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[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1544
UNITED STATES,
Appellee,
v.
MIGUEL RODRIGUEZ COLON, a/k/a CHIVI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Luis Rafael Rivera on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.
June 14, 1999
Per Curiam. Upon careful review of the briefs and
record, we conclude that the district court did not clearly err
in sentencing defendant based on the drug quantity to which he
specifically pled guilty. Given defendant's plain admissions
at the plea hearing and the lack of a developed challenge to
the validity of the plea, defendant will not now be heard to
argue about the drug quantity. See United States v. Martinez-
Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995). The district
court was not required, on the record before it, to adopt
defendant's revised, post-plea version of his involvement with
the drug shipment.
Affirmed. See 1st Cir. Loc. R. 27.1.
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43 Wn.2d 111 (1953)
260 P.2d 875
CLARENCE H. McLAUGHLIN, Respondent,
v.
LAURA McLAUGHLIN, Appellant.[1]
No. 32462.
The Supreme Court of Washington, Department Two.
August 20, 1953.
P.R. McIntosh and Wm. S. Lewis, for appellant.
George N. Lusch and Graham K. Betts, for respondent.
SCHWELLENBACH, J.
Clarence H. and Laura McLaughlin, in separate actions, sued each other for divorce. The two cases were consolidated for trial. The trial court granted a divorce to each party. The decree, which was signed and entered January 23, 1953, provided:
*112 "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties own an equal interest in the following real property, also known as 4157-23rd S.W.
"Lots 11 and 12 in Block 1, of Southern Pacific Supplemental Addition to West Seattle, as per plat recorded in Volume 3 of Plats on page 37, records of King County, Washington.
"That Laura C. McLaughlin is awarded the exclusive use and possession for six months from January 13, 1953, of the above described property. That the parties are ordered to dispose of said property by agreement within that said period of time.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event the parties have not disposed of the said real property by agreement that the said property shall be sold and the proceeds divided between the parties pursuant to the Findings of Fact, Conclusions of Law and Divorce Decree."
February 9, 1953, the husband made what he termed "MOTION OF CLARENCE H. McLAUGHLIN TO COURT TO RECONSIDER." In it he alleged that, at the oral announcement of decision, the court stated that the wife was being permitted to occupy the premises for six months, and that neither party would be allowed to occupy the premises with a newly married husband or wife; that she had remarried February 7, 1953, and that she and her new husband were presently occupying the premises in question. He prayed that the court reconsider its decision and require the property to be sold.
February 25, 1953, the court issued its "SUPPLEMENTAL DECREE OR ORDER REGARDING PROPERTY". It told of Mrs. McLaughlin's remarriage, and stated:
"... and being of the opinion injustice would result by permitting the defendant to occupy the premises for six (6) months before making any attempt to dispose of the property IT IS NOW THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that the Decree, Findings of Fact and Conclusions of Law previously entered in this matter of January, 1953, should be and the same are hereby modified or clarified in the following respects:"
The decree then provided that the wife and her new husband pay the sum of forty dollars per month to Clarence H. *113 McLaughlin and that the property be sold. It also provided that, in the event that the wife disobeyed the order, the court was retaining jurisdiction over the property and that the matter might be brought before the court as in contempt proceedings, or in any other proceedings that might be proper in the circumstances. The wife appeals.
[1] Respondent has sent up a supplemental transcript which includes the oral decision of the trial court in the original divorce case. The court refused to certify this as a statement of facts. We have many times held that, on appeal, we will not consider a memorandum opinion unless it is incorporated as a part of the statement of facts. Whitehead v. Satran, 37 Wn. (2d) 724, 225 P. (2d) 888.
The appeal is based mainly on the ground that the court had no jurisdiction of the subject matter.
[2] RCW 26.08.110 provides that the decree of divorce, as to alimony and the care, custody, support, and education of children, may be modified, altered, and revised by the court from time to time, as circumstances may require. However, it then continues:
"Such decree, however, as to the dissolution of the marital relation and to the custody, management and division of property shall be final and conclusive upon both parties subject only to the right to appeal as in civil cases, and provided that the trial court shall at all times including the pendency of any appeal, have the power to grant any and all restraining orders that may be necessary to protect the parties and secure justice."
The prior act was Rem. Rev. Stat., § 988. It provided:
"... which order as to the custody, management and division of property shall be final and conclusive upon the parties subject only to the right of appeal; ..."
The above section was first construed in Cassutt v. Cassutt, 126 Wash. 17, 217 Pac. 35, wherein we held that, while under the statute the court had the power to reserve jurisdiction as to matters concerning the care, custody, support, and education of children, the superior court had been deprived of authority to retain jurisdiction over the custody, management, and division of the property of the parties, and that as to such matters the interlocutory order was final. In Brown *114 v. Brown, 192 Wash. 333, 73 P. (2d) 795, we held that the court could not retain continuing jurisdiction over the property, so as to divide it on final decree, rather than upon the entry of the interlocutory order.
In Ford v. Ford, 22 Wn. (2d) 303, 155 P. (2d) 485, the interlocutory order provided:
"`It is further ordered and adjudged that the court hereby reserves for a period of six months the jurisdiction on its own motion to alter the provisions of the property settlement agreement ...'"
We held:
"We think the powers of the court with respect `to the custody, management and division of property' are too explicitly defined by the statute to admit of construction. Plainly, the court has no power to reserve the right to modify the interlocutory order in that respect. By the express terms of the statute, the order must be final `Subject only to the right of appeal.'"
Respondent contends that, under the provisions of RCW 4.72.010, the court may, within one year, vacate or modify a judgment,
"(4) For fraud practiced by the successful party in obtaining the judgment or order; ..."
As stated before, the court's oral memorandum opinion is not properly before us and we cannot consider it. From the record before us, there is nothing to indicate fraud. Furthermore, the court did not find any fraud in its supplemental decree or order.
[3] Respondent relies upon that portion of RCW 26.08.110 which reads:
"... provided that the trial court shall at all times including the pendency of any appeal, have the power to grant any and all restraining orders that may be necessary to protect the parties and secure justice."
That provision merely gives the trial court the right, during the pendency of an appeal, to enforce its decree, and to protect the parties as to any rights which the decree gave to them.
The supplemental decree stated that the decree, findings, *115 and conclusions "are modified or clarified in the following respects."
We find nothing in the decree which needs clarification. It is perfectly clear. It awarded to the wife, without qualification, the exclusive use and possession of the property for six months.
[4] The decree cannot be modified, since, by the express terms of the statute, the award as to the custody, management, and division of property is final and conclusive, subject only to the right of appeal. The trial court has no power or jurisdiction to modify it in that respect.
The supplemental decree or order regarding property is reversed and remanded, with direction to set it aside.
GRADY, C.J., HAMLEY, DONWORTH, and FINLEY, JJ., concur.
NOTES
[1] Reported in 260 P. (2d) 875.
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429 F.2d 543
UNDERSEA ENGINEERING & CONSTRUCTION CO., Inc., an Hawaii Corporation, and Shelton Engineering Contractors, Ltd., an Hawaii Corporation, Plaintiffs-Appellants,v.INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION, dba ITT Federal Laboratories, a Division of International Telephone & Telegraph Corporation, a Maryland Corporation, also known as ITTFL, also known as ITT, and Healy-Tibbitts Construction Co., a California Corporation, Defendants-Appellees.
No. 23729.
United States Court of Appeals, Ninth Circuit.
June 18, 1970.
June 22, 1970.
Rehearing Denied July 21, 1970.
Joseph A. Ryan (argued), of Ryan & Ryan, Honolulu, Hawaii, for appellants.
William R. Loomis (argued), of Henshaw, Conroy & Hamilton, Honolulu, Hawaii, for appellees.
Before JERTBERG, BROWNING and HUFSTEDLER, Circuit Judges.
PER CURIAM:
1
Appellants, Undersea Engineering & Construction Co., Inc., an Hawaii corporation, and Shelton Engineering Contractors, Ltd., an Hawaii corporation, plaintiffs in the district court, appeal from the judgment entered by the district court following an order granting appellees' (defendants below) [International Telephone & Telegraph Corporation, a Maryland corporation, and Healy-Tibbitts Construction Co., a California corporation] motion for summary judgment, and "from the Order denying the Affidavit of Disqualification and Certificate requesting that the Chief Judge of the Court of Appeals, Ninth Circuit to make an independent selection of a judge to preside over this case and from the Order imposing costs and attorney's fees thereon to defendants."
2
We have examined the record upon which the district court acted in granting the motion for summary judgment, and are satisfied that such record presents no genuine issue as to any material fact and that the appellees were entitled to judgment as a matter of law. Rule 56, Fed.Rules of Civil Proc. The district court's written decision on the motion for summary judgment is attached as an appendix to this opinion. The decision contains a statement of the undisputed material facts presented by the record, and correctly disposes of appellants' contentions on this appeal, which merit discussion.
3
The judgment appealed from is affirmed for the reasons and on the authorities contained in the decision.
4
The orders appealed from are, and each of them is, affirmed The Affidavit to disqualify the district judge was clearly insufficient. See Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1920); United States v. Grinnell Corporation, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). The mere filing of an Affidavit does not automatically disqualify the judge. He has authority to decide whether the claim of bias is legally sufficient. Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968); Behr v. Mine Safety Appliances Co., 233 F.2d 371 (3d Cir.), cert. denied 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956); Price v. Johnston, 125 F.2d 806 (9th Cir. 1942).
5
The hearing on the demand for disqualification reveals that the grounds stated in the Affidavit were frivolous, if not groundless and vexatious. In these circumstances it was within the district court's discretion to impose sanction. See Local No. 149 I. U., U. A., A. & A. I. W. etc. v. American Brake Shoe Co., 298 F.2d 212, 214-215 (4th Cir. 1962).
APPENDIX
6
UNDERSEA ENGINEERING & CONSTRUCTION CO., INC., a
Hawaii Corporation, and Shelton Engineering Contractors, Ltd., a
Hawaii Corporation,
Plaintiffs,
vs.
INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION,
doing business as ITT Federal Laboratories, a Division of
International Telephone and Telegraph Corporation, a Maryland
Corporation, also known as ITTFL, also known as ITT, and Healy-Tibbitts
Construction Co., a California Corporation,
Defendants.
Civil
No. 2766
7
In the United States District Court for the District of Hawaii
8
DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
9
Defendant International Telephone and Telegraph Corporation (ITT), as prime contractor, entered into a contract with the United States Navy to install a hydrophone system offshore of Kauai in Hawaii. Plaintiffs Undersea Engineering & Construction Co., Inc. (Undersea) on June 10, 1966 entered into a subcontract, #SK-714559, with ITT to perform certain work on ITT's job. Plaintiff Shelton Engineering Contractors, Ltd. (Shelton) was a sub-subcontractor to Undersea. Between June of 1966 and April of 1967 there occurred work changes, claims by Undersea for time delay losses, claims by ITT against Undersea for poorly performed work, claims by Undersea that ITT was not performing or paying Undersea as provided under the contract, etc., and beginning in April of 1967 demands and threats of suit made by Undersea against ITT. In September 1967 there followed a payment by ITT to Undersea and a general release signed by Undersea.
10
Thereafter, in November 1967, Undersea and Shelton filed this suit against ITT and Healy-Tibbitts Construction Co. (Healy-Tibbitts), also a subcontractor on the job whose barge had been involved in damage to a mooring installation made by Undersea.
11
To avoid the impact of the release it had executed, Undersea alleged that it had executed the release only because of economic coercion by ITT. Defendants answered, denying the plaintiffs' claims and alleging certain setoffs and counterclaims, which were thereafter denied by the plaintiffs. The defendants have filed a motion for summary judgment accompanied by affidavits and exhibits in support thereof. Plaintiffs thereafter filed counter-affidavits and exhibits, and the motion was argued before this court.
12
By their complaint plaintiffs' claims are substantially as follows:
13
1. Contract Claim — Count I — Undersea against ITT (paragraphs 7(A), 7(B), 10 and 11) for $44,970.40 for overhead expense and loss of profit because of ITT's non-use of certain support services (vessels, divers, etc.) under paragraph 2 of the subcontract (Defendants' Exhibit 2).1
14
2. Contract Claim — Count II — Undersea against ITT (paragraph 7(C), 12 and 13) for $126,256 for underwater work done under the subcontract but not paid for by ITT.
15
3. Quasi-Contract Claim — Count V — Undersea against ITT (paragraphs 7(A), 7(B), 7(C), 19, 20 and 21) for unjust enrichment under the subcontract, seeking the same amount of recovery as sought in Counts I and II, differing only in theory of recovery.
16
4. Tort Claim — Count III — Undersea against ITT and Healy-Tibbitts (paragraphs 7(D), 14 and 15), whereby Undersea seeks $36,077.36 for damage to an offshore four-point vessel moor constructed by Undersea under the subcontract.
17
5. Economic Coercion Claim — Count VI — Undersea against ITT (paragraphs 7, 22, 23, 24 and 25), whereby Undersea alleges wrongs inflicted upon it by ITT, pleads the settlement agreement, and seeks to have it set aside or avoided as having been made under economic coercion.
18
6. Shelton Quasi-Contract Claim — Count IV — Shelton against ITT (paragraphs 7, 16, 17 and 18), whereby Shelton, a sub-subcontractor under Undersea, claims damages from ITT, the prime contractor, under a quasi-contract theory for alleged services rendered, materials supplied and moneys advanced to Undersea in the amount of $88,290.15.
19
Subcontract SK-714559 was executed by Undersea and ITT in June 1966. The record is perfectly clear that very shortly thereafter, four chief areas of dispute arose between Undersea and ITT:
20
1. Support Services Claim — Count I. The subcontract provided that Undersea would make available to ITT vessels, divers, and other support services on an "as required" basis at a per diem or weekly rate for support services actually rendered. Undersea maintained that ITT was obligated to use Undersea services for all requirements ITT might have for any such support services. ITT claimed that it need utilize only such services as it might, in its election, request, and this area of dispute was clearly identified as early as November 17, 1966 in a letter from Undersea to ITT (Ex. 3) and ITT's rejection of Undersea's contentions by its letter of March 29, 1967 (Ex. 19). Undersea, by letter of April 5, 1967 (Ex. 22), nevertheless made a claim of overhead and loss of profit for the support services not utilized by ITT. This claim never did reflect a liquidated sum.
21
2. Delay Charge Claim — Count II. Certain portions of Undersea's contract could not be done until the cable-laying ship "Giant", under charter to ITT by North American Aviation, Inc., arrived off Kauai. Under ITT's charter agreement the "Giant" was to have arrived in August 1966, but due to factors over which ITT had no control, it did not arrive until February 11, 1967. This delay held up certain work of Undersea, and Undersea as early as December 13, 1966 (Ex. 4) notified ITT of its intention to claim for "delay charges" while its equipment and personnel were on a forced standby basis, and by letter dated January 13, 1967 (Ex. 7) Undersea claimed $27,744.92 as "delay charges". This was an unliquidated claim. On February 15, 1967 (Ex. 10) ITT rejected that claim.
22
Undersea on March 1, 1967 (Ex. 11) notified ITT it would continue under the subcontract but would reserve its rights as to the delay charge claim. By letter of April 4, 1967 (Ex. 21), Undersea again made a delay charge claim (some three times higher than the January 13 claim). This, too, was an unliquidated claim. By letter dated April 11, 1967 (Ex. 25), ITT simply said it was "reviewing the claim."
23
3. Price Increase Claim — Count II. Basing its claim upon the contention that the delays had thrown its performance under the subcontract from the calm summer months into the winter bad weather months, Undersea, on January 13, 1967 (Ex. 7), demanded of ITT an increase in price for certain portions of the job, asking an estimated sum of $41,600. On February 15, 1967 (Ex. 10) ITT rejected any claim for additional compensation.
24
On March 1, 1967 (Ex. 11), Undersea notified ITT it would continue to perform under the subcontract but reserved the right to a price increase claim, and on March 20, 1967 (Ex. 17) Undersea again notified ITT it intended to reassert its claim for an increase in price. By two letters of April 5, 1967 (Ex. 22 and 23), Undersea again presented a claim for an increase in the contract price due to the delays, etc., and on April 11, 1967 (Ex. 25) ITT notified Undersea its claim was being reviewed.
25
4. Supplement No. 1 Dispute — Count II. During certain negotiations between January 6 and 13, 1967, the parties agreed upon certain modifications of the scope of work and a reduction of the total fixed-price portion of the subcontract to $170,000, and by letter dated January 26, 1967 (Ex. 9) Undersea acknowledged that a reduction in price had been negotiated. Then, on March 23, 1967 (Ex. 18), Undersea informed ITT that the amendment would not be accepted until ITT acknowledged it would pay Undersea the support services claim, delay charge claim, and price increase claim.
26
On March 29, 1967 (Ex. 19) ITT notified Undersea that the negotiated amendment was in effect, and thereafter made claims against Undersea for defective work and of its own intention to make claims against Undersea therefor (Ex. 25).
27
There is only one conclusion which can be drawn from the above uncontested facts, viz., all of these four claims were the subjects of dispute by April 5, 1967, at which time Undersea could have treated the subcontract as terminated and sued ITT upon its claims, but it did not do so. While Undersea continued to perform the subcontract — rather than terminate and sue — Undersea nevertheless fired a barrage of suit-threat letters manifestly intended to high-pressure ITT into recognition and settlement of the disputed claims.
28
On May 2, 1967 (Ex. 26), David M. Glickman, vice-president of Undersea, an attorney at law admitted to practice in the State of California, wrote to ITT, as an attorney, demanding that it immediately negotiate and pay Undersea's claims, then inferentially threatening that if the claims were not paid, Undersea would sue for such damages as would "hurt the defendant, by way of punishment", etc. Thereafter on May 29, 1967 (Ex. 28), ITT advised Undersea that its legal department would contact Glickman, and by the same communication ITT again laid out the areas of Undersea's defective or incomplete work and demanded immediate corrective action. On June 7 and 14, 1967 (Ex. 30 and 31) ITT again demanded that Undersea complete its defective work and indicated that it had paid Undersea $143,305, or 84%, of the total fixed-price portion of the subcontract (as renegotiated), outside of other sums paid.
29
On June 20, 1967 (Ex. 32) Glickman again writing as "attorney at law", informed ITT he was drafting a complaint against ITT and the United States for the Undersea claims and that Undersea would also make a multi-million dollar claim for punitive damages, and indicated that a carbon copy of the letter was being sent to the Contracting Officer of the Naval Air Systems Command, ITT's employer under the prime contract.
30
On June 20, 1967 (Ex. 33) ITT advised Undersea that "it is the intention of ITT Federal Laboratories to negotiate a realistic settlement and this company's counterclaims which have arisen under Subcontract 714559." Thereafter, on July 7, 1967, ITT's and Undersea's officers in Honolulu attempted but failed to reach a settlement. On July 17, 1967 (Ex. 35), as requested by Undersea, ITT set forth a list of setoffs amounting to $69,708. On August 3, 1967 (Ex. 36), Glickman rejected each offset claim as invalid. Then on August 15, 1967 (Ex. 40) Glickman threatened that if Undersea did not receive the money "it had coming" from ITT it would bring suit "for approximately $200,000.00 in compensatory damages" and "One Hundred Million Dollars ($100,000,000.00) punitive damages, because of the malice and economic oppression of ITTFL against our company (including the statement openly made, `We're going to break you financially.')" Glickman also threatened "to print 2,000 copies of all legal documents" filed and to "send a copy of each one to: every congressman and senator, the governor of every state of the union, the Public Utilities Commission of every state, the heads of state of the 57 countries in which I. T. T. does business, the wire services and the editors of principal U. S. and foreign newspapers, and every company with which I. T. T. does business", and that it would continue to keep all of the above "entities informed * * * throughout the two or three years that the law suit will be in progress." Glickman also threatened that they would "make an immediate, formal complaint against I. T. T. with the United States Department of Justice", as well as the Federal Communications Commission. He then concluded his letter by offering to settle for $108,000.
31
On September 19, 1967 (Ex. 44) Glickman wrote to Mr. H. D. Fugitt, Contracting Officer, Department of the Navy, Naval Air Systems Command, Washington, D. C. 20360, with carbon copy addressed to Harold S. Geneen, President of ITT, stating that ITT owed Undersea nearly $200,000 under the subcontract, threatened that Undersea was going to file suit against ITT and would have to include the U. S. Navy, and concluded that "if your office has not yet paid I.T.T. for the work in question, you may wish to withhold payment."
32
On September 22, 1967 (Ex. 45) ITT set out its position concerning the validity of Undersea's claims and ITT's counterclaims. Then stated: "[W]e are prepared to offer UEC the sum of $40,000.00 in full settlement of all claims and counterclaims arising out of this transaction. * * * In the event UEC accepts this offer we would expect UEC to forward to us a general release from any and all claims it might have against ITTFL under this subcontract."
33
On September 28, 1967 (Ex. 46) ITT again offered $40,000 in settlement of all of Undersea's claims separate and apart from the fixed-price portion of the subcontract, and offered an additional $5,000 to settle the fixed-price portion, stating: "Have in hand check payable to UEC for $45,000 in total settlement of all UEC claims for all amounts due under SK-714559. * * * Can mail check upon receipt of written acceptance of this offer which shall state that `ITTFL is released from any and all claims in connection with the subcontract.'" Undersea cabled as follows (Ex. 48): "We accept your offer ITTFL is released from any and all claims in connection with the subcontract", and by letter of October 3, 1967 (Ex. 50) wrote that Undersea "hereby releases ITTFL from any and all claims in connection with ITTFL subcontract No. SK-714559, upon receipt of $45,000.00 as outlined in your TWX dated September 28, 1967."
34
By letter of October 5, 1967 (Ex. 51) ITT wrote Undersea enclosing the check and stating: "We have enclosed our check in the amount of $45,000.00 payable to UEC in recognition of our settlement of all claims of whatsoever nature that have any connection with ITTFL subcontract No. SK-714559", and on the back of the settlement check (Ex. 52) and above the endorsement of Undersea thereon was stated: "This check represents final payment under subcontract No. SK-714559 pursuant to a settlement by which UEC has released ITTFL from any and all further liability."
35
The above recited facts are uncontested and undenied by Undersea, and Undersea has offered no facts (as distinguished from assertions) in contradiction thereof. Under Rule 56 F.R. Civ.P., this court can and does therefore accept them as true. The terms of the general release are definite and certain and the release forecloses Undersea from asserting its contract (Counts I and II), quasi-contract (Count V) and tort (Count III) claims against ITT, because each of Undersea's claims now sued upon springs from, and arises out of and in connection with, the subcontract, and involves unliquidated claims asserted against ITT and disputed by ITT which arose prior to the execution of the releases. The releases are so unambiguous that it is not necessary for this court to resort to any extrinsic evidence in order to determine the scope of these releases. On the face of the releases, therefore, Undersea has no legal basis for the suit it has filed.
36
Undersea maintains however that the releases are voidable because it executed the releases only under the economic coercion of ITT, maintaining that ITT pursued a deliberate course of withholding payments due Undersea under the subcontract, thereby placing Undersea in a state of bankruptcy as of August 1967, and that ITT took advantage of Undersea's financial distress by offering only $45,000 in settlement. Bypassing for the moment the impact of the undisputed facts, setting forth clearly the history of the events leading up to the settlement and showing without question that Undersea was using every threat of economic and moral pressure to coerce and force ITT to settle rather than face a law suit with threatened world-wide publicity engendered by Undersea, Undersea's claim of economic coercion is not well founded as a matter of law.
37
Just as in W. R. Grimshaw Co. v. Nevil C. Withrow Co., 248 F.2d 896, 902-904 (8 Cir. 1957), in order to establish its claim of economic duress in the face of the motion for summary judgment, the plaintiff here must present facts which show (1) that it involuntarily accepted ITT's terms, (2) that circumstances permitted no other alternative, and (3) that the circumstances were the result of the coercive acts of ITT. No such facts have been set out by Undersea, neither by affidavit nor exhibits. There is no fact apparent to this court which indicates that Undersea entered involuntarily into the settlement. Undersea's vice-president, Glickman, was the prime mover in instituting the negotiations from which the settlement resulted. The negotiations extended over a period of almost six months. As early as June 1966 Undersea threatened and could have filed suit but instead, chose to pursue the avenue of settlement. Duress requires, however, that the execution of the agreement sought to be avoided was the only choice reasonably available to the party challenging it. Where, as is manifest here, the avenue of litigation is open to the challenging party but he chooses not to pursue it, it cannot be said that the subsequent settlement was a product of duress.2
38
The basic premise of counsel for Undersea in his cited law and argument has been that the relative financial positions of the parties, viz., that ITT was a "multi-billion corporate giant" (an elephant), while Undersea was capitalized at but $25,000 when it undertook the contract (an ant), makes out a prima facie or per se showing of economic coercion (because of the overwhelming disparity in size of the two parties, and ITT's superior economic position better enabled it to resist the demands of Undersea). Unfortunately for plaintiffs' position, this is not the law on economic coercion.
39
ITT cannot be held responsible for the amount of Undersea's capitalization, nor is it sufficient for Undersea simply to plead that the elephant's refusal to pay the claims of the ant was wrongful or coercive conduct, per se making the former responsible for the latter's financial circumstances. Even if we assume that the acceptance of ITT's settlement offer was motivated by impending bankruptcy, economic duress is not thereby established.
40
"In order to substantiate the allegation of economic duress or business compulsion, the plaintiff must go beyond the mere showing of reluctance to accept and of financial embarrassment. There must be a showing of acts on the part of the defendant which produced these two factors. The assertion of duress must be proven by evidence that the duress resulted from defendant's wrongful and oppressive conduct and not by plaintiff's necessities.3
41
The claims made by Undersea were all matters which had been in dispute for months, as were the counterclaims asserted by ITT. The claims and counterclaims were all unliquidated and therefore, perforce were subject to negotiation between the parties. The claims advanced by Undersea arose out of circumstances which could not have been known to ITT at the time it submitted its prime contract bid (even if, as argued by Undersea, ITT had deliberately underbid the prime contract it had with the U. S. Navy with any secret intention that Undersea might conjure up), e. g., delay in the arrival of the "Giant", questions relating to the interpretation of the subcontract, damage to a vessel moor constructed by Undersea, and questions arising out of the renegotiation of the fixed-price portion of the subcontract. Likewise, Undersea's claim that a lone employee of ITT, at some undisclosed time long prior to the settlement, stated that it (ITT) would break Undersea financially, is without weight in the context of Undersea's instant claim of economic duress.4
42
The undisputed facts herein show that the making of the settlement agreement by Undersea was voluntary as a matter of law. It was made by Undersea as an alternative to the filing of suit and it was not made as a result of any wrongful or deliberately coercive conduct on the part of ITT amounting to economic duress. Under the undisputed facts in this case, this court may by summary judgment dispose of a claim for relief from a release based upon Undersea's claim in avoidance of economic duress.5
43
The undisputed facts in this case mandate the conclusion that the release given by Undersea to ITT is not invalid as being a product of economic coercion. The release and agreement of compromise in settlement is therefore binding on the parties thereto. The claims now asserted by Undersea in this law suit are each and all encompassed within the purview of the release and Undersea's claims are barred thereby.
44
There still remains to be disposed of, however, the claim of Undersea against Healy-Tibbitts. Inasmuch as Undersea's allegation is that ITT and Healy-Tibbitts acted as joint tort feasors in destroying the four-point vessel moor constructed by Undersea, and Undersea has by its prayer postured this case as founded in admiralty,6 this court could but simply apply the federal rule that the release of one of several joint tort feasors without specifically naming in the release the other joint tort feasors not intended to be released thereby, has the effect of releasing all joint tort feasors not so excluded,7 and on that basis dismiss the Healy-Tibbitts claim.
45
However, it is undisputed that Undersea was paid the full subcontract price of $28,000 for its work done on the vessel moor and although subsequently ITT discovered that the damage done to the moor by the Healy-Tibbitts barge was the result of faulty construction of the moor by Undersea and not attributable to Healy-Tibbitts, ITT thereafter replaced the entire mooring structure at its own cost and expense (Ex. 35 and 36). It is manifest, therefore, that Undersea has suffered no damage. On either or both bases, therefore, the Undersea claim against Healy-Tibbitts is without legal or factual support and must be dismissed.
46
Last to be considered is the Shelton quasi-contract claim, Count IV of the complaint. Therein Shelton realleges the ITT-Undersea subcontract with Shelton as a sub-subcontractor under Undersea. Then Shelton pleads that relying upon the contract between ITT and Undersea by which ITT was obligated to pay for the labor, materials, etc., "furnished and performed * * * by Undersea, Shelton did furnish work, labor and services, materials, supplies and equipment and advanced money to Undersea in connection with the said subcontract to the value of $88,290.15." Shelton continues to plead that because ITT was paid by the U. S. Navy its full contract price which included the work done for Undersea by Shelton and did not thereafter pay the "sums due under the said subcontract with Undersea", ITT was unjustly enriched and should be declared to be the constructive trustee, in favor of Shelton, of the $88,290.15. Shelton's theory of recovery blithely bypasses the admitted fact of payment by ITT to Undersea of a total of about $247,000 because of the subcontract. Presumptively, Shelton's $88,290.15 claim was for work done by it for which Undersea collected from ITT, and Shelton does not negate that presumption.
47
Moreover, however, in the absence of legislation specifically permitting the same,8 a sub-subcontractor who is not paid by the subcontractor for whom the "sub-sub" has, under contract, rendered work and labor has no claim in quasi-contract, or equity against the prime contractor with whom the "sub-sub" had no contractual dealings whatsoever. There is no allegation of any privity here between ITT and Shelton, and as stated in plaintiffs' complaint, the work Shelton did was done under its express (sub) contract with Undersea, thus negating any implied contract with ITT based on any benefits ITT may have received. Where work and labor is performed under a contract, suit must be between parties to the contract, and third-persons although benefited by the work cannot be sued on an implied assumpsit to pay for that benefit.9 Shelton, therefore, has set forth no valid claim against ITT. Its claim, if any, is against Undersea.
48
Defendants' motion for summary judgment is in all particulars granted.
49
The release agreement entered into between Undersea and ITT was intended to be a complete release of all claims and counterclaims of the parties. The court, having held that release to be valid, defendants' counterclaims must be dismissed, and it is so ordered.
50
Let judgment be entered in accord with these rulings.
51
Dated: Honolulu Hawaii, this 26th day of August, 1968.
52
Martin Pence
United States District Judge
53
Filed in the United States District Court, District of Hawaii, August 26, 1968, at 11 o'clock and 5 minutes A.M.
54
A. Y. H. Chinn, Clerk,
By Ione Akana, Deputy.
Notes:
1
All exhibits hereafter referred to are defendants numbered exhibits
2
Joyce v. Year Investments, Inc., 45 Ill. App.2d 310, 196 N.E.2d 24 (1964)
3
W. R. Grimshaw Co. v. Nevil C. Withrow Co.,supra, at 904. See also, Fabert Motors, Inc. v. Ford Motor Company, 355 F.2d 888, 890-891 (7 Cir. 1966); California Concrete Pipe Co. v. American Pipe & Construction Company et al. (D.Haw. 1968). Cf. Carter v. Twentieth Century-Fox Film Corporation, 127 F.Supp. 675 (W.D.Mo.1955).
4
Alloy Products Corp. v. United States, 302 F.2d 528, 530-531, 157 Ct.Cl. 376 (1962)
5
Williamson v. Bendix Corporation, 289 F.2d 389, 392-393 (7 Cir. 1961); Suckow Borax Mines Consol. v. Borax Consolidated Ltd., 185 F.2d 196 (9 Cir. 1950), cert. denied 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680 (1951); California Concrete Pipe Co. v. American Pipe & Construction Company,supra.
6
"WHEREFORE, Libellants pray: 1. That process in due form of law, according to the course and practice of this Honorable Court in causes of admiralty and maritime jurisdiction, may issue against the Respondents. * * *" (Complaint, p. 9)
Plaintiffs' statement as to the basis of this court's jurisdiction is, of course, not binding upon the court. By the preceding reference to plaintiffs' complaint, it must not be assumed that this court agrees that this case is properly laid in admiralty. The court has jurisdiction under the diversity aspects of this case.
7
Twentieth Century-Fox F. Corp. v. Winchester Drive-In Th., 351 F.2d 925 (9 Cir. 1965), cert. denied 382 U.S. 1101, 86 S.Ct. 620, 15 L.Ed.2d 526 (1966); California Concrete Pipe Co. v. American Pipe & Construction Company,supra.
8
Cf. "Miller Act", 40 U.S.C. § 270b; Mechanic's Lien Law, RLH 1955, C. 193, part II.
9
Tropic Builders, Ltd. v. Naval Ammunition Depot, 48 Haw. 306, 323-324, 402 P.2d 440, 450-451 (1965); Utschig v. McClone, 16 Wis.2d 506, 114 N.W.2d 854 (1962)
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671 S.E.2d 879 (2008)
ANDREWS
v.
HABITAT FOR HUMANITY IN ATLANTA, INC.
No. A08A1695.
Court of Appeals of Georgia.
December 29, 2008.
*880 Geraldine Andrews, pro se.
Michael C. McGoff, Atlanta, for appellee.
JOHNSON, Presiding Judge.
Geraldine Andrews, acting pro se, sued Habitat for Humanity in Atlanta, Inc., seeking to enjoin Habitat from erecting a fence on property in which she claimed to possess a prescriptive easement. The trial court granted Habitat's motion for summary judgment, and Andrews appeals. Discerning no error, we affirm.
On appeal from the grant of summary judgment, this Court "conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."[1] So viewed, the record shows that in 1997, Andrews purchased property located at 1044 Sparks Street in Atlanta. Andrews never resided at the property, but she leased it to several tenants.
When Andrews visited the property, she would park her car in what she referred to as an "unpaved driveway" that "may overlap the property line" with the adjacent property at 1040 Sparks Street. None of Andrews' tenants ever parked in the driveway, but her niece and several workmen claimed that they also parked there when they visited the property. In 2006, Habitat purchased the adjacent property at 1040 Sparks Street and installed a silt fence thereon. Andrews claimed that the fence interfered with her use of the driveway such that it was a "tight squeeze" for her to park there.
We first note that Andrews' "enumeration of errors" does not assert any clearly defined legal error, but is merely a statement of factual contentions.[2] Even if *881 we consider Andrews' statements as alleging trial court error in granting Habitat's motion for summary judgment, Andrews' pro se appellate brief fails to provide any references to the record. Court of Appeals Rule 25(c)(2)(i) provides that "[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration." "It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record."[3] Moreover, allegations of fact appearing only in appellate briefs and unsupported by evidence in the record will not be considered on appeal.[4]
Notwithstanding Andrews' failure to comply with this Court's rules and properly cite to trial court error, we also find that the purported claim of error lacks merit. While Andrews argues that she possesses a prescriptive easement in the unpaved driveway, a claim of prescriptive title requires, among other things, proof that the possession was public, continuous, exclusive, uninterrupted, peaceable, adverse, and accompanied by a claim of right.[5]
While Andrews argues on appeal that she never shared use of the driveway, she admitted below that the driveway was "common" and available to both 1040 and 1044 Sparks Street. This assertion negates her claim to a prescriptive easement barring some evidence showing she provided notice "by repairs or otherwise, that [s]he has changed [her] position from that of a mere licensee to that of a prescriber."[6] In support of her contention that she provided such notice, Andrews claims that her tenant mowed the area over the driveway and kept it free of trash and debris, and that she once "had the demolition company [that tore down the original house at 1040 Sparks Street] redistribute gravel on the driveway after they disturbed it." However, "mere acts of keeping grass out of or passing over the driveway cannot accomplish prescription,"[7] and Andrews has failed to provide any evidence that her claimed "repairs" were sufficient to provide Habitat or any prior owner of 1040 Sparks Street with notice of an adverse claim of right.[8]
While Andrews may have presented evidence in support of her claim at the injunction hearing, she failed to file a transcript of those proceedings and did not attempt to reconstruct the proceedings in accordance with OCGA § 5-6-41(g) and (i). Therefore, "we must presume that the trial court's findings are supported by competent evidence and that the court applied the appropriate standard in granting summary judgment."[9]
Judgment affirmed.
BARNES, C.J., and PHIPPS, J., concur.
NOTES
[1] (Citation omitted.) Merlino v. City of Atlanta, 283 Ga. 186, 657 S.E.2d 859 (2008).
[2] See Felix v. State, 271 Ga. 534, 539, 523 S.E.2d 1 (1999) (In order for a Georgia appellate court to review a trial court ruling for legal error, "a party must set forth in the enumeration of errors the allegedly erroneous ruling" made by the trial court.).
[3] (Punctuation and footnote omitted.) Dwyer v. Mtg. Electronic Registration Systems, 258 Ga. App. 220, 573 S.E.2d 489 (2002).
[4] See Hallisy v. Snyder, 219 Ga.App. 128, 129(2), 464 S.E.2d 219 (1995).
[5] Norton v. Holcomb, 285 Ga.App. 78, 80-81(2), 646 S.E.2d 94 (2007).
[6] (Citation and punctuation omitted.) Hobbs v. Lovelady, 272 Ga.App. 111, 112(1), 611 S.E.2d 661 (2005).
[7] Id. at 113(1), 611 S.E.2d 661.
[8] See Ga. Pacific Corp. v. Johns, 204 Ga.App. 594, 595, 420 S.E.2d 39 (1992) ("The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.") (citation and punctuation omitted; emphasis in original).
