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729 F.2d 1455
U.S.v.Hill (Gilbert Manson) a/k/a Champ
NO. 83-5124
United States Court of Appeals,fourth Circuit.
MAR 15, 1984
1
Appeal From: D.Md.
2
AFFIRMED.
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874 F.2d 1476
50 Fair Empl.Prac.Cas. 345,29 Wage & Hour Cas. (BN 590,50 Empl. Prac. Dec. P 39,081,112 Lab.Cas. P 35,221
Clifford BROWN, Plaintiff-Appellant,v.MASONRY PRODUCTS, INC., Bob Hollingsworth, and AllenHollingsworth, Defendants-Appellees.
No. 88-8097.
United States Court of Appeals,Eleventh Circuit.
June 7, 1989.
David E. Tuszynski, Nickerson and Tuszynski, P.C., Atlanta, Ga., for plaintiff-appellant.
Kevin B. Buice, Tisinger, Tisinger, Vance & Greer, P.C., Carrollton, Ga., Peter K. Kintz, Lokey and Bowden, Totsy Nichols, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before RONEY, Chief Judge, COX, Circuit Judge and MORGAN, Senior Circuit Judge.
RONEY, Chief Judge:
1
Plaintiff Clifford Brown filed suit in the Northern District of Georgia against his former employer, Masonry Products, Inc., its owner, Bob Hollingsworth, and his son, Allen Hollingsworth, alleging civil rights violations under 42 U.S.C.A. Secs. 1981, 1985(3), violation of the Fair Labor Standards Act, 29 U.S.C.A. Sec. 201 et seq., and several state law causes of action. The district court granted the defendants summary judgment on all the federal claims and dismissed the state claims because of lack of pendent jurisdiction. We affirm.
2
The bulk of the claims arise out of an altercation between Brown and the Hollingsworths on August 1, 1986. From November 1985 until July 25, 1986, Brown had been employed as a laborer at Masonry Products, which manufactures and sells concrete products. Sometime during this eight-month period, sheriff's deputies came to Masonry Products to arrest Brown on a minor criminal charge involving a broken window in the trailer park where Brown lived at the time. To prevent Brown from going to jail, Bob Hollingsworth agreed to act as surety on Brown's bail bond. Hollingsworth contends that he made it clear to Brown that he would only act as surety as long as Brown remained employed by Masonry. Brown says that no such condition was ever discussed.
3
Brown came to Masonry on August 1, having not reported to work since July 25, to pick up a check he believed was due him. Hollingsworth told him that he would no longer serve as surety, because he considered Brown to have voluntarily quit his job with Masonry, and that Brown should accompany him to the county jail so Hollingsworth could be removed from the bond. Brown states that he refused to go because he had to report to his new job. Although the parties dispute the precise sequence of events which followed, they do agree that Hollingsworth grabbed Brown's arm, Brown jerked away and Hollingsworth took hold of his arm again. Allen Hollingsworth states that Brown pulled away a second time and prepared to strike his father. Allen Hollingsworth then grabbed Brown from behind, and in the ensuing scuffle, all three fell to the ground and Brown's arm was broken.
4
Brown was then led to the Hollingsworth truck and Allen Hollingsworth placed a rope around Brown's neck or shoulders. The rope was removed a short time later at the elder Hollingsworth's instruction. Brown contends that en route to the jail Bob Hollingsworth uttered a racial slur, struck him in the head, and threatened him with a hammer.
5
Brown filed a complaint alleging that the Hollingsworths' actions were undertaken solely because he is black and that they would not have occurred absent racial prejudice.
The Civil Rights Claims
6
Brown argues that the defendants deprived him of his contractual right to collect wages due him from them and, because of his broken arm, deprived him of his right to enforce his contract of employment with his new job in violation of section 1981.1 He further contends that defendants conspired to deprive him of these rights, as well as his right to be free from physical violence, in violation of section 1985(3).2
7
The United States Supreme Court has made it clear that both sections 1981 and 1985 may reach private conduct. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1974); Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338 (1971). But see United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983) (an alleged conspiracy to infringe First Amendment rights not a violation of section 1985(3) absent a showing of state action). It is equally clear, however, that the civil rights statutes were not intended to federalize all of state tort law. Griffin, 403 U.S. at 101, 91 S.Ct. at 1797. ("That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others."). Rather, only conduct that is motivated by racial, class-based "invidiously discriminatory animus" gives rise to a civil rights claim. Id. at 102, 91 S.Ct. at 1798.
8
There is no evidence that the actions taken against Brown here were because of class-based, racial animus. The physical altercation occurred when Brown refused to accompany Hollingsworth to the jail so that Hollingsworth could be released from the bond. There is no support for Brown's claim that the dispute occurred "solely because he is a black man." See Hughes v. Ranger Fuel Corp., 467 F.2d 6, 9 (4th Cir.1972) (section 1985(3) not intended to allow Congress the right to punish any assault and battery when committed by two or more people within a state); Croy v. Skinner, 410 F.Supp. 117, 127 (N.D.Ga.1976) (isolated racial slur fails to show type of class-based discrimination required to state claim). A spontaneous brawl between men of different races does not alone bring the matter within the confines of the federal statutes alleged here.
9
The only other instances of alleged racial animus that Brown can cite are two occasions when Bob Hollingsworth allegedly "cussed" at him and a general allegation that Hollingsworth swore at black employees, but never white employees. This evidence standing alone is not sufficient to preclude summary judgment. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 188 (2d Cir.1978) (summary judgment affirmed where plaintiffs merely alleged their belief that termination was racially motivated), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978).
Fair Labor Standards Act
10
Brown contends that when he went to Masonry on August 1, 1986, he expected to receive a check for 29.5 hours he worked during the last week of his employment. He did not receive a check because all of it had been applied to a judgment for which his wages at Masonry had been garnished. Masonry had under-withheld from Brown's checks while he was working there based on his assurance that he would take care of the debt. After his employment ceased, Masonry applied his entire last check to the judgment.
11
We have jurisdiction over Brown's claim under the FLSA, even though the amount sought--$99.40--is small. The great weight of authority supports the view that federal district courts, because of their original jurisdiction under 28 U.S.C.A. Sec. 1337 over claims arising under a law regulating commerce, can entertain a FLSA claim under the Act's civil remedy provision, 29 U.S.C.A. Sec. 216(b), regardless of the amount in controversy or diversity of citizenship. See, e.g., Bledsoe v. Wirtz, 384 F.2d 767, 769 (10th Cir.1967) ("Jurisdiction in the Federal courts depends solely upon a finding of engagement in interstate commerce and no diversity or jurisdictional amount need be shown."); Johnson v. Butler Bros., 162 F.2d 87, 88 (8th Cir.1947) (cause of action under FLSA "being one which arises under a law regulating commerce, may be enforced in a federal district court, regardless of the amount in controversy or of the citizenship of the parties"); Consolidated Timber Co. v. Womack, 132 F.2d 101, 104 (9th Cir.1942) (jurisdiction regardless of amount involved or diversity); Robertson v. Argus Hosiery Mills, 121 F.2d 285, 286 (6th Cir.) (because suit arose under law regulating commerce, "the sum or value in controversy is immaterial"), cert. denied, 314 U.S. 681, 62 S.Ct. 181, 86 L.Ed. 544 (1941). A plethora of district courts also have decided this issue similarly. See 28 U.S.C.A. Sec. 1337 n. 36. See also Washington v. Miller, 721 F.2d 797 (11th Cir.1983) (court entertained FLSA minimum wage claims for group of plaintiffs ranging from as little as $40.95 up to $3,131.30 and noted that jurisdiction existed under 28 U.S.C.A. Sec. 1337). But see Boll v. Federal Reserve Bank of St. Louis, 365 F.Supp. 637 (1973) ("de minimis" rule applicable for claim seeking payment for 9.5 hours of work), aff'd, 497 F.2d 335 (8th Cir.1974); Crosby v. Oliver Corp., 9 F.R.D. 110 (S.D.Ohio 1949) (de minimis rule applicable).
12
We hold that there has been no FLSA violation in this case, however. It is undisputed that Brown's rate of pay was set at $4 per hour, higher than the required minimum wage. During Brown's employment with Masonry, his wages were garnished and the company was required to withhold a portion of Brown's wages. Under the FLSA regulations, however, money paid to a third party for the benefit of the employee pursuant to a garnishment is treated as equivalent to payment to the employee. Thus, Brown cannot, and does not, complain that Masonry did not pay him the minimum wage throughout his employment, even though a portion of his paycheck was withheld each week.
13
Brown objects, however, to Masonry's withholding of his entire last paycheck to apply to the garnishment after he quit his job there. But Brown ignores Masonry's assertion that it applied the entire last check to the garnishment because it had under-withheld from Brown's previous checks during his employment based on Brown's promises that he would take care of the debt. Brown had effectively received more than he was entitled to while he held his job with Masonry. The district court correctly rejected Brown's claim that the assessed garnishment lowered the amount he was paid below minimum wage and found that any remedy he was entitled to because of an allegedly improper garnishment was a matter of state law. See O.C.G.A. Sec. 18-4-20(d). Masonry did not violate restrictions in the Fair Labor Standards Act and regulations on the amount of wages that may be subject to garnishment. See 29 U.S.C.A. Secs. 206 and 216(b); 29 C.F.R. 531.27 and 531.39.
14
Because summary judgment was properly granted for defendants on all federal claims, the district court was within its discretion in dismissing the state claims because of lack of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
15
AFFIRMED.
1
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and no other.
2
Section 1985(3) provides in relevant part:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT LEE KENON, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1033
[July 20, 2017]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Martin County; James W. McCann, Judge;
L.T. Case No. 56-2007-CF001604A-A.
Robert Kenon, Jr., Perry, pro se.
No brief filed for appellee.
PER CURIAM.
Affirmed.
GROSS, MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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NUMBER 13-03-159-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_______________________________________________________
JOE TORRES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
_______________________________________________________
On appeal from the 117th District Court
of Nueces County, Texas.
_______________________________________________________
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Opinion Per Curiam
Appellant, Joe Torres, attempts to appeal a conviction for aggravated sexual
assault of a child. The trial court has 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).
On January 7, 2004, this Court notified appellant’s counsel of the trial court’s
certification and ordered counsel to: (1) review the record; (2) determine whether
appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s
findings as to whether appellant has a right to appeal, or, alternatively, advise this
Court as to the existence of any amended certification.
On February 5, 2004, counsel filed a letter brief with this Court. Counsel’s
response fails to establish either that the certification currently on file with this Court
is incorrect or that appellant otherwise has a right to appeal.
The Texas Rules of Appellate Procedure provide that an appeal must be
dismissed if the trial court’s certification does not show that the defendant has the
right of appeal. Tex. R. App. P. 25.2(d); see Tex. R. App. P. 37.1, 44.3, 44.4.
Accordingly, this appeal is dismissed. Any pending motions are denied as moot.
PER CURIAM
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered
and filed this the 1st day of April, 2004.
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748 F.2d 804
Theodore MITCHELL, Frank Dolan, William Fischer and ArthurMeadows, on Their Behalf and on the Behalf of AllOthers Similarly Situated, Plaintiffs- Appellees,v.Mario CUOMO, Governor of the State of New York, Thomas A.Coughlin, III, Commissioner of the New York State Departmentof Correctional Services, Raymond R. Bara, Superintendent ofthe Long Island Correctional Facility, Defendants- Appellants.
No. 494, Docket 84-7813.
United States Court of Appeals,Second Circuit.
Argued Oct. 24, 1984.Decided Nov. 26, 1984.
Howard L. Zwickel, Asst. Atty. Gen., State of New York, New York City (Robert Abrams, Atty. Gen., Barbara B. Butler, Asst. Atty. Gen., State of New York, New York City, of Counsel), for defendants-appellants.
Leon Friedman, New York City (John H. Steel, New York City, of Counsel), for plaintiffs-appellees.
Before LUMBARD, FRIENDLY, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
1
In this action by inmates of the Long Island Correctional Facility (LICF), defendants appeal from an order of the United States District Court for the Eastern District of New York, Frank X. Altimari, Judge, that granted the inmates' application for a preliminary injunction prohibiting defendants from closing LICF pending a trial on the merits. Finding no abuse of discretion, we affirm.
BACKGROUND
2
In June of 1982, the New York State correctional system was filled to 114 percent of its permanent housing capacity for prisoners. As part of an ongoing response to the need for additional prison space, the state Department of Correctional Services (DOCS) converted part of the Pilgrim State Psychiatric Center at West Brentwood, Long Island, into the medium-security LICF in July of 1982.
3
Defending the state's decision to open LICF, Thomas A. Coughlin III, New York's Commissioner of Corrections, described in detail to the state Supreme Court the state's increasingly desperate need for prison beds. He stated that any delay in opening LICF "would be the equivalent of the ingestion of a convulsing thalidomide. In my opinion, the system could not endure it." In September 1983 he stated under oath that "the statewide need for additional housing capacity is grave and immediate; and that any delay in, or deferral of, measures to relieve the State's critically over-extended facilities is an unacceptably dangerous risk." Commissioner Coughlin attributed this "dangerous risk" to overcrowding and testified that among the possible consequences of not providing additional housing space for New York's prisoners were "riots", "death", and "injury to both inmates and [employees] of this department".
4
However, based on its determination that it had opened LICF without providing adequate opportunity for community participation in the planning process, DOCS decided to close the facility on October 1, 1984. Even though the rest of the state correctional system was filled to 116 percent of permanent capacity as of September 1984--making the system more overcrowded than when LICF opened--the DOCS plan would have reduced the state's inmate housing capacity by 1000 beds and required the transfer of approximately 475 LICF inmates into other medium and maximum security prisons in the state.
5
The inmates brought this action alleging that the plan to close LICF and transfer them to other overcrowded facilities would violate their eighth and fourteenth amendment rights against cruel and unusual punishment. Following a two-day hearing, the district judge preliminarily enjoined defendants from closing the facility and scheduled plaintiffs' underlying claims for trial in January 1985.
6
The state has appealed, contending that the district judge abused his discretion because the record does not support his findings of irreparable harm, of a sufficiently serious risk to plaintiffs' eighth amendment interests, or of a balance of equities in plaintiffs' favor. The inmates contend that the district judge did not abuse his discretion by maintaining the status quo until trial in January. They argue that irreparable harm is present since closing the prison would be an irreversible act and there is a possible threat to their eighth amendment right not to be subjected to cruel and unusual punishment. They contend, moreover, that the balance of hardships tips decidedly in their favor because their loss would be an unconstitutional deprivation of eighth amendment rights if the injunction did not issue, while the state's gain would be merely financial and administrative.
DISCUSSION
7
The standard for granting a preliminary injunction is clear. "A party ... must always show that it is likely to suffer possible irreparable harm if the requested relief is not granted. In addition, it must demonstrate either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor." Coca Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982). Of course, we must accept the district judge's findings of fact unless they are clearly erroneous. Unicon Management Corp. v. Koppers Company, 366 F.2d 199, 203 (2d Cir.1966). The ultimate, narrow question before us as a reviewing court is whether the district court abused its discretion in issuing the preliminary injunction. Coca Cola Co., 690 F.2d at 315.
8
1) Irreparable Harm.
9
The district judge found irreparable harm arising from the facts that without injunctive relief, plaintiffs would be transferred into an already overcrowded system and the LICF would be permanently closed. Obviously, the district judge did not determine at this preliminary stage that closing LICF and transferring the prisoners would, in and of itself, constitute irreparable harm. Rather, the irreparable harm he found arose from the possible deprivation of eighth amendment rights that plaintiffs contend will follow from implementation of the plan. "When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2948, at 440 (1973). See Ambrose v. Malcolm, 414 F.Supp. 485, 493 (S.D.N.Y.1976) (eighth amendment); Lollis v. New York State Department of Social Services, 322 F.Supp. 473, 483 (S.D.N.Y.1970) (eighth amendment). Given the evidence of increasing overcrowding in the state system and its potentially dangerous consequences, which constitute the alleged threat to plaintiffs' eighth amendment rights, the district judge's finding of irreparable harm is not clearly erroneous.
10
2) Serious and Substantial Questions.
11
In determining whether plaintiffs' eighth amendment claims presented sufficiently serious and substantial questions going to the merits to make them a fair ground for litigation, the district judge correctly looked to the "totality of the circumstances caused by the institutionalized overcrowding." Lareau v. Manson, 651 F.2d 96, 107 (2d Cir.1981). "When 'the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates * * *,' the court must conclude that the conditions violate the Constitution." Rhodes v. Chapman, 452 U.S. 337, 364, 101 S.Ct. 2392, 2408, 69 L.Ed.2d 59 (1981) (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 323 (D.N.H.1977) ). Here, the district judge did not find, nor do we suggest, that the DOCS plan to close LICF and transfer its inmates to other facilities would necessarily lead to a violation of the inmates' eighth amendment rights. Nevertheless, the record does support the district judge's finding that plaintiffs' claims in this regard presented serious and substantial questions.
12
The district judge found that "a substantial number of inmates [were] housed in 'temporary housing' which was never designed to house inmates, and that healthy and/or non-disruptive inmates [were] housed in the infirmaries or medical units * * *." Prison guards and commissioners testified that infirmaries, program rooms, recreation rooms, storage and locker areas, and even a chapel had been converted to inmate housing units. Further, Commissioner Coughlin admitted in a March 1984 affidavit that DOCS then used 3,652 beds classified as temporary housing and stated that "[t]his housing provides insufficient living space and is substandard with regard to showers, toilets, food service, etc." Somewhat similar conditions prompted us to hold in Lareau v. Manson, 651 F.2d at 108 that "as regular methods of housing convicted inmates, none of these practices can pass constitutional muster."
13
Corrections officers testified to, and the district judge found, "ample evidence which points to an increase in the level of tension and the number of fights or incidents of violence caused by the overcrowding and the 'idle time' " of inmates with no assigned work. Commissioner Coughlin stated in a September 1983 affidavit that the extended use of temporary housing capacity was "unacceptable in that it significantly heighten[ed] the possibility of inmate disturbance", and in March 1984 he "attribut[ed] the riot at the Ossining Correctional Facility in January of 1983 directly to the pressures which overcrowding places on the housing and program resources of the system and on the persons who live and work in our facilities." Faced with similar conditions and tensions in Lareau, we were "unwilling to wait until these increases [in security problems] mature[d] into one of the tragic eruptions which have occurred in overcrowded institutions elsewhere before acting to condemn the conditions which breed them." Lareau v. Manson, 651 F.2d at 108. Since closing LICF could only intensify these problems that Commissioner Coughlin had described as causing "unacceptably dangerous risks" such as "riots" and "death", the district judge did not err in finding that defendants' plan presented serious constitutional issues that required full exploration at a plenary trial.
14
Defendants argued that even though closing LICF would reduce the system's housing capacity by 1000 beds, an expected increase from new construction of 1900 beds by the end of this year would allow the system to safely absorb the LICF inmates and all other inmates entering the system during that period. In view of conflicting testimony about the expected weekly net inflow of between 50 and 100 inmates and some doubt as to when the expected new facilities would actually open, the district judge stated that it would not "risk the potential violation of plaintiffs' Eighth Amendment rights based upon a hope for what will be in the future", and properly found that defendants had not demonstrated to the court's satisfaction that sufficient new spaces were presently operational to eliminate the risk of constitutional harm.
15
3) Balance of Hardships.
16
Finally, the district judge found that "the balance of hardships tips decidedly in plaintiffs' favor". Although "troubled by defendants' assertion that any delay in the closing of LICF would cause fiscal chaos as well as additional strain on the DOCS' security force," the district judge concluded that in light of the serious and substantial questions going to the merits of the eighth amendment claim, "the plaintiffs would face significantly greater hardship if transferred elsewhere in the DOCS system as presently constituted." Faced with such a conflict between the state's financial and administrative concerns on the one hand, and the risk of substantial constitutional harm to plaintiffs on the other, we have little difficulty concluding that the district judge did not err in finding that the balance of hardships tips decidedly in plaintiffs' favor. See Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.1983), denying partial stay pending appeal in 572 F.Supp. 26 (C.D.Cal.), partial stay granted pending appeal, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (Rehnquist, Circuit Justice), emergency application to vacate stay denied, --- U.S. ----, 104 S.Ct. 221, 78 L.Ed.2d 217, district court aff'd in part and rev'd in part, 725 F.2d 1489 (9th Cir.1984).
CONCLUSION
17
In short, defendants have not overcome "the heavy burden of establishing that the trial court misapplied [the] accepted principles" for issuing a preliminary injunction. Guinness & Sons v. Sterling Publishing Company, 732 F.2d 1095, 1099 (2d Cir.1984). We recognize that for this case, as for many others in the prison context, final determination after the January trial may involve difficult legal and factual questions. The purpose of the preliminary injunction now before us, however, is not to decide such questions but "to preserve the status quo pending final determination of a dispute." Id. We expect that, because the preliminary injunction restricts to a limited degree the flexibility the state has in operating its prison system, the district court will conduct the pretrial and trial proceedings and render a decision with due dispatch, consistent, of course, with the needs of the parties for necessary preparation and prosecution of their cases. Of course, should the underlying circumstances change significantly between now and conclusion of the trial the preliminary injunction can be modified or vacated by the district court on proper application. In view of the tragic consequences of past disturbances in New York's prison system and the likely relationship between these disturbances and overcrowding, we cannot find an abuse of discretion in the district judge's hesitation to permit still greater overcrowding of the correctional system under the particular circumstances of this case. This panel retains jurisdiction of the case for purposes of any future appeals.
18
The preliminary injunction is affirmed.
FRIENDLY, Circuit Judge, dissenting:
19
So far as I am aware, this is the first case in which a federal court has used the powerful weapon of an injunction against state prison administrators when no violation of prisoners' Eighth Amendment rights has occurred and the court simply is fearful that one might. If a preliminary injunction is to issue in such a case, the factual showing must be very strong, whereas here, as will subsequently be shown, it was exceedingly weak, at least with respect to two-thirds of the transfers proposed. Issuance of an injunction here flies in the face of the Supreme Court's many admonitions in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), that federal judges should avoid intruding into state prison administration unless clear-cut violations of the Eighth Amendment demonstrated. Id. at 348, 349-50, 351-52, 101 S.Ct. at 2400, 2400-01, 2401-02. There is no need to quote all these warnings; I will here limit myself to the concluding one that federal "courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system ...." Id. at 352, 101 S.Ct. at 2402. We should look for guidance to the majority opinion in Rhodes, representing the views of six justices, rather than, as the majority here does, to the concurring opinion, which represents the views of only three, or to our own opinion in Lareau v. Manson, 651 F.2d 96 (2d Cir.1981), portion of which relied on the lower court decision in Chapman v. Rhodes, 434 F.Supp. 1007 (S.D.Ohio 1977), aff'd mem., 624 F.2d 1099 (6th Cir.1980), that was reversed by the Supreme Court only a fortnight after Lareau was decided.
20
The State's plan enjoined by the district court concerned approximately 450 prisoners remaining at LICF.1 One hundred and fifty of these prisoners were to be placed in eleven medium security facilities located in the lower Hudson region; DOCS anticipated that the needed space would become available there as the result of ordinary attrition. Another hundred and fifty LICF prisoners would be offered the option of transferring to the Sing Sing correctional facility; the thought was that many prisoners would prefer to spend their last months of incarceration in a facility near New York City and thus closer to home, rather than be transferred upstate. Although Sing Sing is a maximum security prison, transferees would retain medium security classification and preference would be given to those with the shortest time remaining on their sentences. The necessary beds would become available through the movement of Sing Sing inmates to maximum security facilities upstate where space would become available as medium security prisoners housed in maximum security prisons were moved into newly constructed medium security prisons. The remaining one hundred and fifty prisoners (plus any who did not exercise the Sing Sing option) would be transferred to Greene, a new facility which was expected to be able to house 500 inmates by the end of October 1984, very nearly the same date as that anticipated for the completion of the transfer of the LIFC prisoners. From what we were told at argument on October 24, 1984, the district judge's doubts about the early availability of Greene proved unfounded. In any event, as his opinion acknowledges, the Groveland Correctional Facility, the availability of which was not relied upon in devising the plan to close LICF, was "scheduled to become fully operational at a capacity of four-hundred over a five week period which began on or about September 17, 1984 ...;" this space was also available "if necessary" to complete the closing of LICF, Testimony of Director Clark, Joint App. at 285. We were told at argument that Groveland already had 125 prisoners and could take 50 more per week up to a maximum of 360 during 1984. State officials testified further that an additional 1000 beds would be added with the opening of the new Wyoming and Orleans facilities by December 31, 1984; that by January, 1985, another hundred beds would be added at Groveland; that by March, 1985 an additional five hundred beds would come on-line with the completion of another new facility at Great Meadow; and that a further one thousand new beds would become available in March and April, 1985. Quite obviously these extensive new facilities will have the bed capacity to handle the 450 transferred prisoners--even if that number were not further reduced by attrition. Moreover, the district judge conceded that Deputy Commissioner Leonardo had testified that "he would never allow the movement of inmates to a new facility where their reasonable food, sanitation, medical and/or safety needs would not be met." The State's plan was not written in stone, as the judge seemed to assume, and it is plain that LICF prisoners would not be transferred to new facilities until these were ready. Indeed, Deputy Commissioner Leonardo testified specifically that if the new facilities upon which the plan to close LICF depended were not available, he would not proceed with the plan because neither he nor the Commissioner would "put inmates or staff in an unsafe situation."
21
It is hard for me to understand, in the light of this largely uncontradicted evidence, how the district judge could have found a likely violation of the Eighth Amendment rights of the LICF prisoners, except possibly with respect to the one hundred and fifty whom DOCS proposed to transfer to the lower Hudson prisons. As to these facilities, there was some evidence of serious overcrowding and other problems, although I do not believe that any of this evidence demonstrated a condition sufficiently serious to constitute an Eighth Amendment violation. See Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400. There is no possibility of an Eighth Amendment violation with respect to Sing Sing; if a prisoner did not want to go there, he could simply decline. Neither was there any real doubt that the new facilities could handle the remainder of the LICF transferees. Indeed, with the exception noted in respect of the lower Hudson prisons, the judge does not seem to have found any likelihood that the Eighth Amendment rights of the LICF prisoners would be violated by what the State proposed; the injunction was based rather on the fear that the transfer of LICF prisoners to the new facilities would delay access to these facilities by the excess of new prisoners (including "state readies," i.e., defendants who had been held in county jails pending conviction and sentence) over prisoners discharged for having served their sentences or by being placed on parole. However, the LICF prisoners are not entitled to assert prospective violation of the constitutional rights of others. There was no sufficient evidence that any such delay would result in a violation of the constitutional rights of these prisoners; if there turned out to be violations, the rights should be asserted by the victims, not by the LICF transferees. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir.1981) ("an inmate does not have standing to sue on behalf of his fellow prisoners"); United States ex rel. Ratchford v. Mazurkiewicz, 451 F.Supp. 671, 673 (E.D.Pa.1978) (prisoner cannot sue to vindicate another prisoner's due process rights); Fowler v. Graham, 478 F.Supp. 90, 93 & n. 10 (D.S.C.1979).
22
To put the matter in another way, despite the district court's disclaimer that it "need not and does not make a determination as to the constitutionality of the entire New York State penal system," it seems to have done precisely that. The basis for its result was its conclusion that because the New York penal system is overcrowded in its entirety, transfer of even as few as 450 LICF prisoners, less than 1.5% of the total prison population, would require prison officials to place in jeopardy the Eighth Amendment rights of an equivalent number of other prisoners somewhere in the system. This conclusion not only hinges on the speculative Eighth Amendment claims of unidentified and unidentifiable prisoners not before the court, but also necessarily assumes that the mere fact of overcrowding constitutes an Eighth Amendment violation because it tends to increase tension and decrease care. Yet the majority in Rhodes held that 38% overcrowding--much worse than the evidence showed to be the situation in New York prisons or county jails--fell "far short ... of proving cruel and unusual punishment." 452 U.S. at 348, 101 S.Ct. at 2400. To sustain an Eighth Amendment claim, prisoners must show not merely that they will be placed in overcrowded facilities, but also demonstrate specific manifestations caused in the particular institution as a result of the overcrowding that "inflict unnecessary or wanton pain." Id. Issuance of the temporary injunction was thus founded on a doubly erroneous theory of law, and is not protected by the "abuse of discretion" standard of review. See Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1358 (2d Cir.1976); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 315-16 (2d Cir.1982); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982); 11 Wright & Miller, Federal Practice and Procedure Sec. 2962 at 636-38 (1973) (citing cases).
23
Beyond this, I believe that a test more rigorous than the "serious question/balance of hardships" branch of this court's standard formulation with respect to the grant of a preliminary injunction, which we have regularly employed in private litigation since Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir.1953), should be applied when an injunction is sought against a sovereign. Judge Van Graafeiland wrote to this effect for unanimous panels in Medical Soc'y of State of New York v. Toia, 560 F.2d 535, 538 (2d Cir.1977), where state action was involved, and in Union Carbide Agricultural Prods. Co. v. Costle, 632 F.2d 1014, 1017-18 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981), where federal action was at issue.2 These decisions are sound law. It is inconsistent with principles of federalism for a district judge to stop a sovereign state "in its tracks," Union Carbide, supra, 632 F.2d at 1018, unless the plaintiff shows, in addition to irreparable harm, a likelihood of success. For the reasons indicated above, I do not believe that plaintiffs have made a showing on this score anywhere nearly sufficient to justify an injunction of the breadth of the one issued here;3 an injunction limited to transfers to the lower Hudson prisons would have been another matter.
24
Appellees place great stress on the fact that the injunction will last only until the trial in January, 1985. However, as I see the case, the plaintiffs cannot prevail without having the court review the constitutionality of the entire New York prison system (including county jails). This will require prognostications of the number of incoming and outgoing prisoners and the advent of new facilities while the 450 LICF prisoners are being absorbed, and also will necessitate joining representatives of other classes of prisoners as plaintiffs. Moreover, the majority recognizes that "final determination after the January trial may involve difficult legal and factual questions." After the trial there will be the need for briefs and proposed findings, and the district court will require time to prepare its opinion. I do not see an end to this litigation even in the district court until well into the spring of 1985, after which another appeal is almost certain.
25
Underlying the opinions both of the district court and of the majority in this court seems to be the view that it was bad policy for the State, faced with a chronic shortage of beds, to deprive itself of 1000 entirely suitable prison beds at LICF, the need for which it had stoutly maintained in earlier litigation. There also seems to be a belief that the asserted reason for closing LICF--the alleged inadequate "opportunity for community participation in the planning process" for conversion of a part of the former Pilgrim State Psychiatric Center into a prison, afforded by the previous State administration--was an insufficient justification for such drastic action as closing LICF, as distinguished from affording now the opportunity for comment thought to have been withheld then. All this may well be so but, as the Supreme Court said in Rhodes v. Chapman:
26
In assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries "spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility." Bell v. Wolfish, 441 U.S. 520 at 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979).
27
452 U.S. at 351, 101 S.Ct. at 2401 (footnote omitted).
28
I respectfully dissent.
1
This figure compares with a total state prison population of 32,988 in September 1984
2
Appellees cite in opposition Sadowsky v. City of New York, 732 F.2d 312, 316 (2d Cir.1984), where the court repeated the traditional language in an action for an injunction against a city. This court there approved the action of the district court in denying an injunction, and the discussion in the opinion shows that nothing turned on the appropriate standard. Id. at 316-18. Language in Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir.1980), is more helpful to appellees, but the court there found that "the merits of this case provide more than a 'fair ground for litigation.' "
3
The court's order preliminarily enjoined the State from closing the LICF, from transferring inmates out of LICF for the purpose of implementing the plan to close the facility (with a minor exception not here material) and from terminating the employment of or involuntarily transferring employees of DOCS currently employed at LICF for the purpose of implementing the plan to close the facility. The judge could have met any proper concerns simply by prohibiting transfers to the overcrowded lower Hudson facilities
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652 F.2d 574
26 Fair Empl.Prac.Cas. 796,26 Empl. Prac. Dec. P 32,034Wayne Alfred JOHNSON, Plaintiff-Appellant,v.GENERAL TIRE AND RUBBER CO., Defendant-Appellee.
No. 80-2336 Summary Calendar.
United States Court of Appeals, Fifth Circuit. Unit A
Aug. 6, 1981.
E. Brice Cunningham, Dallas, Tex., for plaintiff-appellant.
Carrington, Coleman, Sloman & Blumenthal, Peter Tierney, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
I.
1
Appellant, Wayne A. Johnson, instituted this Title VII suit in January 1980, alleging that because of his race, appellee, General Tire, had failed to (i) promote him to the position of foreman when he returned to work from sick leave in 1978, (ii) consider him for a management position, or (iii) allow him to return to work following an extended sick leave and instead terminated him. The Court concluded that Johnson had failed to prove a prima facie case regarding any of the three claims and that he had been terminated because there was no job in the bargaining unit he was qualified to perform or be transferred to. Based on a careful review of the record, we do not find any of the District Court's findings of fact clearly erroneous, or its conclusions of law to be wrong, and, therefore, we affirm the Court's judgment in all respects.
II.
2
Johnson, a Negro male, was hired by General Tire as a tractor tire builder in May of 1970. During his employment with General Tire, he worked as a tire builder, utility man and spidone slitter.
3
While working as a tire builder, Johnson developed back trouble causing him to miss approximately nine months of work in 1973 and 1974. When he returned to work after his back trouble, he was given a medical transfer to the job of utility man in order to accommodate his medical problem. Such medical transfers were governed by the collective bargaining agreement in effect during Johnson's employment at General Tire. Later on, he was given another medical placement to the job of spidone slitter to accommodate both his back problem and a reoccurring dermatitis condition.
4
Subsequently, his back trouble was somewhat remedied, but Johnson continued to experience frequent flare-ups of his dermatitis condition aggravated by the tire plant environment. This condition had developed in the Armed Services prior to commencing employment with General Tire. However, Johnson on his pre-employment interview had failed to disclose the condition.1 Because of absences related to the dermatitis condition, Johnson worked less than one full year in the five year period between January 1, 1974, and his termination, October 18, 1978.
5
Johnson attempted to return to work in July of 1978 but was able only to work for a day and a half before his dermatitis forced him to stop working. General Tire was informed by Johnson's doctor that the heat and chemicals in the plant environment were irritating the skin condition, and that his recommendation to Johnson was to discontinue working at General Tire.
6
When Johnson attempted to return to work in October of 1978, he was told that the company had determined that there was no job in the bargaining unit he could perform because of his dermatitis. He did inquire about management positions but was told there were none available due to his medical disqualifications. He was, therefore, terminated.
7
Johnson filed a grievance with the Union concerning his discharge and charges with the Equal Employment Opportunity Commission in February 1979. No action was taken by the Union on the grievance and the Equal Employment Opportunity Commission found there was no reasonable cause to believe Johnson had been discriminated against. This appeal followed and Johnson now argues that because of his race, General Tire failed to promote him to a supervisory or management position at any time during his employment, refused to shift him to some other bargaining unit position when he returned from extended sick leave in October 1978, and, subsequently, terminated him.
III.
8
The plaintiff in a Title VII case bears the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Therefore, Johnson was required to prove that he applied for promotion or transfer to a job for which he was qualified and for which he was rejected; as to termination, it was necessary to prove that he was terminated from a job for which he was qualified. In addition, plaintiff must show that these decisions were made by General Tire "under circumstances which give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1094, 67 L.Ed.2d at 216.
9
The existence of a prima facie case is most often gauged by the formula announced by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That formula requires the plaintiff to show (i) that he belongs to a racial minority, (ii) that he applied and was qualified for a job for which the employer was seeking applicants, (iii) that, despite his qualification, he was rejected, and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff's qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677. The proof offered must negate the possibility that the rejection was based on the applicant's lack of qualifications or the lack of an available position--two of the most common legitimate reasons for rejection. To rebut the plaintiff's prima facie case if one is made, a defendant must then articulate some legitimate, nondiscriminatory reason for the employment action. The sufficiency of the admissible evidence in satisfying this burden of production is whether the evidence raises a genuine issue of fact such that the trier of fact could conclude that the employment decision had not been motivated by discriminatory animus. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 218.
10
We now review the evidence before us in order to determine whether it meets these standards.
A. Failure To Promote
11
Johnson alleges that he "constantly applied for" positions as supervisor, foreman or other management position. He contends further that there were management positions open during the time he sought promotion for which he was qualified, specifically that of personnel manager, but instead of promoting him to that position, General Tire promoted a person with fewer qualifications.
12
Although Johnson refers to available management positions in the plural, the personnel management job was the only one for which he specifically claims to have been qualified. At trial, Johnson also referred to a "foreman's job", but the only evidence of the existence of such a job was Johnson's statement that he "had heard they were promoting foreman." He made no claim to having been qualified for a foreman's job, and no evidence was adduced to show that he was qualified or that such a job was, in fact, open or ever filled. In addition, the foreman works in the same plant environment as the workers in which he supervises, therefore, Johnson conceded at trial that he would have come in contact with chemicals and other plant irritants in this position.
13
Johnson further testified that there was a management position in the insurance field for which he applied in 1976, but he knew nothing of the person hired for it except that he was a white male. When questioned about his own qualifications for that job, he admitted that his only experience in insurance matters was having received worker's compensation benefits and company accident and health policy benefits.
14
For the personnel manager job, Johnson testified that when the existing personnel director left in 1976, he applied for that position. Johnson further claims that the job was filled by a white male. According to Johnson, when the latter person left within the next year, he was replaced by a white female. There was no explicit testimony that Johnson requested the job at this point, but he argues in his brief that instead of promoting him, General Tire filled the position with a white female who, Johnson asserts, was less qualified than he. This statement is not supported by the record and there is no evidence whatever of the white female's qualifications.
15
More importantly, it is impossible for Johnson to rely on the personnel position to support his cause of action for racial discrimination because it was filled long before commencement of the relevant limitations period for his claims. As a prerequisite to filing a Title VII action, a plaintiff must have filed a timely charge concerning the alleged unlawful employment practice with the Equal Employment Opportunity Commission. 42 U.S.C.A. Sec. 2000e-5(e), (f)(1). See, e.g., Bracamontes v. Amstar Corporation, 576 F.2d 61, 62 (5th Cir.1978). An Equal Employment Opportunity Commission charge is timely only if filed within 180 days after the alleged unlawful employment practices occurred. See Fisher v. Proctor & Gamble Manufacturing Company, 613 F.2d 527, 538-39 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981). Johnson alleges in his complaint that his February 1979 charge of discrimination had been filed within 180 days of the acts complained of in the complaint. By implication, the challenged acts would have occurred between August 1978 and February 1979. Specifically, the complaint alleges that on October 18, 1978, Johnson was denied a foreman promotion, and, added generally, that General Tire had failed to consider him for a management position. Only at trial did it become apparent that Johnson was attempting to base his non-promotion claim on acts which occurred as much as two years before the 180 day cut-off. Since Johnson has failed to make a timely charge, failure to place him in that job could have no present legal consequences in Johnson's present action. See United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571, 578 (1977).
16
Our review of the record has not uncovered any evidence of supervisory or management jobs which were open and for which Johnson applied and was rejected in early August 1978. Therefore, we find the Court correct in holding that Johnson had failed to make a prima facie case on his non-promotion claim under the McDonnell Douglas formula because he had failed to show the existence of any supervisory or management job which was open, for which he applied, for which he was qualified and from which he was rejected within the relevant time period.
B. Failure To Transfer
17
Johnson next argues that his termination was wrongful because there were other bargaining unit jobs he could have performed, but that because of his race, General Tire opted to terminate him rather than transfer him to such a job. Johnson contends that when he attempted to return to work in October 1978, after being unable to work because of dermatitis for almost the entire previous two years, General Tire should have moved him to another bargaining unit job. The collective bargaining agreement contained detailed provisions governing all aspects of transfers between such jobs including transfers of employees unable satisfactorily to perform jobs due to ill health. The record indicates that Johnson was, in fact, given two medical transfers under those provisions to accommodate his medical condition. The collective bargaining agreement, however, provides for transfers only to a job for which the transferee is qualified. Johnson suggests several jobs for which he would not have been medically disqualified since, he claims, he would not come in contact with the irritants which aggravated his condition--forklift operator or stock clerk. However, at trial the only jobs referred to by Johnson were forklift driver and final finish worker. Johnson was unable to define what a final finish worker did but he did explain the forklift job as picking up tires set on a pallet. When cross-examined about the forklift job, Johnson admitted he would be working around tires and could not say whether or not people perspired heavily in the windowless warehouse where such forklift jobs were performed.
18
At this point in the trial evidence had already established that Johnson's skin flare-ups were caused by temperature and perspiration. Johnson's doctor had indicated that he needed to be in a cool, dry area where he would not perspire heavily and that it would be advisable to terminate his employment at General Tire because of the inability to control his dermatitis while working. The doctor further stated that when Johnson worked in a hot and sweaty type environment, his condition becomes acutely inflamed.
19
But even more significant than this cumulative testimony, was the fact that there was no evidence introduced that there was a forklift operator job--or any bargaining unit job open in October when Johnson returned to work or that such a job ever opened at any time thereafter. Similarly, Johnson pointed to no job existing at any time around or after October 1978 filled by an employee he might have had sufficient seniority to bump.
20
Clearly, having shown no job to which he could have been transferred, Johnson has raised no inference that General Tire's decision not to transfer him a third time was in any way racially motivated. Johnson presented no evidence of a specific job he could have filled, and as to the general job categories referred to in his testimony at trial, his claim that he could have performed in one of them is unsupported by the medical evidence in the record. Based on this medical evidence, General Tire articulated that there was no bargaining unit job in which Johnson's dermatitis would not continue to disable him, and, therefore, the company decided to terminate his employment. The trial court correctly found that the medical disqualification was General Tire's motivation for the termination action--that finding is not clearly erroneous.
C. Termination
21
Likewise, the Trial Court found that Johnson was terminated "because of his reoccurring disabling medical problem." Johnson's argument that there was no evidence to show he was not qualified for the job from which he was terminated is meritless in light of the fact that Johnson himself provided uncontradicted testimony in support of that finding.2 Moreover, it was not General Tire's burden to introduce evidence that Johnson was unqualified; rather, it was Johnson's burden to show he was qualified for the job from which he was terminated. See Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980).
22
The record indicates that Johnson returned to General Tire as a tractor tire builder in July of 1978 and worked a day and a half. After that, Johnson explained his dermatitis condition "got to the point that [he] could not perform that job any more." Upon leaving in July, Johnson applied for further accident and health benefits, claiming his dermatitis as a "total disability." There is not a shred of evidence in the record which hints that due to Johnson's dermatitis he was capable of, or could ever be capable of, performing the tire builder job from which he was terminated.
Conclusion
23
The Trial Court could properly find the evidence insufficient to establish a prima facie case on any of Johnson's claims. The District Court's judgment was correct.
24
AFFIRMED.
1
The Court noted in its findings of fact and conclusions of law that Johnson answered in the negative two questions "have you ever been treated for a skin eruption?" and "do you have or have you had a service connected illness?" Both of these questions were asked in Johnson's pre-employment interview with General Tire's medical department prior to employment
2
Appellant testified:
Q: It gets warm in the General Tire plant environment, particularly in the summer, does it not, sir?
A: Yes, it does.
Q: You sweat in those bargaining unit jobs in the plant environment, do you not?
A: Those that I had I did.
Q: And sweat, you were told by the doctor, aggravated your skin condition, isn't that right, sir?
A: Correct.
Q: And you were told by Dr. Lee that working around chemicals and solvents and carbon black and other irritants in the carbon plant environment irritated your dermititis.
A: Yes.
Q: And I take it that when you got away from that environment, your condition improved rather rapidly.
A: Yes, it did.
Q: When you came back into the area of the agents and chemicals, your condition flaired up again?
A: Right.
Q: After you left in July of 1978, after the dermatitis flair-up, when you went back to Dr. Lee, he told you if you could not find an environment free of the sweat and irritants of the General Tire plant, you should find another job, didn't he?
A: He told me that.
Q: He told you that if you did return to that environment, even if he might give you a release, your dermatitis would flair-up again.
A: Right. As long as I'm exposed.
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IN THE COURT OF APPEALS OF IOWA
No. 14-2140
Filed August 5, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NOAH TANNER DAHL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Noah Dahl appeals from the sentence imposed upon his plea of guilty to
willful injury causing bodily injury. AFFIRMED.
William L. Kutmus of Kutmus, Pennington & Hook, P.C., West Des
Moines, and S.P. DeVolder of the DeVolder Law Firm, Norwalk, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Linda Fangman, County Attorney, and James Katcher, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, J.
Noah Dahl entered an Alford plea of guilty1 to the charge of willful injury
causing bodily injury, in violation of Iowa Code section 708.4(2) (2013). The
sentencing court imposed an indeterminate five-year term of incarceration. On
appeal, Dahl contends the court considered improper factors in sentencing. He
also contends the State breached the plea agreement and his trial counsel was
ineffective in failing to object. Finding no error, we affirm.
I. Background facts.
Noah Dahl was charged with willful injury causing serious injury, a class
“C” felony, after an August 8, 2013 fight involving four teenage males—Dahl and
a friend against two others. During the fight, Dahl cut a person five times with a
box cutter. The victim had wounds to “his neck, lower left torso, left side of his
back and his left shoulder.” The emergency room notes indicate the victim
“comes in with multiple stab wounds. . . . Pt. [patient] has laceration on front of
neck, stab on left side of abdomen that is bleeding. Pt. also has superficial cuts
to left back in three different areas.” Another notation provides, “There is a
complex laceration located over the anterior neck which is 5 cm in length. This
wound will require surgical closure to stabilize wound edges and ensure optimal
healing.” Dahl raised a justification defense, claiming he acted in self-defense.
On September 5, 2014, Dahl entered an Alford plea of guilty to willful
injury causing bodily injury, a class “D” felony, which is not a forcible felony.
1
North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “[a]n individual accused of [a]
crime may voluntarily, knowingly, and understandingly consent to the imposition of a
prison sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime”).
3
Under the plea agreement, both parties were free to argue for the sentence each
hoped the judge would impose.
At the plea hearing, there were no objections made to the court’s
statement that “as a part of today’s hearing I will be making a part of the record
the contents of those minutes of testimony in support of a factual basis in
accepting your plea.” The defendant stated he understood and further agreed
that the minutes of testimony would establish he was guilty beyond a reasonable
doubt. The prosecutor made this record as to the evidence that would establish
Dahl’s guilt:
We have several witnesses that would testify that Mr. Dahl,
on August 8, 2013, had used a knife or box-cutter-type weapon to
stab [victim] multiple times; that there was a[n] injury to the throat of
[victim]; . . .
We believe that particularly the wound to the throat would
give [an] indication of the defendant’s intent to inflict serious injury.
There were, in fact, scars that were produced from these injuries.
The scar to the throat being particularly visible to others.
THE COURT: Allright. Well again, upon reviewing the
minutes of testimony coupled with the statements of counsel, the
Court does find that there is a sufficient factual basis to accept your
pleas of guilty—or your plea of guilty here at this time.
The presentence investigation (PSI) report indicated Dahl was eligible for
a deferred judgment and recommended a suspended sentence.
At sentencing, the State argued for a prison term, noting Dahl had not pled
guilty outright but entered an Alford plea, had used a box cutter during the
incident, and a message needed to be sent that anyone “us[ing] weapons is
going to face a prison sentence.”
Dahl’s attorney argued for a deferred judgment, noting Dahl’s young age,
his educational goals, and his assertion of self-defense. Dahl’s counsel argued:
4
As far as the plea is concerned it is true, Your Honor, Mr.
Dahl did assert a defense of self-defense in the matter and he and I
had lengthy discussions about, you know, how that worked and his
involvement in that and what his involvement meant. To the extent
that he’s being taken to task here for an Alford plea, I will simply tell
you that that simply arises out of the fact that he and I had
discussions about his specific intent to cause a serious injury to [the
victim] . . . .
Dahl exercised his right of allocution, stating:
I am sorry for everything that happened and I know I am at
fault. There were many ways I could have prevented what
happened. I could have told Dalton to stop talking to them. I could
have stayed inside and I could have left. I’m sorry to [the victim] for
everything you went through. I’m very grateful that he was not
injured worse than he was.
I learned from this because I realize being a tough guy for
one night doesn’t help you at any time in your life. I’m sorry.
The sentencing court observed,
I have considered your request for deferred judgment. I did
look at the PSI. I did look at, attached to the PSI, all of the letters of
recommendation, and so I am cognizant of your request. I am—I
do appreciate to the extent that you have a significant amount of
support in the community, but in considering that against all the
other issues . . . I just do not believe that a deferred judgment under
these particular facts and circumstances is warranted. . . .
....
To the extent that there’s reference to your Alford plea, I
understand in this particular circumstance your position on the
Alford plea and I appreciate that. It’s not that I don’t understand it.
I don’t necessarily disagree with the State’s contention when an
individual enters a plea of guilty by virtue of an Alford plea, when
they refuse to admit they even committed a crime and then request
a deferred judgment, . . . .
In this particular case, based upon what your attorney told
me and considering what I remember at the time of the plea, that it
really went towards the issue of the specific intent, that I can
appreciate that and I don’t necessarily hold that fact you entered an
Alford plea here against you. I certainly don’t . . . .
5
The court considered a number of factors and determined that “given the nature
of this offense and the fact that there was a weapon used” it would not suspend
the sentence.
Dahl appeals, contending the sentencing court improperly considered his
Alford plea and unproven offenses and conduct. He also asserts the prosecutor
breached the plea agreement in raising the issue of the Alford plea and arguing
he had not accepted responsibility or showed contrition.
II. Scope and standard of review.
A defendant’s sentence is generally within the discretion of the trial court.
State v. Knight, 701 N.W.2d 83, 85 (Iowa 2005). “But the use of an
impermissible sentencing factor is an abuse of discretion and requires
resentencing.” Id.
III. Discussion.
A. Alford plea. Under an Alford plea, “‘the defendant acknowledges the
evidence strongly negates the defendant’s claim of innocence and enters [a
guilty] plea to avoid a harsher sentence.’” Id. (citation omitted). In Knight, 701
N.W.2d at 86-89, our supreme court discussed whether a sentencing court could
properly consider that a defendant had entered an Alford plea. The supreme
court stated, “[T]he defendant entering an Alford plea amidst claims of innocence
is no different than a defendant found guilty amidst claims of innocence. The
defendant’s lack of remorse is a pertinent sentencing factor in both situations.”
Id. at 89. The Knight court held, “A sentencing court may properly consider a
defendant’s lack of remorse when choosing a sentence that will provide for the
defendant’s rehabilitation and protect the public from further offenses by the
6
defendant, so long as the court’s lack-of-remorse finding is not based on the
defendant’s decision to stand trial.” Id.
Dahl’s attempt to pigeonhole the sentencing court’s comments here
concerning his Alford plea as improper are not convincing. The sentencing court
stated it understood Dahl’s defense was his claimed lack of specific intent to
injure. In coming to its sentencing decision, however, the court discussed the
PSI report, the letters of recommendations sent on the defendant’s behalf, the
nature of the offense, the danger the defendant’s actions posed to the victim, the
appropriateness of the plea agreement, the use of a weapon, and the
defendant’s poor choices. Based on those considerations, it determined a
suspended sentence was not warranted in the circumstances. We find no error.
B. Unproven offenses. The district court is not permitted to consider
unproven or unprosecuted charges when sentencing a defendant unless the
facts clearly establish the offense was committed or the defendant admits the
facts of the offense. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). The
defendant must make an affirmative showing that the district court relied upon
improper evidence of unproven charges. State v. Sailer, 587 N.W.2d 756, 762
(Iowa 1998). A strong presumption works in favor of the sentencing discretion
exercised by the district court. State v. Peters, 525 N.W.2d 854, 859 (Iowa
1994).
Here, Dahl asserts the following statement by the district court at
sentencing establishes it considered unproven and uncharged offenses:
You’re lucky that [the prosecutor] didn’t charge, when he allowed
you to back off from that charge of the C felony, that he didn’t
pursue the sentencing enhancements dealing with Iowa Code
7
section 902.7 where you used a dangerous weapon. And a knife,
or in this case a box cutter, under this particular fact pattern would
have been a walk in the park to prove that was, in fact, a dangerous
weapon. That it’s capable of killing somebody when used in that
fashion. And in doing so not only would you have been looking at
prison, but you would have been looking at a mandatory minimum
of five years before you were eligible for parole. And so you’re
lucky in that regard. You should be thankful in that regard.
....
I think you will—ultimately you made a good decision. I think
you made a good decision by accepting the plea offer here
because as I’ve indicated, assuming the witnesses testified
consistent with what I suspect they would, as the trial information
reflects, you stood a substantial likelihood of being convicted of a
forcible felony. And in all likelihood, maybe [the prosecutor] would
have added that sentencing enhancement on the eve of trial and
you’d have been looking at a five-year minimum [period of
incarceration] to boot.
We disagree with Dahl’s characterization of the court’s statements as
improperly considering unproven and uncharged offenses. Dahl admitted he
used a box cutter, and the record shows the victim was cut on the neck. Cf.
State v. Ortiz, 789 N.W.2d 761, 767 (Iowa 2010) (finding factual basis to support
a box cutter used in a robbery was a dangerous weapon); see also State v.
Jones, 817 N.W.2d 11, 13 (Iowa 2012) (letting stand the court of appeals State v.
Jones, No. 09-0146, 2011 WL 5444091, *4 (Iowa Ct. App. Nov. 9, 2011), ruling
that “[a] fork, used to stab . . . is capable of causing death, especially when
causing an injury in a vulnerable place like the neck”). The victim appeared in
court and offered a victim impact statement—the scar on his neck was evident,
which the court remarked on. See State v. Hanes, 790 N.W.2d 545, 553-54
(Iowa 2010) (noting serious injury is defined by statute as a bodily injury including
one that “creates a substantial risk of harm” or “causes serious permanent
8
disfigurement” and noting that “[s]carring may in some circumstances rise to the
level of serious permanent disfigurement”).
Here, Dahl was charged with a willful injury causing serious injury
pursuant to Iowa Code section 708.4(1). Under Iowa Code section 702.11, the
charged crime is a forcible felony. Id. at 551. Iowa Code section 907.3 prohibits
the use of a deferred judgment and probation as sentencing options for a forcible
felony such as willful injury causing serious injury. Id. The court’s statements
that Dahl was “lucky” do nothing more than acknowledge that by entering the
guilty plea to the willful injury causing bodily injury, in violation of Iowa Code
section 708.4(2), Dahl avoided the harsher sentence of the original charge. See
Iowa Code § 702.11(2)(a) (specifically excluding violation of section 708.4(2)
from definition of forcible felony). Dahl acknowledged as much in his plea
hearing when he agreed that he had more to gain by pleading guilty than going to
trial and that he wanted to take advantage of the plea bargain. See Comm. on
Prof’l Ethics & Conduct of the Iowa State Bar Ass’n v. Sturgeon, 487 N.W.2d
338, 340 (Iowa 1992) (“An Alford plea allows a defendant to plead guilty without
admitting the elements of the offense. In such a plea the defendant
acknowledges the evidence strongly negates the defendant’s claim of innocence
and enters the plea to avoid a harsher sentence.”).
C. Ineffective-assistance-of-counsel claim. In State v. Fannon, 799
N.W.2d 515, 520 (Iowa 2011), our supreme court recognized that violations of
“either the terms or the spirit of the plea agreement” require reversal of the
conviction or vacation of the sentence. There, as part of the plea agreement, the
State had promised to make no sentencing recommendation. Fannon, 799
9
N.W.2d at 518. However, a different prosecutor appeared at sentencing and
made a recommendation but withdrew that recommendation and “le[ft] the matter
of consecutive versus concurrent up to the court.” Id. The supreme court
vacated the sentence imposed and remanded for resentencing, finding the State
had breached the plea agreement, which could not be cured by the withdrawal of
the prosecutor’s comments. Id. at 522, 524.
Dahl argues the State’s recommendation of a prison sentence and
comments about Dahl entering into an Alford plea violated the plea agreement
here. We disagree. The plea agreement allowed each party to argue for an
appropriate sentence, which the State did. We affirm.
AFFIRMED.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIE MILLER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-0398
[August 20, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562018CF000798A and 562018CF001739A.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Willie Miller, Live Oak, appellant.
No appearance filed for appellee.
PER CURIAM.
Affirmed.
MAY, CONNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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698 F.2d 1230
Furianiv.Fogarty
81-5251
UNITED STATES COURT OF APPEALS Ninth Circuit
1/12/83
1
C.D.Cal.
AFFIRMED
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748 A.2d 829 (2000)
Frank MARTELLUCCI, IV
v.
FEDERAL DEPOSIT INSURANCE CORPORATION.
No. 98-586-Appeal.
Supreme Court of Rhode Island.
April 11, 2000.
*830 Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Stephen P. Levesque, Steven A. Moretti, for Plaintiff.
Robert P. Corrigan, Providence, for Defendant.
OPINION
PER CURIAM.
The public-safety-officer's rule, when applicable, bars police officers, firefighters, and other public-safety officials from bringing tort actions against property owners and other alleged wrongdoers if the negligent conduct of such parties injures the officer when he or she is responding to or investigating some work-related emergency.[1] Here, the police-officer plaintiff, Frank Martellucci, IV (Martellucci), appeals from the entry of summary judgment in favor of the defendant, Federal Deposit Insurance Corporation (FDIC). Martellucci contends that the Superior Court erred in its application of the rule to bar his claims. We ordered the parties to show cause why we should notdecide this appeal summarily. After reviewing their submissions and considering their oral arguments, we conclude that no such cause has been shown. Hence, we proceed to decide the appeal at this time.
Facts and Travel
On March 17, 1992, Martellucci was on duty as a Cranston police officer when he responded to a silent alarm in an office building at 2220 Plainfield Pike in Cranston. A company called Insurance Resources (IR) occupied the office protected by this alarm. IR rented this office from the FDIC, which had taken control of the property as a liquidating agent from the owner, First Mutual Bank for Savings. While he was responding to the alarm, Martellucci stepped into a pothole in the building's parking lot and injured himself.
Martellucci sued the FDIC for negligent maintenance of the parking lot. After three years of discovery, the FDIC moved for summary judgment, arguing that even when the court viewed the facts in the light most favorable to Martellucci, the public-safety-officer's rule barred him from recovering on his tort claims. A Superior Court motion justice agreed, granted the FDIC's motion, and entered judgment in its favor. On appeal, Martellucci asserts that the motion justice erred in her application of the rule.
Analysis
For the public-safety-officer's rule to bar an injured officer's claims against an alleged tortfeasor, defendant must establish that: "(1) the officer was injured in the course of performing tasks relating to his or her employment, (2) the risk of injury was one that the officer could reasonably anticipate would arise in the dangerous situations that the officer's employment typically required him or her to encounter, and (3) the alleged tortfeasor was the individual responsible for bringing the officer to the scene of a potential crime, fire, or other emergency where the injury then occurs." Day v. Caslowitz, 713 A.2d 758, 760 (R.I.1998).
In Day, the rule barred a police officer from suing a homeowner for damages that *831 resulted when he slipped and fell on an icy walkway after responding to a security alarm. Id. at 759. The officer argued that the condition that caused his injuries was not the security alarm but the ice-covered walkway. Because that condition did not create the occasion for his presence at the scene, the public-safety-officer's rule, he suggested, should not preclude his claim. Id. at 760. We disagreed, reasoning that "the rule has not been limited to barring claims based upon the very same alleged negligence (if any) that occasioned the officer's presence at the scene." Id. Moreover, we reiterated in Day that, as a matter of law, police officers "assume all normal risks inherent in their duties when they accept their positions * * *." Id. (quoting Mignone v. Fieldcrest Mills, 556 A.2d 35, 39 (R.I.1989)).
Although the facts of Day were similar to those in the case at bar, Martellucci attempts to distinguish his case by arguing that, in contrast to Day, the alleged wrongdoer in this case was not the party responsible for installing the alarm that brought the officer to the property. Thus, even though Martellucci does not dispute the existence of the first two elements for applying the public-safety-officer's rule, he asserts that the court erred in its application of the third element because the FDIC was not the entity "responsible for bringing the officer to the scene of a potential crime * * *." Day, 713 A.2d at 760. On the contrary, he asserts, it was IR, the commercial tenant whose silent alarm summoned Martellucci to the scene, that was the entity responsible for bringing him to the parking lot. Therefore, he contends, the FDIC, in its capacity as IR's landlord and liquidating agent for the property, should be treated as an independent third-party tortfeasor that is not entitled to invoke the rule's protection. Cf. Aetna Casualty & Surety Co. v. Vierra, 619 A.2d 436, 439-40 (R.I.1993) (refusing to apply the rule when a police officer was injured by an uninsured motorist whose car struck the officer while she was directing traffic at an accident scene).
In Vierra, a police officer was allowed to recover under the uninsured motorist provisions of her automotive liability policy because the uninsured motorist whose car struck her was not "the individual whose conduct gave rise to the very need for [the officer's] services," on that occasion. 619 A.2d at 440. In other words, because the alleged tortfeasor in Vierra was not "the individual who created the dangerous situation which brought the police officer or firefighter to the crime scene, accident scene, or fire," we determined that the rule did not apply. Id. at 439. Martellucci argues that the application of this third prong of the Vierra test also should allow him to proceed in his suit against the FDIC.
But Vierra is distinguishable from this case. There, we held that the rule did not bar the officer from suing an alleged tortfeasor (and thus, from recovering uninsured-motorist benefits from his own insurer) because the officer's injury was caused by a subsequent and independent tortious act, one that was unconnected to the circumstances that brought the officer to the accident scene. Id. at 438. Thus, we held that the rule was inapplicable because "[t]he injustice [of allowing the public-safety officer to sue] arises when a police officer or firefighter seeks to recover from the individual who created the need for his or her employment, not in situations in which a tortfeasor by way of a subsequent and independent act of negligence injures one of these officials." Id.
But here the alleged act of negligence the FDIC's failure to maintain the parking lot was not independent of and subsequent to the need for Martellucci's employment at this location. Rather, the FDIC's status (1) as landlord to the tenant whose activated alarm brought Martellucci to the scene and (2) as liquidating agent for the property on which Martellucci was injured indicates that its alleged negligence in failing to maintain the property was both related to and antecedent to the *832 need for Martellucci's employment at this location. Thus, in its capacity as IR's landlord and as liquidating agent for the property that included IR's leasehold, the FDIC's alleged negligence in failing to maintain theparking lot that served IR's office was not a "subsequent and independent act of negligence" that had nothing to do with "the individual who created the need for [Martellucci's] employment." Id. As the motion justice reasoned, Vierra's third prong was never intended to impose a literal requirement for the alleged tortfeasor to have called the public-safety officers to the scene in order for the rule to apply. Nor, as the motion justice remarked, does the rule's application turn on "whether someone has a leasehold versus a fee simple" interest in the property where the injury occurs. Rather, the third prong of the rule "that the tortfeasor is the individual who created the dangerous situation which brought the police officer or firefighter to the crime scene, accident scene, or fire," id. at 439 is meant to assure that some nexus or connection exists between the alleged wrongdoer and the event or emergency that caused the public-safety officer's presence at the location where the officer is injured. As the motion justice concluded: "The gist of that third prong is to make sure there is some connection between the property itself and the police officer being on the property as a result of a call to the property."
For these reasons, we are of the opinion that the motion justice did not err in applying the rule to bar Martellucci's claims in this case. As we explained in Day, when the officer's injury resulted from "the risks inherent in responding to potential emergencies like this one," the public-safety-officer's rule should preclude the action against an alleged tortfeasor who had no opportunity to prepare the property for the officer's presence. Day, 713 A.2d at 762. To bar the rule from applying when, as here, some cause or entity other than the allegedly negligent property owner, occupier, or other responsible party calls the police or firefighters to a potential emergency would defeat the underlying purpose of the rule.
Indeed, if we were to accept Martellucci's argument, we would have to countenance injured-on-duty police officers and firefighters maintaining lawsuits against allegedly negligent propertyowners and occupiers merely because they did not happen to cause the officers' arrival at a potential crime scene or fire site. Under this reasoning, a police officer injured while investigating suspicious activity observed at a house could sue an allegedly negligent homeowner if a neighbor happened to call the police regarding that activity, but not when an alarm, installed by the owners, summoned the police to the scene. Similarly, we would have to allow an injured public-safety-officer's suit against an allegedly negligent property owner to proceed when a tenant or some third party reports a fire on the premises but not if the landlord's smoke alarm triggers the firefighters' presence at the scene. Because such distinctions based on the precise nature of the defendant's property interest and on who or what has caused the public-safety officers to arrive at the scene where an officer is injured run counter to the spirit and purpose of the rule, we hold that the motion justice did not err in rejecting this argument.
We also note that, in related circumstances, other courts have spurned contentions seeking to evade the rule's application. For example, in deciding whether to apply the rule, some courts have refused to parse the various common-law classifications that govern the duty of care owed to third parties by those who possess a property interest in the premises. See, e.g., Rosa v. Dunkin' Donuts of Passaic, 122 N.J. 66, 583 A.2d 1129 (N.J.1991). In Rosa, a police officer slipped on a white powdery substance in a Dunkin' Donuts store and suffered personal injuries while carrying an unconscious employee from the store. The court barred the officer from pursuing a tort claim against the store owner, indicating *833 that "technical formalistic classifications used to define varying duties of care" owed by owners to those who were present on their premises were not applicable in emergency situations. Id. at 1131. Instead, the court held, the property to which the police were summoned only had to have some connection with the officer's presence there to absolve those possessing an interest in the premises from liability. The court deemed it unfair for those possessing a property interest to be responsible in tort because a "policeofficer is summoned in circumstances of emergency where the landowner has not had time to prepare the premises for his [or her] arrival." Id. at 1132 (quoting Maryland Casualty Co. v. Heiot, 224 N.J.Super. 441, 540 A.2d 920, 922 (1988)).
Similarly, after the activation of IR's silent alarm, the FDIC in this case, as landlord and liquidating agent for the property, did not have time to prepare the parking lot for the police officer's arrival on the premises in response to the potential emergency signaled by the alarm. Thus, regardless of the precise nature of the FDIC's property interest and its noninvolvement in summoning the police to the property, it still should not be held responsible to this officer for its alleged ordinary negligence in failing to maintain the parking lot.
As we stated in Vierra, public-safety officers "assume those risks which are known or can reasonably be anticipated to arise in the dangerous situation which their employment requires them to encounter." Vierra, 619 A.2d at 438. Here, it would be reasonable for a police officer responding to a nighttime alarm on private property to have known about or to have anticipated the possibility of falling or tripping over one or more unseen impediments on unfamiliar terrain at the scene of the alarm.
Conclusion
Thus, because the rule precludes recovery, we deny the appeal and affirm the judgment in favor of the FDIC.
NOTES
[1] See, e.g., Day v. Caslowitz, 713 A.2d 758 (R.I.1998). Having evolved from the common-law firefighter's rule, the rule has been referred to variously as the firefighter's rule, the police-officer's rule, or more broadly, the public-safety-officer's rule. Id. at 759. Although courts originally adopted the rule with respect to firefighters, most jurisdictions now also apply it to preclude actions by police officers and other public-safety officials against negligent property owners. See, e.g., Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984); Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987); Berko v. Freda, 459 A.2d 663 (N.J.1983). In Aetna Casualty & Surety Co. v. Vierra, 619 A.2d 436, 439 (R.I.1993), our Court joined these other jurisdictions in similarly extending the rule to bar police-officer suits when the conditions for its application are satisfied. See id. (collecting cases).
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94 U.S. 202 (1876)
COMMISSIONERS OF JOHNSON COUNTY
v.
JANUARY.
Supreme Court of United States.
Mr. Nelson Cobb for the plaintiffs in error.
Mr. James Grant, contra.
*203 MR. JUSTICE SWAYNE delivered the opinion of the court.
This is an action brought to recover the amount of certain coupons taken from bonds issued by the plaintiffs in error to the St. Louis, Lawrence, and Denver Railroad Company, of which bonds the defendant in error was the holder.
By consent of parties the case was tried by the court without a jury. The court found the facts, and gave judgment for the *204 defendant in error. The plaintiffs in error thereupon brought the case to this court for review.
There is no dispute between the parties as to the leading facts of the controversy. The proper authorities submitted the question to the electors of the county, whether the county should subscribe for $100,000 of the stock of the company, to be paid for by issuing its bonds to that amount. The election was ordered on the 25th of January, 1869, and took place on the 6th of April, 1869. The proposition was sanctioned by a majority of more than two to one. The bonds were thereafter executed and deposited as escrows. On the 22d of May, 1871, the commissioners made an order that they should be delivered, and they were delivered accordingly. A certificate of stock was issued and delivered by the company, and is still held by the county. It has never been surrendered, nor offered to be surrendered. The bonds were signed by the chairman and clerk of the board of commissioners, and attested by the county treasurer. There was in each one a recital "that this bond is executed and issued by virtue of, and in accordance with, an act of the legislature of Kansas, entitled `An Act to authorize counties and cities to issue bonds to railroad companies,' approved Feb. 25, 1868, and is in pursuance of, and in accordance with, the vote of a majority of the qualified electors of the county of Johnson, at a regular election, held on the sixth day of April, 1869." Each one bore, also, the following indorsement:
"I, A. Thoman, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued; that the signatures thereto are genuine; and that the bond has been duly registered in my office, in accordance with an act of the legislature, entitled `An Act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads or other works of internal improvements, and providing for the registration of such bonds and the repealing of all laws in conflict therewith,' approved March 2, 1872. Witness my hand and official seal, this twenty-first day of March, 1872."
The certificate is authenticated by the official signature and seal of the auditor.
*205 The road was finished, and has since been in operation. The county and its inhabitants are in the enjoyment of the benefits arising from it.
There is no imputation of any taint of fraud upon either side.
The county authorities paid the interest upon the bonds for a time.
The county has received what it contracted to receive, and has paid what it contracted to pay.
The plaintiff in the suit is the bona fide holder of the bonds.
A case of stronger equity can hardly exist.
Several objections have been taken to the validity of the bonds. They have been elaborately and ably argued upon both sides. The view which we take of the controversy renders it necessary to advert to but one of the objections, and to that one briefly. Our judgment will be placed upon a different ground.
The act mentioned in the recital in the bond was erroneously referred to. That act does not affect the case, and may be laid out of view. The act of Feb. 25, 1868, was in force when the order for the election was made. It gave ample authority for making the order, and for all that was subsequently done. It is insisted that this act was repealed by the act of Feb. 27, 1869; that the order for the election fell with the act repealed, and that, consequently, the election was held without any legal authority. Such repeal, so far as regards the authority to make the order, and the continuing efficacy of the order, is strenuously controverted upon the other side.
Whatever may be the fact, we are satisfied that after the passage of the act of 1869 all the proceedings were in substantial conformity to its requirements. It was in force before the election was held and until after the bonds were issued and delivered.
This act, like the act of 1868, authorized the commissioners to issue the bonds when the requirements of the law had been complied with. They were thus constituted a tribunal for the adjustment of all questions touching the subject. They were clothed with the power and charged with the duty to decide them. No appeal or review was provided for. Their issuing the bonds was the reflex and embodiment of their judgment *206 that it was proper to do so. It implies a prior determination to that effect. The fact carries with it this presumption. The bonds recite that they were issued in conformity to law, and in pursuance of the election held on the 6th of April, 1869. It is true they refer to the wrong statute, but falsa demonstratio non nocet. The bad here does not hurt the good. The act of the commissioners was the act of the county, and the county is conclusively bound by what they have done. As between the county and a bona fide holder, no question involving the infirmity of the securities can be raised.
The principle of estoppel applies, and it precludes the obligor from interposing such a defence.
Whether the certificate of the auditor of State, indorsed on the bonds, has or has not the same effect, is a point not necessary in this case to be considered. Taking and holding the certificate of stock, issuing and delivering the bonds, and paying the interest for a time, cured the defect as to the order for an election, if any such existed. Under the circumstances, a bona fide taker had a right to presume that every thing had been properly done which was necessary to the validity of the bonds. When this suit was instituted, the objections which have been made were too late.
The views we have expressed have been repeatedly sustained by the adjudications of this court. Supervisors v. Schenk, 5 Wall. 772; Olcott v. The Supervisors, 16 id. 698; City of Lexington v. Butler, 14 id. 283; Pendleton County v. Amy, 13 id. 298; Myers v. Muscatine, 1 id. 385; Knox v. Aspinwall, 21 How. 544; Lind v. The County, 16 Wall. 6; St. Joseph's Township v. Rogers, id. 644; Pine Grove v. Talcot, 19 Wall. 666.
We refer especially to the closing part of the opinion in the case last mentioned.
Judgment affirried.
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211 P.3d 836 (2009)
STATE of Kansas, Appellant,
v.
Miguel DIAZ-RUIZ and
Serafin Diaz-Gomez, Appellees.
Nos. 100,926, 100,927.
Court of Appeals of Kansas.
July 17, 2009.
*838 Tony Cruz, assistant county attorney, and Steve Six, attorney general, for appellant.
Steven C. Staker, of North Central Regional Public Defender's Office, and Linda M. Barnes-Pointer, of Junction City, for appellees.
Before MARQUARDT, P.J., MALONE and CAPLINGER, JJ.
CAPLINGER, J.
The State appeals from the district court's order suppressing evidence discovered in the search of the defendants' vehicle following a traffic stop. Because we agree that the scope of the stop was unlawfully extended, and the subsequent consent to search was not sufficiently attenuated from the prior unlawful detention to purge the taint of the illegality, we affirm the suppression.
I. Factual and procedural background
The district court held a combined hearing on the individual suppression motions filed by the defendants, Miguel Diaz-Ruiz and his father, Serafin Diaz-Ruiz. The following factual summary is derived from two sources: (1) the testimony of Kansas Highway Patrol Trooper Christopher Shane Nicholas, the only witness to testify at the hearing; and (2) the videotape of the traffic stop, which was admitted at the hearing.
Nicholas was parked in the median observing traffic on Interstate 70 in Geary County when he saw a pickup truck traveling eastbound with a ladder strapped in the bed of the truck. Although the ladder did not move, Nicholas followed the truck because the ladder was strapped at an angle "and it just it didn't look right."
As Nicholas followed the truck, he saw the ladder move from "side to side." He activated his emergency lights and pulled the truck over based solely on his belief that the ladder was loose and could pose a road hazard in violation of K.S.A. 8-1906.
The videotape of the stop, which began recording as the defendants' truck pulled over to the side of the road, reveals that the ladder did not move as the driver pulled over.
As Nicholas approached the cab of the truck, he gave the ladder a firm tug. Although the ladder moved from "side to side several inches," Nicholas determined the ladder "probably wasn't going to fall off."
Nicholas approached the passenger side of the truck and advised the defendants that he had stopped them because he suspected the ladder was loose. However, Nicholas stated, "I think it might stay where it's at." The videotape confirms this was Nicholas' first and last reference to the ladder.
Nicholas then asked the defendants where they had come from and where they were going. Diaz-Ruiz, the driver, responded that they were traveling to Kansas City. In response to Nicholas' request for a driver's license, Diaz-Ruiz produced a New Mexico identification card. Nicholas then told Diaz-Ruiz, "I'm not going to give you a ticket." Through further questioning, Nicholas ascertained *839 that Diaz-Gomez was Diaz-Ruiz' father and the owner of the truck, and the two men planned to do some remodeling work for Diaz-Ruiz' sister.
After again checking the security of the ladder and other items in the truck bed, Nicholas returned to his patrol car and ran a driver's license check, which revealed that Diaz-Ruiz' driver's license was suspended. Nicholas also claimed he wrote a warning to Diaz-Ruiz for failing to secure his load, but opted to give him only a verbal warning.
However, the videotape reveals that approximately 5-6 minutes later, Nicholas returned to the passenger side of the truck, handed Diaz-Ruiz his documents, and advised him his license was suspended. Nicholas did not, however, give Diaz-Ruiz a written or verbal warning for failing to secure his load. Nor did Nicholas arrest Diaz-Ruiz or give him a citation for driving with a suspended license. Instead, he simply advised Diaz-Ruiz that his father would have to drive. Nicholas did not verify whether Diaz-Gomez had a valid driver's license.
Without waiting for the two men to switch places, Nicholas then asked Diaz-Ruiz where his sister lived, and repeated that Diaz-Gomez "probably needs to drive if he can." Nicholas then said, "all right," took a step away from the truck, but immediately turned back to the passenger window and asked the defendants if they "would mind answering a few more questions." Diaz-Ruiz nodded affirmatively.
Nicholas then proceeded to question the men about their remodeling plans and whether they had guns, drugs, or anything illegal in the truck. After Diaz-Gomez responded negatively, Nicholas asked for consent to "inspect his load." Diaz-Ruiz nodded affirmatively. Nicholas ordered Diaz-Ruiz to put the truck in park and told the defendants to "switch places real quick and just sit here."
The two men remained inside the cab while Nicholas and another officer searched the truck. The officers discovered approximately 300 pounds of marijuana underneath the plywood in the bed of the truck.
Diaz-Ruiz and Diaz-Gomez were each charged with one count of possession of marijuana with intent to deliver in violation of K.S.A.2008 Supp. 65-4163(a)(3) and one count of no drug tax stamp in violation of K.S.A. 79-5204(a) and K.S.A. 79-5208.
Prior to trial, both defendants moved to suppress evidence seized in the search, claiming (1) the initial traffic stop was not supported by reasonable suspicion; (2) the stop lasted longer than necessary to effectuate its purpose; (3) they did not consent to the search; and (4) even if they did consent, that consent did not purge the taint of the unlawful detention.
The district court concluded the initial traffic stop was justified based on the trooper's concern that the ladder was not properly secured. However, the trial court determined that after Nicholas dispelled his concern by checking the ladder, he had no further basis to continue the stop. Thus, the court held that Nicholas' subsequent questioning of the defendants and review of documentation unlawfully extended the scope of the stop. Alternatively, the district court concluded that even if the scope of the stop was not unlawfully extended, the defendants' consent to search was involuntary. Finally, the district court found that if the consent was voluntary, it did not purge the taint of the unlawful detention.
The State appeals the district court's suppression orders in both cases, which have been consolidated for appeal.
II. Discussion
On appeal, the State first challenges the district court's determination that the scope of the stop was unlawfully extended. The State argues that because the initial stop was justified on the basis of a traffic violation, Trooper Nicholas did not exceed the scope of the stop by asking for a driver's license and proof of insurance and checking the validity of the driver's license. The defendants counter that the purpose of the traffic stop was fulfilled when Nicholas determined the ladder was properly secured, and any further detention was unlawful.
This court reviews a district court's decision on a motion to suppress under a dual standard. While we apply a substantial *840 competent evidence standard to the factual underpinnings of the district court's decision, we review the ultimate legal conclusion drawn from those facts de novo. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
Substantial evidence is legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007). We do not reweigh evidence, resolve conflicts in the evidence, or reassess witness credibility. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Accordingly, although we may consider whether a videotape of a traffic stop supports the district court's factual findings, we do not review the videotape in an effort to invade the district court's province of determining witness credibility or weighing the evidence. State v. Hess, 37 Kan.App.2d 188, 191, 153 P.3d 557 (2006).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit the government from conducting unreasonable searches and seizures. State v. Ross, 37 Kan.App.2d 126, 129, 149 P.3d 876, rev. denied 284 Kan. 950 (2007) (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968]).
Generally, evidence obtained, either directly or indirectly, as the result of an unreasonable search or seizure cannot be used against the defendant in a criminal prosecution. See, e.g., Herring v. United States, 555 U.S. ___, 129 S.Ct. 695, 699, 172 L.Ed.2d 496 (2009) (explaining limited applicability of exclusionary rule); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (explaining fruit of the poisonous tree doctrine).
A traffic stop is an investigatory detention, and is a seizure implicating the Fourth Amendment. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). An investigatory traffic stop is reasonable, and thus constitutional, if (1) the stop is justified at its inception and (2) the scope and duration of the stop are reasonably related to the initial justification for the stop. State v. Smith, 286 Kan. 402, 407, 417-19, 184 P.3d 890, cert. denied ___ U.S. ___, 129 S.Ct. 628, 172 L.Ed.2d 639 (2008); State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998).
Preliminarily, we note that neither defendant cross-appealed the district court's conclusion that the initial stop was justified based on Nicholas' concerns that the defendants' ladder was not properly secured. Thus, that issue is not before us on appeal. See K.S.A. 60-2103(h) (to obtain appellate review appellee must file notice of cross-appeal from adverse rulings).
A. The Scope of the Stop Was Unlawfully Extended.
The State argues the scope of the stop was not improperly extended by his request for a driver's license because it is permissible for a law enforcement officer, during a routine stop, to request a driver's license, registration, and proof of insurance, run a computer check, and issue a citation. See Thompson, 284 Kan. at 774, 166 P.3d 1015; Mitchell, 265 Kan. at 245, 960 P.2d 200; State v. DeMarco, 263 Kan. 727, 733-34, 952 P.2d 1276 (1998); see also K.S.A. 22-2402(1) ("Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.").
Further, the State points out that during a lawful traffic stop, a law enforcement officer may inquire about matters unrelated to the justification for the traffic stop, question the driver about his or her travel plans, or allow a drug dog to sniff the outside of the stopped vehicle, as long as those actions do not unreasonably lengthen the duration of the stop. See Arizona v. Johnson, 555 U.S. ___, ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (permitting unrelated questions); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (drug dog sniffs); Mitchell, 265 Kan. at 244, 960 P.2d 200 (permitting questioning "during the time it takes to insure the driver has no warrants and the car is not stolen"); *841 State v. Morlock, 40 Kan.App.2d 216, 226-28, 190 P.3d 1002 (2008) (permitting routine questions about the driver's travel plans if questions are reasonably related to scope of traffic stop and do not alter its nature or duration).
The defendants do not dispute that such actions are proper when an individual is lawfully detained following a traffic stop. Rather, they contend that under the facts of this case, the reason for the stop dissipated when the trooper determined that the ladder was secure. Thus, no further detention was necessary and the trooper unlawfully extended the scope of the stop by questioning the defendants and requesting documentation.
When analyzing whether an officer's actions have exceeded the scope or duration of the stop, courts consider "`whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.'" State v. Kirby, 12 Kan.App.2d 346, 355, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 [1985]).
In suppressing the evidence, the district court relied primarily upon the rationale of United States v. McSwain, 29 F.3d 558 (10th Cir.1994). There, a Utah state trooper stopped the defendant's vehicle because he could not read the expiration date on the temporary registration sticker posted in the window. However, as the trooper approached the vehicle, he determined the sticker was valid and had not expired. Nevertheless, after commenting briefly on the sticker, the trooper requested and received the driver's identification and registration and questioned the defendant and his passenger about their travel plans. The trooper then returned to his patrol car and ran a criminal history check, from which he learned that the defendant had a suspended driver's license and prior convictions for assault and drug and gun violations. 29 F.3d at 559-60.
The trooper then returned to the vehicle and asked the driver another question about his travel plans and whether the defendant and his passenger "were `packing' any alcohol, firearms or drugs." 29 F.3d at 560. Although the defendant responded negatively, the trooper obtained consent to search and ultimately discovered drugs, drug paraphernalia, and a gun. 29 F.3d at 560.
On appeal, McSwain conceded the initial stop was justified, but argued it evolved into an illegal detention after the trooper had dispelled his suspicion regarding the temporary sticker. The Tenth Circuit Court of Appeals agreed, reasoning that the sole purpose of the stop was to ensure the validity of the temporary sticker, and that purpose was fulfilled when the trooper approached the vehicle and observed that the sticker was valid. 29 F.3d at 561. Thus, the trooper's further questioning of the defendant about his vehicle and travel plans, as well as the trooper's request for defendant's license and registration, exceeded the scope of the stop's underlying justification. 29 F.3d at 561.
The McSwain court specifically recognized that an officer conducting a routine traffic stop is permitted to ask about identity and travel plans, and to request a driver's license and vehicle registration, run a computer check, and issue a citation. 29 F.3d at 561. However, the court found such cases inapposite as they involved situations "in which the officer, at the time he or she asks the questions or requests the driver's license and registration, still has some `objectively reasonable articulable suspicion' that a traffic violation `has occurred or is occurring.'" 29 F.3d at 561.
Significantly, the court in McSwain rejected the State's suggestion that the court's holding would "require the officer to `stop a vehicle, approach the vehicle on foot, observe it, then walk away, ... leaving the stopped citizen to wonder what had just occurred.'" 29 F.3d at 562. The court pointed out that its ruling would not prevent an officer in this situation from explaining the reason for the initial detention and then allowing the driver to continue on his or her way without asking for a license and registration and without asking about travel plans. 29 F.3d at 562. Finally, the court held that the defendant's subsequent consent to search the car was *842 insufficient to purge the taint of the unlawful detention, and reversed the district court's denial of the motion to suppress. 29 F.3d at 562-64.
The Tenth Circuit was presented with similar factual circumstances in United States v. Edgerton, 438 F.3d 1043 (10th Cir.2006). There, a Kansas highway patrol trooper stopped the defendant's vehicle at night because he could not read the state of origin or tag number on the vehicle's temporary registration tag. The trooper believed the defendant had failed to display a "clearly visible" tag in violation of K.S.A. 8-133. 438 F.3d at 1045-46.
However, when the trooper approached the vehicle, he could see that the temporary tag was issued by the State of Colorado and appeared to be valid. Nevertheless, the trooper approached the defendant, asked for license and registration, and returned to his patrol car to prepare a warning ticket. When the trooper returned the defendant's license and registration and handed her the warning ticket, he obtained consent to search the vehicle's trunk and ultimately discovered over 20 kilograms of cocaine.
The Edgerton court concluded the initial stop was valid, but found the defendant was unlawfully detained after the trooper determined she had a valid, properly displayed, temporary tag. Notably, the court specifically disagreed with the State's argument that the trooper's inability to read the temporary tag because "it was dark out" constituted a violation of K.S.A. 8-133. 438 F.3d at 1051. The court distinguished cases finding violations of the statute when the tag was partially obscured by a bumper or covered with dirt.
Ultimately, the Edgerton court reversed the district court's denial of the defendant's motion to suppress, finding that the reasons for the stop dissipated after the trooper was able to read the tag and determined it did not violate K.S.A. 8-133. 438 F.3d at 1051. However, in dicta, the court noted that even a brief encounter between an officer and driver, as authorized by McSwain, "might independently give rise to facts creating reasonable suspicion of criminal activity, thus warranting further investigation." 438 F.3d at 1051.
Recently, a panel of this court applied the reasoning of McSwain and Edgerton in City of Manhattan v. Enlow, No. 100,104, 2009 WL 596555, unpublished opinion filed March 6, 2009. In Enlow, the defendant's vehicle was stopped because the officer believed a piece of paper taped to the back window did not appear to be a valid temporary registration. However, after advising the defendant of the reason for the stop, the officer examined the paper and found it to be a valid auctioneer's transport permit. Nevertheless, because the officer was "ignorant of the law authorizing auctioneer's transport permits," he continued to question the defendant. Enlow, slip op. at 2.
The Enlow panel concluded the valid traffic stop evolved into an unlawful detention after the officer learned that the paper taped to the window of the vehicle was an auctioneer's transport permit, despite the officer's erroneous belief that a violation had occurred. Enlow, slip op. at 4.
The panel reasoned that once the officer read Enlow's auctioneer's tag, he was placed in the same position as that of the officers in Edgerton and McSwain, who approached the vehicle and saw the defendant's registration was valid. As in those cases, the court found the duration of the stop was unlawfully extended by asking for Enlow's name and driver's license. Enlow, slip op. at 6.
Nevertheless, the State argues this case is factually distinguishable from McSwain and suggests that the facts here are more closely analogous to those before the court in United States v. Lyons, 510 F.3d 1225 (10th Cir. 2007).
There, a Kansas highway patrol trooper noticed the defendant's vehicle was dirty and salty, but had a clean spare tire attached to its undercarriage. Based on his experience, the trooper suspected the spare tire might contain drugs. Further, while the trooper was able to read the license plate, he could not read the expiration sticker. Thus, the trooper pulled the vehicle over based on his suspicion about the tire and his belief that *843 the dirty tag constituted a violation of K.S.A. 8-133.
As the trooper walked up to the stopped vehicle, he wiped the dirt off the tag before approaching the driver's side window and advising the defendant he had stopped the vehicle for an illegible tag. The trooper requested the defendant's license and registration and obtained the rental agreement. While obtaining the documents, the trooper noticed several items which he believed to be common tools of the drug-trafficking trade. And, as the trooper returned to his patrol car, he more closely examined the spare tire, noticing that the rim was salty and dirty but the tire was clean, and that the tire contained fingerprints and tool marks.
The trooper performed a criminal history check, completed a warning ticket, learned that the defendant had prior drug possession and trafficking convictions, and noticed the rental agreement was 2 weeks overdue. The trooper returned the defendant's documents, handed him the warning ticket and thanked the defendant and passenger for their time. After the trooper had taken a step back from the vehicle, the passenger asked where to find the nearest car wash. The trooper then stepped back toward the vehicle and advised her the nearest car wash was in Topeka. The trooper then stepped back from the vehicle again and asked the defendant if he had any illegal items in the truck and if he could "look in the back." 510 F.3d at 1231. The defendant responded that he had no drugs and consented to the trooper's request to look in the back. Eventually, the trooper discovered 51 pounds of cocaine in the spare tire.
The Tenth Circuit in Lyons affirmed the validity of the initial stop based on the trooper's reasonable suspicion of a violation of K.S.A. 8-133. In a footnote, the Lyons court distinguished Edgerton for the proposition that "no violation of Kan. Stat. Ann. § 8-133 occurs when the officer's inability to read a license plate or temporary registration tag is due to an external condition ... as opposed to a factor within the defendant's control, i.e., mounting a license plate too low or leaving it covered with dirt." 510 F.3d at 1234 n. 3.
Based on the trooper's suspicion of a violation of K.S.A. 8-133, the court further concluded the trooper could temporarily detain the defendant, request his driver's license and registration, run a criminal history check, and issue a warning ticket. 510 F.3d at 1235. The Court distinguished McSwain and Edgerton on the basis that in each of those cases the officers' reasonable suspicion "evaporated once they observed no violation had occurred" and thus the officers had no reason to detain the defendants to perform the tasks incident to an ordinary traffic stop. 510 F.3d at 1236.
In contrast, the Lyons court pointed out that in the case before it, the trooper's suspicion that the defendant had an illegible tag "did not evaporate, but rather was confirmed, once he stopped Lyons' vehicle"; thus, the subsequent detention was lawful. 510 F.3d at 1236. Finally, the court also concluded the trooper had reasonable suspicion of illicit drug activity, based on the totality of the circumstances, to detain the defendant after returning his documents and to request consent to search.
In sum, Lyons stands for the unremarkable proposition that when a law enforcement officer has reasonable suspicion that a traffic violation has occurred, and that suspicion has not dissipated before the officer speaks with the driver, the officer is permitted to detain the driver, request a driver's license, run a computer check, and issue a citation, if appropriate. Lyons, 510 F.3d at 1236.
We find the facts in this case to be more analogous to the facts in McSwain, Edgerton, and Enlow than the facts in Lyons. Trooper Nicholas cited only one basis for the stop, i.e., that the ladder was loose in violation of K.S.A. 8-1906. That statute provides:
"(c) No person shall operate on any highway any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent the covering or load from becoming loose, detached or in any manner a hazard to other users of the highway."
When Nicholas approached the truck, he inspected and jiggled the ladder, and determined that it "probably wasn't going to fall off." He confirmed that the ladder "probably *844 wasn't going anywhere" when he spoke to the defendants, advising them of the reason for the stop. Moreover, the videotape confirms that the ladder was strapped into the truck bed and did not present a hazard to others on the highway. Significantly, Nicholas never mentioned the ladder again, and he did not give the defendants either a verbal or written warning for violating 8-1906(c). Under these circumstances, we find substantial evidence supports the district court's factual finding that the trooper dispelled his suspicion of a possible violation of K.S.A. 8-1906(c) before he approached the defendants.
The State argues that if we hold that any further questioning or requests by the trooper were unlawful after the reason for the stop was dispelled, we are essentially "penalizing" the trooper for something he was not "required" to do, i.e., checking the ladder before approaching the driver. The State suggests hypothetically that if an officer stops a vehicle for a defective tag lamp and "out of curiosity" fiddles with the tag lamp and gets it to work, then the "officer would be obligated to simply leave the scene without taking any further action."
We disagree. In the hypothetical offered by the State, the officer arguably would be permitted to cite the driver for a defective tag light since technically, the light was not working. More importantly, as the Tenth Circuit noted in McSwain, when an officer dispels the reasons for the stop before approaching the driver, he need not simply leave the scene with no further action, as the State suggests here. Rather, the officer can and should approach the driver of the vehicle to briefly explain the reason for the stop and to explain that the reason was dispelled with further investigation.
In conclusion, because the trooper's reasonable suspicion evaporated once he observed that the ladder was secure, the trooper had no reason to detain the defendants to perform the tasks incident to an ordinary traffic stop. Thus, the trooper unlawfully extended the scope of the stop by questioning the defendants regarding their travel plans and requesting identification.
B. The Consent to Search Was Not Sufficiently Attenuated from the Unlawful Seizure.
The State next argues the district court erred in finding the defendants did not voluntarily consent to the trooper's request to search the vehicle. However, the State premises this argument on the State's claim that the entire detention was lawful-a claim which we have rejected.
Because we have found the scope of the stop was unlawfully extended, we must next consider whether the State has established a break in the causal connection between the illegality and the evidence obtained as a result of it. See State v. Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006).
An unconstitutional seizure may taint the consent to search as well as any fruits of the encounter if the nature of the seizure renders the consent to search involuntary. Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure when the connection between the lawless conduct of law enforcement officers and the discovery of the challenged evidence is so attenuated as to dissipate the taint. Smith, 286 Kan. at 419, 184 P.3d 890.
Here, the district court found the State failed to establish a sufficient break between the unlawful detention and the consent to search. The State does not challenge this ruling in its appeal brief but, instead, simply argues the court erred in finding the consent was involuntary. Thus, while we could allow the district court's determination to stand without further analysis, for the sake of completeness we have examined the record and we conclude the district court correctly resolved this issue.
Whether the taint of a prior illegality was purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact and we will uphold the trial court's finding if supported by substantial competent evidence. Smith, 286 Kan. at 420, 184 P.3d 890; State v. Childers, 222 Kan. 32, 40-41, 563 P.2d 999 (1977).
*845 In determining if a defendant's consent was tainted by a preceding illegal search or seizure, we consider: "1) the temporal proximity between the police illegality and the consent to search; 2) the presence of intervening circumstances; and particularly 3) the purpose and flagrancy of the official misconduct." United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir.1994) (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 [1975]); see also State v. Martin, 285 Kan. 994, 1003, 179 P.3d 457 (2008) (applying attenuation doctrine).
Although the district court arrived at its conclusion that the taint was not purged without performing a taint analysis, we find the record on appeal sufficient to permit us to do so. See Martin, 285 Kan. at 1003, 179 P.3d 457 (when record on appeal is sufficient, appellate court is empowered to engage in a taint analysis despite district court's failure to do so).
The videotape of the stop and Nicholas' testimony reveal that after returning Diaz-Ruiz' documents and advising him his driver's license had been suspended, Nicholas again asked Diaz-Ruiz where his sister lived. The trooper also suggested that because of the suspended license, Diaz-Ruiz' father, Diaz-Gomez, "probably needs to drive if he can." Nicholas did not issue Diaz-Ruiz a citation for driving with a suspended license, nor did he determine whether Diaz-Gomez had a driver's license.
Nicholas then took a step away from the truck, but approximately 2 seconds later he turned back to the passenger window and asked the defendants if they would mind answering a few more questions. The trooper then sought and obtained agreement from Diaz-Ruiz to "inspect his load."
1. Temporal proximity and intervening circumstances
Because the request for consent and subsequent search of the defendants' vehicle occurred within seconds of the purported termination of the traffic stop, this factor heavily favors the district court's finding of an insufficient break between the illegal seizure and the search. See, e.g., McSwain, 29 F.3d at 563 (discussing several cases in which taint was not purged when "only minutes" or "only moments" passed between illegal detention and subsequent consent to search). Further, no "intervening circumstance" occurred in those very brief moments. See 29 F.3d at 563.
2. The purpose and flagrancy of the official misconduct
The trooper's actions throughout the stop also support the district court's finding that Diaz-Ruiz' consent to search did not purge the taint of the illegal seizure. See Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407 (important question in determining whether evidence is tainted is whether police have exploited illegal search or seizure to obtain evidence).
Trooper Nicholas offered only one justification for the traffic stop, i.e., his concern that the defendants' ladder was not properly secured. However, Nicholas determined almost immediately after the stop that the ladder "probably wasn't going to fall off" and he so advised the defendants. This was the only time Nicholas mentioned the ladder.
However, Nicholas then peppered the defendants with questions wholly unrelated to the ladder, including where they had come from, where they were going, who owned the truck, the purpose of their visit, and how long they would be at their destination.
Further, at the suppression hearing, Nicholas testified inconsistently with his actions as revealed by the videotape. According to Nicholas, he gave Diaz-Ruiz a warning for failure to secure his load. However, the videotape shows that just after requesting Diaz-Ruiz' license, Nicholas only advised Diaz-Ruiz, "I'm not going to give you a ticket."
Nicholas also testified that while he wrote Diaz-Ruiz a warning for failing to secure his load, he opted instead to give him a verbal warning. In fact, the videotape reveals that the trooper never gave either of the defendants a verbal or written warning for failing to secure their load. Instead, as discussed, he clearly told them he didn't think the ladder *846 "was going anywhere" and never mentioned the ladder again.
Finally, at the preliminary hearing and again at the suppression hearing, Nicholas produced a written warning which he claimed he wrote during the stop but did not give to Diaz-Ruiz. Significantly, the warning did not contain a sequential number indicating when it was written, and Nicholas testified at the preliminary hearing that he never gave the warning to the prosecutor.
Finally, and perhaps most disconcerting, even after Nicholas learned that Diaz-Ruiz was driving on a suspended license, he merely notified him that his license was suspended and advised him that Diaz-Gomez would "probably [need] to drive." Moreover, at the suppression hearing, Nicholas conceded that he had no intention of arresting Diaz-Ruiz or giving him a warning for driving on a suspended license. Further, the videotape indicates that Nicholas never verified that Diaz-Gomez had a valid driver's license.
Moreover, while Nicholas testified that his questions regarding travel plans and his request for identification and registration were "routine," the facts belie his testimony. While it may be routine to ask travel questions while obtaining identification and writing up a warning or ticket when a traffic violation is suspected, that is not what Nicholas did here. Instead he asked about travel plans immediately after he advised the defendants of the reason for the stop and told them the ladder "wasn't going anywhere." Moreover, the trooper asked about travel plans before he ever even requested a driver's license from the driver. And, when Nicholas discovered the license was suspended, he took no action other than to advise Diaz-Ruiz that he probably should trade places with his father, who was not asked for a driver's license.
These facts establish that Nicholas' motivation to continue the stop after the reasons for the stop had dissipated was not, as the trooper claimed, routine questioning and review of documents in order to prepare a warning. Rather, the facts demonstrate that the trooper was instead motivated by a desire to search the vehicle of these two Hispanic men. Thus, we conclude the factual circumstances relevant to the third factor the purpose and flagrancy of the official misconduct also provide substantial competent evidence supporting the district court's determination that the consent to search was not sufficiently attenuated from the prior illegal conduct to purge the taint of that illegality.
III. Conclusion
In summary, we find that the scope of the stop was unlawfully extended once Trooper Nicholas had dispelled his suspicion as to the reason for the stop. Further, Diaz-Ruiz' subsequent consent to search was not sufficiently attenuated from the prior unlawful detention so as to purge the taint of the unlawful detention. Accordingly, the district court properly suppressed the evidence discovered during the search of the vehicle.
Affirmed.
MALONE, J., concurring.
I concur with the result reached by the majority. However, I write separately to make what may be an inconsequential distinction between Miguel Diaz-Ruiz' consent to a search of his vehicle and his consent to additional questioning by Trooper Christopher Shane Nicholas.
The majority concludes that the scope of the stop was unlawfully extended once Nicholas had dispelled his suspicion of the reason for the stop. I agree. The majority further concludes that Diaz-Ruiz' subsequent consent to search was not sufficiently attenuated from the prior unlawful detention so as to purge the taint of the unlawful detention. I agree with this conclusion, but I think it skips a step in the analysis. Before determining whether Diaz-Ruiz voluntarily consented to a search of his vehicle, we must first address whether he voluntarily consented to additional questioning by Nicholas.
The State argues that when Nicholas returned the documents to Diaz-Ruiz and momentarily stepped away from the truck, the traffic stop ended and the encounter became consensual when Diaz-Ruiz agreed to answer additional questions. The State relies on State v. Thompson, 284 Kan. 763, Syl. ¶ 9, 166 P.3d 1015 (2007), which holds that an *847 initial traffic stop can subsequently become a consensual encounter if, under the totality of the circumstances, the law enforcement officer's conduct conveys to a reasonable person that he or she is free to refuse the requests or otherwise end the encounter. The State argues that Diaz-Ruiz voluntarily agreed to answer additional questions after Nicholas concluded the stop. The State then asserts that after the encounter between Nicholas and Diaz-Ruiz became consensual, Diaz-Ruiz voluntarily consented to a search of the truck.
However, Thompson is distinguishable from the present case because when the law enforcement officer in Thompson requested the driver to consent to additional questions, the encounter had not been "tainted" by an unlawful detention. Here, as we have concluded, the scope of the stop was unlawfully extended once Nicholas had dispelled his suspicion that the ladder was improperly secured in the truck bed.
If Diaz-Ruiz had voluntarily consented to additional questioning by Nicholas, then the encounter would have become consensual and Diaz-Ruiz' subsequent consent to the vehicle search might have been lawful. But Diaz-Ruiz' consent to additional questioning by Nicholas was not voluntary for the same reason the majority concluded that his consent to search was not voluntary, i.e., the consent was not sufficiently attenuated from the prior unlawful detention so as to purge the taint of the unlawful detention.
Stated differently, there are two separate and distinct "consents" that must be addressed in the analysis of the suppression issue. The first is Diaz-Ruiz' consent to additional questioning by Nicholas. Only if that consent is found to be voluntary do we need to determine whether the subsequent consent to search the vehicle was voluntary. Because I conclude that Diaz-Ruiz never voluntarily consented to additional questioning by Nicholas, it follows that Diaz-Ruiz remained unlawfully detained by Nicholas, and any evidence seized thereafter must be suppressed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-1303
AMERICAN EMPLOYERS INSURANCE COMPANY,
Plaintiff - Appellee,
versus
LANA C. WEBB, Individually, t/a Lana’s Palace,
Defendant - Appellant,
APPLE TREE MINING, INCORPORATED,
Defendant - Appellee,
and
JERRY WAYNE CAUDILL, Individually, t/a Lana’s
Place,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, District
Judge. (CA-96-158-A-B)
Submitted: June 9, 1998 Decided: June 24, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lana C. Webb, Appellant Pro Se. James Hall Revere, III, William
Charles Waddell, III, WADDELL & BARNES, P.C., Newport News, Vir-
ginia; Bennett E. Bayer, Lexington, Kentucky, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court’s grant of summary judg-
ment declaring her unable to recover under an insurance policy
issued by American Employers’ Insurance Company, and the denial of
her motion for reconsideration. We have reviewed the record and
the district court’s opinions and find no reversible error.
Accordingly, we affirm on the reasoning of the district court.
American Employers Ins. Co. v. Webb, No. CA-96-158-A-B (W.D. Va.
Jan. 21 & Feb. 10, 1998). We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
AFFIRMED
2
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94 Ga. App. 791 (1956)
96 S.E.2d 213
BROOKS
v.
READY MIX CONCRETE COMPANY.
36392.
Court of Appeals of Georgia.
Decided November 20, 1956.
Rehearing Denied December 6, 1956.
*793 Wright, Rogers, Magruder & Hoyt, Dudley B. Magruder, Jr., for plaintiff in error.
Matthews, Maddox, Walton & Smith, contra.
FELTON, C. J.
The petition seeks recovery on the theory that the defendant is liable without negligence or fault for a direct trespass upon the plaintiff's property. The defendant contends that the damage was indirect or consequential and that negligence is prerequisite to the cause of action. This seems to be a case of first impression in this State as to the particular facts alleged.
1. The common law of force prior to May 14, 1776, is of force in Georgia except where modified by statute or not adjusted to our situation. Flint River Steamboat Co. v. Foster, 5 Ga. 194, 195 (5) (48 Am. D. 248); Harris v. Powers, 129 Ga. 74 (2) (58 S. E. 1038, 12 Ann. Cas. 475); L. & N. R. Co. v. Wilson, 123 Ga. 62, 67 (51 S. E. 24, 3 Ann. Cas. 128); Annotations, Code (Ann.) § 2-8003. Not only has the common law not been changed as it pertains to direct damage to realty but the rule is codified in Code § 105-1401, which provides: "The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie." Code § 105-1404 provides: "The person having title to lands, if no one is in actual possession under the same title with him, may maintain an action for a trespass thereon; and if a tenant is in possession, and the trespass is such as injures the freehold, the owner, or a remainderman or reversioner, may still maintain such action." Prior to May 14, 1776, the common-law rule was that the liability for a trespass upon real property produced by a voluntary act was absolute and did not have to be grounded in negligence, so long as the act causing the trespass or invasion was intended, such as felling a tree or damming a stream. Athens Mfg. Co. v. Rucker, 80 Ga. 291, 295 (4) (4 S. E. 885); Prosser on Torts, 2d ed., p. 54. Rylands v. Fletcher (1868) L. R. 3 H. L. 330, 37 L. J. *794 Ex. 161; Pollock, The Law of Torts, 11th ed., p. 11. The rule seems to have been changed in England in 1890 in Stanley v. Powell, L. R. (1891) 1 Q. B. 86. Harvard Law Review, Vol. 33, p. 546.
2. The vital question in this case is whether damage from blasting is a direct or consequential trespass. The courts of many States have held that the damage is consequential. See cases cited in Exner v. Sherman Power Construction Co., 54 Fed. 2d 510, 80 A. L. R. 686, 690. In the blasting cases it has been uniformly held, with a few possible exceptions, that the liability is absolute wherever there has been an actual invasion of property by rocks or debris projected by a blast. See cases cited. 80 A. L. R. 690. The courts denying absolute liability in blasting cases based their conclusions on their opinion that in blasting damage the damage was consequential. The court in the Exner case, supra, rejected the distinction between the two kinds of damage by concluding that there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. The distinction was said to have been based on historical differences between the actions of trespass and case and to be without logical basis and the court cited many cases which had rejected the distinction. 80 A. L. R. 691. We agree with the conclusion in the Exner case. If there had been a ruling by a common-law court in England prior to May 14, 1776, to the effect that the distinction between the two types of blasting injuries was valid, we would be bound. The ancient forms of action have been abolished and we can arrive at the law by process of valid reasoning and not let the ancient forms of action rule us from their graves after they have been buried, to paraphrase Professor Maitland. Maitland, Equity and the Forms of Action, 296. Damage from concussion is as immediate, if not faster, than damage from blasting, which is as dangerous and as unpredictable, and probably more dangerous. The weight of authority supports the conclusion we have reached, though there is considerable authority supporting the other view. Pro, 20 A. L. R. 2d 1375. Contra, page 1388. We think Code § 105-1401 resolves the issue as to which maxim is paramount "One may not so use his own property *795 as to injure the property of another" or "The owner of property has the right to the fullest use of his property." We think the first is paramount and the Code gives a right of action for absolute liability if one's property is injured directly by another's use of his. Besides, reason and common sense and justice require that the one who sets in motion an agency which directly damages another's property, especially an agency of such a dangerous nature, should suffer rather than an innocent property owner who has done nothing. Decisions by the courts of this State in blasting cases wherein the plaintiffs based their cases on negligence are irrelevant on the point at issue. The liability of a railroad for throwing sparks on property adjacent to rights-of-way is distinguished in Gainesville, Jefferson &c. Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213). Cases involving dangerous agencies such as gas and electricity where no direct trespass is involved are also irrelevant. The defendant in error quotes a statement from Spencer v. Mayor &c. of Gainesville, 140 Ga. 632 (2) (79 S. E. 543) that "the mere fact that the stones fell upon the plaintiff's adjacent land and injured his property would not render defendant liable in trespass for the injury." The first part of the sentence changes the whole meaning of the quote because the defendant was blasting on land purchased by the defendant from the plaintiff with the permission of the plaintiff granted in the deed of conveyance. A recovery was affirmed in Moross & Co. v. Burke, 99 Ga. 110 (24 S. E. 969), for a similar trespass where the blasting was done without the plaintiff's permission. The ruling in Austin v. Augusta Terminal Co., 108 Ga. 671 (34 S. E. 852, 47 L. R. A. 755) treated the alleged injury as being consequential and not direct but it was explained and criticized in Central Ga. Power Co. v. Nolen, 143 Ga. 776 (85 S. E. 945). The defendant in error cites many articles by textbook writers and professors urging the desirability of the abolition of the rule of absolute liability or liability without fault. Even if such a rule is more desirable, relief lies solely with the General Assembly. The special demurrers are without merit and we do not think that discussion of the reasons is necessary more than to say that the allegations attacked furnish the defendant with sufficient facts to enable it to prepare its defense.
*796 The court erred in sustaining the general and special demurrers and in dismissing the action.
Judgment reversed. Quillian and Nichols, JJ., concur.
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562 N.W.2d 627 (1997)
Sidney SIMPSON, Appellant,
v.
UNITED STATES FIDELITY & GUARANTY CO., Appellee.
No. 96-405.
Supreme Court of Iowa.
April 23, 1997.
Rehearing Denied May 16, 1997.
*628 Christopher D. Spaulding and Phillip Vonderhaar of Hedberg, Ward, Owens & Vonderhaar, Des Moines, for appellant.
Barbara A. Hering and Karl T. Olson of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.
Considered by HARRIS, P.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.
ANDREASEN, Justice.
An employee was seriously injured when he was struck by an uninsured motorist in the course of his employment. The injured employee brought a declaratory judgment action against his employer's insurer, claiming he was an insured legally entitled to recover under the uninsured motorist provisions. After the insurer had filed its answer and counterclaim, both parties filed a motion for summary judgment. The court concluded that the employee was not an insured, and that even if he was an insured, he violated the cooperation provision of the policy to the prejudice of the insurer. The court granted summary judgment for the insurer and against the employee. On appeal, we affirm.
I. Background Facts and Proceedings.
Sidney Simpson was severely injured at approximately 2:30 a.m. on April 5, 1991, when, after parking his employer's pickup truck, he was struck by a vehicle driven by Marsha Warren and owned by Lori Warren. Simpson was in the course of his employment for the Board of Waterworks Trustees of the City of Des Moines (Des Moines Waterworks) at the time and, as a result of the injuries, he received workers' compensation benefits in excess of $200,000. Des Moines Waterworks had acquired both workers' compensation and commercial automobile insurance, including uninsured and underinsured coverage up to $1 million, from United States Fidelity & Guaranty Company (USF & G). The employer's pickup truck was a covered "auto."
*629 On March 25, 1993, Simpson filed a personal injury suit for damages against the Warrens. USF & G filed a notice of workers' compensation lien on February 4, 1994. Two months later, the Warrens filed a confession of judgment in the amount of $600,000, which was accepted by Simpson. The confession of judgment and acceptance were made without notice to or consent of USF & G. The Warrens filed bankruptcy in January 1995.
On June 2, 1995, Simpson filed a petition for declaratory judgment. The petition alleged USF & G provided uninsured motorist coverage to him under the terms of the Des Moines Waterworks' policy and that judgment should be entered in the sum of $600,000. After USF & G had filed its answer, both parties filed a motion for summary judgment. Simpson timely appealed from the court's denial of his motion and the court's grant of the motion for summary judgment filed by USF & G.
II. Scope of Review.
Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 237(c). In determining if there is a genuine issue of fact, we consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Id. The interpretation of an insurance policy is a question of law unless extrinsic evidence on the meaning of the policy language is offered. Tropf v. American Family Mut. Ins. Co., 558 N.W.2d 158, 159 (Iowa 1997).
III. Uninsured Motorist Coverage.
Simpson argues he (1) is an insured under the specific definition in the uninsured motorist endorsement and (2) is an insured under the liability coverage provisions and, therefore, must be afforded uninsured motorist coverage as required by Iowa Code section 516A.1 (1991).
A. The uninsured and underinsured motorist coverage endorsement issued by USF & G to Des Moines Waterworks provided:
B. WHO IS AN INSURED
....
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto."
....
F. ADDITIONAL DEFINITIONS
The following are added to the DEFINITIONS Section:
....
2. "Occupying" means in, upon, getting in, on, out or off.
This is a typical definition found in uninsured motorist coverage. As we recently stated:
Historically, the term "occupying" has been defined as "in or upon or entering into or alighting from" the insured vehicle. The interpretation of this standard definition has given rise to repeated litigation concerning the scope of coverage. Courts have examined the relationship between the vehicle and the claimant, both as to geographical proximity and the orientation of the claimant's activities, to decide whether a particular claimant was "occupying" the insured vehicle at the time of his or her injury. Physical contact is usually not required for coverage under the traditional definition.
Tropf, 558 N.W.2d at 160 (citations omitted).
We employed the "physical contact" test in Tropf because the policy definition of "occupying" required the person seeking insured status to be "in physical contact with" the insured vehicle. When the policy definition does not impose this mandatory requirement of physical contact, most jurisdictions recognize there is a "zone" or "area" around the insured vehicle in which protection is afforded. 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 5.2, at 192 (2d ed. 1992) [hereinafter "Widiss"]. Coverage has been extended in many cases where the insured has been engaged in an activity associated with the vehicle's use or operation. Id. at 197. As suggested by Widiss:
When persons are engaged in activities that relate to the "use" or the "maintenance" *630 of an insured vehicle, it seems reasonable that they should be accorded the same protection that is afforded for individuals who (a) have completed their "use" of an insured vehicle and are alighting or (b) are about to become occupants of an insured vehicle and are engaged in "entering." Certainly, extending protection to such individuals is fully consistent with the public policy underlying the statutory mandates for the uninsured motorist coverage.
Id. at 198.
B. USF & G liability coverage provided:
A. COVERAGE
....
1. Who Is An Insured
The following are "insureds."
....
b. Anyone else while using with your permission a covered "auto" you own,....
Because he was using the truck with his employer's consent, Simpson argues he is an insured under the liability coverage portion of the policy. He insists Iowa Code section 516A.1 requires uninsured motorist coverage be provided to him as an employee using the Des Moines Waterworks' vehicle at the time of the accident. USF & G argues Simpson was not "using" the vehicle at the time he was injured.
We believe it is appropriate to consider the statutory provision relating to uninsured motorist coverage when construing the policy language. The terms of the policy are construed in light of the purposes and intent of the applicable statute. Veach v. Farmers Ins. Co., 460 N.W.2d 845, 847 (Iowa 1990). It has been stated:
Therefore, if a coverage issue arises about the scope of protection when the insurance policy is subject to such a statutory mandate, there is an additionaland very compellingjustification for the view that coverage must be afforded for anyone who is engaged in the maintenance or use of an insured vehiclethat is, anyone who is engaged in the maintenance or use is an insured because such persons clearly are afforded liability coverage without regard to whether they are defined as "insureds" in the coverage terms for the uninsured motorist insurance.
Widiss § 5.2, at 198.
C. Here, the district court concluded Simpson was not "upon" or "getting in or on" the vehicle at the time of the incident because he was, at best, walking back to the truck from the manhole where he was conducting a valve inspection, some twenty feet from the vehicle. The court also concluded the truck was not being used by Simpson at the time of the accident.
It is undisputed from the record that Simpson was inspecting a water main valve near the intersection of two streets. He had parked the truck on the curb lane of the street. To inspect the valve it was necessary to remove an eight-inch-diameter lid in the street pavement and clean out the box containing the valve. To accomplish this task, he used a variety of tools that were available in the truck. The truck was specially designed with directional arrow board lights, flashers, and strobe lights for safety. The truck was equipped with a hydraulic valve operator's machine that would extend three feet from the side of the truck to assist in opening the valve. The truck was the valve inspector's "toolbox on wheels." Although the trial court suggests Simpson was hit approximately twenty feet from the truck, other statements contained in Simpson's affidavit and the police report would locate the point of impact to be somewhere between five and ten feet from the truck. In his affidavit, Simpson stated:
I parked the Des Moines Waterworks' vehicle on the inside curb lane on N.E. 14th Street, south of Aurora Avenue, facing south. The lights of the company vehicle and directional arrow were activated and in use while I was working just outside of the vehicle. I was working on the valve that needed inspection when it was necessary for me to return to the Des Moines Waterworks' vehicle and get another tool. I was upon the Des Moines Waterworks' vehicle getting into the back of the vehicle to get the tool I needed when I was hit by a car operated by Marsha Lynn Warren.
*631 We conclude as a matter of law that, whether Simpson was twenty feet or five feet from the truck, he was an insured of USF & G at the time he was struck by the uninsured motorist. It is clear he was in close proximity to the truck when he was injured. He had left the location of the valve and was returning to the vehicle to pick up another tool. He was clearly engaged in an activity relating to the use of the specialized truck. The vehicle was not merely a means of transporting persons, but was designed and equipped to aid with water valve inspection, cleanup, and repair.
Our decision is consistent with those in other states, in which uninsured motorist coverage has been extended to persons who are injured while "using" or "occupying" a vehicle. See First Sec. Bank v. Doe, 297 Ark. 254, 760 S.W.2d 863 (1988) (coverage extended to driver of tractor-trailer rig who was killed, when struck by hit-and-run driver, while standing on the street directing the backing of the truck, six to eight feet from the insured truck); White v. Williams, 563 So.2d 1316 (La.App.1990) (passenger was using or occupying vehicle when struck by uninsured motorist six or seven feet from his insured car after he had paid for gasoline and was returning to the car); Great Am. Ins. Co. v. Cassell, 239 Va. 421, 389 S.E.2d 476 (1990) (coverage provided when firefighter was killed, when struck by a hit-and-run driver twenty to twenty-five feet from the fire truck, while returning equipment to the truck); Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 585 P.2d 157 (1978) (coverage upheld for a truck driver who was injured when struck by uninsured motorist, twenty feet from his truck, while returning to his truck after asking for directions about where to make the delivery).
IV. Simpson's Compliance With Policy Conditions.
Simpson also argues he is entitled to coverage and summary judgment because he substantially complied with all of USF & G's relevant policy conditions. In the alternative, he argues that any failure to comply was excused or waived by the insurer or was not prejudicial to the insurer. We disagree.
USF & G's policy stated the following business auto conditions:
2. Duties In The Event Of Accident, Claim, Suit Or Loss
....
a. In the event of "accident," "claim," "suit," or "loss," you must give us or our authorized representative prompt notice of the "accident" or "loss."
....
b. Additionally, you and any other involved "insured" must:
....
(3) Cooperate with us in the investigation, settlement or defense of the claim or "suit."
....
3. Legal Action Against Us
No one may bring a legal action against us under this Coverage Form until:
a. There has been full compliance with all the terms of this Coverage Form....
In its ruling, the district court stated that even if Simpson was an insured under the USF & G policy, he would be denied coverage for failing to comply with all the conditions precedent to bringing suit. The court concluded that Simpson's unilateral acts entitled USF & G to a summary judgment as a matter of law.
Whenever policy provisions are conditions precedent to coverage under an insurance contract, an insured must show substantial compliance with such conditions. Fireman's Fund Ins. Co. v. ACC Chem. Co., 538 N.W.2d 259, 264 (Iowa 1995); Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 654 (Iowa 1994). If an insured cannot prove substantial compliance, he or she must show that (1) failure to comply was excused, (2) the requirements of the condition were waived, or (3) failure to comply was not prejudicial to the insurer. Id.
If an insured fails to prove substantial compliance, excuse, or waiver, prejudice to the insurer is presumed. Met-Coil Sys. Corp., 524 N.W.2d at 654. Although this presumption is rebuttable, it will defeat an *632 insured's recovery unless it is overcome by a satisfactory showing of lack of prejudice. Id. The burden to show actual prejudice does not shift to the insurer until the insured has satisfactorily shown excuse or legal justification, such as reasonable mistake or trivial occurrence. Id.
A. We conclude as a matter of law that Simpson failed to meet his burden of showing substantial compliance with the "cooperation" provision. The purpose of a cooperation clause is to protect insurers and prevent collusion. American Guarantee & Liab. Ins. Co. v. Chandler Mfg. Co., 467 N.W.2d 226, 229 (Iowa 1991). Clearly, Simpson did not cooperate with USF & G in the investigation, settlement or defense of the lawsuit.
USF & G was not a party in Simpson's lawsuit against the Warrens, and it did not appear or intervene in the litigation. Further, USF & G did not receive notice of the Warrens' offer to confess judgment or Simpson's acceptance of the Warrens' $600,000 confession of judgment until after they were filed in district court. USF & G was never involved in any of the negotiations, and it never consented to any judgment or settlement. Simply stated, Simpson failed to cooperate with USF & G, in violation of the policy's explicit language.
B. Simpson argues that his failure to include USF & G in the settlement discussions should be excused because his attorney was unaware, at the time of the offer and acceptance of the confession of judgment, that USF & G had an uninsured motorist policy that would cover him.
An insured's mistaken belief or lack of knowledge regarding coverage may be a justifiable excuse for noncompliance with an insurance policy's provision. Met-Coil Sys. Corp., 524 N.W.2d at 657. However, "mistaken belief or lack of knowledge regarding coverage does not rise to the level of a legal excuse for noncompliance with the ... conditions of an insurance policy unless the [insured] exercised due diligence." Id. To satisfy the due diligence requirement, the insured must not have been negligent and must have at least made a reasonable effort to discover the existence of coverage. Id.
We conclude Simpson did not show he made a reasonable effort to determine the existence of coverage. At the time of the negotiations with the Warrens, Simpson knew that they were uninsured and that he would have difficulty collecting on any judgment. Despite this, however, apparently no inquiry was made as to what coverage Simpson had through his employer, Des Moines Waterworks. In Fireman's Fund, we held "it is the responsibility of the insured, not the insurance company, to keep track of which carriers have provided him with liability insurance." Fireman's Fund Ins. Co., 538 N.W.2d at 265 (quoting Olin Corp. v. Insurance Co. of N. Am., 966 F.2d 718, 725 (2d Cir.1992)). As a matter of law, Simpson's noncompliance with the "cooperation" provision is not excused.
C. Simpson also argues that USF & G waived the "cooperation" provision by denying his claim. This argument has no merit as a matter of law. Even if USF & G improperly denied Simpson's claim based on his status as an "insured," there is no evidence in the record that USF & G waived the "cooperation" provision or any other policy provision.
D. Finally, Simpson claims that USF & G was not prejudiced by his actions. As noted earlier, in order to rebut the presumption of prejudice to the insurer, the insured must show lack of prejudice by satisfactory evidence. Met-Coil Sys. Corp., 524 N.W.2d at 658. Even though the question of prejudice is usually for the jury, if the facts are undisputed and the only question concerns the breach of the policy, it may become a question of law for the court. Fireman's Fund Ins. Co., 538 N.W.2d at 265.
It is not necessary that we conclude the insurer was prejudiced as a matter of law. Met-Coil Sys. Corp., 524 N.W.2d at 659. We need only conclude that the insured failed to show lack of prejudice as a matter of law. Id. Simpson has not presented satisfactory evidence to rebut the evidence of substantial prejudice to USF & G in this case. Here, USF & G had no opportunity to participate in, control, or monitor the litigation between Simpson and the Warrens. USF & G also *633 had no opportunity to investigate the claim or assess its potential liability and damages. Without Simpson's cooperation, USF & G was not able to participate in the settlement discussions. Under these circumstances, we conclude the district court correctly granted USF & G's motion for summary judgment on this issue.
V. Conclusion.
Because of this conclusion, we need not address the claim of issue preclusion. We affirm the summary judgment granted by the district court.
AFFIRMED.
All justices concur except SNELL, J. who dissents.
SNELL, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part.
I agree with the result based on Simpson's failure to comply with the policy provisions.
I do not agree that Simpson is covered by the policy language contained in the uninsured motorist coverage policy purchased from USF & G by Simpson's employer, Board of Waterworks Trustees of the City of Des Moines. The case should be decided on the language of the policy that describes what coverage has been bought and sold, not on an expandable concept that uninsured motorist coverage should include, as a public policy canopy, anyone engaged in using the vehicle. The idea of "use" coverage in a "zone" around the insured vehicle, completely ignores, nay, eviscerates the contractual language that defines "occupying" a covered vehicle to mean "in, upon, getting in, on, out or off." An examination of dictionary definitions of these words shows that there is no ambiguity in them. Certainly, a person five or ten feet from the covered vehicle is not included in a dictionary description of the meaning of these words. The trial court indicates that Simpson was actually twenty feet from the truck when hit. We are not at liberty to find that Simpson was close enough to the vehicle, in "a zone of coverage," to squeeze into the policy language that defines "occupying." A beneficent intent to broadly sow uninsured motorist insurance is no substitute for the meaning of words.
The "occupying" word is included in section B(3) on "Who is an insured" and section F(2) on Definitions in the USF & G policy that states the terms for the "Iowa Uninsured and Underinsured Motorists Coverage" part of the policy. The idea that coverage is nevertheless provided because Simpson is "using" the vehicle is discovered by reaching outside the policy language that describes "occupying" in the policy that sets out the contract for "Iowa Uninsured and Underinsured Motorists Coverage." The "using" language is found by backtracking to section II, the "Liability Coverage" section that sets out the general liability obligations for coverage by the insurer and lists "Who is an insured." This section II is part of the Business Auto Coverage Form for liability coverage that is completely separate from the Uninsured Motorist Coverage part of the policy. There is no language in this insurance contract that fuses these sections together. Nor is there any support in logic or case law for the trumping of the "occupying" language in the Uninsured Motorist Coverage policy with the "using" language in the liability coverage section of the Business Auto Coverage Form, that is a completely separate policy coverage. This "using" language, vaulting into the Uninsured Motorist Coverage policy effectively negates the insurer's right to legally contract and define the nature and limits of its obligations under the law.
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NO. 07-09-0034-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 19, 2010
______________________________
IVORY CLEMONS, APPELLANT
V.
TEXAS CONCRETE MATERIALS, LTD., APPELLEE
_________________________________
FROM THE 419[TH] DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-GN-08-001672; HONORABLE GUS STRAUSS, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Ivory Clemons, presents a sole issue contending the trial court erred in granting summary judgment in favor of Appellee, Texas Concrete Materials, Ltd. (Texas Concrete) in his suit alleging a violation of section 21.051 of the Texas Labor Code. Specifically, Appellant contends he was the victim of age discrimination, when he was discharged as a truck driver. We reverse and remand.
Factual Background
Ivory Clemons worked as a truck driver for Capitol Aggregates beginning in 2001. In January 2007, Texas Concrete acquired the business. In September 2007, Clemons was terminated from employment at the age of sixty-five, purportedly for using profanity over his truck's two-way radio. The event leading to the discharge occurred on or about September 4, 2007, when Clemons was attempting to find a job site and expressed frustration with the dispatcher for repeatedly giving him wrong directions. Clemons uttered "[o]h, shit" over the radio. After his faux pas, he was instructed by Supervisor Daniel Villareal to cease using profanity on the radio. According to Villareal's deposition, and in his written statement to Mike Barras, Vice President of Operations, Appellant used the word "shit" more than once. Clemons, however, in his deposition, disputed using the word "shit" over the radio more than once and stated that he did not believe "shit" was a curse word.
Approximately six weeks after his discharge, Clemons filed a written complaint with the Texas Workforce Commission-Civil Rights Division in which he alleged that the reason given for his termination was false and he "believe[d] that my termination was on the basis of age." He further alleged that he was qualified for his position and was replaced by a younger employee. After exhausting his administrative remedies, the Texas Workforce Commission issued Clemons a right to sue letter.
On May 15, 2008, Clemons filed suit against Texas Concrete Materials, Ltd., alleging age discrimination in violation of section 21.051 of the Texas Labor Code. After a period of discovery, Texas Concrete filed a combination traditional and no-evidence motion for summary judgment. Clemons filed separate responses to each motion. The trial court signed an order granting summary judgment and later signed a final judgment that Clemons take nothing by his suit against Texas Concrete. The trial court did not specify which motion was granted, nor the grounds relied on for summary judgment.
By a sole issue, Clemons maintains the trial court erred in granting Texas Concrete's motion and asserts he presented significant evidence to defeat the motion. We agree.
I. Standards of Review
A. No-Evidence Motion for Summary Judgment
In a no-evidence summary judgment motion, the movant contends there is no evidence of one or more essential elements of the claims for which the nonmovant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. See id. See also Western Invs. Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The nonmoving party is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i), Comments 1997. We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). See also Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
B. Traditional Motion for Summary Judgment
We review the trial courts granting of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In our review, we "must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Yancy v. United Surgical Ptnrs. Int'l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (emphasis in original) (citing City of Keller, 168 S.W.3d at 824-25).
For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the nonmovant's cause of action. Shaw v. Moss, 67 S.W.3d 836, 842 (Tex. 2001), Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied).
When, as here, the summary judgment does not specify or state the grounds relied on, summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Urena, 162 S.W.3d at 550. Additionally, where, as here, the trial court did not specify whether it granted Texas Concrete's traditional or no-evidence motion, we first review the summary judgment under the no-evidence standard of Rule 166a(i) of the Texas Rules of Civil Procedure. If summary judgment was properly rendered under that standard, we need not reach arguments under the traditional standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
II. Applicable Law
Under the Texas Commission on Human Rights Act, it is unlawful for an employer to discharge an employee on the basis of age, among other traits. See Tex. Lab. Code Ann. § 21.051-.556 (Vernon 2006). The general purpose of the Act is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Id. at § 21.001(1). Therefore, Texas Courts look to analogous federal law and the cases interpreting them to guide our reading of the Act. Quantum Chem.Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001) (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1996)). "An employer commits an unlawful employment practice if because of . . . age the employer . . . discharges an individual . . . ." § 21.051(1).
Federal courts recognize two types of Title VII employment discrimination cases, each requiring different elements of proof. The first type is the "pretext" case which requires a plaintiff to show that the employer's reason for the adverse employment action was a pretext for discrimination. Toennies, 47 S.W.3d at 476 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 238, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The plaintiff can usually provide sufficient evidence of discriminatory intent by showing that the employer's proffered reason for the adverse action is false. Toennies, 47 S.W.3d at 476. The second type of case is the "mixed-motive" case, in which the plaintiff has direct evidence of discriminatory animus. The direct evidence shifts the burden of proof to the employer to show that legitimate reasons would have led to the same decision regardless of any discriminatory motives. Id. Thus, how a case is classified depends entirely on the presence or absence of direct evidence. Id. (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 104 L.Ed.2d 268, 109 S.Ct. 1775 (1989) (O'Connor, J., concurring)). If the plaintiff has only circumstantial evidence of discrimination, it will be classified as a pretext case regardless of how many motives the employer had. Toennies, 47 S.W.3d at 477. Regardless of the distinction, the burden of persuasion on the issue of discrimination is always with the plaintiff. Id.
Clemons provided only circumstantial evidence in support of his discrimination claim. Thus, his case falls into the pretext category and we apply the burden-shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 S.Ct. 668, 93 L.Ed.2d 1817 (1973). See Toennies, 47 S.W.3d at 477. Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to show that he was discharged for a legitimate, nondiscriminatory reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The burden is that of production only, not persuasion. 530 U.S. at 142. If the defendant offers a legitimate reason, the burden shifts back to the plaintiff to show either (1) the reason stated by the employer was a pretext for discrimination, or (2) the defendant's reason, while true, was only one reason for its conduct, and discrimination is another motivating factor. See id. at 143. The relevant inquiry is not whether the stated reason for the discharge is a pretext, but what the stated reason was "a pretext for." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). (Emphasis in original). In other words, the correct standard of causation for a plaintiff in all unlawful employment practice claims brought under the Act is "a motivating factor" for the discharge. Toennies, 47 S.W.3d at 480.
To establish a prima facie case of employment discrimination, a plaintiff must show (1) he is a member of a protected class; (2) he was qualified for his position; (3) he was subject to an adverse employment decision; and (4) he was replaced by someone outside his protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 S.Ct. 668, 93 L.Ed.2d 1817 (1973). See also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A plaintiff's burden of establishing a prima facie case "is not onerous." Burdine, 450 U.S. at 253. Only a minimal showing is needed to establish a prima facie case. Id.; Ptomey v. Tex. Tech Univ., 277 S.W.3d 487, 493 (Tex.App.--Amarillo 2009, pet. denied).
A plaintiff need only produce more than a scintilla of evidence to raise a fact issue to defeat summary judgment. See Ridgway, 135 S.W.3d at 600. See also Ptomey, 277 S.W.3d at 493. More than a scintilla of evidence exists when the evidence . . . "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ridgway, 135 S.W.3d at 601.
Summary judgment is usually considered an inappropriate tool for resolving employment discrimination cases because the claims involve "nebulous questions of motivation and intent." Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In a summary judgment context, a plaintiff need not prove pretext but merely establish a genuine issue of material fact on the issue to avoid judgment. Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 438 (Tex.App.--Houston [14th Dist.] 2002, pet. denied). However, if a defendant is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions or a plaintiff's evidence created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, summary judgment is proper. Reeves, 530 U.S. at 148.
III. Analysis
A. No-Evidence Summary Judgment
By its no-evidence motion, Texas Concrete alleged that Clemons was unable to produce evidence that he was discharged because of his age. Assuming, arguendo, that Clemons met his burden of establishing a minimal showing of a prima facie case, Texas Concrete rebutted any presumption of discrimination by setting forth evidence of a legitimate non-discriminatory reason for the discharge, i.e., Clemons's knowing violation of radio policy. Clemons then bore the ultimate burden to produce more than a scintilla of evidence that his discharge was due to his age.
In his response to the no-evidence portion of the hybrid motion for summary judgment, Clemons included excerpts from his deposition as well as excerpts from the depositions of several Texas Concrete employees. He also offered his affidavit and the affidavits of former co-workers Robert Mayzone and Byron Harris. Clemons provided deposition excerpts from Texas Concrete employees Mike Barras, Vice President of Operations, Daniel Villareal, Field Superintendent, and Stephanie Norment, Human Resources Director. By the circumstantial evidence, Clemons hoped to raise a genuine issue of material fact on whether his age was a factor in his discharge.
We begin with the basic rule that conclusory statements in an affidavit are not competent summary judgment evidence. See Tex. R. Civ. P. 166a(f) (supporting affidavits shall set forth such facts as would be admissible in evidence). See also McIntyre v. Ramirez, 109 S.W.3d 741, 750 (Tex. 2003) (noting that conclusory affidavits are not enough to raise fact issues). A conclusory statement is one that does not provide the underlying facts to support the conclusion. City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 701 n.6 (Tex.App--Austin 2005, no pet.). Additionally, an affidavit of an interested party should be clear, positive, and direct, otherwise credible and free from contradiction and inconsistencies, and susceptible to being controverted." Tex. R. Civ. P. 166a(c); Majeski v. Estate of Majeski, 163 S.W.3d 102, 107 (Tex.App.--Austin 2005, no pet.).
1. Clemons's Affidavit and Deposition Testimony
By his affidavit, Clemons averred that he accidently used foul language over the company radio only on one occasion, that other drivers used foul language and were not reprimanded or terminated, and that some drivers spoke in Spanish over the radio, also a violation of company policy, without repercussion. He also stated that although he could not name specific individuals, others told him about individuals who used profanity over the radio, and dispatch would have recognized their voices. We agree with Texas Concrete that these averments are unsupported by facts and thus, conclusory.
Clemons also stated in his affidavit that Barras, Vice President of Operations, and J.J. Michaels, a supervisor, repeatedly made comments to him about his age and asked when he was going to retire. Texas Concrete objected to this statement as being irrelevant. However, we find the evidence relevant as it has a tendency to make the existence of any fact that is of consequence to the determination of the action, i.e., the motivating factor for Clemons's discharge was his age, more probable than it would be without the evidence. See Tex. R. Evid. 401.
In his deposition, Clemons testified that Barras took the opportunity during conversations to encourage retirement, asked if he was collecting Social Security, and suggested it was time to "move on." Clemons specifically recalled a company gathering in July 2007, just two months prior to his termination, where Barras again asked when he was retiring. Clemons responded that he intended to work as long as he could. Clemons approximated that Barras made age-related remarks to him at least ninety percent of the times they conversed.
Stray remarks, remote in time from termination, and not made by anyone directly connected with the decision, are not enough to raise a fact question about whether the reason for termination was pretextual. See Autozone, Inc., 272 S.W.3d 588, 592 (Tex. 2008); M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000). See also Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 330 (Tex.App.--Austin 1999, no pet.). Statements and remarks may serve as evidence of discrimination only if they are (1) related to the employee's protected class, (2) close in time to the employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue. Autozone, 272 S.W.3d at 593. Comments made eight months and five months prior to terminations have been held not to have been proximate in time to the adverse employment decision. See Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723 (Tex.App.--Fort Worth 2006, no pet.). However, specific comments made over a lengthy period of time may serve as sufficient evidence of age discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 656 (5th Cir. 1996). In Reeves, the United States Supreme Court made it clear that courts should not improperly weigh the impact of comments that might indicate a discriminatory bias; rather, such determinations should be submitted to the jury. See Reeves, 530 U.S. at 146-149. See also Rachid v. Jack in the Box, 376 F.3d 305, 315 (5th Cir. 2004) (noting that even nebulous age-related comments "are appropriately taken into account when analyzing the evidence).
Barras, an individual with authority over Clemons's position, signed the letter of termination. The summary judgment evidence demonstrates that age-related remarks made by Barras were related to Clemons's protected class (persons forty or older), were made within two months of his termination, and were raised in conversations approximately ninety percent of the time. Although Clemons also presented some evidence that age or retirement remarks may have been made by other employees, we do not consider them as they were made by persons who did not have a role in the ultimate decision to terminate him, nor is there any evidence that they had leverage over anyone with decision making authority. See Autozone, 272 S.W.3d at 592-93.
2. Robert Mayzone's Affidavit
Mayzone, a co-worker of Clemons's, averred that he frequently heard other drivers use foul language or speak in Spanish over the radio without being disciplined. Mayzone also averred he had personal knowledge of a particular employee, Juan Trevino, violating radio policy and he heard Barras make negative comments to Clemons about his age and retirement. No facts, however, are provided to support the conclusory statements. We agree with Texas Concrete that Mayzone's statements are objectionable and therefore insufficient to defeat summary judgment,
3. Byron Harris's Affidavit
Harris, also a co-worker of Clemons's, echoed Mayzone's conclusory statements. He added, however, that he personally used the word "shit" over the radio on a couple of occasions without being reprimanded or punished.
4. Stephanie Norment's Affidavit and Deposition Testimony
Stephanie Norment, Human Resources Director for Texas Concrete, provided an affidavit in which she averred that on September 5, 2007, Texas Concrete employed 179 employees, sixteen of which were over age sixty, and ten of which were drivers. In his responses to the hybrid motion for summary judgment, Clemons included one sheet from a payroll services record dated "08/01/2008" listing only fifty-nine employees. The list included employees' names, dates of birth, hire dates, and termination dates. A careful review of that document reflects that, during the period from the time Clemons was discharged on September 6, 2007 until August 1, 2008, Texas Concrete experienced a trend toward a much younger staff. Specifically, before 9-6-07, approximately 79% of the listed employees were within the protected class of individuals forty or older; whereas, on 8-1-08, that number had decreased to approximately 38%.
By deposition testimony, Norment stated Clemons's discharge was an exception to the rule of receiving either an oral warning or written reprimand before termination. She was unaware of anyone else being terminated for violation of company policy without first receiving a warning.
5. Mike Barras's Deposition Testimony
Barras testified that FCC rules and company policy prohibit profanity over the company radio. He admitted that before Clemons's discharge, no other employee had been terminated for violations of the radio policy. He explained that the problem was the inability to identify a particular driver in order to discipline that driver. Clemons, however, was easily identified at the time of the violation because he was announcing his truck number over the radio. According to Barras, the company had since acquired new technology to identify drivers. Barras confirmed that Clemons was replaced by a new employee soon after his termination.
6. Daniel Villareal's Deposition Testimony
Villareal, a fuel representative for Texas Concrete, served in a supervisory role over drivers. Villareal is Barras's brother-in-law and he is the employee who penned the statement describing Clemons's use of profanity in violation of radio policy and provided it to Barras and Clemons's supervisor. According to Villareal, Barras instructed him to get the statement signed because he was "planning to let [Clemons] go." Similarly to Barras, Villareal testified that the problem with drivers who violated radio policy was identifying them. Since 1984, when Villareal first started in the truck driving business, he could recall only one person being fired for violation of radio policy.
Villareal also testified that Texas Concrete had a progressive disciplinary process, i.e., an oral reprimand, a written reprimand, and termination, to deal with employee misconduct. According to Villareal, Clemons was not terminated to reduce the work force or as part of downsizing the company. He described Clemons as a "fair" employee. He also confirmed that Clemons was replaced soon after his termination.
Texas Concrete argues that Clemons's evidence is nothing more than weak evidence of pretext and is therefore insufficient to preclude summary judgment. See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 508 (Tex.App.--Houston [14th Dist.] 2008, pet. denied) (citing Reeves, 530 U.S. at 148) (holding that an employer is entitled to summary judgment if the plaintiff's proof creates only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred). In his reply brief, Clemons maintains that Texas Concrete's reliance on Hines is "misplaced and fatal to its argument" because it did not provide the level of evidence required to demonstrate that no discrimination occurred, i.e., abundant and uncontroverted independent evidence. We agree with Clemons that Hines does not apply to the case at bar.
Accordingly, disregarding any conclusory statements made in affidavits provided by Clemons in support of his response to the no-evidence motion for summary judgment, we conclude Clemons presented more than a scintilla of evidence to enable reasonable and fair minded jurors to differ in their conclusions and thus, raised a genuine issue of fact regarding whether he was terminated due to his age. Both Norment and Villareal testified that no employee had ever been discharged for violation of radio policy, and Norment added that Clemons's termination was the exception to the rule of progressive discipline. Additionally, Texas Concrete's payroll records demonstrated a trend toward a much younger work force after Clemons was terminated. Moreover, because Barras was directly connected to the adverse employment decision, age-related remarks made by him within two months of the decision were sufficiently proximate in time as to constitute more than a scintilla of evidence to raise a fact issue. See Ridgway, 135 S.W.3d at 600. If the trial court's summary judgment was based on Texas Concrete's no-evidence motion, it was erroneously granted.
B. Traditional Summary Judgment
Although inartfully presented in its traditional motion, Texas Concrete alleged that "[t]he decision to terminate [Clemons] was related to [his] improper use of the company radio" and "had nothing to do with [his] age." To establish its entitlement to summary judgment as a matter of law, Texas Concrete presented deposition excerpts from Clemons, including exhibits and responses to interrogatories. Deposition excerpts from Villareal were also provided as well as affidavits from Barras and Norment.
1. Clemons's Deposition and Exhibits
According to the exhibits to Clemons's deposition, he signed a receipt and acknowledgement of Texas Concrete's manual which included a list of prohibited conduct. "Obscene or abusive language toward any manager, employee or customer" is prohibited in the manual. In his deposition, Clemons does not dispute that he used the word "shit" over the company radio. He does dispute having used it more than once as alleged by Villareal in his statement. Clemons testified that his belief that his termination was based solely on violation of radio policy was false for two reasons. First, Barras was constantly conversing with Clemons about retiring and secondly, the company wanted to replace him with someone younger who would make less money because he was at "the top money."
By his responses to Texas Concrete's interrogatories, Clemons claimed he was discriminated against on the basis of his age and that the company permitted an environment that was hostile to older workers. He stated he was qualified for his position and was replaced by a younger employee. He also asserted that other employees also used unacceptable language over the radio and were not disciplined. Clemons acknowledged not having details in his responses due to the early stages of discovery.
2. Villareal's Deposition
According to his deposition testimony Villareal called Barras about Clemons's misconduct and informed him he was going to write-up Clemons. After Villareal provided a handwritten statement, Barras asked him to have it formalized and signed by witnesses because Barras was "planning to let [Clemons] go." Villareal testified that he had heard others cuss on the radio without disciplinary action being taken because of the inability to identify them. He also testified that during his employment with Texas Concrete, he had written up other employees in the past for improper radio use but could not recall their names. He could not, however, recall anyone being fired for violating radio policy.
3. Barras's Affidavit
Barras averred that on September 5, 2007, he received a report that Clemons had used profanity over the radio. That same day he received a handwritten statement from Villareal which he then typed out and asked Villareal to read and sign. Barras continued in his affidavit that as Vice President of Operations, he was responsible for making the decision to terminate Clemons based on the handwritten and typed statements of Villareal regarding Clemons's violation of radio policy. He averred that age was not a factor in this employment decision.
4. Norment's Affidavit
As Human Resources Director, Norment averred that on Septmeber 5, 2007, Texas Concrete employed 179 employees of which sixteen were over the age of sixty and ten of which were drivers.
C. Clemons's Response to Traditional Motion
By his response to Texas Concrete's traditional motion for summary judgment, Clemons offered the same evidence provided in his response to the no-evidence motion. We need not reiterate the evidence here. Suffice it to say that in applying the appropriate standard of review, we conclude the evidence presented by Texas Concrete in support of its traditional summary judgment does not establish as a matter of law that Clemons was terminated solely for violating the company's radio policy. The evidence creates a genuine issue of fact on the nebulous questions of motivation and intent. If the trial court's summary judgment was based on Texas Concrete's traditional motion for summary judgment, it was erroneously granted. Clemons's sole issue is sustained.
IV. Conclusion
The trial court erred in granting summary judgment in favor of Texas Concrete Materials, Ltd. Consequently, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings.
Patrick A. Pirtle
Justice
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640 F.2d 1094
107 L.R.R.M. (BNA) 2011, 91 Lab.Cas. P 12,678
Karl KALLMANN, d/b/a Love's Barbeque Restaurant, No. 62,Petitioner and Cross- Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner.
Nos. 79-7595, 80-7075.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 13, 1980.Decided March 30, 1981.
Van Bourg, Allen Weinberg & Roger, San Francisco, Cal., Naomi Young, Littler, Mendelson, Fastiff & Tichy, Los Angeles, Cal., for petitioner and cross-respondent.
Linda Dreeben, NLRB, Washington, D. C., for respondent and cross-petitioner.
David H. Rosenfeld, San Francisco, Cal., for intervenor, Hotel, Motel, Restaurant and Bartenders Union, Local 50.
Petition for Review and Cross-Application for Enforcement of an Order of The National Labor Relations Board.
Before GOODWIN and BOOCHEVER, Circuit Judges, and HARRIS*, District Judge.
BOOCHEVER, Circuit Judge:
1
Karl Kallmann, d/b/a Love's Barbeque Restaurant (Kallmann), seeks to review and set aside an order of the National Labor Relations Board (Board). The Board cross-petitions for enforcement of its order. The Board found that Kallmann was a successor to Love's Wood Pit Barbeque Restaurant (Love) and that Kallmann had violated section 8(a) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a), by refusing to hire the former Love employees because of their union affiliation and by harassing the former employees during their picketing of Kallmann's restaurant. Consequently, the Board ordered that all forty former employees be reinstated and given back pay. We affirm the part of the Board's order finding violations of the Act, but remand for further proceedings on reinstatement and back pay.
STATEMENT OF FACTS
2
The Hotel, Motel & Restaurant Employees & Bartenders Union (Union), intervenors in this suit, filed an unfair labor practice suit against Love and Kallmann. The following facts were presented at a hearing before an Administrative Law Judge (ALJ).
3
Love, a California corporation, operates and franchises restaurants. Love opened Love's Wood Pit Barbeque Restaurant (Restaurant) as a franchise. From 1973 until September 1977 Love operated it as a company-owned restaurant. In 1977, a collective bargaining agreement was in effect between the Union and Love.
4
In May of 1977, Ronald Mesker, Love's Vice President, spoke with Kallmann regarding the possibility of purchasing the Restaurant. Mesker informed him that Love had a collective bargaining agreement with the Union covering employees at the Restaurant. Franchising negotiations continued during the summer. Love closed the Restaurant at the end of the business day on September 25. The employees were first notified of the closure on September 26. On September 28, Kallmann and Love entered an agreement under which Kallmann became the owner of the Restaurant on a franchise basis.
5
While the Restaurant was being cleaned, Kallmann prepared to reopen. He rented two rooms at a hotel for interviewing job applicants and advertised at two local colleges and in two newspapers. He interviewed at the hotel for two and one-half days, commencing on October 12. Thereafter, he interviewed at the Restaurant and the advertisements were changed so that the name and address of the Restaurant were provided for the first time. Kallmann conducted all the interviews at the hotel, but David Sebben, assistant manager, conducted some at the Restaurant.1 Of the 200 applicants, 125 were interviewed. Before October 17, all available positions were filled.
6
Seven former employees of the Restaurant applied for positions, but none was hired. Each indicated on the employment application that he or she was a former employee. The seven were: Malone-Morris, Porter, Hansen, Boyd, Logan, Wadsworth and Bishop.2 Of these seven, four were interviewed.
7
Porter applied to be a waiter or cook (he had been the head cook). Kallmann testified that although he initially thought that Porter might be a good employee, he subsequently remembered the filthy condition of the kitchen and decided that he did not want that type of employee working for him.
8
Wadsworth and Logan applied for both dishwasher and cook jobs. Logan testified that after Kallmann read that Logan had previously worked at the Restaurant, Kallmann indicated that there were no positions open except possibly as a dishwasher. After Logan said that he would take a job as a dishwasher, Kallmann told him that he was pretty certain that it was taken. Wadsworth was offered a job as a busboy, but told Kallmann that he was not interested because his seniority warranted a better job. Hansen stated that after she told Kallmann that she had worked at the Restaurant, he exclaimed, "Oh, you were one of them." Kallmann said that he would check her qualifications.
9
Kallmann initially hired approximately thirty employees, but no former employees were hired. Kallmann established new wage rates and other benefits for his employees. They were lower than those provided to the former employees.
10
On October 21, the day after the Restaurant reopened, the Union commenced picketing the Restaurant. Although the Union wanted to negotiate a contract, Kallmann declined to discuss the matter. Pingree, a former employee, testified that while she was picketing, Kallmann asked her to lay down her sign and come to work. He said that he would hire her at Union wages, "but it would not be Union."
11
After the picketing had concluded one day, Logan and Wadsworth were sitting in a car parked near the Restaurant. Sebben, the assistant manager of the Restaurant, testified that he took their picture because he saw the pair rolling what he believed to be marijuana cigarettes.
12
The ALJ concluded that: (A) by telling employees he did not intend to operate a unionized restaurant and taking pictures, without a valid reason, of employees who had been picketing, Kallmann violated section 8(a)(1) of the Act; (B) Kallmann was not a "successor" to Love; and (C) Kallmann had not violated sections 8(a)(3) and (5) of the Act. Both sides filed exceptions to the decision of the ALJ. The Board upheld the ALJ's decision that Kallmann had violated section 8(a)(1) by its actions during the picketing. It reversed the other findings and concluded that: (A) Kallmann was a successor employer, and therefore violated sections 8(a)(1) and (5) when he refused to recognize and bargain with the Union, and (B) by refusing to hire the former employees because of their Union affiliation, Kallmann violated sections 8(a)(1) and (3). Kallmann petitioned for review of the Board's order and the Board filed a cross-application for enforcement.
13
A. KALLMANN'S ACTIVITIES DURING THE PICKETING
14
Kallmann contends that his statement to Pingree and Turner, that he would hire Pingree under the same conditions as before but that the Restaurant "will not be Union," is not a violation of section 8(a)(1)3 because it was one of fact and one expressing his view and opinion of the status at the time the statement was made. Section 8(c) protects such an expression if it "contains no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c).
15
Kallmann, however, was not merely expressing a view of the status at the time he made the statement. One reasonable inference from the remark is that the Restaurant would remain non-union in the future. Moreover, the statement promised Pingree that benefits (i. e., union wages) would be provided even without union protection.(S)tatements ... made to employees informing them that the company would never bargain with the union and that benefits would be given by the company even without the union .... violated section 8(a)(1) ....
16
Ingress-Plastene, Inc. v. N.L.R.B., 430 F.2d 542, 545 (7th Cir. 1970). There was sufficient evidence from which the Board could find a violation of section 8(a)(1).4 Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) (substantial evidence test for agency findings).
17
Kallmann next contends that Sebben's photographing of Logan and Wadsworth was not a violation of section 8(a)(1) because it was to show that they were rolling a marijuana cigarette, not to harass them for union activity. Neither the ALJ nor the Board, however, believed Sebben's testimony. Thus, there is no basis for overruling the finding that Sebben's actions violated section 8(a) (1). The Board reasonably concluded that such conduct subjected the former employees to harassment.5
18
B. KALLMANN'S FAILURE TO HIRE ANY FORMER EMPLOYEES
19
The ALJ found that Kallmann did not deliberately refuse to hire the former employees because of their union affiliation. The Board, however, reversed this finding thereby concluding that Kallmann violated sections 8(a)(1) and (3).6
20
Kallmann contends that the Board's finding is not supported by substantial evidence. Moreover, he contends that where, as here, the Board disagrees with the ALJ's findings the evidence supporting the Board's determination must be stronger. This court has rejected Kallmann's second contention.
21
The fact that the Board's findings disagree with those of the ALJ does not change this (substantial evidence) standard. The deference accorded to the findings runs in favor of the Board, not the ALJ. It is well settled that we may not substitute our choice between two fairly conflicting interpretations of the facts where the Board's choice is supported by substantial evidence. True enough, the ALJ's determinations on credibility "weigh heavily" in the court's review of the Board's findings contrary to the ALJ's. However, ... the Board is to be accorded special deference in drawing derivative inferences from the evidence.
22
N.L.R.B. v. Tischler, 615 F.2d 509, 511 (9th Cir. 1980) (citations omitted).7
23
Even though the ALJ believed that "Kallmann was not a credible witness when testifying with respect to this very subject (the hiring procedure)," the ALJ found that Kallmann did not refuse to hire the former employees because of their union affiliation. The ALJ based this finding on several factors. First, there was no basis for concluding that any problems between the Union and Love had been brought to Kallmann's attention so that he would be reluctant to hire employees with union sympathies. Second, although Kallmann's testimony was not generally credible, he did appear credible when he stated his belief that when he took over the Restaurant, it would be his choice whether or not there was a union. Thus, Kallmann had no reason to refuse to hire union employees. Third, Kallmann did not refuse employment to all former employees because Wadsworth, and probably Logan, were offered jobs as busboys. Fourth, even though Kallmann's initial advertisements did not list the name of the Restaurant, Kallmann did not interview at the Restaurant during the initial two and one-half days of interviewing, and Kallmann did not give an explanation for these procedures, the ALJ refused to infer that Kallmann was attempting to conceal the reopening from the former employees. Fifth, Kallmann had a valid business reason for not hiring former employees because he felt that the Restaurant had been left in a dirty condition.
24
The Board noted that although the ALJ discredited Kallmann's testimony regarding the hiring procedures, the ALJ nevertheless refused to draw the permissible inference that the hiring actions were taken for an unlawful reason to conceal the reopening. Finding that Kallmann had deliberately refused to hire the former employees because of anti-union animus, the Board took a contrary view. First, Kallmann's statement that he did not intend to let the employees be represented, far from being a mere opinion, supported a finding of unlawful motive. Second, the Board found that Kallmann's "unusual" hiring procedures, which he failed to explain, were designed to conceal the availability of jobs from the former (Union) employees. Third, it also found that Kallmann made no "offers" to former employees because: (A) the offer to Pingree was itself a violation of the Act; (B) the offer of a "possible" busboy position to Wadsworth was not an offer since it was merely an "expression of a possible potential offer" which Kallmann never actualized, and in any event he knew that Wadsworth applied for the cook position; and (C) there was no basis for inferring that Kallmann offered Logan a position.8 Fourth, the Board found that there was no valid business reason for not hiring the former employees because Kallmann did not offer the uncleanliness of the Restaurant as a defense at the proceedings before the ALJ.9 Finally, it noted that Kallmann had violated the Act by photographing picketers and making unlawful statements.
25
The Board did not disagree with the ALJ's assessment of witness credibility,10 rather it drew different inferences from the testimony itself. The Board has special expertise in drawing these kinds of inferences, and its determinations are entitled to judicial deference. N.L.R.B. v. Tischler, 615 F.2d 509, 511 (9th Cir. 1980).
26
The record as a whole indicates that the Board's finding that Kallmann refused to hire former employees because of their union affiliation is supported by substantial evidence. Kallmann's discriminatory refusal to hire constituted a violation of sections 8(a)(1) and (3). N.L.R.B. v. Tragniew, Inc., 470 F.2d 669, 675 (9th Cir. 1972); K. B. & J. Young's Super Markets, Inc. v. N.L.R.B., 377 F.2d 463, 465 (9th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967).
C. KALLMANN AS A SUCCESSOR EMPLOYER
27
When employees have a collective bargaining agreement and a change in ownership occurs, the new owner must recognize and bargain with the employees' union if the new owner is found to be a "successor employer." N.L.R.B. v. Edjo, Inc., 631 F.2d 604, 606-607 (9th Cir. 1980); Bellingham Frozen Foods, Inc. v. N.L.R.B., 626 F.2d 674, 678 (9th Cir. 1980). The new owner is a successor employer if: (A) the employer conducts essentially the same business as the former employer, and (B) a majority of the new employer's work force are former employees or would have been former employees absent a refusal to hire because of anti-union animus. Id.; Pacific Hide & Fur Depot, Inc. v. N.L.R.B., 553 F.2d 609, 611 (9th Cir. 1977). The Board found that Kallmann was a successor employer who violated sections 8(a)(1) and (5)11 by disavowing Love's obligation to the Union.
28
Kallmann concedes that he conducted essentially the same business as Love. He argues, however, the Board erred in finding that he was a successor employer because the Board impermissibly assumed that "but for ... Kallmann's unlawful ... (hiring discrimination), the Union's status as the exclusive collective-bargaining representative would have survived ... Kallmann's take over of the Hayward Restaurant." Kallmann contends that this "bootstrap argument" cannot be made without some evidence that Kallmann would have had the opportunity to hire the requisite number of former employees in the absence of his allegedly unlawful conduct. At most, only nine former employees applied for the twenty-eight to thirty available positions. Therefore, Kallmann contends that there was not substantial evidence to find that the Union's majority status would have continued.
29
Kallmann's argument has been rejected by several courts.12 For example, in N.L.R.B. v. Foodway of El Paso, 496 F.2d 117 (5th Cir. 1974), Foodway purchased a grocery store from Allied. Foodway refused to hire any former Allied employees because of their union memberships. Foodway contended that it was not a successor employer with a duty to bargain because the evidence did not show that the union represented a majority of the employees. The court rejected this argument stating:
30
It is manifest that but for Foodway's discriminatory refusal to offer employment to Allied's unit employees, the Union would have continued to enjoy a majority representative status. We decline to permit an employer to rely upon its own wrongdoing and thus avoid its legal responsibilities.
31
Id. at 120. Where, as here, a successor employer unlawfully discriminates in hiring, an appropriate remedy is reinstatement for all the former employees. Packing House and Industrial Services v. N.L.R.B., 590 F.2d 688, 697-98 (8th Cir. 1978). See N.L.R.B. v. Tragniew, Inc., 470 F.2d 669, 675 (9th Cir. 1972).
32
With such reinstatement ordered, continuity in the identity of the work force may be presumed to follow and an order to recognize and bargain with the union as representative of the present work force is appropriate.
33
K. B. & J. Young's Super Markets, Inc. v. N.L.R.B., 377 F.2d 463, 465 (9th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967). The Board properly assumed a majority would have survived the takeover but for Kallmann's discrimination. We conclude that substantial evidence supports the Board's finding that Kallmann was a successor employer and thus violated the Act by refusing to bargain with the Union.13
D. THE BOARD'S ORDER OF REINSTATEMENT
34
Kallmann contends that the portion of the Board's order directing him to reinstate the forty former employees to their old jobs, or to substantially equivalent jobs if the old jobs no longer exist, and to make them whole for any loss of earnings suffered as a result of the discrimination, is punitive and therefore unenforceable. See N.L.R.B. v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir. 1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980).
35
The Board's order requires Kallmann to offer all forty former employees reinstatement. Kallmann argues that this is punitive because he only hired twenty-eight to thirty total employees when he reopened the Restaurant.14 Kallmann relies on Vancouver, id. In Vancouver, the company was a worker-owned corporation. Not all the workers, however, were shareholders. Three of the seven directors (also worker-shareholders) advocated ending the employment of non-shareholders altogether. Eventually, the three convinced another director to join with them and on that day all seventy-two non-shareholders then employed were fired. The court upheld the Board's findings that the firings were for anti-union reasons and that the company unlawfully refused to recognize the non-shareholders' union. The court refused to enforce, however, the Board's remedial order, similar to the order here, that required the rehiring of all seventy-two non-shareholders. The company contended that eventually it would have eliminated or drastically reduced the non-shareholder work force regardless of unionization, and therefore the Board improperly gave the discharged employees more than they would have received without the violation. The court agreed, stating:(T)he Board has a duty to consider how many employees, if any, the company would have continued to employ but for the unfair labor practices, and for how long. The record indicates that ... the Board in review gave (no) consideration to whether some or all of the temporary employees eventually would have lost their jobs for acceptable business reasons.
36
Id. at 602.
37
The Vancouver court also rejected the argument made by the Board here, that the exact terms of the reinstatement order are properly left for subsequent determination, and do not affect the order's enforceability. Id. at 603. It noted that the order required the reinstatement, not just of some non-shareholders, but of exactly seventy-two discharged workers, and this precision made it clear that no further proceedings were contemplated regarding the number of employees to be reinstated. Because the order was so specific, it denied "the company an opportunity to show that fewer than 72 jobs would have been available regardless of its unfair practices." Id. Therefore, the remedial order of reinstatement was unenforceable.15 Similarly here, the order requires that Kallmann hire all forty former employees without providing him with the opportunity to show that fewer than forty jobs would have been available. The Vancouver decision compels the conclusion that the Board's order regarding reinstatement is unenforceable16 and a remand is necessary.
E. THE BOARD'S BACK PAY ORDER
38
Kallmann also contends that the order mandating back pay is unenforceable because it requires Kallmann to pay more than he would have paid the former employees. After the takeover, Kallmann established wages and benefits which were less than the former union wages and benefits. The Board ordered Kallmann to pay back wages and benefits at the rate existing immediately before the takeover, after finding that Kallmann violated section 8(a)(5) of the Act by unilaterally reducing rates of pay and benefits provided in the collective bargaining agreement. 29 U.S.C. § 158(a)(5). A back pay award is appropriate where a successor refuses to hire former employees because of anti-union animus.17 The only question is whether the award at the higher union rate is a penalty.
39
The Board recognized that, under N.L.R.B. v. Burns Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), a successor employer is ordinarily free to set initial hiring terms without preliminary bargaining with the incumbent union. Where, however, "it is perfectly clear that the new employer plans to retain all of the employees," id. at 294-95, 92 S.Ct. at 1585-1586, the successor must consult with the union before altering the terms and conditions of employment. N.L.R.B. v. Edjo, Inc., 631 F.2d 604, 607 (9th Cir. 1980). The Board found that this exception applied because any uncertainty regarding whether substantially all18 the former employees would have been retained had to be resolved against Kallmann because he could not benefit from his unlawful conduct. As we have noted, when a successor employer has discriminated in hiring, the appropriate remedy is to offer reinstatement to all the former employees. With such reinstatement ordered, it can be presumed that substantially all the former employees would be retained. We also agree with the Board that the employer should not be permitted to benefit from his illegal conduct. Consequently, we hold that Kallmann violated the Act when he unilaterally reduced wages.
40
Nevertheless, we disagree with the extent of the remedial order. Even though under the facts of this case Kallmann had a duty to consult with the union before unilaterally changing the terms of employment, as a successor employer he had no obligation to accept his predecessor's labor agreement. Edjo, at 606-07. The effect of the Board's order is to force Kallmann to abide by the terms of his predecessor's contract with the employees for the entire period of time Kallmann has owned the enterprise. In N.L.R.B. v. Dent, 534 F.2d 844, 846-47 (9th Cir. 1976), this court considered a similar remedial order. The successor employer in Dent retained all the former employees, but violated the Act by unilaterally reducing wages. The Board ordered back pay at the pre-reduction levels for all hours worked since the reduction. This court refused to enforce the order because enforcement would, in effect, cause the successor employer to be bound by its predecessor's collective bargaining agreement for the three and one-half years that the successor owned the company, a period longer than the contract period in the union's agreement with the predecessor. We also believe that to the extent that a back pay order requires payment at the higher rate for the entire period of ownership, it acts as a penalty.
41
The function of the remedy in unfair labor cases is to restore the situation, as nearly as possible, to that which would have occurred but for the violation. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). We recognize the difficulty in reconstructing the situation in the present case. For guidance, we believe that an appropriate back pay remedy cannot require Kallmann to pay the higher rate beyond a period allowing for a reasonable time of bargaining. The facts demonstrate that Kallmann would not have agreed to union demands to pay the higher rate. Kallmann's refusal would not be unlawful. In all probability it would have led to an impasse allowing Kallmann to reduce wages. See N.L.R.B. v. Acme Wire Works, Inc., 582 F.2d 153, 156-57 (2d Cir. 1978). After a reasonable period for bargaining, Kallmann would be required to pay only at the rate he set.19
42
We remand this case to the Board to determine the appropriate rate of pay and the number of employees that are entitled to reinstatement. In the Board's discretion, resolution of these issues may be left to bargaining between the parties. We order that the Board's order be enforced in part and denied in part.
*
The Honorable Oren Harris, Senior District Judge, Eastern and Western Districts of Arkansas, sitting by designation
1
Kallmann testified, however, that Sebben did not interview anyone
2
Shawver applied after the Restaurant opened. Roy inquired about employment as a hostess, but Sebben told her the position was filled. Although she did not fill out an application immediately, she testified that on the day the Restaurant reopened she left an application with the hostess
3
Section 8(a)(1), 29 U.S.C. § 158(a)(1), provides:
(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
4
See N.L.R.B. v. Max Factor and Co., 640 F.2d 197 at 204 (9th Cir. 1980) ("(E)mployer violates section 8(a)(1) by offering economic benefits in exchange for ceasing union activity."); N.L.R.B. v. Interstate 65 Corp., 453 F.2d 269, 274 (6th Cir. 1971) (manager's statement that "there would be no union at the motel" and conditioning employment on willingness to work without a union was sufficient to support violation of § 8(a)(1)). Cf. Overnite Transportation Co. v. N.L.R.B., 372 F.2d 765, 769 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101 (1967) (company's statement that "we are not union and we are not planning on being union" was not per se impermissible, but it colored the conduct). See generally, N.L.R.B. v. Fort Vancouver Plywood Co., 604 F.2d 596, 599 n.1 (9th Cir. 1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980). (even if the statements were capable of non-coercive interpretation, this court will not weigh differing interpretations as long as the inference drawn by the Board is reasonable)
5
In the absence of proper justification, the photographing of pickets violates the Act because it has a tendency to intimidate. See N.L.R.B. v. Associated Naval Architects, Inc., 355 F.2d 788, 791 (4th Cir. 1966)
6
Section 8(a)(3) makes it an unlawful labor practice for an employer:
by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....
29 U.S.C. § 158(a)(3).
7
When, however, testimonial inferences (credibility determinations based on demeanor) are at issue, the Board's finding will not be sustained when it rests solely on testimony discredited by the ALJ. Even if there is independent evidence, the Board's finding will be more carefully scrutinized. Loomis Courier Serv., Inc. v. N.L.R.B., 595 F.2d 491, 495-96 (9th Cir. 1979). For an extensive discussion of this issue, see Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074 (9th Cir. 1977). It has been stated that " '(w)hile the standard set forth ... is imprecise, it provides as much clarity as the area affords.' " Id. at 1087 (Duniway, J., concurring in part and dissenting in part) (quoting N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 499 (2d Cir. 1967))
8
The ALJ reasoned that because Logan was interviewed at the same time as Wadsworth and Wadsworth was offered a job, Logan was offered a job
9
There was little testimony regarding the Restaurant's cleanliness. The ALJ apparently relied on Kallmann's asserted justification for not hiring Porter
10
The ALJ discredited Kallmann's testimony, although the ALJ did believe his testimony regarding his belief that it was his choice whether there would be a union. In reaching its conclusions, the Board did not disagree with the ALJ's assessment of that testimony but drew a different inference, namely that Kallmann, in violation of the Act, did not intend to allow a union
11
Section 8(a)(5) provides that it is unlawful for an employer:
to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
29 U.S.C. § 158(a)(5).
12
See Packing House and Indus. Services, Inc. v. N.L.R.B., 590 F.2d 688, 695 (8th Cir. 1978); N.L.R.B. v. Houston Distribution Serv., Inc., 573 F.2d 260, 266-67 (5th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 705 (1978). See generally N.L.R.B. v. Foodway of El Paso, 496 F.2d 117, 120 (5th Cir. 1974); K. B. & J. Young's Super Markets, Inc. v. N.L.R.B., 377 F.2d 463 (9th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967) (majority status may be presumed where successor employer discharged former employees to evade bargaining obligations); Barrington Plaza and Tragniew, Inc., 185 N.L.R.B. 962 (1970), enforced in part, N.L.R.B. v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972)
13
Kallmann's reliance on Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), is misplaced. In Teamsters, the employer committed unlawful discrimination in failing to promote minority employees to certain preferred truck driving positions. The government contended that since all non-applicants were employees, it is likely that they were aware of the futility of applying and, absent the prospect of discriminatory rejection, they would have applied. The court rejected this argument because there were such differences between the "preferred" jobs (those that paid more) and the others that "the desirability of the (former) is not so self-evident as to warrant a conclusion that all employees would prefer (the preferred job) if given a free choice." Id. at 369, 97 S.Ct. at 1871-1872. Because the Supreme Court pointed out that Title VII remedies are modeled after the National Labor Relations Act, id. at 366, 97 S.Ct. at 1870, Kallmann contends that the reasoning of Teamsters is applicable to this situation. Here, however, it is reasonable to assume that the former employees would have desired to remain in their existing jobs at the same benefit level. The Teamsters court also noted that the non-applicants might not have possessed the necessary qualifications. Id. at 369, 97 S.Ct. at 1871-1872. Here, it is proper to assume that the former employees were qualified to perform the jobs they previously held
14
We reject the Board's contention that Kallmann has waived the right to raise this argument on appeal because Kallmann, as the prevailing party before the ALJ, had no remedial order to object to before the Board. See AMCAR Division v. N.L.R.B., 596 F.2d 1344, 1350 n.8 (8th Cir. 1979)
15
See also Florsheim Shoe Store Co. v. N.L.R.B., 565 F.2d 1240, 1247 (2d Cir. 1977) (where jobs affected by illegal activities would have been phased out regardless of the activities, Board must tailor its remedy to reflect the situation). But cf. Packing House and Indus. Services v. N.L.R.B., 590 F.2d 688, 697 (8th Cir. 1978) (where substantial evidence supported the Board's finding that successor refused to hire any former employees because of anti- union animus, the court affirmed the Board's order requiring successor to offer employment to all 83 former employees). The successor made no contention, however, that it intended to reduce the work force. The concurring opinion noted that the Board stated that at the compliance hearing it would determine whether the employees were not rehired "because of legitimate considerations (such) as a reduction in force ...." Id. at 700 (Ross, J., concurring) (quoting the Board)
16
The Board asserts that Vancouver is distinguishable because in the instant case no evidence in the record suggests the company "would not, at least initially, have retained all 40 former employees." The Board found, however, that Kallmann initially hired "approximately 30 employees." Excerpt of Record 97. See also Excerpt of Record 27; III Reporter's Transcript at 724, 731
17
Packing House and Indus. Services, Inc. v. N.L.R.B., 590 F.2d 688, 697-98 (8th Cir. 1978). See K. B. & J. Young's Super Markets, Inc. v. N.L.R.B., 377 F.2d 463 (9th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967)
18
The Board has construed the Supreme Court's term "all" to mean "all or substantially all." Int'l Ass'n of Machinists, Etc. v. N.L.R.B., 595 F.2d 664, 671 n.35 (D.C.Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 36 (1979)
19
See dissent of Judge Bryan in Overnite Transportation Co. v. N.L.R.B., 372 F.2d 765, 770-71 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101 (1967)
| {
"pile_set_name": "FreeLaw"
} |
196 So.2d 205 (1967)
Marilyn L. HODER, Appellant,
v.
Maxwell M. SAYET, M.D., d/b/a Atlantic Clinical Lab., and North Miami General Hospital, Inc., a Florida Corporation, Appellees.
Nos. 65-1013, 65-1014.
District Court of Appeal of Florida. Third District.
January 31, 1967.
On Rehearing March 10, 1967.
*207 Thomas J. Gaine, Miami, for appellant.
Carey, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for Sayet.
*208 Dean, Adams, George & Wood and George E. Bunnell, Miami, for North Miami General.
Before CARROLL, BARKDULL and SWANN, JJ.
SWANN, Judge.
The plight of the plaintiff, Marilyn L. Hoder, pushed to the brink of defeat by an adverse summary judgment, is reminiscent of that of the children of Israel when they were trapped against the sea by the pursuing Egyptians, only to be saved by the hand of the Lord opening the sea before them.[1]
The plaintiff here finds her sea suddenly opened before her by two recent Supreme Court decisions.[2]
The defendant, Maxwell M. Sayet, M.D., d/b/a Atlantic Clinical Lab, a commercial blood bank, supplied whole blood with which the defendant, North Miami General Hospital, Inc., administered a transfusion to the plaintiff's husband while he was a patient in the hospital. The plaintiff alleged that the blood given her husband was impure and caused him to contract homologous serum hepatitis from which he subsequently died. She sought recovery for his alleged wrongful death against both the hospital and the blood bank on theories of implied warranty and negligence. Summary judgments were entered in favor of both defendants and the plaintiff now appeals.
On appeal, we must consider the following points:
1) Whether there is an implied warranty by a commercial blood bank, or a purchaser hospital, that the blood sold and used for transfusions is fit for human use.
2) Whether the plaintiff's allegations of negligence on the part of either the blood bank or the hospital were sufficient to state a cause of action against either or both of them
3) Was there any genuine issue as to any material fact so as to preclude the entry of a summary final judgment for the hospital or the blood bank?
We first discuss the alleged "implied warranty of fitness" of the blood by the hospital and the blood bank.
Judge Shannon, in Russell v. Community Blood Bank, Inc., Fla.App. 1966, 185 So.2d 749, has given this question a scholarly and thorough discussion, and has noted that the transfer of blood by a hospital to a patient is generally considered a "service" as opposed to a "sale," and that the allegation of a breach of an implied warranty would not state a cause of action against the hospital. The opinion held, however, that a blood bank which supplied blood to a patient for a consideration has made a "sale" and that there may be a cause of action stated against it for breach of an implied warranty. We concur.
The Russell case, in what may have been dicta (since the only question was whether the complaint stated a cause of action) seemed to indicate that although the plaintiff may state a cause of action for breach of an implied warranty by the blood bank, recovery would be limited to only those injuries caused by failure to detect or remove a deleterious substance capable of detection or removal. This position offers great hope to the blood bank here, as it argues most persuasively that "if * * * a medical and factual showing is made by the defendant that the serum hepatitis virus is undetectable and unremovable, this would, as a matter of law, be a complete defense to an action predicated on breach of implied warranty." The blood bank points to evidence that such may be the case here.
Viewing the record in the light most favorable to the plaintiff, as we must here, and drawing from it every favorable inference, it seems that even though there may *209 be no way to detect or eliminate the hepatitis virus once the blood has been taken, a jury might well find that the risk of its being present could have been greatly minimized through more careful screening of donors.
The fact that a drug product may be "unavoidably unsafe" does not license its processor to disregard all standards of care and precaution, merely because he is secure in the knowledge that he does not impliedly warrant it against its "unavoidable" defects. The Florida Supreme Court, in McLeod v. W.S. Merrell Co., 1965, 174 So.2d 736, 739, has imposed a limited set of warranties upon a retail druggist filling prescriptions:
* * * * * *
"* * * [T]he rights of the consumer can be preserved and the responsibilities of the retail prescription durggist can be imposed, under the concept that a druggist who sells a prescription warrants that (1) he will compound the drug prescribed; (2) he has used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence); (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance. * * *"
* * * * * *
The same rationale should be applied to processors of blood which is to be used by purchasers for transfusions into human beings. Blood banks must take necessary precautions in selecting donors and processing the blood.
It appears that the blood used in the Hoder transfusion was obtained by the blood bank from two donors, one of whom gave a fictitious name and address and was never located. The other donor, Albanese, was located and deposed concerning the procedures followed by the blood bank in the taking of his blood.
A blood bank, in order to be accredited by the proper authorities, is required to ask certain questions concerning the donor's general health, well being, diseases and other relevant matters before taking his blood. Albanese testified by deposition that he was asked none of these questions prior to the taking of his blood by the blood bank. Even though Albanese stated that he would have answered any such questions in the negative, a jury might reasonably infer that there had been a similar failure to screen the other donor at the time his blood was taken and that this amounted to a breach of the blood bank's implied warranty to take necessary precautions to minimize the risk of obtaining impure blood.
Having determined that a cause of action for breach of implied warranty was stated against the blood bank, but not the hospital, and that the blood bank had failed to carry the burden of proving conclusively the non-existence of a material issue of fact so as to be entitled to a summary judgment, we now turn to the question of possible negligence on the part of either the hospital or blood bank.
The blood bank has been charged with negligence in the delegation of the interviewing, the selecting, and the screening of donors to [unqualified] non-medical agents, servants or employees, which failure would increase the probability of serum hepatitis. The affidavits and depositions submitted on behalf of the blood bank have failed to show conclusively the non-existence of the issues raised by these allegations.
Turning now to the hospital, the plaintiff's only allegation of negligence would seem to boil down to the proposition that it is negligence per se for a hospital to purchase or obtain blood from a commercial blood bank because commercial procurement increases the likelihood of hepatitis infected blood. We are not prepared to so hold.
The fact that the blood bank had met licensing requirements would appear *210 to be only a prima facie indication of its adherence to certain minimum standards of care in the selecting of donors and processing of the blood. If the hospital or its agents had reason to know that these minimum standards were not being followed, it cannot be allowed to escape liability by asserting that its sole duty was to obtain the blood from a licensed blood bank.
It is generally settled that a court may pierce the "paper issues" made by the pleadings and examine the record to determine if there are any genuine issues of fact that ought to be tried. Curley v. Finest Homes, Inc., Fla.App. 1964, 167 So.2d 739. The court therefore should have granted the plaintiff leave to amend her allegation of negligence against the hospital if it appeared that there were issues to be tried that had not been raised by the pleadings. See: Hart Properties, Inc. v. Slack, Fla. 1963, 159 So.2d 236.
Viewing the record again in the light most favorable to the non-moving party, it would seem that the hospital has failed to show conclusively the non-existence of any material issue concerning possible negligence in its selection of this particular blood bank as its supplier. Dr.Sayet acted in the dual capacity of hospital pathologist and owner-operator of the blood bank. A jury might reasonably have found that the hospital entrusted him with a measure of responsibility in selecting the supply source for the blood acquired by the hospital. Any purchase then by the hospital from a blood bank which Dr. Sayet knew or should have known to be operating below minimum standards of care, would have constituted a breach of the hospital's duty to use due care in the acquisition of blood for its patients.
It is estimated that there are three thousand deaths per year in the United States which are directly or indirectly attributable to the use of blood transfusions for medical or surgical purposes, and that there are many diseases which can be transmitted by blood transfusions, the most important of which are serum hepatitis, malaria, and syphillis.[3]
Blood transfusions are becoming more frequent in our society, and blood banks and hospitals must exercise a high degree of care and attention in these matters. We find that the allegations of breach of the implied warranty were sufficient to state a cause of action against the blood bank under the rules set forth in Russell, supra, and the issues raised by these allegations have not been disposed of by the defendant's attack. We also find that the allegations of negligence against both the blood bank and the hospital created sufficient issues of genuine material fact to withstand the defendants' motions for summary judgment.
The last point raised by the defendants is that they are entitled to summary judgment because the plaintiff has failed to introduce any proof, other than the naked allegations of her complaint, that the decedents' death was caused by serum hepatitis, or that if it were, that the hepatitis was caused by the transfused blood.
At this stage, we are concerned solely with the question of whether the moving party has successfully met the challenge of showing conclusively the non-existence of any material issue of fact.[4] The defendants here have not come forward with any evidence to indicate that the decedent did not die from homologous serum hepatitis or that, if he did, it was caused by something other than the blood transfusion as alleged in the plaintiff's complaint. The defendants therefore have failed to carry their burden *211 and the plaintiff has no present obligation to demonstrate such a causal relationship.
To be sure, upon remand for trial, it will be the plaintiff upon whom the burden will fall to prove the necessary elements of causation before recovery will be allowed. In addition, the plaintiff must then also prove the acts of negligence or of a breach of implied warranty necessary to support recovery. We do not presently hold that there has been any breach of implied warranty or act of negligence or that the plaintiff is entitled to recovery. We hold merely that the movant for summary judgment has not conclusively shown the non-existence of any material issues of fact and that there is possible evidence from which a jury might find for the plaintiff if this evidence is proven and credible.
It should be noted that the decision of the trial judge was made prior to the opinions of Russell, Holl and Visingardi, supra.
Accordingly, we concur with the view of the trial judge that there was no issue made by the pleadings of any liability on the part of the hospital for a breach of implied warranty. See Rule 1.36(d), Florida Rules of Civil Procedure, 30 F.S.A.
We reverse and remand, for further proceedings consistent herewith, on the issues of negligence against both the hospital and the blood bank, as well as on the issue of a breach of an implied warranty by the commercial blood bank.
It is so ordered.
On Rehearing.
A rehearing having been granted to appellee, North Miami General Hospital, Inc., and the case having been further considered upon the record and briefs and argument of counsel thereon, it is ordered and adjudged by the court that the opinion of this court filed January 31, 1967 in said cause be and the same is hereby reaffirmed and adhered to on rehearing.
NOTES
[1] Exodus, Chapter 14.
[2] Visingardi v. Tirone, Fla. 1966, 193 So.2d 601 (opinion filed November 23, 1966); Holl v. Talcott, Fla. 1966, 191 So.2d 40.
[3] Lawyer's Medical Cyclopedia, Supplementary Service for Volume 3, § 24.31. Dunn, Blood Transfusions and Serum Hepatitis, 15 Clev.Mar.L.Rev. 497 (1966).
[4] See Visingardi v. Tirone, supra; Holl v. Talcott, supra.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-41,082-04
EX PARTE LEROY W. SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2011-CR-9630 IN THE 437TH DISTRICT COURT
FROM BEXAR COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a
controlled substance, and was sentenced to three years' imprisonment. He did not appeal his
conviction.
Applicant contends that his plea was involuntary because he received erroneous advice from
counsel regarding the validity of the enhancement allegations. Applicant was charged by indictment
with a state jail felony offense, enhanced by prior sequential felony convictions to second degree
felony punishment range, under Section 12.425(b) of the Texas Penal Code. However, at the time
he committed the primary offense, the second sequential felony conviction alleged as an
enhancement was not a "final" conviction for enhancement purposes, because it was pending on
appeal. Although the appellate mandate in the prior case had issued at the time of Applicant's plea
in the primary case, at the time he committed the primary offense, the prior conviction was not final.
The record does not show whether Applicant had another prior felony conviction which could have
been alleged in place of the non-final conviction.
Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances,
additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim.
App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any
means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court
may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.
If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether Applicant had any additional prior
felony convictions which could have been used in place of Cause No. 2009CR1615 to enhance his
state jail felony conviction to second degree punishment range. If Applicant did have any such
conviction(s), the trial court shall supplement the habeas record with copies of the relevant
judgment(s) or other documentation of the offense(s). The trial court shall make findings of fact and
conclusions of law in regard to Applicant's claim that his plea was involuntary. The trial court shall
also make any other findings of fact and conclusions of law that it deems relevant and appropriate
to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or
deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: October 31, 2012
Do not publish
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April 7, 1953
Dr. Geo. W. Cox. M.D. Gvinion No. S-24
State Health C$icer -
State Health Department Re: Applicability of the regis-
Austin, Texas tration requirements of the
Texas Livestock Remedy Act
to manufacturers who sell
Dear Dr. Coxr only to veterinarians.
Your question is substantially as follows:
Does Section12 of Article 192-1,
Vernon's Civil Statutes, exempt from regis-
tration under the Texas Livestock,Remedy
Act manufacturers of live stock remedies
who sell only to veterinarians and not for
resale?
Section 12 of Article 192-1, Vernon's Civil
Statutes, is as follows:
"Nothing in this Act shall be con-
strued as being applicable to or interfering
with the compounding and dispensing of vet-
erinarians' prescriptions, nor the dispensing
of drugs or preparations by registered phar-
macists compo~undedat the request of the
purchaser and not intended for the purpose
of resale."
We think that the meaning of the above quoted
Section is clear that manufactured or compounded and
packaged articles of merchandise are not contemplated
or intended to be exempted, but only that veterinarianss
prescriptions and drugs compounded by a registered phar-
macist at the request of the purchaser, not for resale,
are contemplated by the Section quoted. Therefore, you
are advised that the registration requirements of the
Texas Livestock Remedy Act are applicable to manufacturers
who sell only to veterinarians.
Dr. Geo. W. Cox, M.D,, page 2 (S-24)
SUMMARY
The registration requirements of the
Texas Livestock Remedy Act are applicable
to man~ufacturerswho sell only to veterinar-
ians.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
J. C. Davis, Jr,
County Affairs Division
Willis E. Gresham By 4ike--*
Reviewer B. Duncan Davis
Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
BDDzam
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565 F.2d 1166
Bob TATE and Jerry Higgs, Plaintiffs-Appellees,v.Lola AKERS, Dorothy Dietz, Dick Foster, Roger Gonzales,Patsy McGinley, Frank H. Moore, Norman E. "Skip" Roberts,and Richard W. Weeks, Members of the City Council of theCity of Laramie, Wyoming, Ted C. Gertsch, Member of the CityCouncil of the City of Laramie, Wyoming and Mayor of theCity of Laramie, Wyoming, and Ted Kersting, Chief of Policeof the City of Laramie, Wyoming, Defendants-Appellants.
No. 76-1418.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted May 18, 1977.Decided Nov. 23, 1977.
Hugh B. McFadden, Jr., Laramie, Wyo. (Corthell, King, McFadden, Nicholas & Prehoda, Laramie, Wyo., Warren L. Johns, Walter E. Carson, Johns & Carson, Washington, D. C., and Boardman Noland, Takoma Park, Md., on the brief), for plaintiffs-appellees.
Thomas S. Smith, Laramie, Wyo. (Smith, Stanfield & Scott, Laramie, Wyo., on the brief), for defendants-appellants.
Before McWILLIAMS and BARRETT, Circuit Judges, and BOHANON, Senior District Judge.*
McWILLIAMS, Circuit Judge.
1
The precise question in this appeal is whether a Seventh Day Adventist "literature evangelist," sometimes referred to as a "colporteur," is a "solicitor," "peddler," "hawker," or "itinerant merchant," as those terms are used in the City of Laramie's version of the so-called Green River Ordinance. The trial court, after trial of the matter and after having heard testimony as to the nature of a colporteur's work, found, and concluded, that a colporteur was neither a solicitor, a peddler, a hawker, nor an itinerant merchant, and accordingly held that the Laramie ordinance did not apply to colporteurs. The trial court's memorandum opinion appears as Tate v. Akers, 409 F.Supp. 978 (D.Wyo.1976). Our study of the matter convinces us that the trial court's disposition of the matter finds support in the record, and we therefore affirm.
2
The ordinance with which we are here concerned, Laramie, Wyo. City Code § 28-3, provides as follows:
3
The practice of going in and upon private residences, in the city, by solicitors, peddlers, hawkers, itinerant merchants, not having been requested or invited to do so by the owner or occupant of such private residences for the purpose of soliciting orders for the sale of goods, wares, and merchandise, or for the purpose of disposing of or peddling or hawking the same, is hereby declared to be unlawful and a nuisance. The chief of police and police force of the city shall suppress the same and abate any such nuisance. (Emphasis added.)
4
The record before us does not disclose the date when the foregoing ordinance was enacted. The record does disclose that in 1974 an amendment to exempt bona fide religious organizations from the ordinance was defeated by the City Council for Laramie, Wyoming. Thereafter, the Mayor and City Council of Laramie announced their intention to enforce the ordinance against colporteurs of the Seventh Day Adventist Church and others. Apparently the ordinance had not been so enforced prior thereto. In any event, it was in this general setting that Bob Tate and Jerry Higgs, both members of the Seventh Day Adventist Church and each responsible for carrying on, and supervising others carrying on, "a campaign of literature evangelism in Laramie, Wyoming," brought a class action against the Mayor, the members of the City Council, and the Chief of Police of Laramie, Wyoming. Pursuant to 28 U.S.C. §§ 2201 and 2202, the plaintiffs sought a declaratory judgment that the aforementioned ordinance by its own terms was inapplicable to them, and, alternatively, that if the ordinance were found to be applicable to them, a declaration that the ordinance is unconstitutional under the First and Fourteenth Amendments to the United States Constitution. Jurisdiction was based on 28 U.S.C. § 1343, the action being one in equity authorized by 42 U.S.C. § 1983.
5
The defendants' position was that the ordinance in question was applicable to the plaintiffs and that such was a constitutional exercise of police power by the City of Laramie.
6
Trial was to the court, and the plaintiffs called two witnesses who testified as to the general nature of the Seventh Day Adventist religion, and more particularly as to the nature of a colporteur's religious work. The defendants called some three witnesses, the testimony of two relating to the unsuccessful attempt in 1974 to amend the ordinance so as to exempt bona fide religious organizations, and the intent of Laramie officials to enforce the ordinance against the plaintiffs. Defendants' third witness testified concerning the Seventh Day Adventist Church. Upon the conclusion of the trial, the judge held that the ordinance did not apply to the plaintiffs, and accordingly declined to reach the question as to whether the ordinance, if it did apply to the plaintiffs, was constitutional. By its judgment, the trial court enjoined the defendants from enforcing the ordinance against the plaintiffs. The Mayor, City Council, and the Chief of Police now appeal from that judgment.
7
There is nothing in the record to indicate the legislative intent of the City Council which enacted the ordinance. The fact that, in 1974, an amendment to exempt bona fide religious organizations from the ordinance was defeated is no evidence of the legislative intent behind the original enactment of the ordinance which presumably occurred prior to 1974. Thus, in determining the applicability of the ordinance to the plaintiffs, we, like the trial court, must look to the ordinance itself, and the language thereof.
