment does not reduce the
propriety of punishing or deterring.”). While including miti-
gation in the reprehensibility analysis doubtlessly increases
the incentive to remediate, it does so at the expense of under-
6098 IN RE: THE EXXON VALDEZ
mining deterrence and retribution. The majority’s approach
minimizes deterrence by creating a post-tort means of limiting
punitive damages. This allows potential tortfeasors to engage
in risky behavior, safe in the knowledge they can minimize
liability for any resulting harm by prompt payment of foresee-
able damages. It also cripples the state’s interest in retribu-
tion, as it allows the tortfeasor, rather than the jury, to
recharacterize the reprehensibility of its misconduct after a
tort has been committed. Cf. Cooper, 532 U.S. at 432 (recog-
nizing that the “imposition of punitive damages is an expres-
sion of [the jury’s] moral condemnation”).
Nonetheless, the majority insists that including mitigation
in the reprehensibility analysis is good public policy because
it encourages socially beneficial conduct. Ante at 6076. A
company in Exxon’s position, however, already has signifi-
cant incentives to clean up its mess. Had Exxon not taken
prompt action to clean up the oil spill and compensate injured
parties, see ante at 6047, the actual harm caused could well
have exceeded the $504.1 million figure we use as the numer-
ator in our ratio analysis. See ante at 6086. Specifically, if
eleven billion gallons of oil were left indefinitely in Prince
William Sound, and injured parties were without resources to
start their lives anew, both economic and social harm would
have grown. This would have increased Exxon’s liability not
only for compensatory damages, but also for punitive dam-
ages. Greater actual harm translates to a larger punitive dam-
ages numerator and a higher ceiling for the punitive damages
award. Thus, mitigation is already reflected in the calculation
of compensatory damages and in our constitutional review of
the jury’s punitive damage award.
Moreover, I am not convinced the majority’s approach will
ultimately encourage defendants to settle. Cf. Franklin v. Kay-
pro Corp., 884 F.2d 1222, 1229 (9th Cir. 1989) (noting there
is an “overriding public interest” in promoting settlement).
Instead, I fear it has the unintended consequence of giving
tortfeasor defendants a way to reduce the risk of litigation
IN RE: THE EXXON VALDEZ 6099
without reaching a settlement with injured parties. Under our
past precedent, the threat of a significant punitive damages
award created a strong incentive for defendants to pay injured
parties in exchange for a release or similar arrangement.5 The
majority’s approach, however, allows defendants to limit their
exposure to punitive damages by taking unilateral steps, even
token ones, to remediate harm. I am concerned this will fre-
quently lead to more protracted litigation, as injured parties
will not necessarily be satisfied with defendants’ mitigation
efforts, and defendants will have less incentive to reach settle-
ment agreements. Thus, policy implications support the legal
conclusion that it is not appropriate to add mitigation to the
State Farm factors.
(ii) State Farm Factors
Because I see no basis for the majority’s inclusion of miti-
gation in our due process reprehensibility analysis, I consider
only the five factors outlined by the Supreme Court. I agree
with the majority that the first, second, and fourth factors6
5
In this case, the certification of a mandatory punitive damages class
meant that individual plaintiffs could not reduce the ultimate punitive
damages award by releasing their claims. See In re Exxon Valdez, 229
F.3d 790, 793 (9th Cir. 2000) (“Claims for compensatory damages could
be easily disposed of by exchanging payment for releases, but a plaintiff’s
release of its slice of the future lump-sum punitive damages award merely
reduced the number of claimants sharing the punitive damages pie, not the
size of the pie itself.”). However, several plaintiffs nonetheless used the
looming punitive damages award as a bargaining chip by allocating Exxon
a portion of any award they might receive. See ante at 6051.
6
I am not convinced by the majority’s analysis of the third factor, but
I do agree that it plays a relatively small role in this case and therefore
does not warrant an extended discussion. The majority classified as neutral
the third factor, whether “the target of the conduct had financial vulnera-
bility,” see State Farm, 538 U.S. at 419. As the majority admits, ante at
6075, by recklessly placing a “relapsed alcoholic in charge of a supertank-
er,” Exxon knew that it was “imposing a tremendous risk on a tremendous
number of people who could not do anything about it.” Not only were
many of those people “financially vulnerable” by virtue of being subsis-
6100 IN RE: THE EXXON VALDEZ
suggest Exxon’s conduct was highly reprehensible and capa-
ble of supporting a substantial award. However, I cannot
agree with the analysis concerning the fifth factor, whether
“the harm was the result of intentional malice, trickery, or
deceit, or mere accident.” State Farm, 538 U.S. at 419. As the
majority recognizes, Exxon’s decision to put a relapsed alco-
holic in charge of a supertanker constituted knowing and
reckless misconduct, which was neither intentionally mali-
cious nor a mere accident. Ante at 6075. However, faced with
conduct that does not fit squarely in either category men-
tioned in State Farm, the majority arbitrarily determines this
factor weighs against high reprehensibility because Exxon
“did not spill the oil on purpose.” Id., at 6075. I cannot agree
with this conclusion for two reasons.
First, if we read this State Farm factor to recognize only
two categories of conduct, the fact that Exxon’s acts fall in
neither category could suggest this is a neutral factor, weigh-
ing neither for nor against high reprehensibility. However, if
the majority is correct that we must determine whether
Exxon’s conduct is more similar to one category or the other,7
I believe it is closer to “intentional malice, trickery, or deceit”
than to “mere accident.” State Farm, 538 U.S. at 419; cf.
Black’s Law Dictionary 968 (7th ed. 1999) (defining malice
tence fishermen, but they were also particularly vulnerable to the specific
risk imposed on them by Exxon. See In re Exxon Valdez, 296 F. Supp. 2d
at 1094-95. Thus, I would find this factor indeed suggests Exxon’s reck-
less conduct was highly reprehensible. See BMW, 517 U.S. at 576 (“To be
sure, infliction of economic injury, especially . . . when the target is finan-
cially vulnerable, can warrant a substantial penalty.”).
7
Contrary to the majority’s assertion, ante at 6068, I do not suggest it
views Exxon’s conduct as a largely excusable accident. Rather, I note that
in finding this factor “militates against viewing Exxon’s misconduct as
highly reprehensible,” ante at 6076, the majority treats Exxon’s reckless
misconduct as it would treat an accident. This is not consistent with the
majority’s own statement that “the reprehensibility of Exxon’s conduct
that produced economic harm to thousands of individuals is high . . .” Id.
IN RE: THE EXXON VALDEZ 6101
as, inter alia, “[r]eckless disregard of the law or of a person’s
legal rights”). The jury held Exxon responsible not merely for
spilling oil, but rather for knowingly giving command of a
supertanker “carrying over 53 million gallons of volatile,
toxic, crude oil” to a relapsed alcoholic. See In re Exxon
Valdez, 296 F. Supp. 2d at 1097. Exxon did so for three years
with full knowledge of the tremendous risk of serious harm to
the health, safety, and livelihood of many people. See ante at
6071-72. This cannot fairly be described as an accident.
Given the extreme recklessness of Exxon’s conduct, I would
conclude the fifth factor militates in favor of finding Exxon’s
behavior highly reprehensible. Accord Swinton, 270 F.3d at
818 (holding that conduct which was, at most, reckless disre-
gard for others’ health and safety, easily “constitutes highly
reprehensible conduct justifying a significant punitive dam-
ages award”).
Thus, unlike the majority, I find that all five of State
Farm’s reprehensibility factors suggest that Exxon’s reckless
conduct in this case—the malicious endangerment of the
property and livelihood of thousands of Alaskans—was
highly, if not extremely, reprehensible and capable of “war-
rant[ing] a substantial penalty.” See BMW, 517 U.S. at 576.
(b) Ratio
Under the second BMW guidepost, we must analyze “the
disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages award.” See id. at 418.
While I agree with the majority’s “calculation of harm,” or
“numerator,” analysis, ante at 6087, I cannot agree with its
conclusion, id. at 6089, that the Constitution prohibits a ratio
in this case above 5 to 1. The majority arrives at this constitu-
tional limit through two steps. First, it uses the “rough frame-
work” of Planned Parenthood of Columbia/Willamette, Inc. v.
American Coalition of Life Activists, 422 F.3d 949 (9th Cir.
2005), to arrive at the conclusion that the appropriate ratio in
this case is above 4 to 1, but no greater than 9 to 1. Ante at
6102 IN RE: THE EXXON VALDEZ
6087-88. However, it then asserts the proper ratio cannot be
much greater than 4 to 1 because Exxon’s conduct was not
intentional and because Exxon attempted to mitigate the harm
it caused. Ante at 6088. I cannot agree with this.
In Planned Parenthood, we established a three-tiered
“rough framework” to guide us in determining an appropriate
ratio.8 Applying Planned Parenthood to this case, the majority
concludes a 4 to 1 benchmark is appropriate based on its
determination that the economic damages are “significant.”
Ante at 6087-88. As an initial matter, the majority’s assess-
ment of economic damages focuses on a number devoid of its
context. An award is significant not because it is numerically
large, but rather because it approaches full compensation for
the plaintiff’s harms. See State Farm, 538 U.S. at 426 (“The
compensatory award in this case was substantial; [the plain-
tiffs] were awarded $1 million for a year and a half of emo-
tional distress. This was complete compensation.”). I am not
convinced that a compensatory damages award that equates to
a mere $10,000 per plaintiff is actually “substantial” in the
way the Supreme Court uses the term. Cf. id. at 425 (provid-
ing, as an example of “small” economic damages, cases
where the injury was hard to detect or not fully economic in
nature).
Even if the majority were correct that the economic dam-
ages awarded in this case are “significant,” Planned Parent-
hood still does not support a 4 to 1 benchmark in this case.
In Planned Parenthood, we refused to remit the award to less
than a 9 to 1 ratio because not all of the plaintiff’s damages
were quantifiable, not all of it was compensated, and the
8
Where the economic damages are significant but the behavior not “par-
ticularly egregious,” a ratio of less than 4 to 1 is warranted. Planned Par-
enthood, 422 F.3d at 962. If the economic damages are significant but the
behavior “more egregious,” a ratio greater than 4 to 1 might be acceptable.
Id. Finally, if the economic damages are insignificant but the behavior is
“particularly egregious,” ratios beyond single digits may be appropriate.
Id.
IN RE: THE EXXON VALDEZ 6103
plaintiffs were likely to incur further costs. 422 F.3d at 963.
All three are true here as well. The oil spill disrupted the
social fabric of the plaintiffs’ community. See In re Exxon
Valdez, 296 F. Supp. 2d at 1094. This type of harm is not eas-
ily quantifiable. Moreover, the plaintiffs’ recovery in this case
was limited to economic harm. It therefore did not compen-
sate the plaintiffs for harm attributable to increased “social
conflict, cultural disruption and psychological stress.” Id.
Finally, there is evidence the plaintiffs have incurred substan-
tial further costs. See id. Thus, it cannot be said the compensa-
tory damages in this case are so large or sufficiently
comprehensive they warrant a lower punitive damages award.
Nor, in my mind, does the majority find support in Zhang
v. American Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir.
2003), or Bains LLC v. Arco Products Co., 405 F.3d 764 (9th
Cir. 2005). That we upheld an award in the 7 to 1 range in
Zhang, and remanded for a similar award in Bains—both for
intentional racial discrimination in the employment context—
says little if nothing about the constitutionality of this award
for the reckless endangerment of the property and livelihood
of tens of thousands of people. While it is true any given con-
duct is more reprehensible if intentional than if reckless, it
does not necessarily follow that all intentional conduct is
more reprehensible than all reckless conduct. Indeed, because
we are the first court to review an award for misconduct
resulting in harm of the type and scale at issue here, I find it
unhelpful to note that our cases to date “have generally
reserved high single-digit ratios for the most egregious forms
of intentional misconduct, such as threats of violence and
intentional racial discrimination.” See ante at 6088. Instead,
every indicator in this case suggests that Exxon’s reckless
conduct—leaving for three years a known alcoholic in com-
mand of a supertanker in treacherous waters upon which thou-
sands of people depend— is egregious enough to support an
award within the 9 to 1 range. Accord Swinton, 270 F.3d at
818-20 (upholding a 28 to 1 ratio despite recognizing that the
conduct at issue involved no acts or threats of violence and,
6104 IN RE: THE EXXON VALDEZ
therefore, “[did] not amount to the worst kind of tortious con-
duct a defendant can commit”).
One final consideration convinces me that the 8.93 to 1
ratio in this case does not indicate that Exxon has been subject
to a “grossly excessive” punitive damages award. In State
Farm, the Supreme Court reiterated that it is appropriate to
consider for purposes of ratio calculation not only the actual
harm caused, but the potential harm that a defendant’s mis-
conduct could have foreseeably caused. See 538 U.S. at 418
(describing the second guidepost as requiring consideration of
“the actual or potential harm suffered” (emphasis added) (cit-
ing BMW, 517 U.S. at 575)); accord TXO, 509 U.S. at 460
(“Taking account of the potential harm that might result from
the defendant’s conduct in calculating punitive damages was
consistent with the views we expressed in Haslip.” (internal
citation omitted)). As the majority recognizes, ante at 6071-
72, the potential harm from Exxon’s decision to keep Hazel-
wood in command of the Exxon Valdez was both massive and
foreseeable. But despite the propriety of such consideration,
the calculation of harm in this case explicitly incorporates
only an estimate of actual, and not of potential, harm. See In
re Exxon Valdez, 296 F. Supp. 2d at 1103; ante at 6087. Thus,
if anything, the jury’s punitive damages award potentially
undervalued the harm.
Conclusion
In accordance with State Farm and its predecessors, we are
required to subject this award to “exacting [de novo] appellate
review” in order to ensure it is “based upon an application of
law, rather than a decisionmaker’s caprice.” See 538 U.S. at
418 (internal quotation marks omitted) (quoting BMW, 517
U.S. at 587 (Breyer, J., concurring)). But that review does not
empower us to substitute our own, perhaps more finely-tuned,
award for one that was fairly awarded and already lies within
the range of constitutional awards. See BMW, 517 U.S. at 583
IN RE: THE EXXON VALDEZ 6105
(noting that most awards fall within a “constitutionally
acceptable range” (emphasis added)).
After thorough and concerned analysis of this punitive
damages award, I conclude that its imposition does not violate
Exxon’s constitutional right to due process. The award was
levied as a result of fair procedure and in pursuit of the undis-
putedly strong, and properly circumscribed, state interests in
punishing Exxon for its misconduct, and in deterring any sim-
ilar behavior by Exxon in waters it continues to frequent.
While the award is large, it addresses what must be character-
ized as extremely reprehensible misconduct. There is simply
no excuse for allowing a relapsed alcoholic to pilot a super-
tanker in any waters, much less for three years in the treacher-
ous and treasured waters of Prince William Sound. Exxon’s
knowing decision to do so was a malicious one that placed at
massive risk, and ultimately seriously injured, the property
and livelihood of tens of thousands of Alaskans. There is
every indication the award before us reasonably addresses that
egregious behavior, and nothing in the record that suggests it
resulted from passion, bias, or caprice. I therefore agree with
the district court’s assessment that there is no principled
means by which this award should be reduced. See In re
Exxon Valdez, 296 F. Supp. 2d at 1110. Accordingly, and
with respect, I dissent.
|
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333 F.Supp. 739 (1970)
Charles E. ROBERTSON, Plaintiff,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Defendant.
Civ. No. 69-553.
United States District Court, D. Oregon.
August 27, 1970.
Supplemental Finding of Fact September 22, 1970.
Millard M. Becker, Groce, Becker & Sipprell, Portland, Or., for plaintiff.
Theodore B. Jensen, Davis, Jensen, Martin & Robertson, Portland Or., for defendant.
OPINION
ALFRED T. GOODWIN, District Judge:
Charles E. Robertson as a defendant in a negligence case suffered a $170,574.15 judgment. He now brings this action against the Hartford Accident and Indemnity Company for damages caused by Hartford's failure to settle the negligence claim within the $5,000 limits of an insurance policy.
Robertson and William C. Pringle were friends. Pringle was the owner of an automobile and of a policy of public liability insurance providing the minimum coverage that would satisfy Oregon's financial responsibility law. After a day of driving around together, in company *740 with two other friends, Pringle asked Robertson to take over the driving duties, and Pringle went to sleep in the back seat of his own automobile. Robertson negligently drove the automobile off the road and into a ditch. The only person seriously injured in the accident was Pringle, whose spinal cord was damaged. The injury left Pringle permanently paralyzed in all four limbs. The accident was promptly reported to Hartford. Robertson had no insurance of his own.
The Portland claims supervisor who investigated the accident incorrectly assumed that Robertson's liability to Pringle would be that of a host automobile owner to a guest passenger under ORS 30.115. Accordingly, all Hartford employees handling the case treated the file as a "medical-pay" claim. Hartford closed the file after paying out the $1,000 limits of the "medical-pay" provision of the policy. By the time the $1,000 was paid, however, Pringle's medical expenses had already exceeded $9,000, and were later to exceed $20,000.
Pringle's family consulted their attorney, who brought in William Schulte as an associate. Mr. Schulte made a thorough investigation of the accident and of the assets of Charles E. Robertson. It appeared that the only asset Robertson had was his coverage as an additional insured under Pringle's policy. Realizing that litigation costs would quickly dissipate the meager limits of the available insurance, Mr. Schulte made a verbal demand upon Hartford's Portland claims office for immediate settlement of Pringle's claim by payment of the face amount of the policy ($5,000) without litigation. Mr. Schulte's telephone conversation was followed the next day by a formal written demand, which letter was referred to an employee of Hartford's claims department in Portland.
Hartford then consulted the Portland attorney who handled most of Hartford's defense work in the Portland area. He promptly advised Hartford to pay the face amount of the policy and settle the claim, as in his opinion the Oregon guest statute did not apply to the facts of the case.
Without answering Mr. Schulte's letter directly or even asking for additional time in which to study the question of settlement within the policy limits, Hartford's Portland office took the routine steps necessary to reopen a closed "medical-pay" file, with a view toward defending any legal action that might be filed against Robertson. One week after mailing the demand letter, having heard nothing from Hartford, Mr. Schulte filed the action which produced the judgment against Robertson.
There is no evidence that before Robertson was sued Hartford ever advised Robertson of its opportunity to close the case within the $5,000 limits of the policy. After Mr. Schulte had filed the action in the state circuit court, Hartford notified Robertson of his personal exposure to liability in the sum of $495,000, the amount by which Pringle's demand exceeded $5,000, and advised Robertson to take appropriate action to protect himself. Robertson saw an attorney, but by this time the only action that could have protected Robertson would have been the prompt payment of the face amount of the policy to Pringle.
Hartford proceeded, however, to defend the case, and Hartford's attorney apparently did so in a skillful and workmanlike manner, because the damages were held down to the sum of $150,000 general damages and $20,574.15 in special medical expenses. These damages were low, in light of the permanent and devastating injuries suffered by Pringle.
Pringle's attorney attempted to satisfy the judgment by an attachment against Robertson, but found no assets. (Hartford has paid its $5,000, plus court costs, to reduce the judgment.) In a creditor's proceeding, Pringle has attempted to levy upon Hartford as a garnishee, on the theory that Hartford holds assets belonging to Robertson in an amount sufficient to satisfy the entire judgment. *741 This garnishment proceeding so far has been unsuccessful in the state courts.
In the present action, Robertson contends that Hartford sacrificed Robertson's interests in favor of its own. The opinions of various insurance claims personnel and Oregon lawyers were received in evidence. The Oregon lawyers and insurance men called by the plaintiff testified that a reasonable and prudent insurance company in the circumstances of this case would have paid Pringle's demand promptly upon receiving Mr. Schulte's letter.
Mr. Schulte testified that payment of the policy limits would have been accepted in full settlement for several days after the action was commenced, but that by the time such payment was offered some six weeks later, his authority to settle for $5,000 had expired.
The witnesses for Hartford, on the other hand, testified that in their opinion Hartford exercised good faith and acted reasonably under all the circumstances. These witnesses assumed that Hartford's original handling of the file had been reasonable, and that Hartford's office routine upon reopening the file produced no unreasonable delay.
I find from the preponderance of the evidence that Hartford, through its Portland claims office, was negligent and that Hartford's negligence produced the loss to Robertson in the form of a judgment in excess of the policy protection.
Hartford's investigation of the accident was, by Hartford's own testimony, incomplete and superficial. Hartford's handling of the file cannot be justified in the light of Hartford's duty to protect the interests of its insured.
Hartford's assumption that the case did not expose its insured to liability was not founded upon a reasonable investigation, but rather grew out of a blind refusal to believe that an early impression might be wrong. Hartford's exposure was relatively inconsequential compared to that of the insured. Yet Hartford gave no evidence that it considered its insured as possessed of any rights in the case.
Reasonable minds, in 1967, could have differed concerning the application of the Oregon guest statute. It was not until after the trial of the Pringle damage action against Robertson that the Oregon Supreme Court decided that ORS 30.115 did not bar an action based upon ordinary negligence when an automobile owner was injured in his own car through the negligence of a person driving with his permission. See Prosch v. Cater, 252 Or. 63, 448 P.2d 380 (1968). There were strong indications in earlier cases, however, that the court would so hold when the proper question presented itself. See, e. g., Sheehan v. Apling, 227 Or. 594, 363 P.2d 575 (1961). Reasonable men engaged in the insurance business could not have failed to realize that there was a serious possibility of liability far in excess of the face amount of the insurance policy. Long before Hartford received the demand letter from Mr. Schulte, Hartford knew that Pringle's medical expenses had exceeded $9,000 and were still mounting.
If anyone in authority in the Hartford organization had paid proper attention to the file, Pringle's potential claim would have been kept in mind until the statute of limitations had run. But the file was neglected. Without a comprehensive investigation and the preservation of statements of all witnesses, Hartford's routine handling of the file left Robertson wholly unprotected.
I do not believe it is necessary under Oregon law to find that an insurance company is guilty of malicious misconduct or fraud in order to impose upon it liability for negligence in allowing a judgment to be suffered by an insured when the judgment could have been prevented by ordinary due care in the management of an accident claim.
Under Oregon law, an insurance underwriter owes his insured a duty of exercising reasonable care to protect *742 the interest of the insured as well as the interests of the insurance underwriter. It does not matter whether the insured paid a premium for the insurance protection or whether the insured, like Robertson, is an additional insured under a policy paid for by someone else. Someone has paid for insurance protection, and the underwriter has a duty to exercise at least the same degree of care in the insured's behalf as it exercises in its own behalf. Groce v. Fidelity General Insurance, 252 Or. 296, 448 P.2d 554 (1968); Radcliffe v. Franklin Nat'l Ins. Co., 208 Or. 1, 298 P.2d 1002 (1956).
Because I am satisfied that the Hartford claims personnel were not actuated by malice or bad faith, I have ruled that the plaintiff is not entitled to punitive damages. The case is one based on ordinary negligence. The fault arose out of bureaucratic bungling and assembly-line inefficiency, not bad faith.
The foregoing will constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). The Clerk will prepare a judgment for the plaintiff against the defendant after all the components have been calculated. Pursuant to a stipulation that the court may fix attorneys fees in a separate proceeding, the judgment will remain open until the plaintiff's attorneys fees for the enforcement of this claim have been determined under the rule announced in Groce v. Fidelity General Insurance, supra.
SUPPLEMENTAL FINDING OF FACT
At the conclusion of the trial the court requested memoranda from counsel on the law and the facts with reference to a reasonable attorneys' fee to be recovered by the plaintiff against the defendant under Oregon law.
The court having reviewed the memoranda and affidavits filed by counsel for both parties, and now being fully advised, hereby finds that the sum of $12,500 is a reasonable sum for the plaintiff to recover against the defendant as attorneys' fees.
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480 U.S. 39 (1987)
PENNSYLVANIA
v.
RITCHIE
No. 85-1347.
Supreme Court of United States.
Argued December 3, 1986
Decided February 24, 1987
CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA
*42 Edward Marcus Clark argued the cause for petitioner. With him on the briefs was Robert L. Eberhardt.
John H. Corbett, Jr., by invitation of the Court, 478 U. S. 1019, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief was Lester G. Nauhaus.[*]
JUSTICE POWELL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, and an opinion with respect to Part III-A, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join.
The question presented in this case is whether and to what extent a State's interest in the confidentiality of its investigative *43 files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence.
I
As part of its efforts to combat child abuse, the Commonwealth of Pennsylvania has established Children and Youth Services (CYS), a protective service agency charged with investigating cases of suspected mistreatment and neglect. In 1979, respondent George Ritchie was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of a minor. The victim of the alleged attacks was his 13-year-old daughter, who claimed that she had been assaulted by Ritchie two or three times per week during the previous four years. The girl reported the incidents to the police, and the matter then was referred to the CYS.
During pretrial discovery, Ritchie served CYS with a subpoena, seeking access to the records concerning the daughter. Ritchie requested disclosure of the file related to the immediate charges, as well as certain records that he claimed were compiled in 1978, when CYS investigated a separate report by an unidentified source that Ritchie's children were being abused.[1] CYS refused to comply with the subpoena, claiming that the records were privileged under Pennsylvania law. The relevant statute provides that all reports and other information obtained in the course of a CYS investigation must be kept confidential, subject to 11 specific exceptions.[2] One of those exceptions is that the agency may *44 disclose the reports to a "court of competent jurisdiction pursuant to a court order." Pa. Stat. Ann., Tit. 11, § 2215(a)(5) (Purdon Supp. 1986).
Ritchie moved to have CYS sanctioned for failing to honor the subpoena, and the trial court held a hearing on the motion in chambers. Ritchie argued that he was entitled to the information because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence. He also requested disclosure of a medical report that he believed was compiled during the 1978 CYS investigation. Although the trial judge acknowledged that he had not examined the entire CYS file, he accepted a CYS representative's assertion that there was no medical report in the record.[3] The judge then denied the motion and refused to order CYS to disclose the files.[4] See App. 72a.
At trial, the main witness against Ritchie was his daughter. In an attempt to rebut her testimony, defense counsel *45 cross-examined the girl at length, questioning her on all aspects of the alleged attacks and her reasons for not reporting the incidents sooner. Except for routine evidentiary rulings, the trial judge placed no limitation on the scope of cross-examination. At the close of trial Ritchie was convicted by a jury on all counts, and the judge sentenced him to 3 to 10 years in prison.
On appeal to the Pennsylvania Superior Court, Ritchie claimed, inter alia, that the failure to disclose the contents of the CYS file violated the Confrontation Clause of the Sixth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment.[5] The court agreed that there had been a constitutional violation, and accordingly vacated the conviction and remanded for further proceedings. 324 Pa. Super. 557, 472 A. 2d 220 (1984). The Superior Court ruled, however, that the right of confrontation did not entitle Ritchie to the full disclosure that he sought. It held that on remand, the trial judge first was to examine the confidential material in camera, and release only the verbatim statements made by the daughter to the CYS counselor. But the full record then was to be made available to Ritchie's lawyer, for the limited purpose of allowing him to argue the relevance of the statements. The court stated that the prosecutor also should be allowed to argue that the failure to disclose the statements was harmless error. If the trial judge determined that the lack of information was prejudicial, *46 Ritchie would be entitled to a new trial. Id., at 567-568, 472 A. 2d, at 226.
On appeal by the Commonwealth, the Supreme Court of Pennsylvania agreed that the conviction must be vacated and the case remanded to determine if a new trial is necessary. 509 Pa. 357, 502 A. 2d 148 (1985). But the court did not agree that the search for material evidence must be limited to the daughter's verbatim statements. Rather, it concluded that Ritchie, through his lawyer, is entitled to review the entire file to search for any useful evidence.[6] It stated: "When materials gathered become an arrow of inculpation, the person inculpated has a fundamental constitutional right to examine the provenance of the arrow and he who aims it." Id., at 367, 502 A. 2d, at 153. The Pennsylvania Court concluded that by denying access to the file, the trial court order had violated both the Confrontation Clause and the Compulsory Process Clause. The court was unpersuaded by the Commonwealth's argument that the trial judge already had examined the file and determined that it contained no relevant information. It ruled that the constitutional infirmity in the trial court's order was that Ritchie was unlawfully denied the opportunity to have the records reviewed by "the eyes and the perspective of an advocate," who may see relevance in places that a neutral judge would not. Ibid.
In light of the substantial and conflicting interests held by the Commonwealth and Ritchie, we granted certiorari. 476 U. S. 1139 (1986). We now affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion.
*47 II
Before turning to the constitutional questions, we first must address Ritchie's claim that the Court lacks jurisdiction, because the decision below is not a "final judgment or decree." See 28 U. S. C. § 1257(3); Market Street R. Co. v. Railroad Comm'n of California, 324 U. S. 548, 551 (1945). Normally the finality doctrine contained in § 1257(3) is not satisfied if the state courts still must conduct further substantive proceedings before the rights of the parties as to the federal issues are resolved. Ibid.; Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 123-127 (1945). Ritchie argues that under this standard the case is not final, because there are several more proceedings scheduled in the Pennsylvania courts: at a minimum there will be an in camera review of the file, and the parties will present arguments on whether the lack of disclosure was prejudicial; after that, there could be a new trial on the merits. Ritchie claims that because the Sixth Amendment issue may become moot at either of these stages, we should decline review until these further proceedings are completed.
Although it is true that this Court is without jurisdiction to review an interlocutory judgment, it also is true that the principles of finality have not been construed rigidly. As we recognized in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), there are at least four categories of cases in which jurisdiction is proper even when there are further proceedings anticipated in the state court. One of these exceptions states that the Court may consider cases:
"[W]here the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.. . . [I]n these cases, if the party seeking interim review ultimately prevails on the merits, the federal issue will be mooted; if he were to lose on the merits, however, the *48 governing state law would not permit him again to present his federal claims for review." Id., at 481.
We find that the case before us satisfies this standard because the Sixth Amendment issue will not survive for this Court to review, regardless of the outcome of the proceedings on remand. If the trial court decides that the CYS files do not contain relevant information, or that the nondisclosure was harmless, the Commonwealth will have prevailed and will have no basis to seek review. In this situation Ritchie's conviction will be reinstated, and the issue of whether defense counsel should have been given access will be moot. Should Ritchie appeal the trial court's decision, the Commonwealth's only method for preserving the constitutional issue would be by cross-claims. Thus the only way that this Court will be able to reach the Sixth Amendment issue is if Ritchie eventually files a petition for certiorari on the trial court's adverse ruling, and the Commonwealth files a cross-petition. When a case is in this procedural posture, we have considered it sufficiently final to justify review. See, e. g., New York v. Quarles, 467 U. S. 649, 651, n. 1 (1984); South Dakota v. Neville, 459 U. S. 553, 558, n. 6 (1983).
Alternatively, if Ritchie is found to have been prejudiced by the withholding and is granted a new trial, the Commonwealth still will be unable to obtain a ruling from this Court. On retrial Ritchie either will be convicted, in which case the Commonwealth's ability to obtain review again will rest on Ritchie's willingness to appeal; or he will be acquitted, in which case the Commonwealth will be barred from seeking review by the Double Jeopardy Clause. See ibid.; California v. Stewart, 384 U. S. 436, 498, n. 71 (1966) (decided with Miranda v. Arizona, 384 U. S. 436 (1966)). Therefore, if this Court does not consider the constitutional claims now, there may well be no opportunity to do so in the future.[7]
*49 The Sixth Amendment issue has been finally decided by the highest court of Pennsylvania, and unless we review that decision, the harm that the Commonwealth seeks to avoid the disclosure of the entire confidential file will occur regardless of the result on remand. We thus cannot agree with the suggestion in JUSTICE STEVENS' dissent that if we were to dismiss this case and it was resolved on other grounds after disclosure of the file, "the Commonwealth would not have been harmed." Post, at 74. This hardly could be true, because of the acknowledged public interest in ensuring the confidentiality of CYS records. See n. 17, infra. Although this consideration is not dispositive, we have noted that "statutorily created finality requirements *50 should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered." Mathews v. Eldridge, 424 U. S. 319, 331, n. 11 (1976). We therefore reject Ritchie's claim that the Court lacks jurisdiction, and turn to the merits of the case before us.[8]
*51 III
The Pennsylvania Supreme Court held that Ritchie, through his lawyer, has the right to examine the full contents of the CYS records. The court found that this right of access is required by both the Confrontation Clause and the Compulsory Process Clause. We discuss these constitutional provisions in turn.
A
The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination. Delaware v. Fensterer, 474 U. S. 15, 18-19 (1985) (per curiam). Ritchie does not allege a violation of the former right. He was not excluded from any part of the trial, nor did the prosecutor improperly introduce out-of-court statements as substantive evidence, thereby depriving Ritchie of the right to "confront" the declarant. See Ohio v. Roberts, 448 U. S. 56 (1980). Cf. United States v. Inadi, 475 U. S. 387 (1986). Instead, Ritchie claims that by denying him access to the information necessary to prepare his defense, the trial court interfered with his right of cross-examination.
Ritchie argues that he could not effectively question his daughter because, without the CYS material, he did not know which types of questions would best expose the weaknesses in her testimony. Had the files been disclosed, Ritchie argues that he might have been able to show that the daughter made statements to the CYS counselor that were inconsistent with her trial statements, or perhaps to reveal that the girl acted with an improper motive. Of course, the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or *52 unbelievable. United States v. Abel, 469 U. S. 45, 50 (1984); Davis v. Alaska, 415 U. S. 308, 316 (1974). Because this type of evidence can make the difference between conviction and acquittal, see Napue v. Illinois, 360 U. S. 264, 269 (1959), Ritchie argues that the failure to disclose information that might have made cross-examination more effective undermines the Confrontation Clause's purpose of increasing the accuracy of the truth-finding process at trial. See United States v. Inadi, supra, at 396.
The Pennsylvania Supreme Court accepted this argument, relying in part on our decision in Davis v. Alaska, supra. In Davis the trial judge prohibited defense counsel from questioning a witness about the latter's juvenile criminal record, because a state statute made this information presumptively confidential. We found that this restriction on cross-examination violated the Confrontation Clause, despite Alaska's legitimate interest in protecting the identity of juvenile offenders. 415 U. S., at 318-320. The Pennsylvania Supreme Court apparently interpreted our decision in Davis to mean that a statutory privilege cannot be maintained when a defendant asserts a need, prior to trial, for the protected information that might be used at trial to impeach or otherwise undermine a witness' testimony. See 509 Pa., at 365-367, 502 A. 2d, at 152-153.
If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. See California v. Green, 399 U. S. 149, 157 (1970) ("[I]t is this literal right to `confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause"); Barber v. Page, 390 U. S. 719, 725 (1968) ("The right to confrontation is basically a trial *53 right"). The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.[9] Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Delaware v. Fensterer, 474 U. S., at 20. In short, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id., at 20 (emphasis in original). See also Ohio v. Roberts, supra, at 73, n. 12 (except in "extraordinary cases, no inquiry into `effectiveness' [of cross-examination] is required").
We reaffirmed this interpretation of the Confrontation Clause last Term in Delaware v. Fensterer, supra. In that case, the defendant was convicted in part on the testimony of the State's expert witness, who could not remember which scientific test he had used to form his opinion. Although this inability to recall frustrated defense counsel's efforts to discredit the testimony, we held that there had been no Sixth Amendment violation. The Court found that the right of confrontation was not implicated, "for the trial court did not limit the scope or nature of defense counsel's cross-examination in any way." 474 U. S., at 19. Fensterer was in full accord with our earlier decisions that have upheld a Confrontation Clause infringement claim on this issue only *54 when there was a specific statutory or court-imposed restriction at trial on the scope of questioning.[10]
The lower court's reliance on Davis v. Alaska therefore is misplaced. There the state court had prohibited defense counsel from questioning the witness about his criminal record, even though that evidence might have affected the witness' credibility. The constitutional error in that case was not that Alaska made this information confidential; it was that the defendant was denied the right "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." 415 U. S., at 318. Similarly, in this case the Confrontation Clause was not violated by the withholding of the CYS file; it only would have been impermissible for the judge to have prevented Ritchie's lawyer from cross-examining the daughter. Because defense counsel was able to cross-examine all of the trial witnesses fully, we find that the Pennsylvania Supreme Court erred in holding that the failure to disclose the CYS file violated the Confrontation Clause.
*55 B
The Pennsylvania Supreme Court also suggested that the failure to disclose the CYS file violated the Sixth Amendment's guarantee of compulsory process. Ritchie asserts that the trial court's ruling prevented him from learning the names of the "witnesses in his favor," as well as other evidence that might be contained in the file. Although the basis for the Pennsylvania Supreme Court's ruling on this point is unclear, it apparently concluded that the right of compulsory process includes the right to have the State's assistance in uncovering arguably useful information, without regard to the existence of a state-created restriction here, the confidentiality of the files.
1
This Court has had little occasion to discuss the contours of the Compulsory Process Clause. The first and most celebrated analysis came from a Virginia federal court in 1807, during the treason and misdemeanor trials of Aaron Burr. Chief Justice Marshall, who presided as trial judge, ruled that Burr's compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence.[11]United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807). Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court's decisions during the next 160 years.[12] More recently, *56 however, the Court has articulated some of the specific rights secured by this part of the Sixth Amendment. Our cases establish, at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.[13]
This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. But cf. United States v. Nixon, 418 U. S. 683, 709, 711 (1974) (suggesting that the Clause may require the production of evidence). Instead, the Court traditionally has evaluated claims such as those raised by Ritchie under the broader protections of the Due Process Clause of the Fourteenth Amendment. See United States v. Bagley, 473 U. S. 667 (1985); Brady v. Maryland, 373 U. S. 83 (1963). See also Wardius v. Oregon, 412 U. S. 470 (1973). Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case. Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment. It is enough to conclude that on these facts, Ritchie's claims more properly are considered by reference to due process.
*57 It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. United States v. Agurs, 427 U. S. 97 (1976); Brady v. Maryland, supra, at 87. Although courts have used different terminologies to define "materiality," a majority of this Court has agreed, "[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U. S., at 682 (opinion of BLACKMUN, J.); see id., at 685 (opinion of WHITE, J.).
At this stage, of course, it is impossible to say whether any information in the CYS records may be relevant to Ritchie's claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file. The Commonwealth, however, argues that no materiality inquiry is required, because a statute renders the contents of the file privileged. Requiring disclosure here, it is argued, would override the Commonwealth's compelling interest in confidentiality on the mere speculation that the file "might" have been useful to the defense.
Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. Cf. 42 Pa. Cons. Stat. § 5945.1(b) (1982) (unqualified statutory privilege for communications between sexual assault counselors and victims).[14] Rather, the Pennsylvania *58 law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. Pa. Stat. Ann., Title 11, § 2215(a)(5) (Purdon Supp. 1986). Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is "material" to the defense of the accused.
We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.[15]
*59 C
This ruling does not end our analysis, because the Pennsylvania Supreme Court did more than simply remand. It also held that defense counsel must be allowed to examine all of the confidential information, both relevant and irrelevant, and present arguments in favor of disclosure. The court apparently concluded that whenever a defendant alleges that protected evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State's interest in confidentiality. We cannot agree.
A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files. See United States v. Bagley, supra, at 675; United States v. Agurs, supra, at 111. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U. S. 855, 875 (1966), this Court has never held even in the absence of a statute restricting disclosure that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U. S. 83 (1963), it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention,[16] the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. See Weatherford v. Bursey, 429 U. S. 545, 559 (1977) ("There *60 is no general constitutional right to discovery in a criminal case, and Brady did not create one").
We find that Ritchie's interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the CYS files be submitted only to the trial court for in camera review. Although this rule denies Ritchie the benefits of an "advocate's eye," we note that the trial court's discretion is not unbounded. If a defendant is aware of specific information contained in the file (e. g., the medical report), he is free to request it directly from the court, and argue in favor of its materiality. Moreover, the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial.
To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child-abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth like all other States[17] has made a commendable effort to assure victims *61 and witnesses that they may speak to the CYS counselors without fear of general disclosure. The Commonwealth's purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.
IV
We agree that Ritchie is entitled to know whether the CYS file contains information that may have changed the outcome of his trial had it been disclosed. Thus we agree that a remand is necessary. We disagree with the decision of the Pennsylvania Supreme Court to the extent that it allows defense counsel access to the CYS file. An in camera review by the trial court will serve Ritchie's interest without destroying the Commonwealth's need to protect the confidentiality of those involved in child-abuse investigations. The judgment of the Pennsylvania Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
I join Parts I, II, III-B, III-C, and IV of the Court's opinion. I write separately, however, because I do not accept the plurality's conclusion, as expressed in Part III-A of JUSTICE POWELL's opinion, that the Confrontation Clause protects only a defendant's trial rights and has no relevance to pretrial discovery. In this, I am in substantial agreement with much of what JUSTICE BRENNAN says, post, in dissent. In my view, there might well be a confrontation violation *62 if, as here, a defendant is denied pretrial access to information that would make possible effective cross-examination of a crucial prosecution witness.
The plurality recognizes that the Confrontation Clause confers upon a defendant a right to conduct cross-examination. Ante, at 51. It believes that this right is satisfied so long as defense counsel can question a witness on any proper subject of cross-examination. For the plurality, the existence of a confrontation violation turns on whether counsel has the opportunity to conduct such questioning; the plurality in effect dismisses or, at best, downplays any inquiry into the effectiveness of the cross-examination. Ante, at 51-52. Thus, the plurality confidently can state that the Confrontation Clause creates nothing more than a trial right. Ante, at 52.
If I were to accept the plurality's effort to divorce confrontation analysis from any examination into the effectiveness of cross-examination, I believe that in some situations the confrontation right would become an empty formality. As even the plurality seems to recognize, see ante, at 51-52, one of the primary purposes of cross-examination is to call into question a witness' credibility. This purpose is often met when defense counsel can demonstrate that the witness is biased or cannot clearly remember the events crucial to the testimony. The opportunity the Confrontation Clause gives a defendant's attorney to pursue any proper avenue of questioning a witness makes little sense set apart from the goals of cross-examination.
There are cases, perhaps most of them, where simple questioning of a witness will satisfy the purposes of cross-examination. Delaware v. Fensterer, 474 U. S. 15 (1985) (per curiam) is one such example. There the Court rejected a Confrontation Clause challenge brought on the ground that an expert witness for the prosecution could not remember the method by which he had determined that some hair of the victim, whom Fensterer was accused of killing, had been *63 forcibly removed. Although I did not join the summary reversal in Fensterer and would have given the case plenary consideration, see id., at 23, it is easy to see why cross-examination was effective there. The expert's credibility and conclusions were seriously undermined by a demonstration that he had forgotten the method he used in his analysis. Simple questioning provided such a demonstration, and was reinforced by the testimony of the defendant's own expert who could undermine the other expert's opinion. See id., at 20.[1]
There are other cases where, in contrast, simple questioning will not be able to undermine a witness' credibility and in fact may do actual injury to a defendant's position. Davis v. Alaska, 415 U. S. 308 (1974), is a specific example. There defense counsel had the juvenile record of a key prosecution witness in hand but was unable to refer to it during his cross-examination of the witness because of an Alaska rule prohibiting the admission of such a record in a court proceeding. id., at 310-311. The juvenile record revealed that the witness was on probation for the same burglary for which Davis was charged. Accordingly, the possibility existed that the witness was biased or prejudiced against Davis, in that he was attempting to turn towards Davis the attention of the police that would otherwise have been directed against him. *64 Although Davis' counsel was permitted to "question" the witness as to bias, any attempt to point to the reason for that bias was denied. Id., at 313-314.
In the Court's view, this questioning of the witness both was useless to Davis and actively harmed him. The Court observed: "On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a `rehash' of prior cross-examination." Id., at 318. The Court concluded that, without being able to refer to the witness' juvenile record, "[p]etitioner was thus denied the right of effective cross-examination." Ibid.
The similarities between Davis and this case are much greater than are any differences that may exist. In cross-examining a key prosecution witness, counsel for Davis and counsel for respondent were both limited to simple questioning. They could not refer to specific facts that might have established the critical bias of the witness: Davis' counsel could not do so because, while he had the juvenile record in hand, he could not refer to it in light of the Alaska rule, see id., at 311, n. 1; respondent's attorney had a similar problem because he had no access at all to the CYS file of the child-abuse victim, see ante, at 43-44, and n. 2. Moreover, it is likely that the reaction of each jury to the actual cross-examination was the same a sense that defense counsel was doing nothing more than harassing a blameless witness.
It is true that, in a technical sense, the situations of Davis and Ritchie are different. Davis' counsel had access to the juvenile record of the witness and could have used it but for the Alaska prohibition. Thus, the infringement upon Davis' confrontation right occurred at the trial stage when his counsel was unable to pursue an available line of inquiry. Respondent's attorney could not cross-examine his client's daughter with the help of the possible evidence in the CYS *65 file because of the Pennsylvania prohibition that affected his pretrial preparations. I do not believe, however, that a State can avoid Confrontation Clause problems simply by deciding to hinder the defendant's right to effective cross-examination, on the basis of a desire to protect the confidentiality interests of a particular class of individuals, at the pretrial, rather than at the trial, stage.
Despite my disagreement with the plurality's reading of the Confrontation Clause, I am able to concur in the Court's judgment because, in my view, the procedure the Court has set out for the lower court to follow on remand is adequate to address any confrontation problem. Here I part company with JUSTICE BRENNAN. Under the Court's prescribed procedure, the trial judge is directed to review the CYS file for "material" information. Ante, at 58. This information would certainly include such evidence as statements of the witness that might have been used to impeach her testimony by demonstrating any bias towards respondent or by revealing inconsistencies in her prior statements.[2] When reviewing confidential records in future cases, trial courts should be particularly aware of the possibility that impeachment evidence of a key prosecution witness could well constitute the sort whose unavailability to the defendant would undermine confidence in the outcome of the trial. As the Court points out, moreover, the trial court's obligation to review the confidential record for material information is ongoing. *66 Impeachment evidence is precisely the type of information that might be deemed to be material only well into the trial, as, for example, after the key witness has testified.[3]
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
I join JUSTICE STEVENS' dissenting opinion regarding the lack of finality in this case. I write separately to challenge the Court's narrow reading of the Confrontation Clause as applicable only to events that occur at trial. That interpretation ignores the fact that the right of cross-examination also may be significantly infringed by events occurring outside the trial itself, such as the wholesale denial of access to material that would serve as the basis for a significant line of inquiry at trial. In this case, the trial court properly viewed Ritchie's vague speculations that the agency file might contain something useful as an insufficient basis for permitting general access to the file. However, in denying access to the prior statements of the victim the court deprived Ritchie of material crucial to any effort to impeach the victim at trial. I view this deprivation as a violation of the Confrontation Clause.
This Court has made it plain that "a primary interest secured by [the Confrontation Clause] is the right of cross-examination," Douglas v. Alabama, 380 U. S. 415, 418 (1965). "[P]robably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case," Pointer v. Texas, 380 U. S. 400, 404 (1965). The Court therefore has scrupulously guarded against "restrictions imposed by law or by the trial court on the scope of *67 cross-examination." Delaware v. Fensterer, 474 U. S. 15, 18 (1985) (per curiam).
One way in which cross-examination may be restricted is through preclusion at trial itself of a line of inquiry that counsel seeks to pursue. See ante, at 53, n. 9 (citing cases). The logic of our concern for restriction on the ability to engage in cross-examination does not suggest, however, that the Confrontation Clause prohibits only such limitations.[*] A crucial avenue of cross-examination also may be foreclosed by the denial of access to material that would serve as the basis for this examination. Where denial of access is complete, counsel is in no position to formulate a line of inquiry potentially grounded on the material sought. Thus, he or she cannot point to a specific subject of inquiry that has been foreclosed, as can a counsel whose interrogation at trial has been limited by the trial judge. Nonetheless, there occurs as effective a preclusion of a topic of cross-examination as if the judge at trial had ruled an entire area of questioning off limits.
*68 The Court has held that the right of cross-examination may be infringed even absent limitations on questioning imposed at trial. Jencks v. United States, 353 U. S. 657 (1957), held that the defendant was entitled to obtain the prior statements of persons to government agents when those persons testified against him at trial. Impeachment of the witnesses was "singularly important" to the defendant, we said, id., at 667, and the reports were essential to the impeachment effort. Thus, we held that a defendant is entitled to inspect material "with a view to use on cross-examination" when that material "[is] shown to relate to the testimony of the witness." Id., at 669. As I later noted in Palermo v. United States, 360 U. S. 343 (1959), Jencks was based on our supervisory authority rather than the Constitution, "but it would be idle to say that the commands of the Constitution were not close to the surface of the decision." 360 U. S., at 362-363 (BRENNAN, J., concurring in result). In Palermo, I specifically discussed the Confrontation Clause as a likely source of the rights implicated in a case such as Jencks. 360 U. S., at 362.
The Court insists that the prerequisite for finding a restriction on cross-examination is that counsel be prevented from pursuing a specific line of questioning. This position has similarities to an argument the Court rejected in Jencks. The Government contended in that case that the prerequisite for obtaining access to witnesses' prior statements should be a showing by the defendant of an inconsistency between those statements and trial testimony. We rejected that argument, noting, "[t]he occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, . . . the accused is helpless to know or discover conflict without inspecting the reports." 353 U. S., at 667-668. Cf. United States v. Burr, 25 F. Cas. 187, 191 (No. 14,694) (CC Va. 1807) ("It is objected that the particular passages of the letter which are required are not pointed out. But how can this be done while the letter itself is witheld?"). Similarly, *69 unless counsel has access to prior statements of a witness, he or she cannot identify what subjects of inquiry have been foreclosed from exploration at trial. Under the Court's holding today, the result is that partial denials of access may give rise to Confrontation Clause violations, but absolute denials cannot.
The Court in United States v. Wade, 388 U. S. 218 (1967), also recognized that pretrial events may undercut the right of cross-examination. In Wade, we held that a pretrial identification lineup was a critical stage of criminal proceedings at which the Sixth Amendment right to counsel was applicable. This holding was premised explicitly on concern for infringement of Confrontation Clause rights. The presence of counsel at a lineup is necessary, the Court said, "to preserve the defendant's right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself." Id., at 227. If counsel is excluded from such a proceeding, he or she is at a serious disadvantage in calling into question an identification at trial. The "inability effectively to reconstruct at trial any unfairness that occurred at the lineup" may then "deprive [the defendant] of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." Id., at 232. The Court continued:
"Insofar as the accused's conviction may rest on a court-room identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400." Id., at 235 (emphasis added).
Since a lineup from which counsel is absent is potentially prejudicial, and "since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial", id., at 236 (emphasis added) (footnote omitted), the *70 Court in Wade concluded that a pretrial lineup is a stage of prosecution at which a defendant is entitled to have counsel present.
The exclusion of counsel from the lineup session necessarily prevents him or her from posing any specific cross-examination questions based on observation of how the lineup was conducted. The Court today indicates that this inability would preclude a finding that cross-examination has been restricted. The premise of the Court in Wade, however, was precisely the opposite: the very problem that concerned the Court was that counsel would be foreclosed from developing a line of inquiry grounded on actual experience with the lineup.
The Court suggests that the court below erred in relying on Davis v. Alaska, 415 U. S. 308 (1974), for its conclusion that the denial of access to the agency file raised a Confrontation Clause issue. While Davis focused most explicitly on the restriction at trial of cross-examination, nothing in the opinion indicated that an infringement on the right to cross-examination could occur only in that context. Defense counsel was prevented from revealing to the jury that the government's witness was on probation. The immediate barrier to revelation was the trial judge's preclusion of counsel's effort to inquire into the subject on cross-examination. Yet the reason that counsel could not make such inquiry was a state statute that made evidence of juvenile adjudications inadmissible in court. Any counsel familiar with the statute would have no doubt that it foreclosed any line of questioning pertaining to a witness' juvenile record, despite the obvious relevance of such information for impeachment purposes. The foreclosure would have been just as effective had defense counsel never sought to pursue on cross-examination the issue of the witness' probationary status. The lower court thus properly recognized that the underlying problem for defense counsel in Davis was the prohibition on disclosure of juvenile records.
*71 The creation of a significant impediment to the conduct of cross-examination thus undercuts the protections of the Confrontation Clause, even if that impediment is not erected at the trial itself. In this case, the foreclosure of access to prior statements of the testifying victim deprived the defendant of material crucial to the conduct of cross-examination. As we noted in Jencks, a witness' prior statements are essential to any effort at impeachment:
"Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony." 353 U. S., at 667.
The right of a defendant to confront an accuser is intended fundamentally to provide an opportunity to subject accusations to critical scrutiny. See Ohio v. Roberts, 448 U. S. 56, 65 (1980) ("underlying purpose" of Confrontation Clause is "to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence"). Essential to testing a witness' account of events is the ability to compare that version with other versions the witness has earlier recounted. Denial of access to a witness' prior statements thus imposes a handicap that strikes at the heart of cross-examination.
The ability to obtain material information through reliance on a due process claim will not in all cases nullify the damage of the Court's overly restrictive reading of the Confrontation Clause. As the Court notes, ante, at 57, evidence is regarded as material only if there is a reasonable probability that it might affect the outcome of the proceeding. Prior *72 statements on their face may not appear to have such force, since their utility may lie in their more subtle potential for diminishing the credibility of a witness. The prospect that these statements will not be regarded as material is enhanced by the fact that due process analysis requires that information be evaluated by the trial judge, not defense counsel. Ante, at 59-60. By contrast, Jencks, informed by confrontation and cross-examination concerns, insisted that defense counsel, not the court, perform such an evaluation, "[b]ecause only the defense is adequately equipped to determine the effective use for the purpose of discrediting the Government's witness and thereby furthering the accused's defense." Jencks, supra, at 668-669. Therefore, while Confrontation Clause and due process analysis may in some cases be congruent, the Confrontation Clause has independent significance in protecting against infringements on the right to cross-examination.
The Court today adopts an interpretation of the Confrontation Clause unwarranted by previous case law and inconsistent with the underlying values of that constitutional provision. I therefore dissent.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE SCALIA join, dissenting.
We are a Court of limited jurisdiction. One of the basic limits that Congress has imposed upon us is that we may only review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U. S. C. § 1257. The purposes of this restriction are obvious, and include notions of efficiency, judicial restraint, and federalism. See Construction Laborers v. Curry, 371 U. S. 542, 550 (1963); Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945). Over the years the Court has consistently applied a strict test of finality to determine the reviewability of state-court decisions remanding cases for further proceedings, and the reviewability of pretrial discovery orders. Given the plethora of such decisions and orders and *73 the fact that they often lead to the settlement or termination of litigation, the application of these strict rules has unquestionably resulted in this Court's not reviewing countless cases that otherwise might have been reviewed. Despite that consequence indeed, in my judgment, because of that consequence I regard the rule as wise and worthy of preservation.
I
In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), the Court recognized some limited exceptions to the general principle that this Court may not review cases in which further proceedings are anticipated in the state courts. One of these exceptions applies "where the federal claim has been finally decided, with further proceedings in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." Id., at 481. The concern, of course, is that the petitioning party not be put in a position where he might eventually lose on the merits, but would have never had an opportunity to present his federal claims for review. Ibid. The most common example of this phenomenon is where a State seeks review of an appellate court's order that evidence be suppressed. In such a case, if the State were forced to proceed to trial prior to seeking review in this Court, it could conceivably lose its case at trial, and, because of the double jeopardy rule, never have a chance to use what we might have held to be admissible evidence. See, e. g., New York v. Quarles, 467 U. S. 649, 651, n. 1 (1984).
This case does not fit into that exception. Were we to decline review at this time there are three possible scenarios on remand. First, the Children and Youth Services (CYS) might refuse to produce the documents under penalty of contempt, in which case appeals could be taken, and this Court could obtain proper jurisdiction. See United States v. Ryan, 402 U. S. 530 (1971). Alternatively, if CYS were to produce the documents, the trial court might find the error to be *74 harmless, in which case Ritchie's conviction would stand and the Commonwealth would not have been harmed by our having declined to review the case at this stage. Finally, the trial court could determine that Ritchie's lack of access to the documents was constitutionally prejudicial, and thus order a new trial. If the Commonwealth would then have no recourse but to proceed to trial with the risk of an unreviewable acquittal, I agree that the Cox exception would apply. Under Pennsylvania law, however, the Commonwealth would have the opportunity for an immediate interlocutory appeal of the new trial order.
Pennsylvania Rule of Appellate Procedure 311(a)(5) affords the Commonwealth a right to an interlocutory appeal in criminal cases where it "claims that the lower court committed an error of law." An argument that the trial court erred in evaluating the constitutionally harmless-error issue would certainly qualify under that provision.[1] Moreover, the Commonwealth could, if necessary, reassert the constitutional arguments that it now makes here. Although the claims would undoubtedly be rejected in Pennsylvania under the law-of-the-case doctrine, that would not bar this Court from reviewing the claims. See Barclay v. Florida, 463 U. S. 939, 946 (1983); Hathorn v. Lovorn, 457 U. S. 255, 261-262 (1982); see *75 generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 132 (6th ed. 1986).
The fact that the Commonwealth of Pennsylvania cannot irrevocably lose this case on the federal constitutional issue without having an opportunity to present that issue to this Court takes this case out of the Cox exception that the Court relies upon. Nonetheless, the Court makes the astonishing argument that we should hear this case now because if Ritchie's conviction is reinstated on remand, "the issue of whether defense counsel should have been given access will be moot," and the Court will lose its chance to pass on this constitutional issue. Ante, at 48. This argument is wholly contrary to our long tradition of avoiding, not reaching out to decide, constitutional decisions when a case may be disposed of on other grounds for legitimate reasons. See Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring); Rescue Army v. Municipal Court, 331 U. S. 549, 571 (1947). Indeed, the Court has explained that it is precisely the policy against unnecessary constitutional adjudication that demands strict application of the finality requirement. Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 70-71 (1948).
II
The Court also suggests that a reason for hearing the case now is that, if CYS is forced to disclose the documents, the confidentiality will be breached and subsequent review will be too late. Ante, at 48-49, and n. 7. This argument fails in light of the longstanding rule that if disclosure will, in and of itself, be harmful, the remedy is for the individual to decline to produce the documents, and immediately appeal any contempt order that is issued. This rule is exemplified by our decision in United States v. Ryan, 402 U. S. 530 (1971), a case in which a District Court denied a motion to quash a subpoena duces tecum commanding the respondent to produce certain documents located in Kenya. The Court of Appeals held that the order was appealable but we reversed, explaining:
*76 "Respondent asserts no challenge to the continued validity of our holding in Cobbledick v. United States, 309 U. S. 323 (1940), that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey. Respondent, however, argues that Cobbledick does not apply in the circumstances before us because, he asserts, unless immediate review of the District Court's order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be `powerless to avert the mischief of the order.' Perlman v. United States, 247 U. S. 7, 13 (1918).
"We think that respondent's assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order to comply. But compliance is not the only course open to respondent. If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906); cf. United States v. Blue, 384 U. S. 251 (1966); DiBella *77 v. United States, 369 U. S. 121 (1962); Carroll v. United States, 354 U. S. 394 (1957). Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims have we allowed exceptions to this principle." Id., at 532-533.
In the case before us today, the Pennsylvania Supreme Court has instructed the trial court to order CYS to produce certain documents for inspection by the trial court and respondent's counsel. Although compliance with the order might be burdensome for a different reason than the burden of obtaining documents in Kenya, the burden of disclosure is sufficiently troublesome to CYS that it apparently objects to compliance.[2] But as was true in the Ryan case, it has not yet been given the chance to decide whether to comply with the order and therefore has not satisfied the condition for appellate review that we had, until today, consistently imposed.[3]
*78 III
Finally, the Court seems to rest on the rationale that because this respondent has already been tried, immediate review in this particular case will expedite the termination of the litigation. See ante, at 48-49, n. 7. I am not persuaded that this is so if we had not granted certiorari, the trial court might have reviewed the documents and found that they are harmless a year ago but even if it were, the efficient enforcement of the finality rule precludes a case-by-case inquiry to determine whether its application is appropriate. Only by adhering to our firm rules of finality can we discourage time-consuming piecemeal litigation.
Of course, once the case is here and has been heard, there is natural reluctance to hold that the Court lacks jurisdiction. It is misguided, however, to strain and find jurisdiction in the name of short-term efficiency when the long-term effect of the relaxation of the finality requirement will so clearly be inefficient. If the Court's goal is expediting the termination of litigation, the worst thing it can do is to extend an open-ended invitation to litigants to interrupt state proceedings with interlocutory visits to this Court.
I would therefore dismiss the writ because the judgment of the Supreme Court of Pennsylvania is not final.
NOTES
[*] Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold Overoye, Assistant Attorney General, Joel Carey, Supervising Deputy Attorney General, and Karen Ziskind, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Corinne Watanabe, Acting Attorney General of Hawaii, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, David Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, Michael Greely of Montana, Stephen E. Merrill of New Hampshire, Lacy H. Thornburg of North Carolina, Mike Turpen of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Mike Cody of Tennessee, David L. Wilkinson of Utah, Jeffrey L. Amestoy of Vermont, William A. Broadus of Virginia, Kenneth O. Eikenberry of Washington, Charlie Brown of West Virginia, and Archie G. McClintock of Wyoming; for the County of Allegheny, Pennsylvania, on behalf of Allegheny County Children and Youth Services by George M. Janocsko and Robert L. McTiernan; for the Appellate Committee of the District Attorneys Association of California by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski; for the Pennsylvania Coalition Against Rape et al. by Nancy D. Wasser; and for the Sunny von Bulow National Victim Advocacy Center, Inc., et al. by Frank Gamble Carrington, Jr., David Crump, and Ann M. Haralambie.
[1] Although the 1978 investigation took place during the period that the daughter claimed she was being molested, it is undisputed that the daughter did not tell CYS about the assaults at that time. No criminal charges were filed as a result of this earlier investigation.
[2] The statute provides in part:
"(a) Except as provided in section 14 [Pa. Stat. Ann., Tit. 11, § 2214 (Purdon Supp. 1986)], reports made pursuant to this act including but not limited to report summaries of child abuse . . . and written reports . . . as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the department, a county children and youth social service agency or a child protective service shall be confidential and shall only be made available to:
.....
"(5) A court of competent jurisdiction pursuant to a court order." Pa. Stat. Ann., Tit. 11, § 2215(a) (Purdon Supp. 1986).
At the time of trial the statute only provided five exceptions to the general rule of confidentiality, including the exception for court-ordered disclosure. The statute was amended in 1982 to increase the number of exceptions. For example, the records now may be revealed to law enforcement officials for use in criminal investigations. § 2215(a)(9). But, the identity of a person who reported the abuse or who cooperated in the investigation may not be released if the disclosure would be detrimental to that person's safety. § 2215(c).
[3] The trial judge stated that he did not read "50 pages or more of an extensive record." App. 72a. The judge had no knowledge of the case before the pretrial hearing. See id., at 68a.
[4] There is no suggestion that the Commonwealth's prosecutor was given access to the file at any point in the proceedings, or that he was aware of its contents.
[5] The Sixth Amendment of the United States Constitution protects both the right of confrontation and the right of compulsory process:
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor."
Both Clauses are made obligatory on the States by the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400, 403-406 (1965) (Confrontation Clause); Washington v. Texas, 388 U. S. 14, 17-19 (1967) (Compulsory Process Clause).
[6] The court noted that the trial court should take "appropriate steps" to guard against improper dissemination of the confidential material, including, for example, "fashioning of appropriate protective orders, or conducting certain proceedings in camera." 509 Pa., at 368, n. 16, 502 A. 2d, at 153, n. 16. These steps were to be taken, however, subject to "the right of [Ritchie], through his counsel, to gain access to the information." Ibid.
[7] As JUSTICE STEVENS' dissent points out, post, at 74, there is a third possibility. If the trial court finds prejudicial error and orders a retrial, the Commonwealth may attempt to take an immediate appeal of this order. See Pa. Rule App. Proc. 311(a). JUSTICE STEVENS' dissent suggests that because the Commonwealth can raise the Sixth Amendment issue again in this appeal, respect for the finality doctrine should lead us to dismiss. But even if we were persuaded that an immediate appeal would lie in this situation, it would not necessarily follow that the constitutional issue will survive. The appellate court could find that the failure to disclose was harmless, precluding further review by the Commonwealth. Alternatively, the appellate court could agree that the error was prejudicial, thus permitting the Commonwealth to claim that the Sixth Amendment does not compel disclosure. But as JUSTICE STEVENS' dissent recognizes, the Pennsylvania courts already have considered and resolved this issue in their earlier proceedings; if the Commonwealth were to raise it again in a new set of appeals, the courts below would simply reject the claim under the law-of-the-case doctrine. Law-of-the-case principles are not a bar to this Court's jurisdiction, of course, and thus JUSTICE STEVENS' dissent apparently would require the Commonwealth to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us.
The goals of finality would be frustrated, rather than furthered, by these wasteful and time-consuming procedures. Based on the unusual facts of this case, the justifications for the finality doctrine efficiency, judicial restraint, and federalism, see Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945); post, at 72 would be ill served by another round of litigation on an issue that has been authoritatively decided by the highest state court.
[8] Nothing in our decision in United States v. Ryan, 402 U. S. 530 (1971), requires a different result. In that case the respondent was served with a subpoena requiring him to produce business records for a grand jury. The District Court denied a motion to quash, and respondent appealed. We concluded that the District Court order was not appealable. Id., at 532. We rejected the contention that immediate review was necessary to avoid the harm of disclosing otherwise protected material, noting that parties who face such an order have the option of making the decision "final" simply by refusing to comply with the subpoena.
Although there are similarities between this case and Ryan, the analogy is incomplete. In Ryan the Court was concerned about the "necessity for expedition in the administration of the criminal law," id., at 533, an interest that would be undermined if all pretrial orders were immediately appealable. Ryan also rests on an implicit assumption that unless a party resisting discovery is willing to risk being held in contempt, the significance of his claim is insufficient to justify interrupting the ongoing proceedings. That is not the situation before us. Here the trial already has taken place, and the issue reviewed by the Commonwealth appellate courts. The interests of judicial economy and the avoidance of delay, rather than being hindered, would be best served by resolving the issue. Cf. Cox Broadcasting Corp. v. Cohn, 420 U. S., 469, 477-478 (1975) (exceptions to finality doctrine justified in part by need to avoid economic waste and judicial delay).
We also reject Ritchie's suggestion that we should dismiss this action and allow the case to return to the trial court, so that the Commonwealth can formally refuse to comply with the Pennsylvania Supreme Court decision and be held in contempt. Here we are not faced merely with an individual's assertion that a subpoena is unduly burdensome, but with a holding of a State Supreme Court that the legislative interest in confidentiality will not be given effect. The Commonwealth's interest in immediate review of this case is obvious and substantial. Contrary to JUSTICE STEVENS' dissent, we do not think that the finality doctrine requires a new round of litigation and appellate review simply to give the Commonwealth "the chance to decide whether to comply with the order." Post, at 77. See n. 7, supra. To prolong the proceedings on this basis would be inconsistent with the "pragmatic" approach we normally have taken to finality questions. See generally Bradley v. Richmond School Bd., 416 U. S. 696, 722-723, n. 28 (1974) ("This Court has been inclined to follow a `pragmatic approach' to the question of finality") (citation omitted).
[9] This is not to suggest, of course, that there are no protections for pretrial discovery in criminal cases. See discussion in Part III-B, infra. We simply hold that with respect to this issue, the Confrontation Clause only protects a defendant's trial rights, and does not compel the pretrial production of information that might be useful in preparing for trial. Also, we hardly need say that nothing in our opinion today is intended to alter a trial judge's traditional power to control the scope of cross-examination by prohibiting questions that are prejudicial, irrelevant, or otherwise improper. See Delaware v. Van Arsdall, 475 U. S. 673, 678 (1986).
[10] See, e. g., Delaware v. Van Arsdall, supra (denial of right to cross-examine to show bias); Davis v. Alaska, 415 U. S. 308 (1974); Chambers v. Mississippi, 410 U. S. 284 (1973) (denial of right to impeach own witness); Smith v. Illinois, 390 U. S. 129 (1968) (denial of right to ask witness' real name and address at trial); Douglas v. Alabama, 380 U. S. 415 (1965) (denial of right to cross-examine codefendant). Moreover, the Court normally has refused to find a Sixth Amendment violation when the asserted interference with cross-examination did not occur at trial. Compare McCray v. Illinois, 386 U. S. 300, 311-313 (1967) (no Confrontation Clause violation where defendant was denied the chance to discover an informant's name at pretrial hearing), with Roviaro v. United States, 353 U. S. 53 (1957) (on the facts presented, Government required to disclose informant's name at trial). See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 125-126 (1974) ("The right of confrontation is exclusively a `trial right' . . . . It does not . . . require the government to produce witnesses whose statements are not used at trial, or to produce the underlying information on which its witnesses base their testimony") (footnotes omitted) (hereinafter Westen).
[11] The evidence consisted of a letter that was sent to President Jefferson by General James Wilkinson that allegedly showed that Burr was planning to invade Mexico and set up a separate government under his control. After being ordered to do so, Jefferson eventually turned over an edited version of the letter. For an excellent summary of the Burr case and its implications for compulsory process, see Westen 101-108.
[12] The pre-1967 cases that mention compulsory process do not provide an extensive analysis of the Clause. See Pate v. Robinson, 383 U. S. 375, 378, n. 1 (1966); Blackmer v. United States, 284 U. S. 421, 442 (1932); United States v. Van Duzee, 140 U. S. 169, 173 (1891); Ex parte Harding, 120 U. S. 782 (1887). See generally Westen 108, and n. 164.
[13] See, e. g., Chambers v. Mississippi, supra; Cool v. United States, 409 U. S. 100 (1972) (per curiam); Washington v. Texas, 388 U. S. 14 (1967). Cf. Webb v. Texas, 409 U. S. 95 (1972) (per curiam) (decision based on Due Process Clause).
[14] We express no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel.
[15] The Commonwealth also argues that Ritchie is not entitled to disclosure because he did not make a particularized showing of what information he was seeking or how it would be material. See Brief for Petitioner 18 (quoting United States v. Agurs, 427 U. S. 97, 109-110 (1976) ("The mere possibility that an item of undisclosed information might have helped the defense . . . does not establish `materiality' in the constitutional sense")). Ritchie, of course, may not require the trial court to search through the CYS file without first establishing a basis for his claim that it contains material evidence. See United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982) ("He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense"). Although the obligation to disclose exculpatory material does not depend on the presence of a specific request, we note that the degree of specificity of Ritchie's request may have a bearing on the trial court's assessment on remand of the materiality of the nondisclosure. See United States v. Bagley, 473 U. S. 667, 682-683 (1985) (opinion of BLACKMUN, J.).
[16] See Fed. Rule Crim. Proc. 16(d)(2); Pa. Rule Crim. Proc. 305(E) ("If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule [mandating disclosure of exculpatory evidence], the court may . . . enter such . . . order as it deems just under the circumstances").
[17] The importance of the public interest at issue in this case is evidenced by the fact that all 50 States and the District of Columbia have statutes that protect the confidentiality of their official records concerning child abuse. See Brief for State of California ex rel. John K. Van de Kamp et al. as Amici Curiae 12, n. 1 (listing illustrative statutes). See also Besharov, The Legal Aspects of Reporting Known and Suspected Child Abuse and Neglect, 23 Vill. L. Rev. 458, 508-512 (1978).
[1] Accordingly, the remark from Delaware v. Fensterer, which the plurality would use, ante, at 53, as support for its argument that confrontation analysis has little to do with inquiries concerning the effectiveness of cross-examination, actually suggests the opposite. The Court observed in Fensterer that "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." 474 U. S., at 20 (emphasis in original). This remark does not imply that concern about such effectiveness has no place in analysis under the Confrontation Clause. Rather, it means that when, as in Fensterer, simple questioning serves the purpose of cross-examination, a defendant cannot claim a confrontation violation because there might have been a more effective means of cross-examination.
[2] In United States v. Bagley, 473 U. S. 667 (1985), the Court rejected any distinction between exculpatory and impeachment evidence for purposes of Brady v. Maryland, 373 U. S. 83 (1963). 473 U. S., at 676. We noted that nondisclosure of impeachment evidence falls within the general rule of Brady "[w]hen the `reliability of a given witness may well be determinative of guilt or innocence.' " Id., at 677, quoting Giglio v. United States, 405 U. S. 150, 154 (1972). We observed moreover, that, while a restriction on pretrial discovery might not suggest as direct a violation on the confrontation right as would a restriction on the scope of cross-examination at trial, the former was not free from confrontation concerns. 473 U. S., at 678.
[3] If the withholding of confidential material from the defendant at the pretrial stage is deemed a Confrontation Clause violation, harmless-error analysis, of course, may still be applied. See Delaware v. Van Arsdall, 475 U. S. 673, 684 (1986).
[*] The Court contends that its restrictive view is supported by statements in California v. Green, 399 U. S. 149, 157 (1970), and Barber v. Page, 390 U. S. 719, 725 (1968), that the right to confrontation is essentially a trial right. Neither statement, however was intended to address the question whether Confrontation Clause rights may be implicated by events outside of trial. In Green, the Court held that it was permissible to introduce at trial the out-of-court statements of a witness available for cross-examination. The Court rejected the argument that the Confrontation Clause precluded the admission of all hearsay evidence, because the ability of the defendant to confront and cross-examine the witness at trial satisfied the concerns of that Clause. 399 U. S., at 157. In Barber, the Court held that, where a witness could be called to testify, the failure to do so was not excused by the fact that defense counsel had an opportunity to cross-examine the witness at a preliminary hearing. The Court held that, since the Confrontation Clause is concerned with providing an opportunity for cross-examination at trial, the failure to afford such an opportunity when it was clearly available violated that Clause. Thus, neither Green nor Barber suggested that the right of confrontation attached exclusively at trial.
[1] See Commonwealth v. Blevins, 453 Pa. 481, 482-483, 309 A. 2d 421, 422 (1973) (whether "the testimony offered at trial by the Commonwealth was insufficient to support the jury's finding" is appealable issue of law); Commonwealth v. Melton, 402 Pa. 628, 629, 168 A. 2d 328, 329 (1961) (citing case "where a new trial is granted to a convicted defendant on the sole ground that the introduction of certain evidence at his trial was prejudicial error" as example of appealable issue of law); Commonwealth v. Durah-El, 344 Pa. Super. 511, 514, n. 2, 496 A. 2d 1222, 1224, n. 2 (1985) (whether trial counsel provided ineffective assistance of counsel is appealable as asserted "error of law"); Commonwealth v. Carney, 310 Pa. Super. 549, 551, n. 1, 456 A. 2d 1072, 1073, n. 1 (1983) (whether curative instruction was sufficient to remedy improper remark of prosecution witness is appealable as asserted "error of law").
[2] It is not clear to what extent counsel for the Commonwealth in this case represents CYS, or whether he only represents the Office of the District Attorney of Allegheny County. CYS is certainly not a party to this case; in fact it has filed an amicus curiae brief expressing its views. That CYS is not a party to the case makes it all the more inappropriate for the Court to relax the rule of finality in order to spare CYS the need to appeal a contempt order if it fails to produce the documents.
[3] The Court has recognized a limited exception to this principle where the documents at issue are in the hands of a third party who has no independent interest in preserving their confidentiality. See Perlman v. United States, 247 U. S. 7 (1918); see also United States v. Ryan, 402 U. S. 530, 533 (1971). This case presents a far different situation. As far as the disclosure of the documents goes, it is CYS, not the prosecutor, that claims a duty to preserve their confidentiality and to implement Pennsylvania's Child Protective Services Law. See Brief for Allegheny County, Pennsylvania, on behalf of Allegheny County Children and Youth Services as Amicus Curiae in Support of Petitioner 2.
Nor does this case come within the exception of United States v. Nixon, 418 U. S. 683, 691-692 (1974), where the Court did not require the President of the United States to subject himself to contempt in order to appeal the District Court's rejection of his assertion of executive privilege. As Judge Friendly explained, the rationale of that decision is unique to the Presidency and is "wholly inapplicable" to other government agents. See National Super Suds, Inc. v. New York Mercantile Exchange, 591 F. 2d 174, 177 (CA2 1979); see also Newton v. National Broadcasting Co., 726 F. 2d 591 (CA9 1984); United States v. Winner, 641 F. 2d 825, 830 (CA10 1981); In re Attorney General of the United States, 596 F. 2d 58, 62 (CA2), cert. denied, 444 U. S. 903 (1979); but see In re Grand Jury Proceedings (Wright II), 654 F. 2d 268, 270 (CA3), cert. denied, 454 U. S. 1098 (1981); Branch v. Phillips Petroleum Co., 638 F. 2d 873, 877-879 (CA5 1981).
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23 F.Supp.2d 1220 (1998)
Terry WEST, individually and as guardian of T.W., and T.W., a minor, Plaintiffs,
v.
DERBY UNIFIED SCHOOL DISTRICT # 260, Defendant.
No. 98-1163-WEB.
United States District Court, D. Kansas.
May 21, 1998.
Jason M. Sneed, Lathrop & Gage L.C., Overland Park, KS, for Terry West, plaintiff.
M. Kathryn Webb, Shari Renee Lyne Willis, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, KS, Jeff L. Griffith, Jerry L. Griffith, Griffith & Griffith, Derby, KS, for Unified School District 260, defendant.
William P. Tretbar, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Wichita Eagle and Beacon Publishing Company, Julie Mah, movants.
Memorandum and Order
WESLEY E. BROWN, Senior District Judge.
This matter came before the court on May 18, 1998, for a ruling on plaintiffs' motion for a temporary restraining order. (Doc. 3). The court orally denied the request for TRO at a hearing on May 18th and scheduled an evidentiary hearing on plaintiffs' request for a preliminary injunction. This written memorandum will supplement the court's previous oral ruling on the motion for TRO. It will *1221 also supplement the court's oral ruling granting plaintiffs' motion for continuance filed May 19, 1998.
Background.
This case was initiated on May 13, 1998, by the filing of a complaint by plaintiffs Terry West and T.W., a minor. According to the complaint, plaintiff T.W. is a seventh-grade student in the Derby Middle School, a school operated by the defendant Derby Unified School District # 260. The dispute concerns the District's "Racial Harassment or Intimidation" policy, which was adopted by the Board of Education of USD 260, and which applies to all students in the district. The policy provides in part:
Student(s) shall not racially harass or intimidate another student(s) by name calling, using racial or derogatory slurs, wearing or possessing items depicting or implying racial hatred or prejudice. Students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other "hate" group. This list is not intended to be all inclusive.)
According to the complaint, on April 14, 1998, at the request of a classmate during his math class at Derby Middle School, T.W. drew a small picture of a Confederate flag on the back of a piece of paper belonging to T.W. Plaintiff alleges that T.W. did not show the picture to anyone except the student who had requested that he draw it. Plaintiff further alleges that T.W. did not use the picture to harass or intimidate anyone. According to the complaint, the classmate took the drawing from T.W. and gave it to the math instructor, who later that day gave it to a school administrator.
The next day, T.W. was called into the office of Brad Kerns, the assistant principal, to discuss the picture. In that meeting, Kerns allegedly informed T.W. that he had violated the district's Racial Harassment or Intimidation policy. T.W. was then suspended from school for the rest of that day and the following three school days.
Plaintiffs allege that neither T.W. nor his parents were given written notice of a hearing by the District to dispute or discuss the charges against him, and that no formal hearing was held.
Plaintiffs allege that T.W.'s possession of the picture did not in any way substantially disrupt or interfere with the operation of the school.
Plaintiffs further allege that the defendant subsequently issued a press release that improperly disclosed educational information relating to T.W.
The complaint claims the defendant's actions deprived the plaintiffs of the following rights: the right to free speech under the First and Fourteenth Amendments to the Constitution; the right to equal protection of the laws as guaranteed by the Fifth and Fourteenth Amendments; the right not to be deprived of property without due process of law as guaranteed by the Fifth and Fourteenth Amendments; and the rights granted by the Family Educational Rights and Privacy Act of 1974.
The relief requested in the complaint includes the following: a declaration of the rights of the parties; an injunction of defendant's alleged interference with plaintiffs' right of free speech; an injunction prohibiting the defendant from enforcing its Racial Harassment policy or any policy interfering with plaintiffs' right to free speech; an injunction removing from T.W.'s school records any reference to the incident; and costs and attorneys fees.
Motion for TRO and Preliminary Injunction.
Plaintiffs' motion for a temporary restraining order and preliminary injunction sought an order from the court preventing the defendant from enforcing its Racial Harassment or Intimidation policy or any policy interfering with plaintiffs' right to free speech.
A temporary restraining order is an emergency remedy which may only issue in exceptional circumstances and only until *1222 the court can hear arguments or evidence on the subject matter of the controversy. A preliminary injunction is an order issued after notice and hearing which restrains a party pending a trial on the merits. Each of these "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 1867, 138 L.Ed.2d 162 (1997).
In order to obtain a temporary restraining order or a preliminary injunction, the plaintiff must establish: (1) that he will suffer an irreparable injury absent an injunction; (2) that the threatened injury outweighs the harm an injunction may cause the opposing party; (3) that an injunction would not be adverse to the public interest; and (4) that he is substantially likely to prevail on the merits. State of Utah v. Babbitt, 137 F.3d 1193, 1200 n. 7 (10th Cir.1998). If the movant has satisfied the first three requirements, he may establish the "likelihood of success" requirement by showing there are questions going to the merits so serious or doubtful as to make the issues ripe for litigation and deserving of more deliberate investigation. Walmer v. U.S. Dept. of Defense, 52 F.3d 851, 854 (10th Cir.1995).
The court finds that the application for a temporary restraining order should be denied. In the materials presented to the court, no persuasive showing has been made that plaintiff will suffer irreparable harm if an immediate injunction is not granted. Furthermore, plaintiff has failed to show that the threatened injury to him outweighs the harm an injunction may cause the opposing party. The potential for harm to the school district from being unable to enforce its racial harassment policy outweighs the potential for harm to the plaintiff from having to wait for a ruling by the court on whether the current policy is constitutional and whether T.W.'s rights were violated. In this regard, the court notes that T.W.'s suspension has already been served and there is no real threat of imminent harm to him if an injunction is not immediately granted. The court can determine the appropriateness of any injunctive relief after the evidence is presented and the facts are determined.
Plaintiffs' Motion for Continuance.
As the parties are aware, the court previously scheduled an evidentiary hearing for May 20, 1998, to determine plaintiffs' request for a preliminary injunction. On May 19, 1998, plaintiffs filed by fax a motion for continuance of this hearing. Among other things, plaintiffs cited a need for more time to address issues raised in defendant's response to the motion. The court discussed these issues with counsel for the parties during a conference call on May 19, 1998.
Under the circumstances, the court granted plaintiffs' motion for a continuance of the hearing. By agreement of the parties, the plaintiffs' request for preliminary injunction will be consolidated with their request for permanent injunction, and all issues raised by the complaint will now be set for trial on the merits to begin on July 21, 1998, at 9:30 a.m.
Counsel for the parties are directed to confer with one another and to submit a proposed Pretrial Order to the court by June 5, 1998.
Conclusion.
Plaintiffs' Motion for a Temporary Restraining Order is DENIED. Plaintiffs' Motion for Continuance of the Preliminary Injunction Hearing is GRANTED. Plaintiffs' Motion for Preliminary Injunction is hereby consolidated with their claims for permanent injunction and other relief, and is set for trial to the court on July 21, 1998, at 9:30 a.m.
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757 F.Supp.2d 473 (2010)
Alanda FORREST, Plaintiff,
v.
Jon S. CORZINE, et al., Defendant.
Civil No. 09-1555 (JBS/JS).
United States District Court, D. New Jersey.
November 9, 2010.
*474 Paul R. Melletz, Begelman Orlow & Melletz, Cherry Hill, NJ, for Plaintiff.
Samuel J. Myles, Holston, MacDonald, Uzdavinis & Ziegler, PC, Woodbury, NJ, for Defendant.
OPINION AND ORDER[1]
JOEL SCHNEIDER, United States Magistrate Judge.
The issue before the Court is whether to grant the City of Camden's ("Camden") motion to stay all or a portion of the case pending the completion of an ongoing criminal investigation and prosecution of five (5) Camden police officers. For the reasons to be discussed Camden's motion is DENIED.[2]
Background
This action stems from alleged police misconduct involving two (2) Camden police *475 officers.[3] Plaintiff Alanda Forrest ("Forrest") filed his pro se complaint on April 2, 2009. Forrest subsequently retained an attorney who filed a third amended complaint ("complaint") on April 9, 2010. Forrest alleges that on July 1, 2008 Camden Police Officers Kevin Parry ("Parry") and Jason Stetser ("Stetser") planted drugs and beat him up. He contends that Parry and Stetser then "falsely made a statement that [plaintiff] . . . resisted arrest by going into a fighting position and that he had drugs in his possession." Complaint ¶ 11. Forrest alleges that Parry, Stetser and John Does conspired between May 2007 and October 28, 2009 to violate the constitutional rights of New Jersey citizens by planting evidence, intentionally using unreasonable force, falsifying police reports and testifying falsely under oath. Id. ¶¶ 42-43. Forrest also contends that Parry lied under oath to a Camden County Grand Jury to conceal his actions. Id. ¶ 44. Forrest contends that as a result of the false charges he was "convicted and sentenced to jail for three years and served time in jail from July 1, 2008 to January 6, 2010 when [he] was released and the conviction vacated." Id. ¶ 46.
As to Camden, Forrest alleges it "failed to properly train and/or supervise the police officer defendants in the justification for and use of force." Id. ¶ 31. He also alleges that Camden was aware of the unjustified violent and/or aggressive actions of Parry and Stetser and encouraged, tolerated, and/or acquiesced to their unlawful/unconstitutional actions. Id. ¶¶ 31, 32. In addition, Forrest alleges that Camden was willfully indifferent to its police officers' illegal actions. He contends that Camden should have been aware of Parry and Stetser's illegal conspiracy and stopped it before January 6, 2010. Id. ¶ 47.
When Camden filed its motion it asked to stay the entire case. In its Reply Brief ("RB") Camden limited its request to an "an order [to] be entered staying discovery in this matter with the limited exception of the Defendants' production of documents relative to (1) Monell issues; and (2) Supercession issues." RB at 3.[4]
Camden argues a stay is appropriate because it "is unable to communicate with the Police Department and Chief of Police regarding the core subject of this litigation." Brief at 5. According to Camden's attorney, "It is [his] understanding that [Police] Chief Thompson has been advised *476 by the United States Attorney's Office that he is not permitted to speak to anyone about any of the matters that are subject of the ongoing criminal investigationincluding the actions of the alleged officers involved, the criminal investigation itself, and the civil investigation that has resulted therefrom including, but not limited to, the instant matter." See Certification of Marc Riondino, Esq. ¶ 3 ("Riondino Cert."). Camden argues that due to this alleged instruction unless a stay is entered it "would be unable to construct a defense, gather appropriate evidence, and effectively communicate with [its] client and officers of the Police Department in order to effectively defend this litigation during the course of the criminal investigation." Brief at 5.[5] In response, plaintiff argues Camden does not have a right to block discovery and he will be prejudiced by a stay. Plaintiff further argues there is no due process right to stay a civil case when a related criminal case is pending.
Discussion
The stay of a civil proceeding is an extraordinary remedy and is not favored. Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F.Supp.2d 523, 526 (D.N.J.1998). However, a court has the discretion to stay a case if the interests of justice so require. U.S. v. Kordel, 397 U.S. 1, 12 n. 27, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). A stay of a civil case where there are pending criminal proceedings is not constitutionally required but may be warranted in certain circumstances. Id.; DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir.1970); see also Warner v. Kozub, No. 05-2871(JBS), 2007 WL 162766, at *3 (D.N.J. January 18, 2007) (staying case pending the outcome of the pro se plaintiff's criminal prosecution following plaintiff's invocation of his Fifth Amendment rights throughout discovery). Whether to stay a case "calls for the exercise of judgment which must weigh competing interests and maintain an even balance." Landis, 299 U.S. at 254-55, 57 S.Ct. 163.
Since Camden is asking the Court to order all but two discrete areas of discovery "off limits," the Court deems Camden's motion to ask for the entry of a protective order pursuant to Fed.R.Civ.P. 26(c). Pursuant to this Rule, the Court may limit, bar or stay discovery if the moving party establishes "good cause." Specifically, in accordance with Rule 26(c)(1)(B) the court may specify terms, including time and place, for discovery, and pursuant to Rule 26(c)(1)(D) the court may forbid inquiry into certain matters or limit the scope of discovery to certain matters. The Court finds that Camden has not demonstrated good cause to grant a complete or partial stay of discovery. In addition, the Court finds that Camden will not be materially prejudiced in the absence of a stay, but on the other hand, plaintiff will be prejudiced if Camden's motion is granted. Accordingly, Camden's motion will be denied.
The crux of Camden's argument is that its defense is prejudiced while the Camden police investigation and prosecution is ongoing. Camden's argument is rejected. Camden relies upon its in-house attorney's Certification that avers, "it is [his] understanding" that the United States Attorney's Office told its Chief of Police that "he is not permitted to speak to anyone about any of the matters that are subject of the *477 ongoing criminal investigation." See Riondino Cert., supra, ¶ 3.[6] However, even assuming the instruction was given, Camden did not cite any authority to the effect that it is bound by the U.S. Attorney's request or instruction. Nor has the City cited any authority barring the Court from compelling relevant discovery despite a contrary direction from the U.S. Attorney.
In addition, the Court notes that Camden is not the subject of a criminal investigation or prosecution. Thus, unlike the cases Camden relies upon to support its motion, Camden does not run the risk that it may waive its Fifth Amendment rights or expose itself to criminal liability because of its civil testimony. Further, Camden does not face a risk that its criminal defense strategy will be revealed in this civil case. The Court, therefore, does not find that Camden will be prejudiced if discovery takes its usual course.
To be sure, the Court is not unmindful of the interplay between the related civil and criminal proceedings. The problem with Camden's motion, however, is that it seeks to bar broad areas of relevant discovery when only a limited adjustment may be necessary. By way of example, if Camden's motion is granted plaintiff might be barred from obtaining copies of the official police reports regarding his arrest since Camden might argue the reports are not directly related to the Monell and supercession issues in the case. This result is plainly inappropriate.
Magistrate Judges are given wide discretion to manage cases and to limit discovery in appropriate circumstances. See V. Mane Fils S.A. v. Int'l Flavors & Fragrances Inc., No. 06-2304(FLW), 2008 WL 4606313 (D.N.J. Oct. 16, 2008); Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J.1998); Kresefky v. Panasonic Commc'ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996). See also Fed. R.Civ.P. 26(b)(2)(C) and 26(c). Thus, the Court may limit, delay or bar discovery directed to Camden if the discovery legitimately interferes with an ongoing criminal investigation and/or materially prejudices a party's interests. The Court can also stage discovery so that particularly sensitive issues are not immediately addressed. Whether and how to use the management tools available to the court requires a fact intensive analysis of numerous factors including, but not limited to, (1) the importance of the requested discovery to plaintiff and the ongoing criminal investigation, (2) whether the requested discovery is available from sources other than Camden, (3) whether the information will be available in the future or if there is a risk of loss or destruction of relevant evidence, and (4) the prejudice to the parties from limiting, delaying or barring discovery. The Court finds that if the parties dispute the appropriateness of a particular discovery request it is best to decide on an issue by issue or case by case basis whether the discovery should take place and when, and not simply to issue an Order barring all but two discrete subjects of discovery. A discovery stay should be no broader than necessary to protect Camden's interests. While a stay might be expedient, it is not the most fair and equitable manner of deciding whether discovery directed to Camden should be immediately answered. See Shim v. Kikkoman Int'l Corp., 509 F.Supp. 736, 740 (D.N.J.1981), aff'd, 673 F.2d 1304 (3d Cir.1981) ("the decision [to stay] is reached on a case-by-case basis, taking into account and weighing the totality of the circumstances of the particular case"); Gerald Chamales Corp. v. Oki *478 Data Americas, Inc., 247 F.R.D. 453, 456 (D.N.J.2007) (citations omitted) ("The power to stay a case calls for the exercise of judgment and the weighing of competing interests . . .").
Camden is not prejudiced by the Court's ruling since in appropriate circumstances plaintiff's discovery may be limited, delayed or barred. If Camden is legitimately barred from conducting its defense, or is materially prejudiced if it is required to participate in a particular aspect of discovery, the Court has the tools available to it to protect Camden's interests. On the other hand, if the Court grants Camden's request for a blanket stay of discovery directed to relevant subject areas, plaintiff will be prejudiced. Camden's requested stay will last indefinitely since no one can accurately predict when the ongoing police investigation and prosecution will end. The stay will undoubtedly serve to delay the ultimate resolution of what is expected to be a complex case. After plaintiff filed his lawsuit he had a right to expect an expeditious resolution. A stay of all or a portion of the case based merely on Camden's prediction that it may be prejudiced in its defense will impede this goal. See Worldcom Techs., Inc. v. Intelnet Int'l, Inc., No. 002284(JTG), 2002 WL 1971256, at *6 (E.D.Pa. Aug. 22, 2002) (citation omitted) ("motions to stay discovery are not favored because when discovery is delayed or prolonged it can create case management problems which impede the court's responsibility to expedite discovery and cause unnecessary litigation expenses and problems"). See also Golden Quality Ice Cream Co., Inc. v. Deerfield Speciality Papers, Inc., et al., 87 F.R.D. 53, 56 (E.D.Pa.1980) ("Any plaintiff in the Federal Courts enjoys the right to pursue his case and to vindicate his claim expeditiously"); In re Health Mgmt., Inc., No. 96-0889(ADS), 1999 WL 33594132, at *5 (E.D.N.Y. Sept. 15,1999) (citation omitted) ("The ability of courts to avoid undue delay is essential to assur[e] that justice for all litigants be neither delayed nor impaired").
The interests of justice demand that the case be managed to protect all parties' rights and to assure a reasonably prompt resolution. Plaintiff argues that his civil rights were violated by rogue former Camden police officers. The two officers named in this lawsuit have already pleaded guilty to the criminal violation of citizens' civil rights. Plaintiff is entitled to find out what happened to him and why.[7] In the absence of good cause or material prejudice to a party, plaintiff is entitled to his discovery sooner rather than later. Relevant discovery should not be barred based on the minimal record Camden has thus far produced that it may be prejudiced. The party seeking a stay "must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay . . . will work damage to someone else." Landis, 299 U.S. at 254, 57 S.Ct. 163. Camden has not satisfied this burden.
In support of its motion Camden relies upon Walsh Securities, Inc. v. Cristo Property Management, Ltd., 7 F.Supp.2d 523 (D.N.J.1998). That case identified several factors to examine to decide whether to grant a stay of a civil case pending the outcome of criminal proceedings: (1) the extent to which the issues in the criminal and civil case overlap; (2) the status of the case including whether the defendant has been indicted; (3) the plaintiff's interest in proceeding expeditiously weighed against the prejudice to plaintiff *479 caused by a delay; (4) the private interests of and burden on defendants; (5) the interests of the court; and (6) the public interest. Id. at 527-29. Although Walsh is not directly applicable to this case because the moving party, Camden, is not a party to a related criminal prosecution, an analysis of the Walsh factors still weighs in favor of denying Camden's motion.[8]
As to the first Walsh factor, although there is some overlap between this civil action and the ongoing criminal case, the overlap is not overwhelming. There are several significant issues to address in the case apart from the specific circumstances of plaintiff's arrest and prosecution. These include, but are not limited to, the Monell and supercession issues discussed herein. In addition, this case only involves one arrest while the criminal investigation presumably involves multiple incidents. The first Walsh factor weighs slightly in plaintiff's favor. As to the second Walsh factor, normally the fact that indictments have been issued favors a stay. Id. at 527. However, since the named police officers in the case have already pled guilty, the specter of their impending criminal trial is not material. The second Walsh factor is neutral. As to the third and fourth Walsh factors, the Court has already discussed plaintiff's interest in proceeding expeditiously and the fact that any legitimate prejudice to Camden can be addressed. These factors favor plaintiff. As to the fifth and sixth Walsh factors, these also favor plaintiff. The Court has an interest in proceeding with the case expeditiously and the public has a vital interest in promptly getting to the bottom of what happened in Camden and why.
An informative case from outside this District is Hicks v. City of New York, 268 F Supp.2d 238(E.D.N.Y.2003). In Hicks, the City's police officer was indicted for a killing and the City was thereafter sued. The court denied the City's request for a stay and ruled that "unless the City can show that it will suffer undue prejudice or its constitutional rights will be violated without a stay, the plaintiffs should not be delayed in their efforts to diligently proceed to sustain its claim." Id. at 242-43 (citations omitted). The court found that the City did not satisfy its burden because it was not the target of the related criminal investigation and it did not demonstrate that discovery would interfere with the criminal case. This same situation exists here. In Birge ex rel. Mickens v. Dollar General Corp., No. 04-2531 BP, 2005 WL 3448044 (W.D.Tenn. Dec. 14, 2005), aff'd, 2006 WL 3858042 (W.D.Tenn. Dec. 28, 2006), the plaintiff's decedent was killed in defendant's parking lot and the assailants were indicted and awaiting trial. Even though the defendant, Dollar Store, was not subject of a criminal investigation or prosecution, it moved for a stay. The court denied the request finding that there was only some overlap between the civil and criminal cases, defendant's Fifth Amendment rights were not implicated, a stay would be indefinite, and the plaintiff may be prejudiced by a stay. This same situation exists here. The court in Birge, as is this Court, was particularly sensitive to the fact that a stay would be indefinite. Id. at *3 ("The delay occasioned by a stay is indefinite and could very well extend beyond the one year stay period projected by [defendant]. Such an indefinite stay is disfavored").
Conclusion
In sum, Camden's application for a stay is DENIED. An analysis of all relevant *480 factors leads the Court to conclude that it is inappropriate and inequitable to grant a blanket stay of all or a discrete portion of the case. Nevertheless, in an appropriate instance the Court may limit, bar or delay discovery directed to Camden if warranted under a set of specific facts presented to the Court. That determination will be made on a case by case basis after a detailed analysis of the relevant facts. The Court will not decide the issue in a vacuum.
Accordingly, for all the foregoing reasons, it is hereby ORDERED this 9th day of November, 2010, that Camden's Motion for a Stay of Discovery is DENIED.
NOTES
[1] The present Motion to Stay was filed on behalf of the City of Camden and the City of Camden Department of Public Safety. For ease of reference the Camden entities will be collectively referred to as "Camden."
[2] The Court recently consolidated for discovery and case management purposes twelve (12) lawsuits, including this one, naming all or some of the five implicated Camden police officers and containing allegations similar to those made herein. See November 1, 2010 Consolidation Order, Doc. No. 56. This is the first filed case. The only other case in which Camden filed a Motion to Stay is Tinley v. City of Camden, et al., No. 10-2576 (RBK/JS). The motion in that case will be denied for the same reasons discussed herein.
[3] The two defendants in the case, Kevin Parry ("Parry") and Jason Stetser ("Stetser"), and another police officer, Dan Morris, already pleaded guilty to criminal charges involving the violation of citizens' civil rights and are awaiting sentencing. Two other officers, Antonio Figueroa and Robert Bayard, were recently indicted on similar charges. Their trial has not yet been scheduled. Camden is not defending Parry and Stetser in this action and is unlikely to defend any of the implicated police officers. Parry and Stetser have not entered an appearance in the case.
[4] The Monell issue refers to Monell v. Department of Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Id. at 694, 98 S.Ct. 2018. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. Although not discussed in its Brief, the Court assumes the "supercession issue" refers to whether the State of New Jersey is responsible for Camden's actions because of its "takeover" of the City. See Municipal Rehabilitation and Economic Recovery Act, N.J.S. § 52:27BBB-1 to 65. Forrest alleges the State of New Jersey "controls, manages and/or is responsible for the actions" of Camden. See Complaint ¶ 2.
[5] See also RB at 2 ("[T]he main issue for the Defendants is the inability to communicate effectively with the appropriate persons of the police department given the directions from the U.S. Attorney. . . . Essentially, that directive impedes the Defendants from building any type of defense").
[6] The Certification provides no details about who gave the instruction, when it was given, or how long it will last. Nor does Riondino identify the basis of his "understanding."
[7] The Court expresses no opinion and does not address the merits of plaintiff's claims. That issue is not before the Court. What is before the Court is whether plaintiff's discovery directed to finding out if his civil rights were violated should be indefinitely delayed.
[8] Indeed, Camden has not cited a case where a party not subject to a criminal prosecution successfully moved to stay a case because of a criminal complaint or indictment naming a co-defendant.
|
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763 F.2d 1020
1985-1 Trade Cases 66,643
NATIONAL REPORTING COMPANY, Appellee,v.ALDERSON REPORTING COMPANY, INC., Appellant.
Nos. 83-1931, 84-1475.
United States Court of Appeals,Eighth Circuit.
Submitted March 11, 1985.Decided June 10, 1985.
Mark Arnold, St. Louis, Mo., for appellant.
Peter T. Sadoski, St. Louis, Mo., for appellee.
Before HEANEY, BRIGHT and ARNOLD, Circuit Judges.
ARNOLD, Circuit Judge.
1
National Reporting Company commenced this action against Alderson Reporting Company under Section 4 of the Clayton Act, 15 U.S.C. Sec. 15 (1982), seeking damages for alleged violations of Section 2 of the Sherman Act, 15 U.S.C. Sec. 2 (1982), and injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. Sec. 26 (1982). National claimed that Alderson attempted to and did create a monopoly in the United States Tax Court court-reporting market by submitting a predatory, below-cost bid, with the intent of driving National and other competitors out of the market.1 The District Court held that Alderson was liable for attempted and actual monopolization in violation of Section 2 of the Sherman Act. Alderson argues in this appeal that it could not be held liable for actual monopoly because it never had the ability to control prices or exclude competition, and that it could not be held liable for attempted monopoly because there was never a dangerous probability of success. We agree and reverse.
I.
2
National Reporting Company, a Missouri corporation, was formed in June 1972 by Ronald Gore and Fred Willman, who were also its sole shareholders and officers. National was formed to provide court-reporting services with four-track tape-recording machinery in order to bid for the Tax Court court-reporting contract. Alderson Reporting Company's shareholders are Ira and Rose Ann Sharp, who took over the company from Rose Ann's father, Hal Alderson, in about March 1977. In 1972, National bid for and was awarded the court-reporting contract for the United States Tax Court.
3
The Tax Court has a policy of allowing contractors who perform satisfactorily to renew their contract at the previous year's price. If the contractor wishes to raise his price, the Court puts the contract out for bids. In 1973 the Tax Court renewed its contract with National, but in 1974 the contract was again put out for bids. The Tax Court rejected all of the bids and then changed the contract specifications.
4
Before 1974, Tax Court specifications for court-reporting contracts allowed all methods of court reporting, including stenograph, stenotype, shorthand, stenomask, and electronic. In 1974 the Tax Court amended its specifications to permit only four-track electronic recorders with another set of four-track recorders as back-up, and to require that at least 90 per cent. (90%) of the work be performed by employees of the primary contractor. Proofreading was required to be done against the tape, and not by simply proofreading the printed transcript. National was the only company then able to meet the new specifications and was awarded the 1974 contract. The Tax Court renewed its contract with National every year from 1974 to 1980 at the 1974 price of $1.07 per page.
5
In 1980 National decided it had to raise its prices, so the Tax Court let the contract out again for bids. National and Alderson were the only two companies to bid for the contract; there were, however, at least six other companies, Acme, North American, Neal Gross, Miller, ITS, and Columbia, able to provide four-track electronic reporting in 1980. Tr. 327-28, 599.
6
Alderson's bid was much lower than National's. Alderson bid 50 cents per page for regular cases and 36 cents per page for small cases. National bid $1.60 per page for both types of cases. Alderson was awarded the contract. The Tax Court contract was the only work National had at that time: National went out of business shortly after losing it.
7
Alderson performed poorly on the contract, and the next year the Tax Court again let the contract out for bidding. Alderson bid again; although it almost tripled its bid from the prior year, it was still the lowest bidder. The Tax Court, however, determined that Alderson was an irresponsible bidder because of its inadequate performance on the 1980 contract, and awarded the 1981 contract to Acme Reporting.
8
National brought this lawsuit against Alderson alleging that Alderson used predatory, or below-cost, pricing in order to drive National out of business and then capture a monopoly over the Tax Court court-reporting market. The District Court agreed with National. It held that Alderson's bidding below cost was severely anticompetitive and a violation of Section 2 of the Sherman Act. The Court held that National was damaged in the amount of $228,917, and awarded treble damages of $686,751, plus attorneys' fees.
II.
9
The first step in analyzing this case is a determination of the relevant market. The relevant market is determined by looking at two separate components: the relevant geographic market and the relevant product market. The parties agree that the relevant geographic market is the United States Tax Court. The District Court defined the relevant product market as four-track electronic reporting equipment. Alderson suggests that the District Court intended to define the relevant product market as the provision of court-reporting services to the United States Tax Court, Appellant's Brief at 9 n. 5, because Alderson and National provided services to the Tax Court, not equipment. For purposes of this decision, we accept the relevant market as defined by the District Court and refined by Alderson.
10
National argues that Alderson bid far below cost, knew its bid was far below cost, and did not care if it lost money, because it would attempt to recover its losses in subsequent years after gaining the Tax Court "natural monopoly" market. Conversely, Alderson says that it intended and expected to make a profit, but unforeseen circumstances frustrated this goal. Alderson points out that even National lost money the first year it had the contract. Alderson explained that its bid was so much less than National's because it feared it would be undercut by Acme. Alderson argues that its bid was so far below National's that it cannot be viewed as having been aimed at National.
11
In Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of The Sherman Act, 88 Harv.L.Rev. 697, 698 (1975), the act of predatory pricing is defined as follows:
12
[P]redation in any meaningful sense cannot exist unless there is a temporary sacrifice of net revenues in the expectation of greater future gains.... [T]he classically-feared case of predation has been the deliberate sacrifice of present revenues for the purpose of driving rivals out of the market and then recouping the losses through higher profits earned in the absence of competition.
13
Even if we assume that Alderson's pricing was predatory as so defined, and even if we assume predatory intent, there is no evidence that Alderson ever possessed monopoly power. Alderson did not have the power to raise prices or eliminate competitors, see United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1004, 100 L.Ed. 1264 (1956), so it could never "[recoup] losses though higher profits earned in the absence of competition." 88 Harv.L.Rev. at 698.
14
The District Court found that the Tax Court has a policy of renewing the court-reporting contract for those who perform satisfactorily and who are willing to continue at the same price. If the contractor wishes to raise its prices, the contract goes out for bidding again. As soon as the contract goes back up for bids, there are numerous other court-reporting companies who can bid and try to undercut the company holding the contract. Alderson could not control prices, because if it tried to raise its price, the contract would again be up for bids. Both parties agree that Alderson could not exclude any company from bidding, and by 1980 there were several other companies capable of meeting the Tax Court court-reporting contract requirements. Competition was alive and well in the relevant market.
15
National insists that the relevant market here--the provision of four-track electronic court-reporting services for the Tax Court--is a "natural monopoly," and that, accordingly, legal standards somewhat different from the ordinary should apply. For present purposes, we accept National's proffered definition of "natural monopoly," as set out in Ovitron Corp. v. General Motors Corp., 295 F.Supp. 373, 377 n. 3 (S.D.N.Y.1969) (quoting Kaysen and Turner, Antitrust Policy 191 (1959) ):
16
[a] monopoly resulting from economics of scale, a relationship between the size of the market and the size of the most efficient firm such that one firm of efficient size can produce all or more than the market can take at a remunerative price, and can continually expand its capacity at less cost than that of a new firm entering the business. In this situation, competition may exist for a time but only until bankruptcy or merger leaves the field to one firm, in a meaningful sense, competition is self-destructive.
17
To put this definition in short-hand form, a natural monopoly is a market that can practically accommodate only one competitor. Obviously it cannot be a violation of law to be that one competitor, so long as the company in question has attained its success in the market by business acumen, superior quality, or other means "honestly industrial." See United States v. Aluminum Co. of America, 148 F.2d 416, 429-30 (2d Cir.1945) (L. Hand, J.). National argues, however, that if a natural monopolist has attained its position by unfair means, for example, predatory pricing, then it is guilty of a violation of Section 2 even though the market is a natural monopoly.
18
We may accept this argument, at least in theory, for present purposes, but it does not get National to the desired point. A number of companies have provided electronic court-reporting services to the Tax Court over the years. The market is not a natural monopoly in the sense that it can accommodate, for practical purposes, only one competitor. Each year the market is again thrown open, unless the existing contractor is performing satisfactorily and agrees to continue at the same price. This very condition, as we have seen, negates the "power over price" that is the hallmark of illegal monopolization. If the District Court had found that each one-year contract for the provision of four-track electronic court-reporting services to the Tax Court is a separate market, a different question would be presented, but it did not so find. In short, we assume for present purposes that Alderson did obtain a one-year contract by unfair or predatory means. This may be a violation of some law, perhaps the common law of unfair competition, but it is not a violation of Section 2 of the Sherman Act, because there is no finding below, nor any contention on appeal, that each separate year constitutes a discrete market, and the complaint pleads only a violation of Section 2 of the Sherman Act.
19
National also argues that it does not matter whether Alderson actually obtained monopoly power. In a natural-monopoly situation, it is contended, a defendant may be liable under Section 2 without proof of market dominance or monopoly. Certainly a company can conspire to monopolize (a theory rejected by the District Court and not before us on this appeal), or attempt to monopolize (a theory we shall discuss shortly), without actually attaining market dominance or monopoly power. But it may not be found guilty of completed monopolization in violation of Section 2 without such proof. The first question in a Section 2 case, after the product and geographic markets have been defined, is whether the defendant has monopoly power--whether he can control the price and exclude competition in the relevant market. United States v. E.I. du Pont de Nemours & Co., supra, 351 U.S. at 380, 76 S.Ct. at 998. The next question is how the power was acquired, and here, a defendant can be liable, even in a natural-monopoly situation, if the power has been acquired by improper means. See American Football League v. National Football League, 323 F.2d 124, 131 (4th Cir.1963). A finding of actual acquisition of monopoly power or market dominance is an essential prerequisite before completed monopolization in violation of Section 2 can be found.
20
In support of its position, National quotes the following passage from Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 976 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969):
21
Market dominance or monopoly is not a prerequisite in this type of case because the acts complained of, even if lawful, have an unreasonable restraint on trade and unduly hinder the free flow of competition.
22
The statement is probably dictum. It occurs at the end of a passage in the opinion distinguishing certain cases cited by an unsuccessful plaintiff. But even if it is a holding, it is not, in context, a holding that one may be guilty of completed monopolization in violation of Section 2 without having attained market dominance or monopoly power. The reference in the Court's opinion in Hiland to "this type of case" seems to mean cases in which agreements, combinations, or conspiracies in violation of Section 1 of the Sherman Act are alleged. And of course a violation of Section 1 may occur whether or not market dominance or monopoly power is actually attained. That Section, however, requires a concert of action. A single company or entity, without agreement or combination with others, cannot be in violation of Section 1. Here, only Alderson is named as a defendant, only a violation of Section 2 was found by the District Court, and even in the context of that Section the plaintiff's claim of conspiracy or agreement has been rejected.
23
We conclude, accepting as true all of the findings of the District Court as to the relevant geographic and product market and as to the predatory nature of Alderson's conduct, that the essential prerequisite of power over price has not been established, and that the holding of violation of Section 2 of the Sherman Act in the sense of a completed monopolization cannot stand.
24
The District Court also held that Alderson was liable for attempted monopolization, though apparently only because it had already determined that Alderson was liable for actual monopolization. Since we have reversed the monopolization holding, we must examine separately the elements of attempted monopolization.
25
In order to establish an "attempt to monopolize ... any part of the trade or commerce among the several states ..." under 15 U.S.C. Sec. 2 [National] was required to show [Alderson's] specific intent to monopolize and a dangerous probability of success within [the] relevant product and geographic market.
26
United States v. Empire Gas Corp., 537 F.2d 296, 298-99 (8th Cir.1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977).
27
National contends that several facts point to Alderson's specific intent to monopolize the market: (1) Alderson attempted to buy out National; (2) Ira Sharp wrote two letters to the Clerk of the Tax Court containing criticism of National; (3) the National Reporting Council, an organization of court-reporting companies to which Alderson belonged and National did not, protested the Tax Court's new specifications; and (4) Alderson engaged in predatory pricing without concern for how much money it lost.
28
We have no need to pass on Alderson's intent, because even if Alderson specifically intended to monopolize the Tax Court court-reporting market, there was never a dangerous probability of success. Although Alderson held the contract for 1980, it lost it in 1981 because it performed so poorly in 1980 that it was determined to be an irresponsible bidder. By 1981 there were two court-reporting companies, Acme and Neal Gross, new to the Tax Court court-reporting market, bidding for the contract. Alderson's having lost the contract so soon after receiving it, its inability to raise prices without undergoing another bidding process, and the presence of even more competition in the market, show how small Alderson's chance was of successfully monopolizing the market. In short, we conclude that there was no dangerous probability that Alderson could acquire the ability to control prices or competition in the Tax Court court-reporting market. The District Court's holding that Alderson is liable for attempted monopolization cannot stand.
29
The judgment is reversed, and the cause remanded with directions to dismiss the complaint with prejudice.
1
National also claimed that Alderson conspired to monopolize the market. The District Court held that the evidence did not support a conspiracy theory, and National does not appeal that holding. The District Court's opinion is reported at 567 F.Supp. 1011 (E.D.Mo.1983)
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1312
NUVOX COMMUNICATIONS, INCORPORATED,
Plaintiff - Appellant,
and
NEWSOUTH COMMUNICATIONS CORPORATION,
Plaintiff,
versus
JO ANNE SANFORD, Chairman; J. RICHARD CONDER,
Commissioner; ROBERT V. OWENS, JR.,
Commissioner; SAM J. ERVIN, IV, Commissioner;
LORINZO L. JOYNER, Commissioner; JAMES Y.
KERR, II, Commissioner; MICHAEL F. WILKINS,
Commissioner (in their official capacities as
Commissioners of the North Carolina Utilities
Commission); BELLSOUTH TELECOMMUNICATIONS,
INCORPORATED,
Defendants - Appellees,
and
NORTH CAROLINA UTILITIES COMMISSION,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-cv-00207-BR)
Argued: November 29, 2006 Decided: July 12, 2007
Before MICHAEL and SHEDD, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Judgment vacated and appeal dismissed as moot in part and not ripe
in part by unpublished per curiam opinion.
ARGUED: Robert Jeffery Aamoth, KELLEY, DRYE & WARREN, L.L.P.,
Washington, D.C., for Appellant. Karen Elizabeth Long, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina; Edward Smoot Finley, Jr., HUNTON &
WILLIAMS, Raleigh, North Carolina, for Appellees. ON BRIEF: Henry
J. Campen, Jr., Melanie Black Dubis, PARKER, POE, ADAMS &
BERNSTEIN, L.L.P., Raleigh, North Carolina; John J. Heitmann,
Stephanie A. Joyce, KELLEY, DRYE & WARREN, L.L.P., Washington,
D.C., for Appellant. Roy Cooper, North Carolina Attorney General,
Grayson G. Kelley, Chief Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees,
Commissioners. Christopher J. Ayers, HUNTON & WILLIAMS, Raleigh,
North Carolina, for Appellee BellSouth Telecommunications,
Incorporated.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
For the reasons explained below, we vacate the judgment
of the district court and dismiss this appeal as moot in part and
not ripe in part.
I.
This case involves a dispute between BellSouth
Telecommunications, Inc. (BellSouth) and NuVox Communications, Inc.
(NuVox) regarding the terms on which BellSouth can audit NuVox’s
use of certain telephone network elements called Enhanced Extended
Links (EELs). NuVox uses EELs of BellSouth pursuant to two
different interconnection agreements between the carriers. (We
will at times refer to one of the agreements as the NuVox Agreement
and the other as the NewSouth Agreement.) Both agreements allow
NuVox to convert higher-cost special access circuits to lower-cost
EELs provided that NuVox self-certify that it is using the circuits
to provide a “significant amount of local exchange service” as
defined by the Federal Communications Commission (FCC). J.A. 166,
731. When certain conditions are met, both the NuVox and NewSouth
Agreements grant BellSouth the right to audit NuVox to ensure that
it is complying with the local usage requirements.
Plaintiff-appellant NuVox filed a verified complaint in
the district court on March 28, 2005, against defendants-appellees
BellSouth and the commissioners of the North Carolina Utility
3
Commission (NCUC) in their official capacities, seeking relief from
three orders issued by the NCUC in 2004 and 2005. In the first of
the three orders at issue, the NCUC decided that BellSouth was
entitled to conduct an audit (the NewSouth audit) of EELs use under
the terms of the NewSouth Agreement. In the Matter of BellSouth
Telecomms., Inc. v. NewSouth Commc’ns, Corp., Order Granting
Summary Disposition and Allowing Audit, Docket No. P-772, Sub 7
(Aug. 24, 2004). In the second order the NCUC denied a motion to
reconsider its order authorizing the NewSouth audit. Id., Order
Denying Motion for Reconsideration, Docket No. P-772, Sub 7 (Jan.
20, 2005). The third order issued by the NCUC authorized BellSouth
to conduct an audit (the NuVox audit) on EELs use under the NuVox
Agreement. In the Matter of the Enforcement of Interconnection
Agreement Between BellSouth Telecomms., Inc. and NuVox Telecomms.,
Inc., Order Granting Motion for Summary Disposition and Allowing
Audit, Docket No. P-913, Sub 7 (Feb. 21, 2005).
In its complaint in the district court, NuVox sought
declaratory and injunctive relief with respect to the three NCUC
orders. NuVox alleged that the NCUC had misinterpreted the terms
of both interconnection agreements in authorizing the audits.
Specifically, NuVox asserted that federal law incorporated into the
agreements requires: (1) that BellSouth “demonstrate a concern”
prior to being authorized to audit and (2) that NuVox be allowed to
4
challenge the independence of an auditor before an audit is
initiated.
The district court did not reach the merits of the
dispute because it concluded that NuVox’s complaint does not arise
under federal law. As a result, the court dismissed the complaint
for lack of subject matter jurisdiction under 28 U.S.C. § 1331.
NuVox appealed, arguing that a substantial question of federal law
is raised by the issue of whether the NCUC’s interpretation of the
interconnection agreements resulted in the denial of what NuVox
asserts are federal rights. NuVox argues in the alternative that
the district court had subject matter jurisdiction under Section
252(e)(6) of the Telecommunications Act of 1996, Pub. L. 104-104,
110 Stat. 56, codified at 47 U.S.C. § 251 et seq.
On March 27, 2007, after the case had been argued before
this court, NuVox submitted a Fed. R. App. P. 28(j) Notice of
Supplemental Authority, informing us of an FCC decision issued the
day before that bears on this appeal. The FCC issued a Memorandum
Opinion and Order on March 26, 2007, approving of the merger of
BellSouth with AT&T. FCC approval of the merger was contingent
upon a number of conditions including the requirement that:
AT&T/BellSouth shall cease all ongoing or threatened
audits of compliance with the Commission’s EELs
eligibility criteria (as set forth in the Supplemental
Order Clarification’s significant local use requirement
and related safe harbors, and the Triennial Review
Order’s high capacity EEL eligibility criteria), and
shall not initiate any new EELs audits.
5
In the Matter of AT&T Inc. and BellSouth Corp. Application for
Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and
Order, Appendix F at 149 (Mar. 26, 2007) (FCC Merger Order). In
its Rule 28(j) notice NuVox asserted that this merger condition
renders as moot the disputes surrounding both the NuVox audit and
the NewSouth audit. We requested and received supplemental
briefing on the issues of mootness and ripeness from the parties,
and we turn now to those issues.
II.
Federal courts have no jurisdiction to decide moot
questions. Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
Because of the case or controversy requirement found in Article III
of the Constitution, “federal courts are without power to decide
questions that cannot affect the rights of litigants in the case
before them.” De Funis v. Odegaard, 416 U.S. 312, 316 (1979)
(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Both NuVox and BellSouth assert that the appeal of the
NCUC’s February 21, 2005, order in Docket P-913 authorizing the
NuVox audit is moot. Although the NCUC authorized an audit under
the NuVox Agreement more than two years ago, BellSouth never began
the audit as a result of an injunction issued by the district court
in this case. As a result, on February 16, 2007, BellSouth and
NuVox filed a joint motion in NCUC Docket P-913 requesting that the
6
NCUC vacate its February 2005 order. BellSouth and NuVox stated
the dispute arising from that order “is moot because BellSouth had
neither commenced nor completed the audit it was allowed to conduct
under the [Feb. 21, 2005] Order and the [FCC] merger condition bars
BellSouth from proceeding with that audit.” In light of the fact
that BellSouth no longer seeks to enforce the February 2005 order
in NCUC Docket P-913, we agree that this appeal as it relates to
that order has been mooted.
While the parties agree that a portion of this appeal is
moot, they contest the effect of the FCC Merger Order on the NCUC
orders issued in Docket P-772 interpreting the NewSouth Agreement.
In contrast to what occurred after the NCUC issued its ruling in
Docket P-913, NuVox did not seek an injunction barring BellSouth
from beginning the NewSouth audit authorized in Docket P-772. As
a result, the auditor contracted by BellSouth released its findings
on the NewSouth audit on November 11, 2004.
BellSouth contends that the NewSouth audit was concluded
when the auditor released its findings. NuVox argues that the
record before us shows that the audit was never completed because
the auditor’s report includes a “placeholder” exhibit for a letter
needed from NuVox that NuVox has not supplied. See NuVox’s
Supplemental Br. at 14-15, Appendix E. According to NuVox, the
letter could not be drafted because the auditor has never reviewed
and verified the results found with NuVox. The dispute between the
7
parties over the significance of the missing letter and of the
audit verification procedures in general is of considerable
importance because those questions may determine whether or not the
FCC Merger Order moots any dispute about the audit authorized in
Docket P-772.
As a result of this dispute, we conclude that the issues
in this appeal relating to the NCUC’s August 2004 and January 2005
orders in Docket P-772 are not ripe for review. Drawn from both
Article III limitations and prudential considerations, ripeness is
a justiciability doctrine designed “to prevent the courts, through
premature adjudication from entangling themselves in abstract
disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 580 (1985). “To determine whether the case is ripe, we
balance the fitness of the issues for judicial decision with the
hardship to the parties of withholding court consideration.”
Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (internal
quotation omitted).
We have previously explained that a case “is fit for
judicial decision where the issues to be considered are purely
legal ones and where the agency rule or action giving rise to the
controversy is final and not dependent upon future uncertainties or
intervening agency rulings.” Charter Fed. Sav. Bank v. Office of
Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992). This is not
the situation here. To determine whether there is still a
8
justiciable controversy between the parties, we would first have to
decide whether the NewSouth audit has already been completed.
Underlying this question are several disputed factual and legal
issues. It is not within our province, however, to settle the
factual disputes surrounding the audit verification procedures.
Furthermore, the considerations that favor withholding
review are not outweighed by any hardship that dismissing the
appeal may cause the parties. Significantly, we conclude that
dismissal for lack of ripeness will not prevent NuVox from raising
the same issues in the future should the appropriate trier of fact
determine that there remains a live dispute surrounding the
NewSouth audit. Another proceeding involving the NewSouth audit is
currently pending before the NCUC in its Docket P-1341, Sub 1. On
September 22, 2006, BellSouth filed a complaint under that docket
number asserting that the audit report released on November 11,
2004, shows that NuVox has breached the local usage requirements in
the NewSouth Agreement. The complaint in Docket P-1341 is based on
the NewSouth audit authorized by the NCUC in Docket P-772. Just as
it has before this court, NuVox has argued to the NCUC that the
NewSouth audit has never been completed. Thus, NuVox has urged the
NCUC to determine that the FCC Merger Order moots BellSouth’s
complaint in Docket P-1341. For its part, BellSouth has argued
that the Merger Order is inapplicable to the proceeding in Docket
P-1341 and that NuVox’s argument to the contrary must first be
9
adjudicated by the FCC and not the NCUC. This is so, BellSouth
argues, because the FCC retains exclusive jurisdiction to interpret
and enforce conditions contained in the Merger Order. The NCUC has
not ruled on these questions and has placed the proceedings in
Docket P-1341 in abeyance pending the outcome of this appeal.
We take no position at this point on whether the FCC or
the NCUC is the appropriate agency to determine these matters in
the first instance. At any rate, only after a threshold
determination has been made as to whether the NewSouth audit was
completed, or is instead ongoing or threatened, will it be clear
whether BellSouth can maintain its complaint in Docket P-1341. If
the FCC Merger Order has mooted the proceedings in Docket P-1341,
NuVox would have no need to seek any sort of relief from the
federal courts in relation to the NewSouth audit. If, however, the
FCC Merger Order has not mooted the proceedings in Docket P-1341,
and the NCUC ultimately rules in favor of BellSouth/AT&T, NuVox
could challenge that decision in federal court on the same grounds
that it challenged the orders issued in Docket P-772. Accordingly,
we vacate the district court’s judgment that NuVox’s complaint in
this case does not raise a federal question, and we then dismiss
the present appeal. In vacating the judgment of the district
10
court, we are offering no opinion on the merits of the
jurisdictional questions that were raised and may again be raised
in a future action.
JUDGMENT VACATED AND
APPEAL DISMISSED AS MOOT IN PART
AND NOT RIPE IN PART
11
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183 Cal.App.4th 1510 (2010)
108 Cal. Rptr. 3d 424
JAMES E. FULTON, JR., Plaintiff and Appellant,
v.
MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent.
No. B215102.
Court of Appeals of California, Second District, Division Four.
April 23, 2010.
*1512 Martin & McCormick, John D. Martin and Kathy J. McCormick for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Paul C. Ament and Vladimir Shalkevich, Deputy Attorneys General, for Defendant and Respondent.
OPINION
EPSTEIN, P. J.
Appellant James E. Fulton, Jr., appeals from a judgment denying his claim for declaratory and injunctive relief against respondent, the Medical Board of California (the Board). Appellant was a licensed physician in California before surrendering his license in 2003 to settle disciplinary charges filed by the Board. Afterwards, the Board published disciplinary information about appellant on its Web site, including information about a medical malpractice judgment entered against him, and the surrender, retirement, and indefinite suspension of his licenses to practice medicine in other states. Appellant sued the Board, claiming that because he no longer was licensed in California, he was not a "licensed physician" or a "licensee" under Business and Professions Code section 2027[1] (and by implication the cross-referenced § 803.1), and therefore the Board was not required to disclose the information. The trial court found the Board acted within its *1513 statutory mandate and denied appellant's claim.[2] He appeals, arguing the court erred in its interpretation of the statutes. We disagree, and hold that sections 803.1 and 2027 required the Board to publish the information.
FACTUAL AND PROCEDURAL SUMMARY
Following the usual rules on appeal after a trial on the merits, we construe the facts in the light most favorable to the judgment. (Woodman Partners v. Sofa U Love (2001) 94 Cal.App.4th 766, 771 [114 Cal.Rptr.2d 566].)
Appellant was first licensed to practice medicine in California in 1970. Beginning in 1997, California and several other states initiated disciplinary actions against him. In 2002, appellant voluntarily surrendered his California license as part of a stipulated settlement with the Board; the surrender became effective in 2003. Shortly thereafter, the Board posted information on its Web site showing that appellant surrendered his California license in 2003. The same year, the Board changed its disclosure policy about individuals formerly licensed in California. Under its new policy, which remains its policy, information about disciplinary actions undertaken by the Board and in other states, felony convictions, and certain settlements and arbitration awards is available on the Internet. (See fn. 4, post.) The Board posted information about enforcement actions taken against appellant in other states while he was licensed in California, and updated disclosures as out-of-state cases proceeded. The disclosures included the surrender, retirement, and indefinite suspension of appellant's medical licenses in Florida, New York, and Louisiana, and a malpractice judgment entered against him in Orange County Superior Court. Actions initiated against appellant after he surrendered his California license were not disclosed, including the revocation of his Tennessee license in 2005.
Although appellant was no longer licensed to practice medicine in any state, he continued to work in a field closely related to medicine. Appellant gave three-day lectures in California and elsewhere for a company, Advanced Aesthetics Training Institute, about diseases of the skin, the causes and treatments of acne, and other dermatological topics. Attendees were given certificates signed by appellant as an "M.D."[3] Appellant's family had an ownership interest in a company, Vivant Pharmaceuticals (Vivant), that *1514 produced dermatological products which appellant promoted at trade shows in various states, including California. Advertising materials for the products attributed the titles "Dr." or "M.D." to appellant, described him as a "Lead Formulating Consultant," and mentioned his "35 years of experience as a physician." Vivant's products were sold to the public through a Web site that described appellant's medical education, and claimed that he was a "leading researcher, cosmetic surgeon and dermatologist." Appellant answered questions on the Web site regarding the causes and treatments for skin conditions as "Dr_Fulton." The record does not show that the Web site disclosed that appellant was not licensed to practice medicine. An investigator from the Board purchased products from the Web site, which were delivered to California with an embossed inscription of appellant's signature "James E. Fulton, M.D."
Appellant filed this action against the Board in 2008. He alleged that the Board's disclosures of his disciplinary record caused him to lose work opportunities and suffer "public and private ridicule and embarrassment." Some of Vivant's customers called the company and discussed, in an agitated manner, the information posted on the Board's Web site. While appellant was giving a lecture at a conference in Malaysia, the chairman of the conference received an e-mail referencing the Board's Web site, with the comment "shame, shame, shame." Appellant was not invited to subsequent conferences. He sought a declaratory judgment that the Board was not statutorily required to publish the disciplinary information, and an injunction prohibiting the Board from posting any information about him on its Web site. The matter proceeded to trial, and judgment was entered for the Board. This appeal followed.
DISCUSSION
Appellant argues that sections 803.1 and 2027 do not require the Board to "post information regarding disciplinary actions against physicians who are no longer licensed by the State." Because this claim requires interpretation of sections 803.1 and 2027, we apply a de novo standard of review. (Szold v. Medical Bd. of California (2005) 127 Cal.App.4th 591, 596, fn. 4 [25 Cal.Rptr.3d 665].)
(1) "In construing any statute, `[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.' [Citation.] `We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the *1515 statutory language is unambiguous, `we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citation.]" (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485 [17 Cal.Rptr.3d 88].) "If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196].) The Board interprets sections 803.1 and 2027 to require that it disclose enforcement actions that occurred while former licensees were licensed in California, and to correct errors in disclosures. We accord respect and consideration to the Board's interpretation, but we apply our independent judgment in construing the statutes. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8 [78 Cal.Rptr.2d 1, 960 P.2d 1031].)
(2) Sections 803.1 and 2027 require the Board to disclose information about "licensees" and "licensed physicians" without explicitly stating whether the Board must make disclosures about individuals who no longer hold a license to practice medicine in this state. But, provisions of the statutes demonstrate that the Legislature intended the disclosure requirements to apply to former license holders. Section 803.1, subdivision (a) requires the Board to disclose "any enforcement actions taken against a licensee by [the Board] or by another state ...." Enforcement actions include "[r]evocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a ... stipulated agreement." (§ 803.1, subd. (a)(3).) By definition, "revocations" include licenses that have been revoked and hence are no longer valid, and it is reasonable to interpret this provision to apply to former license holders. Section 2027, subdivision (a)(1) requires that the Board post on the Internet enforcement actions set forth in section 803.1. Section 2027, subdivision (b)(1) requires that the Board post enforcement actions, including license revocations and malpractice judgments, on its Web site for a period of 10 years after the information comes within its possession, custody, or control without providing for its removal if an individual is no longer licensed in California. Limiting required disclosures to current licensees would render this provision ineffectual.
The legislative history and background of these statutes are consistent with this reading. Over the course of a decade, the Legislature expanded the substance and form of the Board's disclosure mandates. When originally enacted in 1993, section 803.1 required the Board to disclose to the public temporary restraining orders, suspensions, limitations on practice, and letters of reprimand. (Sen. Bill No. 916 (1993-1994 Reg. Sess.) § 4.3.) In 1997, the Legislature added medical malpractice judgments, arbitration awards, and hospital disciplinary actions to the disclosure requirements. (Assem. Bill No. 103 (1997-1998 Reg. Sess.) § 4.) At the same time, it enacted section 2027, requiring the Board to post on the Internet information about the status *1516 of a license and whether a licensee had been subject to discipline by the Board or another state. (Assem. Bill No. 103 (1997-1998 Reg. Sess.) § 7.) That bill's proponents argued that expanded disclosures would "enable consumers to make informed decisions about their physicians." (Sen. Com. on Business & Professions, Analysis of Assem. Bill No. 103 (1997-1998 Reg. Sess.) as amended June 22, 1997.) It was sponsored to allow the public easy access to disciplinary information about physicians, particularly information about medical negligence. (Ibid.) In 2002, section 803.1 was amended to require disclosure of revocations, including those made part of a stipulated agreement, and section 2027 was changed to require disclosure of enforcement actions set forth in section 803.1. (Sen. Bill. No. 1950 (2001-2002 Reg. Sess.) §§ 6, 13.)
(3) This history shows the Legislature intended that the Board disclose information about physicians' disciplinary records to protect consumers and prevent medical malpractice. In interpreting these statutes, we presume "`"the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences."'" (Hellinger v. Farmers Group, Inc. (2001) 91 Cal.App.4th 1049, 1056 [111 Cal.Rptr.2d 268].) In a literal sense, once a license is revoked, a former license holder is no longer a licensee. But public knowledge of the fact that a putative physician no longer holds a license to practice medicine in this state is central to the informative purpose of the statutes. Limiting the meaning of "licensee" to current license holders would defeat that purpose.
Perhaps in acknowledgment of this, appellant argues that the public would be equally protected if the Board only posted information showing when he surrendered his California license, without including information about his out-of-state license revocations and the medical malpractice judgment entered against him.[4] The facts of this case illustrate the correctness of the Board's interpretation of the statutes. Appellant repeatedly held himself out as a physician when marketing products and giving lectures in California. The public has an interest in the professional disciplinary history of an individual who affiliates with the practice of medicine, and the Board's disclosures further the public safety and welfare. We note that even if appellant did not work in the medical field or represent himself as a physician, there is no reason why the Board would not disclose information in its custody or control on the Internet rather than require an inquiring member of the public to search through databases of different states.
*1517 (4) A reasonable interpretation of the text of the statutes, made in consideration of their purpose, supports the Board's position. We interpret sections 803.1 and 2027 to require the Board to publish information about enforcement actions initiated while an individual is licensed to practice medicine in California, and to correct those disclosures when new information becomes available.
DISPOSITION
The judgment is affirmed. Respondent to have its costs on appeal.
Willhite, J., and Manella, J., concurred.
NOTES
[1] All statutory references are to the Business and Professions Code unless otherwise noted.
[2] Appellant also claimed that the Board's actions violated his right to privacy contained in article I, section 1 of the California Constitution. He does not appeal the trial court's rejection of this claim and we do not discuss it.
[3] We note that it is a misdemeanor, under section 2054, for individuals who are not licensed to practice medicine in this state or another jurisdiction to use the title "M.D." in advertising materials. The record does not show any charges brought against appellant for violation of this statute.
[4] Indeed, at one time this was the Board's disclosure policy for former license holders. But, in 2003, the Board broadened the scope of its disclosures in response to the Legislature's amendments of sections 2027 and 803.1 and what the Board's staff perceived as shortcomings in its former policy. This testimony was given by a staff person who heads the unit charged with public disclosures. This witness was impeached at trial with deposition testimony where she said the policy change was unrelated to the Legislature's amendment of the statutes.
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274 F.Supp.2d 1334 (2003)
Christopher Scott HUGHES and Thomas Porter Cloyd, Petitioners,
v.
THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, the Honorable Joseph P. Farina, in his capacity as Chief Judge of The Eleventh Judicial Circuit of Florida, The Honorable David H. Young, in his capacity as a Judge on The Eleventh Judicial Circuit of Florida, and Charlie Crist, Attorney General of the State of Florida, Respondents.
No. 03-21300-CIV.
United States District Court, S.D. Florida.
August 5, 2003.
*1335 Jeffrey L. Freeman, Esq., Counsel for Petitioner Hughes, North Miami.
James K. Rubin, Esq., Counsel for Petitioner Hughes, North Miami Beach.
William M. Pearson, Esq., H. Eugene Lindsey, Esq., Beatrice Butchko, Esq., Counsel for Petitioner Cloyd, Ferrell Schultz Carter Zumpano & Fertel, PA, Miami.
Richard L. Polin, Esq., Counsel for Respondents, Office of the Attorney General, Miami.
Katherine Fernandez Rundle, Miami-Dade State Attorney, c/o Ron Ramsingh, Miami.
Hon. Joseph P. Farina, Miami. Hon. David H. Young, Miami.
ORDER GRANTING CHRISTOPHER SCOTT HUGHES AND THOMAS PORTER CLOYD'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
SEITZ, District Judge.
THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus of Petitioners Christopher Scott Hughes ("Hughes") and Thomas Porter Cloyd ("Cloyd") pursuant to 28 U.S.C. § 2254. Hughes and Cloyd, both former pilots for America West Airlines, seek to enjoin the *1336 State of Florida from criminally prosecuting them for operating a commercial aircraft while under the influence of alcohol. Hughes and Cloyd contend that federal law exclusively governs their actions as federally certified commercial airline pilots and preempts the state criminal laws under which the State seeks to prosecute them. The Attorney General of Florida, on behalf of the Respondents, maintains that the State has concurrent power to prosecute federally certified commercial airline pilots for operating an aircraft while under the influence of alcohol.
As the state trial has not yet begun, the first issue is whether the Court may properly intervene at this early stage of the state criminal proceedings, or whether abstention is required. Second, if abstention is not required, the Court must determine whether Hughes and Cloyd have met the statutory requirements for pretrial habeas relief by demonstrating that the State Courts' denial of their motion to dismiss the state charges on federal preemption grounds was contrary to, or involved an unreasonable application of clearly established federal law. In order to address both of these issues, the Court must determine whether federal law governing pilot qualifications and capacity to operate commercial aircraft in interstate commerce preempts the state criminal laws under which the State seeks to prosecute Hughes and Cloyd. Consideration of these issues requires recognition of the federal government's interests in maintaining and enforcing uniform, nationwide standards regulating the behavior of commercial airline pilots, and the State's interests in enforcing its criminal laws to protect the safety and welfare of its citizens.
Having considered Hughes and Cloyd's Petition for Writ of Habeas Corpus, Respondents' Response, the Reply thereto, Respondents' Supplemental Response and Supplemental Authorities, and having heard oral argument on this matter, the Court holds that federal law governing pilot qualifications and capacity to operate commercial aircraft in interstate commerce preempts the state criminal laws under which the State seeks to prosecute Hughes and Cloyd through both field and express preemption. Because preemption is readily apparent, the Court must not abstain from intervening in the state criminal proceedings. Additionally, Hughes and Cloyd have demonstrated that the State Courts unreasonably applied clearly established federal law to the facts in this case. Thus, the Court must grant the petition, order the State Courts to discharge Hughes and Cloyd from the State's custody, quash the state criminal proceedings, and enjoin the State from taking any further criminal action against Hughes and Cloyd for the actions described in State of Florida v. Christopher Scott Hughes and Thomas Porter Cloyd, Case No. F02-019207B.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2002, First Officer Hughes and Captain Cloyd, both federally certified airmen at the time, boarded America West Airlines Flight 566 in preparation for a commercial flight from Miami, Florida to Phoenix, Arizona. Shortly after Flight 566 pushed back from the gate at Miami International Airport with Hughes and Cloyd at the controls, officers from the Miami-Dade County Police Department contacted the Transportation Security Administration and asked for permission to recall Flight 566 based upon tips from officials at the security checkpoint that the pilots smelled of alcohol. After the Transportation Security Administration granted permission and air traffic control recalled the plane to the gate, Miami-Dade police officers interviewed the pilots.
Approximately two hours later, Miami-Dade police took Hughes and Cloyd to the station and administered breathalyzer *1337 tests. The results of those tests revealed that both Hughes and Cloyd had breathalcohol levels exceeding the 0.08 limit under Florida criminal law, exceeding the 0.04 federal regulatory limit, but not exceeding the federal criminal limit of 0.10. As a result of the breathalyzer tests, America West permanently fired Hughes and Cloyd, and the Federal Aviation Administration ("FAA") permanently revoked their airmen and medical certificates.
Thereafter, on July 22, 2002, the State filed a two-count Information criminally charging Hughes and Cloyd with operating an aircraft while under the influence of alcohol in violation of Fla. Stat. §§ 316.193(1)(c)[1] and 860.13(1)(a).[2] Hughes and Cloyd pleaded "not guilty" to all state charges. The State Circuit Court Judge released both Hughes and Cloyd on bail pending trial which is presently set for October, 2003.
On September 4, 2002, Hughes and Cloyd moved to dismiss the state criminal charges, arguing that the State Circuit Court lacks subject matter jurisdiction over the acts alleged in the Information because federal law preempts state law in the area of pilot qualification and capacity to operate commercial aircraft in interstate commerce.[3] On October 23, 2002, the State Circuit Court conducted a hearing on Hughes and Cloyd's motion and denied their request to dismiss the Information without written opinion.[4] Thereafter, Hughes and Cloyd filed a Petition for Writ of Prohibition with the Third District Court of Appeal, challenging the State Circuit Court's ruling. On January 9, 2003, the Third District Court of Appeal held oral argument and denied Hughes and Cloyd's petition without opinion. The Third District Court of Appeal also considered Petitioners' motions for rehearing and written opinion, motion for certification of great public importance, and motion for rehearing en banc, and denied those motions without opinion.[5]
Having exhausted their state remedies, Hughes and Cloyd petitioned for a writ of *1338 habeas corpus pursuant to 28 U.S.C. § 2254, asking this Court to discharge them from the State's custody, quash the state proceedings, and enjoin the State from taking any further action against them.[6] Hughes and Cloyd contend that federal habeas relief is appropriate for two reasons. First, they argue that they have satisfied the threshold requirements of 28 U.S.C. § 2254 because: (a) they are in custody pursuant to a state court judgment; and (b) they have exhausted their available state court remedies.[7] Second, Hughes and Cloyd also maintain that federal law preempts state law in the area of pilot qualification and capacity to operate commercial aircraft in interstate commerce, and therefore, the State lacks jurisdiction to prosecute them.
Hughes and Cloyd premise their federal preemption arguments primarily on field preemption. Specifically, they argue that Congress has impliedly preempted the field of law governing the qualifications and capacity of pilots operating commercial aircraft in interstate commerce through the comprehensive scheme of federal regulations under 49 U.S.C. § 44701 et seq.,[8] and the federal criminal prohibitions against piloting a commercial aircraft while intoxicated pursuant to 18 U.S.C. §§ 341-343.[9] In the alternative, Hughes *1339 and Cloyd maintain that Congress has expressly preempted the same area of law under 14 C.F.R. Pt. 121, App. I, § XI.[10]
In response, Respondents make two main arguments. First, that pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court should abstain from interfering with the State Court criminal proceedings until those proceedings have been completed, i.e., until Hughes and Cloyd have been tried and found guilty. Second, that Petitioners have not demonstrated that the State Courts' refusal to dismiss the state prosecution on grounds of federal preemption were either contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d).[11]
II. ABSTENTION
Federal courts must not interfere with pending state criminal proceedings in the absence of extraordinary circumstances demonstrating a great and immediate threat of irreparable injury. Younger, 401 U.S. at 46, 91 S.Ct. 746; Kolski v. Watkins, 544 F.2d 762, 764-65 (5th Cir. 1977).[12] This longstanding policy is grounded in two legal principles. The first "is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger, 401 U.S. at 43-44, 91 S.Ct. 746. The second is "the notion of `comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Id. at 44, 91 S.Ct. 746.
While Younger did not specify the types of "extraordinary circumstances" warranting federal intervention, it did suggest that extraordinary circumstances may arise *1340 where a state statute is found to be "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Id. at 53, 27 L.Ed.2d 669. Applying Younger, the Eleventh Circuit has held that federal court intervention is required where a petitioner demonstrates that federal preemption of state law is "readily apparent." Baggett v. Dep't of Prof'l Regulation, 717 F.2d 521, 524 (11th Cir.1983).
In Baggett, the plaintiff was a marine pilot, holding both federal and state licenses, who allegedly piloted a tug and barge into Tampa Bay Harbor while intoxicated. Notwithstanding the fact that the tug and barge were considered "enrolled vessels," and thereby subject to the exclusive control of the United States, Florida's Department of Professional Regulation, through its Board of Pilot Commissioners, filed an administrative complaint against the plaintiff for piloting the vessels while intoxicated. The plaintiff, however, argued that federal law preempted state law because his actions as a tug and barge pilot were governed by federal statutes and regulations, and therefore the state agency could not pursue an administrative complaint against him.
The Eleventh Circuit, agreeing with the plaintiff, held that where federal preemption is readily apparent, abstention is not appropriate.[13]Baggett, 717 F.2d at 524. While observing that "Florida has an important interest in insuring that state licensed marine pilots do not navigate registered vessels in a dangerous manner," the Eleventh Circuit emphasized that "Congress, however, has determined that the United States has an identical interest in insuring safe pilotage of enrolled vessels, and that the states should not interfere with federal enforcement of its requirements of pilots operating under federal licenses." Id at 523-24. The Eleventh Circuit concluded that "a pilot operating under his federal license ought not to be subject to state disciplinary proceedings when his conduct conforms to federal regulations." Id. at 523.
In light of Baggett, and because it is readily apparent that federal law exclusively governs the qualifications and capacity of pilots to operate commercial aircraft in interstate commerce, abstention is not proper in this case. See infra sec. IV. To abstain from addressing the merits of Hughes and Cloyd's petition would be to subject them to trial on charges for which the State lacks jurisdiction. Baggett, 717 F.2d at 524 ("When preemption is readily apparent.. .the state tribunal is acting beyond the lawful limits of its authority....").
III. GENERAL HABEAS REQUIREMENTS
To prevail on a federal habeas petition filed pursuant to 28 U.S.C. § 2254(d)(1), a petitioner must demonstrate that "the relevant state-court decision was either (1) contrary to... clearly established Federal law, as determined by the Supreme Court of the United States or (2) involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotations omitted).[14] Although the State Courts did *1341 not explain the basis for their decisions rejecting Hughes and Cloyd's federal preemption arguments, such fact does not prevent application of the Williams test. All that is required for purposes of a federal habeas petition "is a rejection of the claim on the merits [by the state court], not an explanation." Wright v. Secretary for the Deft of Corrections, 278 F.3d 1245, 1255 (11th Cir.2002) ("To conclude otherwise on this issue would be writing into § 2254(d)(1) an additional requirement that Congress did not put there-a requirement that the state courts explain the rationale of their decisions.").[15]
Thus, the Court assumes that the State Courts applied the correct Supreme Court precedent on federal preemption, and proceeds not under the "contrary to" test which is used only where the state court applies the incorrect law, but under the "unreasonable application of test as the Eleventh Circuit did in Wright. As discussed infra sec. IV, the Court concludes that the State Courts unreasonably applied the well-established federal preemption doctrine to the facts in this case.
IV. FEDERAL PREEMPTION
A. General Principles of Federal Preemption
The Supremacy Clause of the United States Constitution provides the foundation for the federal preemption doctrine: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const., art. VI, cl. 2. The Supreme Court has held that the Supremacy Clause requires federal preemption in three circumstances: (1) express preemption, where a federal statute contains explicit preemptive language; (2) field preemption, where the federal regulatory scheme is so pervasive that Congress left no room for the States to supplement it; and (3) conflict preemption, where compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Pharmaceutical Research & Mfrs. of Am. v. Meadows, 304 F.3d 1197, 1205 (11th Cir.2002) (citing Gade v. Nat'l Solid Wastes Mgmt, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). "Congressional intent is the ultimate touchstone in a preemption case... and this intent governs [a court's] determination of whether federal law preempts state law." This That and the Other Gift & Tobacco, Inc. v. Cobb County, *1342 Ga., 285 F.3d 1319, 1322 (11th Cir.2002) (citations and internal quotations omitted).
B. Field Preemption
Hughes and Cloyd's primary argument is that Congress and the FAA, under its Congressionally mandated authority to regulate, have preempted the field of law governing the qualifications and capacity of pilots who operate commercial aircraft in interstate commerce. Field preemption exists where either: (1) the pervasiveness of the federal regulation precludes supplementation by the States; (2) the federal interest in the field is sufficiently dominant; or (3) the object the federal law seeks to obtain and the character of obligations federal law imposes reveal the same purpose. Schneidemnd v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) (holding that the federal Natural Gas Act preempts Michigan's state law regulating the issuance of long-term securities because Michigan's regulation "impinges on a field that the federal regulatory scheme has occupied"); Fidelity Fed. Sav. & Loan Ass'n v. Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (noting that administrative regulations have the same preemptive power as statutes where Congress has delegated the requisite authority to the administrative agency).
The ultimate question in any preemption inquiry is whether Congress intended for the federal government to have exclusive control of a particular field of law. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). It must also be noted that "although the term `field preemption' suggests a broad scope, the scope of a field deemed preempted by federal law may be narrowly defined." Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir.1999). The Court's holding here is informed by the facts of the case and is thus narrowly applied only to the field of qualifications and capacity to pilot regularly scheduled commercial flights in interstate commerce where there are no actual fatalities or injuries to persons or property. Looking at the pervasiveness of the federal regulations in this field and the dominant federal interests in promoting uniform standards regulating the behavior of commercial pilots, it is readily apparent that Congress has preempted the field.
(1) Pervasiveness of the Federal Regulations
In 49 U.S.C. § 44701(a), Congress granted the FAA the authority to promote safe flight of civil aircraft in air commerce. Specifically, 49 U.S.C. § 44701(a)(5) requires the FAA to create regulations regarding the "practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security." Additionally, 49 U.S.C. § 44701(c) requires the Administrator to "carry out this chapter in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation." Thus, this language indicates Congress' clear intent to empower the FAA to regulate the airline transportation industry to ensure safe flights. A key factor in flight safety is the qualifications and capacity of those at the helm of the flight, namely the pilots.
Pursuant to this grant of authority from Congress, the FAA has promulgated extensive regulations in the area of commercial pilot qualifications, including pilot licensing (14 C.F.R. § 61.1 et seq.), pilot medical requirements (14 C.F.R. § 67.1 et seq.), pilot conduct (14 C.F.R. § 91.1 et seq.), operating requirements (14 C.F.R. §§ 121.1 et seq. & 135.1 et seq.), and the misuse of alcohol while on duty (14 C.F.R. §§ 135.253 & 121.458).[16] Additionally, Congress has made it a federal crime for pilots to operate a commercial aircraft with *1343 a blood alcohol concentration of 0.10 or more. 18 U.S.C. §§ 341-343. The FAA has also promulgated regulations imposing criminal penalties for specified violations of the Federal Aviation Act or any related regulations. See 14 C.F.R. § 13.23.[17]
This comprehensive web of legislation makes it readily apparent that Congress intended to preempt the field of pilot qualifications and capacity to fly a commercial airliner in interstate commerce. See French v. Pan Am Express, Inc., 869 F.2d 1, 6 (1st Cir.1989) (holding that the Federal Aviation Act preempts Rhode Island's employee drug testing law as applied to commercial pilots, and inferring "from the Federal Aviation Act an unmistakably clear intent to occupy the field of pilot regulation related to air safety, to the exclusion of state law"); see also Abdullah, 181 F.3d at 367 ("[T]he FAA and relevant federal regulations establish complete and thorough safety standards for interstate and international transportation that are not subject to supplementation by, or variation among, jurisdictions.").
(2) Federal Interests and Goals
The Federal Aviation Act embodies Congress' goals and interests in the field of airline transportation. The following statement in the Senate Report on the Act provides a clear expression of Congress' intent to grant to the FAA complete regulatory power over this field:
[A]viation is unique among transportation industries in its relation to the federal governmentit is the only one whose operations are conducted almost wholly within federal jurisdiction, and are subject to little or no regulation by States or local authorities. Thus the federal government bears virtually complete responsibility for the promotion and supervision of this industry in the public interest.
Abdullah, 181 F.3d at 368 (citing S.Rep. No. 1811, 85th Cong., 2d Sess. 5 (1958)) (emphasis added). The House Report reenforces the Senate's view, stating that the "administration of the new Federal Aviation Agency (1) would be given full responsibility and authority for the... promulgation and enforcement of safety regulations...." French, 869 F.2d at 5 (citing H.R.Rep. No. 2360, 85th Cong., 2d Sess., 22, reprinted in 1958 U.S.C.C.A.N. 3741, 3741).
The FAA, pursuant to its interpretation of its Congressional authority to preempt the states in certain areas, has stated that pursuant to an "analysis of the legislative history of the Federal Aviation Act and recognition of the comprehensive regulatory scheme governing aviation ... courts throughout the country have recognized a *1344 Congressional intent to preclude supplementation by the States." [18] (See Oct. 15, 2002 Letter from FAA Deputy Chief Counsel to Gen. Counsel of Aircraft Owners and Pilots Assoc., [DE-3], Exh. K). Additionally, the Airways Modernization Board Chairman, representing the Executive Branch before the House during its consideration of the Act, declared that "[i]t is essential that one agency of government, and one agency alone, be responsible for issuing safety regulations if we are to have timely and effective guidelines for safety in aviation." Abdullah, 181 F.3d at 369 (citing 1958 U.S.C.C.A.N. at 3761). This dominant federal interest in uniform, nationwide standards is especially important when dealing with federally certified pilots operating commercial aircraft in interstate commerce. If the states were free to regulate in this area, "a patchwork of state laws... some in conflict with each other, would create a crazyquilt effect." French, 869 F.2d at 6.
It is important to note that this federal regulatory scheme has explicitly saved certain State actions from preemption. Where there is "actual loss of life, injury, or damage to property," the FAA recognizes the State's interest in protecting its citizens from a pilot's misuse of alcohol. See 14 C.F.R. Pt. 121, App. I, § XI (B). Therefore, State action is appropriate and authorized where a pilot's actions result in actual loss of life, injury, or damage to property. Had the actions of Hughes and Cloyd produced such consequences, there would be nothing to shield them from the full police powers of the State. However, Respondents concede that, fortunately, Hughes and Cloyd did not cause any harm to any person or property. Thus, because of the dominant federal interest in uniformity of pilot qualification regulation, the goals of Congress in creating the FAA, and the pervasive FAA regulatory scheme, it is readily apparent that the federal government has preempted the field of pilot qualifications in regularly scheduled commercial interstate flights where there is no actual loss of life, injury or damage to property.[19]
*1345 C. Express Preemption
In addition to preempting the field, the FAA has expressly preempted certain State laws. Express preemption exists where a federal statute contains explicit preemptive language. Meadows, 304 F.3d at 1205. The Supreme Court has also held that "Federal regulations have no less preemptive effect than federal statutes." Cuesta, 458 U.S. at 153-54, 102 S.Ct. 3014 ("Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily."). Thus, the first question in an express preemption inquiry involving administrative regulations is whether Congress has granted authority to the FAA to regulate in the area of the qualifications of commercial pilots in interstate commerce. Assuming that question is answered affirmatively, the question becomes whether the FAA has used that power to preempt the state laws at issue here.
As discussed above, Congress has granted the FAA the power to regulate the field of commercial pilot qualifications to promote safety in interstate air commerce and national security. See supra sec. IV. 13.(1). Pursuant to this grant of power, the FAA has done so. Especially pertinent here is 14 C.F.R. Pt. 121, Appendix I, § XI, which contains explicit language preempting the States in certain areas.[20] 14 C.F.R. Pt. 121, App. I, § XI expressly provides:
A. The issuance of 14 CFR parts 65, 121, and 135 by the FAA preempts any state or local law, rule, regulation, order, or standard covering the subject matter of 14 CFR parts 65, 121, and 135, including but not limited to, drug testing of aviation personnel performing safetysensitive functions.
B. The issuance of 14 CFR parts 65, 121, and 135 does not preempt provisions of state criminal law that impose sanctions for reckless conduct of an individual that leads to actual loss of life, injury, or damage to property whether such provisions apply specifically to aviation employees or generally to the public, (emphasis added).
The plain language of this regulation expressly preempts all state criminal laws governing incidents that do not involve "actual loss of life, injury, or damage to property," and are covered in 14 C.F.R. parts 65, 121, or 135. See 14 C.F.R. Pt. 121, App. I, § XI. While Part 65 regulates certification of airmen other than flight crewmembers, Parts 121 and 135 regulate flight crewmembers.[21] Specifically, in a section entitled "Misuse of Alcohol," 14 C.F.R. §§ 121.458 and 135.253 prohibit flight crewmembers from using alcohol or having a blood alcohol level above 0.04 while performing safety-sensitive functions, performing their duties within 8 hours after using alcohol, or refusing to submit to alcohol testing.[22]
*1346 In sum, 14 C.F.R. Pt. 121, App. I, § XI expressly prevents the states from pursuing criminal charges for unlawful alcohol consumption against federally certified commercial pilots operating regularly scheduled commercial flights in interstate commerce. Therefore, it is readily apparent that the federal government's preemptive regulation expressly prevents the State from criminally prosecuting Hughes and Cloyd.[23]
V. CONCLUSION
Based upon the foregoing reasons, the Court holds that federal law preempts state law in the area of pilot qualifications and capacity to operate commercial aircraft in interstate commerce where there is no actual loss of life, injury, or damage to property. There are no allegations that Hughes and Cloyd caused actual injury to any persons or property. Therefore, the State lacks jurisdiction to prosecute them for matters that are solely within the jurisdiction of the federal government. Because federal preemption is readily apparent, the Court must not abstain in this case. Baggett, 717 F.2d at 524. Additionally, in light of the well-established Supreme Court precedent setting forth the rules governing field and express preemption, the State Courts unreasonably applied the federal preemption doctrine to the facts in this case. See French, 869 F.2d at 6 (noting in the context of pilot drug testing "[i]t is simply unreasonable to hypothesize that Congress intended a commercial pilot on a Providence-to-Baltimore-to-Miami run to be subject to drug testing say, in Maryland, but not in Rhode Island or in Florida"). Here, it is unreasonable to conclude that Congress intended Hughes and Cloyd to be subject to different state criminal laws governing blood-alcohol content as the aircraft traveled from Florida to Arizona.
It is important to note that this narrow holding does not preclude a state from pursuing a criminal prosecution where a commercial airline pilot's actions result in actual loss of life, injury, or damage to property. In addition, this decision is limited to the specific facts and circumstances of this case, and thus does not address the question of whether federal law preempts state law in the area of pilot qualification and capacity to operate any aircraft other than regularly scheduled commercial flights operating in interstate commerce. Accordingly, it is hereby
ORDERED that:
(1) The Petitioners Christopher Scott Hughes and Thomas Porter Cloyd's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 is GRANTED;
(2) The State Court shall discharge Christopher Scott Hughes and Thomas Porter Cloyd from the State's custody;
(3) The state criminal proceedings against Christopher Scott Hughes and Thomas Porter Cloyd are quashed;
(4) The State of Florida is enjoined from taking any further action against *1347 Christopher Scott Hughes and Thomas Porter Cloyd for the actions described in State of Florida v. Christopher Scott Hughes and Thomas Porter Cloyd, Case No. F02-019207B;
(5) The effect of this Order is stayed for thirty (30) days to permit any appeal; and
(6) This case is CLOSED.