[9] Hatcher v. Family Dollar Stores of Ga., 280 Ga.App. 191, 192, 633 S.E.2d 568 (2006)
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Fourth Court of Appeals
San Antonio, Texas
December 18, 2019
No. 04-19-00748-CV
IN RE Eukesha MAYE
Original Mandamus Proceeding 1
ORDER
On October 23, 2019, relator filed a petition for writ of mandamus. Relator also filed a
motion for stay of the underlying proceedings pending final resolution of the petition for writ of
mandamus, which this court granted on October 24, 2019. The real party in interest filed a
response, to which relator replied. After considering the petition, response, reply, and record, this
court concludes relator is not entitled to the relief sought. Accordingly, the petition for writ of
mandamus is denied. See TEX. R. APP. P. 52.8(a). The stay imposed on October 24, 2019 is lifted.
It is so ORDERED on December 18, 2019.
_____________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of December, 2019.
_____________________________
Michael A. Cruz, Clerk of Court
1
This proceeding arises out of Cause No. 2006-CI-04682, styled In the Interest of C.K.W. and C.K.W., Children,
pending in the 73rd Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
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90 Ariz. 350 (1962)
367 P.2d 956
Aurello A. CRAMER, Appellant,
v.
EMPLOYMENT SECURITY COMMISSION OF ARIZONA, Appellee.
No. 7367.
Supreme Court of Arizona. En Banc.
January 10, 1962.
*351 George W. Oglesby, Nogales, for appellant.
Robert W. Pickrell, Atty. Gen., Richard J. Daniels, Asst. Atty. Gen., for appellee.
UDALL, Vice Chief Justice.
This is an appeal from a judgment of the Superior Court of Santa Cruz County affirming the Employment Security Commission's denial of unemployment benefits to claimant Aurelio Cramer for the period August 28th to October 2d, 1960 inclusive.
On June 15, 1960, claimant, then an unmarried 19-year-old youth living in Nogales, Arizona with his stepfather, William Cramer, was laid off for the summer months by his employer, the Citizens Utility Company of Nogales. On July 6, 1960, claimant filed for and thereafter received (effective July 3, 1960) unemployment benefits through the week ending August 28, 1960. After that date, however, it was determined that claimant was no longer "available for work"[1] (and hence no longer "eligible" for benefits) principally because of his conduct on August 31st and September 1st of 1960.
A representative of an employer, the Pena Blanca Dam, called upon R.W. Schiltz, manager of the Nogales State Unemployment Service, on August 31, 1960 and asked for a man to "chop some weeds and clean up around the place at $1 an hour", such job to last a week to ten days. The representative desired to return to the Dam with the new man either late that afternoon or at 10 o'clock the next morning. Schiltz asked claimant's stepfather, who happened to be in the unemployment office on the afternoon of August 31, 1960, if he would inform claimant of the job opportunity and have him report to the office "right away".
The stepfather so informed claimant but not until after the unemployment office had closed for the day on August 31st. On the following morning (September 1, 1960) instead of reporting to the unemployment office claimant allegedly chose to interview (unsuccessfully) for a job with a local gas station. However, neither before the alleged 10 a.m. appointment at the gas station nor at any time on September 1, 1960, did claimant report to the unemployment *352 office. Such conduct on the part of the claimant led Schiltz to report the incident in a "Statement Relating to Applicant's Availability for Work" and became the basis for a subsequent determination by Commission deputy E.J. Kerley that claimant was unavailable for work as of August 28, 1960.[2]
Kerley's decision of September 17, 1960 was affirmed by an Appeal Tribunal on November 1, 1960 after a full hearing on the matter on October 26, 1960. At the hearing claimant was questioned extensively regarding his efforts to secure work before and after the incident on August 31st and September 1st of 1960. He could relate but few job inquiries, and with respect to these he was often unable to remember the nature of the work or the location and names of the prospective employers involved. He testified that his failure to report to the unemployment office on September 1st was due to his belief that the job had been filled the previous afternoon. This testimony was controverted by that of the stepfather that he had asked claimant if he was going to check with the unemployment office on the morning of September 1st. And claimant acknowledged having signed a written statement in the presence of Schiltz to the effect that claimant did "not have any reason for failing to report to the employment office" on September 1st.
The Appeal Tribunal's decision[3] was affirmed by the Commission on December 29, 1960 in the following language:
"In the instant case the evidence is that the claimant was unemployed for 2 1/2 months prior to the time the Employment Service notified his stepfather there was a possibility of a temporary job for him. In spite of this, he did not immediately attempt to contact the Employment Service even though the opportunity was available to him, but waited over one day before even investigating this possible job opportunity. This, in itself, is an indication that he was not sincerely interested in becoming re-employed. In addition, the number of work contacts he made during the period in question are extremely limited and he failed to report for a definite job opening for which he had been accepted *353 in Fort Huachuca. We therefore find that the claimant was unavailable for work from August 28, 1960, through October 2, 1960."[4]
Affirmance without opinion by the Superior Court followed on July 1, 1961.
Availability is an eligibility requirement found in the unemployment compensation law of every state. Although it has never been and probably cannot be precisely defined, Mohler v. Department of Labor, 409 Ill. 79, 83, 97 N.E.2d 762, 764, 24 A.L.R.2d 1393 (1951), it "is said to be satisfied when an individual is willing, able, and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market." Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1945); Beaman v. Safeway Stores, 78 Ariz. 195, 200, 277 P.2d 1010, 1013 (1954). There being no hard and fast rule as to when a claimant is actually "available for work", such must be determined from and in light of the circumstances of each case. Hunter v. Miller, 148 Neb. 402, 405, 27 N.W.2d 638, 640 (1947).
The purpose of the requirement that a claimant be "available for work" "is to test the claimant's attachment to the labor market. It is to determine if he is unemployed because of lack of suitable job opportunities or for some other reason such as physical incapacity or unwillingness to work." Roukey v. Riley, 96 N.H. 351, 352, 77 A.2d 30, 31 (1950).
Unless a claimant first demonstrates that he is eligible for benefits by a showing that he is, inter alia, "available for work" the question never arises as to whether he is disqualified from receiving compensation by his refusal to accept suitable employment.[5] One authority sees the relationship between the availability requirement and the work refusal disqualification to be as follows:
"The availability requirement, in statutory perspective, may be best viewed as a gross sieve designed to keep the patently unqualified from entering or staying in the benefit system. Thus it becomes a routine check of the claimants' circumstances. For claimants who pass this routine check there remains the more exact probe of the offer of suitable work."
* * * * * *
"The fine sieve is the work offer, the secondary line of defense. The *354 available claimant who refuses it, when the work is suitable and he has no good cause, becomes subject to disqualification. Because the work offer should be carefully adjusted to the claimant and his circumstances, it is not to be wasted on one who is clearly not in the labor force. The suggested argument saves availability from over-refinement and puts the onus of more precise adjustment where it belongs on the work refusal disqualification."
Altman, Availability For Work, 94, 113 (1950).
This court has recognized that a claimant may be disqualified by reason of a work refusal without good cause and yet continue to be "available for work." Beaman v. Safeway Stores, supra, 78 Ariz. at 200, 277 P.2d at 1013. And of course conduct which approaches but does not constitute a work refusal so as to disqualify under Section 23-776 should not, without more, render one "unavailable for work" and therefore ineligible under Section 23-771. Nevertheless, there is a nexus between the availability requirement and the work refusal disqualification to the extent that a job refusal indicates lack of good faith and a general unwillingness to work. When that happens one has effectively removed himself from the labor market and is no longer "available for work." See, e.g., Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577 (1946); W.T. Grant Co. v. Board of Review of Unemp. Comp. Com., 129 N.J.L. 402, 29 A.2d 858 (1943); Hassey v. Unemployment Compensation Board of Review, 162 Pa.Super. 14, 56 A.2d 400 (1948).
Another factor necessarily related to claimant's availability is his conduct with respect to securing new work. See generally, Williams, Eligibility For Benefits, 8 Vand.L.Rev. 286, 290-306 (1955). As of 1958 the laws of 27 states required applicants for unemployment compensation to be "actively seeking work or making a reasonable effort to obtain work."[6] And this requirement of active search for work has been read into the availability requirement law by court decisions as well. See, e.g., Dan River Mills, Inc. v. Unemployment Compensation Com'n, 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954). We think the actively seeking work requirement is inherent in the very meaning of "available for work."
In at least one jurisdiction the act of registering for work at the unemployment office (see A.R.S. § 23-771, subd. 1) by the claimant is enough to raise a rebuttable presumption of availability. Bliley Electric Co. v. Unemployment Comp. Bd. of Rev., 158 Pa.Super. 548, 45 A.2d *355 898 (1946). But Arizona is in accord with the majority rule that the burden of proving availability is upon the claimant and that the mere act of registration gives him no procedural advantage in establishing the merits of his claim. Vickers v. Western Electric Co., 86 Ariz. 7, 11-13, 339 P.2d 1033, 1036 (1959). See also Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743 (1943). In order that appeal to the Superior Court from a denial of benefits may be more than an empty right, however, it is required that such a finding be supported by "competent, material and substantial evidence in view of the entire record * * *." A.R.S. § 23-681, subd. D, par. 5. In this regard we quote with approval the language of Mr. Justice (then Judge) Brennan in Krauss v. A. & M. Karagheusian, 13 N.J. 447, 456, 457, 100 A.2d 277, 282 (1953) wherein he remarked that:
"* * * the matter of burden of proof must necessarily be viewed in the light of the superior position in which the statute places the agency to enable it to know and get the facts to assure the correct discharge of its duty properly to allow or disallow benefits.[7]
* * * * * *
"Plainly the statute casts upon the agency, as respects both original and appellate determinations, the role actively to press the interested parties to produce all relevant proofs at their command and, when necessary, independently to take steps to get the facts, as, for example, when the record made by the parties is unsatisfactory or there is fair reason to doubt the reliability of the proofs as a basis for decision or the agency in any case has reason to believe that additional facts obtained and made part of the record on its own initiative will contribute to a correct result."
In light of what has been said above we conclude that there is "competent, material and substantial evidence" in the record to support the Commission's decision that claimant was "unavailable for work" during the times specified. Claimant's behavior after being informed of the job opening at the Dam, when coupled with his testimony relating to attempts to secure other employment, disclosed at best only a passive interest in obtaining work.[8] He was not "genuinely attached to the labor market."
It is true that the Employment Security Act is remedial and should be *356 liberally construed in keeping with its beneficent purposes. But this rule alone cannot displace the requirement that claimant show why he is entitled to benefits under the act. Hunter v. Miller, supra, 148 Neb. at 404, 27 N.W.2d at 639. "The basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Krauss v. A. & M. Karagheusian, supra, 13 N.J. at 455-56, 100 A.2d at 281.
For the reasons stated the judgment is affirmed.
BERNSTEIN, C.J., and STRUCKMEYER, JENNINGS and LOCKWOOD, JJ., concur.
NOTES
[1] A.R.S. § 23-771 (1956) provides in pertinent part:
"An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that:
* * * * *
"3. He is * * * available for work."
[2] Kerley's report was as follows:
"The claimant failed to report to the Employment Service promptly for a job interview as directed. This resulted in his being too late for the job. His actions indicate that he is not making a sincere effort to secure employment. The claimant is not available for work as of August 28, 1960."
[3] "* * * [W]e wish to emphasize that we do not hold the claimant unavailable for work on the sole basis of his failure to immediately report for the job interview. However, we do hold him unavailable by reason that we do not believe he had a genuine attachment to the labor market or that he was sincerely interested in obtaining work during the period he was unemployed."
[4] Claimant returned to his former job in the ice plant at Citizens Utility Company on October 3rd, 1960.
[5] A.R.S. § 23-776, subd. A, provides for disqualification from benefits "if the commission finds he has failed without good cause either to apply for available, suitable work, when so directed by the employment office or the commission, or to accept suitable work when offered him * * *."
[6] U.S. Department of Labor, Bureau of Employment Security, Comparison of State Unemployment Insurance Laws, 85 (1958).
[7] See A.R.S. §§ 23-675 to 23-678.
[8] It should be noted that in upholding this denial of benefits on the ground of unavailability we do not rely upon the factor that claimant during the week of September 17, 1960 failed to report to a temporary job in Fort Huachuca which is 65 miles from Nogales. Cf., Phelps Dodge Corp., etc., v. Industrial Commission, 90 Ariz. ___, 367 P.2d 270.
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In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-11-00245-CV
OLYMPIA GUNN, APPELLANT
V.
BAPTIST/ST. ANTHONY'S HEALTH NETWORK, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 96,367-C, Honorable Ana Estevez, Presiding
May 31, 2013
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
After she was injured on the job, appellant Olympia Gunn signed a waiver subject
to Texas Labor Code § 406.033.1 When she later sued her employer, the trial court
granted a summary take-nothing judgment in favor of the employer. She appeals. We
will affirm.
1
Texas Labor Code Ann. § 406.033 (West 2011).
Background
Gunn began work as an overnight nurse at Baptist St. Anthony’s Health Network
(“BSA”) in May 2004. BSA does not carry worker’s compensation coverage; employees
injured on the job are covered by a “voluntary employee injury program.”
Gunn’s pleadings asserted her neck and shoulder were injured in February 2006.
She testified on deposition that she was injured when a patient became combative after
she removed some restraints during nursing care. Gunn testified that as she put clean
sheets underneath the patient, he “shoved my head down,” and she “heard my neck
pop.” The patient had a contagious herpes infection, and Gunn was dealing with him
alone because the nurse trainee working with her refused to assist her. Gunn asked
her supervisor for additional help but was told “we are shorthanded, do the best you
can, there’s nobody I can send you.”
Gunn’s injury occurred during the shift that ended at 7:00 in the morning on
February 4, a Saturday. She returned to begin another shift at 7:00 p.m. that same day,
and reported her injury to her supervisor at that time. She also completed, on the same
day, a written report describing her injury. She testified, “[T]hat’s when I filled out the
incident report and told them how bad I was hurting.”
Beverly Lewis is the employee health manager for BSA. Her office is open only
on weekdays. She testified, in her deposition, BSA policy requires work-related injuries
occurring after hours or on weekends to be reported to the supervisor. Her office would
have received notice of Gunn’s injury no earlier than the Monday following the injury.
2
On February 16, 2006, Gunn was examined by Dr. Neil Veggeberg, a
nonemergency room physician. The next day, February 17, she signed BSA’s
Occupational Injury Benefit Program Acceptance and Waiver, with Lewis as a witness.
The one-page document included the following paragraph:
WAIVER: In exchange for my enrollment and election to participate in the
program: I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE
UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW
EXISTING OR ARISING IN THE FUTURE THAT I MAY HAVE AGAINST [BSA]
THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO INJURIES
(INCLUDING A SUBSEQUENT OR RESULTING DEATH) THAT I HAVE
SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH
BSA. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS THAT I
AM RELEASING, WAIVING, AND GIVING UP ARE CLAIMS BASED ON
NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS. BY
ELECTING TO ENROLL AND PARTICIPATE IN THE PROGRAM, I FULLY
UNDERSTAND AND AGREE THAT ANY BENEFITS PAYABLE UNDER THE
PROGRAM SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ME.
CONTESTS CONCERNING MY BENEFITS WILL BE RESOLVED THROUGH
THE PROGRAM’S DISPUTE RESOLUTION PROCEDURES.
The document also included a paragraph providing:
ACKNOWLEDGEMENTS: I acknowledge that I have carefully read this
Acceptance and Waiver. I further acknowledge that I understand and accept the
terms of this Acceptance and Waiver and agree to be bound by the terms and
conditions of the Program. No one has forced me to sign this Waiver. No
representations have been made to induce me to sign this Waiver other than
those consistent with the terms of this Program.
BSA’s injury benefit program did not provide “subscriber-level” benefits. But,
under the program, for a period of two years, BSA paid Gunn’s medical expenses,
including those for occupational and physical therapy, injections and other medications
for pain, neck fusion surgery, and an additional surgery on her brachial plexus.
Pursuant to the program, BSA also paid Gunn wage replacement benefits biweekly for a
total of 110 weeks. At the time of her deposition, however, she stated she was “pretty
3
much in bed 80 percent of the time.” In 2008, Gunn was also informed she “could no
longer work for BSA due to [her] conditions.”
Gunn subsequently sued BSA, asserting causes of action for negligence and
gross negligence. BSA moved for summary judgment, asserting theories of waiver,
ratification and election of remedies and an absence of duty. The trial court granted the
motion without specifying the ground it accepted.
Analysis
Through one issue, Gunn argues BSA failed to satisfy its evidentiary burden to
be entitled to summary judgment. BSA asserts the summary judgment evidence
conclusively establishes its affirmative defense of waiver.
Standard of Review and Applicable Law
We conduct a de novo review of the trial court’s decision to grant a traditional
motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). We take as true all evidence favorable to the nonmovant, and indulge
every reasonable inference and resolve any doubts in the nonmovant's favor. Id. To
sustain the granting of a traditional summary judgment motion, we must find that the
movant has met its burden of establishing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 425 (Tex. 1997).
4
Application
The parties’ arguments on appeal focus on the requirements of Labor Code §
406.033(f) and (g). There is no dispute Gunn signed BSA’s document containing the
post-injury waiver. Section 406.033(f) provides that a cause of action may not be
waived by an employee after the employee’s injury unless:
(1) The employee voluntarily enters into the waiver with knowledge of the
waiver’s effect;
(2) The waiver is entered into not earlier than the 10th business day after the
date of the initial report of injury;
(3) The employee, before signing the waiver, has received a medical
evaluation from a non-emergency care doctor; and
(4) The waiver is in a writing under which the true intent of the parties is
specifically stated in the document.
Gunn contends the summary judgment evidence leaves fact issues as to
subparagraphs (1), (2) and (3) of § 406.033(f). She also argues the waiver fails to
comply with the requirement of § 406.033(g) that a waiver be conspicuous.
Knowledge of Waiver’s Effect
Gunn first argues the summary judgment evidence does not conclusively
establish she voluntarily signed the waiver with knowledge of its effect, as required by §
406.033(f)(1).
The Tyler Court of Appeals addressed § 406.033(f)(1) in Lopez v. Garbage Man,
Inc., No. 12-08-00384-CV, 2011 Tex.App. LEXIS 2342 (Tex.App.—Tyler March 31,
2011, no pet.) (released for publication). Specifically addressing the “knowledge of its
effect” requirement of § 406.033(f)(1), the court applied the presumption that one “who
5
signs a contract must be held to have known what words were used in the contract and
to have known their meaning, and he must be held to have known and fully
comprehended the legal effect of the contract.” Id. at *21. Thus, absent evidence of
“trick or artifice,” the signer is presumed as a matter of law to have read and understood
the contract. Id. at *22 (citing Tamez v. SW Motor Transp. Inc., 155 S.W.3d 564, 570
(Tex.App.—San Antonio, no pet.)); see Hernandez v. Lasko Prods., No. 3:11-CV-1967-
M, 2012 U.S. Dist. LEXIS 144338 (N.D. Tex. Oct. 5, 2012) (applying Lopez).2 We will
apply Lopez’s analysis in this case.3
Gunn points to her testimony she did not remember signing the waiver. She also
testified to documents she signed at Veggeberg’s office prior to his examination of her
on February 16. After review of the entire summary judgment record, we conclude
there is not a genuine issue that Gunn signed the waiver on February 17, with Lewis as
the witness. Gunn testified to her signature on the document containing the waiver.
That, at the time of her deposition, she did not remember signing the document does
not provide evidence she lacked knowledge of the waiver’s effect when she signed it.
Nor can we agree that Lewis’s deposition testimony she did not explain the waiver to
Gunn raises a fact issue as to Gunn’s knowledge of its effect.
The federal district court in Blackshire v. Tyson Foods, Inc., 2010 U.S. Dist.
LEXIS 84237 at *22, found the summary judgment evidence there raised a fact issue
2
Both Lopez, 2011 Tex.App. LEXIS 2342, at *2, and Hernandez, 2012 U.S. Dist.
LEXIS 144338, at *8, involve employees who primarily spoke Spanish. All of the
evidence here reflects Gunn is an English speaker.
3
But see Blackshire v. Tyson Foods, Inc., No. 2:09-CV-329-TJW, 2010 U.S. Dist.
LEXIS 84237 (E.D. Tex. Aug. 17, 2010) (noting no Texas court then had addressed the
scope of the language of § 406.033(f), and finding the statute supersedes the common
law presumption).
6
regarding whether the employee, who admittedly signed a waiver, voluntarily did so with
knowledge of its effect. The record in Blackshire included evidence not present here,
including evidence the employee did not have the opportunity to read the document in
its entirety before signing it, evidence he told the employer he did not understand the
waiver, and evidence raising questions concerning the voluntariness of his signing.
Based on our review of the summary judgment record, we find no genuine issue
of material fact is raised with regard to compliance with § 406.033(f)(1).
Tenth Business Day
Gunn next argues BSA did not conclusively show the waiver was entered into at
least ten business days from the date of the initial report of injury, as required by §
406.033(f)(2). She sees an ambiguity in the summary judgment evidence regarding the
initial report of her injury. As noted, the summary judgment evidence shows Gunn
informed her supervisor of her injury and completed a written report on February 4, but
the injury was not, as Gunn’s brief describes it, “reported to the office which handles the
claim” until the next Monday, February 6. Gunn signed the waiver on February 17.
Applying the plain language of § 406.033(f)(2),4 we agree with BSA that the
undisputed evidence Gunn made both an oral and written report of her injury on
February 4, a Saturday, and signed the waiver on February 17, establishes as a matter
of law the waiver was entered into not earlier than the tenth business day after the date
of the initial report of injury.
4
See State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (construction of statute
begins with “plain and common meaning of the statute’s words” (quoting Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)).
7
Medical Evaluation
As noted, in her deposition testimony Gunn made reference to documents she
signed before she was seen by Veggeberg, a nonemergency care physician. She
argues her testimony raises an issue of fact concerning compliance with the
requirement of § 406.033(f)(3) that “the employee, before signing the waiver, has
received a medical evaluation from a nonemergency care doctor.” Tex. Labor Code
Ann. § 406.033(f)(3) (West 2011).
It is undisputed Gunn saw Veggeberg on February 16. Taking as true all
evidence favorable to Gunn, and indulging every reasonable inference in her favor, we
see in the record no dispute that Gunn signed the waiver document on February 17.
Gunn made clear in her testimony that she was not saying the waiver was among the
documents she signed at Veggeberg’s office, and we see no reasonable inference from
her testimony that the waiver was signed at that time. We find there is no genuine issue
concerning the waiver’s compliance with § 406.033(f)(3).
Conspicuousness
Section 406.033(g) provides, “[t]he waiver provisions required under
Subsection(f) must be conspicuous and appear on the face of the agreement. To be
conspicuous, the waiver provisions must appear in a type larger than the type contained
in the body of the agreement or in contrasting colors.” Tex. Labor Code Ann. §
406.033(g) (West 2011).
The document Gunn signed on February 17, by which she enrolled in BSA’s
“occupational injury benefit program” and waived her causes of action, consists of six
8
paragraphs, all on one page. The paragraphs entitled “Waiver” and Acknowledgements”
are the last two of the six paragraphs. After the sixth paragraph is a signature line for
the employee and a witness. Gunn’s signature and that of Lewis appear on the copy in
the record. The “Waiver” paragraph is distinguished from the other five paragraphs by
appearing in all capital letters. It is not in a contrasting color.
Whether a provision meets a conspicuousness requirement is a question of law,
determined in this case by the § 406.033(g) definition. See Cate v. Dover Corp., 790
S.W.2d 559, 560 (Tex. 1990) (applying, as question of law, Business & Commerce
Code definition to disclaimer of warranty). Gunn’s argument is that the waiver paragraph
does not “appear in a type larger than the type contained in the body of the agreement”
because the “font size” is the same throughout the document. We see no error in the
trial court’s implicit conclusion that the waiver paragraph, appearing in all capital letters,
appears in a type larger than that of the rest of the agreement. Other cases have found
all capital letters to be conspicuous in comparable contexts. See e.g. Amtech Elevator
Servs. Co. v. CSFB 1998-PI Buffalo Speedway Office Ltd. P’ship, 248 S.W.3d 373, 377-
78 (Tex.App.—Houston [1st Dist.] 2007, no pet.) (finding capitalized heading with
following language in all capital letters attracts the attention of a reasonable person and
is thus conspicuous); Lopez, 2011 Tex.App. LEXIS 2342, at *40 (finding reasonable
person ought to have noticed the section because the entirety of the first paragraph was
written in all capital letters).
Express Negligence Doctrine
Gunn’s argument under the heading of conspicuousness also contains a
contention BSA’s waiver does not comply with the express negligence doctrine. She
9
argues BSA’s waiver does not expressly state its intent that the signer waives claims
arising from BSA’s own negligence. Under the doctrine of express negligence, “the
intent of the parties must be specifically stated in the four corners of the contract.”
Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190,192 (Tex. 2004) (quoting Ethyl
Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707 (Tex. 1987)). The rule requires some
express language that would indicate an intention to waive claims of a party's own
negligence. Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 815-16
(Tex. 1994); Lehmann v. Har-Don Corp., 76 S.W.3d 555, 562 n.3 (Tex.App.—Houston
[14th Dist.] 2002, no pet.).
Citing Reyes, 134 S.W.3d at 192, Gunn asserts that a lay person reading BSA’s
waiver would not be put on notice that the person signing the document is giving up
rights relating to BSA’s “own” negligence. BSA responds that Reyes and the express
negligence doctrine do not apply to post-injury waivers under the current § 406.033, and
further argues the doctrine applies only to indemnification against future acts of
negligence, not past acts.5
Assuming, without deciding, that the express negligence doctrine, per se,6 has
application here, we find it satisfied. In addition to the language of the “waiver” and
“acknowledgement” paragraphs we have cited from BSA’s document, its second
paragraph begins with language stating, “I want to apply for Benefits offered to me
under the no-fault BSA Occupational Injury Benefit Program (hereinafter “the Program”).
For the latter proposition, BSA relies on Green Int’l, Inc. v. Solis, 951 S.W.2d
5
384, 387 (Tex. 1997), and Transcontinental Gas Pipeline Corp. v. Texaco, Inc., 35
S.W.3d 658, 669 (Tex.App.—Houston [1st Dist.] 2000, pet. denied).
6
Neither party addresses the language of § 406.033(f)(4) in this context.
10
To qualify, I understand I must accept the rules and conditions of the Program and
waive my right to sue [BSA and other named affiliated organizations] and their agents,
affiliates, and employees for damages of any nature I have suffered.” This passage,
coupled with the other language in the document, clearly reveals an intent to release
BSA from its own negligence or gross negligence, if any. The document’s language is
similar to language courts have found to satisfy the express negligence requirement.
See Lawrence v. CDB Servs., 44 S.W.3d 544, 546, 553-54 (Tex. 2001); Lopez, 2011
Tex.App. LEXIS 2342, at *38-42.
Conclusion
Finding the trial court’s judgment supportable under BSA’s affirmative defense of
waiver, we need not address Gunn’s challenge to other grounds urged by BSA. We
resolve Gunn’s sole issue against her and affirm the judgment of the trial court.
James T. Campbell
Justice
11
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371 N.W.2d 317 (1985)
220 Neb. 666
STATE of Nebraska, Appellee,
v.
Michael J. KNIGHT, Appellant.
No. 85-107.
Supreme Court of Nebraska.
August 2, 1985.
*318 Maurice A. Green of Burger, Bennett & Green, P.C., McCook, for appellant.
Robert M. Spire, Attorney General, and Terry R. Schaaf, Lincoln, for appellee.
KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
PER CURIAM.
Pursuant to a plea bargain, defendant pled no contest to the crimes of intentionally causing bodily injury with a dangerous instrument to his wife (a second degree assault in violation of Neb.Rev.Stat. § 28-309 (Cum.Supp.1984) and a Class IV felony with a possible penalty of zero to 5 years in the penal complex) and using a firearm in commission of a felony (a Class III felony with a penalty of 1 to 20 years, consecutive to the underlying felony). A charge of attempted murder was dismissed.
Defendant was sentenced to 18 months to 3 years on the Class IV felony and to 2 to 5 years on the Class III felony, to be served consecutively to the Class IV felony sentence. The sentencing court did not give defendant any credit for 151 days spent in the county jail while awaiting sentence.
Defendant appeals, alleging that the sentences are excessive and that the court erred in failing to give him credit for time served.
Insofar as defendant contends his sentences were excessive, his appeal is without merit. During a fight with his wife, defendant fired a shot at his wife at close range, and the gun jammed before he fired another. The sentences were not excessive.
*319 Defendant's other point on appeal has merit. As stated above, the trial court sentenced defendant to 18 months to 3 years in the penal complex, with no credit for time served. At the time of the sentencing, defendant had been in jail 151 days, or approximately 5 months. We have held that allowing credit for jail time is discretionary with the sentencing court. State v. Tweedy, 196 Neb. 246, 242 N.W.2d 626 (1976).
We adhere to that general rule, but now hold that the court's discretion in withholding credit for jail time cannot be used to impose sentences in violation of Neb.Rev.Stat. § 83-1, 105(1) (Reissue 1981). That statute requires that in imposing an indeterminate sentence "the minimum limit fixed by the court shall not be... more than one-third of the maximum term...." The maximum term for a Class IV felony is 5 years. One-third of that period is 20 months. Defendant was sentenced to 18 months to 3 years. When the approximately 5-month period that defendant was in jail is added to the 18-month sentence, defendant is serving a minimum of 23 monthsan amount in excess of the statutory minimum.
The cause is remanded to the sentencing court for the imposition of a proper sentence. The trial court is directed to impose a sentence containing a minimum sentence, including time served while awaiting sentence, not greater than one-third of the possible maximum.
REMANDED.
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863 F.2d 883
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Joel D. DREER, Petitioner-Appellant,v.Edwin MEESE, III, Attorney General; Warden, of F.C.I.,Lexington, Kentucky, Respondents-Appellees.
No. 88-5522.
United States Court of Appeals, Sixth Circuit.
Dec. 2, 1988.
Before DAVID A. NELSON and BOGGS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Petitioner filed this habeas corpus action under 28 U.S.C. Sec. 2241 challenging a pre-sentence credit determination of the Bureau of Prisons. The magistrate to whom the matter was referred recommended the petition be dismissed. The district court adopted the recommendation, over petitioner's objections, and this appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.
3
Petitioner contends that certain pre-sentence jail time, previously credited against one offense, should also be credited against a second offense for which he has now been given a consecutive sentence.
4
Upon consideration, we find the district court correctly dismissed the petition on the authority of Shelvy v. Whitfield, 718 F.2d 441 (D.C.Cir.1983). Petitioner was not entitled to further pre-sentence credit once he began serving an actual federal sentence of incarceration.
5
In his brief before us, petitioner also makes a double jeopardy claim regarding the alteration of his second sentence from a concurrent sentence to a consecutive one. Petitioner specifically disclaimed this argument in the district court, and therefore cannot raise it on this appeal. Though the claim may have some validity, see United States v. Naas, 755 F.2d 1133, 1136 (5th Cir.1985), it must be presented first to the district court, and petitioner retains the option to do so.
6
The district court's judgment is therefore affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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684 F.Supp. 1363 (1988)
Latanya HOLLY
v.
HOUSING AUTHORITY OF NEW ORLEANS.
Civ. A. No. 87-5593.
United States District Court, E.D. Louisiana.
May 4, 1988.
*1364 New Orleans Legal Assistance Corp., Stephen H. Burrington, New Orleans, La., for plaintiff.
Debra Hucks McCathern, New Orleans, La., for defendant.
ORDER AND REASONS
FELDMAN, District Judge.
In May of 1984, the plaintiff, LaTanya Holly, rented an apartment at 512 Austerlitz Street in New Orleans. The owner of the rental property, Clarence Bell, entered into a one-year lease with Holly and, also, a housing assistance payments contract with the Housing Authority of New Orleans ("HANO"). The assistance contract was authorized under Section 8 of the United States Housing Act, which provides for direct subvention payments to private lessors on behalf of qualified low-income lessees.[1] 42 U.S.C. § 1437f. The Department of Housing and Urban Development ("HUD") administers and provides funding for this rent assistance program through annual contribution contracts with HANO. At the end of the first lease period, both Holly and Bell wanted to extend the lease, and, accordingly, Bell signed another assistance contract with HANO on June 10, 1985.
HUD regulations provide that HANO and other participating local housing authorities must undertake annual investigations to determine the family composition and income of participants in the program. 24 C.F.R. § 882.212(a) (1987).[2] Thus, on May 17, 1985, HANO conducted a recertification interview with Holly. At that interview, Holly supplied information for HANO to complete a "Certification/Recertification of Tenant Eligibility." That form called for information regarding Holly's *1365 household composition.[3] Holly listed herself and her daughter, Trenise, as comprising the household.
However, on February 13, 1985, prior to filling out the "Certification/Recertification" form, Holly had married Howard Lodge. According to Holly, Lodge was arrested two days after their marriage. After spending several days in prison, Lodge visited Holly's home sporadically, and on March 1, 1985, Holly told Lodge to leave her home permanently; shortly thereafter, they were divorced. Holly claims that she never received any income from Lodge. HANO offers nothing beyond argument and speculation to dispute that claim.
At a November 29, 1986 recertification interview, a HANO employee informed Holly for the first time that the agency required notice of any change in her marital status, and that she had not provided that information. In response, on December 4, 1986, Holly provided HANO with an affidavit, which stated: "I am living separate and apart from my husband, Howard Lodge. We separated in March, 1985. I do not know his present address." Nonetheless, on December 6, HANO sent Holly a "Notice of Ineligibility," informing her that she was no longer eligible for housing assistance because of her failure to report her household composition accurately by not mentioning her marriage to Lodge. HANO informed her that the agency's assistance contract with Clarence Bell, Holly's landlord, was "null and void." Holly appealed the administrative decision and, after another hearing, HANO affirmed its decision on June 25, 1987.
Holly asserts jurisdiction under the provisions of 28 U.S.C. § 1331 and 1343(a)(3)-(4). She initiated this action only after appealing HANO's decision to discontinue her housing assistance payments. Accordingly, on the facts before this Court, Holly has exhausted her administrative remedies and her claims are properly before the Court. HANO does not contest jurisdiction.
Holly bases her action on HANO's alleged violation of the Civil Rights Act, 42 U.S.C. § 1983, by improperly denying her continued Section 8 payments. She asks for a judgment declaring HANO's termination of housing assistance payments to be improper, an injunction compelling HANO to resume its housing assistance payments, compensatory damages, and attorney's fees, pursuant to 42 U.S.C. § 1988.[4]
Holly asserts four separate grounds for recovery. First, she contends that HANO violated her rights under Section 8 of the United States Housing Act, 42 U.S.C. § 1437f and its implementing regulations. Second, she asserts that HANO's actions constitute a violation of the Due Process Clause of the Fourteenth Amendment. Third, Holly claims that HANO has breached its obligations to her in her capacity as a third-party beneficiary of the annual contributions contract between HANO and HUD. Finally, Holly contends that HANO has breached its obligations to her as a third-party beneficiary of the housing payments assistance contract between HANO and Clarence Bell, Jr., her landlord.
She now moves for summary judgment. Because this Court agrees with Holly's first claim, and because her claims do not appear to differ in the relief available, it is not necessary to address her other three contentions.[5] A partial summary judgment should be granted in her favor.
*1366 Holly's Claim Under Section 8
The Court's initial inquiry is whether or not HANO has violated the provisions of Section 8 and its implementing regulations. Under the analysis set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed. 2d 26 (1975), the intended beneficiaries of a federal act may, in some circumstances, maintain private actions to redress violations of statute-created private rights. The Fifth Circuit interpreted the Cort test in Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 758 (5th Cir.1987):
(1) Is the plaintiff one of the class for whose special benefit the statute was enacted?
(2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?
(3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy?
(4) Is the cause of action one traditionally related to state law, in an area basically the concern of the States, so that it will be inappropriate to infer a cause of action based solely on federal law?
Id. at 758 (citing Cort, supra, 422 U.S. at 78, 95 S.Ct. at 2088). The focus of the test is on congressional intent. Hill v. Group Three Housing Development Corp., 799 F.2d 385, 394 (8th Cir.1986). Two Circuits have held, under the Cort analysis, that Congress did not imply a private right of action under Section 8. Price v. Pierce, 823 F.2d 1114, 1122 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1222, 99 L.Ed.2d 422 (1988); Hill, supra, 799 F.2d at 394-95 (quoting Phelps v. Housing Authority of Woodruff, 742 F.2d 816, 821 (4th Cir.1984)).[6] But these decisions no longer suggest the answer to this question. They stop short of the answer.
Recently, in Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the Supreme Court held that the Civil Rights Act, 42 U.S.C. § 1983 (1982),[7] does provide housing assistance participants with a private right of action to redress violations of federal housing laws by state officials.[8] The Court reasoned that Section 1983 applies to violations of the housing statute because the statute did create enforceable rights within the meaning of Section 1983, and Congress had not foreclosed the enforcement of those rights by way of the Section 1983 mechanism.[9] 107 S.Ct. at *1367 770. So, while Congress did not imply a private right of action in Section 8 itself, Section 1983, said the Court, provides Holly with a mechanism to redress violations of the Act. In this case, the functional result is the same. See Price, supra, at 1122. Accordingly, this Court must decide whether HANO, a state agency, has violated the provisions of Section 8 of the Housing Act.[10]
Did HANO Violate Section 8 And The Regulations?