8
The ordinance provides, in effect, that the acts of uninvited "solicitors, peddlers, hawkers, (and) itinerant merchants" in going to private residences for the purpose of soliciting orders or selling "goods, wares, and merchandise" constitute a nuisance and should be abated. Is a colporteur of the Seventh Day Adventist Church a solicitor, peddler, hawker, or itinerant merchant? Such determination depends on the nature of a colporteur's activities.
9
The trial judge in his memorandum opinion made detailed findings concerning the Seventh Day Adventist Church and its use of colporteurs to spread its version of the gospel. Such findings will be only summarized here. Plaintiffs are members of the Seventh Day Adventist Church and they propose to engage in a campaign of literature evangelism in the City of Laramie, Wyoming. The Seventh Day Adventists comprise a religious denomination with more than 2,500,000 members. Two basic tenets of the religion are that the seventh day of the week, namely, Saturday, is the Sabbath and that there will be a second coming of Christ. Literature evangelism is a formal program of the Church and has been relied on for more than a hundred years as a primary means of spreading their gospel and gaining converts. A literature evangelist, or colporteur, is a credentialed representative of the Church and is considered to be engaged in a form of ministry. Prior to being selected as a colporteur, the applicant is subjected to rigorous investigation to determine that he is well-trained in church doctrine and that he is otherwise suited for this calling.
10
As concerns a colporteur's method of operation, the trial court found such to be as follows:
11
The literature evangelist goes from door-to-door attempting to engage residents in conversations about contemporary problems and proposing to offer a religious solution to them. If the householder shows no interest or does not invite them into the house, the literature evangelist politely leaves. If the householder invites the literature evangelist into his home, the evangelist discusses these world problems, offers his religious solution to them, and in the course of it, may offer to sell the individual any one or more of a series of publications produced by the church.
12
The publications which the literature evangelist offers for sale are magazines and handsomely illustrated, hard-bound books. These magazines and sets of books range in price from approximately $8 for the magazine subscriptions to in excess of $125.00 for one of the many sets of hard-bound books. Their subject matter ranges from purely religious matters such as stories from the Bible, designed for both children and adults, to treatises on health and home medicine. If the individual is not interested in purchasing any of the sets offered for sale, the literature evangelist offers to pray with the individual or the family and also offers to leave with them at no cost a 32-lesson home-study Bible course. The evangelist also endeavors to make an appointment for a return visit in order to continue the ministry which has begun with this first visit. 409 F.Supp. at 979-80.
13
It should be noted that another tenet or belief of the Seventh Day Adventists is that the physical body is itself a temple for the Holy Spirit, and hence the Church, by appropriate literature and otherwise, encourages good health and physical well being. This particular tenet accounts for the fact that some of the material sold by colporteurs relates to health and home medicine.
14
The colporteurs are given a commission on literature sold by them, although such does not make the colporteur fully self-supporting. The Church gives them additional assistance in the form of subsidies for living quarters, automobile expense, paid vacation, medical expense, and the like.
15
The defendants state that the only aspect of plaintiffs' conduct which they found objectionable and in violation of the ordinance is the fact that the plaintiffs propose to sell religious oriented literature from house-to-house. The defendants concede that if plaintiffs only went from door-to-door spreading their version of the gospel, and in connection therewith distributing church literature free of charge, there would be no violation of the ordinance. In such circumstance, the plaintiffs would be but "ministers." But, say the defendants, when in connection with their ministry the plaintiffs attempt to sell church literature, the "ministry" ceases to be a "ministry," and the minister is transformed into a "solicitor," "peddler," "hawker," or "itinerant merchant," and, as such, is within the ambit of the ordinance. With such reasoning we are not in accord. We agree with the trial court that the dominant and primary mission of the colporteur is to spread the gospel, and the sale of church literature is incidental thereto and does not convert a minister into a peddler.
16
A case quite similar to the present one is Donley v. City of Colorado Springs, 40 F.Supp. 15 (D.Colo.1941). There, the City of Colorado Springs enacted an ordinance which prohibited "solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise" from entering residences without invitation to solicit orders for, or sell, goods, wares and merchandise. The local Colorado Springs police sought to enforce the ordinance against members of Jehovah's Witnesses, who went door-to-door spreading their version of the gospel and offering for sale various booklets on Bible subjects at five cents a copy. In granting injunctive relief, the trial court held, inter alia, that ministers of a duly recognized religious sect, who sincerely exercise their faith by preaching the gospel and offering to take subscriptions for religious publications from door-to-door, were not solicitors, peddlers, hawkers, itinerant merchants or transient vendors within the meaning of those terms as used in the ordinance. In a similar vein, in City of Shreveport v. Teague, 200 La. 679, 8 So.2d 640 (1942), the Supreme Court of Louisiana held that an ordained member of the Jehovah's Witnesses, going door-to-door as an itinerant preacher and in connection therewith distributing religious literature and attempting to obtain a contribution therefor, was neither a solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise.
17
Having concluded that the trial court, on the basis of the record before it, did not err in holding that the ordinance in question was inapplicable to the plaintiffs, we, like the trial court, do not here reach the constitutional issue which would be raised if the ordinance did include a person performing as the plaintiffs proposed to do in the City of Laramie. We do not agree with the trial court's comment in this regard that if the ordinance were reenacted so as to include persons situated as are these plaintiffs, such would pose "serious constitutional objection."
18
Judgment affirmed.
BARRETT, Circuit Judge, dissenting:
19
I respectfully dissent. In my opinion the majority has, in effect, employed that which I would designate as the "good purpose doctrine" in order to render the uninvited house-to-house, door-to-door solicitations (for sale) by evangelists of the Seventh Day Adventist Church of certain religious periodicals, books and encyclopedias published by the Church beyond the plain and unambiguous proscription of the so-called "Green River Ordinance." This has been accomplished by focusing on the purpose (raising funds in order to spread the Gospel) rather than the true condemned activity (sale for profit in the pure commercial sense of the word).
20
The "Green River Ordinance" here invoked is completely neutral and impartial: It prohibits "the practice" by "solicitors, peddlers, hawkers, itinerant merchants" of going in and upon private residences in the City of Laramie to solicit orders "for the sale of goods, wares and merchandise" without a prior request or invitation by the owner or occupant. Thus, the "practice" is the activity, i. e., solicitation for sale. The ordinance clearly, unambiguously and unqualifiedly prohibits the activity pursued in this case, regardless by whom it may be pursued and regardless of the purpose to be served. Just as no tax may be levied to support any religious activities or institutions violative of the Establishment Clause of the First Amendment (Everson v. Board of Educations, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947)), so, too, the courts must be alert to prohibit . . . "prophylactic contacts . . . (which) involve excessive . . . entanglement between state and church." Lemon v. Kurtzman, 403 U.S. 602, 619, 91 S.Ct. 2105, 2114, 29 L.Ed.2d 745 (1971). I believe that the judicially created exception grafted upon the ordinance in this case by the majority, i. e., that which I have previously referred to in effect as the "good purpose doctrine" is in conflict with the command set forth in Scull v. Virginia, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865 (1959), mandating clarity in any penal statute or court order. In my judgment the ordinance is clear and unambiguous. In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), the Supreme Court held that to permit a defendant to exercise conduct by reliance on religious belief "would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law into himself. Government could exist only in name under such circumstances."
21
In my judgment one point is beyond dispute: The United States Supreme Court has upheld the police power of the state to protect its citizens from the nuisance of house-to-house solicitations for sale of any goods without prior request or invitation of the owner or occupant. See: Hynes v. Mayor and Council of the Borough of Oradell, et al., 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), 35 A.L.R.2d 335, Anno., 355-380; 77 A.L.R.2d 1216, Anno.; 60 Am.Jur.2d, § 58. For analogy see 14 A.L.R.3d 896, Anno. entitled "Peddling on Streets." The crux of these authorities is simply that ordinances such as the Green River Ordinance are constitutionally valid.
22
The problem presented here is, in my view, analogous to that presented to this court in Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973). There, Christian Echoes, a non-profit religious corporation, believed, as a matter of faith, that the solutions to the world's problems, economic, political and spiritual, required a rejection of atheistic world forces and a battle against communism, socialism and political liberalism, all of which were considered by the organization to be arch enemies of the Christian faith. A provision of the Internal Revenue Code disqualified a religious organization engaged in substantial activity aimed at influencing legislation from a particular tax exempt status. We held that Christian Echoes had been so engaged and that it was not entitled to the subject tax exempt status so long as it is substantially involved in the condemned activities. In putting down the Christian Echoes contention that denial of its tax exempt status under the Code violated its guaranteed right to free exercise of religion under the First Amendment we said, inter alia:
23
. . . Such conclusion is tantamount to the proposition that the First Amendment right of free exercise of religion, ipso facto, assures no restraints, no limitations, and, in effect, protects those exercising the right to do so unfettered. . . . (here) . . . The free exercise clause of the First Amendment is restrained only to the extent of denying tax exempt status and then only in keeping with an overwhelming and compelling Governmental interest: That of guarantying that the wall separating church and state remain high and firm. We reject (the First Amendment contention) . . . just as the United States Supreme Court (has) put down attacks against the enforcement of the provisions of the "Hatch Act" predicated on First Amendment free speech and assembly rights, . . . First Amendment rights are not absolutes and . . . courts must balance First Amendment freedoms against . . . enactment . . . to protect society . . . 470 F.2d at pp. 856, 857.
24
I would reverse.
*
Of the United States District Court for the Western District of Oklahoma, sitting by designation
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983 P.2d 968 (1999)
1999 MT 192
In Re the Support of Mark T. McGURRAN, Obligor.
Debra Udelhoven, Petitioner and Appellant,
v.
State of Montana, Department of Public Health & Human Services, Child Support Enforcement Division, and
Mark T. McGurran, Respondents and Respondents.
No. 99-240.
Supreme Court of Montana.
Submitted on Briefs July 29, 1999.
Decided August 12, 1999.
*970 E. Wayne Phillips; Hubble, Ridgeway & Phillips, Stanford, Montana, for Debra Udelhoven.
David N. Hull, Attorney at Law, Helena, Montana for Mark T. McGurran, Lonnie J. Olson, Department of Health & Human Services, Child Support Enforcement Division, Helena, Montana, for Respondents.
Justice KARLA M. GRAY delivered the Opinion of the Court.
¶ 1 Debra Udelhoven (Udelhoven) appeals from the order of the First Judicial District Court, Lewis and Clark County, dismissing her petition for judicial review of the order of an administrative law judge for the Child Support Enforcement Division of the Montana Department of Public Health and Human Services (CSED). We affirm.
¶ 2 The sole issue on appeal is whether the District Court abused its discretion in dismissing Udelhoven's petition for judicial review for lack of subject matter jurisdiction.
BACKGROUND
¶ 3 Udelhoven and the CSED initiated a child support action against Mark T. McGurran. On September 14, 1998, an administrative law judge for the CSED issued a Financial and Medical Support Order (hereinafter, the administrative order).
¶ 4 Pursuant to § 2-4-702(2)(a), MCA, the parties had 30 days within which to petition for judicial review of the administrative order by filing a petition in the district court for the county in which the petitioner resides, in this case, the First Judicial District Court for Lewis and Clark County. Five days before the filing deadline, Udelhoven prepared and mailed a Petition for Judicial Review of the administrative order. She erroneously mailed the petition to the CSED offices, however, rather than to the District Court. Upon discovering the error, Udelhoven prepared and mailed a second petition to the District Court. The court received the petition on October 21, 1998, two days after the filing deadline expired.
¶ 5 The CSED moved to dismiss Udelhoven's petition for review on the grounds that the petition was not timely filed and that, as a result, the District Court lacked subject matter jurisdiction to hear the case. Udelhoven filed a motion under Rule 6(b), M.R.Civ. P., seeking an enlargement of time in which to file her petition and asserting that her failure to file the petition within the 30-day deadline had been the result of excusable neglect. The District Court denied Udelhoven's motion for enlargement of time and granted CSED's motion to dismiss.
¶ 6 Udelhoven then filed a motion under Rule 60(b), M.R.Civ.P., seeking relief from the court's order dismissing her petition and the court denied that motion. Udelhoven appeals from both the denial of her motion for enlargement of time under Rule 6(b), M.R.Civ.P., the dismissal of her petition for judicial review and the denial of her motion for relief under Rule 60(b), M.R.Civ.P.
STANDARD OF REVIEW
¶ 7 We review a district court's grant of a motion to dismiss to determine whether the court abused its discretion. Davis v. Davis (1996), 277 Mont. 188, 190, 921 P.2d 275, 277. However, a district court's determination that it lacks jurisdiction over a matter is a conclusion of law which we review to determine whether the district court's interpretation of the law is correct. Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 328, 922 P.2d 469, 472.
DISCUSSION
¶ 8 Did the District Court abuse it discretion in dismissing Udelhoven's petition for judicial review for lack of subject matter jurisdiction?
¶ 9 Udelhoven contends that the District Court erred in dismissing her petition for lack of subject matter jurisdiction because Rule 6(b), M.R.Civ.P., authorized the court to extend the 30-day filing deadline on grounds of excusable neglect, thereby vesting itself with jurisdiction over the case.
¶ 10 More particularly, Udelhoven points out that this Court analogized a "petition for judicial review" to an "appeal" in MCI Telecomm. Corp. v. Montana Dept. of Public *971 Serv. Regulation (1993), 260 Mont. 175, 179, 858 P.2d 364, 367. From that premise, Udelhoven argues that the district court's authority to extend filing deadlines for good cause under Rule 5(c), M.R.App.P., also exists, by analogy, to petitions for judicial review of administrative rulings. Moreover, she asserts that permitting the enlargement of filing deadlines for petitions for judicial review would constitute a "logical and judicious step" in light of this Court's holding in MCI with regard to the application of Rule 6(e), M.R.Civ.P., to petitions for judicial review.
¶ 11 Section 2-4-702(1)(a), MCA, permits a person who has exhausted the administrative remedies within an agency to seek judicial review in the district court. As a general rule, we encourage a liberal interpretation of procedural rules governing judicial review of administrative decisions, rather than taking an overly technical approach, so as to best serve justice and allow the parties to have their day in court. Hilands Golf Club, 277 Mont. at 330, 922 P.2d at 473.
¶ 12 A district court's authority to review administrative rulings, however, is constrained by statutes duly enacted by the Montana Legislature, including the applicable statute of limitations for such review. MCI, 260 Mont. at 178, 858 P.2d at 366. Here, the statute of limitations for filing a petition for judicial review of an administrative order is 30 days. See § 2-4-702(2)(a), MCA. Furthermore, Rule 82, M.R.Civ.P., expressly provides that, with exceptions not at issue in this case, "these rules shall not be construed to extend or limit the jurisdiction of the district courts of Montana or the venue of actions therein." Thus, the filing deadlines for petitions for judicial review are jurisdictional in nature, and the failure to seek judicial review of an administrative ruling within the time prescribed by statute makes such an "appeal" ineffective for any purpose. MCI, 260 Mont. at 177, 858 P.2d at 366 (citation omitted).
¶ 13 A district court's authority to extend certain deadlines in civil cases is found in Rule 6(b), M.R.Civ.P., which states in pertinent part:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect....
As a threshold matter, we note that Rule 6(b), M.R.Civ.P., by its terms, applies only to acts required by the rules of civil procedure or by court order. It does not apply to acts required within a statutory time frame provided by the Legislature and, therefore, Rule 6(b) does not authorize the District Court to extend the filing deadline on Udelhoven's petition for judicial review.
¶ 14 Moreover, we find unpersuasive Udelhoven's argument that the District Court's authority to grant an extension of time to file a petition for judicial review exists by analogy to Rule 5(c), M.R.App.P. The time for filing an appeal is dictated by the statute which confers the right to appeal. MCI, 260 Mont. at 178, 858 P.2d at 366. While a district court's limited authority to extend filing deadlines on appeal to this Court is explicitly set forth in Rule 5(c), M.R.App.P., no comparable provision authorizes the extension of deadlines for petitions for judicial review of administrative rulings. To extend the jurisdiction of the District Court by analogy to a rule of appellate procedure not applicable in this case would directly contravene the Legislature's proper role in enacting statutes of limitations which limit that jurisdiction.
¶ 15 Udelhoven's reliance on our holding in MCI also is misplaced. The issue before us in MCI was whether the "three-day mail rule" set forth in Rule 6(e), M.R.Civ.P., applied to petitions for judicial review of administrative proceedings. We held that Rule 6(e), M.R.Civ.P., did apply in those cases. MCI, 260 Mont. at 180, 858 P.2d at 368. That holding, however, addressed only the manner in which the statutory 30-day filing *972 deadline is to be calculated, not whether the district court could exercise jurisdiction after the expiration of the 30-day filing period.
¶ 16 We conclude that Rule 6(b), M.R.Civ.P., is not applicable to petitions for judicial review of administrative proceedings either by its terms or by analogy, inasmuch as the application of that Rule would operate to extend the jurisdiction of the district courts beyond that permitted by statute.
¶ 17 Udelhoven also argues that under Rule 60(b), M.R.Civ.P., the District Court had the authority to grant her relief from the order dismissing her petition under a similar standard of excusable neglect. This argument also is unpersuasive.
¶ 18 Rule 60(b), M.R.Civ.P., states in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect....
¶ 19 In denying Udelhoven's motion for relief under Rule 60(b), M.R.Civ.P., the District Court determined there was no basis for setting aside its prior order because it was "automatically deprived of jurisdiction to entertain a petition for judicial review after the 30-day period has expired." We agree. Rule 60(b), M.R.Civ.P., cannot be applied to essentially "revest" jurisdiction where none existed in the first instance.
¶ 20 We hold that the District Court correctly concluded that it did not have jurisdiction to consider Udelhoven's petition for judicial review of the administrative order and that it did not abuse its discretion in dismissing her petition on those grounds.
¶ 21 Affirmed.
J.A. TURNAGE, C.J., TERRY N. TRIEWEILER, WILLIAM E. HUNT, SR., and JAMES C. NELSON, JJ., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DWAYNE MANNING,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF No. 04-6161
JUSTICE; BUREAU OF PRISONS;
WARDEN SHEARIN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-03-1799-AW)
Submitted: May 28, 2004
Decided: July 26, 2004
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Dwayne Manning, Appellant Pro Se. Thomas Michael DiBiagio,
United States Attorney, Baltimore, Maryland; Matthew Wayne Mel-
lady, UNITED STATES DEPARTMENT OF JUSTICE, Annapolis
Junction, Maryland, for Appellees.
2 MANNING v. USDOJ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dwayne Manning, a federal prisoner, filed a complaint pursuant to
the Federal Tort Claims Act ("FTCA"), alleging that, during a search
of his prison housing unit, staff confiscated and failed to return a
photo album. He also contended that staff failed to secure his locker
following the search, resulting in the loss of clothing, electronics,
shoes, books, and detergent.
The district court granted Defendants’ motion for summary judg-
ment, reasoning that the uncontroverted affidavits submitted by the
Defendants showed that the Defendants secured the locker and that
the album was returned. On December 11, Manning filed a Fed. R.
Civ. P. 59(e) motion for reconsideration, contending that the court
improperly failed to consider his response to summary judgment
because it lacked a certificate of service. The district court denied
Manning’s motion for reconsideration. The court stated that nothing
in Manning’s response would compel a different result. Specifically,
the court reasoned that the photo album was returned and that Man-
ning failed to prove the value of the other items lost. Manning timely
appealed.1
The FTCA "permits the United States to be held liable in tort in the
same respect as a private person would be liable under the law of the
place where the act occurred." Medina v. United States, 259 F.3d 220,
223 (4th Cir. 2001). This court reviews de novo a district court’s
order granting summary judgment. Moore Bros. Co. v. Brown &
Root, Inc., 207 F.3d 717, 722 (4th Cir. 2000). Summary judgment is
1
The timely filing of a Fed. R. Civ. P. 59(e) motion tolls the time to
appeal. Fed. R. App. P. 4(a)(4)(A). Thus, Manning’s notice of appeal
filed within sixty days of the denial of his motion for reconsideration was
timely as to both the motion for reconsideration and the underlying order.
Id.
MANNING v. USDOJ 3
only appropriate when there is no genuine issue of material fact that
could lead a trier of fact to find for the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "In determining
whether to grant summary judgment, all justifiable inferences must be
drawn in favor of the non-movant." Miltier v. Beorn, 896 F.2d 848,
852 (4th Cir. 1990). The non-movant is entitled "to have the credibil-
ity of his evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved favorably
to him." Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979). To raise a genuine issue of material fact, Manning may
not rest upon the mere allegations or denials of his pleadings. Fed. R.
Civ. P. 56(e). Rather, he must present evidence supporting his posi-
tion through "depositions, answers to interrogatories, and admissions
on file, together with . . . affidavits, if any." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
Manning’s claims can be separated into two categories: (1) the
photo album and (2) all other personal property. The district court dis-
missed the photo album claim, finding that the album had been
returned to Manning. However, Manning made clear in his opposition
that he was making no claim regarding the photo album that was
returned to him. Instead, he was claiming that a second album was
taken (or lost) and never returned. This claim is supported by the dec-
laration of inmate Thomas Davis, who stated that Manning owned
two photo albums, both of which were missing following the incident.
In addition, Manning submitted a declaration under penalty of perjury
that two photo albums were missing and only one had been returned.
Moreover, the documents submitted by Defendants in their summary
judgment motion support Manning’s claim that he had two photo
albums. A personal property report shows that, on August 11, 2000,
Manning had one photo album, and that, on April 10, 2001, he pur-
chased another one. Thus, we find that the district court improperly
determined that there was no genuine issues of material fact regarding
the second photo album.
With regard to the remaining items, the district court found that
Manning had not shown that his property was taken and, even if he
had, he had failed to prove the value of those items. First, we find that
Manning has raised a genuine issue of material fact regarding whether
prison officials left his locker unlocked, thereby permitting other
inmates to take his belongings. While prison officials are not insurers
4 MANNING v. USDOJ
of an inmate’s property, they are required to "provide suitable quar-
ters and provide for the safekeeping, care, and subsistence of all per-
sons." 18 U.S.C. § 4042(a)(2).
Manning supports his claim that the Defendants breached this duty
with the declarations of inmates Jay Brooks and Kevin Jones, who
both asserted that, on the day in question, their lockers were left open
after a search, and, relevant here, "just about all of the lockers [were]
open and a lot of property was missing." In addition, Manning himself
submitted an affidavit, stating that his locker was left open after a
search by prison officials. Thus, Manning’s evidence is in direct con-
tradiction to the Defendants’ evidence that none of the lockers were
left open.2 At the summary judgment stage, we must accept Man-
ning’s view of the evidence. Thus, there is a genuine issue of material
fact as to whether Defendants were negligent.
Regarding damages, Defendants’ submissions included receipts for
specific purchases by Manning that directly correlate to the property
described in his complaint. Moreover, while the district court cor-
rectly stated that "[a]lthough plaintiff later complained that many
items of personal property were taken, his last property inventory
shows that he owned only one pair of tennis shoes, one set of head-
phones, one pair of sweat pants, one sweat shirt, and one paperback
book," many of the receipts submitted by Manning post-date the latest
inventory. Specifically, after the inventory, the evidence shows that
Manning purchased a photo album ($2.35), headphones ($33.80),
Tide ($4.60), Nikes ($62.50), a shirt ($8.15), and a sweat shirt
($13.65). Thus, Manning has made a sufficient showing to avoid sum-
mary judgment on his claims.
Accordingly, we vacate the district court’s order granting summary
judgment and remand for further proceedings. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED
2
Defendants did not dispute that leaving inmates’ lockers unlocked
would violate their duty of reasonable care.
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THE AITORNEY GENEWAL
~FTExAs
The Honorable B. L. DeBerry Opinion No. H- 113
Texas Highway Department
11th and Braeos Re: The status of signboards
Austin, Texas 78701 as realty or personalty
for condemnation purposes.
Dear Mr. DeBerry:
You have requested our opinion on the following question:
“In our condemnation proceeding, should sign-
boards which are interred in the ground on the property
of the landowner, lessor, be treated the same as any
other realty such as fences, etc., or should such sign-
boards be treated as personalty because of the special
terms of the please agreements between the landowner
and the lessee, . . . .‘I
Your question is prompted by the rule of law that, under normal circum-
stances, personalty, because of its removable character is not included in
determining compensation for condemnation purposes.
The sample “leases” attached to your letter provide in one way or
another that “all signs and improvements placed on the above mentioned
property pursuant to this lease are now and forever the exclusive property
of the lessee and may be removed by them at any time. ” This “lease” pro-
vision would indicate that between the parties the signs are considered per-
sonalty.
Whether the agreements are actually “leases, ” or only licenses,
generally, if the signs were erected and interred in the ground, they would
b,e considered realty for condemnation purposes. In Texas, the character of
,property as realty or personalty, for condemnation proceedings, is not affected
by any private agreement designating its character. Texas Pig Stands v.
p. 545
The Honorable Mr. B. L. DeBerry, page 2 (H-113)
Krueger, 441 S. W. 2d 940 (Tex. Civ. App., San Antonio, 1969, err. ref.,
n. r. e. ); Brasos River Conservation and Reclamation District v. Adkisson,
173 S. W. 2d 294 (Tex. Civ. App. , Eastland, 1943, err. ref). In the Adkisson
case, the question presented was:
“Did the Court properly require the district to
pay appellee for the property taken, including casing
and other fixtures affixed to the leasehold estate,
where the lease, producing wells, and such equipment
were inundated by waters of the district’s reservoir,
even though as between the Appellee as Lessee and
the original landowners as Lessors, Appellee had the
privilege of removing such fixtures at the termination
of the lease?” (emphasis added)
The Court answered in the affirmative because of the rule applied in
condemnation cases and approved the following statement: ” . . . Where
fixtures are of such a character that if put in by the owner, they would
constitute a part of the real estate, they must be paidfor as ‘real estate’
by the party condemning the land. ”
Accordingly, in condemnation proceedings, in determining whether
signboards which are interred in the ground constitute realty or personalty,
they should be treated as though they were owned and had been erected by
the landowner, notwithstanding private agreements about the matter.
SUMMARY
In condemnation proceedings signboards which
are interred in the ground should be treated as though
they were owned and had been erected by the landowner
in order to determine whether they constitute personalty
or realty, notwithstanding private agreements about the
matter.
Attorney General of Texas
p. 546
The Honorable B. L. DeBerry. page 3 (H-113)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 547
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10488
Plaintiff-Appellee, D.C. No. 2:18-cr-00214-SPL-1
v.
MEMORANDUM*
JESUS JAIME FIGUEROA, AKA Jesus
Jamie Figueroa,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Jesus Jaime Figueroa appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
conspiracy to possess with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 846; and possession with intent to distribute a controlled substance,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II) and
18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Figueroa contends that the district court erred by denying his request for a
minimal role adjustment under U.S.S.G. § 3B1.2(a). We review the district court’s
application of the Guidelines to the facts for abuse of discretion. See United States
v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). Under the
circumstances of this case, including the fact that Figueroa was entrusted to
transport and deliver a significant amount of cocaine, the district court did not
abuse its discretion in determining that, while Figueroa qualified for a minor role
reduction pursuant to U.S.S.G. § 3B1.2(b), he was not “plainly among the least
culpable of those involved in the conduct of [the] group.” See U.S.S.G. § 3B1.2
cmt. n.4; see also United States v. Awad, 371 F.3d 583, 591 (9th Cir. 2004)
(minimal role reduction restricted to cases presenting exceptional circumstances).
AFFIRMED.
2 18-10488
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re GREEN/WILDER, Minors. July 12, 2018
Nos. 341459; 341461; 341462
Wayne Circuit Court
Juvenile Division
LC No. 15-520777-NA
No. 341464
In re KC WILDER, Minor. Wayne Circuit Court
Juvenile Division
LC No. 12-508935-NA
Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.
PER CURIAM.
In Docket No. 341459 of these consolidated appeals1, respondent-mother appeals by right
the order terminating her parental rights to EG, JG, and CW. In Docket No. 341461, respondent-
father Christopher Wilder appeals by right the order terminating his parental rights to CW. In
Docket No. 341462, respondent-father Randy Green appeals by right the order terminating his
parental rights to EG and JG. In Docket No. 341464, respondent-father Wilder appeals by right
the order terminating his parental rights to KW.2 We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Child protective proceedings commenced for all four children in September 2015.
Petitioner, Department of Health and Human Services (DHHS), filed a petition seeking removal
of the children from respondent-mother’s and Wilder’s home, alleging that respondent-mother
and Wilder had substance abuse issues, that their housing was unsuitable, that Wilder had several
1
See In re Green/Wilder Minors; In re KC Wilder Minor, unpublished order of the Court of
Appeals, entered December 27, 2017 (Docket Nos. 341459; 341461; 341462; 341464).
2
Respondent-mother is not KW’s mother. KW’s mother is deceased.
-1-
domestic violence convictions, and that he had recently overdosed on opiates. Petitioner also
alleged that Green had not supported his children in several years and had a history of substance
abuse. The trial court took jurisdiction over the children when respondent-mother and Green
admitted the allegations contained in the petition, and after a bench trial regarding Wilder. EG
and JG were placed with their paternal grandparents, while KW and CW were placed with their
paternal grandmother. Petitioner provided all respondents with treatment plans in December
2015.
Over the next 15 months, respondents all failed to comply with their treatment plans.
Respondent-mother and Wilder never obtained suitable housing. They never submitted to
petitioner’s drug screens, although they did provide some drug screens for the trial court
immediately before or after hearings. They also never attended domestic violence counseling
despite Wilder’s extensive history of domestic violence and a referral from their caseworker for
those services. Wilder never participated in infant mental health services with his children,
although he did participate in parenting classes. Green initially complied with most of his court-
ordered services, but began testing positive for cocaine in November 2016, and was incarcerated
in July 2017. Green never completed substance abuse services. On March 8, 2017, petitioner
filed supplemental petitions seeking the termination of respondents’ parental rights. On May 8,
2017, the trial court conducted a bench trial on the termination petitions. During the bench trial,
respondents each separately made admissions, which the trial court relied upon in finding that
statutory grounds existed for the termination of respondents’ parental rights.
The trial court conducted a best-interest hearing on four separate dates between June and
October 2017. At the conclusion of the best-interest hearing, the trial court found that
respondents were bonded with their children and that the children were doing well in their
relative placements, but that the children’s need for stability, along with their foster parents’
willingness to adopt them, supported its conclusion that termination of respondents’ parental
rights was in the best interests of each child. The trial court subsequently entered an order
terminating respondents’ parental rights. These appeals followed.
II. STANDARD OF REVIEW
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). This Court reviews for
clear error a trial court’s factual determination that statutory grounds exist for termination. Id.;
MCR 3.977(K). “Appellate courts are obliged to defer to a trial court’s factual findings at
termination proceedings if those findings do not constitute clear error.” In re Rood, 483 Mich
73, 90; 763 NW2d 587 (2009). “A finding of fact is clearly erroneous if the reviewing court has
a definite and firm conviction that a mistake has been committed, giving due regard to the trial
court’s special opportunity to observe the witnesses.” In re BZ, 264 Mich App 286, 296-297;
690 NW2d 505 (2004).
Once a statutory ground for termination of parental rights has been established, the trial
court must order the termination of parental rights if it finds by a preponderance of the evidence
“that termination of parental rights is in the child’s best interests.” MCL 712A.19b(5); In re
Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error the trial
-2-
court’s best-interest determination. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144
(2012).
III. STATUTORY GROUNDS FOR TERMINATION
Respondents all argue that the trial court clearly erred by finding that a statutory ground
existed for the termination of their parental rights. We disagree.
The trial court terminated each of respondents’ parental rights under
MCL 712A.19b(3)(c)(i), (g), and (j). Those provisions state in relevant part as follows:
(3) The court may terminate a parent’s parental rights to a child if the
court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds either
of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the child’s age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
MCR 3.971 allows a respondent in a child protective proceeding to make a plea of
admission to the allegations in a petition, at any time after the filing of the petition. A
respondent who pleads to the allegations in a petition waives a later challenge on appeal to the
sufficiency of the evidence supporting statutory grounds for termination of parental rights. In re
Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (finding that where the respondent
pleaded no contest to the allegations in the petition at a termination hearing and she claimed no
irregularity in her plea on appeal, her argument that the evidence to support termination was not
clear and convincing was waived). A respondent may not assign as error on appeal something
that he or she admitted to below; allowing a respondent to do so would permit the respondent to
“harbor error as an appellate parachute.” Id. In other words, “ ‘A party cannot stipulate [to] a
-3-
matter and then argue on appeal that the resultant action was error.’ ” Holmes v Holmes, 281
Mich App 575, 588; 760 NW2d 300 (2008), quoting Chapdelaine v Sochocki, 247 Mich App
167, 177; 635 NW2d 339 (2001). Further, a respondent who pleads to the allegations in a
petition to terminate parental rights waives challenge on appeal to the sufficiency of the evidence
supporting termination. Hudson, 294 Mich App at 264. Each respondent has therefore waived
any challenge to the evidence in support of statutory grounds for termination unless his or her
admission was not knowingly, understandingly, and voluntarily made, or lacked a factual basis.
Hudson, 294 Mich App at 264; see also MCR 3.971(C). Respondents make no argument that
their admissions were invalid for those reasons; rather they merely assert that the trial court
lacked clear and convincing evidence that a statutory ground for termination existed.
Even if respondents had challenged their admissions, we would conclude the trial court
did not clearly err by accepting them. At the May 8, 2017 bench trial on the supplemental
petition for termination of parental rights, respondents each separately admitted the existence of
a statutory ground for termination. Respondent-mother admitted that EG, JG, and CW were
removed from her home on September 24, 2015 and that the trial court gave her a treatment plan
on December 8, 2015. She further admitted that she had not completed the requirements of her
treatment plan and that “the conditions that existed then, some of them still exist today.” Relying
on respondent-mother’s admissions, the trial court found that a statutory basis existed for
terminating her parental rights.
Wilder testified that he was the father of CW and JW. He further admitted that he was
given a treatment plan in December 2015, that there were certain tasks that he was asked to do,
and that he had not yet completed those tasks. He also testified that he understood that his
admissions gave the trial court sufficient grounds to terminate his parental rights. Relying on
Wilder’s admissions, the trial court found that a statutory basis existed for terminating his
parental rights.
Finally, Green admitted that EG and JG were removed from respondent-mother’s care,
that he was given a treatment plan in December 2015, that there were certain tasks that he was
asked to do, and that he had not successfully completed the treatment plan, including his required
drug treatment. He testified that he understood that his admissions gave the trial court sufficient
grounds to terminate his parental rights. Relying on Green’s admissions, the trial court found
that a statutory basis existed for terminating his parental rights.
All three respondents admitted the existence of statutory grounds to terminate his or her
parental rights, as allowed by MCR 3.971(A). The record establishes that respondents’
admissions were knowingly, understandingly, and voluntarily made, and had a factual basis. The
trial court advised respondents of their right to a trial, their right to cross-examine witnesses,
their right to present witnesses, and petitioner’s burden of proof in establishing the alleged
statutory grounds. Respondents indicated that they understood those rights. Further,
respondents’ admissions that they had been offered a variety of services, that they had failed to
complete those services or comply with their treatment plans, and that the conditions that led to
the adjudication therefore continued to exist, combined with the fact that they had been given
time to make changes, established a factual basis to find that statutory grounds for termination
existed under MCL 712A19b(3)(c)(i), (g), and (j). See In re White, 303 Mich App 701, 710; 846
NW2d 61 (2014). Because respondents’ pleas of admission were knowingly, understandingly,
-4-
and voluntarily made, as well as accurate, respondents have therefore waived any appellate
challenge to the existence of a statutory basis for terminating their parental rights. Hudson, 294
Mich App at 264.3
IV. BEST-INTEREST DETERMINATION
Respondent-mother and Green4 both argue that the trial court erred by finding that the
termination of their parental rights was in their children’s best interests. We disagree.
The trial court should weigh all the evidence available to determine the children’s
best interests. To determine whether termination of parental rights is in a child’s
best interests, the court should consider a wide variety of factors that may include
the child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [White, 303 Mich App at 713-714 (quotation marks and
citations omitted).]
Respondent-mother and Green both argue that they had a significant bond with their
respective children and that the children’s placement with relatives weighed against the
termination of their parental rights. At the conclusion of the lengthy best-interest hearing, the
trial court acknowledged that respondent-mother and Green each loved their children and there
was a bond between each of them and their children. However, the trial court also addressed the
children’s need for permanency, stability, and finality, as well as the advantages of relative-care
placement over respondent-mother’s and Green’s homes. Respondent-mother was homeless at
the time of termination and had not addressed many of the issues that had led to adjudication,
most notably her substance abuse. Green was incarcerated at the time of termination.
Respondent-mother and Green each acknowledged that all of their respective children were
placed with their paternal grandparents, and that the relative-care placements provided safe and
secure environments for the children. The trial court found that the relative-care placements
offered stability that respondent-mother and Green each were unable to provide. The trial court
also considered the fact that the children’s parental grandparents were willing to adopt them if
respondent-mother’s and Green’s parental rights were terminated. Contrary to respondent-
mother’s and Green’s contentions, the trial court did consider their bond with the children and
their placement in relative care. However, other factors weighed in favor of termination of their
parental rights; the trial court did not clearly err by determining that these other factors
outweighed any countervailing considerations. See White, 303 Mich App at 713.
3
In light of our holding, we do not address Wilder and Green’s arguments that petitioner failed
to make reasonable efforts at reunification and properly provide them with services.
4
Wilder presents no argument regarding the trial court’s best-interest determination.
-5-
Respondent-mother and Green also both assign error to the trial court’s failure to order
guardianship for the children with their grandparents with whom they were placed. We disagree.
The purpose of a guardianship is to avoid the termination of parental rights. In re Mason, 142,
168-169; 782 NW2d 747 (2010). A guardianship can allow a child to keep a relationship with a
parent when placement with that parent is not currently possible. In re TK, 306 Mich App 698,
705; 859 NW2d 208 (2014). However, MCL 712A.19a(4), the statute authorizing guardianship,
“contemplates the appointment of a guardian only after the permanency planning hearing.” TK,
306 Mich App at 707. And “the appointment of a guardian is only appropriate after the court has
made a finding that the child cannot be safely returned to the home, yet initiating termination of
parental rights is clearly not in the in child’s best interests.” Id. If the trial court determines that
termination is not in the child’s best interests, it may then “find that it is in the child’s best
interests” to order a guardianship. Id.
Here, the trial court determined that termination was in the children’s best interests. In
doing so, the trial court explicitly considered their placement with relatives and the possibility of
guardianship. See Mason, 486 Mich at 164. The trial court stated that it considered the
possibility of guardianship, especially with regard to EG, the youngest child (and thus the child
with the longest time, before reaching adulthood, for Green or respondent-mother to become
capable of parenting him). But the trial court ultimately stated that termination of parental rights
and the subsequent possibility of adoption by the children’s relatives was in the children’s best
interests, for the reasons discussed. The trial court did not clearly err by doing so. Olive/Metts,
297 Mich App at 40.
In summary, the trial court did not clearly err by concluding that respondents’ admissions
provided a basis for its holding that statutory grounds existed for the termination of respondents’
parental rights. Because respondents’ pleas of admission were knowingly, understandingly, and
voluntarily made, as well as accurate, they have waived their various challenges to the
sufficiency of the evidence supporting the trial court’s finding. Further, for the reasons stated,
the trial court did not clearly err by determining that the termination of respondent-mother’s and
Green’s parental rights was in the children’s best interests.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ Mark T. Boonstra
-6-
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915 F.2d 1561
Tumpa (Robert D.)v.Dubinon (J., Officer), Beck (Officer), City of Pittsburgh
NO. 89-3197
United States Court of Appeals,Third Circuit.
SEP 28, 1990
Appeal From: W.D.Pa.,
Standish, J.
1
AFFIRMED.
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} |
168 B.R. 102 (1994)
In re Gary P. GRIMM & Ann E. Grimm, Debtors-in-possession.
Bankruptcy No. 91-12262-AB.
United States Bankruptcy Court, E.D. Virginia, Alexandria Division.
June 7, 1994.
*103 *104 David R. Kuney, Michael L. Shor, David & Hagner, P.C., Washington, DC, for Grimms.
David B. Tatge, Ginsburg, Feldman & Bress, Chartered, Washington, DC, for FDIC.
Frank Bove, Office of U.S. Trustee, Alexandria, VA, for U.S. Trustee.
MEMORANDUM OPINION
MARTIN V.B. BOSTETTER, Jr., Chief Judge.
At issue in this matter is whether the record should be reopened on remand. In *105 March 1993, the Court approved the fourth and final fee application of the law firm of David & Hagner, P.C. over the objections of the Federal Deposit Insurance Corporation ("FDIC"). The fees were for services rendered by David & Hagner in defending Gary and Ann Grimm (the "Grimms") against a dischargeability suit brought by the FDIC. The FDIC appealed from the order awarding fees. The District Court then remanded the matter with instructions to make a factual finding as to whether the services rendered by David & Hagner benefitted the bankruptcy estate. See In re Grimm, 156 B.R. 958 (E.D.Va.1993).
Thereafter, David & Hagner moved this Court to reopen the record so it could present evidence on the issue of benefit to the estate. The FDIC objected to such reopening. After oral argument, we took the matter under advisement. For the reasons that follow, we grant David & Hagner's request to reopen the record.
I.
A more detailed review of the facts is warranted at this point. In June 1991, the Grimms filed their petition for relief under Chapter 11 of the Bankruptcy Code. The Grimms also submitted an application to employ David & Hagner as counsel, which was subsequently approved by this Court.
Three months after the filing of the petition, the FDIC, as receiver of a creditor-bank, initiated an adversary proceeding against the Grimms under 11 U.S.C. § 523(a)(2) and (a)(6). The FDIC's complaint alleged wrongdoing by the Grimms in obtaining two loans for the purpose of buying and expanding a chemical plant located in Demopolis, Alabama. The complaint sought a nondischargeable judgment of $8 million. The litigation commenced by the FDIC never reached trial, although it lasted a year and eight months.
David & Hagner asserts that, in January 1992, the Grimms and the unsecured creditors' committee entered into an agreement concerning the fees charged for defending the Grimms in the FDIC suit. The agreement permitted David & Hagner to collect from the estate a maximum of $100,000 as compensation for defending the Grimms in the FDIC litigation. The $100,000 cap was subsequently incorporated into the second amended plan of reorganization, which stated that the $100,000 award was still "[s]ubject to court approval." Second Amended Plan of Reorganization ¶ 3.1.
The second amended plan then proceeded to confirmation, notwithstanding the FDIC suit that was still pending before this Court. The plan bifurcated the FDIC's claim into secured and unsecured portions. The FDIC raised several objections to the plan, which the Court overruled when it confirmed the plan on December 15, 1992. A careful review of the record fails to reveal any indication that the FDIC objected to the plan on grounds that its dischargeability suit impeded the prospect of a successful reorganization.
During the course of the Chapter 11 case, David & Hagner filed three interim requests and a final request to collect fees and expenses from the estate. The FDIC objected to each of these requests, arguing inter alia that the fees and expenses incurred in connection with the FDIC suit benefitted only the Grimms, not the estate. At a hearing on March 16, 1993, this Court rejected the "benefit to the estate" argument advanced by the FDIC. The Court reasoned that denying compensation in dischargeability proceedings would, in effect, deny debtors legal representation in those instances. See Grimm, 156 B.R. at 960 n. 2 (quoting the decision of this Court). The ruling of this Court implicitly rejected the notion that "benefit to the estate" is a necessary element for an award of compensation under 11 U.S.C. § 330(a).[1] The Court thus overruled the FDIC's objections, *106 and granted David & Hagner's fourth and final request. The FDIC appealed.
In April 1993, the Grimms and the FDIC entered into a settlement agreement with respect to the FDIC litigation. As a result of that settlement, this Court signed a consent order dismissing the FDIC suit. The settlement, however, did not resolve the controversy concerning fees.
In August 1993, the District Court rendered its decision concerning the FDIC appeal. Observing that the issue of "benefit to the estate" was "not yet settled in this circuit," the District Court held that an award of compensation under § 330(a) required a "predicate judicial finding" that the fees and expenses were incurred for services that benefitted the estate. Grimm, 156 B.R. at 959, 961-62. In reaching its decision, the District Court rejected the view that services rendered in defending a dischargeability suit would never benefit the estate. It concluded, instead, that the facts of each case determined whether there was a benefit. See id. at 962 (citing In re Murray, 132 B.R. 808, 809-10 (Bankr.D.Mass.1991)). Because it concluded that no findings of fact had been made by this Court, the District Court remanded the matter, and instructed this Court to "examine all the fee requests for services and expenses incurred in connection with the discharge proceeding to ascertain whether any of these services or expenses benefitted the bankruptcy estate." Id. at 962 n. 8, 963.
As to reopening the record, the District Court said the decision to reopen was within this Court's discretion. Id. at 962 n. 8. It noted, however, that "the already voluminous record and the attention already devoted to the absence or presence of any benefit to the estate may militate against any extensive additional effort [to make a factual finding]." Id. It is clear, however, that the decision to reopen is within our discretion. Id. After the District Court rendered its decision, David & Hagner moved to reopen the record.
II.
A decision to reopen the record is within the sound discretion of the trial court. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1971). David & Hagner asserts two grounds to persuade the Court to reopen the record.[2] First, David & Hagner asks that the record be reopened so it may "address the background, interpretation, and significance" of the January 1992 agreement between the Grimms and creditors' committee. As noted above, the January 1992 agreement provided, among other things, that David & Hagner could collect up to $100,000 from the estate for defending the Grimms in the FDIC suit. Specifically, David & Hagner suggests that it "could" introduce evidence showing that the Grimms and the creditors' committee viewed the FDIC suit as "entirely meritless" and as an "impediment" to the Grimms' plan of reorganization.[3] Furthermore, David & Hagner suggests that the January 1992 agreement was "an essential part of the reciprocal promises and agreements which formed the basis for the entire Amended Plan of Reorganization."[4] In response, the FDIC raises several objections that we will address seriatim.
A.
The FDIC contends first that the record should not be reopened because the parties have "fully litigated" the issue of benefit to the estate. In its memorandum, the FDIC cites ten instances in the record that purportedly show that the issue of benefit to the estate has been "fully briefed" and "argued." For the reasons that follow, we conclude that the portions of the record cited by the FDIC fail to provide sufficient ground from which we can make a decisive finding of fact. See Still v. Rossville Bank (In re Chattanooga Wholesale Antiques, Inc.), 930 F.2d 458, 464-65 (6th Cir.1991) (concluding that *107 "reopening for the purpose of making a more complete record was not an abuse of discretion" by the trial court).
In support of its position that "benefit to the estate" was fully litigated, the FDIC cites the second, third and fourth fee applications of David & Hagner. Yet, the cited portions of the fee applications only address the twelve factors set forth in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978), for determining whether the amount requested is "reasonable" under 11 U.S.C. § 330.[5] They do not address whether the January 1992 agreement between the Grimms and the creditors' committee led to a workable and feasible plan.
The FDIC also makes reference to the transcripts of two hearings that dealt with David & Hagner's second and fourth fee applications, respectively. At those hearings, David & Hagner did assert that its defense benefitted the estate because the FDIC litigation threatened the formulation of a plan.[6] These assertions lack the foundation of testimony or documentary evidence from which the Court can make an adequate finding.
Additionally, reference is made to four FDIC memoranda objecting to each of the four fee requests. All four memoranda urged this Court to rule, as a matter of law, that services rendered to defend debtors never benefit the estate.[7] Hence, the legal arguments advanced in each memorandum fail to supply any factual ground that would support a finding.
Two of the four memoranda, however, attempt to advance a fact-based argument. Both memoranda complained of the "highly costly," "vexatious," "risky," and "unusually aggressive" motions practice conducted by David & Hagner in defense of the Grimms.[8] This Court does not condone any practice designed to delay litigation or enhance legal fees. Nevertheless, it stands to reason that David & Hagner's "aggressive" defense in the dischargeability suit may very well have been one of the factors leading the FDIC to the settlement table. This would be relevant if the FDIC suit initially impeded the formulation of the reorganization plan. In this regard, David & Hagner should have the opportunity to introduce any relevant proof.[9]
B.
The FDIC asserts that any deficiency in the record is a loss that should be borne by David & Hagner because David & Hagner had a duty to make the original record complete. In other words, David & Hagner should not be permitted to introduce evidence that it could have presented earlier.
The FDIC's position, however, is unpersuasive because the legal standard governing this case changed on appeal. See Skehan v. Board of Trustees, 590 F.2d 470, 479 (3d Cir.1978) ("[A] change in legal standards may warrant the reopening of a case where additional *108 testimony would be pertinent to the change of law.") (concluding, however, that the asserted change did not warrant a reopening of the record), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); Still v. Rossville Bank (In re Chattanooga Wholesale Antiques, Inc.), 78 B.R. 162, 165 (Bankr. E.D.Tenn.1987) ("A change in or clarification of the law has been recognized as a ground for re-opening the proof."), aff'd, 930 F.2d 458, 464-65 (6th Cir.1991); 6A James W. Moore & Jo Desha Lucas, Moore's Federal Practice ¶ 59.04[13], at 59-36 (2d ed. 1994).
Chattanooga Wholesale, supra, is one bankruptcy case addressing the issue of whether to reopen the record after such a change occurs. In that case, the Chapter 7 trustee initiated a preference action under 11 U.S.C. § 547 following conversion of the bankruptcy case from Chapter 11 to Chapter 7. As part of their prima facie showing, trustees must prove that the alleged preferential transfers gave the transferees more than they would receive in a Chapter 7 case. See 11 U.S.C. § 547(b)(5). Accordingly, at trial, the trustee presented testimony of what unsecured creditors received in the Chapter 11 phase, and what those creditors would receive in the Chapter 7 liquidation. Chattanooga Wholesale, 78 B.R. at 164. After the evidence had been presented, but before the bankruptcy court made its ruling, the Court of Appeals for the Sixth Circuit decided that, in order to make a showing under § 547(b)(5), trustees must introduce evidence of what the transferee would have received in a hypothetical Chapter 7 case that commenced on the same date the actual Chapter 11 petition was filed. See Neuger v. United States (In re Tenna Corp.), 801 F.2d 819 (6th Cir.1986). In light of the Tenna decision, the bankruptcy court concluded that "the trustee had failed to prove his case under § 547(b)(5)." Chattanooga Wholesale, 78 B.R. at 164.
The trustee then asked the bankruptcy court to reconsider its ruling and to reopen the record so he could introduce additional evidence. The bankruptcy court observed that, at the time of trial, the trustee "should have known that in a case which began under chapter 11 and converted to chapter 7, § 547(b)(5) could be interpreted to require proof of the actual effect of a bankruptcy case or proof of a hypothetical liquidation at the beginning of the case." Id. at 165 (emphasis added). The court said, however, that it would not penalize the trustee for failing to present the evidence "when the law became settled after trial but before the court entered judgment." Id. Particularly important to the bankruptcy court was the fact that reopening would not "require the [defendant] to submit its evidence again." Id.[10]
In the case at bar, the District Court altered the situation when it required fee applicants to prove that the services they rendered in defending dischargeability actions benefitted the estate. Before the appeal, there was no controlling authority that required a finding of benefit to the estate in order to recover fees and expenses for services rendered in dischargeability proceedings. Even the District Court acknowledged that the "benefit to the estate" issue was "not yet settled in this circuit," and it suggested, moreover, that the statute governing compensation, 11 U.S.C. § 330(a), was ambiguous as to whether a predicate finding of "benefit to the estate" was necessary. Grimm, 156 B.R. at 959, 961.
Although the FDIC asserted that a "majority" of courts had found that the defense of dischargeability suits never benefitted the estate, it conceded that there was at least a "splinter of authority" that adopted an opposing view. At the final hearing on fees, this Court rejected the "benefit to the estate" argument advanced by the FDIC. It was *109 not until this dispute reached the District Court that David & Hagner had to prove that their defense conferred a benefit. Consequently, David & Hagner should not be penalized for failing to present its evidence earlier.
Finally, as in Chattanooga Wholesale, this is "not the kind of case in which reopening will require the [FDIC] to submit its evidence again." Chattanooga Wholesale, 78 B.R. at 165 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971)). Because the FDIC does not have the burden of proof, it may choose to rest on the facts already presented, and attack the evidence introduced by David & Hagner. Accordingly, the FDIC will not suffer prejudice if the record is reopened.
In response to the foregoing, the FDIC relies on Patterson v. American Tobacco Company, 586 F.2d 300 (4th Cir.1978). There, the Court of Appeals for the Fourth Circuit remanded a case to the district court so the latter could make further findings of fact in light of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), a decision of the United States Supreme Court that modified the law of employment discrimination. The court of appeals observed that Teamsters had been rendered after the district court had made its original decision. The court of appeals thus remanded the case because the issue presented in Teamsters "emerged after the original record was made." Patterson, 586 F.2d at 304.
Relying on Patterson, the FDIC contends that the record should not be reopened because the issue of "benefit to the estate" emerged before the original record was closed. We do not read Patterson so narrowly. Although the court of appeals believed that a newly-formed issue was sufficient to reopen the record in that instance, it did not expressly exclude other grounds that would justify reopening.
The FDIC also points to a district court decision to reopen the record that was reversed by the Court of Appeals for the Third Circuit in Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir.), stay denied, ___ U.S. ___, 114 S.Ct. 909, 127 L.Ed.2d 352 (Souter, Circuit Justice 1994). In Casey, the United States Supreme Court "established the `undue burden' test as the sole standard for assessing the constitutionality of an abortion regulation. . . ." Id. at 854. Applying the test, the Supreme Court found most provisions of a state abortion statute to be constitutional. Id. On remand, however, the district court granted the plaintiffs' request to reopen the record so the plaintiffs could introduce evidence showing that the statute was unconstitutional under the "undue burden" test. In reversing the decision to reopen, the court of appeals reasoned that, because the Supreme Court had already applied the undue burden test in the first instance, its decision to uphold the statute was the law of the case, so reopening the record would only undermine the Supreme Court's mandate. See id. at 859-62.
Here, in contrast, the District Court established "benefit to the estate" as the governing standard, and remanded the matter so we could apply the standard in the first instance. Although the District Court may have been skeptical as to whether David & Hagner could prove benefit to the estate, see Grimm, 156 B.R. at 961, it did not apply the "benefit to the estate" standard to the facts of this case. Hence, reopening the record will not undermine the mandate of the District Court. Indeed, the District Court expressly stated that this Court had discretion to reopen the record "for good cause." Id. at 962 n. 8. Given the deficiencies in the record and the District Court's decision to require a showing of benefit to the estate, we conclude that good cause exists for reopening the record.[11]
*110 Before we proceed to other issues, we direct our attention to United States v. Virginia, 88 F.R.D. 656 (E.D.Va.1980), a decision that was rendered within our district. There, the Court of Appeals for the Fourth Circuit remanded an employment discrimination case to the district court in light of the former's decision in EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir.1979), and instructed the district court to reopen the record. See Virginia, 88 F.R.D. at 660. Notwithstanding the Fourth Circuit's mandate, the district court expressed its dissatisfaction with reopening the record because, in its view, any error of law committed at trial did not preclude the parties from developing or introducing evidence. See id. at 667-68.
The district court's reasoning in Virginia does not apply here due to the fact that, in Virginia, no significant change in the law occurred; the district court mentioned that Radiator Specialty "did not introduce any substantially new element into the law of employment discrimination," but merely shifted the burden of proving certain aspects of the case from the plaintiff to the defendant. Virginia, 88 F.R.D. at 667. Here, in contrast, a "substantially new element" of proving benefit to the estate has been imposed upon David & Hagner. The circumstances are therefore appropriate for the Court to exercise its discretion to reopen the record.[12]
C.
As noted above, David & Hagner suggests that the FDIC suit initially operated as an "impediment" to the reorganization plan. David & Hagner has indicated that, if the record were reopened, it "could" introduce evidence showing that the January 1992 agreement with the creditors' committee, in effect, prevented the FDIC suit from impeding the plan. In response, the FDIC notes that an essential element for plan confirmation is a finding by the court that the plan is feasible. See 11 U.S.C. § 1129(a)(11).[13] Because this Court confirmed the plan before the FDIC suit was settled, the FDIC contends (without citing any authority) that "res judicata" bars David & Hagner from asserting that the FDIC suit initially impeded the plan.
The term "res judicata" is sometimes used sweepingly to refer to two doctrines that address the preclusive effect of a prior judgment. Kaspar Wire Works, Inc. v. Leco Eng'g & Mach., Inc., 575 F.2d 530, 535 (5th Cir.1978). Under the first doctrine known as claim preclusion or true res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). To invoke claim preclusion, a party must establish the following three elements: "(1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits." Nash City Board of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.), cert. denied, 454 U.S. 878, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981).
Applying these elements, we note that an order confirming a plan of reorganization is a "final judgment on the merits" for purposes of res judicata. See Eubanks v. FDIC, 977 F.2d 166, 170-71 (5th Cir.1992); see also 11 U.S.C. § 1141(a) (stating that a confirmed plan binds the debtor and all parties *111 in interest regardless of whether a particular party accepted the plan); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Inv., Inc.), 162 B.R. 426, 433 (Bankr. S.D.N.Y.1993) ("[A] confirmed plan of reorganization has full preclusive effect and is binding on all parties thereto."). Furthermore, we assume without deciding that an "identity of parties" exists with respect to the reorganization plan and this fee application dispute. The sole remaining issue at this point is whether an "identity of claims" exists with respect to the reorganization plan and fee applications.
The Court of Appeals for the Fourth Circuit has adopted a transactional approach for determining whether two causes of action are the same. See Keith v. Aldridge, 900 F.2d 736, 740 (4th Cir.), cert. denied, 498 U.S. 900, 111 S.Ct. 257, 112 L.Ed.2d 215 (1990); Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). Hence, "the appropriate inquiry is whether the new claim arises out of the same transaction or series of transactions as the claim resolved by the prior judgment." Harnett, 800 F.2d at 1313.
Some courts of appeals have used the transaction-based approach to determine whether a confirmed plan precludes a suit that is filed after confirmation. See, e.g., Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869 (2d Cir.1991); Howe v. Vaughan (In re Howe), 913 F.2d 1138 (5th Cir.1990). In one leading decision, Sure-Snap, supra, the Court of Appeals for the Second Circuit held that res judicata precluded the lender liability suits that the debtor and its principals had brought against two banks after plan confirmation. The debtor in Sure-Snap had admitted that one of the banks had "forced" the debtor into bankruptcy when it called a loan early and terminated a line of credit to the debtor. Sure-Snap, 948 F.2d at 871, 875. Because this "lender conduct" formed, in part, the basis of the lender liability claims, the Sure-Snap court concluded that the reorganization plan and the lender liability claims were the same cause of action. Id. at 871, 874-75. As the court reasoned, "[the debtor's] very allegation that the banks' tortious conduct negatively influenced their business health, makes it hard-pressed to explain how the two causes of action the plan of reorganization and the lender liability claims did not comprise the same essential matter." Id. at 875.
The case at bar is distinguishable from Sure-Snap because the claims presented here are drawn from different transactions. Here, the FDIC's claim derives from the loans made to the Grimms in connection with their purchase and expansion of a chemical plant in Demopolis, Alabama. The transactions causing the Grimms to seek reorganization, however, are more broadly based. The disclosure statement reveals that the Grimms sought bankruptcy relief not only because of "substantial losses" incurred in connection with the Demopolis plant, but also because of the decline of the real estate markets in Maryland and Northern Virginia.[14]
Even more distinct are the transactions underlying David & Hagner's request for an administrative claim. Neither the Demopolis plant nor the real estate market provides the transactional basis for David & Hagner's request. Instead, the legal services rendered by David & Hagner are the source of its claim.[15]
Additionally, the court in Sure-Snap invoked res judicata to prevent the debtor from obtaining the proverbial "second bite of the apple." 948 F.2d at 870. The lender liability actions in Sure-Snap essentially were post-confirmation counterclaims filed against creditors. In contrast, the fee application filed by David & Hagner does not operate as a counterclaim against the FDIC. Instead, it functions as a request to receive a distribution under the Chapter 11 plan. Accordingly, the Court concludes that no "identity of claims" exists in the case at bar.
Contrary to the FDIC's position, two claims are not the same simply because they share a common issue. A common issue does, however, present the possibility of "issue *112 preclusion" or "collateral estoppel," which is the second doctrine falling under the rubric of res judicata. As the Supreme Court of the United States explained in Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876), "where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted. . . ." Id. at 353 (emphasis added). Consequently, we turn to the doctrine of collateral estoppel.
D.
Collateral estoppel precludes a party "from relitigating an issue that was actually litigated and decided in an earlier proceeding and that was necessary to the [earlier] decision." Combs v. Richardson, 838 F.2d 112, 113 (4th Cir.1988) (emphasis added). Our analysis need only focus on whether the issue has been actually litigated. Under collateral estoppel, an issue may be "actually litigated" even in the absence of a full-blown evidentiary hearing. However, a question of fact is actually litigated when it is (1) put into issue by the pleadings, (2) submitted to the trier of fact, and (3) determined by the trier of fact. Santopadre v. Pelican Homestead & Sav. Ass'n, 937 F.2d 268, 273 (5th Cir.1991); see also United States v. Young, 804 F.2d 116, 118 (8th Cir.1986) (stating that a fact established by stipulation, not judicial resolution, has not been "actually litigated," and "thus is the proper subject of proof in subsequent proceedings"), cert. denied, 482 U.S. 913, 107 S.Ct. 3184, 96 L.Ed.2d 673 (1987).
Nevertheless, the party invoking collateral estoppel has the burden of establishing that the issue was actually litigated. Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982) ("The burden is on the party asserting collateral estoppel to establish its predicates, and this of course includes presenting an adequate record for the purpose."). In Allen, the Court of Appeals for the Fourth Circuit declined to invoke collateral estoppel when, among other things, it was unclear from the trial record that an important element of the plaintiff's case had been contested in the first action. Id.
Similarly, in the instant case, it is unclear from the record whether the issue of plan feasibility was actually litigated at the confirmation hearing. Although the FDIC raises "res judicata" as a shield against David & Hagner's fee request, it fails to point to any portion of the record where the parties contested the issue of whether the FDIC suit impeded the prospect of a successful reorganization. Consequently, the FDIC has not met its burden with respect to collateral estoppel.[16]
Furthermore, to be confirmed, a reorganization plan must satisfy the predicates of 11 U.S.C. § 1129. In its objection to plan confirmation, the FDIC listed several predicates of § 1129(a) that the Grimm plan allegedly failed to meet. In the same objection, however, the FDIC did not list § 1129(a)(11), which requires the plan to be feasible.[17] Hence, the plan's feasibility was not put into issue by the pleadings. Accordingly, we cannot conclude that the feasibility issue was "actually litigated." Collateral estoppel therefore does not attach.
It is worth noting, additionally, that the evidence proffered by David & Hagner does not necessarily implicate the issue of feasibility. As noted earlier, David & Hagner suggests that it "could" introduce proof that the January 1992 agreement between the Grimms and the creditors' committee led to "the reciprocal promises and agreements which formed the basis for the entire Amended *113 Plan of Reorganization."[18] This evidence is relevant as to how the plan was created, not whether the plan was feasible. David & Hagner also says that it "could" introduce evidence showing that the FDIC suit was "entirely meritless."[19] Again, this evidence does not necessarily implicate the issue of feasibility. At most, it could support the position that the plan was feasible because a "meritless" FDIC suit would not impede the prospect of a successful reorganization.
E.
The FDIC also argues that its dischargeability action had merit and that, even if it lacked merit, David & Hagner still could not argue that its defense benefitted the Grimms and the estate. Whether David & Hagner's defense against a "meritless" FDIC suit benefitted the estate is an issue that should not be decided in the abstract. It is, rather, a question that is best left for determination after all the evidence has been presented. Even if we denied David & Hagner the opportunity to show that the FDIC suit lacked merit, David & Hagner could still introduce evidence showing that the January 1992 agreement contributed to the creation and preservation of the reorganization plan. Hence, even if we excluded evidence showing that the FDIC suit lacked merit, ample ground still remains for the Court to reopen the record.
Finally, the FDIC asserts that the dischargeability litigation could not have possibly impeded the plan. First, the FDIC alleges that the litigation would not have affected any dividends paid under the plan because the Grimms were not required to contribute any post-petition salary. Second, the FDIC argues that the alleged impediment was never removed by David & Hagner because the dischargeability litigation was settled after confirmation of the plan.
The situation, however, is not as clear-cut as the FDIC would have us believe. Although post-petition salary may not have been subject to the reorganization, the confirmed plan still required the Grimms to contribute approximately $250,000 that was supposed to come from "sources outside of the Bankruptcy Estate. . . ."[20] Whether David & Hagner did anything to safeguard that sum is an issue that is best left for an evidentiary hearing. Furthermore, the creditors' committee could have believed that the plan would remain viable after confirmation so long as David & Hagner continued to defend the Grimms. Again, whether the creditors' committee actually held that view is an issue that is best left for an evidentiary hearing.
While David & Hagner has the burden of proving benefit to the estate, we believe, in light of the circumstances, that David & Hagner should have the opportunity to meet that burden. Consequently, the Court will exercise its discretion to reopen the record.
III.
As additional grounds for reopening the record, David & Hagner cites "new evidence" that was produced after this Court granted David & Hagner's final request for fees and expenses. David & Hagner contends that, during the negotiations to settle the FDIC suit, the FDIC "voluntarily produced" an internal memorandum showing that the FDIC suit lacked merit and that the Grimms were honest. In response, the FDIC argues that the memorandum was inadvertently disclosed during settlement negotiations. The FDIC contends further that the contents of the memorandum are irrelevant, and that the memorandum itself is still protected by the attorney-client privilege and by Federal Rule of Evidence 408, which provides that certain communications made during settlement discussions are inadmissible to prove liability or the invalidity of a claim.
At this point, we need not resolve the controversy regarding the FDIC memorandum for two reasons. First, the initial grounds advanced by David & Hagner, which are discussed above in part II, are sufficient for reopening the record. Second, whether the FDIC waived the attorney-client privilege depends on the facts and circumstances surrounding the memorandum's disclosure. See FDIC v. Marine Midland Realty Credit *114 Corp., 138 F.R.D. 479 (E.D.Va.1991). Accordingly, we will decide the issue of waiver after the parties have presented evidence as to how the memorandum was disclosed.
Finally, while addressing the issues concerning the disclosed memorandum, the FDIC urged the Court to disregard the unsolicited, post-hearing brief that David & Hagner had filed. We decline to do so for two reasons. First, this Court has ruled that it will not resolve the issues concerning the disclosed memorandum until the evidence is presented. Second, this Court observes that, in response to the unsolicited brief filed by David & Hagner, the FDIC filed its own post-hearing brief totaling 30 pages plus four exhibits. Accordingly, the FDIC cannot be heard to argue that it was prejudiced by David & Hagner's post-hearing memorandum. Cf. Jungkurth v. Eastern Fin. Svcs. (In re Jungkurth), 74 B.R. 323, 325 (Bankr. E.D.Pa.1987) (allowing lender to file a reply brief in response to the unsolicited memorandum filed by the debtor).
IV.
For the foregoing reasons, David & Hagner's request to reopen the record is granted. An appropriate order will be entered.
NOTES
[1] 11 U.S.C. § 330(a) provides in pertinent part:
(a) After notice . . . and a hearing . . . the court may award to . . . the debtor's attorney
(1) reasonable compensation for actual, necessary services rendered by such . . . attorney, as the case may be . . . based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
[2] Part II of this opinion addresses the first ground asserted by David & Hagner. Because we find the first ground sufficient to reopen the record, we need not reach the second ground advanced by David & Hagner, which is discussed briefly in part III infra.
[3] Debtors' Supplemental Memorandum in Support of Request to Re-Open Record at 5.
[4] Id.
[5] See Harman v. Levin, 772 F.2d 1150, 1151 (4th Cir.1985) (stating that the Barber factors are "appropriate to determine attorney's fee awards in bankruptcy"). But see Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (observing that these 12 factors are "sometimes subjective," and "place[] unlimited discretion in trial judges and produce[] disparate results").
[6] See Transcript of April 21, 1992, at 8-9, 11; Transcript of March 16, 1993, at 6.
[7] See, e.g., Objection of Federal Deposit Insurance Corporation, as Receiver for the National Bank of Washington[,] to David & Hagner P.C.'s Fourth Interim Application for Compensation at 5 ("The near unanimous view that, as a matter of law, attorneys' fees incurred in the defense of dischargeability litigation may not be recovered from the estate because such labors do not actually benefit the estate should be applied in this case." (emphasis added and citation omitted)).
[8] See Objection of Federal Deposit Insurance Corporation, as Receiver for the National Bank of Washington, to Debtors' Second Interim Application for Allowance of Compensation at 7-12; Objection of Federal Deposit Insurance Corporation, as Receiver for the National Bank of Washington[,] to David & Hagner, P.C.'s Third Interim Application for Compensation at 7-14.
[9] The FDIC also cites a reply memorandum in which David & Hagner argued that res judicata barred the FDIC from objecting to the fee applications. See Reply to Objection of Federal Deposit Insurance Corporation as Receiver for the National Bank of Washington to David & Hagner, P.C.'s Fourth Interim Application for Compensation at 5-6. Again, the memorandum makes a legal argument, and hardly supplies any facts upon which adequate findings can be made.
[10] In affirming the decision to reopen the record, the Court of Appeals for the Sixth Circuit ruled that it was not necessary for the bankruptcy court to rely on Tenna in order to reopen. Chattanooga Wholesale, 930 F.2d at 464. The court of appeals concluded that it was not an abuse of discretion to reopen the record in order to make it more complete. Id. at 464-65. Likewise, we have concluded that reopening is necessary here in order to make the record more complete. See supra part II.A. Although it expressed that the bankruptcy court's reliance on Tenna was unnecessary, the court of appeals nevertheless affirmed the principle that "[a] change in legal standards is a proper ground for reopening proof." Chattanooga Wholesale, 930 F.2d at 464.
[11] After the Court of Appeals for the Third Circuit reversed the district court's decision in Casey, the plaintiffs asked Justice Souter, in his capacity as circuit justice, to stay the mandate of the court of appeals. See Planned Parenthood v. Casey, ___ U.S. ___, 114 S.Ct. 909, 127 L.Ed.2d 352 (Souter, Circuit Justice 1994). In denying their request, Justice Souter observed, among other things, that the plaintiffs had a fair opportunity to develop the record in the district court. Id. at ___, 114 S.Ct. at 911-12. Again, the situation in Casey is different from that of the instant case because, as Justice Souter noted, the United States Supreme Court applied the "undue burden" test in the first instance instead of instructing the district court to do so. See id. at ___, 114 S.Ct. at 911. Here, in contrast, the District Court established "benefit to the estate" as a necessary element for recovering compensation, and remanded the matter so we could apply that element in the first instance.
[12] Another important feature of Virginia is that the district court had no discretion because the court of appeals mandated the reopening of the record. Id. Indeed, that mandate prompted the district court, in the end, to allow the reopening.
[13] Section 1129(a)(11) provides:
(a) The court shall confirm a plan only if all of the following requirements are met:
* * * * * *
(11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.
[14] Second Amended Disclosure Statement at 12-13.
[15] See, e.g., Fourth Interim Application for Compensation for Debtors' Legal Counsel at 2-6.
[16] The court in Allen did invoke another doctrine judicial estoppel to preclude the plaintiff from asserting a position in the subsequent trial that was inconsistent with his position in the first trial. See id. at 1166-68. Likewise, we conclude that judicial estoppel precludes David & Hagner from asserting that the plan was unfeasible at the time of confirmation because that would be a position that is contrary to the position taken at the confirmation hearing. Judicial estoppel, however, would not prevent David & Hagner from showing that the FDIC suit initially impeded the plan, and that David & Hagner's efforts removed the "impediment" before confirmation.
[17] See Objections of the Federal Deposit Insurance Corporation, as Receiver for the National Bank of Washington[,] to Confirmation of the Debtors' Second Amended Plan of Reorganization at 1-2.
[18] Debtors' Supplemental Memorandum in Support of Request to Re-Open Record at 5.
[19] Id.
[20] Second Amended Plan of Reorganization ¶¶ 4.3, 5.7.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50404
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVA UPCHURCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-02-CR-66-2
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Alva Upchurch pleaded guilty to two counts of sexual
exploitation of children, and the district court sentenced her to
151 months in prison and a three-year term of supervised release.
Upchurch argues in this appeal that the district court erred in
determining that she had obstructed justice pursuant to U.S.S.G. §
*
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.
3C1.1 and adjusting her offense level accordingly.
Because Upchurch adduced no evidence in the district court to
rebut the facts recited in the presentence report (PSR), the
district court was free to adopt those facts and rely upon them in
sentencing Upchurch. See United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995).
The PSR details Upchurch’s attempt to persuade the victim to
recant the account of the underlying facts that she gave to police.
This incident forms a sufficient basis for the district court’s
imposition of the disputed adjustment. See U.S.S.G. § 3C1.1,
comment. (4(a)). Upchurch has not shown that the district court’s
findings on this issue are not “plausible in light of the record as
a whole.” United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.
1993) (internal quotations and citation omitted).
Upchurch argues that her attempt to have the minor victim
recant the account she gave the police occurred approximately two
days before the federal, as opposed to the state, investigation
began. The record contains nothing from which it may be inferred
that a federal investigation had commenced before Upchurch
attempted to have the minor victim recant, nor did the district
court or the PSR find or state that a federal (as opposed to a
state) investigation had then begun.
Upchurch relies on United States v. Clayton, 172 F.3d 347 (5th
Cir. 1999). Clayton, however, is inapposite, as there the
2
allegedly obstructive conduct occurred immediately after commission
of the offense, and before any investigation had commenced. While
our opinion there does refer to “the federal investigation,” there
is no suggestion in Clayton that there was ever any other
investigation, and it is apparent that there could not have been at
the time of the assertedly obstructive conduct, which was
essentially contemporaneous with the offense. Here the criminal
conduct constituting the federal offense (violation of 18 U.S.C. §
2251(a) where the “visual depiction was produced using materials
that have been mailed, shipped or transported in interstate or
foreign commerce by any means, including by computer”) had all
occurred and was the identical conduct that was allegedly under
investigation by the local police, as Upchurch was plainly aware,
at the time of her effort to cause the minor victim to recant which
was clearly designed to obstruct that and any other investigation
into that criminal conduct. The fact that the federal authorities
are not shown to have then commenced their investigation is in
these circumstances not determinative. See United States v.
Roberts, 243 F.3d 235, 238-40 (6th Cir. 2001), and authorities
there cited.
Upchurch’s argument that her efforts to have the victim recant
did not in fact significantly impede any investigation are without
merit. Such obstruction comes within U.S.S.G. § 3C1.1, comment
4(a) which covers “attempting” to “unlawfully influenc[e] a . . .
3
witness.” Upchurch’s reliance on United States v. Ahmed, 324 F.3d
368 (5th Cir. 2003), is misplaced, as Ahmed concerned only false
material statements to law enforcement officers and under U.S.S.G.
§ 3C1.1 comments 4(g) and 5(b), that form of obstruction normally
must have “significantly obstructed or impeded” the investigation
or prosecution.
Accordingly, the district court’s judgment is
AFFIRMED.
4
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875 P.2d 1174 (1994)
128 Or. App. 88
STATE of Oregon, Respondent,
v.
Kenneth Allen WRIGHT, Appellant.
93-1028; CA A79579.
Court of Appeals of Oregon.
Argued and Submitted March 31, 1994.
Decided May 25, 1994.
Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
WARREN, Presiding Judge.
Defendant appeals from the sentence imposed after he was convicted of burglary in the first degree and robbery in the first degree. ORS 164.225; ORS 164.415. At sentencing, the trial court imposed a condition of incarceration and stated that it would recommend conditions of post-prison supervision to the Parole Board. The judgment, however, imposes conditions of post-prison supervision and makes no recommendations. Defendant argues that the incarceration and post-prison supervision conditions are error, because they may be imposed only by the Department of Corrections, not by the sentencing court.
Defendant did not object to the conditions. The state agrees that the error is apparent on the face of the record and that defendant is correct that a sentencing court lacks authority to impose conditions of incarceration or post-prison supervision. In State v. Kelsey, 124 Or.App. 446, 863 P.2d 475 (1993), we declined to exercise our discretion to review an unpreserved claim of error as to special conditions of probation. However, we reach the errors here. At the sentencing hearing, the court stated that it would recommend post-prison conditions to the Board of Parole and Post-Prison Supervision. However, the court's written judgment orders actual conditions and defendant had no opportunity to object. Accordingly, we remand for entry of a corrected judgment. State v. Bivens, 127 Or.App. 83, 871 P.2d 486 (1994).
Defendant did not object to the court's imposition of a condition of incarceration at the sentencing hearing. However, the Department of Corrections, not the sentencing court, has the authority to impose conditions of incarceration. Even though the error is not preserved, because we remand for entry of a corrected judgment and the error is apparent on the face of the record, we exercise our discretion to address it. The error should be corrected on remand.
Convictions affirmed; remanded for entry of corrected judgment.
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984 F.2d 142
Roger Leroy DEGARMO, Petitioner-Appellee,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellant.
No. 92-2725.
United States Court of Appeals,Fifth Circuit.
Feb. 8, 1993.
William C. Zapalac, Dan Morales, Atty. Gen., Austin, TX, for respondent-appellant.
Greg Gladden, Houston, TX, for petitioner-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
1
The State of Texas entered into a stipulation with petitioner. The stipulation was reduced to writing and filed with the district court. In the stipulation, the state and petitioner agreed that should the federal district court grant relief the state would not appeal. The district court granted relief, and the state has appealed.
2
We have considered the written briefs in this case and heard oral argument. We are persuaded that the stipulation must be enforced by its terms. This appeal is dismissed and the case is remanded to the district court to allow it to enforce the grant of habeas relief.
3
The state will within ten days of this order by letter brief offer any reasons it may have why sanctions ought not be imposed in this appeal. Petitioner will reply ten days thereafter. We reserve decision whether any sanctions ought to be imposed and if so the form they should take.
4
This case aside we pause to report that we are aware of the difficulties for counsel in death cases both for the state and habeas petitioners. Many of these difficulties are visited upon the court as well. The law is complex and there is often little time. In this environment, we are careful to read our rules in ways that will not chill vigorous advocacy. It does not follow, however, that anything goes. We will not tolerate abuse or sharp practice by counsel--for the state or the petitioner. Counsel proceeding in vigorous good faith representation need not fear sanctions. Others can expect it.
5
We offer no opinion regarding the wisdom of the stipulation. The failure to abide its terms, however, only worked to further delay and cannot be abided. The petitioner, his family, and the family of the victim all must be perplexed at the functioning of the legal system in this case. It is a dismal record.
6
Appeal DISMISSED.
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159 Cal.App.2d 335 (1958)
JOSEPH L. FARAH et al., Appellants,
v.
ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD et al., Respondents.
Civ. No. 22901.
California Court of Appeals. Second Dist., Div. One.
Apr. 14, 1958.
Carl B. Sturzenacker and Walter Monarch for Appellants.
Edmund G. Brown, Attorney General, and Edward M. Belasco, Deputy Attorney General, for Respondents.
FOURT, J.
This is an appeal from a judgment denying appellants' petition for a writ of mandate to compel respondents to cancel their order suspending for 15 days appellants' on-sale general liquor license.
The facts are as follows: On April 20, 1956, the plaintiffs, licensees, sold and furnished beer to a girl about 19 years of age and permitted her to consume the beer on their premises. At the time of this sale and consumption the minor was not requested to produce nor exhibit any bona fide documentary evidence of her majority or identity. About two or three weeks before the sale above mentioned, the girl had exhibited to a waitress in the establishment a temporary automobile operator's license, upon which the date of birth had been fraudulently altered to show the age as 22, instead of 19. The Department of Alcoholic Beverage Control, by accusation, *337 charged the licensees with a violation of sections 25658, subds. (a) and (b), and 24200, subd. (b), of the Business and Professions Code for the acts heretofore mentioned. The Department of Alcoholic Beverage Control found, after a hearing, that the charges were true and found that the licensees had failed to establish the defense available to liquor licensees under section 25660, Business and Professions Code, that the alterations were reasonably apparent on an inspection of the driver's license, and also that the minor could not reasonably have been mistaken for a person of the age of majority. The licensees took an appeal to the Alcoholic Beverage Control Appeals Board, which considered the matter and made its decision. The appeals board ordered stricken from the decision the statements as to the alteration of the driver's license being apparent and as to the unlikelihood of the minor's being mistaken for an adult, on the ground that there was no evidence in the record to support such findings. The decision of the Department, however, was affirmed, apparently upon the ground that the licensees "did not demand, nor were they shown, on April 20, 1956, documentary evidence of majority and identity." The minor admitted altering the driver's license and exhibiting it as altered over a period of time to the licensees and their employees.
It seems generally agreed by all that the licensees had been previously imposed upon by the minor without fault on their part.
The licensees petitioned the superior court for a writ of mandate to compel the department and the appeals board to set aside their decision. The writ was denied and this appeal is from that determination.
The question involved here is the interpretation of section 25660 of the Business and Professions Code, as amended in 1955. That section reads as follows:
"In any criminal prosecution or proceeding for the suspension or revocation of any license based upon violation of Section 25658, proof that the defendant licensee, or his agent or employee, demanded and was shown, immediately prior to furnishing any alcoholic beverage to a person under 21 years of age, bona fide documentary evidence of majority and identity of the person issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective *338 Service Act, or an identification card issued to a member of the armed forces, is a defense to the prosecution or proceeding for the suspension or revocation of any license." (Emphasis added.)
The 1955 amendment, among other things, substituted the words "immediately prior," for the word "before," just preceding the phrase "furnishing any alcoholic beverage," which had appeared in the statute before amendment.
Appellants' contentions are that a complete defense was established under the section in question; that the section does not require proof of age and identity on each occasion of service of an alcoholic beverage; that the section violates the due process clauses of the state and federal Constitutions, and that a legislative body may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.
[1] The Department of Alcoholic Beverage Control is a constitutional agency (Cal. Const., art XX, 22), and is charged with the enforcement of the Alcoholic Beverage Control Act, and the decisions of the Department should be affirmed by the courts when supported by substantial evidence. (5501 Hollywood, Inc. v. Department of Alcoholic Beverage Control, 155 Cal.App.2d 748 [318 P.2d 820], and the cases cited therein.)
[2] The business of selling intoxicating liquor is one attended with dangers, and under the police power the state may limit the operation of such business to conditions which will minimize its evils. (Ritz v. Lightston, 10 Cal.App. 685, 689 [103 P. 363]; People v. Baker, 38 Cal.App. 28, 34 [175 P. 88]; Cornell v. Reilly, 127 Cal.App.2d 178, 187 [273 P.2d 572].)
The licensees in this case sold the liquor to the minor, and unless they can come under the protection of the provisions of section 25660 of the Business and Professions Code the license was subject to suspension.
[3] The Legislature, in adopting the provisions of the above cited code section, provided a method whereby a licensee can protect himself in any case of doubt as to the age of a prospective customer: "immediately prior to furnishing" any liquor the licensee can demand bona fide documentary evidence of the majority and identity of the prospective customer. The defense is affirmative and the burden is therefore upon the licensee to show that he is entitled to the benefits *339 of such a defense. (Keane v. Reilly, 130 Cal.App.2d 407 [279 P.2d 152]; Molina v. Munro, 145 Cal.App.2d 601 [302 P.2d 818].)
[4] The cases interpreting section 25660, Business and Professions Code, have generally set forth three tests by which to measure the conduct of the licensee in determining whether there has been a compliance with the provisions of the section.
First, the licensee who makes a diligent inspection of the documentary evidence of majority and identity offered by the customer at or about the time of the sale is entitled to rely upon its apparent genuineness. (Dethlefsen v. State Board of Equalization, 145 Cal.App.2d 561, 567 [303 P.2d 7]; Young v. State Board of Equalization, 90 Cal.App.2d 256 [202 P.2d 587].)
Second, a licensee must exercise the caution which would be shown by a reasonable and prudent person in the same or similar circumstances. (5501 Hollywood, Inc. v. Department of Alcoholic Beverage Control, supra, 155 Cal.App.2d 748, 753.)
Third, a licensee must make the inspection of the documentary evidence and his appraisal of the physical appearance of the customer "immediately prior" to the sale. (People v. Garrigan, 137 Cal.App.2d Supp. 854 [289 P.2d 892].)
In this case the licensees did not demand, nor were they shown any evidence of the majority or identity of the customer at the time of sale, nor during any period for at least two weeks prior thereto.
[5] The Legislature very properly saw fit to place a definite limit and restriction upon the use of the defense, and if a licensee does not see fit to take advantage of the available defense in accordance with the plain mandate of the statute, he assumes the risk of whatever hazards may lie ahead. A licensee has no inherent right to sell liquor and his engaging in the business may legitimately be subject to rigid conditions which will limit the possibilities of sales to children under the age of 21 years. The words "immediately prior" are words of limitation in time, and plainly, the act of questioning the minor and seeing some proof of age two or three weeks before the sale is not "immediately prior" to the sale in question.
There is no merit to the contentions of appellants.
The judgment is affirmed.
White, P. J., and Lillie, J., concurred.
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694 S.W.2d 941 (1985)
STATE of Tennessee, Appellee,
v.
Tommy L. KING, Appellant.
Supreme Court of Tennessee, at Nashville.
August 5, 1985.
*942 George L. Lovell, Gary M. Howell, Columbia, for appellant.
Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, for appellee; W.J. Michael Cody, Atty. Gen. & Reporter, Nashville, of counsel.
OPINION
HARBISON, Justice.
Appellant was convicted of murder in the first degree and sentenced to death by electrocution. After consideration of the briefs and argument of counsel and the entire record, we affirm the judgment.
On May 27, 1982, appellant shot William Mark Lockridge, proprietor of a tavern known as the Third Street Inn in Columbia, *943 Tennessee. Mr. Lockridge, who was forty-two years of age, died a week later at Vanderbilt Hospital. The single shot entered his body at the left side of the neck and followed a downward trajectory, damaging the spinal cord and several vertebrae. As far as the record reveals, Mr. Lockridge never regained consciousness after being shot.
Appellant, Tommy Lee King, was thirty-two years of age at the time of the trial. He had had five previous felony convictions. On several occasions he had been granted probation, but he continued to commit further offenses. He was on probation from a previous conviction at the time he shot Mr. Lockridge.
Appellant and a codefendant, Ronald Davis, lived in Chattanooga, but they had been in Columbia for a few days prior to the homicide. They had been traveling in a car belonging to the sister of Mr. Davis. It needed repairs, and they had taken it to a repair shop near the place of business of Mr. Lockridge. Lacking funds to pay for the repairs, they had attempted to sell to Mr. Lockridge and others some stolen dry goods. There is also testimony that they had attempted to sell a .357 magnum pistol on the day before the homicide.
At the trial, appellant insisted that he did not possess such a weapon, but that Mr. Lockridge did. There was conflicting testimony on the point, several witnesses stating that they had never known Mr. Lockridge to own or possess a pistol. After the homicide, appellant and Davis returned to Chattanooga, and a .357 magnum pistol was found secreted in the apartment where King was staying. Ballistics testimony established clearly that the fatal shot was fired from this weapon.
Witnesses at the scene of the homicide, which occurred between 10 and 11 p.m. on May 27, 1982, testified that King was in possession of the weapon at the time of the shooting and thereafter. He claimed that he took it from Lockridge during a struggle, but there is abundant testimony in the record to refute this contention. Most of the witnesses testified that Lockridge was not armed. Several of them testified that both appellant and Davis were armed when they came into the restaurant and appellant demanded to see the owner.
It was the contention of appellant that the shooting was accidental. He contended that earlier in the day the victim, Mr. Lockridge, had agreed to buy some blue jeans and other merchandise from but did not have correct change to pay for them. He stated that Lockridge told him to come back later, and that this was the purpose for the return of appellant and Davis to the tavern shortly before it was due to close. Appellant testified that Mr. Lockridge refused to pay for the merchandise, and that a struggle ensued in which Lockridge attempted to draw his pistol. Appellant contended that the pistol was fired accidentally during the course of this struggle. He and Davis fled, stealing Mr. Lockridge's automobile, which they took to Chattanooga. It was found the next day outside the apartment in which appellant was staying.
The great weight of the testimony is to the contrary. Numerous witnesses testified that appellant and Davis entered the tavern near closing time and that appellant demanded to see the owner. He fired a shot into the ceiling of the restaurant and required the owner and three other persons present to lie down on the floor, stating that he intended to rob them. He and Davis did proceed to rob some of these persons, as well as to rifle Mr. Lockridge's cash register and take his car keys. After all of the occupants were on the floor, another patron came in, having heard the first shot, and he, too, was ordered to lie down. He managed to escape into a restroom, where he and another witness remained until after the shooting was over. They heard at least one additional shot which, according to the State's testimony, was the shot which proved fatal to Mr. Lockridge.
Appellant and Davis ran from the tavern into the street, where Davis first got into an automobile belonging to one of the witnesses. It was very similar to the vehicle owned by Mr. Lockridge. The witness protested, *944 and Davis then got into Lockridge's vehicle. He was followed by King, who forced the witness, Yolanda Williams, to lie on the street at gunpoint, while appellant and Davis made their escape.
The jury found that appellant had committed murder in the first degree during the perpetration of an armed robbery, and there is overwhelming evidence to support that conclusion. They found this also to be one of the aggravating circumstances at the sentencing hearing.[1] In addition they found that appellant had knowingly created a great risk of death to two or more persons other than the victim during the course of the homicide,[2] and that in addition he had been convicted previously of crimes involving violence or a threat of violence to the person.[3] Two of his prior convictions involved kidnapping and attempted robbery, both of which, by definition, involve personal violence or the threat thereof. Appellant attempted to explain the circumstances of the kidnapping and to deny that it was violent, but he admitted that he had pled guilty to that offense on a previous occasion. The evidence presented a question for determination by the jury as to whether he had previously been convicted of violent crimes, and they were not bound to credit his attempts to explain away the previous offenses to which he had pled guilty. Even if the proof as to this aggravating circumstance were marginal, the record overwhelmingly supports the conclusions of the jury as to the other two aggravating circumstances which they found.
Very little was offered by way of mitigating circumstances other than appellant's insistence that he was morally justified in his actions because Mr. Lockridge had refused to pay him for merchandise and his insistence that the shooting was accidental. Both of these were jury questions, and the jury was not bound to accept appellant's version of these factual issues.[4] Appellant testified at both the guilt and the sentencing phases of the trial, and his credibility was drawn into issue in numerous instances. In addition, at the sentencing phase, a character witness testified that appellant's reputation for truth and veracity was poor.
On appeal, appellant does not question the sufficiency of the evidence to support the jury verdict of guilt or deny that there was material evidence with respect to the three aggravating circumstances found. Seven issues have been presented for review.
In the first of these appellant insists that the trial judge erred in not permitting his counsel to introduce appellant's prior statement. This was offered during the cross-examination of a detective who took the statement. The statement was exculpatory in that appellant contended in it, as he did in his trial testimony, that the shooting was accidental. Appellant has cited very little authority for the introduction of his own self-serving statement given to the police. The State did not offer the statement in evidence or attempt to use it against appellant in any way. In our opinion the trial judge correctly excluded it. See State v. Wiseman, 643 S.W.2d 354, 366 (Tenn. Crim. App. 1982), where the following was stated:
"Next the appellant contends that the trial judge erred by refusing to admit the appellant's statement. The appellant attempted to place before the jury, through a T.B.I. agent, a statement that the appellant gave to the Tennessee Bureau of Investigation. In the statement the appellant admitted his friendship with his co-defendants, but adamantly denied his guilt of embezzlement. The state objected to the admission of his statement on the basis that it was hearsay and self-serving. *945 The trial judge sustained the state's objection.
"In Moon v. State, 146 Tenn. 319, 242 S.W. 39, 54 (1921), the Supreme Court considered this issue and held that the self-serving declarations of a criminal defendant are not admissible. In Hall v. State, 552 S.W.2d 417, 418 (Tenn.Cr.App. 1977) this Court, citing Wharton's Criminal Evidence, 13th Edition, § 303, explained the reasoning for this rule as follows:
`A declaration made by a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution, is not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its testimonial trustworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.'"
Detective Walter Hall testified at the trial and described his general investigation of the homicide. On direct examination he testified that after appellant and Davis were apprehended in Chattanooga, he went to that city, where he advised them of their rights and of the charges against them. He made no attempt to indicate either that they remained silent or that they gave any statement to him. Only on cross-examination of this witness by appellant's counsel was it brought out that the detective had taken a statement from appellant. It was at that point in the trial, during the cross-examination of the detective, that counsel for appellant sought to read appellant's statement into the record.
We find no error on the part of the trial judge in excluding the statement, nor do we find that the State attempted to establish any impermissible inference concerning the silence of appellant as proscribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In his second issue appellant insists that the trial court also erred in excluding from evidence the statement given by his codefendant, Davis, to the investigating officers. Davis did not testify at the trial, but in his statement he did corroborate appellant's version of the facts, at least to some extent and at least with respect to appellant's claim that the shooting occurred during his struggle with Lockridge.
Of course, the State would have been prohibited from introducing any portion of the statement of Davis which might have incriminated appellant, since Davis did not testify. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant insists, however, that on cross-examination of the detective, he was entitled to introduce the statement given by Davis. This proffered testimony was excluded by the trial judge as hearsay, and in our opinion this ruling was correct. The statement did not incriminate Davis and was not offered as a declaration against the penal interest of Davis. The only authority cited by appellant for the admissibility of this statement is Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53 (1970). We have carefully examined this case, and we find nothing therein to support the contention of appellant that such evidence would be admissible over the objection of the State. In that case the statement of one codefendant was apparently offered by the State against the maker of the statement and two codefendants. The Court found that there was no violation of the right of confrontation of any of the defendants under the circumstances of that case. The holding does not stand for the proposition that a hearsay declaration of a codefendant is admissible for the offering defendant when the State timely objects. In the instant case the statement of Davis was offered for the truth of the matter asserted and for no other purpose. Such an exculpatory statement bears no inherent indicia of trustworthiness and obviously the State would be without power to cross-examine the declarant, a codefendant, unless the latter should voluntarily take the stand. We find no merit to this issue.
*946 Counsel for appellant assigns as error the action of the trial court in limiting his cross-examination of one of the State's witnesses, Carolyn Gunn. This witness testified that she had observed Mr. Lockridge in possession of a large pistol on several occasions prior to the incident in question. Her testimony, in this respect, was favorable to appellant. Nevertheless counsel for appellant sought to cross-examine her about her alleged intimate relationship with Mr. Lockridge. Appellant sought to show that Ms. Gunn had for over a year been engaged in an illicit relationship with Mr. Lockridge, a married man. The trial judge found this testimony irrelevant to any issue in the case, and we are of the opinion that his ruling was correct. Counsel for appellant argues that the showing of this relationship would have strengthened the credibility of Ms. Gunn by demonstrating her opportunities for observing Mr. Lockridge with the weapon. Her testimony in this respect, however, was fully developed, in that she said that she and Mr. Lockridge were close friends and that she had observed him on several occasions in the possession of the weapon. In our opinion the exclusion of the proffered testimony could not have prejudiced appellant nor could it have reasonably been calculated to enhance the credibility of the witness.
In the fourth issue presented, appellant insists that a significant change was made in the State's criminal law when the General Assembly changed the word "killing" to "murder" in re-enacting the felony-murder statutes in 1977 Tenn. Pub. Acts, ch. 51. This issue has been examined in a number of cases and found by the Court to be without merit. The statute, now codified as T.C.A. § 39-2-202(a), defines murder in the first degree as premeditated, willful, deliberate and malicious homicide. However it also defines murder in the first degree as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. See State v. Johnson, 661 S.W.2d 854, 860-861 (Tenn. 1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). We do not consider that the change in statutory language occurring in 1977 had the effect of abolishing the felony-murder rule, nor does felony-murder require proof of malice. Were that required, however, it might have been sufficiently shown in this case by statements attributed to appellant that he intended to kill the victim. There was also evidence that he threatened to kill the other persons in the tavern and was restrained from doing so by his codefendant.
In his fifth issue, appellant contends that the Assistant District Attorney erred in his argument to the jury at the sentencing phase that appellant had committed armed robbery. Of course, the jury had just convicted appellant of committing a murder during the course of an armed robbery, and the evidence which they had already heard clearly established that he had committed that offense. No objection was made to the argument, and we find no reversible error in connection therewith.
In the sixth issue, appellant attacks the constitutionality of the Tennessee statutes authorizing the death penalty in general. He also contends that it is improper to use the "underlying felony" which made the homicide felony-murder as one of the aggravating circumstances justifying the death penalty. This and similar arguments have been rejected in numerous cases. See State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); State v. Pritchett, 621 S.W.2d 127 (Tenn. 1981).
In his final issue appellant insists that the members of the jury were not properly sequestered and that the State failed to show a lack of prejudice under the principles outlined in Gonzales v. State, 593 S.W.2d 288 (Tenn. 1980).
The trial judge held an extensive hearing in passing upon the motions for new trial filed by both defendants in this case. All of the members of the trial jury were subpoenaed and were examined by the court and by the District Attorney. *947 Counsel for appellant asked no questions whatever at this hearing. He contends that he was limited in the scope of his questioning, but the only limitation which we have found in the record is refusal of the trial judge to permit counsel to interrogate the jurors about other matters than the sequestration issue. We find no other limitation imposed by the trial judge, and, contrary to the insistence of counsel for appellant, we do not find that the trial judge prevented them from examining the jurors about events occurring at any time during the trial as distinguished from those which occurred on the last day of the trial.
The guilt phase of the trial ended on a Friday night, and the jury members were returned to their motel. The sentencing hearing and conclusion of the trial were expected to occur and in fact did occur on Saturday morning. The members of the jury were permitted to drive their personal automobiles from the motel back to the courthouse and to park nearby. Some of them came alone, and others were accompanied by fellow jurors. Each juror testified positively under extensive questioning by the court and by the Assistant District Attorney General that there was no interference, no outside contact, and no improper suggestion made to any of them. They were questioned by the trial judge as to whether any improper contact or influence had been exerted at any time during the trial, as well as on that Saturday morning, and in each instance the answers were negative. The record does not sustain the insistence of appellant.
We have examined this record and the briefs and argument of counsel in light of the issues presented in the briefs and also with the provisions of T.C.A. § 39-2-205(c) before us. It is part of the statutory duty of this Court to review a death sentence and to determine whether it was imposed in any arbitrary fashion. The Court is also required to determine whether the evidence supports the jury verdict with respect to aggravating circumstances and the absence of mitigating circumstances sufficient to outweigh them. The Court is also required to determine whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases.
Like the trial judge, we are of the opinion that the death penalty was justified in this case, and that its imposition was neither arbitrary nor disproportionate. In numerous other cases the death penalty has been approved where the homicide occurred during the perpetration of an armed robbery. It has also been upheld in other types of felony-murder. See e.g., State v. McKay, 680 S.W.2d 447 (Tenn. 1984); State v. Workman, 667 S.W.2d 44 (Tenn. 1984); State v. Matson, 666 S.W.2d 41 (Tenn. 1984); State v. Harries, 657 S.W.2d 414 (Tenn. 1983); State v. Johnson, 632 S.W.2d 542 (Tenn. 1982); State v. Coleman, 619 S.W.2d 112 (Tenn. 1981); Houston v. State, 593 S.W.2d 267 (Tenn. 1980).
The judgment of conviction and the sentence are affirmed. Unless stayed or otherwise ordered by proper authority, the sentence will be carried out as provided by law on October 25, 1985. Costs are taxed to appellant.
COOPER, C.J., and FONES and DROWOTA, JJ., concur.
BROCK, J., files dissent.
BROCK, Justice, dissenting.
I concur in the opinion of the Court in all respects except the constitutionality of the death penalty. With respect to the constitutionality of the death penalty, I adhere to the views expressed in my dissenting opinion in State v. Dicks, Tenn., 615 S.W.2d 126 (1981).
NOTES
[1] T.C.A. § 39-2-203(i)(7).
[2] T.C.A. § 39-2-203(i)(3).
[3] T.C.A. § 39-2-203(i)(2).
[4] No merchandise such as that described by appellant and Davis was found in the tavern after Mr. Lockridge was shot.
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IN THE SUPREME COURT OF IOWA
No. 17–0367
Filed June 28, 2019
STATE OF IOWA,
Appellee,
vs.
SCOTTIZE DANYELLE BROWN,
Appellant.
Appeal from the Iowa District Court for Black Hawk County,
Nathan A. Callahan, District Associate Judge.
The defendant challenges her conviction for operating a motor
vehicle while intoxicated under Iowa Code section 321J.2 (2017), arguing
she was subjected to an impermissible pretextual stop. AFFIRMED.
Mark C. Smith (until withdrawal), State Appellate Defender, and
Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kelli Huser (until withdrawal),
Kevin Cmelik, and Israel Kodiaga Assistant Attorneys General, Brian
Williams, County Attorney, and Charity Sullivan, Assistant County
Attorney, for appellee.
Rita Bettis of ACLU of Iowa Foundation, Des Moines; Russell E.
Lovell II, Des Moines; David S. Walker, Windsor Heights; and Andrew B.
Duffelmeyer (until withdrawal) of Glazebrook & Hurd, LLP, Des Moines, for
2
Amici Curiae American Civil Liberties Union of Iowa, the NAACP, League
of United Latin American Citizens of Iowa, and 1000 Kids for Iowa.
Alan R. Ostergren, Muscatine, for amicus curiae Iowa County
Attorneys Association.
3
CHRISTENSEN, Justice.
This case requires us to decide whether a motorist who breaks a
traffic law may lawfully be stopped if the officer was motivated by
investigative reasons for the stop. Around 12:25 a.m., a police officer
observed the defendant making an improper turn and decided to follow the
defendant. At a stoplight, the officer noticed the defendant’s vehicle had
an improperly functioning license plate light and ran the vehicle
information for the vehicle’s registered owner—who was not the defendant.
The vehicle information revealed the registered owner’s affiliation to gang
activity. Subsequently, the officer pulled the defendant over, which led to
his discovery of the defendant’s open beer container in the center
cupholder.
The State charged the defendant with operating while intoxicated in
violation of Iowa Code section 321J.2 (2016). The defendant moved to
suppress all evidence obtained after the stop, arguing the officer conducted
it in violation of the Fourth Amendment of the United States Constitution
and article I, section 8 of the Iowa Constitution because the officer’s
reasons for the stop were not the traffic violations themselves. The district
court denied the motion to suppress and later convicted the defendant
following a bench trial on the minutes. Consistent with precedent in Iowa
and the vast bulk of authority elsewhere, we affirm the district court
judgment because the subjective motivations of an individual officer for
making a traffic stop are irrelevant as long as the officer has objectively
reasonable cause to believe the motorist violated a traffic law.
I. Background Facts and Proceedings.
On October 17, 2015, Officer Justin Brandt of the Waterloo Police
Department observed a black Lincoln Navigator at around 12:25 a.m. in
the City of Waterloo. Officer Brandt observed the driver accelerating at a
4
yellow light and passing to the left of a moving vehicle before veering across
the centerline. The traffic light changed from yellow to red as the Lincoln
Navigator passed through the intersection. Officer Brandt followed the
driver to another intersection, where he also observed the driver’s license
plate light was not properly functioning. At the red light, he ran the vehicle
information for the vehicle’s registered owner—who was not the driver—
and discovered the registered owner’s association with local gang activity.
After realizing the registered vehicle owner’s gang affiliation, Officer
Brandt decided to stop the vehicle. He activated his emergency lights, but
the driver continued. The driver eventually stopped the vehicle after
Officer Brandt activated his audible siren. Officer Brandt approached the
vehicle and immediately smelled an odor of alcohol coming from the driver;
he also observed an open can of beer in the center cupholder. The driver
denied ownership of the open container but admitted to drinking prior to
driving. Officer Brandt obtained the driver’s name and date of birth
because the driver did not have a license with her. The driver was
identified as Scottize Brown. Officer Brandt determined Brown was driving
with a suspended license and transported her to the police station, where
she failed several field sobriety tests and refused to submit to a breath test.
Brown was charged with a second offense of operating a motor
vehicle while intoxicated, an aggravated misdemeanor, in violation of Iowa
Code section 321J.2. She filed a motion to suppress on January 15, 2016,
claiming she was unlawfully subjected to a pretextual stop in violation of
both article I, section 8 of the Iowa Constitution and the Fourth
Amendment of the United States Constitution. The district court held a
hearing on the motion on February 3, and it denied Brown’s motion on
February 16, explaining, “Since there were traffic violations that were
5
objectively observed by Officer Brandt, any subjective reasons that may
have gone into his decision to stop the vehicle do not matter.”
Brown subsequently agreed to a trial on the minutes, and the
district court found her guilty on June 21. She was sentenced to
incarceration in Black Hawk County jail, “351 days suspended, 14 days
imposed,” and to probation for one to two years. The district court also
ordered Brown to pay a $1875 fine with surcharge, a $10 DARE surcharge,
court costs, and attorney fees. Brown appealed on March 7, 2017,
requesting that we vacate her conviction and sentence and remand her
case for dismissal because she was subjected to an impermissible
pretextual stop. We retained Brown’s appeal.
II. Standard of Review.
“When a defendant challenges a district court’s denial of a motion to
suppress based upon the deprivation of a state or federal constitutional
right, our standard of review is de novo.” State v. Brown, 890 N.W.2d 315,
321 (Iowa 2017). We examine the entire record and “make an independent
evaluation of the totality of the circumstances.” State v. Meyer, 543
N.W.2d 876, 877 (Iowa 1996), abrogated in part on other grounds by
Knowles v. Iowa, 525 U.S. 113, 115, 118–19, 119 S. Ct. 484, 487, 488
(1998). In doing so, we evaluate each case “in light of its unique
circumstances.” State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting
State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)).
Ineffective-assistance-of-counsel claims are based in the Sixth
Amendment of the United States Constitution and article I, section 10 of
the Iowa Constitution. Strickland v. Washington, 466 U.S. 668, 684–86,
104 S. Ct. 2052, 2063–64 (1984); State v. Schlitter, 881 N.W.2d. 380, 388
(Iowa 2016). We normally preserve ineffective-assistance-of-counsel
claims for postconviction-relief proceedings. State v. Harrison, 914 N.W.2d
6
178, 206 (Iowa 2018). But, “we will address such claims on direct appeal
when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d
20, 22 (Iowa 2005). We review ineffective-assistance-of-counsel claims de
novo. Schlitter, 881 N.W.2d at 388.
III. Analysis.
The United States Supreme Court has established an objective test
to evaluate the reasonableness of a traffic stop under the Fourth
Amendment of the United States Constitution. In prior cases, we have
applied this objective test when evaluating whether law enforcement
violated a defendant’s Fourth Amendment rights by making a pretextual
traffic stop. See State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996); see
also State v. Cline, 617 N.W.2d 277, 280–81 (Iowa 2000) (en banc),
abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2
(Iowa 2001). Brown now asks us to take a different approach under the
Iowa Constitution. For the reasons explained below, we decline to do so.
We first address Brown’s constitutional claim, and then turn to her
ineffective-assistance-of-counsel claim based on an argument not raised
during her motion to suppress in the district court.
A. Subjective Reasons to Stop Motorists.
1. The Fourth Amendment. The Fourth Amendment of the United
States Constitution protects individuals from unreasonable searches and
seizures. Whren v. United States, 517 U.S. 806, 809, 116 S. Ct. 1769,
1772 (1996); see also U.S. Const. amend. IV (“The right of the people to be
secure in their persons . . . against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause . . . .”). Under the Fourth Amendment, the temporary detention of
a motorist during a traffic stop is a “seizure,” which is “subject to the
constitutional imperative that it not be ‘unreasonable’ under the
7
circumstances.” Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772.
Generally, a traffic stop is reasonable when the police have probable cause
or reasonable suspicion to believe that the motorist violated a traffic law.
Navarette v. California, 572 U.S. 393, 401–02, 134 S. Ct. 1683, 1690
(2014); Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772; State v. Tague, 676
N.W.2d 197, 204 (Iowa 2004).
In Whren, the United States Supreme Court unanimously held that
an officer’s “[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” 517 U.S. at 813, 116 S. Ct. at 1774. In
that case, police officers stopped a motorist and his passenger in a “high
drug area” after observing the motorist turning without signaling then
speed “off at an ‘unreasonable speed.’ ” Id. at 808, 116 S. Ct. at 1772.
Upon stopping the motorist, one of the officers observed drugs in the
motorist’s hands. Id. at 808–09, 116 S. Ct. at 1772. The officers arrested
the motorist and his passenger and retrieved various illegal drugs from the
vehicle. Id. at 809, 116 S. Ct. at 1772. Both the motorist and his
passenger were convicted of violating numerous drug laws and sought to
have their convictions reversed, arguing the district court should have
granted their suppression motions since the traffic stop was pretextual.
Id.
The petitioners in Whren asked the Supreme Court to adopt a
different reasonableness test for traffic stops since the traffic code is so
expansive that it provides officers with discretion to make pretextual stops
based on factors such as race. Id. at 810, 116 S. Ct. at 1773. Specifically,
the petitioners claimed the test for traffic stops should be “whether a police
officer, acting reasonably, would have made the stop for the reason given.”
Id. In rejecting petitioners’ test, the Supreme Court noted, “Not only have
we never held, outside the context of inventory search or administrative
8
inspection . . . , that an officer’s motive invalidates objectively justifiable
behavior under the Fourth Amendment; but we have repeatedly held and
asserted the contrary.” Id. at 812, 116 S. Ct. at 1774. The Supreme Court
“agree[d] with petitioners that the Constitution prohibits selective
enforcement of the law based on considerations such as race.” Id. at 813,
116 S. Ct. at 1774. However, it declared “the constitutional basis for
objecting to intentionally discriminatory application of laws is the Equal
Protection Clause, not the Fourth Amendment.” Id.
The Supreme Court acknowledged the expansive nature of the traffic
code and the potential for an “unsettling show of authority” that enforcing
such an expansive code created. Id. at 817, 116 S. Ct. at 1776 (quoting
Delaware v. Prouse, 440 U.S. 648, 657, 99 S. Ct. 1391, 1398 (1979)).
Nevertheless, it was “aware of no principle that would allow [it] to decide
at what point a code of law becomes so expansive and so commonly
violated that infraction itself can no longer be the ordinary measure of the
lawfulness of enforcement.” Id. at 818, 116 S. Ct. at 1777. It concluded,
“[F]or the run-of-the-mine case, which this surely is, we think there is no
realistic alternative to the traditional common-law rule that probable
cause justifies a search and seizure.” Id. at 819, 116 S. Ct. at 1777.
On appeal, Brown concedes that the officer’s subjective motivations
are irrelevant under the Fourth Amendment to the United States
Constitution so long as there is probable cause to support the stop. We
therefore turn to the question whether the Iowa Constitution forbids
stopping a motorist who violated the law if that was not the officer’s real
reason for the stop.
2. Article I, section 8. The question before us is whether, under the
Iowa Constitution, a traffic stop for a traffic violation is “reasonable” even
if the violation did not happen to be the officer’s motivation for the stop.
9
To put it another way, we must decide whether a motorist who violates a
traffic law has a justified expectation that she will be able to continue down
the road without interruption unless that violation is the officer’s
motivation for the stop. As we will explain herein, we do not think article
I, section 8 draws such fine lines. It is reasonable to stop a motorist based
on reasonable suspicion that the motorist violated the law.
i. Scope of article I, section 8. Article I, section 8 of the Iowa
Constitution protects persons against “unreasonable seizures.” Iowa
Const. art. I, § 8 (“The right of the people to be secure in their persons . . .
against unreasonable seizures and searches shall not be violated; and no
warrant shall issue but on probable cause . . . .”). It should be noted that
article I, section 8 and the Fourth Amendment have only minimal textual
differences. Article I, section 8 employs a semicolon between the
reasonableness and warrant clauses while the Fourth Amendment uses a
comma between these two clauses. 1 State v. Gaskins, 866 N.W.2d 1, 6
(Iowa 2015).
Current members of our court have disagreed about the semicolon’s
significance. Compare State v. Short, 851 N.W.2d 474, 483 (Iowa 2014)
(“This semicolon suggests the framers believed that there was a
relationship between the reasonableness clause and the warrant
clause . . . .”), with id. at 522 (Mansfield, J., dissenting) (“I do not think
one can use this inconsequential punctuation difference to justify a
different interpretation of article I, section 8.”). “One expects that, if the
semicolon in [a]rticle I, section 8 fundamentally altered the meaning of that
provision, this argument [over differences in punctuation marks] would
1We also note a textual difference for order of appearance; the Iowa Constitution
reverses the order of “searches and seizures.”
10
have emerged at some point within the first 150 years . . . .” Gaskins, 866
N.W.2d at 52 n.27 (Waterman, J., dissenting).
There is also evidence in the 1857 debates over the Iowa
Constitution that our framers wanted our bill of rights to provide similar
protection to the Federal Bill of Rights when they adopted similar
language. For example, George W. Ells proposed an amendment at the
convention to include a counterpart to the Federal Due Process Clause in
the Iowa Constitution, noting, “[T]he committee who have offered the
amendment to this second section, did so from a desire that the Bill of
Rights in the Constitution of this State, should be as strong, in this respect,
as the Constitution of the United States.” 1 The Debates of the
Constitutional Convention of the State of Iowa 101–02 (W. Blair Lord rep.,
1857), https://www.statelibraryofiowa.org/services/collections/law-
library/iaconst (emphasis added). Ellis noted his desire for his proposed
due process amendment for the Iowa Constitution to be verbatim to the
Federal Due Process Clause. Id. at 101. If the framers of the Iowa
Constitution wanted to create greater search and seizure protections for
Iowans, the nearly identical language of article I, section 8 to the Fourth
Amendment does not reflect this desire.
We generally “interpret the scope and purpose of the Iowa
Constitution’s search and seizure provisions to track with federal
interpretations of the Fourth Amendment” because of their nearly identical
language. State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008).
Nevertheless, we acknowledge our duty to interpret article I, section 8
independently. See Cline, 617 N.W.2d at 292–93. “We jealously guard our
right to construe a provision of our state constitution differently than its
federal counterpart, though the two provisions may contain nearly
identical language and have the same general scope, import, and purpose.”
11
State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016) (quoting State v.
Jackson, 878 N.W.2d 422, 442 (Iowa 2016)).
However, as to article I, section 8, we are not writing on a blank
slate. In State v. Griffin, 691 N.W.2d 734 (Iowa 2005), which was decided
after Cline, we ruled unanimously as follows:
We now hold that our pronouncement in Meyer was not only
a correct application of federal law but also accurately
described the validity of a pretextual arrest under article I,
section 8 of the Iowa Constitution for purposes of sustaining
a search incident to that arrest. If probable cause exists for
an arrest to be made, the motive for making the arrest does
not limit the right to conduct a search incident thereto.
Id. at 737. And in State v. Kreps, 650 N.W.2d 636 (Iowa 2002), also decided
after Cline, we said,
The motivation of the officer stopping the vehicle is not
controlling in determining whether reasonable suspicion
existed. The officer is therefore not bound by his real reasons
for the stop.
Id. at 641 (citation omitted). 2 So, the question today is whether we should
overturn our article I, section 8 precedent.
As already noted, we have similarly held under article I, section 8
that “the motive for making the arrest does not limit the right to conduct
a search incident thereto” under the Iowa Constitution “[i]f probable cause
exists for an arrest to be made.” Griffin, 691 N.W.2d at 737. In Griffin, an
officer stopped the defendant due to an improperly illuminated rear license
plate and an excessively loud muffler. Id. at 736. The officer’s “computer
check indicated a recent prior conviction for failing to have proof of liability
insurance for the vehicle he was driving and prior drug-related arrests.”
Id. The defendant informed the officer that he did not have liability
2In State v. Harrison, 846 N.W.2d 362 (Iowa 2014), we quoted this language from
Kreps with approval. Id. at 366. However, in that case we also said, “The parties did not
raise on appeal the issue of whether a pretextual traffic stop is valid. We therefore do not
reach that issue.” Id. at 364 n.1.
12
insurance, and the officer arrested the defendant for all three traffic
violations he observed. Id. The officer’s search of the vehicle incident to
arrest revealed drugs, and the officer testified at the suppression hearing
that he would not have arrested the defendant if he had not suspected the
vehicle contained drugs based on the defendant’s prior drug convictions.
Id. We rejected the defendant’s claim that the evidence obtained from the
search should have been suppressed because it was obtained incident to
a pretextual arrest in violation of article I, section 8 of the Iowa
Constitution. Id. at 735–36.
Brown asks us to decline to follow our approach Griffin and Kreps
in evaluating the constitutionality of pretextual traffic stops under the
Iowa Constitution.
ii. Brown’s proposed burden-shifting framework. Brown proposes
that we interpret article I, section 8 more broadly than the Fourth
Amendment and adopt a burden-shifting test for evaluating traffic stops.
Under this burden-shifting test, a court would allow the State to provide
an objective basis for the stop, allow the defendant to rebut that with
evidence of subjective motivation, and then allow the State to come forward
and show that the objective basis was the real reason for the stop. We find
this test unworkable for a number of reasons.
First, Brown’s proposed burden-shifting test is difficult to
administer. While this test appears objective on its face, it is ultimately a
subjective standard that focuses on the officer’s state of mind at the time
of the traffic stop. “ ‘[O]bjective evidence’ of . . . general police practice is
simply an aggregation of the subjective intentions of officers in the
regions.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). For
example, in Iowa, police practices can range from county to county. The
usual practice of police officers in Polk County may not represent the usual
13
practice of police officers in Shelby County, as the problems police officers
must regularly confront in the course of their job duties quite possibly
differ between rural and urban counties. Likewise, what may seem like a
common and reasonable practice for a narcotics officer may seem
unreasonable to the highway patrolman. Consequently, the
reasonableness, and thus the validity, of the officer’s traffic stop may turn
on the county in which it is made or the detaining officer’s law enforcement
division. Yet, the search and seizure protections of article I, section 8 and
the Fourth Amendment do not vary, nor “can [they] be made to turn upon
such trivialities.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775.
Brown’s burden-shifting test also fails to consider that there are
often a number of factors influencing an officer’s decision-making process.
We have previously concluded that parking in a frequently burglarized
area can lead to an officer’s decision to stop a motorist. State v.
Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (per curiam). So, too, can
pouring a can of beer out onto the pavement of a tavern parking lot at “a
time notorious for drunken driving.” State v. Rosenstiel, 473 N.W.2d 59,
62 (Iowa 1991), overruled on other grounds by Cline, 617 N.W.2d at 281.
It is unclear under the proposed burden-shifting test when these
situations become pretextual. Our search and seizure jurisprudence
requires more certainty and uniformity than the burden-shifting test
provides.
Second, Brown bases her request for a burden-shifting test on
concerns of racial profiling. Brown does not argue that Officer Brandt
knew she was African-American before initiating the traffic stop. Instead,
the observed traffic violations precipitated Officer Brandt discovering the
vehicle’s registered owner’s gang affiliation. A key element that often
defines gangs or gang behavior is “violent or criminal behavior as a major
14
activity of group members.” William B. Sanders, Gangbangs and Drive-
Bys 10 (1994).
Though we acknowledge that police discretion can lead to racial
profiling, we are not persuaded that Brown’s approach would have any
significant impact on eliminating racial profiling. Racial profiling concerns
existed when we decided Griffin, and many of the racial profiling studies
Brown cites predate Griffin. An officer who engages in racial profiling is
also likely to be willing to lie about it. We are hopeful, though, that the
spread of technology such as body cams, dash cams, and cell phone videos
taken by private citizens will enable our society to better monitor and
reduce racial profiling in the future.
Third, the burden-shifting test is also unnecessary to protect
citizens from unlawful searches and seizures. “[T]he harsh reality [is] that
we lack the ability to control all the variables leading to disparate
enforcement. In few areas is this more observable than in our criminal
justice system.” Jeff D. May et al., Pretext Searches and Seizures: In Search
of Solid Ground, 30 Alaska L. Rev. 151, 184–85 (2013) [hereinafter May et
al.]. The criminal justice system is rife with “so many variables that
influence who becomes subject to prosecution that it is difficult to isolate
any one causal source of the disparate representation we see in our
statistics.” Id. at 185. Because of the numerous factors influencing law
enforcement, especially regarding areas of the law as expansive as the
traffic code, “[t]here is real doubt that we will ever eradicate the use of
pretext motivations even if we were to prohibit them.” Id.
Law enforcement officers “make judgments and mental shortcuts
based on [their] past experiences and training.” Id. It appears “somewhat
easier to figure out the intent of an individual officer than to plumb the
collective consciousness of law enforcement in order to determine whether
15
a ‘reasonable officer’ would have been moved to act upon the traffic
violation.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775. Brown’s approach
of effectively prohibiting pretextual stops outright only risks “push[ing] its
use further into the shadows.” May et al., 30 Alaska L. Rev. at 185.
This case involves a relatively common scenario where a late-night
traffic stop based on an observed violation of the traffic code leads to a
determination that the driver was intoxicated and to an OWI conviction.
Although it is our job to interpret the Iowa Constitution and not to set
policy for the State of Iowa, we think most Iowans favor this policy outcome
and would not want reduced enforcement of the drunk driving laws.
Iowa law already provides motorists with protections meant to
curtail law enforcement’s abuse of authority during traffic stops. Under
article I, section 8 of the Iowa Constitution, the officer must allow a
motorist to leave “when the reason for a traffic stop is resolved and there
is no other basis for reasonable suspicion.” State v. Coleman, 890 N.W.2d
284, 301 (Iowa 2017). Iowa also restricts the scope of the search-incident-
to-arrest exception to the warrant requirement under the Iowa
Constitution to limit law enforcement’s ability to gather evidence incident
to arrest. See Gaskins, 866 N.W.2d at 16–17. Thus, officers may not rely
on the search-incident-to-arrest exception to search a motorist’s vehicle
on the grounds that the officers believe the vehicle contains evidence of
the arresting offense. Id. at 13–14. We even analyze a motorist’s consent
to the search of a vehicle during a traffic stop more rigorously in Iowa. See
State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011) (applying a narrow
version of the federal totality-of-the-circumstances test in determining
consent was involuntary). These additional protections for motorists in
Iowa help limit the potential for an abuse of authority that Brown is
concerned with reducing.
16
All of this is not to say that the officer’s subjective motivations are
never relevant in determining the validity of a traffic stop. “The more
evidence that a detention was motivated by police suspicions unrelated to
the traffic offense, the less credible the officer’s assertion that the traffic
offense occurred.” State v. Lopez, 873 P.2d 1127, 1138–39 (Utah 1994).
The district court considers the officer’s credibility in determining at the
suppression hearing whether the facts justified the officer’s traffic stop at
its inception. If the district court doubts the officer’s credibility and finds
the motorist did not commit a traffic violation, then the stop is
unconstitutional. In the event of an unconstitutional traffic stop based on
a claim of selective enforcement, the Equal Protection Clause—not the
State or Federal Search and Seizure Clause—is the proper claim to bring
when seeking recourse. Whren, 517 U.S. at 813, 116 S. Ct. at 1774. To
be certain, the Equal Protection Clause prohibits selective enforcement of
the law based on racially discriminatory grounds. See, e.g., id. (“[T]he
Constitution prohibits selective enforcement of the law based on
considerations such as race. But the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection
Clause, not the Fourth Amendment.”); United States v. Coney, 456 F.3d
850, 856 n.4 (8th Cir. 2006); United States v. Frazier, 408 F.3d 1102, 1108
(8th Cir. 2005); Johnson v. Crooks, 326 F.3d 995, 999–1000 (8th Cir.
2003); Chavez v. Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001);
Gardenhire v. Schubert, 205 F.3d 303, 319–20 (6th Cir. 2000); United
States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996); United States v. Benitez,
613 F. Supp. 2d 1099, 1101–02 (S.D. Iowa 2009); In re Prop. Seized from
Kaster, 454 N.W.2d 876, 880 (Iowa 1990) (en banc); State v. Durrell, 300
N.W.2d 134, 135–36 (Iowa 1981); State v. Walker, 236 N.W.2d 292, 295
(Iowa 1975).
17
Brown’s request for a departure from Griffin and Kreps and adoption
of a burden-shifting framework for evaluating traffic stops would create
instability in the law, hinder law enforcement efforts, weaken the strength
of our adversarial system, and undermine public confidence in the legal
system. This kind of burden-shifting may work well in employment
discrimination law, where there will usually be a fairly detailed record to
evaluate, but it would be a challenge to apply in the thousands of
suppression hearings where the legality of split-second actions are at
issue.
iii. Other states’ approaches. Not only does our article I, section 8
precedent hold that traffic stops for traffic violations are reasonable
regardless of the officer’s subjective motivation, but the vast majority of
other jurisdictions agree with us. In addition to Iowa, forty states and the
District of Columbia follow the same objective standard we outlined in
Griffin and Kreps. 3 Brown points to only three states that have adopted a
3See, e.g., State v. Ossana, 18 P.3d 1258, 1260 (Ariz. Ct. App. 2001) (relying on
Whren for a Fourth Amendment claim and holding “[t]he officers had the right to stop
appellant’s car if they reasonably believed he had committed a traffic violation”); State v.
Mancia-Sandoval, 361 S.W.3d 835, 839–40 (Ark. 2010) (“As previously noted, a pretextual
stop is not impermissible under either the federal or Arkansas Constitution and, thus,
does not invalidate an otherwise lawful stop of the vehicle.”); People v. Miranda, 21 Cal.
Rptr. 2d 785, 789 (Ct. App. 1993) (determining under the Fourth Amendment, “the
subjective motivation of an arresting officer is irrelevant in determining the propriety of a
traffic stop”); People v. Ingram, 984 P.2d 597, 603 (Colo. 1999) (en banc) (concluding
under the Fourth Amendment, “[a] reviewing court must base its analysis of whether
reasonable suspicion exists on an objective analysis and not upon the subjective intent
of the arresting officer”); Karamychev v. District of Columbia, 772 A.2d 806, 813 n.9 (D.C.
Cir. 2001) (applying Whren, “if [the officer] had an adequate objective basis to stop (and
then arrest) Karamychev, his subjective motivation was legally irrelevant”); Holland v.
State, 696 So. 2d 757, 760 (Fla. 1997) (applying the objective standard established in
Whren in state constitutional analysis and noting “the Whren Court made it clear that
subjective viewpoints no longer factor into the analysis”); State v. Bolosan, 890 P.2d 673,
681 (Haw. 1995) (“This court has also disapproved of analyses of officers’ subjective bases
for conducting investigatory stops in favor of an objective standard, and we see no reason
to depart from that position.” (Citation omitted.)); State v. Myers, 798 P.2d 453, 455 (Idaho
Ct. App. 1990) (concluding for a Fourth Amendment claim, that “any underlying motive
of [the officer] in stopping Myers’ vehicle as a pretext to search for drugs was irrelevant
because the stop was justified by an objectively reasonable basis”); People v. Rucker, 689
18
N.E.2d 1203, 1208 (Ill. App. Ct. 1998) (“Regardless of [the officer’s] subjective intention
for stopping the vehicle, the key question is whether he had a reasonable, articulable
suspicion of criminal activity such that he could lawfully stop the vehicle.”); Mitchell v.
State, 745 N.E.2d 775, 787 (Ind. 2001) (holding under the Indiana Constitution, there is
“nothing unreasonable in permitting an officer, who may have knowledge or suspicion of
unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic
violation”); State v. Jones, 333 P.3d 886, 893 (Kan. 2014) (adopting the Whren objective
standard); Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013) (“It has long been
considered reasonable for an officer to conduct a traffic stop if he or she has probable
cause to believe that a traffic violation has occurred.”); State v. Waters, 780 So. 2d 1053,
1056 (La. 2001) (per curiam) (applying Whren and stating, that “[t]he standard [for
assessing the reasonableness of a traffic stop] is a purely objective one that does not take
into account the subjective beliefs or expectations of the detaining officer”); State v. Sasso,
143 A.3d 124, 128 (Me. 2016) (“The Supreme Court holding announced in Whren is
consistent with Maine’s standard for evaluating whether a traffic stop passes
constitutional muster.”); Wilkes v. State, 774 A.2d 420, 430–31 (Md. 2001) (referring to
Whren in determining the constitutionality of a traffic stop under the Fourth Amendment);
Commonwealth v. Buckley, 90 N.E.3d 767, 778 (Mass. 2018) (“Outside of the racial
profiling context—as this case is—the reasonableness of a traffic stop does not depend
upon the particular motivations underlying the stop. . . . [L]egal justification alone, such
as an observed traffic violation, is sufficient.”); People v. Kazmierczak, 605 N.W.2d 667,
672 n.8 (Mich. 2000) (relying on Whren in determining “[t]he traffic stop here was
permissible because [the officer] observed a traffic violation”); State v. George, 557 N.W.2d
575, 578 (Minn. 1997) (en banc) (“Ordinarily, if an officer observes a violation of a traffic
law, however insignificant, the officer has an objective basis for stopping the vehicle.”);
Floyd v. City of Crystal Springs, 749 So. 2d 110, 114–15 (Miss. 1999) (en banc) (referring
to Whren after comparing the “almost identical language” of the Fourth Amendment to
Mississippi’s search and seizure provision); State v. Brink, 218 S.W.3d 440, 445 (Mo. Ct.
App. 2006) (“Whether or not a traffic stop is reasonable and therefore lawful does not
depend on the investigating officer’s motive.”); State v. Farabee, 22 P.3d 175, 180–81
(Mont. 2000) (declining to adopt the “would have” standard rejected in Whren to evaluate
pretextual stops under the Montana Constitution, concluding “[that the court has] never
held, however, that an otherwise objectively justifiable traffic stop is nonetheless unlawful
because a law enforcement officer used the stop to investigate a hunch about other
criminal activity”); State v. Bartholomew, 602 N.W.2d 510, 514 (Neb. 1999) (“If an officer
has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior
motivation on the officer’s part is irrelevant.”); Gama v. State, 920 P.2d 1010, 1013 (Nev.
1996) (per curiam) (holding an officer’s subjective motivation is irrelevant in analyzing the
validity of a traffic stop “because we now conclude that the Nevada Constitution’s search
and seizure clause provides no greater protection than that afforded under its federal
analogue, at least in the area of pretextual traffic stops”); State v. McBreairty, 697 A.2d
495, 497 (N.H. 1997) (“The ultimate test of the propriety of an investigatory stop under
part I, article 19 is whether, viewing the circumstances objectively, an officer had a
specific and articulable basis for concluding that an individual had committed, was
committing, or was about to commit a crime.”); State v. Bacome, 154 A.3d 1253, 1258
(N.J. 2017) (“The objective reasonableness of police officers’ actions—not their subjective
intentions—is the central focus of federal and New Jersey search-and-seizure
jurisprudence.”); People v. Robinson, 767 N.E.2d 638, 642 (N.Y. 2001) (“In making that
determination of probable cause [for a traffic stop], neither the primary motivation of the
officer nor a determination of what a reasonable traffic officer would have done under the
19
circumstances is relevant.”); State v. McClendon, 517 S.E.2d 128, 635 (N.C. 1999)
(rejecting defendant’s request to depart from the objective standard established in Whren
under the North Carolina Constitution because “in general, police action related to
probable cause should be judged in objective terms, not subjective terms”); State v. Oliver,
724 N.W.2d 114, 116 (N.D. 2006) (relying on Whren to determine “that [a] police officer’s
subjective intentions in making a stop are not important as long as a traffic violation has
occurred”); City of Dayton v. Erickson, 665 N.E.2d 1091, 1097–98 (Ohio 1996) (“[W]here
an officer has an articulable reasonable suspicion or probable cause to stop a motorist
for . . . a minor traffic violation, the stop is constitutionally valid regardless of the officer’s
underlying subjective intent or motivation for stopping the vehicle in question.”); Dufries
v. State, 133 P.3d 887, 889 (Okla. Crim. App. 2006) (“[W]here an officer has probable
cause to believe a traffic violation has occurred, his subjective motivation for stopping the
vehicle is irrelevant to the legality of the stop.”); State v. Carter, 600 P.2d 873, 875 (Or.
1979) (en banc) (“The officer’s motives for an otherwise justifiable traffic stop are, as we
held in [State v.] Tucker, [595 P.2d 1364 (Or. 1979)] not relevant to the question of its
validity.”); Commonwealth v. Chase, 960 A.2d 108, 120–21 (Pa. 2008) (concluding that a
state statute allowing police officers to initiate traffic stops based on reasonable suspicion
of vehicle code violations did not offend the state constitution’s search and seizure
provision); State v. Bjerke, 697 A.2d 1069, 1073 (R.I. 1997) (declining to depart from
Whren under the Rhode Island Constitution because it would be “unprincipled and
unwarranted”); State v. Vinson, 734 S.E.2d 182, 184 (S.C. Ct. App. 2012) (referring to
Whren and indicating an officer’s subjective motivations play no role in search and seizure
analysis); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) (“[W]e conclude that
probable cause justifies a traffic stop under Article I, Section 7 of the Tennessee
Constitution without regard to the subjective motivations of police officers.”); Crittenden
v. State, 899 S.W.2d 668, 673 (Tex. Crim. App. 1995) (en banc) (“Having adopted the
objective approach under the Fourth Amendment, not because of binding precedent, but
because it ‘makes more sense’ than the alternatives, we can hardly justify concluding
otherwise for purposes of Article I, § 9.”); State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994)
(holding an officer’s subjective motivation for making a traffic stop is irrelevant so long as
the traffic stop is based upon probable cause or reasonable suspicion); State v. Tetreault,
181 A.3d 505, 511 (Vt. 2017) (applying Whren and stating that “[a] traffic stop constitutes
a seizure under either [United States or Vermont search and seizure provision] and must
be supported by reasonable suspicion that a motor vehicle violation or other crime is
taking place”); Harris v. Commonwealth, 668 S.E.2d 141, 146 (Va. 2008) (indicating for a
claim pursuant to the Fourth Amendment, that “the Court’s review of whether there was
reasonable suspicion involves application of an objective rather than a subjective
standard”); Muscatell v. Cline, 474 S.E.2d 518, 527 (W. Va. 1996) (“[I]f the trooper did
indeed observe such a misdemeanor violation of the ‘rules of the road’, his stop would
clearly be justified in any event.”); State v. Rutzinski, 623 N.W.2d 516, 520–21 (Wis. 2001)
(relying on the objective standard established in Whren under the Wisconsin
Constitution).
20
different standard, 4 and only two of these states have adopted her
proposed burden-shifting test. 5 Yet, these states have either subsequently
disavowed their new standard or reached that new standard based on a
state constitutional provision different from the Iowa Constitution.
For example, Brown’s reliance on the Superior Court of Delaware’s
holding in State v. Heath, 929 A.2d 390 (Del. Super. Ct. 2006), overlooks
the fact that subsequent Delaware decisions have declined to follow Heath
because “[t]here are too many occasions where . . . there was a lawful basis
to stop a motor vehicle for a traffic violation which led later to arrests for
other kinds of offenses.” State v. Adams, 13 A.3d 1162, 1166–67 (Del.
Super. Ct. 2008). The Delaware Supreme Court has recognized that
“Heath has not been followed in any other Superior Court decisions.”
Turner v. State, 25 A.3d 774, 777 (Del. 2011) (en banc).
Further, Brown’s reliance on the Court of Appeals of New Mexico’s
holding in State v. Ochoa, 206 P.3d 143 (N.M. Ct. App. 2008), ignores the
heightened expectation of privacy New Mexico courts have provided to
motorists in an automobile that Iowa does not afford. The court of appeals
in Ochoa specifically noted that this heightened privacy expectation “ ‘is a
distinct characteristic of New Mexico constitutional law’ and therefore
supports our departure from Whren.” Id. at 151 (quoting State v.
Cardenas-Alvarez, 25 P.3d 225, 231 (N.M. 2001)). In contrast, we have
declined to provide motorists with this same expectation of privacy in their
automobiles and acknowledged “the reduced expectation of privacy [in
automobiles] resulting from the ‘configuration, use and regulation of
4SeeState v. Heath, 929 A.2d 390, 405–06 (Del. Super. Ct. 2006); State v. Ochoa,
206 P.3d 143, 146 (N.M. Ct. App. 2008); State v. Ladson, 979 P.2d 833, 836 (Wash. 1999)
(en banc).
5Heath, 929 A.2d at 402–03; Ochoa, 206 P.3d at 155–57.
21
automobiles.’ ” State v. Storm, 898 N.W.2d 140, 146 (Iowa 2017) (quoting
Arkansas v. Sanders, 442 U.S. 753, 761, 99 S. Ct. 2586, 2591 (1979),
abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 575,
111 S. Ct. 1982, 1989 (1991)).
Finally, Brown’s representation of the Washington Supreme Court’s
holding in State v. Ladson, 979 P.2d 833 (Wash. 1999) (en banc), as
another persuasive example of departure from Whren under a state
constitution, disregards the substantially different search and seizure
provision of the Washington Constitution. Specifically, article I, section 7
of the Washington Constitution provides, “No person shall be disturbed in
his private affairs, or his home invaded, without authority of law.” Wash.
Const. art. I, § 7. As the court noted in Ladson, this provision “is explicitly
broader than that of the Fourth Amendment” and operates under a
different mechanism regarding the citizens’ expectations of privacy.
Ladson, 979 P.2d at 837. Given the differences between the Washington
Constitution’s search and seizure provision and that of the Iowa
Constitution, Ladson carries little persuasive value in how we should
decide this case.
In any event, Washington’s approach “has not resulted in . . .
significantly greater protections” from racial profiling. Margaret M.
Lawton, The Road to Whren and Beyond: Does the “Would Have” Test
Work?, 57 DePaul L. Rev. 917, 920 (2008). Rather, state courts in
Washington continue to do “what courts have always done under the
[Whren] test: determining the credibility of police officers and relying upon
the totality of the circumstances in deciding whether a traffic stop was
constitutionally permissible.” Id. at 919. In doing so, they rarely find
pretextual motivations for the officer’s stop “unless the officer either
testifies to her use of pretext or the court finds that the officer is lying
22
about the reasons for the stop, both of which are relatively uncommon.”
Id. at 957.
In fact, the Washington Supreme Court more recently has retreated
from Ladson and said that it will uphold a stop for a traffic violation “even
if the legitimate reason for the stop is secondary and the officer is
motivated primarily by a hunch or some other reason that is insufficient
to justify a stop.” State v. Arreola, 290 P.3d 983, 991 (Wash. 2012) (en
banc); see also State v. Alvarez, 430 P.3d 673, 677 (Wash. 2018)
(Lawrence-Berrey, C.J., dissenting) (“It is clear that law enforcement can
conduct an investigatory stop for traffic infractions.”).
We conclude that the objective test articulated in Whren applies to
constitutional challenges to traffic stops under article I, section 8 of the
Iowa Constitution. Interpreting article I, section 8 coextensive with the
Fourth Amendment in this case “ensure[s] that the validity of such stops
is not subject to the vagaries of police departments’ policies and
procedures concerning the kinds of traffic offenses of which they ordinarily
do or do not take note.” Ferguson, 8 F.3d at 392. At the same time, it
does not insulate people engaged in more egregious criminal activity “from
criminal liability for those activities simply because a judge determines
that the police officer who executed the traffic stop, had he been the
mythical reasonable officer, would not have stopped them” for the traffic
violation they committed. Id. Moreover, the objective standard set forth
in Griffin and Kreps provides law enforcement officers with a degree of
certainty that they are acting appropriately when they choose to enforce
the traffic violations they witness. We should not penalize law enforcement
for enforcing the law.
Our holding today recognizes this need for consistency by adhering
to our prior holdings. See Brewer-Strong v. HNI Corp., 913 N.W.2d 235,
23
249 (Iowa 2018) (“From the very beginnings of this court, we have guarded
the venerable doctrine of stare decisis and required the highest possible
showing that a precedent should be overruled before taking such a step.”
(quoting McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005))); see also
Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015)
(“Stare decisis alone dictates continued adherence to our precedent absent
a compelling reason to change the law.”). Stare decisis “is an important
restraint on judicial authority and provides needed stability in and respect
for the law.” Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J.,
dissenting), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880
N.W.2d 699, 708 & n.3 (Iowa 2016). Though it is “our role as a court of
last resort . . . to occasionally reexamine our prior decisions, we must
undertake this weighty task only for the most cogent reasons and with the
greatest caution.” Id.
We decided Griffin under the Iowa Constitution less than fifteen
years ago, in which we made clear that an officer’s ulterior “motive for
making the arrest does not limit the right to conduct a search incident
thereto” under the Iowa Constitution “[i]f probable cause exists for an
arrest to be made.” 691 N.W.2d at 737. Despite recognizing that we were
not bound by Fourth Amendment precedent, we nevertheless “found no
basis to distinguish the protections afforded by the Iowa Constitution from
those afforded by the [F]ederal [C]onstitution under the facts of [the] case.”
Id. Brown provides no new arguments that show our holding in Griffin, or
our approval of Whren in Predka, was clearly erroneous. See Brewer-
Strong, 913 N.W.2d at 249 (“This highest possible showing [for overruling
precedent] requires a demonstration that the precedent is clearly
erroneous.”).
24
B. Brown’s Ineffective-Assistance-of-Counsel Claim. Brown
acknowledges her trial counsel did not specifically address her claim on
appeal that Officer Brandt lacked probable cause for the stop because she
did not violate any traffic laws. However, she asks the court to analyze
this issue under an ineffective-assistance-of-counsel claim. The record
before us is sufficient to address Brown’s ineffective-assistance claim, and
we proceed to consider her claim.
To succeed on her ineffective-assistance-of-counsel claim, Brown
must prove (1) counsel failed to perform an essential duty and (2) prejudice
resulted. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). To establish
the first prong, Brown must show her counsel “made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
We approach the first prong with the presumption counsel performed her
duties competently; “we measure counsel’s performance against the
standard of a reasonably competent practitioner.” State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008). Although not required to predict changes
in the law, “counsel must ‘exercise reasonable diligence in deciding
whether an issue is “worth raising.” ’ ” State v. Dudley, 766 N.W.2d 606,
620 (Iowa 2009) (quoting State v. Westeen, 591 N.W.2d 203, 210 (Iowa
1999)). Counsel is not burdened with the duty to raise an issue that has
no merit. Id.; see also State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008).
The second prong—prejudice—results when “there is a reasonable
probability that, but for the counsel’s unprofessional errors, the result of
the proceeding would have been different.” Wills, 696 N.W.2d at 22
(quoting Hopkins, 576 N.W.2d at 378).
Because we did not find a basis to diverge from the protection
afforded by the Iowa Constitution from that afforded by the United States
25
Constitution under the facts of this case, our analysis will apply equally to
both state and federal grounds. See Iowa Const. art. I, § 10; State v.
Nitcher, 720 N.W.2d 547, 553 (Iowa 2006).
If a traffic violation occurred, and the peace officer witnessed it, the
State has established probable cause. 6 State v. Tyler, 830 N.W.2d 288,
292 (Iowa 2013); see also United States v. Mendoza, 677 F.3d 822, 827
(8th Cir. 2012); Tague, 676 N.W.2d at 201 (“When a peace officer observes
a violation of our traffic laws, however minor, the officer has probable
cause to stop a motorist.”). However, the State must bear the burden of
proof by a preponderance of the evidence that the officer had probable
cause to stop the vehicle. Tyler, 830 N.W.2d at 293. If the State does not
meet this burden, all evidence obtained at the stop must be suppressed.
State v. Louwrens, 792 N.W.2d 649, 651–52 (Iowa 2010). “The existence
of probable cause for a traffic stop is evaluated ‘from the standpoint of an
objectively reasonable police officer.’ ” Tyler, 830 N.W.2d at 293–94
(quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,
1661–62 (1996)).
Brown claims her trial counsel was ineffective for failing to challenge
the establishment of probable cause for the stop. She concedes her trial
counsel did properly challenge the legality of a pretextual stop, but
ultimately failed to address the required probable cause. The State
responds to the ineffective-assistance claim by indicating a peace officer
witnessed the multiple traffic violations Brown committed. Specifically,
that Brown acted in violation of Iowa Code section 321.257, thereby
providing probable cause for the stop.
6A peace officer may also stop a vehicle on less than probable cause for the
investigation of unusual behavior that reasonably causes the peace officer to believe
criminal activity is afoot. Tague, 676 N.W.2d at 204; see also Terry v. Ohio, 392 U.S. 1,
30, 88 S. Ct. 1868, 1884 (1968).
26
At the suppression hearing, Officer Brandt testified to witnessing
Brown in violation of multiple traffic laws prior to initiating the stop.
Foremost, Officer Brandt observed Brown’s vehicle accelerate through an
intersection after the traffic-control signal changed from yellow to red.
This is in clear violation of Iowa’s regulation of vehicular traffic. See Iowa
Code § 321.257. A yellow light “means vehicular traffic is warned that the
related green movement is being terminated and vehicular traffic shall no
longer proceed into the intersection and shall stop.” Id. § 321.257(2)(b). A
red light “means vehicular traffic shall stop.” Id. § 321.257(2)(a). This
traffic violation alone, however minor, is sufficient probable cause to stop
a motorist. Tague, 676 N.W.2d at 201. It is undisputed Officer Brandt
witnessed this traffic violation while queued at the same intersection
Brown accelerated through. The State carried its burden. See Tyler, 830
N.W.2d at 293; see also Mendoza, 677 F.3d at 827. Officer Brandt’s stop
of Brown’s vehicle was based on probable cause—violation of Iowa Code
section 321.257. For that reason, Brown’s trial counsel was not ineffective
for failing to challenge probable cause. See Nitcher, 720 N.W.2d at 555
(noting trial counsel was not ineffective for failing to raise an issue with no
merit). Accordingly, Brown has failed to establish the first prong of her
ineffective-assistance-of-counsel claim, and her claim must fail. See
Hopkins, 576 N.W.2d at 380 (acknowledging failure to prove either
ineffective-assistance prong is fatal to the claim).
IV. Conclusion.
We affirm the district court decision for the aforementioned reasons.
AFFIRMED.
Waterman and Mansfield and McDonald, JJ., join this opinion.
McDonald, J., files a separate concurring opinion. Cady, C.J., files a
27
dissenting opinion in which Wiggins, J., joins. Appel, J., files a separate
dissenting opinion in which Wiggins, J., joins.
28
#17–0367, State v. Brown
McDONALD, Justice (concurring specially).
Scottize Brown failed to establish a violation of her rights arising
under the Federal or Iowa Constitutions, and the district court did not err
in denying Brown’s motion to suppress. I thus concur in Justice
Christensen’s opinion affirming Brown’s conviction and sentence. I write
separately to address Brown’s argument the Federal Constitution sets the
floor for claims arising under the Iowa Constitution.
I.
“Beginning in the 1960s . . . , a growing number of states began to
rediscover the independent nature of their state constitutional provisions.
[This movement is s]ometimes called the ‘new judicial federalism’ . . . .”
State v. Baldon, 829 N.W.2d 785, 814 (Iowa 2013) (Appel, J., specially
concurring). In 1977, Justice William Brennan galvanized this movement
with “his call to arms for state courts.” Id. at 790 (majority opinion); see
William J. Brennan, Jr., State Constitutions and the Protection of Individual
Rights, 90 Harv. L. Rev. 489, 503 (1977). Several decades after Justice
Brennan’s call to arms, this court began to systematically address legal
questions arising under the Iowa Constitution.
The fundamental premise of this court’s most recent jurisprudence
in the area of state constitutional law has been that “although this court
cannot interpret the Iowa Constitution to provide less protection than that
provided by the United States Constitution, the court is free to interpret
our constitution as providing greater protection for our citizens’
constitutional rights.” State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000)
(en banc), abrogated on other grounds by State v. Turner, 630 N.W.2d 601,
606 n.2 (Iowa 2001). Pursuant to this premise, this court has treated the
29
Iowa Constitution as a one-way ratchet to provide only greater rights and
remedies than a parallel provision of the United States Constitution. See,
e.g., Behm v. City of Cedar Rapids, 922 N.W.2d 524, 566 (Iowa 2019) (“As
a result, we apply the substantive federal standards, reserving the right to
apply these standards in a more stringent fashion than under federal
caselaw.”); Schmidt v. State, 909 N.W.2d 778, 793 (Iowa 2018) (“The Iowa
Constitution affords individuals greater rights than does the United States
Constitution.”); State v. Pettijohn, 899 N.W.2d 1, 26 (Iowa 2017) (“In
assessing that caselaw, we remain mindful that decisions of the Supreme
Court addressing the scope of a right guaranteed by the United States
Constitution set a floor below which the scope of a right guaranteed by the
Iowa Constitution may not fall, but not a ceiling above which it may not
rise.”); State v. Sweet, 879 N.W.2d 811, 832 (Iowa 2016) (“In any event, the
rulings of the United States Supreme Court create a floor, but not a ceiling,
when we are called upon to interpret parallel provisions of the Iowa
Constitution.”); Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016) (“We
are free to interpret our constitution more stringently than its federal
counterpart, providing greater protection for our citizens’ constitutional
rights.”); Baldon, 829 N.W.2d at 791 & n.1 (“[T]he Supreme Court’s
jurisprudence regarding the freedom from unreasonable searches and
seizures under the Fourth Amendment—or any other fundamental, civil,
or human right for that matter—makes for an admirable floor, but it is
certainly not a ceiling. . . . The incorporation doctrine commands that we
no longer use independent state grounds to sink below the federal floor.”).
The fundamental premise of our recent jurisprudence is not sound.
This court is free to interpret our constitution to provide less or more
protection than the Federal Constitution. See State v. Hampton, No.
18-0061, 2019 WL 476471, at *1–3 (Iowa Ct. App. Feb. 6, 2019) (explaining
30
Iowa courts can interpret the state constitution to provide less protection
than the Federal Constitution); State v. Halverson, No. 16-1614, 2017 WL
5178997, at *3 (Iowa Ct. App. Nov. 8, 2017) (explaining the relevant
question is what the state constitutional text means and how it applies to
the facts and circumstances of the case at hand and not whether Iowa
courts should interpret the Iowa Constitution “more strictly” or “more
broadly” than the Federal Constitution); State v. Bohl, No. 15–1546, 2016
WL 4543957, at *1–2 (Iowa Ct. App. Aug. 31, 2016) (“Depending upon the
particular issue, our precedents interpreting article I, section 8 may
provide greater or lesser protection than cases interpreting the Fourth
Amendment.”); State v. Barth, No. 14–1929, 2016 WL 740302, at *3 (Iowa
Ct. App. Feb. 24, 2016) (“Barth contends the Iowa Constitution provides
greater protection than the Federal Constitution without specifying why or
how. Regardless, Barth misstates the issue. Depending upon the
particular issue, our precedents interpreting article I, section 8 may
provide greater or lesser protection than cases interpreting the Fourth
Amendment.”).
The conclusion that this court can interpret the Iowa Constitution
to provide less or more protection than a parallel provision of the Federal
Constitution is inherent in the federal system. The Bill of Rights, in and
of itself, applies only to the federal government. See Timbs v. Indiana, ___
U.S. ___, ___, 139 S. Ct. 682, 687 (2019) (“When ratified in 1791, the Bill
of Rights applied only to the Federal Government.”); Danforth v. Minnesota,
552 U.S. 264, 269, 128 S. Ct. 1029, 1034 (2008); Barron v. Mayor & City
Council of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833). The Supreme Court
is the final arbiter of the meaning of the Federal Constitution. In contrast,
the Iowa Constitution applies to the state government. This court is the
final arbiter of the meaning of the Iowa Constitution. See Minnesota v.
31
Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679 (1940) (“It is
fundamental that state courts be left free and unfettered by us in
interpreting their state constitutions.”). In determining the meaning of
state constitutional law, this court has a duty to independently determine
the meaning of the Iowa Constitution. See State v. Gaskins, 866 N.W.2d
1, 7 (Iowa 2015). This is true whether we interpret the Iowa Constitution
to provide less or more protection than the Federal Constitution.
Brown’s contention that the incorporation doctrine dictates the
minimum required content of state constitutional law misapprehends the
incorporation doctrine. Incorporation did not change the substantive
content of state constitutional law; it changed the substantive content of
federal constitutional law. Specifically, the Supreme Court held the Due
Process Clause of the Fourteenth Amendment incorporated most of the
Bill of Rights. See Timbs, ___ U.S. at ___, 139 S. Ct. at 687 (“With only ‘a
handful’ of exceptions, this Court has held that the Fourteenth
Amendment’s Due Process Clause incorporates the protections contained
in the Bill of Rights, rendering them applicable to the States.” (quoting
McDonald v. City of Chicago, 561 U.S. 742, 765, 130 S. Ct. 3020, 3035
(2010))). “Incorporated Bill of Rights guarantees are ‘enforced against the
States under the Fourteenth Amendment according to the same standards
that protect those personal rights against federal encroachment.’ ” Id.
(quoting McDonald, 561 U.S. at 765, 130 S. Ct. at 3035). Pursuant to the
Supremacy Clause, this court is bound to apply the Supreme Court’s
Fourteenth Amendment jurisprudence to resolve claims arising under the
Fourteenth Amendment. See Armstrong v. Exceptional Child Ctr., Inc., ___
U.S. ___, ___, 135 S. Ct. 1378, 1383 (2015) (explaining the Supremacy
Clause is not a source of substantive rights but instead provides for a
federal rule of decision where a litigant asserts a federal claim). The
32
Supreme Court’s Fourteenth Amendment jurisprudence does not dictate
the substance of the state law or the remedy for any violation of the same.
See Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 1608 (2008)
(“[I]t is not the province of the Fourth Amendment to enforce state law.
That Amendment does not require the exclusion of evidence obtained from
a constitutionally permissible arrest.”); Fuller v. Oregon, 417 U.S. 40, 48
n.9, 94 S. Ct. 2116, 2122 n.9 (1974) (“[T]he dissent purports to resolve
questions of state [constitutional] law that this Court does not have power
to decide.”); Nat’l Tea Co., 309 U.S. at 557, 60 S. Ct. at 679 (“It is
fundamental that state courts be left free and unfettered by us in
interpreting their state constitutions.”); see also Collins v. Virginia, ___ U.S.
___, ___, 138 S. Ct. 1663, 1680 n.6 (2018) (Thomas, J., concurring) (“[T]he
States are free to adopt their own exclusionary rules as a matter of state
law. But nothing in the Federal Constitution requires them to do so.”);
Massachusetts v. Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984)
(per curiam) (Stevens, J., concurring in the judgment).
This understanding that incorporation does not dictate the meaning
of state law is supported by former Oregon Supreme Court Justice Hans
Linde. Justice Linde is widely considered the “intellectual godfather” of
the new judicial federalism. James A. Gardner, The Failed Discourse of
State Constitutionalism, 90 Mich. L. Rev. 761, 774 (1992) (quoting Ronald
K.L. Collins, Forward: The Once “New Judicial Federalism” & Its Critics, 64
Wash. L. Rev. 5, 5 (1989)). Members of this court have favorably cited the
work of Justice Linde when interpreting the Iowa Constitution. See
Gaskins, 866 N.W.2d at 55 (Waterman, J., dissenting) (citing Hans A.
Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt.
L. Rev. 379, 392 (1980) [hereinafter Linde, First Things First]); Baldon, 829
N.W.2d at 821 (Appel, J., specially concurring) (quoting Justice Linde’s
33
opinion in State v. Kennedy, 666 P.2d 1316, 1322 (Or. 1983)). In Baldon,
Justice Appel noted Justice Linde was an “extraordinary state court judge[]
with [an] outstanding reputation[ who] ha[s] helped to develop what is now
a substantial body of independent state constitutional law.” 829 N.W.2d
at 828. He further noted there was “no basis to discount the work of th[is]
outstanding state supreme court justice[].” Id. He also lauded Justice
Linde’s outstanding extrajudicial scholarship. See id. at 828 n.23 (citing
Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga.
L. Rev. 165 (1984) [hereinafter Linde, E Pluribus]; Linde, First Things First,
9 U. Balt. L. Rev. 379).
Justice Linde has concluded in both his judicial and extrajudicial
work that state courts are free to interpret a parallel provision of a state
constitution as providing less protection than the Federal Constitution:
The state argues, correctly, that diversity does not
necessarily mean that state constitutional guarantees always
are more stringent than decisions of the Supreme Court under
their federal counterparts. A state’s view of its own guarantee
may indeed be less stringent, in which case the state remains
bound to whatever is the contemporary federal rule. Or it may
be the same as the federal rule at the time of the state court’s
decision, which of course does not prevent that the state’s
guarantee will again differ when the United States Supreme
Court revises its interpretation of the federal counterpart. The
point is not that a state’s constitutional guarantees are more
or less protective in particular applications, but that they were
meant to be and remain genuine guarantees against misuse
of the state’s governmental powers, truly independent of the
rising and falling tides of federal case law both in method and
in specifics.
Kennedy, 666 P.2d at 1323. Stated differently,
The right question is not whether a state’s guarantee is
the same as or broader than its federal counterpart as
interpreted by the Supreme Court. The right question is what
the state’s guarantee means and how it applies to the case at
hand. The answer may turn out the same as it would under
federal law. The state’s law may prove to be more protective
than federal law. The state law also may be less protective. In
34
that case the court must go on to decide the claim under
federal law, assuming it has been raised.
Linde, E Pluribus, 18 Ga. L. Rev. at 179.
The Michigan Supreme Court reached the same conclusion in Sitz
v. Department of State Police, 506 N.W.2d 209, 216–17 (Mich. 1993). That
court’s discussion of the issue is worth quoting at length here:
[A]ppropriate analysis of our constitution does not begin from
the conclusive premise of a federal floor. Indeed, the fragile
foundation of the federal floor as a bulwark against arbitrary
action is clearly revealed when, as here, the federal floor falls
below minimum state protection. As a matter of simple logic,
because the texts were written at different times by different
people, the protections afforded may be greater, lesser, or the
same.
Id. at 217 (footnote omitted). The court continued,
The image of federal constitutional law as a “floor” in
state court litigation pervades most commentary on state
constitutional law. Commentators contend that in
adjudicating cases, state judges must not adopt state
constitutional rules which fall below this floor; courts may,
however, appeal to the relevant state constitution to establish
a higher “ceiling” of rights for individuals. . . .
Certainly, as a matter of federal law, state courts are
bound not to apply any rule which is inconsistent with
decisions of the Supreme Court; the Supremacy Clause of the
Federal Constitution clearly embodies this mandate. It would
be a mistake, however, to view federal law as a floor for state
constitutional analysis; principles of federalism prohibit the
Supreme Court from dictating the content of state law. In
other words, state courts are not required to incorporate
federally-created principles into their state constitutional
analysis; the only requirement is that in the event of an
irreconcilable conflict between federal law and state law
principles, the federal principles must prevail.
....
[S]uch courts must undertake an independent
determination of the merits of each claim based solely on
principles of state constitutional law. If the state court begins
its analysis with the view that the federal practice establishes
a “floor,” the state court is allowing a federal governmental
body—the United States Supreme Court—to define, at least in
part, rights guaranteed by the state constitution.
35
Id. at 217 n.12 (alterations in original) (quoting Earl M. Maltz, False
Prophet—Justice Brennan and the Theory of State Constitutional Law, 15
Hastings Const. L.Q. 429, 443–44 (1988)).
Other courts have reached the same conclusion. See State v. Oliver,
372 S.E.2d 256, 259 (Ga. Ct. App. 1988) (“If anything, the Georgia
Constitution is less protective than the Fifth Amendment, for it recognizes
an exception to the bar against double jeopardy when the first trial ends
in a mistrial.”); State v. Jackson, 503 S.E.2d 101, 103–04 (N.C. 1998)
(“Strictly speaking, however, a state may still construe a provision of its
constitution as providing less rights than are guaranteed by a parallel
federal provision.”); Alva State Bank & Tr. Co. v. Dayton, 755 P.2d 635, 638
(Okla. 1988) (per curiam) (recognizing that if the state constitution
provides less protection than federal law, then “the question must be
determined by federal law”); Ex parte Tucci, 859 S.W.2d 1, 32 n.34 (Tex.
1993) (Phillips, C.J., concurring) (“Literally read, this position makes no
logical sense. If our text was written at a different time by different people
with different concerns, then the protection it affords may be greater,
lesser, or the same as that provided by a different provision in the United
States Constitution.”); Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim.
App. 1998) (en banc) (“The Supremacy Clause means that, in practical
terms, persons will always be able to avail themselves of the greater right.
This is very important to litigants and their counsel, who are naturally and
properly result-oriented. But it does not mean that a court, faithfully
interpreting state laws, can only find in them protections that equal or
exceed federal laws.”); State v. Briggs, 199 P.3d 935, 942 (Utah 2008)
(recognizing state law may “provide a lesser level of protection,” in which
case the court addresses the federal claim).
36
I thus conclude this court has a duty to independently interpret the
Iowa Constitution. This court discharges that duty by looking to the text
of the document through the prism of our precedent, tradition, and
custom. This court’s interpretation of the Iowa Constitution may be the
same as the Supreme Court’s interpretation of a parallel provision of the
Federal Constitution. This court’s interpretation of the Iowa Constitution
may be different than the Supreme Court’s interpretation of a parallel
provision of the Federal Constitution. But this court’s interpretation of the
Iowa Constitution is not dictated by the Supreme Court’s precedents under
the incorporation doctrine of the Federal Constitution.
II.
“Metaphors in law are to be narrowly watched, for starting as devices
to liberate thought, they end often by enslaving it.” Berkey v. Third Ave.
Ry., 155 N.E. 58, 61 (N.Y. 1926). This has been true of the floor–ceiling
metaphor. “However useful that floor-ceiling metaphor may be, it obscures
the larger truth that the level of protection of rights under the state
constitutions can be the same as, higher than, or lower than that provided
by the federal constitution.” Malyon v. Pierce County, 935 P.2d 1272, 1281
n.30 (Wash. 1997) (en banc) (quoting Neil McCabe, The State and Federal
Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L. Rev. 49,
50 (1992)). The failure of the metaphor has caused this court to undertake
its interpretive function with a results-oriented approach that has created
distortions in Iowa legal doctrine. Cf. Tucci, 859 S.W.2d at 32 n.34 (stating
the recognition “that ‘an independent state judiciary may interpret its
fundamental law as affording less protection than our federal charter’ . . .
will enhance the possibility of principled state constitutional development”
(quoting id. at 13 (plurality opinion))).
37
As an example of how the metaphor changed doctrine, consider this
court’s treatment of the exclusionary rule. In Boyd v. United States and
Weeks v. United States, the Supreme Court held that evidence obtained in
violation of the Federal Constitution was inadmissible in a criminal
proceeding. Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 346
(1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–57,
81 S. Ct. 1684, 1691–92 (1961); Boyd v. United States, 116 U.S. 616, 638,
6 S. Ct. 524, 536–37 (1886), abrogations recognized by Fisher v. United
States, 425 U.S. 391, 407–09, 96 S. Ct. 1569, 1579–80 (1976). In State v.
Tonn, 195 Iowa 94, 102–03, 104–07, 191 N.W. 530, 534, 535–36 (1923),
abrogated by State v. Hagen, 258 Iowa 196, 203–05, 137 N.W.2d 895, 899–
900 (1965), as recognized in State v. Taylor, 260 Iowa 634, 641–42, 144
N.W.2d 289, 293–94 (1966), this court considered Boyd and Weeks and
declined to adopt the exclusionary rule as a remedy for the violation of the
Iowa Constitution. Tonn remained good law for decades. See, e.g., State
ex rel. Hanrahan v. Miller, 250 Iowa 1369, 1375, 98 N.W.2d 859, 863
(1959); State v. Gillam, 230 Iowa 1287, 1289, 300 N.W. 567, 568 (1941);
State v. Rowley, 216 Iowa 140, 145–46, 248 N.W. 340, 342–43 (1933);
State v. Lambertti, 204 Iowa 670, 672, 215 N.W. 752, 753 (1927); State v.
Wenks, 200 Iowa 669, 670, 202 N.W. 753, 753 (1925); McNamara v.
Utterback, 200 N.W. 699, 700 (Iowa 1924); Lucia v. Utterback, 197 Iowa
1181, 1186, 198 N.W. 626, 628 (1924); Foley v. Utterback, 196 Iowa 956,
958, 195 N.W. 721, 722 (1923) (per curiam); Joyner v. Utterback, 196 Iowa
1040, 1044, 195 N.W. 594, 596 (1923).
In 2000, in Cline, this court concluded Mapp had abrogated Tonn.
See 617 N.W.2d at 287 (“Iowa did not again have a state exclusionary rule
until compelled to do so by the United States Supreme Court’s decision in
Mapp.”). The Cline court reasoned the authority to deviate from federal
38
law was limited to providing greater protection than the Federal
Constitution. See id. at 284–85.
Cline’s conclusion that Mapp required this court to adopt the
exclusionary rule as a remedy for a violation of state constitutional law
was incorrect. Cline’s conclusion is predicated on a misunderstanding of
federal law. In Wolf v. Colorado, the Supreme Court held the principles
underlying the Fourth Amendment were “enforceable against the States
through the Due Process Clause.” 338 U.S. 25, 27–28, 69 S. Ct. 1359,
1361 (1949), overruled on other grounds by Mapp, 367 U.S. at 654–55, 81
S. Ct. at 1691. The Supreme Court specifically declined to require the
states to adopt the exclusionary rule as the remedy for a violation of the
Federal Due Process Clause. See id. at 33, 69 S. Ct. at 1364 (“We hold,
therefore, that in a prosecution in a State court for a State crime the
Fourteenth Amendment does not forbid the admission of evidence
obtained by an unreasonable search and seizure.”). Subsequently, in
Mapp, the Supreme Court overruled Wolf and held the required remedy for
a violation of the Fourteenth Amendment right recognized in Wolf was the
exclusion of unlawfully obtained evidence from a criminal proceeding.
It is surprising this court immediately moved away from Tonn after
Mapp without explicitly overruling Tonn. A majority of the court in Mapp
did not even support the conclusion that a violation of the Fourth
Amendment, standing alone, required exclusion of the evidence. Justice
Stewart expressed no view on the constitutional issue. Mapp, 367 U.S. at
672, 81 S. Ct. at 1701 (Stewart, J., concurring in the judgment) (“I express
no view as to the merits of the constitutional issue which the Court today
decides.”). Justice Black concluded the Fourth Amendment, standing
alone, compelled no right to the exclusion of evidence. Id. at 661–62, 81
S. Ct. at 1695 (Black, J., concurring) (“I am still not persuaded that the
39
Fourth Amendment, standing alone, would be enough to bar the
introduction into evidence against an accused of papers and effects seized
from him in violation of its commands.”). Instead, he found the remedy to
be required due to the interaction of the Fourth and Fifth Amendments.
Id. at 662, 81 S. Ct. at 1695; see also Collins, ___ U.S. at ___, 138 S. Ct. at
1677–80, 1677 nn.2–3 (discussing Mapp). Justice Harlan, joined by
Justices Frankfurter and Whitaker, dissented. Mapp, 367 U.S. at 678–80,
81 S. Ct. at 1704–05 (Harlan, J., dissenting) (“I would not impose upon the
States this federal exclusionary remedy. The reasons given by the majority
for now suddenly turning its back on Wolf seem to me notably
unconvincing.”).
Regardless of whether Mapp was rightly or wrongly decided, the
important point of the discussion is this: Wolf and Mapp both involved the
resolution of claims arising under the Fourteenth Amendment. Neither
case compelled any state court to reach a particular resolution—whether
less protective, more protective, or as protective—of any legal claim arising
under its own state constitution. Cline was thus incorrect in stating Mapp
abrogated Tonn and precluded this court from interpreting the state
constitution to provide less protection than the Federal Constitution.
While there may be reasons why this court would want to adopt the
exclusionary rule for violations of the Iowa Constitution, many of which
are discussed in Cline, it was incorrect to say Mapp compelled this court
to do so.
III.
This special concurrence is not intended as a call to arms to find
less or more protection of individual rights under the Iowa Constitution as
compared to the United States Constitution. Instead, it is a call to
40
determine the meaning of the Iowa Constitution without an interpretive
predisposition that the Iowa Constitution must, as a matter of law, be
interpreted to provide only greater protection than the United States
Constitution. See Linde, E Pluribus, 18 Ga. L. Rev. at 179; see also
Gaskins, 866 N.W.2d at 21 n.7 (Iowa 2015) (Appel, J., concurring specially)
(“This case makes the powerful point that independent state constitutional
law is neither conservative nor liberal. It simply preserves what the United
States Supreme Court has referred to as our ‘free and unfettered’ authority
in interpreting our state constitution.” (quoting Nat’l Tea Co., 309 U.S. at
557, 60 S. Ct. at 679)); King v. State, 797 N.W.2d 565, 571 (Iowa 2011)
(“[W]e reserve the right to apply the principles differently under the state
constitution compared to its federal counterpart.”). In this particular case,
I concur with my colleagues that neither the United States Constitution
nor the Iowa Constitution provides Brown with any relief and that her
conviction should be affirmed.
41
#17–0367, State v. Brown
CADY, Chief Justice (dissenting).
I respectfully dissent from the decision of the majority to continue
to address claims of pretextual traffic stops without considering the
subjective motives of the officer involved once probable cause is found.
Our law must, instead, prohibit pretextual traffic stops motivated by race
or any other classification, even when probable cause for a traffic violation
exists. They are offensive to the values of our constitution and abhorrent
to the concept of justice expected by our constitution. They are one of
many reasons to explain why our criminal justice system has
disproportionally affected African-Americans in our state and across the
nation. In turn, they have helped create disproportionate paths and
outcomes in life and continue to prolong inequality within a system of
governing built on achieving equality. None of this will change, however,
until our law governing this issue changes. Law, in every instance, must
first reflect our highest understanding and then pass that understanding
onto those people it affects and those who implement it. While a legal
requirement for officers to exclude race as a motivation for a stop may be
difficult to enforce, this difficulty should itself not deny its force and effect.
Law enforcement officers place their lives on the line every day to uphold
the law under the most difficult circumstances. They serve to protect the
people at all costs. They would strive to enforce this law too, driven by the
understanding that identifying and removing race as a motivation for a
stop will extend protections to people far beyond the moment. This change
would work to eliminate the unconscious origin of a pervasive source of
discrimination and allow us to better achieve the equality promised in life
by our constitution. The law must always serve as the means to achieve
this end.
42
The majority suggests our previous interpretations of article I,
section 8 of the Iowa Constitution to mirror the Fourth Amendment of the
United States Constitution warrants a parallel analysis of pretextual stops.
While I respect the wisdom and competency of the Supreme Court, we
should not adopt its analysis of this issue at the expense of the rights of
Iowa’s citizens and, in particular, the rights of our citizens of color. 7 The
Supreme Court’s interpretation of constitutional rights under the Federal
Constitution need not limit the rights provided to Iowans under the Iowa
Constitution. State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (“[T]he
Supreme Court’s jurisprudence regarding the freedom from unreasonable
searches and seizures under the Fourth Amendment—or any other
fundamental, civil, or human right for that matter—makes for an
admirable floor, but it is certainly not a ceiling.”). We have routinely
recognized our authority in “independently construing provisions of the
Iowa Constitution that are nearly identical to the federal counterpart.”
State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (“[W]e jealously protect this
court’s authority to follow an independent approach under our state
constitution.”).
Unfortunately, the majority has not utilized our independence in
deciding the present case. Instead, it ultimately follows the reasoning of
7[T]he dual sovereignty found in our federal system provides state courts
with freedom to formulate their own answers to issues such as what is an
unreasonable search and seizure, what offends due process, and what
violates equal protection. But with freedom comes responsibility. And
responsibility can seem overwhelming. One way to deal with this is to
refuse to make difficult choices and to rely on ready-made interpretations
from the U.S. Supreme Court. But this is not the way the federal system
was intended to work. State courts must resist the temptation to “escape
from freedom.” The ongoing American experiment in federalism deserves
nothing less.
Timothy P. O’Neill, Escape from Freedom: Why “Limited Lockstep” Betrays Our System of
Federalism, 48 J. Marshall L. Rev. 325, 333–34 (2014).
43
the United States Supreme Court’s decision in Whren v. United States, 517
U.S. 806, 819, 116 S. Ct. 1769, 1777 (1996).
The Whren doctrine is wrong largely because it gives police officers
too much authority, which has led to the misuse of that authority and has
allowed police officers to engage in fishing expeditions based on offensive
motivations. Whren recognized race-based law enforcement as
unconstitutional but held “[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.” Id. at 813, 116 S. Ct. at
1774. In effect, the decision masks an officer’s improper racial motivations
when making a traffic stop. Impure motivations are deemed justified by
finding a traffic violation was committed, however minor that violation may
be. For this reason, Whren has been widely criticized as legalizing racial
profiling in the context of traffic stops. See Devon W. Carbado, From
Stopping Black People to Killing Black People: The Fourth Amendment
Pathways to Police Violence, 105 Calif. L. Rev. 125, 129 (2017) [hereinafter
Carbado] (“[T]he Court’s legalization of racial profiling exposes African
Americans not only to the violence of ongoing police surveillance and
contact but also to the violence of serious bodily injury and death.”);
Darrell D. Jackson, Profiling the Police: Flipping 20 Years of Whren on Its
Head, 85 UMKC L. Rev. 671, 680 (2017) [hereinafter Jackson] (arguing the
Court’s discussion of racial profiling under the Fourth Amendment
“authorized the use of racial profiling for all criminal investigations”); Kevin
R. Johnson, How Racial Profiling in America Became the Law of the Land:
United States v. Brignoni-Ponce and Whren v. United States and the Need
for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1070 (2010) [hereinafter
Johnson] (“The Court’s refusal to consider the intent of police officers in
its Fourth Amendment analysis created a safe haven for racial profiling by
the police.”). In effect, the Supreme Court “balanced the need of law
44
enforcement officers to engage in [discriminatory traffic stops] to root out
crime against the right of minority communities to be free from race-based
practices.” I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind.
L.J. 835, 859 (2008) [hereinafter Capers] (discussing the consequences of
the court’s stop-and-frisk decision).
The majority’s suggestion that the proper constitutional basis for a
discrimination claim is the Equal Protection Clause neglects the significant
difficulties in bringing a successful equal protection claim. 8 Furthermore,
the Equal Protection Clause’s civil remedy does not provide relief to
defendants facing criminal penalties. United States v. Nichols, 512 F.3d
789, 795 (6th Cir. 2008) (barring the exclusionary rule as a remedy for an
equal protection claim following an alleged racially motivated stop),
overruled on other grounds as recognized in United States v. Buford, 632
F.3d 264, 269 (6th Cir. 2011). But see Terry v. Ohio, 392 U.S. 1, 12, 88
S. Ct. 1868, 1875 (1968) (stating that the exclusionary rule “is the only
effective deterrent to police misconduct in the criminal context[] and that
without it the constitutional guarantee against unreasonable searches and
seizures would be a mere ‘form of words’ ” (quoting Mapp v. Ohio, 367 U.S.
643, 648, 81 S. Ct. 1684, 1688 (1961))).
Even under an equal protection analysis, the ultimate issue is
whether the disparate treatment is reasonable. Yet, it is article I, section 8
of the Iowa Constitution and the Fourth Amendment to the United States
Constitution that specifically require all seizures by law enforcement to be
“reasonable.” Clearly, the text of the Search and Seizure Clauses support
8“On average, to take an equal protection claim to trial costs anywhere from
$45,000 up to $125,000. Since the average defendant’s income is approximately between
$23,000 and $60,000,” most avenues for such litigation are unavailable. Jackson, 85
UMKC L. Rev. at 680 (footnote omitted).
45
a reasonableness test, and it is not enough to brush the issue of racial
profiling off as only an equal protection claim. 9
The Whren decision “has greatly expanded the authority and power
of law enforcement officers, and that discretion has exacerbated problems
with racial profiling in law enforcement.” Johnson, 98 Geo. L.J. at 1076.
Many people of color feel racial profiling is endemic in current criminal
enforcement. Id. Amici curiae, in support of Brown, state pretextual traffic
stops
[a]ffect[] minorities disproportionately[;] they put People of
Color in reasonable fear for the bodily safety and even the lives
of themselves, their children, their loved ones and friends; and
they exacerbate and perpetuate the profound problem of racial
disparities in the criminal justice system and society.
Brief of ACLU of Iowa et al. as Amici Curiae Supporting Appellant at 10,
State v. Brown, ___ N.W.2d ___ (Iowa 2019) (No. 17–0367). Amici also
provide statistical data showing people of color, particularly African-
Americans, are stopped, cited, and arrested at higher rates than
Caucasian drivers throughout Iowa. Id. at 16–22 (finding nineteen percent
of traffic stops in Iowa City involved minority drivers, although they made
up only ten percent of the city’s drivers, and black drivers in Scott County
9Moreover,
[t]he Fourth Amendment . . . should be read as a protection of what it
means to be “of the people,” a limitation upon the ability of government to
infringe upon the right to equal citizenship, equal worth, and equal
autonomy in conducting searches and seizures. To be clear, I am not
suggesting that the Fourth Amendment should be read as including
causes of action based on the denial of equal protection, or as
incorporating equal protection jurisprudence. What I am suggesting is
that Fourth Amendment jurisprudence be guided by a commitment to
equal citizenship.
I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 74 (2009).
46
were stopped “nearly three times as often as white drivers”) These
disturbing trends are present nationwide. 10
Even more alarming are instances when “an ordinary traffic stop [is]
a gateway to extraordinary police violence.” Carbado, 105 Calif. L. Rev. at
150, 163–64 (noting the police killings of Michael Brown, Walter Scott, Eric
Garner, Alexia Christian, Sheneque Proctor, and Kendra James started as
ordinary police interactions).
The majority contends that Brown has not provided any new
arguments to justify departing from our holdings in State v. Griffin, 691
N.W.2d 734, 737 (Iowa 2005), and State v. Predka, 555 N.W.2d 202, 215–
16 (Iowa 1996). It also suggests that racial profiling concerns should not
inform our decision now because such concerns were present when we
previously addressed the issue of pretext stops and did not influence our
decisions. The very fact that racial profiling concerns persist should
inform our decision today. Time has given us the opportunity to
understand the importance of addressing these issues, not only for people
of color who are negatively impacted, but also for all citizens. 11
10The State of Missouri compiles an annual summary of traffic stop data. Att’y
Gen. Josh Hawley, 2017 Vehicle Stops Executive Summary, Mo. Att’y Gen.,
https://www.ago.mo.gov/home/vehicle-stops-report/2017-executive-summary# (last
visited May 17, 2019). The summary includes a disparity index calculated by dividing
the percentage of traffic stops of a particular group by the percentage of the driving
population constituted by the same group. Id. Data from 2017 revealed that “accounting
for their respective proportions of Missouri’s driving-age population, African-Americans
were stopped at a rate 85% higher than Whites.” Id.
Data from a similar 2017 Illinois report indicated nearly sixty percent of law
enforcement agencies reported minority drivers were stopped at a higher rate than were
Caucasian drivers. Alexander Weiss Consulting, LLC, Illinois Traffic and Pedestrian Stop
Study: Traffic Stop Analysis 4–5 (Ill. Dep’t of Transp. 2017).
11Conceptual writings and empirical research have suggested that Whites
experience both positive (i.e., privileges) and negative (i.e., costs)
consequences as a result of racism. . . . The phrase costs of racism to
Whites is defined as negative psychosocial consequences that Whites
experience as a result of the existence of racism. Examples of these costs
include guilt and shame, irrational fear of people of other races, distorted
47
Since Griffin and Predka, our understanding of justice and the rights
entailed in maintaining justice have evolved. Marginalized groups have
continued to mobilize so that their voices can be heard and their struggles
recognized. See, e.g., Kimberlé Williams Crenshaw et al., African Am.
Policy Forum, Say Her Name: Resisting Police Brutality Against Black
Women 2 (2015) (“Say Her Name sheds light on Black women’s experiences
of police violence in an effort to support a gender-inclusive approach to
racial justice that centers all Black lives equally.”). The efforts of
marginalized groups have been impactful in raising awareness and
altering society’s collective understanding of the role race plays in policing.
While it is unfortunate we did not recognize racial bias as a compelling
consideration when deciding Griffin and Predka, it would be a deliberate
oversight not to do so now. As a branch of government committed to
justice and protection of the rights of all Iowans, we should not be so
beholden to the past that we prevent ourselves from enacting justice in the
present. In fact, Iowa’s judiciary has consistently led the charge in
recognizing civil liberties through thoughtful consideration of our
constitution and application of the truth as derived by cultural
understandings, societal changes, and research. See Varnum v. Brien, 763
N.W.2d 862, 906 (Iowa 2009) (holding a statute prohibiting same-sex
couples from marriage unconstitutional six years before the United States
Supreme Court followed suit); Coger v. Nw. Union Packet Co., 37 Iowa 145,
159–60 (1873) (barring common carriers from discriminating on the basis
beliefs regarding race and racism, and limited exposure to people of
different races and cultures.
Lisa B. Spanieman et al., Psychosocial Costs of Racism to Whites: Exploring Patterns Through Cluster
Analysis, 53 J. of Counseling Psychol. 434, 434–35 (2006) (citations omitted) (analyzing the psychosocial
costs of racism to Whites through a study of 230 White students, aged 18–44, attending a Midwestern
university).
48
of race); Clark v. Bd. of Dirs., 24 Iowa 266, 277 (1868) (concluding the
segregation of schools based on race was unconstitutional eighty-six years
before the United States Supreme Court decided the same); In re Ralph, 1
Morris 1, 7 (1839) (recognizing the freedom of a former slave in the Iowa
Supreme Court’s premier case); Russell E. Lovell II, Shine on, You Bright
Radical Star: Clark v. Board of School Directors (of Muscatine)—the Iowa
Supreme Court’s Civil Rights Exceptionalism, 67 Drake L. Rev. 175, 192
(2019) (discussing, among others, a 1869 Iowa court decision that allowed
Arabella Mansfield to become the nation’s first female attorney).
Additionally, the passage of time since Whren, Griffin, and Predka
has not only given way to a greater understanding of implicit bias, 12 but
also a greater understanding of the adverse role it can play in the vast
discretionary decisions that occur throughout our criminal justice system.
This new understanding supports a new approach to confronting implicit
bias in all areas of our justice system, including racial profiling in traffic
offenses. Moreover, the time and place for this new approach fits Iowa.
The growing understanding of implicit bias within the last decade has
supported a branchwide initiative to educate all Iowa judges and judicial
branch employees on implicit bias. This initiative has provided training to
all judges and continues today. Thus, our response in Iowa has not been
to see the problem as too big or too hard to solve, but it has been to work
to find a solution through greater understanding. We should follow this
same approach today in response to the problem of racial profiling in traffic
offenses.
12“Implicitbiases are the plethora of fears, feelings, perceptions, and stereotypes
that lie deep within our subconscious, without our conscious permission or
acknowledgement.” Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury
Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and
Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 149 (2010).
49
Accordingly, the claim by the majority that a departure from Whren
“would create instability in the law, hinder law enforcement efforts,
weaken the strength of our adversarial system, and undermine public
confidence in the legal system” is misplaced. In truth, the reasons
expressed by the majority to follow Whren better describe the
consequences of the failure to depart from it.
The majority suggests relying on a reasonableness standard would
result in judicial overreach, unfairly focusing on an officer’s subjective
state of mind. Yet, the suggestion that requiring officers to justify their
objective reasoning would greatly hinder law enforcement is cause for
concern, particularly because officers should only be utilizing objective
reasoning when effectuating a traffic stop. It indicates there may be too
heavy a reliance on pretextual stops. There is no element inherent in
enforcing traffic laws that require a police officer to engage in subjective
reasoning before making a traffic stop. Adopting a reasonableness
standard would not hinder law enforcement’s ability to enforce traffic laws.
Instead, it encourages equality in the enforcement of these laws.
The problem with pretextual stops does not stem from officers’
enforcement of legitimate traffic laws; it comes from the disparate impact
resulting from an officer’s ability to make a stop motivated by subjective
reasons, many times racial, and then only needing to justify the stop by
citing a minor traffic violation. Or, as in the present case, it comes from
an officer initially choosing not to enforce a traffic law, then deciding to
make the stop based on subjective criteria, and then justifying the stop
based on earlier objective reasons. For all that is known in this case, race
could have been an unconscious motive operating in the mind of the officer
from the beginning. Yet, our law does not make the officer accountable for
the unconscious motive, but allows it to be left in the recesses of the mind
50
and washed over with other motives such as gang affiliation in this case.
But even this motive has its own implicit bias because there was no
evidence of a criminal record or any particular background to show the
affiliation was of a criminal nature. Gang affiliation can exist in
neighborhoods for reasons independent of criminal activity and when
broadly used as a motivation for a stop can have the same effects as using
race. 13
This permissible use of discretion contributes to inequality in the
enforcement of traffic laws and subsequent prosecutions. In other cases,
officers stop drivers not because of known gang affiliation but because of
the color of their skin or their appearance, the neighborhood they are
driving in, or any number of impermissible factors. These people are
subjected to police stops, although others with different affiliations, skin
color, or neighborhoods, committing similar minor traffic offenses are not.
This type of policing results in a higher volume of violations found. In the
many instances in which no wrongdoing is discovered, those subjected to
the pretextual stops are left feeling targeted, unsettled, and apprehensive
of law enforcement. 14 The “protections meant to curtail law enforcement’s
abuse of authority during traffic stops” cited by the majority do not address
13When applied to “gangs”, risk analyses typically take the form of social
profiling. This involves constructing a matrix of variables and matching individuals to the
variables described in the gang matrix. Such processes tend to be descriptive and do little
to provide a basis for understanding why and how specific groups of young people
experience problems or find meaning in their lives. . . . [T]here is a strong correlation
between poverty and crime, yet all poor people do not become engaged in criminal activity;
nor do all ‘criminals’ originate from poor backgrounds. The same applies to gang
membership and gang activities.
Rob White, Disputed Definitions and Fluid Identities: The Limitations of Social Profiling
in Relation to Ethnic Youth Gangs, 8 Youth Justice 149, 157 (2008) (citation omitted).
14“For these target groups, the perception is that being black or Hispanic alone
carries a penalty: the taint of suspicion, the risk of a traffic stop, the risk of a canine sniff,
the risk of a search.” Capers, 83 Ind. L.J. at 849.
51
the disparity in making traffic stops and do nothing to address the problem
of racial profiling.
By placing a reasonableness component on the pretext, police will
still be able to use minor traffic stops to investigate reasonable suspicion
of other criminal activity, but the practice of pretextual stops unrelated to
specific and articulable facts of criminal activity will be significantly
reduced. This approach strikes the balance needed to advance the
interests of all in our society.
The majority suggests that the reasonable-officer standard would
place an undue burden on law enforcement. In criticizing the “mythical
reasonable officer,” the majority ignores the fact that a reasonable-person
standard has been routinely applied within the field of search and seizure
and has not crippled law enforcement’s ability to do their jobs. See, e.g.,
Terry, 392 U.S. at 30, 88 S. Ct. at 1884 (applying a reasonableness
standard to analysis of stop-and-frisk situations).
Finally, unlike the majority, I do not believe that departing from
Whren would weaken our adversarial system or undermine public
confidence. Just the opposite is true. Applying a reasonableness standard
would enhance the legitimacy of traffic stops and resulting prosecutions.
Departing from Whren would demonstrate this court’s refusal to provide a
safe harbor for implicit biases to thrive. Employing a standard that
demands fair and unbiased stops could also help to restore trust in law
enforcement amongst disillusioned demographics. 15
15In 2017, a nationwide survey indicated confidence in police had risen to fifty-
seven percent after a downward slope in 2014 and a record-tying low of fifty-two percent
in 2015. Jim Norman, Confidence in Police Back at Historical Average, Gallup (July 10,
2017), https://news.gallup.com/poll/213869/confidence-police-back-historical-
average.aspx [https://perma.cc/5BGE-JH34]. However, these overall trends disguise
significant drops across several demographics. Id.
Though the overall numbers have rebounded, the years of national turmoil
have only deepened the divide in the confidence that Americans of different
52
In effect, the majority concludes that our inability to control every
variable leading to disparate enforcement means we should avoid
addressing the issue of pretextual stops altogether. I disagree. The factors
leading to disparate enforcement may be numerous, but the vastness of
the problem emphasizes the necessity of our attention and in no way
absolves us from evaluating the constitutional issue presented in this
case. The difficulties in addressing this issue cannot excuse its
continuation.
The majority remains hopeful that the employment of technology,
such as police body cams and cell phone videos, will help monitor racial
profiling. Furthermore, the majority quotes State v. Lopez for the
proposition that “[t]he more evidence that a detention was motivated by
police suspicions unrelated to the traffic offense, the less credible the
officer’s assertion that the traffic offense occurred.” 873 P.2d 1127, 1138–
39 (Utah 1994). Yet, under Whren, the consequences remain the same no
matter whether the officer was racially motivated or whether video footage
caught the encounter as long as a traffic offense occurred. Thus, people
of color are still left with little protection against subjective enforcement of
the law.
Current solutions to the problem of pretextual stops may not be
perfect. 16 However, they are a profound step in the right direction. There
ages, ethnicities and political beliefs say they have in the police. The loss
of confidence is most apparent among Hispanics, liberals and those
younger than age 35.
Id. Confidence rates also dropped among Black citizens, moderates, and Democrats. Id.
16It
has been suggested the value of the “would have” test is limited to situations
when police officers admit to using subjective motivations. Margaret M. Lawton, The
Road to Whren and Beyond: Does the “Would Have” Test Work?, 57 DePaul L. Rev. 917,
918–19 (2008). Additionally, despite adopting the test, Washington courts may be
reluctant to find that a police officer is lying about their motivations or “have difficulty
discerning pretextual behavior without an admission.” Id. at 919.
53
is value in providing a constitutionally sound standard for defendants to
challenge police stops motivated by impermissible considerations. It
reinforces and legitimizes the principle “that the Constitution prohibits
selective enforcement of the law based on considerations such as race.”
Whren, 517 U.S. at 813, 116 S. Ct. at 1774. Moreover, it provides
defendants with the opportunity to meaningfully appeal adverse decisions,
an avenue effectively closed to them now. This is not only beneficial for
defendants but to our court system and the development of our caselaw.
It signals to law enforcement and courts that the use of implicit bias must
be acknowledged and curtailed.
The majority’s suggestion that the proposed solution will not achieve
the desired result because an officer who engages in racial profiling is likely
to be untruthful about it is off the mark. It neglects what might be the
most important aspect of this case and this issue. Police officers, like the
rest of us, have implicit biases they might not recognize. Simply acting on
these biases does not indicate an officer’s propensity to be untruthful. We
should have more faith in our law enforcement and give them the
opportunity to recognize their biases so that they can acknowledge and
limit acting on them. For example, officers should take the opportunity to
review the statistical data from their stops and analyze whether it reveals
disproportionate enforcement. Furthermore, law enforcement agencies
should invest in implicit-bias training so that all officers are aware of it.