NOTES
[1] Fla. Stat. § 316.193(1)(c) provides: (1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and: ... (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Fla. Stat. § 316.193(1)(c).
[2] Fla. Stat. § 860.13(1)(a) provides: (1) It shall be unlawful for any person: (a) To operate an aircraft in the air or on the ground or water while under the influence of: 1. Alcoholic beverages.... Fla. Stat. § 860.13(1)(a).
[3] On September 30, 2002, the State filed an Amended Information, adding one count of culpable negligence under Fla. Stat. § 784.05(1), which provides: (1) Whoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second de gree, punishable as provided in s. 775.082 or s. 775.083. Fla. Stat. § 784.05(1).
[4] At the conclusion of the October 23, 2002 hearing on Hughes and Cloyd's motion to dismiss, the State Court orally denied the motion as follows:
Listening to the arguments, reading the case and the supplemental authority, which counsel gave me last time, was interesting reading. Thank you, very much. I'm going to respectfully deny the motion to dismiss for lack of jurisdiction. Don't thin[k] it is applicable, in this case. The case law is pretty clear, around the country and even in our own federal circuit, giving us the authority in state court, here, in the State of Florida to prosecute these offenses.
Oct. 23, 2002 Tr. at 35.
[5] As both of the Third District Court of Appeal's decisions were issued without opinion, those Orders stand as the Orders of the highest court in the State. The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988).
[6] As a preliminary matter. Respondents object to Hughes and Cloyd naming the individual State Court judges as Respondents in this matter. Hughes and Cloyd, however, assert that the individual judges are properly named in this matter, as they are the state officials who have direct control and authority over Hughes and Cloyd who are presently out on bail. See Fla. Stat. § 903.02 (providing that only the judge who imposed the conditions of bail or the chief judge of the circuit in which the defendant is to be tried may remove or alter a condition of bail). In light of Fla. Stat. § 903.02, the Court finds that the state trial judge and the chief judge of the circuit are properly named parties, as they have control over altering the conditions of bail imposed on Hughes and Cloyd.
[7] The parties do not dispute that Hughes and Cloyd have met the threshold jurisdictional requirements for pursuing habeas relief under 28 U.S.C. § 2254. First, because Hughes and Cloyd have been released on bail pretrial with travel restrictions, they are "in custody" for purposes of 28 U.S.C. § 2254. See Hensley v. Municipal Court, San Jose Milpitas Judicial District, Santa Clara County, Cal, 411 U.S. 345, 347-49, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a defendant released on bail or his own recognizance is "in custody" for purposes of 28 U.S.C. § 2254). Second, Hughes and Cloyd have exhausted their state court remedies, as both the state Circuit Court and the Third District Court of Appeals have considered and denied their request to dismiss the Information on federal preemption grounds. Accordingly, the Court has jurisdiction to consider Hughes and Cloyd's petition under 28 U.S.C. § 2254. Additionally, 28 U.S.C. § 2241(c) provides that "[flhe writ of habeas corpus shall not extend to a prisoner unless... (3) He is in custody in violation of the Constitution or laws or treaties of the United States...." 28 U.S.C. § 2241(c)(3). For the reasons stated herein, the Court concludes that habeas relief is appropriate, as Petitioners are in custody in violation of the Supremacy Clause in Article VI, clause 2 of the United States Constitution.
[8] 49 U.S.C. § 44701(a) provides in relevant part:
(a) Promoting safety.The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing. . .
(5) regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security.
49 U.S.C. § 44701(a).
[9] 18 U.S.C. §§ 341-343 provide:
§ 341. Definitions
As used in this chapter, the term "common carrier" means a locomotive, a rail carrier, a sleeping car carrier, a bus transporting passengers in interstate commerce, a water common carrier, and an air common carrier. § 342. Operation of a common carrier under the influence of alcohol or drugs Whoever operates or directs the operation of a common carrier while under the influence of alcohol... shall be imprisoned not more than fifteen years or fined under this title, or both.
§ 343. Presumptions
For purposes of this chapter(1) an individual with a blood alcohol content of .10 percent or more shall be presumed to be under the influence of alcohol....
18 U.S.C. §§ 341-343.
[10] Hughes and Cloyd also argue that Congress has expressly preempted the field of law governing the qualifications and capacity of commercial pilots under 49 U.S.C. § 41713(b)(1), which provides:
Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
49 U.S.C. § 41713(b)(1). The Court finds this argument to be without merit because a "law related to a. . .service" clearly does not govern the qualifications and capacity of interstate commercial airline pilots in the performance of their duties.
[11] 28 U.S.C. § 2254(d) provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....
28 U.S.C. § 2254(d).
[12] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the Eleventh Circuit adopted as binding precedent all decisions of the Fifth Circuit rendered on or before September 30, 1981.
[13] Specifically, in finding federal preemption, the Eleventh Circuit relied on the terms of 46 U.S.C. § 364, which provides in relevant part that: "All coastwise seagoing vessels, and vessels navigating the Great Lakes, shall be subject to the navigation laws of the United States, when navigating within the jurisdiction thereof...." 46 U.S.C. § 364 (repealed 1983).
[14] A state court decision will be contrary to clearly established Supreme Court precedent if: (1) the state court applies a rule that contradicts the governing law set forth by the Supreme Court; or (2) the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. Alternatively, a state court decision involves an unreasonable application of clearly established Supreme Court precedent if: (1) the state court identifies the correct governing legal rule from the Supreme Court's cases, but unreasonably applies the rule to the facts of the petitioner's case; or (2) the state court unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407, 120 S.Ct. 1495.
[15] For example, in Wright, where the state court did not issue an opinion explaining the basis for its decision rejecting the petitioner's procedural due process claim, the Eleventh Circuit proceeded to analyze the petitioner's habeas petition under the "unreasonable application of" prong. Wright, 278 F.3d at 1256.
[16] 14 C.F.R. §§ 135.253 and 121.458 both provide in relevant part that: "No covered employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater."
[17] 14 C.F.R. § 13.23 provides in relevant part: "Sections 902 and 1203 of the Federal Aviation Act of 1958 [now codified as 49 U.S.C. 46316 and 46307], provide criminal penalties for any person who knowingly and willfully violates specified provisions of that Act, or any regulation or order issued under those provisions." For example, the Federal Aviation Act provides criminal penalties for registration violations involving aircraft not providing air transportation (49 U.S.C. § 46306), violation of national defense airspace (49 U.S.C. § 46307), interference with air navigation (49 U.S.C. § 46308), concession and price violations (49 U.S.C. § 46309), reporting and recordkeeping violations (49 U.S.C. § 46310), unlawful disclosure of information (49 U.S.C. § 46311), transporting hazardous material (49 U.S.C. § 46312), refusing to appear or produce records (49 U.S.C. § 46313), entering aircraft or airport area in violation of security requirements (49 U.S.C. § 46314), lighting violations involving transporting controlled substances by aircraft not providing air transportation (49 U.S.C. § 46315), and general criminal penalties when specific penalties are not provided (49 U.S.C. § 46316).
[18] While an administrative agency's own views of preemption are not dispositive on the issue, the Supreme Court has noted, that "the [Federal] agency's own views should make a difference" when determining if implied preemption exists. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 883, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (placing "some weight" on the Department of Transportation's suggestion that state actions based on automotive safety were preempted by federal law).
[19] Respondents cite a number of opinions in which various state courts have upheld state prosecutions of pilots for a variety of infractions against federal preemption arguments. See State of Minnesota v. Sherbrooke, 633 N.W.2d 856 (Minn.Ct.App.2001) (upholding state prosecution of pilot who unlawfully landed an airplane on the highway, and holding that "federal law does not preempt states from regulating the operation of an aircraft on a state highway"); State of Ohio v. Collins, 18 Ohio App.3d 72, 480 N.E.2d 1132 (1984) (upholding state prosecution of pilot who failed to exhibit his pilot's license upon demand of state police officer, and finding no pervasive federal regulatory scheme in area of pilot licensing); People v. Valenti, 200 Cal. Rptr. 862 (Cal.App.3d1984) (upholding state prosecution of pilot for unsafe operation of aircraft, and rejecting federal preemption argument); Marsh v. State of New Mexico, 95 N.M. 224, 620 P.2d 878 (N.M.1980) (upholding state prosecution of pilot who flew small plane with 479 pounds of marijuana over Valencia County, and holding that Federal Aviation Act does not preempt state prosecution for criminal offenses occurring in airspace over New Mexico); Ward v. State of Maryland, 280 Md. 485, 374 A.2d 1118 (1977) (upholding state prosecution of pilot for operating an aircraft in a reckless manner, and holding that the Federal Aviation Act did not preempt Maryland criminal laws). These non-binding cases in other jurisdictions are distinguishable on a variety of grounds, beginning with the fact that none of them involve pilots operating a regularly scheduled commercial airliner in interstate commerce, but rather all involve private pilots operating private aircraft. Additionally, Ward, which is the most factually similar case, in that it involves the piloting of an aircraft while under the influence of alcohol, was decided prior to Congress' enactment of 18 U.S.C. § 342 in 1986, and the FAA's promulgation of 14 C.F.R. Pt. 121, App. I, § XI in 1994.
[20] It appears that neither the Petitioners nor Respondents brought 14 C.F.R. Pt. 121, App. I, § XI to the State Courts' attention. In fact, it was only in a belated filing of Supplemental Authorities in Support of Response to Petition for Writ of Habeas Corpus, that Counsel for Respondents brought Appendix I to this Court's attention.
[21] Both of these sections apply to all employees listed as "covered employees" in 14 C.F.R. Pt. 121, App. J. This category includes any employee who performs "Flight crewmember duties," such as pilots.
[22] Although the State argues that 14 C.F.R. § 91.17 contradicts the preemptive language of 14 C.F.R. Pt. 121, App. I, § XI, a thorough reading of § 91.17 reveals that it does not. First, § 91.17 contains no language regarding preemption. Second, although § 91.17(c) mandates that crewmembers shall submit to State officers administering alcohol tests, this does not contradict the express preemption in 14 C.F.R. Pt. 121, App. I, § XI because the FAA made an exception for state prosecutions where there is actual loss of life, injury, or damage to property. In fact, § 91.17(e) provides for state officers to administer these tests in order to aid the federal government in enforcing its own regulations, and allows state administered tests to be used in the enforcement of federal law. This cooperative arrangement does not disrupt the balance set out in 14 C.F.R. Pt. 121, App. I, § XI.
[23] Given the fact that field and express preemption are readily apparent, it is not necessary to address conflict preemption.
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551 A.2d 15 (1988)
STATE
v.
David L. WALTERS.
No. 87-503-CA.
Supreme Court of Rhode Island.
December 9, 1988.
*16 James E. O'Neill, Atty. Gen., Jane McSoley, Asst. Atty. Gen., for plaintiff.
John F. Cicilline, Providence, for defendant.
OPINION
WEISBERGER, Justice.
This case comes before us on an appeal by the defendant, David L. Walters, from a judgment of conviction following a jury trial in Superior Court for second degree murder in the shooting death of Cornelius A. Riess, Jr. The defendant urges several grounds in support of his appeal. We need consider only one.
The defendant argues that the trial justice committed error by permitting the state to introduce evidence of a "trajectory check" conducted by Detective Sergeant Lawrence Campion of the East Greenwich police department. Detective Sergeant Campion testified that through the use of this so-called trajectory check he was able to determine the path of the bullet and, ultimately, where Walters was standing when the fatal shot was fired. Because the trajectory check lacks any scientific basis or indicia of reliability, we reverse. The facts of the case that are substantially undisputed are as follows.
At about 7:30 p.m. on November 28, 1984, Dennis St. Lawrence and Cornelius A. Riess, Jr., met at St. Lawrence's home. They had a beer before leaving for a liquor store where they cashed a small check and bought a six-pack of beer and a bottle of Schnapps. After consuming a couple of beers en route to the Rhode Island Mall, they went to Sears to buy a battery for Riess's car. From there, they went to Shenanigan's, a bar in East Greenwich, where they had a few more drinks and met Walters. St. Lawrence and Walters had been previously acquainted, and St. Lawrence introduced Walters to Riess. As they drank and conversed, Riess stated that he was carrying a check in the amount of more than $460 that he wanted to convert to cash. Walters informed Riess that the bartender at Shenanigan's probably would not cash a check that large and offered to cash the check for him. Walters explained that he could deposit the check into his account through an automatic teller, withdraw $300 in cash, and give Riess his personal check, less a $10 fee, for the balance. The trio proceeded to a nearby automatic teller at the Old Stone Bank.
Unable to retrieve more than $150 in cash, Walters then offered to pay Riess the balance of the value of his pay check by writing a check from his own account. Riess was reluctant, and Walters was somewhat agitated by Riess's apparent lack of trust in him. In any event they all agreed to go to Walters' house at 40 Power Street, East Greenwich, to continue the negotiations. Soon after their arrival and as they continued their beer drinking, the discussion escalated into a more heated exchange, and Walters momentarily left the dining area, only to return shortly thereafter with a loaded .357 caliber magnum that he either handed to or placed on the table in front of St. Lawrence. Not believing that Walters would bring a loaded gun into the already charged atmosphere, St. Lawrence decided to test the gun by firing *17 it into the floor. St. Lawrence testified that after the gun actually fired, he removed the bullets and returned the gun to Walters.
At this point the evidence diverges. According to St. Lawrence, he and Riess made a hasty exit from the dwelling. They got into Riess's car. After a slight delay Riess located his keys and began to back the car out of the driveway. At this point Walters emerged from the house, assumed a combat position in the driveway, carefully aimed his pistol, and fired a shot through the windshield of the car. The shot struck Riess in the chest, and after driving a short distance, he collapsed at the wheel and died thereafter.
Walters, who testified in his own behalf, recited a different version of these events. He testified that Riess left the dwelling and returned with a pair of combat devices known as nunchucks. Walters testified that Riess beat him with the nunchucks and knocked him to the floor. Thereafter, according to Walters, Riess and St. Lawrence left the house and got into Walters' vehicle. Walters took his gun[1] and went out into the driveway to remonstrate with St. Lawrence and Riess for being in his car. Thereupon Riess and St. Lawrence moved to the Riess car and began to back out of the driveway. At this point, when Walters was beside the car, attempting to communicate with Riess, he was struck by the side of the car in such fashion that not only did the car run over his foot but the gun accidentally discharged as he fell.
Thus a major factual issue in this case was whether Walters assumed a combat position to improve his aim and purposefully and deliberately fired at the Riess automobile, as St. Lawrence testified, or whether, as Walters testified, the gun accidentally discharged when he was struck by the automobile from a position beside the car as it pulled out of the driveway.
During the trial the prosecutor was permitted over objection to elicit testimony from Detective Sergeant Campion regarding the trajectory check he performed. He testified that he took a piece of string or rope and started it at the point in the driver's seat at approximately the height of the chest wound. He carried the string across the seat, passed it through the bullet hole near the inspection sticker on the passenger's side of the windshield, and drew it out beyond the passenger side fender of the car. Campion testified that by extending the rope out eight feet beyond the windshield, the rope would reach the approximate shoulder height of a man five-foot-eleven-inches tall. His testimony supported that of St. Lawrence, that is, that Walters was standing in front of and some distance away from the car when the shot was fired.
Over defendant's objection the trial justice allowed Campion to describe his "test" procedure and results. The trial justice indicated that Campion was not testifying about his expertise in firearms but was merely indicating "the flight of the projectile." Because this trajectory check lacked any scientific basis and because a jury might be inclined to give weight to the apparent opinion testimony of a seasoned and experienced police officer describing his investigative methods, we hold that its admission constituted reversible error.
This evidence would have no probative value whatever unless the jurors were allowed to infer that (1) the trajectory check was scientifically adequate to indicate the location from which the shot was fired and (2) Campion had special qualifications to conduct such an experiment and to base an opinion thereon. The state did not establish either of these threshold requirements of relevance and competence. Although the state argues that the trajectory check constituted neither a scientific demonstration nor an expert conclusion, it is manifest that if it fit into neither of these categories, it would be totally irrelevant. It would then not tend to prove or disprove the *18 existence of a fact in issue in the case. See, e.g., Abbey Medical/Abbey Rents, Inc. v. Mignacca, 471 A.2d 189 (R.I. 1984); Lacey v. Edgewood Home Builders, Inc., 446 A.2d 1017 (R.I. 1982); State v. Barnville, 445 A.2d 298 (R.I. 1982); Capezza v. Hertz Equipment Rental Corp., 118 R.I. 1, 371 A.2d 269 (1977).
Consequently, if the evidence were to meet the threshold requirements of relevance, it would do so by virtue of its probative value in establishing in a reliable manner the probable flight path of the fatal bullet from point of origin to the point where it struck the victim as he backed his car out of the driveway. Matters concerning ballistics and trajectory are generally not within the common knowledge of the average person. See State v. Benton, 413 A.2d 104, 112-13 (R.I. 1980). If opinion evidence is to be submitted in respect to such an issue, it would be by virtue of the special knowledge, skill, or information of the witness. Only then could the witness serve as an aid to the jury in its resolution of the factual issues in dispute. State v. Wheeler, 496 A.2d 1382 (R.I. 1985); Morgan v. Washington Trust Co., 105 R.I. 13, 249 A.2d 48 (1969).
Since the witness in the case at bar purported to describe a test or demonstration designed to track a bullet's trajectory, it would be necessary to determine whether such a test has sufficient indicia of reliability so that it will contribute to the search for truth as opposed to exercising its potential to mislead the jury. The trial justice must determine that the value to be derived from the proposed testimony justifies the admission of the opinion evidence. Morgan, 105 R.I. at 18, 249 A.2d at 51. The trial justice must also give due consideration to the natural tendency of jurors to place greater weight on the testimony of one who appears to be qualified as an expert. Wheeler, 496 A.2d at 1388.
We have often stated that this court has been open to evidence of developments in science that would tend to assist the trier of fact. "This court has never been hostile to the proof of fact by evidence relating to scientific tests or experiments." State v. Dery, 545 A.2d 1014, 1017 (R.I. 1988); Wheeler, 496 A.2d at 1388; Powers v. Carvalho, 109 R.I. 120, 125, 281 A.2d 298, 300 (1971).
However, we have rejected efforts to utilize testimony concerning unreliable tests lacking in true probative value for any purpose. Dery, 545 A.2d at 1017. We are mindful of the requirement that in order to be admitted, a purported scientific test must be of "substantial probative value." Montuori v. Narragansett Electric Co., 418 A.2d 5, 10 (R.I. 1980).
The state argued at the time this evidence was presented to the trial court that it was not really expert testimony or scientific evidence. This argument compels us to the conclusion that such opinion evidence should not have been allowed under any theory. We have characterized opinion evidence offered by police officers on matters that did not warrant expert testimony as the placing of unnecessary and irrelevant evidence before the jury. State v. Desmarais, 479 A.2d 745, 748 (R.I. 1984); State v. Nicoletti, 471 A.2d 613, 617 (R.I. 1984).
In these latter cases we determined that permitting the introduction of opinion evidence on subject matter that encroached upon the jury's function in determining the credibility of witnesses constituted reversible error. We are constrained to a similar conclusion in the case at bar. The trial justice has no discretionary power to permit non-expert opinion evidence that would be perceived by the jurors as having an aura of scientific expertise and be used by them to resolve a crucial and disputed issue in the case.
We should note in passing that a later witness in the case, James E. McDonald, director of the crime laboratory for the police department of the city of Waterbury, Connecticut, and a former lieutenant commander of the Connecticut State Police Crime Laboratory (who apparently had significant qualifications in the field of ballistics based on 40 years of study and experience), testified that one cannot "determine trajectory by running a line through a window hole, when a projectile terminated its *19 flight by going through glass. That cannot be done that way." Although this expert testimony might be argued to have rebutted the testimony of Detective Sergeant Campion, it could not be said to have cured the misleading effects of an experiment that had not even a scintilla of indicia of reliability to support its admission. The witness was not competent to give an opinion.[2] The experiment or demonstration to which he testified was meaningless, but as in State v. Desmarais and State v. Nicoletti, we cannot wholly discount the strong probability of its having a misleading effect upon the jurors.
In light of our determination of this issue, it is unnecessary to respond to other issues raised by the defendant.
For the reasons stated, the defendant's appeal is sustained, the judgment of conviction is hereby vacated. The papers in the case are remanded to the Superior Court for a new trial.
NOTES
[1] Walters testified that the gun had been on the hutch in the living room for years, untouched, and that he was unaware that the gun was loaded when he presented it to St. Lawrence. Walters denied that he saw St. Lawrence unload the gun or that he (Walters) ever reloaded the gun prior to leaving the house.
[2] This case was tried in February 1987. Therefore, Rhode Island Rules of Evidence made effective October 1, 1987, were not applicable. However, Rule 702 would not have changed the result of this opinion. Rule 702 states unequivocally:
"Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion."
In the case at bar it is clear on this record that Detective Sergeant Campion had no scientific, technical, or other specialized knowledge and that his trajectory check had utterly no basis in reliability that would meet the threshold test of admissibility. See United States v. Williams, 583 F.2d 1194 (2d. Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979), in which the court applied criteria for admissibility of a spectograph test under Federal Rule 702 (identical to Rhode Island Rule 702) which included "probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice, or confuse the jury on the other * * *." 583 F.2d at 1198.
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368 F.3d 1246
James R. MILLSAP; Jose Ramon; Cathy Kirby; Lawrence Wilson; Wanda Hunter; Rita Owens; Bob Kephart; Jim Cooper; Howard Bowlin; and Ray Peterson, for themselves and all others similarly situated, Plaintiffs-Appellees,v.McDONNELL DOUGLAS CORPORATION, Defendant-Appellant.United States Secretary of Labor; American Association of Retired People; United States Chamber of Commerce, Amici Curiae.
No. 03-5124.
United States Court of Appeals, Tenth Circuit.
May 21, 2004.
Paul W. Mollica of Meites, Mulder, Burger & Mollica, Chicago, IL (Thomas R. Meites, Michael M. Mulder, and Josie Raimond of Meites, Mulder, Burger & Mollica, Chicago, IL; Joseph R. Farris, Paula J. Quillan, and Jody R. Nathan of Feldman, Franden, Woodard, Farris & Boudreaux, Tulsa, OK; Bill Brumley of Brumley & Bishop, Tulsa, OK; and Christopher G. Mackaronis of Bell, Boyd & Lloyd, Washington D.C., with him on the briefs) for Plaintiffs-Appellees.
Thomas E. Wack of Bryan Cave, LLP, St. Louis, MO (Daniel S. Hoffman and Sean Connelly of Hoffman, Reilly, Pozner & Williamson LLP, Denver, CO; John W. Walbran of McDonnell-Douglas Corporation, St. Louis, MO, with him on the brief) for Defendant-Appellant.
Robin Springberg Parry of the United States Department of Labor, Washington D.C. (Howard M. Radzely, Acting Solicitor of Labor, Timothy D. Hauser, Associate Solicitor, Elizabeth Hopkins, and Mark E. Papadopoulos of the United States Department of Labor, Washington D.C., on the brief) for amicus curiae United States Secretary of Labor in support of Plaintiffs-Appellees.
Mary Ellen Signorille and Melvin R. Radowitz, Washington D.C., for amicus curiae American Association of Retired People in support of Plaintiffs-Appellees.
William J. Kilberg, Mark A. Perry, and Joseph B. Maher, of Gibson, Dunn & Crutcher LLP, Washington D.C.; Stephen A. Bokat and Ellen Dunham Bryant of the National Chamber Litigation Center, Washington D.C., for amicus curiae United States Chamber of Commerce in support of Defendant-Appellant.
Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.*
BALDOCK, Circuit Judge.
1
Section 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (ERISA), proscribes interference with a participant's rights under a qualified benefit plan. Section 502(a)(3) of ERISA provides the plan participant with his exclusive remedies for a § 510 violation. Under § 502(a)(3), the participant may bring a civil action to (1) enjoin any act or practice which violates any provision of Title I of ERISA or the terms of the plan, or (2) obtain other appropriate equitable relief to redress such violations or enforce any provisions of Title I of ERISA or the terms of the plan. 29 U.S.C. § 1132(a)(3). We granted Defendant McDonnell Douglas Corporation's petition for interlocutory appeal in this class action to decide a controlling issue of law involving § 502(a)(3). See 28 U.S.C. § 1292(b); Fed. R.App. P. 5(a). The parties stipulated to and the district court certified the following issue for review:
2
[W]hether, in this ERISA § 510 case and as a result of Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), backpay (and, as a result, any other damages based upon backpay) are available as "appropriate equitable relief" to the class members pursuant to ERISA § 502(a)(3).
3
The district court answered yes and denied Defendant's motion seeking to preclude backpay as a potential remedy for the class. Reviewing the district court's resolution of the question of law de novo, we answer no and reverse.
I.
4
The facts are undisputed. Defendant manufactured and assembled military aircraft at a plant in Tulsa, Oklahoma. Defendant's employees at the plant participated in pension and/or health care plans qualified under ERISA. Defendant announced the closing of the Tulsa plant in December 1993. Defendant subsequently laid off all employees at the Tulsa plant. The Plaintiff class consists of 1,074 of those employees. Plaintiffs filed this action in 1994 alleging Defendant violated § 510 of ERISA. Section 510 provides in relevant part: "It shall be unlawful for any person to discharge ... or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan [or Title I of ERISA.]" 29 U.S.C. § 1140. According to the complaint, Defendant closed the Tulsa plant to prevent Plaintiffs from attaining eligibility for benefits under their pension and health care plans. Plaintiffs requested damages, an order requiring Defendant to make restitution to their benefit plans, and any other equitable or remedial relief.1
5
The district court bifurcated the case into liability and remedial phases. The case proceeded to trial on the issue of Defendant's liability under ERISA § 510. After a ten day bench trial, the district court concluded Defendant violated § 510. The court entered a thorough published order pursuant to Fed.R.Civ.P. 52(a) reciting its findings and conclusions. Millsap v. McDonnell-Douglas Corp., 162 F.Supp.2d 1262 (N.D.Okla.2001). We need not repeat all those findings and conclusions here.2 For purposes of this appeal, the district court's conclusion Defendant violated § 510 in closing the Tulsa plant is undisputed.
6
In the remedial phase, Plaintiffs argued Defendant's violation of § 510 entitled the class to lost benefits, backpay, and reinstatement (or front pay in lieu of reinstatement), among other things. Defendant disagreed and filed motions to preclude an award of reinstatement, front pay, and backpay under ERISA. The district court denied Defendant's motion on the availability of backpay, but granted Defendant's motion to preclude reinstatement and front pay. Millsap v. McDonnell Douglas Corp., No. 94-CV-633-H, 2002 WL 31386076 (N.D.Okla. Sept.25, 2002) (unpublished disposition). The court reasoned the circumstances of this case made reinstatement impossible and front pay inappropriate because the court could not conclude that but for Defendant's discriminatory conduct the Tulsa plant would still be open. The district court held, however, Plaintiffs could recover backpay because the award constituted "equitable relief" under ERISA § 502(a)(3). The court reasoned backpay constituted "equitable restitution" or alternatively could be awarded because Plaintiffs sought backpay in conjunction with lost pension benefits, lost vacation pay, lost insurance, and reinstatement or front pay.
7
The parties subsequently entered into a "Stipulation of Settlement." The settlement compensates Plaintiffs in the amount of $36 million for their lost pension and health care benefits. The settlement stipulation requires judicial resolution of the availability of backpay under ERISA § 502(a)(3). The district court approved the settlement, see Fed.R.Civ.P. 23(e), and certified the controlling question of law for appeal. See 28 U.S.C. § 1292(b). We granted the parties permission to appeal on the narrow issue certified.3
II.
8
ERISA regulates employee pension and welfare benefit plans. See 29 U.S.C. §§ 1002(1)-(2), 1003(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Congress designed ERISA "to promote the interests of employees and their beneficiaries in employee benefit plans." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (internal quotations and citation omitted). ERISA's "complex and detailed" statutory scheme "resolved innumerable disputes between powerful competing interests — not all in favor of potential plaintiffs." Mertens v. Hewitt Assoc., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). Federal courts interpreting ERISA must take into account those competing interests, "such as Congress' desire to offer employees enhanced protection for their benefits, on the one hand, and, on the other, its desire not to create a system that is so complex that administrative costs, or litigation expenses, unduly discourage employers from offering welfare benefit plans in the first place." Varity Corp. v. Howe, 516 U.S. 489, 497, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); see also Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996) (explaining ERISA does not require employers to establish employee benefit plans or a certain level of benefits under a plan).
9
ERISA's civil enforcement scheme, 29 U.S.C. § 1132, consists of several carefully integrated provisions. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). The Court explained:
10
Under the civil enforcement provisions of § 502(a), a plan participant or beneficiary may sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits. Relief may take the form of accrued benefits due, a declaratory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits.
11
Pilot Life, 481 U.S. at 53, 107 S.Ct. 1549. "Congress intended § 502(a) to be the exclusive remedy for rights guaranteed under ERISA, including those provided by § 510[.]" Ingersoll-Rand, 498 U.S. at 144; see also Zimmerman v. Sloss Equip., Inc., 72 F.3d 822, 828 (10th Cir.1995).
12
The Supreme Court has repeatedly emphasized that Congress' deliberate care in comprehensively drafting ERISA's enforcement scheme "provide[s] strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Russell, 473 U.S. at 146, 105 S.Ct. 3085; see also Great-West, 534 U.S. at 209, 122 S.Ct. 708; Mertens, 508 U.S. at 254, 113 S.Ct. 2063; Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 247, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000); Pilot Life, 481 U.S. at 54, 107 S.Ct. 1549. The Court has been equally consistent in its reluctance to tamper with ERISA's enforcement scheme because "`[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.'" Russell, 473 U.S. at 147, 105 S.Ct. 3085 (quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). The exclusivity of § 502(a)'s remedial provisions is consistent with ERISA's plain language and legislative history. Pilot Life, 481 U.S. at 54-55, 107 S.Ct. 1549.
A.
13
"In ERISA cases, as in any case of statutory construction, our analysis begins with the language of the statute." Harris Trust, 530 U.S. at 254, 120 S.Ct. 2180 (internal quotations and brackets omitted). ERISA § 502(a)(3) provides: A civil action may be brought ... by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [Title I of ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [Title I of ERISA] or the terms of the plan[.]
14
29 U.S.C. § 1132(a)(3) (emphasis added). In Mertens and Great-West, the Supreme Court made clear only equitable relief is available under § 502(a)(3). The Court laid to rest any suggestion that other relief may also be available under § 502(a)(3).
15
In Mertens, the plaintiff class sought monetary relief under § 502(a)(3) for losses to their employee benefit plan as a result of a non-fiduciary defendant's knowing participation in a breach of fiduciary duty. Plaintiffs argued their request for monetary relief constituted "equitable relief" under § 502(a)(3) because common law courts of equity had exclusive jurisdiction over virtually all actions by beneficiaries for breach of trust. Plaintiffs also pointed out that equity courts had the power to award money damages against the trustee and third persons who knowingly participated in the trustee's breach. Mertens, 508 U.S. at 255-56, 113 S.Ct. 2063. The Court rejected plaintiffs' argument for two reasons.
16
First, the Court interpreted the phrase "equitable relief" in § 502(a)(3) as referring only "to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Id. at 256, 113 S.Ct. 2063. The Court explained:
17
Since all relief available for breach of trust could be obtained from a court of equity, limiting the sort of relief obtainable under § 502(a)(3) to "equitable relief" in the sense of "whatever relief a common-law court of equity could provide in such a case" would limit the relief not at all. We will not read the statute to render the modifier superfluous.
18
Id. at 257-58, 113 S.Ct. 2063 (footnote omitted). Second, the Court found plaintiffs' proposed interpretation of § 502(a)(3) inconsistent with ERISA's overall statutory scheme, which distinguished "equitable" from "remedial" relief in § 409(a), and "equitable" from "legal" relief in § 502(g)(2)(E) and other ERISA provisions, namely 29 U.S.C. §§ 1024(a)(5)(C), 1303(e)(1), 1451(a)(1). Id. at 258-59, 113 S.Ct. 2063. The Court held plaintiffs could not recover under § 502(a)(3) because they sought legal relief, compensatory damages, not typically available in equity. Id. at 255-56, 263, 113 S.Ct. 2063.
19
In Great-West, the Court again considered the type of relief typically available in equity. There, the defendant was a beneficiary of an ERISA qualified plan. The defendant-beneficiary was injured in an automobile accident. The plan covered $411,157 of defendant-beneficiary's medical expenses. The plaintiff-insurance company paid the majority of those expenses pursuant to an insurance agreement with the plan. Thereafter, the defendant-beneficiary filed suit in state court against the manufacturer of the car she was riding in at the time of the accident and ultimately settled her claim for $650,000. Great-West, 534 U.S. at 207-08, 122 S.Ct. 708.
20
The defendant-beneficiary's plan included a reimbursement provision. The reimbursement provision provided the plan with the right to recover any benefit payments recovered from a third party. The provision also imposed personal liability on the beneficiary up to the amount recovered from a third party if the beneficiary failed to reimburse the plan. The plan assigned the right to enforce the reimbursement provision to the insurance company. The insurance company filed suit under ERISA § 502(a)(3) to recoup $411,157 under the plan's reimbursement provision because the defendant-beneficiary only allocated $13,829 of the settlement to satisfy the insurance company's claim under that provision. Id.
21
The Court held the insurance company could not maintain its action under § 502(a)(3) because it sought, "in essence, to impose personal liability on [defendant] for a contractual obligation to pay money — relief that was not typically available in equity." Id. at 210, 122 S.Ct. 708. As in Mertens, the Court again "rejected a reading of the statute that would extend the relief obtainable under § 502(a)(3) to whatever relief a court of equity is empowered to provide in the particular case at issue (which could include legal remedies that would otherwise be beyond the scope of the equity court's authority)." Id. In so holding, the Court refused to adjust ERISA's carefully crafted and detailed enforcement scheme. Id. at 221, 122 S.Ct. 708.
22
The insurance company's claim was not "typically available in equity," and thus not actionable under § 502(a)(3). Id. at 210, 122 S.Ct. 708. The insurance company only sought legal relief — money damages — for defendant's breach of duty. Id. The Court explained that "[a]lmost invariably... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for `money damages,' as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant's breach of legal duty." Id. (emphasis added, internal quotations and citation omitted).
23
Thus, the question under § 502(a)(3) in this case is whether Plaintiffs' requested relief was "typically available in equity." Mertens, 508 U.S. at 256, 113 S.Ct. 2063; Great-West, 534 U.S. at 210, 122 S.Ct. 708. Answering this question requires us to consider "the general types of relief provided by courts of law and equity." Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 571 n. 8, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). "[C]onsulting... standard current works such as Dobbs, Palmer, Corbin, and the Restatements, [will ordinarily] make the answer clear." Great-West, 534 U.S. at 217, 122 S.Ct. 708.4
B.
24
The backpay Plaintiffs seek is a creature of positive law; that is, the remedy of backpay did not exist at common law. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893 (1937); Bertot v. School Dist. No. 1, Albany County, 613 F.2d 245, 250 (10th Cir.1979) (en banc). Backpay claims, however, "do not differ remedially from the personal injury claim for lost wages, or the contract claim for past wages due[.]" 2 Dan B. Dobbs, Law of Remedies § 6.10(5) (1993); see also 1 George E. Palmer, Law of Restitution § 4.1 (1978 & Supp.2003) (describing a claim for breach of personal services contract as sounding in quasi-contract for money damages). A backpay claim is remedially analogous to personal injury or breach of contract claims because backpay awards compensate employees for lost wages and benefits before trial.5 Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 964 (10th Cir.2002); 2 Henry H. Perritt, Jr., Employee Dismissal Law and Practice § 9.46 (4th ed.1998); Robert Belton, Remedies in Employment Discrimination Law § 9.3 (1992); Dobbs, Law of Remedies § 6.10(5) at 227 n. 15. Backpay is compensatory because the award is measured by an employee's loss rather than an employer's gain. Id.; Ford, 458 U.S. at 229, 102 S.Ct. 3057 (noting that "paying backpay damages is like paying an extra worker who never came to work"); Albemarle Paper Co., 422 U.S. at 440, 95 S.Ct. 2362 (Marshall, J., concurring) (explaining that backpay under Title VII is generally computed by determining the amount of compensation lost as a direct result of the employer's discriminatory action).
25
"The Court has recognized that compensation is a purpose `traditionally associated with legal relief.'" City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710-11, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (quoting Feltner, 523 U.S. at 352, 118 S.Ct. 1279); see also Dobbs, The Law of Remedies § 6.10(5) at 227 n. 15 ("Backpay is an element of compensation ... a traditional function of damages at law."). An award of backpay, without more, is therefore in the nature of compensatory damages.6 See Terry, 494 U.S. at 570, 110 S.Ct. 1339 (explaining "the only remedy sought is a request for compensatory damages representing backpay and benefits."); Waldrop v. Southern Co. Serv., Inc., 24 F.3d 152, 158 (11th Cir.1994) (noting "that it has long been the general rule that back wages are legal relief in the nature of compensatory damages."); Dobbs, The Law of Remedies § 6.10(5) at 226 (noting backpay is an ordinary damages claim). "Generally, an award of money damages was the traditional form of relief offered in the courts of law." Wooddell v. Intern'l Brotherhood of Elec. Workers, Local 71, 502 U.S. 93, 97, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) (emphasis added); Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Mertens, 508 U.S. at 255, 113 S.Ct. 2063 ("Money damages are, of course, the classic form of legal relief."); 1 John N. Pomeroy, A Treatise on Equity Jurisprudence § 237d (5th ed.1941) (explaining "[t]he award of mere compensatory damages... is a remedy peculiarly belonging to the province of the law courts[.]") Thus, a claim for backpay is "almost an exemplar of a claim at law." Dobbs, The Law of Remedies § 6.10(5) at 226; see also Colleen P. Murphy, Misclassifying Monetary Restitution, 55 SMU L.Rev. 1577, 1633 (2002) ("The backpay remedy is more appropriately characterized as damages for plaintiffs losses and thus legal relief.").7
26
In this case, Plaintiffs seek backpay from the date of the Tulsa plant's closure through the date of trial. Plaintiffs propose to calculate their backpay award based on the compensation each individual class member would have earned during the backpay period. Plaintiffs argue they are entitled to backpay to make them whole for Defendant's wrongful termination. Based on Plaintiffs' own method of calculation and arguments, we easily conclude Plaintiffs are simply seeking compensation for lost wages before trial. Plaintiffs' proposed method of calculating their backpay award is based on each individual class member's loss rather than Defendant's gain. Plaintiffs' freestanding claim for backpay is thus in the nature of compensatory damages. At common law, the award of compensatory damages was peculiarly within the province of the law courts. Plaintiffs' backpay claim is therefore appropriately classified as legal relief. Del Monte Dunes, 526 U.S. at 710-11, 119 S.Ct. 1624; Mertens, 508 U.S. at 255, 113 S.Ct. 2063.
III.
27
The only relief remaining available to Plaintiffs is compensatory damages representing backpay. Plaintiffs nevertheless argue their backpay claim is "equitable" for three reasons. First, Plaintiffs argue their backpay claim is equitable under "an exception to the general rule" that money damages constitute legal relief. See Terry, 494 U.S. at 570-71, 110 S.Ct. 1339. Second, Plaintiffs analogize § 502(a)(3) to Title VII § 706(g) and argue a backpay award under § 502(a)(3) is an integral part of the equitable remedy of reinstatement. See infra n. 16. Third, Plaintiffs argue backpay should be classified as "equitable" under § 502(a)(3) to further the purposes of ERISA and make them whole. Because the Supreme Court has rejected each of these arguments, we do the same.
A.
28
Plaintiffs first argue their backpay claim is equitable because it is a monetary award incidental to or intertwined with reinstatement.8 In Terry, 494 U.S. at 570-71, 110 S.Ct. 1339, the Supreme Court recognized two exceptions to the general rule that a monetary award constitutes legal relief.9 The relevant exception provides a monetary award incidental to or intertwined with injunctive relief may be characterized as equitable.10 Id. at 571, 110 S.Ct. 1339. Plaintiffs reliance on this exception is flawed.
29
In Terry, 494 U.S. at 571, 110 S.Ct. 1339, the Court held the incidental to or intertwined with exception did not apply where the plaintiffs sought only backpay and benefits. There, plaintiffs requested reinstatement, but dismissed the claim when the remedy became impossible after their employer filed bankruptcy.11 Id. at 562-63, 110 S.Ct. 1339. The Court held the exception did not apply notwithstanding that plaintiffs had requested reinstatement at one time during the pendency of the action.12 Id. at 571, 110 S.Ct. 1339. In this case, the district court similarly dismissed Plaintiffs' reinstatement claim due to impossibility. Plaintiffs admit "[i]t was an artifact of this case proceeding years beyond possible reinstatement that left backpay and restoration of benefits as the only remedies." (Aple's Br. at 24 (emphasis added)). Notwithstanding the unfortunate delays inherent in modern litigation, see Ford Motor Co., 458 U.S. at 221, 102 S.Ct. 3057, the fact remains in this case "the only remedy sought is a request for compensatory damages representing backpay[.]" Terry, 494 U.S. at 570, 110 S.Ct. 1339. Consequently, the facts necessary to support the incidental to or intertwined with exception are "clearly absent from the case." Id. at 571, 110 S.Ct. 1339; see also Hopkins v. Saunders, 199 F.3d 968, 977 (8th Cir.1999) (holding "[b]ecause the district court refused to grant [plaintiff] reinstatement or any other injunctive relief, the damage award was neither incidental to nor intertwined with any other relief.").
30
Plaintiffs also attempt to "re-classify" backpay as equitable relief because at common law an equity court had the power to award legal relief as an incident to equitable relief. See Pomeroy, Equity Jurisprudence §§ 181, 231 (explaining a court of equity could grant legal remedies in a case within the equity court's exclusive or concurrent jurisdiction). Plaintiffs' attempt fails. An equity court at common law did not have the power to award legal relief where, as here, equitable relief was unavailable. Id. § 237d. Moreover, even if an equity court had the power to provide Plaintiffs' requested legal relief, the Court in Mertens, 508 U.S. at 256-58, 113 S.Ct. 2063, and Great-West, 534 U.S. at 210, 122 S.Ct. 708, rejected a reading of § 502(a)(3) that would permit a plaintiff to obtain legal relief simply because an equity court had the power to provide such relief. Aside from these crucial points, Plaintiffs essentially concede backpay was not typically available in equity by proceeding under an exception to the general rule that a monetary award constitutes legal relief. An exception to a general rule is, by definition, atypical. See 5 Oxford English Dictionary 498 (2d ed.1989) (defining "exception" as, among other things, "something abnormal or unusual").
31
Even assuming a request for reinstatement remained in this case, the incidental to or intertwined with exception still would not apply. In Tull v. United States, 481 U.S. 412, 414-15, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), the Government sued a real estate developer seeking civil penalties and injunctive relief under the Clean Water Act. Defendant sold the property at issue making injunctive relief impractical. The Court held the incidental to or intertwined with exception did not apply. Id. at 424-25, 107 S.Ct. 1831. The Court reasoned the Government's claim for $22 million in civil penalties (legal claims) could not be considered "incidental" to the modest (and impracticable) equitable relief requested. Id. The Court further explained the Clean Water Act did not "intertwine" legal and equitable relief because "the Government was free to seek an equitable remedy in addition to, or independent of, legal relief." Id. at 425, 107 S.Ct. 1831.
32
Plaintiffs' backpay claim potentially exceeds $90 million.13 Like in Tull, the potential backpay award is not merely "incidental" to Plaintiffs' request for reinstatement. Moreover, § 502(a)(3) does not intertwine equitable relief with legal relief. "[R]einstatement and backpay are separate, independent kinds of relief, such that [Plaintiffs'] demand for reinstatement does not transform [their] backpay claim into equitable relief."14 Waldrop, 24 F.3d at 159 n. 11. Plaintiffs' backpay claim cannot be considered "intertwined" with their dismissed reinstatement claim because Plaintiffs could only seek equitable relief under § 502(a)(3). See Great-West, 534 U.S. at 221, 122 S.Ct. 708; Tull, 481 U.S. at 425, 107 S.Ct. 1831.15
B.
33
Plaintiffs next argue their backpay claim is equitable because Congress treated backpay as equitable in the NLRA and Title VII. The NLRA and Title VII provide an agency or court with the power to reinstate an employee with or without backpay.16 Plaintiffs analogize their ERISA § 510 claim to actions under the NLRA and Title VII. Plaintiffs then conclude Congress intended the remedies under each statute to be the same. Assuming Plaintiffs' premise — that ERISA § 510 was modeled in significant part after Title VII's substantive provisions — is correct, we nevertheless disagree with Plaintiffs' conclusion. Plaintiffs' conclusion is flawed because the remedial provisions of ERISA and Title VII are at issue, and in those provisions significant differences exist. See Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978).
1.
34
The Supreme Court has consistently, and most recently in Great-West, rejected analogies to Title VII's remedial provision in interpreting other federal anti-discrimination statutes that do not contain similar language. The primary reason such analogies are unhelpful is because Congress treated backpay in Title VII § 706(g) as part of an equitable remedy. Great-West, 534 U.S. at 218 n. 4, 122 S.Ct. 708. In § 706(g), Congress "`treated backpay as equitable' ... only in the narrow sense that it allowed backpay to be awarded together with equitable relief[.]" Id. (internal brackets omitted). In other words, § 706(g) permits an award of backpay together with reinstatement; and when a court orders such affirmative action, the relief may be characterized as equitable. Id. Title VII analogies are inappropriate, on the other hand, when the relief sought is simply a freestanding claim for money damages. Id.
35
For example, in Terry, 494 U.S. at 572, 110 S.Ct. 1339, the Court rejected an analogy to Title VII § 706(g) in considering a backpay claim for breach of the duty of fair representation brought under the Labor Management Relations Act. The Court rejected the analogy because Congress did not make backpay part of an equitable remedy for breach of the duty of fair representation. The Court noted the inappropriateness of the Title VII analogy because remedying the unfair labor practice differed from Title VII's remedial purpose. Id. at 573, 110 S.Ct. 1339. Likewise, in Curtis, 415 U.S. at 197, 94 S.Ct. 1005, the Court rejected an analogy to Title VII § 706(g) when it interpreted § 812 of the Fair Housing Act, 42 U.S.C. § 3612. The Court rejected the analogy because the language Congress used in § 706(g) "contrast[ed] sharply with § 812's simple authorization of an action for actual and punitive damages." Id. In Lorillard, 434 U.S. at 584-85, 98 S.Ct. 866, the Court again rejected an analogy to Title VII § 706(g) when it interpreted § 7 of the Age Discrimination in Employment Act, 29 U.S.C. § 626, because the statutory language of the two remedial provisions differed significantly.
2.
36
In ERISA § 502(a)(3), unlike Title VII § 706(g) and NLRA § 10(c), Congress did not specifically make backpay part of an equitable remedy.17 Compare 29 U.S.C. § 1132(a)(3) with 42 U.S.C. § 2000e-5(g) and 29 U.S.C. § 160(c); see also Great-West, 534 U.S. at 218 n. 4, 122 S.Ct. 708. Further, the remedial provisions of Title VII and the NLRA contrast sharply with § 502(a)(3)'s simple authorization of equitable relief. See Curtis, 415 U.S. at 197, 94 S.Ct. 1005. Although Congress may have modeled ERISA § 510 after Title VII's substantive provisions, this fact is irrelevant for purposes of interpreting the different remedial schemes under each statute. See Lorillard, 434 U.S. at 584, 98 S.Ct. 866.
37
Additionally, the purposes behind ERISA § 502(a)(3) and the NLRA § 10(c), and Title VII § 706(g), are not identical. The NLRA and Title VII seek to make a plaintiff whole for defendant's discriminatory action. Ford Motor Co., 458 U.S. at 230, 231 n. 15, 102 S.Ct. 3057; Landgraf v. USI Film Prod., 511 U.S. 244, 252-53, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In "sharp contrast," § 502(a)(3) seeks to "vindicate [a] different goal[,]" see Terry, 494 U.S. at 573, 110 S.Ct. 1339, namely, to equitably redress any act or practice that violates Title I of ERISA or the plan. Harris Trust, 530 U.S. at 246, 120 S.Ct. 2180; Great-West, 534 U.S. at 221, 122 S.Ct. 708. ERISA, unlike Title VII and the NLRA, is not a make-whole statute. Mertens, 508 U.S. at 253, 261-62, 113 S.Ct. 2063. As the Supreme Court explained, "[a] fair contextual reading of the statute makes it abundantly clear that its draftsmen were primarily concerned with possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary." Russell, 473 U.S. at 142, 105 S.Ct. 3085. We too have rejected claims for complete relief under ERISA because the statute's purpose is to protect the interests of participants in employee benefit plans. See Zimmerman, 72 F.3d at 828; 29 U.S.C. § 1001(b). Consequently, we must conclude that "[w]hatever may be the merit of the `equitable' characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory ... damages here as equitable relief." Curtis, 415 U.S. at 197, 94 S.Ct. 1005.18
C.
38
Plaintiffs lastly argue ERISA § 502(a)(3) authorizes backpay because ERISA § 510 protects jobs, in addition to benefits, and the remedy is therefore necessary to make the aggrieved worker whole and deter future violations of the statute. While "[w]e are not oblivious to the force of [Plaintiffs'] policy arguments[,]" Curtis, 415 U.S. at 198, 94 S.Ct. 1005, we are not persuaded that such considerations trump the plain language of § 502(a)(3). Plaintiffs' policy arguments are better addressed to Congress. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 733, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002).
39
First, as explained above, the remedial purpose of § 502(a) is not to make the aggrieved employee whole.19 Mertens, 508 U.S. at 253, 261-62, 113 S.Ct. 2063; Russell, 473 U.S. at 138, 142, 148, 105 S.Ct. 3085. Second, Plaintiffs' argument that backpay is necessary to deter "cheating employers" from violating ERISA § 510 goes too far. Remedies intended to punish or deter wrongdoers were issued in courts of law, not courts of equity. Tull, 481 U.S. at 422-23, 107 S.Ct. 1831. Third, Plaintiffs' reliance on Varity Corp., 516 U.S. at 515, 116 S.Ct. 1065, to argue § 502(a)(3) permits an award of legal relief has been rejected by the Supreme Court. Great-West, 534 U.S. at 221 n. 5, 122 S.Ct. 708. Plaintiffs remaining arguments dealing with vague notions of ERISA's basic purpose are inadequate to overcome the words Congress used in § 502(a)(3) regarding the specific issue under consideration. Id. at 220, 122 S.Ct. 708; Mertens, 508 U.S. at 261, 113 S.Ct. 2063.20
IV.
40
We are not unsympathetic to Plaintiffs' situation. We note there may have been other means, such as a claim for backpay under the Age Discrimination in Employment Act, for Plaintiffs to obtain the legal relief they sought here. See 29 U.S.C. § 626(b); Great-West, 534 U.S. at 220, 122 S.Ct. 708. ERISA, however, is clear. And we, like the Supreme Court, "are reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA." Russell, 473 U.S. at 147, 105 S.Ct. 3085. Section 502(a)(3), by its terms, only allows for equitable relief. Great-West, 534 U.S. at 221, 122 S.Ct. 708. Plaintiffs' freestanding claim for backpay — legal relief — is accordingly precluded by § 502(a)(3)'s plain terms. If exceptions to those terms are to be made, "it is for Congress to undertake that task." Guidry v. Sheet Metal Workers Nat'l Pension Fund, 493 U.S. 365, 376, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990).
41
Consistent with our answer to the question certified pursuant to 28 U.S.C. § 1292(b), the district court's order dated September 25, 2002 is REVERSED insofar as it denied Defendant's motion for summary judgment on the issue of backpay. We REMAND with instructions for the district court to enter an order granting Defendant's motion for summary judgment on the issue of backpay.
Notes:
*
Defendant McDonnell Douglas Corporation's October 22, 2003, unopposed motion to file a supplemental appendix is grantedSee 10th Cir. R. 30.2(B).
1
Plaintiffs primarily sought legal relief at the onset of this litigation. Plaintiffs specifically requested damages in their complaint and amended complaint, but did not mention reinstatement. Plaintiffs moved for and the district court certified adamage class action pursuant to Fed.R.Civ.P. 23(b)(3). Plaintiffs did not move for a class action under Fed.R.Civ.P. 23(b)(2), which permits class actions for declaratory or injunctive relief (such as reinstatement). See Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614-15, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Plaintiffs also moved for a jury trial on their ERISA § 510 claim. Plaintiffs abandoned their restitution claim in that motion and urged the court to handle any reinstatement claim (should the Tulsa plant reopen) as an "ancillary matter." Plaintiffs therefore argued they had the right to a jury because only their request for money damages remained. See infra n. 4. Thus, at the onset of the litigation, the focus of Plaintiffs' complaint was on the recovery of legal damages. See Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1444 (10th Cir.1998) (per curiam) (explaining the court must consider backpay as "in the nature of legal damages" when the focus of the plaintiff's complaint is primarily on the recovery of legal damages).
2
The district court found Defendant studied the correlation between closing a plant with a more senior workforce and maximizing a surplus from its pension plans. The Tulsa plant had, on average, the most senior workforce within the company. Defendant learned it stood to gain $24.7 million in pension and health care coverage savings if the Tulsa plant closed. Defendant thereafter closed the Tulsa plantMillsap, 162 F.Supp.2d at 1267-73.
3
Plaintiffs admitted in their brief that backpay and restoration of benefits are theonly remedies available in this case. (Aple's Br. at 24). Restoration of benefits is no longer an issue as a result of the parties' settlement. Plaintiffs are not seeking an injunction or mandamus under § 502(a)(3). Plaintiffs also conceded at oral argument, and made clear in their brief, that they are not seeking either equitable or legal restitution under § 502(a)(3). Additionally, Plaintiffs have not appealed the district court's holding that reinstatement and front pay are inappropriate or impossible remedies in this case, nor does the parties'"Stipulation of Settlement" provide a mechanism for Plaintiffs to appeal the district court's order denying reinstatement and front pay. At oral argument, Plaintiffs' counsel misrepresented the record and state of proceedings in the district court. When questioned by the panel regarding the Plaintiffs' decision not to appeal the denial of reinstatement, counsel responded that because this is an interlocutory appeal all other decisions — including the district court's order denying reinstatement — were preserved. The parties'"Stipulation of Settlement," however, conclusively demonstrates otherwise. The settlement provides the litigation is terminated if we determine backpay is unavailable unless the Supreme Court grants a writ of certiorari. (Aplt's App. at 475-76). The settlement further provides that if we determine backpay is a remedy in the case, absent the Supreme Court granting a writ of certiorari, the case will be "remanded for further proceedings and a determination of the amount of backpay, if any, after which either party may appeal from the judgment as to the amount of backpay and any other damages based on backpay and McDonnell Douglas may appeal from the Orders dated September 5, 2001 (liability) and September 25, 2002 (backpay)." (Id. at 476) (emphasis added). The settlement does not provide any procedure for Plaintiffs to appeal the district court's holding that reinstatement and front pay are inappropriate remedies in this case. (Id. at 476-77). Thus, this appeal only involves Plaintiffs' freestanding claim for backpay.
4
Federal courts also routinely examine whether a plaintiff's requested relief is legal or equitable in nature to determine the existence of the right to a jury trial under the Seventh AmendmentSee, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]" The Supreme Court has long "understood `Suits at common law' to refer `not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.'" Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 348, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (quoting Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830)).
5
The Supreme Court has described the compensatory nature of backpay under § 10(c) of the NLRA, 29 U.S.C. § 160(c), and § 706(g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g)See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) (explaining the National Labor Relations Board effectuates the remedial scheme of the NLRA by ordering compensation for lost wages); Albemarle Paper Co. v. Moody, 422 U.S. 405, 422, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (explaining bad faith is not an element of a Title VII backpay award lest the remedy would become punitive rather than compensatory); Ford Motor Co. v. EEOC, 458 U.S. 219, 230, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982) (explaining a secondary purpose of Title VII is to compensate employees for their injuries).
6
InBertot, we relied on an Eighth Circuit case interpreting Title VII to hold backpay is an element of equitable relief under 42 U.S.C. § 1983 when backpay is an integral part of the equitable remedy of reinstatement. 613 F.2d at 250. In Bertot, the district court ordered reinstatement. Id. at 247. We, of course, express no opinion on whether our classification of backpay under the factually (i.e., backpay ordered with reinstatement) and legally (i.e., arising under § 1983) distinguishable circumstances in Bertot is correct in light of the Supreme Court's subsequent pronouncements on the subject. See Great-West, 534 U.S. at 218 n. 4, 122 S.Ct. 708; Del Monte Dunes, 526 U.S. at 710, 119 S.Ct. 1624 (classifying a takings claim under § 1983 as legal). The dissent suggests we have turned our back on Bertot. (Dissent Op. at 1263). Much to the contrary, we simply do not see the utility in relying on a factually and legally distinguishable case to interpret ERISA § 502(a)(3) when controlling Supreme Court precedent exists.
7
The dissent states "the guidance provided by Dobbs is scant but suggests the conclusion that with respect to the class plaintiffs who were wrongfully discharged, the backpay remedy is equitable." (Dissent Op. at 1262). We quote Professor Dobbs at length to let the readers draw their own conclusions:
Reinstatement in a job appears to be equitable because such relief is essentially injunctive. But backpay seems on the surface to be an ordinary damages claim, almost an exemplar of a claim at law. Backpay claims do not differ remedially from the personal injury claim for lost wages, or the contract claim for past wages due, for example. So while reinstatement is clearly equitable as a form of injunctive relief, backpay seems to be just as clearly legal. On the basis of such observations, it would seem that a reinstatement claim standing alone would be tried to a judge without a jury while a backpay claim standing alone would be tried to a jury if one is demanded. If both kinds of relief are sought in a single case, the Dairy Queen rule would seem to require a jury trial on all common issues of fact — such as whether the discharge was discriminatory. But in fact the cases do not yield up to any single conclusion.
Dobbs, Law of Remedies § 6.10(5) at 226 (footnotes omitted); see also infra n. 9. Professor Dobbs then explains the different rules for determining when a jury trial attaches under different statutory provisions. Id. at 226-33. Professor Dobbs distinguishes between (1) cases arising under Title VII where backpay is generally considered equitable, id. at 193, 226-29, and (2) cases arising under other statutory provisions, such as the ADEA, where backpay is considered legal. Id. at 229-33.
8
The remedy of reinstatement is essentially injunctive relief. Dobbs,Law of Remedies § 6.10(5) at 226. The Court has made "clear that judgments compelling employment, reinstatement, or promotion are equitable[.]" Lorillard v. Pons, 434 U.S. 575, 583 n. 11, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (internal quotations and citation omitted); Great-West, 534 U.S. at 211 n. 1, 122 S.Ct. 708 (noting an injunction is inherently an equitable remedy).
9
The exception Plaintiffs did not argue on appeal provides damages are equitable when they are restitutionaryTerry, 494 U.S. at 570, 110 S.Ct. 1339. The dissent nevertheless finds solace in the restitutionary exception. (Dissent Op. at 1263). As Professor Dobbs explained, however, a characterization of backpay as restitutionary "appears to be doubly wrong, since a claim does not become equitable by being restitutionary and since backpay does not seem to fit the restitutionary category in any event." Dobbs, Law of Remedies § 6.10(5) at 227 (footnotes omitted). A backpay claim is not restitutionary because, as explained above, the nature of the remedy is to compensate and not to prevent unjust enrichment. Id. § 6.10(5) at 227 n. 15. The backpay Plaintiffs seek is not money the Defendant wrongfully withheld, but rather, wages they would have received absent their termination. "Such relief is not restitutionary." Terry, 494 U.S. at 571, 110 S.Ct. 1339. Simply characterizing backpay as restitutionary is of no avail either because the award, at best, constitutes legal restitution not typically available in equity. Great-West, 534 U.S. at 213-14, 218, 122 S.Ct. 708; see also Clair v. Harris Trust and Sav. Bank, 190 F.3d 495, 498 (7th Cir.1999); Helfrich v. PNC Bank, Ky., Inc., 267 F.3d 477, 482-83 (6th Cir.2001) (holding a plaintiff who denominated his requested relief under § 502(a)(3) as "restitution" while measuring that relief with reference to his losses rather than defendant's gain was precluded from recovering the money damages as equitable relief).
10
Plaintiffs use the terms "incidental" and "integral" interchangeably. (See Aple's Br. at 12-13, 22, 30). At oral argument, Plaintiffs' disclaimed reliance on the Supreme Court's "incidental to or intertwined with" exception. Instead, Plaintiffs argued that backpay was "integral" to their requested reinstatement. We agree with Professor Dobbs, however, that "if `integral' has any different meaning [from `incidental'] it is difficult to see what it could be." Dobbs, Law of Remedies § 6.10(5) at 227 n. 11.
11
Plaintiffs attempt to distinguishTerry on the ground the plaintiffs did not seek reinstatement in that case. (Aple's Br. at 18). The district court in Terry, however, specifically noted that "[i]n addition to requesting reinstatement and other injunctive relief[,] Plaintiffs seek punitive damages and other monetary relief for lost wages and health benefits and for mental and emotional distress." Terry v. Chauffeurs, Teamsters and Helpers, Local 391, 676 F.Supp. 659, 661 (M.D.N.C.1987) (emphasis added).
12
Relying onSkinner, 859 F.2d at 1444, the dissent suggests we should characterize backpay as equitable whenever the award is requested with reinstatement. (Dissent Op. at 1265-1266). Such a characterization is correct in Title VII and NLRA cases. See infra n. 16; West v. Gibson, 527 U.S. 212, 217, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999). The characterization is equally incorrect, as explained in Skinner, when backpay is claimed under another anti-discrimination statute, such as 42 U.S.C. § 1981, which does not classify backpay as equitable. Skinner, 859 F.2d at 1443-44. In any event, we rejected characterizing the backpay at issue in Skinner as equitable, despite the plaintiff's request for reinstatement, because the focus of the plaintiff's complaint was on the recovery of legal damages. Id. at 1444. Like Skinner, other courts considering the nature of backpay under employment statutes outside the context of Title VII and the NLRA have treated backpay as legal. See Lorillard, 434 U.S. at 583-84, 98 S.Ct. 866 (Age Discrimination in Employment Act); Wooddell, 502 U.S. at 97-98, 112 S.Ct. 494 (Labor Management Reporting and Disclosure Act); Diffee-Ford-Lincoln Mercury, 298 F.3d at 964-65 (Family Medical Leave Act); Waldrop, 24 F.3d at 159 (Rehabilitation Act); Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 749 (D.C.Cir.1995) (Airline Deregulation Act).
13
At oral argument, Plaintiffs did not dispute Defendant's backpay calculations when questioned regarding the incidental to or intertwined with exception. Rather, Plaintiffs disavowed reliance on the "incidental" portion of the exception
14
Plaintiffs reliance onAdams v. Cyprus Amax Minerals Co., 149 F.3d 1156, 1161-62 (10th Cir.1998) to argue backpay and reinstatement are intertwined is misplaced because backpay and reinstatement are independent types of relief. In Adams, we held plaintiffs' claim for benefits intertwined with equitable relief. There, plaintiffs only had a claim for benefits if the court declared them eligible beneficiaries under the ERISA plan. Id. In contrast, backpay and reinstatement are in no way dependent upon one another, and if § 502(a)(3) permitted it, Plaintiffs could obtain one without the other.
15
Plaintiffs also argue backpay is equitable because the award is "quintessentially discretionary relief." (Aple's Br. at 26). Plaintiffs' argument is off-mark because a federal court does not have discretion to award legal relief under § 502(a)(3)Great-West, 534 U.S. at 221, 122 S.Ct. 708. Thus, while "[d]iscretion is indeed characteristic of equity," such characteristic is irrelevant here because "the power to exercise discretion occurs only when the case is found to be equitable; discretionary power does not trigger equity, it results from equity." Dobbs, Law of Remedies § 2.6(3) at 155 n. 1.
16
"Section 10(c) of the [NLRA] empowers the Board, when it finds that an unfair labor practice has been committed, to issue an order requiring the violator to `cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies' of the NLRA."Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984) (quoting 29 U.S.C. § 160(c)). Section 706(g) of Title VII empowers the court, when it finds an unlawful employment practice has been committed, to "enjoin the [employer] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay...." 42 U.S.C. § 2000e-5(g)(1).
17
Plaintiffs'amici briefed the legislative history of ERISA § 510. (See Sec'y of Labor Br. at 11; AARP Br. at 2-8). We find no need, however, to delve into ERISA's "voluminous legislative history," see Russell, 473 U.S. at 145-46, 105 S.Ct. 3085, because § 502(a)(3)'s plain language provides a clear answer to the question presented. See Harris Trust, 530 U.S. at 254, 120 S.Ct. 2180. We further doubt the Supreme Court would place as much emphasis on ERISA's legislative history as Plaintiffs' amici. See Russell, 473 U.S. at 146, 105 S.Ct. 3085 (explaining the legislative history of § 502(a)(3) "is of little help" in determining the remedies available under that provision). The dissent finds ambiguity in § 502(a)(3) because the provision "does not authorize any specific equitable remedy[.]" (Dissent Op. at 1263). From this premise, the dissent reasons that because § 502(a)(3) authorizes reinstatement — an equitable remedy — the statute does not clearly preclude backpay. (Id.). We fail to see the ambiguity in § 502(a)(3) — a provision that only authorizes equitable relief — simply because the provision allows an equitable award, such as reinstatement, while simultaneously precluding a legal award, such as backpay. The dissent's reading of § 502(a)(3) renders the modifier "equitable" superfluous. Moreover, the Supreme Court has rejected "strained interpretation[s] of § 502(a)(3) in order to achieve the purpose of ERISA to protect plan participants and beneficiaries." Mertens, 508 U.S. at 261, 113 S.Ct. 2063 (internal quotations omitted); see (Dissent Op. at 1263-1264).
18
Relying on an unpublished decision, Plaintiffs argue we have classified backpay as equitable under ERISAMyers v. Colgate-Palmolive Co., 26 Fed.Appx. 855, 862 n. 11 (10th Cir.2002). In Myers, a case filed the same day as Great-West, we mentioned in dicta that § 510 "confines relief to the equitable remedies of backpay, restitution, and reinstatement[.]" Id. Myers, however, did not include a claim for backpay at all. Rather, we considered the appropriate statute of limitations for a § 510 claim. Id. at 863-64. The panel's holding in Myers, which did not have the benefit of Great-West, has no bearing on the disposition of Plaintiffs' case.
19
We also decline Plaintiffs' invitation to craft some type of "constructive" or "hypothetical" reinstatement rule which would allow the district court to award legal relief, and thereby restore an aggrieved employee to the status quo ante, upon a finding that equitable relief might have been available at some juncture during the pendency of the case. Such a rule would be contrary to the plain language of § 502(a)(3), which only permits an award of equitable reliefGreat-West, 534 U.S. at 221, 122 S.Ct. 708.
20
The dissent submits the result in this case rewards Defendant for discovery violations that allegedly occurred in the district court and "carves out a method by which employers can violate ERISA in letter and spirit, yet escape the consequences." (Dissent Op. at 1261, 1264-1265). Defendant's alleged discovery violations are not currently before us and it would, of course, be inappropriate to read a remedy into ERISA to sanction DefendantRussell, 473 U.S. at 145, 105 S.Ct. 3085 (explaining the federal judiciary should not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide). Instead, Fed.R.Civ.P. 37 exists to curb discovery violations. Moreover, although irrelevant to the certified question, the record does not support the dissent's implication that the litigation protracted for eight years because of Defendant's alleged course of obstruction. Finally, Defendant has compensated Plaintiffs for their lost benefits. Defendants simply are not liable for extra-contractual compensatory damages. Russell, 473 U.S. at 148, 105 S.Ct. 3085; Great-West, 534 U.S. at 210, 122 S.Ct. 708.
42
LUCERO, J., Circuit Judge, dissenting.
43
Under the majority's result, the class plaintiffs are entitled to neither reinstatement nor back pay. Not only does the majority's holding fail to deter ERISA violations, it also encourages employers who violate ERISA to delay proceedings as long as possible, "lead[ing] to the strange result that .... the most egregious offenders could be subject to the least sanctions." Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 853, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). Because I disagree that Congress intended this result or that precedent demands it, I respectfully dissent.
44
On December 3, 1993, McDonnell Douglas Corporation announced it was closing its Tulsa, Oklahoma facility. In July 1994, almost ten years ago, Plaintiff James R. Millsap commenced this class action. The class plaintiffs alleged and the district court found that McDonnell Douglas violated § 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 ("ERISA"), which proscribes an employer's interference with a participant's rights under a qualified benefit plan. Millsap v. McDonnell Douglas Corp., 162 F.Supp.2d 1262, 1264, 1310 (N.D.Okla.2001) (Millsap I). Class plaintiffs sought all appropriate equitable relief under § 502(a)(3), including lost benefits, back pay, and reinstatement or front pay in lieu of reinstatement; McDonnell Douglas sought to preclude an award of back pay under ERISA § 502(a)(3).
45
Finding that the passage of eight years spent in litigation rendered reinstatement impossible and front pay inappropriate, the district court denied reinstatement and front pay to the class plaintiffs. Millsap v. McDonnell Douglas Corp., No. 94-CV-633-H, 2002 WL 31386076, at *6 (N.D.Okla. Sept.25, 2002) (Millsap II). However, the district court denied McDonnell Douglas' motion to preclude back pay, determining that the plaintiffs' claim for back pay was equitable in nature. Id. at *5. On interlocutory appeal, we are limited to the following certified question:
46
[W]hether, in this ERISA § 510 case and as a result of Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), back pay (and, as a result, any other damages based upon back pay) are available as "appropriate equitable relief" to the class members pursuant to ERISA § 502(a)(3).
47
(Maj. Op. at 1248.)
48
ERISA § 502(a)(3), under which class plaintiffs seek relief, provides:
49
A civil action may be brought — (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.
50
29 U.S.C. § 1132(a)(3) (emphasis added). Two seminal Supreme Court cases have interpreted the bounds of "appropriate equitable relief."
51
One of the Court's first interpretations of § 502(a)(3) appeared in Mertens v. Hewitt Assoc., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). As the majority explains, Mertens involved an action brought under § 502(a)(3) by former employees who alleged that their retirement plan's actuary breached its fiduciary duty; the Court denied monetary damages to the petitioners on the ground that the remedy sought was "nothing other than compensatory damages," a remedy typically available at law and not equity. Id. at 255, 113 S.Ct. 2063. Outlining the test for "appropriate equitable relief," the Court explained that § 502(a)(3) permits the award of remedies only for "those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Id. at 256, 257-58, 113 S.Ct. 2063.
52
Applying its language from Mertens in a § 502(a)(3) case alleging breach of contract, the Court further defined the bounds of equitable relief in Great-West, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635. There, the Court again denied relief, characterizing the reimbursement relief sought as an effort "to impose personal liability on [defendant] for a contractual obligation to pay money — relief that was not typically available in equity." 534 U.S. at 210, 122 S.Ct. 708.
53
The majority relies on these authorities to support its conclusion that back pay is not available as appropriate equitable relief. However, the majority reads too much into the Supreme Court's holdings; neither Mertens nor Great-West expressly preclude back pay as an equitable remedy under ERISA.1 Instead, the Court left unresolved the precise issue before us today — whether back pay constitutes appropriate equitable relief under § 502(a)(3). Consistent with Mertens and Great-West, our inquiry turns on whether the relief sought — here, back pay — was typically available in equity. In order to refine this inquiry, Great-West directs courts to "consult[] ... standard current works such as Dobbs, Palmer, Corbin, and the Restatements, ... [to] make the answer clear." Great-West, 534 U.S. at 217, 122 S.Ct. 708.
54
Consulting these sources, I find that none explicitly conclude that back pay is not equitable in nature. To the contrary, the only source cited by the majority that speaks directly to back pay, Dobbs, is less than clear. Although Dobbs first states that back pay "seems on the surface to be an ordinary damages claim, almost an exemplar of a claim at law," it ends with the recognition that "in fact the cases do not yield upon any such single conclusion." 2 Dan B. Dobbs, Law of Remedies, § 6.10(1) at 226 (2d ed.1993). With respect to wrongful discharge and job discrimination claims, Dobbs acknowledges that "back pay and reinstatement remedies are usually considered equitable." Id. at 193 (emphasis added). In sum, the guidance provided by Dobbs is scant but suggests the conclusion that with respect to the class plaintiffs who were wrongfully discharged, the back pay remedy is equitable.
55
The majority's conclusion that back pay is legal in nature is rooted in its analogy to common law compensation. Although the majority recognizes that "reinstatement of the employee and payment for time lost are remedies not known to the common law but created by statute," NLRB v. W. Ky. Coal Co., 116 F.2d 816, 821 (6th Cir.1940) (Arant, J., dissenting in part), it nonetheless concludes that back pay, which involves monetary relief, is necessarily the same as compensation. Because compensation claims sounded in law under the common law, the majority argues, it follows that the type of relief sought here is also legal in nature.
56
This proposition turns its back on our own en banc precedent. We have previously recognized that "[a]n award of back pay... is an integral part of the equitable remedy of reinstatement and is not comparable to damages in a common law action." Bertot v. School District No. 1, Albany County, 613 F.2d 245, 250 (10th Cir.1979) (en banc) (quotation omitted). A comparison to common law by analogy is particularly inappropriate because employee reinstatement and back pay remedies, which were created in the latter half of the twentieth century, displaced "the traditional rule ... that an `at will' employee could be discharged at any time and for any reason." 2 Dobbs § 6.10(1), at 190.
57
Contrary to the majority's conclusion, it is not sufficient to state that because back pay involves monetary relief, it is necessarily legal in nature. Chauffeurs, Teamsters, and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). "[N]ot all monetary relief is damages," and "[e]quity sometimes awards monetary relief, or the equivalent." Clair v. Harris Trust & Sav. Bank, 190 F.3d 495, 498 (7th Cir.1999) (concluding that "restitution is both a legal and an equitable remedy that is monetary yet is distinct from damages"); Allison v. Bank One-Denver, 289 F.3d 1223, 1243 (10th Cir.2002) (holding in an ERISA case decided after Great-West that monetary relief in the form of prejudgment interest may be equitable in nature). Even Great-West, which stated that suits seeking monetary relief are "almost invariably... [legal] suits for money damages," 534 U.S. at 210, 122 S.Ct. 708 (quotation omitted), does not compel the result that all suits seeking monetary relief are legal in nature. Despite the majority's conclusion to the contrary, the case law with respect to this latter point — money damages — prescribes no clear answer. Thus we look to the language of § 502(a)(3) for instruction. Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 254, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) ("In ERISA cases, as in any case of statutory construction, our analysis begins with the language of the statute.").
58
In looking at the plain language of the statute, the majority states that "Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly," (Maj. Op. at 1250) (quotation omitted), and therefore that back pay, because it is not explicitly mentioned in § 502(a)(3), is not a recognized form of relief. However, the plain language of the statute is not unambiguous as the majority would have it. To the contrary, the essence of this dispute is over the proper interpretation of the word "equitable" as used in the statute. Although § 502(a)(3) does not authorize any specific equitable remedy, reinstatement indisputably constitutes "appropriate equitable relief" to remedy violations of § 510. Great West, 534 U.S. at 211 n. 4, 122 S.Ct. 708; Mertens, 508 U.S. at 256, 113 S.Ct. 2063; Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 384 (4th Cir.2001). Contrary to the majority's conclusion, the plain language of § 502(a)(3) similarly does not clearly preclude back pay as appropriate equitable relief.
59
Because there is ambiguity as to what constitutes equitable relief, I would look to the legislative history and purpose of ERISA, for the art of statutory interpretation is to promote Congressional intent while avoiding counterproductive results. See e.g., Pollard, 532 U.S. at 852-54, 121 S.Ct. 1946. Congress's intentions are clear in ERISA's statement of policy; it sought to protect "the interests of participants in employee benefit plans and their beneficiaries... by providing for appropriate remedies, sanctions, and ready access to the Federal courts." ERISA § 2(b), 29 U.S.C. § 1001(b). This purpose is equally apparent in the legislative history of ERISA, wherein Congress expressed its intent to "strengthen and improve the protections and interests of participants and beneficiaries of employee pension and welfare benefit plans," S.Rep. No. 93-127, at 1 (1973), U.S.Code Cong. & Admin.News at 4838, and stated that the "primary purpose of the bill is the protection of individual pension rights," H.R.Rep. No. 93-533, at 1 (1973), U.S.Code Cong. & Admin.News at 4639.
60
Courts have consistently recognized the broad protections ERISA affords employees. "ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (quotations omitted). "By its terms § 510 protects plan participants from termination motivated by an employer's desire to prevent a pension from vesting. Congress viewed this section as a crucial part of ERISA because, without it, employers would be able to circumvent the provision of promised benefits." Id. at 143, 111 S.Ct. 478. "Section 510 proscribes changes in employment status based upon benefit motivations," Garratt v. Walker, 164 F.3d 1249, 1255 (10th Cir.1998) (en banc), and "helps to make [employer's] promises [of benefits] credible." Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 516, 117 S.Ct. 1513, 137 L.Ed.2d 763 (1997) (quotation omitted). Here, McDonnell Douglas terminated its employees to avoid paying benefits. This is precisely the factual scenario Congress intended to prevent when it enacted ERISA. Nonetheless, the majority carves out a method by which employers can violate ERISA in letter and spirit, yet escape the consequences.
61
Consistent with the purposes of ERISA and contrary to the majority's result, our previous cases that have considered the nature of back pay in other employment contexts have held that back pay is, in fact, equitable. Cf. Bertot, 613 F.2d at 250 (concluding that in a § 1982 public employee case, "an award of back pay is an element of equitable relief"); DeVargas v. Mason & Hanger-Silas Mason Co. Inc., 911 F.2d 1377, 1381 n. 3 (10th Cir.1990) (citation omitted) ("the bar on recovery of `money damages' contained in 5 U.S.C. § 702 does not include equitable backpay, which is a form of equitable relief, not monetary damages").2 Similarly, it is undisputed that an injunction ordering an employee's return to work — reinstatement — is equitable relief under ERISA § 502(a)(3), Mertens, 508 U.S. at 256, 113 S.Ct. 2063; Griggs, 237 F.3d at 384, and that as a general rule, back pay is considered an equitable remedy when it is intertwined with injunctive relief or made an integral part of an overall equitable remedy. Terry, 494 U.S. at 571, 110 S.Ct. 1339 ("a monetary award incidental to or intertwined with injunctive relief may be equitable" in nature) (quotation omitted); Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); see also Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156, 1161 (10th Cir.1998). In the context of § 510 violations, ERISA § 502(a)(3) authorizes what has been termed in other statutory contexts as the "conventional remedy" of reinstatement with back pay. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). This equitable remedy is consistent with labor-protective legislation dating back to the New Deal, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49, 57 S.Ct. 615, 81 L.Ed. 893 (1937), and is consistent with ERISA's primary purposes.
62
Despite clear precedent that back pay is equitable in nature when integrated with reinstatement, the majority concludes that back pay is not equitable under the present circumstances because back pay and restoration of benefits are the only remedies available in this case. (Maj. Op. at 1249 n. 3.) However, "[t]he characterization of back pay as legal or equitable has been determined by whether the plaintiff has requested back pay as an adjunct to the equitable remedy of reinstatement, in which case it has been characterized as equitable." Skinner v. Total Petroleum Inc., 859 F.2d 1439, 1444 (10th Cir.1988). The present class plaintiffs sought both reinstatement and back pay.3
63
"[A]ccording to the prevailing view, where the aggrieved party shows entitlement to equitable relief, but a grant appears to be impossible or impracticable, the court may nevertheless proceed with the case, determine disputed issues, and adjust the rights and obligations of the parties, awarding damages or a money judgment" in lieu of the requested equitable remedy. 27A Am.Jur.2d Equity § 106 (2003); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1334 (10th Cir.1982); Schwartz, 45 F.3d at 1023 ("Front pay is awarded ... when the preferred remedy of reinstatement, indisputably an equitable remedy, is not appropriate or feasible."). In a similar inquiry involving front pay, the Supreme Court has explained that to deny front pay in the case where reinstatement was unavailable and award it in the case where the plaintiff was eventually reinstated "would lead to the strange result.... that the most egregious offenders could be subject to the least sanctions." Pollard, 532 U.S. at 853, 121 S.Ct. 1946.
64
The majority's result is similarly disconcerting. Here, reinstatement would have been an appropriate equitable remedy had McDonnell Douglas not so delayed proceedings as to make reinstatement impossible. Thus, through no fault of their own, the class plaintiffs find themselves devoid of the undeniably appropriate equitable remedy of reinstatement. Back pay, which was integral to the relief sought by the plaintiffs at the onset of this litigation, provides an appropriate equitable alternative.
65
I would conclude that the district court was within its power to provide for back pay as "other appropriate equitable relief" where, as here, the equitable remedy of reinstatement is no longer feasible. Because I conclude that back pay is appropriate equitable relief as contemplated by ERISA § 502(a)(3) under the present circumstances, I respectfully DISSENT.
Notes:
1
AlthoughGreat-West did not explicitly involve the question of back pay, the Court did consider back pay awards under Title VII in footnote four. 534 U.S. at 218 n. 4, 122 S.Ct. 708. There, the Court discussed back pay awards in response to a point raised by Justice Ginsburg's dissent, in which Justice Ginsburg argued that because Congress treated back pay as an equitable remedy under Title VII, the restitutionary relief in Great West should also be considered equitable. Id. at 229-230, 122 S.Ct. 708. Disagreeing, the majority contended that Congress never regarded back pay as an inherently equitable remedy, explaining that Congress considered back pay "equitable in Title VII only in the narrow sense that it allowed back pay to be awarded together with equitable relief." Id. (citation omitted). Thus, the Court simply concluded that under Title VII, which explicitly intertwines back pay with reinstatement, back pay is equitable. Id. Moreover, the Court recognized that "Title VII has nothing to do with this case," id., and refrained from inquiring whether the remedy of back pay is typically available in courts of equity.
2
Other courts considering the nature of back pay in employment discrimination contexts have also classified back pay as equitableSee, e.g., West v. Gibson, 527 U.S. 212, 217, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999) (Title VII); Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (Title IX); Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630, 631 n. 10, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984) (Rehabilitation Act); Ford Motor Co. v. EEOC, 458 U.S. 219, 226 n. 8, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982) (Title VII); Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 n. 11, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (Title VII); Sandberg v. KPMG Peat Marwick, LLP, 111 F.3d 331, 336 (2d Cir.1997) (remedies available for violations of Section 510 include "back pay, restitution and reinstatement"); Zimmerman v. Sloss Equip., Inc., 835 F.Supp. 1283, 1293 (D.Kan.1993) (finding back pay an equitable remedy for § 510 purposes); Pegg v. Gen. Motors Corp., 793 F.Supp. 284, 287 (D.Kan.1992); but see Oliver-Pullins v. Associated Material Handling Indus., Inc. No. 1:03-cv-0099-JDT-WTL, 2003 WL 21696207, at *3 (S.D.Ind. May 20, 2003) (section 510 claim for back pay is legal and not equitable under Great-West).
3
ApplyingSkinner, the majority also states that back pay is legal under the present facts because the plaintiffs sought primarily legal relief at the onset of this litigation. (Maj. Op. at 1248 n. 1, 1256 n. 12.) However, in their Complaint and First Amended Complaint, the class plaintiffs requested "damages in an amount determined to have been sustained by... each member of the Plaintiff class [and] ... restitution to the plans for losses resulting from the breach and any other equitable or remedial relief deemed appropriate by the Court, together with interest and costs of suit." (MDC App. 84-85, 90-94.) (emphasis added.) The case was bifurcated for trial, the liability phase was tried to the bench, and the district court held that McDonnell Douglas had violated ERISA § 510. Millsap II, 162 F.Supp.2d at 1310.
Following the September 5, 2001 liability order, on September 26, 2001, the parties filed a Joint Status Report which discussed, inter alia, what kinds of relief would be available to the class. There, the class plaintiffs reiterated their intention to seek restoration of benefits and appropriate equitable relief, specifically requesting reinstatement, front pay and back pay. Based on the language in the Complaint and Amended Complaint, I cannot conclude that the class plaintiffs sought primarily legal damages at the onset of this litigation. To the contrary, the class plaintiffs sought both legal and equitable relief in their Complaint, and sought back pay as an adjunct to the equitable remedy of reinstatement in the Joint Status Report.
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 28, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3323
TROY A. BONG,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)
_________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender for the District
of Colorado, Denver, Colorado, appearing for Appellant.
Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with him on the briefs), Office of the United States Attorney for the District of
Kansas, Topeka, Kansas, appearing for Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Defendant Troy Bong, convicted in 2013 of being a felon in possession of a
firearm and sentenced to a term of imprisonment of 293 months, appeals from the
district court’s denial of his motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability
(COA) on Bong’s claims that he was improperly sentenced under the Armed Career
Criminal Act (ACCA) and that his trial and appellate counsel were ineffective for
failing to challenge the ACCA sentencing. We subsequently granted Bong a COA as
to two additional issues: (1) whether his trial counsel was ineffective for failing to
investigate the facts of the underlying traffic stop, Bong’s resulting arrest, and
Bong’s alleged possession of a firearm; and (2) whether the prosecution suppressed
any available video recordings of his stop and arrest.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that
the district court erred in treating his prior Kansas state convictions for robbery and
aggravated robbery as “violent felonies” under the ACCA. Consequently, we remand
to the district court for consideration of whether Bong’s remaining prior convictions
are sufficient to support his sentence under the ACCA. As for Bong’s ineffective
assistance of trial counsel claims, we affirm in part, reverse in part, and remand for
further proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse
and remand for further proceedings.
I
a) The underlying facts of Bong’s case
In an unpublished order and judgment issued in 2014, we addressed Bong’s
direct appeal and summarized the underlying facts of his case:
On December 22, 2012, Officers [Robert] Thatcher and [Joseph]
Springob of the Wichita Police Department were parked outside a house
that was the subject of a drug investigation. The officers observed a car
2
leave the target house and followed the vehicle. The driver of the
vehicle failed to activate the car’s turn signal 100 feet before an
intersection. Based on this traffic violation, the officers initiated a
traffic stop. Officer Springob approached the driver’s side of the car,
while Officer Thatcher approached the passenger side. A woman, later
identified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the
front passenger seat.
Officer Thatcher used his flashlight to look into the passenger
side of the vehicle as he approached. Officer Thatcher testified Mr.
Bong refused to make eye contact, instead staring straight ahead.
Officer Thatcher thought Mr. Bong looked familiar, prompting him to
ask for Mr. Bong’s identification. Mr. Bong opened the passenger door
to hand Officer Thatcher his identification. As Mr. Bong opened the
door, Officer Thatcher noticed a cigarette pack between the passenger
seat and the door. Officer Thatcher found this suspicious because in his
experience people attempting to hide illegal substances often drop them
between the seat and door.
After examining Mr. Bong’s identification, Officer Thatcher
recalled he had previously arrested Mr. Bong on drug, firearms, and
parole violation charges. Officer Thatcher asked Mr. Bong if he was
still on parole, but Mr. Bong refused to respond. According to Officer
Thatcher, Mr. Bong began to exhibit signs of nervousness—heavy
breathing, sweating, and refusal to acknowledge the officer. Because
Officer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the
officer became concerned for his and Officer Springob’s safety. Officer
Thatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially
refused to respond, but he eventually exited the vehicle after Officer
Thatcher repeated his order several times.
When Mr. Bong stepped out of the vehicle, Officer Thatcher
noticed he was standing so that the right side of his body was turned
away. Officer Thatcher also observed a knife clipped into one of the
front pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife
from Mr. Bong’s pocket and told him to put his hands on top of the car.
He then informed Mr. Bong that he was going to perform a patdown for
weapons. According to Officer Thatcher, Mr. Bong hesitated, but
eventually put his hands on the top of the car.
Officer Thatcher reached up to place his hands on top of Mr.
Bong’s hands on the car roof. As he did so, Mr. Bong attempted to back
away from the car and evade Officer Thatcher. Because he feared Mr.
Bong might have a weapon, Officer Thatcher attempted to maintain
control of Mr. Bong’s hands. The two struggled briefly, at which point
Officer Thatcher tried to throw Mr. Bong to the ground while keeping
control of his hands. Both men fell to the ground, still struggling. As
3
Mr. Bong attempted to rise, Officer Thatcher kicked him approximately
three times in the abdomen in an attempt to knock him back down. At
that point, Officer Thatcher observed a black object resembling a
firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.
Appx. at 93.
In response to Officer Thatcher’s shout, Officer Springob entered
the fray and knocked Mr. Bong to the ground. The officers were able to
subdue Mr. Bong and place him in handcuffs. After the officers
restrained Mr. Bong, they found a firearm on the ground beneath him.
United States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).
b) Bong’s trial proceedings and sentencing
On January 8, 2013, a federal grand jury indicted Bong on one count of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved
to suppress the evidence obtained during the traffic stop and his arrest, arguing it was
obtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong
“acknowledged the officers had reasonable suspicion to initiate an investigative
traffic stop on the basis of the observed traffic violation,” but nevertheless “argued
the scope of the detention following the traffic stop and the force used by the officers
was unreasonable.” Id. “The district court expressed concern about the level of force
used by the officers, but it ultimately concluded Officer Thatcher’s actions were
justified under the circumstances” and thus “denied [the] motion to suppress.” Id.
“The case proceeded to trial,” where the “Government advanced the theory
that . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s
defense was that another man, Jeremy Fisher, had dropped the gun where it was
found and the traffic stop and subsequent scuffle only coincidentally occurred at the
4
same location . . . Fisher had dropped the gun.” Id. At the conclusion of the
evidence, the jury convicted Bong of the felon-in-possession charge.
The presentence investigation report (PSR) applied a base offense level of 24.
But the PSR concluded that Bong “ha[d] at least three prior convictions for a violent
felony or serious drug offense, or both, which were committed on different
occasions” and was therefore “an armed career criminal and subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.
Consequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.
The PSR in turn concluded that Bong’s total criminal history score was 31, which
resulted in a criminal history category of VI. Together, the total offense level of 33
and the criminal history category of VI resulted in an advisory sentencing guidelines
range of 235 to 293 months.
Bong did not file objections to the PSR, but did file a sentencing memorandum
asking the district court to vary downward and impose a sentence of 187 months.
The district court denied that request and sentenced Bong to a term of imprisonment
of 293 months.
c) Bong’s direct appeal
Bong filed a direct appeal challenging the district court’s denial of his motion
to suppress. Bong also challenged the trial court’s admission at trial of two sets of
statements. On December 18, 2014, we issued an unpublished order and judgment
rejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x
at 614.
5
Bong filed a petition for writ of certiorari with the Supreme Court. His
petition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873
(2015).
d) Bong’s § 2255 proceedings
On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for
relief. Of relevance here, Ground One of the motion argued that in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes
of violence” for enhanced sentencing purposes because they did not require the use,
attempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two
alleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to
“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed
Career Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of
Bong’s motion alleged that his trial counsel was ineffective for failing to challenge
the PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.
at 655.
Bong subsequently moved for appointment of counsel. The district court
granted the motion, but solely for purposes of counsel assisting Bong “in obtaining
relief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel
moved to amend the § 2255 motion. In support, Bong’s counsel argued that, based
on the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),
6
it was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot
be used as a predicate ‘violent felony’ for an Armed Career Criminal Act
enhancement and it was error to be included as such by the [trial] Court,” and in turn
“it was ineffective for his trial and appellate counsel to fail to raise this issue at the
time of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government
filed a response arguing that Mathis did not apply retroactively to cases on collateral
review. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging
all of Bong’s prior convictions used to establish his ACCA status.
On September 22, 2016, Bong filed a pro se pleading entitled “TROY
BONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.
In that pro se pleading, Bong alleged, in pertinent part, that he submitted a request
under the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,
and that the City of Wichita, in response to his request, stated that “2 AXON videos
(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes
and 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]
incarceration he [wa]s unable to purchase or receive copies of these videos,” but that
the videos “w[ould] show that [he] never resisted or attempted to escape before
Thatcher threw him to the ground and began using force on him.” Id. Thus, Bong
argued, “these videos constitute impeaching evidence which also show that the
officers gave perjured testimony at trial upon which the jury relied to convict [him].”
Id.
7
On October 28, 2016, the district court issued a memorandum and order
denying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based
arguments, noting that he “has at least three convictions under Kansas law for
robbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”
Id. at 1051. More specifically, the district court noted that Bong “was convicted in a
Kansas district court on May 29, 1990, of three counts of robbery, three counts of
aggravated robbery, and one count of attempted robbery.” Id. at 1052. These
offenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;
March 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”
Id. The district court in turn noted that “[a]t the time of the offenses, Kansas law
defined robbery as ‘the taking of property from the person or presence of another by
threat of bodily harm to his person or the person of another or by force,’” id. (quoting
Kan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery
committed by a person who is armed with a dangerous weapon or who inflicts bodily
harm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.
§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery
under Kansas law incorporate the ‘physical force’ necessary to constitute a violent
offense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he
element of force or threat of bodily harm in Kansas robbery materially distinguishes
this offense from Johnson [II]” because “[t]he Kansas element of the intentional use
of force or threat of bodily harm necessarily contemplates force capable of causing
pain or injury, placing this offense squarely within the violent felonies Congress had
8
in mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that
Bong cited “no Kansas Supreme Court case finding the force element of robbery to
be satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the
contrary, Kansas cases characterize robbery as a taking accomplished by violence or
intimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or
so robbery offenses (including aggravated robbery) were largely consolidated for
charging and sentencing,” but “occurred (with one exception) on different dates, and
were thus ‘committed on occasions different from one another.’” Id. at 1054
(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).
The district court rejected all of the other claims that Bong asserted, including
the various ineffective assistance of counsel and appellate counsel claims. In
addition, the district court addressed Bong’s pro se reply brief in the following
manner:
Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that
attempts to raise a multitude of claims in addition to those set forth in
the original or amended § 2255 motions. To the extent the Reply
attempts to raise new claims, those claims are barred because they have
been raised outside the applicable one-year statute of limitations. See
United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)
(“When a § 2255 movant seeks to amend his pleading to include a new
claim, we will only entertain this claim if the amendment is made within
the one-year limit set by AEDPA.”). To the extent the Reply raises new
arguments (but not new claims) that were not set forth in his initial or
amended § 2255 motions, those arguments are considered waived. See
United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).
Nevertheless, the court has addressed the merits of the arguments
contained in the Reply Brief to the extent feasible.
Id. at 1047 n.1.
9
Lastly, the district court granted Bong a COA with respect to the issues raised
in his § 2255 motion concerning his “classification as an armed career criminal and
the effectiveness of counsel with respect to that classification.” Id. at 1072. The
district court denied Bong a COA on the remaining issues asserted in his § 2255
motion. Id. at 1073.
Bong filed a timely notice of appeal. He has since filed a motion to expand the
COA to include additional issues.
II
We begin by focusing on the ACCA-related issues on which the district court
granted Bong a COA. As outlined below, we conclude that Bong’s Kansas
convictions for robbery and aggravated robbery do not constitute “violent felonies”
for purposes of the ACCA.
Standards of review
“A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the
exclusive remedy for a federal prisoner seeking to attack the legality of detention.”
United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and
brackets omitted). We review de novo the district court’s rulings on a § 2255 motion
and its findings of fact for clear error. Id.
“Whether a prior conviction satisfies the ACCA’s violent felony definition is a
legal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263
(10th Cir. 2017).
10
Was Bong properly sentenced under the ACCA?
“[T]he ACCA mandates an enhanced sentence of imprisonment of not less
than 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a
violent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)
(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that falls within the
scope of one of three enumerated clauses: (1) the elements clause, which states: “has
as an element the use, attempted use, or threatened use of physical force against the
person of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which
includes any crime that “is a categorical match to the generic offenses of ‘burglary,
arson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the
residual clause, which includes any crime that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii).
In Johnson II, the Supreme Court held that the ACCA’s residual clause was
unconstitutionally vague and “that imposing an increased sentence under the residual
clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.
The result is that, for a prior conviction to constitute a “violent felony” under the
ACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it
must fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d
at 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for
robbery and aggravated robbery do not fall within the enumerated-offenses clause
11
and, thus, must fall within the elements clause in order to constitute “violent
felonies” for purposes of the ACCA.
“To determine if a prior conviction qualifies as a violent felony” under the
ACCA’s elements clause, “we apply the categorical approach, focusing on the
elements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d
at 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More
specifically, we must determine whether the Kansas statutes of conviction “ha[ve] as
an element the use, attempted use, or threatened use of physical force against the
person of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both
federal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines
the meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in
§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime
of conviction.” Id.
The terms employed in the ACCA’s elements clause have, for the most part,
been clearly defined by the Supreme Court. The term “use,” as employed in the
ACCA’s elements clause, “requires active employment” rather “than negligent or
merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the
term “physical,” as employed in the ACCA’s elements clause, means “force exerted
by and through concrete bodies—distinguishing physical force from, for example,
intellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138
(2010) (Johnson I). As for the term “force,” the Court rejected the traditional
definition (i.e., that force can be satisfied by even the slightest offensive touching)
12
and instead held that in the context of the ACCA, the phrase “physical force” means
“violent force”—“force capable of causing physical pain or injury to another person.”
Id. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or
threatened employment of violent force—force capable of causing physical pain or
injury—against the person of another.
Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),
the Supreme Court revisited the ACCA’s elements clause to determine whether a
Florida robbery conviction constituted a predicate offense under the ACCA. In doing
so, the Court held “that the elements clause encompasses robbery offenses that
require the criminal to overcome the victim’s resistance.” 2019 WL 189343 at *3.
The Court explained that “the force necessary to overcome a victim’s physical
resistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and
‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”
Id. at *7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,
“because robbery that must overpower a victim’s will—even a feeble or weak-willed
victim—necessarily involves a physical confrontation and struggle.” Id. The Court
stated that a physical confrontation or “altercation need not cause pain or injury or
even be prolonged” because “it is the physical contest between the criminal and the
victim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting
Johnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the
Court made it a point to emphasize that the “[m]ere ‘snatching of property from
another’ will not suffice” to constitute robbery under Florida law. Id. at *9.
13
Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply
these principles to [the Kansas] robbery statute to determine whether it ‘has as an
element the use, attempted use, or threatened use of physical force against the person
of another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step
inquiry” for resolving whether a state’s “robbery statute requires physical force as
that term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the
minimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.
Second, we must “then determine if that force categorically fits the [ACCA’s]
definition of physical force.” Id. (italics in original). The Supreme Court has
emphasized “that in construing the minimum culpable conduct, such conduct only
includes that in which there is a ‘realistic probability, not a theoretical possibility’ the
state statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685
(2013)). “Decisions from the state supreme court best indicate a ‘realistic
probability,’ supplemented by decisions from the intermediate-appellate courts.” Id.
(quoting Moncrieffe, 133 S. Ct. at 1685).
Bong’s ACCA sentence was based, in pertinent part, on three Kansas state
robbery convictions and three Kansas state aggravated robbery convictions, all of
which occurred in April of 1990 (but were based on separate incidents). At the time
of those convictions, the Kansas robbery statute provided as follows: “Robbery is the
taking of property from the person or presence of another by threat of bodily harm to
his person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).
And the Kansas aggravated robbery statute provided: “Aggravated robbery is a
14
robbery committed by a person who is armed with a dangerous weapon or who
inflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.
§ 21-3427 (1988).
In the unpublished decision in United States v. Nicholas, 686 F. App’x 570
(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas
robbery statute required “physical force” as defined in the ACCA. In doing so, the
panel in Nicholas “look[ed] . . . to Kansas state law to define the substantive
elements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat
of bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,
961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the
defendant’s robbery conviction for purse-snatching. The robbery victim in the case
testified that she had cashed some checks at a bank and walked outside with a “thing
that [she] had the money in” when, as she was opening the door to her car, McKinney
appeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the
money] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had
snatched [the victim’s] purse from her arm, but he denied pushing her,” and he
consequently “argue[d] that the jury should have been instructed on theft as a lesser
included offense of robbery.” Id. at 8. The Kansas Supreme Court rejected
McKinney’s argument, concluding that even if he snatched the victim’s purse without
pushing her, simply “snatching the purse away from [the victim] constituted the
threat of bodily harm, which is an element of robbery.” Id. Although the panel in
Nicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will
15
likely involve a greater degree of force than mere purse-snatching,” it nevertheless
concluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]
lowest level of culpable conduct.”1 686 F. App’x at 575.
The panel in Nicholas in turn “conclude[d] that Kansas robbery does not
necessarily require the use, attempted use, or threatened use of violent force against
the person of another.” Id. at 576. In doing so, the panel in Nicholas noted that
“[s]everal circuit courts have concluded that, because a state’s robbery statute may be
violated with minimal actual force, it does not qualify as a violent felony under the
ACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits
construing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).
In particular, the Nicholas panel noted that the Ninth Circuit in United States v.
Parnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a
Massachusetts armed robbery statute, that “the snatching of a purse from a victim’s
hand . . . does not constitute force ‘capable of causing physical pain or injury to
another person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).
Ultimately, the panel in Nicholas concluded that “the minimum force
necessary under Kansas law to support a robbery conviction” does not “categorically
fit[] the definition of physical force under the ACCA.” Id. at 575. In other words,
1
In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not
identified a general statement from Kansas courts as to the degree of force required to
support a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel
noted that most of the Kansas cases “addressing the force element of Kansas robbery
have done so in the context of determining the statute’s temporal requirements, not
its degree-of-force requirements.” Id.
16
the panel held that “[b]ecause Kansas robbery does not require the use, attempted
use, or threatened use of violent force as defined in Johnson, it cannot serve as a
predicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.
at 576.
Not surprisingly, the parties in the case before us have divergent views
regarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas
because, although “not precedential, it is persuasive and applies here.” Aplt. Br.
at 48. The government, in response, argues that Nicholas “was wrongly decided.”
Aplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s
note in Nicholas that it could not identify a general statement from Kansas courts as
to the degree of force necessary to constitute robbery,” there is in fact “sufficient
guidance” in Kansas case law “establishing the force necessary to support a robbery
conviction.” Aplee. Br. at 30. In particular, the government points to the following
statement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371
(Kan. 1976):
[T]o constitute the crime of robbery by forcibly taking money
from the person of its owner, it is necessary that the violence to the
owner must either precede or be contemporaneous with the taking of the
property and robbery is not committed where the thief has gained
peaceable possession of the property and uses no violence except to
resist arrest or to effect his escape.
Id. at 375. The government also cites various dictionaries for the proposition that
“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.
17
Thus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’
possession of property is not robbery; rather, it is theft.” Id. at 31.
Notably, the very same argument was made by the government in Nicholas and
the panel in that case rejected it, stating as follows:
The primary case relied upon by the government, State v.
Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to
robbery while answering the question of when force must occur, not
what degree of force is required. Id. at 373-75. Moreover, insofar as
Aldershof appears to conflate “violence” with the force necessary to
support a robbery conviction, those concepts are later divorced in State
v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there
was no violence used in the commission of the robbery . . . . Since there
was no direct evidence as to violence occurring with that taking, the
jury acquitted Peck on the charge of aggravated robbery, and instead
found him guilty of simple robbery.”).
More importantly, the McKinney court explicitly relied on
Aldershof in concluding that mere purse-snatching can support a
conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must
therefore reject any interpretation of Aldershof that would be
inconsistent with the holding in McKinney. See Jackson v. Harris, 43
F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in
conflict, the national courts will follow the latest settled adjudications of
the highest court of the state rather than the earlier ones . . . .”). In
doing so, we acknowledge that many, if not most, Kansas robbery
convictions will likely involve a greater degree of force than mere
purse-snatching; however, our analysis must focus on the lowest level of
conduct that can support a conviction under the statute. See Moncrieffe
v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what
the state conviction necessarily involved, not the facts underlying the
case, we must presume that the conviction ‘rested upon nothing more
than the least of the acts’ criminalized, and then determine whether even
those acts [would constitute violent felonies].” (quoting Johnson [II],
559 U.S. at 137) (alterations omitted)). In the context of Kansas
robbery, McKinney establishes that lowest level of culpable conduct.
686 F. App’x at 575 (parallel citations omitted).
18
The government also argues that the panel in Nicholas “simply established a
quantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.
More specifically, the government argues that “the panel in Nicholas arguably gave
little credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse
snatching is simply ‘incapable’ of causing physical injury or pain to another person.”
Id. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”
Id. According to the government, “when considering that grabbing is sufficient to
cause physical injury, it is reasonable to conclude that purse snatching—which
necessarily involves grabbing—is similarly sufficient force to cause physical injury.”
Id.
The problem with the government’s argument is that it treats “purse snatching”
as a singular type of action when, as case law clearly demonstrates, it can be
accomplished in a variety of ways and with varying degrees of physical force. Of
course, it is easy to conceive of a particular act of purse-snatching that involves force
capable of causing physical harm to the victim—or, indeed, that actually causes
physical harm to the victim. But that was not the task faced by the panel in Nicholas
or by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]
law for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas
concluded, correctly in our view, that this minimum level of force was defined by the
specific act of purse-snatching that occurred in McKinney—an act that, at least
according to the defendant, involved the mere snatching of the purse (or whatever the
object was that actually contained the money) without any application of force
19
directly to the victim, and also, importantly, without any resistance by or injury to the
victim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that
“neither robbery nor aggravated robbery require bodily contact or the actual
application of force to the person of another as a necessary element for the
commission of those crimes”), abrogated on other grounds by State v. Adams, 744
P.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in
Kansas can be accomplished with minimal force that falls short of the “violent force”
required under the ACCA’s elements clause.
The government also suggests that Nicholas is inconsistent with our published
opinion in Harris. The government notes that in Harris, the “panel rejected the Ninth
Circuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on
Parnell to support its conclusion that Kansas’ robbery statute runs afoul of
Johnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,
Nicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and
Harris recognized that Parnell dealt with a robbery conviction under Massachusetts
law and both noted that under Massachusetts law, a defendant may be convicted of
robbery without using violence or intimidation of any sort. Nicholas and Harris came
to different outcomes because each case addressed a different state statute. In
Nicholas, the panel concluded that robbery under Kansas law was similar to robbery
20
under Massachusetts law, whereas the panel in Harris concluded that robbery under
Colorado law differed from robbery under Massachusetts law. 2
In sum, we conclude that the government has failed to establish that the panel
in Nicholas erred in concluding that “the minimum force necessary under Kansas law
to support a robbery conviction” does not “categorically fit[] the definition of
physical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the
reasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery
cannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement
provisions.
The question then becomes whether we should proceed to address the other
convictions that were cited in the PSR as predicate offenses, or whether we should
instead remand the case to the district court to determine in the first instance whether
those convictions are countable predicate offenses. Because the parties have briefed
the question of whether Bong’s Kansas state aggravated robbery convictions can
serve as predicate offenses under the ACCA, we will proceed to address that
question.
2
As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded
that a New York conviction for attempted robbery in the second degree was not a
“crime of violence” for purposes of the career offender guidelines because “there is a
realistic probability that [the defendant’s] conviction was for attempting to commit
an offense for which the least of the acts that may have constituted that offense
included ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st
Cir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.
1978)).
21
As noted, Bong has three prior convictions for violating the Kansas aggravated
robbery statute. At the time of his convictions, that statute provided: “Aggravated
robbery is a robbery committed by a person who is armed with a dangerous weapon
or who inflicts bodily harm upon any person in the course of such robbery.” Kan.
Stat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated
robbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a
person who (b) is armed with a dangerous weapon or who inflicts bodily harm upon
any person in the course of such robbery.3 Having concluded that robbery under
Kansas law is not a “violent crime” for purposes of the ACCA, the question remains
whether the second element described above is sufficient to render an aggravated
robbery a “violent crime.”
In answering this question, we begin and ultimately end by focusing on
whether being armed with a dangerous weapon during the course of a robbery is
sufficient to render the crime a “violent crime” for purposes of the ACCA. The
Kansas aggravated robbery statute does not define “armed,” and we have not found
any Kansas cases expressly defining the term.4 Turning to dictionary definitions,
3
It appears clear that these two alternative methods of rendering a robbery an
“aggravated robbery” are not elements of different offenses, but rather only different
means by which a person commits a single armed robbery offense. See Mathis 136
S. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery
can be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts
bodily harm on any person in the course of such robbery’”).
4
The Kansas pattern jury instructions stated that it was not necessary for the
defendant to have exhibited the dangerous weapon to the victim, and that whether or
(Continued . . .)
22
Black’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or
“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).
Similarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or
carrying a weapon or weapons (now typically firearms); involving the use of
weaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being
“equipped” with a weapon is the same as “possessing” a weapon. In other words,
simple possession of a weapon, rather than actual use of a weapon, is a sufficient
means of being “armed” for the purposes of the Kansas aggravated robbery statute.
And that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where
the Kansas Supreme Court held that the Kansas aggravated robbery “statute requires
only that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the
victim be aware of its presence.” Id. at 725.
We in turn conclude that merely being “armed” with a weapon during the
course of a robbery is not sufficient to render the crime a “violent crime” for
purposes of the ACCA. For example, take the simple robbery that was committed in
McKinney—i.e., the purse-snatching. Had the defendant in that case been armed
with a weapon, even a concealed one, at the time of the purse-snatching, that would
have been sufficient to render the crime an aggravated robbery under Kansas law.
But, as with the simple crime of purse snatching, nothing about the defendant’s mere
possession of a firearm (or another deadly weapon) would have necessarily caused
not the defendant was armed with a dangerous weapon was determined from the
victim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).
23
the crime to involve “the use, attempted use, or threatened use of violent force
against the person of another.” § 924(e)(2)(B)(i).
Notably, the Ninth Circuit addressed a similar question in Parnell and
concluded that “[t]he mere fact that an individual is armed . . . does not mean he or
she has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like
the Kansas aggravated robbery statute at issue here, the Massachusetts aggravated
robbery statute that was before the court in Parnell did “not require a weapon to be
used or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus
concluded that “[t]here is a material difference between the presence of a weapon,
which produces a risk of violent force, and the actual or threatened use of such
force.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls
within the ACCA’s force clause.”5 Id.
To be sure, the government in this case acknowledges Parnell, but states that it
“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the
government makes no attempt to explain why Parnell’s holding on this point was
incorrect.
In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of
Columbia Circuit distinguished Parnell, but it did so on the basis that the statute of
5
As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the
same conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th
Cir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not
categorically qualify as a violent felony conviction under the ACCA’s force clause).
24
conviction in the case before it—i.e., Maryland armed robbery—required “that the
defendant commit the crime with the use of a dangerous or deadly weapon.” Id.
at 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute
required the use of a dangerous or deadly weapon, then Bong’s prior aggravated
robbery convictions would constitute predicate offenses under the ACCA. But, as
noted, the Kansas aggravated robbery statute does not include this requirement. We
therefore conclude that the Kansas crime of aggravated robbery is not categorically a
“violent crime” for purposes of the ACCA.
In light of our conclusions regarding Bong’s prior Kansas convictions for
robbery and aggravated robbery, we reverse the district court’s denial of Bong’s
§ 2255 motion and remand to the district court for further proceedings. On remand,
the district court will need to determine in the first instance whether Bong’s
remaining convictions are sufficient to support application of the ACCA.
Specifically, Bong has the following convictions that might constitute “crimes of
violence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a
residence; (2) a 1990 Kansas conviction for aggravated escape from custody (he
escaped from the Sedgwick County Community Corrections Center); (3) a 1999
Kansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for
trafficking in contraband in a correctional facility. Bong briefly addresses the
burglary and trafficking convictions in his opening appellate brief, but we conclude it
is proper for the district court to consider these prior convictions in the first instance.
Ineffective assistance of trial and appellate counsel—ACCA sentence
25
The district court also granted Bong a COA on the question of whether his trial
and appellate counsel were ineffective for failing to object to the district court’s
imposition of the ACCA sentence. Having concluded that the district court erred in
basing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery
convictions, it is unnecessary for us to address this ineffective assistance claim.
III
We now turn to the two issues as to which we granted Bong a COA:
(1) whether the district court erred in rejecting his claim that his trial counsel was
ineffective for failing to independently investigate the facts of the alleged crime; and
(2) whether the district court erred in summarily dismissing his claim regarding the
allegedly newly-discovered videos of his stop and arrest (which his counsel now
characterizes as a Brady/Giglio claim).6
Ineffective assistance of trial counsel – failure to investigate
Bong alleged in his original pro se § 2255 motion, and in greater detail in his
pro se reply brief, that his trial counsel was ineffective for failing to investigate the
facts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.
Bong argues that had his trial counsel “conducted even a minimally adequate
investigation, trial counsel would have discovered and presented multiple witnesses
6
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment”);
Giglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,
under Brady, that affects the credibility of a witness whose testimony “may well be
determinative of guilt or innocence”).
26
to corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm
and ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in
turn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.
Relatedly, Bong argues that “the district court erred in disregarding the factual
allegations set forth in [his] second pro se pleading.” Id. Although Bong concedes
that he titled this second pro se pleading a “Reply,” he argues this was “immaterial”
because “pro se pleadings must be liberally construed” and thus the district court was
obligated “to construe the ‘Reply’ as an amendment.” Id.
The district court considered and rejected Bong’s claim that his trial counsel
failed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,
the district court stated:
Defendant’s § 2255 motion fails to identify any material matters
that defense counsel failed to investigate. His massive Reply Brief
identifies a multitude of issues that defendant now claims should have
been further investigated. But defendant fails to address the significant
evidence weighing against his claim that his statement was involuntary,
fails to show that counsel’s performance fell below an objective
standard of reasonableness, and fails to show that the alleged failure to
investigate likely made a difference in the outcome.
Id. at 1068.
[D]efendant fails to cite any material evidence that defense
counsel failed to discover or to address in the course of the proceedings.
Defendant now claims a number of other things could have been
investigated, but most of these items have nothing to do with the issue
of whether defendant possessed the firearm that was found during the
stop. Defendant has now produced an affidavit of an individual named
Roger Schmidt, who says that he talked to defendant and his wife on the
night of the stop. Even if such evidence had been presented, however,
there is no reason to believe it could have affected the outcome of the
trial. Similarly, defendant now presents a statement from an individual
27
named Richard Sipes, who claims to have seen defendant at the
suspected drug house on the evening of the stop, and who says “there
was not a gun around.” But in addition to obvious problems with this
witness’s credibility, his statement shows no basis for knowing whether
defendant had a gun in his waistband or in his car. Any failure to
discover such testimony did not prejudice defendant. Essentially,
defendant’s claim that additional investigation would have produced
evidence to exonerate him is unsupported speculation.
Id. at 1069–70 (citations omitted). At no point did Bong expressly request an
evidentiary hearing on his failure-to-investigate claim and the district court in turn
did not address the need for a hearing.
We review de novo Bong’s ineffective assistance of counsel claim and, in
doing so, accept any underlying factual findings made by the district court unless
they are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.
2014).
We conclude, with one exception, that the district court properly rejected
Bong’s allegations of ineffective assistance as either meritless or time-barred. That
one exception concerns Bong’s allegation that his trial counsel was ineffective for
failing to request copies of any available video recordings of the traffic stop and his
arrest. As we have noted, Bong alleged in his pro se reply brief that at some point in
2016, while he was incarcerated, he contacted the City of Wichita and requested
copies of evidence relevant to his case under KORA. In response, the City of
Wichita allegedly acknowledged that “2 AXON videos (patrol car recording
equipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the
City of Wichita allegedly refused to provide Bong with a copy of the videos due to
28
the fact that he was incarcerated. Id. Bong now argues that these videos necessarily
must have been of his traffic stop and arrest and were improperly suppressed by the
police department or prosecution. Bong in turn alleges that these videos “will show
that [he] never resisted or attempted to escape before Thatcher just threw him to the
ground and began using force on him.” Id.
The district court did not expressly address these allegations in its order
denying Bong’s § 2255 motion. Instead, the district court treated these allegations as
untimely because they were raised for the first time in Bong’s pro se reply brief and
thus, in the district court’s view, fell outside of the one-year time limit set by
AEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new
claims, those claims are barred because they have been raised outside the applicable
one-year statute of limitations.”). The district court failed to consider, however, the
fact that Bong’s § 2255 motion was filed within one year after Bong allegedly
discovered this new evidence. Based upon the materials contained in the record on
appeal, we conclude that the district court should have, at a minimum, determined
“the date on which the facts supporting the claim . . . could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation
period shall run from the latest of . . . the date on which the facts supporting the
claim or claims presented could have been discovered through the exercise of due
29
diligence.”). Consequently, we reverse on this narrow issue of ineffective assistance
of trial counsel and remand to the district court for further consideration.7
Brady/Giglio claims – suppression of video evidence
Bong also challenges the district court’s dismissal of his related Brady/Giglio
claim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”
United States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady
claim requires the defendant to show by a preponderance of the evidence (1) that the
government suppressed evidence, (2) that the evidence was favorable to the
defendant, and (3) that the evidence was material.” Id.
Bong alleged that “[t]hrough local law enforcement actions attributable to the
Government, the Government suppressed the video recordings” of the traffic stop and
his arrest and that “Officer Thatcher presented false testimony denying that any video
recordings existed.” Aplt. Br. at 44. The district court did not expressly address this
claim in its order denying Bong’s § 2255 motion, but instead concluded that it was a
new claim raised for the first time in Bong’s pro se reply brief and was “barred
because [it was] raised outside the applicable one-year statute of limitations.” ROA,
Vol. 1 at 1047 n.1.
As with Bong’s related ineffective assistance claim, the district court failed to
consider the fact that Bong’s § 2255 motion was filed within one year after Bong
7
We note that this ineffective assistance of counsel claim is intertwined with,
and will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the
alleged videotapes of his stop and arrest.
30
allegedly discovered the existence of the video recordings. And, notably, the
government agreed at oral argument that the district court erred in summarily
dismissing the claim as untimely. Consequently, we reverse the district court’s
dismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for
further consideration.8
IV
With respect to Bong’s claims regarding his ACCA sentence, we REVERSE
the district court’s denial of § 2255 relief and REMAND with directions to the
district court to determine whether Bong’s ACCA sentence can be supported by his
non-robbery-related convictions. With respect to Bong’s ineffective assistance of
counsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district
court for further proceedings consistent with this opinion. With respect to Bong’s
Brady/Giglio claim, we REVERSE and REMAND for further proceedings consistent
with this opinion. Bong’s motion for expedited relief in DENIED as moot.
8
According to the government, it has evidence, in particular affidavits from
City employees, directly refuting Bong’s allegations regarding the purported
videotapes. But the government conceded that this evidence is not in the record on
appeal and thus the proper course is for the district court to consider all of the
evidence in the first instance.
31
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People ex rel. Cassar v DeMarco (2017 NY Slip Op 03883)
People ex rel. Cassar v DeMarco
2017 NY Slip Op 03883
Decided on May 12, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 12, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
2017-04865
[*1]The People of the State of New York, ex rel. Christopher J. Cassar, on behalf of Dimitri Jones, petitioner,
vVincent F. DeMarco, etc., et al., respondents.
Christopher J. Cassar, P.C., Huntington, NY (Christopher J. Cassar pro se of counsel), for petitioner.
Thomas J. Spota, named herein as Thomas J. Spota III, District Attorney, Riverhead, NY (Guy Arcidiacono of counsel), respondent pro se and for respondent Vincent F. DeMarco.
Writ of habeas corpus in the nature of an application to reduce bail upon Suffolk County Indictment No. 829/17.
ADJUDGED that the writ is sustained, without costs or disbursements, to the extent of reducing bail on Suffolk County Indictment No. 829/17 to the sum of $100,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the sum of $50,000, as a cash bail alternative, on condition that the defendant surrender any and all passports he may have to the Office of the District Attorney of Suffolk County and is prohibited from applying for any new or replacement passports; and it is further,
ORDERED that upon receipt of a copy of this decision, order and judgment together with proof that the defendant has (1) given an insurance company bail bond in the sum of $100,000 or has deposited the sum of $50,000 as a cash bail alternative, and (2) surrendered any and all passports he may have to the Office of the District Attorney of Suffolk County, and has provided the Office of the District Attorney of Suffolk County with an affidavit attesting that he has not and will not apply for any new or replacement passports, the Warden of the facility at which the defendant is incarcerated, or his or her agent, is directed to immediately release the defendant.
MASTRO, J.P., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
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191 B.R. 174 (1995)
In re Javier CORTEZ; Yolanda Cortez, Debtors.
Javier CORTEZ; Yolanda Cortez, Appellants,
v.
AMERICAN WHEEL, INC., Appellee.
BAP No. CC-95-1496-OVJ. Bankruptcy No. LA94-19061-AA.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Submitted Without Oral Argument November 15, 1995.
Decided December 26, 1995.
*175 *176 Martin D. Gross, Upland, CA, for Appellants.
Marie E. Davis, Gardena, CA, for Appellee.
Before: OLLASON, VOLINN and JONES, Bankruptcy Judges.
OPINION
OLLASON, Bankruptcy Judge:
Discharged chapter 7 debtors[1] have appealed the bankruptcy court's denial of their motion to reopen their bankruptcy case to avoid the lien of a creditor and to enjoin the creditor's foreclosure action. WE AFFIRM.
STATEMENT OF FACTS
On August 19, 1993, Javier and Yolanda Cortez (the "debtors") executed a promissory note in favor of American Wheel, Inc., doing business as California Wheel Co. (the "appellee"). As security for the note, the debtors executed and delivered to the appellee a deed of trust on their residence, located in West Covina, California. The appellee did not record the instrument at that time.
The debtors filed a voluntary chapter 7 bankruptcy petition on March 9, 1994. They listed the appellee as an unsecured creditor with a claim amount of $53,902.22. On July 12, 1994, the debtors received a discharge in bankruptcy.
On December 19, 1994, the appellee recorded the deed of trust with the Los Angeles County Recorder's office. Thereafter, on December 30, 1994, the appellee filed an action in Los Angeles County Superior Court to judicially foreclose the deed of trust. The complaint sought, in addition to foreclosure, a deficiency judgment against the debtors.
The debtors filed a motion to reopen the bankruptcy case on March 1, 1995. Following a hearing, the bankruptcy court entered an order denying the motion on April 20, 1995. The transcript of this hearing has not been made part of the record on appeal.
Following the bankruptcy court hearing, the appellee dismissed those counts in the state court complaint which sought to recover in personam judgments.
*177 The debtors timely appealed the bankruptcy court's order.
ISSUES
1. Whether the bankruptcy court abused its discretion by denying the debtors' motion to reopen the bankruptcy case to avoid the deed of trust on their residential real property which was unperfected at the time of the bankruptcy petition.
2. Whether the appellee's post-discharge recordation of the deed of trust and foreclosure action violated the discharge injunction of § 524.
STANDARD OF REVIEW
A bankruptcy court's decision on reopening a bankruptcy case and granting relief to a debtor is reviewed for abuse of discretion. In re Cisneros, 994 F.2d 1462, 1464-65 (9th Cir.1993). Under the abuse of discretion standard, a reviewing court will not reverse unless it has a definite and firm conviction that the court below committed clear error of judgment in the conclusion it reached upon weighing the relevant factors. United States v. Plainbull, 957 F.2d 724, 725 (9th Cir.1992).
Whether or not a state court suit is barred by § 524 is a question of law reviewed de novo. In re Beeney, 142 B.R. 360, 362 (9th Cir. BAP 1992).
DISCUSSION
The Parties' Contentions
The debtors contend that the appellee does not have a valid lien because the deed of trust was not recorded until after the chapter 7 discharge; that the appellee was, therefore, an unsecured creditor who cannot collect upon a discharged debt or perfect its lien through recordation following bankruptcy.
The appellee, on the other hand, contends that its lien is a valid security interest under California law between it, as mortgagee, and the debtors, as mortgagors. It argues that the lien survives bankruptcy intact, that its right to foreclose the lien also survives, and that it may proceed to prosecute an in rem action to foreclose the lien.
Although the debtors did not provide a transcript of the hearing on their motion, they allege that the bankruptcy court denied their motion without discussion, that the facts are not disputed and their appeal concerns purely legal issues. The appellee does not dispute these allegations, but argues that the debtors have failed to provide an adequate record on which to reverse the bankruptcy court.
Since the bankruptcy court ruled on the motion without discussion, and did not enter separate findings of fact and conclusions of law, the debtors cannot provide anything further than the record before us.
A Valid but Unperfected Lien that has not been Avoided Survives Bankruptcy
It is well settled that valid, perfected liens and other secured interests pass through bankruptcy unaffected. Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 778-79, 116 L.Ed.2d 903 (1992). The majority of courts hold, and the legislative history of § 506(d) establishes, that valid liens that have not been disallowed or avoided survive the bankruptcy discharge of the underlying debt. In re Simmons, 765 F.2d 547, 556-57 (5th Cir.1985); Estate of Lellock v. Prudential Ins. Co. of America, 811 F.2d 186, 188-89 (3d Cir.1987); see also In re Hagemann, 86 B.R. 125, 126 (Bankr.N.D.Ohio 1988) (listing cases); Chandler Bank of Lyons v. Ray, 804 F.2d 577, 579 (10th Cir.1986) ("for sections in the Code which relate to automatic stays and to lien avoidance to have any substance at all necessarily leads to the conclusion that unavoided liens pass through § 506(d) without action by the lien holder").[2]
*178 Generally, a mortgage is defined as "an interest in real property that secures a creditor's right to repayment." Johnson v. Home State Bank, 501 U.S. 78, 82, 111 S.Ct. 2150, 2153, 115 L.Ed.2d 66 (1991). The creditor ordinarily has a right to foreclose on the mortgaged property or to sue to establish the debtor's in personam liability. Id.
Proper execution and delivery of a deed of trust is a grant of an interest in real property under California law; thus a deed of trust is a lien or charge upon the property which is created upon delivery of the instrument. See Cal.Civ.Code § 1054 (West 1982) (grant becomes effective upon delivery by grantor); In re Van Ness Assocs., Ltd., 173 B.R. 661, 666 (Bankr.N.D.Cal.1994); B.E. Witkin, SUMMARY OF CALIFORNIA LAW, SECURITY TRANSACTIONS IN REAL PROPERTY §§ 35, 39, at 549-51 (9th ed. 1987).
In California, the deed of trust is an instrument providing security or collateral which must be perfected by recordation to bind subsequent purchasers. Cal.Civ.Code § 1214 (West Supp.1995). The deed of trust is not perfected until it is recorded in the office of the County Recorder. Cal.Civ.Code § 1213 (West 1982 & Supp.1995); In re Schuman, 81 B.R. 583, 587 (9th Cir. BAP 1987). Nevertheless, California law provides that an unrecorded instrument is valid between the parties and those who have notice of it. In re Weisman, 5 F.3d 417, 420 (9th Cir.1993); Cal.Civ.Code § 1217 (West 1982).
An unrecorded, thus unperfected, deed of trust is subject to avoidance by the bankruptcy trustee as a hypothetical lien creditor, pursuant to § 544. The appellee's unperfected deed of trust was subject to avoidance during the debtors' bankruptcy. However, because it was not avoided, it survived the bankruptcy, even though it was not perfected. In re Eakin, 153 B.R. 59, 60 (Bankr.D.Idaho 1993) (so long as the lien, although it could have been, was not avoided, a valid security interest passes through a bankruptcy filing unaffected).
In the instant case, while the appellee was listed as an unsecured creditor and the debt was discharged, the appellee was actually a secured creditor under California law by virtue of the deed of trust lien which had not been avoided in bankruptcy. Its lien survived the bankruptcy; thus, the bankruptcy court did not err by denying the debtors' motion to reopen the case to avoid the lien.
The Appellee's Post-discharge Recordation of the Deed of Trust and Foreclosure Action Did Not Violate § 524.
In the case of a surviving lien, a bankruptcy discharge "extinguishes only one mode of enforcing a claim namely, an action against the debtor in personam while leaving intact another namely, an action against the debtor in rem." Johnson, 501 U.S. at 84, 111 S.Ct. at 2154.
The appellee's recordation of the deed of trust as a procedural step in its foreclosure action, gave it no more rights against the real estate than it had before the bankruptcy. The appellee was simply enforcing its valid lien which survived the bankruptcy.
The debtors cite In re Funket, 27 B.R. 640 (Bankr.M.D.Pa.1982), in which a mortgagee recorded its mortgage following the chapter 7 debtors' discharge and closure of the bankruptcy case. The bankruptcy court held that § 524 barred the creditor "from using any means, including recordation of a mortgage, to obtain payment of a discharged debt." Id. at 642.
Section 524(a) provides that a discharge:
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, *179 to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; and
(3) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect or recover from, or offset against, property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim. . . .
11 U.S.C.A. § 524 (West 1993 and Supp. 1995).
Subsection 524(a)(2) was amended with the above language in 1984. Pub.L. 98-353, Title III, §§ 308, 455, July 10, 1984, 98 Stat. 354, 376. In 1982, at the time of the Funket decision, § 524(a)(2) stated that a discharge:
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived;
Pub.L. 95-598, Nov. 6, 1978, 92 Stat. 2592 (emphasis added).
It is evident that the purpose of the section was not to prevent a creditor from exercising valid in rem rights, but to prevent any actions against property of the debtor acquired after bankruptcy to satisfy the discharged personal liability. Chandler Bank of Lyons, 804 F.2d at 579.
In addition, under Pennsylvania law, an unrecorded mortgage does not attach to the subject real estate or grant any estate in it unless it is recorded within six months after the granting of the mortgage. 21 Pa. Cons.Stat.Ann. § 621 (1955); In re Fisher, 7 B.R. 490, 495-96 (W.D.Pa.1980). While Funket did not explicitly cite the Pennsylvania law, its reasoning and the language of its opinion led another court to conclude that the Funket court "found the creditor's re-recording of the mortgage to be something other than a good-faith attempt to enforce rights against the subject real estate." In re Landmark, 48 B.R. 626, 629 (Bankr.D.Minn.1985).
While seeking a deficiency judgment was arguably a violation of the stay, the appellee dismissed its state court counts for a deficiency judgment against the debtors. The primary focus of dispute was lien avoidance. The appellee has not violated § 524 by enforcing its valid deed of trust on the real property through recordation and foreclosure.
CONCLUSION
The bankruptcy court did not abuse its discretion by denying the debtors' motion to reopen their bankruptcy case when there was no legal basis for granting the relief sought. The appellee's actions did not violate the discharge injunction of § 524. The bankruptcy court's order is AFFIRMED.
NOTES
[1] Unless otherwise indicated, all references to "chapter" or "section" are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330; all references to "rule" are to the Federal Rules of Bankruptcy Procedure ("Fed.R.Bankr.P.") rules XXXX-XXXX.
[2] Section 506 provides:
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void unless
(1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or
(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.
Section § 506(d)(2) provides that a lien is not void for the reason that no proof of claim was filed, no matter if the debtor schedules the claim as unsecured. See In re Eakin, 153 B.R. 59, 60 (Bankr.D.Idaho 1993). In this case, the parties have not provided evidence that the appellee filed a proof of claim. If the appellee did not file a proof of claim, § 506(d)(2) would mandate that its lien would not be void for that reason alone. Id. If a proof of claim were filed, the claim would have been deemed a secured claim unless it were disallowed or an action were brought to avoid the lien. See § 502(a). According to the facts before us, the appellee's claim was not disallowed nor was the lien avoided. "[V]alid liens that have not been disallowed or avoided survive the bankruptcy discharge of the underlying debt." Estate of Lellock, 811 F.2d at 189 (emphasis added); Chandler Bank of Lyons, 804 F.2d at 579.
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In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00980-CR
NO. 01-01-00981-CR
____________
EZEKIEL RAMOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause Nos. 855442 & 855443
MEMORANDUM OPINION
Appellant, Ezekial Ramos, pled guilty to two separate offenses of aggravated
assault with a deadly weapon, and the trial court assessed punishment for each
offense at 20 years’ confinement in prison. In his sole point of error, appellant
contends that the trial court erred by not conducting a hearing on appellant’s motion
for new trial based on ineffective assistance of counsel. We affirm.
Background
Appellant’s assault convictions resulted from a September 2000 shooting.
Appellant and an accomplice broke a residence window, inserted a firearm through
the window, and fired multiple rounds into the residence. The rounds struck and
injured two occupants of the residence. As a result of the shootings, appellant was
charged with and pled guilty to two separate offenses of aggravated assault with a
deadly weapon. After conducting a presentence investigation (PSI) hearing, the trial
court sentenced appellant. Appellant then timely filed his motion for new trial.
Appellant’s Motion for New Trial
In his motion for new trial, appellant contended that his trial counsel was
ineffective for not presenting mitigating evidence at the PSI hearing. Accompanying
appellant’s motion for new trial were affidavits indicating that appellant’s
accomplice, and not appellant, fired the rounds into the residence. Appellant argued
that, had trial counsel presented this evidence at his PSI hearing, the trial court would
not have assessed the maximum punishment.
After examining the motion and
accompanying affidavits, the trial court denied appellant’s motion for new trial
without holding a hearing.
In contending that the trial court abused its discretion in not holding a hearing
on his motion for new trial, appellant relies on Martinez v. State, in which the Court
of Criminal Appeals held that a trial court abuses its discretion in failing to hold a
hearing when an accused presents a motion for new trial raising issues not
determinable from the record that could entitle the accused to relief. 74 S.W.3d 19,
21 (Tex. Crim. App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex. Crim.
App. 2000)). Appellant argues that his motion for new trial raised ineffective
assistance of counsel, that ineffective assistance of counsel is a claim not
determinable from the record, and that affidavits attached to his motion showed that
reasonable grounds existed to support a claim that trial counsel’s representation may
have been ineffective.
Appellant’s reliance on Martinez is misplaced. In Martinez, the appellant filed
a “Motion for a New Trial and Hearing Thereon,” requesting not only that the trial
court grant his motion for new trial, but that the trial court also hold a hearing on his
motion. Martinez, 74 S.W.3d at 20. In this case, nothing in the record suggests that
appellant wanted or requested a hearing on his motion. Furthermore, the motion itself
makes no request for a hearing and simply seeks a new trial. Under circumstances
such as these, when the movant does not request a hearing, the trial court is not
required to convene a hearing on a motion for new trial. See Gallegos v. State, 76
S.W.3d 224, 228 (Tex. App.—Dallas 2002, pet. ref’d); Brooks v. State, 894 S.W.2d
843, 847 (Tex. App.—Tyler 1995, no pet.). Because appellant did not request a
hearing on his motion for new trial, we hold that the trial court did not abuse its
discretion in declining to hold one.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.4.
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Affirmed and Memorandum Opinion filed February 27, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00673-CV
IN THE INTEREST OF K.G.S. AND T.W.S., CHILDREN.
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2009-01569A
MEMORANDUM OPINION
This case arises out of a suit to modify a parent-child relationship. The
mother of the children affected by the suit appeals the trial court’s dismissal of
counterclaims she filed against the Texas Department of Family and Protective
Services (TDFPS) after TDFPS intervened in the suit. Concluding that each of the
mother’s counterclaims is either barred by sovereign immunity or unripe, we
affirm.
BACKGROUND
The children’s parents divorced in 2009. The final divorce decree appointed
both parents as joint managing conservators of the two children, with the mother
receiving the exclusive right to designate the children’s primary residence. The
final divorce decree also contained a provision enjoining the parents from
consuming alcohol within twenty-four hours of having possession or access to the
children.
In October of 2011, TDFPS received a referral alleging that the mother was
negligently supervising her children as a result of her reported alcohol abuse. A
division of TDFPS, Child Protective Services (CPS), investigated the allegations.
A caseworker conducted a family assessment on February 1, 2012. During the
assessment, the mother admitted drinking wine every night and having used
cocaine two months prior.
The father filed a petition to modify the parent-child relationship on
February 6. His petition alleged a material and substantial change in circumstances
since the final divorce decree, including an allegation that the mother had a history
or pattern of child neglect. The father requested temporary orders appointing him
as sole managing conservator and limiting the mother to supervised visitation.
Two days after the father filed his petition, the mother began receiving
services from TDFPS’s Family Based Safety Services. The mother voluntarily
placed the children with their maternal grandmother while services were provided.
The mother underwent a “drug/alcohol assessment” in which she confirmed recent
cocaine use; the assessment “indicated she needed treatment.” She also
participated in a single therapy session, but refused recommended random drug
testing and substance abuse treatment. The therapist from the session
recommended that the mother’s visitations remain supervised.
2
The mother removed the two children from their grandmother’s home on
March 31. Three days later, TDFPS intervened in the parents’ custody dispute and
requested immediate appointment as temporary sole managing conservator of the
children. TDFPS’s petition was accompanied by the affidavit of a CPS
caseworker.
TDFPS requested that the trial court conduct a full adversary hearing and
make certain temporary orders. Among other things, TDFPS asked the court to
order both parents (1) to make payments for the temporary support of the children,
(2) to submit to a family assessment and psychological examination, (3) to attend
counseling sessions to address the specific issues that led to the children’s removal,
(4) to attend parenting classes as required by TDFPS, (5) to submit to a drug and
alcohol assessment followed by a substance abuse treatment program if needed,
and (6) to comply with each requirement set out in TDFPS’s service plan during
the pendency of the suit.
The mother filed counterclaims against TDFPS, as well as a motion to strike
TDFPS’s intervention. The original counterclaim asserted two causes of action
against TDFPS. The mother sought her “actual damages” and reasonable
attorney’s fees under federal racketeering and civil rights statutes, as well as
certain declaratory and injunctive relief. See 18 U.S.C. § 1964(c) (2012); 42
U.S.C. §§ 1983, 1988 (2012).
In her first cause of action, the mother sought a declaration that Rule
204.4(a) of the Texas Rules of Civil Procedure, which permits the court to order
psychological examinations of the parties, violates the Fifth Amendment privilege
against self-incrimination. See U.S. Const. amend. V. The mother further sought
to enjoin CPS from compelling psychological evaluations of parents it alleges are
neglecting, injuring, abusing, or sexually abusing the children who are the subject
3
of the suit. The mother argued she was being forced to choose between
cooperating with the evaluation at the risk of incriminating herself in child abuse,
or not cooperating with the evaluation at the risk of losing her children. 1
The mother also sought declaratory and injunctive relief regarding the
constitutionality of an alleged CPS policy of “demanding” that parents submit to
drug testing. The mother alleged that the requests for drug testing are warrantless
searches in violation of the Fourth Amendment. See U.S. Const. amend. IV. The
mother further alleged that she was subjected to such a warrantless search.
The mother also noted that TDFPS sought to remove her children from her
care, custody, and control, and to have CPS appointed temporary and permanent
managing conservator of the children, which the mother alleged would have a
“substantial adverse effect on [her] First Amendment right of association with her
children.” See U.S. Const. amend. I.
In a second cause of action, the mother alleged CPS was committing “Mail
Fraud,” see 18 U.S.C. § 1341 (2012), by sending pleadings and other documents
soliciting child support payments in a scheme to defraud parents. The mother
argued this conduct constituted a “pattern of racketeering activity” as defined in
the federal Racketeer Influenced and Corrupt Organizations Act (RICO) statutes.
See 18 U.S.C. § 1961. The mother asked the trial court to declare CPS a
continuing criminal enterprise and issue appropriate orders.
On May 2, 2012, TDFPS filed an original answer to the mother’s
counterclaims as well as a plea to the jurisdiction. In its plea to the jurisdiction,
1
During the hearings in the trial court, the mother also asserted the Fifth Amendment
privilege against self-incrimination to avoid answering questions regarding whether she violated
the divorce decree’s provisions enjoining her from consuming alcohol within twenty-four hours
of her access to the children. The trial court allowed the mother to invoke the privilege and
refuse to answer those questions while on the witness stand.
4
TDFPS argued that the mother lacked standing to assert her RICO claims as well
as her constitutional challenges brought under section 1983, and that it was entitled
to sovereign immunity from suit. TDFPS also argued that the lack of jurisdiction
over the section 1983 and RICO claims meant the court also lacked jurisdiction to
issue a declaratory judgment.
On May 8, the trial court ordered the parents to report immediately to a
screening center and provide hair, urine, and blood samples for drug and alcohol
screening. The trial court also referred the mother to an assessment center for a
forensic evaluation for alcohol abuse and cocaine and marijuana use.
The mother responded to the plea to the jurisdiction on May 12, arguing that
sovereign immunity was expressly waived by statute and conduct and that state
courts have concurrent jurisdiction over RICO and civil rights claims. The mother
asserted that TDFPS’s intervention in the suit affecting the parent-child
relationship sufficed to waive sovereign immunity. She also argued that section
105.002 of the Texas Civil Practice and Remedies Code waived sovereign
immunity.
Both parties filed supplemental briefing on the availability of declaratory
relief. TDFPS argued that declaratory judgments are unavailable if the court does
not have jurisdiction over the underlying claim. TDFPS asserted that the trial court
did not have jurisdiction over the mother’s underlying claims because the claims
were not ripe and because it retained sovereign immunity.
TDFPS argued a Fifth Amendment claim would only be ripe if the mother,
faced with “a realistic threat of self-incrimination,” was required to meet with a
psychologist and take drug and alcohol tests despite having invoked the privilege
against self-incrimination. TDFPS argued that the mother had not identified any
criminal activity in which she might incriminate herself. Thus, according to
5
TDFPS, the mother has not demonstrated that any actual injury is likely to occur.
TDFPS also argued that the mother’s claims did not fit within the waiver of
immunity contained in the Uniform Declaratory Judgment Act (“UDJA”), Tex.
Civ. Prac. & Rem. Code §§ 37.001–.011 (West 2008), because she did not plead a
viable constitutional claim. TDFPS argued that the privilege against self-
incrimination does not convey a right to “wholly refuse to submit to a
psychological evaluation or drug and alcohol tests.” Furthermore, according to
TDFPS, the privilege against self-incrimination would only preclude it from
obtaining termination of parental rights solely because of the refusal to submit to
the evaluations.
In her supplemental brief, the mother argued that because she sought a
declaratory judgment that Rule 204.4(a) is unconstitutional, the UDJA waived
immunity for her claim for declaratory relief.
The trial court granted TDFPS’s plea to the jurisdiction and dismissed the
mother’s claims against TDFPS with prejudice on July 5. The mother filed a
notice of accelerated appeal on July 12. On August 17, this Court issued an order,
upon TDFPS’s motion, abating the interlocutory appeal in order for the trial court
to conduct a status hearing no later than August 24. TDFPS also filed a motion for
severance in the trial court, which the court granted on October 30, making its
order granting the plea to the jurisdiction a final judgment. The mother filed an
amended notice of appeal, and this appeal followed.
On August 20, 2012, after the trial court granted the plea to the jurisdiction
but before the severance order, the mother filed a self-styled “First Amended
Counterclaim.” In it, she added as counter-defendants two caseworkers for
TDFPS, both individually and in their official capacities. The mother also added a
request for declaratory relief regarding the constitutionality under the First
6
Amendment of a provision of the Family Code giving CPS the “right to direct the
religious and moral training of her children.” See Tex. Fam. Code Ann. § 153.371
(West 2008) (listing rights and duties of nonparents appointed temporary managing
conservators). 2
ANALYSIS
On appeal, the mother challenges the trial court’s order granting TDFPS’s
plea to the jurisdiction and dismissing her counterclaims. The mother raises three
issues: (1) whether sovereign immunity precludes declaratory and injunctive relief
against the State; (2) whether the state waives sovereign immunity by intervening
in a pending lawsuit and seeking affirmative relief; and (3) whether the state
litigates like any other party, such that a counterclaim may be asserted against it
without being barred by sovereign immunity. We consolidate her issues into one:
whether the trial court erred in granting the plea to the jurisdiction.
The mother argues that the trial court erred in granting the plea to the
jurisdiction because (1) sovereign immunity was waived for any counterclaims
when TDFPS intervened in the suit; (2) even if sovereign immunity otherwise
applied, it did not preclude her from seeking declaratory or injunctive relief against
TDFPS; and (3) she was not afforded an opportunity to amend her pleadings before
the plea to the jurisdiction was sustained. We consider each argument below.
I. Standard of review
We review de novo a trial court’s order granting a plea to the jurisdiction.
Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004);
Moore v. Univ. of Houston—Clear Lake, 165 S.W.3d 97, 101 (Tex. App.—
2
The mother previously petitioned this Court for a writ of mandamus, challenging the
trial court’s June 25, 2012 order granting TDFPS the right “to direct the moral and religious
training of the child.” In re Solley, No. 14-12-00680-CV, 2012 WL 3135549, at *1 (Tex. App.—
Houston [14th Dist.] Aug. 2, 2012, orig. proceeding) (mem. op.). We denied the petition. Id.
7
Houston [14th Dist.] 2005, no pet.). Where the jurisdictional challenge is based on
the pleadings, we “construe the pleadings liberally in favor of the plaintiff[] and
look to the pleader[’s] intent.” Miranda, 133 S.W.3d at 226; see also Garcia v.
Kubosh, 377 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Unless the pleadings “affirmatively negate the existence of jurisdiction,” the plea
to the jurisdiction should not be granted without allowing the plaintiffs an
opportunity to amend. Miranda, 133 S.W.3d at 227; City of Houston v. Ranjel,
407 S.W.3d 880, 893 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We cannot
alter even an erroneous ruling if the appellant does not assign error to it, however.
Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—
Houston [1st Dist.] 2002, no pet.).
Where the trial court does not state the grounds upon which it grants a plea
to the jurisdiction, an appellant must attack each asserted ground that could fully
support the adverse ruling. Sw. Bell Tel., L.P. v. Harris Cnty., 267 S.W.3d 490,
494 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Otherwise, we must
presume that any assigned error would be harmless in light of the unchallenged
alternative justifications for the ruling. See id.; Britton, 95 S.W.2d at 681–82.
Here, in granting TDFPS’s plea to the jurisdiction, the trial court did not
specify which of the three asserted grounds—sovereign immunity, standing, and
ripeness—were the basis of its decision. Therefore, the mother must show that
none of the asserted grounds constituted an incurable jurisdictional defect to her
claims. See Miranda, 133 S.W.3d at 227.
II. The trial court properly dismissed the mother’s section 1983 and RICO
claims for damages because sovereign immunity bars them.
The mother argues that TDFPS voluntarily submitted to the trial court’s
jurisdiction by intervening in this suit, thereby waiving its sovereign immunity
8
from her claims seeking damages under section 1983 and RICO. She contends that
Texas Rule of Civil Procedure 97(a) and (b), governing compulsory and
permissive counterclaims, expressly authorizes her claims. We disagree and hold
that TDFPS’s immunity from her section 1983 and RICO claims has not been
waived.
A. Neither Congress nor the Legislature has statutorily waived
Texas’s sovereign immunity from section 1983 or RICO claims.
“The Eleventh Amendment to the United States Constitution protects the
State of Texas from suit in its own courts for an alleged violation of federal law.”
Hidalgo Cnty. v. Dyer, 358 S.W.3d 698, 709 (Tex. App.—Corpus Christi 2011, no
pet.) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989)). This
immunity extends to state agencies such as TDFPS. See San Antonio Indep. Sch.
Dist. v. McKinney, 936 S.W.2d 279, 281–82 (Tex. 1996) (“Under federal law,
some state agencies exercising state power are permitted to invoke the Amendment
to protect the state treasury from liability that would have had essentially the same
practical consequences as a judgment against the state itself.”); see also Fed. Sign
v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (“This Court has long
recognized that sovereign immunity, unless waived, protects the State of Texas, its
agencies and its officials from lawsuits for damages, absent legislative consent to
sue the State.”). Although Congress has the power to abrogate state sovereign
immunity under section five of the Fourteenth Amendment, it must do so with “an
unequivocal expression of congressional intent.” Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 240 (1985) (internal quotation marks omitted).
Alternatively, the State of Texas may waive its immunity and consent to suit. Id.
The Texas Legislature also must use “clear and unambiguous language” to waive
immunity. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177
(Tex. 1994).
9
Texas’s sovereign immunity has not been waived legislatively for claims
brought under either of the statutes on which the mother relies. The enactment of
section 1983 did not “disregard the well-established immunity of a State from
being sued without its consent.” Will, 491 U.S. at 67; see also Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). The mother has not re-urged
the appropriateness of her RICO claims on appeal, and consequently her brief does
not provide any argument or authority suggesting that the RICO statutes dispensed
with state sovereign immunity. 3
Nor does Rule 97 concerning counterclaims provide a waiver. Its general
language allowing a pleading to state “any claim” against “any opposing party”
does not clearly and unambiguously waive sovereign immunity. See Univ. of Tex.
Med. Branch at Galveston, 871 S.W.2d at 177.
B. TDFPS did not waive its sovereign immunity by intervening in the
underlying custody dispute.
The mother also argues that TDFPS waived its sovereign immunity to any
counterclaim by intervening in this suit affecting the parent-child relationship.
We disagree. Because the damages sought by the mother could not offset any
affirmative monetary relief sought by TDFPS, we hold that TDFPS’s intervention
did not waive sovereign immunity.
3
To the extent that courts have addressed this question, they have answered it in the
negative. See, e.g., Concho Residential Servs., Inc. v. MHMR Servs. for Concho Valley, No. 03-
9800022-CV, 1999 WL 644727, at *6 (Tex. App.—Austin 1999, pet. denied) (mem. op., not
designated for publication) (RICO claims failed because appellees were “entitled to sovereign
immunity from these claims”); see also Chaz Constr., LLC v. Codell, 137 Fed. Appx. 735, 743
(6th Cir. 2005) (not designated for publication) (“RICO does not arise under § 5 of the
Fourteenth Amendment,” and thus does not fall within Congress’s power to waive sovereign
immunity); Weaver v. United States, 98 F.3d 518, 521 n.2 (10th Cir. 1996) (RICO statutes did
not provide an express waiver of sovereign immunity).
10
As the supreme court has noted, a lack of immunity from suit could “hamper
governmental functions” if tax resources must be diverted from their intended
purposes to be used for defending lawsuits and paying judgments. Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006). Thus, courts generally
defer to the Legislature to waive sovereign immunity because it is “better suited to
address the conflicting policy issues involved.” Id.
But in situations where “the opposing party’s claims can operate only as an
offset to reduce the government’s recovery,” the potential of an adverse judgment
would not pose the same threat to the governmental entity’s fiscal planning. See
id. Furthermore, a governmental entity has presumably made the decision to
expend resources on litigation prior to “inject[ing] itself into or choos[ing] to
engage in litigation to assert affirmative claims for money damages.” Id. Thus,
where the governmental entity files suit for damages, either in the first instance or
as an intervenor, such suits “encompass[] a decision to leave its sphere of
immunity from suit for claims against it which are germane to, connected with, and
properly defensive to claims the [entity] asserts.” Id. at 377.
Here, the mother’s counterclaims could not offset any monetary relief sought
by TDFPS. TDFPS requested orders requiring the parents to make payments for
the temporary support of the children. See Tex. Fam. Code Ann. § 154.001(b)
(West Supp. 2013). The only counterclaims or offsets allowed against child
support arrearages are those provided for by Title 5 of the Family Code. See Tex.
Fam. Code Ann. § 157.263(b-1) (West Supp. 2013) (“[T]he court may not reduce
or modify the amount of child support arrearages but, in confirming the amount of
arrearages, may allow a counterclaim or offset as provided by this title.” (emphasis
added)). In a case construing section 157.263’s predecessor, section 157.262, 4 our
4
Act of Apr. 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184,
11
sister court noted that although the subchapter “contains no description of any
applicable counterclaims or offsets,” a court “may not go outside the bounds of the
subchapter to fashion counterclaims and offsets.” Att’y Gen. of Tex. v. Stevens, 84
S.W.3d 720, 723 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (emphasis
removed). Thus, any money damages the mother might otherwise recover under
section 1983 or the RICO statutes could not be offset against the child support
payments sought by TDFPS.
Because a judgment in favor of the mother would not offset the relief sought
by TDFPS, such a judgment could jeopardize TDFPS’s fiscal planning, which
indicates that the Legislature should decide whether sovereign immunity should be
waived. See Reata Constr. Corp., 197 S.W.3d at 375. Because there is no
legislative waiver, we affirm the trial court’s dismissal of the mother’s RICO and
section 1983 claims.
III. The mother’s self-incrimination claim was properly dismissed because it
was not ripe.
The trial court also properly granted the plea to the jurisdiction as to the
mother’s Fifth Amendment challenge to TDFPS’s request that she undergo a
psychological evaluation under Rule 204.4(a). The mother was not entitled to a
declaration regarding whether such an evaluation would violate her privilege
against self-incrimination because that claim was not ripe at the time of filing.
Moreover, to the extent the claim has since matured, the mother has not shown an
injury.
Ripeness “is a threshold issue that implicates subject matter jurisdiction.”
Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439,
repealed by Act of Sept. 1, 2011, 82d Leg., R.S., ch. 508, § 24, 2011 Tex. Gen. Laws 1264,
1269.
12
442 (Tex. 1998). Stemming in part from the prohibition on advisory opinions, “the
ripeness doctrine serves to avoid premature adjudication.” Id. at 442–43.
Assessing a claim’s ripeness requires courts to evaluate (1) “the fitness of
the issues for judicial decision,” and (2) “the hardship to the parties of withholding
court consideration.” Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001) (quoting
Abbot Labs. v. Gardner, 387 U.S. 136, 149 (1967)). When ripeness is premised on
the threat of harm, the harm must be imminent, rather than “conjectural,
hypothetical, or remote.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852
(Tex. 2000). The facts must be sufficiently developed at the time of filing to
demonstrate that the claimed imminent injury does not remain contingent on some
future uncertainty. Id. at 851–53; but see Del Rio, 66 S.W.3d at 252 (“[A] claim’s
lack of ripeness when filed is not a jurisdictional infirmity requiring dismissal if
the case has matured.”). A plea to the jurisdiction is properly granted if the
plaintiff “cannot demonstrate a reasonable likelihood that the claim will soon
ripen.” See Drexel Corp. v. Edgewood Dev., Ltd., 14-13-00353-CV, 2013 WL
5947007, at *3 (Tex. App.—Houston [14th Dist.] Nov. 7 2013, no pet.) (internal
quotations omitted).
Here, the mother complains of the threat of harm posed by her “Hobson’s
choice” of submitting to a psychological evaluation or potentially losing her
children if she appears uncooperative. This alleged dilemma did not present a ripe
claim under the Fifth Amendment when the mother filed her counterclaim.
The Fifth Amendment privileges the mother “not to answer official
questions put to [her] in any . . . proceeding, civil or criminal, formal or informal,
where the answers might incriminate [her] in future criminal proceedings.”
Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003) (quoting Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973)). However, the mother “may not employ the
13
privilege to avoid giving testimony that [she] simply would prefer not to give.”
Roberts v. United States, 445 U.S. 552, 560 n. 7 (1980).
In civil suits, 5 the court, and not the witness, is the arbiter of whether the
privilege applies. In re Speer, 965 S.W.2d 41, 46 (Tex. App.—Fort Worth 1998,
no pet.). That determination is made as to each individual question for which the
privilege is asserted. Burton v. West, 749 S.W.2d 41, 46 (Tex. App.—Houston [1st
Dist.] 1998, no writ); see also In re Commitment of Browning, 113 S.W.3d 851,
862 n.10 (Tex. App.—Austin 2003, pet. denied) (“[B]lanket assertions of the
privilege are impermissible in civil cases.”).
Without knowing what questions the psychologist might ask during the
evaluation, it would have been impossible for the trial court to assess on a
question-by-question basis whether the mother’s assertion of the privilege would
be permissible. As such, the mother’s assertion of privilege was not fit for judicial
resolution at the time she filed her counterclaims, because any injury would be
contingent upon the content of unknown questions which might be asked in the
evaluation, the answers to which might later be introduced to incriminate the
mother. 6
5
We note that some “civil” proceedings are treated as criminal for purposes of the self-
incrimination clause where “the primary purpose of the proceeding is punishment.” See Murray
v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360, 367 (Tex. App.—Austin 2009, no
pet.) (citing Allen v. Illinois, 478 U.S. 364 (1986)). However, “the purpose of the State’s
intervention in the parent-child relationship is to protect the best interests of the children, not to
punish parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). This does not
mean that we ignore the potential that the mother will eventually lose possession of her children,
as the ripeness inquiry includes reference to the hardship of withholding court consideration. See
Del Rio, 66 S.W.3d at 250.
6
Although the mother participated in a substance abuse assessment prior to TDFPS’s
intervention, it was not as the result of a court order. Thus, that assessment cannot serve as a
predicate for declaratory or injunctive relief regarding a rule authorizing court-ordered
assessments.
14
Furthermore, withholding court consideration did not pose a significant
hardship as the mother would have an additional opportunity to assert the privilege
not to answer individual questions in the actual evaluation. See In re Verbois, 10
S.W.3d 825, 828 (Tex. App.—Waco 2000, orig. proceeding) (“Upon submitting to
such an evaluation . . . [i]f an inquiry calls for an answer that might reasonably
present a hazard of self-incrimination . . . he may refuse to answer . . . .” (internal
citations and quotations omitted)). The mother’s contention that appearing
uncooperative would result in the loss of her parental rights is too conjectural and
remote to serve as the basis for a ripe claim at this stage. The trial court is the
arbiter of the mother’s parental rights, and there is nothing in the record to indicate
that the court would hold a successful assertion of the privilege against the mother
in determining whether to modify the parent-child relationship.
To the extent that the claim “matured” as a result of the trial court’s May 8
order of a forensic evaluation, see Del Rio, 66 S.W.3d at 252, the record
affirmatively negates that an injury has since occurred. See Ranjel, 407 S.W.3d at
893 (holding that the “evidence does not support further amendments that would
cure [the] jurisdictional deficiency”). Although a licensed chemical dependence
counselor appeared during the full adversary hearing on the parent-child
relationship, the counselor did not testify as to whether the mother had consumed
alcohol within twenty-four hours of her possession of the children (and thus
violated a court order), or whether the mother had sexually or physically abused
her children. Thus, any statements the mother may have made to the counselor
that would tend to incriminate her were not introduced into evidence.
Because the record affirmatively negates the existence of a ripe declaratory
judgment claim under the Fifth Amendment, we affirm the trial court’s grant of the
plea to the jurisdiction as to that claim.
15
IV. Texas has not waived immunity to sue TDFPS for unreasonable
searches under the Fourth Amendment.
The mother next argues that sovereign immunity does not bar her claim for
declaratory and injunctive relief alleging a Fourth Amendment violation. The
mother’s Fourth Amendment challenge does not fall within the limited waiver of
immunity contained in the UDJA, however. Nor does her claim fall within the
ultra vires exception to sovereign immunity. Accordingly, the trial court lacked
jurisdiction over this claim.
The mother’s Fourth Amendment challenge does not fall within the scope of
the express waiver in the UDJA. Although TDFPS might “be a proper party to a
declaratory judgment action that challenges the validity of a statute,” Tex. Dep’t of
Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011), the mother has not challenged
the validity of a statute. Instead, the mother sought a declaration that TDFPS’s
“practice of requiring parents to submit to random drug testing is
unconstitutional.” (emphasis added). Because she is challenging the agency’s
actions rather than a statute, she cannot rely on the waiver contained in the UDJA.