Looking to the substance of Holly's statutory claims, the Court concludes that HANO did improperly terminate Holly's benefits in violation of Section 8 and its implementing regulations. Under the regulations, an implementing state agency, like HANO, may refuse to enter into a contract with a participant under the following circumstances:
(3) If the applicant or participant has committed any fraud in connection with any federal housing assistance program[; or]
(4) If the applicant or participant has violated any Family obligation under the Section 8 Existing Housing Program as stated in § 882.118.
24 C.F.R. § 882.210(b)(3)-(4) (1987).[11] 24 C.F.R. § 882.118, in turn, provides that, among the Section 8 Family obligations is the duty to:
(1) Supply such certification, release, information or documentation as [HANO] or HUD determine to be necessary, including ... submissions required for an annual or interim reexamination of Family income and composition.
24 C.F.R. § 882.118(a)(1) (1987).
Under the undisputed facts, Holly has not violated any of the requirements of 24 C.F.R. § 882.210(b)(3)-(4). HANO claims that Holly violated her obligation to inform the agency of changes in her family composition by failing to report her marriage to Howard Lodge. But nothing in Section 8 of the Act or in the regulations supports the notion that Holly had a duty to inform HANO of her short-lived marriage.[12] The *1368 certification form filled out by HANO officials when Holly attended the interview gives no indication that Holly was ever asked whether of not she had married or that she was even informed that marriage would have an impact upon her eligibility. Marriage is simply not stated to be a component of the family composition referred to in the regulations. More importantly, if Lodge was ever a member of Holly's household, he certainly was not at the time of Holly's recertification interview, on May 17, 1985. In short, under Section 8 and its implementing regulations, marriage, by itself, does not make a spouse a member of the household, and there is no evidence in this case that Lodge otherwise qualified as a member of Holly's household.
Likewise, Holly has not violated the HUD regulations by committing fraud in connection with her participation in the Section 8 program. See C.F.R. § 882.210(b)(3). Although the statute does not define the term, the general elements of fraud are:
(1) a false representation, (2) in reference to a material fact, (3) made with knowledge of its falsity, (4) and with intent to deceive, (5) with action taken in reliance upon the representation.
Nader v. Allegheny Airlines, 626 F.2d 1031, 1036 (D.C.Cir.1980). Under the general test for fraud, Holly has not committed any act which could be said to amount to fraud on the facts before the Court. She made no false representation on this record.
Accordingly, the Court holds that under the Supreme Court's decision in Wright, Section 1983 provides Holly with a right of action to redress violations of the Housing Act by state officials. The Court finds on the facts before it that HANO wrongfully terminated Holly's benefits in violation of the Section 8 of Housing Act and its implementing regulations, found in 24 C.F.R. § 882.210(b)(3)(4). There are no issues of material fact in dispute.[13] Partial summary judgment is therefore proper.[14]
Accordingly, for the foregoing reasons, plaintiff's motion for summary judgment is GRANTED. Issues of compensatory damages and attorney's fees remain.
NOTES
[1] Section 8 provides, in part:
(a) For the purpose of aiding lower-income families in obtaining a decent place to live and of promoting economically mixed housing, assistance payments may be made with respect to existing housing in accordance with the provisions of this section.
(b)(1) The Secretary [of the United States Department of Housing and Urban Development] is authorized to enter into annual contributions contracts with public housing agencies pursuant to which such agencies may enter into contracts to make assistance payments to owners of existing dwelling units in accordance with this section....
42 U.S.C. § 1437f(a)-(b)(1) (1982 & 1987 Supp.)
[2] 24 C.F.R. § 882.212(a) provides:
(a) Regular reexaminations. The PHA [HANO] must reexamine the income and composition of all Families at least once every 12 months. After consultation with the Family and upon verification of the information, the PHA [HANO] shall make appropriate adjustments in the Total Tenant Payment....
24 C.F.R. § 882.212(a) (1987).
[3] The HANO form referred to "household members". The HUD regulations, on the hand, refers to "family composition". Neither party makes an issue of this distinction in terms. The Court assumes, therefore, that the difference in terms used does not constitute a substantive distinction bearing upon Holly's obligations of disclosure. "Family composition" is not defined in the regulations.
[4] 42 U.S.C. § 1988 provides, in part:
In any action or proceeding to enforce a provision of section[] ... 1983 ... of this title ..., the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.
42 U.S.C. § 1988 (1982).
[5] The Court notes, however, that other courts have split over the issue of whether participating tenants, like Holly, can obtain relief as third-party beneficiaries to annual contributions contracts. See Samuels v. District of Columbia, 770 F.2d 184, 201 n. 14 (D.C.Cir.1985), and the cases cited therein. The Samuels court, after holding that Section 1983 provides tenants with a cause of action to redress violations of the Housing Act, also declined to go further and address the availability of third-party contractual relief.
[6] While the Eighth Circuit, in Hill, cited Phelps for the proposition that Section 8 does not provide an implied right of action, that does not appear to be the holding in Phelps. In Phelps, the Fourth Circuit held that Section 1983 could not be used to enforce statutory rights under Section 8. The Phelps holding is clearly at odds with recent Supreme Court case law discussed infra.
[7] Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983 (1982).
[8] The Court notes that the provisions upon which Holly bases her claim and upon which HANO based its determination of her payments are contained in HUD's federal regulations. HANO, however, does not contend that the fact that this litigation concerns primarily regulatory provisions, and not the statute itself, demands any alteration of the Court's analysis.
In fact, Wright involved a claim that a local public housing agency had violated both the Brooke Amendment to the Housing Act and its implementing regulations. In entertaining the petitioner's regulatory claims, the Wright Court cited Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), in which the Supreme Court stated:
It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law."
Brown, 441 U.S. at 295, 99 S.Ct. at 1714 (footnote omitted).
[9] Arguably, since the Court was dealing with utilities costs as a component of rent, Wright could be narrowly construed to cases arising under the Brooke Amendment to Section 3 of the Housing Act, 42 U.S.C. § 1437a (1982). Such a distinction between Wright and the present case is not supported by the broad language of the Supreme Court's opinion. The Wright majority stated broadly:
In sum, we conclude that nothing in the Housing Act or the Brooke Amendment evidences that Congress intended to preclude petitioners' § 1983 claim against respondent. 107 S.Ct. at 774. Moreover, in Price v. Pierce, 823 F.2d 1114, 1122 (7th Cir.1987), a Section 8 case in which the court found no statutory violation, the Seventh Circuit nevertheless ignored such a confined interpretation of Wright, concluding in dicta that Wright's Section 1983 analysis applied to actions against "state housing officials" to redress the deprivation of rights under "federal housing law." The Fifth Circuit has not yet spoken to the issue.
[10] This Court notes the apparent novelty of the Wright decision. In holding that Section 1983 provides low-income tenants with a cause of action against state agents for the violation of federally-secured rights, the majority relied upon Section 1983 precedent, and inexplicably did not discuss the traditional test, enunciated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for determining when Congress has provided a private right of action to enforce a statute. Under the Cort analysis, the court must undertake a rigid four-part analysis, which focuses on whether Congress has displayed an intent, on the face of the statute or in its legislative history, to provide a private right of action. Wright, 107 S.Ct. at 775-76 (O'Connor, J., dissenting). No matter how appealing the dissent's analysis seems, the Wright decision is binding precedent on this Court in view of the sweep of the language used.
[11] Holly points to 24 C.F.R. § 882.210(b)(3)-(4) as the termination provisions applicable in this case. Those subsections refer to HANO's authority to deny the admission of a new applicant to the Section 8 program, to deny the issuance of a certificate to a participant who wishes to change residences, and to decline to enter into a payments contract or approve a lease as requested by a participant. 24 C.F.R. § 882.210(d)(1)-(2), which deal expressly with the termination of payments under an existing contract seem to be more applicable to the facts of this case, but, the two sets of provisions are identical in wording and effect.
[12] HANO points to 24 C.F.R. § 813.106 in support of its contention that Lodge should have been listed by Holly as a member of her household. Section 813.106 provides that:
(a) Annual income is the anticipated total income from all sources received by the Family head and spouse....
24 C.F.R. § 813.106(a) (1987) (emphasis added). This provision cannot reasonably be construed as support for HANO's position. This is particularly true in this case, in which Holly was only married to Lodge for a brief period of time and his residence in her house was even shorter in duration.
HANO also cites Bloom v. Niagra Falls Housing Authority, 430 F.Supp. 1183 (W.D.N.Y.1977), as support for its view that the fact of the Holly-Lodge marriage ipso facto made Lodge a member of Holly's household for Section 8 purposes. Bloom provides no support for HANO's position. The issue before the Bloom court was whether spouses could be considered deductions in establishing family income. That court did not attempt to define household composition or membership for Section 8 purposes.
[13] Aside from HANO's failure to show that either Section 8 or HUD regulations required that Holly disclose her marriage, the Court stresses that HANO has also produced no evidence to show that any HANO representative informed Holly personally, prior to her disqualification, that such information was required as part of the household composition equation.
[14] Because the Court does not address Holly's constitutional and contractual claims, any relief that issues in this case shall only refer to to the statutory infirmity of HANO's actions.
| {
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32 F.Supp.2d 151 (1998)
UNITED STATES of America, Plaintiff,
v.
Joseph R. GREGG, Ruby C. McDaniel, Luis Menchaca, Francis S. Pagnanelli, William Charles Raiser, Michael Henry, Rose Kidd, Arnold Matheson, Katharine O'Keefe, Eva Alvarado, Joseph F. O'Hara, Joseph Roach, Robert Rudnick, James Soderna, James Sweatt, Elizabeth Wagi, Byron Adams, Kevin Blake, Amy Boissonneault, Baldo Dino, Stephen C. Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis Green, George Lynch, Raymond Micco, Alexis Mulrenan, Ralph Traphagen, James Trott, Kimiko Trott, Defendants.
No. CIV. A. 97-2020 (JCL).
United States District Court, D. New Jersey.
December 11, 1998.
*152 Shelley Jackson, Trial Attorney, U.S. Dept. of Justice, Civil Rights Division, Special Litigation Section, Washington, DC, Colette R. Buchanan, Assistant U.S. Attorney, U.S. Department of Justice, United States Attorney, District of New Jersey, Newark, NJ, for Plaintiff.
Edward J. Gilhooly, Morristown, NJ, Richard Traynor, Morristown, NJ, Michael Pelletier, Chester, NJ, Josephine A. Farrell-Betz, Mendham, NJ, William Broderick, Pequannock, NJ, Peter Burke, Summit, NJ, William C. Cagney, Lane & Mittendorf, LLP, Iselin, NJ, Donald D. Campbell, Berkeley Heights, NJ, Michael Patrick Carroll, Morristown, NJ, Ralph Coti, Herriot, Coti & Sugrue, New York City, Michael O. Cummings, Morgan & Finnegan, LLP, New York City, Terence J. Gallagher, Morristown, NJ, Estelle Flynn Lord, Westfield, NJ, David Oakley, Anderl & Oakley, PC, Princeton, NJ, Juan J. Ryan, New Providence, NJ, Thomas E. Shields, III, Wayne, NJ, Gregory J. Sullivan, Hartsough & Kenny, Hamilton, NJ, Stephen C. Elliot, Newark, DE, Sheryl Fitzpatrick, Brighton, MA, for Defendants.
MEMORANDUM AND ORDER ENTERING FINAL JUDGMENT
LIFLAND, District Judge.
Presently before the Court is the motion of the United States of America (hereinafter "United States") for summary judgment pursuant to Fed.R.Civ.P. 56(a) on all claims alleged in its Complaint. For the reasons set forth herein, the motion of the United States will be granted, and appropriate relief will be awarded.
BACKGROUND
On April 18, 1997, the United States, through the Attorney General, filed this action pursuant to the Freedom of Access to Clinic Entrances Act (hereinafter "FACE" or "the Act"), 18 U.S.C. § 248 (1994). The Complaint alleges that Metropolitan Medical *153 Associates (hereinafter "MMA"), its employees and persons seeking reproductive services at MMA, have been and may continue to be injured by conduct constituting violations of FACE. The Complaint was filed to ensure that (a) the named defendants are enjoined from committing future violations of FACE and (b) that statutory damages, as provided for under FACE, are imposed on defendants for violations of the Act.
On December 22, 1997, this Court issued a preliminary injunction prohibiting the named defendants from physically interfering with or obstructing access to the MMA building and facilities, physically intimidating or attempting to intimidate anyone seeking access to the MMA building and facilities, and entering on or being located on or within the premises of the MMA building and facilities, unless seeking reproductive health services. The Court denied the United States' request for a 60-foot buffer zone. The Court issued its Findings of Facts and Conclusions of Law after the preliminary injunction hearing. The following facts are undisputed unless otherwise noted.[1]
MMA is a reproductive health care clinic that provides ambulatory care abortions and related services. MMA is located in a two-story building at 40 Engle Street, Englewood, New Jersey. MMA has a street-level front entrance, directly adjacent to a public sidewalk. MMA patients and their visitors generally park on the street or in nearby parking lots, and walk down the Engle Street sidewalk to the clinic. MMA also has a small parking lot, which is used by staff only and is accessed by an alley to the side of the clinic building.
Persons entering MMA from the street must proceed past a first-floor security station and up a stairway to the second floor, through double glass doors, where the waiting room and reception area are located. Patients must register at the second floor reception desk and remain in the waiting room until called to the office area for an examination, laboratory tests and, in some cases, counseling. After counseling, patients who undergo medical procedures walk back down the stairway to the medical area on the first floor. The stairway between the first and second floors is the only one routinely used by patients or staff. The first floor street entrance is the only regularly used method for patients to enter and exit MMA. An emergency fire escape is located at the rear of the MMA building, near the staff parking lot.
Anti-abortion protests and demonstrations at MMA are restricted pursuant to orders issued in 1974 by the Superior Court of New Jersey. These orders require, inter alia, that protestors remain on the eastern side of Engle Street, across the street from the clinic. The distance from the front door of MMA across Engle Street to the eastern side of the street is approximately 60 feet.
Three blockades occurred at MMA between August 1996 and March 1997. A fourth blockade of MMA was attempted in April 1997.
August 7, 1996 Blockade of MMA
On August 7, 1996, five of the named defendants Joseph Gregg, Ruby McDaniel, Luis Menchaca, Franco Pagnanelli and William Raiser blocked access to MMA by placing themselves inside the clinic building on the second floor landing in front of the clinic's patient waiting room entrance and office area, completely blocking the staircase. The five defendants were seated in two groups, one group of three and one group of two individuals. They had locked themselves together with U-shaped bicycle locks. The bicycle locks were placed around each of their necks and then linked together. Defendants McDaniel and Pagnanelli were locked together in one group; the other three defendants were locked together in a second group. At the preliminary injunction hearing, Englewood Police Officers George Wathney and Steven Sabo were able to identify *154 defendants Pagnanelli and McDaniel as the individuals pictured in Government Exhibit 4B. Tr. at 1.95-1.98, 1.128, 1.110, 1.128, 1.42-1.43, 1.112, 1.117; Govt. Exhs. 4A, 4B.
Numerous police officers and fire department personnel were required to respond to the blockade of MMA. The defendants refused to leave or unlock themselves in response to police requests to do so.
It took fire department personnel considerable time to cut through one set of locks on the defendants. Ultimately, they were unable to remove all of the locks on site. Two of the defendants, still locked together, had to be carried by police officers out of the clinic and to police vehicles.
During the blockade, access to MMA's second floor patient and office areas was completely blocked. Also during the blockade, defendants McDaniel and Pagnanelli, who were locked together, were inside the clinic when the door against which they were leaning was opened from the inside. Pagnanelli and McDaniel moved into the open doorway. Police officers had to forcibly remove these two defendants from the doorway so that the door could be closed. Also during the blockade, the defendants were, at times, loud and belligerent, yelling statements that expressed their opposition to abortion.
As a result of the blockade, some MMA staff members conducted themselves as if they were angry and shaken. Some acted intimidated by defendants' actions, by expressing desires to quit working at MMA.
All five individuals were arrested and charged with trespass and other violations.
January 18, 1997 Blockade of MMA
On January 18, 1997, twelve of the named defendants Luis Menchaca, Michael Henry, Rose Kidd, Arnold Matheson, Katharine O'Keefe, Eva Alvarado, Joseph O'Hara, Joseph Roach, Robert Rudnick, James Soderna, James Sweatt and Elizabeth Wagi blocked access to MMA by sitting or lying in front of the clinic building entrance on Engle Street. These defendants blockaded MMA despite the presence of police officers in their official vehicles directly in front of the clinic. Some defendants initially tried to enter the clinic and had to be forcibly kept out of the clinic by MMA staff and police. The defendants refused to leave the clinic entranceway and had to be physically removed and carried away by police officers.
At the hearing, defendants put into evidence a videotape showing the blockade. The videotape showed individuals crossing Engle Street and sitting and/or lying in front of the clinic entrance. Defendants' Preliminary Injunction Hearing Exhibit ("Defs.Exh.") 1; Tr. at 2.155-2.156, 2.158-2.160, 2.162-2.164. The defendants were part of a crowd of demonstrators who were outside the clinic protesting against abortion, including yelling anti-abortion statements. The twelve blockaders were arrested and charged with trespass and other violations.
March 15, 1997 Blockade of MMA
On March 15, 1997, nineteen of the named defendants Menchaca, Henri, Kidd, Matheson, O'Keefe, Byron Adams, Kevin Blake, Amy Boissonneault, Baldo Dino, Stephen Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis Green, George Lynch, Raymond Micco, Alexis Mulrenan, Ralph Traphagen, James Trott and Kimiko Trott blocked access to MMA by sitting or lying in front of the clinic building entrance on Engle Street. This blockade was conducted in two separate waves. The first group of blockaders ran across Engle Street, sat or lay in front of the entranceway, refused to leave when asked by police officers and had to be physically removed by the officers.
The second wave of blockaders ran across the street just as the officers had cleared the clinic's entrance area of the first group. Like the first group, the second group sat and lay in front of the entranceway, refused to leave when asked by police and had to be physically removed.
As the officers attempted to remove the blockaders on March 15, many of them physically resisted, locking arms and legs, holding onto each other and scrambling back toward the door each time the officers pulled them away.
At times, individuals seeking access to the clinic on March 15 were unable to enter MMA until the area around the clinic entrance was cleared by police. Officers escorted *155 individuals, some of whom were angry, hysterical and crying, into the building.
The March 15 blockade caused one MMA patient concern over having to step over people to enter MMA.
One defendant, Arnold Matheson, kicked a police officer twice in the groin and attempted to "head-butt" the officer during the arrests.
The scene outside the clinic was chaotic and loud, with a crowd of anti-abortion demonstrators contributing to the chaos by yelling, including one demonstrator who yelled through a megaphone at police officers. The demonstrators carried anti-abortion signs and yelled anti-abortion slogans. The crowd of demonstrators cheered for the two waves of blockaders as they crossed the street and blocked the clinic entrance. The demonstrators also yelled at and berated police officers as they removed the blockaders.
Defendants carried out the March 15 blockade in spite of substantial law enforcement presence outside the clinic. In order to respond to defendants, Englewood police had to call for assistance from neighboring towns and municipalities. At some times during the March 15 blockade, police were forced to close Engle Street, a main thoroughfare, in order to better respond to the disturbance created by the defendants and demonstrators.
All nineteen defendants were arrested and charged with trespass and other violations. Five of the nineteen defendants had also participated in either the August 1996 or January 1997 blockades.
April 19, 1997 Attempted Blockade of MMA
On April 19, 1997, the day after this lawsuit was filed, numerous anti-abortion demonstrators attempted to blockade the clinic, including defendant Matheson. Despite police erecting police barricades and lining the street with police vehicles, these individuals ran across the street in more than one group, between and over police vehicles, in an effort to get to the entrance to MMA. Some demonstrators threw themselves under police vehicles, suffering cuts and scrapes. One demonstrator dove under a police van that was running and grabbed onto the underside, requiring officers to crawl under the vehicle to pull him out. Police apprehended and arrested the demonstrators before they could reach the clinic entrance. These individuals were charged with trespass and other violations.
STANDARD OF REVIEW
Summary judgment eliminates unfounded claims without recourse to a costly and lengthy trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, a court should grant summary judgment only "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A litigant may discharge this burden by exposing "the absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. In evaluating a summary judgment motion, a court must view all evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); 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).
Once the moving party has made a properly supported motion for summary judgment, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law determines which facts are material. Id. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring the nonmoving party such that a reasonable *156 jury could return a verdict in that party's favor. See id. at 249, 106 S.Ct. 2505.
DISCUSSION
Section 248(a)(1) of the Freedom of Access to Clinic Entrances Act provides:
(a) Prohibited Activities. Whoever
(1) by ... physical obstruction ... intentionally injures, intimidates, or interferes with or attempts to injure, intimidate, or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services ... shall be subject to the ... civil remedies provided in subsection (c) ....
18 U.S.C. § 248(a)(1).
FACE defines a physical obstruction as:
[R]endering impassable ingress to or egress from a facility that provides reproductive health services ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous.
18 U.S.C. § 248(e)(4). Entry into or invasion of the clinic, physical injury to clinic clients or staff, or the non-occurrence of scheduled procedures or abortions are not elements of an obstruction under FACE, and therefore, need not be demonstrated to establish a violation of the Act. See United States v. Roach, 947 F.Supp. 872, 876 (E.D.Pa.1996). Similarly, as long as access is made "unreasonably difficult or hazardous," it is not necessary to establish that there was absolutely no way to enter an abortion facility in order to prove a violation of the Act. United States v. Soderna, 82 F.3d 1370, 1377 (7th Cir.1996), cert. denied sub nom, Hatch v. United States, ___ U.S. ___, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996) (finding that "unreasonably difficult" access in the context of FACE includes having to surpass such obstacles as individuals "lying down across the entrance so that the entrant has to step or jump? over the blockader" and instances in which "only one entrance of several (but that the main one) is blocked"); United States v. Lindgren, 883 F.Supp. 1321, 1328 (D.N.D.1995).
For purposes of FACE, "intent" means "intending to perform the act and aware of the natural and probable consequences of it." Legislative history of FACE, S. Rep. 103-117, 103rd Cong., 1st Sess. 24 n. 39 (1993) (hereinafter "S. Rep. 103-117"). To "interfere with" means "to restrict a person's freedom of movement." 18 U.S.C. § 248(e)(2).
It is clear from the undisputed facts that the United States has met its summary judgment burden of showing there is no genuine issue of material fact as to whether defendants violated § 248(a)(1) of FACE. The United States pointed to evidence indicating that on August 7, 1996, January 18, 1997, and March 15, 1997, defendants physically obstructed ingress to and egress from MMA, with the intent to interfere with, or in an attempt to interfere with, clinic staff and patients because those persons were seeking or providing reproductive health services. See Findings of Fact and Conclusions of Law.
Physical Obstruction
As the Court has already recognized, defendants engaged in physical obstruction as defined by FACE during each of the blockades at issue in this case. The United States has established that defendants made ingress into MMA unreasonably difficult, in that persons seeking to enter MMA had to step or climb over the bodies of defendants as they blocked the entrances. These blockades constituted physical obstructions, as defined by FACE. Thus, the first element of a FACE violation has been established. Court's Findings and Conclusions at 20, ¶ 20. Defendants admit in their Opposition Brief that "On August 7, 1996, several of the defendants entered the premises and lay prone on the stairway and hallway.... On January 18, 1997, several defendants crossed the street in front of the clinic and blocked the front door of the clinic.... Again, on March 15, 1997, several of the defendants crossed the street and blocked the door." Thus, the United States has met its burden and there is no dispute as to this element.
*157 Intent to Interfere With Clinic Employees and Clients or Attempt to Do So
Defendant's intent to interfere with MMA staff and patients is evident from their conduct. "Intent" means "intending to perform the act and aware of the natural and probable consequences of it." S.Rep. No. 103-117, 103rd Cong., 1st Sess. at 24, n. 39, 1993 U.S.Code Cong & Admin. News (1993). In each of the blockades that are the subject of this lawsuit, the "natural and probable consequences" of defendants' action was that the freedom of movement of individuals seeking access to MMA would be restricted. At the hearing, the United States offered videotape and eyewitness testimony to show that the defendants, as well as numerous other individuals outside MMA on January 18 and March 15, 1997, yelled or uttered anti-abortion statements, including imploring women not to go into the clinic or not to kill their babies and carried anti-abortion signs. The United States also pointed to evidence showing that defendants refused to leave or move away from the clinic's entrance areas when repeatedly asked to do so by police officers during each of the three blockades. The Court found the requisite intent in the preliminary injunction hearing based on such evidence. The United States has met its burden for this element.
Because the MMA Provides, and its Patients Obtain, Reproductive Health Services
As stated above, defendants made statements that expressed their opposition to abortion during the blockade in August 1996. Similarly, in January and March of 1997, the record indicates that defendant's blockade took place in the midst of anti-abortion demonstrations. Based on such evidence the Court previously found that "defendant's actions on August 7, 1996, January 18, 1997, and March 15, 1997 were motivated by their desire to stop abortions from occurring." Findings and Conclusions at 21, ¶ 21. Thus, the United States has satisfied its burden for this element.
As the party responding to a motion for summary judgment, defendants bear the burden of "designat[ing] specific facts showing that there is a genuine issue for trial." Country Floors, Inc. v. Partnership Composed of Gepner & Ford, 930 F.2d 1056, 1061 (3d Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In their Opposition Brief, defendants do not dispute most of the facts that pertain to August 7, 1996, January 18, 1997, March 15, 1997, or April 19, 1997. See Opp. Br. at 9. Defendants do dispute a few of those facts and the "additional facts that the United States now brings forward" concerning the 60-foot buffer zone the United States seeks.
Defendants dispute whether patients were frightened or turned away or their access blocked to the clinic. Defendants suggest that the individuals who approached MMA's entrance when defendants blockaded the clinic were "phoney [sic] patients, used to deceive the court into granting an injunction." Opp. Br. at 12. The record contains no evidence in support of this argument. The only evidence defendants point to in support of their argument is the fact that the United States did not seek out the identity of three individuals whom the defendants purported to describe in an interrogatory. See Opp. Br. at 12-13. However, the fact that the United States has not identified certain individuals in whom defendants had an interest does not raise an issue of material fact as to obstruction.
Defendants also dispute the number of interior stairways in the MMA building. They state in their Opposition Brief that "Our recollection is that administrator Jones testified at the preliminary injunction hearing that there is no interior stairway." Opp. Br. at 11. However, the Court found in its Findings and Conclusions that "the [interior] stairway between [MMA's] first and second floors is the only one routinely used by patients and staff." See Findings and Conclusions, at 2, ¶ 3 (citing Tr. at 1.32, 1.37-1.38). Defendants do not point to specific evidence in the record indicating that there is no interior stairway.
Defendants also dispute that defendant Roach "and one or two other" defendants either intended to obstruct access to MMA or crossed the street to the entrance of the clinic. Defendants candidly admit, however, that as of the time they wrote their brief in *158 opposition to the United States' motion, they were unable to substantiate this claim with any reference to the record.[2] In fact, the record shows that defendant Roach admitted participating in the January 18, 1997 blockade of MMA. See Defendant's Responses to United States Requests for Admissions, Nos. 30-33, 36-41, 45. Because defendants have not pointed to specific evidence on this issue, and because the record supports plaintiff's conclusion, the Court finds there is no issue of material fact.
Thus, defendants have failed to meet their burden.
The Court finds that the United States is entitled to summary judgment that defendants have violated § 248(a)(1) of FACE. The rest of this case focuses on the appropriate remedies for such a violation. The United States seeks a permanent injunction broadening the relief granted in the Preliminary Injunction Order of 12/23/97 to include a 60-foot buffer zone, and seeks statutory damages.
Permanent Injunction
Defendants apparently contend that the United States is not entitled to permanent injunctive relief because defendants have not engaged in unlawful conduct since this case was filed, making the case moot.[3] In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 66, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Supreme Court described, in the context of a case brought under the Clean Water Act, the burden on a party when that party asks the court to dismiss a case as moot: "In seeking to have a case dismissed as moot ... the defendant's burden `is a heavy one'.... The defendant must demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney, 484 U.S. at 66, 108 S.Ct. 376 (citing United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)); Phillips v. Pennsylvania Higher Educ. Assistance Agency, 657 F.2d 554 (3d Cir.1981). The only evidence that defendants put forth in this regard is that they have complied with the Preliminary Injunction. Defendants assert that their compliance with the Preliminary Injunction is a sufficient basis not only to deny the United States' permanent injunctive relief, but also to dismiss the case and vacate the terms of the prior injunction. Opp. Br. at 25.
Defendants have not met their "heavy" burden. They do not dispute that prior to the initiation of this lawsuit, they blockaded MMA, and that some defendants blockaded MMA on more than one occasion within a seven-month period. See Opp. Br. at 11; Stipulation of Facts at 3-6. Similarly, defendants do not dispute that many defendants have a history of obstructive and threatening conduct at abortion clinics, including the refusal to comply with injunctions and other lawful court orders designed to protect abortion providers.[4]See Stipulated Facts at 8-12. Finally, defendants continue to assert that their conduct did not violate FACE and that they should not be subjected to any legal consequences as a result of their actions. See Opp. Br. at 14. These facts indicate that the wrongful behavior of defendants could be reasonably expected to recur, and that a permanent injunction is necessary.
Furthermore, "an enjoined party ought not to be rewarded merely for doing what the court has directed." 11A Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal *159 Practice and Procedure, § 2961 at 405 (1995); see also Walling v. Harnischfeger Corp., 242 F.2d 712, 713 (7th Cir.1957) (refusing to dissolve permanent injunction solely on the basis of defendants' compliance; finding that "[c]ompliance is just what the law expects"). "Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of the power to hear and determine the case, i.e., does not make the case moot." Phillips, 657 F.2d at 568-69. Thus, the fact that Defendants have not engaged in obstructive behavior at MMA since the preliminary injunction was granted is not enough to convince the Court that there is no longer a need for the injunction.
Defendants' refusal to acknowledge the illegality of their conduct also prevents this case from being moot. The Supreme Court held in Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944), that a case was not moot when, despite voluntary compliance, "a controversy over the legality of the [challenged conduct] still remains." See also Dow Chem. Co. v. U.S. EPA, 605 F.2d 673, 679 (3d Cir.1979) (finding case not moot because defendant had not "altered its substantive stance" regarding the legality of the challenged conduct); Donovan v. Cunningham, 716 F.2d 1455, 1461 (5th Cir.1983) (stating that argument that "voluntary cessation does not constitute mootness is particularly true in the face of [defendants'] continued insistence that their discontinued activities were legal ..."), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984). Despite this Court's findings to the contrary, defendants continue to insist that FACE does not apply to them and that FACE is unconstitutional.
Defendants have not met their burden of proving that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney, 484 U.S. at 66, 108 S.Ct. 376. In fact, the record indicates quite the contrary that at least some of the defendants are likely to engage in the wrongful behavior. This is apparent from the fact that defendants continue to insist that their discontinued activities are legal and that many defendants have a history of obstructive and threatening conduct at abortion clinics. Thus, the case is not moot and the Court will grant a permanent injunction to prevent defendants from violating FACE in the future.
Scope
This Court found in its Findings of Fact and Conclusions of Law at the Preliminary Injunction Hearing that the evidence submitted at the time of the hearing did not warrant a buffer zone. Findings of Fact and Conclusions of Law, at 31, ¶ 40. The Court stated:
"The obstructive acts in evidence in this case took place inside of, or at the main entrance to, the MMA building. Accordingly, only the acts that are violative of the Access Act, and for which the evidence supports the imposition of a preliminary injunction, will be enjoined. The injunction will be limited to such obstructive acts."
Id.
The United States argues that a buffer zone is appropriate in light of many defendants' demonstrated intent to interfere repeatedly with the provision of abortions at MMA. The United States recounts facts where some defendants blockaded MMA despite having been enjoined or subjected to criminal penalties in other cases. The Court was aware of such facts in refusing the buffer zone at the preliminary injunction hearing. The Court once again rejects this argument based on the reasoning quoted above.
The United States also argues that a buffer zone is necessary due to the physical layout of the area in which MMA is located. Once again, the Court was aware of the layout at the preliminary injunction hearing when it denied the request for a buffer zone. No new facts have been alleged concerning the physical layout, and the Court rejects this argument.
The United States also argues that a buffer zone that gives law enforcement officers a definite, objective "bright line" by which to measure compliance would aid enforcement of the injunction. The United States puts forth deposition testimony of Lt. William Ryan and Deputy U.S. Marshal Blair Deem to this effect. Although this is certainly true, *160 the fact still remains that the obstructive acts took place inside of, or at the entrance to, the MMA building. There is no evidence to support an injunction for acts that might occur across the street. The Court will not broaden the injunction for the sole reason of creating a bright line to aid officers in enforcement, when the evidence does not support such a bright line.
Therefore, because the United States has produced no new evidence since the time of the preliminary injunction hearing that would serve as an adequate basis for a 60-foot buffer zone, the Court finds relief including such a buffer zone is not warranted in this case.
Statutory Damages
18 U.S.C. § 248(c)(1)(B) states, "With respect to compensatory damages, the plaintiff may elect, at any time prior to the rendering of final judgment, to recover, in lieu of actual damages, an award of statutory damages in the amount of $5,000 per violation." The court may award statutory damages by summary judgment when no material facts are in dispute. Greenhut v. Hand, 996 F.Supp. 372 (D.N.J.1998) (statutory damages awarded in Access Act lawsuit at summary judgment phase); Milwaukee Women's Medical Servs. v. Brock, 2 F.Supp.2d 1172 (E.D.Wis.1998) (court assessed statutory damages based on summary judgment motion). In filing this lawsuit, the United States requested that the Court impose a statutory damages award of $5,000 on each defendant for each time that defendant violated FACE. The parties disputed the proper interpretation of the civil remedies provisions of FACE, and the Court issued a Memorandum of June 18, 1998 resolving that dispute. The following analysis is based on the Memorandum of June 18, 1998.
The first dispute is whether the "$5,000 per violation" clause in 18 U.S.C. § 248(c)(1)(b) authorizes imposition of $5,000 in statutory damages per defendant participating in a given blockade-type violation of FACE, or whether that section authorizes only $5,000 per blockade, presumably to be shared by all defendants participating in such blockade. Two district court cases have addressed this precise question, and both of them resolved the issue in accordance with the contention of defendants here. See Greenhut, 996 F.Supp. at 379 (awarding $5,000 per violation); Milwaukee Women's Medical Servs., 2 F.Supp.2d at 1178 (stating that FACE authorizes statutory damages in the amount of $5,000 per violation, not per defendant).
This Court also resolves the issue in accordance with the contentions of the defendants here, for the following reasons. The Court's starting point on any question of statutory interpretation is the language of the statute. Built into that language is a dichotomy of expression that this Court finds meaningful as to the intent of Congress. In authorizing compensatory "statutory damages," Congress used the phrase "per violation." The intent of Congress was to eliminate the usual burden of an aggrieved person to prove actual damages, and to authorize compensation to such person, in an amount which it felt to be fair and just, for interference with that person's right to obtain or provide reproductive health services. Such fair and just compensation does not depend on, or relate to, the number of defendants interfering with such a right. One person can just as effectively injure, interfere with, or intimidate as can a group, depending on the circumstances. Moreover, conduct not involved here, but subject to the same civil remedies, such as interference with religious freedom rights and damage to religious worship facilities, can be perpetrated by a single individual or by a group. Given those variables, in this Court's view, Congress chose to authorize compensatory statutory damages in a fixed amount regardless of the number of individuals participating in the violation. Moreover, being compensatory, the $5,000 award logically and legally relates to the injury suffered rather than to the number of perpetrators, and, as indicated above, the injury suffered does not necessarily vary depending on the number of perpetrators.
In sharp contrast to the language it used in the compensatory statutory damages provision, Congress authorized the Court to assess substantial civil penalties "against each respondent" to vindicate the public interest, in an action brought by the Attorney General. See 18 U.S.C. § 248(c)(2)(B). Simply *161 put, Congress knew how to make it clear that each defendant was to be individually and monetarily responsible, when that was its intention. Because it used different language in authorizing compensatory statutory damages, this Court concludes that it meant something different. The considerations referred to above suggest to this Court that Congress meant to authorize $5,000 in compensatory statutory damages against all responsible persons jointly, for each violation.
The fact that, under the circumstances of this case, individual defendants would not necessarily be subject to a meaningful financial deterrent does not change the Court's view. Actual damages are available if proven, and meaningful financial deterrents are provided for under the civil penalty provisions if they would vindicate the public interest.
Defendants also argue that in no event may the Attorney General recover the statutory damages referred to in § 248(c)(1)(B). The Court rejects this argument. In an action by the Attorney General under § 248(c)(2), the relief available is the same as that available to an "aggrieved person" plaintiff, except that the Attorney General may not be awarded costs and fees and may recover civil penalties instead of the punitive damages available to the "aggrieved person" plaintiff. The specific cross-reference in § 248(c)(2)(B) to "compensatory damages to persons aggrieved as described in paragraph 1(B)" can only mean that the Attorney General is entitled to the same compensatory (including statutory) damages as an "aggrieved person" plaintiff could recover.
Defendants argue that they are entitled to mitigation of damages because their focus on the days in question was on partial birth abortions, which have been declared unlawful by the New Jersey Legislature. The Court rejects this position. Consistent with its prior rulings that partial birth abortions constitute "reproductive health services" within the meaning of FACE, the Court sees no reason to treat a focus on partial birth abortions as a mitigating factor in imposing the statutory damages sought.