These types of changes can be enacted even in the absence of judicial
action. 17 As it stands, the majority makes no move toward eliminating a
17It has been suggested that historically marginalized groups should utilize
profiling as a tool themselves “to identify, surveil, and if necessary, instigate proceedings
against problem police officers.” Jackson, 85 UMKC L. Rev. at 688. “[D]eveloping an
offender profile[] is to present information that describes the characteristics of a probable
offender and aid[s] in the analysis of the data for predicting future offenses and/or
victims.” Id. at 685; see also Linh Ta, Des Moines Police Know They’re Biased. Here’s
54
practice that we recognize as unconstitutionally discriminatory. If our law
projects that this practice is wrong, we can properly assume officers have
enough respect for the law to comply with it. We would take a big step
forward today if we were to use article I, section 8 of our constitution to at
least say it is illegal for a police officer to use race or any other protected
classification as the motivating factor to make a stop for a minor traffic
violation, instead of following the Whren doctrine.
Judges have always been called upon to understand each issue that
comes into the court from both perspectives and to then use this dual
vision to build a model that solves the problem. The issues of racial
profiling and implicit bias presented in this case are uniquely complex, but
they can only be solved by understanding this complexity and by building
a standard that projects this understanding to all.
How They’re Trying to Mitigate It, Des Moines Register (Aug. 13, 2017, 4:04 PM),
https://www.desmoinesregister.com/story/news/crime-and-courts/2017/08/13/des-
moines-police-know-theyre-biased-heres-how-theyre-trying-mitigate-it/311895001/.
Another proposal supports harsher penalties for officers who commit perjury
when testifying about an incident. Capers, 83 Ind. L.J. at 873. Such officers “should be
investigated and prosecuted to the same extent a civilian witness would be.” Id.
55
#17–0367, State v. Brown
APPEL, Justice (dissenting).
Under article I, section 8 of the Iowa Constitution, can a police officer
use a common minor traffic violation as an after-the-fact pretext to seize a
vehicle and its passengers when the actual reason for the stop was
constitutionally inadequate? Today’s majority says yes. I say NO!
I. Summary.
History demonstrates that one of the fundamental purposes of
search and seizure law is to cabin the discretion of police officers in
choosing whom to subject to search and seizure. Generalized discretion
in the hands of a law enforcement official has been anathema to the search
and seizure provisions of both the Fourth Amendment and article I, section
8 of the Iowa Constitution. No case considering search and seizure issues
can be consistent with the history and purpose of the constitutional
provisions without carefully considering whether the discretion of police
officers is so unbridled that it vests in them power equivalent to the hated
general authority to search.
As will be seen below, in my view, law enforcement officers have what
amounts to general authority to seize drivers on the open road due to the
density of traffic regulations and the pervasiveness of minor violations.
That means that the traditional limitations to search and seize do not
apply on the open road and the risk of arbitrary enforcement is great. As
a result, consistent with the history and purpose of search and seizure
law, there must be constitutional restraints on the generalized discretion
in order to protect citizens from arbitrary actions of law enforcement.
For many years, our legal tradition frowned on pretextual searches
as violating search and seizure principles. Early federal cases questioned
the validity of pretextual searches. And up until the 1990s, the trend
56
among state courts was to disapprove pretextual searches as violating
search and seizure. Iowa caselaw was part of the general trend for
decades.
All that changed when the Supreme Court announced its decision
in Whren v. United States, 517 U.S. 806, 811–16, 116 S. Ct. 1769, 1773–
76 (1996). As will be explored below, Whren departed from the trend in
state courts and made a flawed turn in the development of search and
seizure law. In my view, the wrong turn made in Whren should not be
emulated by this court in its interpretation of the Iowa Constitution.
As a state supreme court, we are not bound by Whren but should
only consider it to the degree it is persuasive. It is well established in other
states and in Iowa that the mere fact there is a similarity in the language
of the Fourth Amendment and article I, section 8 of the Iowa Constitution
does not mean that federal precedent has any more power beyond its
ability to persuade. I find Whren unpersuasive because of its failure to
limit general police discretion to engage in roadway seizures. In light of its
unconvincing rationale and the weakness of existing authority, the
doctrine of stare decisis does not excuse us from considering the validity
of pretextual stops under the Iowa Constitution.
The decision in this case is bad law. The approach of the majority
fails to recognize the history of search and seizure law and the importance
of curbing generalized law enforcement discretion, fails to recognize that
law enforcement in practice has general authority to stop vehicles on the
open road due to the pervasiveness of regulations, fails to recognize or deal
with the problems of implicit bias, fails to recognize the reality of racial
profiling, fails to recognize the shortcomings of alternative remedies, and
fails to recognize the constitutional harms caused by generalized seizures
on the open road.
57
Because of the importance of the issue, an in-depth analysis of the
history of search and seizure law, the doctrinal developments in the law,
and the impact on the law in light of current realities is appropriate. We
simply should not bless pretextual stops by law enforcement without a
thorough understanding of where the law has been, how it has evolved,
and how it might develop.
II. Factual Background and Proceedings.
A. Initial Proceedings. On November 23, 2015, the State filed a
trial information charging Scottize Brown with a second offense of
operating a motor vehicle while intoxicated, an aggravated misdemeanor,
in violation of Iowa Code section 321J.2(2)(b) (2016). Brown pled not
guilty. She subsequently filed a motion to suppress, claiming she was
unlawfully subjected to a pretextual stop. In her motion to suppress,
Brown claimed that the stop violated both the Fourth Amendment of the
United States Constitution and article I, section 8 of the Iowa Constitution.
B. Evidence Presented at the Motion to Suppress Hearing. At
the motion to suppress hearing, Waterloo police officer Justin Brandt
testified that he observed a Lincoln Navigator cross the centerline while
driving through an intersection on a yellow light in Waterloo, Iowa, in the
early morning hours. Officer Brandt told the court he followed the vehicle
and “ended up running the license plate on it.” He determined that the
registered owner of the vehicle had a valid license. Officer Brandt testified
that he then “got curious” and, “having the time to do so,” opened up a
database and “somewhere in that database [he] ended up seeing that there
is some kind of connection with gang activity or something with the
registered owner.” Officer Brandt further testified that he noticed that one
of the two license plate lamps on the vehicle was not operating. According
to Brandt, he “wasn’t even going to stop” the car for the traffic violations
58
until he ran the plate and learned of the gang affiliation of the owner. Upon
learning of the gang affiliation, he wanted to “poke around and see what’s
up.”
Officer Brandt told the court he then followed the vehicle for a couple
of blocks, after which he activated his emergency lights to conduct a traffic
stop. The vehicle continued on, however, and Officer Brandt initiated his
siren. At that point, the vehicle stopped.
Officer Brandt approached the vehicle and obtained identification
from Brown as the driver of the vehicle. Officer Brandt testified that he
could smell alcohol and saw an open can of beer in the front cup holder.
According to Officer Brandt, Brown admitted to drinking earlier but said
the open can was not hers. Officer Brandt determined that Brown was
driving with a suspended license and transported her to the police station.
At the police station, Officer Brandt stated, Brown failed several field
sobriety tests and refused to submit to a breath test.
C. District Court Ruling on the Motion to Suppress. The district
court denied Brown’s motion to suppress. It noted that Officer Brandt first
observed the vehicle at a red light where it made an improper turn. The
district court found that after observing the improper turn, Officer Brandt
determined that the registered owner was associated with local gang
activity. It further found that Officer Brandt followed the vehicle to another
red light, where he observed one of the vehicle’s license plate lights was
not properly functioning. According to the district court, it was apparent
that Officer Brandt would not have made the stop absent the gang
affiliation of the registered owner.
The district court held that notwithstanding the subjective
motivation of Officer Brandt, he had observed a traffic infraction—the
improper turn—as well as an equipment violation—the license plate light.
59
It held that because there were objective violations, the subjective motive
of Officer Brandt did not matter. In support of its legal conclusion, the
district court cited State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996),
and State v. Harrison, 846 N.W.2d 362 (Iowa 2014). As a result, the district
court denied the motion to suppress. 18
The matter proceeded to trial on the minutes of testimony. The
district court found Brown guilty of operating a motor vehicle while
intoxicated, second offense. Brown appealed.
D. Issues on Appeal. On appeal, Brown argues that the district
court erred by failing to suppress the evidence arising from the seizure of
the automobile she was driving. Brown claims that the stop was not, in
fact, initiated as a result of a minor traffic infraction but was pretextual in
nature and that the real reason for the stop was constitutionally
insufficient. On appeal, Brown makes her claim solely under article I,
section 8 of the Iowa Constitution.
III. Standard of Review.
This court reviews claims of unconstitutional searches and seizures
de novo. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). In engaging in
de novo review, “[w]e independently evaluate the totality of the
circumstances found in the record, including the evidence introduced at
both the suppression hearing and at trial.” State v. Vance, 790 N.W.2d
18The district court did not cite either the Fourth Amendment of the United States
Constitution or article I, section 8 of the Iowa Constitution. Under these circumstances,
claims under both Constitutions are preserved. See Lamasters v. State, 821 N.W.2d 856,
864 (Iowa 2012) (“If the court’s ruling indicates that the court considered the issue and
necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue
has been preserved.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)); cf.
State v. Childs, 898 N.W.2d 177, 191 (Iowa 2017) (Hecht, J., dissenting) (“ ‘[W]hen there
are parallel constitutional provisions in the Federal and State Constitutions and a party
does not indicate the specific constitutional basis, we regard both federal and state
constitutional claims as preserved,’ even if the district court did not rule on both.”
(quoting State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015))).
60
775, 780 (Iowa 2010). Here, however, Brown waived her right to a jury
trial and pled guilty. As a result, there is no trial court evidentiary record
to review.
IV. Overview of Search and Seizure Law.
A. Historical Overview of Relevant Search and Seizure Law.
1. Hatred of general warrants and writs of assistance animates the
American Revolution. In several recent cases, this court explored the
history of search and seizure law under the Federal and Iowa
Constitutions. See, e.g., Godfrey v. State, 898 N.W.2d 844, 866–67 (Iowa
2017); State v. Short, 851 N.W.2d 474, 481–84 (Iowa 2014); State v.
Baldon, 829 N.W.2d 785, 805–09 (Iowa 2013) (Appel, J., specially
concurring); State v. Ochoa, 792 N.W.2d 260, 269–75 (Iowa 2010). A brief
summary of this history provides the context for consideration of the
questions posed in this case.
One of the great advancements in English law during the eighteenth
century was the development and clear articulation of judicial protection
of individuals from arbitrary, government-sponsored search and seizure.
The key cases center around the efforts of Lord Halifax’s government to
suppress dissent. Government agents generally ransacked residences and
premises looking for telltale signs of involvement in the publication of a
scurrilous antigovernment broadside. Thomas K. Clancy, The Fourth
Amendment: Its History and Interpretation § 2.2.3.2, at 36 (2008); Andrew
E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and
Seizure, 1789–1868, at 20 (2006). In a series of cases, the English courts
held that such searches without probable cause were illegal and imposed
hefty fines against the perpetrators. Entick v. Carrington (1765) 95 Eng.
Rep. 807, 818; 2 Wils. K.B. 275, 292; Wilkes v. Wood (1763) 98 Eng. Rep.
61
489, 498–99; Lofft 1, 18–19; Huckle v. Money (1763) 95 Eng. Rep. 768,
768–69; 2 Wils. K.B. 205, 205–07.
The forces of resistance to generalized governmental searches
traveled in the boats over to the New World and landed in the infamous
Paxton’s Case. See Tracey Maclin, The Complexity of the Fourth
Amendment: A Historical Review, 77 B.U. L. Rev. 925, 946 (1997)
[hereinafter Maclin, The Complexity of the Fourth Amendment]. In Paxton’s
Case, James Otis Jr., a prominent Massachusetts lawyer and powerful
orator, bitterly attacked the Crown’s provincial agents for engaging in
arbitrary searches under generalized writs of assistance that did not name
a specific individual but authorized the Crown’s minions to search in their
discretion for evidence of evasion of British mercantile policy. William J.
Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602–1791,
at 377–82, 385–95 (2009) [hereinafter Cuddihy]; Maclin, The Complexity of
the Fourth Amendment, 77 B.U. L. Rev. at 946.
Otis lost the case, but the powerful blows struck by his forceful
argument were not lost on John Adams, who declared, “Then and there
the Child Independence was born.” Jacob W. Landynski, Search and
Seizure and the Supreme Court: A Study in Constitutional Interpretation 37
(1966) (quoting Letter from John Adams to William Tudor (Mar. 29, 1817),
in 10 The Works of John Adams 244, 247–48 (Charles Francis Adams ed.,
Bos., Little, Brown & Co. 1856)). Adams remembered the lessons of
Paxton’s Case when he drafted the Massachusetts Constitution of 1780.
Leonard W. Levy, Origins of the Bill of Rights 158 (1999); John M. Murrin,
From Liberties to Rights: The Struggle in Colonial Massachusetts, in The Bill
of Rights and the States: The Colonial and Revolutionary Origins of
American Liberties 63, 91 (Patrick T. Conley & John P. Kaminski eds.,
1992). In the Massachusetts Constitution, Adams included a search and
62
seizure provision that limited the authority of the government to engage in
searches without a particularized warrant. Thomas Y. Davies, Recovering
the Original Fourth Amendment, 98 Mich. L. Rev. 547, 684–85 (1999)
[hereinafter Davies]. But cf. Tracey Maclin, Race and the Fourth
Amendment, 51 Vand. L. Rev. 333, 333–36 (1998) [hereinafter Maclin,
Race and the Fourth Amendment] (discussing arbitrary and discriminatory
search and seizure practices of slave patrols in the colonial American
South). See generally Akhil Reed Amar, Fourth Amendment First Principles,
107 Harv. L. Rev. 757, 779–80 & n.87 (1994) (discussing historical
predicate for the particularized-warrant requirement in American law).
The precedent set in the Massachusetts Constitution, and other
state constitutions enacted shortly thereafter, had a dramatic influence on
the development of the United States Constitution. See Short, 851 N.W.2d
at 481–82. The United States Constitution was ratified only upon the
assurance by James Madison and others that a series of amendments
known as the Bill of Rights would be adopted after enactment. In drafting
the Bill of Rights, Madison looked to state constitutional tradition in
developing what became the Fourth Amendment to the United States
Constitution. William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977); see
Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What
Individual Rights Are Really Deeply Rooted in American History and
Tradition?, 85 S. Cal. L. Rev. 1451, 1454–55, 1491–92 (2012) [hereinafter
Calabresi et al.]. Indeed, all of the Bill of Rights provisions had
predecessors in prior state constitutions. See Calabresi et al., 85 S. Cal.
L. Rev. at 1454–55, 1491–92. The notion of a bill of rights was not a
concept developed by the federal framers and then copied by the states,
63
but was a concept embraced by state constitutions and later adopted by
the federal framers. Short, 851 N.W.2d at 481–82.
Iowa adopted two state constitutions: the first in 1846 and the
second in 1857. See id. at 482. The search and seizure language adopted
in article I, section 8 of both the Iowa Constitution of 1846 and of 1857 is
nearly identical to the Federal Constitution except for the use of a
semicolon instead of a comma between the reasonableness clause and the
warrant clause. Compare U.S. Const. amend. IV, with Iowa Const. art. I,
§ 8. The language in the Federal Constitution was largely derived from
eight state constitutions that had search and seizure provisions prior to
the adoption of the federal document. See Bernard Schwartz, The Great
Rights of Mankind: A History of the American Bill of Rights 88 (expanded
ed. 1992).
Although the language in the Fourth Amendment and article I,
section 8 is similar. there is no reason for a state court to be “bound” by
federal interpretations of the Fourth Amendment. As noted by Judge
Jeffrey Sutton, “There is no reason to think, as an interpretive matter, that
constitutional guarantees . . . , even guarantees with the same or similar
words, must be construed the same.” Short, 851 N.W.2d at 487 (quoting
Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional Law,
59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter Sutton]). We have
explained the principles of independent interpretation of the Iowa
Constitution on several occasions. See, e.g., id. at 481–92; Baldon, 829
N.W.2d at 803–34; State v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011);
Ochoa, 792 N.W.2d at 264–67.
We are not alone. See, e.g., Wright v. State, 108 N.E.3d 307, 315
(Ind. 2018) (explaining that the state constitution demands independent
analysis in light of its uniqueness); State v. Gerschoffer, 763 N.E.2d 960,
64
965 (Ind. 2002) (“The Indiana Constitution has unique vitality, even where
its words parallel federal language.”); People v. Barber, 46 N.E.2d 329, 331
(N.Y. 1943) (pointing out that the New York Court of Appeals is “bound to
exercise its independent judgment and is not bound by a decision of the
Supreme Court of the United States limiting the scope of similar
guarantees in the Constitution of the United States”); State v. Arrington,
319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the
Constitution of North Carolina, this Court is not bound by opinions of the
Supreme Court of the United States construing even identical provisions
in the Constitution of the United States.”); Commonwealth v. Edmunds,
586 A.2d 887, 895–96 (Pa. 1991) (“Although the wording of the
Pennsylvania Constitution is similar in language to the Fourth
Amendment of the United States Constitution, we are not bound to
interpret the two provisions as if they were mirror images, even where the
text is similar or identical.”); O’Boyle v. State, 117 P.3d 401, 408 (Wyo.
2005) (noting that the search and seizure provision of the Wyoming
Constitution, which parallels the Fourth Amendment, “constitutes a
separate and independent source of protection of the rights of Wyoming
citizens”). See generally Baldon, 829 N.W.2d at 824.
2. Search and seizure concepts: Requirement of justification
supporting particular searches and protection of the public against arbitrary
government action. The search and seizure provisions of the Federal
Constitution and the Iowa Constitution perform two functions. First, the
search and seizure provisions are designed to ensure that government
searches and seizures are justified. The justification ordinarily requires
the state to establish to the satisfaction of a neutral magistrate that the
proposed search or seizure is supported by probable cause and that the
search is limited both with respect to its scope and purpose.
65
Second, however, the search and seizure provisions are designed to
ensure that the government does not engage in the arbitrary exercise of
power. For example, in Entick, Judge Pratt bristled at the notion that the
Crown could willy-nilly engage in searches based on common activity. 95
Eng. Rep. at 818; 2 Wils. K.B. at 292. Judge Pratt acknowledged that
although prior caselaw said that a man may be “punishable for having a
libel in his private custody,” “half the kingdom would be guilty . . . if libels
may be searched for and seized by whomsoever and wheresoever the
Secretary of State thinks fit.” Id.
Just as in Wilkes, Entick, and other cases, the attacks against writs
of assistance in America prior to the American Revolution were also based
on the potential of arbitrary enforcement of broadly framed, general power.
As noted by the Supreme Court in one of its first Fourth Amendment cases,
James Otis declared the writs of assistance were
“the worst instrument of arbitrary power, the most destructive
of English liberty and the fundamental principles of law, that
ever was found in an English law book;” since they placed “the
liberty of every man in the hands of every petty officer.”
Boyd v. United States, 116 U.S. 616, 625, 6 S. Ct. 524, 529 (1886) (quoting
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest
upon the Legislative Power of the States of the American Union 368 (Bos.,
Little, Brown & Co., 5th ed. 1883)), abrogations on other grounds
recognized by Fisher v. United States, 425 U.S. 391, 407–09, 96 S. Ct.
1569, 1579–80 (1976). “[C]olonists who battled the British did not trust
or defer to the judgments of British customs officials” in furthering what
the British, no doubt, thought was the critically important public policy of
financing the cost of the public defense of the colonists, through arbitrary
search and seizure of untaxed goods authorized by open-ended writs. See
Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. &
66
Mary L. Rev. 197, 248 (1993) [hereinafter Maclin, The Central Meaning of
the Fourth Amendment].
Indeed, just as, according to Entick, half the kingdom would be
subject to arbitrary search and seizure because of the prevalence of private
libel, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292, smuggling to avoid taxes in
the colonies was extremely common, Barbara C. Salken, The General
Warrant of the Twentieth Century? A Fourth Amendment Solution to
Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,
255–56 (1989). It is not surprising that, in the New World, warnings arose
about unfettered discretion to search and seize. In words echoing Judge
Pratt, Mercy Otis Warren, James Otis’s daughter, cautioned that without
a Bill of Rights, the proposed Federal Constitution would tolerate “the
insolence of any petty revenue officer to enter our houses, search, insult,
and seize at pleasure.” Paul Finkelman, The Ten Amendments as a
Declaration of Rights, 16 S. Ill. U. L.J. 351, 392 (1992) [hereinafter
Finkelman] (quoting A Columbian Patriot (Mercy Otis Warren),
Observations on the New Constitution, and on the Federal and State
Conventions (1788), reprinted in 16 The Documentary History of the
Ratification of the Constitution 272, 281 (Merrill Jensen ed., 1976)). In
short, the “general warrants known as writs of assistance [that] . . .
bedeviled the colonists” remained “[v]ivid in the memory of the newly
independent Americans.” Stanford v. Texas, 379 U.S. 476, 481, 85 S. Ct.
506, 510 (1965).
In the words of Professor Anthony Amsterdam in his often cited and
unsurpassed article on the Fourth Amendment, search and seizure law
protects against not only unjustified searches but also arbitrary searches
and seizures “conducted at the discretion of executive officials, who may
act despotically and capriciously in the exercise of the power to search and
67
seize.” Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58
Minn. L. Rev. 349, 411 (1974) [hereinafter Amsterdam]. Professor
Amsterdam went on to explain,
A paramount purpose of the fourth amendment is to prohibit
arbitrary searches and seizures as well as unjustified
searches and seizures. . . . Arbitrary searches and seizures
are “unreasonable” searches and seizures; ruleless searches
and seizures practiced at the varying and unguided discretion
of thousands of individual peace officers are arbitrary
searches and seizures; therefore, ruleless searches and
seizures are “unreasonable” searches and seizures.
Id. at 417. Before the innovations in search and seizure doctrine in the
Burger–Rehnquist–Roberts era, the Supreme Court repeatedly recognized
that the constitutional limitations on search and seizure protect people
against arbitrary government acts. See, e.g., Camara v. Mun. Ct. of S.F.,
387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967); see also United States v.
Ortiz, 422 U.S. 891, 895, 95 S. Ct. 2585, 2588 (1975); United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2579 (1975).
By controlling otherwise unfettered search and seizure discretion of
law enforcement, the Fourth Amendment, from the get-go, protected
unpopular minorities against majoritarian government institutions. For
example, Madison—the author of the Fourth Amendment—was well aware
of the general searches of the homes of unpopular minority Philadelphia
Quakers whose pacifist inclinations were thought to be evidence that they
were British spies. See Cuddihy at 618–19; Anthony C. Thompson,
Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U.
L. Rev. 956, 996 (1999) [hereinafter Thompson]. Although African-
Americans were not afforded equal status by the federal government until
at least the passage of the Reconstruction Amendments, the notion that
the Fourth Amendment was designed to protect powerless minorities
seems to have been well established. See Thompson, 74 N.Y.U. L. Rev. at
68
996–98. As noted by prominent legal scholar John Hart Ely, the Fourth
Amendment is “concerned with avoiding indefensible inequities in
treatment” as it may be seen as a “harbinger of the Equal Protection
Clause.” John Hart Ely, Democracy and Distrust: A Theory of Judicial
Review 97 (1980).
In light of the above history, Chief Justice Warren Burger, then
serving on the D.C. Circuit Court of Appeals, accurately observed that the
search and seizure provisions of the Fourth Amendment reflect “deeply
rooted national skepticism toward police and indeed all public authority,”
“a sort of briny irreverence toward officials.” Warren E. Burger, Who Will
Watch the Watchman?, 14 Am. U. L. Rev. 1, 1, 4 (1964) [hereinafter Burger]
(quoting Edmond Cahn, The Predicament of Democratic Man 24 (1961)
[hereinafter Cahn]). The founders “viewed official power with an almost
paranoid suspicion; and they believed that suspicion justified by power’s
inherent nature.” Donald Dripps, Living With Leon, 95 Yale L.J. 906, 938
(1986). Professor Amsterdam, after reviewing the history of the Fourth
Amendment, wrote that “[t]he Bill of Rights in general and the fourth
amendment in particular are profoundly anti-government documents.”
Amsterdam, 58 Minn. L. Rev. at 353. Professor Tracey Maclin agrees,
noting that “the central meaning of the Fourth Amendment is distrust of
police power and discretion.” Maclin, The Central Meaning of the Fourth
Amendment, 35 Wm. & Mary L. Rev. at 201.
The Supreme Court reflected the attitude of the Revolutionary Era
when it observed in McDonald v. United States that “[p]ower is a heady
thing; and history shows that the police acting on their own cannot be
trusted.” 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948). Similarly, in
Trupiano v. United States, the Supreme Court stated that “sad experience
had taught [the people of the United States] that the right to search and
69
seize should not be left to the mere discretion of the police.” 334 U.S. 699,
709–10, 68 S. Ct. 1229, 1234 (1948), overruled in part on other grounds by
United States v. Rabinowitz, 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950),
overruled by Chimel v. California, 395 U.S. 752, 766–68, 89 S. Ct. 2034,
2041–43 (1969). In Johnson v. United States, the Supreme Court
emphasized that the Constitution places individual interests in privacy,
personal security, and human dignity on a higher plane than society’s
interest in catching criminals. See 333 U.S. 10, 13–14, 68 S. Ct. 367, 368–
69 (1948).
While article I, section 8 of the Iowa Constitution was adopted
several decades after the Federal Constitution and the Bill of Rights, the
Iowa constitutional provision was also designed to protect individuals
against the unjustified and arbitrary exercise of government power.
Indeed, the placement of the Iowa Bill of Rights in the very first article of
the Iowa Constitution emphasizes its constitutional importance. See
Baldwin v. City of Estherville, 915 N.W.2d 259, 285 (Iowa 2018) (Appel, J.,
dissenting). Further, article I, section 1 of the Iowa Constitution, the
prelude to all other provisions of article I, emphasizes the “inalienable”
rights of Iowans. Iowa Const. art. I, § 1; see Baldwin, 915 N.W.2d at 285.
According to George Ells, chair of the Committee on the Preamble and Bill
of Rights of the 1857 Iowa Constitutional Convention, our Bill of Rights
would enlarge, and not curtail[,] the rights of the people . . .
[and] put upon record every guarantee that could be
legitimately placed there in order that Iowa . . . [would] have
the best and most clearly defined Bill of Rights.
1 The Debates of the Constitutional Convention of the State of Iowa 100
(W. Blair Lord rep., 1857) [hereinafter The Debates], https://
www.statelibraryofiowa.org/services/collections/law-library/iaconst. See
generally Short, 851 N.W.2d at 482–83 (discussing development of Iowa’s
70
Bill of Rights). If the Fourth Amendment is to be read with a “briny
irreverence” toward government power, Burger, 14 Am. U. L. Rev. at 4
(quoting Cahn at 24), the approach applies with equal if not greater force
to article I, section 8 of the Iowa Constitution.
B. Dynamic Development of State and Federal Search and
Seizure Doctrine.
1. Federal doctrine: Abandonment of warrant-preference approach in
favor of open-ended “reasonableness.” Over the years, the United States
Supreme Court has struggled to develop a coherent body of law under the
Fourth Amendment. See generally, e.g., Coolidge v. New Hampshire, 403
U.S. 443, 483, 91 S. Ct. 2022, 2047 (1971) (acknowledging lack of
consistency and clarity in the Court’s Fourth Amendment cases);
Amsterdam, 58 Minn. L. Rev. at 349. Particularly after the horrifying
search and seizure abuses in Germany before and during World War II,
however, the United States Supreme Court increasingly emphasized the
role of the Fourth Amendment in cabining the exercise of arbitrary
governmental power.
The leading Court historians on search and seizure were Justice
Robert Jackson, the chief counsel at Nuremburg, and Justice Felix
Frankfurter. See generally Rabinowitz, 339 U.S. at 68–69, 70 S. Ct. at 436
(Frankfurter, J., dissenting); Amsterdam, 58 Minn. L. Rev. at 369; Victoria
A. Graffeo, Robert H. Jackson: His Years as a Public Servant “Learned in
the Law,” 68 Albany L. Rev. 539, 546 (2005). Justice Jackson noted,
[T]he forefathers, after consulting the lessons of history,
designed our Constitution to place obstacles in the way of a
too permeating police surveillance, which they seemed to
think was a greater danger to a free people than the escape of
some criminals from punishment.
71
United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229 (1948).
Further, Justice Jackson wrote that search and seizure rights
are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none
is so effective in cowing a population, crushing the spirit of
the individual and putting terror in every heart. Uncontrolled
search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government.
Brinegar v. United States, 338 U.S. 160, 180, 69 S. Ct. 1302, 1313 (1949)
(Jackson, J., dissenting). Similarly, Justice Frankfurter observed, “The
security of one’s privacy against arbitrary intrusion by the police—which
is at the core of the Fourth Amendment—is basic to a free society.” Wolf
v. Colorado, 338 U.S. 25, 27, 69 S. Ct. 1359, 1361 (1949), overruled on
other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S. Ct. 1684,
1691 (1961). 19
The influence of Justices Jackson and Frankfurter continued after
they left the bench. Eventually, the Supreme Court developed an approach
to the open-textured language of the Fourth Amendment known as the
warrant-preference theory. See generally Cuddihy at 602, 633–37, 734–
42 (concluding that the warrant-preference approach was the most
consistent with the founders’ intentions); Morgan Cloud, Searching
19State courts have also recognized the fundamental importance of search and
seizure law to a democratic society. As the Florida Supreme Court observed,
Roving patrols, random sweeps, and arbitrary searches or seizures would
go far to eliminate such crime in this state. Nazi Germany, Soviet Russia,
and Communist Cuba have demonstrated all too tellingly the effectiveness
of such methods. Yet we are not a state that subscribes to the notion that
ends justify means. History demonstrates that the adoption of repressive
measures, even to eliminate a clear evil, usually results only in repression
more mindless and terrifying than the evil that prompted them.
Bostick v. State, 554 So. 2d 1153, 1158–59 (Fla. 1989), rev’d on other grounds, 501 U.S.
429, 439–40, 111 S. Ct. 2382, 2389 (1991); see also McCoy v. State, 491 P.2d 127, 138
(Alaska 1971) (“Certainly the Fourth Amendment guarantee against unreasonable
searches and seizures is at the very core of the protections needed to preserve democracy
against the excesses of government.”).
72
Through History; Searching for History, 63 U. Chi. L. Rev. 1707, 1732–43
(1996) (reviewing Cuddihy) (examining early history); Davies, 98 Mich. L.
Rev. at 559 (noting that the Supreme Court for most of the twentieth
century embraced a warrant-preference approach). Under the warrant-
preference theory, the Supreme Court emphasized the close relationship
between the Reasonableness Clause and the Warrant Clause of the Fourth
Amendment. Maclin, The Complexity of the Fourth Amendment, 77 B.U. L.
Rev. at 928. The touchstone of the Fourth Amendment was the warrant
requirement, subject to limited exceptions. Johnson, 333 U.S. at 14–15,
68 S. Ct. at 369; State v. Ingram, 914 N.W.2d 794, 804 (Iowa 2018). The
warrant-preference approach stresses that ordinarily, in order to be
“reasonable” under the Fourth Amendment, a warrant must be obtained
prior to the search or seizure. See Maclin, The Complexity of the Fourth
Amendment, 77 B.U. L. Rev. at 928 (“[T]he ‘warrant preference rule’ . . .
requires that the safeguards of the Warrant Clause define the
reasonableness of a given search or seizure.”).
In recent years, however, the United States Supreme Court has
begun to diminish search and seizure protections. The Court has departed
from its earlier precedents grounded in history and recent experience in
Europe in favor of a more expansive view of government power.
Doctrinally, the Court has generally downgraded the protections of the
Warrant Clause by significantly limiting its application and adopting an
expansive, modern-day approach to the meaning of the Reasonableness
Clause. See Ingram, 914 N.W.2d at 804–06, 816; Silas J. Wasserstrom,
The Court’s Turn Toward a General Reasonableness Interpretation of the
Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 129–30, 148 (1989).
It has now made the new discovery that the “touchstone” of analysis under
the Fourth Amendment is no longer the warrant requirement but is “the
73
reasonableness in all the circumstances of the particular governmental
invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S.
106, 108–09, 98 S. Ct. 330, 332 (1977) (quoting Terry v. Ohio, 392 U.S. 1,
19, 88 S. Ct. 1868, 1878–79 (1968)); cf. Ingram, 914 N.W.2d at 815–16
(contrasting the Supreme Court’s recent departure from the traditional
warrant-preference approach with Iowa’s continued maintenance of a
warrant preference).
The United States Supreme Court has also undermined the strength
of the exclusionary rule. Long ago, Justice Oliver Wendell Holmes declared
in Silverthorne Lumber Co. v. United States that “[t]he essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court but that it shall
not be used at all.” 251 U.S. 385, 392, 40 S. Ct. 182, 183 (1920). Yet in
United States v. Leon, the Court found a good-faith exception to the
exclusionary rule. 468 U.S. 897, 913, 104 S. Ct. 3405, 3415 (1984). In
contrast to Justice Holmes’s approach in Silverthorne Lumber, the
Supreme Court in Leon divorced the exclusionary rule from the
substantive commands of the Fourth Amendment, noting that no
provision of the Fourth Amendment expressly precludes the use of
evidence when the provision was violated. Id. at 905–06, 104 S. Ct. at
3411. The Leon Court stressed that the exclusionary rule is “a judicially
created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect.” Id. at 906, 104 S. Ct. at 3412 (quoting United
States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)).
Applying a pragmatic analysis, the Court concluded that the marginal
benefits of deterrence would be small where a law enforcement officer acts
in objective good faith in a search and seizure context. See id. at 922, 104
S. Ct. at 3420.
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2. Basis for independent state law interpretation of search and
seizure provisions. One of the opinions issued today has an affinity for
following federal precedent in search and seizure law. My views on the
constitutional history and the flaws of following United States Supreme
Court precedent in any lockstep or quasi-lockstep way have been
thoroughly explored in Short, 851 N.W.2d at 481–92, the majority and
concurring opinions in Baldon, 829 N.W.2d at 790–91 (majority opinion);
id. at 803–34 (Appel, J., specially concurring), and Ochoa, 792 N.W.2d at
264–67. I highlight only a handful of important points today.
First, the suggestion is advanced that Iowa’s constitutional history
does not support departing from Fourth Amendment jurisprudence. But
at the time of the Iowa constitutional convention, there was very little
Fourth Amendment jurisprudence. Most of that came later. What is clear,
however, is that the Iowan founding generation had no particular
reverence for the decisions of the United States Supreme Court on the
important constitutional issues of the day. Indeed, at the time of the Iowa
Constitutional Convention of 1857, and for many years prior, the United
States Supreme Court was intent on shoring up the institution of chattel
slavery through its decisions regarding the Fugitive Slave Act, culminating
in the infamous Dred Scott case. See, e.g., Dred Scott v. Sandford, 60 U.S.
(19 How.) 393, 404 (1857), superseded by constitutional amendment, U.S.
Const. amend. XIV.
For example, the fugitive slave decisions were decried at the Iowa
constitutional convention in 1857. According to George Ells, the Due
Process Clause was “violated again and again by the dominant party in the
land, which rides rough-shod oves the necks of freemen.” 1 The Debates
at 102. And Ells’s criticism extended to interpretation of the Due Process
Clause in federal courts:
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If the words “due process of law,” shall in time be recognized
by our judicial tribunals to mean what they really do
mean, . . . [t]hen, sir, that infamous Fugitive Slave Law will
become a nullity, and the American people will trample its
odious enactments in the dust.
Id. Of course, it was the United States Supreme Court that upheld the
Fugitive Slave Act against constitutional attack. See, e.g., Ableman v.
Booth, 62 U.S. (21 How.) 506, 526 (1858). Ells was not an admirer of the
jurisprudence of the United States Supreme Court and was no lockstep
guy.
When Dred Scott was rendered, there was an outpouring of scathing
criticism of the United States Supreme Court, including a resolution of
condemnation from the Iowa legislature. The Iowa legislature declared
“the case of Dred Scott, is not binding in law or conscience upon the
government or people of the United States.” Short, 851 N.W.2d at 484
(quoting 1858 Iowa Acts Res. 12, at 433). Can’t find much lockstep here.
Further, the resolution stated,
[W]e should be ungrateful to those whose care and foresight
provided for us free homes, and derelict in our duty to those
who still come after us, did we not promptly and sternly
denounce this new doctrine, which if established, degrades
the free states.
Id. (quoting 1858 Iowa Acts Res. 12, at 433). If members of this court
would have appeared at the Iowa Constitutional Convention of 1857 or the
well of the Iowa legislature during the debates about the meaning of Due
Process Clause or the Dred Scott matter and advocated the presumptive
validity of federal caselaw on the Iowa courts, they would have received
glares, not applause.
Although there was not a lot of state search and seizure law in the
early days, there is one case that showed Iowa judges were willing to use
the Iowa Constitution to protect personal liberty. This is the 1863 Polk
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County case of Webb v. Griffith. See Nathan E. Coffin, The Case of Archie
P. Webb, A Free Negro, 11 Annals of Iowa 200, 211–12 (1913) [hereinafter
Coffin]. In the Webb case, an African-American, who had received a
certificate of emancipation, was held in the Polk County jail pursuant to
Billy Haun’s Law, a statute that forbade African-American settlement in
Iowa. See id. at 202–03; see also Robert R. Dykstra, Bright Radical Star:
Black Freedom and White Supremacy on the Hawkeye Frontier 198–99
(1993). Judge John Gray held that Webb’s arrest violated the search and
seizure provision of article I, section 8 of the Iowa Constitution. Coffin, 11
Annals of Iowa at 211–12. Judge Gray declared that Webb’s arrest was
unconstitutional when the only crime charged was that he was a freeman
who settled in the state. See id. It is hard to imagine a federal court under
the tutelage of the United States Supreme Court coming to a similar
conclusion under the Fourth Amendment.
Surely it is clear beyond peradventure that the Iowa founders were
devoted to civil liberties. Iowa’s state motto—“Our liberties we prize and
our rights we will maintain”—is not just a slogan but reflects a libertarian
spirit rather than state authoritarianism. The Iowa Constitution includes
sweeping language in the inalienable rights clause of article I, section 1
based on the Virginia Declaration of Rights, incorporated by Thomas
Jefferson into the Declaration of Independence, but not embraced by
Madison in the United States Constitution because of fear such language
would provoke controversy with slave states. No such hesitation in Iowa.
Indeed, George Ells, Chairman of the Committee on the Preamble and Bill
of Rights, stated the committee wanted provisions in the Iowa Bill of Rights
that “would enlarge, and not curtail the rights of the people” and would
“put upon record every guarantee that could be legitimately placed there
in order that Iowa . . . might also have the best and most clearly defined
77
Bill of Rights.” 1 The Debates at 100. Ells further stated that “the Bill of
Rights is of more importance than all the other clauses in the Constitution
put together, because it is the foundation and written security upon which
the people rest their rights.” Id. at 103.
There is reason to think the devotion to civil liberties extended
beyond the Iowa constitutional convention. For instance, writing in
response to Judge Gray’s decision in Webb, the Burlington Hawk-Eye
declared, “The people of Iowa will thank Judge Gray for vindicating the
charter of their liberties, and throwing the shield of the law over the weak
and helpless.” Coffin, 11 Annals of Iowa at 214.
Second, on turning to our federal founders, it is worth noting that
Madison, among others, looked to the states as the primary source of the
protection of civil liberties. See Baldon, 829 N.W.2d at 808. The very
purpose of the federalist system—with sovereignty divided between the
states and the federal government—was to allow the states to protect the
liberties of the citizen. See id. Indeed, if uniformity was the goal, there
would be no states and no state constitutions. The founders’
understanding of the role of the states in protecting individual liberties
was summarized in Baldon as follows:
Overall, . . . the founders looked to the states to protect
individual liberties. At the Constitutional Convention, James
Wilson observed that the purpose of the states was “to
preserve the rights of individuals.” Similarly, in Federalist
No. 45, Madison stressed that under the Constitution, “The
powers reserved to the several States will extend to all the
objects, which, in the ordinary course of affairs, concern the
lives, liberties and properties of the people. . . .” Madison
repeated the liberty theme in Federalist No. 51 by declaring,
“In the compound republic of America, the power surrendered
by the people, is first divided between two distinct
governments. . . . Hence, a double security arises to the rights
of the people.”
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829 N.W.2d at 808 (first quoting I Records of the Federal Convention of
1787, at 356 (Max Farrand ed., 1937); and then quoting The Federalist
No. 45, at 236 (James Madison) (Garry Wills ed., 1982); and then quoting
The Federalist No. 51, at 264 (James Madison) (Garry Wills ed., 1982)).
But “[i]f we choose to follow federal precedent to bolster nationwide
conformity, we destroy the ‘double security’ designed to protect our
citizens.” Stanley G. Feldman & David L. Abney, The Double Security of
Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20
Ariz. St. L.J. 115, 117 (1988) (quoting Alderwood Assocs. v. Wash. Envtl.
Council, 635 P.2d 108, 113 (Wash. 1981) (en banc)).
Or, as has been noted by Chief Justice Cady,
Our Iowa Constitution, like other state constitutions,
was designed to be the primary defense for individual rights,
with the United States Constitution Bill of Rights serving only
as a second layer of protection, especially considering the
latter applied only to actions by the federal government for
most of our country’s history.
Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional History
Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and
Civil Liberties, 60 Drake L. Rev. 1133, 1145 (2012). It would be ironic, and
tragic, if this court surrenders its historically appointed role as a protector
of liberty and hands over the liberty keys to the United States Supreme
Court under some kind of ahistorical reverse federalism.
Third, the mere fact that the language of article I, section 8 and the
Fourth Amendment are similar does not mean that this court must bow to
federal interpretations of the Fourth Amendment in interpreting our state
constitutional counterpart. It is, of course, true that the language of article
I, section 8 and the Fourth Amendment are very similar. And this court
has sometimes said that because of the similarity of language, the
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provisions are “deemed to be identical in scope, import, and purpose.”
State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).
But the conclusory bromide is stating the obvious at a very high
degree of generality and has very little value, or even no value, in deciding
cases. Ochoa, 792 N.W.2d at 267 (noting the general language similarity
does nothing to aid us in deciding concrete cases); see also Richard M. Re,
Essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev.
1861, 1875–89 (2014) (arguing that healthy stare decisis can require
methods of narrowing broadly stated precedent in order to avoid overruling
a case when its “best reading,” i.e. the precedent as actually stated, would
require an outcome inconsistent with other legal principles). The purpose
of both provisions is to limit arbitrary conduct of law enforcement, to
generally require warrants, and to protect the rights of persons to be
secure in their persons, houses, papers, and effects. Yet we have stated,
for example, that when it comes to the exclusionary rule, article I, section
8 serves different purposes than the Fourth Amendment. State v. Cline,
617 N.W.2d 277, 289–93 (Iowa 2000) (en banc), abrogated on other
grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). In
contrast to the federal exclusionary rule, the purposes of the exclusionary
rule under article I, section 8 include protecting constitutional rights and
maintaining the integrity of the courts as well as deterrence. Id.
Indeed, on a wide range of search and seizure issues, a variety of
options are plausible under the open-textured language. Due to the
marvels of electronic research, there is a cornucopia of caselaw waiting to
be harvested by thoughtful judges looking to make the best possible
choices under their state constitutions. This court is not in any way bound
by federal precedent, or for that matter, the precedent of any other
jurisdiction. Instead, we make our own independent choices under the
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Iowa Constitution. Pals, 805 N.W.2d at 771 (endorsing the principle that
United States Supreme Court opinions provide guidance only based upon
their persuasive power); see Baldon, 829 N.W.2d at 790–91 (majority
opinion) (same); see also State v. James, 393 N.W.2d 465, 468 (Iowa 1986)
(en banc) (Lavorato, J., dissenting) (“We push aside our constitutional
responsibilities when we merely look to the Supreme Court for answers in
examining the state constitution.”).
A highly regarded jurist has nailed it in a recent piece of scholarship.
According to Judge Sutton of the United States Court of Appeals for the
Seventh Circuit,
There is no reason to think, as an interpretive matter, that
constitutional guarantees of independent sovereigns, even
guarantees with the same or similar words, must be construed
the same. Still less is there reason to think that a highly
generalized guarantee, such as a prohibition on
“unreasonable” searches, would have just one meaning for a
range of differently situated sovereigns.
Sutton, 59 U. Kan. L. Rev. at 707.
Judge Sutton’s observations are consistent with what happens on
the ground in many states. There are thousands, not hundreds, of state
search and seizure cases following a path independent of federal courts
under state constitutional provisions similar to the Fourth Amendment.
See Michael J. Gorman, Survey: State Search and Seizure Analogs, 77
Miss. L.J. 417, 418–64 (2007) (citing search and seizure departures in
almost three dozen states as of 2007).
In the past, some of our cases utilized what is called a lockstep
approach or lockstep-lite approach where federal law was either followed
as a matter of course or presumptively followed. We abandoned that
approach in Ochoa, 792 N.W.2d at 267. In Ochoa, we unanimously
declared,
81
In order to resolve any inconsistency in our prior cases
[following the lockstep or quasi-lockstep approach], we now
hold that, while United States Supreme Court cases are
entitled to respectful consideration, we will engage in
independent analysis of the content of our state search and
seizure provisions. A Fourth Amendment opinion of the
United States Supreme Court, the Eighth Circuit Court of
Appeals, or any other federal court is no more binding upon
our interpretation of article I, section 8 of the Iowa
Constitution than is a case decided by another state supreme
court under a search and seizure provision of that state’s
constitution. The degree to which we follow United States
Supreme Court precedent, or any other precedent, depends
solely upon its ability to persuade us with the reasoning of the
decision. When both federal and state constitutional claims
are raised, we may, in our discretion, choose to consider either
claim first in order to dispose of the case, or we may consider
both claims simultaneously.
Id. In short, we rejected the recently discovered and historically strange
doctrine of constitutional nationalism and, instead, declared our
allegiance to the vertical distribution of power in a federalist system just
as the federal framers intended.
Under Ochoa and subsequent cases, it is true, as suggested in one
of the court’s opinions today, divergence from federal authority is not
required or even favored. Fair enough. But what is required is our best
independent judgment by each and every one of us whose privilege it is to
serve on this court. No one would suggest that a legislator or a governor
should defer to Washington politicians. Why should a state court defer to
the United States Supreme Court if the precedent is unpersuasive?
Indeed, the United States Supreme Court has declared that “[i]t is
fundamental that state courts be left free and unfettered by us in
interpreting their state constitutions.” Minnesota v. Nat’l Tea Co., 309 U.S.
551, 557, 60 S. Ct. 676, 679 (1940). We lose our way when we fail to
embrace and apply this fundamental independence from federal law.
Fourth, it is true that our cases have departed from past precedents.
But there was a good reason for that. In the past, as noted in Ochoa, we
82
tended to follow federal precedent without much thought. 792 N.W.2d at
266. We were often a lockstep-lite jurisdiction, theoretically reserving the
right to engage in independent constitutional analysis but rarely bothering
to do so. See id. That approach was, and is, unacceptable. We should
decide state constitutional issues based on our best judgment of the
proper course, based upon all available authorities and precedents. A
prior case that simply pasted a federal approach into the North Western
Reporter without further thought is a very slender reed and not entitled to
stare decisis.
An opinion in this case suggests that our search and seizure cases
under the Iowa Constitution are generally interpreted to mirror federal law.
I beg to differ. It is clear that our caselaw, like that of many states, no
longer generally interprets the Iowa Constitution to mirror federal caselaw
in the search and seizure area. See, e.g., Ingram, 914 N.W.2d at 799; State
v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017); Gaskins, 866 N.W.2d at 6–
7; Short, 851 N.W.2d at 482–85; Baldon, 829 N.W.2d at 792–97, 802–03;
Pals, 805 N.W.2d at 771; Ochoa, 792 N.W.2d at 291; Cline, 617 N.W.2d at
293. Instead of using a mirror, in recent years we have exercised our
independent judgment in determining independent state constitutional
claims involving search and seizure. That is the teaching of Ochoa, 279
N.W.2d at 267 (explaining that the degree to which we follow federal or
other precedents depends upon their persuasive power).
And we recently have not used mirrors in other constitutional
contexts. In Puntenney v. Iowa Utilities Board, ___ N.W.2d. ___, ___ (Iowa
2019), we departed from United States Supreme Court precedent in an
eminent domain case. In Baldwin, 915 N.W.2d at 281 (majority opinion),
we developed our own independent approach to immunity for state
constitutional tort claims. And in Varnum v. Brien, 763 N.W.2d 862, 872,
83
878 n.6 (Iowa 2009), we exercised our independent judgment under the
Iowa Constitution with respect to same-sex marriage. Our recent cases do
not emphasize using a mirror for mirror’s sake but instead emphasize that
we “jealously” protect our authority to follow an independent approach.
State v. Fleming, 790 N.W.2d 560, 564 (Iowa 2010); Zaber v. City of
Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); State v. Bruegger, 773 N.W.2d
862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d
1, 6–7 (Iowa 2004).
Fifth, it must be acknowledged that the decisions of the United
States Supreme Court on individual liberties involve a federalist discount.
The most conservative justice of the Warren court, Justice John Marshall
Harlan, repeatedly cautioned that application of the Bill of Rights to the
states would lead to a dilution in the scope of federal rights. Justice
Harlan saw “a major danger of the ‘incorporation’ approach—that
provisions of the Bill of Rights may be watered down in the needless
pursuit of uniformity.” Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88
S. Ct. 1444, 1466 n.21 (1968) (Harlan, J., dissenting). In a draft opinion
not published because of his untimely death, Justice Harlan wrote that
incorporation “ ‘threaten[ed] . . . to “chill” the Sixth Amendment out of
existence’ and ‘might well spell the demise—under the inescapable
pressures of federalism—of many other provisions of the Bill of Rights.’ ”
Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren
Court 291 (1992) (alterations in original) (quoting John Marshall Harlan,
Draft Opinion to Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628 (1972),
and Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620 (1972) (on file in
the John Marshall Harlan Papers, Secley G. Mudd Manuscript Library,
Princeton University, Box 441)).
84
Justice Harlan, of course, time and time again, has been proven
correct. When looking to United States Supreme Court precedent, it is
imperative we understand that its approach to individual rights is
discounted from constitutional norms in light of federalism concerns.
Indeed, in the search and seizure areas since incorporation, the United
States Supreme Court has persistently cut back on substantive
protections while repeatedly emphasizing the ability of the states to expand
the constitutional protections under their state constitutions. See, e.g.,
California v. Greenwood, 486 U.S. 35, 41–44, 108 S. Ct. 1625, 1629–31
(1988); Michigan v. Mosley, 423 U.S. 96, 120, 96 S. Ct. 321, 334 (1975)
(Brennan, J., dissenting); Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct.
1215, 1219 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788,
791 (1967).
Sixth, it must be acknowledged that the current United States
Supreme Court is a rights-restricting court. Ever since Brown v. Board of
Education of Topeka, 347 U.S. 483, 74 S. Ct. 686 (1954), and the Southern
Manifesto, political actors have sought to move the Supreme Court in a
conservative direction that reduces the role of the courts in the protection
of civil liberties. See Reva B. Siegel, Equality Talk: Antisubordination and
Anticlassification Values in Constitutional Struggles over Brown, 117 Harv.
L. Rev. 1470, 1489 (2004). Southern strategies have been employed and
litmus tests applied. Nominees to the high court have been made,
withdrawn, hung up without a hearing, and narrowly confirmed.
In the end, there has been what nearly all observers agree is a
significant shift in the Supreme Court’s jurisprudence. And time and time
again, the Court, often over strong objections of dissenters, has whittled
away at the scope of individual liberties using innovative contemporary
documents to extend state authority. See, e.g., Samson v. California, 547
85
U.S. 843, 846, 126 S. Ct. 2193, 2196 (2006) (permitting warrantless
search of parolee); Atwater v. City of Lago Vista, 532 U.S. 318, 323, 354,
121 S. Ct. 1536, 1541, 1557 (2001) (permitting warrantless arrest and
jailing for misdemeanor violation when sanction does not include jail time);
Ohio v. Robinette, 519 U.S. 33, 35, 117 S. Ct. 417, 419 (1996) (holding that
police need not tell driver he or she is “free to go” to obtain consent to
search); Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987)
(allowing warrantless inventory searches of automobiles); Leon, 468 U.S.
at 920–25, 104 S. Ct. at 3420–22 (embracing good-faith exception to
exclusionary rule); Schneckloth v. Bustamonte, 412 U.S. 218, 235–41, 93
S. Ct. 2041, 2051–55 (1973) (abandoning knowing-and-voluntary test for
consent to search). Frankly, I have very little interest in importing whole
hog to Iowa the approach adopted by the Supreme Court in Washington,
D.C. Not only should we not incorporate the federal cases, there should
be no presumption, or special weight, given to the Supreme Court’s
precedents. We should think for ourselves.
That said, I agree with Justice McDonald that there should be no
artificial presumption that the Iowa Constitution is more protective than
federal caselaw in any given case. Instead, we should independently
examine each case, free from any predisposition, and engage in a thorough
review of plausible legal options without any artificial doctrines that block
independent thinking. In light of Justice McDonald’s opinion, it is clear
that a majority of this court continues to embrace this approach.
3. Iowa search and seizure: Embracing the warrant-preference
approach and the constitutional underpinnings of the exclusionary rule.
Our search and seizure law has followed a different path than that of the
United States Supreme Court. Early on, we emphasized that the Iowa
Constitution’s protections against unconstitutionally obtained evidence
86
were to apply “in a broad and liberal” spirit. State v. Height, 117 Iowa 650,
654–65, 91 N.W. 935, 936–40 (1902) (quoting People ex rel. Taylor v.
Forbes, 38 N.E. 303, 305 (N.Y. 1894)). We also recognized the ability of
this court to interpret our search and seizure provision independently of
federal interpretations of the United States Constitution. State v. Tonn,
195 Iowa 94, 104–08, 191 N.W. 530, 535–36 (1923), abrogated on other
grounds by State v. Hagen, 258 Iowa 196, 203–05, 137 N.W.2d 895, 899–
900 (1965), as recognized in State v. Taylor, 260 Iowa 634, 641–42, 144
N.W.2d 289, 293–94 (1966).
But, noted in Ochoa, we have at times simply adopted decisions of
the United States Supreme Court without analysis. 792 N.W.2d at 265–
66. In Cline, however, we departed from the lockstep approach by
emphasizing that “[i]f precedent is to have any value it must be based on
a convincing rationale.” 617 N.W.2d at 285 (quoting James, 393 N.W.2d
at 472). In Ochoa, we stated, “The degree to which we follow United States
Supreme Court precedent, or any other precedent, depends solely upon its
ability to persuade us with the reasoning of the decision.” 792 N.W.2d at
267. While we recognized that in the past we have been inconsistent in
our willingness to engage in independent state constitutional
interpretation, we held in Ochoa,
In order to resolve any inconsistency in our prior cases,
we now hold that, while United States Supreme Court cases
are entitled to respectful consideration, we will engage in
independent analysis of the content of our state search and
seizure provisions.
Id.; see also Short, 851 N.W.2d at 481–92 (outlining principles of
independent state constitutional jurisprudence).
Under our current caselaw, we have departed from the United States
Supreme Court in two fundamental ways. First, as noted in Ingram, our
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recent cases have embraced a strong warrant-preference interpretation of
article I, section 8. 914 N.W.2d at 816; see Gaskins, 866 N.W.2d at 7 (“ ‘A
warrantless search is presumed unreasonable’ unless an exception
applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997)));
Short, 851 N.W.2d at 502 (“[W]e have little interest in allowing the
reasonableness clause to be a generalized trump card to override the
warrant clause in the context of home searches and reject the cases
suggesting otherwise.”); Baldon, 829 N.W.2d at 791 (“It is well-settled that
warrantless searches are virtually ‘per se unreasonable . . . .’ ” (quoting
Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043)); Ochoa, 792 N.W.2d at
269 (“[T]he Reasonableness Clause cannot be used to override the Warrant
Clause.”). Our approach does not mean that warrantless searches are
always invalid, particularly when it is impractical to obtain a warrant and
an exigency is present, but it insists that a warrant based on probable
cause issued by a neutral magistrate is required in most circumstances
and that exceptions to the warrant requirement be narrowly construed.
See, e.g., Ochoa, 792 N.W.2d at 285 (“[W]arrantless searches and seizures
that d[o] not fall within one of the ‘jealously and carefully drawn
exceptions’ are unreasonable.” (quoting State v. Strong, 493 N.W.2d 834,
836 (Iowa 1992))); State v. McGrane, 733 N.W.2d 671, 677 (Iowa 2007)
(“The search-incident-to-arrest exception to the warrant requirement must
be narrowly construed and limited to accommodating only those interests
it was created to serve.”).
Second, in Cline, we rejected the narrow, pragmatic approach of
Leon, which viewed the exclusionary rule as simply a judicially created
remedy. 617 N.W.2d at 293; see Leon, 468 U.S. at 906, 104 S. Ct. at 3412.
We emphasized that Iowa was one of the first states to exclude evidence
“as an integral part of its state constitution’s protection against
88
unreasonable searches and seizures.” Cline, 617 N.W.2d at 285. We noted
that the United States Supreme Court originally took a similar position in
cases such as Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341,
346 (1914), overruled on other grounds by Mapp, 367 U.S. at 654–57, 81
S. Ct. at 1691–92. Cline, 617 N.W.2d at 283, 285. We also noted that the
United States Supreme Court had recently distanced itself from its early
cases. Id. at 284. We declined to drift away from what we viewed as the
substantive constitutional protections afforded by the exclusionary rule.
Id. at 292–93.
In support of our position in Cline, we quoted the familiar language
of Height, which declared that the “guaranty [of article I, section 8 of the
Iowa Constitution] . . . has . . . received a broad and liberal interpretation
for the purpose of preserving the spirit of constitutional liberty.” Id. at 285
(quoting Height, 117 Iowa at 661, 91 N.W. at 938). We further quoted with
approval language from State v. Sheridan, where we noted that to hold
evidence obtained in violation of article I, section 8 could be admitted
would “emasculate the constitutional guaranty, and deprive it of all
beneficial force or effect.” Id. at 286 (emphasis omitted) (quoting State v.
Sheridan, 121 Iowa 164, 168, 96 N.W. 730, 731 (1903)). We rejected the
United States Supreme Court’s view that the purpose of the exclusionary
rule was to deter misconduct, noting that the exclusionary rule was
originally justified as a remedy for constitutional violations and to preserve
judicial integrity. Id. at 289.
Cline thus represents a substantial departure from United States
Supreme Court precedent in the interpretation of constitutional search
and seizure provisions. It rejected pragmatic calculations of the Court and
recognized the exclusion of unconstitutionally obtained evidence in
“preserving the spirit of constitutional liberty.” Id. at 285 (quoting Height,
89
117 Iowa at 661, 91 N.W. at 938). Cline is thus consistent with the
skeptical attitude toward government power embraced by the generations
that adopted the Fourth Amendment and article I, section 8 of the Iowa
Constitution.
Because of our insistence on emphasizing the preference for
warrants under article I, section 8 and our conclusion that the substantive
search and seizure provisions of the Iowa Constitution require the
exclusion of evidence obtained in violation of the constitutional
commands, our Iowa framework for search and seizure questions is
different from the more recent innovations introduced by the United States
Supreme Court in its search and seizure cases.
C. Application of Search and Seizure Doctrine to Automobiles.
1. Federal approach: Shrinking protection. With the advent of the
automobile, questions arose regarding the application of search and
seizure protections to vehicles on public highways. In Carroll v. United
States, 267 U.S. 132, 134–36, 45 S. Ct. 280, 281 (1925), government
agents engaged in a warrantless search and seizure of an automobile
believed to be engaged in illegal bootlegging. The Carroll Court compared
an automobile to a vessel at sea, concluding that it would be impracticable
to obtain a warrant in light of the mobile character of the vehicle. Id. at
151–53, 45 S. Ct. at 284–85. The Carroll Court recognized that “[i]t would
be intolerable and unreasonable if a prohibition agent were authorized to
stop every automobile on the chance of finding liquor.” Id. at 153–54, 45
S. Ct. at 285. The Carroll Court reasoned, however, that if there was
probable cause that the vehicle was “carrying contraband or illegal
merchandise,” the stop would be lawful even without a warrant. Id. at
154, 45 S. Ct. at 285.
90
In a sharp dissent in Carroll, Justice McReynolds found that only
mere suspicion and not probable cause supported the warrantless action
of the government agents in the case. Id. at 163, 45 S. Ct. at 289
(McReynolds, J., dissenting). He observed that “[t]he damnable character
of the ‘bootlegger’s’ business should not close our eyes to the mischief
which will surely follow any attempt to destroy it by unwarranted
methods.” Id. at 163, 45 S. Ct. at 288. In short, for Justice McReynolds,
the important ends demanded by current exigency did not justify the use
of unconstitutional means.
Almost fifty years later, the Supreme Court decided Chambers v.
Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970). In Chambers, the Court
considered whether a Fourth Amendment violation arose when an
automobile was thoroughly searched after it was taken to the police
station. Id. at 43, 90 S. Ct. at 1977. The Chambers Court ruled that
because there was probable cause to support a warrantless search at the
time the vehicle was stopped, that probable cause also supported the
subsequent warrantless search of the vehicle even though the automobile,
at that point, was no longer mobile. Id. at 52, 90 S. Ct. at 1981–82.
Permitting a warrantless search of a seized automobile was a striking
development because the basis of the automobile exception in Carroll was
the mobility of the vehicle. See Carroll, 267 U.S. at 153, 45 S. Ct. at 285
(majority opinion).
Yet the Supreme Court has also at times expressed concern about
search and seizure involving automobiles. For example, Justice Jackson
declared, “I am convinced that there are, many unlawful searches of . . .
automobiles of innocent people which turn up nothing incriminating, in
which no arrest is made, about which courts do nothing, and about which
we never hear.” Brinegar, 338 U.S. at 181, 69 S. Ct. at 1313. In this
91
observation, Justice Jackson recognized that the real beneficiary of
enforcement of the Fourth Amendment is not the guilty party before the
court but rather the innocent public generally, which the Fourth
Amendment protects from arbitrary search and seizure. In addition, the
Supreme Court has emphasized that “[t]he word ‘automobile’ is not a
talisman in whose presence the Fourth Amendment fades away and
disappears.” Coolidge, 403 U.S. at 461, 91 S. Ct. at 2035.
And the Supreme Court concluded that a traffic stop, even for a brief
period, constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653, 99
S. Ct. 1391, 1396 (1979). In Prouse, the Court considered the
constitutionality of a random stop when there was no reasonable suspicion
that any violation occurred. Id. at 650, 99 S. Ct. at 1394. The Prouse
Court noted that an automobile stop is not a minor inconvenience,
stressing that the automobile is one of the most visible symbols of our
liberty. See id. at 657, 662, 99 S. Ct. at 1398, 1400–01. According to the
Prouse Court, “[P]eople are not shorn of all Fourth Amendment protection
when they step from their homes onto the public sidewalks” or “from the
sidewalks into their automobiles.” Id. at 663, 99 S. Ct. at 1401. The
Supreme Court held the “kind of standardless and unconstrained
discretion” presented in the case is not permitted under the Fourth
Amendment. Id. at 661, 99 S. Ct. at 1400.
Beginning in the mid-1970s, however, the Supreme Court embarked
on an aggressive course designed to trim back more robust search and
seizure protections of automobiles. In a series of cases, the Supreme Court
held that the warrant requirement of the Fourth Amendment did not apply
to automobiles in a variety of settings. See, e.g., Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444, 447, 110 S. Ct. 2481, 2483 (1990); Bertine, 479 U.S.
92
at 368–69, 107 S. Ct. at 739–40; South Dakota v. Opperman, 428 U.S. 364,
375–76, 96 S. Ct. 3092, 3100 (1976).
These cases established an important backdrop to the Whren
Court’s rejection of control of pretextual stops. 517 U.S. at 819, 116 S. Ct.
at 1777. When a warrant is obtained, of course, the state must make a
particularized showing of probable cause and the purpose and scope of a
search is limited by the magistrate. A warrantless search, however,
contains no such restraints. The combination of the lack of a warrant
requirement in the automobile context and the tolerance of pretextual
searches in Whren presents a clear path for unregulated, arbitrary police
conduct.
And developments in Supreme Court caselaw after Whren further
increased the dangers of unregulated police searches and seizures
involving automobiles. In the case of Atwater, 532 U.S. at 323, 354, 121
S. Ct. at 1541, 1557, the Supreme Court held that a driver of an
automobile could be subject to a full custodial arrest for a minor traffic
infraction even if incarceration was not a permissible sanction for the
offense. Thus, the driver of a vehicle stopped pretextually for a minor
traffic offense is, according to the Atwater majority, subject to a full
custodial arrest and the resulting impoundment of the vehicle even if the
sanctions for the minor traffic violation do not include incarceration. Id.
That impoundment, in turn, could be the basis for a warrantless search
at the police station. See Chambers, 399 U.S. at 52, 90 S. Ct. at 1981–82.
The end result of the confluence of these United States Supreme Court
cases is that persons pretextually stopped for minor traffic violations may
be subject to a full custodial arrest, an impounded vehicle, and a
warrantless search of the impounded vehicle without offending the Fourth
Amendment.
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And there is one more twist. In Heien v. North Carolina, 574 U.S.
54, ___, 135 S. Ct. 530, 534 (2014), the Supreme Court held that an
officer’s mistake of law can still provide sufficient reasonable suspicion to
engage in a warrantless stop if the mistake is reasonable. Thus, the
officer’s stop of a vehicle with one brake light out did not violate the Fourth
Amendment even though the underlying regulation required only a single
working brake light. Id. As a result, under the Supreme Court cases, a
warrantless pretextual stop based upon a mistaken belief that a minor
traffic law was violated may lead to a full custodial arrest, subsequent
impoundment of the vehicle, and a warrantless search of the vehicle
without offending the Fourth Amendment.
2. Approaches under state law: Independence. The Supreme
Court’s determination to cut back on robust interpretation of search and
seizure law under the Fourth Amendment was not universally admired in
state courts. Indeed, on several notable occasions, when the United States
Supreme Court reversed state supreme court rulings providing Fourth
Amendment protection in the context of automobiles, the state supreme
courts on remand followed their prior approaches on state constitutional
grounds. For instance, after the United States Supreme Court upheld a
roadblock-type seizure in Sitz, 496 U.S. at 447, 110 S. Ct. at 2483, the
Michigan Supreme Court on remand declined to follow the Supreme Court
in its interpretation of the Michigan Constitution. See Sitz v. Dep’t of State
Police, 506 N.W.2d 209, 224–25 (Mich. 1993). Similarly, the South Dakota
Supreme Court declined to follow the lead of the United States Supreme
Court on remand after Opperman, 428 U.S. at 375–76, 96 S. Ct. at 3100,
where the Court upheld a warrantless inventory search. State v.
Opperman, 247 N.W.2d 673, 674–75 (S.D. 1976).
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There are many other occasions where state supreme courts have
declined to follow federal precedents in the interpretation of state
constitutions. For example, the New Hampshire Supreme Court rejected
the automobile exception in State v. Sterndale, 656 A.2d 409, 411–12 (N.H.
1995), abrogated in part on other grounds by State v. Goss, 834 A.2d 316,
318–19 (N.H. 2003), as recognized in State v. Cora, 167 A.3d 633, 641–42
(N.H. 2017), the Minnesota Supreme Court rejected Atwater in State v.
Askerooth, 681 N.W.2d 353, 361–63 (Minn. 2004) (en banc), the New
Jersey Supreme Court rejected application of Schneckloth to an automobile
stop in State v. Carty, 790 A.2d 903, 907, 912–14, modified on other
grounds, 806 A.2d 798, 798 (N.J. 2002), and the Alaska Supreme Court
imposed greater limitations on inventory searches in State v. Daniel, 589
P.2d 408, 416 (Alaska 1979).
3. Iowa approach: Resilience. In recent years, we have been
increasingly concerned with the expansive reach of federal law in the
search and seizure of automobiles. We have limited the reach of
government power in the automobile context in a series of cases by relying
on article I, section 8 of the Iowa Constitution. Thus, while the United
States Supreme Court has trimmed back its search and seizure
protections in the automobile context, we have generally held firm.
For instance, in State v. Tague, 676 N.W.2d 197, 205–06 (Iowa
2004), we confronted the question of whether an automobile stop may be
based upon momentarily crossing the edge line of a road. We held that on
the facts presented, the police lacked probable cause or reasonable
suspicion to stop the vehicle. Id. Notably, we based our decision on article
I, section 8 of the Iowa Constitution and not on the Fourth Amendment.
Id. at 206.
95
A few years later, in Vance, 790 N.W.2d at 786, we considered
whether counsel was ineffective for failure to consider whether the holding
in New York v. Belton, 453 U.S. 454, 460–61, 101 S. Ct. 2860, 2864 (1981),
overruled in part by Arizona v. Gant, 556 U.S. 332, 350–51, 129 S. Ct.
1710, 1723 (2009), remained good law under the Iowa Constitution. The
thrust of our Vance opinion strongly suggested that it would be ineffective
assistance to not launch an independent challenge under article I, section
8 of the Iowa Constitution. 790 N.W.2d at 789–90. But because it was
possible that counsel did not raise the issue of Belton’s vitality under the
Iowa Constitution because of a reasonable belief that another exception to
the warrant requirement might be present, we denied relief on direct
appeal. Id. at 790.
Next, in Pals, 805 N.W.2d at 770–71, we explored the validity of a
consent search in the context of an automobile stop under article I, section
8 of the Iowa Constitution. At the outset, we observed that the proper
scope of police authority in cases involving minor traffic infractions had
been the subject of controversy. Id. at 772. We specifically noted claims
of racial profiling and that a number of consent decrees had been entered
to provide a framework for limiting the exercise of police authority in traffic
stops. Id. at 772–73 & nn.2–9. We noted that at least one Iowa jurisdiction
had entered into a consent decree related to alleged racial profiling in
traffic stops. Id. at 773 & n.9.
In Pals, we also noted criticism of the Schneckloth test for consent
both because of its failure to require a knowing and voluntary waiver of
rights and in the lack of stringent application. Id. at 779–82. In Pals, we
reserved for another day the question of whether Iowa should require
knowing and voluntary waiver of constitutional rights in the context of
automobile searches. Id. at 782. Instead, we applied the multi-factored
96
Schneckloth test in a stringent fashion, emphasizing that the officer in the
case had exercised authority over the driver through a pat-down search,
that Pals was detained in the police vehicle at the time of consent, that
Pals was not told he was free to leave or that he could voluntarily refuse
consent without any retaliation by police, and that he was not advised that
police had concluded their business. Id. at 782–83. We held that the
consent in the case was invalid under article I, section 8 of the Iowa
constitution. Id. at 783.
In State v. Tyler, 830 N.W.2d 288, 293–96 (Iowa 2013), we
considered whether a search could be valid where the officer made a
mistake of law in believing he had probable cause to seize a vehicle. We
held that when a mistake of law was the sole justification of the stop, the
evidence gathered pursuant to the stop was invalid. Id. at 294, 296, 298.
In Tyler, we came to our approach under both the Iowa and Federal
Constitutions. Id. at 298. The United States Supreme Court has since
held that suppression is not required if a stop is made for a reasonable
mistake of law. Heien, 574 U.S. at ___, 135 S. Ct. at 534. While the
Supreme Court has declined to follow the approach in Tyler under the
Fourth Amendment, the holding of Tyler under article I, section 8 of the
Iowa Constitution remains good law. Coleman, 890 N.W.2d at 298 n.2 (“Of
course, the ruling in Tyler under the Iowa Constitution is unaffected by
Heien.”). Although the Tyler case had discriminatory overtones of race and
place, it was not necessary to address any issue of pretext. 830 N.W.2d at
297 & n.4; see I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-
C.L. L. Rev. 43, 65–66 (2009) (noting policing may depend upon whether
members of a race are deemed to be in the right place).
Our next recent automobile case is Gaskins, 866 N.W.2d 1. In
Gaskins, we considered the scope of a search incident to arrest in the
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context of an automobile stop for an expired license plate. Id. at 3. After
the stop, police smelled marijuana and confiscated a marijuana blunt from
the motorist. Id. The motorist and a passenger were arrested and placed
in a police car. Id. Police then searched a safe in the car without first
obtaining a warrant. Id.
We concluded that the search of the safe was not a valid search
incident to arrest. Id. In doing so, we considered whether to continue
following the approach of the United States Supreme Court in Belton, 453
U.S. 454, 101 S. Ct. 2860. Gaskins, 866 N.W.2d at 8–10. In Belton, the
Supreme Court ruled that once the driver of an automobile was arrested,
police could engage in a warrantless search of the entire passenger
compartment of the vehicle, including searching any containers found
within the passenger compartment, without violating the Fourth
Amendment. See 453 U.S. at 460, 101 S. Ct. at 2864. Belton thus stood
for the doubtful proposition that a search of the interior compartment of
an automobile was justified as a search incident to arrest even though the
driver and passengers were not physically capable of retrieving a weapon
or destroying contraband or evidence.
In Gaskins, we chose to reject the Belton approach under the Iowa
Constitution. 866 N.W.2d at 12. We noted, among other things, that
Belton had been subject to searing criticism, citing courts and scholars
who declared that “[t]he drumbeat of scholarly opposition to Belton has
remained constant,” that “[t]here is good reason to be critical of the Court’s
work in Belton,” and that “[c]riticism of Belton has been vigorous and
sustained.” Id. at 9 (first quoting State v. Eckel, 888 A.2d 1266, 1272–73
(N.J. 2006); and then quoting Wayne R. LaFave, The Fourth Amendment in
an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt.
L. Rev. 307, 332 (1982); and then quoting Eugene L. Shapiro, New York v.
98
Belton and State Constitutional Doctrine, 105 W. Va. L. Rev. 131, 137
(2002)). We also noted that members of the United States Supreme Court
after Belton had expressed reservations about its scope and that the
Supreme Court itself had limited Belton’s reach. Id. at 9–10; see Gant, 556
U.S. at 350–51, 129 S. Ct. at 1723–24; Thornton v. United States, 541 U.S.
615, 624, 124 S. Ct. 2127, 2133 (2004) (O’Connor, J., concurring in part);
id. at 626–29, 124 S. Ct. at 2134–35 (Scalia, J., concurring in the
judgment).
In analyzing the case, we recognized that we had adopted Belton in
a lockstep fashion in State v. Sanders, 312 N.W.2d 534, 539 (Iowa 1981).
See Gaskins, 866 N.W.2d at 9. We noted, however, that New Jersey,
Washington, New Hampshire, and other states had declined to adopt
Belton under their state constitutions. Id. at 11–12. After canvassing the
authorities, we concluded that we could no longer follow Belton. Id. at 12.
We reasoned that when the driver and the passenger were secured in the
police car, nothing within the vehicle posed a threat to the officers and
there was no possibility that the driver and passenger could destroy
evidence in the backseat of the vehicle. Id. at 14. In short, the scope of
the Belton rule far exceeded its justification under the facts presented in
Gaskins. See id. at 14. We overruled Sanders as we no longer believed
Belton provided the proper scope of searches incident to arrest under
article I, section 8 of the Iowa Constitution. Id. at 16.
We returned to another automobile search in Coleman, 890 N.W.2d
at 285. In Coleman, we considered whether an automobile stop could be
extended to require production of a driver’s license or registration after the
underlying basis for the stop had been resolved. Id. After surveying federal
and state court authorities, we concluded that under article I, section 8 of
the Iowa Constitution, the traffic stop could not be extended so that the
99
officer could request papers from the driver after the original basis for the
stop had been resolved. Id. at 299–301. We emphasized that “cabining
official discretion to conduct searches is designed to prevent arbitrary use
of police power.” Id. at 299. We noted that our recent cases “evinced an
awareness of the potential for arbitrary government action on the state’s
roads and highways.” Id. at 300. We noted that in Pals and Tyler, “we put
traffic stops in the larger context of concerns surrounding racial profiling.”
Id.
In State v. Storm, 898 N.W.2d 140, 141 (Iowa 2017), we considered
whether it was time to do away entirely with the automobile exception to
the warrant requirement. Although three members of the court were
prepared to abandon the rule, see id. at 157–58 (Hecht, J., dissenting)
(joined by Justices Wiggins and Appel), a majority of the court declined to
do so, id. at 142 (majority opinion).
In his special concurrence, however, Chief Justice Cady emphasized
that on the record developed in the case, the defendant had not shown
that technological developments rendered the automobile exception
obsolete. Id. at 157 (Cady, C.J., concurring specially). Thus, Chief Justice
Cady regarded the result as fact intensive and implied that when adequate
technology is available, a warrant may be required to support a search of
an automobile. Id. Chief Justice Cady stated that he remained “convinced
the automobile exception has a limited lifespan” but concluded that its
longevity depended on the ability of the state to integrate and use
technological developments that would make the categorical rule
unreasonable. Id.
Last, we considered the proper approach to warrantless inventory
searches pursuant to automobile stops in Ingram, 914 N.W.2d at 797. In
Ingram, we used a method of analysis similar to that in Gaskins, exploring
100
the validity of the stated rationale for warrantless inventory searches and
canvassing applicable state and federal authorities. See id. at 801–12. We
observed, among other things, that the Supreme Court’s approach to
warrantless inventory search and seizure caselaw was highly contested.
Id. at 805. Yet we recognized that thirty-five years before Ingram, we held
in State v. Roth, 305 N.W.2d 501, 507–08 (Iowa 1981) (en banc), that a
closed container—such as a paper bag, but not a purse, suitcase, or
briefcase—could be opened as part of an inventory search of a seized
automobile. Ingram, 914 N.W.2d at 813. The container in Ingram involved
a bag with a drawstring. See id. at 798.
Nonetheless, we concluded in Ingram that the time had come to
depart from federal precedent in our inventory search doctrine under
article I, section 8 of the Iowa Constitution. Id. at 820–21. We also noted
the powerful intersection of Whren, Atwater, and Bertine to provide law
enforcement with “virtually unlimited discretion to stop arbitrarily
whomever they choose, arrest the driver for a minor offense that might not
even be subject to jail penalties, and then obtain a broad inventory search
of the vehicle—all without a warrant.” Id. at 814. We observed that “[a]n
essentially unregulated legal framework allowing wide police discretion in
stopping, arresting, and conducting warrantless inventory searches of the
driver’s automobile amounts to a general warrant regime that is anathema
to search and seizure law.” Id. at 815. We rejected the approach of the
United States Supreme Court in downgrading and demoting the warrant
clause in favor of a general, free-floating reasonableness standard in its
search and seizure law. Id. at 815–16. We reiterated that our recent cases
embrace “a strong warrant preference interpretation of article I, section 8.”
Id. at 816.
101
4. Summary. While the United States Supreme Court has engaged
in a dramatic reduction of search and seizure protections in the
automobile context, the trend in our law has been in the opposite direction.
Unlike the recent innovative search and seizure decisions of the United
States Supreme Court, this court has insisted on our traditional strong
preference for search warrants even in the automobile context. In
particular, we have been careful to ensure that our law does not permit
law enforcement to operate with what amounts to the equivalent of a
general warrant and expose large segments of the population to search
and seizure without a particularized showing of the basis for the intrusion
on liberty.
V. The Constitutionality of Searches Based on Pretext.
A. Overview of Pretextual Searches. In the earliest court cases,
pretextual searches appear to have been disfavored in the few cases that
addressed the issue. In the 1960s, “the Kerner Commission identified
[pretextual stops] as racially discriminatory and a key trigger of the urban
riots” of the decade. Charles R. Epp et al., Pulled Over: How Police Stops
Define Race and Citizenship 27, 31 (2014) [hereinafter Epp et al.].
With the commencement of the “war on drugs” in the early 1980s,
pretextual searches made something of a comeback. For instance, the
Drug Enforcement Administration embarked on a cooperative, state–
federal program, called Operation Pipeline, that was intended to halt the
flow of drugs on interstate highways through traffic stops designed to allow
officers to investigate whether the drivers were involved in drug trafficking.
Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much
“Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844
& n.8 (2004) [hereinafter LaFave, “Routine Traffic Stop”]. Then, in 1996,
in Whren, the Supreme Court gave the practice a major boost by declaring
102
that any stop for a traffic violation based on probable cause was immune
from Fourth Amendment review regardless of the motivation for the stop.
Whren, 517 U.S. at 811–16, 116 S. Ct. at 1773–76. Many state courts that
had previously condemned pretextual searches reversed course under the
glare of Supreme Court precedent. See, e.g., Gama v. State, 920 P.2d
1010, 1012–13 (Nev. 1996) (per curiam); People v. Robinson, 767 N.E.2d
638, 640 (N.Y. 2001). While the Kerner Commission in 1968 decried
pretextual search and seizure practice, the Supreme Court in Whren gave
it a Fourth Amendment license.
The potential abuses arising from pretextual investigative traffic
stops were apparent at the time of Whren. See, e.g., United States v.
Harvey, 16 F.3d 109, 110 (6th Cir. 1994) (“The officers stopped the vehicle
for speeding and equipment violations and because, as one officer later
testified at the suppression hearing, ‘[t]he vehicle that I observed with the
defective equipment was very similar in appearance and profile to several
other vehicles that I have stopped which ultimately ended in arrests of
drug traffickers.’ ” (Alteration in original.)); id. at 113 (Keith, C.J.,
dissenting) (noting that the police officer testified that the basis or part of
the basis for the stop was that “[t]here were three young black male
occupants in an old vehicle”); State v. Arroyo, 796 P.2d 684, 688 n.3 (Utah
1990) (“As a result [of] Trooper Mangelson’s training . . . whenever he
observed an Hispanic individual driving a vehicle he wanted to stop the
vehicle.”). Both Harvey and Arroyo involved traffic stops of racial
minorities.
Events after Whren have put the issue into even sharper relief. In
the more than twenty years since Whren, many studies have found that
African-Americans and other minorities are disproportionately subject to
police seizures. See, e.g., Frank R. Baumgartner et al., Racial Disparities
103
in Traffic Stop Outcomes, 9 Duke F. for L. & Soc. Change 21, 24–26 (2017)
[hereinafter Baumgartner et al., Racial Disparities in Traffic Stop Outcomes]
(noting ubiquity of substantial racial disparities stemming from traffic
stops in each of the sixteen states with available data, including Missouri,
Nebraska, and Illinois); Ronnie A. Dunn, Racial Profiling: A Persistent Civil
Rights Challenge Even in the Twenty-First Century, 66 Case W. Res. L. Rev.
957, 986 (2016) [hereinafter Dunn] (discussing study showing racial
disparities in traffic stops in Ohio communities); Samuel R. Gross &
Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on
the Highway, 101 Mich. L. Rev. 651, 660 (2002) [hereinafter Gross &
Barnes] (finding Maryland state troopers discriminate against African-
American and Hispanic motorists at every stage of encounter, from initial
stop to final search); Mary N. Beall, Article, Gutting the Fourth Amendment:
Judicial Complicity in Racial Profiling and the Real-Life Implications, 36 Law
& Ineq. 145, 149 & n.27 (2018) [hereinafter Beall] (summarizing studies in
North Carolina and Detroit showing racial disproportionality in traffic
stops).
Finally, anecdotal evidence of what has become known as “driving
while black” continues to accumulate. When Dr. Martin Luther King Jr.
was arrested on January 26, 1956, in Montgomery, Alabama, for driving
thirty miles per hour in a zone with a speed limit of twenty-five miles per
hour, no one seriously believed that King was arrested to protect the
traveling public. See Randall Kennedy, Martin Luther King’s Constitution:
A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999, 1028
(1989). Other negative experiences with traffic stops have been reported
by sports stars Marcus Allen and Joe Morgan, prominent attorneys
Johnnie Cochran and Christopher Darden, actors Wesley Snipes and Will
Smith, politician and lawyer Deval Patrick, and federal judge Filemon Vela.
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See David A. Harris, The Stories, the Statistics, and the Law: Why “Driving
While Black” Matters, 84 Minn. L. Rev. 265, 265, 275 (1999); Lupe S.
Salinas & Fernando Colon-Navarro, Racial Profiling as a Means of
Thwarting the Alleged Latino Security Threat, 37 T. Marshall L. Rev. 5, 11
n.36, 41 (2011); David A. Sklansky, Traffic Stops, Minority Motorists, and
the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 312 n.196
[hereinafter Sklansky]; Juan R. Torruella, Déjà vu: A Federal Judge
Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167,
190 n.136 (2011) [hereinafter Torruella]. As noted by Representative John
Conyers, “[T]here are virtually no African-American males—including
Congressmen, actors, athletes, and office workers—who have not been
stopped at one time or another for an alleged traffic violation, namely
driving while black.” Sklansky, 1997 Sup. Ct. Rev. at 312 n.196 (quoting
143 Cong. Rec. E10 (daily ed. Jan. 7, 1997) (remarks of Rep. Conyers)).
B. Approaches to Pretext Prior to Whren.
1. Approaches to pretextual investigative searches in United States
Supreme Court cases prior to Whren. Prior to Whren, the United States
Supreme Court in several cases indicated that pretextual searches were
likely to be unlawful under the Fourth Amendment. For example, in
United States v. Lefkowitz, the Supreme Court considered whether the
Fourth Amendment was violated where law enforcement conducted a
thorough search of a premises solely armed with an arrest warrant. 285
U.S. 452, 463, 52 S. Ct. 420, 423 (1932), abrogated in part by Harris v.
United States, 331 U.S. 145, 153, 67 S. Ct. 1098, 1102 (1947), overruled
in part by Chimel, 395 U.S. at 768, 89 S. Ct. at 2042–43. The Lefkowitz
Court said yes. Id. at 467, 52 S. Ct. at 424. In clear terms, the Lefkowitz
Court declared, “An arrest may not be used as a pretext to search for
evidence.” Id.
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Similarly, in Abel v. United States, the Supreme Court considered
the use of an administrative warrant to gather evidence of espionage. 362
U.S. 217, 218–19, 80 S. Ct. 683, 686–87 (1960). In Abel, immigration
officers obtained an administrative arrest warrant to seize Abel on the
ground that he was violating immigration law. Id. at 221–22, 80 S. Ct. at
688. The FBI, who had an interest in Abel regarding potential espionage,
accompanied the immigration officials to Abel’s hotel to arrest him. Id. at
221–22, 80 S. Ct. at 688–89. Ultimately, the government obtained a
number of documents tending to incriminate Abel on conspiracy to commit
espionage. Id. at 224–25, 80 S. Ct. at 689–90. Abel sought to suppress
the evidence on the ground that the immigration arrest effort was
pretextual and designed in fact to allow the FBI to discover incriminating
evidence without a warrant. Id. at 225–26, 80 S. Ct. at 690.
The Supreme Court rejected the claim based on the facts of the case.
Id. at 226–30, 80 S. Ct. at 690–92. The Abel Court found that the arrest
was not conducted in bad faith and was not pretextual in nature. Id. The
Supreme Court noted, however, “Were this claim [of pretext] justified by
the record, it would indeed reveal a serious misconduct by law-enforcing
officers.” Id. at 226, 80 S. Ct. at 690. The Supreme Court stated that the
test for pretext was “whether the decision to proceed administratively
toward deportation was influenced by, and was carried out for, a purpose
of amassing evidence in the prosecution for crime.” Id. at 230, 80 S. Ct.
at 692. The Abel Court emphasized, however, that administrative searches
conducted pursuant to standardized procedures should not be considered
pretextual. See id. at 229, 80 S. Ct. at 692.
After Lefkowitz and Abel, a number of United States Supreme Court
cases suggested that pretextual searches would raise serious
constitutional problems. For instance, in Steagald v. United States, 451
106
U.S. 204, 205–07, 101 S. Ct. 1642, 1644–45 (1981), the Supreme Court
considered a case where police armed with an arrest warrant entered a
home and discovered drugs and other evidence. The defendant moved to
suppress the drug-related evidence on grounds of pretext, arguing that it
was illegally obtained because the agents had failed to secure a search
warrant before entering the home. Id. at 207, 101 S. Ct. at 1645. The
Supreme Court agreed, holding that an arrest warrant may not serve as
“the pretext for entering a home in which the police have a suspicion, but
not probable cause to believe, that illegal activity is taking place.” Id. at
215, 101 S. Ct. at 1649.
And in several cases upholding searches, the Supreme Court
emphasized the lack of evidence showing that the searches were
pretextual. For example, in Colorado v. Bannister, 449 U.S. 1, 4 n.4, 101
S. Ct. 42, 44 n.4 (1980) (per curiam), the Supreme Court stressed, “There
was no evidence whatsoever that the officer’s presence to issue a traffic
citation was a pretext to confirm any other previous suspicion about the
occupants.” Similarly, in Florida v. Wells, 495 U.S. 1, 2–3, 110 S. Ct. 1632,
1634 (1990), the Supreme Court considered whether incriminating
evidence obtained in an inventory search should be suppressed. The
Court declined to suppress the evidence but noted, “[A]n inventory search
must not be a ruse for a general rummaging in order to discover
incriminating evidence.” Id. at 4, 110 S. Ct. at 1635. Further, in Bertine,
479 U.S. at 372, 107 S. Ct. at 741, the Supreme Court declined to
suppress the evidence obtained in an administrative search but observed
that the defendant made “no showing that the police . . . acted in bad
faith.”
Finally, in New York v. Burger, 482 U.S. 691, 693, 107 S. Ct. 2636,
2639 (1987), the Court reviewed a state statute authorizing a warrantless
107
search of an automobile junkyard. One question presented in the case
was
whether an otherwise proper administrative inspection is
unconstitutional because the ultimate purpose of the
regulatory statute pursuant to which the search is done—the
deterrence of criminal behavior—is the same as that of penal
laws, with the result that the inspection may disclose
violations not only of the regulatory statute but also of the
penal statutes.
Id. The Court disagreed with the New York Court of Appeals that the
administrative goal was pretextual because “a State can address a major
social problem both by way of an administrative scheme and through penal
sanctions.” Id. at 712, 107 S. Ct. at 2649. The Court also explained that
the legislative history to the statute revealed proper regulatory purposes
for the administrative scheme. Id. at 716 n.27, 107 S. Ct. at 2651 n.27.
Justice Brennan, joined by Justice Marshall, dissented finding that the
pretextual nature of the administrative scheme was illustrated by the fact
that police officers copied serial numbers from a wheelchair and a walker,
objects that were in no way relevant to the automobile-related
administrative scheme. Id. at 725 & n.12, 107 S. Ct. at 2656 & n.12
(Brennan, J., dissenting).
The Lefkowitz–Abel line of cases made sense, particularly during the
years when the Supreme Court embraced a strong warrant-preference
approach to the Fourth Amendment. Yet there were also cases that
suggested that drawing the line at pretextual searches might not hold in
light of pragmatic considerations embraced by some members of the
Court.
For example, in Massachusetts v. Painten, 389 U.S. 560, 561, 88
S. Ct. 660, 661 (1968) (per curiam), the United States Supreme Court in a
per curiam decision dismissed a petition for certiorari as improvidently
108
granted in a case involving an alleged pretextual search because the record
in the case was not sufficiently clear and specific to permit a decision on
important constitutional questions. In a dissenting opinion, however,
Justice White, with two other Justices, expressed the view that “sending
state and federal courts on an expedition into the minds of police officers
would produce a grave and fruitless misallocation of judicial resources.”
Id. at 565, 88 S. Ct. at 663 (White, J., dissenting). Painten, however, did
not defend on the ground that the “knock and talk” was pretextual but
solely on the ground that he did not consent to the search. George E. Dix,
Subjective “Intent” as a Component of Fourth Amendment Reasonableness,
76 Miss. L.J. 373, 385 (2006) [hereinafter Dix].
The United States Supreme Court seemed to wobble around the
Lefkowitz–Abel line in United States v. Robinson, 414 U.S. 218, 94 S. Ct.
467 (1973). In Robinson, the Supreme Court considered a case where the
defendant was arrested for driving while his operator’s permit was revoked.
Id. at 220, 94 S. Ct. at 469–70. Pursuant to the arrest, the police searched
him and retrieved a crumpled cigarette package that contained heroine
capsules. Id. at 221–23, 94 S. Ct. at 470–71. The defendant was then
charged and convicted of drug-related offenses. Id. at 219, 94 S. Ct. at
469.
In Robinson, the Supreme Court concluded that a search incident to
arrest in a traffic stop was always permitted, even without reasonable
suspicion. See id. at 235, 95 S. Ct. at 477. In a footnote, the Court
summarized Robinson’s position in the lower court (but not the Supreme
Court), where he asserted that the officer “may have used the subsequent
traffic violation arrest as a mere pretext for a narcotics search.” Id. at 221
n.1, 94 S. Ct. at 470 n.1. The Robinson Court noted that placing Robinson
in custody following his arrest “was not a departure from established police
109
department practice.” Id. The Robinson Court thus was not required to
directly address the validity of a pretextual stop. Id.
Justice Marshall, joined by Justices Douglas and Brennan,
dissented. Id. at 238, 94 S. Ct. at 477 (Marshall, J., dissenting). Justice
Marshall emphasized that whether evidence should be suppressed as a
result of a traffic stop raised a fact-specific question. Id. at 248, 94 S. Ct.
at 482. He cited cases from state jurisdictions that stood for the
proposition that an arrest for a minor traffic charge cannot be used as a
lever for expanding the search, including unsupported pat-down searches.
Id. at 244–46, 94 S. Ct. at 481–82. Justice Marshall emphasized the
Lefkowitz–Abel line of cases in rejecting the majority’s proposition that all
that was required to support the search in the case was an objectively valid
traffic arrest. Id. at 248, 94 S. Ct. at 483.
Next, in Scott v. United States, 436 U.S. 128, 130–31, 98 S. Ct. 1717,
1719–20 (1978), the Supreme Court considered a case involving a question
of the alleged failure of agents to “minimize” wiretap interceptions under
the Omnibus Crime Control and Safe Streets Act of 1968. A federal district
court found a statutory violation and held that suppression should be
granted, largely because the agents were aware of the statutory
minimization requirement “but made no attempt to comply therewith.” Id.
at 133, 98 S. Ct. at 1721. The court of appeals reversed. Id. at 134, 98
S. Ct. at 1721.
In affirming the reversal of the district court, the Supreme Court
held that under the facts of the case, the agents never reached the point
where they had a duty to minimize the calls. Id. at 141–42, 98 S. Ct. at
1725–26. What they might have done had they crossed that threshold,
however, was irrelevant. See id. The Supreme Court stated, “[T]he fact
that the officer does not have the state of mind which is hypothecated by
110
the reasons which provide the legal justification for the officer’s action does
not invalidate the action.” Id. at 138, 98 S. Ct. at 1723.
Another case of interest is United States v. Villamonte-Marquez, 462
U.S. 579, 103 S. Ct. 2573 (1983). In Villamonte-Marquez, the Supreme
Court rejected an argument that, because customs officers were
accompanied by a state police officer and were following a tip that the
vessel may contain narcotics, the customs officers could not rely on statute
authorizing the boarding of vessels for inspection. Id. at 584 & n.3, 103
S. Ct. at 2577 & n.3. In so construing the statute, the Supreme Court
emphasized the need to protect the nation’s borders and the minimal
expectation of privacy associated with border situations. Id. at 588–89,
103 S. Ct. at 2579–80.
Prior to Whren, then, there were two competing strands of language
in Supreme Court precedents. The Lefkowitz–Abel strand emphasized that
pretextual searches were invalid and even amounted to serious
misconduct by law enforcement. Yet in the Scott–Robinson line, the
Supreme Court’s language emphasized the burdens of engaging in
subjective inquiry of the purposes of law enforcement.
2. Pretextual investigative stops in lower federal courts prior to
Whren. Given the competing lines of Supreme Court authority, it is not
surprising that a split in the federal circuit courts developed regarding the
lawfulness of pretextual searches. The majority of federal circuit courts
followed the approach in the Scott–Robinson line of cases by holding that
where an officer has objective reasons to believe a traffic violation has
occurred, the stop is reasonable. This approach is sometimes referred to
as the “could have” test because what is important is not the officer’s
actual motivation but, instead, whether an objective officer, under all the
facts and circumstances, could have a reasonable basis for the traffic stop.
111
See, e.g., United States v. Botero-Ospina, 71 F.3d 783, 786–87 (10th Cir.
1995) (en banc); United States v. Johnson, 63 F.3d 242, 246–47 (3d Cir.
1995); United States v. Scopo, 19 F.3d 777, 782–84 (2d Cir. 1994); United
States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc); United States
v. Meyers, 990 F.2d 1083, 1085 (8th Cir. 1993); United States v. Causey,
834 F.2d 1179, 1184–85 (5th Cir. 1987) (en banc).
A number of these federal circuit court cases, however, provoked
strong dissents. For instance, in Botero-Ospina, the Tenth Circuit reversed
its approach to pretextual searches announced in United States v.
Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988), in favor of the “could have”
approach. 71 F.3d at 785–87. Chief Judge Seymour, with two other
judges, wrote in a dissent that “the majority relies on reasons so logically
or legally flawed as to be little more than self-serving rationalizations.” Id.
at 789 (Seymour, C.J., dissenting). She bemoaned that under the
majority’s approach, it is “irrelevant that the stop was motivated by racial
animus, an inarticulable hunch, or any of the other improper reasons.”
Id.
Chief Judge Seymour urged application of a reasonable officer
standard, such as that articulated in Terry, 392 U.S. at 21–24, 88 S. Ct.
at 1879–81, in evaluating the validity of pretextual stops. 71 F.3d at 789–
91. This amounted to a “would have” test. The test according to Chief
Judge Seymour was whether a reasonable officer would have made the
traffic stop notwithstanding any pretextual motive. See id. Anything less
“would invite intrusions upon constitutionally guaranteed rights based on
nothing more substantial than inarticulate hunches.” Id. at 790–91
(quoting Terry, 392 U.S. at 22, 88 S. Ct. at 1880). In closing, Chief Judge
Seymour observed,
112
[T]he magnitude of the majority’s deviation from Supreme
Court precedent and the poverty of its reasons for doing so
prompt me to observe that it is not for this court to provide
law enforcement with a weapon in the war on drugs at the
expense of the Fourth Amendment. A conviction won by
eroding every individual’s right to personal security is dearly
bought indeed. In my judgment, we are perilously close to
selling our birthright for bread and pottage.
Id. at 795.
Judge Lucero also filed a dissenting opinion in Botero-Ospina. Id.
(Lucero, J., dissenting). He pointed out that the majority’s message to law
enforcement officers was, “You may stop motorists on a subterfuge; we
don’t care and we won’t ask.” Id. Judge Lucero found a similarity between
the majority’s approach and the general warrants and writs of assistance
that triggered the American Revolution. Id. at 796. He closed with the
following observation:
I have every confidence in the ability of the trial courts
to determine whether Fourth Amendment-related traffic stops
are reasonable under a totality of the circumstances test. I do
not agree that merely asking whether an officer could have
made a stop is an objective standard for reasonableness;
rather I see it as a warrant for arbitrary exercise of police
power.
Id.
And in Causey, Judge Rubin filed a dissent worth pondering. 834
F.2d at 1186 (Rubin, J., dissenting). Judge Rubin, for himself and five
other judges, emphasized, “When . . . a reasonable officer would not have
made the seizure of the suspect’s person absent an invalid purpose, the
arrest must be condemned as pretextual.” Id. at 1187. Further, he noted,
“An arrest is arbitrary, hence unconstitutional, if it is made in accordance
with a potentially discriminatory plan, even when the same action,
undertaken in accordance with neutral principles, would be permissible.”
Id. at 1187–88.
113
Finally, in Harvey, Chief Judge Keith powerfully dissented. 16 F.3d
at 112. In Harvey, an African-American was stopped for traveling three
miles an hour over the speed limit and subsequently charged with drug
crimes. See id. at 113. The officer involved testified, “Almost every time
that we have arrested drug traffickers from Detroit, they’re usually young
black males driving old cars.” Id. (emphasis omitted). Chief Judge Keith
noted that “the majority acquiesces to an officer’s substitution of race for
probable cause and essentially licenses the state to discriminate.” Id. at
114.
While the majority of the circuits had adopted the view that a traffic
stop was permissible under the “could have” test, two circuits adopted
what amounted to the “would have” test. For example, in United States v.
Cannon, the Ninth Circuit adhered to the view that pretextual searches
were unlawful. 29 F.3d 472, 474–75 (9th Cir. 1994). Citing precedent
from the Tenth Circuit that was later reversed in a controversial en banc
opinion, the Cannon court stated, “In the absence of some limit on police
power to make such [pretextual] stops, ‘thousands of everyday citizens
who violate minor traffic regulations will be subject to unfettered police
discretion as to whom to stop.” Id. at 474–75 (quoting Guzman, 864 F.2d
at 1516). As a result, the Cannon court embraced the “would have” test
and rejected the “could have” test. Id. at 476.
Similarly, in United States v. Smith, 799 F.2d 704, 708 (11th Cir.
1986), the Eleventh Circuit embraced the “would have” approach to
pretextual stops. The Smith court emphasized that under the “would have”
approach, the stop “must be both ‘justified at its inception’ and ‘reasonably
related in scope to the circumstances which justified the interference in
the first place.’ ” Id. at 711 (quoting Terry, 392 U.S. at 20, 88 S. Ct. at
1879). The Smith court noted that were it to abandon the “would have”
114
approach to pretextual stops, “[w]ith little more than an inarticulate
‘hunch’ of illegal activity an officer could begin following a vehicle and then
stop it for the slightest deviation from a completely steady course.” Id.
3. Approaches to pretextual searches in state court decisions prior to
Whren. State courts have far more experience with traffic stops than do
federal courts. Given their experience with the law of the road, state courts
were more receptive than federal courts to penetrating pretextual stops.
Prior to Whren, many state courts that considered the issue believed the
proper test for whether an allegedly pretextual stop was valid was whether
an objective police officer would have made the stop notwithstanding the
pretextual motivation. See, e.g., Mings v. State, 884 S.W.2d 596, 602 (Ark.
1994); Kehoe v. State, 521 So. 2d 1094, 1097 (Fla. 1988), overruled by
Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So. 2d 1171,
1174 (Fla. 2004); People v. Mendoza, 599 N.E.2d 1375, 1383 (Ill. App. Ct.
1992); State v. Izzo, 623 A.2d 1277, 1280 (Me. 1993); State v. Hoven, 269
N.W.2d 849, 852–53 (Minn. 1978) (en banc); State v. Van Ackeren, 495
N.W.2d 630, 642–45 (Neb. 1993); Alejandre v. State, 903 P.2d 794, 796
(Nev. 1995), overruled by Gama, 920 P.2d at 1013; People v. James, 630
N.Y.S.2d 176, 176–77 (App. Div. 1995); State v. Hawley, 540 N.W.2d 390,
392–93 (N.D. 1995); State v. Spencer, 600 N.E.2d 335, 337 (Ohio Ct. App.
1991), overruled by Dayton v. Erickson, 665 N.E.2d 1091, 1097–98 (Ohio
1996); State v. Chapin, 879 P.2d 300, 303–05 (Wash. Ct. App. 1994),
overruled in part by State v. Ladson, 979 P.2d 833, 843 (Wash. 1999)
(en banc) (stating that both subjective and objective factors are relevant to
the pretext inquiry). With minor variations, therefore, these courts
adopted the “would have” test.
Under the “would have” test, the question in a pretextual traffic stop
is whether a reasonable officer would have made the stop notwithstanding
115
any improper investigative motive. By the mid-1990s, the reasonable
officer standard for evaluating pretextual stops under the “would have”
test seemed to be gaining ground among the states. See Thanner v. State,
611 A.2d 1030, 1032 (Md. Ct. Spec. App. 1992). A number of state
supreme courts, however, declined to suppress evidence obtained in
pretextual traffic stops. See, e.g., Ex parte Scarbrough, 621 So. 2d 1006,
1010 (Ala. 1993); State v. Law, 769 P.2d 1141, 1144–45 (Idaho Ct. App.
1989); Garcia v. State, 827 S.W.2d 937, 942 (Tex. Crim. App. 1992)
(en banc).
4. Approaches to pretextual searches in Iowa prior to Whren. Prior
to Whren, this court had several occasions to consider the validity of
pretextual stops. In State v. Cooley, 229 N.W.2d 755, 756 (Iowa 1975),
police were on special assignment to investigate armed robberies and
house prowling. They observed a vehicle with a passenger, Cooley, who
left the vehicle and walked several times between the vehicle and a tavern.
Id. After the vehicle traveled for several blocks, the officers stopped the
vehicle. Id. When Cooley was asked to step out of the vehicle, police
noticed the handle of a revolver protruding from beneath the front seat.
Id. Cooley was arrested and charged with carrying a concealed weapon.
Id.
Cooley sought to suppress evidence arising from the stop. Id. At
the suppression hearing, one of the officers involved testified that the
initial stop arose because the actions of the defendant coming and going
from the tavern were suspicious. Id. at 758–59. The officer also testified
that other factors leading to the stop included the high-crime rate and the
predominantly African-American population in the area. Id. at 759.
Although a provision of the Iowa Code provided for a stop to inspect
the operator’s permit, we held that the police stop was unlawful. Id. at
116
757–59. Based on the record, we concluded that the car stop “was not
effected for the motivative purpose of inspecting the operator’s permit.” Id.
at 759. We further concluded there was no reasonable suspicion of crime
to support the stop. Id. at 759–61. As a result, we concluded that the
evidence obtained during the stop should be suppressed. Id. at 761. The
Cooley case does not indicate whether it was based on the Iowa
Constitution, the Federal Constitution, or both.
After Cooley, we repeatedly emphasized, in strong and direct
language, that an officer is bound by the true reason for making a stop.
See State v. Wiese, 525 N.W.2d 412, 415 (Iowa 1994) (“We hold officers to
their true reason for stopping a vehicle in question and will not allow them
to justify a stop with reasons upon which they did not actually act.”),
overruled by Cline, 617 N.W.2d at 281; State v. Rosenstiel, 473 N.W.2d 59,
61 (Iowa 1991) (“The officer is bound by the true reasons given for the
stop.”), overruled by Cline, 617 N.W.2d at 281; State v. Bailey, 452 N.W.2d
181, 182 (Iowa 1990) (“We have consistently held that in determining the
validity of an investigatory stop police officers are bound by the real
reasons for their actions.”), overruled by State v. Heminover, 619 N.W.2d
353, 357 (Iowa 2000), overruled on other grounds by Turner, 630 N.W.2d
at 606 n.2; State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982) (en banc) (“The
officer is bound by the true reason or reasons for making the stop; that is,
the officer may not rely on reasons that he or she could have had but did
not actually have.”), overruled by Heminover, 619 N.W.2d at 357; State v.
Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980) (“Officers are bound by
their true reason for making the stop. They may not rely on reasons they
could have had but did not actually have.”), overruled by Cline, 617 N.W.2d
at 281.
117
In one pre-Whren case, however, we recognized that the United
States Supreme Court might be changing course on the question of
pretextual arrests. In State v. Garcia, 461 N.W.2d 460, 463 (Iowa 1990),
we observed, “The traditional response to this police tactic [of pretextual
arrests] has been to suppress all evidence derived from the search incident
to the pretextual arrest.” We cited federal caselaw suggesting that the
Supreme Court might be departing from the traditional position on pretext.
Id. at 463–64. In Garcia, however, we concluded that even under the
prevailing Iowa standard, the stop involved was not pretextual. Id. at 464.
The bottom line is that for twenty years prior to Whren, Iowa
consistently held the actual subjective motivation of the officer provided
the relevant yardstick in determining whether a search was unlawfully
pretextual.
C. Overview of Whren. In 1996, the United States Supreme Court
considered the case of Whren v. United States, 517 U.S. 806, 116 S. Ct.
1769. The Court held that the Fourth Amendment allows police to stop a
motorist who the police have probable cause to believe has committed a
traffic infraction regardless of the subjective motivation for the stop and
even if a reasonable officer motivated by a desire to enforce the traffic laws
would not have made the stop. Id. at 811–16, 116 S. Ct. at 1773–76.
In Whren, police in an unmarked car in a “high drug area” in the
District of Columbia observed a truck wait at a stop sign for an unusually
long time, turn suddenly without signaling, and speed off at an
“unreasonable” speed. Id. at 808, 116 S. Ct. at 1772. When the vehicle
stopped behind other traffic, a police officer approached the driver’s door
of the truck and directed that the vehicle be put in park. Id. When the
officer neared the driver’s window, the officer observed plastic bags of
crack cocaine in Whren’s possession. Id. at 808–09, 116 S. Ct. at 1772.
118
Whren was charged with drug offenses and convicted. Id. at 809, 116
S. Ct. at 1772. At a pretrial suppression hearing, Whren argued that the
officer’s asserted ground for approaching the vehicle—to give the driver a
warning concerning traffic violations—was pretextual. Id. The district
court denied the suppression motion, concluding that nothing
demonstrated that the actions by the police were contrary to a normal
traffic stop. Id. Whren’s convictions were affirmed on appeal. Id.
At the Supreme Court, Whren challenged the district court’s denial
of his motion to suppress the evidence. Id. at 810, 116 S. Ct. at 1772–73.
Whren conceded that the officers had probable cause to believe that
various provisions of the traffic code had been violated. Id. at 810, 116
S. Ct. at 1772. Whren argued, however, that the proper test in the context
of a highly regulated traffic stop was whether the police officers “would
have made the stop for the reasons given” by the officers. Id. at 810, 116
S. Ct. at 1773.
The Whren Court indicated that the result in the case was dictated
by prior precedent. Id. at 813, 116 S. Ct. at 1774. The Court characterized
a footnote in Villamonte-Marquez, 462 U.S. at 584 n.3, 103 S. Ct. at 2577
n.3, as “flatly dismiss[ing] the idea that an ulterior motive might serve to
strip the agents of their legal justification.” Whren, 517 U.S. at 812, 116
S. Ct. at 1774. And the Court said Robinson “held that a traffic-violation
arrest (of the sort here) would not be rendered invalid by the fact that it
was ‘a mere pretext for a narcotics search.’ ” Id. at 812–13, 116 S. Ct. at
1774 (quoting Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1).
Further, the Court cited Gustafson v. Florida, 414 U.S. 260, 266, 94 S. Ct.
488, 492 (1973), where it held that a post-arrest search was valid even
though it was not justified by safety concerns. Whren, 517 U.S. at 813,
116 S. Ct. at 1774. Finally, the Court quoted Scott for the proposition that
119
“[s]ubjective intent alone . . . does not make otherwise lawful conduct
illegal or unconstitutional.” Id. (alterations in original) (quoting Scott, 436
U.S. at 138, 98 S. Ct. at 1723).
When the Whren Court asked itself rhetorically why its test would
even preclude actual and admitted pretext from Fourth Amendment
scrutiny, it simply observed that this “more sensible option” was foreclosed
by its precedents. Id. at 814, 116 S. Ct. at 1774–75. The Whren Court
further emphasized that the limiting precedents were not based on the
difficulty of proving subjective intent but rather on the principle that “the
Fourth Amendment’s concern with ‘reasonableness’ allows certain actions
to be taken in certain circumstances, whatever the subjective intent.” Id.
at 814, 116 S. Ct. at 1775. With respect to the suggestion that Fourth
Amendment reasonableness requires balancing, the Court emphasized
that “the result of that balancing is not in doubt where the search or
seizure is based upon probable cause.” Id. at 817, 116 S. Ct. at 1776.
The Whren Court recognized the argument that traffic laws were so
pervasive that virtually everyone is guilty of a violation of some kind. Id.
at 818, 116 S. Ct. at 1777. It declared, however, that it could not discern
a standard to decide when such laws become so expansive and so
commonly violated that the infraction itself cannot be the ordinary
measure of the lawfulness of enforcement. Id. at 818–19, 116 S. Ct. at
1777.
The Whren Court briefly acknowledged that racial profiling could be
used in a discriminatory fashion in the context of pretextual search and
seizure. See id. at 813, 116 S. Ct. at 1774. The Whren Court, however,
declared that the remedy for such discrimination was found in the Equal
Protection Clause, not the Fourth Amendment. Id.
120
D. Approaches to Pretextual Search and Seizure After Whren.
1. Whren in federal courts. The Supreme Court has applied the
principle of Whren in follow-up cases. See, e.g., Devenpeck v. Alford, 543
U.S. 146, 153, 125 S. Ct. 588, 593–94 (2004). And, of course, the Court’s
decisions on federal constitutional issues are binding upon lower federal
courts.
Yet controversy remains. Consider the recent case of United States
v. Johnson, 874 F.3d 571 (7th Cir. 2017) (en banc), cert. denied, ___ U.S.
___, ___, 139 S. Ct. 58, 58 (2018). In this case, police surrounded a car
illegally parked within fifteen feet of a crosswalk. Id. at 572. After seeing
Johnson make movements suggesting that he “was hiding something such
as alcohol, drugs, or a gun,” an officer ordered Johnson out of the car. Id.
at 572–73. “Once the car’s door was open, [the officer] saw a gun on the
floor,” leading to Johnson’s arrest. Id. at 573.
The district court, relying on Whren, denied Johnson’s motion to
suppress. Id. According to the district court, the officers’ desire to
investigate drugs did not matter because the officers had objective reasons
to believe that the car was illegally parked. See id. The majority opinion
in Johnson held that Whren applies to parking violations and, because
objective evidence of a parking violation subjected the driver to a parking
ticket, there was sufficient reason to support the seizure of Johnson even
if the officers’ true motivation was investigatory in nature. See id. at 573–
74.
The majority opinion in Johnson provoked a sharp dissent joined by
two other judges. Id. at 575 (Hamilton, J., dissenting). The dissent noted
that five officers swooped down on the vehicle with lights shining, opened
the doors, pulled all the passengers from the vehicle, and handcuffed
them, all because of a suspected parking violation of being too close to an
121
unmarked crosswalk. Id. The dissenters noted that Whren, when coupled
with additional cases, including Atwater, 532 U.S. at 354, 121 S. Ct. at
1557, and Heien, 574 U.S. at ___, 135 S. Ct. at 536, “gives the police broad
discretion to impose severe intrusions on the privacy and freedom of
civilians going about their business.” Id. at 578. The dissenters noted
that the cumulative effect of the cases “mean[s] that authority to conduct
an investigatory stop can trigger sweeping intrusions and even dangers.”
Id. The dissenters rejected the notion that pretextual parking violations
can give rise to such “unreasonable” police conduct. Id. at 579–80.
Johnson sought certiorari. Petition for a Writ of Certiorari at i,
Johnson, ___ U.S. ___, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1505539, at
*i. He received amicus support from the Cato Institute, which argued that
Whren should be revisited if not limited. Brief of the Cato Institute as
Amicus Curiae Supporting Petitioner at 2–3, Johnson, ___ U.S. ___, 139
S. Ct. 58 (No. 17-1349), 2018 WL 1981930, at *2–3. The Civil and Human
Rights Clinic at Howard University School of Law also filed an amicus brief,
which emphasized the disproportionate effect of Whren on African-
Americans. Brief of Howard University School of Law, Civil & Human
Rights Clinic in Support of the Petitioner at 2–3, Johnson, ___ U.S. ___,
139 S. Ct. 58 (No. 17-1349), 2018 WL 1910945, at *2–3. Finally, Fourth
Amendment scholars entered the fray in support of Johnson, arguing that
extending Whren to a civil parking violation was unreasonable under the
Fourth Amendment and would “exacerbate the ill effects that Whren has
already created.” Brief of Fourth Amendment Scholars as Amici Curiae in
Support of the Petitioner at 11–12, 16, Johnson, ___ U.S. ___, 139 S. Ct.
58 (No. 17-1349), 2018 WL 1942537, at *11–12, *16. The Supreme Court,
however, denied certiorari. Johnson, ___ U.S. at ___, 139 S. Ct. at 58.
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Nevertheless, there is reason to believe that members of the United
States Supreme Court have at least some concern about how Whren has
played out in the real world. Four cases illustrate the point.
In Maryland v. Wilson, 519 U.S. 408, 410, 117 S. Ct. 882, 884
(1997), the Supreme Court held that a police officer may order the
passenger of a lawfully stopped car to exit the vehicle pending completion
of the stop. In dissent, Justice Kennedy expressed concern about the
interplay between Whren and other cases. Id. at 423, 117 S. Ct. at 890–
91 (Kennedy, J., dissenting). Specifically, Justice Kennedy noted,
The practical effect of our holding in Whren, of course,
is to allow the police to stop vehicles in almost countless
circumstances. When Whren is coupled with today’s holding,
the Court puts tens of millions of passengers at risk of
arbitrary control by the police.
Id. at 423, 117 S. Ct. at 890. Further, in a dissent joined by Justice
Kennedy, Justice Stevens said that he “firmly believe[d] that the Fourth
Amendment prohibits routine and arbitrary seizures of obviously innocent
citizens.” Id. at 416, 117 S. Ct. at 887 (Stevens, J., dissenting). The focus
on Fourth Amendment protection against arbitrariness in both dissenting
opinions was nowhere to be found in Whren.
Later, in Arkansas v. Sullivan, 532 U.S. 769, 771–72, 121 S. Ct.
1876, 1878 (2001) (per curiam), the Court reversed a decision of the
Arkansas Supreme Court suppressing evidence in a pretextual traffic stop.
But Justice Ginsburg, joined by Justices Stevens, O’Connor, and Breyer,
sent something of a warning shot. See id. at 772–73, 121 S. Ct. at 1879
(Ginsburg, J., concurring). She declared, “[I]f experience demonstrates
‘anything like an epidemic of unnecessary minor-offense arrests,’ I hope
the Court will reconsider its recent precedent.” Id. at 773, 121 S. Ct. at
1879 (quoting Atwater, 532 U.S. at 353, 121 S. Ct. at 1557).
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Next, in Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2059
(2016), the Court considered a case where an officer did not have cause
for an initial stop but, after obtaining identification from the individual,
learned that there was an outstanding warrant for a parking ticket. The
officer arrested Strieff and discovered drugs in a search incident to the
arrest. Id. at ___, 136 S. Ct. at 2060. The Supreme Court held that the
initial illegality was sufficiently attenuated from the later search such that
no constitutional violation was present. Id. at ___, 136 S. Ct. at 2062–63.
Justice Sotomayor, joined in part by Justice Ginsberg, dissented.
Id. at ___, 136 S. Ct. at 2064 (Sotomayor, J., dissenting). Notably, Justice
Sotomayor wrote passionately about what the Utah Supreme Court
characterized as the “routine procedure” and “common practice” of
running warrant checks on persons detained without reasonable
suspicion. Id. at ___, 136 S. Ct. at 2069 (quoting State v. Topanotes, 76
P.3d 1159, 1160 (Utah 2003)). Writing just for herself, she emphasized
that “unlawful ‘stops’ have severe consequences much greater than the
inconvenience suggested by the name.” Id. at ___, 136 S. Ct. at 2069.
Justice Sotomayor also criticized the thrust of Supreme Court cases that
allow stops that “factor in your ethnicity, where you live, what you were
wearing, and how you behaved.” Id. at ___, 136 S. Ct. at 2069 (citations
omitted). Although Strieff was white, Justice Sotomayor noted that “it is
no secret that people of color are disproportionate victims of this type of
[suspicionless] scrutiny.” Id. at ___, 136 S. Ct. at 2070.
Justice Kagan also dissented, joined by Justice Ginsburg. Id. at ___,
136 S. Ct. at 2071 (Kagan, J., dissenting). She noted that warrant checks
are “routine procedure” and “common practice.” Id. at ___, 136 S. Ct. at
2073 (quoting Topanotes, 76 P.3d at 1160). The majority opinion,
according to Justice Kagan, thus allows police officers to engage in
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unconstitutional stops and seek to cure them through routine warrant
checks. Id. at ___, 136 S. Ct at 2073–74. An officer may consequently be
encouraged to make an unconstitutional stop and conduct a check to see
if the target is one of many millions of people, and if there is a hit, anything
uncovered is fair game for a criminal prosecution. Id. Justice Kagan
emphasized that police officers will see a potential advantage in
unconstitutional stops without reasonable suspicion, exactly what the
exclusionary rule was designed to avoid. Id. at ___, 136 S. Ct. at 2074.
Finally, in District of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct.
577, 584 (2018), the Court considered a case where partygoers brought a
42 U.S.C. § 1983 action against police officers for false arrest. The central
issues in the case were whether the officers had probable cause to arrest
the party participants and, if not, whether the officers were nonetheless
entitled to qualified immunity. Id. at ___, 138 S. Ct. at 585. In considering
the question of qualified immunity, the Court concluded that “a reasonable
officer,” looking at the totality of circumstances, could have concluded that
there was a legal basis for the arrests. Id. at ___, 138 S. Ct. at 593.
Justice Ginsburg concurred in the judgment in part. Id. at ___, 138
S. Ct. at 593 (concurring in the judgment in part). She expressed concern
that the Supreme Court’s approach to search and seizure “sets the balance
too heavily in favor of police unaccountability to the detriment of Fourth
Amendment protection.” Id. at ___, 138 S. Ct. at 594. She noted, among
other things, that commentators have criticized the path charted in Whren
and its progeny, which hold that “an arresting officer’s state of mind . . .
is irrelevant to the existence of probable cause.” Id. (alteration in original)
(quoting Devenpeck, 543 U.S. at 153, 125 S. Ct. at 593). Justice Ginsburg
stated that she “would leave open, for reexamination in a future case,
whether a police officer’s reason for acting, in at least some circumstances,
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should factor into the Fourth Amendment inquiry.” Id. Yet Justice
Ginsburg recognized that the position advocated by the plaintiffs in the
case was not embraced by “settled law” and, as a result, the Court correctly
decided the issue of qualified immunity. Id.
Wilson, Sullivan, Strieff, and Wesby do not necessarily indicate a
majority of the current Supreme Court is in favor of departing from Whren.
But the concurring and dissenting opinions show that among some
current members of the Supreme Court, the consequences of Whren are
cause for concern.
2. Whren in state courts. After Whren, many state courts conformed
their interpretations of state constitutional search and seizure provisions
to that federal decision. Most state courts have done so with little analysis,
often by simply lockstepping state constitutional law with federal
precedent even if contrary to prior state court holdings. See, e.g., Gama,
920 P.2d at 1012 (reversing course from prior precedent and noting the
Nevada Constitution provides no greater protection than that afforded
under the Federal Constitution); State v. Vineyard, 958 S.W.2d 730, 733–
36 (Tenn. 1997) (holding in the context of pretextual traffic stops that the
Tennessee Constitution is coextensive with the Fourth Amendment).
Others, however, have taken a different path.
I first turn to cases out of Washington. Like Iowa, the Washington
Supreme Court has insisted on the warrant-preference approach and has
rejected the Leon approach under the state constitution. State v. Afana,
233 P.3d 879, 884–86 (Wash 2010) (en banc) (rejecting Leon); State v.
Ringer, 674 P.2d 1240, 1247–49 (Wash. 1983) (en banc) (insisting on
warrant preference), overruled in part on other grounds by State v. Stroud,
720 P.2d 436, 440–41 (Wash. 1986) (en banc), overruled in part by State v.
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Valdez, 224 P.3d 751, 759 (Wash. 2009) (en banc). The Washington
conceptual approach to search and seizure is thus similar to that in Iowa.
The Washington Supreme Court declined to follow Whren under the
state constitution in Ladson, 979 P.2d at 836. The issue in that case was
“whether pretextual traffic stops violate article I, section 7 of the
Washington Constitution.” 20 Id. In pre-Whren cases, the Washington
Supreme Court had declared that police could not lawfully engage in
pretextual arrests or searches. State v. Michaels, 374 P.2d 989, 992
(Wash. 1962) (en banc) (“An arrest may not be used as a pretext to search
for evidence.”), abrogated in part on other grounds by Ringer, 674 P.2d at
1248, as recognized in State v. Snapp, 275 P.3d 289, 296–97 (Wash. 2012)
(en banc); see also State v. Montague, 438 P.2d 571, 574 (Wash. 1968)
(rejecting the use of impoundment “as a device and pretext for making a
general exploratory search of the car without a search warrant”).
In Ladson, the Washington Supreme Court framed the issue of
pretext as follows:
[T]he problem with a pretextual traffic stop is that it is a
search or seizure which cannot be constitutionally justified for
its true reason (i.e., speculative criminal investigation), but
only for some other reason (i.e., to enforce traffic code) which
is at once lawfully sufficient but not the real reason. Pretext
is therefore a triumph of form over substance; a triumph of
expediency at the expense of reason.
979 P.2d at 838. The Washington Supreme Court rejected the teaching of
Whren and instead held that pretextual stops violate article I, section 7 of
the Washington Constitution. Id. at 842. In determining whether a stop
is pretextual, the Ladson court held that the state must show, both
subjectively and objectively, the traffic stop was not pretextual. Id. at 843.
20Article
I, section 7 of the Washington Constitution provides, “No person shall be
disturbed in his private affairs, or his home invaded, without authority of law.”
Wash. Const. art. I, § 7.
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In the subsequent case of State v. Arreola, 290 P.3d 983, 986 (Wash.
2012) (en banc), the Washington Supreme Court held that a traffic stop
with mixed motives was not pretextual as long as the motive to stop for
the traffic infraction was an “actual, conscious, and independent cause” of
the stop. Under Arreola, the question was whether the officer would have
conducted the traffic stop regardless of the illegitimate reason or
motivation. Id. at 991–92. According to Arreola, analysis of the pretext
issue still requires consideration of both subjective intent and objective
factors. Id. at 992. The presence of a legally inadequate motivation,
however, does not affect the validity of the stop if the stop would have been
made independently. Id.
A Delaware court also declined to follow Whren under its state
constitution in State v. Heath, 929 A.2d 390, 402 (Del. Super. Ct. 2006).
In Heath, the court considered the validity of a stop for a minor traffic
violation that occurred in the course of a drug investigation. Id. at 394–
96. The Heath court noted that “studies conducted on a stretch of [the
interstate highway] between Baltimore and Delaware demonstrate that
93% of all drivers were observed committing some type of traffic violation.”
Id. at 398. In light of the pervasiveness of traffic violations, the Heath
court reasoned that allowing an officer to search for evidence based on a
mere hunch of an unrelated crime by executing a traffic stop amounted to
“a general warrant to search and seize virtually all travelers on the roads
of this State.” Id. at 402.
As a result, the Heath court declined to follow Whren under article
I, section 6 of the Delaware Constitution. Id. Instead, the Delaware court
developed a three-step approach to determining whether a stop was lawful.
First, the state has the burden of showing a reasonable basis to effectuate
the stop based on a traffic violation. Id. at 402–03. If the state meets its
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initial burden, the burden shifts to the defendant to show that the real
reason for the stop was an unrelated purpose for which there was no
probable cause or reasonable suspicion. Id. at 403. In order to meet the
burden on this second step, the defendant needs to show that
(1) he was stopped only for a traffic violation; (2) he was later
arrested for and charged with a crime unrelated to the stop;
(3) the crime or evidence of the crime was discovered as a
result of the stop; (4) the traffic stop was merely a pretextual
purpose, alleging that the officer had a hunch about, or
suspected the defendant of, a non-traffic related offense
unsupported by reasonable suspicion; and (5) the pretext can
be inferred, at least, when the suppression hearing evidence
is presented.
Id. A nonexclusive list of evidence that might be offered by the defendant
to meet the burden on this second step includes
(1) evidence of the arresting officer’s non-compliance with
written police regulations; (2) evidence of the abnormal nature
of the traffic stop; (3) testimony of the arresting officer that his
reason for the stop was pretextual; (4) evidence that the
officer’s typical employment duties do not include traffic
stops; (5) evidence that the officer was driving an unmarked
car or was not in uniform; and (6) evidence that the stop was
unnecessary for the protection of traffic safety.
Id.
If the defendant meets his or her burden in this second step, a
presumption of pretext arises. Id. In the third step, however, the state
may demonstrate that a non-pretextual reason existed for stop. Id.
Applying the three-step test, the Heath court concluded that the stop
involved in that case was pretextual, and as a result, evidence of
intoxicated driving was suppressed. 21 Id. at 404–06.
21In Turner v. State, 25 A.3d 774, 777 (Del. 2011), the Delaware Supreme Court
declined to consider the constitutionality of a pretextual search under the Delaware
Constitution as the claim was not properly preserved. The Supreme Court stated, without
citation, that other superior courts had not followed Heath. Id. It also cited its “criteria”
approach to independent state constitutional adjudication, which limits the court’s ability
to depart from federal precedent in its interpretation of the state constitution. Id. The
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I next turn to New Mexico. Like Washington, New Mexico adheres
to the warrant-preference approach to search and seizure under its state
constitution and rejects Leon. Campos v. State, 870 P.2d 117, 121 (N.M.
1994) (stressing warrant preference); State v. Gutierrez, 863 P.2d 1052,
1053 (N.M. 1993) (rejecting Leon).
The New Mexico Court of Appeals has also declined to follow Whren.
In State v. Ochoa, the New Mexico court considered the validity of a
pretextual traffic stop under Article II, section 10 of the New Mexico
Constitution. 206 P.3d 143, 146 (N.M. Ct. App.), cert. granted, 203 P.3d
103, 103 (N.M. 2008), cert. quashed, 225 P.3d 794, 794 (N.M. 2009); see
also Schuster v. State Dep’t of Taxation & Revenue, Motor Vehicle Div., 283
P.3d 288, 297 (N.M. 2012) (discussing Ochoa with approval); State v.
Gonzales, 257 P.3d 894, 897–98 (N.M. 2011) (same). The Ochoa court
found the reasoning in Whren faulty. 206 P.3d at 148–51. Specifically,
the court reasoned that because of the ubiquity of driving and the
commonplace nature of traffic stops, probable cause and reasonable
suspicion standards are not sufficient to limit police discretion in the
enforcement of traffic standards. Id. at 150. The court also rejected the
notion that the Equal Protection Clause of the Federal Constitution affords
an adequate remedy, noting that prominent legal scholars had concluded
that remedy faces nearly insurmountable barriers. Id. at 150–51. In any
event, the court noted that reliance on the Equal Protection Clause would
allow pretextual searches based on improper motives other than race. Id.
at 151.
In order to determine the issue of pretext, the New Mexico court
stated that “courts should consider the totality of the circumstances, judge
Delaware Supreme Court does not follow Leon, 468 U.S. at 913, 104 S. Ct. at 3415, under
its state constitution. Dorsey v. State, 761 A.2d 807, 818–21 (Del. 2000).
130
the credibility of witnesses, weigh the evidence, make a decision, and
exclude the evidence if the stop was unreasonable at its inception.” Id. at
155.
3. Iowa’s response to Whren. After Whren, we decided Cline, 617
N.W.2d 277. In Cline, we stated that in determining whether a stop was
supported by probable cause, the officer’s stated reasons did not bind the
State. Id. at 280–81. Instead, relying in part on Whren, we stated that
whether or not probable cause existed for a search was determined by an
objective standard. Id.
The issue in Cline, however, was not whether the initial stop was
pretextual and designed to permit a search for which there was no
constitutionally sufficient basis. This issue of pretext was not raised by
the parties in briefing and was not decided. Further, the briefing nowhere
suggests that the Iowa Constitution should be interpreted in a fashion
different from the federal counterpart on this issue. Thus, the question of
whether we should depart from Whren in the context of pretextual
searches was not before the court and not decided. Instead, we simply
held that when applying a Terry-type test to determine the validity of the
initial seizure, the analysis was objective in nature. See id.
Two years later, we decided State v. Kreps, 650 N.W.2d 636 (Iowa
2002). As in Cline, the issue was the validity of the initial investigative
stop. Id. at 640. Also as in Cline, the parties did not raise the issue of
whether to depart from federal standards in interpreting the Iowa
Constitution. Indeed, in his brief, Kreps simply conceded that the
standard for evaluating the lawfulness of the initial stop was an objective
one. Appellee’s Brief & Argument & Conditional Notice for Oral Argument
at 6, Kreps, 650 N.W.2d 636 (No. 01-0571), 2001 WL 35712937, at *6 (“The
constitutional reasonableness of a search or seizure is determined by an
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objective standard.”). Nowhere in Kreps does the defendant suggest that
a different standard should be applied under article I, section 8 of the Iowa
Constitution than is applied by the federal courts under the Fourth
Amendment. The issue of a separate standard under the Iowa
Constitution was not raised and was not briefed. An uncontested and
summarily discussed issue is not entitled to stare decisis. See Haskenhoff
v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 615 (Iowa 2017) (Appel,
J., concurring in part and dissenting in part) (“An uncontested statement
of law is not entitled to stare decisis.”); see also United States v.
Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (holding that uncontested
and summarily addressed issue in prior case was not controlling
precedent).
In State v. Griffin, 691 N.W.2d 734, 735–36 (Iowa 2005), we did
consider an arrest pursuant to a minor traffic incident. In Griffin, the
defendant did not preserve the claim that the Iowa Constitution should be
interpreted differently than its federal counterpart by failing to raise the
issue in the district court. Id. To raise the claim on appeal, the defendant
briefly asserted prior ineffective assistance of counsel. Appellant’s Brief &
Argument & Request for Oral Argument at 6, Griffin, 691 N.W.2d 734
(No. 03-1321), 2004 WL 3777646, at *6.
In a conclusory opinion, we noted that because of the nearly
identical federal and state search and seizure provisions, “the construction
of the federal constitution is persuasive in our interpretation of the state
provision.” Griffin, 691 N.W.2d at 737. We did not provide any discussion
of potential alternative interpretations. We stated that we had not found
a basis to distinguish the protections afforded by the Iowa Constitution
from the federal caselaw. Id. The conclusory ruling in Griffin appears to
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rely upon a presumption that we should generally follow federal law, id., a
presumption we specifically overturned in Ochoa, 792 N.W.2d at 267.
Notably in Griffin, however, we did not mention let alone overrule
Cooley, 229 N.W.2d at 759. Computer-based research has no cautionary
red flags on Cooley. Perhaps the Griffin court thought the arrest in Griffin
was different than the search in Cooley. If Griffin intended to overrule
Cooley, it certainly would have said so. Unless we are mind readers, we
cannot regard the Griffin court as thoughtfully overruling a precedent in a
different context about a case it did not mention.
In State v. Predka, 555 N.W.2d 202 (Iowa 1996), there is not one
word about the search and seizure provisions of article I, section 8 of the
Iowa Constitution. That is, perhaps, because the issue was not raised in
the defendant’s brief. See Defendant–Appellant’s Brief & Argument,
Predka, 555 N.W.2d 202 (No. 95-1045), 1996 WL 34360016. According to
the Predka court, “The district court correctly concluded the stop was not
in violation of Predka’s Fourth Amendment rights.” 555 N.W.2d at 206. A
case where article I, section 8 of the Iowa Constitution has not been raised
or discussed does not bind us through stare decisis from revisiting the
validity of pretextual stops under the state constitution. See Haskenhoff,
897 N.W.2d at 614–15 (collecting cases).
In State v. Nitcher, 720 N.W.2d 547, 549–51 (Iowa 2006), we
considered whether the police had probable cause coupled with exigent
circumstances to support a search of a home that police suspected was
involved in drug manufacturing. In considering the issue, we noted that
the question of probable cause and exigent circumstances should be
determined on an objective basis. Id. at 554. We noted that Nitcher had
not asked us to distinguish the Iowa Constitution from the Federal
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Constitution. Id. at 553. Therefore, the issue of whether we should depart
from the federal approach was not presented by the parties.
Finally, in Harrison, 846 N.W.2d at 363, we considered a traffic stop
where a license plate frame covered the county name. Iowa Code section
321.37(3) (2009) made it unlawful to place a frame over the registration
plate which did not give a full view of all “numerals and letters.” The
question in Harrison was whether the obstruction of the county name
amounted to an infraction under the statute. 846 N.W.2d at 363. No issue
of pretext was presented in the case and there was no holding based upon
it. See id. at 364 n.1 (“The parties did not raise on appeal the issue of
whether a pretextual traffic stop is valid. We therefore do not reach that
issue.”). There is no holding in Harrison that is relevant for the resolution
of this case.
In any event, if we insisted on blinkered application of stare decisis,
cases like Brown v. Board of Education, 347 U.S. at 488, 74 S. Ct. at 688,
and Gideon v. Wainwright, 372 U.S. 335, 337–38, 83 S. Ct. 792, 793
(1963), would have been decided differently. “[I]f precedent is to have any
value it must be based on a convincing rationale.” Cline, 617 N.W.2d at
285 (quoting James, 393 N.W.2d at 472); see Vance, 790 N.W.2d at 789.
None of the Iowa cases that follow Whren even attempt to offer a convincing
rationale but offer only naked conclusions. And a cut-and-paste job that
simply declares another jurisdiction has followed a certain approach and
inserts that approach into Iowa law is not a convincing rationale. See
Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994) (explaining that past reliance
on federal caselaw in construing an Indiana constitutional provision does
not preclude formulation of an independent standard for analyzing state
constitutional claims under the provision); Jack L. Landau, Some Thoughts
About State Constitutional Interpretation, 115 Penn. St. L. Rev. 837, 871
134
(2011) (“A prior decision . . . that merely assumes without any analysis
that a state individual rights provision has the same meaning that the
federal courts have given its parallel provision in the federal Bill of Rights
should have no particular binding effect.”).
VI. Application of Iowa Constitutional Principles to Pretextual
Searches.
A. Problems with Whren.
1. Lack of understanding of historical context of Fourth Amendment
and subsequent caselaw. Remarkably, Whren contains no discussion at
all about the history or function of the Fourth Amendment. There is not
a word regarding the revolutionary generation’s deeply held concern about
general warrants and open-ended government authority to engage in
search and seizure. One will find no citation to the “briny irreverence” of
the colonist toward the arbitrary exercise of government power. Burger,
14 Am. U. L. Rev. at 4 (quoting Cahn at 24). The admonitions of Judge
Pratt and Mercy Otis Warren about the exercise of general discretionary
power to engage in unfettered search and seizure are ignored. See Entick,
95 Eng. Rep. at 818; 2 Wils. K.B. at 292; Finkelman, 16 S. Ill. U. L.J. at
392. The important constitutional role of the Fourth Amendment—to
restrain wide-open discretion of government officials to stop any car on the
open road—is not analyzed under the facts of the case.
Instead, Whren simply skipped the lessons of history and omitted
any consideration of the structural role of the Fourth Amendment in
limiting law enforcement discretion. Whren speed skated to its conclusion,
namely, that the Court’s prior caselaw foreclosed any conclusion that
pretextual traffic stops might offend the Fourth Amendment. See 517 U.S.
at 812–13, 116 S. Ct. at 1774. The opinion is on authority, not reason.
135
But Whren’s demand of obedience to the Court’s authority was off the
mark.
For instance, the Whren opinion relies heavily on the Scott case. See
id. at 813, 116 S. Ct. at 1774. The Scott case, however, did not involve a
question of pretext at all but only a question of whether law enforcement
complied with a statutory directive to minimize intercepted
communications. 436 U.S. at 130, 98 S. Ct. at 1719–20. And Scott did
not involve pretextual actions but only subjective thoughts that had
nothing to do with the holding of the case. Id. at 136–37, 98 S. Ct. at
1723. No binding ruling there on the question presented in Whren.
Another case relied upon in Whren was Robinson. Whren, 517 U.S.
at 812–13, 116 S. Ct. at 1774. The Whren opinion characterized Robinson
as holding that a “traffic-violation arrest . . . would not be rendered invalid
by the fact that it was ‘a mere pretext for a narcotics search.’ ” Id. (quoting
Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1). But the Robinson
footnote cited in Whren did not present a holding at all but only a
statement of the government’s position in the matter. Robinson, 414 U.S.
at 221 n.1, 94 S. Ct. at 470 n.1. Indeed, a careful reading of the footnote
reveals that the pretextual argument was abandoned in the Supreme
Court. Id. Further, as Professor Wayne R. LaFave points out, the custodial
arrest in Robinson “was not a departure from established police
department practice.” 1 Wayne R. LaFave, Search & Seizure: A Treatise on
the Fourth Amendment § 1.4(f), at 182 (5th ed. 2012) [hereinafter LaFave,
Search & Seizure] (quoting Robinson, 414 U.S. at 221 n.1, 94 S. Ct. at 470
n.1). Robinson “leave[s] for another day questions which would arise on
facts different from these.” 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1.
The Whren Court also relied upon Gustafson. Whren, 517 U.S. at
813, 116 S. Ct. at 1774. In Gustafson, however, “the petitioner . . . fully
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conceded the constitutional validity of his custodial arrest.” 414 U.S. at
267, 94 S. Ct. at 492 (Stewart, J., concurring). The Supreme Court does
not decide issues abandoned by the parties.
Another case relied upon was Villamonte-Marquez. Whren, 517 U.S.
at 812, 116 S. Ct. at 1774. That case relied heavily on the need to protect
our nation’s borders. See Villamonte-Marquez, 462 U.S. at 588–89, 103
S. Ct. at 2579–80. Unlike our cars and homes, there is small expectation
of privacy at border locations under United States Supreme Court
precedent. See id. In any event, the case did not involve an allegation of
pretext but instead involved the construction of a statute. Id. at 580–81,
103 S. Ct. at 2575.
In sum, the appeal to authority in Whren fails. That is not to say, of
course, that the Supreme Court’s caselaw required the question be
resolved in Whren’s favor. But what the case required was a thoughtful
review of the purposes of the Fourth Amendment, a balanced review of the
caselaw, and a careful application of legal principles to the facts at hand.
That simply did not happen in Whren.
2. The pervasiveness of automobile regulation makes unregulated
government authority to conduct traffic stops the equivalent of a general
warrant. Ordinarily, the requirement of probable cause or reasonable
suspicion serves as a check on arbitrary search and seizure. This
particularized protection against arbitrariness, however, is absent in the
context of automobile regulation. As has been recognized by many
authorities, just about any motorist who police follow for any distance will
commit some kind of minor traffic violation that could be used as a
springboard for a pretextual stop.
As has been noted in the commentary, “If several, or in the case of
traffic offenses, most, persons are committing the same offense and
137
practical realities preclude an officer from stopping them all, then probable
cause does not meaningfully limit an officer’s discretion.” Wesley MacNeil
Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and
Doctrinal Remedies to Racial Profiling, 74 Tul. L. Rev. 1409, 1414 (2000)
[hereinafter Oliver]. Professor LaFave is particularly critical:
[G]iven the pervasiveness of such minor offenses and the ease
with which law enforcement agents may uncover them in the
conduct of virtually everyone, [the requirement of a traffic
violation to conduct a stop] hardly matters, for . . . there exists
“a power that places the liberty of every man in the hands of
every petty officer,” precisely the kind of arbitrary authority
that gave rise to the Fourth Amendment.
LaFave, Search and Seizure § 1.4(e), at 173 (quoting John Adams, Abstract
of the Argument, in 2 Legal Papers of John Adams 134, 141–42 (L. Kinvin
Worth & Hiller B. Zobel eds.,1965)).
The cases demonstrate that LaFave is right. The cases reveal
pretextual stops for minor violations, such as driving sixty-eight miles per
hour in a sixty-five miles per hour zone, United States v. Navarro-Camacho,
186 F.3d 701, 703, 705 (6th Cir. 1999), displaying a bent but readable
license plate on the back of a boat trailer, Kehoe, 521 So. 2d at 1095,
failing to signal while changing lanes, Scopo, 19 F.3d at 779–80, driving
with an apparently defective windshield wiper when it was not raining,
State v. Daniel, 665 So. 2d 1040, 1041, 1046 & n.7 (Fla. 1995), overruled
on other grounds by Holland v. State, 696 So. 2d 757, 759 (Fla. 1997),
displaying a license plate with the state name and motto partially
obscured, United States v. Contreras-Trevino, 448 F.3d 821, 824–25 (5th
Cir. 2006), driving with a turn signal activated and not turning after the
first three opportunities to do so, People v. Haywood, 944 N.E.2d 846,
849–50 (Ill. App. Ct. 2011), and driving once over a fog line “by
approximately eight inches for about five seconds,” Dods v. State, 240 P.3d
138
1208, 1209 (Wyo. 2010). Indeed, there is caselaw suggesting that driving
in complete compliance with traffic regulations is so unusual that officers
consider it suspicious and a factor in a drug-courier profile. Smith, 799
F.2d at 707–08.
In Iowa, the traffic code is pervasive. Iowa Code chapter 321 (2016),
entitled “Motor Vehicles and Law of the Road,” consists of 245 pages of
regulations, not including the table of contents. Traffic stops may be made
for countless minor offenses that call for the exercise of discretion, such
as driving with a license plate that is not “free from foreign materials,” like
dirt, id. § 321.38; careless driving, including causing a vehicle “to
unnecessarily turn abruptly or sway,” id. § 321.277A(4); driving at a speed
“greater than []or less than is reasonable and proper,” id. § 321.285(1), or
at a speed that “impede[s] or block[s] the normal and reasonable movement
of traffic,” id. § 321.294; not driving a vehicle “as nearly as practical
entirely within a single lane” on a multilane highway, id. § 321.306(1); and
“follow[ing] another vehicle more closely than is reasonable and prudent,”
id. § 321.307. And aside from the regulations cited above, of course, police
may make seizures for minor violations of the speed limit, for rolling stops,
or for a myriad of minor equipment violations. See, e.g., Harrison, 846
N.W.2d at 368–69 (upholding stop for a license plate cover that obscured
the county name even though the letters and numerals on the plate, which
could be used to run a vehicle check, were unobstructed).
If it is true that every motorist is subject to a pretextual stop, the
unfettered authority to engage in traffic stops is the equivalent of the hated
general warrant that animates our search and seizure law. A general
warrant authorized law enforcement to engage in wide-open, discretionary
stops without particularized reasons for conducting the stop. See, e.g.,
Oliver, 74 Tul. L. Rev. at 1411–12 (“The Fourth Amendment’s historical
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background clearly demonstrates a fear of the discretion of the official in
the field, at that time embodied in general warrants that empowered an
officer to search wherever he chose for evidence of a crime.”). The Supreme
Court in Whren simply did not recognize the pervasiveness of regulation
nor the striking similarity of traffic stops to a general warrant in light of
that pervasiveness. See id. at 1412.
The Whren Court seemed to think that probable cause that a traffic
infraction had occurred was sufficient to cabin law enforcement discretion
in the context of traffic stops. See 517 U.S. at 817–18, 116 S. Ct. at 1776–
77. Often, a particularized showing can be a significant restraint. But in
the context of pervasive traffic violations, it is no restraint at all. Reliance
on probable cause that a traffic violation occurred, in essence, gives law
enforcement officers carte blanche to engage in traffic stops based on their
own whims, prejudices, or implicit biases.
Further, the Supreme Court in Whren did not recognize the role of
search and seizure law, not only in ensuring government action is justified,
but also in ensuring that government action is not arbitrary. The Court
seemed oblivious to the history of search and seizure and the declarations
of Judge Pratt in Entick and of Mercy Otis Warren during the ratification
debate in America of the need to control arbitrary searches where large
bodies of the population are subject to them. See Entick, 95 Eng. Rep. at
818; 2 Wils. K.B. at 292; Finkelman, 16 S. Ill. U. L.J. at 392. Judge Pratt
and Mercy Otis Warren would find the approach in Whren quite disturbing.
3. Lack of analysis on the methods of controlling pretextual stops.
The Supreme Court in Whren did not seriously analyze the potential
methods of regulating pretextual stops. For instance, for twenty-five years
after Cooley, 229 N.W.2d at 759, we employed a subjective approach to the
problem of pretext. Wiese, 525 N.W.2d at 415; Rosenstiel, 473 N.W.2d at
140
61; Bailey, 452 N.W.2d at 182; Lamp, 322 N.W.2d at 51; Aschenbrenner,
289 N.W.2d at 619. In evaluating challenges to stops under Cooley, trial
court judges did what they do every day, namely, found the facts based on
the evidence and inferences that may be drawn from it. It is true, perhaps,
that some prior Supreme Court precedent frowned on a subjective
approach, but those precedents, then, may be flawed too. See, e.g., Scott,
436 U.S. at 138, 98 S. Ct. at 1723; Painten, 389 U.S. at 565, 88 S. Ct. at
663. As Oliver Wendell Holmes once observed, “If justice requires the fact
to be ascertained, the difficulty of doing so is no ground for refusing to
try.” O.W. Holmes, Jr., The Common Law 48 (Bos., Little, Brown & Co.
1881). See generally Dix, 76 Miss. L.J. at 477–81 (arguing that Fourth
Amendment standards should contain a subjective component).
In reality, fact finders engage in subjective inquiries in many areas
of our law. Motive is key in countless areas of law that require a
determination of mens rea or bad faith. For example, motive is an
important part of status-based discrimination and retaliation law under
the Iowa Civil Rights Act, Iowa Code chapter 216. See Haskenhoff, 897
N.W.2d at 633–34 (majority opinion of Appel, J., which was joined by Chief
Justice Cady, and Justices Wiggins and Hecht). In State v. Kern, 831
N.W.2d 149, 171–72 (Iowa 2013), we held that any special needs exception
to the warrant requirement was not available because the purpose of the
search was investigative in nature. And in State v. Coffman, 914 N.W.2d
240, 257 (Iowa 2018), we held that in order to invoke the community
caretaking exception, the State must show that the officer both objectively
and subjectively “intended to engage in community caretaking.”
Federal law also considers subjective purpose in many contexts.
Under Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676
(1978), police officers commit a constitutional violation if they knowingly
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or “with reckless disregard for the truth” falsely support a warrant
application. And under Massiah v. United States, 377 U.S. 201, 206, 84
S. Ct. 1199, 1203 (1964), courts inquire into whether the law enforcement
officer “deliberately elicited” information from the accused. Courts inquire
into “the purpose and flagrancy of the official misconduct,” among other
things, when “determining whether a confession is obtained by
exploitation of an illegal arrest.” Brown v. Illinois, 422 U.S. 590, 603–04,
95 S. Ct. 2254, 2261–62 (1975). Additionally, a roadside checkpoint is
permitted under City of Indianapolis v. Edmond, 531 U.S. 32, 40–42, 121
S. Ct. 447, 453–54 (2000), only if the city’s purpose is distinguishable from
its general interest in crime control.
Further, the approach in Whren is inconsistent with the Supreme
Court’s inventory and administrative search cases. In the context of
inventory and administrative search cases, government agents’ exercise of
discretion to conduct a search is not controlled by a requirement of
particularity. See Burger, 482 U.S. at 702, 107 S. Ct. at 2643–44; Bertine,
479 U.S. at 371, 107 S. Ct. at 741. Because of the lack of control of
discretion in inventory and administrative search cases by a particularity
requirement, the Supreme Court has permitted inquiry into the purpose
of the government action in order to prevent pretextual use of the inventory
and administrative search doctrines. See Burger, 482 U.S. at 702–03, 107
S. Ct. at 2643–44; Bertine, 479 U.S. at 372–73, 107 S. Ct. at 741–42.
Just as the inventory and administrative searches are not controlled
by a particularity requirement, the same is true in the context of a routine
traffic stop. Because of the ubiquity of traffic violations, any requirement
of particularity does not provide a meaningful control on the exercise of
government discretion. Law enforcement can stop any driver on the road
by tailing him or her for a few blocks. As a result, particularity provides
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no check on unfettered discretion to perform a traffic stop. Thus, as in the
inventory and administrative search cases, a further check is required,
namely, some kind of inquiry into the purpose of the government action.
When placed in the proper Fourth Amendment context—i.e., ensuring
proper limitations on unfettered government discretion—Whren is
inconsistent with Bertine and Burger.
Even if pure inquiry into subjective intent is disfavored, the
alternative “would have” test that was proposed in Whren is largely an
objective test. From a methodological standpoint, it is virtually identical
to the test articulated in Terry, 392 U.S. at 21–24, 88 S. Ct. at 1879–81,
for determining the lawfulness of an investigatory stop. A “would have”
approach to pretextual stops would be no more unworkable than the Terry
test, which has been with us for decades. The simple question is whether,
under all the facts and circumstances, the stop would have occurred even
without the pretextual motivation. The exercise would be strikingly similar
to the application of the independent source exception to the exclusionary
rule.
While the approach I advocate is said to be unworkable, the trend
in the states prior to Whren was moving toward permitting challenges to
pretextual searches. See, e.g., Mings, 884 S.W.2d at 602; Kehoe, 521
So. 2d at 1097; Mendoza, 599 N.E.2d at 1383; Izzo, 623 A.2d at 1280;
Thanner, 611 A.2d at 1032; Hoven, 269 N.W.2d at 852–53; Van Ackeren,
495 N.W.2d at 642–45; Alejandre, 903 P.2d at 796; James, 630 N.Y.S.2d
at 176–77; Hawley, 540 N.W.2d at 392–93; Spencer, 600 N.E.2d at 337;
Chapin, 879 P.2d at 303–05. Our caselaw was part of that trend. For
more than two decades after Cooley, 229 N.W.2d at 759, we clearly held to
the view that pretextual searches were unlawful. See Wiese, 525 N.W.2d
at 415; Rosenstiel, 473 N.W.2d at 61; Bailey, 452 N.W.2d at 182; Lamp,
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322 N.W.2d at 51; Aschenbrenner, 289 N.W.2d at 619. The emerging trend
in the states, of which we were a part, would not have occurred if judicial
review of pretextual searches was unworkable.
In any event, the pragmatic policy considerations offered by
followers of Whren, strikingly, do not include the constitutionally based
policy of prohibiting the generalized exercise of discretion by police officers
in conducting searches and seizure. Generalized authority to search is
anathema to search and seizure law. The very purpose of search and
seizure law is to cabin discretion of law enforcement. According to Chief
Justice Burger, search and seizure law was based on “a sort of briny
irreverence toward officials.” Burger, 14 Am. U. L. Rev. at 4 (quoting Cahn
at 24). Where is the “briny irreverence” in the opinions of the court in this
case toward the exercise of government power to search and seize? To
claim that cabining generalized discretion in the hands of law enforcement
is inconvenient is to overrule the constitutional principles embraced in
search and seizure law in the name of contemporary policy.
4. Giving short shrift to the problem of racial profiling. The impact
on our population of racial profiling in our criminal justice system should
not be ignored. As noted by the Ninth Circuit in United States v. Montero-
Camargo,
Stops based on race or ethnic appearance send the underlying
message to all our citizens that those who are not white are
judged by the color of their skin alone. Such stops also send
a clear message that those who are not white enjoy a lesser
degree of constitutional protection—that they are in effect
assumed to be potential criminals first and individuals
second.
208 F.3d 1122, 1135 (9th Cir. 2000) (en banc); see also United States v.
Weaver, 966 F.2d 391, 397 (8th Cir. 1992) (Arnold, C.J., dissenting)
144
(“When public officials begin to regard large groups of citizens as
presumptively criminal, this country is in a perilous situation indeed.”).
Whren’s impact with respect to racial profiling claims in the context
of routine traffic stops under the Fourth Amendment is clear: there is no
protection. As noted by two leading scholars, “Whren v. United States is
notorious for its effective legitimation of racial profiling in the United
States.” Gabriel J. Chin & Charles J. Vernon, Reasonable but
Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v.
United States, 83 Geo. Wash. L. Rev. 882, 884 (2015) [hereinafter Chin &
Vernon] (footnote omitted).
5. Inadequate analysis of potential equal protection claims. The
Whren opinion briefly addresses the concern about racial discrimination.
According to Whren, the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause, not the
Fourth Amendment. 517 U.S. at 813, 116 S. Ct. at 1774.
The referral of defendants challenging pretextual traffic stops to the
Equal Protection Clause is rich in irony. The Supreme Court in Whren
rejected inquiry into the subjective state of mind of a police officer under
the Fourth Amendment. Id. Yet it suggested that defendants alleging
racial profiling might seek an equal protection remedy. Id. Under the
applicable federal law, a criminal defendant seeking to establish an equal
protection violation has the burden of showing racial animus. Washington
v. Davis, 426 U.S. 229, 239–42, 96 S. Ct. 2040, 2047–49 (1976). So, in
other words, law enforcement is freed from a Fourth Amendment inquiry
into subjective intent because of the difficulties of proof, but criminal
defendants are shackled with that very difficulty in seeking to prove an
equal protection claim. Further, the requirement of invidious
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discrimination in equal protection claims would likely prevent a claim of
pretext based on implicit bias.
There are other problems. It is unclear that the exclusionary rule
applies to equal protection violations. See United States v. Armstrong, 517
U.S. 456, 461 n.2, 116 S. Ct. 1480, 1484 n.2 (1996); Brooks Holland,
Safeguarding Equal Protection Rights: The Search for an Exclusionary Rule
Under the Equal Protection Clause, 37 Am. Crim. L. Rev. 1107, 1110 (2000)
(“[N]either in Whren nor elsewhere has the Supreme Court clarified
whether a defendant may seek the exclusion of evidence in a criminal
proceeding as a remedy under the Equal Protection Clause.”).
In addition, an individual defendant in a pretextual traffic stop
simply does not ordinarily have the resources to conduct elaborate
statistical studies to show the existence of racial profiling. Generally,
motions to suppress are handled on relatively short notice and with limited
discovery. The resolution of a suppression motion is not usually delayed
while data is gathered and statistically analyzed, particularly where the
defendant is in jail pending trial. Indigent defendants will not be able to
afford an expert, and district courts may bray when faced with a costly
application for approval of an expert in support of a motion to suppress.
Further, some courts considering equal protection challenges to traffic
stops have required statistical evidence of the specific locality where the
stop occurred. See, e.g., Chavez v. Ill. State Police, 251 F.3d 612, 643–45
(7th Cir. 2001) (holding statistical evidence was insufficient because it was
statewide not local); Lee v. City of South Charleston, 668 F. Supp. 2d 763,
776 (S.D. W. Va. 2009) (noting evidence of disparate treatment by state
police throughout state, county, and city but no evidence of disparate
treatment by municipal officers employed by the particular city). Meeting
such a requirement in the context of a motion to suppress would be
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difficult. And even if a relevant pattern and practice of discriminatory
conduct can be shown, this might not be sufficient to establish
discrimination in a particular case, at least under federal law. See
McCleskey v. Kemp, 481 U.S. 279, 297–99, 107 S. Ct. 1756, 1769–70
(1987). 22
While an equal protection claim in a motion to suppress could be
based on direct evidence of racial discrimination, such an approach will
rarely occur because few police officers will overtly confess to racial bias.
As noted by commentators, Bull Conner is gone. See Frank R.
Baumgartner et al., Suspect Citizens: What 20 Million Traffic Stops Tell Us
About Policing and Race 20 (2018). In short, an equal protection claim
based upon a pretextual investigatory stop is not a very good candidate for
resolution in the context of a motion to suppress.
In any event, the real problem may not only be a few bad apples in
law enforcement or a pattern of intentional misconduct. As noted by a
recent Kansas study, the problem of disproportionality in traffic stops is
not caused by individual decisions in isolation but is, instead, a result of
22The discriminatory intent requirement has been subject to criticism. See
Theodore Eisenberg & Sheri Lynn Johnson, The Effects of Intent: Do We Know How Legal
Standards Work?, 76 Cornell L. Rev. 1151, 1152 (1991); R.A. Lenhardt, Understanding
the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 808–09, 877–78
(2004); Girardeau A. Spann, Disparate Impact, 98 Geo. L.J. 1133, 1135–36 (2010).
In addition, the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) was ratified by the United States in 1994. See International
Convention on the Elimination of All Forms of Racial Discrimination, opened for signature
Dec. 21, 1965, 660 U.N.T.S. 195 (ratified by U.S. Oct. 21, 1994). The ICERD prohibits
discrimination “where there is an unjustifiable disparate impact on a racial or ethnic
group, regardless of whether there is any intent to discriminate against that group.”
Torruella, 20 B.U. Pub. Int. L.J. at 194. “[W]here official policies or practices are racially
discriminatory,” the state has an affirmative obligation “to prevent or end the situation.”
Id. The United States joined the ICERD with a declaration stating that the treaty was not
self-executing, meaning that the treaty would not afford private causes of action. See
Jamie Fellner, Race, Drugs, and Law Enforcement in the United States, 20 Stan. L. & Pol’y
Rev. 257, 259 (2009).
147
institutional practice of pretextual investigatory stops, “a deliberate,
specific invention that directly contributed to the explosion in arrests and
imprisonment of racial minorities.” Epp et al. at 10. The authors note
that “a large body of research demonstrates that most people in the
contemporary United States”—including police officers, lawyers, and, yes,
judges too—“cannot help but assume that racial minorities are more likely
to be dangerous or engaged in criminality.” Id. at 40. “Policies favoring
proactive [pretextual] investigatory stops . . . activate departments’ and
officers’ implicit stereotypes of which neighborhoods and which
individuals are suspicious.” Id. at 50.
Finally, an equal protection approach may not have the same
across-the-board application to all arbitrary pretextual searches. A
pretextual search based on racial profiling might be subject to search and
seizure attack, but an equally arbitrary pretextual search of a person with
curly hair would not. Celebrated criminal justice cases—including those
affording counsel to indigents in the Scottsboro case, requiring Miranda
warnings to those who might otherwise face the third degree, and
extending Fourth Amendment protections to the states to avoid the
outrageous treatment of Dollree Mapp—were motivated, at least in part, to
protect African-Americans from unfair overreach by law enforcement. Yet
the principles announced in these cases apply to all and not just to some.
The view in Whren that the Fourth Amendment and the Equal
Protection Clause are hermetically sealed off from one another is
theoretically unsound. A wide range of modern scholars, including
Charles Black, John Hart Ely, Laurence Tribe, Akhil Reed Amar, and Vicki
Jackson, “have argued against constitutional interpretation that treats
clauses of the document in isolation.” Paul M. Schwartz & William Michael
Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual
148
Property as Constitutional Property, 112 Yale L.J. 2331, 2410–11, 2410
n.407 (2003) [hereinafter Schwartz & Treanor] (collecting authorities); see
also Richard Albert, Constitutional Handcuffs, 42 Ariz. St. L.J. 663, 683
(2010) [hereinafter Albert] (“To regard a constitution as a mere compilation
of individual provisions, each subject to a sliding scale of worth, is to
devalue the constitutional text as a document whose constituent parts
must be read together to give the larger whole its full meaning.”).
It is also a historically inaccurate characterization of the Court’s
cases. Criminal procedure rulings under other constitutional provisions,
including the Fourth, Fifth, and Sixth Amendments, have been very much
informed by the notion of equal citizenship for minorities. See, e.g.,
Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99
Mich. L. Rev. 48, 48 (2000). The Whren Court must not have gotten the
memo, but the story of American criminal procedure is a story about race.
E.g., I. Bennett Capers, Rethinking the Fourth Amendment: Race,
Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 1
(2011).
Certainly, the theoretical availability of an equal protection claim
should not preempt the possibility of a claim under search and seizure
principles. There is no constitutional bar to simultaneous violations of
multiple constitutional provisions. See, e.g., Loving v. Virginia, 388 U.S.
1, 12, 87 S. Ct. 1817, 1823–24 (1967) (finding violations of both Equal
Protection and Due Process Clauses in striking down miscegenation
statute).
The interplay between antidiscrimination principles and
constitutional concepts of search and seizure were illustrated very early in
Iowa’s history. In 1863, Archie P. Webb, an African-American, was
employed as a laborer in Polk County. Coffin at 201. The sheriff arrested
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him for violating an 1851 statute that provided, among other things, that
free blacks would be required to leave the state on three days’ notice. Id.
Webb filed a petition for habeas corpus, and the matter came before Judge
John Gray. Id. Among other rulings, Judge Gray found that the seizure
of Webb by the sheriff violated article I, section 8 of the Iowa Constitution.
See id. at 211. After citing article I, section 8, Judge Gray powerfully
reasoned, “Is a law reasonable that arrests and imprisons a man where
the only crime charged is that he is a freeman and has settled in the State
of Iowa?” Id. Judge Gray then asked, “If this law authorizes a reasonable
seizure, then what would be an unreasonable seizure?” Id. The case of
Webb v. Griffith is a classic demonstration of the interplay between search
and seizure law and the principles of equality.
6. Role of implicit bias. The Whren Court did not consider that
disproportionate traffic stops may arise not simply from overt bias but also
from unconscious bias or stereotypes. The notion of implicit bias is not
very new. Nearly a decade before Whren, Professor Charles Lawrence
wrote a seminal law review article on the role of implicit bias in law
enforcement and other settings. Charles R. Lawrence III, The Id, the Ego,
and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev.
317, 322 (1987) [hereinafter Lawrence]. Professor Lawrence raised
questions about the intent requirement in an equal protection claim under
Davis, 426 U.S. 229, 96 S. Ct. 2040. Lawrence, 39 Stan. L. Rev. at 318.
According to Lawrence, the injury to racial minorities arising from acts of
discrimination is not affected by the motives of the decision-maker. See
id. at 321.
There can be no doubt that the Supreme Court was generally aware
of the problem of implicit bias when it decided Whren. In Batson v.
Kentucky, Justice Marshall recognized the potential role of unconscious
150
racism in jury selection. 476 U.S. 79, 106, 106 S. Ct. 1712, 1728 (1986)
(Marshall, J., concurring). Later, in Georgia v. McCollum, Justices
O’Connor and Thomas each recognized that unconscious racism may
affect jurors’ view of a minority defendant. 505 U.S. 42, 61, 112 S. Ct.
2348, 2360 (1992) (Thomas, J., concurring in the judgment); id. at 68, 112
S. Ct. at 2364 (O’Connor, J., dissenting). Yet the Court did not address
the impact of implicit bias in Whren.
7. Role of government as teacher. In Olmstead v. United States,
Justice Brandeis famously wrote about the role of government as teacher.
277 U.S. 438, 485, 48 S. Ct. 564, 575 (1928) (Brandeis, J., dissenting),
overruled on other grounds by Katz v. United States, 389 U.S. 347, 352–53,
88 S. Ct. 507, 512 (1967). According to Justice Brandeis, the long-term
effectiveness of the criminal justice system demands that the laws be fairly
enforced. See id. The Supreme Court recapitulated Justice Brandeis’s
point in Mapp, warning, “Nothing can destroy a government more quickly
than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence.” 367 U.S. at 659, 81 S. Ct. at 1694.
The use of pretextual investigative stops to avoid historic
constitutional restraints is hardly the kind of lesson to be taught to those
who interface with the criminal justice system. A defendant who engaged
in pretextual reasoning would not win plaudits from a probation or parole
officer, a prison official, or a sentencing judge. Condoning pretextual
seizures by law enforcement sends a clear message: The law’s restrictions
apply to me but not to thee. See Jonathan Blanks, Thin Blue Lies: How
Pretextual Stops Undermine Police Legitimacy, 66 Case W. Res. L. Rev. 931,
932 (2016); Tom R. Tyler & Cheryl J. Wakslak, Profiling and Police
Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of
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Police Authority, 42 Criminology 253, 273–74, 276 (2004) [hereinafter Tyler
& Wakslak].
8. Harms caused by arbitrary seizures. The Whren Court did not
consider the harms that arise from arbitrary seizures of citizens on the
open road. See 517 U.S. at 818–19, 116 S. Ct. at 1777. In considering
harms, the focus is not on benefiting the particular defendant who seeks
to suppress evidence but is instead on the need to protect innocent citizens
generally from pretextual investigative stops. Brinegar, 338 U.S. at 180–
82, 69 S. Ct. at 1313–14. As noted by Professor David Harris, costs of
pretextual investigative stops include “the impact on all the people innocent
of any wrongdoing who are stopped, questioned and perhaps searched, and
treated in many ways like suspected criminals in the effort to arrest the
guilty.” David A. Harris, Essay, Car Wars: The Fourth Amendment’s Death
on the Highway, 66 Geo. Wash. L. Rev. 556, 580 (1998).
Pretextual investigative stops of automobiles are not harmless to
innocent citizens. Search and seizure law protects not only privacy of
information but includes the right to be secure in one’s person, papers,
and effects. A person’s interest in security is obviously impacted by a stop
by police on the open road. Such stops are not simply minor
inconveniences. They may engender “fear and surprise,” Sitz, 496 U.S. at
452, 110 S. Ct. at 2486, as well as an “unsettling show of authority” and
“substantial anxiety” in law-abiding motorists, Prouse, 440 U.S. at 657, 99
S. Ct. at 1398. Further, a pretextual investigative stop may give rise to
fears of an escalating confrontation that African-Americans explain to their
teenaged children in “the talk.”
When pretextual investigative stops are made on racial minorities,
the message is sent that those who are not white are second-class citizens.
In the “stop and frisk” case of Floyd v. City of New York, 959 F. Supp. 2d
152
540, 557 (S.D.N.Y. 2013), testimony suggested that the stops make people
“feel unwelcome in some parts of the City.” Discrimination may cause
“deep and lasting harm” and sends a message of racial insubordination.
Epp et al. at 135. This kind of racial stigmatization drove the result in
Brown v. Board of Education, where the court noted that segregated
schools “generate[] a feeling of inferiority” among students “as to their
status in the community that may affect their hearts and minds in a way
unlikely ever to be undone.” 347 U.S. at 494, 74 S. Ct. at 691.
Pretextual investigative stops also make people less likely to trust
police. Social psychology suggests that where people believe the system is
discriminatory or unfair, they support it less and view it as less legitimate.
See Tyler & Wakslak, 42 Criminology at 273–74, 276.
There is a suggestion in another opinion in this case of a long line of
policy horribles if we were to decline to permit pretextual stops. One of
the asserted problems with eliminating pretextual stops is that it would
undermine public confidence in our legal system. But do pretextual stops
promote public confidence in our legal system? Really? Do pretextual
stops promote the perception that law enforcement offers act with
integrity? Who thinks that? Do pretextual stops promote public
confidence among those persons who bear the brunt of many of them,
namely, African-Americans? When an African-American parent gives his
or her teenage child “the talk” about driving in Iowa, does anyone think
that parent could credibly explain that the general authority of police to
stop based on implicit bias is part of the need for “public confidence” in
law enforcement? Pretextual stops arising from racial profiling permitted
by Whren “damage[] law enforcement and the criminal justice system as a
whole by undermining public confidence and trust in the police, the
courts, and criminal law, and thereby undermining law enforcement
153
efforts and ability to solve and reduce crime.” See 31 R.I. Gen. Laws Ann.
§ 31-21.2-2(f) (West, Westlaw through Chapter 26 of the 2019 Regular
Session).
9. Summary. According to Professor LaFave, “The totality of the
Court’s analysis in Whren is, to put it mildly, quite disappointing.”23
LaFave, “Routine Traffic Stop,” 102 Mich. L. Rev. at 1859. As noted above,
the shortcomings of Whren are manifold. To the extent a state court simply
adopts Whren hook, line, and sinker into its interpretation of its own state
constitution, the flaws are implicitly imported into local law.
B. Post-Whren Developments.
1. Implicit bias. Since Whren was decided, there has been an
explosion of scholarly activity focusing on the question of implicit bias. A
23LaFave is not alone in his criticism of Whren. The scholarly reaction to Whren,
on balance, has been quite negative. See, e.g., Chin & Vernon, 83 Geo. Wash. L. Rev. at
884 (“Whren v. United States is notorious for its effective legitimation of racial profiling in
the United States.” (Footnote omitted.)); David A. Harris, Essay, “Driving While Black” and
All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L.
& Criminology 544, 582 (1997) (criticizing the increased discretion in Whren and stating
that “[w]e are all the losers for it”); Pamela S. Karlan, Race, Rights, and Remedies in
Criminal Adjudication, 96 Mich. L. Rev. 2001, 2005 (1998) (stating the Whren petitioner’s
fears of racial profiling from arbitrary traffic stops have proved to be well founded); Lewis
R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev.
1413, 1414–15 (2013) (“The protections of the Fourth Amendment on the streets and
highways of America have been drastically curtailed[, and its] value of preventing
arbitrary police behavior has been marginalized.”); Maclin, Race and the Fourth
Amendment, 51 Vand. L. Rev. at 392 (“If the Supreme Court is serious about protecting
the Fourth Amendment interests of minority motorists, it should reverse Whren v. United
States forthwith.”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop
and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 821 (2002) (noting under Whren,
police have authority to stop almost any vehicle at any time); Oliver, 74 Tul. L. Rev. at
1480 (calling for limiting discretion of police in traffic stops); Thompson, 74 N.Y.U. L. Rev.
at 1012 (concluding that “the Supreme Court has distorted Fourth Amendment
jurisprudence” and erred in “declaring that the subject of racial motivation is irrelevant
to Fourth Amendment analysis”); Jonathan Witmer-Rich, Arbitrary Law Enforcement Is
Unreasonable: Whren’s Failure to Hold Police Accountable for Traffic Enforcement Policies,
66 Case W. Res. L. Rev. 1059, 1059 & n.3 (2016) (noting that critical reaction to Whren
has been overwhelmingly negative); Daniel B. Yeager, The Stubbornness of Pretexts, 40
San Diego L. Rev. 611, 617–34 (2003) (criticizing Whren for failing to acknowledge what
counts as pretext).
154
robust scholarly literature has emerged demonstrating that in addition to
intentional acts of discrimination, many acts of discrimination may be
unconscious. E.g., L. Song Richardson, Police Efficiency and the Fourth
Amendment, 87 Ind. L.J. 1143, 1146–51 (2012) [hereinafter Richardson].
The scholarly literature is summarized in State v. Plain, 898 N.W.2d 801,
830–36 (Iowa 2017) (Appel, J., concurring specially).
We discussed the problem of implicit bias in Pippen v. State, 854
N.W.2d 1, 6–7 (Iowa 2014). In Pippen, Justice Waterman, in a concurring
opinion, noted, “Implicit-bias theory helps explain how statistical
disparities can result without intentional discrimination . . . .” Id. at 33
(Waterman, J., concurring specially). In short, in situations where a
decision-maker has substantial discretion, the risk of unconscious bias
affecting decisions is present and potentially quite powerful. There is no
reason to think law enforcement, any more than farmers, teachers,
lawyers, or judges, are immune from implicit bias. See Megan
Quattlebaum, Let’s Get Real: Behavioral Realism, Implicit Bias, and the
Reasonable Police Officer, 14 Stan. J. C.R. & C.L. 1, 3–5, 10–11 (2018)
[hereinafter Quattlebaum]. Our increasing understanding of implicit bias
heightens the urgency for dealing in an effective way with situations where
law enforcement exercises broad, unfettered general authority to affect
individual liberty. See id. at 32–33 (“[A] Supreme Court that seeks to
minimize traffic stops and searches that are unreasonable because race is
used as a basis of judgments about suspicion might revisit the significant
discretion it has afforded police officers through the combined effects of its
decisions in Whren, Schneckloth, and related cases.”).
Recent implicit bias studies suggest that racial disproportionality in
pretextual investigatory stops may be due to an institutional mindset that
allows for unregulated selection of investigative stop targets based upon
155
split-second decisions where implicit bias is likely to flourish. See, e.g.,
Epp et al. at 9–14; see also Batson, 476 U.S. at 106–07, 106 S. Ct. at 1728
(“ ‘[S]eat-of-the-pants instincts’ may often be just another term for racial
prejudice. Even if all parties approach the Court’s mandate with the best
of conscious intentions, that mandate requires them to confront and
overcome their own racism on all levels—a challenge I doubt all of them
can meet. It is worth remembering that ‘. . . racial and other forms of
discrimination still remain a fact of life, in the administration of justice as
in our society as a whole.’ ” (quoting Vasquez v. Hillery, 474 U.S. 254, 264,
106 S. Ct. 617, 624 (1986))). Search and seizure law should be fashioned
to limit the risk of improper influence arising from such institutional bias.
2. Recognition of the problem of pretextual stops. A second feature
of the landscape that has changed since Whren is the recognition of the
pervasiveness of racial profiling. There are some decades-old empirical
studies that are not encouraging. For instance, in Colorado, a study
showed that even though over 400 persons were stopped on the interstate
for traffic violations, not a single traffic ticket was issued. David A. Harris,
Essay, “Driving While Black” and All Other Traffic Offenses: The Supreme
Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 568–
69 (1997). Similarly, during the 1980s in Volusia County, Florida,
available records show that less than 1% of those stopped actually received
tickets. Id. at 561–63. Of the 1100 recorded stops, 70% were African-
American or Hispanic even though these racial groups comprised only
about 5% of the drivers in the area. Id. Further, studies in Connecticut,
Illinois, North Carolina, and Rhode Island showed marked racial disparity
in traffic stops. Guy Padula, Utah v. Strieff: Lemonade Stands and Dragnet
Policing, 120 W. Va. L. Rev. 469, 481 n.89 (2017) [hereinafter Padula]; see
also Baumgartner et al., Racial Disparities in Traffic Stop Outcomes, 9 Duke
156
F. for L. & Soc. Change at 24–26 (discussing studies in sixteen states);
Gross and Barnes, 101 Mich. L. Rev. at 660 (describing studies in
Maryland); Beall, 36 Law & Ineq. at 149 & n.27 (summarizing studies in
North Carolina and Detroit).
More recently, a study in a Cleveland neighborhood showed that
83% of all citations for seat belt violations were issued to African-
Americans and 88% of all the driver’s license offenses involved African-
Americans. Dunn, 66 Case W. Res. L. Rev. at 982. Further study of Ohio
cities has found a persistent pattern of racial profiling in traffic
enforcement. See id. at 973–86. A federal court found the stop and frisk
policy in New York City was racially discriminatory. Floyd, 959
F. Supp. 2d at 560–61.
By way of summary, scholars have cited testimonial accounts of
victims, statistical evidence, laws and consent decrees, political speeches,
and policy-maker decisions to show the persistent pattern of racial
profiling in law enforcement. E.g., Padula, 120 W. Va. L. Rev. at 474 &
nn.39–43. 24
C. Discussion of Choices Under Article I, Section 8 of the Iowa
Constitution. There is an array of choices under the Iowa Constitution.
First, we could, of course, follow the analysis in Whren and adopt what is
known as the “could have” test. Under the “could have” test, pretextual
24The American Civil Liberties Union of Iowa, the NAACP, the League of United
Latin Americans Citizens of Iowa, and 1000 Kids for Iowa have filed an amicus brief in
this case presenting statistical information which they assert demonstrates racial
disproportionality in arrests in Iowa. In response, the Iowa County Attorneys Association
filed an amicus brief challenging the validity of the statistics. I am grateful for the efforts
of amici to assist us in this case. Deciding this case, however, does not require resolving
whether, in fact, racial profiling is present in Iowa generally or even in this particular
case. Instead, what is important, for purposes of article I, section 8, is that if law
enforcement had unlimited discretion to make traffic stops regardless of pretext, our
search and seizure law would allow law enforcement to engage in racial profiling.
157
traffic stops where the officers have reasonable suspicion or probable
cause of a traffic infraction are not subject to challenge under article I,
section 8 regardless of the nature and power of the motive for the search.
A defendant would have to look elsewhere—perhaps to concepts of equal
protection—for constitutional protection, if any, from arbitrary search and
seizure.
A second option is to simply embrace a subjective test for pretext
and determine what the officer’s purpose was for engaging in the stop.
This is the test we applied in Cooley, 229 N.W.2d at 759, and its progeny.
A third option is some form of the “would have” test. The notion
here would be that evidence obtained as a result of a pretextual traffic stop
is subject to exclusion as unlawfully obtained under article I, section 8
unless the State can show that the stop would have occurred even without
pretextual motivation.
There is, perhaps, a final twist. This court could adopt an approach
that limits search and seizure review of pretextual stops to certain subject
matter. For instance, one scholar has suggested that judicial search and
seizure oversight of pretextual traffic stops might be limited to situations
involving “authoritarian pretext.” Cynthia Barmore, Authoritarian Pretext
and the Fourth Amendment, 51 Harv. C.R.-C.L. L. Rev. 273, 276 (2016).
I begin by rejecting the “could have” approach of Whren, 517 U.S. at
811–16, 116 S. Ct. at 1773–76. The “could have” test is not a test for
pretext at all but simply rejects all pretext claims. I am simply unwilling
to allow such a wholesale abandonment of constitutional restrictions on
arbitrary pretextual traffic stops. It is undeniable that one of the historic
purposes of search and seizure law is to prevent the government from
engaging in arbitrary conduct permitted by unfettered discretion. Wilson,
519 U.S. at 416, 117 S. Ct. at 887; Stanford, 379 U.S. at 481, 85 S. Ct. at
158
510; Brinegar, 338 U.S. at 180–81, 69 S. Ct. at 1313; Wolf, 338 U.S. at 27,
69 S. Ct. at 1361; Boyd, 116 U.S. at 625, 6 S. Ct. at 529; McCoy v. State,
491 P.2d 127, 138 (Alaska 1971); Coleman, 890 N.W.2d at 299–300;
Entick, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292; Cuddihy at 377–78;
LaFave, Search and Seizure § 1.4(e), at 173; Amsterdam, 58 Minn. L. Rev.
at 411, 417; Burger, 14 Am. U. L. Rev. at 4; Finkelman, 16 S. Ill. U. L.J.
at 392; Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. at 333–
38; Maclin, The Complexity of the Fourth Amendment, 77 B.U. L. Rev. at
946; Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. &
Mary L. Rev. at 248. And it is inescapable that given the pervasiveness of
traffic regulation, unfettered discretion to stop motorists on the open road
is the equivalent of the hated general warrant. Botero-Ospina, 71 F.3d at
796; Heath, 929 A.2d at 402; LaFave, Search and Seizure § 1.4(e), at 173;
Oliver, 74 Tul. L. Rev. at 1411–12. Further, a wide-open, let ‘er rip
approach to warrantless pretextual traffic stops is inconsistent with the
thrust of our search and seizure law, which seeks to limit the scope of
warrantless searches and to tightly control searches that occur without a
warrant. See Ingram, 914 N.W.2d at 804–05; Coleman, 890 N.W.2d at
299–300; Gaskins, 866 N.W.2d at 3, 12–14; Pals, 805 N.W.2d at 782–83.
Further, our increased knowledge of implicit bias and the
accumulating evidence of the reality of racial profiling reinforces my
determination to address the issue. See Batson, 476 U.S. at 106–07, 106
S. Ct. at 1728; Plain, 898 N.W.2d at 830–36; Epp et al. at 50; Lawrence,
39 Stan. L. Rev. at 322; Quattlebaum, 14 Stan. J. C.R. & C.L. at 3–5, 10–
11, 32–33; Richardson, 87 Ind. L.J. at 1146–51. The “could have”
approach amounts to a license to law enforcement to act in an
unstructured fashion without regard to implicit bias that may be a
powerful motivating factor in the exercise of police authority. The
159
accumulating evidence of the exercise of wide-open discretion through
direct or implied use of racial profiling in traffic stops reinforces the need
to fashion a body of law that discourages, if not eliminates, these factors
in the discretionary exercise of the power to search and seize.
I also decline to rely on the back-up plan of equal protection.
Bringing an equal protection claim under federal law would be difficult, if
not impossible, in the context of pretextual traffic stops. See McCleskey,
481 U.S. at 297–99, 107 S. Ct. at 1769–70; Davis, 426 U.S. at 239–42, 96
S. Ct. at 2047–49; Ochoa, 206 P.3d at 150–51. There may be opportunities
under the Iowa Constitution to bring an equal protection-type claim. See
Varnum, 763 N.W.2d at 878 n.6 (discussing independent approach to
equal protection under the Iowa Constitution); Racing Ass’n of Central
Iowa, 675 N.W.2d at 4–7, 16 (applying rational basis test under the Iowa
Constitution in a fashion different from the United States Supreme Court).
But even if available, equal protection claims will not likely reach the broad
scope of arbitrary police conduct associated with pretextual traffic stops.
In any event, it is not unusual for constitutional claims to overlap. See,
e.g., Loving, 388 U.S. at 12, 87 S. Ct. at 1823–24. One constitutional right
does not preempt another. See Albert, 42 Ariz. St. L.J. at 683; Schwartz
& Treanor, 112 Yale L.J. at 2410–11, 2410 n.407.
The rights-denying “could have” approach is no doubt more efficient.
It would be more efficient, of course, to hold all Fourth Amendment rights,
or all constitutional rights generally, unenforceable. But “[c]onvenience
and efficiency are not the primary objectives—or the hallmarks—of
democratic government.” Immigration & Naturalization Serv. v. Chadha,
462 U.S. 919, 944, 103 S. Ct. 2764, 2781 (1983). “[T]he mere fact that
law enforcement may be made more efficient can never by itself justify
disregard of” constitutional search and seizure requirements. Mincey v.
160
Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414 (1978). Maximum
simplicity is not a doctrine to override search and seizure protections. See
United States v. Chadwick, 433 U.S. 1, 6–11, 97 S. Ct. 2476, 2481–83
(1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565,
579, 111 S. Ct. 1982, 1991 (1991). Indeed, “[t]he very purpose of
constitutional provisions . . . is to prevent current practical considerations
from eviscerating ‘inalienable’ constitutional rights.” Gaskins, 866 N.W.2d
at 18 (Appel, J., concurring specially) (quoting Iowa Const. art I, § 1).
I think, however, simply returning to the test in Cooley, 229 N.W.2d
at 759, may not be the best approach. Good evidence of subjective
purpose, of course, is not always available. In addition, there may be
situations where there is mixed subjective motivation or even conflicting
subjective motivation. As a general proposition, a stop motivated in part
by an unlawful purpose but that would have been lawfully made in any
event does not give rise to a violation of article I, section 8.
The best approach under article I, section 8 to pretextual traffic
stops is to adopt a version of the “would have” test. I would do so today.
I would also adopt a burden-shifting approach as the best way to handle
the problem of pretext in our district courts.
Under the “would have” approach, once the State establishes it had
probable cause to engage in a stop, the burden shifts to the defendant to
produce evidence that the stop was pretextual. Objective and subjective
evidence would be admissible. 25 Heath, 929 A.2d at 402–03; Ochoa, 206
25The line between objective and subjective evidence is not as clear as some have
suggested. The showing required to justify Terry-type searches, for instance, is
sometimes claimed to be objective, but the “what did you know and when did you know
it” questions relevant under Terry obviously have subjective aspects. See Kit Kinports,
Criminal Procedure in Perspective, 98 J. Crim. L. & Criminology 71, 85–86 (2007); see also
R. George Wright, Objective and Subjective Tests in the Law, 16 U.N.H. L. Rev. 121, 121–
25 (2017) (asserting that the distinction between objective and subjective tests is
161
P.3d at 155–56. If the defendant makes a prima facie case that the stop
was in fact pretextual, the burden of proof shifts to the State to show that
the stop was not pretextual or that the stop would have occurred even
without the pretextual motivation. Heath, 929 A.2d at 402–03; Ochoa, 206
P.3d at 155–56. Because the State in a pretext case is seeking to offer
evidence obtained as a result of a warrantless seizure or search, the
burden of proof is on the State to show admissibility of the evidence.
The test I would adopt is somewhat similar to that embraced in Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97
S. Ct. 568 (1977). Mt. Healthy stands for the proposition that if a
government employee is fired for two reasons, one constitutional and one
not, the government may prevail by proving that it would have taken the
same action even in the absence of any unconstitutional motive. Id. at
285–87, 97 S. Ct. at 575–76.
Finally, I turn to the suggestion that our review of search and seizure
pretexts should be limited by the nature of the pretext. It would, perhaps,
be possible to limit search and seizure pretext review to cases involving
fundamental rights such as race, religion, or free speech. But I find such
an approach inadequate. It gives only partial life to the constitutional
principle that the power to search and seize should not be exercised in an
arbitrary manner. Pretextual investigative searches may be based not only
on race but upon “appearances that some police officers do not like, such
as young men with long hair, heavy jewelry, and flashy clothing.” Scopo,
19 F.3d at 786 (Newman, C.J., concurring). The search and seizure
provisions of article I, section 8 protect all citizens, even average Joes and
Sallys, who do not fall within a suspect class and are not exercising
incoherent and ultimately futile in practice). Under my approach, there is no need to
separate evidence by artificial categorization.
162
fundamental rights. The protections apply when persons are engaged in
the mundane tasks of life, like trips to the grocery store, as well as trips to
a political rally. They apply to all members of all races and ethnic groups.
I decline to withdraw protection from pretextual search and seizure based
on the subject matter involved.
D. Application of the “Would Have” Test in This Case. Applying
these principles to the facts of this case, I have little trouble concluding
that the stop was pretextual. The officer involved virtually said as much.
According to Officer Brandt, he “wasn’t even going to stop” the car for the
traffic violations until he ran the plate and learned of the owner’s gang
affiliation. After he learned of the gang affiliation, he then wanted to “poke
around and see what’s up.” He had a hunch based on the owner’s gang
affiliation, but that would not be a constitutionally sufficient basis for a
traffic stop. As a result, the evidence obtained as a result of the illegal
stop, namely, evidence of Brown’s intoxication, should have been
suppressed. Therefore, Brown’s conviction should be reversed and the
case remanded to the district court.
VII. Conclusion.
For the above reasons, the district court should have granted the
motion to suppress in this case. I regret that this view does not command
the support of the current majority of this court. Accordingly, I
respectfully dissent.
Wiggins, J., joins this dissent.
| {
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964 S.W.2d 531 (1998)
STATE ex rel. HELUJON, LTD., Appellant,
v.
JEFFERSON COUNTY, et al., Respondents.
No. 71532.
Missouri Court of Appeals, Eastern District, Division Three.
March 10, 1998.
*533 Robert Schultz, Mary B. Schultz, Descher & Schultz, St. Louis, for appellant.
Thomas B. Weaver, Timothy J. Tryniecki, St. Louis, for respondent.
AHRENS, Presiding Judge.
Helujon, Ltd. ("Helujon") appeals from a judgment upholding a Planned Unit Development *534 ("PUD")[1] zoning and denying its requests for declaratory and injunctive relief, administrative review, and for writs of certiorari and prohibition. We affirm and remand.
Kimmswick Properties, Inc. owns a 46.5 acre parcel of land ("subject property")[2] along the Mississippi River in an unincorporated area of Jefferson County, Missouri. Lady Luck Kimmswick, Inc. ("Lady Luck") has an option to lease the subject property for the purpose of developing and operating a gaming and hotel facility.
Helujon owns real estate abutting the subject property at its southern boundary. Helujon also owns numerous other parcels of real estate in and near the city of Kimmswick. Luciana Ross owns and is sole officer of Helujon. The Helujon real estate has never been developed. In fact, the corporate representative, Ms. Ross, testified the real estate was purchased in order to "protect the town as much as possible" from development. The city of Kimmswick is located within one and one-half miles of the southern boundary of the subject property.
Jefferson County approved riverboat gambling in 1993. Thereafter, the county commission issued a request for proposals for a riverboat gambling operation. Lady Luck submitted a proposal. On September 17, 1993, Lady Luck entered into a contract with Jefferson County. The Jefferson County Commission designated Lady Luck as the applicant for Jefferson County to the Missouri Gaming Commission for a riverboat gambling license.
On May 12, 1994, the Jefferson County Commission passed and approved an order which granted a PUD zoning of the subject property and approved a site plan for casino development. The Kimmswick Historical Society filed a lawsuit challenging the order. On October 24, 1994, Kimmswick Properties filed a second application for a PUD zoning and for approval of a preliminary site plan. The original lawsuit was dismissed as moot.