See id.
Nor can the mother rely on the ultra vires exception to sovereign immunity.
Under the ultra vires exception, suits that seek to “require state officials to comply
with statutory or constitutional provisions are not prohibited by sovereign
immunity.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
However, as the supreme court clarified in City of El Paso v. Heinrich, the proper
party in an ultra vires claim is the state actor in his or her official capacity, even
though for all practical purposes, the suit is against the state. Id. at 373. “[A]s a
technical matter, the governmental entities themselves—as opposed to their
officers in their official capacity—remain immune from suit.” Id. at 372–73.
16
The trial court’s order granting TDFPS’s plea to the jurisdiction does not
address any parties who fit within this exception. TDFPS is an agency, and thus
remains immune from ultra vires claims under Heinrich. Id. Although the mother
purported to add two TDFPS caseworkers as defendants in her “First Amended
Counterclaim,” the trial court severed only the mother’s counterclaim against
TDFPS, which made its order granting TDFPS’s plea to the jurisdiction final.
Accordingly, any counterclaims by the mother against other parties are not before
us.
Furthermore, even considering the “First Amended Counterclaim” as a
proposed amendment to cure jurisdictional defects, see Ranjel, 407 S.W.3d at 886,
the ability to amend to cure such defects on remand does not extend to suing new
parties. Compare id. at 893 (“Generally, an appellate court allows a litigant to
amend his pleadings to cure defects when the pleadings do not allege sufficient
jurisdictional facts but do not affirmatively negate jurisdiction.” (emphasis added)).
Remand is only called for where the pleadings do not affirmatively negate
jurisdiction. Id. at 892. Here, the pleadings affirmatively negated jurisdiction
because the only named defendant was immune.
Although the supreme court has previously remanded to allow a plaintiff to
add state actors, the remand was “in light of its clarifications” in Heinrich. See
Sefzik, 355 S.W.3d at 623 (citing Tex. Parks and Wildlife Dep’t v. Sawyer Trust,
354 S.W.384, 394 (Tex. 2011)). In doing so, the court noted that the case was filed
prior to Heinrich, when its case law was “less than clear” regarding the proper
defendant in an ultra vires suit. Sefzik, 355 S.W.3d at 623.
Here, because the mother filed her original counterclaim in 2012, nearly
three full years after Heinrich was decided, remand is not warranted. See Boll v.
Cameron Appraisal Dist., No. 13-11-00750, 2013 WL 4187756, at *2 (Tex.
17
App.—Corpus Christi, Aug. 15, 2013). The law was sufficiently clear for the
mother to be required to name the proper party. We therefore affirm the grant of
TDFPS’s plea to the jurisdiction as to the mother’s Fourth Amendment challenge.
V. The mother’s First Amendment challenge to the Family Code is barred
by the law-of-the-case doctrine.
Finally, the mother argues on appeal that section 153.371 of the Family
Code violates the First Amendment by giving a nonparent managing conservator
the right to direct the moral and religious training of her children. It is not clear
that the trial court considered this declaratory judgment claim, however. The
mother included this claim for the first time in her First Amended Counterclaim,
which was not filed until after the trial court’s order granting the plea to the
jurisdiction. Her original petition did not request declaratory relief regarding any
First Amendment violation, but merely noted a different First Amendment issue
regarding the “adverse effect on [her] First Amendment right of association with
her children” if CPS were appointed managing conservator.
In any event, a remand for the trial court to consider the mother’s First
Amendment claim properly would be futile because we have rejected it in a related
mandamus proceeding. Under the law-of-the-case doctrine, decisions rendered in
former appeals are generally binding in a later appeal of the same case. Paradigm
Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012). Although
denial of a mandamus petition “does not necessarily establish law of the case,”
denials containing a comment on the merits may be treated as binding in a
subsequent appeal. In re L.R., 416 S.W.3d 675, 677 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (citing Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex.
2007)).
18
This Court has already commented on the merits of the mother’s challenge
to section 153.371 of the Family Code. See In re Solley, 2012 WL 3135549, at *1.
In denying the mother’s petition for writ of mandamus, we rejected her challenge
to the trial court’s order giving TDFPS the right to direct the moral and religious
training of the children, pointing out that the mother was granted the “‘right to
direct the moral and religious training of the child[ren]’ during her periods of
possession of the child[ren].” See id. Accordingly, the mother’s First Amendment
complaint is barred by the law-of-the-case doctrine. See In re L.R., 416 S.W.3d at
677.
CONCLUSION
Having concluded that the trial court did not err in granting TDFPS’s plea to
the jurisdiction on each of the claims before it, we overrule the mother’s sole issue
and affirm the trial court’s judgment granting the plea and dismissing the mother’s
claims.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, McCally, and Busby.
19
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896 F.2d 339
MT. ADAMS VENEER CO.; Publishers Forest Products Co. ofWashington; and Puget Sound Plywood, Inc.,Plaintiffs-Appellants,v.UNITED STATES of America; Richard E. Lyng; F. DaleRobertson; and James F. Torrence, Esq.,Defendants-Appellees.
No. 87-4442.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 29, 1989.Memorandum Nov. 15, 1989.Order and Opinion Feb. 13, 1990.
James H. Clarke, Spears, Lubersky, Bledsoe, Anderson, Young and Hilliard, Portland, Or., for plaintiffs-appellants.
William B. Lazarus, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before FERGUSON, BRUNETTI and O'SCANNLAIN, Circuit Judges.
BRUNETTI, Circuit Judge:
FACTS
1
Appellant, Mt. Adams Veneer Company (Mt. Adams), is a joint venture partnership organized under the laws of the State of Washington. It is owned, in equal 50 percent shares, by the other two appellants, Publishers Forest Products Company of Washington (Publishers) and Puget Sound Plywood, Inc. (Puget Sound), both Washington corporations. Each of the three appellants submitted applications to the Forest Service for contract buy-out under the Federal Timber Contract Payment Modification Act, 16 U.S.C. Sec. 618 et seq. (the Act). Publishers sought the buy-out of timber sales contracts which it held and under which it was committed to purchase 182,073 MBF (thousand board feet) of timber. Puget Sound sought the buy-out of timber sales contracts which it held and under which it was committed to purchase 36,745 MBF of timber. Both of these applications were approved.
2
Mt. Adams sought the buy-out of timber sales contracts which it held and under which it was committed to purchase 55,000 MBF of timber.1 Mt. Adams' application was denied by the Regional Forester on the grounds that it was an affiliate of Publishers and Puget Sound, and that Publishers and Puget Sound had each fully utilized its statutory buy-out entitlements.
3
In its decision dated July 21, 1986, the Chief of Forest Service affirmed the decision of the Regional Forester and this became the final decision of the Secretary. On February 3, 1987, Mt. Adams, Publishers, and Puget Sound filed an action in the district court alleging that the Secretary's denial of Mt. Adams' buy-out application was not in accord with the Act. The district court, ruling on cross-motions for summary judgment, granted the Secretary's motion for summary judgment and Mt. Adams, Puget Sound and Publishers appeal.
4
The Regional Forester rejected Mt. Adams's buy-out application because "Puget Sound Plywood and Publishers Forest Products Co. are affiliates of the joint venture [Mt. Adams] ... The volume entitlement of the joint venture is the total of all affiliates, in this case 200 million board feet. Publishers has applied to buy out 199,858 MBF and Puget Sound 36,745 MBF, totaling 235,603 MBF. This leaves [Mt. Adams] with no remaining entitlement volume." Mt. Adams appealed the Regional Forester's decision to reject its buy-out application to the Chief Forester. The Chief Forester granted Mt. Adams an oral presentation which was conducted on May 8, 1986. Relying on 13 C.F.R. Sec. 121.3(a)(vii)(A),2 the Chief Forester concluded that Mt. Adams does not meet the definition of a joint venture because it "has been in operation for at least 11 years and conducts business generally." In accordance with the SBA affiliation regulation, 13 C.F.R. Sec. 121.3(a)(i),3 the Chief Forester also concluded that Mt. Adams is an affiliate of Publishers and Puget Sound. According to the Chief Forester, "Publishers and Puget Sound are each a 50 percent partner in Mt. Adams and make decisions by consensus." The Chief Forester concluded that "on the basis of the negative power to control a 50 percent owner (whereby one 50 percent owner can block actions of the other 50 percent owner), Mt. Adams is an affiliate of Publishers and an affiliate of Puget." In affirming the Regional Forester, the Chief Forester ruled that the volume entitlement for buy-out purposes under the Act for Mt. Adams is the total of the concern and its affiliates--292,403 MBF.
5
The district court, adopting the Secretary's legal reasoning, concluded that Publishers and Puget Sound were affiliates of Mt. Adams by reason of their independent negative control over the management of Mt. Adams and granted the Secretary's motion for summary judgment. The district court refused to issue an injunction mandating the Forest Service to reopen and redetermine Puget Sound's and Publishers' buy-out entitlements. Instead, the district court held that reopening the previously approved buy-out applications of Puget Sound and Publishers "presents substantial questions of policy and procedure which the Forest Service is better equipped to handle than this court." Publishers and Puget Sound "should therefore apply to the Forest Service for a redetermination of their buy out eligibilities."
DISCUSSION
6
* The grant or denial of a summary judgment is a question of law reviewable de novo. Cook Inlet Native Ass'n v. Bowen, 810 F.2d 1471, 1473 (9th Cir.1987). This court accords substantial deference to an agency's interpretation of a statute it is charged with administering. National Resources Defense Council v. Hodel, 819 F.2d 927, 929 (9th Cir.1987).
The Act provides that
7
the Secretary of Agriculture [is] authorized and directed to permit a requesting purchaser to return to the government a volume of the purchaser's timber contracts as determined under paragraph (2) upon payment of a buy out charge from such purchaser in an amount as determined under paragraph (3). The purchaser shall be released from further obligation to cut, remove, and pay for timber under such contract upon payment ... of such buy out charge.
8
16 U.S.C. Sec. 618(a)(1) (1985).
9
Paragraph 2(B) of the Act, which pertains to the volume of timber contracts which may be bought out under the Act by a single purchaser, provides that
10
[a] purchaser holding more than twenty-seven million three hundred thousand board feet of net merchantable saw timber as of January 1, 1982, in qualifying contracts ... shall be entitled to buy out up to 55 percentum of such timber volume up to a maximum of two hundred million board feet.
11
16 U.S.C. Sec. 618(a)(2)(B).
12
The Act defines a purchaser as "the holder of a contract to purchase timber from the Secretary of Agriculture." Id. Sec. 618(a)(7)(C). The Act further provides that "[f]or purposes only of determining a purchaser's buy-out limitations ... concerns which are affiliates ... shall be treated as a single entity." Id. Sec. 618(a)(7)(A).
13
Concerns are affiliates of each other when either directly or indirectly, one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both. In determining whether or not affiliation exists, consideration shall be given to all appropriate factors, including, but not limited to, common ownership, control management, and contractual relationships.
14
16 U.S.C. Sec. 618(a)(7)(B).
15
The parties differ in their interpretation of the word "control" within the definition of affiliate. The Secretary maintains that since Mt. Adams is owned in equal shares by Publishers and Puget Sound, Mt. Adams is controlled by both entities. The Secretary relies on the Senate Report which states that the definition of the term "affiliates" was adopted from the definition used by the Small Business Administration (SBA) and indicates the SBA regulations should be used as a guide in determining affiliation. S.Rep. No. 98-596, 98th Cong., 2d Sess. 12, reprinted in 1984 U.S.Code Cong. & Admin.News 3796, 3805.
16
The SBA definition of affiliation is "[e]very business concern is considered as having one or more parties who directly or indirectly control or have the power to control it. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists." 13 C.F.R. Sec. 121.3(a)(i) (1987) (emphasis added). Using the guidelines set forth in the SBA regulations, the Secretary concluded that Publishers and Puget Sound are affiliates of Mt. Adams by reason of their independent negative control over the management of Mt. Adams.
17
The appellants contend that the Secretary improperly applied the concept of negative control in reaching its conclusion that Puget Sound and Publishers are affiliates of Mt. Adams. According to the appellants, it is impossible for either of two equal owners to control Mt. Adams as neither owner can conduct the business of the joint venture without the other's consent. The appellants contend that reliance on the SBA rule of negative control is misplaced because it is contrary to the plain meaning of the term as used in the statute and because the Senate Report is not a reliable indicator of congressional intent. Finally, the appellants contend that even if the SBA rule is applicable here, the Secretary has erred in applying the rule to a partnership. We reject these arguments.
18
"Where review involves an agency's construction of the statute it administers, the court must first give effect to the unambiguously expressed intent of Congress. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842 [104 S.Ct. 2778, 2781, 81 L.Ed.2d 694] (1984). If the statute is silent or ambiguous with respect to the specific issue, then the court is limited to considering whether the agency's interpretation is based on a permissible construction of the statute. Id. at 843 [104 S.Ct. at 2781]." Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1105 (9th Cir.1989).
19
According to the Act, "concerns are affiliates of each other when either directly or indirectly, one concern controls or has the power to control the other." 16 U.S.C. Sec. 618(a)(7)(A). The term "control" is susceptible to more than one meaning; therefore, the face of the Act is ambiguous and we should defer to the Secretary's interpretation of the Act if it is based on a permissible construction of the statute. Based on the Senate Reports, we believe the Secretary's interpretation is permissible.
20
Finally, contrary to appellant's contention the SBA regulation is applicable to all business entities, including partnerships. See 13 C.F.R. Secs. 121.3(a)(i) and 121.3(b). Accordingly, the district court correctly affirmed the Secretary's interpretation of the term affiliate as including the concept of negative control.
II
21
The Secretary determined the buy-out eligibility of Mt. Adams by considering all three entities:
Publishers 199,858 MBF
Puget Sound 36,745 MBF
Mt. Adams 55,800 MBF
292,403 MBF
Since the statutory limit of 200,000 MBF was exceeded, the Secretary denied the application of Mt. Adams for a contract buy-out. See 16 U.S.C. Sec. 618(a)(2)(D). The Secretary concedes that each entity created by the affiliation decision--Publishers/Mt. Adams and Puget Sound/Mt. Adams--is entitled to include Mt. Adams' contracts in its buy-out entitlement. This would result in additional buy-out relief for the entity and/or permit the entity to choose to have the most economically advantageous contracts bought out (that is, the higher priced contracts). Puget Sound's and Publishers' buy-out applications, however, have already been approved and processed. All the contracts returned by Puget Sound and Publishers have been closed; each company has signed contract closure agreements waiving their claims against the government, and the government has released each company from all obligations under their respective contracts. 36 C.F.R. Sec. 223.178. The Forest Service has resold the timber from several of the returned contracts. Nonetheless, Puget Sound and Publishers seek equitable relief that would compel the Forest Service to permit them to amend their buy-out applications to include Mt. Adams' contracts in their buy-out program.
Where, as here, injunctive relief and a declaratory judgment are sought with regard to an administrative determination, the "courts traditionally have been reluctant" to grant such relief unless there is a "controversy 'ripe' for judicial resolution." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (Abbott) (the "basic rationale" for the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties"). Under the ripeness doctrine, an agency must have taken "final" action before judicial review is appropriate. 5 U.S.C. Sec. 704; Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982) (Friedman ).
"It is the imposition of an obligation or the fixing of a legal relationship that is the indicium of finality of the administrative process." Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir.1979). Indicia of finality include: the administrative action challenged should be a definitive statement of an agency's position; the action should have a direct and immediate effect on the day-to-day business of the complaining parties; the action should have the status of law; immediate compliance with the terms should be expected; and the question should be a legal one. FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980) (Standard Oil ) (citations omitted).
In this case, the Secretary only concluded that "the volume entitlement of Mt. Adams and its affiliates has been applied for and granted by the Regional Forester." The Secretary never addressed the question of whether Puget Sound and Publishers were prohibited from amending their previously approved buy-out applications. In fact, Puget Sound and Publishers were not parties to Mt. Adams' administrative appeal.
Based on the Secretary's position in this appeal, Puget Sound and Publishers contend that the Forest Service will not permit them to amend their applications.4 "Agency advocacy in a judicial proceeding is obviously not such agency action as would be subject to judicial review under the Administrative Procedure Act.... Judicial review of administrative action under the Administrative Procedure Act is limited to orders of definitive character dealing with the merits of proceedings before an administrative agency." Phillips for and on Behalf of N.L.R.B. v. United Workers of America, Dist. 19, 218 F.Supp. 103, 107 (D.C.Tenn.1963). Until the Forest Service acts, the agency's action is speculative at best.
Since the agency has not acted and there is no effect on the day-to-day business of the appellants, there is no final agency action subject to judicial review. 5 U.S.C. Sec. 704. Accordingly, a challenge to the agency's possible decision to prohibit amendments to previously approved buy-out applications is premature, and as such, is not ripe for judicial review. See Standard Oil, 449 U.S. at 239-45, 101 S.Ct. at 493-95.
AFFIRMED.
O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from Part II of the majority's disposition which affirms the district court's denial of injunctive relief to Puget Sound Plywood, Inc. ("Puget Sound") and Publishers Forest Products Company of Washington ("Publishers"). Puget Sound and Publishers sought injunctive relief to compel the Forest Service to permit them to amend their buy-out applications in order to include certain Mt. Adams Veneer Company's ("Mt. Adams") contracts in their respective applications.
The majority properly determines that Puget Sound and Mt. Adams are affiliates and that Publishers and Mt. Adams are affiliates. But somehow it fails to recognize the necessary implication of these conclusions: as affiliates of Mt. Adams, Puget Sound and Publishers are each entitled to include portions of Mt. Adams' contracts in their separate buy-out applications. Instead, the majority insists that Puget Sound and Publishers be relegated back to the Forest Service to start a new, and in my view needless, process seeking leave to amend their original filings. Even footnote 4 of the majority's disposition acknowledges that such process is likely to be a useless act, and counsel for the Forest Service said as much during oral argument. The majority simply prescribes an exercise in futility. The majority improperly and illogically divorces the findings on the merits from the determination of whether Puget Sound and Publishers may amend their applications in light of such findings. The Federal Timber Contract Payment Modification Act clearly provides that, for the purpose of determining a purchaser's buy-out limitation, affiliates "shall be treated as a single entity." 16 U.S.C. Sec. 618(a)(7)(A). Obviously this means that an entity consisting of two affiliates is allowed only one buy-out entitlement rather than two and that such an entity may elect to buy out the most economically advantageous contracts held by either affiliate. Puget Sound/Mt. Adams and Publishers/Mt. Adams must therefore be treated as single entities; having been deemed affiliates of Mt. Adams, Puget Sound and Publishers are each necessarily entitled to include selected Mt. Adams' contracts in their buy-out applications.
The district court has the power to order equitable relief. See Sierra Pacific v. Lyng, 866 F.2d 1099, 1112 (9th Cir.1989) ("We find nothing in the statute to indicate that Congress intended to divest the [district] courts of their inherent equitable powers"). I believe the district court improperly failed to exercise its equitable powers by not requiring the Forest Service to permit Puget Sound and Publishers to amend their buy-out applications as a consequence of its ruling on the merits.
I would therefore remand to district court with instructions to grant such equitable relief.
1
In 1978, Mt. Adams entered into a contract with the United States, designated the Siler 6 Contract, No. 06766-1, for the purchase of 19,500 MBF of timber. In 1979, Mt. Adams entered into a contract with the United States, designated the Lynx Contract, No. 06785-1, for the purchase of 37,500 MBF of standing timber from federal lands
2
13 CFR Sec. 121.3(a)(vii)(A) provides in part:
A joint venture for size determination purposes is an association of persons and/or concerns with interests in any degree or proportion by way of contract, express or implied, consorting to engage in and carry out a single specific business venture for joint profit for which purpose they combine their efforts, property, money, skill, or knowledge, but not on a continuing or permanent basis for conducting business generally. A joint venture is viewed as a business entity in determining power to control its management.
3
13 CFR Sec. 121.3(a)(i) provides:
Every business concern is considered as having one or more parties who directly or indirectly control or have the power to control it. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists.
Example. A party owning 50 percent of the voting stock of a concern would have negative power to control such concern since he can block any action of the other stockholders. Also, the bylaws of a corporation may permit a stockholder with less than 50 percent of the voting stock to block any actions taken by the other stockholders. Affiliation exists when one or more parties have the power to control a concern while at the same time another party or other parties, may be in control of the concern at the will of the party with the power to control.
4
According to the Secretary, Puget Sound and Publishers could have joined the administrative appeal by Mt. Adams of the Regional Forester's rejection of its application, and sought a stay of further action with respect to their own buy-out applications pending final judicial determination of the Regional Forester's decision on Mt. Adams' application. Since the appellants failed to do this, the Secretary contends that any further administrative review is foreclosed
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66 F.3d 346
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.John L. HAMMONS, Petitioner,v.DEPARTMENT OF the AIR FORCE, Respondent.
No. 95-3725.
United States Court of Appeals, Federal Circuit.
Sept. 8, 1995.
ORDER
1
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
2
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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56 F.3d 817
Willie D. WHITE, Jr., Plaintiff-Appellant,v.Rick OLIG, James M. Gilmore, and Fond du Lac County, amunicipal corporation, Defendants-Appellees.
No. 94-3840.
United States Court of Appeals,Seventh Circuit.
Argued April 10, 1995.Decided June 6, 1995.
1
Ronald Bornstein, Milwaukee, WI (argued), for plaintiff-appellant.
2
Thomas P. Stilp, Stilp, Cotton & Wells, Milwaukee, WI (argued), for defendants-appellees.
3
Before MANION and ROVNER, Circuit Judges, and WILL, District Judge.*
4
WILL, District Judge.
5
Plaintiff was mistakenly arrested and detained in jail for three days pursuant to a civil body attachment order issued against a different individual with the same name. Subsequent to his release he brought suit against the arresting officer and the county sheriff under 42 U.S.C. Sec. 1983 alleging violations of his Fourth Amendment rights. The district court granted summary judgment in favor of defendants and plaintiff now appeals. For the reasons discussed below, we affirm the grant of summary judgment, but do so on other grounds.
BACKGROUND
6
During the early morning of April 27, 1991, Willie D. White and a friend were travelling through Fond du Lac County Wisconsin on their way to a weekend fishing trip. Apparently lost on a rural road, they were stopped for speeding by a local deputy sheriff, Rick Olig, who was on routine patrol. While issuing a summons to the driver, Deputy Olig noticed that White, who was in the front passenger seat at the time, was not wearing his seat belt. Intending to issue him a citation under Wisconsin's mandatory seat belt law, Olig asked White for identification, to which White responded with his name and date of birth, February 10, 1960.
7
Olig returned to his patrol car and proceeded to conduct a "wants, warrants and drivers status check" on White. This search, which was performed through the sheriff station and the Crime Bureau Teletype system, revealed an outstanding civil body attachment order for nonsupport from Racine County against a "Willie White,"--later revealed to be a different person with the same name--described as a six foot tall black male, weighing 180 pounds, born on February 10, 1960. After receiving this apparent match, Olig asked his communications officer to verify the status of the attachment order, which was done by teletype directly with Racine County. In response, Olig was informed that there was a valid arrest warrant for nonsupport against a "Willie White," date of birth February 10, 1960. Due to some confusion, however, the teletyped confirmation described the intended subject as a white male.
8
With this information, Olig approached White, a five foot seven, 175 pound black male from Racine County, and asked him if he was aware that there was a body attachment order for nonsupport outstanding against him. In response, presumably confused due to a prior and unrelated support matter, White stated only that he thought that the matter had been cleared up. Deputy Olig, now convinced that he had located the correct person, arrested White and took him to the Fond du Lac County jail where he was held until being transported to Racine County on April 29. While in jail in Fond du Lac County, White was shown a copy of the teletype from Racine County confirming that they had a warrant for the arrest of "Willie White," and at some point it was also clarified that the warrant was for a black, rather than a white, male. Unfortunately, no other efforts were made to insure that White was the person sought in the warrant.
9
The actual body attachment order, which was apparently never seen by officers in Fond du Lac County or shown to White, was for a black male, date of birth unknown, approximately 40 years old, six feet tall and 180 pounds. It is not known how or why the information in the Crime Bureau Teletype system, or the information teletyped directly from Racine County, contained incorrect information about the Mr. White for whom the warrant was intended, including, strangely enough, a matching date of birth. We can only surmise that some unfortunate clerical mistake caused the records of White's prior support proceedings to be commingled with the attachment order. On April 30, however, the day after being transferred to Racine County, and after over three days in jail, White finally appeared in front of a county judge where the error was discovered and he was released.
10
In response to his erroneous confinement, White filed a two count complaint against Deputy Olig and Sheriff Gilmore alleging that he had been wrongfully arrested and detained. Count I was brought under 42 U.S.C. Sec. 1983 and, liberally construed, asserted that White's Fourth Amendment rights had been violated because: (1) the warrant was facially invalid; (2) his arrest and detention were unreasonable; and (3) he was never provided with a copy of the body attachment order in violation of Wisconsin Statutes Sec. 818.07. Count II, again liberally construed, added Fond du Lac County as a defendant and re-alleged the same complaints under a theory of state law negligence.
11
Upon defendants' motion for summary judgment, the district court concluded that the arrest warrant was facially valid under the Fourth Amendment, and that Deputy Olig and Sheriff Gilmore had acted reasonably, had not violated Wis.Stat. Sec. 818.07 or any other clearly established rights, and were entitled to qualified immunity. Summary judgment was therefore granted against plaintiff on his Section 1983 claims and the state law count was dismissed without prejudice. We now review de novo.
DISCUSSION
12
White seeks redress for his three day ordeal under 42 U.S.C. Sec. 1983, alleging that his arrest and incarceration violated the Fourth Amendment. While we sympathize with his case and mistaken confinement, we find Section 1983 inapplicable to the uncontested facts.
13
We begin with the body attachment order under which White was arrested, and note that the Fourth Amendment, which is applied to the states through the Fourteenth Amendment, has not been interpreted to impose stringent requirements on how warrants must describe their intended subjects. In general, an arrest warrant that correctly names the person to be arrested is considered constitutionally sufficient and need not contain any additional identifying information. Powe v. City of Chicago, 664 F.2d 639, 645 (7th Cir.1981); West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643 (1894). Therefore, as the district court had little trouble concluding, the body attachment order for Willie White, despite its lack of detail, was facially valid under the Fourth Amendment.
14
On appeal, White abandons his claim that the attachment order was too vague, and argues instead, for the first time, that the warrant was invalid because it failed to include a bail provision as allegedly required by Wisconsin statute. Wis.Stat. Sec. 818.06. Regardless of the obvious waiver of this claim, we fail to see how the mandates of Wisconsin state law alter the constitutional validity of the attachment order or implicate Section 1983. It is well known that Section 1983 imposes liability only for violations of rights protected by the Constitution and laws of the United States. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). It is therefore a truism, reiterated many times by this court, that mere allegations of state law infraction are insufficient to support a Section 1983 claim. Doe v. Burnham, 6 F.3d 476, 480 (7th Cir.1993); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1349 (7th Cir.1985).
15
Next, White complains that regardless of the contents of the body attachment order, Deputy Olig is liable under Section 1983 because he arrested and detained the wrong Willie White. The arrest of a person named in a valid warrant, however, even if it turns out to be the wrong individual, will not violate the Fourth Amendment unless the arresting officer acted unreasonably. Brown v. Patterson, 823 F.2d 167, 168-69 (7th Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 117 (1987); Hill v. California, 401 U.S. 797, 803-05, 91 S.Ct. 1106, 1110-11, 28 L.Ed.2d 484 (1971).
16
As counsel practically acknowledged at oral argument, there can be little debate about the reasonableness of White's initial arrest. The information provided to Deputy Olig indicated that there was a warrant for the arrest of "Willie White," a black male from Racine County, height six feet, weight 180 pounds, date of birth February 10, 1960. It would have been imprudent for Olig not to have arrested White, who besides having the same name, race, county of residence, birth date and approximate weight, also indicated that he apparently knew what the attachment order was about.
17
White reminds us that, after his acknowledgment of the possibility of an attachment order, he did protest to Deputy Olig that there might be some mistake and that he should check the names of the children involved. Under the circumstances, however, we find that Olig was entitled to give greater weight to White's spontaneous acknowledgment than to what might have reasonably appeared to an arresting officer to be a subsequent and meditated attempt at release. It is certainly not uncommon for the subjects of arrest warrants to object, even vociferously, when they are apprehended. Moreover, as this circuit has recognized in the past, "the peril of liability under section 1983" should not be placed upon arresting officers every time they are faced with the practical dilemma of arresting or releasing an individual who, despite some discrepancies in description, they reasonably believe to be the intended subject of an arrest warrant. Johnson v. Miller, 680 F.2d 39, 41 (7th Cir.1982); Patton v. Przybylski, 822 F.2d 697, 699 (7th Cir.1987).
18
White persists that, even if his arrest was legitimate under the Fourth Amendment, his subsequent detention was not. Specifically, he claims that both Deputy Olig and Sheriff Gilmore failed to provide him with a copy of the actual body attachment order as allegedly required by Wisconsin Statutes Sec. 818.07,1 and that they otherwise acted unreasonably in not ascertaining that they were holding the wrong Willie White. As previously explained, however, violations of Wisconsin state statutes are irrelevant to a Section 1983 inquiry, and plaintiff is misguided to rely upon them. See Kraushaar v. Flanigan, 45 F.3d 1040, 1047-48 (7th Cir.1995). Moreover, although an obvious mistake was made, the conduct of Olig and Gilmore, including their failure to provide White with a copy of the attachment order, was not unreasonable and did not violate the Constitution.
19
In reaching this conclusion, we recognize that state statutes sometimes create liberty interests that may in turn implicate the Fourteenth Amendment if they are deprived without procedural due process. See Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). However, even when such a liberty interest is created, and none is argued here, federal constitutional law continues to define the procedural protections that attach. Colon v. Schneider, 899 F.2d 660, 670 (7th Cir.1990). Therefore, failure to follow procedures mandated by state but not federal law, such as those White argues are required under Wis.Stat. Sec. 818.07, can establish only a state law violation. Kraushaar, 45 F.3d at 1048-49; Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir.1994).
20
Despite the district court's analysis, therefore, we need not interpret Wisconsin law to conclude that whatever errors under state law Olig and Gilmore may have made, they were not of federal constitutional magnitude and are not remediable under Section 1983. What Wisconsin law requires, and whether those requirements were followed, should not be decided here. "State rather than federal courts are the appropriate institutions to enforce state rules." Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). Such restraint is particularly appropriate in this case because the state statute at issue has apparently not yet been interpreted by the Wisconsin courts. Accordingly, we do not affirm the district court's analysis of Wis.Stat. Sec. 818.07 or its finding that Olig and Gilmore are entitled to immunity. Those issues are superfluous to the resolution of White's Section 1983 claims, and in this case are properly reserved, if there presented, for the Wisconsin state courts to resolve.2
21
Finally, we caution that our ruling does not mean that we condone the treatment that White received or believe that police officers should be able to make such mistakes with impunity. Any law abiding citizen would rightfully be disturbed to learn that he or she could be mistakenly arrested and held in jail for over three days before the mistake was discovered. While the events here do not give rise to an action under Section 1983, they may well be actionable under state law. In any event, every effort should be made to insure that they are not repeated.
CONCLUSION
22
For the above stated reasons, we affirm the grant of summary judgment in favor of defendants on the grounds that the undisputed facts do not sustain a Section 1983 action, but leave the interpretation of Wis.Stat. Sec. 818.07 as well as the issue of immunity for the Wisconsin courts to address.
*
The Honorable Hubert L. Will, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation
1
Wis.Stat. Sec. 818.07 provides, in relevant part: "Execution of Order of Arrest. The affidavit, bond and order of arrest shall be delivered to the sheriff who, upon arresting the defendant, shall deliver to him copies thereof...."
2
Because there is no violation of Section 1983, it is unnecessary to consider whether Olig and Gilmore are entitled to qualified immunity. See Kraushaar, 45 F.3d at 1049 n. 4 (citing Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1328 (7th Cir.1993) (Easterbrook, J., concurring))
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30995
_____________________
NEW ORLEANS TOWING ASSOCIATION, INC; DUCROS AUTOMOTIVE, INC;
D&G BODY SHOP INC; DON HINGLE’S BODY SHOP, INC; STEVENS BODY
& FENDER, INC
Plaintiffs - Appellees
v.
M J FOSTER, JR, Individually and in his official capacity as
Governor of the State of Louisiana; RICHARD P IEYOUB,
Individually and in his official capacity as Attorney
General of the State of Louisiana; W R WHITTINGTON, Colonel,
Individually and in his official capacity as Deputy
Secretary and Superintendent of the Department of Public
Safety and Corrections, Office of State Police
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
February 6, 2001
Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,*
District Judge.
KING, Chief Judge:**
*
District Judge of the Northern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
Defendants-Appellants appeal the district court’s judgment
denying their motion to dismiss Plaintiffs-Appellees’ state law
damage claims. The district court concluded that the Eleventh
Amendment did not shield Defendants-Appellants from the
Plaintiffs-Appellees’ claims for damages insofar as the suit was
against them in their individual capacities. For the following
reasons, we AFFIRM the district court’s judgment and REMAND for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 1999, Plaintiffs-Appellees the New Orleans
Towing Association, Inc.; Ducros Automotive, Inc.; D & G Body
Shop, Inc.; Don Hingle’s Body Shop, Inc.; and Stevens Body &
Fender, Inc. (collectively the “Plaintiffs”) sued Defendants-
Appellants M.J. Foster, Jr., Louisiana’s Governor; Richard
Ieyoub, Louisiana’s Attorney General; and W.R. Whittington,
Deputy Secretary and Superintendent of Louisiana’s Department of
Public Safety and Corrections (collectively the “Defendants”), in
both their official and individual capacities. The Plaintiffs,
companies in the towing business and an association of tow truck
operators, claim, inter alia, that by enforcing The Louisiana
Towing and Storage Act, LA. REV. STAT. ANN. §§ 32:1711-32:1750
(West 2000) (the “Act”), against the Plaintiffs’ businesses,
Defendants have violated and continue to violate the First
47.5.4.
2
Amendment, Commerce Clause, Due Process Clause, and Equal
Protection Clause of the U.S. Constitution and certain equivalent
sections of the Louisiana Constitution. More specifically, the
Plaintiffs allege that they and their members have been
unconstitutionally ticketed and fined by the Louisiana Department
of Public Safety and Corrections (the “Department”) for
violations of the Act. The Plaintiffs argue that the Act is
preempted by federal law, that the Act is unconstitutional, and
that the Defendants exceeded their statutory authority in fining
them. The Plaintiffs sought a declaratory judgment to this
effect, an injunction prohibiting the Defendants from enforcing
the Act, and money damages.
On May 28, 1999, the Defendants moved to dismiss the
Plaintiffs’ complaint, asserting that the Eleventh Amendment
barred the claims for injunctive, declaratory, and monetary
relief that were based upon Louisiana law. The district court
dismissed the suit as to the state law claims for declaratory and
injunctive relief, but allowed the state law claims for monetary
relief against the Defendants in their individual capacities to
continue. The district court concluded that the Eleventh
Amendment precluded claims for injunctive, declaratory, and
monetary relief against the Defendants in their official
capacities, to the extent that they were based on state law.
However, the district court found that “[t]he Eleventh Amendment
does not prevent the plaintiffs from seeking to recover against
3
the defendants personally” if the Plaintiffs are attempting to
recover “money damages directly from the [Defendants’] own
pockets.”
On appeal, the issue is simply the potential individual-
capacity liability of the Defendants for damages — liability
presumably based upon an unconstitutional pattern of fining the
Plaintiffs. At this stage of the proceedings, without any
factual development, we are only called upon to resolve the
narrow legal question whether the district court properly
declined to dismiss the Plaintiffs’ state law claims for damages
against the Defendants in their individual capacities. On the
bare complaint, we are even reluctant to pass judgment on what
appears to be a rather suspect damages action directed against
state officials. We make clear that we are intimating no
position on the merits of the allegations because there is no
evidence before us at this early stage in the proceedings.1
II. STANDARD OF REVIEW
The denial of a motion to dismiss, which raises a colorable
claim of immunity, is appealable under the collateral order
1
We note that in its August 25, 1999 order on the
Defendants’ motion to dismiss, the district court ordered that
the Plaintiffs file a Rule 7(a) reply tailored to the Defendants’
defense of qualified immunity. The Plaintiffs filed such a reply
on September 10, 1999. Because the issue of qualified immunity
was not raised on appeal, we leave it to the district court to
determine if the Plaintiffs’ Rule 7(a) reply pleads sufficient
facts to hold the state officials liable for damages.
4
exception to the finality requirement of 28 U.S.C. § 1291 (1993).
See Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993); see
also Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d
312, 313 (5th Cir. 1999). We review de novo a district court’s
denial of a Rule 12(b)(6) motion to dismiss on immunity grounds.
See Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 285 (5th Cir.),
cert. denied, 120 S. Ct. 2007 (2000); Malina, 994 F.2d at 1124.
A motion to dismiss under Rule 12(b)(6) “‘is viewed with
disfavor and is rarely granted.’” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Kaiser
Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050
(5th Cir. 1982)). The complaint must be liberally construed in
favor of the Plaintiffs, and all facts pleaded in the complaint
must be taken as true. See id.; see also Campbell v. Wells Fargo
Bank, 781 F.2d 440, 442 (5th Cir. 1986).
Finally, “[t]he issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims. Indeed it may appear on the face
of the pleadings that a recovery is very remote and unlikely but
that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800 (1982). Instead, “[t]he district court may not dismiss
a complaint under rule 12(b)(6) ‘unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
5
claim which would entitle him to relief.’” Collins, 224 F.3d at
498 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
III. SUITS AGAINST STATE OFFICIALS IN THEIR
INDIVIDUAL CAPACITIES ARE NOT BARRED BY THE ELEVENTH AMENDMENT
In deciding the narrow question whether the Plaintiffs may
bring an individual-capacity suit against the Defendants for
damages arising under state law, we first lay out the analytical
framework in which we address the Defendants’ Eleventh Amendment
arguments. We conclude, with no judgment as to the merits of the
underlying action, that the Defendants may be sued in their
individual capacities for damages.
A. Individual-Capacity Actions Versus
Official-Capacity Actions
The Supreme Court has interpreted the Eleventh Amendment to
provide that “‘an unconsenting State is immune from suits brought
in federal courts by her own citizens as well as by citizens of
another state.’” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) (quoting Employees v. Dep’t of Pub. Health &
Welfare, 411 U.S. 279, 280 (1973)). This immunity also extends
to state officials who are sued in their official capacities
because such a suit is actually one against the state itself.
See id. at 117.
We recognize that “[t]he performance of official duties
creates two potential liabilities, individual-capacity liability
6
for the person and official-capacity liability for the [state].”
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478,
484 (5th Cir. 2000). Suits brought against a state official in
his official capacity “generally represent only another way of
pleading an action against an entity of which an officer is an
agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (internal
quotations omitted) (quoting Kentucky v. Graham, 473 U.S. 159,
165 (1985)). “Personal-capacity suits, on the other hand, seek
to impose individual liability upon a government officer for
actions taken under color of state law.” Id. In the former case
of liability, the Supreme Court has held that the Eleventh
Amendment bars state law claims against state officials for
injunctive or monetary relief. See Pennhurst, 465 U.S. at 117.
However, it is well established in this circuit that a suit
against a state officer in his or her individual capacity for
money damages is not a suit against the state for purposes of
Eleventh Amendment immunity. See Wilson v. UT Health Ctr., 973
F.2d 1263, 1271 (5th Cir. 1992) (“Pennhurst and the Eleventh
Amendment do not deprive federal courts of jurisdiction over
state law claims against state officials strictly in their
individual capacities.”), cert. denied, 507 U.S. 1004 (1993);
Hays County Guardian v. Supple, 969 F.2d 111, 125 (5th Cir. 1992)
(“The Eleventh Amendment does not bar state-law actions against
state officials in their individual capacity.”), cert. denied,
506 U.S. 1087 (1993); Crane v. Texas, 759 F.2d 412, 428 n.17 (5th
7
Cir.) (“The Eleventh Amendment is obviously no bar to actions for
damages against officials sued in their individual
capacities[.]”), cert. denied, 474 U.S. 1020 (1985); see also
Hafer, 502 U.S. at 30-31.
When a suit is brought against only state officials,
questions arise regarding whether the suit is actually one
against the state. See Pennhurst, 465 U.S. at 101. In this
regard, the general rule is that “[t]he Eleventh Amendment bars a
suit against state officials when ‘the state is the real,
substantial party in interest.’” Id. (quoting Ford Motor Co. v.
Dep’t of Treasury, 323 U.S. 459, 464 (1945)); Ford Motor Co. v.
Dep’t of Treasury, 323 U.S. 459, 464 (1945) (“And when the action
is in essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is entitled
to invoke its sovereign immunity from suit even though individual
officials are nominal defendants.”). Whether a state is the real
party in interest depends upon the nature of the relief sought.
A suit in which relief is sought nominally against a state
official “‘is in fact against the sovereign if the decree would
operate against the latter.’” Pennhurst, 465 U.S. at 101
(quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963)); see also
Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is
that a suit is against the sovereign if the judgment sought would
expend itself on the public treasury or domain, or interfere with
the public administration, or if the effect of the judgment would
8
be to restrain the Government from acting, or to compel it to
act.” (internal quotations omitted)).
In the instant case, the Plaintiffs argue that the Eleventh
Amendment is no bar to their state law claims against the
Defendants because they are suing the Defendants in their
individual capacities. The Defendants contend, however, that
because the state law damage claims against them arise out of
their actions in “‘enforcing’ state law” and, thus, while they
were “carrying out” their official responsibilities, Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89 (1984),
dictates that they are protected by the Eleventh Amendment. As a
legal matter, without regard to the underlying merits of the
Plaintiffs’ damages action, we disagree with the Defendants’
conclusion.
Pennhurst was a suit brought by residents of the Pennhurst
State School and Hospital in which the residents sought both
injunctive and monetary relief from the state officials in their
official capacities for claimed violations of state and federal
law. The district court granted the residents injunctive relief,
which the court of appeals affirmed. The Supreme Court reversed.
Concluding that “[a] federal court’s grant of relief against
state officials on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority of federal
law,” Pennhurst, 465 U.S. at 106, the Supreme Court held that “a
federal suit against state officials on the basis of state law
9
contravenes the Eleventh Amendment when . . . the relief sought
and ordered has an impact directly on the State itself.” Id. at
117. Furthermore, the Court stated that “a claim that state
officials violated state law in carrying out their official
responsibilities is a claim against the State that is protected
by the Eleventh Amendment.” Id. at 121. Consequently, the
Supreme Court remanded the case to the court of appeals to
determine to what extent the district court relied on federal law
in determining the need for an injunction.
This court has held that “Pennhurst . . . [does] not deprive
federal courts of jurisdiction over state law claims against
state officials strictly in their individual capacities.”
Wilson, 973 F.2d at 1271. Seizing upon a portion of the above-
quoted language in Pennhurst, however, the Defendants contend
that the relevant inquiry in a case such as this is whether the
officials were alleged to have violated state law in “carrying
out their official responsibilities.” If so, the Defendants
maintain that they are protected from suit by the Eleventh
Amendment because, at the time of the alleged injury to the
Plaintiffs, they were enforcing state law.
Although not specifically addressed in this circuit, the
Defendants’ argument has been raised and rejected by the Supreme
Court and by other courts of appeals. See Hafer, 502 U.S. at 27-
28 (“The requirement of action under color of state law means
that Hafer may be liable for discharging respondents precisely
10
because of her authority as auditor general. We cannot accept
the novel proposition that this same official authority insulates
Hafer from suit.”). See also, e.g., Hardin v. Straub, 954 F.2d
1193, 1200 (6th Cir. 1992) (“Straub seems to construe this
holding as meaning that if his actions were taken as part of his
job, then they were taken in his official capacity and that
Eleventh Amendment immunity applies. . . . In light of Hafer,
Straub’s statement of law is incorrect.”). The Supreme Court
clarified in Hafer v. Melo that “the phrase ‘acting in their
official capacities’ is best understood as a reference to the
capacity in which the state officer is sued, not the capacity in
which the officer inflicts the alleged injury.” 502 U.S. at 26.
Therefore, we conclude that any confusion existing after
Pennhurst, as illustrated in Defendants’ argument, has been
resolved by the Hafer decision.2
2
We recognize that in Hughes v. Savell, a panel of this
court relied on Pennhurst to express that “a claim that state
officials violated state law in carrying out their official
responsibilities is a claim against the State.” 902 F.2d 376,
378 (5th Cir. 1990). The Defendants rely on Hughes to support
its argument that Pennhurst “requires an analysis of how the
state official acted when causing injury to the plaintiff.” We
conclude, however, that we must read this language in Hughes in
the context of the facts of that particular case.
In Hughes, a state prisoner sued a security officer and the
warden of the Louisiana State Penitentiary, alleging
constitutional violations under 42 U.S.C. § 1983 and also pendent
state law claims for negligence stemming from the officer’s
failure to protect the plaintiff from an attack by another
prisoner. The plaintiff argued to this court that he was suing
the officials in their individual capacities, although he had
failed to specify such in his original complaint. See id. at
378-79. The court recognized this argument, but appeared to
11
We are not inclined, however, to interpret Hafer’s language
to mean that by merely pleading a suit against state officials in
their individual capacities in the caption of the complaint, the
suit is automatically transformed into one against the state
officials personally. Indeed, “[t]he real interests served by
the Eleventh Amendment are not to be sacrificed to elementary
mechanics of captions and pleadings.” Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 270 (1997); see also Hafer, 502 U.S. at 27
conclude that it was irrelevant because “Louisiana law places the
onus on the state to protect one prisoner from attacks by another
prisoner” and because Louisiana case law “impute[s] the
employee’s negligence to the state for purposes of assigning
liability.” Id. at 379 (referencing Louisiana law that “‘the
state is . . . liable for its [prison] employee’s (sic) failure
to use reasonable care’” and that “‘the blame is not so much
personal as due to the undermanned and harassed conditions in
which these employees must perform their most important duties’”
(alterations in original) (quoting Breaux v. Louisiana, 326 So.
2d 481, 482, 484 (La. 1976))). The court also noted that it
could find “no Louisiana case which holds a prison guard
individually liable for such an attack.” Id.
The court found that because the officer was “serving in his
official capacity” when the incident occurred, “Louisiana tort
law places the duty to safeguard Hughes on the State of Louisiana
and designates Savell as Louisiana’s agent.” Id. Therefore,
the court concluded that the only avenue for Hughes to sue the
official was as an agent of the state, i.e., in the state
official’s official capacity. See id. As such, Pennhurst barred
suit on the plaintiff’s state law claims because the suit was
against the state official in his official capacity. See id.
Applying Hughes, the question in this case is whether under
Louisiana law, the liability of the Defendants will be imputed to
the state of Louisiana. See Reyes v. Sazan, 168 F.3d 158, 162
(5th Cir. 1999). We specifically asked the parties to be
prepared to address this question at oral argument. The
Defendants conceded that there is no Louisiana law imputing
liability on the state or that would prevent the state officials
from being sued in their individual capacities, and our research
failed to reveal any such law. Accordingly, Hughes does not
control our analysis.
12
(“[T]he distinction between official-capacity suits and personal-
capacity suits is more than ‘a mere pleading device.’”).
Instead, as we stated above, the relevant question in the state
law claim context is whether the relief sought operates against
the state. See Pennhurst, 465 U.S. at 101-02; see also Scheuer,
416 U.S. at 237.
B. The Current Suit
In the instant case, the district court denied the
Defendants’ motion to dismiss to the extent that the Plaintiffs
claimed damages against the Defendants in their individual
capacities. The district court properly limited the relief for
the alleged state law violations to monetary relief to be paid
from the Defendants’ own pockets. This relief does not operate
against the state. See Kentucky v. Graham, 473 U.S. 159, 167-68
(1985) (“A victory in a personal-capacity action is a victory
against the individual defendant, rather than against the entity
that employs him.”). Furthermore, we agree with the Defendants’
concession that the simple fact that Louisiana law provides for
indemnification of the state officials does not convert the suit
into one against the state. See Hudson v. City of New Orleans,
174 F.3d 677, 687 n.7 (5th Cir.) (“The Eleventh Amendment does
not come into play in personal capacity suits, and the existence
of an indemnification statute promising to pay judgments when an
officer is sued in his individual capacity does not extend the
Eleventh Amendment’s protections around the officer.” (citation
13
omitted)); cert. denied, 528 U.S. 1004 (1999); Flowers v. Phelps,
964 F.2d 400, 401 n.2 (5th Cir. 1992) (“The existence of a state
immunity statute does not render these individuals immune from
federal suit.”).
Considering the pleadings in the light most favorable to the
Plaintiffs, we conclude that the Plaintiffs have pleaded facts
demonstrating that they are seeking to impose individual and
personal liability on the named Defendants, although they have
yet to establish these claims by proof. Moreover, in their
motion to dismiss, the Defendants offer up the defense of
qualified immunity, a defense that is intended to protect the
Defendants from personal liability. See Hafer, 473 U.S. at 166-
67 (“When it comes to defenses to liability, an official in a
personal-capacity action may, depending on his position, be able
to assert personal immunity defenses, such as objectively
reasonable reliance on existing law. The only immunities that
can be claimed in an official-capacity action are forms of
sovereign immunity, . . . such as the Eleventh Amendment.”
(citations omitted)). We hold that, on this narrow question of
law, the district court did not err in refusing to grant the
Defendants’ motion to dismiss insofar as it related to the
Plaintiffs’ state law claims against the Defendants in their
individual capacities.
IV. CONCLUSION
14
For the foregoing reasons, we AFFIRM the judgment of the
district court and REMAND for further proceedings consistent with
this opinion.
15
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11487
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO LOPEZ, also known as Nestor,
also known as Ernesto Lnu,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CR-409-P-24
February 3, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jose A. Stewart has moved for leave to withdraw as court-
appointed counsel for Ernesto Lopez and filed the brief required by
Anders v. California, 386 U.S. 738, 744 (1967). Lopez has filed a
notice of appeal to challenge his sentence.
Lopez' brief in response states that his presentencing report
included convictions that are not his, and that his sentence was
determined on the basis of an incorrect criminal history category.
Lopez states that he informed Stewart of these inaccuracies before
sentencing, and that Stewart said he would ensure that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
convictions were not considered in deciding Lopez' sentence. Lopez
argues that he was denied effective assistance of counsel because
Stewart did nothing about the mistaken information in his
presentencing report.
An ineffective assistance of counsel claim will not be
considered on direct appeal when the issue was not raised in the
district court unless the record is well-developed, because
otherwise the court must speculate about the reasons for the
attorney's decisions. See United States v. Bounds, 943 F.2d 541,
544 (5th Cir. 1991)(requiring "substantial details about the
attorney's conduct"). Lopez's brief includes letters to Stewart
and the probation officer asserting that the presentencing report
lists convictions that are not his. These letters do not provide
the kind of record necessary to consider his claim on direct
appeal.1
Lopez claims that he was sentenced on the basis of false
information in his sentencing report. "[A] defendant may not be
sentenced on the basis of information which is materially untrue."
United States v. Brice, 565 F.2d 336, 337 (5th Cir. 1977).
However, he did not object to the presentencing report at his
sentencing hearing. When a defendant fails to object to the
district court's calculation of his criminal history category, his
appeal of the claim is reviewed for plain error. See United States
v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991). Plain error is clear
1
Lopez' claim would be more appropriately raised in a
proceeding under 28 U.S.C. § 2255.
2
and obvious error that affects a party's substantial rights. See
United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999).
Because Lopez offers nothing but his contention that the criminal
history on his presentencing report is not his, there is no clear
and obvious error.
Our independent review of the briefs and record discloses no
nonfrivolous issue for appeal. Accordingly, the motion to withdraw
is GRANTED and the APPEAL IS DISMISSED.
MOTION TO WITHDRAW GRANTED; APPEAL DISMISSED.
3
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30998
(Summary Calendar)
In Re: HARRY J. MOREL, St. Charles Parish
District Attorney; KURT SINS, St. Charles
Parish Assistant District Attorney,
Petitioners,
MURPHY MARTIN COMARDELLE,
Plaintiff-Respondent.
Consolidated with
Nos. 98-31001 and 98-31222
MURPHY MARTIN COMARDELLE,
Plaintiff-Appellee,
versus
POLLIS HERNANDEZ, also known as Pookie
Hernandez; ET AL.,
Defendants,
HARRY J. MOREL, St. Charles Parish District
Attorney; KURT SINS, St. Charles Parish
Assistant District Attorney,
Defendants-Appellants.
- - - - - - - - - -
Appeals from the United States District Court
for the Eastern District of Louisiana
(98-CV-679-I)
- - - - - - - - - -
July 25, 2000
Before POLITZ, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioners Harry J. Morel and Kurt Sins request rehearing of
our affirmance of the district court’s refusal to grant their
motion to dismiss, on the basis of absolute immunity, the claims
filed against them under 42 U.S.C. § 1983 in their official
capacities. As the claims brought against Morel and Sins have all
effectively been dismissed, we grant rehearing and reverse the
district court’s ruling only insofar as it failed to grant the
Defendant-Appellants’ motion to dismiss the claims brought against
them in their official capacities.1
Plaintiff-Appellee initially brought these claims against
Morel and Sins and against the St. Charles Parish District
Attorneys Office (“the DA’s office”). Shortly thereafter, by ex
parte motion, Plaintiff voluntarily dismissed inter alia all claims
against the DA’s office and that order was entered by the district
court. Several months later, Defendant-Appellants filed a motion
to dismiss the claims brought against them, asserting defenses of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
To decide this case, it is not necessary to address the
jurisdictional issue advanced by the prosecutors, of immunity
under the Eleventh Amendment. As all claims against Defendant-
Appellants have been dismissed, the question of Eleventh
Amendment immunity has been rendered moot.
2
absolute and qualified immunity as well as Eleventh Amendment
immunity. The district court granted that motion in part, on the
grounds of absolute prosecutorial immunity, dismissing all claims
brought against Morel and Sins in their individual capacities.
Holding that the plaintiff’s complaint also asserted claims against
Defendants-Appellants in their official capacity, the district
court refused to dismiss those claims.
“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official’s office.”2 The claims brought by Plaintiff-
Appellee against Morel and Sins in their official prosecutorial
capacities are thus claims against the DA’s office. When the court
granted Plaintiffs’ motion and entered an order dismissing their
claims against the DA’s office, the court effectively dismissed the
claims brought against Morel and Sins in their official
prosecutorial capacities. The district court therefore erred in
not formally dismissing the claims asserted against Defendants-
Appellants in their official capacities.
We grant the Defendants-Appellants’ motion for rehearing and
now affirm the district court to the extent it granted the
Defendants-Appellants’ motion to dismiss the claims brought against
them in their individual capacities on the grounds that those
claims are barred by absolute prosecutorial immunity; however, we
2
Will v. Michigan, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312
(1989).
3
reverse that order insofar as it failed to dismiss the claims
brought against the prosecutors in their official capacities and
remand to the district court to enter an order dismissing the
claims.3
MOTION FOR REHEARING GRANTED; DISTRICT COURT AFFIRMED IN PART,
REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.
3
Three other motions were filed in this matter. Defendant-
Appellants filed a motion to strike the exhibits attached to
plaintiff-appellee’s response to the petition for rehearing. The
Louisiana District Attorney Association filed a motion to file an
amicus brief on behalf of Morel and Sins. Finally, Plaintiff-
Appellee filed a motion for leave to file a response to the
amicus brief of the Louisiana District Attorney Association. The
motion to strike and the motion to file an amicus brief are
denied. Leave to file a response brief is denied as moot.
4
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143 Conn. 66 (1955)
SOPHIE RODIE
v.
NATIONAL SURETY CORPORATION
Supreme Court of Connecticut.
Argued November 2, 1955.
Decided December 13, 1955.
INGLIS, C. J., O'SULLIVAN, WYNNE, DALY and MELLITZ, JS.
Albert L. Coles, with whom, on the brief, was James J. O'Connell, for the appellant (plaintiff).
*67 Frederick L. Comley, for the appellee (defendant).
O'SULLIVAN, J.
On November 28, 1951, the plaintiff, after buying an Oldsmobile sedan, applied to John A. Greenwood, an insurance agent in Bridgeport, for liability insurance on the automobile under the Connecticut Assigned Risk Plan. Greenwood forwarded the application to the New York office of that organization, and there it was assigned to the defendant for coverage. Pursuant to its regular business practice, the defendant turned the application over to its employee, Mrs. Loraine Burbank, for rating and final processing. On December 4 or 5, the defendant mailed to the plaintiff at her home the letter which is recited in full in the footnote.[1] The plaintiff received and read it late in the afternoon of December 5. During the evening of that day, her seventeen-year-old son asked for and received permission from her to take the Oldsmobile to a *68 school basketball game. While he was driving to the game, he was involved in an automobile accident.
Within a few days after December 5, Greenwood received the policy which the defendant had issued to cover the Oldsmobile. By its terms, the policy became effective at 12:01 a.m. on December 6, 1951. It had been prepared in accordance with the regulations of the Connecticut Assigned Risk Plan. One of the regulations provided that the designated insurer, upon receipt of notice that an application has been assigned to it, "shall, within two working days ... [i]ssue a policy or binder if all information necessary for the [insurer] to fix the proper rate is contained in the application form, such policy to become effective 12:01 A.M. on the day following the second working day." The court found no fraud, actual or constructive, or any inequitable conduct on the part of the defendant in the process of issuing the policy. On March 5, 1952, Luigi Iannelli, the person who had been injured in the accident occurring on the preceding December 5, brought suit against Mrs. Rodie and her son to recover damages for the injuries sustained. Subsequently, Mrs. Rodie instituted the present action to obtain a decree reforming the defendant's policy so that its effective date would be December 5, 1951. She has abandoned all other claims for relief sought in her complaint.
*69 Our problem, then, is quite limited. We are not concerned with a situation where Mrs. Rodie might seek, let us say, by estoppel, to hold the defendant liable under the policy, as written, for any judgment which may be rendered against her in the action brought by Iannelli. The question presented by this appeal is whether the court was correct in refusing to order a reformation of the policy as issued. The answer is obviously in the affirmative. If, by reason of mutual mistake or by reason of a unilateral mistake which is coupled with fraud or inequitable conduct on the part of the other party, a written agreement does not express the true intent of the parties, the agreement may be reformed. Patalano v. Chabot, 139 Conn. 356, 359, 94 A.2d 15; Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 548, 72 A.2d 482; Home Owners' Loan Corporation v. Stevens, 120 Conn. 6, 10, 179 A. 330; Back v. Peoples National Fire Ins. Co., 97 Conn. 336, 340, 116 A. 603; 3 Pomeroy, Equity Jurisprudence (5th Ed.) p. 384. In the case at bar, there was neither mutual mistake nor a unilateral mistake by Mrs. Rodie which was coupled with fraud or inequitable conduct on the defendant's part. Under such circumstances, reformation was legally impossible, and the court was correct in refusing to grant that relief.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] "December 5, 1951
Mrs. Sophie Rodie
405 Woodside Avenue
Bridgeport, Connecticut
Dear Mrs. Rodie:
Policy No. -- AP 706150
Annual premium -- $125.20
Deposit paid -- 37.56
_______
Balance due -- $87.64
Balance must be
received prior to -- December 21, 1951
In accordance with the rules of the Automobile Assigned Risk Plan of your State, we have issued an automobile policy in your name meeting requirements for statutory limits for Bodily Injury and Property Damage liability.
Your deposit has been applied to the annual premium. The balance of premium due the company should be received in this office on or before the due date shown above.
If such premium is not received by that date, or if the risk is otherwise ineligible, we shall be obliged to cancel your policy. It is to your interest to pay the balance of premium promptly.
Very truly yours,
/S/ Loraine Burbank
LB/je
cc: Mr. John A. Greenwood
58 Horace Street
Bridgeport, Conn.
Connecticut Auto Assigned Risk Plan
107 William Street
New York, New York"
|
{
"pile_set_name": "FreeLaw"
}
|
726 F.Supp. 1159 (1989)
Shawn SEEVERS and Gloria Seevers, Plaintiffs,
v.
Franklin W. ARKENBERG, Defendant.
No. NA 87-15-C.
United States District Court, S.D. Indiana, New Albany Division.
December 6, 1989.
*1160 *1161 William E. Goering, II, Eckert, Alcorn, Goering & Colussi, Madison, Ind., for plaintiffs.
Tom G. Jones, Jones, Loveall, Johnson & Bailey, Franklin, Ind., James E. Bourne, Wyatt, Tarrant, Combs & Orbison, New Albany, Ind., for defendant.
ENTRY
BARKER, District Judge.
In The Trial, Franz Kafka depicts the plight of Joseph K., a young man entangled in the arcane and inscrutable webs of the law. Unable to navigate "the system"'s labrinthine ways on his own, Joseph K. implores the aid of a distinguished yet equally cryptic attorney. Instead of illuminating his client's situation, however, the attorney only compounds the darkness. Thus the legal system, which should mediate between an individual and society, itself became a vehicle of alienation used by the attorney against his own client.
The present case, though not as fantastic as Kafka's version, uncomfortably echoes the estrangement produced when attorneys manipulate the law to beguile laymen. Here the plaintiffs, Gloria and Shawn Seevers, believed defendant Arkenberg to be their champion and guide in the legal arena, until events revealed a startling metamorphosis: Arkenberg had not protected the plaintiffs because, unbeknownst to them, he represented an adverse interest. This situation, detailed below, gave rise to the present action.
The Seevers have charged Arkenberg with malpractice, deceit, fraud, breach of an equitable duty, and a civil rights violation. The defendant has moved for summary judgment on all of the charges except the civil rights claim, which he has moved to dismiss. Arkenberg's principal defenses are that collateral estoppel prevents the litigation of these issues because the plaintiffs litigated and lost them in state court, and that the claims are barred by the statute of limitations. For the reasons articulated below, the court GRANTS the motion to dismiss Count V, and GRANTS the defendant summary judgment on Count I, but DENIES summary judgment on Counts II-IV.
Background
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The purpose of Rule 56 is to "isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Goka v. Bobbitt, 862 F.2d 646, 650 (7th Cir.1988). If the nonmovant bears the burden of proof at trial on a dispositive issue, Rule 56 directs him to adduce specific facts demonstrating that the issue is genuinely in dispute:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Id. 477 U.S. at 322-23, 106 S.Ct. at 2552.
The burden thus placed upon the nonmovant is not unduly onerous, however, because "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). *1162 The facts in the present case, construed favorably for the Seevers, are as follows:
In January of 1983 Gloria and William Seevers consulted with attorney Arkenberg about an intended dissolution of their marriage. The Seevers wanted to handle the dissolution and disposition of property amicably, so they decided to engage a single attorney to do the legal work, rather than retaining separate counsel. Arkenberg seemed the natural choice for this common representation, because he had previously represented the Seevers in connection with their landfill business; he was their "family lawyer" and, like a country doctor, had been consulted to remedy all their legal ills. The defendant apparently agreed to the joint representation provided that no conflict of interests arose, while cautioning that conflict would necessitate separate representation.[1] Subsequent events show that in undertaking this double representation, Arkenberg had grabbed the tiger by the proverbial tail. The record reflects that the Seevers basically agreed upon how the property should be divided, and simply wanted Arkenberg to prepare papers giving legal effect to the agreement.[2] The Seevers consulted with Arkenberg several times, sometimes together and sometimes separately, concerning the preparation of what came to be styled the "Guaranty Agreement" (or "the Agreement"). At some point during this time the Seevers' son Shawn also became involved in the discussions.[3]
Consequent to these meetings Arkenberg drafted the Guaranty Agreement; this document references a "Property Settlement Agreement" ("PSA"), and grants Shawn Seevers a remainder interest in fee simple in the property described in the PSA. The Guaranty Agreement also provides that upon William Seevers' death, Shawn will pay Gloria either $300 per week or $20,000 total. This provision obviously contemplates that Shawn will have come into possession of the real estate detailed in the PSA. All three of the Seevers signed this document, but Arkenberg never filed it.
The referenced PSA effects a curious division of the Seevers' property. While Gloria received a used Cadillac and a player piano, William received title to over $1 million worth of real estate, which is described in Schedule "A". One reason that the property was split in this seemingly inequitable manner was that the landfill company constituted the bulk of the Seevers' assets, and they did not want to break it up. The business had been in the family for several generations, and it was intended that Shawn continue the business after William's death. More importantly, Gloria and Shawn believed the PSA would be read in conjunction with the Guaranty Agreement, and that the real estate would ultimately vest in Shawn, who in turn would look after his mother. Arkenberg, responding to a question from Shawn, opined that the Guaranty Agreement was a "good deal" for all concerned.
Two days before the dissolution hearing, Gloria spoke with Arkenberg and expressed trepidation at attending the hearing, because she feared William would be present. Arkenberg said he did not know if William would attend, and promised to meet Gloria outside the court house on the day of the hearing to tell her if William was there. William did not appear, and Arkenberg accompanied Gloria into court and they sat down at the same table together. Though Arkenberg has subsequently declared that he was representing only William at that hearing,[4] it seems clear that Gloria thought he was representing *1163 her as well. When the presiding judge evidenced surprise at the allocation of property, Gloria explained that she did not want the landfill business to be split up, and the judge accepted this explanation.[5] No record of these proceedings was made.
Approximately one year later, William Seevers decided to sell his business to Rumpke of Indiana Corporation, a competitor. The Seevers' landfill business was apparently stagnating, in part because illness precluded William from running it, and Shawn (who had been managing the business) had been dismissed by William after a falling-out. The attorney who negotiated the sale to Rumpke was none other than Franklin Arkenberg who, having personally drafted the un-filed Guaranty Agreement, knew that the Seevers had intended that Shawn have a remainder interest in fee simple for the landfill real estate as part of the dissolution settlement. Arkenberg, however, took no steps to inform either Gloria or Shawn of this development,[6] and drafted a sale agreement with Rumpke representing that William Seevers was the sole owner of the real estate (which he was because Arkenberg failed to file the Guaranty Agreement) and had full authority to convey its title.[7] Upon learning that the landfill acreage had not been included in the legal descriptions presented to the state court at the dissolution hearing, Arkenberg secured a Nunc Pro Tunc decree (which he apparently typed himself) from the state court which conveyed title to that land to William. The plaintiffs were given no notice of this proceeding.[8] Arkenberg argues that there was nothing underhanded in obtaining the Nunc Pro Tunc decree because it merely stated what all parties had previously agreed to, namely that the real estate would go to William. This assertion is disingenuous. Had the Guaranty Agreement been filed, the Nunc Pro Tunc decree would have been consistent with the terms of Gloria and William's dissolution negotiations. But when coupled with the pending sale to Rumpke and the fact that the Guaranty Agreement had not been filed, the Nunc Pro Tunc decree effectively cut off both Shawn's remainder interest and Gloria's allowance.
The consequences of Arkenberg's actions are as dismal as they are predictable. When William Seevers died in 1985,[9] Shawn and Gloria learned that their rights to the family business for which he had left school, and to which she had given her life's energy no longer existed, and that the very man they had trusted to protect these interests had been instrumental in taking them away.[10] Unlike Joseph K., however, the plaintiffs did not slit their throats in despair, but rather filed suit to regain their land or be compensated for it.
On February 12, 1987, a consolidated hearing was held in the Ripley County Circuit Court on actions brought against the *1164 estate of William Seevers by Shawn and Gloria, seeking to enforce their rights under the Guaranty Agreement. At this hearing, both Shawn and Gloria testified that they believed Arkenberg was representing both William and Gloria Seevers; they also thought the Guaranty Agreement he had prepared was operative, and that it guaranteed to them the real estate and an allowance, respectively. There was some testimony concerning the Nunc Pro Tunc entry, but it focused on the decree's effect rather than on Arkenberg's role in procuring it.
Meanwhile, on January 28, 1987, the plaintiffs had filed this suit against Arkenberg in federal court, alleging attorney malpractice, deceit, and fraud. Ostensibly to protect his interests in the federal action, Arkenberg moved (two months after the close of evidence, but before the ruling) to intervene in the pending state court action on the ground that the two cases dealt with the same underlying transaction. The state court, finding that both suits implicated Arkenberg's professional reputation, and that "common questions of fact and law" were involved, granted the motion to intervene.[11] In ruling on Shawn and Gloria's suits against the estate of William Seevers, the state court made the following finding:
Finding of Fact No. 1
The court finds that only William Seevers employed Franklin W. Arkenberg in the dissolution of marriage action between William and Gloria Seevers and in the preparation of the Guaranty Agreement between William Seevers and others. The court further finds that Franklin W. Arkenberg was obliged only to protect the interests of his client, William Seevers, and owed no duty to others.
The state court also made the following conclusions of law:
2. That the Claimants, Gloria Seevers and Shawn Seevers, have failed to establish by the evidence that attorney, Franklin W. Arkenberg, acting as counsel for William Seevers, had any obligation to protect the interests of or owed a duty to either of them in that they failed to show by the evidence that an attorney-client relationship existed between either of them and Franklin W. Arkenberg.
* * * * * *
6. It is the law in this state that an attorney may intervene in an action in which he is charged with personal misconduct in order to protect his reputation and any reflection upon his integrity.
7. That the Claimants, Gloria Seevers and Shawn Seevers, take nothing by way of claim against Franklin W. Arkenberg....
The plaintiffs admit that they knowingly failed to appeal from this decision.
The plaintiffs then petitioned the state court to set aside the Nunc Pro Tunc decree, and a hearing was held on this matter on July 6, 1987. On September 1, 1987, the court concluded that
[i]f in fact the court erred in entering the Nunc Pro Tunc Decree of Dissolution April 30, 1984, such error was harmless and resulted in no prejudice to the substantial rights of Gloria Seevers in that Gloria Seevers has testified that said Nunc Pro Tunc Decree of Dissolution merely spelled out and ordered the agreement and understanding of the parties with respect to disposition of their marital property at the time of the dissolution of their marriage.[12]
The facts detailed above comprise a description of a struggle by the plaintiffs to claim the rights they thought the Guaranty Agreement had secured for them. Conspicuously absent from the state court proceedings is any attempt to fasten liability *1165 on Arkenberg. The plaintiffs sought their land, not his hide. Now that their swords are drawn, however, the state court rulings and the doctrine of collateral estoppel seem to constitute a defense as impervious as the Great Wall of China. The plaintiffs refuse to give it up, however, and seek another chance to vindicate their claims before the law.
Section 1983 Claim
Count V of the amended complaint alleges that Arkenberg, in concert with Judge Pictor (formerly of the Ripley County Circuit Court), violated the plaintiffs' due process rights under color of state law by obtaining the Nunc Pro Tunc decree without notice to them.[13] The defendant apparently concedes that the Nunc Pro Tunc entry was improper[14] because such entries require that the adverse party be given notice and an opportunity to be heard. Taylor v. State, 438 N.E.2d 275, 278 (Ind. 1982); Stowers v. State, 266 Ind. 403, 363 N.E.2d 978, 983 (1977). Arkenberg has nevertheless moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action under which relief can be granted.
The plaintiffs' claim cannot be dismissed unless no set of facts could be adduced that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The facts alleged in the complaint, and all reasonable inferences drawn therefrom, are assumed to be true. Rankow v. First Chicago Corp., 870 F.2d 356, 357 n. 1 (7th Cir.1989). This court is not at liberty, however, to consider allegations which do not appear in the complaint, but which are averred only in legal briefs. Rodgers v. Lincoln Towing Service, 771 F.2d 194, 198 (7th Cir.1985).
Arkenberg argues that liability cannot attach under section 1983 because he was not acting under color of state law. It is well established that one need not be an officer of the state to act under color of state law; "[i]t is enough that [one] is a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir.1989). But "a private party's misuse of the courts, without more, does not constitute state action for purposes of section 1983." Greco v. Guss, 775 F.2d 161, 170 (7th Cir.1985) (emphasis added); see also Dennis v. Sparks, 449 U.S. at 28, 101 S.Ct. at 186. Hughes v. Meyer, 880 F.2d at 972; Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984). There must be evidence that the judge and the private actor shared the common goal of depriving an individual of constitutional rights. Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 435 (7th Cir. 1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987). Thus, in Sparks the Supreme Court refused to dismiss a section 1983 claim because the complaint alleged a "corrupt conspiracy" (e.g., bribery) between the judge and the private actor. 449 U.S. at 28, 101 S.Ct. at 186. To establish a prima facie case for such a corrupt conspiracy the plaintiffs must allege:
1) an implied or express agreement between the judge and private actor to deprive a plaintiff of constitutional rights; and
2) an actual deprivation of those rights.
See Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.1988). Though a conspiracy may be alleged with circumstantial evidence, mere conclusory allegations of a conspiracy are insufficient to withstand a motion to dismiss, Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985) (opinion of Coffey, J.); there must be allegations of joint action, or a "meeting of minds." Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir.1982). The Seventh *1166 Circuit seems to require an allegation that the judge shared the private actor's mens rea, and used his office consciously for improper motives (Scott v. Schmidt, 773 F.2d 160, 165 (7th Cir.1985)) or with the intent to "inflict a wrong" on a plaintiff. Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir.1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). In the present case, however, the complaint merely asserts that Arkenberg and the judge acted "in concert," and in no way suggests that the judge acted with evil intent.[15]Compare Mark v. Furay, 769 F.2d 1266, 1273-74 (7th Cir.1985) (plaintiff adequately stated section 1983 claim by alleging that the law enforcement officer involved already knew that the information supporting probable cause for arrest was false); Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187, 1191 (7th Cir.1984) (state actor assisted a union in coercing public employees to finance political activities). The plaintiffs' allegations amount to no more than the assertion that a Nunc Pro Tunc decree was improperly entered. This is insufficient to demonstrate state action under section 1983.
In response to Arkenberg's motion to dismiss, the plaintiffs allege in greater detail the purportedly illicit transaction between Arkenberg and Judge Pictor. These allegations are not properly before the court, however, because they appear only in a legal brief, rather than in an amended complaint. See Rodgers v. Lincoln Towing Service, 771 F.2d at 198.[16] The plaintiffs' attorney might have better spent his time by including these details in the amended complaint he was ordered to submit, but failed to file. (See Order of 12/14/88).[17]
The defendant, citing plaintiffs' failure to comply with the above order, asks that the section 1983 claim be dismissed with prejudice. The Seevers retort that the order denied Arkenberg's motion to dismiss, but it is clear that the denial was contingent upon the plaintiffs providing more specific allegations in the contemplated amended complaint. Having disregarded an express order of this court, the plaintiffs cannot justly argue that they are entitled to another opportunity to amend their complaint.
For the reasons stated above the defendant's motion to dismiss with prejudice is GRANTED. This court nevertheless retains jurisdiction over the state law claims because the parties are citizens of diverse states. 28 U.S.C. § 1332.
Collateral Estoppel
The defendant's primary contention with respect to the remaining state law claims is that they are precluded by the doctrine of collateral estoppel. Although both sides cite federal law to support their respective positions, the "full faith and credit" statute (28 U.S.C. § 1738) requires federal courts to apply Indiana law in determining the preclusive effect of a judgment rendered by an Indiana court. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, *1167 407 (7th Cir.1989); Wozniak v. County of DuPage, 845 F.2d 677, 680 (7th Cir.1988).
At this point it may help to distinguish between the doctrines of res judicata (or "claim preclusion") and collateral estoppel (or "issue preclusion"). Under claim preclusion, a judgment on the merits in a previous suit bars a later suit involving the same parties (or their privies) which is based on the same cause of action. In contrast, issue preclusion applies when some fact has been decided in a prior suit and the same fact arises in the subsequent suit. Both Indiana and federal law observe this distinction. The defendant has argued that issue preclusion estops the plaintiffs from bringing the present claims, and the court's discussion will be confined within the parameters of that doctrine.[18] Issue preclusion is designed to obviate the relitigation of issues that have already been decided. The Indiana Supreme Court held that issue preclusion applies
[w]here the causes of action are not the same, but where some fact or question has been determined and adjudicated in the former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties.
Town of Flora v. Indiana Service Corp., 53 N.E.2d 161, 163 (Ind.1944). The inquiry does not end here, for issue preclusion also requires (1) an identify of parties, and (2) mutuality of estoppel. Hardesty v. Bolerjack, 441 N.E.2d 243, 245 (Ind.Ct.App. 1982).
Indiana courts have not required a strict identity of parties; issue preclusion treats "privies" as if they were parties. Privies are persons "who are not parties to an action but who are connected with it in their interests [and] are affected by the judgment ... as if they were parties." Burtrum v. Wheeler, 440 N.E.2d 1147, 1151 (Ind.Ct.App.1982) (quoting In re Estate of Nye, 299 N.E.2d 854, 869 (Ind.App. 1973)). A privy has also been described as one who "after the commencement of the action, has acquired an interest in the subject matter affected by the judgment...." Tobin v. McClellan, 225 Ind. 335, 73 N.E.2d 679, 683 (1947).
In the present case, Arkenberg became a party to the state court action when he was allowed to intervene, but even putting that aside, he qualifies as privy to the action because his interests (professional reputation) would have been affected by the judgment. The mutuality of estoppel requirement, which looks to whether the party asserting collateral estoppel would have been bound if the judgment in the prior action had gone against him, is likewise satisfied.[19]See Gorski v. Deering, 465 N.E.2d 759, 763 (Ind.Ct.App.1984); Burtrum v. Wheeler, 440 N.E.2d at 1150. Arkenberg's successful intervention in the prior action fulfilled this requisite because intervenors are bound by a court's judgment. Southport Bd. of Zone App. v. Southside Ready Mix Concrete, 242 Ind. 133, 176 N.E.2d 112, 116 (1961); 17 I.L.E. Judgment § 420 ("In general, a third person *1168 who intervenes in an action will be bound by the judgment").
Having determined Arkenberg's eligibility to assert issue preclusion, the court must (1) determine what the first judgment decided; and (2) examine how that determination bears on the second case. Webb v. State, 453 N.E.2d 180, 183 (Ind.1983). This necessitates examining the record of the plaintiffs' suit against the estate of William Seevers. The defendant bases his issue preclusion defense on the state court's finding that he represented only William Seevers in the marriage dissolution, and that "the Claimants, Gloria Seevers and Shawn Seevers take nothing by way of claim against Franklin W. Arkenberg."[20] These statements do not foreclose further inquiry, however, because to be conclusive here those issues must have been "properly presented" to the state court. Town of Flora v. Indiana Service Corp., 222 Ind. 253, 53 N.E.2d 161, 163 (1944). This court declines to give conclusive effect to the findings quoted above, because they cover issues not properly before the state court.
Indiana's requirement that an issue have been properly presented to be given preclusive effect is analogous to the federal requirement that a party have been afforded a full and fair opportunity to litigate the issue in the previous action. See Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Gray v. Lacke, 885 F.2d 399, 406 (7th Cir.1989). This comports with the purpose of issue preclusion, which is to "limit[] relitigation of issues where that can be achieved without compromising fairness in particular cases." Hockett v. Breunig, 526 N.E.2d at 1001 (Shields, J., concurring) (quoting Blonder-Tongue Laboratories, 402 U.S. at 328, 91 S.Ct. at 1442) (emphasis added).[21] In the particular case at bar, fairness would be compromised by issue preclusion.
The court has scrutinized carefully the transcript of the plaintiffs' state court action against the estate of William Seevers. It is true that testimony concerning the preparation of the Guaranty Agreement and PSA was offered, and that the question of who Arkenberg was representing during these transactions was peripherally bruited. But the central claims of the case concerned claims against William Seevers' estate: whether the Guaranty Agreement should be given effect, and whether the estate administrator was diminishing the assets. The finding by the court that Arkenberg represented only William Seevers was gratuitous, being wholly unnecessary to resolve the claims before the court. The defendant may argue that the intervention of Arkenberg placed that issue properly before the court. This assertion notwithstanding, the fact of intervention does not demonstrate that the issue had been "fully and fairly litigated."[22] At the hearing on Arkenberg's motion to intervene, no witnesses were called, no evidence was adduced, and no charges of attorney misconduct were levelled at Arkenberg. It does not comport with justice to allow Arkenberg to shield himself behind an unnecessary state court finding taken from a case where he was not even charged with misconduct.[23] This court believes that Indiana courts would not apply issue preclusion to the question of whom Arkenberg represented. Therefore, Arkenberg may still be held liable for his conduct vis-a-vis the *1169 plaintiffs, and is answerable to that allegation.
Count IMalpractice
The plaintiffs assert in Count I that Arkenberg committed malpractice by engaging in an attorney-client relationship with both Gloria and Shawn Seevers, and then failing to competently represent their interests.[24] The defendant contends that the statute of limitations bars this action. An attorney malpractice action alleges damage to a personal property interest, and Indiana law prescribes a two year statute of limitations for such injuries. See Whitehouse v. Quinn, 477 N.E.2d 270, 274 (Ind.1985); Shideler v. Dwyer, 275 Ind. 270, 417 N.E.2d 281, 287 (1981); Ind.Code § 34-1-2-2. Arkenberg argues that the statute of limitations began running at the time the plaintiffs heard of the sale to Rumpke in early 1984; the plaintiffs aver that it was tolled until October of 1985, two months after William Seevers died.
Generally the statute of limitations begins to run at the time a cause of action accrues, even if the plaintiff does not learn of the damaging act until later. See Shideler v. Dwyer, id.; Tolen v. A.H. Robins Co., 570 F.Supp. 1146 (N.D.Ind. 1983). Where an act of malpractice could constitute constructive fraud, however, the statute of limitations does not run until the plaintiff has knowledge of the injury. Keystone Dist. Park v. Kennerk, Dumas Burke, 461 N.E.2d 749, 751 (Ind.Ct.App. 1984); Madison County Bank & Trust Co. v. Kreegar, 514 N.E.2d 279, 281 (Ind.1987). This exception only favors alert plaintiffs, because a plaintiff must show that he exercised reasonable care and diligence to discover the injury caused by the alleged malpractice. Keystone, 461 N.E.2d at 751. It is undisputed that both Gloria and Shawn Seevers learned of the sale to Rumpke in the spring of 1984. While they may have had good reasons to believe the sale did not include the actual landfill acreage, they should have used "due diligence to make further inquiries." Keystone, 461 N.E.2d at 751. This is not too much to require of people whose very livelihood was intertwined with the subject property. The statute of limitations began sometime (the exact moment is unimportant) in the spring of 1984, and the malpractice claim was not filed until January 28, 1987. Therefore, Count I is barred by the two-year statute of limitations (Ind.Code § 34-1-2-2) and the defendant's motion for summary judgment on this count is accordingly GRANTED. Fed.R.Civ.P. 56(c).
Counts II-III
In his answer dated March 20, 1987, Arkenberg asserts the statute of limitations as an affirmative defense to all of the plaintiffs' claims. Arkenberg argued this point in his legal briefs only with respect to Count I, but the inclusion of the defense in the responsive pleading preserves it with respect to Counts II-IV.
Count II charges Arkenberg with attorney deceit under Ind.Code § 34-1-60-9. This statute provides that
[a]n attorney who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge or a party to an action or judicial proceeding commits a class B misdemeanor, and he shall also forfeit to the party injured treble damages, recoverable in a civil action.
This statute does not create a new cause of action, but rather provides treble damages for actions based on the common law action of deceit. Anderson v. Anderson, 399 N.E.2d 391, 402-403 (Ind.App.1979). To establish a claim for deceit a plaintiff must show that
a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.
*1170 Id. at 403. Very few cases have interpreted the statute, and none have addressed what statute of limitations applies to it. The Indiana Supreme Court has held that where it is unclear which statute of limitations is apposite, courts should be guided by the nature of the alleged harm. See Whitehouse v. Quinn, 477 N.E.2d at 274.
Although attorney malpractice claims are analogous to attorney deceit claims, the nature of the deceit action most closely resembles an action for fraud. Therefore the appropriate statute of limitations is that applicable to fraud, which is six years. Ind.Code § 34-1-2-1. The plaintiffs are well within this period.[25]
The defendant argues that he is entitled to judgment as a matter of law on Counts II and III because any alleged misrepresentations were merely "future promises" or "expressions of opinion." See Royal Business Machines v. Lorraine Corp., 633 F.2d 34, 45 (7th Cir.1980) (applying Indiana law). This argument might prevail if Arkenberg had done no more than opine to the plaintiffs that the Guaranty Agreement was a "good deal." But Arkenberg made many other representations which created the impression that their interests in the landfill property were protected. It is immaterial that the state court found that the Guaranty Agreement was an executory promise to convey the property in the future;[26] the relevant inquiry concerns what Arkenberg initially represented the Agreement to be, not what its ultimate legal effect turned out to be. Taken as a whole, the record arguably suggests that Arkenberg represented to the plaintiffs that their interests were protected at that moment, that is, when the final dissolution order was entered by the court, not that they would be protected at some future date. The facts adduced, construed favorably to the Seevers, would support a finding that Arkenberg represented to the plaintiffs that they were the present owners of a vested future interest in the real estate described above. The alleged fraud has been adequately alleged, and there appear to be genuine issues of material fact surrounding the claim. Therefore, the defendant's motion for summary judgment on Counts II and III is DENIED.
Count IV
The plaintiffs' last claim against Arkenberg is for breach of an equitable duty and constructive fraud. Constructive fraud is "the breach of a legal or equitable duty which is fraudulent because of its tendency to deceive others...." Sanders v. Townsend, 509 N.E.2d 860, 865 (Ind.Ct.App.1987). The elements of constructive fraud are:
(1) a duty existing by virtue of the relationship of the parties;
(2) representation or silence which is deceptive;
(3) proximate cause, or reliance; and
(4) resulting injury to the plaintiff.
Id. at 865. The defendant relies on collateral estoppel, asserting that he neither owed a duty to nor had a special relationship with the plaintiffs, because the state court found that only William Seevers was Arkenberg's client. As discussed supra, this issue was not properly before the state court, so that finding of fact cannot be dispositive. Arkenberg's second line of defensethat "undisputed facts show the Defendant acted as the attorney for William Seevers only"is equally uncompelling. The record evidences a common confusion as to whom the defendant represented. Arkenberg concedes that he told William and Gloria that he could represent both of them, provided no conflict arose.[27] A plausible reading of the record suggests that *1171 before her husband's death, Gloria knew of no conflicts that would have terminated the representation, and thus continued to rely on Arkenberg to protect her interests.[28] It cannot be held as a matter of law that no confidential relationship existed between the plaintiffs and the defendant. This is a factual issue for the jury to determine. This material issue is genuinely and fiercely disputed; therefore the defendant's motion for summary judgment on Count IV is DENIED.
Conclusion
The defendant's motion to dismiss with prejudice Count V is GRANTED. The defendant's motion for summary judgment is GRANTED with respect to Count I, and DENIED with respect to Counts II-IV. Because there are no further motions pending, and this case has already languished for several years, it takes priority on the court's docket, and will be set for trial during the March 1990 term of court in New Albany.
It is so ORDERED.
NOTES
[1] Deposition of Gloria Seevers, pp. 8-9. The record also suggests that Arkenberg told the Seevers that he could not represent either of them if conflicts developed. Id. at 9.
[2] Id. at 11.
[3] Arkenberg had previously represented Shawn on several occasions, ranging from Shawn's divorce in 1978 to "traffic tickets and minor stuff." Deposition of Shawn Seevers, p. 10. While there was no on-going business relationship between Shawn and Arkenberg, the record suggests that Shawn sought Arkenberg's help whenever legal issues arose. Id. at 11. It is also worth noting that Shawn's legal expenses (except for the divorce) were paid for by his parents' landfill company.
[4] Deposition of Frank Arkenberg, p. 71.
[5] Gloria apparently believed that the Guaranty Agreement was among the filed papers before the judge.
[6] The defendant argues that Shawn had constructive notice of the proposed sale because Shawn was working for Rumpke at the time and had heard about the sale. Shawn, however, thought that his father was only selling the trucks and routes of the landfill business, not the land itself. This belief was based on William Seever's oft-repeated vow never to sell the land which had been in his family for generations, and the knowledge that Rumpke still used exclusively the landfill in the next village, Batesville, rather than utilizing the land (previously) owned by Shawn's father. Gloria Seevers also believed that the family land had not been sold because of William's vows, and because she was still receiving $300 per week, supposedly from the Guaranty Agreement she thought to be in effect.
[7] The total size of the landfill site was 80 acres. Only 65 acres were conveyed to Rumpke; the remaining "homestead" of 15 acres was eventually bought from the estate by Michael Seevers.
[8] The factual allegations that the state court judge conspired with the defendant to deprive the plaintiffs of their civil rights by entering a Nunc Pro Tunc decree without notice will be examined infra.
[9] William Seevers' will left everything to his second wife, Louise, and his son Michael. Gloria and Shawn received nothing.
[10] It was only at this point that Arkenberg advised the plaintiffs that he could not represent them, and that they should retain a different attorney.
[11] Shawn Seevers and Gloria Seevers v. Estate of William Seevers and Franklin W. Arkenberg (Defendant-Intervenor), P-85-69, Ripley Circuit Court, May 13, 197, Finding of Fact No. 9.
[12] Again, it is clear that Gloria's belief that the Nunc Pro Tunc Decree was consistent with "the agreement and understanding of the parties with respect to the disposition of their marital property" presupposed the efficacy of the Guaranty Agreement, which secured her and Shawn's interests.
[13] To the extent that the complaint could be construed to state a 42 U.S.C. § 1985(3) conspiracy, it is deficient because there is no indication of a class-based discriminatory animus against the plaintiffs. See Griffen v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir.1985).
[14] Deposition of Franklin W. Arkenberg, p. 98.
[15] In paragraph 69 of the Amended Complaint, the plaintiffs allege "[t]hat these acts of Frank [sic] Arkenberg, in concert with the Ripley County Court, were committed with conscious disregard for the rights of Shawn and Gloria Seevers...." This could be construed to allege that the judge consciously disregarded the Seevers' rights, but even so it is too conclusory.
[16] It might be noted that the sworn testimony plaintiffs refer to in support of their conspiracy charge in no way indicates that Judge Pictor knowingly acted illegally. He knew that the plaintiffs were not given notice of the Nunc Pro Tunc decree, but he seemingly was not aware that this was improper. (Transcript of Hearing before Judge Gay, 7/27/87). More must be alleged to create state action).
[17] This Order, in its entirety, reads as follows: "This matter is before the court on the defendant's motion to dismiss Count V of the complaint and on the plaintiffs' response to that motion, which the court interprets as a motion for leave to amend the complaint. Being duly advised, the court hereby GRANTS the plaintiffs' motion to amend Count V of the complaint in order to more fully detail those allegations of conspiratorial knowledge or agreement that underlie their section 1983 claim. Any such amended complaint must be filed with the court within fifteen (15) days of this entry. The court hereby DENIES the defendant's motion to dismiss Count V of the complaint."
[18] Neither party has raised the issue of whether claim preclusion bars this suit. Under Indiana law, there are four elements to claim preclusion: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter at issue was, or might have been, determined in the former suit; (3) the controversy adjudicated in the former suit was between parties to the present suit; and (4) the judgment in the former suit was rendered on the merits. State Exchange Bank of Culver v. Teague, 495 N.E.2d 262, 266 (Ind.Ct.App.1986). Although this court has considered the issue, it declines to address sua sponte a potentially dispositive matter. In any event, it is hard to imagine how attorney misconduct claims could reasonably have been raised in the state court action against the estate of William Seevers. Thus the second prong of the claim preclusion test would be difficult to satisfy. Cf. Hoffman v. Dunn, 496 N.E.2d 818, 821 (Ind.Ct.App.1986) ("In claim preclusion, the critical question is whether the present claim was within the issue of the first.")
[19] Federal law (and most other jurisdictions) has dispensed with the mutuality requirement for issue preclusion. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). The requirement has not wholly disappeared, however, and remains secure in the castle of Indiana law. Cf. Hockett v. Breunig, 526 N.E.2d 995, 999 (Ind.Ct.App.1988) (Shields, J., concurring).
[20] Conclusion of Law # 7.
[21] The United States Supreme Court also noted that there was no "automatic formula" for applying issue preclusion, and that such decisions "necessarily rest on the trial court's sense of justice and equity." Blonder-Tongue Laboratories, 402 U.S. at 333-34, 91 S.Ct. at 1445.
[22] It may be contended that the plaintiffs had the opportunity to litigate this issue, and simply failed to do so. As stated supra, however, it is hard to believe that a proceeding in which the plaintiffs sought to enforce the Guaranty Agreement drafted by Arkenberg was the appropriate forum for suing Arkenberg because that very document was unenforceable.
[23] This court does not, of course, sit in judgment on the state court's ruling to allow Arkenberg to intervene. The question remains, however, whether Indiana courts would give the factual findings related to the intervention preclusive effect in this case.
[24] The facts alleged and the legal standard for summary judgment have been adequately detailed supra.
[25] The statute of limitations defense is ineffective as to Counts III and IV as well, because they too sound in fraud.
[26] This finding would collaterally estop an action to enforce the Guaranty Agreement, as the efficacy of the Agreement was properly before the state court. The present action does not, however, put that finding at issue.
[27] It bears mention that Arkenberg was ethically obliged to withdraw from representing either party once a conflict arose. See Rules of Professional Conduct, Rule 2.2. See also Rule 4.3 ("When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding").
[28] Shawn also apparently believed that Arkenberg was representing him during the dissolution negotiations.
Q. You understood during this time that Frank was representing your father, didn't you?
A. No, sir.
Q. Who did you think he was representing?
A. Mom and Dad both.
Q. How about you?
A. Well yeah me too.
Deposition of Mr. Shawn Seevers, 10/6/87, p. 25.
|
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-09-00026-CR
_____________________
JOHN WILLIAM GREER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 08-03607
MEMORANDUM OPINION
On December 2, 2008, the trial court sentenced John William Greer on a conviction
for burglary of a habitation. Greer filed a notice of appeal on January 22, 2009. The trial
court entered a certification of the defendant's right to appeal in which the court certified that
this is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P.
25.2(a)(2). The district clerk has provided the trial court's certification to the Court of
Appeals. On January 29, 2009, we notified the parties that we would dismiss the appeal
unless the appellant established grounds for continuing the appeal. The appellant filed a
response but failed to establish that the trial court's certification should be amended.
Because the record does not contain a certification that shows the defendant has the right of
appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Accordingly, we dismiss
the appeal.
APPEAL DISMISSED.
DAVID GAULTNEY
Justice
Opinion Delivered March 4, 2009
Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.
|
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FILED
NOT FOR PUBLICATION SEP 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD LYLE STRATTON, No. 10-35656
Plaintiff - Appellant, D.C. No. 3:09-cv-05571-RJB-KLS
v.
MEMORANDUM *
JULIE BUCK, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington at Tacoma
Robert J. Bryan, District Judge, Presiding
Argued and Submitted June 8, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**
Plaintiff Donald Lyle Stratton (“Stratton”) appeals from the judgment in
favor of Defendant Julie Buck, M.D. (“Dr. Buck”) entered pursuant to the order
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for the
District of Hawaii, sitting by designation.
granting summary judgment in favor of Dr. Buck.1 We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
We review a district court’s grant of summary judgment de novo. Emeldi v.
Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). We review the district court’s
findings of fact for clear error, and we review the district court’s conclusions of
law de novo. Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080,
1087 (9th Cir. 2011). We review for an abuse of discretion the district court’s
decision not to permit further discovery to oppose a motion for summary judgment.
Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), cert. denied,
132 S. Ct. 1823 (2012).
First, Stratton argues that the district judge erred in granting summary
judgment to Dr. Buck because Stratton did not receive the notice described in Rand
v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), when Dr. Buck filed her
motion for summary judgment. Stratton did receive the magistrate judge’s Pretrial
Scheduling Order, filed January 13, 2010, which contained a section entitled
“MOTIONS” and which quoted the model notice appended to Rand. This Court,
however, has recently held that Rand notices “must be served concurrently with . . .
1
Stratton also appeals from the judgment in favor of Defendant Dale Brown
(“Brown”) entered pursuant to the order granting Brown’s motion to dismiss. That
portion of Stratton’s appeal is addressed in a separate Opinion filed concurrently
with the instant Memorandum.
2
motions for summary judgment so that pro se prisoner plaintiffs will have fair,
timely and adequate notice of what is required of them in order to oppose those
motions.” Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012). Thus, in the instant
case, the magistrate judge’s Pretrial Scheduling Order did not provide Stratton with
the notice required by Rand and Woods.
Woods also recognized that “[t]he failure to provide adequate Rand notice is
a ground for reversal unless it is clear from the record that there are no facts that
would permit the inmate to prevail.” Id. at 941 (citing Rand, 154 F.3d at 962 n.9).
In ruling on Dr. Buck’s motion for summary judgment, the district judge
considered Dr. Buck’s declaration, which stated, inter alia, that: when Dr. Buck
treated Stratton, she was practicing in the hospital as an independent contractor;
neither the hospital nor the state was her employer; and she did not act at the
request of, at the direction of, or in coordination with the state. At the oral
argument before this court, Stratton’s counsel admitted that the district judge had
all of the relevant facts on the state actor issue when he ruled on Dr. Buck’s motion
for summary judgment. Based on Dr. Buck’s declaration and Stratton’s admission
during oral argument, it is clear from the record that there are no facts that would
permit the inmate to prevail. See discussion infra affirming the district judge’s
conclusion that Dr. Buck was not a state actor. We therefore hold that the failure
3
to give the Rand notice contemporaneously with the filing of Dr. Buck’s motion
for summary judgment was harmless under the facts of this case.
Second, Stratton contends that the district judge abused his discretion when
he denied Stratton’s request to conduct discovery to respond to Dr. Buck’s motion
for summary judgment. In his objections to the magistrate judge’s Report and
Recommendation to grant Dr. Buck’s motion for summary judgment, Stratton
argued that he could not properly oppose Dr. Buck’s motion because Dr. Buck had
not responded to his discovery requests. Dr. Buck’s counsel attached the responses
to a declaration filed after Stratton filed his objections. Dr. Buck’s responses were
consistent with the declaration that she submitted with her motion for summary
judgment, and Stratton did not seek leave to supplement his objections in light of
Dr. Buck’s discovery responses. Moreover, Stratton failed to identify either
specific relevant information in Dr. Buck’s responses that would have supported
Stratton’s opposition to Dr. Buck’s motion for summary judgment or specific
information indicating that further discovery would lead to relevant evidence
supporting Stratton’s opposition. We therefore hold that the district judge’s denial
of Stratton’s request to conduct discovery to respond to Dr. Buck’s motion for
summary judgment was not an abuse of discretion.
Finally, Stratton argues that the district judge erred in concluding that
4
Dr. Buck was not acting under color of state law when she treated him. Generally,
private conduct is not considered government action unless “‘something more’” is
present. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.
1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)). “Courts
have used four different factors or tests to identify what constitutes ‘something
more’: (1) public function, (2) joint action, (3) governmental compulsion or
coercion, and (4) governmental nexus.” Id. at 835-36 (some citations omitted)
(citing Lugar, 457 U.S. at 939). Dr. Buck relies on the statements in her
declaration, and she also argues that, under the Emergency Medical Treatment and
Active Labor Act, 42 U.S.C. § 1395dd, she could not choose whether or not to
provide treatment to Stratton. Stratton did not present any evidence to contest this
and, as previously stated, he did not identify any further discovery that he could
have done to respond to Dr. Buck’s motion for summary judgment. Thus, under
the facts of this case, neither the joint action test, the governmental compulsion or
coercion test, nor the governmental nexus test applies. Further, there is no Ninth
Circuit case law holding that emergency medical care is a traditionally and
exclusively governmental function. We therefore affirm the district judge’s
conclusion that Dr. Buck’s treatment of Stratton did not constitute state action, and
we affirm the district judge’s grant of summary judgment in favor of Dr. Buck.
5
Accordingly, we AFFIRM the judgment in favor of Dr. Buck.
In this case, there is a mixed judgment, where each side has won something
and lost something, the parties are therefore ordered to bear their own costs on
appeal. Exxon Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009).
6
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|
64 So.3d 1158 (2009)
C.D.J.
v.
STATE.
No. CR-08-1439.
Court of Criminal Appeals of Alabama.
December 4, 2009.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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5 B.R. 7 (1979)
In the Matter of The COMMUNITY HOSPITAL OF ROCKLAND COUNTY, Debtor.
Bankruptcy Nos. 79 B 20074, 79 ADV 2004.
United States Bankruptcy Court, S.D. New York.
December 27, 1979.
*8 Ballon, Stoll & Itzler, New York City, by Ronald Itzler and M. David Graubard, New York City, for debtor.
Robert B. Fiske, Jr., U.S. Atty., by Stuart M. Bernstein, Asst. U.S. Atty., New York City, for the Government.
DECISION ON COMPLAINT RE: DETERMINATION OF PREFERENCE PAYMENTS
HOWARD SCHWARTZBERG, Bankruptcy Judge.
The debtor, The Community Hospital of Rockland County, has filed a complaint in an adversary proceeding against the Government, and specifically, the Internal Revenue Service, to obtain a release of funds that were seized under the Government's prepetition levies. The debtor needs these funds in order to meet its payroll tomorrow. The Government opposes the debtor's action on grounds of lack of jurisdiction and sovereign immunity. The facts are not disputed.
On December 14, 1979, the debtor filed its petition for relief under Chapter 11 of the Bankruptcy Reform Act of 1978. The debtor is now operating as a debtor-in-possession in accordance with Code § 1107.
On and between November 14, 1979, and December 10, 1979, the Government, through the Internal Revenue Service, served notices of levy upon various third parties who were then indebted to the debtor. The aggregate debt owed to the debtor hospital by third persons, such as Blue Cross, Blue Shield, Rockland County Department of Social Services, New York City Department of Social Services, Citibank, Nanuet National Bank, Aetna Life and Casualty, Group Health, Inc. and New York State Department of Social Services, exceeds the sum of $100,000.00.
To date, the Internal Revenue Service has collected under its levies the sum of $38,502.89, which it has applied to the debtor's tax obligation with respect to the first quarter of the calendar year 1977. The taxes currently owed by the debtor exceed $703,000.00.
The debtor operates a hospital in Rockland County, New York. Its payroll for its employees must be met tomorrow, December 28, 1979. Accordingly, when the debtor filed its summons and complaint yesterday, December 26, 1979, it also presented an order which this court signed shortening the Government's time to answer to today, December 27, 1979, which date was also fixed for the trial. Because of the shortness of time involved, the debtor was only prepared to go forward with its first cause of action directed to Code § 724. The second cause of action asserts an alleged preference received by the Government. The third cause *9 of action is directed to obligations arising after the levy.
The debtor's gross payroll for the two week period ending December 8, 1979, aggregated $92,144.99. Pursuant to an order of this court dated December 14, 1979, this payroll was paid on December 14, 1979.
The debtor now seeks an order directing the Government to release $92,144.99 to meet its payroll for tomorrow. The debtor argues that the funds in question are priority expenses. As such, the debtor urges under its first cause of action that the Government's tax lien must be subordinated to such priority expenses, in accordance with Code § 724(b).
Because of the gravity of the situation, including the potential closing of a hospital providing essential health services to the community in which it is located, the court afforded the parties an opportunity to attempt to resolve the financial dilemma, at least as to the payroll needed for tomorrow. After telephone communications with the Internal Revenue Service, the Government advised the court that it would not consent to a release of any levied funds for payroll purposes because of the debtor's financial history, the amount of taxes owed and the fact that the problem will reoccur each subsequent payroll period.
Since the parties have not been able to arrive at an understanding which would result in the release of funds from the Government's levy to meet tomorrow's payroll, it is therefore imperative that this court immediately resolve the questions posed by the pleadings and the factual presentation.
The debtor states in its complaint that its payroll consists of wages earned within ninety days of the filing of the petition and that no individual wage payment exceeds $2,000. Therefore, the complaint alleges that this payroll would afford a priority claim under Code § 507(a)(3), which provides as follows:
"§ 507. Priorities.
(a) The following expenses and claims have priority in the following order: . .
(3) Third, allowed unsecured claims for wages, salaries, or commissions, including vacation, severance and sick leave pay "
However, since this payroll covers wages due after the filing of the petition for relief, it constitutes an administrative expense within the meaning of Code § 503(b)(1)(A), which relates to:
"[T]he actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case" . . .
As a § 503(b) administrative expense, the payroll expense qualifies as a first priority under Code § 507(a)(1), which refers to "administrative expenses allowed under Section 503(b)."
Advancing from the premise that its payroll is a priority expense under Code § 507, the debtor then reasons that the Government's tax lien is subordinated under Code § 724(b)(2) to such priority claim.
The pertinent language in Code § 724(b)(2) is as follows:
"(b) Property in which the estate has an interest and that is subject to a lien that is not avoidable under this title and that secures an allowed claim for taxes, or proceeds of such property, shall be distributed
. . . . .
(2) [S]econd, to claims specified in Sections 507(a)(1), 507(a)(2), 507(a)(3), 507(a)(4), and 507(a)(5) of this title, to the extent of the amount of such tax claim that is secured by such tax lien;" . . .
The debtor concludes that since the payroll expense is a priority to which the Government's tax claim must be subordinated, it follows that such priority expense funds are property of the estate within the meaning of Code § 541 and should be turned over to the debtor in accordance *10 with Code § 542(a).[*] This syllogism, however, is not based upon a sturdy foundation.
The government opposes the debtor's conclusion that the levied funds are property of the estate to the extent of the payroll priority for wages and cites the recent decision in Bush Gardens, Inc. v. United States of America, No. 79-0001 (Bk.Ct.N.J. Nov. 21, 1979; Hill, B.J.), where the Bankruptcy Court held that a liquor license levied upon and seized by the Government for the collection of taxes pursuant to 26 U.S.C. § 6331, prior to the filing of a petition under the Bankruptcy Code, is not "property of the estate" within the meaning of Code § 541. The decision, however, is based upon the holding in Phelps v. United States, 421 U.S. 330, 95 S.Ct. 1728, 44 L.Ed.2d 201 (1975) and In re Pittsburgh Penguins Partners, 598 F.2d 1299 (3 Cir. 1979). These cases were decided prior to the effectiveness of § 541 of the current Bankruptcy Code. Under § 541, the Bankruptcy Court is no longer concerned with who has title or possession. Code § 541(a) states that the commencement of a case creates an estate and that such estate includes:
"all legal or equitable interests of the debtor in property as of the commencement of the case."
Indeed, the court in Bush Gardens, Inc., supra, expressed no opinion with respect to a pre-filing seizure by a secured party under Article 9 of the Uniform Commercial Code or a pre-filing levy to enforce a judgment in favor of a private party. Thus, solely for purposes of a pre-filing levy by the Internal Revenue Service, the Bankruptcy Court felt compelled to follow the more restricted pre-Code view of what constitutes "property of the estate".
This court need not decide whether or not it agrees with the Bush Gardens, Inc. case cited by the Government, because a determination that the debtor's payroll expense funds are or are not property of the estate is irrelevant. The debtor's first cause of action, pitched to the subordination of tax liens under Code § 724(b), must fail because this section applies only to distributions in liquidation cases under Chapter 7. Code § 724 was derived from Section 67c(3) of the former Bankruptcy Act and is intended to solve certain circuity of liens problems that arise in connection with the subordination of tax liens to administrative expense and wage claims. See House Report No. 95-595, 95th Cong., 1st Sess. (1977) 382, U.S.Code Cong. & Admin.News 1978, p. 5787. Code § 724 is not applicable to reorganization cases under Chapter 11. This point is expressed in Code § 103(b), which states:
"Subchapters I and II of Chapter 7 of this title apply only in a case under such chapter." (Emphasis added)
Since Code § 724(b) is contained in Subchapter II of Chapter 7 of the Bankruptcy Code, it is expressly inapplicable to this case.
Hence, the debtor's first cause of action must be dismissed.
The Government also maintains that the entire complaint must be dismissed because it did not file a claim in this case and has not waived its sovereign immunity from suit. It should be noted that the debtor's complaint is not addressed to a determination of its tax liability. Manifestly, the Bankruptcy Court has authority under Code § 505 to determine any unpaid tax liability of the debtor that has not been contested or adjudicated before the commencement of the case. The complaint seeks a release of funds embraced under the Government's prepetition tax levies.
Reference must be had to Code § 106 in ascertaining the extent of the Government's waiver of sovereign immunity. *11 This section provides for a limited waiver of sovereign immunity in bankruptcy cases. See House Report No. 95-595, 95th Cong., 1st Sess. (1977) 317; Senate Report No. 95-989, 2d Sess. (1978) 29-30, U.S.Code Cong. & Admin.News 1978, p. 5787. Code § 106(a) is inapplicable since it is conceded that the issue before the court does not involve a compulsory counterclaim to any governmental claim. Therefore, consideration must be given to Code § 106(b), which provides as follows:
"(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate." (Emphasis added)
This subsection has the effect of waiving the Government's sovereign immunity for the purpose of the setoff of claims. Since the Government has not filed any claim in this case, it may properly assert that it has not waived its sovereign immunity. In light of the Government's assertion of sovereign immunity, this court is constrained to conclude that it lacks jurisdiction to entertain the debtor's complaint, which therefore must be, and is, dismissed.
IT IS SO ORDERED.
NOTES
[*] § 542. Turnover of property to the estate.
(a) Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
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995 A.2d 353 (2010)
COM.
v.
WEHRENBERG.[21]
No. 486 WAL (2008).
Supreme Court of Pennsylvania.
May 5, 2010.
Disposition of Petition for Allowance of Appeal Denied.
NOTES
[21] Justice ORIE MELVIN did not participate in the consideration or decision of this matter.
|
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. ”
‘arrwTYis a,. Tkxan
March 26, 1957
Hon. John Osorio, Chairman Opinion No. WW772
Board of Insurance Commissioners
International Life Building Re: Whether Article 14.61 of /
Austin, Texas the Texas Insurance Code
authori5e.S a mutual ~assess-
paant 855ociatiOn to Yriin-
sure* one 0r:more of its
groups, and at~th5 same
time continue its corporate
exis+ce by the retention
of another group, club or
c&as which is not made
tibject to the reinsurance
Dear Sir: ag,reemen$
You have asked our opinion as to whether. a mutual assess-
ment association is authorized by Article 14.61, Texas Insursnce ,Code, to
“reinsure” one of its groups, clubs, or classes, and at the same time con-
tinue its corporate existence as a mutual assessment association by the re-
tention of another group, club, or class. which is not made subject to the
“reinsurance” agreement.
A mutual assessment association is an association of indi-
viduals or group5 of individuals fn tbi ,busiaess ,d q+adly protecting or
insuring their lives by assessmsnts made npoe ruch members No stat-e-
wide mutual assessment association has been created since 1933, is the
Legislature saw fit at that time to p+iblt tlmfprtber’forqnstioa of such
companies. Acts 1933,43rd Leg., C+, 24S,<The Lspislature pk@ded
that upon meet&g certainrequirements and ,quallfic8timis. 555oc~tions
doing business ,at that .ti.me could c,~ntinue operatlous, Ln accordance with
the shtutes enacted. Fifty-two of tha associations complied wfth the re-
quirements and are doing business today. In many instances the associa-
tion is made up of particular groups, clas6,e6, or clubs of Mividuals.
rather than individual memberships only.
Article 14.61 is attached he.reto in appendix form and we
have quoted extensively from it for we feel that 8 complete reading of the
statute is necessary to reach its proper construction.
The words “reinsurance’ and ‘reinsured,” as used in Ar-
ticle 14.61, refer to a transaction in which the assuming company issues
its policies or certificates in lieu of the policies originally issued by the
ceding association, and upon the completion of the transaction, the ceding
association is released from all liability to the policyholders. It is not a
true reinsurance arrangement, but is one inwhich there is an actual trans-
fer or conveyance of the business to a second company which issues its
Hon. John Osorio, page 2 (WW-72)
policies or certificates to the policyholders. Article 14.62 authorizes mu-
tual assessment associations to enter into true reinsurance agreements
whereby the association merely insures ,or indemnifies itself against the
possibility of excess claims. Reinsutance transactions authorized by Ar-
ticle 14.62 are not under consideration here.
It will be noted that Article 14.61 covers conversion or re-
insurance by the assessment company into a legal reserve insurance com-
pany operating under the provisions of Chapter 11 of the Code, and also
covers reinsurance into a legal reserve insurance company operating under
the provisions of Chapter 3 of the Code. Article 14.63’af the Code author-
izes conversion of mutual assessment companies into legal reserve com-
panies operating under Chapter 3. Therefore, the following discussion ap-
plies to all conversion or reinsurance by the assessment companies into
either legal resetve mutual companies under Chapter 11, or legal reserve
.
stock companfes under Chapter 3.
A cardinal rule of statutory construction requires that all
the language and every part of a statute shall be given effect if reasonably
possible, that the statute be construed as a whole, and that all of its parts
be harmonized so as to give effect to the entire act according to the evi-
dent intention of the Legislature. 39 ‘Tex. Jur.. Sections 112, 113. Each
part of the statute is to be considered in connection with every other part,
and with the entire enactment, in order to produce a harmonious whole and
to reach the true legislative intent.
Section-l(a) of Article 14.61 provides that “any domestic lo-
cal mutual aid association; statewide life, or life, health and accident asso-
ciation; mutusl assessment life, health and accident association; burial as-
sociation; or~any other similar concern, by whatsoever name or class desig-
nated, whether specifically named herein or not. . . .” may convert or -re-
insure” itself into a Chapter 1.1 company, or be ‘reinsured” by a Chapter 3
company. When A,rticle 14.61 is view,ed in its entirety and as a whole, it
is clear that the phrase -or any other similar, concern, by whatsoever name
or class designated” does not contemplate or authorize that a mutual assess-
‘U
ment company may reinsure*~.one or ~more of its groups, clubs, or classes,
yet retain another group, club or’class which is not affected by the ‘reinsur-
ance” agreement. This same language is used in Article 14.01 of the Code,
which article identifies the typeS of associations to which Chapter 14 shall
apply. The words, “whatsoever name or class designated,” are used so as
to include within the statute all similar mutual assessment associations not
specifically named therein, but do not refer to the individual member groups
or clubs of each such association.
When, read in its entirety and viewed as a whole, Article 14.61
authorizes only the entire association to convert or reinsure itself. The
statute provides that “any association . . . may convert or reinsure itself
into . . . or be reinsured by. . . ” a legal reserve company. The stax
establishes a method whereby the entire association approves the procedure
of conversion or reinsurance. It further provides that upon complying with
.
Hon. John Osorio. page 3 (WW-72)
the statutory procedure the “reorganized and converted or reinsured cor-
poration shall be deemed in law to have the rights, prlvfleges, powers and
authority of any other corporation . . . ” and “It shall be deemed in law to
be a continuation of the business of the former association and shall suc-
ceed to and become invested with all and singular the rights and privileges
. . . and all property . . . of the former association. , . and of other things
and chose6 in action theretofore belonging to such a5soci5tion, and all prop-
erty, rights, privileges, franchises, and all other interests shall thereafter
be as effectually the property of such organised and converted corporation
as if they were the property of the former association, . . . ”
Section 2 of Article 14.61-provides that “The sums of any
mortuary funds belonging to such association shall thereafter be the prop-
erty of such organized and converted corporation or corporation reinsur-
ing the membership of such association. . . . ”
There is no indication from the statute that the association
is authorized to “reinsure” or convert one or more of its groups, clubs or
classes into a legal reserve company, yet continue in operation as a mutual
assessment association by retaining a different group, club or class. The
language of the statute clearly refers to the entire association and provides
a procedure which it is to follow as a unit in converting or reinsuring it-
self. There is no language in Article 14.61 which would indicate that the
association may convert or “reinsure” one of its lesser parts such as a
club, group, or class.
You have informed us that for a number of years it has been
the departmental construction of the Board of Insurance Commissioners
that Article 14.61 authorized a mutual assessment association to transfer
one of its groups, clubs, or classes to a legal reserve company, and re-
tain another group, club or class so as to maintain its existence as a mu-
tual assessment association. While departmental construction is many
times relied upon in determining the meaning of a sktute, such construc-
tion will not be followed or recognized where the particular statute involved
is not ambiguous or uncertain, nor will departmental construction be fol-
lowed or recognized where it is clearly erroneous or unsound, even though
it has been followed for many years. h4cCallum v. Assocfoted Retail Credit
Men, 41 S.W.Zd 45; Jones v. Marrs. 114 Tex. bL, m S . W . 570; 39 T ex. Jur.
rm;-
Article 14.61 is not ambiguous or uncertain, but it authorizes
in clear language an entire mutual assessment association to convert or -re-
insure” itself into a legal reserve insurance company, and does not contain
any language which would authorize a mutual assessment association to con-
vert or “reinsure’ one of its member groups, clubs, or classes into a legal
reserve insurance company.
Hon. John Osorio, page 4 (WW-72)
SUMh4AR Y
Article 14.61 of the Texas Insurance Code au-
thorizes an entire mutual assessment associa-
tion to convert or “reinsure” itself into a legal
reserve insurance company, but does not au-
thorize such association to “reinsure” or con-
vert one of its member clubs, groups or classes
into a legal reserve insurance company without
reinsuring or converting the entire association.
Very truly yours,
WILL WILSON
Attorney General
By p& & /&LA
Will D. Davis
Assistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
|
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539 F.2d 716
U. S.v.Crowell
No. 76-1119
United States Court of Appeals, Seventh Circuit
8/31/76
1
E.D.Ill.
AFFIRMED
|
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|
955 F.Supp. 413 (1997)
JONATHAN G., a minor, by his parents and natural guardians, MICHAEL G. and Sondra G., in their own right, Plaintiffs,
v.
LOWER MERION SCHOOL DISTRICT, Defendant.
No. 96-CV-2121.
United States District Court, E.D. Pennsylvania.
March 10, 1997.
*414 Philip R. Detwiler, Philip R. Detwiler & Assoc., P.C., Blue Bell, PA, for Plaintiffs.
Kenneth A. Roos, Michelle Haris Kichline, Wisler, Pearlstine, Talone, Craig, Garrity & Potash, L.L.P., Blue Bell, PA, for Defendant.
MEMORANDUM AND ORDER
JOYNER, District Judge.
INTRODUCTION
Plaintiffs Michael and Sondra G. have brought this action on their own behalf and that of their son Jonathan G., appealing the decision of the Pennsylvania Special Education Appeals Panel ("Appeals Panel" or "Panel"), under the Individuals with Disabilities Education Act ("IDEA"), as codified at 20 U.S.C. § 1400 et seq. (West 1990 & Supp. 1996).[1] Nevertheless, we have affirmed the decision of the Appeals Panel.
BACKGROUND
Jonathan G. is a student with learning disabilities as defined by IDEA, and is currently attending school in the Lower Merion School District ("Lower Merion"). In the 1993-1994 school year, while in fifth grade, Jonathan attended a self-contained learning support class.[2] In the subsequent year, he attended a resource room learning support program. Both placements were approved by his parents although they also purchased private educational services for him.
In April 1995, Lower Merion developed a Comprehensive Evaluation Report ("CER") and Notice of Recommended Assignment ("NORA"), as well as an Individualized Educational Program ("IEP") for Jonathan.[3] Based on these reports, Lower Merion proposed an educational placement for Jonathan in an inclusive setting with regular education students in seventh grade. Nevertheless, Mr. and Mrs. G. rejected the inclusion-based IEP that was proposed on April 20, 1995 and obtained independent evaluations during July and August 1995.
Since the disagreement between Lower Merion and Jonathan's parents was not resolved at a pre-hearing conference on September 7, 1995, due process hearings were held before a Special Education Hearing Officer. The Hearing Officer, in a decision dated December 31, 1995, directed the implementation of the School District's proposed IEP and denied the parents' request for reimbursement of their expenses for the additional educational services. Subsequently, the parents appealed the decision of the Hearing Officer and the Appeals Panel affirmed the Hearing Officer's decision in all respects. Plaintiffs then brought this action to challenge the Appeals Panel's decision, raising two primary issues for our consideration, namely, the adequacy of Jonathan's placement, and their entitlement to reimbursement for the additional educational services they obtained.[4] Nevertheless, after careful evaluation of the record presented to us, we affirm the decision of the Appeals Panel.
DISCUSSION
I. Standard of Review
In reviewing a claim under the IDEA, this court is required to "receive the records of the administrative proceedings, hear additional evidence at the request of a party" and base its decision on the "preponderance of the evidence." 20 U.S.C. § 1415(e)(2).[5] The *415 court is also required to give "due weight to the administrative proceedings," Board of Education v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982), although the court must consider the findings of the administrative tribunal carefully, and may accept or reject such findings. Susan N. v. Wilson School Dist., 70 F.3d 751, 758 (3d Cir.1995). Finally, the court must be careful not to substitute its judgment about proper education methods for that of the state educational authorities. Rowley, at 207, 102 S.Ct. at 3051.
II. Jonathan's Placement
Congress' intent in enacting IDEA was to ensure, to the maximum extent possible, that children with disabilities are educated with those who are not disabled. See 20 U.S.C. § 1412(5)(B). Indeed, IDEA provides that children with disabilities should only be removed from a regular education environment when the disability is such that education in that environment is not feasible, even with the use of supplementary aids and services. Id. This requirement is commonly referred to as IDEA's "mainstreaming requirement."
In interpreting IDEA's mainstreaming requirement, the Third Circuit has fashioned a two-pronged test to evaluate the propriety of a disabled child's inclusion in a regular classroom. According to this test, the court must determine (1) if the child can be educated satisfactorily in a regular classroom with supplemental aids and services and (2) whether the child's school has included the child in inclusive school programs to the maximum extent appropriate. Oberti v. Board of Education of Clementon, 995 F.2d 1204, 1215 (3d Cir.1993).
In many cases, the parents of a disabled child argue in favor of mainstreaming with the school district recommending a more restrictive placement. In this case, however, Lower Merion has proposed an inclusive placement but Jonathan's parents have indicated that they prefer that Jonathan receive self-contained instruction. The parents have therefore challenged the propriety of Jonathan's placement in an inclusive classroom setting.
Mr. and Mrs. G. have claimed that both the Hearing Officer and the Appeals Panel failed to appropriately evaluate plaintiffs' expert evidence. In particular, plaintiffs claim that the Hearing Officer did not evaluate the testimony and evidence of plaintiffs' experts at all, and that the Appeals Panel accepted only the evidence presented by Lower Merion, incorrectly assuming that it was obligated to affirm the Hearing Officer's decision. Plaintiffs further claim that had their evidence been properly evaluated, it would clearly have shown that Jonathan requires a self-contained placement. Plaintiffs also state that all of their evidence was based on objective test results while Lower Merion's evidence was largely based on anecdotal information, and is therefore, presumably, not as convincing as plaintiffs' evidence. Finally, plaintiffs claim that Lower Merion failed to diagnose the cause of Jonathan's impairment and that this failure shows that their proposed educational program cannot possibly be properly tailored to suit Jonathan's needs.
In response, Lower Merion claims that there is no evidence that either the Hearing Officer or the Appeals Panel failed to adequately consider plaintiffs' evidence. Furthermore, Lower Merion argues, the Hearing Officer and the Appeals Panel do not need to give detailed explanations of the reason(s) for their decision. In any event, Lower Merion asserts, the Hearing Officer and the Appeals Panel properly concluded that Lower Merion's witnesses, who saw Jonathan on a regular basis, were more credible and better able to assess Jonathan's needs than the parents' experts who observed Jonathan for limited periods of time.
Since the parties have raised issues concerning both the Hearing Officer's decision and that of the Appeals Panel, we will examine these proceedings in greater detail below.
A. The Hearing Officer's Decision
During the proceedings before the Hearing Officer, Lower Merion presented testimony from various teachers and administrators at Jonathan's school, including Betsy Granite, the school psychologist; Nikki LaRussa, Jonathan's learning support teacher; Diane Shannon, Jonathan's former reading instructor *416 and a reading specialist; Beth Weinstein, a speech and language pathologist that has worked with Jonathan since the second grade; and Beth Douglass a learning support teacher who co-taught Jonathan's language and math classes. The majority of the testimony from Lower Merion's witnesses focused on the fact that Jonathan had improved roughly one grade level per year and had received excellent grades. The witnesses also commented on the benefits that Jonathan would receive from being educated with non-disabled peers, namely that he would feel included and his self-esteem would increase, and he would further develop his social skills through this interaction.
The parents countered with the testimony of several persons who had evaluated Jonathan at their request, including, Dr. Slap-Shelton, a psychologist specializing in neuropsychology; Dr. H. Lee Brubaker, another psychologist; and Dr. Maxine Young an audiologist. These witnesses had evaluated Jonathan for varying degrees of time, and in their opinion, Jonathan had various physical impairments that required individualized attention, which could not be received in an inclusive classroom setting. For example, Dr. Young testified that in her opinion, Jonathan had auditory problems that impaired Jonathan's ability to hear and process information. According to Dr. Young, Jonathan needed an inclusive setting because a larger classroom environment, with the resultant noise of various students, would not allow Jonathan to adequately hear and process his teacher's verbal instruction.
In addition, Dr. Slap-Shelton diagnosed Jonathan as dyslexic, a diagnosis that apparently had not been made by Lower Merion at any point. Dr. Brubaker characterized Jonathan as very easily distracted and therefore more capable of functioning in a self-contained placement. In any event, both sides agreed that Jonathan was in need of significant help in reading, and that this problem affected all of his classwork.
Jonathan's parents also testified that he was very anxious to measure up to his peers, he often made comments indicating that he thought he was dumb because special accommodations were made for him in the classroom, and that he spent inordinate amounts of time completing his homework assignments and studying for tests. Furthermore, they testified that they almost always helped Jonathan with his homework and that he often was unclear as to what he was required to do, often because he was unable to properly record what the teacher had stated was to be done. According to the parents, Jonathan would then become frustrated and the situation was proving to be too extremely difficult. Mr. and Mrs. G. testified that they felt that the pressure of keeping up with his non-disabled peers was too much for Jonathan and that it would be alleviated if Jonathan had a self-contained placement.
Nevertheless, the Hearing Officer did not rule in favor of the plaintiffs. Instead, his decision focused on the fact that Jonathan's teachers had testified to the progress he has made in his classes and the excellent grades he has received, and he then concluded that Jonathan could be adequately educated in an inclusive setting. He also noted the concerns Jonathan's parents had about the excessive amount of time he spent completing homework assignments and his anxiety about fitting in with his classmates, and then the Hearing Officer ordered counseling that would focus on these two problems. In addition, he ordered that Jonathan's reading level be assessed and then reassessed after six months of instruction.
B. The Appeals Panel's Decision
The Appeals Panel first established the standard of review it would employ, stating that the Hearing Officer's findings were entitled to due deference, and that his credibility determinations were also entitled to deference unless the extrinsic evidence in the record or the entire record read as a whole compelled a contrary conclusion. See Carlisle Area School v. Scott P., 62 F.3d 520, 524 (3d Cir.1995). The Appeals Panel then noted IDEA's preference for mainstreaming and then delineated the two-pronged test outlined in Oberti, although it only considered the first prong of the Oberti test, namely, whether the child can be educated satisfactorily in a regular classroom with supplemental aids and services. The Panel then noted that the *417 first prong required it to consider three additional factors: (a) the steps the school has taken to include the child, (b) a comparison of the educational benefits of a regular versus a segregated class, and (c) the possible negative effects of inclusion on other children in the class. See Oberti, 995 F.2d at 1216.
With regard to the first factor, the Panel stated that Lower Merion had appropriately included Jonathan in regular classes by providing a special education teacher in addition to the regular education teacher, and had also provided small group reading and speech and language support. With regard to the second factor, the Panel noted the progress Jonathan had made in his classes, and with regard to the third factor, the Panel concluded that it was not at issue since no one had testified that Jonathan was disruptive or in any way negatively affecting the other students.
The Panel then observed that in spite of the parent's assertion that they had chosen to "waive" the IDEA's mainstreaming provisions, there was no such waiver under federal law.[6] Finally, the Panel dismissed the parent's contention that Lower Merion had failed to discern Jonathan's impairment, stating instead that the proposed IEP's goals were based on behaviors and skills observed by the multi-disciplinary team that is responsible for evaluating students who fall under the parameters of IDEA, and that the IEP adequately addressed Jonathan's problems.
C. Analysis
Initially, we note our agreement with the Appeals Panel's analysis of the factors delineated in Oberti and we do not find it necessary to repeat it. Nevertheless, we have made other observations of our own.
First, we note that the recommendations made by Drs. Young and Slap-Shelton, can be implemented in an inclusive placement. For example, Dr. Young recommends that Jonathan be given preferential seating close to the teacher and away from noisy children, that teachers speak slowly and distinctly, and that Jonathan be given additional time to complete assignments. With regard to Dr. Slap-Shelton, we observe that even though she recommends a segregated placement for Jonathan, she also included steps that Lower Merion could take should Jonathan remain in an inclusive program. In addition, she indicated while testifying that her recommendations were intended to enable Jonathan to function at an optimal level. Moreover, she admitted that it was possible for Jonathan, if he received all that she recommended, to achieve the same progress being educated in an inclusive setting as he could in a self-contained placement.
Second, we note that in arguing that Lower Merion's failure to diagnose Jonathan's dyslexia proves that the school district's IEP could not possibly be appropriate, the parents failed to address the fact that many of the recommendations in the IEP mirror those of the parents' witnesses. For example, Dr. Slap-Shelton's recommendations that Jonathan be allowed to use a calculator, that he receive extra time on tests, and that he receive graphic visual instruction were already recommended in the April 20, 1995 IEP. In addition, Dr. Young's recommendations that Jonathan receive preferential seating were also part of the IEP. We therefore cannot determine as a matter of law that Lower Merion's failure to test for and diagnose Jonathan's dyslexia is fatal.
Third, contrary to the parent's assertions, Lower Merion did perform testing on Jonathan, and the proposed IEP is not based solely on anecdotal information. For example, Ms. Granite testified that Jonathan was given several tests, including, the Weschler Individual Achievement Test, a Qualitative Reading Inventory and the Woodcock Johnson Reading Mastery Test. Accordingly, after viewing the evidence in its entirety, we *418 conclude that an inclusive placement is appropriate.
III. Parent's Entitlement to Reimbursement for Evaluations
Mr. and Mrs. G. request reimbursement by Lower Merion for the evaluations performed by their experts, as well as the costs incurred in obtaining additional educational support services. Nevertheless, we must deny plaintiffs' request because it is well-settled that reimbursement is only appropriate where the evaluations result in a change in the IEP, or there is a determination that the "IEP in question was inappropriate." See e.g. Bernardsville Board of Education v. J.H., 42 F.3d 149, 157 (3d Cir. 1994). Furthermore, there was no testimony to suggest that the additional tutoring that Jonathan received was absolutely necessary, or that he would not have made reasonable educational progress without it. Accordingly, we must deny the reimbursement requests.
Finally, we deny the request by plaintiffs' attorney for fees, since plaintiffs are not prevailing parties under IDEA. See 20 U.S.C. 1415(e)(4)(B).
CONCLUSION
In accordance with the discussion above, we find that the IEP proposed by Lower Merion on April 20, 1995 is appropriate for Jonathan G. We therefore decline to reimburse plaintiffs for the cost of the independent educational services and evaluations they purchased, and we also decline to award attorney's fees.
An appropriate Order follows.
ORDER
AND NOW, this 10th day of March, 1997, after considering the entire record in this case, it is hereby ORDERED that the decision of the Pennsylvania Education Appeals Panel is AFFIRMED.
NOTES
[1] IDEA provides that state agencies which receive assistance shall establish procedures to ensure that learning disabled children receive adequate education. 20 U.S.C. § 1415(b). The parents are entitled to a due process hearing, see id. at § 1415(b)(2), which in Pennsylvania occurs before a Hearing Officer, and then an appeal to an educational agency, see id. at 1415(c), which in Pennsylvania is the Special Education Appeals Panel.
[2] Based on the discussion in the transcript and the parties' briefing, it seems that a self-contained learning support class can be best described as one in which the student is educated with other children in need of special education.
[3] The IDEA provides that states shall ensure that there is an individualized annual evaluation of the programs for disabled children. 20 U.S.C. § 1413(a)(11).
[4] The parents do not challenge Lower Merion's compliance with the procedures in the IDEA and therefore we do not discuss that issue.
[5] The parties have agreed to try this matter based on the record created before the Hearing Officer.
[6] The parents have chosen to pursue this argument on appeal before this court, but they fail to cite, and we cannot find, even one case that suggests that IDEA's mainstreaming requirement is intended only for the benefit of a child's parents or guardian. To the contrary, the test delineated in Oberti suggests otherwise, and although the parents argue that this test is only applicable when the parents are in favor of mainstreaming and the school district favors a more restrictive placement, nothing in Oberti suggests that its holding was intended to be limited in this manner.
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342 S.W.3d 528 (2011)
Rickie Dawson YORK, Appellant,
v.
The STATE of Texas.
No. PD-0088-10.
Court of Criminal Appeals of Texas.
June 29, 2011.
*530 Austin Reeve Jackson, Tyler, for Appellant.
Michael J. West, Asst. D.A., Tyler, Lisa C. McMinn, State's Attorney, Austin, for State.
KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, HERVEY, and ALCALA, JJ., joined.
We must resolve two issues in this case. First, did a police officer have reasonable suspicion to detain appellant, who was asleep in a car, with the lights on and the engine running, parked on a sidewalk in front of a gas station during the early morning hours? Second, does the doctrine of collateral estoppel require the suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts? The answer to the first question is relatively straightforward. But to answer the second question, we must deconstruct earlier opinions from this Court and re-analyze the question from scratch.
I. BACKGROUND
A. Criminal Investigation
Leland Shawn Johnson was a patrol officer for the City of Bullard, in Smith County. On his way to Tyler[1] at around 3:00 *531 a.m. on October 16, 2007, he passed an Exxon gas station that was outside the city limits of Bullard but still in Smith County.
Officer Johnson was personally aware that this particular Exxon station had been burglarized at least once during the previous two years, and he had been advised by deputies that other burglaries had occurred there. The Exxon station was closed for the night, but a car was parked partially on the sidewalk immediately in front of the Exxon store, with the headlights shining on the store window. The headlights were shining into the business. From Officer Johnson's vantage point on the road, the car appeared to be almost touching the front door glass. The light from the headlights was being reflected back into the vehicle, and the car did not appear to be occupied. Officer Johnson parked behind the vehicle, turned his headlights off, and approached on foot.
He saw that the car's engine was running, the driver's rear window was down, and appellant was in the car asleep with the seat laid back. Officer Johnson did not smell any alcohol, nor did he see any items in the car that might have been taken in a burglary. He watched appellant for a few minutes and looked around for weapons before waking appellant up. Appellant expressed surprise upon being awakened.
Officer Johnson asked appellant for identification, and appellant said that he had left it at home. Officer Johnson then asked appellant to step outside the vehicle. In the ensuing conversation, appellant expressed confusion regarding where he was, saying that he was in the Chapel Hill area, when he was not even close to there. Officer Johnson then asked if appellant had any weapons. Appellant said that he did not, and he gave Officer Johnson consent to search his person. The search revealed that appellant possessed marijuana and methamphetamine, and he was arrested. Appellant gave Officer Johnson a false name after the arrest.[2]
B. First Prosecution: Failure to Identify
The criminal district attorney's office first prosecuted appellant in a county court at law for the misdemeanor offense of failure to identify.[3] The case was tried to a jury, with the sole evidence being Officer Johnson's testimony. In addition to facts outlined above, Officer Johnson testified during cross-examination about whether he had seen appellant committing certain offenses:
Q. Would you say that in those couple of minutes [of watching appellant sleeping], you were able to determine that there was not a burglary at that location going on?
A. Well, I couldn't say that there was one occurring at that time, yes.
Q. Okay. And you didn't see any kind of property or anything in the car, did you?
A. Not from standing outside, no.
*532 Q. Nothing that would give you reason to believe that he had burglarized that store?
A. No.
* * *
Q. Officer, at that time when you asked for consent to search and continued your investigation, Mr. York hadn't committed any type of felony offense within your view at that time, had he?
A. No, he had not.
Q. He had not committed any type of offense that would be considered a breach of the peace; is that correct?
A. No, he had not.
Q. He hadn't committed any type of public order crime, such as a riot or something to that effect?
A. No, he had not.
Q. He had not committed, in your view, an offense under Chapter 49 of the Penal Code, which is DWI, intoxication manslaughter, that type of offense. He had not committed any, correct?
A. No, he had not.
Officer Johnson also testified that a video of the incident existed, but he did not have it.
Outside the presence of the jury, the parties and the county court at law judge discussed two defense motions: a motion for directed verdict of acquittal and a motion to suppress evidence. Both motions were based on the idea that the State failed to prove that appellant's arrest or detention was lawful. The defense first raised these motions after the State's direct examination, but the judge denied the motions at that time. After defense counsel's cross-examination, the parties and the judge resumed discussion of these issues, which included remarks by the judge regarding the officer being outside of his jurisdiction. Ultimately, the judge granted the motion to suppress. Before bringing in the jury, the judge stated: "Well, the court will enter a directed verdict of acquittal, based on the fact there is no evidence to go before the jury."
After the jurors were brought back into the courtroom, the judge explained to them:
Basically, what I did was grant the defendant's motion to suppress. I'm not necessarily finding the officer did anything wrong. He was outside of his jurisdiction, stopped to investigate what was going on. I don't think there is anything wrong with that. But with him being outside his jurisdiction and him not testifying to any articulable facts as to how he thinks an offense might have been committed, I think the law requires me to grant the motion to suppress, which means y'all have no evidence in front of you.
* * *
[Addressing appellant:] This officer did exactly what he was supposed to do. You're getting away on a technicality.
Expecting the State to appeal this decision because of his other cases, the judge told defense counsel that he could draft the findings of fact and conclusions of law. No written findings of fact and conclusions of law are contained in the record before us.
C. Second Prosecution: Possession of Methamphetamine
The criminal district attorney's office later prosecuted appellant in district court for possession of methamphetamine. The parties litigated the legality of Officer Johnson's conduct during a pretrial suppression hearing. At this hearing, the defense introduced the record of trial proceedings from the failure-to-identify prosecution. Officer Johnson also testified, and a video of the incident was played for the court. In addition to the *533 facts outlined previously, Officer Johnson testified that, as he approached appellant's car, he believed that there was a "[p]ossible burglary in progress." Once he found appellant asleep in the car, Officer Johnson suspected possible offenses of burglary, DWI, public intoxication, or trespass. With respect to the testimony outlined in part IB of this opinion, Officer Johnson also explained that his testimony in the failure-to-identify prosecution reflected that he did not know particular offenses had been committed but that he was conducting an investigation.
Before the district judge, defense counsel argued that Officer Johnson lacked reasonable suspicion or probable cause to detain appellant, that Officer Johnson's investigation was prohibited under Article 14.03(d)[4] because he was outside of his jurisdiction, and that suppression should be granted under the doctrines of res judicata[5] and collateral estoppel.
With respect to the Article 14.03(d) claim, defense counsel contended that Officer Johnson did not observe any of the offenses for which Article 14.03(d) allows an out-of-jurisdiction officer to perform an arrest.
With respect to the collateral-estoppel question, defense counsel first explained that the lawfulness of the arrest or detention is an element of the offense of failure to identify.[6] He further argued, based upon Fifth Circuit cases, that collateral estoppel could involve two different scenarios: (1) barring the prosecution itself or (2) barring the relitigation of evidentiary facts.[7] Defense counsel contended that appellant's case fell within the second scenario. He contended that Murphy v. State,[8] upon which the prosecutors heavily relied, involved only the first scenario.
Throughout the hearing, defense counsel referred to the fact that jeopardy had attached in the first prosecution when the suppression issue was decided. He also contended that the State had a full and fair opportunity to litigate the issue because (1) the State could have put into evidence, in the first prosecution, the additional evidence that was presented in the second prosecution, and (2) the State could have appealed the trial court's ruling in the first prosecution.
Finding that Officer Johnson had adequate justification to conduct an investigative detention, and relying upon Murphy to dispose of appellant's collateral-estoppel argument, the district judge denied the motion to suppress. Appellant pled guilty, and he pled true to two prior enhancement allegations. Punishment was tried to the jury, and the jury sentenced him to sixty years in prison.
D. Appeal
Appellant raised his suppression issues on appeal.[9] With respect to the collateral-estoppel *534 contention, he argued that the trial court in the failure-to-identify prosecution found two facts that should have been given preclusive effect in the methamphetamine prosecution: (1) that the officer was outside his jurisdiction, and (2) that none of the exceptions in Article 14.03 applied. Appellant claimed that Murphy could be distinguished on the basis that it "centered on the legal conclusion of a lack of probable cause" while appellant's case turns upon prior factual determinations made by the trial court in the failure-to-identify prosecution.
The court of appeals observed that Article 14.03(d) allows an outside-of-jurisdiction officer to detain a person for an offense committed in the officer's presence if the offense is a felony or a violation of Chapter 42 of the Penal Code.[10] The court concluded that Officer Johnson had reasonable suspicion to believe that appellant was committing a burglary.[11] The court also concluded that appellant parked his vehicle on a sidewalk in violation of Penal Code § 42.03.[12]
Relying upon our decision in Murphy, the court of appeals held that collateral estoppel applies only to a previously litigated fact that constitutes an essential element of the offense in the second prosecution.[13] Consequently, the court concluded that principles of collateral estoppel did not preclude the State from proving the legality of appellant's detention and arrest because that issue did not constitute an element of the offense of possession of methamphetamine.[14]
II. ANALYSIS
A. Legality of Officer Johnson's Conduct
1. Appellant's Contentions
In his first ground for review, appellant complains that Officer Johnson's discovery of the methamphetamine was the product of an illegal detention. Appellant argues that a detention was created by Officer Johnson's act of blocking in appellant's car, his request that appellant exit the vehicle, and appellant's compliance with that request. Appellant further argues that Officer Johnson was outside of his jurisdiction, and as a result, his authority to detain depended upon reasonable suspicion to believe that an offense had been committed in his presence.[15] Appellant contends that Officer Johnson did not have reasonable suspicion to believe that he had observed appellant committing burglary, DWI, public intoxication, obstruction of a sidewalk, or criminal trespass.
2. Article 14.03
We will assume without deciding that appellant is correct that an investigative detention began when he complied with the officer's request to exit his vehicle.[16] And we will assume, without deciding, *535 that the term "arrest" in the relevant provisions of Article 14.03 includes investigative detentions.[17]
As a city police officer, Officer Johnson was a peace officer as defined by Article 2.12(3).[18] The controlling provision with respect to that type of peace officer is Article 14.03(g)(2), which provides:
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer described in this subdivision who is outside of that officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.[19]
Officer Johnson had state-wide authority to arrest for any non-traffic offense committed within his presence or view. Moreover, within Smith Countywhere the City of Bullard is locatedOfficer Johnson's authority to arrest for offenses committed within his presence or view extended to traffic offenses as well.[20] Consequently, because the Exxon station was located in Smith County, Officer Johnson had the authority to arrest (and thus conduct an investigative detention) for any offense committed within his presence or *536 view.[21] The question, then, is whether Officer Johnson had the requisite level of suspicion that such an offense was being or had been committed.
Investigative detentions are generally governed by the reasonable suspicion standard.[22] Under the Fourth Amendment, "reasonable suspicion" exists when an officer is aware of "specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity."[23] This standard is objective; the subjective intent of the officer conducting the detention is irrelevant.[24] In addition, reasonable suspicion does not depend on the "most likely explanation" for a suspect's conduct, and reasonable suspicion can exist even if the conduct is "as consistent with innocent activity as with criminal activity."[25] The standard is logically the same in an article 14.03(g) context, except that the officer's reasonable suspicion must be limited to whether the suspect is committing, or had committed, an offense in the officer's presence or view.[26]
3. Public Intoxication
A person commits the offense of public intoxication if he "appears in a public place while intoxicated to the degree that the person may endanger the person or another."[27] "Public place" means "any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, *537 and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops."[28] A gas station is a shop, and it and the area around it are places to which the public has access.[29] We hold that the parking and sidewalk area outside the Exxon station was a public place.
The next question is whether Officer Johnson had reasonable suspicion to believe that appellant was intoxicated to the degree that he might endanger himself or another. Before appellant was awakened, Officer Johnson knew that: (1) it was around 3:00 a.m., (2) appellant was asleep in his car, (3) the car's engine was running, (4) the car was parked partially on the sidewalk very near the door to the store, and (5) the headlights were on.
The circumstances in the present case were sufficient to give rise to a reasonable suspicion that would permit an investigative detention. From the circumstances present here, Officer Johnson could reasonably suspect that appellant was intoxicated. And with the engine running, an intoxicated driver might have awakened, and in his stupor, driven into the store. Or he might have returned to the road, where he would pose a threat to others who were traveling.[30] It would be reasonable to suspect that appellant posed a danger to himself or others.[31]
Although Officer Johnson did not smell alcohol as he approached the car, that fact did not cause reasonable suspicion to dissipate, in part because appellant could still have been intoxicated by drugs.[32] Nothing *538 else occurred that would have negated reasonable suspicion before Officer Johnson found the drugs on appellant's person. To the contrary, the fact that appellant did not have his driver's license with him and was confused about his location served to reinforce a reasonable suspicion of intoxication.
4. Burglary
Even before he parked behind appellant's car, there was reasonable suspicion to believe that a burglary was occurring. Officer Johnson knew that the Exxon station was closed, that the station had been burglarized before, that it was about 3:00 a.m., that the headlights of appellant's car were shining into the store, and that appellant was parked too close to the store door (on the sidewalk). These facts were sufficient for Officer Johnson to reasonably suspect that a burglary might be occurring and to justify an investigation. When the officer approached the car on foot, he learned that the engine was running, which would be consistent with it being a getaway car.
Appellant contends that, even if Officer Johnson initially had reasonable suspicion to investigate a possible burglary, that suspicion was later dispelled, and once the suspicion was dispelled, he should have ended the detention. But even if appellant's sleeping and subsequent events had dispelled any reasonable suspicion that appellant was participating in a burglary, by that time there was reasonable suspicion that he was guilty of public intoxication, as discussed above. We overrule appellant's first ground for review.
B. Collateral Estoppel[33]
1. Murphy
The courts below relied upon our opinion in Murphy to resolve appellant's collateral-estoppel claim. For reasons that will become apparent, we shall examine the line of cases that led up to our opinion in Murphy and reexamine our holding in that case.
Murphy was stopped for speeding, and the stop resulted in the discovery of drugs and drug paraphernalia.[34] Murphy was first prosecuted in a justice-of-the-peace court for possession of drug paraphernalia.[35] He was acquitted during a bench trial at which the State failed to produce evidence of speeding, and as a result, failed to establish the validity of the stop.[36] He was later prosecuted in district court for possession of a controlled substance.[37] Alleging collateral estoppel, Murphy filed a motion to suppress and a motion to dismiss the indictment.[38] These motions were denied, and he was ultimately convicted.[39] We characterized Murphy's claim before the court of appeals as being whether the *539 legality of the detention was litigated in the justice court.[40]
In Murphy, we held that the collateral-estoppel inquiry involved a two-part analysis: (1) determining exactly what facts were necessarily decided in the first proceeding, and (2) determining whether those necessarily decided facts constitute essential elements of the offense in the second trial.[41] We said that this analysis applied "[t]o determine whether collateral estoppel bars a subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts."[42]
To support this proposition, we cited to our earlier decision in Ex parte Taylor and to the Fifth Circuit case of Neal v. Cain.[43] We also provided a "see also" citation to United States v. Larkin.[44] Relying upon Neaves v. State,[45] the concurring opinion in Murphy explained that probable cause to stop the defendant was not the same issue as guilt of possessing the controlled substance.[46]
At various stages of the proceedings, appellant has articulated three bases for distinguishing this case from Murphy: (1) the present case involves specific fact findings, while Murphy involved only legal conclusions, (2) the validity of the police officer's conduct was an element of the offense in appellant's earlier prosecution, but that was not true of the defendant in Murphy, and (3) appellant claims merely that certain evidentiary facts cannot be relitigated, while Murphy dealt with whether the earlier acquittal necessarily barred the entire prosecution in the subsequent case.
We need not address appellant's first articulated basis for distinguishing Murphythat the present case involves factual rather than legal issues. We will assume, without deciding, that appellant has satisfied any requirement that the prior prosecution resolved a question of fact, and we otherwise decline to address the matter.[47]
*540 The second basis presents a real difference between the present case and Murphy. The validity of Murphy's detention was not an element of the offense in his first prosecution. But the validity of appellant's detention was an element of the offense in appellant's first prosecution.[48]
Under the analysis articulated in Murphy, all that matters is an issue's status in the subsequent prosecution. The fact that an issue may have been an "essential element" in the earlier prosecution does not appear to be relevant. Nevertheless, the Murphy court was not presented with a situation in which an issue was an essential element in the earlier prosecution; whether the Murphy analysis governs such a case depends upon the rationale underlying Murphy's holding.
That observation leads us to the third proposed basis for distinguishing Murphy: that Murphy dealt only with a claim that the entire second prosecution was barred. Appellant does not claim that collateral estoppel bars the subsequent prosecution in his case; his claim is only that collateral estoppel resolves certain evidentiary facts in his favor and thereby requires the granting of his motion to suppress.[49]
It is understandable that appellant would think that Murphy dealt with a bar to prosecution rather than a bar to the relitigation of certain facts. Murphy had filed both a motion to dismiss and a motion to suppress, and our opinion did not specifically focus on which of those motions we were concerned with.[50] A review of the court of appeals's opinion in Murphy makes it clear, however, that the defendant was basing his appeal solely on the motion to suppress.[51]Murphy concerned the relitigation of certain facts.
But appellant's misperception is also understandable because the Fifth Circuit case relied upon in Murphy deals with a bar to prosecution rather than a bar to relitigation of certain issues. In Neal, the Fifth Circuit said, "In determining whether collateral estoppel bars a subsequent prosecution, as Neal contends it does here, we engage in a two-step analysis," with the second step being to determine whether the issues in question constitute essential elements of the offense in the second trial.[52] So Neal stood only for the proposition that an issue must involve an essential element in the second prosecution in order for that issue to be used as a basis for barring prosecution altogether.[53]Neal did not address what requirements apply when a defendant claims only that the State may not relitigate certain underlying facts. We must look elsewhere to decide whether the essential-element-in-the-subsequent-prosecution *541 requirement applies when the defendant seeks only to bar the proof of certain facts.
Appellant's attempted distinction also conflicts with Murphy's own pronouncement that its analysis applies to determine whether collateral estoppel "bars a subsequent prosecution or permits the prosecution but bars relitigation of certain specific facts."[54]
As explained above, Murphy relied on Taylor for this proposition. Taylor did say that the essential-element-in-the-subsequent-prosecution requirement applies to a claim that collateral estoppel "bars the relitigation of certain facts."[55] But this language was itself dicta, because Taylor involved a claim that the prosecution was entirely barred.[56] The Taylor court relied upon Neal and Dedrick v. State[57] as authority for the proposition.[58] And Dedrick quoted from United States v. Mock.[59] None of these cases support the dicta in Taylor.[60]
Neal has already been discussed. Dedrick's quotation from Mock is actually contrary to Taylor's dicta. We quoted Mock as saying that facts established in the first prosecution may not be relitigated in a second prosecution "either as ultimate or as evidentiary facts."[61] In support of this statement, Mock cited the Fifth Circuit decisions in Wingate and Blackburn,[62] two cases that were relied upon by defense counsel at trial in the present case.[63]
In Wingate, the State introduced extraneous offenses of which the defendant had previously been acquitted.[64] The court construed the collateral-estoppel protection articulated in Ashe, in which the Supreme Court described collateral estoppel as the rule that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."[65] The Wingate court *542 stated that it did not perceive any meaningful difference, for double-jeopardy purposes, between prohibiting relitigation of an issue that "is one of `ultimate' fact or merely an `evidentiary' fact in the second prosecution."[66] The Fifth Circuit held that, although the prosecution itself was not barred, because no part of the charged offense had been previously litigated, the State was barred from introducing evidence of the extraneous offenses for which the defendant had been acquitted.[67] In Blackburn, the Fifth Circuit explained that, in Wingate, "this Circuit significantly expanded the Ashe holding."[68] After Wingate, the court said, "there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited."[69]
Finally, with respect to Murphy's reliance upon Larkin for the proposition that "[w]hile there is no bright-line or black-letter law that can resolve the issue of when collateral estoppel applies, collateral estoppel is inapplicable in this case,"[70] an examination of Larkin reveals that it supports only the first half of this statement. The Larkin court referred to "arcane principles of double jeopardy and collateral estoppel" that are "not susceptible of bright-letter law or black-letter law,"[71] but the case did not involve the situation confronted in Murphy or that we confront today.[72]
Neaves provides no real support for the holding in Murphy either. In Neaves, the defendant obtained a negative finding in an administrative license-suspension hearing "upon the question whether probable cause existed that [the defendant] had been driving while intoxicated."[73] In his subsequent DWI prosecution, the defendant contended that the finding in the license-suspension proceeding "estopped the State from attempting to establish in the instant trial that [the defendant] had been driving while intoxicated."[74] We pointed out that the parties assumed that the ultimate facts in the two proceedings were the same: that probable cause to believe DWI had been committed (the ultimate fact in the license-suspension hearing) was the same ultimate fact as the actual commission of DWI (the ultimate fact in the criminal trial).[75] We held that this assumption was incorrect.[76] Because the defendant argued that the State was barred completely from proving the commission of DWI, this Court never had occasion to address whether the prior finding in the administrative license-suspension hearing could have been used to bar relitigation of issues raised in a motion to suppress.[77]
*543 Furthermore, since our holding in Murphy, the Supreme Court has cited § 27 of the Restatement (Second) of Judgments in two recent double-jeopardy/collateral-estoppel cases.[78] As we will explain in more detail later, comment j of that portion of the Restatement challenges the notion that collateral estoppel involves only the ultimate issues in a case.[79] For these various reasons, we will reexamine the question of when collateral estoppel bars relitigation of certain facts in a subsequent prosecution.[80]
3. Ultimate Issue in the First Prosecution?
As we have already noted, the validity of a detention or arrest was an element of the failure-to-identify offense with which appellant was previously charged.[81] As an element, it must be proven beyond a reasonable doubt.[82] In a motion to suppress setting, however, the propriety of an arrest or detention need not be proven beyond a reasonable doubt.[83] We do not often say what standard applies in a motion-to-suppress setting, and we are unaware of any cases explicitly stating the State's standard of proof in establishing reasonable suspicion,[84] but we conclude that the appropriate standard is the one that applies to most[85] constitutional suppression issues: preponderance of the evidence.[86]
In Dowling v. United States, the Supreme Court explained that collateral estoppel does not bar relitigation of an issue resolved by a prior acquittal when, in the subsequent proceeding, the issue is *544 governed by a lower standard of proof.[87] This holding defeats any attempt in the present case to use the detention issue's elemental status in the first prosecution as a basis for collateral estoppel. The State's failure to prove the validity of appellant's arrest or detention beyond a reasonable doubt (as an element of the failure-to-identify offense) does not result in a collateral-estoppel bar to determining the validity of that arrest or detention by a preponderance of the evidence in a subsequent suppression hearing.[88] To prevail on his collateral-estoppel claim, then, appellant must rely upon the detention issue's status in the earlier prosecution as a suppression issue, governed by the preponderance of the evidence standard.
Complicating such reliance is the fact that the court in the failure-to-identify prosecution erred in addressing the detention issue as a suppression issue. In Woods v. State, we held that, when the validity of an arrest or detention is an element of the charged offense, litigating the validity of the seizure as a suppression issue is inappropriate.[89] Instead, the issue should simply be litigated as part of the State's case at trial.[90]
And Woods is not satisfied by litigating the validity of a seizure during the trial, if it is still litigated as a suppression issue. The trial judge's role with respect to elements of the offense and suppression issues differs significantly when the trial judge is not the finder of fact on the question of guilt. With respect to suppression issues, the trial judge is always the "sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony."[91] And with respect to such issues, he can draw rational inferences in favor of either party.[92] By contrast, when the trial judge is not the finder of fact on the question of guilt, he can direct a verdict in the defendant's favor only if "after viewing the evidence in the light most favorable to the prosecution," he cannot conclude that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."[93]
Appellant's trial in the failure-to-identify case was to a jury. Even if we assume that the trial judge in that case believed all *545 of Officer Johnson's testimony (because he commented that Officer Johnson had done nothing wrong), the judge could still have drawn inferences against the State in resolving the motion to suppress. In doing so, he would have infringed on the jury's role in resolving the question of guilt.[94]
It is axiomatic that even an erroneous acquittal counts as an acquittal for double-jeopardy purposes,[95] and one Supreme Court case suggests this is true even in the context of collateral estoppel.[96] Nevertheless, a distinction could possibly be made between giving preclusive effect to ultimate issues resolved by an acquittal that was wrongly procured and giving preclusive effect to an evidentiary issue that should never have been litigated in the first place. Assuming, without deciding, that such a distinction does not, by itself, defeat appellant's claim in the present case,[97] we consider the continuing validity of the proposition that collateral estoppel applies only when the issue in question constitutes an essential element in the subsequent prosecution.