Finally, defendants argue that the Attorney General is violating 18 U.S.C. § 248(d) and attempting to subvert New Jersey law by bringing this action. The Court disagrees. This action does not constitute interference with the enforcement of P.L. 1997, Chapter 262, whose enforcement mechanisms include license revocations and monetary penalties. See N.J.S.A. 2A:65A-5 et seq. This action seeks to enforce FACE against conduct which this Court has found to violate its terms.
Based on this interpretation of the statutory damages provision of FACE, the Court finds defendants jointly and severally liable (see, e.g., Milwaukee Women's Medical Servs., 2 F.Supp.2d at 1179) for $5,000 in statutory damages for each violation in which they participated. It appears that only five of the named defendants were involved in the August 7, 1996 violation Gregg, McDaniel, Menchaca, Pagnanelli, and Raiser. Thus, these defendants will be jointly and severally liable for $5,000. It appears that twelve of the named defendants participated in the January 18, 1997 violation Menchaca, Henry, Kidd, Matheson, O'Keefe, Alvarado, O'Hara, Roach, Rudnick, Soderna, Sweatt, and Wagi. Thus, these defendants will be jointly and severally liable for $5,000. It appears that nineteen of the named defendants participated in the March 15, 1997 violation Menchaca, Henry, Kidd, Matheson, O'Keefe, Adams, Blake, Boissonneault, Dino, Elliot, Fitzpatrick, Foley, Green, Lynch, Micco, Mulrenan, Traphagen, James Trott, and Kimiko Trott. Thus, these defendants will be jointly and severally liable for $5,000.
Accordingly, IT IS on this 11th day of December 1998 ORDERED that the motion for summary judgment of the United States is granted. Final Judgment is entered as follows:
(1) Defendants and their agents, servants, employees, attorneys, and all individuals acting in concert with them who receive actual notice of this Order are prohibited from:
(a) In any physical way, blocking, impeding, inhibiting, interfering with, or obstructing access to the Metropolitan Medical Associates Building and facilities at 40 Engle Street in Englewood, New Jersey (or attempting to do so); and
(b) In any physical way, intimidating or attempting to intimidate anyone seeking access *162 to the said Metropolitan Medical Associates building and facilities at 40 Engle Street in Englewood, New Jersey; and
(c) Entering on or being located on or within the premises of said Metropolitan Medical Associates at 40 Engle Street in Englewood, New Jersey (or attempting to do so), unless seeking reproductive health services available from Metropolitan Medical Associates.
(2) Defendants are jointly and severally liable for $5,000 for each violation in which they participated, with a maximum liability of all defendants of $15,000. More specifically, defendants Gregg, McDaniel, Menchaca, Pagnanelli, and Raiser are jointly and severally liable for $5,000 for their violations of FACE on August 7, 1996; defendants Menchaca, Henry, Kidd, Matheson, O'Keefe, Alvarado, O'Hara, Roach, Rudnick, Soderna, Sweatt, and Wagi are jointly and severally liable for $5,000 for their violations of FACE on January 18, 1997; and defendants Menchaca, Henry, Kidd, Matheson, O'Keefe, Adams, Blake, Boissonneault, Dino, Elliot, Fitzpatrick, Foley, Green, Lynch, Micco, Mulrenan, Traphagen, James Trott, and Kimiko Trott are jointly and severally liable for $5,000 for their violations of FACE on March 15, 1997.
NOTES
[1] In their Opposition Brief, defendants state "In face of the videotapes and some of the uncontradicted testimony [at the preliminary injunction hearing], we will not spend a great deal of time in disputing the facts that pertained to August 7, 1996, January 18, 1997, March 15, 1997, or for that matter, the April 19, 1997, events." Def. Opp. Br. at 9. Defendants instead dispute facts concerning the additional relief sought by the United States in the form of a 60-foot buffer zone and statutory damages.
[2] See Defendants' Opposition at 11, n. 1 (claiming that this exculpatory information exists, but stating that "[o]ur notes as to the location of theses [sic] [exculpatory] exceptions in the record are buried in our mass of papers.")
[3] Although defendants' brief appears to dispute only the broadening of the preliminary injunction to include a 60-foot buffer zone (see Opp. Br. at 15-23), the last paragraph of the brief states that the "court ought to consider dismissing the matter or at least vacating the injunction and denying a final injunction." Thus, it appears that defendants dispute the entry of a permanent injunction even if on the same grounds as the preliminary injunction.
[4] As pp. 8-12 of the Stipulated Facts indicate, defendants Blake, Boissonneault, Fitzpatrick, Gregg, Green, O'Hara, O'Keefe, Lynch, Matheson, McDaniel, Menchaca, Pagnanelli, Raiser, Roach, Soderna, Traphagen, and Wagi had each been involved in anti-abortion blockades prior to carrying out blockades at MMA.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45954
MICHAEL JARED THOMPSON, ) Boise, August 2018 Term
)
Petitioner-Appellant, ) Filed: March 4, 2019
)
v.
) Karel A. Lehrman, Clerk
STATE OF IDAHO, )
) SUBSTITUTE OPINION:
Respondent. ) THE OPINION FILED
) DECEMBER 18, 2018 IS
HEREBY WITHDRAWN
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Minidoka County. Hon. Jonathan P. Brody, District Judge.
District court order dismissing petition for post-conviction relief, affirmed.
Nevin Benjamin McKay & Bartlett, LLP, Boise, for appellant. Dennis Benjamin
argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Russell
Spencer argued.
__________________
BURDICK, Chief Justice.
Michael Jared Thompson appeals the district court’s order summarily dismissing his
petition for post-conviction relief based on ineffective assistance of counsel. Thompson was
charged and convicted of involuntary manslaughter with an enhancement for use of a deadly
weapon. Thompson’s direct appeal was unsuccessful and he filed a petition for post-conviction
relief based on ineffective assistance of counsel at trial and on appeal. Thompson argued his trial
counsel was ineffective for failing to request proximate and intervening cause jury instructions.
He also argued his appellate counsel was ineffective for failing to raise a claim of fundamental
error as to the jury instructions. The district court granted the State’s motion for summary
dismissal of Thompson’s petition for post-conviction relief. The Court of Appeals reversed the
district court’s order summarily dismissing Thompson’s petition. This Court granted the State’s
timely petition for review, and we affirm the district court’s judgment.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2011, Thompson and three friends went out for a night of social drinking.
Later that evening, Thompson’s friends began to argue and Thompson recommended the group
leave in his truck. After his friends continued to argue in the truck, Thompson stated, “if one of
you don’t shut up, I’m going to shoot somebody.” One of the friends, Michael Blair (Blair),
laughed, to which Thompson responded, “you think I’m kidding?” Thompson then pulled out a
loaded handgun and cocked it twice. Thompson held the gun in his right hand, put his elbow on
the center console and pointed the gun upward and backward. Blair then slid over to the middle
of the backseat and said, “if you’re going to shoot somebody, it might as well be me. End my
miserable existence.” Blair then put his hand on Thompson’s hand, and put his mouth around the
barrel of the gun. The gun then went off, killing Blair. Thompson told the others that Blair had
pulled the trigger.
Thompson was charged with involuntary manslaughter with an enhancement for use of a
deadly weapon. At trial, Thompson’s attorney argued that Thompson did not cause Blair’s death.
Rather, counsel argued, Blair caused his own death when he put his mouth on the barrel of a
loaded gun. Thompson’s counsel did not request, and the jury was not given, an instruction on
proximate or intervening cause. The jury returned a guilty verdict, and Thompson was later
sentenced to fifteen years in prison with five years fixed. Thompson appealed his conviction and
sentence, and the Court of Appeals affirmed. State v. Thompson, No. 40796, 2014 WL 6092429,
at *4 (Idaho Ct. App. Nov. 7, 2014).
One year later, Thompson filed a petition for post-conviction relief alleging his trial and
appellate counsel were ineffective. Thompson alleged that his trial counsel was ineffective for
failing to request proximate and intervening cause jury instructions. Thompson also alleged his
appellate counsel was ineffective for failing to assert a claim of fundamental error resulting from
the jury not being properly instructed on causation. The State moved for summary dismissal of
the post-conviction petition. The district court granted the State’s motion to dismiss, stating that
by virtue of finding Thompson guilty, the jury found there was causation, and an additional
instruction on proximate cause was not necessary and would not have changed the outcome.
Thus, the district court determined Thompson’s trial attorney was not ineffective for failing to
request proximate or intervening cause instructions. As to Thompson’s claim of ineffective
appellate counsel, the district court stated counsel did not have to raise the arguments Thompson
2
deemed worthy, and that there was no basis for an intervening cause instruction, as it would not
have changed the outcome. Thus, the district court determined Thompson failed to show
appellate counsel was ineffective. The Court of Appeals reversed the district court’s order
summarily dismissing Thompson’s petition for post-conviction relief. This Court granted the
State’s timely petition for review.
II. ISSUE ON APPEAL
Did the district court err in summarily dismissing Thompson’s petition for post-
conviction relief?
III. STANDARD OF REVIEW
When addressing a petition for review, this Court will give “serious consideration to the
views of the Court of Appeals, but directly reviews the decision of the lower court.” State v.
Schall, 157 Idaho 488, 491, 337 P.3d 647, 650 (2014) (quoting State v. Oliver, 144 Idaho 722,
724, 170 P.3d 387, 389 (2007)). “Proceedings for post-conviction relief are civil in nature, rather
than criminal, and therefore the applicant must prove the allegations in the request for relief by a
preponderance of the evidence.” State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013).
“Idaho Code § 19-4906 authorizes summary dismissal of an application
for post-conviction relief, either pursuant to motion of a party or upon the trial
court’s own initiative. Summary dismissal of an application is the procedural
equivalent of summary judgment under I.R.C.P. 56.” “When reviewing the grant
of a motion for summary judgment, this Court applies the same standard used by
the district court in ruling on the motion.” Likewise, when reviewing a district
court’s order of summary dismissal in a post-conviction relief proceeding, we
apply the same standard as that applied by the district court. Thus, when
reviewing such a dismissal, this Court must determine whether a genuine issue of
fact exists based on the pleadings, depositions and admissions together with any
affidavits on file.
Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) (citations omitted).
IV. ANALYSIS
A. Thompson’s trial counsel was not ineffective for failing to request proximate and
intervening cause jury instructions.
“A defendant claiming ineffective assistance of counsel must show that (1) counsel’s
representation was deficient; and (2) counsel’s deficient performance prejudiced the defendant.”
Marr v. State, 163 Idaho 33, ___, 408 P.3d 31, 35 (2017) (citing Strickland v. Washington, 466
U.S. 668, 688–92 (1984)). “To show counsel was deficient, the defendant has the burden of
showing that his attorney’s representation fell below an objective standard of reasonableness.”
3
Marr, 163 Idaho at 37, 408 P.3d at 35. “To show that counsel’s deficient performance was
prejudicial, the defendant must show there is a reasonable probability that, but for counsel’s
deficiencies, the result of the proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 669).
This Court has said, “[d]efense counsel’s failure to object to a reversible jury instruction
is objectively deficient performance sufficient to meet the first prong of the Strickland inquiry.”
Crawford v. State, 160 Idaho 586, 596, 377 P.3d 400, 410 (2016).However, “if the jury
instruction was not reversible error, then failure to object to it cannot have prejudiced the
defendant because the lack of reversible error means the jury was not confused or misled by the
instruction, and therefore there is no likelihood of a different result at trial had the instruction not
been given.” Id. “Therefore, both the deficient performance and prejudice prongs of the
Strickland analysis turn on whether the instructions as given were reversible error.” Id.
“The issue of whether a particular jury instruction is necessary and whether the jury has
been properly instructed is a matter of law over which this Court exercises free review.” State v.
Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996). “Ordinarily the language employed by
the legislature in defining a crime is deemed to be best suited for that purpose, and error cannot
be predicated on its use in jury instructions.” Id. (citing State v. Aragon, 107 Idaho 358, 362, 690
P.2d 293, 297 (1984)). “Terms which are of common usage and are sufficiently generally
understood need not be further defined when instructing the jury.” Id. “When the instructions,
taken as a whole, do not mislead or prejudice a party, even an erroneous instruction does not
constitute reversible error.” Crawford, 160 Idaho at 596, 377 P.3d at 410 (quoting Chapman v.
Chapman, 147 Idaho 756, 759, 215 P.3d 476, 479 (2009)). Put another way, “[t]he question is
whether the instructions as a whole, and not individually, fairly and accurately reflect the
applicable law.” McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010) (quoting State v.
Page, 135 Idaho 214, 221, 16 P.3d 890, 897 (2000)).
The involuntary manslaughter statute pursuant to which Thompson was charged provides
in relevant part that “[m]anslaughter is the unlawful killing of a human being including, but not
limited to, a human embryo or fetus, without malice.” I.C. § 18-4006. This includes “the
operation of any firearm or deadly weapon in a reckless, careless or negligent manner which
produces death.” Id. In this case, the dispute is in regard to the word “produces” and whether that
word implies an element of proximate cause into the statute.
4
“[P]roximate cause ‘is composed of two elements: cause in fact and scope of legal
responsibility.’ ” Cramer v. Slater, 146 Idaho 868, 875, 204 P.3d 508, 515 (2009) (quoting Doe
v. Sisters of Holy Cross, 126 Idaho 1036, 1039, 895 P.2d 1229, 1232 (Ct. App. 1995)). “Actual
cause is the factual question of whether a particular event produced a particular consequence.”
Cramer, 146 Idaho at 875, 204 P.3d at 515 (quoting Newberry v. Martens, 142 Idaho 284, 288,
127 P.3d 187, 191 (2005)). However, “true proximate cause focuses on whether legal policy
supports responsibility being ‘extended to the consequences of conduct.’” Id. “[T]rue proximate
cause deals with ‘whether it was reasonably foreseeable that such harm would flow from the
negligent conduct.’” State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011) (quoting
State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009)). Thus, the inquiry for this
Court is “whether the injury and manner of the occurrence are ‘so highly unusual that we can
say, as a matter of law that a reasonable [person], making an inventory of the possibilities of
harm which his conduct might produce, would not have reasonably expected the injury to
occur.’” Lampien, 148 Idaho at 374, 223 P.3d at 757 (quoting Cramer, 146 Idaho at 875, 204
P.3d at 515).
An intervening or superseding cause “generally refers to an independent act or force that
breaks the causal chain between the defendant’s culpable act and the victim’s injury.” Lampien,
148 Idaho at 374, 223 P.3d at 757. “The intervening cause becomes the proximate cause of the
victim’s injury and removes the defendant’s act as the proximate cause.” Id. at 374–75, 223 P.3d
at 757–58. “To relieve a defendant of criminal liability, an intervening cause must be an
unforeseeable and extraordinary occurrence.” Id. at 375, 223 P.3d at 758. However, “[t]he
defendant remains criminally liable if either the possible consequence might reasonably have
been contemplated or the defendant should have foreseen the possibility of harm of the kind that
could result from his act.” Id.
The jury instructions regarding causation that were given at Thompson’s trial are as
follows:
Instruction No. 10:
In order for the defendant to be guilty of involuntary manslaughter by negligent
use of a deadly weapon, the state must prove each of the following:
1. On or about December 16, 2011 and December 17, 2011
2. in the state of Idaho
3. the defendant Michael Jared Thompson used a firearm with reckless
disregard of the consequences and of the rights of others,
5
4. producing the death of Michael Kenneth Blair.
If any of the above has not been proven beyond a reasonable doubt, you must find
the defendant not guilty. If each of the above has been proven beyond a
reasonable doubt, then you must find the defendant guilty.
Instruction No. 10a:
The defendant, Michael Jared Thompson, is charged in this case with Involuntary
Manslaughter. Manslaughter is the unlawful killing of a human being without
malice. In charging the Defendant with involuntary Manslaughter, the State must
prove, beyond a reasonable doubt that (1) a death occurred, and (2) the defendant
unlawfully caused that death.
In this case, for the reasons discussed below, Thompson’s counsel was not ineffective for
failing to object to the given jury instructions and instead request proximate and intervening
cause instructions.
As an initial matter, we note that the issue of whether the attorney made a strategic or
tactical decision in not requesting the instructions was not raised below and is not at issue on
appeal. See Kirk v. Wescott, 160 Idaho 893, 899, 382 P.3d 342, 348 (2016) (stating that issues
not raised below will not be considered on appeal); Akers v. Mortensen, 160 Idaho 286, 288, 371
P.3d 340, 342 (2016) (“a party waives an appellate issue that is not supported with relevant
argument or authority.”). The concurrence contends this issue was raised and decided below and
asserts that “Thompson raised the issue by pleading that trial counsel’s decision could not have
been a strategic decision. The deputy prosecutor responded by arguing that counsel’s failure to
request jury instructions on proximate cause and superseding, intervening cause was strategic.”
The concurrence also contends the trial judge ruled on the issue when “the trial judge found trial
counsel’s performance ‘was not deficient.’” We disagree.
While it is true Thompson stated in his petition for post-conviction relief that the inaction
on the part of counsel was not a strategic or tactical decision, this one line in Thompson’s
petition is the extent of the discussion of the issue below. The State’s brief in support of
dismissing Thompson’s petition contains only broad statements of law regarding strategic,
tactical decisions, and does not argue that trial counsel’s decision in this case was in fact a
strategic or tactical decision. Though the State does make an argument that relates to strategic
decisions later in its briefing, this argument relates only to gun shot residue evidence, as opposed
to the failure to request proximate cause instructions.
The concurrence contends that the State’s statement “Thompson must overcome a strong
presumption that counsel made all significant decisions in the exercise of reasonable professional
6
judgment” followed by the State’s discussion that the case law as it relates to superseding,
intervening cause would not have benefitted Thompson is sufficient to show the State argued the
issue below. However, this implication is insufficient to demonstrate this issue was raised and
argued below. In State v. Payne, we stated, “[i]t is generally agreed that the decision of what
evidence should be introduced at trial is considered strategic or tactical.” 146 Idaho 548, 563,
199 P.3d 123, 138 (citation omitted). Thus, a defendant must provide evidence which suggests
that such decision resulted from inadequate preparation, ignorance or other shortcomings. Id. In
this case, there was no such discussion before the lower court from either Thompson or the State.
The concurrence suggests the lower court’s statement that “an instruction on intervening cause
might well have limited argument counsel could make; the manslaughter instruction did not limit
the ways for the defendant to argue that Thompson’s conduct produced the death where an
intervening cause instruction would have” was sufficient to show “that the district judge
recognized defense counsel’s omission of an instruction on intervening cause as a strategic
decision.” We do not read such implication into this statement by the lower court, especially in
the void of any argument as to it being a strategic decision. In any event, even if this issue was
raised below, it is not at issue on appeal, and as such we do not address it. See Akers, 160 Idaho
at 288, 371 P.3d at 342 (“[A] party waives an appellate issue that is not supported with relevant
argument or authority”).
Next, it is undisputed that the jury instructions that were given reflected the statutory
language of the crime with which Thompson was charged, and as such are normally not
erroneous. See Aragon, 107 Idaho at 362, 690 P.2d at 297 (“An instruction to the jury that
essentially follows the words of a statute normally is not error.”). Moreover, the instructions
given were in accordance with the Idaho Criminal Jury Instructions (ICJI). See McKay, 148
Idaho at 571 n.2, 225 P.3d at 704 n.2 (“The I.C.J.I. are presumptively correct. . . . Trial courts
should follow the I.C.J.I. as closely as possible to avoid creating unnecessary grounds for
appeal.”). Thompson acknowledges this, but contends that the jury should have also been
instructed on proximate and intervening cause.
First, Thompson cites to State v. Monteith, a vehicular manslaughter case, where the
defendant “was charged with involuntary manslaughter, committed by driving an automobile in a
reckless, careless, and heedless manner, driving while under the influence of intoxicating liquor,
not on his right side of the road, and at an excessive speed.” 53 Idaho 30, 33, 20 P.2d 1023, 1024
7
(1933). This Court stated that the “the issue of proximate cause in this case was for the jury, and
the court carefully instructed as to proximate cause and the necessity of the jury finding that
negligence or some other unlawful act of the defendant was the proximate cause of the death.”
Id. at 40, 20 P.2d at 1027. Despite Thompson’s contentions, a direct comparison cannot be drawn
from Monteith because there the defendant was charged with vehicular manslaughter, as opposed
to involuntary manslaughter through the reckless use of a firearm. Monteith did not resolve the
word “produces” as is at issue here. Additionally, though vehicular manslaughter cases and the
statutory language for vehicular manslaughter at one time required a determination of proximate
cause, such has never been required in the case of involuntary manslaughter through the reckless
use of a firearm. S.B. 1603, S.L. 1972, ch. 336, ch. 40. And, in 1983 the Legislature redefined
the involuntary manslaughter statute, and removed the proximate cause requirement for vehicular
manslaughter, later replacing it with “significant cause.” H.B. 1, Ex. S. L. 1983, ch.3, § 17; H.B.
143, S.L. 1997, ch. 103, § 1; I.C. § 18-4006(3). Thus, Thompson’s reliance on Monteith is
misplaced.
Next, Thompson cites to Lampien, where we articulated the rules of intervening,
superseding cause. 148 Idaho at 375, 223 P.3d at 758. We stated,
An intervening, superseding cause generally refers to an independent act
or force that breaks the causal chain between the defendant’s culpable act and the
victim’s injury. The intervening cause becomes the proximate cause of the
victim’s injury and removes the defendant’s act as the proximate cause. To relieve
a defendant of criminal liability, an intervening cause must be an unforeseeable
and extraordinary occurrence. The defendant remains criminally liable if either
the possible consequence might reasonably have been contemplated or the
defendant should have foreseen the possibility of harm of the kind that could
result from his act. In most contexts, a crime or an intentional tort constitutes an
“independent, intervening cause” that precludes a defendant’s antecedent crime
from being a proximate cause.
Id. at 374–75, 223 P.3d at 757–58 (citations omitted). Thompson contends “if counsel had
requested causation instructions including an instruction on intervening, superseding cause, the
instructions would have been appropriate.” Thus, Thompson argues, Lampien contradicts the
district court’s statement that there was no evidence a proximate or intervening cause jury
instruction would have been applicable in this case. However, Thompson’s argument fails to
acknowledge the entirety of the district court’s reasoning. The district court did not deny a
request for proximate or intervening cause instructions, nor did it say proximate or intervening
cause instructions were inappropriate. Rather, the district court said that the statute through the
8
word “produces” required a finding by the jury that Thompson caused Blair’s death. And, the
jury found causation when it found Thompson guilty. Thus, the court reasoned, a proximate or
intervening cause instruction was not necessary nor would it have changed the outcome.
Therefore, the court reasoned, Thompson’s counsel was not deficient in failing to request such
instructions, nor was Thompson prejudiced by the lack of such instructions. Thompson’s reliance
on Lampien to show the district court erred is unpersuasive.
Thompson next cites to State v. Abdullah, 158 Idaho 386, 427, 348 P.3d 1, 42 (2015), and
argues Abdullah holds that “an intervening cause may break the causal chain and prevent
conviction for arson.” In Abdullah, the defendant argued he could not be guilty of first-degree
arson because he only poured the gasoline, but did not “provide the ignition source” for the fire,
when a water heater pilot light ignited the gasoline before the defendant was able to. Abdullah,
158 Idaho at 427, 348 P.3d at 42. The defendant analogized to first-degree murder, likening his
pouring of the gasoline to that of an intentional stabbing that does not result in the victim’s death,
stating the stabbing alone would not be sufficient for first-degree murder. Id. at 427–28, 348 P.3d
at 42–43. This Court rejected the argument, and stated the defendant’s intended result occurred;
that is, his willful, unlawful conduct damaged a dwelling by fire. Id. at 428, 348 P.3d at 43. This
Court went on to discuss the first-degree murder analogy and proximate cause. Id. We stated,
“[b]ased on our interpretation of Idaho’s arson statute, we recognize that in subsequent arson
prosecutions an instruction on causation may be necessary depending on the facts of the case.”
Id. However, because the defendant did not raise the issue of causation, the Court did not discuss
whether a causation instruction would have been appropriate. Id. Thompson contends Abdullah
stands for the proposition that an instruction on proximate or intervening cause needed to be
given. We do not read Abdullah so expansively.
First, we note that the jury instruction in Abdullah did not contain any causation language
at all; rather, it said the State had to prove the defendant “willfully . . . by fire or explosion . . .
damaged . . . a dwelling.” Id. at 427, 348 P.3d at 42. The arson statute itself provided “[a]ny
person who willfully and unlawfully, by fire or explosion, damages . . . [a]ny dwelling, whether
occupied or not . . . is guilty of arson in the first degree. . . .” Id. (quoting I.C. § 18-802). Thus,
the Court’s reasoning that a causation jury instruction may be needed in appropriate cases was
addressing the complete absence of causation language in the arson instruction. In Thompson’s
case, the jury was instructed on causation, as instruction 10a explicitly required the jury to find
9
Thompson “unlawfully caused” Blair’s death. Additionally, in Abdullah, this Court said only that
a causation instruction may be needed; it did not state that specific instructions on proximate or
intervening cause were required. While Abdullah may stand for the proposition that instructions
can deviate from the statutory language in appropriate cases, it does not mandate a requirement
for proximate and intervening cause instructions. Abdullah cannot be read to have required
Thompson’s trial counsel to request proximate or intervening cause instructions.
Lastly, Thompson cites to McKay to support the proposition that Thompson’s counsel
was ineffective for not requesting proximate cause instructions. 148 Idaho at 572, 225 P.3d at
705. McKay does not support the result Thompson seeks. In McKay, this Court stated it was
ineffective assistance of counsel when counsel failed to object to jury instructions that deviated
from the criminal statute and the ICJI. Id. The applicable ICJI instructions required the State to
prove that the defendant was driving under the influence and that “the defendant’s operation of
the motor vehicle in such unlawful manner was a significant cause contributing to the death [of
the victim].” Id. at 571, 225 P.3d at 704 (quoting ICJI 709). However, the instructions given
stated the jury could convict the defendant if “while under the influence of alcohol . . . the
defendant’s operation of the motor vehicle caused the death of [the victim].” Id. (internal
quotation marks omitted). This Court stated the district court’s instructions had two deficiencies.
Id. First, the district court’s instructions omitted the statutory language requiring defendant’s
driving be a “significant” cause of the death rather than just a cause. Id. Second, the instructions
omitted the ICJI’s language “in such unlawful manner” which therefore did not require the State
to prove that the defendant’s culpable conduct caused the death. Id. This Court determined the
defendant had satisfied both prongs of Strickland stating, “[i]t is well established that it is a
violation of the Due Process Clause and the right to a jury trial for the defendant to be convicted
on instructions that omit an element of the crime.” Id.
In this case, unlike in McKay, the jury instructions given were in compliance with both
the involuntary manslaughter statute and the ICJI. Unlike in McKay where language from the
statute and ICJI were omitted, here, no element of the crime was omitted, nor was any ICJI
language omitted from the instructions given to the jury. This Court has said that the “language
employed by the legislature in defining a crime is deemed to be best suited for that purpose, and
error cannot be predicated on its use in jury instructions.” Zichko, 129 Idaho at 264, 923 P.2d at
971 (citing Aragon, 107 Idaho at 362, 690 P.2d at 297). Here, Thompson is attempting to
10
predicate error on jury instructions that completely complied with the statutory language and
ICJI. As noted, “[t]he question is whether the instructions as a whole, and not individually, fairly
and accurately reflect the applicable law.” McKay, 148 Idaho at 570, 225 P.3d at 703 (quoting
Page, 135 Idaho at 221, 16 P.3d at 897). Because the instructions complied with the statutory
language and the ICJI, the instructions fairly and adequately reflected the applicable law. See id.
Thus, the instructions would not constitute reversible error. Id. Therefore, Thompson has not
shown that his counsel was ineffective in failing to object to the given instructions and request
proximate and intervening cause instructions. See Crawford, 160 Idaho at 596, 377 P.3d at 410
(“both the deficient performance and prejudice prongs of the Strickland analysis turn on whether
the instructions as given were reversible error.”).
Finally, we note that the Idaho Civil Jury Instructions (IDJI) on proximate cause state in
relevant part that,
the expression “proximate cause,” [means] a cause that, in natural or probable
sequence, produced the injury, the loss or the damage complained of. It need not
be the only cause. It is sufficient if it is a substantial factor in bringing about the
injury, loss or damage. It is not a proximate cause if the injury, loss or damage
likely would have occurred anyway.
IDJI 2.30.1, 2.30.2 (emphasis added). Thus, the relevant IDJI instruction contains the word
produces—the exact word in the statute that Thompson is challenging. Thompson’s reasoning is
circular, as he contends on one hand that the word “produces” requires an instruction on
proximate cause, but the instruction on proximate cause utilizes the word “produces”. Thus, it is
unclear how the proximate cause instruction would have aided the jury or led to a different
outcome than the instructions as given. See Marr, 163 Idaho at 37, 408 P.3d at 35. (Stating that
to satisfy the prejudice prong of Strickland “the defendant must show there is a reasonable
probability that, but for counsel’s deficiencies, the result of the proceeding would have been
different.”) (citing Strickland, 466 U.S. at 669). Here, Thompson has not met his burden of
showing that the giving of the proximate cause instruction would have resulted in a different
outcome.
In sum, it cannot be said that Thompson’s trial counsel’s actions fell below an objective
standard of reasonableness. As discussed, Thompson’s counsel requested instructions pursuant to
both ICJI and the statute. Thompson contends his counsel should have also requested additional
proximate and intervening cause instructions; however, there was no authority requiring his
counsel to do so. Because the jury was instructed on causation generally, and because the
11
proximate cause instruction itself contains the word “produces,” the district court properly
determined that the outcome would not have been different had the jury been instructed on
proximate cause. Accordingly, the district court did not err in summarily dismissing Thompson’s
petition for post-conviction relief as to ineffective assistance of trial counsel.
B. The district court did not err when it dismissed Thompson’s petition for post-
conviction relief based on ineffective assistance of appellate counsel.
Thompson also contends his appellate counsel was ineffective for raising a sufficiency of
the evidence claim on appeal, rather than raising a claim of fundamental error as to the jury
instructions on causation. The district court summarily dismissed this claim, determining
Thompson’s appellate counsel was not ineffective. The district court stated that appellate counsel
did not have to raise any specific claims Thompson wanted, and because there was no basis for a
proximate or intervening cause instruction, the outcome in Thompson’s case would not have
been different. We affirm the district court’s summary dismissal.
“The effectiveness of appellate counsel is reviewed under the same standard as trial
counsel.” Crawford, 160 Idaho at 597, 377 P.3d at 411 (quoting Dunlap v. State, 159 Idaho 280,
296, 360 P.3d 289, 305 (2015)). Thus, a defendant must demonstrate “that (1) counsel’s
representation was deficient; and (2) counsel’s deficient performance prejudiced the defendant.”
Marr, 163 Idaho at ___, 408 P.3d at 35 (citing Strickland, 466 U.S. at 688–92). “Appellate
counsel is not required to raise every issue available to the defendant.” Crawford, 160 Idaho at
597, 377 P.3d at 411. “Rather, ‘[t]o demonstrate deficient performance of appellate counsel for
failure to raise a claim on appeal, the defendant must show that counsel made an objectively
unreasonable decision to omit the claim.’ ” Id. at 598, 377 P.3d at 412 (quoting Dunlap, 159
Idaho at 296, 360 P.3d at 305). “Courts have recognized that appellate counsel may fail to raise
an issue on appeal because counsel ‘foresees little or no likelihood of success on that issue;
indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of
effective appellate advocacy.’ ” Dunlap, 159 Idaho at 296, 360 P.3d at 305 (quoting Miller v.
Keeney, 882 F.2d 1428, 1434 (9th Cir.1989)). Thus, generally “only when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance of counsel be
overcome.” Dunlap, 159 Idaho at 297, 360 P.3d at 306 (quoting Smith v. Robbins, 528 U.S. 259,
288 (2000)).
12
Because we determined trial counsel was not ineffective in failing to request the
causation instructions below, appellate counsel similarly is not ineffective for failing to raise that
claim on appeal. Thus, we affirm the district court’s summary dismissal.
V. CONCLUSION
The district court did not err in summarily dismissing Thompson’s petition for post-
conviction relief. Accordingly, the district court’s judgment is affirmed.
Justices HORTON, BEVAN and MELANSON, Pro Tem, CONCUR.
STEGNER, Justice, concurring.
I agree with the majority in its conclusion that the district court properly dismissed
Thompson’s petition for post-conviction relief. However, the majority also concluded “that the
issue of whether [Thompson’s trial] attorney made a strategic or tactical decision in not
requesting the instructions was not raised below.” Because I respectfully disagree with this
statement, I find it necessary to write a concurrence.
Thompson raised the issue below by pleading that trial counsel’s decision could not have
been a strategic decision. The deputy prosecutor responded by arguing that counsel’s failure to
request jury instructions on proximate cause and superseding, intervening cause was strategic.
And, the trial judge found trial counsel’s performance “was not deficient.” Consequently, the
issue was not only raised below – the judge explicitly ruled on it.
Thompson alleged in his verified petition that his trial counsel’s “[i]naction [in failing to
request proper jury instructions] cannot be attributed to an exercise of reason or representative of
strategic tactile [sic] decision making; but clearly does indicate oversight.” As such, the issue
was raised in the petition and the State was put on notice of it. Subsequently, both the State and
the district court addressed the issue.
In analyzing Thompson’s claims, the deputy prosecutor identified Thompson’s initial
claim of ineffective assistance of counsel as “First Claim: Failure to Request Proximate Cause
and Intervening Cause Jury Instruction(s)[.]” The deputy prosecutor’s introductory topic heading
is followed by this statement: “Thompson must overcome a strong presumption that counsel
made all significant decisions in the exercise of reasonable professional judgment.”
The deputy prosecutor next argued, “the giving of a jury instruction regarding proximate
cause, as a matter of law, would not have altered the verdict or establish[ed]” ineffective
assistance of counsel. The deputy prosecutor also argued that the case law as it relates to
13
superseding, intervening cause would not have benefitted Thompson. The deputy prosecutor
cited State v. Corbus, 150 Idaho 599, 249 P.3d 398 (2011) for the proposition that “[t]he
defendant remains criminally liable if either the possible consequence might reasonably have
been contemplated or the defendant should have foreseen the possibility of harm of the kind that
could result from his act.” Id. at 402, 249 P.3d at 603 (citations omitted).
The district judge found “an instruction on intervening cause might well have limited
argument counsel could make; the manslaughter instruction did not limit the ways for the
defendant to argue that Thompson’s conduct produced the death where an intervening cause
instruction would have.” In addition, and as noted, the trial judge found counsel’s performance
“was not deficient.” These statements reflect that the district judge recognized defense counsel’s
performance in not requesting the instructions as a strategic decision.
Consequently, I believe it is inaccurate to say “that the issue of whether [Thompson’s
trial] attorney made a strategic or tactical decision in not requesting the instructions was not
raised below.” The words “tactical decision” may not have been expressly used by either trial
counsel or the trial judge. Nevertheless, I think a fair reading of the record below indicates one
basis for the trial judge’s decision was that defense counsel’s decision to not request the jury
instructions was one of tactics, rather than incompetence.
Because the parties have not raised counsel’s tactical decision-making on appeal, that
issue need not be addressed. Ultimately, I concur with the majority’s opinion.
14
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[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1862
CARLOS GARCIA,
Petitioner, Appellant,
v.
PAUL MURPHY, SUPERINTENDENT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Carlos Garcia on Motion in Opposition to the Respondent’s
Motion to Dismiss, pro se.
Thomas F. Reilly, Attorney General, and Annette Benedetto,
Assistant Attorney General, on brief for appellee.
August 31, 2000
Per Curiam. Petitioner-appellant Carlos Garcia
appeals the denial of his petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254. Having carefully
reviewed the record in this case, we uphold the district
court's denial of habeas relief.
In order to obtain habeas relief in the instant
case, Garcia must show that the adjudication of his claim
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States." 28 U.S.C. §2254(d)(1). We discern no rule in the
Supreme Court's Confrontation Clause jurisprudence which
directly governs the alleged error in this case. Cruz v.
New York, 481 U.S. 186 (1987), which prohibits the admission
of a codefendant's confession in cases where the defendant's
own confession is also admitted, is inapplicable since
Garcia did not confess in the instant case. Richardson v.
Marsh, 481 U.S. 200, 211 (1987) specifically addresses a
situation in which a nontestifying codefendant's confession
has been redacted to eliminate all reference to a defendant.
-2-
The statement admitted in this case contains specific
references to Garcia.
Since there is no clearly established Supreme Court
law to which the SJC's decision in this case can be
"contrary," we must evaluate Garcia's petition under the
"unreasonable application" clause of section 2254(d)(1).
O'Brien v. Dubois, 145 F.3d 16, 26 (1st Cir. 1998).
Specifically, we must determine whether the SJC decision is
"objectively reasonable." Williams v. Taylor, 120 S.Ct.
1495, 1520-21 (2000). For the writ to issue in this case,
the SJC decision must be "so devoid of record support, or so
arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes." O'Brien, 145 F.3d at 25.
The SJC relied on the general presumption endorsed
by the Supreme Court that a Confrontation Clause violation
is less likely to occur when, as in the instant case, the
admitted statement does not expressly incriminate a
defendant but becomes so only when linked with other trial
evidence. Richardson, 481 U.S. at 208. Moreover, again in
accord with Supreme Court doctrine, id. at 211, the SJC paid
precise attention to the facts of the case and especially to
the "clear and forceful" instructions given to the jury that
-3-
it was not to consider the statement against Garcia,
Commonwealth v. James, 424 Mass. 770, 784, 678 N.E.2d 1170,
1180 (1997). Nothing in this calculus leads us to believe
that the SJC's conclusion that no constitutional violation
occurred was "outside the universe of plausible, credible
outcomes." Hence, there was no unreasonable application of
clearly established Supreme Court precedent.