The staff of the Jefferson County Planning and Zoning Commission submitted a report to the planning and zoning commission, recommending approval of the requested rezoning and the preliminary site plan showing the proposed uses and concept, subject to certain conditions. The city of Kimmswick adopted a resolution protesting approval of the proposed casino development and mailed the protest to Jefferson County.
The planning and zoning commission considered the application for the PUD zoning at a public hearing on November 10, 1994. The mayor of Kimmswick presented Kimmswick's protest at the hearing. Despite the protest, the planning and zoning commission voted to recommend approval of the PUD zoning subject to the following conditions set forth in the staff report and one additional condition as follows:
1. The conditions set forth by the reporting agencies shall be followed.
2. A proposed set of covenants and restrictions to provide for continued maintenance of roadways and drainage improvements shall be submitted to the Planning Department.
3. The developer shall be required either to have all improvements in place or provide escrow for remaining improvements prior to approval of the final plat. The proposed future entrance to the site must be completed prior to occupation of the proposed hotel or the conduct of gambling operation.
4. A detailed traffic analysis must be submitted to the Jefferson County Planning and Zoning Department for review.
5. Prior to development the following must be obtained:
a. A floodplain development permit from Jefferson County
b. Any required permits from the U.S. Corps of Engineers
*535 c. Any required permits from Union Pacific Railroad
d. An entry permit from the Missouri Highway Department
6. A landscape buffer plan shall be submitted to the Planning and Zoning Department for review.
7. All issues of concern raised in the analysis of the preliminary plat must be resolved with the Planning and Zoning Department.
On November 29, 1994, the Jefferson County Commission unanimously passed a motion that the application be approved "with conditions and stipulations as issued in the forthcoming order." On December 15, 1994, the county commission approved Order No 12-15-94A ("rezoning order") by a vote of two to one. The rezoning order contains no express conditions.
In April 1995, Lady Luck cleared trees and shrubs from the subject property at a cost of $17,605.00 A residence on the site was moved off-site. The property was staked for the purpose of preparing a preliminary construction survey. Kimmswick Properties placed a construction trailer on the subject property at a cost of $12,000.00 to $15,000.00. The trailer has stood, unoccupied, since at least May 1995. It has since been vandalized. Water, sewer, gas and electricity running to the trailer were disconnected. No physical changes have occurred on the subject property since May 1, 1995.
Helujon brought this suit against Jefferson County and the Jefferson County Commission. Kimmswick Properties and Lady Luck intervened. The four-count petition sought: 1) a declaratory judgment holding the rezoning order illegal and invalid; 2) an injunction against development of the gaming facility; 3) administrative review; and 4) a writ of certiorari. On November 16, 1995, the trial court dismissed counts two, three, and four. Helujon later added counts seeking a declaratory judgment that the rezoning order had expired and a writ of prohibition to prohibit the issuance of any development permits.
Ms. Ross testified that she opposed the development because she felt it would have a bad effect on the restored town. She did not present evidence of any actual damages that would be suffered. Barry Hogue, an expert witness, testified the rezoning order was reasonable, consistent with Jefferson County's comprehensive development plan, and not likely to have any negative effect on the value of the surrounding property. Hogue testified that he based his opinion as to the reasonableness of the PUD zoning, in part, on the conditions recommended by the planning and zoning staff.
The trial court entered judgment against Helujon on all claims submitted at trial. The trial court declared the rezoning order to be valid, enforceable, and reasonable.
During oral arguments before this Court, counsel for Kimmswick Properties and Lady Luck stipulated that the planning and zoning commission's "conditions" applied to the county commission's approval of the rezoning order. By a letter to this court dated December 5, 1997, counsel of record for Jefferson County, the County Commission of Jefferson County, and the individual commissioners similarly stipulated that the conditions set out by the planning and zoning commission, in its recommendation for approval of the PUD zoning, apply to the rezoning order.
STANDARD OF REVIEW
The parties disagree on the appropriate standard of review. Helujon argues the county commission acted in an administrative capacity in approving both the PUD zoning and the preliminary site plan. Respondents argue the PUD zoning falls under the ambit of legislative zoning. The Western District addressed a similar issue in both Heidrich v. City of Lee's Summit, 916 S.W.2d 242 (Mo. App.1995) and McCarty v. City of Kansas City, 671 S.W.2d 790 (Mo.App.1984).
The power of a municipality or county to regulate land use is derived from the state police power as that power is delegated through the enactment of statutes. McCarty, 671 S.W.2d at 793. Missouri falls among the large group of jurisdictions that views the exercise of zoning power as a legislative function, rather than a quasi-judicial or *536 administrative function. Heidrich, 916 S.W.2d at 248.
Upon review, this Court may reverse a legislative action "only if arbitrary and unreasonable, meaning that the decision is not `fairly debatable.'" Heidrich, 916 S.W.2d at 248 (quoting Summit Ridge Dev. Co. v. Independence, 821 S.W.2d 516, 519 (Mo.App.1991)). If a decision bears no substantial relationship to the public health, safety, morals, or general welfare, this Court will consider it arbitrary and unreasonable. Heidrich, 916 S.W.2d at 248. Zoning ordinances are presumed valid, and uncertainty about the reasonableness of a zoning regulation must be resolved in the government's favor. Id. Additionally, when reviewing legislative actions, the scope of review is not limited to the record presented to the legislative body. Id.
Helujon argues that a PUD zoning classification differs from the traditional concept of Euclidian zoning because it contains non-legislative components, thus requiring an administrative standard of review. We agree with Helujon's assertion that not every act of a zoning authority is legislative. See Bowman v. Greene County Commission, 732 S.W.2d 223, 225 (Mo.App.1987). Helujon, however, did not cite a single authority to support its contention that approval of a PUD classification by a county commission is an administrative act.
This Court is aware that Helujon's argument, that approval of a PUD classification is an administrative act, is not completely ungrounded.[3] The PUD is a relatively recent zoning concept, representing a modern, flexible approach to progressive land use planning. McCarty, 671 S.W.2d at 793; City of Tuscaloosa v. Bryan, 505 So.2d 330, 335 (Ala. 1987). Nonetheless, it has been decided approval of a PUD classification is a zoning decision, requiring the same standard of review as the zoning or rezoning of an area. Bryan, 505 So.2d at 337; Peachtree Development Co. v. Paul, 67 Ohio St.2d 345, 423 N.E.2d 1087 (1981); Gray v. Trustees, Monclova Township, 38 Ohio St.2d 310, 313 N.E.2d 366 (1974).
Similarly, the Western District has treated approval of PUD classifications as rezoning, requiring a legislative standard of review. Heidrich, 916 S.W.2d at 248-49; McCarty, 671 S.W.2d at 793. The parties stipulated that the PUD classification "approved a change in the zoning classification of the subject property." Helujon's amended petition repeatedly alleges that the county commission effected "rezoning" or a "change in the zoning". Moreover, the prayer for relief in every count refers to the "rezoning". We agree with the Western District. Approval of a PUD classification is a legislative act of rezoning.
Helujon further contends the county commission acted in an administrative capacity when it approved the preliminary site plan, triggering at least in part an administrative standard of review. Typically, review and approval of a preliminary plat is administrative, not legislative. See State ex rel Schaefer v. Cleveland, 847 S.W.2d 867, 870 (Mo.App.1992); Basinger v. Boone County, 783 S.W.2d 496, 498 (Mo.App.1990). Neither Schaefer nor Basinger involve the submission of a site plan to obtain approval of a PUD zoning classification.
Unlike Euclidian zoning, approval of a PUD zoning classification is usually contingent on site plan approval. The plan gives the county commission full knowledge of what they are asked to approve before they grant a zone change. Without a site plan, the governing body charged with making a decision to grant a PUD zoning classification would be doing so in a vacuum. Frankland v. City of Lake Oswego, 267 Or. 452, 517 P.2d 1042, 1051 (1973).
When a legislative body approves a PUD zoning classification it also approves a site plan. This concept is supported by McCarty v. City of Kansas City, 671 S.W.2d *537 790 (Mo.App.1984) (holding an amendment to the approved development plan is the equivalent to rezoning). "[T]he zoning characteristics of the district consist not only in the classification of the district to [PUD] but in the components of the general plan accompanying the application for the creation of the district and any subsequent amendments to the plan that may be properly adopted." Id. at 796 (quoting Millbrae Association for Residential Survival v. City of Millbrae, 262 Cal.App.2d 222, 69 Cal.Rptr. 251, 268 (1968)).
The county commission's inclusion of site plan approval in its order does not mandate varying standards of review. The development plan is an integral part of the regulation because the zoning classification is adopted based on the improvements which the development plan describes. We view the approval of the PUD zoning classification as a legislative act encompassing the approval of the site plan or development plan. On appeal of a zoning decision, this Court reviews the judgment of the trial court de novo, but deference is accorded to the trial court's ability to assess credibility. J.R. Green Properties, Inc. v. City of Bridgeton, 825 S.W.2d 684, 686 (Mo.App.1992).
POINTS ON APPEAL
Helujon first contends the trial court erred in dismissing Counts II, III and IV of its First Amended Petition, in which Helujon sought to attack the rezoning order by way of injunction, administrative review, and a writ of certiorari, respectively. In reviewing a trial court's grant of a motion to dismiss, this Court allows the pleadings their broadest intendment, treats all allegations as true, and construes the allegations in a manner favorable to the plaintiff. West Central Missouri Regional Lodge No. 50 v. Board of Police Comm'rs., 939 S.W.2d 565, 566 (Mo. App.1997).
The trial court did not err in characterizing and reviewing the rezoning order as a legislative decision for the reasons stated above. Challenges to zoning, rezoning and refusals to rezone in Missouri must be by declaratory judgment or injunction. See Hoffman v. City of Town & Country, 831 S.W.2d 223 (Mo.App.1992). Helujon prayed for a declaratory judgment in Count I of its Amended Petition and that count was tried.
Judicial review and certiorari proceedings are available for the review of administrative actions. A certiorari proceeding is not an appropriate method for testing the validity of a legislative act such as a zoning or rezoning ordinance. State v. City of Raytown, 289 S.W.2d 153 (Mo.App.1956). Similarly, as a legislative act, rezoning is not subject to administrative review. Salameh v. County of Franklin, 767 S.W.2d 66, 68 (Mo. App.1989). Therefore, both Count III and Count IV failed to state a claim for relief as a matter of law. Both counts were properly dismissed.
Count II sought an injunction to prevent the "enforcement" of the rezoning order. We disagree with the respondent's argument that injunctive relief is always an improper remedy in contesting the validity of a legislative action. See H.Fichman Co., Inc. v. City of Kansas City, 800 S.W.2d 24, 27-28 (Mo.App.1990) ("An injunction may he to prohibit the enforcement of a City Ordinance"); Sanders v. City of Bridgeton, 703 S.W.2d 76 (Mo.App.1985); State ex rel. City of Maplewood v. Crandall, 569 S.W.2d 338, 340 (Mo.App.1978).
We, however, find Helujon suffered no prejudice by the dismissal of Count II. Lewis v. Wahl, 842 S.W.2d 82, 84-85 (Mo. banc 1992) (error must materially affect the merits of the case to reverse). The trial court addressed the same issues on the merits in entering judgment for all of the respondents on Count I, requesting a declaratory judgment. A right to injunction will lie only if the ordinance is found unconstitutional or invalid and its enforcement will result in an irreparable injury to a property right. Burnau v. Whitten, 642 S.W.2d 346 (Mo. banc 1982). The trial court's decision to strike the count requesting injunctive relief did not materially affect the merits of the action. See Benton v. City of Rolla, 872 S.W.2d 882 (Mo.App.1994). Point denied.
In its second point, Helujon contends the trial court erred by failing to render findings of fact on specific issues clearly *538 and unequivocally requested by Helujon. Rule 73.01(a)(3). Helujon argues these facts would be dispositive of the validity of the rezoning order, requiring remand for production of such findings. Hammons v. Ehney, 924 S.W.2d 843, 849 (Mo. banc 1996). A trial court is required to render findings of fact on controverted fact issues when properly requested. McMickle v. McMickle, 862 S.W.2d 477, 483 (Mo.App.1993). Reversal for failure to make requested findings of fact is appropriate only if the appellant is denied the opportunity for meaningful appellate review. Id. at 484.
Helujon requested that the trial court make findings of fact on whether the city of Kimmswick enacted a resolution objecting to the proposed casino development and whether it filed the protest with the county before the county commission approved the rezoning order. The trial court made the requested findings. Finding 23 states, that on June 14, 1994, the city of Kimmswick passed and approved a resolution, signed by the mayor of Kimmswick and the city clerk, and submitted to Jefferson County. The finding refers to Exhibit 18, which specifically states that Kimmswick protested the rezoning. It is undisputed that the protest was filed prior to approval of the rezoning order. The parties' stipulation states, under the heading "Chronology of Events Preceding Order No. 12-15-94A.", that Kimmswick's resolution was submitted to the county.
Helujon also requested a finding as to whether the county commission spread its reasons for approving the rezoning order on the record. For the reasons set out hereafter, the county commission was not required to spread its reasons on the record. Moreover, under our standard of review, the failure to do so does not hinder meaningful appellate review.
Additionally, Helujon requested findings as to whether the planning and zoning commission's recommendation was subject to conditions, and whether the county commission's approval was unconditional. This point is now moot in light of the respondents' stipulations that the conditions are part of the rezoning order.
In its third point, Helujon contends the county commission failed to abide by its own rules and regulations and state enabling legislation in enacting the rezoning order. Specifically, Helujon argues the county commission did not adopt the conditions set out in the planning and zoning commission's recommendation and the county commission failed to abide by the county's subdivision regulations, as well as Sections 64.245 and 64.830 RSMo.1994.
A county receives its authority to enact zoning regulations from the State of Missouri through enabling statutes. See State v. American Telephone & Telegraph Co., 280 S.W.2d 134, 137-38 (Mo.App.1955); State ex rel. Casey's General Stores, Inc. v. City Municipality of Louisiana, 734 S.W.2d 890, 895 (Mo.App.1987). If a county fails to comply with the enabling statute, its zoning action is void and unenforceable. Id. Similarly, requirements and procedures set out in the local zoning ordinance should be followed. See Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438, 441 (Mo.App.1989); State v. Arnold, 149 S.W.2d 384, 387 (Mo.App.1941).
The county zoning order in effect at the time the rezoning order was adopted by the county provides that "[n]o planned unit development shall be adopted without the affirmative recommendation of the planning and zoning commission." Helujon argues the planning and zoning commission's recommendation was expressly subject to certain enumerated, specific conditions, which the county commission failed to include in its rezoning order. This point is now moot in light of the respondents' stipulation that the conditions accompanying the affirmative recommendation of the planning and zoning commission now pertain to the rezoning order.
Similarly, Helujon argues the respondents failed to comply with the county's subdivision regulations and the state enabling statute for those regulations. Helujon believes the trial court erred in determining those regulations did not apply. We disagree.
The county commission is authorized to enact "subdivision regulations", relating primarily to the creation of new parcels of land *539 and secondarily to location and width of streets, building lines, lot sizes, and the like. Section 64.825 RSMo 1994. The county commission is empowered by a different section to prescribe zoning regulations, relating to "the height, number of stories, and size of buildings, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land for trade, industry, residence or other purposes." Section 64.850 RSMo 1994. The trial court specifically found the rezoning order does not constitute a "subdivision of land" within the meaning of Section 64.830. Helujon did not contest that finding. Helujon never alleged that any subdivision was created, modified, or extinguished by the rezoning order.
In its brief before this Court, Helujon argues for the first time that the county commission failed to adhere to Section 64.245 RSMo 1994 because the county commission effectively overruled a decision of the planning and zoning commission on a plat and did not spread its reasons for doing so upon the minutes. The county commission did not overrule a decision of the planning and zoning commission. Furthermore, Section 64.245 is a provision with terms similar to Section 64.830 RSMo 1994, but applicable only to counties that have not adopted the alternative planning and zoning scheme that is in force in Jefferson County. Arguments on substantive issues, raised for the first time on appeal, must be rejected. Artman v. State Bd. Of Registration for the Healing Arts, 918 S.W.2d 247, 252 (Mo. banc 1996).
Helujon also argues that Section 64.830 and the county subdivision regulations apply. If the council of any municipality files an objection to the approval of a plat, both Section 64.830 and the county subdivision regulations require a two-thirds vote of the county commission to approve the plat as well as the reasons for approval to be spread upon the records and certified to the planning and zoning commission. In the instant case, we find both Section 64.830 and the county subdivision regulations to be inapplicable.
Approval of the rezoning order did not trigger the requirements set out in Section 64.830 and the county subdivision regulations. These provisions are only applicable if there is to be a "subdivision" of land. The trial court correctly found that no "subdivision" of land was involved with the approval of this rezoning order.
In its reply brief, Helujon concedes no "subdivision" of land is involved. Helujon argues instead that "Section 2.3 of the County's Subdivision Regulations is not limited to `subdivisions.'" Section 2.3 states "no plat or subdivision of land" (emphasis added) may be filed unless there is compliance with the aforementioned county requirements. Helujon contends a plat was required because the subject property is to be used for non-residential purposes where the property was vacant. Art. II, Section 2.1(D), Jefferson County Subdivision Regulations. Definitions set out in the county subdivisions regulations support a finding the county subdivision regulations are not controlling in the instant case.
A plat is defined as "a map, plan or layout of a subdivision indicating to scale the location and boundaries of individual properties." Art. III, Section 3.2, Jefferson County Subdivision Regulations (emphasis added). Therefore, the term "plat" as used in Section 2.1 and 2.2 contemplates in each instance the subdivision of land. We find that the regulations are not applicable to the legislative action of zoning the land to a PUD, not involving a subdivision, merely because a site plan was approved by the county commission.[4]
Helujon directs us to the testimony of Jefferson County's planning director, who testified the subdivision regulations applied because there was a change in land use. Helujon relies on Eubanks v. Board of Adjustment, Kirkwood, 768 S.W.2d 624, 627 (Mo.App.1989), arguing we should defer to the interpretation of the county official charged with the day-to-day interpretation *540 and application of the regulations. We give consideration to the construction placed upon the statute by the county's planning director, but such construction is not binding on this court. See Moore v. State Tax Comm'n, 862 S.W.2d 407, 409 (Mo.App.1993); Hudson v. State Security Ins. Co., 555 S.W.2d 859, 861-62 (Mo.App.1977). The testimony of the county's planning director is contrary to the plain language of the statute and is therefore, rejected.
Helujon also contends the trial court erred in affirming the rezoning order because the county commission approved the rezoning order for reasons unrelated to those permitted in the state enabling statutes and the County's zoning order. The County's zoning order requires that there be "specific design benefits" to warrant the PUD zoning designation. Art. XVI, Section 11, Jefferson County Zoning Order. The state enabling statute authorizes the county to impose zoning regulations for the purpose of promoting health, safety, morals, comfort or general welfare. Section 64.850 RSMo 1994. Helujon claims the county commission approved the rezoning order on hopes for economic benefits to the County. The county commissioners voting in favor of the rezoning order did testify that a contract between Jefferson County and Lady Luck requires payments to Jefferson County of $350,000 annually. In addition, the two commissioners expressed hope that the County would benefit through increased employment and business revenue.
In the case of legislative rezoning, the reviewing court is not confined to nor concerned with the record made before the legislative body. Hoffman v. City of Town & Country, 831 S.W.2d 223, 224-25 (Mo.App.1992). The reasons for passing the rezoning order are not at issue. The reviewing court does not review the "record" before the legislative body. Heidrich v. City of Lee's Summit, 916 S.W.2d 242 (Mo.App. 1995). Instead, this Court independently assesses the validity of the zoning de novo. This Court is concerned only with the end result, namely whether the rezoning order is fairly debatable and reasonable. It is Helujon's burden to prove the rezoning order is not reasonable. J.R. Green, 825 S.W.2d at 686. Helujon did not meet this burden. Hogue testified that the rezoning order was reasonable. The trial court did not err in deciding Helujon offered no evidence that the rezoning order constituted inappropriate or unreasonable zoning or land use planning. The fact that the commissioners considered economic benefits is not decisive. "The pertinent inquiry is thus not what matters may have been literally or physically before the [Commission] or present in the lawmakers' minds...." Desloge v. St. Louis County, 431 S.W.2d 126, 132 (Mo.1968). Point denied.
Helujon also argues the rezoning order was rendered void by subsequent events. Helujon contends the trial court erred in finding "development" commenced within twelve months after approval of the rezoning order. Helujon further contends the trial court erred in upholding the rezoning order even after material changes in the development and the developer occurred.
The county zoning order requires that development of a PUD "start within twelve months" of its approval. Art. XVI, Section 6, Jefferson County Zoning Order. Helujon argues the limited physical changes to the site did not constitute "development" of the PUD. Within twelve months of approval, Lady Luck cleared the land of trees and shrubs at a cost of $17,605.00, removed a residence, and moved a construction trailer onto the site. None of these actions required a PUD, but could be viewed by the trial court as the start of development of a PUD. Additionally, the subject property was staked for the purpose of a construction survey to identify areas that could not be disturbed, such as wetlands and archaeological sites. Moreover, Lady Luck undertook engineering and designing of the project at a cost of $143,000.00 and received a flood plain development permit.
When a term in a zoning ordinance is capable of multiple interpretations, weight should be given to the interpretation which is least restrictive upon the rights of the property owner to use land as he or she wishes. St. Louis County v. Taggert, 866 S.W.2d 181, 182 (Mo.App.1993). Jefferson County's general *541 zoning order defines "development" as "the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any structure; excavation, landfill, or land disturbance; and any use or extension of the use of land." The trial judge could have determined the actions taken by Lady Luck fall within the parameters of that definition.
Other jurisdictions have viewed any substantial overt act as commencement of development because acts like removing shrubbery are a necessary preliminary to the overall project. Gulf Oil Corp. v. Vogel, 50 N.J.Super. 324, 142 A.2d 237, 238 (1958); See also City of Lincoln v. Townhouser, Inc., 248 Neb. 399, 534 N.W.2d 756 (1995); City of Ellsworth v. Doody, 629 A.2d 1221 (Me.1993). In the instant case it is irrelevant that the construction trailer has since been vandalized and the utilities have been disconnected.
We find Helujon's argument regarding material changes in the development plan and the developer since approval of the rezoning order equally unpersuasive. This argument is unsupported by any citation to authority and raised for the first time on appeal. Artman v. State Bd. Of Registration for the Healing Arts, 918 S.W.2d 247, 252 (Mo. banc 1996). We review for error. We find no error on the part of the trial court in that Helujon did not raise this point before the trial judge.
The judgment of the trial court is affirmed and the case remanded to the trial court with directions to remand the matter to the Jefferson County Commission for inclusion of the agreed upon conditions in the rezoning order.
CRANDALL and KAROHL, JJ., concur.
NOTES
[1] A PUD is a special zoning classification permitting a site to be developed under a unified plan that allows flexibility in development while providing the zoning authority with a great deal of control over the development.
[2] The subject property is in the Agricultural Rural-5 acres zoning district. The AR-5 zoning is broad enough to allow a variety of uses, including churches, cemeteries, slaughterhouses, lumber yards, and landfills.
[3] See McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn.1990) (resolution of city council granting planned unit development was an administrative action, for purposes of remedy of writ of certiorari); Peachtree Development Co. v. Paul, 67 Ohio St.2d 345, 423 N.E.2d 1087, 1094 (1981) (Brown, J., dissenting) (disagreeing with majority which held resolution approving a Community Unit Plan was a legislative act).
[4] In the instant case, we refrain from determining whether the subdivision regulations would be applicable upon approval of a PUD and site plan proposing subdivision of land.
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50 F.Supp.2d 46 (1999)
William R. FENOGLIO, Plaintiff,
v.
AUGAT, INC. and Thomas & Betts Corporation, Defendants.
No. Civ.A. 97-10012-PBS.
United States District Court, D. Massachusetts.
April 20, 1999.
*47 *48 *49 Michael Avery, Perkins, Smith & Cohen, Boston, MA, for William R. Fenoglio, plaintiff.
Carol R. Cohen, Davis, Malm & D'Agostine, P.C., Boston, MA, Scott E. Williams, Williams & Connolly, Washington, DC, Jonathan P. Graham, Washington, DC, for Augat, Inc., Thomas & Betts Corp., defendants.
MEMORANDUM AND ORDER
SARIS, District Judge.
I. Introduction
This case arises out of a protracted employment dispute between plaintiff, William Fenoglio, and co-defendants, Augat, Inc. ("Augat"), and Thomas & Betts Corporation ("T & B"). Fenoglio, the former Chief Executive Officer of Augat, asserts breach of an employment agreement (Count I); wrongful denial of benefits promised in a change in control agreement (Count II); wrongful denial of stock options to Fenoglio in violation of federal securities law (Count IV); and wrongful denial of stock options in violation of state securities law (Count V).[1] The parties agree that, under the express terms of the various agreements, Massachusetts law applies.
Plaintiff has filed a motion for partial summary judgment on Counts I and II of the Amended complaint. Defendants have moved for summary judgment on Counts I, II, IV, and V. After hearing and review of the supplemental submissions, the Court ALLOWS plaintiff's motion for partial summary judgment on Count I (in part), and on Count II. The Court ALLOWS defendants' motion for summary judgment on Counts I (in part), IV, and V.
II. Factual Background
Augat was a Massachusetts corporation that manufactured electronics equipment and components. After being selected as Augat's president and chief operating officer, Fenoglio entered into an employment agreement with Augat, dated August 29, 1994. At a later point, Fenoglio also became a member of the board of directors and chief executive officer.
The employment agreement outlined salary and benefits, including Fenoglio's participation in Augat's bonus and stock option plans. Employment Agreement, ¶¶ 3.2 - 3.7. The contract provided that either party could terminate without cause, upon at least six months' prior written notification. Employment Agreement, ¶ 4.4.[2] The contract further specified that, upon termination without cause, Fenoglio was entitled to "compensation which would otherwise be payable" up to the later of the third anniversary of the commencement date, or "twelve months from the date of termination of his employment." Employment Agreement, ¶ 5.1. However, *50 any of these payments would be reduced by any payments made under the Change of Control letter agreement dated September 6, 1994. Employment Agreement, ¶ 5.1.
On September 6, 1994, his first day of work at Augat, Fenoglio signed this change in control letter agreement which provided certain benefits to Fenoglio in the event he was terminated within three years of a change in control of Augat. Included among the change in control benefits were a lump sum payment of a multiple of Fenoglio's annual salary and highest bonus level, vesting of any outstanding stock options, and a prohibition on Augat's repurchase of outstanding restricted stock awards. Change in Control Agreement, ¶ 4(c). A clause in the change in control agreement provided that, if Fenoglio were "terminated for any reason and subsequently a Change in Control shall have occurred, [he] shall not be entitled to any benefits hereunder." Change in Control Agreement, ¶ 3(a).
Over the course of the employment relationship, Fenoglio received six Augat stock option grants pursuant to agreements under the company's 1994 and 1996 stock option plans. Two of these were incentive stock options; four were "non-qualified" options. The stock option plans and agreements all required that terminated employees exercise their options within three months of termination. The 1994 and 1996 stock option plans and all of Fenoglio's agreements (except the one dated December 20, 1994) also provided that members of Augat's board of directors have four-and-a-half years after termination or retirement from the board within which to exercise their options. See, e.g., Stock Option Plan, ¶ 6(f)(iv). Augat granted these stock options pursuant to stock option plans voted upon by the shareholders during annual shareholder meetings. Fenoglio presided over one such meeting on February 13, 1996, when the 1996 stock option plan was approved.
On July 16, 1996, Augat's Board of Directors voted to terminate Fenoglio's employment with the company. Fenoglio was informed orally by Augat board member John LeMasters, who replaced Fenoglio as CEO, that the Board had voted to terminate him. LeMasters offered him the opportunity to resign so that the separation would appear amicable from a public relations point of view. On the evening of July 16, 1996, Fenoglio was presented with a press release announcing his "resignation" that was to be distributed to media outlets. After a brief staff meeting on the morning of July 17, 1996, Fenoglio never returned to the Augat premises or performed any work for Augat. He did not publicly dispute the company's characterization that he had resigned.
After an exchange of letters regarding Fenoglio's severance from Augat, Fenoglio received a letter dated August 6, 1996, from LeMasters, which was accompanied by a "Schedule A" outlining the arrangements for the "separation compensation and benefits" approved by the board of directors. The letter states: "These arrangements are, of course, dependent on your timely agreement of [sic] the arrangements and receipt of one copy of the enclosed resignation letters concerning your former CEO and Board positions." (emphasis added). LeMasters concluded the letter on a friendly note, asking Fenoglio to get together so that "I can bring you up to date with activities of the company that I know you are still interested in as a shareholder."
The schedule contains three provisions relevant to this dispute. First, it states: "Although you have resigned as President and CEO effective July 16, 1996, Augat will pay your current compensation and benefits through your date of termination on January 16, 1997." Second, it provided that entitlement to change in control benefits "ends upon termination of your employment." Finally, and most significantly, the schedule stated: "This serves also as notice of termination of all other contracts between you and the Company requiring notice of termination, including *51 the September 6, 1994 Change in Control Agreement." (emphasis added).
On October 6, 1996, Augat's board voted to pursue a merger with T & B, a Tennessee electronics firm. The merger, which qualified as a change in control for purposes of the change in control agreement, was finalized on December 11, 1996. Fenoglio filed this lawsuit on January 3, 1997. Through April 24, 1997, Augat paid Fenoglio his full salary, provided health coverage, reimbursed expenses, allowed Fenoglio to contribute to Augat's 401(k) pension plan, and made payments to that plan on his behalf. Fenoglio attempted unsuccessfully to exercise his stock options on May 20, 1997, and again on June 30, 1997.
III. Discussion
A. Standard
A motion for summary judgment shall be allowed 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).
The moving party bears the initial burden, which may be satisfied by pointing to the absence of adequate evidence supporting the nonmoving party's case. See Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has met this burden, the nonmoving party must present specific facts demonstrating a genuine issue for trial, see Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.1997), and may not merely "rest upon mere allegation or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Fed. R.Civ.P. 56(e)).
"The trial court must view all facts and draw all inferences in the light most favorable to the nonmoving party." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997) (citation omitted). "When deciding cross-motions for summary judgment, the court must consider each motion separately, drawing inferences against each movant in turn." Id. (citing Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996)).
B. COUNT I: BREACH OF EMPLOYMENT CONTRACT
1. Contract Interpretation
Under Massachusetts law, interpretation of a contract is generally a question of law. See Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1122 (1st Cir. 1995); Edmonds v. United States, 642 F.2d 877, 881 (1st Cir.1981); Freelander v. G. & K. Realty Corp., 357 Mass. 512, 516, 258 N.E.2d 786 (1970).
"[T]he question of whether a contract term is ambiguous is one of law for the judge." NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32 (1st Cir.1994) (citing FDIC v. Singh, 977 F.2d 18, 22 (1st Cir.1992)). "`When ... the words [of a contract] are plain and free from ambiguity they must be construed in their usual and ordinary sense.'" National Medical Care, Inc. v. Zigelbaum, 18 Mass.App.Ct. 570, 575, 468 N.E.2d 868, rev. denied, 393 Mass. 1104, 471 N.E.2d 1354 (1984) (construing a termination clause in an employment contract) (quotation omitted). In the absence of ambiguity, no question of material fact remains for the jury. See O'Connell Mgmt. Co. v. Carlyle-XIII Managers, Inc., 765 F.Supp. 779, 782-83 (D.Mass. 1991).
However, if the wording of a contract is ambiguous, a question of fact for the jury may exist, see Baybank Middlesex v. 1200 Beacon Properties, Inc., 760 F.Supp. 957, 963 (D.Mass.1991), unless "the evidence presented about the parties' intended meaning may be so one-sided that no reasonable person could decide the contrary," Boston Five Cents Sav. Bank v. Secretary of the Dept. of Housing & Urban Dev., 768 F.2d 5, 8 (1st Cir.1985); see *52 also Allen v. Adage, Inc., 967 F.2d 695, 698-99 (1st Cir.1992).
2. Effective Date of Termination
A "[c]lassic terminable at will employment contract," like the employment agreement at issue, "reserves to the parties an explicit power to terminate the contract without cause on written notice." Fortune v. National Cash Register Co., 373 Mass. 96, 101, 364 N.E.2d 1251 (1977). Where the language of a termination clause is explicit, it must be enforced according to its terms. See Zigelbaum, 18 Mass.App.Ct. at 575, 468 N.E.2d 868. A court "cannot rewrite the contract to cure an oversight or relieve a party from the consequences of the failure to adhere to its terms." Id. at 575-76, 468 N.E.2d 868. When notice is required, "the contract remains in force and must continue to be performed according to its terms during the specified period after receipt of the notice of termination." 6 Corbin on Contracts, § 1266, at 66 (1963).
The parties disagree on the effective date of termination under the Employment Agreement. The termination clause of the employment agreement between Augat and Fenoglio requires "six months' prior written notice of termination." Employment Contract, ¶ 4.4. Fenoglio contends that Augat provided him with written notice of termination in a letter dated August 6, 1996, which results in an effective date of termination of February 6, 1997. Defendants concede that Augat breached Fenoglio's employment contract by firing him without prior written notice, but argue that his only remedy is contractual damages and he is not entitled to extend his employment after his termination. In this argument, defendants miss the main point of Zigelbaum. While Augat had the unfettered right to terminate Fenoglio, the only effective act of termination was providing written notice six months prior to the effective date of termination.
The next issue is to pinpoint the date of the written notice. The oral notice to Fenoglio after the vote of the Board of Directors on July 16, 1997, was ineffective as a notice of termination. Arguably, the written press release that Fenoglio was handed that day could be deemed the written notice of termination. However, the draft press release masking a termination as a "resignation" for public relations reasons was not designed to serve that purpose. Even Augat seemed to believe it needed a written notice, as indicated by its course of conduct in sending out the August 6, 1996, letter. Also, in this litigation, defendants' counsel have not pressed me to deem the release the written notice.
Defendants do insist that the August 6, 1996, letter was merely a "proposal" for settlement (excludable as evidence under Fed.R.Evid. 408) rather than a notice of termination. Although the evidence suggests that this may be a fair characterization of certain listed terms governing separation compensation and benefits, which might be excludable as evidence of liability pursuant to Fed.R.Evid. 408, the notice portion is written as a fiat, not a settlement proposal. The letter stated quite clearly and unconditionally it was the written notice of termination of the employment agreement.[3]
A determination that the August 6, 1996, letter serves as the written notice of termination only partially resolves the parties' dispute. The next issue is whether Augat's conduct extended the effective date of termination. Plaintiff asserts that April 25, 1997, is the effective date of termination because, until that date, he was paid full salary and benefits, including benefits restricted to employees, such as the 401(k) matching plan. The employment agreement provided that it could be *53 "amended or modified only by a written instrument executed by both the company and the employee." Employment Agreement, ¶ 12. No such writing existed here. However, evidence relating to an oral modification of a contract is admissible notwithstanding a contractual provision that none of the terms of a contract may be altered or waived except by written instrument. See Staples Coal Co. v. Ucello, 333 Mass. 464, 468, 131 N.E.2d 763 (1956).
Plaintiff heavily relies on the continued payments as evidence of such a modification. However, defendants point out that as his employment was terminated at the election of the company, he was entitled to compensation and benefits (including retirement fringe benefits)[4] under the termination clause providing for compensation for at least one year after the effective date of termination. Employment Agreement ¶¶ 3.3, 5.1. Whether that trigger date was July 16, January 16, or February 6, Fenoglio was entitled to most or all of those payments under the termination clause. Therefore, the mere payment of benefits after the effective date of termination does not signal an agreement to extend that date.
The record supports defendants' argument that these benefits are best characterized as severance benefits which do not extend the term of employment. See, e.g., Shah v. Nu-Kote Int'l, 898 F.Supp. 496, 504-06 (E.D.Mich.1995), aff'd, 106 F.3d 401 (6th Cir.1997) (mem.); Feola v. Valmont Indus., 208 Neb. 527, 304 N.W.2d 377, 383-84 (1981); Compton v. Shopko Stores, Inc., 93 Wis.2d 613, 287 N.W.2d 720, 723-25 (1980) ("[S]everance pay does not extend the employment period, but terminates it."). Also, the evidence that the payroll records document April 25, 1997, as "Date Terminated" is insufficient to support an oral modification of the effective date of termination, because it is undisputed factually that April 25, 1997, is the date when the payments were terminated.
Based on the August 6, 1996, written notice of termination, the effective date of termination under the contract is six months from that date, or February 6, 1997.[5]
3. Breach of Employment Agreement
a. Bonus
Defendants argue that Fenoglio is not entitled to bonuses for 1996 because he was not actually working at the time the bonuses were paid as is required by the bonus plans. Fenoglio disagrees, arguing that the bonuses were paid prior to the effective date of his termination on February 6, 1997.
In the Employment Agreement, "Bonuses" is listed under the heading "Compensation and Benefits," along with "Salary" and "Fringe Benefits." Employment Agreement, ¶ 3. In reference to bonuses, the employment agreement states that Fenoglio "shall be entitled to participate in bonus plans adopted by the Board." Employment Agreement, ¶ 3.2. However, all of the bonus plans specifically state that "[e]mployees must be actively employed at the time bonuses are paid to receive payment." (emphasis added).
"Plain words are to be given their plain meaning where no inconsistency results or there is no controlling indication in the instrument of other intent." Forte v. Caruso, 336 Mass. 476, 480, 146 N.E.2d 501 (1957) (citations omitted); see also *54 Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1084 (1st Cir.1989) ("Where possible, words should be given their natural meaning, consistent with the tenor of contractual terms."). The plain or natural meaning of "active" leads this Court to the conclusion that there is a distinction between "employed" or "under contract" and "actively employed." See Webster's College Dictionary 14 (1992) (defining "active" as "characterized by current activity, participation, or use").
After his July 16, 1996, conversation with John LeMasters, Fenoglio left Augat and never resumed his duties at the company. Although, by the terms of the employment agreement, Fenoglio technically may have been "employed" between the August 6, 1996, notice of termination and the February 6, 1997, effective date of termination, he certainly was not "actively employed" under the plain meaning of the phrase. A contract must not, whenever possible, be construed so as to render any of its terms meaningless. See Shea v. Bay State Gas Co., 383 Mass. 218, 225, 418 N.E.2d 597 (1981). To conclude that Fenoglio was eligible for the December 1996 bonus distribution would render the word "actively" in the bonus plans meaningless. Because Mr. Fenoglio was not actively employed in December 1996, when the 1996 bonuses were distributed, he is not entitled to a bonus for that year.
b. Failure To Comply with Notice Provisions
Plaintiff also claims that Augat breached the employment agreement because the written notice was sent by regular mail rather than registered or certified mail as is provided for in ¶ 9 of the Employment Agreement. However, he concedes that he received written notice, albeit by regular mail, in the August 6, 1996, letter. Massachusetts courts have recognized that "`the function of a requirement that notice be transmitted by registered mail is to provide a means of resolving disputes as to the fact of delivery of the notice.'" Computune, Inc. v. Tocio, 44 Mass.App.Ct. 489, 493, 691 N.E.2d 994 (1998) (quoting Gerson Realty, Inc. v. Casaly, 2 Mass.App.Ct. 875, 875, 316 N.E.2d 767 (1974)); cf. Cinder Products Corp. v. Schena Constr. Co., Inc., 22 Mass.App.Ct. 927, 929, 492 N.E.2d 744 (1986) (dealing with statutory requirement of notice by certified mail). Therefore, any breach is immaterial. See id.
c. Failure to Pay Post-Termination Compensation
Plaintiff asserts that he is owed post-termination compensation through April 25, 1998. As discussed above, the effective date of termination was February 6, 1997. After his effective date of termination, Augat was required to pay Fenoglio "the compensation which would otherwise be payable to [Fenoglio] up to the last date to occur of (a) three years from the Commencement Date or (b) twelve months from the date of termination of his employment." Employment Agreement, ¶ 5.1. The latter of these two dates is February 6, 1998. Therefore, defendants are responsible, under ¶ 5.1 of the Employment Agreement, only for post-termination payments through February 6, 1998.
d. Vesting of Stock Options
Under Augat's 1994 and 1996 Stock Plans, Fenoglio received a number of options. At issue are eight lots of Augat stock options that vested over a two-year period under an August 1994 Incentive Stock Option Agreement and December 1994 and 1995 Non-Statutory Stock Option Agreements. Fenoglio attempted to exercise these options on May 20, 1997, and again on June 30, 1997, more than three months after the effective date of termination on February 6, 1997. He argues that, as a director of Augat, he has four-and-a-half years after termination in which to exercise his options, under both the stock plans and the stock agreements. Defendants argue that, as an employee, Fenoglio only had three months. Resolution *55 of this dispute begins with the contract language.
The 1994 and 1996 Stock Plans require Augat employees to exercise their options within three months of termination:
[T]he option may be exercised within the period of three months after the date the optionee ceases to be an employee of the Company....
1994 and 1996 Stock Plans, at ¶ 6(f). They also provide that directors of Augat have four-and-a-half years after termination to exercise the options:
[I]f the optionee is a director of the Company, ... the option may be exercised within the period of four and one-half years after the date of the optionee's termination or retirement as a director.
1994 and 1996 Stock Plans, at ¶ 6(f)(iv).
The incentive and non-statutory stock option agreements,[6] which granted options to Fenoglio pursuant to the 1994 and 1996 Stock Plans, contain a more detailed provision:
(d) Exercise Period Upon Termination of Employment. If the Optionee ceases to be employed by the Company for any reason, then, except as provided in paragraphs (e), (f), (g) and (h) below, the right to exercise this option shall terminate three (3) months after such cessation (but in no event after the Expiration Date), provided that this option shall be exercisable only to the extent that the Optionee was entitled to exercise this option on the date of such cessation, and provided further that if such exercise (as provided in paragraphs (e), (f), (g) and (h) below) is subsequent to the period of three months after such cessation, this option shall be treated as a non-statutory option which does not meet the requirements of Section 422 of the Code.
¶ 3(d). Paragraph 3(h), which is one of the exceptions to the three month exercisability rule, specifies that directors of Augat have four-and-a-half years after termination to exercise the options:
If the Optionee is a director of the Company ... and the Optionee ceases to be a director (other than as the result of a termination of such relationship by the Company "for cause" as specified by paragraph (g) above) this option shall be exercisable, within the period of four and one-half years after the date of the Optionee's termination or retirement as a director.
Stock Option Agreements, at ¶ 3(h). Paragraph (g) of the agreements discusses "cessation of employment" for cause.
Defendants contend that the language in those documents allowing the longer period of exercisablity does not apply to employees who are also directors. In support of this argument, they rely on extrinsic evidence. First, they point to Fenoglio's deposition, in which he conceded that he received the stock options in his capacity as an employee, not as a director, and had only three months to exercise the options.[7] Fenoglio Dep. II, at 16, 29. Second, they rely on evidence that in both the 1994 and 1996 proxy statements, Augat's shareholders voted:
An optionee may exercise the option, to the extent vested, up to three months after the optionee ceases to be an employee or up to ... four and one-half years after the date of optionee's termination or retirement from the Board of Directors in the case of mandated options to non-employee directors.
Brandishing this proxy language, defendants argue that Augat's shareholders approved a four-and-a-half year window in only one situation when non-employee directors received mandated options and that they intended that employee directors *56 be governed by the three-month provision.[8]
In rebuttal, Fenoglio points to evidence that other employee directors were informed that they had four-and-a-half years to exercise their options. Defendants retort that those employee directors, in fact, exercised their options within three months of termination. The affidavits concerning the defendants' course of conduct with respect to employee directors are conflicting.
The Court need not wade through this swampy extrinsic evidence, because the stock option agreements are not ambiguous. They plainly provide in paragraphs 3(d) that an employee has three months after his termination to exercise his option unless paragraph 3(h) governing directors applies. Any lurking doubt that paragraph 3(h) does not apply to employee directors is dispelled by its reference to paragraph 3(g) governing termination of employment for cause.
The defendants' motion for summary judgment is DENIED on this point.[9] Plaintiff's motion is ALLOWED.
C. COUNT II: CHANGE IN CONTROL BENEFITS
Both parties have moved for summary judgment on the question whether Fenoglio is entitled to benefits under the Change in Control Agreement. The Change in Control Agreement provides that if an employee "is terminated for any reason and subsequently a Change in Control shall have occurred, [he] shall not be entitled to any benefits hereunder." ¶ 3(a) (emphasis added). It also states:
Any termination by the Company or by you following a Change in Control of the Company during the Term shall be communicated by written notice of termination (`Notice of Termination') to the other party hereto in accordance with Section 6. The `Date of Termination' shall mean the effective date of such termination as specified in the Notice of Termination.
Id. (emphasis added).
Fenoglio was given written "notice" of his termination on August 6, 1996, four months before the December 1996 change in control. Fenoglio's "effective date" of termination as specified in the notice was January 16, after the change in control. At issue here is whether Fenoglio was terminated by defendant(s) following a change in control, or before it. Put another way, under the Change in Control agreement, does an employee who has been given a "notice of termination" prior to the change in control have a contractual right to benefits where the effective date of termination is after the change in control?
Although the issue is a difficult one, I conclude that the answer is yes for the following two reasons. First, the Change in Control Agreement itself expressly distinguishes between a notice of termination and an effective date of termination. Second, these provisions parallel the notice and effective date of termination referred to in the Employment Agreement. Employment Agreement, ¶ 4. This is hardly surprising, as the Employment Agreement expressly references the Change in Control Agreement when it conditions the amount of payments upon termination on benefits due under the Change in Control Agreement. Employment Agreement, ¶ 5.1. Separate instruments in the same transaction may be read together when, for example, the instruments are executed simultaneously, cross-reference one another, affect the same subject matter and parties, and have interdependent *57 provisions. See ICC v. Holmes Transp., Inc., 983 F.2d 1122, 1126 (1st Cir.1993); Chelsea Indus., Inc. v. Florence, 358 Mass. 50, 55-56, 260 N.E.2d 732 (1970); Gilmore v. Century Bank & Trust Co., 20 Mass.App.Ct. 49, 56, 477 N.E.2d 1069 (1985).
Defendants argue that the contractual provision is ambiguous in meaning and this Court should look to the preamble as extraneous evidence for guidance. Preliminary language, such as recitals in a preamble "may properly be considered in construing an ambiguous provision in an agreement." Cullinet Software, Inc. v. McCormack & Dodge Corp., 400 Mass. 775, 776 n. 1, 511 N.E.2d 1101 (1987) (citing Henry G. Meigs, Inc. v. Empire Petroleum Co., 273 F.2d 424, 428 (7th Cir. 1960)); see also Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 404-05 (11th Cir.1989) (affirming a district court which, applying Florida law, considered the preamble of a change in control agreement to determine the meaning of "termination"); Nassif v. Boston and Maine Railroad, 340 Mass. 557, 563, 165 N.E.2d 397, 401 (1960) (stating that "recitals of [a] preamble may be used to assist in interpreting other parts of the contract").
The purpose underlying the change in control agreement can be found in its preamble: "to reinforce and encourage the continued attention and dedication of the Company's management ... to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a change in control of the Company." Change in Control Agreement, at 1 (emphasis added). Payment of benefits to a person who is technically an employee, but not actively one, makes little sense in light of this goal. However, the preamble cannot change the basic terms of the contract. See Boston Edison Co. v. F.E.R.C., 856 F.2d 361, 365 (1st Cir.1988) (holding that "[a]ll the circumstances of the parties leading to its execution may be shown for the purpose of elucidating, but not of contradicting or changing its terms") (quoting Robert Indus., Inc. v. Spence, 362 Mass. 751, 753-54, 291 N.E.2d 407 (1973)).
However, even if the termination provision were to be considered ambiguous in these circumstances, defendants do not prevail. "Massachusetts law construes ambiguous contractual language against the drafter." ER Holdings, Inc. v. Norton Co., 735 F.Supp. 1094, 1100 (D.Mass.1990) (citations omitted) (applying Massachusetts law). "Indeed, the drafter of an ambiguous contractual term is generally held to any reasonable interpretation attributed to it by the nondrafting party." Id. (citing Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721, 724, 363 N.E.2d 688 (1977)). One reasonable interpretation is that Fenoglio was entitled to Change in Control benefits until his effective date of termination. Buttressing the reasonableness of this interpretation is the fact that the August 6, 1996, written termination notice expressly refers to the Change in Control Agreement. The final line of Schedule A reads: "This serves also as notice of termination of all other contracts between you and the Company requiring notice of termination, including the September 6, 1994 Change in Control Agreement." Although Fenoglio did not perform any duties after July 16, 1996, the effective date of his termination for purposes of the Change in Control Agreement was February 6, 1997.
Finally, although the language in the preamble suggests that the intent of the parties was to encourage actively employed members of management, the language in the Change of Control Agreement did not use the words "actively employed." The omission of this language, when contrasted with its use in the bonus agreement, lends weight to the plaintiff's interpretation.
Because the merger of Augat and T & B was consummated on December 11, 1996, and preceded the effective date of termination, plaintiff is entitled to the benefits outlined in the Change in Control agreement.
*58 D. COUNTS IV and V: FEDERAL AND STATE SECURITIES FRAUD
1. Federal Securities Fraud Claim
Plaintiff alleges that defendants made misrepresentations regarding his ability to exercise stock options and his right to restricted stock, in violation of section 10(b) of the 1934 Act.
"To state a claim for a direct violation of section 10(b), a plaintiff must allege (1) a misrepresentation or omission of a material fact in connection with the purchase or sale of a security; (2) scienter; (3) reliance/causation; and (4) damages." Van De Velde v. Coopers & Lybrand, 899 F.Supp. 731, 734 (D.Mass.1995); see also 15 U.S.C. § 78j(b); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1217 (1st Cir.1996).
Section 10(b) "extend[s] only to frauds and misrepresentation `in connection with' the purchase or sale of the securities." Wittenberg v. Continental Real Estate Partners, 478 F.Supp. 504, 509 (D.Mass.1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 731, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)). Stock options qualify as "securities" for purposes of the 1934 Act. See Collins v. Rukin, 342 F.Supp. 1282, 1287 (D.Mass. 1972) ("[F]raudulent representations as to securities not yet purchased by the recipient of a stock option are subject to the same federal prohibition as fraudulent representations as to securities whose sale is actually consummated.").
Plaintiff's securities fraud claim fails to pass muster for a number of reasons. First, the Amended Complaint fails to allege the misrepresentations with the particularity required by Fed.R.Civ.P. 9(b), which requires that, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." See also Doyle v. Hasbro, Inc., 103 F.3d 186, 193-94 (1st Cir.1996). The Amended Complaint (¶ 35) states: "Defendants misrepresented the status, validity and exercisability of plaintiff's stock options and misled plaintiff with respect to his ability to exercise options, at the latest, after the merger and change of control, as set forth in the Merger Plan adopted by the Joint Proxy Statement." Creative reading of the Amended Complaint might indicate that plaintiff is complaining about the joint proxy statement. However, the joint proxy statement included Fenoglio as among those entitled to restricted stock units and to stock options as a result of the change in control. As Fenoglio agrees with these statements, he is hard-pressed to call them misrepresentations. During the briefing, Fenoglio complains about a deceptive course of conduct designed to lull him into missing the deadline for exercising his options. However, this claim is not well-pled.
Second, even if the November 7, 1996, proxy statement issued jointly by Augat and T & B contained misrepresentations as to Fenoglio's eligibility to exercise stock options, there is no evidence that it was issued with the requisite scienter. In securities fraud actions, summary judgment for the defendant is appropriate if the plaintiff merely "rests on the allegations in his pleadings and fails to submit `any probative evidence, by affidavit or otherwise, to establish a genuine issue of material fact ... as to scienter.'" Kirby v. Cullinet Software, Inc., 721 F.Supp. 1444, 1448 (D.Mass.1989) (quoting Bryson v. Royal Bus. Group, 763 F.2d 491, 494 (1st Cir. 1985)).
To satisfy the scienter requirement of Rule 10b-5, plaintiffs must prove "an intent to deceive, manipulate, or defraud." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In addition, the First Circuit has assumed, without deciding, that recklessness would suffice for liability under section 10(b). See Hoffman v. Estabrook & Co., 587 F.2d 509, 516 (1st Cir.1978); Cook v. Avien, 573 F.2d 685, 692 (1st Cir. 1978). There is not a scintilla of scienter. *59 Plaintiff himself believed that the stock option provisions only gave him three months. The evidence demonstrates rampant confusion as to when stock options had to be exercised by employee-directors. Accordingly, any dispute over their meaning cannot support a claim of securities fraud.
Third, the litigation began on January 7, 1997, and before that, negotiations with plaintiff, who was represented by counsel, were intense. There is no admissible evidence to demonstrate justifiable reliance by plaintiff on the joint proxy statement. Although defendants did object to honoring Fenoglio's request to exercise the options, it did so on timeliness grounds, not lack of eligibility. With respect to the restricted stock options, there is no evidence that Fenoglio detrimentally relied upon the proxy statement with respect to the exercise of options.
Defendant's Motion for Summary Judgment on Count IV is easily ALLOWED.
2. Massachusetts Securities Fraud Claim
Plaintiff further alleges that defendants violated Mass.Gen.L. ch. 110A, §§ 101, 410(a)(2). Only section 410(a)(2) provides a private right of action. Courts have consistently held that there is no private right of action under Mass.Gen.L. ch. 110A, § 101. See Arent v. Shearson/American Express, Inc., 633 F.Supp. 770, 775 (D.Mass.1985); Cabot Corp. v. Baddour, 394 Mass. 720, 724 n. 3, 477 N.E.2d 399 (1985).
These provisions of the Massachusetts blue sky law are "substantially similar to the federal securities laws and therefore decisions construing the federal statutory language are applicable to the state statute as well." Adams v. Hyannis Harborview, Inc., 838 F.Supp. 676, 684 n. 9 (D.Mass.1993); see also Margaret Hall Found., Inc. v. Atlantic Fin. Management, Inc., 572 F.Supp. 1475, 1483 (D.Mass.1983).
The only material difference between the federal and Massachusetts laws is that, unlike the intent or recklessness scienter requirement of the federal law, § 410(a)(2) requires only negligence on the part of the defendant. See Hyannis Harborview, Inc., 838 F.Supp. at 694; cf. Cabot Corp., 394 Mass. at 726 n. 6, 477 N.E.2d 399. However, as discussed above, plaintiff has failed to present evidence that there was any negligent misstatement in the proxy statement or that any misstatement caused Fenoglio any damages. Defendants' Motion for Summary Judgment on Count V is ALLOWED.
IV. ORDER
Plaintiff's Motion for Partial Summary Judgment is ALLOWED on Count I (in part) and Count II. Defendants' Motion for Summary Judgment is ALLOWED on Counts I (in part), IV, and V.
NOTES
[1] Fenoglio voluntarily dropped Count III for breach of an oral agreement concerning benefits due under the change in control agreement.
[2] Paragraph 4 provides in relevant part:
4. Employment termination. The employment of the Employee by the Company pursuant to this Agreement shall terminate upon the occurrence of any of the following:
. . . . .
4.4 At the election of either party, upon not less than six months' prior written notice of termination.
[3] As a practical matter, even if the press release were deemed the written notice, only three weeks of benefits (January 6 to February 3) are at stake. None of the other contract issues turns on this point.
[4] Defendants refer to Fenoglio's inclusion in the 401(k) plan as inadvertent. This suggests that Fenoglio was not entitled to the 401(k) benefits as retirement fringe benefits after the effective date of termination. The record is not clear on this point.
[5] The schedule attached to the August 6, 1996, letter sets the date of termination at January 16, 1997. However, under the contract, the effective date is six months from the date of written notice, or February 6, 1997. A unilateral effort to shorten that contractual period cannot serve to modify a provision in the contract.
[6] The 50,000 share Non-Statutory Stock Option Agreement, dated December 20, 1994 (option No. 001602), does not have a four-and-a-half year provision for directors but requires notification within three months of the cessation of employment.
[7] After a recess, he retracted that admission.
[8] Incentive stock options can only be granted to employees. It is not clear whether non-employee directors can get non-statutory stock option agreements.
[9] As pointed out above, option no. 006102 has no provision for directors and, thus, was waived for failure to exercise within three months of the termination of plaintiff's employment with Augat.
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Case: 15-10018 Date Filed: 08/11/2015 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10018
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00057-WS-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM E. JACKSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 11, 2015)
Before HULL, ROSENBAUM and ANDERSON, Circuit Judges.
PER CURIAM:
William Gregory Hughes, appointed counsel for William E. Jackson in this
direct criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967). Our independent review of the entire record
Case: 15-10018 Date Filed: 08/11/2015 Page: 2 of 2
reveals that counsel’s assessment of the relative merit of the appeal is correct.
Because independent examination of the entire record reveals no arguable issues of
merit, counsel’s motion to withdraw is GRANTED, and Jackson’s conviction and
sentence are AFFIRMED.
2
| {
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} |
United States Court of Appeals,
Eleventh Circuit.
No. 94-6400.
JEFFERSON COUNTY, a political subdivision of the State of Alabama, Plaintiff-Appellant,
v.
William M. ACKER, Jr., Defendant-Appellee.
JEFFERSON COUNTY, a political subdivision of the State of Alabama, Plaintiff-Appellant,
v.
U.W. CLEMON, Defendant-Appellee.
March 27, 1998.
Appeal from the United States District Court for the Northern District of Alabama. Nos. CV93-M-
69-S, CV93-M-196-S), Charles a. Moye, Judge.
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES and BARKETT, Circuit Judges,* and HENDERSON and
KRAVITCH**, Senior Circuit Judges.
COX, Circuit Judge:
The issue presented by this case is whether Jefferson County, Alabama may require Article
III judges to pay a tax for the privilege of engaging in their occupation within the county. In our
earlier en banc opinion1 we affirmed the district court's grant of summary judgment for the
defendants, holding that the tax violates the Supremacy Clause of the Constitution. The Supreme
*
Judges Frank M. Hull and Stanley Marcus became members of the court after this case was
argued and taken under submission. They elected not to participate in this decision.
**
Senior U.S. Circuit Judges Henderson and Kravitch elected to participate in this decision
pursuant to 28 U.S.C. § 46(c).
1
Jefferson County v. Acker, 92 F.3d 1561 (11th Cir.1996) (en banc).
Court vacated our judgment and remanded the case for reconsideration in light of its recent decision
in Arkansas v. Farm Credit Services, --- U.S. ----, 117 S.Ct. 1776, 138 L.Ed.2d 34 (1997), directing
us to consider the effect of the Tax Injunction Act, 28 U.S.C. § 1341, on federal jurisdiction in this
case. Upon reconsideration we hold that the district court had jurisdiction and reinstate our en banc
opinion on the merits.
I. BACKGROUND2
Jefferson County Ordinance No. 1120 imposes a tax on persons not otherwise required to
pay a license or privilege tax to the State of Alabama or Jefferson County. It states in pertinent part:
It shall be unlawful for any person to engage in or follow any vocation, [etc.], within the
County ... without paying license fees to the County for the privilege of engaging in or
following such vocation, [etc.], which license fees shall be measured by one-half percent
(1/2%) of the gross receipts of each such person.
Jefferson County, Ala., Ordinance No. 1120, § 2 (Sept. 29, 1987). Defendants William M. Acker,
Jr. and U.W. Clemon are United States District Judges for the Northern District of Alabama who
maintain their principal offices in Birmingham, the Jefferson County seat. They refused to pay the
privilege tax, contending that the tax as applied to federal judges violates the United States
Constitution. Jefferson County subsequently sued them in state court to recover delinquent privilege
taxes under the ordinance. The defendants removed the cases to federal court pursuant to 28 U.S.C.
§ 1442(a)(3); Jefferson County moved to remand, but the motion was denied. The cases
subsequently were consolidated.
2
As our consideration of the jurisdictional issue primarily concerns issues of law, we have
summarized the facts briefly here; a more complete account appears in our earlier en banc
opinion. See Acker, 92 F.3d at 1563-66.
2
The district court granted summary judgment for the defendants, holding that the legal
incidence of the tax fell not upon the judges but upon the federal judicial function itself, thus
constituting a direct tax on the United States in violation of the intergovernmental tax immunity
doctrine. See Jefferson County v. Acker, 850 F.Supp. 1536, 1545-46 (N.D.Ala.1994) (subsequent
history omitted). The district court also held that as applied to federal judges the ordinance violated
the Compensation Clause of Article III. See id. at 1547-58. Jefferson County appealed, and a panel
of this court reversed. See Jefferson County v. Acker, 61 F.3d 848 (11th Cir.1995) (subsequent
history omitted).
On rehearing en banc, this court affirmed the district court's ruling with respect to the
intergovernmental tax immunity doctrine, stating that any holding with respect to the Compensation
Clause was unnecessary. See Jefferson County v. Acker, 92 F.3d 1561, 1576 (11th Cir.1996)
(subsequent history omitted). With respect to the immunity issue, we concluded that although the
privilege tax is measured by the income of the taxed individual, the taxable event is the performance
of federal judicial duties in Jefferson County. See id. at 1572. As such, the privilege tax represents
a fee that a federal judge must pay to lawfully perform his or her duties, and therefore a direct tax
on the United States. See id. We further determined that Congress did not consent to such taxation;
as the states may not levy a direct tax on the United States without Congress' consent, we held that
the tax is unconstitutional as applied to the judges. See id. at 1573-76.
Jefferson County then filed in the Supreme Court a petition for a writ of certiorari. The
Solicitor General submitted an amicus brief on behalf of Jefferson County, in which it argued that
the Tax Injunction Act ("TIA"), 28 U.S.C. § 1341, barred federal jurisdiction over the case. In a
brief memorandum opinion, the Supreme Court vacated our en banc judgment and remanded the
3
case for consideration of the TIA's effect on federal jurisdiction in light of the recent decision in
Arkansas v. Farm Credit Services, --- U.S. ----, 117 S.Ct. 1776, 138 L.Ed.2d 34 (1997). Jefferson
County raised the jurisdictional issue in the district court in its unsuccessful motion to remand, but
on appeal did not. Therefore, this is the first time that the issue has been raised in this court. We
review jurisdictional rulings and other questions of law de novo. See, e.g., McKusick v. City of
Melbourne, 96 F.3d 478, 482 (11th Cir.1996).
II. DISCUSSION
A. Does the Federal Officer Removal Statute Apply?
The defendants removed this case to federal court under 28 U.S.C. § 1442(a)(3), the section
of the federal officer removal statute applicable to federal court officers. Jefferson County contends
that this case does not fall within the ambit of the statute, and that removal of the case to federal
court was therefore improper.3 As no other circumstances exist that would support federal court
jurisdiction, improper removal would mandate dismissal. Thus, our first inquiry is to determine
whether § 1442 applies.
Unlike the general removal statute (28 U.S.C. § 1441), § 1442 is a jurisdictional grant that
empowers federal courts to hear cases involving federal officers where jurisdiction otherwise would
not exist. See Loftin v. Rush, 767 F.2d 800, 804 (11th Cir.1985). It reads in pertinent part:
3
In its brief Jefferson County characterizes this issue as determining whether § 1442
"restores" any federal jurisdiction otherwise denied by the TIA. See Supplemental En Banc Brief
for Appellant at 17. However, as Article III courts have no jurisdiction except by statutory grant,
see, e.g., Baggett v. First Nat'l Bank, 117 F.3d 1342, 1345 (11th Cir.1997), the proper inquiry for
us is to determine first whether § 1442 provided the district court with any jurisdiction for the
TIA to deny.
4
(a) A civil action or criminal prosecution commenced in a State court against any of the
following persons may be removed by them to the district court of the United States for the
district and division embracing the place wherein it is pending:
....
(3) Any officer of the courts of the United States, for any Act under color of office
or in the performance of his duties;
28 U.S.C.A. § 1442(a)(3) (1994 & Supp.1997). The judges are "officer[s] of the courts of the United
States," but removal of an action under this section requires the satisfaction of two additional
requirements: (1) the defendant must establish a "causal connection between what the officer has
done under asserted official authority" and the action against him, Maryland v. Soper, 270 U.S. 9,
33, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926); and (2) the defendant must advance a "colorable
defense arising out of [his] duty to enforce federal law," Mesa v. California, 489 U.S. 121, 133, 109
S.Ct. 959, 966-67, 103 L.Ed.2d 99 (1989); accord Magnin v. Teledyne Continental Motors, 91 F.3d
1424, 1427-28 (11th Cir.1996). Thus, under the statute federal officers facing state law claims
against them arising out of their duties may remove their cases to federal court if they advance a
colorable federal defense. See Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 1664,
68 L.Ed.2d 58 (1981). Jefferson County argues that the judges have not satisfied either requirement.
We agree with the district court that the plain language of § 1442 is sufficiently broad to
encompass this case. The Jefferson County ordinance at issue makes it "unlawful for any person
to engage in ... any ... occupation ... without paying license fees to the County." Jefferson County,
Ala., Ordinance No. 1120, § 2 (Sept. 29, 1987). Under official authority, Judges Acker and Clemon
have "engaged in the occupation" of being United States District Judges "without paying license fees
to the County," and as a result the county has sued them. There is a direct causal connection
between the judges' acts under official authority and the action against them.
5
As for the second requirement, Jefferson County in effect urges us to reconsider our decision
on the merits, contending that the judges do not have immunity from the tax and therefore have not
advanced a "colorable" defense for their refusal to pay. However, § 1442 does not require the
resolution of, or even a detailed inquiry into, the merits of the federal defense advanced. One of the
primary purposes of § 1442 is to allow officials to have the validity of their federal defenses
determined in federal court. See Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d
396 (1969). For removal to be proper under § 1442, "[the federal defense alleged] need only be
plausible; its ultimate validity is not to be determined at the time of removal." Magnin, 91 F.3d at
1427. At the time of removal the judges' immunity defense was at least "plausible," a conclusion
supported by both the district court's grant of summary judgment for the judges and this court's
subsequent affirmance. We hold that the federal officer removal statute is sufficiently broad to
permit removal of this case.
B. Does the Tax Injunction Act Preclude Federal Jurisdiction?
The next issue to be resolved is the effect, if any, of the Tax Injunction Act (TIA) on federal
jurisdiction in this case. Before the passage of the TIA, equity practice directed federal courts to
abstain in cases involving state taxation out of concern for undue federal interference with the States'
internal economies. See, e.g., Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed.
447 (1932). The TIA represents a congressional recognition and sanction of this prior practice. See,
e.g., Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 470, 96 S.Ct. 1634, 1640, 48
L.Ed.2d 96 (1976). It states:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of
any tax under State law where a plain, speedy and efficient remedy may be had in the courts
of such State.
6
28 U.S.C. § 1341 (1994). Congress' purpose in enacting the TIA was "to deny jurisdiction to United
States district courts to ... restrain the assessment, levy, or collection" of state taxes. H.R.REP. NO.
75-1503 (1937) (House Judiciary Committee report recommending passage of TIA). As such, the
TIA is not a guide to abstention, but a "jurisdictional rule," Farm Credit Servs., --- U.S. at ----, 117
S.Ct. at 1779 (1997), stripping federal courts of the power to grant relief, see United Gas Pipe Line
Co. v. Whitman, 595 F.2d 323, 326 (5th Cir.1979) ("[T]he history of section 1341, from its precursor
federal equity practice to its most current judicial construction, evidences that it is meant to be a
broad jurisdictional impediment to federal court interference with the administration of state tax
systems.").
1. Does the Language of the TIA Cover This Case?
The TIA only applies to situations involving a "tax under State law" and in which the state
does not provide a "plain, speedy and efficient remedy." 28 U.S.C. § 1341 (1994). Neither party
contends that the tax at issue is not a "tax under state law" within the meaning of the TIA, so we will
assume arguendo that it is, an assumption consistent with the law in this circuit.4 As for the
existence of a "plain, speedy and efficient remedy" in the Alabama courts, Jefferson County argues
that the Alabama Declaratory Judgment Act, ALA.CODE § 6-6-220 (1997), and the judges' ability
4
Under our case law, the ordinance would seem to levy a "tax" rather than a regulatory "fee."
See Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 672 (holding that effect
of similar "license fee" regulation was to raise general revenue, thus rendering it a "tax" for
purposes of the TIA), clarified, 742 F.2d 590 (11th Cir.1984). While no court has explicitly held
that local taxes constitute taxes "under State law," numerous decisions have applied the TIA to
bar federal jurisdiction in cases involving local taxes. See, e.g., Rosewell v. LaSalle Nat'l Bank,
450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981); North Georgia Elec. Membership Corp.
v. City of Calhoun, 989 F.2d 429 (11th Cir.1993), aff'd, 989 F.2d 429 (11th Cir.1993); United
States v. Broward County, 901 F.2d 1005 (11th Cir.1990); Williams v. City of Dothan, 818 F.2d
755, modified, 828 F.2d 13 (11th Cir.1987).
7
to assert their constitutional objections to the tax as affirmative defenses in their answer in a state
court suit provide the necessary remedies. See Supplemental En Banc Brief for Appellant at 15-16.
The defendants do not contest the issue,5 but in any event we agree with Jefferson County's
argument on this point. See Richards v. Jefferson County, 789 F.Supp. 369, 371 (N.D.Ala.) (finding
Alabama's remedies adequate for TIA purposes in suit concerning same ordinance), aff'd, 983 F.2d
237 (11th Cir.1992). We hold that the case at bar falls within the scope of the TIA.
2. Does the TIA Bar Federal Jurisdiction?
Our holding that the TIA applies does not necessarily foreclose federal jurisdiction, as there
are two exceptions to the literal proscriptions of the statute: First, as the TIA is a legislative
enactment, Congress is of course free to create exceptions to the act in other legislation. Federal
courts have found both express and implied congressional intent to create exceptions to the TIA in
other jurisdictional statutes. See City and County of San Francisco v. Assessment Appeals Bd., 122
F.3d 1274, 1276 (9th Cir.1997); Carrollton-Farmers Branch Indep. Sch. Dist. v. Johnson &
Cravens, 13911, Inc., 858 F.2d 1010, 1015 (5th Cir.1988), vacated on other grounds, 889 F.2d 571
(5th Cir.1989); Southern Ry. Co. v. State Bd. of Equalization, 715 F.2d 522, 529-30 (11th Cir.1983).
Second, the statute "does not constrain the power of federal courts if the United States sues to protect
itself or its instrumentalities from state taxation," Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at
1778, even if the case falls within the literal language of the statute. This judicially created "federal
instrumentality" exception is based on the understanding that the sovereign is not bound by its own
legislative restrictions unless it expressly intends to bind itself. See id. at ----, 117 S.Ct. at 1781.
5
Most of the defendants' substantive arguments are contained in the brief filed by United
States District Judges Hancock, Propst, Nelson and Blackburn as amici curiae, which the
defendants adopt in its entirety. See Supplemental En Banc Brief for Appellees at 8.
8
Thus, both exceptions involve a determination of congressional intent to allow federal jurisdiction
notwithstanding the TIA's proscriptions. We examine them in turn.
a. Does § 1442 Override the TIA?
The defendants contend that § 1442, without more and in all cases, overrides the TIA, giving
them an absolute right to remove to federal court. We reject this contention. As a statute that strips
federal jurisdiction, the TIA assumes a preexisting statutory grant; without such a grant, there would
be no jurisdiction for the TIA to strip away. The Supreme Court has spoken directly on this point:
Since presumably all actions properly within the jurisdiction of the United States district
courts are authorized by one or another of the statutes conferring jurisdiction upon those
courts, the mere fact that a jurisdictional statute ... speaks in general terms of "all"
enumerated civil actions does not itself signify that [an entity is] exempted from the
provisions of [the TIA].
Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 472, 96 S.Ct. 1634, 1641, 48 L.Ed.2d
96 (1976);6 see also Bank of New England Old Colony v. Clark, 986 F.2d 600, 603, 604 (1st
Cir.1993) ("For the FDIC to prove that the [FIRREA] removal statute trumps the [TIA], it must
show that Congress clearly and manifestly intended the statute to be an exception.... The mere fact
that [the removal statute] states that the FDIC may remove "all' actions does not in itself demonstrate
the clear and manifest intent of Congress to trump the [TIA].... Such language, rather, is consistent
with a general grant of jurisdiction which did not take into account the provisions of the Act."
(citations omitted)); Ashton v. Cory, 780 F.2d 816, 822 (9th Cir.1986) (ERISA § 502 (29 U.S.C. §
1132(e)(1)) is not exception to TIA, because "[i]n the absence of ... express congressional action,
6
Although it relied on the principle of comity underlying the TIA rather than the act itself, the
Court came up with the same result with respect to tax refund actions under 42 U.S.C. § 1983.
See Fair Assessment in Real Estate Assoc. v. McNary, 454 U.S. 100, 116, 102 S.Ct. 177, 186, 70
L.Ed.2d 271 (1981).
9
we cannot infer that Congress intended impliedly to take the drastic step of carving out an exception
to the Tax Injunction Act"). In light of the reasoning of the Supreme Court and of other federal
courts, we reject the defendants' argument and hold that § 1442 standing alone is not a universal
exception to the TIA.
b. Do the Defendants Come Within The "Federal Instrumentality" Exception to the TIA?
We have found no direct evidence of congressional intent to allow the defendants to bypass
the TIA in the language of the statutes at issue. However, in Department of Employment v. United
States, 385 U.S. 355, 358, 87 S.Ct. 464, 467, 17 L.Ed.2d 414 (1966), the Supreme Court set forth
a judicial exception to the TIA based on implied congressional intent, holding that "[the TIA] does
not act as a restriction upon suits by the United States to protect itself and its instrumentalities from
unconstitutional state exactions." The Court's holding was based on the understanding that the
government is not bound by its own legislative restrictions unless it expressly intends to bind itself.
See Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at 1781; see also Dollar Sav. Bank v. United
States, 86 U.S. (19 Wall.) 227, 239, 22 L.Ed. 80 (1873). In other words, the Court assumed that in
enacting the TIA Congress did not intend to prevent the United States from asserting its own tax
immunity in federal court. Thus the judicial exception, also known as the "federal instrumentality
exception," allows the federal government to contest state taxation of its instrumentalities in federal
court notwithstanding the restrictions of the TIA. See, e.g., United States v. Broward County, 901
F.2d 1005, 1008 (11th Cir.1990); Dawson v. Childs, 665 F.2d 705, 710 (5th Cir. Unit A Oct.1980);
United States v. Lewisburg Sch. Dist., 539 F.2d 301, 310 (3d Cir.1976).
1. Arkansas v. Farm Credit Services
10
Read literally, however, the exception articulated in Department of Employment only applies
to "suits by the United States to protect itself and its instrumentalities" from state taxation. 385 U.S.
at 358, 87 S.Ct. at 467 (emphasis added). The few circuit court cases addressing the issue are split
on whether federal instrumentalities may contest state taxes in federal court without the government
as a co-party. Compare, e.g., FDIC v. City of New Iberia, 921 F.2d 610, 613 (5th Cir.1991) (FDIC
is federal instrumentality that may contest state tax in federal court without United States as
co-plaintiff) with, e.g., Housing Auth. of Seattle v. State of Washington, Dep't of Revenue, 629 F.2d
1307, 1311 (9th Cir.1980) (joinder with the United States as co-plaintiff necessary for
instrumentality to avoid TIA). This was the issue the Supreme Court set out to address in Farm
Credit Services.
Farm Credit Services concerned Production Credit Associations (PCAs), federally chartered
corporations whose organic statute explicitly designates them as "instrumentalities" of the United
States. See 12 U.S.C. §§ 2071(b)(7), 2077 (1994). PCAs are exempt by federal statute from state
taxes on their "notes, debentures, and other obligations." See 12 U.S.C. § 2077 (1994). In Farm
Credit Services, four PCAs sued the state of Arkansas in federal district court, claiming immunity
not only from the taxes explicitly designated in § 2077, but from Arkansas sales and income taxes
as well. The government did not participate in the suit, and the Solicitor General submitted an
amicus brief opposing jurisdiction. Thus, the case turned on whether the PCAs could utilize the
Department of Employment exception without the joinder of the government as a co-party. The
Supreme Court held that the TIA barred the PCAs from contesting the tax in federal court unless the
United States participated on their behalf. Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at 1780.
11
The Court has directed us to consider the jurisdictional issue in this case in light of Farm
Credit Services. While the Farm Credit Services Court held that PCAs could not sue in federal court
without the United States as co-party, it did not extend that holding to other instrumentalities; the
result in Farm Credit Services seems to hold open the "federal instrumentality" exception for entities
litigating on their own. Jefferson County's brief characterizes Farm Credit Services as holding that
"federal courts [have] no jurisdiction over a dispute involving the collection of a state tax from a
federal instrumentality unless the United States [is] a co-party." Supplemental En Banc Brief for
Appellant at 16. This is a clear misreading of the opinion, which states only that "instrumentality
status does not in and of itself entitle an entity to the same exemption the United States has under
the Tax Injunction Act." Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at 1782; see also City and
County of San Francisco v. Assessment Appeals Bd., 122 F.3d 1274, 1277 (9th Cir.1997)
(interpreting Farm Credit Services as allowing some instrumentalities to bypass the TIA without the
United States' participation). In fact, the Farm Credit Services Court reviewed different approaches
used by the circuits and noted that a rule barring all federal instrumentalities from federal court
unless the United States participates is the "most restrictive approach" of those used. Farm Credit
Servs., --- U.S. at ----, 117 S.Ct. at 1781.
With respect to the PCAs, the Court held that "[u]nder any of the tests ... described, PCA's
would not be exempt from [the TIA]." Id. at ----, 117 S.Ct. at 1782. The factor that seems to have
weighed most heavily in the Court's decision is the PCAs' quasi-private status:
The PCA's' business is making commercial loans, and all their stock is owned by
private entities. Their interests are not coterminous with those of the Government any more
than most commercial interests. Despite their formal ... designation as instrumentalities of
the United States, ... PCA's do not have or exercise power analogous to that of ... any of the
departments or regulatory agencies of the United States.
12
Id. Article III judges are completely dissimilar from PCAs. Farm Credit Services therefore informs
our analysis, but does not answer the question before us with regard to Judges Acker and Clemon.
However, the opinion cites with seeming approval two cases which are helpful to our inquiry: Moe
v. Confederated Salish & Kootenai Tribes,7 see id. at ----, --- U.S. at ----, 117 S.Ct. at 1781 ("Moe
is instructive here."), and Federal Reserve Bank v. Commissioner of Corps. and Taxation,8 see id.
at ----, --- U.S. at ----, 117 S.Ct. at 1782. We now examine those cases.
2. Moe v. Confederated Salish & Kootenai Tribes
In Moe, the Court affirmed a district court ruling that extended the United States' Department
of Employment exception to Native American tribes suing in federal court. The district court
allowed the tribes to bypass the TIA under the exception and enjoin the collection of state taxes from
cigarette sales. It based this ruling on two alternative grounds: (1) that the United States' significant
interest in the tribes qualified them for the exception, and a symbolic joinder of the United States
would serve no purpose; and (2) that a separate jurisdictional statute, 28 U.S.C. § 1362,9 which
gives Native Americans special access to federal court, embodied a congressional purpose to allow
the tribes to sue in federal court as if they were the United States. See Confederated Salish &
Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1303-04 (D.Mont.1974).
7
425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976).
8
499 F.2d 60 (1st Cir.1974).
9
The statute reads:
The district courts shall have original jurisdiction of all civil actions,
brought by any Indian tribe or band with a governing body duly recognized by the
Secretary of the Interior, wherein the matter in controversy arises under the
Constitution, laws, or treaties of the United States.
28 U.S.C. § 1362 (1994).
13
The Supreme Court affirmed the ruling, but found each of the district court's grounds
insufficient standing alone to justify allowing the tribes to bypass the TIA. The Court first stated that
although the tribes' asserted interests coincided with those of the federal government, perhaps
qualifying them for federal "instrumentality" status, this congruence of interests was insufficient by
itself to exempt the tribes from the TIA. See Moe, 425 U.S. at 471-72, 96 S.Ct. at 1640-41.
Likewise, the Court refused to interpret § 1362 as a blanket exception to the TIA. See id. at 472, 96
S.Ct. at 1641. ("[T]he mere fact that a jurisdictional statute such as § 1362 speaks in general terms
of "all' enumerated civil actions does not itself signify that Indian tribes are exempted from the
provisions of [the TIA].").
Instead, the Court affirmed the district court on a hybrid of the two grounds. The Court
assumed that the United States could have sued on behalf of the tribes by itself or as co-plaintiff,
because of the congruence of the tribes' interests and those of the government. The Court also found
that § 1362 evidenced a congressional intent to allow Native American tribes, in some
circumstances, to participate in federal court as if they were the United States suing as the tribes'
trustee. The Court held that under the circumstances of the case the tribes could use § 1362 to stand
in the place of the United States and enjoy the benefit of the Department of Employment exception.
See id. at 474-75, 96 S.Ct. 1641-42.
3. Federal Reserve Bank v. Commissioner of Corps. & Taxation
Federal Reserve Bank involved a declaratory judgment action brought in federal court by
the Federal Reserve Bank of Boston, which sought to avoid Massachusetts sales tax on materials
used to construct its new building. The First Circuit's decision allowed the bank to contest the tax
14
in federal court without the United States as co-plaintiff. The court began by accepting the bank's
status as a federal instrumentality, framing the case in terms of what it deemed the proper issue:
[T]he present case does not turn on whether federal reserve banks are instrumentalities.
Plainly they are. The question is whether there is any reason to treat [the bank] differently
from instrumentalities [not eligible for an exemption from the TIA] like savings and loan
associations.... Is [the bank] privileged, like the United States itself, to maintain this
proceeding?
Federal Reserve Bank, 499 F.2d at 62. The First Circuit noted that in answering the question of
whether an entity could use the instrumentality exception without the participation of the
government, "we must accept the absence of any bright line to facilitate analysis; each
instrumentality must be examined in light of its governmental role and the wishes of Congress as
expressed in relevant legislation." Id. at 64.
The court decided that the bank was a federal instrumentality eligible for the Department of
Employment exception, citing several factors in favor of its conclusion. First, the court noted that
the bank performed significant governmental functions, serving primarily as a "fiscal arm[ ] of the
federal government," and thus a state tax affecting the bank would "call[ ] directly into question the
sovereign interest of the United States." Id. at 62, 63. Second, the bank had the benefit of a special
jurisdictional statute giving it access to the federal courts; the court stated that "[s]uch a clearly
expressed strong federal interest in litigating all reserve bank business in the federal courts further
tips the scale away from the general hostility to interfering with [state taxation]." Id. at 63. Third,
the bank occupied a special place in the governmental structure "outside the executive chain of
command," id., which militated against forcing the bank to acquire the Attorney General's approval
before going to court. Thus, the court concluded, the bank could "proceed in a federal forum under
the same exception ... available to the United States were it a named plaintiff." Id. at 64.
15
4. Are the Judges Eligible for the Exception?
We conclude that the defendants' situation more closely resembles that of the Native
American tribes in Moe and the bank in Federal Reserve Bank than the PCAs in Farm Credit
Services. The Farm Credit Services Court was concerned that PCAs are basically commercial
lenders, whose interests "are not coterminous with those of the Government any more than most
commercial interests." Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at 1782. In contrast, the
Federal Reserve Bank court concluded that
[w]hile savings and loan associations may ... be analogized to private corporations, federal
reserve banks, ... are plainly and predominantly fiscal arms of the federal government. Their
interests seem indistinguishable from those of the sovereign....
Federal Reserve Bank, 499 F.2d at 62. Likewise, the Moe Court assumed that the Native American
tribes at issue in that case had interests closely aligned with those of the United States, at least as
far as taxation was concerned. See Moe, 425 U.S. at 471, 473-74, 96 S.Ct. at 1640, 1641-42.
As one of the three branches of the federal government, the federal judiciary's interests are
congruent with, if not identical to, those of the United States. We held in our prior en banc opinion
that "[w]hen performing federal judicial duties, a federal judge performs the functions of
government itself, and cannot realistically be viewed as a separate entity from the federal court."
Acker, 92 F.3d at 1572 (internal quotation and citation omitted). In interpreting the statute regarding
the duties of the Attorney General, the Supreme Court rejected the argument that cases "in which
the United States is interested" are solely those cases in which the interests of the executive branch
are at stake. United States v. Providence Journal Co., 485 U.S. 693, 701, 108 S.Ct. 1502, 1507-08
(1988). The Court stated: "It seems to be elementary ... that the three branches are but co-ordinate
parts of one government.... [W]e shall not assume that [Congress] intended ... to exclude the judicial
16
branch when it referred to the "interest of the United States.' " Id. (internal quotation and citation
omitted).
Another factor present in this case as well as in Moe and Federal Reserve Bank, but notably
absent from Farm Credit Services, is the existence of a special jurisdictional statute.10 Both Moe
and Federal Reserve Bank concluded that special jurisdictional statutes, without more, were
insufficient to override the TIA, but were evidence of congressional intent that the entities in
question be allowed to stand in the place of the United States in federal court. While we have
refused to read § 1442 as a blanket exemption to the TIA, we likewise find in the statute a
congressional intent that federal officers' access to the federal courts "[will] be at least in some
respects as broad as that of the United States." Moe, 425 U.S. at 473, 96 S.Ct. at 1641. As Congress
recently noted, "[section 1442] fulfills Congress' intent that questions concerning the exercise of
Federal authority, the scope of Federal immunity and Federal-State conflicts be adjudicated in
Federal court." S.REP. NO. 104-366 at 31 (1996), reprinted in 1996 U.S.C.C.A.N. 4202, 4210. The
United States can only act through its agents and officers; when those officers remove a case to
federal court under § 1442 they are, in effect, appearing in court for the United States. The case
before us directly implicates the congressional concerns addressed by § 1442, and "[s]uch a clearly
10
In interpreting Farm Credit Services, the Ninth Circuit has concluded that such a statute is a
prerequisite for an entity wishing to utilize the federal instrumentality exception without the
United States as a co-party. See City & County of San Francisco v. Assessment Appeals Bd., 122
F.3d 1274, 1277 (9th Cir.1997) ("A federal instrumentality does not have to join the United
States as a party, however, when a "second federal statute grant[ing] sweeping federal court
jurisdiction' exists.") (quoting Farm Credit Servs., --- U.S. at ----, 117 S.Ct. at 1781). Other
federal court decisions predating Farm Credit Services have held similarly. See MRT
Exploration Co. v. McNamara, 731 F.2d 260, 265 (5th Cir.1984); North Georgia Elec.
Membership Corp. v. Calhoun, 820 F.Supp. 1403, 1407-08 (N.D.Ga.1992), aff'd, 989 F.2d 429
(11th Cir.1993); National Carriers' Conf. Comm. v. Heffernan, 440 F.Supp. 1280, 1283
(D.Conn.1977).
17
expressed strong federal interest in litigating [such cases] in the federal courts further tips the scale
away from the general hostility to interfering with a state taxing scheme." Federal Reserve Bank,
499 F.2d at 63.
Finally, important structural concerns militate against us requiring the defendants to acquire
the support of the United States in this case. Much like the federal reserve banks, the federal
judiciary operates "outside of the executive chain of command," Id. There are good reasons not to
insist that the federal judiciary acquire the support of the Attorney General in order to assert
Supremacy Clause immunity, not the least of which is the ever-present possibility of conflict
between the executive and judicial branches. The federal instrumentality exception represents a
judicial finding of Congress' implied intent in enacting the TIA; refusing to apply the exception in
this case would be equivalent to a finding that Congress intended to put the judicial branch at the
mercy of the executive.
Like the Native American tribes in Moe and the bank in Federal Reserve Bank, the
defendants in this case have interests closely aligned with those of the United States, enjoy the
benefits of a jurisdictional statute giving them special access to the federal courts, and occupy a
place in the structure of our government that justifies allowing them to assert their tax immunity in
federal court without first going hat-in-hand to the Attorney General. Having examined this case
"in light of [the judges'] governmental role and the wishes of Congress as expressed in relevant
legislation," Federal Reserve Bank, 499 F.2d at 64, we hold that Judges Acker and Clemon are
eligible for the Department of Employment exception, and therefore, that the district court had
jurisdiction to hear the case.
III. CONCLUSION
18
We have reconsidered our decision in light of Farm Credit Services, and hold that under the
facts of this case the defendants are eligible for the federal instrumentality exception. Therefore,
the TIA does not operate to bar federal jurisdiction, and removal of the case was proper.
Accordingly, we REINSTATE our en banc opinion on the merits and AFFIRM the district court's
ruling.
AFFIRMED; EN BANC OPINION REINSTATED.
ANDERSON, Circuit Judge, dissenting, in which HENDERSON, Senior Circuit Judge,
joins:
Respectfully, I dissent for the reasons set out in my dissent, and Judge Birch's dissent, to the
initial en banc decision. Jefferson County v. Acker, 92 F.3d 1561, 1576-81 (11th Cir.1996).
BIRCH, Circuit Judge, dissenting, in which HENDERSON, Senior Circuit Judge, joins:
I respectfully dissent for the same reasons set out in the initial en banc decision. Jefferson
County v. Acker, 92 F.3d 1561, 1577-81 (11th Cir.1996). Because I continue to view the tax at issue
as nothing more than an income tax on the earnings of citizens who are also federal judges, I cannot
agree that the federal instrumentality exception to the Tax Injunction Act applies. Accordingly, I
believe the district court is without jurisdiction to hear this case.
CARNES, Circuit Judge, dissenting, in which HENDERSON, Senior Circuit Judge, joins:
The Supreme Court vacated our prior decision and remanded this case to us "for further
consideration in light of Arkansas v. Farm Credit Services of Central Arkansas, --- U.S. ----, 117
S.Ct. 1776, 138 L.Ed.2d 34 (1997)," a decision which applied the Tax Injunction Act, 28 U.S.C. §
1341. When the Supreme Court vacates and remands one of our decisions, the entire case comes
back to us and we are free to bring a fresh perspective (and hopefully fresh wisdom) to issues we
have already addressed. See Moore v. Zant, 885 F.2d 1497, 1502—03 (11th Cir.1989) (en banc).
19
Instead of reinstating our prior decision affirming the district court, we should seize this opportunity
to correct our earlier decision.
When this case was last before us, I joined the majority opinion which held that insofar as
Jefferson County's occupational tax applies to federal judges it amounts to a tax on federal
instrumentalities and violates the intergovernmental tax immunity doctrine. Since then I have been
convinced that I was wrong to join that holding. I would like to think that I have become smarter
and more learned in the law since our prior decision was issued, but there is no compelling evidence
to support such a conclusion as to any member of this Court. My change of view is attributable
instead to reading the amicus brief filed by the United States after this case left our Court and while
it was before the Supreme Court on a petition for writ of certiorari. Reading that brief (which was
incorporated as an appendix into the latest brief Jefferson County filed in this Court) and reflecting
upon it, as well as re-reading some of the authorities cited has convinced me that I was wrong
before.
Having finally seen the light, I join Judges Anderson, Birch, and Henderson in concluding
that the occupational tax at issue in this case is a tax upon the "pay or compensation" of those to
whom it applies, including federal judges. As such it falls within the consent to taxation Congress
has given in the Public Salary Act, 4 U.S.C. § 111, and therefore does not violate the
intergovernmental tax immunity doctrine. Application of the tax to federal judges is not
unconstitutional.
As for the Farm Credit Services issue, I do not believe that the federal instrumentality
exception to the Tax Injunction Act applies in this case. Accordingly, I would hold that the district
court lacked jurisdiction, and I would vacate its judgment and remand with directions to dismiss the
20
case for lack of jurisdiction. Assuming to the contrary that the Tax Injunction Act does not bar this
action, I would reverse and remand the district court's judgment on the merits.
21
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 32
Docket No. AT-0752-13-4332-I-1
Lee Ronso,
Appellant,
v.
Department of the Navy,
Agency.
April 14, 2015
Lee Ronso, Cantonment, Florida, pro se.
Thomas J. Tangi, Jacksonville, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has petitioned for review of the initial decision, which
affirmed the agency’s furlough action. For the following reasons, we conclude
that the petitioner has not established a basis under 5 C.F.R. § 1201.115 for
granting the petition for review. We therefore DENY the petition for review and
AFFIRM the initial decision AS MODIFIED.
BACKGROUND
¶2 The appellant is a Rehabilitation Program Manager for the agency’s
substance abuse clinic in Pensacola, Florida. Initial Appeal File (IAF), Tab 10
at 4. On June 3, 2013, the agency sent him a notice of proposed furlough, citing
2
budget cuts required by the Budget Control Act of 2011, as amended by the
American Taxpayer Relief Act of 2012. Id. at 6-8. The notice proposed
furloughing full-time employees, such as the appellant, for up to 11 days. Id.
at 7. On June 26, 2013, the appellant received the agency’s decision, upholding
the proposed furlough. Id. at 9-11.
¶3 The appellant filed this appeal with the Board. IAF, Tab 1. After holding
the requested hearing, the administrative judge upheld the furlough. IAF, Tab 13,
Initial Decision (ID). The appellant has filed a petition for review. 1 PFR File,
Tab 1. The agency has not filed a response.
1
The appellant’s petition for review contains new arguments that were not raised
below. Despite solely relying on an exception for the protection of life and property
below, IAF, Tab 7 at 4, the appellant’s petition suggests that another furlough exception
also may have applied to his position, Petition for Review (PFR) File, Tab 1 at 9
(referencing the authority of deciding officials to approve up to 50 individual,
mission-based exceptions to the furlough); IAF, Tab 11 at 8 (permitting designated
agency officials to approve up to 50 additional exceptions as needed to ensure safe and
efficient operations of their departments). He also seems to suggest that the agency’s
furlough decisions may have been motivated by sex discrim ination. See PFR File,
Tab 1 at 23. However, the Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously availab le despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant made
no such showing, we will not consider his new arguments on review.
The appellant also suggests that the administrative judge erred in allowing the deciding
official the opportunity to review a document during her testimony, without affording
him a similar opportunity concerning another document. See PFR File, Tab 1 at 6
(referencing a copy of a document which is available in the Department of the Navy’s
Administrative Record for FY 2013 Furlough Appeals, Part 2 at 125-27, available at
http://www.mspb.gov/furloughappeals/navy2013.htm). However, because the appellant
failed to present any argument that this purported error affected his substantive rights, it
is of no legal consequence and we will not consider it further. See Tan v. Department
of Veterans Affairs, 89 M.S.P.R. 15, ¶ 5 (2001) (the proponent of an alleged procedural
error bears the burden of demonstrating that it adversely affected his substantive rights;
absent that adverse effect, the error is harm less).
3
ANALYSIS
¶4 Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an
employee for 30 days or less “only for such cause as will promote the efficiency
of the service.” Accordingly, an agency must prove that cause existed for the
furlough and that the furlough promotes the efficiency of the service. Dye v.
Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the
efficiency of service standard in a furlough appeal by showing, in general, that
the furlough was a reasonable management solution to the financial restrictions
placed on it and that the agency applied its determination as to which employees
to furlough in a fair and even manner. Chandler v. Department of the
Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).
¶5 The appellant does not dispute the administrative judge’s finding that the
agency’s furloughs were a reasonable management solution to the budget cuts
required by sequestration and promoted the efficiency of the service, generally,
and we decline to revisit the administrative judge’s well-reasoned findings on the
issue. ID at 3-5; see generally Lopez v. Department of the Navy, 121 M.S.P.R.
647, ¶¶ 4, 15-16 (2014) (affirming the administrative judge’s determination that
furloughs were a reasonable management solution to the financial restrictions
resulting from sequestration). Nor does the appellant allege that the agency
applied the furlough in an unfair or uneven manner. See Chandler, 120 M.S.P.R.
163, ¶ 8 (explaining that “fair and even manner” means that the agency treated
similar employees similarly and justified any deviations with legitimate
management reasons). Instead, the appellant alleges that he fell within one of the
agency’s designated exceptions for the furlough, based upon the nature of his
position managing a substance abuse program. PFR File, Tab 1 at 8-23. He also
alleges that, contrary to the administrative judge’s findings, the agency violated
its own policy and his due process rights when the decidin g official delegated the
task of receiving oral responses to the furlough proposals. Id. at 5-7, 15-18. We
find no merit to these arguments.
4
The administrative judge properly found that the agency proved cause for the
appellant’s furlough because he met the criteria for being subject to, and not
excepted from, the furlough.
¶6 The appellant has consistently argued that he should have been excepted
from the furlough based upon the nature of his position. E.g., IAF, Tab 7 at 4.
According to the appellant, he fell within the exception that applied to select
medical personnel. See IAF, Tab 7 at 4, Tab 11 at 7-8. We find no error in the
administrative judge finding otherwise.
¶7 The agency’s burden to show “cause” for a furlough encompasses whether
the appellant met the criteria established by the agency for being subject to, and
2
not excepted from, the furlough. Dye, 121 M.S.P.R. 142, ¶ 9. The Secretary of
Defense issued a memorandum establishing a number of exceptions to the
decision to furlough employees. See IAF, Tab 11 at 7-11. Among them was an
exception for “those employees necessary to protect safety of life and property
. . . to the extent necessary to protect life and property . . . includ[ing] selected
medical personnel.” Id. at 7. The memorandum elaborated that “exceptions for
the medical category are approved with the understanding [that] these exceptions
preserve the minimum level of personnel needed to maintain quality of care in
24/7 emergency rooms and other critical care areas such as behavioral health.”
Id. at 8.
¶8 The deciding official for the appellant’s furlough limited her use of this
exception to medical staff providing emergency and in-patient services. See IAF,
Tab 12, Hearing Compact Disk (HCD) (deciding official testimony). She did not
use the exception for personnel that serviced out-patient clinics, such as the
2
The administrative judge framed the issue of whether the appellant fell with in an
exception to the furlough as an issue of “efficiency of the service.” ID at 5. However,
this issue is more appropriately addressed as one of cause. ID at 5-7. To the extent that
the administrative judge incorrectly characterized this discussion, we modify the initial
decision.
5
appellant. See id. On review, the appellant asserts that the deciding official
interpreted the exception too narrowly by not including out-patient services. PFR
File, Tab 1 at 13, 19-21. He argues that his position at an out-patient clinic is
critical to the well-being of patients. Id. at 8-11. According to the appellant, he
is the only civilian in his department, so his furlough resulted in his unqualified
subordinates managing the substance abuse treatment program on the days he was
furloughed. Id. at 8-9. He also argues that he was deemed essential or exempt
during the later government shutdown, so he should have been excepted from the
furloughs resulting from sequestration for the same reasons. Id. at 14-15.
¶9 Although we appreciate the appellant’s concern for the well-being of
patients, we find no error in the administrative judge’s determination that the
agency proved cause, despite declining to apply the furlough exception for select
medical personnel to the appellant. See ID at 6-8; see also Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding
no reason to disturb the administrative judge’s findings where the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions). Because the exception included the phrase “to the extent
necessary,” it did not create a blanket exception. See IAF, Tab 11 at 7; see also
Lopez, 121 M.S.P.R. 647, ¶ 11. Instead, the exception contemplated that
management would exercise discretion, as it did here, in determining which
employees were needed to preserve minimal care. See IAF, Tab 11 at 7.
¶10 We also find no error in the administrative judge’s determination that,
while the appellant may have been deemed “essential” or “exempt” for purposes
of a government shutdown, 3 that determination is not dispositive for purposes of
3
The referenced “government shutdown” was a period from October 1-16, 2013, during
which nonexempt federal employees were furloughed after Congress failed to pass a
budget or continuing resolution in time to avoid a lapse in appropriations. See
generally Continuing Appropriations Act of 2014, Pub. L. No. 113-46, 127 Stat. 558
6
the agency’s exceptions for furloughs resulting from sequestration. ID at 7-8.
The appellant has argued that the government shutdown and sequestration are
comparable because both required furloughs due to fiscal issues. PFR File, Tab 1
at 14-15. He asserts that it is illogical that he worked throughout the shutdown
because he was “essential” when the agency had no funding, but was furloughed
when sequestration caused the agency to have reduced funding. Id. at 15.
¶11 We agree with the administrative judge’s decisions to credit the deciding
official’s testimony and find that the government shutdown and sequestration
each required a unique assessment of staffing needs. ID at 7-8. While the
government shutdown was governed by the Antideficiency Act, Pub. L. No.
97-258, 96 Stat. 877 (1982) (codified, in pertinent part, as amended, at 31 U.S.C.
§ 1342), the sequestration furloughs were governed by the agency’s internal
policy, see IAF, Tab 11 at 4-13. Like the sequestration furlough exception for
“employees necessary to protect safety of life and property,” the furloughs that
resulted from the government shutdown had a similar exception “for emergencies
involving the safety of human life or the protection of property.” 31 U.S.C.
§ 1342; IAF, Tab 11 at 7. However, despite this facial similarity, the
administrative judge found, based on the testimony of the deciding official, that
the circumstances of the government shutdown furlough resulted in more
exceptions. The agency had to determine which employees would be exempt
from the government shutdown furloughs with the knowledge that employees who
were not excepted would be absent on a continuous, rather than a sporadic, basis
and without the knowledge of when the shutdown would come to an end. See
HCD (deciding official testimony). By comparison, the agency knew that
employees would be furloughed no more than 11 days due to sequestration, and
the agency was able to space out those days over the course of several months.
(2013) (ending the October 2013 government shutdown by providing appropriations for
the remainder of the fiscal year).
7
Id.; IAF, Tab 11 at 6. In essence, the government shutdown required that the
agency abruptly wind down and stop many activities, while sequestration
permitted the agency to engage in a more thoughtful consideration of how to
reduce spending over the course of a fiscal year to accommodate a reduced
budget. 4 See HCD (deciding official testimony). Accordingly, the agency’s
determination that the appellant was essential during the government shutdown
did not prevent it from proving cause for his sequestration furlough, as it did
here.
The appellant did not establish that the agency committed a due process violation
or harmful error by delegating the task of receiving oral replies.
¶12 The appellant does not dispute that he was given the opportunity to respond
to the proposed furlough. Instead, he argues that the agency violated his due
process rights and committed harmful error because the deciding official
delegated the task of receiving oral replies to a designated official, rather than
receiving them personally. PFR File, Tab 1 at 5-7; see HCD (deciding official
testimony). We disagree.
¶13 Prior notice and an opportunity to respond to an appealable agency action
are fundamental due process requirements for a tenured public employee. See
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); see also
Gilbert v. Homar, 520 U.S. 924, 930 (1997) (recognizing that due process rights
may vary depending on the circumstances). Here, the agency proposed
furloughing the appellant, but first provided him with 7 days to respond orally
and/or in writing. IAF, Tab 10 at 7-8. Accordingly, the agency provided the
appellant with the required constitutional right to minimum due process and a
4
The appellant does not dispute this d istinction in the two furloughs. See PFR File,
Tab 1 at 14-15 (containing the appellant’s argument that he should have been deemed
essential during both furloughs because they were both “based on fiscal issues” and he
is essential for patient care).
8
meaningful opportunity to respond. 5 See generally Kinsey v. Department of the
Navy, 59 M.S.P.R. 226, 229 (1993) (where an agency has provided an employee
with an opportunity to make a written reply to a notice of proposed adverse
action, its failure to afford him an opportunity to make an oral reply does not
violate his right to minimum due process).
¶14 Even though we find no due process violation, we still must determine
whether the agency committed a procedural error. See Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,
in addition to the right to due process, “[p]ublic employees are . . . entitled to
whatever other procedural protections are afforded to them by statute, regulation,
or agency procedure”). Therefore, we must examine whether the agency
committed a harmful error by virtue of the deciding official delegating the
authority to receive oral replies to the proposed furlough. See Ward v. U.S.
Postal Service, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (holding that procedural
5
The appellant disputes the administrative judge’s findin g that he did not submit an
oral or written reply to the proposed furlough. PFR File, Tab 1 at 7, 17; see ID at 6.
According to the appellant, he submitted an oral reply to his immediate supervisor.
PFR File, Tab 1 at 7, 17. However, other than his own testimony, the appellant
presented no evidence of this reply, such as testimony from his supervisor. Moreover,
to the extent that he orally disputed the proposed furlough to his supervisor, this was
not the appropriate avenue for submitting a rep ly, as the appellant implicitly
acknowledges. Compare IAF, Tab 10 at 8 (furlough proposal directing the appellant to
contact a specific Human Resources representative to arrange for an oral reply if he
wished to submit one), with PFR File, Tab 1 at 7 (indicating that he “did not reply via
[Human Resources]” because he did not trust that his statement would be reported “in
an accurate and factual manner”). Accordingly, we see no meaningful d istinction
between the appellant’s testimony that he “orally replied” to his immediate supervisor
and the administrative judge’s finding. See generally Flores v. Department of Defense,
121 M.S.P.R. 287, ¶ 11 (2014) (findin g that in the absence of any indication that the
appellant made a reasonable effort to assert his right to respond, or that the agency
denied him his right to respond through action, negligence, or design, the appellant was
not denied due process); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶¶ 7, 22
(2004) (finding no due process vio lation where the appellant asked to respond to a
proposed removal after the agency’s deadline for doing so and the agency refused),
aff’d, 176 F. App’x 110 (Fed. Cir. 2006).
9
errors are subject to a harmful error analysis). An appellant bears the burden of
proving, by preponderant evidence, that the agency committed harmful error in
reaching its decision. 5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(2). A harmful
error is an error by the agency in the application of its procedures that is likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. 5 C.F.R. § 1201.56(c)(3).
¶15 In asserting harmful error, the appellant relies on the May 14, 2013
memorandum from the Secretary of Defense that detailed which employees could
be excepted from the furloughs. See IAF, Tab 11 at 4-14. The memorandum
indicated that the designated official for determining who would be excepted
from the furloughs would be no lower than a local Installation Commander and
that these responsibilities could not be delegated further. Id. at 8.
¶16 Despite the aforementioned memorandum, the record reveals that the
deciding official’s delegation of the duty to receive oral replies was consistent
with agency policy. See Department of the Navy’s Administrative Record for FY
2013 Furlough Appeals, Part 1 at 36, available at http://www.mspb.gov/furlough
appeals/navy2013.htm. The policy pertaining to furloughs, dated 10 days after
the memorandum cited by the appellant, explicitly provided that “[a]n individual
other than the [d]eciding [o]fficial may be delegated as the [r]eply [o]fficial” for
oral replies. Id. Moreover, even if the agency had erred in delegating the duty of
receiving oral replies, the appellant failed to present any argument or evidence as
to how the error was harmful. See Pumphrey v. Department of
Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an
employee has been harmed by a procedural error in the adverse action process;
the appellant bears the burden of proving harm). Accordingly, the administrative
judge properly found that the appellant failed to show that the agency committed
either a due process violation or a harmful error.
10
ORDER
¶17 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
11
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
| {
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 09:08 AM CDT
- 596 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
In re Estate of M arcia G. A bbott-Ochsner, deceased.
M ark D. A bbott, Personal R epresentative of
the Estate of M arcia G. A bbott-Ochsner,
deceased, appellant, v. Cynthia J. Sellon
and Russell G. A bbott, appellees.
___ N.W.2d ___
Filed April 13, 2018. No. S-17-528.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
3. Final Orders. A special proceeding includes every special statutory
remedy that is not in itself an action, or an integral step to commence it,
join issues in it, and conduct it to a final hearing and judgment.
4. Decedents’ Estates: Final Orders. A proceeding under Neb. Rev. Stat.
§ 30-2457 (Reissue 2016) is a special proceeding.
5. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
6. Final Orders: Appeal and Error. An order affects a substantial right
if it affects the subject matter of the litigation by diminishing a claim or
defense that was available to the appellant prior to the order from which
he or she is appealing.
7. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
8. Final Orders: Appeal and Error. A substantial right under Neb. Rev.
Stat. § 25-1902 (Reissue 2016) is not affected when that right can be
effectively vindicated in an appeal from the final judgment.
9. Decedents’ Estates: Final Orders: Appeal and Error. Orders denying
a request to remove a personal representative for cause are final and
immediately appealable by the person interested in the estate who peti-
tioned for the personal representative’s removal.
- 597 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
10. Final Orders: Appeal and Error. To be a final order, the substan-
tial right affected must be of the appellant and cannot be claimed
vicariously.
11. Decedents’ Estates: Final Orders. In and of itself, and without addi-
tional facts indicating otherwise, an order appointing a special admin-
istrator pursuant to Neb. Rev. Stat. § 30-2425 (Reissue 2016) is not a
final order.
12. Final Orders: Appeal and Error. An appellate court does not entertain
direct appeals from interlocutory orders in order to avoid piecemeal
review, chaos in trial procedure, and a succession of appeals granted in
the same case to secure advisory opinions to govern further actions of
the trial court.
13. Decedents’ Estates. The underlying purpose of the Nebraska Probate
Code is to promote a speedy and efficient system for liquidating the
estate of the decedent and making distribution to the successors.
14. Final Orders: Jurisdiction: Appeal and Error. An appellate court’s
jurisdiction to review whether the lower court acted extrajurisdictionally
presupposes its appellate jurisdiction over an appeal from a final order
or judgment.
Appeal from the County Court for Douglas County:
Lawrence E. Barrett, Judge. Appeal dismissed.
Michael F. Coyle, Elizabeth A. Culhane, and Jacqueline M.
DeLuca, of Fraser Stryker, P.C., L.L.O., for appellant.
John M. Lingelbach, James A. Tews, and Minja Herian, of
Koley Jessen, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Pirtle,
Judge.
Heavican, C.J.
INTRODUCTION
This case involves the probate of Marcia G. Abbott-Ochsner’s
estate, most of which consists of a trust that was the subject
of a previous appeal to this court in In re Conservatorship
of Abbott (Abbott I).1 Two siblings filed a petition in county
court contesting the validity of the will presented for informal
1
In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).
- 598 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
probate by their brother, who had been appointed by the county
court as the personal representative of the estate.
Pursuant to Neb. Rev. Stat. § 30-2429.01(1) (Reissue 2016),
the personal representative transferred his siblings’ will con-
test to the district court. Afterward, pursuant to Neb. Rev.
Stat. § 30-2425 (Reissue 2016), the county court granted the
siblings’ request to appoint a special administrator for the
estate, pending resolution of the district court proceedings. The
siblings had also sought appointment of a different personal
representative, but the county court’s order did not remove the
brother as personal representative. The brother appeals, arguing
that the county court lacked jurisdiction to appoint a special
administrator, because the case had been transferred to the dis-
trict court. The siblings disagree and assert, as a threshold mat-
ter, that an order appointing a special administrator pursuant to
§ 30-2425 is not a final order.
BACKGROUND
The “Abbott Living Trust” was created by Marcia G. Abbott-
Ochsner (Marcia) and her first husband, George W. Abbott, in
1995. Marcia and George were cotrustees of the trust, which
was divided into a revocable “‘Survivor’s Trust’” and an
irrevocable “‘Family Trust.’”2 Marcia and George had three
children—Russell G. Abbott, Cynthia J. Sellon (Cynthia), and
Mark D. Abbott—who were beneficiaries.
George died in 1996. Marcia suffered a stroke in 2011.
As a result of the stroke, Marcia suffered from expressive
aphasia—a disorder that affects the brain’s ability to use and
understand language. In March 2015, Marcia appointed Mark
as successor trustee to the living trust and Mark accepted the
appointment.
At the behest of Russell and Cynthia, the county court
ordered the appointment of a conservator and removed Mark
as trustee. At that time, the living trust was valued at approxi-
mately $2 million.
2
Id. at 514, 890 N.W.2d at 475.
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As described in Abbott I, the county court considered evi-
dence that Mark was hostile toward Cynthia. Mark accused
Cynthia of murdering their aunt and receiving an unequal share
of their aunt’s estate. Mark repeatedly threatened to “‘make it
even,’” using the assets of the trust.3 Mark described his rela-
tionship with Russell and Cynthia as “‘WWIII.’”4
The county court also considered evidence that Mark had
refused to provide documentation concerning the trust and
trust activities, had acted as trustee before being appointed,
and had facilitated money transfers resulting in negative tax
consequences.
The county court found that Mark had violated several of
his duties under the Nebraska Uniform Trust Code, includ-
ing his duty to administer the trust in good faith, his duty of
loyalty, his duty of impartiality, and his duty to inform and
report. On appeal, we affirmed Mark’s removal as trustee,
concluding that Mark’s breach of his duty of impartiality was
dispositive.5
In September 2015, several months after Marcia had
appointed Mark as successor trustee, and apparently after a
conservator had been appointed for Marcia, Marcia executed
a pourover will. Marcia exercised her limited testamentary
power in the family trust to change the default equal distribu-
tion between the three children to a 100-percent distribution to
Mark and a 0-percent distribution to Russell and Cynthia. The
pourover will provided that Mark was to be the estate’s per-
sonal representative, with sole discretion to distribute Marcia’s
personal possessions.
Marcia died in October 2016. Mark filed an application
for informal probate of the 2015 pourover will and infor-
mal appointment of a personal representative of Marcia’s
estate. That same day, Mark accepted informal appointment as
3
Id. at 516, 890 N.W.2d at 477.
4
Id.
5
Abbott I, supra note 1.
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personal representative of the estate. He also filed a petition
for declaratory judgment in the district court, seeking an order
declaring Marcia’s 2015 amendments to the living trust valid,
including her distribution of 100 percent of the assets to Mark.
The county court confirmed Mark’s informal appointment and
issued letters of personal representative. Russell and Cynthia
filed a petition in the county court to set aside the informal
probate of the will, for a formal testacy proceeding, and for
appointment of a different personal representative in the formal
proceedings. Russell and Cynthia alleged that the 2015 pour
over will was not valid, because Marcia lacked the requisite
capacity to execute the will, and that the will was the product
of undue influence.
In their petition for formal proceedings, Russell and Cynthia
also requested an order, pursuant to § 30-2425, restraining
Mark from exercising any powers of a personal representative
and appointing a special administrator.
Pursuant to § 30-2429.01(1), Mark filed a notice of transfer
of Russell and Cynthia’s petition to the district court and paid
the required docket fee. After Mark filed his notice of transfer
under § 30-2429.01(1), a hearing was held in the county court
to determine Russell and Cynthia’s request for the appointment
of a special administrator during the pendency of the district
court proceedings.
Mark argued at the hearing that the county court no longer
had jurisdiction to appoint a special administrator, because
the proceeding to determine whether Marcia left a valid will
had been moved to the district court. Russell and Cynthia, in
contrast, asserted that although the will contest had been trans-
ferred to the district court, the county court retained jurisdic-
tion over the rest of the formal probate proceedings, such as
claims by creditors.
Mark conceded that some “ancillary matters” were still to
be handled by the county court, but that the appointment of
a special administrator was part of the will contest proceed-
ings in district court. When Mark pointed out that the request
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for the appointment of a special administrator had been made
in the petition that was moved to district court, Russell and
Cynthia offered to file a separate motion.
In support of their argument that a special administrator
should be appointed, Russell and Cynthia offered Cynthia’s
affidavit. The affidavit was admitted over Mark’s objections
on the basis of subject matter jurisdiction, hearsay, foundation,
speculation, and unfair surprise. Cynthia averred in her affida-
vit that she had reviewed the trust activity records and believed
that approximately $800,000 was unaccounted for.
Russell and Cynthia also entered into evidence the county
court’s prior order appointing a conservator for Marcia and
removing Mark as trustee, as well as this court’s opinion in
Abbott I affirming the county court’s decision to remove Mark
as trustee. Russell and Cynthia argued that a special adminis-
trator was appropriate, given Mark’s past history of breaching
his fiduciary duties as trustee.
On April 10, 2017, the county court issued an order appoint-
ing a special administrator. The court did not remove Mark as
personal representative of the estate. Mark appeals from the
April 10 order.
ASSIGNMENTS OF ERROR
Mark assigns that the county court erred in (1) failing to
dismiss Russell and Cynthia’s petition when the case had
already been removed to district court; (2) failing to dismiss
for lack of jurisdiction Russell and Cynthia’s request for a spe-
cial administrator when the case had already been removed to
district court; (3) entering an order appointing a special admin-
istrator; (4) allowing Cynthia’s affidavit into evidence; (5) rul-
ing on the petition to set aside informal probate of the will, for
formal adjudication of intestacy, determination of heirs, and
appointment of personal representative without allowing Mark
the ability to cross-examine Cynthia; and (6) failing to restrict
the special administrator from acting during the pendency of
the litigation in district court.
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STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.6
ANALYSIS
[2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether
it has jurisdiction over the appeal.7 Appellate review under
the Nebraska Probate Code is governed by Neb. Rev. Stat.
§ 30-1601 (Reissue 2016), which states that appeals from a
county court may be taken in the same manner as appeals
from a district court and that “[a]n appeal may be taken by
any party and may also be taken by any person against whom
the final judgment or final order may be made or who may be
affected thereby.”
There has not yet been a final judgment in which the probate
estate has been finally established.8 Thus, we must determine
whether Mark appeals from a final order.9 Final orders are
defined by Neb. Rev. Stat. § 25-1902 (Reissue 2016). As appli-
cable here, the question is whether, under § 25-1902, the April
10, 2017, order “affect[ed] a substantial right” and was “made
in a special proceeding.”
[3,4] A special proceeding includes every special statutory
remedy that is not in itself an action, or an integral step to
commence it, join issues in it, and conduct it to a final hear-
ing and judgment.10 Neb. Rev. Stat. § 30-2457 (Reissue 2016)
confers upon persons interested in an estate the specific right
to petition the county court to appoint a special administrator.
Thus, a proceeding under § 30-2457 is a special proceeding.
6
See Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).
7
See In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34
(2016).
8
See In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
9
See In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).
10
See In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).
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[5-8] Whether the April 10, 2017, order affected a substan-
tial right requires more analysis. A substantial right is an essen-
tial legal right, not a mere technical right.11 An order affects a
substantial right if it affects the subject matter of the litigation
by diminishing a claim or defense that was available to the
appellant prior to the order from which he or she is appeal-
ing.12 The duration of the order is also relevant to whether it
affects a substantial right.13 It is not enough that the right itself
be substantial; the effect of the order on that right must also
be substantial.14 And a substantial right under § 25-1902 is not
affected when that right can be effectively vindicated in an
appeal from the final judgment.15
This court has never determined whether an order appoint-
ing a special administrator upon a petition for formal probate
affects a substantial right of the informally appointed per-
sonal representative. A formal testacy proceeding is litigation
to determine whether a decedent left a valid will.16 Section
30-2425 states that a formal testacy proceeding “may be com-
menced by an interested person filing a petition as described
in section 30-2426(a) . . . or . . . section 30-2426(b).” Such a
petition may be either with or without a request for appoint-
ment of a personal representative.17
Russell and Cynthia filed a petition as described by
§ 30-2426(a). In the petition, they requested the appointment
of a personal representative. Mark is not appealing the com-
mencement of formal proceedings, and he is not appealing his
removal as personal representative, because no such order has
been made.
11
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
12
See id.
13
See id.
14
In re Adoption of Madysen S. et al., supra note 7.
15
In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
16
§ 30-2425.
17
See § 30-2425 and Neb. Rev. Stat. § 30-2426 (Reissue 2016).
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Upon commencement of a formal testacy proceeding, the
court shall fix a time and place of hearing.18 Section 30-2425
provides that “[u]nless a petition in a formal testacy pro-
ceeding also requests confirmation of the previous informal
appointment, a previously appointed personal representative
. . . must refrain from exercising his power to make any fur-
ther distribution of the estate during the pendency of the for-
mal proceeding.”
Section 30-2425 goes on to provide that a petitioner who
seeks the appointment of a different personal representative
in a formal proceeding “also may request an order restraining
the acting personal representative from exercising any of the
powers of his office and requesting the appointment of a spe-
cial administrator.”
Section 30-2425 states that if no special administrator is
appointed, then the commencement of a formal proceeding has
no effect on the powers and duties of the previously appointed
special administrator other than those relating to distribution.
But Neb. Rev. Stat. § 30-2438(a) (Reissue 2016) states that
if a formal proceeding for adjudication regarding the quali-
fication of one who previously has been appointed personal
representative in informal proceedings is commenced after
appointment, “the previously appointed personal representative
. . . shall refrain from exercising any power of administration
except as necessary to preserve the estate or unless the court
orders otherwise.” Though the court’s order was not explicit in
this case, such restriction apparently was to continue until the
court determined who is entitled to appointment as set forth in
§ 30-2438(b).
Section 30-2438 states that a formal proceeding for adjudi-
cation regarding the qualification of one who previously has
been appointed personal representative in informal proceed-
ings, when an issue concerning the testacy of the decedent
is or may be involved, is governed by both §§ 30-2426 and
30-2438. Russell and Cynthia presented in their petition issues
18
See Neb. Rev. Stat. § 30-2427(a) (Reissue 2016).
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regarding Mark’s qualification as personal representative. We
treat their petition as a request to have Mark’s qualification
adjudicated in a formal proceeding under § 30-2438.19
Mark asserts that his substantial rights were affected because
the April 10, 2017, order appointing a special administrator
“stripped Mark” of his powers to act as personal representa-
tive.20 But, as set forth above, the commencement of the formal
proceedings had already limited Mark’s power to do anything
other than preserve the estate.
Mark does not elaborate how appointing a special adminis-
trator to protect the estate affected his substantial rights, other
than to point out that he was nominated in the contested will
and that the estate and, ultimately, Mark, as an heir, will bear
the costs of the special administrator’s compensation. Mark
argues that the effect on these allegedly substantial rights can-
not be vindicated in an appeal from the judgment, because the
costs and any potential mishandling of the estate by the special
administrator cannot later be undone.
While rights of priority among persons seeking appoint-
ment, “who are not disqualified,” are set forth in Neb. Rev.
Stat. § 30-2412 (Reissue 2016), no determination of appoint-
ment in the formal proceeding has yet been made. And Mark
does not present any reason why the special administrator, an
uninterested third party, would mishandle the estate. Mark did
not object below that the special administrator was disqualified
or move for removal for cause. Mark does not explain how
a special administrator’s reasonable compensation would be
more burdensome to the estate than the reasonable compensa-
tion due to a personal representative who would otherwise be
acting during that time.21
[9] We have held that orders denying a request to remove
a personal representative for cause are final and immediately
19
See In re Estate of Sutherlin, 261 Neb. 297, 622 N.W.2d 657 (2001).
20
Reply brief for appellant at 7.
21
Neb. Rev. Stat. § 30-2480 (Reissue 2016).
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appealable by the person interested in the estate who petitioned
for the personal representative’s removal.22 Neb. Rev. Stat.
§ 30-2454 (Reissue 2016) grants a person interested in the
estate the right to petition for removal of a personal representa-
tive for cause. Orders subsequent to a hearing under that statute
are the final determination of that right. We have explained that
personal representatives have broad powers to administer and
distribute the decedent’s estate, usually without direction of the
county court.23 We have thus indicated that the right conferred
by § 30-2454 is more than a mere technical right, and one
that could not be effectively vindicated in an appeal from the
final judgment.24
We have also held that orders finally determining a personal
representative’s right to fees, as provided in § 30-2480, are
final.25 We reason that such orders are a final disposition of the
personal representative’s rights granted under § 30-2480.26
In In re Estate of Muncillo,27 we held that the court’s denial
of an application to appoint a special administrator pursu-
ant to § 30-2457(2) was a final order. As already described,
§ 30-2457(2) grants to a person interested in the estate the
right to petition for appointment of a special administrator to
preserve the estate and secure its proper administration. Not
only was this right finally determined by the court’s order,
but we explained that this right could not be effectively vin-
dicated upon appeal from entry of the later final judgment.28
Explaining that the probate of an estate can remain open for
22
See, In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007); In re
Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992); In re Estate of
Snover, supra note 10.
23
In re Estate of Snover, supra note 10.
24
Id.
25
In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).
26
See id.
27
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
28
See id.
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years, we said that after the appeal from the final judgment, a
“special administrator cannot go back in time and preserve or
administer the estate long after the application to appoint has
been denied.”29
We find these cases inapposite to the present appeal. Even if
a personal representative’s substantial rights are affected by an
order granting a petitioner’s request to remove for cause under
§ 30-2454,30 the April 10, 2017, order did not remove Mark
as the personal representative. While priority among persons
seeking appointment “who are not disqualified” is set forth
by § 30-2412, to the extent Mark asserts that his right under
§ 30-2412 has been affected, the order before us is not a final
determination of his appointment.
[10] Likewise, our holding in In re Estate of Muncillo does
not apply to the facts of this case. To be a final order, the
substantial right affected must be of the appellant and cannot
be claimed vicariously.31 Given that Mark’s status as personal
representative has not been finally determined, Mark’s remain-
ing right allegedly affected is merely to prohibit the appoint-
ment of a special administrator to protect the estate while the
underlying will contest and his qualifications as personal rep-
resentative are litigated. It is unclear where such a right might
come from.
Any alleged right to avoid the appointment of a special
administrator is meaningfully different from the right con-
ferred by § 30-2457(2) to seek the appointment of a special
administrator to protect the estate upon commencement of a
formal proceeding that calls into question the informal appoint-
ment. Unlike an informally appointed personal representative,
the special administrator is appointed by the court in a for-
mal proceeding after notice and a hearing in which the court
has determined that the appointment is necessary to preserve
29
Id. at 674, 789 N.W.2d at 42.
30
See In re Estate of Weingarten, 10 Neb. App. 82, 624 N.W.2d 653 (2001).
31
See, e.g., In re Adoption of Amea R., supra note 15.
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the estate.32 Absent a motion to remove the special administra-
tor for cause, there is no reason to conclude that the appoint-
ment of the special administrator creates a risk of improper
administration of the estate that cannot later be undone. This
is in contrast to the refusal to appoint a special administrator
under the circumstances described in § 30-2425.
Other courts with similar final order jurisprudence distin-
guish orders appointing special administrators, which they
hold are not final, from orders appointing or removing a per-
sonal representative, which they hold are final.33 The court in
Estate of Keske,34 for instance, reasoned that the appointment
of a special administrator is not the kind of interim order that
precluded further hearing and investigation of the rights of
the parties.
With regard to its effect on any right of the appellant, the
April 10, 2017, order is analogous to the order we held was
not final in In re Estate of Peters.35 In In re Estate of Peters,
we held that an order reappointing a personal representative
after an estate has been formally closed is not a final order,
because it does not affect a substantial right. The estate had
been reopened upon discovery that a specific bequest had not
been paid, and as a result, excess distributions were made to
the residuary beneficiaries of the estate.36 We noted that while
reopening the estate and reappointing the personal representa-
tive forced the heirs to defend their distributions, which they
claimed was an improper collateral attack, the order was not
dispositive of their rights.37
32
See § 30-2457.
33
See, Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); Estate of
Keske, 33 Wis. 2d 64, 146 N.W.2d 450 (1966). But see Matter of Estate of
Franchs, 722 P.2d 422 (Colo. App. 1986).
34
Estate of Keske, supra note 33.
35
In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000).
36
See id.
37
See id.
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We cited, with approval, In re Miller Estate,38 wherein the
court said that the test of finality of a probate order is whether
it affects with finality the rights of the parties in the subject
matter. We concluded that the court’s order did not affect a
substantial right, because it did not diminish with finality
the heirs’ claims and defenses to returning a portion of their
bequests.39 The order simply was not dispositive of any of the
rights of the parties.40
[11] Similarly, here, the April 10, 2017, order did not affect
with finality Mark’s substantial rights. We hold that in and of
itself, and without additional facts indicating otherwise, an
order appointing a special administrator pursuant to § 30-2425
is not a final order.
We note that in In re Estate of Lorenz,41 the Nebraska Court
of Appeals addressed the merits of an appeal directly from an
order of summary judgment in probate proceedings, which
determined the allowance of the interested person’s claim
against the estate, will contest, and request for the appoint-
ment of a special administrator. But the court’s order appeared
to be a final determination of the interested person’s claim,
and the Court of Appeals did not discuss why it considered the
order to be final.42
Likewise, the Court of Appeals’ decision in In re Estate
of Wilson43 does not stand for the proposition that an order
appointing a special administrator is final. The court did not
discuss the direct appealability of the order, which, in any
event, was the denial of a motion to vacate a prior appoint-
ment of the special administrator. The special administrator
38
In re Miller Estate, 106 Mich. App. 222, 307 N.W.2d 450 (1981).
39
See In re Estate of Peters, supra note 35.
40
See id.
41
In re Estate of Lorenz, 22 Neb. App. 548, 858 N.W.2d 230 (2014),
reversed in part on other grounds 292 Neb. 543, 873 N.W.2d 396 (2016).
42
See id.
43
In re Estate of Wilson, 8 Neb. App. 467, 594 N.W.2d 695 (1999).
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in In re Estate of Wilson had been appointed some 21 months
before. If anything, the court’s decision in In re Estate of
Wilson stands for the proposition that the appointment of a
special administrator is not a final order. For, if it were, then
the appellant’s failure to appeal from the order within 30 days,
as required by Neb. Rev. Stat. § 25-1931 (Reissue 2016) would
have foreclosed a later challenge to the appointment.
[12,13] We do not entertain direct appeals from interlocutory
orders in order to avoid piecemeal review, chaos in trial proce-
dure, and a succession of appeals granted in the same case to
secure advisory opinions to govern further actions of the trial
court.44 The underlying purpose of the Nebraska Probate Code
is to promote a speedy and efficient system for liquidating the
estate of the decedent and making distribution to the succes-
sors.45 Allowing a piecemeal appeal from an order appointing a
special administrator defeats that purpose.
[14] We find no merit to Mark’s argument that even if the
appeal is not from a final order or judgment, we have appel-
late jurisdiction to consider whether the lower court acted
without jurisdiction. The legal proposition upon which Mark
relies states that though we lack jurisdiction over the merits
of an extrajurisdictional act, we have jurisdiction to determine
whether the lower court had the power to enter the judgment or
final order sought to be reviewed.46 Our jurisdiction to review
whether the lower court acted extrajurisdictionally presupposes
our appellate jurisdiction over an appeal from a final order
or judgment.
We have never held that we have appellate jurisdiction to
determine if the lower court acted within its jurisdiction in
an appeal from a nonfinal order. Our appellate jurisdiction is
governed by statute. Nowhere does the Legislature provide
44
State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
45
Neb. Rev. Stat. § 30-2202 (Reissue 2016); In re Estate of Kentopp.
Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).
46
In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
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for our immediate review of all interlocutory orders alleged
to be entered by the lower court without jurisdiction. The
Legislature has provided only, as relevant here, that an order
is final if it affects a substantial right. Whether the lower court
acted with jurisdiction does not change the nature of the right
affected by the court’s action. To the extent that the Court of
Appeals in In re Interest of Angeleah M. & Ava M.47 concluded
differently, that case is disapproved.
We have already concluded in this case that the April 10,
2017, order did not affect Mark’s substantial rights. We express
no opinion on the merits of Mark’s argument that the county
court lacked jurisdiction to appoint a special administrator once
the will contest had been removed to district court.
CONCLUSION
For the foregoing reasons, we lack jurisdiction over Mark’s
appeal from the April 10, 2017, order. We dismiss the appeal.
A ppeal dismissed.
Wright, Miller-Lerman, and K elch, JJ., not participating.
47
In re Interest of Angeleah M. & Ava M., 23 Neb. App. 324, 871 N.W.2d 49
(2015).
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447 F.3d 558
UNITED STATES of America, Plaintiff-Appellee,v.Linda Ray GARDNER, Defendant-Appellant.
No. 05-2638.
United States Court of Appeals, Eighth Circuit.
Submitted: January 9, 2006.
Filed: May 3, 2006.
James W. Wyatt, Little Rock, AR, for appellant.
Angela S. Jegley, Asst. U.S. Attorney, Little Rock, AR, for appellee.
Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
LOKEN, Chief Judge.
1
A jury convicted Linda Ray Gardner of conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846. The district court granted Gardner's motion for a new trial. The government appealed, and we reversed. United States v. Gardner, 396 F.3d 987 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 153, 163 L.Ed.2d 153 (2005). On remand, the district court1 sentenced Gardner to 120 months in prison. She appeals, raising three evidentiary issues. We affirm.
I.
2
Ruby Eastep was the first of the government's twenty-three witnesses at trial. Eastep testified that she was a high school classmate of Gardner who began using methamphetamine in 1994 while residing in Merced, California. Eastep purchased the drugs from Mexican suppliers introduced by a friend, Chris Smith. Eastep moved back to Arkansas in 1994 and began supplying local distributors, including Gardner. Eastep testified that she made twenty-four trips between California and Arkansas in the next two or three years, each time delivering Gardner between a quarter-pound and two pounds of methamphetamine.
3
Early in her direct examination Eastep testified that she brought Chris Smith to Arkansas during this period and that Gardner's sister, Tina Spears, introduced Smith to Gardner. Defense counsel objected to this testimony as inadmissible hearsay. See Fed.R.Evid. 802. The government argued it was testimony excluded from the definition of hearsay and admissible as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Following the procedure approved by this court, the district court conditionally admitted the testimony as a coconspirator statement and then found at the end of the trial that the government had demonstrated by a preponderance of the evidence "(1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy." United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978). On appeal, Gardner argues that the district court abused its discretion in admitting this testimony because Smith's introduction to Gardner was not "in furtherance of" the conspiracy. She argues that the testimony was prejudicial hearsay because it linked her to a methamphetamine broker from California.
4
Later in her direct examination, Eastep testified that she went to California in 1996 to buy five pounds of methamphetamine for Gardner and another Arkansas distributor. While there, Eastep had a falling out with Smith and his Mexican supplier, and they refused to supply Eastep with methamphetamine. Later, Eastep telephoned Gardner, who said that Smith had already called and would directly supply her. Thereafter, Eastep was "cut out of the middle," and Gardner purchased directly from Smith and his Mexican suppliers. Gardner's statement to Eastep was not hearsay; it was an admission by a party admissible under Rule 801(d)(2)(A) of the Federal Rules of Evidence. It was also far more prejudicial to Gardner's defense than the earlier statement by Spears that she introduced Smith to Gardner two years previously. The introduction provided relevant background because it explained how Smith knew to call Gardner and offer to supply her directly. But Gardner's 1996 statement that Smith would be supplying her directly was admissible without the background statement by Spears.
5
In general, statements by coconspirators concerning their distribution of drugs or their efforts to recruit other conspirators are admissible as in furtherance of the conspiracy. See United States v. Sanchez-Berrios, 424 F.3d 65, 74-75 (1st Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1105, 163 L.Ed.2d 917 (2006); United States v. Mickelson, 378 F.3d 810, 820 (8th Cir.2004); United States v. Ortiz-Martinez, 1 F.3d 662, 674 (8th Cir.), cert. denied, 510 U.S. 936, 114 S.Ct. 355, 126 L.Ed.2d 319 (1993). Here, even if Spears's statement that she introduced Smith to Gardner, standing alone, was only marginally "in furtherance of" the conspiracy, any error was harmless because other admissible testimony established that Smith directly supplied Gardner with methamphetamine. See United States v. Lopez, 384 F.3d 937, 942 (8th Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 1078, 163 L.Ed.2d 897 (2006); United States v. Mitchell, 31 F.3d 628, 632 (8th Cir.1994).
6
Gardner further argues that this testimony violated her Sixth Amendment Confrontation Clause rights because the government failed to demonstrate that the declarant, Tina Spears, was unavailable. This argument is based upon outdated Eighth Circuit decisions. See United States v. DeLuna, 763 F.2d 897, 909-10 (8th Cir.1985); United States v. Massa, 740 F.2d 629, 638-39 (8th Cir.1984). Those decisions were overruled in United States v. Inadi, 475 U.S. 387, 391, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), where the Supreme Court held that the Confrontation Clause does not require "a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E)." See also Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Reyes, 362 F.3d 536, 540-41 (8th Cir.), cert. denied, 542 U.S. 945, 124 S.Ct. 2926, 159 L.Ed.2d 826 (2004).
II.
7
Government witness Mazda Rasasy testified that he began delivering methamphetamine from California to Gardner in Arkansas after Smith became Gardner's supplier. Rasasy testified that he initially drove the shipments to Arkansas, but his superior told him to fly the drugs to Arkansas after an encounter with law enforcement. Rasasy then transported the drugs on Southwest Airlines flights between Sacramento and Little Rock. Toward the end of its case in chief, the government introduced a Southwest Airlines document showing that numerous flight reservations were made in Rasasy's name in the year 2000, including flights originating or ending in California and Little Rock. The document was authenticated by the testimony of Lisa Stewart, a Southwest Airlines records custodian. The district court overruled Gardner's relevancy objection to this evidence.
8
On appeal, Gardner argues the evidence was irrelevant because it failed to show "who made the reservations, whether any of the reservations were actually used, whether they were for round-trip or one-way travel, or whether Little Rock was ever a final destination." But the evidence was relevant as that concept is defined in Rule 401 of the Federal Rules of Evidence. The numerous airline reservations in Rasasy's name were some support for his testimony that he was serving as a drug courier by air that year. The uncertainties noted by Gardner — which defense counsel effectively established on cross-examination — went to the weight of the evidence, not its admissibility. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927 (2d Cir.1977). The district court did not abuse its discretion by admitting this relevant evidence.
III.
9
The government presented evidence connecting Gardner with "Ace," a debt collector the Mexican suppliers sent to Arkansas from time to time. The first witness to establish the connection was Eastep, who testified:
10
Q: Now, you've testified about someone that you knew as Ace. Where did you see Ace?
11
A: At Linda's, Linda Gardner's house.
12
Q: How many times have you seen Ace at Linda Gardner's house?
13
A: Several times. He stayed there for a few weeks when he was there.
14
Q: Do you remember approximately when that was?
15
A: 2001, I believe.
16
Gardner objected and moved for a mistrial, arguing that testimony to events in 2001 was improper because it was outside the period charged in the indictment, which alleged a conspiracy "in or about 1994 through in or about 2000." The district court observed that it was "discretionary with the Court" to allow evidence beyond the dates of the alleged conspiracy. The court then denied the motion for a mistrial, struck Eastep's testimony as to 2001, and said it would instruct the jury to disregard the testimony if Gardner requested that instruction. Gardner declined. Following Eastep's unexpected reference to 2001, the government made no further inquiry into events after 2000 with any witness.
17
On appeal, Gardner argues that the court abused its discretion in denying her motion for a mistrial. See United States v. Hollins, 432 F.3d 809, 812 (8th Cir.2005) (standard of review). Gardner cites no authority establishing that the testimony was improper, much less grounds for a mistrial. As a general matter, the government ventures into dangerous territory when it offers evidence of similar wrongdoing outside the alleged conspiracy period. Such evidence may be excludable under Federal Rules of Evidence 404(b) and 403. It is reversible error if it constructively amends the indictment by creating a substantial likelihood the defendant will be convicted of an uncharged offense. Or it may be a material variance, changing the evidence but not the charge, in which case its admission is reversible error if the defendant is prejudiced. See United States v. Johnston, 353 F.3d 617, 623 (8th Cir. 2003), cert. denied, 541 U.S. 1068, 124 S.Ct. 2403, 158 L.Ed.2d 973 (2004).
18
In this case, Eastep did not testify to wrongdoing by Gardner in 2001. To be sure, the innocuous reference to an event in 2001, if pursued by the government in greater detail, would have raised an inference that the conspiracy lasted beyond the period alleged in the indictment. At some point, that variance could become material. But the district court avoided the danger by striking Eastep's first unanticipated reference to 2001 and by offering the defense a curative instruction. There was no further reference to events in 2001, and substantial testimony by later witnesses linked Gardner and Ace during the period alleged in the indictment. Accordingly, even if Eastep's vague reference to an event in 2001 was improper, the district court did not abuse its discretion in denying Gardner's motion for a mistrial. Compare United States v. Cole, 380 F.3d 422, 427 (8th Cir.2004).
19
The judgment of the district court is affirmed.
Notes:
1
The HONORABLE WILLIAM R. WILSON, Jr., United States District Judge for the Eastern District of Arkansas
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23 So.3d 120 (2009)
STEPHENS
v.
STATE.
No. 2D09-1945.
District Court of Appeal of Florida, Second District.
December 4, 2009.
Decision Without Published Opinion Affirmed.
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871 P.2d 343 (1994)
Gale Lawrence PEARSON, Appellant,
v.
Thomas M. PEARSON, Respondent.
No. 23635.
Supreme Court of Nevada.
March 30, 1994.
Richard W. Young, Reno, for appellant.
Ronald J. Logar, Reno, for respondent.
OPINION
STEFFEN, Justice.
Appellant, Gale Lawrence Pearson ("Lawrence"), filed a complaint for divorce against respondent Thomas M. Pearson ("Pearson"). In an atmosphere of hostility between the parties, the district court issued a divorce decree and a temporary order of custody requiring both parties to submit reports regarding permanent custody. A psychological report was also received by the district court. Based upon preceding court hearings, the reports and filings of both parties and the psychological report, the district court awarded permanent physical custody to Pearson. Lawrence appeals, claiming no notice or opportunity to be heard and improper ex parte communication between the judge *344 and the psychologist. For reasons unrelated to the rulings of the district court judge, we reverse and remand this matter to the Washoe County Family Court for a custody hearing.
STATEMENT OF FACTS
Lawrence and Pearson were united in marriage in 1977 and later two children blessed their union. However, in 1988, while Lawrence was in medical school at the University of Nevada, Reno, the marriage soured and divorce proceedings were initiated. The desire of each parent to obtain primary physical custody of the children has been hotly disputed and forms the basis for this appeal. On August 14, 1990, after nearly two years of discordant hearings and interactions between the parties (and to an extent counsel), the district court issued its findings of fact, conclusions of law, judgment and decree of divorce. The district court indicated that the custody provisions, as set forth in the decree, were temporary and that custody would be reevaluated one year later. In addition, the district court ordered both parties to submit a report to the court pointing out specific efforts made during the preceding year to facilitate a better environment for the children.
In accordance with the divorce decree, both parties filed their respective reports with the district court in May of 1991. Several months later, each party filed a "Request for Submission of Motion." Under the rules of court pursuant to which the form notice was provided, the form request was used to inform the court that the matter was being submitted for decision by the court. See Second District Court Rule 12.
In March of 1992, at the direction of the district court, Dr. Robert McQueen began evaluations of Pearson, Claudia (Pearson's new wife), the Pearson children and Claudia's daughter. Lawrence received a letter from Dr. McQueen dated March 30, 1992, inviting her to meet with him at her convenience, mornings, afternoons, evenings or weekends, and advised her that he would be submitting his report to Judge Whitehead during the first half of May. Lawrence failed to respond to Dr. McQueen's invitation. Nearly two months later, Lawrence's attorney, Richard Young, sent a letter to Dr. McQueen dated May 26, 1992, advising him that Lawrence would be "quite willing to interview with you [Dr. McQueen] to assist in any way possible." However, by that time, the report had already been submitted to the district court. Remarkably, no further action was taken by Young until the district court issued the order from which this appeal is taken.
The purpose of Dr. McQueen's evaluation was to assist the court in reaching a custody determination. See NRS 125.490(3). The record indicates that Dr. McQueen retained the assistance of Dr. Helen L. Krell, Associate Clinical Professor of Psychiatry, University of California Davis Medical School, who had previously evaluated and provided treatment for the elder Pearson child. A letter from Dr. McQueen to Lawrence's attorney indicates that this report was completed and delivered to Judge Whitehead "a day or two before May 15th, 1992."
On July 23, 1992, the district court filed its order which modified the temporary custody order of August 14, 1990, and provided that Pearson would have primary physical custody. The July 23rd order provoked this appeal by Lawrence. She alleges that the district court's failure to provide notice and a hearing prior to determining the issue of primary custody violated her constitutional due process rights. Additionally, Lawrence contends that the district court's reliance on the reports, which were not provided to the parties, inappropriately prevented her from testing their validity by cross-examining the individuals who prepared them. Finally, she alleges that because Judge Whitehead reviewed a "phantom and/or fugitive report" that he in some way placed himself in a position of bias that requires his disqualification in the event this court decides to remand the matter for further proceedings.
DISCUSSION
Lawrence contends that her due process rights were ignored because she did not receive notice, a hearing or the right to be heard prior to the court's determination of *345 custody. We conclude that this assertion is at best disingenuous.
The record makes it abundantly clear that as early as August 31, 1989, Judge Whitehead was contemplating the appointment of an independent expert to assist him in reaching a custody determination.[1] (See Appendix A). It is equally clear, contrary to attorney Young's representations at oral argument, that both parties were fully aware of the fact that the court would invite an independent psychological evaluation which would be submitted directly to the court. Moreover, as indicated above, in March of 1992, Dr. McQueen sent Lawrence a letter informing her of the evaluations and inviting her to participate at any time convenient to her schedule.
Presumably advised by Lawrence that a report was to be submitted to Judge Whitehead in the first half of May, Young did not respond to the doctor until May 26, 1992. Dr. McQueen answered Young's letter from his Colorado vacation spot indicating, in part:
When I received no response from [Lawrence] to my letter I frankly felt it would be presumptuous of me to press her further and I did not do so. I did, however, continue the schedule of meetings I had outlined in my letter to her and a report of those interviews was delivered to Judge Whitehead's chambers a day or two before May 15th, 1992 (emphasis added).
It is thus clear that Lawrence and her counsel did in fact know that psychological evaluations had been taking place and that a report had been delivered to Judge Whitehead. If Lawrence was as surprised and outraged over the submission of Dr. McQueen's report as her counsel indicated at oral argument, she should understand that Young did nothing to express his or his client's concern to the district court judge regarding the submission of the report. Furthermore, Young admitted that no contact was made with the district court to ascertain the whereabouts or the contents of the psychological report, nor did he request a copy of the report or a hearing to discuss the substance of the report.
We are troubled by the combination of Young's inaction and his unsupported, strident and reckless comments against the district court judge expressed in his appellate briefs and at oral argument. As an attorney with extensive experience in family law, Young must know the procedures necessary to protect his client's rights. It ill behooves counsel to attempt to shift the blame for his own derelictions on to the trial judge whose diligence and fairness in this matter is amply attested to in the record. The record clearly reveals that if indeed there were any deficiencies in the proceedings below, they were clearly invited by Young's acts of commission and omission.
The doctrine of "invited error" embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the court or the opposite party to commit. It has been held that for the doctrine of invited error to apply it is sufficient that the party who on appeal complains of the error has contributed to it. In most cases application of the doctrine has been based on affirmative conduct inducing the action complained of, but occasionally a failure to act has been referred to.
5 Am.Jur.2d Appeal and Error § 713 (1962), p. 159-60. See People v. Marshall, 50 Cal.3d 907, 269 Cal.Rptr. 269, 280, 790 P.2d 676, 687 (1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1023, 112 L.Ed.2d 1105 (1991); Pettingill v. Perkins, 2 Utah 2d 266, 272 P.2d 185, 186 (1954). Furthermore:
The rule that error induced or invited by the appellant is not a proper subject of review on appeal has been applied, in both civil and criminal cases, to a large variety of trial errors, including claimed misconduct of the judge, or alleged error having to do with the jury.
5 Am.Jur.2d Appeal and Error § 721 (1962), p. 165. Since Young, on behalf of his client, filed the form requesting submission of the *346 matter to the court for decision, Lawrence may not be heard to complain of the decision which resulted from her own attorney's request. Nevertheless, and despite Young's failure to provide a basis for relief for his client on appeal, we have elected to remand this action for other reasons.
At the outset of his argument on appeal, Young launched an unseemly attack on the trial judge and attempted to bury his own derelictions in the din. Young thus attempted to portray the trial judge as having engaged in a "secret" maneuver to deprive Lawrence of her right to due process in the contest for custody of the children. The record is utterly devoid of support for Young's effusive and irresponsible comments. We are nevertheless left with an attorney's public representation that his client, the mother of the children whose interests are paramount to this court, as they obviously were to Judge Whitehead, did not have an opportunity to personally urge her position on the subject of custody in the district court. It is clear from the record that Judge Whitehead never denied Lawrence a hearing and there is no reason to assume that the judge would have refused Lawrence a hearing if her attorney had been motivated to ask for one rather than do nothing other than stand on the form previously filed requesting that the matter be submitted for decision. Nevertheless, given the seriousness of issues of custody of children and the fact that Lawrence did not previously take advantage of seeking a hearing prior to the court's decision on the issue of custody (and now erroneously claims that she was denied that opportunity), we are forced to consider whether perceptions of justice may have been obscured by the distorted picture painted by Young in his briefs and during oral argument.
Mr. Young insisted that the psychologist's report came "out of the clear blue sky." However, Young's statement is thoroughly belied by the record. Lawrence and her counsel were well aware of the appointment of an independent psychologist, both through discussion with the court and, as noted above, through direct correspondence with Dr. McQueen. Moreover, with the exception of one psychologist, attorney Young stated to Judge Whitehead that he did not care who the judge appointed to conduct the evaluation.
We attach by way of an appendix to this opinion a transcript of contradictory statements made by Young at oral argument. (See Appendix B.) A careful review of all documents before us indicates that Judge Whitehead set forth a procedure whereby permanent custody would be determined, complete with a provision for a hearing. Pursuant to that procedure, Pearson and Lawrence filed their reports on May 2, 1991, and May 21, 1991, respectively. At the time of filing, Young attached a cover page to his client's report which reads: "Plaintiff, GALE LAWRENCE PEARSON, by and through her attorney, RICHARD W. YOUNG, ESQUIRE, hereby respectfully submits her written report, with exhibits attached thereto."
Over two months after the filing of the aforementioned reports, Pearson and Lawrence both filed a "Request for Submission of Motion" which instructs the court that the "above-entitled matter be submitted to the Court for decision." (Emphasis added.) Thereafter, the district court did precisely what was asked of it. Incredibly, at oral argument Young attempted to persuade this court that, despite his extensive experience in family law, he felt that the form he used was the only way to submit something to the court. We reject as inherently unbelievable counsel's explanation for using the printed form, the purpose for which is clear on its face, over two months after he had submitted the Lawrence report to the court with the cover sheet referred to above.
Approximately one year after counsel had submitted the matter, the report of Dr. McQueen was sent directly to Judge Whitehead according to the procedure which had previously been explained and agreed upon by counsel. It is evident, and we so conclude, that Judge Whitehead, upon seeing form requests from both parties for a decision, properly proceeded to issue a permanent custody order as requested by counsel. Moreover, the procedure which the judge outlined, and which was approved by counsel, *347 was followed until the court received, from both parties, requests that the matter be submitted to the court for decision.
In order to maintain an orderly flow of cases through the judicial system, the district court must be able to rely upon the procedural requests of counsel in resolving matters. To assume that Judge Whitehead or any other district court judge could have divined Young's unexpressed and contradictory intent to have a hearing from the plain terms of the submission form is, at best, totally unrealistic. Moreover, the travesty is compounded by attempting to blame the district judge for not somehow sensing the thought processes of counsel and scheduling a hearing contrary to the written request that the matter be submitted for a decision.
In light of the serious nature of a child custody determination and because of the inadequate representation received by Lawrence, which may have precluded her from presenting her position at a hearing, we feel constrained to remand this matter so that she may voice her views prior to a permanent custody determination.
The Washoe County Family Court was created on January 4, 1993, and empowered with exclusive jurisdiction to preside over child custody matters. See NRS 3.0105 and NRS 3.223. Although Judge Whitehead could properly complete this custody determination that he has presided over for such a lengthy period, we do not consider it fair to him that he do so. This matter has been sufficiently tainted by distorted public comments to make it extremely difficult for the judge to carry out his responsibilities in an atmosphere conducive to an objective determination of the best interests of the children. We nevertheless encourage the family court, upon remand, to become intimately familiar with the voluminous record of prior proceedings in this matter. Great expenditures of time, energy and scarce financial and judicial resources have resulted from the bitter perpetuation of this litigation. Moreover, the acrimony exhibited in this particular case has given rise to what may fairly be described as inappropriate conduct. The family court should carefully scrutinize this conduct in an effort to reach a custody resolution which will best serve the interests of the Pearson children. We also note that we remand this matter with a substantial degree of reluctance given Lawrence's failure to participate in the interviewing process with Dr. McQueen and Young's derelictions and lack of candor as an officer of the court.
CONCLUSION
After careful review of the record and oral argument, we conclude that the district court acted properly in this action and genuinely sought to promote the best interests of the children in an atmosphere otherwise only incidentally attuned to their welfare. We nevertheless conclude, for reasons stated above, that the order issued below will be vacated and the matter remanded to the family court for further proceedings consistent with this opinion. In the interim, however, the children shall remain in the custody of Pearson in accordance with the district court's determination. The family court is directed to thoughtfully consider all relevant documentation before it and to conduct a hearing for the purpose of determining the parent best suited to have primary custody of the children.[2]
YOUNG and SPRINGER, JJ., concur.
*348 APPENDIX A
The following colloquy transpired at the end of the presentation of evidence by both parties. There Judge Whitehead indicated:
The Court: What would the parties think to the Court appointing a psychiatrist to interview both the plaintiff and the defendant in this matter and report directly to the Court?
Mr. Logar: Your Honor, I would have no objection to that. . . .
. . . .
Mr. Young: We have no objection to an outside psychiatric evaluation, your Honor.
. . . .
The Court: Let me ask you both: Mechanically, do you wantI'm trying to think both how to move this along and keep your costs down. I'm sure they're astronomical anyway. Do you want a physician to simply send me written reports and submit it? Do you want him called back in to testify and be cross-examined?
. . . .
The Court: My next question was: Mechanically, do we do itdo we ask the doctor to submit written reports directly to the Court and close it, or do you want to call him in and both of you take a shot at him? Mr. Young?
. . . .
Mr. Young: That's a difficult one to answer, your Honor, because it obviously depends upon what Mr. Logar is going to do.
The Court: I think you both should do the same thing.
Mr. Young: I'm sure we would.
The Court: What I meant, would agree right now, just submit it or to agree right now to have a hearing in which the expert would testify.
. . . .
The Court: Okay. Let me just set the procedures: I will appoint a physician to report back to the Court in writing. Within five days after the reporting, present it to counsel. They areif they want to file a request for an oral hearing and state the reasons, the Court will consider at that time whether the reasons warrant having an oral hearing. That will be the procedure.
. . . .
Mr. Young: Your Honor, I understand the process.
. . . .
APPENDIX B
The following colloquy took place at oral argument before this court:
Justice Steffen: You're telling me there wasn't even a conference in chambers and you didn't know there was a professional and that Dr. McQueen surfaced out of the blue. Is that correct?
Mr. Young: . . . there very well may have been discussions about what we were going to do with this case, and there may have been discussions about the possible use of a mediator, a referee or something else. . . .
. . . .
Thereafter, Mr. Logar was addressed as follows:
Justice Steffen: Counsel, before we get to that (inaudible), Mr. Young, as an officer of the court, recalls no mention of Dr. *349 McQueen in a conference in chambers and indicates that there may have been a discussion about the possibility of a mediator or someone being brought in, period. Now, in your brief, you indicate that Judge Whitehead specifically informed counsel for the parties that he was appointing Dr. McQueen to act as a mediator, to meet with both of the parties and the trial judge directed the parties to meet with Dr. McQueen. . . . Is that correct?
Mr. Logar: Yes. Counsel's recollection may be faulty. Mine is not. Specifically, in chambers on June 19, the district judge indicated to us that he wanted to appoint a professor at the University of Nevada named McQueen, who is a clinical psychologist that he had used in the past to do assessments, he called it, in custody matters and was going to appoint Mr. McQueen, at which time there was no objection by either counsel made. He indicated that he wanted the parties to contact McQueen and make arrangements with him so that he could do his assessment and that he would make a report to the court. We never anticipated that the report would be made public, and by that I mean sent to the parties or their counsel. We considered, at least on the respondent's side, that that report would be held in camera by the court, as such assessments are, and that we would be notified when the report had been submitted. And at that point we could request copies of it, make objections, have a hearing if we decided to, and that was the procedure that was discussed.
. . . .
Justice Steffen: Mr. Logar, if I can interrupt you here. I assume that this is a transcript. We are informed that the judge met with both parties and the following colloquy occurred. First, by the judge:
The Court: What would the parties think to the court appointing a psychiatrist to interview both the plaintiff and the defendant in this matter and report directly to the court? Mr. Logar?
Mr. Logar: Your honor, I would have no objection to that.
. . . .
The Court: Mr. Young?
Mr. Young: We have no objection to an outside psychiatric evaluation, your honor.
. . . .
The Court: My next question was: mechanically, do we do itdo we ask the doctor to submit written reports directly to the court and close it, or do you want to call him in, and both of you take a shot at him? Mr. Young?
. . . .
The Court: Okay. Let me just set the procedures: I will appoint a physician to report back to the Court in writing. Within five days after the reporting, present it to counsel. They areif they want to file a request for an oral hearing and state the reasons, the Court will consider at that time whether the reasons warrant having an oral hearing. That will be the procedure.
Justice Steffen: So, evidently, this was discussed.
. . . .
Justice Steffen: . . . So, if this is correct, the entire procedure was discussed with both attorneys. Neither made an objection.. . . Rather than asking for hearing, [the motion to submit form] is in effect saying that the matter is submitted as it states right in here, to the court for decision.
. . . .
Mr. Logar: Your interpretation is correct. What you are referring to are comments made at the conclusion of the trial back in 1990. . . .
. . . .
Justice Steffen: And then after this occurred, later on there was the conference in chambers where Judge Whitehead specifically mentioned the name of Dr. McQueen?
Mr. Logar: Exactly.
Then on rebuttal, Mr. Young represented to this court the following:
Mr. Young: I absolutely disagree that there was a meeting with respect to the appointment of this particular man *350 McQueen with all of the procedures, etc., set forth by Mr. Logar. That didn't happen. That did not happen.
. . . .
Mr. Young: And it has never, I am telling you as an officer of this court and many other courts, that was never, never, ever the agreement.
Justice Steffen: Well, Mr. Logar says that it was.
. . . .
Justice Steffen: So what are we to do?
Mr. Young: Mr. Logar is wrong, because that was not the agreement, ever.
Justice Steffen: Well, I understand that it is a very, it's a very complex thing, Mr. Young, but it appears to me that there are some strange things that occurred. Because clearly you knew that Dr. McQueen was involved. . . .
SHEARING, Justice, with whom ROSE, Chief Justice, joins, concurring:
I agree that the custody order issued by the district court should be vacated and the case remanded to the family court for a redetermination of custody. However, I do not agree with the majority opinion that the proceedings below conformed to the law of this state.
After a long and acrimonious trial, the district court issued Findings of Fact, Conclusions of Law, Judgment and Decree of Divorce which were filed on August 14, 1990. The document contained an order for child custody which was to be effective until June 1, 1991. The parties were to have joint physical and legal custody of their two sons, but the mother was to have primary care, custody and control of James, while the father was to have primary care, custody and control of Cameron. The order spelled out a detailed visitation schedule. The order also required the parties to submit a written report to the court describing in detail certain actions in relation to their children. The court further ordered that "a hearing will be held in the month of June, 1991, in this Court, for the purpose of reviewing the . . . child custody and visitation order."
The reports required by the order were filed by the parties, but the court-ordered hearing was never held. Custody remained the same until July 23, 1992, at which time the district court issued an order granting the father primary physical care, custody and control of both boys. The change in custody was largely based on a report by clinical psychologist, Robert McQueen, which was dated May 11, 1992. There is apparently no dispute that the court gave no notice to the mother or her counsel either that McQueen had been appointed or that a report had been prepared or submitted.
Three years earlier at the trial in August 1989, the court and counsel had discussed the possibility of the court appointing a psychiatrist to interview the parties and submit a report. The court outlined a procedure whereby the court would appoint a physician to report back to the court; within five days, it would present the report to counsel; then counsel could file a request for an oral hearing which the court would consider. However, the subsequent decree of August 14, 1990, outlined a different procedure without any mention of an independent evaluation. Neither the procedure outlined at trial in August 1989 or in the August 1990 decree was followed.
The 1992 order depriving the mother of primary physical custody of her son was issued without notice that change of custody based on new information was even being considered. Assuming that the Request for Submission of Motion submitted by counsel in 1991 meant that the parties had waived the oral hearing which the court had promised, it cannot be construed to waive any right to any notice or hearing regarding subsequently developed information known to the court alone.
The mother was given no opportunity to review or contest McQueen's report. McQueen did send her a letter dated March 30, 1992, informing her that he was preparing a report. However, under the particular circumstances of this case, the mother did not even have an opportunity to be consulted before the report was prepared in view of the fact that she was on a medical school surgical rotation in Las Vegas at the time of the *351 evaluation. When her attorney contacted McQueen in May, McQueen replied that the report had been submitted and stated, "When I received no response from Ms. Lawrence to my letter I frankly felt it would be presumptuous of me to press her further and I did not do so." In other words, he never even bothered to check whether she had received his letter and the court itself had given no notice of the appointment to either the mother or her counsel.
There is no dispute that the parties had three years earlier agreed to an examination by experts, but there was never any waiver of their rights to cross-examine the experts, to present rebuttal evidence, or to be heard. In fact, the court had outlined a procedure for assuring these rights, but later did not follow it. That a mother should be deprived of the physical custody of her child without these basic rights violates the concepts of fundamental fairness and due process which is basic to our legal system.
This court has made clear that a court making an award of custody without notice or hearing is acting in excess of its jurisdiction. Matthews v. District Court, 91 Nev. 96, 531 P.2d 852 (1975). In Matthews, the judge had issued a divorce decree reserving a determination of custody until "a later date following psychiatric and/or psychological examinations and testimony of the parties as stipulated." 91 Nev. at 97, 531 P.2d at 852. Subsequently, the judge changed the child custody without any further notice to the parties. This court granted a writ of prohibition restraining enforcement of the order and "restraining any transfer of the parties' children from the plaintiff-petitioner's care without notice and due opportunity to be heard." Id. at 98, 531 P.2d at 853. Although the decree stated that permanent custody would be determined later, this court required notice and hearing because "the decree did not specify how expert opinions were to be received by the court, whether the parties had waived cross-examination of the experts, what rebuttal evidence would be adduced, nor the time or manner in which the issue of child custody would be brought before the court for its final consideration." Id. at 97, 531 P.2d at 852.
In the case before us, the decree stated the time and manner in which the issue would be brought before the court, namely at a hearing in June of 1991, but this hearing never took place. Instead, a psychologist was appointed apparently much later, and the court made a decision based on this psychologist's report without notice, without the opportunity for further input or cross-examination or presentation of rebuttal evidence. This is unacceptable under our system of justice. This court reaffirmed this view most recently in Moser v. Moser, 108 Nev. 572, 576-577, 836 P.2d 63, 66 (1992), saying:
Litigants in a custody battle have the right to a full and fair hearing concerning the ultimate disposition of a child. Matthews v. District Court, 91 Nev. 96, 97, 531 P.2d 852, 852 (1975). At a minimum, observance of this right requires that before a parent loses custody of a child, the elements that serve as a precondition to a change of custody award must be supported by factual evidence. Furthermore, the party threatened with the loss of parental rights must be given the opportunity to disprove the evidence presented.
Vacating the custody order and remanding this matter to the family court for a redetermination of custody is required.
ROSE, C.J., concurs.
NOTES
[1] The actions of the district court are sanctioned by NRS 125.490(3), which provides:
3. For assistance in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.
[2] The concurring opinion concluding that the district judge did not follow the law draws inferences unwarranted from the record. Although it is true that the procedures outlined in the trial held in August 1989 and in the August 1990 decree were not followed, it is clear that the deviation resulted from further discussions between the district court judge and counsel for both parties. Despite attorney Young's denial of the mention of Dr. McQueen in the June, 1991 in-chambers conference (after the dates for other procedural arrangements had passed) discussed by the parties in their respective briefs and during oral argument, it is clear that Young never contacted Judge Whitehead to object to Dr. McQueen's evaluation or to express surprise or disapproval of the procedure followed by the court. It is also clear that the attorneys for both parties filed requests with the court for submission of the motion without argument or a hearing.
Contrary to the concurring justice's opinion, the trial judge never once deprived the parties of the right to be heard. Attorney Young never asked for a copy of the McQueen report, never asked for a hearing and the opportunity to cross-examine Dr. McQueen, never asked the court to "reopen" the evaluation process so that Lawrence could be interviewed by Dr. McQueen, never complained to the district court judge that the custody order was issued contrary to the procedure he expected the court to follow, and not only failed to object to Dr. McQueen's participation, but to the contrary, expressed a very belated willingness on the part of his client to be interviewed by Dr. McQueen. Moreover, it is equally clear that both parties knew that the district court judge had sought the evaluations of Dr. McQueen in order to assist him in reaching a decision concerning the issue of permanent custody. The original custody order entered as part of the divorce decree on August 14, 1990, specified that the provision regarding custody was strictly temporary. Neither party has asserted the nonsensical proposition that they assumed that Dr. McQueen's evaluative report was without purpose or the product of the court having nothing better to do.
Finally, I recall no place in the record where appellant's counsel has contended that he did not ask Judge Whitehead for a hearing or for the reconsideration of his ruling because he felt such a request would have been futile.
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224 F.3d 302 (4th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.SPENCER BOWENS, a/k/a Scooter, a/k/a Clyde, a/k/a Melvin McCurdy, a/k/a Doc Johnson, Defendant-Appellant.
No. 99-4060 (CR-98-110)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: February 29, 2000Decided: August 18, 2000
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge.[Copyrighted Material Omitted]
COUNSEL ARGUED: Craig Stover Cooley, Richmond, Virginia, for Appellant. David John Novak, Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Richmond, Virginia, for Appellee.
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part and vacated in part by published opinion. Judge Michael wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.
OPINION
MICHAEL, Circuit Judge:
1
A federal jury in the Eastern District of Virginia convicted Spencer Bowens of conspiracy to possess and distribute crack cocaine, powder cocaine, and heroin, in violation of 18 U.S.C. § 846; two counts of harboring a fugitive from arrest, in violation of 18 U.S.C. § 1071; and obstruction of justice, in violation of 18 U.S.C.§ 1503. Bowens appeals his conviction and sentence for conspiracy and his convictions for harboring a fugitive. He argues (1) that his conspiracy conviction must be reversed because the district court refused to instruct the jury on multiple conspiracies, (2) that his two convictions for harboring must be reversed because of improper venue, and (3) that his life sentence for conspiracy to distribute crack cocaine must be set aside because it is impossible to tell from the jury's verdict whether he was convicted for conspiracy to distribute crack or heroin. We conclude that the evidence did not support the existence of multiple conspiracies, so we affirm the conspiracy conviction. Because Bowens' acts of harboring, the sole essential conduct element of the charged offense, occurred outside the Eastern District of Virginia, venue in that district was improper. We therefore vacate the harboring convictions. Finally, we hold that the district court committed plain error by sentencing Bowens for conspiracy to distribute crack cocaine in the absence of a special verdict. However, we decline to notice that plain error in light of the overwhelming, un-controverted evidence that Bowens did in fact conspire to distribute crack cocaine. We therefore affirm Bowens' sentence on the conspiracy count.
I.
2
The drug conspiracy charged in this case concerned a large crack distribution network known as the "Poison Clan." The Poison Clan started out in Brooklyn, New York, in the mid-to-late 1980s. Later, it extended north to Albany and the outskirts of Boston and south to Baltimore, Washington, Richmond, Raleigh, Charlotte, and Columbia, among other cities. Couriers used cars outfitted with secret compartments to transport crack from New York to points north and south. (They made some deliveries of powder cocaine to the Carolinas, where it then was cooked into crack.) The couriers returned to New York with the proceeds, which were substantial. For example, by the end of 1993 the organization's Richmond operations, where shifts of dealers sold crack 24 hours a day, generated as much as $80,000 per week. At the same time, the organization was making weekly deliveries of crack to Albany and Baltimore while it looked for still other opportunities to expand.
3
A man named Dean Beckford was the head of the Poison Clan. Bowens was Beckford's confederate, eventually overseeing the organization's crack dealing operations in North and South Carolina. Bowens' responsibilities included procuring drugs for couriers to deliver to co-conspirators in the Carolinas, arranging meetings between couriers and local dealers, and (on at least one occasion) cooking powder cocaine into crack. In March 1994 Bowens traveled from New York to Columbia, South Carolina, where he remained long enough to set up a crack distribution operation on behalf of the Poison Clan. Beckford sent couriers to Columbia with cocaine; Bowens sent them back to Beckford with cash. Beckford and Bowens referred to one another as "partners" and split the proceeds from the organization's Carolina drug operations equally between themselves. Other members of the organization testified that receiving a command from Bowens was tantamount to receiving a command from Beckford and that Bowens was Beckford's "surrogate."
4
In May 1995 members of the Poison Clan's Richmond contingent began to suspect that they were under government surveillance. Wary of the increased attention, Beckford and the man who oversaw the Richmond operations, Ricardo Laidlaw, closed up shop in Richmond. Laidlaw relocated to Brockton, Massachusetts, where he continued to distribute crack for the Poison Clan. In Brockton the organization once again attracted the attention of the police, forcing Laidlaw to abandon that location and return to New York. The move provided little cover, however, for in New York the members of the Poison Clan found that "federal agents [were] everywhere." Throughout the summer of 1996 Bowens and Laidlaw repeatedly warned Beckford that he was "hot," and the three men began to discuss plans for going into hiding. Bowens had family in South Carolina, and he suggested that Beckford and Laidlaw could hide there without attracting the attention of the police. When Bowens' aunt died in late August 1996, he drove Beckford's Cadillac to St. Stephens, South Carolina, to attend the funeral. While there, he registered the car in the name of his cousin, Harold Bowens, and obtained South Carolina plates.
5
Bowens and Laidlaw's fears that the police were closing in were well founded. On June 7, 1996, a federal grand jury in the Eastern District of Virginia had returned a sealed indictment charging twenty-three members of the Poison Clan, including Beckford and Laidlaw, with conspiracy to distribute crack and powder cocaine. Additional charges against Beckford included two counts of murder. That same day, arrest warrants had also been issued (under seal) for all twenty-three defendants. Bowens was not indicted in this first round.
6
Over the course of the summer of 1996 the FBI and the New York City Police Department located most of the indicted members of the Poison Clan. The FBI carried out a coordinated arrest plan in New Haven, New York, Richmond, and Fort Lauderdale on August 26, 1996. Although Beckford and Laidlaw were in New York on that day, they and a third member of the Poison Clan, Mark Phillips, successfully evaded arrest. The three decided that it was time to flee New York. Beckford called Bowens in South Carolina, informed him of the FBI's push to make arrests, and told him that they were heading south to meet him. Before leaving, however, Beckford obtained four kilograms of cocaine powder to supply the organization's North Carolina market.
7
Garth Sambrano drove Beckford, Laidlaw, and Phillips to Wilmington, North Carolina, where they met up with Bowens and yet another member of the ring, David Armstrong. In Wilmington, Beckford, Laidlaw, and Bowens discussed the fact that Beckford and Laidlaw were wanted by the authorities. Armstrong and Sambrano were excluded from these conversations, however, since they were not "in the inner circle." After a few days in Wilmington, Beckford, Bowens, Laidlaw, Phillips, and Armstrong drove to St. Stephens. They stayed there for the next few weeks at the home of Armstrong's parents, who were also cousins of Bowens.
8
From St. Stephens, Beckford arranged for a courier to deliver powder cocaine to Sambrano in Raleigh. When the drugs arrived, Beckford, Bowens, Laidlaw, Phillips, and Armstrong drove to Raleigh, where Armstrong had an apartment. Beckford, Bowens, and Laidlaw cooked the cocaine powder into crack and then turned it over to Sambrano for distribution. Bowens directed Laidlaw to"tip" Armstrong $200 for the use of his apartment, and Laidlaw did so.
9
In early October 1996 Beckford and Bowens decided to return to New York, where Beckford's fiancee still lived and where Beckford planned to get a phony New Jersey driver's license with Bowens' help. While in New York, Beckford continued to send cocaine to Laidlaw in Raleigh. After about a month Beckford returned to Raleigh, while Bowens, who had been shot and wounded in the meantime, stayed behind in New York. Beckford was not gone for long, however; in late November he drove back to New York to buy an engagement ring for his fiancee. A few days later, on November 26, 1996, Beckford was arrested in Oceanside, New York.
10
Upon learning of Beckford's arrest, Bowens telephoned Laidlaw. Bowens urged Laidlaw to work with him to "keep the operation going." Laidlaw and the other North Carolina members of the group continued selling the crack that they had on hand, periodically sending cash to Bowens in New York. In January 1997 Bowens persuaded Laidlaw, Phillips, and Sambrano to send him $55,000 in cash for more crack that Bowens promised to ship. The money was sent, but Bowens never delivered the drugs. In August 1997 Laidlaw and Phillips were arrested in North Carolina. They cooperated with the authorities and provided information that led to Bowens' indictment and arrest in the spring of 1998. The indictment charged Bowens with one count of conspiracy to distribute crack cocaine, powder cocaine, and heroin; two counts of concealing a person from arrest; one count of money laundering; and one count of obstruction of justice, for instructing a grand jury witness to lie.1
11
At trial Bowens requested a multiple conspiracy instruction, which the district court denied. Bowens also requested a jury instruction that would have required the government to prove venue on the harboring charges, that is, that the acts of harboring occurred in the Eastern District of Virginia. Bowens argued that the government's evidence showed acts of harboring only in South Carolina. The district court denied the request for a venue instruction, reasoning that since the arrest warrants for Beckford and Laidlaw were issued in the Eastern District of Virginia, venue was established there as a matter of law. The jury convicted Bowens on the conspiracy count, both counts of concealing a person from arrest, and the one count of obstruction of justice. The district court sentenced Bowens to life in prison for the conspiracy conviction. Bowens also received concurrent sentences of 60 months for each of his two convictions for harboring and 120 months for obstruction of justice. He appeals his conviction and sentence for conspiracy and his convictions for harboring.2
II.
12
We first address Bowens' argument that the district court committed reversible error when it denied his request to instruct the jury on multiple conspiracies. The gist of Bowens' argument is that the government's own evidence demonstrated that the various groups in the (alleged) single conspiracy lacked any mutual interest in sustaining an overall enterprise. Consequently, Bowens contends, the evidence supported a conclusion that there were multiple, competing conspiracies rather than a single, overarching one. We disagree.
13
"A court need only instruct on multiple conspiracies if such an instruction is supported by the facts." United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993). Bowens argues that the facts show that the distributor groups in the various cities each had their own interests that placed them at odds with one another, thereby precluding a single conspiracy. For example, Bowens relies on evidence that deliveries of crack to Richmond were sometimes delayed because the couriers went to the Carolinas first, that Richmond distributors for the Poison Clan did not share in the proceeds from drug sales in the Carolinas, and that Bowens ripped off his North Carolina accomplices by stealing $55,000 from them. None of this evidence suggests multiple conspiracies. Occasionally favoring the Carolina distributors as drugs were re-supplied was a business decision that did not undermine the existence of the single conspiracy. Nor does the fact that members were only compensated for their own transactions disprove their participation in a single, broad conspiracy. Finally, the fact that Bowens stole from his confederates does not mean they were not in business together.
14
A single conspiracy exists when there is an agreement to engage in one overall venture to deal in drugs. See United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Bowens suggests that because he had nothing to do with the Poison Clan's Richmond contingent, he was not part of some big conspiracy that included Richmond. The government, however, proved that the Poison Clan was a large crack distribution ring, led by Beckford, that operated up and down the East coast, including in Richmond. And Bowens had a hand in most of what Beckford did. Bowens was intimately involved in the leadership of the Poison Clan. He and Beckford referred to each other as "partners," and Bowens was described as Beckford's surrogate and as a member of "the inner circle." At one point, Bowens was dispatched to set up a crack distribution operation in South Carolina. Bowens was also Beckford's counselor and confidant, advising him to flee New York when Beckford became "hot." He arranged a hiding place for Beckford so that when Beckford evaded capture the first time, their drug partnership was able to continue. Bowens provided Beckford with a falsified South Carolina vehicle registration and a phony New Jersey driver's license. While Beckford hid out in the Carolinas he and Bowens continued to run the drug ring together, arranging the delivery of powder cocaine, cooking the powder into crack, distributing the crack to dealers, and sharing equally in the proceeds. When Beckford finally was arrested, Bowens said he wanted to "keep the operation going." Other factors also linked the Poison Clan's various distribution units, including those in the Carolinas where Bowens devoted much of his efforts. The several contingents of the Clan used common methods of operation (the same drug couriers using the same means of transporting and concealing the drugs). They also had common participants (Beckford and Laidlaw, among others) and common leadership and direction (Beckford). Rather than showing multiple conspiracies, the evidence showed that the members of the Poison Clan, including Bowens, were linked by a "mutual interest in sustaining [one] overall enterprise," an enterprise based on a single conspiracy. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). Because the evidence did not support the existence of multiple conspiracies, the district court did not err in refusing to instruct the jury on this subject.
III.
15
Bowens also appeals his two convictions for harboring or concealing a fugitive from arrest, arguing that venue for those offenses was not proper in the Eastern District of Virginia. There was no evidence that Bowens engaged in any act in the Eastern District of Virginia to harbor or conceal Beckford or Laidlaw. Nonetheless, the government makes two alternative arguments to support its venue selection: first, that venue was proper in the Eastern District of Virginia because an element of the offense (issuance of the warrant) occurred there; second, that venue was proper because Bowens' offense interfered with the administration of justice in the Eastern District of Virginia. Because both of these arguments fail, we vacate Bowens' harboring convictions.
A.
16
Proper venue in a criminal prosecution is a constitutional right: "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." Art. III,§ 2, cl. 3. Article III's command is reinforced by the Sixth Amendment, which provides a criminal defendant with the right to a trial "by an impartial jury of the State and district wherein the crime shall have been committed." See also Fed. R. Crim. P. 18 ("Except as otherwise permitted by statute or these rules, the prosecution shall be had in a district in which the offense was committed."). The government bears the burden of proving venue (by a preponderance of the evidence). See United States v. Barsanti, 943 F.2d 428, 434 (4th Cir. 1991). When a defendant is charged with multiple counts, venue must be proper on each count. See United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999).
17
While the venue rule -trial in the district where the crime is committed -seems straightforward, the place of the crime can be difficult to determine. Of course, Congress can prevent some of that difficulty by including an express venue provision in a criminal statute. See, e.g., 18 U.S.C. § 228(e) (designating venue in prosecutions for failure to pay child support); 18 U.S.C. § 1073 (designating venue in prosecutions for flight to avoid prosecution or giving testimony); 18 U.S.C. § 1074(b) (same); 18 U.S.C. § 1512(h) (designating venue in prosecutions for obstruction of justice and witness or juror tampering). When Congress does not indicate just where it considers the place of the crime to be, the place "must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703 (1946). As the Supreme Court has recently instructed, "[i]n performing this inquiry, a court must identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999). The inquiry into the place of the crime may yield more than one appropriate venue, see 18 U.S.C. § 3237(a), or even a venue in which the defendant has never set foot, see Hyde v. United States, 225 U.S. 347 (1912). In any event, the district "where the criminal act is done . . . determines the jurisdiction" where the case must be tried. Anderson, 328 U.S. at 705.
18
Here, the relevant statute, 18 U.S.C. § 1071, contains no venue provision.3 Thus, as the Supreme Court has instructed, we must determine (1) the "nature of the crime" of concealing a person from arrest (the conduct constituting the offense) and (2) the location of that criminal conduct. See Rodriguez-Moreno, 526 U.S. at 279. Section 1071 prohibits "harbor[ing] or conceal[ing] any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person." Thus, there are four essential elements of a harboring offense: (1) that a federal warrant had been issued for a fugitive's arrest, (2) that the defendant knew that the warrant had been issued, (3) that the defendant harbored or concealed the fugitive, and (4) that the defendant intended to prevent the fugitive's discovery or arrest. See United States v. Silva , 745 F.2d 840, 848 (4th Cir. 1984).
19
In order to prove that a defendant has illegally harbored a fugitive from arrest, the government must prove that somebody (other than the defendant) was a fugitive. Accordingly, the issuance of a federal arrest warrant is an essential element of the government's case. Venue does not necessarily lie, however, in every district where an essential element of the offense has transpired. Rather, venue is limited to the place "where the criminal act is done." Anderson, 328 U.S. at 705. See also United States v. Cabrales, 524 U.S. 1, 7-8 (1998). We understand this requirement to limit venue in a criminal trial to the place of the essential conduct elements of the offense. The only conduct proscribed by § 1071 is the act of harboring or concealing the fugitive. Consequently, venue will lie only where acts of harboring or concealing take place.
20
Our conclusion that venue is limited to the place where the essential conduct elements occur, without regard to the place where other essential elements of the crime occur, is compelled by the Supreme Court's two recent decisions dealing with venue in criminal prosecutions, United States v. Cabrales, 524 U.S. 1 (1998), and United States v. Rodriguez-Moreno, 526 U.S. 275 (1999). In the first case, Cabrales was indicted in Missouri for laundering money generated by Missouri drug sales. Although she also was indicted as a co-conspirator in the Missouri drug activity, see United States v. Cabrales, 109 F.3d 471, 472 (8th Cir. 1997), Cabrales had laundered the money exclusively in Florida. The Missouri district court dismissed the money laundering charges for lack of proper venue, the government appealed, and the Eighth Circuit affirmed. At the Supreme Court the government pointed out that an essential element of a money laundering charge under 18 U.S.C. §§ 1956(a)(1)(B)(ii), 1957(a) is proof that the funds in question were the product of criminal activity. In Cabrales' case that criminal activity occurred in Missouri, so venue was proper there, the government argued. See Cabrales, 524 U.S. at 7-8. The Supreme Court disagreed unanimously:
21
Whenever a defendant acts "after the fact" to conceal a crime, it might be said, as the Government urges in this case, that the first crime is an essential element of the second, and that the second facilitated the first or made it profitable by impeding its detection. But the question here is the place appropriate to try the "after the fact" actor. As the Government recognizes, it is immaterial whether that actor knew where the first crime was committed. The money launderer must know she is dealing with funds derived from "specified unlawful activity," here, drug trafficking, but the Missouri venue of that activity is, as the Eighth Circuit said, "of no moment."
22
Id. (internal citations omitted). Since Cabrales' money laundering conduct occurred entirely in Florida, venue was not proper in Missouri. See id. at 10.
23
The very next term the Supreme Court decided Rodriguez-Moreno. In that case the defendant (Rodriguez-Moreno) was charged with a violation of 18 U.S.C. § 924(c)(1), which makes it a crime to "use[ ] or carr[y] a firearm" "during and in relation to a crime of violence." On the way to being charged with a gun crime, Rodriguez-Moreno had kidnaped a drug dealer, held him for a few days in New Jersey, and then moved him to another location in Maryland. While in Maryland Rodriguez-Moreno obtained a gun and used it to threaten the victim. Rodriguez-Moreno was later tried and convicted in the District of New Jersey on the § 924(c)(1) (gun) charge. The Third Circuit reversed the gun conviction for improper venue, reasoning that Rodriguez-Moreno had neither "used" nor "carried" the gun in New Jersey. See United States v. Rodriguez-Moreno , 121 F.3d 841, 850 (3d Cir. 1997). The Supreme Court reinstated the conviction. The court of appeals had erred, the Supreme Court held, because it "overlooked an essential conduct element of the § 924(c)(1) offense," specifically, the requirement that the defendant commit a crime of violence. See Rodriguez-Moreno, 526 U.S. at 280.
24
Significantly, the Rodriguez-Moreno Court distinguished Cabrales by observing that the "existence of criminally generated proceeds" was only a "circumstance element" of money laundering. See Rodriguez-Moreno, 526 U.S. at 280 n.4. The "circumstance element" was supplied by proof of a prior crime, one committed before the money laundering conduct began. See Cabrales, 524 U.S. at 7-8. The "`anterior criminal conduct that yielded the funds allegedly laundered'" therefore did not provide a basis for venue. See RodriguezMoreno, 526 U.S. at 280 n.4 (quoting Cabrales, 524 U.S. at 7); see also Cabrales, 524 U.S. at 8 n.2 (citing United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (stating that for crime of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), venue lies only where the firearm is actually possessed)). In contrast, the underlying crime of violence required by § 924(c)(1) was an "essential conduct element" of that offense. See Rodriguez-Moreno, 526 U.S. at 280 & n.4. In other words, committing a crime of violence is conduct the defendant himself engages in as part of the gun offense under § 924(c)(1). Thus, only the essential conduct elements of an offense, not the circumstance elements, provide a basis for venue. Applying that distinction to § 1071, it is clear that the issuance of a warrant for a person's arrest is merely a circumstance element (albeit an essential element) of the harboring offense. The place where that warrant is issued, like the place of the drug trafficking in Cabrales, is "of no moment."4
25
We therefore hold that the place where a criminal offense is committed is determined solely by the essential conduct elements of that offense. We further hold that the only essential conduct element of harboring or concealing a fugitive from arrest under 18 U.S.C. § 1071 is the act of harboring or concealing. It thus follows that venue in the Eastern District of Virginia cannot be predicated on the fact that the arrest warrants for Beckford and Laidlaw were issued there.
B.
26
We turn now to the government's alternative argument that venue was proper in the Eastern District of Virginia because the act of harboring or concealing a fugitive from arrest interferes with the due administration of justice in the district where the warrant was issued. As the government points out, we previously have held that in determining the proper venue for criminal prosecutions, the inquiry into the "nature of the crime" permits, indeed requires, an inquiry into Congress's purposes in enacting a particular criminal statute. See United States v. Murphy, 117 F.3d 137, 139 (4th Cir. 1997); United States v. Cofield, 11 F.3d 413, 416-17 (4th Cir. 1993). Using that approach, we have looked to the effect that Congress sought to prevent by criminalizing specific conduct and have held that venue is proper wherever that effect is felt. See Murphy , 117 F.3d at 140; Cofield, 11 F.3d at 419. The government specifically relies on a line of cases in which we have held that in prosecutions for crimes in the nature of obstruction of justice, venue is proper in the district where the obstruction would take effect. See Cofield , 11 F.3d at 419; United States v. Kibler, 667 F.2d 452, 454-55 (4th Cir. 1982). According to the government, harboring a fugitive is similar in nature to obstruction of justice in that it impedes the due administration of justice in the court that issued the arrest warrant. As a result, the government argues, venue for a § 1071 prosecution should lie in the district where the effects of the criminal conduct are felt, that is, where the arrest warrant was issued.
27
We do not reach the question whether harboring a fugitive is in some sense an obstruction of justice crime. Instead, we conclude that the Supreme Court's recent decisions in Cabrales and RodriguezMoreno require us to determine venue solely by reference to the essential conduct elements of the crime, without regard to Congress's purpose in forbidding the conduct. Venue may nevertheless be proper where the effects of criminal conduct are felt, but only when an essential conduct element is itself defined in terms of its effects. We elaborate further below.
28
As we have already discussed, in Anderson the Supreme Court laid out the two-part inquiry that guides venue analysis in the absence of explicit direction from Congress: the place of committing the crime "must be determined from the nature of the crime alleged and the location of the act or acts constituting it." Anderson, 328 U.S. at 705. Our own venue decisions have construed the command to determine "the nature of the crime" as requiring an examination of the legislative purpose of the criminal statute at issue. See Murphy, 117 F.3d at 139; Cofield, 11 F.3d at 416-17. For example, in Cofield the defendant had assaulted a witness in retaliation for her testimony in a criminal trial, in violation of 18 U.S.C. § 1513(a) (now § 1513(b)). Although the assault took place in the District of Columbia, Cofield was tried and convicted in the Eastern District of Virginia, the place of the trial. We acknowledged that the conduct proscribed by § 1513(a) -"caus[ing] bodily injury to another person" with intent to retaliate for that person's testimony in an official proceeding -had taken place exclusively in the District of Columbia. Nonetheless, we consulted the legislative history of § 1513 and determined that "the congressional purpose in enacting the statute was to protect the integrity of the judicial system," Cofield, 11 F.3d at 417, making § 1513 something of an obstruction of justice statute. We then relied on other cases and statutes involving obstruction of justice ("crimes of the same genre," id. at 419) to hold that venue for prosecution of a crime that threatens the integrity of the judicial process lies wherever the judicial process is affected. Venue for Cofield's prosecution therefore was proper in the Eastern District of Virginia. See id. at 418-419.
29
Our reasoning in Cofield, however, cannot be reconciled with the Supreme Court's later decisions in Cabrales and Rodriguez-Moreno. Rather, the Supreme Court's recent venue decisions instruct that "the nature of the crime" refers only to the conduct constituting the offense, see Rodriguez-Moreno, 526 U.S. at 279, and that the conduct constituting the offense is limited to essential conduct elements, see id. at 279 n.2; Cabrales, 524 U.S. at 7-9. Accord Cofield, 11 F.3d at 421-24 (Luttig, J., dissenting); United States v. Murphy, 117 F.3d 137, 142 (4th Cir. 1997) (Williams, J., concurring). Our conclusion that venue must be determined solely by reference to the proscribed conduct is compelled by the Supreme Court's unanimous opinion in Cabrales. Emphasizing that the Florida money laundering at issue in that case facilitated drug activity in Missouri and impeded its detection, the government urged the Court to consider"the interests of the community victimized by drug dealers." Cabrales, 524 U.S. at 8, 9. In making this argument, the government explicitly and extensively relied on the legislative history of the money laundering statute. See Brief for the United States, Cabrales, No. 97-643, 1998 WL 90828, at *14 ("Congress has criminalized money laundering precisely because it facilitates the profitable commission of the underlying offenses."); id. at 1998 WL 90828, *17 ("Congress viewed money laundering as a logical and prevalent outgrowth of the specified unlawful activities." (citing S. Rep. No. 433, 99th Cong., 2d Sess. 2, 4 (1986); H.R. Rep. No. 855, 99th Cong., 2d Sess. Pt. 1, at 8, 13 (1986)); id. at 1998 WL 90828, *18-19 ("[T]he determination that particular funds were illegally derived is central to the purpose and proper application of the federal money laundering provisions."). The Court refused to adopt the government's reasoning or to consider the effects of money laundering on the Missouri community at all. See Cabrales, 524 U.S. at 9. The unmistakable import of that refusal is that proper venue is limited to the place where the defendant's criminal acts are committed, without respect to Congress's underlying purposes in criminalizing those acts.
30
At the same time, we do not understand the Supreme Court's recent decisions to have altered the well-established rule that Congress may, consistent with the venue clauses of Article III and the Sixth Amendment, define the essential conduct elements of a criminal offense in terms of their effects, thus providing venue where those effects are felt. See United States v. Johnson, 323 U.S. 273, 275 (1944) (observing that the Constitution permits Congress to "provide that the locality of a crime shall extend over the whole area through which the force propelled by an offender operates"); see also Rodriguez-Moreno, 526 U.S. at 279 n.2 (declining to reach government's argument that "venue may be based upon the effects of a defendant's conduct other than the one in which he performs the acts constituting the offense"). Thus, in a prosecution under the Hobbs Act, venue is proper in any district where commerce is affected because the terms of the statute itself forbid affecting commerce in particular ways. See 18 U.S.C. § 1951 (anyone who "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce" by robbery, extortion, or threat of violence to person or property is subject to criminal penalties); United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990); United States v. Lewis, 797 F.2d 358, 367 (7th Cir. 1986). Similarly, a former version of 18 U.S.C. § 1503 prohibited influencing, intimidating, or impeding a witness or influencing, obstructing, or impeding the administration of justice. Because the essential conduct elements were defined not just in terms of the forbidden act, i.e., "assault" or "retaliate," but rather in terms of their effects (intimidation of a witness or obstruction of the administration of justice), venue was proper in the district where those proscribed effects would be felt. See Kibler, 667 F.2d at 454-55 (4th Cir. 1982) (construing 18 U.S.C. § 1503 (1981)); see also United States v. Bradley, 540 F. Supp. 690, 694-95 (D. Md. 1982) (in prosecution for "causing" a destructive device or substance to be placed on an aircraft, in violation of 18 U.S.C. § 32(a)(2), venue lay in the district where an innocent third party placed the defendant's bomb on a plane). Those decisions are consistent with the requirement that venue be predicated solely on essential conduct elements. This is because the criminal statutes involved in those cases did not merely proscribe particular acts, but actually defined the essential conduct elements in terms of their particular effects, e.g., "affecting" interstate commerce and "obstructing" or "impeding" the administration of justice.