4. Ultimate Issue in the Second Prosecution?
a. Ashe
The Supreme Court's formulation of collateral estoppel in Ashe, by including a reference to "an issue of ultimate fact," in itself suggests that the issue upon which preclusion is sought should be an ultimate issue in at least one (and perhaps both) of the prosecutions. In Ashe, the issue (identity) was "ultimate" in both prosecutions. *546 The defendant was prosecuted for robbing one of six individuals at a poker game and was acquitted.[98] The State then prosecuted the defendant for robbing a second individual at the game.[99] But the only rationally conceivable issue in dispute in the first prosecution was whether the defendant was one of the robbers.[100] Because the jury, by its verdict, found that ultimate issue in the defendant's favor, collateral estoppel barred the subsequent prosecution for robbing a second individual at that same game.[101]
The Ashe court also explained that collateral estoppel, though originally developed in civil litigation, had been a rule in criminal cases for over fifty years.[102] Notably, the Supreme Court suggested that collateral estoppel might be at least as protective in criminal cases as in civil cases when it quoted Justice Holmes's statement that, "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence are less than those that protect from a liability in debt."[103] We must keep in mind, however, that this statement was quoted in connection with the Ashe formulation of the collateral-estoppel rule.
b. The Ashe Approach
The formulation articulated in Ashe had been applied previously in Yates v. United States[104] to preclude the application of collateral estoppel to issues that were not ultimate in nature. In Yates, the defendants were convicted of conspiring to advocate the overthrow of the United States government by force and violence.[105] One of the defendants had prevailed at an earlier denaturalization proceeding, which may have involved the litigation of some facts that were also relevant to the criminal proceeding.[106] Among other things, this defendant claimed that the determinations made in the denaturalization case were relevant to the criminal proceeding, "even if they do not conclude it, and hence that [the defendant] should be entitled to an instruction giving those determinations such partial conclusive effect as they might warrant."[107] The Supreme Court held that "the doctrine of collateral estoppel does not establish any such concept of `conclusive evidence' as that contended for" by the defendant.[108] "The normal rule," the Supreme Court explained, "is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or `mediate' facts are concerned, the doctrine of collateral estoppel is inoperative."[109] In support of this "normal rule," the Supreme Court cited The Evergreens v. Nunan[110] and comment p of § 68 of the original Restatement of Judgments.[111]
*547 Comment p ruled out the use of evidentiary facts in the civil collateral-estoppel context: "Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in issue, but not to the determination of merely evidentiary facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary facts."[112]
In The Evergreens, Judge Learned Hand addressed, in the civil context, the question of whether a previously litigated fact must be an ultimate issue in the first or second lawsuits in order to be given preclusive effect under the doctrine of collateral estoppel.[113] He observed that there was a conflict in authority regarding whether an issue must be an ultimate fact in the first suit.[114] He was aware of no case, however, that allowed facts decided in the first suit (ultimate or not) to be used as mere "mediate data" in the second.[115] Confronted with a dearth of authority, and being free to decide, the court did "not hesitate to hold" that, even assuming "mediate data" decided in the first suit could be used to establish "ultimate" facts in the second, no fact decided in the first suit whether "ultimate" or "mediate"could conclusively establish anything other than an "ultimate" fact in the second suit.[116]
c. The Fifth Circuit and Other Jurisdictions
As discussed earlier in this opinion, the Fifth Circuitin the Wingate line of casesdeparted from the Ashe approach and took an expansive view of the collateral-estoppel protection in criminal prosecutions. But the Fifth Circuit conducted an about-face in 1994 in Wright v. Whitley.[117] In that case, the defendant was acquitted of two weapon-possession charges, and he was subsequently charged with murder.[118] The defendant sought, unsuccessfully, to use the fact of those earlier acquittals to bar certain testimony regarding his possession of a rifle.[119] Rejecting the defendant's claim, the Fifth Circuit decided that Wingate's "broader reading of Ashe" applying collateral estoppel to the relitigation of evidentiary facts"has not been accepted by the Supreme Court."[120] Instead, the Fifth Circuit found that the Supreme Court's decision in Dowling "teaches that the Ashe holding only bars relitigation of a previously rejected factual allegation where that fact is an ultimate issue in the subsequent case."[121]
In Brackett, the Fifth Circuit retreated somewhat from this expansive interpretation of Dowlingcharacterizing Dowling more narrowly as a burden-of-proof case.[122] The Fifth Circuit believed that Dowling's burden-of-proof holding effectively limited the doctrine of collateral estoppel *548 to the prosecution's attempt to relitigate an essential element of an offense because "only ultimate facts must be established beyond a reasonable doubt."[123] The Fifth Circuit found it "difficult to conceive of a case in which collateral estoppel would bar admission or argumentation of facts necessarily decided in the first trial, without completely barring the subsequent prosecution," but it stated, "[W]e have no occasion to consider whether Dowling has overruled this line of decisions, and we leave that question for another day."[124]
There is a split among the federal circuits and various other jurisdictions on whether collateral estoppel can ever apply to facts that are merely evidentiary in the second prosecution.[125]
d. The Restatement (Second)
The Restatement (Second) of Judgments has taken a dramatically different position from the original Restatement regarding the application of collateral estoppel to evidentiary facts. Comment j of § 27 eschews any distinction between "evidentiary" and "ultimate" facts and takes the position that the appropriate question "is whether the issue was actually recognized by the parties as important and by the trier as necessary to the first judgment."[126] In support of this position, the comment makes two arguments: (1) that the "line between ultimate facts and evidentiary facts is often impossible to draw," and (2) that, "great effort may have been expended by both parties" in litigating the *549 issue "and it may well have been regarded as the key issue in dispute."[127]
A number of jurisdictions have adopted comment j in civil cases.[128] Although the doctrine of collateral estoppel was originally developed in civil cases, one question is whether collateral estoppel in the criminal law must match any evolution in the civil law or whether developments in the civil law have gone further than is appropriate for criminal cases. The Restatement (Second) of Judgments is by its terms limited to "the preclusive effects of judgments in civil actions" and so takes no position on whether its principles apply in criminal cases.[129] A perusal of the authorities discussed above reveals that New Hampshire and Iowa have retained the Ashe approach in criminal cases despite being receptive in civil cases to the "new" approach embodied in comment j.[130]
The Supreme Court has cited § 27 of the Restatement (Second) of Judgments in two recent double-jeopardy cases, but it has not cited to comment j or expressly addressed the issue currently before us.[131] Though it has characterized as "more descriptive," § 27's use of the term "issue preclusion" in place of "collateral estoppel,"[132] the Court nevertheless continues to refer to the "ultimate fact" language found in Ashe.[133]
In Standefer v. United States, the Supreme Court recognized that the doctrine of collateral estoppel may carry limitations in criminal cases that do not exist in civil cases.[134] Standefer was charged as a party to official misconduct.[135] The official in question was also charged but was acquitted on some of the counts.[136] Standefer wished to use that acquittal to establish that he could not have aided the commission of those counts.[137] In declining to permit the nonmutual use of collateral estoppel, the Supreme Court explained that "the Government is often without the kind of `full and fair opportunity to litigate' that is a prerequisite of estoppel."[138] The Court pointed to several aspects of criminal law that make this so:
[T]he prosecution's discovery rights in criminal cases are limited, both by rules *550 of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt ...; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence ...; and it cannot secure appellate review where a defendant has been acquitted.[139]
The Court also noted rules of evidence that are unique to criminal law that might make evidence inadmissible against one defendant that is admissible against another, and the Court pointed to the "important federal interest in the enforcement of the criminal law."[140] And though the concern about the admissibility of evidence could possibly be met on a case-by-case basis by conducting a pretrial hearing to determine whether a trial court's evidentiary ruling had deprived the government of a chance to present its case the first time around, that process "could prove protracted and burdensome."[141]
The ability of a party to fully and fairly litigate the claim in question is also a part of the Restatement (Second) approach. Under § 28, the Restatement (Second) outlines an exception to the general rule of issue preclusion, when "[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action."[142] The prosecution cannot obtain review of an acquittal,[143] and so a precondition for applying the Restatement (Second) scheme to criminal cases seems to be absent.[144] It is true that the absence of appellate review is not always "an essential predicate of estoppel"[145] (see Ashe, for example), but the collateral-estoppel doctrine is "premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct," and in the absence of appellate review, such confidence is often unwarranted.[146] Thus, the absence of review counsels in favor of retaining the narrower Ashe approach to collateral estoppel in criminal cases.
The State can obtain appellate review of a trial court's ruling on a motion to suppress if the ruling is made before trial.[147] But, under Woods, the trial court in the present case was not authorized to rule upon the legality of the detention before trial. Even in the more common case in which such authority exists, a trial court is not required to rule on a motion to *551 suppress before trial,[148] and sometimes a trial court may find it useful to carry the motion along with the trial on the merits.[149]
e. Interests underlying Double Jeopardy and Criminal Cases
But even when a motion to suppress is granted pretrial, the State has the option to simply dismiss the case, and in doing so, prevent the attachment of jeopardy to the first prosecution.[150] If jeopardy has not attached, then no aspect of double jeopardy, including its collateral-estoppel component, is implicated.[151] This fact suggests that suppression issues are simply not the type of issues that implicate double jeopardy in the first place. When a defendant is placed in jeopardy, he is placed in jeopardy for the elements of the offense, not for mere evidentiary matters. Such a view is consistent with the Supreme Court's rejection of the Grady v. Corbin[152] same-conduct standard, and its reaffirmation of the importance of the elements of the offense in the double-jeopardy context.[153]
Perhaps for this reason, the Supreme Court has never abandoned Ashe's "ultimate fact" language. For jeopardy to attach to an issue in the first prosecution, the issue must be "ultimate" rather than merely evidentiary. If jeopardy does not attach to a particular issue in the first prosecution, then that issue cannot become the basis for collateral estoppel in a subsequent prosecution. Indeed, the Fifth Circuit's conclusion in Brackett that the burden-of-proof holding in Dowling would effectively exempt evidentiary facts from the operation of collateral estoppel seems to be based on the idea that the issue on which preclusion is sought would be an ultimate issue in the first prosecution, so that the issue in the first prosecution would nearly always be subject to the beyond-a-reasonable-doubt standard of proof, while an evidentiary fact in a second prosecution would nearly always be subject to a lesser standard proof.[154]
*552 In the present case, the legality of the detention was an ultimate issue in the first prosecution, but, as explained above, that status as an ultimate issue does not help appellant because of the lesser burden of proof with respect to suppression hearings. If, on the other hand, he relies upon the county court at law's resolution of the detention issue solely as a suppression issueso that the burden of proof in the two prosecutions is the samethen we are confronted with an issue that was not an ultimate issue in either prosecution. To accord collateral-estoppel protection, under the rubric of double jeopardy, to such an issue would stray far from the theoretical groundings of the Double Jeopardy Clause and the Supreme Court's earlier pronouncements on the issue of collateral estoppel.[155]
In light of our discussion, we reaffirm the bottom-line result in Murphy as controlling where a defendant seeks to bar the relitigation of suppression issues on the basis of double jeopardy. That is, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. We overrule appellant's second ground for review.
The judgment of the court of appeals is affirmed.
WOMACK, J., filed a concurring opinion.
COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.
WOMACK, J., filed a concurring opinion.
The Court has determined that for double-jeopardy-based collateral estoppel to bar the relitigation of a fact, that fact must be an essential element in both the prior prosecution and the subsequent prosecution.[1] I believe that this rule is a correct statement of the law.
I write separately to offer an alternate explanation for the rule, and to note its limitations.
*553 I. Terminology
This area of the law has an intricate terminology, which I have found it helpful to review.
The common law of finality is known as res judicata,[2] some parts of which have been codified in statutes and rules, and some parts incorporated in the Federal Constitution. I shall first address the underlying common law.
Res judicata "specifies the effect that any adjudication has on all subsequent litigation."[3]Res judicata encompasses claim preclusion and issue preclusion.[4] Claim preclusion prohibits a second suit based on the same claim between the same parties.[5] Issue preclusion prohibits a party from relitigating an issue (such as a fact, a question of law, or an application of law to fact) that was previously determined in a suit between the same parties.[6] Issue preclusion comprises two types of estoppel, collateral and direct. Collateral estoppel is issue preclusion in a suit that is based on a different claim than the suit in which the issue was originally decided. Direct estoppel is issue preclusion in a suit based on the same claim as the suit where the issue was originally decided. Because claim preclusion will generally prohibit a second suit on the same claim, questions of collateral estoppel are much more common than questions of direct estoppel.[7]
II. Res Judicata and Double Jeopardy
In the criminal law, claim preclusion has been subsumed by the Fifth Amendment prohibition of double jeopardy.[8] While a narrow interpretation of the Fifth Amendment would cover only instances of claim preclusion,[9] the Supreme Court has determined that the Fifth Amendment *554 also incorporates at least one type of issue preclusion. In Ashe v. Swenson,[10] the Supreme Court held that where a jury acquitted a defendant of robbing a poker player because it did not believe he was one of the robbers, the Fifth Amendment barred prosecutors from relitigating the issue of identity in another trial for the robbery of another player in the same poker game.[11]
Narrowly interpreted, Ashe applies only where the already proven fact from the first prosecution is an essential element of the offense in both the first and second prosecutions. I shall call this "essential-issue preclusion." Since the abolition of federal common law in state cases,[12] the only basis for the Supreme Court to interject a common-law concept like res judicata into a state case like Ashe would be if that common-law concept were incorporated in the Constitution. The Supreme Court's repeated interpretations of the double jeopardy clause are adamant that double-jeopardy analysis is grounded in the essential elements of an offense.[13] Because only the charged offense places a defendant in jeopardy of life or limb, the relitigation of facts that are not elements of the offense in two prosecutions cannot create double jeopardy.
Although the Fifth Amendment incorporates only essential-issue preclusion, this does not mean that essential-issue preclusion is the only type of res judicata in criminal cases. Indeed, Ashe stated that the use of "collateral estoppel" in criminal cases was already an "established rule of federal law at least since [the] court's decision... in United States v. Oppenheimer."[14] That case was not a case of essential-issue preclusion.
Oppenheimer had been charged with a federal offense, but the indictment was quashed after the trial judge ruled that the statute of limitations for the offense had run.[15] Oppenheimer was later reindicted for the same offense when a ruling in an unrelated case determined that the statute of limitations was longer than first believed. The Supreme Court held that, while it was not a Fifth Amendment matter,[16] as a matter of res judicata the second prosecution was barred.[17]
III. The Murphy Test
The Court's opinion discusses at length the test for issue preclusion that this Court had come to use and which was stated in Murphy v. State:
To determine whether collateral estoppel bars a subsequent prosecution or permits the prosecution but bars relitigation *555 of certain specific facts, this court has adopted the two-step analysis employed by the Fifth Circuit. See Neal v. Cain, 141 F.3d 207, 210 (5th Cir.1998); see also [Ex Parte Taylor, 101 S.W.3d 434, 440 (Tex.Cr.App.2002)]. This court stated that a court must determine (1) exactly what facts were necessarily decided in the first proceeding, and (2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial.[18]
On its face, this test purports to apply a two-part analysis to questions of both essential-issue preclusion (where "collateral estoppel bars a subsequent prosecution"[19]) and non-essential-issue preclusion (where "collateral estoppel ... permits the prosecution but bars relitigation of certain specific facts"). However, the second part of the two-part analysis requires that the fact-to-be-barred be an element of the second offense. Thus, in analyzing whether issue preclusion applies, this test eliminates the possibility of non-essential-issue preclusion and leaves only essential-issue preclusion.
How had this Court come to apply a test to questions of non-essential issue preclusion that eliminates the possibility of non-essential-issue preclusion? Murphy cited to Taylor for the proposition that we use a test from the Fifth Circuit. In Taylor, the test was formatted differently:
To determine whether collateral estoppel bars a subsequent prosecution (or permits prosecution but bars relitigation of certain specific facts) courts employ a two-step analysis. Courts must determine:
(1) exactly what facts were "necessarily decided" in the first proceeding; and
(2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial.[20]
It is not immediately clear to me what difference the parentheses make. Expressed in this format, does the test present non-essential-issue preclusion as an alternative to essential issue preclusion if the prongs of the test are not met? Or does it subject non-essential issue preclusion to the same test as essential-issue preclusion?
Taylor itself dealt with a pre-trial habeas applicant who alleged that an element of the offense for which he was being prosecuted had been decided in a previous case in which he had been acquitted.[21] Thus it was a question of essential-issue preclusion governed by Ashe. Taylor, even while discussing Ashe, still spoke broadly of "issue preclusion" and cited to sources that discussed issue preclusion without differentiating between essential and non-essential issues.[22] The court of appeals decision *556 which Taylor affirmed treated the matter as one of essential-issue preclusion.[23]
It is worthwhile to look at the authority for Taylor. It cited the Fifth Circuit's opinion in Neal v. Cain[24] as the source for its test.[25] In Neal, the test is formatted differently and is preceded with an explanation:
As the Supreme Court has recognized, the Double Jeopardy Clause incorporates the doctrine of collateral estoppel.... As applied against the government in criminal cases, collateral estoppel may either bar a subsequent prosecution, or it may prevent the relitigation of particular facts necessarily established in the prior proceeding. In determining whether collateral estoppel bars a subsequent prosecution, as Neal contends it does here, we engage in a two-step analysis. First, we must discern which facts were necessarily decided in the first proceeding. We then consider whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.[26]
In this statement it is clear that the two-part test is meant to discriminate between non-essential- and essential-issue preclusion. While Neal broadly discussed "collateral estoppel," the holding applied only to essential-issue preclusion. This makes sense in the context of the case: Because Ashe constitutionalized only essential-issue preclusion, the Fifth Circuit would not be deciding a matter of non-essential-issue preclusion in Neal, which was a claim for habeas relief from a state conviction.[27] Through the confusion caused by the general term "collateral estoppel," Taylor and Murphy have suggested that the test for essential issue preclusion also applied to questions of non-essential-issue preclusion. Because this test, by its very terms, will never find something that it purports to test for, i.e. non-essential-issue preclusion, we should use a different test.
By my reading, the Court and I are in agreement that the Murphy rule is not an accurate statement of the law, and today's opinion replaces the Murphy rule.
III. The Need for a Texas Rule
While I agree with the Court that the appellant has sought relief based only on double jeopardy protections, I would like to observe that today's holding does not foreclose the possibility of non-essential-issue preclusion based on non-constitutional grounds. The basis for my observation is two-fold. First, the language we have used in many cases has presumed that "collateral estoppel" could apply to facts that were not essential elements.[28] Second, *557 in at least one recent case this Court has explicitly held that "collateral estoppel" applied to bar the State from relitigating a fact that was not an essential element in either prosecution.
The petitioner in Ex parte Watkins killed his wife and shot her lover.[29] The State first tried him for the murder of his wife. The jury found him guilty, but during the punishment phase determined that he had acted "under the immediate influence of sudden passion arising from an adequate cause,"[30] and sentenced him to ten years' community supervision.[31] The State then indicted him for the attempted capital murder and attempted murder of his wife's lover. Watkins applied for a pre-trial writ of habeas corpus alleging that (1) ordinary double jeopardy barred the attempted-capital-murder prosecution, because the State had charged him with attempting to intentionally kill more than one person[32] and he already had been punished for the murder of his wife, and (2) "collateral estoppel" barred the State from relitigating the punishment-phase issue of whether he acted with sudden passion.[33] The Second Court of Appeals determined that ordinary double jeopardy was inapplicable, because the elements of attempted capital murder were distinct from the elements of murder charged in the first trial.[34] The Court of Appeals determined, however, that "collateral estoppel" did apply to bar the State from relitigating the punishment issue of sudden passion.[35] We granted review.
After noting the distinctions between double jeopardy and "collateral estoppel,"[36] we held that if a jury determines a punishment-phase special issue in the defendant's favor, "the doctrine of collateral estoppel bars the State from relitigating it in a second trial"[37] and affirmed the Court of Appeals.[38]
*558 The circumstances of Watkins illustrate one good reason why this Court should not categorically eliminate the possibility of non-essential-issue preclusion: Our statutes present several situations where an issue decided by a factfinder during the punishment phase in one case could be an issue for the factfinder in a subsequent case.[39] Additionally, our exclusionary rule allows the jury to determine during the guilt phase whether it believes beyond a reasonable doubt that evidence was seized legally.[40] If these matters came up in a subsequent prosecution, they would normally not be essential elements of the offense,[41] and thus essential-issue preclusion would not bar their relitigation.
At a minimum, I believe that in these situations common-law issue preclusion should protect the integrity of the original factfinder's determination and bar relitigation in a subsequent prosecution.[42]
IV. The Limits of Double Jeopardy Protections
I disagree with the Court's treatment of Ashe's limitations. By falling back to the "ultimate fact" language used in Ashe itselfbut not in the Supreme Court's subsequent Fifth Amendment casesthe Court simply invites litigation about the definition of "ultimate fact."[43] I believe *559 that my approach, in which double-jeopardy-based issue preclusion follows the contours of the Supreme Court's double jeopardy jurisprudence, avoids these problems. An analysis of two cases, Oppenheimer and Watkins,[44] which arguably involve "ultimate facts" but certainly do not involve essential elements, shows the limits of where I believe double-jeopardy-based issue preclusion applies.
First, Oppenheimer itself stated that the Fifth Amendment's double jeopardy protections did not apply in that case.[45]Oppenheimer dealt with a second prosecution after the first prosecution was determined to be barred by the statute of limitations. Oppenheimer was therefore never in jeopardy in the first case; thus his second prosecution was not a second jeopardy.[46] While the "acquittal" in Oppenheimer was "on the merits" of the case, the Supreme Court has since made clear that a judgment of acquittal that does not address issues of guilt or innocence does not necessarily bar an appeal or retrial.[47] The Supreme Court in Ashe used Oppenheimer to show that the federal courts applied common-law "collateral estoppel" in criminal cases, what it called "the federal rule," but because Oppenheimer was never in jeopardy during his first prosecution, and because the statute of limitations was not an element of the offense, Oppenheimer is not a case where double-jeopardy-based issue preclusion should apply.[48]
*560 Second, in Watkins, we were ultimately ambivalent regarding whether double jeopardy reached the case at all,[49] but applied issue preclusion nonetheless. In determining whether double jeopardy applied to a fact determined during the punishment phase of a prior proceeding, Watkins discussed Monge v. California[50] and Apprendi v. New Jersey.[51]
In Monge, the Supreme Court held that double jeopardy did not apply to noncapital sentencing proceedings.[52] During the sentencing phase of Monge's state trial, the prosecutor sought to enhance Monge's sentence on the basis that Monge had previously been convicted of a violent crime.[53] The prosecutor presented evidence of a prior conviction and asserted that Monge had personally committed a violent act during the offense, but the evidence of the conviction did not contain details of the offense. The trial court found the allegation true and enhanced Monge's sentence accordingly. A state court of appeals overturned the enhancement for lack of evidence and ruled that double jeopardy barred the state from relitigating the issue on remand.[54] The Supreme Court held that because punishment-phase punishment enhancers, as a general rule, did not constitute elements of the offense, the punishment phase question did not place Monge in jeopardy and thus relitigating it would not constitute double jeopardy.[55]
Apprendi involved a due process challenge to a New Jersey law that elevated the sentencing range if the trial judge found "by a preponderance of the evidence" that the offense was a hate crime.[56] The Supreme Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."[57] The Court arrived at this holding by determining that when a punishment-phase question increases the maximum possible sentence, that question is not a mere "sentencing factor," but is actually an element of an aggravated offense.[58]
We decided Watkins less than two years after Apprendi, when the continued validity of Monge was in question.[59] Nine years later, though, Monge's core holding remains good law; as a general rule, questions decided during the punishment phase do not place the defendant in jeopardy. Combining Monge and Apprendi, the scope of double jeopardy protections during the punishment phase becomes clear: When a punishment-phase issue increases *561 the maximum possible punishment, that question is an element of the offense and its relitigation may be barred by double jeopardy,[60] but double jeopardy has no application to the relitigation of punishment issues that do not increase the maximum possible sentence.[61]
Watkins dealt with a punishment-phase question that could not have increased the defendant's maximum possible punishment. Simply put, it did not place Watkins in jeopardy of anything. Thus federal double jeopardy protections were inapplicable.
Because Ashe's constitutional issue preclusion derives from the Fifth Amendment's prohibition on double jeopardy,[62] the first step to applying it accurately is to analyze which situations implicate the Fifth Amendment at all. By not clearly noting the limits of Ashe in its opinion today, the Court may keep us from analyzing essential- and non-essential-issue preclusion claims under the correct law in future cases.
COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.
I concur in the Court's judgment. I cannot join the majority opinion because I do not think that this case presents an issue of collateral estoppel.[1] Appellant relies solely upon the collateral estoppel doctrine embodied in the Double Jeopardy Clause of the United States Constitution as set out in Ashe v. Swenson.[2] That *562 constitutional collateral-estoppel doctrine depends upon the resolution of specific, ultimate historical facts in one proceeding that cannot be relitigated in a new proceeding.[3] Collateral estoppel involves Sgt. *563 Friday factsthe "who, why, where, when, what" facts of a case.[4] Here, the trial judge in the county court case simply made an erroneous legal ruling. That ruling ended the first case, and double jeopardy prevents any retrial of the failure-to-identify charge.[5] But that erroneous legal ruling does not prevent the State from prosecuting appellant for a different offensepossession of methamphetamine that arose out of the same incident.
The county court judge, in the middle of appellant's trial on the failure-to-identify charge, entered a directed verdict against the State. He explained his rationale to the jury:
[The officer] was outside his jurisdiction, stopped to investigate what was going on. I don't think there's anything wrong with that. But with him being outside his jurisdiction and him not testifying to any articulable facts as to how he thinks an offense might have been committed, I think the law requires me to grant the motion to suppress, which means y'all have no evidence in front of you.
The trial judge was wrong about the law, but he necessarily decided two historical facts:
1. Officer Johnsona patrol officer for the City of Bullardwas outside the Bullard city limits when he saw appellant's car;
2. Officer Johnson did not testify to any facts about a specific offense that he thought appellant had committed at the time that he detained appellant.
No one wants to relitigate those facts. Everyone agrees with those facts. The evidence at both the county-court and district-court suppression hearings was the same concerning those two facts. The *564 problem arose with how the county court judge treated those facts. He misapplied the law to those historical facts.
First, he misunderstood the law that allows a police officer to arrest someone when the officer is outside his jurisdiction. Under Article 14.03(d),[6] a police officer has the authority to temporarily detain or arrest for any felony or breach of the peace offense, such as DWI or public intoxication, that is committed within his presence or view.[7] Further, under Article 14.03(g)(2),[8] Officer Johnson had state-wide authority to detain or arrest for any non-traffic offense and county-wide jurisdiction to detain or arrest for any traffic offense committed in his presence or view.
So the historical fact that Officer Johnson was outside of the city limits of Bullard and technically outside of his jurisdiction was legally irrelevant to any issue for purposes of a motion to suppress in both the failure-to-identify and the possession-of-methamphetamine cases. The Code of Criminal Procedure gives him jurisdiction within Smith County (where the offense occurred) to detain or arrest for any offense. The county court judge made a legal error in giving any significance to the fact that Officer Johnson was "outside his jurisdiction."
The second historical fact that the county court judge found was that Officer Johnson did not testify that he had seen appellant actually commit any specific offense before he initially approached his cara car with a running engine and headlights pointed toward the closed building at 3:00 a.m.and woke him up.[9]*565 Again, there is no dispute that this is true. Again, it is not a legally dispositive fact. What mattered was whether Officer Johnson had reasonable suspicion to think that appellant had committed, was committing, or was about to commit some criminal offense, any offense, at the time he detained him by asking him to step out of the car.[10] The county court judge was mistaken about the law when he stated that Officer Johnson had to view a specific criminal offense before he could detain appellant and investigate the suspicious circumstances.[11] What matters, for purposes of Article 14.03, is that, at the time Officer Johnson arrested appellant, he had probable cause to believe that appellant possessed a controlled substance, in this case both marijuana and methamphetamine. And there is no dispute about that legal conclusion.
In sum, collateral estoppel, under the Double Jeopardy Clause, applies to the relitigation of historical facts that were necessarily decided against the State in the first proceeding. The State did not relitigate any ultimate historical facts that the county court judge found determinative. The county court judge's entry of an acquittal in the failure-to-identify trial was the result of a mistake of law, not a finding of historical fact. Therefore, double jeopardy prevented any retrial of that specific charge,[12] but it did not affect the district court judge's authority to apply the law correctly to those same historical facts in a different proceeding.
I therefore concur in the Court's judgment.
NOTES
[1] Bullard "closed down" by 10:00 p.m., and officers working late-night shifts were allowed to go to Tyler to get something to eat.
[2] The facts elicited in the failure to identify prosecution were different in the following respects from the testimony in this case: (1) Officer Johnson testified that the headlights were shining on the window, but he did not specifically testify that the headlights were shining "into the business." (But one of the prosecutors argued to the county-court-at-law judge: "The car wasthe lights were on inside the store illuminating the store.") (2) Officer Johnson testified that the "rear windows" were down, not just the driver's rear window. (3) Officer Johnson did not testify about appellant's "Chapel Hill" statement. These differences are immaterial to our resolution of the issues before us.
[3] See TEX. PENAL CODE § 38.02(b).
[4] TEX.CODE CRIM. PROC. art. 14.03(d).
[5] Appellant's "res judicata" claim was not really distinct from his collateral-estoppel claim, and we need not make any further reference to it.
[6] See TEX. PENAL CODE § 38.02(b) ("A person commits an offense if he intentionally gives a false or fictitious name . . . to a peace officer who has (1) lawfully arrested the person [or] (2) lawfully detained the person.").
[7] Defense counsel relied upon Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972); Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975); United States v. Nelson, 599 F.2d 714 (5th Cir. 1979); and United States v. Lee, 622 F.2d 787 (5th Cir. 1980).
[8] 239 S.W.3d 791 (Tex.Crim.App.2007).
[9] Other portions of our opinion reflect the content of the reasonable suspicion/Article 14.03 complaint made before the court of appeals.
[10] York v. State, No. 12-08-00106-CR, slip op. at 6, 2009 WL 4829996 (Tex.App.-Tyler December 16, 2009) (not designated for publication).
[11] Id. at 5-6.
[12] Id. at 6; see TEX. PENAL CODE § 42.03(a)(1) ("A person commits an offense if, without legal privilege or authority, he intentionally, knowingly or recklessly . . . obstructs a . . . sidewalk").
[13] York, No. 12-08-00106-CR, slip op. at 7 (citing Murphy, 239 S.W.3d at 795).
[14] Id.
[15] Appellant also contends that Officer Johnson lacked reasonable suspicion under Fourth Amendment standards, but as will become clear later, we need not address this contention.
[16] In State v. Garcia-Cantu, we determined that the trial court's finding that a detention had occurred was supported by the convergence of a number of factors, including: the "boxing in" of the defendant's vehicle, the use of a spotlight, the early morning hour in which the conduct occurred, the use of an authoritative tone of voice, shining a flashlight across the defendant's eyes, and asking for identification. 253 S.W.3d 236, 247-48, 250 (Tex.Crim.App.2008). No spotlight was used in the present case, and the district court was free to determine that the officer's voice was not authoritative.
Of course, the defendant in Garcia-Cantu was also awake, which was not true in the present case when Officer Johnson first approached the car. In G.M. v. State, the Supreme Court of Florida held that a person is not seized if he is unaware of the police conduct that would constitute an assertion of authority. 19 So.3d 973, 983 (Fla.2009). In that case, the defendant had not observed that a police car's flashing lights had been activated and became aware of police presence only after an officer identified himself and ordered the defendant to spit out the marijuana. Id. In arriving at its conclusion, the court cited "rare" and unpublished decisions from other courts that found no seizure when the defendant was unconscious or asleep, including one decision finding no seizure when the police blocked in a defendant's car. Id. at 982 n. 6. This holding seems consistent with Supreme Court caselaw that the occurrence of a detention depends upon a suspect's reasonable perception of restraint and submission to a show of authority. See Brendlin v. California. 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ("[T]here is no seizure without actual submission" and the test is whether "a reasonable person would have believed that he was not fi-ee to leave" or whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.").
[17] By its terms. Article 14.03 applies to "arrests," but with respect to a different part of the statute, we have held that "arrest" includes "detention." State v. Kurtz, 152 S.W.3d 72, 79-80 (Tex.Crim.App.2004).
[18] TEX.CODE CRIM. PROC. art. 2.12(3) (peace officers include "police officers of an incorporated city, town, or village").
[19] Id., art. 14.03(g)(2).
[20] At the time we decided Kurtz, a city police officer did not have the authority to arrest for a traffic offense committed in his presence or view but outside of his jurisdiction. See Kurtz, 152 S.W.3d at 79-80 (quoting from then existing version of Article 14.03(g)). Authority to arrest within the city police officer's county was added by amendment in 2005. Acts 2005, 79th Leg., Ch. 1015, § 1, eff. Sept. 1, 2005.
[21] Appellant did not have a driver's license in his possession and his vehicle was parked on a sidewalk, but it is not clear that either of these facts constituted a crime committed in Officer Johnson's presence. An operator of a motor vehicle must have a driver's license in his possession while operating a motor vehicle on a highway. See TEX. TRANSP. CODE §§ 521.021 & 521.025(a)(1). An operator of a motor vehicle may not stop, stand, or park the vehicle on a "sidewalk," Id., § 545.302(a)(2), but a "sidewalk" is defined in part for this purpose as "the portion of a street that is . . . between a curb or lateral line of a roadway and the adjacent property line." Id., § 541.302(16). Because we do not address the Court of Appeals's reliance upon the obstructing-a-sidewalk provision found in Penal Code § 42.03, we need not determine whether "sidewalk" in that statute has a meaning different from the definition found in the Transportation Code.
[22] United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010).
[23] Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.App.2001); see also Crain, 315 S.W.3d at 52.
[24] Garcia, 43 S.W.3d at 530.
[25] Curtis v. State, 238 S.W.3d 376, 378-79 (Tex.Crim.App.2007); see also Woods v. State, 956 S.W.2d 33, 38-39 (Tex.Crim.App.1997).
[26] See Stull v. State, 772 S.W.2d 449, 452 (Tex.Crim.App.1989) (this Court has upheld arrests under Article 14.01, which required commission of offense in an officer's presence, "when the police officers personally observed behavior that although not overtly criminal, was, when coupled with the officers' prior knowledge, sufficient to establish probable cause that an offense was then occurring"); Lunde v. State, 736 S.W.2d 665, 666-67 (Tex.Crim.App. 1987) (observing this Court's past rejection of sufficiency-of-the-evidence standard for determining when offense is committed in presence under Article 14.01instead employing probable cause standard traditionally associated with arrests); Delgado v. State, 718 S.W.2d 718, 720-21 (Tex.Crim.App.1986) (commission of crime within presence requirement of Article 14.01 satisfied when officer had probable cause to believe crime was being committed in his presence but it was later determined that officer was incorrect); see also McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003) (following Stull and Lunde).
[27] TEX. PENAL CODE § 49.02(a).
[28] Id., 1.07(40).
[29] One court of appeals has held specifically that the parking lot of a convenience store is a public place. Gonzalez v. State, 664 S.W.2d 797 (Tex.App.-Corpus Christi 1984), rev'd on other grounds in unpublished disposition, aff'ing as modified on remand, 683 S.W.2d 791 (Tex.App.-Corpus Christi 1984).
[30] Being asleep with the engine running has been held to be an indication that a person had operated his car earlier. See Denton v. State, 911 S.W.2d 388, 389-90 (Tex.Crim.App. 1995) (a person "operates" a motor vehicle for purposes of DWI when he takes "action to affect the functioning of his vehicle in a manner that would enable the vehicle's use," such as starting the ignition and revving the accelerator).
[31] Appellant cites several cases as buttressing his contention that Officer Johnson did not have reasonable suspicion to believe that appellant was committing the offense of DWI or public intoxication. Only one of those cases State v. Griffey, 241 S.W.3d 700 (Tex. App.-Austin 2007, pet. ref'd)involves a sleeping suspect. In Griffey, a manager at a Whataburger restaurant called the police at around 3:00 a.m. to report a person "passed out behind the wheel in the drivethrough." Id. at 702. Police found the suspect awake in her car, which was next to the drivethrough window. Id. The trial court suppressed evidence from the stop, id. at 703, and the court of appeals affirmed. Id. at 707. The court of appeals found that the officer lacked reasonable suspicion because the citizen-informant tip was not corroborated, and was actually contradicted by the fact that the suspect was awake when the officer arrived. Id.
As a lower appellate court decision, Griffey is not binding on us. In any event, Griffey is distinguishable because it dealt with the reliability of the information that the suspect was asleep. In the present case, Officer Johnson personally observed the suspect sleeping.
The Supreme Court of Colorado has stated, "Reasonable suspicion to make a stop for the crime of driving under the influence may arise when a police officer sees a person asleep behind the wheel of a car with its engine running." People v. Brown, 217 P.3d 1252, 1256 (Colo.2009). The Supreme Court of Louisiana has held those facts, combined with the early morning hour and the presence of the vehicle in the French Quarter of New Orleans, to be sufficient reasonable suspicion to make an investigatory stop. State v. Keller, 403 So.2d 693, 696 (La. 1981).
[32] See TEX. PENAL CODE § 49.01(2)(A). (The definition of "intoxicated" includes "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.")
[33] Appellant specifically relies upon the doctrine of collateral estoppel as articulated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which construed the doctrine as it was incorporated within the Double Jeopardy Clause of the Fifth Amendment. Any argument based upon a notion of collateral estoppel outside the double-jeopardy context is outside the scope of this opinion.
[34] Murphy, 239 S.W.3d at 792.
[35] Id. at 793.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 794.
[41] Id. at 795.
[42] Id.
[43] Id. at 795 (citing Ex parte Taylor, 101 S.W.3d 434 (Tex.Crim.App.2002) and Neal v. Cain, 141 F.3d 207 (5th Cir.1998)).
[44] Id. at 796 (citing United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.1979)).
[45] 767 S.W.2d 784 (Tex.Crim.App. 1989).
[46] Murphy, 239 S.W.3d at 797 (Meyers, J., concurring).
[47] In her concurring opinion, Judge Cochran concludes that the issues resolved in appellant's favor in the first prosecution were legal issues and that legal issues are not subject to collateral estoppel. But the court of appeals did not resolve appellant's claim on this basis; it relied solely on Murphy.
Also, whether Judge Cochran's basis for resolving this case is correct can be questioned on two levels. First, it is arguable that the trial court in the first prosecution did make a relevant factual finding when it characterized the officer as "not testifying to any articulable facts as to how he thinks the offense might have been committed." Second, there may be a question about whether an issue of law can be the subject of collateral estoppel. See Bobby v. Bies, ___ U.S. ___, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009) (Double Jeopardy case in which the Supreme Court defined collateral estoppel in this way: "Issue preclusion bars successive litigation of `an issue of fact or law' that `is actually litigated and determined by a valid and final judgment, and . . . is essential to the judgment.'") (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1980) (ellipsis in Bies)); RESTATEMENT (SECOND) OF JUDGMENTS §§ 27(referring to issue preclusion as applying to "an issue of fact or law"), 28(2) (listing exceptions to the preclusive effect of a prior determination of an issue of law). See also Womack, J., concurring, post, at 553 (stating that issue preclusion can prohibit a party from relitigating an issue "such as a fact, a question of law, or an application of law to fact").
We express no opinion on the question Judge Cochran's concurrence raises.
[48] See TEX. PENAL CODE § 38.02(b)(1), (2).
[49] The practical effect of granting the motion to suppress may be to derail appellant's prosecution, but that is not the same as barring the prosecution from the outset.
[50] See Murphy, 239 S.W.3d at 793-94.
[51] Murphy v. State, 200 S.W.3d 753, 757 (Tex. App.-Texarkana 2006).
[52] 141 F.3d at 210 (emphasis added). For the two-step analysis, Neal cited United States v. Brackett, 113 F.3d 1396 (5th Cir.1997), but, as will be discussed later, Brackett avoided the issue of whether the analysis applied when the defendant seeks only to bar the proof of certain facts. See Brackett, 113 F.3d at 1401 n. 9.
[53] See Simon v. Commonwealth, 220 Va. 412, 416, 258 S.E.2d 567, 570 (1979) ("Courts are in general agreement that in order to bar a subsequent prosecution for a different offense arising out of the same transaction, a necessary element of the offense in the second trial must have been clearly adjudicated in the earlier proceedings.") (emphasis in original).
[54] See Murphy, 239 S.W.3d at 795 (emphasis added).
[55] Taylor, 101 S.W.3d at 440.
[56] Id. at 439, 442-43 (Intoxication was an element of the offenses in both the first and second prosecutions. Acquittal in the first prosecution created a collateral estoppel bar to the second.).
[57] 623 S.W.2d 332 (Tex.Crim.App.1981).
[58] Taylor, 101 S.W.3d at 440 n. 17.
[59] 623 S.W.2d at 336 (quoting United States v. Mock, 604 F.2d 341 (5th Cir.1979)).
[60] Taylor's dicta would be consistent with these cases if the phrase "permits prosecution but bars the relitigation of certain facts" were construed only to describe situations in which an offense contains alternate elements, see e.g., Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Cr.App.1991) (capital murder by murder in the course of robbery or aggravated sexual assault), and the previously litigated fact involves one or more, but not all, of the alternate elements. As narrowly construed, Taylor would simply be saying that the essential-element-in-the-subsequent-prosecution requirement applies when the defendant is claiming to bar proof of an element of the offense, whether that element is a sole element (ending prosecution) or an alternate element (narrowing the State's theories of liability). But Murphy did not have such a narrow understanding of Taylor's dicta, and as will be seen below, the Fifth Circuit decisions that addressed the issue of barring the relitigation of certain facts took a broad view about what kinds of facts were being discussed.
[61] Dedrick, 623 S.W.2d at 336 (emphasis added) (quoting Mock, 604 F.2d at 343).
[62] See Dedrick, 623 S.W.2d at 336 (quoting Mock, 604 F.2d at 343).
[63] See this opinion, footnote 7.
[64] Wingate, 464 F.2d at 210.
[65] See Id. at 212 (quoting Ashe, 397 U.S. at 443, 90 S.Ct. 1189).
[66] 464 F.2d at 213.
[67] Id. at 214.
[68] 510 F.2d at 1017.
[69] Id.
[70] Murphy, 239 S.W.3d at 795.
[71] 605 F.2d at 1361.
[72] Id., passim.
[73] 767 S.W.2d at 785.
[74] Id.
[75] Id. at 786.
[76] Id. at 786-87.
[77] A decade after Neaves, we decided that a finding in an administrative license-suspension hearing does not even "implicate the rule of collateral estoppel as embodied in the Fifth Amendment guarantee against double jeopardy" because neither the successive-prosecution nor the multiple-punishment aspects of double jeopardy are at issue. Reynolds v. State, 4 S.W.3d 13, 18-20 (Tex.Crim.App. 1999).
[78] Bies, 129 S.Ct. at 2152; Yeager v. United States, ___ U.S. ___, 129 S.Ct. 2360, 2367 n. 4, 174 L.Ed.2d 78 (2009).
[79] See RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. j (1982).
[80] Judge Womack's concurrence contends that Murphy and Taylor read Neal v. Cain too broadly. Womack, J., concurring, post, at 555-57. We agree, which is one reason we have chosen to re-examine the matter.
[81] TEX. PENAL CODE § 38.02(b).
[82] TEX. PENAL CODE § 2.01 ("All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.").
[83] See Lalande v. State, 676 S.W.2d 115, 117-18, 117 n. 4 (Tex.Crim.App.1984) (State is not required to prove propriety of a search beyond a reasonable doubt in a motion to suppress hearing.); see also Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007) (recognizing that "the burden is on the State to show that the officer had reasonable suspicion" but not specifying the nature of that burden).
[84] See e.g., Castro, 227 S.W.3d at 741.
[85] In at least one instancethe voluntariness of consentthe burden of proof is "clear and convincing evidence." State v. Ibarra, 953 S.W.2d 242 (Tex.Crim.App.1997); Lalande, 676 S.W.2d at 117 n. 4.
[86] See Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (In a case involving the voluntariness of a confession, the Court stated that preponderance of the evidence is the standard employed by federal courts "in Fourth and Fifth Amendment suppression hearings."); Griffin v. State, 765 S.W.2d 422, 429-30 (Tex.Crim.App.1989) (citing Lego in adopting preponderance of the evidence standard in determining the voluntariness of a confession). The use of a preponderance of the evidence standard at trial to determine the existence of "reasonable suspicion" should not be confused with the "reasonable suspicion" standard that itself governs the police officer's conduct in the field. Reasonable suspicion that a crime is, has been, or soon will be committed is a standard far short of preponderance of the evidence. Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim.App.2009) ("reasonable suspicion" is less than "probable cause," which in turn is far short of preponderance of the evidence).
[87] 493 U.S. 342, 348-49, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
[88] Had the issue of guilt in the controlled-substance trial been contested and submitted to the jury, and had the jury been given an instruction on the suppression issue under article 38.23, the State's burden before the jury would have been "beyond a reasonable doubt." See TEX.CODE CRIM. PROC. art. 38.23(a) ("the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this article...."). Even with a contested jury trial on guilt, however, appellant would still have been required to show "a genuine dispute about a material fact" before he would be entitled to an instruction. See id. ("In any case where the legal evidence raises an issue hereunder...."); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008).
[89] 153 S.W.3d 413, 415 (Tex.Crim.App.2005) (construing TEX. PENAL CODE § 38.04).
[90] Id.
[91] Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.App.2007).
[92] Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim.App.2002) ("An appellate court reviewing a trial court's ruling on a motion to suppress must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling.").
[93] Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original) (sufficiency of the evidence standard); McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997) (motion for directed verdict is construed as a challenge to the sufficiency of the evidence).
[94] If, in addition to assuming that the judge believed all of Officer Johnson's testimony, we further assumed that the judge drew all inferences in the prosecution's favor, then appellant's collateral-estoppel claim would fail, under any understanding of collateral estoppel, because the issue on which appellant seeks preclusion would not be essential to the judgment: To acquit the defendant in the failure-to-identify prosecution, it is not necessary for the trial judge to conclude that the State failed to prove the legality of the seizure by a preponderance of the evidence; it is only necessary to conclude that the State failed to do so beyond a reasonable doubt. See RESTATEMENT OF JUDGMENTS § 68 (preclusive effect accorded only to a prior determination that is "essential to the judgment"); RESTATEMENT (SECOND) OF JUDGMENTS § 27 (same). However, if the trial judge had in fact viewed the entire record (including inferences) in the State's favor, and still believed that the State failed to prove the validity of the seizure, he could have granted appellant's motion for directed verdict without granting the motion to suppress (or independent of the motion to suppress).
[95] State v. Moreno, 294 S.W.3d 594, 600 (Tex. Crim.App.2009) (relying upon Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)).
[96] See Sanabria v. United States, 437 U.S. 54, 72-73, 77-78, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); id. at 72-73, 98 S.Ct. 2170 (Acquittal for insufficient proof of the element that the defendant was connected to a particular gambling business would bar prosecution for any crime which shared that element.); id. at 77-78, 98 S.Ct. 2170 (Judgment of acquittal in which Government's evidence was erroneously excluded "is final and unreviewable" and "absolutely bars a second trial.").
[97] We note that the prosecutor in the failure-to-identify prosecution did not object to the trial court considering appellant's motion to suppress and did not draw the trial court's attention to Woods. We need not decide whether the failure to object at that stage has procedural default consequences for the State in a subsequent prosecution. See State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Crim. App.1998) (notions of procedural default apply to the State); Ex parte Granger, 850 S.W.2d 513 (Tex.Crim.App.1993) (distinguishing prior case of Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990) on the basis that the State in Stephens was barred from prosecuting a lesser-included offense in a subsequent trial after acquittal for the greater offense on appeal on legal insufficiency grounds when a lesser-included-offense instruction had not been submitted in the earlier trial, and the State had failed to request one).
[98] Ashe, 397 U.S. at 437-39, 90 S.Ct. 1189.
[99] Id. at 439-40, 90 S.Ct. 1189.
[100] Id. at 445, 90 S.Ct. 1189.
[101] Id.
[102] Id. at 443, 90 S.Ct. 1189.
[103] Id. (quoting United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916)).
[104] 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957).
[105] Id. at 300, 77 S.Ct. 1064.
[106] Id. at 335, 77 S.Ct. 1064.
[107] Id. at 337, 77 S.Ct. 1064.
[108] Id. at 337-38, 77 S.Ct. 1064.
[109] Id. at 338, 77 S.Ct. 1064.
[110] 141 F.2d 927 (2d Cir.1944).
[111] Yates, 354 U.S. at 338, 77 S.Ct. 1064.
[112] RESTATEMENT OF JUDGMENTS § 68 cmt. p.
[113] The Evergreens, 141 F.2d at 928-931.
[114] Id. at 928-29.
[115] Id. at 930.
[116] Id. at 930-31.
[117] 11 F.3d 542 (5th Cir.1994).
[118] Id. at 545.
[119] Id.
[120] Id. at 545.
[121] Id. at 546.
[122] Brackett, 113 F.3d at 1401. For discussion of Dowling's holding on burden of proof, see this opinion, ante.
[123] Brackett, 113 F.3d at 1401 n. 9.
[124] Id.
[125] For authority in favor of extending collateral estoppel to such evidentiary facts, see United States v. Moffett, 882 F.2d 885, 889, 889 n. 2 (4th Cir.1989); United States v. Castillo-Basa, 483 F.3d 890, 897 n. 4 (9th Cir. 2007) (contending that a restriction of collateral estoppel to issues of ultimate fact is "completely without foundation"); United States v. Carter, 60 F.3d 1532, 1535 (11th Cir. 1995); Laughlin v. United States, 344 F.2d 187, 189-92 (D.C.Cir.1965) (collateral-estoppel effect accorded the suppression of tape recordings in earlier prosecution); State v. Aparo, 223 Conn. 384, 408 n. 9, 614 A.2d 401, 413 n. 9 (1992) (referring to "well established rule that collateral estoppel may exclude evidence in certain cases"); Underwood v. State, 722 N.E.2d 828 (Ind.2000) (citing Little v. State, 501 N.E.2d 412 (Ind.1986)); Little, 501 N.E.2d at 413-14 (relying in part upon Mock); People v. Acevedo, 69 N.Y.2d 478, 484-87, 515 N.Y.S.2d 753, 508 N.E.2d 665, 669-71 (Ct.App.1987); Commonwealth v. Holder, 569 Pa. 474, 479-80, 479 ns. 3, 4, 805 A.2d 499, 502, 502 ns. 3, 4 (2002) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27); Simon, 220 Va. at 416-18, 258 S.E.2d at 570-71; State v. Thomas Kramsvogel, 124 Wis.2d 101, 122, 369 N.W.2d 145, 155 (1985).
For authority against applying collateral estoppel to evidentiary facts, see United States v. Bailin, 977 F.2d 270, 277 n. 9 (7th Cir.1992) (earlier Second Circuit case, "insofar as it held that issue preclusion applies to evidentiary as well as ultimate facts, has been partially overruled by Dowling"); Flittie v. Solem, 775 F.2d 933, 942 (8th Cir.1985) (stating the law of the Eighth Circuit as "collateral estoppel does not bar relitigation of facts that are evidentiary in the second prosecution"); State v. Gusman, 125 Idaho 805, 809, 874 P.2d 1112, 1116 (1994) ("Collateral estoppel only precludes the relitigation of ultimate issues of fact.") (emphasis in original); State v. Sharkey, 574 N.W.2d 6, 9 (Iowa 1997) ("[C]ollateral estoppel applies only to ultimate facts, not to evidentiary facts."); State v. Glenn, 160 N.H. 480, 492-93, 9 A.3d 161, 171 (2010) ("[C]ollateral estoppel does not forbid the relitigation of an issue as one of evidentiary fact, even if the State has lost on the same issue as one of ultimate fact to be proven beyond a reasonable doubt in a prior trial.") (brackets and internal quotation marks omitted); Eatherton v. State, 810 P.2d 93, 99 (Wyo.1991) (adopting rule as articulated in Flittie).
[126] RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. j.
[127] Id.
[128] Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 771 (1st Cir.2010) ("[C]ollateral estoppel is no longer limited to ultimate issues: necessary intermediate findings can now be used to preclude litigation.") (emphasis in original); Synanon Church v. United States, 820 F.2d 421, 426-27 (D.C.Cir.1987) (rejecting The Evergreens view in favor of the Restatement (Second)); Meier v. Commissioner, 91 T.C. 273, 283-86 (1988) (same); Smith v. Roane, 284 Ark. 568, 570, 683 S.W.2d 935, 936 (1985) (same); Comes v. Microsoft Corp., 709 N.W.2d 114, 121 (Iowa 2006) (adopting comment j); In Re Zachary G., 159 N.H. 146, 151, 982 A.2d 367, 372 (2009) (favorable citation to comment j); see also Winters v. Lavine, 574 F.2d 46, 58 n. 12 (2d Cir.1978) (criticizing rule from The Evergreens and citing favorably a tentative draft of comment j).
[129] RESTATEMENT (SECOND) OF JUDGMENTS, Ch. 1: Introduction, Scope Note; see also id., § 85, Reporter's Notes, last para. ("The preclusive effect in a subsequent criminal prosecution of a prior civil judgment against the government is outside the scope of this Restatement.").
[130] Compare, this opinion, footnotes 125 and 128.
[131] See Bies, 129 S.Ct. at 2152; Yeager, 129 S.Ct. at 2367 n. 4.
[132] Yeager, 129 S.Ct. at 2367 n. 4.
[133] Id. at 2367; Bies, 129 S.Ct. at 2153.
[134] 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).
[135] Id. at 11, 100 S.Ct. 1999.
[136] Id. at 13, 100 S.Ct. 1999.
[137] Id.
[138] Id. at 22, 100 S.Ct. 1999.
[139] Id.
[140] Id. at 23-24, 100 S.Ct. 1999.
[141] Id. at 24, 100 S.Ct. 1999.
[142] RESTATEMENT (SECOND) OF JUDGMENTS, § 28(1).
[143] See Standefer, supra.
[144] See RESTATEMENT (SECOND) OF JUDGMENTS, § 85(3) ("A judgment against the prosecuting authority is preclusive against the government only under the conditions stated in §§ 27-29."); id., § 85 cmt. g ("If the matter adjudicated was one of affirmative defense and the defendant had the burden of establishing the defense by a preponderance of the evidence, it would be appropriate to treat the issue as conclusive against the government in a subsequent civil action. However, the government usually does not have a right of appellate review of a criminal judgment, so that the exception created in § 28(1) would ordinarily deny preclusive effect to the finding even in the case of an affirmative defense. Hence it would be a rare case in which an acquittal could result in preclusion against the government in a subsequent civil action.").
[145] Standefer, 447 U.S. at 23, 100 S.Ct. 1999.
[146] Standefer, 447 U.S. at 23, 100 S.Ct. 1999.
[147] TEX.CODE CRIM. PROC. art. 44.01(a)(5).
[148] Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App.1988); Bell v. State, 442 S.W.2d 716, 719 (Tex.Crim.App.1969).
[149] See Garza v. State, 126 S.W.3d 79, 84-85 (Tex.Crim.App.2004) (error preserved by late objection when trial judge indicated that motion to suppress would be carried with trial).
[150] See Ortiz v. State, 933 S.W.2d 102, 105-06 (Tex.Crim.App.1996) (jeopardy attaches in Texas when the jury is sworn in a jury trial, when the defendant pleads to the indictment in a bench trial, or when a plea agreement is accepted in a plea-bargain setting)
[151] See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (before double-jeopardy protections are implicated, jeopardy must have attached); State v. Moreno, 294 S.W.3d 594, 597 (Tex.Crim.App.2009) (same); Reynolds, 4 S.W.3d at 20 (collateral estoppel not implicated by civil administrative proceeding [a proceeding in which jeopardy would never attach]); Guajardo v. State, 109 S.W.3d 456, 462-63 (Tex.Crim.App.2003) (Meyers, J., concurring) (collateral estoppel, as a component of double jeopardy, does not apply to determinations made in a proceeding that was dismissed before jeopardy attached); United States v. Dionisio, 503 F.3d 78, 85 (2d Cir. 2007) (same).
[152] 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
[153] See United States v. Dixon, 509 U.S. 688, 703-09, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); id. at 704, 113 S.Ct. 2849 (adopting J. Scalia's Grady dissent); Grady, 495 U.S. at 529, 110 S.Ct. 2084 (Scalia, J., dissenting) (The language of the Double Jeopardy Clause "protects individuals from being twice put in jeopardy `for the same offence,' not for the same conduct or actions.").
[154] See Brackett, 113 F.3d at 1401 n. 9 ("Because only ultimate facts must be established beyond a reasonable doubt, however, Dowling effectively limits the doctrine of collateral estoppel to cases in which the government seeks to relitigate an essential element of the offense.").
[155] Judge Womack's concurrence raises some interesting (and complex) questions regarding both the scope of the collateral estoppel doctrine within the double-jeopardy protection and whether the collateral estoppel doctrine has any vitality outside the double-jeopardy context. Does the double-jeopardy protectionvia Ashe's "ultimate fact" languageinclude the application of collateral estoppel to defenses (e.g. self-defense) and punishment-mitigation issues (e.g. sudden passion), and if not, should preclusive effect be given to jury findings on these types of issues on some other basis? See United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916) (pre-Ashe case applying collateral estoppel to a statute of limitations defense); Ex parte Watkins, 73 S.W.3d 264, 267-72 (Tex.Crim.App.2002) (applying collateral estoppel to sudden-passion punishment-mitigation issue under the rubric of double jeopardy in the pretrial habeas setting); Guajardo v. State, 109 S.W.3d at 468-69 (Tex.Crim.App. 2003) (Hervey, J., concurring) (arguing that collateral estoppel does not exist in criminal cases outside the double-jeopardy context). Should we re-think some of our other precedents (besides Murphy) in light of evolving Supreme Court jurisprudence? We need not address those questions here. It is enough here to hold that double-jeopardy protections are not involved when the issues on which the defendant seeks preclusion are not ultimate in nature.
[1] The Court at times uses the terms "ultimate fact" instead of "essential element." However, the Court also argues that for an issue to be an "ultimate fact," jeopardy must attach to it. Therefore, I believe that my statement of the Court's rule is accurate.
[2] "A thing adjudicated." BLACK'S LAW DICTIONARY (9th ed.2009).
[3] ROBERT C. CASAD & KEVIN M. CLERMONT, RES JUDICATA: A HANDBOOK ON ITS THEORY, DOCTRINE, AND PRACTICE 3 (2001).
[4] Confusingly, claim preclusion has traditionally been referred to as "res judicata" and issue preclusion has been referred to as "collateral estoppel." See, e.g., Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Both of these terms, however, have different uses, and the modern trend is to use the terms "claim preclusion" and "issue preclusion." Baker by Thomas v. General Motors, 522 U.S. 222, 233 n. 5, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998).
[5] See 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD N. COOPER, FEDERAL PRACTICE & PROCEDURE § 4402 (2d.2002) (quoting Kaspar Wire Works, Inc. v. Leco Engr'g & Mach., Inc., 575 F.2d 530, 535-36 (5th Cir.1978)).
[6] See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982).
[7] CASAD & CLERMONT, supra note 3, at 10 (noting that the term "collateral estoppel" has come to be regarded as a generic term for both types of issue preclusion, but that the term "issue preclusion" is preferable).
[8] See U.S. CONST. amend. V ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"); see also CASAD & CLERMONT, supra note 3, at 23 (noting that double jeopardy and claim preclusion are slightly different, and then concluding: "Because jeopardy attaches even before judgment, any judgment that would be valid, final, and on the merits for purposes of [claim preclusion] would also be one covered by double jeopardy. The existence of the double jeopardy protection thus has retarded the independent application of the claim preclusion aspects of res judicata in repetitive criminal cases.")
[9] See United States v. Dixon, 509 U.S. 688, 703-12, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (re-establishing and tracing the history of the rule that the Fifth Amendment bars a subsequent prosecution only when the subsequent prosecution is for an offense that meets the "same-elements" test laid out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).
[10] 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
[11] Id., at 445-47, 90 S.Ct. 1189.
[12] See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
[13] See Dixon, 509 U.S., at 703-712, 113 S.Ct. 2849.
[14] Ashe, 397 U.S. at 445, 90 S.Ct. 1189.
[15] United States v. Oppenheimer, 242 U.S. 85, 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916).
[16] Id., at 87, 37 S.Ct. 68 (accepting the prosecution's assertion that the case was one where "the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged").
[17] Id., at 87-88, 37 S.Ct. 68 ("The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time" (citation omitted)).
[18] Murphy v. State, 239 S.W.3d 791, 795 (Tex. Cr.App.2007).
[19] Strictly speaking, essential issue preclusion does not bar prosecution, as claim preclusion or ordinary double jeopardy would. Rather, it bars the State from litigating an essential element of the offense. That was the narrow issue Ashe addressed. See Ashe, 397 U.S. at 446-47, 90 S.Ct. 1189. Of course, if a prosecution were brought in such circumstances, the defendant would be entitled to a directed verdict, which means that the prosecution would be practically barred. Additionally, there may be due process and ethical problems with bringing a prosecution where the State knew it would be unable to prove an essential element, but those matters are beyond the scope of the Fifth Amendment.
[20] Taylor, 101 S.W.3d at 440 (citing Neal v. Cain, 141 F.3d 207, 210 (5th Cir.1998)).
[21] Id., at 436.
[22] See, e.g., id., at 442.
[23] Ex parte Taylor, 2000 WL 19151, at *2, *6 (Tex.App.-Houston [14th Dist.] January 13, 2000) (mem.op.).
[24] 141 F.3d 207 (5th Cir.1998).
[25] See Taylor, 101 S.W.3d, at 440 n. 17.
[26] Neal, 141 F.3d, at 210 (emphasis added) (citations omitted).
[27] For its essential issue preclusion test, Neal cited to United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997), a federal prosecution that addressed both essential and non-essential issue preclusion. Because non-essential issue preclusion is not a constitutional matter, the Fifth Circuit's discussions on the topic carry less weight in determining how we should address the issue.
[28] Such language appears in numerous cases cited by the Court: Murphy, 239 S.W.3d, at 795 (purporting to apply an issue preclusion test to situations where issue preclusion "permits the prosecution but bars religitation of certain specific facts"); Taylor, 101 S.W.3d at 440 (same); Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Cr.App.1981) (quoting Fifth Circuit precedent for the proposition that facts "established in the first trial may not be used in the second trial either as ultimate or as evidentiary facts"); Neaves v. State, 767 S.W.2d 784, 786 (Tex.Cr.App.1989) (applying a rule from a New York state case that differentiated between situations where "res judicata" merely barred the relitigation of "facts or issues" decided in a prior case, and situations where it barred a subsequent prosecution).
[29] 73 S.W.3d 264, 266 (Tex.Cr.App.2002).
[30] See TEX. PENAL CODE § 19.02(d) (reducing murder to a second-degree felony if the factfinder, during the punishment phase, finds by a preponderance of the evidence that the defendant "caused the death [while] under the immediate influence of sudden passion arising from an adequate cause").
[31] Watkins, 73 S.W.3d, at 267.
[32] See TEX. PENAL CODE § 19.03(a)(7).
[33] Ex Parte Watkins, 52 S.W.3d 858, 860-62 (Tex.App.-Fort Worth 2001), aff'd 73 S.W.3d 264 (Tex.Cr.App.2002).
[34] Id., at 862.
[35] Id., at 861 ("Thus, after the jury in Appellant's first trial determined that he acted in sudden passion, an ultimate issue on punishment, the State may not hale him before a new jury to relitigate that issue again." (international quotation omitted)).
[36] Watkins, 73 S.W.3d, at 267-68.
[37] Id., at 269. I note that the Court in Watkins seems to have believed that the case before it was controlled by Ashe. Id., at 268. While I believe that Watkins was correct in its collateral estoppel holding, as I have laid out above I do not believe it necessarily involved Ashe because the case was one of non-essential issue preclusion.
[38] Id., at 275. Under the rule announced today, Watkins was wrongly decided if it was indeed a double jeopardy case, as the Court says. The sudden-passion special issue in Watkins was a defensive special issue, not an essential element of the offense in either prosecution, thus application of the rule announced by the Court today would deny relief.
The jury question at issue in Watkins did not place the defendant in jeopardy, as that word is understood in Fifth Amendment jurisprudence, at either trial because the question could not have resulted in increased punishment. If answered in the affirmative, Watkins's punishment range would be reduced; if answered in the negative, his punishment range would remain the same as if the question had never been asked.
It is true, as the Court observes, that Ashe referred to collateral estoppel barring relitigation of an "issue of ultimate fact," not an "essential element." However, when Ashe used the phrase "issue of ultimate fact" it was describing the common-law rule of issue preclusion as applied by the federal courts. The degree to which Ashe constitutionalized that federal common-law rule is, logically, limited by the scope of the Fifth Amendment, which only protects defendants from being twice placed in jeopardy for the same offense. We should read Ashe as simply expanding the application of the Fifth Amendment to situations where the defendant is twice placed in jeopardy for the same element in two prosecutions. This interpretation more closely ties double-jeopardy-based issue preclusion to the ordinary, claim-preclusion effect of the double jeopardy clause, which only applies when all of the elements of two charged offenses overlap.
[39] See id., at 269 n. 14 (listing statutory special punishment-phase issues that can be given to jurors, including: finding a deadly-weapon was used, TEX. PENAL CODE § 12.35(c)(1); finding that an offense was committed because of bias or prejudice, TEX. PENAL CODE § 12.47(a); finding that murder was committed because of sudden passion, TEX. PENAL CODE 19.03(d); finding that kidnapper voluntarily released a victim in a safe place, TEX. PENAL CODE § 20.04(d); finding that the defendant is the same person as that convicted in a prior case as set out in an enhancement paragraph, TEX. PENAL CODE § 12.42).
[40] TEX.CODE CRIM. PROC. art. 38.23(a).
[41] As I shall discuss shortly, under Supreme Court precedent any punishment-phase issue that could increase the maximum possible sentence, such as a finding that the offense was committed because of bias or prejudice, would be considered an element of the offense, and thus relitigation may be barred by essential-issue preclusion.
[42] Cf. Rollerson v. State, 227 S.W.3d 718, 729-32 (Tex.Cr.App.2007) (where original factfinder found appellant used a deadly weapon in commission of burglary but court of appeals found evidence of deadly-weapon use legally insufficient, the State could relitigate the deadly-weapon question at a second trial because collateral estoppel protects determinations made by the original factfinder, not the appellate court).
[43] The term "ultimate fact" is not self-defining, nor has its meaning always been consistent with what the Court believes it to mean. See, e.g., Laughlin v. United States, 344 F.2d 187, 191-92 (D.C.Cir.1965) (using as definition of "ultimate facts" as "those [facts] which the law makes the occasion for imposing its sanctions," and holding that a trial court's determination that certain evidence was inadmissible was an "ultimate fact" subject to issue preclusion in a second prosecution).
[44] See Sections II and III, supra.
[45] See Oppenheimer, 242 U.S., at 88, 37 S.Ct. 68 (the Fifth Amendment "has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice," namely common-law res judicata; the Court then cited to Jeter v. Hewitt, 63 U.S. 352, 364, 22 How. 352, 16 L.Ed. 345 (1859), a civil case where the Court, as authorized by a Louisiana statute, applied common-law claim preclusion).
[46] Id., at 87, 37 S.Ct. 68 (accepting the prosecution's assertion that the case was one where "the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged," which is the sense in which the Fifth Amendment recognizes jeopardy). For this reason, I also disagree with Judge Cochran's citation of Oppenheimer as a double jeopardy case.
[47] United States v. Scott, 437 U.S. 82, 90-91, 98-99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); see Kruelski v. Conn. Super. Ct. for the Judicial Dist. of Danbury, 316 F.3d 103, 109-11 (2nd Cir.2003) (where trial judge dismissed case, after jeopardy attached, on defendant's motion that prosecution was barred by the statute of limitations, prosecution's appeal and subsequent retrial was not barred by double jeopardy protections)
[48] Ashe, 397 U.S., at 443-44, 90 S.Ct. 1189. Other cases seem to have uniformly viewed Oppenheimer as an example of collateral estoppel. At the risk of heterodoxy, I cannot agree with that analysis.
The motion that the Oppenheimer Court ruled on was a "plea in bar." A plea in bar was not an assertion of issue preclusion, but rather claim preclusion. See WRIGHT, MILLER & COOPER, supra note 5, at § 4402 (quoting Fifth Circuit case describing claim preclusion as being composed of the doctrines of bar and merger, and distinguishing claim preclusion and issue preclusion); CASAD & CLERMONT, supra note 3, at 82-85. Bolstering this observation is the fact that the Court referred to "res judicata," which, while also an overarching term for the law of finality, has traditionally been used to refer specifically to claim preclusion. Additionally, Oppenheimer discussed the "judgment" of the first court, not its findings, and noted that "[a] plea to the statute of limitations is a plea to the merits"; this is more in line with claim preclusion analysis than issue preclusion analysis. Finally, I note that Oppenheimer was a second prosecution based on the exact same claim as a prior prosecution, yet Oppenheimer was never in jeopardy during the first prosecution. Upon close reading, it appears to me that Oppenheimer was a case neither of double jeopardy nor issue preclusion, but rather common-law claim preclusion.
[49] See Watkins, 73 S.W.3d, at 274 ("this type of double jeopardy or collateral estoppel claim" (emphasis added)).
[50] 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998)
[51] 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
[52] Monge, 524 U.S., at 724, 118 S.Ct. 2246.
[53] Id., at 725, 118 S.Ct. 2246.
[54] Id., at 726, 118 S.Ct. 2246.
[55] Id., at 728-29, 118 S.Ct. 2246.
[56] Apprendi, 530 U.S., at 468-69, 120 S.Ct. 2348.
[57] Id., at 490, 120 S.Ct. 2348.
[58] Id., at 494-95, 120 S.Ct. 2348.
[59] See, e.g., Watkins, 73 S.W.3d, at 271 (Apprendi had "significantly curtailed" Monge; in Apprendi, "[t]he Court distanced itself from Monge ...").
[60] See United States v. Blanton, 476 F.3d 767, 772-73 (9th Cir.2007) (Apprendi modified Monge such that double jeopardy barred the prosecution from appealing a trial court's finding that the prosecution had failed to prove a punishment enhancer beyond a reasonable doubt; since enhancer was an element of the offense, trial court's finding, even if based on erroneous legal interpretation, was an acquittal). But see Rollerson v. State, 227 S.W.3d 718, 730-32 (Tex.Cr.App.2007) (where appellant "concede[d] that relitigation of the deadly-weapon issue is not barred by double jeopardy," double jeopardy did not bar the State from relitigating a punishment enhancer that increased the maximum possible sentence on remand after appellate court determined there was insufficient evidence for trial court to have found punishment enhancer true; neither opinion nor briefs made mention of Apprendi).
[61] See United States v. Rosales, 516 F.3d 749, 757-58 (9th Cir.), cert. denied, 553 U.S. 1095, 128 S.Ct. 2904, 171 L.Ed.2d 843 (2008) (double jeopardy did not bar prosecutor from appealing trial court's refusal to apply a sentencing enhancement that would have increased the minimum sentence imposed).
[62] The Supreme Court has referred to Ashe-derived collateral estoppel as "[t]he collateral-estoppel effect attributed to the Double Jeopardy Clause." Dixon, 509 U.S., at 705, 113 S.Ct. 2849. I believe this is an accurate description. Where repeated prosecutions for the same offense elements are at issue, application of the double jeopardy clause will result in issue preclusion. In claims to which the double jeopardy clause does not apply, it will have no effect of any sort. Therefore, any issue preclusion in those cases will be an effect from applying a different doctrine.
[1] If this case did raise a collateral estoppel issue, I would agree that our unanimous opinion in Murphy v. State, 239 S.W.3d 791 (Tex. Crim.App.2007), resolves the question of whether that doctrine applies in the context of a pretrial motion to suppress. As we held in Murphy, it does not.
[2] 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Specifically, appellant does not rely upon any federal common-law doctrine of issue preclusion or any common-law civil doctrine of issue preclusion as set out in the RESTATEMENT (SECOND) OF JUDGMENTS. Although the Supreme Court recently quoted from section 27 of the Restatement in Bobby v. Bies, ___ U.S. ___, 129 S.Ct. 2145, 2152, 173 L.Ed.2d 1173 (2009), it did so in connection with rejecting a Double Jeopardy claim. In Bies, the Supreme Court held that "the doctrine of issue preclusion, recognized in Ashe to be `embodied in' the Double Jeopardy Clause" did not bar the State from relitigating the question of the defendant's mental retardation even though the state supreme court had, in the direct appeal, found that the defendant had mild to borderline mental retardation. First, the defendant was not "twice placed in jeopardy" because he was convicted in the first trial, not acquitted. Id. at 2149. Second, that factual finding of mild mental retardation was not "essential" to the first judgement. Id. at 2152 ("If a judgment does not depend on a given determination, relitigation of that determination is not precluded."). Third, even if it had been essential, the type of issue preclusion the defendant sought would not be conclusive because the law had changed in the meantime. Fourth, Bies's case "does not involve an `ultimate fact' of the kind our decision in Ashe addressed" and Bies was not acquitted in the first trial based on that specific fact. Id. at 2153. Fifth, even if the defendant could invoke the Restatement type of issue preclusion, the Court would not apply it in that case because the law had changed in the meantime. Id. ("Moreover, even if the core requirements for issue preclusion had been met, an exception to the doctrine's application would be warranted due to this Court's intervening decision in Atkins [v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)]."). But, of course, if the Ashe v. Swenson type of "ultimate factual finding" collateral estoppel under the Double Jeopardy Clause did apply, then that fact could not be relitigated even if the law had changed. The Double Jeopardy Clause would forbid it.
Because appellant invoked only the collateral-estoppel doctrine set out in Ashe v. Swenson, we need not address common-law or Restatement issue-preclusion doctrines. Those non-constitutional, common-law civil doctrines are frequently held to be inapplicable in criminal cases because "more fundamental concerns here are the enforcement of criminal laws designed to protect communities, and the public interest in the prosecution of crimes against persons. If these concerns are to be considered, collateral estoppel `cannot be applied [to criminal cases] in quite the same way as civil cases.'" United States v. McMillian, 898 A.2d 922, 935 (D.C.2006) (quoting New York v. Plevy, 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518, 521 (1980)); see also New York v. Hilton, 95 N.Y.2d 950, 722 N.Y.S.2d 461, 745 N.E.2d 381, 382 (2000) (collateral estoppel principles "are not to be liberally applied in criminal cases"); Pinkney v. Keane, 920 F.2d 1090, 1096 (2d Cir.1990) (noting that "collateral estoppel is less liberally applied in criminal cases than in civil actions, because `considerations peculiar to the criminal process may outweigh the need to avoid repetitive litigation'"). As the Supreme Court has explained in rejecting the application of nonmutual collateral estoppel,
"[T]he purpose of a criminal court is ... to vindicate the public interest in the enforcement of the criminal law while at the same time safe-guarding the rights of the individual defendant. The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction."
Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) (quoting United States v. Standefer, 610 F.2d 1076, 1093 (3d Cir.1979) (en banc)).
[3] See Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit"). In Ashe, the prosecution charged that the defendant was one of several men who had robbed a group of six poker players. After Ashe was tried and acquitted of robbing one of the players, the state tried him for robbing a different player. The second prosecution, based on "substantially stronger" testimony from "witnesses [who] were for the most part the same," resulted in a conviction. Id. at 439-40, 90 S.Ct. 1189. The Supreme Court concluded that the second prosecution was constitutionally prohibited. Because the "single rationally conceivable issue in dispute before the jury" at the first trial was whether Ashe was one of the robbers, the Court held that the jury's acquittal collaterally estopped the State from trying Ashe for robbing a different player during the same criminal episode. Id. at 445, 90 S.Ct. 1189. That is, the historical "fact" that the defendant was not one of the robbers had already been decided. It could not be relitigated because "whatever else th[e] constitutional guarantee [against double jeopardy] may embrace, it surely protects a man who has been acquitted from having to `run the gantlet' a second time." Id. at 445-46, 90 S.Ct. 1189 (citations omitted).
[4] An ultimate fact issue to which collateral estoppel theoretically could apply in this case would be that appellant was not the person in the parked car. Other historical facts to which collateral estoppel would apply would include: in a DWI acquittal followed by an intoxication manslaughter prosecution, an essential finding that the defendant was not intoxicated. See Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567, 572-73 (1979) (defendant who was acquitted of DWI could be later prosecuted for reckless manslaughter but government could not introduce evidence that he was intoxicated at the time of accident, although it could introduce evidence that he had been drinking).
[5] See Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ("The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though `the acquittal was based upon an egregiously erroneous foundation.' If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.") (citation omitted); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (even though the acquittal verdict may be based "upon an egregiously erroneous foundation," the verdict is final, and the defendant cannot be retried for the same offense without violating double jeopardy); see also United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916) (defendant whose conspiracy indictment had been dismissed with prejudice because of a perceived statute of limitations bar could not be reprosecuted for the same conspiracy offense after it was discovered that limitations did not, in fact, bar prosecution; "It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence").
[6] TEX.CODE CRIM. PROC. art. 14.03(d). That provision reads as follows:
A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.
[7] See Brother v. State, 166 S.W.3d 255, 260 (Tex.Crim.App.2005) (city police officer who had articulable suspicion to believe that defendant was driving while intoxicated could detain him outside of his city limits).
[8] TEX.CODE CRIM. PROC. art. 14.03(g)(2). That provision reads as follows:
A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer described in this subdivision who is outside of that officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.
Article 2.12(3) of the same Code states that peace officers include "marshals or police officers of an incorporated city, town, or village."
[9] The evidence showed that Officer Johnson saw a car parked partially on the sidewalk next to a gas station with its engine running and its headlights on at 3:00 a.m. in the morning. Officer Johnson had personally assisted in a burglary investigation at this gas station on a prior occasion and he knew that there had been several other burglaries at this business. He therefore stopped to investigate the suspicious circumstances. The testimony at the failure-to-identify trial that the county court judge relied upon was as follows:
Q: You've stated in your report that you observed my client, Mr. York, for a couple of minutes before you woke him up; is that accurate?
A: Yes.
Q: Would you say that in those couple of minutes, you were able to determine that there was not a burglary at that location going on?
A: Well, I couldn't say that there was one occurring at that time, yes.
Q: Okay. And you didn't see any kind of property or anything in the car, did you?
A: Not from standing outside, no.
Q: Nothing that would give you reason to believe that he had burglarized that store?
A: No.
. . .
Q: Okay. Officer, at that time, when you asked for consent to search and continued your investigation, Mr. York hadn't committed any type [of] felony offense within your view at that time, had he?
A: No, he had not.
Q: He had not committed any type of offence that would be a breach of the peace; is that correct?
A: No he had not.
Q: He hadn't committed any type of public order crime, such as a riot or something to that effect?
A: No, he had not.
[10] See Derichsweiler v. State, ___ S.W.3d ___, ___ - ___, 2011 WL 255299, (Tex.Crim.App. 2011) ("A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity," but officer need not specify a particular offense that he believes has been, is, or will be committed; "it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction" at the time he makes a temporary detention).
[11] Id.
[12] United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 7, 2011
No. 10-30877
Summary Calendar Lyle W. Cayce
Clerk
PRENTICE ROBINSON,
Plaintiff-Appellant
v.
N. BURL CAIN, Warden of the Louisiana State Penitentiary; LARRY CLARK,
Chairman of the Louisiana Board of Pardons; EUGENE “POP” HATAWAY,
Member, Louisiana Board of Pardons; CLEMENT LAFLEUR, Member,
Louisiana Board of Pardons; KENNETH A. JONES, Member, Louisiana Board
of Pardons; HENRY W. TANK POWELL; BOBBY JINDAL, Governor, State of
Louisiana; JAMES M. LEBLANC, Secretary of the Louisiana Department of
Public Safety and Corrections,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-718
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 10-30877
Prentice Robinson, Louisiana prisoner # 75065, moves for leave to proceed
in forma pauperis (IFP) on appeal following the district court’s denial of his IFP
motion and certification that his appeal is not taken in good faith. By moving
to proceed IFP, Robinson challenges the district court’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Because the merits of Robinson’s
appeal are “inextricably intertwined” with the district court’s certification that
the appeal was not taken in good faith, we must determine both issues. Id.
Robinson alleged that the defendant state governor and members of the
Louisiana Board of Pardons—Governor Bobby Jindal, Larry Clark, Eugene
Hathaway, Kenneth A. Jones, Henry Powell, and Clement LaFleur, Jr.—should
be enjoined from using changes in Louisiana’s pardon process instituted after his
1972 conviction for aggravated rape and his 1973 sentence for attempted simple
rape because the changes “effectively alter or extend [his] prison terms” in
violation of ex post facto provisions contained in the United States Constitution
and the Louisiana constitution. Those defendants then moved for summary
judgment, alleging that Robinson’s complaint was time barred by the Louisiana
liberative prescription of one year applicable to delictual actions. Robinson
argued, inter alia, that his complaint was timely under the doctrine of contra
non valentem. He reasoned that the doctrine applied because he was unable to
bring a § 1983 challenge to Louisiana’s pardon procedures until the Supreme
Court issued its opinion in Wilkinson v. Dotson, 544 U.S. 74 (2005) (holding that
the claims of two state prisoners challenging the validity of state procedures for
determining parole eligibility were properly brought under § 1983 and did not
have to be brought in a habeas proceeding). The district court granted summary
judgment in favor of the movants, and it also dismissed the claims against Cain
and LeBlanc as frivolous.
Robinson does not dispute (1) the district court’s finding that he had actual
or constructive knowledge as early as 1977 that the 1974 constitutional changes
had been applied to his sentence or (2) the district court’s finding that he knew
2
No. 10-30877
or should have known that laws, policies, and practices concerning sentence
commutation that had been enacted or adopted between 1992 and 1994 had been
applied retroactively to his sentence in 1994 when he sought to have it
commuted. Instead, he reiterates his contention that the doctrine of contra non
valentum applies to save his claims from a time-bar dismissal.
Robinson’s reliance on Wilkinson, 544 U.S. 74, is misplaced. We have long
adhered to the rule that Wilkinson later stated for all federal courts. See
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (holding that § 1983 was the
proper vehicle for a prisoner’s challenge, on due process and ex post facto
grounds, to parole procedures that, were the challenge successful, “would not
automatically entitle [him] to accelerated release”); see also Serio v. Members,
Louisiana State Board of Pardons, 821 F.2d 1112, 1118 (5th Cir. 1987). Thus,
Robinson has failed to show that prescription had not run on his claims when he
filed his § 1983 action in 2006. See Terrebonne v. Mobil Oil Corp., 310 F.3d 870,
877 (5th Cir. 2002).
Additionally, a failure to reach a result desired by a prisoner-grievant is
not a deprivation of due process. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005). Also, the failure to allege wrongdoing by LeBlanc left no arguable legal
or factual basis for holding him liable. See § 1915(e)(2)(B)(i). Accordingly, the
district court did not abuse its discretion in dismissing these claims as frivolous.
See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Robinson has not shown that his appeal is taken in good faith, i.e., that it
presents a nonfrivolous issue. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). A nonfrivolous issue is one that does not “lack an arguable basis in law
or fact.” Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). Accordingly, we
must deny Robinson’s IFP motion, see Carson, 689 F.2d at 586, and dismiss this
appeal. See 5TH CIR. R. 42.2.
3
No. 10-30877
The dismissal of this appeal counts as a strike for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Robinson is
cautioned that if he accumulates three strikes under § 1915(g) he will be unable
to proceed IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
MOTION TO PROCEED IFP DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.
4
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17-1873-cv(L)
Chalco v. Belair et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 20th day of June, two thousand eighteen.
PRESENT:
PIERRE N. LEVAL,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________________________________
RENE CHALCO,
Plaintiff-Appellee,
v. Nos. 17-1873-cv,
17-1879-cv
CHRISTOPHER BELAIR, ROBERT MADORE, RYAN HOWLEY,
and ANDREW KATKOCIN,
Defendants-Appellants.
______________________________________________
FOR PLAINTIFF-APPELLEE: BEVERLEY ROGERS (Jennifer Cranstoun, on
the brief), Beverley Rogers Law Offices,
LLC, Ridgefield, CT.
1
FOR DEFENDANT-APPELLANT THOMAS R. GERARDE (Beatrice S. Jordan
BELAIR: on the brief), Howd & Ludorf, LLC,
Hartford, CT.
FOR DEFENDANTS-APPELLANTS MICHAEL CONROY, Hassett & George,
HOWLEY, MADORE, and KATKOCIN P.C., Simsbury, CT.
Appeal from a June 1, 2017, decision of the United States District Court for the
District of Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal of Defendants-Appellants Robert Madore, Ryan Howley,
and Andrew Katkocin, docket number 17-1879-cv, is DISMISSED, the decision of the
district court as to Defendant-Appellant Christopher Belair, docket number 17-1873-cv, is
AFFIRMED in part, and the case is REMANDED for further proceedings.
Defendants-Appellants, who are officers in the City of Danbury Police Department,
brought these interlocutory appeals from the decision of the district court denying their
motions for summary judgment with respect to Plaintiff-Appellee Rene Chalco’s claims
pursuant to 42 U.S.C. § 1983. Defendants-Appellants contend the district court should
have concluded they were entitled to qualified immunity. We assume the parties’
familiarity with the underlying facts, the record of the prior proceedings, and issues on
appeal, and repeat them here only as necessary to explain our decision.
At around 1:00 a.m. on March 8, 2013, Officers Belair, Madore, Howley, and
Katkocin conducted a traffic stop of a car Chalco was driving in Danbury, Connecticut.
According to Chalco, he had skidded through a stop sign because it was snowing heavily
that night. The officers concluded that Chalco had been drinking and that Chalco lacked
a valid driver’s license. Officer Madore issued Chalco a summons for operating a vehicle
without a license and failing to obey a stop sign. The officers did not conduct a field
sobriety test or breathalyzer test, nor did they issue Chalco a summons for driving while
intoxicated.
Throughout the traffic stop, Chalco complied with the officers’ instructions. At
one point, Officer Belair threatened him, swore at him, and punched him in the face,
striking his lips and nose.1 Chalco began to bleed from his face enough that he was
swallowing blood, which later began to drip onto his clothing. Chalco did not receive
1
Chalco testified that Belair stated he was upset because Belair concluded that Chalco was intoxicated and
said his family member had been the victim of an intoxicated motor vehicle operator.
2
medical treatment at the scene. The officers did not arrest Chalco, and permitted him to
leave after giving him a traffic ticket. However, the officers had Chalco’s car towed and
Chalco had to walk home in the snow, which took about an hour.
Officer Belair claims he neither punched Chalco nor made any physical contact with
him at any time during the traffic stop, and that Chalco exhibited no signs that he had been
injured in any way.
Chalco filed the operative, First Amended Complaint, on December 9, 2015 (the
“FAC”). The FAC asserted a claim for excessive force under 42 U.S.C. § 1983, and state
law claims for assault, battery, and intentional infliction of emotional distress against
Officer Belair. The FAC also asserted a claim against all four Defendants-Appellants
under § 1983 for “deliberate indifference to medical needs,” citing the Fourteenth
Amendment and alleging that “[t]he conduct of all Defendants in failing to summon
medical assistance” violated Chalco’s rights. App. at 21. Only the federal constitutional
claims are the subject of this appeal.
Defendants-Appellants moved for summary judgment on November 28 and 30,
2016. Officer Belair filed his own motion, and the three other defendants filed a joint
motion. Officer Belair argued, among other things, that he was entitled to qualified
immunity on both of the § 1983 claims against him. In support of his motion, Belair
submitted a statement of undisputed facts pursuant to the District of Connecticut’s Local
Civil Rule 56(a)(1), which asserted that he did not strike, assault, or injure Chalco at any
time. Officers Madore, Howley, and Katkocin did not assert qualified immunity in their
motion for summary judgment. After being granted an extension of time, Chalco timely
opposed the motions on January 4, 2017, but filed his statement of facts in opposition to
summary judgment, required by the District of Connecticut’s Local Civil Rule 56(a)(2),
almost two weeks late, on January 17, 2017.
The district court denied the motions for summary judgment on June 1, 2017. The
court noted the late filing of Chalco’s Rule 56(a)(2) statement, but stated that it would still
consider “facts asserted in [Chalco’s] Opposition where they are supported by timely-filed
evidence elsewhere in the record.” App. at 197–98. The court cited Chalco’s deposition
and other record materials in support of Chalco’s contention that Officer Belair punched
him in the face during the traffic stop and other factual claims made by Chalco.
As to Chalco’s excessive force claim against Belair, the district court concluded that
summary judgment was not warranted because there was a genuine dispute of material fact
as to whether Belair punched Chalco, and there was no evidence to support the proposition
3
that any use of force would have been reasonable. As to Chalco’s claim for deliberate
indifference to his medical needs, the court noted that Chalco was not a pretrial detainee
when Defendants-Appellants allegedly deprived him of medical treatment, but found that
Chalco raised a genuine dispute of material fact as to whether Defendants-Appellants
violated Chalco’s Fourteenth Amendment rights by towing his car and leaving him on the
side of the road in a snowstorm, under a state-created danger theory.2 App. at 205–08
(citing Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)). The district court’s decision
did not address qualified immunity as to any defendant or any claim.
Officer Belair filed an interlocutory appeal of the denial of summary judgment on
June 12, 2017, which was assigned docket number 17-1873-cv here. Separately, on the
same day, Officers Madore, Howley, and Katkocin filed an interlocutory appeal of the
denial of summary judgment, which was assigned docket number 17-1879-cv here.
These appeals have been consolidated and are decided here together.
We “may determine whether a defendant is entitled to qualified immunity on
stipulated facts . . . or on the facts favorable to the plaintiff . . . .” Bolmer v. Oliveria, 594
F.3d 134, 141 (2d Cir. 2010) (internal citation and quotation marks omitted).
First, the appeal must be dismissed as to Officers Madore, Howley, and Katkocin.
These Defendants-Appellants did not plead qualified immunity as an affirmative defense3
or move for summary judgment on qualified immunity grounds before the district court,
and the district court did not address qualified immunity with respect to them in its June 1,
2017, opinion. See Blissett v. Coughlin, 66 F.3d 531, 539 (2d Cir. 1995) (“The defendant
bears the burden of pleading and proving the affirmative defense of qualified immunity.”).
Thus, as to these Defendants-Appellants, there is no denial of qualified immunity for us to
review, and we lack jurisdiction to consider any other aspect of the district court’s denial
of summary judgment to these Defendants-Appellants on interlocutory appeal.
As to Officer Belair, the district court’s failure to consider his qualified immunity
defense does not deprive us of jurisdiction. See Ford v. Moore, 237 F.3d 156, 161 (2d
Cir. 2001). Unlike the other officer defendants, Belair properly raised the defense in his
summary judgment motion, so the district court effectively denied Belair qualified
immunity even though it did not explicitly consider it. See id.
2
The “state-created danger” theory was not articulated in the FAC.
3
The district court docket does not reflect that Defendants-Appellants filed any answers at all in this case,
as required by Rule 8(b) of the Federal Rules of Civil Procedure.
4
However, Officer Belair’s appeal fails because he has not shown that he is entitled
to qualified immunity on the evidence favorable to Chalco. The gravamen of Belair’s
argument is that Chalco’s failure to submit a Rule 56(a)(2) statement means that Belair’s
version of events—that he did not strike or use any force on Chalco—is undisputed, and
that he is entitled to qualified immunity based on that version of events. Belair does not
argue that, even if he did strike or use force on Chalco as Chalco claims, he is entitled to
qualified immunity. Nor does Belair argue that the district court had no basis in the record
to conclude that he did use force against Chalco.
The District of Connecticut’s Local Civil Rule 56(a) implements Federal Rule of
Civil Procedure 56(c)(1)’s requirement that parties to a summary judgment motion must
support their assertions with record evidence. Local Civil Rule 56(a)(1) requires the
movant to set forth, in separately numbered paragraphs that cite record evidence, “a concise
statement of each material fact as to which the moving party contends there is no genuine
issue to be tried.” D. Conn. L. Civ. R. 56(a)(1). Local Civil Rule 56(a)(2) requires the
party opposing the motion to file paragraph-by-paragraph responses admitting or denying
the facts set forth in the movant’s Rule 56(a)(1) statement, as well as a section containing
“Additional Material Facts” supported by record evidence that “the party opposing
summary judgment contends establish genuine issues of material fact precluding judgment
in favor of the moving party.” D. Conn. L. Civ. R. 56(a)(2).
Although a district court is under no “obligation . . . to perform an independent
review of the record to find proof of a factual dispute” if the non-moving party fails to
designate specific facts showing a genuine dispute of material fact, Amnesty Am. v. Town
of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002), it may nevertheless perform such a
review if it so chooses, see Fed. R. Civ. P. 56(c)(3); Holtz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir. 2001) (holding that a court “may in its discretion opt to conduct an assiduous
review of the record even where one of the parties has failed to file” the Southern District
of New York equivalent of a Rule 56(a)(2) statement (internal quotation marks omitted)).
That is what the district court did here: it undertook an independent review of the summary
judgment materials and concluded there was sufficient evidence to create a genuine dispute
of material fact about whether Officer Belair punched Chalco. We see no error in the
district court’s evaluation of these materials.
Taking the evidence in the light most favorable to Chalco, as we must, with no
justification Belair punched Chalco in the mouth hard enough to draw blood, which
violated clearly established law. See Graham v. Connor, 490 U.S. 386, 396–97 (1989).
Accordingly, Belair has failed to show entitlement to qualified immunity with respect to
the excessive force claim.
5
Officer Belair also argues that the district court erred when it effectively denied him
qualified immunity as to the deliberate indifference claim because Chalco was not a pretrial
detainee, his injury was not sufficiently serious to support a constitutional violation, and
Belair had no way to know Chalco needed medical attention. As for the state-created
danger theory articulated in the district court’s opinion, Belair argues that, even under
Chalco’s version of events, the failure to provide Chalco transportation home in a
snowstorm was not a state-created danger because there was no affirmative act increasing
Chalco’s risk of harm, and in any event, he did not violate clearly established law.
We observe that there is a substantial question whether the allegations of the FAC
or the evidence presented at summary judgment would support claims for “deliberate
indifference” or “state-created danger.” However, because the district court never
addressed qualified immunity below, we remand the case with instructions to rule on these
matters, if properly raised before the district court. See Francis v. Coughlin, 849 F.2d
778, 780 (2d Cir. 1988). In particular, remand is warranted here because the district
court’s decision raised the state-created danger theory sua sponte, and thus the parties did
not have an opportunity below to brief the issue of qualified immunity on that theory.
* * *
We have considered the parties’ remaining arguments and conclude that they do not
alter the disposition of these appeals. Accordingly, we DISMISS the appeal of Madore,
Howley, and Katkocin; we AFFIRM the district court’s denial of qualified immunity as to
the excessive force claim against Belair; and we REMAND the case for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
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Order Michigan Supreme Court
Lansing, Michigan
February 7, 2011 Robert P. Young, Jr.,
Chief Justice
141677 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 141677
COA: 290353
Berrien CC: 2008-402683-FC
VICTOR LAMONT BRADLEY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 1, 2010
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 7, 2011 _________________________________________
s0131 Clerk
|
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67 Cal.Rptr.3d 552 (2007)
156 Cal.App.4th 574
The PEOPLE, Plaintiff and Respondent,
v.
Clifton Lee RICHARDSON, Defendant and Appellant.
No. C049702.
Court of Appeal of California, Third District.
October 29, 2007.
*554 Curt R. Zimansky, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Supervising Deputy Attorneys General, Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.
*553 ROBIE, J.
Penal Code[1] section 859a authorizes a magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. The question here is whether a defendant who takes advantage of this certified plea process after the magistrate has denied his or her motion to suppress at the preliminary examination can thereafter seek appellate review of the magistrate's ruling on the search and seizure issue. We agree with People v. Garrido (2005) 127 Cal. App.4th 359, 25 Cal.Rptr.3d 494 that the answer to that question is "no." Under the rule from People v. Lilienthal (1978) 22 Cal.3d 891, 150 Cal.Rptr. 910, 587 P.2d 706, if a defendant wants to seek appellate review of a search and seizure issue, he or she must raise that issue before a superior court judge acting in that capacity. As we will explain, if a defendant pleads guilty in front of a superior court judgeor anyone elseacting as a magistrate, there is no way the defendant can renew his or her suppression motion or otherwise raise the search and seizure issue in the superior court. Accordingly, appellate review of a search and seizure issue pursuant to section 1538.5, subdivision (m) (section 1538.5(m)) is barred when the certified plea process is used. This result is consistent with the purpose of that process, which is to provide for the expeditious resolution of felony cases.
Here, defendant Clifton Lee Richardson's claim that the magistrate erred in *555 denying his suppression motion is subject to the foregoing analysis; we cannot reach that issue because defendant pled guilty in front of the magistrate under section 859a after his motion to suppress was denied. Moreover, we cannot review defendant's alternate claim that he was denied effective assistance of counsel because his attorney failed to preserve the denial of his suppression motion for appellate review because that claim is outside the limited issues that are reviewable on appeal from a conviction following a guilty plea. Accordingly, we will dismiss this appeal without prejudice to any rights defendant may have to relief by way of a petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL
BACKGROUND
On February 25, 2005, defendant was stopped by police and found in possession of a syringe containing heroin. Three days later, he was charged by complaint with a felony count of possession of heroin and a misdemeanor count of unauthorized possession of a syringe.
In advance of the preliminary examination, defendant filed a motion to suppress on the ground he had been illegally detained prior to discovery of the syringe. On the date set for the preliminary examination, Judge Michael Garrigansitting as a magistratefirst heard the motion to suppress. Upon concluding "it was reasonable for the officer to act as he did," Judge Garrigan denied the suppression motion and was prepared to proceed with the preliminary examination. At that point, however, defense counsel announced that defendant would "be entering a plea of guilty for Prop 36." The prosecutor clarified that the plea would be to the possession of heroin charge only. After taking the plea, Judge Garrigan asked defense counsel whether it was defendant's "[i]ntention to proceed with pronouncement of judgment," and she said it was. Defendant then waived his right to a probation report, and Judge Garrigan immediately suspended imposition of sentence and placed defendant on probation under Proposition 36. The charge of possessing a syringe was dismissed on the prosecution's motion "in light of the plea."
Defendant subsequently filed a notice of appeal without a certificate of probable cause based on the denial of his suppression motion.[2]
DISCUSSION
I
Appellate Review Of The Denial Of The Motion To Suppress
Defendant contends Judge Garrigan erred in denying his motion to suppress because the police detained him without reasonable suspicion. Before we can address that contention, however, we must determine whether Judge Garrigan's denial of defendant's motion to suppress is reviewable on appeal, given that the judge was acting as a magistrate, rather than as a superior court judge, when he ruled on that motion. The answer to that question depends on whether the rule from People v. Lilienthal, supra, 22 Cal.3d at page 891, 150 Cal.Rptr. 910, 587 P.2d 706 applies under the circumstances of this case. For *556 the reasons that follow, we conclude it does and therefore the denial of defendant's suppression motion is not reviewable.
A
The Lilienthal Rule
A defendant can obtain appellate review of a search and seizure issue only if "at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." (§ 1538.5(m).) In Lilienthal a majority of our Supreme Court concluded this condition was not satisfied simply because the defendant moved to suppress evidence at the preliminary examination, even though the preliminary examination might otherwise appear to be "some stage of the proceedings prior to conviction." (People v. Lilienthal, supra, 22 Cal.3d at pp. 895-897, 150 Cal.Rptr. 910, 587 P.2d 706.)
In Lilienthal, the defendant unsuccessfully moved to suppress at the preliminary examination and was held to answer on all charges. (People v. Lilienthal, supra, 22 Cal.3d at p. 895, 150 Cal.Rptr. 910, 587 P.2d 706.) "In the superior court, defendant moved to dismiss the information pursuant to section 995 on the ground that the only substantial evidence supporting the commitment was obtained in violation of the Fourth Amendments[3]] The motion was denied." (Ibid.) The defendant then pled guilty to one charge, the remaining charges were dismissed on the People's motion, and the court granted the defendant probation after imposing, but suspending execution of, a prison term. (Lilienthal, at p. 895, 150 Cal.Rptr. 910, 587 P.2d 706.)
On appeal, the defendant sought review of the search and seizure issue only. (People v. Lilienthal, supra, 22 Cal.3d at p. 895, 150 Cal.Rptr. 910, 587 P.2d 706.) The People argued the defendant was "not entitled to appellate review under section 1538.5, subdivision (m) because he pleaded guilty without renewing his motion to suppress in the superior court." (Lilienthal, at p. 895, 150 Cal.Rptr. 910, 587 P.2d 706.) A majority of our Supreme Court agreed that the statute "should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal." (Id. at p. 896, 150 Cal.Rptr. 910, 587 P.2d 706; see also id. at p. 901, 150 Cal.Rptr. 910, 587 P.2d 706 (conc. opn. of Bird, C.J.).) The court went on to conclude, however, that the search and seizure issue could be raised in the superior court either by way of a renewed motion to suppress under subdivision (i) of section 1538.5 or by way of a motion to set aside the information under section 995. (People v. Lilienthal, supra, 22 Cal.3d at p. 897, 150 Cal.Rptr. 910, 587 P.2d 706.)
The explanation the Lilienthal court gave for why only proceedings in the superior court could be considered "some stage of the proceedings prior to conviction" within the meaning of section 1538.5(m) was that "it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention."[4] (People v. Lilienthal, *557 supra, 22 Cal.3d at p. 896, 150 Cal. Rptr. 910, 587 P.2d 706.) To fully understand this explanation, it is necessary to understand the role magistrates play in the prosecution of felonies in California.
In California, "[a]ll felonies shall be prosecuted by indictment or information." (§ 737.) Before an information is filed, however, "there must be a preliminary examination of the case against the defendant and an order holding him to answer." (§ 738.) It is the role of a magistrate to conduct the preliminary examination and determine whether probable cause exists to hold the defendant to answer. (§ 872.) "A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense."[5] (§ 807.)
It has long been understood that "[magistrates presiding at preliminary hearings do not sit as judges of courts, and exercise none of the powers of judges in court proceedings." (People v. Newton (1963) 222 Cal.App.2d 187, 189, 34 Cal. Rptr. 888.) More than 100 years ago, our Supreme Court explained that "[a] superior judge, when sitting as a magistrate, possesses no other or greater powers than are possessed by any other officer exercising the functions of a magistrate. The justices of this court, judges of the superior courts, justices of the peace and police magistrates in cities and towns are each and all by the statute made magistrates. [Citation.] The office is purely a statutory one, and the powers and duties of the functionary are solely those given by the statute; and those powers are precisely the same whether exercised by virtue of one office, or that of another. The statute makes no sort of distinction between them. If a judge of a superior court, or a justice of this court, sees fit to assume the duties of a committing magistrateduties which are usually performed by othershe has no greater authority as such magistrate than that possessed by any justice of the peace or police judge." (People v. Cohen (1897) 118 Cal. 74, 78, 50 P. 20.)
Based on this understanding of the role of magistrates, the Supreme Court in Lilienthal essentially rejected the idea that a judgment of conviction for a felony imposed by a superior court could be challenged on appeal based on an error made by the committing magistrate at the preliminary hearing. Only if the defendant raised the search and seizure issue in the superior courti.e., at some point after the preliminary proceedings before the magistratecould the defendant be deemed to have raised that issue "at some stage of the proceedings prior to conviction" as required for appellate review of the issue under section 1538.5(m).
Interestingly enough, a more thorough explanation of the rationale for the rule the Supreme Court adopted in Lilienthal can be found in a decision by Division *558 Four of the Court of Appeal, Second Appellate District that preceded Lilienthal by a little more than a year. (Ramis v. Superior Court (1977) 74 Cal.App.3d 325, 141 Cal.Rptr. 374.) In Ramis, as in Lilienthal, the defendant unsuccessfully moved to suppress at the preliminary examination and was held to answer, then later pled guilty in the superior court. (Ramis v. Superior Court, supra, 74 Cal. App.3d at p. 328, 141 Cal.Rptr. 374.) Unlike in Lilienthal, however, he did not move to set aside the information nor did he renew his motion to suppress before trial. (Ramis, at p. 328, 141 Cal.Rptr. 374.)
In a subsequent writ proceeding in the appellate court, the court faced "the question [of] whether subdivision (m) of section 1538.5 authorizes an appeal, after a guilty plea, where the search issue was raised only in the municipal court at the preliminary hearing." (Ramis v. Superior Court, supra, 74 Cal.App.3d at p. 330, 141 Cal. Rptr. 374.) The defendant argued that "the word `proceedings' [in section 1538.5(m) ] includes the preliminary examination." (Ramis, at p. 332, 141 Cal.Rptr. 374.) The appellate court disagreed, concluding that "[t]hat interpretation would run counter to two basic and long established principles of efficient judicial administration. [¶] The first principle is that, except in extraordinary circumstances, a litigant is not permitted to bypass a remedy in a lower court and reserve his grievance for submission to a higher court. [Citations.] Any violation of that principle would operate to transfer a part of the caseload of the trial courts to the appellate courts. [If] The second general principle, closely related to the first, is that an appeal brings before the appellate court for review only those matters which were before the lower court when it made its' decision. .[Citations:.] One application of that principle is that, on appeal from a superior court judgment, the appellate court does not review the preliminary examination unless it was attacked in the superior court by a motion under Penal Code section 995." (Ibid.)
The Ramis court went on to explain that section 1538.5(m) "serves a valuable purpose in cases where the defendant has no defense other than his motion to suppress. The procedure intended is that defendant will make his motion to suppress in the superior court and, if the motion is denied, plead guilty and take his appeal. Subdivision (m) saves the delay and expense of a needless trial by providing that the guilty plea does not bar appellate review of the single litigated issued But no good purpose would be served by encouraging a defendant to bypass a superior court decision on the search and seizure issue. If a defendant has a meritorious objection to evidence, he should make it in the superior court so that he may not need an appeal." (Ramis v. Superior Court, supra, 74 Cal. App.3d at pp. 332-333, 141 Cal.Rptr. 374.)
B
The Lilienthal Rule In The Wake Of Trial Court Unification
The Lilienthal rule went largely unquestioned for 20 yearsthen came trial court unification. In June 1998, the electorate adopted Proposition 220, "which had the effect of empowering each county to abolish the municipal court in that county by merging its judges and resources into the superior court." (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1101, 27 Cal.Rptr.3d 741.) Shortly thereafter, the Legislature enacted numerous statutory changes to allow for unification. (Stats. 1998, ch. 931.)
Because preliminary examinations were traditionally conducted by municipal court judges sitting as magistrates, the elimination *559 of the municipal court raised the idea that the basis for the Lilienthal rule had disappeared along with the municipal court. This issue was first addressed in People v. Hart (1999) 74 Cal.App.4th 479, 86 Cal.Rptr.2d 762. In Hart, the committing magistratea judge of the unified superior and municipal court in Sacramento Countydenied the defendant's motion to suppress at the preliminary examination. (Id. at pp. 483-484, 86 Cal.Rptr.2d 762.) The case was later tried before a different judge of the same court, but the defendant did not renew his suppression motion. (Id at p. 484, 86 Cal.Rptr.2d 762.) On appeal from the judgment of conviction, defendant sought review of the search and seizure issue. (Id. at p. 483, 86 Cal. Rptr.2d 762.) This court concluded that despite the unification of the municipal and superior courts, "The defendant failed to preserve the issue [for appellate review] because she did not raise the issue at trial." (Id. at p. 485, 86 Cal.Rptr.2d 762.) The court explained its ruling as follows: "Even though [the two judges] both sat on the Sacramento Superior and Municipal Court, [the first judge] functioned in this case as a committing magistrate, not as a trial judge. The distinction is not artificial and inconsequential. The magistrate serves a function different from the function of the trial judge. While the magistrate makes a determination of probable cause in connection with the preliminary hearing [citation], the trial judge may review the magistrate's finding of probable cause and reverse it [citation]. [¶] Even though the voters and Legislature have made it possible for judges to serve in either role, the roles are still distinct and take place at different levelsthat is, the magistrate makes determinations reviewable by the trial judge. When we undertake review of a case, we are reviewing the actions of the trial judge who had the ability to review the findings of the magistrate. [Citation.] Accordingly, the possibility that the magistrate and the trial judge are judges of the same court does not affect our analysis under [Lilienthal]."[6] (People v. Hart, supra, 74 Cal. App.4th at pp. 485-486, 86 Cal.Rptr.2d 762.)
In essence, the Hart court concluded that trial court unification had no effect on the Lilienthal rule because unification did not change the distinct roles of magistrates and trial court judges in the prosecution of felonies.
Two years after Hart, the effect of trial court unification on the Lilienthal rule was addressed again in People v. Hoffman (2001) 88 Cal.App.4th 1, 105 Cal.Rptr.2d 372. In Hoffman, as in Hart, the committing magistrate denied the defendant's motion to suppress at the preliminary examination. (People v. Hoffman, supra, 88 Cal. App.4th at p. 2, 105 Cal.Rptr.2d 372.) After being charged by information, the defendant pled guilty without renewing his motion to suppress. (Ibid.) On appeal, he sought review of the magistrate's ruling, but Division Three of the Court of Appeal, Fourth Appellate District concluded he had "waived his right to appeal by failing to renew his suppression motion before the trial judge." (Ibid.) The Hoffman court "agree[d] with the result reached in Hart, but for a different reason: the constitutional amendment creating a unified court system specifically provided for trial court review of preliminary hearing suppression *560 motions." (Hoffman, at p. 3, 105 Cal. Rptr.2d 372.)
What the Hoffman court was referring to was former section 23 of article VI of the California Constitution, which had been added in 1998 by Proposition 220 at the outset of the trial court unification process.[7] Subdivision (c) of that section provided in pertinent part that "[e]xcept as provided by statute to the contrary, in any county in which the superior and municipal courts become unified ... [¶] ... [¶] (7) Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a municipal court judge shall be performed by a superior court judge other than the judge who originally made the ruling or order." As the Hoffman court noted, the purpose of subdivision (c)(7) was to "preserve[ ] single judge review of preliminary criminal matters under Penal Code Sections 995 (setting aside indictment or information) and 1538.5 (motion to suppress). (Trial Court Unification: Constitutional Revision (SCA 3) (Jan.1994) 24 Cal. Law Revision Com. Rep. (1994) pp. 1, 83.)" (People v. Hoffman, supra, 88 Cal.App.4th at p. 3, 105 Cal.Rptr.2d 372)
In essence, the Hoffman court concluded that this constitutional provision recognized the continuing vitality of the Lilienthal rule in the wake of trial court unification, the only difference being that review of the magistrate's ruling would have to be by a different superior court judge than the one who served as the magistrate, unless the Legislature enacted a statute providing otherwise. (See People v. Hoffman, supra, 88 Cal.App.4th at p. 3, 105 Cal.Rptr.2d 372.)
In fact, the Legislature did enact such a statutesection 859c. (See Stats. 1998, ch. 931, § 370, p. 199.) Section 859c largely parallels the former constitutional provision, requiring that "superior court review of a challenged ruling or order made by a superior court judge or magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order," but it contains an important exception"unless agreed to by the parties." (§ 859c, italics added.) Thus, section 859c authorizes the parties to agree that a ruling made by a superior court judge sitting as a magistrate can later be reviewed by the same judge.
The next published case in this area is People v. Hinds (2003) 108 Cal.App.4th 897, 134 Cal.Rptr.2d 196. As in Hoffman, without renewing his motion to suppress, the defendant in Hinds pled guilty in the superior court after being charged by information following the denial of his motion to suppress at the preliminary examination. (People v. Hinds, supra, 108 Cal. App.4th at pp. 899-900, 134 Cal.Rptr.2d 196.) Citing Hart and Hoffman, this court held that trial court unification had not obviated the Lilienthal rule.[8] (People v. Hinds, supra, 108 Cal.App.4th at p. 900, 134 Cal.Rptr.2d 196.)
The most recent published case on this subject is People v. Garrido, supra, 127 Cal.App.4th at page 359, 25 Cal.Rptr.3d *561 494. In Garrido, the defendant unsuccessfully moved to suppress at a conference before the preliminary examination. (Id. at p. 362, 25 Cal.Rptr.3d 494.) Later that same day, the defendant pled guilty before the magistrate, and the case was certified to the superior court for sentencing. (Id. at pp. 362-363, 25 Cal.Rptr.3d 494.) At the sentencing hearing, the court suspended imposition of sentence and granted the defendant probation. (Id. at p. 361, 25 Cal.Rptr.3d 494.) When the defendant sought appellate review of the magistrate's denial of her suppression motion, Division One of the Court of Appeal, Fourth Appellate District concluded that "Lilienthal continues to apply postunification because the California Constitution, [former] article VI, section 23, subdivision (c) ... specifically provides for superior court review of preliminary hearing suppression motions. [Citation.] The rationale for continuing to apply Lilienthal after unification is based on the distinct roles assigned to the magistrate and the superior court." (People v. Garrido, supra, 127 Cal.App.4th at p. 364, 25 Cal.Rptr.3d 494.)
Based on the foregoing, the consensus is that the Lilienthal rule continues to apply even in the wake of trial court unification because that rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judgesa distinction that remains valid even following unification.
C
The Present Case
That brings us to the present case. Of the four published cases addressing the Lilienthal rule in the wake of trial court unification, this case is most like Garrido. As in Garrido (and unlike in Hart, Hoffman, and Hinds), defendant here was never held to answer, and no information was ever filed. Instead, he pled guilty before the magistrate after the magistrate's denial of his suppression motion.
This case is not entirely like Garrido, however, because while the magistrate in Garrido certified the case to the superior court,[9] it does not appear Judge Garrigan did so here. The question is whether that distinction makes any difference for purposes of defendant's right to seek appellate review of the magistrate's denial of his suppression motion. To answer that question, we need to understand what it means to "certify" a case to the superior court under section 859a.
Section 859a provides that in the case of "a felony not punishable with death," "the defendant may plead guilty to the offense charged" "[w]hile the charge remains pending before the magistrate." (§ 859a, subd. (a).) The statute further provides that "[u]pon accepting the plea of guilty or nolo contendere, the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b)." (Ibid.) Subdivision (b) of the statute requires the magistrate to "immediately appoint a time for pronouncing judgment in the superior court." (§ 859a, subd. (b).) Thus, section 859a requires the magistrate to certify the case to the superior court so that that court can pronounce judgment.
*562 In this context, the word "certify" means "[t]o attest as being true."[10] (Black's Law Diet. (7th ed.1999) p. 220, col. 2.) By certifying the case, the magistrate essentially vouches or verifies to the superior court that the documents in the file (e.g., the complaint, the plea form) and, to the extent applicable, the record of any testimony that was given, are true and correct. Thus, certification serves as the transition point between the preliminary proceedings before the magistrate and the subsequent proceedings in the superior court. Indeed, upon certification, "the proceedings shall be had as if the defendant had pleaded gailty in that court," i.e., the superior court to which the case has been certified. (§ 859a, subd. (a); see also People v. Nation (1952) 108 Cal.App.2d 829, 830-831, 239 P.2d 891 [noting that the procedure authorized by section 859a is "in lieu of preliminary examination and holding over, followed by the filing of an information"]; § 804, subds. (a), (c) [for statute of limitations purposes, prosecution of a felony is commenced when (among other things) "[a]n indictment or information is filed" or "[a] case is certified to the superior court"].)
It does not appear any such certification happened here. After accepting defendant's guilty plea, Judge Garrigan, acting with the explicit consent of defense counsel and the tacit consent of the prosecutor, proceeded immediately to the pronouncement of judgment without a probation report. No statement was made that the case was certified to the superior court, and no order of certification appears in the clerk's transcript. Moreover, the "Preliminary Hearing Minutes" form that does appear in the clerk's transcriptwhich records the denial of the suppression motion, the change of plea, the waiver of a probation report, and the grant of probationmakes no mention of certification.
The question is whether the absence of certification here distinguishes this case from Garrido in any material way. Defendant contends it does. He argues that because "no ... certification occurred," he was left "with no superior court trial judge proceedings before which to raise the [search and seizure] issue." In his view, that means the suppression motion he made before the magistrate was sufficient to preserve his right to appellate review of the search and seizure issue because all of the proceedings in this case took place before a magistrate, and therefore his suppression motion should be deemed to have been made "`at some stage of the proceedings prior to his conviction'" within the meaning of section 1538.5(m).
We reject defendant's argument because we believe Judge Garrigan was acting as a superior court judge when he granted defendant probation, even though he did not certify the case to the superior court. The law does not require idle acts. (Civ.Code, § 3532; People v. Espana (2006) 137 Cal. App.4th 549, 553, 40 Cal.Rptr.3d 258.) Where, as here, the superior court judge who acted as the magistrate in the preliminary proceedings immediately proceeds (with the explicit or tacit consent of the parties) to undertake the pronouncement of judgment, it would be pointless for that judge to have to "certify" the case to himselfi.e., verify to himself the accuracy of the record of the proceedings that just occurred in his presencebefore he is allowed to proceed with the case. Moreover, while certification generally serves as *563 the transition point between the preliminary proceedings before the magistrate and the proceedings in the superior court, we know of no reason why certification which would otherwise serve no purpose would be necessary to empower a superior court judge who had been sitting as a magistrate to begin acting as a superior court judge. At all times, even while acting as a magistrate, Judge Garrigan remained a superior court judge. Although he did not have the powers of a superior court judgeincluding the power to pronounce judgmentwhile he acted as a magistrate, he was entitled to move seamlessly from the role of magistrate to the role of superior court judge without any "magic words" as soon as the parties agreed to proceed immediately with the pronouncement of judgmentan act Judge Garrigan could undertake only in the exercise of his powers as a superior court judge.
Thus, the absence of certification does not distinguish this case in any material way from Garrido. In both cases, the defendants used the certified plea process to plead guilty in front of the magistrate, then sought appellate review of the magistrate's ruling without ever having raised the search and seizure issue in the superior court. The court in Garrido concluded that appellate review was barred under these circumstances by the Lilienthal rule. For the reasons that follow, we agree.
As we have explained, the Lilienthal rule requires a defendant to raise the search and seizure before a superior court judge acting as a superior court judge to preserve that issue for appellate review. As will be seen, this requirement cannot be met when the defendant takes advantage of the certified plea process and pleads guilty before the magistrate following the denial of his suppression motion at the preliminary examination.
Section 1538.5(m) expressly provides that "[t]he proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her." (Italics added.) A review of the pertinent statutes reveals that they do not provide any way for a defendant who has pled guilty to a felony before a magistrate under section 859a to raise a search and seizure issue in the superior court.
In felony cases initiated by complaint, section 1538.5 allows motions to suppress to be filed: (1) "at the preliminary examination" (§ 1538.5, subd. (f)); (2) "at a special hearing" "prior to trial" when "the defendant was held to answer at the preliminary hearing" (id., subd. (i)); and (3) "during the course of trial" when "opportunity for th[e] motion did not exist or the defendant was not aware of the grounds for the motion" "prior to the trial" (id., subd. (h)).
A defendant who pleads guilty before the magistrate under section 859a cannot use the second option to raise the suppression motion in the superior court because such a defendant is not held to answer, and there will never be a trial for the special hearing to be held "prior to." Likewise, such a defendant cannot use the third option because, again, there will never be a trial. Consequently, section 1538.5 provides no way for a defendant who pleads guilty in front of a magistrate to renew a suppression motion in the superior court. As defendant himself acknowledges, a defendant who pleads guilty under section 859a "enter[s] proceedings *564 before the superior court trial judge only for purposes of sentencing."
Section 995 provides no recourse either. Under that statute (as we have previously noted), a defendant can move to set aside an information if he; has been committed i.e., held to answerwithout reasonable or probable cause because the only substantial evidence supporting his commitment was obtained in violation of the Fourth Amendment. (§ 995, subd. (a)(2)(B); People v. Scoma, supra, 71 Cal.2d at p. 335, 78 Cal.Rptr. 491, 455 P.2d 419.) A defendant who pleads guilty under section 859a is not held to answer, and no information is ever filed, so a section 995 motion will not lie.
Section 871.5 governs motions by the prosecutor to compel a magistrate to reinstate a complaint the magistrate has dismissed and thus obviously has no application in the present context. The same is true of section 1238 (which governs the People's right to appeal in felony cases) and section 1466 (which governs the right of both parties to appeal in misdemeanor and infraction cases). In short, the Legislature has not authorized any procedure by which a defendant who pleads guilty under section 859a after losing a suppression motion can renew that motion in the superior court.
In People v. Burns (1993) 20 Cal. App.4th 1266, 25 Cal.Rptr.2d 230, the appellate court imagined "a scenario where, upon agreement of the prosecution and the defense, the certified plea procedure is used with an understanding on the record that before accepting the plea and imposing the bargained-for sentence, the superior court would review the ruling made by the [magistrate], utilizing the record of the suppression hearing there conducted." (Id. at p. 1273, fn. 3, 25 Cal.Rptr.2d 230.) We reject that scenario for two reasons.
First, as we have previously observed, once a guilty plea has been accepted and a time for the pronouncement of judgment in the superior court set under section 859a, further proceedings are to be "had as if the defendant had pleaded guilty in th[e superior] court." (§ 859a, subd. (a).) Thus, contrary to what the Burns court suggested, when the "certified plea procedure is used" the superior court has no occasion to "accept[ ] the plea" at the time set for the pronouncement of judgment (People v. Burns, supra, 20 Cal.App.4th at p. 1273, fn. 3, 25 Cal.Rptr.2d 230); the plea is already deemed by operation of law to have been made in, and accepted by, the superior court.
Second, the Burns court gave no consideration to the provision in section 1538.5(m) that the proceedings provided for in sections 871.5, 995, 1238, 1466, and 1538.5 are "the sole and exclusive remedies prior to conviction" for seeking to suppress evidence based on an alleged Fourth Amendment violation. The statute does not leave open the potential for the parties to create an additional, nonstatutory right to superior court review of a magistrate's denial of a suppression motion when a case comes up for sentencing following a guilty plea pursuant to section 859a.
What this means is that a defendant who has pled guilty before a magistrate following the magistrate's denial of his or her suppression motion cannot raise the search and seizure issue again in the superior court. Thusunless an exception to the Lilienthal rule is recognized in cases involving a guilty plea under section 859aif a defendant who has lost a suppression motion before a magistrate wants to pursue appellate review of the search and seizure issue, he or she cannot plead guilty in front of the magistrate. Instead, he or she must proceed with the preliminary hearing (or waive his or her right to a preliminary hearing) and, after being held to answer, allow an information to be filed *565 (or allow the complaint to be deemed an information). Then, he or she can either move to dismiss the information under section 995 or renew his or her suppression motion before trial under subdivision (i) of section 1538.5 and withhold his or her guilty plea until after his or her motion is denied a second time by the superior court.
Thus, unless we recognize an exception to the Lilienthal rule in cases involving a guilty plea under section 859a, a defendant must choose between pleading guilty under section 859a on the one hand and preserving his or her right to appellate review of a search and seizure issue on the other. The question is whether there is any sound basis for recognizing such an exception.
Defendant has not identified any such basis, and we have not found one ourselves. Although the court's explanation of its rationale may have left something to be desired, our Supreme Court was clear in Lilienthal that "it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." (People v. Lilienthal supra, 22 Cal.3d at p. 896, 150 Cal.Rptr. 910, 587 P.2d 706.) If we were to do what defendant asks us to do here and reverse a felony conviction based on a determination that the magistrate erred in denying the defendant's suppression motion at the preliminary examination, we would be doing exactly what the Supreme Court said in Lilienthal would be "wholly inappropriate."
Furthermore, it does not matter for purposes of applying the Lilienthal rule that the superior court judge whose judgment we would be reversing here was the same judge who ruled on the suppression motion. Under section 859c, defendant had the right to have another superior court judge, acting as a superior court judge, review Judge Garrigan's ruling as a magistrate, but he declined to exercise that right when he pled guilty under section 859a. Having failed to avail himself of that right, he cannot now rely on the fact that the magistrate and the superior court judge in this case were the same person to justify deviating from the Lilienthal rule.
Not only have we failed to discern any sound basis for recognizing an exception to the Lilienthal rule in cases involving a guilty plea under section 859a, we believe the court in Burns, identified a number of sound reasons for not recognizing such an exception. As the Burns court explained, "The certified plea process is, by its nature, intended to short-circuit further judicial proceedings, and the preclusion of a search and seizure issue from being raised on appeal is consistent with that approach." (People v. Burns, supra, 20 Cal. App.4th at p. 1273, 25 Cal.Rptr.2d 230; see also People v. Zolotoff (1941) 48 Cal.App.2d 360, 362, 365, 119 P.2d 745 [the purpose of the constitutional amendment underlying section 859a was to "do away with unnecessary delays and expense in disposing of felony cases wherein the accused desired to enter a plea of guilty"].) "[A] certified plea results in the disposition of a case at a very early stage in the proceedings and thus entails the enhanced prospect of a more favorable disposition of the matter for the defendant. But, consistent with Lilienthal and Ramis, such a concept of judicial economy is illusory if it requires an appellate court to review a search and seizure issue which the trial court never had an opportunity to hear and decide. Moreover, the parties might well envision such a concept as obviating the need of a satisfied defendant, who has received a favorable plea disposition, to bother to appeal." (People v. Burns, supra, 20 Cal. App.4th at p. 1272, 25 Cal.Rptr.2d 230.) "[T]o the extent that a defendant has a *566 meritorious search and seizure claim, `no good purpose would be served by encouraging a defendant to bypass a superior court decision' [citation], and `he should make [an appropriate motion] in the superior court so that he may not need an appeal' [Citation,] As a practical matter, a defendant who obtains a prompt and favorable plea bargain [before the magistrate] loses little by the inability to appeal a search and seizure claim. Indeed, a certified plea enhances the defendant's argument that his prompt plea spares the further use of scarce court resources, including appellate resources, and thus results in additional leverage for the defendant in the plea bargaining process."[11] (Id. at pp. 1272-1273, 25 Cal.Rptr.2d 230.)
Refusing to recognize an exception to the Lilienthal rule in cases involving a guilty plea under section 859a simply means a defendant cannot have his cake and eat it too. After testing the viability of his Fourth Amendment arguments in a motion to suppress before the magistrate and losing, he can choose to either seek a prompt and favorable resolution of the case by pleading guilty under section 859a or pursue his Fourth Amendment arguments in the superior court and on appeal, but he cannot do both.
Here, if defendant had wanted to pursue his Fourth Amendment arguments, he could have declined to plead under section 859a and insisted on his right to have another superior court judge, and ultimately (if necessary) this court, review those arguments. By choosing the plea, he forfeited his right to any further review of his argument that he was illegally detained before the police discovered the heroin-filled syringe on him.
II
Appellate Review Of Defendant's Ineffective Assistance Of Counsel Claim
Because he is barred from arguing the search and seizure issue on appeal by his failure to raise that issue in the superior court, defendant argues in the alternative that he was denied effective assistance of counsel because of his trial counsel's failure to preserve the search and seizure issue for appellate review. We cannot review this argument either, however, because it is beyond the limited issues that are reviewable on appeal from a conviction following a guilty plea.
Under section 1237.5, an appeal from a conviction predicated on a guilty plea requires a certificate of probable cause. "Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the *567 crime and the penalty to be imposed." (.People v. Panizzon (1996) 13 Cal.4th 68, 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)
We have concluded already that defendant is barred by the Lilienthal rule from seeking appellate review of the magistrate's denial of his suppression motion under section 1538.5(m). Thus, we can address his claim of ineffective assistance of counsel argument only if that claim relates to "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon, supra, 13 Cal.4th at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) It does not, and therefore we cannot address it.
To succeed on his claim of ineffective assistance of counsel, defendant would have to show that his "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Duncan (1991) 53 Cal.3d 955, 966, 281 Cal.Rptr. 273, 810 P.2d 131.) As we have explained, the only way defendant could have preserved his right to appellate review of his Fourth Amendment arguments would been to have refused, to plead guilty before the magistrate under section 859a and to have allowed himself to be held to answer, after which he could have filed a motion to set aside the information under section 955 or renewed his motion to suppress under section 1538.5, subdivision (i). Thus, if his trial counsel erred in failing to preserve the search and seizure issue for appellate review, that error clearly did not occur in "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon, supra, 13 Cal.4th at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) Accordingly, we are without power to address defendant's ineffective assistance of counsel claim in the absence of a certificate of probable cause, and defendant must pursue any such claim through a petition for writ of habeas corpus.
DISPOSITION
The appeal is dismissed without prejudice to any rights defendant may have to relief by way of a petition for writ of habeas corpus.
We concur: BLEASE, Acting P.J., and DAVIS, J.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] For purposes of appeal, an order granting probation is deemed a final judgment of conviction from which an appeal may be taken. (§ 1237, subd. (a).) Although an appeal from a judgment of conviction predicated on a guilty plea is generally barred without a certificate of probable cause (§ 1237.5), that is not true when the defendant seeks review of the denial of a suppression motion. (See § 1538.5(m); Cal. Rules of Court, rule 8.304(b).)
[3] Section 995 provides that an information shall be set aside on a defendant's motion if "the defendant had been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) "A defendant is held to answer without reasonable or probable cause within the meaning of section 995 of the Penal Code when the only substantial evidence supporting his commitment has been obtained in violation of the Fourth Amendment." (People v. Scoma (1969) 71 Cal.2d 332, 335, 78 Cal. Rptr. 491, 455 P.2d 419.)
[4] In her concurring opinion, Chief Justice Bird did "not agree with the dictum [in the majority opinion] that a search and seizure issue in a felony case must be litigated in the superior court in order to `preserve the point for review on appeal....'" (People v. Lilienthal, supra, 22 Cal.3d at p. 901, 150 Cal.Rptr. 910, 587 P.2d 706.) In her view, because "a preliminary hearing is a `stage of the proceedings prior to conviction,' a motion to suppress made at that stage is squarely appealable under subdivision (m) [of section 1538.5]. However `inappropriate' the members of this court might believe such a procedure to be, the statute has permitted it. As there is no constitutional impediment to the procedure the Legislature has set forth, this court may not ignore the statute." (People v. Lilienthal, supra, 22 Cal.3d at p. 901, 150 Cal.Rptr. 910, 587 P.2d 706.)
[5] Although now only judges of the Supreme Court, the courts of appeal, and the superior court are magistrates (§ 808), it was not always so. Historically, justices of the peace, city court judges, and municipal court judges were also magistrates. (See former § 808; Stats. 1945, ch. 43, § 1, p. 361.)
[6] The court nonetheless went on to address the merits of the defendant's argument on the search issue in the course of addressing the argument that the defendant's trial counsel was "constitutionally ineffective for failing to preserve the legality of the search as an issue to be considered on appeal." (People v. Hart, supra, 74 Cal.App.4th at p. 486, 86 Cal. Rptr.2d 762.)
[7] This provision was amended in 2002 by Proposition 48 to provide for its repeal effective January 1, 2007 "to reflect completion of the process of unification of the municipal and superior courts." (Cal. Law Revision Com. com. & Historical Notes, 2 West's Ann. Cal. Const. (2007 supp.) art. VI, § 23.) It should be noted, however, that a statute that largely restates the repealed constitutional provisionGovernment Code section 70212 remains in effect.
[8] The greater significance of Hinds was in its discussion of the defendant's ineffective assistance of counsel claim, which is not pertinent here.
[9] Indeed, the appellate court in Garrido specifically rejected the defendant's argument that "her case was never certified to superior court," noting "the order signed by the court that `this case together with a copy of all proceedings held herein is certified to the Superior Court for this County.'" (People v. Garrido, supra, 127 Cal.App.4th at p. 364, 25 Cal.Rptr.3d 494.)
[10] Other statutes in the Penal Code also use the word "certify" in this manner. (See, e.g., § 190 [trial court to "certify" record on appeal in death penalty case]; § 938.1, subd. (a) [reporter to "certify" transcript of grand jury proceedings resulting in indictment or accusation].)
[11] Here, defendant pled guilty to the possession of heroin in exchange for sentencing under Proposition 36 and dismissal of the misdemeanor charge. It does not appear from the record whether defendant would have been eligible for sentencing under Proposition 36 in the absence of the plea agreement, because Proposition 36 mandates probation for those convicted of certain narcotics offenses, but "[t]he mandate of probation and treatment ... does lot apply to five defined classes of defendants." (In re Varnell (2003) 30 Cal.4th 1132, 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037.) Without a probation report, which was waived as part of the plea agreement, we cannot determine whether defendant may have fallen within one of those classes. In any event, by pleading, defendant secured the dismissal of the misdemeanor charge, which was to his benefit, however slight.
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TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTIONS DWISSW'N
ISTCOUKTOF APPEALS
OFFENDER COMMUNICATION Houston,texas
TO OFFICIAL MAR 9'206
March 6, 2015 Christopher a. prine
CLERK ( y/1^
To± HONORABLE JANE BLAND, ACTING INDIVIDUALLY, JUSTICE
From: Offender David Cash Moore, Member, Prison Justice League-
TDCJ-CID #801362, Volunteer Chaplain's Musician, B'Nei '
Noach (religious affiliation)
Subject: Appellate case Number: 01-14-00790-CV, Senrick Wilkerson
v. Ramsey 1 Unit, Trial court case number: 78470-1
Trial court: 412th Judicial District Court of Brazoria
County
REQUEST FOR ORDER TO PROVIDE ACCESSIBILITY TO FEDERAL
DEPOSITORY GOVERNMENTAL DOCUMENTS LIBRARY HOLDINGS OF
TEXAS STATE LIBRARY SYSTEM
(Cases cited by Justice Jane Bland in order signed
January 27, 2015, Appellate Cause No. 01-14-00790-CV)
STATE OF TEXAS §
COUNTY OF BRAZORIA § offenders Unsworn Declaration in Lieu of Affidavit
I, David Cash Moore, TDCJ-CID #801362, being presently confined in the Ramsey
One Unit, Brazoria County, Texas (Rosharon, TX 77583-7670), declare under
penalty of perjury the following is true and correct:
1. Icame to know the appellant in the above-captioned cause as I am a layman
of the law, having had thousands of hours attendance'during my incarceration,
now over seventeen (17) years. I provide free typing (offenders are allowed
to purchase or obtain from indigent supply supplies for court communications)
as a way to give back to society and as my own personal ministry, (based on my
religious beliefs (see, e.g., asknoah.org) as a Noahide Jew,) and to hone my
business communication skills, inter alia.
2. Texas Dep't of Criminal Justice - Correctional Institutions Division receives
federal funds, on information and belief. The Texas State Law Library is list
ed as a Federal Depository Library Program participant, according to Government
Printing Office ("GPO"), GPO Form 3844 (R6-03) P. 57479-1. A portion of court
costs may be deducted for use/deposit/division into the county law library
programming, or fees deducted for same, on information and belief.
FILED IN
1 of 1STCOURT OF APPEALS
HOUSTON, TEXAS
MAR 13 2015
CHRISTOPHER A. PRINE
r •«--»/•
'(9**£L*I>* /g/g'? 91 '?/?/ '?&*/ W$ *& (i7hiy ' Xh „„
f/
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50727
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY RAY FITZGERALD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-94-CR-190-ALL-SS
--------------------
March 1, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Billy Ray Fitzgerald appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
to reduce his 210-month prison sentence for possessing more than five grams of cocaine base. The
district court may modify a defendant’s term of imprisonment “in the case of a defendant who has
been sentenced to a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” 18 U.S.C. § 3582(c)(2).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50727
-2-
This court reviews the district court’s determination whether to reduce a sentence pursuant to 18
U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Pardue, 36 F.3d 429, 430 (5th Cir.
1994).
On appeal, Fitzgerald renews his claims that his sentence is unconstitutional under Apprendi
v. New Jersey, 530 U.S. 466 (2000), and that the sentencing court erred in converting a sum of cash
into drugs for its drug quantity determination. Fitzgerald, however, has not identified any amendment
to the Sentencing Guidelines with regard to either of these claims. The district court thus lacked
authority to reduce Fitzgerald’s sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v.
Lopez, 26 F.3d 512, 515 & n.3 (5th Cir. 1994).
Fitzgerald also argues for the first time on appeal that the sentencing court did not follow the
requirements of FED. R. CRIM. P. 32 in addressing his objections to the presentence report and in
making erroneous factual findings at sentencing; the Government failed to give notice of its intention
to enhance his sentence based on prior convictions; the Government failed to demonstrate that he
possessed “crack” as defined in U.S.S.G. § 2D1.1(c), as amended by Amendment 487; and the trial
court failed to instruct the jury on the lesser included offense of simple possession. Because
Fitzgerald did not assert these claims in the district court, this court will not consider them. See
Pardue, 36 F.3d at 431.
Because the district court did not abuse its discretion in denying Fitzgerald’s 18 U.S.C. §
3582(c)(2) motion, the judgment of the district court is AFFIRMED. See id. at 430.
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140 T.C. No. 12
UNITED STATES TAX COURT
LAWRENCE F. PEEK AND SARA L. PEEK, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
DARRELL G. FLECK AND KIMBERLY J. FLECK, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 5951-11, 6481-11. Filed May 9, 2013.
In 2001 Ps established traditional IRAs. Ps formed FP Corp.
and directed their new IRAs to use rolled-over cash to purchase 100%
of FP Corp.’s newly issued stock. Ps used FP Corp. to acquire the
assets of AFS Corp. Ps personally guaranteed loans of FP Corp. that
arose out of the asset purchase. In 2003 and 2004 Ps undertook to
roll over the FP Corp. stock from their traditional IRAs to Roth IRAs,
including in Ps’ income the value of the stock rolled over in those
years. In 2006 after the FP Corp. stock had significantly appreciated
in value, Ps directed their Roth IRAs to sell all of the FP stock. Ps’
personal guaranties on the loans of FP Corp. persisted up to the stock
sale in 2006. R contends that Ps’ personal guaranties of the FP Corp.
loan were prohibited transactions, and, as a result, the gains realized
in 2006 and 2007 from the 2006 sales of FP stock should be included
in Ps’ income.
-2-
Held: Each of Ps’ personal guaranties of the FP Corp. loan was
an indirect extension of credit to the IRAs, which is a prohibited
transaction; and under I.R.C. sec. 408(e), the accounts that held the
FP Corp. stock ceased to be IRAs.
Held, further, the gains realized on the sale of the FP Corp.
stock are included in Ps’ income.
Held, further, Ps are liable for the accuracy-related penalty
under I.R.C. sec. 6662.
Sheldon Harold Smith, for petitioners.
Shawn P. Nowlan, E. Abigail Raines, and John Q. Walsh, Jr., for
respondent.
GUSTAFSON, Judge: Pursuant to section 6212,1 the Internal Revenue
Service (“IRS”) issued statutory notices of deficiency to petitioners Lawrence F.
Peek and Sara L. Peek on December 9, 2010, and to petitioners Darrell G. Fleck
and Kimberly J. Fleck on December 14, 2010, determining the following
deficiencies in income tax and accuracy-related penalties under section 6662(a) for
tax years 2006 and 2007:
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code (26 U.S.C.), and all Rule references are to the Tax Court Rules of
Practice and Procedure.
-3-
Penalty
Taxpayers Year Deficiency sec. 6662(a)
Peek 2006 $223,650 $44,730.00
2007 1,399 279.80
Fleck 2006 243,229 48,645.80
2007 4,948 989.60
The issues for decision in these consolidated cases are: (i) whether
Mr. Fleck’s and Mr. Peek’s personal guaranties of a loan to FP Company were
prohibited transactions under section 4975(c)(1)(B);2 and (ii) whether the Flecks
and the Peeks owe accuracy-related penalties under section 6662(a).
2
Because we hold that the loan guaranties were prohibited transactions, we
need not and do not reach the additional questions of whether prohibited
transactions occurred (i) when FP Company made payments of wages to Mr. Fleck
and Mr. Peek (which the IRS contends were prohibited transactions under section
4975(c)(1)(D)), or (ii) when FP Company made payments of rent to an entity
owned by Mrs. Fleck and Mrs. Peek (which the IRS contends were prohibited
transactions under section 4975(c)(1)(E)). (We also need not consider whether
those issues constitute “new matter”. See note 3 below.) Furthermore, because
our holding that the loan guaranties were prohibited transactions resolves the
income tax issues in favor of the IRS and against the petitioners, we need not
reach the question whether Mr. Fleck and Mr. Peek would, in the alternative, owe
excise tax for excess contributions to their successor IRAs under section 4973.
-4-
FINDINGS OF FACT
These cases were submitted by the parties fully stipulated under Rule 122
for decision without trial,3 and the stipulated facts are incorporated herein by this
reference.
Abbot Fire & Safety, Inc.
In 2001 Mr. Fleck identified Abbott Fire & Safety, Inc. (“AFS”), as an
attractive business opportunity. AFS specialized in providing alarms and fire
protection, hood suppression systems, sprinkler systems, backflow inspections,
fire extinguishers, and emergency lights for businesses. AFS also engaged in
government-mandated compliance testing related to fire suppression and safety.
3
The burden of proof is generally on the taxpayer, see Rule 142(a)(1), and
the submission of a case as fully stipulated under Rule 122 does not alter that
burden, see Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22
(8th Cir. 1991). However, the burden of proof can be shifted when the
Commissioner’s position implicates “new matter” that was not in the notice of
deficiency. Petitioners point out that whereas the notice of deficiency determined
that they had engaged in “prohibited transactions” forbidden in section
4975(c)(1)(C) and (F)--involving “furnishing of goods, services”, etc., and
“receipt of consideration * * * in connection with a transaction involving the
income or assets of a plan”--the Commissioner now relies on section
4975(c)(1)(B), which prohibits “indirect * * * extension of credit”. We note that
the notices of deficiency make no mention of the loan guaranties. To the extent
that this issue would require different evidence, it could constitute “new matter”.
However, we need not resolve that question, see Dagres v. Commissioner, 136
T.C. 263, 279 (2011), since the material facts are not actually in dispute, and we
can resolve the case by a mere preponderance of the evidence.
-5-
Mr. Fleck contacted A.J. Hoyal & Co. (“A.J. Hoyal”), the brokerage firm through
which AFS was offered for sale. While Mr. Fleck originally hoped to purchase
AFS with a family member as partner, that relative was unable to join the venture.
Instead, Mr. Peek, an attorney who had provided legal services to Mr. Fleck in the
past, approached Mr. Fleck about joining the venture. (Mr. and Mrs. Fleck are not
related to Mr. and Mrs. Peek.)
The IACC
A.J. Hoyal introduced Mr. Fleck to Christian Blees, a certified public
accountant (“C.P.A.”) at a Colorado Springs accounting firm. Mr. Fleck later
introduced Mr. Blees to Mr. Peek. Neither Mr. Fleck nor Mr. Peek knew
Mr. Blees previously. Mr. Fleck and Mr. Peek engaged Mr. Blees and his firm to
assist in structuring the purchase of AFS’s assets and to perform due diligence on
the transaction.
Mr. Blees presented to Mr. Fleck and Mr. Peek information on a strategy he
identified as the “IACC”. On September 6, 2001, Mr. Blees gave to Mr. Fleck and
Mr. Peek documents that described the IACC plan. This strategy called for the
participant to establish a self-directed individual retirement account (“IRA”),
transfer funds into that IRA from an existing IRA or section 401(k) plan account,
-6-
set up a new corporation, sell shares in the new corporation to the self-directed
IRA, and use the funds from the sale of shares to purchase a business interest.
In addition to describing the plan, the IACC documents included an
extensive discussion and an opinion letter from Mr. Blees about prohibited
transactions under section 4975, which state that such transactions would be
detrimental to the IACC plan’s tax objectives. The documents warned that “the
taxpayer could not engage in transactions with the IRA that the IRS would
determine to be ‘prohibited transactions’”. Also included in the documents was a
letter from the accounting firm, which instructed:
An important distinction to always recognize is that any actions you
take on behalf of the corporation must be taken by you as an agent for
the corporation and not by you personally. Any business done by the
corporation must be done in its status as a corporation and realizing
that you are acting as an agent of the corporation only. The
corporation should exercise care to hold itself out at all times to the
public as a corporation and not as some other type of entity, or as an
extension of you personally.
* * * * * * *
Failure to properly manage the corporations [sic] affairs, or to
conduct business in any manner other than at arms length could result
in adverse effects to the corporation, your IRA, and to you personally.
This might include, but is not limited to, the assessment of additional
income taxes, penalties and interest from various taxing authorities.
-7-
None of the IACC documents indicate that Mr. Fleck or Mr. Peek informed their
accountant that they might guarantee loans for the new corporation as part of their
planned acquisition of AFS’s assets; and the documents included no advice to the
effect that an extension of credit or personal guaranty between petitioners and the
new corporation would not be considered prohibited transaction for purposes of
section 4975.
Mr. Peek completed and submitted an “IACC Application” and, in response,
received the “IACC Plan for FP Company”, a document that outlined a plan for
the purchase of AFS’s assets. Mr. Fleck and Mr. Peek subsequently implemented
this plan and compensated Mr. Blees and his firm for structuring the purchase and
performing due diligence. Both Mr. Fleck and Mr. Peek were aware of the
compensation.
Implementing IACC with FP Company
Mr. Fleck and Mr. Peek each established at Vista Bank accounts intended to
be self-directed IRAs, over which they each retained all discretionary authority
and control concerning investments. Mr. Fleck rolled over funds on August 17,
2001, into his IRA (the “Fleck Vista IRA”), from an existing account maintained
for his benefit at the Allied Domesq 401(k) Retirement Plan. Mr. Peek rolled over
funds on August 30, 2001, into his IRA (the “Peek Vista IRA”), from an existing
-8-
account maintained for his benefit at Charles Schwab. Neither Mr. Fleck nor Mr.
Peek contributed to the other’s IRA.
On August 27, 2001, the articles of incorporation for FP Company, Inc.
(“FP Company”) were filed with the Colorado Secretary of State. At formation,
Mr. Fleck and Mr. Peek intended that FP Company would purchase the assets of
AFS and engage in the retail sale of fire suppression systems.
On September 11, 2001, each IRA purchased 5,000 shares of newly issued
stock in FP Company for $309,000 and thereby acquired a 50% interest in FP
Company. The Peek Vista IRA made its purchase at Mr. Peek’s direction, and the
Fleck Vista IRA made its purchase at Mr. Fleck’s direction. In so doing, Mr. Peek
and Mr. Fleck both intended that FP Company would purchase the assets of AFS.
At the time of purchase, both Mr. Peek and Mr. Fleck also intended to serve as
corporate officers and directors of FP Company.
In a transaction closed in mid-September 2001 (but with an agreed effective
date of August 28, 2001), FP Company acquired most of AFS’s assets for a price
of $1,100,000, consisting of: (a) $850,000 in cash (derived from (i) a $450,000
bank loan to FP Company from a credit union and (ii) $400,000 of the proceeds of
the sale of FP Company’s stock to the IRAs); (b) a $50,000 promissory note from
FP Company to A.J. Hoyal (the broker); and (c) a $200,000 promissory note from
-9-
FP Company to the sellers, secured by personal guaranties from Mr. Fleck and Mr.
Peek.
As part of Mr. Fleck’s and Mr. Peek’s personal guaranties, a deed of trust on
their personal residences was recorded in El Paso County, Colorado, on September
17, 2001. Mr. Fleck and Mr. Peek were grantors, and Leslie and Carol Heinrich,
the shareholders of the corporation selling AFS’s assets, were the grantees of the
deed of trust. The guaranties remained in effect until the sale and merger of FP
Company in 2006.
Operation of FP Company d.b.a. Abbott
On September 25, 2001, FP Company filed a Statement of Change of
Registered Officer or Registered Agent with the Colorado Secretary of State,
which named Mr. Peek as the new registered agent of FP Company. Also on
September 25, FP Company filed two Certificates of Assumed or Trade Name,
indicating that it would hereafter do business as “Abbott Fire & Safety, Inc.” and
“Abbott Fire Extinguisher Company, Inc.”
From 2001 until the 2006 sale, Mr. Fleck and Mr. Peek were the only
persons to serve as corporate officers and directors of FP Company.
- 10 -
Subsequent transactions involving the Fleck and Peek IRAs
In 2002 Mr. Fleck and Mr. Peek’s accountants informed them that Vista
Bank was terminating its services as custodian of the Fleck Vista IRA and the
Peek Vista IRA. Consequently, they transferred the Fleck Vista IRA and the Peek
Vista IRA to First Trust Co. of Onaga (to become the “Fleck Onaga IRA” and the
“Peek Onaga IRA”). Each man intended the new account to be self-directed. In
each new IRA the sole asset was the shares of FP Company previously held in the
Vista IRAs.
In 2003 Mr. Fleck converted half of the Fleck Onaga IRA to a Roth IRA at
the same bank (the “Fleck Roth IRA”); and Mr. Peek converted half of the Peek
Onaga IRA to a Roth IRA (the “Peek Roth IRA”). In 2004 each transferred the
remaining half of his Onaga IRA into his Roth IRA, so that thereafter each
Roth IRA owned 50% of the stock of FP Company. Mr. Fleck and Mr. Peek each
reported the fair market values of the converted portions of their accounts as
taxable income for 2003 and 2004.
- 11 -
2006 sale and merger of FP Company
In 2006 the Roth IRAs sold FP Company to Xpect First Aid Co. Each Roth
IRA received payments on the following dates and in the following amounts for its
50% interest in FP Company:
Date Payment
3/14/2006 $1,385,920
4/5/2006 114,713
9/14/2006 63,932
11/9/2006 9,156
4/30/2007 94,471
Total 1,668,192
Following these payments, neither the Fleck Roth IRA nor the Peek Roth IRA
owned any interest in FP Company, and neither Mr. Fleck nor Mr. Peek had any
involvement with FP Company or Xpect First Aid Co.
Administrative actions
Both the Flecks and the Peeks timely filed Federal income tax returns on
Forms 1040, “U.S. Individual Income Tax Return”, for the years 2006 and 2007.
The IRS examined those returns, adjusted petitioners’ income to include capital
gain from the sale of FP Company stock,4 and in the alternative imposed excise tax
4
As a result of the increased income, the IRS also made computational
adjustments to exemption amounts, student interest deductions (for the Flecks
only), itemized deductions, and self-employment tax.
- 12 -
for excess contributions to Mr. Fleck’s and Mr. Peek’s Roth IRAs during 2006.
The IRS issued statutory notices of deficiency to the Peeks on December 9, 2010,
and to the Flecks on December 14, 2010.
The Peeks timely mailed their petition to this Court on March 8, 2011; and
the Flecks timely mailed their petition to this Court on March 14, 2011. At the
time they filed their petitions, both the Flecks and the Peeks resided in Colorado.
OPINION
I. IRAs and prohibited transactions
A taxpayer who invests his money in the hope of making a gain over a
period of years--whether to fund his retirement or for any other purpose--normally
must pay tax on that gain as he realizes it. Sec. 1001(a), (c). His payment of the
tax from time to time diminishes the size of his investment and thereby, to some
extent, diminishes his future gains. However, a taxpayer may create an
“individual retirement account”, which is exempt from tax under section 408(e)(1)
and in which his investment can therefore increase until his retirement without
being diminished by income tax liability. As long as the account qualifies as an
IRA, the taxpayer-investor is not liable for income tax on the gains, so that the
undiminished investment account can earn maximum returns until the time comes
for payout, when the taxpayer will finally owe income tax on those greater gains.
- 13 -
Under section 408, the benefit of the traditional IRA is thus deferral of income tax
liability on retirement investment gains.5 Mr. Fleck and Mr. Peek therefore used
IRAs to make their investments in FP Company, with the intention of deferring
until retirement their income tax liability on the gain they hoped for (and did
experience) from that investment.
However, IRAs are subject to special rules, including the provision in
section 408(e)(2)(A)6 that an account ceases to qualify as an IRA if “the individual
for whose benefit any individual retirement account is established * * * engages in
any transaction prohibited by section 4975”. The IRS contends that, under that
provision, the Fleck Vista IRA, the Peek Vista IRA, and their successor IRAs
ceased to qualify as IRAs as of the first day of 2001 through 2006 because
Mr. Fleck and Mr. Peek made loan guaranties that were “prohibited transactions”
5
To the extent Mr. Fleck and Mr. Peek attempted to use Roth IRAs under
section 408A, their desired tax benefit was slightly different. A taxpayer investing
through a Roth IRA does not exclude qualifying contributions to the Roth IRA
from income, but once in the Roth IRA, investments grow tax free and qualifying
distributions from the Roth IRA are not subject to tax. See sec. 408A. Because
the IRAs ceased to qualify before the attempted Roth conversion, the Roth IRA
rules of section 408A have no application in these cases.
6
Section 408(e)(2)(A) provides: “If, during any taxable year of the
individual for whose benefit any individual retirement account is established, that
individual or his beneficiary engages in any transaction prohibited by section 4975
with respect to such account, such account ceases to be an individual retirement
account as of the first day of such taxable year.”
- 14 -
under section 4975(c)(1)(B).7 The IRS therefore concludes that the IRAs’ assets
are, under section 408(e)(2)(B),8 deemed to have been distributed to Mr. Fleck and
Mr. Peek, who both therefore owe income tax on the gain on sale in 2006 and
2007. The petitioners dispute the IRS’s contention that any prohibited
transactions occurred, and instead contend that the IRAs remained qualified as
such and therefore remained exempt from tax under section 408(e)(1).
II. Loan guaranties as prohibited transactions
The IRS argues that Mr. Fleck’s and Mr. Peek’s personal guaranties of the
$200,000 promissory note from FP Company to the sellers of AFS in 2001 as part
of FP Company’s purchase of AFS’s assets were prohibited transactions. Section
4975(c)(1)(B) prohibits “any direct or indirect * * * lending of money or other
extension of credit between a [retirement] plan and a disqualified person”.
(Emphasis added.) The petitioners counter that Mr. Fleck’s and Mr. Peek’s
7
Section 4975(c)(1) enumerates categories of prohibited transactions,
including “any direct or indirect-- * * * (B) lending of money or other extension of
credit between a plan and a disqualified person”.
8
Section 408(e)(2)(B) provides: “In any case in which any account ceases to
be an individual retirement account by reason of subparagraph (A) as of the first
day of any taxable year, paragraph (1) of subsection (d) applies [i.e., “any amount
paid or distributed * * * shall be included in gross income by the payee or
distributee”] as if there were a distribution on such first day in an amount equal to
the fair market value (on such first day) of all assets in the account (on such first
day).”
- 15 -
personal guaranties were not prohibited transactions because they did not involve
“the plan” (i.e., in this case, the IRAs), whereas the extension of credit prohibited
under section 4975(c)(1)(B) is “between a plan and a disqualified person”.9
(Emphasis added.) They acknowledge that a loan guaranty can fall within the
prohibition, because, though it is not a direct extension of credit (i.e., a loan), it is
an indirect extension of credit. See Janpol v. Commissioner, 101 T.C. 518, 527
(1993) (“An individual who guarantees repayment of a loan extended by a third
party to a debtor is, although indirectly, extending credit to the debtor”). But
petitioners argue that the prohibition applies only to an extension of credit that,
whether direct (like a loan) or indirect (like a loan guaranty), is “between a plan
and a disqualified person”. The loan guaranties at issue were between disqualified
persons (Mr. Fleck and Mr. Peek) and an entity other than the plans--i.e.,
FP Company, an entity owned by the IRAs, rather than the IRAs themselves.
9
Section 4975(e)(2)(A) defines “disqualified person” as a “fiduciary,” which
is itself defined in section 4975(e)(3) as “any person who * * * exercises any
discretionary authority or discretionary control respecting management of such
plan or exercises any authority or control respecting management or disposition of
its assets”. See Swanson v. Commissioner, 106 T.C. 76, 88 n.13 (1996). The
parties stipulated that Mr. Fleck and Mr. Peek each retained all authority and
control over his Vista IRA and its successor IRAs, and that each used this
discretion to direct their IRAs to invest in FP Company. Thus, Mr. Fleck and Mr.
Peek were “disqualified person[s]” as to their IRAs for purposes of this section.
- 16 -
This reading of the statute, however, would rob it of its intended breadth.
Section 4975(c)(1)(B) prohibits “any direct or indirect * * * extension of credit
between a plan and a disqualified person”. (Emphasis added.) The Supreme
Court has observed that when Congress used the phrase “any direct or indirect” in
section 4975(c)(1), it thereby employed “broad language” and showed an obvious
intention to “prohibit[] something more” than would be reached without it.
Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159-160 (1993).
As the Commissioner points out, if the statute prohibited only a loan or loan
guaranty between a disqualified person and the IRA itself, then the prohibition
could be easily and abusively avoided simply by having the IRA create a shell
subsidiary to whom the disqualified person could then make a loan. That,
however, is an obvious evasion that Congress intended to prevent by using the
word “indirect”. The language of section 4975(c)(1)(B), when given its obvious
and intended meaning, prohibited Mr. Fleck and Mr. Peek from making loans or
loan guaranties either directly to their IRAs or indirectly to their IRAs by way of
the entity owned by the IRAs.
III. Tax consequences of the guaranties on the sale of stock
The IRS’s two notices of deficiency issued to petitioners for 2006 and 2007
are similar, and the one issued to the Flecks asserted:
- 17 -
The prohibited transaction triggered a liquidation of the IRAs in the
[sic] 2001. Following that liquidation, the stock of FP Company Inc.
is treated as owned by the [sic] Fleck and another individual [i.e.,
Mr. Peek] personally. Consequently, Fleck and the other individual
are taxed personally on any gain on the sale of such stock.
Petitioners seem to argue that the IRS’s notices of deficiency issued for 2006 and
2007 are somehow too late (because the loan guaranties were made in 2001), and
that in the absence of an earlier notice of deficiency the IRAs remained exempt.
Petitioners suggest that if the IRAs did not lose their exemption until 2006, then
petitioners would have realized ordinary income in that year, rather than the
capital gain determined in the notices; and they argue that since the notices did not
make that particular adjustment, the notices are somehow inadequate to support an
assessment of tax based on capital gains. This argument either misconstrues the
tax consequences to an individual who engages in prohibited transactions with
respect to an IRA or perhaps exaggerates the importance of the wording of the
notices. The notices determined deficiencies for 2006 and 2007 on the basis of a
prohibited transaction that took place in 2001. We now redetermine those 2006
and 2007 deficiencies and decide (1) whether the accounts that held the FP
Company stock were IRAs in 2006 when the stock was sold (we hold they were
not), (2) when they ceased to be IRAs and therefore exempt from income tax (we
hold in 2001), and (3) the tax consequences of their non-exemption (we hold Mr.
- 18 -
Fleck and Mr. Peek are liable for tax on the capital gains realized in 2006 and
2007 from the sale of the FP Company stock).
The loan guaranties were not a once-and-done transaction with effects only
in 2001 but instead remained in place and constituted a continuing prohibited
transaction, thus preventing Mr. Fleck’s and Mr. Peck’s accounts that held the FP
Company stock from being IRAs in subsequent years.10 On January 1, 2006, it
remained true that Mr. Fleck and Mr. Peek guaranteed the loan to FP Company; if
FP Company defaulted, they would pay. By its nature, the loan guaranty that each
man made put him and his account in an indirect lending relationship that would
persist until the loan was paid off.
Consequently, under section 408(e)(2)(A), each original account holding the
FP Company stock ceased to qualify as an IRA in 2001. In 2003 and 2004 when
Mr. Fleck and Mr. Peek established Roth IRAs, those accounts ceased to be Roth
IRAs when they funded the accounts with FP Company stock, because the
prohibited transactions continued as to those accounts. See sec. 408A(a) (“Except
as provided in this section, a Roth IRA shall be treated for purposes of this title in
10
Since the guaranties (i.e., the prohibited transactions) continued through
the time of the sale of FP Company stock in 2006, we do not address what, if any,
requirements there are to subsequently reform or resuscitate an IRA that, pursuant
to the provisions in section 408(e)(1), has “ceased to be an individual retirement
account”.
- 19 -
the same manner as an individual retirement plan”). For the same reasons, the
accounts holding the FP Company stock when the stock was sold in 2006 were not
Roth IRAs, and the gains from the sale realized in 2006 and 2007 were not exempt
from tax. The tax liability from the gain is properly attributable to Mr. Fleck and
Mr. Peek as the creators and beneficiaries of the accounts that sold the FP
Company stock. See secs. 671, 408(a), (e)(2)(A)(i). Petitioners have not
challenged the IRS’s calculation of gain on the sale or asserted that they were
entitled to a higher basis in the stock than what the IRS allowed. They were
therefore liable for tax on the gains realized in the sale transaction as determined
in the notices of deficiency.11
11
In the alternative, the IRS agues that Mr. Fleck and Mr. Peek owe excise
tax on the excess contributions to their successor IRAs under section 4973(a).
While section 4973(a) imposes an excise tax equal to 6% of the excess
contribution made to a traditional/Roth IRA, this tax is imposed only for each
subsequent year in which the excess contribution remains in the IRA. Under our
holding here that when the IRAs engaged in prohibited transactions, they ceased to
be IRAs and the value of the IRAs’ assets constituted deemed distributions to
Mr. Peek and Mr. Fleck personally, any excessive contribution to a new IRA was
self-corrected and no excise tax would be due. We therefore do not address
further this alternative theory.