Affirmed.
-4-
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906 F.Supp. 1251 (1995)
SELECT CREATIONS, INC., a Wisconsin corporation, Plaintiff,
v.
PALIAFITO AMERICA, INC., an Illinois corporation, Defendant, Counterplaintiff and Third-Party Plaintiff,
v.
Miryoung (or "Mi Ryoung") LEE a/k/a "Joy Lee", et al., Third-Party Defendants.
No. 91-C-1240.
United States District Court, E.D. Wisconsin.
May 1, 1995.
*1252 *1253 Harold A. Laufer, Davis & Kuelthau, Milwaukee, WI, David Springer, John Lyons, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Defendant and Third Party Plaintiff.
David F. Loeffler, Greg Peters, Krukowski & Costello, Milwaukee, WI, for Miryoung Lee.
DECISION AND ORDER
WARREN, District Judge.
Now before the Court is the motion of defendant-counterplaintiff and plaintiff Paliafito America, Inc. ("Paliafito"), to hold Joy Lee, Jerry Lee, and David Loeffler, Esq. in civil contempt of court for violating several orders of this Court. Paliafito alleges the following contempts of court: (1.) that Joy Lee destroyed documents in violation of this Court's order; (2.) that Joy Lee opened a new bank account in violation of this Court's order; (3.) that Joy and Jerry Lee violated this Court's order by causing Grip Toy products and money to be transferred between and among various defendant corporations; and (4.) that Joy Lee, aided and abetted by David Loeffler, violated this Court's order by selling her stock in MAI Inc.
For the following reasons, Paliafito's motion will be granted in part and denied in part.
FINDINGS OF FACT
I. THE ACTORS
1. Paliafito America, Inc. ("Paliafito"), an Illinois corporation, is a defendant-counterplaintiff in the underlying action, Select Creations v. Paliafito, Case No. 91-C-1240, and the plaintiff in this contempt proceeding.
2. Miryoung ("Joy") Lee and Jong Sik ("Jerrold" or "Jerry") Lee, husband and wife, are third-party defendants in the underlying case and defendants in this action. They are partners in the manufacture and sale of the "Grip Toys" line of products. (PX 32, ¶¶ 4-7).[1]
3. Joy Lee, formerly a citizen of South Korea, is a naturalized United States citizen who resided in the State of California during all times relevant to this motion. (1 Tr. 80: 2-5 (Lee)). She is a counterdefendant in the underlying litigation, and is named as one of the "Mantae defendants" in this Court's First Supplemental Writ of Attachment, Preliminary Injunction, and Appointment of Receiver ("the First Supplemental Writ"). (PX 100 ¶ 1). Until May of 1993, Joy Lee was President and CEO of MAI, Inc. (4 Tr. 816: 19-21); (PX 109). Until at least July 8, 1993, Joy Lee owned the issued and outstanding *1254 stock of MAI, Inc. (PX 136 and PX 242 (stock transfer)).
4. Jong Sik ("Jerry") Lee is a citizen and resident of Korea and the husband of Joy Lee. He is one of the counterdefendants in the underlying litigation and one of the "Mantae defendants" as defined in the First Supplemental Writ. (PX 100, ¶ 1). Jerry Lee was the majority owner of the Korean company, MAI, Ltd.
5. David Loeffler, Esq., is a partner in the law firm of Krukowski & Costello, S.C. He has been counsel of record for the Lees since April 27, 1993. (8 Tr. 1655: 3-5 (Loeffler).)
6. Many Amazing Ideas, Inc. ("MAI") is an American corporation which was owned and operated by Joy Lee. MAI was primarily engaged in the business of importing and distributing Grip Toy products. On February 22, 1993, MAI filed a Chapter 11 bankruptcy petition. MAI operated as a debtor-in-possession ("DIP") until December 8, 1993, when a Chapter 7 trustee was appointed.
7. From April 2, 1993 until May 28, 1993, Robert Wilcox was Chief Operating Officer of MAI, and from May 28, 1993 until at least December 8, 1993, Wilcox was also President, Chief Executive Officer, Treasurer, and Secretary of MAI. (6 Tr. 1108: 2-12 (Wilcox)).
8. MAI Ltd. was the Korean operation owned and operated by Jerry Lee which, until December of 1992, was the principal supplier of Grip Toy products to MAI, Inc. (3 Tr. 575; 8-576: 12; 583: 8-25 (Lee)). MAI, Ltd. is defined as one of the "Mantae defendants" in the underlying action.
II. BACKGROUND
A. The Underlying Action
9. On December 11, 1991, Paliafito filed its first amended counterclaim and third-party complaint in this action, alleging that the Lees and MAI had breached their contract with Paliafito, committed frauds against Paliafito, and violated the Racketeer Influenced and Corrupt Organizations Act. Paliafito also moved for preliminary writs of attachment and a preliminary injunction, on the grounds, among others, that the Lees and MAI were remitting virtually all of the proceeds from the sale of Grip Ball back to Korea so that, even if and when Paliafito obtained a judgment, there would be no funds in the United States left to satisfy it. See Select Creations, Inc. v. Paliafito America, Inc., 830 F.Supp. 1213, 1215 (E.D.Wis. 1993).
10. This Court conducted hearings on Paliafito's motion for four days in January and another six days in April 1992. Id. During the course of the 1992 hearings, Paliafito presented strong evidence that the Lees operated a web of corporate pools through which they could transfer and hide assets. (PX 32 at 195 (Conclusions of Law ¶ 89(c))).
11. As more fully described below, after Paliafito filed its counterclaim and motion, the Lees began to take steps designed to frustrate the orders this Court might and ultimately didenter to preserve evidence and to protect Paliafito's ability to collect a judgment. The totality of the evidentiary record before this Court, together with Joy Lee's demeanor while testifying before this Court, her repeated impeachments on prior inconsistent statements (many of them sworn), her evasive manner of testifying, the absurdity of some of her "explanations," compels the conclusion that the Lees have engaged in a pattern of willful, and flagrant contempts of this Court's orders.
B. The Lees Control Several Corporations Worldwide Through Which They Can Hide Assets
12. Puff Pac Production Limited and Mi Jong Industries were Lee-controlled companies located in Korea.
13. During the evidentiary hearings on Paliafito's motion for a writ of attachment in early 1992, Paliafito identified Puff Pac Productions as being part of the Lees' corporate pool. (PX 32 at 5, Findings of Fact ¶¶ 14-16).
14. Puff Pac Productions was engaged in the manufacture of Grip Ball products and was owned by Jerry Lee and his family. (PX 32 at 5, Findings of Fact ¶¶ 15-16).
*1255 15. At the time, Jong Ok Lee, Jerry's brother (5 Tr. 858: 2-4 (Lee)), and Ho Seop Song, Joy's brother (1 Tr. 140: 5-7 (Lee)), were the directors of Puff Pac Productions Limited. (PX 18).
16. On April 15, 1992, almost immediately after the close of the evidentiary hearings, Puff Pac Production Limited changed its name to "Mi Jong," and Jong Ok Lee and Ho Seop Song resigned as directors. (PX 18).
17. "Mi Jong" had been the name of another Lee-controlled company (1 Tr. 141: 11-21 (Lee)) which, on February 10, 1992, had changed its name to "Mai Moolsan." (PX 20). Jerry had been auditor of that company, but on August 7, 1992, it was wound up by vote of the shareholders and Jong Ok Lee, Jerry's brother, was appointed liquidator. (PX 20).
18. Puff Pac/Mijong obtained over $3 million from the sale of Grip Ball. (PX 53 at MAI-86).
19. The Lees control the Indonesian manufacturing company, P.T. Kartika Sinarnusa Semesta ("PTKSS"), also called PTMJ Products. (1 Tr. 102-103: 2-25, 1-14 (Lee)).
20. On June 12, 1992, Nowak faxed a power of attorney to Joy Lee which authorized Jong Ok Lee, Jerry's brother, to act on behalf of MAI in connection with setting up an Indonesian operation. (PX 3).
21. Starting in June 1992, Joy caused MAI to invest over $255,000 of MAI money in the Indonesian operation. (PX 6).
22. In the summer of 1992, Jong Ok Lee set up and ran PTKSS. Jong Ok Lee used money obtained from the sale of Grip Ball to start the Indonesian operation. (1 Tr. 187: 13-16 (Lee)).
23. Jong Ok Lee worked in the Grip Ball business. (1 Tr. 187: 10-12 (Lee)). He was one of the original owners of Puff Pac Production, later renamed Mijong Industries. (5 Tr. 858: 8-25 (Lee)).
24. Joy Lee testified that Jong Ok Lee was the owner of PTKSS and that MAI had some investment in the operation. (5 Tr. 863: 8-13 (Lee)). On a corporate application dated August 5, 1992, MAI is listed as the 95% owner of the Indonesian joint venture, and Jong Ok Lee is listed as a representative of MAI. (PX 5 at pp. 1 & 4).
25. The setup of the Indonesian operation was not documented, but rather was formed pursuant to an oral arrangement. (5 Tr. 857-58: 9-25, 1 (Lee)).
26. On August 20, 1992, Joy requested her office to Federal Express to Nowak three blank checks, documents relating to the establishment of the Indonesian operation, and financial statements relating to the Korean companies. (PX 4).
27. Joy claimed that she had "oral understandings" with her brother-in-law, Jong Ok Lee, that if MAI invested a given amount in the Indonesian operation, he would "give" back his stock in the Indonesian operation to MAI. (5 Tr. 857-58: 9-25, 1 (Lee)).
28. The Lees' attorneys provided advice to them on protecting their assets.
29. On May 29, 1992, L. Michael Rudolph, Esq. provided Keith Nowak, Esq. with a draft memorandum which outlined a plan to insulate the Lees' corporate assets from creditors via corporate structure and organization. (PX 278). The memorandum was produced from MAI's files. (PX 278 at Bates MAI 1120).
30. On September 1, 1992, Dick Ferdinand, a financial consultant, at Merrill, Lynch, wrote to Joy regarding her plans to restructure her companies and to prepare for a public offering. (PX 9). He wrote that she would "be in a much stronger and safer position if a significant portion of [her] personal net worth [was] separate from her holdings in MAI" and suggested that they meet to "plan a strategy" to accomplish this goal. (PX 9).
31. Joy's financial advisors viewed the Korean and Indonesian operations as parts of the Lees' corporate holdings.
32. On October 14, 1992, Merrill Lynch submitted a proposal, which was accepted by Joy on behalf of Grip Toys, Inc., "to conduct a strategic analysis ... for Grip Toys, Inc. and its affiliates Scatch Europe B.V., M.A.I., Ltd. Co., and M.A.I. Indonesia.... to determine the amounts that might be realized through a financial recapitalization involving *1256 a private placement or a public offering of debt or equity securities." (PX 10 at 1).
33. One of the stated objectives was "to determine the valuation of the Company [previously defined as Griptoys, Inc., and its affiliates Scatch Europe B.V., M.A.I., Ltd., Co., and M.A.I. Indonesia as a whole and for its three principal operations (United States, Korea, and Indonesia) individually." (PX 10 at 1) (emphasis added).
34. Joy Lee herself even indicated that the Korean and Indonesian operations were under her control.
35. In the autumn of 1992, Joy created several charts (PX 12, 13A, 13B) which indicated that PTMJ Products (the Indonesian operation) was owned 100% by MAI. The charts also indicate that "Mi Jong" or "Mijong Korea" were affiliated with MAI. "Mi Jong" was owned by a "Lee Family Member." (PX 13A, 13B). Joy affirmed that Jerry's brother started Mi Jong. (1 Tr. 160: 15-16 (Lee)).
36. The accounting firm of Coopers & Lybrand viewed the Korean and Indonesian operations as affiliated with the Lees.
37. In work papers prepared by Coopers & Lybrand on or about November 30, 1992, the firm examined transactions between MAI and "related parties." (PX 146; PX 147). In plaintiff's exhibit 146, Coopers & Lybrand noted that "MAI purchases inventory from the following related parties 1) MAI, Ltd., 2) Mijong Industry Inc. 3) Puff Pac Production Inc." (PX 146) (emphasis added). In plaintiff's exhibit 147, Coopers & Lybrand noted that "MAI purchases inv[entory] from related parties, earns commissions from related parties, and has loans to employees, stockholders and affiliated companies" and that "Joy Lee (only BOD member) approves all material related party transactions." (PX 147).
C. The Value of the Lees' Companies
38. On October 18, 1992, in a memorandum written in Korean to her husband, Joy reported that "according to our financial statement ... 30% of our stock value is approximately $20,000,000 to $35,000,000." Joy also testified that she wrote in PX 11 "we will evaluate Korea, USA, Indonesia or all separately in order to maximize the value of the whole package." (1 Tr. 156: 14-16, 157: 1-13 (Lee)).
39. As of December 1992, MAI was an $80 million business. (2 Tr. 223: 3-8 (Lee)).
40. In one and one-half years, world-wide Grip Toys sales exceeded $84 million. (PX 53)
41. In 1992, the Lees' Korean operation exported over 35% of the Republic of Korea's total toy exports. (2 Tr. 223: 9-17 (Lee)).
42. The success of Grip Toys' sales led to the Lees' accumulation of nearly $30 million in assets in Korea. (3 Tr. 575: 16-20 (Lee)); (PX 15 at p. MAI-844, MAI-845).
43. MAI, Ltd. in Korea also recognized substantial profits. For the six month period ending June 30, 1992, MAI, Ltd. enjoyed net income before taxes of $4.3 million. (PX 15 at MAI 848; PX 144 at pp. 1-4).
44. From February 23, 1992 until December 28, 1992, MAI, Inc. in the United States transferred over $8.9 million to Korea to MAI Ltd., Mantae Co. and PTKSS Indonesia. (PX 57 at 4 & 30; PX 64). These funds transferred to Korea reduced the debt owed to the Korean banks by Jerry Lee and his companies (2 Tr. 261: 1-7 (Lee)) and correspondingly reduced the banks' claim against the collateral securing that debt. (1 Tr. 174-75: 25, 1-11 (Lee)).
45. Joy Lee amassed a personal net worth in the United States, as of November 19, 1992, of $3.2 million. (PX 26 at p. MAI XXXX-XXXX).
46. Joy Lee maintained personal assets in bank accounts in at least one foreign country. She maintained a personal bank account at the Hong Kong Bank in Vancouver, Canada (1 Tr. 87-88: 9-25, 1-3 (Lee)), and she used that account to bring money into the United States to settle a lawsuit. (1 Tr. 90-91: 11-25, 1 (Lee)).
D. This Court's December 1st Decision and Order
47. On December 1, 1992, 828 F.Supp. 1301 the Court issued its Decision and Order requiring the Mantae defendants to make *1257 available sufficient assets to be attached and finding that Paliafito had established a likelihood of proving that the Mantae defendants had engaged in fraud and racketeering. (PX 32).
48. At the end of November 1992, Joy was aware that the Court was about to render this decision. (1 Tr. 187-88: 17-20, 6-23 (Lee)). Also pending was Paliafito's motion for leave to file a second amended counterclaim to add, among other parties, MAI, Ltd. Select Creations, Inc. v. Paliafito America, Inc., 830 F.Supp. at 1215, (referencing the Motion of Paliafito America, Inc. for Leave to File a Second Amended Counterclaim and Third-Party Complaint (filed April 17, 1992)). By the end of November, it was the Lees' plan to close the Korean operation and to move the main source of manufacturing of Grip Toy products to Indonesia. (1 Tr. 188: 19-23 (Lee); PX 23).
E. MAI, Ltd.'s Purported Bankruptcy
49. The Lees claim that on December 26, 1992, MAI, Ltd. went into bankruptcy in Korea. (PX 37; 5 Tr. 891 (Lee)).
50. For the following reasons, the Court finds the Lees' claim to be false.
51. Based on the Declaration of Min Han, submitted in support of Paliafito's First Request for a Determination of Foreign Law on its Contempt Motion, the Court makes the following determinations of foreign law under Rule 44.1 of the Federal Rules of Civil Procedure:
(1) that, under Korean law, an insolvent corporation, or creditors, may wind up the corporation's affairs in one of the following three ways:
(a) liquidation under the Korean Bankruptcy Law (Declaration of Min Han ("Han Dec.") ¶¶ 3-4);
(b) corporate reorganization under the Corporate Reorganization Law (Han Dec. ¶¶ 5-6);
(c) dissolution and liquidation by resolution of shareholders or otherwise in accordance with the Korean Commercial Code (Han Dec. ¶¶ 8-9);
(2) that, under the Korean Civil Procedures Law, the commencement of a bankruptcy or a corporate reorganization proceeding is registered on the company registry on file with the Commercial Recording Office of the District Court in the district where the corporation resides (Han Dec. ¶¶ 4-6);
(3) that, under the Korean Commercial Code, when a corporation is dissolved by a resolution of shareholders, the corporation must register such dissolution on the company registry on file with the Commercial Recording Office of the District Court in the district where the corporation resides (Han Dec. ¶ 9); and
(4) that, under the Korean Civil Procedures Law, a shareholder or a creditor of a corporation may request a certified copy of court records relating to a bankruptcy or a reorganization proceeding commenced on behalf of the corporation.[2] (Han Dec. ¶ 7).
52. As set forth above, if a bankruptcy, a reorganization proceeding, or a voluntary dissolution has indeed been commenced on behalf of MAI, Ltd., the fact of such commencement would be reflected on its company registry, plaintiff's exhibits 16 and 17. It is not. Accordingly, the Court finds that MAI, Ltd. never went into bankruptcy or any other proceeding to liquidate its assets.
53. However, it is possible that MAI Ltd. may have been technically insolvent, though still legally in existence as a "Company in Dormancy." (Declaration of Jin Ouk Kim at 5-7).
F. Creation of MJ Korea as the Lees' Korean Front
54. For the following reasons, the Court concludes that the Lees created and controlled "MJ Korea" as a front for their operations, including MAI, Ltd. in Korea at least through the summer of 1993.
*1258 55. On December 29, 1992, three days after the Lees claim to have put MAI, Ltd. into bankruptcy, MJ Korea was incorporated. (PX 38).
56. According to Joy, in just a few days, people who had worked for Jerry Lee at MAI, Ltd. set up MJ Korea with an investment of about $60,000 and took over an existing Scatch Europe order for hundreds of thousands of sets of Grip Football. (5 Tr. 891-92: 14-25, 1-2 (Lee); 3 Tr. 601: 12-20 (Lee)).
57. Jerry Lee also went to work for MJ Korea and continued to correspond with the Scatch Europe people. (5 Tr. 893: 3-9 (Lee)).
58. Within days after the supposed bankruptcy of MAI, Ltd. and the creation of MJ Korea, the Lees wrote to Scatch Europe to request that payments on Letters of Credit be switched to MJ Korea for games manufactured by Mijong Industries. Thus, on December 31, 1992, Joy sent a letter to Jan Smit at Scatch Europe explaining that "M.A.I. Ltd. will be remained under Chapter 11 (Similar) about 6 months at the most then we will be out of it. I think our plan could have a lot of future benefits if our sales side did not slow down." (PX 40).
59. On January 2, 1993, Jerry sent a letter to Wil Van Bladel at Scatch Europe advising him of MAI, Ltd.'s bankruptcy and the movement of manufacturing to Indonesia. (PX 37).
As you have been informed by Joy, and as we have already explained to you while you were in Korea last month, all the manufacturing facilities under M.A.I. Korea is in the process of being transferred to the facilities in Indonesia. As of December 26, 1992, M.A.I. Korea has decided to file Chapter 11 which in views of others may have either negative or positive implications. (PX 37)
60. Jerry also represented that the production of Grip Football was under Mi Jong Industry's control and that payment should be made to MJ Korea:
[T]he production and export of Grip Football has been completely under Mi Jong Industry's control from the initial stage. Thus, there will be no problem with the production and supply of Grip Football to Scatch Europe BV. Therefore, I would like to request the following amendments be made on L/C No. 8A/9250348: ...
The beneficiary of the L/C [should be switched] from M.A.I., Ltd. to M.J. Korea, Ltd.
(PX 37) (emphasis added).
61. When confronted with Jerry Lee's statement that Grip Football was under Mijong Industries' control, not MJ Korea's control, Joy stated: "[Y]ou sometimes have to say things to make the whole thing work." (5 Tr. 897: 14-15 (Lee)).
62. Plaintiff's exhibits 37 and 42, which demonstrate that Jerry conducted business on behalf of MJ Korea in January and February of 1993, contradict Joy's claim that he had first become employed by MJ Korea when the Hans bought MJ Korea in April 1993. (4 Tr. 743: 5-15 (Lee)).
63. On or around February 1993, Ray George, MAI's vice president for sales, (1 Tr. 167: 7-8 (Lee), drafted a memorandum which stated:
MAI is vertical in that it controls its own manufacturing with plants in Korea and Indonesia. This is not true for many toy companies who depend on outside sources for manufacturing and are thus at the mercy of these outside manufacturers.
(PX 14 at 4) (emphasis added).
64. At the time Ray George's memorandum (PX 14) was drafted, sometime after the February 1993 Toy Fair (5 Tr. 875-76 (Lee)), MAI, Ltd. had purportedly been "bankrupt" for nearly two months and only MJ Korea remained in business.
65. In February 1993, Jerry conducted business on behalf of MJ Korea and MAI, Ltd., entities that shared the same telephone numberhis. On February 8, 1993, Jacqueline Jean, an MJ Korea employee, wrote a letter to Pekka Immonen on M.A.I., Ltd. letterhead. Ms. Jean wrote, "I was informed last weekend from our head quarter in L.A. that we M.A.I., Ltd. had just given the exclusive right of European Market to a distributor *1259 and exporter `Scatch Europe' in Netherland." (PX 41).
66. The February 8th letter, written on M.A.I., Ltd. letterhead, lists the telephone numbers for M.A.I., Ltd. to be 582-0551 and 582-0553. (PX 41).
67. On February 12, 1993, Jerry wrote a letter to Wil Van Bladel at Scatch Europe on MJ Korea letterhead. (PX 42) The letterhead for MJ Korea lists telephone numbers 582-0551 and 582-0553, the same telephone numbers which M.A.I., Ltd. listed on its letterhead on plaintiff's exhibit 41. The number 582-0551 was also Jerry's home telephone number. (1 Tr. 210: 3-15 (Lee)).
68. In order to explain how Jerry's home telephone number could be the same as MJ Korea's, Joy claimed at the hearing on December 13, 1993, that Jerry "moved" M.J. Korea's telephone number, 582-0551, to his home after M.J. Korea moved to bigger offices. (1 Tr. 210-11: 12-25, 1-5 (Lee)). She affirmed that Jerry was then using this telephone number as his home telephone number. (1 Tr. 212: 10-12 (Lee)).
69. Later, at the hearing on January 5, 1994, she changed her testimony. Joy testified that MJ Korea's first office was in a residential apartment that Jerry had occupied:
Actually, I clearly found out afterward because I wasn't sure what happened, was between, and so I called and found out they had a small office, MJ Korea had small office, very beginning, which was not an office, but [in] Korea there's really [no] rule that residential area cannot be used for office, there's no rule for that. So the office of MJ very initially was in an apartment. So MJ had got the phone number from the phone company of 582-0551. At the time Jerry didn't have a place to stay, because the real estate where he used to stay was collateralized to the bank, so they had to kick him out. So he stayed in one of the rooms of the MJ's office, which was an apartment, so MJ moved out from this apartment to office later, and Jerry stayed there for longer than MJ moved out.
(5 Tr. 900: 4-21 (Lee)).
70. Although Joy claimed that 582-0551 was "never" MAI, Ltd.'s phone number (5 Tr. 901: 6-9 (Lee)), an MAI, Ltd. fax (PX 41) shows otherwise.
71. The Korea Exchange Bank ("KEB"), from whom the Lees had obtained financing, also treated MJ Korea as an operation controlled by and affiliated with the Lees. The Korea Exchange Bank acted as the agent for all of the other Korean banks to which MAI and the Lees owed money. (2 Tr. 232: 3-6 (Lee)).
72. On January 13, 1993, the manager of the Korea Exchange Bank's Nonhyun-dong South Branch faxed a letter to "Miryoung Song" (i.e., Joy Lee), enclosing a UCC security agreement to be signed. (PX 46). The KEB's branch manager also linked future financing to MJ Korea to payment of the MAI, Ltd. debt:
I would like to request your cooperation to pay back the credit you have with our bank before the end of January 1993, either by selling out the items in stock in the U.S. ... or by completing the sales of the company which has opened the stand by L/Cs.
* * * * * *
As you already know, not only our branch is in the very difficult situations but also in order for us to offer financial support for the newly established company M.J. Trading Co., Ltd., the delayed payment for the dishonored credit by MAI Korea should be cleared off as soon as possible.
(PX 46) (emphasis added).
73. On January 20, 1993, Joy signed a security agreement on behalf of MAI pledging all of MAI's assets to secure obligations to the Korea Exchange Bank, Jerry, Mijong Industries, Inc., and MAI, Ltd. (PX 43). The Korean Exchange Bank had requested the law firm of Kellow & George to prepare the security agreement documents. (PX 45). (Joy and Jerry had personally guaranteed the "documents upon acceptance" ("D/A") obligations to the Korean banks. (2 Tr. 228: 4-9 (Lee))).
74. Thereafter, the Korea Exchange Bank did, in fact, provide D/A financing to *1260 MJ Korea. (5 Tr. 904-06: 1-25, 1-25, 1-2 (Lee)).
G. MJ Korea Sold to Han Family
75. This Court has already found that "[o]n April 21, 1993 the Hans purchased eighty-five percent of the shares of MJ Korea. A fifteen percent interest was retained by Jong Ok Choi, a member of the original shareholder group." Select Creations, Inc. v. Paliafito America, Inc., 852 F.Supp. 740, 748-49 (E.D.Wis.1994) (citations to record omitted). (See also PX 38, 39; 3 Tr. 606: 17-607: 16; 5 Tr. 1028: 14-19; 7 Tr.1384: 8-1387: 8 (Wilcox)).
76. The Court further concluded that Min Suk Han was elected chairman and representative director of MJ Korea, and that, "[t]hereafter, the Hans, through MJ Korea, ostensibly conducted the Grip Toys business." Select, 852 F.Supp. at 749 (citations to record omitted). (See also PX 38, 39; 7 Tr. 1371: 4-11 (Wilcox)).
77. Mr. Min Suk Han is a Korean business man, approximately 72 years of age. (7 Tr. 1407: 1 (Wilcox, J. Lee)). He is no relation by blood or marriage to Joy or Jerry Lee. (3 Tr. 607: 3-4; 8 Tr. 1599: 7-10 (Wilcox, J. Lee)).
78. Ms. Yang Ok Han is also a Korean national. She is the daughter of Min Suk Han, and a director of MJ Korea (PX 38, 39). She is not a relation of the Lees. (8 Tr. 1599: 7-10).
79. Despite the sale of the MJ Korea stock to the Hans, the Lees continued to exercise control over the operations of MJ Korea, at least through the summer of 1993. See Select, 852 F.Supp. at 749-50. (See also FOF 158; 159, infra.)
80. Moreover, on July 14, 1993, Russell Clementson, an attorney with the United States Trustee's Office, met with Herbert Katz and Alison Zirn from Stroock & Stroock & Lavan, the law firm representing MAI Inc. in bankruptcy. (5 Tr. 1041-42: 16-18, 15-16 (Clementson)). Mr. Clementson asked what the relationship of MJ Korea to MAI was. (5 Tr. 1042: 8-12 (Clementson)). Mr. Clementson testified that Katz and Zirn told him they weren't certain who owned or controlled MJ Korea and that they were investigating. (5 Tr. 1042: 17-21 (Clementson)).
H. The February 19, 1993 Writ and MAI's Bankruptcy
81. On February 16, 1993, the Court heard argument on the issue of how much of the Mantae defendants' assets were to be attached. (PX 60). Before Paliafito brought the matter to the Court's attention on February 16, the Lees had never disclosed that, on December 31, 1992, Joy had given the Lieberman & Nowak law firm a security agreement in MAI's inventory and receivables. (PX 60 at 29-30).
82. On February 18, 1993, Joy submitted a declaration to the Court promising not to pledge MAI assets until such time as the Court determined the proper amount of the attachment. (PX 215). She failed to disclose that one month earlier Joy had already pledged all of MAI's assets to the Korean Exchange Bank, her husband, Mijong Industries and MAI, Ltd. (2 Tr. 330-31: 20-25, 1-7 (Lee); PX 43; PX 60 at 71, 73-74).
83. On February 19, 1993, the Court issued the First Supplemental Writ of Attachment, Preliminary Injunction, and Appointment of a Receiver which, in part, required the Mantae defendants to deposit $8 million with the Receiver. (PX 61).
84. On February 22, 1993, MAI, Inc. filed a Chapter 11 bankruptcy petition, prepared and signed by Stroock & Stroock & Lavan ("Stroock"). (PX 63; 68).
85. MAI had been referred to Stroock on January 12, 1993 by letter from James Lee of DeBro & Lee to Herbert Katz of Stroock. (PX 44). James Lee had written to Katz that MAI was interested in filing for Chapter 11 so that the Lees could sell MAI's assets free and clear of liens. He also had noted that MAI had a firm offer for its assets for $20 million. (PX 44).
86. On February 23, 1993, Ray George wrote a memorandum to MAI's sales representatives explaining why MAI had filed a Chapter 11 petition: "[D]ue to the judge's order from Wisconsin in regards to the MAI-Paliafito case, in order to set aside the order from the judge and to continue business as *1261 usual, MAI filed for Chapter 11 protection on February 22, 1993." (PX 73).
87. John Waldron also wrote a memorandum to MAI's office staff for Joy explaining the purpose of MAI's bankruptcy filing: "MAI and Mrs. Lee intend to be on top again." (PX 74).
88. After the bankruptcy petition was filed, one of the very first things that Joy wanted Stroock to do was to look into whether the bankruptcy stay could be extended to cover her and her husband. (2 Tr. 263: 20-24 (Lee)). That was because Joy knew that Paliafito was pursuing her and her husband in court in Wisconsin. (2 Tr. 267: 1-3 (Lee)).
II. THE FIRST ALLEGED CONTEMPT: JOY LEE'S VIOLATION OF THE COURT'S JANUARY 24, 1992 ORDER
89. On January 24, 1992, the Court entered an order providing, in pertinent part, that "[t]he parties or their agents, attorneys, and others under their direction, shall not destroy or dispense with documents until further order of the court." (PX 75).
90. Joy received the Court's January 24, 1992 Order from Nowak. (2 Tr. 331-32: 24-25, 1 (Lee)). Nowak explained the Order to her and she understood it and circulated it among MAI employees. (2 Tr. 332-33: 22-25, 1-4 (Lee)).
91. On February 24, 1993, two days after it filed its bankruptcy petition, MAI circulated a memorandum among its employees which stated:
EFFECTIVE THIS DATE, ALL DOCUMENTS (letters, faxes, etc ...) ARE NOT TO BE THROWN IN THE TRASH. THEY ARE TO BE PUT INTO A BOX WHICH WILL BE PLACED BY BOTH FAX MACHINES. AT THE END OF EACH DAY, DANNY WILL GATHER ALL PAPERS FOR SHREDDING. THIS IS TO BE DONE SO THAT NO DOCUMENTS FALL INTO THE WRONG HANDS. PLEASE FOLLOW THESE INSTRUCTIONS, INITIAL THE BOTTOM BY YOUR NAME AND RETURN IT TO ME.
(PX 76).
92. The "wrong hands" referred to in the memorandum were Paliafito's. (2 Tr. 333-34: 23-25, 1 (Lee)).
93. Joy and other MAI employees initialed the memorandum. (2 Tr. 333, 334-35: 13-14, 2-25, 1-12 (Lee); PX 76).
94. Pursuant to the memo, documents were destroyed for "security reasons," (2 Tr. 335: 13-15 (Lee)), including documents Joy thought were protected by the lawyer-client privilege. (6 Tr. 1213-14: 14-25, 1-19 (Wilcox)).
95. MAI did not keep a record of documents that were shredded, and there was document shredding going on at times when Joy was not there to see it. (2 Tr. 336-37: 18-25, 1-2 (Lee)). According to Joy, "nobody can know" which documents were or were not shredded. (2 Tr. 342: 9-16 (Lee)).
96. The shredding continued for five or six weeks, or until about April 3, 1993, when Wilcox unplugged the shredder after becoming MAI's chief operating officer. (6 Tr. 1210-12: 19-25, 1-25, 1-7 (Wilcox); 4 Tr. 811: 4-9 (Lee)).
IV. CONSIDERATION AND ISSUANCE OF THE APRIL 7TH WRIT
A. The Lees, Stroock, Nowak and Loeffler Confer
97. In early March 1993, Paliafito circulated its proposed First Supplemental Writ. (PX 81).
98. On March 4, 1993, Arnold Quittner at Stroock wrote a letter to Joy, with a copy to Nowak, reviewing the proposed First Supplemental Writ. (PX 81). Quittner wrote that Joy's stock in MAI was not a marketable security that the receiver could take into possession without violating the automatic stay:
We have also taken the position that the stock in MAI owned by Joy Lee is not a marketable security, and the attempt by the receiver to take it into custody would be an attempt to exercise control over *1262 MAI, which would be a violation of Bankruptcy Code § 362, the automatic stay.
(PX 81).
99. Quittner concluded that MAI need not file an opposition to the proposed supplemental writ. (PX 81). Joy read Quittner's letter and discussed it with him. (2 Tr. 353: 21-22 (Lee)).
100. Joy also requested Stroock to give her legal advice with respect to the disposition of her personal assets. (5 Tr. 912: 3-9 (Lee)). On March 5, 1993, Alison Zirn at Stroock faxed a letter to Joy advising her that the February 19th Writ did not "appear to restrict [Joy's] ability to withdraw and use any personal funds or assets, ..." but did not attempt to "conclusively resolve this issue." (PX 226).
101. As of March 4, 1993, Lieberman & Nowak had filed a motion to withdraw as counsel for MAI and the Lees. (PX 72). On March 8, 1993, Nowak sent a memorandum to David Loeffler setting forth his comments on the proposed First Supplemental Writ. (PX 229). Nowak also faxed a copy of Quittner's March 4 letter to Joy (PX 81) to Loeffler. (PX 230). (8 Tr. 1660-61: 23-25, 1-3 (Loeffler)).
102. Nowak noted that "Arnold Quittner is filing a Section 105 Petition with the bankruptcy Court that would stay the action with respect to Joy and may attempt the same thing with respect to Jerry." (PX 229 at 1 ¶ 2). This petition was never filed. (8 Tr. 1659: 2-15 (Loeffler)).
103. In paragraph 4, Nowak commented that Joy's MAI stock "cannot be remotely considered as a `marketable security.' This should be pointed out to the Court." (PX 229 at 3 ¶ 4).
104. In paragraph 10, Nowak comments that subparagraphs (c) and (d) of paragraph 15 must be clarified to permit a contemplated "new business relationship with a Mr. Wilcox." Nowak suggests that "[t]his should be discussed with Arnold." (PX 229 at 4 ¶ 10).
105. Loeffler never discussed the new business relationship nor a clarification of 15(c) or (d) with Quittner. (8 Tr. 1665: 7-13 (Loeffler)).
106. In paragraph 11, Nowak writes that, with respect to subparagraphs (e) and (f) of paragraph 15 of the proposed First Supplemental Writ, "MAI, Ltd. is not a defendant and thus, it appears should not be bound by this restriction." (PX 229 at 4 ¶ 11).
107. Neither Nowak nor Loeffler ever sought a modification of ¶ 15(e) and (f). (8 Tr. 1668: 15-19 (Loeffler)).
108. On March 12, 1993, David Loeffler, on behalf of the Lees, filed the Lees' response to the proposed supplemental writ. (PX 82). In pertinent part, Loeffler requested "that paragraph 15(a) at pages 11 and 12 of the proposed Order be amended to explicitly provide that Miryoung Lee may allocate portions of her salary ... to the payment of her attorneys' fees." (PX 82).
109. Loeffler never requested the Court to modify paragraph 15(d) nor to modify the proposed writ to allow Joy to sell her MAI stock to pay attorneys' fees. (PX 82, 101, 102, 285).
110. Loeffler knew at the time that he could seek a modification or clarification of the First Supplemental Writ at any time if a good reason existed. (8 Tr. 1674-75: 18-25, 1-5 (Loeffler)).
111. The Mantae defendants joined in Loeffler's response. (PX 231).
B. Entry and Service of the First Supplemental Writ
112. On April 7, 1993, the Court entered the First Supplemental Writ of Attachment, Preliminary Injunction, and Appointment of a Receiver ("First Supplemental Writ"). (PX 100).
113. By its terms, the injunctive provisions of the Writ applied to "[t]he Mantae defendants, and any person or entity in active concert or participation with them who receives actual notice of this Order by personal service or otherwise." (PX 100, ¶ 15).
114. Paragraph 1 of the First Supplemental Writ defined "the Mantae defendants" as Mantae Company Limited (a/k/a MAI, Ltd., Puff Pac productions, Ltd., Best General Merchandise), Miryoung ("Joy") Lee, and Jong Sik ("Jerrold") Lee. (PX 100, ¶ 1).