31
When Congress defines the essential conduct elements of a crime in terms of their particular effects, venue will be proper where those proscribed effects are felt. The essential conduct element of § 1071, "harboring or concealing a person," is not defined in terms of its particular effects. The statute does, however, contain the words "so as to prevent [the fugitive's] discovery and arrest." In some circumstances, "prevent" might be an essential conduct element that is described in terms of its effects. See, e.g., 18 U.S.C. § 593 (officer or member of the armed forces who "prevents or attempts to prevent . . . any qualified voter of any State from fully exercising the right of suffrage at any general or special election" commits a crime); 18 U.S.C. § 1169(b) (any person who "inhibits or prevents" certain individuals from making reports of child abuse in Indian country commits a crime); 18 U.S.C. § 1509 ("Whoever, by threats or force, willfully prevents . . . or willfully attempts to prevent . . . the due exercise of rights or the performance of duties under any order, judgment, or decree of a court of the United States" commits a crime). Here, however, the language "so as to prevent [the fugitive's] discovery and arrest" defines the requisite intent for the offense of harboring, not an essential conduct element. See Silva, 745 F.2d at 848. Because § 1071 contains no other language that might be construed as an essential conduct element, venue for a prosecution under that section is proper only where defendant actually harbors or conceals a fugitive. Thus, the possible disruption of the administration of justice in the district issuing the arrest warrant is of no consequence in determining venue for a prosecution under § 1071. We therefore hold that the district court erred in considering the effect of Bowens' harboring offense in determining venue.
C.
32
In summary, we hold that venue for a criminal prosecution must be determined solely in reference to the essential conduct elements of the charged offense. Venue will lie wherever those essential conduct elements have occurred. Venue will also lie where the effects of the defendant's conduct are felt, but only when Congress has defined the essential conduct elements in terms of those effects. The sole essential conduct element of 18 U.S.C. § 1071 is the act of concealing a fugitive, and that conduct is defined in the statute without reference to its effects. Bowens' acts of harboring occurred outside the Eastern District of Virginia. We therefore hold that venue in that district was improper, and we vacate Bowens' two convictions for violation of 18 U.S.C. § 1071.5
IV.
33
Last, Bowens challenges his life sentence on the drug conspiracy conviction. The indictment charged Bowens with conspiracy to distribute crack cocaine, powder cocaine, and heroin. The district court instructed the jury that it should convict on the conspiracy charge if it found beyond a reasonable doubt that Bowens had entered an agreement to distribute any of those three substances. Neither Bowens nor the government requested a special verdict, and the jury returned a general verdict of guilty. At sentencing, without objection from Bowens, the district court calculated his sentence on the assumption that the object of the conspiracy had been distribution of crack cocaine. On that basis, Bowens received a life sentence. Bowens now argues that it is impossible to determine which of the charged objects of the conspiracy (distribution of crack cocaine, cocaine powder, or heroin) the jury convicted him on. Consequently, Bowens contends, the district court committed plain error by imposing the sentence based on the most heavily punishable object of the conspiracy. We agree that the district court committed plain error at sentencing. However, we may excuse Bowens' failure to raise the issue in the district court, and notice the error ourselves, only if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings. We conclude that the evidence of a crack conspiracy was so overwhelming that there is no question that the jury must have found Bowens guilty of conspiracy to distribute crack cocaine. Accordingly, we decline to notice the error and we affirm the sentence.
34
When a jury returns an ambiguous guilty verdict in a multiple-drug conspiracy, the defendant "may be sentenced only up to the maximum for the least-punished drug offense on which that conspiracy is based." United States v. Rhynes, 196 F.3d 207, 238 (4th Cir. 1999), rev'd in part on rehearing in banc, No. 97-4466, 218 F.3d 310 (4th Cir. July 10, 2000). See also Edwards v. United States, 523 U.S. 511, 515 (1998); United States v. Quicksey, 525 F.2d 337, 340-41 (4th Cir. 1975). The statutory maximum sentence for conspiracy to distribute the quantity of heroin proved at trial (27.56 grams) is twenty years. See 21 U.S.C. § 841(b)(1)(C). As a result, Bowens argues, he must be retried on the conspiracy count or resentenced consistent with conviction for a heroin conspiracy. See Rhynes , 196 F.3d at 239-40; Quicksey, 525 F.2d at 341.
35
Since Bowens did not object to the general verdict, request a special verdict, or object to being sentenced based on conspiracy to distribute crack cocaine, we review his claim for plain error. See Rhynes, 196 F.3d at 237; Fed. R. Crim. P. 52(b). "Rule 52(b) contains three elements that must be established before we possess the authority to notice an error not preserved by a timely objection: The asserted defect in the trial proceedings must, in fact, be error; the error must be plain; and, it must affect the substantial rights of the defendant." United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)). Even when all three of these elements are present, we should decline to notice an error unless it "`seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
36
The first three requirements easily are satisfied here, since we found the identical error to be plain and to affect substantial rights in Rhynes. See Rhynes, 196 F.3d at 237-40. Nonetheless, we are convinced that the fourth factor is not present: the error works no injustice and does not "seriously affect[ ] the fairness, integrity, or public reputation of the judicial proceedings." Olano, 507 U.S. at 736. In contrast to Rhynes, in this case it is not"impossible to determine on which statutory object or objects . . . the conspiracy conviction was based." Rhynes, 196 F.3d at 238. Rather, the overwhelming and essentially uncontroverted evidence shows that Bowens was a major participant in a large crack distribution conspiracy. Therefore, we decline to notice the error.
37
This was not a trial about a heroin conspiracy. Every government witness who testified about the conspiracy testified to crack dealings, preparation of crack, and delivery of either crack cocaine itself or powder cocaine to be cooked into crack. Laidlaw testified that in June 1992 the Poison Clan was delivering three to four kilograms of crack cocaine to Richmond every month. By the end of 1993 a courier named Wayne Douglas Smith was making weekly deliveries of crack to Richmond (and returning with $70,000 to $80,000 in proceeds), even as he made other crack deliveries to representatives of the Poison Clan in Albany and Baltimore. In May of 1996 yet another courier was delivering between two and two-and-a-half kilograms of crack cocaine to Richmond two or three times a month. Once Bowens was in the Carolinas, a courier named Alfred Cockfield made at least two deliveries to Raleigh, each time consisting of four kilograms of cocaine powder. Three different witnesses testified about Bowens helping to cook one of those four-kilogram deliveries into crack for North Carolina distribution. The substance of this testimony was essentially un-controverted, as the defense was almost exclusively directed at attempting to impeach the government's witnesses. See United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998) (declining to notice plainly erroneous instruction on "use or carry" element of 18 U.S.C. § 924(c) in light of "overwhelming" and "essentially un-controverted" evidence that defendant carried a firearm during and in relation to a drug trafficking crime).
38
In contrast to this overwhelming evidence of a large, complex network dedicated to buying powder cocaine, cooking it into crack, distributing it to cities along the east coast, and delivering the cash proceeds back to the organization's leaders in New York, no witness testified to buying, manufacturing, or selling heroin. The only testimony pertaining to heroin at all was that of Sharon Gelzer, a courier who was arrested while making a delivery for Bowens, and that of the police officer who arrested her. Gelzer was arrested with two kilograms of cocaine powder and 27.56 grams of heroin in a piece of luggage that Bowens had given her to carry. On a previous occasion, Gelzer testified, she had successfully delivered two kilograms of (presumably powder) cocaine from Bowens to another member of the organization, Willie Richardson, in South Carolina. Thus, assuming that the jury believed Gelzer's testimony that she was involved in one delivery of heroin for Bowens, it likewise would have believed her testimony that she was involved in the delivery of at least two, if not four, kilograms of powder cocaine from Bowens to the organization's South Carolina dealers. And we know that Bowens' confederates would have cooked that powder cocaine into crack because the only evidence concerning the organization's South Carolina activity was that it sold crack there. Consequently, even the isolated reference in the record to heroin is inseparable from the overwhelming evidence of a conspiracy to distribute crack cocaine. Under these circumstances, we are confident that no miscarriage of justice will result, nor will the fairness or integrity of the proceedings be affected, from our declining to notice the error in sentencing. Bowens' sentence is therefore affirmed.
V.
39
For the reasons stated, we affirm Bowens' drug conspiracy conviction and his life sentence for conspiracy to distribute crack cocaine. We vacate Bowens' two convictions for harboring a fugitive.
AFFIRMED IN PART AND VACATED IN PART
Notes:
1
The money laundering charge was eventually dismissed by the government.
2
Bowens initially challenged all of his convictions on the ground that the government had violated 18 U.S.C. § 201(c)(2) by offering his coconspirators lenity in exchange for their testimony. Bowens has withdrawn that challenge in light of our recent decision in United States v. Richardson, 195 F.3d 192, 194-97 (4th Cir. 1999).
3
Section 1071 is part of Title 18, ch. 49, which contains four sections dealing with fugitives from justice. The proper venue for a § 1071 prosecution appears to be a question of first impression. Likewise, we do not know of any case discussing the proper venue for a prosecution under § 1072, which prohibits harboring or concealing an escaped prisoner. The remaining two sections of Title 18, ch. 49 contain explicit venue provisions. See 18 U.S.C. §§ 1073, 1074.
4
At first blush, it might seem that this rule imposes a significant limitation on permissible venues. It does not. In determining venue for a particular offense, not only is the conduct of the defendant himself considered, but the conduct of anyone with whom he shares liability as a principal is as well. Thus, in a conspiracy charge, venue is proper for all defendants wherever the agreement was made or wherever any overt act in furtherance of the conspiracy transpires. See Hyde , 225 U.S. at 356-67. Likewise, a defendant who is charged as an aider or abettor is subject to venue in any place where the principal could be tried. See id. at 362-67; United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999). Finally, as we explain in greater detail below, see part III. B., venue is proper where the effects of criminal conduct are felt when Congress defines the essential conduct elements of the offense in terms of those effects.
5
Because we vacate Bowens' § 1071 convictions for lack of venue, we need not reach his argument that the evidence of harboring or concealing was insufficient to sustain the verdict.
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262 F.2d 710
John T. DELBRIDGE, Appellant,v.UNITED STATES of America, Appellee.
No. 14622.
United States Court of Appeals District of Columbia Circuit.
Argued November 4, 1958.
Decided December 11, 1958.
Mr. John A. Rafter, Washington, D. C., with whom Mr. Thomas H. Wall, Washington, D. C., (both appointed by this court) was on the brief, for appellant.
Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.
Before PRETTYMAN, Chief Judge, and EDGERTON and DANAHER, Circuit Judges.
PRETTYMAN, Chief Judge.
1
Appellant Delbridge was indicted, tried and convicted for entering a store belonging to a partnership of two named persons and stealing $1,125.66. He had been employed at the store, and after the night of the crime he disappeared from the Washington area. Some three years later he told a sheriff in California that he believed he was wanted in the District of Columbia for the theft of $1,175 from the named store.1 The difference between the actual amount of the theft ($1,125.66) and the amount Delbridge mentioned to the sheriff ($1,175) is critical.
2
Upon his trial Delbridge testified that on the night of the crime he passed the store, saw the door open and lights on, went in to investigate, saw the disarray, was frightened because he had a record and was on parole, and so left town that night — "I mean, I didn't fool around." He testified: "* * * and the next day I bought a paper in Raleigh, North Carolina, and it had a short piece in there about the door being open, and that is how come I know it stated that somebody had entered the store that night with a key, apparently with a key, and that the total sum of $1,175 was missing. And that is all it said."
3
The prosecutor ridiculed the story. Delbridge knew the amount of the theft, he argued, for one reason and one reason only — he (Delbridge) was the thief. As to the alleged newspaper article, the prosecutor told the jury:
4
"In any event, Mr. Delbridge tells you he read some account of this alleged theft in the newspaper. I put it to you, members of the jury, would the newspapers have reported $1,175 if the actual theft was $1,125.66? I submit to you, members of the jury, there was no such account in the paper. It would be of no import whatsoever for the newspapers in Roanoke, Virginia, or some town in Virginia that this defendant to report some small theft from some poultry company in the District of Columbia. [Sic.] You know when that is done just as well as I do. It is reported in some local newspaper when whatever the event may be concerns some local personage: then it becomes news. Barring that, of what possible interest could the people in some town in Virginia have of the fact that there was a theft committed from the College Hill Poultry Company here in the District of Columbia? I submit to you, none, and there never was such an account in any Virginia newspaper."
5
The trial was on May 3, 1955. On May 9th, six days later, counsel for Delbridge was back in court with a motion for a new trial, upon the ground that he had ascertained at the Library of Congress that there actually had been an article in the Washington Post on April 13, 1952, stating that $1,175 had been stolen from the named store. The supplemental record now before us shows that the article in the Post did name the store, gave the amount as $1,175, and did say the entrance was apparently effected by use of a key. A somewhat similar article appeared in the Star.
6
So the record presently before us poses two questions: (1) Why should Delbridge have told the California sheriff the amount of the theft was $1,175? The newspaper article said $1,175, but the thief would probably have known it was $1,125.66. (2) How did Delbridge know on May 3rd, before his counsel had located the item at the Library of Congress, that the newspaper article said entrance was apparently effected with a key? It did say that, and, as Delbridge put it on the witness stand, "that is all it said."
7
It seems to us that Delbridge is entitled to have a jury evaluate his credibility in light of the fact that there was a newspaper article which said just what he said it said. We can take judicial notice of the fact that the Sunday editions of Washington newspapers are sold as far away as Raleigh, North Carolina.
8
In argument here, something is made of the fact that Delbridge testified he bought the newspaper "the next day". The theft was discovered about 6:30 on the morning of April 12th, which was a Saturday. Delbridge testified he saw the door open, etc., at about 10:30 or 11 o'clock the night before, which would have been Friday, April 11th. He left Washington that night between 11:30 and midnight. He could not have been in Raleigh earlier than some time Saturday, the 12th. The articles in the Post and Star were in the Sunday editions, April 13th. It is argued to us that, when Delbridge testified he bought the newspaper "the next day", he lied, because the next day after the offense was Saturday, the 12th, and there was no article in the Saturday papers. But we think that is too fine a line upon which to rest a conviction. By "the next day" Delbridge may well have meant the day after he reached Raleigh, and the article was in the papers on that day.
9
We think the motion for a new trial should have been granted. Purely circumstantial evidence played a major part in this conviction. The judge knew the fulcrum role played by the story of the newspaper article, and he knew there was such a story and that it conformed to Delbridge's account of it. Justice requires a trial in the light of those facts. It is urged that counsel for Delbridge should have known of the newspaper article at the time of trial and that therefore the article is not "newly discovered" within the rule as to new trials on that ground. Strictly speaking, that is true, but we think it is too much to require that under the circumstances counsel should have anticipated the key part to be played by the newspaper incident in the prosecutor's attack on Delbridge and thus should have searched the files of the Library of Congress upon such anticipation. The publication of the article was not an obvious or readily available fact, a technicality, or a point of law. We are impressed by the combination of circumstances: (1) This case was built largely upon circumstantial evidence; (2) Delbridge said there was a newspaper article naming $1,175 as the amount stolen and a key as the apparent mode of entrance; (3) the prosecutor relied heavily upon the improbability of the story; and (4) there was in fact such a newspaper article. Delbridge should have a new trial.
10
Reversed.
Notes:
1
The sheriff also testified that Delbridge said he stole the $1,175
11
DANAHER, Circuit Judge (dissenting).
12
Delbridge told the California sheriff, according to the latter's testimony, he was tired of running from the charges. His "friends had informed him that there was a fugitive warrant for his arrest by the FBI." "He stated to me that he stole $1175 from the College Hill Poultry firm."
13
Delbridge testified he had been convicted of petty larceny under the name of Robert Jordan, of grand theft in California under the name of Thomas Delbridge, of violating the National Motor Vehicle Theft Act in Petersburg, Virginia, under the name of Tom Delbridge, and of auto stealing in Columbus, Ohio, under the name of John Delbridge. He checked in Hood River, Oregon, to see if there was a "flyer" outstanding against him.
14
Having been arrested at Bakersfield, California, on another charge, the marshal told him when his term was up, "We haven't got a thing in the world on you." Then he became "eager to go back and face the charges and clear it up." "If I wasn't wanted, I wanted it so I could go home to my people, and there was only one way I could find out * * *."
15
Delbridge had a key to the store, but he testified that on the night of Friday, April 11, 1952, he found the door open, somewhere around 10:30 p. m. The front part of the store was closed and the night light was on. "So I went there and opened the door. I thought Joe [the manager] might possibly be down there working or something and I would go down and chat with him and see if I had anything to tell him, because I opened up every morning before Mr. Arthur came to work."
16
He went down into the basement and saw that the cubicle was wide open. As he looked about he noticed that the money box was open. All the lights were on. He then "got out of there as quick as I could," and left town within an hour, without his pay, and was a fugitive for three years.
17
Earlier that evening the manager had placed silver, some one dollar bills and a few fives in the cash box, available to make change the following day. He had concealed the rest of the fives, tens and twenties among some stacks of linen. He locked the door of the cubicle with a padlock and locked the store before leaving, he testified.
18
At 6:30 Saturday morning the manager again entered the store and went downstairs to get the money to be used in Saturday's business. The basement room door was closed. The lock had been broken and had been replaced over the hasp. Only when the manager reached to unlock the door did he discover that the place had been entered. Not only had the change box been emptied, but the linen had been pulled onto the floor, and large denomination bills which he had there concealed were missing.
19
So the sequence establishes the manager concealing the money and locking the store. If Delbridge were not the next person to enter the basement locker, it was the thief. Then followed Delbridge who discovered the breaking, as he says. But "I left that door open," he testified. "I didn't touch anything down there, and I left the street door standing about half open." If those statements are true, someone else entered the same area after Delbridge left, placed the broken lock over the hasp and closed the store. This remarkable series of visits to the scene of the theft somehow strains credulity. The jury had to decide that either the manager lied or Delbridge did.
20
Then, when Delbridge said "I left town immediately that night, and the next day I bought a paper in Raleigh, North Carolina," he did not specify a paper published in Washington. The Washington Post, a morning paper, certainly "next day" could not have reported a burglary which was not discovered until 6:30 a. m. the "next day." Delbridge's attorney argued, contrary to the testimony, that "the defendant stated he read this in a Washington paper in Virginia."
21
The jury could have believed that the same "friends" who told Delbridge "that there was a fugitive warrant for his arrest by the FBI," as he stated to the California sheriff, also told him there had been a piece in the papers about the College Hill burglary where $1,175 had been stolen. The "friends" might have thought it more than coincidence that Delbridge disappeared when the money did. Advising him that a warrant was outstanding was barely short of clairvoyance, for he had not even been indicted until after his confession in Bakersfield. Moreover the news stories made no mention of Delbridge. Only when he thought, three years later, that the whole business had blown over and no charges were pending against him, do we find Delbridge "eager" to get back. The newspaper episode which the majority say is "too fine a line upon which to rest a conviction" is a mere incident in the sum total of events. Delbridge simply presented "too fine a line" for the jury to accept. The District Judge who saw the witnesses and had an opportunity to appraise their worth was of similar mind. I would affirm.
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09-3519-cv
Noble v. Career Educ. Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of April, two thousand ten.
PRESENT: REENA RAGGI,
PETER W. HALL,
Circuit Judges.*
------------------------------------------------------------------------------------
EMILIO NOBLE,
Plaintiff-Appellant,
v. No. 09-3519-cv
CAREER EDUCATION CORPORATION,
Defendant-Appellee.
------------------------------------------------------------------------------------
APPEARING FOR APPELLANT: STEPHEN BERGSTEIN, Bergstein & Ullrich,
LLP, Chester, New York.
APPEARING FOR APPELLEE: AMBER L. KAGAN, Morgan, Lewis & Bockius
LLP, New York, New York (Kirsten A. Milton,
*
Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the
consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter in accordance with Second Circuit Internal Operating
Procedure E(b).
Morgan, Lewis & Bockius LLP, Chicago, Illinois,
on the brief).
Appeal from the United States District Court for the Southern District of New York
(Kenneth M. Karas, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the district court’s order entered on December 3, 2007, is AFFIRMED.
Plaintiff Emilio Noble, whose complaint for wrongful termination under federal and
state law was dismissed, argues on appeal that the district court erred in ruling that he failed
to state a claim under article 23-A of the New York Correction Law, §§ 750-755 (McKinney
2003).1 See Fed. R. Civ. P. 12(b)(6). We review the dismissal of a complaint de novo,
accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor. See Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.
2009). When, as here, an appeal turns on a construction of state law, we must determine how
the New York Court of Appeals has interpreted, or would interpret, the relevant language,
giving the “fullest weight” to pronouncements of the state’s highest court and, where they
are not dispositive, giving “proper regard” to relevant rulings of the state’s lower courts.
International Bus. Machs. Corp. v. Liberty Mut. Fire Ins. Co., 303 F.3d 419, 423 (2d Cir.
2002). Further, we “carefully review . . . the statutory language, pertinent legislative history,
[and] the statutory scheme,” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d
1
Plaintiff does not appeal from the district court’s award of summary judgment for
defendant on his claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq.; and New York Executive Law § 290 et seq.
2
Cir. 1994) (internal quotation marks omitted). In doing so here, we assume the parties’
familiarity with the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision to affirm.
1. The Statutory Text
In determining the reach of a particular statute, we begin, as we must, with the text.
See United States v. Williams, 558 F.3d 166, 170 (2d Cir. 2009); Zaldin v. Concord Hotel,
48 N.Y.2d 107, 113, 421 N.Y.S.2d 858, 862 (1979). In 2004, when plaintiff’s employment
was terminated, New York Correction Law § 752 stated, in relevant part:
No application for any license or employment, to which the provisions of this
article are applicable, shall be denied by reason of the applicant’s having been
previously convicted of one or more criminal offenses, or by reason of a
finding of lack of “good moral character” when such finding is based upon the
fact that the applicant has previously been convicted of one or more criminal
offenses . . . .
N.Y. Correct. Law § 752 (McKinney 2003) (emphasis added). Plaintiff, who was employed
by defendant for approximately one year before being terminated upon discovery that he had
been convicted of grand larceny in connection with a prior employment, does not dispute that
the quoted text of § 752 plainly refers only to applications for, not terminations of,
employment. Nevertheless, he insists that the district court erred in failing to construe § 752
to prohibit his termination.
To be sure, a 2007 amendment to § 752, see infra, extends the statute’s reach to
terminations. But plaintiff fails to point us to any authority indicating that the Legislature
3
intended the original statute to be so construed. See Riley v. County of Broome, 95 N.Y.2d
455, 463, 719 N.Y.S.2d 623, 627 (2000) (“The primary consideration of courts in interpreting
a statute is to ascertain and give effect to the intention of the Legislature.” (internal quotation
marks omitted)). As the New York Court of Appeals has observed, “Article 23-A of the
Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against
ex-offenders which prevented them from obtaining employment.” Bonacorsa v. Van Lindt,
71 N.Y.2d 605, 611, 528 N.Y.S.2d 519, 521 (1988) (emphasis added). Plaintiff’s speculative
assertions as to such intent are not persuasive in light of plain language indicating that § 752
pertains only to job applications.1 See N.Y. Stat. § 76 (“Where words of a statute are free
from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may
not be had to other means of interpretation.”); People v. Phyfe, 136 N.Y. 554, 559 (1893)
(“We are not permitted to speculate as to the motive or design of the lawmakers, or to search
for a hidden meaning or an unexpressed purpose in the enactment.”).
2. The Case Law
Consistent with that construction, New York courts addressing the issue have
concluded that, before its 2007 amendment, Correction Law § 752 barred the denial of
applications for, not the termination of, employment. See D’Amore v. Vill. of Kenmore, 12
1
Plaintiff submits that the district court’s reading of the statute is absurd because it
would permit an employer to hire an ex-convict on Monday and then fire him on Tuesday
because of his criminal record. That is not this case. Here, plaintiff was convicted of grand
larceny in May 2004, after he was already employed by defendant.
4
A.D.3d 1129, 1129-30, 785 N.Y.S.2d 242, 243 (4th Dep’t 2004) (alternative holding)
(holding that challenge to termination under § 752 “is lacking in merit”); Pietranico v.
Ambach, 82 A.D.2d 625, 626, 442 N.Y.S.2d 827, 828 (3d Dep’t 1981) (“Article 23-A by its
terms applies only to the ‘application’ for a license by a person previously convicted of a
crime; it has no bearing on disciplinary proceedings against persons already licensed.” (citing
N.Y. Correct. Law § 751 2 )); Durante v. Bd. of Regents, 70 A.D.2d 692, 693, 416 N.Y.S.2d
401, 403 (3d Dep’t 1979) (same); Mosner v. Ambach, 66 A.D.2d 912, 912, 410 N.Y.S.2d
937, 938 (3d Dep’t 1978) (same); Pisano v. McKenna, 120 Misc. 2d 536, 538, 466 N.Y.S.2d
231, 233 (Sup. Ct. 1983) (same). To the extent these cases involve licenses not employment,
we agree with the district court that the statute draws no relevant distinction between the two.
Notwithstanding this authority, plaintiff urges us to rely on broad public policy
statements in related Appellate Division decisions to conclude that he stated a claim under
§ 752. See, e.g., Givens v. N.Y. City Hous. Auth., 249 A.D.2d 133, 133, 671 N.Y.S.2d 479,
479-80 (1st Dep’t 1998) (observing that “[t]he same public policy that prohibits
discrimination in hiring on the basis of a criminal record prohibits discrimination in
terminating employment on the basis of a criminal record” in setting aside jury verdict
against state agency for negligently hiring employee (citations omitted)). We are not
2
At the time of plaintiff’s termination, § 751 clarified that “[t]he provisions of [article
23-A] shall apply to any application by any person who has previously been convicted of one
or more criminal offenses . . . .” N.Y. Correct. Law § 751 (McKinney 2003) (emphasis
added).
5
convinced. For the most part, these cases are distinguishable or inapposite.3 Plaintiff cites
no case either permitting a plaintiff to sue his employer for wrongful termination under § 752
or explaining how the statute’s clear language regarding applicants and applications might
be read to prohibit his termination.4
3. The 2007 Amendment
In 2007, the New York Legislature amended § 752 to provide that “no employment
or license held by an individual . . . shall be denied or acted upon adversely by reason of the
individual’s having been previously convicted of one or more criminal offenses.” N.Y.
Correct. Law § 752 (McKinney Supp. 2010). Plaintiff submits that this amendment
3
See, e.g., Smith v. Kingsboro Psychiatric Ctr., 35 A.D.3d 751, 752, 828 N.Y.S.2d
419, 421 (2d Dep’t 2006) (concluding that “the termination of [petitioner’s] employment
based upon his failure to disclose his criminal record completely and truthfully does not
implicate” Correction Law § 752); Rodgers v. N.Y. City Human Res. Admin., 154 A.D.2d
233, 235, 546 N.Y.S.2d 581, 582 (1st Dep’t 1989) (noting that “[t]he very purpose of
[certificates of relief under N.Y. Correction Law § 701] is to permit an individual who has
made mistakes but has been rehabilitated to begin anew and become a productive member
of society”); State Div. of Human Rights v. Sorrento Cheese Co., 115 A.D.2d 323, 324, 495
N.Y.S.2d 865, 866 (4th Dep’t 1985) (“It is as much a violation of the Human Rights Law to
discriminate against a person because of an arrest or a conviction for a criminal offense as
it is to discriminate against that person because of an erroneously perceived conviction for
a crime” (citing N.Y. Exec. Law § 296(15)-(16))). But cf. Pioneer Group v. State Div. of
Human Rights, 174 A.D.2d 1041, 1041-42, 572 N.Y.S.2d 207, 207-08 (4th Dep’t 1991)
(holding that substantial evidence supported unlawful discrimination determination and
referencing complainant’s “unlawful termination”).
4
Even if a minority of state appellate courts have applied § 752 to terminations of
employment, we would not be compelled to apply such a rule absent authority from the New
York Court of Appeals when, as in this case, the statute’s text is clear and most appellate
courts have concluded otherwise. See Commissioner of Internal Revenue v. Estate of Bosch,
387 U.S. 456, 465 (1967); King v. Order of United Commercial Travelers of Am., 333 U.S.
153, 161 (1948).
6
effectively ratified state court decisions already extending § 752 to terminations. To the
contrary, the plain language of the amendment and its legislative history confirm the
Legislature’s intent to provide new protections against termination lacking from the original
version of § 752. See N.Y. State Senate Introducer’s Mem. in Support, N.Y. Bill Jacket,
2006 S.B. 7730 (“The anti-discrimination protections in Section 752 of the Correction Law
currently apply only to applicants for employment or occupational licenses who have
criminal convictions. The law provides no protection to current employees or license holders
who face unfair discrimination based on criminal records that predate their employment or
licensure. This bill extends the anti-discrimination protections to current employees . . . .”).
We, therefore, conclude that the district court correctly dismissed plaintiff’s
Correction Law claim because, in 2004, the relevant statute did not prohibit termination of
employment.5
We have considered plaintiff’s other arguments on appeal and conclude that they are
5
Neither party has requested certification of this question to the New York Court of
Appeals. See Second Circuit Local Rule 27.2. “Certification . . . should be done ‘sparingly,
mindful that it is our job to predict how the New York Court of Appeals would decide the
issues before us.’” City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115,
126 (2d Cir. 2010) (quoting Highland Capital Mgmt. LP v. Schneider, 460 F.3d 308, 316 (2d
Cir. 2006)). We need not resort to certification here because “existing authority enables us
to predict on a reasonable basis how the New York Court of Appeals would rule if squarely
confronted with the issue.” Schipani v. McLeod, 541 F.3d 158, 162 n.6 (2d Cir. 2008)
(internal quotation marks and alteration omitted).
7
without merit. Accordingly, we AFFIRM the December 3, 2007 order of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
8
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IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 02-1176
════════════
Hallco Texas, Inc.,
Petitioner,
v.
McMullen County, respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of
Texas
════════════════════════════════════════════════════
Argued January 4,
2005
Justice Hecht, joined by Justice Medina and Justice Willett, dissenting.
A
regulatory-takings claim may challenge a land-use restriction on its face or as
applied to particular property.[1] A facial challenge is ripe when the
restriction is imposed,[2] but an as-applied claim is not ripe
until the regulatory authority has made a final decision regarding the
application of the regulation to the property.[3] “A ‘final decision’ usually requires
. . . the denial of a variance from the controlling regulations”
unless a request for variance would be futile.[4]
This case
illustrates how the government can use this ripeness requirement to whipsaw a
landowner. The government can argue either that there was no request for a
variance when there should have been, or that the request was not specific
enough, or that it was not reasonable enough, or that there was insufficient
time to consider it — and therefore the landowner’s regulatory-takings claim is
premature, unripe, and should be dismissed. Or else it can argue that a request
for a variance would be a waste of time, or that none was authorized, or that
the landowner should have known his ridiculous proposal would never be seriously
considered — and therefore his claim is late, barred, and should be dismissed.
One way or the other, the result is the same. Ripening a regulatory-takings
claim thus becomes a costly game of “Mother, May I”, in which the landowner is
allowed to take only small steps forwards and backwards until exhausted.
When Hallco
Texas, Inc. first sued McMullen County, alleging that an ordinance aimed at
stopping Hallco from using its property as a nonhazardous industrial waste
landfill effected a compensable taking, the County argued that it “ha[d] the
authority to grant a variance, or even to rescind the ordinance, if Hallco
present[ed] sufficient justification”, and therefore, Hallco’s action was not
ripe because it “ha[d] not obtained a final decision from the County”. This
embarrassing fact is buried in a footnote to the Court’s opinion[5] and never discussed. After Hallco
lost, it submitted a lengthy and detailed request for a variance, which the
County summarily denied. Now in this, Hallco’s second state-court suit against
the County on its regulatory-takings claim (it has also sued three times in
federal court), the County argues that the prior action was ripe after all and
bars this one because requesting a variance was futile. The Court agrees and
holds that Hallco should not have “another bite at the apple”,[6] as if being forced to bob for apples
is the same as ever getting a bite.
The Court
wants Hallco to know that “[w]e are sympathetic”.[7] But it adds: “McMullen County
unquestionably had the power to regulate land use, especially around a water
supply like Choke Canyon Reservoir, and in the abstract, its doing so would
hardly ever give rise to takings liability.”[8] Poor Hallco. It should have known
better than to take the County at its word because it could “hardly ever” win
anyway, even if it was successful in obtaining a permit to operate a landfill,
even if the County deprived Hallco of the lawful use and economic benefit of its
property. After spending millions of dollars over twelve years, Hallco, I rather
imagine, would prefer justice to sympathy.
I would take
the County at its word and remand the case for proceedings on the merits, if
Hallco can endure yet another round of litigation. Accordingly, I respectfully
dissent.
I
In January
1991, Hallco bought 128 acres of raw land in rural McMullen County (1,142 sq.
mi., 1990 pop. 817), a little under two miles from Choke Canyon Reservoir, a
26,000-acre lake on the Frio River halfway between San Antonio and Corpus
Christi. The lake supplies water to Corpus Christi and others and provides a
setting for recreational activities. The only community in the vicinity of
Hallco’s property is Calliham, some two-and-one-half miles away, which had about
50 residents. Otherwise, the area is mostly pasture.
Hallco bought
the property for use as a Class I nonhazardous industrial waste landfill.[9] No local land-use regulations
restricted solid waste disposal on the property Hallco acquired. Since 1971,
Texas counties have been authorized to prohibit by ordinance the disposal of
solid waste in specific areas where it is a threat to public health, safety, and
welfare,[10] but McMullen County had never had
such an ordinance. All Hallco needed to operate a landfill was a state permit
from what was then the Texas Water Commission (later the Texas Natural Resource
Conservation Commission, and now the Texas Commission on Environmental Quality,
all referred to simply as “the Commission”).[11] Hallco applied for the permit in July
1992.
The County
opposed Hallco’s plans from the start. Eleven days after Hallco acquired the
property, the commissioners court adopted a resolution opposing the proposed
landfill, expressing concern that it might contaminate the reservoir, the Frio
River, the nearby Nueces River, and groundwater, jeopardize residents,
livestock, vegetation, and soil, and stink.[12] The County also intervened in the
Commission proceeding along with Corpus Christi and others to oppose Hallco’s
permit application. But not until June 1993, after the application had been
pending nearly a year and Hallco had spent some $800,000 on the proposed
landfill and permit process, did the commissioners court adopt an ordinance[13] prohibiting solid waste disposal
within three miles of the reservoir.[14] Although the County had no technical
or scientific studies to support the restriction, the ordinance recited that
the soil in the area of the lake is porous and subsurface
materials tend to be unstable and volatile; . . . the disposal of
solid waste within three (3) miles of Choke Canyon Lake would constitute a
threat to the public health, safety and welfare; and . . . the present
technology available with regard to the installation, operation and maintenance
of solid waste disposal sites is insufficient to prevent contamination of
adjacent areas . . . .[15]
Despite this
ordinance and opposition by the County and others, the Commission did not
determine that Hallco’s operation of a landfill would be harmful to the public
and instead issued a 78-page revised final draft permit in February 1995,
detailing the specifications for a landfill operation as recommended by the
Commission staff.
Two weeks
later, Hallco sued the County in the United States District Court for the
Southern District of Texas,[16] alleging in part that the County’s
ordinance was a regulatory-taking requiring compensation under the Fifth
Amendment to the United States Constitution.[17] Around the same time, Hallco also
filed its regulatory-taking claim in state court, asserting violations of both
the Fifth Amendment and article I, section 17 of the Texas Constitution.[18] The County immediately moved to
dismiss the federal-court action, asserting that it was not ripe for two
reasons: Hallco had not obtained a final decision from the county regarding the
application of the ordinance — in effect, a variance — and Hallco had not fully
pursued relief in state court. Both were prerequisites to suit in federal court
under the United States Supreme Court’s decision in Williamson County
Regional Planning Commission v. Hamilton Bank.[19] Hallco responded that it should be
excused from requesting a variance since the ordinance did not provide for one
and any request would be futile. In reply, the County insisted that a variance
was possible and that, in any event, state proceedings had to be exhausted:
[T]he Supreme Court [in Williamson] has held that
regulatory takings claims, such as the one presented in this case, are not ripe
for federal adjudication unless the Plaintiff: 1) obtains a final decision from
the regulatory entity (here, the County) regarding the application of the
ordinance or regulation . . . to his property; and 2) seeks just
compensation through available state procedures.
. . . Hallco does not dispute that it has satisfied
neither prong of Williamson: it has not obtained a final decision from
the County and it has not sought redress through available state procedures.
Instead, Plaintiff argues only that it would be futile to approach the county
for a final decision on the application of the ordinance to its
property.
[Hallco] offers absolutely no authority for the proposition
that futility is an excuse to the requirement of finality. Even if there were a
futility exception, at least one application for variance would be required to
establish futility. Contrary to [Hallco’s] assertion, the fact that the
ordinance does not contain a provision for reviewing how the ordinance will be
applied to particular property does not establish that it is futile; the
Commissioners Court has the authority to grant a variance, or even to rescind
the ordinance, if Hallco presents sufficient justification. Therefore,
[Hallco’s] argument has no merit.
Moreover, [Hallco] wholly fails to address the consequences of
its failure to seek redress through available state court procedures. The
Williamson case itself makes it abundantly clear that state remedies must
be sought in state court prior to bringing a federal takings claim.
Without
deciding whether Hallco had satisfied Williamson County’s first
requirement, the district court dismissed the case in August 1995 for failure to
satisfy the second:
It is arguable whether Hallco meets the first condition.
Apparently, it has neither submitted a plan to the County nor sought a variance
or waiver from the Commissioners Court. Hallco argues that the ordinance
constitutes a final decision because, unlike the regulation in Williamson
County, this ordinance does not expressly provide any means for obtaining
variances from its provisions. . . . The Court will not dwell on this
argument since Hallco has not met the second ripeness condition.
“[B]efore a takings claim is ripe, the claimant must
unsuccessfully seek compensation. Short of that, it must be certain that the
state would deny that claimant compensation were he to undertake the
obviously futile act of seeking it.” Samaad v. City of Dallas, 940 F.2d
[925, 934 (5th Cir. 1991)] (emphasis in
original). Under Article I, § 17 of the Texas Constitution, property owners
claiming an uncompensated taking may seek compensation through an inverse
condemnation suit. See Westgate Ltd. v. State, 843 S.W.2d 448, 452
(Tex. 1992). Hallco makes no claim to have sought just compensation; therefore,
its takings claim is premature.[20]
The parties
then turned to the state-court action, referred to as Hallco I.
Though Hallco still had not requested a variance from the County, the state
court, like the federal court, did not determine whether such a request was a
prerequisite to Hallco’s action. Instead, the trial court in May 1996 granted
summary judgment for the County in part on the ground that prohibiting Hallco’s
proposed landfill operation did not constitute a taking of its property
requiring compensation under the state and federal constitutions. In April 1997,
the court of appeals affirmed, reasoning as follows:
We find that Hallco’s takings claim must fail because he did
not have a cognizable property interest of which the government action could
deprive him.
Hallco’s takings claim is grounded in the idea that it has a
constitutionally protected property interest or entitlement to use its property
for waste disposal, and that the McMullen County ordinance deprived him of that
right or entitlement. However, Hallco has never had the right to dispose of
industrial waste on its property, and does not now have a right to dispose of
such waste. . . .
In Texas, the Legislature has defined when property owners may
dispose of solid waste on their property via
the permitting process; Tex. Health
& Safety Code Ann. § 361.061‑.345 (Vernon 1992 & Supp. 1997).
Even if Hallco already had a permit, by definition it would not have a property
interest in disposal of solid waste. TNRCC regulations define permits as not
being a property interest or a vested right in the permittee. See 30
Tex. Admin. Code
§ 305.122(b) (West 1996).
The only way the McMullen County regulation affected Hallco
was in denying it the right to operate a solid waste facility on the proposed
site. A mere expectancy of future services which would render the land more
valuable, in the absence of a contract, is not a vested property right for
purposes of determining whether a taking has occurred. Estate of Scott v.
Victoria County, 778 S.W.2d 585, 592 (Tex. App.—Corpus Christi 1989, no
writ). The McMullen County ordinance does not otherwise impact on use of the
property. Because Hallco did not have a property interest in disposal of solid
waste on its property, we hold that the ordinance in question did not constitute
a taking as a matter of law.[21]
The court of
appeals did not discuss whether the case was ripe given that Hallco had not
requested a variance. Hallco did not appeal further.
The
Commission never approved Hallco’s permit, but its application remained
pending.[22] In August 1999, about two years after
the judgment in Hallco I was final on appeal, Hallco requested a
variance from the ordinance. The lengthy request included the revised final
draft permit issued by the Commission and a valuation of the property, both of
which were obtained after the County enacted its ordinance. The valuation showed
that the property was worth $5.2 million if operated as a landfill but only
$58,300 otherwise, and that a landfill business operated on the property would
be worth $15,870,000. The County heard Hallco’s presentation of its request but
took no further action.
In December
1999, Hallco filed this action, referred to as Hallco II, against the
County, again asserting a regulatory taking of its property. Besides its
constitutional claims, Hallco also sued under the Texas Private Real Property
Rights Preservation Act.[23] Concerned that the state action might
not prevent the running of limitations on a federal action, Hallco also filed
the same action in federal court.[24] The federal court rejected Hallco’s
concerns and dismissed the action.[25] The County moved for summary judgment
in the state proceeding, arguing that Hallco had not suffered a compensable
taking of its property. The County did not argue that it lacked authority to
grant a variance or reconsider Hallco’s proposal; the County argued only that
Hallco had not made a case for a variance or reconsideration. The County also
argued that this action is barred by Hallco I and by limitations and
laches. The trial court granted summary judgment for the County without
specifying the grounds.
The court of
appeals “reaffirm[ed]” its holding in Hallco I that “because Hallco did
not have a property interest in the disposal of solid waste on its property, the
ordinance did not constitute a taking as a matter of law.”[26] The court added that without a state
permit for a landfill, “Hallco did not have a distinct investment-backed
expectation that it could use the property for solid waste disposal, and use of
the property for solid waste disposal was neither an existing nor a permitted
use.”[27] The court did not mention Hallco’s
statutory claim.
II
The ripeness
requirement for regulatory-takings claims stems from the root of such claims,
first stated by Justice Holmes:
while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking. . . .
[T]his is a question of degree — and therefore cannot be disposed of by general
propositions. . . . [T]he question at bottom is upon whom the loss of
the changes desired should fall.[28]
“It follows
from the nature of a regulatory takings claim,” the United States Supreme Court
has since observed, “that an essential prerequisite to its assertion is a final
and authoritative determination of the type and intensity of development legally
permitted on the subject property. A court cannot determine whether a regulation
has gone ‘too far’ unless it knows how far the regulation goes.”[29]
Thus, as we
noted above, the Supreme Court held in Williamson County that “a claim
that the application of government regulations effects a taking of a property
interest [under the Fifth Amendment] is not ripe until the government entity
charged with implementing the regulations has reached a final decision regarding
the application of the regulations to the property at issue.”[30] More recently, the Supreme Court has
explained:
Williamson
County’s final decision requirement “responds
to the high degree of discretion characteristically possessed by land-use boards
in softening the strictures of the general regulations they administer.”
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738 [] (1997).
While a landowner must give a land-use authority an opportunity to exercise its
discretion, once it becomes clear that the agency lacks the discretion to permit
any development, or the permissible uses of the property are known to a
reasonable degree of certainty, a takings claim is likely to have
ripened.
* * * *
[A] landowner may not establish a taking before a land-use
authority has the opportunity, using its own reasonable procedures, to decide
and explain the reach of a challenged regulation. Under our ripeness rules a
takings claim based on a law or regulation which is alleged to go too far in
burdening property depends upon the landowner’s first having followed reasonable
and necessary steps to allow regulatory agencies to exercise their full
discretion in considering development plans for the property, including the
opportunity to grant any variances or waivers allowed by law. As a general rule,
until these ordinary processes have been followed the extent of the restriction
on property is not known and a regulatory taking has not yet been established.
See Suitum, supra, at 736, and n. 10 (noting difficulty of demonstrating
that “mere enactment” of regulations restricting land use effects a taking).
Government authorities, of course, may not burden property by imposition of
repetitive or unfair land-use procedures in order to avoid a final decision.
. . .[31]
This Court
has said that “[a] ‘final decision’ usually requires . . . the denial
of a variance from the controlling regulations” unless a request for variance
would be futile.[32] Futility was the reason Hallco gave
the federal court in its first action for not having requested a variance from
the ordinance. The ordinance was crystal clear, Hallco argued, and applied
specifically to its property, and there were no procedures for granting a
variance. The County responded:
Contrary to [Hallco’s] assertion, the fact that the ordinance
does not contain a provision for reviewing how the ordinance will be applied to
particular property does not establish that it is futile; the Commissioners
Court has the authority to grant a variance, or even to rescind the ordinance,
if Hallco presents sufficient justification. Therefore, [Hallco’s] argument has
no merit.
The County now
insists that Hallco’s request for a variance should not have the effect of
reviving its claim.
But ripening
is not reviving. In a regulatory-takings case, the dispute must be sufficiently
focused for the court to determine exactly how far a general land-use
restriction extends in specific circumstances. General restrictions almost
always have exceptions. The final-decision requirement allows regulators full
discretion in adjusting restrictions to particular property before a
constitutional obligation to compensate a landowner can be triggered. The County
enacted its ordinance out of a concern, expressly stated, that “present
technology available with regard to the installation, operation and maintenance
of solid waste disposal sites is insufficient to prevent contamination of
adjacent areas” (emphasis added). That was 20 months before the Commission
issued Hallco a 78-page revised final draft permit with detailed specifications
for the safe operation of the proposed landfill, and six years before Hallco
requested a variance. It was certainly not unreasonable to expect that the
County might be willing to reconsider the appropriateness of a three-mile zone
if a landfill were required to be operated as set out in Hallco’s revised final
draft permit, or as a result of changes in technology, or simply after taking
another look at the situation. At least the County has always professed in court
its willingness to do so, until now, and here we should take it at its word.
Hallco claims
in this case that the County’s ordinance effects a taking as applied, not
of any and all property proposed to be used as a landfill within three
miles of Choke Canyon Lake, but only of property on which the prohibited
operation is one that is subject to specifications like those in Hallco’s
revised final draft permit. Just as a zoning authority might adjust generally
applicable front- or side-yard requirements, or height or size restrictions, or
other regulations affecting construction on property, depending on particular
circumstances, a county’s determination of whether a landfill can be operated in
an area may depend on the details of the operation.
Despite the
County’s assurances in federal court that it could and would consider Hallco’s
request for a variance, or for that matter, to repeal the ordinance altogether,
it now protests that no procedure is prescribed for any such request to be made.
Perhaps the County did not previously consider the absence of such procedure an
inhibition to a request for a variance because it knew that general procedures
permitted the request. As we have said,
the term “variance” is “not definitive or talismanic;” it
encompasses “other types of permits or actions [that] are available and could
provide similar relief.” The variance requirement is therefore applied flexibly
in order to serve its purpose of giving the governmental unit an opportunity to
“grant different forms of relief or make policy decisions which might abate the
alleged taking.”[33]
In fact, the
County received the request and allowed Hallco to present it to the
commissioners court. In this way, the details of Hallco’s proposed operation as
specified in the revised final draft permit and an evaluation of the economic
impact of the ordinance on Hallco were presented to the commissioners court for
its consideration. The County cites nothing that affirmatively prohibited it
from amending its ordinance in response to the request. Instead, it insists that
Hallco provided no justification for reconsideration.
The County
suggests, apparently in the alternative, that Hallco should have requested a
variance sooner, but the County cites no deadline for such a request and no
authority for the argument that Hallco should have acted more diligently. A
landowner’s decision to request a variance may involve many considerations,
personal, economic, technical, and political. Timing may be critical. A
landowner who wishes to make a facial challenge to a regulation, as Hallco did,
should not be forced to request a variance before he believes he is in the best
position to do so, or risk losing the facial challenge to limitations or the
as-applied challenge to res judicata.
The County
argues that allowing a regulatory-takings claim after every denial of a variance
gives a landowner multiple bites at the apple, threatening repetitious and
harassing litigation. But a landowner who is denied a variance, sues, loses,
requests another variance, is denied again, and sues again, can expect the same
result if the facts have not changed. If the apple is wormy, it is not clear why
someone would take multiple bites. The expense of litigation and the possibility
of sanctions for groundless lawsuits are ample deterrents. And if the facts have
changed, so that the regulation as finally applied effects a taking, there is no
reason to deny the landowner the compensation promised by the constitution.
The County
adopted its ordinance without a scientific or technical basis for a zone of
three miles as opposed to a shorter distance, and without a specific proposal
for a landfill operation. In such circumstances it is especially important that
there be an ample opportunity to consider a proposed land-use in detail before
making a final decision that may result in a compensable taking. The Court says
that the facts regarding Hallco’s proposed landfill operation have not changed
since Hallco I. Perhaps not, but Hallco did not request the variance the
County said it would consider until after Hallco I was concluded.
“Res
judicata, or claims preclusion, prevents the relitigation of a claim or cause of
action that has been finally adjudicated, as well as related matters that, with
the use of diligence, should have been litigated in a prior suit.”[34] Because the as-applied claim Hallco
makes in the present case was not ripe while Hallco I was pending, it was
not, and could not have been, adjudicated in that case, and thus it is not
barred by res judicata.
The County
also argues that this action is barred by collateral estoppel. Collateral
estoppel bars a claim only if “(1) the facts sought to be litigated in the
second action were fully and fairly litigated in the first action; (2) those
facts were essential to the judgment in the first action; and (3) the parties
were cast as adversaries in the first action.”[35] The only fact specifically determined
in Hallco I was that Hallco had no inherent right to operate a landfill.
This fact is, of course, undisputed, and as I explain below, is not
determinative of whether a compensable taking occurred. None of the issues on
which Hallco’s claim depends — the economic impact of the ordinance on Hallco,
the reasonableness of Hallco’s investment-backed expectations, and whether the
ordinance singled Hallco out instead of promoting a public interest — was “fully
and fairly litigated” in Hallco I. Even if the parties raised these
issued in Hallco I, they were not “essential to the judgment”, which was
based solely on the only issue specifically determined — that Hallco had no
inherent right to operate a landfill. Moreover, the Court has held that courts
should not strictly apply the elements of collateral estoppel when the purposes
of the doctrine are disserved thereby.[36] Those purposes are disserved when the
doctrine is used by the County to escape its representations to a federal
judge.
The County
further argues that this action is barred by limitations and laches. But the
County does not argue that a regulatory-takings claim accrues for limitations
purposes before it is ripe, and there is authority that it does not.[37] It is not entirely clear what statute
of limitations applies to such claims,[38] but none is as short as three months,
the time Hallco waited to file suit after the County refused to grant a
variance. Thus, the claim is not barred by limitations. “Generally in the
absence of some element of estoppel or such extraordinary circumstances as would
render inequitable the enforcement of petitioners’ right after a delay, laches
will not bar a suit short of the period set forth in the limitation statute.”[39] No such circumstances are present in
this case.
III
The County
contends that it has established that its ordinance did not effect a compensable
taking of Hallco’s property. In Sheffield Development Co. v. City of Glenn
Heights, we explained how a land-use regulation should be analyzed to
determine whether it has effected a compensable taking:
[W]hether regulation has gone “too far” and become too much
like a physical taking for which the constitution requires compensation requires
a careful analysis of how the regulation affects the balance between the
public’s interest and that of private landowners. While each case must therefore
turn on its facts, guiding considerations can be identified, as the Supreme
Court first explained in Penn Central Transportation Co. v. City of New
York:
In engaging in these essentially ad hoc, factual inquiries,
the Court’s decisions have identified several factors that have particular
significance. The economic impact of the regulation on the claimant and,
particularly, the extent to which the regulation has interfered with distinct
investment‑backed expectations are, of course, relevant considerations. So, too,
is the character of the governmental action. A “taking” may more readily be
found when the interference with property can be characterized as a physical
invasion by government, than when interference arises from some public program
adjusting the benefits and burdens of economic life to promote the common
good.
The Supreme Court has restated these factors simply
as:
(1) “the economic impact of the regulation on the claimant”;
(2) “the extent to which the regulation has interfered with distinct
investment‑backed expectations”; and (3) “the character of the governmental
action.”
Nevertheless, the Supreme Court has cautioned that these
factors do not comprise a formulaic test. “Penn Central does not supply
mathematically precise variables, but instead provides important guideposts that
lead to the ultimate determination whether just compensation is required.” “The
temptation to adopt what amount to per se rules in either direction must
be resisted.”
Thus, for example, the economic impact of a regulation may
indicate a taking even if the landowner has not been deprived of all
economically beneficial use of his property. Nor are the three Penn
Central factors the only ones relevant in determining whether the burden of
regulation ought “in all fairness and justice” to be borne by the public.
Whether a regulatory taking has occurred, the Supreme Court has said, “depend[s]
on a complex of factors including” the three set out in Penn
Central. The analysis “necessarily requires a weighing of private and public
interests” and a “careful examination and weighing of all the relevant
circumstances in this context.” As we have ourselves said of regulatory-takings
issues, “we consider all of the surrounding circumstances” in applying “a
fact‑sensitive test of reasonableness”.
We have said that while
determining whether a property regulation is unconstitutional
requires the consideration of a number of factual issues, the ultimate question
of whether a zoning ordinance constitutes a compensable taking or violates due
process or equal protection is a question of law, not a question of fact. In
resolving this legal issue, we consider all of the surrounding circumstances.
While we depend on the district court to resolve disputed facts regarding the
extent of the governmental intrusion on the property, the ultimate determination
of whether the facts are sufficient to constitute a taking is a question of
law.[40]
The court of
appeals did not engage in this analysis. In Hallco I, it held simply that
the County’s ordinance did not effect a taking of Hallco’s property because no
landowner has “a property interest in disposal of solid waste on its
property”.[41] The court simply “reaffirm[ed]” this
holding in Hallco II. But no landowner has an unrestricted right to
any use of property. Businesses can be zoned out of residential
neighborhoods.[42] Home construction can be limited in
size, height, and placement on the property.[43] Nuisances can be prohibited.[44] Every landowner’s right to use his
property may be restricted by the government in the legitimate exercise of its
police power and by the common law. These restrictions do not mean that
landowners have no property interest in the use of their land, and stating that
a particular use is subject to permit requirements says nothing about whether an
ordinance prohibiting a use with the requisite permit constitutes a
compensable taking. A taking occurs when the government interferes too far in a
landowner’s use of property, regardless of the nature of the intended use.
Nor is it determinative that Hallco had not yet obtained a
permit for its proposed landfill. The government cannot deny a landowner all
reasonable use of his property and refuse to compensate him for the taking
simply because his proposed use of his property requires a permit he has not yet
obtained. If the government could avoid its constitutional obligation by denying
permits, there would be little left to the guarantee of compensation.
A requirement
that a permit be obtained before property can be used in a particular way does
not preclude a landowner from having a reasonable, investment-backed expectation
that he will succeed in obtaining the permit and pursue the intended use,
contrary to the court of appeals’ conclusion in Hallco II. To be sure,
the uses to which a piece of property has been put historically are important in
assessing the reasonableness of a purchaser’s expectations,[45] but an expectation of a particular
use of property is not unreasonable merely because it is new or subject to a
permit requirement. Hallco appears to have anticipated correctly that obtaining
a landfill permit was reasonably likely, since the Commission went so far as to
issue a revised final draft permit. But the final permit never issued, and the
reasons are not clear from the record before us. The record does not establish
that Hallco’s expectations of operating a landfill were reasonable, but neither
does it establish that they were unreasonable.
Even if the
record were clearer on this point, and the reasonableness of Hallco’s
investment-backed expectations could be better assessed, the issue of whether
the County’s ordinance constituted a compensable taking could not be determined
without an assessment of other relevant factors. Again, whether a land-use
regulation is an unreasonable restriction amounting to a compensable taking
requires a careful analysis of all relevant factors and circumstances. A
formulaic approach cannot be used.
One factor
that must be considered is the economic impact of the ordinance on the
landowner. Hallco offered evidence that its property was worth $5.2 million as a
landfill but only $58,300 with the ordinance in place, and that its proposed
landfill business would be worth nearly $16 million. However, Hallco never
obtained a final permit to operate a landfill, so it is unclear what the
ultimate economic impact of the ordinance actually was. Also, the price of
acquisition and the worth of the property put to other uses must be considered.
And whatever the economic impact of the ordinance on Hallco, taking into account
all pertinent information, economic impact is but one factor to be considered in
determining whether there was a compensable taking.
Another
factor, and one especially troubling in this case, is whether the County singled
out Hallco without substantially advancing legitimate public interests. Although
the United States Supreme Court has made clear that this not “a stand‑alone
regulatory takings test that is wholly independent of Penn Central or any
other test”,[46] this Court concluded in Sheffield
that it may be a consideration in an appropriate case.[47] The County insists that it adopted
the ordinance to protect the health and safety of its residents, but the record
contains little solid evidence to support that assertion. The County’s
resolution in January 1991 recited problems that could result from a
landfill operation, but the County does not claim to have had any evidence that
they actually would. Rather, the County simply opposed Hallco’s proposed
use of its property. The operation of a landfill undeniably poses risks to
surrounding areas, hence the requirement of a state permit. But the question is
whether the County’s ordinance was directed at the risks or at Hallco. The
Commission’s issuance of a revised final draft permit to Hallco over the
objection of the County and others after two-and-one-half years of proceedings
certainly suggests that the County’s professed concerns lacked firm footing. The
county judge conceded that when the ordinance was adopted in July 1993, the
County had no scientific or technical information to support the three-mile
restriction. The County has yet to point to evidence that a landfill three miles
from Choke Canyon Lake was safe when one two miles or one mile from the lake was
not. At this point, the conclusion is certainly reasonable that the County’s
decision was dictated, not by any evaluation of health or safety concerns, but
by the fortuity that Hallco acquired property where it did.
The timing of
the ordinance also suggests that it may have been directed at injuring Hallco
rather than protecting the County. The County argues with some force that it had
no reason to enact an ordinance prohibiting landfills near Choke Canyon Lake
before Hallco purchased property and made its proposal in January 1991. That was
the first time the issue had arisen. But the County offers no explanation for
delaying adoption of an ordinance until July 1993. By that time, according to
Hallco’s evidence, it had spent two years and over $800,000 on Commission
proceedings and the proposed landfill, and was on the verge of obtaining a final
draft permit. Had the County enacted an ordinance when it first learned of
Hallco’s plans, Hallco might have deferred its application until it had tested
the validity of the ordinance. Even if it had gone ahead, it would have done so
knowing the obstacles it faced. A reasonable inference from the record before us
is that the County delayed enactment of the ordinance merely to disadvantage
Hallco in its proceedings before the Commission.
In
Sheffield, the evidence was “quite strong” that the city had attempted to
take unfair advantage of a developer by imposing a moratorium on development in
specific response to the developer’s plans, extending the moratorium long after
any purpose had been served, and delaying action on the developer’s plans until
it could muster the votes for rezoning.[48] Although we found the city’s conduct
“troubling”, we concluded that the delay may only have been lethargic, and that
in the end the city had completed a comprehensive rezoning that arguably
benefitted the entire community.[49] In the present case, by contrast, the
evidence is stronger that the County’s delay was ill-motivated, and there is
almost no evidence whether the ordinance benefitted the County’s residents or
not.
Again,
however, the character of the ordinance and the manner in which it was adopted
are but factors to be considered in determining whether there was a compensable
taking of Hallco’s property. Whether a regulatory taking has occurred is, as we
have said, a question of law, but it must be answered after the relevant facts
have been determined. Considering the evidence of the reasonableness of Hallco’s
investment-backed expectations, the economic impact of the ordinance, and the
singling out of Hallco without a legitimate public purpose, I would hold that
the County failed to establish its entitlement to judgment as a matter of law.
Because Hallco’s claim under the Texas Private Real Property Rights Preservation
Act is based on its constitutional claims, the County was not entitled to
summary judgment on the statutory claim.[50] It, too, should be remanded to the
trial court for further proceedings.
* * *
Hallco is
entitled to a decision on the merits of its claims that the County’s ordinance
effected a compensable taking of its property. Because the Court disagrees, I
respectfully dissent.
Nathan L. Hecht
Justice
Opinion
delivered: December 29, 2006
[1] Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470, 494 (1987) (recognizing “an important distinction between a claim
that the mere enactment of a statute constitutes a taking and a claim that the
particular impact of government action on a specific piece of property requires
the payment of just compensation”); City of Corpus Christi v. Pub. Utils.
Comm’n of Texas, 51 S.W.3d 231, 247 (Tex. 2001) (describing a takings claim
as “an as‑applied constitutional challenge, rather than a facial
challenge”).
[2] Yee v. City of Escondido, 503 U.S. 519, 533-534
(1992) (“While respondent is correct that a claim that the ordinance effects a
regulatory taking as applied to petitioners’ property would be unripe [because
petitioners did not seek an exception], petitioners mount a facial challenge to
the ordinance. . . . As this allegation does not depend on the extent
to which petitioners are deprived of the economic use of their particular pieces
of property or the extent to which these particular petitioners are compensated,
petitioners’ facial challenge is ripe.” (citations omitted)); Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 930 (Tex. 1998) (“[A] final decision on the
application of the zoning ordinance to the plaintiff’s property is not required
if the plaintiff brings a facial challenge to the ordinance.”).
[3] Williamson County Regional Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 186 (1985) (“[A] claim that the application of
government regulations effects a taking of a property interest is not ripe until
the government entity charged with implementing the regulations has reached a
final decision regarding the application of the regulations to the property at
issue.”); Mayhew, 964 S.W.2d at 929 (“[I]n order for a regulatory takings
claim to be ripe, there must be a final decision regarding the application of
the regulations to the property at issue.”).
[4] Mayhew, 964 S.W.2d at 929.
[5] Ante at ___ n.4.
[6] Ante at ___.
[7] Ante at ___.
[8] Ante at ___ (emphasis added).
[9] Tex. Health
& Safety Code § 361.003(2)-(3) (“(2) ‘Class I industrial solid
waste’ means an industrial solid waste or mixture of industrial solid waste,
including hazardous industrial waste, that because of its concentration or
physical or chemical characteristics: (A) is toxic, corrosive, flammable, a
strong sensitizer or irritant, or a generator of sudden pressure by
decomposition, heat, or other means; and (B) poses or may pose a substantial
present or potential danger to human health or the environment if improperly
processed, stored, transported, or otherwise managed. (3) ‘Class I nonhazardous
industrial solid waste’ means any Class I industrial solid waste that has not
been identified or listed as a hazardous waste by the administrator of the
United States Environmental Protection Agency under the federal Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
(42 U.S.C. Section 6901 et seq.).”); see also 40 C.F.R. § 261.4(b)
(2006) (listing nonhazardous solid wastes).
[10] County Solid Waste Disposal Act, 62nd Leg., R.S., ch.
516, § 18, 1971 Tex. Gen. Laws 1757, 1762 (stating in part that a county
“may prohibit the disposal of any solid waste within the county if the disposal
of the solid waste is a threat to the public health, safety, and welfare”)
(codified as amended at Tex. Health
& Safety Code § 364.012).
[11] See Tex.
Health & Safety Code § 361.061 (stating that with exceptions not
material to the present case, the Texas Commission on Environmental Quality “may
require and issue permits authorizing and governing the construction, operation,
and maintenance of the solid waste facilities used to store, process, or dispose
of solid waste under this chapter”); id. § 361.086(a) (“A separate
permit is required for each solid waste facility.”); 30 Tex. Admin. Code § 335.2
(2006).
[12] McMullen County, Texas, Resolution No. 1-16-91 (Jan.
14, 1991):
A RESOLUTION to
oppose the establishment of an industrial landfill at a site on the Hallco
Texas, Inc. property, being that 128.192 acre tract of land, found upon resurvey
to contain 128.214 acres of land in the James Garner Survey No. 6, Abstract 5 of
McMullen County.
WHEREAS the
McMullen County Commissioner’s Court has reviewed this proposal and agreed
unanimously that the establishment of this project would present a potential
hazard to the health and well being of the residents of McMullen County
and:
WHEREAS the
project could, in the event of a spill, leak, or accident, contaminate the
waters of the Frio and Nueces River and the water supplies of downstream users
of water from those rivers:
WHEREAS the
establishment of this project could in the event of a spill, leak or accident,
pollute and contaminate the underground water sands that are the main source of
drinking water for the rural residents of McMullen County livestock, and the
Federal Correctional Institute, Three Rivers:
WHEREAS the the
project could, in the event of a spill, leak, or accident, contaminate the
vegetarian, animal life, and soil adjacent to and on the watershed below the
proposed site:
WHEREAS this
project could create an objectionable odor to neighboring residents of McMullen
County.
NOW THEREFORE BE IT RESOLVED that the McMullen County Commissioner’s Court opposes
the establishment of an industrial landfill on the Hallco Texas, Inc. property
located in the James garner Survey No. 6, Abstract 5 of McMullen
County.
Duly adopted at a meeting of the McMullen County
Commissioner’s Court this 14th day of January, 1991.
[13] McMullen County, Texas, Ordinance No. 01-06-93 (June
14, 1993):
AN ORDINANCE PROHIBITING SOLID WASTE DISPOSAL WITHIN
THREE MILES OF CHOKE CANYON LAKE AND PROVIDING CIVIL AND CRIMINAL
PENALTIES
Be it ordained, ordered and adopted by the commissioners
court of McMullen County, Texas:
SECTION
1. GENERAL
PROVISIONS
WHEREAS, the McMullen County Commissioners Court has
both the responsibility and the authority to protect the health, safety, and
welfare of the citizens of McMullen County, Texas; and
WHEREAS, a safe and abundant supply of drinking water is
necessary to preserve and protect the health and welfare of the citizens of
McMullen County, Texas; and
WHEREAS, the Choke Canyon Lake provides a portion of the
drinking water for McMullen County as well as other counties and municipalities;
and
WHEREAS, the soil in the area of the lake is porous and
subsurface materials tend to be unstable and volatile;
WHEREAS, the disposal of solid waste within three (3)
miles of Choke Canyon Lake would constitute a threat to the public health,
safety and welfare; and
WHEREAS, the present technology available with regard to
the installation, operation and maintenance of solid waste disposal sites is
insufficient to prevent contamination of adjacent areas; and
WHEREAS, adequate waste disposal sites are available in
portions of the county which are not in close proximity of the lake;
(a)
IT IS THEREFORE ORDAINED AND ORDERED that the disposal of solid waste is
prohibited within three (3) miles of Choke Canyon Lake.
(b)
IT IS FURTHER ORDAINED AND ORDERED that the disposal of solid waste is not
prohibited in any other area of the county, provided that any such site complies
with all applicable state requirements.
SECTION
2. CIVIL REMEDIES
AND PENALTIES
(a)
Any violation of this ordinance is subject to a civil penalty of $10,000.00 for
each violation. Such penalty to be forfeited to McMullen County, Texas. Each day
that a violation continues constitutes a separate ground for
recovery.
(b)
The commissioners court of McMullen County, Texas, may bring a legal action to
enjoin violations of this ordinance and seek judgment for any civil
penalties.
SECTION
3. CRIMINAL
PENALTY
(a)
Disposal of solid waste in violation of this ordinance constitutes a
Class C misdemeanor punishable by a fine not to exceed $500.00.
(b)
Each day that a violation continues constitutes a separate offense under this
ordinance.
SECTION
4.
SEVERABILITY
If any portion of this ordinance is deemed to be in
violation of the statutes or the constitution of this state or the United States
by a court of competent jurisdiction, said portion shall be severed, and the
remaining portions of the ordinance shall remain in full force and
effect.
SECTION
5. EFFECTIVE
DATE
This ordinance shall become effective immediately upon
adoption.
Read and adopted this 14th day of
June, 1993, by a vote of 5 ayes and 0
nays.
[14] In 1999, the Legislature amended section 364.012 of the
Health and Safety Code to add subsections (e) and (f) as follows:
(e)
The commissioners court of a county may not prohibit the processing or disposal
of municipal or industrial solid waste in an area of that county for
which:
(1)
an application for a permit or other authorization under Chapter 361 has been
filed with and is pending before the commission; or
(2)
a permit or other authorization under Chapter 361 has been issued by the
commission.
(f)
The commission may not grant an application for a permit to process or dispose
of municipal or industrial solid waste in an area in which the processing or
disposal of municipal or industrial solid waste is prohibited by an ordinance,
unless the county violated Subsection (e) in passing the ordinance. The
commission by rule may specify the procedures for determining whether an
application is for the processing or disposal of municipal or industrial solid
waste in an area for which that processing or disposal is prohibited by an
ordinance.
Act of May 25, 1999, 76th Leg., R.S., ch. 570, § 5,
sec. 364.012, 1999 Tex. Gen. Laws 3110, 3111. The amendment does not apply to a
permit application filed before September 1, 1998, if on or before September 1,
1999, a county had enacted an ordinance under section 364.012. Id.
§ 6, 1999 Tex. Gen. Laws at 3112. Thus, this amendment does not apply in
this case.
[15] McMullen County, Texas, Ordinance No. 01-06-93 (June
14, 1993).
[16] Hallco Texas, Inc v. McMullen County, 934 F.
Supp. 238, 240 (S.D. Tex. 1996), aff’d, 109 F.3d 768 (5th Cir. 1997)
(table).
[17] Id. at 240; see U.S. Const. amend. V (“nor shall
private property be taken for public use, without just
compensation”).
[18] Tex.
Const. art. I, § 17 (“No person’s property shall be taken, damaged
or destroyed for or applied to public use without adequate compensation being
made . . . .”).
[19] 473 U.S. 172, 185‑197 (1985); but see San Remo
Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 348 (2005)
(Rehnquist, C.J., concurring) (indicating the Court may need to reconsider
Williamson County’s requirement that a litigant pursue relief in state
court first); Scott A. Keller, Note, Judicial Jurisdiction Stripping
Masquerading as Ripeness: Eliminating the Williamson County State Litigation
Requirement for Regulatory Takings Claims, 85 Tex. L. Rev. 199 (2006); J. David
Breemer, You Can Check Out But You Can Never Leave: the Story of San Remo
Hotel--the Supreme Court Relegates Federal Takings Claims to State Courts under
a Rule Intended to Ripen the Claims for Federal Review, 33 B.C. Envtl. Aff. L. Rev. 247
(2006).
[20] Hallco, 934 F. Supp. at 240.
[21] Hallco Texas, Inc. v. McMullen County, No.
04‑96‑00681‑CV, 1997 Tex. App. LEXIS 2020, at *6-9, 1997 WL 184719, at *3 (Tex.
App.—San Antonio April 16, 1997, no writ) (not designated for publication)
(“Hallco I”).
[22] In 2003, the Legislature required the Commission to
“adopt rules governing all aspects of the management and operation of a new
commercial landfill facility that proposes to accept nonhazardous industrial
solid waste for which a permit has not been issued” and to “suspend the
permitting process for any pending application for [such] a permit
. . . until the rules adopted . . . take effect.” Act of May
27, 2003, 78th Leg., R.S., ch. 1117, §§ 1-2, 2003 Tex. Gen. Laws 3207,
3207-3208. The Commission complied on March 19, 2004. 29 Tex. Reg. 2888 (2004);
see also 30 Tex. Admin.
Code §§ 335.580-.594.
[23] Tex. Gov’t
Code § 2007.001-.045.
[24] At the time, case authority indicated that a party
suing in state court to satisfy the Williamson exhaustion requirement
could reserve federal claims for later litigation in federal court so that the
state-court judgment would not bar the federal action. See Guetersloh
v. State, 930 S.W.2d 284, 289-290 (Tex. App.—Austin 1996, writ denied),
cert. denied, 522 U.S. 1110 (1998) (citing England v. Louisiana State
Bd. of Med. Exam’rs, 375 U.S. 411, 415-416 (1964); Jennings v. Caddo
Parish Sch. Bd., 531 F.2d 1331, 1332 (5th Cir. 1976); and Fields v.
Sarasota Manatee Airport Auth., 953 F.2d 1299, 1305-1306 (11th Cir. 1992)).
Since then, however, the United States Supreme Court has held that such a
reservation does not avoid the preclusive effect of the state-court judgment.
San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323,
338 (2005) (“England does not support [the] erroneous expectation that
[a] reservation would fully negate the preclusive effect of the state-court
judgment with respect to any and all federal issues that might arise in the
future federal litigation.”).
[25] Hallco Texas, Inc. v. McMullen County,
No. L-00-14 (S.D. Tex. April 24, 2000) (order dismissing action without
prejudice for want of jurisdiction).
[26] Hallco II, 94 S.W.3d 735,
738-739.
[27] Id. at 738.
[28] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415-416 (1922); accord Sheffield Dev. Co. v. City of Glenn
Heights, 140 S.W.3d 660, 670 (Tex. 2004) (footnotes
omitted).
[29] MacDonald, Sommer & Frates v. County of
Yolo, 477 U.S. 340, 348 (1986); accord Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998).
[30] Williamson County Regional Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 186 (1985); accord Mayhew, 964
S.W.2d at 929 (“[I]n order for a regulatory takings claim to be ripe, there must
be a final decision regarding the application of the regulations to the property
at issue.”).
[31] Palazzolo v. Rhode Island, 533 U.S. 606, 620-621
(2001).
[32] Mayhew, 964 S.W.2d at 929.
[33] Id. at 930 (citations omitted).
[34] Barr v. Resolution Trust Corp., 837 S.W.2d 627,
628 (Tex. 1992).
[35] John G. and Marie Stella Kenedy Mem. Found. v.
Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Sysco Food Servs., Inc. v.
Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).
[36] Sysco Food Servs., 890 S.W.2d at 801-804
(holding that collateral estoppel would not be applied, even though all three
factors were present, because application would not serve the doctrine’s
intended purposes – it would not conserve judicial resources, prevent multiple
lawsuits, or avoid the possibility of inconsistent findings – and fairness
concerns were especially important in light of the procedural uniqueness of the
case) (citing Blonder-Tongue Labs., Inc. v. University of Illinois
Found., 402 U.S. 313, 328 (1971) (stating that preclusion doctrines have the
“goal of limiting relitigation of issues where that can be achieved without
compromising fairness in particular cases”)).
[37] Biddison v. City of Chicago, 921 F.2d 724,
728-729 (7th Cir. 1991) (“several regulatory taking cases hold that a taking
accrues at the same time that it ripens”) (citing Norco Constr. v. King
County, 801 F.2d 1143, 1146 (9th Cir. 1986); Corn v. City of Lauderdale
Lakes, 904 F.2d 585, 588 (11th Cir. 1990); and McMillan v. Goleta Water
Dist., 792 F.2d 1453, 1457 (9th Cir. 1986)).
[38] Compare Maguire Oil Co. v. City of
Houston, 69 S.W.3d 350, 358 n.4 (Tex. App.—Texarkana 2002, pet. denied)
(“There is no specific statute of limitations for an inverse condemnation claim.
However, courts have held the ten‑year statute of limitations to acquire land by
adverse possession applies. Trail Enters., Inc. v. City of Houston, 957
S.W.2d 625, 631 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); see
also Tex. Civ. Prac. & Rem. Code
Ann. § 16.026(a) (Vernon Supp. 2002); Brazos River Auth. v. City
of Graham, 163 Tex. 167, 354 S.W.2d 99, 110 (1961); Waddy v. City of
Houston, 834 S.W.2d 97, 102 (Tex. App.—Houston [1st Dist.] 1992, writ
denied); Hudson v. Arkansas Louisiana Gas Co., 626 S.W.2d 561, 563 (Tex.
App.—Texarkana 1981, writ ref’d n.r.e.); Hubler v. City of Corpus
Christi, 564 S.W.2d 816, 823 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d
n.r.e.).”), with Tex. Civ. Prac.
& Rem. Code § 16.003(a) (“a person must bring suit for trespass
for injury to the estate or to the property of another . . . not later
than two years after the day the cause of action accrues”).
[39] Barfield v. Howard M. Smith Co., 426 S.W.2d 834,
840 (Tex. 1968) (citing K & G Oil Tool & Serv. Co. v. G & G
Fishing Tool Serv., 314 S.W.2d 782 (Tex. 1958), and Culver v.
Pickens, 176 S.W.2d 167 (Tex. 1944)).
[40] Sheffield Dev. Co. v. City of Glenn Heights, 140
S.W.3d 660, 671-673 (Tex. 2004) (footnotes omitted).
[41] Hallco I, 1997 Tex. App. LEXIS 2020, at *8, 1997
WL 184719, at *3.
[42] See, e.g., Village of Euclid v. Amber Realty
Co., 272 U.S. 365, 390, 397 (1926) (upholding zoning regulations creating
“residential districts, from which business and trade of every sort, including
hotels and apartment houses, are excluded”); Lombardo v. City of Dallas,
73 S.W.2d 475, 478 (Tex. 1934) (“The right to establish zoning districts is well
established throughout the United States, and has been approved by the courts of
many jurisdictions.”).
[43] See, e.g., City of Dallas v.
Vanesko, 189 S.W.3d 768 (Tex. 2006).
[44] See, e.g., Northwestern Laundry v. City of
Des Moines, 239 U.S. 486, 491-492 (1916) (“So far as the Federal
Constitution is concerned, we have no doubt the State may by itself or through
authorized municipalities declare the emission of dense smoke in cities or
populous neighborhoods a nuisance and subject to restraint as such
. . . .”).
[45] Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937
(Tex. 1998) (“Historical uses of the property are critically important when
determining the reasonable investment‑backed expectation of the
landowner.”).
[46] Lingle v. Chevron USA, Inc., 544 U.S. 528, 540
(2005).
[47] Sheffield, 140 S.W.3d 660, 674 (Tex. 2004)
(“Furthermore, apart from what the Supreme Court has said, we continue to
believe for purposes of state constitutional law, as we held in [Mayhew,
964 S.W.2d at 933-934], that the statement in Agins is correct: that
whether regulation substantially advances legitimate state interests is an
appropriate test for a constitutionally compensable taking, at least in some
situations.”).
[48] Sheffield, 140 S.W.3d at
678-679.
[49] Id. at 679.
[50] Tex. Gov’t
Code § 2007.001-.045. | {
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724 So.2d 163 (1998)
Dr. Glenn PARKER, Appellant,
v.
STATE OF FLORIDA BOARD OF REGENTS for and on behalf of the FLORIDA STATE UNIVERSITY, Appellee.
No. 96-1630
District Court of Appeal of Florida, First District.
December 28, 1998.
*164 John A. Rudolph, Jr. and Michael P. Spellman of Douglass & Rudolph, Tallahassee, for Appellant.
Edward S. Schwartz, Law Offices of Philip M. Gerson, P.A., Miami, for Amicus Curiae Academy of Florida Trial Lawyers.
Wendy S. Morris, Associate Counsel, Florida Board of Regents, Tallahassee, for Appellee.
VAN NORTWICK, J.
Dr. Glenn Parker, a professor employed by Florida State University, sued the State of Florida Board of Regents for fraudulent misrepresentation and breach of contract after his salary was not raised as allegedly promised. Following a jury verdict awarding Dr. Parker damages under both counts of his complaint, the trial court granted a judgment in favor of appellee, determining that Dr. Parker's claims were barred by the doctrine of sovereign immunity. For the reasons that follow, we agree with the trial court that the doctrine of sovereign immunity bars Dr. Parker's action for fraud; however, sovereign immunity does not bar his action and recovery of damages for breach of contract. Accordingly, the final judgment for the state is affirmed in part and reversed in part and the cause is remanded to the trial court with directions that final judgment be entered in favor of Dr. Parker in accordance with the jury verdict on the breach of contract count.
*165 Factual and Procedural Background
Dr. Parker and his wife were employed by Florida State University (FSU) when, in early 1990, they received offers of employment from the University of Texas at Dallas (UTD). UTD offered Dr. Parker an appointment as a professor of government and a $75,000 salary based on a nine-month year, among other things. At the time he received the offer, Dr. Parker was earning $59,425 per year at FSU. Following the UTD offer, Charles Cnudde, the FSU Dean of the College of Social Sciences, communicated to his supervisor, the FSU Vice President of Academic Affairs and Provost Augustus Turnbull, concerning the possibility that the Parkers might leave and take positions at UTD. Provost Turnbull informed Dean Cnudde that there was no salary pool from which to make a counteroffer to Dr. Parker, but that he would "support whatever commitment you [Cnudde] make from College resources."
In early April 1990, Dr. Parker, Dean Cnudde, and Dr. James Gwartney, Dr. Parker's direct supervisor, met in the dean's office and reviewed UTD's offer to Dr. Parker. Dean Cnudde informed Dr. Parker that the university could match the offer with the exception of the $75,000 salary; but that insufficient funds were available in the College of Social Sciences or through the provost to match the UTD offer. Nonetheless, according to Dr. Parker, Dean Cnudde promised that within three years he could come up with the necessary resources to match the $75,000 salary offered by UTD. This agreement was reduced to a written memorandum from Dean Cnudde to Dr. Parker dated April 24, 1990, which provided in pertinent part:
As you know, the Provost is not able to provide us with sufficient resources to match your salary offer. Our plan is to move you up to that level, and beyond, as soon as the University budget situation permits. Given the expectation of a very low salary increase budget for this year, I do not expect to be able to reach the salary in the mid-seventies prior to the end of the next three-year budget period.
Dr. Parker and his wife declined the offers from UTD and remained at FSU.
Over the next three years, Dr. Parker's salary was increased to the sum of $68,926 for the 1993-94 academic year. When a $75,000 salary was not forthcoming, Dr. Parker filed the instant action alleging fraudulent misrepresentation and breach of contract. With respect to the fraudulent misrepresentation claim, his complaint alleged that at all relevant times Dean Cnudde was acting within the course and scope of his employment with the university and was an authorized agent of the university. He alleged that at the time of the meeting in April 1990, and subsequent memorandum of April 24, 1990, that funds were available to match the UTD offer extended to Dr. Parker. Regarding the alleged fraudulent misrepresentation, the complaint states in pertinent part as follows:
22. Defendant's authorized agent, Dean Cnudde, made verbal and written misrepresentations to Plaintiff of material fact in April, 1990, ... that funds were not immediately available to match the salary amount contained in the [UTD] offer.
23. At the time that Dean Cnudde made the misrepresentations to Plaintiff ... Dean Cnudde had superior knowledge of the subject of availability of funds than Plaintiff, and was in a better position to ascertain the truth of his statements than Plaintiff.
24. At the time that Dean Cnudde made the misrepresentations to Plaintiff ... Dean Cnudde knew that the statements were false or, in the alternative, made the statements with reckless disregard as to their truth or falsity.
25. Dean Cnudde made the statements to Plaintiff ... with the specific intent of discouraging Plaintiff from accepting the [UTD] offer as well as ensuring that Plaintiff would remain as a professor within the College of Social Sciences at Florida State University.
26. Plaintiff accepted the statements of Dean Cnudde ... and thereby justifiably, reasonably and detrimentally relied upon Dean Cnudde's misrepresentations.
With respect to the breach of contract action, Dr. Parker alleged that the university did not meet its obligation to increase his *166 salary to $75,000 as promised, even though salary funds were available to meet this obligation, as evidenced by raises received by other faculty within the Department, and other discretionary funds were available sufficient to meet FSU's contractual obligation to Dr. Parker.
In its answer, among other things, the state admitted the complaint's allegations that at all times Dean Cnudde was acting within the course and scope of his employment and was an authorized agent of FSU. Although the state raised several affirmative defenses, it neither contended that the alleged contract of April 24, 1990 was illegal, because Dean Cnudde lacked the authority to enter into that contract, nor contended that Dr. Parker's claims were barred by sovereign immunity.
The case proceeded to trial at which evidence was introduced that, as early as March 1990, FSU possessed available funds for vacant faculty positions which could have been used to pay additional salary to Dr. Parker.[1]
At the close of Dr. Parker's case-in-chief, the state moved for a directed verdict on the fraudulent misrepresentation and breach of contract claims. The state argued then for the first time that Dean Cnudde was unauthorized to contract and bind the state to the April 24, 1990 contract with Dr. Parker, relying upon sections 240.227(5)[2] and 240.227(12),[3] Florida Statutes (1989). Regarding the fraud claim, the state argued that bad faith was inherent in every action for fraud and, therefore, the state cannot be held liable for the fraud committed by Dean Cnudde pursuant to section 768.28(9)(a), Florida Statutes (1989). The trial court denied the state's motion.
The state did not seek leave from the trial court to amend its answer or to add affirmative defenses raising sovereign immunity or illegality of the contract alleged. Further, the state did not request the trial court to instruct the jury or to include in the verdict form any issue relating to whether Dean Cnudde was authorized by FSU to enter into the contract with Dr. Parker or whether the dean acted in bad faith or with malicious purpose in committing the fraud.
With regard to the cause of action for fraudulent misrepresentation, the trial court gave the standard jury instruction on fraudulent misrepresentation, with some minor editorial changes, as follows:
[O]n the Plaintiff's second claim for fraudulent misrepresentation, the issues for your determination are, first, whether Dean Cnudde made a false statement concerning a material fact of Dr. Parker. Second, whether Dean Cnudde knew the statement was false when he made it or made the statement knowing he was without knowledge of its truth or falsity. Third, whether in making the false statement Dean Cnudde intended that Dr. Parker would rely on the false statement. Fourth, whether Dr. Parker actually did rely on the false statement. Fifth, whether Dr. Parker suffered a loss as a result.
* * *
The next issue for your determination on the second claim is whether the defendant had actual or implied knowledge that the representation was false.
You may find that Dean Cnudde had such knowledge if he made the misrepresentation deliberately, knowing that the statement was false or made the representation *167 without knowledge as to its truth or falsity....
The jury returned a verdict with written interrogatories finding that there was a contract between Dr. Parker and the state which the state breached damaging Dr. Parker in the amount of $65,000. Next, the jury found that employees of the state had made fraudulent misrepresentations to Dr. Parker damaging him in the amount of $86,450.
Thereafter, the state filed a motion for entry of judgment in accordance with its motion for directed verdict and/or judgment notwithstanding the verdict. In addition to previous arguments, in connection with its motion the state asserted that Dean Cnudde was prohibited from entering into the April 24, 1990 contract with Dr. Parker by section 287.0582, Florida Statutes (1989),[4] and rule 6C-5.211(3)(c), Florida Administrative Code.[5]
The trial court entered the order appealed, ruling that sovereign immunity barred both the fraud and contract claims. As to the fraudulent misrepresentation claim, the court ruled that while bad faith is not an express element of the cause of action for fraud, it is the gist of such cause of action and thus, section 768.28(9)(a), Florida Statutes (1989), precluded Dr. Parker's claim for fraudulent misrepresentation. Regarding Dr. Parker's contract claim, the court ruled that because Dr. Parker had failed to show the statutory authority for the state, through Dean Cnudde, "to enter into a contract supplemental to the annual appointment contracts for a certain salary and with an uncertain performance date which could be as long as three years," the state was protected by sovereign immunity from liability for breach of the April 24, 1990 contract.
Fraudulent Misrepresentation Claim
The issue presented here is whether as a matter of law the element of bad faith is inherent in any action for fraudulent misrepresentation[6] and, as a result, fraudulent misrepresentation claims against the state are barred by the doctrine of sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes (1989).
Section 768.28(1), Florida Statutes (1989), provides that, subject to the limitations of section 768.28, a governmental agency is liable for:
injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state....
Section 768.28(9)(a) provides for sovereign immunity for acts committed by governmental employees acting within the course and scope of employment which are "committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla. Stat. (1989). Although the statute does not define "bad faith," under section 768.28(9)(a), "[b]ad faith has been equated with the actual malice standard." Ford v. Rowland, 562 So.2d 731, 734 (Fla. 5th DCA 1990) (citations omitted).
Dr. Parker argues that the trial court erred in ruling that bad faith is always inherent in a fraud claim. Dr. Parker reasons that bad faith would only be inherent in the fraud action if it had been alleged and proven that Dean Cnudde had actual knowledge of *168 the falsity of his representations. Dr. Parker contends that he neither alleged nor attempted to prove that Dean Cnudde knew his representations were false at the time they were conveyed. Instead, he alleged and proved that Dean Cnudde, who had superior knowledge regarding the availability of funds, was guilty of fraud because he made his statements without knowledge of their truth or falsity, which he argues is an alternative means of establishing scienter in a claim for fraudulent misrepresentation. See Fla. Std. Jury Instr. (Civ.) MI8. Thus, he submits, bad faith intent to deceive on the part of Dean Cnudde was not alleged or proven below. Moreover, Dr. Parker argues that had the state wanted the benefit of the sovereign immunity statute, it was required to introduce evidence supporting the defense and should have requested a special jury instruction on bad faith and a special interrogatory to the jury on the question of whether Dean Cnudde had acted in bad faith or with malicious purpose. Because no evidence was introduced and the jury was not asked to find bad faith, bad faith was not proven in this case. As a result, Dr. Parker contends, since fraud can exist without bad faith, the trial court erred in entering a final judgment for the state on the fraudulent misrepresentation count, citing McGhee v. Volusia County, 679 So.2d 729 (Fla.1996).
The state's entire argument is that for fraud to exist, as a matter of law, bad faith must also exist. We agree. Although our review of the law of fraud in Florida reveals that bad faith has not always been considered a necessary element of fraud, nor always the gist of that cause of action, First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536, 539 (Fla.1987), established that bad faith must always be considered a necessary element of fraud.
In Florida, legal scienter for purposes of fraud can be established in three ways. As stated in Joiner v. McCullers, 158 Fla. 562, 28 So.2d 823, 824 (1947), quoting Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894):
A false representation of a material fact, made with knowledge of its falsity, to a person ignorant thereof, with intention that is (sic) shall be acted upon, followed by reliance upon and by action thereon amounting to substantial change of position, is a fraud of which the law will take cognizance.
The knowledge, by the maker of the representation, of its falsity, or, in technical phrase, the scienter, can be established by either one of the three following phases of proof: (1) That the representation was made with actual knowledge of its falsity; (2) without knowledge either of its truth or falsity; (3) under circumstances in which the person making it ought to have known, if he did not know, of its falsity. Under the first phase the proof must show actual knowledge of the falsity of the representation. Under the second phase it should show that the representation was made in such absolute, unqualified, and positive terms as to imply that the party making it had knowledge of its truth, and that he made such absolute, unqualified, and positive assertion on a subject of which he was ignorant, and that he had no knowledge whether his assertion in reference thereto was true or false. Under the third phase, the proof should show that the party occupied such a special situation or possessed such means of knowledge as made it his duty to know as to the truth or falsity of the representation made. If the proof establishes either one of these three phases, the scienter is sufficiently made out.
See also Watson v. Jones, 41 Fla. 241, 25 So. 678 (1899); Hinson v. Drummond, 98 Fla. 502, 123 So. 913 (1929); Young v. Johnson, 538 So.2d 1387 (Fla. 2d DCA 1989); see also Restatement (Second) of Torts § 526 (1977). Thus, while malice or actual corrupt intent to deceive may be a central factual element in many fraud cases, under the second and third phases in Joiner, such intent is not always necessary to establish fraudulent misrepresentation, see Logan v. Logan, 22 Fla. 561, 566 (1886), nor is intent to commit fraud necessarily the gravamen of every cause of action for fraudulent misrepresentation, see Upchurch v. Mizell, 50 Fla. 456, 40 So. 29, 32 (1905).
In Ablanedo, the Florida Supreme Court held that "proof of fraud sufficient to support compensatory damages is sufficient to create *169 a jury question regarding punitive damages." Ablanedo, 511 So.2d at 539. The court explained that "[t]his is so because intentional misconduct is a necessary element of fraud." Id. As observed by the Third District Court of Appeal, under the rule established in Ablanedo:
Scienter, or guilty knowledge, is an element of intentional misconduct, which can be established by showing actual knowledge, or that the defendant was reckless or careless as to the truth of the matter asserted.
Ocean Bank of Miami v. Inv-Uni Inv. Corp., 599 So.2d 694, 697 (Fla. 3d DCA), rev. denied, 606 So.2d 1165 (Fla.1992).
Thus, under the broad rule announced in Ablanedo, bad faith must be deemed to be a necessary element of any action for fraud whether the fraud action is based on intentional misconduct or on reckless disregard for the truth. To the extent that prior Florida case law suggested otherwise, we conclude that such cases were overruled sub silencio by Ablanedo.
Under section 768.28(9)(a), the state is liable for the actions of Dean Cnudde within the scope of his employment unless he was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Because Dr. Parker's action for fraudulent misrepresentation per se contains the element of bad faith, Ablanedo, 511 So.2d at 539, the state cannot be liable for the fraudulent acts of Dean Cnudde even if the dean did not have actual knowledge of the falsity of these statements. Accordingly, the trial court's directed verdict in favor of the state on the fraudulent misrepresentation claim is affirmed.
Breach of Contract Claim
Turning to the contract claim, in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4, 5 (Fla.1984), the supreme court held that, where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from an action arising from the state's breach of that contract. We agree with Dr. Parker that section 240.227(5) establishes the dean's contractual authority, because it allows the president of a university to appoint university personnel and provide for the compensation and other conditions of employment consistent with applicable collective bargaining agreements. Moreover, rule 6C-5.111(1)(b)2., Florida Administrative Code, (repealed 1996), allowed the president or the president's designee to give additional salary increases at times other than the time of a faculty member's annual salary increase. The overwhelming evidence presented at trial showed that Dean Cnudde regularly performed these functions within the college on behalf of the president. The dean executed annual faculty appointments prior to each academic year and he had the authority to give discretionary increases through the annual budgeting process with monies available in the college. Further, and significantly to the instant case, Provost Turnbull wrote a memo to Dean Cnudde advising the dean that the provost would support whatever measures the dean took to keep Dr. Parker.
We also agree with Dr. Parker that section 287.0582, Florida Statutes (1989), does not apply to the instant contract. Section 287.0582 prohibits a public officer from entering into a contract on behalf of the state "for the purchase of services or tangible personal property for a period in excess of 1 fiscal year" unless the payment is made contingent on legislative appropriation. As used in section 287.0582, "the purchase of services" refers to contractual services which are defined in section 287.012(4)(a) as applying only to those services rendered by independent contractors. Tenured faculty are considered permanent employees of the university, not independent contractors. See rule 6C-5.225(2)(b), Fla. Admin. Code (repealed 1996). Thus, section 287.0582 does not apply here.
Rule 6C-5.211(3)(c), Florida Administrative Code (repealed 1996) is equally inapplicable. Rule 6C-5.211(3)(c) provides that a faculty contract or letter of appointment shall not be for a term exceeding one year. Dr. Parker's breach of contract action, however, was based upon a conditional contract which *170 was capable of being performed by FSU within one year. Dean Cnudde committed to increasing Dr. Parker's salary as soon as the university budget situation permitted; and the undisputed evidence in the record established that the budget permitted the dean to raise Dr. Parker's salary to $75,000, as committed to by the dean, within 12 months of the April 24, 1990 letter.
In summary, we hold that the state is not entitled to sovereign immunity on Dr. Parker's breach of contract claim. It is clear from this record that Dean Cnudde was acting within the scope of his employment when he entered into the contract with Dr. Parker. The state admitted in its answer and in the pretrial stipulation that, at all times, "Dean Cnudde acted within the course and scope of his employment with the defendant and was an authorized agent of the defendant." Further, Dean Cnudde possessed the general authority under section 240.227(5) and rule 6C-5.111(1)(b)2., along with the specific grant of authority from Provost Turnbull, to contract with Dr. Parker.
In addition, the April 24, 1990 letter was a conditional contract to raise Dr. Parker's salary "as soon as the budget situation permits." There was an abundance of evidence before the jury to support a finding that funds available in the budget permitted the dean to raise Dr. Parker's salary within the first academic year, or in the 1990-91 academic year. Thus, whether the dean could bind the state to a multi-year contract is not determinative, because evidence was introduced that the contract was capable of performance within one year. Had the state wanted a specific finding otherwise, it should have submitted this issue to the jury as well.
AFFIRMED in part, REVERSED in part, and REMANDED with directions that final judgment be entered in favor of Dr. Parker in accordance with the jury verdict on the breach of contract count.
BOOTH and WOLF, JJ., concur.
NOTES
[1] The record reflects that each faculty member is given a legislative "line" for budgeting purposes. If the faculty member vacates that position, the line becomes vacant. In the past, vacant lines were used primarily for recruiting new faculty. Nevertheless, if a line was not filled during the budget year, the record evidence reflects that the college could use the line for hiring temporary employees, purchasing supplies and equipment and other costs. There was evidence that before 1990, the College of Social Sciences did not use vacant lines to meet counteroffers, but by 1991 there were documented instances in which vacant faculty lines were being "raided" to make counteroffers.
[2] Section 240.227(5) gives each university president authority to appoint university personnel and provide their compensation.
[3] Section 240.227(12) gives each university president the authority to execute contracts for goods, equipment, and services, including educational services.
[4] Section 287.0582, Florida Statutes (1989), prohibits a public officer from entering into a contract on behalf of the state "for the purchase of services or tangible personal property for a period in excess of 1 fiscal year," unless the contract contains a statement to the effect that payment under the contract is contingent upon legislative appropriation.
[5] Rule 6C-5.211(3)(c), Fla. Admin. Code (repealed 1996), provides, in pertinent part, that a faculty contract or letter of appointment shall not exceed one year.
[6] Dr. Parker does not base his cause of action on negligent misrepresentation. The distinctions between fraudulent misrepresentation and negligent misrepresentation are discussed in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997).
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791 F.2d 922
U.S.v.Ammar
85-3468
United States Court of Appeals,Third Circuit.
4/16/86
W.D.Pa.,
Mencer, J.
AFFIRMED
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USCA1 Opinion
July 15, 1994 [Not for Publication] [Not for Publication] United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 93-1675 TODD G. DUCHARME, Plaintiff, Appellant, v. STATE OF RHODE ISLAND, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________ ____________________ Before Torruella, Cyr, and Stahl, Circuit Judges. ______________ ____________________ Richard A. Sinapi with whom Sinapi Law Associates, Ltd. was on __________________ _____________________________ brief for appellant. Robin E. Feder, Assistant Attorney General, with whom Jeffrey B. _______________ __________ Pine, Attorney General, was on brief for appellee. ____ ____________________ ____________________ Per Curiam. In this interlocutory appeal, ____________ plaintiff-appellant Todd G. Ducharme ("Ducharme") contends that the district court erred in refusing to approve a consent judgment in settlement of Ducharme's civil rights action against the Rhode Island Division of State Police ("State Police") and Raymond A. Driscoll ("Driscoll"), a member of the State Police. Alternatively, Ducharme argues that the district court exceeded its authority in preventing the parties from entering the proposed consent decree on their own in the guise of an accepted offer of judgment pursuant to Federal Rule of Civil Procedure 68. I. I. __ BACKGROUND BACKGROUND __________ On July 23, 1991, Ducharme was arrested by the State Police and charged with disorderly conduct. The charge was based on Ducharme's "abusive and belligerent" behavior toward a lifeguard who had requested Ducharme to remove his dog from Beach Pond, a state-run facility located in Exeter, Rhode Island. Clad only in "swim trunks," Ducharme was taken to a police building and strip searched. Specifically, defendant Driscoll commanded Ducharme to pull his swim trunks down to his knees, pull them up again, and then take them off so that Driscoll could search the pockets of the swim trunks. Driscoll then returned the swim trunks to Ducharme. According to State Police Superintendent Edmond S. Culhane, -2- 2 Jr., Ducharme was strip searched because it "is a routine procedure performed prior to placing an individual in a holding cell." We assume that Ducharme was then placed in a holding cell and that the disorderly conduct charge was resolved in some fashion. Ducharme later filed this action in the United States District Court for the District of Rhode Island against the State Police and Driscoll.1 The complaint alleges, inter alia, that the strip search constituted a _____ ____ violation of Ducharme's right to be free of unreasonable searches and seizures pursuant to the Fourth and Fourteenth Amendments to the Constitution, actionable under 42 U.S.C. 1983. The complaint contains specific allegations concerning the unreasonableness of an automatic strip search policy. The complaint asserts that "it is well settled law that mandatory strip searches of arrestees charged with minor offenses, absent a reasonable suspicion that the arrestee is concealing weapons or contraband, such as that performed on [Ducharme], are unconstitutional." As additional evidence that an automatic strip search policy is unreasonable, the complaint reports that Rhode Island's Attorney General issued the following advice to the State Police in 1985: ____________________ 1. The complaint names Driscoll in both his individual and official capacities. -3- 3 The strip searching of persons detained for a short period of time for petty offenses should not be undertaken as a matter of routine procedure. The persons arrested for petty offenses should not be strip searched unless there is probable cause to believe that the person is concealing a weapon, drugs or evidence of a crime. Ducharme also alleged that he might again fall victim to defendants' strip search policy. In particular, Ducharme alleged that he resides in close proximity to the State of Rhode Island and has and continues to travel to and frequent places in the State of Rhode Island, as a result of which, he has [been] and continues to be exposed to the possibility of further invasion of his privacy by Defendants' policy of routinely strip searching arrestees for minor offenses, even in the absence of reasonable grounds to justify such a search. In addition to requesting compensatory damages and attorney's fees, Ducharme also sought several forms of equitable relief: (1) a declaratory judgment that the automatic strip search policy of the State Police is unconstitutional; (2) a declaratory judgment that defendants' strip search of Ducharme was unconstitutional; and (3) an injunction preventing "[d]efendants from routinely strip searching [Ducharme] and all other persons arrested for minor offenses, absent reasonable suspicion that the arrestee is concealing a weapon or contraband." -4- 4 Prior to the filing of an answer or the commencement of discovery, the parties began to negotiate a settlement. In February 1993, defendants made an offer of judgment pursuant to Rule 682 in the amount of $7500. Ducharme rejected the offer, explaining that he would not settle without a promise on the part of the defendants that they would no longer conduct unreasonable strip searches. Defendants responded by proposing, in addition to the money judgment, a letter to Ducharme reportedly stating that the policy of the State Police was now in conformity with the Attorney General's 1985 letter.3 Once again, Ducharme refused. Sometime thereafter the parties agreed on a proposed consent judgment, presented to the district court in ____________________ 2. In pertinent part, Fed R. Civ. P. 68 provides: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. 3. This is our understanding of statements made by the State at oral argument before this court. The letter does not appear in the record on appeal. -5- 5 April 1993, that would award Ducharme $7500 and bind the defendants with the following prospective provision: Defendants shall not require as a matter of policy, nor shall they perform or cause to be performed strip searches of arrestees charged with misdemeanor or motor vehicle offenses, absent a reasonable suspicion that an arrestee is concealing a weapon or contraband, and shall otherwise conduct searches of arrestees within the limitations imposed by law. In an unrecorded chambers conference, the district court apparently expressed its concern that the proposed decree would saddle the court with the task of supervising strip searches conducted by the State Police and on that basis refused to approve the judgment. With this avenue closed, the parties developed another solution. Defendants orally agreed to amend their Rule 68 offer of judgment to include the terms of the proposed consent decree. Because Rhode Island law prohibits the State from settling a case without some form of court approval, see R.I. Gen. Laws 9-31-6 and 9-31-10 (1985), ___ the parties gave the district judge an opportunity to object by notifying him of their intentions. In another unrecorded chambers conference, the district court evidently stated that it had the discretion to prevent the entry of a consent judgment even if the judgment was offered in the form of an otherwise nondiscretionary, self-executing Rule 68 offer and acceptance. -6- 6 Finally, Ducharme filed a self-styled "Motion for Entry of Consent Judgment or in the Alternative Withdrawal of the Court's Interference With the Entry of Judgment by Way of a Rule 68 Offer and Acceptance Thereof." In the meantime, the parties amended the proposed consent judgment to specify that it could only be enforced by Ducharme. The district court conducted a hearing in June 1993, and, after considering the parties' arguments, denied Ducharme's motion from the bench. This appeal followed. II. II. ___ JURISDICTION JURISDICTION ____________ Two important jurisdictional issues prevent us from addressing the merits of this appeal. First, Ducharme's claims for equitable relief do not fall within the subject matter jurisdiction of the federal courts. Second, to the extent that the prospective relief contained in the proposed consent judgment does not amount to an injunction, we have no appellate jurisdiction to consider the district court's interlocutory refusal to approve the proposed consent judgment. We discuss each jurisdictional issue in turn. A. Subject Matter Jurisdiction _______________________________ Article III of the Constitution outlines the limits of our mandate; federal jurisdiction extends only to actual "Cases [or] Controversies." A federal court is powerless to answer hypothetical legal questions or legislate the -7- 7 resolution of future problems. Nor may a federal court intervene in an actual, ongoing controversy unless that controversy is reduced to a dispute among parties lawfully before the court. Accordingly, to stand before an Article III court, "[a] plaintiff must demonstrate a concrete injury caused by the defendant and remediable by the requested relief." American Postal Workers Union v. Frank, 968 F.2d ______________________________ _____ 1373, 1378 (1st Cir. 1992). The standing inquiry does not require an all-or- nothing analysis, but may call for some careful dissection. A suit may proceed in federal court even if some aspects of the plaintiff's requested relief are not likely to redress plaintiff's injuries. By the same token, however, a plaintiff who is otherwise properly in federal court may lack standing to pursue particular forms of relief. For example, while past injury generates standing to bring an action for damages, "past exposure to harm will not, in and of itself, confer standing upon a litigant to obtain equitable relief `[a]bsent a sufficient likelihood that [the litigant] will again be wronged in a similar way.'" Id. at 1376 (quoting ___ City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (first ___________________ _____ brackets in original). In this case, Ducharme clearly has standing to bring an action for damages against the defendants based on the July 23, 1991, strip search. It is equally obvious that -8- 8 Ducharme has no standing to request equitable relief. According to Ducharme, the routine strip search policy only applied to arrestees about to be placed in a holding cell. We simply cannot assume that Ducharme will violate the law in the future in a manner that would lead the State Police to arrest him and place him in a holding cell. And, as far as the record reveals, Ducharme is not in a State Police holding cell now, nor is he about to be placed in one. Finally, it appears that even in the event of a future arrest, Ducharme is unlikely to be subject to an unconstitutional search if, as the State represented at oral argument, the State Police strip search policy now conforms to the prospective provision of the proposed consent judgment. In the absence of a case or controversy with respect to Ducharme's claim for equitable relief, Lyons teaches that neither we nor the district court _____ have jurisdiction to consider the merits of an equitable decree. Nor do we perceive any reason why the outcome of the jurisdictional inquiry should turn on whether the decree is the product of a pre-trial consent judgment or a post-trial order. We hasten to add that the peculiarities of Rule 68 do not require a court to postpone ruling on the jurisdictional basis of the judgment the parties seek to enter. We acknowledge that Rule 68 requires the clerk of the district court to enter the parties' agreed-upon judgment in -9- 9 a ministerial fashion. See Fed. R. Civ. P. 68 (providing ___ that "the clerk shall enter judgment" according to the terms _____ of a timely accepted offer) (emphasis added); see generally ___ _________ Mallory v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) ("Rule _______ ______ 68 . . . leaves no discretion in the district court to do anything but enter judgment once an offer has been accepted.") Accordingly, a district court would not ordinarily have an opportunity to question the jurisdictional basis for an injunction embodied in the judgment until some later time, such as when one party seeks to enforce the injunction. But Rule 68 cannot require entry of a jurisdictionally defective judgment when the parties bring that judgment to the attention of the court. Our conclusion as to the claim for equitable relief does not necessarily imply, however, that subject matter jurisdiction is now entirely absent. As we have mentioned, Ducharme still has standing to pursue his damages claim. Consequently, Ducharme still has the right to settle his damages claim by way of an agreement that does not ask the court to ignore its jurisdictional limitations. And, because neither the proposed consent judgment nor defendants' amended Rule 68 offer of judgment are on their terms "injunctions," the parties may simply have been seeking the district court's approval of a private contract containing a promise governing -10- 10 defendants' future behavior. With the issues thus narrowed, we now turn to the matter of appellate jurisdiction. B. Appellate Jurisdiction __________________________ Ducharme concedes that his appeal does not concern a "final decision[]" appealable under 28 U.S.C. 1291 (1988), but correctly observes that we are authorized by 28 U.S.C. 1292(a)(1) (1988) to hear an appeal from "[i]nterlocutory orders of the district courts . . . refusing . . . injunctions." The Supreme Court has held that an order refusing to approve a consent judgment containing injunctive relief has the "practical effect" of a denial of an injunction and is therefore appealable pursuant to Section 1292(a)(1). Carson v. American Brands, Inc., 450 U.S. 79, ______ ______________________ 83-84 (1981); Durrett v. Housing Auth. of Providence, 896 _______ _____________________________ F.2d 600, 602 (1st Cir. 1990). We have already concluded that neither we nor the district court have jurisdiction to consider the entry of an actual injunction. Thus, we need only determine whether we have jurisdiction to review a district court's refusal to approve a consent judgment containing non-injunctive yet forward-looking contractual relief. Plainly, we do not. Even if a simple contractual promise is nearly as valuable to a plaintiff as an actual injunction, such a promise is not the equivalent of an injunction and therefore a district court's refusal to approve such a promise does not constitute -11- 11 the denial of an "injunction" within the meaning of Section 1292(a)(1). Moreover, to the extent that the prospective provision of the settlement agreement in this case is amenable to interpretation as an "injunction," appellate jurisdiction would be meaningless because there is no jurisdiction in the district court for the issuance of such an injunction. In short, Ducharme has offered no valid basis for the exercise of appellate jurisdiction.4 III. III. ____ CONCLUSION CONCLUSION __________ In light of the jurisdictional defect outlined above, the district court's order denying plaintiff's motion is vacated, and the cause is remanded for dismissal of plaintiff's claim for equitable relief for lack of jurisdiction. Any further action necessary to resolve plaintiff's damages claim shall proceed in harmony with this opinion. So ordered. ___________ ____________________ 4. We decline Ducharme's invitation to treat his appeal as a petition for a writ of mandamus pursuant to 28 U.S.C. 1651 (1988). See generally In re Pearson, 990 F.2d 653, 656 (1st ___ _________ _____________ Cir. 1993) (describing supervisory mandamus powers of the courts of appeals); In re Ellsberg, 446 F.2d 954, 955-57 (1st ______________ Cir. 1971) (same). This is simply not an "extraordinary situation" that would justify our "sparing[]" use of mandamus. In re Pearson, 990 F.2d at 656 (citing, inter ______________ _____ alia, Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 ____ __________________ _____________ (1980) (per curiam); Will v. United States, 389 U.S. 90, 107 ____ _____________ (1967)). -12- 12
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649 F.Supp.2d 1055 (2009)
Gary Edward WILLIAMS, Petitioner,
v.
Warden, D. DEXTER, et al., Respondents.
Case No. CV 08-2828-DDP(RC).
United States District Court, C.D. California.
August 19, 2009.
*1057 Gary Edward Williams, Blythe, CA, pro se.
Kenneth C. Byrne, Tasha G. Timbadia, Office of the Attorney General, Los Angeles, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DEAN D. PREGERSON, District Judge.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well *1058 as petitioner's objection, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered dismissing the habeas corpus petition and action as untimely.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the petitioner.
REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
ROSALYN M. CHAPMAN, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
I
On or about September 21, 2000, in Los Angeles County Superior Court case no. YA043048, petitioner Gary Edward Williams, pursuant to a written plea agreement, pleaded nolo contendere to, and was convicted of, one count of committing a lewd act upon a child in violation of California Penal Code ("P.C.") § 288(c)(1), and under the terms of the plea agreement, the trial court sentenced petitioner to two years in state prison, stayed the imposition of the sentence, and ordered petitioner to serve one year in the county jail followed by five years on probation, to register as a sex offender and to complete sex offender classes and treatment. Clerk's Transcript ("CT") 80-81; Lodgment no. 5 at 2-3. On February 26, 2003, in Los Angeles County Superior Court case no. YA053738, the People filed new charges against petitioner, alleging that between October and December 2002, petitioner committed four counts of a lewd act upon a child under the age of 14 in violation of P.C. § 288(a) and that more than one victim was involved within the meaning of P.C. § 667.61(b). CT 64-67. On July 29, 2003, in a bench trial, the court found petitioner guilty of three counts of violating P.C. § 288(a) and found it to be true that the crimes involved more than one victim within the meaning of P.C. § 667.61(b). CT 148-49. The trial court also determined petitioner had violated probation in case no. YA043048. Lodgment no. 5 at 3. The trial court sentenced petitioner to 15 years to life in state prison, and also ordered petitioner to serve the two-year sentence previously imposed in case no. YA043048. CT 250-54; Reporter's Transcript (Petition, Exh. T) at 335:28-336:28; Lodgment no. 5 at 3.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 255, which affirmed the judgment in an unpublished opinion filed August 18, 2005. Lodgment nos. 2-5. On September 7, 2005, petitioner sought rehearing from the California Court of Appeal, which denied rehearing on September 15, 2005. Lodgment nos. 6-7. On September 22, 2005, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied review on November 16, 2005. Lodgment nos. 8-9.
On June 10, 2005, while his appeal was pending, petitioner, proceeding pro se, filed a petition for habeas corpus relief in the Los Angeles County Superior Court, which denied the petition on July 25, 2005. Lodgment nos. 10-11. On November *1059 3, 2005, while his petition for review was pending, petitioner filed a habeas corpus petition in the California Court of Appeal, which, on March 7, 2006, denied the petition "for failure to state facts or provide exhibits demonstrating entitlement to relief[,]" with citation to People v. Duvall, 9 Cal.4th 464, 474-75, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995), People v. Pope, 23 Cal.3d 412, 424-26, 152 Cal.Rptr. 732, 590 P.2d 859 (1979), and People v. Madaris, 122 Cal.App.3d 234, 241-42, 175 Cal. Rptr. 869 (1981). Lodgment nos. 12-13. On March 22, 2007,[1] petitioner filed a petition for habeas corpus relief in the California Supreme Court, which denied the petition on August 29, 2007. Lodgment nos. 14-15; Lodgment no. 16, Exhibit.
On May 15, 2008, petitioner filed a second habeas corpus petition in the California Supreme Court, which denied the petition on October 28, 2008, with citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), and In re Miller, 17 Cal.2d 734, 112 P.2d 10 (1941). Lodgment no. 16; Opposition, Attachment J; In re Williams, California Supreme Court case no. S163686.
II
On May 25, 2008, petitioner, proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, and on October 24, 2008, respondent filed a motion to dismiss the petition, arguing it is untimely. On December 23, 2008, petitioner filed his opposition to the motion to dismiss.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir.2007), as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
* * *
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
The California Supreme Court denied petitioner's petition for review on November 16, 2005. After the California Supreme Court denied review, petitioner had the option of seeking a writ of certiorari from the United States Supreme Court. 28 U.S.C. § 1257. A writ of certiorari must be sought within ninety days after the California Supreme Court denies review. 28 U.S.C. § 2101(d); Rules of the *1060 Supreme Court of the United States, Rule 13. If the petitioner does not seek certiorari in the Supreme Court, the direct review process is over at the end of the ninety-day period. Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en banc); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Thus, for petitioner, the AEDPA's statute of limitations began to run on February 15, 2006, and expired on February 14, 2007, one year from when his state court judgment became final. Ibid. Here, the instant action was not filed until May 25, 2008more than one year after the statute of limitations had run.
However, this Court must consider whether the statute of limitations was statutorily tolled while petitioner's applications for collateral relief were pending in the California courts. Generally, "the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge[,]" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (footnotes omitted), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000), so long as the petitioner did not unreasonably delay in seeking collateral relief. Carey v. Saffold, 536 U.S. 214, 225, 122 S.Ct. 2134, 2141, 153 L.Ed.2d 260 (2002).
Here, petitioner filed his first habeas corpus petition in the Los Angeles County Superior Court on June 10, 2005, and it was denied on July 25, 2005before the judgment of his conviction became final; thus, the petition did not toll the statute of limitations, which had not yet begun to run. Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir.2008); see also Santiago v. Miller, 180 F.Supp.2d 471, 473 n. 2 (S.D.N.Y.2001) (since petitioner's first collateral attack "was filed and adjudicated before the AEDPA limitations period even began, ... it is not relevant" to determining whether petitioner's federal habeas petition was timely filed).
On November 3, 2005, petitioner filed his next habeas corpus petition in the California Court of Appealagain before his conviction became final. Nevertheless, since that petition was pending when the limitations period began to run on February 15, 2006, the statute of limitations was tolled from February 15, 2006, through the date the California Court of Appeal denied the habeas corpus petition on March 7, 2006. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001) ("[A] state habeas petition filed before the AEDPA statute of limitations begins to run tolls the limitation period" for the time in which the statute would have otherwise commenced running. (citation omitted; emphasis in original)), cert. denied, 538 U.S. 949, 123 S.Ct. 1627, 155 L.Ed.2d 492 (2003).
However, rather than promptly proceeding to the California Supreme Court for habeas relief,[2] petitioner waited more than one year, or until March 22, 2007, to file a habeas corpus petition in the California Supreme Court. This unreasonable delay,[3] which "is far longer than the *1061 `short period[s] of time,' 30 to 60 days, that most States provide" for filing a petition in a higher court, precludes "gap tolling" for the period between the California Court of Appeal's denial of petitioner's habeas corpus petition and the subsequent filing of a habeas corpus petition in the California Supreme Court. Evans v. Chavis, 546 U.S. 189, 201, 126 S.Ct. 846, 854, 163 L.Ed.2d 684 (2006); see also Waldrip, 548 F.3d at 738 ("Under Evans v. Chavis, the one-year federal limitations period runs is not tolledduring an unjustified delay of more than six months between the denial of habeas relief by a California state court and the filing of a subsequent petition in a higher California court."); Gaston v. Palmer, 447 F.3d 1165, 1166-67 (9th Cir.2006) (petitioner is not entitled to "gap" tolling for unexplained delays of 10 months, 15 months and 18 months between filings), cert. denied, 549 U.S. 1134, 127 S.Ct. 979, 166 L.Ed.2d 742 (2007). As such, the limitations period began to run on March 8, 2006, and expired one year later, on March 7, 2007. Since petitioner's two habeas corpus petitions to the California Supreme Court were filed after this date, they do not serve to toll or revive the limitations period. Jiminez, 276 F.3d at 482; Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000).
Nor is there any basis for this Court to equitably toll the AEDPA's statute of limitations. A habeas petitioner is entitled to equitable tolling "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation and internal quotation marks omitted); Espinoza-Matthews v. People of the State of Cal., 432 F.3d 1021, 1026 (9th Cir.2005). The petitioner bears the burden of proving: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418, 125 S.Ct. at 1814; Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006). Additionally, "the prisoner must show that the `extraordinary circumstances' were the but-for and proximate causes of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (citations and internal quotation marks omitted); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006), cert. denied sub nom., Belleque v. Kephart, 549 U.S. 1317, 127 S.Ct. 1880, 167 L.Ed.2d 386 (2007).
Here, petitioner claims he is entitled to equitable tolling covering the "time which was lost while [he was] waiting for the Supreme Court's answer to the motion [petitioner] sent on May 16, 2006." Opposition at 4. The Court disagrees. For the reasons detailed above, this claim is spurious, and the Court finds petitioner has not shown he acted diligently in filing his first habeas corpus petition in the California Supreme Court or that the time petitioner claims to have lost while waiting for the Supreme Court's response to his motion caused his untimeliness. Roy, 465 F.3d at 969; Spitsyn, 345 F.3d at 799.
The petitioner also claims he is entitled to equitable tolling due to frequent prison lockdowns in 2006 and 2007, but *1062 this claim is also unsupported by competent evidence and is grossly conclusory.[4]See, e.g., Trenkler v. United States, 268 F.3d 16, 25 (1st Cir.2001) (conclusory assertions rarely suffice to meet the burden of demonstrating entitlement to equitable tolling); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (denying equitable tolling when petitioner "provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims"), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). Similarly, petitioner's claim that he is entitled to equitable tolling because he had limited law library access, without supporting evidence and proof that limited access caused him to tardily file in the California Supreme Court, is insufficient to meet his burden. See, e.g., Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir.2008) ("[A] prisoner's limited access to the prison law library is not grounds for equitable tolling."); Ruiz v. Poole, 566 F.Supp.2d 336, 341 (S.D.N.Y.2008) (petitioner not entitled to equitable tolling for alleged lack of access to law library when he proffered no evidence supporting claim).
Finally, although an actual innocence claim[5] may constitute an "extraordinary circumstance" warranting equitable tolling under the AEDPA, see Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) ("[E]quitable tolling of the one-year limitations period based on a credible showing of actual innocence is appropriate."); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) ("Equitable tolling would be appropriate ... when a prisoner is actually innocent ...."), or act as an exception to the statute of limitations, see United States v. Zuno-Arce, 339 F.3d 886, 890 n. 5 (9th Cir.2003) (petitioner's actual innocence claim "is not in itself a constitutional claim, but would serve only to remove the timeliness bar so that claims may be heard on the merits"), cert. denied, 540 U.S. 1208, 124 S.Ct. 1483, 158 L.Ed.2d 132 (2004), "[t]o be credible, [an actual innocence] claim requires petitioner to support his allegations ... with new reliable evidence... that was not presented at trial" and "show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 865, 867, 130 L.Ed.2d 808 (1995); Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503, 140 L.Ed.2d 728 (1998); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003), cert. denied, 541 U.S. 998, 124 S.Ct. 2039, 158 L.Ed.2d 510 (2004); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002). Here, petitioner has neither presented nor identified any new evidence that could possibly support a claim of actual innocence. See Opposition at 7. Therefore, the habeas corpus petition is untimely and must be dismissed. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir.), cert. denied, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000); see also Sibley v. Culliver, 377 F.3d 1196, 1206 (11th Cir.2004) (Petitioner's "actual innocence claim is hindered at the outset by a fatal shortcominghe has not presented any actual evidence to the district court.").
*1063 RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; and (3) entering Judgment dismissing the petition and action as untimely.
JUDGMENT
IT IS ADJUDGED that the petition for writ of habeas corpus and the action are dismissed as untimely.
NOTES
[1] "Under the `prison mailbox rule' . . . a prisoner's. . . habeas petition is deemed filed when he hands it over to prison authorities for mailing in the district court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001) (citation omitted); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385, 101 L.Ed.2d 245 (1988). The "[mailbox] rule applies to prisoners filing habeas petitions in both federal and state courts." Huizar, 273 F.3d at 1223; Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001). Here, since petitioner signed the habeas corpus petition on March 22, 2007, the Court infers that is the date petitioner provided the petition to prison authorities for mailing to the Superior Court. Jenkins v. Johnson, 330 F.3d 1146, 1149 n. 2 (9th Cir.2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
[2] "Typically, a California petitioner brings a petition for a writ of habeas corpus in the state's Superior Court. If it is denied, the petitioner will assert claims, most commonly the same ones, in a new petition in the California Court of Appeal. If the Court of Appeal denies the petition, he will assert claims in yet another new petition in, or petition for review by, the California Supreme Court." Biggs v. Duncan, 339 F.3d 1045, 1046 (9th Cir.2003); Delhomme v. Ramirez, 340 F.3d 817, 818-19 (9th Cir.2003) (per curiam).
[3] Petitioner attempts to explain this lengthy delay by stating "he had to learn how to execute pro-per litigation techniques." Opposition at 3. This explanation is unpersuasive, however, since petitioner had previously filed pro se habeas corpus petitions in the Los Angeles County Superior Court and California Court of Appeal. See Lodgment nos. 10, 12. Similarly, petitioner's claim that he mailed a motion to dismiss to the California Supreme Court on May 16, 2006, provides no basis for "gap tolling" since, initially, petitioner has presented no competent evidence demonstrating this occurred and, moreover, the motion, as petitioner describes it, see Opposition. Attachments B, I at 75, sought dismissal without prejudice of petitioner's habeas corpus petition in the California Court of Appeal, see Opposition, Attachment B, which had already denied the petition. Id. Therefore, petitioner has provided no reasonable explanation for his delay in filing his habeas corpus petition in the California Supreme Court, and he is not entitled to "gap tolling."
[4] Although petitioner lists alleged prison lockdown dates, see Opposition, Attachment I at 75, he has provided no competent evidence supporting this list and has not demonstrated how the lockdowns prevented him from timely filing his habeas corpus petition in the California Supreme Court.
[5] "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir.2007); Souter, 395 F.3d at 590.
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66 So.3d 303 (2011)
ROSS
v.
WARREN.
No. SC11-1300.
Supreme Court of Florida.
June 30, 2011.
DECISION WITHOUT PUBLISHED OPINION
Review dismissed.
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49 B.R. 118 (1985)
In re KENTUCKY THREADED PRODUCTS, INC., Debtor.
Bankruptcy No. 3-83-00988(B).
United States Bankruptcy Court, W.D. Kentucky.
March 14, 1985.
*119 John P. Reisz, Louisville, Ky., for debtor.
James C. Mauch, Lexington, Ky., for Coupling Nut Supply.
David J. Walker, Louisville, Ky., for Unsecured Creditor's Committee.
MEMORANDUM-OPINION
G. WILLIAM BROWN, Bankruptcy Judge.
This matter comes before the Court on application of the creditor, Coupling Nut Supply, for reimbursement of attorneys fees and expenses in the amount of $4,796.75.
This petition for Chapter 11 relief was filed May 13, 1983 with this creditor scheduled as an unsecured creditor in the amount of $31,250.00. Coupling was thereafter appointed and served as a member of the Creditors Committee.
Shortly after the filing of this petition, Coupling, through its attorney, initiated an investigation of the debtor, including a deposition of debtor's president, to discover the nature of certain pre-petition transactions. Central to this inquiry was an alleged bonus or payment made to the debtor's president, in the period immediately preceding the request for Chapter 11 relief. Thereafter, a negotiated settlement of these issues was achieved between the Creditors Committee and the debtor's president whereby the sum of approximately $5,000.00 was paid into the estate.
Coupling here seeks reimbursement for its individual fees and expenses incurred, alleging its efforts benefited the estate and all creditors.
For the reasons hereinafter set forth, the application of Coupling Nut Supply for reimbursement of attorney fees and expenses incurred is denied.
Coupling justifies this petition on the basis that its investigative efforts ultimately resulted in an asset and benefit to the estate. The benefit solely resulting from Coupling's efforts, however, can not be precisely determined. The "asset" was ultimately determined by negotiated settlement through the Creditors Committee and other interested parties. The "asset" value is $5,000.00, while the reimbursement sought totals $4,796.75. Administrative expenses for the Creditors Committee's counsel have previously been approved without objection for approximately $3,500.00.
At no time prior to the incurring of the expenses here sought to be reimbursed was application to employ professionals made by Coupling to this Court. It is well settled that pursuant to Sections 503(b)(3)(B) and (b)(4), a creditor can be compensated from the estate for attorney fees incurred only after first seeking court approval for the activity to be conducted. Matter of Spencer, 35 B.R. 280 (N.D.Ga. 1983). While there is authority that counsel who renders services in good faith but through oversight has failed to obtain a prior court order approving the employment may, thereafter, be compensated pursuant to an Order nunc pro tunc, this *120 equitable discretion should be exercised only under unusual circumstances. Matter of Triangle Chemicals, Inc., 697 F.2d 1280 (5th Cir.1983). See also, In re Bear Lake West, Inc., 32 B.R. 272 (D.Ida.1983).
It is further noted that Coupling was a member of the Creditors Committee at or about the time it unilaterally proceeded to initiate its investigation and could have, and should have, operated under the auspices of the Committee to achieve the same end results. The "asset" or benefit derived by the estate resulted from a negotiated settlement of the disputed issues, the parties to the settlement being the Creditors Committee (Coupling being a member thereof) and other interested parties. The extent, if any, to which Coupling's sole efforts resulted in an enhancement of the estate cannot and has not been established specifically.
As noted in In re Sapolin Paints, Inc., 38 B.R. 807 (E.D.N.Y.1984), the factors relied upon by the Court in exercising its discretion relative to such application includes, without limitation, (1) nature of services rendered; (2) difficulties and complexities encountered; (3) time necessarily expended; (4) results achieved; (5) burden the estate can safely bear; (6) size of the estate; (7) duplicity of services; (8) professional standing, ability, and experience of applicant; and (9) fairness to each applicant. In re Sapolin Paints, Inc., supra, further holds that professional services rendered, if not previously authorized, are not compensable even though the services may have benefited the estate and were performed in good faith.
It is further the opinion of the Court that even if the "asset" was derived solely from Coupling's efforts, the petition for reimbursement is disproportionate to the results achieved. Accordingly, the Court finds that the authorization for the employment of the professionals now sought to be compensated was neither sought nor approved by this Court; that the results achieved are unable to be determined with specificity; that there was duplicity of services, compensation having previously been authorized to counsel for the Creditors Committee who actually participated in the negotiated settlement; that the benefit derived by the estate is disproportionate to the reimbursement now petitioned.
While objection to the reimbursement sought by Coupling has been objected to by the debtor, this Court notes that the lack of an objection to a fee request does not affect the Court's duty to fix reasonable compensation, and the burden is on counsel to establish reasonableness. In re Hamilton Hardware Co., 11 B.R. 326 (E.D.Mich.1981). Simply stated, Coupling has failed to sustain its burden as to the entitlement or reasonableness of the reimbursement.
The above constitutes Finding of Fact and Conclusions of Law pursuant to Rules of Bankruptcy Procedure 7052 and a separate Order will be entered this date.
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566 S.E.2d 759 (2002)
Janice F. DILDY, Employee, Plaintiff,
v.
MBW INVESTMENTS, INC., Employer, Zenith Insurance Company, Carrier, Defendants.
No. COA01-510.
Court of Appeals of North Carolina.
August 6, 2002.
*761 Ralph G. Willey, P.A., by Ralph G. Willey, III, Rocky Mount, for plaintiff-appellant.
Morris York Williams Surles & Barringer, LLP, by C. Michelle Sain, Charlotte, for defendant-appellees.
CAMPBELL, Judge.
Janice Dildy ("plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission") denying her claim for disability benefits under the Workers' Compensation Act ("the Act") for injuries she received at her place of employment when she was shot by her former boyfriend. We affirm.
In June 1996, plaintiff was employed as a cashier at an Amoco gas station and convenience store in Wilson, North Carolina, owned by MBW Investments, Inc. ("defendant-employer"). Plaintiff was responsible for operating the store's cash register, which primarily involved ringing up sales of gasoline and merchandise. The store also had a food counter which was generally manned by a different employee than the one operating the main customer counter and register.
Prior to her employment with defendantemployer, plaintiff had lived with her boyfriend, Vernon Farmer ("Farmer"). Due to the abusive nature of their relationship, plaintiff left Farmer in late 1995. Following the couple's separation, Farmer began threatening plaintiff. In March 1996, plaintiff was seen by a psychiatrist and a therapist for depression and anxiety caused by her fear of being attacked by Farmer. Plaintiff was advised to call the police and initiate legal action. Plaintiff subsequently obtained a restraining order against Farmer, but he continued to harass and threaten her. In early May 1996, plaintiff was voluntarily admitted to the psychiatric unit of a local hospital as a result of the anxiety caused by her fear of Farmer. Finally, on 18 June 1996, plaintiff reported to her psychiatrist that Farmer had blown up her current boyfriend's truck. Plaintiff's psychiatrist recommended that she consider relocating.
Despite the violent nature of their relationship and the fact that Farmer continued to threaten and harass her, plaintiff did not tell her co-workers or supervisors about her relationship with Farmer.
On 21 June 1996, Farmer came into the convenience store while plaintiff was working. Plaintiff was unaware of his presence in the store until he placed a six-pack of beer on the counter. After paying for the beer, Farmer forcefully threw the six-pack at plaintiff, hitting her in the chest. Farmer then left the store. Plaintiff, frightened by Farmer's attack, began repeatedly exclaiming that Farmer was going to come back to the store to kill her. Plaintiff asked Ronnie Braziel ("Braziel"), the store supervisor on duty at the time, to call the police. Braziel told plaintiff to put the beer back in the beer cooler and to continue waiting on customers. As plaintiff continued working, she repeatedly asked Braziel to call the police because she was scared that Farmer would come back to the store to kill her. Braziel told plaintiff that Farmer would not be back and refused to honor plaintiff's requests to call the police.
Several minutes later, Farmer telephoned the store and plaintiff answered. Farmer threatened to come back to the store to kill plaintiff if she hung up the phone. Plaintiff reported this threat to Braziel while she was still on the phone with Farmer. Plaintiff asked Braziel to call the police or allow her to leave the store. Braziel refused plaintiff's request and told her to hang up the phone and resume waiting on customers. Approximately *762 twenty minutes after he had first entered the store, Farmer returned with a handgun. Farmer walked up to the counter and shot at plaintiff three times, hitting her once in the right hand and once in the leg. Farmer later pled guilty to assault with a deadly weapon inflicting serious injury.
Plaintiff filed a claim for workers' compensation benefits for the injuries she received as a result of the shooting. Plaintiff's claim was denied by defendants. Prior to hearing, the parties stipulated that the provisions of the Act controlled the action, that an employer-employee relationship existed between plaintiff and defendant-employer, that defendant insurance company was the carrier, and that plaintiff had started missing time from work due to an injury sustained on or about 21 June 1996.
Plaintiff's claim was heard by a Deputy Commissioner on 10 August 1999. On 12 May 2000, the Deputy Commissioner entered an opinion and award denying plaintiff's claim. The Deputy Commissioner found that Farmer's assault on plaintiff was entirely personal to her and had nothing to do with her employment. However, the Deputy Commissioner did find that the employment contributed to the assault on plaintiff to some degree in that plaintiff's supervisor, knowing of the threats being made by Farmer, instructed plaintiff to continue working and did not call the police, thereby failing to take an opportunity to reduce the risk. Nonetheless, the Deputy Commissioner concluded that the risk of assault was not attributable to the employment and that plaintiff's injuries did not arise out of her employment.
Upon appeal by plaintiff, the Full Industrial Commission upheld the denial of benefits to plaintiff. Commissioner Christopher Scott filed a dissenting opinion expressing his belief that the failure of plaintiff's supervisor to call the police directly increased the already known risk of assault facing plaintiff. Plaintiff appeals, arguing that the Commission erred in concluding that the shooting did not arise out of her employment. Defendants cross-assigned error to certain findings of fact made by the Commission. Due to our resolution of plaintiff's contentions on appeal, we need not consider defendants' cross-assignments of error.
In order to be compensable under the Act, an injury must result from an accident arising out of and in the course of employment. N.C. Gen.Stat. § 97-2(6) (2001); Hemric v. Manufacturing Co., 54 N.C.App. 314, 316, 283 S.E.2d 436, 438 (1981). In reviewing an opinion and award of the Industrial Commission, this Court's review is limited to a determination of whether the Commission's findings of fact are supported by any competent evidence and whether the Commission's conclusions of law are supported by such findings of fact. Bailey v. Sears Roebuck & Co., 131 N.C.App. 649, 652, 508 S.E.2d 831, 834 (1998). However, the determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and this Court may review the record to determine whether the findings and conclusions are supported by sufficient evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).
Within the meaning of the Act, an accident is an unlooked for and untoward event which is not expected or designed by the employee and which interrupts the employee's normal work routine and introduces unusual conditions likely to result in unexpected consequences. Hensley v. Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957). An assault may be an accident within the meaning of the Act when it is unexpected and without design on the part of the employee who suffers from it. Gallimore, 292 N.C. at 402, 233 S.E.2d at 531; see also Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972). The phrase "in the course of the employment" refers to the time, place and circumstances under which an accidental injury occurs. Robbins, 281 N.C. at 238, 188 S.E.2d at 353. In the instant case, plaintiff was shot, without design on her part, during working hours while performing her duties as an employee on the premises of the employer. Thus, plaintiff's injuries were the result of an injury by accident occurring during the course of employment. Accordingly, the only issue presented by this appeal is whether the shooting that injured plaintiff arose out of her employment with defendantemployer.
*763 The phrase "arising out of the employment" refers to the origin or causal connection of the accidental injury to the employment. See, e.g., Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976). "[T]he controlling test of whether an injury `arises out of' the employment is whether the injury is a natural and probable consequence of the nature of the employment." Gallimore, 292 N.C. at 404, 233 S.E.2d at 532-33. An injury "arises out of the employment" if a contributing proximate cause of the injury is a risk to which the employee was exposed because of the nature of the employment, and to which the employee would not have been equally exposed apart from the employment. Roberts v. Burlington Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 423 (1988). "This risk must be such that it `might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment.'" Gallimore, 292 N.C. at 404, 233 S.E.2d at 533 (quoting Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 195 (1973)). "[The] causative danger must be peculiar to the work and not common to the neighborhood." Id. (quoting Harden v. Furniture Co., 199 N.C. 733, 735, 155 S.E. 728, 730 (1930)). This test has been referred to as the "increased risk" analysis, and focuses on whether the nature of the employment creates or increases a risk to which the employee is exposed. Roberts, 321 N.C. at 358, 364 S.E.2d at 422. This "increased risk" analysis is different from the "positional risk" doctrine, "which holds that `[a]n injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of employment placed claimant in the position where he was killed.'" Id. (quoting 1 A. Larson, The Law of Workmen's Compensation § 6.50 (1984)). Our Supreme Court has chosen to follow and apply the "increased risk" analysis instead of relying on the more liberal "positional risk" doctrine. Id. (applying "increased risk" analysis in overruling a lower court decision which was based on application of the "positional risk" doctrine).
In Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972), our Supreme Court was faced with facts similar to those in the case sub judice. In Robbins, the claimants were the survivors of two deceased employees of a grocery store. The estranged husband of one of the employees entered the store and shot his wife and a co-employee. The shootings had their origin in the husband's alcoholism and the domestic problems between him and his wife. The husband was jealous, had accused his wife of "running around" with her co-employee, and had gone to the store and threatened to kill them. He had also threatened to kill her employer if he continued to employ her. The Court reversed the Industrial Commission's award of benefits to the claimant-survivors, concluding that the risk of assault by the estranged husband was a personal risk the wife brought to the grocery store, and not one "occasioned by, incident to, or a condition of her employment." Id. at 241, 188 S.E.2d at 355. The Court further held that the employer "was under no duty to discharge [the wife] merely because her husband demanded he do so and... retaining her as an employee did not make the risk that [her husband] would assault her or one of her fellow employees a risk arising out of the nature of the employment." Id. Thus, the Court held that the assaults on the decedents were not accidents arising out of their employment. Id. at 242, 188 S.E.2d at 356.
In Hemric v. Manufacturing Co., 54 N.C.App. 314, 283 S.E.2d 436 (1981), this Court was faced with a factual situation similar to both Robbins and the instant case. In Hemric, the claimant was shot by the boyfriend of one of his co-workers. Prior to the shooting, the co-worker had talked freely with the claimant and her other co-workers about the volatile and sometimes violent nature of her relationship with her boyfriend. When the co-worker tried to end the relationship, the boyfriend began threatening her and making harassing phone calls to her during business hours. Several days before the shooting, the boyfriend placed an obscene message about the co-worker on the front door of the business. As a result, several of the employees at the business feared for their personal safety from the boyfriend.
After repeated complaints that the coworker was not adequately performing her *764 job, and due to growing concerns that the boyfriend of the co-worker might cause some harm, the employer decided to fire the coworker. The claimant was asked by his supervisor to keep a record of the co-worker's working hours so that the employer could use her tardiness as justification for firing her.
The claimant arrived at work the day of the shooting at 8:05 a.m. It was the claimant's custom to arrive at the office in the morning and then go to the post office to pick up the mail for the defendant-employer. However, since the claimant was keeping track of his co-worker's working hours, he remained at his desk until the co-worker's arrival at 8:25 a.m. Upon the arrival of the co-worker, the boyfriend appeared from a hiding place in the office and fired three rifle shots at the co-worker, killing her. Before the boyfriend fled, he also shot the claimant four times, seriously injuring him.
The claimant in Hemric argued that, had it not been for his supervisor's instructions to keep a record of the co-worker's hours, the claimant would have been at the post office and not at the office at the time of the shooting. The Court affirmed the Commission's denial of benefits to the claimant, concluding that the shooting of the claimant, just like the shootings of the employees in Robbins,
occurred on the premises not because the victim was performing the duties of employment at the time of the assault, but merely because he was present on the premises. The serious injuries which plaintiff sustained were caused by the vicious and unreasoned criminal act of Williams, not by an accident arising out of plaintiff's employment.
Hemric, 54 N.C.App. at 318, 283 S.E.2d at 439.
Robbins and Hemric are authority for the principle of law "that an injury is not compensable when it is inflicted in an assault upon an employee by an outsider as the result of a personal relationship between them, and the attack was not created by and not reasonably related to the employment." Id. at 318, 283 S.E.2d at 438-39. "This is true even though the employee was engaged in the performance of his duties at the time, for even though the employment may have provided a convenient opportunity for the attack it was not the cause." Robbins, 281 N.C. at 240, 188 S.E.2d at 354. For an injury inflicted in an assault by an outsider to be compensable, "[t]he assault must have had such a connection with the employment that it can be logically found that the nature of the employment created the risk of the attack." Hemric, 54 N.C.App. at 318, 283 S.E.2d at 439.
In the instant case, the evidence tends to show that plaintiff and Farmer were involved in an abusive relationship. Following their breakup, Farmer began threatening to harm plaintiff. After plaintiff obtained a restraining order against him, Farmer continued to threaten and harass her. The fact that Farmer blew up plaintiff's current boyfriend's truck further illustrates the danger posed by Farmer to plaintiff and those associated with her. Thus, Farmer's assault on plaintiff at the convenience store was entirely unrelated to the nature of plaintiff's employment; it did not stem from the type of work plaintiff was required to do for defendantemployer. It was a personal risk that plaintiff brought with her from her domestic and private life and the motive that inspired the assault "was likely to assert itself at any time and in any place." Harden v. Furniture Co., 199 N.C. 733, 736, 155 S.E. 728, 730 (1930).
Plaintiff argues that the case sub judice is distinguishable on its facts from Robbins and Hemric in that in the case before us defendant-employer, through the supervisor on duty at the store when plaintiff was shot (Braziel), had knowledge of an outside peril that immediately endangered plaintiff, had an opportunity to protect plaintiff from this outside peril, and failed to act appropriately to reduce or eliminate the risk of peril, thereby making the assault a risk incident to the employment. However, in Hemric, this Court stated:
Where the employee is injured in the course of employment by an outsider because of hate, jealousy, or revenge based on a personal relationship, the fact that the employer has knowledge of prior threats of death or bodily harm does not result in the injury's arising out of the employment. *765 Hemric, at 318, 283 S.E.2d at 439. Under the circumstances present here, Braziel was under no duty to call the police or let plaintiff leave the store merely because a customer had thrown beer at her and she had expressed fear that the customer would return to kill her. Braziel knew nothing about the nature of plaintiff and Farmer's relationship and had no basis for understanding and appreciating the seriousness of the threat posed by Farmer. The fact that Braziel failed to call the police and refused to let plaintiff leave the store did not make the risk that Farmer would come back and assault plaintiff a risk arising out of the nature of the employment. See Robbins, 281 N.C. at 241, 188 S.E.2d at 355. While we agree with the Commission that the conduct of Braziel contributed in some degree to plaintiff being shot while performing her job duties in the store, the fact that Braziel did not take plaintiff seriously when she warned that Farmer would come back to the store to kill her was not a risk arising out of the nature of plaintiff's employment.
Plaintiff further argues that the Supreme Court's decision in Wilson v. Boyd & Goforth, Inc., 207 N.C. 344, 177 S.E. 178 (1934), compels the conclusion that the shooting of plaintiff in the instant case arose out of her employment. In Wilson, the plaintiff-employee was rubbing down the wall of a septic tank in the regular course of his employment and in the presence of his foreman. An intoxicated co-employee who worked in another department for the defendant-employer came and sat down beside the foreman who was supervising plaintiff's work. The foreman instructed the plaintiff not to use so much water on the wall of the septic tank. The co-employee then got up and went over to the plaintiff and starting cursing at him. The plaintiff said nothing in response. The co-employee then picked up a claw-hammer and hit the plaintiff on the hip. The plaintiff came down off his scaffold and the co-employee came after him. The two men threw rocks and sticks back and forth at one another. The plaintiff then resumed his work, but the co-employee kept after him. Finally, the plaintiff fell off the edge of the septic tank and broke his leg in an attempt to get away from the co-employee. The Court affirmed the Industrial Commission's conclusion that "there is a causal connection between the plaintiff's employment in this case and the injury he sustained." Id. at 347, 177 S.E. at 179-80.
The facts of the case sub judice are readily distinguishable from those in Wilson. In Wilson, the assault on the plaintiff was directly related to his employment in that the perpetrator of the assault was not a complete outsider, but rather a co-employee, and the origin of the assault lay in the perceived ineffective manner in which the plaintiff was performing his employment. Here, plaintiff was assaulted by a complete outsider to her employment, and the risk of the assault lay in the domestic problems between plaintiff and the perpetrator and not in the nature of her employment. Thus, Wilson is not controlling.
In sum, notwithstanding the events at the convenience store on the day of the shooting, the risk to plaintiff that her former boyfriend would shoot her was not one which a rational mind would anticipate as incident to her employment with defendant-employer. The risk that her boyfriend would carry out his previous threats against her was a hazard common to the neighborhood and not peculiar to her employment; it was independent of the relation between employer and employee.
Although "[t]he Workers' Compensation Act `should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation,'" Roberts v. Burlington Industries, 321 N.C. 350, 359, 364 S.E.2d 417, 423 (1988) (quoting Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E.2d 596, 599 (1955)), "the rule of liberal construction cannot be employed to attribute to a provision of the Act a meaning foreign to the plain and unmistakable words in which it is couched." Id. (quoting Henry v. Leather Co., 231 N.C. 477, 480, 57 S.E.2d 760, 762-63 (1950)). "The Act was not intended to establish general insurance benefits." Id. To grant compensation in the instant case would effectively remove the "arising out of the employment" requirement of the Act. Id. at 360, 364 S.E.2d at 424.
*766 Accordingly, we find that the evidence was sufficient to support the Commission's findings of fact and that these findings support the Commission's denial of plaintiff's claim for workers' compensation benefits since plaintiff's injury did not arise out of her employment.
Affirmed.
Judges GREENE and McGEE concur.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1922
___________
Dale J. Burke, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
North Dakota Department of *
Corrections and Rehabilitation; * [PUBLISHED]
Medcenter One, *
*
Appellees. *
___________
Submitted: June 20, 2002
Filed: June 25, 2002 (Corrected: July 15, 2002)
___________
Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
North Dakota inmate Dale J. Burke brought an action under 42 U.S.C. § 1983
and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. He
alleged that the North Dakota Department of Corrections and Rehabilitation
(NDDCR) and Medcenter One, its medical-services contractor, denied him treatment
for his hepatitis C. After Mr. Burke filed an amended complaint (seeking to add two
defendants and cure potential pleading deficiencies), the district court--upon
28 U.S.C. § 1915A review--dismissed the action without prejudice for failure to state
a claim. Mr. Burke appeals. Having reviewed the record de novo and construed the
pro se complaint liberally, see Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th Cir.
1996) (per curiam), we affirm in part and reverse in part.
Initially, we note that Mr. Burke has abandoned his appeal as to the ADA
claims by failing to address them in his brief. See Etheridge v. United States,
241 F.3d 619, 622 (8th Cir. 2001).
As to the section 1983 claims against NDDCR, we believe Mr. Burke alleged
more than a disagreement over the proper course of treatment for his hepatitis C: he
alleged that he was denied treatment entirely; that NDDCR’s medical director (whom
he sought to add as a defendant in his amended complaint) prevented him from being
seen by doctors; and that she was using her position to block his treatment because
of his prior lawsuits against her. See Terrance v. Northville Reg’l Psychiatric Hosp.,
286 F.3d 834, 843 (6th Cir. 2002) (when need for treatment is obvious, medical care
which is so cursory as to amount to no treatment at all may amount to deliberate
indifference); Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990) (grossly incompetent
or inadequate care can constitute deliberate indifference; medical care so
inappropriate as to evidence intentional maltreatment or refusal to provide essential
care violates Eighth Amendment); cf. Estelle v. Gamble, 429 U.S. 97, 107 (1976)
(where medical personnel saw inmate 17 times in 3 months and treated back strain
with bed rest, muscle relaxants, and pain relievers, their failure to x-ray his broken
back or implement other diagnostic techniques or treatment was not deliberate
indifference). Thus, Mr. Burke’s action should have been allowed to proceed against
NDDCR for relief other than monetary damages.
We believe Mr. Burke also stated a section 1983 claim against Medcenter One:
he alleged that its hepatitis C treatment protocol and its doctors’ complicity with the
actions of NDDCR’s medical director were damaging his health in violation of his
-2-
Eighth Amendment rights. See Sanders v. Sears, Roebuck & Co., 984 F.2d 972,
975-76 (8th Cir. 1993) (corporation acting under color of state law is liable under
§ 1983 for its own unconstitutional policies; proper test is whether there is policy,
custom, or action by those who represent official policy that inflicts injury actionable
under § 1983); Johnson v. Lockhart, 941 F.2d 705, 707 (8th Cir. 1991) (abdication
of policy-making and oversight responsibilities can reach level of deliberate
indifference and result in unnecessary and wanton infliction of pain to prisoners when
tacit authorization of subordinates’ misconduct causes constitutional injury). At this
point, we cannot say beyond doubt that Mr. Burke will be unable to prove any set of
facts in support of his claim which would entitle him to relief. See Conley v. Gibson,
355 U.S. 41, 45-46 (1957) (standard for dismissing complaint for failure to state
claim); Dace v. Solem, 858 F.2d 385, 388 (8th Cir. 1988) (per curiam) (because
§ 1983 complaint was dismissed before discovery, there was no way to assess
seriousness of inmate’s medical condition or necessity of treatment).
Accordingly, we affirm the judgment as to the ADA claims, and we reverse the
dismissal of the section 1983 claims and remand for further proceedings, which
should include reconsideration of the amended complaint.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
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40 Wis.2d 649 (1968)
162 N.W.2d 618
SCHMIDT, Respondent,
v.
SCHMIDT, Appellant.
No. 38.
Supreme Court of Wisconsin.
Argued October 29, 1968.
Decided November 26, 1968.
*652 For the appellant there was a brief and oral argument by John E. McCormick, attorney, and Henry A. Tessmer of counsel, both of Milwaukee.
For the respondent there was a brief and oral argument by Walter J. Steininger of Milwaukee.
BEILFUSS, J.
The husband on this appeal does not challenge the finding of cruel and inhuman treatment nor the award of the divorce to the wife. He contends that the provisions for division of estate, alimony, support money, attorneys' fees and the minor's clothing bill should be set aside.
During the various stages of the litigation and until the judgment was entered in the trial court the husband was represented in all or some phases of the proceedings by three attorneysMr. Richard D. Kaestner, Mr. Roland Steinle, Jr., and Mr. Robert Beaudry. A fourth attorney represented him on a motion to review the findings and in this appeal.
The husband's principal contention is that the parties did not enter into a binding stipulation, that the finding of a net worth of $200,000 is not supported by the evidence, *653 and that the award for attorneys' fees should be set aside.
It is apparent from an examination of the record that the parties, their respective attorneys, and the trial judge had an extensive in camera discussion of the value of the property of the parties and the attorneys' fees.
The property of the parties consisted chiefly of two separate homes, one occupied by the wife and the daughter and the other by the husband and the son; a lake cottage; a beer and liquor depot; and 29 other separate parcels of real estate plus additional personal property. Most of the real estate was encumbered to some degree by real estate mortgages. Both parties had appraisals made and these written appraisals are a part of the record as exhibits. The husband's appraisal was higher than the $200,000 net value found by the court and the wife's slightly lower.
Faced with this array of property it is understandable why the trial court endeavored to have the parties agree upon the net value of the assets if they could. In camera discussion of the value of the property of the parties is not uncommon and is a desirable practice to resolve sometimes difficult issues in a manner satisfactory to the parties. However, if an agreement or a stipulation is reached the attorneys and the trial court must make an effort to have the agreement adequately reflected in the record.
Sec. 269.46 (2), Stats., provides:
"No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney."
Stipulations in divorce actions are in the nature of a contract. Estate of Boyd (1963), 18 Wis. 2d 379, 118 N. W. 2d 705. And oral stipulations made in open court *654 during trial, taken down by the reporter and acted upon by the parties and the court are valid and binding. Baker Land & Title Co. v. Bayfield County Land Co. (1918), 166 Wis. 601, 166 N. W. 314; Pasternak v. Pasternak (1961), 14 Wis. 2d 38, 109 N. W. 2d 511; Czap v. Czap (1955), 269 Wis. 557, 69 N. W. 2d 488. The discretion of the trial court to relieve parties from stipulations when improvident or induced by fraud, misunderstanding or mistake, or rendered inequitable by the development of a new situation, is a legal discretion to be exercised in the promotion of justice and equity, and there must be a plain case of fraud, misunderstanding or mistake to justify relief. Illinois Steel Co. v. Warras (1909), 141 Wis. 119, 123 N. W. 656.
We are of the opinion that there is ample evidence in the record to support the trial court's finding that the parties stipulated and agreed that the net value of the property of the parties was $200,000, and that $15,000 of this sum was to be deducted and awarded as attorneys' fees, leaving a balance of $185,000 to be divided between the parties.
Appellant-husband contends that the property awarded to the wife was excessive because appellant acquired these assets with only slight contribution on the part of the respondent-wife.
The guidelines in property division cases were restated in Radandt v. Radandt (1966), 30 Wis. 2d 108, 113, 140 N. W. 2d 293:
"While the division of estate in a divorce action is peculiarly within the discretion of the trial court, this court has repeatedly laid down the guideline that in general a third of the estate is a liberal allowance to the wife subject to be increased or decreased according to special circumstances. In Kronforst v. Kronforst we set forth four factors which would warrant granting an award of more than one third to the wife. These are a long period of marriage, complete lack of any separate estate in the wife coupled with her inability to support herself, low award of permanent alimony, and breakup of marriage due to husband's wrongful conduct."
*655 In the instant case the lower court awarded a fraction under a third of the net estate. The parties have been married since May of 1935. Both are fifty-three years of age. The respondent has no separate estate of her own, and the trial court found that at the time of the trial the respondent was not in good health and required and was receiving medical attention and care. Prior to 1960, respondent-wife worked extensively in one or another of the businesses owned and operated by the parties, including a beauty shop and dairy bar. Since 1954 respondent has been working on the books of their beer depota matter of three hours a week.
The breakup of the marriage was due to appellant's wrongful conduct. The trial court found him guilty of: cruel and inhuman treatment, consisting of association with another woman; harsh and dictatorial conduct; unjust belittlement; unreasonable handling of the financial affairs; and unreasonable absences.
The award of $61,000 to the wife was slightly less than one-third of the property. Clearly this award does not reflect an abuse of discretion on the part of the trial court.
The appellant-husband argues that he was required to pay all of the wife's attorney's fees and that the fee is excessive. He was not in fact required to pay the entire attorney's fee. The entire fee for the attorneys for both parties was deducted from the net estate and the balance was then divided by the court for the property division.
Not only do we conclude that the parties agreed to the attorneys' fees, from our review of the record this allowance appears reasonable and, in any event, no abuse of discretion by the trial court has been shown.
Appellant argues that support payments are too high because the minor daughter, Dorian, had a job. This job, however, was a part-time one and brought in very little money that could be used for support.
At the trial respondent-wife testified that Dorian wanted to go to school but respondent did not know *656 where. Later, Dorian enrolled in a nonaccredited trade school. Appellant suggests that this is a ruse to disguise respondent's need for alimony.
There is, in fact, very little in the record to indicate what the financial needs of the daughter actually are. It is evident that she is not self-supporting and lives at home. This in itself appears sufficient to justify the award. Appellant has not set forth any reason why the award was too high. It appears, therefore, that the trial court did not abuse its discretion.
Appellant-husband's final contention is that the trial court abused its discretion in ordering appellant to hold the respondent harmless in any claim of Gimbels-Schusters that the daughter incurred after the commencement of the action.
The daughter, Dorian, was at the commencement of the action, eighteen years of age and attended Patricia Stevens, taking a course in fashion buying. After this action commenced, Dorian purchased $570 worth of clothing and charged the same to the appellant without his knowledge or consent. Appellant contends that because he no longer had custody or supervision he should not be required to pay these bills.
The record shows, however, that the clothes were purchased over a period in excess of one year and were purchased to replace clothes worn in high school which were now too small and unsuitable. The purchases included other items, such as makeup and other personal items. Furthermore, appellant was not unaware of Dorian's interest in fashions. Though unhappy about some of the previous purchases, appellant nonetheless paid them. In fact, he gave Dorian $235 so that she could purchase a gown and swimsuit to wear in the Miss West Allis Contest. Further, the husband took the daughter on a pleasure trip to Florida during the pendency of the action. *657 As between the husband and wife we cannot conclude it was an abuse of discretion for the trial court to order that the husband hold the wife harmless as to this obligation.
By the Court.Judgment affirmed.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5184
_____________________________
B. S.,
Appellant,
v.
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Michael G. Allen, Judge.
June 15, 2018
PER CURIAM.
AFFIRMED.
B.L. THOMAS, C.J., and MAKAR and WINSOR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jason Zandecki, Palm Harbor, for Appellant.
Sarah J. Rumph, Children’s Legal Services, Tallahassee, Morgan
Lyle Weinstein, Weinstein Law, P.A., Hollywood, and Thomasina
Moore, Guardian ad Litem Program, Sanford, for Appellee.
2
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} |
698 F.2d 1235
Wongv.Puglisi
81-5412
UNITED STATES COURT OF APPEALS Ninth Circuit
12/10/82
1
C.D.Cal.
AFFIRMED
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54 F.Supp.2d 817 (1999)
Robert TUTMAN, Plaintiff,
v.
WBBM-TV/CBS INC., Defendant.
No. 96 C 4424.
United States District Court, N.D. Illinois, Eastern Division.
April 29, 1999.
*818 *819 Yvonne Owens, Owens and Associates, Chicago, IL, for plaintiff.
Linda L. Listrom, Debbie L. Berman, Jenner & Block, Chicago, Illinois, for defendant.
ORDER
BUCKLO, District Judge.
The court has conducted a de novo review of both the factual findings and legal analysis of Magistrate Judge Denlow's Report and Recommendation. The court agrees with Judge Denlow's well reasoned and thorough analysis and therefore adopts the Report dated March 30, 1999 in its entirety. Accordingly, defendant's motion for summary judgment on all claims [69-1] is granted and judgment is entered in favor of defendant, CBS and against plaintiff. Any pending motion in this case is terminated as moot. Status hearing set for 4/30/99 is vacated.
*820 REPORT AND RECOMMENDATION
MORTON DENLOW, United States Magistrate Judge.
Robert Tutman ("Plaintiff" or "Tutman") instituted this action against WBBM-TV/CBS Inc. ("Defendant" or "CBS") and an employee of Defendant, Robert Vasilopulos ("Vasilopulos"). Counts I and II involved state law tort claims directed at Vasilopulos which were previously dismissed. Count III is directed solely at Defendant and charges it with violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Count III includes three claims: a retaliation claim, a hostile work environment claim, and a constructive discharge claim. Defendant now brings a motion for summary judgment on Count III arguing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. For the following reasons the Court recommends that Defendant's motion for summary judgment be granted because the facts viewed in the light most favorable to the Plaintiff demonstrate that the Defendant did not violate Title VII.
I. Factual Background
The following facts are undisputed unless indicated otherwise. Plaintiff Robert Tutman ("Plaintiff") was an employee of CBS through November 22, 1995. (Def.'s Local Rule 12(M) Statement of Undisputed Facts ("Def.'s 12(M)") ¶ 5.) He was assigned to WBBM-TV as a cameraman. Id. Tutman's direct supervisor was Kevin Yokley who reported to Andrea Jenkins. (Def.'s 12(M) ¶¶ 6-7.) Tutman also reported to Jenkins. (Def.'s 12(M) ¶ 8.) Vasilopulos was employed by CBS as a sports producer at WBBM-TV. (Def.'s 12(M) ¶ 9.)
A. The Incident
On Friday, May 19, 1995, Tutman was in the WBBM-TV sports office talking to sportscaster, Tim Weigel. (Def.'s 12(M) ¶ 13.) While Tutman was in the office, Vasilopulos walked in and said to Tutman, "Get the fuck out of the office before I pop a cap in you're ass." (Def.'s 12(M) ¶ 16.) Tutman responded to Vasilopulos that the phrase was "bust a cap" not "pop a cap." (Def.'s 12(M) ¶ 17.) Vasilopulos then asked Tutman if he had ever seen a movie called "Niggers With Hats." (Def.'s 12(M) ¶ 18.) Tutman stated that those types of movies make a lot of money and Tutman would help Vasilopulos make such a movie. (Def.'s 12(M) ¶¶ 19-20.) Tutman perceived Vasilopulos's statements and actions to be a serious threat to Tutman's life made on account of Tutman's race. (Pl.'s Modified Local Rule 12(N) Response to Defendant's Local Rule 12(M) Statement of Material Facts ("Pl.'s 12(N) Response") ¶ 21.) A number of WBBM-TV employees witnessed the exchange. (Def.'s 12(M) ¶ 23.)
B. The Investigation
Following the exchange, both Tutman and Vasilopulos left the sports office. (Def.'s 12(M) ¶ 24.) Tutman went directly to Jenkins and informed her of the incident. (Def.'s 12(M) ¶¶ 7-9, 25.) Tutman left the station shortly thereafter to go home. (Def.'s 12(M) ¶ 28.) On his way home, Tutman called D.E. Simmons, a consultant hired by CBS to address employees' workplace concerns, to inform Simmons of the incident as well. (Def.'s 12(M) ¶¶ 29-31.) After talking to Tutman, Simmons phoned Jenkins and the two arranged to meet that night to discuss the incident. (Def.'s 12(M) ¶¶ 35-36.) After their discussion, the two informed John Lansing, the news director, of Tutman's concerns. (Def.'s 12(M) ¶¶ 27, 38.) Lansing questioned both Weigel and Vasilopulos about the incident. (Def.'s 12(M) ¶¶ 39-40.)
The following Monday, Tutman called CBS to express that he was not comfortable coming to the station because the incident with Vasilopulos had not been resolved. (Def.'s 12(M) ¶¶ 42.) CBS accommodated Tutman by giving him his *821 assignments over the phone. (Def.'s 12(M) ¶¶ 43.) At the end of his shift Tutman requested and attended a meeting with Robert McGann, the general manager, to inform McGann of the incident. (Def.'s 12(M) ¶¶ 44-46.) Following that meeting, McGann met with Jenkins and Lansing. (Def.'s 12(M) ¶ 48.) McGann initiated his own investigation into the incident which began with a meeting with Vasilopulos. (Def.'s 12(M) ¶¶ 51-52.) McGann's goal for this meeting was to communicate to Vasilopulos that CBS was taking Tutman's allegations seriously and to give Vasilopulos a chance to explain his view of what had occurred. (Def.'s 12(M) ¶ 53.) McGann also informed CBS's human resources department of the incident and it was determined that that department would continue the investigation. (Def.'s 12(M) ¶¶ 56-57.) In addition, CBS's Director of Policy and Administration, Sandra Spangenberg, traveled from New York to conduct an investigation. (Def.'s 12(M) ¶ 58.) After interviewing Tutman, Vasilopulos, and other witnesses, Spangenberg recommended giving Vasilopulos a written warning. (Def.'s 12(M) ¶¶ 59, 61.)
C. CBS's Disciplining of Vasilopulos
At the conclusion of these investigations, CBS determined that Vasilopulos did not pose a physical threat to Tutman but, because his conduct had been inappropriate, CBS believed that Vasilopulos should be disciplined. (Def.'s 12(M) ¶¶ 66-67.) One possible course of action that CBS explored was terminating Vasilopulos. (Def.'s 12(M) ¶¶ 68, 73.) The parties dispute whether CBS policy mandated terminating Vasilopulos. (See Def.'s 12(M) ¶¶ 68-73; Pl.'s 12(N) Response ¶¶ 68-73.) CBS policy relating to the incident is as follows.
CBS will not tolerate any form of harassment on account of race, color, national origin, religion, sex, age, sexual orientation.... The Company will investigate any issue as it arises and will take appropriate action. Any employee who engages in such harassment will be subject to discipline, up to and including termination.
(Pl.'s Ex. 5, CBS Policy, General, Fair Employment Practices.)
The following categories are examples of conduct which may be grounds for immediate discharge.... Each situation is to be judged on a case-by-case basis....
Misconduct
Conduct which is adverse to the safety and welfare of CBS or its employees, including, but not limited to, any act of violence to property or person.... or any behavior, which in the sole discretion of CBS, endangers CBS' employees, premises, or property or presents a threat of such danger....
(Pl.'s Ex. 5, CBS Policy, Discipline and Termination, Misconduct.) After its investigation, CBS concluded that Vasilopulos's conduct did not fall within the Misconduct category and that terminating Vasilopulos was not warranted because Vasilopulos had not intended for his comments to be threatening. (Def.'s 12(M) ¶¶ 68, 73.)
CBS decided on a three-part response to Vasilopulos's conduct. (Def.'s 12(M) ¶ 74.) First, CBS gave Vasilopulos a written warning and placed a copy in Vasilopulos's personnel file. (Def.'s 12(M) ¶¶ 75, 77.) The warning emphasized that Vasilopulos's conduct was inappropriate even though Vasilopulos did not intend for Tutman to feel threatened. The letter also stated that any further incidents of this type would result in serious consequences, including possible termination. (Def.'s 12(M) ¶ 76.) Second, CBS sent Vasilopulos to a three-day Interpersonal Skills Workshop which focused on promoting better relationships in the workplace. (Def.'s 12(M) ¶¶ 78-79.) Finally, CBS required Vasilopulos to apologize to Tutman. (Def.'s 12(M) ¶¶ 80.) While Vasilopulos prepared a letter which was sent to Tutman, (Def.'s 12(M) ¶¶ 84-86), the parties dispute whether the letter constitutes an apology, (Pl.'s 12(N) Response ¶ 84). CBS *822 also recirculated its anti-discrimination and fair employment policies to all WBBM-TV employees. (Def.'s 12(M) ¶ 87.)
D. Tutman Placed on Medical Leave
Tutman worked on May 22, 1995 but refused to return to work after that on the grounds that he still felt unsafe at work. (Def.'s 12(M) ¶ 88.) Consequently, CBS placed Tutman on paid medical leave of absence. (Def.'s 12(M) ¶ 89.) Tutman did not request that CBS do so. (Pl.'s Modified Local Rule 12(N) Statement of Additional Facts ("Pl.'s 12(N) Statement") ¶ 20.) While the parties dispute what should have occurred after Tutman spent six months on medical leave of absence, the content of the corporate medical leave policy is not disputed. (See Def.'s 12(M) ¶¶ 89-94; Pl.'s 12(N) Response ¶¶ 89-94.) The content of the policy is as follows. An employee may not remain on a medical leave of absence for more than six months. (Def.'s 12(M) ¶ 90.) At the end of six months, the employee must either return to work if medically able to or apply for long term disability benefits if medically qualified to do so. (Def.'s 12(M) ¶ 91.) An employee who does neither will, at the expiration of six months, be deemed to have voluntarily resigned. (Def.'s 12(M) ¶ 92.)
While Tutman was on leave, members of CBS's management telephoned him in an effort to get him to return to work. (Def.'s 12(M) ¶ 95.) They responded to his fear of Vasilopulos by offering him, if he returned to work, the option of selecting different shifts and receiving his assignments by telephone in order to insure that Tutman would not have contact with Vasilopulos. (Def.'s 12(M) ¶ 96.) Tutman did not return to work at the time that CBS contacted Tutman with these suggestions. He also did not return to work later when CBS contacted him to inform him that he would need to return to work when the six-month medical leave expired. (Def.'s 12(M) ¶¶ 97-98.)
E. Tutman Terminated
Tutman requested an extension of the leave stating that he needed to exercise in order to be in sufficient physical shape to return to work. (Pl.'s Response 12(N) ¶ 100.) CBS informed Tutman that it had denied his request for an extension of his medical leave and that if he failed to return to work on November 22, 1995, the day his six-month leave expired, he would be deemed to have voluntarily resigned. (Def.'s 12(M) ¶ 103.) CBS refused to extend Tutman's medical leave providing as its stated reason CBS's preexisting strict policy to not extend medical leave beyond the six-month allowed time period. (Def.'s 12(M) ¶ 104.) Tutman was deemed to have voluntarily resigned on November 22, 1995 when he failed to return to work and failed to apply for long term disability. (Def.'s 12(M) ¶¶ 108-09.) Thereafter Tutman filed his complaint with the EEOC and instituted this litigation. (Def.'s 12(M) ¶ 111.)
II. Standard of Review
Summary judgment "shall be rendered forthwith 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. See Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir.1998). To avert summary judgment, however, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A dispute about a material fact is genuine only if the evidence presented is *823 such that a reasonable jury could return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
III. The Motion for Summary Judgment
A. The Retaliation Claim
The Court recommends granting Defendant's motion for summary judgment on the retaliation claim because the evidence does not show that Tutman's request for extended leave was denied in retaliation for his complaint about Vasilopulos. To establish a prima facie case of retaliation, a plaintiff must meet three elements: (1) the plaintiff engaged in protected expression; (2) the plaintiff suffered an adverse action; and (3) there was a causal link between the protected expression and the adverse action. Drake v. Minnesota Mining and Manufacturing Co., 134 F.3d 878, 885 (7th Cir.1998) (citing McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir.1997)). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for the alleged adverse action. McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 483 (7th Cir.1996). If this is achieved, the burden then shifts back to the plaintiff to show that the defendant's stated reason for the action is pretextual. Id. There is no dispute that Plaintiff has met the first two elements. The retaliation claim turns on the issue of whether there is a fact question regarding the causal link.
1. The Causal Link
CBS is entitled to summary judgment on Tutman's retaliation claim because Tutman has offered insufficient evidence to make out a prima facie retaliation claim. Tutman has failed to establish a causal link between the protected expression and the adverse action. In order to establish the requisite causal link, a plaintiff must prove that the defendant would not have taken the adverse action but for the plaintiff's protected expression. McKenzie, 92 F.3d at 483. This Tutman has failed to do. Tutman has introduced no evidence to show that the adverse action CBS took was caused by Tutman's earlier complaints about Vasilopulos. Rather the evidence is clear that Plaintiff was terminated because he failed to return to work following the end of his six month medical leave.
Plaintiff's allegations regarding a causal link between Plaintiff's complaint about Vasilopulos and Plaintiff's deemed resignation are limited to the following paragraph:
Mr. Tutman notified CBS of his intention to file a Charge of Discrimination by correspondence dated October 20, 1995. CBS met with Mr. Tutman and his attorneys on November 13, 1995. During this meeting, Mr. Tutman's attorneys requested an extension of the medical leave of absence to Mr. Mark Engstrom. Four days after the meeting, Mr. Mark Engstrom denied Mr. Tutman's request for extension of medical leave of absence.
(Pl.'s 12(N) Response ¶ 104 (citations omitted).) The most that Tutman shows is that CBS knew of his complaints at the time that it took the adverse action. However, knowledge is insufficient to establish a causal link. See Gibson v. Old Town Trolley Tours, 160 F.3d 177, 182 (4th Cir. 1998) (holding that judgment as a matter of law was proper when the plaintiff "did not present any evidence that [the defendant] was motivated by the EEOC complaint. Knowledge is necessary to establish causation, but it is not sufficient."). In addition, the mere occurrence of the adverse action after the protected expression is insufficient to support a presumption of causation. Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.1998) ("Post hoc ergo propter hoc [After this hence on account of this] is not enough to support a finding of retaliation."). As a result, in that Plaintiff has come forward with no evidence to establish a causal link, *824 summary judgment in favor of Defendant is appropriate on the retaliation claim.
2. The Reason for the Adverse Action as Pretext
Even if Tutman were able to make out a prima facie retaliation claim, CBS is entitled to summary judgment on Tutman's retaliation claim because Tutman has offered no evidence to show that CBS's reason for not extending Tutman's medical leave was pretext. CBS's stated reason for not extending the medical leave was that CBS's policy does not allow medical leave to be extended beyond six months and no exceptions are made to this limitation. The McKenzie case is directly on point. 92 F.3d 473. In that case the adverse action suffered by the plaintiff was her employer refusing to allow her to leave the premises during her breaks. Id. at 484. However, the employer explained that it was the company's policy that no employee was allowed to leave during break times. Id. The Seventh Circuit stated that, even assuming that the plaintiff had established a prima facie case of retaliation, she failed to present any evidence tending to disprove that the break policy applied to all employees. Id. Because the plaintiff was unable to prove that the stated explanation for the adverse action was pretext, the Seventh Circuit affirmed the grant of summary judgment against her on the retaliation claim. Id.
In the present case, Tutman also provided no evidence to cast doubt on the stated reason given by CBS for not extending his medical leave. In both the present case and McKenzie, the employer stated that the reason for the adverse action was adherence to policy. Tutman was unable to give examples of other employees for whom an exception to the leave policy was made. (See Pl.'s 12(N) Response ¶ 105.) Consequently, in the present case, as in McKenzie, Plaintiff has failed to present any evidence tending to cast doubt on the testimony that the policy applied to all employees. As a result, Plaintiff cannot maintain a cause of action for retaliation.
B. The Hostile Work Environment Claim
The Court also recommends granting Defendant's motion for summary judgment on the hostile work environment claim. Although the Court concludes that Plaintiff did create a genuine issue of material fact as to the existence of a hostile work environment, the Court concludes that CBS's response to Tutman's complaint was prompt and appropriate. In order to establish a claim of hostile work environment, a plaintiff must meet three elements. First, he must show that he subjectively believed that the alleged wrongdoer's conduct created a racially hostile environment. McKenzie, 92 F.3d at 480. Second, he must show that the alleged wrongdoer's conduct objectively created a racially hostile environment. Id. Finally, he must show that the defendant knew, or should have known, of the alleged wrongdoer's conduct and the defendant failed to take prompt and appropriate remedial action in response to that conduct. Id. (citing Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir.1989)).
If an employer takes reasonable steps to discover and rectify the harassment of its employees, however, it has discharged its legal duty. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir.1995). "An employer's response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made." Brooms, 881 F.2d at 421. We are not to focus "solely upon whether the remedial activity ultimately succeeded, but instead should determine whether the employer's total response was reasonable under the circumstances as then existed." Id. The reasonableness of an employer's response depends, in *825 part, on the gravity of the harassment alleged. Baskerville, 50 F.3d at 432.
McKenzie, 92 F.3d at 480.
1. The Single, Isolated Incident of Harassment
Tutman has offered sufficient evidence of harassment to create a genuine issue of material fact as to the existence of a hostile work environment. The determination of a hostile work environment can only be made by evaluating all of the circumstances which include the frequency and severity of the discriminatory conduct, whether the conduct is physically threatening or humiliating, and whether it is an unreasonable interference with the victim's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993).
Defendant argues that, as a matter of law, a single incident of harassment is insufficient to support a hostile work environment claim. Seventh Circuit caselaw demonstrates otherwise. The Seventh Circuit has stated that a single act can be sufficient to support a hostile work environment claim. King v. Board of Regents, 898 F.2d 533, 537 (7th Cir.1990). While it is true that in King the Seventh Circuit pointed out that "[a]lthough a single act can be enough, generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident," id., the Seventh Circuit has specifically criticized the use of any bright line rule requiring a minimum number of incidents to support a hostile work environment claim as a matter of law.
The determination of defendant's liability "must be made on a case-by-case basis after considering the totality of the circumstances." Nazaire, 807 F.2d at 1380-1381. Within the totality of circumstances, there is neither a threshold "magic number" of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim. Daniels, 937 F.2d at 1273-1274.
Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993). Consequently, the Court refuses to conclude that one incident is, as a matter of law, insufficient to support a hostile work environment claim.
That conclusion, coupled with the evidence that the incident at issue was especially severe, leads this Court to conclude that Plaintiff has submitted sufficient evidence to create a genuine issue of material fact as to the hostile work environment claim. Courts have pointed out that the racial epithet of "nigger" is particularly offensive. See Rodgers, 12 F.3d at 675. In Rodgers, the Seventh Circuit stated that the word "nigger" is unambiguously racist and held that its use on even a few occasions affects the terms and conditions of the plaintiff's employment severely enough to support a hostile work environment claim. Id. Other courts have also noted the severe impact of the use of the word. See Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984). "The use of the word `nigger' automatically separates the person addressed from every non-black person; this is discrimination per se." Id.
In addition, in the present case, it is undisputed that Vasilopulos not only used the word "nigger" in the exchange with Tutman but Vasilopulos also threatened to kill Tutman. This added physical threat makes the present case distinguishable from cases in which the Seventh Circuit has held that there was no hostile work environment as a matter of law. See McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 480 (7th Cir.1996) (holding that three sexually suggestive comments over a three month period were not frequent enough nor severe enough to be unreasonable interference with the plaintiff's work environment); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 885 (7th Cir.1998) (holding that a single offensive, racist comment was not sufficient to *826 establish a hostile work environment). Consequently, the Court concludes that the evidence submitted by Plaintiff creates a genuine issue of material fact as to whether the discriminatory conduct suffered by Plaintiff was so offensive and severe that a single act of it creates a hostile work environment.[1]
2. Response to the Conduct
Even though Tutman was able to demonstrate that Vasilopulos's conduct created a racially hostile work environment, CBS is entitled to summary judgment on Tutman's hostile work environment claim because the record is clear that as a matter of law CBS took prompt and appropriate remedial action in response to Vasilopulos's conduct. An employer can be held responsible for a hostile work environment only if, when an employee harasses a coworker, the employer knew or had reason to know of the conduct and failed to take appropriate corrective action. McKenzie, 92 F.3d at 480. An employer acts unreasonably if the employer unduly *827 delays its response to an incident or if the action the employer does take is not reasonably likely to prevent the conduct from recurring. Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 535 (7th Cir.1993).
a. Appropriateness in General
Plaintiff argues that CBS's response was not appropriate because it did not conduct an adequate investigation. Plaintiff disputes whether there was an actual investigation and alleges that the so-called investigation was in actuality just a series of meetings. However, Plaintiff did not dispute a single paragraph in CBS's statement of facts describing the investigation. (Pl.'s 12(N) Response ¶¶ 35-65.) The investigation included multiple interviews with Vasilopulos, (Def.'s 12(M) ¶¶ 40, 51, 59), interviews with Tutman, (Def.'s 12(M) ¶¶ 44, 59), and interviews with employees who had witnessed the incident, (Def.'s 12(M) ¶ 59). The investigation also included inquiries into the incident by three different individuals, the News Director, the General Manager, and a representative from the New York Human Resources Department. (Def.'s 12(M) ¶¶ 39, 40, 51, 58.) In addition, Plaintiff cites no cases to support his position that this was an inadequate investigation. Consequently, the Court concludes that the investigation was sufficient as a matter of law.
Plaintiff also argues that CBS's response was not appropriate because CBS's policy required that Vasilopulos be terminated. Plaintiff argues that CBS did not have discretion under its policy on how to discipline Vasilopulos. This argument is rejected because the policy on its face provides CBS with discretion. The policy states that
CBS will not tolerate any form of harassment on account of race, color, national origin, religion, sex, age, sexual orientation.... The Company will investigate any issue as it arises and will take appropriate action. Any employee who engages in such harassment will be subject to discipline, up to and including termination.
(Pl.'s Ex. 5, CBS Policy, General, Fair Employment Practices) (emphasis added).
The following categories are examples of conduct which may be grounds for immediate discharge.... Each situation is to be judged on a case-by-case basis....
Misconduct
Conduct which is adverse to the safety and welfare of CBS or its employees, including, but not limited to, any act of violence to property or person .... or any behavior, which in the sole discretion of CBS, endangers CBS' employees, premises, or property or presents a threat of such danger....
(Pl.'s Ex. 5, CBS Policy, Discipline and Termination) (emphasis added). First, under the policy, harassment does not require immediate termination only discipline, "up to and including termination." Second, the Discipline and Termination section does not mandate termination for the listed categories but only says that it may be the result. Third, even if the Discipline and Termination section did require termination, the conduct at issue does not necessarily fall into the Misconduct category within the Discipline and Termination section. The conduct at issue could be interpreted one of two ways: (1) Vasilopulos was serious and intended his words to be a threat to kill Tutman or (2) Vasilopulos was merely joking around and never genuinely intended to kill Tutman or for his words to be interpreted as a serious threat to kill Tutman. Consequently, it was open for interpretation as to whether Vasilopulos's conduct was a genuine threat of violence which fell within the Misconduct category. After investigation, CBS concluded that it did not. It was within CBS's discretion to draw that conclusion.
Seventh Circuit case law reinforces the conclusion that CBS's response was appropriate. In McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 483 (7th Cir. 1996), the employer's response to an employee's *828 sexually suggestive remarks to the plaintiff consisted of having a meeting to discuss the complaint, deciding that the employee would have no further contact with the plaintiff, and issuing a memo reiterating the company's sexual harassment policy. Id. The Court held that, as a matter of law, the response was a reasonable one given the gravity of the conduct. Id. In Iovin v. Northwestern Memorial Hospital, 916 F.Supp. 1395, 1411 (N.D.Ill. 1996), the employer's response to discriminatory remarks made to the plaintiff consisted of telling the plaintiff that such remarks would not be tolerated, meeting with the offender and warning him that the conduct was inappropriate and must cease immediately, issuing a written warning to the offender which detailed the employer's anti-discrimination policy, and finally moving the plaintiff's workstation away from the offender's. Id. The court held that, as a matter of law, this was an appropriate response. Id.
CBS's response to the harassment at issue in the present case went farther than the response in either Iovin or McKenzie. Not only did CBS issue a warning letter to the wrongdoer as did the employer in Iovin, assure that the plaintiff and the wrongdoer would have no further contact as did both the employers in Iovin and McKenzie, and recirculate its anti-discrimination policy as did the employer in McKenzie, but CBS also sent the wrongdoer to a training session. Thus, even though the gravity of the conduct in all of these cases was comparable, that is, consisting of discriminatory remarks, CBS response went beyond the responses in McKenzie and Iovin. Thus, based on these precedents, CBS's response in the present case was appropriate as a matter of law.
b. Promptness
The Court must also examine whether CBS's response was sufficiently prompt after Tutman complained of Vasilopulos's conduct. The Court concludes that no question of fact exists on this issue. CBS's response consisted of the following actions within the following time frames. First, after Tutman reported the incident to his supervisor, his supervisor immediately reported it to the News Director. (Def.'s 12(M) ¶ 38.) The News Director began his investigation the very day of the incident. (Def.'s 12(M) ¶¶ 39-40.) The next business day, Tutman reported the incident to the General Manager of the station, who began his own investigation. (Def.'s 12(M) ¶¶ 51-52.) Four days after the incident, the Director of Policy and Administration from the human resources department traveled from New York to also conduct an investigation independent of the others that were occurring. (Def.'s 12(M) ¶ 58.) Finally, before the close of two weeks, CBS had concluded its investigation and determined what course of action it would take in response to the incident. (Def.'s 12(M) ¶¶ 74-84.) Further, two out of three prongs of its response, the letter of reprimand to Vasilopulos and Vasilopulos's letter to Tutman, were also completed within two weeks of the incident, leaving only Vasilopulos's training to be completed. (Def.'s 12(M) ¶¶ 75, 84-86.)
Under the case law, an investigation and response within two week's time is sufficiently prompt. In Saxton, the court concluded as a matter of law that the employer acted with sufficiently promptness when the supervisor began his investigation the day after the plaintiff lodged her formal complaint, the supervisor completed his report two weeks later, and finally the wrongdoer was disciplined within five weeks of the incident. Saxton, 10 F.3d at 535. In McKenzie the Court held that, as a matter of law, an employer's response was prompt when management met to discuss the complaint and determine a course of response within ten days of the incident being reported. McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 481 (7th Cir.1996). Consequently, the Court concludes that CBS's present action of investigating the incident, determining *829 its course of action, and reprimanding the offender within two weeks of the incident is sufficiently prompt.
c. Reasonably Likely to Prevent the Conduct from Recurring
The Court also concludes as a matter of law that CBS's investigation and response to the incident was reasonably likely to prevent the conduct from recurring. First, when Tutman reported the incident to Jenkins, Simmons, and McGann, all verbally responded to Tutman in a way that demonstrated that they were taking the allegations seriously. (Def.'s 12(M) ¶¶ 26-27, 33, 47.) Jenkins told Tutman that he had done the right thing by informing her of the incident and assured him that she would take care of the matter. (Def.'s 12(M) ¶¶ 26-27.) Simmons told Tutman that he had done the right thing by reporting the incident. (Def.'s 12(M) ¶ 33.) Simmons also told Tutman that he would discuss the incident with Jenkins. (Def.'s 12(M) ¶ 34.) McGann told Tutman that he was taking the allegations very seriously and resolving the matter would be McGann's top priority. (Def.'s 12(M) ¶ 47.) Several members of CBS management also informed Vasilopulos that the allegations against him were very serious. (Def.'s 12(M) ¶¶ 41, 55.) Immediately after the incident, three different members of CBS management launched investigations into the occurrence. (Def.'s 12(M) ¶¶ 39-40, 51-52, 58.)
These investigations resulted in a conclusion that although Vasilopulos's behavior was inappropriate, it was not meant to be seriously threatening and Vasilopulos posed no risk of violence to Tutman. (Def.'s 12(M) ¶¶ 66-67.) As a result, there was a three pronged response to Vasilopulos which included a warning letter to Vasilopulos that was placed in his file, sending Vasilopulos to a workshop on workplace relationships, and the letter from Vasilopulos to Tutman. (Def.'s 12(M) ¶¶ 74-80.) CBS additionally took several other steps to prevent the occurrence of similar incidents. CBS put Tutman on paid leave until and even after the situation was resolved. (Def.'s 12(M) ¶ 89.) In addition, CBS recirculated its anti-discrimination policy to all employees at the station. (Def.'s 12(M) ¶ 87.) Finally, CBS saw to it that there would be no contact between Tutman and Vasilopulos by placing them on different shifts and allowing Tutman to get his assignments without coming into the station. (Def.'s 12(M) ¶ 96.) The Court concludes that this response was reasonably likely to prevent the conduct from recurring.
Plaintiff argues to the contrary. Plaintiff points out that Vasilopulos had prior written reprimands in his file for similar instances in which he raised his voice at other employees and used profanity. Plaintiff posits that the incident between Vasilopulos and Tutman demonstrates that written reprimands neither altered nor modified Vasilopulos's behavior. Consequently, Plaintiff argues that CBS's response to Vasilopulos's treatment of Tutman was not appropriate because CBS had prior notice that a written warning to Vasilopulos was insufficient to prevent such behavior from recurring. Plaintiff, however, misconstrues the standard which requires prevention of likelihood of recurrence.
First, CBS's duty, the requirement of an appropriate response, only requires that the employer insure that the conduct will not likely be repeated between the offender and the plaintiff. The likelihood of recurrence need only be against the initial victim. See Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 535-36 (7th Cir.1993) (holding that transferring the offender to a different department from the plaintiff "was a sufficient safeguard against any recurrence of the harassment"). Thus, CBS did not need to insure that Vasilopulos never again made discriminatory or harassing remarks to any employee at CBS, but only that Vasilopulos did not make discriminatory remarks again to Tutman.
*830 The mere existence of repeat occurrences directed at different victims does not make the discrimination suffered by Plaintiff actionable. "Title VII is not directed against unpleasantness per se but only ... against discrimination in the conditions of employment." Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir.1994). It is true that termination would have prevented repeated discriminatory conduct by Vasilopulos directed at any victim. However, the Court is not a super human resources department. The Court is not here to second guess CBS's hiring and hiring decisions. Vasilopulos certainly does not appear to be a pleasant coworker. He has on more than one occasion treated his coworkers disrespectfully and rudely. However, it is not the Court's job to review every prior incident in Vasilopulos's file, only the conduct directed at Plaintiff. In sum, since CBS's response to the present incident was appropriate and designed to prevent repeat occurrences of discrimination directed at Tutman, it was within CBS's discretion as an employer to choose to retain Vasilopulos.
Second, and perhaps more important, even if the prior reprimand in Vasilopulos's file demonstrated that a written warning was insufficient to prevent repeat occurrences of discriminatory remarks directed at the same victim, CBS took further undisputed steps to insure that Vasilopulos and Tutman would never have to have contact with each other. CBS offered Tutman different shifts from Vasilopulos and the option of receiving his assignments by telephone so Tutman would not have to come into the station. This offer was perfectly sufficient to insure the prevention of repeated discriminatory conduct by Vasilopulos directed at Tutman. Consequently, CBS's response was designed to prevent Tutman from suffering repeated acts of discrimination by Vasilopulos. In sum, in that Tutman fails to provide any evidence demonstrating that CBS's response to Tutman's complaint was inadequate or inappropriate, Defendant's motion for summary judgment is granted.
C. The Constructive Discharge Claim
Finally, the Court recommends granting Defendant's motion for summary judgment on the constructive discharge claim. To maintain a claim for constructive discharge, a plaintiff must show that his working conditions were so intolerable because of unlawful discrimination, that a reasonable person would have been compelled to resign. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 885 (7th Cir.1998). A constructive discharge claim requires the work environment to be an aggravating situation beyond ordinary discrimination. Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996). In that Tutman failed to meet the high standard required for constructive discharge, Drake, 134 F.3d at 886, the Court grants Defendant's motion for summary judgment.
This conclusion is dictated by Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 535 (7th Cir.1993). In Saxton, much like the present case, the employee plaintiff brought a claim as a result of dissatisfaction with the employer's response to discrimination. Id. at 530, 535. "Nothing in the record indicates that [the defendant] treated [the plaintiff] so poorly that a reasonable employee in her position would have felt compelled to resign. To the contrary, the evidence suggests that [the defendant] went out of its way to ensure that [the plaintiff] was not placed in an uncomfortable or embarrassing position while the company investigated her complaint and took remedial measures." Id. at 537 "Whatever lingering dissatisfaction [the plaintiff] may have felt regarding the resolution of her complaint or her position at work, her situation cannot reasonably be described as intolerable." Id. The plaintiff's evidence did not "support an inference that [her] decision to abandon her job was effectively coerced by [the defendant's actions.]" Id. In sum, the *831 court acknowledged that when an employer takes reasonable steps to rectify harassment, the employer cannot be held liable for constructive discharge. Id. In that, in the present case, the Court concluded above that CBS took reasonable steps to respond to the incident to Vasilopulos the Court concludes that a reasonable person, in light of such a response, would not feel compelled to resign.