- 20 -
IV. Accuracy-related penalties
A. Substantial understatements
The IRS determined that the Flecks and the Peeks are liable for a 20%
accuracy-related penalty because their underpayments were “substantial
understatement[s] of income tax” under section 6662(b)(2). By definition, an
understatement of income tax is substantial if it exceeds the greater of $5,000 or
10% of the tax required to be shown on the return. Sec. 6662(d)(1)(A). Pursuant
to section 7491(c), the Commissioner bears the burden of producing sufficient
evidence showing that the imposition of the penalty is appropriate in a given case.
Higbee v. Commissioner, 116 T.C. 438, 446 (2001). He has met this burden of
showing substantial understatements of income tax for 2006, since the adjustments
for 2006 in the notices of deficiency result in deficiencies that exceed the requisite
amounts. The same cannot be said for the 2007 deficiencies; consequently, the
Commissioner also maintains that both the 2006 and 2007 underpayments in these
cases were attributable to “negligence or disregard of rules or regulations”. Sec.
6662(b)(1).
B. Negligence or disregard
For purposes of section 6662, “the term ‘negligence’ includes any failure to
make a reasonable attempt to comply with the provisions of this title [i.e. 26
- 21 -
U.S.C.]”. Sec. 6662(c). Negligence is defined as a lack of due care or failure to
do what a reasonable and ordinarily prudent person would do under the
circumstances. Neely v. Commissioner, 85 T.C. 934 (1985). The term “disregard”
includes any careless, reckless, or intentional disregard of the rules or regulations.
Sec. 6662(c).
The underpayments in these cases result from petitioners’ failures to report
capital gain income that they realized from the 2006 sale of FP Company stock;
instead petitioners contended that IRAs held the FP Company stock when the
stock was sold and, therefore, the realized gains were not taxable. However,
Mr. Fleck and Mr. Peek were well aware that prohibited transactions listed in
section 4975 could be fatal to their IRA arrangements, because both the IACC
information they received and an opinion letter from their accountant discussed
section 4975 in detail. The IACC information expressly stated: “the taxpayer
could not engage in transactions with the IRA that the IRS would determine to be
‘prohibited transactions’”.
Section 4975(c)(1)(B) clearly provides that any “indirect * * * lending of
money or other extension of credit between a plan and a disqualified person” is a
prohibited transaction. As we have held, Mr. Fleck’s and Mr. Peek’s personal
guaranties to FP Company were “indirect * * * extension[s] of credit” to their
- 22 -
IRAs and were prohibited transactions, see Janpol v. Commissioner, 101 T.C. at
527, and no one advised them otherwise. Given Mr. Fleck’s and Mr. Peek’s
knowledge about the hazards of prohibited transactions and their personal
involvement with the FP Company transactions (in particular, their personal
guaranties), we conclude that petitioners were negligent when they failed to report
income from the sales of FP Company stock after Mr. Fleck and Mr. Peek had
engaged in a prohibited transaction.
C. Reasonable cause and good faith
Once the Commissioner meets this burden, the taxpayer must come forward
with persuasive evidence that the Commissioner’s determination is incorrect.
Rule 142(a); Higbee v. Commissioner, 116 T.C. at 447. Petitioners argue that,
even if they owe tax on the gain from the sale of FP Company, they acted with
reasonable cause and in good faith when they failed to report the capital gains at
issue, because they relied on advice provided by Mr. Blees, the C.P.A. See sec.
6664(c) (accuracy-related penalty is not due with respect to any portion of an
underpayment if it is shown that there was reasonable cause and taxpayer acted in
good faith with respect to that portion). However, as Mr. Fleck and Mr. Peek
knew, Mr. Blees was himself not a disinterested professional but rather an active
promoter of the IACC. A “promoter” is “‘an adviser who participated in
- 23 -
structuring the transaction or is otherwise related to, has an interest in, or profits
from the transaction.’” 106 Ltd. v. Commissioner, 136 T.C. 67, 79 (2011)
(quoting Tigers Eye Trading, LLC v. Commissioner, T.C. Memo. 2009-121),
aff’d, 684 F.3d 84 (D.C. Cir. 2012). What they received from Mr. Blees was not
advice so much as a sales pitch.
Because of Mr. Blees’s role as promoter, Mr. Fleck and Mr. Peek could not
reasonably and in good faith rely on that advice. See 106 Ltd. v. Commissioner,
136 T.C. at 79 (“promoters take the good-faith out of good-faith reliance”). As the
parties have stipulated, Mr. Blees sold to Mr. Fleck and Mr. Peek the IACC plan,
which was later used to structure the purchase of AFS’s assets. Mr. Blees was
thus a promoter, and Mr. Fleck and Mr. Peek could not reasonably and in good
faith rely on his advice to adopt the IACC.
Moreover, there is no indication that Mr. Fleck and Mr. Peek informed their
accountant of their intention to personally guarantee FP Company loans, or that
Mr. Blees gave them any advice that their personal guaranties would not be a
prohibited transaction under section 4975. Rather, they were warned not to
engage in any transactions that “the IRS would determine to be a ‘prohibited
transaction’”.
- 24 -
Since Mr. Blees’s advice did not address the issue of personal guaranties,
we conclude that petitioners did not rely on their accountant’s advice with regard
to the prohibited transactions in these cases, and did not have reasonable cause or
act in good faith in failing to report the capital gains in these cases.
We therefore sustain the imposition of the accuracy-related penalty under
section 6662(a) for both years in issue in both cases.
To reflect the foregoing,
Decisions will be entered under
Rule 155.
|
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|
Filed 7/19/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF HESPERIA, D075100
Plaintiff and Respondent,
v. (Super. Ct. No. CIVDS1602017)
LAKE ARROWHEAD COMMUNITY
SERVICES DISTRICT ET AL.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Donald R. Alvarez, Judge. Affirmed.
Best Best & Krieger, Howard B. Golds and Lindsay D. Puckett for Defendants and
Appellants.
Aleshire & Wynder, Eric L. Dunn, June S. Ailin and Nicholas P. Dwyer for
Plaintiff and Respondent.
Over the years since at least 1959, the Legislature has attempted to achieve a
balance between the state's interest in allowing local agencies to produce, generate, store,
and transmit water or electrical energy and the cites' and counties' control over local
building and zoning. This appeal requires the court to consider whether a solar energy
project proposed by a local agency, the Lake Arrowhead Community Services District
(District), is exempt from—or whether the District must comply with—the zoning
ordinances of the city in which the project is to be developed, the City of Hesperia (City).
Our analysis begins with the statutory requirement that, for purposes of a proposed
solar energy project, a local agency must comply with the zoning ordinances of the city
and county in which the project's facilities are to be constructed or located. (Gov. Code,
§ 53091, subd. (a); further undesignated statutory references are to the Government
Code.) Then, as potentially applicable here, section 53091, subdivision (e) (§ 53091(e)),
and section 53096, subdivision (a) (§ 53096(a)), each provides the agency with an
exemption for the location and construction of certain types of facilities.
Section 53091(e) provides an absolute exemption for "the location or construction of
facilities . . . for the production or generation of electrical energy"—unless the facilities
are "for the storage or transmission of electrical energy," in which event the zoning
ordinances apply. Section 53096(a) provides a qualified exemption for an agency's
proposed use upon, first, a showing that the development is for facilities "related to
storage or transmission of water or electrical energy" and, second, a resolution by
four-fifths of the agency's members that "there is no feasible alternative to [the agency's]
proposal."
In the present case, the District adopted a resolution that its proposed solar energy
project was both (1) absolutely exempt from the City's zoning ordinances under
section 53091(e) and (2) qualifiedly exempt under section 53096(a), following the
requisite determination that there was no feasible alternative to the proposed location of
2
the project. The City successfully challenged the resolution in the underlying superior
court proceedings, where the court issued a judgment in favor of the City and a related
writ of mandate directing that the District and its board comply with the City's zoning
ordinance prior to implementing the project.
We affirm. As we explain, because the District's proposed project includes the
transmission of electrical energy, the exemption contained in section 53091(e) does not
apply to the project; and because the administrative record does not contain substantial
evidence to support the District's board's finding that there is no feasible alternative to the
proposed location of the project, the District prejudicially abused its discretion in
determining that the exemption contained in section 53096(a) applied to the project.
I. FACTUAL AND PROCEDURAL BACKGROUND1
The dispute in this matter is between the District, which is attempting to develop a
solar energy project on property it owns within the City's limits, and the City, which is
attempting to enforce its zoning regulations.
A. Introduction
The District is a community services district, established in 1978 pursuant to
section 61000 et seq. Although community services districts may be authorized to
1 We have disregarded factual statements in the parties' briefs that are not
accompanied by accurate references to either the administrative record or the superior
court record. (Cal. Rules of Court, rule 8.204(a)(1)(C); (Fierro v. Landry's Restaurant
Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5 ["appellate courts may ' "disregard any factual
contention not supported by a proper citation to the record" ' "]; County of Riverside v.
Workers' Comp. Appeals Bd. (2017) 10 Cal.App.5th 119, 124 [courts " 'ignore' " factual
statements in appellate briefs that do not contain record references].)
3
provide various governmental services (e.g., water, trash, street lighting, fire protection,
parks and recreation, etc. (§ 61100)), the District is authorized only to provide water and
wastewater treatment services within its boundaries, which are sometimes referred to as
the Lake Arrowhead community.2 A September 2014 report from the United States
Department of the Interior indicates that the District served approximately 8,000 water
customers and 10,500 wastewater customers in the Lake Arrowhead community.
The District owns and uses portions of a 350-acre area known as Hesperia Farms
to discharge and percolate treated effluent from its water reclamation facilities in Lake
Arrowhead into the Mojave River groundwater basin. The proposed solar energy project,
which we describe in more detail at part I.B., post, is to be located on Arrowhead Lake
Road in the far eastern portion of the City (Project Site), which consists of five to six
acres of Hesperia Farms not being used for wastewater operations.
At all times, the Project Site has been located within an area the City has zoned as
"Rural Residential" and has designated as "Rural Residential 0-0.4 units per acre" under
the City's general plan. Section 16.16.063 of the City's Municipal Code (HMC) deals
generally with alternative energy technology standards, and subsection (B) deals
2 In a 2010 report, the District described its boundaries as follows: "[The District] is
located in the Lake Arrowhead Community which includes the areas commonly known
as Lake Arrowhead, Cedar Glen, Grass Valley, Twin Peaks, Crest Park, Rim Forest,
Skyforest, Deer Lodge Park, and Blue Jay. The District's boundary and sphere of
influence are currently coterminous and encompasses approximately 13 square miles
generally bordered by a combination of section lines, parcel lines, and the Crestline
Village Water District sphere on the west; a combination of section lines and parcel lines
on the north and east; and parcel lines (north and south of State Route 18) on the south."
4
expressly with "solar farms";3 and the parties agree that the District's proposed project
qualifies as a solar farm for purposes of this ordinance. HMC section 16.16.063(B)
provides in relevant part: "Solar farms shall only be allowed on nonresidential and
nonagricultural designated properties with approval of a conditional use permit by the
planning commission. Solar farms shall not be permitted within six hundred sixty (660)
feet of a railway spur, any interstate, highway, or major arterial, arterial, or secondary
arterial roadway; or any agricultural or residentially designated property."
(<https://library.municode.com/ca/hesperia/codes/code_of_ordinances/237774?nodeId=T
IT16DECO_CH16.16LAUSDE_ARTIIIADUS_16.16.063ALENTEST> [as of July 19,
2019].)
B. The District's Hesperia Farms Solar Photovoltaic Project & the City's Objections
In January 2014, the District received an analysis from an outside engineering
consultant regarding the potential development of solar power at its Hesperia Farms site
(the Solar Project). In June 2014, the District's board of directors (Board) created a Solar
3 In December 2015, at the time the District first claimed an exemption for the Solar
Project, the HMC contained 17 separate titles.
(<https://library.municode.com/ca/hesperia/codes/code_of_ordinances/237774?nodeId=S
UHITA> [as of July 19, 2019].) Section 16.16.063 was entitled "Alternative energy
technology standards" and was found at title 16 ("Development Code"), chapter 16.16
("Land Use Designations"), article III. ("Additional Uses").
(<https://library.municode.com/ca/hesperia/codes/code_of_ordinances/237774?nodeId=T
IT16DECO_CH16.16LAUSDE_ARTIIIADUS_16.16.063ALENTEST> [as of July 19,
2019].) HMC section 16.16.063 reads the same today
(<https://library.municode.com/ca/hesperia/codes/code_of_ordinances?nodeId=TIT16DE
CO_CH16.16LAUSDE_ARTIIIADUS_16.16.063ALENTEST> [as of July 19, 2019])
and has not changed since June 2012 (Ord. No. 2009-12, § 3, 2-16-10; Ord. No. 2011-08,
§ 3 (Exh. A), 8-2-11; Ord. No. 2012-07, § 3 (Exh. A), 6-19-12).
5
Power Alternatives Ad Hoc Committee which then considered presentations from three
solar power vendors for the Solar Project.
By late May of 2015, the City provided the District with comments to an Initial
Study and Mitigated Negative Declaration for the Solar Project (initial mitigated negative
declaration) that the District prepared and circulated pursuant to the California
Environmental Quality Act (CEQA). According to the City, the Solar Project was "a
0.96 megawatt solar facility on five to six acres within the City" with "a total of 2,160
solar panels" on a site that "will continue to be used for growing forage crops and
disposal of treated effluent that is generate by wastewater treatment plants in Lake
Arrowhead." More specifically, the City commented that the initial mitigated negative
declaration both "requires a general plan amendment and zone change to be [filed] with
the City" and "does not address how the project will avoid being within 660 feet from the
property to the south, which is agriculturally designated," in violation of HMC
section 16.16.063(B) (which precludes solar farms within 660 feet of agriculturally
designated property).
In August 2015, the District entered into a generator interconnection agreement
with Southern California Edison Company (Edison), whereby the District's Solar Project
would produce electricity for use by Edison through Edison's electrical grid distribution
system in exchange for bill credits that Edison would apply to the District's ongoing
6
obligations to Edison for energy use at any location in the District.4 To this end, in
October 2015, the Board passed a resolution that authorized and approved the award of
an energy services agreement to SunPower Corporation, Systems (SunPower), subject to
conditions not relevant to this appeal.5 Pursuant to this resolution, in November 2015,
the District and SunPower entered into a formal "Engineering, Procurement and
Construction Agreement," according to which SunPower agreed to design, engineer,
construct, and install a 939.6 kW-dc single-axis tracking solar photovoltaic generation
system at the Project Site.
Following consideration of the comments from the City (described ante) and
others in response to the May 2015 initial mitigated negative declaration, the District
gave notice of "a public hearing at which the Board may make findings pursuant to
Section 53096 of the Government Code that there is no feasible alternative to the
proposed location of the solar project at the Hesperia Farm Solar Photovoltaic Project
4 Public Utilities Code section 2830 authorizes a local government renewable
energy self-generation bill credit transfer program (RES-BCT Program). Such a program
allows a special district, like the District here, to use and develop raw land for facilities
for the generation of energy and then, based on the energy created by those facilities,
apply for a bill credit to any districtwide location. (Ibid.)
5 The District took its action pursuant to section 4217.10 et seq., which provides in
part that "public agencies may develop energy conservation, cogeneration, and alternate
energy supply sources at the facilities of public agencies in accordance with this chapter."
(§ 4217.10.) In this context, an energy services agreement "means a contract entered into
by a public agency with any person, pursuant to which the person will provide electrical
. . . energy . . . to a public agency from an energy conservation facility"; and an energy
conservation facility "means alternate energy equipment, cogeneration equipment, or
conservation measures located . . . on land owned by public agencies." (§ 4217.11,
subds. (f), (e).)
7
Site and that, by four-fifths vote of the Board, the City of Hesperia's zoning ordinance is,
therefore, rendered inapplicable."6 The City responded to the notice, repeating its
original objections—namely, that the Solar Project required an amendment to the City's
general plan and a change in location to avoid a violation of HMC § 16.16.063(B)—and
setting forth its position in opposition to the District's potential actions to render the
City's local land use regulations inapplicable to the Solar Project.
At the District's December 15, 2015 meeting, the Board adopted resolution
No. 2015-14, which rendered the City's zoning ordinances inapplicable to the District's
Solar Project. In part, this resolution provides as follows:
"2. The Board finds and determines that the [Solar] Project
constitutes facilities for the generation of electrical energy, and
therefore meets the criteria for exemption from . . . City of Hesperia
zoning ordinances under Government Code section 53091,
subdivision (e).
"3. The Board finds and determines that for over a year the District's
Solar Power Alternatives Ad Hoc Committee and SunPower met on
numerous occasions and, with District staff, thoroughly reviewed
and analyzed all potential locations for the [Solar] Project. The
District does not own any other property that has the acreage and
necessary components for a successful solar project due to terrain,
trees, and weather conditions. Further, in order to comply with the
City's solar ordinance, the District would have to redesign and
relocate the Project away from the nearest residentially designated
property, which would include the installation of additional AC
conductor between the solar array and the Point of Interconnection
[with Edison's grid]. This would result in a significant cost increase,
measurable power loss, and project delay.
6 The District also revised the initial mitigated negative declaration in ways not
significant to this appeal and gave notice that, at the same hearing, the Board would be
considering the revised declaration and approval of the Solar Project under CEQA.
8
"4. Thus, the Board finds it is not feasible to install the solar
photovoltaic system at any other locations other than the [Project
Site].
"5. Based on the above-findings, the Board finds and determines
that pursuant to Government Code section 53096, there is no feasible
alternative to the location of the [Solar] Project at the Hesperia
Farms site, by four-fifths vote of the Board, City of Hesperia zoning
ordinances, including but not limited to, City of Hesperia Ordinance
No. 2012-07[7], are rendered inapplicable to the Project. (Sic.)"
The District gave, and on December 18, 2015, the City received, notice of the Board's
December 15 action, including a copy of resolution No. 2015-14.
C. The Litigation
In February 2016, the City filed the underlying action—i.e., a petition and
complaint—seeking a writ of mandate and declaratory and injunctive relief. The City
named as respondents/defendants the District and the Board and named as real parties in
interest SunPower, Edison, and a third party with which the District had contracted
related to the Solar Project. The District, the Board, and SunPower filed answers to the
petition/complaint. Edison and the third party filed disclaimers of interest in the dispute,
and the City dismissed the action without prejudice as to these two real parties in interest.
All three causes of action are based on the City's contentions that the Solar Project
is beyond the scope of the District's authority and that the siting, development, and
construction of the solar farm are subject to the City's zoning ordinances. In the first
cause of action, the City alleged that the District lacked the authority to undertake the
7 City of Hesperia Ordinance No. 2012-07 contains the most recent amendments to
HMC section 16.16.063. (See fn. 3, ante.)
9
Solar Project, because the District was only authorized to provide water and wastewater
treatment service, yet the anticipated services associated with the Solar Project involved
the provision of electricity. In the second cause of action, the City alleged that the
District was not exempt from the City's zoning ordinances. In the third cause of action,
the City sought declarations, consistent with the first two causes of action, that the Solar
Project was both beyond the scope of the District's authority and subject to the City's
zoning regulations.
The trial court conducted proceedings in mandate on the first two causes of action.
(Code Civ. Proc., § 1084 et seq.) Following an opening brief by the City, the District
filed an opposition (in which SunPower joined), and the City filed a reply to the
opposition. Counsel for the parties presented oral argument, after which the court took
the matter under submission, ultimately issuing a written ruling in October 2016.
Deciding that the District has authority under the RES-BCT Program (Pub. Util.
Code, § 2830) to produce electricity for Edison, the trial court denied the writ of mandate
under the first cause of action.
The trial court granted the City's requested relief as to the second cause of action,
issuing the writ of mandate, on the following grounds: The exceptions found at
sections 53091(e) and 53096(a)—which, if applicable, would exempt the Solar Project
from the City's zoning ordinances—do not apply to the Solar Project; and the
administrative record does not contain substantial evidence to support the District's
finding that there is no feasible alternative to installing the solar farm at any location
other than the Project Site.
10
At the City's request, the trial court dismissed the third cause of action for
declaratory relief.
In December 2016, the court entered judgment consistent with its October 2016
written ruling; and in February 2017, the court entered the same judgment with a copy of
the written ruling, nunc pro tunc to the December 2016 date (Judgment).8 In summary,
the Judgment ordered in part as follows: The requested relief in the first cause of action
(based on whether the District has the authority to produce electricity) is denied; the
requested relief in the second cause of action (based on whether the District must comply
with the City's zoning ordinances) is granted; and a writ of mandate shall issue, requiring
the District and the Board either to comply with the City's zoning ordinances prior to
implementing the Solar Project or, alternatively, to forego the project.9
The District timely appealed from the Judgment.
8 The Judgment, which indicates that it is "NUNC PRO TUNC" does not state the
nunc pro tunc date. Since the February 2017 document is identical in all respects to the
December 2016 document, except that the later document contains the referenced
"Exhibit A," we have assumed that the court intended the February 2017 filing to relate
back to December 2016 date.
9 "If the court determines that the action was not supported by substantial evidence,
it shall declare it to be of no force and effect, and the zoning ordinance in question shall
be applicable to the use of the property by the local agency." (§ 53096, subd. (b).)
Consistent with the Judgment, the clerk of the court issued a writ of mandate; and
in response, the District and the Board filed a return.
The Judgment does not mention SunPower, other than to identify it as a party that
appeared and was represented during the proceedings in mandate. Since SunPower has
not participated in the appeal, we have no reason to consider whether the City's action
remains pending against it.
11
II. DISCUSSION
On appeal the District challenges the rulings of the trial court on the second cause
of action in which the court granted a writ of mandate, ruling in part that the District's
Solar Project was not exempt from the City's zoning ordinances. According to the
District, the trial court erred by incorrectly interpreting, and thus in failing to apply, both
the absolute exemption in section 53091(e) and the qualified exemption in
section 53096(a). We disagree. As we explain, because the District's Solar Project
includes the transmission of electrical energy, the exemption contained in
section 53091(e) does not apply to the project; and because the administrative record
does not contain substantial evidence to support the Board's finding that there is no
feasible alternative location for the Project Site, the exemption contained in
section 53096(a) does not apply to the project.
A. Standards of Review
In the second cause of action, the City sought both ordinary mandamus (Code Civ.
Proc., § 1085) and administrative mandamus (Code Civ. Proc., § 1094.5) relief.
"Traditional mandate [under Code of Civil Procedure section 1085] lies to challenge an
agency's failure to perform an act required by law"; whereas "[a]dministrative mandate
[under Code of Civil Procedure section 1094.5] applies to challenge the results of an
administrative hearing."10 (Danser v. Public Employees' Retirement System (2015) 240
10 As to traditional or ordinary mandamus: "A writ of mandate may be issued by any
court to any inferior tribunal, corporation, board, or person, to compel the performance of
an act which the law specially enjoins, as a duty resulting from an office, trust, or station,
12
Cal.App.4th 885, 890.) "It is not inconsistent to award relief under both sections 1094.5
and 1085 of the Code of Civil Procedure." (Conlan v. Bonta (2002) 102 Cal.App.4th
745, 752.)
With regard to ordinary mandamus (Code Civ. Proc., § 1085), the City alleged in
the second cause of action: "The District has a plain, clear and ministerial duty to comply
with the City's zoning ordinances and its failure to comply with the City's zoning
ordinances is arbitrary and capricious. The City has no plain, speedy and adequate legal
remedy. Therefore, the City is entitled to a writ of mandate compelling the District to
comply with City's zoning ordinances." With regard to administrative mandamus (Code
Civ. Proc., § 1094.5), the City alleged in the second cause of action: "The absence of
substantial evidence to support the District's findings of infeasibility [under
section 53096(a)] renders its findings arbitrary and capricious." Throughout the
proceedings, the parties and the trial court have, often without explanation, conflated
concepts associated with ordinary mandamus and administrative mandamus.11 Under
or to compel the admission of a party to the use and enjoyment of a right or office to
which the party is entitled, and from which the party is unlawfully precluded by that
inferior tribunal, corporation, board, or person." (Code Civ. Proc., § 1085, subd. (a).)
As to administrative mandamus: "[T]he writ is issued for the purpose of inquiring
into the validity of any final administrative order or decision made as the result of a
proceeding in which by law a hearing is required to be given, evidence is required to be
taken, and discretion in the determination of facts is vested in the inferior tribunal[.]"
(Code Civ. Proc., § 1094.5, subd. (a).)
11 For example, the trial court reviewed the District's administrative decision under
Code of Civil Procedure section 1094.5 without mentioning Code of Civil Procedure
section 1085; the Judgment does not identify the type of mandamus relief the court
awarded, although the Judgment incorporates the court's written ruling based on
section 1094.5; neither the Judgment nor the writ cites a statute, but both direct that, with
13
these circumstances, we will not rely on the labels presented or the statutes cited; instead,
we have considered the substance of the City's challenge to the District's action and the
trial court's handling of the specific challenge. (See Travis v. County of Santa Cruz
(2004) 33 Cal.4th 757, 769, fn. 5 ["where the entitlement to mandate relief has been
adequately pled, 'a trial court may treat a proceeding brought under Code of Civil
Procedure section 1085 as one brought under Code of Civil Procedure section 1094.5' "].)
Accordingly, on the record before us, given the issues, the briefing, and the trial
court's ruling—and, in particular, the City's challenge to the District's resolution
No. 2015-14, in which the Board, in an exercise of its discretion, determined that there
was no feasible alternative to installing the solar farm at any location other than the
Project Site—we will proceed under administrative mandamus, Code of Civil Procedure
section 1094.5.
On review of an administrative mandamus judgment, the inquiry is "whether there
was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) For
purposes of this analysis in the present appeal, an abuse of discretion is established "if the
[agency] has not proceeded in the manner required by law" (Code Civ. Proc., § 1094.5,
subd. (b)) or "if the court determines that the findings are not supported by substantial
regard to the proposed Solar Project, the District either comply with the City's zoning
ordinances or not proceed with the project; in its appellate briefing, although the District
does not cite either statute, it relies on caselaw involving administrative mandamus relief
(Code Civ. Proc., § 1094.5), including the standard of review; in its appellate briefing, the
City argues for review under the standard applied to ordinary mandamus, citing only
section 1085.
14
evidence in the light of the whole record" (Code Civ. Proc., § 1094.5, subd. (c)).12 " ' "In
[administrative] mandamus actions, the trial court and appellate court perform the same
function" ' "; "we do not 'undertak[e] a review of the trial court's findings or conclusions.
Instead, "we review the matter without reference to the trial court's actions." ' "
(Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1197
(Jefferson Street Ventures).) Appellate review of the agency's factual determinations in
administrative mandamus proceedings is "deferential," and "the agency's findings must
be upheld unless arbitrary, capricious, or entirely lacking evidentiary support." (State Bd.
of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977.)
" ' "When we interpret a statute, '[o]ur fundamental task . . . is to determine the
Legislature's intent so as to effectuate the law's purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
12 In cases not like the present one, where the administrative decision involves
" 'a fundamental vested right,' " a challenge to the substantiality of the evidence in
support of the administrative mandamus findings requires " 'an independent review of the
entire record to determine whether the weight of the evidence supports the administrative
findings. ' " (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926.) Here,
neither of the parties suggests, nor does the record contain a basis on which to conclude,
that the District's determinations involved a fundamental vested right. (PMI Mortgage
Ins. Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724, 729 ["Cases involving
abuse of discretion charges in the area of land use regulation do not involve fundamental
vested rights."].)
15
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute's purpose, legislative history, and public policy.' " ' " (Meza
v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856 (Meza).) In construing
a statute, the court is required "to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted, or to omit what has been inserted;
and where there are several provisions or particulars, such a construction is, if possible, to
be adopted as will give effect to all." (Code Civ. Proc., § 1858.) For these reasons,
appellate review of the trial court's interpretation of a statute is de novo. (Flethez v. San
Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 639 (Flethez)
[administrative mandamus proceedings].)
B. Section 53091(e) Does Not Provide an Exemption From the City's Zoning
Ordinances for the Solar Project
As we introduced ante, section 53091 begins with the presumption that, for
purposes of the Solar Project, the District must comply with the City's zoning ordinances.
(§ 53091, subd. (a).) The District contends that, because the absolute exemption
contained in section 53091(e) applies to the Solar Project, the project is statutorily
exempt from the City's local land use regulations. The City responds by arguing that,
because the exception to the absolute exemption contained in section 53091(e) applies to
the Solar Project, the exemption does not apply, and the District must comply with the
City's zoning ordinances.
"Because statutory language is generally the most reliable indicator of legislative
intent, we start with the language of [the statute to be construed]." (Flethez, supra, 2
16
Cal.5th at p. 640; accord, Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th
482, 490 ["the statutory language is generally the most reliable indicator of legislative
intent"].) Section 53091 contains in part the following language:
"(a) Each local agency shall comply with all applicable . . . zoning
ordinances of the . . . city in which the territory of the local agency is
situated. [¶] . . . [¶]
"(e) Zoning ordinances of a . . . city shall not apply to the location
or construction of facilities . . . for the production or generation of
electrical energy . . . . Zoning ordinances of a . . . city shall apply to
the location or construction of facilities for the storage or
transmission of electrical energy by a local agency, if the zoning
ordinances make provision for those facilities."13
Thus, under section 53091, subdivision (a) provides the rule, and subdivision (e)
provides both an exemption to the rule (on which the District relies) and an exception to
the exemption to the rule (on which the City relies). The rule is that the District, as a
local agency, "shall comply with all applicable . . . zoning ordinances" of the City
(§ 53091, subd. (a)); the exemption is that the City's zoning ordinances do not apply "to
the location or construction of facilities . . . for the production or generation of electrical
energy" (§ 53091(e)); and the exception to the exemption—i.e., resulting in an
application of the rule—is that the City's land use regulations will apply to the proposed
13 " 'Local agency' means an agency of the state for the local performance of
governmental or proprietary function within limited boundaries" and "does not include
the state, a city, a county, a rapid transit district, or a [specific type of] rail transit
district[.]" (§ 53090, subd. (a).) The parties agree that, for purposes of analyzing and
ultimately applying section 53091(e), the District is a "local agency."
The parties also agree that the City's zoning ordinances "make provision for those
facilities" proposed by the District's Solar Project, as required by section 53091(e). At a
minimum, the District's Solar Project qualifies as a "solar farm" for purposes of HMC
section 16.16.063(B), quoted in part in the text at part I.A., ante.
17
facilities if they are "for the storage or transmission of electrical energy by a local
agency, if the [City's] zoning ordinances make provision for those facilities."
(§ 53091(e).)
We proceed, "in accordance with interpretive guidelines," with the understanding
that statutory exemptions, like the first sentence of section 53091(e), must be "narrowly
construed." (City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005,
1018, fn. 12 (Lafayette) [§ 53091(e)]; accord, National City v. Fritz (1949) 33 Cal.2d
635, 636 [statutory exemptions "are to be strictly construed"].) Because the second
sentence of section 53091(e) is an exception to the exemption—i.e., it requires
application of the rule in subdivision (a)—no such limitation is placed on our
construction of the language.
Section 53091 was first enacted in 1959 and has been amended five times, the
most recently in 2002. (Stats. 1959, ch. 2110, § 1, pp. 4907-4908; Stats. 1977, ch. 435,
§ 1, pp. 1467-1468; Stats. 1984, ch. 976, § 1, pp. 3386-3387; Stats. 1997, ch. 580, § 2,
pp. 3554-3555; Stats. 2001, ch. 396, § 1, pp. 3661-3662; Stats. 2002, ch. 267, § 1,
pp. 1111-1112.) To assist us in determining the Legislature's intent in enacting the
current version of section 53091, we will summarize the development of the relevant
language during these 60 years.
The first sentence of section 53091, which now is found in a separate subdivision
(§ 53091, subd. (a)), has not changed. Thus, the starting point for the Legislature's
attempt to deal with the tension between local governments' control over land use
regulation and the state's interest in encouraging local agencies' development of electrical
18
energy has consistently required such agencies to "comply with all applicable . . . zoning
ordinances of the county or city in which the territory of the local agency is situated."
(Stats. 1959, ch. 2110, § 1, p. 4907; Stats. 1977, ch. 435, § 1, p. 1467; Stats. 1984,
ch. 976, § 1, p. 3386; Stats. 1997, ch. 580, § 2, p. 3554; Stats. 2001, ch. 396, § 1, p. 3661;
Stats. 2002, ch. 267, § 1, p. 1111 (§ 53091, subd. (a)).)
The Legislature's approach to a local agency's choices related to the location or
construction of facilities for the production, generation, storage, or production of
electrical energy, however, has changed over the years. In 1959, no local land use
regulations applied; the agencies could locate and construct such facilities as desired
under original section 53091. (Stats. 1959, ch. 2110, § 1, p. 4908.) In 1977, the
Legislature amended the statute to provide an exemption and an exception to the
exemption for specified projects. As relevant here, the 1977 amendments created an
exemption from local zoning ordinances for the location and construction by local
agencies of facilities related to "the production or generation of electrical energy"—
unless the facilities were for "the storage or transmission of electrical energy," in which
event the agencies were required to comply with the local land use regulations.
(Stats. 1977, ch. 435, § 1, p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580,
§ 2, p. 3555; Stats. 2001, ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, p. 1112
(§ 53091(e)).)
At all times since its enactment in 1959, section 53091 has also applied to local
agencies' location or construction of facilities for the production, generation, storage, or
transmission of water. (Stats. 1959, ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1,
19
p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001,
ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, p. 1111 (§ 53091).) Indeed, with one
exception, the statute treated local agencies' projects for the development of electrical
energy and of water the same insofar as exempting their proposed facilities from local
land use regulations.14 (Stats. 1959, ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1,
p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001,
ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, pp. 1111-1112 (§ 53091(e)).)
In this latter context (i.e. water facilities), we have the benefit and guidance of
established precedent, which has not been questioned or challenged for more than a
quarter of a century, that sets forth the Legislature's intent in enacting section 53091:
"Section 53091 is part of a statutory scheme—'Regulation of Local
Agencies by Counties and Cities,' sections 53090 through 53095
(Stats. 1959, ch. 2110, § 1, pp. 4907-4909)—enacted in response to
opinions[15] which broadly immunized all state agencies from local
regulatory control. [Citations.] Section 53091 evinces a legislative
intent to vest in cities and counties control over zoning and building
restrictions, thereby strengthening local planning authority. . . . [¶]
. . . When read as a statutory scheme, the obvious intent of the
Legislature was to strike a balance between the value of local zoning
14 The exception is that, with regard to water facilities, storage and transmission are
not treated differently than production and generation. For water facilities, all
development phases are exempt from the application of local zoning. (Stats. 1959,
ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1, p. 1468; Stats. 1984, ch. 976, § 1,
p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001, ch. 267, § 1, p. 3662; Stats. 2002,
ch. 267, § 1, pp. 1111-1112 (§ 53091(e) ["Zoning ordinances of a county or city shall not
apply to the location or construction of facilities for the production, generation, storage,
treatment, or transmission of water"]).)
15 In a footnote at this point, the Lafayette opinion cites Hall v. City of Taft (1956) 47
Cal.2d 177 and Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417.
20
control by cities and counties and the state interest in efficient
storage and transmission of water. [Citations.] [¶] . . . [¶] . . . The
primary objective of the statutory scheme is to maintain local control
of land use decisions (§ 53091), with carefully specified exceptions
where necessary to further countervailing interests." (Lafayette,
supra, 16 Cal.App.4th at pp. 1013, fn. omitted, 1014, 1017.)
We agree with the Lafayette court's description of the legislative intent in enacting
section 53091 for the location or construction of facilities for the production, generation,
storage, or transmission of water and conclude that the intent is the same where, as here,
the proposed facilities are for the production or generation of electrical energy. For our
purposes, therefore, in enacting the current version of section 53091, the Legislature
intended "to vest in cities and counties control over zoning and building restrictions,
thereby strengthening local planning authority" in order "to strike a balance between the
value of local zoning control by cities and counties and the state interest" in the location
and construction of facilities for the production, generation, storage, and transmission of
electrical energy. (See Lafayette, supra, 16 Cal.App.4th at pp. 1013, 1014.) In short, for
the development of electrical energy by local agencies, the legislative intent is "to
maintain local control of land use decisions . . . with carefully specified exceptions where
necessary to further countervailing interests." (Id. at p. 1017.)
Having considered and determined the Legislative intent in enacting and amending
section 53091(e), we now turn to its application in the present case.
On two grounds, the trial court ruled that the District's Solar Project was not
exempt from the City's zoning ordinances. First, the court declined to apply
section 53091(e)'s exemption because the Solar Project was merely "incidental"—i.e., the
21
proposed facilities were not "integral" or "directly and immediately" related—to the
District's authorized services to provide water and wastewater treatment. Second, the
court concluded that, since a principal purpose of the facilities to be developed was to
export electrical energy to Edison's electrical grid distribution system under the RES-
BCT program, the facilities necessarily included the transmission of electrical energy—to
which the City's zoning ordinances applied, as an exception to the exemption under
section 53091(e).
On appeal, the District initially argues that the nature of its authorized services is
irrelevant to a determination of the potential application of section 53091(e)'s absolute
exemption. The District next argues that, in determining the legislative intent, we should
apply the "plain meaning" to the words in the exemption, but not to the words in the
exception to the exemption; for those words, the District argues, the trial court erred in
applying a "literal interpretation."
In its brief on appeal, the City fully supports the trial court's rulings. First the City
contends that, because the Solar Project is not integral to the District's authorized
operations, the absolute exemption in section 53091(e) does not apply. Next, the City
argues that an application of the " 'usual and ordinary meaning' " or " 'plain meaning' " of
the words in the exception to the absolute exclusion leads to the conclusion that the Solar
Project involves the "transmission of electrical energy by a local agency," therefore
requiring the District to comply with the City's land use regulations.
As we explain, we disagree with the court's first ruling, but agree with the second;
and since the exception to exemption applies, the trial court properly concluded that
22
section 53091(e) did not excuse (i.e., exempt) the District from complying with the City's
zoning ordinances prior to proceeding with the Solar Project.
1. The Exemption in the First Sentence of Section 53091(e)
On appeal, the District persuasively argues that an application of the plain
meaning of the words in the first sentence of section 53091(e) results in an exemption
from the City's zoning ordinances for the District's Solar Project. As applicable to the
project, the first sentence provides: "Zoning ordinances of a county or city shall not
apply to the location or construction of facilities . . . for the production or generation of
electrical energy." (§ 53091(e).) There is no question—indeed, the City does not
challenge—that the Solar Project involves "the location or construction of facilities . . .
for the production or generation of electrical energy." Thus, as directed by our Supreme
Court under Meza, supra, 6 Cal.5th at page 856, we will give this statutory language "a
plain and commonsense meaning" and follow this meaning, since there is no suggestion
that "a literal interpretation would result in absurd consequences the Legislature did not
intend".
We disagree with the City's argument that, because "the [Solar P]roject is not
integral to the District's authorized operations," section 53091(e) does not apply to the
project. (Some initial capitalization omitted.) In support of its position, which is
consistent with the trial court's ruling, the City relies on Lafayette, supra, 16 Cal.App.4th
1005. In Lafayette, the defendant water district proposed to expand and improve support
facilities at a water filtration plant that treated raw water for delivery to the district's
customers. (Id. at p. 1010.) After the plaintiff City of Lafayette denied the district's
23
application for a use permit for the project, the district declared its project exempt from
the city's zoning and building ordinances under then-applicable former sections 53091
(Stats. 1984, ch. 976, § 1, pp. 3386-3387) and 53096 (Stats. 1977, ch. 435, § 2, p. 1468).
(Lafayette, at pp. 1010-1011.) Like the present case, the city then sued the district,
alleging claims for a writ of administrative mandamus and for injunctive and declaratory
relief. (Id. at p. 1011.) Also like the present case, the issue in Lafayette was whether the
district's proposed project was exempt from the city's land use regulations. (Id. at
p. 1012.)
The Lafayette court declined to apply former section 53091's exemption to the
district's proposed project. The court first concluded that, because the project was for the
construction of "a support facility[,] it does not actually perform the function of
generating, transmitting or storing water"—a requirement for the absolute exemption in
former section 53091. (Lafayette, supra, 16 Cal.App.4th at p. 1014.) Rather, the
Lafayette court contrasted, the water district's project "is a facility for the storage of
materials and equipment necessary for maintenance and repair of aqueducts, pipelines,
[filter] plants and reservoirs"—which is not mentioned in former section 53091.
(Lafayette, at p. 1014.) The court then held that, since "the absolute exemption of
section 53091 was intended to be limited to facilities directly and immediately used to
produce, generate, store or transmit water," the exemption did not apply to the district's
project. (Lafayette, at p. 1014.)
According to the City, Lafayette limits the application of the absolute exemption
in section 53091(e) to agencies "whose purpose is providing water or electricity" and
24
whose projects involve "siting facilities necessary and indispensable to their authorized
functions." In arguing that section 53091(e) does not apply to the Solar Project because
"the project is not integral to the District's authorized operations" (some initial
capitalization omitted), the City focuses on the following facts: The District's purpose is
to provide water and wastewater treatment services, yet the Solar Project will neither
provide such services nor provide electrical energy that will be used directly in providing
such services since the power will be uploaded to Edison's electrical grid. We disagree
with the City's suggested application of Lafayette to the present case.
In Lafayette, the court ruled only that the exemption provided at former
section 53091 did not apply because, as potentially applicable in that case, the exemption
itself is limited to "the location or construction of facilities for the production, generation,
storage, or transmission of water[.]" (Former § 53091, italics added; Stats. 1984,
ch. 976, § 1, p. 3387; italics added.) That is to say, the limitation to the application of
section 53091 in Lafayette is based on the purpose of the proposed facilities,16 not (as
argued by the City) on the purpose of the agency developing the proposed facilities. In
not applying Lafayette in the present case, we do not disagree with it, only with what the
City contends it holds.
16 Like current section 53091(e), at the time of the Lafayette opinion in 1993, the
absolute exemption in former section 53091 also applied to "the location or construction
of facilities . . . for the production or generation of electrical energy[.]" (Former
§ 53091, italics added; Stats. 1984, ch. 976, § 1, p. 3387.)
25
2. The Exception to the Exemption in the Second Sentence of Section 53091(e)
Having concluded that the plain and commonsense meaning of the first sentence
of section 53091(e) would allow an exemption from the City's zoning ordinances for the
Solar Project, we next consider whether the exception to the exemption applies. In this
regard, the subdivision's remaining sentence provides: "Zoning ordinances of a county or
city shall apply to the location or construction of facilities for the storage or transmission
of electrical energy by a local agency, if the zoning ordinances make provision for those
facilities." (§ 53091(e).) Under this exception, therefore, even where an agency's project
is exempt from local zoning (under the first sentence), if the project involves "facilities
for the storage or transmission of electrical energy," then the exemption is inapplicable
(under the second sentence), and the agency must comply with local zoning ordinances
that provide for such facilities.
As we explain, we agree with the trial court's ruling that, because the Solar Project
includes the "transmission of electrical energy," the City's zoning ordinances—which
provide for such facilities (see fn. 13 and related text, ante)—apply to the Solar Project
under section 53091(e).17
Focusing on the plain language of the statute, the trial court considered the
facilities envisioned in the Solar Project in the context of a dictionary definition of
"transmission" and concluded that the project involved the transmission of electrical
energy by a local agency:
17 There is no argument on appeal that the Solar Project involved facilities for
the storage, as opposed to the transmission, of electrical energy.
26
" 'Transmission' is defined as 'an act, process, or instance of
transmitting' and 'something that is transmitted.' Transmit means
'to send or convey from one person or place to another.'
(Merriam-Webster's Collegiate Dictionary (11th ed. 2004) p. 1329.)
"When the [Solar] Project and its purpose are considered, the [Solar]
Project involves the transmission of electrical energy by a local
agency, because its purpose is to transmit electricity to Edison under
its RES-BCT Program. The District will generate electricity and
transfer it to Edison in order to obtain credits to offset the District's
energy consumption by other District facilities." (Italics added.)
Reasoning that the Solar Project involved the transmission of electrical energy, the trial
court concluded that the exception to the exemption applied—and correspondingly ruled
that the absolute exemption in section 53091(e) did not apply.
In our de novo review, we agree that the Solar Project involves the "transmission"
of electrical energy. In particular, we are persuaded by language in the August 2015
generator interconnection agreement between the District and Edison, pursuant to which
the parties agreed that District's energy generating facility would "interconnect with, and
operate in parallel with," Edison's electrical grid distribution system.
The agreement expressly provides that "the basis for the Parties entering into this
Agreement is that [the District] will export electrical energy to the grid" and that, after
generating the electricity, the District will have the responsibility for "making all
necessary arrangements (including scheduling) for delivery of electricity."18 (Italics
added.) In this context, the usual and customary meaning of the word "export" is "to
18 Consistently, Edison's May 2015 System Impact Study on the Solar Project
indicates that the power generated by the District "would be delivered to the [Edison]
system at the [point of change of ownership]." (Italics added.)
27
carry away . . . to transmit or cause the spread of" (Webster's Third New Internat.
Unabridged Dict. (2002) p. 802, col. 2, italics added) or "to send or transmit . . . to
another place" (Random House Unabridged Dict. (2d ed. 1993) p. 682, col. 2, italics
added); the usual and customary meaning of the word "delivery" is the "transfer of the
body or substance of a thing" (Webster's, at p. 597, col. 3, italics added) or "a formal act
performed to make a transfer of property legally effective" (Random House, at p. 528,
col. 1, italics added); and, in both dictionaries, to "transfer" means to "transmit."
(Webster's, at p. 2427, col. 1; Random House, at p. 2009, col. 3.)
On appeal, the District argues against using the plain meaning of the word
"transmission," because, according to the District, such a definition "would prohibit any
electrical energy facility from qualifying for the Absolute Exemption [under
section 53091(e)], as there must always be some mechanism to convey the electrical
energy produced or generated for use."
We are not troubled by the possibility that the absolute exception in
section 53091(e) may never apply to the location or construction of electrical energy
facilities. In the same legislation that first amended section 53091 to include the
exception to the exemption, the Legislature also enacted section 53096(a), which
provides a qualified exemption to a local government's land use regulations under certain
conditions. (Stats. 1977, ch. 435, §§ 1 [§ 53091], 2 [§ 53096], pp. 1467-1469.) Indeed,
in the newly enacted statute, the Legislature expressly dealt with providing an exemption,
albeit qualified, for facilities related to the transmission of electrical energy: At that time,
former section 53096(a) provided that, "[n]otwithstanding [section 53091]," a local
28
agency is authorized to render a city's or county's zoning ordinances inapplicable to any
proposed use of its property—including facilities related to the storage or transmission of
electrical energy—upon a vote of four-fifths of the members of the local agency that
there is no feasible alternative to the proposed use by the agency. (Stats. 1977, ch. 435,
§ 2, p. 1468, italics added.19) Thus, even if—as the District posits without discussion—
the absolute exception in section 53091(e) may never apply to the location or
construction of facilities for the production or generation of electrical energy, the
qualified exception in section 53096(a) is available if four-fifths of the agency's board
determines there is no feasible alternative to the proposed use.
The District presents two arguments as to why it believes the dictionary
definition—i.e., the usual and customary meaning—of "transmission" should not be
applied in this case. Neither is persuasive.
First, the District relies on its understanding that, in the 1977 amendments to
former section 53091, the Legislature removed the prior exemption from local zoning
ordinances for facilities that store or transmit energy "in response to complaints over
the placement of 'large transmission poles in residential neighborhoods' in 1976 by
[one specifically identified utility district]."20 Based on this understanding, the District
19 Current section 53096(a) is not substantively different. (Stats. 2002, ch. 267, § 2,
pp. 1112-1113.) We discuss section 53096(a) in greater detail at part II.C., post.
20 The District relies on the Enrolled Bill Report of the Governor's Office of
Planning and Research. An enrolled bill report " 'is prepared by a department or agency
in the executive branch that would be affected by the legislation. Enrolled bill reports are
typically forwarded to the Governor's office [after the Legislature has passed the
29
then argues that, by enacting the legislation that included the exception (for facilities that
store or transmit electrical energy) to the exemption (for facilities that produce or
generate electrical energy), the Legislature "intended to cover large transmission lines or
poles transmitting energy to customers, not any form of transmitting electrical energy to
the grid." (Italics added.) We disagree. The fact that a legislator's constituents may have
complained about the placement of large transmission poles is not indication of a
legislative intent to limit the application of the legislation to large poles. We do not infer
legislative intent from a statement made by a non-legislator after passage of the
legislation (see fn. 20, ante). (Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1369
[post-enactment statement by a person who was not a member of the Legislature "is
entitled to virtually no weight"].) In any event, the District's objection is not to the trial
court's use of the plain meaning of the word "transmission"; the District's objection is that
the trial court did not infer a legislative intent to limit the application of the plain meaning
of the word to instances where the transmission was effected by large lines or poles.
There is no basis on which to infer such an intent, since the Legislature could have
included such limiting language if that was its intent.
Second, the District argues that its Solar Project does "not include a 'transmission'
component as the energy generated by the Solar Project would flow through the meter at
the interconnection facilities to the existing [Edison] distribution system under the
legislation and] before the Governor decides whether to sign the enrolled bill.' " (In re
Lucas (2012) 53 Cal.4th 839, 856, fn. 13.) Based on its date and contents, this appears to
be the case with the enrolled bill report on which the District relies; it was prepared by a
staff member and signed by the deputy director of the Office of Planning and Research.
30
Interconnection Agreement and the RES-BCT Program." The District relies on Public
Utilities Code section 2830, which applies to RES-BCT programs like Edison's and
provides at subdivision (b) that, for purposes of the interconnection agreement between
Edison and the District, the District may only participate if nine specified conditions are
met. One of these requirements is that "[a]ll costs associated with interconnection are the
responsibility of the [District]"; and "[f]or purposes of this paragraph, 'interconnection'
has the same meaning as defined in [Public Utilities Code] Section 2803 . . . ."21 (Pub.
Util. Code, § 2830, subd. (b)(6).) As they apply to the Solar Project, however, Public
Utilities Code sections 2830, subdivision (b)(6), and 2803 tell us only that:
"Interconnection" means the facilities necessary to connect the District's facilities for
producing or generating energy with "the existing transmission facilities" of Edison; and
the District is responsible for the costs associated with this interconnection. Edison's
"existing transmission facilities" are irrelevant to a consideration whether the Solar
Project will involve the District's "transmission of electrical energy." Stated more
generally, those two statutes in the Public Utilities Code—and, in particular, their use of
the word "interconnection"—do nothing to assist in providing either a definition of, or the
legislative intent in using, the word "transmission" for purposes of applying Government
Code section 53091(e)'s exception to the exemption to local zoning ordinances to
21 Public Utilities Code section 2803 provides in full: " 'Interconnection' means the
facilities necessary to physically connect the energy source of and the point of use by a
private energy producer with the existing transmission facilities of a public utility, and
shall include any necessary transformation, compression or other facilities necessary to
make such interconnection effective."
31
facilities for the "transmission of electrical energy" in the production or generation of
electrical energy. (See Freitas v. County of Contra Costa (1994) 28 Cal.App.4th 163,
172 [cannot rely on meaning of a word in one statutory scheme for purposes of
determining the meaning of the same word in a different, even if related, statutory
scheme—especially when found in different codes]; Union Iron Works v. Industrial
Accident Com. of California (1922) 190 Cal. 33, 43 ["The fact that a word or phrase is
common to both statutes will not suffice to make those decisions [under one statute] a
controlling criterion for the construction of the statute before us."].)
Since the energy generated by the Solar Project would, according to the District,
"flow through the meter at the interconnection facilities to the existing [Edison]
distribution system," we have little difficulty concluding that this "flow" is a
"transmission" under the plain meaning of the word "transmission." Moreover, since, as
the District acknowledges, the Solar Project "requires the installation of approximately
250 feet of underground cable for interconnection to [Edison's] facilities," we also have
little difficulty concluding that, because cable is necessary for "interconnection to
[Edison's] facilities," the project involves the "transmission of electrical energy" for
purposes of the exception to the exemption in section 53091(e).22
22 We reject any suggestion that there is no transmission of electrical energy because,
in the District's words, "only . . . approximately 250" feet of cable is required for
interconnection. (Italics added.) Section 53091(e) does not contain any distance
limitation, and the District does not explain why we should infer one.
32
In conclusion, the plain meaning of "transmission" is to send or export, and there
is no basis on which to conclude that, in using the word "transmission" in
section 53091(e), the Legislature meant anything else.
For the foregoing reasons, the District did not meet its burden of establishing that
the trial court erred in ruling that, for purposes of the proposed Solar Project,
section 53091(e) does not provide the District with an absolute exemption from
complying with the City's zoning ordinances. We next consider whether, as the District
also contends, section 53096(a) provides a qualified exemption for the Solar Project.
C. Section 53096(a) Does Not Provide an Exemption from the City's Zoning
Ordinances for the Solar Project
Even where a local agency is unable to take advantage of the absolute exemption
in section 53091(e) from complying with local land use regulations, section 53096(a)
provides a qualified exemption for a local agency's proposed use of property for facilities
"related to" the storage or transmission of electrical energy:
"Notwithstanding any other provision of this article, the governing
board of a local agency, by vote of four-fifths of its members, may
render a city or county zoning ordinance inapplicable to a proposed
use of property if the local agency at a noticed public hearing
determines by resolution that there is no feasible alternative to its
proposal. The governing board may not render a zoning ordinance
inapplicable to a proposed use of property when the proposed use of
the property by the local agency is for facilities not related to storage
or transmission of water or electrical energy, including, but not
limited to, warehouses, administrative buildings or automotive
storage and repair buildings." (§ 53096(a), italics added.)
"Parsing the double negative [in the second sentence], this says a local agency may
render a zoning ordinance inapplicable to facilities 'related to' the storage or transmission
33
of [electrical energy]" upon the requisite showing and approval by four-fifths of the
agency's board. (Delta Wetlands Properties v. County of San Joaquin (2004) 121
Cal.App.4th 128, 140.) As defined for purposes of section 53096(a), "feasible" means
"capable of being accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, social, and technological factors."
(§ 53096, subd. (c).)
Here, in compliance with section 53096(a)'s procedural requirements, the Board
found and determined as follows in resolution No. 2015-14:
"3. . . . The District does not own any other property that has the
acreage and necessary components for a successful solar project due
to terrain, trees, and weather conditions. Further, in order to comply
with the City's solar ordinance, the District would have to redesign
and relocate the Project away from the nearest residentially
designated property, which would include the installation of
additional AC conductor between the solar array and the Point of
Interconnection [with Edison's grid]. This would result in a
significant cost increase, measurable power loss, and project delay.
"4. Thus, the Board finds it is not feasible to install the solar
photovoltaic system at any other locations other than the [Project
Site].
"5. Based on the above-findings, the Board finds and determines
that pursuant to Government Code section 53096, there is no feasible
alternative to the location of the [Solar] Project at the Hesperia
Farms site, by four-fifths vote of the Board, City of Hesperia zoning
ordinances, including but not limited to, City of Hesperia Ordinance
No. 2012-07, are rendered inapplicable to the Project. (Sic.)"
34
As we explain, we agree with the trial court's ruling that the administrative record does
not contain substantial evidence to support the District's finding that there is no feasible
alternative to installing the solar farm at any location other than the Project Site.23
As we introduced ante, however, because this is an appeal from the trial court's
grant of an administrative writ of mandate under Code of Civil Procedure section 1094.5,
"we do not 'undertak[e] a review of the trial court's findings or conclusions. Instead, "we
review the matter without reference to the trial court's actions." ' " (Jefferson Street
Ventures, supra, 236 Cal.App.4th at p. 1197.) That is because " '[o]ur function is
identical to that of the trial court, as we too must determine whether substantial evidence
supports the administrative decision.' " (Hoitt v. Department of Rehabilitation (2012)
207 Cal.App.4th 513, 521; accord, Schafer v. City of Los Angeles (2015) 237 Cal.App.4th
1250, 1261 [appellate court applies the same standard of review as trial court].) " 'The
reviewing court, like the trial court, may not reweigh the evidence, and is "bound to
consider the facts in the light most favorable to the Board, giving it every reasonable
23 We note a discrepancy between what the statute requires for an application of the
exemption and what the Board resolved. Whereas section 53096(a) requires a resolution
that "there is no feasible alternative to [the local agency's] proposal," here the Board
resolved that "there is no feasible alternative to the location of the [Solar] Project." (All
italics added.) We requested and received supplemental briefing from the parties as to
the potential effect of the difference between feasible alternatives to the proposal (here,
the Solar Project) and feasible alternatives merely to the location of the proposed project
(here, the Project Site). The District and the City agree that the difference is irrelevant
for purposes of the appeal; i.e., the parties agree that the District's resolution No. 2015-14
complies with section 53096(a). Accordingly, without deciding whether the feasibility of
the local agency's proposal includes more than the location of the project, we will
assume that the Board's resolution here is statutorily compliant, and we will proceed with
explaining how, in passing resolution No. 2015-14, the District prejudicially abused its
discretion.
35
inference and resolving all conflicts in its favor." ' " (Hoitt, at p. 522; accord, Auburn
Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121
Cal.App.4th 1578, 1583.) There is a presumption that the agency's findings are supported
by substantial evidence; and since the party challenging those findings has the burden of
demonstrating otherwise, here the City must establish that the administrative record does
not contain substantial evidence to support the Board's finding that there is no feasible
alternative to the Project Site. (Schutte & Koerting, Inc. v. Regional Water Quality
Control Bd. (2007) 158 Cal.App.4th 1373, 1384.)
As difficult as it is to prove a negative—namely, that the record does not contain
substantial evidence—the City succeeded here, by establishing that, because the
administrative record does not contain any evidence of an alternative location for the
Solar Project (or evidence that no alternative exists), the record necessarily does not
contain any evidence of economic, environmental, social, or technological factors
associated with an alternative location. As we explain, by failing to base its exercise of
discretion on consideration of any alternative location for the Solar Project, the Board's
finding that "there is no feasible alternative to the location of the [Solar] Project at the
Hesperia Farms site" is not supported by substantial evidence. (Italics added.) With that
determinative finding unsupported by substantial evidence, the District's resolution to
render the City's zoning ordinances inapplicable to the Solar Project is a prejudicial abuse
of discretion for purposes of Code of Civil Procedure section 1094.5, subdivision (b).
Before deciding that the qualified exemption of section 53096(a) applies to a
proposed project, the local agency must establish, inter alia, that "there is no feasible
36
alternative to its proposal." (§ 53096(a).) In the present case that means there is no
alternative location for successfully accomplishing the Solar Project "within a reasonable
period of time, taking into account economic, environmental, social, and technological
factors." (§ 53096(c).) Although our research has not located authority that has applied
section 53096(c)'s definition of "feasible" for purposes of section 53096(a)'s qualified
exemption, we find guidance in CEQA's application of the identical definition in the
Public Resources Code.24
Under CEQA, "the policy of the state [is] 'that public agencies should not approve
projects as proposed if there are feasible alternatives or feasible mitigation measures
available which would substantially lessen the significant environmental effects of such
projects. . . .' ([Pub. Resources Code, ]§ 21002.)" (Uphold Our Heritage v. Town of
Woodside (2007) 147 Cal.App.4th 587, 597, italics added.) "In furtherance of this policy,
[Public Resources Code] section 21081, subdivision (a), 'contains a "substantive
mandate" requiring public agencies to refrain from approving projects with significant
24 CEQA contains a set of definitions to be applied throughout the statutory scheme.
(Pub. Resources Code, § 21060 et seq.) " 'Feasible' means capable of being
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors." (Pub. Resources
Code, § 21061.1.)
"We presume that the Legislature is aware of laws in existence when it enacts a
statute." (Meza, supra, 6 Cal.5th at pp. 862-863.) In this regard, the Legislature enacted
the definition of "feasible" under CEQA in 1976 (Pub. Resources Code, § 21061.1;
Stats. 1976, ch. 1312, § 5.1, p. 5891); and, using the same language a year later in 1977,
the Legislature enacted the definition of "feasible" under the qualified exemption to local
zoning regulation (former § 53096(c); Stats. 1977, ch. 435, § 2, p. 1469). Thus, we
presume the Legislature intended that "feasible" be applied the same for purposes of local
land use regulations under both CEQA and the qualified exemption in section 53096(a).
37
environmental effects if "there are feasible alternatives or mitigation measures" that can
substantially lessen or avoid those effects.' " (Uphold Our Heritage, at p. 597, italics
added; see Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San
Francisco Bay Conservation & Development Com. (2014) 226 Cal.App.4th 905, 917,
italics added ["Under CEQA, governments are to choose 'feasible' alternatives"].)
In Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167,
for example, since the CEQA-required environment impact report for a proposed hotel
development omitted consideration of whether there was a feasible alternative site, the
agency's approval of the report was "a prejudicial abuse of discretion." (Id. at p. 1180.)
The developer argued that, "because it owns the [proposed hotel] site and no other
feasible site in the general area, it would be unreasonable to require consideration of
another site as an alternative."25 (Id. at p. 1179.) The Court of Appeal disagreed. Given
the statutory definition of "feasible" and the developer's lack of evidence as to any other
site, the court concluded that there was no substantial evidence to support the developer's
statement in its environmental impact report that there were no feasible alternative
locations: "Consideration of alternatives is required . . . . The range of alternatives is
governed by the 'rule of reason,' which requires only an analysis of those alternatives
necessary to permit a reasoned choice. An [environment impact report] need not consider
25 In this regard, the District relies on its finding, as part of resolution No. 2015-14
(in which it found no feasible alternative to the Project Site), "that it does not own any
property, other than the Hesperia Farm Property, with the acreage and necessary
components for a solar project due to terrain, trees, and weather conditions." We note
that the District does not provide a record reference for substantial evidence in support of
this finding/determination.
38
an alternative, the effect of which cannot be reasonably ascertained and the
implementation of which is remote and speculative." (Id. at pp. 1177-1178.)
Likewise, here, any "rule of reason" requires consideration of alternatives. That is
because, in addition to the proposal from SunPower to develop the Solar Project at the far
southern end of the Hesperia Farms property, the Board also looked into and considered
proposals from two other solar providers that would have placed the solar farm at an
alternative location on the northern portion of the District's Hesperia Farms property.
With this knowledge, the issue becomes, at a minimum, whether the administrative
record contains substantial evidence to support the District's finding that the northern
location was not a feasible alternative.26
The City argues that an alternative location must be considered before a finding
can be made that "there is no feasible alternative to the location of the [Solar] Project at
the Hesperia Farms site" for purposes of section 53096(a). (Italics added.) The District
responds by telling us that the following two documents in the administrative record
contain "substantial evidence supporting the District's determination that there was no
feasible alternative to locating the Solar Project on the Hesperia Farms Property":
(1) a September 2014 "Water Supply, Wastewater and Alternative Energy Supply Study"
(Study) by the United States Department of the Interior Bureau of Reclamation; and
26 Consistent with Citizens of Goleta Valley v. Board of Supervisors, supra, 197
Cal.App.3d 1167, we do not propose "an inflexible rule that the availability of other sites
always must be considered or that it never need be considered. Situations differ; what is
reasonable in one case may be unreasonable in another. It is necessary to examine the
particular situation presented to determine whether the availability of other feasible sites
must be considered." (Id. at p. 1179.)
39
(2) SunPower's June 2015 "Lake Arrowhead CSD Solar Project Proposal" (Proposal). As
we explain, because neither document contains evidence of alternatives (or evidence that
no alternative exists), neither document supports the District's statement.
First, the District directs our attention to one paragraph, entitled "Solar Power," of
the Bureau of Reclamation's 748-page Study, where the Study cites "an [April 2012]
evaluation of the Hesperia [Farms property]" by SunPower, a copy of which is included
as an exhibit to the Study.27 According to the Study, the SunPower evaluation "indicates
that the District's [Hesperia Farms] property is a prime location for solar development."
The Study also indicates that SunPower's evaluation "detailed" the "[c]apital costs, utility
inflation, photovoltaic degradation, etc." associated with the Solar Project.
Second, the District relies on two sentences of SunPower's 65-page June 2014
Proposal, in which SunPower describes the Project Site "located within a solar region
categorized as 'Excellent' by the National Renewable Energy Laboratory" and "within
the heart of the best solar in the United States."
At best, this evidence supports a finding that the Project Site is a good location for
the Solar Project; however, that is not the finding at issue for purposes of
section 53096(a). For section 53096(a)'s qualified exemption to apply, section 53096(c)'s
definition of "feasible" requires the necessary finding to be there is no alternative to the
agency's proposal that is "capable of being accomplished in a successful manner within a
27 The City contends that what the District describes as "an evaluation" by SunPower
is "little more than an advertising brochure for SunPower's solar panels and lacks any
specific analysis of the District's Hesperia Farms Property."
40
reasonable period of time"; and that necessary finding must be supported by substantial
evidence of the "economic, environmental, social, and technological factors." The above-
described evidence cited to us by the District does not mention, let alone "tak[e] into
account" the feasibility factors associated with any alternative location, as required by
section 53096(c).28
In addition, the District directs our attention to another portion of the June 2014
Proposal, where, according to the District, "SunPower agreed to a performance guarantee,
which is impacted by the location of the site."29 Initially, the Proposal is not an
agreement, but rather, as its title suggests, a proposal. In any event, the existence of a
28 Elsewhere in its briefing, the District refers us to evidence from June 2014
meeting of the District's Solar Power Alternatives Ad Hoc Committee. The District relies
on evidence from a solar vendor other than SunPower related to a potential location in the
northern, rather than southern, portion of the Hesperia Farms property. The District then
tells us that it selected the southern, rather than the northern, portion of the property
"because of" this evidence from the other solar provider. However, this evidence is from
the solar vendor's analysis and presentation that "the northern site would actually be
better" and "we want to be as far north on the property as possible." More significantly,
at the December 2015 meeting during which the Board adopted resolution No. 2015-14,
there is no indication of what the Board considered or did in the context of how, if at all,
the evidence from the other solar vendor (or otherwise) supported a finding that there was
no feasible alternative to the District's proposed Solar Project—i.e., no consideration of
how, as required by section 53096, the Board took into account the four feasibility factors
in determining that a development at any other alternative location was not "capable of
being accomplished in a successful manner within a reasonable period of time."
29 The Proposal describes the performance guarantee as follows: "SunPower offers a
comprehensive, weather-adjusted energy guarantee, also referred to as 'Performance
Guarantee' or 'PeGu'. Under the PeGu, SunPower will reimburse the District during the
year of underperformance at a rate largely equivalent to the expected avoided utility cost
in that year. [¶] . . . All factors within the PeGu are negotiable. [¶] . . . [¶] Longer
terms and alternative coverage rates are available for District consideration."
41
performance guarantee from SunPower—even if we assume the guarantee is "impacted
by the location of the site"—is not evidence that there is no other location (feasible or
otherwise) for the development of a solar energy farm on the District's Hesperia Farms
property. Without consideration of any alternative location and its economic,
environmental, social, and technological factors (or evidence that no alternative exists),
SunPower's proposal of a performance guarantee cannot substantiate a finding that there
is no feasible alternative to the Project Site as required by section 53096(a).
Finally, in its reply brief on appeal, as additional support of its position that the
Hesperia Farms property does not provide a feasible alternative location, the District asks
this court to take judicial notice of four documents not included in either the
administrative record or the register of actions. Two of the documents are dated in
January 2018, and two are dated in March 2018—which is more than a year after the
nunc pro tunc date for entry of the Judgment. The City opposes the District's request. As
we explain, we deny the District's motion for judicial notice and disregard the related
argument in the District's reply brief.
In general, the rules on judicial notice that apply in civil cases (see Evid. Code,
§§ 450-460) apply in administrative mandamus proceedings. (Evid. Code, § 300; Mack
v. State Bd. of Education (1964) 224 Cal.App.2d 370, 372-375 [trial court proceedings].)
However, with narrow exceptions inapplicable here,30 our inquiry under Code of Civil
30 "Where the court finds that there is relevant evidence that, in the exercise of
reasonable diligence, could not have been produced or that was improperly excluded at
the hearing before respondent, it may enter judgment as provided in subdivision (f)
42
Procedure section 1094.5 is limited to the administrative record made before the agency.
(Paoli v. California Coastal Com. (1986) 178 Cal.App.3d 544, 551; see Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) This is
consistent with the general rule that "[r]eviewing courts generally do not take judicial
notice of evidence not presented to the trial court. Rather, normally 'when reviewing the
correctness of a trial court's judgment, an appellate court will consider only matters
which were part of the record at the time the judgment was entered.' " (Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
D. Conclusion
Under section 53091(e), for the Solar Project to be exempt from the City's zoning
ordinances, the District was required to establish that "the location or construction of
facilities" for its Solar Project both involved "the production or generation of electrical
energy" and did not involve "the storage or transmission of electrical energy." Because
the District's proposed facilities involved the transmission of electrical energy, the
District did not meet its burden of establishing that the absolute exemption contained in
section 53091(e) applied to the Solar Project.
Even where proposed facilities, like the District's Solar Project, "relate[] to" the
transmission of electrical energy, section 53096(a) allows an exemption from local land
use regulation upon a specified showing—which includes a resolution (by a vote of
remanding the case to be reconsidered in the light of that evidence; or, in cases in which
the court is authorized by law to exercise its independent judgment on the evidence, the
court may admit the evidence at the hearing on the writ without remanding the case."
(Code Civ. Proc., § 1094.5, subd. (e).)
43
four-fifths of the local agency's members) "that there is no feasible alternative to [the
agency's] proposal" in light of the four feasibility factors set forth in section 53096,
subdivision (c). Although the Board resolved as statutorily required, the administrative
record does not contain substantial evidence in support of the Board's finding that
underlies the resolution—namely, that "there is no feasible alternative to the location of
the [Solar] Project at the Hesperia Farms site." Without substantial evidence to support
the key finding necessary for the Board's vote, the District's resolution to render the City's
zoning ordinances inapplicable to the Solar Project is a prejudicial abuse of discretion
and cannot stand.
On the present record, in order for the District to have properly determined that
"there is no feasible alternative" to the proposed location of the Solar Project for purposes
of section 53096(a), the District was required to have: (1) considered alternative
locations; (2) taken into account economic, environment, social, and technological factors
associated with both the Project Site and the alternative locations; and (3) determined—
i.e., exercised discretion based on substantial evidence in the administrative record—that,
at the alternative locations, the proposal was not capable of being accomplished in a
successful manner within a reasonable period of time.
For the foregoing reasons, neither section 53091(e) nor section 53096(a) provides
an exemption from the City's zoning ordinances for the Solar Project. Accordingly, the
trial court did not err in setting aside the Board's determination that an exemption applied
and in issuing the requested writ of mandate.
44
III. DISPOSITION
The February 2017 Judgment is affirmed. The City is entitled to its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
45
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Adriana G. v Kipp Wash. Hgts. Middle Sch. (2018 NY Slip Op 06787)
Adriana G. v Kipp Wash. Hgts. Middle Sch.
2018 NY Slip Op 06787
Decided on October 11, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 11, 2018
Sweeny, J.P., Tom, Gesmer, Kern, Moulton, JJ.
7278 155371/15
[*1]Adriana G., an infant under the age of Fourteen years, etc., et al., Plaintiffs-Respondents,
vKipp Washington Heights Middle School, et al., Defendants-Appellants.
Mauro Lilling Naparty LLP, Woodbury (Matthew W. Naparty of counsel), for appellants.
Joshua Annenberg, New York, for respondents.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 18, 2017, which, inter alia, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Infant plaintiff, a student at defendant charter school, which is operated by defendants, sustained injuries that resulted in her right ring finger being amputated after it became caught in a playground fence during recess on property that is owned by nonparty City of New York and maintained by nonparty New York City Department of Education.
Defendants failed to demonstrate their entitlement to summary judgment as they have failed to show that they did not have a common-law duty to maintain the fence in a reasonably safe condition. "Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises" (see Gibbs v Port Auth. of N.Y., 17 AD3d 252, 254 [1st Dept 2005]). Although there is no evidence that defendants' special use of the playground caused a chain link in the fence to become sharp, the record suggests that defendants' employees were in possession of, occupied, and controlled access to the playground where the fence is located when the accident occurred (see Milewski v Washington Mut., Inc., 88 AD3d 853, 855 [2d Dept 2011]). Additionally, defendants failed to provide a lease agreement establishing that they did not have a duty to maintain the playground fence which, they allege, was in a common area and not part of their demised premises (cf. Vivas v VNO Bruckner Plaza LLC, 113 AD3d 401, 402 [1st Dept 2014]). It is irrelevant that other schools also occupied the premises and were also allowed to use the playground (see Williams v Esor Realty Co., 117 AD3d 480 [1st Dept 2014]).
Furthermore, defendants failed to show that the accident location was in a reasonably safe condition when the accident happened. Defendants submitted an expert professional engineer's affidavit averring that the fence was in compliance with the New York City School Construction Authority's (NYCSCA) standards (see Schmidt v One N.Y. Plaza Co. LLC, 153 AD3d 427, 428-429 [1st Dept 2017]; Griffith v ETH NEP, L.P., 140 AD3d 451 [1st Dept 2016], lv denied 28 NY3d 905 [2016]). However, plaintiffs raised a triable issue of fact because they submitted an expert affidavit from a certified playground safety inspector stating that the fence violated NYCSA's standards because her inspection revealed that it had sharp edges, and infant plaintiff's [*2]affidavit averring that the sharp edges on the top of the fence were present when the accident happened (see Berr v Grant, 149 AD3d 536, 537 [1st Dept 2017]; Alvia v Mutual Redevelopment Houses, Inc., 56 AD3d 311, 312 [1st Dept 2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2018
CLERK
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Antonio v West 70th Owners Corp. (2019 NY Slip Op 02626)
Antonio v West 70th Owners Corp.
2019 NY Slip Op 02626
Decided on April 4, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 4, 2019
Sweeny, J.P., Manzanet-Daniels, Kern, Oing, Singh, JJ.
8902 305769/14
[*1]Jason Antonio, Plaintiff-Respondent,
vWest 70th Owners Corp., Defendant-Appellant-Respondent, Titan Capital Group II LLC, Defendant, SEPI Realty, LLC, Defendant-Respondent-Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Jeremy M. Buchalski of counsel), for appellant-respondent.
Downing & Peck, P.C., New York (Marguerite D. Peck of counsel), for respondent-appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about April 25, 2018, which, insofar as appealed from as limited by the briefs, denied defendants West 70th Owners Corp. and SEPI Realty, LLC's motions for summary judgment dismissing the Labor Law § 200 and negligence claims as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.
Plaintiff claims that he was injured after slipping and falling on slippery stairs because he was directed to remove his boots while working. Defendants established prima facie that they did not exercise supervisory control over the means and methods of plaintiff's work (see Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 [1st Dept 2012]). Their principals, the homeowners, testified that they were not home on the day of the accident and that they never asked any workers to remove their boots. In opposition, plaintiff failed to raise an issue of fact as to whether the man from whom he received the instruction to remove his boots had apparent authority to direct his work (see Hallock v State of New York, 64 NY2d 224, 231 [1984]). Plaintiff was unable to identify the man, the man's employer, or the man's relationship to the homeowners. Moreover, plaintiff testified that at first he refused to take his boots off. Plaintiff called his supervisor who warned him that if he did not remove his boots he would be fired. As such, plaintiff's supervisor gave the ultimate direction to remove his boots, which establishes that the employer exercised supervisory control over the injury-producing work.
The record also shows that the stairs were not in a dangerous condition (see Cappabianca, 99 AD3d at 144). Plaintiff himself testified that there were no observable defects [*2]on the stairs, that they were not wet, and that they were free of chips and cracks. He admitted that he slipped solely because he was wearing socks with no boots (see Eichelbaum v Douglas Elliman, LLC, 52 AD3d 210 [1st Dept 2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 4, 2019
CLERK
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165 F.2d 318 (1947)
GREENFELD
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 5630.
Circuit Court of Appeals, Fourth Circuit.
December 30, 1947.
Bernard M. Goldstein, of Baltimore, Md., for petitioner.
*319 Harry Baum, Sp. Asst. Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Helen R. Carloss, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before SOPER and DOBIE, Circuit Judges, and CHESTNUT, District Judge.
SOPER, Circuit Judge.
This is an appeal from a judgment of the Tax Court sustaining the action of the Commissioner of Internal Revenue in assessing income tax deficiencies and 50% fraud penalties for the years 1934 and 1935 under Section 22(a) and 293(b), respectively, of the Revenue Act of 1934, 48 Stat. 680, 26 U.S.C.A.Int.Rev.Code, §§ 22(a), 293(b). The principal points urged by the taxpayer on this appeal are that the findings of the Tax Court are not supported by substantial evidence, and that the assessments are barred by the 3-year statute of limitations prescribed in Section 275(a) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev. Code, § 275(a).
In 1934 the taxpayer delivered to the Equitable Trust Company in Baltimore, Maryland, bearer bonds issued by the United States Government, or by Government corporations, and Equitable sold the bonds for the taxpayer and after deducting its commissions, paid him the sum of $138,318.49. Similar transactions occurred in 1935 from which the taxpayer realized the sum of $12,669.96. All the bonds in question were stolen from banks in various parts of the United States; but it is agreed that the taxpayer was not implicated in the thefts. None of the money realized from these sales was reported by the taxpayer in his returns for the years 1934 and 1935. The Commissioner was of the opinion that the proceeds were taxable as income and assessed deficiencies accordingly.
The Commissioner having assessed the deficiencies, the burden was on the taxpayer to prove them erroneous. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212; Greenwood Packing Plant v. Commissioner, 4 Cir., 131 F.2d 815. The taxpayer undertook to carry this burden and testified that in 1934 and 1935 his occupation was that of a "racing broker," that is to say, one who receives bets on horse races and transmits them to bookmakers for a commission paid by the bookmakers which in his case ranged from 1% to 2½% on the amount of the wagers. He further testified that one Frank Cole placed numerous bets with him in the years 1934 and 1935 and gave him the bonds to cover the bets. He said that although he had cashed the bonds at the Equitable Trust Company he had not retained the money but had distributed it to the bookmakers or to Cole, depending on the outcome of the wagers, and that his only income in connection with these transactions were the commissions which he received on the bets and which he reported in his returns.
The taxpayer's testimony was uncorroborated and the Tax Court did not believe it. He contends that this ruling was in conflict with the rule that uncontradicted testimony, not incredible in itself and not discredited in any way, respecting facts capable of contradiction, ordinarily must be accepted as true. Gibson v. Southern Pacific Co., 5 Cir., 67 F.2d 758; Rosenberg v. Baum, 10 Cir., 153 F.2d 10; Twentieth Century-Fox Film Corp. v. Dieckhaus, 8 Cir., 153 F.2d 893; San Francisco Association for Blind v. Industrial Aid for the Blind, 8 Cir., 152 F.2d 532. The rule, however, is subject to many qualifications and exceptions. As was said in Quock Ting v. United States, 140 U.S. 417, 420, 421, 11 S.Ct. 733, 734, 851, 35 L.Ed. 501:
"Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court; but that rule admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as completely as by direct adverse testimony; and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying may give rise to doubts of his sincerity, and create the impression that he is giving a wrong coloring to material facts. All these things may properly be considered in determining the weight *320 which should be given to his statements, although there be no adverse verbal testimony adduced."
When the testimony of the taxpayer is examined in this light, many deficiencies immediately appear. He kept no books or records in 1934 or 1935 and no record of the bets. He employed an accountant to prepare his income tax returns for these years but failed to make clear how the information necessary to the preparation of the returns was given to the accountant. He did not know Cole's business or address or the amount of Cole's bets or the source from which Cole acquired the bonds. He did not recall the name of any of the seven or eight bookmakers, most of them in Baltimore, with whom he had placed Cole's bets in these years, because he had done business since that time with one hundred and fifty bookmakers. He produced no person and no records to show that he was not the owner of the proceeds of the bonds and no checks to show the distribution of the proceeds. Under these circumstances the Tax Court was obviously justified in disbelieving the testimony of the taxpayer and in holding that he had not overcome the presumption of correctness of the Commissioner's determination that the proceeds of the bonds were taxable to him as income. See Hoefle v. Commissioner, 6 Cir., 114 F.2d 713; O'Laughlin v. Helvering, 65 App.D.C. 135, 81 F.2d 269; Cohen v. Commissioner, 2 Cir., 148 F.2d 336.
The taxpayer also advances the contention that, inasmuch as the bonds in question were stolen, he was under an obligation to return to the owners the money which he received from the sales and hence it cannot be said that he realized taxable income. This argument was not made in the Tax Court and it is open to question whether it can be asserted here; see Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; but we pass by this point since we find no merit in the argument. The taxpayer relies on the recent decision of the Supreme Court in Commissioner v. Wilcox, 327 U.S.404, 408, 66 S.Ct. 546, 90 L.Ed. 752, 166 A.L.R. 884, where the court held that embezzled money does not constitute taxable income to the embezzler because, (1) he does not hold it under any claim of right, and (2) he is subject to a definite and unconditional obligation to repay.
Neither of these elements is proved in the case at bar. The bonds were bearer bonds, negotiable upon delivery, and they were received by the taxpayer according to his testimony in good faith and without notice that they were stolen; and hence from all that appears, he was a holder in due course capable of taking title even from the thief, under the established rule. See Md.Code Ann., 1939, Art. 13, Sections 35, 71, 76; State v. Brown, 64 Md. 199, 208, 1 A. 54, 6 A. 172; Barroll v. Forman, 88 Md. 188, 40 A. 883; Davis v. West Saratoga Building Union, 32 Md. 285. The finding of the Tax Court that he did not receive the bonds as a stakeholder is quite consistent with the possibility that he received them in some other way compatible with a claim of right and without the obligation to return the proceeds to the owners. In short, the taxpayer in this instance also has failed to bear the burden of proof to show that the Commissioner's determination was wrong. He comes within the rule that "if a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent." North American Oil Consolidated v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197. See also Fleischer v. Commissioner, 8 Cir., 158 F.2d 42; McKnight v. Commissioner, 5 Cir., 127 F.2d 572.
The Commissioner made the additional determination that the deficiency in each year, or at least a part of it, was due to the fraudulent intent on the part of the taxpayer to evade the tax and hence, pursuant to Section 293(b) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 293 (b), the Commissioner assessed a 50% penalty for each year; and the Tax Court, upon consideration of all the evidence, sustained the finding. In respect to this issue the burden of proof was upon the Commissioner; *321 26 U.S.C.A.Int.Rev.Code, § 1112; but the findings of the Tax Court, if supported by substantial evidence, are conclusive. Helvering v. Kehoe, 309 U.S. 277, 60 S.Ct. 549, 84 L.Ed. 751.
The evidence before the Tax Court included proof tending to show the following situation: The taxpayer reported a gross income of $7825.58 for 1934 and $2897.80 for 1935, but failed to report as income any part of the sum of $138,318.49 received in 1934 or the sum of $12,669.95 received in 1935. He kept no record of his transactions, produced no corroborating witnesses, failed to give the business or address of the person from whom these large receipts were alleged to have been derived or to name the persons in Baltimore with whom the local business was transacted. In addition he reported the receipt of betting commissions of only $725.45 in 1934 when, according to his own statement, over $138,000 of betting money on which commissions ranged from 1 to 2½% passed through his hands. The incredible testimony offered by the taxpayer, his remarkable lack of memory and the absence of ordinary business records all combine to indicate a purpose to conceal and deceive which ordinarily accompanies fraudulent activities.
Since the Tax Court rejected the taxpayer's testimony as to the nature of the bond transactions, and the Commissioner's determination of the deficiencies is accordingly sustained, the outstanding and unexplained fact, relative to the issue of fraud, remains in the case that during the tax years the taxpayer in some mysterious way received large sums of money which he failed to make record of in any businesslike fashion or to include in his income tax returns. We therefore reach the conclusion, as the courts have frequently done in similar situations, that there was substantial evidence to support the Tax Court's finding that the deficiencies were due to fraud with intent to evade the tax. See Maddas v. Commissioner, 3 Cir., 114 F.2d 548; Hoefle v. Commissioner, 6 Cir., 114 F. 2d 713; Kenney v. Commissioner, 5 Cir., 111 F.2d 374; O'Dwyer v. Commissioner, 5 Cir., 110 F.2d 925; Rogers v. Commissioner, 6 Cir., 111 F.2d 987.
In the light of this conclusion, there is no merit in the taxpayer's contention that the statute of limitations barred the determination of the deficiencies since Section 276(a) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 276(a), provides that the limitation period is not applicable in the case of a fraudulent return with intent to evade the tax.
Affirmed.
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622 S.E.2d 18 (2005)
275 Ga. App. 787
WILSON et al.
v.
EDWARD DON & COMPANY.
No. A05A1161.
Court of Appeals of Georgia.
September 28, 2005.
Reconsideration denied October 13, 2005.
*19 Stephen Weizenecker, Abdollah Ammari, Susan Shaw, Weizenecker, Mottern & Fisher, P.C., Atlanta, for Appellants.
Marion Stokes, Stokes, Lazarus & Carmichael, Rachel Humphrey, Atlanta, for Appellee.
MILLER, Judge.
Earl Wilson appeals from a grant of summary judgment to Edward Don & Company (Edward Don) for money due, interest, and attorney fees in connection with Wilson's account with Edward Don for restaurant supplies. We find no error and affirm.
On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga.App. 250, 510 S.E.2d 541 (1998).
So viewed, the evidence shows that on November 12, 1999, Wilson executed a credit application on behalf of Greenville Shrage Company & Investments, d/b/a King Franchise, Inc. (Greenville Shrage), with Edward Don. The application included a Terms Agreement as well as an Individual Personal Guaranty, which promised "prompt payment and performance when due of any indebtedness or obligations owed by applicant to [Edward] Don." The agreement also provided that in cases of nonpayment, Edward Don would recover attorney fees as well as 12 percent annual interest. Over the next two years, Wilson received food service equipment and supplies worth $57,322.45 from Edward Don without paying for them.
Edward Don then brought suit for money owed under the agreement and on account, including interest and attorney fees. Wilson filed a verified answer denying the obligations, and alleging that "`Greenville Shrage & Invest' is not [a] company or a dba of Defendant and is instead a mistake by Plaintiff in its book keeping." Edward Don then moved for summary judgment on the basis of an affidavit from its legal coordinator, Rita Trotter, avowing that the account was overdue in the amount of $45,855.21. The account statement attached to the Trotter affidavit showed, however, that the amount due was actually $57,322.45. Pointing to this inconsistency, Wilson moved for a continuance to conduct additional discovery. After Edward Don filed an amended affidavit *20 correcting the error, the trial court denied Wilson's motion and granted summary judgment to Edward Don for $57,322.45 plus interest and attorney fees. Wilson contends on appeal that the trial court erred when it granted Edward Don summary judgment and when it denied Wilson's motion for a continuance.[1]
1. Wilson first contends that he is not responsible for the Greenville Shrage account. We disagree.
Here, the first page of the credit application names the firm entering into the contract as "Greenville Shrage Co. & Investments... (DBA) King Franchise, Inc." Wilson signed this part of the contract as well as the guaranty. Wilson's verified answer identified him "[i]ndividually and d/b/a GREENVILLE SHRAGE COMPANY & INVEST. d/b/a KING FRANCHISE, INC." Thus the contract sufficiently identifies Wilson as the debtor and is enforceable against him. See Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga.App. 481, 482-483(1), 445 S.E.2d 297 (1994) (summary judgment properly granted to creditor where debtor claimed that he had not seen guaranty page of contract until after he had signed addendum to guaranty).
2. Wilson next contends that a material issue of fact remains concerning the extent of his indebtedness. We disagree.
The tender of an authenticated invoice, along with testimony that the invoice remains unpaid, is prima facie evidence of a suit on account. Imex Intl. v. Wires Engineering, 261 Ga.App. 329, 332(1)(a), 583 S.E.2d 117 (2003). Here, although the text of Trotter's original affidavit stated the amount due incorrectly, that amount appeared on the face of the attached account statement, and was authenticated and confirmed by Trotter's amended affidavit. Although Wilson's affidavit asserted that "to the best of [his] knowledge[,]" the debt had been paid by a third party, Wilson did not provide any evidence that Edward Don had in fact been paid. Thus he cannot show that a genuine issue of fact remains concerning the extent of his indebtedness. See Jay Gleason Advertising Svc. v. Gleason, 193 Ga.App. 445(2), 388 S.E.2d 43 (1989) ("Generalized arguments amounting to mere conclusions have no probative value to pierce the facts presented by the movant for summary judgment.") (citation omitted).
3. Finally, Wilson argues that the trial court abused its discretion when it denied his motion for a continuance to conduct further discovery. Again, we disagree.
OCGA § 9-11-56(f) provides:
Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.
A party moving for a continuance under this subsection "must set forth the reasons for a continuance and show that if the continuance were granted, what relevant and material evidence would be produced in opposition to the motion for summary judgment." (Citation omitted.) Gilco Investments v. Stafford Cordele, LLC, 267 Ga.App. 167, 169(1), 598 S.E.2d 889 (2004).
Here, Wilson's affidavit failed to specify any information that he could possibly obtain to dispute the debt owed to Edward Don. Thus the trial court did not abuse its discretion when it denied his motion for a continuance. Gilco Investments, 267 Ga.App. at 169-170(1), 598 S.E.2d 889 (where documents setting out debt were unambiguous, trial court did not abuse discretion in denying defendant's motion for continuance supported only by affidavit avowing need for further discovery from witnesses).
Judgment affirmed.
BLACKBURN, P.J., and BERNES, J., concur.
NOTES
[1] Edward Don's motion for penalties and damages against Wilson for filing a frivolous appeal is hereby denied.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS JAMES QUEEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:93-cr-00366-WMN)
Submitted: May 11, 2007 Decided: July 10, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nicholas James Queen, Appellant Pro Se. Christine Manuelian,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas James Queen seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motions. In the first
motion, Queen sought relief from an underlying criminal judgment.
In the second motion, Queen complained that the district court had
treated a postconviction motion that Queen brought pursuant to 28
U.S.C. § 2255 as having been brought pursuant to 28 U.S.C. § 2254.
In both Rule 60(b) motions, Queen directly attacked his conviction.
Therefore, under United States v. Winestock, 340 F.3d 200, 206 (4th
Cir. 2003), the district court was without jurisdiction to consider
the Rule 60(b) motions, which were, in essence, successive and
unauthorized § 2255 motions.
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369
(4th Cir. 2004). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
- 2 -
independently reviewed the record and conclude that Queen has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Queen’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. Winestock, 340 F.3d at 208. In
order to obtain authorization to file a successive § 2255 motion,
a prisoner must assert claims based on either: (1) a new rule of
constitutional law, previously unavailable, made retroactive by the
Supreme Court to cases on collateral review; or (2) newly
discovered evidence, not previously discoverable by due diligence,
that would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable
factfinder would have found the movant guilty of the offense. 28
U.S.C. §§ 2244(b)(2), 2255 (2000). Queen’s claims do not satisfy
either of these criteria. Therefore, we deny authorization to file
a successive § 2255 motion.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 3 -
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50467
Summary Calendar
JOSE LOPEZ QUINTERO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-250-OG
--------------------
November 28, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Lopez Quintero, federal prisoner # 42177-080, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition.
Quintero argues that because this court previously denied him
permission to file a successive 28 U.S.C. § 2255 motion, another
motion under that section would be “inadequate or ineffective” to
test the legality of his detention.
We find that this court lacks jurisdiction to consider
Quintero’s appeal because the district court lacked jurisdiction
to consider his petition. A 28 U.S.C. § 2241 petition must be
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50467
-2-
filed in the district wherein the petitioner is incarcerated; any
other district lacks jurisdiction to entertain the petition. See
Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001). Quintero’s
petition was filed in the Western District of Texas, but he was
incarcerated at a facility in the Eastern District of Texas.
Therefore, we DISMISS Quintero’s appeal for lack of
jurisdiction and DENY permission to proceed IFP. Quintero is
also WARNED that the submission of further frivolous pleadings,
to this or any other court subject to this court’s jurisdiction,
may subject him to sanctions.
|
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77 F.3d 502
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Timothy N. HUNTER, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 96-3004.
United States Court of Appeals, Federal Circuit.
Jan. 19, 1996.
ORDER
1
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
2
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
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486 F.3d 753
Jeffrey STEIN, Mark Watson, Philip Wiesner, Randall Bickham, Larry DeLap, Jeffrey Eischeid, David Greenberg, Steven Gremminger, Carl Hasting, John Lanning, John Larson, Robert Pfaff, Gregg Ritchie, Richard Rosenthal, Richard Smith, and Carol G. Warley, Plaintiffs-Appellees,v.KPMG, LLP, Defendant-Appellant.Docket No. 06-4358-cv.
United States Court of Appeals, Second Circuit.
Argued: November 21, 2006.
Decided: May 23, 2007.
Sheila L. Birnbaum, Skadden, Arps, Meagher & Flom LLP, New York, New York (Barbara Wrubel, J. Russell Jackson, Preeta D. Bansal, Haydan A. Coleman, Skadden, Arps, Meagher & Flom LLP, New York, NY, Amy Sabrin, Skadden, Arps, Meagher & Flom LLP, Washington D.C., Charles A. Stillman, Stillman, Friedman & Shechtman, P.C., New York, NY, on the brief), for Defendant Appellant.
David Spears, Spears & Imes LLP, New York, NY, for Plaintiffs-Appellees Jeffrey Stein and John Lanning.
Ronald E. DePetris, DePetris & Bachrach, LLP, New York, N.Y. (Marion Bachrach, on the brief), for Plaintiff-Appellee Richard Smith.
John A. Townsend, Townsend & Jones, LLP, Houston, TX, on the brief, for Plaintiff-Appellee Carol G. Warley.
David C. Scheper, Overland Borenstein Scheper & Kim LLP, Los Angeles, California, on the brief, for Plaintiff-Appellee Robert Pfaff.
John F. Kaley, Doar Rieck Kaley & Mack, New York, NY, on the brief, for Plaintiff-Appellee Steven Gremminger.
David C. Smith, McNamara Spira & Smith, Los Angeles, CA, on the brief, for Plaintiff-Appellee Gregg Ritchie.
Leonard F. Lesser, Simon Lesser P.C., New York, NY, on the brief, for Plaintiff-Appellee David Greenberg.
Diana D. Parker, Law Offices of Diana D. Parker, New York, NY, on the brief, for Plaintiff-Appellee Larry DeLap.
Michael S. Kim, Kobre & Kim LLP, New York, New York, on the brief, for Plaintiff-Appellee Mark Watson.
Marc A. Fenster, Russ, August & Kabat, Los Angeles, CA, on the brief, for Plaintiff-Appellee Randall Bickham.
Stanley S. Arkin, Arkin Kaplan Rice LLP, New York, NY, on the brief, for Plaintiff-Appellee Jeffrey Eischeid.
Robert S. Fink, Kostelanetz & Fink, LLP, New York, NY, on the brief, for Plaintiff-Appellee Richard Smith.
Stephen Willey, Savitt & Bruce LLP, Seattle, WA, on the brief, for Plaintiff-Appellee John Larson.
Susan R. Necheles, Hafetz & Necheles, New York, NY, on the brief, for Plaintiff-Appellee Richard Rosenthal.
Russell M. Gioiella, Litman, Asche & Gioiella, New York, NY, on the brief, for Plaintiff-Appellee Carl Hasting.
Before: WINTER, HALL, Circuit Judges, and GLEESON,* District Judge.
WINTER, Circuit Judge.
1
This appeal is an offspring of a criminal tax fraud prosecution. In the course of the criminal prosecution, Judge Kaplan asserted ancillary jurisdiction over a state law contract claim brought against KPMG, LLP, by sixteen of the defendants in the criminal case, all former partners and employees of KPMG, seeking to force it to pay their legal expenses. KPMG appeals from the decision allowing the ancillary proceeding and from the denial of its motion to compel arbitration of the contract claim. Construing KPMG's appeal as a petition for writ of mandamus, we grant the petition. We vacate the order of the district court asserting ancillary jurisdiction over the contract claim as beyond the district court's power. The issues regarding KPMG's motion to compel arbitration are therefore moot.
BACKGROUND
2
The full history of the proceedings underlying this appeal is reported in United States v. Stein, 435 F.Supp.2d 330 (S.D.N.Y.2006) (Stein I); United States v. Stein (Stein v. KPMG LLP), 452 F.Supp.2d 230 (S.D.N.Y.2006) (Stein II). Familiarity with these opinions is assumed, and we recount here only those facts pertinent to the disposition of the present appeal.
3
The underlying criminal prosecution is said to be the largest criminal tax case in American history. Stein II, 452 F.Supp.2d at 237. Nineteen defendants are charged with conspiracy and tax evasion, including the appellees, who are former partners or employees of the accounting firm KPMG. Id. The defendants are alleged to have, inter alia, devised, marketed, and implemented fraudulent tax shelters that caused a tax loss to the United States Treasury of more than $2 billion. In connection with the alleged tax shelters, KPMG entered into a deferred prosecution agreement with the government, agreeing to cooperate fully with the government and to pay $456 million in fines and penalties. Stein I, 435 F.Supp.2d at 349-50. If KPMG performs its obligations under the agreement, it will escape prosecution. Id.
4
The particular dispute giving rise to this appeal concerns policies adopted by the Department of Justice in response to highly visible public concerns over the compliance by business firms with federal and state law. See Leonard Orland, The Transformation of Corporate Criminal Law, 1 Brook. J. Corp. Fin. & Com. L. 45 (2006). The policies were established in the so-called "Thompson Memorandum," which set out standards to be followed by federal prosecutors in determining whether to bring criminal prosecutions against firms as well as their agents.1 See Mem. from Larry D. Thompson, Deputy Attorney General, U.S. Dep't. Of Justice, to Heads of Department Components, United States Attorneys, re: Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) ("Thompson Mem."), http:// www.usdoj.gov/dag/cftf/business—or ganizations.pdf. One such standard deemed a firm's voluntary payment of wrongdoing agents' legal expenses a factor favoring prosecution of the firm. Id. at 7-8.
5
During the course of the investigation, and prior to the indictments in this matter, KPMG negotiated with and paid the legal fees of some, but not all, of the appellees. Upon indictment, however, KPMG stopped these payments. Stein I, 435 F.Supp.2d at 350. In Stein I, the district court found that the government had used the threat of prosecution to pressure KPMG into cutting off payment of the appellees' legal fees and thereby violated appellees' Fifth and Sixth Amendment rights to a fair trial and the effective assistance of counsel. Id. at 382. The merits of that ruling are not before us on this appeal.
6
The district court suggested that the constitutional violation could be rendered harmless if the appellees could successfully force KPMG to re-commence—or, for some of the appellees, commence—paying their legal expenses. Id. at 373, 376-78. The court sua sponte instructed the clerk of the district court to open a civil docket number for an expected contract claim by the appellees against KPMG for advancement of their defense costs. Id. at 382. The district court stated that it would "entertain the claims pursuant to its ancillary jurisdiction over this case." Id.
7
The district court acknowledged a more obvious remedy for the constitutional violations it had found—dismissal of the indictment—and explicitly left that possibility open as an incentive for the government to strongarm KPMG to advance appellees' defense costs. Id. at 380. In short, having found that the government violated appellees' constitutional rights by threatening to bring one indictment, the district court sought to remedy the violation by threatening to dismiss another.
8
Following this invitation, the appellees filed the anticipated complaints against KPMG. In the complaints, fifteen of the sixteen appellees relied primarily on an "implied-in-fact" contract with KPMG based on KPMG's alleged history of paying its employees' legal expenses. The sixteenth appellee, Jeffrey Stein, relied on an express breach of his written separation agreement with KPMG. In response, KPMG moved to dismiss for lack of subject matter jurisdiction and on the merits. It also argued that the case should be referred to arbitration under arbitration agreements between KPMG and the various appellees. The district court denied KPMG's motions in Stein II, 452 F.Supp.2d 230.
9
The Stein II opinion contained three principal holdings: (i) a reaffirmation of the court's earlier holding that ancillary jurisdiction existed over the contractual fee dispute between appellees and KPMG; (ii) a rejection of KPMG's argument that the "implied-in-fact" contract claims of all of the appellees, save Stein, were foreclosed by written agreements containing merger clauses; and (iii) a finding that enforcement of any applicable arbitration clause would be against public policy. The court concluded that arbitration might interfere with the district court's ability to ensure a speedy trial, could lead to a dismissal of possibly meritorious criminal charges, would endanger the appellees' rights to a fair trial, and would risk imposing unnecessary costs on taxpayers if the appellees should become indigent. Id. at 238-39.
10
The opinion closed by setting the trial of appellees' advancement claim for six weeks later, October 17, 2006, following an abbreviated period of limited discovery. Id. at 275. The procedural rules governing the trial were left to the future, the district court noting that "[i]t is not now entirely clear exactly how this will play out." Id. at 274. Although the district court stated that KPMG would have "the protections inherent in the Federal Rules of Civil Procedure," Id. at 275, the court elsewhere stated that the advancement claim, although civil in nature, "is a criminal case to which the Civil Rules do not apply," Id. at 260. It further expressed its intention to apply the Civil Rules only "to the extent they are consistent with the Criminal Rules." Id. at 269.
11
On appeal, KPMG argues that the district court lacks subject matter jurisdiction over appellees' advancement claims and also that, if jurisdiction exists, the district court further erred by refusing to compel arbitration.
DISCUSSION
12
a) Appeal or Mandamus
13
Appellees argue that we have no appellate jurisdiction to review the district court's assertion of ancillary jurisdiction because the denial of KPMG's motion to dismiss appellees' advancement complaint was an unappealable interlocutory order in a criminal case. KPMG responds that we have jurisdiction under the Federal Arbitration Act (the "FAA") to review the district court's refusal to compel arbitration, and that we may then exercise pendent jurisdiction over the question of ancillary jurisdiction.
14
These arguments in turn spawn a tangle of counter- and counter-counter-arguments. Section 16 of the FAA provides for interlocutory appeal from a refusal to stay an action under Section 3 of the FAA, or of a refusal to compel arbitration under Section 4. 9 U.S.C. § 16(a)(1). KPMG, however, did not ask for a stay under Section 3 anywhere in its notice of motion to dismiss, and Section 4 applies only to orders by "any United States district court which, save for [the arbitration] agreement, would have jurisdiction under Title 28. . . ." 9 U.S.C. § 4. However, the district court does not have jurisdiction over the advancement claim under Title 28. Moreover, even if KPMG is deemed to have constructively petitioned for a stay under Section 3, an exercise of pendent jurisdiction would require us to find that the issue of ancillary jurisdiction is "`inextricably intertwined' with an issue over which the court properly has appellate jurisdiction," as where "the same specific question underl[ies] both the appealable order and the non-appealable order, or where resolution of the non-appealable order [is] subsidiary to resolution of the appealable order." Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 576 (2d Cir.2005) (citations omitted).
15
To undertake pendent jurisdiction, therefore, we would have to find that the issue of ancillary jurisdiction is inextricably intertwined with the denial of the motion to compel arbitration, presumably on the grounds that the district court's reasons for asserting ancillary jurisdiction and for finding that arbitration would be against public policy were the same, i.e., the need to afford an adequate and timely remedy for the constitutional violations. See Stein I at 377 (ancillary proceeding needed "[i]n order to guarantee [appellees'] right to choose their own counsel . . ."); Stein II at 245 (having found the constitutional violations, "the overreaching issue is what to do about it"), and 254 (need to promptly vindicate appellees' Fifth and Sixth Amendment rights are factors rendering arbitration clauses contrary to public policy).
16
We decline to resolve the question of appellate jurisdiction. We suggested at oral argument that it might be more appropriate to exercise our mandamus power. The parties were invited to file supplemental briefs on the issue, and Judge Kaplan himself filed a submission on the issue.
17
We have in the past treated an appeal as a petition for leave to file a writ of mandamus. In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993); In re Hooker Investments, Inc., 937 F.2d 833, 837 (2d Cir.1991). However, we have generally done so only after finding a lack of appellate jurisdiction. Repetitive Stress Injury Litigation, 11 F.3d at 373; Hooker Investments, 937 F.2d at 837. There has been criticism of the practice of resorting to mandamus without first resolving the issue of appellate jurisdiction, ACF Indus., Inc. v. EEOC, 439 U.S. 1081, 1085, 99 S.Ct. 865, 59 L.Ed.2d 52 (1979) (Powell, J., dissenting from denial of certiorari), but there is nevertheless precedent for doing so, see, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990); Guam v. United States Dist. Court of Guam, 641 F.2d 816 (9th Cir.1981); Wilk v. Am. Medical Assn., 635 F.2d 1295, 1298 (7th Cir.1980); see also 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris.2d § 3932.1. While the practice of resorting to mandamus only in the absence of jurisdiction may be of value in alerting courts to the danger of allowing mandamus to become a substitute for an appeal and thus to swallow the rule against interlocutory appeals, ACF Indus., 439 U.S. at 1085, 99 S.Ct. 865, the circumstances here fully justify the exercise of mandamus power without deciding whether we have appellate jurisdiction.
18
In turning to mandamus, we simply recognize that "[t]he traditional use of the writ in the aid of appellate jurisdiction both [at] common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction . . . ." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). Because the actions of the district court were well outside its subject matter jurisdiction, our resort to mandamus does not in any way expand the potential use of that writ and avoids our unnecessarily addressing complex jurisdictional issues.
19
The jurisdictional issues are complex, but largely because, as we explain below, the proceeding challenged on this appeal— a state law contract action against a non-party within a federal criminal proceeding—is well outside the subject matter jurisdiction conferred by Congress on the federal courts. It is hardly surprising, therefore, that there is no statute or body of caselaw that clearly affords or clearly precludes appellate review of the commencement of such a proceeding. For example, the failure of Congress to mention Title 18 as well as Title 28 in Section 4 of the FAA is not evidence of an intent to preclude interlocutory appeals from orders refusing to compel arbitration in criminal cases. Rather, it is evidence that Congress did not expect such issues ever to arise in criminal cases. Indeed, the complexities surrounding our appellate jurisdiction underline the paucity of grounds supporting the district court's assertion of ancillary jurisdiction.
20
Were we to opine on the various arguments over appellate jurisdiction, we would have to address issues involving the FAA and pendent jurisdiction that arise only because of the happenstances of this unique case. There is no need for a precedent regarding appellate jurisdiction in this context because our issuance of the writ disposes of this matter and renders the existence of future such cases unlikely. However, opining on the jurisdictional issues does risk the making of statements that might be misleading in future cases in a different context. We therefore turn to the mandamus remedy without deciding the jurisdictional issues.
21
b) The Merits
22
As discussed above, mandamus is available to confine courts to their designated jurisdiction. Other "touchstones" of mandamus review are "usurpation of power, clear abuse of discretion and the presence of an issue of first impression." Steele v. L.F. Rothschild & Co., Inc., 864 F.2d 1, 4 (2d Cir.1988) (internal quotation marks omitted). Three conditions must be satisfied before the writ may issue: first, the party seeking relief must have "no other adequate means to attain the relief he desires," second, the petitioner must show that his right to the writ is "clear and indisputable," and third, the issuing court must be satisfied that the writ is appropriate under the circumstances. Cheney v. United States Dist. Court, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks and citations omitted). The writ is, of course, to be used sparingly. In addition to avoiding its use as a substitute for an appeal, discussed above, "the principal reasons for our reluctance to condone use of the writ [are] the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appellate litigation." Mallard v. United States Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). In the present matter, all of the standard requirements for granting mandamus relief are met, while the reasons underlying the traditional reluctance to resort to the writ are either not present or favor granting the writ.
23
Appellees argue that KPMG's right to relief is not "clear and indisputable" because the proper scope of ancillary jurisdiction is not well-settled by our caselaw. To be sure, "[t]he boundaries of ancillary jurisdiction are not easily defined and the cases addressing it are hardly a model of clarity." Garcia v. Teitler, 443 F.3d 202, 208 (2d Cir.2006). However, because ancillary jurisdiction cannot be limitless and still be ancillary, boundaries there must be, and the exercise of ancillary jurisdiction here is clearly outside those boundaries.
24
As Garcia stated, "ancillary jurisdiction is aimed at enabling a court to administer justice within the scope of its jurisdiction." Id. (internal quotation marks omitted). Ancillary jurisdiction is intended "to permit disposition of claims that are, in varying respects and degrees, factually interdependent by a single court, and . . . to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees." Id. (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
25
The most common exercise of ancillary jurisdiction is, probably, to resolve fee disputes between a party and its attorney arising in litigation in which the attorney represented the party. See, e.g., Cluett, Peabody & Co., Inc. v. CPC Acquisition Co., Inc., 863 F.2d 251 (2d Cir.1988); Novinger v. E.I. DuPont de Nemours & Co., Inc., 809 F.2d 212 (3d Cir.1987). In Garcia, for example, we upheld the exercise of ancillary jurisdiction to compel an attorney to return a retainer obtained to represent a party in the underlying litigation after the district court had ordered the attorney to withdraw as counsel because of misconduct. Garcia, 443 F.3d at 208, 211-12. Exercise of ancillary jurisdiction over a fee dispute between a party and an attorney functioning as an officer of the court in litigation over which a court has jurisdiction is, however, a world away from the exercise of ancillary jurisdiction in a criminal proceeding to adjudicate a contract dispute between the defendants and a non-party former employer.
26
When a court undertakes to resolve claims arising from a relationship between a party to an action and the party's attorney in that action and involving the attorney's conduct of that litigation, the parties to the ancillary proceeding are already before the court as a litigant and officer of the court; the relevant facts are generally more accessible to that court than to another; and the ability of the court to conduct and dispose of the underlying litigation may turn on, or at least be greatly facilitated by, resolution of the issues raised in the ancillary proceeding. However, when a non-party to the primary proceeding is sought to be joined as a defendant in the ancillary proceeding, the need for the ancillary proceeding and the efficiencies provided by it must be both sufficiently great to outweigh the prejudice to the non-party and to be consistent with the limited jurisdiction of federal courts.
27
An ancillary proceeding may subject the non-party to what may be a different forum and different procedural or even substantive rules than would normally be involved in disposing of the claim at issue. In addition, the assertion of ancillary jurisdiction over matters that are otherwise outside the jurisdiction conferred by the Constitution and the Congress can be justified only by compelling needs arising in the exercise of the jurisdiction that is conferred. While we do not exclude the possibility of a legitimate ancillary proceeding involving a non-party to the primary litigation, we believe that the requisite compelling circumstances will be rare, as the need for such a proceeding generally will be far less pressing than in cases involving parties already before the court.2
28
In the present matter, the prejudice to KPMG is clear, and the need for the ancillary proceeding is entirely speculative. The claims to be resolved in the ancillary proceeding sound in contract, i.e. appellees claim that KPMG impliedly—in one case expressly—promised to pay their expenses in defending the present criminal charges. The prejudice to KPMG in having these claims resolved in a proceeding ancillary to a criminal prosecution in the Southern District of New York is clear. At stake are garden variety state law claims, albeit for large sums. KPMG believed that contractual disputes between it and the appellees would be resolved by arbitration. Instead, KPMG is faced with a federal trial of more than a dozen individuals' multi-million dollar "implied-in-fact" contract claims. Moreover, because such a proceeding is governed by no express statutory authority, the district court has indicated its intention to apply to this expedited undertaking an ad hoc mix of the criminal and civil rules of procedure determined on the fly, as it were. See Stein II, 452 F.Supp.2d at 274-75. The resolution of the contract claims against KPMG is thus to occur in an entirely sui generis proceeding even though it may require the scrutinizing of decades of KPMG's conduct, determining the states of mind of dozens of individuals, applying the findings from those inquiries to the particular circumstances of each appellee, and resolving multiple questions of the law of several states. Waiting to appeal from a final judgment in this sort of proceeding can hardly be described as an "adequate means" of relief eliminating the need for mandamus. See Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (internal quotation marks omitted). This is especially the case where, as here, KPMG may have a contractual right to resolve these questions through arbitration and avoid such a proceeding altogether, as the FAA's provision for interlocutory appeals from refusals to stay an action or compel arbitration was intended precisely to avoid such outcomes.
29
The need for the particular ancillary proceeding is also far less pressing than contemplated by the district court. First, the interrelationship of the factual issues underlying the finding of constitutional violations and the asserted contract claims is marginal. The Fifth and Sixth Amendment violations were found to be the government's implementation of the policy stated in the Thompson Memorandum with regard to decisions to indict or not indict firms. Stein I, 435 F.Supp.2d at 367. One aspect of that policy was to take into account whether the firm was voluntarily paying the legal expenses of members or employees who had been indicted, see Thompson Mem. at 7-8, a factor deemed to favor indictment under the Thompson Memorandum. Id. That document gave no such weight to payments required by contract. As a result, the constitutional issues before the district court went solely to what pressure the government put on KPMG not to pay fees voluntarily and to what KPMG's response was. See Stein I, 435 F.Supp.2d at 366, 343-49. A trial of claims to expenses based on contract— especially implied contract—will go over very different factual ground.
30
Second, while the ancillary proceeding is a major undertaking, its contribution to the efficient conclusion of the criminal proceeding is entirely speculative. Even if the holding that the government violated the Fifth and Sixth Amendments is correct—an issue on which we express no opinion—the ancillary proceeding will provide a "remedy" only if KPMG loses, hardly a foregone conclusion on the present record.3 But even if there are constitutional violations and even if KPMG was contractually obligated to pay appellees' expenses, the ancillary proceeding is not an indispensable remedy and may not even constitute a full remedy. Dismissal of an indictment for Fifth and Sixth Amendment violations is always an available remedy. Moreover, if it violates the Fifth and Sixth Amendments for the government to coerce an employer to decline to pay expenses on a voluntary basis, it may well be a similar violation to coerce the employer to breach a contract to pay such expenses, thereby compelling the employees to pay the substantial costs of enforcing the contract in a civil action. Either way, the government has used coercion to raise the costs of the defendants to obtain counsel of their own choosing. The ancillary proceeding may not, therefore, render any constitutional violation harmless.
31
Third, even if there were constitutional violations and even if KMPG is contractually obligated to advance appellees' attorneys' fees and costs, creating an ancillary proceeding to enforce that obligation was not the proper remedy. If the government's coercion of KMPG to withhold the advancement of fees to its employees' counsel constitutes a substantive due process violation, or has deprived appellees of their qualified right to counsel of choice, more direct (and far less cumbersome) remedies are available. Assuming the cognizability of a substantive due process claim and its merit here, dismissal of the indictment is the proper remedy. As for the Sixth Amendment deprivation, if it turns out that the government's conduct separates appellees from their counsel of choice (an event that has not yet occurred), appellees may seek relief on appeal if they are convicted. We do not mean to exclude the possibility of other forms of relief. If, for example, a Sixth Amendment violation is the result of ongoing government conduct, the district court of course may order the cessation of such conduct. Having said that, we hold, however, that the remedies available to the district court in the circumstances presented here did not include its novel exercise of ancillary jurisdiction. The "summary advancement proceeding," Id. at 381, it created may have been intended only as a vehicle for the government and KPMG to act on their "incentives" to somehow get appellees' counsel funded and thereby "avoid any risk of dismissal of [the indictment of the appellees] or other unpalatable relief." Stein I at 380. Or, as Stein II suggests, it might also have been envisioned as an uncharted hybrid legal proceeding for the expeditious resolution of numerous high-dollar and potentially complex contract claims. Either way, it was not an available remedy for either constitutional violation.
32
Finally, on the present record, a proceeding ancillary to a criminal prosecution was not necessary either to avoid perceived deficiencies in ordinary civil contract actions to enforce the alleged advancement contracts or to remove some barrier to the appellees' bringing of such actions. The fee issue has been known since the criminal investigation began and, unlike the situation in Weissman, see Note 2 supra, did not suddenly arise at an awkward period in the case. Many of the appellees were in negotiation with KPMG during the investigation period. Some sixteen months before the indictment, most of the appellees signed a letter that clearly indicated their knowledge of KPMG's intent not to pay post-indictment fees and could—arguably must—be read as a waiver of any right to such fees. Stein II, 452 F.Supp.2d at 240-41. Nevertheless, appellees took none of the available steps to enforce their alleged contracts with KPMG until well after the indictment when the district court raised the possibility of an ancillary proceeding and indicated its willingness to exercise jurisdiction over it.
33
The traditional factors weighing against mandamus—the undesirability of casting a judge as a litigant and the desirability of avoiding piecemeal appeals—also weigh in favor of mandamus in this case. The district judge is not a party, and, by granting the writ, we avoid an unnecessary, potentially costly, and time-consuming procedure that would certainly be vacated on appeal. The district court has acknowledged that the proceedings before him "would be facilitated by prompt review of the merits of the challenged order." The same considerations—the magnitude and importance of the ongoing criminal proceedings—also argue for swift review to avoid further delay of the underlying criminal proceedings. For all of the foregoing reasons, the three requirements of Cheney v. United States Dist. Court, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004), are met here.
CONCLUSION
34
We treat the appeal as a petition for writ of mandamus. We grant the petition, vacate the orders below to the extent that they find jurisdiction over the complaint against KPMG and dismiss appellees' complaint against KPMG.
Notes:
*
The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation
1
The Thompson Memorandum has been superseded by the "McNulty Memorandum."See Mem. From Paul J. McNulty, Deputy Attorney General, U.S. Dep't of Justice, to Heads of Department Components, United States Attorneys, re: Principles of Federal Prosecution of Business Organizations, http:// www.usdoj.gov/dag/speech/2006/mcnulty memo.pdf.
2
InUnited States v. Weissman, 1997 WL 334966 (S.D.N.Y. June 16, 1997), a district court asserted ancillary jurisdiction over a dispute concerning the advancement of legal fees by a former employer to a criminal defendant. In Weissman, a former Empire Blue Cross/Blue Shield executive had his defense costs advanced pursuant to a corporate by-law stipulating that the company would cover all legal costs unless "a judgment or other final adjudication" established that the officer had acted in bad faith or used deliberate dishonesty. Id. at *1. After the jury convicted the former executive, but prior to sentencing, the company stopped paying legal expenses. Id. at *2. The executive, however, argued that he was entitled to coverage of expenses through post-conviction motions and sentencing. Id. at *11. The question addressed in the ancillary proceeding was the legal question of "whether a jury's guilty verdict constitutes a `final adjudication.'" Id. The court acknowledged that it could find no other example of a court in a criminal case exercising ancillary jurisdiction over an employer in an advancement case. Id. at *5. The Weissman court further noted that the "argument that complex questions of state law are implicated" in the dispute was the "most powerful challenge" to the court's ancillary jurisdiction. Id. at *8. We need intimate no view on the merits of Weissman because it is somewhat different from the present matter. On the one hand, in Weissman, the issue of the employer refusing to advance expenses arose at a time when no disposition of the issue could be reasonably obtained in another forum. On the other hand, there was no perceived Sixth Amendment violation by the government in need of a remedy.
3
That KPMG should lose on the merits is far from certain. KPMG's alleged "uniform practice,"Stein I, 435 F.Supp.2d at 356, of paying the legal fees for indicted employees and partners—seemingly an indispensable element of an "implied-in-fact" contract—appears to consist of a single instance in which KPMG paid the legal fees of two partners indicted and convicted in a 1974 criminal case, Id. at 340. In addition, as a condition of having their pre-indictment legal fees paid by KPMG, most of the appellees signed fee letters acknowledging that KPMG would not pay post-indictment fees and—on the most straight-forward reading—waiving any right to such fees. Stein II, 452 F.Supp.2d at 240-41. What is more, when the appellees moved to dismiss the indictment on Sixth Amendment grounds, they took the position that the payment of legal fees was a matter of KPMG's freedom of choice, stipulating with the government that "it had been the longstanding voluntary practice of KPMG to advance and pay legal fees. . . ." Stein I, 435 F.Supp.2d at 340 (emphasis added). Arguably, the appellees would be estopped from now arguing that KPMG had a contractual obligation— implied or otherwise—to pay post-indictment legal fees. Finally, we note that some of the district court's "public policy" reasons for refusing to compel arbitration—i.e., that arbitration would interfere with the appellees' rights to counsel of their choice and risk the need for the government to provide counsel to indigent defendants—seem to assume that KPMG would win any arbitration proceeding.
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33 Ill. App.2d 22 (1961)
178 N.E.2d 881
Book Production Industries, Inc. (Consolidated Book Publishers Division), a Corporation, Plaintiff-Appellant,
v.
Blue Star Auto Stores, Inc., a Corporation, Defendant-Appellee.
Gen. No. 11,509.
Illinois Appellate Court Second District, Second Division.
December 19, 1961.
*23 *24 Matthews, Jordan, Dean & Suhler, of Aurora, and Campbell, Clithero & Fischer, of Chicago, for appellant.
Alschuler, Putnam & McWethy, of Aurora, and Arvey, Hodes & Mantynband, of Chicago, for appellee.
CROW, J.
The complaint in this case alleges that the plaintiff, Book Production Industries, Inc., as lessee, leased a building owned by the defendant Blue Star Auto Stores, Inc., for a term of five years, commencing *25 May 1, 1955, by written lease with rider attached, to be used for the warehousing of books and printed matter; that the plaintiff lessee agreed to pay and has paid certain total rent; that a copy of the lease and rider are attached as Exhibit A and made a part of the complaint; that the plaintiff lessee took possession pursuant to the lease; that paragraph 22 of the rider to the lease provided that the defendant lessor keep and maintain the inside downspouts in good order and repair during the term of the lease; that the defendant lessor failed to maintain and repair the inside downspouts and as a proximate result thereof a section thereof on the third floor became rusted and weakened; that on or about April 26, 1959, that section of the inside downspout broke off, causing rainwater to run onto that third floor and thence to the floors below ruining large quantities of the plaintiff's printed matter which the plaintiff lessee had stored on the ground floor, resulting in damages of $4,000; that on April 27, 1959, the plaintiff notified the defendant that water had leaked through the ceiling of the ground floor from an unknown source, damaging its property, and the defendant failed to repair the defective downspout; that on June 25 and 26, 1959, it rained again, the plaintiff suffered additional similar water damage from rainwater pouring from the defective downspout onto the third floor and thence to the ground floor, the defendant was notified again of that water damage, and the defective downspout was not repaired; that on June 30 and July 1, 1959, it again rained, water leaked through the building, and the plaintiff sustained further similar water damage to the printed matter that it had stored; that on July 1, 1959, the plaintiff's employees located the trouble, which was a broken inside downspout, which information was communicated to the defendant, and the defendant then made repairs to the downspout; that damage *26 to the plaintiff from the water leakage of June 25, 26, 30, and July 1, was $5200; that on July 23, 1959 additional property of the plaintiff was damaged by rainwater from another defective inside downspout on the first floor, to the extent of $1035; that in consequence of defendant's failure to perform all its obligations under the lease the plaintiff has been damaged $10,235; which the defendant refuses to pay; and the plaintiff prays for a money judgment of $10,235 and demanded a jury trial.
The copy of the printed lease attached to the complaint as Exhibit A provides, so far as pertinent:
"4. CERTAIN RIGHTS RESERVED TO LESSOR: Lessor reserves the following rights:
...
(d) To enter the premises at all reasonable hours for inspections, repairs, alterations or additions to the premises or the Building, ... and for any purpose whatsoever related to the safety, protection, preservation or improvement of the premises or the Building, or Lessor's interests...."
"6. WAIVER OF CERTAIN CLAIMS: Lessor shall not be liable, and Lessee waives all claims, for damage to person or property sustained by Lessee or any occupant of the Building or premises resulting from the Building or any part of it or any equipment or appurtenance becoming out of repair, or resulting from any accident in or about the Building, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Building or of any other person. This Section 6 shall apply especially, but not exclusively, to damage caused by water, snow, frost, steam, excessive heat or cold, sewage, gas, odors or noise or the bursting or *27 leaking of pipes or plumbing fixtures, and shall apply equally whether any such damage results from the act or neglect of other tenants, occupants or servants of the Building or of any other person, and whether such damage be caused or result from any thing or circumstance above mentioned or referred to, or any other thing or circumstance whether of a like nature or of a wholly different nature. If any such damage results from any act or neglect of Lessee, Lessor may, at Lessor's option, repair such damage, whether caused to the Building or to tenants thereof, and Lessee shall thereupon pay to Lessor the total cost of such repairs and damages both to the building and to the tenants thereof. All personal property belonging to Lessee or any occupant of the premises that is in the Building or the premises shall be there at the risk of Lessee or such other person only, and Lessor shall not be liable for any damage thereto or the theft or misappropriation thereof."
"21. MISCELLANEOUS: ...
(i) ... all riders attached to this lease and signed by Lessor and Lessee are hereby made a part of this lease as though inserted in this section 21."
"A rider consisting of three pages containing sections 22 to 34, inclusive, is hereto attached and made a part hereof."
The copy of the three page typewritten rider entitled "Rider attached to and made part of Lease dated ... etc.," which is a part of Exhibit A attached to the complaint, provides, so far as pertinent:
"22. Lessor shall at its own cost and expense keep and maintain the exterior of the demised *28 premises, including roof, skylights, fire-escape, sewers and inside down spouts in good order and repair during the term of this lease."
"27. Lessee covenants and agrees that it will protect and save and keep the Lessor forever harmless and indemnified against and from any penalty or damage or charges imposed for any violation of any laws or ordinances, whether occasioned by the neglect of Lessee or those holding under Lessee, and that Lessee will at all times protect, indemnify and save and keep harmless the Lessor against and from any and all loss, cost, damage or expense, arising out of or from any accident or other occurrence on or about said premises, causing injury to any person or property whomsoever or whatsoever and will protect, indemnify and save and keep harmless the Lessor against and from any and all claims and against and from any and all loss, cost, damage or expense arising out of any failure of Lessee in any respect to comply with and perform all the requirements and provisions hereof."
The foregoing provisions of the printed lease and accompanying typewritten rider include the only provisions urged by either party here as having a bearing on the present case.
The defendant lessor filed a motion to dismiss alleging that (1) the complaint fails to state a cause of action; (2) paragraph 6 of the lease demonstrates that the defendant is not liable for the plaintiff's damage and the complaint is insufficient in law; and (3) paragraphs 7, 9 and 10 of the complaint demonstrate that the defendant was never notified of the defective downspout prior to the plaintiff's damage, and when the defendant was notified, repairs were made. At a hearing on this motion the Trial Court entered an *29 order finding that the exculpatory clause in the lease, paragraph 6, relieved the defendant lessor of any liability for damages to the plaintiff lessee's property, that paragraph 22 is not inconsistent with paragraph 6, nor is there any ambiguity, granted the defendant's motion to dismiss, and dismissed the complaint and suit. This appeal is taken by the plaintiff from that final order of dismissal.
The plaintiff's theory is that the exculpatory clause of the printed lease, paragraph 6, and the defendant lessor's covenant to maintain and repair the inside downspouts of the typewritten rider, paragraph 22, are inconsistent, and that the exculpatory clause, paragraph 6, did not, as a matter of law, exonerate the defendant from liability for money damages to the plaintiff's personal property resulting from the defendant's alleged breach of the covenant to maintain and repair the inside downspouts, paragraph 22. The plaintiff argues that the exculpatory clause and the covenant to repair are inconsistent as the former purports to exonerate the defendant from liability and the latter imposes an obligation which, if breached, entitled the plaintiff to compensation for damages to its personal property resulting from the breach. The plaintiff has never contended that the exculpatory clause is invalid but rather that the covenant to repair imposed an affirmative duty on the defendant, a breach of which in effect superseded the exculpatory clause. The plaintiff makes no claim that there is any ambiguity in the language of those individual clauses of the lease when they are read separately, but insists that there is a conflict and uncertainty as to the meaning and effect to be given those clauses when taken together.
The defendant's theory is that under the exculpatory clause, paragraph 6, the plaintiff waived all claims for damage to its personal property, that there is no conflict *30 between the exculpatory clause and the defendant's covenant to repair the inside downspouts, paragraph 22, and that effect must be given to all of the terms of the lease; and, further, that even in the absence of an exculpatory clause, the defendant would not be liable, because (1) a landlord is not in default under a covenant to repair until notice of the defect is given to the landlord; and (2) a tenant assumes the risk of injury to his person and property in leased premises under the tenant's control, even though the lessor covenants to repair.
Neither party has referred to any applicable statute relating to exculpatory covenants, and, under the circumstances, for the purposes of this case, it is to be assumed that there is no such statute applicable here.
Many of the principles applicable to the instant case are set forth in 24 Ill. Law and Practice, pp 285, 286, 287, 289, 290, 296, 462, 468, 499, and 505.
[1-16] The rules applicable to the construction of other contracts are applicable to the construction of leases: Valentin v. D.G. Swanson & Co. (1960) 25 Ill. App.2d 285, 167 NE2d 14. Where the language used in a lease has a definite and precise meaning there is no need for interpretation. The instrument then speaks for itself and the parties are held to mean what they have clearly stated in the writing. A lease should be construed from within the four corners thereof and the Court may not add to, or detract from the instrument. A clause inserted in a lease in typewriting should prevail over a printed clause if they are in conflict, but the rule that effect must be given, if possible, to all of the terms of a lease applies to a lease which is partly typewritten and partly printed, and neither the printed portion nor the typewritten portion should be disregarded unless there is a conflict between the two: Cf. Lurie v. Rock Falls Mfg. Co. (1925) 237 Ill. App. 334; Papulias v. Wirtz (1947) 331 Ill. App. 376, *31 73 NE2d 122; Soucy v. Louis Obert Brewing Co. (1913) 180 Ill. App. 69; cf. Warner Const. Co. v. The Com'rs of Lincoln Park (1934) 278 Ill. App. 42; cf. American Express Co. v. Pinckney (1862) 29 Ill. 392. The intention of the parties should be ascertained from the language in the lease, and the words used should be given their common and generally accepted meaning. There is no necessity for resort to extrinsic facts or circumstances in order to determine the intent of the parties in executing a lease where such intent is clearly ascertainable from the lease itself. Where there is any doubt or uncertainty as to the meaning of the language used in a lease it should be construed most strongly against the lessor and in favor of the lessee: South Parkway Bldg. Corp. v. South Center Department Store, Inc. (1958) 19 Ill. App.2d 14, 153 NE2d 241; Moss v. Hunding et al. (1960) 27 Ill. App.2d 189, 169 NE2d 396. But that rule does not apply where the language used is plain and certain and contains no ambiguities. Leases should be construed as a whole. Every part should be construed with reference to all the other portions thereof so that each part may stand, if possible, and no part should be disregarded as superfluous. The lessor is bound to perform his part of the terms, covenants, or conditions of the lease and ordinarily is liable to the lessee for a breach thereof. On the breach on the part of the lessor of the terms or conditions of a lease, a cause of action arises in favor of the lessee for the damages sustained by him by reason of such breach: Watson et al. v. Hooton (1879) 4 Ill. App. 294; Campbell v. Banks (1930) 257 Ill. App. 354. A landlord and tenant may by express covenant or agreement regulate their respective duties of repair. On breach of the landlord's covenant to repair, the tenant may abandon the premises if they become untenantable by reason thereof, or may remain and recoup his damages *32 in an action for rent or by payment of less rent, or in a proper case he may make repairs and deduct the cost from the rent or sue the landlord for their cost, or may sue the landlord for damages and the damages in that instance are usually the difference between the rental value of the premises in repair and out of repair: Oppenheimer v. Szulerecki (1921) 297 Ill. 81, 130 NE 325. Agreements exempting a landlord of business or residential property from liability for damages are not void as against public policy, in the absence of a statute to a different effect: Jackson v. First Nat. Bank of Lake Forest et al. (1953) 415 Ill. 453, 114 NE2d 721; O'Callaghan v. Waller & Beckwith Realty Co. (1958) 15 Ill.2d 436, 155 NE2d 545. Generally the validity of an exculpatory clause in a lease providing that the landlord shall not be liable for damage to the property of the tenant has been upheld, in the absence of a statute to the contrary. An exculpatory clause will be strictly construed, if there is anything in its language or the facts and circumstances of the particular case requiring construction: Moss v. Hunding et al. (1960) 27 Ill. App.2d 189, 169 NE2d 396; Valentin v. D.G. Swanson & Co. (1960) 25 Ill. App.2d 285, 167 NE2d 14.
The only Illinois cases cited by the plaintiff in support of its view that the exculpatory clause of this lease, paragraph 6, and the lessor's covenant to repair the inside downspouts, paragraph 22, are inconsistent are Watson et al. v. Hooton (1879) 4 Ill. App. 294 and Campbell v. Banks (1930) 257 Ill. App. 354. We have previously referred to them. Both involved covenants by the lessor, express in the Watson case, and implied in the Campbell case, to repair the roof of a business building, and the damages suffered by the tenant to his property by reason of breaches of the lessor's covenant and resulting rainwater leakage. But neither *33 case involved an exculpatory clause in the lease and, necessarily, neither case holds an exculpatory clause and a lessor's covenant to repair to be inconsistent.
In Jackson v. First Nat. Bank of Lake Forest et al. (1953) 415 Ill. 453, 114 NE2d 721 and O'Callaghan v. Waller etc. Co. (1959) 15 Ill.2d 436, 155 NE2d 545, previously referred to, upholding the validity (in the absence of a contrary statute) of an exculpatory clause, though it does not specifically appear from the opinions, it seems reasonable to assume that there must have been covenants, in both cases, express, or implied under the circumstances, by the lessor, to repair the particular parts of the premises concerned, but in neither case did the Court seem to consider there was any inconsistency between the exculpatory clause as to money damages to the tenant and the lessor's covenant to repair, or that there was even any real problem or question in that respect.
And in Hyman et al. v. 230 So. Franklin Corp., et al. (1955) 7 Ill. App.2d 15, 128 NE2d 629, an even stronger case for placing possible liability on the lessor than the present case, since there only a part of certain business premises were leased to the plaintiffs tenants rather than the whole business building, as in the present case, an exculpatory clause as to money damages was held to bar a recovery by the plaintiffs tenants of any money damages to their property resulting from rainwater leakage through an alleged defective roof and other appurtenances. There too, though it does not specifically appear from the opinion, it seems reasonable to assume that there must have been a covenant, probably implied under the circumstances, by the lessor to repair the parts of the premises concerned, but again it does not appear to have been considered that there was any inconsistency between the exculpatory clause as to money damages and the lessor's covenant to repair.
*34 In Jersey Silk and Lace Stores, Inc. v. Best Silk Shops, Ltd., et al. (1929) City Court of N.Y., 134 Misc Rep 315, 235 NYS 277, the only other closely analogous case cited by either party, the plaintiff tenant of an entire building sued its defendant lessor for damages to its personal property, silk, from rain leaking through the roof. There was a covenant exempting the landlord from liability for leakage. The lease also required the tenant to make all repairs "excluding the roof," which the Court said "casts the duty of making repairs to the roof upon the landlord." The Court set aside a verdict for the plaintiff tenant for damages to its silk, ordered a new trial, and said, p 281:
"While one clause of the lease impliedly obligates the landlord to repair the roof, another clause in the same lease saves him from liability for damage from leakage. We cannot change the contract as made by the parties. And since the only theory upon which the landlord can be held is breach of covenant to repair, and the very covenant exempts the landlord from liability for the precise cause of the damage, it follows that plaintiff has no cause for action for damage to the silk by leakage of water. The clause exempting defendant from damage for leakage will not deprive plaintiff from recovering the difference between the rental value of the premises with the covenant broken and the rent agreed to be paid, nor of the reasonable cost of repairing the roof if the tenant had made the repairs."
Under the exculpatory clause in the instant lease, printed paragraph 6, "Lessor shall not be liable, and Lessee waives all claims, for damage to ... property sustained by Lessee ... resulting from the Building or any part of it or any equipment or appurtenance *35 becoming out of repair, ... or resulting directly or indirectly from any act or neglect ... of any other person. This Section 6 shall apply especially, but not exclusively, to damage caused by water, ... and shall apply equally whether any such damage results from the act or neglect ... of any other person, and whether such damage be caused or result from any thing or circumstance above mentioned or referred to, or any other thing or circumstance ... All personal property belonging to Lessee ... that is in the Building or the premises shall be there at the risk of Lessee ... only, and Lessor shall not be liable for any damage thereto...."
Under the lessor's covenant to repair, typewritten paragraph 22, "Lessor shall at its own cost and expense keep and maintain the ... inside down spouts in good order and repair ..."
[17] So far as their application to this case is concerned, we think those paragraphs have a definite and precise meaning and there is no need for interpretation. The instrument speaks for itself and the parties must be held to have meant what they stated. We cannot add to or detract from that language. There is no conflict between paragraph 6 and paragraph 22. That one is printed and the other typewritten is immaterial here. Effect must be given to all the terms, and neither paragraph may be disregarded. The parties' intent is ascertainable from the lease itself. There is no necessity for resort to extrinsic facts or circumstances. The language is plain and certain and contains no ambiguities, and there is no occasion to apply the rule of construing the language most strongly against the lessor. Each paragraph should be construed with reference to the other so that each may stand, if possible, and no part should be disregarded as superfluous.
*36 By paragraph 22, the lessor's covenant to repair, the lessor and lessee have by express covenant or agreement regulated and provided for their respective duties of repair, so far as material here, and have placed the duty on the lessor, as they may properly do. They do not, however, provide in that paragraph what the lessee's remedies shall be on breach by the lessor of that covenant. In the absence of a particular provision as to the lessee's remedies upon such breach by the lessor, the lessee normally may pursue one or more of several possible courses of procedure, and normally may have one or more of several possible remedies, including, among others, a cause of action for the money damages sustained by the lessee by reason of such breach, which may possibly include money damages suffered to the lessee's personal property, in any event it may be assumed for the present that money damages of that nature would properly be included in such a cause of action.
By paragraph 6, the exculpatory clause, however, the lessor and lessee have also provided that the lessor shall not be liable, and the lessee waives all claims for damage to property sustained by the lessee resulting from the building or any part, equipment, or appurtenance becoming out of repair or resulting from any act or neglect, specifically as to damage caused by water, and that the lessee's personal property in the building shall be there at the risk of the lessee, and the lessor shall not be liable for any damage thereto. Paragraph 6 does not change the fundamental, basic, substantive provisions of paragraph 22 as to the lessor's covenant to repair and the lessor's duty to repair. Paragraph 6 simply means what it says, and is limited to what it says, that, so far as applicable here, the lessor shall not be liable, and the lessee waives all claims for money damages, if any, to the lessee's personal property resulting because of water *37 from some part of the building becoming out of repair (by breach of the lessor's covenant to repair) or from any act or neglect (of the lessor) and that the lessee's personal property is there at its risk and the lessor is not liable for money damages thereto. In other words, one of the possible remedies or courses of procedure of the lessee upon breach by the lessor of the lessor's covenant to repair, paragraph 22, namely, a possible cause of action for the money damages to the lessee's personal property has been forbidden, waived, and released by the exculpatory clause, paragraph 6. But paragraph 6 does not deal with any other possible course of procedure or possible remedy which may possibly be available to the lessee upon such breach by the lessor of paragraph 22. The exculpatory clause here is not amenable to the strict construction against the lessor to which such clauses are frequently subjected. It is not void as against public policy, in the absence of an applicable statute to a different effect. It must be given effect. Paragraph 22 must also be given effect. And we perceive no reason why they both may not stand.
The complaint here being for a money judgment on an alleged cause of action for money damages to the plaintiff lessee's personal property, the order dismissing the complaint and suit is, under the circumstances, correct and should be and is affirmed. In our view it is not necessary to discuss other matters referred to in the briefs.
Affirmed.
SPIVEY, P.J. and WRIGHT, J., concur.
|
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NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0030n.06
Filed: January 10, 2006
No. 03-2113
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVE STRICKLAND, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TERRY PITCHER, Warden, ) WESTERN DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
) OPINION
)
____________________________________ )
Before: DAUGHTREY, GILMAN and SUTTON, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Steve Strickland was convicted in a Michigan
state court of both first-degree and second-degree criminal sexual conduct (CSC). He was sentenced
as a habitual offender to concurrent terms of imprisonment of 15 to 40 years on the first-degree CSC
count and 10 to 20 years on the second-degree CSC count. Strickland’s convictions and sentences
were affirmed on direct appeal within the Michigan court system, and the district court denied his
petition for a writ of habeas corpus. For the reasons set forth below, we AFFIRM the judgment of
the district court.
I. BACKGROUND
A. Procedural background
Strickland was charged with sexually molesting Randa Howland, the 7-year-old daughter
of his niece, on several occasions. Two charges were filed in relation to his conduct: (1) first-degree
CSC for engaging in sexual penetration with a person under 13 years of age, in violation of
Michigan Compiled Laws § 750.520b(1)(a), and (2) second-degree CSC for engaging in sexual
contact (as opposed to penetration) with a person under 13 years of age, in violation of Michigan
Compiled Laws § 750.520c(1)(a).
At Strickland’s first preliminary-examination hearing, the Michigan magistrate judge
concluded that there was sufficient evidence to charge him with the second-degree CSC count, but
not the first-degree CSC count. People v. Strickland, No. 209765, 2000 WL 33535512, at *3 (Mich.
Ct. App. Jan. 28, 2000). Over Strickland’s objection, a second preliminary-examination hearing was
conducted in which the prosecutor presented, in addition to the victim’s testimony, testimony on the
“penetration” element of the first-degree CSC charge from a medical doctor who had physically
examined the victim. Id. The magistrate judge then concluded that there was sufficient evidence
to charge Strickland with the first-degree CSC count as well.
Strickland was tried in December of 1997 and convicted on both counts of CSC. The
Michigan Court of Appeals affirmed his convictions on direct appeal, and the Michigan Supreme
Court denied further review. Strickland, 2000 WL 33535512, at *1; People v. Strickland,
618 N.W.2d 595 (Mich. 2000).
Strickland then filed a petition for a writ of habeas corpus in the United States District Court
for the Western District of Michigan pursuant to 28 U.S.C. § 2254. The magistrate judge assigned
to the case issued a Report and Recommendation, concluding that the habeas petition should be
denied. His recommendation was adopted by the district court. Although the district court also
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denied Strickland’s application for a Certificate of Appealability (COA), this court granted a COA
on his claims that
(1) insufficient evidence supports his first-degree criminal sexual conduct
conviction; (2) the trial court improperly permitted the prosecution to strike the sole
black juror from the jury venire for racially and sexually discriminatory reasons; (3)
the trial court improperly refused to strike a biased juror; and (4) erroneous
evidentiary rulings and prosecutorial misconduct denied him a fair trial.
(May 19, 2005 Order)
B. Facts relating to whether there was sufficient evidence of “penetration” to
support Strickland’s first-degree CSC conviction
Strickland’s insufficiency-of-the-evidence claim relates only to his first-degree CSC
conviction. Under the provision of Michigan law setting forth the crime of first-degree CSC, sexual
“penetration” is an element of the offense. Mich. Comp. Laws § 750.520b (“A person is guilty of
criminal sexual conduct in the first degree if he or she engages in sexual penetration with another
person and if . . . [t]hat other person is under 13 years of age.”). Strickland claims that his
conviction violates the Fourteenth Amendment’s Due Process Clause because the evidence of
penetration was allegedly insufficient.
The evidence of penetration came in the form of testimony from the victim, a physician, and
a police officer. Howland, eight years old at the time of the trial, testified that Strickland was the
only person who assaulted her. Strickland, 2000 WL 33535512, at *1. She further testified that
Strickland had “rubbed her ‘private parts’ with his ‘private part’ and his hand, and indicated that on
one occasion, [he] hurt her private part.” Id.
There was also testimony from Dr. Edward Cox, who had examined Howland. Id. Dr. Cox’s
examination found a decreased amount of hymenal tissue and a scar on the back wall of her vagina,
and concluded that Howland’s vagina had been penetrated by blunt force. Id. He could not come
-3-
to a conclusion, however, about what had penetrated her vagina. But Dr. Cox said that “this is
something that a child would not willfully do to themselves. This caused pain. This caused
bleeding. Kids don’t do that to themselves.” To counter Dr. Cox’s testimony, Strickland called
Debra Strickland, the sister of Howland’s mother, who testified to seeing Howland on more than one
occasion inserting an empty bottle into her vagina.
The prosecutor then presented rebuttal testimony on the penetration element. On direct
examination, Howland had denied having testified before the magistrate who conducted the
preliminary examination that Strickland had penetrated her. The prosecutor on rebuttal called a
police officer who read, over Strickland’s objection, portions of Howland’s preliminary-examination
testimony. In the exchange, the prosecutor asked what Howland’s response had been to the
question: “Where would his hands go once he put ‘em under your nightgown?” The officer replied
that her answer was: “In my private part.” See also Strickland, 2000 WL 33535512, at *4. As a
follow-up question, the prosecutor asked whether that response meant penetration, and the officer
said that it did. Id. Strickland did not object to the follow-up question.
C. Facts relating to Strickland’s claim as to the striking of an African-American
female from the jury panel
There were two African-Americans called as prospective jurors at Strickland’s trial. The
first was struck by the court for cause. The prosecutor exercised a peremptory challenge to strike
the other, Juror Dean-Wells. Strickland, 2000 WL 33535512, at *2. After Strickland objected, the
prosecutor defended the exercise of a peremptory challenge by stating:
[I] wanted to keep her only for the reason that she had children, but in this case, your
Honor, it involves a mother of three children. A black woman mother, inner city,
who was neglectful, who had her children taken away and part of what’s going to
come out in this trial is that her relationship with her significant other, husband, in
this case, involved domestic violence, involved the mother not being attentive and
-4-
neglectful to the daughter to the point where this case arose, and I’m going to have
to call that mother certain things. I plan on not being very kind to that mother in this
trial, and essentially putting the blame for this on the mother, other than the
defendant, and I didn’t think that Ms. Dean-Wells in her position, being the mother
of three children and having been a shooting victim herself in a domestic violence
case, I felt that she may take offense and may relate more to this mother that I will
be condemning in my opening and closing statement and I just didn’t feel because
of that that she would have been a good juror for the prosecution.
There is—also the other reason, of course, is that a close relative of hers was
convicted. Others had indicated that they were convicted by our office as well, but
the most important and compelling reason was that I felt that she would relate more
with the mother of this child that I would be very unkind to during this trial.
In this appeal, Strickland alleges that Dean-Wells was illegally struck from the panel of prospective
jurors because she was African-American and because she was a woman.
D. Facts relating to Strickland’s claim of an allegedly biased juror
During the course of Strickland’s trial, after the victim Howland had testified, Juror Kochneff
came forward to “express[] concern about the way in which the victim’s testimony was presented.”
In the judge’s chambers, Kochneff met with the judge, the prosecutor, and defense counsel.
According to the Michigan Court of Appeals, Kochneff
told the court that she wondered if the victim could have had an easier time
expressing what she was trying to say by using a doll. The court then asked the juror
if she was saying that she could not continue as a juror or that she just believed it
would have been a better way of handling the testimony. The juror responded that
she believed it would be a better way of handling the testimony.
Strickland, 2000 WL 33535512, at *3. Defense counsel asked that Kochneff be excused on the
grounds of bias, but the judge denied the request. Id.
E. Facts relating to Strickland’s claim that the trial court committed various
evidentiary errors
Strickland raises three evidentiary errors allegedly committed by the state trial court. He first
argues that the trial court improperly allowed portions of the victim’s preliminary-examination
-5-
testimony to be read during the trial. Second, he claims that the court erred in allowing the
prosecutor’s follow-up question about whether the response “In my private part” meant penetration.
Finally, Strickland argues that the prosecutor was permitted to cross-examine Debra Strickland in
an improper and inflammatory manner.
F. Facts relating to Strickland’s claim that the prosecutor engaged in misconduct
during her opening statement and closing argument
The final claim raised by Strickland is that the prosecutor engaged in misconduct during her
opening statement and closing argument. During the prosecutor’s opening statement, she said that
“Randa [Howland] will tell you that what penetrated her vagina was the defendant’s penis.” And
during her closing argument, the prosecutor asserted that Howland “‘said at the first hearing [the
first preliminary examination] . . . that it went in’ and that this proved penetration.” Strickland did
not object to these statements at the time they were made. Strickland, 2000 WL 33535512, at *1.
II. ANALYSIS
A. Standard of review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any
claim adjudicated on the merits in state court unless (1) the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court” . . . or (2) the state court’s
decision “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254 (d)). This standard
generally requires that federal courts defer to state-court decisions. Herbert v. Billy, 160 F.3d 1131,
1135 (6th Cir. 1998) (“[AEDPA] tells federal courts: Hands off, unless the judgment in place is
based on an error grave enough to be called unreasonable.”) (citation and quotation marks omitted).
-6-
The first line of analysis under AEDPA involves two distinct inquiries regarding the
consistency of the state-court decision with existing federal law. A state-court decision is
considered “contrary to . . . clearly established Federal law” if it is “diametrically different, opposite
in character or nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405 (2000)
(quotation marks omitted). To be found an “unreasonable application of . . . clearly established
Federal law,” the state-court decision must be “objectively unreasonable” and not simply erroneous
or incorrect. Id. at 409-11.
The second line of analysis under AEDPA concerns findings of fact made by the state courts.
AEDPA requires considerable deference to such factual determinations. “A federal court is to apply
a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear
and convincing evidence is offered to rebut this presumption. The appeals court gives complete
deference to the federal district court’s and state court’s findings of fact supported by the evidence.”
McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004) (citations omitted).
B. Sufficiency of the evidence relating to the “penetration” element of first-degree
CSC
The constitutional standard for whether a conviction can stand in the face of a claim of
insufficient evidence was set forth by the United States Supreme Court in Jackson v. Virginia,
443 U.S. 307 (1979). The Jackson Court held that “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original).
Strickland must therefore show that the Michigan courts’ application of the standard set forth in
Jackson was “objectively unreasonable.” See Williams, 529 U.S. at 409-11.
-7-
Setting aside for the moment Howland’s contested preliminary-examination testimony that
was read at Strickland’s trial, the remaining evidence on the element of “penetration” was
Howland’s testimony that Strickland was the only one who had sexually assaulted her, her testimony
that, on one occasion, Strickland had hurt her private part, and Dr. Cox’s testimony that Howland’s
vagina was in fact penetrated. See Strickland, 2000 WL 33535512, at *1. But Strickland argues that
the medical testimony did not link him to Howland’s injuries and that there was no evidence that he
penetrated her. To be persuasive, however, this argument requires looking at the medical testimony
in isolation. Viewing the evidence in the light most favorable to the prosecution, see Jackson, 443
U.S. at 319, the medical testimony establishes that Howland was penetrated at some point, and
Howland’s testimony provides the link that Strickland argues is missing—the source of the injury.
Strickland tries to counter this conclusion by emphasizing Debra Strickland’s testimony
about seeing Howland inserting a bottle into her vagina on more than one occasion, and essentially
arguing that Howland’s acts may have been the source of her vaginal injuries. But after again
viewing the evidence in the light most favorable to the prosecution, we believe that Dr. Cox’s
testimony that “a child would not willfully do [this] to themselves” negates this attempt by
Strickland to show that there was insufficient evidence that Strickland sexually penetrated Howland.
We therefore conclude that the Michigan Court of Appeals’s determination that there was
sufficient evidence to support Strickland’s first-degree CSC conviction was not an unreasonable
application of the Jackson standard. Because evidence other than the contested preliminary-
examination testimony was sufficient to support Strickland’s conviction, we need not address the
propriety of the state court’s admission of the contested evidence.
C. Peremptory challenge of an African-American female juror during jury
selection
-8-
In this part of the appeal, Strickland argues that the prosecution’s removal of Juror Dean-
Wells was motivated by both the race and the sex of the potential juror. The case of Batson v.
Kentucky, 476 U.S. 79 (1986), sets forth the standard to determine whether a potential juror was
excused for a racially discriminatory reason. In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme
Court set forth the now-familiar analysis under Batson:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has
made out a prima facie case of racial discrimination (step one), the burden of
production shifts to the proponent of the strike to come forward with a race-neutral
explanation (step two). If a race-neutral explanation is tendered, the trial court must
then decide (step three) whether the opponent of the strike has proved purposeful
racial discrimination. The second step of this process does not demand an
explanation that is persuasive, or even plausible. At this [second] step of the inquiry,
the issue is the facial validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered
will be deemed race neutral.
Id. at 767-68 (citations omitted) (alteration in original).
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), sets forth a similar standard to determine
whether a potential juror was excused as a result of discrimination on the basis of gender:
As with race-based Batson claims, a party alleging gender discrimination must make
a prima facie showing of intentional discrimination before the party exercising the
challenge is required to explain the basis for the strike. When an explanation is
required, it need not rise to the level of a “for cause” challenge; rather, it merely must
be based on a juror characteristic other than gender, and the proffered explanation
may not be pretextual.
Id. at 144-45 (citation omitted). In response to Strickland’s arguments relating to the prosecution’s
peremptory challenge of the African-American female juror, we must determine whether the
Michigan state courts applied Batson and J.E.B. in an unreasonable manner. See Williams, 529 U.S.
at 409-11.
-9-
The prosecutor’s lengthy explanation of why she exercised a peremptory challenge to strike
Dean-Wells essentially boils down to four concerns about the potential juror: (1) she was a mother,
(2) she had been a shooting victim in a domestic violence case, (3) the preceding two facts might
make her sympathize with Howland’s mother, also a victim of domestic violence, whom the
prosecutor planned to demonize during the case, and (4) a relative of the juror had been subjected
to prosecution in the same county. See also Strickland, 2000 WL 33535512, at *2.
The Michigan Court of Appeals determined that the reasons for the removal of Dean-
Wells— because she was a victim of domestic violence and because she had a relative who had been
prosecuted in the same county—were “clear and articulated racially neutral” reasons to remove her
as a juror. It thus concluded that Strickland had not shown “purposeful discrimination.” Id. We
are of the opinion the state court’s application of Batson and J.E.B. was not unreasonable. The
prosecutor presented an explanation for removing her that was “facial[ly] valid[]” and without
inherent “discriminatory intent.” Purkett, 514 U.S. 767-68; see Williams, 529 U.S. at 409-11.
Contrary to Strickland’s assertions, discriminatory intent is not evidenced by the simple fact that the
prosecutor used the words “black” and “woman” in addition to the explanations above to describe
the similarities between Dean-Wells and Howland’s mother.
D. Failure to remove the juror who came forward during trial to comment on the
manner of presenting Howland’s testimony
Strickland also argues that he was deprived of his right to a jury trial and his right to due
process when the state court refused to excuse Juror Kochneff, the juror who came forward after
Howland testified to express concerns about the manner in which Howland had been examined. The
Michigan Court of Appeals held that the comments made by the juror “did not reveal a bias or
-10-
prejudice that would influence how she would decide the case, and therefore her statements would
not form the basis for a challenge for cause.” Strickland, 2000 WL 33535512, at *3.
In so holding, the Michigan Court of Appeals did not cite any Supreme Court precedent. The
inquiry for us, therefore, is not whether the state court unreasonably applied Supreme Court
precedent, but rather is whether its decision was contrary to such precedent. See Williams, 529 U.S.
362, 405, 409-11 (discussing AEDPA’s “contrary to” and “unreasonable application of” provisions).
With respect to AEDPA’s “contrary to” provision, this court has held that the failure of a state court
to cite Supreme Court precedent does not necessarily entitle the petitioner to habeas relief: “The
state court decision need not cite Supreme Court precedent, or even reflect awareness of Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision contradicts
them.’” Dennis v. Mitchell, 354 F.3d 511, 517-18 (6th Cir. 2003) (citing Early v. Packer, 537 U.S.
3, 8 (2002)).
The question then is whether the Michigan Court of Appeals’s decision was contrary to
clearly established federal law as determined by the Supreme Court. In Strickland’s brief, the only
federal case cited with respect to this argument is Irvin v. Dowd, 366 U.S. 717, 722 (1961), in which
the Court held that “the right to [a] jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even
the minimal standards of due process.” Irvin, however, does not involve a factual setting applicable
to the potential juror in question. We must therefore search elsewhere for relevant federal precedent.
Strickland is essentially claiming that in revealing her thoughts on the manner that Howland
was questioned, Kochneff exhibited “actual bias.” We have found no Supreme Court case directly
on point. In the analogous context of excusing jurors during voir dire, however, the existence of
-11-
actual bias requires that the trial judge strike the biased juror. See, e.g., United States v. Torres, 128
F.3d 38, 43 (2d Cir. 1997) (stating that judges have the “authority and responsibility, either sua
sponte or upon counsel’s motion,” to dismiss prospective jurors for cause, and that such cause can
be demonstrated by “actual bias,” defined as “the existence of a state of mind that leads to an
inference that the person will not act with entire impartiality”).
Strickland characterizes the comments of Kochneff to the judge and counsel, made in an in-
chambers discussion, as representing “unmistakable” bias and “partiality [that] is plain from the
record and not subject to debate.” Saying that “using a doll . . . would have been a better way of
handling [Howland’s] testimony,” however, does not indicate that Kochneff was actually biased, let
alone actually biased against Strickland. Strickland, 2000 WL 33535512, at *3. The statements of
Kochneff simply do not reveal “the existence of a state of mind that leads to an inference that the
person w[ould] not act with entire impartiality.” See Torres, 128 F.3d at 43. We therefore conclude
that “neither the reasoning nor the result” of the decision of the Michigan Court of Appeals was
contrary to federal precedent. See Dennis, 354 F.3d at 517-18 (citation omitted); Williams, 529 U.S.
at 409-11.
E. Alleged state-law evidentiary errors
Strickland’s claims of evidentiary error relate to the reading of Howland’s preliminary-
examination testimony during the trial, the admission of the police officer’s response to the question
about whether Howland’s words—“In my private part”—meant penetration, and the manner in
which the prosecutor cross-examined Debra Strickland. The Michigan Court of Appeals found that
there was no error under the Michigan Rules of Evidence. Strickland, 2000 WL 33535512, at *4-5.
-12-
Strickland has not shown how the Michigan court rulings on these evidentiary issues resulted
in a violation of his federal constitutional rights. See Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir.
1994) (“Errors by a state court in the admission of evidence are not cognizable in habeas corpus
proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the
defendant the fundamental right to a fair trial.”). Because Strickland has not shown that the
evidentiary rulings resulted in a constitutional violation, they cannot form the basis for habeas relief.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”).
F. Prosecutorial misconduct
Strickland’s final claim is that the prosecutor engaged in misconduct by making unfulfilled
promises during her opening statement that Howland was sexually penetrated by Strickland and by
emphasizing in her closing argument Howland’s preliminary-examination testimony relating to
penetration. But Strickland did not object to either statement at the time they were made.
Strickland, 2000 WL 33535512, at *1. The Michigan Court of Appeals held that the failure to object
precluded review and that Strickland could not satisfy the exception to this waiver rule by showing
that not reviewing his claims would result in a miscarriage of justice. Id.