*1263 115. The First Supplemental Writ was served upon MAI, Inc. and its bankruptcy attorneys, Stroock. (6 Tr. 1215-16: 1-25, 1-15 (Wilcox)).
116. Joy received and read the First Supplemental Writ on or about April 7, 1993. (2 Tr. 369: 11-13 (Lee)).
117. David Loeffler also received and read the First Supplemental Writ on or about April 7, 1993. (8 Tr. 1675-76: 6-25, 1-2 (Loeffler)).
V. THE SECOND ALLEGED CONTEMPT: JOY LEE OPENS A NEW BANK ACCOUNT
118. Paragraph 15(b) of the First Supplemental Writ enjoined Joy Lee "from establishing any new bank, money market, brokerage, or other accounts created for the deposit and/or retention of assets." (PX 100, ¶ 15(b)).
119. In May 1993, after the First Supplemental Writ was entered, Joy closed her personal bank account and established a joint bank account with her nephew at a different bank. (2 Tr. 394-96: 24-25, 1-25, 1-2; 4 Tr. 735: 3-5 (Lee)).
120. Joy read subparagraph (b) of paragraph 15 of the Writ before she opened up the joint bank account with her nephew. (2 Tr. 396: 20-22 (Lee)).
121. Joy never notified anyone that she had opened up a bank account with her nephew, Danny Kim. (5 Tr. 910: 2-10 (Lee)).
VI. THE THIRD ALLEGED CONTEMPT: VIOLATIONS OF SUBPARAGRAPHS (e) AND (f) OF PARAGRAPH 15 OF THE FIRST SUPPLEMENTAL WRIT BY DOING BUSINESS WITH THE LEE-CONTROLLED "FRONTS"
122. Paragraphs 15(e) and 15(f) of the First Supplemental Writ provide:
The Mantae defendants, and any person or entity in active concert or participation with them who receives actual notice of this Order by personal service or otherwise, are enjoined:
* * * * * *
(e) from directing customers to pay anyone other than the Receiver for amounts due the Mantae defendants;
(f) from shipping any product directly, or indirectly, to customers in the United States without the permission and supervision of the Receiver, or its agent. * * *
(PX 100 ¶ 15 (emphasis added)).
A. Stroock and MAI See MJ and PTKSS as Fronts
123. MAI and its counsel, Stroock, apparently recognized that, because PTKSS and MJ Korea were Lee-controlled companies, the First Supplemental Writ precluded MAI from doing business with them. Thus, on April 19, 1993, Stroock, on behalf of MAI, filed a brief regarding the application of § 105 with the Court. In it, MAI argued that "irreparable harm will result to MAI ... if MAI's access to its affiliated suppliers, which may include third-party defendants, is restricted as contemplated by this Court's previous orders." (PX 201 at 7).
124. MAI requested that the Court "lift the injunction to the extent it interferes with MAI's supply sources, prohibits any of the Mantae Defendants from sending goods to MAI, or prohibits MAI from paying for any of such purchases in the ordinary course of business." (PX 201 at 8-9).
B. Wilcox Views MJ Korea and PTKSS as Affiliates of the Lees
125. Wilcox also recognized that, even though MAI, Ltd. had supposedly been "bankrupt" for months, it in fact continued as MAI's supplier. (PX 92; PX 93; PX 94; PX 279 at 5).
126. On April 26, 1993, at 9:42 a.m., Wilcox faxed a proposal to Joy for appointing an exclusive distributor to purchase MAI. (PX 283). The proposal was precipitated by MAI's current position in both the marketplace and the current financial condition of the company considering the "Paliafetto [sic]" lawsuit. (PX 283 at 2).
127. Under the proposal, the unnamed distributor would buy all of MAI's inventory and patents, would maintain a distribution facility in the United States, and could "purchase *1264 goods from MAI, Ltd. per contract to be signed...." (PX 283 at 2) (emphasis added). In addition, the distributor would be assigned the worldwide rights to Grip Ball. (PX 283).
128. That same day, approximately an hour and a half later, Wilcox faxed an identical proposal to Joy. However, in the second version, Wilcox deleted "MAI, Ltd." in paragraph 1(D) and replaced it with "overseas." (PX 282 at 2; 8 Tr. 1638-39: 22-25, 1-11 (Wilcox)). Additionally, Wilcox filled in Vincent Jung as the new distributor under the proposal. (PX 282).
129. Wilcox testified that this proposal was never finalized or effectuated. (8 Tr. 1627-28: 16-14 (Wilcox)).
130. Wilcox's "M.S. Han" file (PX 151) contains a letter written to Wilcox by Yang Ok Han. She writes:
I received a letter from Joy mentioning your concerns about M.J Korea & our relationship between Jerry & my father & me.
As you know, I do not have much experience in business. I'm trying to learn as quick as I can and at the same time to provide answers for Jerry & my father isn't that easy.
But I can tell you one thing that we are really planning to continue our relationship until we reach our goal successfully.
(PX 151 at 276) (emphasis added).
131. Documents contained in Wilcox's "M.S. Han" file (PX 151) contain a letter from Yang Ok Han indicating that it was faxed from MAI, Ltd. (PX 151 at W0000278-80). PX 114, 110, and other exhibits, purportedly sent by MJ Korea, also all indicate MAI, Ltd. as the sender in the facsimile traffic.
132. When Wilcox questioned Joy about this anomaly after the September depositions, Wilcox could not recall Joy giving any explanation. (2 Tr. 450-51: 17-25, 1-11 (Lee)). The respondents contend that this can be explained by the fact that MAI Ltd. sold its fax machines to MJ Korea, and that the configurations on the machines were not changed. (2 Tr. 452: 5-12 (Lee)). We find this explanation incredible.
133. Wilcox initially viewed Joy as a necessary link to MJ Korea. (6 Tr. 1237: 7-9 (Wilcox)). In a memorandum prepared by Wilcox related to a August 27th strategy meeting at Stroock's offices in Los Angeles (PX 137), Wilcox expressed the view that "without Joy's involvement no financing is available from M.J." (PX 137 at 3).
134. After Paliafito's counsel gave notice to MAI and Wilcox during the September 27, 1993 hearing in the Bankruptcy Court that MAI was running into the Court's injunction, Wilcox and MAI stopped sending money to or purchasing product from overseas suppliers, including MJ Korea or the Indonesian operation. (6 Tr. 1233-34: 2-25, 1-4 (Wilcox)).
C. MAI Inc.'s Lawyers Viewed MJ Korea and PTKSS as Affiliates of the Lees
135. On April 27, 1993, this Court held a status hearing. (PX 103).
136. At the hearing, Quittner appeared for MAI and requested the Court to stay the action for 60 days to enable MAI to seek a § 105 injunction to expand the scope of the § 362 automatic stay to cover the Lees and the companies they control. (PX 102 at 32-33).
137. Quittner further argued that the § 105 relief was necessary because "Joy Lee has got to be able ... to design new product, to making sales, to getting production done in Korea wherever else it is done to get the product over here...." (PX 102 at 42-43) (emphasis added).
138. The Court granted Quittner's request and stayed the Wisconsin action for 60 days. (PX 103 at 2, ¶ 2).
139. Quittner never sought § 105 relief from the Bankruptcy Court during the 60 day stay period.
140. The Court never granted MAI's April 21st request to lift the injunction "to the extent it interfere[d] with MAI's supply sources, prohibite[d] any of the Mantae Defendants from sending goods to MAI, or prohibite[d] MAI from paying for any of such *1265 purchases in the ordinary course of business." (PX 201 at 8-9; PX 103).
D. MAI Inc. Officials and Lawyers Meet with Bern Galvin
141. In late April 1993, Bern Galvin was retained by the committee of unsecured creditors in the MAI bankruptcy to act as a business consultant. (5 Tr. 1045: 21-23 (Galvin)).
142. On May 24, 1993, Bern Galvin met with Wilcox, Quittner, Zirn, Stuart Koenig, counsel for the unsecured creditors committee, and an unnamed representative for the unsecured creditors at Stroock's offices. (PX 148; 5 Tr. 1047-48: 25, 1-12 (Galvin)). Quittner, Zirn, and Wilcox were running the meeting. (5 Tr. 1049-50: 22-25, 1-2 (Galvin)).
143. At this meeting, Galvin took notes (PX 148). (5 Tr. 1047: 19-24 (Galvin)). In his notes about MAI, Galvin wrote "main product made in Korea by related companies by MAI, Ltd." (5 Tr. 1048-49: 24-25, 1-3 (Galvin); PX 148 (emphasis added)).
E. MAI's Frequent Calls to Korea
144. After it relocated to West Memphis, Arkansas, MAI placed 56 telephone calls to the Korean telephone numbers 582-0551 and 582-0553 through July 2, 1993. (PX 156 at 1-7).
145. As set forth above, Joy identified the Korean telephone number 582-0551 as both Jerry's home telephone number and the number of MJ Korea. (FF ¶¶ 76-77). Additionally, on February 12, 1993, Jerry faxed a letter to Scatch Europe under MJ Korea letterhead listing MJ Korea's telephone numbers to be 582-0551 and 582-0553. (FF ¶ PX 42). On February 8, 1993, Jacqueline Jean faxed a letter (PX 41) to Scatch Europe under MAI, Ltd. letterhead listing MJ Korea's telephone numbers to be 582-0551 and 582-0553. (PX 42).
F. Joy Resigns from MAI, Inc.
146. On May 28, 1993, Paliafito filed a motion to convert the MAI bankruptcy to Chapter 7 or, in the alternative, to appoint a chapter 11 trustee. (PX 108).
147. The same day, Joy resigned as president and director of MAI (PX 109; 2 Tr. 404: 8-10 (Lee)). One of the reasons for her resignation was so that MAI and its lawyers could go into the bankruptcy court to tell Judge Greenwald, in opposition to Paliafito's motion to convert, that Joy was no longer part of MAI management. (6 Tr. 1125: 9-17 (Wilcox)).
148. On May 28, 1993, Wilcox became the chief executive officer, president, and secretary of MAI (6 Tr. 1108: 6-12 (Wilcox)), although he never actually went on the payroll of MAI. (6 Tr. 1108: 17-19 (Wilcox)).
149. From then until December, Wilcox was in control of the management of MAI. (6 Tr. 1125-26: 25, 1-2 (Wilcox)).
150. After July 1993, MAI had only one employeeJoy Leeon MAI's books and records. (6 Tr. 1125: 3-8 (Wilcox)).
G. Jerry Proposes Creation of an Agent or "Front" Company
151. On June 2, 1993, Jerry Lee faxed a Korean language letter on MAI, Ltd. stationery. (PX 110). Paliafito presented evidence that pertinent portions of PX 110 are translated from Korean to English, as follows:
1. We open a STANDBY L/C for US $2,000,000 to M.J. USA BRANCH. M.J. USA finances a front company by getting a cash loan of US $2,000,000 from the Korea Exchange Bank, L.A. Branch. The front company buys all the MAI items in stock.
2. At the same time, we get the purchasing orders of minimum US $2,000,000 from K-Mart and TARGET and make deliveries as quickly as we can.... Then, we pay US $2,000,000 back to the Korea Exchange Bank, L.A. Branch with the money from the above mentioned sales.
* * * * * *
4. As such, if we recover US $12,000,000 (regular price) by selling MAI items in stock, i.e. worth US $12,000,000 adding various extras to them, then our business would be a successful one. The entire money earned in these sales may be spent in the U.S. (One exception, I have to use *1266 about US $2,000,000 to take care of personal business.)
* * * * * *
6. M.J. Korea, Ltd. will transfer the STANDBY L/C of US $2,000,000 to M.J. USA Branch. And I will receive US $1,000,000 in advance to take care of my personal business. Therefore, M.J. USA will be taking over the entire items in stock for the total amount of US $3,000,000.
(PX 110).
152. Joy Lee claimed that the phrase "front company" in paragraph one was not a correct translation, but that the term should be "agent" company or "representative" company. (2 Tr. 418, 423: 5-6, 3-4 (Lee)).
153. While the dictionary definition for the contested term ("Dae Ri In Ho Sa") is "agent" or "representative," the term may also carry the connotation of a "front company," depending upon the context and the writer's intent. (3 Tr. 460-62: 10-25, 1-16, 7-25 (Interpreter Gras); PX 217).
154. The totality of the evidence, including the circumstances surrounding the transmission of PX 110 from Jerry to Joy, leads us to conclude that Jerry intended this term to mean the equivalent of a front company.
155. Joy testified, and the in-court translators agreed, that the term "personal business" in paragraphs 4 and 6 was not a correct translation. Instead, she testified that "personal problem" should be substituted for "personal business." (3 Tr. 468: 14-22 (Lee); PX 218; PX 219).
156. Joy testified that it was Jerry's plan, as indicated in PX 110, to purchase all of MAI's inventory at below market price. (3 Tr. 492-93: 14-25, 1-3 (Lee)).
H. The Appearance of ConPro and MJ USA Branch
157. On June 8, 1993, Joy, on behalf of ConPro, Inc., signed two D/A Contract Notes for the purchase of $40,320 in Grip Footballs (PX 117) and $18,240 in Hit 'N Grip (PX 220). The D/A Contract Notes list ConPro's address as 706 Royal Avenue, Memphis, Tennessee. (PX 117; PX 220). The D/A Contract Notes indicate that they were faxed from MAI, Ltd. (PX 117; PX 220).
158. On June 8, 1993, Daniel Kim, who worked for both MAI and MJ Korea (2 Tr. 439: 11-20 (Lee)), sent a fax (PX 114) to Joy on MJ Korea letterhead. In it, Mr. Kim stated: "President Lee has instructed me to tell you to arrange with DeBro & Lee not to send INVOICES to the Korea Exchange Bank from now forward." (PX 114) (emphasis added).
159. "President Lee" referred to in PX 114 refers to Jerry. (2 Tr. 442: 13-16 (Lee)).
160. On an Approval of Establishment for Overseas Branch filed on June 9, 1993, MJ Korea established its "MJ USA Branch" at APAK Packaging, 706 Royal Avenue, Memphis, Tennessee. (PX 124).
161. Yang Ok Han was appointed branch manager of MJ USA branch. She traveled to the United States and met with Joy and banks. She also discussed purchasing Joy's MAI stock. (4 Tr. 745-46: 6-25, 1-7 (Lee)).
I. MAI Money was Sent Overseas
162. On May 28, 1993 and August 3, 1993, MAI Inc. transferred funds in the amount of approximately $29,000 to PT Kartika Semesta, the Indonesian operation. (PX 176; 7 Tr. 1335: 12-17 (Wilcox)).
163. After April 7, 1993, MAI Inc. transferred funds in the approximate amount of $341,500 to MJ Korea. (7 Tr. 1335-36: 18-25, 1-19 (Wilcox)).
164. Based upon a 5% commission "credit" which MAI received from MJ Korea, Wilcox estimated that MJ Korea received another $270,000 from MAI's international customers for Grip Ball sales. (7 Tr. 1340-41: 9-25, 1-10 (Wilcox)).
165. In a 1993-1994 International Sales Forecast for Grip Toys contained in Wilcox's "Joy" file faxed to Wilcox on August 12, 1993, international sales for Grip Ball-related products was forecasted to be almost $2 million in 1993. (PX 150 at 484).
166. Wilcox put Joy in charge of international sales. (7 Tr. 1343: 2-4 (Wilcox)). Under the MAI system then in place, it was *1267 entirely possible that Joy could have directed customers outside the United States to pay MJ Korea directly and Wilcox would not know anything about it. (7 Tr. 1343: 5-11 (Wilcox)).
VII. THE FOURTH ALLEGED CONTEMPT: JOY LEE'S SALE OF MAI STOCK.
A. The Respondents' Knowledge of the Court's Order
167. Soon after the First Supplemental Writ was entered, Joy Lee and David Loeffler each independently read paragraph 15(d), the subparagraph preventing her from changing her ownership interest in any entity involved in the "manufacture, exportation, importation, distribution or sale of the Grip Ball game." (PX 100; 3 Tr. 532: 18-20 (Lee); 8 Tr. 1675-76: 21-25, 1-2 (Loeffler)).
168. At the time of the First Supplemental Writ and thereafter, MAI was involved in the "importation, distribution or sale of the Grip Ball game" as described in subparagraph (d) of paragraph 15 of the First Supplemental Writ. (PX 32; 3 Tr. 532: 21-24 (Lee)); 6 Tr. 1218-19: 25, 1-5 (Wilcox).
169. By April 15, 1993, Stroock was looking into "issues of control of debtor [i.e. MAI Inc.] stock." (PX 70 at 34, entry 8).
170. Loeffler knew of Stroock's efforts. He was "sure" that, prior to the April 27th hearing before this Court, Stroock was looking into "the question of ownership and control of MAI stock." He also was "sure" that Stroock sent him memoranda on this issue. (9 Tr. 1808-09: 21-25, 1 (Loeffler)).
171. April 15, 1993 came and went without any compliance by the Lees or their enterprises with the requirement that they post $8 million with the receiver, and the respondents all knew this. (PX 102 at 4).
172. The respondents were on notice that the First Supplemental Writ provided that non-compliance could result in the entry of judgment. (PX 100, ¶ 17; PX 102 at 4). On April 19, 1993, they knew that Paliafito had moved for entry of judgment. (PX 102, 103).
173. On April 21, 1993, Joy faxed a letter (PX 235) to Quittner stating "I never want to see another 204 pages of opinion from California court. Now is the time to show that your Law Firm [Stroock] can bite Skadden and Springer's nonsense and Arnold will not put up with such nonsense." (PX 235).
174. According to Joy, nothing less than her and her family's ownership and control of MAI were at stake:
I am totally depending on your success. Remember me and my family put every possible efforts and sweat into this company. We just can not give away."
(PX 235 at 2 (emphasis added)).
175. On April 26, Joy faxed to Loeffler a copy of her memorandum to Quittner. (PX 235 at 1).
176. The same day Loeffler filed a motion to reconsider portions of the First Supplemental Writ. In it, Loeffler requested the Court to reconsider "portions of paragraphs 15(a) and paragraph 17" to permit the Lees "to spend current income not attached to compensate their defense attorneys on a pay-as-you-go basis." (PX 101 at 1 & 3).
177. Loeffler never requested the Court to modify subparagraph 15(d) nor to modify the First Supplemental Writ to allow Joy to sell her MAI stock, or any other asset, to pay attorneys' fees. (PX 101).
B. The April 27 Status Conference
178. On April 27, the Court held a status hearing at which, among other things, Paliafito's counsel informed the Court that, once the Court entered judgment against the Lees, Paliafito intended to execute its judgment against the MAI stock owned by Joy. (PX 102 at 66-67).
179. At the hearing, Loeffler also reiterated his request that the Court modify ¶ 15(a) of the First Supplemental Writ to permit the Lees to pay their attorneys on a "pay as you go" basis. (PX 102 at 10 (lines 14-17), 59 (lines 20-24), 61 (lines 18-20), 71 (lines 10-13)).
180. Loeffler was silent on the question of whether Joy could sell her stock, and he made no mention, much less a request to modify, Paragraph 15(d) or any other provision to let Joy sell her stock, to pay attorneys' *1268 fees or for any other purpose. (PX 102).
181. On April 27, 1993, the Court issued a letter ruling reflecting its rulings made at the status hearing. The Court modified only paragraph 15(a), leaving the others intact and unchanged:
Third, the Court ordered that paragraph 15(a) of the First Supplemental Writ of Attachment, Preliminary Injunction, and Appointment of a Receiver filed April 7, 1993 be amended by replacing the language reading "provided however [sic] that such expense [sic] shall not be construed to include payment for attorneys' fees" with "provided, however, that such expenses shall be construed to include payment for necessary and reasonable attorneys' fees."
(PX 103 at 2 ¶ 3). The Court also stayed proceedings for 60 days, including consideration of Paliafito's motion for entry of judgment. (PX 103).
C. Paliafito Moves to Oust the Lees from MAI
182. On May 28, 1993, the same day that Paliafito filed its motion to convert the bankruptcy to Chapter 7 (Findings of Fact "FF" ¶ 148), Joy tendered her Stroock-drafted "resignation" and appointed Ray George sole director of MAI and Wilcox president and secretary. (PX 109; 2 Tr. 404: 5-10 (Lee)).
183. She also announced her intention to put her MAI stock in a voting trust to be voted by a third person. (PX 109). This also was Stroock's idea (2 Tr. 405: 5-7 (Lee)), and her promise to do so was included in a Stroock-drafted declaration filed with the Bankruptcy Court in opposition to Paliafito's motion to convert the MAI bankruptcy to Chapter 7. (PX 111). "On May 28, 1993 ... I also agreed to place my shares in a voting trust and grant an independent party the right to vote on all matters requiring shareholder approval other than the sale of substantially all of the Debtor's assets or the sale of stock." (PX 111).
D. This Court's June 25 Status Conference
184. On June 25, 1993, the Court held a status conference. The Court notified the parties that it would defer ruling on Paliafito's motion for entry of judgment against the Mantae defendants for two weeks, that is, until July 9, 1993. (PX 133).
185. At no time during the status hearing did Loeffler or anyone else seek a modification of ¶ 15(d), (e), or (f) of the First Supplemental Writ. Nor did Loeffler seek any determination by the Court about whether Joy could sell her stock to pay her attorneys' fees. (PX 285).
186. On June 25, Loeffler "Fed-Ex'd" a letter to Joy reporting the results of the conference. The letter included reminders that the Court had deferred decision for two weeks on Paliafito's motion for judgment, a request for payment for services, and an enclosure of the Court's April 27th letter ruling. (PX 134).
E. Joy States Her Intent to Sell Her MAI Stock
187. On June 26, 1993, the day she received Loeffler's June 25, 1993 letter, Joy expressed her intention to sell her MAI stock. (3 Tr. 532-33: 25, 1-3 (Lee); 8 Tr. 1694-95: 16-25, 1 (Loeffler)).
188. On June 28, 1993, Zirn, an associate at Stroock, prepared and circulated a memorandum regarding the "disposition of MAI stock" (PX 135) to Robert Wilcox, copies to Joy, Loeffler, and Katz:
Pursuant to our telephone conversation earlier today, I spoke to Herb regarding Joy's contemplated disposition of her shares in MAI, and any advise [sic] he may have rendered in connection therewith.
Herb advised me that he has not spoken with Joy regarding her plans to sell the stock. He merely informed her that he had been advised by David Loeffler that the Wisconsin attachment order had been modified to allow her to use her personal assets to pay for attorneys' fees.
(PX 135).
F. The Respondents Knew Paliafito Would Object
189. Loeffler recognized that Paliafito "may well argue that 15D is the only controlling *1269 provision" and that ¶ 15(d) prohibited Joy from selling her stock. (8 Tr. 1698: 4-19 (Loeffler)).
190. Loeffler identified the risk to Joy that the stock sale could violate paragraph 15(d), but he advised her that she could proceed with the sale. (8 Tr. 1700: 6-13 (Loeffler)).
191. Loeffler justified his advice on the grounds that if he was wrong, and the Court determined that the sale did violate ¶ 15(d), "what difference does it make because if it's covered by the writ, the deal's going to be no good anyway. But if it is not covered by the writ then you are free to sell it." (8 Tr. 1699: 4-6 (Loeffler) (emphasis added)).
192. Loeffler discussed with Stroock the impact of the terms of the First Supplemental Writ with Stroock upon Joy's contemplated sale. Stroock thought Loeffler's reading was reasonable (8 Tr. 1702-03: 22-25, 1-4 (Loeffler)), but they discussed the likelihood that Paliafito would take the view that ¶ 15(d) precluded the sale. (8 Tr. 1703: 5-9 (Loeffler)).
G. The Respondents Agree to Joy's Stock Sale
193. Before she sold her stock, Joy wanted to get the opinions from Loeffler and Victor George on the issue of whether she could sell it. (3 Tr. 534: 12-20 (Lee)).
194. Loeffler and Victor George told Joy that it would be okay for her to sell the MAI stock to pay attorneys' fees. (3 Tr. 538: 19-25 (Lee)).
195. Joy also recalled that she discussed with the attorneys at Stroock, either Katz or Zirn, whether it would be proper for Joy to sell her stock. (3 Tr. 541: 2-4 (Lee)).
196. Everybody Joy asked agreed that it would be okay for her to sell the stock. If everyone had not agreed, Joy probably would not have sold the MAI stock. (3 Tr. 539-540: 25, 1-5 (Lee)).
197. Wilcox knew that there was a "strong likelihood" that Paliafito would be concerned if the stock was sold. (6 Tr. 1248-49: 24-25, 1-4 (Wilcox)).
198. Loeffler never suggested to Joy that, in light of the fact that Loeffler knew the position Paliafito would take, that she should go into Court and ask the Court whether she could sell her stock. (8 Tr. 1698: 20-25 (Loeffler)).
199. In all of their discussions regarding the contemplated sale of stock, Loeffler, the attorneys at Stroock, and Victor George never expressed the view that it might be a good idea, so there was no uncertainty, first to ask the Court whether the sale would violate the First Supplemental Writ. (8 Tr. 1703: 10-17 (Loeffler)).
200. Even though they had the opportunity, the Lees and Loeffler chose not to seek a clarification from the Court before proceeding with the sale. (8 Tr. 1704-05: 24-25, 1 (Loeffler)).
H. The Stock Sale Closes and the Lawyers Get Paid
201. On July 8, 1993, one day before the Court was to rule on Paliafito's motion for entry of judgment, Joy sold her MAI stock to Yang Ok Han. (3 Tr. 533: 4-7 (Lee); 3 Tr. 545: 2-14 (Lee); PX 136 at 4; DX 21). See also Select, 852 F.Supp. at 753.
202. The stated purpose of the sale of stock was to get money to pay Loeffler's and Victor George's fees. As a result of the sale, $110,000 was wired into Victor George's bank account from Korea. (3 Tr. 540: 6-12 (Lee)).
203. On July 20, 1993, Victor George sent a letter to Loeffler enclosing a check in the amount of $75,000 "representing monies alluded to [sic] in your retainer correspondence to Joy." (PX 243).
204. In early August 1993, while in Korea, Wilcox signed the stock certificate transferring shares from Joy to Yang Ok Han. (PX 136 at 4; 3 Tr. 545-46, 46: 25, 1-2, 19-21 (Lee); 6 Tr. 1259: 18-25 (Wilcox); DX 21).
205. On August 13, 1993, Mr. Wilcox told Mark Paliafito of the stock transfer, which is how Paliafito learned of it for the first time. (6 Tr. 1250: 11-14) (Wilcox); 9 Tr. 1848: 18-1849: 8 (M. Paliafito)).
*1270 I. Loeffler Denies He Received a Retainer
206. On October 11, 1993, in response to service upon him of Paliafito's writ of execution requiring surrender of any "retainer" paid him by Joy, Loeffler sent a letter to Laura Lenzer, Deputy U.S. Marshal (DX 10) stating "that no property of Ms. Lee ... described as a `$50,000 retainer' was present [at his law firm] at that moment of `seizure.'"
What was present and was seized as of Friday afternoon was a positive credit balance in favor of Ms. Lee in the amount of approximately $9,000, a balance against which charges are made as work is performed.
(DX 10). Loeffler testified to this Court that Joy never paid him a retainer. (8 Tr. 1708: 1-3 (Loeffler)).
207. Contrary to Loeffler's assertions, Joy did pay him a retainer. On June 25, 1993, Loeffler sent Joy a letter (DX 22) requesting her to pay his firm a retainer of $50,000.
But we must be paid on a retainer up-front. We must now have a retainer of $50,000 payable forthwith. We will charge $200 per hour against that $50,000 for the fees and costs of appeal, should judgment be entered against you and Jerrold in two weeks; we will also charge $200 per hour against that $50,000 if the litigation proceeds at the trial level.
(DX 22 at 1-2) (emphasis added).
208. On July 20, 1993, Victor George sent a letter to Loeffler enclosing a check in the amount of $75,000 "representing monies alluded to in your retainer correspondence to Joy Lee." (PX 243) (emphasis added).
209. Loeffler contends that "in the usual economic and commercial discourse about legal fees, `retainer' means a non-refundable payment which is `sunk' regardless of what services are actually performed prospectively," and that Mrs. Lee's payment was actually an "advance" on work to be performed prospectively. (Objections to Paliafito's Proposed Findings of Fact and Conclusions of Law of the Lees and Loeffler at 7). He claims that he meant an "advance" when he referred to a "retainer" in his letter.
J. Paliafito Informs this Court of the Sale
210. On August 12, 1993, Stroock, on behalf of MAI, filed with the Bankruptcy Court a Notice of Change of Ownership attaching the share certificate evidencing the transfer to Ms. Han from Joy. (PX 136).
211. On August 13, 1993, Paliafito brought the sale to the attention of the Court and alleged a contempt of the First Supplemental Writ. (PX 212).
212. After Paliafito brought the sale to the Court's attention, Wilcox discussed with Joy the issue of getting the stock back from Yang Ok Han because it "created more problems than anticipated". (6 Tr. 1275-76: 20-6 (Wilcox)).
213. Loeffler did research into whether the stock sale could be viewed as a fraudulent conveyance to avoid a judgment. (8 Tr. 1709: 8-11; 8 Tr. 1709-10: 22-25, 1 (Loeffler)).
214. Neither Loeffler nor Victor George ever offered to give Joy back the $110,000 to allow her to buy back the MAI stock. (8 Tr. 1727-28: 25, 1-8 (Loeffler)).
215. At the end of August, Joy met with Yang Ok Han on the topic of getting the stock back. (8 Tr. 1714: 18-22 (Loeffler)). They discussed Paliafito's counsel August 16th letter to Ms. Han (PX 204): notice to her of the contempt proceedings and the impropriety of the sale of the stock. (4 Tr. 751-53: 13-25, 1-25, 1-18 (Lee)).
216. Joy raised the possibility that the sale of stock might be a problem. Yang Ok Han wanted to find a way to get Joy out of trouble and still own the MAI stock. (4 Tr. 752-53: 20-25, 1-8 (Lee)).
K. This Court Enters Judgment
217. On August 19, 1993, this Court issued its Decision and Order entering judgment nunc pro tunc to August 13, 1993 against the Lees and the Mantae defendants in the amount of $8 million.
*1271 VIII. PALIAFITO FILES, AND SERVES, ITS CONTEMPT MOTION AND MEMORANDUM ON THE RESPONDENTS.
218. On October 29, 1993, Paliafito filed its contempt motion and memorandum with the Court and served copies upon the Lees and Loeffler.
CONCLUSIONS OF LAW
I. LEGAL STANDARD
1. In order to establish civil contempt, a complaining party must establish that a court order was violated by clear and convincing evidence. D. Patrick Inc. v. Ford Motor Co., 8 F.3d 455, 460 (7th Cir.1993); Stotler & Co. v. Able, 870 F.2d 1158, 1163 (7th Cir.1989) (citation omitted); Shakman v. Democratic Organization of Cook Cty., 533 F.2d 344, 351 (7th Cir.1976), cert. denied, 429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976).
2. To hold a party in civil contempt, "the district court `must be able to point to a decree from the court which "sets forth in specific detail an unequivocal command" which the party in contempt violated.'" Stotler, 870 F.2d at 1163 (quoting Ferrell v. Pierce, 785 F.2d 1372, 1378 (7th Cir.1986)) (quoting H.K. Porter Co. v. National Friction Products, 568 F.2d 24, 27 (7th Cir. 1977)).
3. A party can only be held in contempt for engaging in behavior "clearly prohibited by a court order `within its four corners'" D. Patrick, 8 F.3d at 460 (quotation omitted). Any ambiguity or conflict in the First Supplemental Writ precludes a finding of contempt against the respondents. Id. at 460.
4. However, what the injunction actually saysnot what the parties think it ought to have saidcontrols subsequent proceedings in contempt. Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1432 (7th Cir.1985) (citing Pasadena Board of Education v. Spangler, 427 U.S. 424, 438-40, 96 S.Ct. 2697, 2705-06, 49 L.Ed.2d 599 (1976)), cert. denied, 475 U.S. 1147, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986).
5. A party's reliance on a twisted or tortured construction of the Court's order, coupled with his failure to seek clarification from the Court before engaging in potentially contumacious conduct, can support a finding of willfulness. United States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir. 1974).
6. The state of mind of a party to the underlying action is irrelevant in a civil contempt proceeding. See, e.g., Commodity Futures Trading Comm'n v. Premex, Inc., 655 F.2d 779, 785 n. 11 (7th Cir.1981) ("[T]he fact that a prohibited act is done inadvertently does not preclude a contempt citation...."); West Texas Utilities Co. v. NLRB, 206 F.2d 442, 448 (D.C.Cir.1953) ("Adjudications for civil contempt to protect the benefits of a decree do not depend on the state of mind of the contemnors.") cert. denied, 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369 (1953); NLRB v. Ralph Printing & Lithographing Co., 433 F.2d 1058, 1062 (8th Cir.1970) ("[C]ivil contempt ... is a sanction to enforce compliance with an order of the court and is not dependent on the state of mind of the respondent.") cert. denied, 401 U.S. 925, 91 S.Ct. 883, 27 L.Ed.2d 829 (1971); NLRB v. Crown Laundry & Dry Cleaners, 437 F.2d 290, 293 (5th Cir.1971) ("The crucial issue in civil contempt proceedings ... is not the employers state of mind but simply whether the Court's order was in fact violated.")
7. According to the Supreme Court, "[s]ince the purpose [of civil contempt] is remedial, it matters not with what intent the defendant did the prohibited act.... An act does not cease to be a violation of the law and of a decree merely because it may have been done innocently." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949).[3]
8. Thus, "[a] district court ordinarily does not have to find that the violation *1272 was `willful' to find a party in civil contempt ... and it may find a party in civil contempt if he has not been `reasonably diligent and energetic in attempting to accomplish what was ordered.'" Stotler, 870 F.2d at 1163 (quoting American Fletcher Mortgage v. Bass, 688 F.2d 513, 517 (7th Cir.1982)). Moreover, a civil contempt may be established even though the failure to comply with the Court's order was unintentional or done with good intentions. See Perry v. O'Donnell, 759 F.2d 702, 705 (9th Cir.1985) (citing CFTC v. Premex, Inc., 655 F.2d 779, 784 (7th Cir.1981)).
9. Because a Court's issuance of an order may put the parties to that action on notice that their past acts have been wrongful, "`[n]o concept of basic fairness is violated by requiring a person in this position to be more than normally careful in his [or her] future conduct.'" Greyhound, 508 F.2d at 532-33 (citation omitted). A contemnor who fails to seek the Court's clarification or modification of the Court's order before engaging in potentially contumacious conduct "ha[s] only itself to blame for its ... predicament." Scandia Down Corp., 772 F.2d at 1432.
10. Under certain circumstances, a district court may find a nonparty to the underlying action in contempt of court. See Stotler, 870 F.2d at 1164. According to the Federal Rules of Civil Procedure, "when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party." Fed.R.Civ.Proc. 71.
11. The issue of whether and when a court's order can be enforced against a nonparty was perhaps best explained by Judge Learned Hand in the case Alemite Manufacturing Corp. v. Staff, 42 F.2d 832 (2d Cir. 1930):
[N]o court can make a decree which will bind any one but a party; ... it cannot lawfully enjoin the world at large, no matter how broadly it words its decree.... Thus, the only occasion when a person not a party may be punished, is when he has helped bring about, not merely what the decree has forbidden ... but what it has the power to forbid, an act of a party. This means the respondent must either abet the defendant or be legally identified with him.
Id. at 833 (emphasis added).
12. Federal Rule of Civil Procedure 65(d) "is a codification of [this] common-law rule allowing a non-party to be held in contempt for violating the terms of an injunction when a non-party is legally identified with the defendant or when the non-party aids or abets a violation of an injunction." State of Illinois v. United States Dept. of Health & Human Ser., 772 F.2d 329, 332 (7th Cir.1985). See also Herrlein v. Kanakis, 526 F.2d 252, 253-54 (7th Cir.1975).
13. Rule 65(d) provides, in pertinent part, that an injunction "is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." Fed.R.Civ.P. 65(d) (emphasis added).
14. Thus, nonparties with notice of the Court's order who are in active concert or participation with a party or who aid and abet a party's violation of the order may be held liable for contempt. United States v. Board of Education of the City of Chicago, 11 F.3d 668, 673 (7th Cir.1993).
15. According to the Seventh Circuit:
The most well-accepted formulation of the standard of proof for aiding and abetting is that expressed by Judge Learned Hand in United States v. Peoni, 100 F.2d 401 (2d Cir.1938). He wrote that the prosecution must show that the defendant `in some sort associate[d] himself with the venture, that he participate[d] in it as in something he wishe[d] to bring about, (and) that he [sought] by his action to make it succeed.' Id. at 402.
United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980). See also United States v. Hooks, 848 F.2d 785, 789 (7th Cir.1988) (citations omitted).
16. The standard for proof of aiding and abetting thus has two prongs, "association and participation; that is, intent plus some overt act designed to aid in the success of the *1273 venture". Beck, 615 F.2d at 448-49. See also United States ex rel. Vuitton et Fils S.A. v. Karen Bags, 602 F.Supp. 1052, 1064 (S.D.N.Y.) (applying standard in context of criminal contempt) aff'd sub nom. 780 F.2d 179 (2d Cir.1985) rev'd on other grounds sub nom. 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).
17. Determining whether a nonparty respondent has actively aided a party in violating the Court's order necessarily requires some inquiry into a nonparty respondent's state of mind. Unlike the inquiry required for parties to the underlying action, it is not enough that the actions of nonparties simply violated the Court's order.