IV. CONCLUSION
Plaintiff has not presented sufficient evidence to create a genuine issue of material fact as to his retaliation claim, his hostile work environment claim, or his constructive discharge claim. As a result, the Court recommends that Defendant's motion for summary judgment be granted on all claims.
NOTES
[1] Plaintiff cited to several additional instances of discriminatory conduct at CBS which the court may properly consider in deciding the motion for summary judgment. The Court concludes that one set of these allegations adds support to Plaintiff's hostile work environment claim. Mr. Tutman testified as to general discriminatory treatment directed at minorities. (Pl.'s 12(N) Statement ¶ 16.) In addition, Mr. Tutman himself allegedly was the target of four or five physical threats. (Pl.'s 12(N) Statement ¶ 17. but cited pages not included in exhibits) Further, there was an additional incident with Vasilopulos in which he told an African-American producer to "get the fuck out of my office." (Pl.'s 12(N) Statement ¶ 23.) Finally, there were allegations of racial harassment being suffered by third parties at CBS including one employee being called a "spic" and another employee being told she was "too dark." (Pl.'s 12(N) Statement ¶ 15.)
First, the Court finds the allegations regarding general discriminatory treatment are insufficient to provide evidence of a hostile work environment in that Plaintiff has provided no specific details regarding any particular instances of such treatment aside from a list of names and a brief, general description of an adverse action suffered by that person. The Court cannot make any informed assessment as to the severity, frequency, or pervasiveness of these incidents with only these general allegations. It would not even be possible to conclude from these general allegations whether the conduct was actually discriminatory as compared to, for instance, racial slurs which are discriminatory on their face. It is not the Court's place to hold a mini-trial on each one of these incidents. Consequently, this allegation cannot provide the basis for a hostile work environment claim.
Second, regarding the allegations that Tutman himself suffered four or five physical threats, Plaintiff failed to provide details as to the specific instances of threatening conduct nor facts to support the allegation that these were motivated by discrimination. In fact, aside from including these allegations in his statement of facts, Plaintiff did not even include the deposition pages in his exhibit to which he cited. The Court will not presume, without any evidence, that these incidents were discriminatory; thus, the allegations of physical threats provide no evidence to support Tutman's hostile work environment claim.
Finally, as to the racial slurs directed at other employees at CBS and the profanity Vasilopulos directed at an African-American producer, the Court will consider these based on Northern District of Illinois and Seventh Circuit precedents demonstrating that it is permissible for a court to consider harassment of third parties in hostile work environment claims. See Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 460 (7th Cir. 1990) (considering corroborating evidence as to instances of harassment of other employees); Valadez v. Uncle Julio's of Illinois, Inc., 895 F.Supp. 1008, 1013 (N.D.Ill.1995) (stating that "the court can consider evidence of sexual harassment directed at other employees of the same sex as plaintiff" when determining the existence of a hostile work environment). Consequently, the racial slurs and profanity directed at other minority employees can be considered in the hostile work environment claim. However, even combined with the threat towards Tutman, Tutman has still only provided evidence of four isolated incidents of racial discrimination at CBS. While there is a question as to when Tutman learned of these incidents, these instances do have the potential to provide added corroboration of Plaintiff's claim of a hostile work environment. Consequently, this evidence further supports the Court's conclusion that there is a genuine issue of material fact as to Plaintiff's hostile work environment claim.
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13-4084
Augustus v. AHRC Nassau
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.
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 10th day of March, two thousand fifteen.
PRESENT:
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges,
JED S. RAKOFF,
District Judge.
_____________________________________
SUSAN AUGUSTUS,
Plaintiff-Appellant,
v. 13-4084
AHRC NASSAU,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Susan Augustus, pro se, Elmont, New York.
FOR DEFENDANT-APPELLEE: David Michael Cohen, Cooper, Sapir & Cohen, P.C.,
Melville, New York.
Hon. Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.
Appeal from the judgment of the United States District Court for the Eastern District of
New York (Chen, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Susan Augustus, proceeding pro se, appeals from the judgment entered by the
United States District Court for the Eastern District of New York dismissing her Title VII
employment discrimination claim and her Family Medical Leave Act (“FMLA”) retaliation claim
following a bench trial. On appeal, Augustus challenges the district court’s rulings on both claims.
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues
on appeal.
Following a bench trial, we review the district court’s legal conclusions de novo and its
findings of fact for clear error. United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir. 1996).
Augustus argues that the district court erred in concluding that she did not show by a
preponderance of the evidence that the defendant terminated her because of her race. After a
plaintiff establishes a prima facie case of discrimination, the employer must articulate some
legitimate, nondiscriminatory reason for the adverse action. Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the employer is successful, the burden shifts back to the
plaintiff to prove “by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” Id. We conclude that it
was not error for the district court to find that defendant established a nondiscriminatory reason for
her termination by producing evidence that Augustus repeatedly failed to communicate with her
supervisors, to document client services, and to account for her time—which was identified as an
important part of her job, given the significant amount of time she was required to spend in the
field meeting with clients. Augustus attempted to show pretext by demonstrating that she was
disciplined more harshly than other employees, but these comparisons are inapposite. The district
court found that no other employee received as many citations as Augustus, and Augustus
therefore could not show that her punishment was disproportionate to her infractions. Unlike
Augustus, the other employees did not repeatedly violate the rules or fail to communicate with
their supervisors. Given the evidence of Augustus’s repeated failures to complete important
aspects of her job and the dearth of evidence supporting the existence of a discriminatory animus,
the district court did not err in finding that Augustus did not show by a preponderance of the
evidence that her defendant’s nondiscriminatory justification was merely a pretext for racial
discrimination.
Nothing in the record, moreover, supports Augustus’s claim that she was terminated in
retaliation for her advocacy on behalf of a specific client. Although Augustus was qualified for her
position and was the subject of an adverse employment action, she failed to show that “the adverse
employment action occurred under circumstances giving rise to an inference of retaliatory intent.”
Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004). On the contrary, the evidence at
trial showed that Augustus’s supervisors were supportive of her advocacy with respect to that
client. The district court therefore did not err in ruling that Augustus failed to establish a prima
facie retaliation claim under the FMLA.
We have considered Augustus’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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Filed 11/19/15 In re A.A. CA4/1
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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.A., a Person Coming Under the
Juvenile Court Law.
D068026
IMPERIAL COUNTY DEPARTMENT
OF SOCIAL SERVICES,
(Super. Ct. No. JJP3201)
Plaintiff and Respondent,
v.
A.A. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of Imperial County, William D.
Quan, Judge. Affirmed.
Valerie N. Lankford for Defendant and Appellant A.A. (Minor).
Rosemary Bishop for Defendant and Appellant S.S.
Katherine K. Turner, County Counsel, and Rosario T. Gonzalez, Deputy County
Counsel, for Plaintiff and Respondent.
We are confronted with the legal issue of whether a juvenile court may retain
jurisdiction over a dependency case after the subject child has died, for the purpose of
learning the child's cause of death and/or appointing a guardian ad litem to investigate
potential tort claims for the child's estate. The juvenile court determined it must
terminate its jurisdiction under the circumstances. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2014, 21-month-old A.A.1 (Child) was detained and removed from
the home and care of her mother, As.A. (Mother). While in the family home, Child had
been allowed to play with lit matches, exposed to heavy marijuana smoke, and
surrounded by a variety of drug paraphernalia and drugs in plain sight. Mother was
arrested and temporarily incarcerated. Child's father, S.S. (Father), who lived separately,
had a history of substance abuse and declined to take custody of Child.
Mother and Father did not contest the juvenile court's jurisdiction under Welfare
and Institutions Code section 300, subdivision (b),2 and Child was placed with foster
parents, the C.'s. At the C.'s, Child was reportedly healthy, happy, and enjoying visits
with Mother, who wanted to regain custody of Child.
At the December 15, 2014 disposition hearing, the Imperial County Department of
Social Services (the Department) reported that Child had passed away the previous day.
1 Child's legal name varied throughout the record. Her birth certificate indicates a
legal name with initials "A.A.," but she is sometimes referred to by a name with initials
"A.D."
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
Almost a week prior, Child had been found unresponsive in the C.'s home and taken to
the hospital, but died several days later. Child had suffered a severe brain injury, among
other injuries, and a doctor at the children's hospital where Child was brought opined that
it was "very likely inflicted trauma." The Department informed the court that multiple
investigations were ongoing regarding the circumstances of Child's death. The
Department was conducting a separate investigation for the welfare of other children who
had been living in the C.'s home. The police department was conducting a criminal
investigation, and other governmental agencies were investigating the C.'s for foster care
and day care licensing purposes.
The next day, the court considered the Department's request for "Disclosure of
Juvenile Case File," in which the Department sought certain documents from Child's case
file for use in a different dependency case. The court granted the Department's request.
Mother asked that Child's case be held open for another 30 days so that a death certificate
could be obtained, and the court agreed.
At a review hearing in January 2015, the Department reported that it could obtain
an informational copy of Child's death certificate within a few days, but it would not
contain an official "cause of death" because the medical examiner's report would not be
finalized for another 60 days. Mother and Father stated that they knew that Child was
dead, but wished to know the cause of their daughter's death. The court, observing it still
did not have Child's official death certificate, agreed to hold open the case for another 90
days.
3
In April 2015, the Department filed a "Request to Terminate Jurisdiction and
Dismiss Dependency Petition," arguing that Child was not a person described in section
300 for purposes of the court's jurisdiction and attaching a copy of Child's death
certificate. In a hearing on the Department's request, Child's counsel stated that he would
be filing a motion for appointment of separate counsel to investigate whether Child had a
potential tort claim, i.e., a guardian ad litem (GAL). Although Mother was represented
by counsel in a separate civil proceeding regarding Child's death, Mother and Father
wanted the juvenile case held open due to their desire to know what had caused Child to
die.3 In colloquy with counsel, the court commented that it believed the Department's
role in the case was terminated, Mother and Father had other legal avenues for seeking
information, and any GAL would benefit Child's estate rather than Child. The court
requested the parties to file points and authorities on the issues so that the court might
fully understand its obligations prior to terminating its jurisdiction. A further hearing was
set in May 2015.
In the interim, Child's counsel moved for a GAL to investigate potential civil
claims on behalf of Child's estate, as well as objected to dismissal of the juvenile case
until any GAL's investigation was complete. In response, the Department filed a "Second
Request to Terminate Jurisdiction and Dismiss Dependency Petition and Opposition to
Motion to Appoint Tort Guardian Ad Litem." The Department's position continued to be
that Child was no longer "a person" falling into the court's jurisdiction under section 300,
3 On appeal, Father states that he is also separately represented by counsel in the
civil proceeding.
4
and the juvenile court had proof of Child's death. Likewise, the Department argued that
the court's authority to appoint a tort GAL was premised on the need to protect the
interests of a living child, distinct from a child's estate.
Following a hearing, the court terminated its jurisdiction and denied Child's
motion for a GAL. The court stated: "I don't understand or see how we can retain or
continue jurisdiction over a file or a child once the child has deceased, especially under
Welfare and Institutions Code, when our goal is to protect the welfare of the child[,] and
in the court's opinion, that would require a living child . . . ." The court further discussed
that any cause of action arising from the child's death (e.g., a wrongful death suit) would
run to the child's heirs or parents. The court also commented that when a person has
died, the person's interests need to be championed in a different venue, such as probate
court.
Child filed a timely appeal of the court's order terminating jurisdiction and
denying appointment of a GAL. Father timely appealed the court's order terminating
jurisdiction.
DISCUSSION
Despite Child's undisputed death, Child and Father contend the juvenile court had
authority to maintain an open case, and issue orders, for the purpose of obtaining Child's
cause of death. Child also contends that the court was authorized to appoint a GAL to
investigate potential tort claims on behalf of Child's estate. The facts of this case are
undisputed, and we review questions of law de novo. (Pack v. Kings County Human
Services Agency (2001) 89 Cal.App.4th 821, 835.)
5
The issue presented to us is not addressed in the Welfare and Institutions Code nor
has it been discussed in case law. Perhaps inherent in the notion of child protection—at
the heart of dependency cases—is the existence of a living child, such that a need for
review has not previously presented itself. In any event, we conclude the juvenile court
properly terminated jurisdiction when it did.
"The juvenile court is a special department of the superior court and has powers
limited to those granted by and incidental to the Juvenile Court Law, Welfare and
Institutions Code section 200 et seq. [Citation.] 'Under the Juvenile Court Law, the
juvenile court is authorized to make orders pertaining to abused or neglected children
who come within the court's jurisdiction.' " (In re C.F. (2011) 198 Cal.App.4th 454,
466.)
In dependency cases, a juvenile court has jurisdiction to make orders pertaining to
"[a]ny child who comes within any of the [statutory] descriptions" set forth in
subdivisions (a) through (j) of section 300. (§ 300.) The purpose of dependency law "is
to provide maximum safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or being exploited, and to
ensure the safety, protection, and physical and emotional well-being of children who are
at risk of that harm." (§ 300.2, italics added.) As numerous courts have reiterated, "[t]he
paramount purpose underlying dependency proceedings is the protection of the child.
[Citations.] 'The parents do not represent a competing interest in this respect.' " (In re
Jason L. (1990) 222 Cal.App.3d 1206, 1214-1215.)
6
Specifically here, where the juvenile court maintained jurisdiction over Child
under section 300, subdivision (b), the Legislature has explicitly declared, "[t]he child
shall continue to be a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious physical harm or illness."
(§ 300, subd. (b)(1).) When Child's death was confirmed, there could no longer be any
risk of her suffering future harm. Moreover, the legal framework surrounding
dependency cases, with its desire for reunification of families, or if not possible,
development of a permanent placement plan, contemplate that a juvenile court's orders
will be made for the benefit of living children. (See, e.g., §§ 361.5 [discussing provision
of reunification services]; 366.21 [schedule of hearings to review child's placement and
progress]; 366.26, subd. (b) [placement preference to ensure stable, permanent homes for
children].)
Father argues that the juvenile court had "inherent authority" to keep the case
open and determine Child's cause of death. We disagree since a court is first required to
have jurisdiction before it can rely on "inherent powers" to issue orders. (In re C.F.,
supra, 198 Cal.App.4th at p. 466 [inherent powers permit a court to adopt new methods
of practice not specified by statute or rule, but the court must first have jurisdiction].) A
juvenile court is authorized to consider a request for disclosure of a child's case file. (In
re Elijah S. (2005) 125 Cal.App.4th 1532, 1551; § 827, subd. (a)(2).) Further, the court
can satisfy itself that a child is, in fact, deceased as represented to be, and therefore, no
longer in need of protection. However, once a juvenile court has performed its statutorily
7
authorized duties and made any necessary incidental orders, continued judicial action
would exceed its jurisdiction.
Given that the court properly terminated its jurisdiction, it correctly denied Child's
motion for a GAL. Child's counsel cites cases pertaining to the court's authority to
appoint a GAL to investigate minors' potential tort claims, but in each cited case, the
minor was alive. (E.g., In re Nicole H. (2011) 201 Cal.App.4th 388, 392-393 [separate
GAL required to investigate potential tort claim arising from 13-year-old girl's report of
rape by another minor in foster home]; San Diego County Department of Social Services
v. Superior Court (2005) 134 Cal.App.4th 761, 765 [12-year-old boy reported he was
molested at a group home].) The court's authority to appoint a separate GAL for a living
child was consistent with dependency law's overarching purpose of protecting the child,
which is not the case here. The law provides that Child's successor-in-interest may
pursue any of her surviving claims (Code Civ. Proc., § 377.30), and Child's heirs may
pursue any of their own tort claims arising from Child's death (Code Civ. Proc., § 377.60
[wrongful death action]). It appears that Child's parents have taken steps in this regard.
Child's parents understandably wish to know how their daughter passed away
while placed in a foster home. They and other members of the public have a method of
accessing Child's case file for relevant information. (In re Elijah S., supra, 125
Cal.App.4th at p. 1556 [purpose of changes to statute governing disclosure of juvenile
case files was to make "it easier for the press and the public to investigate the death of
suspected victims of abuse and neglect" and to " 'open the workings of the dependency
court and the foster care system to public scrutiny . . . .' " (Original italics.)].)
8
Regardless, the juvenile court was not authorized to retain jurisdiction indefinitely for the
purpose of determining Child's cause of death. Consequently, the trial court properly
terminated its jurisdiction.
DISPOSITION
The juvenile court's order terminating jurisdiction and denying appointment of a
GAL is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
9
| {
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Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1816
REX FORNARO,
Plaintiff, Appellant,
v.
WILLIAM S. GANNON, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge,
Rex Fornaro on brief pro se.
Michael M. Lonergan, Margaret H. Nelson and Sulloway & Hollis,
P.L.L.C., on brief for appellees.
December 1, 2004
Per Curiam. Pro se plaintiff Rex Fornaro appeals a district
court order that granted the defendants summary judgment in this
legal malpractice action. Plaintiff maintains that the defendants,
New Hampshire attorney William S. Gannon and the law firm of
Wadleigh, Starr & Peters, PLLC (WS&P), negligently litigated
certain retaliatory discharge claims against plaintiff's former
employer in the New Hampshire bankruptcy court. While plaintiff
has correctly identified minor errors in the district court's
description of the evidence, we conclude that the court reached the
correct result and that the plaintiff's claims of procedural error
also fail. Accordingly, we affirm, for the reasons explained
below.
I.
Between 1993 and 1994, plaintiff worked as a flight dispatcher
for Business Express Airlines (BEX). On February 28, 1994, BEX
fired plaintiff. Plaintiff secured Connecticut counsel and filed
a civil wrongful discharge action against BEX in the Connecticut
superior court. Inter alia, his complaint alleged that BEX
terminated plaintiff for reporting BEX's alleged violation of
flight safety statutes and regulations to the Federal Aviation
Administration (FAA) and to other agents, servants, or employees of
BEX. Plaintiff sought compensatory and punitive damages on the
grounds that BEX discharged him for exercising his constitutional
rights to free speech, as protected by Conn. Gen. Stat. Ann, § 31-
-2-
51q, and in violation of Connecticut's Whistleblower Law, Conn.
Gen. Stat. Ann. § 31-51m.1
BEX removed plaintiff's civil action to federal court.
Thereafter, an involuntary Chapter 11 petition for BEX's bankruptcy
was filed with the New Hampshire bankruptcy court, and plaintiff's
Connecticut counsel filed a proof of claim on his behalf.
Plaintiff then hired the defendants to represent him on his
retaliatory discharge claims against BEX in the New Hampshire
bankruptcy court.2 Attorney Gannon represented plaintiff in a two-
day trial of these claims. Plaintiff maintained that BEX fired him
because he made an anonymous telephone complaint about BEX's short-
staffing to the FAA on January 29, 1994, one month before his
discharge. Testifying on behalf of BEX's Official Unsecured
Creditors Committee (OUCC), plaintiff's former supervisors at BEX
maintained that they fired plaintiff for chronic tardiness and that
they did not know about his anonymous complaint to the FAA when
they fired him.
The bankruptcy court disallowed plaintiff's claim in its
entirety. Assuming that both of plaintiff's statutory claims were
based on his anonymous complaint to the FAA, the bankruptcy judge
1
Plaintiff's complaint also asserted common law claims that
are not implicated in the instant appeal. We do not address them.
2
The defendants also filed a separate civil action against
BEX's officers and directors on plaintiff's behalf. The district
court dismissed that action, and this court summarily affirmed.
See Fornaro v. McManus, 187 F.3d 621 (1st Cir. 1998)(Table).
-3-
ruled that plaintiff failed to prove that BEX terminated him in
violation of Conn. Gen. Stat. Ann. §§ 31-51m and 31-51q because the
evidence failed to show that BEX knew about that complaint before
it fired plaintiff. The judge further concluded that even if BEX
had such knowledge, plaintiff's supervisors had established that
plaintiff's tardiness was a legitimate, non-retaliatory reason for
his discharge and that plaintiff had failed to prove that this
reason was a pretext.
Still represented by attorney Gannon, plaintiff appealed the
bankruptcy court's decision to the district court. While that
appeal was pending, plaintiff consulted attorney John Burwell
Garvey at present defense counsel's law firm (Sulloway and Hollis)
with an eye toward securing representation in this legal
malpractice action. Ultimately attorney Garvey declined to
represent plaintiff. Seeking $10 million in damages, plaintiff
filed a pro se complaint for legal malpractice that alleged, inter
alia, that attorney Gannon negligently failed to present sufficient
evidence that BEX fired plaintiff in retaliation for his complaint
to the FAA. Attorney Gannon promptly withdrew from plaintiff's
bankruptcy appeal, and the district court allowed plaintiff's pro
se motion to dismiss it. Present defense counsel filed an answer
approximately four months after attorney Garvey had declined to
take plaintiff's side in this case.
-4-
At the initial pretrial conference plaintiff suggested that
defense counsel might have a conflict of interest because plaintiff
had consulted another attorney at Sulloway and Hollis before he
filed this lawsuit. Defense counsel indicated that he had looked
into the matter and did not believe that he had a conflict of
interest. The magistrate judge gave plaintiff until December 1,
2000 to file a motion to disqualify defense counsel. Plaintiff did
not do so.
Approximately one year later, plaintiff secured his own
counsel.3 The parties engaged in discovery and the court scheduled
a jury trial to begin on May 6, 2003. One day before the filing
deadline for the defendants' motion for summary judgment,
plaintiff's counsel both moved to withdraw. Citing only
"irreconcilable disputes and conflicts ... concerning litigation
strategy and other substantive matters," counsel informed the court
that plaintiff opposed withdrawal and requested an in camera
hearing. Without holding a hearing, the district court promptly
allowed counsel's motions.
Plaintiff moved for reconsideration. Inter alia, he
complained that neither of his attorneys had identified a reason
that justified his withdrawal with a trial date set and a
dispositive motion pending and that the court should hold a hearing
3
Plaintiff was represented by two attorneys in the district
court. A Massachusetts attorney served as lead counsel and a New
Hampshire attorney appeared as local counsel.
-5-
and deny counsel's motions or, alternatively, extend all deadlines
by sixty (60) days. After plaintiff's now-withdrawn attorneys
filed oppositions, the district court denied plaintiff's motion for
reconsideration while granting his request for an extension.
Judged from the time plaintiff submitted his motion for
reconsideration, plaintiff received another sixty (60) days to find
new counsel and ninety (90) days to oppose the defendants' motion
for summary judgment.
Stripped of his own counsel by the order denying
reconsideration, plaintiff sought to disarm his opponents by filing
a motion to amend his complaint to name Sulloway and Hollis and the
attorney he had previously consulted there, John Burwell Garvey, as
defendants. Plaintiff purported to state a separate legal
malpractice claim against these attorneys on the ground that
attorney Garvey gave plaintiff bad advice about the statute of
limitations that governed his malpractice claim against attorney
Gannon. In addition, plaintiff alleged that he gave attorney
Garvey privileged information to see if Garvey would represent him
in this case, that present defense counsel improperly had access to
that information, and that the district court should discipline
Sulloway and Hollis for unethical conduct. The defendants urged
the court to deny plaintiff's motion to amend his complaint and to
sanction plaintiff for trying to force a change in defense counsel
-6-
long after the deadline for filing a motion for disqualification
had expired.
The magistrate judge denied plaintiff's motion to amend his
complaint as both "untimely (unduly delayed and prejudicial so
close to trial) and as futile (failing to state a cause of
action)." Plaintiff filed a motion for reconsideration and a
motion for leave to file a reply to the defendants' objection to
his motion to amend his complaint that specifically asked the
district court to disqualify present defense counsel on the ground
that plaintiff had disclosed confidential information to attorney
Garvey. Without specifically addressing the disqualification
issue, the magistrate judge endorsed plaintiff's proposed reply
"moot" in light of his previous order denying plaintiff's motion to
amend his complaint. Plaintiff's motion for reconsideration of
that order remained pending.
Thereafter, the district court docketed plaintiff's timely
opposition to the defendants' motion for summary judgment and the
defendants' reply to same. Two days later, the district judge
announced that he had decided to grant the defendants' motion and
that an opinion justifying the court's decision would follow.
Plaintiff moved for reconsideration. The court then issued an
unpublished opinion which ruled that none of the evidence that
plaintiff claimed attorney Gannon should have offered in the
bankruptcy court would have made any difference to the trial's
-7-
outcome because that evidence still failed to show that BEX knew
about plaintiff's complaint to the FAA. Simultaneously, the court
denied plaintiff's motion for reconsideration of the summary
judgment order and his motion for reconsideration of the order
denying his motion to amend his complaint to add Sulloway and
Hollis and attorney Garvey as defendants. Plaintiff filed a timely
notice of appeal.
II.
On appeal, plaintiff argues that the district court erred in
granting the defendants summary judgment. In addition, plaintiff
contends that the district court abused its discretion by allowing
his attorneys to withdraw and thereafter denying plaintiff's motion
to amend his complaint to make Sulloway and Hollis and attorney
John Burwell Garvey defendants. Repeatedly citing Pearson v. First
N.H. Mortgage Corp., 200 F.3d 30 (1st Cir. 1999), plaintiff implies
that he deserves a second bite at the apple because the district
court required him to proceed pro se involuntarily and because
defense counsel has a conflict of interest. We disagree.
We review the orders granting plaintiff's attorneys' motions
to withdraw only for an abuse of discretion. See, Andrews v.
Bechtel Power Corp., 780 F.2d 124, 134 (1st Cir. 1985). Plaintiff
contends that the district court abused its discretion by allowing
his attorneys to withdraw with a trial date set, a dispositive
motion pending, and without the requisite showing of "good cause"
-8-
or a hearing on counsel's motions. Defendants say that the
district court did not abuse its discretion because the court gave
plaintiff sufficient time to find new counsel and respond to their
summary judgment motion. The defendants have the better argument.
Counsel's motions to withdraw were governed by New Hampshire
Rule of Professional Conduct 1.16. In relevant part, this rule
provides that: "a lawyer ... shall withdraw ... if (1) the
representation will result in violation of the rules of
professional conduct ....[,]" see Rule 1.16(a), and that: "a lawyer
may withdraw ... if withdrawal can be accomplished without material
adverse effect on the interests of the client, or if:...(6) other
good cause for withdrawal exists." See Rule 1.16(b)(emphasis
supplied). The Comments to this rule suggest that the district
court had the discretion to treat plaintiff's counsel's
representation that "irreconcilable disputes and conflicts" existed
as sufficient cause for withdrawal without requiring counsel to
spell out the conflicts at an in camera hearing.4 Moreover, here
4
The ABA Model Code Comments that accompany Rule 1.16
recognize that:
Difficulty may be encountered if withdrawal is based on
the client's demand that the lawyer engage in
unprofessional conduct. The court may wish an
explanation for the withdrawal, while the lawyer may be
bound to keep confidential the facts that would
constitute such an explanation. The lawyer's statement
that professional considerations require termination of
the representation ordinarily should be accepted as
sufficient. (emphasis supplied).
-9-
the plaintiff and his counsel were able to air their dispute
through plaintiff's motion for reconsideration and subsequent
filings which confirmed that their relationship had become
acrimonious. Since plaintiff had represented himself during the
first year and a half that this case was pending and trial was
still two months away when the court denied reconsideration, the
court could reasonably assume that allowing withdrawal would not
have a material adverse effect on plaintiff. The district court
gave plaintiff a fair shot at finding successor counsel and
opposing the defendants' motion for summary judgment by granting
plaintiff the extensions he requested.
If more were needed, we note that the record suggests that
plaintiff and his counsel had at least one serious disagreement
over what the rules of professional conduct required plaintiff's
counsel to do in light of defense counsel's inadvertent disclosure
of a privileged communication. This alone supplies "good cause"
for withdrawal. The district court did not abuse its discretion by
allowing plaintiff's counsel to withdraw.
Similarly, the district court did not abuse its discretion by
denying plaintiff's motion to amend his complaint. Insofar as
plaintiff sought to add a separate legal malpractice claim against
attorney Garvey and Sulloway and Hollis, his proposed amended
complaint both failed to state a viable claim and was unsupported
-10-
by the record. See Hatch v. Dep't of Children, Youth and Their
Families, 274 F.3d 12, 19 (1st Cir. 2001). The defendants'
submissions showed that plaintiff could not reasonably have relied
on any comment attorney Garvey might have made about the statute of
limitations when plaintiff filed this lawsuit because attorney
Garvey expressly warned plaintiff not to rely on Sulloway and
Hollis at that point. See Sheinkopf v. Stone, 927 F.2d 1259, 1264-
65 (1st Cir. 1991)(attorney-client relationship may be implied only
where record shows purported client's reliance on attorney was
objectively reasonable or that attorney knowing of such reliance
did nothing to negate it)(citation omitted).5
We also reject plaintiff's contentions that the district court
should have disqualified Sulloway and Hollis in response to the
allegations raised in plaintiff's motion to amend his complaint and
that this court should do so now.6 To be sure, an attorney's
fiduciary duties may be triggered by an initial consultation even
if employment does not result. See, e.g., Westinghouse Electric
Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978); Polyagro
5
It is also clear that plaintiff had decided to sue attorney
Gannon and WS&P before he contacted Sulloway and Hollis and that
plaintiff voluntarily dismissed his bankruptcy appeal after
attorney Gannon properly withdrew from it. Plaintiff has only
himself to blame for the loss of this avenue of review.
6
We reject defendants' claim that plaintiff has waived the
disqualification issue. "Failures to object, unless a true waiver
is involved, are almost always subject to review for plain error."
See Chestnut v. City of Lowell, 305 F.3d 18, 19 (1st Cir. 2002)(en
banc)(per curiam).
-11-
Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256
(D.P.R. 1995). And the fact that the defendants' submissions
showed that Sulloway and Hollis never represented plaintiff in this
lawsuit does not necessarily mean that plaintiff did not disclose
confidential information to attorney Garvey that might have
disqualified Sulloway and Hollis from defending this case. But
even if we assume that plaintiff made such a disclosure,
disqualification was not required absent some showing that this
gave defendants an unfair advantage in this case. See Kevlik v.
Goldstein, 724 F.2d 844, 848 (1st Cir. 1984)(holding dilatory
disqualification motions may be granted when either the court's
confidence in the attorney's vigorous representation of his client
is threatened or the attorney is in a position to use privileged
information to the unfair advantage of the new client)(citations
omitted). Plaintiff made no such showing. Absent an actual
adverse effect, "merely 'conducting [a] trial with counsel that
should have been disqualified does not "indelibl[y] stamp or taint"
the proceedings.'" See Fiandaca v. Cunningham, 827 F.2d 825, 831
(1st Cir. 1987)(citations omitted). Similarly, because plaintiff
has failed to show how any alleged conflict on the part of defense
counsel tainted the summary judgment proceedings, he is not due a
second bite at the apple now.
III.
-12-
Finally, we turn to the summary judgment. Like the bankruptcy
court, the district court assumed that plaintiff's Connecticut
whistleblower and free speech claims both rested on the theory that
BEX fired him in retaliation for his anonymous complaint to the
FAA. On appeal, plaintiff argues that this was error, that his
"true § 31-51q claim" did not require him to prove that BEX knew
about his complaint to the FAA, and that the district court
erroneously overlooked this claim and failed to view the record in
the light most favorable to him. We recognize that the district
court overlooked certain evidence (e.g., the Costa tape) and that
the court did not address what plaintiff now says was his "true §
31-51q" claim. Even when we account for these omissions, the
record fails to show that attorney Gannon's alleged malpractice
even arguably caused the loss of plaintiff's retaliatory discharge
claims.
We review the district court's decision de novo, mindful that
"on a motion for summary judgment all reasonable inferences must be
drawn in favor of the non-moving party, regardless of who bears the
ultimate burden of proof." See Douglas v. York County, 360 F.2d
286, 288 (1st Cir. 2004). The record discloses that plaintiff
worked for BEX for approximately one year, during which he commuted
to BEX's Westport, Connecticut headquarters from his home in Long
Ann, New Jersey. Sometimes, plaintiff was late for work. Although
plaintiff insists that it was all a fabrication, the OUCC's
-13-
evidence before the bankruptcy court disclosed that plaintiff was
late at least five times before he engaged in any arguably
protected conduct. Indeed, on January 4, 1994, plaintiff's
supervisor (DiPaola) warned plaintiff that he would be terminated
if he was late once more.7
On January 29, 1994, plaintiff made an anonymous telephone
complaint to the FAA about BEX's shortstaffing. On the following
day, plaintiff made similar complaints to BEX managers O'Brien and
Heller in two separate telephone conversations that plaintiff
secretly tape-recorded.8 In these conversations, plaintiff
protested the fact that he was scheduled to work the next day
(1/31/94) even though he had not had enough time off to rest to
enable him to dispatch aircraft safely. Although plaintiff
emphasized that BEX should employ enough staff to operate its
airline safely, he also complained that BEX had scheduled him to
work in retaliation for a grievance that he had previously filed,
and he only agreed to work (and indeed, did work) after Heller
assured him that he would be paid time and a half for his efforts.
A few days after that (i.e., on 2/4/94), BEX supervisor Heller
called plaintiff into his office and, after noting that plaintiff
had once worked for the FAA, warned plaintiff that he would be
fired if he was late for work again or if he released a flight
7
The district court erroneously attributed this warning to
supervisor Heller. The Heller warning came one month later.
8
Heller eventually realized that he was being taped.
-14-
late. BEX records indicate that plaintiff thereafter was late
several more times before his February 28th discharge.
Plaintiff maintains that the foregoing chain of events
suffices to prove that BEX fired him in retaliation for his 1/29/94
anonymous complaint to the FAA (in violation of § 31-51m and § 31-
51q), and, if not for that, then for his 1/30/94 telephone
complaints to managers O'Brien and Heller (in violation of § 31-51q
only). We disagree. The record shows only that it was just barely
possible that the FAA investigated plaintiff's complaint, and there
was no evidence that, if any such investigation occurred, it
occurred under circumstances that would have suggested that
plaintiff had triggered the investigation. On this record, the
proffered admissible evidence was simply too weak and speculative
to permit a rational factfinder to infer that BEX fired plaintiff
for whistleblowing. Thus, summary judgment on this aspect of
plaintiff's legal malpractice claim was proper. See 5 R. Mallen &
J. Smith, Legal Malpractice, § 33.11, p. 87 (5th ed. 2000)("A
possibility is not sufficient to allow an issue to go to the jury,
even if the attorney's negligence impaired the client's ability to
marshal the necessary evidence."). See also, Witte v. Desmarais,
614 A.2d 116, 120-21 (N.H. 1992)(causation is not for jury where
reasonable minds can not differ on the outcome); Arnone v. Town of
Enfield, 831 A.2d 260, 267 (Conn. 2003)(holding plaintiff must
"produce sufficient evidence to remove the jury's function of
-15-
examining inferences and finding facts from the realm of
speculation").9
Similarly, we conclude that no reasonable jury could find that
BEX discharged plaintiff "on account of" the safety-related
statements that he made to his supervisors in the context of
complaining about his work schedule. See, e.g., Lowe v. Amerigas,
Inc., 52 F. Supp. 2d 349 (D.Conn. 1999)(citations omitted). On this
record, the evidence of plaintiff's tardiness that was before the
bankruptcy court remains essentially unimpeached. As the district
court correctly noted, the report of plaintiff's aviation expert
did nothing to undermine the evidence of plaintiff's tardiness.
Plaintiff's unsupported claims of fabrication add nothing to his
case. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 533-37
(1st Cir. 1996). The record shows that, saddled with a lengthy
commute, plaintiff was sometimes late for work notwithstanding
repeated warnings. Even when the evidence attorney Gannon did not
offer is factored into the picture, no reasonable jury could find
that plaintiff's complaints to the FAA or to BEX managers prompted
his discharge. Therefore, the district court did not err by
granting defendants summary judgment on plaintiff's legal
malpractice claims.
9
Contrast, LaFond v. General Physics Services Corp., 50 F.3d
165 (2d cir. 1995)(vacating summary judgment where plaintiff
himself informed employer of his whistleblowing activity). Here
plaintiff has not suggested that he told anyone at BEX that he had
complained to the FAA.
-16-
The appellees' motion to file a sur-reply brief is allowed.
The judgment of the district court is summarily affirmed. See Loc.
Rule 27(c).
-17-
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Filed 4/25/13 Pantazis v. Oakland Convention and Visitors Bureau CA1/5
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
FIRST APPELLATE DISTRICT
DIVISION FIVE
ATHENA PANTAZIS,
Plaintiff and Appellant,
v. A135256
OAKLAND CONVENTION AND
VISITORS BUREAU, (Alameda County
Super. Ct. No. RG11573958)
Defendant and Respondent.
In 1993, while employed by the Oakland Convention and Visitors Bureau
(OCVB1), Athena Pantazis sustained a workplace injury. She was terminated the
following year. She obtained a workers‘ compensation liability award in 1998 on her
complaint for retaliatory termination, and a monetary award in 2003. In the meantime,
her employer changed its name to the Oakland Convention and Visitors Authority. A
new corporation was formed under the name Oakland Convention and Visitors Bureau
(OCVB2) in 1999. Pantazis attempted to satisfy her judgment from the accounts of
OCVB2. The Workers‘ Compensation Appeals Board (WCAB) concluded that OCVB2
was not the judgment debtor and this court denied a writ petition challenging that
decision. Pantazis filed the instant civil action in the superior court in 2011, seeking to
hold OCVB2 liable for the debt under different legal theories. The trial court ruled that
the principles of res judicata barred the instant action. We agree and affirm.
1
I. BACKGROUND
The following facts are taken from WCAB decisions, of which the trial court took
judicial notice.
OCVB1 was established as a California corporation in 1979. The purpose of the
corporation was to promote tourism and convention business in the City of Oakland
(City).
OCVB1 hired Pantazis in June 1993. On November 20, 1993, Pantazis sustained a
foot injury while working as a receptionist and she was terminated in November 1994.
In July 1995, OCVB1 changed its name to the Oakland Convention and Visitors
Authority (hereafter OCVB1/OCVA). The name change reflected a merger of OCVB1‘s
activities with the operation of the City‘s convention center. OCVB1/OCVA also
operated a parking garage from 1995 to 1998.
In October 1995, Pantazis filed a workers‘ compensation claim alleging retaliatory
termination (in November 1994) in violation of Labor Code section 132a. She identified
her employer as the ―Oakland Convention and Visitors‘ Bureau.‖ In February 1998, a
liability award was issued in Pantazis‘s favor and against ―Oakland Convention and
Visitors Bureau.‖
In June 1999, a new corporation was formed with the name, ―Oakland Convention
and Visitors Bureau‖ (OCVB2). The stated purpose of the corporation was similar to
OCVB1/OCVA‘s purpose, to promote tourism and convention business in the City, and
at least one officer of OCVB1/OCVA became a director of OCVB2. However, OCVB2
hired a new executive director and staff, it had a different funding structure, and it never
operated the convention center or parking garage. The City shifted funding from
OCVB1/OCVA to OCVB2, apparently due to undercapitalization of the former;
however, there was a period during the formation of OCVB2 when the City was funding
both organizations. OCVB1/OCVA ceased operations in 1998 but the corporation was
never formally dissolved.
In February 2003, a monetary award was issued in Pantazis‘s favor in the amount
of $130,426.47, apparently against ―Oakland Convention and Visitors Bureau.‖ Pantazis
2
obtained a civil judgment on this award in Alameda County Superior Court and the
sheriff levied on OCVB2‘s bank accounts. OCVB2 sought review by the WCAB on the
issue of whether OCVB2 was the proper judgment debtor in the case.
In December 2004, the WCAB stayed enforcement of the award and directed the
WCJ to ―determine the correct entity that will actually be liable for [Pantazis‘s] . . .
award.‖ ―[T]he real issue comes down to whether the present entity, [OCVB2], is the
same entity that was found to have violated Labor Code section 132a. If not, there is an
outstanding issue as to whether [OCVB2] has liability under a legal theory, e.g. contract,
alter ego, etc., for that entity‘s violation of section 132a.‖
In 2006, the WCJ conducted an evidentiary hearing and ruled that OCVB1/OCVA
and OCVB2 were jointly and severally liable for the award. ―There remains sufficient
identity of officers and interest between the 1979 corporation and 1999 corporation to
require satisfaction of the final award by [OCVB2] as an ‗alter ego‘ and successor in
interest of the 1979 corporation.‖
In December 2006, the WCAB reversed, ruling that OCVB2 was a separate
organization from OCVB1/OCVA and there was no showing that OCVB2 was formed to
avoid the liabilities of OCVB1/OCVA. The WCAB rescinded certain aspects of the
WCJ‘s ruling, and substituted a finding that ―13. The identity of officers and interest
between the [OCVB1] and [OCVB2] is not sufficient to require satisfaction of the final
award by [OCVB2] as ‗alter ego‘ and successor in interest of [OCVB1].‖ The WCAB
dismissed OCVB2 as a party defendant. The WCAB denied Pantazis‘s petition for
reconsideration, and in July 2007 this court denied her writ petition challenging the
WCAB decision.1
1
We deny OCVB2‘s September 11, 2012 request that we take permissive judicial
notice of Pantazis‘s writ petition and OCVB2‘s answer because we conclude the content
of those papers are not relevant to the issues before us. (Mangini v. R.J. Reynolds
Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco
Cases II (2007) 41 Cal.4th 1257, 1276.)
3
Complaint
On May 3, 2011, Pantazis filed a complaint against both OCVB1/OCVA and
OCVB2. Pantazis alleges that she collected only $14,585.93 from OCVB1/OCVA and
was told there were no more funds available to satisfy her claim. She alleges
OCVB1/OCVA was for all practical purposes defunct, having been ―made insolvent,
property and assets out of which the judgment could be satisfied having been transferred
to [OCVB2] enabling Defendants to avoid [OCVB1] creditors.‖ She further alleges that
―the true extent of similarity between the membership, directorate and officers, and
business operations of [OCVB1/OCVA], and [OCVB2], was not disclosed by the Bureau
entities‖ during the workers‘ compensation proceedings. ―Evidence in those proceedings
was limited to testimony bearing on an issue raised by [OCVB2] under Minton v.
Cavaney (1961) 56 Cal.2d 576.‖
Pantazis states five causes of action: (1) ―Continuation – Surviving Corporation
Liable for Predecessor Debts‖; (2) ―De Facto Merger – Surviving Corporation Liable for
Debts‖; (3) ―Fraud on Creditors – Successor Liability for Predecessor Debts and
Obligations‖; (4) ―Assumption of Liability – Corporate Successor Liable for Predecessor
Liabilities and Obligations‖; and (5) ―Successorship Liability – Employment
Discrimination.‖
Demurrer
OCVB2 demurred to the complaint, arguing all of Pantazis‘s claims were barred
as res judicata, having already been litigated in the workers‘ compensation proceedings.
Pantazis argued in opposition that the 2006 WCAB decision ―was expressly limited to
different issues, namely, whether the [WCJ] had properly applied the doctrine of alter ego
(piercing the corporate veil) under Minton v. Cavaney (1961) 56 Cal.2d 576 and the
responsible party disclosure mandate of Coldiron v. Compuware Corp. (2002) 67 Cal.
Comp. Cases 289. . . . The issues raised in this case . . . are properly brought in a post-
judgment action seeking to amend the judgment—whether the new OCVB is a successor
to the old OCVB as a continuation or reincarnation . . . , by virtue of de facto merger . . . ,
4
due to a fraud on creditors . . . , or per the doctrine of successorship specific to
employment discrimination . . . .‖
The trial court ruled that Pantazis‘s claims were barred as res judicata. ―In this
action, [Pantazis] seeks to hold [OCVB2] liable for a 1998 workers‘ compensation award
against [OCVB1/OCVA]. In [Pantazis‘s] prior proceedings before the [WCAB], [she]
sought a determination that [OCVB2] was liable for the award against [OCVB1/OCVA],
as [OCVB1/OCVA‘s] purported alter ego and successor. [Citation.] The WCAB
determined that [OCVB2] was not the alter ego or successor of [OCVB1/OCVA], and
that determination is final. [Citation.] . . . [¶] . . . [T]he prior WCAB proceedings and this
action involve the exact same claim, i.e., whether [OCVB2] is liable for the
1998 workers‘ compensation award against [OCVB1/OCVA].‖
II. DISCUSSION
We review an order sustaining a demurrer de novo. (Ortega v. Contra Costa
Community College Dist. (2007) 156 Cal.App.4th 1073, 1080.) ―When a demurrer is
sustained, we determine whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff. [Citation.]‖ (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.)
― ‗Res judicata‘ describes the preclusive effect of a final judgment on the merits.
Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them.‖ (Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) ―A workers‘ compensation
judgment can have res judicata effect if it meets all the doctrine‘s other essential
elements. (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 633.) . . . [¶] . . .
[WCAB] is a constitutional court in California, and . . . its decisions may thus . . . be
5
given conclusive effect. [Citation.]‖ (Hughes v. Atlantic Pacific Construction Co. (1987)
194 Cal.App.3d 987, 1002.)
―A clear and predictable res judicata doctrine promotes judicial economy. Under
this doctrine, all claims based on the same cause of action must be decided in a single
suit; if not brought initially, they may not be raised at a later date. ‗ ―Res judicata
precludes piecemeal litigation by splitting a single cause of action or relitigation of the
same cause of action on a different legal theory or for different relief.‖ ‘ [Citation.] A
predictable doctrine of res judicata benefits both the parties and the courts because it
‗seeks to curtail multiple litigation causing vexation and expense to the parties and
wasted effort and expense in judicial administration.‘ [Citation.]‖ (Mycogen, supra,
28 Cal.4th at p. 897, italics omitted.)
For purposes of applying the res judicata doctrine, a ―cause of action‖ is
determined under the primary right theory. ―The primary right theory . . . provides that a
‗cause of action‘ is comprised of a ‗primary right‘ of the plaintiff, a corresponding
‗primary duty‘ of the defendant, and a wrongful act by the defendant constituting a
breach of that duty. [Citation.] The most salient characteristic of a primary right is that it
is indivisible: the violation of a single primary right gives rise to but a single cause of
action. [Citation.] . . . [¶] As far as its content is concerned, the primary right is simply
the plaintiff‘s right to be free from the particular injury suffered. [Citation.] It must
therefore be distinguished from the legal theory on which liability for that injury is
premised: ‗Even where there are multiple legal theories upon which recovery might be
predicated, one injury gives rise to only one claim for relief.‘ [Citation.]‖ (Crowley v.
Katleman (1994) 8 Cal.4th 666, 681–682, italics omitted.)
Pantazis argues the ―primary right‖ adjudicated in the workers‘ compensation
proceedings was her right not to be terminated for asserting her rights under the workers‘
compensation statutes. Because she is not asserting that right in the instant action, she
argues, the instant action is not barred as res judicata. Instead, she is now litigating a
different primary right: her right to enforce the workers‘ compensation judgment against
OCVB2. In support of this argument, Pantazis cites Brenelli Amedeo, S.P.A. v. Bakara
6
Furniture, Inc. (1994) 29 Cal.App.4th 1828 (Brenelli). In Brenelli, the plaintiff obtained
a money judgment against a corporation. (Id. at p. 1833.) After the corporation declared
bankruptcy and failed to satisfy the judgment, the plaintiff filed a second action against
the corporation and certain individual shareholders, alleging alter ego liability, fraudulent
conveyance, conspiracy to defraud and other claims. (Ibid.) The court held the second
action was not barred because it involved a different primary right: ―the prior action was
for breach of contract by the respondent corporation. . . . [T]he second suit seeks to
vindicate appellant‘s right to be free from the shareholders‘ tortious conduct which
unfairly deprived it of the value of its judgment.‖ (Id. at p. 1837; see id. at pp. 1837–
1839; see also Taylor v. Newton (1953) 117 Cal.App.2d 752 [affirming judgment
declaring company alter ego of judgment debtor without addressing res judicata issues];
McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 752
[court properly decided alter ego issue in context of post-judgment motion to modify
judgment and add judgment debtors].)
The critical difference between Brenelli, supra, 29 Cal.App.4th 1828 and this case
is that enforceability of the judgment against individual shareholders was not litigated in
the first action in Brenelli, whereas the enforceability of the judgment against OCVB2
was specifically litigated in the prior workers‘ compensation proceedings here. Having
already litigated the issue in the workers‘ compensation proceeding, she cannot do so
now. The final judgment in the workers‘ compensation action claim is res judicata,
foreclosing her instant claim.2
2
The procedural history of the instant case also distinguishes it from Allied Fire
Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150 (Allied Fire), another
case Pantazis discusses in her opening brief. Allied Fire holds that the res judicata
doctrine does not apply to a second action that is based on facts that arose or were
discovered (and could only have been discovered) after the filing of the complaint in the
first action. (Id. at p. 155.) Notably, however, Allied Fire observed that rights that arise
from facts that occur or are discovered after the filing of a complaint ―may be asserted in
a supplemental pleading‖ in that same action. (Ibid., italics added.) ―[I]f such a pleading
is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action.
[Citation.]‖ (Ibid., italics added.) Implicit in this holding is the converse conclusion: if a
7
Pantazis argues that res judicata applies only if the identical issue was decided in
the prior action. She argues the current action is not barred by the doctrine because she
raises new theories of OCVB2‘s liability for the workers‘ compensation judgment. In
support of this argument, Pantazis primarily cites Eichler Homes, Inc. v. Anderson (1970)
9 Cal.App.3d 224 (Eichler). Eichler, however, applies collateral estoppel (issue
preclusion), not res judicata (claim preclusion).3 Under the collateral estoppel doctrine,
the identical issue must have been actually litigated in the prior action in order for a
finding on that issue to be binding in the second action. (Id. at pp. 232–233.) Although
the Eichler court wrote expansively in dicta that ―[i]t is basic to the application of res
judicata or collateral estoppel that the issue of the earlier action be identical to that in
which the application is sought‖ (id. at p. 233), it is well established that under the res
judicata doctrine all that matters is that the same primary right was adjudicated in the
first action. ― ‗[I]f two actions involve the same injury to the plaintiff and the same
wrong by the defendant then the same primary right is at stake even if in the second suit
the plaintiff pleads different theories of recovery, seeks different forms of relief and/or
adds new facts supporting recovery.‘ [Citation.]‖ (Brenelli, supra, 29 Cal.App.4th at
p. 1837.) Even remedies, defenses and issues related to the extent of a defendant‘s
personal liability may be barred as res judicata if not raised in the first action. (See
supplemental pleading is filed in the first action, the plaintiff would be foreclosed from
asserting the same right in a subsequent action. By analogy, in the instant case it may not
have necessary to litigate the issue of OCVB2‘s liability before the WCAB. However,
once the issue was litigated in that proceeding, it became res judicata and could not be
litigated again in a subsequent action.
3
Pantazis also cites res judicata cases stating that the doctrine applies only to
issues that were actually tendered in the first action. However, these cases refer to
―causes of action‖ (primary rights), not factual issues, that were tendered in the first
action. The cases therefore are consistent with the rule that a primary right adjudicated to
final judgment in a prior action bars relitigation of the right in a second action, even if
framed in new legal theories. (See Concannon v. Smith (1901) 134 Cal. 14, 17–18;
Daugherty v. Board of Trustees of South Bay Union High School Dist. (1952)
111 Cal.App.2d 519, 521–522; City of San Diego v. California Water & Telephone Co.
(1945) 71 Cal.App.2d 261, 272, 275–276.)
8
Mycogen, supra, 28 Cal.4th at pp. 893, 896 [first action for declaratory relief and specific
performance barred second action on same primary right but seeking damages]; Sutphin
v. Speik (1940) 15 Cal.2d 195, 200–201 [defense not raised in first action could not be
raised in second action on same primary right]; Carroll v. Puritan Leasing Co. (1978)
77 Cal.App.3d 481, 487–488 [issue of whether judgment against married couple could be
collected from defendant wife‘s separate property was res judicata even though not raised
in first action because it related to the extent of her personal liability to the plaintiff].)
In the workers‘ compensation proceedings, the parties litigated Pantazis‘s right to
enforce the workers‘ compensation judgment against OCVB2 under any legal theory.
The WCAB charged the WCJ to determine whether OCVB2 was ―the same entity that
was found to have violated Labor Code section 132a,‖ or, if not, ―whether [OCVB2] has
liability under a legal theory, e.g., contract, alter ego, etc., for that entity‘s violation of
section 132a.‖ This charge clearly included contractual, corporate successor, tort, and
any other theories of liability. Thus, whether these are conceived as different legal
theories to enforce a single primary right (i.e., Pantazis‘s right to enforce the judgment
against OCVB2) or different primary rights (cf. Brenelli, supra, 29 Cal.App.4th at
pp. 1837–1839 [distinguishing between contract and tort primary rights]), all were
adjudicated in the workers‘ compensation proceedings. Indeed, the parties actually
presented evidence and legal arguments regarding the separate formal existence of the
corporations, the separate substantive nature of the corporation (including the identity of
their officers, directors and employees, their purposes and activities, their contractual
relationships with the City, and their sources of funding), and the bona fide or wrongful
purpose of forming the second corporation.
All of Pantazis‘s current claims seek to enforce the same primary right or rights.
Her first cause of action (―Continuation – Surviving Corporation Liable for Predecessor
Debts‖) alleges that OCVB1/OCVA caused the creation of OCVB2 and transferred its
assets to OCVB2 for inadequate consideration; accordingly, Pantazis alleges, OCVB2
must be deemed a continuation of OCVB1/OCVA that remains liable for its debts. Her
second cause of action (―De Facto Merger – Surviving Corporation Liable for Debts‖)
9
alleges based on the same facts that OCVB2 ―was created as a result of a de facto
merger‖ and therefore remains liable for OCVB1/OCVA‘s debts. Her third cause of
action (―Fraud on Creditors – Successor Liability for Predecessor Debts and
Obligations‖) alleges the intentional transfer of OCVB1/OCVA‘s business and assets to
OCVB2 was a fraud on OCVB1/OCVA‘s creditors and OCVB2 should be deemed liable
for OCVB1/OCVA‘s debts. Her fourth cause of action (―Assumption of Liability –
Corporate Successor Liable for Predecessor Liabilities and Obligations‖) alleges that
representations made by and to the City, OCVB1/OCVA and other parties involved in the
creation of OCVB2 between 1997 and 1999 included implied or express agreements that
OCVB2 would assume the liabilities and obligations of OCVB1/OCVA. Her fifth cause
of action (―Successorship Liability – Employment Discrimination‖) alleges that because
of the continuity between OCVB1/OCVA and OCVB2 and because OCVB2 was on
notice of Pantazis‘s claim at the time of its formation, OCVB2 should be required to
satisfy Pantazis‘s claim under fairness principles applicable to employment law. All of
these claims seek to enforce Pantazis‘s right to obtain satisfaction of judgment from
OCVB2 on theories of contract, corporate successorship, or tortious conduct. All
inferably rely on facts that occurred before the workers‘ compensation proceedings on
OCVB2‘s liability. Pantazis does not allege anything to the contrary. Pantazis alleges
that relevant facts were not disclosed by OCVB1/OCVA or OCVB2 during those
proceedings, but she does not allege they were not discoverable at that time.
Pantazis argues she was not given a fair opportunity to present these legal theories
during the workers‘ compensation proceedings, which she claims were limited to the alter
ego theory discussed in Minton v. Cavaney (1961) 56 Cal.2d 576 (Minton). (See Branson
v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 344 [res judicata doctrine does not
apply when party did not have fair opportunity to litigate issue in first action].) This
argument is not supported by the record. As observed ante, the WCAB expressly
charged the WCJ to determine whether OCVB2 was liable on the judgment under any
legal theory. Pantazis cites to a WCJ order asking for briefing on the Minton case
following the evidentiary hearing conducted by the WCJ. However, nothing in that order
10
indicates that the parties were restricted to the Minton alter ego theory when litigating
OCVB2‘s potential liability.
III. DISPOSITION
The judgment is affirmed. Pantazis must pay respondents‘ costs on appeal.
_________________________
Bruiniers, J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
11
| {
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} |
938 A.2d 225 (2007)
CITY OF PITTSBURGH, Appellee,
v.
FRATERNAL ORDER OF POLICE, Fort Pitt Lodge No. 1, Appellant.
Supreme Court of Pennsylvania.
Argued September 10, 2007.
Decided November 27, 2007.
Eric Carl Stoltenberg, Esq., Lightman Welby Stoltenberg & Caputo, Harrisburg, for Fraternal Order of Police Fort Pitt Lodge No. 1.
Stephen C. Richman, Esq., Anthony Charles Busillo, Esq., Markowitz & Richman, *227 Philadelphia, for Pennsylvania Professional Firefighters Association.
Hugh F. McGough, Esq., for City of Pittsburgh.
Richard D. Miller, Esq., Robert E. Durrant, Esq., Campbell, Durrant & Beatty, P.C., Pittsburgh, for Pennsylvania League of Cities and Municipalities.
BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.
OPINION
Chief Justice CAPPY.
The question presented in this matter is whether the Commonwealth Court's affirmance of the trial court's order is consistent with our decision in Appeal in Upper Providence Township, 514 Pa. 501, 526 A.2d 315 (1987). For the reasons that follow, we conclude that the Commonwealth Court's order is consistent with Upper Providence although our rationale differs from that offered by the lower court. We accordingly affirm.
The Fraternal Order of Police, Fort Pitt Lodge No. 1 ("FOP") is the recognized representative of the City of Pittsburgh Police Officers. The City of Pittsburgh ("City") is the employer of the City of Pittsburgh Police Officers. In 2002, the parties were unable to reach an agreement as to the terms of the collective bargaining agreement which was to take effect January 1, 2003. The parties therefore submitted the matter to interest arbitration[1] pursuant to Section Four of Act 111, 43 P.S. § 217.4.[2]
On February 14, 2003, the Act 111 interest arbitration board issued an award setting forth the new terms and conditions of employment governing the years 2003 and 2004 ("2003-04 Arbitration Award"). The provision which is at issue in the present appeal concerns the health insurance benefits which current employees can expect to receive upon their retirement. That provision states:
For those retiring after January 1, 2004, the City shall contribute toward the cost of husband and wife coverage . . ., for each employee so electing, an amount equal to the amount charged for such insurance by the carrier providing such coverage on the date of his/her retirement.
2003-04 Arbitration Award, 2/14/2003, at 4-5 (emphasis supplied) ("2003-04 retiree premium cap").
The FOP was displeased with, inter alia, the 2003-04 retiree premium cap. It appealed to the trial court requesting that it vacate the 2003-04 retiree premium cap. The trial court denied the FOP relief on this issue. First, the court stated that "[t]he cap placed by the Board on the City's contribution to the cost of health care coverage for officers retiring after January 1, 2004 carried forward and renewed a mutually agreed to contractual right in place since January 1, 1996." Tr. ct. op. at 6-7. It also stated that the 2003-04 retiree premium cap was valid as it affected only those police officers who were retiring at a future date.
*228 The FOP appealed to the Commonwealth Court. Among its issues on appeal was its challenge to the 2003-04 retiree premium cap. Specifically, the FOP asserted that via the 2003-04 retiree premium cap, the award violated the Contract Clauses of the United States and Pennsylvania Constitutions[3] as it worked an unconstitutional retroactive reduction in retirement benefits. Furthermore, the FOP asserted that the award violated 53 Pa.C.S. § 2962(c)(3) of the Home Rule Charter and Optional Plans Law prohibition against municipalities "diminish[ing] the rights or privileges of . . . any present municipal employee in his pension or retirement system."[4]
The Commonwealth Court denied the FOP relief. City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 850 A.2d 846 (Pa.Cmwlth.Ct.2004) ("FOP I"). The FOP I court disposed of the § 2962(c)(3) argument via a footnote. In this footnote, the FOP I court made no finding as to whether the 2003-04 retiree premium cap worked a diminishment with regard to pension or retirement system rights or privileges. Instead, it viewed § 2962(c)(3) as being extremely narrow in scope and that it merely "foreclose[d] a home rule charter [municipality] from unilaterally changing pensions by passing an ordinance; it does not foreclose reduction in benefits for employees through the collective bargaining process or an Act 111 arbitration award." FOP I, 850 A.2d at 853 n. 9.[5]
The FOP filed a Petition for Allowance of Appeal with this court. We granted allocatur, limited to the issue of whether the FOP I decision conflicted with this court's decision in Upper Providence, supra. We vacated the order of the Commonwealth Court insofar as it resolved the post-retirement health care benefits issue and remanded the matter to the Commonwealth Court for consideration and analysis of this Court's decision in Upper Providence, supra.
On remand, the Commonwealth Court again affirmed the order of the trial court. City of Pittsburgh v. Fraternal Order of Police, 911 A.2d 651 (Pa.Cmwlth.Ct.2006) ("FOP II"). The FOP II court recognized that the only issue before it was an interpretation and application of our Upper Providence decision. The FOP II court observed that Upper Providence primarily addressed the application of a provision in 53 Pa.C.S. § 2962(c)(3).[6] Thus, the FOP II court interpreted our remand order as *229 directing it to determine whether Upper Providence's interpretation of § 2962(c)(3) "precludes an arbitration panel from reducing post-retirement medical benefits in the future for officers who have not yet retired." FOP II, 911 A.2d at 653.
The FOP II court had two separate layers to its analysis. First, it determined that Upper Providence was distinguishable from the instant matter. The court opined that Upper Providence was limited to discussing whether an arbitration award could provide retirement medical benefits to employees who were already retired; the FOP II court believed that Upper Providence did not address whether current employees could have their future, anticipated retirement benefits impacted by an arbitration award. Thus, as the issue in the matter sub judice concerns only the future expectations of current employees, the FOP II court believed that Upper Providence had no application.
After concluding that Upper Providence had no application to the instant matter, the FOP II court did not terminate its analysis but instead went on to determine whether § 2962(c)(3) prohibits the alteration of the level of health insurance benefits that current employees could expect upon their retirement. The FOP II court reasoned that § 2962(c)(3) is not so violated. In analyzing this question, the FOP II court did not determine whether the 2003-04 retiree premium cap constituted a diminishment in health care benefits that current employees could expect upon retirement. Rather, the FOP II court focused on the latter portion of § 2962(c)(3) namely, whether health care benefits provided to FOP retirees in any fashion implicated "rights or privileges of . . . any present municipal employee in his pension or retirement system." The FOP II court concluded they did not. The FOP II court interpreted the "pension or retirement system" language to be confined to referring to only those pension or retirement systems that were statutorily created. Because the post-retirement health care benefits at issue in the matter sub judice were not part of a statutorily-created pension system, but rather were the creature of an arbitration award, it thus concluded that § 2962(c)(3) is not implicated.
The FOP filed a Petition for Allowance of Appeal. We granted allocatur on the issue of whether the Commonwealth Court's decision in FOP II conflicts with Upper Providence. In our order, we specifically directed the parties "to address whether the arbitrator's award approving a capping of contributions for healthcare benefits for future retirees constitutes a diminishment in benefits in a present employee's pension or retirement system." City of Pittsburgh v. Fraternal Order of Police, 592 Pa. 454, 926 A.2d 437 (2007).
As we commence our review of this matter, we are mindful that this is an appeal from an interest arbitration award made pursuant to Act 111. Accordingly, our review "is a very constricted one and is in the nature of narrow certiorari. Narrow certiorari allows us to inquire into only four aspects of an Act 111 arbitrator's award: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) an excess of the arbitrator's powers; or (4) deprivation of constitutional rights." Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969).[7]
The FOP focuses on the third prong of the narrow certiorari standard *230 arguing that the arbitrators exceeded their authority in fashioning the 2003-04 Arbitration Award. This third prong does not provide a portal to unlimited review of an Act 111 arbitration award. The "definition of what constitutes `an excess of an arbitrator's powers' [is] far from expansive." Pennsylvania State Police v. Pennsylvania State Troopers Ass'n, 559 Pa. 586, 741 A.2d 1248, 1252 (1999). We have stated that an arbitrator runs up against the limits of his powers when he orders an "illegal act." We have stressed that an arbitrators mere error of law does not constitute an "illegal act" and is "insufficient to support a court's decision to reverse an Act 111 arbitrators award." Id. Rather, an Act 111 arbitration award orders an illegal act only when it directs the public employer to do that which the employer could not do voluntarily.
Thus, our review of this matter is confined to determining whether the 2003-04 retiree premium cap amounted to the ordering of an illegal act. Even this limited issue telescopes down further. Our review is further channeled as this appeal is from the Commonwealth Court's decision following a remand from this Court. Our remand order directed the Commonwealth Court to apply Upper Providence to this matter. Thus, our review of this appeal is limited to determining whether the 2003-04 retiree premium cap constitutes an illegal act per Upper Providence.
Our next step then is to determine what Upper Providence held. At issue in that matter was whether an Act 111 interest arbitration panel exceeded its powers when it issued an award eliminating post-retirement health benefits for retirees. In that matter, the township and a lodge of the FOP had a series of collective bargaining agreements in which the township had contracted to pay for the premiums on post-retirement health care benefits for retired police officers. The parties could not agree on a collective bargaining agreement for the 1983-1984 term. The dispute was submitted to interest arbitration. One of the issues the township submitted for arbitration was whether the township should continue to pay for the health care benefit for retirees. The arbitration panel issued an award in which the benefit was maintained for 1983 but was discontinued in toto for 1984.
The FOP in Upper Providence argued that the award was illegal as it ran afoul of 53 Pa.C.S. § 2962(c)(3). We agreed. We reasoned that as the "arbitration award discontinued for 1984 the hospital and medical benefits after retirement until death, [it] thus `diminish[ed] the rights or privileges of any former municipal employe entitled to benefits or any present municipal employe in his pension or retirement system'" in violation of § 2962(c)(3). Upper Providence, 526 A.2d at 322 (emphasis in the original).[8]
Thus, we must determine whether the 2003-04 retiree premium cap constituted a "diminish[ment of] the rights or privileges of . . . any present municipal employee in his pension or retirement system" and thus violated § 2962(c)(3). This prohibition *231 can be parsed into two parts. The first is whether the provision in question constitutes a "diminishment"; the second is whether this diminishment impacted a benefit conferred by a "pension or retirement system". The FOP II court focused on the latter of these two points, namely, whether the 2003-04 health care provision impacted the FOP's constituents' rights and privileges in a pension or retirement system. As noted supra, the FOP II concluded that these post-retirement health care benefits were not part of a "pension or retirement" system as they were contractually created and not statutorily conferred. We make no pronouncement on the propriety of this reasoning and explicitly leave this issue for another day. Rather, our resolution of this matter hinges on the resolution of whether the 2003-04 retiree premium cap constituted a "diminishment".
We believe that in answering whether the 2003-04 retiree premium cap constitutes a "diminishment", we necessarily must compare it with comparable provisions in preceding agreements. By doing so, we can discern any differences. In the event that differences are detected, we would then analyze whether the differences altered a benefit conferred previously and whether this alteration constituted a diminishment or augmentation.
The first step of this analysis is to examine the contracts between the parties that immediately preceded the 2003-04 Arbitration Award. We look first at the Working Agreement which governed the parties' working relationship between January 1, 1998 through December 31, 2000 ("the 1998-2000 Working Agreement"). In the portion concerning insurance issues, the 1998-2000 Working Agreement stated that
any employee who retires after January 1, 1996 will be allowed to continue his or her medical insurance coverage for himself/herself and spouse only, through the City. The City shall contribute towards the cost of this husband and wife coverage, for each employee so electing, an amount equal to the amount charged for such insurance by the carrier providing such coverage on the date of his/her retirement.
1998-2000 Working Agreement at 107-08 (emphasis supplied).
Following the expiration of the 1998-2000 Working Agreement, the parties entered into a new Working Agreement that was effective from January 1, 2001 to December 31, 2002 ("2001-02 Working Agreement"). The 2001-02 Working Agreement also contained a provision relative to health insurance for retirees. That provision stated, in pertinent part:
Any employee who retires after January 1, 1996 will be allowed to continue his or her medical insurance coverage for himself/herself and spouse only, through the City. The City shall contribute towards the cost of this husband and wife coverage, for each employee so electing, an amount equal to the amount charged for such insurance by the carrier providing such coverage on the date of his/her retirement.
2001-02 Working Agreement at 70 (emphasis supplied).
We now turn to 2003-04 retiree premium cap. As noted supra, it states that:
For those retiring after January 1, 2004, the City shall contribute toward the cost of husband and wife coverage . . ., for each employee so electing, an amount equal to the amount charged for such insurance by the carrier providing such coverage on the date of his/her retirement.
2003-04 Arbitration Award, 2/14/2003, at 4-5 (emphasis supplied).[9]
*232 A comparison of the underscored language in the 2003-04 retiree premium cap with comparable provisions from the 1998-2000 Working Agreement and the 2001-02 Working Agreement reveal that the provisions are identical with regard to the issue of premiums to be paid for retiree healthcare. As there is no material difference between the 2003-04 retiree premium cap and comparable provisions in the preceding two working agreements, then we cannot conclude that the 2003-04 retiree premium cap worked a diminishment. As cogently stated by the trial court, this 2003-04 retiree premium cap merely "carried forward and renewed a mutually agreed to contractual right in place since January 1, 1996." Tr. ct. op. at 6-7. Thus, as the 2003-04 retiree premium cap did not work a diminishment, there is no tension between this provision and § 2962(c)(3). Concomitantly, affirmance of the trial court's order is not in tension with Upper Providence as this matter is wholly distinguishable from Upper Providence. In Upper Providence, the court was confronted with a true diminishment in health care coverage provided for retirees and it thus found that the award violated § 2962(c)(3).[10]
The FOP, however, strenuously argues in its brief that the 2003-04 retiree premium cap did in fact work a diminishment of a future retiree's rights and privileges. The FOP does not go so far as to make the quixotic argument that the language of the 2003-04 retiree premium cap differs from the comparable provisions in the preceding two working agreements. Rather, the FOP contends that in practice, the City has historically provided fully paid medical benefits to retired police officers even though contracts between the parties have not compelled it. The FOP recounts that in 1991, an Act 111 grievance arbitration award compelled the City to continue its past practice of paying the premiums on retiree health care policies even though the contract between the City and the FOP specifically provided that the City had no such obligation. See FOP's brief at 7 (referencing the August 7, 1991 Grievance Arbitration Award of Arbitrator O'Connell). The FOP goes on to state that following this 1991 grievance arbitration award, the City "continued to provide post-retirement medical benefits to retiring officers . . . up to the effective date of the 2003-04 [Arbitration Award]." FOP's brief at 7.[11]
*233 This line of attack is simply not responsive to the question of whether the arbitrators exceeded their powers. In fact, it does not concern the arbitrators' actions at all. Instead, it focuses on the City's ostensible application and interpretation of this provision following the entry of the 2003-04 Arbitration Award. Such an argument regarding the City's interpretation of the 2003-04 retiree premium cap provision has no place in our analysis of whether the arbitrators committed an illegal act when they merely readopted the premium cap for the 2003-04 Arbitration Award.[12]
For the foregoing reasons, we conclude that the 2003-04 retiree premium cap did not constitute a diminishment and thus the order of the Commonwealth Court is affirmed.
Justice CASTILLE, SAYLOR, EAKIN, BAER, Justice BALDWIN and Justice FITZGERALD join the opinion.
NOTES
[1] "`Interest arbitration' is the arbitration which occurs when the employer and employee are unable to agree on the terms of a collective bargaining agreement." Pennsylvania State Police v. Pennsylvania State Troopers Ass'n (Betancourt), 540 Pa. 66, 656 A.2d 83, 85 n. 2 (1995). In contrast, "`[g]rievance arbitration' is the arbitration which occurs when the parties disagree as to the interpretation of an existing collective bargaining agreement."
[2] Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10. Act 111 applies only to police and fire personnel.
[3] See U.S. CONS.ART. I, § 10; PA. CONST. ART. I, § 17.
[4] Section 2962 details the limitations on municipal powers placed upon home rule entities. It provides, inter alia, that a home rule municipality shall not:
* * * * * *
(3) Be authorized to diminish the rights or privileges of any former municipal employee entitled to benefits or any present municipal employee in his pension or retirement system.
[5] The FOP I court also rejected the FOP's constitutional claims. The court opined that an interest arbitration panel had the authority to alter benefits awarded to future retirees' benefits in previous contracts. Id. at 852-53. It flatly rejected the FOP's constitutional arguments, stating that "[i]f we were to adopt the FOP's position, it would mean that collective bargaining contracts and Act 111 boards could only award increased benefits and could never reduce any benefits." Id. at 853. As will be discussed infra at footnote 7, these constitutional issues are not before us.
[6] As noted by the Commonwealth Court, at the time Upper Providence was decided, § 2962 was numbered 53 P.S. § 1-302(b)(iii). For the sake of clarity, the Commonwealth Court consistently referred to this provision as § 2962 rather than utilizing both the § 2962 and the § 1-302 enumerations. We fill follow suit and refer only to § 2962.
[7] The narrow certiorari test applies when reviewing appeals from both grievance and interest arbitration awards. See Pennsylvania State Police v. Pennsylvania State Troopers Ass'n, 656 A.2d 83 (1995).
[8] It is important to note that Upper Providence did not issue any holding regarding constitutional issues. While it did muse in dicta that such a diminishment in promised post-retirement health care benefits could be unconstitutional per the Contracts Clause, it also specifically noted that no constitutional issue was raised in that matter. Upper Providence, 526 A.2d at 322 n. 6.
Since our review in the matter sub judice is confined by the scope of our initial remand order to the Commonwealth Court limiting the FOP II court to a consideration of Upper Providence, we, too, will not issue any constitutional pronouncements.
[9] Although not before us, we note that the above provisions leave open the question of whether 2003 retirees were also subject to the same retiree premium cap. We find that they were because the 2003-04 Arbitration Award states that "[a]ll terms and conditions of employment encompassed by the prior Agreement [i.e., the 2001-2002 Working Agreement] or in effect during its term, and that are not altered by this Award, shall remain in full force and effect." Id. at 10. Because, as noted, the retiree premium cap was reflected in the 2001-02 Working Agreement, and is not otherwise altered by the 2003-04 Award, employees who retired in 2003 would have been subject to it, notwithstanding that the challenged language facially only covers employees retiring after January 1, 2004.
[10] We issue no pronouncement on the soundness of the Commonwealth Court's rationale for distinguishing Upper Providence from the matter sub judice.
[11] In support of its position that the City has in practice paid the premiums for retiree health care policies, the FOP cites to a forty-one page swath of the reproduced record. Appellant's brief at 7-8 (citing R.R. at 610a-651a). This portion of the reproduced record covers several documents: the last page of the issues submitted by the City for the 2003 interest arbitration session; the entirety of a document entitled "City of Pittsburgh Financial Position"; and a portion of a document entitled "PGH 21 Pittsburgh for the 21st Century". Our review of these forty-odd pages reveals one passage which supports the FOP's position. That passage, which is in the PGH 21 report, stated that "[t]he police contract requires all pre-age 65 retirees to pay any post-retirement increase in health care insurance costs over the City's cost at the point of retirement. This provision has not been enforced." R.R. at 651a. For purposes of this opinion, we will assume arguendo that the City did indeed have a practice of paying the premiums from 1991 up until 2003.
[12] We note that there is a proper forum for questions such as whether the City is improperly interpreting and applying the 2003-04 retiree premium cap in that it is enforcing this premium cap where historically it has not done so. That proper forum is not in an appeal from an interest arbitration award such as the matter sub judice; rather, it is grievance arbitration. Pennsylvania State Police v. Pennsylvania State Troopers Ass'n (Betancourt), 540 Pa. 66, 656 A.2d 83, 85 n. 2 (1995) ("`Grievance arbitration' is the arbitration which occurs when the parties disagree as to the interpretation of an existing collective bargaining agreement.")
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342 F.2d 586
144 U.S.P.Q. 288
WELSH CO., Plaintiff-Appellee,v.Victor A. CHERNIVSKY, d/b/a Comfy Babe Company, Defendants-Appellants.
No. 14509.
United States Court of Appeals Seventh Circuit.
Jan. 21, 1965, Rehearing Denied March 30, 1965.
Bradford Wiles, William R. McNair, Chicago, Ill., for defendants-appellants.
Lawrence H. Cohn, St. Louis, Mo., Edwin S. Booth, Chicago, Ill., for appellee.
Before DUFFY, KILEY, and SWYGERT, Circuit Judges.
KILEY, Circuit Judge.
1
Welsh Company sued for a declaration that defendant's patent, No. 2,848,040, was invalid and not infringed by a baby chair manufactured by Welsh. Chernivsky counterclaimed, charging infringement. The district court found the patent valid but not infringed, entered judgment accordingly, and this appeal followed. We think the court's judgment is right as to validity and erroneous as to infringement.
2
The patented article in suit is an infant seating device consisting of a base member and a back rest member formed of spring wire. These parts are so adapted that they may be disconnected for storing and shipping. The union of the two parts is by means of sleeves on the ends of the back rest member into which the extremities of the base member are inserted. Comprising the third component of the structure is the seat, which consists of a fabric bag or envelope which slips over the back rest member. When so installed there is a fullness at the bottom of the fabric forming a pocket-like dip which receives the baby's buttocks. A cloth belt, loosely attached to each side of the back frame, is fastened to the fabric, at the front, to prevent the infant from falling out, and at the center of the belt extending downward to the bottom of the fabric is attached another cloth belt to separate the legs of the infant. The back frame is U-shaped, with the arc at the top having the function of pulling the fabric into a safe resting place at the center for the baby's head.
3
Chernivsky, while claiming that his and the Welsh chairs are equal for all practical purposes, admits that because the words of his claim 1 do not read upon the Welsh chair, a showing of infringement requires application of the doctrine of equivalents.
4
The decision below was that Chernivsky's patent monopoly was restricted to a narrow improvement over the prior art and that every feature of the accused device of Welsh 'embodies elements all known in the prior art,' but does not include the frictional locking feature 'so vital' to the patent in suit. The court refused to apply the doctrine of equivalents in favor of Chernivsky and against the Welsh device, on the ground that Chernivsky had narrowed his claims to the locking feature in order to meet the examiner's objections and thus, under the doctrine of file wrapper estoppel, is precluded from expanding his claims by the doctrine of equivalents to cover the elements surrendered by amendment.
5
We shall examine the facts with respect to infringement before considering the effect of file wrapper estoppel on Chernivsky's claim to equivalence. Chernivsky argues that Welsh duplicated, with 'trivial changes,' the 'desirable features' of his patent to avoid the language of claim 1, but that there is infringement since both devices 'do the same work in substantially the same way, and accomplish substantially the same result * * *.' Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929). On oral argument before this court counsel for Welsh admitted that Welsh knew of the Chernivsky patent and attempted to design around it.
6
The rear cross-bar of the Welsh base is slightly lower than and exceeds slightly in width the base of Chernivsky's; the sides of both bases are slightly off parallel from back to front, the Welsh slightly outward and the Chernivsky slightly inward; the sides of the Welsh base are a little longer than those of the Chernivsky base; the bends at the ends of the sides on the Welsh base are shorter than those on the Chernivsky base and turn forward, while Chernivsky's flare outwardly without the forward turn; the Welsh sides turn upward at a slightly wider angle than Chernivsky's so that the sides of the Welsh back frame are in a more upright line than Chernivsky's, resulting in a less backwardly inclined whole.
7
The sides of the base frames, in both chairs, must be sprung inwardly in order to fit the extremities of the base into the sleeve extremities of the back frame. The base extremities of the Welsh device are from a front view substantially perpendicular to the plane of the base, while the extremities of the Chernivsky base angle inwardly. The tips of the extremities of the Chernivsky base then flare outwardly. The result of this outward turn at the tips of the Chernivsky base extremities is a tighter spring fit between the base and back frames. This is the 'frictional locking' device referred to by the district court.
8
The bases of both devices are designed to give stability. The Chernivsky device accomplishes this through the rear crossbar and the comparatively extensive outward flaring of the front ends of the base to compensate for the comparatively narrower chair. The Welsh device compensates for lack of outward flaring front ends by having its cross-bar at the rear of the base wider and the sides extending outward toward the front so that they are several inches longer than the Chernivsky sides before turning inward, and at the point where they begin to turn the base of the Welsh device is about four inches wider than the Chernivsky base. The resting points of contact are slightly different, but in sum are about equal. The Chernivsky connection between the base and back frame is tighter and holds together-- at least when not occupied-- better than the Welsh device.
9
As we have stated, the back frames of both chairs are slightly outward from parallel as they reach toward their extremities, and the backward incline of the Chernivsky device is greater, occupied or not. The top of the back frame in the Chernivsky device is a broad curve resulting, when the chair is occupied, in a depression in the center of the fabric to accommodate the baby's head and maintain it in a safe center place. The top of the back of the Welsh device is not curved, but it is a cross piece which extends backwardly from each side to form a shallow V. When the chair is occupied this has the same result as the Chernivsky back frame.
10
We conclude that the Welsh device does accomplish the same result as the patented device by substantially the same means and that it is the equivalent thereof. Independent Pneumatic Tool Co. v. Chicago Pneumatic Tool Co., 194 F.2d 945 (7th Cir.1952).
11
The question now is whether there is any room in the present case for application of the doctrine of equivalents, in view of the file wrapper estoppel doctrine. Because the district court's findings on the issue of file wrapper estoppel were based solely on documentary evidence, all of which is before us, those findings have not the same degree of finality which ordinarily attaches to findings of fact under Rule 52(a) of the Federal Rules of Civil Procedure. Taylor-Reed Corp. v. Mennen Food Products Co., 324 F.2d 108, 111 (7th Cir.1963). We hold that the district court's finding that Chernivsky narrowed his claim to the so-called 'frictional locking device' is clearly erroneous and this finding was in part induced by an erroneous application of the law. It must therefore be set aside.
12
Chernivsky originally filed ten claims, the first two of which, as amended, are set out in the margin.1 Because of rejections by the examiner on the basis of cited prior art, Chernivsky twice amended, and finally cancelled, these claims and substituted for them new claims 1, 2 and 3. After a conference with the examiner the patent issued on the claims. No claim of infringement is made with respect to claim 2, and claim 3 depends upon claim 1, which is set out in the margin.2
13
It can be seen that patent claim 1 is essentially an amendment of original claim 2, and that as granted claim 1 is broader, rather than narrower, than original claim 2. Original claim 2 described the extremities of the ends of the base as 'flaring slightly outward out of line with the hollow extremities of the back rest,' while patent claim 1 describes these extremities only as 'inclined slightly out of line with the said hollow extremities.' The meaning of the term 'extremities of the ends' here becomes important. This term is used twice in patent claim 1, preceded the second time by the word 'said.' A normal reading of the claim, therefore, would attribute the same meaning to the term in both instances. The first use of the term occurs in the following phrase:
14
'* * * having front ends with angular return bends extending outwardly and downwardly to form two front legs and the extremities of the ends extending upwardly and tilted backwardly * * *'
15
Reading the description against the Chernivsky chair makes it clear that the term in question refers to the entire segment of the base to which the back is attached. It must, then, have that same meaning in the second reference, and the phrase does not, as Welsh would have us read it, refer only to the outwardly bent tips of those segments. Patent claim 23 also contains the term 'said extremities of the ends of the base,' but there it is conjoined with 'flare slightly outward' and does refer to the tips of the segments in question. The term 'extremities of the ends' was used ambiguously, but we have resolved the ambiguity in what appears to us to be the most reasonable manner and one which is consistent with the presumption of the validity of the patent. If the term in claim 1 meant only the bent tips, then claim 2 would be practically redundant and superfluous.
16
In 'remarks' filed with the substituted claims Chernivsky's attorney stated that 'the applicant is not attempting to claim broadly any arm or other member which may be sprung into engagement with another. * * *' Both Welsh and the district court took this statement as indicating that Chernivsky was limiting his claim solely to the 'frictional locking' device. The context of the patent and file wrapper shows, however, that the claim was not actually narrowed and that the statement in question was meant to indicate only that the springing action was claimed as part of the combination of parts which make up the Chernivsky patent.
17
The district court's findings and conclusion on the issue of file wrapper estoppel were closely related to, and dependent upon, its findings as to the prior art. The court stated that
18
'In view of the narrow construction defendant necessarily placed on his claims in the Patent Office to distinguish them from the prior art, his claims do not cover the alleged infringing device which in each and every feature thereof embodies elements all known in the prior art.'
19
In support of this conclusion the court cited the case of Standard Mirror Co. v. H. W. Brown, Inc., 113 F.2d 379 (7th Cir. 1940), where it was held that where a patent 'depends for its novelty over the prior art upon a single limited feature of construction, the claims cannot be expanded by any doctrine of equivalents to cover a device which lacks that single essential feature.' The Standard Mirror case, however, and the cases which follow it, Jacwil Mfrs. v. Batesville Casket Co., 311 F.2d 38 (7th Cir.1962), cert. denied 372 U.S. 942, 83 S.Ct. 937, 9 L.Ed.2d 968 (1963); Fife Mfg. Co. v. Stanford Engineering Co., 299 F.2d 223 (7th Cir. 1962); Lewis v. Avco Mfg. Corp., 228 F.2d 919 (7th Cir.1956); have in common a fact which distinguishes them from the case at hand. In those cases the patented device contained only a single, limited improvement over a preexisting device in the prior art, and a broader construction of the claims than that allowed by the court would have rendered the patent invalid on the prior art. In the case before us, on the other hand, there was no single device in the prior art which embodied, except for the coupling device, all of the elements of the Chernivsky device.
20
We think the root of the district court's error was in considering Chernivsky's claim 1, upon which his claims 2 and 3 rest, against the prior art piece by piece instead of considering the device totally, without properly applying the well-established principle that a combination of old elements in a manner that is unobvious to one skilled in the trade and which produces a new and useful result may be patented. Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034 (1909); Loom Co. v. Higgins, 105 U.S. (15 Otto) 580, 591, 26 L.Ed. 1177 (1881); Kaakinen v. Peelers Co., 301 F.2d 170 (9th Cir.), cert. denied 371 U.S. 823, 83 S.Ct. 40, 9 L.Ed.2d 62 (1962); Anderson Co. v. Sears, Roebuck and Co., 265 F.2d 755 (7th Cir. 1959); Brown v. Brock, 240 F.2d 723 (4th Cir.1957); Weller Mfg. Co. v. Wen Products, Inc., 231 F.2d 795 (7th Cir. 1956); Blaw-Knox Co. v. I.D.Lain Co., 230 F.2d 373 (7th Cir.1956). Since a combination of old elements alone may be enough to constitute a patentable device, the addition of a new element to the combination should not, as the district court seemed to conclude, result in a limitation of the claims to the new element.
21
Considering the prior art discussed by the district court, we think the Pribil patent did not read on Chernivsky's, considered as a whole, since, among other things, in the Pribil device the infant lies down; the Blackledge patent's back rest does not accommodate small infants; Brown resembles Chernivsky's patent more closely, but has not the latter's detachable light base and back frames nor the resiliency; and Oullette has not the light detachable base and back frames nor the resiliency.
22
Each of the patents contains one or more elements which are substantially similar to Chernivsky's. But there was no combination of parts into any whole which is substantially similar to the patent in suit. Presumably Chernivsky, observing the prior art, drew ideas from the various devices and conceived the idea of a novel, useful and unobvious baby support which met a social need. This synthesis of ideas into a composite creation does not permit a competitor to separate this composite into the old elements that went into it and by slight modifications of each element avoid infringement by omitting the novel element from its imitating device.
23
We agree with the district court's conclusion that the commercial success achieved by Chernivsky's baby support with only modest promotion and the fact that still another competitor copied it in virtually every detail, while not sufficient of itself to establish the validity of the patent, Jungersen v. Ostby & Barton Co., 335 U.S. 560, 567, 69 S.Ct. 269, 93 L.Ed. 235 (1949), does support the inference that the device was unobvious and filled a need. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721 (1944); H. W. Gossard Co. v. J. C. Penney Co., 304 F.2d 515 (7th Cir.1962). Our difference with the district court is, of course, only over the scope of the patent. We think the inference is justified that such commercial success was not achieved solely because of the novel locking device, but because of the combination of all of the elements which comprised this new and useful whole.
24
For the reasons given, the judgment of the district court as to infringement is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.
25
Reversed and remanded.
26
SWYGERT, Circuit Judge (dissenting).
27
Reluctantly, I must disagree with Judge Kiley's opinion. I think that the district court properly applied, the doctrine of file wrapper estoppel in denying infringement.
28
The district judge made extensive findings about the prior art and also about the history of the prosecution of the Chernivsky patent.1 In addition to these findings, the file wrapper indicates that the patentee's first ten claims were rejected because they were anticipated by the Ouellette patent No. 2,324,421 granted July 13, 1943, the Barker patent No. 2,567,418 granted September 11, 1951, and the Brown patent No. 619,027 granted March 2, 1959 (Great Britain). Twice Chernivsky attempted to have these claims allowed after amendment and twice the examiner rejected the amended claims because of the prior art. Finally, Chernivsky withdrew the original claims and substituted new claims that eventually became patent claims 1, 2, and 3.
29
In filing the new claims Chernivsky wrote the patent office in pertinent part:
30
'This application has been amended as a result of a conference courteously granted by the Assistant and Chief Examiners in charge of the application at which it was pointed out that the present invention differs entirely from the references of record in providing a wire base and a rear back portion in which the extremities of the ends of the base are sprung out of line with the ends of the back which are adapted to be engaged thereby, the corresponding ends of the back being provided with sleeves projecting beyond the ends into which the bent ends of the base may be sprung, thereby engaging and holding connection with the back more firmly, providing greater frictional engagement and fitting tightly together but allowing them to be slipped into and out of engagement with each other when desired.'
31
Thus, Chernivsky narrowed his claims to a frictional locking feature. That this feature was the inventive distinction of his structure is also indicated by the claims themselves. All three are identical except for a different description in the wording of the frictional locking feature.
32
During the course of his decision, the district judge said:
33
'The file wrapper history plainly reveals that defendant gave a limited construction to his claims in order to obtain his patent. 'An examination of the file wrapper leaves no doubt that this patent was allowed only after defendant gave a very narrow scope to its claims. It is apparent from the successive rejections that without the frictional locking feature involving the flared stubs of the base member there was no invention. 'There is but one inference which can be reasonably drawn from the events preceding the issuance of the patent in suit and it is that defendant was but a slight improver in a crowded field where many others had sown. It is evident that broader interpretation of his claims would render them invalid on the prior art. 'The Court is convinced that the patent is not infringed by the plaintiff's device. This conclusion is based upon the doctrine that a patentee who is only a narrow improver, as is the case with the instant patent, has a monopoly restricted to that narrow impovement. 'Having narrowed the scope of his claims in order to obtain the patent, he (defendant) made his precise form a material element of his invention and cannot expand the scope of his claims by construction or resort to the doctrine of equivalents. * * * 'Plaintiff's baby support does not embody the frictional locking feature so vital to defendant's patent. It follows that 'where a patent depends for its novelty over the prior art upon a single limited feature of construction, the claims cannot be expanded by any doctrine of equivalents to cover a device which lacks that single essential feature.' (Standard Mirror Co. v. H. W. Brown, Inc., 113 F.2d 379 (7th Cir. 1940)).
34
In discussing what it considers to be 'the root of the district court's error,' the majority says that the district judge failed to apply 'the well- established principle that a combination of old elements in a manner that is unobvious to one skilled in the trade and which produces a new and useful result may be patented.' I do not disagree with this principle as enunciated. I think, however, that its application here is improper. Although a novel combination of old elements 'may' constitute invention, the Chernivsky patent was neither claimed nor granted on that basis. Thus, whether or not Chernivsky could have been granted a patent on that basis is irrelevant. The inventive-level characteristic of his structure resided solely in the frictional locking feature. The patent was granted only after the applicant had thus limited his claims. To construe the patent as this court now does is, in effect, to give Chernivsky a new patent-- broader than the one which was granted to him.
35
I would adopt the reasoning of the district court and affirm the judgment.
1
1. In a resilient baby support, a margin frame spring wire base having parallel sides connected at the rear by an offset crosspiece forming a rear contact portion and having front ends with angular return bends extending outwardly and downwardly to form two front legs and the extremities of the ends extending upwardly and tilted backwardly, and a separate back rest spring wire margin frame having two parallel sides connected by a rounded portion at corresponding ends and the other ends having hollow extremities into which the said extremities of the ends of the base fit tightly but removably to hold the back rest over the base at an upward inclination rearwardly from the front of the base
2
In a baby support in accordance with claim 1, the said extremities of the ends of the base flaring slightly outward out of line with the hollow extremities of the back rest providing greater stability so the extremities of the base must be sprung inwardly to engage them with the said hollow extremities thus increasing frictional engagement
2
1. In a resilient baby support, a marginal frame, a spring wire base having substantially parallel sides connected at the rear by an offset cross piece forming a rear contact portion and having front ends with angular return bends extending outwardly and downwardly to form two front legs and the extremities of the ends extending upwardly and tilted backwardly, a separate back rest spring wire marginal frame having two parallel sides connected by a rounded portion at corresponding ends and the other ends having hollow extremities, the said extremities of the ends of the base inclined slightly out of line with the said hollow extremities of the back rest so the extremities of the base must be sprung to engage in the hollow extremities and fitting tightly but removably therein to hold a back rest over the base at an upward inclination rearwardly from the front of the base
3
2. A baby support in accordance with claim 1, in which the said extremities of the ends of the base flare slightly outward out of line with the hollow extremities of the back rest providing greater stability of the wire base when set up in supporting position
1
Findings pertinent to these matters include the following:
Infant seating devices of the type involved in this action are disclosed in Pribil patent No. 2,460,308 granted February 1, 1949, and in the Blackledge patent No. 704,774 granted July 15, 1902.
The Pribil patent discloses a baby support having a resilient frame structure which provides a flexible support. It is similar in construction and function to the baby seat of the Chernivsky patent in suit. It differs therefrom in that the backrest and base parts are not detachable, one from the other.
The Blackledge patent discloses a resilient baby support having a backrest which is detachably connected to a base member; it does not employ plug and tubular socket means for detachably connecting the frame members together.
The prior patent art contains examples of seating devices constituted by separable parts having their end portions connected together by plug and tubular socket means. The Examiner rejected original claims 1 through 10 on the grounds that no invention is involved in providing a backrest having hollow extremities in which fit the ends of a separable base in view of Brown v. Barker, Fig. 5. Plaintiff acceded to this contention by cancelling those claims.
The concept of a sleeve connection between mating extremities of members of a supporting device, wherein the members have to be sprung together before effecting an interfitting relationship is old in the art, as shown in the Watrous patent.
The connecting means between the base and backrest frames of the Chernivsky patent are characterized by an outward bend or flaring of the extremities of the base frame so that they are not in straight alignment with the tubular socket ends of the backrest frame when their extremities initially spring together. Consequently the said end portions do not slip freely and easily into interfitting relationship when merely sprung together. On the contrary the mating end portions, disposed at an angle one to the other, must be additionally stressed to bring them into straight alignment, before they can be fitted together.
The applicant described this special characteristic in distinguishing from the prior art saying: 'However, in the present invention, the applicant is covering an entirely different invention, namely, a provision of base and backrest parts having extremities which are secured together but in which the respective ends are neither parallel nor do they extend in the same direction, but the ends of one part must be sprung in order to engage with a hollow sleeve or with the ends of the other part to which they are connected. This construction is planned and deliberate since it results in an increased frictional contact between the parts and once the ends are sprung to engage with the other corresponding ends, it is difficult to disengage them without a reversal of the springing and sliding operation in connecting them.'
In a later amendment defendant Chernivsky reiterated the distinguishing characteristic aforesaid and expressly disclaimed a construction wherein the parts may be simply sprung together and slid into interfitting relationship, as disclosed in the prior art Watrous patent, * * * and in the Barker patent, Fig. 5. The applicant Chernivsky expressly disclaimed such old and well-known sleeve connections stating: 'The applicant is not attempting to claim broadly any arm or other member which may be sprung into engagement with another. * * *'
The plaintiff's device * * * is so constructed that when the extremities of the backrest and base members are brought into mutual registration the end portions are substantially in straight alignment so that they slip easily together, and without requiring an additional force to align the end portions. In this respect plaintiff's device accords with the disclosure of the prior art Watrous patent.
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March 13, 1975
The Honorable Ed J. Harris Opinion No. H- 552
Chairman
Election Committee Ret Proper fee for copies of
House of Representatives campaign expense reports.
P. 0. Box 2910 V. T. C. S., art. 3930, sets.
Austin, Texas 78767 3 and 9; V. T. C. S., art. 3930(b),
sec. l(D).
Dear Chairman Harris:
You have requested ouz opinion on the following questions:
1. May a county clerk base the fees he charges for
copies of the campaign expense reports filed with his
qffice by candidates for public office under the provi-
sions of Chapter 14, Texas Election Code, on the
“reaspnable fees” provision of Subdivision (9) of Art.
3930, Vernon’s Annotated Civil Statutes, [or] is he
mandated by Section (3) of that Article to charge a
fee of one dollar ($1.00) per page for such reports?
2. It copies of the campaign finance reports
called for by Chapter 14, Texas Election Code, are
covered by the provisions of Section (9) of Art. 3930,
what cost factors may a clerk utilize to determine the
cost of the copies and, consequently, the “reasonable
fees” called for by Section (9)O
Chapter 14 of the Texas Election Code, as amended, requires
<,andidates for public office tq file reports of campaign contributions
and expendi.tures with certain designated officials. Candidates for county
offices and state offices where the district is one county or less in size
fi.le these reports with the appropriate county clerk.
p. 2480
.
The Honorable Ed J. Harris page 2 (H-552)
You state that some county clerks charge $1.00 per page for a
copy of a filed campaign expense report pursuant to section 3 of article
3930, while in other counties varying charges are made pursuant to
section 9 of this article, which authorizes a reasonable fee for other-
wise unspecified services.
Article 3930, V. T. C. S. provides in pertinent part as follows:
County clerks and county recorders are hereby
authorized and required to collect the following
fees for services rendered by them to all persons . . .
. . . .
(3) For issuing each certified copy (except
certified copy of map records and condominium
records), notice, statement, license where the
fee for issuing the license is not specifically pro-
vided by statute, or any other instrument, docu-
ment, or paper authorized, permitted, or required,
to be issued by said county clerk or county recorder,
except as otherwise provided in Section 1, of this Act:
For each page, or part of a page, a fee, to be
paid in cash at the time cash order is placed, of $1.00.
However, nothing in this Act shall be construed to
limit or deny to any person, firm, or corporation, full
and free access to any papers, documents, proceedings
and records referred to in this Act, the right of such
parties to read and examine the same, and to copy
information from any microfilm or other photographic
image, or other copy thereof under reasonable rules
and regulations of the county clerk at all reasonable
times during the hours the county clerk’s office is open
to the public, and without making payment of any charge,
being hereby established and confirmed.
. . . .
p. 2481
.
The Honorable Ed J. Harris page 3 (Hr 552)
(9) For such other duties prescribed, authorized,
and/or permitted by the Legislature for which no fee
is set by this Act, reasonable fees shall be charged.
A provision in a separate article enacted on the same day states
essentially the same thing as does article 3930(3). Article 3930(b), V. T. C. S.,
provides in part the following;
Section 1, County clerks and clerks of county courts
are hereby authorized and required to collect the follow-
ing fees for services rendered by them to all persons. . . .
D. For, issuing each certificate, certified copy,
notice,, statement, transcript, or any other instrument,
document, or paper authorized, permitted, or required,
to be issued by said county clerk or clerk of county
courts on which there is no return to be recorded:
For each page, or part of a page, a fee, to be paid
st the time each order is placed, of.. . . . . . . . . . . . $1.00.
However, nothing in this Act shall be construed to
limit or deny to any person, firm, or corpkation, full
and free access to any papers, documents, proceedings,
and records referred to in this Act the right of such
parties to read and examine the same, and to copy
information from any microfilm or other photographic
image, or other copy thereof under reasonable rules
and regulations of the county clerk at all reasonable
times during the hours the county clerk’s office is
open to the public, and without making payment of any
charge, being hereby established and confirmed.
Both section 3 of article 3930 and subsection D of section 1 of article
3930(b) “authorize and require ” the collection of fees of $1.00 for “issuing”
certificates, certified copies, notices, etc. For the purposes of this statute
issue means something more than merely providing a copy. See Snell v.
Knowles, 87 S. W.2d 871, 876 (Tex. Civ. App. T-Texarkana 1935, writ
dismissed); Bourn y. Robinson, 107 S, W. 873, 875 (Tex. Civ. App. 1908,
no writ hist).
p. 2482
. -
The Honorable Ed J. Harris page 4 (H-552)
In a case dealing with the expenses of issuing bonds, the verb
“issue” was defined as follows:
To send out, to send out officially; to send forth,
to put forth; to deliver, for use, or authoritatively;
to put into circulation; to emit; to go out; to go
forth as authoritative or binding. Stokes v. Paschall,
243 S. W. 611, 614 (Tex. Civ. App. --Ft. Worth 1932,
no writ hint).
In our opinion, the fee of $1.00 per page authorized by section (3)
of article 3930 and subsection D of section 1 of article 3930(b), V. T. C. S. ,
is applicable t&those copies of campaign expense reports which the clerk
by his official act “issues, ” that is, sends out officially as authoritative
or binding. In the case of copies of documents on file in his office, this
can be done by certifying that the copy of the document is true and genuine.
We do not believe that the $1.00 fee is applicable to making non-certified
photographic reproductions of such documents.
Your second question is what coot factors may be utilized by a
clerk to determine the coat of making uncertified copies, and the reasonable
fee for such copies under section (9), article 3930, V. T. C. S.
Our statutes offer.little guidance as to what constitutes a reasonable
fee, and we feel a complete answer is beyond the capabilities of this office
beyond pointing out some of the factors which cannot be utilized.
Article 3904, V. T. C. S., prohibits the charging of a fee for the
examination of any paper or record in his office. A citizen’s right to
copy records in the clerk’s office under article 1945, V. T. C. S., may not
be burdened with rental charges for space and accomodations, such as
furniture and fixtures. Tarrant County v. Rattikin Title Co., supra.
Thus, we believe that such factors as the expense of locating the
records, making them physically available for inspection and copying,
and “overhead” charges for rental of space, furniture, or fixtures, may
not be considered in determining a reasonable fee for providing un-
certified copies of recordr filed in the office of county clerks.
p. 2483
. -
The Honorable Ed J. Harris page 5 (H-552)
SUMMARY.
The fee of $1.00 per page for copies of campaign
expense reports filed in the office of county clerks
applies to certified copies. V. T. C.S., art. 3930,
sec. 9; V.T.C.S., art. 3930(b), sec. 1 (D).
A reasonable fee may be charged for making
uncertified copies of campaign expense reports.
V. T. C. S., art. 3930, sec. 9. No charge may be
made for producing records to be inspected or
copied or for overhead, V. T. C. S., arts. 1945,
3904.
Very truly yours,
JOHN L. /fi HI L
Attorney General of Texas
APPROVED:
DAVID h$ KENDALL, First Assistant
&&
C. ROBERT HEATH. Chairman
Opinion Committee
lg
p. 2484
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983 P.2d 999 (1999)
1999 MT 201
The TRAVELERS INDEMNITY COMPANY, Plaintiff and Respondent,
v.
Niel ANDERSEN, Defendant and Appellant.
No. 98-413.
Supreme Court of Montana.
Submitted on Briefs April 22, 1999.
Decided August 30, 1999.
Rehearing Denied September 23, 1999.
*1000 Kenneth H. Gray; Jackson & Rice, Helena, Montana, For Appellant.
Joe Seifert; Keller, Reynolds, Drake, Johnson & Gillespie, Helena, Montana, For Respondent.
Justice KARLA M. GRAY delivered the Opinion of the Court.
¶ 1 Niel Andersen (Andersen) appeals from the judgment entered by the First Judicial District Court, Lewis and Clark County, on a jury verdict in favor of The Travelers Indemnity Company (Travelers). We affirm.
¶ 2 Andersen raises the following issues:
¶ 3 1. Did the District Court err in denying Andersen's motion for summary judgment asserting that Travelers' cause of action was barred by the statute of limitations?
¶ 4 2. Did the District Court abuse its discretion in excluding expert witness testimony?
¶ 5 3. Did the District Court abuse its discretion in excluding a report prepared by a deputy state fire marshal?
BACKGROUND
¶ 6 In 1974, Andersen purchased a large house in Helena, Montana, which subsequently was destroyed by fire on May 25, *1001 1988. Local authorities investigating the fire determined the cause was arson, but could not determine with any certainty who was involved in the arson.
¶ 7 At the time of the fire, the house was insured under a policy issued by Travelers. Andersen submitted a claim to Travelers, requesting payment under the insurance policy for the losses incurred by the destruction of the house. In conjunction with his claim, Andersen provided Travelers with his sworn statement that he was not involved in setting the fire which destroyed the house and he did not know who was responsible for the fire. In September of 1988, Travelers paid Andersen over $450,000 pursuant to the policy terms.
¶ 8 Several years after the fire, the Lewis and Clark County Attorney (County Attorney) received information which he believed implicated Andersen and two others in a conspiracy to commit the 1988 arson. The County Attorney investigated further and, in July of 1992, filed an information in district court charging Andersen and Thomas Rippingale (Rippingale) with the felony offense of conspiracy to commit arson. A third alleged co-conspirator, Brian Hardy (Hardy), was charged with and pled guilty to the offense of arson in a separate proceeding.
¶ 9 Upon learning of the newly discovered evidence and the filing of criminal charges relating to the 1988 arson fire, Travelers filed this action against Andersen, Rippingale and Hardy. The complaint alleged that the defendants conspired to commit the arson which destroyed Andersen's house and sought reimbursement of the monies it paid Andersen under the insurance policy. Andersen subsequently moved for summary judgment, asserting that Travelers' cause of action was barred by the statute of limitations, and the District Court denied his motion.
¶ 10 Hardy eventually was dismissed from the action and the proceedings against Rippingale were stayed as a result of his filing a petition for bankruptcy. The case proceeded to jury trial with Andersen as the sole defendant. The jury returned a verdict for Travelers, awarding it $465,175 in damages. Travelers then successfully moved the District Court to award prejudgment interest on the damages. The District Court entered judgment on the verdict, plus prejudgment interest and costs, in the amount of $905,789.94. Andersen appeals.
DISCUSSION
¶ 11 1. Did the District Court err in denying Andersen's motion for summary judgment asserting that Travelers' cause of action was barred by the statute of limitations?
¶ 12 Andersen moved for summary judgment on the grounds that Travelers' complaint alleged a cause of action based on fraud and that, pursuant to § 27-2-203, MCA, the statute of limitations for an action based on fraud is two years. He argued that, because the actions which Travelers alleged constituted fraud occurred in 1988, the complaintfiled four years later in 1992was untimely and the action was barred. The District Court denied the motion, but did not set forth the basis for its decision. Andersen asserts error.
¶ 13 We review a district court's ruling on a summary judgment motion de novo and apply the same Rule 56, M.R.Civ.P., criteria applied by that court. Gomez v. State, 1999 MT 67, ¶ 7, ___ Mont. ___, ¶ 7, 975 P.2d 1258, ¶ 7, 56 St.Rep. 272, ¶ 7 (citation omitted). In that regard,
[t]he judgment sought shall be rendered forthwith 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.
Rule 56(c), M.R.Civ.P. Generally, we begin our summary judgment review by determining whether the moving party established the absence of genuine issues of material fact. Gomez, ¶ 7. In the present case, however, the parties do not dispute the material facts relating to the summary judgment issue. Consequently, the question before us is whether Andersen was entitled to judgment as a matter of law. The District Court concluded that Andersen was not entitled to judgment *1002 as a matter of law and we review that conclusion to determine whether the interpretation of the law is correct. See Gomez, ¶ 7 (citation omitted).
¶ 14 Andersen reiterates on appeal his arguments that Travelers' complaint alleged a cause of action sounding in fraud, for which the statute of limitations is two years, and that, because the complaint was not filed until nearly four years after the alleged fraudulent acts, the action is barred. Travelers responds that the gravamen of its complaint is breach of the insurance contract, rather than fraud, and its complaint was filed well within the 8-year statute of limitations period set forth in § 27-2-202(1), MCA, for an action based on a written contract.
¶ 15 Under certain circumstances, potential tort liability may coexist with contract liability. Thiel v. Taurus Drilling Ltd. 1980-II (1985), 218 Mont. 201, 209, 710 P.2d 33, 38; Unruh v. Buffalo Bldg. Co. (1981), 194 Mont. 553, 555, 633 P.2d 617, 618. Where an action may be based either in tort or contract, the injured party may elect the theory under which he or she wishes to proceed and the statute of limitations governing that theory will control. Weible v. Ronan State Bank (1989), 238 Mont. 235, 237, 776 P.2d 837, 838. However, where doubt exists as to the theory of the actionand, therefore, which statute of limitations should applythe general rule is that the doubt is resolved in favor of the longer statute of limitations. Weible, 238 Mont. at 237, 776 P.2d at 838 (citing Thiel, 218 Mont. at 212, 710 P.2d at 40). "The choice of which statute of limitation should apply ultimately rests on a characterization of the essence of the claim." Thiel, 218 Mont. at 210, 710 P.2d at 38. Consequently, we look to the substance of the complaint to determine the nature of the action and which statute of limitation applies. Weible, 238 Mont. at 237, 776 P.2d at 838.
¶ 16 Travelers' complaint alleges that it issued a policy to Andersen insuring his house which included fire hazard coverage. The policy provided that the fire hazard coverage was not available if the property was damaged through intentional arson by Andersen. The policy required that, in the event of a fire loss, Andersen was to provide Travelers with a true and correct proof of loss statement. The complaint further alleges that, pursuant to this insurance contract provision, Andersen presented Travelers with two sworn proofs of loss stating that he was not involved with the incident which caused the destruction of his house and also gave Travelers sworn statements that he was not responsible for the fire and did not know the identity of the responsible people. The complaint alleges that, in reliance on Andersen's representations that he was not involved with the arson, Travelers paid him monies pursuant to the policy's terms.
¶ 17 Travelers' complaint next alleges that Andersen, Rippingale and Hardy conspired to commit and committed the arson at issue in order to breach the insurance contract between Travelers and Andersen and that, "[b]y this breach of contract and fraud, Andersen has received the fire insurance proceeds to which he would otherwise not be entitled." Furthermore, the complaint alleges that Travelers is subrogated to the amounts paid Andersen as a result of the arson, through both the terms of the policy and Montana law, and that
Niel Andersen has wrongfully, deceitfully, and fraudulently committed arson to his property ... in concert with Rippingale and Hardy, and has fraudulently submitted proofs of loss, statements under oath, and other information to Plaintiff, violating his insurance contract with Plaintiff, and wrongfully receiving Plaintiff's insurance proceeds through this fraud.
¶ 18 Although Travelers' complaint clearly alleges that Andersen committed fraud, it also clearly alleges that Andersen's actions breached the insurance contract and that Travelers is entitled, under the terms of the contract, to be reimbursed for the monies it paid Andersen. While the complaint does not specifically denominate the claims as either tort or contract, we have held that
[t]he general rule applied to situations falling within the twilight zone of contract and tort law is that doubt must be resolved in favor of an action based upon contract.
Thiel, 218 Mont. at 209-10, 710 P.2d at 38.
¶ 19 We conclude that Travelers' complaint sufficiently alleges a cause of action *1003 based on breach of a written contract to allow application of the 8-year statute of limitations set forth in § 27-2-202(1), MCA. As a result, we further conclude that the complaint, filed within four years of the alleged acts on which the claim is based, was timely filed.
¶ 20 We hold that the District Court did not err in denying Andersen's motion for summary judgment asserting that Travelers' cause of action was barred by the statute of limitations.
¶ 21 2. Did the District Court abuse its discretion in excluding expert witness testimony?
¶ 22 As stated above, Travelers sued Andersen, Rippingale and Hardy alleging that they were co-conspirators in the arson. Travelers stipulated to dismiss Hardy from the action prior to the trial. However, because Hardy had admitted that Rippingale solicited him to set the fire which destroyed Andersen's house, he was a primary witness in Travelers' case against Andersen. A number of years before the fire, Hardy had suffered a closed head injury which resulted in various psychological problems including poor memory and a propensity to be manipulated easily. As a result, his credibility as a witness was a major issue between the parties.
¶ 23 Andersen intended to challenge Hardy's credibility at trial through the expert testimony of Dr. William Stratford (Stratford), a psychiatrist who examined Hardy and submitted a report stating, in essence, that Hardy was incapable of telling the truth. Travelers moved in limine to exclude Stratford's testimony, arguing that expert testimony regarding a witness's credibility is inadmissible. The District Court granted Travelers' motion based on our decision in Matter of Renewal of Teaching Certificate of Thompson (1995), 270 Mont. 419, 893 P.2d 301. Andersen asserts error.
¶ 24 Evidentiary rulings, including whether expert testimony is admissible, are within the trial court's discretion. Certificate of Thompson, 270 Mont. at 427, 893 P.2d at 305. Consequently, we review the District Court's decision granting Travelers' motion in limine to determine whether the court abused its discretion.
¶ 25 Generally, expert testimony evaluating the credibility of a witness is inadmissible. Certificate of Thompson, 270 Mont. at 427, 893 P.2d at 306; State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 455. The question of a witness's credibility lies exclusively within the province of the jury. Expert testimony regarding witness credibility improperly invades the jury's function in that the jury may defer to the expert's expertise and infer that the expert believes the witness to be credible or incredible. Certificate of Thompson, 270 Mont. at 429, 893 P.2d at 307; Harris, 247 Mont. at 409, 808 P.2d at 455.
¶ 26 Andersen contends that Stratford's testimony was to be directed toward describing Hardy's mental condition as a result of the injury he suffered rather than to directly assail Hardy's credibility. He asserts Stratford was to render opinions regarding Hardy's ability to appreciate the nature and quality of his acts, his capacity for lying, his inability to relate his impressions of prior incidents, his poor memory and his tendency to be easily influenced or manipulated by others. He argues that it is permissible for an expert to testify about these types of things, that the testimony "goes to the very heart of the defense" and that, in determining Stratford's testimony was inadmissible, the District Court excluded the only evidence he had to impeach Hardy's credibility.
¶ 27 The premise underlying Andersen's argument is that Stratford's testimony was his only evidence impeaching Hardy's credibility. Our review of the record, however, reveals that Andersen elicited testimony from other witnesses regarding virtually all of the points on which he contends Stratford was to testify. For example, Hardy testified on cross-examination regarding his accident, the nature of his head injury and that he had difficulty with his memory. Andersen's counsel also was able to highlight numerous inconsistencies in Hardy's testimony during cross-examination. Furthermore, Rippingale testified that Hardy was "a space cadet," was *1004 incapable of telling the truth, would adopt memories suggested to him by others regardless of whether the memories were true, was easily manipulated by family members and close friends, and had "diminished capacity." Hardy's wife testified that he had selective memory, would tell lies when it suited his needs and was capable of saying he did things he actually had not done.
¶ 28 The record is clear that, Andersen's contention to the contrary notwithstanding, Stratford's testimony was far from the only testimony he had to impeach Hardy's credibility. Thus, the premise underlying Andersen's argument fails.
¶ 29 We hold that the District Court did not abuse its discretion in excluding the expert witness testimony.
¶ 30 3. Did the District Court abuse its discretion in excluding a report prepared by a deputy state fire marshal?
¶ 31 At trial, Andersen offered into evidence a report written by a deputy state fire marshal who had assisted local law enforcement in investigating the fire but who had died prior to trial and was unavailable to testify. Travelers objected to admission of the document on the basis that it had not been endorsed as an exhibit in the pretrial order. The District Court reserved its ruling.
¶ 32 During a subsequent discussion in chambers, Andersen again offered the document into evidence, arguing that it was admissible under Rule 803(6), M.R.Evid., as a record kept in the ordinary course of business. Travelers objected on the basis the document was an investigative report by law enforcement inadmissible under Rule 803(8)(i), M.R.Evid. The District Court concluded that the document was an investigative report and excluded it from evidence. Andersen asserts error and, as stated above, we review a district court's evidentiary rulings to determine whether the court abused its discretion. See Certificate of Thompson, 270 Mont. at 427, 893 P.2d at 305.
¶ 33 Andersen contends that the District Court should have admitted the fire marshal's report under the business records exception to the hearsay rule set forth in Rule 803(6), M.R.Evid. In response, Travelers reiterates its first objection to the report, which was not addressed by the District Court, that the document was properly excluded because Andersen failed to identify it as an exhibit in the pretrial order.
¶ 34 The purpose of pretrial orders is to simplify issues, prevent surprise and allow counsel to prepare their cases for trial based on the pretrial order. State ex rel. Ins. Fund v. Berg (1996), 279 Mont. 161, 180, 927 P.2d 975, 986. Additionally, a pretrial order governs the subsequent course of the action unless modified by a later order. Rule 16(e), M.R.Civ.P.; Berg, 279 Mont. at 179-80, 927 P.2d at 986. Consequently, we often have held that parties may not assert issues or other matters which were not included in the pretrial order. See, e.g., Berg, 279 Mont. at 180, 927 P.2d at 986; Naftco Leasing Ltd. v. Finalco, Inc. (1992), 254 Mont. 89, 94-95, 835 P.2d 728, 731-32; Bache v. Gilden (1992), 252 Mont. 178, 182, 827 P.2d 817, 819. More specifically, we previously have held that a district court erred in admitting evidence not listed as an exhibit in the pretrial order. Workman v. McIntyre Const. Co. (1980), 190 Mont. 5, 11-12, 617 P.2d 1281, 1284-85.
¶ 35 Andersen concedes that he did not list the fire marshal's report as an exhibit in the pretrial order. He asserts, however, that the document was offered as rebuttal and that a party is not required to list rebuttal evidence in the pretrial order. We disagree with Andersen's characterization of this exhibit as rebuttal evidence.
¶ 36 Andersen is correct that a party is not required to give advance notice of witnesses or evidence offered as rebuttal. See, e.g., Valley Properties v. Steadman's Hardware, Inc. (1992), 251 Mont. 242, 250, 824 P.2d 250, 255. However, rebuttal evidence is evidence offered to counteract new matter presented by the adverse party. Massman v. City of Helena (1989), 237 Mont. 234, 243, 773 P.2d 1206, 1211. Here, Andersen did not offer the fire marshal's report to counter any new evidence presented by Travelers. Rather, he offered the report during cross-examination of a witness presented during Travelers' case-in-chief. Evidence in a plaintiff's case-in-chief is not "new matter" *1005 to be counteracted with rebuttal evidence. See, e.g., Miller v. Frasure (1994), 264 Mont. 354, 370-71, 871 P.2d 1302, 1312. We conclude that the fire marshal's report was not rebuttal evidence and, as a result, we further conclude that the report was properly excluded because Andersen failed to list it as an exhibit in the pretrial order.
¶ 37 We hold that the District Court did not abuse its discretion in excluding the fire marshal's report.
¶ 38 Affirmed.
JAMES C. NELSON, JIM REGNIER, WILLIAM E. HUNT, SR., and TERRY N. TRIEWEILER, JJ., concur.
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509 F.3d 808 (2007)
Alexander TORREZ, also known as Alejandro Torrez, Plaintiff-Appellant,
v.
TGI FRIDAY'S, INC., Defendant-Appellee.
No. 07-1107.
United States Court of Appeals, Seventh Circuit.
Argued November 2, 2007.
Decided December 3, 2007.
*809 James E. Ocasek (argued), Cooney & Conway, Chicago, IL, for Plaintiff-Appellant.
Steven G. Carlson (argued), Johnson & Bell, Chicago, IL, for Defendant-Appellee.
Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
POSNER, Circuit Judge.
In this suit for personal injury, governed by Illinois law, the district judge granted summary judgment in favor of the defendant, and the plaintiff appeals. Federal jurisdiction is based on diversity of citizenship, though we were able to ascertain this only by directing the parties to file supplemental jurisdictional memoranda; for the jurisdictional statement in the plaintiff's opening brief failed to identify the state in which the defendant, a corporation, is incorporated, and the jurisdictional statement in the defendant's brief stated that the plaintiff's jurisdictional statement was complete and correct, though it was neither.
The plaintiff was injured while cleaning the hood over a fryer exhaust fan at the defendant's restaurant in Batavia, Illinois. He was employed not by the defendant, TGI Friday's (had he been, he could not have brought this suit but would have been remitted to an administrative proceeding under the state's workers' compensation law), but by a cleaning service, Facilitec, hired by the defendant. He was working at night because he had to wait to enter the restaurant until its employees had finished taking inventory and were about to close the restaurant for the night. Inside the fryer hood were five light bulbs, each encased in a transparent glass globe. The bulbs and their globes were not visible unless one looked under the hood, which the plaintiff did not do. Instead he reached inside to clean the inside of the hoodand felt a sudden pinch in his arm. The pinch turned out to be a serious wound, severing several tendons and disabling *810 the plaintiff from regular employment. He had cut his arm on one of the globes, but the record is silent on whether it was a cracked globe that broke apart when his arm touched it or a globe that was broken before he reached into the hood.
The record contains no picture of the fryer or even identification of the brand or model. The plaintiff's lawyer told us that he could not gain access to the restaurant to look at the fryer and hood, which is absurd; hasn't he heard of pretrial discovery? (See Fed.R.Civ.P. 34(a)(2).) Well, maybe not, because he conducted no discovery at all. As a result, nothing is known about the source of the crack in the globe, or, if the globe was already broken when the plaintiff's arm touched it, the cause of its being broken. The globe could have been defectively designed by the manufacturer, defectively installed or manhandled by the manufacturer of the fryer hood, damaged in shipment, damaged by an employee of the restaurant, damaged by another employee of the plaintiff's company or by the plaintiff himself on a prior visit to clean the hood. We shall never know.
The plaintiff has litigated the case as if it were a slip and fall case, where for example a customer accidentally knocks a bottle containing liquid off a shelf in the defendant's store, another customer slips on the spilled liquid and injures himself, and the suit charges that the store should have detected and removed the danger before the accident. E.g., Perminas v. Montgomery Ward & Co., 60 Ill.2d 469, 328 N.E.2d 290, 291-92 (1975); Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434, 437-41 (1958); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603 (7th Cir.2001); Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001). At the same time and inconsistently he argues that the globe was cracked or broken by the restaurant's employees. These are two quite different theories, requiring different proof. If an employee of the defendant creates a hidden danger (maybe, as claimed in Howard v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir.1998), a store's employee rather than another customer knocked the bottle off the shelf and failed to notice the spillage or report it or clean it up), such as a cracked or broken glass globe in a place into which the employee should know someone will be likely to reach his arm without awareness of the danger, the employee is negligent and his negligence is imputed to his employer. Donoho v. O'Connell's, Inc., supra, 148 N.E.2d at 437. But there is as we said no evidence of who broke or cracked the globe, and specifically no evidence that one of the restaurant's employees did it.
If the danger was created by someone other than an employee of the restaurant, the restaurant is liable only if it would have detected and removed the danger had it been exercising due care to make its premises safe for its employees and for any business invitees (which would include the members of the outside cleaning staff as well as any customer or inspector invited into the kitchen) who were within the zone of danger. In the case of slip and fall accidents in stores, due care requires the store-owner to keep the floor reasonably safe for customers by cleaning it frequently and by directing its employees to do a certain amount of patrolling of the aisles with their eyes directed at the floor. As we explained in the Peterson case, "The store's duty is not merely to prevent careless spillage by its employees but also to be on the lookout for spillage by whomever caused and to clean it up promptly. Satisfaction of the latter half of this duty, the duty of inspection and clean up, does not require continuous patrolling of the aisles; the cost would be disproportionate to the benefit. But it may require, in self-service stores where customer traffic *811 is heavy and the probability of a slip and fall therefore high (both because there are many people using the aisles, who are customers rather than employees, and because the probability that a customer through spillage or otherwise will create a hazardous condition is a function of the number of customers per square foot of floor), frequent and careful patrolling. The cost of such patrolling to the store need not be high. Employees have frequent occasion to be in the store's aisles in any event; they have only to be alert to the possibility of spillage to notice it and clean it up promptly." 241 F.3d at 604-05 (citations omitted). Of critical importance is whether "the substance [that caused the accident] was there a length of time so that in the exercise of ordinary care its presence should have been discovered." Tomczak v. Planetsphere, Inc., 315 Ill. App.3d 1033, 249 Ill.Dec. 58, 735 N.E.2d 662, 667 (2000); see also Martin v. Wal-Mart Stores, Inc., 183 F.3d 770, 774-75 (8th Cir.1999); Porche v. Winn-Dixie Louisiana, Inc., 644 So.2d 699, 702 (La. App.1994); compare Hresil v. Sears, Roebuck & Co., 82 Ill.App.3d 1000, 38 Ill.Dec. 447, 403 N.E.2d 678, 679-80 (1980). If there is a comparable duty on the part of restaurateurs to inspect fryer hoods for cracked or broken glass globes, this is not so obvious as to enable a suit to go forward on the basis of res ipsa loquitur that the accident must have been due to the defendant's negligent management of something within its control.
Determining whether a defendant has failed to use due care to prevent an accident requires a comparison between the cost of the precaution that would have prevented it and the cost of the accident that occurred as a result of the absence of the precaution, discounted by the probability of an accident if the precaution was not taken. If an accident if it occurs would cause on average a $10,000 loss, and the probability that the accident would occur unless a particular precaution was taken was 1 percent, and the precaution would have cost only $50, then the failure to take it was indeed negligence. For an expected loss of $100 (1 percent of $10,000) could have been prevented at a cost of only $50. Rarely in an actual negligence case are the factors that determine whether a precaution is cost justified actually quantified. But if the case is properly litigated there will at least be evidence of a general nature about whether the probability of an accident was high or low, the loss if the accident occurred would be great or small, and the measures that would have prevented the accident would have cost a lot or a little, and such general information will usually suffice to resolve the issue of negligence satisfactorily. But the record of this case contains absolutely no evidence concerning these magnitudes. How likely is a globe in a fryer hood to be cracked or broken? How easily could such a defect be determined by inspection (for the globes, being placed behind a lip in the hood, resist easy inspection)? How frequent and, on average, how serious is the type of accident that befell the plaintiff? Was he perhaps in the best position to inspect, since it was his duty to clean the bulbs? Indeed, was it reckless for him to try to clean a surface from which (as he must have known, as there is no suggestion that this was the first time he had tried to clean the fryer hood) hollow glass globes protruded that he could not see? In the absence of some evidence on these points there is none no reasonable jury could find that the plaintiff's injury was due to negligence on the part of employees of the restaurant. Summary judgment was therefore rightly granted in favor of the defendant.
AFFIRMED.
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343 F.3d 881
Doris WALLS, et al., Plaintiffs-Appellants,v.AMERISURE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 01-4320.
United States Court of Appeals, Sixth Circuit.
Argued July 29, 2003.
Decided and Filed September 18, 2003.
Claudia R. Eklund (argued and briefed), Lowe, Eklund, Wakefield & Mulvihill Co., Cleveland, OH, for Plaintiffs-Appellants.
Christopher Mark Bechhold (briefed), Thompson Hine, Cincinnati, OH, Laurie J. Nicholson (argued and briefed), Thompson Hine, Cincinnati, OH, for Defendant-Appellee.
Before DAUGHTREY and MOORE, Circuit Judges; CALDWELL, District Judge.*
OPINION
MOORE, Circuit Judge.
1
The plaintiffs, Reda Walls and her mother Doris Walls, appeal the district court's grant of summary judgment to the defendant Amerisure Mutual Insurance Company ("Amerisure") and the district court's denial of their motion for summary judgment. The plaintiffs allege that the injuries Reda received in an automobile accident were covered by an insurance policy held by the Ford Motor Company, which employed Reda's father, Jessie Walls.
2
The district court premised its grant of summary judgment to the defendant (and its denial of summary judgment to the plaintiffs) on the fact that the plaintiffs did not comply with notice and subrogation provisions in the insurance policy. It is clear that the plaintiffs did in fact breach at least some of these provisions. After the district court decided this case, however, the Ohio Supreme Court decided Ferrando v. Auto-Owners Mutual Insurance Co., 98 Ohio St.3d 186, 781 N.E.2d 927 (2002). Under Ferrando, the mere fact that the plaintiffs may have breached the notice and subrogation clauses is not dispositive of their legal claim. Instead, the key question is whether the plaintiffs' breach of these provisions was prejudicial to Amerisure — an issue that the district court did not address in its summary-judgment decision. Because the district court did not address this issue and because the plaintiffs should have a clearly delineated opportunity to show that their breaches were not prejudicial, we REVERSE the district court's judgment and REMAND this case for the district court to conduct a prejudice inquiry under Ferrando.
I. BACKGROUND
3
According to the complaint, on March 28, 1986, Reda Walls was riding in an automobile when it was struck by a car negligently operated by Lawrence Lavrich. Reda, who was seventeen years old at the time, sustained significant permanent injuries. At the time of the accident, Reda's father, Jessie Walls, was an employee of the Ford Motor Company. The Ford Motor Company had an insurance policy ("the policy") with the Michigan Mutual Insurance Company (now in business as Amerisure Mutual Insurance Company), that provided automobile liability insurance. This policy was issued for the period of December 15, 1983 to December 15, 1986, and was in effect at the time of the accident.
4
On June 1, 1988, the plaintiffs settled their claims against Lavrich, who was an underinsured motorist, and released him and his insurance carrier from all liability in exchange for a payment of $50,000. It was not until February 21, 2001 that the plaintiffs notified Amerisure of the accident. Apart from the settlement that the plaintiffs received from Lavrich and his insurer, the plaintiffs also received $50,000 from the State Farm Insurance Company, which insured the vehicle in which Reda was riding at the time of the accident.
5
The Amerisure insurance policy provided both general commercial liability insurance and automobile insurance. The automobile insurance component of the policy consists of a section entitled "Comprehensive Automobile Liability Insurance," J.A. at 47-57, and a supplementary section, entitled "Personal Auto Policy," J.A. at 58-67. The Personal Auto Policy contains a subsection that provides uninsured motorists ("UM") coverage. The Personal Auto Policy did not, however, include underinsured motorists ("UIM") coverage, which was apparently never offered. Although the policy has general liability limits in the amount of $1,000,000, an endorsement purports to limit the UM coverage to $100,000 per person and $300,000 per accident.
6
There are several notice and subrogation provisions in this insurance policy. First, the Comprehensive Automobile Liability Insurance part of the policy contains apparently policy-wide consent-to-settle and subrogation provisions:
7
In the event of any payment under this Policy, the Company shall be subrogated, subject to the rights of others, including the INSURED, to the INSURED's rights to recover from others to the extent of the Company's payments and will act in concert with all other interests concerned in the exercise of the INSURED's rights of recovery against any person or organization. The INSURED shall execute and deliver such assignments and similar instruments and papers as are necessary to secure such rights and shall cooperate with the Company.
8
The INSURED may release others from liability and also waive the Company's right of subrogation against third parties but only if such releases or waivers are prior to loss and are by contract.
9
J.A. at 55 (emphasis added).
10
Second, the Personal Auto Policy has notice and subrogation provisions:
11
We must be notified promptly of how, when and where the accident or loss happened....
A person seeking any coverage must:
12
1. Cooperate with us in the investigation, settlement or defense of any claim or suit.
13
2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss.
14
* * *
15
If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do:
16
1. Whatever is necessary to enable us to exercise our rights; and
17
2. Nothing after loss to prejudice them.
18
J.A. at 65-66.
19
Finally, the uninsured motorists coverage part of the Personal Auto Policy itself contains a consent-to-settle "exclusion":
20
We do not provide Uninsured Motorists Coverage for bodily injury sustained by any person:
21
* * *
22
2. If that person or the legal representative settles the bodily injury claim without our consent.
23
J.A. at 63.
24
In addition to these provisions, the Comprehensive Automobile Liability Insurance part of the policy also contains the following provision:
25
B. Notice of Occurrence, Claim, or Legal Proceeding
26
Whenever the Corporate Insurance Manager, Ford Motor Company, Dearborn, Michigan, becomes aware of and in his reasonable judgment concludes that an OCCURRENCE covered hereunder is likely to involve this Policy, notice of the OCCURRENCE shall be given to the Company or its agent as soon as practicable; however, failure to give notice of any OCCURRENCE shall not prejudice such claims.
27
J.A. at 55.
II. ANALYSIS
A. Jurisdiction
28
The district court had jurisdiction over this diversity case pursuant to 28 U.S.C. § 1332, because the plaintiffs are citizens of Ohio and the defendant is a Michigan corporation that has its principal place of business in Michigan. See Lee-Lipstreu v. Chubb Group of Ins. Cos., 329 F.3d 898, 899-900 (6th Cir.2003). Pursuant to 28 U.S.C. § 1291, we have jurisdiction over the district court's final judgment.
B. Standard of Review
29
This court reviews de novo a grant of summary judgment. Bukowski v. City of Akron, 326 F.3d 702, 707 (6th Cir.2003). Although the denial of a motion for summary judgment is usually an interlocutory order that is not immediately appealable, where "an appeal from a denial of summary judgment is presented in tandem with a grant of summary judgment, this court has jurisdiction to review the propriety of the district court's denial of summary judgment." Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 235 (6th Cir.2003) (quotation omitted). We review de novo a denial of summary judgment on purely legal grounds. Id. at 235-36. Summary judgment can only be granted when, taking all justifiable inferences in the nonmoving party's favor, there is still no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).
C. The Notice and Subrogation Issues
30
The issue in this case on appeal is whether the plaintiffs have breached the notice and subrogation provisions in the Amerisure policy, and whether such breaches vitiate their claim for coverage. We conclude that at least some of the provisions related to notice and subrogation do apply to the plaintiffs' claim, and that the plaintiffs have indisputably breached them. However, it is now clear that a mere breach of these provisions does not necessarily vitiate coverage. Instead, the question is whether the breach prejudiced the insurer. Because the district court did not examine that issue and because the plaintiffs have shown that they could possibly demonstrate a lack of prejudice, we remand this case to the district court for further proceedings on this issue.
31
1. The Effect of Notice and Subrogation Provisions in Policies Where UM/UIM Coverage is Implied by Law
32
It is important to stress that the plaintiffs are not seeking to recover under the written policy. They concede that the policy only insures damages caused by the operator of an uninsured motor vehicle and that Lavrich was insured to some extent — in fact, the plaintiffs recovered $50,000 from Lavrich's insurer. Instead, the plaintiffs apparently are arguing that the insurer's failure to offer under insured motorists coverage created under insured motorists coverage in the amount of the policy limits pursuant to Gyori v. Johnston Coca-Cola Bottling Group, Inc., 76 Ohio St.3d 565, 669 N.E.2d 824 (1996), and Linko v. Indemnity Insurance Co. of North America, 90 Ohio St.3d 445, 739 N.E.2d 338 (2000).
33
Because they are not seeking to recover under the written policy, the plaintiffs claim that the notice and subrogation clauses in the written policy do not apply to their claims for implied UIM benefits. This court, however, has already rejected this assertion. In Lepley v. Hartford Accident & Indemnity Co., 334 F.3d 544 (6th Cir.2003), we stated that "if an insurance policy specifies general conditions precedent that must be satisfied before an insured is entitled to any coverage, then an insured's failure to comply with those conditions precedent precludes recovery under UM/UIM coverage that arises by operation of law." Id. at 549. We then held that the notice and subrogation provisions in Lepley were such general conditions precedent, and that they therefore did "carry over" onto implied UM/UIM coverage. Id. (holding that "the notice and subrogation clauses are valid and enforceable preconditions to an insure[r]'s duty to provide underinsured motorist coverage even where UM/UIM coverage arises as a matter of law") (quotation and brackets omitted); see also Clark v. Chubb Group of Ins. Cos., 337 F.3d 687, 696 (6th Cir.2003) (explaining this point).
34
The insurance policy in this case does have at least two policy-wide conditions that act as general conditions precedent that must be satisfied before any recovery under the policy is permitted. These are the policy-wide consent-to-settle provision and the policy-wide subrogation provision. J.A. at 55. These provisions, under Lepley, apply to any claim for implied UM/UIM benefits.1
2. The Question of Breach
35
The question now becomes what legal effect the consent-to-settle and subrogation clauses have. The Ohio Supreme Court, in a recent decision issued after the parties filed their appellate briefs, has made clear the law that governs breaches of these types of subrogation clauses. See Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 781 N.E.2d 927 (2002). As we have recently explained, Ferrando held that "breaches of notice and subrogation provisions serve to vitiate the coverage provided by an insurance policy only if they are prejudicial to the insurer," but that "breaches are presumed to be prejudicial unless proven to be harmless by the insureds." Clark, 337 F.3d at 692.2
36
We hold that the plaintiffs here have breached the policy-wide consent-to-settle and subrogation provisions. The provisions clearly require that insureds not release others from liability or waive Amerisure's subrogation rights without Amerisure's permission. By releasing Lavrich and his insurer, the plaintiffs breached these provisions. The plaintiffs' only defense is their claim that the unforeseeable nature of the Ohio Supreme Court's Scott-Pontzer decision (which provided the basis for considering Reda Walls to be an insured) meant that they had no idea that a claim against Amerisure was viable until 1999 (which was when Scott-Pontzer was decided). See Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 710 N.E.2d 1116, 1120 (1999). We, however, rejected this precise argument in both Clark and Lepley and will not consider it again. See Lepley, 334 F.3d at 551 (stating that while the plaintiff's claim was only viable because of the Scott-Pontzer decision, the plaintiff still "could have litigated the matter," as "[a]waiting a favorable Ohio Supreme Court decision is not a reasonable excuse for delaying notice and failing to preserve subrogation rights"); see also Clark, 337 F.3d at 693. We therefore hold that the plaintiffs have breached the consent-to-settle and subrogation provisions in the policy.
37
3. The Question of Prejudice (and of Remand)
38
Having addressed the issue of breach, we now turn to the issue of prejudice. Under Ferrando, once it has been shown that plaintiffs have breached a notice or subrogation provision, the plaintiffs must submit evidence to overcome the presumption of prejudice that attaches to such a breach. Clark, 337 F.3d at 693. The parties seem to agree that the plaintiffs have not, as of yet, overcome that presumption. The parties disagree, however, as to what should happen as a consequence. The defendant argues that we should dismiss the plaintiffs' claim. The plaintiffs argue that we should remand this case to the district court to allow them an opportunity to show a lack of prejudice. Ultimately, we agree with the plaintiffs and remand this case.
39
We have considered the appropriateness of a remand under these circumstances twice before, both in Clark and in Lepley. In Lepley, when faced with the plaintiffs' breach of notice and subrogation provisions, we dismissed the plaintiffs' claims. By way of contrast, in Clark, we remanded the case to the district court. Lepley and Clark, however, are "in no way inconsistent." Clark, 337 F.3d at 694 n. 3. In Lepley, the district court had previously "analyzed the prejudice issue and had stated in its opinion that Lepley offered `no evidence to [rebut the presumption of prejudice].'" Clark, 337 F.3d at 694 n. 3 (quoting Lepley, 334 F.3d at 552). In Clark, however, "the district court did not examine the issue of prejudice, believing that it was unnecessary." Id. This is the pivotal distinction on which the result in Clark turned; in Clark, a remand was necessary to allow the district court to do the initial fact-finding on the prejudice issue, thereby also "insur[ing] that the plaintiffs have, at some point in the litigation, an opportunity to show" a lack of prejudice. Id.
40
As was the case in Clark, the district court below did not evaluate the prejudice issue in its summary-judgment decision; it instead viewed any breach as automatically vitiating coverage. As a result, the district court made no findings regarding prejudice that we review here.3 Moreover, we note that the plaintiffs at oral argument pointed to specific pieces of evidence that could well establish that their breaches of the consent-to-settle and subrogation provisions were not prejudicial to Amerisure. The plaintiffs stated that State Farm (which insured the car in which Reda Walls was riding) did an investigation of the accident, consented to the settlement Walls reached with Lavrich and his insurer, and paid benefits on the UIM claim. The fact that State Farm, another UM/UIM carrier, accepted the settlement with Lavrich after an investigation suggests that State Farm viewed a recovery from Lavrich above the $50,000 settlement figure to be unlikely, if not impossible. This, in turn, suggests that Amerisure perhaps lost nothing of value when the plaintiffs settled with Lavrich and his insurer and destroyed Amerisure's subrogation rights. Cf. Ferrando, 781 N.E.2d at 949 (noting that whether "the prejudicial effect [of a consent-to-settle provision's breach] on the insurer [is] minimal" will "depend[] on the value of the subrogation rights sought to be protected"). We also note that the record already contains a certified copy of Lavrich's conviction for failing to stop at a red light as well as evidence that Reda Walls was merely a passenger in the impacted car. This evidence tends to suggest strongly that it was Lavrich (who was an underinsured driver) who was responsible for the accident and that Reda Walls was free of any contributory fault.
41
While the facts listed above do not establish a lack of prejudice, it does appear that the plaintiffs may, on remand, be able to adduce evidence to support such a conclusion. As the prejudice inquiry is a factual one that we feel ill equipped to resolve, we (consistent with Ohio practice) choose to remand this case and leave it to the district court to handle in the first instance. See Clark, 337 F.3d at 693-94 (noting the "many [Ohio intermediate] courts [that] have remanded Scott-Pontzer cases to the trial court for further proceedings").
III. CONCLUSION
42
For the foregoing reasons, we REVERSE the district court's judgment and REMAND this case for further proceedings consistent with this opinion.
Notes:
*
The Honorable Karen Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation
1
As explainedinfra, the policy has several other notice and subrogation provisions. The Personal Auto Policy contains notice and subrogation provisions, and the uninsured motorists coverage part of the Personal Auto Policy itself has a separate consent-to-settle provision. It is unclear to us whether these provisions also apply to the plaintiffs' claim for implied UM/UIM benefits. It is frankly difficult to tell whether these provisions are policy-wide, and, relatedly, whether provisions that are not policy-wide "carry over" onto implied UM/UIM coverage. Cf. Lepley v. Hartford Acc. & Indem. Co., 334 F.3d 544, 549 (6th Cir.2003) (suggesting that only those conditions that are "general conditions precedent that must be satisfied before an insured is entitled to any coverage" apply to claims of implied coverage) (emphasis added). Moreover, it is unclear whether any provisions requiring prompt notice are operative in light of language in the policy stating that "failure to give notice of any OCCURRENCE shall not prejudice such claims." J.A. at 55. Because we find that the policy-wide consent-to-settle and subrogation provisions do have effect, however, we do not address these issues, instead leaving them for the district court to consider, if need be, on remand.
2
As we explained inClark, Ferrando marked a significant change in how Ohio law treated breaches of subrogation provisions (which include consent-to-settle provisions, see Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 781 N.E.2d 927, 947 (2002)). Before Ferrando, a breach of a subrogation provision automatically vitiated coverage. Ferrando, however, conformed to Ohio precedent in its treatment of notice provisions, as it was clear even before Ferrando that a breach of a notice provision did not necessarily preclude coverage. Instead, the breach of the provision had to be prejudicial. See Clark v. Chubb Group of Ins. Cos., 337 F.3d 687, 692 n. 2 (6th Cir.2003).
3
In addition to asking this court for a remand, the plaintiffs also moved to reopen their case in the district court. The plaintiffs argued that, in light ofFerrando and the fact that the district court had made no findings regarding prejudice, the case should be reopened. In denying the plaintiffs' motion to reopen, the district court acknowledged that it did not examine the prejudice issue in its summary-judgment decision. The district court explained that the plaintiffs had not shown evidence of a lack of prejudice either before summary judgment was granted in the district court or in any later affidavits attached to the motion to reopen.
We nonetheless believe a remand to be appropriate here. As we explain infra, there is evidence (both within and outside of the current record) suggesting that the plaintiffs' breaches were not prejudicial. The fact that the plaintiffs did not refer to this evidence in their motion to reopen may justify the district court's denial of that motion, but we are not reviewing the district court's denial of that motion; we are reviewing the grant of summary judgment to the defendants. Given the fact that the district court did not make any determination on the issue of prejudice before granting summary judgment against the plaintiffs and given the possibility that the plaintiffs could in fact show a lack of prejudice, we continue to believe that a remand is appropriate here even in light of the district court's subsequent decision to deny the motion to reopen.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-76,949-15 & WR-76,949-16
EX PARTE LEE DOUGLAS SMITH, JR., Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NO. 1021857 IN THE 8TH DISTRICT COURT
FROM HOPKINS COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery and
sentenced to ten years' imprisonment.
In his present applications, Applicant raises multiple grounds. These applications, however,
present a more serious question. This Court's records reflect that Applicant has filed fourteen prior
applications pertaining to these convictions. It is obvious from the record that Applicant continues
to raise issues that have been presented and rejected in previous applications or that should have
been presented in previous applications. The writ of habeas corpus is not to be lightly or easily
abused. Sanders v. U.S., 373 U.S. 1 (1963); Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1974).
Because of his repetitive claims, we hold that Applicant's claims are barred from review under
Article 11.07, § 4, and are waived and abandoned by his abuse of the writ. These applications are
dismissed.
Therefore, we instruct the Honorable Abel Acosta, Clerk of the Court of Criminal Appeals,
not to accept or file the instant applications for writs of habeas corpus, or any future application
pertaining to this conviction unless Applicant is able to show in such an application that any claims
presented have not been raised previously and that they could not have been presented in a previous
application for a writ of habeas corpus. Ex parte Bilton, 602 S.W.2d 534 (Tex. Crim. App. 1980).
Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Filed: December 5, 2012
Do not publish
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Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2010/03/30/Ronald_a_Katz_Tech_v._General_Motors.pdf': No such file or directory.
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244 F.2d 772
100 U.S.App.D.C. 324
Timothy REED, a minor, Appellant,v.Joseph D. BULMAN, Guardian Ad Litem of Timothy Reed, aminor, Appellee.
No. 13585.
United States Court of Appeals District of Columbia Circuit.
Argued April 25, 1957.Decided May 2, 1957.
Mr. Frank F. Roberson, Washington, D.C., with whom Mr. Jeremiah Collins, Washington, D.C., was on the brief, for appellant.
Mr. Sidney M. Goldstein, Washington, D.C., with whom Mr. Leo N. McGuire, Washington, D.C., was on the brief for appellee. Messrs. Joseph D. Bulman and Samuel Z. Goldman, Washington, D.C., also entered appearances for appellee.
Before EDGERTON, Chief Judge, and FAHY and BURGER, Circuit Judges.
PER CURIAM.
1
The question on appeal is whether the District Court abused its discretion in ordering that a fee awarded by the court to a guardian ad litem for a minor defendant should be paid from the estate of said minor in favor of whom judgment had been rendered in the litigation which gave rise to the appointment of the guardian ad litem. The alternative was for the District Court to order that the fee be paid by the unsuccessful plaintiffs. See section 10-105 D.C.Code 1951. We find no abuse of discretion in the order as made and it accordingly is
2
Affirmed.
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517 N.W.2d 631 (1994)
In the Matter of the ESTATE OF Joseph T. VOELLER, Deceased.
Gary HOFFART, Petitioner and Appellant,
v.
David VOELLER, Elizabeth Voeller, Marie Voeller Sutich, Robert S. Voeller, and Audrey S. Matteson, Respondents and Appellees.
Civ. No. 930406.
Supreme Court of North Dakota.
June 15, 1994.
*632 Walter M. Lipp, McClusky, for petitioner and appellant. Appearance by Gary Hoffart.
Michael S. McIntee, McIntee Law Firm, Towner, for respondents and appellees. Appearance by Elizabeth Voeller.
PER CURIAM.
Gary Hoffart appealed from a summary judgment entered in county court denying Hoffart's petition to probate a codicil to the will of Joseph Voeller, entered on a "Motion for Summary Judgment on Petition for Probate of a Codicil," filed by Voeller's children. Distribution of the estate has not been approved; discharge of the personal representative is not final; no Rule 54(b), NDRCivP, certification has been made. The judgment is a partial summary judgment; it is not final, and it is not appealable. Central Power Elec. Co-op v. C-K, Inc., 512 N.W.2d 711 (N.D.1994); Matter of Estate of Starcher, 447 N.W.2d 293 (N.D.1989); Matter of Estate of Erickson, 368 N.W.2d 525 (N.D.1985); Cf. Meyer v. City of Dickinson, 397 N.W.2d 460 (N.D.1986).
The appeal is dismissed.
VANDE WALLE, C.J., and SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.
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IN THE COURT OF APPEALS OF IOWA
No. 20-0781
Filed August 19, 2020
IN THE INTEREST OF C.M., J.M., and B.M.,
Minor Children,
J.M., Mother,
Appellant,
T.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Jennifer A. Benson,
District Associate Judge.
A mother and father separately appeal the juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
Donna Bothwell of Bothwell Law Office, Logan, for appellant mother.
William T. Early, Harlan, for appellant father.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
Karen Mailander of Mailander Law, PLC, Anita, attorney and guardian ad
litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
2
TABOR, Judge.
Jessica and Tony are the parents of three children under the age of five.
The juvenile court terminated their parental rights to those children, and they filed
separate petitions on appeal. Tony only challenges the denial of his motion to
continue the termination trial. Jessica contends (1) the State did not prove grounds
for termination, (2) the Iowa Department of Human Services (DHS) did not make
reasonable efforts to reunify their family, and (3) more time for reunification would
be in the children’s best interests. Finding no merit in these four claims, we affirm
on both appeals.
I. Facts and Prior Proceedings
The children at issue are J.M., who was born in September 2015; C.M., who
was born in December 2016; and B.M., who was born in January 2019.1 The DHS
first intervened in March 2016 when J.M. was just an infant, citing the parents for
a lack of supervision. That was the first of four founded child abuse assessments
against the parents. The ongoing concerns were substance abuse by both
parents, domestic violence perpetrated by Tony, and Jessica’s mental-health
impairments.
The juvenile court removed J.M. and C.M. from their home in April 2018 and
adjudicated them as children in need of assistance (CINA) two months later. They
have bounced around ever since, experiencing ten different placements through
the duration of the CINA case. A couple of those placements were back with
1Tony is the biological father of J.M. and B.M., and the legal father to C.M.
Paternity for C.M. was uncertain.
3
Jessica when she made strides in substance-abuse treatment. But those spells of
success were soon followed by setbacks, leaving the children in precarious
situations.
When B.M. was born in early 2019, his siblings were in relative placement.
Jessica resumed care of all three children that spring. But within a month she was
hospitalized in a mental-health emergency. And the DHS learned that she and
Tony were using methamphetamine while caring for the children. The DHS again
removed the children, placing the older children in foster care in late May 2019.
The baby’s whereabouts were unknown until early June when authorities found
him in Tony’s apartment. B.M. had scratches on his forehead and a painful case
of diaper rash.
Through the summer and fall of 2019, both parents continued to struggle
with drug and alcohol abuse. The most glaring incident occurred in mid-October
when emergency responders found Jessica unresponsive in a friend’s backyard.
Upon arrival at the hospital, she tested positive for methamphetamine and
benzodiazepines and had a blood alcohol level of .275. She spent several days in
intensive care. A few weeks later, she returned to the emergency room after again
consuming methamphetamine and alcohol as well as injecting the opioid, Dilaudid.
During those months, the parents attended supervised visits with the
children. But the interactions were not always positive. The children would act
out, and the parents had a hard time controlling or consoling them. By October,
the parents’ attendance at visits waned. In November 2019, neither Jessica nor
Tony participated in visits with the children. They attended only two visits in
4
December. Also that month, Jessica continued to abuse illegal drugs and suffer
mental-health crises, resulting in three more trips to the emergency room.
In January 2020, the State filed a petition to terminate parental rights. As
the juvenile court found, “At the beginning of March 2020, Jessica’s already serious
substance abuse and mental health issues escalated.” On March 6, the court
approved an application for involuntary hospitalization of Jessica as a chronic
substance abuser after holding a hearing under Iowa Code section 125.82 (2020).
That same day, the juvenile court heard testimony on the termination petition. The
court terminated parental rights in a May order. Both parents appeal.
II. Scope and Standards of Review
We review termination-of-parental-rights proceedings de novo. In re M.D.,
921 N.W.2d 229, 232 (Iowa 2018). We are not bound by the juvenile court’s
findings of fact. Id. But we give them weight, especially in assessing witness
credibility. Id. Despite the overarching de novo review for termination cases, we
review the denial of Tony’s motion to continue for an abuse of discretion. Id. An
abuse occurs when the court grounds its decision on reasons that are clearly
untenable. In re A.M., 856 N.W.2d 365, 370 (Iowa 2014). Fundamental to all
levels of review is our foremost attention to the children’s best interests. In re J.C.,
857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis
A. Motion to Continue
We start with Tony’s argument that the juvenile court abused its discretion
in denying his motion to continue. At the start of the termination hearing, Tony’s
counsel moved for a continuance. Counsel asserted: “I haven’t had a chance to
5
talk with my client really for several months, and I met with him just briefly this
morning but really haven’t had an opportunity to adequately prepare.” Jessica’s
attorney joined in the request for a continuance.
From the bench, the juvenile court ruled: “Based on the history of the case
and the fact that the children have been removed from their parents’ home in this
case since June of 2019, I am going to deny the motion to continue as further
delays of permanency are not warranted.” In its written ruling, the court expanded
on its rationale, blaming Tony’s lack of involvement in the CINA case for the
inability of his attorney to fully prepare for the termination trial. The court also noted
the attorneys, who were experienced in juvenile court and familiar with this case,
had ample time “to prepare a defense as to the statutory grounds for termination.”
Finally, the court reasoned it was not in the children’s best interests to delay
permanency.
Like the juvenile court, we find a delay would have been detrimental to the
best interests of J.M., C.M., and B.M. See M.D., 921 N.W.2d at 233. The court
did not abuse its discretion in denying a continuance. Tony had an opportunity to
be heard at the termination hearing. See Iowa Code § 232.112. But he chose to
present no evidence. We find the juvenile court properly exercised its discretion
in denying Tony’s motion to continue.
B. Statutory Basis for Termination
We next turn to Jessica’s argument that the State did not present clear and
convincing evidence to support the grounds for termination under Iowa Code
section 232.116(1). The juvenile court terminated Jessica’s rights under
6
paragraphs (e) and (l) as to all of the children, paragraph (f) as to J.M., and
paragraph (h) as to B.M.
When the juvenile court terminates based on several grounds, we may
affirm the order on any ground supported by the record. In re A.B., 815 N.W.2d
764, 774 (Iowa 2012). We find termination was proper under section 232.116(1)(l).
That paragraph applies if the evidence shows:
(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96 and custody has been
transferred from the child’s parents for placement pursuant to section
232.102.
(2) The parent has a severe substance-related disorder and
presents a danger to herself or others as evidenced by her prior acts.
(3) There is clear and convincing evidence that the parent’s
prognosis indicates that the child will not be able to be returned to
her custody of the parent within a reasonable period of time
considering the child’s age and need for a permanent home.
Iowa Code § 232.116(l).
The second element requires proof of “a severe substance-related
disorder.” Id. § 232.116(1)(l)(2). The legislature defined that term as “a
diagnosable substance abuse disorder of sufficient duration to meet diagnostic
criteria specified within the most current diagnostic and statistical manual of mental
disorders published by the American psychiatric association that results in
functional impairment.” See id. § 125.2(15).
At trial, the juvenile court granted the State’s request to take judicial notice
of the court order affirming Jessica’s March 2020 commitment under chapter 125
(dealing with substance-abuse related disorders). In that order, the court found
Jessica had been diagnosed at the Audubon County Hospital with “amphetamine
use disorder, severe.” The order noted health professionals recommended she be
7
committed to inpatient treatment because of her suicidal ideations, hallucinations,
and inability to make treatment decisions.2
On appeal, Jessica contends the State did not offer clear and convincing
evidence that she “continues to present a danger to herself and others.” She
insists any danger subsided following her inpatient commitment. She also points
out that during the CINA case she had some treatment successes and “long bouts
of sobriety.”
In our de novo review, we find the State offered clear and convincing
evidence that, as shown by her prior acts, Jessica presented an ongoing danger
to herself and her children because of her severe substance-abuse related
disorder. The record contains no evidence that her involuntary hospitalization,
which coincided with the time of the termination hearing, would resolve her
persistent and long-standing substance-abuse disorder. In fact, judging from her
past efforts at treatment, she likely continued to present a danger. For example,
her inpatient treatment at Heart of Iowa in the summer of 2018 did not result in
reunification with the children. And she continued to use methamphetamine
despite her outpatient treatment at Zion Recovery in the spring of 2019. Later that
summer, she left inpatient treatment at Heartland Family Services against medical
advice. Her hospitalizations precipitated by drug and alcohol abuse repeated
through the fall and winter of 2019. In early January 2020, she began outpatient
2 Jessica complains on appeal that “no evidence regarding the statements made
in the committal hearing was admitted in the termination case, including any
statements from health professionals.” Yet at trial, Jessica’s counsel objected to
the court taking judicial notice of those “sealed court filings.” The juvenile court
took judicial notice of the court order in the substance-abuse commitment case,
citing In re T.C., 492 N.W.2d 425, 429 (Iowa 1992).
8
treatment at Lydia House, only to quit after two days. At a visit with the children
on January 12, Jessica exhibited paranoid delusions. Six days later, she arrived
at the emergency room admitting to methamphetamine use.
This pattern of fits and starts with treatment bodes poorly for reunification.
At the time of the termination hearing, Jessica’s severe substance-abuse disorder
impaired her ability to make sound treatment decisions and posed a serious risk
to her own well-being and that of the children. We find clear and convincing
evidence in the record that, given her prognosis, Jessica was unable to resume
custody of the children within a reasonable time considering their young ages and
their need for a permanent home. We affirm termination under paragraph (l).
C. Reasonable Efforts
Jessica next argues the DHS did not make adequate efforts toward
reunification. She contends that when the court adjudicated the youngest child,
B.M., as a CINA, it did not hold an initial dispositional hearing as required by Iowa
Code section 232.102(9)(a). Jessica also complains she was only offered three
months of services to reunify with B.M.
In response, the State notes the family had already been involved with
juvenile court services for J.M. and C.M. when B.M. was born in January 2019.
The following June, the DHS removed all three children from Jessica’s care
because of her continued substance abuse and erratic behavior. In July 2019, all
parties agreed to a joint CINA adjudication and dispositional hearing. Jessica is
not entitled to relief on this procedural issue.
The DHS must “make every reasonable effort” to return children to their
home as quickly as possible consistent with their best interests. See In re C.B.,
9
611 N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code section 232.102(7)). “The
State must show reasonable efforts as a part of its ultimate proof the child cannot
be safely returned to the care of a parent.” Id. Our focus is on the parent’s
response to the services provided. Id. at 494. The State met its burden here. The
DHS offered services to Jessica consistent with the best interests of all three
children. But she was unable to overcome her parenting deficiencies, largely due
to her severe substance-abuse disorder. She is not entitled to relief on this issue.
D. Best Interests and Delay of Permanency
Jessica also argues giving her more time to reunify would be in the best
interests of the children. We disagree. We determine best interests under the
framework in Iowa Code section 232.116(2). That provision focuses on the
children’s safety, as well as the best placement for furthering their “long-term
nurturing and growth” and their “physical, mental, and emotional condition and
needs.” See Iowa Code § 232.116(2). Delaying permanency would not serve the
children’s best interests. The record shows the children suffer behavioral and
emotional setbacks after interactions with Jessica. The juvenile court believed
waiting to terminate parental rights “would be traumatic and detrimental to the
children’s futures.” In our de novo review, we agree with that assessment.
AFFIRMED ON BOTH APPEALS.
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418 F.3d 1093
UNITED STATES of America, Plaintiff-Appellee,v.Jose Luis GONZALEZ-FLORES, Defendant-Appellant.
No. 03-10656.
United States Court of Appeals, Ninth Circuit.
Submitted April 11, 2005.*
Filed August 12, 2005.
COPYRIGHT MATERIAL OMITTED Paul J. Mattern, Phoenix, AZ, for the defendant-appellant.
Joan G. Ruffennach, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-03-00650-SMM.
Before LAY,** B. FLETCHER, and HAWKINS, Circuit Judges.
BETTY B. FLETCHER, Circuit Judge.
1
Defendant-appellant Jose Luis Gonzalez-Flores ("Gonzalez") was convicted of alien smuggling for leading a group of nearly two dozen Mexicans into the United States across the desert. In this direct appeal, Gonzalez claims that the evidence was insufficient to support his conviction and that certain testimony admitted at trial was irrelevant and unduly prejudicial. Gonzalez also attacks his sentence on Booker grounds; the government argues in response that he waived his Sixth Amendment rights.
2
We hold that the evidence was sufficient to support the conviction and that the error arising from the admission of the prejudicial testimony was harmless, and therefore we affirm the conviction. However, we reject the government's contention that Gonzalez waived his Sixth Amendment rights when his attorney moved to exclude the prejudicial testimony. We therefore remand the case pursuant to United States v. Ameline.
I. BACKGROUND
3
Gonzalez was convicted on one count of bringing in illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(i). The following facts emerged at trial: In late May 2003, a group of twenty-three Mexican nationals set out on foot from Mexico across the desert into the United States. Three members of the group were detained by a border patrol agent on a road near Interstate 8 in Arizona; these individuals told the agent that there were approximately twenty other members of their group still in the desert. A search and rescue operation was initiated, and border patrol agents found nineteen members of the group in the desert. Two teenage girls from the group were suffering from severe heat exhaustion and respiratory problems and were airlifted to a hospital. Another agent, responding to a report of an illegal alien, encountered and detained Gonzalez at a barn off I-8 near Yuma, Arizona.
4
Three members of the group, Miguel Gonzalez-Flores (no relation to defendant), Eduardo Salinas-Zagal, and Everardo Salinas-Zagal (Eduardo's brother), were detained as material witnesses and deposed on videotape two weeks after the crossing.1 Gonzalez's lawyer cross-examined the witnesses in the videotaped depositions.
5
The videotapes of the three depositions were played for the jury. All three witnesses testified that they were Mexican nationals and that, led by the defendant, they had crossed the border other than at a port of entry. Miguel met the two brothers at a border town in Mexico, and they discussed hiring a guide to help them walk across the border. They then met Gonzalez, who indicated that he knew the way through the desert, and so they went with him. They expected to pay Gonzalez for being their guide.
6
Gonzalez led a group of nearly two dozen people — including Miguel, Eduardo, and Everardo — through the desert and across the border. The group spent a full night and half a day walking in the desert. At some point during the trek, the group ran out of water, and Gonzalez left the group to go look for some. Sometime thereafter, border patrol agents found the group.
7
The initial indictment charged that Gonzalez placed lives in jeopardy in connection with the offense. Noting that any injuries to members of Gonzalez's group would not go to an element of the crime of bringing in aliens, the court questioned the parties prior to trial as to the propriety of including this fact in the indictment. Gonzalez's lawyer argued: "Since it's only a sentencing issue, I don't think we should concern the jury with it. . . . I don't believe it should be included in the indictment or brought to their attention or have them in any way find anything about it." Gonzalez himself made no statement on the matter. The court ruled that the matter of the harm to others was a sentencing issue and not an element; consequently, evidence of the injuries sustained by individuals Gonzalez brought across the border should be presented at sentencing rather than to the jury at trial.2
8
Just before the commencement of the trial, however, the court revisited the subject of the group members' injuries. Gonzalez's lawyer asked the judge to confirm that no testimony as to the two girls' heat stroke would be permitted and suggested he would stipulate to the injuries, if necessary, at sentencing. The government responded that the girls' distress "was an important part of the event, and it's certainly relevant with respect to sentencing issues." The court ruled: "I don't want to get too far afield if that's not an element of the offense, if it's a sentencing issue. But I think the government is entitled to some latitude . . . and I'm going to allow [the government] to get into some of that evidence, about the results of what happened. So your objection's overruled."
9
During the trial, a border patrol agent described finding the two girls, who needed "immediate medical care, advanced medical care." The agent characterized the cause of the medical distress as "[h]eat exhaustion turning into heatstroke." According to the agent, during the helicopter flight to the hospital, one of the girls stopped breathing and required resuscitation by rescue breathing.
10
At the close of the government's case, the defense moved for a judgment of acquittal and for a mistrial because the admission of the evidence of the two girls' heat stroke violated Federal Rules of Evidence 402, 403, or both. The court denied both motions. As to the mistrial motion, the court explained that the testimony in question "helps to explain the circumstances of the other testimony of why [Gonzalez] left to find water and to determine whether he was in fact assisting in bringing people into the United States." Additionally, the court didn't "believe it was so prejudicial."
11
Gonzalez presented no defense; the jury convicted him. Reiterating the evidentiary argument about the two girls' heat stroke (among other arguments), Gonzalez moved for a new trial. The court denied the motion, once again finding that the probative value of the heat stroke testimony outweighed any possible prejudicial value.
12
The presentence report (PSR) recommended three sentence enhancements for specific offense characteristics: (1) the number of aliens smuggled; (2) the fact that Gonzalez brought people into the desert with insufficient water, thereby recklessly creating a substantial risk of death or serious bodily injury; and (3) the fact that the two girls suffered severe heat distress, which constituted serious bodily injury sustained in connection with the offense. Gonzalez objected to the last of these enhancements, arguing that the PSR overstated the seriousness of the injuries and as a result added too many levels. The district court accepted the base offense level from the PSR, granted a two-level downward departure, and sentenced Gonzalez to 33 months in prison (the low end of the Guideline range), a special assessment of $100, and two years supervised release.
13
Gonzalez timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II. ANALYSIS
A. Sufficiency of Evidence
14
Gonzalez's sufficiency-of-evidence challenge is easily rejected, as it rests on the demonstrably erroneous premise that none of the videotaped depositions that formed the backbone of the prosecution's case was properly admitted into evidence. The record flatly contradicts Gonzalez's claim: the trial minutes and the transcript of the trial reveal that all three tapes were admitted. Gonzalez does not argue, nor could he plausibly, that the videotaped depositions themselves did not provide sufficient evidence to sustain his conviction. Gonzalez's sufficiency-of-evidence challenge must fail.
B. Evidentiary Error
15
Gonzalez argues that the admission of testimony about the heat stroke suffered by the two girls violated several provisions of the Federal Rules of Evidence. Because we conclude that the evidence should have been excluded under Rule 403, which prohibits evidence whose "probative value is substantially outweighed by the danger of unfair prejudice," we need not discuss the other rules Gonzalez cites. However, because we determine that the admission of the unduly prejudicial testimony was harmless, we affirm Gonzalez's conviction.
1. Rule 403
16
A trial court's determination that the prejudicial effect of particular evidence did not substantially outweigh its probative value under Federal Rule of Evidence 403 is reviewed for an abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004). As to a criminal defendant, "unfair prejudice" refers to "the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In other words, unfairly prejudicial evidence is that having "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. (citation and internal quotation marks omitted).
17
The probative value of evidence against a defendant is low where the evidence does not go to an element of the charge. See United States v. Ellis, 147 F.3d 1131, 1135 (9th Cir.1998); United States v. Arambula-Ruiz, 987 F.2d 599, 604-05 (9th Cir.1993). In this case, the government charged Gonzalez with violating 8 U.S.C. § 1324(a)(1)(A)(i), a crime with the following elements:
18
First, the defendant brought a person who was an alien into the United States at a place other than a designated port of entry or at a place other than as designated by a United States immigration official;
19
Second, the defendant knew that the person was an alien; and
20
Third, the defendant acted with the intent to violate the United States immigration laws by assisting that person to enter the United States at a time or place other than as designated by a United States immigration official or to otherwise elude United States immigration officials.
21
Ninth Circuit Model Criminal Jury Instructions 9.1 (2003). As a logical matter, the fact that two girls in Gonzalez's group suffered heat stroke does not affect the probability (1) that Gonzalez brought aliens into the United States other than at a recognized port of entry, (2) that Gonzalez knew they were aliens, or (3) that Gonzalez intended to violate U.S. immigration law by bringing them in. The heat stroke is a mere detail in the story of the offense. The district court specifically ruled that the indictment's reference to the girls' injuries was surplusage because it was an issue relevant to sentencing rather than an element of the offense. We agree. Because testimony about the girls' heat stroke does not go to any of the elements of the crime with which Gonzalez was charged, we must consider its probative value low. Ellis, 147 F.3d at 1135; Arambula-Ruiz, 987 F.2d at 604-05.
22
"Where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992). Though the prosecution did not devote a great deal of time to the girls' heat stroke, the testimony presented certainly could have prejudiced Gonzalez unfairly. The border agent's description of the young age and dire condition of the two girls — both of whom needed to be flown to a hospital and one of whom required resuscitation by rescue breathing — very well could have triggered an emotional response from the jury members, who were likely to be sympathetic to the girls and consequently want to punish the man who caused their heat stroke by bringing them into the desert with insufficient water. Moreover, the prosecution's closing argument drove home to the jury the connection, implicit from the testimony, between the actions of Gonzalez and the injuries to the girls:
23
[T]he defendant is the one who told the members of the group how much water to bring to try to walk across 25 miles of desert in the summer heat in Arizona. That was perhaps the second most important decision they would have to make other than who was going to lead them: how much water. You can't survive without water. And the defendant, as the leader of the group, told them how much water they would need. He was wrong, but he's the one who told them how much to bring.
24
. . .
25
There were people in distress. He was responsible.
26
We therefore find at least a "modest likelihood of unfair prejudice." Hitt, 981 F.2d at 424.
27
The evidence about the two girls' heat stroke therefore had "an undue tendency to suggest decision on an improper basis." Old Chief, 519 U.S. at 180, 117 S.Ct. 644 (citation and internal quotation marks omitted). The likelihood of unfair prejudice was high enough to outweigh the minimal probative value of this evidence; therefore its admission was an abuse of discretion under Rule 403.
2. Harmless Error
28
Where we discover an error not of constitutional magnitude, "[w]e must reverse unless there is a'fair assurance' of harmlessness or, stated otherwise, unless it is more probable than not that the error did not materially affect the verdict." United States v. Morales, 108 F.3d 1031, 1040 (9th Cir.1997) (en banc) (citation omitted). The burden to show the harmlessness of the error is on the government, and in the rare case in which we find ourselves in equipoise as to the harmlessness of the error, reversal is required. See United States v. Seschillie, 310 F.3d 1208, 1214-16 (9th Cir.2002).3
29
In this case, the government advances no argument that the evidentiary error was harmless.4 Usually when the government fails to argue harmlessness, we deem the issue waived and do not consider the harmlessness of any errors we find. See, e.g., United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir.2002); United States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir.2001), amended by 246 F.3d 1150. This approach makes perfect sense in light of the nature of the harmless-error inquiry: it is the government's burden to establish harmlessness, and it cannot expect us to shoulder that burden for it.
30
However, we recognize that no interest is served — and substantial time and resources are wasted — by reversal in those unusual cases in which the harmlessness of any error is clear beyond serious debate and further proceedings are certain to replicate the original result. Fortunately, our precedents do not foreclose the position that an appellate court's sua sponte consideration of harmless error is appropriate on occasions of this type.
31
Several of our sister circuits have developed a useful approach for identifying those extraordinary cases in which an appellate court should sua sponte consider the harmlessness of an error it has identified. In an order denying a petition for rehearing in United States v. Giovannetti, 928 F.2d 225 (7th Cir.1991) (per curiam order), the Seventh Circuit considered the harmless-error waiver question in some detail. The court recognized that requiring courts to consider harmless error even where the government has not argued it would be burdensome to reviewing courts, which would be obligated to search through large records without guidance from the parties, and could encourage "salami tactics" by the government, which could focus its initial briefing exclusively on whether error has occurred and if it loses, petition for rehearing on the basis of harmless error. Id. at 226. However, the court also took note of the potential costs to third parties and to the system brought about by needless relitigation of cases in which the error did not make any difference. Id. at 226-27. Balancing these considerations, the court adopted the following rule: "[W]e have discretion to overlook a failure to argue harmlessness, and in deciding whether to exercise that discretion the controlling considerations are the length and complexity of the record, whether the harmlessness of the error or errors found is certain or debatable, and whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court." Id. at 227. Several circuits have followed or approvingly cited Giovannetti. See United States v. Torrez Ortega, 184 F.3d 1128, 1136 (10th Cir.1999); United States v. McLaughlin, 126 F.3d 130, 135 (3d Cir.1997); United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.1997); Horsley v. Alabama, 45 F.3d 1486, 1492 n. 10 (11th Cir.1995); Lufkins v. Leapley, 965 F.2d 1477, 1481-82 (8th Cir.1992); United States v. Pryce, 938 F.2d 1343, 1347-48 (D.C.Cir.1991) (opinion of Williams, J., announcing the judgment of the panel); see also United States v. Dolah, 245 F.3d 98, 107 (2d Cir.2001) ("We have discretion to consider the harmlessness of an alleged error even though the Government has not argued this line of defense."), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 64, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); cf. United States v. Rodriguez-Preciado, 399 F.3d 1118, 1142-43 (9th Cir.2005) (Berzon, J., dissenting in part) (touting the Giovannetti approach while noting that the Ninth Circuit has yet to consider it).
32
We find the Seventh Circuit's analysis persuasive, and we agree that the government's failure to argue that an error is harmless does not categorically preclude our consideration of that question. We also find helpful the three factors — the length and complexity of the record, whether the harmlessness of an error is certain or debatable, and the futility and costliness of reversal and further litigation — that the Seventh Circuit considers in determining when it is appropriate to recognize an error's harmlessness notwithstanding the government's failure to argue it. At the same time, we are particularly sensitive to the Seventh Circuit's concerns that sua sponte consideration of harmlessness will often burden reviewing courts and give the government too many chances to argue harmless error. Even more troubling, the practice may unfairly tilt the scales of justice by authorizing courts to construct the government's best arguments for it without providing the defendant with a chance to respond. See, e.g., Stuard v. Stewart, 401 F.3d 1064, 1067 (9th Cir.2005).
33
Mindful of these risks, we believe that while all three Giovannetti factors are relevant to a court's determination of whether to engage in harmless-error review on its own initiative, the second factor — the court's certainty as to the harmlessness of the error — is of particular importance. See Rodriguez-Preciado, 399 F.3d at 1143 (Berzon, J., dissenting in part) ("[T]he touchstone of whether courts should reach harmless error sua sponte is the extent to which the harmlessness of the error is open to question."); Pryce, 938 F.2d at 1348 (opinion of Williams, J., announcing the judgment of the panel) ("Where the government does not raise the harmless error issue, I would deem errors `harmless' only where satisfaction of that standard is beyond serious debate." (emphasis in original)); cf. Lufkins, 965 F.2d at 1482 (recognizing harmless error sua sponte where "the finding of harmlessness is beyond reasonable argument"). If the harmlessness of the error is at all debatable, prudence and fairness to the defendant counsel against deeming that error harmless without the benefit of the parties' debate. We agree with the observation of our colleague from the D.C. Circuit that "where the case is at all close, defense counsel's lack of opportunity to answer potential harmless error arguments may lead the court to miss an angle that would have shown the error to have been prejudicial." Pryce, 938 F.2d at 1347 (opinion of Williams, J., announcing the judgment of the panel). We therefore conclude that sua sponte recognition of an error's harmlessness is appropriate only where the harmlessness of the error is not reasonably debatable. Since we find this condition satisfied in Gonzalez's case, we hold that the evidentiary error we have identified was harmless and affirm the conviction.
34
The record here is small and simple, and we have no difficulty concluding that allowing the jury to hear testimony about the girls' heat stroke was undeniably harmless and that reversal and further litigation would be futile. Gonzalez's trial lasted less than two days, and the evidence against him was overwhelming. Three witnesses who were part of the group Gonzalez led across the desert testified that Gonzalez did exactly what he was charged with doing. The elements of the crime were easily established. Gonzalez put on no defense.
35
We have no doubt that the jury would have convicted Gonzalez notwithstanding the unduly prejudicial evidence pertaining to the girls' heat stroke. The record here does not merely provide a "`fair assurance' of harmlessness," Morales, 108 F.3d at 1040 (citation omitted); it leads us inexorably to the conclusion that the error's harmlessness is beyond serious debate. If we were to send this case back for retrial, the government would play the same videotaped depositions for the jury, and the jury would reach the same verdict. We therefore hold that the admission of testimony concerning the heat stroke was harmless, and we affirm Gonzalez's conviction.
C. Sentencing Issues
36
Gonzalez also claims his sentence is unconstitutional under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Here, Gonzalez received three sentence enhancements based on facts found by the judge under a standard less than beyond a reasonable doubt. These facts were: (1) the number of aliens smuggled; (2) the fact that Gonzalez brought people into the desert with insufficient water, thereby recklessly creating a substantial risk of death or serious bodily injury; and (3) the fact that the two girls suffered severe heat distress, which constituted serious bodily injury sustained in connection with the offense.
37
The government claims that Gonzalez waived his Sixth Amendment rights because the government offered to present the fact of the heat stroke to the jury and Gonzalez's lawyer rejected this offer by urging the court to strike the matter from the indictment in an (ultimately unsuccessful) attempt to keep the girls' heat stroke away from the jury. The government misapprehends the strict standards for waiver of constitutional rights generally and for the waiver of the jury trial right in particular.
38
We have recently summarized the principles governing the waiver of constitutional rights:
39
Waiver is the intentional relinquishment or abandonment of a known right. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. Therefore, presuming waiver from a silent record is impermissible.
40
United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir.2004) (citations, internal quotation marks and source's alteration marks omitted).
41
In particular, we have held that "[t]he right to a jury trial may only be waived if the following four conditions are met: (1) the waiver is in writing; (2) the government consents; (3) the court accepts the waiver; and (4) the waiver is made voluntarily, knowingly, and intelligently." United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997). To ensure that a waiver is voluntary, knowing, and intelligent, the district court should:
42
inform the defendant that (1) twelve members of the community compose a jury, (2) the defendant may take part in jury selection, (3) a jury verdict must be unanimous, and (4) the court alone decides guilt or innocence if the defendant waives a jury trial. Furthermore, the district court should question the defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and freely chooses to waive a jury.
43
Id. (citation omitted). Though we have declined "to impose an absolute requirement of such a colloquy in every case," id. at 1003, in its absence we will find a valid waiver of the jury trial right only where there are strong indicia that the waiver was voluntary, knowing, and intelligent. See, e.g., United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985) (finding waiver of the jury trial right where the defendant discussed the matter with his lawyer, told the court he wished to waive the right, and executed a written waiver in the presence of the court).
44
Such indicia are wholly absent from Gonzalez's case. The record provides no indication that Gonzalez himself had considered the nature of the right the government claims his lawyer waived, or had any idea that his lawyer was waiving it, much less demonstrated an actual intent to abandon this right. Gonzalez himself was entirely silent while his counsel sought to exclude the fact of the two girls' heat stroke from the indictment — the act that the government contends amounted to a waiver of the jury trial right. We will not presume waiver from a silent record. Hamilton, 391 F.3d at 1071. Nor will we presume the waiver of one right based on the assertion of another. See Hays v. Arave, 977 F.2d 475, 477-78 (9th Cir.1992), overruled on other grounds, Rice v. Wood, 77 F.3d 1138, 1144 n. 8 (9th Cir.1996) (en banc). In the absence of strong indicia that Gonzalez voluntarily, knowingly, and intelligently waived his jury trial right, he is entitled to the full range of Sixth Amendment protection guaranteed under United States v. Booker.5
45
Because Gonzalez's sentence was enhanced under a mandatory-guideline regime based on facts not admitted by him or proved to a jury beyond a reasonable doubt, his Sixth Amendment right to a jury trial was violated. Booker, 125 S.Ct. at 749-50. Although Gonzalez did not waive this right, he did not raise the Sixth Amendment objection at sentencing. We review unpreserved Booker violations for plain error. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc). Here, though there was error, and it was plain, the third prong of the plain-error inquiry — whether the error affected Gonzalez's "substantial rights" — is in doubt, because "it is not possible to reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory." Id. at 1084. Therefore, in accordance with United States v. Ameline, we remand so that the district court may answer this question and, if necessary, resentence Gonzalez in a manner consistent with Booker and Ameline. See id. at 1084-85. Gonzalez may, of course, opt out of such resentencing by promptly notifying the district court of his desire to do so. Id. at 1084.
III. CONCLUSION
46
The evidence was sufficient to support the conviction. Testimony pertaining to the heat stroke suffered by two members of the party Gonzalez led across the desert was unduly prejudicial, and the district court abused its discretion by admitting it. However, from our review of this uncomplicated record, we find it to be beyond debate that the error was harmless and that reversal and retrial would be futile. Therefore we affirm Gonzalez's conviction.
47
Gonzalez did not waive his Sixth Amendment rights when his lawyer tried to keep evidence of the heat stroke away from his jury. Although Gonzalez was sentenced in violation of the Sixth Amendment, he did not object in the district court and therefore we review for plain error. Because we cannot answer the plain error question on this record, we remand in accordance with United States v. Ameline.
48
AFFIRMED IN PART; REMANDED.
Notes:
*
This panel unanimously finds this case suitable for decision without oral argumentSee Fed. R.App. P. 34(a)(2).
**
The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation
1
To avoid confusion, we refer to the deposed witnesses by their first names
2
This discussion took place on September 2, 2003, more than nine months before the Supreme Court decidedBlakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
3
In spite of our en banc decision inMorales, we find in our case law a handful of stray passages reciting the harmless-error rule in an inartful fashion that reverses the presumptions delineated in Morales by conditioning reversal on a showing that the non-constitutional error more likely than not affected the verdict rather than requiring reversal unless the error more likely than not did not affect the verdict. See, e.g., United States v. Verduzco, 373 F.3d 1022, 1032 n. 6 (9th Cir.2004); United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.2004). Similar distortions have plagued our precedents concerning harmless error in the civil context. See Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir.2005) (observing that "[i]n a somewhat contradictory fashion, . . . we have formulated two variations of the test for prejudice in civil cases"). Fortunately, two fairly recent opinions, one in the criminal context and one in the civil context, have thoughtfully considered the nature of the harmless-error inquiry and confirmed that an error presumptively requires reversal and the burden is on the government to demonstrate otherwise by showing that the error was more probably than not harmless. See Obrey, 400 F.3d at 699-701; Seschillie, 310 F.3d at 1214-16. In light of the extensive consideration and forceful answers these decisions have given to the harmless-error question, we feel we are on safe ground in adhering to the position set forth by our en banc court in Morales (and generally followed in our case law) and treating as inadvertent the contrary formulations set out in the following cases since Morales: United States v. Bussell, 414 F.3d 1048, 1059 (9th Cir.2005); Verduzco, 373 F.3d at 1032 n. 6; Pang, 362 F.3d at 1192; United States v. Hanna, 293 F.3d 1080, 1085 (9th Cir.2002); United States v. Nguyen, 284 F.3d 1086, 1089 (9th Cir.2002); United States v. Angwin, 271 F.3d 786, 798 (9th Cir.2001); United States v. Jimenez Recio, 258 F.3d 1069, 1087 (9th Cir.2001); United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.2000) (per curiam); United States v. Ciccone, 219 F.3d 1078, 1082 (9th Cir.2000); United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir.2000); United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir.1999); United States v. Ramirez, 176 F.3d 1179, 1182 (9th Cir.1999).
4
Although the government mentions that a harmless error analysis applies, it makes no argument on this score nor advances any theory about how any errors here were harmless. "Issues raised in a brief which are not supported by argument are deemed abandoned."Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1182 (9th Cir.2001).
5
Our analysis of the waiver question is unaffected by our recent decision inUnited States v. Cardenas, 405 F.3d 1046 (9th Cir.2005), in which we rejected a defendant's claim that his waiver of the right to appeal his sentence was rendered involuntary and unknowing by the Supreme Court's subsequent decision in Booker. Id. at 1048. Gonzalez's claim is not that the change in law retroactively undermined the voluntariness of an otherwise-effective waiver; rather, he claims that he did not intend to waive any right to begin with.
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16 So.3d 827 (2009)
PASCO
v.
STATE.
No. 2D08-2551.
District Court of Appeal of Florida, Second District.
August 21, 2009.
Decision without published opinion Affirmed.
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.
OFFICE OF THE AtTORNEY GENERAL OF TEXAS
AUSTIN
Eoxmmble D. C. 0r.o~
Stat. IughVb~ Ea@neer
Auttln, Texar
Darr 31rr
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ba0r tb fomg0irrq r66t6, YOU vi6h to b c4*t6ea
vhether or not there lr any llabllity on the part o? the texa8
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certain prorl6lon6 of the ilorkment6 Companutlon L8v vow adopt-
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stat* vs. Eoluanera
"4" Tdx. Ctr. App.) 16 8. W. (Od 556j61 59 C.-J.
pp. 19s~196$ Anraotationr ia X3 A. L.,R. pp. 1?76-1?el utd 2P A.
L. R. pp. 1492,a&93.
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the ~6'OrISfOIW Of E tia1* 66786, Yemaim' &aotateu CIrIl stat-
atas, t&e? thw fad8 rot forth.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2559
___________
TRI THANH NGUYEN, Appellant
v.
FRANKLIN COUNTY SHERIFFS DEPARTMENT;
DEPUTY STROBLE; DEPUTY CARTER;
DEPUTY HALL; SHERIFF DUANE ANTHONY;
OTHER UNKNOWN COUNTY OFFICERS; FRANKLIN COUNTY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 10-cv-01866)
District Judge: Honorable A. Richard Caputo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2013
Before: SCIRICA, JORDAN and GREENBERG, Circuit Judges
(Opinion filed January 29, 2013)
___________
OPINION
___________
PER CURIAM
Appellant, Tri Thanh Nguyen, appeals pro se from the judgment entered against
him by the United States District Court for the Middle District of Pennsylvania. For the
following reasons, we will affirm.
I.
Nguyen is a Pennsylvania inmate who was incarcerated at the Franklin County Jail
(“FCL”). In September 2010, he commenced a civil rights action under 42 U.S.C. § 1983
in the District Court against the Franklin County Sheriff’s Department and four of its
employees—Sheriff Anthony, and Deputies Stroble, Carter, and Hall. In the complaint,
Nguyen alleged that, in October 2008, while detained at the FCJ pending trial on sexual
assault charges, he was escorted by Franklin County deputies to the Franklin County
Courthouse, placed in a group holding cell, and left unattended. While in the group cell,
one of the other inmates slipped out of his handcuffs and assaulted Nguyen. Nguyen
claimed that he was assaulted due to the “lax transportation practices of the Franklin
County Sheriffs, which was known to and ratified by the defendants.” (Compl., Dist. Ct.
Dkt. # 1, at ¶ 34.) Specifically, Nguyen alleged that the defendants had customs and
policies in place that disregarded an excessive risk to inmates in protected classes, and
that, despite being on notice of their deficient polices, the defendants failed to properly
train and supervise deputies with respect to inmate safety. Nguyen claimed that the
2
defendants’ conduct violated his rights under the Fifth, Eighth, and Fourteenth
Amendments.
The matter was referred to a Magistrate Judge who recommended that: (1) the
District Court dismiss Nguyen’s claims under the Fifth Amendment because the
defendants are not federal actors; (2) the District Court dismiss Nguyen’s claims under
the Eighth Amendment because he had not yet been adjudicated guilty of a crime, see
Bell v. Wolfish, 441 U.S. 520, 535-37 & n.16 (1979); (3) the District Court dismiss
without prejudice Nguyen’s claims against Deputies Stroble, Carter, and Hall because
Nguyen did not claim that they were personally involved in the alleged misconduct, see
Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995); and (4) Franklin County
be substituted as a defendant in place of the Franklin County Sheriff’s Department
because the Sheriff’s Department is not a separate entity.1 The District Court adopted the
Magistrate Judge’s Report and Recommendation, and ordered Nguyen to proceed solely
on his Fourteenth Amendment claims against Franklin County and Sheriff Anthony.
The remaining defendants moved for summary judgment. The Magistrate Judge
recommended that their motion be granted on the grounds that: (1) Nguyen failed to
establish liability against Franklin County and Sheriff Anthony in his official capacity
because he did not demonstrate that they maintained an unconstitutional custom or policy
that caused the alleged injury, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);
1
The Magistrate Judge also recommended that the District Court dismiss without
3
(2) Nguyen failed to establish liability under a “failure to train” theory because he did not
submit any evidence concerning inadequate training, see Carter v. City of Phila., 181
F.3d 339, 357 (3d Cir. 1999); and (3) Nguyen failed to establish liability under the “state-
created danger” doctrine because he did not show that his injury was foreseeable or that
the defendants acted with sufficient culpability, see Bright v. Westmoreland Cnty., 443
F.3d 276, 281 (3d Cir. 2006). The District Court agreed, and, by order entered April 20,
2012, entered summary judgment in favor of the defendants. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s order dismissing a complaint under 28 U.S.C.
§ 1915(e)(2)(b). See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We likewise
exercise plenary review over the District Court’s order granting summary judgment. See
Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).
On appeal, Nguyen argues that he produced sufficient evidence to withstand
dismissal of his Eighth Amendment claims against Franklin County and Sheriff Anthony.
As noted above, however, the District Court dismissed Nguyen’s Eighth Amendment
claims on the ground that pre-trial detainees like Nguyen are protected by the Due
Process Clause of the Fourteenth Amendment, not the Eighth Amendment. We see no
error in the District Court’s conclusion. As the District Court correctly noted, the Eighth
prejudice several John Doe defendants that Nguyen named in the complaint.
4
Amendment applies only after the state “has secured a formal adjudication of guilt”
because, prior to that time, it has not acquired “the power to punish with which the Eighth
Amendment is concerned.” Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). To the
extent that Nguyen’s arguments can be construed as challenging the District Court’s
conclusion that he did not establish a Fourteenth Amendment violation because he did
not demonstrate the existence of a state-created danger, we agree with the District Court
that Nguyen failed to show that the defendants acted with sufficient culpability. See
Bright, 443 F.3d at 281.
We have reviewed the record and discern no error in the reasoning of either the
Magistrate Judge or the District Court regarding Nguyen’s other claims.
III.
For these reasons, we will affirm the judgment of the District Court.
5
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919 N.E.2d 527 (2006)
362 Ill. App.3d 1241
IN RE BUCHERT.
No. 2-05-0460.
Appellate Court of Illinois, Second District.
January 13, 2006.
Affirmed.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 38158
INSIGHT LLC, an Idaho limited liability )
company; DONALD F. HUTTON, an )
unmarried man; HLT REAL ESTATE )
LLC, an Idaho limited liability company; ) Moscow, September 2012 Term
THE EARLE-HENRION TRUST dated )
January 27, 1998, the sole and separate ) 2013 Opinion No. 48
property of DANIEL C. EARLE; and )
INDEPENDENT MORTGAGE LTD. CO., ) Filed: April 16, 2013
an Idaho limited liability company, )
) Stephen W. Kenyon, Clerk
Plaintiffs-Appellants, )
)
v. ) SUBSTITUTE OPINION, THE
) COURT’S PRIOR OPINION DATED
PATRICK GUNTER and MONICA ) JANUARY 24, 2013 IS HEREBY
GUNTER, husband and wife, ) WITHDRAWN.