The failure to raise and preserve issues in a Michigan trial court generally precludes review
by a Michigan appellate court. People v. Grant, 520 N.W.2d 123, 128 (Mich. 1994) (“As a general
rule, issues that are not properly raised before a trial court cannot be raised on appeal absent
compelling or extraordinary circumstances.”) Failure to comply with state procedural rules also
-13-
precludes federal habeas review unless the petitioner shows adequate cause for not complying and
that actual prejudice resulted from the alleged violation. Gravley v. Mills, 87 F.3d 779, 784-85 (6th
Cir. 1996) (“[A] federal habeas corpus petitioner who fails to comply with a state’s rules of
procedure waives his right to federal habeas corpus review absent a showing of cause for
non-compliance and some showing of actual prejudice resulting from the alleged constitutional
violation.”)(quotation marks omitted).
In this case, Strickland did not comply with the Michigan procedural rule requiring that he
raise and preserve his objections at the trial level. He has not articulated any reason for not
objecting at the time the prosecutor made the statements, nor shown how he was prejudiced by the
prosecutor’s statements. We therefore decline to review Strickland’s prosecutorial-misconduct
claims. See id.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
-14-
|
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798 P.2d 530 (1990)
STATE of Montana, Plaintiff and Respondent,
v.
Delmar BLACK, Defendant and Appellant.
No. 88-206.
Supreme Court of Montana.
Submitted June 28, 1990.
Decided September 7, 1990.
Rehearing Denied October 25, 1990.
F. Woodside Wright, Helena, for defendant and appellant.
Marc Racicot, Atty. Gen., Paul Johnson, Asst. Atty. Gen., Helena, Ralph Patch, Roosevelt County Atty., Wolf Point, for plaintiff and respondent.
HUNT, Justice.
Appellant and defendant Delmar Black appeals from the order of the District Court of the Fifteenth Judicial District of the State of Montana, County of Roosevelt, which accepted defendant's plea of guilty to simple assault, a felony, and sentenced defendant to 5 years at the Montana State Prison. The sentence also required that defendant complete a sexual offender course while incarcerated. We affirm.
The issues on appeal are:
1. Whether defendant was denied his right to counsel at the evidentiary hearing ordered by this Court regarding defendant's claim of ineffective assistance of counsel.
2. Whether defendant's claim of ineffective assistance of counsel on direct appeal is res judicata due to the previous findings of fact and decision on this issue by the District Court and which was subsequently adopted by this Court.
3. Whether defendant's plea of guilty was entered voluntarily and with knowledge of its consequences.
4. Whether the sentence imposed upon defendant by the District Court was a legal sentence.
5. Whether the delay in appointing counsel for defendant on direct appeal was a denial of due process.
Defendant was charged by information with the felony offense of incest with his fourteen-year-old daughter, N.B. A jury trial was set to be held on February 8, *532 1988. On that date, but before the trial began, defendant's attorney and the county attorney approached the court with a plea agreement proposal. The plea agreement contemplated amending the charge against defendant from incest to simple assault. The county attorney made a motion requesting the court to allow such amendment and the motion was granted.
The factual basis for the amended charge was that Black had physically and mentally injured his daughter in the course of soliciting her for sex and engaging her in lengthy discussions regarding sexual matters. After lengthy interrogation by the court, defendant's plea of guilty to the amended charge was accepted, and, pursuant to the plea agreement, defendant was sentenced to five years in the Montana State Prison, subject to the condition that he enroll in and complete the sexual offender's treatment program at the prison.
On March 15, 1988, defendant filed a notice of appeal in District Court, together with a motion for appointment of counsel. In his motion for appointment of counsel, defendant stated that he needed new counsel because he intended to pursue a claim of ineffective assistance of counsel against the attorney originally appointed to represent him. The District Court did not act on defendant's motion to appoint counsel so, on May 4, 1988, defendant filed in this Court a motion to compel the District Court to appoint counsel. This motion to compel was supported by a brief which contained, as exhibits, copies of defendant's previous motions.
On June 14, 1988, this Court, after briefing by the State of Montana Attorney General, remanded the case to the District Court for an evidentiary hearing on defendant's claim of ineffective assistance of counsel. In our order, we denied defendant's request for appointment of counsel for the proceedings on remand.
The evidentiary hearing was held on August 31, 1988. The original sentencing judge did not preside. Defendant, representing himself, attended the hearing and participated in the examination and cross-examination of witnesses.
On September 7, 1988, the District Court entered its findings of fact and decision, concluding that defendant had not been denied effective assistance of counsel. In an order dated September 20, 1988, we adopted the findings and decision of the District Court denying defendant's ineffective assistance claim.
Counsel was then appointed by the District Court. This appeal on all the issues enumerated above, including the issue of ineffective assistance of counsel followed.
The first issue is whether defendant was denied his right to counsel at the evidentiary hearing ordered by this Court regarding defendant's claim of ineffective assistance of counsel. A defendant is entitled to assistance of counsel through the critical stages of a criminal prosecution "where potential substantial prejudice inheres in the absence of counsel." State v. Robbins, 218 Mont. 107, 111, 708 P.2d 227, 230 (1985). See U.S. Const.Amend. VI. Direct appeals are considered to be part of these critical stages. However, petitions for post-conviction relief are collateral attacks that are civil in nature and are not governed by the Sixth Amendment requirements for counsel. See Coleman v. State, 38 St.Rep. 1352, 1353-54, 633 P.2d 624, 626-627 (Mont. 1981).
In this case, although defendant originally raised the issue of ineffective assistance of counsel on direct appeal, the resolution of such issue required consideration of factual matters not contained in the record thereby making it an inappropriate issue for direct appeal. Section 46-20-701, MCA; State v. Elliott, 221 Mont. 174, 178, 717 P.2d 572, 575 (1986). Because defendant's filing failed to meet the requirements of a direct appeal, we appropriately treated such filing as a petition for post-conviction relief as provided in §§ 46-21-101 to 203, MCA. We then remanded defendant's claim to the District Court so that an evidentiary hearing could be held that would allow defendant to present those factual matters necessary to his claim. See State v. Laverdure, 212 Mont. 31, 33, 685 P.2d 375, 376 (1984).
*533 Our treatment of defendant's claim is in keeping with the conclusions reached by the Ninth Circuit Court of Appeals in U.S. v. Birges, 723 F.2d 666 (9th Cir., 1984). In Birges, the court specifically stated that ineffective assistance of counsel claims raised on direct appeal and involving the consideration of facts beyond the record would more appropriately be addressed by a petition for post-conviction relief. Birges, 723 F.2d at 670. See also People v. Pope, 23 Cal.3d 412, 152 Cal. Rptr. 732, 590 P.2d 859 (1979). Because defendant's claim of ineffectiveness involved facts beyond the record and because all of the requirements for a petition for post-conviction relief were met, defendant's claim was appropriately classified as a petition for post-conviction relief. As a result, defendant was not constitutionally entitled to counsel.
The second issue on appeal is whether defendant's claim of ineffective assistance of counsel on direct appeal is res judicata due to the previous findings of fact and decision on this issue by the District Court, which was subsequently adopted by this Court.
This Court has applied the issues of res judicata and law of the case to preclude an appellant from raising issues on appeal which were previously resolved by this Court. State v. Perry, 232 Mont. 455, 463-65, 758 P.2d 268, 273-74 (1988); State v. Smith, 220 Mont. 364, 372, 715 P.2d 1301, 1306 (1986). The principle is that an issue that has been finally decided cannot again be relitigated. State v. Zimmerman, 175 Mont. 179, 185, 573 P.2d 174, 177 (1977). "[W]here a decision has been rendered by the Supreme Court on a particular issue between the same parties in the same case, whether that decision is right or wrong, such decision is binding on the parties and the courts and cannot be relitigated in a subsequent appeal." Zimmerman, 175 Mont. at 185, 573 P.2d at 177. Two important policy rationales underlie these principles: judicial economy and the need for finality of judgments. Perry, 232 Mont. at 463, 758 P.2d at 273. They stand "for the proposition that there must be an end to litigation at some point." Perry, 232 Mont. at 464, 758 P.2d at 273.
In this case, an evidentiary hearing was held on the issue of ineffective assistance of counsel. The District Court rendered a decision which we reviewed and subsequently affirmed. To afford defendant additional review of the same issue between the same parties would negate the intent of the doctrines of res judicata and law of the case. Defendant's claim of ineffective assistance has been fully litigated and reconsideration of that claim is barred.
The third issue on appeal is whether defendant's plea of guilty was entered voluntarily and with knowledge of its consequences. We have already disposed of defendant's ineffective assistance of counsel claim and will not discuss defendant's assertion that his guilty plea was involuntary due to ineffective assistance of counsel.
Section 46-16-105, MCA, governs a district court's acceptance of a guilty plea and provides that:
(1) Before or during trial, a plea of guilty may be accepted when:
(a) the defendant enters a plea of guilty in open court; and
(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.
A guilty plea is presumed to be provided voluntarily and with full knowledge of its consequences when:
the District Court carefully ... examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based ...
State v. Docken, 222 Mont. 58, 62-63, 720 P.2d 679, 682 (1986) citing State v. Lewis, 177 Mont. 474, 582 P.2d 346 (1978). "[A] plea of guilty accepted by the District Court on the basis of that examination will *534 be upheld ..." Docken, 222 Mont. at 63, 720 P.2d at 682, citing Lewis.
In State v. Martz, 233 Mont. 136, 760 P.2d 65 (1988), we added that the district court must also inform the defendant of the following before accepting his or her guilty plea:
1) [the defendant's] constitutional rights;
2) the consequences of a guilty plea;
3) the possible maximum penalty involved; and
4) that the court could not involve itself in the plea agreement and was not obligated to accept the recommended sentence.
Martz, 233 Mont. at 143, 760 P.2d at 69.
In this case, it is evident from the record that the District Court properly examined defendant and correctly determined that defendant's plea was entered voluntarily and with full knowledge of its consequences. Defendant's assertion that he was never informed by the District Court that he would have to attend a sexual offender's program is directly contrary to the record as set forth in the transcript of the sentencing hearing where, when directly questioned by the court defendant specifically acknowledges such requirement:
THE COURT: But you understand that ... if you entered a plea here of guilty, you would be sentenced to five years in the state prison and that you will undergo 72 weeks or 73 weeks of sexual offenders therapy?
DEFENDANT: Yes.
Defendant also asserts that his plea was not entered with full knowledge because his hearing loss and the medication he was taking for his arthritis interfered with his ability to fully understand the consequences of his plea. The record fails to support defendant's assertion. During the questioning by the District Court, defendant answered all questions without hesitation and without request that the court repeat itself.
Defendant's plea of guilty was entered voluntarily and with full knowledge. The court informed defendant of the consequences of his plea and of the possible maximum penalty which may be imposed. There is nothing in the record to suggest that defendant was unable to hear or understand what the court asked or that he was not in full control of his faculties.
The fourth issue on appeal is whether the sentence imposed upon defendant by the District Court was a legal sentence.
Defendant argues that the District Court did not have the authority to require the defendant to complete a sexual offender's course while incarcerated. Defendant is mistaken.
In imposing the appropriate sentence, the District Court must comply with the requirements set forth in §§ 46-18-201 through -261, MCA. Under § 46-18-202(1)(e), MCA, the District Court is given broad discretion in imposing restrictions upon a defendant beyond those specifically required by statute:
The district court may also impose any of the following restrictions or conditions on the sentence provided for in XX-XX-XXX which it considers necessary to obtain the objectives of rehabilitation and the protection of society:
.....
(e) any other limitation reasonably related to the objectives of rehabilitation and the protection of society.
In imposing additional limitations there must be a correlation established between the additional limitations and either the rehabilitation of the offender or the protection of society. In State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), the District Court found that the burglary committed by the defendant was significantly influenced by excessive alcohol use. This connection between the crime committed and alcohol justified the District Court's sentence prohibiting defendant's use of alcohol while on parole. This Court reasoned that failure to restrict defendant's alcohol use "would not aid in his rehabilitation nor would it be conducive to the protection of society." Sullivan, 197 Mont. at 403, 642 P.2d at 1012.
In this case, the District Court properly included within defendant's sentence the *535 condition that defendant complete a sexual offender's course while incarcerated. Defendant was convicted of assault upon his fourteen-year-old daughter. There is ample support in the record, based upon the examination of defendant at the plea hearing, that the assault took the form of both bodily injury and invitations or solicitations concerning sexual intercourse which resulted in mental and emotional impairment to the daughter. The sexual nature of the assault established a significant connection between the crime and the need for defendant to attend the sexual offender's program. In order to protect society and to promote rehabilitation of the defendant, the District Court properly determined that defendant needed to attend the sexual offender's program. The sentence was proper.
The fifth issue on appeal is whether the delay in appointing counsel for defendant's direct appeal was a denial of due process.
Defendant alleges that the 21 month delay between the date of filing his notice of appeal and request for appointment of counsel to the date counsel was appointed was a denial of due process. We disagree.
Due process protection under both the United States Constitution and the Montana Constitution requires that a defendant be given a fair and meaningful appeal. U.S. Const.Amend. XIV; Mont. Const., Art. II, § 17. Because each case revolves around a unique set of facts, "consideration of the facts and circumstances of each case" must be evaluated to determine whether that particular defendant has been afforded a fair and meaningful appeal. Hankins v. Wicker, 582 F. Supp. 180, 182-183 (W.D.Pa. 1984).
This Court has not specifically dealt with this issue. Therefore, we look to the line of cases originating with United States v. Alston, 412 A.2d 351 (D.C. 1980), for support. See State v. Chapple, 660 P.2d 1208 (Ariz. 1983); State v. Hall, 145 Vt. 299, 487 A.2d 166 (1984); Lopez v. State, 769 P.2d 1276 (Nev. 1989).
Alston held that a delay in the processing of an appeal rises to the level of a due process violation only upon a showing of prejudice to the defendant. Alston, 412 A.2d at 357. Prejudice to the defendant is the sole determining factor in assessing whether a defendant was given a fair and meaningful appeal. Alston, 412 A.2d at 357; Chapple, 660 P.2d at 1226; Hall, 487 A.2d at 171. In alleging prejudice due to appellate delay, defendant must show that: 1) he is "unable to present an adequate appeal because of the delay, or 2) that he will be unable to defend adequately in the event a retrial is ordered." Hall, 487 A.2d at 171, citing Chapple, 660 P.2d at 1225-1226 and Alston, 412 A.2d at 356-357.
In this case, defendant has failed to show that the delay in hearing his appeal and in the appointment of counsel prejudiced his appeal. Delay alone is not adequate to raise a due process concern absent some proof of prejudice occasioned by the delay. Chapple, 660 P.2d at 1226 (15-month post-conviction incarceration without appeal does not, absent a showing of prejudice, violate due process). See also Alston, (33 1/4-month delay did not result in prejudice); Hall, (17-month delay did not result in prejudice).
Defendant has only presented general allegations concerning prejudice resulting from denial of appointment of counsel. It has already been determined that defendant was not entitled to counsel at the evidentiary hearing on remand. Immediately after the hearing, counsel was appointed to represent defendant in his current appeal. Defendant has failed to show that subsequent appointment of counsel was prejudicial.
Additionally, the time period defendant refers to as a delay is questionably labeled. Defendant filed his notice of appeal on March 15, 1988. After briefing, this Court issued an order remanding the case to the District Court and denying defendant appointment of counsel on remand. The District Court heard the remand on August 31, 1988, and issued its order on September 7, 1988. Upon review of the District Court's *536 order, this Court issued its order adopting the District Court's findings on October 7, 1988. Counsel for defendant was then appointed and the appeal was briefed by both parties. Based upon the above it is evident that this Court proceeded in an orderly, timely, and legally proper fashion to review and dispose of the case.
Affirmed.
HARRISON, BARZ, SHEEHY and McDONOUGH, JJ., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7615
JAMES REINKE,
Petitioner - Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cv-00696-HEH)
Submitted: May 30, 2008 Decided: June 12, 2008
Before TRAXLER and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James Reinke, Appellant Pro Se. Alice T. Armstrong, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Reinke seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2254 (2000) petition. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).
A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
We have independently reviewed the record and conclude that Reinke
has not made the requisite showing. Accordingly, while we grant
Reinke’s motion to amend, we deny his motion for a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7947
CHARLES D. WARREN,
Petitioner - Appellant,
versus
RANDALL LEE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CA-03-752-5-H)
Submitted: July 20, 2005 Decided: September 13, 2005
Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles D. Warren, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles D. Warren, a state prisoner, seeks to appeal the
district court’s order dismissing as untimely his petition filed
under 28 U.S.C. § 2254 (2000). The order is not appealable unless
a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that the district court’s assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Warren has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
|
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 15, 2014 Session
IN RE: A-ACTION BONDING COMPANY
Appeal from the Circuit Court for Maury County
No. B-100 Robert L. Jones, Stella L. Hargrove, Jim T. Hamilton,
and Robert L. Holloway, Judges
No. M2013-01526-CCA-R3-CD - Filed October 15, 2014
This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of
the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of
the company, its principal, and one of its agents based on its finding that the agent solicited
an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).
The appellant argues that the court improperly considered as evidence a cell phone recording
of a videotaped conversation between the agent and the inmate when the original jail
videotape had been destroyed and the cell phone recording was made by a competitor and
contained an altered version of the original. We agree. We also agree that, without the
improperly admitted recording, there was insufficient evidence that the agent solicited
business in violation of the statute. Accordingly, we reverse the judgment of the trial court
and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its
agent.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Dismissed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,
and N ORMA M CG EE O GLE, J., joined.
Samuel L. Patterson, Columbia, Tennessee (at hearing); and Robert E. Lee Davies, Franklin,
Tennessee (on appeal), for the appellant, A-Action Bonding Company.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case stems from the actions of A-Action president, James Bloss, and A-Action
employee, Debbie Farris, in having gone to the Maury County Jail to speak with an inmate
who, along with a co-defendant, was being held at the jail on a murder charge. In a letter to
the Maury County Circuit Court, Kendall Vandiver, President of Stoney’s Bail Bonding, and
Billy Hood, President of ABC Bonding, Inc., complained that A-Action had improperly
solicited their client, Billy Shouse, at the Maury County Jail on February 7, 2013. They
stated that they had reviewed the videotape of the jail conversation between their client and
the A-Action employee and were including a copy of the videotape, along with supporting
affidavits, with their complaint.
The trial court subsequently forwarded the letter and its attachments to the district
attorney’s office, which responded with a May 1, 2013 motion to suspend/strike from the
rolls of professional bondsmen in the district James Bloss, President of A-Action Bonding,
and Debbie Farris, A-Action Bonding employee, for having engaged in the unprofessional
conduct of soliciting a client at the county jail.
At the evidentiary hearing, Chief Deputy Nathan Johns of the Maury County Sheriff’s
Department testified that Kendall Vandiver asked to view the jail’s videotape of a
competitor’s conversation with inmate Billy Shouse. He said he viewed the videotape first,
which was of Ms. Farris, Mr. Bloss, and another female in the bonding room having a
conversation with Shouse, and then allowed Vandiver to view and record it on his cell phone.
He stated that only Farris’ and Bloss’s side of the conversation was audible on the recording
but that, as he recalled, it “appeared that they [were] . . . trying to get that inmate out and .
. . there was some confusion as to . . . if they [were] supposed to be there or if maybe
somebody else was supposed to be there.” After the disc of Vandiver’s cell phone recording
was played, Deputy Johns agreed that it appeared to be an accurate representation of part, but
not all, of the conversation contained on the original jail recording. The recording was
subsequently admitted as an exhibit to the hearing.
On cross-examination, Deputy Johns testified that Vandiver contacted him about
viewing the recording two or three days after the February 7 conversation between the inmate
and the competitor bail bondsmen took place. He said that the jail’s recording system, which
was “data driven,” saved videos on the computer for approximately seven to ten days. He
testified that the clock visible on the bottom of the screen in the recording was fairly
accurate. He described the jail’s computer recording system as “pretty antiquated” and said
that it recorded action in three-minute segments, which meant that “if you want to view
-2-
something, then you have to click on – you have to watch three minutes, and then the system
stops, and then you have to click on the next three minute segment and then the system
stops.” There should not, however, have been a seven or eight-minute lapse in the recording,
as was visible on Vandiver’s cell phone recording, unless there was a seven or eight-minute
period of time during which there was no motion in the room, as the system was “set up on
motion.” Finally, he testified that he had no way of knowing whether Vandiver recorded
every section of the jail video on his cell phone.
Kendall Vandiver testified that on February 6 he met with Billy Shouse’s father,
uncle, and cousin for two to three hours about bonding Shouse out of jail. He said that when
Shouse’s father left his office that day, he told him that he would be back the following
morning. The next morning when he returned, Shouse’s father told him that he was ready
“to get Billy out” but had to go to the bank to obtain the funds. Vandiver said that while he
was gone, one of his agents, Candice Conner, contacted the jail to make sure there were no
holds on Shouse from other counties and was told that A-Action Bonding Company “had
Billy Shouse at the bonding window talking to him about getting him out of jail.”
Vandiver testified that when Shouse’s father returned, he told him that neither he, nor,
to his knowledge, any of his family members had contacted A-Action about bonding his son
out of jail. Vandiver said that his company bonded Shouse out of jail approximately an hour
later. The next day, he contacted Deputy Johns to voice his concerns about A-Action’s
behavior. Approximately an hour later, Deputy Johns called to ask him to come to the jail
to look at what he had found on the jail videotape.
Vandiver testified that he viewed the jail’s videotape of the encounter at the jail and
copied it on his phone. He said he heard no discussion by Bloss or Farris on the videotape
“concerning getting [Billy Shouse’s co-defendant] Joe Truett out of jail[.]” He stated that
the video contained on the disc he submitted in connection with his complaint against A-
Action was not a complete tape because he had lost one clip of the video he recorded on his
cell phone. The lost clip consisted of “Farris leaning up on the glass in the bonding room,
the hole that you would speak through . . . [and] whispering through that hole.” According
to Vandiver’s testimony, it was impossible to hear what Farris was saying during the portion
of the clip that had been lost. He had no idea how he had lost that particular clip and, to his
knowledge, it was the only portion of the original recording that had been lost.
On cross-examination, he testified that Shouse’s neighbor, Nicole Scott, had contacted
one of his agents, Candice Conner, about bonding Shouse out of jail. Although Scott did not
currently work for his company, he had sent her to school in order for her to be qualified to
write bonds in the district. He claimed he had no knowledge of her having business cards
indicating that she was a licensed bail bondsman for Stoney’s Bail Bonding or of her having
-3-
advertised herself as such on her Facebook page. Finally, he testified that he watched and
recorded what Deputy Johns showed him of the jail video; he had no idea how the jail
recording system worked and was not controlling the system at the time he made his
recording.
Candice Conner, a seven-year employee of Stoney’s Bail Bonding, testified that
Nicole Scott contacted her on February 6 about posting Billy Shouse’s bond and later that
afternoon came into the office with Shouse’s father, “Baby Ray” Shouse, to fill out the
appropriate paperwork. Conner said she informed Mr. Shouse that Stoney’s could not write
the entire bond because it exceeded their bond limits and asked if it would be all right for her
to contact another company to write $100,000 of the bond. The next morning, Mr. Shouse
returned to the office and made the bond. Conner testified that she and Billy Hood of ABC
Bonding then went to the jail to post Billy Shouse’s bond. Before making that trip, she called
the jail to find out if Billy Shouse had any holds on him from other counties and learned from
the booking officer that Farris was at the bond window talking to Billy Shouse about posting
his bond. On cross-examination, Conner testified that Nicole Scott was a former employee
of Bloss and was currently in the process of trying to get qualified as an agent of Stoney’s
Bail Bonding.
Ray Shouse testified that his son told him to go to Nicole Scott, a neighbor, and that
she would accompany him to the bonding office to make bond. He said he stopped at an
office that he thought was owned by John Toddy,1 only to be told by the people there that
Toddy had “sold out.” He, therefore, sat and talked with those people and ultimately used
them to make his son’s bond. He could not recall their names, but later identified them at the
hearing as Vandiver and Conner. On cross-examination, he testified that Vandiver and
Conner told him that they had taken over Toddy’s bonding company. He said he had never
talked to Bloss or Farris and that neither one had ever called him.
The first defense witness, Mitzi Truett, testified that her son, Joseph Truett, was
currently in the Maury County Jail charged with murder. In an attempt to get him out of jail,
she and her husband had called several bonding companies listed in the Maury County
telephone book, including Debbie Farris of A-Action Bonding. Mrs. Truett testified that she
and her husband were unable to come up with all the money required and that her son told
her that his co-defendant, Billy Shouse, had informed him that his (Shouse’s) father would
help Truett make his bond. According to Mrs. Truett’s testimony, her son told her that Billy
Shouse said she should call his father and have him meet with Mrs. Farris at the jail to make
the arrangements:
1
We note that the appellant’s brief refers to this bail bondsman’s last name as “Totty” rather than
“Toddy.”
-4-
[M]y son, when he called me, said that Mr. [Billy] Shouse wanted him to have
me call his father and have . . . Mr. Shouse’s father meet with Mrs. Farris at
the jail because he was going to – Joseph said that Mr. [Billy] Shouse told him
that if he got bonded, he would help him get bonded.
Mrs. Truett testified that she conveyed that information to Farris. She said that Farris later
called her back to inform her that someone else was in the process of bonding Billy Shouse
out and that she would be unable to help with Truett’s bond unless Mr. and Mrs. Truett were
able to come up with the full amount required. Mrs. Truett testified that she and her husband
were the ones who contacted Farris first.
On cross-examination, Mrs. Truett testified that Farris wanted her to give her the
Shouses’ telephone number so she looked it up in the telephone book and called and spoke
with Mrs. Shouse, who was “very upset” and told her that her husband and another relative
were at the jail. After that conversation with Mrs. Shouse, she called Farris back. In
response to questions by the court, Mrs. Truett testified that when she called Farris back, she
informed her that Mr. Shouse was meeting someone at the jail and asked her if she was the
person he was meeting. At that point, Farris told her, “[N]o, they already had somebody else
over there.”
Mrs. Truett further testified that her son told her in her phone conversation with him
that Billy Shouse wanted her to call both his father and Debbie Farris of A-Action Bonding.
She reiterated that she and her husband initiated all of their conversations with the various
bonding companies they contacted in their efforts to get their son out of jail. She said that
her son’s bond was set at $350,000 and that none of the bonding companies they contacted
quoted anything less than $35,000 as the amount they would be required to come up with in
order to make the bond.
Roger Truett, Mrs. Truett’s husband, testified that after his son called to inform him
he was in jail, he contacted all of the bonding companies, including Debbie Farris’, in an
effort to find one that would help get his son out of jail. In response to questions from the
court, Mr. Truett testified that his son told him that Mr. Shouse was “going to try to use
Debbie [Farris] and them for a bond” and that Billy Shouse had told him that if he called Mr.
Shouse, he would try to “help him out, too, you know, get the bond maybe together.” He said
he believed that Farris’ bonding company was the first one that he called, but he was unable
to speak with her and instead left a message before going on to call all the other bonding
companies listed in the phone book. He explained that he “just wanted [his son] out” and
was “trying to find the cheapest way to get him out[.]” He said that none of the companies
he talked with had offered him a discount and that he and his wife were currently “[j]ust
trying to come up with some money” to make the bond.
-5-
Both Mr. and Mrs. Truett’s affidavits were introduced as exhibits at the hearing, as
were the affidavits of Debbie Farris and James Bloss.
Debbie Farris testified that she had been a licensed bail bonder for nine and a half
years and was employed by A-Action Bonding. On February 6, 2013, she received a
telephone call from Mr. Truett, which was interrupted when he had to take another call. He
called her back a short time later and they discussed in some depth the nature of bail bonds,
where he and his wife worked, and what kind of collateral they owned. From their
discussion, she concluded that the Truetts would not be able to make their son’s bond at that
time. Farris said that she received “a few phone calls that morning” from both Mr. and Mrs.
Truett, including one in which they informed her that their son had told them that Mr. Shouse
was going to help him make bond, and in which they asked her to go to the jail to speak with
him.
Farris testified that, after receiving that phone call from the Truetts, she, Bloss, and
another A-Action agent, Lydia Centeno, went to the jail and requested to speak with Billy
Shouse. Approximately fifteen minutes later, he was brought to the window. Farris said that
the video that was played in court did not contain the full version of the events that transpired
that day. She stated that the time that elapsed between her request to speak to Billy Shouse
and his arrival at the window was not in the video, nor was her initial conversation in which
she informed him she had received a call from the Truetts, who had asked her to see him and
who had told her he might be willing to help their son get bonded out of jail, and Shouse’s
answer of “yes.” Further conversation that was left out of the video played in court included
conversation surrounding Billy Shouse’s comment about having been told that he “couldn’t
do a property bond”:
And that’s – at that point is when Mr. Bloss asked what kind of property he
had or how much property, I’m not sure the exact wording. And then on the
video I think at that point it might cut off. And then there’s some conversation
that’s left out of the video where he said that they said I couldn’t do a property
bond. I said, who said you couldn’t do a property bond. He said, Toddy’s up
here on the corner. I said, are you working with another bonding company.
He said, well, we’ve talked to Toddy’s and we – I don’t think they’re going to
be able to do it because they want too much money. And I said, well, I said
why can you not do a property bond. Because he had previously stated that he
and his dad, I believe, owned quite a sum of property. And then I proceeded
to explain to him my knowledge of the process of a property bond.
Farris testified that when Billy Shouse told her that they had been working with
Toddy’s bail bonding company, she turned to Bloss and said that she thought they had been
-6-
misled on the bonding company. She said that John Toddy, whose company was named A
First, was still actively writing bail bonds in Maury County and was doing so in February
2013, at the time the events in the video transpired. She identified the cell phone records of
the telephone calls she and the Truetts exchanged, which were admitted as an exhibit and
which, she said, showed that she received two phone calls from Mr. Truett on February 6 and
exchanged a total of four calls with Mrs. Truett on February 7. Mrs. Truett first called her
at 9:55 a.m. on February 7 to ask her to go to the jail; she called Mrs. Truett back at 10:55
a.m. after leaving the jail to inform her that Billy Shouse had indicated he was working with
another bonding company and had asked her to call his father but did not have a valid phone
number; Mrs. Truett called her back at 11:02 a.m. after talking to the Shouses to tell her that
they were, in fact, working with another bonding company; and Mrs. Truett called her again
at 11:57 a.m. to ask if they could still work with them on bonding her son out of jail.
Farris further testified that during her conversation with Billy Shouse, Bloss walked
over to the board that listed the bonding companies and their bonding limits and made the
comment that Stoney’s could only write a $273,000 bond and would obviously have to call
in somebody else to write the remaining portion of the bond. She said that the comment that
can then be heard about how the “backstabbing” was not going to stop was a reference to a
previous unpleasant incident she had had with Scott, who had been terminated from A-
Action Bonding Company. In response to questioning by the court, she testified that she
went to the jail on February 7 to talk to Billy Shouse about his father making the bonds for
both Billy Shouse and Joseph Truett.
In the short portion of her cross-examination testimony that is transcribed, she
acknowledged that no one from the Shouse family had approached her about making
Shouse’s bond. The rest of her cross-examination testimony, as well as the direct and cross-
examination testimonies of James Bloss and a defense computer expert, was lost due to the
court reporter’s having spilled a cup of coffee on her laptop.
Because of the loss of the remaining testimony, both the State and A-Action Bonding
submitted statements of the evidence in the case. According to A-Action’s statement, Bloss’s
testimony essentially corroborated Farris’ about why they went to the jail and the fact that
the video played in court did not contain a full and accurate recording of their conversation
with Billy Shouse. Bloss also testified that Nicole Scott was a former employee whom he
had fired for not turning in bond premiums. Mitchell E. Davis, the defense’s computer
expert, testified that he had examined the video clip and concluded that it was not a complete
and accurate recording of the events it depicted. Among other things, he testified that the
format of the original recording had been changed and re-generated using Windows Movie
Maker and that the video had evident starts and stops demonstrated by spectral analysis.
-7-
According to the State’s statement of the evidence, Bloss admitted that he had been
suspended from writing bonds for six months on a prior occasion and that he would have
made Billy Shouse’s bond for $15,000, which, according to the State, “was less than one-half
of what the premium would have been for the original bond.” The State also characterizes
the evidence at the hearing with the following statement: “Neither Jimmy Bloss nor Debbie
Farris ever admitted asking Shouse about making Joe Truett’s bond which was the reason
they went to the Maury County Jail.” We note, however, that, at least with respect to Farris’
testimony, this is a misstatement of the evidence, as Farris testified that she spoke with Billy
Shouse about making Truett’s bond during the first part of her conversation with Shouse,
which was not included in Vandiver’s cell phone recording.
On May 29, 2013, the Maury County Circuit Court entered an order suspending the
bonding authority of A-Action Bonding Company for a period of thirty days, the bonding
authority of James Bloss for a period of ninety days, and the bonding authority of Debbie
Farris for a period of six months, with the bonding authority of A-Action and Bloss
automatically reinstated after their respective suspensions and Farris required to apply for
reinstatement at the end of her suspension period. In reaching this decision, the court found
that “[t]he most compelling evidence” was the video recording. The court noted that there
was “an unfortunate gap of six minutes” in the video and expressed its concerns that
“statements that could have been favorable to Bloss and Farris were, for some reason,
omitted from the DVD and are no longer available to the Court.” The court concluded that
fairness mandated that the loss of such evidence reduce its weight and “must result in a
significant reduction of any suspension for solicitation[.]” The court further found, however,
that it was clear from the video that, despite Bloss’s and Farris’ awareness that the Shouse
family was already working with Stoney’s Bail Bonding, Farris tried to persuade Shouse to
do business with A-Action instead. The court’s order states in pertinent part:
The most compelling evidence was the video recording which clearly
shows Debbie Farris asking Billy Shouse what he could “come up with.”
Almost immediately, Jimmy Bloss asked Billy Shouse, “How much property
have you got?” Then there is an unfortunate gap of six minutes which Mr.
Vandiver admits recording from the jail video before it was forever lost by
being recorded over seven to ten days later. Mr. Vandiver cannot explain how
those six minutes were lost, and the Court is concerned that statements that
could have been favorable to Bloss and Farris were, for some reason, omitted
from the DVD and are no longer available to the Court.
Fairness mandates that the loss of such evidence significantly reduces
the weight which could otherwise be given to a complete and accurate
recording. Such loss also must result in a significant reduction of any
-8-
suspension for solicitation, because Vandiver’s loss of critical evidence should
not result in him and other competitors getting an undue increase in business
during any suspension of A Action.
After the six-minute gap, it is clear from the remaining few minutes of
video that Bloss and Farris are aware that Stoney’s has been contacted by the
Shouse family for making the bond, that Bloss comments that Stoney’s does
not alone have adequate authority to make Shouse’s bond, and that Farris is
encouraging Shouse to tell Stoney’s that he has changed his mind and decided
to do business with A Action.
Farris[’] phone records and sworn testimony clearly established that
Farris had been contacted by the Truett family about making Truett’s bond and
w[as] told that Shouse might help finance Truett’s bond premium if Shouse
himself could make bond. Those communications might have justified A
Action contacting Shouse about making a Truett bond but cannot be an excuse
for A Action soliciting at the jail the making of the Shouse bond. The Court
recognizes that the making of a Truett bond may have been discussed during
the six-minute gap in the recording, but that possibility does not excuse or
mitigate the obvious and flagrant effort of Debbie Farris to solicit Shouse’s
bond.
There are significant inconsistencies between the testimony of Farris
and Bloss on the one hand and their own affidavits, phone records, and video
statements on the other hand. Such inconsistencies sufficiently discredit their
testimony and defenses. The prosecution’s witnesses are not directly
discredited in their testimony, but their reliance upon the video recording as
evidence of solicitation is significantly weakened by the failure to preserve a
complete and accurate recording.
....
The undersigned judges find that Debbie Farris intentionally solicited
Billy Shouse to let A Action make his bond while he was still a prisoner at the
jail and after learning that another bonding company had been contacted by the
Shouse family and was in the process of making the bond. The undersigned
judges also find that Jimmy Bloss had sufficient knowledge of Farris’
solicitation efforts and condoned the same.
Both parties filed timely notices of appeal. The State, however, followed with a
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request for permission to voluntarily dismiss its appeal on the basis that “there is no vehicle
for the State to appeal the judgment of the trial court suspending an appellant’s bonding
privileges under Tenn. Code Ann. § 40-11-125 and Tenn. R. App. P. 3 (c)[.]” We granted
the State’s request, and the matter is now before us on the notice of appeal filed by A-Action
Bonding Company.
ANALYSIS
A-Action argues that the trial court committed reversible error by admitting into
evidence the altered tape of the conversation at the jail when the original had been destroyed.
The State responds by arguing that the appellant has failed to show that the court abused its
discretion in admitting the evidence and that the evidence supports the court’s decision to
suspend the bonding privileges of A-Action, its principal, James Bloss, and its agent, Debbie
Farris.
Tennessee Code Annotated section 40-11-125 provides that “approval of a
professional bondsman or other surety may be withheld, withdrawn or suspended by any
court if, after investigation, it appears that a bondsman . . . [i]s guilty of professional
misconduct as described in § 40-11-126.” Tenn. Code Ann. § 40-11-125(a)(3) (2010).
Tennessee Code Annotated section 40-11-126 provides in pertinent part that
the following is deemed unprofessional conduct and no bondsman or surety
agent shall: . . . [s]olicit business directly or indirectly, by active or passive
means, or engage in any conduct which may reasonably be construed as
intended for the purpose of solicitation of business in any place where
prisoners are confined or in any place immediately surrounding where
prisoners are confined[.]
Id. § 40-11-126(6). A bondsman whose authority to write bonds has been revoked or
suspended “shall have the right of appeal to the next highest court having criminal
jurisdiction, and the appeal shall be heard de novo.” Id. § 40-11-125(d).
At the hearing, A-Action objected to the admission of the videotape on the basis of
the Tennessee Rules of Evidence, arguing that the altered tape was not a true and accurate
depiction of the events it recorded and that its probative value was substantially outweighed
by the danger of unfair prejudice. Generally, the admission of evidence is a matter left to the
discretion of the trial court, and the trial court’s decision will not be disturbed on appeal
absent an abuse of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “An abuse
of discretion occurs when the trial court applies an incorrect legal standard or reaches a
conclusion that is ‘illogical or unreasonable and causes an injustice to the party
-10-
complaining.’” State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (quoting State v. Ruiz,
204 S.W.3d 772, 778 (Tenn. 2006)).
We agree with A-Action that the trial court improperly admitted the videotape as
evidence in this case. First, the videotape was neither the original nor an accurate
reproduction of the original. Tennessee Rule of Evidence 1002, the “best evidence rule,”
generally provides that in order to prove “the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required.” “Stated simply, the underlying
theory is that only the best or most accurate proof of written or similar evidence should be
admitted, to the exclusion of inferior sources of the same proof, absent some extraordinary
justification for the introduction of secondary evidence.” Neil P. Cohen et al., Tennessee
Law of Evidence § 10.01[2][a] (6th ed. 2011). Although the rules provide for the
introduction of a duplicate in place of the original, the cell phone recording of the jail
videotape, which all the parties agreed did not contain the full version of the original
recording, does not meet the definition of a “duplicate,” which is “a copy produced by the
same impression as the original . . . or by other equivalent techniques which accurately
reproduce the original.” Tenn. R. Evid. 1001(4), 1003.
Second, the videotape was not properly authenticated. Tennessee Rule of Evidence
901 provides that “[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to the court to support a finding
by the trier of fact that the matter in question is what its proponent claims.” One manner in
which such authentication may occur is by testimony of a witness with knowledge “that a
matter is what it is claimed to be.” Tenn. R. Evid. 901(b)(1). As explained in Tennessee
Law of Evidence:
There are two common scenarios in which videos are utilized as
evidence. The first is the video that constitutes real evidence because it shows
the precise event at issue in the case. Examples include the bank camera’s
video of a robbery, or a home video that unintentionally captures an event
which later gives rise to a cause of action, such as a plane crash or automobile
accident. To authenticate such evidence, the photographer or one who set up
the automatic camera or monitored its tape or video images would be the ideal
witness. The authenticating witness should be prepared to show, to the court’s
satisfaction, that the video accurately portrays what it is presented to prove.
This will require the authenticating witness to establish when and where the
video was made, under what circumstances, and that it has not been altered in
any fashion. Even if the photographer is available, anyone else can
authenticate it who can establish that the video produced a true and accurate
depiction of the event recorded.
-11-
Tennessee Law of Evidence, § 4.01[22] (6th ed. 2011) (footnote omitted).
As stated previously, the witnesses, including Chief Deputy Johns and Vandiver,
agreed that the cell phone recording made by Vandiver was not a full and complete version
of the jail recording. Vandiver testified that he was not controlling the jail recording and
recorded on his cell phone only what Deputy Johns showed to him. He acknowledged that
he lost one portion of the clip he recorded and could not say with certainty whether that was
the only portion he lost. Deputy Johns testified that there appeared to be a seven or eight-
minute gap on the recording and that he had no way of knowing whether Vandiver recorded
on his cell phone every portion of the jail recording that he showed to him. It is, thus,
abundantly clear that the cell phone recording did not produce a true and accurate depiction
of the events that transpired at the jail that morning.
Third, the probative value of the cell phone videotape was substantially outweighed
by the danger of unfair prejudice to the appellants. See Tenn. R. Evid. 403. In its decision
to admit the recording, the trial court concluded that the gaps went to its weight rather than
its admissibility and that, given the testimony of the appellants with respect to their
communication with the inmate, the recording, despite any gaps, was “going to be so
important for testing credibility.” We respectfully disagree. The recording was not the
original, was not a duplicate, and was made by a competitor bail bondsman who, along with
some of his staff or quasi-staff, apparently had an acrimonious relationship with the
appellants. Most significantly, it was a version of the original recording in which several
critical minutes of the initial conversation between Farris and the inmate had been “lost.”
As such, its probative value for testing the credibility of the witnesses was substantially
outweighed by the danger of unfair prejudice to the appellants’ case. We conclude, therefore,
that the trial court erred in admitting the videotape into evidence.
We further conclude that, without the improperly admitted videotape, there was
insufficient evidence to support a finding that the appellants engaged in unprofessional
conduct. Absent the videotape, the evidence consisted of the testimony of the witnesses at
the hearing and the affidavits submitted as exhibits in the case. From this evidence, it is clear
that Farris and Bloss had a conversation with Billy Shouse at the bonding window after Mr.
Shouse had, at the very least, begun the process of engaging Stoney’s and ABC Bail Bonding
to bond Billy Shouse at of jail. What is not clear, however, is exactly what the conversation
entailed. According to Farris, Bloss, and the Truetts, they went to the jail at the request of
the Truetts, who informed Farris that it was Billy Shouse’s request that she speak with him
and/or his father about the possibility of his bonding both Shouse and Truett out of jail. This
is at least partially corroborated by the testimony of Deputy Johns, who said that it appeared
from his viewing of the jail videotape that there was “some confusion” as to which bonding
company was “supposed to be there.” Although Vandiver testified that he heard no
-12-
conversation on the videotape about A-Action bonding Truett out of jail, he also testified that
Farris’ initial conversation with Billy Shouse, on the portion of the clip that he had lost, was
inaudible. In sum, there was insufficient evidence, apart from the improperly admitted
videotape, to support a finding that the A-Action agents or principal solicited business at the
jail.
CONCLUSION
Based on the foregoing authorities and reasoning, we reverse the judgment of the trial
court and dismiss the motion to suspend the bonding privileges of A-Action Bonding, James
Bloss, and Debbie Farris.
_________________________________
ALAN E. GLENN, JUDGE
-13-
|
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|
United States Court of Appeals,
Eleventh Circuit.
No. 95-8691.
William A. HOLBROOK, Plaintiff-Appellant,
v.
CITY OF ALPHARETTA, GEORGIA, et al., Defendants-Appellees.
May 22, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-cv-252-JEC), Julie E. Carnes, Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior
District Judge.
BIRCH, Circuit Judge:
In this appeal, filed pursuant to the Americans with
Disabilities Act, 42 U.S.C. § 12101-12213, we must decide the
following issues of first impression in our circuit: (1) to what
extent is evidence of past accommodation of a disabled employee
determinative of an employer's ability to accommodate that employee
in the future; (2) are claims brought pursuant to Title II of the
ADA involving events that occurred prior to the effective date of
Title I actionable under the ADA or the Rehabilitation Act of 1973;
(3) can a plaintiff bypass the administrative procedures set forth
under the ADA by filing a civil rights action pursuant to 42 U.S.C.
§ 1983 alleging violations of the ADA? In addition, we must
resolve whether a public employee's filing of a state ante litem
claim can be construed as protected speech under the First
Amendment. The district court granted summary judgment in favor of
*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
the defendants on all claims. For the reasons that follow, we
affirm.
I. BACKGROUND
Plaintiff-appellant, William A. Holbrook, was employed as a
detective by the City of Alpharetta Police Department at the time
the events giving rise to this action occurred. In November, 1987,
Holbrook sustained injuries following an accident. As a result of
complications arising from the accident coupled with visual
problems caused by diabetes, Holbrook experienced retinal
detachment in both eyes. Holbrook subsequently underwent eye
surgery that restored partial vision to his left eye; he remained
without visual function in his right eye. Although Holbrook was
unable to work for approximately ten months following the accident,
he continued to receive a full salary and benefits from the police
department during this period.
Holbrook had worked as a narcotics detective prior to the
accident. After his return to work, Holbrook was unable to drive
a car and was assigned detective work that primarily could be
handled within the office. On occasion, Holbrook also accompanied
other detectives to crime scenes to conduct investigations and
remained "on call" for evening duty. Holbrook generally required
transportation to a crime scene during routine and "on call" duty.
During the period immediately following Holbrook's return to work,
the Chief of Police of the Alpharetta Police Department was Larry
Abernathy. In September, 1991, E.L. Waters replaced Abernathy in
this capacity and began to modify Holbrook's duties as a detective.
At Waters' direction, Holbrook no longer maintained "on call"
status and was limited to duties that could be performed largely
within the office setting. In addition, Sergeant Mulvihill was
hired as a supervisor of the detective division and substantially
reduced Holbrook's case assignments. Holbrook's job title, wages,
and benefits remained the same.
During both Abernathy and Water's respective tenures as police
chief, Holbrook applied for promotions to supervisory-level status.
Holbrook's initial requests were rejected because there were no
openings for supervisor positions. Waters, however, eventually
hired Mulvihill as a sergeant in charge of the criminal
investigation division in which Holbrook worked. This position had
not been posted or advertised.
In December, 1991, Holbrook filed an ante litem claim for
damages pursuant to O.C.G.A. § 36-33-5 against the City of
Alpharetta for discriminatory conduct. On January 30, 1992,
Holbrook filed the instant lawsuit in federal court alleging
violations of Title II of the Americans with Disabilities Act of
1990 ("ADA"), Section 504 of the Rehabilitation Act, the Georgia
Equal Employment for the Handicapped Act, and 42 U.S.C. § 1983.
The district court granted summary judgment in favor of the City of
Alpharetta and the remaining defendants on all claims excepting
Holbrook's cause of action under the Rehabilitation Act. Holbrook
subsequently amended his complaint, adding claims brought pursuant
to Title I of the ADA along with new section 1983 and state law
claims. The district court granted summary judgment in favor of
the defendants with respect to all remaining claims.
II. DISCUSSION
We review de novo the district court's order granting summary
judgment. See Earley v. Champion Int'l. Corp., 907 F.2d 1077, 1080
(11th Cir.1990). Summary judgment is appropriate where there is no
genuine issue of material fact. Fed.R.Civ.P. 56(c). Where the
record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation
omitted). On a motion for summary judgment, we must review the
record, and all its inferences, in the light most favorable to the
nonmoving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).1
A. Title I of the ADA and Section 504 of the Rehabilitation Act
Title I of the ADA provides that no covered employer shall
discriminate against "a qualified individual with a disability
because of the disability of such individual" in any of the "terms,
conditions, [or] privileges of employment." 42 U.S.C. § 12112(a).
The ADA imposes upon employers the duty to provide reasonable
accommodations for known disabilities unless doing so would result
in undue hardship to the employer. 42 U.S.C. § 12112(b)(5)(A);
Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). In
order to establish a prima facie case of discrimination in
1
Holbrook challenges the district court's order granting
summary judgment in favor of the City of Alpharetta on his claims
of constructive discharge under both the ADA and the
Rehabilitation Act as well as state law claims of negligent
supervision and intentional infliction of emotional distress. We
find Holbrook's enumerations of error with respect to these
causes of action to be without merit and affirm for the reasons
stated in the district court's opinion.
violation of the ADA, the plaintiff must prove that (1) he has a
disability; (2) he is a qualified individual; and (3) he was
subjected to unlawful discrimination because of his disability.
Id. A "qualified individual with a disability" is an "individual
with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that
2
such individual holds or desires." 42 U.S.C. § 12111(8). The
plaintiff retains at all times the burden of persuading the jury
that reasonable accommodations were available. Moses v. American
Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.1996). The employer,
on the other hand, has the burden of persuasion on whether an
accommodation would impose an undue hardship. Monette v.
Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996).
Holbrook contends that the City of Alpharetta Police
Department discriminated against him on the basis of his disability
by continually refusing to assign him the full duties of a police
detective and accommodate him as required by the statute. Holbrook
further avers that these actions constituted constructive discharge
and forced him effectively to terminate his employment with the
police department. The City of Alpharetta responds that Holbrook
was not a "qualified individual" within the meaning of the ADA
because he was unable to perform essential functions of his job
2
The Rehabilitation Act, 29 U.S.C. § 791-796(1), provides,
in pertinent part, that "[t]he standards used to determine
whether this section has been violated in a complaint alleging
[nonaffirmative action] employment discrimination under this
section shall be the standards applied under title I of the
Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et
seq.)." 29 U.S.C. § 794(d). Our analysis of Holbrook's claims
brought pursuant to Title I of the ADA thus apply with equal
force to his claims under the Rehabilitation Act.
with or without reasonable accommodations.
The ADA provides that in determining what functions of a given
job are deemed to be essential, "consideration shall be given to
the employer's judgment ... and if an employer has prepared a
written description before advertising or interviewing applicants
for the job, this description shall be considered evidence of the
essential functions of the job." 42 U.S.C. § 12111(8).
Regulations promulgated under the ADA further identify three
factors that can be considered pursuant to an inquiry regarding
whether a particular task is an essential part of a job: (1) the
reason the position exists is to perform the function; (2) there
are a limited number of employees available among whom the
performance of the job function can be distributed; and (3) the
function is highly specialized so that the incumbent in the
position was hired for his or her expertise or ability to perform
the particular function. 29 C.F.R. § 1630.2(n)(2)(i)-(iii).
Holbrook does not dispute that he is unable to perform two
functions of a police detective, driving an automobile and
collecting certain kinds of evidence at a crime scene. He argues,
however, that neither of these functions is essential to his job.
He further urges that even assuming we were to find these functions
to be essential in nature, he nonetheless can perform the necessary
tasks given his employer's reasonable accommodation of his
disability.3 Based on our independent review of the record and
3
Holbrook does not contend that he can drive an automobile
under any circumstances, but notes that his employer has
accommodated him in the past by allowing another officer to drive
Holbrook to locations outside the office when necessary.
deposition testimony, we conclude that Holbrook has not shown that
the functions he admittedly cannot perform are non-essential. It
is undisputed both that the collection of evidence is part of the
job description of a police detective in the City of Alpharetta and
that a Georgia driver's license is a requirement for the job. R5-
64, Exh. B, Att. 1. It is also undisputed that Holbrook cannot
perform independently a full-scale investigation of many types of
crime scenes and, unlike any other detective or police officer in
the Alpharetta Police Department, must be accompanied by a fellow
detective should the need for such an investigation arise.
Moreover, Holbrook acknowledges that the collection of evidence is
a specialized task requiring training.
Holbrook urges that the types of field work that he cannot
perform involve crimes that historically occur rarely in
Alpharetta. Although we do not doubt Holbrook's assertions
concerning the relatively low crime rate in Alpharetta, nor do we
dispute that a police department may be able to predict in general
terms what types of evidence will need to be collected at a given
crime scene, Holbrook has not shown—and, in our view, cannot
show—what types of criminal investigations an Alpharetta police
detective may be called upon to investigate in the future nor what
evidence it may be necessary to collect at that time. The record
indicates that it is not possible to anticipate, in every instance,
precisely what evidence will need to be collected and what duties
will need to be performed in any given investigation; more
importantly, notwithstanding the historical record, we can
speculate but not foretell with absolute certainty what crimes may
be committed in the City of Alpharetta in the future. Even
assuming that an Alpharetta police detective spends a relatively
small amount of time performing the type of field work that
Holbrook concedes he cannot undertake, the record establishes—and
Holbrook has not proven to the contrary—that the collection of all
evidence at the scene of a crime is an essential function of being
a police detective in the City of Alpharetta.
Holbrook further urges, however, that even were we to
determine that the on-site investigation of a crime scene is an
essential part of being a police detective, reasonable
accommodations nonetheless could have been made to facilitate his
effective performance of all aspects of his job. Holbrook points
to the undisputed fact that the police department took measures to
accommodate him in the past and that these measures arguably were
not unduly burdensome to the department. As previously noted, the
ADA defines a qualified individual as one who "with or without
reasonable accommodation, can perform the essential functions of
the employment position ...". 42 U.S.C. § 12111(8) (emphasis
added). Holbrook therefore was qualified for the position of
police detective with the City of Alpharetta Police Department if
he could perform those elements of his job we have found to be
essential—and that he concedes he cannot perform
unassisted—provided the proposed accommodation to his disability is
found to be reasonable. Significantly, what is reasonable for each
individual employer is a highly fact-specific inquiry that will
vary depending on the circumstances and necessities of each
employment situation. Federal regulations promulgated pursuant to
the ADA expressly note that
[a]n employer or other covered entity may restructure a job by
reallocating or redistributing non-essential, marginal job
functions ... An employer or other covered entity is not
required to reallocate essential functions. The essential
functions are by definition those that the individual who
holds the job would have to perform, with or without
accommodation, in order to be considered qualified for the
position.
29 C.F.R. Part 1630, Appendix at 344. See also Milton v. Scrivner,
Inc., 53 F.3d 1118, 1124 (10th Cir.1995) ("An employer is not
required by the ADA to reallocate job duties in order to change the
essential functions of a job."); Larkins v. CIBA Vision Corp., 858
F.Supp. 1572, 1583 (N.D.Ga.1994) ("[R]easonable accommodation does
not require an employer to eliminate essential functions of the
position.").
Holbrook contends that the department easily could have
accommodated him with a "minor shuffling of case assignments" as it
had for several years. We agree that the record unambiguously
reveals that the police department made certain adjustments to
accommodate Holbrook in the past. In addition, viewing the facts
in the light most favorable to Holbrook, we acknowledge that the
types of criminal investigations that Holbrook cannot perform alone
have occurred in the past with relative infrequency. As we have
discussed with respect to identifying the essential aspects of
being an Alpharetta police detective, however, the police
department cannot predict in advance what crimes will be committed
in any given week or what evidence will appear at any given crime
scene; indeed, being prepared to respond to unexpected events is,
in part, precisely what defines a police officer or detective. It
is undisputed that if the "unexpected" happened and more than one
rape or murder occurred simultaneously in Alpharetta, or if what
appeared to be a burglary turned out also to involve a homicide,
this minor "reshuffling" of case assignments proposed by Holbrook
necessarily would require the reallocation of an essential part of
his job.
Having concluded that the complete investigation of any crime
scene—including the collection of evidence—is an essential part of
Holbrook's job, we further hold that the City of Alpharetta was not
legally required, under the ADA, to accommodate Holbrook's
disability with respect to this function. In this case there
appears to be little doubt that, for quite some time and perhaps
with relatively minor disruption or inconvenience, the City of
Alpharetta was able to accommodate Holbrook with respect to those
essential functions he concedes he cannot perform without
assistance. It is equally apparent, however, that the City of
Alpharetta's previous accommodation may have exceeded that which
the law requires. We do not seek to discourage other employers
from undertaking the kinds of accommodations of a disabled employee
as those performed by the City of Alpharetta in Holbrook's case;
indeed, it seems likely that the City retained a productive and
highly competent employee based partly on its willingness to make
such accommodations. However, we cannot say that the City's
decision to cease making those accommodations that pertained to the
essential functions of Holbrook's job was violative of the ADA. 4
4
It is critical to note that our conclusion is mediated by
the facts presented in this case. Our decision is informed by
several specific factors, including the unique nature of police
work, the particular realities of a small police department in
which each of three detectives is expected to be able to respond
The district court properly granted summary judgment on Holbrook's
Title I ADA and Rehabilitation Act claims.
B. Title II of the ADA
In his original complaint, Holbrook set forth allegations of
discrimination on the basis of his disability pursuant to Title II
of the ADA, applicable to the services, programs, or activities of
state and local governments. The district court dismissed the
Title II claims after finding that Title II did not become
effective until July 26, 1992, several months after the events
alleged in the complaint occurred.
Title II of the ADA is entitled "Public Services" and
provides, in relevant part:
Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Federal regulations promulgated pursuant to the
ADA state:
(a) No qualified individual with a disability shall, on
the basis of disability, be subjected to discrimination in
employment under any service, program, or activity conducted
by a public entity.
(b)(1) For purposes of this part, the requirements of
title I of the Act, as established by the regulations of the
Equal Employment Opportunity Commission ..., apply to
employment in any service, program, or activity conducted by
a public entity if that public entity is also subject to the
jurisdiction of title I.
to any situation, and the types of accommodations proposed by
Holbrook. We do not imply that an employer invariably is
absolved from having to make reasonable accommodations for a
disabled employee whenever a given job involves any measure of
unpredictability, nor do we suggest that police departments in
general cannot be held strictly to the standards set forth in the
ADA.
(2) For purposes of this part, the requirements of
section 504 of the Rehabilitation Act of 1973, as established
by the regulations of the Department of Justice in 28 CFR part
41, as those requirements pertain to employment, apply to
employment in any service, program, or activity conducted by
a public entity if that public entity is not also subject to
the jurisdiction of title I.
28 C.F.R. § 35.140 (1996). The relevant Equal Employment
Opportunity Commission (EEOC) guide further states:
The Department of Justice regulations implementing Title II
provide that EEOC's Title I regulations will constitute the
employment nondiscrimination requirements for those state and
local governments covered by Title I (governments with 25 or
more employees after July 26, 1992; governments with 15 or
more employees after July 26, 1994). If a government is not
covered by Title I, or until it is covered, the Title II
employment nondiscrimination requirements will be those in the
Department of Justice coordination regulations applicable to
federally assisted programs under Section 504 of the
Rehabilitation Act of 1973, which prohibits discrimination on
the basis of disability by recipients of federal financial
assistance.
EEOC, A Technical Assistance Manual on the Employment Provisions
(Title I) of the Americans with Disabilities Act (1992) (emphasis
added).
Title II thus incorporates by reference the substantive,
detailed regulations prohibiting discrimination against disabled
individuals contained in Title I. Title I became effective on July
26, 1992. The above regulations suggest that the provisions of
Title II extending the protections afforded to employees in the
private sector under Title I to state and local government workers
became effective only when Title I went into effect. As explicitly
described in the EEOC manual, the Rehabilitation Act provided a
remedy for discrimination in public employment prior to the
effective date of Title I. We conclude that Title II of the ADA
did not become effective until the date on which Title I became
effective, July 26, 1992 and, prior to that date, a plaintiff's
remedy for discrimination under Title II of the ADA was the
Rehabilitation Act of 1973. Holbrook's Title II claims alleged in
his first complaint all involve events occurring before July 26,
1992. The district court correctly determined that Holbrook's
Title II claims, therefore, are properly analyzed under the
Rehabilitation Act.5
C. 42 U.S.C. § 1983
1. First Amendment
Holbrook contends that the discrimination initially inflicted
on him by the City of Alpharetta escalated after he filed a state
ante litem claim under O.C.G.A. § 36-33-5(b) for discrimination, a
prerequisite to bringing a legal action against the City. Holbrook
submits that the alleged retaliation violated his First Amendment
right and, thus, is actionable under 42 U.S.C. § 1983. The
district court found that the filing of an ante litem claim did not
constitute protected First Amendment activity. We agree with the
district court's resolution of this issue.
A state may not demote or discharge a public employee in
retaliation for protected speech. Bryson v. City of Waycross, 888
F.2d 1562, 1565 (11th Cir.1989) (citing Rankin v. McPherson, 483
U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). The question of
whether a public employee's speech is constitutionally protected
turns upon whether the speech relates to matters of public concern
or to matters of merely personal interest to the employee. Ferrara
5
Holbrook's Rehabilitation Act claims are discussed in
tandem with his Title I ADA claims in the previous section of
this opinion.
v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). "Whether an
employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement,
as revealed by the whole record." Connick v. Myers, 461 U.S. 138,
147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983).
Here, the record does not support Holbrook's assertion that
his ante litem notice alleging discrimination on the basis of his
disability was a matter of public concern. The notice solely
complains of Holbrook's personal grievance with respect to his
alleged treatment by the City of Alpharetta; it does not refer to
any practice or course of conduct by the police department against
disabled individuals beyond Holbrook and does not seek redress
beyond improving Holbrook's personal employment situation. See R5-
64, Exh. R. Although we recognize that a matter of concern to an
individual employee may intersect, at times, with a matter of
widespread public interest, "a public employee may not transform a
personal grievance into a matter of public concern by invoking a
supposed popular interest in the way public institutions are run."
Ferrara, 781 F.2d at 1516. We conclude that Holbrook's ante litem
notice against the City of Alpharetta does not constitute speech
protected by the First Amendment.6 The district court did not err
in granting summary judgment on this claim.
6
It is important to note that our decision with respect to
Holbrook's ante litem notice is limited to the facts of this case
and does not preclude a legal determination, given a different
set of circumstances, that an individual anti-discrimination
grievance could also be a matter of public concern giving rise to
First Amendment protection. Again, in this case the allegations
expressed in the notice pertain solely to Holbrook and do not
implicate, in broader terms, the City of Alpharetta's treatment
of disabled people, as Holbrook suggests.
2. ADA and Rehabilitation Act
Holbrook also contends that the City of Alpharetta's
discriminatory conduct is actionable under section 1983 as a
violation of the ADA and the Rehabilitation Act. The City of
Alpharetta responds that section 1983 is not available as a remedy
to address a violation of the ADA or the Rehabilitation Act because
both statutes create comprehensive internal enforcement mechanisms.
No circuit court has had occasion to resolve whether state
and local employees who allege a violation of the ADA may bring an
action under section 1983 in lieu of or in addition to an action
under either of these statutes. As a general proposition,
plaintiffs may bring a cause of action pursuant to section 1983 to
remedy violations of both the federal constitution and federal
statutes. Maine v. Thiboutot, 448 U.S. 1, 5, 100 S.Ct. 2502, 2504-
05, 65 L.Ed.2d 555 (1980). The Supreme Court has held that a
plaintiff alleging a violation of a federal statute will be
permitted to sue under section 1983 unless " "(1) the statute does
not create enforceable rights, privileges, or immunities within the
meaning of § 1983,' or (2) "Congress has foreclosed such
enforcement of the statute in the enactment itself.' " Wilder v.
Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S.Ct. 2510, 2517, 110
L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment and
Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781
(1987)).
District courts in our circuit have reached contrary
conclusions with regard to the question of whether section 504 of
the Rehabilitation Act creates an enforceable right—or, conversely,
forecloses enforcement—pursuant to section 1983. In Bodiford v.
Alabama, 854 F.Supp. 886 (M.D.Ala.1994), for instance, the district
court held that the defendants had failed to demonstrate that
Congress explicitly intended to preclude access to section 1983 for
a claim based on the alleged violation of the Rehabilitation Act.
The court thus found that a section 1983 "laws" claim could be
based on the Rehabilitation Act. See id. at 893. In Veal v.
Memorial Hospital, 894 F.Supp. 448 (M.D.Ga.1995), however, the
court arrived at the opposite determination and found that "the
remedial scheme created by § 504 of the Rehabilitation Act ...
communicates the intention of Congress to preclude § 1983 actions."
Id. at 454. In reaching this conclusion, the court adopted the
reasoning of another district court:
Section 504 of the Rehabilitation Act and Title I of the ADA
contain simple and broad prohibitions of discrimination on the
basis of handicap or disability. It is clear that plaintiff's
allegations fall within the scope of both § 504 and Title I of
the ADA, and that plaintiff's claims under § 1983 are based
upon the same alleged injuries as are plaintiff's § 504 and
ADA claims. It does not appear that plaintiff's § 1983 claims
add anything to plaintiff's substantive rights under either
statute, other than possibly circumventing these statutes'
administrative procedures and going directly to federal court.
In light of the broad remedial scope of § 504 of the
Rehabilitation Act and Title I of the ADA [and] their clear
applicability to the alleged injuries in this case, ... the
court concludes that Congress did not intend to permit § 1983
claims based upon alleged injuries remediable under § 504 of
the Rehabilitation Act and Title I of the ADA.
Id. at 455 (quoting Holmes v. City of Chicago, 1995 WL 270231
(N.D.Ill.1995)).
We find the reasoning advanced by the district courts in both
Veal and Holmes to be persuasive in deciding the issue before us.
As noted by those courts, both the Rehabilitation Act and the ADA
provide extensive, comprehensive remedial frameworks that address
every aspect of Holbrook's claims under section 1983. To permit a
plaintiff to sue both under the substantive statutes that set forth
detailed administrative avenues of redress as well as section 1983
would be duplicative at best; in effect, such a holding would
provide the plaintiff with two bites at precisely the same apple.
We conclude that a plaintiff may not maintain a section 1983 action
in lieu of—or in addition to—a Rehabilitation Act or ADA cause of
action if the only alleged deprivation is of the employee's rights
created by the Rehabilitation Act and the ADA. See also Johnson v.
Ballard, 644 F.Supp. 333, 337 (N.D.Ga.1986) (where plaintiff
brought section 1983 claim for violation of Title VII, court
resolved that " "it would be anomalous to hold that when the only
unlawful employment practice consists of the violation of a right
created by Title VII, the plaintiff can bypass all of the
administrative processes of Title VII and go directly into court
under § 1983.' ") (quoting Day v. Wayne County Bd. of Auditors, 749
F.2d 1199, 1204 (6th Cir.1984)).
III. CONCLUSION
In this case, Holbrook argues that the City of Alpharetta and
all other named defendants discriminated against him on the basis
of his disability by reducing his assignments as a police
detective, failing to promote him, and constructively discharging
him. The district court granted summary judgment in favor of the
defendants on all counts of the complaint. We conclude that the
district court correctly found at summary judgment that the City of
Alpharetta could not reasonably accommodate Holbrook under Title I
of the ADA and the Rehabilitation Act. We further conclude that
(1) Holbrook's Title II claims properly must be analyzed under the
Rehabilitation Act, (2) Holbrook's state ante litem notice did not
constitute protected speech under the First Amendment, and (3)
Holbrook may not bring a cause of action under 42 U.S.C. § 1983
solely for alleged violations of the ADA and the Rehabilitation
Act. We therefore AFFIRM.
|
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612 F.2d 570
Explosives Corp. of Americav.Garlam Enterprises Corp.
No. 79-1631
United States Court of Appeals, First Circuit
12/10/79
1
D.P.R.
DISMISSED
|
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400 B.R. 497 (2008)
In re Richard CARROLL, Jr., and Linda L. Carroll, Debtors.
Richard Carroll, Jr., and Helen M. Morris, Trustee, Plaintiffs,
v.
Fia Card Services, and Creditors Interchange Receivable Management, LLC, Defendants.
Bankruptcy No. 07-363. Adversary No. 07-110.
United States Bankruptcy Court, N.D. West Virginia.
December 22, 2008.
*498 Thomas E. McIntire, Thomas E. McIntire & Associates, L.C., Wheeling, WV, for Debtors/Plaintiffs.
Nicole L. Janes, William T. Holmes, Spilman Thomas & Battle, Morgantown, WV, Daniel T. Booth, Booth & McCarthy, Bridgeport, WV, for Defendants.
MEMORANDUM OPINION
PATRICK M. FLATLEY, Bankruptcy Judge.
Richard Carroll, Jr. (the "Debtor"), and Helen M. Morris, the Debtor's Chapter 13 trustee (the "Trustee"), seek to recover damages against FIA Card Services ("FIA") and its debt collector, Creditors Interchange Receivable Management, *499 LLC ("CRIM"), for engaging in alleged illegal debt collection practices.
CRIM seeks to dismiss the adversary complaint filed against it on three grounds: (1) it received insufficient service of process, (2) the causes of action alleged against it are beyond the applicable statutes of limitation, and (3) the Debtor cannot state a claim against it under the law of agency.
For the reasons stated herein, the court will grant in part, and deny in part, CRIM's motion to dismiss.
I. STANDARD OF REVIEW
When adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b)(5), Fed. R. Bankr.P. 7012(b), for insufficient service of process, the court is determining if the method of serving process on the defendant was sufficient. In making this determination, the court "`must look to matters outside the complaint' to determine what steps, if any, the plaintiff took to effect service." C3 Media & Mktg. Group, LLC v. Firstgate Internet, Inc., 419 F.Supp.2d 419, 427 (S.D.N.Y.2005) (citation omitted).
When adjudicating a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6), a court must accept as true all of the factual allegations in the complaint as well as the reasonable inferences that can be drawn from them, and a court may dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999) (stating that the court may grant a motion to dismiss only if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief."). Overcoming grounds for relief under Rule 12(b)(6) requires the pleader to provide more than "mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). The factual allegations in the complaint "must be enough to raise a right of relief above the speculative level," and must be enough "to raise a reasonable expectation" of liability, "even if it strikes the savvy judge that actual proof of those facts is improbable, and `that a recovery is very remote and unlikely'" Id.
II. BACKGROUND
As alleged in the Amended Complaint, the Debtor had a delinquent credit account with FIA, a successor institution to Bank of America, N.A. On January 2, 2007, the Debtor's attorney sent correspondence to Bank of America requesting validation of the debt, and advising it to cease all telephone calls and correspondence to the Debtor. Bank of America received that correspondence on January 3, 2007.
Thereafter, from January 5, 2007 to March 16, 2007, the Debtor received about 21 debt collection telephone calls. The Debtor received one telephone call at his place of employment, and up to three telephone calls in a single day. On March 26, 2007, the Debtor filed his Chapter 13 bankruptcy petition. On November 5, 2007, the Debtor filed this adversary proceeding against FIA. In answering the complaint, FIA did not deny making one telephone call to the Debtor on January 15, 2007, but it denied any other contacts.
When the Debtor learned that CRIM, a third party collection agency, had made the remainder of the alleged collection calls, the Debtor filed an amended complaint on July 23, 2008, and served the summons by certified mail on: Creditor *500 Interchange Receivable Management c/o Sean Cook, The Tenny Law Firm, 707 Virginia Street EastChase Tower, 14th Floor, P.O. Box 3722, Charleston, WV, XXXXX-XXXX. The Debtor obtained this address from the West Virginia Secretary of State's website.
As asserted by the Debtor, the address it used for the service of process was correct as of July 10, 2008, but on July 11, 2008, CRIM had changed its address for the service of process to: CT Corporation System, 707 Virginia Street East, Charleston, WV 25301.
III. DISCUSSION
For the reasons stated below, the court finds that the Debtor's service of the summons on CRIM is insufficient, and, therefore, CRIM is not yet a proper party to this lawsuit. However, because the defect in the service of process is easily curable, and because the court desires to save the parties the time and expense of relitigating the same issues after proper service is effected, the court will address CRIM's statute of limitations defense and its argument that the Debtor has failed to state a claim upon which relief can be granted based on the law of agency.
A. Insufficient Service of Process
The Debtor does not contest that he served CRIM at the wrong address for the service of process. The Debtor contends, however, that CRIM accepted service, it has actual knowledge of the complaint, and the defect is one that can be easily remedied by reissuing the summons on CRIM.
Under Fed. R. Bankr.P. 7004(b)(3), a plaintiff may effect service on a domestic corporation by "mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment of by law to receive service of process...." Here, the Debtor not only served process on the wrong address, he did not name an officer, a managing or general agent, or an agent authorized by the appointment of law to receive service of process. Therefore, service is insufficient. See generally Dave Braddley, Are You Paying "Attention" When Serving Contested Matters under Bankruptcy Rule 7004(b)(3)? 24-2 Am. Bankr.Inst. J. 46 (March 2005) (discussing service of process requirements in bankruptcy proceedings for corporations).
Service of process is the means by which a court obtains personal jurisdiction over a defendant. Fed.R.Civ.P. 4(k); see also Fed. R. Bankr.P. 7004(f) ("[S]erving a summons ... in accordance with this rule... is effective to establish personal jurisdiction over the person of any defendant...."). Without compliance, no personal jurisdiction exists over the defendant. Id.
The Court of Appeals for the Fourth Circuit has applied the requirements of Rule 4 liberally, at least when the defendant has actual notice of the lawsuit, and has allowed the assertion of personal jurisdiction over defendants even when a defect in the service of process exists. For example, in Karlsson v. Rabinowitz, 318 F.2d 666, 667 (4th Cir.1963), the court approved of service made on the defendant's former domicile in Maryland after he had moved to Arizona, but before his spouse had left Maryland. The court stated that "where actual notice of the commencement of the action and the duty to defend has been received by the one served, the provisions of Rule 4[ ] should be liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the merits." Id. at 668. In another case, Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir.1983), the court stated that *501 the proper remedy when service of process is insufficient is for the trial court to quash service, and to give the plaintiff a "reasonable opportunity to attempt to effect valid service of process." See also Bailey v. Boilermakers Local 667, 480 F.Supp. 274, 278 (N.D.W.Va.1979) ("If the first service of process is ineffective, a motion to dismiss should not be granted, but rather the Court should treat the motion in the alternative, as one to quash the service of process and the case should be retained on the docket pending effective service.").
Following the guidance of the Fourth Circuit in Vorhees, the court will not dismiss CRIM from this case, but will allow the Debtor 45 days from entry of the accompanying order to effect service of process on CRIM in accordance with Fed. R. Bankr.P. 7004(b)(3).
B. Statute of Limitations
CRIM asserts that it was not added as a putative defendant in this case until July 28, 2008. Arguing that all the Debtor's asserted causes of action arose no later than March 16, 2007, and are subject to one-year statutes of limitation, CRIM asserts that the claims against it must be dismissed as time-barred.
Even assuming that CRIM's assertion that all the Debtor's claims against it are subject to one-year statutes of limitation, the Debtor's claims are nevertheless timely. Importantly, the Debtor filed his bankruptcy petition on March 26, 2007. Section 108 of the Bankruptcy Code allows pre-petition causes of action to be brought within two years of the bankruptcy filing:
(a) If applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) two years after the order for relief.
11 U.S.C. § 108(a).
Here, the Trustee is a named party plaintiff. Accordingly, the Trustee has at least until two years after the Debtor's bankruptcy filinguntil March 26, 2009 to assert the Debtor's causes of action against CRIM. See, e.g., Cantor v. Perelman, 414 F.3d 430, 440 (3d Cir.2005) (allowing the debtor/trustee to assert a cause of action based on § 108(a) that would otherwise be time barred under nonbankruptcy law). The Debtor's insufficient service of process on CRIM was July 23, 2008. The Debtor still has plenty of time to effect proper service before the statutes of limitation would prohibit his claims.
C. Imputed Knowledge of CRIM as Agent for FIA
CRIM states that it never received any correspondence from the Debtor's attorney regarding its debt collection efforts, and that, as an agent for FIA, it cannot be deemed to have imputed knowledge of correspondence that the Debtor sent to FIA, its principal.
CRIM's notice and/or knowledge of the Debtor's correspondence to FIA is important because the Debtor alleges that CRIM has violated two provisions of the Fair Debt Collection Practices Act and one provision of the West Virginia Consumer Protection Act based on its alleged debt collection contacts with the Debtor when the Debtor was represented by an attorney. Both Acts require that CRIM have notice and/or knowledge of the fact that the Debtor was represented by an attorney and of the Debtor's request that all *502 further debt collection contacts should be through his attorney. 15 U.S.C. §§ 1692c(a)(2) ("[A] debt collector may not communicate with a consumer in connection with the collection of any debt ... (2) if the debt collector knows the consumer is represented by an attorney ...."); 1692c(c) ("If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt ...."); W. Va.Code § 46A-2-128(e) (prohibiting a debt collector from communicating "with a consumer whenever it appears that the consumer is represented by an attorney ....").
In general, "[n]otice of facts that a principal knows or has reason to know is not imputed downward to an agent." Restatement (Third) Agency § 5.03 cmt. g(2006). This means that an agent is legally protected from the consequences of facts made known to the principal:
[A]n agent who deals with third parties on the principal's behalf is not treated as knowing facts known by the principal that the agent does not know or have reason to know. This protects the agent from the legal consequences of facts that only the principal knows or has reason to know. A principal may be subject to liability to a third party if the principal withholds relevant information from an agent, knowing that the agent will materially misstate facts to a third party as a result.
§ 5.03 cmt. g. See also Schmitt v. FMA Alliance, 398 F.3d 995, 997-98 (8th Cir. 2005) (refusing to impute the knowledge of the creditor/principal to the debt collector/agent because that "theory of implied knowledge contradicts established agency law, which dictates that while knowledge of the agent is imputed to the principal, the converse is not true."); Gorman v. Wolpoff & Abramson. LLP, 435 F.Supp.2d 1004, 1011 (N.D.Cal.2006) (same); Jones v. Weiss, 95 F.Supp.2d 105, 108-09 (N.D.N.Y. 2000) (same); Hubbard v. National Bond & Collection Assoc., Inc., 126 B.R. 422 (D.Del.) (same), aff'd 947 F.2d 935 (3d Cir.1991); Manzanares v. State Farm Fire and Cas. Co. (In re Manzanares), 345 B.R. 773, 792-93 (Bankr.S.D.Fla.2006) (same); In re Kramer, No. 04-2900, 2008 WL 5377695, *3-4, 2005 Bankr.LEXIS 337 at *9-10 (Bankr.N.D.Iowa Feb. 23, 2005) (same); Siharath v. Citifinancial Servs. (In re Siharath), 285 B.R. 299, 304-05 (Bankr.D.Minn.2002) (same); Faust v. Texaco (In re Faust), 270 B.R. 310, 316 (Bankr.M.D.Ga.1998) (same).[1]
Accordingly, based on the facts alleged in the amended complaint, CRIM had no knowledge of the correspondence from the Debtor's attorney asking that there be no further contact with the Debtor respecting the collection of the debt he owed to FIA. Therefore, the court will allow the Debtor 30 days to file a second amended complaint that alleges that CRIM had knowledge that the Debtor was represented by an attorney when it communicated with the Debtor in an attempt to collect a debt, and knowledge of the Debtor's request that all further debt collection contacts be through his attorney. In the absence of a timely *503 filed second amended complaint, the court will dismiss the Debtor's claims that CRIM violated 15 U.S.C. §§ 1692c(a)(2), 1692c(c), and W. Va.Code § 46A-2-128(e).
D. Remaining Claims Against CRIM
The Debtor alleges CRIM made debt collection calls to his employer, in violation 15 U.S.C. § 1692c(a)(3), which prohibits communication with a consumer "at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication." Likewise, the Debtor contends that the number of telephone collection calls made by CRIM constitutes an "intent to annoy, abuse, or harass" the Debtor in violation of § 1692d(5). The Debtor also asserts violations of corresponding State law. W. Va.Code §§ 46A-2-125(d), 46A-6-104.
Other than arguing that these causes of action are barred by the statute of limitationsa defense that the court has already rejectedCRIM has not sought a dismissal of these alleged statutory violations.
IV. CONCLUSION
The court will grant the Debtor 45 days to effect service of process on CRIM at its registered address. The court will grant CRIM's motion to dismiss its alleged violations of 15 U.S.C. §§ 1692c(a)(2), 1692c(c), and W. Va.Code § 46A-2-128(e) unless the Debtor, within 30 days, files a second amended complaint alleging that CRIM had knowledge, separate from its principal, that the Debtor was represented by an attorney when it communicated with the Debtor in an attempt to collect a debt, and knowledge of the Debtor's request that all further debt collection contacts should be made through his attorney. The court will deny CRIM's motion to dismiss to the extent that the Debtor has asserted that it violated 15 U.S.C. §§ 1692c(a)(3), 1692d(5), W. Va.Code §§ 46A-2-125(d), and 46A-6-104. A separate order will be entered pursuant to Fed. R. Bankr.P. 9021.
NOTES
[1] In Powers v. Prof'l Credit Servs., 107 F.Supp.2d 166, 169 (N.D.N.Y.2000), the district court concluded that knowledge to a creditor/principal could be imputed to its debt collector agent on the grounds that a different result would "utterly eviscerate the protections afforded debtors by the FDCPA." Like the Eighth Circuit in Schmitt, 398 F.3d at 998, this court declines to follow Powers and thereby create a special exception to general agency law.
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976 F.2d 725
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James E. CLIFTON, Plaintiff-Appellant,v.VIRGINIA DEPARTMENT OF CORRECTIONS; David Williams, SheriffFaust; Attorney General of the Commonwealth ofVirginia, Defendants-Appellees.
No. 92-6489.
United States Court of Appeals,Fourth Circuit.
Submitted: July 22, 1992Decided: September 30, 1992
James E. Clifton, Appellant Pro Se.
Before HALL, NIEMEYER, and WILLIAMS, Circuit Judges.
PER CURIAM:
OPINION
1
An undated notice of appeal in this case was received in the district court. The court inadvertently failed to docket the notice. Under Houston v. Lack, 487 U.S. 266 (1988), the notice is considered filed as of the date Appellant delivered it to prison officials for forwarding to the court. The record does not reveal when Appellant delivered the notice of appeal for mailing to the court. Accordingly, we grant a certificate of probable cause and remand the case for the district court to obtain this information from the parties and determine the timeliness of the filing under Houston v. Lack. The record, as supplemented, will then be returned to this Court for further consideration.
REMANDED
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Opinion issued December 9, 2010
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00169-CV
———————————
UL, INC., d/b/a URBAN LIVING AND GEORGE SILASKI, Appellants
V.
JOSE L.
PRUNEDA, Appellee
On Appeal from the 164th District
Court
Harris County, Texas
Trial Court Case No. 2007-29388
MEMORANDUM OPINION
This appeal involves a suit brought by
real estate agent, Jose L. Pruneda, to recover commissions from appellants, UL,
Inc., d/b/a Urban Living and George Silaski arising from the sale of two pieces
of real property. The trial court
rendered summary judgment for monetary damages and attorney’s fees in favor of Pruneda
against Urban Living and Silaski.
On appeal, Urban Living and Silaski present
six issues challenging the summary judgment.
Among their challenges, appellants assert that the trial court lacked
subject-matter jurisdiction, contend that a number of affirmative defenses
barred Pruneda’s recovery of damages, claim that Pruneda did not carry his summary
judgment burden, and dispute the award of attorney’s fees.
We affirm in part, reverse in part,
and remand the case to the trial court.
Factual
& Procedural Background
Jose
Pruneda worked as a real estate agent for UL, Inc., d/b/a Urban Living, a real
estate company. In 2005, Pruneda
procured real estate contracts for two separate properties. The first contract was for the sale of real
property located at 3201 Moxroy. Pruneda
acted as the intermediary agent between the seller and the buyer.
Urban Living’s employee handbook
provided that commissions earned by its associates on property transactions
“will be split with 60% going to [Urban Living] and 40% going to the associate.” The sales price for the Moxroy property was $1,106,786.
The registration agreement for the
Maxroy property identifies Pruneda as the agent and www.Urban, Inc. as the
broker for the sale. Appellant, George
Silaski, is a licensed broker and an officer of www.Urban, Inc., which holds a
corporate broker’s license.
With regard to the second real estate contract,
Pruneda acted as the buyer’s agent for the purchase of property located at 1114
Bomar. The sales price for the Bomar property
was $203,000. Pruneda signed the sales
contract for the property as the buyer’s agent.
The contract identified www.Urban, Inc. as the buyer’s broker.
Later in 2005, Vinod Ramani, president
and CEO of Urban Living, sent two invoices, each signed by him, to the title
company that would be conducting the closings on the two properties. The invoices indicate that Pruneda’s share of
the sales commission on the Moxroy property was $26,518 and that his share on
the Bomar property was $2,756.
On January 2, 2006, Pruneda terminated
his association with Urban Living. The
closing on the Bomar property occurred on January 15, 2006, and the closing on
the Maxroy property occurred on January 17, 2006.
Ramani and Silaski took the position
that, because Pruneda had terminated his association with Urban Living before
the closings on the properties, he was no longer entitled to his share of commissions
on the sales. As support, they relied on
a provision in Urban Living’s employee handbook, which provides, in part, “When
leaving [Urban Living], ALL listings will remain with [Urban Living] and any
commissions paid from the sale of such listings will belong solely to [Urban
Living].” Ramani and Silaski notified
the title company handling the closings that Pruneda should not share in the commissions
for either property. Pruneda received no
commissions from either property sale.
On May 4, 2006, Pruneda filed a wage claim
with the Texas Workforce Commission (TWC).
Pruneda alleged that Urban Living had failed to pay him $29,274 in
commissions, including $26,518 for the Moxroy property sale and $2,756 for the
Bomar sale. In a preliminary-wage
determination order issued by TWC on June 21, 2006, Urban Living was ordered to
pay the full $29,274 in commissions sought by Pruneda. Urban Living timely appealed the preliminary
determination to TWC’s Wage Claim Tribunal.
The tribunal conducted two hearings on Urban Living’s appeal.
On January 26, 2007, the tribunal
issued its written decision rescinding the preliminary-wage order and dismissing
Pruneda’s wage claim on the merits. In
support of its decision, the tribunal relied on the provision in Urban Living’s
handbook providing, “When leaving [Urban Living], ALL listings will remain with
[Urban Living] and any commissions paid from the sale of such listings will
belong solely to the [Urban Living].” The
tribunal noted that the two property sales at issue closed after Pruneda resigned
from Urban Living.
On February 21, 2007, Pruneda timely appealed
the tribunal’s decision dismissing his wage claim. TWC affirmed the wage tribunal’s decision on
April 16, 2007. In so doing, TWC adopted
the tribunal’s findings of fact and conclusions of law. TWC notified the parties that the decision became
final 14 days after its issuance, unless TWC reopened the appeal or one of the
parties filed a motion for rehearing. TWC’s notice also informed the parties
that an appeal of the decision could be made by filing a suit. TWC informed the parties that suit for judicial
review must be filed no later than 30 days after TWC mailed its decision
affirming the dismissal of Pruneda’s wage claim.
Twenty-five days after the final TWC
decision, Pruneda timely filed suit in district court on May 11, 2007. Pruneda named Urban Living, Silaski, and TWC
as defendants. In his original petition,
Pruneda sought “trial de novo review” of TWC’s April 16, 2007 decision. He alleged that Urban Living and Silaski had
agreed that he would receive forty percent of all net commissions from the two
property transactions. Pruneda pointed
out that he was the agent when the sales contracts for each property were signed. Pruneda averred that TWC “failed to
understand that once a binding agreement between a buyer and seller is signed,
the fees are earned.” He asserted that
TWC “erroneously interpreted the status of the transaction even though there
was a binding agreement for sale, which meant that fees were earned at the time
of the property transaction between Buyer and Seller.”
Pruneda also asserted common law
claims of breach of contract and quantum meruit against Urban Living and
Silaski. He sought to recover $29,274 in
commissions and also to recover attorney’s fees.
On May 30, 2008, Pruneda filed a
motion for leave to reopen the TWC proceedings to present additional evidence
in the trial court. Pruneda alleged that
the TWC wage tribunal never heard evidence at its hearings regarding the
provision in Urban Living’s employee handbook, which the tribunal cited as a
basis for dismissing Pruneda’s wage claim.
The trial court granted Pruneda’s
motion to reopen on July 3, 2008. The
court’s order provided that the TWC proceedings were reopened. The court remanded Pruneda’s wage claim to
TWC for the presentation of additional evidence. Although not requested by Pruneda in his
motion, the trial court also ordered “[t]hat the Texas Workforce Commission
decision is hereby set aside,” effectively vacating the TWC decision.
On August 6, 2008, Pruneda filed a
notice of nonsuit in the trial court with regard to his claims against
TWC. In the notice, Pruneda explained
that he was filing the nonsuit because the trial court had set aside the TWC
decision. The notice also indicates that
Pruneda had withdrawn his wage claim with TWC.
He stated that he was acting in reliance on representations by TWC that
his withdrawal of his wage claim “has the same effect as if the wage claim had
never been brought” by him.
Also on August 6, 2008, appellant
filed an amended petition. Urban Living
and Silaski were the only named defendants.
TWC was no longer a defendant, and there was no challenge to the
then-vacated TWC decision. Pruneda also added
a claim for money had and received against Urban Living and Silaski.
Pruneda filed a motion for summary
judgment on August 8, 2008. Pruneda
asserted that he was entitled to judgment as a matter of law against Urban
Living and Silaski on his breach of contract and money had and received
claims. Pruneda sought damages for $29,274,
representing his share of the commissions that he had earned when he procured
the sales contracts on the Moxroy and Bomar properties. He also sought attorney’s
fees.
As summary judgment evidence, Pruneda
offered his own affidavit in which he testified,
At the time of each of the
real estate transactions made the basis of this suit, I worked as a licensed
real estate agent in the State of Texas on behalf of real estate broker, George
Silaski, and real estate company, [Urban Living].
I
expended valuable time, effort and expense on behalf of Defendants. Defendants Urban Living and George Silaski
accepted the benefit of my services as a licensed real estate agent. The real estate commissions I was to be paid
are evidenced by writings signed by Vinod Ramani, President of Urban Living,
who was authorized to sign the documents on behalf of real estate broker, George
Silaski, and real estate company, Urban Living.
The writings were delivered to each respective title company. The commissions were to be paid directly to
me. Subsequently, Defendants wrongfully
instructed the title companies not to pay me and to direct all payments to
Urban Living.
I
have never received the commissions I earned with respect to these
transactions. Further, I have never
received my payment or consideration in any form for my work on these real
estate transactions.
. . .
Defendants
have conspired, pursued, and continued to pursue, a flagrant course of misrepresentation
in an effort to withhold my commissions. To that end, the procedure was in place for me
to receive my commissions after they were earned. George Silaski as broker and Vinod Ramani,
President of Urban Living, took advantage of their unique control to misdirect
my commissions. Thereafter, they have
made false statements to the Texas Workforce Commission and engaged in an
overall pattern of misrepresentations designed to deny me my property at all
costs. Defendants’ conduct indicates
untrustworthiness and fails to uphold the ethics required by the Texas Real
Estate Commission. Further, the Defendants
conspired by concerted action to effectuate all wrongful actions, further
stated herein, that resulted in damages.
I
provided valuable services which Defendants accepted. Defendants knew that I
expected to be compensated for these services, but failed to compensate me. I seek actual damages of $29,274.00 for the
commissions wrongfully denied to me by Defendants.
To his affidavit, Pruneda attached the
two invoices that Ramani had signed and sent to the title company. Pruneda pointed out that the invoices reflect
the amount of real estate commissions he was entitled to receive for his services
in connection with the property sale identified in each invoice.
Pruneda also attached to his affidavit
a letter from the title company that conducted the closing on the Moxroy
property. The letter is dated February
14, 2006 and is addressed to Ramani and Silaski. The letter reads, “With reference to the
above subject property, enclosed is a copy of the Settlement Statement and our
check no. 137904 in the amount of $66,407.16 representing 100% payment of the
commission per your letter dated January 12, 2006.” Pruneda also offered a copy of the referenced
check. The check was made payable to
Urban Living and noted “Attn: George Silaski.”
Pruneda explained in his affidavit that the $66,407.16 paid by the title
company was 100 percent of the commissions for the Moxroy property. He averred that this amount included the 40
percent of the commissions that he was entitled to receive for his services as the
intermediary agent on the property sale.
As summary judgment evidence, Pruneda also
attached several documents relating to the two real estate transactions. These documents include the broker
registration agreement for the Moxroy sale and the sales contract for the Bomar
transaction.
To support his attorney’s fees
request, Pruneda filed his attorney’s affidavit with his motion for summary
judgment. Pruneda’s counsel testified in
his affidavit that Pruneda would incur $17,243.72 in pursuing his claims in the
trial court.
Urban Living and Silaski (hereafter, collectively
“appellants”) filed a response to Pruneda’s motion for summary judgment. They asserted that Pruneda “has failed to
provide this Court with evidence that there is an enforceable contract between
himself and Defendants regarding commissions to be paid to him for the transactions
at issue in this lawsuit.”
In response to the motion for summary
judgment, Urban Living and Silaski also pointed to the policy in Urban Living’s
employee handbook providing, “When leaving [Urban Living], ALL listings will
remain with [Urban Living] and any commissions paid from the sale of such
listings will belong solely to the [Urban Living].” Appellants appended the provision of the
employee handbook to their response.
In addition, appellants offered
Ramani’s affidavit. Ramani explained
that Pruneda had voluntarily resigned his employment with Urban Living on
January 2, 2006 and that the closings on the two properties for which Pruneda
sought commissions occurred after his resignation. Ramani averred,
It is our company policy that any person holding any
sales position, either as an employee or an independent contractor, is not
entitled to real estate commissions once such person leaves the company—unless
there is a separate agreement signed by myself and said person entitling the
same to commissions. Plaintiff Pruneda
and I did not enter into any such agreement.
Each
person either employed as an independent contractor or an employee of [Urban
Living] is given the Handbook at the onset of his/her employment. Plaintiff was
given the aforementioned Handbook at the onset of his employment and is aware
he is not entitled to commissions unless he remains with our Company. . . . Attached
as Exhibit B is a true and correct copy of our [Urban Living’s] handbook and is
hereby incorporated by this reference. Specifically, Page 16 of the Urban
Living handbook states that all listings remain with the Company. Further, any commissions paid from the sale of
such listings belong to the Company if said employee/independent contractor leaves
before the closing.
Appellants also attached Silaski’s
affidavit to their response. In his
affidavit, Silaski indicated that, although he is a licensed broker, he did not
act as Pruneda’s sponsoring broker with respect to the two real estate
transactions underlying Pruneda’s claims.
Pruneda’s motion for summary judgment
was set for submission on September 8, 2006.
Pruneda filed a late reply to appellant’s response to his motion for
summary judgment on September 23, 2006.
In the reply, Pruneda only sought summary judgment against Urban Living,
not Silaski.
Also on September 23, 2206, Pruneda
filed an amended motion for partial summary judgment. In the motion, Pruneda sought summary
judgment on his breach of contract and money had and received claims against
Urban Living only. Pruneda no longer
sought summary judgment against Silaski.
The amended motion for partial summary judgment clarified that, with
regard to the two real estate transactions, Pruneda, a licensed real estate
agent, was acting as a salesperson, and www.Urban, Inc. was the broker
sponsoring Pruneda. Silaski was not the
sponsoring broker on the transactions as previously asserted by Pruneda.
The trial court granted Pruneda’s
motion for summary judgment on October 21, 2008. The trial court’s order reflects that it
granted summary judgment based on Pruneda’s originally filed motion and not on
his later-filed motion for partial summary judgment.
The trial court signed a final
judgment on December 12, 2008. In the
judgment, the trial court ordered Urban Living and Silaski to pay $29,274 in
damages to Pruneda. As the basis for
liability, the trial court identified Pruneda’s claims for breach of contract
and money had and received. The trial
court also awarded Pruneda attorney’s fees of $17,243.72 for trial and
additional attorney’s fees for an appeal to this court and to the Texas Supreme
Court.
Appellants filed a motion for new
trial in which they argued for the first time that Pruneda’s common law claims
were barred by res judicata and the election of remedies doctrine. Appellants acknowledged that they had failed previously
to raise these defenses.
Pruneda filed a response to the motion
for new trial to which appellants, in turn, filed a reply. In their reply, appellants asserted, for the
first time, that the trial court had erred in setting aside the TWC decision
when it granted Pruneda’s motion for leave to reopen the TWC proceedings. The trial court denied appellant’s motion for
new trial on February 4, 2009.
Appellants also filed a post-judgment
motion to dismiss, asserting that the trial court lacked subject-matter
jurisdiction over the case. The trial
court did not rule on the motion.
Appellants now appeal the trial
court’s judgment against them.
Jurisdiction,
Res Judicata, and Election of Remedies
Appellants’ second issue reads, “The
trial court’s summary judgment is void because the trial court lacked subject-matter
jurisdiction and the final TWC order barred a subsequent suit on common law
claims seeking the same unpaid commissions.”
Appellants present their third issue as follows: “Plaintiff’s suit is also
barred by election of remedies, as he knowingly chose to pursue an administrative
remedy to final decision in lieu of proceeding in district court on his common
law claims.” In their fourth issue,
appellants contend, “Pruneda obtained a final decision from the TWC and thus
was barred by res judicata from filing suit for common law claims against the
same parties for the same commissions.”
As briefed, appellants have
intertwined issues of subject-matter jurisdiction with issues of res judicata
and election of remedies. For this
reason, we will discuss the issues together.
A. Appellants’
Affirmative Defenses
1. Jurisdictional Plea vs. Plea in Bar
We begin by recognizing that res
judicata and election of remedies are affirmative defenses on the merits. See France v. American Indem. Co., 648 S.W.2d 283, 285 (Tex. 1983) (election of remedies); W. Dow Hamm III Corp. v. Millennium Income
Fund, L.L.C, 237 S.W.3d 745, 755 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (res judicata). Here, appellants
assert that, because Pruneda had already obtained a final administrative
decision on the merits from TWC, res judicata and election of remedies barred
Pruneda from pursuing his common law claims to recover unpaid commissions in
the trial court. See Igal v. Brightstar
Information Tech. Group, Inc., 250 S.W.3d 78, 93 (Tex. 2008) (holding that
res judicata barred plaintiff from recovering on common law claims for wages
when a final TWC decision on the merits had previously been rendered on the
same wage claims against plaintiff).
Appellants
frame this argument as a jurisdictional one; that is, they assert that the
final TWC decision operated to deprive the trial court of subject-matter
jurisdiction over Pruneda’s common law claims for unpaid commissions. We disagree.
Because
they pertain to the merits of a case
and a plaintiff’s ultimate right to recover, res judicata and election of remedies are pleas in bar, not jurisdictional
pleas. See Tex. Hwy. Dep’t v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967); Kelley v. Bluff Creek Oil Co., 309
S.W.2d 208, 214 (Tex. 1958). If a plea in bar is sustained, a
take-nothing judgment finally disposing of the controversy will be rendered on
the merits for the defendant. See Jarrell, 418 S.W.2d at 488; Kelley, 309 S.W.2d at 214. In contrast, a plea to the jurisdiction is a
challenge to the court’s power to hear the suit, which, if sustained, requires
dismissal of the case. See Jarrell, 418 S.W.2d at 488; see Nat’l
Life Co. v. Rice, 167 S.W.2d 1021, 1024 (Tex. Comm’n App. 1943) (defining jurisdiction
as “the power conferred upon a court by the Constitution and laws to determine
the merits of that suit as between the parties and to carry its judgment into
effect”).
Pruneda filed his wage claim with TWC
pursuant to the Texas Payday Law. See Tex.
Labor Code Ann. § 61.001–.095 (Vernon 2006 &Vernon Supp. 2010). The Payday Law provides for administrative
review of claims and then for judicial review of final administrative
decisions. Holmans, II v. Transource Polymers, Inc., 914 S.W.2d 189, 190 n. 1 (Tex.
App.—Fort Worth 1995, writ denied); see Tex. Labor Code Ann. §§ 61.052,
61.0525, 61.055, 61.062 (Vernon Supp. 2010 & Vernon 2006).
Appellants acknowledge that the Payday
Law is not an employee’s sole and exclusive remedy for a claim for unpaid past
wages, but, rather, is an alternative remedy that is cumulative of common-law
remedies. Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 511
(Tex. App.—Houston [1st Dist.] 2006, pet. denied); Holmans, 914 S.W.2d at 192–93. As a result, a claimant can seek recovery of
unpaid wages by filing a claim pursuant to the Payday Law with TWC or by filing
suit in a court of law to assert common-law claims. Appellants correctly point out that a wage
claimant must choose whether he will pursue his wage claim by filing an
administrative claim or by filing a lawsuit.
See Igal, 250 S.W.3d at
92–93. Appellants are also correct in
asserting that, once a claimant has pursued his claim to a final determination
or judgment, whether with TWC or in a court of law, he cannot then pursue the
alternative avenue of recourse. See id.
Appellants are incorrect, however, in asserting that the claimant is
jurisdictionally barred from pursuing the wage claim in the alternate
forum. The Texas Supreme Court’s analysis
in Igal demonstrates that a claimant,
who has pursued an administrative claim with TWC to a final wage determination,
is barred by res judicata, not by some jurisdictional impediment to pursuing
common law claims in a court of law. See id.
Appellants’ res judicata and election
of remedies assertions, and the arguments underlying them, relate to the merits
of Pruneda’s claims and his entitlement to summary judgment. See
Kelley, 309 S.W.2d at 214. Had they
successfully presented these defenses, appellants would have been entitled to a
take-nothing judgment against Pruneda on his common law claims. See Jarrell,
418 S.W.2d at 488; Kelley, 309 S.W.2d
at 214; see also Igal, 250 S.W.3d at 93. Appellants would not have been entitled to a
dismissal of Pruneda’s common-law claims for lack of jurisdiction.[1] See Jarrell,
418 S.W.2d at 488; see also Igal, 250
S.W.3d at 93
1. Preservation
of Affirmative Defenses
The party asserting an affirmative
defense, such as res judicata or election of remedies, bears the burden of
pleading and proving its elements. See Compass Bank v. MFP Financial Services,
Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); Welch v. Hrabar, 110 S.W.3d 601, 606
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). Rule of Civil Procedure 94 requires a party to
expressly plead those affirmative defenses listed in the rule “and any other
matter constituting an avoidance or affirmative defense.” Tex. R.
Civ. P. 94. If an affirmative defense is not pleaded or
tried by consent, it is waived. See RE/MAX of Tex., Inc. v. Katar Corp.,
961 S.W.2d 324, 327–28 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).
Here, appellants did not affirmatively
plead res judicata or election of remedies.
In their reply brief, appellants contend that their failure to plead the
defenses did not result in waiver.
Appellants point to Pruneda’s original petition in which he mentioned and
sought review of the adverse TWC decision.
Citing Holladay v. CW & A,
Inc., appellants assert that “[t]he
mere mention of the prior decision was enough to make the res judicata defense ‘apparent
on the face of the plaintiff’s pleadings.’”
60 S.W.3d 243, 246 (Tex. App.—Corpus Christi 2001, pet. denied). The propriety of such assertion aside, we
conclude that appellants have not preserved for appeal their assertion that the
defenses of res judicata and election of remedies precluded summary judgment on
Pruneda’s common law claims. When a
party contends that summary judgment in favor of a plaintiff is improper
because of an affirmative defense, it must do more than merely plead that
defense. Kirby Exploration Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926
(Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). An affirmative defense will prevent summary
judgment in favor of a plaintiff only if the defendant supports each element of
his affirmative defense by summary judgment evidence. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d
118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
In their response to Pruneda’s motion
for summary judgment, appellants did not assert or present evidence that the
affirmative defenses of res judicata and election of remedies defeated
Pruneda’s request for summary judgment. Thus,
appellants cannot now successfully argue on appeal that the summary judgment should
be reversed based on these defenses. See Kirby Exploration Co., 701 S.W.2d at
926.
Moreover, Pruneda asserts that the TWC
decision no longer serves as a basis to support the defenses of res judicata
and election of remedies. He points out
that the trial court set aside the TWC decision when it granted Pruneda’s
motion to re-open the TWC proceeding for the presentation of additional
evidence. On appeal, appellants attack
Pruneda’s position by arguing that the trial court’s act of setting aside the
TWC decision was without basis in the law and was, therefore, in error.
Appellants did not raise this argument
in their response to Pruneda’s motion for summary judgment or at any time
before the trial court granted summary judgment in Pruneda’s favor. Appellants first presented this argument to
the trial court in their reply to Pruneda’s response to appellants’ motion for
new trial.
Issues that a nonmovant contends avoid summary judgment that
are not expressly presented to the trial court by written answer or other
written response to the summary judgment motion are waived on appeal. See Tex. R. Civ. P. 166a(c); see also D.R. Horton-Texas, Ltd. v. Markel
Intern. Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009); City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979). Because
they did not timely raise their assertion that the trial court improperly set
aside the TWC decision, we cannot consider it on appeal as grounds for
reversing the summary judgment. See D.R. Horton-Texas, 300 S.W.3d at 743; Clear Creek, 589 S.W.2d at 678; see
also Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797–98 (Tex. 2008) (concluding
that argument first raised by summary judgment non-movant in post-judgment
filing did not preserve argument for appeal).
B. Jurisdictional Arguments
Subject-matter jurisdiction is a question of
law, which we review de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject-matter jurisdiction is essential for a
court to have authority to decide a case; it is never presumed, cannot be
waived, and can be raised any time. See Alfonso v. Skadden, 251 S.W.3d 52,
55 (Tex. 2008).
Here, appellants present only two
arguments that truly can be construed to challenge subject-matter jurisdiction. One such argument is appellants’ assertion that
Pruneda failed to timely seek judicial review of the final TWC decision as
statutorily required.[2]
Section 61.062 of the Payday Law governs
the procedure for seeking judicial review of a final TWC decision. The section provides as follows:
(a) A party
who has exhausted the party’s administrative remedies under this chapter, other
than a motion for rehearing, may bring a suit to appeal the order.
(b) The suit
must be filed not later than the 30th day after the date the final order is
mailed.
(c) The
commission and any other party to the proceeding before the commission must be
made defendants in the suit.
(d) The suit
must be brought in the county of the claimant’s residence. If the claimant is
not a resident of this state, the suit must be brought in the county in this
state in which the employer has its principal place of business.
(e) An appeal
under this subchapter is by trial de novo with the substantial evidence rule
being the standard of review in the manner as applied to an appeal from a final
decision under Subtitle A, Title 4.
Tex. Labor Code Ann. § 61.062 (Vernon 2006).
The record shows that Pruneda filed his
original petition in the trial court less than 30 days after the final TWC
decision was mailed. See Tex.
Labor Code Ann. § 61.062(b). Appellants
do not dispute this. Instead, appellants
contend that Pruneda missed the 30-day deadline because he did not properly
plead his appeal of the TWC decision. Specifically,
appellants assert, “Pruneda never invoked the applicable statute [section
61.062],” when he filed his original petition.
Appellants point out that Pruneda did not cite Labor Code section 61.062
in his original petition. Instead, Pruneda
cited two provisions of the Labor Code, sections 212.201 and 212.206, which pertain
to judicial review of a TWC decision regarding unemployment claims, not unpaid wage
claims.
In his original petition, Pruneda
named TWC as a defendant. Pruneda
pleaded, “This petition seeks trial de novo of the decision of the [Texas
Workforce] Commission in Commission Appeal Number 06-056857-0, Commission
Appeal Decision Date April 16, 2007, which was an appeal of hearing officer M.
Miller’s Findings of Fact, Conclusions of Law and Decision mailed on January
26, 2007.” Pruneda further pled, “The
decision of the Commission is not supported by substantial evidence.” The original petition made clear that Pruneda
was seeking to recover unpaid wages and that he was appealing TWC’s decision that
disallowed his recovery of unpaid commissions.
The original petition cannot be read to assert an appeal from an agency
unemployment decision.
Texas
follows a “fair notice” standard for pleading, which looks to whether the
opposing party can ascertain from the pleading the nature and basic issues of
the controversy and what testimony will be relevant. See Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000) (holding that
defendant’s answer gave fair notice that defendant sought to invoke
punitive-damages cap, even though defendant had cited wrong statute). Moreover, the law requires us to give effect to the substance of a
pleading rather than its title or form. See State Bar v. Heard, 603 S.W.2d 829,
833 (Tex. 1980) (orig. proceeding); see
also In re S.A.M, No. 14-08-01068-CV, 2010 WL 3230621, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 17, 2010, no pet.) (concluding that substance of
petition governs over petition’s title).
Consistent
with these principles, we give effect to the substance of Pruneda’s original
petition regardless of which section of
the Labor Code Pruneda cited in the pleading.
The plain language of the original petition shows that Pruneda was
seeking judicial review of the TWC decision denying his wage claim. This can be ascertained from the
pleading. Thus, Pruneda timely sought
judicial review of the final TWC decision when he filed his original petition. See Tex. Labor Code Ann. § 61.062.
The other argument asserted by
appellants that raises a jurisdictional challenge is appellants’ contention
that TWC was a necessary party to Pruneda’s maintenance of his suit in the
trial court. Appellants contend that,
because TWC was a necessary party, the trial court lost subject-matter
jurisdiction when Pruneda nonsuited his claims against TWC and filed his first
amended petition in which he abandoned his claims against TWC.
We agree that, while Pruneda sought to
appeal the administrative decision, TWC was required to be a defendant in the
suit. See Tex. Labor Code Ann.
§ 61.062(c). We also agree with
Pruneda that once the trial court set aside the final TWC decision, Pruneda
dismissed his wage claim with TWC, and he abandoned judicial review of the TWC
decision, TWC was no longer a necessary party.
In fact, it was not a proper party at that point. All that then remained pending in the trial court
were Pruneda’s common law claims against appellants. TWC was not a defendant to these claims. Thus, appellants’ second jurisdictional argument
is without merit.
For the
reasons discussed, we overrule appellants’ second, third, and fourth issues.
Summary
Judgment
In their
fifth issue, appellants assert that the trial court erred in granting summary
judgment against Urban Living and Silaski in favor of Pruneda. The trial court granted summary judgment
against appellants on Pruneda’s claims for breach of contract and money had and
received.
A. Standard
of Review
To prevail
on a Rule 166a(c) summary-judgment motion, a movant must prove that there is no
genuine issue regarding any material fact and that it is entitled to judgment
as a matter of law. See Tex. R. Civ. P. 166a(c);
Little v. Tex. Dep’t of Criminal Justice,
148 S.W.3d 374, 381 (Tex. 2004). A
plaintiff moving for summary judgment must conclusively prove all essential
elements of its claim. See Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999). A matter is
conclusively established if reasonable people could not differ as to the
conclusion to be drawn from the evidence. See City
of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the
burden then shifts to the nonmovant to raise a genuine issue of material fact
precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). The
evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
On appeal,
we review de novo a trial court’s summary judgment ruling. See Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). In our review, we consider
all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not. See Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
B. Breach
of Contract
Appellants assert that the trial court
erred in granting Pruneda’s motion for summary judgment on Pruneda’s
breach-of-contract cause of action.
Parties form a valid and enforceable contract when the
following elements are present: (1) an offer, (2) an acceptance in strict
compliance with the terms of the offer, (3) meeting of the minds, (4) each
party’s consent to the terms, and (5) execution and delivery of the contract
with the intent that it be mutual and binding.
See Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197,
202 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004,
pet. denied). To be entitled to summary judgment on his breach-of-contract claim, Pruneda
was required to prove, as a matter of law, the following essential elements: (1)
the existence of a valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach of the contract by the defendant; and (4) damages
sustained as a result of the breach. See B
& W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied).
1. Urban Living
a. Pruneda
Met His Summary Judgment Burden
“A breach of contract occurs when a
party fails or refuses to do something he has promised to do.” Id. (quoting
Mays v. Pierce, 203 S.W.3d 564, 575
(Tex. App.—Houston [14th Dist.] 2006, pet. denied)). Here, Pruneda offered summary-judgment evidence
conclusively establishing that Urban Living breached its contract with him to
share in the real estate commissions earned on the Moxroy and Bomar properties.
Pruneda’s affidavit testimony indicates
that, with respect to the two properties, Pruneda worked as a real estate agent
on behalf of Urban Living. Pruneda’s
testimony further indicates that, in exchange for the “valuable time, effort,
and expense” that he expended in procuring the contracts on the Moxroy and Bomar
properties, Urban Living had agreed that Pruneda would be paid
commissions.
The two invoices offered by Pruneda
further evidence the agreement between Urban Living and Pruneda to split the
commissions. The invoices, signed by
Ramani and sent to the title company, show that Urban Living would receive 60
percent of the commissions and that Pruneda would receive approximately 40
percent of the commissions. The invoices
show that Urban Living and Pruneda had reached an agreement to share the
commissions earned on the two properties. The invoices further establish that the amount
of the commissions claimed by Pruneda are the same amounts reflected in the
invoices.
Pruneda’s evidence also shows that
Urban Living breached its agreement to split the commissions. Pruneda testified in his affidavit that Urban
Living caused his commissions to be “misdirected” to Urban Living. The letter from the title company offered by
Pruneda further evidenced that Ramani, Urban Living’s president, instructed the
title company not to pay Pruneda his share of the commissions. The summary judgment evidence also shows that
100 percent of the commissions were paid to Urban Living and that Pruneda
received no commissions.
Viewing Pruneda’s evidence in favor of
Urban Living does not change the only reasonable conclusion that can be drawn
it: Urban Living and Pruneda had a contract to share in the real estate
commissions generated from the sale of the Moxroy and Bomar properties, and
Urban Living breached the contract when it diverted Pruneda’s share of the
commissions to itself. Pruneda met his
summary judgment burden to establish his breach of contract claim against Urban
Living as a matter of law.
Urban Living contends that Pruneda did
not show that he was entitled to receive the commissions once he resigned from
Urban Living. It is undisputed that
Pruneda resigned before the closings on the two properties. Urban Living points out that the invoices
offered pre-date Pruneda’s resignation from Urban Living. Urban Living asserts that Pruneda’s right to
receive commissions terminated when he left Urban Living’s employment.
Contrary to Urban Living’s position,
Pruneda’s evidence shows that he earned the commissions when he procured the sales
contracts on the two properties. Pruneda’s
affidavit testimony indicates that the commissions were in exchange for the many
hours of work he expended and the out-of-pocket expenses he incurred in
procuring the contracts. Pruneda performed
his obligation under the agreement to share commissions when he procured the
contracts. Pruneda procured the sales
contracts many months before he resigned from Urban Living. Pruneda was not required to offer anything
more to show that he had earned the commissions.
It was part of Pruneda’s summary-judgment
burden to show a specific agreement to share commissions beyond his date of resignation. Pruneda met his summary-judgment burden when
he conclusively showed an agreement to split commissions, his performance of his
contractual obligation, and Urban Living’s breach the agreement. At that point, the burden shifted to Urban
Living, as nonmovant, to raise a genuine issue of material fact precluding
summary judgment. See Centeq Realty, 899 S.W.2d at 197.
b. Urban Living Did Not Meet Its Summary Judgment Burden
To support its summary-judgment
response, Urban Living offered Ramani’s affidavit and excerpts from its
employee handbook. Urban Living relies
heavily on the provision in the handbook which provides, “When leaving [Urban
Living], ALL listings will remain with [Urban Living] and any commissions paid
from the sale of such listings will belong solely to the [Urban Living].” Urban Living asserts this shows that Pruneda
was no longer entitled to share in the commissions after Pruneda resigned his
employment. Urban Living contends that
Pruneda’s receipt of commissions was conditioned on his continued employment
with Urban Living.
We must determine whether the evidence
offered by Urban Living in support of its response raises a genuine issue of
material fact regarding whether the parties had agreed to such condition. We conclude that Urban Living has not met its
burden.
In his affidavit, Ramani testified
that it was Urban Living’s “company policy” that employees did not receive
commissions once they left the company. Ramani
also averred that Pruneda was given a copy of the employee handbook containing
the continued-employment provision when he began working for Urban Living. Ramani averred, “[Pruneda] is aware he is not
entitled to commissions unless he remains with [Urban Living].” Ramani stated that the only exception to this
policy occurs when Urban Living and the employee have entered into a separately
signed, written agreement stating that the employee will receive the
commissions after he leaves Urban Living.
Ramani testified that there was no such agreement with Pruneda.
Pruneda cites Texas case authority
holding that a broker or salesperson earns his commission at the time he
procures the sales contract on the property.
See Frady v. May, 23 S.W.3d
558, 562–63 (Tex. App.—Fort Worth 2000, pet. denied) (citing Goodwin v. Gunter, 185 S.W. 295, 296–97
(Tex. 1916)). Pruneda also points out
that Texas courts have rejected the contention that a broker’s right to a
commission hinges on his continued employment through the time of the final
consummation of the sale. See id.
Pruneda relies on this legal precept to refute Urban Living’s claim that
Pruneda’s receipt of his share of the commissions was conditioned on his
continued employment with Urban Living.
However, courts have also recognized that parties can agree to vary from
this generally applicable rule by incorporating express language into their
sales commission agreement. See id.; see also Ramesh v. Johnson, 681 S.W.2d 256, 259 (Tex. App.—Houston
[14th Dist.] 1984, writ ref’d n.r.e) (“We agree with appellant that where the
parties to a contract make the payment of a commission expressly contingent on
a closing or other event, and that event does not occur, no obligation exists
to pay the commission.”). Thus, if it is
shown that the parties agreed that Pruneda’s receipt of the commissions in this
case was conditioned on his continued employment through the closing on each
sales contract, such condition may have barred his recovery of damages.
The question that must be answered is
whether the handbook provision operates to bar Pruneda from recovering his
share of the commissions on the Moxroy and Bomar properties.[3] We agree with Pruneda that it does not. As he points out, the language of the
provision demonstrates that it does not apply to commissions that have already been
earned on a property when the employee leaves Urban Living.
To reiterate, the provision states,
“When leaving [Urban Living], ALL listings will remain with [Urban Living] and
any commissions paid from the sale of such listings will belong solely to the
[Urban Living].” Pruneda avers that a
“listing” does not result in a commission; rather, a commission results from
the procurement of a sales contract. He
asserts, “A listing pertains to a solicitation for which no sale has been
procured.”
Pruneda
contends, and we agree, that the handbook provision does not address listings
that culminated into sales contracts before an employee leaves. Rather, it limits an employee’s right to
receive commissions on a sales contract procured on a listing after the
employee leaves Urban Living. As a
practical matter, the provision deprives an employee of commission on a listing
on which he had worked but had not yet procured a sales contract at the time he
left Urban Living. When a sales contract
is later procured, the provision would preclude the employee from seeking
compensation for the work he had performed on the listing before leaving Urban
Living.
By its language, the provision does
not address a sales commission earned by an employee who already had procured a
sales contract before leaving Urban Living.
The provision does not disturb the general rule regarding when
commissions are earned. Nor does it preclude
Pruneda from receiving the Moxroy and Bomar commissions, which he earned months
before leaving Urban Living when those properties sold, even though the
closings had not yet taken place. Thus,
the employee handbook does not raise a genuine issue of material fact or
otherwise serve to defeat Pruneda’s summary judgment evidence.
Urban Living also assails the summary
judgment on the ground that any agreement between Urban Living and Pruneda under
which Urban Living was obligated to directly pay Pruneda commissions would be
illegal. In its reply brief, Urban
Living contends, “Pruneda has failed to counter the dispositive point made in
Appellants’ initial brief that any contract requiring UL or Silaski to pay him
commissions is void and unenforceable because he is statutorily prohibited from
receiving commissions from UL or Silaski, and they are likewise statutorily
prohibited from paying him commissions.” To support its argument, Urban Living cites
section 1101.651 of the Real Estate Licensing Act (“RELA”), which, in part,
provides as follows:
(b) A salesperson may not accept compensation for a
real estate transaction from a person other than the broker with whom the salesperson
is associated or was associated when the salesperson earned the compensation.
(c) A salesperson may not pay a commission to a
person except through the broker with whom the salesperson is associated at
that time.
Tex. Occ. Code Ann. §
1101.651(b), (c) (Vernon 2004). Urban
Living points to the sales documents offered by Pruneda which show that neither
Urban Living nor Silaski was the sponsoring broker on the Moxroy and Bomar
transactions. Instead, the documents
show www.Urban,Inc. as the broker listed in the documents. Urban Living asserts that RELA section 1101.651
mandates that only www.Urban,Inc. could directly pay Pruneda. Urban Living contends that a claim by Pruneda
to recover commissions directly from Urban Living violates section 1101.651.
An analysis of the record shows that
Urban Living’s argument is flawed.
Pruneda’s summary judgment evidence proved a contract between Pruneda
and Urban Living to split commissions on the Moxroy and Bomar transactions. Pruneda’s summary judgment evidence does not
show a contract between him and Urban Living under which Urban Living was
obligated to directly pay Pruneda his commissions. Presumably, Urban Living and Pruneda would
have each been paid that party’s respective share of the commissions from a legally-authorized
third party. We note that Urban Living
was ultimately paid 100 percent of the commissions on the Moxroy transactions
with a check from the title company. The
check bore a notation that it was sent to the attention of Silaski, who is a
licensed broker in Texas and a principal of corporate broker www.Urban,Inc.,
which is the sponsoring broker on the transactions.
Moreover, to the extent that the
judgment in this case requires Urban Living to pay money to Pruneda, such payment
is not prohibited by RELA section 1101.651.
Pruneda is seeking, and Urban Living would pay, damages to Pruneda for
breaching the contract to share commissions.
In other words, Urban Living would not pay commissions to Pruneda; it
would pay him breach-of-contract damages.
c. Conclusion
Regarding Pruneda’s Breach of Contract Claim Against Urban Living
We conclude that Pruneda conclusively
showed (1) he had a contract with Urban Living to split the commissions earned on
the Moxroy and Bomar property transactions, (2) he performed his contractual
obligation to procure the sales contracts, (3) and Urban Living breached the
contract when it misdirected Pruneda’s share of the commissions to itself. Stated differently, Pruneda met his summary
judgment burden by proving his breach of contract claim against Urban Living as
a matter of law. We further conclude
that Urban Living did not meet its summary judgment burden as nonmovant. Urban Living did not offer evidence that
raised a genuine issue of material fact on the elements of Pruneda’s contract
cause of action. We hold that Pruneda is
entitled to summary judgment against Urban Living on his breach of contract
claim.
2. Silaski
We next determine whether Pruneda
satisfied his summary judgment burden against Silaski with regard to his breach
of contract claim. We conclude that he
did not. Vital to Pruneda’s successful
breach of contract claim against Urban Living are the invoices evidencing the
agreement between Pruneda and Urban Living to share the commissions on the
Moxroy and Bomar contracts procured by Pruneda.
The invoices serve to link together the other evidence offered by
Pruneda to support his breach of contract claim against Urban Living. The invoices provide context to the letter
from the title company and to the check paying Urban Living 100 percent of the Moxroy
commissions. In short, the invoices are
the glue holding Pruneda’s summary judgment evidence together.
Although generally averred by him in
his affidavit, Pruneda did not show that Ramani was acting on behalf Silaski
when he signed the invoices. To the
contrary, it appears from the invoices that Ramani was acting on behalf of Urban
Living. Evidence suggesting that Silaski
caused the commissions to be diverted to Urban Living or that he, in some
undefined manner, benefited financially from Pruneda’s procurement of the sales
contracts does not show an agreement between Pruneda and Silaski to share
commissions.
Pruneda did not offer other evidence
to show that he had an agreement with Silaski regarding the commissions. Without such evidence, Pruneda failed to show
the existence of a valid contract between him and Silaski with respect to payment
of, or sharing of, commissions.[4]
We conclude that Pruneda did not conclusively
prove his breach of contract claim against Silaski. Thus, Pruneda is not entitled to summary
judgment against Silaski on this claim.
C. Money
Had and Received
In addition
to breach of contract, the trial court rendered summary judgment based on
Pruneda’s claim for money had and received.[5] We agree with appellants that this cause of
action cannot support summary judgment on the record presented.
To recover on a claim for money had
and received, a plaintiff must show that the defendant holds money which in
equity and good conscience belongs to him. Staats
v. Miller, 243 S.W.2d 686, 687 (Tex. 1951); Edwards v.
Mid-Continent Office Distributors, L.P., 252 S.W.3d 833, 837 (Tex. App.—Dallas 2008, pet. denied). A cause of action for money had and received
is not based on wrongdoing, but, instead, “looks only to the justice of the
case and inquires whether the defendant has received money which rightfully
belongs to another.” Everett v. TK-Taito, L.L.C., 178 S.W.3d
844, 860 (Tex. App.—Fort Worth 2005, no pet.); Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El Paso
1997, no writ). In short, it is an
equitable doctrine applied to prevent unjust enrichment. Hunt v.
Baldwin, 68 S.W.3d 117, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.);
Phippen v. Deere & Co., 965
S.W.2d 713, 725 (Tex. App.—Texarkana 1998, no pet.).
Generally, when a valid, express
contract covers the subject matter of the parties’ dispute, there can be no
recovery under a quasi-contract theory, such as money had and received. See Fortune Prod. Co. v. Conoco, Inc., 52
S.W.3d 671, 684 (Tex. 2000) (involving claim for unjust enrichment); DeClaire v. G & B McIntosh Family Ltd. P’ship,
260 S.W.3d 34, 49 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (same). Parties should be bound by their express
agreements, and when a valid agreement already addresses the matter, recovery
under an equitable theory is generally inconsistent with the express terms of
the agreement. Conoco, 52 S.W.3d at 684; see
Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.—Dallas
2008, pet. denied) (“The doctrine of unjust enrichment applies the principles
of restitution to disputes that are not governed by a contract between the
parties.”).
As discussed, Pruneda has proven the
existence of a contract with Urban Living that covers the subject matter of the
dispute. Accordingly, summary judgment
cannot be sustained against Urban Living based on Pruneda’s claim for money had
and received. See Ledig v. Duke Energy Corp., 193 S.W.3d 167, 176 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (affirming summary judgment for
defendant on plaintiff’s unjust enrichment claim because express contract
covered subject of dispute).
We further conclude that, on the
record presented, summary judgment is not proper on Pruneda’s money had and
received claim against Silaski. Pruneda
has not conclusively shown that Silaski “holds money which in equity and good
conscience belongs to him.” See Staats, 243 S.W.2d at 687. In his affidavit, Pruneda averred that
Silaski had benefitted from his procurement of the Moxroy and Bomar
contracts. Pruneda also offered the
check from the title company made payable to Urban Living and sent to the
attention of Silaski. Pruneda did not,
however, offer evidence conclusively showing that Silaski was holding or in possession
of money that belonged to Pruneda. For
this reason, Pruneda did not show, as a matter of law, that he was entitled to
summary judgment against Silaski based on money had and received.
To summarize, Pruneda proved, as a
matter of law, that he was entitled to summary judgment against Urban Living
for breach of contract. For this reason,
Pruneda is not entitled to summary judgment against Urban Living for money had
and received. On this record, Pruneda
did not prove, as a matter of law, that he was entitled to summary judgment
against Silaski for breach of contract or for money had and received.[6]
Accordingly, we overrule appellants’
fifth issue to the extent that it challenges the summary judgment based on
breach of contract against Urban Living.
We otherwise sustain appellants’ fifth issue.
D. Segregation of Attorney’s Fees
In their
sixth issue, appellants contend that the trial court erred in awarding Pruneda
his attorney’s fees in the amount of $17,243.72 for trial, and additional sums
for appellate attorney’s fees, because Pruneda did not segregate his
recoverable attorney’s fees from his unrecoverable fees.
We first clarify that, because we have
determined that summary judgment was not appropriate against Silaski on the
contract and quasi-contract claims, Pruneda is not entitled to the attorney’s
fees awarded against Silaski by the trial court. See
Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004)
(holding that plaintiff must recover actual damages to recover attorney’s fees
in breach of contract action). In
contrast, Pruneda is entitled to attorney’s fees against Urban Living based on
his successful breach of contract claim, if he has properly proven the fees. See Tex. Civ. Prac. & Rem. Code Ann. §
38.001(8) (Vernon 2008).
When a lawsuit involves multiple
claims or parties, the proponent of attorney’s fees must segregate recoverable
fees from those incurred by parties or on claims for which fees are not
recoverable. Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132,
143 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Attorney’s fees that relate solely to a claim
for which fees are unrecoverable must be segregated. Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006).
In his motion for summary judgment,
Pruneda sought attorney’s fees based on Civil Practice and Remedies Code
section 38.001. Pruneda asserted that
his attorney’s fees claim was “for rendered services, performed labor, and an
oral or written contract.” See Tex.
Civ. Prac. & Rem. Code Ann. § 38.001 (permitting recovery for
attorney’s fees and costs for variety of claims, including claims for rendered
services, performed labor, or oral or written contract). This corresponds to Pruneda’s claims for
breach of contract and money had and received on which he sought summary
judgment.
Significantly, the party seeking to
recover attorney’s fees bears the burden of demonstrating segregation is not
required. See Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 455 (Tex. App.—Houston
[1st Dist.] 2007, no pet.); see also CA
Partners v. Spears, 274 S.W.3d 51, 82 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied). Here, Pruneda offered the
affidavit testimony of his attorney to support his attorney’s fees
request.
Pruneda’s counsel represented him in
both the TWC proceeding and in the trial court.
Urban Living asserts that counsel failed to segregate the time he spent
pursuing Pruneda’s TWC claim from his common law claims on which the trial
court awarded attorney’s fees. The
record supports Urban Living’s assertion.
The record contains several filings prepared
in the trial court that pertain to Pruneda’s claim for judicial review of the
TWC claim. The record shows that counsel
prepared Pruneda’s original petition, which included a claim for judicial
review of the TWC claim. Pruneda’s
counsel also prepared Pruneda’s seven page “Motion for Leave to Re-Open Texas
Workforce Commissions Hearing to Present Additional Evidence.” After the trial court vacated the TWC
decision, counsel prepared and filed Pruneda’s notice of nonsuit informing the
trial court that he was dismissing his claim against TWC.
Counsel’s affidavit offered to support
attorney’s fees does not segregate the time that counsel spent preparing the
filings relating to Pruneda’s appeal of the TWC decision from the time that counsel
spent advancing the common law claims on which Pruneda recovered attorney’s
fees.[7] Counsel averred that his firm had charged
Pruneda reasonable fees for his legal services that were necessary to
representing Pruneda “in this case.” Counsel
states, inter alia, that “[t]his case involved adjudication of an
administrative law appeal under the substantial evidence rule . . . .”
Urban Living cites Tony Gullo Motors as controlling
authority on the issue of segregation of attorney’s fees. 212 S.W.3d at 313–14. In that case, Chapa, the plaintiff, asserted
claims for breach of contract, violations of the Deceptive Trade Practices Act,
and fraud. Id. at 303. The jury awarded
Chapa $20,000 in attorney’s fees. It was
not clear on which claims the attorney’s fees had been awarded. See
id. Tony Gullo Motors objected on
the ground that attorney’s fees were unrecoverable on Chapa’s fraud claim. Id.
at 310.
The court expressed concern that it
needed to address an exception it had previously recognized to the
long-standing rule that fee claimants are always required to segregate fees
between claims for which fees are recoverable and claims for which they are not. Id. at
311.
The exception of concern had been created by the court in Stewart Title Guar. Co. v. Sterling, 822
S.W.2d 1, 10 (Tex. 1991). There, the
court had recognized that, when attorney’s fees rendered are “in connection
with claims arising out of the same transaction and are so interrelated that
their prosecution or defense entails proof or denial of essentially the same
facts,” the fees need not be segregated. Id. at
11. The Sterling court had concluded, “Therefore, when the causes of action
involved in the suit are dependent upon the same set of facts or circumstances
and thus are intertwined to the point of being inseparable, the party suing for
attorney’s fees may recover the entire amount covering all claims.” Id.
In Tony Gullo Motors, the court warned that
the Sterling exception “threatened to
swallow” the rule. See 212 S.W.3d at 311. The
court explained that the exception had been difficult for courts to
consistently apply and had flooded courts with claims for otherwise
unrecoverable fees. Id. at 312. The supreme
court concluded that to the extent it had suggested in Sterling “that a common set of underlying facts necessarily made
all claims arising therefrom ‘inseparable’ and all legal fees recoverable, it
went too far.” Id. at 313.
Ultimately, the Tony Gullo Motors court modified Sterling and “reaffirm[ed] the rule that if any attorney’s fees
relate solely to a claim for which such fees are unrecoverable, a claimant must
segregate recoverable from unrecoverable fees.” Id. The court clarified, “Intertwined facts
do not make [unrecoverable] fees recoverable; it is only when discrete legal
services advance both a recoverable and unrecoverable claim that they are so
intertwined that they need not be segregated.”
See id. at 313–14. This is the rule that we apply today.
Here, the following legal services
reflected in the record did not advance Pruneda’s common law claims on which he
was entitled to recover attorney’s fees: drafting the portion of the original
petition seeking judicial review of the TWC decision and preparing the motion
to re-open the TWC proceedings for the taking of additional evidence. Instead, these legal services advanced
Pruneda’s appeal of the TWC decision.
Pruneda did not carry his burden to
show that segregation was not required.
Nor does counsel’s affidavit reflect that he discounted the services related
to the TWC appeal when he calculated the amount of attorney’s fees owed to
Pruneda. Counsel’s affidavit also does
not reflect the amount or percentage of his time that he spent on the TWC appeal
versus the amount of time he spent advancing the claims on which Pruneda was
entitled to recover his attorney’s fees.
See id. (“Chapa’s attorneys did not have to keep separate time records
when they drafted the fraud, contract, or DTPA paragraphs of her petition; an
opinion would have sufficed stating that, for example, 95 percent of their
drafting time would have been necessary even if there had been no fraud claim.”);
cf. Med. Specialist Group, P.A. v.
Radiology Assocs., L.L.P., 171 S.W.3d 727, 738 (Tex. App.—Corpus Christi
2005, pet. denied) (“In his affidavit, Radiology Associates’ counsel . . .
testified that his fees for the defense of the case totaled $460,087.00, and
approximately forty percent of these fees were directly related to Saratoga’s
antitrust claims.”).
We conclude that, because he did not
segregate the fees, Pruneda did not conclusively establish the attorney’s fees
awarded by the trial court.
We sustain appellants’ sixth
issue.
Conclusion
To
summarize, we hold that, based on the record presented, (1) summary judgment
was properly granted in favor of Pruneda against Urban Living on Pruneda’s
breach of contract claim; (2) summary judgment was not properly granted against
Urban Living on Pruneda’s money had and received claim; and (3) summary
judgment was not properly granted against Silaski on either of Pruneda’s
claims. We further hold that the trial
court erred by awarding Pruneda attorney’s fees on the record presented.
We affirm
the portion of the trial court’s judgment awarding Pruneda $29,274 in damages
against Urban Living for breach of contact.
We reverse the remainder of the trial court’s judgment and remand the
case to the trial court for further proceedings.
Laura
Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Bland.
[1]
Appellants cite Hull v. Davis, 211 S.W.3d 461, 466 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) for the proposition that a trial court
lacks subject-matter jurisdiction over a common law claim to recover wages when
the claimant has already pursued a remedy under the Payday Law with TWC to a
final administrative decision. The Hull court cites 11th St. Bingo Assoc. v. Simonson, No. 13-02-399-CV, 2004 WL
1117161, at *2-3 (Tex. App.—Corpus Christi May 20, 2004, no pet.) (mem. op.)
for this same proposition. See Hull, 211 S.W.3d at 466. We note, however, that at the time of these
decisions, neither court of appeal had the benefit of the supreme court’s
analysis and decision in Igal.
[2]
Pruneda dismissed TWC from the
suit and abandoned his judicial review of the administrative decision after the trial court set aside the
final TWC decision. The summary judgment
in favor of Pruneda, which is the subject of this appeal, is based only on
Pruneda’s common law claims. Thus,
whether Pruneda properly invoked the trial court’s jurisdiction to judicially
review the TWC decision rendered pursuant to the Payday Law is arguably
moot. We discuss it for completeness of
review of the issues, which, as briefed, are intertwined and overlapping.
[3]
In the trial court, Pruneda
raised a statute of frauds objection regarding the employee handbook. We note that the Real Estate License Act
(“RELA”) provides that an agreement between real estate license holders to share
commissions need not be in writing. See Tex.
Occ. Code § 1101.806(a)(1) (Vernon 2004).
[4]
In addition, the record does not support a
claim that Silaski had agreed, as the sponsoring broker, to pay Pruneda the
commissions. Pruneda’s affidavit
testimony indicating that Silaski was the sponsoring broker on the two sales
contracts is refuted by the sales documents offered by Pruneda and by Silaski’s
affidavit testimony.
[5] Appellants also complain that the
trial court improperly based summary judgment on a cause of action not pleaded because it referenced the Real Estate Licensing Act in the recital
portion of its judgment. Express decretal language in a judgment controls over
recitals. State v. Brownlow, 319 S.W.3d 649, 653 (Tex. 2010). The decretal portion of the summary judgment
indicates that the trial court based appellants’ liability on Pruneda’s pleaded
claims of breach of contract and money had and received. No mention was made of RELA in the decretal
portions of the judgment.
[6] In his first issue, Silaski
challenges the trial court’s summary judgment against him on the ground that
Pruneda’s amended motion for partial summary judgment was the “live” motion for
summary judgment at the time the trial court granted summary judgment against
him on the originally filed motion.
Silaski points out that Pruneda did not seek summary judgment against
him in the amended motion. Because we
have determined that summary judgment was not appropriate against Silaski on
this record, we need not determine Silaski’s first issue.
[7]
It is undisputed that Pruneda did not
recover, nor could he recover, attorney’s fees with
respect to his claim seeking judicial review of the TWC decision. See Abatement Inc. v. Williams, No. 14-09-00523-CV,
2010 WL 3917308, at *5 (Tex. App.—Houston
[14th Dist.] Oct. 7, 2010, no pet. h.) (recognizing that, while they are recoverable for breach of
contract claim, attorney’s fees are not recoverable
for Payday Law claims).
|
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897 N.E.2d 261 (2008)
229 Ill.2d 653
PEOPLE
v.
STRAMAGLIO.
No. 106531.
Supreme Court of Illinois.
September Term, 2008.
Disposition of petition for leave to appeal.[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.
|
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NO. 07-07-0222-CR
NO. 07-07-0223-CR
NO. 07-07-0225-CR
NO. 07-07-0226-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 23, 2008
______________________________
LINDSEY FORD JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NOS. 2006-413,878, 2006-413,889, 2006-413,895, and 2006-414,532;
HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER DENYING MOTION FOR EXTENSION
Appellant, Lindsey Ford Jr., has filed a motion wherein he requests that this Court
grant him additional time to file a motion for rehearing in each of four appeals referenced
above.
For the reasons stated, said motion is denied.
Discussion
On June 24, 2008, this Court issued its opinion in No. 07-07-0222-CR, affirming
Appellant’s conviction for the offense of forgery. At the same time, this Court issued its
opinion in No. 07-07-0223-CR, 07-07-0225-CR, and 07-07-0226-CR, affirming Appellant’s
three convictions for the offense of burglary of a habitation. The judgment of this Court
was entered on the same day in each cause. On August 13, 2008, Appellant, acting pro
se, filed his Motion for Extention (sic) of Time, requesting that this Court grant him
additional time to file a motion for rehearing.
A motion for rehearing may be filed within 15 days after the court of appeals’
judgment or order is rendered. Tex. R. App. P. 49.1. A court of appeals may extend the
time for filing a motion if a party files a motion complying with Rule 10.5(b) no later than 15
days after the last date for filing the motion for rehearing. Tex. R. App. P. 49.8. A motion
complies with Rule 10.5(b) if it states (A) the deadline for filing the item in question; (B) the
length of extension sought; (C) the facts relied on to reasonably explain the need for an
extension; and (D) the number of previous extensions granted regarding the item in
question. Tex. R. App. P. 10.5(b).
The judgment of this Court was entered on June 24, 2008; therefore, the deadline
for filing a motion for rehearing was July 9, 2008. Appellant’s motion was filed on August
13, 2008, more than 15 days after the last date for filing the motion for rehearing. Because
Appellant’s motion for extension of time was not timely filed, we need not address whether
the motion complied with the requirements of Rule 10.5(b).
Appellant’s motion for extension of time is denied.
Patrick A. Pirtle
Justice
Do not publish.
|
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Filed 7/18/16 P. v. Campos CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B259896
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA361087)
v.
SAUL CAMPOS, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P.
Fidler, Judge. Affirmed as modified.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant Saul Campos.
Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and
Appellant Pasqual Campos.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Twin brothers Saul and Pasqual Campos1 were convicted of numerous felonies
committed when they were 15 years old. Each was sentenced to 25 years to life in state
prison. The Camposes challenge their convictions and sentences on multiple grounds.
We modify the judgment to correct the presentence custody credits but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006 and 2007, the Los Angeles Sheriff’s Department conducted a wiretap
investigation involving the Varrio Locos Trece gang, commonly called “Trece.” The
investigation resulted in the indictment of 10 Trece members and associates, including
the Camposes. Trece members Felix Silva, Saul, and Pasqual were tried together. The
charges pertained to four separate events in late 2006 and early 2007.
A. Lucio Amparo Incident, December 16, 2006 (Charges Against Saul and
Pasqual)
In a December 13, 2006 telephone call monitored by the Los Angeles County
Sheriff’s Department, Pasqual spoke with fellow Trece member Antonio Roman, Jr.
Pasqual asked Roman where “the thing” was, because he had spotted a “Leva” (a
member of the rival Largo gang) near his school. Roman said he had it with him, and
Pasqual instructed him to bring it to him quickly because “we got a new fool too.” Based
on this call, law enforcement believed that the speakers were about to transfer or
transport a weapon, and additional officers traveled to the area. When Pasqual and
Roman spoke again a few minutes later, Roman explained that he was still at home
because the police were in the area. Pasqual expressed frustration because the Leva was
“set up in target,” and told Roman to contact him when he was leaving.
On December 15, 2006, at 9:35 p.m., Roman told an unidentified speaker that he
was with “the twins.” Roman advised the other person to call if he saw suspicious cars.
At 10:04 p.m., Pasqual told Roman that he had spotted a “Leva,” and said, “if you all
don’t mind slugging on a hina.” “Slugging” was a common term for shooting, and “hina”
1 Because Saul and Pasqual share the same surname, they will be referred to by first
name for clarity.
2
referred to a woman. One minute later, Pasqual gave Roman the location, and said, “if
you all don’t mind shooting a hina, she’s with him.” Only a few seconds later, Pasqual,
Roman, and Saul spoke. Roman and Saul were having difficulties, and Pasqual gave
directions where to go to find their target, “the slipping fool with his h[i]na just posted in
front”; that is, the rival gang member not paying attention with a woman standing out in
front.
At 10:07 p.m., Silva gave Saul directions to the target, who was “right there
outside with a hina.” Silva told Saul to tell him “if you guys are going” so that he could
“get behind” them, at which point Saul responded that Silva should “come back fool, you
explain better[,] nigga.” Silva said, “You ain’t gonna do it, huh[?] [All ]right, fuck it[,]
don’t do it then[,] man, fuck it then.” Saul answered, “Just come over here[,] fool[,] so
we can do [it].” At 10:46 p.m., Roman told a man known only as Padilla that he was
with “the little twin,” Pasqual. Padilla cautioned Roman to be careful.
Lucio Amparo was affiliated with a gang known as Tortilla Flats. He and Roman
were neighbors and enemies. They had been in multiple fistfights, and Amparo believed
Roman had shot at him in the past. At approximately 11:15 p.m. on December 15, 2006,
Amparo was walking outside when he saw a white Ford F-150 behind him. Amparo
recognized Roman in the passenger seat but could not see the driver clearly. As the truck
passed alongside Amparo, Roman said, “Fuck you,” and shot five times. Amparo was
struck by one bullet.
In a telephone conversation shortly after the shooting, Roman spoke with Trece
associate Carlos Arellano, who told Roman that police were in the area looking for him.
Arellano said that he had heard that Roman went to do a “mission” (gang business), and
asked if there had been a shooting. Roman asked if Arellano had seen an ambulance;
Arellano responded that he had seen a lot of police. The following day, Silva asked
Roman, “Who was that dude yesterday?” Roman told Silva that he was from Tortilla
Flats, and that he (Roman) had had “serious problems” with him.
3
Based on this incident, Saul and Pasqual were convicted of conspiracy to commit
murder (Pen. Code,2 §§ 182, subd. (a)(1), 187) (count 1), with the special allegation
found true that the crime was committed to benefit a criminal street gang (§ 186.22, subd.
(b)); and active participation in a criminal street gang (§ 186.22, subd. (a)) (count 3).
B. Lucien Street Incident, December 17, 2006 (Charges Against Pasqual)
At 9:41 p.m. on December 17, 2006, Pasqual asked Roman to get a nine-
millimeter gun and go outside. Roman agreed to wait outside his house for the gun to be
picked up. A few minutes later, Pasqual warned Roman that police were in the area;
Pasqual instructed Roman to wait out front and said he would tell the others to go to
Roman’s house.
Approximately 15 minutes later, Pasqual asked Arellano for “the thing” because
they needed it “right now.” They discussed where the item was and how to access it. At
10:10 p.m., Pasqual told Roman to go outside because “the homies” were out in front. At
10:12 p.m., Pasqual checked with Roman that the men had come and gone and asked,
“They took it, right?”
At 10:15 p.m., deputy sheriffs on patrol in the area saw a dark blue Ford Excursion
with a driver and a passenger who appeared to be gang members. When they began to
follow the Excursion, the driver sped off, then slowed enough for the passenger, later
determined to be Trece member Jesus Garcia, to exit the car with a gun. The officers
apprehended Garcia and recovered a .40-caliber semi-automatic firearm with 10 rounds
in its magazine. Other officers stopped the Excursion on Lucien Street and detained its
driver, Trece member and shot caller Ivan Lozano.
The next morning, Lozano said they had been “on” the night before but that they
were unable to shoot anyone. Lozano had meant to “dump on them nigga right there.”
“Dumping” was a gang term for shooting. Lozano said he had planned to “tag” (shoot)
the people and to “go around . . . then hit the niggas” but then the police appeared.
2 Unless otherwise indicated, all further statutory references are to the Penal Code.
4
Garcia jumped from the car and Lozano told him to get rid of his weapon. The police
caught Garcia with a “Whoadie,” a .40-caliber gun. Lozano said he had been able to
escape initially but was apprehended when he returned to try to find Garcia.
On December 18, Lozano and Trece member Anthony Rivera discussed the need
to “close shop” and postpone gun-related activities due to the presence of federal agents
in the area. Lozano told Rivera they had lost the Whoadie and remarked, “We are
bringing heat to the hood like a mother fucker.” At the close of the conversation, Lozano
instructed Rivera to tell “the homies” that the neighborhood was “super hot,” meaning
that the police were around.
A firearms expert determined that the gun recovered in this incident matched
expended bullet casings that had been recovered after Amparo was shot.
Based on this incident, Pasqual was charged with conspiracy to commit murder
(count 5), with a gang enhancement under section 186.22, subd. (b)(1)(C); and active
participation in a criminal street gang (count 7). Pasqual was convicted on count 5 of the
lesser offense of conspiracy to commit assault with a semi-automatic firearm (§§ 182,
subd. (a)(1), 245, subd. (b)), with the gang enhancement found true; and he was
convicted as charged on count 7. Saul was not charged with respect to this incident.
C. Ladybug Incident, January 19, 2007 (Charges Against Pasqual)
On January 19, 2007, at 7:11 p.m., Roman spoke with Trece member Jose
Rodriguez. Roman told Rodriguez that Ladybugs—members of a rival gang—were
around. Ten minutes later, Saul and Roman discussed getting a car and a “thing.” At
7:51 p.m. Rivera and his brother, also a Trece member, discussed the need to have an
item picked up for an unidentified third person who said that rival gang members are
passing through the area and who wanted to “take them fools.” They talked about
arrangements to pick up something so that “the little homies” can “[h]andle what they
gotta handle.”
A flurry of calls followed. Rivera talked to an unknown man at 7:55 p.m. about
meeting plans to pick “it” up; Rivera advised the other speaker that the “homie’s gonna
5
need that right now.” At 8:32 p.m., another unidentified speaker told Rivera that Trece
member Raul Soltero had the item but that it needed shells, meaning casings or bullets.
Rivera said that he had advised “them” that they needed to get shells. The unknown man
asked, “They gonna burn it up or what?” Rivera responded, “They’re gonna do
something.” Seconds after that call ended, Rivera told Soltero that he would try to send
either Silva or the Camposes to pick up the item so that Soltero would not have to travel
with it. At 8:35 p.m. Rivera sent Silva to pick it up from Soltero. In an 8:40 p.m. call,
Rivera told Soltero they were driving an older white truck, and Rivera and Soltero stayed
on the phone until Soltero confirmed that he saw the truck. Meanwhile, Trece members
continued to search for ammunition: Saul asked Roman for shells for a “nino,” a nine-
millimeter handgun, and Roman said he would attempt to locate some. Rivera asked
Soltero for ammunition but Soltero had none.
These conversations prompted law enforcement to send officers toward Soltero’s
street to intercept the white truck and disrupt the plan for Pasqual and Silva to pick up the
gun from Soltero. The police spotted Silva driving his white Ford F-150 pickup truck
and Pasqual in the passenger seat. When the police pulled Silva over, Pasqual jumped
out of the truck and fled, throwing a blue steel handgun with an extended magazine over
a fence as he ran. The police pursued Pasqual, took him into custody, and recovered the
blue steel handgun.
At 9:05 p.m., Silva told Rodriguez that the police “just chased the ‘Twin’ right
now” and probably were looking for him (Silva) too. Silva believed that they had caught
Pasqual. Silva thought that the police would conduct a raid and that Rodriguez should
tell everyone to leave the neighborhood. Later that night, Silva explained to Rivera that
they had picked up the gun as planned but then encountered the police, and Pasqual ran.
Rivera asked if the police found the weapon. Silva believed they were still searching for
it.
The following morning, January 20, 2007, Pasqual spoke to several other Trece
members. Pasqual told Rodriguez that he had been released and that he would search for
the gun that day. Pasqual said he lost the nine-millimeter handgun that he had obtained
6
from Soltero. Pasqual said that he had been “about to go plug,” meaning about to commit
a shooting. They had intended to get ammunition but Silva became paranoid and
panicked when the police appeared. Pasqual said Silva made him jump from the vehicle,
and Rodriguez responded that it was because Pasqual had the gun. Pasqual told
Rodriguez that he did not think that the police had found the gun that he tossed away.
Pasqual also reported to Roman that he had lost the gun. Pasqual explained that
the police pulled them over right after he had asked Roman for the ammunition. Roman
said that the police had been “hot yesterday,” which meant they had a heavy presence in
the area.
Later that morning, Pasqual and Rodriguez were together and spoke with Silva.
Pasqual said that he knew where the gun was and that the police had not found it: “I
remember w[h]ere I threw it at[,] fool[,] because it was, once the cops started chasing me
I threw it and shit. I know where[,] fool. And they are stupid[,] fool. It landed right in
front of their face and they didn’t even see it.” Pasqual cautioned Silva to stay away and
to hide his truck. Silva said the police did not take down his license plate number, but
Pasqual thought they might have, and Silva opined that if the police did not find the gun
they would have no case against him.
Pasqual was convicted of active participation in a criminal street gang (count 13)
and conspiracy to commit murder (count 11), with count 11’s gang enhancement under
section 186.22, subdivision (b) found true. Saul was not charged in conjunction with this
incident.
D. Baby Shower Incident, February 3, 2007 (Charges Against Saul)
On February 2, 2007, at 5:16 p.m., Pasqual told Arellano that a person wearing a
blue hat in a white car had shot at him and Roman. Roman then described the shooter
and the car, a Honda, to Arellano. At 5:32, Pasqual described the shooting and the
shooter to Saul. When they spoke again a few minutes later, Saul said that he was not
going to call the police but would “handle this myself.”
7
A series of phone calls followed concerning arrangements for guns and
ammunition. By 5:45 p.m., Silva and an associate spoke about the shooting and
discussed having “something over there” that belonged to Garcia by the next day. At
7:20 p.m., Lozano and another person discussed the shooting attempt and where the
“mini,” a mini assault rifle, was. At 7:53 p.m., Pasqual described the details of the
shooting to Lozano, and Lozano said that he was trying to get Pasqual a weapon
immediately. Pasqual said he had already borrowed one, but Lozano said that he would
try to get one for him so that he did not have to borrow one. Pasqual reported that he was
standing guard in the neighborhood looking for a white Honda.
Shortly before 8:00 p.m., Lozano told Rodriguez that he had all the “banana ones,”
meaning a long magazine called a banana clip. They discussed that Carlos Montelongo, a
friendly member of the Florencia gang, had the mini-K, the mini assault rifle. Soon
afterwards, Rodriguez asked Lozano if the banana clips were loaded. Lozano confirmed
that they were, and told Rodriguez to see a person called Mono to get them. Lozano
instructed Rodriguez to retaliate: “[T]ag them mother fuckers, fool. Don’t let them
niggas go on y[a’ll’s] block and bust on y[’all].”
At 8:13 p.m., Rodriguez asked Lozano to call Mono so that Rodriguez and
Montelongo could go pick up a “banana” from him. Lozano then instructed Roman to
call Mono and “tell him to take out the two clips he has there for the ‘mini[]’. The
homies are going to pick it up right now.” At 8:22 p.m., Roman said Mono would have
the clips ready, and Lozano and Roman discussed sending the twins or Rodriguez to pick
them up from Mono.
At 8:56, Saul told Montelongo, “Let’s go cause some damage[,] fool.” To “cause
damage” meant to perform a gang-related shooting. Montelongo told Saul that he felt
like causing some damage, and that Saul could use the nine-millimeter handgun while he
would use the mini assault rifle. Montelongo said he wanted to “serve those fools,”
meaning to shoot them. Montelongo said he needed a stolen car, and Saul told
Montelongo to “hit him up” once he had one.
8
Later that evening, Lozano checked in with Rodriguez. Rodriguez said he was
standing guard but nothing was happening. Rodriguez mentioned that Montelongo had
the mini-K. Lozano told Rodriguez that if he needed anything, or if it got “hot” where he
was, he could come over.
The following evening, February 3, 2007, at 6:04 p.m., Saul told Rodriguez that
Montelongo wanted a stolen vehicle, and that he and others were going to pick up
Rodriguez. A minute later Saul told Rodriguez they were about to leave, and Rodriguez
told them to call when they had reached a certain location. By 7:06 p.m. Saul and
Rodriguez were in one vehicle, while Montelongo was in another. Saul asked
Montelongo where he wanted them to “roll out,” and Montelongo said that they should
park on Cherry Street and wait for him because he had “the heat.” At 7:12 p.m.,
Montelongo told Saul to leave for Cherry Street, and that he was going to “just make sure
[they’re] out there[,] fool[,] and we’re going to roll right now.” At 6:18 p.m.,
Montelongo told Saul where to park. At 6:19 p.m., Montelongo told either Saul or
Rodriguez to come out so that they could “plan this shit out right quick.”
At 8:05 p.m., Rodriguez asked Roman for the mini assault rifle, and a minute later
asked a person known as “Shanky” to hold it. Rodriguez told Shanky he was with one of
the twins and Montelongo.
At 8:20 p.m., Saul and Pasqual spoke. Pasqual asked Saul if he had the AK-47
assault rifle with him, and he advised Saul that if he were to get caught he should make
sure that Rodriguez took the blame. At 8:39 p.m., Montelongo told Saul that if he saw
“those niggers,” he should shoot them, but that he should make sure no one else was
around.
Later that evening, Montelongo and his girlfriend Laura Marquez picked up Saul
and Rodriguez in Montelongo’s van. They dropped off Saul and Rodriguez, who then
stole a red car and followed Montelongo. Montelongo pointed at a house on East Bliss
Street and told Marquez it was the house they were going to shoot. Marquez heard two
shots. Saul and Rodriguez ran back to the van. Saul had been shot in the buttocks.
Montelongo began to drive to the hospital, but he was stopped by police who were on the
9
scene because they anticipated a drive-by shooting based on the wiretapped
communications. Montelongo, Marquez, Rodriguez, and Saul were in the van when it
was stopped. A loaded mini-14 rifle and .223-caliber ammunition were found in the van,
and there were bloodstains on the back bench seat.
Marquez told the police that the people in the van had just been involved in a
drive-by shooting. She directed them to the house at 2227 East Bliss Street. Marquez
told the police that Saul said that he wanted to shoot someone at that house. She said that
she saw Saul, who was the passenger in the red car, shoot once at the Bliss Street
residence. Marquez identified an abandoned red Honda to the police as the car that Saul
and Rodriguez had used.3 The owner of the East Bliss Street house told police that
people in the red car had fired upon him and that he had fired back.
In conjunction with these events, Saul was charged with conspiracy to commit
murder (count 14), active participation in a criminal street gang (count 15), and two
counts of attempted murder (counts 21 and 22). Pasqual was not charged in connection
with this incident.
In his opening statement, the prosecutor played recordings of six of the telephone
calls intercepted by the wiretap on February 2 and 3, 2007, and he also asserted that Saul
fired at least one shot and was found with gunshot residue on his hands. Later in the trial,
before the presentation of evidence concerning these counts, the prosecutor advised the
court that he had learned that Alfredo Vargas, the owner of the East Bliss Street home,
now admitted that he had lied to the police and in prior testimony. Vargas now reported
that no one had shot at his family on February 3, 2007, and that his neighbor was the one
who had fired on the red car.
3 At trial, Marquez stated that she had not seen Saul shoot at anyone and that she
had lied to the police. She also testified that she had lied when she told the police that
Saul said he wanted to shoot someone at the East Bliss house. She stated that she had
lied when she testified before the grand jury that she had seen a gun come out from the
red Honda just before the shooting started. Marquez identified several other statements
she had made to the police as false.
10
The prosecutor advised the court that the prosecuting attorneys believed Vargas’s
recantation, that it was consistent with ballistic evidence, and that it appeared that two
relatives of Vargas who were potential witnesses also appeared to have lied, although
they had not admitted it. The prosecutor explained that the People no longer believed
that there had been any attempted murder in the Baby Shower incident and requested that
the two attempted murder charges be dismissed in the interest of justice, but also declared
his intent to continue to proceed on the conspiracy to commit murder charge, count 14.
Saul’s counsel moved for a mistrial on the ground that the prosecutor’s opening
statement and the playing of the six telephone calls during the opening statement
irrevocably prejudiced him. Silva and Pasqual joined in the motion. The trial court
denied the motion but invited Saul to submit a special instruction advising the jury that
although the conspiracy count remained active, any evidence of the defendants shooting
would “go out because the witnesses have recanted, and the evidence supports their
recantation.” Saul’s attorney told the court he would prepare such an instruction, but it
does not appear from this record that he did so. Vargas ultimately testified that he had
lied when he said that the occupants of the red car fired on him and he fired back. He
claimed to have lied to protect his family from other gang members.
Saul testified in his own defense. He testified that he was not a gang member, but
that Pasqual was, and that he and his twin did not get along. Saul said that Pasqual called
him on February 2, 2007, in the recorded call that had been played by the prosecution,
and said that someone had shot at him at their house. Saul was upset because his family
lives there. He did not call the police because he did not trust them. Instead, he accepted
a nine-millimeter handgun from Montelongo so that he could protect his family if the
shooters returned. Saul did not know how to handle guns and had never fired one before.
He returned the gun to the backyard of Montelongo’s house the following day because “I
was scared. I was afraid. I didn’t want to hold the gun.” He never intended to kill
anyone.