18. Thus, in evaluating whether the Lees are in contempt of court, our task is simple. We need only examine the text of the Court's order, determine whether the party had notice of the order, and determine whether the party acted in violation of the order. Similarly, in order to determine whether Mr. Loeffler is liable for contempt, we must examine the text of the Court's order, determine whether he had actual notice of the order, and determine whether he has acted in concert with, or aided and abetted, the Lees in violating the Court's order.
II. THE ALLEGED CONTEMPTS
A. Joy Lee's Document Shredding
19. On January 24, 1992, this Court issued a Protective Order which set forth in specific detail an unequivocal command: "[T]he parties shall not destroy or dispense with documents until further order of the Court."
20. As set forth above, Joy Lee had actual knowledge of the Court's January 24, 1992 Order, including personal possession of the Order. (FF ¶ 90.)
21. On and after February 24, 1993, Joy Lee knowingly violated the Court's January 24, 1992 Order by expressly allowing and authorizing the establishment of a procedure by which MAI documents were shredded. (FF ¶¶ 91-95) Under the procedure allowed and authorized by Joy Lee, MAI documents were shredded and destroyed, although there is no record or other way to determine precisely which documents were destroyed.
22. Accordingly, the Court finds, by clear and convincing evidence, that Joy Lee violated this Court's January 24, 1992 Protective Order and is in contempt thereof.
B. Joy Lee's Bank Account
23. Paragraph 15(b) of the First Supplemental Writ set forth in specific detail an unequivocal command: Joy Lee was prohibited "from establishing any new bank, money market, brokerage, or other accounts created for the deposit and/or retention of assets."
24. Joy Lee had actual knowledge of the terms of the First Supplemental Writ. (FF ¶ 116, 120.)
25. Joy Lee violated Paragraph 15(d) of the First Supplemental Writ by opening a joint bank account with her nephew in May 1993. (FF ¶ 119.)
26. Accordingly, the Court finds, by clear and convincing evidence, that Joy Lee violated Paragraph 15(d) of the First Supplemental Writ and is in contempt thereof.
C. The Lees' Violations of Paragraphs 15(e) and 15(f)
27. The First Supplemental Writ set forth in specific detail the following unequivocal commands:
The Mantae defendants [defined to include Jerry and Joy Lee, among others] and any person or entity in active concert or participation with them who receives actual notice of this Order by personal service or otherwise are hereby enjoined:
* * * * * *
(e) from directing customers to pay anyone other than the Receiver for amounts due the Mantae defendants; [and]
(f) from shipping any product directly, or indirectly, to customers in the United States without the permission and supervision of the Receiver, or its agent.
First Supplemental Writ ¶ 15(e)-(f).
28. We conclude that the language of these paragraphs is unambiguous. We also *1274 conclude that the Lees and their counsel had actual knowledge of the terms of the First Supplemental Writ. (FF ¶ 116, 117.)
29. Therefore, the only matter remaining for discussion is whether the actions of the Lees violated the "four corners" of this provision of the First Supplemental Writ.
30. Paliafito contends that the Lees violated Paragraphs 15(e) and (f) through the use of front companies: MJ Korea and PTKSS in Indonesia. Specifically, Paliafito argues that the Lees violated Paragraph 15(e) of the First Supplemental Writ by directing MAI and other international purchasers of Grip Toy products to pay funds to MJ Korea and PTKSS"fronts" for the Mantae defendantsinstead of to the Receiver, for amounts due the Mantae defendants. It further claims that the Lees violated Paragraph 15(f) by shipping, and procuring the shipment of, product by their "front companies" to "customers" in the United Statesnamely, to MAI, Inc.without the supervision of the Receiver.
31. The Lees dispute these claims. They contend that Paliafito has failed to prove by clear and convincing evidence that MJ Korea and PTKSS are fronts or alter egos of the Lees, as individuals, or of MAI or MAI, Ltd. Therefore, they argue, because these companies are independent, the transactions were not prohibited by the First Supplemental Writ. In addition, they argue that Paliafito has failed to introduce clear and convincing evidence of shipments by MJ Korea and PTKSS to MAI, Inc. or its customers.
32. Soon after the Court concluded the evidentiary hearing on Paliafito's motion for a writ of attachment in April 1992, the Lees, pursuant to a plan drafted by their lawyers, began creating new corporate shells to "insulate" from Paliafito and other creditors the more than $30 million in assets in the Lees' corporate empire. (FF ¶¶ 10-37.)
33. Under the plan, the Lees created the entity "Mi Jong Industries." To conceal its affiliation with MAI, employees at MAI used different names when conducting business on behalf of Mi Jong. (FF ¶¶ 10-37; 54-74.)
34. On December 26, 1992, approximately three weeks after this Court's December 1, 1992 Decision and Order, the Lees' primary Korean operation, MAI, Ltd., purportedly went into "bankruptcy" in Korea. (FF ¶ 49.) Although Korean law would call for recordation of such a bankruptcy on MAI, Ltd.'s company registry on file with the Korean district court, no such recordation appears. (FF ¶ 52.)
35. Three days later, on December 29, 1992, MJ Korea company was incorporated, supposedly by former employees of MAI, Ltd. (FF ¶¶ 55, 56). Thereafter, Jerrold Lee (a) conducted business on behalf of both MAI, Ltd. (even though it had purportedly ceased doing business) and MJ Korea using the same telephone number, (FF ¶¶ 58-62; 67-70), (b) had customers switch letters of credit from MAI, Ltd. to MJ Korea (FF ¶ 60), and (c) faxed documents using MAI, Ltd.'s fax machine (FF ¶ 131). These findings, taken in conjunction with the entirety of the record evidence, compels the conclusion that MJ Korea was a "front" for the Lees.
36. Despite the fact that the Han family purchased 85 percent of MJ Korea's stock on April 23, 1993 (FF ¶ 75), Jerry Lee continued to exercise control over the affairs of the company, at least through the summer of 1993. (FF ¶ 79.)
37. Pursuant to the Lee's asset-insulation plan, in the summer of 1992 the Lees and their family members also created the Indonesian operation, PTKSS, in order to move their principal manufacturing operations from Korea to Indonesia. (FF ¶ 19-27). Paliafito has produced considerable evidence that the Lees did in fact control PTKSS including: (a) the fact that MAI, Inc. provided the start-up money for the company (FF ¶ 21); (b) that PTKSS was jointly owned by MAI and Jerry Lee's brother (FF ¶ 24); (c) various references by MAI Inc. and others to having control of its manufacturing in Indonesia (FF ¶¶ 35, 37); and (d) the attempt by MAI to modify this Court's injunction to ensure MAI's access to its "affiliated suppliers" (PX 201 at 7). We conclude that Paliafito carried its burden of producing clear and convincing evidence that the Lees or MAI, or MAI, Ltd., control PTKSS, the Indonesian toy producer.
*1275 38. Paragraph 15(e) prohibits the Lees and those acting in concert with them from directing any customer to pay any money owed to the Mantae defendants to anyone other than the Receiver.
39. Paliafito alleges that the Lees violated this provision of the First Supplemental Writ by directing MAI Inc. and other international purchasers of Grip Toy products to pay funds to MJ Korea and PTKSS instead of to the Receiver.
40. MAI Inc. was a customer of MAI Ltd., a Mantae defendant.
41. MJ Korea and PTKSS were fronts for MAI Ltd. and the Lees. Thus, any monies paid by MAI Inc. to those entities for Grip Ball products were in actuality "amounts owed" to Mantae defendants (MAI Ltd. and the Lees).
42. The Court is convinced that during most of the relevant time period, the Lees were in control of MJ Korea and PTKSS and therefore "directed" customers to pay amounts due to Mantae defendants to persons other than the Receiver. Therefore, they violated this provision of the First Supplemental Writ.
43. Specifically, Paliafito alleges that the Lees violated paragraph (e) by causing MAI Inc. to transfer a total of $341,000 to MJ Korea between April 14, 1993 and August 27, 1993.[4] (PX 176.)
44. Paliafito further alleges that on May 28, 1993, MAI transferred $6,125 to PTKSS, and on August 3, 1993 MAI transferred another $22,920 to PTKSS in violation of the First Supplemental Writ.
45. Paliafito further contends that after April 7, 1993, MJ Korea received approximately $270,000 from Grip Ball sales around the world. This figure is based on Wilcox's estimation that MAI Inc. received between $12,000 and $14,000 in commissions from the international sales of Grip Toy products and MAI Inc.'s five percent commission on such sales. (7 Tr. 1340-41 (Wilcox).)
46. Finally, Paliafito contends that "it is reasonable to conclude that Paliafito suffered damages representing some portion of the $2 million in international sales which Joy projected for 1993." (Paliafito Proposed Finding of Fact ¶ 292.)
47. For the foregoing reasons, the Court concludes that the Lees have violated subparagraph (e) by directing customers to pay monies owed to the Mantae defendants to persons other than the Receiver and are therefore in contempt of this Court's Writ.
48. Paragraph 15(f) of the First Supplemental Writ prohibits the Mantae defendants, including MAI Ltd., the Lees, and those in active concert and participation with them, from shipping any product to customers in the United States without the permission and supervision of the Receiver.
49. MJ Korea and PTKSS were in active concert with the Lees and therefore were thus barred from shipping products to American customers without permission from the Receivers.
50. Paliafito alleges that MJ Korea and PTKSS, as MAI Ltd. fronts, shipped product to MAI Inc.a customer of MAI Ltd.in the United States in violation of the First Supplemental Writ.
*1276 51. It appears from the payments made by MAI Inc. to MJ Korea and PTKSS that, in all likelihood, product was in fact shipped to MAI Inc. However, Paliafito has not pointed to any testimonial or documentary evidence in the record to support this claim. In addition, the fact that the Grip Toy products were normally purchased through the documents on acceptance or D/A process raises the possibility that the product was shipped well prior to the payment and potentially in advance of the issuance of the First Supplemental Writ.
52. We conclude that Paliafito has not established a violation of this provision by clear and convincing evidence. Therefore, we cannot find the Lees in contempt of this provision of the First Supplemental Writ.
D. The Stock Sale
53. On July 8, 1993, one day before this Court was scheduled to rule on Paliafito's motion for entry of judgment against the Lees, Joy Lee sold her stock in MAI, Inc. to Yang Ok Han. (FF ¶ 201).
54. Joy Lee sought out, and obtained, David Loeffler's approval before she sold her shares. (FF ¶¶ 193-194.)
55. Paliafito alleges that this sale is a violation of the First Supplemental Writ, and that the Joy Lees should be found in contempt of Court for violating the Writ and Loeffler should be found in contempt for aiding and abetting this violation.
56. The Writ provided, in pertinent part:
The Mantae defendants, [defined to include Joy Lee] and any person or entity in active concert or participation with them who receives actual notice of this Order by personal service or otherwise are hereby enjoined:
(a) from selling or otherwise transferring any properties, inventories, accounts receivable, bank accounts, marketable securities, currency, certificates of deposits, checks or other negotiable instruments, or other assets they own or which they claim to own ... except to pay reasonable living expenses, provided however that such expense shall not be construed to include payment for attorneys' fees.
* * * * * *
(d) from ... transferring ownership interests in, any of the corporations affiliated in any way with the manufacture, exportation, importation, distribution, or sale of the Grip Ball Game, including, but not limited to, Mantae Company Limited, Best General Merchandise, Inc., MAI, Ltd., Best International Corp., Grip Toys, Inc., Mantae of California, and Puff Pac Production, Ltd.
(First Supplemental Writ at ¶ 15(a), (d)).
57. The Lees and their counsel, Loeffler, had actual knowledge of the terms of the First Supplemental Writ. (FF ¶¶ 116, 117).
58. The Lees and Loeffler both knew that MAI, Inc. was affiliated with the importation, distribution, and sale of the Grip Ball Game, and therefore had notice that paragraph 15(d) prohibited the sale or transfer of MAI Inc. stock.
59. The original language of the First Supplemental Writ is clear and unambiguous.
60. However, the Court amended this language on April 27, 1993.
61. At a status conference held before this Court on that same date, Mr. Loeffler requested that a "portion of the Order be amended to allow the Lees to pay lawyers if the litigation continues in this court on a pay-as-you-go basis from assets that are not presently under attachment." (Transcript of April 27, 1993 Proceedings at 59:20-24.)
62. In response, the Court stated that "I'm going to ... reconsider the first supplemental writ of attachment insofar as it affects attorneys' fees, and I'm going to relieve Mr. Loeffler from the interpretation of that portion of the writ which would prohibit the payment of unattached assets for attorneys' fees...." (Transcripts of April 27, 1993 Proceedings at 74:7-13).
63. The Court memorialized this ruling in a letter dated April 27, 1993:
Third, the Court ordered that paragraph 15(a) of the First Supplemental Writ of Attachment ... be amended by replacing the language reading "provided however *1277 [sic] that such expense [sic] shall not be construed to include payment for attorneys' fees" with "provided, however, that such expenses shall be construed to include payment for necessary and reasonable attorneys' fees."
64. The Lees and Loeffler claim that the text of the First Supplemental Writ as amended, read in light of the Court's remarks, could be reasonably interpreted to permit the sale of Joy Lee's MAI, Inc. stockher personal "asset" or personal "property"for the limited purpose of paying reasonable attorneys' fees. They contend that it is reasonable to read the constraints of the First Supplemental Writ as amended on April 27, 1993, to provide in effect that reasonable living expenses which are outside the First Supplemental Writ shall be construed to include payment for necessary and reasonable attorneys' fees, and as not including the implied limitation, "but only if financed out of current income from MAI, Inc. or other sources of current income."
65. Paliafito argues that this interpretation of the First Supplemental Writ and its amendment is unreasonable. It argues that the Lees' and Loeffler's interpretation is contrary to the language of the Court's orders and the purpose behind them, and that subparagraph (d) exists independently of subparagraph (a) of the First Supplemental Writ.
66. According to Paliafito, subparagraph (d) was put in place to prevent the Lees from manipulating "corporate shells" to hide assets. It claims that Loeffler's argument before the Court at the hearing focused only on modifying subparagraph (a) to allow the payment of attorneys' fees from "current income," and that the prohibition on transferring ownership interests in Grip Toy-related companiesincluding MAI Inc.was still in place after the amendment.
67. While we conclude that Paliafito's interpretation of the First Supplemental Writ and its amendments is clearly the most reasonable, as well as the most consistent with the Court's intent, we cannot conclude that our Order as amended was clear and unambiguous.
68. Thus, we feel compelled to conclude that neither Loeffler nor Joy Lee are in contempt of this order. See D. Patrick, 8 F.3d at 462 ("[A]mbiguity precludes a finding of contempt."). We need not reach the issue of whether the conduct of Joy Lee violated the Writ or whether Loeffler aided and abetted such a violation. Therefore, we conclude that Joy Lee's sale of her MAI stock to Yang Ok Han, on advice from Loeffler, was not a civil contempt by Lees or Loeffler because the text of the writ, as amended on Loeffler's motion on behalf of the Lees, was ambiguous.
69. This conclusion should not be mistaken for the Court's approval of the actions of Ms. Lee or Mr. Loeffler in selling Ms. Lee's MAI Inc. stock. It is the opinion of the Court that both parties escape liability for contempt only based on this Court's error in failing to unambiguously express its intention in its amendment to the First Supplemental Writ. Joy Lee and David Loeffler were aware of the possibility that they were violating the spirit, if not the letter, of the Court's order. Aware of the risk that the sale might violate ¶ 15(d), Loeffler could have made a telephone call to Paliafito before proceeding with the sale. The parties then could have had a ten-minute telephone conference with the Court to clarify the Order. Instead, Loeffler and Joy Lee chose to proceed with the sale, without first seeking clarification from the Court, and with the belief that, if they were wrong, the "only" risk they faced would be that the Court would undo the transaction. (FF ¶ 191).
III. SANCTIONS
70. The Supreme Court has explained the purpose of sanctions in a civil contempt proceeding as follows:
Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.
United States v. United Mine Workers of America, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947).
71. Whereas is the case here compensation is intended, a fine may be imposed *1278 payable to the complainant.[5]See Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th Cir.1988) (citations omitted).
72. In assessing a civil fine, a court should "`insure full compensation to the party injured.'" Id. (quoting Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389 (1932)).
73. Under Seventh Circuit precedent, the plaintiff must prove its damages as a necessary element of a civil contempt proceeding. Shakman, 533 at 349; Hecht v. Don Mowry Flexo Parts, Inc., 111 F.R.D. 6, 9 (N.D.Ill.1986).
74. However, unlike the existence of a contempt of court, damages need not be proved by clear and convincing evidence. See Graves v. Kemsco Group, Inc., 864 F.2d 754, 755 (Fed.Cir.1988) (applying Seventh Circuit law and citing Shakman, 533 F.2d at 351).
75. Nevertheless, "[d]amages must not be speculative or probable and they must be proved with a reasonable degree of certainty." Classic Bowl, Inc. v. AMF Pinspotters, Inc., 403 F.2d 463, 467 (7th Cir.1968).
76. Where the aggrieved party's injury "`is of such a nature as to preclude the ascertainment of the amount of damages with certainty ... it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result [may] be approximate.'" Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1520 (11th Cir.1990) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931)) (affirming district court's assessment of civil contempt fine in the amount of contemnor's profits plus 1.5 times the royalties that should have been paid by (infringing restaurateur)).
77. Thus, "[w]hile it is true that the plaintiff[] need not prove [its] damages to a mathematical certainty, neither can [it] rely on mere speculation or conjecture." Harbor House Condominium Association v. Massachusetts Bay Insurance Co., 915 F.2d 316, 319 (7th Cir.1990) (citing S.C. Johnson & Son, Inc. v. Louisville R. Co., 695 F.2d 253, 261 (7th Cir.1982)).
78. A contemnor's profits may be a proper measure of damages for civil contempt. Connolly, 851 F.2d at 934. Total receipts obtained through the violation of an injunction may also provide the measure for a civil contempt fine. See Maruzen Int'l Co. Ltd. v. Bridgeport Merchandise Inc., 770 F.Supp. 155, 160 (S.D.N.Y.1991) (exclusive distributor who obtained injunction against infringer entitled to civil contempt fine in amount of total receipts obtained by contemnor).
79. The complainant may also recover attorneys' fees and expenses incurred in prosecuting the contempt. Connolly, 851 F.2d at 935 (attorneys' fees); Premex, Inc., 655 F.2d at 785 ("[A]n award of expenses and fees in civil contempt proceedings is proper and is independent of any award of compensatory damages.") (citations omitted). a) It is impossible to determine the amount of damages suffered by Paliafito as a result of Joy Lee's violations of paragraph 15(b) of the First Supplemental Writ and the January 24, 1992 Protective Order.
80. However, as set forth in the Court's findings of fact and as set forth above (see II C.), the Court concludes that, by reason of the violation of ¶ 15(e) of the First Supplemental Writ, Paliafito has suffered damages in the amount of $370,540 consisting of: (a) $341,500, the amount of MAI funds sent to or for the benefit of MJ Korea during the spring and summer of 1993 (FF ¶ 163); plus (b) $29,045, the amount of MAI funds sent to or for the benefit of PT *1279 Kartika Semesta, the Lees' Indonesian operation (FF ¶ 162).
82. We conclude that these transfers to Lee-controlled fronts caused Paliafito to suffer actual damages in these amounts. This money, had it not been transferred overseas, would have been attached for Paliafito's benefit and would have been applied toward satisfying its judgment against the Lees.
83. However, we conclude that Paliafito's request for $270,000 and "some portion" of $2 million, both representing money MJ Korea received from MAI's international customers, is too speculative and will thus be disallowed.
84. We also conclude that Paliafito is entitled to recover its reasonable attorneys' fees incurred in bringing this action. Because this is an equitable proceeding, the "American Rule"that the prevailing party does not get attorneys' fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247-262, 95 S.Ct. 1612, 1616-1624, 44 L.Ed.2d 141 (1975)does not apply. This is not an ordinary action where the prevailing party is attempting to recover its fees. The purpose of this sanction is to make the aggrieved party whole. The costs Paliafito has incurred to enforce this Court's orders to its benefit are an appropriate measure of the remedy.
85. Therefore, the Court hereby levies a fine against the Lees in the amount of $370,540 for violations of Paragraph 15(e) of the First Supplemental Writ. In addition, the Court orders that the Lees shall be held liable for that portion of Paliafito's attorneys' fees, costs of investigation, and costs of the contempt hearing attributable to their violations of the Court's orders.
85. Within thirty (30) days of the date of this order, Paliafito shall submit a fee application and bill of costs subject to the approval of the Court to determine this additional amount. The Lees will have twenty-one (21) days to object to Paliafito's bill of costs.
86. As discussed in this Court's previous decision entering judgment in the amount of $8 million against the Mantae defendants, Select Creations, Inc. v. Paliafito America, Inc., 830 F.Supp. at 1230, before a court may enter a default judgment against a recalcitrant defendant, there must be some finding of contumacious conduct, dilatory tactics, or the failure of less drastic sanctions.
87. Additionally, a court must be guided by norms of proportionality to insure that the default sanction is commensurate with the circumstances. The Seventh Circuit recently elaborated:
Since sanctions should be proportionate to wrongdoing, the district judge should compare the size of the default judgment, discounted by the probability of collection, with the gravity of the defendant's procedural lapses or other misconduct, in deciding whether to enter such a judgment.
Philips Medical Sys. Int'l, B.V. v. Bruetman, 8 F.3d 600, 602-03 (7th Cir.1993), reh'g. denied, Jan. 10, 1994.
89. Applying the above standards for entry of a default judgment, the Court concludes that the Lees' willful violations of ¶¶ 15(b) and (e) of the First Supplemental Writ, and Joy Lee's willful violation of the January 24, 1992 Protective Order, each constitute separate, independent, and additional grounds warranting entry of a default judgment against the Lees and their companies in the amount of $8 million.
90. The Court concludes that the above contempts are part and parcel of the Lees' deliberate and calculated scheme to evade this Court's orders to the grave prejudice of Paliafito. From the very outset, the Lees have used delay to place their assets out of the reach of the Court and Paliafito. During the pendency of Paliafito's motion for a writ of attachment, the Lees represented that they were not secreting assets and would honor any order which the Court might enter on Paliafito's motion. Meanwhile, the Lees embarked on a course to "insulate" themselves from liability by secretly creating new corporate entities and placing their assets under the control of corporations located outside the United States.
91. The latest actions(a) the use of front companies to conduct business in contravention of the First Supplemental Writ, (b) the sale of stock to thwart Paliafito's *1280 ability to collect assets and to take control of MAI and oust Joy Lee, (c) the undisclosed establishment of a bank account, and (d) the shredding of documentsare a continuation of the Lees' contumacious scheme to evade this Court's orders.
92. Accordingly, the Court concludes that the Lees' violations of the First Supplemental Writ, and Joy Lee's willful violation of the January 24, 1992 Protective Order each provide separate, independent, and additional bases for the entry of judgment against the Mantae defendants, jointly and severally, in the amount of $8 million.
SUMMARY
For the foregoing reasons, the Court finds Joy Lee in contempt of court for violating this Court's January 24, 1992 Protective Order, and for violating paragraph 15(b) of this Court's First Supplemental Writ. The Court further finds both Joy and Jerry Lee in contempt of court for violating paragraph 15(e) of this Court's First Supplemental Writ. The Court declines to find Joy Lee in contempt for violating paragraph 15(d) of the First Supplemental Writ and declines to find Joy and Jerry Lee in contempt for violating paragraph 15(f). The Court declines to find David Loeffler in contempt for aiding and abetting a violation of paragraph 15(d) of the First Supplemental Writ.
As a sanction for these violations, the Court hereby orders the Lees to pay $370,540 to Paliafito. The Court further orders that the Lees pay that portion of Paliafito's attorneys' fees and costs attributable to their contempts. Paliafito shall submit a bill of costs within thirty (30) days of this order; the Lees must submit any objections they have to this bill of costs within twenty-one (21) days of Paliafito's submission.
SO ORDERED.
NOTES
[1] For clarity of reference, in the following proposed findings and conclusions, Miryoung ("Joy") Lee is sometimes referred to simply as "Joy," and Jong Sik ("Jerrold" or "Jerry") Lee is sometimes referred to simply as "Jerry."
[2] Both Jerry Lee, as a shareholder of MAI Ltd., and Paliafito, as a creditor of MAI Ltd., could have obtained certified copies of any court proceedings related to MAI's insolvency. Neither party has submitted any such records to the Court.
[3] While this Court has previously stated in dicta that a party's conduct must be "deliberate and intentional" in order to support a finding of contempt, Rototron Corp. v. Lake Shore Burial Vault, 553 F.Supp. 691, 700 (E.D.Wis.1982), we conclude that a party need not intentionally violate the Court's order to be found in contempt.
[4] We are aware that MAI's payments to MJ Korea passed through U.S. clearing banks, presumably pursuant to the documents upon acceptance or D/A process. The D/A process works as follows: In order to finance the production of goods, the manufacturer borrows money from a Korean bank. That money is used to manufacture goods which are to be shipped to the United States under a bill of lading. Upon receipt of the documents, including the bill of lading proving shipment, the purchaser executes a bill of exchange to a United States collecting bank. This bill of exchange is dated the same as the bill of lading and is typically due 60 to 120 days after shipment of the goods. "Documents upon acceptance" refers to the fact that the receiving documents, including the bill of exchange payable to the U.S. collecting bank by the purchaser, are executed when the goods are shipped to the United States. Sixty to 120 days after the bill of lading date, the purchaser should pay the bill of exchange to the collecting bank who then pays the manufacturer's bank, clearing its debt. (7 Tr. 1452: 17-22 et seq; 1550: 7 et seq. (Wilcox)).
However, this does not change the analysis. The money paid was effectively owed to a Mantae defendantMAI Ltd.and should have been paid to the Receiver rather than to MJ Korea.
[5] The Lees and Loeffler have submitted a "Motion to Dismiss Portions of Paliafito's October 29, 1993 Civil Contempt Proceeding" arguing that a recent Supreme Court case, United Mine Workers v. Bagwell, ___ U.S. ___, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), "has worked a sea change in the posture of this case." We disagree. The holding of Bagwell is that a flat, unconditional fine that is not compensatory is a criminal contempt. Bagwell does not make this sanction a criminal contempt because it is for a determinate sum. The sanction involved in this case is purely compensatory.
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57 F.2d 642 (1932)
WARNER
v.
TENNESSEE PRODUCTS CORPORATION.
No. 5851.
Circuit Court of Appeals, Sixth Circuit.
April 5, 1932.
Ed T. Seay, of Nashville, Tenn., and John Boyle, Jr., of Washington, D. C., for appellant.
*643 C. P. Hatcher, of Nashville, Tenn., and S. E. Darby, of New York City (Pitts, McConnico & Hatcher, of Nashville, Tenn., on the brief), for appellee.
Before MOORMAN and HICKENLOOPER, Circuit Judges, and HAHN, District Judge.
HICKENLOOPER, Circuit Judge.
Appellee brought action in the court below for an infringement of patent No. 1,220,416, for a process of making ferrophosphorus in a blast furnace, granted March 27, 1917, to one J. J. Gray, Jr., and subsequently assigned to the appellee, hereinafter referred to as complainant. On July 10, 1924, the patentee Gray had filed a bill of complaint against the present appellant, defendant below, charging infringement of the same patent now in suit. Such action was fully tried and submitted to the court, but before decision was rendered the parties agreed upon a consent decree adjudicating the patent valid and infringed, and adjusting the matter of profits and damages. Thereafter Gray assigned the patent to the present complainant.
It is conceded by the defendant, and in view of the authorities the rule could not well be otherwise, that this adjudication in 1924, although by consent, constitutes an estoppel by judgment binding upon the parties or their privies, and that all questions of law and fact distinctly put in issue and determined by the decree cannot be disputed in a subsequent suit between such parties or their privies. Southern Pacific R. Co. v. U. S., 168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. 355; Nashville, C. & St. L. R. Co. v. U. S., 113 U. S. 261, 5 S. Ct. 460, 28 L. Ed. 971; Ingraham Co. v. Germanow, 4 F.(2d) 1002 (C. C. A. 2); Vapor Car Heating Co. v. Gold Car Heating & Lighting Co., 7 F. (2d) 284, 287 (C. C. A. 2). Cf. Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 37 S. Ct. 506, 61 L. Ed. 1148. It is therefore wholly unnecessary for us to determine the question of the validity of the patent in suit, or whether the process practiced by the defendant in 1924 should properly have been considered an infringement. Had Gray not assigned the patent to complainant, presumably the present questions would have been raised in contempt proceedings (Leman et al. v. Krentler-Arnold Hinge Last Co., 284 U. S. 448, 52 S.Ct. 238, 76 L. Ed. ___), and then the principal question for our determination would have been, as it is now, whether the process practiced at the later date (1929) was essentially and substantially the same as the process adjudicated an infringement in 1924. Roberts Cone Mfg. Co. v. Bruckman, 266 F. 986 (C. C. A. 9). Cf. Buckeye Incubator Co. v. Boling, 46 F.(2d) 965 (C. C. A. 6).
It is the contention of the defendant that at the time of the alleged infringement of 1929 he was practicing the two-step process covered by patent No. 1,646,268, granted to him October 18, 1927; that the patent in suit was one in an already crowded art, purporting to be merely an improvement over the process disclosed in the prior patent to Gray, No. 831,427, September 18, 1906; that the claims in suit, although accepted as valid, must therefore be strictly construed as limited to a one-step process made operable only by the use in the burden of the blast furnace of an extra charge of coke every fifth charge, followed immediately by a straight pig iron charge; and that, when the claims are so construed, it is apparent that they are not infringed, for the simple reason that the defendant did not use the extra charge of coke every fifth charge, or the pig iron charge which followed it.
Except for the estoppel above mentioned, the defendant's argument would have much to commend it. Ferrophosphorus is an alloy of iron and phosphorus. In order to be merchantable it must contain at least 17 per cent. of phosphorus, and throughout the record it is apparently assumed that the patent in suit is limited to production of the commercial product. That which contains less than 17 per cent. phosphorus is spoken of as "off-ferrophosphorus." In the ordinary pig iron operation of a blast furnace the furnace is charged with suitable quantities of iron ore and limestone. The heat necessary to reduce the iron ore and limestone to their elemental ingredients is supplied by the ignited coke to which a blast of superheated air is transmitted. Limestone is used to the end that its lime content may flux the silicates contained in the iron ore. The result is a molten slag which may be drawn off through tap holes. The elemental iron passes through the burden of the furnace to its bottom or hearth, whence it is likewise drawn off and cast into pigs. In his first patent, No. 831,427, Gray disclosed a process for producing ferrophosphorus by substituting phosphate rock (phosphate of lime) for limestone and smelting the mixture. In practicing this process it is obviously necessary to increase greatly the quantity of phosphate rock, over the limestone previously used in the pig iron practices, in order *644 to secure the desired quantities of phosphorus in the resulting alloy. The patent says nothing as to any increase in the coke content of the charge, except that "it should be noted that care must be exercised in the operation of the furnace to obtain the desired phosphorus content and the heat and blast regulated from time to time to adapt them to the varying conditions of the furnace, as will be understood by those skilled in the art," but it is apparent that if the quantity of rock to be reduced be largely increased, a corresponding increase in the heat-producing coke must be made. The increase in the quantity of phosphate rock also resulted in a marked increase in the lime content, requiring the addition of silicious material to produce a proper flux. Under this patent much is left to the understanding of those "skilled in the art," for the process is claimed simply as consisting "in charging the blast furnace with a mixture of iron ore, a neutral phosphate, and sufficient silica to free the desired amount of phosphorus therefrom, and then smelting the mixture."
Before the date of filing application for the patent in suit, another patent was issued to Gray, No. 1,168,495, January 18, 1916, hereinafter referred to as Gray's second patent. While this patent purports to deal with the process of simultaneously producing phosphorus and phosphids in a blast furnace, and while it goes into much greater detail as to the chemical and physical reactions taking place within the furnace than does his first patent, the disclosure includes, and the claims read upon, the operation of producing ferrophosphorus here involved unless, as hereinafter noted, additional steps (the pig iron and extra coke charges) were added by the patent in suit. As to the quantities of coke and air necessary, this second patent says: "Only sufficient coke is used to provide sufficient heat to bring about the desired chemical reactions between the various elements and to produce and maintain in the furnace more than enough carbon monoxide CO, than is necessary for the deoxidation of the phosphorus compounds liberated by the operation. The air is also used in quantities insufficient to completely ignite the coke or other carbon materials, and only in quantities sufficient to supply the oxygen necessary to the production of the requisite heat in the furnace and to form a portion of the carbon monoxide." (Italics ours.) The claims provide for charging the blast furnace with "a suitable mixture containing said phosphate, sufficient silica to liberate the desired amount of phosphorus, metal sufficient to make the desired amount of phosphids and to produce the desired fluidity in the slag," and "sufficient carbon to bring about the desired reactions." Here also, so far as the claims are concerned, much is left to the experience of those skilled in the art.
In Gray's patent in suit, No. 1,220,416, the elements of novelty which it is insisted are introduced by the claims consist of "maintaining free uncombined carbon in the fusion zone of the furnace; maintaining a temperature in said fusion zone sufficient in the presence of said free carbon to reduce the phosphorus of said phosphatic material to the elemental condition; and maintaining such top temperature as will facilitate the entry of the phosphorus into the iron present." The regulation of the temperature in the fusion zone and of the top temperature is accomplished by regulation of the quantity and temperature of air supplied to the furnace, and it is difficult to see why this and the call for free uncombined carbon in the fusion zone of the furnace were not both present in the processes of the earlier patents, especially the second. Free carbon in the fusion zone means simply coke which is not yet consumed, and the continuous presence of such coke undergoing consumption is an essential of each of the former methods. It is sought to interpret these words as calling for an amount of coke in excess of that required by pig iron practices, but such contention fails to take into consideration the latitude as to heat regulation permitted by the first Gray patent, the provision of the second Gray patent for the use of sufficient carbon to bring about the desired reactions and of insufficient air to completely ignite the coke, or the obvious necessity of increasing the quantity of coke where the quantity of lime-bearing rock and silicates is greatly increased.
It is quite clear from the record that during his experiments which led to the application for the patent in suit Gray encountered serious difficulties due primarily to the large quantities of lime phosphate and silicates, the smelting of which was required by his one-step process. With the introduction of these insolubles the slag became viscous and refractory to such a degree as even to clog the outlets and interfere with tapping operations. Scaffolding of these refractory masses also appeared at the higher levels of the furnace. The remedy suggested by the patent was the introduction at regular intervals of an ordinary pig iron charge, and an increase in the amount of the coke that is usually employed with a pig iron *645 charge. "The effect of employing these pig iron charges is to provide an excess of coke near the bottom of the fusion zone which there produces a high temperature and melts the said accumulated mass." Page 3, line 93, of the patent. In other words, it was assumed that an increase in temperature would have the effect of melting the refractory slag, while the pig iron charge would operate to some degree in flushing it. As already stated, it is difficult to differentiate this disclosure of the patent in suit from the regulation of heat and blast from time to time to adapt them to the varying conditions of the furnace, as provided in Gray's first patent, or from the use of sufficient carbon to bring about the desired reactions and to supply a reducing atmosphere in the furnace, and of insufficient air to completely ignite the coke, as covered by his second patent, unless the periodic pig iron and extra coke charges are to be regarded as essential steps in the process.
In the patent to Warner, No. 1,646,268, the departure from the Gray practice would seem to consist in using "only enough phosphate rock or bone phosphate of lime [as will] combine with the limited amount of silicious and other acid matters in the coke, the phosphate rock, and the iron bearing material." In other words, the proportion of phosphate rock in the charge is reduced. In this manner the patentee claims to produce by his first operation ferrophosphorus containing on an average from 10 to 16 per cent. of phosphorus. This is unmerchantable, and it is then fed back through the furnace in addition to the burden of coke, phosphate rock, and iron-bearing material originally used. The result is said to be a ferrophosphorus of unusually high phosphorus content. We are not here called upon to decide whether a strict adherence to the patented two-step process would avoid infringement of the patent in suit. We may assume that it would, that Gray's patent covered only the one-step process, and that the Warner method avoided the difficulties of clogging outlets, scaffolding, and a dirty hearth in a substantially different manner than did the process used by Gray under the patent in suit. The difficulty with which we are confronted is that the court below found that there was no substantial difference between the alleged infringing practices of the defendant in 1929 and those upon which recovery was predicated in 1924, and the present record would seem adequately to support this fact finding.
In his 1929 operation the defendant used only 1.065 tons of coke for each ton of phosphate rock, while in his 1924 operations he averaged 1.23 tons of coke per ton of phosphate rock. This demonstrates that the proportion of phosphate rock to coke used was increased, not decreased, as contemplated by his two-step process patent. It is true that in the 1929 operation the defendant used no additional silicious material, but he supplied the necessary silicates by the use of high silicious-bearing iron ores. There is also a surprising identity in each of the two years between the proportions of scrap iron, phosphate rock, iron ore, and coke, to the commercial ferrophosphorus ultimately produced. Since the difference between the processes of the Gray patent in suit and the Warner patent, No. 1,646,268, as we see it, consisted of substantially reducing the proportion of phosphate rock in each charge of the furnace, we are unable to accede to the contention that the defendant was following his patented two-step process or had made a substantial departure from that of the patent in suit. It also appears that on a number of days the second step of defendant's alleged process was apparently entirely omitted; that is, commercial ferrophosphorus was produced by the single-step method. Conceding the validity of the patent, as it must here be conceded, it is therefore quite obvious that on those days at least, and as to the commercial ferrophosphorus thus produced, the defendant has infringed.