)
Defendants-Respondents, )
)
and )
)
SUMMIT, INC., an Idaho corporation; )
RON HAZEL, an individual; SARAH )
HAZEL, spouse of RON HAZEL; )
DARREN BROTT, an individual; and )
SUSAN BROTT, spouse of DARREN )
BROTT, )
)
Defendants. )
________________________________________ )
Appeal from the District Court of the First Judicial District of the State of
Idaho, Bonner County. Hon. John T. Mitchell, District Judge.
The decision of the district court is vacated and this case is remanded for entry
of a judgment consistent with this Opinion. Costs on appeal are awarded to
Appellants.
Dean & Kolts, Coeur d’Alene, for Appellants. Charles R. Dean argued.
Ramsden & Lyons, Coeur d’Alene, for Respondents. Marc A. Lyons argued.
____________________________
W. JONES, Justice
1
I. NATURE OF THE CASE
This is an appeal from a district court trial regarding a dispute over two liens on real
property: a deed of trust and a mortgage. Appellants (“Insight”) are assignees of a mortgage
secured by 160 acres of real property owned by Summitt, Inc. (“Summitt”), which includes an
18-acre parcel of land that Summitt purchased from the Respondents (“the Gunters”). The
Gunters hold a deed of trust on the Gunter property.
II. FACTUAL AND PROCEDURAL BACKGROUND
Summitt owned a 142-acre parcel of land that it intended to develop into a residential
subdivision. Respondents, Pat and Monica Gunter owned an 18-acre plot of land that adjoined
Summitt’s 142 acres (“the Gunter property”). Not wanting to live next to a residential
development, the Gunters solicited Summitt’s president, Ron Hazel, to purchase the Gunter
property; the parties agreed to a price of $799,000. On April 21, 2006, the Gunters and Summitt,
through its president, Hazel, entered into a purchase and sale agreement for the Gunter property.
The agreement, prepared by Summitt, identified EasyWay Escrow (“EasyWay”) as the closing
agent for the transaction. The agreement provided $1,000 earnest money and the balance of the
purchase price was to be paid in “cash at closing.” Possession of the land was to be delivered at
closing on June 19, 2006.
After executing the purchase and sale agreement, Hazel contacted Independent Mortgage
Ltd. Co. (“IM”), seeking a loan of $799,000. IM agreed to loan Summitt $616,000 so long as
Summitt’s principals executed personal guarantees and secured the mortgage with 160 acres of
land including both the 142 acres already owned by Summitt and the 18 acres comprising the
Gunter property.
Shortly after the execution of the agreement, Hazel contacted Monica Gunter and
revealed that Summitt was unable to come up with the full amount of the purchase price. Hazel
informed her Summitt could pay $599,000 and asked the Gunters to finance the remaining
$200,000 of the purchase price, which the Gunters agreed to do. This conversation was
documented by notes taken by Monica Gunter and delivered to EasyWay. These notes do not
mention any other loan or financing contemplated by Summitt for the purchase of the Gunter
property.
Sandpoint Title was responsible for recording and providing title insurance for both the
IM mortgage and the Gunters’ deed of trust. Stephanie Brown prepared the documents related to
the IM/Summitt mortgage. Carol Sommerfeld, owner of EasyWay Escrow, prepared the
documents related to the Gunter/Summitt deed of trust. The district court found that Sommerfeld
2
was not aware of the mortgage executed between IM and Summitt. The district court also found
that the Gunters lacked knowledge of the IM/Summitt mortgage at the time of the closing,
because they were never informed of any financing by Summitt other than their own deed of
trust. Also, there was no reference to the IM mortgage in any part of the closing file. As to the
dispute of whether Hazel informed the Gunters or Sommerfeld of the IM/Summitt mortgage, the
district court found credible Sommerfeld’s and Monica Gunter’s testimony that they were not
informed of the IM/Summitt mortgage. It also found that IM knew of the Gunters’ deed of trust
because IM considered seeking a subordination agreement from the Gunters.
Hazel signed the IM/Summitt mortgage on June 19, 2006, at IM’s offices in Sandpoint,
Idaho. Later that same day Summitt executed a deed of trust in favor of the Gunters at
EasyWay’s office. All of the documents were delivered to Sandpoint Title by IM and EasyWay
for recordation. IM instructed Sandpoint that the IM/Summitt mortgage was to be recorded first.
The deed from the Gunters to Summitt was recorded on June 20, 2006, at 4:16 p.m. The
IM/Summitt mortgage was recorded that same day at 4:17 p.m., and the Gunter/Summitt deed of
trust was recorded at 4:18 p.m.
In 2007, Summitt defaulted on its obligations to both IM and the Gunters. Insight 1 filed a
Complaint on August 27, 2008, naming Summitt, Summitt’s principals, and the Gunters as
defendants. On November 26, 2008, the Gunters answered and denied that their deed of trust was
junior to the IM/Summitt mortgage. On February 17, 2009, Insight filed a motion for summary
judgment. The district court denied the motion because there was an issue as to who was the
initial encumbrancer. Insight filed a motion for reconsideration, which the district court denied.
The case was tried to the court on June 28, 2010, and the court issued its final order on August 2,
2010. A final judgment accompanied by a Rule 54(b) certificate was entered on August 6, 2010.
An Amended Judgment and Rule 54(b) certificate was entered on August 17, 2010. The Notice
of Appeal was filed on September 17, 2010. An Amended Notice of Appeal was filed on October
28, 2010.
After trial, the district court found that the closing of the Gunter/Summitt deed of trust
was a separate and independent transaction from the IM/Summitt mortgage. The court found that
the separate closings were not part of “one continuous transaction.” The district court further
found that the Gunters’ deed of trust effectively encumbered the Gunter property at the time the
transaction between Summitt and the Gunters closed. However, it found the IM mortgage on the
1
The IM/Summitt mortgage was assigned to Insight.
3
combined 160-acre parcel of land did not create an encumbrance on the Gunter property until
after the Gunter/Summitt transaction closed. The rationale was that the mortgage could not
encumber property that is not owned by the mortgagor. As a result, the Gunters’ deed of trust
was determined to be the “first encumbrance” on the Gunter property. The court also found that
IM was not a good faith purchaser—even though it recorded first—because it was aware of the
financing agreement between Summitt and the Gunters.
On appeal, Insight argues that the IM mortgage has priority as a matter of law because it
was a purchase money mortgage that was first recorded thus rendering its “good faith” irrelevant.
Insight also contends that the Gunters were not good faith purchasers and had imputed
knowledge of IM’s mortgage through the escrow agent, EasyWay. Respondents counter that the
Gunters’ deed of trust was the first encumbrance on the Gunter property; the IM mortgage was
not a purchase money mortgage; and even if it was a purchase money mortgage, the Gunters’
deed of trust effectively encumbered the land first and therefore had priority.
III. ISSUES ON APPEAL
1. Whether the district court erred in concluding IM had notice of the Gunters’ deed of trust.
2. Whether the district court erred in finding the IM mortgage was not a purchase money
mortgage.
3. Whether the district court erred in finding the Gunters’ deed of trust had priority.
IV. STANDARD OF REVIEW
This Court exercises free review over conclusions of law, Smith v. J.B. Parson Co., 127
Idaho 937, 941, 908 P.2d 1244, 1248 (1996), but will not set aside a finding of fact unless it is
clearly erroneous. Idaho R. Civ. P. 52(a). When a case is tried to a court, determinations as to the
credibility of witnesses, the weight of their testimony, their probative effect, and inferences
drawn from that testimony are the province of the district court. Estate of Skvorak v. Security
Union Title Ins. Co., 140 Idaho 16, 19–20, 89 P.3d 856, 859–60 (2004); Idaho Power Co. v.
Congeneration, Inc., 134 Idaho 738, 746, 9 P.3d 1204, 1212 (2000).
On review, the interpretation of a statute is an issue of law over which this Court
exercises free review. Idaho Fair Share v. Idaho Public Utilities Comm’n, 113 Idaho 959, 961–
62, 651 P.2d 107, 109–110 (1988), overruled on other grounds by J.R. Simplot Co. v. Idaho State
Tax Comm’n, 120 Idaho 849, 820 P.2d 1206 (1991). The primary function of the Supreme Court
when interpreting a statute is to give effect to the legislative intent, which should be derived,
where applicable, from the clearly expressed intent of the legislature. Payette River Prop.
Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho 551, 557, 976 P.2d 477, 483 (1999);
4
George W. Watkins Family v. Messenger, 118 Idaho 537, 539–40, 797 P.2d 1385, 1387–88
(1990).
V. ANALYSIS
Idaho is a race-notice recording state: “Every conveyance of real property . . . is void as
against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good
faith and for a valuable consideration, whose conveyance is first duly recorded.” I.C. § 55-812. A
purchase money mortgage “has priority over all other liens created against the purchaser, subject
to the operation of the recording laws.” I.C. § 45-112.
A. The district court’s finding that IM had notice of the Gunters’ Deed of Trust is
Clearly Erroneous.
The district court found that IM had actual notice of the Gunters’ deed of trust, because
IM considered a subordination agreement and instructed Sandpoint Title to record the IM
mortgage first. This finding is clearly erroneous.
The district court found that Summit executed the IM mortgage on June 19, 2006. The
district court further found that Summit executed the Gunters’ deed of trust also on June 19,
2006, but later in the day. It is not technically possible for IM to have notice of an encumbrance
on property before that encumbrance actually comes into existence. Though IM knew that
Summitt was intending to execute a deed of trust, that was notice of an intent to subsequently
encumber property, not notice of an actual encumbrance on property. Therefore, the district
court’s finding that IM had notice of the Gunters’ deed of trust is clearly erroneous.
B. The IM/Summitt Mortgage Was a Purchase Money Mortgage.
A purchase money mortgage is defined by statute as “a mortgage given for the price of
real property, at the time of its conveyance.” I.C. § 45-112. A purchase money mortgage is given
where the loan enables the purchaser to purchase the land securing the mortgage. It is executed
to secure the purchase money necessary to purchase the land. See Pulse v. North American Land
Title Co., 707 P.2d 1105, 1107–08 (Mont. 1985); Liberty Parts Warehouse, Inc. v. Marshall
County Bank & Trust, 459 N.E.2d 738, 739 (Ind. Ct. App. 1984); see also 55 Am. Jur. 2d
Mortgages §13, at 202 (1971). The purchase money mortgage must be executed in the same
transaction as the conveyance or acquisition of title. A deed of trust can be a purchase money
mortgage. Id. Idaho courts have not required that purchase money mortgages secure the purchase
money for the entire price of securing the property. See Skvorak, 140 Idaho at 18, 21, 89 P.3d at
858, 861 (securing purchase money with more than one purchase money mortgage).
5
In Skvorak, the Sylvesters agreed to purchase a large parcel of property from the
Skvoraks called Gold Cup. Id. at 18, 89 P.3d at 858. The Sylvesters obtained a mortgage from
Crown Pacific for the down payment of Gold Cup and executed a mortgage in favor of the
Skvoraks for the remaining purchase price. Id. These two mortgages were executed on the same
day, at different times, but outside of the presence of all the parties. Id. Crown Pacific recorded
its mortgage twelve days before the Skvoraks executed their mortgage. Id. After the Sylvesters
filed for bankruptcy, a dispute arose between the Skvoraks and Crown Pacific as to whose
mortgage had priority. This Court found that both parties held purchase money mortgages on
Gold Cup, and did not disturb the district court’s finding that both parties had knowledge of the
other’s mortgage. Id. at 21–22, 89 P.3d at 861–62. It was argued that the Supreme Court adopt
the Restatement approach, which provides that a vendor purchase money mortgage prevails
against a third party purchase money mortgage that are executed as part of one continuous
transaction. Id. This Court rejected said approach, and found that Idaho’s recording statutes
resolved this dispute. Id. As both parties had notice of the other’s encumbrance, priority was
resolved by the first party to record, and that party’s good faith was irrelevant. Id.
In the present case, three sub-issues must be addressed in determining whether the IM
mortgage was a purchase money mortgage. These sub-issues will be discussed in turn: (1)
whether the IM mortgage was given to enable Summitt to purchase the Gunter property; (2)
whether the IM mortgage and the Gunters’ deed of trust was part of one continuous transaction
involving the sale of the Gunter property; and (3) whether the taking of additional security
destroys the purchase money status of a mortgage.
1. The IM Mortgage Was Given to Enable Summitt to Purchase the Gunter
Property.
In the current matter, it is clear that the IM/Summitt mortgage was given as security for
the purchase of the Gunter property. The record indicates that Summitt sought to purchase the
Gunter property for $799,000. It also indicates that Summitt did not have the funds necessary to
close the transaction, so it approached IM about obtaining a loan for the entire purchase price.
IM ultimately provided $616,000 of the purchase money necessary to complete the acquisition of
the Gunter property. Like Skvorak, Summitt relied on more than one source to obtain the money
necessary to complete the transaction. See Skvorak, 140 Idaho at 16, 89 P.3d at 856. The primary
inquiry is whether the IM/Summitt mortgage was executed so as to enable Summitt to purchase
the Gunter property. It is evident that the IM mortgage was so executed, because the money was
6
given to the escrow agent handling the sale of the Gunter property, EasyWay. It was also only
given after IM examined the property Summitt sought to purchase.
Therefore, the IM mortgage was given as security for the purchase price of the Gunter
property.
2. The IM Mortgage and the Gunters’ Deed of Trust Were Part of One Continuous
Transaction.
Idaho Code § 45-112 requires that a purchase money mortgage be given “at the time of
[the land’s] conveyance.” This statutory language reflects the commonly recognized requirement
that a purchase money mortgage be granted as a part of “one continuous transaction involving
the purchase” of land. See Skvorak, 140 Idaho at 22, 89 P.3d at 862; see also, Van Patten v. Van
Patten, 784 P.2d 218, 220 (Wyo. 1989). The execution of the mortgage and the transfer of the
deed need not be strictly contemporaneous. See, e.g., Skvorak, 140 Idaho at 22, 89 P.3d at 862.
When a deed and mortgage are executed as part of the same transaction, the mortgage is not
granted to the mortgagee after the mortgagor has obtained title; rather, the mortgagor takes title
already encumbered by the mortgage. Liberty Parts Warehouse, 459 N.E.2d at 739.
Insight argues that the IM mortgage was part of one continuous transaction because
security instruments were signed on the same day within hours of each other, the mortgage funds
were sent to EasyWay, and all the documents were recorded together by Sandpoint Title. In other
words, the mortgage was merely one step of several necessary to accomplish a single transaction.
Respondents, however rely on the district court’s finding that the IM mortgage closed separately
from the Gunters’ deed of trust, because the “IM mortgage could not encumber property before it
is owned by the buyer.” Thus, they argue the Gunter/Summitt deed of trust must have occurred
before the IM mortgage.
The district court concluded that the IM mortgage was not a purchase money mortgage
because it was not part of one continuous transaction. The district court reasoned that the
mortgage and deed of trust closed at different times and at different locations. The district court
noted that Carol Sommerfeld closed the Gunter/Summitt transaction at the office of EasyWay,
while Stephanie Brown prepared all the documents related to the IM/Summitt transaction at the
IM offices. This evidence, to the district court, did “not reflect coordination of a single closing
effort” on the part of the parties. The district court noted that the Gunters did not have knowledge
of the IM mortgage and were not informed of the mortgage. This conclusion was clearly
erroneous.
7
The primary inquiry is whether the mortgage was intended as part of a single transaction.
Skvorak demonstrates that mortgages need not be executed in unison to be part of the same
transaction. In Skvorak, the two mortgages were executed at different times on the same day and
were not executed in the presence of all of the parties. 140 Idaho at 18, 89 P.3d at 858. In the
current matter, Hazel executed the IM/Summitt mortgage on June 19 and the Gunter/Summitt
deed of trust later that day. Also, the mere fact that the IM mortgage was signed at IM’s offices
and not in the presence of the Gunters is not fatal to the purchase money mortgage status of the
IM mortgage, because in Skvorak, both parties had purchase money mortgages even though one
of them was not signed in the presence of both the parties. Id. Likewise, the present case involves
one transaction with two mortgages enabling Summitt to purchase the Gunter property. A land-
sale transaction concludes upon the delivery of the deed. Barmore v. Perrone, 145 Idaho 340,
344, 179 P.3d 303, 307 (2008). Here, before the deed was delivered to Summitt, the proceeds
and documents were delivered in escrow to the title company. Therefore, there was only one
transaction.
The district court also found that the IM mortgage was not a purchase money mortgage
because it was only able to encumber the Gunter property at the time Summitt gained an
ownership interest in the Gunter property. But the district court’s reasoning neglects the very
nature of a purchase money mortgage, and presupposes that the mortgage was not a purchase
money mortgage in order to find that IM did not encumber the property when executed. Under
this standard, no purchase money mortgage could effectively encumber property before title
passes to the mortgagor, because the purchase money enables the mortgagor to acquire title to
the property. Insight rightly notes that applying the district court’s reasoning—that “[the IM]
mortgage could not encumber the Gunter property, because Summitt did not own the Gunter
property when the mortgage was signed,”—would preclude any purchase money mortgage from
being a purchase money mortgage. In a purchase money mortgage, title does not first pass to the
mortgagor, which is then encumbered; rather, title passes to the mortgagor already encumbered.
Liberty Parts Warehouse, 459 N.E.2d at 739. Nothing in Idaho’s jurisprudence precludes more
than one purchase money mortgage from being executed on land. See Skvorak, 140 Idaho at 16,
89 P.3d at 856. Therefore, since the IM mortgage provided the funds necessary to enable
Summitt to purchase the Gunter property, and since the money was not paid directly to Summitt
but to EasyWay, the Gunter property passed to Summitt already encumbered by the Gunters’
deed of trust and the IM mortgage.
8
In sum, the district court’s finding that the IM mortgage and Gunters’ deed of trust were
not part of one continuous transaction is clearly erroneous. The mortgage granted by IM was a
purchase money mortgage because it was executed to enable Summitt to purchase the property in
question, in the same transaction as the acquisition of title. The question next becomes whether
the taking of additional security by IM on the mortgage destroyed the purchase money status of
the IM mortgage.
3. The Taking of Additional Security Does Not Destroy the Purchase Money Status
of a Mortgage, But Serves As Guarantor of the Mortgage.
Whether the taking of additional security on a mortgage, beyond the land being
purchased, destroys the purchase money status of a mortgage, is a question of first impression.
As early as the 1800s, courts have recognized purchase money mortgages, even though
additional security was taken on a note. This additional security was often in the form of an
assignment or a deed of trust. See, e.g., Farmers’ & Mech. Sav. Co. v. McCabe, 73 Mo. App.
551, 553 (1898); Bliss v. Crosier, 34 N.E. 1075 (Mass. 1893). One particular New York case
from 1912 involved land given as additional security. See Hubbard v. Lydecker, 137 N.Y. Sup.
Ct. 714, 716 (N.Y.S. 1912). In Hubbard, a purchase money mortgage was given to purchase a lot
on Prospect Street. The purchase money mortgage also included a lien on a lot on Greenridge
Avenue as additional security. Id. The court held that the mortgage was primarily a lien on the
Prospect Street lot and that the Greenridge Avenue lot merely stood in the position of a
guarantor. Id.
The loan given by IM was given with the intent to enable Summitt to purchase the Gunter
property. But after examining the property, Insight wanted additional security. Insight agreed to
take a second mortgage on the adjoining 142 acres of Summitt property to guarantee the loan.
The IM mortgage was primarily a purchase money mortgage designed to enable Summitt to
purchase the property.
In sum, the IM mortgage was a purchase money mortgage that was not destroyed by the
taking of additional security by IM.
C. The District Court Erred in Concluding the Gunter Deed of Trust Took Priority.
Since both the IM/Summitt mortgage and the Gunter/Summitt deed of trust are purchase
money mortgages, the next issue is which security interest has priority.
Insight, argues that the IM mortgage has priority as a matter of law. Insight reads Skvorak
as holding that as between two purchase money mortgages, the first to record has priority.
Insight contends that the first party to record is the initial encumbrancer, and that the initial
9
encumbrancer’s knowledge is irrelevant. Second, Insight argues that the Gunters, even if they
lacked actual knowledge, had constructive notice of IM’s mortgage because it was recorded first,
and constructive notice under I.C. § 55-811 is imparted at the time it is deposited with the
recorder. Also, Insight contends that the Gunters had imputed inquiry notice of the IM mortgage,
because EasyWay should have known from its past transactions with Summitt that Summitt was
securing the purchase money with a mortgage from IM.
The Gunters contend that even if the IM mortgage is a purchase money mortgage,
Skvorak does not support Insight’s argument. The Gunters read Skvorak as only applicable when
both mortgages were part of one continuous transaction, and where both parties knew of the
other’s mortgage. The Gunters contend they are the initial encumbrancer based on the district
court’s finding that the IM mortgage and the Gunters’ deed of trust were not part of one
continuous transaction. In the alternative, the Gunters urge this Court to reconsider its earlier
rejection of § 7.2 of the Restatement.
The parties dispute who is the initial encumbrancer under Skvorak. Insight contends IM
was the initial encrumbrancer on the Gunter property, because the IM mortgage and the Gunters’
deed of trust were not separate transactions, but one continuous transaction. IM was, therefore,
the initial encumbrancer because it was the first to record. The Gunters argue the first
encumbrancer is the first lien to be executed in one continuous transaction. Therefore, they argue
IM was not the first encumbrancer, because it had knowledge of the Gunters’ deed of trust, and
its mortgage was a separate transaction. The district court concluded that because the IM
mortgage was a separate transaction, it was not valid upon its execution but only after the
Gunters’ deed of trust closed and transferred title of the Gunter property. Consequently, the
district court held that the Gunters’ deed of trust was necessarily the first to encumber the
property, and since IM had knowledge of the Gunters’ deed of trust, its mortgage was subsequent
to the Gunters’ deed of trust.
In Skvorak, “initial encumbrancer” is merely the characterization of the party against
whom subsequent purchasers are tested under the recording statutes. The court noted that the
good faith of the initial encumbrancer is irrelevant. It should be clarified that the good faith of
the initial encumbrancer is irrelevant as to subsequent encumbrancers, because the initial
encumbrancer cannot technically have notice of an encumbrance before it comes into existence.
But the issue presented in Skvorak was “the priority between a vendor purchase money mortgage
and a third party purchase money mortgage, where the vendor has notice of the third party’s
mortgage and it was recorded first.” 140 Idaho at 22, 89 P.3d at 862 (emphasis added). In
10
Skvorak, “each party knew or had constructive notice of the other party’s mortgage.” Id. at 21, 89
P.3d at 861. Quite simply, in a dispute involving priority between two mortgages in a single
transaction, where both parties are good faith encumbrancers of property for value, the first to
record has priority against all other subsequent mortgages. Id. at 23, 89 P.3d at 863.
A purchase money mortgage is given priority against other liens subject to the recording
laws. I.C. § 45-112. Idaho’s race-notice statute provides that “[e]very conveyance of real
property is . . . void as against any subsequent purchaser or mortgagee of the same property, or
any part thereof, in good faith and for valuable consideration, whose conveyance is first duly
recorded.” I.C. § 55-812. Our race-notice statute only voids a prior conveyance if (1) the
subsequent conveyance was made in good faith and for valuable consideration; and (2) the
subsequent conveyance is the first duly recorded. Idaho law defines “conveyance” as “the
instrument in writing by which any estate or interest in real property is created, alienated,
mortgaged or encumbered.” I.C. § 55-813. A conveyance does not depend upon when it is
recorded.
Here, the Summitt/IM mortgage was executed on June 19, 2006, before the
Summitt/Gunter deed of trust was executed. Therefore, the IM mortgage was the prior
conveyance and the Gunters’ deed of trust was the subsequent conveyance. Since the Gunters’
deed of trust was the subsequent encumbrance, the only way it could take priority over the IM
mortgage as the first encumbrance—where IM by default is a good faith encumbrancer against
subsequent encumbrancers—is if the Gunters were the first to record. The Gunters were not the
first to record. Therefore, their deed of trust is junior to the IM mortgage.
VI. CONCLUSION
This Court holds that IM was a good faith encumbrancer of the Gunter property; both the
Gunters and IM held purchase money liens on the Gunter property; and the IM mortgage takes
priority over the Gunters’ deed of trust. The judgment of the district court is, therefore, vacated
and remanded for entry of a judgment consistent with this Opinion. Costs on appeal are awarded
to Insight as the prevailing party. Neither party requested attorney fees on appeal.
Chief Justice BRUDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.
On Denial of Petition for Rehearing — April 10, 2013
W. JONES, Justice
Respondents, Pat and Monica Gunter (“Gunters”), petition this Court for rehearing in this
matter.
11
The Gunters contend that Idaho law indicates a preference for the liens of vendors against
other liens. The Gunters contend that Idaho should follow the law of other states which grant
priority to vendor purchase money mortgages. See Sutton Funding, LLC v. Mueller, 278 S.W.3d
702, 704–05 (Mo. Ct. App. 2009); ALH Holding Co. v. Bank of Telluride, 18 P.3d 742 (Colo.
2000); Giragosian v. Clement, 199 A.D.2d 656 (N.Y. 1993).
The Gunters thus contend for the first time that they had a vendor’s lien on the property,
which should take priority. This is a distinct theory from the purchase money mortgage theory on
which this case was originally brought. This Court will not consider issues raised for the first
time on appeal. Clear Springs Food, Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93
(2011). Much less will this Court consider arguments raised for the first time on petition for
rehearing after a decision has been rendered. The Gunters’ petition for rehearing is therefore
denied.
12
| {
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} |
10-3161-cv(L)
ASCAP v. MobiTV, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
Heard: October 11, 2011 Decided: May 22, 2012
Docket Nos. 10-3161-cv(L), -3310-cv(CON)
- - - - - - - - - - - - - - - - - - - - - -
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND
PUBLISHERS,
Defendant-Appellant,
v.
MOBITV, INCORPORATION, f/k/a/ IDETIC,
INCORPORATION,,
Appellee.
- - - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN and LYNCH, Circuit Judges, and RESTANI,* Judge, U.S.
Court of International Trade.
Appeal from the July 6, 2010, judgment of the United States
District Court for the Southern District of New York (Denise Cote,
District Judge), setting royalty for blanket public performance
license for music in the ASCAP repertory that is embodied in
television and radio content to be delivered to viewers and listeners
using mobile telephones. In re Application of MobiTV, Inc., 712 F.
Supp. 2d 206 (S.D.N.Y. 2010).
*
Honorable Jane A. Restani, of the United States Court of
International Trade, sitting by designation.
Affirmed.
Ira M. Feinberg, Hogan Lovells US LLP,
New York, N.Y. (Eleanor M. Lackman,
Chava Brandriss, Hogan Lovells US LLP,
New York, N.Y.; Catherine E. Stetson,
Hogan Lovells US LLP, Washington, D.C.;
Joan M. McGivern, Richard H. Reimer,
Christine A. Pepe, ASCAP, New York,
N.Y.; David Leichtman, Hillel I.
Parness, Bryan J. Vogel, Oren D.
Langer, Robins, Kaplan, Miller & Ciresi
L.L.P., New York, N.Y., on the brief),
for Defendant-Appellant.
Kenneth L. Steinthal, Greenberg Traurig,
LLP, San Francisco, Cal. (Joseph R.
Wetzel, Harris L. Cohen, Matthew L.
Reagan, Greenberg Traurig, LLP, San
Francisco, Cal., on the brief), for
Appellee.
(Michael E. Salzman, Hughes Hubbard &
Reed LLP, New York, N.Y.; Marvin L.
Berenson, John Coletta, Joseph J.
DiMona, Broadcast Music, Inc., New
York, N.Y., for amicus curiae Broadcast
Music, Inc., in support of Defendant-
Appellant.)
(Bruce G. Joseph, Andrew G. McBride, Wiley
Rein LLP, Washington, D.C., for amicus
curiae Cellco Partnership d/b/a Verizon
Wireless, in support of Appellee.)
JON O. NEWMAN, Circuit Judge.
This appeal concerns determination of the proper royalty the
Defendant-Appellant American Society of Composers, Authors and
Publishers (“ASCAP”) is entitled to receive for a blanket public
-2-
performance license for music in the ASCAP repertory that is embodied
in television and radio content to be delivered to viewers and
listeners using mobile telephones (sometimes called “handsets”). The
applicant for the license is Plaintiff-Appellee MobiTV, Inc. (“Mobi”),
which purchases programming from cable television networks and
transmits it to the wireless carriers to which consumers subscribe to
obtain wireless service on their handsets. When the parties could not
agree on a price for the performance rights to the music component of
Mobi’s offerings, ASCAP sought a reasonable rate in the District Court
for the Southern District of New York, acting as a rate court pursuant
to a consent decree. Following a bench trial, the District Court
(Denise Cote, District Judge) issued a judgment on July 7, 2010,
establishing various royalty rates, depending on the nature of the
programming, and designating the revenue bases to which those rates
apply. See In re Application of MobiTV, Inc., 712 F. Supp. 2d 206
(S.D.N.Y. 2010) (“MobiTV”). ASCAP appeals, contending that the
District Court’s rate formulation should have been based on the retail
revenues received by the wireless carriers from sales to their
customers, rather than the content providers’ wholesale revenues paid
by Mobi. We affirm.
Background
A. ASCAP
-3-
ASCAP represents about half of the nation’s composers and music
publishers. These composers grant to ASCAP the non-exclusive right to
license public performances of their music.1 ASCAP has an estimated
8.5 million musical works in its repertoire. Because of concerns that
ASCAP’s size grants it monopoly power in the performance-rights
market, it is subject to a judicially-administered consent decree, the
most recent version of which was entered into on June 11, 2001.2
United States v. ASCAP, No. 41-1395. 2001 WL 1589999, at *1 (S.D.N.Y.
June 11, 2001). Under this Second Amended Final Judgment (“AFJ2"),
ASCAP is required to issue a “Through-to-the-Audience” (“TTTA”)
license to any operator “that transmits content to other music users
with whom it has an economic relationship relating to that content.”
AFJ2 § V. A TTTA license effectively allows the licensee to pay a
single fee in exchange for the right of the licensee, as well as any
1
The bundle of rights created by American copyright law includes
the “exclusive right[] to do and to authorize . . . perform[ance of]
the copyrighted work publicly.” 17 U.S.C. § 106. Although most
aspects of a copyright are typically owned by the studio or company
commissioning the musical composition, it is customary to allow
composers and music publishers to retain this “public performance”
right. In order for music to be legally performed, the prospective
user must first acquire a license for this public performance right.
2
Broadcast Music, Inc. (“BMI”) represents most of the remaining
composers in the American market. It operates under a consent decree
similar to ASCAP’s. See United States v. BMI (Application of Music
Choice), 316 F.3d 189, 190 (2d Cir. 2003).
-4-
of its downstream partners, to perform any of the music in ASCAP’s
repertoire. Thus, for example, a radio broadcaster that transmits
music to various independent stations around the country could request
a TTTA license to cover the performances of any of the stations
receiving and playing its programming. The consent decree provides
that “[t]he fee for a [TTTA] license shall take into account the value
of all performances made pursuant to the license.” Id.
The AFJ2 obliges ASCAP to issue a TTTA license to any qualified
applicant seeking to perform ASCAP music within the United States.
Id. Upon request, ASCAP must quote a reasonable price for such a
license and enter into negotiations with the applicant. AFJ2 § IX(A).
If, following a predetermined negotiation period, the parties are
unable to reach agreement, either one may request the District Court
for the Southern District of New York, acting as “the rate court,” to
determine a reasonable rate.
B. Mobi
Mobi acts as a middleman between “content providers” – television
networks, record labels, and radio broadcasters – and wireless phone
carriers. To do that, Mobi aggregates content – television programs,
music videos, and the like – into a number of “channels” (with themes
such as “news,” “music,” and “comedy”) that wireless carriers then
offer to their customers as part of their phone subscription plans.
-5-
In addition to aggregating content, Mobi also provides the technology
infrastructure for delivering this content directly to viewers.3
Mobi’s primary offerings may be roughly divided into three types:
television channels, radio channels, and music video channels.4
Television channels consist of programs and clips acquired directly
from the networks. Radio channels are acquired from audio-only
content providers, such as National Public Radio, ESPN Radio, or DMX,
Inc (“DMX”). Music video channels feature music videos that Mobi
acquires from various record labels. In the case of television and
radio channels, Mobi has little control over the content that is
ultimately placed into the channel by the content provider. In the
case of music videos, Mobi acts as a content provider itself by
acquiring and assembling individual music videos into themed channels
3
Mobi’s technology infrastructure is directed to transferring
large amounts of data quickly and fluidly over mobile phone networks.
Mobi provides this “back-end” infrastructure to a number of carriers
for whom it does not provide any content. In those cases, the
wireless carrier acquires content directly from the networks, record
labels, and other content providers and uses Mobi’s infrastructure to
the deliver that content.
4
Depending on the type of content it provides, a given channel may
be offered in a live, clip-linear, or video-on-demand (“VOD”) format.
Live content is streamed directly from the networks and is the most
popular and expensive content available from Mobi. Clip-linear
content delivers a repeating sequence, or “loop”, of programming set
by the content provider and refreshed periodically. VOD content
allows the customer to select a particular program or clip and watch
that piece of content immediately.
-6-
designed and marketed by Mobi.
Payments to Mobi from the wireless carriers. Television, radio,
and music video content may be packaged for consumption in one of two
ways. First, groups of channels may be packaged for “à la carte”
selection, for which wireless phone customers pay a monthly fee,
usually around $10. Second, content may be “bundled” with other types
of non-Mobi products and services and sold to the customer as part of
a larger offering. When Mobi’s products are sold as part of a bundle,
it receives a flat dollar figure per subscriber per month based on the
relative value of the Mobi service to the bundle. In the latter case,
Mobi does not know how much the carrier received for the sale. In
both types of packaging, payments are not affected by whether
subscribers actually use any of Mobi’s content.5
In addition to the revenue from carriers for packaged content,
Mobi also earns a small amount of income from advertising that it
inserts into its channels. This revenue may be retained solely by
Mobi or shared with the wireless carriers pursuant to license
agreements.
Payments from Mobi to content providers. For the right to
5
Mobi markets its services as a way to help drive demand for more
expensive data plans, which are lucrative to the carriers.
-7-
distribute content to the wireless carriers, Mobi generally pays the
networks and other content providers a per-subscriber fee. The size
of the fee, which Mobi negotiates with each content provider, depends
on the popularity of the channel. Although Mobi’s revenue-to-cost
ratio had been improving steadily in 2008, as of 2008 it had never
made a profit.
C. Procedural History
In November 2003, Mobi applied to ASCAP for a TTTA license for a
“service that allows mobile handset users to access television and
other content by aggregating television and other audio-visual content
for transmission over telecommunications networks.” Failing to reach
agreement over an appropriate rate, ASCAP applied to the District
Court in May 2008 for “a reasonable fee retroactive to the date of the
written request for a license.”
In the proceedings in the District Court, ASCAP contended that it
was entitled to over $41 million in fees for the period between 2003
and 2011.6 Mobi contended that it owed only $301,257.99 for the period
from November 2003 to July 2009.
When a party applies to the District Court to set a reasonable
6
In its appellate brief, ASCAP contends that the portion of this
fee attributable to the period from November 2003 to July 2009 was
approximately $15.8 million.
-8-
rate for an ASCAP license, the AFJ2 requires that court to first
assess the reasonableness of the fee quoted by ASCAP. AFJ2 § IX(B),
(D). During this phase of the proceedings, ASCAP bears the burden of
establishing the reasonableness of its proposed fee. Id. If ASCAP
fails to meet its burden, the District Court must “determine a
reasonable fee based upon all the evidence.” AFJ2 § IX(D).
The District Court’s rejection of ASCAP’s fee proposals.
Pursuant to the AFJ2, the District Court first considered, and
rejected, ASCAP’s fee proposals.7 ASCAP had proposed a fee formula
that used as a starting point the revenues wireless carriers received
from their customers. In a thorough review, Mobi, 712 F. Supp. 2d at
236-244, the District Court identified a number of errors and
deficiencies in that methodology. Among these were the unrealistic
size of ASCAP’s starting revenue base ($54 billion), id. at 239, the
inclusion in that figure of large sums of revenues unrelated to the
value of Mobi’s products, including the revenues earned by the
wireless carriers on their primary services of telephonic
7
ASCAP made two different fee proposals in the court below. The
same formula was employed in each proposal, the principal distinction
being whether the wireless carriers would share some of the burden of
paying for the resulting fee. See Mobi, 712 F. Supp. 2d at 243.
-9-
communications and Internet access, id. at 240-41, the use of faulty
calculations, id. at 240-41, the use of a high royalty rate (2.5
percent) based on an non-analogous benchmark, id. at 242, and the
large size of the resulting fee, id. Notably, the District Court
implicitly rejected the proposition that wireless carrier retail
revenues from their customers could be used as a base for a rate
calculation:
In sum, ASCAP has not carried its burden of showing that its
proposed fee for a TTTA license for Mobi is reasonable. It
has not shown that it located a revenue base with a
sufficient nexus to content “sourced” by Mobi within the
wireless carriers’ revenue base or that it is entitled to a
fee built upon any broader revenue base. Because ASCAP
chose a vastly inflated revenue base it faced the Herculean
task of contracting that base through a series of
calculations. Each of those layers of calculations was
laden with unsupported and faulty assumptions. The final
fee request was a demonstrably unreasonable number. . . .
And, of course, as the discussion of the complexity of the
[ASCAP] calculations illustrates, the adoption of this vast
revenue base, along with the layers of calculations required
to reduce it to a fee proposal, imposes enormous transaction
costs on the parties that are entirely out of line with the
commercial realities faced by both ASCAP and all but perhaps
the very largest communications companies in America.
Id. at 244.
The District Court’s fee formula. After rejecting ASCAP’s fee
proposals, the District Court proceeded, as provided in the consent
decree, to “determine a reasonable fee based upon all the evidence.”
AFJ2 § IX(D). In setting a reasonable rate, the District Court
-10-
largely credited Mobi’s fee expert and adopted Mobi’s proposed fee
structure. The District Court’s formula differs from ASCAP’s in
several important respects.
First, the District Court declined to use the wireless carriers’
retail revenue from their customers as the base for the royalty
calculations. Instead, for programming obtained from television
networks, it used Mobi’s costs, i.e., the amount it pays to content
providers for content, plus any revenue derived by Mobi from
advertising inserted into that content. Mobi, 712 F. Supp. 2d at 246-
47.8 For programming obtained from record labels (music videos), the
Court used Mobi’s revenues, i.e., the amount it receives from wireless
carriers for its services, again along with advertising income. See
id. at 247.
Second, the District Court used ASCAP’s suggested rate of 2.5
percent only for all-audio channels. See id. at 248. For audio-visual
content, it applied the rates used in benchmark agreements between
ASCAP and the cable television industry. See id. at 247-48. The
District Court followed these benchmarks in applying rates of 0.9
percent to music-intensive programming (e.g., music video channels),
8
One result of taking Mobi’s costs as the revenue base, as the
District Court recognized, was that ASCAP received no fee for some
programming that content providers offered to Mobi for free. Mobi,
712 F. Supp. 2d at 250-51.
-11-
0.375 percent to general entertainment content, and 0.1375 percent to
news and sports content. See id. at 255.
The result of these calculations was a judgment setting a fee of
$405,000 for the period from November 2003 through March 2010,
substantially less than ASCAP’s proposed fee of $15.8 million for a
somewhat shorter period.9
Discussion
A. Standard of Review
On an appeal from a rate determination, this Court reviews the
District Court’s factual findings for clear error and its conclusions
of law de novo. See United States v. ASCAP (Applications of
RealNetworks, Inc. and Yahoo! Inc.), 627 F.3d 64, 76 (2d Cir. 2010)
(“In order to find that the rate set by the District Court is
reasonable, we must find both that the rate is substantively
reasonable (that it is not based on any clearly erroneous findings of
fact) and that it is procedurally reasonable (that the setting of the
rate, including the choice and adjustment of a benchmark, is not based
on legal errors).”). We have likened this distinction to that between
the admissibility of evidence (a question of law) and an evaluation of
the persuasive force of that evidence (a question of fact). See ASCAP
9
The District Court’s fee structure was also intended to govern
the parties’ relationship through the end of the statutory contract
period, i.e., through 2011.
-12-
v. Showtime/The Movie Channel, Inc., 912 F.2d 563, 569 (2d Cir. 1990).
When setting an appropriate rate, the District Court must attempt
to approximate the “fair market value” of a license – what a license
applicant would pay in an arm’s length transaction. See United States
v. BMI (Application of Music Choice), 316 F.3d 189, 194 (2d Cir. 2003)
(“Music Choice II”). In many cases, “the appropriate royalty rate” –
i.e., the fair market value of the license – “is determined by
applying the appropriate percentage rate to the fair market value of
the music.” Id. at 195 (emphasis supplied). In so doing, the rate-
setting court must take into account the fact that ASCAP, as a
monopolist, exercises market-distorting power in negotiations for the
use of its music. See RealNetworks, 627 F.3d at 76.
B. Rejection of ASCAP’s proposal
ASCAP does not contend on appeal that the District Court erred in
rejecting its royalty proposal.10 Instead it devotes its entire
argument to claimed deficiencies in the District Court’s own
determination, pursuant to the AFJ2, of a reasonable royalty. We
therefore limit our discussion to those alleged deficiencies.
10
Toward the end of its brief ASCAP asserts that the District
Court “erred in rejecting ASCAP’s proposed methodology outright as
unreasonable,” Brief for Appellant at 44, but this statement simply
continues the argument that the District Court should not have based
a royalty rate on wholesale revenues; it is not a claim that ASCAP’s
proposal should have been adopted.
-13-
C. Alleged Deficiencies in the District Court’s Royalty Determination
The District Court’s royalty determination began with selection
of a revenue base to which the Court applied different percentage
rates depending on the category of programming. ASCAP’s primary
contention on appeal is that the Court selected an incorrect revenue
base.
1. The appropriate revenue base
The District Court used as a revenue base “the wholesale price
for the musical content,” MobiTV, 712 F. Supp. 2d at 247. At first
glance, this phrase might seem to involve circular reasoning: the
revenue base is being selected to determine what Mobi must pay ASCAP
for the right to perform ASCAP music, but what Mobi must pay ASCAP
might also be called “the wholesale price for the musical content.”
But, as used by the District Court, that is not what the phrase means.
In fact, the phrase has two other meanings depending on whether Mobi
is licensing content from content providers (typically television
networks) or obtaining music videos from record labels. The Court
explained its revenue base in these words:
For the programming that Mobi licenses from content
providers, aggregates, and conveys to wireless carriers, the
revenue base shall be the amounts that Mobi pays to the
cable television networks or other providers to license the
content, plus any revenue from advertising Mobi inserts into
that programming, including revenue that is shared with
wireless carriers or potentially content suppliers. For the
-14-
music videos that Mobi obtains from record labels, programs
into music video channels, and then provides to the
carriers, the revenue base will be the revenue that Mobi
receives from the wireless carriers for this programming,
plus any revenue from advertising Mobi inserts into that
programming, including revenue that is shared with wireless
carriers or potentially content providers.
Id. (emphases added).
As can readily be seen, both revenue bases use wholesale revenue,
in one case the wholesale revenue that the cable television networks
receive from Mobi and in the other case the wholesale revenue that
Mobi receives from the wireless carriers. In neither case is retail
revenue used, i.e., the revenue the wireless carriers receive from the
handset customers.
At the outset, we can put aside one aspect of ASCAP’s challenge,
which is merely a semantic quibble. ASCAP repeatedly faults the
District Court for using Mobi’s “cost” or “costs” to obtain rights,
see Brief for Appellants at 30, 33. The District Court focused on
revenue, either the content providers’ revenue from Mobi or Mobi’s own
revenue from record labels. Obviously, with respect to programming
from content providers, the providers’ revenue from Mobi is the same
as Mobi’s payment of costs to those providers. The labeling is a
matter of perspective, not substance.
ASCAP’s fundamental objection is that the revenue base should
have been retail revenue received downstream in the distribution chain
-15-
by the wireless carriers from their customers, rather than the
wholesale revenue received upstream by the content providers from
Mobi. We consider first the adequacy of the District Court’s reasons
for using the content providers’ revenue and then ASCAP’s complaint,
which is based primarily on this Court’s decision in Music Choice II.
The District Court’s reasons for using wholesale revenues. The
District Court expressed several reasons for using wholesale revenues
as “the appropriate revenue base from which to measure the value of
the public performance of the music at issue here.” MobiTV, 712 F.
Supp. 2d at 246. First, the Court explained that “[p]ricing the
public performance right at the time the content is first sold gives
direct and immediate feedback to content producers about the value of
a component of their product.” Id. Second, the Court accepted the
concept of what Mobi’s expert, Professor Roger G. Noll, called
“derived demand”:11
Mobi has shown that the value of the public performance
of the music at the retail level is indeed captured at the
wholesale level, not just theoretically by the concept of
derived demand, but also functionally from the fact that the
cable television networks principally generate their
revenues by measuring the number of subscribers for their
programming. To the extent that a channel’s content becomes
11
Noll explained in his 83 page declaration that “[t]he
relationship between final product markets and the demand for inputs
is called the theory of derived demand, and for the case of variable
factor proportions was first developed in John R. Hicks, The Theory of
Wages, MacMillan (1932).” Noll Declaration 47 n.40.
-16-
popular among consumers, the seller of content demands a
higher rate of compensation from advertisers and from
purchasers of the content. And, Mobi’s payments to the
cable television networks for the programming it distributes
are driven by the subscriber data that Mobi tracks and
conveys to the networks.
Id.
Third, the District Court pointed out the administrative
advantages of using wholesale revenue:
[T]he administrative advantages of basing a rate on
wholesale revenue are amply illustrated in this case by the
challenges that ASCAP’s expert sought to surmount as she
endeavored to construct calculations that might result in a
reasonable fee and to justify those calculations. Fully
appreciating that the retail revenue base vastly overstates
the value of the public performance of the musical
composition, since it reflects so many inputs that bear
little or no relation to that content, she designed layers
of formulae to reduce the retail revenue base. At each step
of the process, those formulae raised a multitude of
questions about their intellectual rigor, fairness, and the
cost and burden associated with their implementation.
Id.
Fourth, the District Court relied on two factors that our Court
in Music Choice II had pointed out counsel against using retail
revenues as a revenue base:
This is a case in which many of the retail customers pay a
single fee for a bundle of programming, making it difficult
to determine what part of the fees is paid for music. Music
Choice II, 326 F.3d at 195 n.2. And the digital revolution,
which has turned handsets into computers and permitted
television programming to be included among the many
innovative products to which a consumer has immediate and
constant access, makes it an extremely complex task to tease
-17-
out one component of the retail price and identify the
extent to which retail price is driven by the musical
content of the television programming. Id. at 196 n.3.
MobiTV, 712 F. Supp. 2d at 246-47.
ASCAP challenges the District Court’s reasons for using wholesale
revenues as the royalty base by disputing the validity of Prof. Noll’s
use of the principle of derived demand. See Brief for Appellant at 33-
36. Prof. Noll justified his use of that principle, which the
District Court accepted, in these words:
If consumers value musical performances more highly, they
will increase their purchases of musical performances, which
in turn will cause the derived demand for content that
contains music to increase. The resulting increase in sales
of content that contains music will lead to higher payments
for rights holders even if the royalty rate is unchanged.
Noll Declaration 45. He gave three reasons for using wholesale
revenue as the appropriate base:
First, using the revenue of the channel supplier leads to
royalties that are most closely connected to the intensity
of music use. Second, basing royalties on the revenue of
the channel supplier also avoids unreliable and expensive
methods for allocating revenue among bundled products and
services and to other inputs of retailers (here, the
wireless carriers). Third, the revenue of channel suppliers
includes sources of revenue that accrue to the channel but
not to the retailer, such as advertising that is inserted by
the channel supplier.
Id. at 48.
Despite cross-examining Prof. Noll in 120 pages of trial
transcript, ASCAP failed to provide the District Court with any basis
-18-
for discounting, much less rejecting, his analysis.
ASCAP’s challenge to wholesale revenues based on Music Choice II
and IV. The Music Choice litigation, see Music Choice II, 316 F.3d
189, and United States v. Broadcast Music, Inc. (Application of Music
Choice), 426 F.3d 91 (2d Cir. 2005) (“Music Choice IV”), concerned the
appropriate royalty rate to be paid by Music Choice to Broadcast
Music, Inc. (“BMI”), for a TTTA license for the performance rights to
music in BMI’s repertory. Music Choice is a partnership that
transmits numerous music channels to listeners’ television sets via
cable and satellite and to their computers via the Internet. Like
ASCAP, BMI is subject to a consent decree that designates the Southern
District of New York as the rate court in the event of a royalty fee
dispute. Music Choice II, 316 F.3d at 190. BMI urged the Court to
follow an agreement between BMI and DMX, a competitor of Music Choice.
Under that agreement, DMX paid BMI 3.75 percent (later 4 percent) of
DMX’s wholesale revenue, which in this context meant the money paid by
the cable or satellite operators to DMX for music programming. See id.
at 192. That rate was designed to be approximately double the rate
previously applied to the retail revenues of the cable or satellite
operators on the theory that these operators charged their retail
customers approximately double what they were paying to the providers
of the music programming. See id.
-19-
The District Court in the Music Choice litigation ruled that a
3.75 percent rate based on the wholesale revenues of Music Choice was
not appropriate. See id. at 193. The District Court explained that
this rate had been used in the DMX contracts to approximate the use in
previous contracts of a 2 percent rate of DMX’s wholesale revenues
plus 2 percent of the cable or satellite operators’ retail revenues.
Then the District Court reasoned that retail revenues did not reflect
the fair market value of music because the subscriber paying the
retail price was paying for materials and services not provided by the
author of the music. See id. at 194. The Court therefore deducted 2
percentage points (the retail rate) from the 3.75 percent that had
been applied to wholesale revenues and set 1.75 percent of wholesale
revenues as the appropriate rate. See id.
This Court reversed. We faulted the District Court for rejecting
retail revenues in determining an appropriate rate. See id. at 195.
In language embraced by ASCAP in the pending case, we said:
As to the court’s rejection of retail revenues, absent some
valid reason for using a different measure, what retail
customers pay to receive the product or service in question
(in this case, the recorded music) seems to us to be an
excellent indicator of its fair market value. While in some
instances there may be reason to approximate fair market
value on the basis of something other than the prices paid
by consumers, in the absence of factors suggesting a
different measure the price willing buyers and sellers agree
upon in arm’s length transactions appears to be the best
measure.
-20-
It is true without doubt that to make the music
available to its customers, the retail seller must incur
expenses for various processes and services not provided by
the owner of the music, such as the laying of cable, the
establishment of satellite systems, etc. However, this is
in no way incompatible with the proposition that retail
revenues derived from the sale of music fairly measure the
value of the music. The customer pays the retail price
because the customer wants the music, not because the
customer wants to finance the laying of cable or the
launching of satellites.
Id. (citation and footnote omitted).
In the pending case, we are of course obliged to follow the
holding of Music Choice II, which was that the District Court had
erred by reducing a percentage rate that had been applied to wholesale
revenues by the rate previously applied to retail revenues. Nothing
of that sort occurred in our case. Of course, ASCAP urges us to heed
not merely the holding of Music Choice II but its language,
particularly the observation that “what retail customers pay to
receive the product of service in question (in this case, the recorded
music) seems to us to be an excellent indicator of its fair market
value.” For several reasons we conclude that the quoted words do not
compel a reversal of the District Court’s decision in this case.
First, the quoted words were preceded by the important qualifying
phrase “absent some valid reason for using a different measure.” In
the pending case, the District Court had a very valid reason for using
-21-
a different measure: the unimpeached testimony of Prof. Noll
explaining several reasons why wholesale revenue was far superior to
retail revenue as a basis for a royalty rate in this case.
Second, in Music Choice II our Court added a significant
footnote, observing that “where the customers pay a single fee for a
package of audio and visual programming, which includes the music, it
will be difficult to determine what part of the fees paid was for the
music, as opposed to other programming.” Id. at 195 n.2. That is
precisely the sort of “bundling” that occurs with Mobi’s transmission
of programming to wireless carriers. The wireless carriers typically
offer Mobi’s television products as part of a bundle of services that
also includes Internet access and text messaging, and then charge a
single data plan fee for the whole bundle. As ASCAP’s fee proposal to
the District Court illustrated, separating out the relative value of
each individual product is fraught with methodological difficulty.
ASCAP’s proposal was premised on the notion that the value of
different products in the bundle could be determined based upon how
much data each product used. As the District Court noted, this
proposal made the essentially arbitrary assumption “that a consumer
would pay the same amount of money to receive a kilobyte of text
messaging as a kilobyte of television programming, even though a
kilobyte might give a consumer several back-and-forth exchanges of
-22-
text messages but only the briefest glimpse of an image from a
television program.” MobiTV, 712 F. Supp. 2d at 241. ASCAP’s failure
to develop a rational formula for valuing the component parts in the
bundle of products sold by the wireless carriers confirms the wisdom
of the District Court’s decision to reject the use of a retail base in
this case. The products bundled by Mobi differed considerably from
the programming channels in Music Choice II, which were essentially
audio channels devoted exclusively to music.
Third, although not disagreeing with the holding of Music Choice
II, we are not persuaded that its contention that “retail revenues
derived from the sale of the music fairly measure the value of the
music,” id. at 195, is universally true. Indeed, an example offered
in that opinion seems to undermine that assertion. The example
concerned purchasers of music on a compact disc sold for $12. Music
Choice II noted that the purchasers
were not motivated to spend their money to pay the salaries
of truck drivers, warehousemen, bookkeepers, office
administrators, salespersons and executives, all of whom
played necessary roles in bringing the record to market.
What the customers wanted was a record of certain music, and
they were willing to pay $12 to get it.
Id. (emphasis added).
At an earlier time, the customer who wanted to hear the music in
that example had a choice between a then-novel compact disc and an
-23-
old-fashioned vinyl plastic record, which (unless it had value as a
rarity) would have sold for considerably less than the $12 for the CD.
True, the purchaser was not motivated to pay the salaries of all the
personnel whose efforts made possible the production and delivery of
the CD (or the vinyl record), but preference for a CD would have
resulted in payment of a higher price than for a record, even though
both contained the same music. The retail price of the CD was
reflecting not just the value the purchaser assigned to the music but
also the value assigned to the mode of delivery of that music. In
another significant footnote, Music Choice II acknowledged this very
fact:
If it were demonstrated that retail purchasers were
motivated to pay more because of advantages that resulted
from a particular mode of delivery, such as better quality,
better accessability or whatever, this might justify a
conclusion that retail price of the service purchased by the
customer exceeded the fair market value of the music.
Id. at 196 n.3. Whether or not in some contexts the retail price of
a product containing music is a good measure of the fair market value
of the music, the District Court in the pending case, on the record
before it, did not err in concluding that the retail price paid by
customers for a service that delivers video and audio channels
containing music to their handsets is not a good measure of the value
-24-
of the music itself.12
ASCAP’s challenge to wholesale revenues based on uncompensated
rights. ASCAP also faults the District Court’s use of wholesale
revenues because such use fails to provide any compensation to ASCAP
in the few instances where Mobi acquired programming without paying
anything to content providers. Prof. Noll recognized that this would
occur in some instances because a new channel trying to get
established sometimes cannot command any price, and providers of such
content would rather offer it for free in order to have it included in
a package of bundled content. He explained, however, that such a
channel would either disappear for lack of an audience or achieve an
audience, in which event the popularity of its programming would
subsequently be reflected in the later revenues that content providers
could demand, thereby increasing ASCAP’s royalty for the benefit of
the music composers. See Trial Tr. 985-88. Either way, the temporary
use of free content would not undermine the overall reasonableness of
the District Court’s royalty determination. As the District Court
12
Although our Court’s decision in Music Choice IV noted that the
District Court in that litigation “should not have rejected the retail
price of music as an indication of its fair market value,” 426 F.3d at
95, it also acknowledged that “in spite of our endorsement of retail
price as generally a good marker for fair market value, we did not
require it to be used in all circumstances, but only absent some valid
reason for using a different measure,” id. at 97 (internal quotation
marks omitted).
-25-
explained, “The market for television content has spoken, and this
content would receive no airing at all through a wireless distribution
platform unless the content were provided for free and given the
opportunity to build a base.” 712 F. Supp. 2d at 251.
2. ASCAP’s Remaining Objections
ASCAP’s remaining objections were properly rejected by the
District Court. For clarification, we discuss briefly two such
matters.
ASCAP contends that the District Court erred in failing to “test”
the resulting fee for reasonableness. Although the size of the fee is
clearly relevant to its reasonableness, there is no requirement that
the District Court explicitly engage in a testing of the fee resulting
from its formula. On the contrary, the AFJ2 requires only that the
District Court “determine a reasonable fee.” AFJ2 § IX(D).
ASCAP also contends that the District Court erred by failing to
include the value of licenses for content acquired by others but
streamed to customers using Mobi’s back-end technology infrastructure.
Such content would include, for example, television programming
acquired by Sprint directly from the networks, and then provided to
its customers using Mobi’s servers and patented technology. ASCAP
argues that Mobi is required to obtain a performance license for all
unlicensed content that it streams, regardless of whether it has been
-26-
assured by its upstream partner that such a license has already been
procured. This objection also lacks merit. If an upstream content
provider has already acquired a TTTA license from ASCAP, it would be
unfair to require Mobi to make a second payment for the same content.
See United States v. ASCAP (In re Application of AT&T Wireless), 607
F. Supp. 2d 562, 570-71 (S.D.N.Y. 2009). Furthermore, Mobi is
entitled to rely on its upstream partner’s assurances that it is
protected – and to manage the accompanying risk that the partner has
not obtained the promised right.13 ASCAP, for its part, retains the
power to protect its rights by bringing an infringement action against
Mobi or any other party. As a result, the District Court did not err
by construing the license to exclude such content.
Conclusion
For the foregoing reasons, the judgment of the District Court is
affirmed.
13
Mobi would, presumably, manage this risk through an
indemnification agreement or similar arrangement with the upstream
provider.
-27-
| {
"pile_set_name": "FreeLaw"
} |
988 So.2d 1050 (2008)
K.R.
v.
D.H.
2061119.
Court of Civil Appeals of Alabama.
January 25, 2008.
*1051 Gary A. Hudgins, Dothan, for appellant.
John C. White of Cobb, Derrick, Boyd & White, Dothan, for appellee.
THOMAS, Judge.
K.R. ("the mother") appeals from the juvenile court's judgment awarding custody of her son, J.T.H. ("the child"), to D.H., the child's paternal grandmother ("the paternal grandmother"). We dismiss the appeal.
The mother and B.R.H. ("the father") had a nine-month relationship that resulted in the birth of the child. The father is deceased. According to her testimony, the mother permitted the paternal grandmother visitation with the child on Tuesday and Thursday evenings and every other weekend. In the summer of 2006, the paternal grandmother and the mother discussed the child's academic progress. The mother characterized the child as a "B-C" student, noting that he was more of an athletically inclined child than an academically inclined one. However, the paternal grandmother suggested that the child might benefit from attending a private religious-based school located close to the paternal grandmother's home because the smaller class sizes at that school might permit the teacher to give him more one-on-one attention. The mother was unable to pay for the private school, so the paternal grandmother offered to assume that expense. The mother agreed to allow the child to attend the private school and to live with the paternal grandmother during the school week so that he would not have a 40-minute commute to and from school each weekday.
After the 2006-2007 school year, however, the mother decided that the arrangement no longer suited her. She desired that the child return to live with her full-time. As the mother explained at trial, the child's academic record had improved only slightly at the private school, and she had some concerns over the impact his living apart from her was having on their relationship. The paternal grandmother disagreed with the mother's decision and filed a petition for custody of the child in the juvenile court, alleging that the mother was unemployed and owned no vehicle, that the residents of the mother's home smoked "incessantly" to the point of necessitating medical treatment for the child, that the mother had agreed to allow the child to attend the private school and live with the paternal grandmother, that the child had "performed very well" at the private school, and that the mother "for no stated reason ... has determined that the child will no longer live with [the paternal grandmother] ... and [will] return to her residence and attend [public school.]"
The juvenile court entered an ex parte order awarding the paternal grandmother temporary custody of the child on June 5, 2007, and it set the case for a 72-hour hearing on June 7, 2007. The mother appeared at that hearing, but she was not represented by counsel. At the close of that hearing, the juvenile court continued temporary custody in the paternal grandmother, ordered the Department of Human Resources ("DHR") to conduct a home study of the mother's home, and ordered that the mother take a drug test. The mother's drug test was positive for amphetamine; however, the mother takes the prescription medication Adderall, which is amphetamine-based. The mother denied taking any illegal drugs, and the paternal grandmother made no allegations that the mother had ever done so. The home study conducted by DHR on the mother's home was favorable.
After securing representation, the mother filed a motion challenging the juvenile *1052 court's subject-matter jurisdiction because, she asserted, the allegations in the paternal grandmother's petition did not rise to dependency allegations and because the child was not otherwise before the court. See Ala.Code 1975, § 12-15-30. At the hearing on the custody petition, the juvenile court addressed the mother's motion by asking the paternal grandmother's attorney whether the paternal grandmother had alleged that the child was dependent, to which the attorney responded "yes." After the trial, at which the evidence demonstrated only that the paternal grandmother desired that the child continue to live with her so he could have access to what she considered to be a better education, the juvenile court found the child dependent, awarded the mother and the paternal grandmother joint legal custody of the child, and awarded the paternal grandmother physical custody of the child.
The mother appeals that judgment, arguing again on appeal that the juvenile court lacked subject-matter jurisdiction because the allegations made by the paternal grandmother did not rise to the level of allegations of dependency. The mother further argues that the evidence at trial did not establish dependency by clear and convincing evidence. After a consideration of the law governing the jurisdiction of the juvenile court, we agree with the mother that the juvenile court lacked subject-matter jurisdiction over this case, and, because a judgment entered without subject-matter jurisdiction is void, Ex parte Punturo, 928 So.2d 1030, 1034 (Ala.2002); G.W. v. Dale County Dep't of Human Res., 939 So.2d 931, 934 (Ala.Civ.App.2006), and because a void judgment will not support an appeal, S.B.U. v. D.G.B., 913 So.2d 452, 456 (Ala. Civ.App.2005), we dismiss the appeal.
We note that an Alabama Unified Judicial System form provided by the juvenile court filed with the paternal grandmother's petition for custody indicates that the child is alleged to be dependent by the marking of a box on the form. We note that the only options on the form to describe the content of the petition are that the child is delinquent, that the child is dependent, or that the child is in need of supervision. This is hardly surprising because the juvenile court is a court of limited jurisdiction, having "exclusive original jurisdiction of proceedings in which a child is alleged to be delinquent, dependent or in need of supervision." § 12-15-30(a). After the section containing the boxes indicating that the child is either delinquent, dependent, or in need of supervision, the form contains the words "in that" and a large blank area for a description of the allegations concerning the child. In that section on the form contained in the record, the words "Please see attached Petition for Custody" appear. Thus, we are not convinced that a check mark on a form provided by the juvenile court is sufficient to rise to the level of an allegation of dependency when the attached petition does not contain allegations that rise to that level.
A juvenile court also has jurisdiction over custody proceedings[1] when the subject child is "otherwise before the court." § 12-15-30(b)(1). Although this case carries an ".01" suffix, the paternal grandmother's petition does not seek a modification of an existing custody judgment rendered by the juvenile court. Thus, the child in the present case was not otherwise before the juvenile court.
Because at its heart the paternal grandmother's petition for custody is based on a *1053 dispute between the mother and the paternal grandmother over which would be the better custodian and which would provide a better education, the juvenile court was wrong to treat the case as a dependency case. The child in the present case was not otherwise before the court, so the juvenile court could not have exercised jurisdiction over the paternal grandmother's petition pursuant to § 12-15-30(b)(1). Thus, the juvenile court lacked subject-matter jurisdiction over the paternal grandmother's petition, and its judgment on that petition is void. See Ex parte Punturo, 928 So.2d at 1034. The mother's appeal is, accordingly, dismissed. See S.B.U. v. D.G.B., 913 So.2d at 456.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] We note that if a juvenile court were to properly exercise jurisdiction pursuant to § 12-15-30(b)(1) in a proceeding such as this one involving a custody dispute between a parent and a nonparent, the correct standard is that set out in Ex parte Terry, 494 So.2d 628 (Ala. 1986), which requires that the nonparent seeking custody prove that the parent is unfit.
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Case: 16-20526 Document: 00514053836 Page: 1 Date Filed: 06/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20526 FILED
June 29, 2017
Lyle W. Cayce
DANIELLE KEITH BURKS, Clerk
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-1861
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Danielle Keith Burks, Texas prisoner # 1779069, moves for a certificate
of appealability (COA) to appeal the dismissal without prejudice of his
28 U.S.C. § 2254 application for failure to exhaust state court remedies. He
also moves for appointment of counsel. Burks challenges his state conviction
for tampering with evidence, for which he was sentenced to 30 years of
imprisonment.
* 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.
Case: 16-20526 Document: 00514053836 Page: 2 Date Filed: 06/29/2017
No. 16-20526
A COA may issue only if the applicant makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court’s denial of federal habeas relief is based on procedural grounds, “a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
Given the lack of evidence in the record as to the current state of Burks’s
state habeas proceedings and the district court’s lack of findings as to whether
the reason for a nearly three-year delay was justifiable, jurists of reason could
question the district court’s procedural ruling dismissing the federal petition
for nonexhaustion. See id. In Burks’s § 2254 petition, he has asserted several
claims, at least some of which appear to facially assert a valid claim of the
denial of a constitutional right. See Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). We express no view
at this time on the proper resolution of Burks’s claims and observe only that
he has made a showing sufficient to warrant a COA. See id.
Accordingly, Burks’s motion for a COA is GRANTED, the district court’s
judgment dismissing the motion for failure to exhaust state court remedies is
VACATED, and the matter is REMANDED for further factual development
regarding whether the delay in considering Burks’s state habeas application is
justifiable and whether the state proceedings are progressing. See id.;
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). If the delay is not
justifiable and the matter has not progressed in the state courts, the district
court shall proceed to consider the merits of the federal habeas petition.
Burks’s motion for appointment of counsel is DENIED.
2
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558 P.2d 487 (1976)
George S. HASKINS and Donald Hancock, Individually and d/b/a North Star Equipment Rentals, Appellants,
v.
Carrie A. SHELDEN and Fred Wackwitz, Appellees.
Carrie A. SHELDEN and Fred Wackwitz, Cross-Appellants,
v.
George S. HASKINS and Donald Hancock, Individually and d/b/a North Star Equipment Rentals, Cross-Appellees.
Nos. 2585, 2596.
Supreme Court of Alaska.
December 29, 1976.
*488 C.R. Kennelly and George W. Edwards, Anchorage for appellants/cross-appellees.
Richard D. Savell, Fairbanks, for appellees/cross-appellants.
Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
OPINION
ERWIN, Justice.
This civil appeal arises out of a judgment of the Superior Court in a trespass and replevin action. Appeal is taken from the judgment awarding Carrie A. Shelden recovery of an Allis Chalmers tractor and $25,000 in punitive damages to be recovered from appellant George Haskins for his conversion and/or wrongful replevin of the tractor. Plaintiff Shelden has filed a cross appeal challenging the trial court's rulings denying her prejudgment interest on the judgment against Haskins, and refusing to award her attorney's fees according to the schedule in Civil Rule *489 82(a). We affirm the decision of the trial court as to all matters raised except the award of attorney's fees. On that issue, we remand to the trial court for further proceedings.
In 1964, appellant George Scott Haskins contacted appellee Carrie A. Shelden about possible acquisition of her interest in a group on lode mining claims located off the Steese Highway near Fairbanks. The claims were held jointly by Shelden and Roudolph and Adolph Better. Shelden agreed to sell her interest in the mining claims for $35,000, taking an Allis Chalmers tractor as part payment of the purchase price. A value of $15,000 was placed on the tractor.
The Purchase and Sale Agreement for the mining claims provided that George Haskins was to pay to Carrie Shelden the agreed purchase price of $35,000, of which between $1,500 and $2,500 was to be paid on or before December 15, 1964. Haskins was also to deliver to Shelden a Bill of Sale for the HD-20 Allis Chalmers tractor. The balance of the purchase price was to be paid in three equal installments payable on October 1 of 1965, 1966 and 1967. While the payments were being made, Haskins was to have possession of the mining claims. Upon completion of the payments, Carrie Shelden was to deliver to Haskins a quitclaim deed transferring to him all of her interest in the claims. At the heart of this dispute is the extent of the interest that the parties intended to be transferred.
The Agreement which was introduced into evidence at trial originally had provided that Shelden was to deliver a quitclaim deed for a one-half undivided interest in the claims. The words "a one half undivided" were lined out and the word "her" inserted above the line. The interlineation is followed by the initials "CS." Whether the interlineation was performed at the signing of the Agreement or subsequently when Carrie Shelden discovered that she did not have a one-half undivided interest was in dispute at trial.
Following the signing of the Purchase and Sale Agreement, George Haskins executed a Bill of Sale to Carrie Shelden for the HD-20 Allis Chalmers tractor. The Bill of Sale set forth guarantees by Haskins that he was the owner of the tractor, that it was free from encumbrances, that he had a right to sell it, and that he would defend its sale against all claims and demands. Haskins also gave the Sheldens an itemization of the tractor overhaul work he was to perform as part of the Agreement. At the bottom of the itemization Haskins included a second guarantee that there would be no liens or encumbrances against the tractor or its parts on the date set for its delivery, May 1, 1965.
After execution of the agreement Haskins took possession of the mining claims. He began working the claims and successfully extracted some gold from the claims before abandoning them. Unfortunately for Carrie Shelden, Haskins was not as diligent in making his payments on the Agreement as he was in mining the claim. The December 15, 1964, payment, which was to have been $1,500 to $2,500, was only $1,200. Haskins also failed to meet the three annual October payments. Despite the nonpayment, the Sheldens did not request Haskins to leave the claims. Nor at any time between November 4, 1964, and June, 1968, did the Sheldens hear anything from Haskins indicating dissatisfaction with the mining claims or with the transfer of the tractor.
On September 15, 1965, Haskins entered into a mining lease with Adolph and Roudolph Vetter, co-owners of the mining claims. The lease provided that the Vetters would "lease [to Haskins] their undivided 2/3 interest" in the mining property. The royalty that Haskins was to pay to the Vetters for his use of the property was based on 2/3 ownership of the property by the Vetters. Thus by the time the first annual installment was due in October, 1965, it had become apparent to Haskins that either the Vetters had overestimated their property ownership or Carrie Shelden *490 had. It was at this point that Haskins ceased making payments to Carrie Shelden.
On June 25, 1968, Haskins wrote to appellee's husband, John Shelden, informing him that there was a $2,500 lien on the tractor. Haskins announced that if the Sheldens were unwilling to satisfy the lien, Haskins would have to take back the tractor in order to sell it to pay off the lien. John Shelden was also informed that Northern Commercial Company, the lienholder, had the registered Bill of Sale on the tractor. Regarding the mining claims, Haskins wrote:
I have vacated the mine property, it is still yours, you have passed no leanage [sic] to me. I am sorry things did not work out as we each hoped.
Prior to receipt of this letter, neither Carrie nor John Shelden had any notice of the Northern Commercial lien, even though Haskins admits that he knew of the lien when he guaranteed the tractor title against encumbrances.
In June, 1969, Northern Commercial obtained a judgment against Haskins for default on the tractor sales contract. The judgment was satisfied by execution on a debt owed to Haskins and his partner, appellant Donald Hancock. Since this execution on property jointly owned left Haskins in debt to Hancock, Haskins suggested that Northern Commercial issue the Bill of Sale for the tractor in Hancock's name.
The tractor was being stored on an unpatented claim occupied by appellee Fred Wackwitz and located along the side of the access road from Fairbanks Creek to the Steese Highway. The tractor had been left there by the Sheldens since 1966. The Sheldens had also left Wackwitz with their Bill of Sale from Haskins in case a discrepancy arose as to ownership of the tractor.
Shortly after receipt of the Bill of Sale from Northern Commercial, Haskins and Hancock flew out to where they thought the tractor was stored, but were unable to locate it. On a second trip Haskins spoke with appellee Wackwitz at his house about where the tractor was located. Wackwitz told Haskins that the only way Haskins could remove the tractor from Wackwitz's property was to return "with the law."
Haskins then approached Hancock and, claiming that he needed the tractor, offered to buy the tractor from Hancock if Hancock would retrieve it. After Hancock located the tractor, he presented his Bill of Sale to the State Troopers' office in Fairbanks, telling them to go get his tractor. No court or administrative proceedings were held at this point, nor did a court order accompany Hancock's request to the troopers.
On August 1, 1972, Wackwitz heard a car drive onto his property. He opened his door and observed a man, Donald Hancock, standing on top of the tractor. As Wackwitz approached the tractor, a police officer stopped him and showed him a Bill of Sale for the tractor.
Despite Mr. Wackwitz's protests, Hancock started the tractor. Mr. Wackwitz did not interfere because Hancock had "authority" with him. Hancock drove the tractor away. In doing so, Hancock knocked a coal bin cover weighing about a quarter of a ton from the adjoining property onto Wackwitz's road, blocking access to Wackwitz's house. Hancock also took a short cut which caused the collapse of a run-off ditch needed to maintain the access road to Wackwitz's home. Wackwitz's repair work on the ditch took several hours.
After Hancock recovered the tractor, he traded it to Haskins for a 1967 truck. No Bill of Sale evidenced the transaction.
On October 17, 1972, Carrie Shelden and Fred Wackwitz filed a complaint against George Haskins and Donald Hancock. Their complaint alleged (1) that the defendants breached the agreements made pursuant to and including the Purchase and Sale Agreement; (2) that the defendants willfully represented to the State Troopers that plaintiff-appellees were wrongfully in possession of the tractor; (3) that defendants unlawfully entered onto plaintiff's land to remove the tractor; (4) that defendants converted the tractor to their own use; and (5) that in the process *491 of removing the tractor from plaintiff Wackwitz's property, defendants acted "wilfully, wantonly, and maliciously, in utter disregard for the rights of either plaintiff, and damaged the buildings and structures" on Wackwitz's property. Plaintiffs sought compensatory damages and punitive damages. They also sought return of the tractor.
Defendants' answers disputed the plaintiffs' right to possession of the tractor because of plaintiff Shelden's inability to perform her duties under the Purchase and Sale Agreement. This claim turned on defendant Haskins' allegation that the Agreement contemplated delivery by Shelden of a 1/2 undivided interest in the mining claims. Defendants also filed a counterclaim against plaintiffs, but it was dismissed upon motion by plaintiffs.
A jury trial was had in April, 1975. Before the case went to the jury, the court declared that a valid contract existed between Shelden and Haskins but left it for the jury to determine if the contract was voidable by appellant Haskins. A verdict was returned in favor of plaintiffs Carrie A. Shelden and Fred Wackwitz. The trial court entered judgment according to the verdict, ordering that Carrie Shelden recover from George Haskins the Allis Chalmers tractor and $25,000 in punitive damages, plus attorney's fees of $1,000, costs and postjudgment interest and that Fred Wackwitz recover from Donald Hancock $500 in nominal damages, plus interest thereon.
From this judgment defendants George Haskins and Donald Hancock appeal. However, defendant Hancock did not properly perfect his appeal, so we do not reach any claims of error raised by him. Carrie Shelden cross appeals for recomputation of the award.
While appellant Haskins has raised 13 specifications of error, we deem only three of sufficient merit to require discussion herein.[1]
I. Did the trial court err in instructing the jury that there was a binding contract between George Haskins and Carrie Shelden?
A review of the record regarding the trial court's proposed instructions reveals that appellant made no objections to the instruction which informed the jury that there was a binding contract between the parties.[2] Nor did appellant propose any instruction which would have called this issue to the attention of the trial court.
*492 Civil Rule 51(a)[3] requires a party who wishes to assign error to a jury instruction to make an objection to the instruction at trial. A party who fails to so object is not entitled to review of an instruction unless it appears that giving the challenged instruction was plain error such that a miscarriage of justice would occur if the instruction was not reviewed.[4] A reading of the instruction given by the trial court herein does not suggest that a miscarriage of justice might have occurred.[5] In fact, a reading of the entire instruction reveals that the trial court adopted almost fully the position which appellant argues should have been taken.
In his brief appellant summarizes his objection to Jury Instruction 14 as follows:
If the jury had not been instructed incorrectly that there existed a contract as a matter of law, it could have considered the testimony of Mr. Vetter regarding plaintiff Carrie Sheldon's [sic] prior knowledge of her one-third interest, determined that the contract was altered after signing, and found fraudulent conduct on the part of Carrie Sheldon [sic] in executing the contract, thereby voiding it entirely.[6]
Jury Instruction 14[7] did leave it to the jury to decide whether the Shelden interlineation appeared on the Purchase and Sale Agreement at the time appellant Haskins signed the Agreement. In addition, it provided that if the jury determined that the interlineation was not present when Haskins signed the Agreement, the jury would have to determine whether Carrie Shelden was able to transfer a one-half interest in the mining claims. This is exactly the position which appellant advanced in his brief.
II. Did the trial court err in allowing punitive damages where actual damages were not awarded to appellee?
Appellants contend that punitive damages cannot be awarded unless an award of actual damages is first made. This being so, they argue that appellee Sheldon cannot be allowed to recover punitive damages because she did not recover any actual compensatory damages. In response appellees argue that the judgment entitling appellee Shelden to recovery of the tractor is equivalent to the award of actual damages that is normally required.
On the subject of compensatory damages as a prerequisite to the award of punitive damages, McCormick notes that:
it seems to be agreed without dissent that the allowance of exemplary damages does not widen the range of actionable wrongs. In other words, no state of facts exists upon which a claim for exemplary damages could be based, which would not be actionable if the claim for exemplary damages were omitted.... Consequently, the first inquiry must be, Does the complaint state a cause of action if the allegations relied upon solely to support the claim for exemplary damages be disregarded? If it does not, it is insufficient, and the claim for exemplary damages collapses with the rest of the case.[8]
The complaint herein stated a claim for relief in replevin which justified specific relief (i.e., return of the tractor) independent of punitive damages.
*493 McCormick next notes that since most cases which the courts review involve causes of action in which injuries are not actionable without a showing of pecuniary harm, some courts have mistakenly broadened the principle that punitive damages can only be awarded incident to an independent cause of action to the "generalization that `actual' damages must be awarded as a prerequisite to the allowance of exemplary damages."[9] McCormick points out that in most cases this mistaken view will not change the result. However, he does recommend recognition of a second principle which would cover situations such as the one presented herein:
[I]t seems desirable to recognize the principle that, if a cause of action is found to exist by the jury, in a case where "actual" damage is not an essential element of the cause of action, then, if the necessary culpability on defendant's part be established, a verdict for exemplary damages is proper, though the award of other damages is nominal or absent entirely.
It may well be ... that in a given case the plaintiff has proved the existence of substantial pecuniary loss, but the evidence fails to fix the amount of that loss with sufficient definiteness to meet the law's standard of certainty. Does this establish a cause of action independent of punitive damages? As a matter of practical justice, it would seem to present a situation where, in cases of malice or recklessness, the requirement of certainty might well be relaxed as against a culpable wrongdoer by allowing a substantial recovery in the form of exemplary damages, and several decisions support the view that, where the fact of substantial damage is established, though not the amount, punitive damages may be given.[10]
The instant case fits exactly within the second principle announced by McCormick. Appellee Sheldon originally sought to recover the value of the tractor from appellant Haskins on a conversion theory or a breach of warranty to defend title theory. The trial court determined that sufficient evidence had not been presented to warrant sending the case to the jury on either of these theories. Specifically the court ruled that there was not sufficient evidence presented as to the value of the tractor. However, the court did rule that the case could go to the jury for recovery of the tractor on a replevin or claim and delivery theory.
It is important to note that the trial judge specifically instructed the jury that it could not return a verdict against Haskins for punitive damages unless it was satisfied that actual damages had been shown. Jury Instruction 11 provided: "In order to recover exemplary damages, there must be actual damages shown [by appellee Shelden]." (Emphasis added) Thus the jury verdict represents an express finding that appellee Shelden had shown actual damages, even if she had not proven them with sufficient certainty to recover compensatory damages.
The second requirement to recovery of punitive damages is the existence of malice in the wrongdoer's actions.
Punitive or exemplary damages are those awarded in excess of actual loss where the wrongdoer's conduct can be characterized as outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of another.[11]
*494 Appellants argue that the record does not show the evil intent required to justify punitive damages. However, it should be noted that the award of punitive damages is "discretionary with the trier of fact."[12] The decision by the trier of fact to grant or deny punitive damages will be reversed only for clear abuse of discretion.[13]
Jury Instruction 11 in this case expressly required the jury to find "malice, fraud or gross neglect" as a prerequisite to awarding punitive damages. Therefore it must be assumed that the jury's verdict indicates a finding of the requisite malice.
We find that there was sufficient evidence before the jury from which it properly could conclude that appellant Haskins' conduct was malicious. Briefly stated, the record reveals that Haskins sold the tractor to appellee Shelden, guaranteeing its title against encumbrances at a time when he knew a lien existed against it. When the lienholder satisfied the lien with property owned jointly by Haskins and his partner, Haskins arranged for his partner to receive title to the tractor. Whether Haskins told his partner of the prior sale of the tractor to appellee Shelden is not at all clear. When Haskins decided he wanted the tractor back, he encouraged his partner to retrieve it, knowing that appellee Wackwitz, on whose land the tractor was stored, contested Haskins' right to remove the tractor.
Since there was a factual basis for the determination of malice, there was no abuse of the jury's discretion to award punitive damages. Therefore, the award is appropriate and should stand.[14]
III. Did the trial court err in denying appellant's motion for remittitur?
Appellant finally contends that the trial court erred by refusing to remit a portion of the $25,000 exemplary damage award. We have previously held that the decision whether to order a remittitur is within the discretion of the trial court. We only interfere in the exercise thereof in the most exceptional circumstances to prevent a miscarriage of justice.[15] We do not find such an abuse of discretion herein.
CROSS APPEAL
Cross-appellant Shelden asserts error in two decisions of the trial court: (1) the failure to grant prejudgment interest on the award of $25,000 in exemplary damages, and (2) the award of only $1,000 in attorney's fees. We find the decision of the trial court to be correct on the issue of prejudgment interest and remand the issue of attorney's fees to the trial court for further proceedings.
Prejudgment interest is in the nature of compensation for use by defendant of money to which plaintiff is entitled from the time the cause of action accrues until the time of judgment. It is not meant to be an additional penalty.[16]
Prejudgment interest is not to be awarded where its award would do an injustice.[17] However, it is only in the most unusual cases that prejudgment interest *495 is not proper.[18] One such unusual case is where the award of such interest would result in a double recovery.[19]
In this case award of prejudgment interest on the punitive damage award would result in such a double recovery. In making its determination of the appropriate penalty for Haskins' actions, the jury probably assessed the penalty it wished Haskins to presently pay without discounting for prejudgment interest. In addition, cross-appellant Shelden was not deprived of the use of money which she expected to have available during the years of litigation. Therefore, the trial court's decision to deny prejudgment interest in this case was a correct one.
Civil Rule 82(a)[20] provides a schedule of attorney's fees which are to be allowed to the prevailing party as costs of litigation. Rule 82(a)(1) directs that the schedule will be adhered to "in fixing such fees for the party recovering any money judgment," "[u]nless the court, in its discretion, otherwise directs... ." (Emphasis added)
Cross-appellant Shelden argues that the trial judge abused his discretion in awarding her only $1,000 in attorney's fees when the Rule 82(a)(1) schedule would entitle her to $3,350. Shelden also had requested $3,000 in fees in addition to the amount provided in the Rule 82 schedule, arguing that the amount of work necessary to bring this case to judgment warranted such an award.
This court has often noted that the award of attorney's fees to the prevailing party is committed to the broad discretion of the trial court. We will interfere with the trial court's exercise of that discretion only where it has been abused. Abuse of that discretion is established only by a "manifestly unreasonable" award.[21]
Although the trial court's discreion under Rule 82 is broad enough to warrant denial of attorney's fees altogether, denial of a proper motion for attorney's fees by the prevailing party may not result *496 from improper motive. Nor may the denial be arbitrary or capricious.[22] When the trial court departs from the Rule's schedule of fees, the reasons for the nonadherence should appear in the record.[23]
In view of the extended trial proceedings in this case,[24] there is clearly need for an explanation when the court departs from the Rule 82 schedule. The trial court award of $1,000 in attorney's fees is vacated, and this matter is remanded for further proceedings in the trial court.
AFFIRMED as to all matters except the award of attorney's fees and that issue remanded to the trial court for further proceedings.
BOOCHEVER, Chief Justice, concurring.
I base my concurrence on the portion of the opinion pertaining to the denial of appellants' motion for a remittitur on the failure of the appellant to comply with Appellate Rule 11(b)(1)[g] requiring in part that:
The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefore, with citations to the authorities, statutes and parts of the record relied on... .
Appellants' brief devoted one part of one sentence to the contention that it was error to deny the motion for remittitur. For this reason, I would not reach the merits of this contention.[1]
NOTES
[1] We find the other specifications of error to be both without merit and waived by appellant for failure to brief the issues as required by Appellate Rule 11. See Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970); Parks v. Brown, 368 P.2d 220 (Alaska 1962); Veal v. Newlin, Inc., 367 P.2d 155, 157 (Alaska 1961); Wernberg v. Matanuska Electric Ass'n, 494 P.2d 790, 794 (Alaska 1972).
[2] Appellant now attempts to take issue with Jury Instruction 14. That instruction provided:
The court has concluded that the transaction between George Haskins and Carrie Shelden amounted to a valid sales contract which was initially sufficient to transfer legal title to the aforementioned HD-20 Allis Chalmers tractor from George Haskins to Carrie Shelden. One of the questions before the jury is whether this contract could be voided by George Haskins.
To determine whether or not George Haskins had a right to void the contract you must determine what the contract said at the time it was entered into.
If you find that the change which was written into the contract in ink was a part of the contract at the time that the contract was signed by Haskins, then Carrie Shelden is entitled to the HD-20 Allis Chalmers tractor and, if appropriate under these instructions, to punitive damages.
If you find that the change written into the contract in ink was not in the contract at the time George Haskins signed said contract, then you must determine whether or not Carrie Shelden was able to, and did in fact transfer possession of a one-half interest in said mining claim to Haskins. If such a transfer was made, then Carrie Shelden is entitled to the HD-20 Allis Chalmers tractor and, if appropriate under these instructions, to punitive damages.
If you find that the change written into the contract in ink was not in the contract at the time George Haskins signed the contract and that Carrie Shelden was unable to transfer a one-half interest in the mining claims to Haskins, then George Haskins is entitled to the aforementioned Allis Chalmers tractor.
[3] Civil Rule 51(a) provides in pertinent part:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law set forth in the request... . No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection....
[4] Gregory v. Padilla, 379 P.2d 951, 955 (Alaska 1963); Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91-92 (Alaska 1974); Meyst v. East Fifth Avenue Service, Inc., 401 P.2d 430, 434 (Alaska 1965). See also Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).
[5] See 1 Corbin, Contracts § 6 at 12, n. 6 (West 1963).
[6] Appellants' Brief at 12.
[7] See note 2, supra.
[8] McCormick, Damages § 83 (West 1953).
[9] Id.
[10] Id. (citations omitted; first emphasis in original, second emphasis added). See Sterling Drug v. Benatar, 99 Cal. App.2d 393, 221 P.2d 965 (1950); Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310, 314-315 (1969); Crystal Dome Oil & Gas Co. v. Savic, 51 Idaho 409, 6 P.2d 155 (1932); McClung-Logan Equipment Co. v. Thomas, 226 Md. 136, 172 A.2d 494 (1961). See also Winkler v. Hartford Accident & Indemnity Co., 66 N.J. Super. 22, 168 A.2d 418, 422 (App.Div. 1961), cert. denied 34 N.J. 581, 170 A.2d 544; Barber v. Hohl, 40 N.J. Super. 526, 123 A.2d 785, 789 (App.Div. 1956).
[11] Bridges v. Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962).
[12] Id.
[13] Schafer v. Schnabel, 494 P.2d 802, 805 (Alaska 1972); Nissen v. Hobbs, 417 P.2d 250, 251 (Alaska 1966), citing Bridges v. Alaska Housing Authority, 375 P.2d 696 (Alaska 1962); Restatement, Torts § 908 (1939); Prosser, Torts § 2 at 9-11 (2d ed. 1955); McCormick, Damages § 84 at 296 (1935); 70 Harv.L.Rev. 517-533 (1957).
[14] We are not presented in this case with an adversary attack on the concept of punitive damages. Appellant did not raise the issue of whether that concept retains any viable function in the present state of our common law. This issue is presented in a case currently before this court, Day v. Sturm, Ruger and Co., Inc., Supreme Court Nos. 3092 and 3135.
[15] National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966). See also Hash v. Hogan, 453 P.2d 468 (Alaska 1969).
[16] Davis v. Chism, 513 P.2d 475, 481-82 (Alaska 1973).
[17] State v. Phillips, 470 P.2d 266, 274 (Alaska 1970).
[18] Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973).
[19] Era Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d 1057, 1063 (Alaska 1974); State v. Stanley, 506 P.2d 1284, 1295 (Alaska 1973).
[20] Civil Rule 82 provides in pertinent part:
(a) Allowance to Prevailing Party as Costs.
(1) Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law:
ATTORNEY'S FEES IN AVERAGE CASES
Contested Without Trial Non-Contested
First $2,000 25% 20% 15%
Next $3,000 20% 15% 12.5%
Next $5,000 15% 12.5% 10%
Over $10,000 10% 7.5% 5%
Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as part of the costs of the action, in its discretion, in a reasonable amount.
(2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered.
[21] Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970); Froelicher v. Hadley, 442 P.2d 51, 53 (Alaska 1968); Cooper v. Carlson, 511 P.2d 1305, 1309 (Alaska 1973); Adoption of V.M.C., 528 P.2d 788, 795 (Alaska 1974).
[22] Cooper v. Carlson, 511 P.2d 1305, 1310-1311 (Alaska 1973).
[23] Patrick v. Sedwick, 413 P.2d 169, 179 (Alaska 1966); Cooper v. Carlson, 511 P.2d 1305, 1310-1311 (Alaska 1973).
[24] Proceedings below in this case included one default proceeding, two complete trials and numerous court appearances, as well as dismissal of cross-appellees' counterclaim.
[1] Wernberg v. Matanuska Electric Association, 494 P.2d 790, 794 (Alaska 1972); Lewis v. State, 469 P.2d 689, 691, 692 n. 2 (Alaska 1970); Associated Engineers & Contractors, Inc. v. H. & W. Const. Co., 438 P.2d 224, 228 (Alaska 1968).
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NO. 07-01-0088-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 30, 2001
______________________________
CHARLIE EDWARD BROADBENT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 5592; HONORABLE LEE WATERS, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In this appeal, appellant Charlie Edward Broadbent challenges his conviction of
aggravated assault on a public servant. Pursuant to his guilty plea and a plea bargain, he
was originally granted deferred adjudication. Subsequently, he was adjudicated guilty and
ordered to serve ten years confinement in the Institutional Division of the Department of
Criminal Justice. In pursuing his challenge, he presents five issues for our consideration.
In those issues, he argues: 1) the trial evidence was insufficient to sustain the court's
revocation of deferred adjudication because the terms of the order placing him on deferred
adjudication probation were never placed into evidence; 2) he should have been granted
a new trial because the evidence "was insufficient to sentence appellant"; 3) the trial court
erred in not admitting him to bond because the offense for which he was convicted was
committed prior to the September 1, 1999 effective date of the amendment of article
44.04(b) of the Code of Criminal Procedure; 4) the trial court erred in refusing him an
appeal bond while this appeal is pending because, with credit for jail time, his sentence
would be less than ten years, and article 44.04(b) of the Code of Criminal Procedure
permits an appeal bond in such instances; and 5) the trial court erred in denying his
request for an appeal bond without a hearing. Disagreeing that the answers to any of the
issues require reversal, we affirm the judgment of the trial court.
We must first decide if we have jurisdiction to consider this appeal. That question
arises because, as we have noted, appellant was placed on deferred adjudication as the
result of a plea bargain. That being so, to vest us with jurisdiction, appellant's notice of
appeal must have complied with the requisites of Texas Rule of Appellate Procedure
25.2(b)(3).
In matters such as that now before us, i.e., a proceeding to adjudicate guilt in a
deferred adjudication matter which was the result of a plea-bargained guilty plea, Rule
25.2(b)(3) requires that at least one of three averments appear in the notice of appeal.
Those three averments are: 1) the appeal involves a jurisdictional defect; 2) the substance
of the appeal was raised below by a written motion which was ruled on by the trial court;
or 3) the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). If there are
no such allegations in the notice of appeal, we are restricted to consider only those issues
or points averring jurisdictional defects.
In that connection, the Court of Criminal Appeals recently had occasion to revisit the
question of an appeal from an adjudication of guilt after a plea-bargained grant of deferred
adjudication. See Vidaurri v. State, 49 S.W.3d 880 (Tex.Crim.App. 2001). As relevant
here, the court held an appellant's right to appeal a decision to proceed to adjudication was
subject to the requirements set out in Rule 25.2(b). Id. at 884-85. The court also held that,
with the exception of a right to a separate punishment hearing, if timely requested, an
appellant's right to appeal a decision to proceed to adjudication was limited to the matters
set out in Rule 25.2(b)(3). Id. Parenthetically, the court also noted that if a defendant was
improperly sentenced without the opportunity to present evidence prior to sentencing, the
error may be preserved by raising it in a motion for new trial. Id. at 886. Although its
impact was not discussed by the Vidaurri court, we also note that article 42.12 of the Code
of Criminal Procedure provides that "[n]o appeal may be taken from this determination [to
adjudicate guilt]." Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2001). It
is well established that a state may limit or even deny the right to appeal a criminal
conviction. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992).
In this proceeding, appellant originally only filed a general notice of appeal.
Subsequently, he filed an instrument which he denominated as an "Amended Notice of
Limited Appeal." In that instrument, he states that his appeal "is limited to the following
points of error related to the punishment phase of the trial only." The points he enumerates
are:
1. Whether there was no evidence or insufficient evidence introduced by the
State at the punishment phase to support conviction of Defendant.
2. Whether the trial court erred in refusing to consent to permit Defendant
to prosecute [his] appeal;
3. Whether the trial court erred in refusing to set bond while Defendant
appeals this conviction, the offense occurring prior to the change in article
44.04, T. R. Crim. P.
Although appellant did timely file a motion for new trial, in that motion his allegations
were:
The trial court committed a material error calculated to injure the rights of the
accused, to-wit:
(a) the trial court was not requested to take judicial notice of the file and in
fact did not take judicial notice of the previous file in this case, nor did the
State offer into evidence copies of the original judgment in the case placing
Defendant on Deferred Adjudication and therefore there was no evidence
upon which to base the sentencing of Defendant for a violation of the terms
and conditions of such judgment;
(b) there is insufficient evidence to support the sentence imposed upon
Defendant by the trial court in that the State offered no evidence as to the
terms and conditions of the judgment purportedly violated by the Defendant.
Thus, neither at trial nor in his motion for new trial did appellant request a separate
punishment hearing. Even if his first two issues could be construed as being directed at
the punishment assessed at the adjudication proceeding, by his failure to timely request
a separate punishment hearing, he has waived his right to complain of any alleged
deficiencies in the adjudication hearing. Thus, in this appeal, we are limited to matters that
might constitute a jurisdictional defect.
The thrust of appellant's challenge under his first two issues is that because the
State failed to introduce the order deferring adjudication and placing him on probation, the
evidence was insufficient to justify adjudicating his guilt and assessing his punishment.
However, evidentiary insufficiency does not affect the jurisdiction of the court to consider
motions to adjudicate guilt. Thus, because appellant failed to meet the prescribed
requirements of article 25.2(b)(3), we have no jurisdiction to consider his appeal.
Moreover, even assuming arguendo that appellant was entitled to raise the issues
on appeal, they do not present reversible error. In Cobb v. State, 851 S.W.2d 871 (Tex.
Crim.App. 1993), the court had occasion to consider the revocation of a "regular" probation.
In that case, the appellant also argued that because the State had failed to introduce the
judgment and the probation order into evidence, the evidence was insufficient to show a
violation of the terms of probation. Id. at 872. In overruling that challenge, the Cobb court
held that while it was essential that these documents appear in the record, it was not
necessary that they be formally proved in the revocation hearing. Id. at 873-74. The court
explained its holding by noting that the probation revocation hearing was merely an
extension of the original proceeding and if the documents were contained in the court's
record, their receipt into evidence was not necessary. Id.
In arguing that the Cobb rationale is not applicable here, appellant reasons that
because "no adjudication of guilt has been entered prior to the [adjudication] hearing, an
adjudication of guilt at the hearing comes before the imposition of a sentence and before
determination of the criminal proceedings." Continuing, he argues that while such formal
proof may not be necessary in a probation revocation hearing, "it is certainly required at
the punishment phase of the trial." Thus, he concludes, without the order deferring
adjudication and setting the probationary conditions under which adjudication was
deferred, the court could not determine if any of the probationary conditions were violated
and the evidence was thus insufficient.
Appellant's argument overlooks the clear teaching of Cobb, which was that because
of a trial court's continuing jurisdiction over a case until a final judgment is entered, an
order granting probation is actually interlocutory until a final order is entered either
dismissing the prosecution or proceeding to adjudication and assessing a sentence.
Likewise, in deferred adjudication proceedings, the trial court's jurisdiction continues until
the proceeding is dismissed because the defendant has fulfilled the conditions of the
deferred adjudication or until an adjudication and sentencing has occurred. Therefore, the
re-introduction of instruments already in the court's record is not necessary in either regular
revocation or deferred adjudication proceedings.
Additionally, and parenthetically, at the adjudication hearing, the trial judge carefully
read the violations of appellant's probation alleged in the State's motion to proceed to
adjudication. Appellant entered a plea of true to two of those allegations, namely that he
failed to report and participate in community service projects as ordered. It is established
that in cases of "regular" probation, a plea of true to any of the alleged violations of
probation is sufficient to support a revocation and, once a plea of true has been entered,
a defendant may not challenge the sufficiency of the evidence to support the subsequent
revocation. See Rincon v. State, 615 S.W.2d 746, 747 (Tex.Crim.App. 1981); Moses v.
State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979); Cole v. State, 578 S.W.2d 127, 128
(Tex.Crim.App. 1979). Because of the similarity of the two situations, the same rule would
be applicable in adjudication hearings. Thus, even assuming arguendo that appellant was
entitled to raise the question of the sufficiency of the evidence, no reversible error has
been shown. Appellant's first two issues are overruled.
In his next three issues, appellant contends the trial court violated his constitutional
rights by retroactively applying an amendment of article 44.04(b) of the Code of Criminal
Procedure. On June 2, 1997, the date that appellant was granted deferred adjudication,
article 44.04(b) allowed an appeal bond if the punishment was assessed at 15 years
confinement or less. However, effective September 1, 1999, the article was amended to
prohibit the release of a defendant on bond pending appeal from a felony conviction in
which the punishment assessed equals or exceeds 10 years confinement. Tex. Code
Crim. Proc. Ann. art. 44.04(b) (Vernon Supp. 2001).
Article 1, section 16 of the Texas Constitution provides:
No bill of attainder, ex post facto, retroactive law, or any law impairing the
obligation of contracts, shall be made.
Appellant argues that because his "conviction" relates back to "June 2, 1997, the effect
of the amendment to Article 44.04(b) in 1999 is to the detriment or disadvantage of
Appellant and would be unconstitutional."
An ex post facto law is one that 1) punishes as a crime an act previously committed
which was innocent when done; 2) changes the punishment and inflicts a greater
punishment than the law attached to the criminal offense when committed; 3) deprives a
person charged with a crime of any defense available at the time the act was committed;
or 4) alters the legal rules of evidence and requires less or different evidence than the law
required at the time of the commission of the offense. Carmell v. Texas, 529 U.S. 513, 522,
120 S.Ct. 1620, 1627, 146 L.Ed.2d 577 (2000); Grimes v. State, 807 S.W.2d 582, 584
(Tex.Crim.App. 1991).
In this case, it is evident that appellant was not convicted until March 8, 2001, the
date he was actually adjudicated guilty and his punishment assessed at ten years
confinement in the Institutional Division of the Department of Criminal Justice. That date,
of course, is well after the September 1, 1999 effective date of the amendment to the
statute. The application of article 44.04(b) as amended, does not punish as a crime an act
previously committed that was innocent when done, it does not make more burdensome
the punishment for a crime after its commission, it does not deprive appellant of any
defense according to law at the time he committed the offense, and it does not alter or
reduce the quantum of evidence required to convict appellant of an offense. Thus,
implementation of the amended statute does not have any retroactive or ex post facto
effect.
Appellant also argues that even assuming application of the amended statute is
correct, with his allowed credit for 117 days jail time, "his sentence at the time of
sentencing was considerably less than ten (10) years and he was entitled to bond pending
this appeal." As authority for that contention, he cites Jackson v. State, 990 S.W.2d 879
(Tex.App.-Beaumont 1999, no pet.). Arguably, the portion of that opinion in which the
court held that the limitation prohibiting appeals from decisions to adjudicate guilt after a
deferred adjudication is granted, does not prevent appellate consideration of claims that
the punishment assessed was not within the range allowed by law might be relevant. Id.
at 81. However, this court has disagreed with that holding. See Coleman v. State, 955
S.W.2d 360, 362 (Tex.App.-Amarillo 1997, no pet.).
Moreover, even assuming the Beaumont court's decision is correct, in this case,
appellant is not arguing the sentence assessed by the trial court is not within the range
prescribed by law. Rather, the question he presents is whether his eligibility for an appeal
bond is measured by the number of years of imprisonment actually assessed or by the
lesser amount of time appellant would actually be required to serve to satisfy his sentence.
In Daniel v. State, 623 S.W.2d 411 (Tex.Crim.App. 1981), the court had occasion
to consider a similar question. In doing so, it concluded that "the term of confinement
assessed, the maximum sentence imposed, is controlling whether an appellant may be
released on bond" (emphasis added). Id. at 412. We agree with that holding. That being
so, the trial court here did not err in refusing an appeal bond pending this appeal.
Appellant's third, fourth, and fifth issues are overruled.
In final summary, all of appellant's issues are overruled and the judgment of the trial
court is affirmed.
John T. Boyd
Chief Justice
Do not publish.
e="Bibliography"/>
NO. 07-10-00517-CV
IN THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL A
JANUARY
13, 2011
IN RE PASCAL MORGAN, RELATOR
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appearing pro se, relator Pascal Morgan has filed a
petition for writ of mandamus seeking an order directing the Honorable Pat
Boone, Jr., to rule on a motion to set aside and vacate a void judgment. According to relator,
seventy-five days have passed without judicial determination of the
motion. We will deny the petition.
A relator
seeking relief by mandamus must show that the trial court clearly abused its
discretion, and the relator has no adequate remedy by
appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig.
proceeding) (citing In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)). Before mandamus relief may issue, the relator must establish that the trial court 1) had a legal
duty to perform a non-discretionary act, 2) was asked to perform the act, and
3) failed or refused to do so. OConnor v. First Court of Appeals, 837 S.W.2d 94,
97 (Tex. 1992) (orig. proceeding); In re
Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo
2001, orig. proceeding).
Relator is not entitled to relief by
mandamus for several reasons. First, his
petition omits the certification required by Rule of Appellate Procedure
52.3(j).[1]
Second, relator
identifies the respondent of his petition as the Honorable Pat Boone, Jr.,
presiding Judge of the 154th Court of Lamb County, Texas. We take judicial notice that Judge Boone is
deceased and the Honorable Felix Klein is judge of that court. Mandamus is directed specifically to an
individual judicial officer. It is not
directed to a judge simply because he or she occupies the office formerly held
by the judge of whom a relator complains. See In
re Roseland Oil & Gas, Inc., 68 S.W.3d 784, 786 (Tex.App.--Eastland
2001, orig. proceeding) ([m]andamus is personal to
the judge). In other words, [a] writ
of mandamus will not lie against a successor judge in the absence of a refusal
by him to grant the relief Relator seeks. State
v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding). The record relator
presents does not include any evidence that at a time Judge Boone presided over
the 154th Judicial District Court relator demanded of
him a ruling on his motion and Judge Boone failed or refused to act. Thus, the present proceeding is not a case
subject to the abatement procedure of Rule of Appellate Procedure 7.2.[2] Because relator has
failed to name the proper respondent, his petition must be denied.
Third, even had relator
named the proper respondent, mandamus relief could not issue. The appendix filed by relator
contains his motion and a transmittal letter to the district clerk. Neither the motion nor the letter
bear any indication they were received and filed by the district
clerk. Importantly, missing from the
mandamus record is any proof the motion was called to the attention of the
presiding judge. A court has no duty to
consider a motion not called to its attention.
Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.--Houston
[1st Dist.] 1994, writ denied).
Merely filing a motion with the district clerk does not prove it was
brought to the attention of the trial court because the clerks knowledge of
the motion is not imputed to the trial court.
In re Chavez,
62 S.W.3d at 228. Therefore, a [relator] must prove that the trial court received notice of
the pleading . . . . Merely alleging that something was filed with or mailed to
the district clerk does not satisfy that requirement. In re Metoyer, No. 07-07-0506-CR, 2008 Tex. App. Lexis 243,
at *4 n.2, (Tex.App.--Amarillo January 14, 2008,
orig. proceeding) (mem. op.) (not
designated for publication) (citations omitted). The rationale underlying this precept is apparent. [A] court cannot be faulted for doing
nothing when it is or was unaware of the need to act. In re Metoyer, 2008 Tex. App. Lexis 243,
at *3. Relators
petition fails for want of proof that his motion was brought to the attention
of the trial court and it failed or refused to act. See In
re Posey, No. 07-03-0518-CV, 2004 Tex. App. Lexis 695, at *2-*3 (Tex.App.--Amarillo January 22, 2004, orig. proceeding) (mem. op.).
Based on the foregoing analysis, we
deny relators petition for writ of mandamus.
James
T. Campbell
Justice
[1] Relator attaches an inmate
declaration to his petition but omits the required certification of Rule of
Appellate Procedure 52.3(j) that he reviewed the petition and concluded that
every factual statement in the petition is supported by competent evidence
included in the appendix or record. Tex. R. App. P. 52.3(j).
[2] A writ of
mandamus will not issue against the new judge of a court for the action of a
former judge. Rather Rule of Appellate
procedure 7.2 requires abatement of a pending original proceeding so that the
successor judge may consider the complained-of order of his or her predecessor.
Tex. R. App. P. 7.2; In re Baylor Medical Center at Garland,
280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding). Here, since the motion was not presented to
Judge Boone, there is nothing for Judge Klein to reconsider.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 08-40653
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERT M. FENLON,
Plaintiff-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
in Both His Official and Personal Capacity;
CHIEF ADMINISTRATOR OF UNIVERSITY OF TEXAS
MEDICAL PROVIDERS, Employed by University of Texas Medical Branch;
PERSONS UNKNOWN, Employed by Texas Department of Criminal Justice;
UNIDENTIFIED OFFICERS,
Employed by Texas Department of Criminal Justice;
LIEUTENANT BALDWIN,
Law Library Supervisor Employed by Texas Department of Criminal Justice,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
No. 6:07-CV-532
No. 08-40653
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Robert Fenlon, a Texas state prisoner, sued under 42 U.S.C. § 1983 for al-
leged violations of his constitutional rights. The district court found Fenlon’s
claims entirely without merit and dismissed the lawsuit as frivolous under 28
U.S.C. § 1915A(b). Fenlon appeals. Finding no error, we AFFIRM.
I.
Fenlon brought nine claims; the first four related to a cancerous lump in
his neck and an abdominal aneurysm. In his complaint and at an evidentiary
hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), Fen-
lon stated that for years he was told that the lump on his neck was not cancer.
It was later determined that the lump is squamous cell carcinoma, a type of can-
cer.
Fenlon claimed his chance of eradicating the cancer has been significantly
harmed by the doctors’ failure to identify it earlier. In his first cause of action,
he alleged that his medical care reflects deliberate indifference to his medical
needs. In his second, Fenlon averred that the six-month wait between the time
his cancer was diagnosed and his operation shows deliberate indifference proxi-
mately caused by the policy of underfunding the prisoner medical care system.
His third claim involved an abdominal aneurysm. Fenlon had complained to
prison medical providers of a “pulsing lump” in his stomach, but they had told
him it was not a problem. A few years later, that lump was diagnosed as an ab-
dominal aneurysm. He claimed deliberate indifference. The aneurysm was di-
*
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.
2
No. 08-40653
agnosed in June 2007 and operated on on August 7, 2007. He alleged that the
forth-three-day delay between diagnosis and surgery showed deliberate indif-
ference. In his fifth claim, Fenlon asked for an injunction ordering that his teeth
be repaired. His sixth claim related to denial of post-operation medication at
nighttime. He averred that the problem is with Texas Department of Criminal
Justice (“TDCJ”) policy, which does not provide nighttime medication to prison-
ers after surgery.
Fenlon’s seventh claim concerned discomfort caused by the buses that reg-
ularly transport him from his prison to off-site medical hospitals at his request.
Fenlon argued that the buses’ “truck-like suspensions” and lack of air condition-
ing combined to create a ride that amounted to torture. In his final two claims,
Fenlon argued that he was denied access to court. Specifically, he complained
that he can access the prison’s law library for only fifteen hours per week. He
also contended that he could not file his petition for writ of certiorari to the U.S.
Supreme Court, because the petition required a copy of the district court’s opin-
ion, and TDJC policy does not give prisoners access to a photocopy machine.
Fenlon presented these claims pro se. The district court held a Spears
hearing, thoroughly identified Fenlon’s factual and legal allegations, and com-
prehensively reviewed his prison records. The court then dismissed Fenlon’s
claims in a lengthy and exhaustively-documented opinion.
Fenlon appeals, arguing that the court failed to address his true allega-
tions. He invites us to consider the judgment through the framework of the
Madisonian Compromise and the Separation of Powers doctrine. We decline the
opportunity to expound on the origins of our federal judiciary.
II.
The district court described the five-year delay in identifying the squa-
mous cell carcinoma as the “heart of Fenlon’s complaint.” Although the court
3
No. 08-40653
sympathized with Fenlon’s personal tragedy, it did not find evidence of delib-
erate indifference to his medical needs. “Deliberate indifference is an extremely
high standard to meet. It is indisputable that an incorrect diagnosis by prison
medical personnel does not suffice to state a claim for deliberate indifference.”
Domino v. TDCJ-ID, 239 F.3d 752 (5th Cir. 2001). The district court did not find
a constitutional violation in the delay of several months for treatment or a policy
of deliberately underfunding medical care for prisoners.
The court also dismissed Fenlon’s allegations that prison bus rides amount
to torture, citing Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981), for the propo-
sition that restrictive and harsh prison conditions are part of the penalty im-
posed by society on criminal offenders. The court emphasized that mere discom-
fort or inconvenience does not amount to an Eighth Amendment violation, Wil-
son v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), and Fenlon’s allegations do
not amount to anything more. Fenlon also did not show any constitutionally sig-
nificant harm from the few hours during which he was denied pain medication.
Nor did he show that prison officials were deliberately indifferent to his dental
needs or that he has been denied access to court. The district court found Fen-
lon’s entire complaint to be frivolous and meritless under § 1915A and Neitzke
v. Williams, 490 U.S. 319, 325-27 (1989).
III.
We review a § 1915 dismissal as frivolous for abuse of discretion. Wilson,
878 F.2d at 850. “District courts have broad discretion in determining whether
a complaint is frivolous.” Id. at 849. The record establishes that Fenlon’s claims
are without merit. Mere medical negligence does not give rise to a § 1983 claim,
just as mere discomfort on bus rides does not trigger the Eighth Amendment.
Brief delays in receiving pain medication and medical care do not give rise to
claims of a constitutional dimension, either. The district court held a Spears
4
No. 08-40653
hearing, carefully considered Felon’s complaint, and reviewed his prison records.
We find no error in that court’s thorough and careful opinion, and, essentially
for the reasons set forth therein, we AFFIRM. All pending motions are
DENIED.
5
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41000
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO I. GUZMAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-03-CR-12-1
--------------------
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Ricardo I. Guzman appeals his sentence following his guilty
plea conviction of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Guzman argues that the
district court clearly erred in finding by a preponderance of the
evidence that he had used or possessed the firearm in connection
with another felony offense, specifically, the kidnaping of Sally
Moncevais. Guzman urges that the district court thus improperly
1
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. 03-41000
-2-
ncreased his offense level by four levels pursuant to U.S.S.G.
§ 2K2.1(b)(5).
A review of the record shows that the district court correctly
found that Guzman committed kidnaping as defined by Texas law. See
TEX. PENAL CODE §§ 20.01(1); 20.03. A preponderance of the evidence
also shows that the gun was used “in connection with” the
kidnaping. See United States v. Fadipe, 43 F.3d 993, 994 (5th Cir.
1995).
AFFIRMED.
2
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502 F.Supp. 472 (1980)
Dotti D. Jernigan BRYANT, Plaintiff,
v.
INTERNATIONAL SCHOOLS SERVICES, INC., Defendant.
Theresa O. LILLIBRIDGE, Plaintiff,
v.
INTERNATIONAL SCHOOLS SERVICES, INC., Defendant.
Civ. A. Nos. 78-2517, 78-2563.
United States District Court, D. New Jersey.
December 4, 1980.
*473 *474 Yvette Weiss, Trenton, N. J., for plaintiffs.
McCarthy & Hicks, Princeton, N. J., for defendant; Kenneth J. McCulloch, Townley & Updike, New York City, of counsel.
OPINION
DEBEVOISE, District Judge.
I. Parties and Proceedings
Plaintiffs in these consolidated actions, Theresa O. Lillibridge and Dotti D. Jernigan Bryant, instituted suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiffs charge that the practice of defendant, International Schools Services, Inc. ("ISS"), of awarding to its overseas teachers two kinds of employment contracts having substantially different compensation and benefit provisions constituted unlawful discrimination against plaintiffs on the basis of sex.
Lillibridge and Bryant were teachers employed by ISS at the American School in Isfahan, Iran. Each was hired in Iran at a time when she was married to a person employed in that country either by Bell Helicopter International, Inc. or Grumman Aerospace Corporation, each of which provided goods and services to the Iranian government. Both Lillibridge and Bryant were hired pursuant to what has been called, in this case, a "local-hire" contract, one of the two kinds of contracts which ISS entered into with teaching personnel at the American School. The other kind of contract has been referred to in this case as the "ISS-sponsored" contract, under which an employee received benefits substantially greater than those received under the local-hire contract.
ISS is a private, non-profit corporation organized under the laws of the District of Columbia, with its headquarters in Princeton, New Jersey. ISS works by contract with overseas governments or corporations to operate schools for children of American employees overseas. The services it provides are educational consulting, school operation, education staffing, purchasing, procurement and financial management.
The case was tried without a jury, and decision was reserved. This opinion constitutes this Court's findings of fact and conclusions of law.
II. Findings of Fact
A. The ISS Contracts
The American School in Isfahan, one of the schools ISS operated, was established in 1973, pursuant to a contract between ISS and Bell Helicopter. The contracts which Bell Helicopter and other companies performed for the Iranian government required the presence of the companies' employees overseas in Iran. These employees *475 brought their families. It was ISS's responsibility, under its contract, to establish a school and employ and supervise the staff of the school where the children of these employees would be educated. ISS initially contracted with Bell Helicopter to operate the American School; for 1976 and thereafter, ISS contracted directly with the Iranian government to operate the school.
The school term for the American School ran from September of one year through June of the next year, and the staff went on annual leave for the summer months. The American School operated until January 6, 1979, when it was permanently closed due to the revolution in Iran which began in late 1978.
All of the staff at the American School were compensated according to the same base salary scale, which varied depending upon (1) teaching experience and (2) educational achievement. The base salary scale is not an issue in this case.
In addition to base salary, all staff were offered certain other benefits. These benefits were:
1. A continuity incentive equal to 15% of base salary after three years of service and for each subsequent year thereafter;
2. ISS-paid major medical insurance, life insurance and long-term disability insurance;
3. Voluntary participation in a retirement plan. This was a TIAA/CREF plan. The staff member contributed a minimum of 5% of base salary to this retirement plan; if the staff member did this, ISS would contribute 10% of base salary;
4. Voluntary participation in Blue Cross/Blue Shield. ISS would pay 50% of the premium and the staff member would pay the other 50% of the premium.
Teachers at the American School taught under two kinds of contractslocal-hire contracts and ISS-sponsored contracts.[1] Regardless of the kind of contract, the duties of the teachers did not differ. Persons who had ISS-sponsored contracts received additional allowances. These additional allowances were as follows:
1. An overseas allowance paid monthly and equal to 25% of base salary. This was for each member of a teaching couple as of the school year commencing September, 1978, and to one member of the teaching couple prior to that date;
2. A transportation allowance of $150 per month to help offset the costs to be incurred because it was prohibitively expensive to ship automobiles to Iran;
3. Reimbursement for costs of transportation and entry into Iran, including passport fees, and medical examinations;
4. A one-time relocation allowance to assist the transition from previous home to new home in Iran;
5. Housing allowance or housing in an American Community near Isfahan (including utilities);
6. Annual round-trip fare to home of record in the United States for staff member and accompanying dependents;
7. Round-trip airfare to and from the United States in case of a death in the family;
8. Shipping allowance based on weight of baggage for staff members and dependents for initial location and a small allotment on an annual basis thereafter;
9. Transition costs (included hotel, motel and per diem allowance for up to three to four days in the United *476 States, and for up to twenty-eight days in Isfahan);
10. Storage of household goods at home of record (up to $500 per year); and
11. Annual round-trip airfare for college age children (up to four round-trips per four-year period).
The extra benefits paid under the ISS-sponsored contracts were comparable to extra benefits which business corporations under contract with the Iranian government paid to United States citizens they recruited to work in Iran. ISS specifically patterned its benefits upon those provided by Bell Helicopter.
Teachers having ISS-sponsored contracts were hired in the United States and in Isfahan; teachers having local-hire contracts were hired only in Isfahan.
B. Bryant's Employment by ISS
Bryant was married to Marc Jernigan in 1974 and was an elementary school teacher by profession. She expected to accompany her husband to Iran, where he was to be employed by Grumman. She learned of ISS from a Grumman employee and wrote to ISS at Princeton, New Jersey, informing it of her expected arrival in Isfahan, Iran, in October 1975. ISS sent her application forms, which she completed and returned in early May, 1975. Receiving no response, Bryant made inquiry by letter dated July 30, 1975, again addressing her letter to ISS at Princeton. On September 22, 1975, ISS replied, stating that all positions were filled and advising her to communicate with the School superintendent upon her arrival in Isfahan.
When Bryant arrived in Isfahan in November, 1975, a Grumman employee introduced her to Michael White, the principal of the American School's Middle School. He already had her reśume and hired her forthwith as a substitute teacher, paid on a daily basis. In April 1976, ISS hired Bryant on a full-time basis and entered into a local-hire contract with her. The contract recited that Bryant was entitled to participate in the benefit program attached to the letter agreement. There was no attachment to the letter agreement. She was not informed of the fact that there were two kinds of contract, nor was she given a copy of the School's personnel manual.
While she was a substitute teacher she had heard of certain allowances being paid to some of the teachers.
After her employment under a local-hire contract commenced, Bryant asked the American School's assistant superintendent, Ralph Englesby, whether she would receive these allowances. He replied in the negative and, during the course of their discussion, informed her, "You can sue for them."
At a faculty meeting at the end of the 1975-76 school year which Bryant attended, Dr. Howard Wire, Superintendent of the American School, was asked about the disparity between payments under local-hire contracts and ISS-sponsored contracts. Apparently there was a discussion of an EEOC case entitled Michele Dick v. Telemedia, in which a woman married to a man who worked in Iran was awarded damages for unpaid benefits on the grounds that she, as a married woman, had suffered from discriminatory treatment vis-a-vis married men. Dr. Wire defended ISS's policy of awarding contracts with different benefits. Asked by one of the women if it wouldn't be smart to go to the United States to sue ISS, Dr. Wire stated that "I wouldn't do so if I were you while you and your husband are employed here."
In October, 1976, Bryant signed another local-hire contract for the school year 1976-77. In March of 1977 Bryant and her spouse decided to seek a divorce. She remained in Iran until June in order to complete her contract with ISS and then returned to the United States. During the period while she was employed under a local-hire contract she received none of the extra benefits provided by an ISS-sponsored contract. She received the equivalent of some of these benefits through her husband's employer, Grumman, such as the expenses of her trip to Iran, housing in Iran, luggage allowance, and moving allowance.
*477 C. Lillibridge's Employment by ISS
In May, 1975, Lillibridge, a teacher by profession, accompanied her husband to Iran where he was employed as a pilot by Bell Helicopter. She learned of the American School and, in late June or early July, 1975, she had an interview with Dr. Wire. She completed application forms which disclosed her marital status, the fact that her husband did not teach, and her local address, which also disclosed her husband's affiliation with Bell Helicopter. Lillibridge was not hired at that time, but in October, 1975 she was interviewed by Ralph Englesby and then by Michael White, who hired her to teach the sixth grade.
Shortly afterward she received the contract form which had "Local Hire Contract" written at the top. No one explained to her what that meant. There was a reference to an attached schedule of benefits, but no such schedule accompanied the copy of the contract sent to Lillibridge. She, like Bryant, was not told there were two kinds of contracts and she, too, was not provided with a copy of the pamphlet describing the American School's personnel policies.
After starting her employment Lillibridge learned about additional allowances some teachers were receiving, and on one occasion she inquired of White whether she, too, could receive a travel allowance to visit the United States. He told her the difference arose from the fact that she was hired in Iran and referred her to Dr. Wire. Dr. Wire then explained that there were two kinds of contracts-those for persons hired in the United States, who received the extra benefits, and those for persons hired in Iran, who did not receive the extra benefits.
Lillibridge attended the faculty meeting at which the disparities between the two forms of contract and the Michele Dick case were discussed.
In the spring of 1976 Lillibridge was rehired under a local-hire contract for the 1976-77 school year. Her husband's contract as an instructor pilot with Bell Helicopter terminated on April 7, 1977. He accepted an additional one-year contract in order to enable her to complete her obligation to ISS for that year and sign up to teach for the 1977-78 school year. Consequently, Lillibridge entered into a local-hire contract for the 1977-78 school year. She took an approved leave of absence in 1978-79, expecting to return in the fall of 1979, but the Iranian revolution intervened.
In the spring of 1978 C. William Schultheis and Burckhard Blob from ISS's headquarters went to Isfahan to explain ISS's personnel policies and benefits to the American School faculty. They stated, at a meeting of the faculty, that there were two kinds of contract. The reason for not paying the additional benefits under the local-hire contracts was that the persons hired locally in Iran did not need the benefits provided by an ISS-sponsored contract because they received these benefits through their husbands under their husbands' contracts.
Lillibridge did not receive any of the extra benefits provided by the ISS-sponsored contract while she was a teacher at the American School. She did receive the equivalent of some of these benefits through her husband's employer, Bell Helicopter, such as certain travel allowances, her initial trip to Iran, and shipment of household goods.
D. ISS's Hiring and Placement Practices
ISS is a non-profit corporation founded for the purpose of providing educational services to English-speaking children living abroad. These services are designed to enable students to re-enter the American educational system upon their return to the United States. ISS has received its funds from foundations and, more recently, under contracts with the United States government and American companies doing business overseas.
The kinds of services ISS provides include staffing and teaching referral programs, financial management, cooperative purchasing and school management programs-the development and operation of schools.
ISS established and followed a routine procedure for processing applications for teaching positions. When it received an *478 inquiry from a person interested in teaching abroad it sent an application form and information about ISS to the applicant. The form asked for information about the applicant's marital status, whether the applicant's spouse also taught, the number of persons who would be accompanying the applicant abroad, the applicant's educational and teaching experience, and the geographical areas in which the applicant would not be willing to teach. ISS would not process an application which excluded all but one geographical area.
After receiving back the form, ISS arranged for an interview with the applicant at Princeton or elsewhere in the United States or abroad. Upon completion of this process the applicant's dossier was activated, that is to say, it was available to be sent to schools seeking teachers.
When overseas schools requested that ISS's referral services provide candidates for teaching positions, ISS reviewed its files of qualified candidates and inquired of those who met the specified qualifications whether they wished to have their dossiers sent to the school seeking teachers. Upon receipt of an affirmative answer the dossier was sent out and the school made the selection.
With respect to overseas schools which ISS itself operated, ISS would communicate with the administrator as to his need for teachers and send him dossiers of candidates for open positions.
Turning specifically to the American School in Isfahan, Iran, Bell Helicopter communicated with ISS and sought the establishment of a school in Isfahan for children of employees of Bell Helicopter working in that part of Iran. ISS and Bell Helicopter entered into a cost-plus contract for the establishment of such a school and, pursuant to the contract, the American School in Isfahan was organized in the summer of 1973, opening its doors to 100-150 students in October of that year.
In the fall of 1975 a second contractor doing work in Iran, Grumman, joined Bell Helicopter on the ISS contract to provide a school for dependent children. Both companies were under contract with the Department of Defense, which had contracted with the Iranian government. Inasmuch as these contracts were on a cost-plus basis and Bell Helicopter's and Grumman's payments to ISS constituted part of their costs, the Iranian government concluded that it would contract directly with ISS and thereby avoid duplicate charges. Consequently, on March 26, 1976, a contract was entered into between ISS and the Military Industries Organization, Government of Iran, effective July 1, 1976 to June 30, 1979. Under this agreement ISS continued to "operate and manage at Isfahan, Iran an American Educational Program for kindergarten and grades 1 through 12 for dependent children of [Grumman, Bell Helicopter and certain others]." Payment was on a cost-plus basis. The American School grew from just under 200 children during the 1973-74 school year to 1800 children at the time it had to be closed.
From the beginning, in 1973, the School was staffed in large part by using the ISS referral service. If it was determined after the beginning of a school year that more teachers were needed, resort was had to Americans in Iran. ISS counted on there being an adequate supply of such persons among the wives of Bell Helicopter and Grumman employees. ISS was not looking specifically for women to fill these positions locally, but it was aware that most, if not all, Bell Helicopter and Grumman employees in Iran were men and that, therefore, the pool from which ISS teachers were to be recruited locally consisted nearly entirely, or entirely, of women.
All of the teachers whom ISS hired through its referral service were given ISS-sponsored contracts with the full panoply of benefits. As for the teachers hired locally, ISS awarded some ISS-sponsored contracts and some local-hire contracts.
Both before commencement of this action and during the course of this litigation ISS has articulated several different bases for distinguishing between persons receiving ISS-sponsored contracts and persons receiving local-hire contracts. It is abundantly *479 clear that ISS did not succeed in perfecting its rationale until the closing phases of this law suit. However, even though ISS never clearly expressed what it was doing either to itself or to others, the evidence suggests that in fact ISS's criterion for awarding contracts was a subjective one, namely, whether the teacher came to Iran and remained there for the primary purpose of teaching at the American School or whether the teacher came to Iran and remained there primarily for some other purpose. In the former situation the teacher was awarded an ISS-sponsored contract and in the latter situation the teacher was awarded a local-hire contract.
ISS decided what was the teacher's primary purpose for coming to or remaining in Iran on the basis of whether the teacher's spouse was employed by Bell Helicopter or Grumman or perhaps some other American company in Iran. Such employment by the spouse would lead ISS to conclude that the would-be teacher and her/his spouse were induced to come to Iran by the spouse's employment and that, presumably, the couple was already receiving benefits comparable to the ones offered by ISS to attract teachers to Iran.
Bryant and Lillibridge claim that ISS's method of awarding two types of contracts discriminated against them on the basis of sex, in violation of Title VII. Specifically, they maintain that the benefits policy resulted in disparate treatment and/or had a disparate impact on themmarried females whose spouses were not employed by ISS.
ISS maintains that its benefits policy was applied equally to males and females and therefore could not result in disparate treatment. Moreover, ISS maintains that its policy did not have a disparate impact on females.
E. The Impact of ISS's Contract Practices
The distribution of local-hire contracts, by sex, during the years when one or both plaintiffs were employed at the American School was as follows:
Year Male Female
1975-76 0 15
1976-77 1[2] 24
1977-78 0 28
1978-79 0 30
___ ____
Total 1 97
All of the females who held local-hire contracts were married.
The distribution of ISS-sponsored contracts, by sex, during the years 1975-1979 was as follows:
Males Females
1975-76 32 33
1976-77 53 54
1977-78 71 71
1978-79 80 82
_____ _____
236 240
(49.58%) (50.42%)
The distribution of ISS-sponsored contracts by married and single males and females during the years 1975-1979 was as follows:
Single Married Single Married
Females Females Males Males
1975-76 20 13 7 25
1976-77 35 19 17 36
1977-78 47 24 27 44
1978-79 46 36 29 51
_____ ____ ____ _____
148 92 80 156
240 236
The number of males and females having ISS-sponsored contracts as a teaching team during the years 1975-79 was as follows:
Males Females
1975-76 11 11
1976-77 15 15
1977-78 20 20
1978-79 31 31
Comparing the immediately preceding two tables it can be seen that in each year most of the married females receiving ISS-sponsored contracts were part of a teaching couple. With a few exceptions, the remaining married women having ISS-sponsored contracts were separated, divorced or otherwise *480 living apart from their spouses. By way of contrast, all men, married and single (with one exception, described in n. 2) held ISS-sponsored contracts. Most married men were not part of a teaching team.
ISS called as an expert witness Dr. Paul Andrisani, associate professor of industrial relations, School of Business Administration, Temple University. The purpose of his testimony was to show whether discrimination can be demonstrated in this case by an adverse impact analysis.
The major portion of Dr. Andrisani's testimony and report was directed to establishing a conclusion with which neither plaintiffs nor ISS disagreed. He demonstrated, on the basis of the statistics available to him, that there was no discrimination as between women and men in awarding ISS-sponsored contracts to applicants for teaching positions who applied in the United States. Although this conclusion was not in dispute, establishing it was useful because it demonstrated the methodology of using statistical data to show adverse impact.
An adverse impact analysis calls for the comparison of various pools. If the question is whether there has been discrimination against females in the selection for ISS-sponsored contracts at the American School, one of the pools to be compared is made up of those persons (both males and females) who received the ISS-sponsored contracts. To determine if statistically there appeared to be discrimination, that pool must be compared with the pool of all males and females who were candidates for positions at the American School.
The pools of females and males who held ISS-sponsored contracts in the applicable school years was compared with three different pools: (i) the females and males who had their dossiers sent to the American School during the twelve-month period prior to the applicable school year (Appendix A); (ii) the females and males who had the opportunity to have their dossiers sent to the American School during the twelve-month period prior to the applicable school year (Appendix B); and (iii) the number of females and males who became newly active candidates for placement by the ISS referral service during the twelve-month period prior to the applicable school year (Appendix C). As can be seen from Appendices A, B and C, using these pools, the statistics suggest that there was no discrimination as between males and females in the award of ISS-sponsored contracts. Females received their expected rate of such contracts.
Plaintiffs contend, however, that the fact that there were 98 less desirable local-hire contracts awarded, and that 97 of the 98 were awarded to married women, is probative of discrimination against married women. Addressing himself to this contention, Dr. Andrisani testified that, standing alone, that figure is statistically meaningless. In order to determine whether those figures supported a conclusion that there was an adverse impact on women (or married women) it would be necessary to know the number of females and males (or married females and married males) who applied locally. With those figures it would be possible to compare the actual selection rate with the expected selection rate. Without those figures, according to Dr. Andrisani, the data is simply not available to determine, on a statistical basis, if females (or married females) suffered an adverse impact.
The foregoing is a summary of the basic facts established by the evidence. Certain additional factual findings will be set forth in subsequent sections of this opinion.
III. Jurisdictional Prerequisites to Suit
In its post-trial memorandum, ISS raised for the first time a contention that plaintiffs failed to establish that they have complied with steps required by Title VII before suit may be instituted in this Court: (i) timely filing of a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), 42 U.S.C. § 2000e-5(e); (ii) deferral of the charge to the appropriate state or local agency, 42 U.S.C. § 2000e-5(c); (iii) issuance by EEOC to plaintiffs of right-to-sue notices, 42 U.S.C. § 2000e-5(f)(1), and (iv) institution of suit by plaintiffs within ninety (90) days of receipt of the notice, 42 U.S.C. § 2000e-5(f)(1).
*481 Plaintiffs' complaints alleged compliance with these requirements in full detail. Although defendant's answers contained a denial that the Court had jurisdiction under 42 U.S.C. § 2000e-5 and denied plaintiffs' specific allegation showing compliance with the statutory conditions, at no point in the lengthy pretrial discovery and motion proceedings did ISS, which was represented by experienced and sophisticated attorneys, raise the issue of non-compliance with those conditions by motion or otherwise.
A detailed Final Pretrial Stipulation and Order was entered. It was signed by ISS's attorney and stated, at page 2, that "Jurisdiction is specifically conferred on this Court by 42 U.S.C. § 2000e-5." Under "Defendant's statement of the legal issues in this case and the law applicable to these issues" (page 43, et seq., of the Final Pretrial Stipulation and Order) ISS set forth only two issues relating to jurisdiction: (i) whether Title VII applies extraterritorially, and (ii) whether the "Act of State" doctrine and the foreign compulsion defense are applicable to this action. Nowhere did ISS in any way suggest that it contested the provision of the Pretrial Stipulation and Order that jurisdiction is conferred on the Court by 42 U.S.C. § 2000e-5 or that the facts alleged in plaintiffs' complaints in this regard were untrue. Under Fed.R.Civ.P. 16 a pretrial order modifies and supersedes conflicting pleadings, "limits the issues for trial" and "controls the course of the action".
At no time did ISS move to modify the Pretrial Stipulation and Order or suggest that it had facts which contradicted those alleged to support jurisdiction. ISS's trial brief did not contain so much as a hint that ISS contended that plaintiffs had not complied with the requirements of 42 U.S.C. § 2000e-5, nor did ISS raise this point in its closing argument, aware, no doubt, that the Court might well have reopened the case so that plaintiffs could have cured any technical deficiency of proof.
In view of the affirmative statement of jurisdiction in the Pretrial Stipulation and Order, which was signed by ISS, and in view of ISS's failure to set forth this question as a legal or factual issue in this case, I do not believe that there is even a technical failure of proof that plaintiffs complied with the conditions of 42 U.S.C. § 2000e-5. Were there such a deficiency I would reopen the case to permit the gap to be filled. Moreover, the tactic of lulling an adversary into security and hitting her/him with a last-minute surprise is not welcome in this Court.
IV. Extraterritorial Application of Title VII
ISS urges that Title VII does not apply extraterritorially and that, therefore, the Court lacks subject matter jurisdiction. ISS advances the following reasons in support of its position:
First, as in the case of the National Labor Relations Act, 29 U.S.C. § 141, et seq., Title VII contains no clear affirmative expression setting forth the territorial jurisdiction of the Act. The National Labor Relations Act does not apply outside the territorial jurisdiction of the United States, RCA OMS, Inc., 202 N.L.R.B. 228 (1973); GTE Automatic Electric, Inc., 226 N.L.R.B. 1222 (1976). ISS concludes that by analogy Title VII should be given the same limited construction.
Second, prior to the enactment of Title VII various other labor laws were narrowly construed to preclude extraterritorial application, Foley Bros., Inc. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949); Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). ISS argues that it would be illogical to think that Congress would grant EEOC the same investigatory powers as it granted to the NLRB and, at the same time, give EEOC greater territorial jurisdiction unless Congress specifically so provided.
Third, ISS contends that § 206(d) of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (commonly known as the Equal Pay Act), should be read in pari materia with Title VII. The Equal Pay Act does not *482 apply outside the territorial jurisdiction of the United States, 29 U.S.C. § 213(f), and, again, ISS argues that it would be illogical to think that Congress meant to limit the jurisdiction of the Equal Pay Act and not Title VII when the two are to be read in harmony with one another.
Fourth, ISS asserts that given the sensitive nature of international affairs, to apply Title VII extraterritorially without an affirmative Congressional expression to do so is unwarranted.
Fifth, ISS seeks comfort from the recent case of Rossi v. Brown, 24 EPD ¶ 31,238 (D.C.Cir.1980). The issue in the Rossi case was whether an agreement with the Republic of the Philippines constituted a treaty, which would form the basis for permissible discrimination against the plaintiff. Section 106 of Public Law No. 92-129[3] prohibited discrimination against United States citizens in the employment of civilian personnel on United States military bases overseas unless such discrimination is permitted by treaty. ISS stated, in a letter memorandum to the Court, "Title VII was intended to offer protection against discrimination to civilian applicants and employees of the military .... It has been so construed in Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978), cert. den., 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978), reh'g den., 439 U.S. 1135, 99 S.Ct. 1061, 59 L.Ed.2d 98 (1979) ... Given the application of Title VII to civilian employees of the Armed Services, the existence of Section 106 of Public Law No. 92-129, and its legislative history, make no sense unless it were intended by Congress that Title VII not apply extraterritorially."
The short answer to all of ISS's arguments against giving extraterritorial effect to Title VII is that Congress has spoken on the subject and that a fair interpretation of the statutory language leads to the conclusion that Title VII is to be given extraterritorial effect.
The question whether an act applies extraterritorially is a matter of statutory construction, for it is well settled that Congress has the power to extend the reach of its laws to American citizens outside the geographical boundaries of the United States. Foley Bros. v. Filardo, supra; Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932). The provision of Title VII exempting certain entities, 42 U.S.C. § 2000e-1, provides in pertinent part:
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation ... (Emphasis added.)
By negative implication, since Congress explicitly excluded aliens employed outside of any state, it must have intended to provide relief to non-aliens, i.e., American citizens, outside of any state by an employer otherwise covered by the Act. Love v. Pullman Co., 12 EPD ¶ 11,225 (D.Colo.1976).
The Love case dealt with the extent to which Canadian porters (aliens) were protected by Title VII and concluded that when such porters operated in the United States they were entitled to relief. In a footnote, the Court explained:
This discussion assumes that the porters in Montreal were not American citizens. American citizens who were employed by Pullman in Canada are entitled to full relief without any subtraction. This conclusion rests on the negative inference of § 702 of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-1. Since Congress explicitly excluded aliens employed outside of any state, it must have intended to provide relief to American citizens *483 employed outside of any state in an industry affecting commerce by an employer otherwise covered under the act. Nothing in the legislative history addresses this specific point, but neither is it contra-indicated. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964. Our research has revealed no cases directly in point. An additional support for this interpretation comes from the international or extraterritorial application of the antitrust laws. See, e. g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 [82 S.Ct. 1404, 8 L.Ed.2d 777] (1962). Id. at n. 4.
The extraterritoriality issue was raised but not decided in EEOC v. Institute of Gas Technology, 23 FEP Cases 825 (N.D.Ill. 1980). In Fernandez v. Wynn Oil Co., 20 FEP Cases 1162 (C.D.Cal.1979), the Court ruled on the merits of a case involving allegedly discriminatory employment qualifications applied to women seeking work in Latin America and Southeast Asia. The Court exercised jurisdiction without discussing the question whether it was entitled to do so.
The language of Title VII quoted above distinguishes it from the other statutes to which ISS refers. The fact that those statutes have been construed not to apply extraterritorially, therefore, does not govern the construction of Title VII.
ISS's argument that the enactment of Pub.L. 92-129, § 106 makes no sense unless it were intended by Congress that Title VII not apply extraterritorially fails for two reasons. First, even though Title VII is applicable to civilian employees of the armed services, 42 U.S.C. § 2000e-16, and even though, given extraterritorial effect, Title VII would be applicable to civilian employees at overseas facilities of the Armed Forces, it was not so applicable at the time of enactment of Pub.L. 92-129, § 106. Until it was amended in 1972 by the Equal Employment Opportunity Act, Title VII did not protect federal employees within or without the United States, Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Thus, when Pub.L. 92-129, § 106 was enacted in 1971, Title VII was not yet applicable to civilian employees of the federal government. Second, Title VII and Pub.L. 92-129, § 106, are directed to different forms of discrimination. The former is directed to discrimination on account of race, color, religion, sex or national origin and the latter, dealing with a much narrower problem than that with which Title VII deals, is directed to discrimination on account of citizenship or being a dependent of a member of the United States Armed Forces.
Thus, I conclude that Title VII has extraterritorial effect and was applicable to ISS's employment practices in Iran.
V. Findings and Conclusions as to Prima Facie Case
Plaintiffs charge both that ISS's hiring practices constituted disparate treatment of them on the basis of their sex and that these hiring practices resulted in a disparate impact upon married women. Plaintiffs do not challenge ISS's hiring practices at its Princeton, New Jersey headquarters, which admittedly resulted in neither disparate treatment nor disparate impact affecting women. They challenge ISS's hiring practices at Isfahan, Iran, and the awarding of local-hire and ISS-sponsored contracts there.
In a disparate treatment case a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. The classic method of making this initial showing is to establish (i) that the plaintiff belongs to the protected class, (ii) that he applied and was qualified for a position for which the employer was seeking applicants, (iii) that, despite his qualifications, he was rejected, and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff's qualifications. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Such proofs, however, are not the only method of establishing a prima facie case; the facts will vary, and in different situations different facts will provide *484 a basis for a plaintiff's prima facie case, e. g., Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). The Third Circuit has not been overly demanding in the proof required for a prima facie case. Usually all that is required is some showing that plaintiff was treated differently from similarly situated individuals of a different racial or sex group, Jackson v. U. S. Steel Corp., 624 F.2d 436 (3d Cir. 1980).
In the present case, Bryant and Lillibridge are members of a protected class-women. The fact that the alleged discrimination affects only a portion of the class, i. e., a subclass consisting of married women, is immaterial. Jurinko v. Edwin L. Wiegand Company, 477 F.2d 1038 (3d Cir. 1973), vacated and remanded on other grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214; Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543. Having the same professional qualifications as married men, they received the less desirable local-hire contracts, and the married men (with the exception referred to in n. 2) received the more desirable ISS-sponsored contracts.
The statistics show that out of 98 local-hire contracts awarded at the American School, 97 were awarded to married women and only 1 to a married man, that single exception arising from a unique situation, as explained above. A bare statistic such as that may not alone establish a prima facie case without the further showing that there were similarly situated male applicants for the positions held by plaintiffs, e. g., EEOC v. Greyhound Lines, Inc., 635 F.2d 188 (3d Cir. 1980); Miller v. Weber, 577 F.2d 75 (8th Cir. 1978). However, in the circumstances of this case, these figures may be considered as one element of a prima facie case, e. g., Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679. This statistical data is buttressed by other factors, as was the case in Wetzel, supra.
Married women hired locally were not provided with complete and accurate information concerning ISS's policies and practices with respect to benefits and the granting or withholding of ISS-sponsored contracts.
ISS gave confused and conflicting reasons for granting ISS-sponsored contracts to some persons and withholding such contracts from others: (i) ISS's Superintendent, Mr. Wire, informed Lillibridge, and ISS's New Jersey attorneys informed the Newark office of EEOC, that the kind of contract a person received depended on the place where the person was hired, i. e., persons hired in the United States received ISS-sponsored contracts; persons hired in Iran received local-hire contracts. (The facts did not sustain that explanation.) (ii) After the first explanation proved inadequate under scrutiny, ISS suggested that the distinction was based upon the employee's primary reason for being in Iran. Persons whose primary purpose for being in Iran was to work at the American School were awarded ISS-sponsored contracts; persons who had another primary purpose for being in Iran were awarded local-hire contracts. (iii) ISS contended at trial that the Iranian government required that it award employment contracts so that extra benefits such as those contained in the ISS-sponsored contracts were not paid both to a husband and a wife by employers having cost-plus agreements with the Iranian government and, therefore, an ISS-sponsored contract could not be awarded to a person whose spouse was employed in Iran by a corporation which paid its employees benefits comparable to the extra benefits under an ISS-sponsored contract. (iv) ISS's final articulation of its policy is a variant of the primary purpose explanation. According to ISS, ISS-sponsored contracts were awarded on the basis of whether a person was sponsored to the Iranian government by ISS or some other entity, the employer responsible for bringing the employee to, or retaining the employee in, Iran being the sponsor of the employee. ISS-sponsored contracts were given to teachers whom ISS brought to, or retained *485 in, Iran. Plaintiffs professed never to have heard of such a concept while they were in ISS's employ, and I am confident that they are telling the truth in this regard. Although the term "ISS-sponsored" appeared in ISS's personnel policies statements, their policies statements were never made available to plaintiffs. The term "ISS-sponsored contract" first appeared in the 1978-79 personnel policies statement, the contracts with the superior benefits having been called "expatriate contracts" (in the 1975-76 personnel policies statement) and "foreign contracts" (in the 1976-77 and 1977-78 personnel policies statements).[4]
It cannot be ascertained from reading the personnel policies statements whether the term "ISS-sponsored", as used in the policies statements, means the same thing as the term "ISS-sponsored" means when used by ISS in its most recent characterization of its policies for awarding contracts in Iran. It appears to me that the articulation of policies for awarding ISS-sponsored contracts in the 1975-76 and 1976-77 personnel policies statements was different from the articulation of those policies in the 1977-78 and 1978-79 personnel policies statements. In the former two school years such contracts were to be awarded only to "heads of households" (suggestive of married men), while in the latter two school years the heads of households requirement was omitted. This parallels the refinements in the language relating to payments of the pay differential to married couples.[5]
The language changes in the personnel policies statements concerning the kinds of contracts awarded represented an effort on ISS's part to eliminate any suggestion that they were engaging in policies which discriminated on the basis of sex without changing in any way what ISS was actually doing.
I find, therefore, that these facts establish a prima facie case of disparate treatment.
Turning to the question whether plaintiffs have established a prima facie case of disparate impact, plaintiffs must demonstrate that a protected group (married women, in this case) suffered substantially disproportionate effects from a seemingly neutral policy, EEOC v. Greyhound Lines, Inc., supra.
The neutral local hiring policy, as found in Part D of the Findings of Fact, was the awarding of ISS-sponsored contracts to teachers whose primary purpose for being in Iran was to teach at the American School. Implementing the policy, ISS did not explain it to married women applicants but made the determination that if a teacher's spouse worked for Bell Helicopter, Grumman, or perhaps some other American company in Iran, the primary purpose of the teacher for being in Iran was to accompany *486 the spouse and not to teach at the American School, thus requiring that the teacher be awarded a local-hire contract. This facially neutral policy resulted in the award of 97 local-hire contracts to married women and only one to a married man.
ISS argues that these statistics cannot support a prima facie showing of disparate impact and that the complete statistical data affirmatively demonstrates that ISS's policies have not had a disparate impact. To be meaningful, ISS argues, statistical data must compare two pools-the pool consisting of the males and females (or married males and married females) who received the desired contracts as compared with the pool consisting of the qualified males and females (or married males and married females) who were candidates for the desired contracts. As noted in Part E of the Findings of Fact, a comparison of the various pools applicable to ISS's over-all allocation of ISS-sponsored contracts (including those awarded from Princeton and those awarded locally in Iran) discloses that women received the expected number of the more favorable contracts.
ISS maintains that it is impossible to make a statistical showing of adverse impact if one looks only at ISS's hiring effected in Iran. Figures for one of the pools are available, namely the number of married men and the number of married women who received local-hire contracts. Figures for the applicant pool, however, are unavailable. There is no way of knowing the number of married men and married women who applied locally for teaching positions, all records providing such information having been lost in the sudden departure from Iran.
There is support for ISS's position that the statistics alone in this case cannot support a prima facie showing of disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). In EEOC v. Greyhound Lines, Inc., supra, the Court, in deciding in favor of the employer, noted that "EEOC produced no evidence that Greyhound's no-beard policy selects applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants". 635 F.2d at 188.
However, statistics comparing recipient and applicant pools are not the only method of establishing a prima facie case when adverse impact is alleged. In Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977), the Court stated, "There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of characteristics of actual applicants." In Yuhas v. Libbey-Owens-Ford Co., 562 F.2d 496 (7th Cir. 1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978), the bare fact that a rule against hiring a spouse of a current employee disqualified 71 women job applicants as against the disqualification of only three men applicants was held sufficient to create a prima facie showing of disparate impact, although the Court ultimately concluded that the rule was job-related and therefore not a violation of Title VII.
In the present case there exist not only the actual figures showing the disproportionate number of local-hire contracts received by married women, but there also exists the fact that the records of local applications are unavailable and the various circumstances which led me to conclude that plaintiffs have established a prima facie case of disparate treatment. In the light of all these circumstances, I conclude that plaintiffs have established a prima facie case of disparate impact.
VI. Findings and Conclusions as to Non-discriminatory Reasons for Award of Local-Hire Contracts to Plaintiffs and as to Job-Relatedness of ISS's Policies.
Plaintiffs having established a prima facie case of disparate treatment, it becomes ISS's burden to articulate some legitimate, non-discriminatory reasons for not awarding ISS-sponsored contracts to plaintiffs, Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Board of Trustees v. Sweeney, 439 *487 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). Further, plaintiffs having established a prima facie case of disparate impact, ISS must meet the burden of showing that its practices have a manifest relationship to the employment in question, Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. at 2726; Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854.
ISS advances a number of very persuasive reasons why it awarded ISS-sponsored contracts only to teachers whose primary purpose for being in Iran was to teach at the American School and why it awarded local-hire contracts to plaintiffs. First, the extra benefits were needed to induce people not otherwise intending to travel to, or remain in, Iran to go or stay there. If a person is hired specifically to live and work in a relatively unattractive overseas location, he or she is entitled to additional benefits, and without such benefits it would be impossible to recruit qualified personnel.
On the other hand, persons who were in Iran for reasons other than teaching at the American School did not have to be enticed there or compensated for the expenses incurred to travel to Iran. ISS points to comparable compensation differentials paid by governmental agencies in similar situations for similar purposes (Exhibits D3, D4, D5, D8, D11).
This is a logical distinction, ISS contends, and is not based on sex. The reason for the disproportionate number of local-hire contracts going to married women, ISS explains, is that the pool of persons in Iran interested in working for the American School consisted almost entirely of spouses of Bell Helicopter and Grumman employees, nearly 100% of whom were men.
The second reason for ISS awarding ISS-sponsored and local-hire contracts as it did was the requirement of the Iranian government that benefits not be duplicated. ISS witnesses testified that the Iranian officials with whom they dealt monitored the contract between ISS and the government of Iran and sought to insure that an ISS employee did not receive extra benefits which he or his spouse were already receiving through another employer.
The third reason for ISS's policy is that if people were in Iran primarily to teach and were on ISS-sponsored contracts, ISS had a better hold on them and greater assurance that they would stay through the school year.
I conclude that these reasons, individually and in the aggregate, constituted legitimate, non-discriminatory reasons for awarding ISS-sponsored contracts only to persons whose primary purpose for being in Iran was to teach at the American School, and I also conclude that this basis for allocating ISS-sponsored and local-hire contracts had a manifest relationship to the employment in question. The fact that the sex composition of the pool of local applicants for teaching positions resulted in a disproportionate number of local-hire contracts going to married women does not alter this conclusion, Miller v. Weber, supra; Yuhas v. Libbey-Owens-Ford Co., supra.
However, this is not the end of the inquiry in this case. I find that ISS's method of implementing a valid policy for awarding contracts has had the effect of discriminating against plaintiffs on the basis of their sex, and that ISS has not articulated any reason, much less a legitimate non-discriminatory reason, for this method. As was described above, ISS failed to describe or disclose the basis of its policy to persons hired locally. Further, ISS ascertained the primary purpose for a person being in Iran by the simple expedient of determining if that person's spouse worked in Iran for Bell Helicopter, Grumman, or perhaps another American company. If the teacher's spouse did work for an American company in Iran, ISS assumed that the teacher's primary purpose for being in Iran was not to teach at the American School but to accompany the spouse. ISS's failure to inform its teachers or local applicants for teaching positions of the primary purpose test, prevented such a teacher from establishing her qualifications for an ISS-sponsored contract in those situations when her primary purpose for being in Iran was, in fact, to teach at the American School. These practices *488 necessarily had a disparate impact generally upon married women applying locally for teaching positions at the American School because at no time were they given the opportunity to establish their actual primary purpose for being in Iran or to notify ISS of any change in their purpose for being in Iran. Further, these practices resulted in disparate treatment of Lillibridge and Bryant during a part of the time they were teaching at the American School.
I find that from April, 1977 until her employment by ISS terminated, Lillibridge's primary purpose for being in Iran was to teach at the American School. In April, 1977 Lillibridge's spouse's contract with Bell Helicopter terminated and he signed up for another year in order that Lillibridge could continue teaching. Thus, his and her primary purpose for being in Iran was to enable Lillibridge to teach at the American School.
I further find that from March to June, 1977 Bryant's primary purpose for being in Iran was to teach at the American School. In March, 1977 she and her husband decided to seek a divorce, and she stayed in Iran only to complete her year with ISS. From that point on her primary purpose for being in Iran was not to be with her husband but to teach at the American School.
Neither Lillibridge nor Bryant had been informed of ISS's policy for awarding contracts, and, in fact, they had been misinformed about those policies, having been told that ISS-sponsored contracts were awarded to persons hired in the United States and that local-hire contracts were awarded to persons hired in Iran. Further, ISS made its determination of primary purpose on the basis of a sex-tainted stereotype dealing with the primary purposes of married women. By reason of ISS's practices neither plaintiff was aware that as of March or April, 1977 she was entitled to an ISS-sponsored contract, and ISS's tainted basis of judgment prevented ISS from making an appropriate change in benefits.
Thus, the method by which ISS implemented its valid contract awarding policy discriminated on the basis of sex.
It was clear from the evidence that ISS knew that Bell Helicopter's and Grumman's employees in Iran were almost all men, and that the spouses upon whom ISS would draw locally to fill vacant positions at the American School were virtually all women. It is also clear from the evidence that ISS proceeded with typical stereotypes about women in mind when it decided upon the method by which it would implement its contract-awarding policy. Its earlier personnel policies statements show that ISS's thinking was afflicted with the kind of typical sex stereotype which the United States Supreme Court has condemned, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), and which so often leads to discriminatory action. ISS-sponsored contracts were limited to "heads of households" during the 1975-76 and 1976-77 school years. That "heads of households" originally meant husbands in the case of married couples is suggested by the 1976-77 addition to the provisions concerning pay differentials for married couples. Whereas prior to that year the extra pay was awarded to the "head of the household", in 1976-77 the provision was changed by adding the statement that "The head of the household may be either spouse." (See n. 5.)
Clearly indicative of reliance upon sexual stereotypes denigrating the role of women was ISS's assumption that if a female teacher's husband worked for Bell Helicopter or Grumman her primary purpose for being in Iran was not to teach at the American School but, rather, to be with her husband. As I have previously found, this assumption was wrong in the case of Bryant during and after March, 1977, and it was wrong in the case of Lillibridge during and after April, 1977.
ISS has denied that it failed to inform its locally hired married teachers about its policies for awarding contracts. Their denial is not persuasive. ISS was unable to give a consistent articulation of its policies even to itself prior to the concluding phases of this litigation. I find that it did not inform its locally hired teachers of its policies and, as previously stated, misinformed them about these policies.
*489 ISS has not articulated any legitimate, non-discriminatory reasons for failing to advise its locally hired married teachers of its contract allocation policies or for determining such person's primary reason for being in Iran in the manner previously described. Further, neither the failure to inform nor the method of determining primary purpose for being in Iran had a manifest relationship to the employment in question. ISS has, therefore, failed to counter plaintiff's prima facie case of disparate treatment and disparate impact arising from the method by which it implemented its primary purpose policy in awarding contracts to local applicants for teaching positions.
VII. Establishment of Disparate Treatment and Impact
A. As to Disparate Treatment
Not only has ISS failed to articulate reasons for its method of determining the primary purpose of locally hired married teachers for being in Iran, its reason for denying Bryant and Lillibridge ISS-sponsored contracts during and after March, 1977 and April, 1977, respectively, was pretextual. The evidence establishes that during those periods plaintiffs' primary purpose was to teach at the American School and that the reason that they were not given such contracts at that time was not the absence of a requisite primary purpose but, rather, ISS's tainted method of deciding entitlement to ISS-sponsored contracts.
The situation is analogous to that in Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980). There the Court noted that "[c]entral to the trial court's ultimate finding of disparate treatment was the difference in counseling received by male members of the Physical Education Department and by plaintiff. Although plaintiff had not been told of the necessity to have a master's degree either at the time of her initial employment at the college or by her department chairman, Dean, or President when she was being considered for promotion and tenure, male candidates for promotion and tenure were so advised", at 539. In the present case plaintiffs, married women hired locally, were not told of the primary purpose policy, while locally hired married men (with the one exception referred to in the Findings of Fact) were given ISS-sponsored contracts. As explained above, plaintiffs were automatically given, and continued under, local-hire contracts by the utilization of procedures which were unnecessary to the accomplishment of the legitimate ends which ISS sought to achieve.
To establish disparate treatment, a showing of intentional discrimination must be made-a showing that ISS's practices were engaged in deliberately and not accidentally, Kober v. Westinghouse Electric Corp., 480 F.2d 240, 246 (3d Cir. 1973).
I find that the failure to inform persons hired locally of ISS's policies and utilization of a sex-tainted criterion to determine primary purpose were purposeful and were done knowing that the persons affected were all married women. The failure to include the attachments to the plaintiffs' employment contracts, the evasiveness and misinformation which characterized ISS's oral explanations, the statistics as to the allocation of local-hire contracts, and the shifting rationalizations used by ISS to justify its policies and procedures negate any contention that its conduct was inadvertent. This evidence, all of which is discussed in more detail in earlier sections of this opinion, establishes the requisite intent, Kunda v. Muhlenberg College, supra, at 544-545.
B. As to Disparate Impact
Were it to be concluded that ISS had overcome plaintiffs' prima facie case of disparate impact, I would find that plaintiffs have shown that ISS could have provided locally hired married women full information about the two types of contracts and how ISS determined who was entitled to the ISS-sponsored contracts. I would also find that there were ways other than referring to a husband's employment in which ISS could have determined the primary *490 purpose of a female married teacher for being in Iran. This could have been done without in any way obstructing ISS's policy of awarding ISS-sponsored contracts only to persons whose primary purpose for being in Iran was to teach at the American School. Thus, plaintiffs have shown that other devices without a discriminatory effect would serve ISS's legitimate interests, Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. at 2726.[6] Thus, disparate impact has been established.
C. Injury
Finally, ISS's practices caused injury to plaintiffs by depriving them of extra benefits during the period when their primary purpose for being in Iran was to teach at the American School. Had they known ISS's basis for awarding extra benefits, and had ISS not employed a method of determining primary purpose which resulted in an erroneous determination with respect to plaintiffs, plaintiffs could have applied for and properly should have received the extra benefits starting in March and April, 1977. Thus, all the elements for proof of disparate treatment and disparate impact have been established by the evidence.
VIII. "Act of State" and "Foreign Compulsion" Defenses
ISS asserts that its policies and practices in awarding contracts to teachers at the American School in Isfahan were immunized from attack on Title VII grounds by the act of state doctrine and by the defense of foreign compulsion. The act of state doctrine precludes inquiry into the validity of a foreign sovereign's act and requires American courts to respect private claims based on the contention that the damaging act of another nation violates American law. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1292-1293 (3d Cir. 1979). The foreign compulsion defense, developed in the context of antitrust litigation, shields from liability the acts of parties carried out in obedience to the mandate of a foreign government, Interamerican Refining Corp. v. Texaco Maracaibo, Inc., 307 F.Supp. 1291, 1296 (D.Del.1970).
It is ISS's contention that the conduct which lies at the heart of plaintiffs' claims was mandated by Iranian authorities, that the insistence by these authorities that ISS not pay benefits to teachers which would duplicate benefits being received by the teachers' spouses constituted an act of state and the basis of the defense of foreign compulsion.
Long before it entered into a contractual relationship with the Iranian government, ISS allocated its ISS-sponsored contracts and its local-hire contracts on the basis of the primary purpose which motivated its employees to come to or remain in Iran. Continuation of this policy after ISS began contracting with the Iranian government instead of Bell Helicopter insured compliance with the government's requirement that there be no double payments of benefits to spouses working in Iran for companies under contract with the Iranian government. Inasmuch as I have concluded that ISS's policy in this regard did not violate Title VII, there is no need to decide whether this requirement of the Iranian authorities who negotiated the contract with ISS rose to the level of an act of state.
It was not the policy against payment of double benefits or the primary purpose basis for awarding contracts which I found violated Title VII; I found that ISS violated Title VII by failing to advise persons hired locally of its basis for awarding contracts and by determining an employee's primary purpose for being or remaining in Iran by means of criteria which had the effect of discriminating against married women. There was nothing in Iranian law and there were no requirements of the Iranian authorities which compelled ISS to conceal its policies from persons hired locally, *491 or to base its determination of primary purpose on the employment status of its teachers' spouses. Those were actions and policies of ISS and neither reflected sovereign decisions of the Iranian government nor were compelled by the Iranian government. Thus those actions and policies are not protected by the act of state doctrine or the defense of foreign compulsion, Mannington Mills, Inc. v. Congoleum Corp., supra, at 1293; Timberlane Lbr. Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 608 (9th Cir. 1976).
IX. Damages
Reinstatement is not an available remedy in this case, and under the circumstances plaintiffs can be made whole for the injuries suffered on account of the unlawful employment discrimination by an award of damages. The awards will consist of the amounts they should have been paid under an ISS-sponsored contract during the periods when their primary purpose for being in Iran was to teach at the American School. Jurinko v. Edwin L. Wiegand Company, 477 F.2d 1038, 1046 (3d Cir. 1973). In the case of Bryant, that period will be March through June, 1977. In the case of Lillibridge, that period will be April, 1977 through June, 1978. They are not entitled to the extra benefits for prior periods because even if ISS had advised plaintiffs of their contract policies and even if ISS had used a proper method of determining their primary purpose for being in Iran plaintiffs would not have been entitled to an ISS-sponsored contract.
Bryant will be awarded damages as follows:
(i) An amount equal to 25% of her base pay for the months of March through June, 1977.
(ii) An amount equal to the value of housing which ISS would have provided a single teacher under an ISS-sponsored contract for the months of March through June, 1977. Since Bryant and her spouse decided to seek a divorce in March, 1977, it is reasonable to conclude that had Bryant had an ISS-sponsored contract she would have commenced living separately from her spouse at that time.
(iii) The sum of $600, representing $150 per month for personal transportation for the months of March through June, 1977.
Lillibridge will be awarded damages as follows:
(i) An amount equal to 25% of her base pay for the months of April through June, 1977 and for the 1977-78 school year.
(ii) The sum of $2250, representing $150 per month for personal transportation for the period from April 1, 1977 through June 30, 1978.
I am not awarding any amounts representing relocation costs both because Bryant and Lillibridge received equivalent payments under their husbands' employment contracts and also because, as I have previously found, their primary purpose for moving to Iran in the first instance was not to work at the American School and thus they were not entitled to such payments at that time. I am not awarding Lillibridge an amount representing a housing allowance, an annual allotment for shipment of goods, or a summer recess trip to and from the United States because Lillibridge, who was still married to her husband, received the equivalent of these items under his contract. She testified that in the summer of 1977 she returned to the United States and also travelled extensively abroad.
If the parties cannot agree upon the exact amount of the judgment to be entered in accordance with the above criteria, they should move to settle the form of judgment and furnish the Court with affidavits or other evidence supporting the amounts they believe to be appropriate.
If plaintiffs' attorneys contemplate applying for attorneys fees, pursuant to 42 U.S.C. § 2000e-5(k), I direct their attention to White v. New Hampshire Dept. of Employment Security, 629 F.2d 697 (1st Cir. 1980), which holds that attorneys fees under 42 U.S.C. § 1988 must be applied for within ten (10) days of the entry of judgment. This may not represent the rule in the *492 Third Circuit in either civil rights or employment discrimination cases, but until that question is resolved it might be well to meet the deadline specified in White.
Judgment in the appropriate amounts will be entered in favor of plaintiffs and against defendant without interest but with costs against defendant.
Appendix A
Chart No. 1
School Years
1977-78 1978-79
1. Number of persons holding ISS-sponsored contracts
in this year 142 162
2. Number of Females (% of Total) 71 82
(50%) (50%)
3. Number of Males (% of Total) 71 80
(50%) (50%)
4. Total Number of persons who had their dossiers
sent to the American School during the 12
month period prior to the school year. 216 270
5. Number of Females in No. 4 above (% of Total) 103 139
(48%) (51.5%)
6. Number of Males in No. 4 above (% of Total) 113 131
(52%) (49.5%)
7. Adverse Impact Analysis
Standard Deviation 6.0 6.4
Acceptable Range for Female Selections 67.7 ± 12.0 83.3 ± 12.8
Is there adverse impact in selection of females
for ISS-sponsored staff positions. No No
Appendix B
Chart No. 2
School Years
1976-77 1977-78 1978-79
1. Number of persons holding ISS-sponsored
contracts in this year 107 142 162
2. Number of Females (% of Total) 54 71 82
(50%) (50%) (51%)
3. Number of Males (% of Total) 53 71 80
(50%) (50%) (49%)
4. Total Number of persons who had
the opportunity to have dossiers
sent to the American School during
the 12 month period prior to the
school year. 405 410 514
*493
5. Number of Females in No. 4 above
(% of Total) 189 198 281
(47%) (48%) (55%)
6. Number of Males in No. 4 above
(% of Total) 216 212 233
(53%) (52%) (45%)
7. Adverse Impact Analysis
Standard Deviation 5.2 6.0 6.3
Acceptable Range for Female
Selections 49.9 ± 10.4 68.6 ± 12.0 88.6 ± 12.6
Is there adverse impact in selection
of females for ISS-sponsored
staff positions. No No No
Appendix C
Chart No. 3
School Years
1975-76 1976-77 1977-78 1978-79
1. Number of persons holding
ISS-sponsored contracts
in this year 65 107 142 162
2. Number of Females (% of
Total) 33 54 71 82
(50.7%) (50%) (50%) (51%)
3. Number of Males (% of
Total) 32 53 71 80
(49.3%) (50%) (50%) (49%)
4. Total Number of persons
who became newly active
candidates for
placement by ISS referral
service during
the 12 month period
prior to this school year. 452 404 606 300
5. Number of Females in No.
4 above (% of Total) 248 200 321 149
(55%) (50%) (51%) (50%)
6. Number of Males in No.
4 above (% of Total) 204 204 294 151
(45%) (50%) (49%) (50%)
*494
7. Adverse Impact Analysis
Standard Deviation 4.0 5.2 6.0 6.4
Acceptable Range for
Female Selections 35.7 ± 8.0 53.0 ± 10.4 75.2 ± 12.5 80.5 ± 12.8
Is there adverse impact
in selection of females
for ISS-sponsored staff
positions. No No No No
NOTES
[1] Although this opinion adopts the conceptual framework established by the parties, namely, that ISS utilized two kinds of contracts for its teaching staff, there was, in fact, a third kind of contract. This third kind was entered into with teaching couples. This contract closely resembled the ISS-sponsored contract, differing from it, however, in certain respects which will be discussed during the course of the opinion. The parties treated such a contract as an ISS-sponsored contract.
[2] One male, James Williams, held a local-hire contract for one year because he lacked qualification. He subsequently held ISS-sponsored contracts.
[3] § 106 of Pub.L. 92-129 provided:
Unless provided by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States. As used in this section, the term `facility or installation operated by the Department of Defense' shall include, but shall not be limited to, any officer's club, non-commissioned officers' club, post exchange, or commissary store.
[4] According to the 1975-76 and 1976-77 personnel policies statements expatriate contracts or foreign contracts (contracts with the superior benefits) were "offered to International Schools Services sponsored heads-of-household employed in the United States or an overseas location, including Iran. A one year contract is offered to locally hired teachers who are not ISS-sponsored." According to the 1977-78 and 1978-79 personnel policies statements (from which the heads-of-household criterion was dropped) the contracts with the superior benefits were "offered to International Schools Services sponsored staff employed in the United States or an overseas location, including Iran. A one-year contract is offered to teachers who are not ISS sponsored." See Exhibits P1, P3, P4 and P5. This information also was unavailable to plaintiffs until after discovery had been undertaken in this case.
[5] The manner in which ISS awarded the overseas pay differential to teaching couples is illustrative of the fact that during the applicable period ISS was groping for a policy and a rationale for allocation of benefits where married persons were involved. The pay differential in the case of married couples was described in the personnel policies statements in successive years as follows: 1975-76-"If a husband-wife team are members of the staff, only the head-of-the-household will receive this allowance." 1976-77-"If a husband-wife team are members of the staff only the head of the household will receive this allowance. The head of the household may be either spouse." 1977-78-"If a husband-wife team are members of the staff, the family unit will receive one monthly differential equal to 25% of the higher base pay of the team." 1978-79-"ISS sponsored staff members will receive a monthly differential equal to 25% of their base pay."
[6] The subjective primary purpose test is itself a difficult test to apply. There is no need, however, to determine whether some other criteria might better have accomplished ISS's purposes of avoiding double benefits and providing inducements to attract teachers to Iran without incurring the risk of discriminating against married women.
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553 N.W.2d 339 (1996)
STATE of Iowa, Appellee,
v.
Henry Earl DINKINS, Appellant.
No. 95-209.
Court of Appeals of Iowa.
June 27, 1996.
*340 Judith J. Morrell, Davenport, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, William E. Davis, County Attorney, and Hugh J. Pries, Assistant County Attorney, for appellee.
Considered by HABHAB, P.J., and CADY and STREIT, JJ.
CADY, Judge.
Henry Dinkins appeals the judgment and sentence for his conviction of possession with intent to deliver a controlled substance. We affirm Dinkins' conviction.
On September 16, 1994, Davenport police conducted a surveillance of a gas station for reported drug transactions. During the course of the surveillance, an officer observed a car being driven by Dinkins park at the station. Dinkins exited and removed the car's T-tops while his passenger, Mr. Holt, went into the station. The officer observed Holt return to the car with another man. After the three men engaged in a short conversation, Dinkins removed a plastic bag from the car's ashtray or dashboard. The officer next saw Dinkins reach in the bag, pinch an object from it and give the object to the man who had accompanied Holt. The man then handed something to Dinkins. The officer continued observing Dinkins and Holt. Soon he observed another man approach the car. Again he saw Dinkins retrieve the plastic bag, pinch an object out, and hand the object to the man. The man then gave Dinkins an unidentifiable object.
Dinkins and Holt were stopped by another police officer after they left the gas station. The officer found a plastic baggie and a wallet containing sixty-eight dollars under the passenger seat. Inside the baggie were seven individually wrapped rocks of crack cocaine, weighing two grams. Dinkins was charged with possession with intent to deliver a schedule II controlled substance.
At trial the observing officer stated he could not see what was exchanged during the two transactions. He further stated the two alleged buyers were not picked up or searched by the police.
Officer Collins, a narcotics officer, was asked by the prosecutor if the seven rocks of crack cocaine found in the plastic baggie were "consistent with someone using or dealing?" He answered "dealing" and explained, "[t]he people that we catch that are addicted, they get caught with one rock, certainly no more than three. You have seven rocks, it indicates a dealer." The State also asked Collins:
Q: And, Officer, if testimony indicated that only two items of evidentiary nature were taken from that car, State's Exhibit 1 and the money that was found, State's Exhibit 2, no smoking devices, nothing else to indicate that the crack was being used, would that indicate anything to you?
A: That they are dealing. A crack addict won't be caught without his pipe.
Dinkins' counsel also asked Collins, "how long would it take a [real addict] to use what's in State's Exhibit 1 there?" Collins replied, "Well, that's the problem with this quantity. A true addict couldn't have this. It would be like an alcoholic. If he had a bottle of whiskey it would be gone as soon as you can drink it."
The jury found Dinkins guilty as charged. He was sentenced to serve a term not to exceed ten years.
*341 Dinkins appeals. He argues the evidence was insufficient for the jury to find him guilty of possession with intent to deliver. Dinkins further argues his trial counsel was ineffective for failing to object to Collins' testimony. Dinkins maintains Collins expressed an opinion of his guilt on one of the essential elements of the crime, intent to deliver.
I. Opinion Testimony
To prevail on a claim of ineffective assistance of counsel, a defendant must prove counsel failed to perform an essential duty and the failure prejudiced the defendant. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We ordinarily preserve ineffective assistance claims made on direct appeal to permit a full development of the record in a postconviction proceeding. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). However, if the claim is based on the failure to object to the admission of certain evidence, we can ordinarily adjudicate the claim on direct appeal if the evidence was admissible. See id.
Expert testimony consisting of scientific, technical or other specialized knowledge is admissible at trial when it is helpful for the trier of fact to understand the evidence in the case or to determine a fact in issue, as long as its probative value is not substantially outweighed by the danger of unfair prejudice. State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994); Iowa R. Evid. 403, 702. Such opinions may generally be expressed even though they embrace "an ultimate issue to be decided by the trier of fact." Iowa R. Evid. 704. These basic precepts, however, do not permit a witness to express a direct opinion on the guilt or innocence of the defendant. State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994); Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663 (1942). Determining guilt or innocence is the exclusive function of the finder of fact; and consequently, is an improper subject of expert testimony. See State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975).
A fine line often exists between opinions which improperly express guilt or innocence in cases involving specific intent crimes and those which properly compare or characterize the defendant's conduct based on the facts of the case so as to assist the jury in understanding the evidence or to determine a fact in issue. State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982). This fine line is especially apparent in cases where the fighting issue is whether the accused possessed drugs with the intent to sell. Id. This is because the quality and quantity of drugs, the manner of packaging, the manner of secretion, the presence of drug paraphernalia, and many other circumstances may reflect whether drugs are possessed for personal use or for distribution. See State v. Odom, 116 N.J. 65, 560 A.2d 1198, 1202-04 (1989). However, the average juror is normally unaware of the significance of these circumstances, and may not appreciate how they would signify an intent to possess for personal use or for distribution. Id. Thus, the prosecutor frequently calls an expert to provide testimony to help the jury in understanding evidence of drug packaging, drug properties, and the like, and determining the element of intent.
Our prior cases have both approved and disapproved of expert testimony bearing on the issue of possessing drugs for personal use or for distribution. In Oppedal, the Iowa supreme court determined it was improper to permit a witness to give an opinion that "a quantity of drugs was possessed by the defendant with intent to deliver." Oppedal, 232 N.W.2d at 524. The court reasoned such an opinion was tantamount to an opinion as to the ultimate fact of defendant's guilt or innocence. Id. Similarly, in State v. Ogg the court concluded it was improper for a police officer to express his opinion that the quantity of drugs "defendant possessed" would be more than would be considered for personal use. State v. Ogg, 243 N.W.2d 620, 621 (Iowa 1976). In State v. Nimmo, the court again rejected opinion testimony regarding the intent with which the "defendant possessed" quantities of drugs. State v. Nimmo, 247 N.W.2d 228, 230 (Iowa 1976). See also State v. Vesey, 482 N.W.2d 165, 167 (Iowa App. 1991) (improper to express opinion that drugs were distributed from defendant's residence).
*342 On the other hand, an expert witness is permitted to express an opinion as to whether the facts of the case fit the profile of "a person who sells drugs." State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982). This type of opinion differs from the opinions expressed in Oppedal, Ogg, Nimmo, and Vesey because it does not specifically relate to the defendant. Instead, it is an opinion that the evidence in the case is consistent with selling drugs, and is properly admitted as a comparison for the jury, not an opinion of guilt. Id.
In this case, the testimony of Officer Collins did not constitute an opinion of guilt of the defendant or that the defendant possessed drugs with the intent to sell. Neither the questions asked of Collins or the answers given to those questions related specifically to Dinkins. They also did not imply the violation of a statute by the use of statutory language, or include so much evidence that it necessarily referred to the defendant. Instead, the questions were based only on the evidence bearing on the activities of drug dealers. Similarly, the answers given were based on the witness' experience and special knowledge. The opinions expressed nothing more than certain conduct and circumstances of the case were similar to conduct engaged in by typical drug dealers. See United States v. Young, 745 F.2d 733, 760-61 (2d Cir.1984). This type of opinion testimony was not objectionable.
We emphasize the manner in which the expert's opinion is expressed will often determine where the fine line between proper and improper opinion testimony will be drawn. The State may not ask whether an expert has an opinion or believes the defendant is guilty of the crime, or possessed drugs for sale as opposed to personal use. State v. Oppedal, 232 N.W.2d at 524. The State may properly ask a qualified expert, however, whether the particular facts of the case, stemming from the expert's field of expertise, would be characterized as drug dealing or drug consumption. See State v. Odom, 560 A.2d at 1207.
We conclude the opinion testimony of Officer Collins was admissible. Accordingly, we reject Dinkins' claim of ineffective assistance of counsel.
II. Sufficiency of Evidence
We review claims of insufficient evidence for errors at law. Iowa R.App. P. 4. A verdict of guilty is binding an appeal unless there is no substantial evidence in the record to support it, or it is clearly against the weight of the evidence. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id. In determining the sufficiency of evidence, we view the record in a light most favorable to the State. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). All evidence is considered, not simply the evidence supporting the verdict. Id.
The thrust of Dinkens' claim is there was insufficient evidence of his intent to deliver a controlled substance. He argues he possessed only a small amount of cocaine and cash when arrested, and did not possess any packaging materials. He also notes the surveillance team did not actually observe the transfer of drugs, nor stop the alleged buyers to verify the sale of drugs.
We find substantial evidence to support the conviction. Dinkins was observed in a known drug trafficking area engaging in conduct similar to a drug transaction. He was seen transferring small objects to individuals who had approached Dinkins. Upon arrest, Dinkins also possessed seven individually wrapped rocks of crack cocaine and sixty-eight dollars in cash. Additionally, the testimony of Officer Collins illustrates Dinkins' actions conformed to actions of typical drug dealers.
For the reasons expressed, we affirm the conviction.
AFFIRMED.
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535 U.S. 959
REEDERv.CITY OF PARIS ET AL.
No. 01-7925.
Supreme Court of the United States.
March 25, 2002.
1
C. A. 5th Cir. Certiorari denied.
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927 F.2d 132
59 USLW 2574, 1991 Copr.L.Dec. P 26,696,18 U.S.P.Q.2d 1041
James J. ANDRIEN, Appellant in No. 90-5622v.SOUTHERN OCEAN COUNTY CHAMBER OF COMMERCE; ManahawkinNewspapers, Inc.; William Sherry, t/a SurfPrinting, Appellees in No. 90-5622.James J. ANDRIEN, Appellant in No. 90-5623v.Joseph W. INMAN and Inman Realty, Appellee in No. 90-5623.
Nos. 90-5622, 90-5623.
United States Court of Appeals,Third Circuit.
Argued Jan. 14, 1991.Decided March 1, 1991.Rehearing and Rehearing In BancDenied April 3, 1991.
Donald C. Simpson (argued), Simpson & Simpson, P.C., Moorestown, N.J., for appellant.
Robert G. Shepherd (argued), Mathews, Woodbridge & Collins, Princeton, N.J., for Southern Ocean County Chamber of Commerce.
Gerard P. Scala, Hughes & Hendrix, West Trenton, N.J., for Manahawkin Newspapers, Inc.
Eric G. Daniel, Frank P. Cavallo, Jr., Slimm, Dash & Goldberg, Westmont, N.J., for Williams Sherry t/a Surf Printing.
Marc Spielberg, Barnegat Light, N.J., for Joseph Inman and Inman Realty.
Before STAPLETON, GREENBERG and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
1
The district court held that the plaintiff who assembled a series of maps and turned them over to a printing firm to prepare a composite was not the author for copyright purposes. Accepting the plaintiff's version of events for summary judgment purposes, we conclude that the record does not support depriving plaintiff of his status as author. Accordingly, we will reverse the summary judgment in favor of defendants and remand for further proceedings.
2
Plaintiff James Andrien was a real estate agent on Long Beach Island, New Jersey. In 1980, he received a copyright registration from the Copyright Office for a map of Long Beach Island. The certificate described a copyright for a compilation of pre-existing maps, street names, street lines and other information assembled and created from a personal survey of the island. Andrien engaged the A & H Company to print the map.
3
Andrien asserts that sometime after the original printing was exhausted, defendants distributed unauthorized copies of the map and infringed the copyright. He filed complaints in the district court seeking injunctive relief as well as damages for copyright infringement, unfair trade practices and unfair competition. Named as defendants were Southern Ocean County Chamber of Commerce, Joseph Inman and Inman Realty, Manahawkin Newspapers, Inc. and William Sherry, trading as Surf Printing, all of whom allegedly either distributed, prepared or printed the maps.
4
Andrien decided to prepare a map of the area when he found the sketch distributed by defendant Chamber of Commerce incomplete and difficult to read. He collected available maps of local taxing bodies and a divers' map locating shipwrecks in the area. In a personal survey Andrien noted civic landmarks, fishing sites and previously unlisted street names. He determined the scale to be used on the finished map by driving his automobile between intersecting streets and measuring the distance on the odometer.
5
The collection of maps that Andrien took to A & H Printers used varied scales and almost illegible street names. To prepare the new map for printing, A & H assigned Carolyn Haines to do the "art work." This included coordinating the scales, relettering the street names and adding designations for the diving sites as well as for local points of interest. Haines photographed the various maps to synchronize the scales and typed individual labels for the street names. After a large paste-up working map was completed, it was reduced to a commercially useable size and printed.
6
In his deposition Andrien testified that Haines performed these assignments at his direction, "with me at her elbow practically." Almost daily he spent about an hour at the print shop over a three week period.
7
The parties deposed Herbert Josephson, a representative of the A & H Printing Company. His testimony tended to cast some doubt that Andrien's contribution to the final product was as extensive as he asserted, but in considering the motion for summary judgment filed by defendants the district court properly accepted the plaintiff's version. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
8
The district court concluded that Andrien was not the author because, although he had closely supervised the project, "he did none of the actual layout [and] was not always present when Haines worked on the map." The judge believed that Andrien had not translated his idea into a fixed, tangible expression but that had been done by A & H Printing, "or more specifically, Carolyn Haines." The judge also rejected joint authorship, "I think since Andrien supplied information and ideas from which A & H and Haines created the map, Andrien cannot even claim to be a joint author with A & H Printing."
9
The court then addressed the question of whether the map was made as "work-for-hire" and perhaps deserving of copyright protection under that theory. The record, however, did not establish that Andrien was A & H's employer or that a written agreement existed, and therefore the map was not a work-for-hire. See 17 U.S.C. Sec. 101; Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989).
10
On appeal, Andrien contends that whether he is the author is the subject of a genuine factual dispute and therefore summary judgment was inappropriate. He does not challenge the district court's work-for-hire ruling.
11
As a general rule copyright protection is available for maps, 17 U.S.C. Sec. 102(a)(5), or a compilation of existing maps. 17 U.S.C. Sec. 103. See Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); United States v. Hamilton, 583 F.2d 448 (9th Cir.1978); Amsterdam v. Triangle Publications, Inc., 189 F.2d 104 (3d Cir.1951).1 See generally 1 M. Nimmer & D. Nimmer, Nimmer on Copyright Sec. 2.08[A] (1990). Accepting the copyright statute's application to the map under consideration, the parties present us with a narrow issue: the controversy over Andrien's status as an author.
12
Copyright is available only for the expression of a work of authorship, not for a mere idea. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1234 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987). Generally authorship is a factual question for the jury. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1086 (9th Cir.1989); Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 980 (9th Cir.1987).
13
A plaintiff's duly issued certificate of registration suffices as prima facie evidence of the copyright's validity. 17 U.S.C. Sec. 410(c); see Williams Electronics, Inc. v. Artic Int'l., Inc., 685 F.2d 870, 873 (3d Cir.1982). A defendant's burden of rebutting the presumption varies with the issues bearing on the validity of the copyright. See Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 668 (3d Cir.1990).
14
The Supreme Court has stated that "[a]s a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection." Community for Creative Non-Violence, 109 S.Ct. at 2171. The Copyright Act defines a work as "fixed" in a tangible medium of expression when "its embodiment in a copy ... by or under the authority of the author, is sufficiently permanent ... to permit it to be ... reproduced." 17 U.S.C. Sec. 101.
15
The critical phrase is "by or under the authority of the author." That statutory language and the Supreme Court's guidance produce a definition of an author as the party who actually creates the work, that is, the person who translates an idea into an expression that is embodied in a copy by himself or herself, or who authorizes another to embody the expression in a copy. The definition, however, has limits. When one authorizes embodiment, that process must be rote or mechanical transcription that does not require intellectual modification or highly technical enhancement such as occurred in M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.1990) (architectural drawings), Geshwind v. Garrick, 734 F.Supp. 644 (S.D.N.Y.1990) (computer animated film), and Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F.Supp. 1307 (E.D.Pa.1985) (computer program), aff'd, 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987).
16
Poets, essayists, novelists, and the like may have copyrights even if they do not run the printing presses or process the photographic plates necessary to fix the writings into book form. These writers are entitled to copyright protection even if they do not perform with their own hands the mechanical tasks of putting the material into the form distributed to the public.
17
There is a "fundamental distinction" between an "original work" of authorship and "the multitude of material objects in which it can be embodied." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 53, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5666. As the House Report explained:
18
"Thus, in the sense of the bill, a 'book' is not a work of authorship, but is a particular kind of 'copy.' Instead, the author may write a 'literary work,' which in turn can be embodied in a wide range of 'copies' and 'phonorecords,' including books, periodicals, computer punch cards, microfilm, tape recordings, and so forth."
19
Id.
20
The Copyright Act does not specifically define the relationship between writer and printer, but does address a somewhat analogous, albeit more ambiguous, situation. Some forms of sound recordings are protected under 17 U.S.C. Sec. 102(a)(7). According to the House Report, these recordings "are clearly within the scope of the 'writings of an author' capable of protection." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 56, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5669. The Report considered authorship to apply not only to the performer, but also to the producer responsible for setting up the recording session, processing the sounds and compiling and editing them to make a final sound recording. In some cases, however, the record producer's contribution could be so minimal that the performance is the only copyrightable element in the work.
21
In questioning the House Report, Professor Nimmer remarks that the solitary act of "setting up the recording session" is "ill-based" for claiming authorship on behalf of the record producer. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright Sec. 2.10[A][b] at 2-146 (1990). Indeed, "this is no more an act of 'authorship' than is the act of one who makes available to a writer a room, a stenographer, a typewriter, and paper." Id.
22
Mechanically transposing an author's expressions or compilations is somewhat analogous to producing a sound recording, although the latter process may require more technical choice and artistic discretion. Significant to the case at hand is Nimmer's comment emphasizing that a party can be considered an author when his or her expression of an idea is transposed by mechanical or rote transcription into tangible form under the authority of the party.
23
Andrien testified that he expressly directed the copy's preparation in specific detail. His compilation needed only simple transcription to achieve final tangible form. From his description, Carolyn Haines acted as his amanuensis just as does a stenographer in typing material dictated by another person.
24
On this record none of Haines' activities in any way intellectually modified or technically enhanced the concept articulated by Andrien other than to arrange it in a form that could be photographed as part of the embodiment process. Moreover, when A & H employees printed the maps they did not change the substance of Andrien's original expression.
25
Based on the statute, its legislative history, caselaw and academic commentary, we conclude that the activities to which Andrien testified qualified him as an author within the copyright statute's requirements. In the present procedural posture of this case, it was therefore inappropriate to enter summary judgment.
26
Because the case must be remanded for further proceedings, we point out that if the evidence establishes that Haines was more deeply involved in the preparation of the map than Andrien's testimony indicates, she may perhaps be a joint author. See 17 U.S.C. Sec. 201(a). The 1976 Act defines a joint work as one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. Sec. 101. At this point we need not decide whether each author of a joint work must make an independently copyrightable contribution. See generally 1 M. Nimmer & D. Nimmer, Nimmer on Copyright Sec. 6.07 at 6-18.2 (joint authors need not make independently copyrightable contributions); see also Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1497 (D.C.Cir.1988) (dicta), aff'd on other grounds, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). But see Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990) (joint authorship requires each author to make independently copyrightable contribution).
27
A finding of joint authorship would not, in itself, result in dismissal of Andrien's claim. As a co-owner, he would still be entitled to claim a copyright in the individual whole of protected work. M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990).
28
The judgment of the district court will be reversed and the case will be remanded for further proceedings consistent with this opinion.
1
Professor Nimmer questions whether the direct observation rule articulated in Amsterdam survives the 1976 Act. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright Sec. 2.08[A][b] at 2-80 (1990). We need not decide that point because the map under consideration here meets the more stringent Amsterdam criteria
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561 F.2d 135
UNITED STATES of America, Appellee,v.Louis MARTIN, Appellant.
No. 77-1111.
United States Court of Appeals,Eighth Circuit.
Submitted June 13, 1977.Decided Aug. 22, 1977.
Henry L. Jones, Little Rock, Ark., for appellant; Wiley A. Branton, Washington, D. C., on brief.
Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dillahunty, U. S. Atty., and Sandra W. Cherry, Asst. U. S. Atty., Little Rock, Ark., on brief.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
STEPHENSON, Circuit Judge.
1
Appellant Louis Martin was charged on November 4, 1975, in a two-count indictment in violation of 18 U.S.C. § 152. The first count charged Martin with making a false oath and account in relation to a bankruptcy proceeding, in that he filed a schedule representing that he and his wife had $50.00 on hand, wherein he fraudulently failed to disclose other assets of money and cash totalling $565.12. The second count charged Martin with fraudulently transferring and concealing assets in the amount of $2,060.12 in contemplation of bankruptcy. On May 4, 1976, Martin's first trial was terminated when the district court,1 pursuant to Martin's motion, declared a mistrial. On November 29, 1976, Martin's second trial began and on December 1, 1976, the jury returned a verdict of guilty on both counts. The district court2 sentenced Martin to 18 months' imprisonment on the first count and 2 years' supervised probation on the second count. In this appeal Martin alleges the following errors: (1) the district court erred in denying Martin's motion to dismiss the indictment because (a) the Double Jeopardy Clause barred Martin's retrial, (b) the government's conduct before the grand jury required dismissal, and (c) the government's conduct following the grand jury required dismissal; (2) the district court erred in failing to grant Martin's motion in limine; (3) the district court prejudiced the jury by the manner in which it questioned Martin's expert witness; (4) the district court erred in refusing to give one of Martin's requested instructions and in giving one of the government's requested instructions. We are persuaded that under the circumstances of this case, the Double Jeopardy Clause of the Fifth Amendment3 barred Martin's retrial. Accordingly, we reverse.Background
2
On December 16, 1974, Martin, a lawyer employed by Pulaski County, Arkansas, and his wife, employed by the state of Arkansas, filed their voluntary petition in bankruptcy in the Eastern District of Arkansas. The petition contained a schedule of debts which listed eight creditors and a total indebtedness of $19,447.62. Of the total indebtedness, $18,382.61 represented debts that Martin and his wife owed to six student loan creditors.