Saul testified that on the evening of February 3, 2007, he stole a red Honda with
Rodriguez for a joyride. He had been told that two cars were in the neighborhood, one of
11
which looked like the car from which the shots had been fired at the Campos residence
the day before. Saul and Rodriguez looked for the two vehicles. Saul was looking for
these cars because “I felt like my life was being threatened. They kept passing by my
house. They kept passing all through there, you know, like they want to do something.”
He thought they would “probably shoot at [his] house again,” and he wanted to scare
them off by jumping out and possibly fighting them. He had no idea that Montelongo
was looking for a gun that night. As they drove down East Bliss Street, Saul was shot.
He panicked and ran away. After running some distance and hiding in a house, he waved
down Montelongo’s van. Rodriguez was already in the van.
Saul was convicted of conspiracy to commit murder (count 14), with the gang
enhancement allegation under section 186.22, subdivision (b) found true; and two counts
of active participation in a criminal street gang (counts 15 and 16).
E. Sentencing
The Camposes were sentenced together. At the sentencing hearing, held in August
2014, Pasqual presented the live statement of a teacher who had worked with him after
his arrest. She spoke about the need to treat juvenile offenders differently than adult
offenders; endorsed then-pending legislation concerning juvenile sentencing; requested
that Pasqual be given a second chance; and emphasized his youth and immaturity at the
time of the offenses.
Counsel for both brothers urged the court to impose the two 25-year-to-life
sentences concurrently rather than consecutively. Counsel for Saul argued that
consecutive 25-year-to-life sentences would be the functional equivalent of sentences of
life in prison without parole. Pasqual’s attorney reminded the court of the boys’ ages at
the time of the crimes, noted that new laws about parole for juveniles contemplated
differentiating children of the boys’ age from other defendants, and argued that the court
could and should impose concurrent sentences on the two conspiracy to commit murder
counts. In Pasqual’s case, counsel noted, there would also be an additional sentence for
12
his conviction on count 5, and he asked the court to impose a total sentence of 28 years, 4
months to life in state prison for Pasqual.
The court asked the prosecutor to address the issue of the defendants’ age. The
prosecutor acknowledged that the defendants’ age was a factor militating in favor of
concurrent sentencing, but argued that all other factors supported the imposition of
consecutive sentences. One of the major factors in determining whether to impose
concurrent or consecutive sentences, the prosecutor observed, was whether the crimes
were independent in nature. Here, there were four separate crimes over a span of some
months, each with distinct victims and separate mechanisms for the crimes’ execution.
The threat of bodily harm was great in each incident, as both Saul and Pasqual were
personally armed with firearms. They also intended to carry out drive-by shootings,
crimes which leave victims particularly vulnerable.
The prosecutor argued that both Pasqual and Saul had been active participants who
showed substantial planning to coordinate the intended attacks and to identify specific
targets. Pasqual provided the firearm in one conspiracy, a weapon he obtained by
inducing Roman to participate. In the other conspiracy, Saul had induced Montelongo to
participate by suggesting they “cause some damage,” and then Saul encouraged him to
steal a car for their drive-by shooting. The prosecutor concluded that despite their youth,
both Pasqual and Saul had shown “great sophistication and independent instances with
preparation and an enormous threat of harm.” Pasqual, moreover, had attempted to
capitalize on his juvenile status in the course of the crimes: knowing that he was a
juvenile, he took the gun and ran from an adult gang member to insulate the adult gang
member from criminal liability. The prosecutor argued that these aggravating factors
outweighed the Camposes’ age. “They show a lot more poise, planning, and
sophistication and potential for danger than other boys their age. They acted like
dangerous men in these cases, not like boys.”
The court asked whether consecutive sentencing would result in sentences
functionally equivalent to life without parole. The prosecutor responded that the only
difference between consecutive sentences in the case and a life sentence was “a 60-year-
13
old can parole.” The court said it believed that consecutive sentences for the Camposes
would constitute a functional equivalent of life without parole: “I don’t have any choice
in the matter. It’s not that I want to, it’s that I believe that’s what the law is.”
The court then sentenced Saul to two concurrent sentences of 25 years to life in
state prison (counts 1 and 14). The court stayed the 10-year gang enhancement on count
1 and three high terms on counts 3, 15, and 16. The court sentenced Pasqual to two
concurrent sentences of 25 years to life in state prison (counts 1 and 11), with the 10-year
gang enhancement on count 1 stayed. The court imposed a concurrent high term
sentence on count 5, with a mid-term sentence on the gang enhancement on that count;
and imposed but stayed high term sentences on counts 3, 7, 13, and 16. The court
identified six aggravating factors and one mitigating factor, the defendants’ age, in
selecting the high term sentences. The court awarded custody credits and imposed
various fines and fees for each defendant. Both Saul and Pasqual appeal.
DISCUSSION
I. Denial of Saul’s Mistrial Motion
During the prosecutor’s opening statement, while discussing the Baby Shower
incident, the prosecutor played recordings of six telephone calls intercepted by the
wiretap on February 2 and 3, 2007, and stated that Saul fired at least one shot while
traveling past the Vargas residence on February 3, 2007. During the trial, before the
presentation of evidence concerning the incident, the prosecutor advised the court that
Vargas had recanted and now stated that no one had fired from the car. Vargas now
claimed that his neighbor had fired on the red car. The prosecutor requested that the two
attempted murder charges be dismissed in the interest of justice, but intended to proceed
on count 14, the charge of conspiracy to commit murder.4
Saul moved for a mistrial on the ground that the prosecutor’s assertion that he had
fired a shot and the playing of the telephone calls during the opening statement
4 Count 15, active participation in a criminal street gang, also survived, although the
parties do not discuss it on appeal.
14
irrevocably prejudiced him. Defense counsel argued that because the jury had been told
that a shooting occurred and that Saul fired at least one round, and because the calls were
played for the jury, “[t]hat evidence has been placed in front of the jury,” and there was
no way an instruction could cure the prejudice from the erroneous assertion that a shot
was fired from the red car. Counsel argued that the jurors “are going to go back into the
jury room at the end of this trial wondering what the hell happened, why this has been
dismissed but remembering that the evidence is that he committed the crime.” The
prosecutor argued that an opening statement is not evidence and no evidence had been
placed before the jury; and advised the court that the recorded telephone calls that had
been played remained relevant to the charge of conspiracy to commit murder. Co-
defendants Pasqual and Silva joined in the mistrial motion.
The trial court denied the motion for a mistrial but said it would be “happy to”
instruct the jury with an instruction prepared by counsel stating that although the
conspiracy count remained active, evidence that the defendants fired a gun would “go out
because the witnesses have recanted, and the evidence supports their recantation.” Saul’s
attorney said he would prepare a special instruction but apparently did not do so.
Saul argues that the trial court abused its discretion and denied him a fair trial
when it denied his motion for a mistrial, and that his conviction on count 14 for
conspiracy to commit murder therefore should be reversed. He contends that the
recorded telephone calls that were played to the jury were irrelevant because Vargas
recanted and counts 21 and 22 were dismissed. Saul also argues that a mistrial was
required because of the prosecutor’s statement that Saul fired a gun at the Vargas house.
He argues that the “false impression” that Saul shot at the Vargas home, when combined
with evidence presented at trial that gunshot residue was found on his hands, foreclosed
the jury’s consideration of Saul’s defense that he had no intent to kill anyone.
The trial court did not abuse its discretion. A trial court should grant a motion for
mistrial if the defendant’s chances of receiving a fair trial have been irreparably damaged
and the error is incurable through admonition or instruction. (People v. Wallace (2008)
44 Cal.4th 1032, 1084.) When the prosecutor gave his opening statement, his assertion
15
that the evidence would show that Saul shot at the Vargas house was properly presented,
as it pertained to counts 14, 15, 21, and 22. Later in the trial, before the evidence relating
to the Baby Shower incident was presented to the jury, the prosecution learned that
Vargas had recanted and, on the understanding that Saul had not in fact shot at the Vargas
home, promptly requested the dismissal of the two attempted murder counts that
pertained to the Baby Shower incident. Although the attempted murder charges relating
to the Baby Shower incident were then dismissed, a charge of conspiracy to commit
murder relating to that incident remained viable, and its viability did not depend on
whether there was an actual shooting or attempted murder. The recorded telephone calls
remained relevant to the surviving charge of conspiracy to commit murder in count 14.
To the extent that any prejudice resulted from the ultimately inaccurate statement
in the opening statement that Saul had fired at least one shot, the trial court’s invitation to
Saul to prepare a special instruction indicates the court’s implicit determination that any
such prejudice could have been cured by such an instruction. Because a special
instruction would have cured any potential harm from the inaccuracy in the opening
statement by informing the jury that the witnesses had recanted their account that a shot
was fired and that the evidence supported their recantation, Saul forfeited his claim by
failing to submit a curative instruction when invited to do so. (People v. Bennett (2009)
45 Cal.4th 577, 611-612.)
Saul argues that if his trial counsel forfeited this issue by failing to draft a special
instruction, that failure constituted ineffective assistance of counsel within the meaning of
Strickland v. Washington (1984) 466 U.S. 668. To establish ineffective assistance of
counsel, Saul must demonstrate that “(1) counsel’s representation was deficient in falling
below an objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the petitioner.” (In re Neely (1993) 6 Cal.4th 901, 908.) We need not
consider whether counsel’s performance was unreasonably deficient because Saul has
not established that he was prejudiced by the failure to draft a special instruction.
16
(See People v. Carrasco (2014) 59 Cal.4th 924, 982.) The jury was instructed with
CALCRIM Nos. 203 and 205, which identified the specific surviving charges against
Saul and informed the jury that the attempted murders charged in counts 21 and 22 no
longer needed to be decided. Saul has not shown that those instructions were insufficient
to dispel any prejudice that arose from the representation in opening argument that Saul
had fired a weapon on February 3, 2007.
Saul also contends that no admonition or instruction could have cured the
prejudice arising from the opening statement because by the time the jury was required to
consider count 14, the jurors had already been “tainted” by hearing in the opening
statement that Saul had fired at least one shot from the vehicle. He argues that the
prejudice arising from the representation in the opening statement that he had fired a
weapon was compounded by the evidence presented at trial: the prosecution “further
muddied the water” by presenting gunshot residue evidence at the trial that demonstrated
that Saul “‘could have fired a gun’ on the night in question.” The expert witness who
performed the gunshot residue testing, however, testified that the residue could have been
deposited on Saul’s hands in multiple ways, such as firing a gun, handling a gun, being in
close proximity to someone who fired a gun, touching a surface with gunshot residue on
it, or some combination of these actions. Whether Saul actually fired a gun was not
important to the prosecution’s theory with respect to count 14, as the prosecutor made
clear at closing: “And the fact that they didn’t get to shoot because they were shot at
doesn’t negate why they went there, what they went there with, how much surveillance
they did of this location, and that there was a specific target identified at a specific
location, and that’s where they were going, and that’s where they went.”
Saul claims that the “jury was left with the impression appellant was a dangerous
person who should be convicted regardless of the facts,” but he does not explain how that
was so when the existence of a conspiracy to commit murder did not depend on whether
Saul fired a weapon on February 3, 2007. Although Saul asserts that CALCRIM Nos.
203 and 205 were insufficient to dispel the prejudice, he has not demonstrated that these
17
instructions were inadequate to cure any prejudice arising from the opening statement in
light of Vargas’s mid-trial recantation.
II. Instructional Issues
A. Denial of Self-Defense Instructions on Count 14
Defense counsel requested self-defense instructions as to count 14, the charge that
Saul conspired to commit murder in the Baby Shower incident on February 3, 2007.
Counsel argued that Saul intended to protect his family and his neighborhood from rival
gang members by driving around the neighborhood to locate and drive out rival gang
members who were there to find someone to shoot. Saul’s counsel argued that Saul was
“a 15-year-old kid who was trying to do what he could do to protect himself and his
loved ones.”
The prosecutor argued that the principles of self-defense did not encompass the
situation in which a person drives around his neighborhood searching for someone to
shoot; that would be “essentially a ‘get out of jail free’ card because I am in some
amorphous self-defense area protecting my family; therefore, I can shoot anybody I
want.” The prosecutor pointed out that such a construction of self-defense would be a
“really, really bad policy.” The prosecutor reiterated that there was no “global self-
defense as a gang member that exonerates you from future crimes and preemptive strikes
against your rivals,” and argued that because the two attempted murder charges in counts
21 and 22 were dismissed, self-defense instructions were not appropriate. The trial court
agreed that self-defense instructions were not warranted: “To allow gang members who
are engaged in a constant warfare with their rifles because of any incident to say they can
then arm themselves and plan to shoot[] to remove that threat is not a self-defense
argument.”
Defense counsel asked the court whether the court was “talking about a policy,”
and the court responded that it was. Counsel acknowledged the court’s concern about the
message being communicated by the availability of the instruction but argued that jury
instructions warranted by the evidence should not be denied as a matter of policy. The
18
trial court clarified that even in the context of “continuing warfare between gang
members,” self-defense could be available on appropriate facts: “Now, had somebody
actually shot and may have returned fire that day because they have a fear, and you had
the evidence to support it based on testimony or in this case wiretaps, I am not saying you
couldn’t apply self-defense to an actual shooting event. But to try to apply it to a
conspiracy just doesn’t wash” because it would be tantamount to giving a “get out of jail
free card.” “Gangs are in constant warfare with each other,” the trial court noted. “[Y]ou
can’t create the situation to make self-defense applicable. And if you want to take it to its
logic[al] conclusion, that’s what gang warfare is. It’s creating the thing. We’re always
going to be at war; we’re always going to be doing acts against each other. Therefore,
you don’t get to use self-defense.”
Saul argues that the trial court committed reversible instructional error with
respect to count 14 when it declined to give instructions on self-defense and imperfect
self-defense. The trial court “must instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s understanding of the case.”
(People v. Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) That duty extends to
instructions on the defendant’s theory of the case, “including instructions ‘as to defenses
“‘that the defendant is relying on . . . , or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the defendant’s theory of the
case.’”’” (People v. Abilez (2007) 41 Cal.4th 472, 517.) On appeal of the denial of a jury
instruction, we review the record de novo to determine whether it contains substantial
evidence to warrant the rejected instruction. (People v. Manriquez (2005) 37 Cal.4th
547, 581, 584.)
Homicide is justified when it is committed in self-defense, that is, when the
defendant actually and reasonably believes in the need to defend against imminent bodily
injury or death. (People v. Elmore (2014) 59 Cal.4th 121, 133-134; §§ 197, 198.)
Imperfect self-defense arises when a defendant has an actual but unreasonable belief in
the necessity to defend against the imminent danger of suffering great bodily injury or
being killed. (Elmore, at p. 134.) Imperfect self-defense negates the element of malice.
19
(Ibid.) Because a conspiracy requires express malice, both perfect and imperfect self-
defense appear to be a complete defense to a charge of conspiracy to commit murder.
(See People v. Cortez (1998) 18 Cal.4th 1223, 1237; People v. Battle (2011) 198
Cal.App.4th 50, 75 [“a conspiracy to commit murder is always a conspiracy to commit
first degree murder and provocation cannot reduce it to a conspiracy to commit second
degree murder”].)
There was no substantial evidence to support self-defense instructions on count 14.
Specifically, there was no evidence showing that at the time Saul conspired with his
associates he reasonably and/or actually believed that he was, or that third parties were, in
imminent danger of suffering great bodily injury or being killed and that he had to
immediately use deadly force to defend against the danger. The evidence showed that
Saul conspired to kill rival gang members on February 2 after his brother was fired upon,
but that he did not go looking for rivals until the following night. He chose not to call the
police after some rival gang members fired shots outside his home, saying that he would
handle the situation himself instead. He handled the situation by agreeing over the phone
to murder rival gang members. There was no evidence that at the time he did so Saul was
in imminent danger of being shot or had any cause to believe he had an immediate need
to use deadly force. He and other gang members began planning to retaliate, arranging
for weapons, ammunition, and a stolen car, all of which they had acquired by the
following night when they went out looking for rivals to confront or kill. This evidence
is inconsistent with self-defense. “Fear of future harm—no matter how great the fear and
no matter how great the likelihood of the harm—will not suffice. The defendant’s fear
must be of imminent danger to life or great bodily injury. ‘“[T]he peril must appear to the
defendant as immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.” . . . [¶] This
definition of imminence reflects the great value our society places on human life.’
[Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm.”
(In re Christian S. (1994) 7 Cal.4th 768, 783, italics original.) Although Saul describes
himself as riding around on February 3, 2007, looking for suspicious cars, focusing
20
purely on protection, and believing that rival gang members would “probably” shoot at
his house again in the future, he does not identify any evidence that he acted under the
fear of imminent danger to life or great bodily injury when he entered into the conspiracy.
Saul argues that there is “no authority for denying a defendant self-defense or
imperfect self-defense instruction because he is (a) a gang member and/or (b) he is a gang
member caught in warfare with rival gangs.” While the court did discuss the policy
implications of permitting gang members to assert self-defense with respect to a
conspiracy to commit murder within the context of ongoing inter-gang violence, our
review is confined to the correctness of the trial court’s ruling, not its reasoning. (People
v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) Here, because there was no substantial
evidence that Saul conspired to commit murder as charged in count 14 under the belief
that he was in imminent danger of suffering great bodily injury or being killed and that he
had to immediately use deadly force to defend against the danger, the trial court properly
declined to give self-defense instructions.
B. Denial of Requested Special Instruction That Criminal Liability Cannot
be Based Solely on Membership in a Group
Pasqual requested that the trial court instruct the jury that “[c]riminal liability
cannot be based solely on the membership [in] a group.” The court refused to give the
instruction because it was “liable to confuse the jury with how you prove membership in
a gang, for what purpose you prove it, what is allowable, what is not allowable.” The
court said that those matters were already covered clearly by the instructions and that the
proposed instruction was argumentative. Pasqual argues that the court erred when it
refused to give his proposed instruction and that his convictions for active participation in
a criminal street gang (counts 3, 7, 13, and 16) must be reversed as a result.5
5 Saul joins in Pasqual’s argument and asserts that his “rights were equally affected
by the trial court’s decision not to instruct the jury that criminal liability cannot be based
solely [on] group membership.” Although Saul does not specify which of his criminal
convictions he claims to have been affected by the denial of this instruction, we presume
21
While the trial court must instruct on general principles of law that are relevant to
the issues raised by the evidence and necessary for the jury’s understanding of the case
(Martinez, supra, 47 Cal.4th at p. 953), the court “may refuse a proffered instruction that
is incorrect, argumentative, or duplicative.” (People v. Boyce (2014) 59 Cal.4th 672,
706.) Pasqual’s proposed jury instruction was duplicative of CALCRIM No. 1400.
Although the proposed instruction referred generally to membership in a “group,”
the only group relevant to a violation of section 186.22, subdivision (a) is a criminal
street gang. Both currently and at the time of the charged offenses section 186.22 has
provided that “[a]ny person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by imprisonment in a county jail for
a period not to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.” (§ 186.22, subd. (a).)
CALCRIM No. 1400 is the pattern jury instruction given when a defendant is
charged with violating section 186.22. As given in this case, CALCRIM No. 1400
provides that for a defendant to be guilty of the crime of active participation in a criminal
street gang, the People must prove: “1. The defendant actively participated in a criminal
street gang; [¶] 2. When the defendant participated in the gang, he knew that members
of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND
[¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal
conduct by members of the gang either by: [¶] a. directly and actively committing a
felony offense; [¶] OR [¶] b. aiding and abetting a felony offense.” Among the many
definitions in the instruction is the explanation that “[a]ctive participation means
involvement with a criminal street gang in a way that is more than passive or in name
only.” Mere presence at the scene of a crime or the failure to prevent it, the instruction
that he also challenges his convictions for active participation in a criminal street gang
(counts 3, 15, and 16).
22
notes, is insufficient on its own to make a person an aider or abettor for the purposes of
this offense.
CALCRIM No. 1400 instructed jurors that for Saul or Pasqual to be convicted of
violating section 186.22, subdivision (a), not only did he have to actively participate in a
criminal street gang with the requisite knowledge of the gang’s pattern of criminal
activity, but also he had to willfully assist, further, or promote felonious criminal conduct
by members of the gang either by directly and actively committing a felony offense or by
aiding and abetting a felony offense. This instruction accurately and thoroughly
informed the jury of the legal requirements for a conviction of this offense, and it
precluded the jury from finding the defendants guilty of violating section 186.22,
subdivision (a) based solely on mere membership in or affiliation with a criminal street
gang. The trial court did not err in refusing the proposed jury instruction.
C. CALCRIM No. 563
Saul, joined by Pasqual, argues on appeal that as given here, the jury instruction
on conspiracy, CALCRIM No. 563, removed issues from the jury’s consideration and
deprived the jury of its fact-finding role by declaring that the defendants committed overt
acts with the intent to kill. Specifically, they argue that on count 1, one of the overt acts
alleged to have been undertaken in furtherance of the conspiracy was that Pasqual and
Silva searched for rival gang members “to shoot and kill,” and another listed overt act
alleged that Pasqual and Silva telephoned Saul and Roman and directed them to a
location where they could find a rival gang member “for the purposes of killing the rival
gang member.” Additionally, Saul challenges the inclusion in count 14 of the alleged
overt act that Saul, Rodriguez, and Montelongo drove into rival gang territory “to find
rival gang members to shoot and kill.” According to Saul, these passages in the jury
instruction improperly instructed “the jury that defendants undertook the acts with the
intent to kill.”
We conclude that there is no reasonable likelihood that the jury understood
CALCRIM No. 563 in the manner asserted by the Camposes. (People v. Cole (2004) 33
23
Cal.4th 1158, 1212.) CALCRIM No. 563 advised the jury that to prove that a defendant
was guilty of conspiracy to commit murder, the People were required to prove, among
other elements, that the defendant committed at least one of a list of alleged overt acts
pursuant to the agreement to kill. The passages of which appellants complain were all
alleged among the possible overt acts. CALCRIM No. 563 did not instruct the jury that a
defendant had taken any of the actions listed or that he had any specific intent; instead, it
advised the jury that for the People to prove that the charged defendant was guilty of
conspiracy to commit murder, the People were required to prove that a defendant
undertook one or more of those overt acts. Where, as in the examples set forth above, the
overt act alleged the actor’s intention, it is clear from a reading of the full jury instruction
that the jury was charged with determining whether the People had proven both that the
act was undertaken and that it was undertaken with the specified intent. There is no
reasonable likelihood that the jurors would have understood CALCRIM No. 563 as
instructing them what the actors’ intents were rather than placing before them the
question of whether the People had proven the acts and intents in question. Appellants
have not established any error in CALCRIM No. 563 as given with respect to counts 1
and 14.
III. Sufficiency of the Evidence
A. Count 1, Conspiracy to Commit Murder
Saul asserts that the evidence was insufficient to support his conviction on count 1
for conspiracy to commit murder in the Lucio Amparo incident. “‘When considering a
challenge to the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing
24
court ‘presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.]” (People v. Edwards (2013) 57
Cal.4th 658, 715, italics omitted.)
“One who conspires with others to commit a felony is guilty as a principal. (§ 31.)
‘“Each member of the conspiracy is liable for the acts of any of the others in carrying out
the common purpose, i.e., all acts within the reasonable and probable consequences of the
common unlawful design.” [Citations.]’ [Citation].” (In re Hardy (2007) 41 Cal.4th
977, 1025-1026.) A conspiracy conviction requires proof that the defendant and one or
more other persons had the specific intent to agree or conspire to commit an offense, as
well as the specific intent to commit the elements of that offense, and proof of the
commission of an overt act by one or more of the parties to the agreement in furtherance
of the conspiracy. (People v. Smith (2014) 60 Cal.4th 603, 616.) The elements of
conspiracy may be proven with circumstantial evidence. (People v. Vu (2006) 143
Cal.App.4th 1009, 1024 (Vu).)
Saul contends that there was no evidence that he had the intent to conspire or the
intent to commit murder. “Because there rarely is direct evidence of a defendant’s intent,
‘[s]uch intent must usually be derived from all the circumstances of the attempt,
including the defendant’s actions.’ [Citation.]” (Vu, supra, 143 Cal.App.4th at p. 1025.)
We conclude that the evidence was sufficient to support Saul’s conviction on count 1.
The first evidence of the conspiracy was a telephone call on December 13, 2006,
in which Pasqual asked Roman where to find a gun because he had seen one or more
rival gang members near his school. When Roman said that he had the gun, Pasqual
directed him to bring it quickly to him at his home. In response to this intercepted call,
law enforcement officers traveled to the area, disrupting the planned transfer. Shortly
thereafter, Roman called Pasqual to say that he was still at home because the police were
nearby, frustrating Pasqual because a rival gang member was “set up in target.”
Although Saul was not a speaker during these calls, his later conduct and statements
permitted the jury reasonably to infer that at some point Pasqual or Roman apprised Saul
of the situation and that he was part of the plan.
25
On December 15, 2006, at 9:35 p.m., Roman said he was with Pasqual and Saul,
and told an unidentified person to call if he saw any suspicious cars. At 10:04 p.m.,
Pasqual told Roman he had spotted a rival gang member who was “slipping,” or not
paying attention to his surroundings, and that he was a potential target as long as Roman
did not mind shooting a woman too. The next minute, Pasqual directed Roman where to
find the target, again noting that he would need to “not mind shooting” a woman. Saul,
Pasqual, and Roman had difficulty putting their plan together. They discussed the exact
location of the targeted rival gang member on the specified street, with Pasqual
describing to an inquiring Saul and Roman where to find him. Saul asked whether the
target was in the middle of the block. Eventually, one of the three said to come back
because they were making things too complicated.
At 10:07 p.m., Saul and Silva spoke, and Silva gave Saul directions similar to
those that Pasqual had previously given to the location of the rival gang member. Silva
told Saul that the target would be on the right-hand side of the street “two houses down[,]
he’s right there outside with a hyna[,] fool.” Silva assured Saul that “everything” was
“quiet,” and that they would not know what was coming. Silva told Saul that he was in
the area already and that Saul should tell him “if you guys are going . . . that way I [can]
get behind you guys.” Saul, apparently uncertain as to the directions, instructed Silva to
“come back” to “explain better.” Silva responded, “You ain’t gonna do it, huh[?] [All
]right, fuck it[,] don’t do it then[,] man, fuck it then.” Saul answered, “Just come over
here[,] fool[,] so we can do [it].” Within approximately one hour, Roman shot Amparo.
These recorded conversations provided substantial evidence showing Saul had the
intent to agree or conspire, and the intent to carry out the murder of a rival gang member.
Although Saul did not participate in the initial discussions of guns and rivals, he actively
participated in the attempt to locate the targeted gang member on the night of the
shooting, and the jury could reasonably infer from Saul’s active involvement and his
relationship with the other participants that he had agreed with the others to conspire to
commit murder and that he had the specific intent to commit murder. “Evidence is
sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the
26
parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy. [Citations.]’ [Citation].” (People v. Rodrigues (1994) 8 Cal.4th 1060,
1135.) Saul argues that his conversation with Silva shows that he was not in agreement
with the plan to shoot the rival gang member and his female companion and that he
lacked the necessary intent to support a conspiracy conviction. This claim of
disagreement is belied by Saul’s final exhortation to Silva to come over “so we can do
[it].” Moreover, the jury could consider the completed shooting as evidence that Saul had
entered into a conspiracy to commit the crime. (See Vu, supra, 143 Cal.App.4th at
pp. 1024-1025.)
B. Count 11, Conspiracy to Commit Murder
Pasqual was convicted of conspiracy to commit murder in the Ladybug incident.
He argues that the People failed to prove that he had entered into an agreement to kill
anyone, and that the prosecution relied on the faulty assumption that because all the
actors were gang members, their attempt to transport a gun meant that they intended to
commit murder. Pasqual argues that inferences may not be based on suspicion and must
be grounded in evidence rather than speculation. (People v. Morris (1988) 46 Cal.3d 1,
21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
He observes that mere association and suspicion of criminal conduct is not enough to
establish a conspiracy and that there must be some evidence that the association is also a
conspiracy. (People v. Tran (2013) 215 Cal.App.4th 1207, 1221.)
The evidence was sufficient to permit a reasonable jury to conclude beyond a
reasonable doubt that Pasqual conspired to commit murder. On January 19, 2007, Saul,
Roman, Anthony and Rene Rivera, Soltero, and Silva extensively discussed acquiring
guns, ammunition, and a car to attack members of a rival gang. Silva and the Campos
brothers were identified as possible transporters of Soltero’s weapon. Anticipating that
Pasqual and Silva were going to transfer a firearm, the police intervened; Pasqual fled
27
with a firearm. The next day, February 20, 2007, Pasqual said that the weapon he had
possessed was the nine-millimeter handgun he had obtained from Soltero, and he stated
that he had been about to get some ammunition and commit a shooting when the police
appeared. A jury could reasonably conclude from this evidence that Pasqual participated
in the conspiracy to commit murder.
IV. Sentencing Issues
A. Eighth Amendment
Saul and Pasqual argue that their sentences of 25 years to life in state prison
constitute cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution. The Eighth Amendment prohibits mandatory sentences of
life without parole for juvenile offenders. (Miller v. Alabama (2012) ___ U.S. ___, 132
S.Ct. 2455, 2469 (Miller).) In Miller, the Supreme Court explained that imposing
mandatory life sentences without parole on a juvenile offender “precludes consideration
of his chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have affected him. Indeed, it
ignores that he might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability to deal with police
officers or prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility
of rehabilitation even when the circumstances most suggest it.” (Id. at p. 2468.)
Based on Miller, supra, ___ U.S. ___, 132 S.Ct. 2455, the California Supreme
Court has held that the Eighth Amendment also prohibits states from sentencing a
juvenile convicted of a nonhomicide offense “to a term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life expectancy” and thus is the
28
functional equivalent of a life without parole sentence. (People v. Caballero (2012) 55
Cal.4th 262, 268 (Caballero.) More recently, the California Supreme Court decided in
People v. Franklin (May 26, 2016, S217699) 63 Cal.4th 261 (Franklin) that recent
California laws affording earlier parole hearings to youth offenders mooted claims that
their sentences violated Miller as functional equivalents of life sentences without parole.6
Saul and Pasqual were each convicted of two counts of conspiracy to commit
murder, as well as other crimes. Although the sentencing statutes would have permitted
the trial court to sentence each defendant to two consecutive prison terms of 25 years to
life, because both Saul and Pasqual were juveniles the trial court elected to impose all
sentences concurrently so that each was sentenced to a total of 25 years to life in state
prison. The trial court selected concurrent sentencing because it believed that to impose a
sentence of 50 years to life without the possibility of parole on these juvenile offenders
would be the functional equivalent of imposing a life sentence without the possibility of
parole. As Saul and Pasqual were each sentenced to prison terms of 25 years to life, they
will be entitled to consideration for parole long before the end of their natural life
expectancy. (§§ 3046 [general parole eligibility provisions for inmates serving life
sentences], 3051, subd. (b)(3) [entitlement to youth offender parole hearing for offenders
who were under the age of 23 years at the time of the offense and who are serving life
terms of 25 or more years to life].) Their sentences therefore, do not violate Miller,
supra, ___ U.S. ___, 132 S.Ct. 2455 or Caballero, supra, 55 Cal.4th 262.
Saul and Pasqual do not contend that they were sentenced to life imprisonment
without parole or its functional equivalent. They argue, however, that the court erred
when it sentenced them to concurrent 25-year-to-life sentences for the two counts of
conspiracy to commit murder because the court failed to consider the special
characteristics of juvenile offenders and to make an individualized assessment of the
6 The initial briefing in this case concluded prior to the issuance of the Franklin
decision. The parties submitted supplemental briefing on the impact of this decision on
Saul and Pasqual’s Eighth Amendment arguments.
29
appropriate punishment, taking into account their youth, immaturity, and impetuosity;
their failure to appreciate risks and consequences; their family and home environment;
the circumstances of the crime, including the extent of their participation and the way that
familiar and peer pressures may have influenced them; the possibility that the juvenile
could have been charged and convicted of lesser offenses if it were not for
incompetencies associated with their youth; and the possibility of rehabilitation. They
argue that sentencing them to 25 years to life in prison “without an exercise of the court’s
discretion through application of the Miller factors” violates the Eighth Amendment.
Unlike the trial court that was mandated by law to impose consecutive sentences
in Franklin, supra, 63 Cal.4th at p. 272, here the court had some sentencing discretion.
Although the Camposes were subject to a sentence of 50 years to life or more, based on
the court’s understanding of Caballero, supra, 55 Cal.4th 262 and the parties’ arguments
about the facts related to the defendants’ youth, the court exercised its discretion to
impose significantly lesser, though still lengthy, sentences here. In fact, Pasqual was
sentenced to a shorter minimum term of imprisonment than his attorney had advocated:
his attorney argued that Pasqual should be sentenced to 28 years, 4 months to life in state
prison, but the court elected to sentence him to a total of 25 years to life. This record
demonstrates that the court did in fact consider the Camposes’ youth, and, implicitly, the
special characteristics of juvenile offenders, in making its individualized determinations
of the appropriate sentences for them.
Finally, in their supplemental briefing, Saul and Pasqual request that this court
order further proceedings pursuant to Franklin, supra, 63 Cal.4th at pages 284-285. In
Franklin, the California Supreme Court remanded the case to the trial court because it
was not clear that the defendant had been afforded sufficient opportunity at sentencing to
place on the record the type of mitigating evidence that would be useful to the parole
board at his eventual youth offender hearing. (Ibid.) Pasqual asks that we remand the
case for resentencing to the trial court with directions to determine whether he was
afforded a sufficient opportunity to make a record of mitigating evidence tied to his youth
30
which could be relevant to his eventual parole consideration.7 Saul asks for a remand so
that he may make a record of such mitigating evidence for his future youth offender
parole hearing.
Appellants present the question of whether juvenile offenders who are sentenced
to a minimum term of imprisonment that falls substantially below their life expectancy
and thus have not received a sentence functionally equivalent to life in prison without
parole, but whose minimum terms are sufficiently lengthy that their parole hearings will
not occur for many years, should be afforded the opportunity to place on the record
evidence relevant to the parole board’s eventual consideration under Franklin, supra, 63
Cal.4th 261. We need not resolve that question here, however, because it is clear from
the record that the appellants, who were sentenced after the decisions in Miller, supra,
___ U.S. ___, 132 S.Ct. 2455 and Caballero, supra, 55 Cal.4th 262, were afforded the
opportunity to present mitigating evidence at the sentencing hearing. At the start of the
hearing, immediately after the defendants advised the court that there was no legal cause
why judgment should not be pronounced, counsel for Pasqual told the court that he would
like to present a statement to the court. The court responded, “Sure, absolutely,” and a
teacher who worked with incarcerated juveniles then described for the court her
experiences with Pasqual. The teacher told the court she had worked with Pasqual on a
weekly basis for seven years, and that he had transformed from a “cocky little boy hiding
behind some kind of bravado” to a person who “showed his heart.” She declared that she
did not believe Pasqual was a monster or a person to be feared, and she told the court that
he deserved a second chance. She talked about the trend toward re-evaluating juvenile
sentencing and the evolving sense that children should be held to a different standard than
adults, and she expressed a hope that changing sentencing laws would lead to Pasqual’s
release. She concluded, “Children are not adults. They are not to be held to the same
7 Pasqual also asks that we modify the judgment to specify that he will be entitled to
a parole hearing during his 25th year of incarceration, but this is unnecessary as section
3051 is in effect.
31
standard. I spent his 15th, 16th, 17th, and 18th birthday with him in jail. He is a child,
not an adult[,] and should be held to a different standard.” Pasqual’s counsel did not seek
to present further evidence, and Saul’s attorney chose not to present mitigating evidence,
but both attorneys expressly and successfully argued to the court that it should consider
the defendants’ youth at sentencing in light of Caballero. As the record does not
demonstrate or suggest that the trial court placed limitations on the defendants’ ability to
present mitigating evidence, Saul and Pasqual have not established that they lacked the
opportunity to present this evidence such that a remand would be warranted under
Franklin.
B. Fines and Fees
In his opening brief, Saul alleged that the trial court made several errors with
respect to the imposition of fines and fees at sentencing. In his reply brief, however, Saul
acknowledged that the abstract of judgment properly reflects the total fines and fees that
are authorized by law, and there appears to be no remaining dispute on this issue.
C. Custody Credit Calculations
As noted by both Saul and the Attorney General, Saul’s presentence custody
credits were incorrectly calculated. First, Saul was awarded 2,571 days of actual credit,
although the records indicate that he served 2,604 days prior to sentencing.8 Also, he
received 385 days of conduct credits, but under section 2933.1, he was entitled to 390
days of conduct credits. We modify the judgment to reflect that Saul is awarded 2,994
days of presentence custody credits, of which 2,604 days reflect actual days served and
390 are conduct credits.
Pasqual, who joins in Saul’s custody credits argument, also received an incorrect
number of presentence custody credits. Pasqual and the Attorney General agree, as do
we, that Pasqual should have been awarded 2,996 days of presentence custody credit, of
8 The parties calculate Saul’s actual days of credit at 2,603 days based on an arrest
date of September 9, 2007, but Saul’s probation report states that he was arrested on
September 8, 2007.
32
which 2,606 are actual custody credits and 390 are conduct credits (§ 2933.1). We
modify the judgment accordingly.
V. Abstract of Judgment
In our review of this matter, we observed a discrepancy between the oral record of
the sentencing hearing and Pasqual’s abstract of judgment with respect to count 5, assault
with a deadly weapon, and its associated sentencing enhancement pursuant to section
186.22. At the sentencing hearing the court sentenced Pasqual to the upper term sentence
of nine years for the offense, to be served concurrently with his 25-years-to-life sentence
on count 1; and the midterm of three years for the sentence enhancement. Pasqual’s
abstract of judgment, however, states that the sentence for count 5 and its associated
enhancement were stayed under section 654. Where there is a discrepancy between the
court’s oral pronouncement and the minute order or abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The superior
court is directed to prepare a corrected abstract of judgment for Pasqual reflecting the
correct sentence on count 5.
DISPOSITION
With respect to appellant Saul Campos, the judgment is modified to reflect 2,604
days of actual custody credits in addition to presentence credits in the amount of 390
days, for a total of 2,994 days of presentence custody credits. The superior court is
directed to prepare a corrected abstract of judgment for Saul Campos that reflects the
2,994 days of presentence custody credits, and to forward a certified copy of the abstract
of judgment to the Department of Corrections and Rehabilitation.
With respect to appellant Pasqual Campos, the judgment is modified to reflect
2,606 days of actual custody credits in addition to presentence credits in the amount of
390 days, for a total of 2,996 days of presentence custody credits. The superior court is
directed to prepare a corrected abstract of judgment for Pasqual Campos reflecting that
(1) his sentence on count 5 was the upper term of 9 years, to be served concurrently, with
an associated sentence enhancement of 3 years, also concurrent; and (2) his presentence
33
custody credits total 2,996 days; and to forward a certified copy of the abstract of
judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgments are affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
BLUMENFELD, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34
|
{
"pile_set_name": "FreeLaw"
}
|
19‐1378‐cv
City of Birmingham Ret. & Relief Sys. v. Davis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 12th day of March, two thousand twenty.
4
5 PRESENT: REENA RAGGI,
6 RAYMOND J. LOHIER, JR.,
7 STEVEN J. MENASHI,
8 Circuit Judges.
9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10 CITY OF BIRMINGHAM RETIREMENT AND
11 RELIEF SYSTEM, CITY OF BIRMINGHAM
12 FIREMEN’S AND POLICEMEN’S
13 SUPPLEMENTAL PENSION SYSTEM, ON
14 BEHALF OF THEMSELVES AND ALL OTHER
15 PERSONS SIMILARLY SITUATED,
16
17 Lead Plaintiffs‐Appellees,
18
19 v. No. 19‐1378‐cv
20
21 JOHN W. DAVIS,
22
1 Objector‐Appellant.
2 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
3 FOR APPELLANT: C. BENJAMIN NUTLEY, Pasadena, CA.
4
5 FOR APPELLEES: JAMES DAVID DALEY, Robbins Geller
6 Rudman & Dowd LLP, San Diego,
7 CA (Joseph Russello, Robbins Geller
8 Rudman & Dowd LLP, Melville, NY,
9 on the brief).
10 Appeal from an April 10, 2019 judgment of the United States District Court
11 for the Southern District of New York (Naomi Reice Buchwald, Judge).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the District Court is AFFIRMED.
14 Objector‐Appellant John W. Davis appeals from an award of attorneys’
15 fees and expenses in this securities fraud class action, in which the parties
16 reached a settlement agreement resulting in a $50 million Settlement Fund (“the
17 Fund”). Following a hearing, the District Court (Buchwald, J.) overruled
18 Davis’s objection seeking to limit attorneys’ fees to the unenhanced lodestar and
19 awarded attorneys’ fees as a percent of the Fund, plus $435,998.92 in expenses,
20 and interest. We assume the parties’ familiarity with the underlying facts and
The Clerk of Court is directed to amend the official caption as shown above.
2
1 the record of prior proceedings, to which we refer only as necessary to explain
2 our decision to affirm.
3 We review a district court’s fee award for abuse of discretion, reviewing de
4 novo any questions of law. Fresno Cty. Emps.’ Ret. Ass’n v. Isaacson/Weaver
5 Family Tr., 925 F.3d 63, 67 (2d Cir. 2019). The deferential abuse‐of‐discretion
6 standard takes on “special significance” in appeals of attorneys’ fees because
7 “[t]he district court, which is intimately familiar with the nuances of the case, is
8 in a far better position to make [such] decisions than is an appellate court, which
9 must work from a cold record.” Goldberger v. Integrated Res., Inc., 209 F.3d 43,
10 47–48 (2d Cir. 2000) (quotation marks omitted).
11 On appeal, Davis’s primary argument is that the District Court failed to
12 apply any presumption in favor of using the unenhanced lodestar as a
13 reasonable and adequate fee award. We reject this argument. The
14 presumption in favor of the lodestar and the restrictions on lodestar multipliers
15 that apply to fee awards made pursuant to fee‐shifting statutes do not apply in
16 common fund cases like this one. See Fresno Cty., 925 F.3d at 67–68. Under
17 the common fund doctrine, district courts have discretion to apply either the
3
1 lodestar method or the percentage‐of‐recovery method to calculate a reasonable
2 fee. Id. at 68; Goldberger, 209 F.3d at 45, 50. The District Court here used the
3 percentage‐of‐recovery method, under which it had discretion to award a fee
4 “less than, equal to, or greater than the lodestar,” Fresno Cty., 925 F.3d at 68,
5 based on its consideration of six factors: the time and labor expended by counsel;
6 the complexity of the litigation; the risk of the litigation; the quality of
7 representation; the fee requested in relation to the recovery under the settlement;
8 and public policy, see Goldberger, 209 F.3d at 47, 50. Accordingly, the District
9 Court was under no obligation to treat the unenhanced lodestar as the
10 presumptive fee.1
11 Davis also argues that the District Court abused its discretion by failing to
12 adequately state the reasons for its fee award. We reject this argument as well.
13 Far from giving “no reasons” for its decision, Jones v. UNUM Life Ins. Co. of
14 Am., 223 F.3d 130, 139 (2d Cir. 2000), the District Court held a fairness hearing
1 Davis argues that the more restrictive approach to lodestar multipliers under fee‐
shifting statutes should govern as a matter of public policy. That argument is
foreclosed by our caselaw. See 4 Pillar Dynasty LLC v. N.Y. & Co., Inc., 933 F.3d 202,
211 n.8 (2d Cir. 2019) (“We are bound by the decision of prior panels until such time as
they are overruled either by an en banc panel of our Court or by the Supreme Court.”
(quotation marks omitted)).
4
1 during which it heard arguments about the fee request, provided its reasons for
2 rejecting Davis’s objection, and issued a written fee order stating its conclusions
3 with respect to the relevant factors.
4 Finally, Davis argues that the District Court exceeded its discretion in
5 awarding the fee in this case based on the record. Davis does not contest,
6 however, that the record included submissions detailing more than 10,000 hours
7 expended by plaintiffs’ counsel, a complicated procedural and factual history,
8 difficult legal issues, and a settlement amount that was statistically above‐
9 average. On this record, we cannot say that the District Court exceeded its
10 considerable discretion in awarding attorneys’ fees. See Haley v. Pataki, 106
11 F.3d 478, 484 (2d Cir. 1997).
12 We have considered Davis’s remaining arguments and conclude that they
13 are without merit. For the foregoing reasons, the judgment of the District Court
14 is AFFIRMED.
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk of Court
17
5
|
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389 So.2d 516 (1980)
Ex Parte Eva AGEE.
(re Eva AGEE v. Emma GRIFFIN and Ozie Lockett).
79-957.
Supreme Court of Alabama.
October 31, 1980.
FAULKNER, Justice.
WRIT DENIED-NO OPINION.
TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.
|
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683 F.Supp. 484 (1986)
UNITED STATES of America, Plaintiff,
v.
Robert C. ROYER, and Linda L. Royer, Defendants.
Civ. A. No. 82-1071.
United States District Court, M.D. Pennsylvania.
July 16, 1986.
*485 Gordon A.D. Zubrod, Asst. U.S. Atty., Scranton, Pa., Sally A. Lied, Asst. U.S. Atty., Harrisburg, Pa., for plaintiff.
Garry Wamser, Susquehanna Legal Services, Bloomsburg, Pa., for defendants.
MEMORANDUM
CALDWELL, District Judge.
I. Introduction and Background
The parties have cross-moved for summary judgment.[1] The issue presented is whether the federal government obligated itself under the terms of a mortgage to comply with state law before foreclosing on a federally financed mortgage.
On August 31, 1982, plaintiff, United States of America, filed a complaint in mortgage foreclosure on a mortgage issued to the defendants, Robert C. Royer and Linda L. Royer, by the Farmers Home Administration (FmHA). The defendants did not appear or plead and a default judgment was entered against them on January 31, 1984, authorizing foreclosure and sale of the mortgaged property, defendants' residence. Thereafter, defendants sought injunctive relief against foreclosure which was mooted by plaintiff's decision not to press a sheriff's sale of the property. The request for equitable relief was based upon a claim that the government had to comply with a Pennsylvania law, the Act of Dec. 23, 1983, P.L. 385, No. 91, § 2 et seq., 35 P.S. § 1680.401c et seq. (Purdon Supp. 1986), which imposes certain duties on a mortgagee before proceeding to foreclosure.[2]
The government contends it need not comply with this law. Defendants counter that the terms of the mortgage agreement require plaintiff to abide by the state law before foreclosing on the mortgage.
II. Discussion
The relevant provisions of the mortgage are, in pertinent part, as follows:
(17) SHOULD DEFAULT occur ... the government, at its option, with or without notice, may: .... (d) foreclose this instrument as provided herein or by law, and (e) enforce any and all other rights and remedies provided herein or by present or future law.
....
(21) This instrument shall be subject to the present regulations of the Farmers Home Administration, and to its future regulations not inconsistent with the express provisions hereof.
....
(24) Upon default by Borrower as aforesaid, the Government may foreclose this instrument as authorized or permitted by *486 the law then existing of the jurisdiction where the property is situated and of the United States of America, on terms and conditions satisfactory to the Government.
The government contends that these provisions permit it to use state law in foreclosing on a mortgage but do not require it to do so. Plaintiff points out that the only mandatory language is contained in paragraph 21 which provides that the "instrument shall be subject" to FmHA regulations. Those regulations refer to federal law as governing the mortgage. Thus, 7 C.F.R. § 1900.102, provides in subparagraph (a) as follows:
(a) Instruments evidencing or securing a loan payable to or held by the Farmers Home Administration, such as ... mortgages ... shall be construed and enforced in accordance with applicable Federal law.
And section 1900.102(c) again refers only to the permissive use of local procedures:
(c) In order to implement and facilitate these Federal loan programs the application of local procedures, especially for recordation and notification purposes, may be utilized to the fullest extent feasible and practicable.
Hence, the government contends it was free to ignore state procedure in foreclosing on the mortgage and that references to state law in the agreement merely provided the government the option to pursue a state law remedy if desired.
Defendants argue that the contractural provisions bind FmHA to follow Pennsylvania law. The mortgage provides that FmHA may foreclose "as provided herein or by law" (¶ 17(d)). Since the Homeowner's Emergency Assistance Act applies to mortgage foreclosure, FmHA must comply with it. Defendants also argue that plaintiff's interpretation is "absurd" because it: (1) would permit FmHA to follow state law in one mortgage foreclosure and federal law in another; and (2) would, in fact, authorize FmHA to ignore both state and federal law in any foreclosure action.
After careful consideration, we agree with plaintiff's interpretation of the mortgage.
Federal law controls the rights and obligations of the parties to the agreement, see United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), and the regulations quoted above clearly indicate that FmHA intended, among other things, to reserve the right to foreclose on the mortgage in accordance with federal procedures while retaining the right to pursue state remedies at its option. See 7 C.F.R. §§ 1900.102(a) and (c).
FmHA could contractually agree to follow state law. See United States v. Scholnick, 606 F.2d 160 (6th Cir.1979); United States v. Johansson, 467 F.Supp. 84 (D.Me. 1979). We do not, however, read the pertinent mortgage provisions as requiring FmHA to do so. Paragraph 17 provides that FmHA may foreclose the mortgage "as provided herein or by law...." (emphasis added). The document does go on to provide in paragraph 24 that the government may foreclose as authorized or permitted under state law and under the laws of the United States. But reading this paragraph in conjunction with paragraph 17, we conclude that paragraph 17, providing disjunctively for proceeding "as provided herein or by law," authorized the government to foreclose solely in compliance with federal law. But see United States v. Johansson, supra. Otherwise, the "or by law" language is complete surplusage.
We reject defendants' contention that reading the contractural language in this way leads to an absurd result. First, defendants have not explained why they think it is absurd that the government should be able to pursue different options in individual cases. If federal regulations and the contractural language so provide, there is nothing wrong with this approach. Second, the government is not free to ignore both state and federal law under our interpretation of the mortgage agreement. FmHA must either: (1) comply with state *487 and federal law; or (2) comply with federal law alone.
We will issue an appropriate order.
ORDER
AND NOW, this 16th day of July, 1986, it is ordered that defendants' motion to strike the default judgment is denied.
NOTES
[1] The cross-motions were filed even though judgment has already been entered by default for plaintiff. We will treat defendants' motion as a motion to strike the default judgment pursuant to Fed.R.Civ.P. 60(b) and plaintiff's motion as simply opposition to that motion.
[2] Among those is the requirement that the mortgagee send a notice outlining the mortgagor's rights under the Act before foreclosure can begin. See 35 P.S. § 1680.403c.
|
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482 So.2d 648 (1986)
Joseph F. THERIOT, Plaintiff-Appellee,
v.
AMERICAN EMPLOYEES INSURANCE COMPANY, Defendant-Appellant.
No. 84-1044.
Court of Appeal of Louisiana, Third Circuit.
February 5, 1986.
*649 Brame, Berstedt & Brame, David Fraser, Lake Charles, for defendant-appellant.
Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.
Before STOKER, YELVERTON and KNOLL, JJ.
YELVERTON, Judge.
Involving a July 8, 1983, accident and therefore arising under the 1983 revisions, this worker's compensation appeal raises two issues: the award of penalties and attorney's fees, and the failure of the trial court to allow the compensation insurer a credit for the medical expenses paid by the hospitalization insurer. We find no error, and the judgment below is affirmed.
The plaintiff, Joseph Theriot, was employed by Cameron Water Works District No. 7, a political subdivision of Cameron Parish. Mr. Theriot's job included laying down water lines and general plumbing maintenance work.
On July 8, 1983, he was putting the plumbing in under the road from the water line to a house. As he was climbing down off his tractor his right foot got caught and was fractured. The same foot had been broken before in 1981 in a non-work related accident. Theriot had been discharged from medical treatment for this prior injury seven months before the July 8, 1983, accident. After the July 8 injury Theriot continued to work, with his leg in a cast, until September 22, 1983. On September 23 he underwent a bone graft operation. Complications arose and he was hospitalized twice more after the surgery. He has not worked since September 22, 1983.
On the day of the job accident Mr. Theriot called Mary Theriot (unrelated), the billing clerk of the Water Works, and told her he had gotten hurt. On July 13 at the monthly Water Works Board meeting Mr. Theriot told the Board of his injury. He sent his medical bills to Mrs. Bonnie Willis Conner, the executive secretary of the Parish Police Jury who was responsible for the filing of insurance claims. (The Police Jury handled certain administrative details for the Water Works District, such as payroll checks and hospitalization and compensation insurance policies and claims.) Mrs. Conner sent the bills to Aetna, the hospitalization insurer, apparently because the bills indicated that the date of the initial injury was August 7, 1981. She was not told that there was a more recent injury and that it was work related, and for that reason the 1981 date was used on the insurance forms she submitted.
On October 4, 1983, Theriot contacted Garner Nunez, the Parish Administrator, to inquire about his sick leave. It was at this time that the Police Jury became aware that the recent injury was work related, and an Employers Report of Injury was then filled out by Mrs. Conner and sent to the compensation insurer, the present defendant. It is not clear precisely when the defendant's agent, Mr. Holland, received this report of injury, but the testimony of Mrs. Conner and Mr. Nunez indicates that it was sent promptly after being filled out. Mr. Holland reviewed the file sometime in November or December and informed Mr. Nunez that his company had written to the *650 State Department of Labor and was waiting for a reply as to whether the claim was a legitimate worker's compensation claim. Mrs. Conner testified that Mr. Holland instructed her to continue sending the medical bills to Aetna, who was to be reimbursed should the claim turn out to be compensable.
The exhibits indicate that the State Department of Labor issued its recommendation as to Mr. Theriot's claim on December 30, 1983, a recommendation advising that the injury was not work related. Theriot formally rejected that recommendation on January 10, 1984.
Defendant never paid any benefits and suit was filed against the compensation insurer on January 24, 1984. After trial the court found that Mr. Theriot was totally and permanently disabled as the result of a work related injury. The trial court further found the defendant liable for penalties and attorney's fees.
On this appeal the appellant argues that its failure to pay compensation benefits was not arbitrary and capricious, and that it was therefore error to assess both penalties and attorney's fees.
Under the 1983 revisions of the Worker's Compensation Law, the arbitrary and capricious standard is no longer applicable to the assessment of penalties. The assessment of penalties is governed by new R.S. 23:1201(B) and (E), which read:
"B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer has knowledge of the injury or death and resulting loss of income, on which date all such compensation then due shall be paid."
"E. If any installment of compensation payable without an order is not paid within the time period provided in Subsections (B), (C), or (D) of this Section, there shall be added to such unpaid installment a penalty of an amount equal to twelve percent thereof, which shall be paid at the same time as, and in addition to, such installment of compensation, unless such nonpayment results from conditions over which the employer or insurer had no control. Whenever the employee's right to such benefits has been reasonably controverted by the employer or his insurer, the penalties set forth in this Subsection shall not apply. The twelve percent additional payment shall be assessed against either the employer or the insurer, depending upon who was at fault in causing the delay."
These provisions require knowledge of the injury and resulting loss of income, before the fourteen day time period begins to run. The parties stipulated that Mr. Theriot was employed by the Water Works District. The Water Works Board was told of the injury at its meeting on July 13, 1983. He had not worked since September 22, 1983. Therefore, the employer knew of the injury and the resulting loss of income on September 23, 1983. Fourteen days later the first installment of compensation became due and payable. No compensation was paid. Penalties were consequently due unless appellant could show either that the nonpayment resulted from conditions over which it or the employer had no control or that the employee's right to such benefits had been reasonably controverted. R.S. 23:1201(E).
Appellant does not claim that the nonpayment resulted from conditions over which it had no control. The only other inquiry is whether Mr. Theriot's right to benefits has been reasonably controverted. In Chelette v. American Guarantee and Liability Insurance, Inc., 480 So.2d 363 (La.App. 3 Cir.1985), this court formulated the following test to determine whether the employee's right to benefits has been reasonably controverted:
"[G]iven the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented *651 by the claimant. This test requires a close analysis of each workers' compensation case."
Our facts show that the insurer did not have a reasonable basis to believe that medical expenses and compensation were not due. The Employers Report of Injury was forwarded to Mr. Holland shortly after October 4, 1983. The facts given in the report indicated that the injury was job related. Mr. Holland had been informed that substantial medical bills were being incurred. The misunderstanding involving the 1981 injury was easily explainable. As stated by the trial judge, "a cursory investigation by the adjuster would have revealed this was a job related injury." We affirm the assessment of penalties.
We next turn to the issue of attorney's fees. The 1983 revision of R.S. 23:1201.2 provides in pertinent part:
"Any insurer liable for claims arising under this Chapter, and any employer whose liability for claims arising under this Chapter is not covered by insurance, shall pay the amount of any claim due under this Chapter within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject employer or insurer, in addition to the amount of the claim due, to payment of all reasonable attorney's fees for the prosecution and collection of such claim...."
The arbitrary and capricious standard used under the prior law obviously still applies with regards to attorney's fees. Appellant claims that the trial court erred in finding the failure to pay compensation benefits arbitrary and capricious and contends that the following facts support its decision not to pay: (1) the accident was not reported for nearly three months after its occurrence; (2) the claim forms submitted to Aetna noted that the accident related back to the 1981 non-work related injury; and (3) the recommendation from the Department of Labor advised that the accident was not work related.
This argument has no merit at all. The claim forms used the date of the first injury because of a misunderstanding between Mr. Theriot and Mrs. Conners. It was because of this same misunderstanding that the injury report was filled out so tardily. Yet after the problem had been cleared up, the insurer continued to contend that the second injury was not work related when there remained no basis for this contention. The recommendation of the Department of Labor lends no credence whatsoever to appellant's argument. That advisory opinion carries no weight and was not even admissible into evidence. R.S. 23:1310.1(A). We find no error in the award of attorney's fees.
As the final assignment of error, appellant claims it is entitled to a credit for all post-July 8, 1983, medical bills which were paid by Aetna. R.S. 23:1163, which prohibits the requiring of an employee to contribute, directly or indirectly, in any way toward the cost of worker's compensation, applies to this claim for credit. See Bryant v. New Orleans Public Service, Inc., 414 So.2d 322 (La.1982). Such a credit would be a direct reduction of compensation benefits. This assignment of error is without merit. The judgment below is hereby affirmed in all respects, with appellant to pay costs of this appeal.
AFFIRMED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7644
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL ANTONIO WRIGHT, a/k/a Bugg, a/k/a Derrick Antonio Wright,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:12-cr-00040-JFA-4; 3:16-
cv-02194-JFA)
Submitted: March 12, 2020 Decided: March 17, 2020
Before KING, KEENAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia,
South Carolina, for Appellant. William Kenneth Witherspoon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Antonio Wright seeks to appeal the district court’s order denying relief on
his authorized, successive 28 U.S.C. § 2255 (2018) motion. The order is not appealable
unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B) (2018). A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). When the
district court denies relief on the merits, a prisoner satisfies this standard by demonstrating
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable and that the motion states a debatable claim of
the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Wright has not made
the requisite showing. Accordingly, we deny Wright’s motion for a certificate of
appealability and dismiss the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
2
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34 F.Supp.2d 203 (1999)
COMMODITY FUTURES TRADING COMMISSION, Plaintiff,
v.
HANOVER TRADING CORP., et al., Defendants,
and
The Person known as "Jeffrey Roberts," et al., Relief Defendants.
No. 98 Civ. 1365(LAK).
United States District Court, S.D. New York.
February 2, 1999.
*204 David Berry, Lawrence H. Norton, Division of Enforcement, Commodity Futures Trading Commission, for Plaintiff.
Paul W. Verner, Verner Simon & Rocha, LLP, New York City, for Defendants.
MEMORANDUM OPINION
KAPLAN, District Judge.
This case involves an allegedly fraudulent commodity operation, Hanover Trading Corporation ("Hanover") and presents a significant issue regarding the propriety of ordering disgorgement by a so-called "relief defendant" one who is not charged with wrongdoing of money allegedly traceable to the alleged wrongdoers.
Facts
The complaint in this case contains three causes of action. The first alleges that defendants Hanover, Dupont, Singer and Droge (the "Principal Defendants") violated Section 4b(a) of the Commodity Exchange Act (the "Act")[1] by making material false statements and omissions in connection with orders to make, or the making of, contracts of sale of commodities for future delivery ("futures contracts"), misappropriating customer funds, and issuing false reports to customers. The second alleges violations by the Principal Defendants of Section 4(a) of the Act[2] in that the alleged futures contracts were sold in unlawful off-exchange transactions. The third seeks disgorgement by Aronowitz and the other relief defendants on the theory that the funds that are the subject of the claim are directly traceable to the proceeds of the fraud carried out by the Principal Defendants, that the relief defendants are not bona fide purchasers with legal and equitable title to the funds they received, and that the relief defendants would be enriched unjustly absent disgorgement. The case has been disposed of as to all Principal Defendants and relief defendants but Aronowitz. Singer has pleaded guilty to criminal charges in connection with these events.[3]
Plaintiff Commodity Futures Trading Commission (the "CFTC") moves for summary judgment requiring relief defendant Paul Aronowitz to disgorge the sum of $73,599.01 plus interest. In an order dated December 28, 1998, this Court struck Aronowitz's untimely papers in opposition to the Commission's summary judgment motion. In accordance with Local Civil Rule 56.1, all of the factual assertions contained in Plaintiff's Statement of Facts Not in Dispute ("Pl. 56.1 St.") therefore are deemed established for purposes of the motion. The remaining question is whether, given those facts, the CFTC is entitled as a matter of law to the judgment it seeks.[4] The only points warranting discussion in that regard are whether (1) the investments sold by defendant Hanover Trading Corp. ("Hanover") were futures contracts within the meaning of the Act and thus within the CFTC's jurisdiction and, if so, (2) disgorgement is an appropriate remedy against Aronowitz on the facts of this case.
Briefly stated, the facts are these. Hanover was engaged in selling an investment program involving commodities through telephone solicitation or telemarketing. None of the contracts it sold to its customers was concluded on a registered contract market, and so all violated Section 4b(a) of the Act if they were futures contracts. Moreover, Hanover's solicitations were fraudulent, and it misappropriated customer funds.
Aronowitz worked for Hanover. He solicited investments in these futures contracts through telemarketing, helped defendant Singer run the Hanover office, interviewed potential telemarketers and trained those whom Hanover hired, participated in fraudulent solicitations himself, and spoke with customers who had complaints.[5] He knew that *205 Hanover itself did not purchase physical commodities and told customers that they would not have to take delivery.[6] He also used an alias on a letter sent to new customers in an apparent attempt to create the impression that Hanover was more substantial an operation that in fact it was.[7] Nevertheless, the complaint does not accuse Aronowitz of any violation of law and, as will appear, the Commission has not charged him in this motion with knowledge of the fraudulent nature of Hanover's conduct.
The Commission seeks to have Aronowitz disgorge the proceeds of 48 checks drawn on Hanover bank accounts and paid to Aronowitz as commissions with respect to investments he solicited for Hanover.[8] Hanover's source of those funds was payments of customers in respect of the illegally solicited investments.[9]
Discussion
As the facts set forth in the Commission's Rule 56.1 statement are established for purposes of the motion, there are but two issues requiring discussion whether the investments marketed by Hanover were futures contracts subject to the jurisdiction of the CFTC and whether the Commission is entitled to disgorgement from Aronowitz on these facts.
Futures Contracts
While the statute does not define contracts for future delivery, or futures contracts, the cases demonstrate that they have two salient characteristics. First, futures contracts are contracts for the purchase or sale of a commodity for delivery in the future at a price that is established at the time the contract is initiated.[10] Second, the ability to offset the obligation to purchase by selling the contract, or to offset the obligation to deliver by buying a contract, "is essential, since investors rarely take delivery against the contracts."[11] The lack of an expectation that delivery of the physical commodity will be made is an important factor indicating the presence of a futures contract.[12]
Hanover's contracts involved the purchase of commodities for future delivery at prices agreed when the transactions were initiated. The "positions" were purchased in the expectation that they would be offset by selling transactions. There was no intention or expectation that Hanover's customers ever would take delivery.[13] In consequence, the investments sold by Hanover were futures contracts.[14] The claims asserted here therefore fall under the Act and within the jurisdiction of the CFTC.
Disgorgement
The Commission seeks disgorgement of the payments to Aronowitz on two theories. First, it argues that the money paid to Aronowitz was obtained illegally by Hanover and that Aronowitz has no legitimate ownership interest in it.[15] In any case, it maintains, a constructive trust should be imposed upon those funds because they were obtained illegally *206 by Hanover and such relief is warranted to avoid unjust enrichment of Aronowitz.[16]
The first of the Commission's arguments depends upon the proposition that Hanover never held any legitimate interest in the funds because its agreements with investors violated the Act and, unlike contracts in violations of the federal securities laws, were void rather than merely voidable.[17] The argument seems to be that Hanover could not pass any interest to Aronowitz because Hanover itself never had any interest in the money.
The Commission points to nothing in the Act that provides that a contract in violation of its terms is void. The only authority it cites for this proposition is an administrative consent order, Matter of MG Refining and Marketing, Inc.,[18] an authority of limited value to begin with.[19]MG Refining, moreover, merely recited that certain agreements were off-exchange contracts which were "illegal, and therefore void, under Section 4(a) of the Act ..."[20] But Section 4(a), while rendering off-exchange futures contracts unlawful, does not state that they are void as opposed to voidable. Moreover, the Commission's argument here flies in the face of a plethora of authority holding that even contracts made in violation of the securities laws, and thus subject to Section 29(b) of the Securities Exchange Act of 1934,[21] which states that such contracts are "void," are merely voidable at the option of the innocent party.[22]
The fact that transactions in violation of the Commodity Exchange Act are no more than voidable requires rejection of the Commission's first argument. In SEC v. Levine,[23] the Second Circuit held that defendants had acquired property interests in the proceeds of allegedly unlawful securities transactions notwithstanding the voidability of those transactions.[24] While the Court recognized that "a party who acquires property from a defrauding party and who has actual knowledge of the fraud may himself acquire only voidable title,"[25] the Commission has neither alleged nor proved actual knowledge by Aronowitz of the fraudulent nature of Hanover's conduct. The Commission's Rule 56.1 Statement, while establishing facts from which one might draw an inference of such knowledge, carefully avoided asserting that he had actual knowledge of the fraudulent character of Hanover's activities.[26] As the CFTC's papers in support of its motion for summary judgment must be viewed in the light most favorable to the non-moving party,[27] the Court may not draw that inference on this motion.
The second of the Commission's arguments presents its own problems. It often is said that "disgorgement does not penalize, but merely deprives wrongdoers of ill-gotten *207 gains."[28] In ordinary circumstances, therefore, there is no basis for disgorgement by an innocent party. Indeed, Levine reversed a district court order imposing a constructive trust on the proceeds of the allegedly unlawful securities transactions precisely because the district court did so on the basis of previous consent decrees and therefore without any adjudication of wrongdoing.[29]
To be sure, it is well established under the securities and, by analogy, the commodities laws that district courts, at the behest of the SEC and CFTC, respectively, in appropriate cases may reach funds held by non-parties. But that power is not entirely boundless.
In Deckert v. Independence Shares Corp.,[30] the wellspring of this authority, the Supreme Court in relevant part merely held sufficient a bill in equity seeking restitution from a relief defendant of funds held by the relief defendant "for account of [the principal defendant], which consisted in part of the payments alleged to have been procured by the fraud of" the principal defendant.[31] Thus, the bill did not seek recovery of funds to which the relief defendant had a claim of entitlement in his own right. Subsequent cases have extended Deckert to permit recovery from relief defendants, irrespective of their culpability, who possess illegally obtained profits and have no legitimate claim to them.[32] perhaps the broadest extension came recently in SEC v. Antar,[33] where the district court, on a theory of unjust enrichment, ordered disgorgement by innocent minors of proceeds from stock held for their benefit under the Uniform Gifts to Minors Act and fraudulently sold on their behalf by a principal defendant.[34]
Each of these cases focused on the relief defendant's lack of a legitimate claim to the money sought, whether because the relief defendant was a gratuitous beneficiary of the principal defendants' fraud or because he or she merely was the custodian of the principal defendants' assets. Here, however, the Commission wants to seize funds paid as compensation for services actually performed for a principal defendant, albeit paid out of proceeds of the principal defendant's fraud. And that difference the fact that this defendant performed services for Hanover for which he presumably was entitled to be paid is significant. It suggests that Aronowitz, in the words of the Commission's cases, has a "legitimate claim" to the money absent proof of culpability on his part.
In other cases in which relief defendants claimed to have earned the money sought, courts have permitted seizure or ordered disgorgement only after determining that the relief defendant in fact had no legitimate claim to the money. In SEC v. Colello,[35] for example, the SEC sought to seize the proceeds of a large fraud, including $2.9 million paid to relief defendant Colello. Colello, however, claimed that the money he received was payment for services rendered, namely the procurement of letters of credit for the enterprise.[36] The Ninth Circuit approved seizure of Colello's funds after the district court had found that the evidence "`demonstrate[d] the absence of any legitimate call on the funds.'"[37] In doing so, the circuit noted the multiple opportunities which the district court had afforded Colello to show some legitimate entitlement to the money.[38]
No such determination is possible on the record before this Court now. The Commission's *208 56.1 statement does not allege that Aronowitz knowingly participated in a fraudulent scheme and therefore was enriched unjustly. The issue analytically is the same as on the first of the Commission's arguments whether Aronowitz had sufficient knowledge of the nature of Hanover's conduct to make his retention of his compensation inequitable. And the Commission's argument fails for the same reason. It has failed to establish the absence of a genuine issue of fact as to Aronowitz's state of mind.
Conclusion
For the reasons set forth above, the Commission's motion for summary judgment as against relief defendant Aronowitz is denied. The Court nevertheless determines, under Fed.R.Civ.P. 56(d), that there is no genuine issue as to any of the facts set forth in the Commission's Statement of Facts Not in Dispute, all of which are deemed established for the purposes of this action. The only remaining issue for trial is whether Aronowitz's mental state makes disgorgement by him appropriate. That issue will be tried to the Court commencing on February 9, 1999 at 9:30 a.m.
SO ORDERED.
NOTES
[1] 7 U.S.C. § 6b(a).
[2] Id. § 6(a).
[3] United States v. Singer, No. 98 Crim. 551(HB).
[4] See, e.g., Davidson v. Keenan, 740 F.2d 129 (2d Cir. 1984).
[5] Pl. 56.1 St. ¶¶ 52-58.
[6] Id. ¶¶ 59-60.
[7] See id. ¶ 62.
[8] Id. ¶ 43, 46, 51-52.
[9] Id. ¶¶ 39-43.
[10] E.g., CFTC v. Noble Metals Int'l, Inc., 67 F.3d 766, 772 (9th Cir.1995), cert. den. 519 U.S. 815, 117 S.Ct. 64, 136 L.Ed.2d 26 (1996).
[11] E.g., CFTC v. Co Petro Mktg. Group, Inc., 680 F.2d 573, 580 (9th Cir.1982).
[12] See. e.g., id. at 581.
[13] Pl. 56.1 St. ¶¶ 11-20.
[14] The Act excludes "cash forward" contracts from CFTC regulation by providing that "[t]he term `future delivery' ... shall not include any sale of any cash commodity for deferred shipment or delivery." 7 U.S.C. § 2. A "cash forward" contract, however, is one in which the buyer enters into the contract in contemplation or expectation of taking physical delivery. See, e.g., CFTC v. Co Petro Mktg., Inc., 680 F.2d 573, 577-79 (9th Cir.1982); Bank Brussels Lambert, S.A. v. Intermetals Corp., 779 F.Supp. 741, 749 (S.D.N.Y.1991). The record here establishes that the "transactions Hanover offered and entered into with customer [sic] were solicited explicitly for the purpose of assuming the risk of commodity price changes, and were not entered into for the purpose of obtaining delivery of the underlying commodity." (Pl. 56.1 St. ¶ 13) The cash forward exclusion therefore is inapplicable here.
[15] Pl. Mem. 11.
[16] Id. 12.
[17] Id. 11.
[18] 1995 CFTC Lexis 190 (CFTC July 27, 1995).
[19] While the Court recognizes that construction of a statute by an administrative agency charged with its administration is entitled to substantial weight, Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Aluminum Co. of America v. Central Lincoln Peoples' Util. District, 467 U.S. 380, 389, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984), a consent order simply memorializes an agreement of the parties to end litigation upon certain terms. An unsubstantiated assertion of a legal proposition in such a document is untested in the adversary crucible. It may reflect nothing more than careless drafting or the view of an aggressive staff member that has not been considered carefully by the Commission itself. Hence, it is not necessarily reliable evidence of an agency's, considered view of the issue.
[20] Id., at *13.
[21] 15 U.S.C. § 78cc(b).
[22] E.g., Mills v. Electric Auto-Lite Co., 396 U.S. 375, 387, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).
[23] 881 F.2d 1165 (2d Cir.1989).
[24] Id. 1176-78.
[25] Id. at 1176.
[26] It doubtless avoided such an assertion in an effort to prevent Aronowitz from easily raising a genuine issue of arguably material fact by denying actual knowledge.
[27] This is so notwithstanding Aronowitz's failure to submit timely opposing papers.
[28] CFTC v. Hunt, 591 F.2d 1211, 1222 (7th Cir. 1979); see generally VIII LOUIS LOSS AND JOEL SELIGMAN, SECURITIES REGULATION 3741 (1991).
[29] 881 F.2d at 1180-83.
[30] 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940).
[31] Id. at 289, 61 S.Ct. 229.
[32] E.g., SEC v. Cherif, 933 F.2d 403, 414 n. 11 (7th Cir.1991), cert. den. 502 U.S. 1071, 112 S.Ct. 966, 117 L.Ed.2d 131 (1992); SEC v. Antar, 831 F.Supp. 380, 399 (D.N.J.1993).
[33] 15 F.Supp.2d 477 (D.N.J.1998).
[34] Id. at 493.
[35] 139 F.3d 674 (9th Cir.1998).
[36] Id. at 675.
[37] Id. at 678.
[38] Id.
|
{
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}
|
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1609
JADED MAHELET RUVALCABA MARTINEZ,
Petitioner‐Appellant,
v.
PETER VALDEZ CAHUE,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 11411 — John J. Tharp, Jr., Judge.
____________________
ARGUED JUNE 1, 2016 — DECIDED JUNE 24, 2016
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. For the first seven years of A.M.’s life,
he lived in Illinois with his mother, Jaded Mahelet Ruvalcaba
Martinez. A.M.’s father, Peter Valdez Cahue, lived nearby, alt‐
hough he and Martinez never married. They entered into a
private arrangement, never formalized through a court order,
for custody and visitation rights. The events leading to the
lawsuit before us arose when, in 2013, Martinez moved to
2 No. 16‐1609
Mexico and took A.M. with her. About a year later, Cahue per‐
suaded Martinez to send A.M. to Illinois for a visit; he then
refused to return A.M. to Mexico. Martinez petitioned for his
return under the Hague Convention on Civil Aspects of Inter‐
national Child Abduction (“the Convention”), T.I.A.S. No.
11670, 1343 U.N.T.S. 89 (Oct. 25, 1980), to which both the
United States and Mexico are parties. The Convention has
been implemented in the United States through the Interna‐
tional Child Abduction Remedies Act, 22 U.S.C. §§ 9001 et seq.
Relying heavily on its finding that Martinez and Cahue
did not share the view that A.M.’s habitual residence (a term
of art under the Convention) would be shifted to Mexico, the
district court found that Illinois remained A.M.’s habitual res‐
idence and dismissed Martinez’s petition. We conclude that
the district court asked the wrong question, and thus came to
the wrong answer. At all relevant times, Martinez had sole
custody of A.M. under Illinois law, while Cahue had no right
of custody either under Illinois law or the Convention. That
means that only Martinez’s intent mattered, and it is plain that
Martinez wanted A.M.’s habitual residence transferred to
Mexico. Cahue’s retention of A.M. in Illinois was therefore
wrongful and he must be returned to Mexico.
I
A.M. was born in 2006 in the Chicago suburb of Oak Lawn,
Illinois. Although Cahue voluntarily acknowledged his pater‐
nity at A.M.’s birth, A.M. lived with Martinez for his entire life
until Cahue retained him in Illinois in 2014. With minor ex‐
ceptions, Martinez and Cahue lived separately for most of
their ten‐year on‐again, off‐again relationship. They appear to
have cooperated relatively well, however, with respect to
A.M. On February 24, 2010, Martinez and Cahue entered into
No. 16‐1609 3
a private written custody agreement in which Cahue stipu‐
lated that he would “NOT fight custody in court for [A.M.],”
but would be guaranteed “constant access” and overnight vis‐
its “2 nights a week.” Neither parent ever took steps to me‐
morialize this arrangement in a court order.
In the spring of 2013 Martinez, a Mexican citizen who
worked at the Mexican Consulate in Chicago, began contem‐
plating a move back to Mexico. She asserts that “everyone,”
including Cahue, knew that she was moving. He denies that
he knew that she was planning to relocate permanently to Mex‐
ico or that she was planning to change A.M.’s domicile. In‐
stead, Cahue says, Martinez told him that she and A.M. were
going to Mexico on vacation. The district court believed Ca‐
hue’s version of events and found that Martinez did not tell
Cahue that she was taking A.M. to live in Mexico. Martinez
has not challenged that factual finding on appeal, and so we
accept it.
On July 26, 2013, Cahue signed a notarized letter author‐
izing A.M. to travel to Mexico. After two weeks, he began call‐
ing Martinez and asking when she planned to return. On Au‐
gust 7, he sent her $300 for gas, because (he says) Martinez
had told him that she might drive back to Chicago. Then Mar‐
tinez stopped communicating with Cahue altogether. Cahue
contacted Martinez’s mother, sister, and father, but learned
nothing; he also spoke with the Oak Lawn police, who told
him that there was nothing they could do.
In the meantime, Martinez and A.M. settled into their new
life in Mexico. Martinez began work, and A.M. enrolled in a
highly regarded private school in Aguascalientes. After a
brief period of adjustment, A.M. excelled in the new school.
He played soccer (fútbol) on several elite teams, and he
4 No. 16‐1609
earned a scholarship. He had friends at school and on his
sports teams, spoke Spanish fluently, attended church regu‐
larly, and spent time with his extended family in Mexico.
But from Cahue’s point of view, matters were not settled.
That fall, he consulted an attorney, who informed him of his
rights under the Convention. The attorney began preparing
documents for a petition Cahue could file under the Conven‐
tion, but he had to withdraw after discovering what he con‐
sidered a conflict of interest. Cahue did not seek alternate rep‐
resentation, nor did he file the petition pro se.
Meanwhile, Martinez pursued legal action in Mexico. On
October 16, 2013, she filed a petition against Cahue for child
support and an order of protection. Martinez testified that she
told Cahue about the petition, but she never served it on him.
Instead, she and Cahue agreed to a visitation plan and she
dropped the petition before the Mexican court ruled on it. Ac‐
cording to the plan, Cahue and A.M. would see each other in
December 2013, April 2014, and July 2014, during A.M.’s
school vacations. The December visit did not take place, but
Martinez and Cahue made plans for A.M. to visit Cahue in
April 2014 as contemplated.
In December 2013, Cahue began communicating with the
U.S. Department of State. A person on the Mexican desk,
Rosemarie Skelly Mendoza, explained his rights under the
Convention and sent him a blank petition for relief. Cahue
never filed it, but he did keep in touch with the State Depart‐
ment by email. As planned, A.M. visited his father during the
April 2014 spring break, from April 26 through May 4, and at
the end of the visit, Cahue sent him back to Mexico. Cahue
testified that he thought about keeping A.M. at that time, but
he did not because Martinez had already agreed to allow
No. 16‐1609 5
A.M. to visit Cahue that summer, and he did not want to dis‐
rupt A.M.’s school year.
In July, Martinez again sent A.M. to Chicago as agreed,
thinking that he would stay there for another short visit and
be back in time to start school on August 18, 2014. At first,
Cahue bought only a one‐way air ticket, but Martinez called
his bluff: she refused to allow A.M. to travel without a return
ticket. Cahue appeared to capitulate and bought the round‐
trip ticket. But Martinez’s suspicions were well founded. As
Cahue later admitted, he had no intention of sending A.M.
back to Mexico.
Martinez learned this on August 16, 2014, when she went
to the airport to pick up A.M. and he never arrived. When
Martinez contacted Cahue, he told her that he had forgotten
about the flight, and then he stopped answering her calls. On
August 21, he contacted the State Department and asked it to
put A.M.’s passport “on hold” so that A.M. could not leave
the United States.
Martinez flew to Illinois on August 25, 2014, meaning to
reclaim her son. She arrived at Cahue’s home that day, sur‐
prising him; with A.M. in tow, she decamped to her parents’
home in Illinois. Two days later, Cahue filed a petition for cus‐
tody in Illinois court, along with an emergency motion for im‐
mediate possession of A.M. and preliminary and permanent
injunctions barring Martinez from removing A.M. from Illi‐
nois. The state court granted his emergency motion, after
which Cahue sent the police to Martinez’s parents’ home, the
police seized A.M., and they returned him to Cahue. Martinez
promptly obtained counsel, filed an answer to Cahue’s peti‐
tion for custody, and attended a hearing in Illinois court on
September 17, 2014. The court continued Cahue’s temporary
6 No. 16‐1609
possession of the boy and ordered the surrender of A.M.’s U.S.
and Mexican passports.
After those developments, Martinez returned to Mexico,
where she resumed her legal fight. On February 6, 2015, she
filed her petition under the Convention with the Mexican
Central Authority. The U.S. State Department received the pe‐
tition on March 13, 2015. Then on December 15, 2015, after she
discovered that Cahue had obtained a new U.S. passport for
A.M., Martinez commenced emergency proceedings in the
district court and filed her verified petition in the Northern
District of Illinois for A.M.’s return to Mexico.
The district court held an evidentiary hearing, after which
it determined that there was sufficient evidence that A.M. had
acclimatized to Mexico during the year he lived there with his
mother. It also found, however, that Cahue and Martinez did
not jointly intend that A.M. should move to Mexico in the first
place. To the contrary, it said, Martinez took A.M. to Mexico
without Cahue’s permission or knowledge (presumably
about the permanence of the move—Cahue admitted that he
knew about the trip). Emphasizing the absence of shared pa‐
rental intent, the district court held that Illinois had remained
A.M.’s habitual residence during the year he spent in Mexico,
and thus Martinez’s petition had to be dismissed. Martinez
appeals from that judgment.
II
The Convention represents an international effort to deal
with the vexing problem of child custody when more than one
country is involved. It is fundamentally “an anti‐abduction
treaty.” Garcia v. Pinelo, 808 F.3d 1158, 1162 (7th Cir. 2015)
(quoting Redmond v. Redmond, 724 F.3d 729, 742 (7th Cir.
No. 16‐1609 7
2013)). Its dual purposes are “to secure the prompt return of
children wrongfully removed to or retained in any Contract‐
ing State,” and “to ensure that rights of custody and of access
under the law of one Contracting State are effectively re‐
spected in the other Contracting States.” Id. (quoting Conven‐
tion art. 1, T.I.A.S. No. 11670). To fulfill the latter purpose, it
seeks “to deter parents from absconding with their children
and crossing international borders in the hopes of obtaining a
favorable custody determination in a friendlier jurisdiction.”
Id. (quoting Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir.
2012)). The Convention is based on the principle “that a child’s
country of habitual residence is ‘best placed to decide upon
questions of custody and access.’” Id. (quoting Whallon v.
Lynn, 230 F.3d 450, 456 (1st Cir. 2000)).
Key among the Convention’s provisions is its “remedy of
return,” which “entitles a person whose child has wrongfully
been retained in the United States in violation of the Conven‐
tion to petition for return of the child to the child’s country of
‘habitual residence.’” Id. (citations and quotation marks omit‐
ted). A removal or retention is wrongful under the Conven‐
tion where it is “in breach of rights of custody … under the
law of the state in which the child was habitually resident im‐
mediately before the removal or retention,” and “at the time
of removal or retention those rights were exercised … or
would have been so exercised but for the removal or reten‐
tion. Convention art. 3, T.I.A.S. No. 11670.
The pivotal question under the Convention is generally
that of habitual residence. Redmond, 724 F.3d at 742. “In prac‐
tical terms, the Convention may be invoked only where the
child was habitually resident in a Contracting State and taken
8 No. 16‐1609
to or retained in another Contracting State.” Id. at 737 (quot‐
ing U.S. Dep’t of State, Hague International Child Abduction
Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494,
10,504 (Mar. 26, 1986)).
The district court recognized this. We review its findings
of fact for clear error, and its conclusions of law (including the
legal framework it adopts) de novo. The determination of ha‐
bitual residence is a “mixed” question of law and fact, see Red‐
mond, 724 F.3d at 743 (quoting Koch v. Koch, 450 F.3d 703, 710
(7th Cir. 2006)), to which we have given de novo review. See id.
at 742. We have done so because this question is antecedent to
many other issues under the Convention, and it is often de‐
terminative: if a child is currently located in her habitual resi‐
dence, her presence in the country (whether by removal or re‐
tention) is not wrongful. Id. at 737. In order to assure both the
national and the international uniformity that the Convention
was designed to achieve, de novo review is essential. Cf. Or‐
nelas v. United States, 517 U.S. 690, 697 (1996) (requiring inde‐
pendent appellate review of determinations of reasonable
suspicion or probable cause, because they “acquire content
only through application” and “[i]ndependent review is …
necessary if appellate courts are to maintain control of, and to
clarify, the legal principles”). To the extent that “habitual res‐
idence” turns on findings of historical fact, such as the inten‐
tions of the parties or the child’s adjustment to a new environ‐
ment, our review is deferential.
A
The Convention does not define “habitual residence,” but
we have understood the inquiry to be a “practical, flexible,
factual” one that “accounts for all available relevant evidence
and considers the individual circumstances of each case.”
No. 16‐1609 9
Redmond, 724 F.3d at 732 (quoting Mozes v. Mozes, 239 F.3d
1067, 1071 (9th Cir. 2001). As the term suggests, the search is
for the place where the child has made his or her home; it
identifies the country whose courts should be entrusted with
determinations such as custody and support. Generally “[a]
court should infer a change in habitual residence only where
[it] ‘can say with confidence that the child’s relative attach‐
ments to the two countries have changed to the point where
requiring return to the original forum would now be tanta‐
mount to taking the child out of the family and social envi‐
ronment in which its life has developed.’” Id. at 745 (quoting
Mozes, 239 F.3d at 1081).
The two most important factors in the analysis are paren‐
tal intent and the child’s acclimatization to the proposed home
jurisdiction. Id. at 744–45. Courts have differed on the weight
each factor should receive. We have tended to privilege the
parents’ perspective, id., but even so, we have stressed that
this emphasis is dependent on the circumstances. Id. at 746.
We also have noted that “[t]he intention or purpose which has
to be taken into account is that of the person or persons entitled
to fix the place of the child’s residence.” Id. at 747 (quoting
Mozes, 239 F.3d at 1076). Importantly, shared intent “has less
salience when only one parent has the legal right” to deter‐
mine residence. Id.
1
We consider first the question whether Martinez’s initial
removal of A.M. to Mexico in July 2013 was subject to any le‐
gal restrictions that might allow Cahue’s intent to affect the
analysis. Martinez argues that, as the parent with sole custody
of A.M., she had the exclusive right to establish his habitual
residence. This is not quite accurate. In Illinois, a custodial
10 No. 16‐1609
parent’s discretion to remove a child from the state is not com‐
pletely unrestrained. In the absence of a custody order, she is
not required to seek the court’s permission to relocate outside
of Illinois. See In re Parentage of R.B.P., 915 N.E. 2d 434, 439 (Ill.
App. Ct. 2009) (holding that where there is no custody order,
a mother need not seek permission under 750 ILCS 5/609
(2013) to leave the state). Nevertheless, a custodial parent may
be enjoined “upon application by any party” from relocating
with a child outside of Illinois “pending the adjudication of
the issues of custody and visitation.” 750 ILCS 45/13.5(a)
(2013). The latter section applies only in an “action brought
under [the Illinois Parentage Act of 1984] for the initial deter‐
mination of custody or visitation of a child or for modification
of a prior custody or visitation order.” A party may obtain an
injunction under section 13.5 even if the parentage action
commences after the custodial parent has left the state.
Hedrich v. Mack, 27 N.E.3d 666, 670 (Ill. App. Ct. 2015). At the
conclusion of the proceeding, even if the resulting court order
grants her sole custody, the custodial parent must show that
moving “is in the best interests of [the] child.” 750 ILCS
5/609(a) (2013); see also Fisher v. Waldrop, 849 N.E.2d 334 (Ill.
2006) (section 609(a) applies where there is a custody order in
place).
But Cahue never obtained rights of custody for Conven‐
tion purposes under these statutes, nor was Martinez’s right
to relocate A.M. constrained by them. In the absence of a court
order, Illinois law presumes that the mother of a child born
out of wedlock has sole custody. See 720 ILCS 5/10–5(a)(3)
(2013) (for purposes of statute on child abduction it is “pre‐
sumed that, when the parties have never been married to each
other, the mother had legal custody of the child unless a valid
court order states otherwise”); 750 ILCS 45/14(a)(2) (2013)
No. 16‐1609 11
(presuming mother had legal custody even where there has
been a judgment of paternity if no order grants custody to the
father, unless he has had physical custody for at least six
months prior to the date when the mother seeks to enforce her
custodial rights); see also In re Arthur H., 819 N.E.2d 734, 756‐
57 (Ill. 2004) (Garman, J., dissenting). Joint custody does not
arise automatically; a court must award it. See 750 ILCS
5/602.1(b) (2013). Moreover, joint custody is not the default
option: a court may confer joint custody only “if it determines
that joint custody would be in the best interests of the child.”
Id. § 602.1(c).
Cahue did not obtain a custody order during the time that
mattered. His agreement with Martinez provided him only
with agreed visitation rights—that is, a right of access that
does not trigger the remedy of return under the Convention.
See Abbott v. Abbott, 560 U.S. 1, 13 (2010). And even if that
agreement had spoken to custody, it would not have legal ef‐
fect: Illinois courts generally do not respect private agree‐
ments affecting custody. See In re Marriage of Linta, 18 N.E.3d
566, 570 (Ill. App. Ct. 2014) (noting that “the law severely lim‐
its on public‐policy grounds the enforceability of contracts af‐
fecting the custody … of children” and “per se rejects premar‐
ital agreements that … specify custody”). In July 2013, there‐
fore, Cahue had no custody rights under Illinois law.
Neither did Illinois accord him the lesser right of ne exeat,
which is a joint right to determine a child’s country of resi‐
dence. See Abbott, 560 U.S. at 10 (holding ne exeat to be right
of custody under the Convention). While section 13.5(a) pro‐
vides a mechanism to enjoin temporarily the removal from, or
compel the return of a child to, the state of Illinois, it is not a
right to veto the relocation. It merely requires that the removal
12 No. 16‐1609
be subjected to the scrutiny of a court. The court then deter‐
mines whether relocation should be enjoined pending the ad‐
judication of the custody question, considering the peti‐
tioner’s previous involvement with the child, the likelihood of
parentage, and the impact on the person being enjoined. 750
ILCS 45/13.5(a) (2013). The injunction lasts only until the ad‐
judication of custody or visitation is completed. After that, the
custodial parent may remove the child if a court finds that it
“is in the best interests of [the] child.” 750 ILCS 5/609(a)
(2013). The noncustodial parent has no right to determine the
child’s location; he or she has only the right to ask a court to
supervise. These laws show that Cahue never took the proper
steps to secure the rights on which he is trying to rely. There
was no existing custody order or even a pending custody pro‐
ceeding relating to A.M. in July 2013. As a result, neither sec‐
tion 13.5(a) nor section 609(a) could have restrained Martinez
from moving to Mexico with A.M.
Cahue asserts that because he and Martinez executed a
Voluntary Acknowledgement of Paternity at A.M.’s birth, and
because 750 ILCS 46/305(a) (2016) “confers upon the acknowl‐
edged father all of the rights and duties of a parent,” he has
rights of custody as a matter of law. There are two problems
with this theory. First, section 305(a) was not enacted until
2016. Second, even a judgment of paternity does not in itself
confer any rights of custody or visitation. See In re Parentage
of J.W., 990 N.E.2d 698, 706 (Ill. 2013) (“[A] judgment of pater‐
nity does not automatically entitle a biological father to visit‐
ation.”); J.S.A. v. M.H., 863 N.E.2d 236, 253 (Ill. 2007) (noting
that “the right of a biological father to establish paternity to a
child born to a marriage does not also mean that the legal
No. 16‐1609 13
rights flowing from the parent and child relationship,” in‐
cluding custody, “are automatically conferred”).
Cahue’s argument to the contrary finds no support in Illi‐
nois law. Nor are we persuaded by his criticism of our reliance
on Redmond. It is true, as he points out, that unlike the father
in Redmond, whom Irish law did not recognize as a parent,
Cahue is A.M.’s acknowledged father. We accept that for some
purposes this has legal consequences. But the Convention in‐
sists on a particular right—the right of custody—and Cahue
lacked that both when Martinez moved to Mexico in July 2013
and when Cahue refused to return A.M. to his mother in Au‐
gust 2014. Neither did Illinois law restrict Martinez’s move‐
ment of A.M. at either time. At both times that mattered, Ca‐
hue had no legal right to decide A.M.’s residence, and Mar‐
tinez had an unrestricted right to do so.
When Martinez moved to Mexico with A.M., she may
have violated the terms of the couple’s private custody agree‐
ment. But the move did not violate a right of custody for Con‐
vention purposes. Martinez’s removal of A.M. to Mexico was
therefore not wrongful. See Redmond, 724 F.3d at 738–39; White
v. White, 718 F.3d 300, 304‐06 (4th Cir. 2013). Nor did it violate
Illinois law. Because only Martinez has rights of custody un‐
der the Convention, and Illinois law did not in any way re‐
strict her right to move away from the country with her son,
only her intent was of legal significance.
2
The second key consideration in determining habitual res‐
idence is the extent to which the child has acclimatized to one
or the other place. The district court found that by August
2014, A.M. had acclimatized to Mexico. While A.M. had spent
14 No. 16‐1609
most of his life in Illinois, that fact is not dispositive. (That
would create the kind of formulaic, ratio‐based test that ap‐
pears nowhere in the Convention.) By the end of his first year
in Mexico, he displayed all of the indicia of habitual residence,
including friends, extended family, success in school, and par‐
ticipating in community and religious activities. The district
court found that A.M. had adapted successfully to Mexico,
and that finding is not clearly erroneous. Based on Martinez’s
intent that he change habitual residence, the lack of any right
on Cahue’s part to veto her preference, and A.M.’s own suc‐
cessful acclimatization, we conclude that Mexico was A.M’s
habitual residence at the time Cahue acted to retain him in the
United States.
B
Because the district court found that A.M.’s habitual resi‐
dence was Illinois, it had no reason to evaluate the wrongful‐
ness of Cahue’s 2014 retention of A.M., or any possible de‐
fenses that Cahue might have raised. Although it will some‐
times be desirable to remand to the district court for it to con‐
sider wrongfulness and possible defenses in the first instance,
that will depend on how well the record is developed,
whether the parties have had an opportunity to brief the is‐
sues, and how time‐sensitive the case is. In this instance, those
considerations persuade us to take up these issues now, with‐
out a remand.
1
As we noted earlier, a removal or retention is wrongful un‐
der the Convention if it is “in breach of rights of custody …
under the law of the state in which the child was habitually
resident immediately before the removal or retention”; and
No. 16‐1609 15
“at the time of removal or retention those rights were exer‐
cised … or would have been so exercised but for the removal
or retention.” Convention art. 3, T.I.A.S. No. 11670.
Cahue admits that he retained A.M. in Illinois without
Martinez’s consent. In doing so, he violated her rights of cus‐
tody under Mexican law. See Civil Code for the State of
Aguascalientes, arts. 434, 437, 440–41; Garcia, 808 F.3d at 1164
(noting that the right called patria potestas is “a ‘right of cus‐
tody’ under the Convention” that is conferred to both parents,
and whose “central values” are “fairness and reciprocity”).
Martinez regularly sought contact with A.M. from the time
Cahue retained him forward. See Walker, 701 F.3d at 1121 (not‐
ing that “any sort of regular contact” with the child qualifies
as “exercising … custody rights” under the Convention). Ca‐
hue’s retention of A.M. was wrongful under the Convention.
2
Because Cahue’s retention of A.M. in July 2014 was wrong‐
ful, A.M. must be returned to Martinez unless Cahue can
show that either of the two defenses he presented applies: that
A.M. is now so “settled in [his] new environment” that he
should not be returned, see Convention art. 12, T.I.A.S. No.
11670, or that Martinez “subsequently acquiesced in the … re‐
tention,” see id. art. 13(a). It is important, in evaluating these
defenses, to bear in mind that even if the facts provide some
support for a defense, “a court still has discretion to order the
return of a child if it would further the aim of the Conven‐
tion[,] which is to provide for the return of a wrongfully re‐
moved child.” Garcia, 808 F.3d at 1167 (quoting de Silva v. Pitts,
481 F.3d 1279, 1285 (10th Cir. 2007)). The Convention achieves
its aims both by returning children in individual cases and by
deterring future abductions or wrongful retentions. Id. at
16 No. 16‐1609
1168–69. “The Convention’s ‘defenses … are narrowly con‐
strued’ at least in part to preserve that deterrence.” Id. at 1169
(quoting de Silva, 481 F.3d at 1285). Where applying a defense
would undermine the deterrent effect of the Convention’s sys‐
tem, a court should hesitate to take that step.
The record here is equivocal at best on the applicability of
the “settled‐child” defense, and as our account of the facts
demonstrates, it does not support a finding that Martinez ever
acquiesced in Cahue’s actions. Moreover, it was Cahue who
willfully circumvented the Convention’s procedures, time
and again. Based on his conversations with an attorney and
State Department personnel, Cahue was aware of his legal
remedies. He nevertheless declined to exercise them because
he “knew [he] wouldn’t have won” (as he put it) on the peti‐
tion. Instead, he took advantage of Martinez’s good faith and
made her think that it was safe to send A.M. to Illinois for a
visit. He lulled Martinez into a false sense of security when he
returned A.M. to Mexico at the conclusion of A.M.’s spring‐
break stay.
Cahue may have tipped his hand when he bought the one‐
way ticket for the summer visit, but when Martinez raised the
point, he changed it to a round‐trip ticket. Yet all the while, he
planned to keep A.M. with him. In the past, we have sharply
criticized such “self‐help” measures, even suggesting that
there should be an anti‐self‐help poison pill: where a parent
exercises self‐help instead of using the Convention’s legal
remedies, he or she would transform the other parent’s juris‐
diction into the child’s habitual residence. See Kijowska v.
Haines, 463 F.3d 583, 588–89 (7th Cir. 2006). We need not go
that far now, however, and we note that any such step should
never lose sight of the best interests of the child. It is enough
No. 16‐1609 17
to say that in this case, rewarding Cahue’s strategy would be
quite damaging to the deterrent effect of the Convention.
Cahue has also taken advantage of Martinez’s pursuit of
her legal remedies through the Convention: during the pen‐
dency of her petition, he has worked actively to cement his
advantage in the courts of Illinois, his preferred jurisdiction.
When Martinez flew to Illinois, Cahue obtained an emergency
order from an Illinois court to keep A.M. there. After Martinez
returned to Mexico, despite her pending petition under the
Convention, he sought and obtained a default judgment in
state court granting him sole custody. Martinez instituted the
present emergency proceeding after she discovered that Ca‐
hue had obtained a new passport for A.M. and taken him to
Mexico without her knowledge or consent.
It is unclear whether the Illinois default judgment can or
will be reopened, and the Convention does not in principle
concern itself with custody decisions. Nevertheless, allowing
Cahue to gain an advantage from circumventing and exploit‐
ing the Convention in this way would pervert its goals. After
all, the Convention “seeks … to prevent a later decision on”
custody from “being influenced by a change of circumstances
brought about through unilateral action by one of the par‐
ties.” Garcia, 808 F.3d at 1162 (quoting Elisa Pérez–Vera, Ex‐
planatory Report: Hague Conference on Private International Law
¶ 71, in 3 Acts and Documents of the Fourteenth Session 426, 447–
48 (1980)). Here, declining to apply the Convention’s remedy
of return would do just that.
III
Martinez’s initial decision to move A.M. to Mexico was
lawful: she had sole custody over A.M. under Illinois law, and
18 No. 16‐1609
neither Illinois law nor the Convention precluded her from
moving with her son to Mexico with or without Cahue’s per‐
mission. Cahue had no rights of custody over A.M. that qual‐
ified Martinez’s position. Once in Mexico, A.M. adapted read‐
ily to his new home, such that by August 2014, when his fa‐
ther refused to return him, he was being kept from his habit‐
ual residence. Cahue retained A.M. in violation of Martinez’s
rights of custody under Mexican law—rights that she exer‐
cised continuously. Cahue’s retention of A.M. was therefore
wrongful under the Convention. Finally, applying a defense
here would not serve the aims of the convention.
We REVERSE the judgment of the district court and order
that A.M. be returned to Martinez’s custody in Mexico at the
earliest possible time.
|
{
"pile_set_name": "FreeLaw"
}
|
11 F.Supp.2d 1244 (1998)
Agnes FESSLER, Plaintiff,
v.
Kenneth S. APFEL,[1] Commissioner of Social Security, Defendant.
No. Civ.A. 94-K-2933.
United States District Court, D. Colorado.
July 14, 1998.
*1245 *1246 *1247 Frederick W. Newall, Colorado Springs, CO, for Plaintiff.
Regina Rodriguez, Assistant United States Attorney, Denver, CO, for Defendant.
MEMORANDUM DECISION ON APPEAL
KANE, Senior District Judge.
I. Procedural Background
Agnes Fessler appeals the final decision of the Commissioner of Social Security rejecting her application for Social Security disability insurance benefits. Jurisdiction exists under 42 U.S.C. § 405(g).
The last date Fessler met the insured status requirements for benefits was December 31, 1988. (R. at 22, 47-49.) She filed her first application for disability benefits on May 15, 1991, (R. at 92-94), claiming she was disabled because of a back injury and cancer, (R. at 105). The Social Security Agency (SSA) denied this application and her request for reconsideration for lack of evidence and because she was not treated for cancer until 1990. (R. at 96, 103.) She filed a second application for disability insurance benefits on September 3, 1992, (R. at 125-27), which SSA also denied because it did not raise issues beyond her 1991 claim, (R. at 129). After SSA denied her request for reconsideration on April 21, 1993, (R. at 153-56), Fessler requested a hearing with an Administrative Law Judge (ALJ) on May 19, 1993, (R. at 176-77).
After a hearing on February 2, 1994, the ALJ denied benefits on May 24, 1994. On October 26, 1994, the Appeals Council denied Fessler's request for review, making the ALJ's decision the final decision of the Commissioner. Fessler then filed this appeal on *1248 December 27, 1994, contending the Commissioner's denial of benefits lacked the support of substantial evidence and was contrary to law. (Compl.¶ 6.)
II. Factual Background
Fessler had been working as a school bus driver and aide in Florida for 12 years before injuring her back in November of 1983. (R. at 54-55.) She has not worked since.
Fessler first sought treatment for her injury from Jeffrey Beitler, M.D., on November 28, 1983. He diagnosed a lumbar sprain and strain and initially ordered one week of rest from work. (R. at 178.) One week later, Dr. Beitler ordered complete bed rest and muscle relaxants, after noting Fessler had failed to rest as previously ordered. (R. at 179.) On December 12, 1983, she reported no improvement. Dr. Beitler detected decreased lordosis (curvature of the lumbar and cervical spine)[2] and admitted her to the hospital. (R. at 180.) By December 29 Fessler had a full range of motion, normal neurological examination, and no gait disturbance, and Dr. Beitler stated she could return to work with no restrictions of activity. (R. at 182.) Fessler's last examination by Dr. Beitler was on January 5, 1984, when she reported pain when returning to work. He scheduled another appointment 2-3 weeks later after Fessler's leave of absence to go to Denver. However, she did not return to see Dr. Beitler. (R. at 183.)
In early 1984, Fessler left her job in Florida to move to Grand Junction. (R. at 56.) On May 7, 1984, she was admitted to the hospital after experiencing extreme back pain that made walking impossible. (R. at 57.) During her four-night stay, the attending physician, L.D. Kareus, D.O., diagnosed her with sciatic neuralgia (pain radiating from the back into the leg) secondary to a probable herniated nucleus pulposus in the L5-SL area (herniated disc), obesity, and mild hypertension. Fessler's condition improved with bed rest and traction, and Dr. Kareus discharged her with prescriptions for Ascription, Soma Compound with Codeine and Naldecon, as well as iron supplements and a diet plan. (R. at 185.)
On September 6, 1984, after moving to the Colorado Springs area, Fessler began treatment with Robert Kotch, D.O. His notes indicate she went to his office at least twice per week for treatment until November 8, 1984. (R. at 223-26.)[3] Dr. Kotch ordered x-rays, (R. at 227-28), a CAT scan of the lumbar spine, (R. at 231), and consultations with orthopedic surgeon Roland Brandt, D.O., and neurologist Mario Oliveira, M.D. Dr. Brandt found tenderness in the low lumbar area, an absence of the Achilles reflex on the right side and restricted motion with forward flexion. However, he found no abnormal curvatures and her iliac crests (expanded upper border of the hip bone) were of equal height. Based on this examination, Dr. Brandt diagnosed a herniated nucleus pulposus L5-S1 on the right side. (R. at 230.)
Dr. Oliveira diagnosed a right S1 radiculopathy (disease of the nerve roots) related to her intervertebral disc disease. He recommended conservative treatment in light of Fessler's weight, including traction, weight reduction, and anti-inflammatory drugs. (R. at 234.) In a letter dated December 4, 1984, Dr. Kotch stated Fessler "must be classified as temporary total disability [sic]," based on Dr. Oliveira's diagnosis. (R. at 232.)
The record contains no documentation of treatment with Dr. Kotch after December 4, 1984. The only additional document in the record relating to Fessler's back condition is a report Dr. Brandt prepared for the Broward County School Board's worker's compensation insurance carrier on March 26, 1986. (R. at 237-38.) The report indicates Dr. Brandt continued to feel Fessler had a herniated disc, but her symptomatology was minimal and gave her little difficulty with day-to-day activities. He noted her forward flexion had improved, and her spine continued to show no abnormal curvatures. Id. Based on this examination, Dr. Brandt completed an Estimated Functional Capacity *1249 Form, stating Fessler could occasionally lift and carry up to 24 pounds, could sit for 8 hours, stand for 4 and walk for 4 with rests in an 8-hour work day. He concluded she could not return to her former job as a school bus driver and aide, but could return to other full-time work. (R. at 239-40.)
From August 29 to September 19, 1986, R.A. Brumfield, M.D., treated Fessler for pain in her right shoulder. He diagnosed an anterior impingement, and prescribed Darvocet-N and Clinoril. (R. at 246.) Her symptoms were temporarily relieved with an injection of Kenalog and Xylocaine, and he ordered her not to perform significant work with her shoulder. Dr. Brumfield discussed surgery with Fessler but ruled it out because it would not guarantee a good result and because of the expense for her, since her insurance would not cover the full cost. (R. at 246-47.) There are no records of additional treatment by Dr. Brumfield after September 19, 1986.
At the hearing before the ALJ, Fessler testified the pain she suffered required her to rest every afternoon in order to complete her household chores. (R. at 61.) She stated she listened to relaxation tapes approximately three times per week in order to keep her mind off the pain. (R. at 68-69.) When she felt she would be unable to do housework in the morning, she would set the breakfast table and prepare the coffee pot the previous evening. (R. at 67.) While standing was more comfortable for her than sitting, she had to alternate positions during the day to avoid discomfort. (R. at 70.) Fessler also complained of symptoms relating to hypertension and diabetes. (R. at 77-79.) Fessler's husband testified, corroborating her testimony and elaborating upon the limitations her injury placed upon her activities. (R. at 80-83.)
In a Daily Activities Questionnaire completed June 11, 1991, Fessler stated on an average day she cooked three meals, made snacks, and did house cleaning, clothes and dish washing, and most of the shopping. She also indicated she took a one-hour nap at noon each day and had no problems caring for her personal needs although they took longer than they had before her injury. (R. at 119-20.)
The ALJ found Fessler was unable to return to work as a school bus driver and aide. Based upon the Estimated Functional Capacity form completed by Dr. Brandt and the testimony of a Vocational Expert (VE), however, he concluded she was capable of performing the full range of light work and the Commissioner had met his burden of showing she was capable of performing work that existed in significant numbers in the economy. (R. at 39.) He found Fessler's subjective complaints not credible, and that her husband's testimony lacked sufficient weight to overcome her lack of credibility. (R. at 37-39.)
III. Standard of Review
In reviewing a final decision by the Commissioner of Social Security, the court determines whether the Commissioner applied the correct legal standards and whether the record contains substantial evidence supporting the Commissioner's decision. Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1497 (10th Cir.1992). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 1498 (quoting Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983)). The reviewing court cannot reweigh the evidence, Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800 (10th Cir.1991), but must meticulously examine the record in its entirety, Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988).
IV. Discussion
A. Development of the Record
Fessler argues the ALJ's failure to resolve the discrepancy between the reports of Drs. Brumfield and Brandt when determining her disability was a failure adequately to develop the record. (Pl.'s Opening Br. at 6); see Thompson v. Sullivan, 987 F.2d 1482, 1491-92 (10th Cir.1993). This argument is without merit. Fessler received a hearing lasting one hour and ten minutes that ended after the scheduled time because of her late arrival. (R. at 72.) Her attorney and the ALJ asked her questions about her impairment, the treatment she sought, (R. at 55-58), and the impact the impairment had on *1250 her daily activities. (R. at 60-70.) The ALJ relied upon a report prepared by one of Fessler's examining physicians to assess her Residual Functional Capacity (RFC). (R. at 33-34.)
An ALJ must order further examinations of a claimant when there is no evidence upon which to base an assessment of RFC, Thompson, 987 F.2d at 1491, and must ask enough questions at the hearing to determine the nature of the claimed impairments, the ongoing treatment and medications, and the impact of the alleged impairment on the claimant's daily activities, Id. at 1492 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1375 (10th Cir.1992)). An ALJ has satisfied the duty to develop the record when the claimant has had an opportunity to speak extensively on the nature of her impairments and their impact on her activities, and the documentary record contains the pertinent facts needed to inform the ALJ. Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir.1994). I find the documentary evidence together with the testimony taken at the hearing satisfy the duty to develop the record.
Fessler also maintains the ALJ should have developed the record regarding an onset issue presented by the case. (Pl.'s Br. at 7-8.) She does not indicate, however, what additional documentary evidence is necessary, or how an order for an examination would help to develop the record in this regard. Nor did Fessler's attorney identify the onset issue at the hearing when given the opportunity to do so. (R. at 50-51.)
"[I]n a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir.1997). Moreover, it is illogical to insist upon development of the record as to the onset of a disability that the Commissioner has determined did not exist. To remand for consideration of further evidence, a court must normally determine that the evidence would have changed the decision. Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir.1991). Here, I find evidence as to the onset of the alleged disability would not alter the Commissioner's finding of no disability.
B. Credibility Determination
1. The ALJ applied the correct legal standard in determining the credibility of the claimant.
Fessler argues the ALJ applied the wrong legal standard in assessing the credibility of her testimony regarding disabling pain. She asserts he was required to hear her complaints of pain once she documented an impairment reasonably capable of producing her alleged pain. Luna v. Bowen, 834 F.2d 161 (10th Cir.1987); (Pl.'s Br. at 9-10.) The Commissioner argues the ALJ relied upon all the evidence in determining Fessler's claims of disabling pain were not credible, and his assessment of credibility is entitled to great weight because he explained the basis of his conclusion. See Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.1988); Hamilton, 961 F.2d at 1498-99. The Commissioner maintains the ALJ's evaluation of her subjective claims was in accordance with Luna because the medical evidence did not prove her pain was disabling. (Def.'s Ans.Br. at 5-13.)
In order to have her subjective complaints considered, a claimant must first prove, through objective medical evidence, that she has a pain-producing impairment. Luna, 834 F.2d at 163. Then, the decision maker must determine whether the impairment could reasonably be expected to produce the alleged pain. Id. If the nexus between the pain and the impairment is insufficient, the claimant cannot receive benefits based upon disabling pain. Id. If the nexus is sufficient, then the ALJ must consider the objective and subjective evidence to determine whether the pain is disabling. Id. Only at that point is the credibility of the witness an issue. Id. The medical evidence need not prove that the claimant's condition would necessarily cause the degree of pain claimed, only that it may be expected to cause some pain. Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir.1993). However, when the medical evidence fails to corroborate the severity of the pain alleged, the weight given the subjective evidence may be affected. Luna, 834 F.2d at 164-65.
*1251 The ALJ applied the correct legal standard for assessing Fessler's credibility. He first reviewed the objective medical evidence and concluded it established the plaintiff had a pain-producing impairment. (R. at 25-31.) The ALJ then determined the impairments could reasonably have been expected to produce the alleged pain. It was only when considering all the evidence as to whether Fessler suffered disabling pain that he determined her testimony was not credible because of inconsistencies between her testimony, the medical evidence and her daily activities. (R. at 31.)
2. The ALJ based his credibility determination upon substantial evidence.
Fessler criticizes the ALJ's credibility determination as a "conclusion in the guise of findings," (Pl.'s Br. at 11), because he stated the passage of five years between her date last insured and the hearing would cause him to give less weight to her subjective complaints. (Pl.'s Br. at 8-9; R. at 48-49.) Fessler asserts the other reasons given by the ALJ for finding she was not credible were a "rationalization" of this position. She argues evidence of the need to have the worker's compensation insurance carrier approve treatment and of lack of funds excuses the length of time between treatments. (Pl.'s Br. at 9.) She also avers her limited daily activities were consistent with the other evidence, and her unsuccessful search for employment required by worker's compensation was consistent with her claims of disability. (Pl.'s Br. at 11.)
The Commissioner replies the ALJ's credibility determination had support because Fessler failed to follow a physician's orders, sought medical treatment infrequently, left her job for reasons other than disability, and engaged in daily activities inconsistent with claims of disabling pain. (Def.'s Br. at 5, 7-8, 13.)
"`Credibility is the province of the ALJ.'" Musgrave, 966 F.2d at 1376 (quoting Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir.1986)). Therefore, the credibility determination is generally considered as binding upon review. Jacobs v. Chater, 956 F.Supp. 1560, 1567 (D.Colo.1997) (citing Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990)). While courts will give great deference to an ALJ's findings regarding credibility, these findings "should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.1988). In assessing credibility, an ALJ may consider factors including the frequency of medical contacts, daily activities, extensiveness of attempts to obtain relief, subjective measures of credibility, and the consistency and compatibility of the nonmedical evidence with the medical. Id. at 1132.
The passage of five years between the last date of disability insurance coverage and the administrative hearing falls under the category of subjective measures of credibility that an ALJ may employ. The effect of the lapse of so much time between Fessler's last date of insurance coverage and the hearing is evident in both her and her husband's inability to distinguish clearly and consistently her condition at the time of the hearing from her condition during the period of disability coverage. (R. at 56, 60-62, 64, 66-67, 70, 80-81.) The fact that her impairments had worsened considerably between her date last insured and the hearing makes the testimony particularly problematic and raises doubts as to its reliability. (R. at 49.)
Nor did the ALJ rely exclusively upon the passage of time between Fessler's last date of insurance coverage and the hearing in making his credibility determination. First, he found her ability to complete all of the housework inconsistent with allegations of disabling pain. Since she was able to perform significant chores, such as washing clothes, making meals, and taking care of her and her husband's personal needs, (R. at 31, 108), these activities were more than the sporadic performance of limited daily tasks, see Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir.1987), and could reasonably be considered inconsistent with claims of disabling pain, see Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1349 (10th Cir.1990).
Second, the ALJ relied upon gaps in Fessler's seeking treatment to relieve her back pain. See Huston, 838 F.2d at 1132. Although Fessler argues her failure to seek treatment is excused by a lack of funds and *1252 the need to seek approval from her insurance carrier before receiving treatment, the only evidence of this in the record relates to her choice of conservative treatment over surgery and does not explain the lengthy gaps between visits to her treating physicians. (R. at 247.) Finally, while not specifically referred to by the ALJ, the fact that Fessler left her job to move to Colorado and not because of her injury also supports his finding that her allegations of disabling pain were not credible. (R. at 229); Potter, 905 F.2d at 1349.
I find the ALJ's determination that Fessler's complaints of disabling pain were not credible has substantial support in the record and was based upon the proper legal standard.
C. Substantial Evidence in the Record
Fessler argues the ALJ's decision was not supported by substantial evidence because he relied exclusively upon a report prepared by consulting physician Dr. Brandt, and improperly rejected conflicting opinions of treating physicians Drs. Kotch and Brumfield.[4] While Dr. Brandt indicated Fessler could return to work in a report prepared for her worker's compensation insurance carrier on March 26, 1986, (R. at 237-40), Dr. Kotch had opined she must be classified as "temporary total disability [sic]" in a letter to attorney Richard Sadow on December 4, 1984, (R. at 232). The ALJ did not include reference to Dr. Brumfield's August 29, 1986 diagnosis of a shoulder impingement, lightheadedness and headaches in his hypothetical to the VE. (R. at 246.) Fessler asserts the ALJ's decision to rely entirely upon Dr. Brandt's report as the basis of his findings concerning her RFC, (R. at 38), improperly rejected the opinions of the treating physicians without good cause. (Pl.'s Br. at 5); see Castellano v. Secretary of Health and Human Services, 26 F.3d 1027, 1029 (10th Cir.1994). Fessler also argues the ALJ should have considered her claims of diabetes to include all her impairments in his disability determination. (Pl.'s Br. at 6.)
The Commissioner maintains Dr. Kotch's opinion was inconsistent with clinical findings, (Def's.Br. at 9), and the ALJ properly excluded the alleged shoulder impingement from consideration because treatment relieved Fessler's symptoms and she failed to return for treatment after her third visit with Dr. Brumfield. (Def.'s Br. at 11-13.) Because there was good cause to reject Dr. Kotch's opinion, and the shoulder impairment documented in the records of Dr. Brumfield was not a permanent condition, the Commissioner argues these medical findings were properly excluded from the ALJ's disability determination and the hypotheticals posed to the VE. See Castellano, 26 F.3d at 1029; Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir.1988).
The decision maker must give an assessment made by a treating physician substantial weight unless there is good cause not to do so. Hargis, 945 F.2d at 1489 (quoting Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984)). If an ALJ rejects the opinion of a treating physician, he must give "specific and legitimate reasons." Hamilton, 961 F.2d at 1498. However, if an ALJ states he considered the entire record in making his decision, (R. at 37), a reviewing court cannot assume otherwise. Id. at 1498-99.
The ALJ stated he considered the entire record. (R. at 37.) His exhaustive discussion of Fessler's medical history supports this assertion. (R. at 26-31.) He concluded Fessler had the physical RFC for a range of light work within the limits set by Dr. Brandt in his evaluation of March 26, 1986, from her alleged disability onset through her date last insured. (R. at 35.) The ALJ used this evaluation for the period March 26, 1986 to December 31, 1988 because Fessler did not seek medical treatment for her lower back and right leg pain during that period. (R. at 34.) Although he did not explicitly reject Dr. Kotch's opinion that Fessler was temporarily totally disabled, the ALJ did not state why he found Dr. Brandt's conclusions to represent Fessler's condition for the period *1253 November 28, 1983 to March 26, 1986 despite their apparent inconsistency with Dr. Kotch's conclusions contained in his letter of December 4, 1984.
The ALJ could reasonably find the reports of Drs. Kotch and Brandt consistent because Dr. Kotch did not find Fessler to be permanently disabled, but only temporarily disabled at the time of the December 4, 1984 letter. The fact that Fessler had been seeing Dr. Kotch for only three months also supports the ALJ's interpretation of the medical evidence. (R. at 223-26.) Finally, her medical history shows she had twice previously sought treatment for severe back pain and had responded well to that treatment. (R. at 182, 185.) "If an impairment can reasonably be treated or controlled it cannot constitute a disability." Limon v. Shalala, 884 F.Supp. 1481, 1487 (D.Colo. 1995) (citing Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir.1988)); see also Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir.1987).
The ALJ's interpretation of the medical evidence is also consistent with the fact that Fessler did not document any treatment for her back condition after December 4, 1984. The only medical records of any sort after that date are the letter and form from Dr. Brandt dated April 28, 1986, (R. at 237-40), and the records from visits to Dr. Brumfield from August 29 to September 19, 1986 relating to her shoulder condition, (R. at 246-47). While the record as a whole indicates Fessler suffered from periodic attacks of severe back pain, it does not show her medical condition lasted or could be expected to last continuously at least 12 months as required for a finding of disability. See 20 C.F.R. §§ 404.1505, 416.905 (1995); Jacobs v. Chater, 956 F.Supp. 1560, 1564 (D.Colo.1997).
Turning to Fessler's shoulder condition, the ALJ did not merely wish it away while "[w]hist[ling] a happy tune" in the mode of a Rogers and Hammerstein musical. (Pl.'s Br. at 7, n. 2.) Instead, he based his conclusion that the impairment dissipated upon the fact that Fessler sought treatment for it for only three weeks. (R. at 32-33.) While lack of funds and insurance explain her decision not to undergo surgery for this condition, they do not explain the fact that she did not return to see Dr. Brumfield at all, even though she was scheduled to do so 2-3 weeks after her September 19, 1986 visit. (R. at 247.) It was reasonable to conclude from the evidence that her shoulder condition did not impair her ability to perform gainful activity for a period of 12 months or longer. The lesser weight given Dr. Brumfield's reports by the ALJ was appropriate because it was based upon "specific and legitimate reasons." See Jacobs, 956 F.Supp. at 1567 (citing Hamilton, 961 F.2d at 1498).
The ALJ refused to consider Fessler's claims of hypertension and diabetes because the medical record contains no complaints to physicians of symptoms relating to either condition. (R. at 32.) Fessler refutes this assertion, but can point only to her complaint to Dr. Brumfield of headaches as medical evidence of her suffering from any such symptoms. (R. at 247.) Because she did not produce medical records indicating she suffered some disability related to either hypertension or diabetes, the ALJ's conclusion that Fessler could perform light work had substantial support in the record. See McGeer v. Apfel, 1998 WL 214886, *5 (D.Kan. Mar.3, 1998); Knighten v. Chater, 106 F.3d 413, 414 (10th Cir.1997).
I find the ALJ's conclusion that Dr. Brandt's evaluation of Fessler's estimated RFC represented her capacities for the entire period in question has substantial support in the record. The hypothetical he posed to the VE was valid, because it represented all of Fessler's limitations throughout the period from the alleged onset of her disability through her date last insured. See Ellison v. Sullivan, 929 F.2d 534, 537 (10th Cir.1990). Therefore, the ALJ's conclusion that Fessler was capable of performing work that existed in significant numbers in the economy, based upon the VE's response to a valid hypothetical, has substantial support in the record.
V. Conclusion
Fessler received a hearing at which the record regarding her claim was developed fairly and completely. No issues remained that required further factual development for the final decision as to her disability claim. The ALJ applied the correct legal standards and his decision has substantial support in the record. He considered all the evidence *1254 when discounting Fessler's subjective complaints, and posed a hypothetical supported by substantial medical evidence to the VE. The Commissioner bore his burden of showing that Fessler was able to perform jobs that existed in substantial quantities in the economy. Therefore, I affirm the Commissioner's decision to deny benefits to Fessler. The appeal is denied.
NOTES
[1] Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464 (1994), the function of the Secretary of Health and Human Services in Social Security cases was transferred to the Commissioner of Social Security effective March 31, 1995. In accordance with § 106(d) of that law, Kenneth S. Apfel, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the Defendant in this action. Accordingly, the Defendant in this case should now be reflected as "KENNETH S. APFEL, Commissioner of Social Security."
[2] All definitions of medical terms are taken from Dorland's Illustrated Medical Dictionary (1974).
[3] Although the Exhibits List describes these documents as medical records from Eisenhower Hospital, Fessler's attorney indicated at the administrative hearing that they are Dr. Kotch's office notes. (R. at 51.)
[4] While Fessler does not make this argument explicitly, she implies it in the arguments that the ALJ relied upon an improper hypothetical posed to the vocational expert, (Pl.'s Br. at 4-5), that the ALJ failed to consider the evidence, (Pl.'s Br. at 5-6), and that the ALJ failed to develop the record as to an "onset issue." (Pl.'s Br. at 7-8.)
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38 Cal.App.3d 335 (1974)
113 Cal. Rptr. 396
HENRY DILLON et al., Plaintiffs and Respondents,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Appellant.
Docket No. 1765.
Court of Appeals of California, Fifth District.
April 2, 1974.
*337 COUNSEL
McCormick, Barstow, Sheppard, Coyle & Best, McCormick, Barstow, Sheppard, Coyle & Wayte and Boone & Monroe and William B. Boone for Defendant and Appellant.
R.W. Levy for Plaintiffs and Respondents.
OPINION
GARGANO, J.
This is an appeal from a judgment of the Superior Court of Fresno County declaring that appellant, hereinafter referred to as Hartford, is obligated to defend respondents, hereinafter referred to as the Dillons, in the case of J.T. Cox v. Henry Dillon, et al, superior court action No. 139735; the complaint in that action was filed on January 6, 1969, in Fresno County.
The background facts are these.
In 1967 the Dillons had farm leases on two separate but adjoining 160-acre parcels of land located in the vicinity of Davis and Highland Avenues in Fresno County; one parcel was owned by Tango Johnston and the other by a Mrs. Elwood.
*338 In the latter part of the year Johnston made arrangements with Winter-Abajian Well Drilling to drill a well on his neighbor's property. He also made arrangements with Walter Dan Sharp to "develop" the well, which means to pump sand out of the well casing. Johnston requested the Dillons to furnish their 1957 Model 850 Ford tractor to scrape the sand away as the well was being developed. The Dillons agreed to do so.
In the beginning the Dillons' tractor was operated by Robert Dillon. After a few days very little sand was being pumped from the well, and J.T. Cox volunteered to drive the vehicle. Cox was an employee of Walter Dan Sharp.
On January 8, 1968, the tractor became stuck in the sand. Cox attached a chain to the front of the tractor and to the back of a Chevrolet truck owned by Walter Dan Sharp; with Seth Abajian driving the truck and Cox operating the tractor, they pulled it free and onto level ground; Cox got off the tractor and walked to the truck to remove the chain. The tractor "started some way" and commenced to move on its own volition; it came to a stop when it struck the truck. In the meanwhile Cox got caught in the chain and was pulled under the truck. At the time the truck was standing still and Abajian was outside of it.
On January 6, 1969, Cox filed an action in the Superior Court of Fresno County against the Dillons, seeking damages for personal injuries. His complaint, in three causes of action, was predicated on the theory that the injuries were caused by a defect in the gear mechanism of the Dillons' tractor and that the Dillons had failed to provide the injured man with a safe place of employment; the complaint inter alia alleged that the Dillons had the direction, management, control and custody of the premises and of the Ford tractor and surrounding equipment.
On July 11, 1969, the Dillons brought this action for declaratory relief in the court below to determine whether Hartford was required to defend them in the Cox personal injury lawsuit under the insurance policies the company had issued to Winter-Abajian Well Drilling and to Walter Dan Sharp. These policies contain both comprehensive automobile liability and comprehensive general liability coverage and are essentially similar; hereinafter, they will be referred to as the Hartford policies.
After issue was joined on the complaint the cause was submitted to the court for decision on the basis of the pleadings in the Cox lawsuit, the Dillons' answers to Hartford's interrogatories and the depositions of Robert Dillon, Henry Dillon and J.T. Cox. Thereupon, the court determined that Hartford was obligated to defend the Dillons in the personal injury *339 lawsuit because they were additional insureds under both the comprehensive automobile liability and comprehensive general liability sections of the Hartford policies. Judgment was entered accordingly, and Hartford has appealed.
We consider first the court's ruling that the Dillons were entitled to a defense in the Cox lawsuit under the comprehensive automobile liability insurance sections of the policies.
In defense of the trial court's ruling, respondents make no contention that the tractor was covered by the automobile liability sections of the Hartford policies; they admit that the tractor is not within the definition of an automobile. Respondents also state that the trial court did not make any finding that the Dillons actually were using or legally responsible for the use of the Sharp truck within the ambit of the permissive user coverage of the policies. The Hartford policies contain the usual "groundless, false or fraudulent" clause and what respondents point out is that the court found the allegations of the complaint in the personal injury lawsuit were broad enough to suggest that the Dillons were using or were legally responsible for the use of Sharp's truck at the time of the accident. Respondents insist, even though the allegations of the complaint may be groundless, it is potential, not actual, liability under an insurance policy that is the test for determining the insurer's obligation to defend its insured. (Hogan v. Midland National Ins. Co., 3 Cal.3d 553, 563 [91 Cal. Rptr. 153, 476 P.2d 825].)
(1) It is true that the duty to defend litigation brought against an insured may exist even where the coverage is in doubt and ultimately does not develop. For example, in Gray v. Zurich Insurance Co., 65 Cal.2d 263 [54 Cal. Rptr. 104, 419 P.2d 168], the Supreme Court declared that an insurance policy of the kind involved in this case contains two promises. It promises to indemnify the insured for any loss which falls within the coverage afforded by the contract. It also promises to defend the insured in any lawsuit brought by a third party in connection with a risk covered by the policy "even if any of the allegations of the suit are groundless, false or fraudulent." Under the first promise, no liability attaches to the insurer unless the loss actually is covered by the policy. The second promise, however, is not contingent upon actual liability, and the duty to defend is "fixed by the facts which the insurer learns from the complaint, the insured, or other sources" which give rise to potential liability under the policy. (65 Cal.2d, supra, at pp. 276-277.)
(2) The duty to defend is not without limitation; it extends only to the defense of those actions of the nature and kind covered by the policy. *340 (Gray v. Zurich Insurance Co., supra, 65 Cal.2d 263, 275.) If the insurer, after taking into consideration facts gathered from its own investigation or information supplied by the insured, determines that there is no potential liability under the policy, it may refuse to defend the lawsuit; "[t]his it does at its own risk, and if it later develops liability, or potential liability existed under the policy, the company will be held accountable to its insured, or to one who obtained judgment against its insured in the action it refused to defend." (State Farm Mut. Auto. Ins. Co. v. Flynt, 17 Cal. App.3d 538, 548 [95 Cal. Rptr. 296].)
As we have indicated, the complaint in the Cox personal injury lawsuit alleged, among other things, that the Dillons had the direction, management, control and custody of the premises and of the Ford tractor and surrounding equipment. In addition, the evidence presented in the court below shows that the Dillons were the lessees of the premises and suggests that they assumed the responsibility for scraping away the sand as the well was being developed; arguably, the Dillons were in control of the area, the Ford tractor and the surrounding equipment used in connection with the scraping operation. Because the Sharp truck was used to help extricate the tractor from the mud, it also is arguable that the insured vehicle was being used by the Dillons or that the Dillons were legally responsible for its use at the time of the accident. The crucial question, therefore, is whether the evidence shows that potential liability under the Hartford policies had arisen by virtue of the use of the truck by the Dillons.
(3) The permissive use coverage of an automobile insurance policy does not require that the vehicle be the proximate cause of an accident in the strict tort sense. (St. Paul Fire & Marine Ins. Co. v. Hartford Acc. & Indem. Co., 244 Cal. App.2d 826, 831 [53 Cal. Rptr. 650]; Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exch., 190 Cal. App.2d 194, 202 [11 Cal. Rptr. 762].) Consequently, the early cases applied a broad definition to the term "use" in order to uphold coverage whenever possible. Realizing there must be some relationship between the vehicle and the accident, recent decisions have taken a more sensible approach to the problem by narrowing the "use" concept, particularly in a case where the dispute is primarily between two insurance carriers and where an over-extension of the concept would result in a transfer of "liability from the insurer for the more culpable person or entity to the insurer for the innocent person or entity." (Travelers Ins. Co. v. Northwestern Mut. Ins. Co., 27 Cal. App.3d 959, 965 [104 Cal. Rptr. 283].)
In International Business Machines Corp. v. Truck Ins. Exch., 2 Cal.3d 1026, 1032 [89 Cal. Rptr. 615, 474 P.2d 431], the Supreme Court expressed *341 great concern over the injustice which could result from an over-extension of the "use" concept in insurance policies. The court stated: "Almost all of the cases presenting the issue of `use' of the vehicle by the shipper involved disputes between two insurance companies, as does this case, and a holding that the shipper constitutes a `user' of the vehicle generally results in a transfer of all or part of the ultimate liability from the insurer for the negligent entity to the insurer of an innocent entity. Such a ruling secures for the shipper an insurance rate disproportionately low relative to the hazards of his business and may ultimately tend to discourage the shipper from exerting due care in the maintenance of the premises. Moreover, the injured person in these cases is almost always an employee of the trucker, acting within the course of his employment, and thus entitled to workmen's compensation for his injuries as well as to his tort action against the negligent shipper. So far as we have discovered, the combination of injury to a third party and a possibly financially irresponsible shipper has occurred in only one reported case, American Auto. Ins. Co. v. Transport Indem. Co. (1962) 200 Cal. App.2d 543 [19 Cal. Rptr. 558]."
In Truck Ins. Exch. v. Webb, 256 Cal. App.2d 140, 145-146 [63 Cal. Rptr. 791], the court explained: "Although the word `use' must be given an all-inclusive connotation, there must be a causal connection between the use and the injury. The automobile is so much a part of American life that there are few activities in which the `use of an automobile' does not play a part somewhere in the chain of events. Clearly the parties to an automobile liability policy do not contemplate a general liability insurance contract. (See Gray v. Zurich Ins. Co., 65 Cal.2d 263, 274 [54 Cal. Rptr. 104, 419 P.2d 168].)
"The test for determining the existence of the requisite causal connection has been expressed in varying language. It has been stated that the resulting injury must be a `natural and reasonable incident or consequence of the use of the [automobile] for the purposes shown by the declarations, though not foreseen or expected....' and that the injury cannot be said to arise out of the use of an automobile `if it was directly caused by some independent act, or intervening cause wholly disassociated from, independent of and remote from the use of the [automobile].' (Schmidt v. Utilities Ins. Co., 353 No. 213....)"
In Camay Drilling Co. v. Travelers Indem. Co., 12 Cal. App.3d 237 [90 Cal. Rptr. 710], the insured trucks were towing drilling equipment from one drilling site to another; the trucks would move into a position 50 to 100 feet from the derrick, stop, winch the derrick forward, move *342 to a new position, and repeat the operation until the movement of the derrick was completed. At the time of the accident the trucks had come to a stop near their destination, and the foreman in charge of the moving operation was injured when he was struck by a piece of flow pipe which fell from the derrick. In holding that there was no coverage under the "use" clause of the insurance policy for the trucks the appellate court stated at pages 240-242: "We have concluded that the decision of the trial court in this case is strongly supported by the reasoning of the recent decision of our Supreme Court in International Business Machines Corp. v. Truck Ins. Exch., 2 Cal.3d 1026 [89 Cal. Rptr. 615, 474 P.2d 431]. That decision enunciates a sensible limitation upon the proper application of the `use' concept in determining the extent of insurance coverage for the permissive use of motor vehicles. Its reasoning exposes the unrealistic and unjust effects of further extending this concept to the point where it operates to transfer liability from the negligent entity to the insurer for the innocent entity especially in cases in which the motor vehicle was only a peripheral, inactive or incidental factor.
".... .... .... .... . .
"`In the present case, of course, negligence was the actionable wrong. The actionable negligence lay in the maintenance of ... [a third party's] equipment, not in his maintenance or use of the insured truck. In the words of the Missouri decision quoted in Webb [Truck Ins. Exch. v. Webb, 256 Cal. App.2d 140, 145-146 (63 Cal. Rptr. 791)] ... the injury was directly caused by an "independent act, or intervening cause wholly disassociated from, independent of and remote from the use of the [automobile]."'
".... .... .... .... . .
"The trucks insured by respondent herein were being used solely as movable winches utilized in dragging appellant's equipment a few hundred feet. No third party user of the highway was involved and the relationship between the injured party and his employer under the terms of the California Workmen's Compensation law or otherwise is not an issue. [Fn. omitted.] In such circumstance to require the non-negligent policyholder's insurance carrier to finance its employee's damage claim for the sole benefit of the negligent appellant's carrier would serve none of the beneficent dictates of public policy enunciated in Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 434 [296 P.2d 801, 57 A.L.R.2d 914], and in Wildman v. Government Employees' Ins. Co., 48 Cal.2d 31, 39-40 [307 P.2d 359]."
*343 In Harbor Ins. Co. v. Employers' Surplus Lines Ins. Co., 26 Cal. App.3d 559, 567 [103 Cal. Rptr. 49], the court observed: "The California rule is consistent with the test suggested by Professor Prosser in determining the existence of cause in fact in a negligence case, that is, whether the agency in question was a `material element and a substantial factor' in bringing about the injury. (Prosser on Torts (3d ed.) § 41, p. 244.)"
(4) We have concluded that the trial court's ruling that appellant was obligated under the comprehensive automobile liability sections of the policies to defend the Dillons in the Cox lawsuit was error. It is very evident that the personal injury action was not predicated on any theory that the Sharp truck was the cause or even contributed to the injury. It was based primarily on the theory that the Dillon tractor was defective and, secondarily, that the Dillons were in control of the premises and failed to provide the injured man with a safe place of employment. In addition, the undisputed evidence shows that the insured truck had no causal connection with the accident.
In fact, the uncontradicted evidence upon which the trial court must have found potential liability is similar to the facts recited in Camay Drilling Co. v. Travelers Indem. Co., supra, 12 Cal. App.3d 237, upon which the appellate court declined to find coverage under an automobile insurance policy. In the case at bench, as in Camay, the truck had come to a stop and was standing still when the accident occurred. Also, like Camay, an independent act, wholly disassociated with the use of the insured vehicle, directly caused the injury to the alleged insured; according to Cox's own testimony, which is the only evidence on the point, the accident was caused either because he left the tractor in gear when he stepped down to unfasten the chain or the gear mechanism was defective, causing the vehicle to move on its own volition. As was true in Camay, "`[t]he actionable negligence lay in the maintenance of ... [the tractor] not in [the] maintenance or use of the insured truck.'"
Furthermore, this is not a case in which the alleged insured was insisting on a defense from Hartford. On the contrary, it is reasonably apparent that the dispute in the court below was between two insurance carriers and that the declaratory relief action was instituted at the instance of one of the carriers. The record shows that the Dillons were being defended in the Cox lawsuit by Cal-Farm Insurance Company. The record also shows that the request that Hartford provide a defense for the Dillons came from the attorney assigned by Cal-Farm to defend the Dillons in the personal injury lawsuit. Under these circumstances, the trial court's judgment ordering appellant to provide a defense to the Dillons in the Cox lawsuit raises two serious consequences; (1) it raises a troublesome question as to which company shall be in charge of the defense in the lawsuit, and (2) it could *344 have the effect of shifting the responsibility for the defense from the insurer of the culpable party to the insurer of the innocent party.
Because the evidence presented in this case shows no potential liability under the comprehensive automobile liability sections of the Hartford policies, and because the Dillons already were receiving a defense in the Cox lawsuit, the court erred in ordering Hartford to provide a defense in that lawsuit. To paraphrase the words of Justice Ault in State Farm Mut. Auto. Ins. Co. v. Flynt, supra, 17 Cal. App.3d 538, 548, if later it develops that liability or potential liability existed under the Hartford policies, the company will be held accountable to the Dillons for its refusal to defend them in the personal injury action.
(5) We turn to the comprehensive general liability sections of the Hartford policies. These sections, among other coverage, purport to cover the named insureds and their employees "with respect to the operation, for the purpose of locomotion upon a public highway, of mobile equipment registered under any motor vehicle registration law." They also cover "any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any other person or organization legally responsible for such operation."
Respondents concede that they are not specified as additional insureds under these sections of the policies. They argue that although the policies do not cover automobile accidents, they cover motor vehicle accidents and that the Dillons were insured thereunder by operation of law. Respondents maintain that Sharp and Abajian, the named insureds in the comprehensive general liability sections of the Hartford policies, were using the tractor when the accident occurred and that because the Dillons were legally responsible for the vehicle's use the latter were covered by virtue of section 11580.1 of the Insurance Code as it read at the time of the accident.[1] The section read in pertinent part as follows: "No policy of liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle shall be issued or delivered in this state to the owner of a motor vehicle, or shall be issued or delivered by any insurer licensed in this state, upon any motor vehicle then principally garaged or principally used in this state unless it contains the following provisions:
".... .... .... .... . .
"(d) Provision insuring the insured named therein and to the same extent *345 that coverage is afforded such named insured in respect to said described motor vehicles, any other person using, or legally responsible for the use of, said motor vehicles, provided the motor vehicles are being used by the named insured or with his permission, express or implied."
It is doubtful that the comprehensive general liability coverage of the Hartford policies is even subject to the provisions of subdivision (d) of section 11580.1 as it read at the time of Cox' accident. The coverage is set forth in a separate part of the insurance contract and apparently was intended to protect the named insureds against any occurrence connected with their business activities other than automobile accidents occurring off of the business premises. (6) As the Supreme Court pointed out in Herzog v. National American Ins. Co., 2 Cal.3d 192, 197 [84 Cal. Rptr. 705, 465 P.2d 841], in determining whether a policy is an automobile or motor vehicle liability policy subject to the Wildman doctrine, a court must "take cognizance of `the intent and reasonable expectations of the parties in entering into the agreement.'" Also, in Home Indemnity Co. v. Mission Ins. Co., 251 Cal. App.2d 942, 953 [60 Cal. Rptr. 544], the court said: "The automobile financial responsibility law is `designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injury through the negligent use of those highways by others.' (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 434 [296 P.2d 801, 57 A.L.R.2d 914].) The implementation of this policy warrants the proliferation of the coverage granted by a general comprehensive liability policy which was authorized in the case last cited. Where, however, the policy purports to cover automobile liability in one part and general liability in another the application of the same principles to the latter coverage serves to rewrite the policy to the exclusion of the specific provisions which are applicable to the automobile coverage. No authority is found for such a procedure."
We do not find it necessary to resolve this doubt. With the exception of the named insureds and their employees, the sections in question provide insurance coverage for persons who, with the permission of the insureds, use mobile equipment registered under any motor vehicle registration law and any person responsible for such use only if the equipment is registered to the named insured. Consequently, even if we were to assume that these sections of the Hartford policies qualify as automobile or motor vehicle liability policies and that the Dillons' tractor was being used by Sharp and Abajian at the time of the accident, the Dillons still would not be covered thereunder. The tractor was not registered to Sharp or Abajian and hence was not a described vehicle; nor were the Dillons covered by *346 operation of law. It is not nor has it ever been the public policy of this state to require an insurance company which issues an automobile or motor vehicle liability policy to cover persons other than the named insured unless such persons are permissive users of or are legally responsible for the use of a described vehicle. (State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 9 Cal. App.3d 508, 519-526 [88 Cal. Rptr. 246]; see State Farm Mut. Auto. Ins. Co. v. Flynt, supra, 17 Cal. App.3d 538, 546; cf. Mid-Century Ins. Co. v. Hernandez, 275 Cal. App.2d 839, 849 [80 Cal. Rptr. 448].)
The judgment is reversed.
Franson, J., concurred.
BROWN (G.A.), P.J.
I concur with the reasoning and decision of the court. The evidence before the trial court makes clear that the Sharp truck was not the cause of nor did it contribute to the accident in which Cox was injured. The more restrictive definition of the use concept applied to those facts commands the result. So limiting the idea of use as that term is used in automobile liability insurance policies is logical, is doctrinally sound, and realistically responds to the equities involved.
I do not agree, however, with any implication that may be drawn from the language of the decision that such an interpretation is limited to situations where the dispute is between two insurance companies. The same interpretation should be applied whether the controversy is between an individual and an insurance company or otherwise. I see no justification for the popular idea that somehow an insurance company is to be judged by a different standard of justice than an individual or other litigant. In my opinion, all litigants should stand equal before the courts.
A petition for a rehearing was denied May 1, 1974, and the opinion was modified to read as printed above. Respondents' petition for a hearing by the Supreme Court was denied June 5, 1974.
NOTES
[1] See Statutes 1965, chapter 1968, page 4496, section 1.
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945 F.2d 395
Huffman (Andrew J., Jr., Marie S.)v.Consol- Pennsylvania Coal Company, Rhein Braun U.S.,Monongahela Railway Company, Boggs (David), Pollock (Ewing),Pollock, Pollock and Thomas, The Upshur Agency, Inc.,Consolidated Coal Company, Consol-Land Development Company,Rheinische Braunkohlenwerke, Verkaufsgesellschaft (Maria Therese)
NO. 90-3491
United States Court of Appeals,Third Circuit.
SEP 24, 1991
Appeal From: W.D.Pa.,
Smith, J.,
740 F.Supp. 1126
1
AFFIRMED.
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991 F.Supp. 987 (1998)
AMERICAN AUTOMOTIVE ACCESSORIES, INC. and Emalfarb Investment Corp., Plaintiffs,
v.
Alan FISHMAN, Defendant.
No. 95 C 5156.
United States District Court, N.D. Illinois, Eastern Division.
January 5, 1998.
*988 Marvin N. Benn, Dawn Marie Cassie, George W. Hamman, Jeanne Marie Hoffmann, Hamman & Benn, Chicago, IL, for Plaintiffs.
Mark H. Schiff, Steven M. Ruffalo, Arnold M. Flank, Lee J. Janger, Jennifer Ann Dorski, Fuchs & Roselli, Ltd., Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
LEVIN, United States Magistrate Judge.
Pending is Defendant Alan Fishman's motion for summary judgment. For the reasons set forth below, this court grants the motion.
FACTS
Plaintiffs American Automotive Accessories ("American") and Emalfarb Investment Corporation ("Emalfarb") are real estate developers doing business in Illinois. (Def. 12(m) ¶ 1,2; Pls. 12(n) ¶ 1,2.) Defendant Alan Fishman ("Fishman") owns or operates sixteen currency exchanges in Illinois, including the "Loyola `L' Currency Exchange, Inc." ("Loyola L") located in Chicago. (First Amended Complaint (the "Complaint") and Answer at ¶ 3.) Plaintiffs assert that Fishman conspired with Nicholas Favia ("Favia"), a project manager for some of Plaintiffs' real estate development projects (see Def. 12(m) ¶ 7; Pls. 12(n) ¶ 7), to maintain a check-cashing scheme to cash fraudulent checks through Loyola L.
According to Plaintiffs, Favia was responsible for their check requisitions and making payments to subcontractors and suppliers. (Pl. 12(n) Add. Facts ¶ 2, Ex. A ¶ 6.) Favia prepared check request forms requesting a certain sum for a particular subcontractor and/or supplier. (Pl. 12(n) Add. Facts ¶ 2, Ex. A ¶ 8.) This form would then be mailed *989 from Favia's Illinois office to the office of Plaintiffs' president, Mark Emalfarb, in Florida. (Id.) The Florida office would normally prepare the checks which Mark Emalfarb would sign, and the request forms and the checks would be mailed back to Favia in Illinois. (Id.) On some occasions, Favia or the Illinois office would prepare the checks and mail them to Mark Emalfarb in Florida for his signature. (Id.) According to Plaintiffs, Favia began sending Mark Emalfarb check request forms requesting checks for alleged payments to what Plaintiffs much later discovered were fictitious and/or phony payees. (Pl. 12(n) Add. Facts ¶ 4, Ex. A ¶ 9.)
The parties agree that, at some point, Favia called his friend, Joe Lewis ("Lewis"), and told Lewis, that he needed to be able to cash a check. (Pl. 12(n) Add. Facts ¶ 6, Ex. C at 16-21; Def. 12(n) Reply ¶ 6.) Lewis, who knew Defendant well through regular business contacts, then called Defendant on or about March 18, 1991 with regard to cashing a single check for Favia. (Pl. 12(n) Add. Facts ¶ 6, Ex. C at 14-15; Def. 12(n) Reply ¶ 6.) Defendant was mainly just concerned "that the checks be good. That's all." (Pl. 12(n) Add. Facts ¶ 6.) Lewis told Defendant he didn't have "to worry about the check," and Lewis vouched for it. (Pl. 12(n), Ex. C at 20-21.) Then, when one of the Loyola L employees spoke by phone with Defendant regarding cashing a check for Favia, Defendant instructed that the employee cash the check. (Pls. 12(n) Add. Facts ¶ 9; Def. 12(n) Reply ¶ 9.)
Plaintiffs allege that subsequently, through early 1995, Favia obtained checks from Plaintiffs by making repeated misrepresentations that the checks were needed to pay for construction and related expenses incurred in advancing Plaintiffs' construction projects. (Def. 12(m) ¶ 9; Pls. 12(n) ¶ 9.) Favia then repeatedly took Plaintiffs' checks made out to different entities to Loyola L and presented the checks for payment for the amount stated on their face less Loyola L's service fee (which was from 1 to 1.5%). (Def. 12(m) ¶ 10; Pls. 12(n) ¶ 10; Exs. A & B to the Complaint.) According to Defendant (and Plaintiffs presented no contrary facts), these checks were then delivered from Loyola L via private armored carrier service to Lincoln National Bank along with other checks cashed at Loyola L in the ordinary course of business. (Def. 12(m) ¶ 10; Pls. 12(n) ¶ 10.)
Although Plaintiffs allege Defendant played an active role in Favia's check cashing scheme, Defendant denies that he gave approval for the cashing of any alleged fraudulent or fictitious checks presented by Favia after Favia's first visit. (Def. 12(n) Reply ¶ 12; Def. Mem., Ex. A.) Defendant further denies any knowledge of, or involvement in, any check cashing scheme with Favia or any other individual at any time. (Id.) Lewis has also signed an affidavit denying having any knowledge of or involvement in establishing a check cashing scheme for Favia or Fishman. (Def. Mem., Ex. B.) At his subpoenaed deposition, Favia asserted his Fifth Amendment privilege against self-incrimination and refused to answer questions regarding the allegations raised in Plaintiffs' complaint. (Def. Mem., Ex. C.)
Plaintiffs maintain that Fishman's involvement in the scheme is indicated by the fact that normal check cashing procedures at Loyola L were not followed with respect to Favia's checks. Normal check cashing procedures at Loyola L include having a signature card on file for customers who cash checks. (Pls. 12(n) Add. Facts ¶ 10; Def. 12(n) Reply ¶ 10.) A Loyola L employee filled out a signature card for Favia dated February 26, 1992 which mentioned "Libertyville Lumber." (Pls. 12(n) Add. Facts ¶ 15; Def. 12(n) Reply ¶ 15, Ex. D, Dep. Ex. 1.) Nevertheless, Loyola L employees cashed other checks from Favia made payable to other entities without checking Favia's signature card or checking with the employer or company on the check to verify the check's accuracy. (Pls. 12(n) Add. Facts ¶ 12, Ex. D at 49-51, Ex. E at 25-26; Def. 12(n) Reply ¶ 10.)
In addition, Defendant testified that it was Loyola L's policy that if an individual presented a check to Loyola L for over $100, the Loyola L employee would call the company who was the drawer of the check for verification. (Pls. 12(n) Add. Facts ¶ 10, Ex. B at pp. 28-29; Def. 12(n) Reply ¶ 10.) Loyola L *990 employees further stated that the cashier would call Fishman or one of his sons for approval before cashing a check over $2000 or $3000. (Pls. 12(n) Add. Facts ¶ 10, Ex. D at pp. 19-24, Ex. E at p. 10; Def. 12(n) Reply ¶ 10.) The above procedures were not followed with respect to the American and Emalfarb checks Favia cashed at Loyola L. (Id.) Nor were the procedures followed after an American check cashed by Favia was returned to Loyola L for insufficient funds in February 1992. (Pls. 12(n) Add. Facts ¶ 11, Ex. D at pp. 51-55; Def. 12(n) Reply ¶ 11.)[1]
Plaintiffs state that around February 1995, Mark Emalfarb, his assistant, and his accountant began to discover that Favia had been requesting checks made payable to unintended and/or fictitious payees. (Pls. 12(n) Add. Facts ¶ 17.) Plaintiffs state that they discovered a total of 16 Emalfarb checks dated from March 1991 through December 1991 totaling $27,363.76 and 54 American checks dated from March 1992 through December 1994 totaling $156,807.36 made payable to unintended and/or fictitious payees. (Pls. 12(n) Add. Facts ¶ 22.)
Defendant states that the only sums Loyola L collected from Favia's checks was, at most, $2,760.57 resulting from the payment of Loyola L's standard 1-1.5% fee. (Def. Mem., Ex. A ¶ 13.)
On or about August 24, 1995, Plaintiffs entered into a settlement agreement with Favia. (Pls. 12(n) Add. Facts ¶ 21.) In this settlement, Favia paid Plaintiffs $196,528.04. (Pls. Resp., Ex. D at p. 2.) Plaintiffs allege that this settlement did not compensate Plaintiffs for their losses caused by the fraudulent check cashing scheme. Instead, Plaintiffs allege the settlement compensated them for various other losses and expenses incurred by Plaintiffs and caused by Favia. (Id.)
ISSUES
Plaintiffs' Complaint alleges that Defendant violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), § 1962(c), in that Defendant was employed by or associated with an enterprise engaged in, or the activities of which affect, interstate or foreign commerce, and conducted or participated, directly or indirectly, in the conduct of such enterprises' affairs through a pattern of racketeering activity. Plaintiffs' Complaint also alleges that Defendant violated RICO § 1962(d), in that Defendant conspired to violate provisions of RICO § 1962(c) with Favia, as part of a pattern of racketeering activity, effectuating and maintaining their criminal and fraudulent check cashing scheme by utilizing the mails and telephone wires in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 1343.
ANALYSIS
I. SUMMARY JUDGMENT STANDARD.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir.1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the nonmoving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995).
The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an *991 element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
II. 18 U.S.C. § 1962(c).
To succeed in establishing a cause of action under § 1962(c), plaintiffs must establish "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346(1985); Richards v. Combined Ins. Co. of America, 55 F.3d 247, 249 (7th Cir.1995).[2] The remedy for an injury to business or property caused by violation of § 1962 is a civil one: the recovery of treble damages plus costs and reasonable attorney's fees. 18 U.S.C. § 1964(c). Proof of liability is by a preponderance of the evidence. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992).
Initially, Plaintiffs assert, and Defendant does not dispute, that Loyola L satisfies the definition of an enterprise under the RICO statute.
Once the existence of an enterprise is established, the plaintiff bears the burden of demonstrating that the defendant "conduct[ed] or participat[ed], directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity...." 18 U.S.C. § 1962(c).[3] A "pattern of racketeering activity" under RICO consists of at least two predicate offenses that "are related and that amount to, or threaten the likelihood of, continued racketeering activity." J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935 F.2d 815, 820 (7th Cir.1991) (citing H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). Thus, predicate offenses under RICO form a pattern only when they have both "continuity" and a "relationship." Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. at 3285 n. 14. See also Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986) (relevant factors in determining whether there is the requisite "continuity" and "relationship" are: (a) the number and variety of predicate acts and the length of time over which the acts are committed; (b) the number of victims; (c) the presence of *992 separate schemes; and (d) the occurrence of distinct injuries).
The racketeering activity upon which Plaintiffs premise their RICO claims is mail and wire fraud. See 18 U.S.C. §§ 1341, 1343. Such a RICO claim requires that the plaintiffs establish that the defendant: (1) has participated in a scheme to defraud, and (2) has mailed or knowingly has caused to be mailed a letter or other material, or used the wire service, for the purpose of executing the scheme. McDonald v. Schencker, 18 F.3d 491, 494 (7th Cir.1994); Marcial v. Coronet Ins. Co., 880 F.2d 954, 958 (7th Cir.1989). To support their RICO claim here, therefore, Plaintiffs must establish that Defendant knowingly schemed to defraud Plaintiffs of their property and used the mail or wire services in furtherance of this scheme. See Marcial, 880 F.2d at 958.
Defendant argues that he cannot be liable under § 1962(c) because there is no evidence that he committed a pattern of racketeering activity, i.e. at least two predicate offenses "related and that amount to, or threaten the likelihood of, continued racketeering activity." Initially, Defendant asserts that neither he nor Loyola L employees at his direction ever used the United States Postal Service or engaged in interstate use of any wire service in connection with any of actions Plaintiffs allege he conducted. (Def. Mem., Ex. A at ¶ 5.) Defendant asserts that all of Loyola L's banking transactions occurred via a contracted armored car carrier. (Id. at ¶ 10.)[4] Defendant also states that he never made interstate telephone calls with regard to any of the communications alleged in Plaintiffs' complaint; the initial calls between Favia, Lewis and Defendant setting up Favia's initial check cashing at Loyola L occurred while all parties were located within Illinois.[5]
In opposition to summary judgment, Plaintiffs argue that the evidence demonstrates that Defendant can be charged directly with the acts of mail and wire fraud constituting the RICO predicate acts and pattern of racketeering activity. Plaintiffs note that: (1) Favia and Defendant came together for the cashing of the first check through a mutual friend, Lewis; (2) Defendant, then, agreed to cash the first check for Favia; (3) Favia continued to return to Loyola L to cash checks made out to different entities; (4) the Loyola L cashiers continued to cash the checks presented by Favia; and (5) Defendant accepted the fruits of the fraudulent scheme because the Loyola L corporate entity deducted and retained a percentage of the check cashed by Favia as a fee.
After a careful review of the facts set forth by Plaintiffs, this court finds that the evidence Plaintiffs present in opposition to Defendant's summary judgment motion does not raise a material issue of fact regarding whether Defendant conducted or participated (as defined above) in the check cashing scheme through a pattern of racketeering activity. Plaintiffs, dispositively, have simply not presented any evidence that Defendant made any interstate phone calls or utilized the postal service regarding the check cashing scheme. Therefore, Plaintiffs have not established the requisite mail or wire fraud essential to a § 1962(c) violation. See Marcial, 880 F.2d at 958.[6]
*993 Plaintiffs additionally insinuate that Defendant indirectly participated in the scheme and is therefore subject to "aider and abettor liability" under § 1962(c).[7] As Magistrate Judge Ashman explained in ruling on Defendant's motion to dismiss, the elements for pleading a claim of aiding and abetting are: (1) the existence of an independent wrong committed by the primary offender; (2) the rendering of substantial assistance to the primary wrongdoer by the aider and abettor; and (3) the requisite scienter on the aider and abettor. R.E. Davis Chem. Corp. v. Nalco Chem. Co., 757 F.Supp. 1499, 1515 (N.D.Ill.1990). "Substantial assistance means more than just a little aid. To put it another way, to be held liable as an aider and abettor, a person must in some sort associate himself with the venture, ... participate in it as something that he wishes to bring about, [and] seek by his action to make it succeed." FMC Corp. v. Boesky, 727 F.Supp. 1182, 1200 (N.D.Ill.1989) (internal citations and quotations omitted).
A thorough review of the facts set forth by Plaintiffs shows that Plaintiffs cannot survive summary judgment on their aider and abettor theory. Plaintiffs have not demonstrated that there is a material issue of fact that Defendant substantially assisted Favia's fraudulent cashing of the checks. Nor have Plaintiffs set forth evidence which would raise a material issue of fact that Defendant had the requisite intent to assist in such a scheme.
Specifically, the mere fact that Defendant authorized the cashing of the initial check, after being assured by a trusted business acquaintance, inter alia, that the check was "good," is, in isolation, innocuous on its face. Even coupling this with the fact that employees of the currency exchange subsequently uncarefully cashed Favia's properly signed checks (which cleared for years), Plaintiffs evidence, even with all reasonable inferences therefrom favorable to Plaintiffs, is insufficient to meet the requisite scienter (or substantial assistance) requirements against the Defendant here. In short, in the face of the Defendant's (and Lewis') sworn evidence of non-knowledge, it cannot be reasonably inferred from a single unspecial check authorization and mere later check cashings (albeit uncareful) by firm employees that Defendant knew of (or assisted in) Favia's fraudulent check cashing scheme.
In sum, summary judgment must be granted Defendant as to Plaintiffs' § 1962(c) claim.[8]
III. 18 U.S.C. § 1962(d).
Section 1962(d) prohibits a conspiracy to violate any of RICO's other substantive provisions, including § 1962(c). 18 U.S.C. § 1962(d). Here, plaintiffs allege that defendants conspired to commit a § 1962(c) violation. As with any conspiracy charge, in order to prevail on their claim, plaintiffs must proffer evidence of an agreement between and among the defendants. See United States v. Neapolitan, 791 F.2d 489, 497 (7th Cir.1986) ("[A] conspiracy to violate RICO should not require anything beyond that required *994 for a conspiracy to violate any other federal crime.").
Agreement is the cornerstone of any RICO conspiracy claim. Gagan v. American Cablevision, Inc., 77 F.3d 951, 960 (7th Cir. 1996). In fact, it is the agreement to violate RICO's substantive provisions, not the actual violations themselves, that imposes liability under § 1962(d). Schiffels v. Kemper Fin. Serv., Inc., 978 F.2d 344, 348 (7th Cir.1992). The Seventh Circuit has observed:
"From a conceptual standpoint a conspiracy to violate RICO can be analyzed as composed of two agreements [.]" Neapolitan, 791 F.2d at 499. The first is "an agreement to conduct or participate in the affairs of an enterprise [or to acquire or maintain any interest in or control of any enterprise] through a pattern of racketeering activity." Id. at 498. The second is "an agreement to the commission of at least two predicate acts." Id. at 499. If either aspect of the agreement is lacking then there is insufficient evidence that the defendant embraced the objective of the alleged conspiracy. Finally, a "RICO conspiracy, like all conspiracies, does not require direct evidence of agreement; an agreement can be inferred from the circumstances." Id. at 501 (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)).
Gagan, 77 F.3d at 961.[9]
Accordingly, to withstand a motion for summary judgment, Plaintiffs must show that a genuine issue exists as to whether Defendant agreed to conduct (or participate in the conduct of) the check cashing scheme through a pattern of racketeering activity, and that Defendant further agreed that someone would commit at least two predicate acts to accomplish those goals. Plaintiffs are not required to show, however, that Defendant committed the predicate acts himself, Schiffels, 978 F.2d at 348, or that Defendant agreed to commit the predicate acts himself or even participate in their commission. Neapolitan, 791 F.2d at 498 (breadth of RICO conspiracy liability extends even to "those persons who while intimately involved in the conspiracy, neither agreed to personally commit nor actually participated in the commission of the predicate" offenses). Rather, Plaintiffs need only demonstrate that Defendant agreed that the acts would be committed on behalf of the conspiracy. See, e.g., United States v. Quintanilla, 2 F.3d 1469, 1484 (7th Cir.1993); United States v. Campione, 942 F.2d 429, 437 (7th Cir.1991).
In its motion, Defendant argues that there is no evidence that Fishman agreed that two predicate acts would be committed on behalf of the conspiracy. Initially, Defendant states that he only authorized the cashing of the first check, innocuously, after a trusted business acquaintance (Lewis) vouched for the check and stated the check was "good." Defendant points to Lewis' affidavit, which Defendant maintains is unrebutted, which expresses Lewis had no knowledge or involvement in Favia's check cashing scheme. Defendant further states that, in any event, his permission for Favia to cash one check on one occasion does not establish Defendant's ongoing participation in the alleged check cashing scheme. Instead, Defendant maintains that, after Favia's first transaction at Loyola L, Loyola L's employees took it upon themselves to cash the checks presented by Favia. Defendant argues that in the face of his sworn affidavit of non-knowledge and non-participation any perceived check cashing shortcomings by employees at Loyola L do not establish his agreement to or knowing participation in the check cashing scheme or the commission of any predicate act under RICO.
In response, Plaintiffs argue that the evidence demonstrates that Fishman was involved in a RICO conspiracy. Plaintiffs note that the evidence demonstrates that Defendant authorized Favia to cash his first check. Plaintiffs note that Loyola L employees continued to cash the checks presented by Favia regardless of who was listed on the check as the payee. Plaintiffs additionally argue that Loyola L employees did not follow usual *995 safeguards or procedures set up by the currency exchange in dealing with Favia's checks (even after one of Favia's checks was returned to Loyola L for insufficient funds).[10]
Plaintiffs also suggest that certain deposition testimony provides evidence of an agreement with Favia. A careful review of the deposition testimony, however, fails to support Plaintiffs' claim. Plaintiffs first suggest that Defendant's own deposition testimony demonstrates his agreement with Favia. Defendant, however, testified that he could not recall if he had ever met Favia and that his only communication with Favia was that Favia "called [Defendant] possibly to ask [Defendant] if he [could] cash one of his company checks." (Pls. 12(n), Ex. B at pp. 33-34.) Plaintiffs also suggest that deposition testimony by a Loyola L employee demonstrates that Defendant authorized Favia to cash a later check on February 26, 1992. However, review of the deposition testimony cited discloses that the employee was referring to the initial check cashing incident that the Defendant approved, and not to a subsequent check cashing incident. (Pls. 12(n), Ex. E at pp. 10-23.)
This court finds that the deposition testimony and other evidence Plaintiffs have set forth in opposition to Defendant's summary judgment motion with regard to the § 1962(d) claim is insufficient to meet Plaintiffs' burden of proof that Defendant was involved in a conspiracy. Although it is true that evidence of a conspiratorial agreement can be proven by circumstantial evidence, see Gagan, 77 F.3d at 961, Defendant's alleged membership in the conspiracy here cannot reasonably be inferred from the circumstantial evidence presented by the Plaintiffs herein.
In sum, Plaintiffs have not carried their burden of presenting or pointing to evidence which demonstrates the existence of a genuine issue of material fact to support a RICO conspiracy claim under § 1962(d).
CONCLUSION
For the reasons set forth above, Defendant's motion for summary judgment is granted, and the cause is dismissed with prejudice.
NOTES
[1] Defendant states that he has "insufficient knowledge to admit or deny whether Loyola L followed its normal check cashing procedures" but fails to provide any evidence to the contrary. (Def. 12(n) Reply at ¶ 10.)
[2] As a preliminary matter, Defendant argues that Plaintiffs lack standing under 18 U.S.C. § 1964(c), suggesting that Plaintiffs were reimbursed for any injury they incurred in the check cashing scheme in receiving Favia's settlement payment. In dealing with this issue on Defendant's motion to dismiss, Magistrate Judge Ashman stated "Plaintiffs would not lose standing if they had been compensated for unrelated transactions or injuries as long as they suffered an uncompensated injury resulting from [Defendant's] alleged RICO violation." American Auto. Accessories, Inc. v. Fishman, No. 95 C 5156, 1996 WL 480369, at *4 (N.D.Ill. Aug.22, 1996). Plaintiffs argue that any sums they received from the Favias were allocated as compensation for various other losses and expenses incurred by Plaintiffs and caused by Favia as set forth in the August 24, 1995 settlement agreement. (See Pls. 12(n), Ex. E at p. 5.) Because Defendant has not demonstrated as a matter of law that the settlement money received by Plaintiffs concerned the funds converted by the check-cashing scheme, for purposes of this summary judgment motion Defendant's standing argument must fail.
[3] In Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court explained that the term "conduct" in the RICO statute involves some act of direction, while the term "participate" as it is used in the phrase "participate ... in the conduct of ... affairs" inheres a role in that direction. Id. at 179, 113 S.Ct. at 1170. In MCM Partners, Inc. v. Andrews-Bartlett & Associates, Inc., 62 F.3d 967 (7th Cir.1995), the Seventh Circuit articulated a distinction between defendants "outside" the enterprise and those who are "inside" the enterprise by virtue of their membership therein and relied on the nature of the enterprise as a basis for its decision. Id. at 978. Specifically, the court drew a distinction between the defendant in Reves, an accounting firm considered an "outsider" to the enterprise by the Court, and the two associations at issue in MCM Partners which were alleged to be part of the enterprise itself. Id. at 979. According to Reves and MCM Partners, "outsiders" who assist in an enterprise's affairs, without more, are not liable under RICO while "insiders" who through the chain of command either make or knowingly carry out the enterprise's decisions may be held accountable.
[4] Defendant additionally argues that any alleged communications from Loyola L to Plaintiffs' banks could not be deemed in furtherance of any alleged scheme to defraud Plaintiffs because those communications placed Plaintiffs on notice of the alleged scheme, e.g. every transaction consummated by Favia at Loyola L was disclosed to Plaintiffs' bank (and presumedly Plaintiffs) on the reverse side of every check. See, e.g., Spiegel v. Continental Illinois Nat'l Bank, 790 F.2d 638, 649 (7th Cir.1986).
[5] The federal wire fraud statute extends only to interstate communications. 18 U.S.C. § 1343. See also Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1025 n. 7 (7th Cir.1992).
[6] The court notes also that the evidence relied on by the Plaintiffs simply is insufficient to raise a genuine issue of material fact as to whether the individual Defendant "knowingly" schemed to defraud Plaintiffs of their property.
For example, Plaintiffs argue that Loyola L's deduction and retention of a percentage of each check cashed by Favia as a fee demonstrates that Defendant participated in the fraudulent check cashing scheme because a person "who knowingly accepts the fruits of fraudulent conduct is also guilty of that fraud." See Terrell v. Childers, 920 F.Supp. 854, 866 (N.D.Ill.1996). This argument must fail because Plaintiffs have not set forth sufficient evidence to meet their burden that Defendant, as opposed to Loyola L, accepted the 1 to 1.5% check fee and that Defendant accepted that fee with knowledge of the check cashing scheme. (See also discussion infra at p. 993.)
[7] Defendant argues that there is no civil "aider and abettor" liability under § 1962(c). In ruling on Defendant's motion to dismiss, Magistrate Judge Ashman found that there is "aider and abettor" liability under the RICO statute. See American Auto. Accessories, Inc. v. Fishman, No. 95 C 5156, 1996 WL 480369, at *6-7 (N.D.Ill. Aug.22, 1996). Defendant has not adequately argued why this court should disturb this law of the case, especially in light of the fact that the Seventh Circuit "has not commented on the possibility of aiding and abetting liability in civil RICO actions." In re Vicars Ins. Agency, Inc., 96 F.3d 949, 954-55 (7th Cir.1996).
[8] Defendant also argues that Plaintiffs' claim should be rejected because "but for Plaintiffs' own neglectful and sloppy business practices in issuing and signing each and every check over a period of four years, Favia's conduct could not have occurred." Defendant argues that § 4-406 of the Illinois Uniform Commercial Code imposes a duty on payors to exercise reasonable promptness in discovering and reporting unauthorized signatures to the payor bank. Plaintiffs note that § 4-406(c) pertains to the discovery and reporting of "authorized signatures" of bank customers, i.e., the Plaintiffs. See 810 ILCS 5/4-406, cmt. 5 ("Section 4-406 imposes no duties on the drawer to look for unauthorized endorsements."). Therefore, the Illinois statute governing the relationship between Emalfarb, American and their banks is not relevant here.
[9] Too, the conspiracy agreement must be "objectively manifested ..." United States v. Balzano, 916 F.2d 1273, 1289 (7th Cir.1990).
[10] Plaintiffs, of course, seek to infer more, but it nonetheless bears noting that, by themselves, "acts of negligence are not predicate acts under the RICO statute ..." Brandenburg v. Seidel, 859 F.2d 1179, 1188 (4th Cir.1988).
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205 P.3d 84 (2009)
227 Or. App. 152
STATE of Oregon, Plaintiff-Respondent,
v.
Chester Lawrence GUNTER, Jr., Defendant-Appellant.
CR0200095, A119373.
Court of Appeals of Oregon.
Submitted on Remand October 28, 2008.
Decided April 1, 2009.
*85 Rebecca A. Duncan, Assistant Chief Defender, Office of Public Defense Services, for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General, for respondent.
Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.
HASELTON, J.
This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Gunter, 202 Or. App. 209, 121 P.3d 16 (2005) (Gunter I), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008). State v. Gunter, 345 Or. 315, 195 P.3d 63 (2008). In Gunter I, we remanded for resentencing because the court had imposed upward departure sentences on several of defendant's convictions based on judicial factfinding. That factfinding constituted plain error, and we exercised our discretion to correct it under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). The issue on remand is whether, in light of Ramirez and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007), we properly exercised our Ailes discretion. As explained below, we conclude that we should not exercise our discretion to require resentencing. Accordingly, we affirm.
Defendant was convicted of two counts of second-degree robbery, ORS 164.405, one count of first-degree kidnapping, ORS 163.235, one count of first-degree rape, ORS 163.375, one count of first-degree sodomy, ORS 163.405, and one count of first-degree unlawful sexual penetration, ORS 163.411, all arising from his conduct on December 30, 2001. That morning, defendant entered a Starbucks coffee shop. He informed the two employees that he had a gun and indicated that he intended to rob the store. He then instructed one of the employees to remain in the store and count to 100. He took the other employee to his truck, drove her some *86 distance away, and then sexually penetrated, sodomized, and raped her. After he let her leave, she ran to a nearby house and called 9-1-1.
On the two robbery convictions, the court imposed 70-month mandatory minimum sentences pursuant to ORS 137.700. On each of the remaining convictions, the court imposed an upward departure sentence of 120 months, which exceeded the mandatory minimum sentences for those crimes,[1] based on findings that each of those crimes involved (1) deliberate cruelty and (2) permanent injury to the victim. The court did not specify that either of those factors would be independently sufficient to support the departure sentences. The court also imposed consecutive sentences on all counts. Consequently, the court imposed a total of 620 months' incarceration on all convictions.
On appeal, defendant argues that the imposition of departure sentences ran afoul of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Given that each of the court's bases for departure was predicated on judicial factfinding, we agree with defendant that the imposition of the departure sentences constituted error apparent on the face of the record. ORAP 5.45.
Thus, the issue on remand reduces to whether we should exercise our discretion under Ailes to correct that error in the circumstances of this case. Even more particularly, because the sentencing court did not specify that either departure factor was independently sufficient, if we determine that we should exercise our Ailes discretion with respect to any one of the factors, a remand for resentencing is required. See generally State v. Wilson, 111 Or.App. 147, 826 P.2d 1010 (1992). For the reasons that follow, we decline to exercise our discretion to correct the sentencing court's error.
In determining whether to exercise our discretion, we are guided by numerous considerations, including "the competing interests of the parties; the nature of the case; the gravity of the error; [and] the ends of justice in the particular case." Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. The "interests of the parties" factor includes whether the state has "a significant interest in avoiding a second, unnecessary sentencing hearing." Ramirez, 343 Or. at 513, 173 P.3d 817. Where we are able to conclude that there would be "no legitimate debate" that a jury would find the facts necessary to support an enhanced sentence, the defendant has no significant interest in resentencing and, concomitantly, the state does have a significant interest in avoiding an unnecessary resentencing. Id.
Here, the state argues on remand that there is "no legitimate debate" that a jury would have found the two aggravating factors on which the trial court based defendant's departure sentences. The state then recounts in detail the facts supporting defendant's convictions, as well as evidence presented at the sentencing hearing describing the effect the crimes have had on the victim.
A detailed recitation of the facts would be of no assistance to the bench, the bar, or the public. Suffice it to say that, with respect to deliberate cruelty, the victim of the sexual attacks testified in detail both at trial and at sentencing about defendant engaging in conduct that was tantamount to taunting notwithstanding the victim's tearful protests. Further, with respect to permanent injury, the victim also described in detail the catastrophic traumatic effect of the crimes on her life, including her continuing near incapacitation from fear and the devastation of personal relationships. We conclude, on this record, that there is "no legitimate debate" that a jury, had it been asked to find the factual predicates for imposition of the departure sentences on either or both of those bases, would have done so. Ramirez, 343 Or. at 513, 173 P.3d 817. Accordingly, we decline to exercise our Ailes discretion to correct the sentencing error.
Affirmed.
NOTES
[1] The mandatory minimum sentence for each of the sexual offenses was 100 months; the mandatory minimum sentence for the kidnapping was 90 months. ORS 137.700(2)(a)(H), (J), (L), (N).
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591 N.W.2d 630 (1999)
In the Matter of the ESTATE OF Ruby I. KIRK, Deceased, and In the Matter of the Estate of Gerdon H. Kirk, Deceased, Health Management Systems, Inc., Appellant.
No. 97-1181.
Supreme Court of Iowa.
March 24, 1999.
*632 Patricia M. Hulting of Roehrick, Hulting, Blumberg, Kirlin & Krull, P.C., Des Moines, for appellant.
Jerrold B. Oliver of Jordan, Oliver & Walters, P.C., Winterset, for appellee Estate of Ruby I. Kirk.
Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ.
CADY, Justice.
Claimant appeals in this consolidated estate action from a ruling by the district court finding a disclaimer filed by the executor of the Ruby Kirk estate validly disclaimed the testate succession of estate property and joint tenancy property from the Gerdon Kirk estate. We affirm in part and reverse in part.
I. Background Facts & Proceedings.
Ruby Kirk died February 23, 1996. She was eighty-one-years-old. Her husband, Gerdon Kirk, died three months earlier. He was seventy-seven-years-old. The couple had lived in a home near Lorimor, Iowa, until July 1993, when health problems forced Ruby into a nursing home. Ruby moved into a nursing home in Lorimor and Gerdon remained in the marital home. Ruby qualified for Title XIX Medicaid benefits to assist in the expenses of her nursing home care.
Gerdon left a will which devised all his property to Ruby. He owned real and personal property valued at approximately $30,000, as well as property held in joint tenancy with Ruby. The joint tenancy property was valued around $26,000, with the bulk of the property consisting of three certificates of deposit.
Ruby also died testate. The beneficiaries under the will were the Kirk's three daughters. A grandson, Jerry Decker, was the named executor.
On June 27, 1996, Decker filed a disclaimer of all real and personal property passing from Gerdon's estate. The disclaimer also included the property held in joint tenancy. The only other asset in Ruby's estate was a checking account valued at $1016.
On August 8, 1996, Health Management Services (HMS) filed a timely claim in Ruby's estate for $41,612.34. HMS was an agent for the Iowa Department of Human Services. It sought to recover the Medicaid benefits paid to Ruby. HMS subsequently filed a similar claim in Gerdon's estate to recover the cost of Ruby's care.
Decker filed an application with the district court to determine the validity of the waiver. The district court found Decker validly disclaimed the transfer of property from Gerdon's estate. It also determined all property of Gerdon's estate passed to the Kirk's children free from the claim by HMS.
On appeal HMS claims the district court erred in finding the disclaimer filed in Ruby's estate to be valid. It claims the disclaimer is against public policy. It also argues Ruby cannot disclaim her proportional interest in joint tenancy property. HMS did not appeal the ruling by the district court finding Gerdon's estate was not responsible for the Medicaid assistance and services provided to Ruby.
II. Standard of Review.
Review of matters tried in probate is ordinarily de novo, except for actions to set *633 aside wills, for the involuntary appointment of guardians and conservators, and to establish contested claims. See In re Estate of Todd, 585 N.W.2d 273, 275 (Iowa 1998); Iowa Code § 633.33 (1997). Thus, our review of an executor's application to determine the validity of a disclaimer is de novo.
III. Validity of Disclaimer.
A. Public Policy.
A transferee in a testate or intestate estate is permitted to disclaim or renounce the transfer of property. Iowa Code § 633.704(1) (1995). The right to disclaim is also given to a surviving joint tenant. Id. Generally, the disclaimer must be filed within nine months after the date of the decedent's death. Id. § 633.704(2)(a); In re Estate of Lamoureux, 412 N.W.2d 628, 633 (Iowa 1987). However, if the person eligible to disclaim dies within the time allowed for disclaimer, the decedent's personal representative may disclaim within the remaining time the decedent would have had to disclaim. Iowa Code § 633.704(3)(c).
In this case, HMS does not challenge the statutory procedures for disclaimer. Instead, it asserts the disclaimer should be declared to be against public policy when done to avoid the payment of a Medicaid claim in an estate.
Medicaid is a cooperative federal-state program designed to provide federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons. See Clark by Clark v. Iowa Dep't of Human Servs., 513 N.W.2d 710, 710-11 (Iowa 1994). It is the primary source of public assistance for the elderly who reside in nursing homes. Id. States that participate in the program are required to develop plans that comply with the federal Medicaid statutes, regulations, and rules. Id. Iowa participates in the program, and has enacted a comprehensive statutory scheme in response to the federal mandates. See Iowa Code ch. 249A.
Chapter 249A includes provisions for the recovery of improper Medicaid payments from the recipient or the estate of the recipient. See generally id. § 249A.5. Under these statutes, Medicaid payments that have been incorrectly paid to a recipient are considered a debt due to the state and are recoverable upon the recipient's death as a claim against the estate. Id. § 249A.5(1). Additionally, the provision for Medicaid assistance to an individual creates, under certain circumstances, a debt due to the Department of Human Services from the individual's estate. Id. § 249A.5(2). For the purposes of collection of this debt, the estate of the Medicaid recipient includes property the recipient had an interest in at the time of the recipient's death, including interests in joint tenancy property. Id. § 249A.5(2)(c).
HMS claims these statutes establish a strong public policy for the collection of Medicaid payments from estates, and renders a disclaimer exercised by Medicaid recipients ineffective against claims for Medicaid recovery. It also argues this claim is bolstered when the disclaimer involves nonexempt assets, which in this case would have rendered Ruby ineligible for continued Medicaid assistance if the property had passed to her from Gerdon's estate.
We acknowledge the recovery of Medicaid assistance paid to a recipient includes the ability to file claims in estate proceedings. On the other hand, our disclaimer provisions are permitted to be exercised by an executor and do not include restrictions involving claims for Medicaid payments. See Iowa Code § 633.704. Ordinarily, unless two statutes directly conflict, we attempt to harmonize them in an effort to carry out the meaning and purpose of both. Coleman v. Iowa Dist. Ct., 446 N.W.2d 806, 807 (Iowa 1989); Dillon v. City of Davenport, 366 N.W.2d 918, 922 (Iowa 1985).
Clearly, the disclaimer statute does not directly conflict with the recovery provisions of the medical assistance statutes. The disclaimer provisions can, however, be utilized to frustrate the collection of Medicaid claims. Yet, we have repeatedly acknowledged beneficiaries may renounce property intended for their benefit even if the renunciation may effectively defeat claims of creditors. See Coomes v. Finegan, 233 Iowa 448, *634 451, 7 N.W.2d 729, 730 (1943); Voit v. Schultz, 232 Iowa 55, 56-57, 4 N.W.2d 410, 411 (1942); see also Stephen E. Parker, Can Debtors Disclaim Inheritances to the Detriment of Their Creditors?, 25 Loyola U. Chi. L.J. 31, 31-32 (1993); Sara L. Johnson, Annotation, Creditor's Right to Prevent Debtor's Renunciation of Benefit Under Will of Debtor's Election to Take Under Will, 39 A.L.R.4th 633, 636 (1985). We have even freely acknowledged the usual effect of the disclaimer statute is to avoid the imposition of transfer taxes and to thwart creditors. See Lamoureux, 412 N.W.2d at 630. Although our legislature gave Medicaid claims a priority status as against other creditors, it has not indicated such claims should avoid the same disclaimer consequences as other creditors.
We recognize the importance of prohibiting financial restructuring designed to qualify an individual for Medicaid. See Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460, 469 (1981) (upheld the right of a state to deem one spouse's income as available to the other for purposes of determining Medicaid eligibility); Clark by Clark, 513 N.W.2d at 711 (income for Medicaid eligibility purposes determined as of its receipt, not after reduction by payments under spousal support order, thus disallowing attempt to reduce husband's income via spousal support order to qualify him for Medicaid eligibility); Ford v. Iowa Dep't of Human Servs., 500 N.W.2d 26, 32 (Iowa 1993) (annuity calculation was reasonable interpretation of Medicaid rules); Torner by Torner v. State, 399 N.W.2d 381, 384 (Iowa 1987) (diversion rule governing the computation of Medicaid recipient's income which allowed diversion of institutionalized spouse's funds to noninstitutionalized spouse permitted only if noninstitutionalized spouse did not have income to meet SSI standard upheld); In re Marriage of Cerven, 335 N.W.2d 143, 146 (Iowa 1983) (where wife was in nursing home, transfer of assets to son in order to shield husband from support obligations was a sham); In re Benson, 495 N.W.2d 777, 782 (Iowa App.1992) (in the context of determining child support in dissolution proceedings, support is not structured so as to make families eligible for supplemental security income). Yet, the disclaimer of property does not amount to an assignment or conveyance of property. Coomes, 233 Iowa at 453, 7 N.W.2d at 730-31. Instead, it is merely viewed as a refusal to accept property from another, and is treated as if no transfer occurred. Id.; Iowa Code § 633.704(3)(a). Thus, a disclaimer cannot be viewed as a scheme to circumvent the Medicaid eligibility provisions.
We reject the argument by HMS that the disclaimer is contrary to public policy because it thwarts its efforts to recover its claim from Ruby's estate.[1]
B. Jointly Held Property.
HMS claims the trial court erred by finding the executor could disclaim Ruby's proportional interest in the joint tenancy property. It maintains her executor could only disclaim what Ruby inherited, not the portion of the joint tenancy property she already owned.
Joint tenancy property is property held by two or more parties jointly, with equal rights to share in the enjoyment of the whole property during their lives, and a right of survivorship which allows the surviving party to enjoy the entire estate. Lamoureux, 412 N.W.2d at 631; see also 20 Am. Jur.2d Cotenancy & Joint Ownership § 3 (1995). We have previously identified two types of interests in joint tenancy. Lamoureux, 412 N.W.2d at 631 (citing D.L. Uchtmann & P.K. Zigterman, Disclaimers of Joint Tenancy Interests Revisited, 18 Creighton L.Rev. 333, 342 (1985)). The proportional interest is the joint tenant's interest which comes from the creation of the joint tenancy which necessarily occurs before the death of another joint tenant. Id. The accretive interest, on the other hand, is the interest the survivor receives at the death of a joint tenant. Id. Thus, where two joint *635 tenants have an interest in property and one joint tenant dies, the surviving joint tenant has a one-half proportional interest and a one-half accretive interest. See Horner v. Iowa State Tax Comm'n, 234 Iowa 624, 626-27, 12 N.W.2d 166, 167 (1943) (recognizing succession of rights to a joint tenant is separate from original creation of joint tenancy).
Iowa Code section 633.704(1) clearly permits disclaimer of an interest held in joint tenancy. It fails to clarify, however, whether the disclaimer applies to the entire joint tenancy interest (proportional and accretive interest) or simply the accretive interest.
Based upon the recognized distinctions in the property interests held by joint tenants, we agree the disclaimer of joint tenancy property is limited to the accretive interest rather than the proportional and accretive interest. See 1 Sheldon F. Kurtz, Kurtz on Estates § 15.33 (3d ed.1995) [hereinafter Kurtz]. In this case, Ruby acquired her proportional interest in the property at the time the tenancy was created. This occurred prior to Gerdon's death. Thus, the only interest available for Ruby to disclaim was the accretive interest which passed to her upon Gerdon's death. Disclaimer only applies to property which passes upon death to the disclaimant, not to property owned by the disclaimant prior to the death.
This approach is not only consistent with our recognized distinction in the interests of joint tenancy property, but is also compatible with the legislative treatment of joint tenancy property for inheritance tax purposes. See Lamoureux, 412 N.W.2d at 632 (disclaimer statute should be construed in light of the inheritance tax statute). Under our inheritance tax statute, only a surviving joint tenant's accretive interest is taxable. See Iowa Code § 450.3(5); Kurtz § 23.10. This is because the proportional interest belonged to the surviving joint tenant prior to the death of the other joint tenant. Accordingly, we reverse the district court on this issue and find the disclaimer of joint tenancy property in this case is limited to Ruby's accretive interest.
AFFIRMED IN PART, REVERSED IN PART.
NOTES
[1] HMS only challenges the public policy behind the disclaimer statute as it relates to Medicaid claims. It does not raise a claim that Ruby fraudulently obtained Medicaid benefits. See Sara L. Johnson, Annotation, Creditor's Rights to Prevent Debtor's Renunciation of Benefit Under Will or Debtor's Election of Take Under Will, 39 A.L.R.4th 633, 636 (1985).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 14, 2015
TONY REED HILDEBRAND v. STATE OF TENNESSEE
Appeal from the Criminal Court for Carter County
No. 22152 Lisa Rice, Judge
No. E2014-02259-CCA-R3-PC – Filed December 4, 2015
_____________________________
Petitioner, Tony Reed Hildebrand, filed a pro se motion for post-conviction relief in
which he alleged ineffective assistance of counsel, alleged that he was “falsely accused,”
and insisted that a “court order [was] not honored.” The post-conviction court denied
relief and dismissed the petition without a hearing. After our review, we conclude that
the petition alleged a colorable claim of ineffective assistance of counsel and Petitioner
was entitled to appointed counsel, if found to be indigent, and to an opportunity to amend
his petition. Accordingly, the judgment of the post-conviction court is reversed, and the
case is remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.
Tony Reed Hildebrand, Elizabethton, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Tony Clark, District Attorney General; and Dennis D. Brooks, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Factual Background
Petitioner was named in a presentment in Carter County in case number 21309 on
one count of possession of a Schedule III controlled substance for resale in a school zone,
resisting arrest, evading arrest, and a violation of the sex offender registry act. In case
number 21461 Petitioner was indicted on one count of violation of the sex offender
registry act in Carter County. In case number 22152, a presentment was issued charging
Petitioner and his wife Trina with one count of sale of a Schedule III controlled substance
within a school zone in Carter County. In case number 22182, Petitioner was indicted on
one count of a violation of the sex offender registry in Carter County. The technical
record reflects that Petitioner entered guilty pleas on October 9, 2013. The judgments
reflect a total effective sentence of six years.
In April of 2014, Petitioner filed a Motion for Reconsideration Hearing, seeking
his release from incarceration in case 22152. The trial court denied the motion on May 2,
2014. On August 19, 2014, Petitioner filed a “Motion for Post-conviction Relief” with
regard to his “case of sale of sch. III drug” in which he argued that he received ineffective
assistance of counsel because counsel “completely ignored the fact that he did not wish to
plead guilty.” Petitioner also alleged that he was “falsely accused” and that a court order
was not “honored.” Petitioner filed a second “Motion for Post-conviction Relief” in
September of 2014 in case number 22152, challenging his conviction for “sale of sch. III
drug.” The second motion duplicated the issues raised in the first motion.
The post-conviction court entered an order on October 10, 2014, denying relief
and dismissing the petition without appointing counsel or allowing Petitioner the
opportunity to amend his pro se petition. In the order, the post-conviction court
references a “Motion to Redress” filed by Petitioner in July of 2014. This motion does
not appear in the record but, according to the post-conviction court, it set forth “duplicate
grounds” to the petition for post-conviction relief. The post-conviction court determined
that there was no factual or legal basis which would entitle Petitioner to relief under his
argument that he was “falsely accused” based on the “brief recitation of the events which
occurred during his wife’s plea in this same case.” Additionally, the post-conviction
court determined that the transcript of the pleas reflects that Petitioner entered
contemporaneous pleas on case numbers 22152, 21309, 21461, and 22182 1 and that
Petitioner only challenges the validity of the plea in case number 22152. The post-
conviction court determined that Petitioner does not set forth a factual basis or
explanation for his claim of ineffective assistance of counsel that would entitle him to
relief. Lastly, the post-conviction court determined that Petitioner was indicted “within
1
The post-conviction court refers to case numbers 21309, 21461, and 22182 as “Washington
County Cases.” The indictments and presentments from those cases appear in our technical record on
appeal and all of the charges appear to have originated in Carter County.
-2-
the applicable statute of limitations” and, moreover, that was not an appropriate ground
for post-conviction relief. As a result, the post-conviction court denied relief and
dismissed the petition.
Analysis
On appeal, Petitioner argues that he pled “guilty to this because [his] law[y]er said
[he] should because of [his] record.” Petitioner also references his “Motion to Redress”
in which he “asked for the court report on . . . the possession [S]chedule III for resale that
the Honorable [judge] . . . dismissed.” He urges this Court to “reverse the Carter County
Criminal Court ordering ruling [sic] that he sold the Schedule III controlled substance
and or give him a new court date and that he was not liable for the sale that his wife did
with the confidential informant.” Petitioner makes no citations to legal authority or to the
record for his argument and points to no portion of the Post-Conviction Procedure Act
which would entitle him to relief. Moreover, Petitioner seems to abandon his remaining
grounds for relief on appeal. The State, on the other hand, insists that the post-conviction
court properly dismissed the petition because it failed to meet the requirements of the
Post-Conviction Procedure Act.
An appellate court’s review of a summary denial of a petition for post-conviction
relief is de novo. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v.
State, 92 S.W.3d 403, 406 (Tenn. 2002)). Post-conviction relief is available for any
conviction or sentence that is “void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. Petitions for post-conviction relief must include a “specific
statement of all grounds upon which relief is sought, including full disclosure of the
factual basis of those grounds.” Id. § 40-30-106(d). A bare allegation that a
constitutional right has been violated and mere conclusions of law shall not be sufficient
to warrant any further proceedings. Id. Upon receipt of a petition for post-conviction
relief, the post-conviction court conducts a preliminary review to “determine whether the
petition states a colorable claim.” Tenn. Sup. Ct. R. 28, § 6(B)(2). A colorable claim is
one “that, if taken as true, in the light most favorable to the petitioner, would entitle
petitioner to relief. . . .” Id. § 2(H). If a petition fails to state a colorable claim, the post-
conviction court must dismiss the petition. Id. §§ 5(F)(5), 6(B)(4)(a); see also T.C.A. §
40-30-106(d) (where the factual allegations within a petition, “taken as true, fail to show
that the petitioner is entitled to relief . . . , the petition shall be dismissed”).
However, if a petition is filed pro se, then the post-conviction court may grant the
petitioner an opportunity to amend the petition to properly allege a colorable claim.
T.C.A. § 40-30-106(d) (emphasis added). If the pro se petition remains incomplete after
a chance to amend, the post-conviction court may then appoint counsel for an indigent
-3-
petitioner. T.C.A. § 40-30-106(e). Although the decision to afford an opportunity to
amend or to appoint counsel to help complete the petition is within the discretion of the
post-conviction court, a post-conviction court does not have the authority to dismiss a pro
se petition “for failure to follow the prescribed form until the court has given [the]
petitioner a reasonable opportunity to amend the petition with the assistance of counsel.”
Tenn. Sup. Ct. R. 28, § 6(B)(4)(b). Furthermore, if the post-conviction court determines
that the petition of an indigent pro se petitioner states a colorable claim for relief, the
petitioner is then entitled to the assistance of appointed counsel. Id. § 6(B)(3)(a); see also
T.C.A. § 40-30-107.
When making a colorable claim determination, the post-conviction court should
look only to the factual allegations in the petition. “An independent review of the
transcript of the [relevant proceeding] and conclusive determination that the petition was
without merit are not permissible. The preliminary stage is not the appropriate forum for
adjudication of the facts of the case.” Charlton v. State, 987 S.W.2d 862, 865 (Tenn.
Crim. App. 1998) (approving of Loring C. Warner v. State, No. 03C01-9610-CR00407,
1998 WL 22072 (Tenn. Crim. App. Jan. 23, 1998), perm. app. denied (Tenn. Nov. 2,
1998), and Garry E. Collins v. State, No. 01C01-9603-CR-00120, 1997 WL 110016
(Tenn. Crim. App. Mar. 13, 1997)). This remains true even though a petitioner’s factual
allegations “may be exceedingly difficult to prove” or “it is unlikely that a petitioner
could adequately establish the violation of his constitutional rights.” Waite v. State, 948
S.W.2d 283, 285 (Tenn. Crim. App. 1997). In Hayes v. State, 969 S.W.2d 943, 944
(Tenn. Crim. App. 1997), this Court observed:
In reviewing the petitioner’s allegations, the court below examined other
matters contained in the record of the State’s case against the petitioner and
decided that the petitioner’s allegations were without merit. We commend
the court below for attempting to save the State the time, money, and
resources required to provide the petitioner with a hearing. However, in
doing so, the court below overlooked its statutory duty to take as true the
allegations contained in the petition, without regard to the other matters
contained in the record.
See T.C.A. §40-30-106(b)-(d); See also John Edward Lynch v. State, No. M2014-01831-
CCA-R3-PC, 2015 WL 2399725, at *3 (Tenn. Crim. App. May 19, 2015), no perm. app.
filed; Gregory D. Valentine v. State, No. M2014-00977-CCA-R3-PC, 2015 WL 274181,
at *7 (Tenn. Crim. App. Jan. 21, 2015) (noting that “the ultimate success or failure of a
petitioner’s claims is not a proper basis for dismissing a post-conviction petition without
conducting an evidentiary hearing” (quotation and citation omitted)), no perm. app. filed;
Carl Johnson v. State, No. W2003-02760-CCA-R3-PC, 2005 WL 181699, at *3 (Tenn.
Crim. App. Jan 25, 2005), perm. app. denied (Tenn. June 27, 2005); Michael Keith
-4-
Kennedy v. State, No. W2003-02824-CCA-R3-PC, 2005 WL 645164, at *5 (Tenn. Crim.
App. Mar. 16, 2005), no perm. app. filed; William Alexander Cocke Stuart v. State, No.
M2003-01387-CCA-R3-PC, 2004 WL 948390, at *3 (Tenn. Crim. App. May 4, 2004),
no perm. app. filed; Roosevelt Malone v. State, No. E2002-00782-CCA-R3-PC, 2003 WL
21145488, at *2 (Tenn. Crim. App. May 16, 2003) (reversing where “[t]he reason for
dismissal relied upon by the post-conviction court is not one of the statutory reasons for
dismissing a post-conviction petition without an evidentiary hearing), no perm. app. filed;
Amin Shabazz v. State, No. M2002-01302-CCA-R3-PC, 2003 WL 354511, at *1-2 (Tenn.
Crim. App. Feb. 14, 2003), no perm. app. filed.
In the case herein, Petitioner filed a timely petition for post-conviction relief that,
while ineptly drafted, made an allegation of ineffective assistance of counsel to the effect
that his guilty plea was made unknowingly and involuntarily. Specifically, Petitioner
alleged that trial counsel ignored the fact that he wanted to proceed to trial. When the
post-conviction court received the petition, rather than taking the allegations at face
value, the post-conviction court looked outside the pleadings to the transcript of the guilty
plea hearing and made a determination that the allegations were unsupported by the
record. Like the court in Hayes, we appreciate the post-conviction court’s attempt at
promoting judicial economy. However, the Post-Conviction Procedure Act must be
followed as written. The post-conviction court should have appointed counsel and
permitted Petitioner to file an amended petition. After that point, a hearing should have
been held on the petition at which time Petitioner could present proof. For those reasons,
we must reverse the judgment of the post-conviction court and remand for appointment
of counsel if Petitioner is determined to be indigent. Thereafter, Petitioner shall be
permitted to file an amended petition and this matter should proceed to an evidentiary
hearing as provided by statute.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is reversed
and the case remanded for further proceedings consistent with this opinion.
_________________________________
TIMOTHY L. EASTER, JUDGE
-5-
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Matter of Jackson Hgts. 35, LLC v New York State Div. of Hous. & Community Renewal (2015 NY Slip Op 02970)
Matter of Jackson Hgts. 35, LLC v New York State Div. of Hous. & Community Renewal
2015 NY Slip Op 02970
Decided on April 8, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 8, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
BETSY BARROS, JJ.
2013-02125
(Index No. 107432/12)
[*1]In the Matter of Jackson Heights 35, LLC, appellant,
vNew York State Division of Housing and Community Renewal, respondent; Ivan Gallardo, et al., intervenors-respondents.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, N.Y. (Paul N. Gruber of counsel), for appellant.
Gary R. Connor, New York, N.Y. (Robert Ambaras of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Deputy Commissioner of the New York State Division of Housing and Community Renewal dated March 23, 2012, disallowing certain costs claimed by the petitioner in connection with its application for a major capital improvement rent increase and granting the application only to the extent of granting a monthly rent increase in the amount of $9.74 per room, the petitioner appeals from a judgment of the Supreme Court, Queens County (Lopresto, J.), entered December 28, 2012, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
In 2008, the petitioner, which owns a building containing 32 rent-regulated units in Jackson Heights, Queens, applied to the New York State Division of Housing and Community Renewal (hereinafter the DHCR) for a major capital improvement (hereinafter MCI) rent increase following work to the building, which included "pointing, parapet, roof, entrance door and roof door." The building has 8 apartment units on each of 4 floors. Two inspections were performed.
In an "Order Granting MCI Rent Increase" dated March 5, 2010, the Rent Administrator determined that the work constituted an MCI. However, the Rent Administrator disallowed costs associated with asbestos work and permit fees.
The tenants filed a petition for administrative review (hereinafter PAR), asserting, among other things, that the roof installation had not been completed in a workmanlike manner, as evidenced by leak damage on the ceilings of the top floor apartments. The DHCR denied the portion of the PAR which sought to exclude the roof installation costs and granted the portion which sought to exclude the cost of the roof railing.
Thereafter, the tenants and the petitioner jointly commenced a proceeding pursuant to CPLR article 78 to review the DHCR's determination. The DHCR agreed to reopen the administrative proceeding to consider whether the roof railing should be included, or whether all of the roof work should be excluded from the MCI amount, and a third inspection was performed.
In an "Order and Opinion Granting-In-Part Petition for Administrative Review Upon Remit" dated March 23, 2012, the DHCR found that the roof was not installed in a workmanlike manner, which manifested, "as would be expected," in the top floor apartments.
The petitioner then commenced this proceeding pursuant to CPLR article 78 to review the DHCR's determination. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals, and we affirm.
The determination of the DHCR to provide for a smaller MCI rent than that requested by the petitioner had a rational basis in the record and was not arbitrary and capricious (see Matter of Fieldbridge Assoc., LLC v New York State Div. of Hous. & Community Renewal, 87 AD3d 598, 599; Matter of Ellis v Division of Hous. & Community Renewal of State of N.Y., 45 AD3d 594, 595; Matter of Pickman Realty Corp. v New York State Div. of Hous. & Community Renewal, 299 AD2d 552, 553).
The petitioner was not deprived of due process of law by virtue of not having received the report from the third inspection (see Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 79 AD3d 630, 633, affd 18 NY3d 446; Matter of Empress Manor Apts. v New York State Div. of Hous. & Community Renewal, 147 AD2d 642, 643).
The petitioner's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.
RIVERA, J.P., DICKERSON, CHAMBERS and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
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502 S.E.2d 559 (1998)
232 Ga. App. 620
McCOY
v.
WEST BUILDING MATERIALS OF GEORGIA, INC.
No. A98A0525.
Court of Appeals of Georgia.
May 21, 1998.
Certiorari Denied October 2, 1998.
*560 R. Keith Prater, Newnan, for appellant.
Sullivan, Hall, Booth & Smith, Alexander H. Booth, Atlanta, Karl M. Braun, for appellee.
BLACKBURN, Judge.
On December 10, 1994, Frances McCoy tripped and fell over a wooden board supporting a gym and swing set on display outside of one of the stores owned by West Building Materials of Georgia, Inc. McCoy later sued West on the grounds of premises liability, and the trial court granted summary judgment to West. McCoy now appeals.
"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Matjoulis v. Integon Gen. Ins. Co., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
Viewing the evidence in the light most favorable to McCoy, West had assembled a Mountaineer II Gym Kit outside of its store. A large structure, the gym featured a slide on one end, a square fort-like structure in the middle, and a swing on the other end. At its base, the gym was supported by long wooden boards. As she was attempting to enter the store, McCoy tripped over one such board and sustained injuries to her right arm and face. Prior to her fall, McCoy saw a young boy sliding down the gym's slide. McCoy contends that the actions of the boy startled her, diverting her attention away from the board in her path.
When asked to describe the events of her fall, McCoy, however, indicated that she saw the board prior to her fall. She gave the following explanation of events: "[Answer:] And, uh, at this, uh, tree house thing and the slide I picked up my foot to step over that two-by-four that was nailed onto the thing and it was almost up to the glass wall and I hit it with my toe. It was a two-by-six.... [Question:] And [the board] stuck out around four feet? [Answer:] Yes, sir. Yes, sir. [Question:] So then you attempted to step over it? [Answer:] Yes, sir, and I hit it with my toe and fell over on my right side. [Question:] Okay. Before you started heading that way, how far were you would you say when you first noticed that board? [Answer:] Uh, I guess, when I just picked up, starting picking up my foot to put over it. [Question:] Okay. Are you saying you never saw it or noticed it until you started to pick your foot up? [Answer:] Yes, sir. Uh huh. [Question:] Okay. You were picking your foot [up] because you saw it was there? [Answer:] Yes, sir. And I don't guess I got my foot up high enough and I hit it with my toe on my shoe."
This is an excerpt from a transcribed interview between McCoy and an insurance agent on January 12, 1995. McCoy's attorney was present at this meeting. In an April 1, 1997 response to defendant's requests for admissions, McCoy admitted that the transcript was accurate and that her answers to the questions posed were truthful. However, in a deposition taken on January 10, 1997, over two years after the fall, McCoy offered a different version of events, stating that she did not remember attempting to step over the board and that she never saw the board at any time prior to her fall.
"A matter admitted in response to requests for admission under OCGA § 9-11-36, is conclusively established unless the *561 court, on motion, permits withdrawal or amendment of the admission. In form and substance such an admission is generally regarded as a judicial admission rather than an evidentiary admission. Such a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion." (Punctuation omitted.) Britt v. West Coast Cycle, 198 Ga.App. 525, 526(1), 402 S.E.2d 121 (1991). As McCoy did not seek to withdraw her admissions, her deposition testimony contradicting such admissions cannot be considered. Her responses to the requests for admission conclusively establish that she saw the board and attempted unsuccessfully to step over it.
"`(I)n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.' Robinson v. Kroger Co., 268 Ga. 735, 748-749, 493 S.E.2d 403 (1997). See Alterman Foods v. Ligon, 246 Ga. 620, 624, 272 S.E.2d 327 (1980)." Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351, 496 S.E.2d 471 (1998). The true ground of liability is the owner or occupier's superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga.App. 133, 134(1), 447 S.E.2d 35 (1994).
The first prong of the Robinson test was satisfied because it is undisputed that West had constructed the gym set over which McCoy fell. The evidence also shows that McCoy had actual knowledge of the hazard which caused her fall. She stated that she was in the process of lifting her foot over the board when she fell and that she simply did not get her foot high enough. Therefore, as McCoy saw the board which she tripped over prior to her fall it cannot be said that West had superior knowledge of the hazard, which would be the true ground of its liability.
McCoy's argument that she was distracted by the child playing on the gym set does not alter this outcome. In Robinson, supra at 746, 493 S.E.2d 403, our Supreme Court stated that "when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee's attention, e.g., the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee, the invitee has presented some evidence that the invitee exercised reasonable care for the invitee's own safety." (Punctuation omitted; emphasis supplied.) By her own admission, McCoy did see the board over which she tripped prior to her fall. Therefore, McCoy's claim of distraction does not fit under the standard set out in Robinson. The simple fact is that the plaintiff in this case had actual knowledge of the hazard which caused her fall prior to encountering it. Accordingly, summary judgment in favor of West, which did not have superior knowledge of the hazard in question, was proper.
Judgment affirmed.
McMURRAY, P.J., and ELDRIDGE, J., concur.
|
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 340 MAL 2015
:
Respondent :
: Petition for Allowance of Appeal from the
: Order of the Superior Court
v. :
:
:
HORATIO MANDUS NIMLEY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 29th day of July, 2015, the Petition for Allowance of Appeal is
DENIED.
|
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J-S09028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUSTIN LEE MORRIS :
:
Appellant : No. 2054 EDA 2019
Appeal from the Judgment of Sentence Entered May 29, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-SA-0000342-2017
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 24, 2020
Dustin Lee Morris appeals from the judgment of sentence, entered in
the Court of Common Pleas of Northampton County, following a bench trial
after which he was found guilty of driving while operating privilege is
suspended or revoked-DUI related.1 After careful review, we quash.
On June 11, 2017, Officer Jared Gunshore of the Lower Saucon Township
Police Department was acting as security for a hill-climb event and was
running license plates to check for warrants and other violations. N.T. Trial,
5/29/19, at 3-4. After Officer Gunshore ran the license plate of Morris’s
vehicle, he discovered that Morris’s license was suspended because of a DUI
conviction. After Morris identified himself and acknowledged that his license
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 1543(b)(1).
J-S09028-20
was suspended, Officer Gunshore cited him for driving while operating
privilege is suspended or revoked. Id. at 13.
On October 30, 2017, a Magisterial District Judge found Morris guilty
and sentenced him to pay a $500.00 fine plus costs. Morris filed a timely
summary appeal on November 21, 2017. The court scheduled a de novo trial
for March 21, 2018, but the matter was continued to May 30, 2018. On May
29, 2018, one day prior to the scheduled trial, Morris withdrew his summary
appeal pursuant to Pennsylvania Rule of Criminal Procedure 462(E),2 and he
requested imposition of the district judge’s sentence.
The Honorable Kimberly F.P. McFadden considered Morris’ request and
ordered the parties to brief the issue of whether the lower court’s sentence
could be imposed if it did not include the mandatory prison term of not less
than 60 days nor more than 90 days pursuant to 75 Pa.C.S.A. § 1543(b)(1).
On August 13, 2018, Judge McFadden ordered Morris’ appeal withdrawn and
remanded the case for resentencing for correction of the illegal sentence, as
it did not include the mandatory minimum. Order, 8/13/18.3
____________________________________________
2 “If the defendant withdraws the appeal, the trial judge shall enter judgment
in the court of common pleas on the judgment of the issuing authority.”
Pa.R.Crim.P. 462(E).
3 That order provides:
AND NOW, this 13rd day of August, 2018, upon consideration of
briefs from Defendant and the Commonwealth, it is hereby
ORDERED and DECREED that Defendant’s Summary Appeal is
WITHDRAWN and this matter is REMANDED to Magisterial District
-2-
J-S09028-20
On August 20, 2018, a magisterial district judge resentenced Morris in
absentia to sixty days of incarceration and a $500.00 fine plus costs. Because
he was not notified of his sentence until November 19, 2018,4 Morris filed a
summary appeal nunc pro tunc. The court held a second de novo trial on
May 29, 2019, after which the court found Morris guilty of violating Section
1543(b)(1) of the Vehicle Code and sentenced him to sixty days of
incarceration, with a deferred report date of July 1, 2019, and a $500.00 fine
plus costs.5
Morris did not file a timely appeal to this Court. Instead, on July 2,
2019, Morris filed a motion in the trial court for leave to appeal nunc pro tunc,
which the trial court granted on July 11, 2019. Morris then filed a notice of
____________________________________________
Court #03·2·04 for correction of the illegal sentence originally
imposed, which failed to include the mandatory sentence required
by 75 Pa.C.S.A 1543(b). See Commonwealth v. Harrison, 661
A.2d 6 (Pa. Super. 1995).
Trial Court Order, 8/13/18.
4The trial court notes that Morris presented no support for his claim that this
second sentence was a nullity because he had no notice. See Trial Court
Opinion, 9/11/19, at 3, n.4.
5 Section 1543(b) of the Vehicle Code provides that the defendant “shall be
sentenced to pay a fine of $500 and to undergo imprisonment of not less than
60 days nor more than 90 days.” 75 Pa.C.S.A. § 1543(b)(1) (emphasis
added). As section 1543(b) requires courts to sentence a defendant to at
least 60 days in jail, the trial court had no discretion to impose a lesser
sentence pursuant to Rule 462(e). See 42 Pa.C.S.A. § 9721(a.1)(1); see
also Commonwealth v. Kenney, 210 A.3d 1077, 1082-83 (Pa. Super. 2019)
(finding that sentence that fails to include mandatory term of imprisonment is
illegal).
-3-
J-S09028-20
appeal and a court-ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Morris presents the following issues
for our review:
(1) Did the trial court err in proceeding to remand the matter to the
Magisterial District Judge for imposition of a sentence of
imprisonment after [Morris] filed a [p]raecipe to withdraw
[s]ummary [a]ppeal pursuant to Rule 462(E) of the Pennsylvania
Rules of Criminal Procedure?
(2) Did the trial court err in imposing sentence without jurisdiction
after failing to enter judgment in the Court of Common Pleas on
the judgment of the issuing authority where [Morris] had
withdrawn his [s]ummary [a]ppeal pursuant to Rule 462(E) of the
Pennsylvania Rules of Criminal Procedure?
Appellant’s Brief, at 2.
Before we address the merits of the case, we consider, sua sponte
whether this Court has jurisdiction. Barak v. Karolizki, 196 A.3d 208, 215
(Pa. Super. 2018). Since jurisdiction is a question of law, our standard of
review is de novo and our scope of review plenary. Id. (citing
Commonwealth v. Seiders, 11 A.3d 495, 496-97 (Pa. Super. 2010)).
Pennsylvania Rule of Criminal Procedure Rule 720(D) states:
There shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas. The
imposition of sentence immediately following a determination of
guilt at the conclusion of the trial de novo shall constitute a final
order for purposes of appeal.
Pa.R.Crim.P. 720(D).
-4-
J-S09028-20
After judgment of sentence has been entered, the defendant has thirty
days to file an appeal. See Pa.R.A.P. 903(a); see also Pa.R.Crim.P.
720(A)(3) (“If the defendant does not file a timely post-sentence motion, the
defendant’s notice of appeal shall be filed within 30 days of imposition of
sentence[.]”). If no appeal is taken within thirty days, the trial court loses
jurisdiction. See Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa.
2003) (“Far from continuing into perpetuity, the trial court's jurisdiction over
a matter generally ends once an appeal is taken from a final order or, if no
appeal is taken, thirty days elapse after the final order.”). See also 42
Pa.C.S.A. § 5505 (“Modification of orders: Except as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or
allowed.”); accord Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007)
(stating, “Section 5505 . . . recognizes the removal of jurisdiction upon appeal
. . . and the removal of jurisdiction upon the end of the term of court or the
statutory thirty-day expansion of that time [. ]”).
In Commonwealth v. Capaldi, 112 A.3d 1242 (Pa. Super. 2015), we
explained that if no post-sentence motion or motion by the Commonwealth to
modify sentence is filed, a defendant must file an appeal within 30 days of the
imposition of sentence in open court. Id. at 1244. See Pa.R.Crim.P.
720(A)(3); see also Pa.R.A.P. 903(c)(3) (“In a criminal case in which no post-
-5-
J-S09028-20
sentence motion has been filed, the notice of appeal shall be filed within 30
days of the imposition of the judgment of sentence in open court.”).
Here, the court sentenced Morris on May 29, 2019. No post-sentence
was permitted to be filed. See Pa.R.Crim.P. 720(D) (“[t]here shall be no post-
sentence motion in summary case appeals following a trial de novo in the
court of common pleas. The imposition of sentence immediately following a
determination of guilt at the conclusion of the trial de novo shall constitute a
final order for purposes of appeal”). Therefore, Morris had thirty days, until
June 28, 2019, to appeal his judgment of sentence. Instead of doing so,
Morris filed a motion for leave to appeal nunc pro tunc on July 2, 2019, which
the trial court granted on July 11, 2019, after it lost jurisdiction. Morris failed
to file an appeal within 30 days of entry of his judgment of sentence. We,
therefore, quash this appeal for want of jurisdiction. Pa.R.A.P. 903(c)(3).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/20
-6-
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T.C. Memo. 2000-2
UNITED STATES TAX COURT
ERNEST A. AND BERNIECE C. HUNTER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17909-98. Filed January 5, 2000.
Ernest A. and Berniece C. Hunter, pro se.
Shawna Early, for respondent.
MEMORANDUM OPINION
POWELL, Special Trial Judge: Respondent determined a
deficiency in petitioners' 1997 Federal income tax in the amount
of $360. Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the year in issue.
The issue is whether petitioners are entitled to deduct
$3,700 for expenses incurred by petitioner Ernest A. Hunter
(petitioner) in going to the New York City Municipal Reference
and Research Center and The New York Public Library.
- 2 -
Petitioners resided in New York, New York, at the time the
petition was filed.
The facts may be summarized as follows. During 1997, the
year before the Court, petitioner was not an employee and was not
engaged in any trade or business. Petitioner testified that his
wife “contributes” $100 every 2 weeks for his “library
attendance”. Petitioners deducted $3,700 on their 1997 tax
return,1 which represents the cost of petitioner’s transportation
to and from the libraries and his meals. As far as we can
determine, since at least 1980 to 1997, petitioner has had an
ongoing employment or wrongful discharge dispute with the State
of New York. The following excerpt from the transcript explains
petitioner’s position:
THE COURT: But you are not engaged in a trade or
business, are you?
THE WITNESS: * * * I am not. But what happens is in
the civil service law, in order to get paid, you have to
maintain a posture of ready, willing and able to be restored
from the preferred list, or whatever. And what happens is
that has been my method or means of keeping myself ready,
willing and able to be employed.
* * * * * * *
I am not receiving a penny [of income]. See, what happens
is, when the State of New York refused to restore me from
the preferred list, they refused to provide me with any
interpretation of whatever it was that they -– reasons they
1
The record does not explain the difference between $100
every 2 weeks ($2,400) and the $3,700 deduction petitioners
claimed on their return.
- 3 -
used for doing so, so I might confront it. * * * Therefore,
my pay is still going on as a technical matter.
THE COURT: I am not sure that the State of New York
would agree with you.
THE WITNESS: They certainly haven’t.
As the Supreme Court has noted, “the ‘familiar rule’ [is]
that ‘an income tax deduction is a matter of legislative grace
and that the burden of clearly showing the right to the claimed
deduction is on the taxpayer.’” INDOPCO, Inc. v. Commissioner,
503 U.S. 79, 84 (1992). Section 162(a) allows deductions for
“ordinary and necessary expenses * * * in carrying on any trade
or business.” An employee is in a trade or business of being an
employee. See Fogg v. Commissioner, 89 T.C. 310 (1987). Section
212(a) further allows deductions for “ordinary and necessary
expenses * * * for the production or collection of income [or]
for the management, conservation, or maintenance of property held
for the production of income”.
The expenses claimed do not fall within either section
162(a) or section 212(a). Even if we consider these expenses to
be bona fide educational expenses, petitioner admittedly was not
engaged in a trade or business or other income-producing activity
during the time that the expenses were incurred or paid. See
Reisinger v. Commissioner, 71 T.C. 568, 572 (1979) (“Mere
membership in good standing in a profession does not constitute
- 4 -
carrying on a trade or business.”). Respondent’s determination
is sustained.
Decision will be entered
for respondent.
|
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Filed 3/3/14 P. v. Pacheo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056825
v. (Super.Ct.No. INF063631)
ANTHONY PACHECO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Honorable Charles
Everett Stafford, Jr., Judge. Affirmed.
David L. Kelly, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1
Following a jury trial, defendant Anthony Pacheco was convicted of second
degree murder (Pen. § 187, subd. (a)) and assault on a child under eight years of age
causing death (§ 273ab). The trial court sentenced him to 25 years to life in state prison.
He appeals, contending the prosecutor committed misconduct and he received ineffective
assistance of counsel.
I. FACTS
Because defendant does not raise any challenge to the sufficiency of the evidence,
only those facts necessary to address his issues on appeal will be provided.
In October 2008, defendant was living in Indio with his mother (Felinda Pacheco),
his brother (Kevin Barkley), his daughter, and his girlfriend (I.W.) and her two children
(A. and Mya). In the morning of October 21, 2008, firefighters responded to a 911 call
and found 17-month-old Mya in life-threatening distress. Defendant was present and
seemed unnaturally calm. He told the firefighters that Mya just “woke[] up that way.”
Mya was transported to the hospital and later airlifted to Loma Linda Children’s Hospital.
Dr. Amy Young, forensic pediatrician at Loma Linda Children’s Hospital,
observed bruising and swelling on Mya’s forehead, bruising on the left side of her head,
shins, chest, abdomen, ear, tongue and frenulum. She had sustained a tear to her upper
frenulum, lacerations to her lower inner lip, and “global injury” to her brain caused by
blunt force trauma consistent with a “major motor vehicle accident event” or shaking.
Mya also had numerous retinal hemorrhages consistent with “repeated” blunt force
trauma, which Dr. Young opined were injuries one would expect to see from “repeated --
multiple incidents of blunt force trauma . . . the same as repetitive acceleration
2
deceleration, meaning head movement, sudden moving and sudden stopping,” such as a
baby forcibly striking a wall repeatedly. The doctor also stated that Mya’s symptoms
would have immediately followed her injury. Despite efforts to save her, four days after
being brought to the hospital, Mya died from brain injuries.
Detective Erik Longoria of the Indio Police Department interviewed defendant.
During the interview, defendant claimed that he found Mya on the floor with her eyes
“rolling in the back of her head” and her tongue protruding from her mouth. He
explained that previously, Mya had gotten into a fight with a two-year-old girl who hit
Mya over the head with a hairbrush, causing Mya to feel sick and throw up. Defendant
added that Mya liked to “hit her head with her mop” or the wall when she became mad.
He said “she hits her head a lot.” When the detective indicated his suspicions that there
was more to the story, defendant remembered he accidentally bumped Mya’s head on the
corner of the bed when he picked her up. He later added that Mya had “slipped on a toy”
and “hit the wall and slid down.” Defendant also confessed to playing a little rough with
her and that he “might have . . . hit her head.” In a later interview with Detective
Longoria on October 23, 2008, defendant remembered that when he had been carrying
Mya in the hallway, he had accidentally “kicked” a toy, then “tripped,” and then
“slipped” and “dropped” Mya.
At trial, defendant testified that what he had told Detective Longoria was false.
He claimed that I.W. left the house in a hurry on the morning of October 21, 2008. When
she came to the hospital, she “just told [defendant] she was sorry.” When he asked her
what she was sorry for, she “kept saying, ‘This morning, this morning.’” I.W. said she
3
did not want to get in trouble and she could not lose her girls. Defendant did not know if
I.W. had hurt Mya,1 but “from the answers she was giving [him], she was starting to
scare [him].” Defendant said he loved I.W. and tried to protect her by “[making] stuff
up.” He claimed that when he spoke with the detectives, he invented a story for them.
According to the story, he had accidentally hit Mya’s head on the bed frame even though
he did not know that she had a head injury; he was just guessing. After two years in jail,
defendant asked I.W. to come to court and tell the truth. She said that she would, but
then she did not. Defendant had not seen her since that conversation in jail and believed
she was living on a reservation in Arizona.
On cross-examination, defendant agreed that he had told many lies. Although he
had lied to the police, he claimed he was now being truthful. When asked how one could
tell when he was lying and when he was not lying, defendant stated, “I don’t know.”
When the prosecutor asked defendant to explain why he had asked Detective Longoria if
he (defendant) could tell I.W. that he had hurt Mya, defendant replied, “[s]o she wouldn’t
be pressured into answering [the detective’s] questions.” Defendant testified that he
believed he had to lie for I.W. to protect the other children from being taken by
authorities. The prosecutor noted the children were already being taken by authorities
when defendant was telling lies and asked defendant why he did not tell the truth then.
Defendant said, “To keep [I.W.] from sitting in the place that I was sitting in.” He later
added, “I don’t know. I was still trying to protect [I.W.].” Likewise, the prosecutor
1 I.W. never told defendant that she hit Mya.
4
asked defendant why he did not tell the truth during his postarrest interview, defendant
said that he kept lying because he did not want I.W. to get in trouble. Defendant believed
that he had been arrested for lying. The fact that he had been charged for Mya’s
condition “came as a complete surprise” to him. Nonetheless, he elected to keep lying
because he thought “what good would it have done the kids with both of us in jail[.]” He
testified that he told his lawyer the truth.
On recross-examination, after noting that a year and a half had passed between
I.W.’s visit to the jail and defendant’s trial, the prosecutor asked defendant to explain
why he failed to alert authorities about I.W.’s statements to him during that time period.
Defendant responded that he had told his trial counsel and commented that he was unable
to prove that I.W. committed wrongdoing.
Defense counsel failed to object to the prosecutor’s questioning on grounds of
prosecutorial misconduct or error under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).2
II. PROSECUTORIAL MISCONDUCT
As noted above, defendant’s early statements to the investigating officers
described various possible ways that Mya received her head injuries. They included
2 Defense counsel’s sole objection was based on the attorney-client privilege.
After defendant testified that he told his lawyer about I.W.’s statements to him, and the
prosecutor asked why he did not tell the police, defense counsel objected as follows:
“[DEFENSE COUNSEL]: Objection to this line of questioning. Once he talks to
his lawyer, about that line of questioning.
“THE COURT: I think the last question was why didn’t you tell the police.
“[DEFENSE COUNSEL]: Move to strike as to the talking to the lawyer.
“THE COURT: That wasn’t the question; that was the answer that he told you.
The objection is overruled. [¶] You may proceed.”
5
another child hitting her over the head with a hairbrush, Mya self-inflicting the injuries,
and defendant possibly causing her to hit her head. Contrary to these statements, at trial
defendant testified that I.W. had said things to him at the hospital suggesting she had
inflicted the fatal abuse upon Mya. Defendant testified that I.W. came to see him while
he was in jail and said she would testify at trial and tell everyone what really happened.
The prosecutor cross-examined defendant about how his trial testimony significantly
differed from his statements to the detectives. Specifically, the prosecutor asked why
defendant had not told the detectives about his suspicions of I.W. or her statements to
him while he was in jail.
On appeal, defendant contends the prosecutor committed misconduct in
questioning him about his postarrest silence, and the questions violated his rights under
Doyle.
We conclude it was proper for the prosecutor to cross-examine defendant about
the inconsistencies between his trial testimony and his prior statements in the police
interviews and to argue the reasonable inference of recent fabrication from that evidence.
Moreover, defendant waived his Doyle claim and any related claim of prosecutorial
misconduct.
A. Forfeiture
An objection to the prosecutor’s questions in the trial court which does not specify
the issue raised on appeal forfeits the claim for appellate review. (See People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 318; People v. Letner and Tobin (2010) 50
Cal.4th 99, 199.) Likewise, the failure to object to prosecutorial misconduct grounds
6
forfeits a misconduct claim for purposes of appeal. (People v. Foster (2010) 50 Cal.4th
1301, 1350-1351.)
At trial, defense counsel’s sole objection was based on defendant “talking to the
lawyer.” Because there was no objection on Doyle grounds, the issue is forfeited.
(People v. Tate (2010) 49 Cal.4th 635, 691-692.)
Defendant also cites the prosecutor’s closing arguments before the jury as Doyle
error.3 However, defendant did not object or request any curative admonitions. Failure
to object to prosecutorial misconduct in the trial court and seek a curative admonition
forfeits the claim for appeal unless such an objection or request would have been futile.
(See People v. Silva (2001) 25 Cal.4th 345, 373.) “‘Because we do not expect the trial
court to recognize and correct all possible or arguable misconduct on its own motion
[citations], defendant bears the responsibility to seek an admonition if he believes the
prosecutor has overstepped the bounds of proper comment, argument, or inquiry.’
[Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 800.) Having deprived the trial
3 “[Defendant], who started this story with a series of lies, continued with you
yesterday. [¶] The lie that he came up with yesterday that he told for the first time to
anybody. That [I.W.] had confided to him had suggested that she was sorry for what
happened that morning and—he inferred that she did something to the baby from that.
That lie, if he was going to tell it—if that was the truth, he would have told it a long time
ago. . . .”
Later the prosecutor stated: “The theory goes something like this: The thinking is
after three and a half years of not protesting his innocence and saying that [I.W.] did it,
why would those cops believe him? Why would you believe him? Are you the ones who
are supposed to be fooled by that and Detective Longoria is not? Is that how that
works?”
Finally, the prosecutor added, “Watch those DVD’s. Watch his behavior. He can
turn that stuff on and off, just like he did for you. He’s had three and a half years to put
this thing together, and he didn’t get it right.”
7
court of the opportunity to address the errors he raises for the first time on appeal,
defendant’s claim of prosecutorial misconduct in conjunction with Doyle error has not
been preserved for purposes of appeal, and thus he has forfeited his claim.
B. Doyle Error
Notwithstanding forfeiture, there was no Doyle error or related prosecutorial
misconduct. In Doyle, the United States Supreme Court held the impeachment of a
defendant at trial with his postarrest silence after being admonished pursuant to Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda), would violate the Due Process Clause of the
Fourteenth Amendment. (Doyle, supra, 426 U.S. at p. 619; People v. Clark (2011) 52
Cal.4th 856, 959 (Clark).) Doyle error can occur during examination of witnesses or
closing argument. (People v. Lewis (2004) 117 Cal.App.4th 246, 256.) However, in
either situation, the rule in Doyle “prohibits the prosecution from exploiting a defendant’s
post-Miranda-advisement silence.” (Lewis, supra, at p. 256; Clark, supra, at p. 959; see
also People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555-1556.)
In People v. Galloway (1979) 100 Cal.App.3d 551, 556-558, the appellate court
found Doyle error when the prosecutor asked about and commented on the defendant’s
silence about an alibi until he testified at trial. Here, defendant was not silent. He
expressly waived his rights to silence and counsel following the Miranda advisement,
and reaffirmed what he had previously told Detective Longoria. Rather than remaining
silent, defendant reaffirmed his actions towards Mya without mentioning his suspicions
about I.W. Therefore, Doyle does not apply.
8
A similar Doyle claim was rejected by the California Supreme Court in People v.
Osband (1996) 13 Cal.4th 622 (Osband), in which defendant waived his Miranda rights
in a postarrest interview and offered the alibi that he was not at the crime scenes,
whereas, at trial the defendant admitted that he had committed crimes at both locations.
(Osband, supra, at p. 694.) The court held it was not Doyle error to question defendant
about his prior inconsistent statements, and “‘[s]uch questioning makes no unfair use of
silence, because a defendant who voluntarily speaks after receiving Miranda warnings
has not been induced to remain silent. As to the subject matter of his statements, the
defendant has not remained silent at all.’” (Osband, supra, at p. 694, citing Anderson v.
Charles (1980) 447 U.S. 404, 408.)
Here, defendant did not remain silent in his interview after receiving Miranda
warnings. He maintained that he may have caused Mya’s injuries by playing rough with
her, dropping her, or causing her to hit her head on the bed. However, at trial, he
recanted his statements, claimed that he had fabricated them, and decided to implement
I.W. as the possible cause of Mya’s injuries. Thus, the prosecutor’s questioning of
defendant about the inconsistencies between his prior statements and trial testimony did
not constitute Doyle error. (Osband, supra, 13 Cal.4th at p. 694; Anderson v. Charles,
supra, 447 U.S. at pp. 406, 408-409 [Doyle does not apply when defendant waives
Miranda rights and makes a statement but then gives a different version at trial].) Rather,
the questions were designed to elicit an explanation for his prior inconsistent statements
9
and attack I.W.’s alleged hearsay statement to defendant.4 They were not designed to
draw meaning from defendant’s silence in violation of Doyle, but to impeach both
defendant and I.W.’s alleged hearsay statements.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant protests that he was deprived of his constitutional right to effective
assistance of counsel because trial counsel failed to object to the prosecutor’s cross-
examination about defendant’s postarrest silence regarding I.W.’s involvement in Mya’s
injuries on Doyle error grounds. He further faults his counsel for failing to request
pinpoint instructions on third-party culpability so that the jury would be able to assess the
defense, the burden of proof and its relation to reasonable doubt.
A. Standard of Review
“The standard for establishing ineffective assistance of counsel is well settled. A
defendant must demonstrate that: (1) his attorney’s performance fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been more
favorable to the defendant. [Citation.] A reasonable probability is a probability
sufficient to undermine confidence in the outcome. [Citation.]” (People v. Stanley
(2006) 39 Cal.4th 913, 954.)
4The prosecutor’s hearsay objection to I.W.’s alleged statements to defendant
was overruled and defendant was allowed to testify as to what he claimed that I.W. told
him.
10
B. Failure to Object to Doyle Error
Because we have concluded there was no Doyle error, we likewise conclude there
was no ineffective assistance of counsel for failing to object. (Strickland v. Washington
(1984) 466 U.S. 668, 687.)
C. Pinpoint Instruction on Third-party Culpability
From the outset of the case, defense counsel indicated to the jury that “this is a
case of injury by the hands of another.” Defendant testified that he initially lied about his
involvement in Mya’s injuries to protect I.W., whose actions suggested her culpability.
Defense counsel’s closing argument focused on I.W.’s culpability. Recognizing there is
no CALCRIM or CALJIC instruction that directly addresses the third-party culpability
defense presented in this case, defendant nonetheless contends “this does not lessen trial
counsel’s duty to offer pinpoint instructions governing all elements of the defense case.”
He further claims that counsel should have requested modification of the credibility
instructions, including CALCRIM Nos. 362 [consciousness of guilt] and 370 [motive].
He maintains instructions that were tailored to address I.W.’s culpability were critical to
the jurors understanding this case.
Assuming, without deciding, that defendant’s attorney’s performance fell below
an objective standard of reasonableness in ensuring that the jurors were properly
instructed on all elements of defendant’s defense, we must determine whether there is a
reasonable probability that, but for counsel’s error, defendant would have received a
more favorable result. Here, we conclude that there was not.
11
The only evidence pointing to I.W.’s culpability came from defendant’s self-
serving statements. He claimed that I.W.’s words suggested she may have done
something to harm Mya, and she agreed to come to court to tell the truth but failed to do
so. However, defendant admitted that he did not know if she did anything and could not
“finger her.” In contrast, defendant initially admitted his actions could account for Mya’s
injuries. Such admission presented a strong case against him. Clearly, the primary issue
was defendant’s credibility. Should the jury believe defendant’s initial statements to the
investigating detectives or his trial testimony? To that end, the jury was instructed that
defendant was presumed innocent and the People bore the burden of proving guilt beyond
a reasonable doubt. (CALCRIM No. 220.) “Unless the evidence proves the defendant[]
guilty beyond a reasonable doubt, [he is] entitled to an acquittal and you must find [him]
not guilty.” The jurors were tasked with deciding the facts and the credibility of the
witnesses, including defendant. They heard the evidence and argument of counsel.
Given the strong evidence of defendant’s guilt, coupled with the instructions
received by the jury, counsel’s alleged errors were not “so serious as to deprive the
defendant of a fair trial . . . .” (Strickland v. Washington, supra, 466 U.S. at p. 687.)
Thus, because defendant failed to show that he suffered any prejudice as a result of his
counsel’s performance, we conclude that there is no reasonable probability that counsel’s
failure to request pinpoint instructions affected the verdict.
IV. DISPOSITION
We reject defendant’s claims of Doyle error and ineffective assistance of counsel
and affirm the judgment.
12
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.
13
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
JOSHUA ADAM MARSHALL, Petitioner.
No. 1 CA-CR 14-0501 PRPC
FILED 7-28-16
Petition for Review from the Superior Court in Maricopa County
No. CR 1998-093180
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin, Mikel Steinfeld
Counsel for Petitioner
STATE v. MARSHALL
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge Maurice Portley joined.
B R O W N, Chief Judge:
¶1 Petitioner Joshua Adam Marshall petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 Marshall pled guilty to first degree murder, conspiracy to
commit first degree murder, armed robbery, theft, and arson of a structure,
offenses he committed in 1998 when he was sixteen. The trial court
sentenced Marshall to concurrent terms of life imprisonment with a
possibility of parole after twenty-five years for murder and conspiracy to
commit murder. These terms were ordered to run consecutive to prison
terms imposed for the remaining offenses. While the applicable sentencing
statute provided for the possibility of parole after twenty-five years, the
legislature abolished parole in 1993 when it amended Arizona Revised
Statutes (“A.R.S.”) section 41-1604.06. See 1993 Ariz. Sess. Laws, ch. 255
§ 86 (1st Reg. Sess.) (amending A.R.S. § 41-1604.06); see also A.R.S. § 13-
751(A) (outlining sentences for first degree murder). Therefore, at the time
the trial court sentenced Marshall, the only way he could obtain release
after twenty-five years was through executive commutation or pardon of
his sentence. See A.R.S. §§ 31-402(C) (clemency); 31-443 (commutation). A
sentencing scheme that abolishes parole for life sentences and provides for
release based only on executive clemency does not provide a meaningful
opportunity for release from a life sentence. See Graham v. Florida, 560 U.S.
48, 57 (2010).
¶3 Marshall filed a notice of post-conviction relief in which he
challenged his sentence based on the Supreme Court’s decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012). Miller held that “mandatory life [sentences]
without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ’cruel and unusual
punishments.’” Id. at 2460. Marshall argued Miller represented a
significant change in the law and required the trial court to resentence him.
2
STATE v. MARSHALL
Decision of the Court
¶4 The trial court consolidated Marshall’s post-conviction
proceeding with those of a number of other petitioners who raised identical
claims. The court ordered the parties to file briefs that addressed whether
Miller was retroactive and whether the petitioners had cognizable claims
given that they had not yet served twenty-five years of their sentences. The
trial court then held a hearing on the consolidated claims, after which it
denied relief. The court held in relevant part that Miller was a significant
change in the law and was retroactive and that commutation or clemency
did not provide meaningful opportunities for release to offenders
sentenced to life with the possibility of release. The court further held,
however, that any issue as to whether Marshall’s sentence violated the letter
or spirit of Miller was resolved when the Arizona legislature reestablished
parole for juvenile offenders sentenced to life imprisonment with a
possibility of parole. See H.B. 2593, 51st Leg., 2d Reg. Sess. (2014)
(hereinafter “H.B. 2593”). Marshall now seeks review. We review the trial
court’s summary dismissal of a Rule 32 proceeding for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
¶5 In his petition for review, Marshall contends the trial court
erred by denying him a resentencing at which he could raise issues
regarding the application of H.B. 2593. He asserts he had intended to
investigate claims and present these potential issues at a resentencing, but
“the trial court plainly refused to consider” them. Among the issues he
would have raised and presents to this court is that H.B. 2593 was not
intended to apply retroactively, its retroactive application violates
separation of powers and ex post facto principles, and parole availability
under the statues does not satisfy Miller. Marshall also urges this court not
to address matters on review that the trial court has not previously
addressed.
¶6 We deny relief. Miller is a significant change in the law and is
retroactive. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016); State v.
Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). “A State may remedy a Miller
violation by permitting juvenile homicide offenders to be considered for
parole, rather than by resentencing them.” Montgomery, 136 S. Ct. at 736. If
we assume arguendo that Marshall’s sentence violated Miller, then H.B.
2593 and the resulting statutory changes remedied that violation because
they permit “juvenile homicide offenders to be considered for parole[.]” See
Montgomery, 136 S. Ct. at 736.
¶7 Through H.B. 2593, the legislature enacted A.R.S. § 13-716 and
amended A.R.S. § 41-1604.09(I). 2014 Ariz. Sess. Laws, ch. 156, § 2 (2d
Regular Sess.). Arizona law now provides:
3
STATE v. MARSHALL
Decision of the Court
Notwithstanding any other law, a person who is sentenced to
life imprisonment with the possibility of release after serving
a minimum number of calendar years for an offense that was
committed before the person attained eighteen years of age is
eligible for parole on completion of service of the minimum
sentence, regardless of whether the offense was committed on
or after January 1, 1994.
A.R.S. § 13-716. Further, any person sentenced to life imprisonment and
who is eligible for parole pursuant to A.R.S. § 13-716 is now expressly
subject to the parole eligibility provisions of A.R.S. § 41-1604.09. A.R.S.
§ 41-1604.09(I). Therefore, Marshall now has a meaningful opportunity to
be placed on parole once he completes twenty-five years of his sentence.
This remedies any theoretical violation of Miller. Additionally, this court
has already considered and rejected the arguments Marshall makes
regarding separation of powers, the retroactivity claims of H.B. 2593, and
the resulting legislative changes. See State v. Vera, 235 Ariz. 571, 576-77,
¶¶ 21-22 (App. 2014).
¶8 Finally, Marshall’s ex post facto argument is meritless. He
claims that A.R.S. § 13-719 violates the ex post facto doctrine because the
statute “takes away the vested right to a hearing to be absolutely discharged
from parole, instead requiring defendants to remain on parole for the
remainder of their lives.” “A basic principle of criminal law requires that an
offender be sentenced under the laws in effect at the time he committed the
offense for which he is being sentenced.” State v. Newton, 200 Ariz. 1, 2, ¶ 3
(2001). Marshall committed his offenses in 1998. As noted, the legislature
abolished parole in 1993 for everyone except those offenders who
committed their crimes before January 1, 1994. This also abolished the right
to absolute discharge from parole. A.R.S. § 41-1604.09(I). Therefore, at the
time he committed the murder, Marshall had no right to parole at all, let
alone a vested right to a form of parole that allowed him the opportunity to
obtain an absolute discharge therefrom.
¶9 We grant review and deny relief.
:jt
4
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UVO OLOGBORIDE,
Appellant,
v.
INVERRARY GARDENS CONDO I, a
Florida Corporation, not-for-profit,
Appellee.
No. 4D18-1905
[January 31, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. CACE 16-021414
(04).
Uvo Ologboride, Lauderhill, pro se.
Nathan M. Whitford of Tucker & Lokeinsky, P.A., Fort Lauderdale, for
appellee.
PER CURIAM.
Affirmed.
CONNER, FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
|
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IN THE COURT OF APPEALS OF IOWA
No. 12-2062
Filed May 14, 2014
IN RE THE MARRIAGE OF KELLY R. GENSLEY
AND KANDI J. GENSLEY
Upon the Petition of
KELLY R. GENSLEY,
Petitioner-Appellee,
And Concerning
KANDI J. GENSLEY,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Iowa County, Robert E. Sosalla,
Judge.
Respondent appeals a district court order dismissing allegations petitioner
was in contempt of provisions of the parties’ dissolution decree. REVERSED
AND REMANDED.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea, L.L.P., Cedar
Rapids, for appellant.
Dennis R. Mathahs, Marengo, for appellee.
Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013)
2
MAHAN, S.J.
The respondent appeals the district court decision dismissing several of
her allegations the petitioner was in contempt under the terms of the parties’
dissolution decree. The court determined the allegations should be dismissed
because the petitioner had not been afforded his right to a jury trial on the
contempt allegations. We conclude the petitioner had not preserved error on his
demand for a jury trial. Therefore, we reverse the decision of the district court
and remand for further proceedings.
I. Background Facts & Proceedings
Kelly and Kandi Gensley were previously married. A dissolution decree
was entered for the parties on October 30, 2008, granting Kandi sole legal
custody and physical care of the parties’ three children. Kelly was granted
specified visitation and ordered to pay child support. On appeal we slightly
modified the visitation schedule, but otherwise affirmed the dissolution decree.
See In re Marriage of Gensley, 777 N.W.2d 705, 716-18 (Iowa Ct. App. 2009).
The present appeal involves an application for rule to show cause filed by
Kandi on February 8, 2012. She alleged Kelly (1) had failed to return one of the
children after visitation, (2) had signed documents on behalf of the minor child,
(3) changed the child’s residence to Poweshiek County, (4) did not take the child
to scheduled activities, and (5) was in arrears in his child support obligation.
Kandi asked to have Kelly serve a six-month jail sentence on each count. She
also asked for a modification of the visitation provisions, an order directing Kelly
to dismiss a modification action in another county, an order prohibiting him from
filing any further modifications actions, an order requiring him to keep his child
3
support obligation current, and that Kelly be required to pay her attorney fees for
the contempt action.
On March 21, 2012, Kelly, who was appearing pro se, filed a demand for a
jury trial. No action was taken on his request. A hearing was held on July 3,
2012, before the court. Kelly did not object to the lack of a jury trial and
participated in the contempt hearing. At the close of the hearing, the court
determined Kelly was in contempt for failure to pay child support. He was
sentenced to 180 days in jail, with all but sixty days suspended. The court
reserved ruling on the other matters raised in the application for rule to show
cause.
After the hearing Kelly filed four post-hearing motions. He did not raise
the issue of his request for a jury trial in any of these motions. The motions were
later denied by the court.
On August 24, 2012, the district court entered an order stating that in
reviewing the file, the court found Kelly’s request for a jury trial. The court stated:
Normally, [Kelly’s] failure to bring his demand to the court’s
attention and request a ruling, results in a waiver of the subject
involved. In this instance, however, given the fundamental nature
of [Kelly’s] right to a jury trial and his pro se status I conclude that a
different result is required.
I conclude that, to preserve his right to a jury trial, it is
necessary for me to dismiss the remaining allegations of contempt
without prejudice to [Kandi’s] ability to re-file the allegations if she
desires. In this way [Kelly] can re-assert his jury demand if he
desires.
(Citations omitted). The court then dismissed the allegations of contempt in
Kandi’s application for rule to show cause, other than the allegation of failure to
4
pay child support, which had already been addressed. The court ordered Kelly to
pay $3063.93 for Kandi’s attorney fees.
Both parties filed motions pursuant to Iowa Rule of Civil Procedure
1.904(2). In an order filed September 24, 2012, the court denied the motions.
Kandi appealed the district court’s rulings.1
II. Standard of Review
When an application for rule to show cause is dismissed, a direct appeal is
permitted. State v. Iowa Dist. Ct., 231 N.W.2d 1, 4 (Iowa 1976). Our review is
not de novo, but on assigned errors only. City of Masonville v. Schmitt, 477
N.W.2d 874, 876 (Iowa Ct. App. 1991). When, in a dissolution proceeding, a
court refuses to find a party in contempt, “we review the record to determine if
substantial evidence exists to support the trial court’s finding.” In re Marriage of
Hankenson, 503 N.W.2d 431, 433 (Iowa Ct. App. 1993). Because “proof beyond
a reasonable doubt must be established for a finding of contempt, substantial
evidence to support such a finding is such evidence as could convince a rational
trier of fact that the alleged contemnor is guilty of contempt beyond a reasonable
doubt.” Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010).
III. Merits
We first address the issue of whether Kelly preserved error on his request
for a jury trial. Kelly filed his request for a jury trial on March 21, 2012. At that
time the application for rule to show cause had been set for a hearing before the
court on April 25, 2012. Kelly filed a motion for a continuance on April 20, 2012.
1
Kelly had also appealed. The Iowa Supreme Court determined his request for relief
should have been in the form of a petition for writ of certiorari. The court denied
permission to bring a certiorari action. Procedendo was issued on his appeal.
5
The hearing was reset for May 9, 2012, then May 8, 2012, due to the court’s
schedule. Kelly again asked for a continuance. The hearing was reset for July 3,
2012. Kelly filed a third request for a continuance on June 21, 2012. The
request was denied. Kelly’s motions for a continuance did not mention he had
requested a jury trial. Nor did he object to the fact the matter was scheduled for
a hearing before the court. Instead, all three of his motions for a continuance
asked to reschedule the hearing before the same court in which the hearing had
already been set.
The case proceeded to a hearing before the court on July 3, 2012. Kelly
represented himself during the hearing. He did not make any objection or
mention to the court that he had requested a jury trial. He fully participated in the
hearing by objecting on other matters, questioning his witness, cross-examining
Kandi’s witnesses, testifying himself, and making a closing argument. At the
close of the hearing the court addressed the claim Kelly was in contempt for
failure to pay child support and reserved ruling on the other issues raised in the
motion for rule to show cause.
Before the court ruled on the matters that had been reserved, Kelly filed
four pro se motions—to immediately discontinue his child support obligation, to
be released from incarceration, to be placed on work release, and to enlarge and
amend the court’s ruling. In none of these post-hearing motions does he mention
that he had requested a jury trial.
The district court noted it had found the request for a jury trial itself while
reviewing the court file. In its order of August 24, 2012, the court stated:
6
Upon review of the court file in preparation of ruling on the
remaining allegations of contempt I noted that on March 21, 2012,
[Kelly] filed a demand for a jury trial regarding the contempt
allegations. The file does not reflect that the court ever ruled on
[Kelly’s] jury trial demand. [Kelly] did not raise the issue of his jury
trial demand before me. He did not file any written request for a
ruling from the court on his jury trial demand. Further, he has not
filed any 1.904(2) motion bringing his demand to the court’s
attention.
The court noted that normally a party’s failure to bring his demand to the court’s
attention would result in a finding the party had waived the matter. The court
determined, however, that Kelly had adequately raised the issue given the
fundamental nature of the right to a jury trial and the fact Kelly was acting pro se.
Generally, when a party is entitled to a jury trial and has filed a demand for
a jury trial, if the party does not object when the case is scheduled to be tried
before the court, the party has failed to preserve error. Vaughn v. Ag
Processing, Inc., 459 N.W.2d 627, 637 (Iowa 1990) (“By not objecting when the
case was scheduled for a bench trial plaintiff failed to preserve error on this
issue.”); see also Wende v. Orv Rocker Ford Lincoln Mercury, Inc. 530 N.W.2d
92, 95 (Iowa Ct. App. 1995) (noting that because a party had not objected to the
submission of a motion to the court as the finder of fact, “she failed to preserve
any claim of error involving the procedure followed by the trial court”). Thus,
although the right to a jury trial is a fundamental right, it is still subject to our rules
of error preservation.
Furthermore, “[w]e do not utilize a deferential standard when persons
choose to represent themselves.” Metropolitan Jacobson Dev. Venture v. Bd. of
Review, 476 N.W.2d 726, 729 (Iowa Ct. App. 1991). If a person chooses to
proceed pro se in a case, it is done at their own risk. Kubik v. Burk, 540 N.W.2d
7
60, 63 (Iowa Ct. App. 1995). When a party chooses to represent himself, he is
judged by the same standard as an attorney. In re Estate of DeTar, 572 N.W.2d
178, 181 (Iowa Ct. App. 1997). Although Kelly was proceeding pro se in the
contempt proceeding, he is not treated any differently than if he had been
represented by an attorney. We conclude Kelly’s pro se status cannot be used
as an excuse for his failure to preserve error on his request for a jury trial.
We do not determine whether or not Kelly actually had a right to a jury trial
for these contempt proceedings.2 Instead, we determine that even if he did have
the right to a jury trial, he did not preserve error on this issue. We therefore
conclude the district court improperly cited the failure to have the contempt
matter tried before a jury as a reason to dismiss the allegations of contempt
found in Kandi’s motion for rule to show cause that were in addition to the matter
of Kelly’s failure to pay child support, which had already been determined. We
determine the district court erred by dismissing the remaining allegations of
contempt in its ruling of August 24, 2012. We conclude the matter should be
remanded to the district court for a ruling on the allegations of contempt that had
been reserved after the hearing on July 3, 2012.
IV. Attorney Fees
Kandi seeks attorney fees for this appeal. Iowa Code section 598.24
(2011) permits attorney fees to be assessed against a party who has been found
to be in contempt of a dissolution decree. See Farrell v. Iowa Dist. Ct., 747
N.W.2d 789, 792 (Iowa Ct. App. 2008). At this point in time Kelly has not been
found to be in contempt on the issues that were dismissed by the district court.
2
See Lewis v. United States, 518 U.S. 322, 330 (1996).
8
We have concluded only that the contempt proceeding may proceed. We decline
to award appellate attorney fees.
We reverse the decision of the district court dismissing Kandi’s allegations
of contempt and remand to the court for further consideration. Costs of this
appeal are assessed to Kelly.
REVERSED AND REMANDED.
|
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173 Cal.App.3d 205 (1985)
218 Cal. Rptr. 494
THE PEOPLE, Plaintiff and Respondent,
v.
JEROME ANTHONY ROGERS, Defendant and Appellant.
Docket No. B006485.
Court of Appeals of California, Second District, Division Two.
October 1, 1985.
*207 COUNSEL
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Carol Wendelin Pollack and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ROTH, P.J.
Jerome Rogers appeals from his conviction of burglary, kidnaping, sodomy, residential robbery, and grand theft auto. He contends that his prior felony convictions should not have been available for impeachment, and that evidence of another, uncharged crime should not have been admitted. We affirm.
On February 14, 1984, Lisa K., 23 years old, went to bed in her North Hollywood apartment about 8:30 p.m. She was awakened before midnight by Rogers sitting on top of her. He was holding a butcher knife taken from her kitchen. He stuffed a red bandana into her mouth. He forced her to take off her nightgown, turned her onto her stomach and sodomized her. Afterwards he asked Lisa where her money was, whether she had any drugs, and whether she had any valuables. When Lisa uttered any sound he held the knife threateningly to her face. He found Lisa's keys and forced her to select the key which operated her car. He forced her to put on a robe and accompany him to the car. They both got into Lisa's car. Rogers drove around, looking for a freeway on-ramp so that he could drive to Los Angeles. He told Lisa to keep her eyes closed, or else he would take her somewhere to be raped by a lot of black men.
*208 Lisa escaped from the car as it was stopped for a red light. She got into a taxi which brought her to a police car. She told the officers that she had been raped, and gave them a description of her car. She was taken to a hospital where semen samples were taken.
The police apprehended Rogers after a high speed chase. Rogers had a butcher knife, a simulated diamond ring, a gold chain, two calculators, and a pen and pencil set, all taken from Lisa's home. At trial a criminalist testified that he examined the pertinent serological evidence collected from Lisa, her robe and sheets. He compared it with the results of an analysis of Rogers' saliva and blood. He concluded that Rogers could have provided the fluids found on Lisa's bedding, and that only 4 percent of the population could have done so.
Lisa positively identified Rogers as her assailant.
Over Rogers' objection the court permitted Suzanne L. to testify. On February 14, 1984, at about 11 p.m. Suzanne was in the laundry room of her apartment building, which is one or two blocks from Lisa's apartment. Someone put his hand around her neck. He had a pocket knife in the other hand. At trial she identified Rogers as that man. He told Suzanne to lie on the floor, and to put one of her son's washed diapers in her mouth. He turned off the light in the laundry room and dragged Suzanne to her feet. He told her to undress. As Suzanne undressed she noticed that Rogers had put down the knife. She grabbed it and stabbed at Rogers in the neck and stomach areas. He pushed her against the wall and ran away in the direction of Lisa's apartment. When arrested, Rogers had a cut on the lower left side of his chest. There were rips on the left sides of both of the T-shirts he was wearing when arrested.
The court ruled preliminarily that if Rogers testified he could be impeached with three prior felony convictions, two for robbery and one for driving another person's automobile. Because of the ruling Rogers did not testify. He did not call any witnesses. In cross-examination and in his final argument he tried to cast doubt on the victims' identification of him as their attacker. The jury convicted him of all counts.
(1) Rogers' first assignment of error is that the court erred in ruling that it lacked discretion to exclude his prior convictions for the purpose of impeachment.
Prior to voter ratification of Proposition 8 in June 1982, the admissibility of priors to impeach was controlled by the rules of People v. Beagle (1972) 6 Cal.3d 441 [99 Cal. Rptr. 313, 492 P.2d 1], and its posterity. Proposition *209 8 added article I, section 28, subdivision (f) to the California Constitution: "Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment ... in any criminal proceeding." This new subdivision was intended to alter the fact that "the guidelines of Beagle had, in fact, become rigid limitations on the discretion of the trial court" because of subsequent ossifying Supreme Court decisions. (People v. Castro (1985) 38 Cal.3d 301, 308 [211 Cal. Rptr. 719, 696 P.2d 111].) Today the only limitation on the admissibility of prior felony convictions is that due process demands relevance, which Castro construes as involving "moral turpitude." (Id., at pp. 313-314.)
The Supreme Court however also determined that a trial court retains discretion to exclude relevant priors pursuant to Evidence Code section 352, which states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Castro, supra, 38 Cal.3d at pp. 312-313.) Thus, the trial court erred in its preliminary statement suggesting it doubted its power to exclude Rogers' prior convictions. Does this doubt require reversal of Rogers' conviction?
In People v. Bonilla (1985) 168 Cal. App.3d 201 [214 Cal. Rptr. 191], the court held harmless the trial court's failure to exercise its discretion to exclude a prior conviction when it thought that Proposition 8 forbade discretionary exclusion. Bonilla was based on the fact that the prior assault with intent to commit rape was in fact admissible upon a proper exercise of discretion, i.e., was morally turpid, and that the evidence of guilt was overwhelming. (Id., at p. 205.) There is, however, an important difference between Bonilla and the case at bench: in the former case the defendant chose to testify. At bench Rogers declined to testify for fear of impeachment.
The Courts of Appeal are split on the significance of a defendant's failure to testify because of the risk of impeachment by prior felonies. People v. Almarez (1985) 168 Cal. App.3d 262 [214 Cal. Rptr. 105], takes the view that when the defendant does not testify, the error is reversible per se, relying on People v. Rist (1976) 16 Cal.3d 211 [127 Cal. Rptr. 457, 545 P.2d 833]. (People v. Almarez, supra, 168 Cal. App.3d at p. 268.) The court in People v. Pickett (1985) 163 Cal. App.3d 1042 [210 Cal. Rptr. 85] also applied a "per se reversible" standard in a like situation. It determined that the evidence against Pickett was not "irrebuttable," and refused to "speculate as to the effect the defendant's testimony might have had on the jury." (Id., at p. 1049.) However, the conclusion that Rist requires reversal *210 in every instance in which the defendant is silent does not in our opinion withstand analysis and is not universally accepted. Before Proposition 8 was enacted, People v. Anjell (1979) 100 Cal. App.3d 189 [160 Cal. Rptr. 669], and People v. Lassell (1980) 108 Cal. App.3d 720 [166 Cal. Rptr. 678] held that the trial court's error in permitting impeachment by priors did not warrant reversal, even though the defendants in those cases did not testify. In the post-Proposition 8 age, People v. Fisher (1984) 153 Cal. App.3d 826 [200 Cal. Rptr. 683] is in accord.
Until these discordant Court of Appeal decisions are resolved by our Supreme Court, we adopt the analysis of People v. Fisher, supra: "Unquestionably, neither Barrick, Spearman, Fries nor Rist mandates a reversal `per se' in every case where a defendant refuses to testify after the trial court has ruled that if he testified, the prosecutor could inquire into prior similar or identical felony convictions for purposes of impeachment. [¶] In Barrick, Spearman and Fries, the Supreme Court reversed the judgments of conviction only after a careful analysis of the total evidence in those particular cases and held the error was not harmless after applying the test enunciated in People v. Watson, supra, 46 Cal.2d 818 [299 P.2d 243].[4]"
Footnote 4 states: "In Fries, the majority opinion concluded at pages 233-234 of 24 Cal.3d with the following statement: `It is clear that the trial court erred in admitting the prior robbery conviction since the conviction was identical to the offense for which appellant was on trial. Further, this court has no clue as to what appellant's testimony would have been had he testified. Absent any basis for concluding that such testimony would not have affected the result, "the court is of the opinion `that it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of this error.'" (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].)' (Italics added.) [¶] In Spearman, the court stated at page 118 of 25 Cal.3d: `Finally, this court must decide whether the trial court's improper ruling constituted reversible error. (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].) After consideration of the evidence and the state of the record in this case, it cannot be concluded the error was harmless. [¶] At the outset, it is recognized that the evidence presented at trial appeared, on paper, to have made out a strong, albeit circumstantial case against appellant. However, that evidence was not, even on a cold transcript, irrebuttable. [¶] More significantly, because of the trial court's erroneous ruling, appellant did not testify and thus was prevented from presenting any defense to the charges. (See also People v. Fries, supra, 24 Cal.3d at pp. 228-229 [155 Cal. Rptr. 194, 594 P.2d 19].) Unquestionably, appellant might have presented exculpatory testimony. He might, for example, have testified he was not aware of the presence of the heroin in the bumper or did not exercise dominion and control over it. He might have *211 explained that Bluett's car was routinely and recently used by other acquaintances of Bluett, including addicts such as Howard who may themselves have stored heroin in the bumper without the knowledge of the appellant. Alternatively, appellant might have admitted possession of the heroin for personal use but denied any intent to sell. Such testimony, if true would warrant a conviction for a lesser offense than possession for sale.' (Italics added.) [¶] In the most recent Supreme Court Barrick case, 33 Cal.3d 115 [187 Cal. Rptr. 716, 654 P.2d 1243], the court said at page 130: `Having concluded that the trial court erred in denying defendant's motion to exclude evidence of his prior conviction as "sanitized," we must determine whether this error affected the judgment so as to require reversal. The evidence supporting the conviction was largely circumstantial. Defendant was found asleep in a recently stolen automobile. The record reveals that following the ruling on the Beagle motion, the attorney for the defendant advised him not to testify. This court has no way of knowing what defendant's testimony would have been, thus, we have no basis for concluding that such testimony would not have affected the result. "`[E]rrors at a trial that deprive a litigant of the opportunity to present his version of the case ... are ... ordinarily reversible, since there is no way of evaluating whether or not they affected the judgment.' (Traynor, [The Riddle of Harmless Error (1970)] at p. 68.) A conviction under such circumstances is a `miscarriage of justice' within the meaning of article VI, section 13 of the California Constitution. (See People v. Watson [(1956)] 46 Cal.2d [818, 836,] 837 [299 P.2d 243]; People v. Gainer (1977) 19 Cal.3d 835, 855 [139 Cal. Rptr. 861, 566 P.2d 997]; People v. Fries, supra, 24 Cal.3d at pp. 233-234.)" (People v. Spearman, supra, 25 Cal.3d at p. 119.)' (Italics added.)"
The court concluded: "Since the Supreme Court itself, in Barrick, Spearman, and Fries, applied the harmless error test as enunciated in People v. Watson, supra, 46 Cal.2d 818, to the evidence in those cases, it is axiomatic that it is the function of this court to review the entire record and determine whether or not the error in this particular case was, or was not, harmless by applying the same [Watson] test." (People v. Fisher, supra, 153 Cal. App.3d at pp. 834-835.)
Rogers' prior convictions were of robbery and driving another person's car. Theft crimes are without doubt morally turpid. Thus, the priors were admissible to impeach Rogers.
Rogers' attorney made the following statement as he explained that his client would not testify: "The I wanted to just add a couple of things to the record about that in case there is some review of the matter later. That is to say that the defendant, I believe, could explain, if he did testify, why he was in the car and could explain discovery of the stolen property in the *212 car and could explain the injuries that were found on his person and deny the offenses. So I'll just submit that for the record." This statement, apparently made for our benefit, does not help Rogers. He was found with Lisa K.'s jewelry, calculators, and butcher knife; he was caught 45 minutes after the crime in the victim's car, which he drove at high speed and with the headlights extinguished in an attempt to escape the police; he belonged to the 4 percent of the population whose semen type was found on Lisa's sheets and bathrobe; he was positively identified by the victim; he was positively identified by Suzanne L., whom he tried to rape less than an hour earlier and but one block from Lisa K.'s apartment. The evidence of guilt is overwhelming and brings to mind the remark in People v. Fisher: "`With or without [defendant Fisher's] impeachment [any version presented by him] would have strained the credulity of a rational trier of fact in such fashion as to render the improper references to [Fisher's] previous convictions of little consequence.'" (People v. Fisher, supra, 153 Cal. App.3d at p. 837, quoting People v. Betts (1980) 110 Cal. App.3d 225, 234 [167 Cal. Rptr. 768].) If there was a basis for an insanity defense which the record does not suggest or for any of the orthodox defenses and Rogers' counsel was provided or could have been provided with evidence to support such a defense, but counsel omitted to utilize the same such an issue can be reached by habeas corpus. The error was harmless.
(2) Rogers' second point is that the evidence of another crime, i.e., the testimony of Suzanne L., should not have been admitted.
Evidence of uncharged offenses is inadmissible if intended merely to show the defendant's criminal propensities. (Evid. Code, § 1101, subd. (a).) However, such evidence is admissible if relevant to a contested issue at trial, such as identity. (Evid. Code, § 1101, subd. (b).) Admission of uncharged crimes lies within the sound discretion of the court, and will lead to reversal only if an abuse of discretion is found. (People v. Thomas (1978) 20 Cal.3d 457, 466 [143 Cal. Rptr. 215, 573 P.2d 433].) To be admissible, the prior must not be too remote; the prior must involve a similar victim; and the prior must be similar to the charged offense. (People v. Epps (1981) 122 Cal. App.3d 691, 699 [176 Cal. Rptr. 332].)
The identity of Lisa's assailant was the sole disputed issue. Therefore Suzanne's evidence was relevant to show that Rogers was the culprit. There is no problem with remoteness, the two attacks having occurred within an hour of one another. Both victims were young caucasian women living in the same neighborhood. The crimes share several common features: The attacker menaced each victim with a knife; the attacker gagged each victim with a piece of cloth; and the attacker forced each victim to lie face down. *213 Finally, both Suzanne L. and Lisa K. positively identified Rogers as their attacker.
(3) Rogers asserts that Suzanne L.'s testimony was unnecessarily cumulative. Identity of a defendant charged with a crime is the "guts" of any prosecution for the crime charged. And although the testimony of a competent person who is the victim of a crime and who has been over a period of time in close contact with a named defendant is as close to demonstration of the fact of identity as evidence can make it, excessive care in this facet of a criminal prosecution needs no justification. We find no abuse of discretion in the admission of Suzanne L.'s testimony.
The judgment is affirmed.
Compton, J., and Beach, J., concurred.
Appellant's petition for review by the Supreme Court was denied January 23, 1986.
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45 F.3d 438NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,v.Daniel Fernando WILSON, Defendant-Appellant.
No. 94-50192.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 19, 1994.*Decided Dec. 27, 1994.
Before: SNEED, D.W. NELSON and TROTT, Circuit Judges.
1
MEMORANDUM**
2
Daniel Fernando Wilson appeals his conviction, following a conditional guilty plea, to one count of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a), and one count of using a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). Wilson contends that the district court erred by denying his motion to dismiss the indictment because his Sixth Amendment right to a speedy trial was violated. We have jurisdiction under 28 U.S.C. Sec. 1291. We review de novo the denial of a motion to dismiss based upon the Sixth Amendment right to a speedy trial. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir.1993). We review the district court's factual findings for clear error. Id. We affirm.
A. Background
3
On December 31, 1991, Wilson was arrested for a bank robbery which had been committed earlier that day. After federal agents questioned him and he confessed to the robbery, he was turned over to California state authorities because of several warrants for his arrest on unrelated state charges.
4
On May 22, 1992, a federal grand jury issued an indictment against Wilson, charging him with bank robbery, and using a firearm in relation to a crime of violence. The U.S. Attorney's office placed a federal detainer on Wilson in September 1992.
5
Wilson pleaded guilty to the state charge on March 31, 1993 and was sentenced to two years imprisonment. On May 2, 1993, Wilson was paroled from state prison, but detained pursuant to the federal detainer. On May 6, 1993, federal agents arrested Wilson based upon the bank robbery charged in the federal indictment. On May 7, 1993, Wilson appeared before a U.S. magistrate judge for a removal hearing, at which time counsel was appointed to represent him. Wilson was transferred to the Central District of California and remained at the federal detention center until October 4, 1993, when he was arraigned.
6
On November 1, 1993, Wilson filed a motion to dismiss the charges based upon a violation of his right to a speedy trial. On November 22, 1993, the district court held a hearing on this issue, and determined that Wilson had not been prejudiced by the delay. The district court denied Wilson's motion to dismiss and ordered that Wilson receive credit on his federal sentence for time served in both federal and state custody since the date of his initial arrest. Wilson entered a conditional guilty plea on November 22, 1993.
B. Discussion
7
Wilson contends that the twenty-two month delay between his initial arrest and his arraignment on federal charges violated his right to a speedy trial under the Sixth Amendment. We disagree.
8
The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." U.S. Const. amend. VI. A court weighs four factors to determine whether a defendant has been denied a right to a speedy trial under the Sixth Amendment: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant timely asserted his speedy trial right; and (4) any prejudice resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530-33 (1972); Doggett v. United States, 112 S.Ct. 2686, 2690 (1992).
9
The length of the delay is a "threshold" factor. United States v. Sears, Roebuck and Co., 877 F.2d 734, 739 (9th Cir.1989). If the defendant can demonstrate that the delay was long enough to be "presumptively prejudicial", it is necessary to examine the other three factors set forth in Barker. Doggett, 112 S.Ct. at 2690-91.
10
A defendant's right to a speedy trial is not activated until the date of federal accusation. See United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir.1986). "One becomes 'accused' when there is 'either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.' " United States v. Romero, 585 F.2d 391, 398 (9th Cir.1978) cert. denied, 440 U.S. 935 (1979) (quoting United States v. Marion, 404 U.S. 307, 320 (1971)); accord Sears, 877 F.2d at 739.
11
Wilson argues that the delay should be measured from the date of his initial arrest until his arraignment on federal charges. Although Wilson was initially arrested for the bank robbery on December 31, 1991, and questioned by federal agents, he was then detained by state authorities because of several outstanding state warrants. Wilson was not "accused" for purposes of the speedy trial clause until he was indicted on federal charges on May 22, 1992. See Romero, 585 F.2d at 398 (generally, pre-indictment delay is not tested by the speedy trial clause, but by the due process clause).
12
Because Wilson was not arraigned in federal court until seventeen months after he was indicted on federal charges, the delay is considered "presumptively prejudicial" under the Barker analysis. See Beamon, 992 F.2d at 1012-13 (seventeen month delay, although "not great", is sufficient to trigger Barker speedy trial inquiry); Doggett, 112 S.Ct. at 2691 n. 1 (courts have generally found delays approaching one year to be presumptively prejudicial). Therefore, we examine the other three Barker factors in turn. See Beamon, 992 F.2d at 1012.
13
"The reason for the delay is the focal inquiry." Sears, 877 F.2d at 739. The less at fault the government was for the delay, the more likely the delay was justified. Barker, 407 U.S. at 531.
14
Although the total delay between Wilson's federal indictment and arraignment was seventeen months, the government was at fault for only a portion of it. Because Wilson did not plead guilty to the unrelated state charge until March 31, 1993, a trial on the federal bank robbery charge prior to that date would have been difficult. See Arnold v. McCarthy, 566 F.2d 1377, 1383 (9th Cir.1978) (trial on a robbery charge would have been "impossible" during the first several months after indictment, since the defendant was engaged in defending against an unrelated murder charge).
15
The main focus of Wilson's Sixth Amendment claim, therefore, is upon the five month delay from May 1993 to October 1993. Wilson claims that the government either intentionally or negligently failed to arraign him after his removal to the federal detention center. The government admitted that the five month delay between Wilson's removal to a federal detention center and his arraignment was due to inadvertence. Because there is no evidence to suggest that this delay was intentional, we find that government negligence caused the five month delay between Wilson's federal arrest and arraignment. See Sears, 877 F.2d at 740. Whereas deliberate attempts to delay the trial should be weighed heavily against the government, " '[a] more neutral reason such as negligence ... should be weighted less heavily.' " Id. (quoting Barker, 407 U.S. at 531).
16
We next turn to the third factor, Wilson's assertion of his rights. Although a defendant does not waive the right to a speedy trial by failing to assert it, the degree to which the defendant has asserted the right is one of the factors to be considered in the balance. Barker, 407 U.S. at 531; Sears, 877 F.2d at 740.
17
Here, Wilson received the detainer informing him of the federal charges in September 1992, but failed to check the box demanding a speedy trial on the detainer form. Wilson's attorney, however, did contact the U.S. Attorney's office and request that Wilson be brought to trial on the bank robbery charge before the state charge proceeded to trial. The attorney submitted an affidavit stating that he had made this request on at least ten separate occasions. The third Barker factor does not weigh against Wilson.
18
Finally, we determine whether the post-indictment delay resulted in prejudice to Wilson. The amount of prejudice that the defendant must show depends on the reasons for the delay.1 When the government has used reasonable diligence to pursue the defendant, the defendant must show that the delay caused actual prejudice to his defense. Doggett, 112 S.Ct. at 2693-94; United States v. Aguirre, 994 F.2d 1454, 1457 (9th Cir.), cert. denied, 114 S.Ct. 645 (1993). When government negligence caused the delay, the need to prove prejudice diminishes as the delay increases. Doggett at id.; Beamon, 992 F.2d at 1013. Finally, when the delay is lengthy and attributable to bad faith by the government, no showing of prejudice is required. Doggett at id.; United States v. Shell, 974 F.2d 1035, 1036 (9th Cir.1992).
19
Here, where government negligence caused the delay, and the delay is not lengthy, we consider "the amount of delay in relation to particularized prejudice." See Beamon, 992 F.2d at 1014 (seventeen month delay not sufficient to excuse defendant from any showing of actual prejudice). Actual prejudice may be shown by: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the defense will be impaired with the passage of time. Doggett, 112 S.Ct. at 2692; Beamon, 992 F.2d at 1014.
20
Wilson contends he was prejudiced by the delay in that: (1) he experienced anxiety because he did not know when he would be prosecuted for this charge; (2) he was unable to obtain certain pieces of evidence, such as testimony from bank tellers who were no longer employed at the bank; and (3) he received a longer sentence because the state court conviction was counted in calculating his federal sentence under the Guidelines.
21
Nothing in the record indicates that the bank tellers would have provided exculpatory testimony. Furthermore, there was a great deal of evidence against Wilson, including a valid confession. Speculation that the delay may have contributed to a longer sentence is insufficient to establish prejudice. See Beamon, 992 F.2d at 1014. In addition, Wilson was not prejudiced by his post-indictment incarceration because he received credit at sentencing for time already served. See United States v. Baker, 10 F.3d 1374, 1401 (9th Cir.1993). Wilson's failure to demonstrate actual prejudice as a result of the delay weighs heavily in favor of the government. Id.
22
After evaluating all of the Barker factors, we do not find a violation of Wilson's Sixth Amendment right to a speedy trial. See Beamon, 992 F.2d at 1015. Accordingly, the district court did not err by denying Wilson's motion to dismiss. Id.
23
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
The Supreme Court recently modified the fourth Barker factor, holding that a defendant is not always required to show actual prejudice in order to prove a violation of his speedy trial rights. See Doggett, 112 S.Ct. at 2693-94. Prior to Doggett, the defendant had to show actual prejudice, see United States v. Loud Hawk, 474 U.S. 302, 315 (1986), whereas prejudice may now be presumed depending on the length of, and reasons for, the delay. Doggett at id
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19 S.W.3d 200 (2000)
STATE of Tennessee
v.
Sherman Winchester BLACKSTOCK.
Supreme Court of Tennessee, at Knoxville.
April 10, 2000.
*202 Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee (On Appeal); and Karla G. Gothard, Executive District Public Defender, Chattanooga, Tennessee (At Trial), for the appellant, Sherman Winchester Blackstock
Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Todd R. Kelley, Assistant Attorney General, Nashville, Tennessee (On Appeal); and Gary D. Gerbitz, District Attorney General, and Bates W. Bryan, Jr. and Rebecca J. Stern, Assistant District Attorneys General, Chattanooga, Tennessee (At Trial), for the appellee, State of Tennessee
*201 OPINION
Chief Justice ANDERSON delivered the opinion of the Court.
The defendant, who has an IQ of 55 and functions on the level of an eight to nine-year old child, was convicted by a jury for the aggravated sexual battery of a seven-year-old female. The Court of Criminal Appeals affirmed the trial court's findings that the defendant was competent to stand trial, that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights, that the trial court was without jurisdiction to order involuntary commitment and treatment as a mentally retarded offender, and that the defendant should not have been sentenced as an especially mitigated offender. The Tennessee Supreme Court granted the defendant's application for permission to appeal. Although the Court concluded that the evidence does not preponderate against the trial court's finding of competence, the Court found that the evidence does preponderate against the trial court's finding of a voluntary, knowing and intelligent waiver of Miranda rights, and further, that the trial court erred in failing to consider the petition for *203 involuntary care and treatment and in refusing to sentence the defendant as an especially mitigated offender. Accordingly, the Tennessee Supreme Court reversed and remanded for a new trial.
We granted this appeal from the defendant's conviction for aggravated sexual battery to review two principal issues: (1) whether the defendanta mentally retarded adult with a full scale IQ of 55was competent to stand trial, and (2) whether he voluntarily, knowingly, and intelligently waived his Miranda rights before making a statement to investigating officers. Other questions raised include whether the trial court committed error in concluding that it lacked the authority to grant the defendant's petition for involuntary commitment and treatment as a mentally retarded offender and whether it erred in denying the defendant's request for sentencing as an especially mitigated offender.
The Court of Criminal Appeals affirmed the defendant's conviction for aggravated sexual battery. It held that the evidence did not preponderate against the trial court's rulings, first that the defendant was competent to stand trial and second that he had waived his Miranda rights before making a statement to law enforcement officers. The appellate court further held that the trial court lost jurisdiction to order involuntary commitment after the defendant was in the Department of Correction's custody. Finally, the court held that the defendant did not qualify for an especially mitigated sentence because of the existence of the private trust enhancement factor.[1]
After our review of the record and applicable law, we conclude that the evidence is marginal but does not preponderate against the trial court's finding that the defendant was competent to stand trial. We further find, however, that the evidence does preponderate against the trial court's finding that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights before making a statement to officers. Moreover, we conclude that the trial court erred in concluding that it lacked the authority to order involuntary care and treatment and erred in refusing to sentence the defendant as an especially mitigated offender. The Court of Criminal Appeals' judgment is therefore reversed, and this case is remanded to the trial court.
BACKGROUND
The defendant, Sherman Winchester Blackstock, was indicted for the aggravated rape of a seven-year-old female. The following is a summary of the evidence at trial. The child testified that in August of 1992, she was in Blackstock's apartment when he laid her on a bed, removed her clothing, got on top of her, and penetrated her. She said that Blackstock said he would kill her if she told anyone what happened.
Deborah Earls, the child's mother, testified that she and her three daughters were staying with Blackstock free of charge off and on until they could find another place to live. Blackstock asked her to leave, and she left shortly before this incident. Earls testified that a friend told her that Blackstock had raped Earls' daughter. After talking to her daughter, Earls asked Blackstock if he had sex with her child. Blackstock initially appeared not to understand but then said "yes, what about it." She told Blackstock that she was calling the police. As to Blackstock's mental capacity, Earls testified that Blackstock shopped for groceries, cooked for himself and her family, and washed clothes on his own. Although Blackstock talked slowly, Earls could understand him and did not know he was mentally retarded.
After the police were called, Blackstock was questioned by Tara Pedigo, a detective for the child abuse unit of the Chattanooga Police Department. Pedigo testified that she read Blackstock his Miranda *204 rights and that he seemed to understand his rights before signing a written waiver. In response to Pedigo's questions, Blackstock said that the child removed her clothing herself. He said that he touched her "in her private" with his "dingaling," but that he did not penetrate her.
Blackstock testified in his own defense, stating that he was born in 1978 and was twenty-four years old.[2] His testimony revealed that he could not read or write, that he did not know the shape of a triangle, that he thought the American flag had only three stars, and that he could not count numbers in sequence beyond one through ten. He remembered being scared and nervous when talking to officers and recalled telling the officers that the child told him to take their clothes off and that she unzipped his pants. He denied that he raped the child and denied telling her not to tell anyone what happened.
A number of other witnesses testified as to Blackstock's mental limitations.[3]
Dennis Barwick, the program director at the Orange Grove Center, testified that Blackstock attended the vocational and educational training center for mentally retarded individuals from 1971 to 1982. The Center's records indicated that Blackstock suffers from an organic brain injury and a speech defect and that he sustained head injuries when struck by a car as a child. While Blackstock was attending the Orange Grove Center, testing showed his IQ to be 43 at age fourteen, 58 at age sixteen, and 57 at age twenty. Other evaluations indicated that his functioning was equivalent to a five to six-year-old child and that his social age was like that of a nine-year-old child.
Blackstock's conservator, Walter Grantham, an attorney, testified that he was appointed as conservator in 1991, replacing Blackstock's brother who had been removed for misusing funds. Blackstock's brother had been appointed as conservator in 1981 because of a doctor's certification of Blackstock's permanent mental retardation and inability to manage his own affairs. Grantham said that as conservator, he signed documents for Blackstock, paid his bills, and gave him food stamps and checks on a weekly basis. Grantham related that he treated Blackstock the way one treats a six or eight-year-old child. Lisa Smith, Grantham's secretary, testified that she saw Blackstock weekly and had to explain to him how to use the food stamps each time. Blackstock had a speech impediment and was hard to understand. In her view, Blackstock acted like an eight-year-old child and would not have known he did anything wrong until arrested by police.
Thomas Ford, a clinical psychologist associated with the Johnson Mental Health Center, a state institution, testified that he met with Blackstock three times before trial to determine his competency to stand trial and his mental state at the time of the offense. He determined that Blackstock has an IQ of 55, which was lower than ninety-eight to ninety-nine percent of the general population, and a speech impediment that made it hard to understand him. Although Ford did not give an adaptive functioning test to determine Blackstock's level of functioning, it was his opinion that Blackstock functioned at the level of an eight to nine-year-old child. According to Ford, Blackstock had a difficult time relating information about his life. Ford testified that Blackstock seemed to understand that he had been charged with a serious offense; he told Ford that he did not commit the offense and that he believed his attorney would do a good job. Based on his evaluations, Ford concluded that Blackstock was competent to stand trial and was legally sane at the time of the offense.
*205 Finally, Wanda and Anthony Pasley testified that at the time of the trial, Blackstock had been living with them for approximately six months. Both testified that Blackstock cannot cook, but is able to do yard work and clean the house. Wanda Pasley testified that Blackstock acts like a four or five-year-old child and had to be reminded to bathe regularly. She cashes Blackstock's checks.
The jury found Blackstock guilty of the lesser offense of aggravated sexual battery. The Court of Criminal Appeals affirmed the conviction and sentence. We granted this appeal.
COMPETENCY TO STAND TRIAL
The Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Berndt v. State, 733 S.W.2d 119 (Tenn.Crim.App.1987). The standard for determining competency to stand trial is whether the accused has "the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense." State v. Black, 815 S.W.2d 166, 174 (Tenn.1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn.Crim.App.1975)); see also Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (ability to consult with lawyer and a "rational as well as factual understanding of the proceedings").
Before trial, the public defender filed a petition for a psychiatric evaluation seeking to have Blackstock evaluated both for mental competence to stand trial and his mental state at the time of the offense. The trial court directed that the evaluations be conducted by the Johnson Mental Health Center, a state institution. A report to the trial court dated March 31, 1993, stated the following:
After completion of the evaluation, we have concluded that [Blackstock's] condition is such that he is capable of defending himself in a court of law. In making this determination, we found that he understands the nature of the legal process; that he understands the charges pending against him and the consequences that can follow; and he can advise his counsel and participate in his own defense.
No other expert examined the defendant. No evidentiary hearing on the question of competency was held; thus, lay proof as to Blackstock's mental limitations was not heard prior to trial.
Analysis
On appeal, Blackstock contends that the trial court erred in determining that he was competent to stand trial. He points to evidence of his mental retardation, his IQ of 55, and testimony from several witnesses that he functions on the level of a four to nine-year-old child. Blackstock further argues that the testimony regarding his limited life skills, comprehension, and functioning indicates that he lacked both the capacity to understand the proceedings against him and the ability to assist in his defense. Although Blackstock did not seek or request an evidentiary hearing on mental competency before trial, he asserts that the trial court had a duty to conduct a hearing sua sponte. See Berndt, 733 S.W.2d at 122.
Blackstock contends that State v. Benton, 759 S.W.2d 427 (Tenn.Crim.App.1988), is a similar case with the opposite result. In Benton, the evidence at a competency hearing revealed that the defendant, age forty-three, was unable to respond to questions asked by a psychological examiner and that he did not know why he had been arrested or why he was being evaluated. The defendant's skills in areas such as communication and coping ability were measured at an age level of four to six years. The defendant had received no education, did not know his childhood history, could not relate the date, month or year, and did not know how to read, write *206 or count. The defendant's lifestyle was extremely limited and required intense supervision. A psychiatrist testified that the defendant had moderate mental retardation, with an IQ of 47. The psychiatrist and a psychiatric social worker both opined that the defendant did not understand the proceedings against him and lacked the ability to assist in his defense. A different panel of the Court of Criminal Appeals held that the evidence preponderated against the trial court's finding of competence.
The present case is different in that there was only one mental health expert who found the defendant competent and no other proof of any kind. The trial court reviewed a report from the Johnson Mental Health Center finding that Blackstock was competent to stand trial. There was no cross-examination or other testimony regarding the Johnson Mental Health Center's findings. Blackstock did not seek a competency hearing, nor did he produce any expert or lay evidence indicating that he lacked the capacity to understand the proceedings against him and to assist his attorney in his defense. In contrast, an evidentiary hearing was held in Benton, and every expert who testified opined that the defendant was mentally incompetent to stand trial. The evidence introduced at the suppression hearing also indicated that Blackstock's IQ and level of functioning were slightly higher than those of the defendant in Benton.
We observe that the issue is close, but we conclude that Blackstock was marginally competent based on the evidence produced and that the evidence does not preponderate against the trial court's determination that Blackstock was competent to be tried. The trial court was entitled to rely upon the results of the psychiatric evaluation, which indicated that Blackstock had the capacity to understand the proceedings against him and to assist in his defense. Moreover, given the single expert's findings and the failure of the defense to request a hearing or to produce evidence of incompetency, we cannot conclude that the trial court erred in failing to conduct a competency hearing sua sponte. See Berndt, 733 S.W.2d at 122 ("[a]ppellate court may only consider those facts which were before the court when the trial commenced. . . .").
SUPPRESSION OF STATEMENTS
We now turn to the issue of whether Blackstock voluntarily, knowingly, and intelligently waived his Miranda rights before being interrogated by Detective Pedigo.
Detective Tara Pedigo testified that she questioned Blackstock in her office in the presence of the arresting officer and a Department of Human Services employee. Pedigo said that she read the Miranda rights to Blackstock before questioning him. She said that she explained each right in plain language and that she believed Blackstock understood he was waiving his rights by signing a waiver form. Pedigo testified that Blackstock told her that he could read and write and had attended school through the eleventh grade. When Pedigo asked if Blackstock "understood everything [she] had said," Blackstock responded, "I only did it once, and I won't do it anymore."
Pedigo conceded that she took no notes and made no recording of her advice to Blackstock about his Miranda rights or his responses. She conceded that she did not define or explain the terms "lawyer," "court," or "appointed," and she acknowledged that Blackstock misspelled his own last name on the waiver of rights form. Pedigo agreed that Blackstock's grammar and language ability was poor. She was not aware that Blackstock had attended special education programs, that he had suffered a severe head injury as a child, or that he had an appointed conservator because of his mental retardation and inability to manage his own affairs. Pedigo testified that Blackstock's speech, which was slurred and difficult to understand, became *207 worse during the portion of the interview that was recorded, and that she had to stop the interview several times to ask Blackstock to speak more clearly.
Blackstock's conservator, Walter Grantham, was appointed conservator for Blackstock in 1991, replacing Blackstock's brother who had been appointed in 1981 after doctors certified that Blackstock was permanently mentally retarded and unable to manage his affairs. Grantham's responsibilities include managing Blackstock's financial affairs, signing documents, and giving Blackstock a weekly check for fifteen to twenty-five dollars and food stamps. Grantham testified that Blackstock functioned at a low level and was easily influenced and led by others. Grantham said that Blackstock was able to print his name in a "primitive" fashion but could not otherwise read or write. It was Grantham's opinion that Blackstock lacked the ability to read or understand Miranda rights and could not comprehend a waiver of such rights. Grantham stated that Blackstock viewed him as a source for money and food stamps and did not understand that Grantham was an attorney. As a result, Blackstock did not try to call Grantham or anyone else for help when arrested and remained in custody for two weeks despite having the financial resources to post bail. It was not until Grantham tried to locate Blackstock that Grantham became aware of the charges and posted bail so that Blackstock could be released from jail pending trial.
Dennis Barwick, the program director at the Orange Grove Mental Health Center, testified that Blackstock was a patient from 1971 to 1982. Blackstock, who was classified as mildly mentally retarded, participated in a training program as a dishwasher under direct supervision. According to Barwick, tests administered in 1980 indicated that Blackstock's IQ was 57 and his level of functioning as measured by a Bender Visual-Motor Gestalt test was equivalent to that of a six-year-old child. Barwick also testified that Blackstock could not read or write.
The trial court found that Blackstock had a "mental impairment," but further found that Pedigo read the Miranda rights to Blackstock and that the recorded interview indicated that Blackstock made "a voluntary waiver, because it does seem that he is cooperating and he is telling what he knows about what happened." The Court of Criminal Appeals affirmed.
Analysis
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The related provision in the Tennessee Constitution states that "in all criminal prosecutions, the accused. . . shall not be compelled to give evidence against himself." Tenn. Const. art. I, § 9. In short, a defendant's right against compelled self-incrimination is protected by both the federal and state constitutions. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.1994).
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." The procedural safeguards must include warnings prior to any custodial questioning that an accused has the right to remain silent, that any statement he makes may be used against him, and that he has the right to an attorney. Id.
The rights protected in Miranda may be waived by an accused "provided the waiver is made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. As we have explained:
*208 The relinquishment of the right must be voluntary in the sense that it is the product of a free and deliberate choice rather than the product of intimidation, coercion or deception. Moreover, the waiver must be made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Stephenson, 878 S.W.2d at 544-45 (emphasis added). Accordingly, the totality of the circumstances must reveal "an uncoerced choice and the required level of comprehension before a court can properly conclude that Miranda rights have been waived." Id. at 545; see also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986).
The effect of an accused's mental deficiencies or retardation on the validity of his decision to waive Miranda rights has been considered in numerous cases. Charles C. Marvel, Annotation, Mental Subnormality of Accused as Affecting Voluntariness or Admissibility of Confession, 8 A.L.R.4th 16 (1981 & Supp.1999). Mentally retarded individuals present additional challenges for the courts because they may be less likely to understand the implications of a waiver. United States v. Murgas, 967 F.Supp. 695, 706 (N.D.N.Y.1997). As one commentator has suggested, the mentally retarded are "less likely to understand their Miranda rights and the consequences of waiving them, giving rise to concerns about the knowing intelligence of their waivers." Paul T. Hourihan, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 Va. L.Rev. 1471, 1492 (1995).
Although there is likely to be a level of deficiency so great that it renders a defendant unable to make a knowing and intelligent waiver, nearly every court to consider the issue has held that mental impairments or mental retardation are factors that must be considered along with the totality of the circumstances. As one court has said, "no single factor, such as IQ, is necessarily determinative in deciding whether a person was capable of knowingly and intelligently waiving, and do [sic] so waive, the constitutional rights embraced in the Miranda rubric." Fairchild v. Lockhart, 744 F.Supp. 1429, 1453 (E.D.Ark.1989). Among the circumstances courts have considered are the defendant's age, background, level of functioning, reading and writing skills, prior experience with the criminal justice system, demeanor, responsiveness to questioning, possible malingering, and the manner, detail, and language in which the Miranda rights are explained. As a result, courts tend to reach results that are somewhat fact-specific.[4]
The circumstances in this case are as follows. On one hand, Blackstock was found competent to stand trial by the Johnson Mental Health Center, a determination which encompassed a finding that he had the capacity to understand the proceedings against him. Detective Pedigo testified that she explained the Miranda rights individually; although she claimed to read the rights to Blackstock in *209 "clear" language, she conceded that she did not ask Blackstock whether he knew the definition of such terms as "lawyer," "court," or "appointed." Pedigo was of the opinion that Blackstock appeared to understand his rights, but she was not aware that he was mentally retarded or that a conservator had been appointed because of his inability to manage his affairs. During the interview, Blackstock was responsive to questions, but Pedigo conceded that his speech and communication worsened and that he was frequently difficult to understand. She on several occasions instructed Blackstock to speak more clearly, even reminding him that he had spoken more clearly before the tape recorder had been turned on. Pedigo conceded that the arresting officer and a Department of Human Services employee were present at the interview and that no one was present to assist in communicating with Blackstock. Pedigo also agreed that Blackstock did not know his social security number and that he misspelled his own last name on the waiver of rights form.
In addition, the evidence overwhelmingly demonstrated that Blackstock was mentally retarded and functioned on a level equivalent to a child from six to nine years of age. The evidence also showed that he could not read or write. Blackstock's conservator, Walter Grantham, testified that he treated Blackstock like a six or eight-year-old child, and in Grantham's opinion, Blackstock lacked the capacity to understand his constitutional rights. Dennis Barwick, the program director at the Orange Grove Mental Health Center, testified that Blackstock functioned at the level of a six-year-old child. Indeed, if Blackstock had the ability to meaningfully understand his rights, it is difficult to explain why he remained in jail for two weeks without making bond when his conservator was an attorney, and he had the funds to post bail.
In our view, the evidence preponderates against the trial court's determinations. For example, the trial court observed that Blackstock had a "mental impairment" and that he functioned "somewhat" at a lower level than other individuals. The evidence demonstrated, however, that Blackstock was mentally retarded, had an IQ of 55, and significantly impaired functioning equivalent to a child from six to nine years of age. Moreover, we note that the trial court stressed that "there's nothing to show that he did not understand what a lawyer was at that time, or that he didn't understand the fact that he had a right to representation by an attorney or lawyer or counsel or someone there to speak on his behalf." This effectively reversed the proper standard, which requires a showing that Blackstock had a meaningful awareness of his Miranda rights, as well as the consequences of waiving his rights. Stephenson, 878 S.W.2d at 544-45.
Accordingly, we conclude that the evidence in the record preponderates against the trial court's determination that Blackstock voluntarily, knowingly and intelligently waived the rights protected by the Fifth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. The lower courts therefore erred in failing to suppress the statement.
INVOLUNTARY CARE AND TREATMENT
Prior to sentencing, Blackstock filed a petition for involuntary care and treatment as a mentally retarded offender pursuant to Tenn.Code Ann. § 33-5-301, et seq. (1984 & Supp.1999). The trial court denied the petition because it had not been filed prior to trial and instead sentenced Blackstock to serve eight years in the Department of Correction.
The State maintains that the trial court properly determined that its authority to order commitment exists only before trial because the language of Tenn.Code Ann. § 33-5-305(a)(1)(B) (Supp.1999) is predicated upon findings related to a defendant's *210 competency to stand trial and also because the Department of Correction has its own authority to initiate proceedings for transferring an inmate to an appropriate facility for mentally retarded offenders. Tenn.Code Ann. § 33-3-402 (Supp.1999). Blackstock argues, however, and the Court of Criminal Appeals agreed, that the trial court's authority exists before and after conviction because the definition of "mentally retarded offender" specifies he or she may be "a defendant at any stage in the criminal or juvenile justice system." Tenn.Code Ann. § 33-5-303(1) (1984) (emphasis added).
Analysis
We begin our review of this issue with Tenn.Code Ann. § 33-5-303(1), which governs "mentally retarded offenders." A "mentally retarded offender" means a person with "significantly sub-average general intellectual functioning which originates during the developmental period and is associated with an impairment of adaptive behavior, who is a defendant at any stage in the criminal or juvenile justice system." Tenn.Code Ann. § 33-5-303(1) (emphasis added).
The procedures for requesting involuntary commitment are set forth in Tenn.Code Ann. § 33-5-305. The statute provides in part that if "a circuit, criminal, or general sessions court determines on the basis of an evaluation under § 33-7-301(a) either that a criminal defendant is incompetent to stand trial due to mental retardation or, with the agreement of defense counsel, that the defendant is competent to stand trial but that failure to provide a secure facility would create a likelihood to cause the defendant serious harm by reason of mental retardation" then the district attorney general or defense counsel "may file a complaint to require involuntary care and treatment of the mentally retarded person. . . ." Tenn.Code Ann. § 33-5-305(a)(1)(B), (a)(2).
A person may be "judicially committed to involuntary care and treatment," if the following are found: 1) the person is mentally retarded; 2) the person poses a substantial likelihood of serious harm as defined in § 33-6-104(c) because of the mental retardation; 3) the person needs care, training, or treatment because of the mental retardation; and 4) all available less drastic alternatives to judicial commitment are unsuitable to meet the needs of the person. Tenn.Code Ann. § 33-5-305(b).
An elementary principle of statutory construction requires that we ascertain and give effect to the legislature's intent without unduly restricting or expanding a statute's coverage beyond its intended scope. State v. Pettus, 986 S.W.2d 540, 544 (Tenn.1999). The legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning of the statutory language, without a forced or subtle interpretation that would limit or extend the statute's application. Id.
Statutes relating to the same subject or sharing common purpose shall be read and construed together ("in pari materia") in order to advance their common purpose or intent. Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn.1997). Our goal and function "is to adopt a reasonable construction which avoids statutory conflict and provides for harmonious operation of the laws." Id.; see also Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995).
Applying these principles of statutory construction, we note that the definition of "mentally retarded offender" specifically states that it applies to a defendant "at any stage in the criminal or juvenile justice system." Tenn.Code Ann. § 33-5-303(1). The plain language does not limit its application to defendants who have not been tried as the trial court concluded, but rather, extends throughout the process and includes sentencing. Although the procedures refer to the initial competency determination, it is illogical to *211 infer that they apply only before trial. The statute authorizes "programs, especially community-based programs, for training, habilitating, or rehabilitating persons who are mentally retarded public offenders or delinquents under this part." Tenn.Code Ann. § 33-5-301 (1984). The legislative purpose is therefore to identify mentally retarded individuals in the criminal justice system and to provide alternatives to incarceration for those who require care, rehabilitation, and treatment. An interpretation that would limit the procedures to pretrial proceedings is inconsistent with this purpose.[5]
Moreover, as both lower courts observed, there is statutory authority for the director of a department of correction institution to transfer mentally retarded inmates to an appropriate treatment facility. Tenn.Code Ann. § 33-3-402 (Supp.1999). If the State's argument were adopted, the statutes would allow commitment to be a viable consideration only before trial and after a defendant is physically transferred to the custody of the Department of Correction. This would render the commitment proceedings unavailable during a large portion of the proceedingsfrom trial, sentencing, post-trial proceedings, and potentially the appellate process. Again, this is inconsistent with the definition of "mentally retarded offender" and would frustrate the legislative purpose.
The Court of Criminal Appeals reached this same conclusion, yet concluded that Blackstock was not entitled to relief because the trial court lost jurisdiction over the sentence after Blackstock was physically transferred to the Department of Correction. While it is true that a trial court loses jurisdiction over the sentence after a defendant is in the custody of the Department of Correction pursuant to Tenn.Code Ann. § 40-35-212(d) (1997), this section does not prevent a reversal of the sentence and a remand for a new sentencing proceeding.
We have interpreted these statutory provisions in a manner that is consistent with the legislative intent and purpose and provides for the overall harmonious operation of the laws, and we therefore conclude that the trial court erred in refusing to consider Blackstock's petition for involuntary care and treatment as a mentally retarded offender.
ESPECIALLY MITIGATED OFFENDER
Blackstock contends that the trial court erred in failing to impose a sentence as an especially mitigated offender. A court has the discretion to sentence a defendant as an especially mitigated offender if (1) he has no prior felony convictions and (2) the court finds mitigating but no enhancing factors in the record. Tenn.Code Ann. § 40-35-109(a)(1)-(2) (1997). If a court finds a defendant to be an especially mitigated offender, the court shall reduce the Range I minimum sentence by ten percent, reduce the release eligibility by twenty percent, or both. Tenn.Code Ann. § 40-35-109(b).
The trial court found that Blackstock had no prior felony convictions and that several mitigating factors were present, i.e., Blackstock's mental condition reduced his culpability and made it unlikely that he had a sustained intent to violate the law. Tenn.Code Ann. § 40-35-113(8), (11) (1997). The trial court denied especially mitigated sentencing, however, on the basis that an enhancement factorthat the victim was particularly vulnerable because of age or physical or mental limitationswas present in the record. See Tenn.Code Ann. § 40-35-114(4) (1997). The trial court instead sentenced Blackstock as a Range I, standard offender to the minimum of eight years in the Department of *212 Correction. Tenn.Code Ann. § 40-35-112(a)(2) (1997).
The Court of Criminal Appeals correctly held that the trial court erred in finding the particular vulnerability enhancement factor because vulnerability cannot be presumed solely from the age of the victim and because there was no evidence that the victim was unable to resist, summon help, or testify at a later date. See State v. Adams, 864 S.W.2d 31, 35 (Tenn.1993). The Court of Criminal Appeals nonetheless upheld the sentence after finding in the course of its de novo review that another enhancement factorthat the defendant abused a position of private trustwas established by the evidence. Tenn.Code Ann. § 40-35-114(15). We disagree.
Analysis
In State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996), we held that the application of the abuse of trust factor requires a finding that a defendant occupied a position of trust, either public or private, and that the position of trust occupied was abused by the commission of the offense. We further explained:
The determination of the existence of a position of trust does not depend on the length or formality of the relationship, but upon the nature of the relationship. Thus, the court should look to see whether the offender formally or informally stood in a relationship to the victim that promoted confidence, reliability, or faith.
Id. (emphasis added). Although we stressed that the "fact that an offender is older than the victim or that the offender is an adult and the victim is a child is insufficient without more to establish a position of trust," id. at 489, we have recently clarified that where "the adult perpetrator and minor victim are members of the same household, the adult occupies a position of `presumptive private trust' with respect to the minor." State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn.1999); State v. Carico, 968 S.W.2d 280, 286 (Tenn.1998).
In the present case, the Court of Criminal Appeals concluded that Blackstock, through his relationship with the victim's mother and the victim, occupied a position that promoted the victim's confidence, reliability and faith in him, "such as would motivate her to approach and enter his apartment without fear." We initially note that the child and her family were no longer living in the same residence with Blackstock at the time of this offense. More importantly, we believe the Court of Criminal Appeals failed to take into account Blackstock's mental impairment as it related to the nature of the relationship between the child and him and whether the enhancement factor is applicable to these unique facts. Blackstock was mentally retarded with an IQ of 55. His functioning level was no greater than a child of nine years of agehardly older than the victim. In these unique circumstances, we hold that the evidence is insufficient to apply this enhancement factor.
Accordingly, we find that no enhancement factors were proven to exist. Moreover, given the presence of Blackstock's mental limitations and low functioning as substantial mitigating factors, we find that the trial court erred in refusing to sentence Blackstock as an especially mitigated offender.
CONCLUSION
In summary, we have concluded that the evidence does not preponderate against the trial court's finding that Blackstock was competent to stand trial but does preponderate against the trial court's determination that Blackstock voluntarily, knowingly and intelligently waived his Miranda rights before giving a statement. We have further concluded that the trial court erred in failing to consider Blackstock's petition for involuntary care and treatment as a mentally retarded offender and in refusing to sentence Blackstock as an especially mitigated offender. As a result, the conviction and sentences are reversed, and *213 this case is remanded to the trial court for a new trial.
Having decided the legal issues, we have great concern about the judicial process in this case. This defendant was arrested in August of 1992, indicted in November of 1992, tried in June of 1993, and sentenced in September of 1993 to serve eight years in the Department of Correction. An appeal to the Court of Criminal Appeals was taken by notice of appeal filed on January 13, 1994. The case thereafter languished in the Court of Criminal Appeals for a period of almost four years until the release of an opinion in December of 1997. An appeal was sought in this Court in 1998. Disposition was again delayed by extensions sought by counsel for the State and by counsel for the defense.
Accordingly, this case stagnated in the appellate system for an unreasonable period of time, during which Blackstock was serving his sentence. In fact, counsel advised this Court at oral argument that Blackstock has now served his entire sentence. As a result of these appellate delays, a mentally retarded individual was tried, convicted, and incarcerated in the Department of Correction for his entire sentence without timely appellate review of significant issues. We have reversed the conviction and sentence, and the remedy is a new trial and sentencing. In this case, however, where the defendant has served his entire sentence, the prospect of a new trial is of dubious practical value and unlikely to be in the interest of the defendant, the victim, or the public as a whole. In short, the criminal justice system has failed in this case, and justice delayed has been justice denied. To avoid such failures in the future, all courts must adopt and enforce rules and procedures which control and manage dockets to avoid unreasonable delay which saps public trust and confidence in the courts.
The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the trial court. Costs of appeal shall be paid by the State.
NOTES
[1] Tenn.Code Ann. § 40-35-114(15) (1997).
[2] The presentence report indicates that Blackstock was born in 1959 and was thirty-three years old at the time of trial.
[3] Blackstock attempted to establish a defense of insanity.
[4] In the following cases, waivers were found to be valid. United States v. Macklin, 900 F.2d 948 (6th Cir.1990) (defendant had IQ of 59; co-defendant's IQ was 70); Moore v. Dugger, 856 F.2d 129 (11th Cir.1988) (defendant had IQ of 62 and functioned on the level of eleven-year-old child); Reddix v. Thigpen, 805 F.2d 506 (5th Cir.1986) (mentally retarded defendant); De La Rosa v. Texas, 743 F.2d 299 (5th Cir.1984) (borderline retarded defendant); Harris v. Riddle, 551 F.2d 936 (4th Cir.1977) (IQ of 67; sixth grade intelligence); United States v. Young, 529 F.2d 193 (4th Cir.1975) (below average IQ; limited education and reading ability); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990) (IQ between 56 and 70; third grade functioning); State v. Brooks, 648 So.2d 366 (La.1995) (mildly retarded, but functional); State v. Cook, 175 W.Va. 185, 332 S.E.2d 147 (1985) (moderate mental retardation). Conversely, in the following cases, statements were suppressed. Henry v. Dees, 658 F.2d 406 (5th Cir.1981) (IQ between 65 and 69; sixth grade level of education); Cooper v. Griffin, 455 F.2d 1142 (5th Cir.1972) (defendants with IQs between 61 and 67; low functioning); State v. Flower, 224 N.J.Super. 208, 539 A.2d 1284 (Law Div.1987) (IQ less than 70; mental age equivalency of seven to twelve-year-old child).
[5] Such a limited interpretation is also inconsistent with statutory provisions allowing credit for time spent in the custody of the Department of Mental Health and Mental Retardation when the person receives evaluation, training or treatment "in connection with a criminal charge or conviction." Tenn.Code Ann. § 33-5-306 (1984).
|
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|
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2007*
Decided January 9, 2008
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3542
JAMES HOSKINS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 03-C-0334
CITY OF MILWAUKEE, et al.,
Defendants-Appellees. Charles N. Clevert, Jr.,
Judge.
ORDER
James Hoskins sued the City of Milwaukee and four of its police officers
(collectively “the City”) under 42 U.S.C. § 1983 claiming that they violated various
constitutional provisions when they arrested him while investigating a domestic
violence call by his then girlfriend, Theresa Turner. The district court granted
summary judgment for the City, and we affirm.
On appeal Hoskins first contends that he was prejudiced in responding to the
motion for summary judgment because the City improperly withheld discovery
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See FED. R. APP. P. 34(a)(2).
No. 06-3542 Page 2
materials. See FED. R. CIV. P. 56(f). Curiously, the district court accepted Hoskins’s
assertion that Officers Clark and Phillips did not answer his interrogatories and the
City concedes the point on appeal. We say curiously because our review of the
record shows that Officer Clark did timely answer Hoskins’s interrogatories. In
any event, we may not address this argument on appeal because Hoskins never
raised it in the district court. Omega Healthcare Investors, Inc. v. Res-Care, Inc.,
475 F.3d 853, 858-59 (7th Cir. 2007). Even if he had properly raised the argument,
the district court would have been correct to deny any request for further discovery
because Hoskins never explained what extra information he hoped to obtain from
the interrogatory answers he sought or why not having that information actually
prejudiced him. See Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005).
The only discovery issue available for review is the district court’s denial of
Hoskins’s motion for sanctions against the defendants who he claimed had not
answered his interrogatories. The district court refused to impose sanctions,
finding that any answers by Officers Clark and Phillips would be irrelevant because
the undisputed evidence showed that they were not involved in the investigation or
arrest of Hoskins. Because we agree with that analysis, the district court’s refusal
to order sanctions was not an abuse of discretion. Muzikowski v. Paramount
Pictures Corp., 477 F.3d 899, 908-09 (7th Cir. 2007).
The remainder of Hoskins’s brief presents a rehashing of his understanding
of the facts surrounding his constitutional claims interspersed with citations to a
few cases that are marginally relevant. Mindful of our duty to liberally construe
pro se filings, see McCready v. eBay, Inc., 453 F.3d 882, 890 (7th Cir. 2006), we read
Hoskins’s brief as contesting the district court’s legal conclusions under the Fourth
Amendment and the Equal Protection Clause. Our de novo review of the district
court’s legal conclusions, Belcher v. Norton, 497 F.3d 742, 747 (7th Cir. 2007),
however, does not reveal any error.
We understand Hoskins’s challenge to the district court’s Fourth Amendment
holding to be that because Turner’s statements to the police accusing him of
attacking her were untrue, the police lacked probable cause to arrest him. But he
does not dispute that Turner made those statements to the police or that her body
showed evidence of a physical altercation. Thus, the district court was correct that
there was no factual dispute about whether the police had probable cause to arrest
Hoskins. See Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000) (“[W]e
have consistently held that an identification or a report from a single, credible
victim or eyewitness can provide the basis for probable cause.”).
Hoskins’s claim of gender discrimination under the Equal
Protection Clause also fails because he has not identified a similarly situated
female who was treated differently. See Sides v. City of Champaign, 496 F.3d 820,
No. 06-3542 Page 3
827 (7th Cir. 2007). Turner is the closest such individual, but she is hardly
similarly situated. She called the police, cooperated with them, told them Hoskins
struck her, and admitted that she scratched him in self-defense. Hoskins was
uncooperative and did not allege that Turner was the aggressor until after his
arrest. Cf. id. Thus, the district court correctly concluded that no defendant
violated the Equal Protection Clause during the investigation and arrest of
Hoskins.
AFFIRMED.
|
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|
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0754n.06
No. 12-3177 FILED
Aug 14, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
ELVIN MALDONADO-REYES, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: WHITE and DONALD, Circuit Judges; VARLAN, District Judge.*
PER CURIAM. Elvin Maldonado-Reyes petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ) decision denying
his request for a continuance and entering an order of removal. We deny the petition for review.
Maldonado-Reyes, a native and citizen of Honduras, entered the United States by illegally
crossing the Arizona border in 2002, “more or less.” (A.R. 57–58). On May 31, 2007, officers with
the Department of Homeland Security (DHS) encountered Maldonado-Reyes while searching for a
fugitive and served him with a notice to appear, charging him with removability under Section
212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an
*
The Honorable Thomas A. Varlan, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 12-3177
Maldonado-Reyes v. Holder
alien who is present in the United States without being admitted or paroled or arrives in the United
States at any time or place other than as designated by the Attorney General. (A.R. 75–76, 78).
Maldonado-Reyes initially appeared before an IJ on October 4, 2007. (A.R. 49–53).
Maldonado-Reyes requested and received a continuance until March 19, 2008, to obtain counsel.
(A.R. 52). The IJ advised Maldonado-Reyes that he would not be given an additional period of time
to obtain counsel after that date and that “you need to make sure you have your lawyer by the time
you come back to Court in March.” (A.R. 52–53).
Maldonado-Reyes appeared without counsel at his removal hearing on March 19, 2008.
(A.R. 55–56). Maldonado-Reyes explained that his boss had retained counsel, who “was supposed
to be here today,” and stated that his boss told him to request an extension of time. (A.R. 56).
Maldonado-Reyes did not know the attorney’s name “because my boss is the person who’s got him
for me.” (A.R. 56). Without the attorney’s name, the IJ declined to grant a further extension, noting
that Maldonado-Reyes was served with the notice to appear in May and thus had approximately ten
months to obtain counsel. (A.R. 56). Maldonado-Reyes renewed his request for an extension “so
I can look for a lawyer on my own behalf.” (A.R. 56–57). The IJ denied his request and proceeded
with the hearing. (A.R. 56–57). After questioning Maldonado-Reyes, the IJ found by clear and
convincing evidence that he was removable as charged. (A.R. 57–58). The IJ then inquired into
Maldonado-Reyes’s possible eligibility for relief from removal, asking if he had any particular fears
about returning to Honduras. (A.R. 60). Maldonado-Reyes responded that his mother and aunt were
run over by cars, that his sister was run over by a motorcycle but survived, and that his brother’s
shop was set on fire, the cause unknown. (A.R. 60). Based on Maldonado-Reyes’s response, the
-2-
No. 12-3177
Maldonado-Reyes v. Holder
IJ concluded that he had no apparent eligiblity for relief other than voluntary departure. (A.R. 61).
Maldonado-Reyes again requested an extension, this time based on his medical condition, which the
IJ denied because his medical condition did not provide a basis for remaining in the United States.
(A.R. 61–62). Maldonado-Reyes next raised his family’s problems in Honduras as grounds for an
extension; the IJ rejected his request, stating that “people getting run over . . . by cars, that happens
in the United States every day of the year.” (A.R. 62). The IJ subsequently denied voluntary
departure and ordered Maldonado-Reyes’s removal to Honduras. (A.R. 62–65).
In his appeal to the BIA, Maldonado-Reyes asserted that the IJ erred in: (1) denying his
request for a continuance to obtain counsel; (2) failing to provide him with an opportunity to apply
for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) after
he expressed a fear of returning to Honduras, in violation of 8 C.F.R. § 1240.11(c)(1); (3) denying
him voluntary departure; and (4) failing to issue a separate oral or written decision. (A.R. 20–30).
The BIA remanded the case to the IJ for a decision addressing all legal issues and providing a
rationale. (A.R. 11). The IJ issued a written decision and certified the case to the BIA for
adjudication of the previously-filed appeal. (A.R. 5–7). The BIA dismissed Maldonado-Reyes’s
appeal, concluding that he failed to demonstrate that he was denied a full and fair hearing before the
IJ. (A.R. 3–4). The BIA held that, because Maldonado-Reyes was informed of his right to obtain
counsel and was given an opportunity to do so, the IJ did not violate his due process rights in
denying his request for a continuance; that Maldonado-Reyes failed to demonstrate prima facie
eligibility for any form of relief from removal; and that he failed to establish eligibility for voluntary
departure. (A.R. 3–4).
-3-
No. 12-3177
Maldonado-Reyes v. Holder
This timely petition for review followed. Where, as here, “the BIA reviews the immigration
judge’s decision and issues a separate opinion, rather than summarily affirming the immigration
judge’s decision, we review the BIA’s decision as the final agency determination.” Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009).
Maldonado-Reyes challenges the denial of his request for a continuance. “We review the
BIA’s affirmance of the IJ’s denial of petitioner’s motion for continuance under an abuse-of-
discretion standard.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). “An abuse of
discretion occurs if ‘the denial . . . was made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis such as invidious discrimination.’”
Id. (omission in original) (quoting Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006)).
The IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29.
“Finding ‘good cause’ is crucial since a continuance, in effect, allows an alien to remain in the
United States for a period of time without any defined legal immigration status.” Ukpabi v.
Mukasey, 525 F.3d 403, 407–08 (6th Cir. 2008). Here, the IJ provided Maldonado-Reyes with a
five-month continuance to obtain counsel. When Maldonado-Reyes appeared without counsel and
requested a further extension of time, he claimed that his boss had retained counsel for him, but
counsel had not entered an appearance and Maldonado-Reyes did not know the attorney’s name and
could not explain why the attorney was not present for the removal hearing. Under the
circumstances, the BIA did not abuse its discretion in affirming the IJ’s denial of Maldonado-Reyes’s
request for a further continuance. See Ramirez-Chacon v. Holder, 397 F. App’x 179, 184–85 (6th
Cir. 2010) (holding that the IJ did not abuse his discretion in denying request for further continuance
-4-
No. 12-3177
Maldonado-Reyes v. Holder
where the IJ granted previous request); Al-Najar v. Mukasey, 515 F.3d 708, 717 (6th Cir. 2008)
(holding that, where the IJ had previously granted continuance requests, “this reason alone is a
sufficient basis to affirm the IJ”).
Maldonado-Reyes additionally argues that the IJ failed to take his medical condition into
account in denying his request for a continuance. To the contrary, the IJ expressly considered
Maldonado-Reyes’s request for an extension based on his medical condition and denied that request
because the medical condition did not provide a basis for remaining in the United States. (A.R.
61–62). Maldonado-Reyes further contends that the denial of a continuance amounted to a
deprivation of his right to counsel, violating his due process rights. The denial of a continuance is
discretionary and therefore cannot form the basis for a due process claim. Abu-Khaliel, 436 F.3d at
635. Regardless, Maldonado-Reyes cannot demonstrate prejudice, as discussed below. See Gishta
v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005) (holding that an alien raising a due process challenge
to removal proceedings must show error and substantial prejudice).
Maldonado-Reyes also asserts that the IJ violated 8 C.F.R. § 1240.11(c)(1) by failing to
advise him of his right to apply for asylum or withholding of removal and provide him with the
appropriate application form. We review questions of law de novo, “but substantial deference is
given to the BIA’s interpretations of the INA and accompanying regulations.” Khalili, 557 F.3d at
435. Under 8 C.F.R. § 1240.11(c)(1), if an “alien expresses fear of persecution or harm upon return
to any of the countries to which the alien might be removed . . . , the immigration judge shall:
(i) [a]dvise the alien that he or she may apply for asylum in the United States or withholding of
removal to those countries; [and] (ii) [m]ake available the appropriate application forms.” 8 C.F.R.
-5-
No. 12-3177
Maldonado-Reyes v. Holder
§ 1240.11(c)(1)(I)–(ii). We have required a petitioner claiming a violation of 8 C.F.R.
§ 1240.11(c)(1) to demonstrate prejudice—“that the immigration judge’s failure to advise him of his
statutory rights led to a substantially different outcome from that which would have occurred in the
absence of the violation.” Dominguez-Gonzalez v. Holder, 381 F. App’x 511, 515 (6th Cir. 2010)
(internal quotation marks and brackets omitted).
In this case, to establish prejudice Maldonado-Reyes “would need to show that he has alleged
. . . sufficient factual allegations to support the conclusion that he is eligible for asylum, withholding
of removal, or relief under the Convention Against Torture.” Id. He has not done so. Maldonado-
Reyes asserted that his mother, aunt, and sister were run over by vehicles and that his brother’s shop
was set on fire; however, he does not assert that these events are somehow linked to persecution
based on a protected ground. (A.R. 60). Maldonado-Reyes’s allegations fail to demonstrate
prejudice from the IJ’s alleged error. See Dominguez-Gonzalez, 381 F. App’x at 515–17.
For the foregoing reasons, we deny Maldonado-Reyes’s petition for review.
-6-
|
{
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|
77 F.3d 474
U.S.v.McKnight
NO. 95-20238
United States Court of Appeals,Fifth Circuit.
Dec 19, 1995
Appeal From: S.D.Tex., No. CR-H-90-129
AFFIRMED
|
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}
|
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