3
Before evidence was presented in his first trial, Martin filed a motion in limine requesting that the district court prohibit any mention or reference to student loans and exclude any documents referring to student loans or that reference to student loans be excised. Martin attached as exhibits to his motion in limine 22 Arkansas Gazette newspaper articles illustrating the publicity which accompanied his attempt to discharge the student loan debts. In addition to the newspaper articles, affidavits by Martin and his wife were filed attesting to obscene and racial remarks directed at the Martins as a result of their bankruptcy petition. Martin's counsel stated to the court during the hearing on the motion that the defense would agree to stipulate "to the amount of money in certain accounts at a certain time, when that money went to the account and when it left the account." The purpose of this stipulation was to avoid the mentioning of student loans.
4
Following a lengthy hearing, the district court granted Martin's motion in limine. While ruling on the motion, the court stated to the government's attorney:
5
You cannot use student loans. And I admonish you not to unduly use loans and lending institutions. * * * Talk about debts, or use other words, because the Court is sincere in believing that there has been an undue amount of publicity to the extent that Louis Martin will be prejudiced if student loans or an undue emphasis on loan and lending institutions is used to the extent that would infer indirectly what I am telling you not to do directly.
6
A short time later the district court clarified his ruling by stating to the government's attorney:
7
I am going to back up at this time and clarify the ruling by saying that you cannot name the specific creditors. * * * I have got to rule that you cannot name the specific creditors.
8
* * * So, when I ruled, and to clarify my ruling further, I will say that you cannot go into it, name the creditors, and go beyond that into the making of the loans * * *.
9
In addition to his motion in limine, Martin asked the district court at this time to prohibit the government's attorney from reading Martin's grand jury testimony to the jury as substantive evidence. Appellant argued that most of the statements contained in Martin's grand jury testimony were irrelevant and prejudicial. The government's attorney, however, assured the court that the irrelevant statements contained in the grand jury testimony had been excluded. The district court denied Martin's request but cautioned the government that the use of Martin's grand jury testimony must not violate any of the court's prior rulings. In addition, the court indicated that Martin's objection to the use of the grand jury testimony would be treated as a continuing objection.
10
Early in the trial, after two witnesses had testified for the government, the government's attorney read a substantial portion of Martin's grand jury testimony to the jury. As a result the appellant subsequently moved for a mistrial. The district court, in granting the mistrial, stated:
11
I feel that error has been made and it will be reversed on appeal, if there is a conviction. And so the Court feels that there is no alternative other than to declare a mistrial at this point.
12
Between the first and second trials, Martin filed a motion to dismiss the indictment, contending in part that the United States Attorney had engaged in an ex parte conversation with Judge Shell on the day of the mistrial declaration. In anticipation of being called as a witness at the hearing on the motion, Judge Shell recused himself. The case was then assigned to Judge Williams.
13
In addition to alleging the ex parte conversation, Martin contended that the Double Jeopardy Clause barred a second trial and that the government's conduct before the grand jury required a dismissal of the indictment. The appellant also renewed all motions filed in the first trial including the motion in limine. After a hearing was held, Judge Williams denied Martin's motion to dismiss the indictment and the motion in limine.4
14
The second trial began on November 29, 1976, and Martin again renewed his motion in limine. The district court denied the motion and allowed the evidence concerning student loans. Martin was subsequently found guilty by the jury on both counts of the indictment.
15
Martin raises numerous issues in this appeal. In light of the total circumstances of the case, we need only discuss his Double Jeopardy claim.
Double Jeopardy
16
The dispositive question on this appeal is whether the Double Jeopardy Clause was violated by a retrial of Martin after the first trial ended in a mistrial granted at Martin's request.
17
The Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970). The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
18
In analyzing the question of whether the Double Jeopardy Clause bars a retrial of a defendant after a mistrial declaration, the Supreme Court has distinguished cases where mistrials are declared sua sponte by the court and cases where mistrials are granted at the defendant's request or with his consent. In the former, the defendant is precluded from deciding whether or not to take the case from the jury a decision in which the defendant has a significant interest. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. Because of the defendant's preclusion in this important decision, the Double Jeopardy inquiry focuses upon the "manifest necessity" for the mistrial. See United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 480-81, 91 S.Ct. 547; United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824).
19
Different considerations obtain when a mistrial is declared at the defendant's request. United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. 1075. The Double Jeopardy Clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Lee v. United States, --- U.S. ----, ----, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. The Supreme Court has recognized, however, limited circumstances where a defendant's mistrial request does not remove the Double Jeopardy bar. For example, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars retrials where the underlying error is "motivated by bad faith or undertaken to harass or prejudice" the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1082. Thus, where "prosecutorial overreaching" is present, United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, the interests protected by the Double Jeopardy Clause outweigh society's interest in conducting a second trial ending in acquittal or conviction. United States v. Kessler, 530 F.2d 1246, 1255-56 (5th Cir. 1976). See United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976).
20
Our inquiry, therefore, must center upon the prosecutor's conduct prior to the mistrial in order to determine if there was prosecutorial overreaching. Although mere negligence by the prosecutor is not the type of overreaching contemplated by Dinitz, if the prosecutorial error is motivated by bad faith or undertaken to harass or prejudice the defendant, then prosecutorial overreaching will be found. Lee v. United States, supra, --- U.S. at ----, 97 S.Ct. 2141. See United States v. DiSilvio, 520 F.2d 247, 249-50 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975).
21
Appellant's major contention of prosecutorial overreaching is found in the reading of Martin's grand jury testimony to the jury. Although Martin does not contend the government read the grand jury testimony to intentionally provoke a mistrial request, he does allege that the government was grossly negligent in so doing.
22
Our review of the record convinces us that the prosecutor's conduct in reading the grand jury transcript was more than mere prosecutorial negligence. The following excerpts are illustrative of the irrelevant and highly prejudicial material which was read to the trial jury by the government's attorney:
23
Q. (prosecutor) Well, I am not going to give your attorney a dissertation of the federal laws. You can simply advise your attorney the Grand Jury is charged with an investigation of all the federal laws of the United States of America. I don't know what the Grand Jury might determine after hearing your statement, but to tell us to pinpoint this or that I am not at liberty to do so.
24
When they are empaneled, the Court hands to them the entire federal law, the Penal Code.
25
Q. You say this is similar to Watergate mentality?
26
Q. Well, if it turns out to be, Mr. Martin, you engaged in activities similar to Watergate activities, would it not be proper for the Grand Jury to say you should be charged like anybody else?
27
Q. Some people feel that Watergate investigations are good.
28
Q. Mr. Martin, anything wrong with answering?
29
Q. (grand juror) You are saying you could have lied on the petition?
30
Q. (prosecutor) You only took five hundred but had a thousand coming? You have filed a lot of bankruptcy petitions?
31
Q. (grand juror) If you filled it out, it looks like you would find out how much money you had. You would check at Worthen Bank, look in your billfold and find out how much you had. You wouldn't happen to overlook five hundred dollars.
32
Q. (prosecutor) We are not talking about fifty cents; seventy-five cents.
33
(grand juror) I don't know why he has to hesitate.
34
(grand juror) You know whether you lied on the form or not.
35
Q. (grand juror) Wait a minute. You are not going to tell us you had a thousand dollars cash and you don't know what you did with it?
36
Q. This five hundred dollars, you are not going to tell me you cashed a check for five hundred dollars and you don't know what you did with it? Don't tell us that.
37
Q. You come up with an answer for that because I am really mad at you, telling us you had cashed a check for five hundred dollars and you don't know what you did with it.
38
Q. (prosecutor) You do know how to do one of these things?
39
A. Just in doing that one. I haven't done any since or before.
40
Q. (prosecutor) You did such a good job on this one.
41
Q. (grand juror) The problem is getting a thousand dollars within a two-week period before declaring bankruptcy and cashing checks, is kind of inconceivable you would put down fifty dollars on the bankruptcy petition.
42
Q. (grand juror) What was the date on that?
43
(prosecutor) November 14, 1974.
44
Q. (grand juror) Four weeks before filing for bankruptcy?
45
Q. (grand juror) The people you owe were at your mercy to get their money back until like your bankruptcy petition discharged them, but you don't want to say
46
A. Legally discharged, but normally what happens we would renegotiate a note.
47
Q. (prosecutor) They may or may not be discharged, Mr. Martin. You want to think about that a day or two?
48
It is readily apparent that improper and prejudicial remarks made by grand jurors were read to the trial jury. In addition improper and prejudicial remarks made by the prosecutors were read to the jury. The record is replete with instances where the defendant was interrupted in his answers or was not given an opportunity to answer. In addition, at one point the prosecutor in effect testified by answering a question posed by a grand juror. If the government's actions in reading this irrelevant and highly prejudicial testimony to the jury were not intentionally designed to provoke a mistrial request, at a minimum they constitute gross negligence. It can best be described as prosecutorial error undertaken to harass or prejudice the defendant prosecutorial overreaching.5
49
Martin has shown the presence of anxiety, embarrassment and expense caused by his retrial. Under these circumstances we hold that the district court erred in denying Martin's motion to dismiss the indictment. Prosecutorial overreaching in the reading of the grand jury testimony to the trial jury gave appellant no choice except to move for mistrial and subject himself to the ordeal of another trial. We conclude Martin's constitutional right not to be twice put in jeopardy has been violated. Accordingly, we reverse appellant's conviction and direct that the indictment be dismissed.
50
Reversed.
51
HENLEY, Circuit Judge, dissenting.
52
I disagree with my learned colleagues both on the law and on inferences to be drawn from the facts.
53
Before the first trial commenced the government gave notice that the grand jury testimony of Martin would be offered in evidence. That testimony was read in evidence over a permitted continuing objection with the prosecutor having assured the court that irrelevant statements had been excluded. The assurance proved to be in error since as the majority recites at pages 139-140 of its opinion some irrelevant and prejudicial material was read to the jury.
54
As the prejudicial material was being read the defendant made no additional objection but quite properly contented himself with his continuing objection made initially. Nor did the trial judge at any point sustain the continuing objection or call to attention of the prosecutor the possible error in assurance previously given.
55
The entire grand jury testimony read extended over some thirty-two pages of transcript. After the reading defendant moved for a mistrial. Judge Shell, believing that error had been committed in connection with admission of some of the material, granted a mistrial.
56
At the second trial and in denying a plea of double jeopardy, Judge Williams found on the part of the prosecutor no intentional misconduct or gross negligence. On appeal the defendant makes no contention of intentional misconduct designed to provoke a mistrial; he does allege gross prosecutorial negligence.
57
The majority makes no effort to review the findings of Judge Williams under any appropriate standard. It relegates mention of his crucial findings on lack of misconduct and gross negligence to its footnote 4 and makes it own independent finding of "prosecutorial error undertaken to harass or prejudice the defendant."
58
I would accept the findings of Judge Williams, an experienced and conscientious trial judge, as not being clearly erroneous. It is clear that in the course of the ongoing first trial it was error to read into the record some substantial portions of the grand jury testimony but I find in the record no egregious error on the part of the prosecution of such consequence as to impel a finding of intentional harassment or intent to abort the trial.
59
It has generally been the rule that the double jeopardy clause does not prevent reprosecution when the first trial has ended in a mistrial declared upon motion of the defendant. Lee v. United States, --- U.S. ----, ----, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Parker v. United States, 507 F.2d 587 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1576, 43 L.Ed.2d 782 (1975); Roberts v. United States, 477 F.2d 544 (8th Cir. 1973).
60
But presently it must be conceded to the majority that within limitations a defendant's mistrial motion may not remove the double jeopardy bar. It is the nature and extent of these limitations that precipitate this dissent.
61
Lee v. United States, supra; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); and United States v. Jorn, supra, all contain dicta tending to cause one to suspect that there may be circumstances in which prosecutorial misconduct, or even perhaps some day prosecutorial negligence in some degree, will invoke double jeopardy, but the majority cites, and I can find, no Supreme Court case on appropriate facts holding that gross negligence or intentional prosecutorial trial error not calculated to produce a mistrial will support a claim of double jeopardy by one who moves for mistrial.1
62
In my view, Lee, Dinitz and Jorn, all supra, do not require in this case a departure from the general rule. When read in full, both Dinitz and Jorn seem to require that the prosecution act with intent to induce a request for mistrial by defendant before prosecutorial overreaching will be found or to require a design on the part of the prosecution to prejudice the defendant by procuring a trial at a different time and under circumstances less favorable to the defendant. It is conceded that no such design on the part of the prosecution was present in the case at bar.
63
Moreover, the broad reach of double jeopardy to be applied by the majority presents practical problems. I agree with Judge Bell's dissent in United States v. Dinitz, 492 F.2d 53, 63 (5th Cir. 1974), stating that:
64
(T)he ratio decidendi is too extreme to be workable and will give rise to much reluctance in granting mistrials. The trial courts will understand that society will be better served by completing a trial even after clear error has arisen and the defendant seeks a mistrial, then the alternative of a mistrial and the possible bar of double jeopardy based on error. The time and expense involved in completing the trial, taking an appeal, and in the retrial, will often be a small price to pay to protect the societal interest in law enforcement.
65
Accordingly, I cannot vote to reverse on double jeopardy grounds.
1
The Honorable Terry L. Shell, United States District Judge for the Eastern District of Arkansas
2
The Honorable Paul X Williams, United States District Judge for the Western District of Arkansas, sitting by designation
3
United States Constitution, Amendment V, provides: "No person * * * shall * * * be subject for the same offence to be twice put in jeopardy of life or limb."
4
The trial court, in denying Martin's Double Jeopardy claim, stated the following: "(W)e find that the government's errors which led to a mistrial did not amount to intentional misconduct or gross negligence." The court noted that both of the Assistant United States Attorneys who tried the case for the government submitted affidavits in which they swore that their actions were not intended to abort the trial and that they considered the grand jury testimony admissible evidence relevant to Martin's intent
5
A persuasive argument can also be made that the following excerpts read to the jury indirectly violated the district court's ruling on the defendant's motion in limine:
Q. (prosecutor) See if we can get this straight, Mr. Martin. You are an attorney. You have been to school for many, many years now.
Q. You got rid of nineteen thousand dollars why did you take bankruptcy?
Q. If I told you you made deposits of four thousand three hundred and seventeen dollars to your savings account at Iowa State in '73, that wouldn't hardly jive with your income, would it?
A. No, it wouldn't.
Q. And the thousand dollars you deposited in the Friendship Savings and Loan in August, '73, that added with the five thousand you placed in the bank in '73.
Q. Where did you get the money?
Q. (grand juror) Is that a checking or savings?
A. We must have got more than that
Q. (prosecutor) You fully intended to pay back but thought you would wash them off anyway?
A. At that particular time, talking about gross, talking about that, what I was, I was going to have to take care of the family on seven hundred and seventy dollars and pay back that amount of loan.
1
The majority cites United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976), for the proposition that error "motivated by bad faith or undertaken to harass or prejudice" the defendant bars retrial. This quotation may be deceptive when taken out of context. However, when read along with the two preceding paragraphs, it is clear that Dinitz requires bad faith harassment intended to goad the defendant into requesting a mistrial before reprosecution will be barred. A careful reading of United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), likewise does not fully support the majority opinion here. Analysis of footnote 12 following the discussion of overreaching indicates that Jorn requires that the prosecutorial impropriety justifying mistrial must result from a fear of acquittal, thus retaining the traditional intent element, before reprosecution will be barred
United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976), cited in support of the majority opinion, states that it is unclear from the Dinitz opinion whether "overreaching" would extend to gross negligence on the part of a prosecutor which led to mistrial.
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Case: 17-13025 Date Filed: 09/07/2018 Page: 1 of 82
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13025
________________________
D.C. Docket No. 3:16-cv-00195-RV-CJK
AMANDA KONDRAT’YEV,
ANDREIY KONDRAT’YEV,
ANDRE RYLAND,
DAVID SUHOR,
Plaintiffs - Appellees,
versus
CITY OF PENSACOLA, FLORIDA,
ASHTON HAYWARD,
Mayor,
BRIAN COOPER,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 7, 2018)
Case: 17-13025 Date Filed: 09/07/2018 Page: 2 of 82
Before NEWSOM and HULL, Circuit Judges, and ROYAL, ∗ District Judge.
PER CURIAM:
The City of Pensacola, Florida appeals a district court decision ordering it to
remove a 34-foot Latin cross from a public park on the ground that the City’s
maintenance of the cross violates the First Amendment’s Establishment Clause.
Having concluded that we are bound by existing Circuit precedent, we find
ourselves constrained to affirm.
I
The pertinent facts are undisputed. In 1941, the National Youth
Administration erected a wooden cross in the eastern corner of Pensacola’s
Bayview Park to be the “focal point” of what would become an annual Easter
sunrise program. The program itself was organized by the Pensacola Junior
Chamber of Commerce (a/k/a the “Jaycees”) and soon became a tradition, with
people gathering for Easter services during World War II to pray, among other
things, for “the divine guidance of our nation’s leaders” and for faith to “see
through the present dark days of war.” The services continued following the war,
and in 1949 the Jaycees built a small stage—or “bandstand”—immediately in front
of the cross to serve as a permanent home for the annual program.
∗
Honorable Charles Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
2
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In 1969, the Jaycees replaced the original wooden cross with the 34-foot
concrete version at issue in this appeal. The new cross was dedicated at the 29th
annual Easter sunrise service. The Jaycees donated the cross to the City, which
continues to light and maintain it at a cost of around $233 per year. Although the
cross is only one of more than 170 monuments scattered throughout Pensacola’s
parks, it is one of only two—and the only religious display—located in Bayview
Park. Over the years, the cross has continued to serve as the location for an annual
Easter sunrise program, but it has also been used as a site for remembrance
services on Veteran’s and Memorial Days, at which attendees place flowers near
the cross in honor of loved ones overseas and in memory of those who died
fighting in service of the country.
The Bayview Park cross stood in the same location for nearly 75 years,
essentially without incident, before the plaintiffs in this case filed suit asserting that
the cross’s presence on city property violates the Establishment Clause. The
parties filed dueling summary judgment motions, and the district court granted the
plaintiffs’ motion and ordered the cross removed. This is the City’s appeal.1
II
In relevant part, the First Amendment states that “Congress shall make no
law respecting an establishment of religion ….” U.S. Const. amend. I. Although
1
As this appeal comes to us following a grant of summary judgment, our review is de novo. See
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
3
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by its terms the Establishment Clause applies only to Congress, and although
available historical evidence indicates that it was originally understood as a
federalism-based provision designed to prevent the federal government from
interfering with state and local decisions about church-state relations, the Supreme
Court has since made clear that, as “incorporated” through the Fourteenth
Amendment, the Clause protects individual rights against state and local
interference. See, e.g., Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15
(1947). The question here, therefore, is whether the City’s maintenance of the
Bayview Park cross constitutes a prohibited “establishment of religion.”
The City contends (1) that none of the plaintiffs here has suffered sufficient
injury to have standing to sue and (2) that, in any event, the Bayview Park cross
does not violate the Establishment Clause under current Supreme Court precedent.
If we were writing on a clean slate, we might well agree—on both counts. But we
are not—and so we cannot. As we will explain, we have concluded that we are
bound by this Court’s decision in American Civil Liberties Union of Georgia v.
Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983), which
considered facts nearly indistinguishable from those here. There, with the approval
of the Georgia Department of Natural Resources, the Rabun County Chamber of
Commerce erected an illuminated 35-foot Latin cross in Black Rock Mountain
State Park. Id. at 1101. Like the Bayview Park cross at issue here, the Black Rock
4
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Mountain cross replaced a similar monument that had stood for a number of years
but had fallen into disrepair, and like the Bayview Park cross, it was dedicated at
an annual Easter sunrise service. Id. The ACLU of Georgia and five named
individuals sued, claiming that the Establishment Clause forbade the Black Rock
Mountain cross’s presence on state-owned land. A panel of this Court agreed,
holding both (1) that the plaintiffs there had standing to sue and (2) that the cross
violated the Establishment Clause. Id. at 1108–09, 1111.
For the reasons that follow, absent en banc reconsideration or Supreme
Court reversal of the holding in Rabun, we are bound by our “prior panel
precedent” rule to follow it, and are thus constrained to affirm the district court’s
decision. See, e.g., Breslow v. Wells Fargo Bank, 755 F.3d 1265, 1267 (11th Cir.
2014) (“It is the firmly established rule of this Circuit that each succeeding panel is
bound by the holding of the first panel to address an issue of law, unless and until
that holding is overruled en banc, or by the Supreme Court.”) (alteration and
internal quotations omitted).
A
We begin, as we must, with the question of the plaintiffs’ standing to sue.
See, e.g., Dillard v. Chilton Cty. Comm’n, 495 F.3d 1324, 1330 (11th Cir. 2007)
(“[S]tanding is a threshold jurisdictional question which must be addressed prior to
and independent of the merits of a party’s claims.”) (internal quotations omitted).
5
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As already indicated, we find that the Court’s earlier decision in Rabun resolves
the standing issue in the plaintiffs’ favor.
In Rabun, the defendants contended that the plaintiffs lacked standing under
the Supreme Court’s then-recent decision in Valley Forge Christian College v.
Americans. United for Separation of Church and State, Inc., 454 U.S. 464 (1982).
In Valley Forge, a nonprofit organization and four of its employees had sued to
prevent the transfer of federal land to a religious institution. Id. at 469. The Third
Circuit held that the plaintiffs had standing based on the “shared individuated right
to a government that ‘shall make no law respecting the establishment of religion.’”
Americans United for Separation of Church & State, Inc. v. U.S. Dep't of Health,
Ed. & Welfare, 619 F.2d 252, 261 (3d Cir. 1980). The Supreme Court rejected that
theory, finding that such “generalized grievances” are insufficient to confer
standing, and further stated that Establishment Clause plaintiffs who cannot
identify a personal injury “other than the psychological consequence presumably
produced by observation of conduct with which one disagrees” lack the injury
necessary to establish Article III standing. Valley Forge, 454 U.S. at 483, 485.
Relying on Valley Forge, the defendants in Rabun insisted that none of the
plaintiffs there had the necessary standing. 698 F.2d at 1103.
While the Rabun panel acknowledged that Valley Forge had “expressly held
that the mere ‘psychological consequence presumably produced by observation of
6
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conduct with which one disagrees’ is not a cognizable injury” for standing
purposes, id. (quoting 454 U.S. at 486), it nonetheless concluded that the plaintiffs
before it had “demonstrated an individualized injury, other than a mere
psychological reaction,” id. at 1108. Specifically, the panel held that the plaintiffs
had sufficiently “allege[d] that they ha[d] been injured in fact because they ha[d]
been deprived of their beneficial right of use and enjoyment of a state park.” Id. at
1103. Two of the plaintiffs, in particular, “demonstrated the effect that the
presence of the cross ha[d] on their right to the use of Black Rock Mountain State
Park both by testifying as to their unwillingness to camp in the park because of the
cross and by the evidence of the physical and metaphysical impact of the cross.”
Id. at 1108. More particularly still, the Rabun panel concluded, those two plaintiffs
were “forced to locate other camping areas or to have their right to use Black Rock
Mountain State Park conditioned upon the acceptance of unwanted religious
symbolism.” Id.
As we read Rabun, therefore, it is not strictly necessary for an Establishment
Clause plaintiff to modify his behavior in order to avoid the alleged violation;
rather, it is enough that he claim to have suffered “metaphysical”—or as the Rabun
panel also called it, “spiritual”—injury and that his use of a public resource has
been “conditioned upon the acceptance of unwanted religious symbolism.” Id.
Under Rabun’s expansive formulation, it seems to us that at least one of the
7
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plaintiffs in this case has alleged sufficient injury to pass Article III muster. Andre
Ryland testified that he uses Bayview Park “many times throughout the year” and
is “offended and feel[s] excluded by … the Bayview Cross.” Although it does not
appear that Ryland (or any other plaintiff for that matter) has taken any steps to
avoid encountering the cross, his “offen[se]” and “exclu[sion]” would seem to
qualify as the sort of “metaphysical” or “spiritual” injury that Rabun deems
adequate. Because Ryland has standing under Rabun, we need not consider
whether the other plaintiffs do. See, e.g., Watt v. Energy Action Educ. Found., 454
U.S. 151, 160 (1981).
We turn then, as did the panel in Rabun, to the merits of the plaintiffs’
Establishment Clause claim.
B
In considering the merits, we begin, once again, with Rabun. The panel
there analyzed the Black Rock Mountain cross under the three-prong
Establishment Clause test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971),
which both parties “agree[d]” supplied “the correct legal standard.” 698 F.2d at
1109. The Lemon test, the panel observed, asks “(1) [w]hether the [challenged]
action has a secular purpose; (2) [w]hether the ‘principal or primary effect’ is one
which neither ‘advances nor inhibits religion;’ and (3) [w]hether the action fosters
‘an excessive entanglement with religion.’” Id. (quoting Lemon, 403 U.S. at 612–
8
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13). “[I]f even one of these three principles is violated,” the panel continued, “the
challenged governmental action will be found to violate the Establishment Clause.”
Id. The Rabun panel concluded that the defendants there had “failed to establish a
secular purpose” for the Black Rock Mountain cross and, therefore, that “the
maintenance of the cross in a state park violate[d] the Establishment Clause of the
First Amendment.” Id. at 1111. In closing, the panel acknowledged that the cross
had stood in the park “[f]or many years,” but held that “‘historical acceptance
without more’ does not provide a rational basis for ignoring the command of the
Establishment Clause that a state ‘pursue a course of “neutrality” toward
religion.’” Id. (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413
U.S. 756, 792–93 (1973)).
The similarities between the Bayview Park cross at issue here and the Black
Rock Mountain cross at issue in Rabun are striking. As the district court
summarized:
In Rabun County, a private organization (there, the Chamber of
Commerce; here the Jaycees) put up a tall illuminated Latin cross
(there, a 35-foot cross; here a 34-foot cross) to replace an existing one.
The cross was on government property (there, a state park in Black
Rock Mountain; here, a city park in Pensacola), and its dedication was
specifically scheduled to coincide with the annual Easter Sunrise
Service (there, the 21st annual service; here, the 29th annual service),
which had been held at the site of the cross for a number of years.
9
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Doc. 41 at 10. Given the parallels between the two cases—and crosses—we think
it clear that Rabun (with its Lemon-based purpose analysis) controls our analysis
and requires that we affirm the district court’s decision.
The City contends that the Supreme Court’s more recent Establishment
Clause decisions free us to disregard Lemon—and thus Rabun—in our analysis.
And we cannot help but agree that the Court’s contemporary jurisprudence seems
to have substantially weakened Lemon—and thus, by extension, Rabun. See, e.g.,
Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014) (never mentioning
Lemon); Van Orden v. Perry, 545 U.S. 677 (2005) (plurality) (declining to apply
Lemon). But our precedent—in particular, our precedent about precedent—is
clear: “[W]e are not at liberty to disregard binding case law that is … closely on
point and has been only weakened, rather than directly overruled, by the Supreme
Court.” Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir.
1996). And at least as matters now stand, neither Lemon nor Rabun has been
“directly overruled.” Accordingly, our hands are tied. Absent en banc
reconsideration or Supreme Court reversal, we are constrained to affirm the district
court’s order requiring removal of the Bayview Park cross.
AFFIRMED.
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NEWSOM, Circuit Judge, concurring in the judgment:
Reluctantly, I agree that our existing precedent—and in particular, American
Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc.,
698 F.2d 1098 (11th Cir. 1983)—requires us to affirm the district court’s decision,
which orders the removal of a Latin cross that has stood in a remote corner of
Pensacola’s Bayview Park, essentially unchallenged, for 75 years. With respect to
both of the key issues here—the plaintiffs’ standing to contest the city’s
maintenance of the cross and the merits of their Establishment Clause challenge—
Rabun is effectively on point. And under our prior-panel-precedent rule, it seems
clear enough to me that we—by which I mean the three of us—are stuck with it.
See, e.g., United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).1
1
“Under [the prior-panel-precedent] rule, a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc. While an intervening decision of the Supreme Court can
overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on
point.” Archer, 531 F.3d at 1352. We haven’t been perfectly consistent in our articulation of the
rule, and other formulations would seem to allow subsequent panels more wiggle room. See,
e.g., United States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013) (“[O]ur prior precedent is
no longer binding once it has been substantially undermined or overruled by ... Supreme Court
jurisprudence.”); Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992) (“We may decline
to follow a decision of a prior panel if necessary to give full effect to a United States Supreme
Court decision.”); Leach v. Pan Am. World Airways, 842 F.2d 285, 286 (11th Cir. 1988)
(“[A]ccording to both Eleventh and Fifth Circuit precedent [a three-judge] panel may not
overlook decisions by the Supreme Court which implicitly overrule a binding circuit decision, or
undercut its rationale.”). As tempting as it may be to invoke one of the flabbier variants in order
to “write around” Rabun, I’ll resist the urge. The way I see it, a healthy respect for the decisions
of my colleagues—both past and present—counsels a fairly rigorous application of the prior-
panel-precedent rule.
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Having said that, it’s equally clear to me that Rabun is wrong. On neither
score—standing or the merits—can Rabun be squared with a faithful application of
Supreme Court precedent, and I urge the full Court to rehear this case en banc so
that we can correct the errors that Rabun perpetuates.
I
First, standing. Plaintiffs Andre Ryland and David Suhor assert that they
feel “offended,” “affronted,” and “excluded” by the Bayview Park cross. Neither,
though, it seems, has been sufficiently affected to take any affirmative steps to
avoid the cross. To the contrary, Ryland has explained that he continues to use
Bayview Park “many times throughout the year” and that he “often” encounters the
cross when “walk[ing] the trail around the park.” So too, Suhor says that he
“visit[ed] Bayview Park regularly” for years before filing suit and that he still
encounters the cross on “regular bike rides” there. (Suhor also used the cross for
his own purposes in 2016, just before filing suit—apparently for some kind of
satanic ritual.)
Under the Supreme Court’s pathmarking Establishment Clause standing
case, Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464 (1982), the plaintiffs’ allegations here—
offense, affront, exclusion—are plainly inadequate. There, the Court held, in no
uncertain terms, that “the psychological consequence presumably produced by
12
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observation of [religious] conduct with which one disagrees” is “not an injury
sufficient to confer standing under Art[icle] III, even though the disagreement is
framed in constitutional terms.” Id. at 485–86.
Just a year after Valley Forge, however, a panel of this Court upheld the
standing of the two plaintiffs in Rabun, who sued to remove a large Latin cross
from a state park in Georgia. The panel acknowledged Valley Forge’s holding that
“psychological” injury doesn’t give rise to Article III standing in an Establishment
Clause case. 698 F.2d at 1106. Even so, the panel concluded that the Rabun
plaintiffs had sufficiently alleged an injury-in-fact both (1) by testifying that they
were unwilling to camp in the state park so long as the cross stood there and,
separately, (2) “by the evidence of the physical and metaphysical impact of the
cross.” Id. at 1108. Thus, we said, the plaintiffs there suffered injury because they
were required either (1) to relocate to other camping areas or—again, separately—
(2) “to have their right to use [the state park] conditioned upon the acceptance of
unwanted symbolism,” the latter of which the panel described as a form of
“spiritual harm.” Id. Rabun makes clear, therefore, that at least in this Circuit, it is
enough for an Establishment Clause plaintiff to allege that he has suffered
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“metaphysical” or “spiritual” harm as a result of observing religious conduct or
imagery with which he disagrees.2
Can it really be that, as Valley Forge clearly holds, “psychological” harm is
not sufficient to establish Article III injury in an Establishment Clause case, and
yet somehow, as Rabun says, “metaphysical” and “spiritual” harm are? And can it
really be that I—as a judge trained in the law rather than, say, neurology,
philosophy, or theology—am charged with distinguishing between “psychological”
injury, on the one hand, and “metaphysical” and “spiritual” injury, on the other?
Come on. It seems clear to me that Rabun was wrong the day it was decided—
utterly irreconcilable with the Supreme Court’s then-hot-off-the-presses decision in
Valley Forge.
And to make matters worse, Rabun has only gotten more wrong as time has
passed. Since 1983, the Supreme Court has consistently tightened standing
requirements—emphasizing, for instance, that the “irreducible constitutional
minimum” comprises three distinct elements, Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992), that the “[f]irst and foremost” of those elements is injury-in-
fact, Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998), and
2
In Glassroth v. Moore, we held that two plaintiffs who “altered their behavior” to avoid a large
Ten Commandments monument in the rotunda of the Alabama Supreme Court had suffered and
continued to suffer “injuries in fact sufficient for standing purposes.” 335 F.3d 1282, 1292 (11th
Cir. 2003). Having done so, we excused ourselves from deciding whether another plaintiff,
“who ha[d] not altered his behavior as a result of the monument,” had standing. Id. at 1293.
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perhaps most significantly for present purposes, that an actionable injury must be
not only “particularized” in the sense that affects the plaintiff in an individual way,
but also “concrete” in the sense that it “actually exist[s]” and is “real” rather than
“abstract,” Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1548 (2016). Notably, along
the way—and again, in cases since Rabun was decided—the Court has expressly
rejected “stigma[],” Allen v. Wright, 468 U.S. 737, 754–55 (1984), “conscientious
objection,” Diamond v. Charles, 476 U.S. 54, 67 (1986), and “fear,” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 417–18 (2013), as judicially cognizable injuries.
To be clear, the question whether Article III’s standing requirement is
satisfied by the sort of squishy “psychological” injury that carried the day in
Rabun—and via Rabun, here—is no mere academic issue. Rather, it touches on
fundamental constitutional postulates. “The law of Article III standing,” the
Supreme Court recently reiterated, “is built on separation-of-powers principles
[and] serves to prevent the judicial process from being used to usurp the powers of
the political branches.” Clapper, 568 U.S. at 408. In particular, the Court has
emphasized that standing questions “must be answered by reference to the Art[icle]
III notion that federal courts may exercise power only ‘in the last resort, and as a
necessity.’” Allen, 468 U.S. at 752 (quoting Chicago & Grand Trunk R. Co. v.
Wellman, 143 U.S. 339, 345 (1892)). In the same vein, with respect to
concreteness—the aspect of the injury-in-fact requirement principally at issue
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here—the Court has underscored that when, as in this case, “a court is asked to
undertake constitutional adjudication, the most important and delicate of its
responsibilities, the requirement of concrete injury … serves the function of
insuring that such adjudication does not take place unnecessarily.” Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974). By contrast, “[t]o
permit a complainant who has no concrete injury to require a court to rule on
important constitutional issues in the abstract would create the potential for abuse
of the judicial process, distort the role of the Judiciary in its relationship to the
Executive and the Legislature and open the Judiciary to an arguable charge of
providing ‘government by injunction.’” Id. at 222.
In short, standing rules matter—and the sweeping standing rule that Rabun
embodies threatens the structural principles that underlie Article III’s case-or-
controversy requirement. We should take this case en banc in order to bring our
own Establishment Clause standing precedent into line with the Supreme Court’s
and to clarify that “offen[se],” “affront[],” and “exclu[sion]” do not alone satisfy
the injury-in-fact requirement.
II
I agree with the Court that Rabun controls the merits here, as well. The
factual similarities between the two cases are indeed (as the Court says, see Maj.
Op. at 9) “striking”—both involve 30-some-odd-foot illuminated Latin crosses that
16
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reside in public parks, that were dedicated at Easter sunrise services, and that are
(or were, as the case may be) maintained by the government. Applying the since-
much-maligned three-part test minted in Lemon v. Kurtzman, 403 U.S. 602
(1971)—and indeed, doing so by agreement of the parties 3—the panel in Rabun
required removal of the cross in that case, and it seems to me that an honest
reading of Rabun requires the same here.
But once again—this time for different reasons—Rabun is wrong. It simply
can’t be squared with the Supreme Court’s intervening Establishment Clause
precedent. The clearest evidence of that inconsistency is the concluding paragraph
of the Rabun opinion. The panel there acknowledged that the cross at issue had
stood “[f]or many years” but nonetheless held—quoting a now-nearly-50-year-old
decision—that “‘historical acceptance without more’ does not provide a rational
basis for ignoring the command of the Establishment Clause that a state ‘pursue a
course of “neutrality” toward religion.’” 698 F.2d at 1111 (quoting Comm. for
Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792–93 (1973)).
Whereas the Rabun Court thereby effectively dismissed history as a reliable
guide for Establishment Clause cases, the Supreme Court has since made clear that
history plays a crucial—and in some cases decisive—role in Establishment Clause
analysis. Initially, in Van Orden v. Perry, a four-justice plurality considering a
3
See Rabun, 698 F.2d at 1109 (“[B]oth parties agree that the district court applied the correct
legal standard ….”).
17
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challenge to a Ten Commandments monument on the Texas state capitol grounds
concluded that “[w]hatever may be the fate of the Lemon test in the larger scheme
of Establishment Clause jurisprudence”—again, a generation earlier the Rabun
Court had applied Lemon essentially by default, as the only game in town—it was
“not useful in dealing with the sort of passive monument that Texas ha[d] erected
on its Capitol grounds.” 545 U.S. 677, 686 (2005) (plurality). Instead, the
plurality explained, the proper analysis should be “driven both by the nature of the
monument and by our Nation’s history.” Id. (emphasis added). With respect to
the latter half of that conjunction, the plurality emphasized the Court’s earlier
holding that “‘[t]here is an unbroken history of official acknowledgment by all
three branches of government of the role of religion in American life from at least
1789.’” Id. (quoting Lynch v. Donnelly, 465 U.S. 668, 674 (1984)). That
“history,” the plurality concluded, comfortably encompassed the Ten
Commandments monument at issue. See id. at 691–92.
Even more pertinent for our purposes is the Supreme Court’s recent decision
in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014). There, in an opinion
by Justice Kennedy, the Court held that a city council’s practice of beginning its
meetings with a sectarian Christian prayer didn’t violate the Establishment Clause.
Notably, in so holding, the Court never so much as mentioned Lemon. Instead, the
Court relied on its earlier decision in Marsh v. Chambers, 463 U.S. 783 (1983),
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which had upheld a state legislature’s practice of opening its sessions with a prayer
delivered by a state-funded chaplain. Given legislative prayer’s unique historical
pedigree—“the First Congress provided for the appointment of chaplains only days
after approving language for the First Amendment,” 134 S. Ct. at 1819—the
Greece Court found that the challenge to the city council’s practice necessarily
failed: “Marsh stands for the proposition that it is not necessary to define the
precise boundary of the Establishment Clause where history shows that the specific
practice is permitted. Any test the Court adopts must acknowledge a practice that
was accepted by the Framers and has withstood the critical scrutiny of time and
political change.” Id.
Importantly for present purposes, the Court in Greece squarely rejected the
suggestion—which nonetheless seems to persist in many quarters 4—that Marsh
“‘carv[ed] out an exception’” to the usual Establishment Clause standards. Id. at
1818 (quoting Marsh, 463 U.S. at 796 (Brennan, J., dissenting)). Marsh, the
Greece Court clarified, “must not be understood as permitting a practice that would
amount to a constitutional violation if not for its historical foundation.” Id. at
1819. Rather, the Court stressed—using broad terms that apply every bit as clearly
here as they did there—Marsh stands for the proposition that “the Establishment
Clause must be interpreted ‘by reference to historical practices and
4
See Oral Arg. Tr. at 14:13 et seq.
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understandings.’” Id. (quoting Cty. of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670 (1989) (Kennedy, J.,
concurring in judgment in part and dissenting in part)) (emphasis added).
As his self-citations indicate—and as all here seem to agree5—Justice
Kennedy used as the blueprint for his majority opinion in Greece his earlier
separate opinion in Allegheny. Notably, that opinion—which had nothing to do
with legislative prayer but rather, like this case, addressed the constitutionality of a
religious display—similarly emphasized the centrality of history to any legitimate
Establishment Clause analysis. “Marsh,” Justice Kennedy said there—previewing
what he would later write for the full Court in Greece—“stands for the proposition,
not that specific practices common in 1791 are an exception to the otherwise broad
sweep of the Establishment Clause, but rather that the meaning of the Clause is to
be determined by reference to historical practices and understandings.” Allegheny,
492 U.S. at 670 (Kennedy, J., concurring in judgment in part and dissenting in
part). Any valid Establishment Clause standard, he emphasized, “must permit not
only legitimate practices two centuries old but also any other practices with no
greater potential for an establishment of religion.” Id. By contrast, he warned, any
“test for implementing the protections of the Establishment Clause that, if applied
5
See Oral Arg. Tr. at 15:12 et seq.
20
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with consistency, would invalidate longstanding traditions cannot be a proper
reading of the Clause.” Id.
So in the light of the Supreme Court’s most recent decisions, how exactly,
should the Bayview Park cross’s constitutionality be determined? What
Establishment Clause analysis applies? Frankly, it’s hard to say. The Court’s
Establishment Clause jurisprudence is, to use a technical legal term of art, a hot
mess. Lemon came 6 and went,7 and then came again 8—and now seems, perhaps,
to have gone again.9 The Court flirted with an “endorsement” standard for a
while, 10 but it too appears to have fallen out of favor. The “coercion” test may still
be a going concern, although it’s not quite clear when it applies, and there seem to
be competing versions of it, in any event. 11 And then, of course, Van Orden and
Greece have clarified that history and tradition play central roles in Establishment
Clause analysis.
6
See Lemon, 403 U.S. 602.
7
See Van Orden, 545 U.S. 677 (plurality opinion) (declining to apply Lemon).
8
See McCreary Cty., Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)
(applying Lemon).
9
See Greece, 134 S. Ct. 1811 (never mentioning Lemon).
10
See Edwards v. Aguillard, 482 U.S. 578, 593 (1987); Wallace v. Jaffree, 472 U.S. 38, 59–60
(1985); Lynch v. Donnelly, 465 U.S. 668, 687 (1984).
11
Compare, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992) (finding psychological coercion
sufficient to demonstrate Establishment Clause violation), with, e.g., Greece, 134 S. Ct. at 1838
(Thomas, J., concurring in part and concurring in the judgment) (requiring “actual legal
coercion”).
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Given the inconsistency—er, uncertainty—in the Supreme Court’s own
Establishment Clause precedent, I would leave it to the en banc Court to chart the
next move for this Circuit. The one thing of which I’m pretty certain is that
Rabun—which is what requires the three of us to affirm here—is wrong. It’s hard
to imagine an Establishment Clause analysis more squarely at odds with Rabun’s
than the one that Justice Kennedy inaugurated in Allegheny and then cemented in
Greece. Rabun’s concluding paragraph all but says that a practice’s “historical
acceptance” has no real bearing on its Establishment Clause footing. 698 F.2d at
1111. In stark contrast, Greece—which uses the terms “history” and “tradition”
more than 30 times—stresses that a practice’s historical acceptance is paramount.
Indeed, Greece states an unequivocal, exceptionless rule—which, it warrants
repeating, has its roots in a case (like this one) about a religious display: “[T]he
Establishment Clause must be interpreted ‘by reference to historical practices and
understandings.’” 134 S. Ct. at 1819 (quoting Allegheny, 492 U.S. at 670
(Kennedy, J., concurring in judgment in part and dissenting in part)).
How and to what extent, then, do “historical practices and understandings”
bear on this case? Pretty clearly and strongly, it seems to me. There is, put simply,
lots of history underlying the practice of placing and maintaining crosses on public
land—that practice, in Greece’s words, comfortably “fits within the tradition long
followed” in this country. Id.
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Though not (exactly) first in time chronologically, an interesting place to
begin what is necessarily an abbreviated historical survey is with the “Father Millet
Cross,” which currently stands in Fort Niagara State Park in upstate New York.
The current cross was erected in the 1920s on what was originally federal land.
Notably, though, it was put there to replace a wooden cross that had been placed in
the same spot by a Jesuit priest—Father Pierre Millet—in 1688, when the territory
was under French control. Father Millet was part of a rescue party that had
managed to save the remnant of a frontier detachment ravaged by cold, disease,
and starvation. On April 16, 1688—Good Friday—Father Millet celebrated Mass
and built a wooden cross, which he dedicated to God’s mercy for the survivors.
In 1925, President Calvin Coolidge set aside a 320-square-foot section of
Fort Niagara Military Reservation “for the erection of another cross
commemorative of the cross erected and blessed by Father Millet[].” The
following year, the New York State Knights of Columbus dedicated the
commemorative cross “not only to Father Millet, but to those other priests whose
heroism took Christianity into the wilderness ….” The cross bears the inscription
“REGN. VINC. IMP. CHRS.,” an abbreviation of Regnat, Vincit, Imperat,
Christus—i.e., Christ reigns, conquers, and commands. The Father Millet Cross
23
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was originally designated as a national monument and administered by the federal
government; ownership was transferred to the State of New York in 1949. 12
To be sure, the Father Millet Cross was originally constructed on land that
the United States didn’t control (at least definitively) until after the War of 1812.
But its history shows that the erection of crosses as memorials is a practice that
dates back centuries, and that for a long time now, we—we Americans, I mean—
have been commemorating the role that religion has played in our history through
the placement and maintenance of cross monuments.
In fact, President Coolidge’s proclamation was part of a tradition—in this
country specifically—that stretches back much farther. Just a few examples:
• San Buenaventura Mission Cross (Grant Park, Ventura, California)—In
1782, Spanish missionary Father Junipero Serra placed a large wooden cross
on a hilltop overlooking his recently established mission church. The
original cross was replaced in the 1860s and then again in 1912, and then
once again in 1941. The land on which the cross now stands was designated
a city park in 1918.13
• Cross Mountain Cross (Cross Mountain Park, Fredericksburg, Texas)—In
1847, the first settlers of what is now Fredericksburg discovered a timber
12
See Bob Janiskee, Pruning the Parks: Father Millet Cross National Monument, 1925-1949,
Was the Smallest National Monument Ever Established,
https://www.nationalparkstraveler.org/2009/09/pruning-parks-father-millet-cross-national-
monument-1925-1949-was-smallest-national-monument-ever-es4482 (last updated Sept. 4,
2009); Thor Borresen, Father Millet Cross: America’s Smallest National Monument,
https://www.nps.gov/parkhistory/online_books/regional_review/vol3-1e.htm (last visited Sept. 3,
2018).
13
See Serra Cross Park at Grant Park, Ventura, California: History of the Cross,
http://www.serracrosspark.com/history.html (last visited Sept. 3, 2018). Under threat of
litigation, the plot of land surrounding the cross itself was transferred to a private entity in 2003.
Id.
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cross on a hilltop. A cross has remained there ever since; the original was
replaced with a permanent lighted version in 1946, and today resides in the
city-maintained Cross Mountain Park. 14
• Chapel of the Centurion (Fort Monroe, Hampton, Virginia)—Since 1858, a
cross has perched atop the Chapel of the Centurion at Fort Monroe, which is
named for Cornelius, the Roman centurion who was converted to
Christianity by St. Peter—and which, until it was decommissioned in 2011,
was the United States Army’s oldest wooden structure in continuous use for
religious services. 15
• Irish Brigade Monument (Gettysburg National Military Park, Gettysburg,
Pennsylvania)—Erected in 1888 to honor soldiers from three New York
regiments who fought and died at Gettysburg, the monument is a 19-foot
Celtic cross. At the cross’s dedication, Father William Corby held a Mass
for the assembled veterans and blessed the monument.16
• Jeannette Monument (United States Naval Academy, Annapolis,
Maryland)—Erected in 1890, the largest monument in the Naval Academy
Cemetery, is a Latin cross dedicated to sailors who died while exploring the
Arctic in 1881.17
• Horse Fountain Cross (Lancaster, Pennsylvania)—This six-foot marble
cross was erected in 1898 and is maintained by the City of Lancaster. It
bears the inscription “Ho! Everyone That Thirsteth” and sits atop a granite
base with a small fluted basin designed to allow horses to drink from it. 18
14
See The City of Fredericksburg, Texas: Cross Mountain Park,
https://www.fbgtx.org/415/Cross-Mountain-Park (last visited Sept. 3, 2018).
15
See Chapel of the Centurion: History of the Chapel of the Centurion,
http://www.chapelofthecenturion.org/history.php (last visited Sept. 3, 2018).
16
See The Battle of Gettysburg: Irish Brigade Monument at Gettysburg,
http://gettysburg.stonesentinels.com/union-monuments/new-york/new-york-infantry/irish-
brigade/ (last visited Sept. 3, 2018).
17
See United States Naval Academy: Cemetery and Columbarium,
https://www.usna.edu/Cemetery/History_and_Memory/First_Monuments.php (last visited Sept.
3, 2018).
18
See Art Inventories Catalog, Smithsonian Am. Art Museum, Smithsonian Inst. Research Info.
Sys.: Ho! Everyone That Thirsteth, https://siris-
artinventories.si.edu/ipac20/ipac.jsp?session=P5C5741562R94.5247&profile=ariall&source=~!s
25
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• Father Serra Cross (Monterey, California)—This 11-foot granite Celtic
cross was donated to the City of Monterey in 1905 and installed on public
land in 1908. The cross features a portrait of Father Junipero Serra and an
image of his Carmel Mission.19
• Wayside Cross (New Canaan, Connecticut)—This large Celtic cross sits at
the intersection of Main and Park Streets on New Canaan’s historic green.
Erected in 1923 as a war memorial, it bears the following inscription:
“Dedicated to the glory of Almighty God in memory of the New Canaan
men and women who, by their unselfish patriotism, have advanced the
American ideals of liberty and the brotherhood of man.” 20
I could go on, but the point is clear enough. We’ve been doing this—
erecting and maintain crosses on public land—for a long time now, and cross
monuments and memorials are ubiquitous in and around this country.
* * *
So where does all that leave us? As I’ve already confessed, I don’t pretend
to know—as I’m sitting here—exactly how the questions surrounding the
constitutionality of the Bayview Park cross should be analyzed or resolved. Here,
though, is what I do know:
iartinventories&view=subscriptionsummary&uri=full=3100001~!343970~!415&ri=7&aspect=B
rowse&menu=search&ipp=20&spp=20&staffonly=&term=Emblem+--
+Cross&index=SUBJX&uindex=&aspect=Browse&menu=search&ri=7 (last visited Sept. 3,
2018).
19
See Art Inventories Catalog, Smithsonian Am. Art Museum, Smithsonian Inst. Research Info.
Sys.: Serra Landing, https://siris-
artinventories.si.edu/ipac20/ipac.jsp?uri=full=3100001~!341717!0 (last visited Sept. 3, 2018).
20
See Wayside Cross, New Canaan, CTMonuments.net,
http://ctmonuments.net/2011/07/wayside-cross-new-canaan/ (last updated July 8, 2011).
26
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1. That the Supreme Court’s Establishment Clause jurisprudence is a wreck;
2. That as a lower court, we are nonetheless obliged to do our best to discern
and apply it;
3. That in the last decade, the Supreme Court has increasingly emphasized the
centrality of history and tradition to proper Establishment Clause analysis,
culminating in its statement in Greece that “the Establishment Clause must
be interpreted ‘by reference to historical practices and understandings.’”
134 S. Ct. at 1819 (quoting Allegheny, 492 U.S. at 670 (Kennedy, J.,
concurring in judgment in part and dissenting in part));
4. That there is a robust history—dating back more than a century, to before
the time of the adoption of the Fourteenth Amendment, by which the First
Amendment would eventually be applied to state and local governments—of
cities, states, and even the federal government erecting and maintaining
cross monuments on public land; and
5. That our now-35-year-old decision in Rabun—which invalidated a cross
situated in a state park and, in so doing, summarily dismissed “historical
acceptance” as a reliable guide for Establishment Clause cases—is
irreconcilable with intervening Supreme Court precedent.
This case presents important questions—both for the future of Pensacola’s
Bayview Park cross and for the future of Establishment Clause jurisprudence in
this Circuit. Those questions demand the full Court’s undivided attention. I urge
the Court to take this case en banc so that we can take a first step toward an
Establishment Clause analysis that is not only more rational, but also more
consistent with prevailing Supreme Court precedent.
III
Our 35-year-old decision in Rabun controls this case and requires that we
affirm the district court’s decision. But in the intervening years it has become
27
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(even more) clear that Rabun was wrongly decided—with respect to both standing
and the merits. Because Rabun is doubly wrong, it doubly demands en banc
reconsideration.
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ROYAL, District Judge, concurring in the judgment:
Part I: INTRODUCTION
Good law—stare decisis—sometimes leads good judges to follow bad law
and write the wrong order. That happened in this case. Briefly, the district court’s
order relied on American Civil Liberties Union of Georgia v. Rabun County
Chamber of Commerce, Inc., 1 a case that was wrongly decided, and even if it was
not wrongly decided in 1983, it has been eclipsed by recent Supreme Court cases
that reflect a growing interest in history and historical practices. There is no injury,
no harm, and no standing to support jurisdiction in this case, but there is an
Eleventh Circuit rule that directs us to affirm the district court based on this flawed
precedent.
Rabun County needs to be reversed, and this Court needs to devise a
practical standing analysis. I believe that recent Supreme Court cases show us that
way. Furthermore, I believe that the coercion test should apply to passive
monuments, memorials, and displays, like the Bayview cross, and in this opinion, I
explain why that test should control.
I have organized the opinion and approached the issues in the case, in part,
based on the history of religious oppression. Historians know this record well; but,
1
698 F.2d 1098 (11th Cir. 1983).
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regrettably, most judges know little about it, and it is important. 2 So Part II of the
opinion offers a brief history of establishment evils and disestablishment remedies,
and it is divided into three sections. The first section outlines four religious
establishments: the first one from the Roman Empire, The Edict of Thessalonica,
and then one from the Medieval Age—the Catholic Church and its rule for
centuries over millions of Europeans. The third begins in early modern England:
King Henry VIII’s Anglican Church with its Book of Common Prayer, Thirty-Nine
Articles, and its ecclesiastical government and courts. The fourth church
establishment is the Congregationalist Church in early New England.
The second history section describes the ideas of early American thinkers
and leaders on religious establishments, the importance of religion, and how they
understood religious oppression and the solutions they proposed. The phrase “early
America” covers the colonial period, the revolutionary period, and the first decades
of the young republic. This second section is also important because it describes
religious oppression and all its evils. I let these leaders of religion, law, and
government speak for themselves so you can hear their anger, disgust, fear, dread,
despair, and misery.
The third history section offers examples of colonial and state charters and
constitutions that dealt with establishment issues in early America. In part, this
2
I include myself in the ignorant judge category, but some deep study can fill the gap.
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section describes the injuries minority believers suffered for their religious beliefs
and how colonial governments made religion more oppressive or devised ways to
end that oppression.
I do not think we can understand the origins of the Establishment Clause
without understanding what the founders identified as oppressive, the arguments
they used against oppression, and how they tried to end it. So, as you read the
history, pay attention to the word conscience and the array of phrases that use
words like “liberty of conscience,” “freedom of conscience,” “the dictates of
conscience,” “rights of conscience,” and the “free exercise of religion according to
the dictates of conscience.” But be careful not to apply a 21st century therapeutic
culture understanding of the word. “Conscience” is not describing someone’s
feelings. You cannot substitute the contemporary concept of psyche for the 18th
century idea of conscience.
For early American believers, the religious conscience never stood alone and
apart from action. In other words, oppression meant making them do something
they did not want to do or not letting them do something they believed that God
had called them to do according to their consciences. For example, citizens were
forced to pay tithes to a church whose theology and practices they hated or at times
were prohibited from preaching because they were not approved by the established
church. But there are other reasons to listen to the founders.
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Without letting the founders speak, without hearing their words and reading
their papers, I think it is hard for us living in our post-modern, highly secular
society to understand the religiosity of early Americans and the often tyrannical
adversity that beat down religious minorities like the Baptists and the Quakers.
Yet, Alexis de Tocqueville understood and described this religiosity well. In his
Democracy in America, written in the 1830s after he had spent several years
traveling around the country, he said: “It was religion that gave birth to the Anglo-
American societies. This must always be borne in mind. Hence religion in the
United States is inextricably intertwined with all the national habits and all the
feeling to which the fatherland gives rise.”3 And, as he goes on to explain,
“Christianity has therefore retained a powerful hold on the American mind, and—
this is the point I particularly want to emphasize—it reigns not simply as a
philosophy that one adopts upon examination but as a religion in which one
believes without discussion.”4 Indeed, “Christianity itself is an established and
irresistible fact, which no one seeks to attack or defend.”5
The study of early American history teaches that Christianity was central to
that history. Parenthetically then, a cross is not just a symbol of Christianity; it
3
ALEXIS DE TOCQUEVILLE: DEMOCRACY IN AMERICA 486 (Arthur Goldhammer trans., Library of
America 2004).
4
Id. at 486.
5
Id.
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symbolizes America’s past—a past perhaps forgotten, neglected, ignored, or even
despised, but nonetheless undeniable.
Part III of the opinion wrestles with the case law on the standing issues. I
agree with Judge Newsom that the Establishment Clause jurisprudence is a “hot
mess,” but I think of it more like a wilderness with misdirecting sign posts and
tortuous paths. The bad signposts and twisted paths are the various Establishment
Clause tests: separation, accommodation, history, neutrality, Lemon, endorsement,
and coercion, all used at one time or another, in one case and then not in another.
Next is the bog of concurring and dissenting opinions, and the opinions that concur
in the judgment only, that leave you with the sense that you are walking on
unsettled earth. Moreover, it is difficult to get out of a wilderness when all you
look at is what is immediately in front of you and do not understand the patterns
and directions of the past.
In this part of the opinion, I restate some of Judge Newsom’s argument for
continuity. I do, however, propose a way out of the wilderness. It is simple, like
Ariadne’s thread out of the labyrinth. As such, I limit this approach to cases
involving passive monuments, memorials, and displays under Establishment
Clause scrutiny like the cross in Pensacola and the cross on Black Rock Mountain
in Rabun County, Georgia. My approach is simple: just don’t deal with it at all
because in both Pensacola and Rabun County no injury, no coercion, no
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oppression, and no stigmatization occurred, so Plaintiffs have no standing and no
claim.
As part of the legal analysis, I also describe how the laches concept supports
the coercion analysis. This cross has stood quietly in the park for seventy-five
years with only one complaint 6 until this lawsuit was filed, and thousands of
people have enjoyed the park for decades. The laches concept is based in recent
Supreme Court cases and leaves questions like crosses to local government without
invoking the federal judiciary’s power. The laches concept works with the standing
analysis to give district courts a workable guide to deal with passive monuments in
cases where no harm has occurred. There is no case where there is no harm; history
tells us what harm is, and it also tells us that no plaintiff suffered harm in this case
and especially not in Rabun County.
On the other hand, district court judges should not be placed in the position
of deciding an Establishment Clause case based on a “math problem”—count the
monuments on public property to see if there are enough.7 Likewise, they should
not be placed in the position of deciding these cases based on a “geography
6
William Caplinger’s affidavit is in the record. He made a complaint to the Pensacola Director
of Leisure Services. The affidavit said that the cross made him feel uncomfortable. Pl.’s Reply in
Support of Motion for Summary Judgment, Doc. 39, Ex. 2. p. 36-7.
7
Van Orden v. Perry, 545 U.S. 677, 681, 691–92 (2005) (finding “[t]he 22 acres surrounding the
Texas State Capitol contain 17 monuments and 21 historical markers commemorating the
‘people, ideals, and events that compose Texan identity,’” and that “[t]he inclusion of the Ten
Commandments monument in this group has a dual significance, partaking of both religion and
government,” which did not violate the Establishment Clause).
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question”—see where the monuments are on public property. If I find the crèche in
one place, it is okay; but if I find it in another place, it violates the Constitution.8
There are over 170 memorials in Pensacola parks, but only one other in Bayview
Park. So the math answer and the geography answer required the finding that the
City of Pensacola violated the Constitution. This kind of constitutional casuistry is
folly. But this is where courts end up when separation, not
establishment/disestablishment, becomes the touchstone of the analysis. (More on
this later.) And I begin with some history.
Part II: A SHORT HISTORY OF RELIGIOUS ESTABLISHMENTS
In some recent Supreme Court Establishment Clause cases, the Court has
used history as a guide for deciding the issues.9 That history, however, is generally
limited to the specific activity, practice, monument, or display in dispute. But the
broader history of religious establishments teaches what the founders understood
about the oppression that religious establishments imposed and, therefore, their
reasons for enacting the First Amendment. There is considerable scholarly work on
religious persecution and the strife it provoked in Britain that caused early
Americans to flee their homeland to find religious freedom in the New World.
8
Cty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 599–
600, 109 S. Ct. 3086, 3104 (1989), abrogated by Town of Greece, N.Y. v. Galloway, 134 S. Ct.
1811 (2014) (“Thus, by permitting the display of the crèche in this particular physical setting, the
county sends an unmistakable message that it supports and promotes the Christian praise to God
that is the crèche's religious message.”) (internal citations and quotations omitted).
9
Salazar v. Buono, 559 U.S. 700, 716 (2010); Town of Greece, N.Y. v. Galloway, 134 S. Ct.
1811, 1819 (2014).
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The founding of the Massachusetts Bay Colony in 1630 is a well-known
example of this kind of religious migration. In fact, approximately twenty thousand
Puritans settled in New England between 1630 and 1640. 10 They were religious
refugees. There is also much history describing religious persecution in early
America, and it helps to understand this history. So I begin with four examples of
religious establishments. Most of the founders were well-educated men, and some
of them trained at Cambridge, Oxford, Harvard, Yale, or Princeton. They would
have known this history and even lived through some of it.
1. Four Religious Establishments
First, in 380 A.D., by the Edict of Thessalonica, Roman Emperor
Theodosius I established the Nicene Creed form of Christianity as the official
religion of the Roman Empire.11 The Edict affirms and commands a Trinitarian
statement of Christianity and was designed, in part, to end the Arian heresy taught
by the Arian bishops whose influence was widespread in the Empire. They
attacked the Trinitarian understanding of the deity of Christ. More importantly, the
Edict imposed punishments.
It proclaims that those who do not subscribe to the Trinitarian theology are
10
R.R. PALMER & JOEL COLTON, A HISTORY OF THE MODERN WORLD 143 (Alford A. Knopf,
Inc., 3d ed. 1967) (1950).
11
CHURCH AND STATE THROUGH THE CENTURIES: A COLLECTION OF HISTORIC DOCUMENTS WITH
COMMENTARIES 6-7 (Sidney Z. Ehler & John B. Morrall eds., Biblo & Tannen Publishers, 1967).
Emperors Gratian and Valentinian II also endorsed the edict.
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Judge[d] to be mad and raving and worthy of incurring the disgrace of
heretical teaching, nor are their assemblies to receive the names of
churches. They are to be punished not only by Divine retribution but
also by our own measures, which we have decided in accordance with
Divine inspiration.12
Here, in the space of two paragraphs, we find the key elements of religious
oppression and establishment tyranny.
The emperor, the sovereign, passed a law imposing religious beliefs for all
peoples within the empire. Some were happy with the Edict because they already
believed what it required. Others recognized that it condemned them, their beliefs,
and what they taught. The law was coercive and oppressive and empire-wide, and
it stigmatized all unbelievers by calling them madmen and heretics. It threatened
them with harm and prohibited them from teaching and practicing their version of
Christianity, or whatever was their religion, in a way that contradicted the
established theology. This Edict shows the common pattern of religious
oppression.
The second establishment is the Roman Catholic Church that held sway for
centuries across most of Europe until the time of the Reformation. The Catholic
Church exerted great power over the lives of most Europeans, and in the century
before the Protestant Reformation began, many Europeans resented the birth to
12
Id. at 7.
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death sacraments, the Mass, the religious taxes, the decadent ecclesiastical
hierarchy, and the canon law.
But when the Protestant revolt began against Catholic control, Europe
erupted into one of the most destructive conflagrations the West has ever known. A
good example of this control is well-known. Henry VIII wanted to divorce
Catherine of Aragon, and the Pope said no, primarily for political reasons. This
shows the Pope’s power: the King of England had to ask the Pope for permission
to divorce his wife. (She had not produced a male heir.) And because the Pope said
no, Henry established the Anglican Church to replace the Catholic Church in
England. The Anglican Church is the third establishment.
England’s struggle with Catholic enemies like France and Spain from the
outside and the problems with the enemies of the new Anglican Church, the
Dissenters, on the inside, compounded by the strife between English Catholics and
English Protestants, controlled much of British history for two hundred years.
Indeed, it spun British society out of control.
For example, in 1543, at King Henry’s direction, Parliament passed the Act
of Supremacy that declared him to be the supreme head of the Anglican Church
and its clergy. As part of the Act, all subjects had to swear allegiance to King
Henry as their religious leader and thereby required them to reject the Pope. You
no doubt know the story of Sir Thomas More who refused to take the oath and was
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beheaded. Henry also seized all the properties of the Catholic Church in England
and gave the land to his friends. And in 1536, he suppressed a Catholic rebellion. 13
For the next 200 years, religious persecution continued in England. Shortly
after King Henry died, his daughter Mary, the daughter of Catherine of Aragon,
took the throne. She tried to re-Catholicize England and earned the name Bloody
Mary because of all the Protestants she put to death. But it was not just Catholic
versus Protestant strife and hatred. There was also the problem of the Anglicans
versus the Dissenters and the Separatists, which included the Puritans, the
Congregationalists, and the Presbyterians, all of whom had some theological ties
and most of whom objected to or despised the Anglican Church. The Puritans
wanted to purify the Church of England from its Catholic tendencies, and that is
how they got their name.
I have given a brief overview of a complex history of
England and the Anglican Church, the Catholic Church, and the Dissenters. As
Pulitzer Prize winning historian T. Harry Williams explained: “These events of
seventeenth-century England form an essential part of American history. They help
to explain the causes and course of English colonization.” 14 Armed with this
summary, it is now easy to understand how old religious oppressions haunted the
13
R.R. PALMER & JOEL COLTON, supra, note 10, at 77-78.
14
T. HARRY WILLIAMS ET AL., A HISTORY OF THE UNITED STATES (TO 1877) 29 (Alford A.
Knopf, Inc., 2d ed. rev. 1966) (1959).
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New World. So the fourth establishment I describe is the Congregationalist Church
in New England.
A group of Puritans founded the Massachusetts Bay Colony in 1630, and
they established a Congregationalist style of church government and followed
many of John Calvin’s teachings. They desired a purer Christian church than the
Anglican Church that they had left in England. They strived for purity among their
church members, and while they required everyone in the colony to go to their
parish churches each Sunday, only the true believers could participate in
government. 15 But it was not enough to attend church; everyone had to support the
Congregationalist church.
In 1692, the colonial government enacted a tax that required all citizens to
support the local Congregationalist church and its minister.16 As a result, this law
forced conscientious dissenters to support the Congregationalist church when they
wanted to support their own church, the Baptists for example.17 And, as it
happened with the Anglican Church in England, dissenters arose in Massachusetts,
and the Congregationalists applied harsh measures against the “Separates.”
For example, in 1635 Anne Hutchinson criticized the framework of Puritan
piety. After two years of listening to her preaching and complaining, the
15
DIARMAID MACCULLOCH, THE REFORMATION A HISTORY 538 (Penguin Books 2005).
16
John D. Cushing, Notes on Disestablishment in Massachusetts, 1780-1833, Vol. 26, No. 2,
THE WILLIAM AND MARY QUARTERLY, 169, 169-90 (Apr. 1969).
17
Id. at 171.
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Congregationalists banished her from the colony, and she moved to Rhode
Island. 18 The Congregationalists also treated the Quakers harshly. The Quakers
moved to Massachusetts to escape persecution in England and began proclaiming a
very different Christian message from the Puritan teaching. In response to the
perceived threat to their churches and their colony, the Congregationalists publicly
flogged some Quakers and cropped their ears. Four of them were hanged because
of their missionary activity, including a woman—Mary Dryer. And as late as 1784,
John Murray, a Universalist minister, was fined fifty pounds for performing an
illegal marriage ceremony. It was illegal because he was not an ordained minister
according to Congregationalist requirements. 19 He fled to England to avoid being
fined for all the marriages he had performed.
Connecticut was another Congregationalist colony that imposed various
forms of oppression. Like Massachusetts, Connecticut required its citizens to
support the parish churches. In 1745, in Norwich, Connecticut, thirty dissenters
refused to pay the tax. One of them was Isaac Backus, whom I will discuss below.
They had “separated” and set up their own church and elected their own pastor.
Many were imprisoned in the Norwich Goale, including Isaac Backus’s brother for
18
MACCULLOCH, supra, note 15, at 539.
19
Cushing, supra, note 16, at 173-74.
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twenty days and his mother for thirteen days. 20 Isaac Backus became one of the
most influential religious leaders in 18th century America.
Religious oppression in New England and in Virginia was well-known to the
founders, as was the history of persecution in England. The next section describes
some of their ideas about oppression and church establishments.
2. Commentators, Founders, and Leaders in Early America and One English
Philosopher
Justice Joseph Story (1779-1845)
I begin this second history section with Justice Joseph Story’s Commentaries
on the Constitution because his three-volume work helps introduce church-state
relationships in early America. Story served on the Supreme Court from 1812 to
1832 and published his Commentaries in 1833. He was a great legal scholar. His
commentaries on the Constitution offer a valuable history about the early
American understanding of the relationship between government, law, and the
Christian religion, including the limitations on that relationship, and about the
importance of religion in general in early America.
As Story explains about the colonial period,
every American colony, from its foundation down to the revolution,
with the exception of Rhode Island, (if, indeed, that state be an
exception,) did openly, by the whole course of its laws and
20
THE GREAT AWAKENING, DOCUMENTS ON THE REVIVAL OF RELIGION, 1740-1745, 105-06
(Richard L. Bushman ed., University of North Carolina Press 1989) (1970).
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institutions, support and sustain, in some form, the Christian religion;
and almost invariably gave a peculiar sanction to some of its
fundamental doctrines. And this has continued to be the case in some
of the states down to the present period, without the slightest
suspicion, that it was against the principles of public law, or
republican liberty. 21
This is consistent with how Alexis de Tocqueville described America in the
1830s and the importance of Christianity. No doubt Story is speaking
generally, but he is describing the prevailing ideas of the day.
Story goes on to explain the sentiments of the times about religion and
government.
Probably at the time of the adoption of the constitution, and of the
amendment to it, now under consideration, the general, if not the
universal, sentiment in America was, that Christianity ought to receive
encouragement from the state, so far as was not incompatible with the
private rights of conscience, and the freedom of religious worship. An
attempt to level all religions, and to make it a matter of state policy to
hold all in utter indifference, would have created universal
disapprobation, if not universal indignation.22
One of the main reasons for the idea that government and religion should work
together was because in that era many people believed that good religion was
necessary for good morals and that good morals were necessary for a stable and
prosperous society. 23
21
THE FOUNDERS’ CONSTITUTION 108 (Philip B. Kurland & Ralph Lerner eds., vol. 5,
Indianapolis: Liberty Fund, 2001).
22
Id. at 109.
23
A good example of this belief comes from John Locke in “An Essay on Toleration” wherein
he says: “I must only remark . . . that the belief of a deity is not to be reckoned amongst purely
speculative opinions, for it being the foundation of all morality, and that which influences the
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But they also understood that a line had to be drawn and a limit imposed on
the church/state relationship. People had to be secure in their faith from harms or
limits on their freedom of religious conscience and their freedom to worship. It
was not simply a matter of a free state of mind; it was also about actions: Believers
could not be forced to do what their religion rejected nor prohibited from doing
what it required. As Story explains:
But the duty of supporting religion, and especially the Christian
religion, is very different from the right to force the consciences of
other men, or to punish them for worshipping God in the manner,
which, they believe, their accountability to him requires. It has been
truly said, that ‘religion, or the duty we owe to our Creator, and the
manner of discharging it, can be dictated only by reason and
conviction, not by force or violence.’ 24
And those were the problems: the churches’ use of force and violence to suppress
dissent and impose conformity. The founders addressed these problems in the First
Amendment.
Story explains the founders’ goals in enacting the First Amendment. It was
not to advance other religions
by prostrating Christianity; but to exclude all rivalry among Christian
sects, and to prevent any national ecclesiastical establishment, which
should give to an hierarchy the exclusive patronage of the national
government. It thus cut off the means of religious persecution, (the
vice and pest of former ages,) and of the subversion of the rights of
whole life and actions of men, without which a man is to be considered no other than one of the
most dangerous sorts of wild beasts, and so incapable of all society.” LOCKE: POLITICAL ESSAYS
137 (Mark Goldie ed. Cambridge University Press 2006) (1997).
24
Kurland & Lerner, supra, note 21, at 109.
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conscience in matters of religion, which had been trampled upon
almost from the days of the Apostles to the present age. 25
In other words, religious persecution had been a problem for almost two millennia.
He goes on to explain how this history of religious oppression affected the
founders in enacting the First Amendment.
It was under a solemn consciousness of the dangers from
ecclesiastical ambition, the bigotry of spiritual pride, and the
intolerance of sects, thus exemplified in our domestic, as well as in
foreign annals, that it was deemed advisable to exclude from the
national government all power to act upon the subject. . . . Thus, the
whole power over the subject of religion is left exclusively to the state
governments, to be acted upon according to their own sense of justice,
and the state constitutions; and the Catholic and the Protestant, the
Calvinist and the Arminian, the Jew and the Infidel, may sit down at
the common table of the national councils, without any inquisition
into their faith, or mode of worship.26
Religious toleration, therefore, was for everyone, and the federal government could
not establish a national church. This protected religious freedom in the new
country. But state governments could be involved in religion, and “separation”
only operated at the national level.
Now with this brief introduction from Justice Story’s Commentaries, I will
move on to what some of the important early American leaders had to say about
religious establishments. One theme prevails throughout: liberty of religious
25
Id.
26
Id. at 109-110.
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conscience, meaning not being required to act against it or being denied or
hindered in the right to follow it.
Reverend Jonathan Mayhew (1720-1766)
Reverend Mayhew was a Congregationalist minster in Boston who trained at
Harvard and Edinburgh. He coined the phrase “No taxation without
representation.”27 He and other Massachusetts leaders were alarmed when they
learned that the Archbishop of Canterbury, Thomas Secker, had decided to send
bishops to the Anglican Church in Massachusetts in the early 1760s. Despite the
fact that the Congregationalists held the power in Massachusetts, it was an English
colony, and as English citizens, they were required to support the Anglican
Church. One of the reasons that the Anglicans had not succeeded in Massachusetts
was because their churches had no bishops there. But that is not the point of
quoting Mayhew. Listen to how he grieves about an Anglican Church rising to
power in New England:
27
Judge Grant Dorfman, The Founders' Legal Case: "No Taxation Without Representation"
Versus Taxation No Tyranny, 44 HOUS. L. REV. 1377, 1378 (2008)(“See Dr. Jonathan Mayhew,
A Discourse Concerning Unlimited Submission and Non-resistance to the Higher Power, Sermon
before the West Church in Boston (Jan. 30, 1750), as reprinted in Pulpit of the American
Revolution 39, 77, 94-95 (Burt Franklin 1970) (1860) (arguing that one is bound by God to pay
taxes to the King; that the Lords and Commons are representatives of the people and extensions
of the King, so the people are bound by God to pay taxes to them; but when the King or his
extension act above the law and infringe on the rights of the people, the people are not bound to
the King, and thus no longer must pay him taxes).”).
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When we consider the real constitution of the church of England; and
how aliene her mode of worship is from the simplicity of the gospel,
and the apostolic times: When we consider her enormous hierarchy
ascending by various gradations from the dirt to the skies and that all
of us be taxed for the support of bishops and their underlyings, can we
help crying out Will they never let us rest in peace, except where all
the weary are at rest? Is it not enough, that they persecuted us out of
the old world? Will they pursue us into the new to convert us here? –
compassing sea and land to make US proselytes, while they neglect
the heathen and heathenness plantations! What other new world
remains as a sanctuary for us from their oppressions, in case of need?
Where is the Columbus who explores one for, and pilot us to it, before
we are . . . deluged in a flood of episcopacy? 28
Here Mayhew poignantly expresses the pain of religious oppression and the
fear that hovers with it. He fears the coming strife and the end of peace. He also
expresses his deeply held religious convictions and the threat posed by a religious
establishment to those outside of and opposed to that establishment.
Reverend Isaac Backus (1724-1806)
Isaac Backus was born in Connecticut and was one of early America’s
greatest proponents of the freedom of conscience and separation of church and
state. He was the foremost leader and spokesman for the Baptist churches in New
England in the 18th century. He conferred with delegates to the First Continental
28
BERNHARD KNOLLENBERG, ORIGIN OF THE AMERICAN REVOLUTION, 1759-1766, 84-85 (The
Free Press, 1965), Mayhew’s Attack on Plain for Colonial Bishops, Mayhew’s Observations,
155-56. The Congregationalists were concerned about having Anglican Bishops imposed on
them for several reasons, including setting up ecclesiastical courts and the expense of
maintaining the bishops, which in England was exorbitant. At this time the Congregationalists
outnumbered the Anglicans about 30 to one. Secker’s bishop controversy had the effect of
strengthening the unity of the Massachusetts churches and separating them from England.
Knollenberg, 82-83, 86.
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Congress in 1774 in Philadelphia and served as a delegate to the Massachusetts
convention that ratified the Constitution.29
In “An Appeal to the Public for Religious Liberty,” Backus describes the
punishments imposed by the Congregationalists and the suffering endured by their
victims, the Baptists. In this essay Backus describes the Baptist view of freedom of
conscience and their sufferings for demanding such freedoms. 30
The Baptists’ major conflict with the Congregationalists was pedobaptist
worship or baptizing infants, a practice that the Baptists denied had any biblical
basis. But, as explained above, the Massachusetts Congregationalists imposed a tax
on all citizens to support the Congregationalist church and minister in each parish.
For the Baptists, that meant supporting false teaching, which violated their liberty
of conscience. It also violated their pocketbooks and limited their support for their
own churches. Moreover, the penalties for failing to pay the levy were severe.
For example, William White had his cow taken because he did not pay the
pedobaptist minister’s rate. 31 In another town some Baptists had several hundred
acres confiscated and sold at auction below value to satisfy the tax.32 Baptists were
falsely accused of crimes, imprisoned, whipped, had their goods pillaged, and
some were banished from the Massachusetts colony because they denied infant
29
POLITICAL SERMONS OF THE AMERICAN FOUNDING, 1730-1805, 328 (Ellis Sandoz ed., vol. 1,
2d ed. Liberty Fund 1998).
30
Id. at 366.
31
Id. at 368.
32
Id. at 350.
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baptism. 33 They were also stigmatized when the government accused them of
being covetous for not paying the tax. And as Backus explained, paying the levy
required the Baptists to “uphold men from whom we receive no benefit, but rather
abuse.”34
At the beginning of the essay, Backus makes a plea for religious freedom,
and he describes what I have mentioned several times about the freedom of
conscience not being some state of mind but instead the freedom to carry out one’s
religious duties according to the dictates of conscience. As he explains,
[t]he true liberty of man is, to know, obey and enjoy his Creator, and
to do all the good unto, and enjoy all the happiness with and in his
fellow-creatures that he is capable of; in order to which the law of
love was written in his heart, which carries in its nature union and
benevolence to being in general, and to each being in particular,
according to its nature and excellency, and to its relation and
connexion to and with the supreme Being, and ourselves. 35
Thomas Jefferson (1743-1826)
I begin with how Jefferson described religious persecution in Virginia. It
sounds familiar. The Anglican Church was the established church in the Virginia
colony, and the Old World church practiced Old World oppression in Virginia.
In his “Notes on the State of Virginia,” Jefferson described an act of the
Virginia Assembly of 1705 that penalized atheists, those who did not believe in the
33
Id. at 345, 354. In 1664 the court at Boston passed an act to banish people who denied infant
baptism. Id. at 247.
34
Id. at 348.
35
Id. at 331.
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Trinity, those who were polytheists, those who denied the truths of Christianity,
and those who denied the authority of Scripture. For the first offense, the offender
lost the capacity to hold any office in government or be employed in any
ecclesiastical, civil, or military jobs. For a second offense, the offender lost the
power to sue, to take any gift or legacy, to be a guardian, executor, or
administrator, and was subjected to three years imprisonment. Furthermore, a
father could forfeit his right to his children. A Virginia court could take them away
and “put [them], by the authority of a court, into more orthodox hands.” 36 Jefferson
condemned this as religious slavery.
He also condemned the way Quakers were treated when they came to
Virginia. It sounds like what happened in New England:
The poor Quakers were flying from persecution in England. They cast
their eyes on these new countries as asylums of civil and religious
freedom; but they found them free only for the reigning sect. 37 Several
acts of the Virginia assembly of 1659, 1662, and 1693, had made it
penal in parents to refuse to have their children baptized; had
prohibited the unlawful assembling of Quakers; had made it penal for
any master of a vessel to bring a Quaker into the state; had ordered
those already here, and such as should come thereafter, to be
imprisoned till they should abjure the country; provided a milder
punishment for their first and second return, but death for their third . .
. . 38
36
Kurland & Lerner, supra, note 21, at 79.
37
The Quakers were a Christian religious group started by George Fox that largely rejected
religious formalism and looked for the inner experience of the Spirit of Christ. They came to
America to flee persecution.
38
Kurland & Lerner, supra, note 21, at 79.
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Jefferson despised this oppression, but he explained that the Anglicans had
complete control over the colony for about 100 years. And in 1769, when he
became a member of the Virginia legislature, he complained: “Our minds were
circumscribed within narrow limits by an habitual belief that it was our duty to be
subordinate to the mother country in all matters of government. . . and even to
observe a bigoted intolerance for all religions but hers.”39 The English Anglican
mindset and practices continued in Virginia. But Jefferson did not rest with this
intolerance. He acted to overcome it.
In 1779, as Governor of Virginia, he drafted a bill to establish religious
freedom. It summarizes some of his important ideas about freedom of conscience.
He wanted to end civil and church abuses directed toward influencing or
commanding certain religious beliefs by “temporal punishments or burthens, or by
civil incapacitations, [which] tend only to beget habits of hypocrisy and
meanness.”40 This is tyranny. He explains
[t]hat the impious presumption of legislators and rulers, civil as well
as ecclesiastical, who, being themselves but fallible and uninspired
men, have assumed dominion over the faith of others, setting up their
own opinions and modes of thinking, as the only true and infallible,
and as such, endeavouring to impose them on others, hath established
and maintained false religions over the greatest part of the world, and
through all time: That to compel a man to furnish contributions of
39
THOMAS JEFFERSON, WRITINGS 5 (Merrill D. Peterson ed., The Library of America 1984).
40
Kurland & Lerner, supra, note 21, at 77.
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money for the propagation of opinions which he disbelieves and
abhors, is sinful and tyrannical.41
He denounced church oppression and argued that citizens’ civil rights should
not depend on their religious opinions. His denunciation brings to light another
problem in early America caused by established churches in the colonies.
Citizens with dissenting religious views were deprived of the right to hold
public office unless they renounced their offensive religious opinions. Jefferson
said that this denied them their civil rights. The wide-spread practice of the civil
authority imposing religious views or condemning dissenting views destroys
religious liberty. And in his bill on religious freedom, Jefferson sums up his attack
on religious oppression in this way:
no man shall be compelled to frequent or support any religious
Worship place of Ministry whatsoever, nor shall be enforced.
Restrained, molested, or burthened in his body or goods, nor shall
otherwise suffer on account of his religious opinions or belief, but that
all men shall be free to profess, and by argument to maintain their
opinions in matters of religion, and that the same shall in no wise
diminish, enlarge, or affect their civil capacities. 42
There was another side to Jefferson’s view on religion and government that
is not well-known. But first, and for context, this is what is generally known.
When Jefferson became President, unlike George Washington and later
Abraham Lincoln, he refused to proclaim a day of prayer because he believed such
41
Id. at 77.
42
Id.
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a day violated the separation of church and state—the state being the national
government. He wrote a letter to Reverend Samuel Miller in 1808 to defend his
decision:
I consider the government of the US. as interdicted by the
Constitution from intermeddling with religious institutions, their
doctrines, discipline, or exercises. This results not only from the
provision that no law shall be made respecting the establishment, or
free exercise, of religion, but from that also which reserves to the
states the power not delegated to the U. S. Certainly no power to
prescribe any religious exercise, or to assume authority in religious
discipline, has been delegated to the general government. It must then
rest with the states, as far as it can be in any human authority. 43
Next is what is not well-known. In 1774, the British Parliament passed the
Boston Port Act, and in response Jefferson followed the pattern of New England
Puritans and set June 1, 1774, as a day of “fasting, humiliation & prayer, to
implore heaven to avert from us the evils of civil war, to inspire us with firmness in
support of our rights, and to turn the hearts of the King & parliament to moderation
& justice.” 44 This, of course, was Virginia action, not national government action,
but nonetheless, it was religious establishment action.
More importantly, in 1776, Jefferson prepared a draft of a bill exempting
dissenters from supporting the Anglican Church in Virginia. The text of the bill
highlights an important part of English church history that continued in Virginia
43
Id. at 98.
44
Peterson, supra, note 39, at 8.
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and other colonies. It required Virginians to pay taxes to support the churches.
Here is what the bill said:
Whereas it is represented by many of the Inhabitants of this Country
who dissent from the Church of England as by Law established that
they consider the Assessments and Contributions which they have
been hitherto obliged to make towards the support and Maintenance of
the said Church and its Ministry as grievous and oppressive, and an
Infringement of their religious Freedom: Be it Enacted by the General
Assembly of the Common Wealth of Virginia and it is hereby Enacted
by the Authority of the same that all Dissenters of whatever
Denomination from the said Church shall from and after the passing
this Act be totally free and exempt from all Levies Taxes and
Impositions whatever towards supporting and maintaining the said
Church as it now is or may hereafter be established and its Minsters. 45
As I have shown, taxing citizens to support the established church was
common in the colonial period. It was also common to tax those who objected to
the practices and beliefs of that church. So Jefferson’s proposed bill dealt with a
serious issue of that day and long before, and it offered relief to dissenters by
excusing them from supporting a church that contradicted their religious
consciences.
Here is the important part of Jefferson’s bill for my purposes. His bill
relieved the Virginia dissenters from having to pay the Anglican church tax, but it
still required them to pay the tax for their own churches. Furthermore, his bill
required Anglicans in Virginia to pay the tax to support the Anglican churches.
This is a classic establishment practice. So the idea that Jefferson was a strict
45
Kurland & Lerner, supra, note 21, at 74.
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separationist is correct at the national level but not at the state level. And this leads
to Jefferson’s “wall of separation” metaphor.
In his 1802 letter to the Danbury Baptist Association, Jefferson used the wall
of separation metaphor that Justice Black later adopted in Everson v. Board of
Education 46 in 1947. Roger Williams, the dissenter who established the colony of
Rhode Island, had used that phrase at least a century before Jefferson. 47 Richard
Hooker used the walls of separation metaphor in his book Of the Laws of
Ecclesiastical Polity at the end of the 16th century. 48 And we can go back before
that when John Calvin expressed the substance of the idea in 1536 in his Institutes
of the Christian Religion. In talking about the difference between the civil and the
ecclesiastical power, Calvin said: “The difference therefore is very great; because
the Church does not assume to itself what belongs to the magistrate, nor can the
magistrate execute that which is executed by the Church. . . .” 49
Of course, in the context of the Danbury letter, Jefferson used the wall
metaphor to apply to “the Church and State.” 50 He does not say between the
churches and the states. Moreover, according to the letter, the Establishment
46
330 U.S. 1, 16 (1947).
47
Williams used the phrase in his 1644 tract entitled “Mr. Cotton’s Letter Lately Printed,
Examined & Answered.” DANIEL L. DREISBACH, THOMAS JEFFERSON AND THE WALL OF
SEPARATION BETWEEN CHURCH AND STATE 76 (New York University Press 2002).
48
DREISBACH, supra, note 47, at 73.
49
Kurland & Lerner, supra, note 21, at 44.
50
Id. at 96.
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Clause is between the American people and their legislature, not their legislatures.
So for good or ill, the Everson court used the wall metaphor, but it moved
Jefferson’s wall by applying it to the states.
Jefferson, on the other hand, understood the Establishment Clause to apply
only to the federal government. It is clear from his writing that he did not want
Congress to establish a national church like Henry VIII’s Anglican Church. Indeed,
in a letter to Benjamin Rush in 1800, he said that the goal of the Episcopalians and
Congregationalists to establish their denomination as a national church had been
aborted by the return of good sense in the country. 51 He is referring to the
Constitution and the Bill of Rights that prohibited a national church.
Consistent with that idea, in 1878 the Supreme Court recognized this
limitation in Reynolds v. U.S. The Court said that the First Amendment “deprived
[Congress] of all legislative power over mere opinion, but [ ] left [it] free to reach
actions which were in violation of social duties or subversive of good order.”52 In
other words, Congress could not control religious opinion, but it could control
religious practices when they violated the good order of society. The Reynolds
Court held that Mormon polygamy violated that social order.
51
Peterson, supra, note 39, at 1082.
52
Reynolds, 98 U.S. 145, 164 (1878) (upholding the constitutionality of a Utah criminal statute
outlawing polygamy).
56
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In the same paragraph in Reynolds, however, the Court makes a curious
statement about Jefferson’s wall metaphor: “Coming as this does from an
acknowledged leader of the advocates of the [First Amendment], [the wall
metaphor] may be accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured.”53 I have found nothing in my studies that
indicates that Jefferson used the metaphor before he wrote his Danbury Baptist
letter or thereafter or that he intended it to be the touchstone of Establishment
Clause jurisprudence. According to Jefferson scholar Daniel Dreisbach,
[t]here is no evidence that Jefferson considered the metaphor the
quintessential symbolic expression of his church-state views. There is
little evidence to indicate that Jefferson thought the metaphor
encapsulated a universal principle of religious liberty or the prudential
relationships between religion and all civil government (local, state,
and federal.) 54
Since Everson, the Supreme Court’s First Amendment jurisprudence often
relies on this phrase, this metaphor, twisted out of its historical context, transferred
into a new context with little evidence that Jefferson ever intended to use the wall
metaphor in that way. Nonetheless, it has become the standard of Establishment
Clause analysis. It is one thing to say, however, it is the standard; it is something
different to say that Jefferson was the champion of that standard, and therefore we,
the courts, are following Jefferson. And perhaps without thinking much about it,
53
Id.
54
DREISBACH, supra, note 47, at 69-70.
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the Supreme Court has replaced the key word in the First Amendment—
establishment—with a word not in the First Amendment—separation.
I believe that in focusing on separation, the Everson Court shifted away from
the history that led up to the First Amendment. It shifted away from the historical
establishment/disestablishment language to the separation language. But as Judge
Cardoza explained: “Metaphors in law are to be narrowly watched, for starting as
devices to liberate thought, they end often by enslaving it.” 55 Chief Justice Burger
likewise warned that “[j]udicial caveats against entanglement must recognize that
the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable
barrier depending on all the circumstance of a particular relationship.” 56
And Chief Justice Rehnquist may be the most forceful critic of the wall
metaphor. As he said in Wallace v. Jaffree,“[i]t is impossible to build sound
constitutional doctrine upon a mistaken understanding of constitutional history, but
unfortunately the Establishment Clause has been expressly freighted with
Jefferson’s misleading metaphor for nearly 40 Years.” 57 The separation concept
has many critics.
In Everson, Justice Black used strong separation language that goes beyond
what I believe “disestablishment” requires. He described separation not simply as
55
Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).
56
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
57
Wallace v. Jaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J., dissenting).
58
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limiting the government from setting up a national church or the other types of
religious oppression I have shown. He devised a strict list of what the government
could not do in the religious sphere. The list goes beyond disestablishment. The
problem is that “separation” tends to lead to the sanitization of any evidence of
religion in the public sphere. That has led to the Lemon test, which is a sanitization
test. And the Pensacola cross is about to get sanitized.
Placing a cross in a public park that many people have enjoyed for decades,
that stands mute and motionless, that oppresses no one, that requires nothing of
anyone, and that commands nothing does not violate the Establishment Clause.
Nor is it religious oppression. The cross can only cast a shadow; it cannot cast any
harm. Only someone with a strict separationist view could find a violation, and
such a finding would not be based on an actual injury that satisfies the standing
requirement. For the strict separationist, the cross has to go because it is there, not
because it causes injury. But now I move to the third and final section on the
history of religious oppression.
3. Colonial and State Charters, Constitutions, and Proposed Constitutional
Amendments
In this section I offer some government documents from early America on
religious freedom. These are not simply the ideas and actions of individuals; they
are the actions of government. The purpose is to give more background about the
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founders’ thoughts on religious freedom and how that thinking ended in state
action that led to or influenced the First Amendment. Some of these documents
offer profound statements supporting religious freedom. Some documents
established churches, and some show the kinds of penalties imposed on dissenters
and non-conformists that the Establishment Clause was designed to prohibit.
Others show that many colonial and state governments acted to support religion for
their citizens’ benefit.
The first act is the “Maryland Act concerning Religion” of 1649. This act
required anyone who blasphemed God, denied the Trinity, or uttered reproachful
words “concerning the blessed Virgin Mary the Mother of our Saviour or the holy
Apostles or Evangelists” to pay a fine or be whipped or imprisoned, and upon the
third offense, be banished from the province. 58 It should remind you of the Edict of
Thessalonica because it imposes a Trinitarian system of religious beliefs on
Maryland citizens.
Twenty years later, the Carolina Fundamental Constitutions of 1669
established the Anglican Church as the only true church in the Carolina colony. It
further authorized the colonial government to maintain churches and employ
ministers.59 The act offers another example of the early American idea about the
importance of religion for society. The Carolina government wanted to promote
58
Kurland & Lerner, supra, note 21, at 49.
59
Id. at 51.
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Christianity in the colony, and despite establishing Anglicanism, it allowed groups
to form their own churches. 60 It, however, also contained the harsh penalties that
were common in the mid-seventeenth century by divesting the unchurched of all
their rights.
This kind of oppression began to fade in the middle part of the 18th century.
Beginning around the time of the revolution, the founders began drafting state
constitutions that often included religious freedom protections. These provisions
usually described religious freedom as a freedom based in liberty of conscience.
One of the most influential statements is in the Virginia Declaration of Rights of
1776.
16. That religion, or the duty which we owe to our CREATOR, and
the manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore all men are equally
entitled to the free exercise of religion, according to the dictates of
conscience; and that it is the mutual duty of all to practice Christian
forbearance, love, and charity, towards each other.61
Beyond the focus on conscience, the act founds the right to religious freedom in
the Christian religion itself and explains that the Christian religion requires
forbearance, love, and charity to all. A similar provision was offered at the
Virginia Convention to ratify the U.S. Constitution.62 Also in 1776, the Virginia
60
Id.
61
Id. at 70.
62
Id. at 89.
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Assembly passed a bill that exempted dissenters from paying support to the
Anglican Church and specifically revoked every English act or statute that imposed
criminal penalties for religious action in the colony. 63 And finally, I turn to New
England.
The Massachusetts Constitution of 1780 offers a concise example of the
language used in state constitutions at the time that protected religious liberty:
Art. II It is the right as well as the duty of all men in society, publicly
and at stated seasons, to worship the Supreme Being, the great Creator
and Preserver of the universe. And no subject shall be hurt, molested,
or restrained, in his person, liberty, or estate, for worshiping God in
the manner and season most agreeable to the dictates of his own
conscience, or for his religious profession or sentiments, provided he
doth not disturb the public peace or obstruct others in their religious
worship.64
The Massachusetts Constitution offers a valuable summary of how it and other
constitutions of that era tried to protect religious freedom and to define what that
freedom meant. Specifically, it shows the importance of religion by calling it a
duty. It also conveys a right to liberty of religious conscience, and in exercising
that right, protection from being hurt, molested, restrained, or losing one’s
property. It also illustrates the thought of the age in which religious freedom was
understood as a fundamental right.
63
Id. at 75.
64
Id. at 77.
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I could add other state constitutions from late eighteenth century America
that speak in the same voice, use the same words, and protect the same rights. But I
end here and move on to show what this history says about the Establishment
Clause and the standing issue when no coercion and no harm have occurred.
Part III: LEGAL ISSUES
When you examine the history of religious oppression that led, in part, to the
founding of our country and the enactment of the Establishment Clause, it becomes
clear how incongruent the “harm” is in City of Pensacola and Rabun County with
the harms the Establishment Clause was designed to prevent. Standing that
authorizes Article III jurisdiction requires harm; and as Town of Greece, N.Y. v.
Galloway,65 makes clear, it must be something more than annoyance, discomfort,
or some other psychological harm. And standing requirements are important.
Standing requirements ensure that the federal judiciary only consider cases
where actual harm has occurred or been threatened, and leave to the political
process the “abstract questions of wide public significance which amount to
generalized grievances….”66 And although, as Judge Newsom says in his
concurrence, Circuit precedent in American Civil Liberties Union of Georgia v.
65
134 S. Ct. 1811 (2014).
66
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464, 475 (1982) (internal quotations and citations omitted).
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Rabun County Chamber of Commerce,67 constrains us to find that plaintiffs
suffered sufficient injury to confer standing, that finding contradicts recent
Supreme Court rulings—specifically its decision in Valley Forge Christian College
v. Americans United for Separation of Church & State, Inc.,68 and Town of Greece.
Moreover, this finding is inconsistent with the history of religious oppression in
Britain and early America that the Establishment Clause guards against.
The “irreducible constitutional minimum” of standing consists of three
elements, and the first one is at issue here: “[T]he plaintiff must have suffered an
injury in fact—an invasion of a legally-protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” 69 In
his concurrence, Judge Newsom makes two points regarding standing that I would
like to emphasize. First, he states, “Rabun was wrong the day it was decided—
utterly irreconcilable with the Supreme Court’s then-hot-off-the-presses decision in
Valley Forge.” Later, Judge Newsom stresses how “standing rules matter—and the
sweeping standing rule that Rabun embodies threatens the structural principles that
underlie Article III’s case or controversy requirement.”
I agree with Judge Newsom that Rabun County was wrongly decided.
Ultimately, Rabun County is irreconcilable with Valley Forge because the ruling
67
698 F.2d 1098 (11th Cir. 1983).
68
454 U.S. 464 (1982).
69
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted).
64
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on standing is based on a flawed distinction that conflates active government
coercion with a passive religious monument. It also fails to take any account of
history, and history has become important for the Supreme Court since 1983 in
Establishment Clause cases. So the Rabun County panel read Valley Forge and
misunderstood it and then misapplied it.
The panel distinguished the plaintiffs’ lack of standing in Valley Forge from
plaintiffs’ standing in Rabun County based on the plaintiffs’ choice between not
using the park or using the park and suffering psychological consequences. The
panel found possible psychological harm sufficient to confer standing despite the
fact that before filing suit, no plaintiff had ever camped in Black Rock State Park,
no plaintiff lived in Rabun County, Georgia, 70 and only one plaintiff had even seen
the cross, and then, only from flying over it in an airplane. The other plaintiffs
learned about the cross from anonymous phone calls and news releases.71 The
panel held that, unlike the non-resident plaintiffs in Valley Forge, “the plaintiffs in
[Rabun] are residents of Georgia who make use of public parks which are
maintained by the State of Georgia; these factors thus provide the necessary
70
It is interesting to note that the citizens of Rabun County were so attached to their cross, they
eventually resurrected it on private land not far from its previous location and started a non-profit
to raise money for its upkeep.
71
Rabun, 698 F.2d at 1107-08.
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connection, which was missing in Valley Forge, between the plaintiffs and the
subject matter of the action.”72
Furthermore, the Rabun panel primarily based its finding of standing on two
reasons—neither of which justifies a holding so incompatible with the standing
limits mandated by Valley Forge. First, the panel determined that the Supreme
Court had recognized a legally protected interest in the use and enjoyment of land
in Sierra Club v. Morton,73 United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 74 and Duke Power Co. v. Carolina Environmental
Study Group., Inc..75 Indeed, the Supreme Court had recognized a legally protected
interest in the use and enjoyment of land/natural resources in Sierra Club, SCRAP,
and Duke Power Co. 76 However, the harm, or threatened harm, in these cases was
environmental destruction—a real, concrete, and perceptible injury that does not
72
Id. at 1107.
73
405 U.S. 727 (1972).
74
412 U.S. 669 (1973).
75
438 U.S. 59 (1978). The Rabun Panel also cited a D.C. Circuit Establishment Clause case.
However, this case was also pre-Valley Forge and has no precedential value.
76
In Sierra Club, the Supreme Court stated the road to be built through Sequoia National Park
threatened an injury in fact in that “‘would destroy or otherwise adversely affect the scenery,
natural and historic objects and wildlife of the park and would impair the enjoyment of the park
for future generations.’” 405 U.S. at 734 The Court stated it did “not question that this type of
harm may amount to an ‘injury in fact’ sufficient to lay the basis for standing,” but found the
plaintiffs in that case failed to allege the injury was sufficiently personal. Id. at 734,735. In
SCRAP, the Supreme Court held that since Plaintiffs “used the forests, streams, mountains, and
other resources in the Washington metropolitan area for camping, hiking, fishing, and
sightseeing, and that this use was disturbed by the adverse environmental impact …,” this was
sufficient to establish an injury in fact. 412 U.S. at 685. In Duke Power, the Supreme Court held
that “the environmental and aesthetic consequences of the thermal pollution of the two lakes in
the vicinity of the disputed power plants is the type of harmful effect which has been deemed
adequate in prior cases to satisfy the ‘injury in fact’ standard.” 438 U.S. at 73-74 (internal
citation omitted).
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support the proposition that one’s interest in the use and enjoyment of a public
park that has a cross on it violates the Constitution.
Second, the Rabun panel determined that the injuries complained of in
Rabun County were more comparable to the plaintiffs’ injuries in School District
of Abington Township v. Schempp,77 rather than the non-injury in Valley Forge. In
Valley Forge, the Supreme Court reiterated its “earlier holdings that standing may
be predicated on noneconomic injury” and cited Abington as a case in which the
plaintiffs did have such standing.78 In analogizing the injury in Abington to the
injury in Rabun County, the Rabun panel focused on the dilemma the plaintiffs in
Abington faced—“the schoolchildren were ‘subjected to unwelcome religious
exercises or were forced to assume special burdens to avoid them,’”—and
concluded “[n]o less can be said of the plaintiffs in the instant case.”79
Although the panel conceded that there might be a difference in degree of
injury, it was “unable to find any qualitative differences between the injury
suffered by the plaintiffs in [Rabun] and that which the Court found in
Abington.”80 But there is a major difference—a difference based in history. The
Abington facts fall within the type of religious oppression I have described in this
opinion. The Bible reading program that Pennsylvania legislated into its schools
77
374 U.S. 203 (1963).
78
454 U.S. at 486, 487 n.22 (citing Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203
(1963)).
79
698 F.2d at 1108 (quoting 454 U.S. at 487 n.22).
80
698 F.2d at 1108.
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smacks of the kind of establishment action that I have described in Part II of this
opinion. The law required that the Holy Bible be read every day in the classroom.
Although it may be subtle, it is still coercion, and it is not passive. That a student
could be excused from the daily reading might mitigate or soften the coercion, but
it does not end it because it left the student with only two choices: stay in class and
be proselytized by the Bible reading or suffer being ostracized or stigmatized by
leaving the room. This is not so far from the Edict of Thessalonica as it might
seem.
The Pennsylvania legislature was the sovereign, the state was the realm of
that sovereignty, and the law imposed Bible reading, the fundamental document of
the Christian faith, on all the children in the public schools no matter their creed or
faith. This is classic establishment action.
So the qualitative differences between the injuries in Rabun County and
Abington are obvious when one understands the history of religious oppression.
Plaintiffs’ injuries in Rabun County amounted to nothing more than disliking a
religious monument on public land. Whereas in Abington, the children’s parents
had to choose between allowing a public school to proselytize their children by
reading the Bible in class daily or by forcing their children to endure the stigma of
being excused from the class. The qualitative differences are multiple: (1) overt
direct government action endorsing the Christian religion in class every day versus
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a passive monument donated by a private organization; (2) public stigma
associated with removing children from their classroom versus the personal choice
of avoiding a park because it contains a cross that in no way restricts your activities
in the park; (3) the compulsory nature of sending one’s child to school versus an
adult’s decision to visit a public park on his or her free time; and (4) the
fundamental parental right to choose a child’s religious education, or lack thereof,
versus an adult’s choice to visit a park for recreation. The differences between the
harms in these two cases are clear, and there is no history that I found from the
time the Protestant Reformation began until the Bill of Rights was passed of
protecting the “right” not to see a cross.
The problem with finding that the “harm” in Rabun County is qualitatively
the same as the harm in Abington is that it authorizes standing in a case like this
one, where Plaintiffs’ only harm is feeling offended and excluded. As such, their
only injury is the psychological consequence of seeing a cross they don’t like—the
kind of injury that the Supreme Court said in Valley Forge would not create
standing.
The Pensacola cross does not stigmatize, penalize, coerce, or injure anyone,
and psychological harm alone does not satisfy the standing requirement.
Furthermore, the psychological harm claims in City of Pensacola and Rabun
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County are not the same as the religious conscience harm that the Founders wanted
to end.
As I have shown, the history of the idea of the religious conscience was
central to the history of religious freedom in early America and in Europe. But
religious conscience was not understood as separate from religious action. It was
not simply some psychological phenomenon or something that you had on your
mind. Protestants and Catholics did not fight the Wars of Religion for almost 100
years because some religious image made them feel uncomfortable, unwelcome, or
uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were
not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed,
had their ears cropped, or were divested of their property or their rights as citizens
because of their state of mind. It was because of their actions and because their
actions arose out of their religious convictions. To counter dissidents’ religious
actions, churches and governments imposed penalties, and that is what the
Establishment Clause was designed to protect against.
You can listen to this march of horrors, abuse, cruelty, and death and
recognize that it was not a walk in the park. And despite the fact that I am careful
to avoid trite statements in my orders, all this case is about is a walk in the park.
(Perhaps, because it is a walk in a public park with a cross in it, it is walking on
70
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stilts in the park, as Jeremy Bentham might say.) 81 But in Rabun County there was
not even the walk because none of the plaintiffs had ever been to the Black Rock
Mountain State Park. The fact that one of those plaintiffs might one day camp in
the park near the cross was enough for the panel to find standing, which means that
the Rabun County panel based standing on nothing more than a personal
contingency.
Some courts have lost sight of why so many fought for so long at such great
cost for religious freedom. It was not to protect people from looking at crosses in
public parks. That demeans and debases the sacrifices of millions of people. And it
is striking that the evils that were fought against for centuries and that the
Establishment Clause was designed to end have come to the place in our history to
include a cross in the public square.
And if we follow the standing ruling in Rabun County, someone who doesn’t
like a cross in a park can file suit in federal court and have it taken down. “I don’t
like it” is all that is required. Can one person in a democracy who does not like the
cross in the park trump the thousands who enjoyed the park for years with nothing
more at stake than personal dislike or annoyance? This amounts to generalized
grievances. That is not enough for standing. It has to be more than offensive.
81
“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,--
nonsense upon stilts.” Jeremy Bentham, Anarchical Fallacies (1796).
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There is no evidence of any oppression, compulsion, stigmatization, or
penalties imposed in this case or in Rabun County. No plaintiff in this case or
Rabun County was hurt, molested, or restrained, nor did they lose any personal
property or pay any tax to build or support the cross. No strife erupted in either
park. No plaintiff suffered injury. All the old evils are absent. So what has
happened to the standing requirement in Establishment Clause cases?
My review of some Establishment Clause cases leads me to suspect that
some judges, by an unwitting sleight of hand, transfer the establishment question
back to support the standing requirement. In other words, judges think they see an
establishment problem and use that to support standing even though there is no
harm. This looks like what happened in Rabun County. But when this standing
sleight of hand occurs, no matter how unwittingly, or when courts do not require
an injury for standing, the standing requirement becomes a phantom, a kind of
constitutional moonbeam—something to look at, something to talk about, but it
cannot be grasped. For example, in Rabun County, the panel found that,
because the cross is clearly visible from the porch of his summer
cabin at the religious camp which he directs as well as from the
roadway he must use to reach the camp, plaintiff Karnan has little
choice but to continually view the cross and suffer from the spiritual
harm to which he testified.82
82
698 F.2d at 1108.
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It’s not a moonbeam, but it is nothing more than a light beam. The light of
the cross “harms” him, and he is not even in the park. And the harm in this context
is “spiritual harm”—what is that if it is not abstract harm? Where does that fit in
with being burned at the stake or losing your children? Does a court have to
sanitize all of Rabun County from the light of a cross? In Rabun County, the panel
let a flyover plaintiff and a front porch plaintiff bring the full panoply of the federal
judiciary to bear on a cross simply because they didn’t like it.
Courts should not embrace unharmed plaintiffs because of an unpleasant
psychological state. As the Supreme Court explained in Valley Forge, the plaintiffs
fail to identify any personal injury suffered by them as a consequence
of the alleged constitutional error, other than the psychological
consequences presumably produced by observation of conduct with
which one disagrees. That is not an injury sufficient to confer standing
under Art. III, even though the disagreement is phrased in
constitutional terms. 83
Yet only psychological consequences provide the basis for standing in City of
Pensacola and Rabun County. Plaintiffs’ affidavits in the Pensacola case prove this
standing failure.
According to his affidavit, Plaintiff Andre Ryland has been to the park
numerous times for numerous events, including picnics and meetings at the Senior
Center, and he walks along the park trail. He seems to enjoy the park and has not
been molested, penalized, or harmed in any way or kept from his activities.
83
454 U.S. at 485.
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According to Plaintiff David Suhor’s affidavit, he rides his bike regularly in
the park, as often as twice a week, despite the fact that he first encountered the
cross in 1993. And while Suhor claims in his affidavit that he “does not wish to
encounter Bayview Cross in the future,” he recently booked the amphitheater by
the cross for his satanic ritual. That the City permitted a satanic ceremony by a
Christian cross demonstrates classic religious freedom. It also shows religious
pluralism. The City did not coerce him to do anything, and more importantly, he
was not restrained from enjoying his satanic ceremony in the exercise of his
religious freedom. Consequently, the City did not disparage or deprecate his beliefs
or dictate his behavior in the park, and the cross did not stigmatize or ostracize
him. The presence of the cross did not turn him into a religious hypocrite, which
Jefferson said was one of the results of religious oppression. Furthermore, he was
not subjected to any City-sponsored religious exercises, and if the City does
sponsor or encourage religious events at the cross, that is a separate Establishment
Clause violation. (You don’t need a cross in the park to do that.) But there is a limit
to federal court intervention.
As the Supreme Court explained in Lee v. Weisman: “We do not hold that
every state action implicating religion is invalid if one or a few citizens find it
offensive. People may take offense at all manner of religious as well as
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nonreligious messages, but offense alone does not in every case show a
violation.”84 And offense is all we have in this case and in Rabun County.
The Supreme Court further explains that “a relentless and all-pervasive
attempt to exclude religion from every aspect of public life could itself become
inconsistent with the Constitution.”85 This is what I have called “sanitizing” the
public square of all religion. That is what the plaintiffs accomplished in Rabun
County and what the plaintiffs want in this case.
Of course, just because a monument, memorial, or display is passive does
not mean that by following my coercion analysis, a district court can never find an
Establishment Clause violation involving a cross. A good example is when
someone is directly taxed for the monument like the laws in early America that
required dissenters to support churches against their conscience. 86 Likewise, any
government that coerces someone, directly or indirectly, to take certain action or
refrain from certain action because of the monument, memorial, or display would
violate the Constitution. But there is no direct or indirect injury, so there is no
redressable injury in this case. The cross does not dictate, control, or require
anything. This is clear from Plaintiffs’ affidavits.
84
505 U.S. 577, 597 (1992).
85
Weisman, 505 U.S. at 598.
86
“Absent special circumstances, however, standing cannot be based on a plaintiff's mere status
as a taxpayer.” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134, 131 S. Ct. 1436,
1442, 179 L. Ed. 2d 523 (2011).
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The second point in Judge Newsom’s concurrence that merits emphasis is
that standing rules matter. They matter because they keep the federal judiciary
from exceeding its constitutionally-mandated role. Finding that Plaintiffs have
standing here is contrary to this purpose because the Bayview Cross litigation is
precisely the sort of dispute that the courts should leave to the political process and
not let clutter the federal courts.
The Supreme Court has warned that without standing limitations “the courts
would be called upon to decide abstract questions of wide public significance even
though other governmental institutions may be more competent to address the
questions and even though judicial intervention may be unnecessary to protect
individual rights.”87 Here, there is no actual, concrete, or particularized injury, and
there is no violation of a legally protected interest. A private organization, whose
mission was non-religious, erected a cross on public property. The City of
Pensacola spends $233 per year maintaining it, or .03% of the City’s annual
maintenance budget, not the full budget, and the cross has stood for approximately
75 years with only one complaint before this law suit was filed. There is no
evidence that representatives of other religious faiths attempted to place
87
Warth v. Seldin, 422 U.S. 490, 500 (1975).
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monuments in Bayview Park but were denied by the City. 88 So the citizens of
Pensacola should decide if the cross should be removed, not the federal courts.
As Justice Goldberg eloquently stated in his concurrence in Abington:
The First Amendment does not prohibit practices which by any
realistic measure create none of the dangers which it is designed to
prevent and which do not so directly or substantially involve the state
in religious exercises or in the favoring of religion as to have
meaningful and practical impact. It is of course true that great
consequences can grow from small beginnings, but the measure of
constitutional adjudication is the ability and willingness to distinguish
between real threat and mere shadow.” 89
And this case only involves shadows.
In addition, the fact that the Bayview Cross has stood in Bayview Park for
75 years without any significant controversy further shows the lack of injury in this
case and the lack of an Establishment Clause violation. According to Plaintiffs’
own evidence, the majority of people in Pensacola feel that the cross is a cherished
monument in their community. 90 Indeed, Plaintiffs only submitted evidence of one
complaint other than those alleged in the lawsuit. Seventy-five years and only one
complaint confirms that the Bayview Cross does not cause harm sufficient to
violate the Establishment Clause.
88
Presumably such representatives would have standing to challenge the City’s actions in that
case. In Spokeo, the Supreme Court cited Pleasant Grove City v. Summum, 555 U.S. 460 (2009)
for the proposition that intangible injuries can be concrete enough to be injuries in fact. 136 S.
Ct. at 1549. In Pleasant Grove, the City denied a religious organization’s request to donate and
erect a monument in a park where a Ten Commandments monument was already erected. 555
U.S. at 465-66.
89
374 U.S. at 308 (Goldberg, J., concurring).
90
Pl.’s Mot. for Summary Judgment, Doc. 31, Ex. 15. p. 247-52.
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Moreover, “the principle that the passage of time can preclude relief has
deep roots in our law, and this Court has recognized this prescription in various
guises.”91 Although this language comes from a case involving laches, and not the
Establishment Clause, the analogy is sound. “It is well established that laches, a
doctrine focused on one side's inaction and the other's legitimate reliance, may bar
long-dormant claims for equitable relief.” 92 I am not suggesting we apply the
laches doctrine to preclude relief in this case or that it is a defense; however, the
longstanding history of the Bayview Cross gives us further evidence that there is
no injury, and therefore, no standing for Article III jurisdiction. In a sense, the
laches concept works with the coercion test to answer the standing question, and
history is important.
The Supreme Court has recognized the importance of history in determining
whether some government action violates the Establishment Clause. In Marsh v.
Chambers, the Court said that while “no one acquires a vested or protected right in
violation of the Constitution by long use,” “an unbroken practice ... is not
something to be lightly cast aside.”93 In Lynch v. Donnelly, although the Court did
not base its no-violation finding on history, it noted that the crèche at issue had
91
City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 217 (2005).
92
Id.
93
463 U.S. 783, 790 (1983) (quoting Walz, 397 U.S. at 678).
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been included in the Christmas display for 40 years or more. 94 More recently, in
Van Orden, Justice Breyer emphasized in his concurrence the importance of the
fact that the Ten Commandments display had “stood apparently uncontested for
nearly two generations” in finding that it did not violate the Establishment
Clause.95 In Salazar v. Buono, the Court noted that the cross at issue “had stood on
Sunrise Rock for nearly seven decades,” and that “the cross and the cause it
commemorated had become entwined in the public consciousness.” 96 And most
recently, in Town of Greece, the Court stated that “the Establishment Clause must
be interpreted by reference to historical practices and understandings.” 97
The Bayview Cross is embedded in the fabric of the Pensacola community.
It is rooted in Pensacola’s history. If the cross is a problem, it is only a local
problem, not a constitutional problem. As Justice Thomas stated in his concurrence
in Van Orden, “[t]his Court's precedent elevates the trivial to the proverbial
‘federal case,’ by making benign signs and postings subject to challenge.” 98 So the
75-year history of the Bayview Cross is another reason its fate should be left to the
local government. And now I finish this part of my opinion explaining the
Supreme Court’s ruling in Town of Greece.
94
465 U.S. 668, 671 (1984).
95
Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J. concurring).
96
559 U.S. 700, 716 (2010).
97
Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1819 (2014).
98
Van Orden, 545 U.S. at 694 (Thomas, J. concurring).
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Town of Greece is important because the plaintiffs’ complaints in that case
sound like the complaints about the Bayview Cross, and also because the Court
used history as a guide and discussed the element of coercion. I focus on the
coercion analysis. In that case the town supervisor invited a member of the local
clergy to deliver an invocation at the beginning of every town board meeting. The
prayers were mostly Christian prayers because most of the churches in the
community were Christian.
The plaintiffs in Town of Greece went to the town meetings to talk about
local issues, not for recreation. One plaintiff complained that the prayers were
“offensive,” “intolerable,” and “an affront to a diverse community.” 99 The
plaintiffs also contended that the prayers were coercive. More specifically they
argued that,
[t]he setting and conduct of the town board meetings create social
pressures that force nonadherents to remain in the room or even feign
participation in order to avoid offending the representatives who
sponsor the prayer and will vote on matters citizens bring before the
board. The sectarian content of the prayer compounds the subtle
coercive pressures, they argue, because the nonbeliever who might
tolerate ecumenical prayer is forced to do the same for prayer that
might be inimical to his or her beliefs.100
The Court considered the plaintiffs’ coercion argument and observed that the
government cannot coerce or compel a citizen “to support or participate in any
99
134 S. Ct. at 1817.
100
Id. at 1820.
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religion or its exercise.” 101 But the Court went on to say that “on the record in this
case the Court is not persuaded that the town of Greece, through the act of offering
a brief, solemn, and respectful prayer to open its monthly meetings, compelled its
citizens to engage in a religious observance.”102 That the prayers made the
plaintiffs feel excluded and disrespected and gave them offense does not equate to
coercion.103 As the Court explained:
Offense, however, does not equate to coercion. Adults often encounter
speech they find disagreeable; and an Establishment Clause violation
is not made out any time a person experiences a sense of affront from
the expression of contrary religious views in a legislative forum,
especially where, as here, any member of the public is welcome in
turn to offer an invocation reflecting his or her own convictions. 104
In concluding the opinion, the Court said that “neither choice represents an
unconstitutional imposition as to mature adults, who ‘presumably’ are ‘not readily
susceptible to religious indoctrination or peer pressure.’” 105Plaintiffs did not ask
the court to stop; they wanted non-sectarian prayers, specifically non-Christian.
Although Town of Greece did not involve a standing issue, the case supports
the proposition that there has to be more than personal complaints to support
standing. That is all that there is in this case, which leads to the conclusion that
Rabun County and City of Pensacola were wrongly decided.
101
Id. at 1825.
102
Id.
103
Id. at 1826.
104
Id. at 1827.
105
Id.
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CONCLUSION
Federal courts are courts of limited jurisdiction, precluded from considering
certain cases and certain issues. The jurisdictional standing requirement is a
Constitutional limitation just as the amount in controversy requirement in diversity
requirement is a Congressional limitation. These limitations stand for the
fundamental proposition that there are certain matters a federal court has no
business deciding. The legality of a cross in a city park is one such issue. The
doctrines of federalism and separation of powers counsel that this case does not
belong in federal court.
82
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728 S.W.2d 242 (1987)
Gail F. SPOTTS, John E. Spotts and Mildred Spotts, Appellants,
v.
CITY OF KANSAS CITY, Missouri, et al., Defendants.
No. WD 37840.
Missouri Court of Appeals, Western District.
February 17, 1987.
Motion for Rehearing and/or Transfer to Denied March 31, 1987.
Application to Transfer Denied May 19, 1987.
*244 Don B. Roberson, Kansas City, for appellants.
Richard N. Ward, City Atty., Jeffrey L. Hess, Asst. City Atty., Kansas City, for defendant City of Kansas City, Mo.
William L. Webster, Atty. Gen., Theodore L. Bruce, Asst. Atty. Gen., Jefferson City, for defendants Trooper T. L. Gray and Missouri State Highway Patrol.
Russell D. Jacobson, Kansas City, for defendants Kansas City Bd. of Police Commissioners and Officer Steven A. Wildman.
Thomas J. Cox, Kansas City, for defendant Sun Restaurants.
Sylvester Powell, Jr., Heilbron & Powell, Kansas City, for defendant Farmers Ins. Co.
Before GAITAN, P.J., and DIXON and TURNAGE, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 31, 1987.
GAITAN, Presiding Judge.
This is a civil action for money damages brought by plaintiffs-appellants, Gail F., John E. and Mildred Spotts against defendants-respondents, City of Kansas City, Missouri, T.L. Gray, The Missouri State Highway Patrol, Steven A. Wildman, The Board of Police Commissioners of Kansas City, Missouri, Sun Restaurants, Inc., Farmers Insurance Company, Inc., Mark Cecil and two other defendants, James Pruetting and Ernest Block. The latter two defendants settled before trial. The remaining aforementioned defendants, with the exception of Mark Cecil, filed motions to dismiss, which were sustained. Plaintiffs therefore went to trial only against Mark Cecil and received judgment in the amount of $5,200,000.00. Cecil did not appeal. Plaintiffs now appeal the trial court's dismissal of the aforementioned defendants. The judgment of the trial court is affirmed.
STATEMENT OF FACTS
This action arises out of an automobile accident that occurred on December 22, 1978. Plaintiff Gail F. Spotts was a passenger in a car driven by James N. Pruetting which was rear-ended by a van driven by Mark Cecil. As a result of the accident, Gail Spotts was rendered a paraplegic.
On the evening of the accident, Mark Cecil was a patron at defendant Sun Restaurants, Ltd. Plaintiffs allege that Sun continued to serve Cecil alcoholic beverages after he became intoxicated. Cecil drove his van from the bar and was stopped by Missouri Highway Patrolman, T.L. Gray, approximately 15 minutes before the accident. Gray ordered Cecil into the trooper's car. Defendant Gray issued Cecil a citation for driving with expired license plates and then released him from custody, notwithstanding the fact that Cecil allegedly was in an obviously intoxicated condition. Thereafter, Cecil drove toward the scene of the accident.
Approximately 15 minutes before the accident, there was another accident on N.E. 48th Street involving Ernest Block and William Wurtz. The Block vehicle rear-ended the Wurtz vehicle, causing the Wurtz vehicle to flip over on its side blocking the roadway at the bottom of a hill on N.E. 48th Street. This accident occurred at 7:30 p.m.
Defendant Steven A. Wildman, a Kansas City, Missouri policeman, responded to the scene of the Wurtz accident and immediately placed flares and barricaded N.E. 48th Street east of the Wurtz accident on the top of the hill. However, defendant Wildman did not barricade N.E. 48th Street west of the Wurtz accident, or place any flares to warn eastbound traffic that the obstruction was blocking traffic and causing a back up of approaching vehicles.
Pruetting drove his car eastbound on N.E. 48th Street and, after cresting the hill, he stopped west of the Wurtz accident. While Pruetting was stopped in traffic, the Cecil vehicle came over the hill and rear-ended the Pruetting vehicle. As a result, *245 plaintiff Gail F. Spotts sustained disabling injuries, causing her to be a paraplegic. This accident occurred at approximately 7:43 p.m. (13 minutes after the first accident).
The plaintiffs' claims against the defendants[1] may be summarized as follows:
1. City of Kansas Negligence in failing to remove
City, Missouri or barricade the obstruction
to traffic on N.E. 48th
Street.
2. Trooper T.L. Gray Negligence in releasing Cecil
from custody while in an intoxicated
state.
3. Missouri State Liability for Gray's negligence
Highway Patrol under theory of respondeat
superior.
4. Police Officer Steven Negligence in failing to barricade
A. Wildman or warn of the obstruction
to traffic on N.E. 48th
Street.
5. The Board of Police Liability for Wildman's negligence
Commissioners under theory of respondeat
of Kansas City, superior.
Missouri
6. Sun Restaurants, Negligence in serving alcoholic
Ltd. beverages to an obviously
intoxicated person.
7. Farmers Insurance Breach of contract in refusing
Company, Inc. to pay medical pay coverage
under both policies of insurance.
The defendants filed separate motions to dismiss or for summary judgment primarily based upon the following grounds:
1. City of Kansas Sovereign immunity.
City, Missouri
2. Trooper T.L. Gray Public duty doctrine.
3. Missouri State Sovereign immunity.
Highway Patrol
4. Officer Steven A. Official immunity.
Wildman
5. Board of Police Sovereign immunity.
Commissioners
6. Sun Restaurants, Carver v. Schafer, 647 S.W.2d
Ltd. 570 (Mo.App.1983), is not retroactive.
Our discussion of the issues will be by category as they apply to the defendants herein.
SOVEREIGN IMMUNITY
In 1978, § 537.600 RSMo was enacted to provide public entities with such sovereign immunity as existed at common law prior to September 12, 1977,[2] "except to the extent waived, abrogated or modified by statutes," and with the following two exceptions: (1) injuries resulting from negligent operation of motor vehicles by public employees, and (2) injuries resulting from the dangerous condition of a public entity's property.[3]
With this in mind, we consider plaintiffs' claims against each defendant.
1. K.C. Missouri
Under common law as it existed prior to September 12, 1977, a municipality *246 was immune from suit only for the negligent performance of its governmental as distinguished from its proprietary functions. See Burke v. City of St. Louis, 349 S.W.2d 930, 931 (Mo.1961). Plaintiffs claim that the City had a duty to keep its streets in a reasonably safe condition, free of obstructions. A breach of this duty is not protected by sovereign immunity. See German v. Kansas City, 512 S.W.2d 135, 142 (Mo. banc 1974), quoting, Myers v. City of Palmyra, 355 S.W.2d 17, 18-19 (Mo.1962). On the other hand, the regulation of traffic is a governmental function, the negligent execution of which is protected by sovereign immunity. See Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961).
In this case, the obstruction in the street was the emergency vehicles and the aftermath of the first accident, which police were attempting to remove. The essence of plaintiffs' claim is that the City allegedly failed to redirect and regulate traffic to avoid the obstruction resulting from the first accident. It is not the obstruction itself, that plaintiffs allege caused the second accident involving Gail Spotts. We feel, therefore, that plaintiffs' claim is more analogous to the cases involving regulation of traffic than to the cases involving obstructions in the street. See e.g., Watson v. Kansas City, 499 S.W.2d 515 (Mo. banc 1973); Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961). Regulating traffic at the scene of an accident is a governmental act which the City performs for the common good of all. We therefore hold that the City is protected by sovereign immunity.
2. Missouri State Highway Patrol (MSHP)
Plaintiffs' claims against MSHP is based on respondeat superior for the alleged negligence of Trooper Gray in permitting Cecil to drive in an intoxicated condition. Plaintiffs argue that the sovereign immunity of MSHP has been statutorily waived by § 105.710(5) RSMo Cum.Supp. 1982 (repealed) which reads as follows:
To the extent the provisions of this section allow a monetary recovery against the state of Missouri, the doctrine of sovereign immunity is waived, but to no greater extent.
Although this statute was repealed in 1983, plaintiffs contend that it should be applied retroactively against MSHP. Plaintiffs argue that Art. I § 13 of the Missouri Constitution prohibiting retroactive application of new statutes protects only citizens and does not protect the state. This issue was decided adverse to plaintiff's position in State Ex. Rel. Missouri Highway v. Appelquist, 698 S.W.2d 883, 898 (Mo.App. 1985). There it was held that § 105.710 was not to be applied retroactively. Consequently, MSHP is protected by sovereign immunity.
3. Board of Police Commissioners
Plaintiffs claim that the Board is liable under respondeat superior for the negligence of its officer, Steven Wildman, in not removing, barricading or warning of the obstruction to traffic on N.E. 48th Street. Plaintiffs claim that the Board waived its sovereign immunity pursuant to §§ 71.185 and 537.600(1) RSMo 1978 by purchasing liability insurance. The Board admits that it did have automobile liability insurance, but no liability insurance for tort claims. Plaintiffs argue that their claim arises out of the use, operation and maintenance of Wildman's automobile since he failed to use his vehicle to barricade traffic.
Section 71.185.1 RSMo provides in part:
Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefore to insure such municipality and their [sic] employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions ...
Initially we note that any waiver of sovereign immunity should be construed strictly. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). Section 71.185.1 applies only to "municipalities." In Beiser v. Parkway School Dist., 589 S.W.2d 277, 280 (Mo. banc 1979), the court held that a *247 school district is not a "municipality" within the meaning of § 71.185 RSMo stating:
While a municipality may be a municipal corporation ... not all municipal corporations are municipalities. (citation omitted) Even assuming that a school district may be a municipal corporation for certain limited purposes, it does not follow that a school district is, therefore, a "municipality" for the purposes of the statute [§ 71.185] in question.
Beiser, at 280.
Although the Board may provide police protection for the municipality of Kansas City, it continues to be obligated, as a legal subdivision of the state. See State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 514 (1955) ("The statutes creating the board of police commissioners of Kansas City ... expressly retain jurisdiction of the Kansas City police system as an agency of the State.") We find that although the Board may provide services for the municipality, it is not a "municipality" within the meaning of § 71.185.
Further, even if the Board were a "municipality," we do not believe that the Board waived its immunity for tort claims such as plaintiffs' by purchasing automobile insurance. We cannot stretch so far as to agree with plaintiffs' contention that their claim arises out of the use, operation and maintenance of Wildman's police car.
Similarly, we do not agree with plaintiffs' contentions that sovereign immunity has been waived pursuant to § 537.600(1). Neither the Board nor Wildman is charged with negligently operating a motor vehicle. The Board is charged upon a theory of respondeat superior with Wildman's alleged negligence in not barricading, removing or warning of the obstruction to traffic caused by a traffic accident. We hold that there is no waiver of sovereign immunity under §§ 71.185 or 537.600(1) RSMo by the Board's purchase of automobile insurance.
PUBLIC DUTY
Under the public duty doctrine, public employees are not liable to individuals for injuries resulting from breach of a duty owed to the general public. Berger v. City of University City, 676 S.W.2d 39, 41 (Mo. App.1984). See Sherrill v. Wilson, 653 S.W.2d 661, 669 (Mo. banc 1983). With this brief introductory explanation of the public duty doctrine in mind, we consider its application to the defendants herein.
1. T.L. Gray
Plaintiffs allege that Gray, in performing his duties as a Missouri State Highway patrolman, stopped Cecil within 15 minutes before the auto accident involving Gail Spotts. Gray ordered Cecil into the patrol car and gave him a ticket for driving with expired license plates. Gray then released Cecil, allowing him to drive, in what plaintiffs contend was, an "obviously intoxicated condition." Plaintiffs claim that Gray was negligent in failing to detect that Cecil was intoxicated and allowing him to operate an automobile in such condition.
In failing to arrest Cecil or prevent him from driving while allegedly intoxicated, Gray was performing his duties as a highway patrolman. The duty to enforce the laws prohibiting drunk driving is a duty owed to the general public. See Berger, 676 S.W.2d at 41; Parker v. Sherman, 456 S.W.2d 577 (Mo.1970).
Plaintiffs attempt to avoid the public duty doctrine by arguing that Gray owed a duty to "a special, particular and identifiable class of persons", i.e.) persons traveling on N.E. 48th Street on the evening of December 22, 1978. Plaintiffs are asking this court to apply the "special duty" exception. However, Missouri has not recognized this exception. Berger, 676 S.W.2d at 41; Lawhon v. City of Smithville, 715 S.W.2d 300, 302 (Mo.App.1986).
In Jamierson v. Dale, 670 S.W.2d 195 (Mo.App.1984), plaintiff's son fell from a seesaw at Dale's Academy where he was enrolled in pre-school. A regulation of the Missouri Division of Family Services required licensed day care centers, such as Dale's, to surface the area under playground equipment with a resilient material. Dale's did not comply with this regulation. *248 The plaintiff sued the employee of the Division of Family Services whose duty it was to inspect day care centers for compliance with the licensing regulations. The defendant observed that the area under the seesaw was not of a resilient material, but she recommended issuance of a license to Dale's Academy anyway. The plaintiff argued for application of the "special duty" exception, but the court rejected it, stating:
The statutes and regulations here involved, insofar as they place a duty of enforcement upon defendant Halcheck, prescribe a duty to the public at large. Plaintiffs argue that the statutes and regulations here involved were meant for the benefit of a limited class, namely, children attending day care centers, and that defendant Halcheck's duties ran to that limited class rather than to the public at large. They attempt by this argument to take this case out of the public duty rule.
Defendant Halcheck's duty, however, was not to that discrete class of children attending day care centers. It may be that violation of the regulation by Dale's Academy would be evidence of negligence in a suit against it for injuries to a child attending the Academy. (citations omitted) But that is not to say that the duty of inspection and enforcement placed upon defendant Halcheck was a duty running toward the same limited class. Her duty was not to the children; it was to her employer, the State of Missouri. It was a public duty, a duty to the public at large.
Jamierson, at 196.
We agree with the reasoning of Jamierson and hold that any duty Gray may have had to prevent Cecil from driving while intoxicated was a duty owed to the general public. Therefore, Gray is not liable to plaintiffs for any alleged breach of this duty.
2. Steven Wildman
The same reasoning which supports application of the public duty doctrine to Gray is applicable to Wildman as well. Wildman's alleged duty to set up barricades or to warn of an obstruction to traffic was a duty to the general public. Wildman is not liable to plaintiffs for failure to fulfill this alleged duty.
Plaintiffs argue that because Wildman did not raise the public duty doctrine in the trial court, he has waived it. We disagree. In order for plaintiffs to recover under Missouri law for negligence, they must show a duty to them was breached. Nelson v. Freeman, 537 F.Supp. 602, 607 (8th Cir.1983) aff'd, Nelson v. Missouri Div. of Family Serv., 706 F.2d 276 (8th Cir.1983). "A citizen has no cause of action for injuries sustained as the result of an alleged breach of public duty to the community as a whole." Christine H. v. Derby Liquor Store, 703 S.W.2d 87, 79 (Mo.App.1985). See also Lawhon v. City of Smithville, 715 S.W.2d 300, 302 (Mo. App.1986). Failure to state a cause of action is a jurisdictional issue which may be raised any time, even on appeal. Eilers v. Kodner Dev. Corp., 513 S.W.2d 663, 665 (Mo.App.1974).
OFFICIAL IMMUNITY
We need not engage in a discussion of official immunity here because the above-referenced defendants have the defenses of sovereign immunity or the public duty doctrines which act as a complete bar.
LIABILITY OF BAR FOR SELLING ALCOHOL TO AN INTOXICATED PERSON
Plaintiffs seek to recover from respondent Sun Restaurants Ltd. Inc. (hereinafter "Sun"), on the basis that Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983), should be given retrospective effect. We disagree.
In Sumners v. Sumners, 701 S.W.2d 720 (Mo. banc 1985), the Court stated that the following three factors should be considered in deciding that a judicial decision should be given prospective-only effect:
1. Does the decision establish a new principle of law;
2. Will the purpose and effect of the new rule be enhanced or retarded by retroactive application;
*249 3. What hardship will result to parties who relied upon the old rule if the new rule is applied retroactively?
Sumner at 724.
With regard to the first element, it is clear that Carver did set forth a new principle of law. At the present time, and at the time of the injuries sustained by Gail Spotts in December of 1978, Missouri did not have a Dram Shop Act. Missouri is a common law state. See § 1.010 RSMo (1986). At common law, the rule is that a tavern owner is not liable for injuries inflicted upon a third person by an intoxicated patron of that tavern. Alsup v. Garvin-Wienke, Inc., 579 F.2d 461, 463 (8th Cir. 1978); § 537.053 RSMo 1986.
Plaintiffs argue that Carver's holding was clearly foreshadowed by Moore v. Riley, 487 S.W.2d 555 (Mo.1972). Moore involved a suit by a patron of a tavern against the tavern operator for injuries sustained when a minor, Miss Riley, who had been in the tavern, approached the patron outside the tavern and threw a glass in his face. The Moore court noted that the plaintiff had no evidence that the Miss Riley was intoxicated. The court stated:
In view of ... the absence of effort at any time to amend the petition to state a claim based upon unlawful consumption of intoxicants by Miss Riley at the End Zone, the question of liability upon such basis was not presented in the trial court and it will not be considered here as a possible separate basis for liability. (emphasis added)
Moore, at 558-59.
We find that the Moore court's express refusal to consider the issue cannot be construed as approval of a theory of civil liability of tavern owners to third parties injured by intoxicated persons served by the tavern owners. We find that Carver unexpectedly set forth a new principle of law in Missouri.
With regard to the second element, retrospective application of Carver would not further the purpose of that decision. Carver clearly attempted to establish a duty for tavern owners to exercise ordinary care for the safety of others. Specifically, that court stated that tavern owners have a duty to refrain from serving alcoholic beverages to obviously intoxicated patrons. The reason for imposing this duty was to deter tavern owners from acting in a manner which would contribute to automobile accidents. No deterrent effect can take place in this case by applying a new rule to an incident which occurred approximately five years before that rule was established.
With respect to the final element, retrospective application of Carver would produce substantially inequitable results. At the time the collision occurred, respondent Sun was protected by the law in that no Dram Shop Act existed. Further, the common law rule which was in effect was that a tavern owner was not liable for injuries to a third person caused by one of its patrons. Therefore, even assuming for the sake of argument that respondent Sun did serve alcoholic beverages to Cecil when he was in an intoxicated condition, it would be inequitable to punish respondent Sun for actions which were clearly protected by the law at the time. See e.g., Keltner v. Keltner, 589 S.W.2d 235, 240-41 (Mo. banc 1979).
Most importantly, the policy of the State of Missouri has clearly been expressed in § 537.053 RSMo 1986, wherein it is stated:
1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010 RSMo to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
2. The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the *250 consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person. (emphasis added)
Clearly, this court should not promote Carver by applying the decision retroactively when the legislature has abrogated the decision.
STACKING OF MEDICAL CLAIMS
Plaintiff Gail Spotts seeks to recover under the medical benefits provision of two policies of insurance issued by defendant Farmers Insurance Company. Farmers paid plaintiff the limits of the uninsured motorist coverage on each policy. Farmers also paid plaintiff Gail F. Spotts the sum of $5,000.00 for medical benefits under policy number 14 2658 96 62, but has refused to pay any medical benefits under policy number 14 2891 30 26 because of Condition 8 of the policy. Condition 8 of those policies reads as follows:
CONDITION 8. OTHER INSURANCE IN THE COMPANY.
With respect to any occurrence, accident, death, or loss to which this and any other insurance policy or policies issued to the insured by the Company also apply, no payment shall be made hereunder which, when added to any amount paid or payable under such other insurance policy or policies, would result in a total payment to the insured or any other person in excess of the highest applicable limit of liability under any one such policy.
Authority for Farmer's position is supplied in the case of Farm Bureau Town & Country Ins. Co. v. Hughes, 629 S.W.2d 595 (Mo.App.1981). In that case, the insured's (Hughes) minor son was injured in a one-vehicle accident. Hughes had three policies of insurance with Farm Bureau, each containing medical pay coverage. The company paid medical pay limits of the higher policy ($5,000.00), but refused to pay the limits of the other two policies ($2,000.00 each), and filed a declaratory judgment action. Those policies contained a provision very similar to Condition 8 of the Farmers' policy. That condition read as follows:
OTHER AUTOMOBILE INSURANCE IN THE COMPANY.
With respect to any occurrence, accident, death, or loss to which this and any other automobile insurance policy issued to the named insured or spouse by the company also applies, the total limit of the Company's liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.
Hughes argued that the condition was ambiguous in that it could be construed to limit liability to the combined limit of all coverages under any one policy. Hughes, at 596. The court held that the condition quoted above was not ambiguous, and that it barred stacking of medical payments coverage. Hughes, at 597.
Plaintiff likewise argues that Condition 8 of the policy is ambiguous, but for different reasons than those asserted by the plaintiff in Hughes. She argues that Condition 8 may be construed as only preventing the stacking of liability insurance coverage and uninsured motorist coverage since it only refers to the "liability limits" of the policy. Plaintiff asserts that medical payments are not considered to be a liability section of the policy and that recovery of such benefits is independent from any consideration of liability of the insured. Therefore, she contends that the words "limit of liability" in Condition 8 does not refer to medical payments. Plaintiff distinguishes the policy at issue in Hughes on the ground that the condition therein specifically referred to "limit of liability or benefit amount." Plaintiff relies on Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976), for the proposition that language in the policy must specifically prohibit stacking of medical benefits and not just liability.
We disagree with plaintiff's argument. First, the holding in Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976), did not turn on a failure of the policy to specifically prohibit stacking of medical benefits, but on a failure to specifically *251 prohibit stacking. The court stated that "it is possible to clearly and explicitly spell out an intention to limit liability to single coverage * * * That, however, has not been done in this case." Madden, at 547. See also Hempen v. State Mut. Auto. Ins. Co., 687 S.W.2d 894, 895 (Mo. banc 1985).
Consistent with the reasoning of Madden, the Hughes court held that the policy at issue there was "clear and explicit in its intention." We hold that the present policy is likewise "clear and explicit in its intention."
It is not crucial that Condition 8 merely refers to "limit of liability." The words "limit of liability" are not the same as "limit of liability coverage." The term "limit of liability" as used in Condition 8 simply means the maximum monetary amount for which the company is liable for any particular coverage provided in the policy. It is a term employed in Part I, Coverage A and Bliability coverage; in Part II, Coverage C, Uninsured Motorist Coverage; in Part III, Coverages D and EMedical Expense Insurance, and again under Coverage H. Each of those sections of the policy has a heading "Limit of Liability". Moreover, under the heading "Conditions", the policy states that "[c]onditions 1 to 9 and 14 to 16 apply to all coverages." Condition 8 states unequivocally that stacking of these coverages with other policies of the company is forbidden. The words "highest applicable limit of liability under any one such policy" must be given a reasonable interpretation and when read in conjunction with the other provisions of the policy there is no ambiguity.
The rule is firmly established in Missouri that insurance policies, like other contracts, must be given reasonable interpretation, and in construing the terms of the policy, the courts discharge their duty when they ascertain the intention of the parties as disclosed by the contract they have entered. Plain and unambiguous language must be given its plain meaning and this rule applies to restrictive provisions in insurance contracts. State Farm Mut. Auto. Ins. Co. v. Thomas, 549 S.W.2d 616, 617-18 (Mo.App.1977). We find plaintiff's argument to be without merit.
Plaintiff argues that the court must consider the reasonable expectations of the parties by looking at the full circumstances of the transaction, rather than merely looking at the words of the insurance contract because the insurance policy is an adhesion contract. Plaintiff relies upon Estrin Constr. Co., Inc. v. Aetna Casualty & Surety Co., 612 S.W.2d 413 (Mo.App.1981), and Spychalski v. MFA Life Ins. Co., 620 S.W.2d 388 (Mo.App.1981) in support of her argument.
Under the reasonable expectations analysis, a contract contains terms not within the reasonable expectations of the parties if the other party has reason to believe that the adhering party would not have accepted the agreement if he had known that the agreement contained the particular term. Estrin, 612 S.W.2d at 426.
Plaintiff argues that had Mr. and Mrs. Spotts known and understood that they would not receive any medical benefits under the second policy, they would not have agreed to pay the premium on the second policy. Therefore, plaintiff argues that Condition 8 is not within the reasonable expectations of Mr. and Mrs. Spotts.
Each policy covered a separate automobile. The medical expense provision of the policy provides:
"To pay all reasonable expenses incurred within one year from the date of accident for necessary medical services.
(D) to or for the named insured or a relative who sustains bodily injury caused by accident,
(1) While occupying the described automobile or a non-owned automobile provided the actual use of such automobile is with the permission of the owner, or * * *"
While plaintiff could collect medical payments while riding in a non-owned vehicle, she could not collect medical payments for an injury suffered while riding in an owned vehicle unless there was a policy on the owned vehicle so occupied. Surely plaintiff would want to collect medical payments if injured in either of the owned vehicles and *252 to do so, she had to have medical payments coverage on each car.
Condition 8 of the Farmer's policy is not ambiguous and is valid and enforceable.
The judgment of the trial court is affirmed.
All concur.
NOTES
[1] Plaintiffs' Amended Petition was in five counts. Count I was by Gail Spotts against all defendants except Farmers' Insurance Co. for negligence. Count II was by Gail Spotts against Gray, Wildman, the City of Kansas City, the Missouri State Highway Patrol and the Board of Police Commissioners under 42 U.S.C. § 1983. Count III was by Gail Spotts against Farmers' Insurance Co. for wrongfully refusing to make medical benefits payments under an automobile insurance policy. Count IV was by Gail's parents, John and Mildred Spotts against all defendants except Farmers' Insurance Co. for medical expenses incurred in caring for Gail, for mental distress, and for loss of society, companionship, and services of Gail. Count V was Jon and Mildred Spotts against Gray, Wildman, the City of Kansas City, the Missouri State Highway Patrol, and the Board of Police Commissioners apparently under 42 U.S.C. § 1983. However, Plaintiffs have alleged error only in the trial court's dismissal of plaintiffs' negligence claims and Gail's claim against Farmers' Insurance.
[2] At common law a state and its political subdivisions are immune from suit for negligence. See O'Dell v. School Dist. of Independence, 521 S.W.2d 403 (Mo. banc 1975).
[3] In Bartley v. Special School District of St. Louis, 649 S.W.2d 864, 868 (Mo. banc 1983) the court held that sovereign immunity was waived under the two exceptions of § 537.600 only when the public entity had purchased liability insurance. In 1985, § 537.600 was amended to provide that sovereign immunity is waived under the two exceptions listed regardless of whether the public entity is covered by insurance. In State ex. rel. Missouri Hwy. & Transp. Comm'n v. Appelquist, 698 S.W.2d 883, 898 (Mo. App.1985), however, the court determined that that 1985 amendment was not intended to be retroactive.
The automobile accident which gave rise to plaintiff's injuries in this case occurred on December 22, 1978, after the effective date of § 537.600 RSMo 1978. The judicial construction of the statute by the Missouri Supreme Court in Bartley became, in effect, part of the text of the statute. Anderson v. State, 709 S.W.2d 893, 896 (Mo.App.1986). Therefore, public entities are vested with sovereign immunity under § 537.600, as interpreted by Bartley, for actions accruing prior to the effective date of the 1985 amendment. Anderson, at 896.
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54 F.3d 782
A.L. Carterv.IA State Prison
NO. 95-1127
United States Court of Appeals,Eighth Circuit.
Feb 03, 1995
Appeal From: S.D.Iowa, No. 94-CV-80798
1
AFFIRMED.
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847 S.W.2d 707 (1993)
312 Ark. 123
ROUTH WRECKER SERVICE, INC. and John Ransom d/b/a Red Oak Auto Clinic, Appellants,
v.
M.C. WINS, Appellee.
No. 92-984.
Supreme Court of Arkansas.
February 22, 1993.
Robert A. Newcomb, John Ransom, Little Rock, for appellants.
*708 Winston Bryant, Atty. Gen., Little Rock, for appellee.
DUDLEY, Associate Justice.
This case requires us to construe statutes that relate to the ownership of a stolen car. On May 11, 1990, Connie and Shirley Aday of Russellville sold their jointly owned 1976 Cadillac automobile to Car Brokers, who, in turn, sold the car to M.C. Wins, a used car dealer. Wins testified that he paid $2,400.00 for the car and took an open title. He explained that this meant Car Brokers signed the certificate of title as the seller but did not list Wins as the buyer. Instead, the space for the name of the buyer recited "first re-assignment by licensed dealer only." Wins testified that he did not register the transfer of ownership with the Commissioner of Revenues of the Department of Finance and Administration because a registered car dealer is not required to do so. Wins parked the car on his used car lot located on West Roosevelt Road in Little Rock, where he and a partner do business under the name of Nelson Auto Sales. The car was stolen from the lot on May 18, 1990, and Wins's partner immediately notified the Little Rock Police Department. The police department prepared an information report on the stolen car.
The Little Rock Police Department recovered the car the next day, May 19, but Wins was not notified. The police called Routh Wrecker Service, Inc. and had that company tow the car to a secure area and impound it. The City of Little Rock and Routh Wrecker have a contract under which Routh Wrecker performs such services. The Little Rock Police Department apparently overlooked its information report because it only informed Routh Wrecker that Connie and Shirley Aday were the registered owners of the car. Routh Wrecker asked the Arkansas State Police whether the car was stolen, but that agency responded that it did not have a report of the car being stolen. Routh Wrecker sent a notice to the Adays that the car had been recovered and they could redeem it by paying the towing and storage charges authorized under Ark.Code Ann. § 27-50-1101 (Supp.1991). The Adays did not redeem the car and notice of a proposed sale of the car to pay the charges was sent to the Adays. A notice of sale was published on August 3 and 17, 1990.
John Ransom, doing business as the Red Oak Auto Clinic, purchased the car at public auction for $1,650.00. On January 2, 1991, the Commissioner of Revenues issued a certificate of title reflecting the Red Oak Auto Clinic as owner of the car.
Some months later, Wins was sitting in his office on West Roosevelt Road and saw a car that looked like the stolen car being driven into the McDonalds restaurant next door. Wins still had the keys to the car. He took the keys and walked over to the car. The keys fit the door lock, and he unlocked the car. He then tried the ignition key, but it would not work. He went inside the restaurant and asked who owned the car outside. A lady said it was hers. Wins called the police. The lady was allowed to drive the car away.
Wins filed this suit for replevin. The trial court ruled that Wins was entitled to possession of the car. Routh Wrecker Service, Inc. and John Ransom, doing business as Red Oak Auto Clinic, appeal. The ruling of the trial court was correct and, accordingly, we affirm.
At common law our general rule was that title to stolen property remains in its rightful owner. In Superior Iron Works v. McMillan, 235 Ark. 207, 357 S.W.2d 524 (1962), we said this common law rule is now embodied in Ark.Code Ann. § 16-80-103(a) (1987), which provides: "All property obtained by larceny, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to the property."
Appellants, Routh Wrecker and John Ransom, contend that Ark.Code Ann. §§ 27-50-1101 to -1102 and 27-50-1201 to -1210 (Supp.1991) have implicitly amended the common law rule now embodied in Ark.Code Ann. § 16-80-103.
*709 The first of the two above cited statutes, which appellants contend have implicitly amended our statutory law, is Ark.Code Ann. § 27-50-1101. It provides that when a car is found abandoned on public property, a towing-storage firm may be requested to take possession of and store the abandoned car. After so doing, the towingstorage firm shall notify the last known registered owner that he or she may reclaim the car by paying all towing and storage charges. If the owner does not reclaim the car, the towing-storage firm may sell the car at public auction, deduct its charges, and, if the owner is not located, pay the remainder over to the State Highway and Transportation Department. The second of these statutes, Ark.Code Ann. § 27-50-1201, is similar in the material part, but adds that the towing-storage firm that removes an abandoned vehicle pursuant to a contract with a law enforcement agency, obtains a possessory lien on the car, and may foreclose that lien and the successful bidder at the foreclosure sale may obtain title to the car. This act provides that an "abandoned" car is one that is left unattended and "to which the owner has overtly manifested some intention not to retake possession." Ark.Code Ann. § 27-50-1202(b)(1) (emphasis added).
A maxim of statutory construction is that implied repeals of statutes are not favored. Arnold v. City of Jonesboro, 227 Ark. 832, 302 S.W.2d 91 (1957). The General Assembly will not be held to have changed a law that it did not have under consideration unless the terms of the subsequent act are so inconsistent with the prior law that the two cannot stand together. Id. Here, the acts are not so inconsistent they cannot stand together. The prior act, Ark.Code Ann. § 16-80-103(a), provides that title to stolen property remains in its lawful owner. The subsequent acts, Ark. Code Ann. §§ 27-50-1101 to -1102 and 27-50-1201 to -1210, provide that an owner shall be liable for the towing and storage for an abandoned car, and the second of these acts provides that an abandoned car is one that is left unattended and to which the owner has overtly manifested an intention not to retake. Thus, there is no repugnancy so great that both the prior and subsequent acts cannot stand together. The prior act can be given effect where an automobile is stolen from the owner, and the subsequent acts can be given effect when the vehicle is abandoned by the owner.
In addition, while the title of an act is not part of the law, it may be referred to in order to help ascertain the intent of the General Assembly. Lyon v. White River-Grand Prairie Irrigation Dist, 281 Ark. 286, 664 S.W.2d 441 (1984). Here, the title to one of the subsequent acts, Ark.Code Ann. § 27-50-1101, states that it is to "Provide an Alternative Method for Property Owners to Dispose of Abandoned Vehicles...." The title to the other subsequent act, Ark.Code Ann. § 27-50-1201, states that it is to "Provide for the Removal of Unattended and Abandoned Vehicles...." Both titles provide that the subsequent acts are to allow property owners to remove abandoned vehicles from their property.
Under our common law and under the express language of one of the subsequent statutes, abandonment requires a manifest act which expresses the intent of the owner to forsake his or her property. Property is abandoned when it has been thrown away, or its possession voluntarily forsaken by the owner. Eads v. Brazelton, 22 Ark. 499 (1861). In sum, the prior statute provides that title to stolen property remains in the lawful owner, and the subsequent statutes provide that an owner may lose title to his automobile by abandoning it. The statutes are not necessarily repugnant. Thus, on the argument presented, the trial court correctly ruled that appellee Wins had not lost title and was entitled to an order of replevin.
Affirmed.
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768 F.2d 311
56 A.F.T.R.2d 85-5660, 85-2 USTC P 9570
UNITED STATES of America and Tammy Harris, Special Agent,Internal Revenue Service, Appellants-Cross-Appellees,v.COMMUNITY BANK AND TRUST COMPANY and Nettie Robinson,Vice-President/Cashier, Appellees-Cross-Appellants.
Nos. 84-1585, 84-1915 and 84-2000.
United States Court of Appeals,Tenth Circuit.
July 17, 1985.
Francis M. Allegra, Tax Div., Dept. of Justice, Washington, D.C. (Layn R. Phillips, U.S. Atty., Tulsa, Okl. and Carleton D. Powell and Michael L. Paup, and Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Washington, D.C.), with him on the briefs, for appellants-cross-appellees.
David B. McKinney, Boesche, McDermott & Eskridge, Tulsa, Okl., for appellees-cross-appellants.
Before SEYMOUR and DOYLE, Circuit Judges, and CARRIGAN, District Judge*.
WILLIAM E. DOYLE, Circuit Judge.
1
This is a summons enforcement proceeding which involves the Community Bank & Trust Company ("The Bank") and the Internal Revenue Service ("IRS"). The Community Bank and Trust Company objected to the amount of reimbursement offered by the government for the purpose of defraying the costs of complying with a summons to provide records of a customer's account.
2
The Bank was a third party in the IRS investigation of its customer, Tilman E. Pool, Jr. On September 15, 1982, the IRS summoned the Bank to provide all records of Pool's transactions starting July 1, 1978, through February 1982. The summons was issued in conjunction with a joint civil and criminal investigation of Mr. Pool's alleged failure to file tax returns for the period 1979-1981.
3
On October 15, 1982, an IRS agent delivered another summons to the Bank on the Pool account, asking for the same information requested in the September 15th summons, but giving the Bank a longer time within which to comply. The Bank objected to the summons and asked the IRS to consider alternative ways of collecting the information. The IRS rejected the Bank's suggestions. The Bank partially complied with the summons, but refused to comply fully, stating that the summons was unreasonably burdensome and that the reimbursement rates for work done were too low. On December 28, 1982, the IRS filed the instant action, seeking to enforce the October summons.1 The Bank continued to search and copy records until the IRS, on July 12, 1983, informed the Bank that the records were no longer needed.
4
The Bank is a small suburban operation with 63 employees. Through its record-keeping, it provided the IRS with Mr. Pool's bank statements and deposit slips at little cost. The major burden of complying with the summons was finding all copies of Mr. Pool's certified checks. The Bank has no method of determining whether certified checks are in a given individual's name without examining each one. In this case, the Bank employees searched through over 67,000 certified checks in order to determine if any were in Mr. Pool's name. The Bank estimated that its salary costs for full compliance with the summons amounted to $12 to $18 per hour. It estimated a total expense of $78,000 to comply with the summons.
5
The IRS offered the Bank a rate of $5 per hour for search time and five cents per copy, following proposed Regulation 301.7610-1 of the Internal Revenue Code of 1954 ("Section 7610").2 Both the magistrate and the district judge held that this regulation, which was adopted July 18, 1983, was not applicable to the summons in this case because the summons was issued prior to July 18, 1983. The Bank challenged the rate authorized by Section 7610 as being "unreasonably" low, but continued to gather the information requested. A federal magistrate hearing the case found that the Bank's labor costs were $15 per hour, much higher than the $5 reimbursement rate established by IRS regulation. He also found that the Bank used between $250 and $300 worth of copying supplies and that the reimbursement rate of ten cents per copy was too low.
6
The district court adopted the magistrate's findings. It allowed reimbursement at a rate of $10 per hour. The court also held that the Bank was the prevailing party and should receive attorneys' fees at $75 per hour. The IRS has appealed the issues of reimbursement and attorneys' fees.
7
First, the IRS argues that the district court improperly exercised its authority when it reimbursed the Bank at rates higher than those authorized by the IRS. Since this is a threshold matter, it is correct in maintaining that this court should review the issue de novo. Such questions are reviewable under a de novo standard rather than the "abuse of discretion" or "clearly erroneous" standard. See Farmer v. Arabian American Oil Co., 379 U.S. 227, 231-32, 85 S.Ct. 411, 414-15, 13 L.Ed.2d 248 (1964).
8
The IRS asserts that the magistrate erred in finding Section 7610 inapplicable to the reimbursement rate in the present case and that the district court erroneously relied on that finding. Second, the IRS argues that the district court did not have the authority to reimburse the Bank at rates higher than authorized by Section 7610.
9
We agree with the IRS that Section 7610 was in force at the time that the magistrate considered this case. Section 7610 was adopted on July 18, 1983, several weeks before the release of the magistrate's findings. Treasury regulations such as Section 7610 do not require a 30-day waiting period which is required by the Administrative Procedures Act. Redhouse v. Commissioner, 728 F.2d 1249, 1251 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 506, 83 L.Ed.2d 397 (1984).
10
However, the fact that Section 7610 was applicable does not dispose of the question whether the district court erred in awarding additional reimbursement.
11
Our holding is that the district court properly allowed the bank reimbursement in excess of the amount authorized by Section 7610. On occasion, courts have scrutinized the appropriateness of a summons and relieved the third party of the burden which flows from third party record keepers. United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 372 (9th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1329 (1982). See also United States v. Southwestern Bank & Trust Co., 693 F.2d 994, 996 (10th Cir.1982) (lifting an IRS summons of similar magnitude).
12
The IRS argues that Section 7610 withdrew the jurisdiction of the federal courts to review IRS reimbursement rates.
13
We find nothing in the language or history of Section 7610 which supports the proposition that federal courts have lost the inherent power to scrutinize IRS administrative regulations. The purpose of Section 7610 was merely to speed up the reimbursement of third parties who conduct searches for the IRS, not to withdraw federal court's authority to scrutinize this administrative regulation. The implementation of Section 7610 had no effect on a federal court's power in this area. In general, courts are allowed to scrutinize, modify, and even refuse to enforce administrative summonses. United States v. Bisceglia, 420 U.S. 141, 146, 95 S.Ct. 915, 919, 43 L.Ed.2d 88 (1975). See also Securities and Exchange Commission v. Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 123 (3d Cir.1981).
14
The district court ruled that the cases cited by the IRS do not establish that the courts have lost their power to protect parties from burdens imposed by the agencies. United States v. Southwestern Bank and Trust Co., 693 F.2d 994, 996 (10th Cir.1982); Securities and Exchange Commission v. Arthur Young, 584 F.2d 1018, 1033 (D.C.Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979).
15
Accordingly, we hold that the district court properly set the amount of the reimbursement. The IRS offered the Bank $5 per hour and ten cents per copy for its work. The magistrate set a rate of $10 per hour and fifteen cents per copy. The actual costs sustained by the Bank were greater than those figures. It was within the discretion of the district court to determine an intermediate amount of reimbursement.
16
The IRS also contends that the district court erred in awarding attorneys' fees under the Equal Access to Justice Act ("EAJA"). 28 U.S.C. Sec. 2412. The EAJA provides that a prevailing party shall recover attorneys' fees from the government "unless the court finds that the position of the government was substantially justified." Id. Sec. 2412(d)(1)(A). The test of substantial justification is basically that of "reasonableness in both law and fact." United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.) cert. denied, --- U.S. ----, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984). See also Flow Boy, Inc. v. United States, Nos. 82-1823, 82-1828, 82-1965, and 82-1966 (10th Cir. Jan. 20, 1984). The IRS must therefore show that it had a reasonable basis for the facts alleged; that it had a reasonable basis in law for the theory advanced; and that the facts supported its theory. United States v. 2,116 Boxes of Boned Beef, 726 F.2d at 1487. However, this test does not demand that the IRS prove it had a substantial probability of success in litigating the issue. Id., citing H.R.Rep. No. 1418, 96th Cong. 2d Sess. 10-11 (1980), U.S.Code Cong. & Admin.News 1980, p. 4989-90.
17
The district court found that the IRS's position was not substantially justified and awarded the Bank attorneys' fees. The court's findings of fact are to be reversed only if clearly erroneous, Fed.R.Civ.P. 52(a), and its conclusions of law are reviewable de novo. United States v. 2,116 Boxes of Boned Beef, 726 F.2d at 1486. Because we hold, contrary to the district court, that Section 7610 does apply to the case at bar, we must find that the district court erred as a matter of law on this issue. Although Section 7610 is not dispositive of this case, the IRS was substantially justified in relying upon it. However, we agree with the district court that the IRS's position on the enforcement of the October summons was not substantially justified.
18
We note that the IRS effectively withdrew its summons after the Bank had completed most of the work required by the summons; the issue of enforcement of the summons was mooted before it could be resolved by the district court. Accordingly, the Bank should receive attorneys fees on the summons issue, but not on the issue of reimbursement. See Cinciarelli v. Reagan, 729 F.2d 801, 809 (D.C.Cir.1984) (EAJA permits a partial award). Because the district court originally awarded attorneys' fees for the reimbursement issue as well as the summons issue, the case is remanded for a determination of attorneys' fees consistent with this opinion.
19
It is so ordered.
*
Honorable Jim R. Carrigan, of the United States District Court for the District of Colorado, sitting by designation
1
The burdensomeness of the September summons was already raised in In Re Summons v. Community Bank & Trust Co., which was dismissed as moot. The district court in the instant case found that the issue of the September summons' burdensomeness was identical to the burdensomeness issue raised in regard to the October summons
2
Section 7610 provides in pertinent part:
2) Payment rates. The following rates are established.
(i) Search costs. (A) For the total amount of personnel time required to locate records or information $8.50 per person hour for summonses issued after July 19, 1983. For summonses issued on or before such date, $5.00 per person hour.
(B) ...
(ii) Reproductions costs. (A) For copies of documents $.20 per page for summonses issued after July 19, 1983. For copies of documents issued on or before such date, $.10 per page.
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32 B.R. 27 (1983)
In re Robert L. CARSON, Debtor.
Bankruptcy No. 82-01791-BKC-SMW.
United States Bankruptcy Court, S.D. Florida.
July 21, 1983.
Linda A. Conahan, Reggie D. Sanger, Fort Lauderdale, Fla., for creditor.
Richard W. Smith, Fort Lauderdale, Fla., for debtor.
Herbert Freehling, trustee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE having come on to be heard upon LANDMARK FIRST NATIONAL BANK OF FORT LAUDERDALE's (hereinafter LANDMARK) Motion to Dismiss or Convert the Chapter 13 filed by the Debtor, ROBERT L. CARSON, and the Court having heard the testimony and examined the evidence presented, having observed the candor and demeanor of the witnesses, having considered arguments of counsel and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law:
This Court has jurisdiction of the parties and the subject matter hereto.
The Debtor originally filed a Petition under Chapter 7 of the Bankruptcy Code on September 14, 1982. On or about April 25, 1983, the Debtor filed a Notice of Conversion to a Chapter 13 bankruptcy under the Code. LANDMARK filed a Motion to Dismiss or Convert the case back to Chapter 7 on the basis that the Debtor did not meet the qualifications required under the Code for filing a Petition under Chapter 13 in that (a) he was not a wage earner with regular income and (b) he has unsecured debts in excess of $100,000.00. LANDMARK additionally alleged that the Debtor filed a conversion to a Chapter 13 in bad faith, the sole purpose of his conversion being to avoid this Court's Final Judgment denying his discharge entered April 14, 1983, in Adversary No. 83-0059-BKC-SMW-A
LANDMARK filed a proof of unsecured claim in the amount of $221,135.95. The Debtor disputed the amount of this claim *28 alleging that he only owes LANDMARK approximately $40,000.00 in unsecured debt.
At a preliminary hearing on May 25, 1983, the Court ruled that in order to determine LANDMARK's Motion to Dismiss or Convert an evidentiary hearing must be held wherein the Court would determine the amount of unsecured indebtedness owed to LANDMARK by the Debtor. That hearing is the subject of these findings of fact and conclusions of law.
Based upon the testimony of the Debtor, the Court finds that Debtor is employed and is a wage earner with regular income and was so at the time of filing the Chapter 13 conversion.
The bank produced and admitted into evidence documentation representing seven (7) loan transactions with LANDMARK. In all but one instance, the documentation showed ROBERT CARSON signing as maker, co-maker or guarantor. The uncontradicted testimony presented by the bank's handwriting expert showed that ROBERT CARSON did in fact sign three (3) names which were not his own on bank documents, specifically, Hymen Schwartz, Richard Albertson and James Sheil. The handwriting expert further testified that the guaranties of the Schwartz and Albertson loans appearing to be signed by BOB CARSON were also the signature of the Debtor. The uncontradicted testimony and evidence presented by the bank further shows that each of the loans was funded to or for the benefit of the Debtor.
Even though the Debtor failed to either directly admit or deny his signatures, his testimony during 205 examination admitted that he received the proceeds of all loans except those signed in fictitious names. The uncontradicted testimony produced by the bank showed that the proceeds of the fictitious loans were also received by or for the benefit of the Debtor. The loan proceed checks themselves and other checks payable to or for the benefit of the Debtor, together with testimony, showed that some of the proceed checks were deposited into the Great American Bank of Davie, and an officer of that bank indicates that the accounts to which they were deposited were controlled by the Debtor and used by the Debtor or for the benefit of the Debtor. The evidence and testimony further showed that other loan proceed checks and checks from the cashier's check float were deposited into various accounts of the Debtor or accounts for entities controlled by the Debtor or were endorsed by the Debtor and cashed out. There was no contradictory evidence of any kind presented by the Debtor.
The bank officer testified that each of the loans presented is in default, that any collateral available to the bank has been disposed of and credited against the Debtor's accounts and that interest has properly been figured through September 14, 1982, which was the date of the filing of the Petition in bankruptcy. Based upon the evidence presented, the Court finds that ROBERT CARSON is the maker, co-maker or guarantor as represented in the documentation taken into evidence on each of the notes presented by LANDMARK in this hearing. The Court further finds that each of the notes is in default and that the amounts testified to by the bank as due and owing with interest through the date of the filing of the Petition are the amounts validly owed to the bank by the Debtor. The Court finds that ROBERT L. CARSON owes LANDMARK in unsecured debt a total of $221,135.95.
Based upon the foregoing facts, the Court finds that the Debtor is not qualified pursuant to § 109(e) of the Bankruptcy Code to file a Chapter 13 Petition in that his unsecured debt exceeds $100,000.00. Having made this finding, the Court need not rule upon the bank's allegation that the conversion was filed in bad faith.
The Debtor's Chapter 13 Petition is hereby converted back to a Chapter 7 Petition under the Bankruptcy Code. A separate order will be entered in accordance with these findings of fact and conclusions of law.
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166 F.2d 17 (1948)
UNITED STATES
v.
CUMMINS DISTILLERIES CORPORATION et al.
No. 10527.
Circuit Court of Appeals, Sixth Circuit.
February 6, 1948.
Homer R. Miller, of Washington, D. C. (Theron L. Caudle, Sewall Key, George A. Stinson and Homer R. Miller, all of Washington, D. C., and David C. Walls and A. Roy Copeland, both of Louisville, Ky., on the brief), for appellant.
J. Verser Conner, of Louisville, Ky. (Allen P. Dodd, Irvin Marcus, J. Verser Conner, A. C. Van Winkle and John K. Skaggs, Jr., all of Louisville, Ky., and Frederic P. Lee, of Washington, D. C., on the brief), for appellees.
*18 Before SIMONS, ALLEN, and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
The principal question in the case is whether whiskey warehouse receipts assigned to stockholders of the appellees in pursuance of a plan of liquidation and sold by a stockholders' committee was in effect a sale by the corporation. If so, the corporation made a profit and was liable for taxes in stipulated amount to the United States, for the collection of which it had made a levy and filed a lien upon funds deposited with the Louisville Trust Company for distribution to stockholders. There is little or no dispute as to evidentiary facts, accepted by the appellant as found by the District Judge.
The suit below was begun by the Louisville Trust Company for a declaration of rights in the deposit because of a jeopardy assessment of income taxes against the Distilleries Corporation, followed by distraint. The defendants were the Collector of Internal Revenue for Kentucky, the Corporation, members of the Stockholders' Committee, sundry creditors, and selected stockholders as representatives of their class. The United States intervened, claiming a first and prior lien for delinquent income taxes of more than 2¼ million dollars. The court, by its original and substituted judgment, dismissed the claim of the appellant, set aside its lien, and directed the Trust Company to retain the fund and refrain from distributing it until its further order, the cause to remain upon the docket for such further proceedings as may be proper.
Cummins Distilleries Corporation was incorporated in 1933 under the laws of Delaware. In 1942, it had outstanding preferred stock upon which there was an accumulated unpaid dividend. Factional differences existed among the directors and receivership proceedings were threatened, both by common and preferred stockholders. It had also become known that the government, as part of its war program, would direct the distillation of beverage alcohol to be discontinued. Because of these conditions, the directors considered liquidation of the corporation in August, though no decision was arrived at until November 30, 1942, when a recommendation was made to stockholders that the corporation be liquidated and dissolved, and a stockholders' meeting called for December 21, 1942, to consider the recommendation. At that meeting the stockholders authorized dissolution and complete liquidation of the corporation. They adopted a plan calling for payment of preferred stockholders in cash, for payment of the company's obligations, and for distribution of assets to common stockholders, either in kind or in cash. On the same day, the directors instructed the executive officers to set aside certain assets of the corporation for the payment of preferred stockholders and settlement of its debts, and then adopted a resolution which provided for dissolution and liquidation to be made to owners of common stock out of the net equity of the company in warehouse receipts representing 51,694 barrels of whiskey. A bid for the distillery and other assets was accepted, and the officers were authorized to convey this property to the purchaser. The conveyance was made as directed and provision was made for payment of preferred stockholders and all known debts and taxes.
On December 25, some of the larger stockholders discussed the advisability of appointing a committee which could act for them in distributing to each stockholder the portion of the warehouse receipts to which he was entitled. The receipts had been pledged to various banks to secure a corporate indebtedness of approximately $1,113,000, and a practical problem was involved in converting the equity into cash. The stockholders agreed upon a committee of three, and an instrument was drawn authorizing it to receive from the company evidence of title to assets theretofore transferred to the stockholders in kind, to sell such assets, and to distribute the proceeds to the holders of the corporate stock. This document was circulated among the stockholders and signed by owners of 80% of the stock, who also executed an instrument authorizing the corporation to deliver to the committee the warehouse receipts to which they were entitled. They also executed a third document addressed to the corporation, reciting that it would be for the best *19 interests of all that the committee should likewise act for the remaining 20% of the stockholders and requested the corporation to deliver to the committee their warehouse receipts, undertaking to protect and indemnify the company, its directors and officers, against any claims arising out of such assignment and delivery and to release the corporation from its bank indebtedness. On December 28, the corporation executed two assignments, by one of which it transferred its equity in 80% of the warehouse receipts to the stockholders who had appointed the committee, and by the other transferred to them its equity in the remaining 20% of the warehouse receipts.
The corporation had, in the meantime, caused its indebtedness to various banks to be consolidated in one loan from the Continental Illinois National Bank and Trust Company of Chicago, which thereby acquired possession of all the warehouse receipts as security. On December 29, 1942, the corporation issued and delivered to the committee substituted warehouse receipts which were to be validated and substituted for the original certificates, upon the committee securing the release of the corporation from its indebtedness to the Chicago bank. The committee immediately went to Chicago, executed its own note for the indebtedness owing to the Continental Bank, and caused the substituted warehouse receipts to be validated and pledged to the bank. The corporation's note and the original warehouse receipts were thereupon canceled. Immediately thereafter the committee met with L. A. Weiss, a whiskey broker, in his office in Chicago, who advised them of a news item to the effect that a ceiling price on sales of warehouse receipts would probably be imposed in the near future which would be less than the market price. The committee then decided upon an immediate sale, and authorized Weiss to sell the warehouse receipts at prices then fixed. Prior to that time, Weiss had negotiated neither for the sale of whiskey nor warehouse receipts for the company or the committee, although the corporation at some time prior thereto had indicated in a general way that it would possibly sell the whiskey at a later time, without definite date, purchasers, or sales prices being mentioned. Weiss had not previously been employed by the committee nor been given authority to act until he was authorized to do so on December 30. Following such authorization, Weiss immediately negotiated with possible purchasers by long distance telephone and obtained commitments covering all the warehouse receipts, with allocation of quantities to be later determined. On January 4, 1943, members of the committee again went to Chicago, closed the sales in pursuance of the commitments and allocations, delivered the receipts, and received payment of the purchase price. The proceeds were deposited in the Continental Bank to the credit of the committee, which then paid off its note to the bank, and later transferred $3,000,000 to the account of the committee at the Louisville Trust Company, in Louisville, Kentucky. In the meanwhile the State of Delaware had on December 31, 1942, issued its certificate dissolving the Cummins Distilleries Corporation.
On January 20, 1943, the committee employed the Louisville Trust Company as its agent to distribute the fund to the stockholders of the corporation. On January 21, it mailed to each stockholder a report of its action, stating the amount of distribution per share upon presentation of stock certificates duly endorsed. On the same day, the Trust Company mailed to each common stockholder a letter likewise advising of the proposed payment and calling upon stockholders to deliver their stock certificates properly endorsed for surrender and cancelation. By January 26, 1943, out of the total of 219,207 shares, 197,289 shares had been delivered or mailed to the Trust Company. Checks were issued and subsequently paid by the Trust Company on 148,110 shares. Distribution was halted, and the fund frozen when on January 26 the Collector made his jeopardy assessment on the theory that the sales of the warehouse receipts were made by the corporation and not by the stockholders. He levied on all the funds to the credit of the committee in the Trust Company, upon funds of the corporation, set aside for retiring its preferred stock and for the payment of its outstanding mortgage indebtedness and upon its general deposit accounts.
*20 The Court concluded that the sale of the warehouse receipts was on behalf of the stockholders individually and not chargeable to the corporation. It found little, if any, direct evidence that the committee had carried out any contract previously negotiated by the corporation. It concluded upon unequivocal and uncontroverted testimony that the committee had no intention of selling the warehouse receipts when it went to Chicago to obtain possession of them from the bank and that no agreement with Weiss to sell them had previously been negotiated. It found it undisputed that purchasers, price and allocations were agreed upon only after the committee had acquired possession of the receipts.
If the Court's conclusions be viewed as findings of ultimate facts, they are binding upon us under Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, if not clearly erroneous. We are unable so to consider them and decision must be affirmed, unless out of the circumstances pressed upon us by the appellant a question of law emerges in the decision of which the Court fell into error. The appellant would have us set aside the judgment upon grounds which include the fact that the corporation had previously considered selling the whiskey receipts at some indefinite future time, that the stockholders who had appointed the committee included some of the larger and more important stockholders, that the committee consisted of Morrison, a vice president and treasurer of the corporation, Waldman, its accountant, and Wagner, a member of a brokerage firm, which had distributed the company's stock, that the warehouse receipts had fixed value in a firm market, and that the stockholders' committee had not been authorized to receive or sell the receipts to which a minority of the stockholders were entitled. This leads to a consideration of the legal principles involved.
It has been held from an early date that a taxpayer has the legal right to decrease the amount of what otherwise would be his taxes or altogether avoid them by means which the law permits. United States v. Isham, 17 Wall. 496, 506, 21 L.Ed. 728. The principle was reaffirmed in Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, was recently restated in Commissioner v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135, and has been applied in numerous Circuit Court of Appeals cases. As was said by this court speaking through Judge Hickenlooper in Marshall v. Commissioner, 57 F.2d 633, 634: "There was nothing unlawful, or even mildly unethical, in the motive of petitioner, to avoid some portion of the burden of taxation".[1] If this doctrine is now to be rejected because of the needs of the Treasury or for other reasons, it may not be inappropriate to say that its rejection must be directed by the Congress or ultimate judicial authority. Otherwise it must be applied.
From the circumstances relied upon by the appellant, it may perhaps be assumed that the manner of the company's liquidation was motivated by a purpose to avoid taxation. This we need not decide, for granted such purpose, it alone is not enough to sustain the government's claim. As was said by Judge Learned Hand in Chisholm v. Commissioner of Internal Revenue, 2 Cir., 79 F.2d 14, 15, 101 A.L.R. 200: "The question always is whether the transaction under scrutiny is in fact what it appears to be in form * * * the purpose which counts is one which defeats or contradicts the apparent transaction, not the purpose to escape taxation * * *." So when in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, a corporation was organized with a purpose merely to draft papers rather than one to create an active corporate entity, the *21 court looked through the form to the reality of the transaction. The government may look upon actualities, and upon determining that the form employed is unreal may disregard the effect of the fiction upon tax liability. Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406. It is also settled that where a corporation enters into contract for the sale of its assets and these are then distributed as a dividend to its stockholders who perform the contract the corporation realized gain, if any, upon the transaction. Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, and this principle is likewise applied where negotiations have been entered into for the sale of its assets by a corporation, but prior to formal agreement the assets are distributed as a dividend in kind to stockholders who then make the sale to the party with whom the corporation has negotiated. Hellebush v. Commissioner, 6 Cir., 65 F.2d 902; Wichita Terminal Elevator Co. v. Commissioner, 10 Cir., 162 F.2d 513. This is on an assumption that the transaction is unreal rather than actual. A liquidation undertaken and concluded by a liquidating trustee or committee appointed by a corporation is a corporate liquidation, with profits resulting therefrom constituting corporate income. Whitney Realty Co. v. Commissioner, 6 Cir., 80 F.2d 429.
But when none of these circumstances are present, where the corporation declares and pays a dividend in kind to its stockholders and the stockholders upon their own responsibility dispose of corporate assets so assigned, a gain realized from this sale may result in income to stockholders but none to the corporation. Howell Turpentine Co. v. Commissioner, 5 Cir., 162 F.2d 319.[2] That is this case. The corporation here involved had neither agreed nor negotiated for the sale of its assets prior to liquidation. It had had no dealings with Weiss. It had been considering liquidation for some time prior to actual decision and the reasons for so deciding are plain. The liquidation was not unreal or a sham. The stockholders acted upon their own responsibility and at their own risk. The difficulty of dividing warehouse receipts calling for whiskey of varied age and quality made their sale inevitable and understandable. Certainly there can be nothing unreal in their assuming an obligation to the Chicago bank for over $1,100,000. Emphasis is placed by the appellant upon the Committee's lack of authority to act for the nonassenting stockholders. The Court held that such stockholders had ratified the assignment of their receipts to the committee by failure to complain, with ratification relating back to the time of the transfer of receipts from the corporation to the committee. Indeed, none of these stockholders protested and many of them surrendered their stock to the Trust Company so as to participate in the avails of the sale. In any event, the issue if any as to the authority of the committee to sell the minority receipts was between the committee and the stockholders, and any argument based on lack of authority on the part of the committee to receive and sell the warehouse receipts of the minority stockholders, but brings into relief the fact that the receipts were in law and in fact sold by the stockholders or on their behalf and not by the corporation.
Wichita Terminal Elevator Co. v. Commissioner, 10 Cir., 162 F.2d 513, and Meurer Steel Barrel Co. v. Commissioner, 3 Cir., 144 F.2d 282, are distinguishable from the present case upon their facts and in any event are appeals from decisions of the Tax Court of the United States adverse to the taxpayer and so compelled by the finality given to them by the rule of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Fairfield S.S. Corp. v. Commissioner, 2 Cir., 157 F.2d 321, does not support the appellant's position here, for the gain there taxed was sustained because the transfer of assets from one corporation to another was neither a distribution nor partial distribution in cancelation of company stock and the implication is strong that but for that conclusion the Tax Court would have been reversed, notwithstanding the limits on the power to disturb its decisions. We conclude that the District Court *22 in the present case was not in error in dismissing the government's claim and setting aside its lien.
A second problem arises out of proceedings supplementary to the original judgment. It appears that when the intervening petitions of the government were filed the Distilleries Corporation was indebted to the government for income taxes upon an additional assessment for the year ending August 31, 1941, for declared value excess profits taxes and excess profits taxes for the year ending August 31, 1942, in total amount of $62,221.90. It also appears that the government during the pendency of the proceedings had collected by distraint the sum of $62,346.93, which the Collector in 1946 credited against taxes assumed to be owing upon the gain derived from the sale of warehouse receipts. The Distilleries Corporation did not learn of this credit until some time prior to June 7, 1946, the date upon which the original judgment was entered. It then filed an amended answer, counter-claim, and cross-petition setting up the facts and praying that the amount so collected and credited be set off against its earlier tax liability. Over the protest of the government, the amendment was allowed, and the set-off directed by the substituted judgment of December, 1946.
The government challenges the substituted judgment on various grounds. It says, first, that the corporation was dissolved on December 31, 1942, and since by the laws of Delaware, where it was incorporated, it has the power to sue for only three years thereafter, it could not on June 7, 1946, proceed affirmatively by counterclaim. Section 42 of the Delaware Corporation Law, Revised Code 1935, Sec. 2074. The Delaware Act, however, provides that with respect to any suit commenced against it prior to the expiration of the three-year period the corporation shall for the purpose of such suit be continued as a body corporate beyond the three-year period and until any judgment therein shall be fully executed. See Eastman, Gardiner & Co. v. Warren, 5 Cir., 109 F.2d 193. If it be considered that the amended pleadings state a new cause of action it had probably abated upon the expiration of three years from and after corporate dissolution. Atkins v. W. A. Harriman & Co., Inc., 2 Cir., 69 F.2d 66; Kelly v. International Clay Products Co., 291 Pa. 383, 140 A. 143. We are, however, in agreement with the District Court that the amended petition set up nothing new and dealt solely with the form of the judgment and the relief to which the defendants might be entitled. It would seem to be elementary that the judgment rendered upon the validity of the government's claim was not a mere abstraction and the court without power to implement it by appropriate procedural directives.
The government next contends that the only way in which the appellees may recover the amount collected by it through distraint is by an independent action for refund. But the corporation's power to sue had expired by virtue of the three-year provision of the Delaware Corporation Law. It did file a claim for refund on February 19, 1946, but the Commissioner failed to rule upon it, and no suit was filed. It was therefore without remedy, unless possessed of an equitable defense to the government's suit, hereinafter discussed.
The appellant's remaining challenge to the substituted judgment is that the corporation may not set off the sum collected by distraint against an undisputed liability for taxes in earlier years on the theory of equitable recoupment, since the amount collected and the taxes owing did not arise out of the same transaction. This leads us to a consideration of the precise situation of the appellees in respect to the claims asserted by the government's intervening petitions. When the government intervened, it sought to collect not only a tax upon the gain assumed to have been derived from the sale of warehouse receipts in 1943 but also unpaid taxes for fiscal years 1941-1942. It sought judgment that the entire sum held by the Trust Company be subjected to its claim, and if this should leave the Distilleries Corporation insolvent that the stockholders be held liable for the balance as transferees of the corporation. The situation was therefore this: While the suit begun by the Louisville Trust Company was for a declaratory judgment it evolved as a suit by the government against the Distilleries Corporation for taxes, both current and those past due. So far as it involved taxes *23 upon gain derived from the sale of warehouse receipts, it resulted in a judgment denying the government's claim which we now affirm. Therefore, the government is in possession of funds forcibly taken by means of an invalid warrant and credited upon an invalid claim. It proposes to keep the money, and quite frankly to proceed against the corporation or its transferees to recover the amount owing for corporate taxes in prior years. If we have rightly decided the first issue, this will result in collecting twice for the same tax debt, unless adjudicated equitable principles provide an effective bar.
In Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421, and Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265, the Supreme Court found no difficulty in preventing injustice, either to the government or to the taxpayer, and in avoiding unjust enrichment of either, upon equitable conceptions of justice, and by the application of a historic remedy comparable to equitable recoupment (301 U.S. 539, 57 S. Ct. 854). It concluded that where money is taken through mistake its unjust retention is immoral and amounts in law to a fraud on the taxpayer's rights (295 U.S. 247, 55 S.Ct. 695), and even though the sovereign is not liable to respond to a petition of the taxpayer, the right it has given him to credit it or refund is available to him when the government proceeds against him for the collection of a tax. In Rothensies v. Electric Battery Co., 329 U.S. 296, 67 S.Ct. 271, 273, the Supreme Court wisely undertook to confine this principle so as to limit recoupment to those defenses which arise out of the transaction upon which the government's claim is based. The principle itself was not rejected. It was sought, however, more clearly than was generally supposed, to limit it in the revival of stale claims to those deriving from the same transaction, so as to preserve the salutary effect of statutes of repose, for it would be intolerable to have an income tax system under which there never would come a day of final settlement. "A statute of limitation is an almost indispensable element of fairness as well as of practical administration of an income tax policy."
The decision in the Rothensies case has, however, no application to the present situation. There is here no effort to revive stale claims as a set-off against a live tax liability. The Distilleries Corporation admits that it owes 1941 and 1942 taxes in stipulated amount. The government inter alia sued for their collection. It now has the money and if the decision of the District Court and our own affirmance of it are sound it has neither legal nor moral right to keep it, unless that right arises out of the antecedent debt. That right the appellees concede, and need not by us be questioned. Nothing in the Rothensies case, as we view it, precludes adjudication that the government apply the collection to the valid tax debt. So viewing the problem, it becomes unnecessary to explore the purpose of the Collector in crediting the enforced collection, in conflict with conventional practice, upon a disputed rather than upon a conceded tax liability, upon a later rather than upon an earlier debt, nor to consider whether such credit, which after all is but a book-keeping entry grounded in mistake, is irrevocable.
The judgment as amended and amplified by the substituted judgment is affirmed and the cause remanded for further proceedings consistent herewith.
ALLEN, Circuit Judge (dissenting).
I regret that I cannot agree with the conclusion of my colleagues. It is unnecessary to discuss the setoff allowed by the District Court against the undisputed tax claims. If the gain from the sale of the warehouse receipts was taxable to the corporation the Commissioner did not err in crediting the sums collected against the taxes which he asserted on the amount of such gain.
The gain was taxable to the corporation because the sale was made by the corporation, and not by the stockholders. While it is true that the committee consisting of certain dominant stockholders actually negotiated the sales of the whiskey warehouse receipts, they did this under authority of an agreement with the taxpayer embodied in a proposal made by the dominant stockholding group and accepted by resolution *24 of the board of directors. On December 24, 1942, the majority group addressed a letter to the directors of the corporation, making a formal offer which was accepted by the directors of the corporation on December 28, 1942. The appellee concedes in its brief that this proposal and its acceptance resulted in a contract, and it was effective prior to the sale of the warehouse receipts, and prior to the execution of the assignments by which the taxpayer transferred the equity in the warehouse receipts to the two groups of stockholders. The proposal stated that the taxpayer had delivered to stockholders whiskey warehouse receipts representing 41,354 barrels of whiskey "as our collective share of the assets distributed to common stockholders by its board of directors on December 24, 1942, as a distribution in liquidation under the plan for the complete liquidation of said corporation adopted on December 24, 1942." It further stated that it was believed to be to the best interest of all the stockholders of the corporation and desirable and beneficial to the remaining stockholders that the "distribution in kind" to such remaining stockholders "be sold, handled and disposed of in collaboration with the undersigned." The dominant stockholders proposed to the taxpayer that they should "receive, hold, sell, handle, manage and dispose of," the assets of the minority in a manner that would be for their "best benefit and advantage," and that they would pay to each of such stockholders "his or her pro rata share of the equity in said assets, or the proceeds thereof, as soon as possible and practicable, according to sound business practice" provided that the minority stockholders deposited their stock for cancellation in the manner and at the time and place fixed in the plan of liquidation. They further proposed to indemnify the taxpayer against any claims arising from the delivery of the assets, and to cause the taxpayer to be released from its bank indebtedness of over $1,100,000.
Under this contract the dominant group was obligated to handle the sale in accordance with the proposal, and was constituted the agent of the taxpayer in all subsequent transactions. This being the case, the sale was made by the taxpayer. In taxation the law looks through form to the substance. Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Hellebush v. Commissioner, 6 Cir., 65 F.2d 902.
The dividend declared by the taxpayer under its liquidation plan was in the net equity in the warehouse receipts, which covered whiskey of various ages and blends, and therefore of different value. While the directors denominated this "a dividend in kind," there was no practicable way, as testified and not controverted, to have divided the whiskey among the stockholders individually with any degree of equality. The property was received as property of the taxpayer corporation, subject to its debt and handled by the dominant group as agent of the taxpayer. The distribution was not a distribution in kind. Whitney Realty Co. v. Commissioner, 6 Cir., 80 F.2d 429, certiorari denied, 298 U.S. 668, 56 S.Ct. 834, 80 L.Ed. 1392; Hellebush v. Commissioner, supra.
The gain from the sale was therefore taxable to the corporation.
NOTES
[1] In Founders General Co. v. Hoey, 300 U.S. 268, 57 S.Ct. 457, 460, 81 L.Ed. 639, it was suggested that the taxpayer might have attained his ultimate purpose by a form of transaction which would not have subjected him to a tax. Said Mr. Justice Brandeis for the court: "The suggestion, if true, furnishes no reason for relieving him of tax when, for whatever reason, he chooses a mode of dealing within the terms of the act. * * * To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty." If this is true, the reverse must be true.
[2] So the Tax Court has itself held. Acampo Winery and Distilleries, Inc., v. Commissioners, 1946, 7 T.C. 629.
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