We do not overlook the earnest contention of the defendant that the 1924 practice was then claimed to be, and must now be assumed to have been, an exact or "Chinese" copy of the process of the patent in suit, while the 1929 practice omitted entirely the pig iron charge and the extra charge of coke every fifth charge, and that one or both of these elements must be read into the claims to give them validity and novelty in view of the prior art. Were the operations of the two years substantially different, this contention might well have a place in the determination of the question of infringement, but upon the present record we are unable to say that the court below erred in finding a lack of such substantial difference in defendant's two operations. In this position we are fortified by the apparent admission of the defendant that the only change he made in 1929 was the substitution of more metallic iron for iron ore in the charges. Lacking such substantial difference between the earlier and later practices, the matter of *646 infringement as to the later, as we have already stated, must be considered as res judicata between the parties. An argument based upon claim construction has, therefore, no place in the decision of the present case.
The decree of the court below not only enjoined continued infringement of the patent in suit and ordered an accounting of profits and damages, but included in the injunction the leasing and licensing by defendant of rights under his patent No. 1,646,268. In this we are of the opinion that the court below erred. The validity of this patent was not and could not have been directly put in issue by complainant under its bill in the present action. No counterclaim thereon was asserted. Even assuming that the process therein patented cannot be practiced without infringement of the Gray patent No. 1,220,416, an assumption which is apparently far from justified by the present record, and regarding the Warner method as merely an improvement upon that of the Gray patent, the defendant would still be entitled to the monopolistic enjoyment of his process after the earlier expiration of the patent in suit. A perpetual injunction as to it is therefore clearly inappropriate.
Objection is also made by the defendant to that part of the decree which enjoins the making, selling, or distributing of any of the product made by the exercise or use of the process of the patent in suit, and in decreeing an accounting as from January 1, 1929, in the absence of the notice provided by Rev. St. § 4900 (35 USCA § 49). As to the first of these matters, if the product made by the infringing use of the patented process remains unsold, there can be no element of profits or damages arising from the infringement. The amount so remaining unsold would therefore be excluded from consideration on the accounting, but we see no valid objection to this portion of the injunction as such. Fulton Co. v. Bishop & Babcock Co., 17 F.(2d) 1006 (C. C. A. 6). As to the second proposition we are of the opinion that the first suit was sufficient notice of infringement and that the court did not err in fixing the time to be covered by the accounting. Compare Oil Well Imp. Co. v. Acme Foundry & Mach. Co., 31 F.(2d) 898 (C. C. A. 8). Actual notice of the issue and contents of the patent, and of the claim that a practice infringes, is sufficient regardless of the source of such notice, if, in fact, Rev. St. § 4900 applies at all to process patents. Wagner v. Corn Products Ref. Co., 28 F. (2d) 617 (D. C., N. J.).
For the reasons above stated, the decree of the District Court will be modified by striking therefrom all reference to the defendant's so-called two-step process, and, as modified, is affirmed. Costs in this court will be divided in the proportions of the appellant paying three-fourths and the appellee one-fourth thereof.
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587 F.Supp. 1390 (1984)
Victor LEPUCKI
v.
Bernard L. VAN WORMER, Donald Regan, Secretary of the Treasury of the U.S. and Employer of Van Wormer, and Richard Smulevitz, and his Employer, Inland Steel Co.
Civ. No. H 83-445.
United States District Court, N.D. Indiana, Hammond Division.
May 31, 1984.
*1391 John Hyde, Hammond, Ind., for plaintiff.
Ronald F. Fischer, Trial Atty., Tax Div. Dept. of Justice, Washington, D.C., Bruce Brattain, Asst. U.S. Atty., Hammond, Ind., for Donald Regan & Bernard Van Wormer.
Palmer C. Singleton, Jr., Glenn R. Patterson, Highland, Ind., for Richard Smulevitz and Inland Steel Co.
*1392 ORDER
MOODY, District Judge.
This cause is before the Court on a Motion to Dismiss filed by defendant Smulevitz and Inland Steel Company on September 27, 1983 and on a Motion to Dismiss or in the Alternative for Summary Judgment filed by defendants Van Wormer and Regan on October 3, 1983. The cause originally came before the Court on July 15, 1983 when defendants Smulevitz and Inland Steel Company filed a petition for removal; the petition sought removal, under 28 U.S.C. § 1441 and § 1442, of an action which plaintiff had filed in the Superior Court of Lake County, Indiana, plaintiff having responded to both Motions to Dismiss, the cause is before the court for a ruling.
Facts
The complaint which plaintiff filed in state court, and which was removed to this Court, is in three counts: Count I alleges a cause of action against defendants Van Wormer and Regan for alleged libel/slander; Count II alleges a cause of action against defendants Inland Steel Company and Smulevitz for wrongful withholding ("conversion") of portions of plaintiff's wages for payment of federal income taxes. Count III is an action against defendants Smulevitz and Inland Steel Company for libel/slander.
Plaintiff is an employee of defendant Inland Steel Company and was an employee of that company in 1981. At the beginning of 1981 plaintiff filed with this defendant a Form W-4 Withholding Allowance Certificate asserting that he was exempt from wage withholding and had no tax liability. Defendant Inland Steel Company accepted the form and sent it to the Internal Revenue Service of the United States of America ("IRS"). The IRS, after investigating plaintiff's claimed exemption, ordered Inland Steel Company to resume withholding federal income taxes from plaintiff's wages. The IRS also imposed a penalty of $500.00 plus interest against the plaintiff for providing false information on the W-4 Form submitted to the IRS via Inland Steel Company. On May 23, 1983 plaintiff was informed by Richard Smulevitz, then payroll supervisor of Inland Steel Company, that the penalty for providing false information to the IRS was being deducted from his wages at the directive of the IRS.
It is these facts that provide the basis for the complaint. Plaintiff asserts that the IRS' communication to Inland Steel Company that plaintiff was being penalized for providing false information to the IRS was a libelous/slanderous accusation; plaintiff seeks damages for $1,050,000 for this alleged defamation. Van Wormer is named as a defendant because he signed the penalty levy, acting thereby in the scope of his employment for the United States Treasury, personified in this action by Donald Regan, Secretary of the Treasury.[1] Plaintiff alleges that defendants Smulevitz and Inland Steel Company acted wrongfully in withholding wages to satisfy the IRS' requirements; plaintiff demands return of the wrongfully withheld wages. Count III is a claim against Smulevitz and Inland Steel Company for damages of $1,050,000; the basis of the claim is that Smulevitz' comment with regard to the reasons for withholding the penalty from plaintiff's wages was slanderous.
Van Wormer and Regan: Motion to Dismiss or in the Alternative for Summary Judgment
Van Wormer and Regan move to dismiss the action against them under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction.
Plaintiff admits in his complaint that the actions he characterizes as defamation were taken by defendant Van Wormer in *1393 the scope of his employment as an agent of the United States of America; Regan is also sued in his capacity as an official of the United States of America.
Government officials sued for defamation based upon actions taken in the official scope of their duties are protected from liability by an absolute immunity created by federal common law. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 566 F.2d 289 (D.C.Cir.1977), cert. denied 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160; Bush v. Lucas, 647 F.2d 573 (10th Cir.1981), cert. granted, 458 U.S. 1104, 102 S.Ct. 3481, 73 L.Ed.2d 1365, affirmed 103 S.Ct. 2404; Scherer v. Manow, 401 F.2d 204 (7th Cir.1968), cert. denied 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777. So long as the act complained of is encompassed within "'matters committed by law to his control or supervision'", the official is immune from civil defamation suits. Barr v. Matteo, 360 U.S. 564, 573-574, 79 S.Ct. 1335, 1340-1341, 3 L.Ed.2d 1434 (1959), quoting Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1895). Plaintiff admits the communication at issue was made within the scope of Van Wormer's official duties as a revenue officer; therefore, Van Wormer and, derivatively, Regan are absolutely immune from suit.
The Court will, therefore, dismiss plaintiff's action against Van Wormer and Regan. The dismissal will be entered pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissal for failure to state a claim upon which relief may be granted, despite defendants' motion for dismissal under Rule 12(b)(1) for lack of subject-matter jurisdiction.
Absolute immunity is a complete defense to an action for defamation; once established, it defeats liability entirely. W. Prosser, Handbook of the Law of Torts § 114 (1971). When a complaint alleges facts that constitute an absolute defense to the claim asserted, that complaint "is vulnerable to a motion to dismiss for failure to state a claim upon which relief can be granted." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1226 (1969). The dismissal of a complaint alleging defamation based upon the defense of privileged communication is a dismissal for failure to state a claim under Rule 12(b)(6). Wallingford v. Zenith Radio Corp., 310 F.2d 693 (7th Cir., 1962); see generally Wright & Miller, supra, at § 3157. Therefore, it is under that rule that dismissal of this action will be entered.
Smulevitz and Inland Steel Company: Motion to Dismiss
Defendants Smulevitz and Inland Steel Company move to dismiss Counts II and III of the complaint. The Court finds the motion well-taken, and will enter an Order dismissing both claims.
Count II is for recovery for an allegedly wrongful withholding of wages. Count II fails to state a claim upon which relief may be granted; defendants were required to withhold the monies in question by a federal statute. 26 U.S.C. § 3403 requires employers to withhold money due for payment of taxes from employees' wages. And employers may not be sued for complying with the requirements of 26 U.S.C. § 3403. As one court held in granting a Rule 12(b)(6) motion to dismiss a similar action, "the employer may be penalized by IRS for failure to pay the tax to it, [but] suits against it by employees for taxes withheld from the pay of such employees are statutorily barred." Chandler v. Perini Power Constructors, Inc., 520 F.Supp. 1152, 1156 (D.N.H.1981); Lonsdale v. Smelser, 553 F.Supp. 259 (N.D.Tex. 1982). Therefore, Count II will be dismissed under Rule 12(b)(6) as failing to state a claim upon which relief may be granted.
Count III is an action for defamation based upon Smulevitz' statement to plaintiff that a penalty was being withheld from his wages, a penalty imposed for plaintiff's falsely representing to the IRS that he had no tax liability for the year in question. A penalty was imposed upon plaintiff; that $500 penalty was imposed under 26 U.S.C. § 6682. 26 U.S.C. § 6682 *1394 provides for civil penalties for "[f]alse information with respect to withholding allowances." Therefore, plaintiff was penalized for false representations to the IRS, so that Smulevitz' statement was true.
Though not, perhaps, as categorical a defense as the defense of absolute immunity, truth is also a defense to an action for defamation, and is generally regarded as a complete defense to such an action. W. Prosser, Handbook of the Law of Torts § 116 (1971); Indiana Legal Encyclopedia, "Libel and Slander" § 62; Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Curtis Pub.Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1099 (1967), rehearing denied 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197; Olinger v. American Sav. & Loan Ass'n, 409 F.2d 142 (D.C.Cir.1969); Moore v. Credit Information Corp. of America, 673 F.2d 208 (8th Cir.1982). Therefore, because Smulevitz' statement was true, defendants have a complete defense to the claim asserted in Count III; in the face of such a complete defense, the plaintiff's allegation must be dismissed under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. See discussion in preceding section.
Therefore, both Counts II and III will be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Costs
The collective defendants have moved for an award of the costs, including attorneys' fees, respectively incurred in this action.
Rule 54(d) of the Federal Rules of Civil Procedure permits the court to award costs "to the prevailing party" in an action. Such an award is a matter within the trial court's sound discretion. Marcus v. National Life Ins. Co., 422 F.2d 626 (7th Cir.1978); Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir.1974), cert. denied 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666; State of Illinois v. Sangamo Const. Co., 657 F.2d 855 (7th Cir.1981). When an action has been dismissed for failure to state a claim, the defendant is the prevailing party. 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 54.70[4]; Wainwright Securities, Inc. v. Wall Street Transcript Corp., 80 F.R.D. 103 (S.D.N.Y., 1978).
"The American rule concerning attorneys' fees is that fees generally are not awarded absent statutory authorization." Benner v. Negley, 725 F.2d 446, 449 (7th Cir., 1984). Defendants concede that there is no statute directing an award of costs and attorneys' fees in this action. But defendants rely upon an exception to the so-called American rule: "The exception relevant to this case is that a district court may award fees when the losing litigant has `acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" 725 F.2d at 449, quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). See also F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974) and McCandless v. Great Atlantic and Pac. Tea Co., Inc., 697 F.2d 198, 200 (7th Cir., 1983). When a litigant has acted in bad faith, it is within the "inherent authority" of the court to award costs and attorneys' fees incurred as a consequence of that bad faith. 421 U.S. at 259; 725 F.2d at 449.
Such an award is appropriate only if "the litigant who filed the claim ... acted in subjective bad faith, and ... the claim ... was unsupported by probable cause." Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir., 1983). Bad faith has been defined as conduct "`without at least a colorable basis in law.'" 725 F.2d at 449, citing Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269 (7th Cir., 1983). Therefore, to warrant an award of attorney fees, there must be evidence that plaintiff filed an action with no colorable basis in the law; the Court finds that there is such evidence, and that an award of costs and attorney fees is warranted.
Neither plaintiff's defamation actions nor his action against Inland Steel Company for withholding of wages had a colorable basis in law. All the actions complained *1395 of were taken in accordance with statutes authorizing the collection of federal taxes, which plaintiff characterizes as the "lust of the government for revenue." Plaintiff's responses to the motions to dismiss are less legal briefs than ideological diatribes asserting, among other things, that wages are not income and that dollars are not legal tender. The Seventh circuit disposed of the former contention recently, with some asperity. United States v. Kaliboski (No. 82 CR 892, Decided April 24, 1984, 7th Cir.), n. 1. And the latter contention, like the others plaintiff advances, is at once absurd and irrelevant to the legal issues raised.
An award of fees and costs is warranted herein because it is patently obvious that this action was instituted not for the good faith reparation of an actual wrong but, rather, as a device for asserting certain philosophical beliefs regarding the tax laws of the United States and their implementation. Though plaintiff has every right to the free expression of his beliefs in this area, he does not have the right to exploit the judicial system of the United States, and resources of individual and corporate defendants thereof, to that end.
It is, therefore, ORDERED that plaintiff's action against all named defendants herein be and the same is hereby DISMISSED under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
It is further ORDERED that defendants' motions for costs and attorneys' fees be and the same are hereby GRANTED. Defendants are to submit bills of costs and affidavits as to attorneys' fees within ten days from the date of receipt of this Order.
NOTES
[1] Included in the Motion to Dismiss or in the Alternative for Summary Judgment submitted by the federal defendants are two affidavits, from Revenue Officer Van Wormer and from his supervisor, Thomas P. Bixler; these affidavits indicate that Van Wormer's actions in regard to plaintiff were at all times "procedurally and administratively in accordance with the appropriate sections of Internal Revenue Manual 5300, et seq."
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NO. 4-03-0965
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CHERYL ENGSTROM,
Plaintiff-Appellant,
v.
PROVENA HOSPITALS, an Illinois Not-For-Profit Corporation, d/b/a PROVENA COVENANT MEDICAL CENTER,
Defendant-Appellee.
)
)
)
)
)
)
)
)
Appeal from
Circuit Court of
Champaign County
No. 03L53
Honorable
Heidi Ladd,
Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In February 2003, plaintiff, Cheryl Engstrom, filed a complaint against defendant, Provena Hospitals, an Illinois not-for-profit corporation, d/b/a Provena Covenant Medical Center, seeking damages for retaliatory discharge. In April 2003, Provena filed a motion to dismiss Engstrom's complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)), arguing that she had failed to state a claim that her termination violated public policy. Following an October 2003 hearing, the trial court granted Provena's motion and dismissed Engstrom's complaint with prejudice.
Engstrom appeals, arguing that the trial court erred by granting Provena's motion to dismiss. We disagree and affirm.
I. BACKGROUND
In February 1990, Engstrom began working for Provena. During her employment, she held various positions, including emergency-room registration clerk. On October 25, 2001, Engstrom reported to Provena's director of emergency services that (1) emergency-room staff were permitting an individual, diagnosed with human immunodeficiency virus (HIV) to loiter in and around the emergency room and (2) triage nurses were providing incorrect triage times on medical records when patients were admitted to the emergency room. On November 6, 2001, Engstrom was suspended from her position, and on November 16, 2001, her employment with Provena was terminated.
In February 2003, Engstrom filed a complaint against Provena, seeking damages for retaliatory discharge. Specifically, Engstrom alleged that (1) Provena had intentionally discharged her in retaliation for her October 25, 2001, reports to Provena's director of emergency services; (2) her reports were "in furtherance of the public policy of the State of Illinois to provide for the safety and care of patients"; and (3) the discharge violated public policy.
In April 2003, Provena filed a section 2-615 motion to dismiss Engstrom's complaint, arguing that the complaint failed to state a claim that her termination violated a public policy. In September 2003, Engstrom filed a memorandum in response to Provena's motion to dismiss, in which she argued that her complaint alleged that her discharge violated a clearly mandated public policy. Specifically, Engstrom argued that her complaint alleged sufficient facts to establish that her discharge violated public policy set forth in (1) the Hospital Licensing Act (Licensing Act) (210 ILCS 85/1 through 16 (West 2002)) and (2) the hospital licensing regulations of the Illinois Administrative Code (Administrative Code) (77 Ill. Adm. Code pt. 250 (Conway Greene CD-ROM April 2001)). Following an October 2003 hearing, the trial court granted Provena's motion to dismiss and dismissed Engstrom's complaint with prejudice.
This appeal followed.
II. ANALYSIS
A. Engstrom's Claim That the Trial Court Erred
by Dismissing Her Complaint
Engstrom argues that the trial court erred by dismissing her complaint with prejudice because she stated a claim for retaliatory discharge. Specifically, she contends that her complaint sufficiently alleged that her termination for reporting (1) the presence of a nonemployee HIV-positive individual in the emergency room and (2) that emergency-room triage nurses had recorded incorrect triage times violated a clearly mandated public policy. We disagree.
A section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2002)) attacks the legal sufficiency of a complaint by alleging defects on the face of the complaint.
Vitro v. Mihelcic
, 209 Ill. 2d 76, 81, 806 N.E.2d 632, 634 (2004);
Armstrong v. Snyder
, 336 Ill. App. 3d 567, 568, 783 N.E.2d 1101, 1103 (2003). When ruling on a section 2-615 motion, a court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that may be drawn therefrom.
Vitro
, 209 Ill. 2d at 81, 806 N.E.2d at 634;
Armstrong
, 336 Ill. App. 3d at 569, 783 N.E.2d at 1103. Our supreme court has determined the critical inquiry regarding a section 2-615 motion to be "whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted."
Vitro
, 209 Ill. 2d at 81, 806 N.E.2d at 634. We review
de
novo
an order granting a section 2-615 motion to dismiss
.
Vitro
, 209 Ill. 2d at 81, 806 N.E.2d at 634;
Armstrong
, 336 Ill. App. 3d at 569, 783 N.E.2d at 1103.
"The tort of retaliatory discharge is a limited and narrow exception to the general rule that an at-will employee is terminable at any time for any or no cause."
Geary v. Telular Corp.
, 341 Ill. App. 3d 694, 700, 793 N.E.2d 128, 133 (2003);
Palmateer v. International Harvester Co.
, 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878 (1981)
. Our supreme court has emphasized the goal of restricting the tort of retaliatory discharge. See
Fisher v. Lexington Health Care, Inc.
, 188 Ill. 2d 455, 467, 722 N.E.2d 1115, 1121 (1999) ("this court has consistently sought to restrict the common[-]law tort of retaliatory discharge"). To establish a cause of action for retaliatory discharge, a claimant must show the following: (1) claimant was discharged in retaliation for claimant's activities and (2) the discharge violated a clearly mandated public policy.
Jacobson v. Knepper & Moga, P.C.
, 185 Ill. 2d 372, 376, 706 N.E.2d 491, 493 (1998);
Chicago Commons Ass'n v. Hancock
, 346 Ill. App. 3d 326, 328, 804 N.E.2d 703, 705 (2004)
. The supreme court's test for determining if a complaint states a valid cause of action for retaliatory discharge is "whether the public policy clearly mandated by the cited provisions is violated by the plaintiff's discharge."
Barr v. Kelso-Burnett Co.
, 106 Ill. 2d 520, 527, 478 N.E.2d 1354, 1357 (1985)
.
1.
Engstrom's
Report
Regarding
the
HIV
-
Positive
Individual
in
the
Emergency
Room
Engstrom first contends that her complaint sufficiently alleged that her termination for reporting the presence of an HIV-positive individual in the emergency room violated a public policy in Illinois that "patients at hospitals have a right to privacy and confidentiality." Specifically, she asserts that this public policy is set forth in (1) the Medical Patient Rights Act (Patient Rights Act) (410 ILCS 50/0.01 through 99 (West 2002)), (2) the Licensing Act (210 ILCS 85/1 through 16 (West 2002)), and (3) certain hospital licensing requirements of the Administrative Code (77 Ill. Adm. Code pt. 250 (Conway Greene CD-ROM April 2001)).
Initially, we note that Engstrom cites the Patient Rights Act (410 ILCS 50/0.01 through 99 (West 2002)) for the first time in her brief to this court. She did not cite the Patient Rights Act in either her complaint or response to Provena's motion to dismiss. Accordingly, Engstrom has forfeited any argument on appeal regarding that act, and we will not address her argument further. See
American Standard Insurance Co. v. Basbagill
, 333 Ill. App. 3d 11, 15, 775 N.E.2d 255, 259 (2002) ("[a] party must recover, if at all, according to the case he has made for himself by his pleadings"); see also
Groark v. Thorleif Larsen & Son, Inc.
, 231 Ill. App. 3d 61, 67, 596 N.E.2d 78, 82 (1992) (providing that "[f]ailure to propose a particular theory before the circuit court and then to advance it before the appellate court is unfair to the other party, who had no opportunity to present pertinent rebuttal evidence on such theory which could have had a bearing on the disposition of the case").
Engstrom also relies on sections 6.14b and 6.17 of the Licensing Act (210 ILCS 85/6.14b, 6.17 (West 2002)), as well as certain hospital licensing regulations (77 Ill. Adm. Code §250.250 (Conway Greene CD-ROM April 2001)), as support for her claim that a public policy of protecting patient confidentiality was violated when Provena terminated her employment for reporting the presence of an HIV-positive individual in and around the emergency room. Section 6.14b of the Licensing Act provides that confidential patient records should not be available for public inspection in a way that identifies patients (210 ILCS 85/6.14b (West 2002)). Section 6.17 of the Licensing Act provides, in pertinent part, that patient information should be protected from inappropriate disclosure (210 ILCS 85/6.17(a), (d) (West 2002)). Section 250.250 of Title 77 of the Administrative Code sets forth certain hospital visitation rules (77 Ill. Adm. Code §250.250 (Conway Greene CD-ROM April 2001)).
The trial court, when addressing this issue at the October 2002 hearing on Provena's motion to dismiss, stated, in pertinent part, as follows:
"It would be a leap to suggest the concern [regarding an HIV-positive individual in and around the emergency room] somehow creates an inference that public records will be disseminated simply because there is an individual identified as HIV positive in the [emergency room] without authority to be there, but there is nothing in the complaint or any of the facts alleged that comes close to rising to the level of invoking the public policy[,] and I believe that portion of the complaint should be stricken with prejudice."
We agree with the trial court. Engstrom’s attempt to characterize her reporting of the presence of an HIV-positive individual in and around the emergency room as furthering the public policy of protecting patient confidentiality is an inferential leap. Indeed, Engstrom did not allege in her complaint that patient confidentiality was a concern when she made her October 25, 2001, report. In addition, she failed to allege (or point out in her brief to this court, for that matter) (1) how her report was related to patient confidentiality or (2) any instances in which patient confidentiality was or would be violated by the presence of the particular HIV-positive individual in the emergency room. We thus conclude that the court did not err by dismissing this portion of Engstrom's complaint for failing to allege a violation of a clearly mandated public policy.
2.
Engstrom's
Report
Regarding
the
Recording
of
Incorrect
Triage
Times
on
Patient
Records
Last, Engstrom contends that her complaint sufficiently alleged that her termination for reporting that emergency-room triage nurses had recorded incorrect triage times on patient's medical records violated a public policy in Illinois that hospital employees keep accurate medical records. Specifically, she asserts that this public policy is set forth in (1) section 6.17(a) of the Licensing Act, which provides that hospitals must develop medical records for all patients (210 ILCS 85/6.17(a) (West 2002)), and (2) certain portions of part 250 of Title 77 of the Administrative Code, which provide that (a) accurate medical records shall be maintained on all patients and (b) the minimum requirements for medical record content are patient identification and admission information (77 Ill. Adm. Code §§250.720, 250.980, 250.1510 (Conway Greene CD-ROM April 2001)). We disagree.
The trial court, when addressing this issue at the hearing on the motion to dismiss, stated, in pertinent part, as follows:
"With regard to the suggestion that [Engstrom] reported incorrect triage times, it's not clear what that means, or the significance or the magnitude of those errors being complained of, but there is simply no suggestion or allegation in the facts alleged as the basis that there was any impact on the care of the patients, that it rose to the level of falsifying or deliberat[ely] affecting the care or treatment of the patients.
***
Administrative allegations that [Engstrom] indicates were violated[] do not rise to the level of showing the existence of a clearly mandated public policy. With regard to that, there is certainly nothing that affects the rights or the citizens of the State of Illinois collectively, and under the facts alleged in the complaint, there's no public policy that has either been articulated or affected by the allegations raised."
We agree with the trial court. Engstrom's complaint failed to allege how Provena's discharge of her for reporting the failure to report correct triage times violated a clearly mandated public policy of Illinois. Although Engstrom alleged that emergency-room triage nurses reported incorrect triage times in patient medical records, she did not allege how such reporting of incorrect triage times violated Illinois public policy or even compromised Provena's patients' health.
Further, we agree with Provena that the portions of the Licensing Act and the Administrative Code on which Engstrom relies do not even mention triage times as an element that must be included in patient's medical records. None of the sections on which Engstrom relies articulates a clear public policy of the State of Illinois. We thus conclude that the trial court did not err by dismissing this portion of Engstrom's complaint for failing to allege the violation of a clearly mandated public policy.
III. CONCLUSION
For the reasons stated, we affirm the trial court's judgment.
Affirmed.
McCULLOUGH, J., concurs.
MYERSCOUGH, J., dissents.
JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent and would reverse the trial court.
Section 250.250 of the Title 77 of Administrative Code states in pertinent part, as follows:
"(c) No visitor shall knowingly be admitted who has a known infectious disease, who has recently recovered from such a disease, or who has recently had contact with such a disease." 77 Ill. Adm. Code §
250.250(c) (Conway Greene CD-ROM April 2001)
In the instant case, plaintiff alleged in her complaint that defendant had intentionally discharged her in retaliation for her reporting the emergency-room staff who permitted an individual who was infected with HIV to loiter in and around the emergency room. Plaintiff then listed several statutes and regulations, including Title 77, section 250.250, of the Administrative Code, to support her claim that such a discharge violates clearly mandated public policy. Because allowing an HIV-positive patient to loiter in and around the emergency room clearly violates the above regulation, plaintiff pleaded a cause of action for retaliatory discharge.
I further disagree with the trial court’s conclusion that the recording of incorrect triage time does not have "any impact on the care of patients" and defendant’s discharge of plaintiff based on her reporting of the incorrect patients’ records affects "no public policy."
In her complaint, plaintiff stated several public policies that were implicated by the alleged retaliatory discharge: (1) section 6.17(a) of the Licensing Act, which provides that hospitals must develop medical records for all patients (210 ILCS 85/6.17(a) (West 2002)) and (2) certain portions of part 250 of Title 77 of the Administrative Code, which provide that (a) accurate medical records shall be maintained on all patients and (b) the minimum requirements for medical record content are patient identification and admission information (77 Ill. Adm. Code §§250.720, 250.980, 250.1510
(Conway Greene CD-ROM April 2001)
). The majority is correct in pointing out the above provisions do not specifically include triage time as an element that must be included in patients’ medical records. However, hospital staffs’ recording of erroneous triage times certainly violates the requirement of Title 77, part 250, of Administrative Code that appropriate and accurate medical record should be established for all patients. Further, such erroneous recording certainly has impact on the care of patients. Defendant’s alleged retaliatory discharge of plaintiff based on such reporting, therefore, violates a clearly mandated public policy.
For the above reasons, the trial court erred in dismissing plaintiff’s complaint, and I would reverse.
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FILED
United States Court of Appeals
Tenth Circuit
May 24, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHNNY LEE ROBINSON,
Petitioner–Appellant, No. 11-6306
v. (D.C. No. 5:10-CV-00836-D)
JAMES RUDEK, (W.D. Oklahoma)
Respondent–Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition. Following a jury trial,
Petitioner was convicted by an Oklahoma state court of assault and battery with a
dangerous weapon after former convictions. His conviction and sentence were affirmed
on direct appeal. He then filed two applications for post-conviction relief, both of which
were denied. In denying relief on Petitioner’s second application for post-conviction
relief, the Oklahoma Court of Criminal Appeals held that the claims raised in this
application were procedurally barred because they could have been and were not raised in
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the first application for post-conviction relief.
In the instant habeas petition, Petitioner argued that (1) he was not mentally
competent at the time of his trial; (2) he was denied his right to appeal the prior
convictions used to enhance his sentence; (3) his conviction violated his Double Jeopardy
rights; (4) his sentence violated the Eighth Amendment; and (5) he was denied effective
assistance of appellate counsel because counsel mistakenly referred to his conviction as
one for first-degree murder rather than assault and battery. The matter was referred to a
magistrate judge, who concluded that all but the first claim were procedurally barred
because they were raised for the first time either in the second application for state post-
conviction relief or in the instant federal habeas petition. See Smallwood v. Gibson, 191
F.3d 1257, 1267-69 (10th Cir. 1999). As for the competency claim, the magistrate judge
recommended denial of this claim on the merits. The magistrate judge concluded that the
evidence in the record did not support this claim and, indeed, that Petitioner’s trial
testimony demonstrated his ability to understand and participate in the proceedings
against him. After considering Petitioner’s objections, the district court adopted the
magistrate judge’s recommendation and denied relief.
After thoroughly reviewing the record and Petitioner’s filings on appeal, we
conclude that reasonable jurists would not debate the district court’s ruling. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Our independent review of the record persuades us
that reasonable jurists would not debate the magistrate judge’s thorough explanation of
why relief should be denied, nor would reasonable jurists debate the district court’s
-2-
decision to adopt that recommendation. For substantially the same reasons given by the
magistrate judge and district court, we DENY Petitioner’s request for a certificate of
appealability and DISMISS the appeal. Petitioner’s request for the appointment of
counsel to represent him on appeal is DENIED. Petitioner’s motion for leave to proceed
in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
-3-
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J-A30022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID TATE
Appellant No. 2725 EDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006069-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 17, 2014
Appellant, David Tate, appeals from the September 13, 2013
aggregate judgment of sentence of eight and one-half to 17 years’
imprisonment, after he entered an open guilty plea to one count each of
firearms not to be carried without a license, carrying firearms in public in
Philadelphia, and possession of firearm prohibited.1 After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On January 8, 2011, in the City and County of
Philadelphia, [Appellant] was stopped in his
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 6105(a)(1), respectively.
J-A30022-14
automobile on 11th and Thompson Street.
[Appellant] was observed attempting to hide a .40
caliber Glock handgun between the console and the
front passenger seat. The handgun was loaded with
15 live rounds and a ballistics test determined the
weapon to be operable. As a result of a prior murder
conviction, [Appellant] was ineligible to possess a
firearm.
Testimony elicited during the sentencing
hearing provided th[e trial] court with a sufficient
understanding of [Appellant], his crimes, and his
personal background, so that a proper sentence
could be fashioned, one which is consistent with the
protection of the public, the gravity of the offense as
it relates to the impact on the life of the victim, and
the community, and the rehabilitative needs of
[Appellant].
Trial Court Opinion, 2/25/14, at 2.
On June 9, 2011, the Commonwealth filed an information charging
Appellant with the above-mentioned offenses. On September 5, 2012,
Appellant entered an open guilty plea to all charges. On February 6, 2013,
the trial court imposed an aggregate sentence of eight and one-half to 17
years’ imprisonment. Specifically, the trial court sentenced Appellant to
three and one-half to seven years’ imprisonment for firearms not to be
carried without a license and five to ten years’ imprisonment for possession
of a firearm prohibited, with both sentences to run consecutively to each
other. The trial court imposed no further penalty for carrying firearms in
public in Philadelphia. On February 15, 2013, Appellant filed a timely post-
sentence motion. On February 19, 2013, Appellant filed an untimely
supplemental post-sentence motion. On March 19, 2013, the trial court
-2-
J-A30022-14
entered an order vacating Appellant’s sentence and scheduling a hearing.2
The trial court conducted a resentencing hearing on September 13, 2013, at
the conclusion of which the trial court re-sentenced Appellant to the same
sentence it had imposed on February 6, 2013. On September 20, 2013,
Appellant filed a timely notice of appeal.3
On appeal, Appellant presents the following issue for our review.
Did the [trial] court abuse its discretion in sentencing
[Appellant] in the aggravated range of the
sentencing guidelines by improperly emphasizing
conduct for which [Appellant] had been acquitted
and conduct for which [Appellant] had been charged
but not yet convicted, while not giving proper weight
to [Appellant]’s positive conduct, background, work
history and family support, resulting in a manifestly
excessive sentence for the crime of gun possession?
Appellant’s Brief at 4.
____________________________________________
2
We note the language of the trial court’s order is confusing. The trial
court’s order states the following.
AND NOW, this 19th day of March, 2013, after
consideration of the Order Vacating Denial of Motion
for Reconsideration of Sentence by the Attorney for
the Defendant it is ORDERED that the Order Vacating
Denial of Motion For Reconsideration of Sentence is
GRANTED.
Listed for status on 5/17/13 in courtroom 608. …
Trial Court Order, 3/19/13, at 1. Given the procedural posture of this case,
after the trial court filed this order, we believe the trial court meant to
vacate Appellant’s sentence pending a hearing on his post-sentence motion.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
-3-
J-A30022-14
We first note that Appellant’s sole issue on appeal pertains to the
discretionary aspects of his sentence. See Appellant’s Brief at 7. It is
axiomatic that in this Commonwealth “[t]here is no absolute right to appeal
when challenging the discretionary aspect of a sentence.” Commonwealth
v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an
appellant forwards an argument pertaining to the discretionary aspects of
the sentence, this Court considers such an argument to be a petition for
permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. Super. 2014) (en banc) (citation omitted). In order to reach the
merits of a discretionary sentencing issue, this Court is required to conduct a
four-part analysis to determine whether a petition for permission to appeal
should be granted.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a [post-
sentence motion], Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(citation omitted).
In the case sub judice, Appellant has filed a timely notice of appeal
and has included a Rule 2119(f) statement in which he raises two distinct
sub-issues. First, Appellant argues that the trial court abused its discretion
-4-
J-A30022-14
by “fail[ing] to give proper consideration to the mitigating evidence of
[Appellant]’s work and family history.” Appellant’s Brief at 7. Second,
Appellant avers the trial court abused its discretion by improperly
considering conduct for which he had been charged but not convicted and
conduct for which he had been acquitted. Id.
Appellant’s first argument regarding the trial court’s failure to consider
certain mitigating circumstances was not presented to the trial court at
either sentencing proceeding or in any of the post-sentence motions he
filed.4 Therefore, we deem this argument waived on appeal for failure to
preserve it below. See Trinidad, supra. Appellant’s remaining issues
concerning the trial court’s alleged consideration of acquitted and charged
conduct were raised at one of the sentencing proceedings below. See N.T.,
2/6/13, at 6, 40-45; N.T., 9/13/13, at 16. As a result, we proceed to
____________________________________________
4
We disagree with the Commonwealth’s assertion that Appellant was
required to file another post-sentence motion within ten days of being
resentenced. See Commonwealth’s Brief at 7, 7 n.6. As Appellant was
given the exact same sentence, his arguments on appeal necessarily
complain about the discretionary aspects of that same sentence. Therefore,
we may consider any argument raised on the record at either sentencing
proceeding or in Appellant’s first timely post-sentence motion. See, e.g.,
Pa.R.Crim.P. 720, cmt. (stating, “[o]nce a sentence has been modified or
reimposed pursuant to a motion to modify sentence under paragraph
(B)(1)(a)(v) … a party wishing to challenge the decision on the motion does
not have to file an additional motion to modify sentence in order to preserve
an issue for appeal, as long as the issue was properly preserved at the time
sentence was modified or reimposed[]”).
-5-
J-A30022-14
determine whether Appellant has raised a substantial question for our
review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d
75 (Pa. 2013). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citations omitted). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).
In the case sub judice, Appellant avers that the trial court improperly
considered conduct for which Appellant had been acquitted, and conduct for
which Appellant had been accused but not convicted. Appellant’s Brief at 7.
We conclude that these allegations of the trial court considering improper
factors raise a substantial question for our review. See Commonwealth v.
Dowling, 990 A.2d 788, 792 (Pa. Super. 2010) (stating, “[a]ppellant’s claim
the trial court relied on an improper factor raises a substantial question
permitting review[]”) (citation omitted). We will therefore proceed to review
the merits of Appellant’s two remaining sub-issues.
-6-
J-A30022-14
We begin by noting our well-settled standard of review.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted).
In this case, Appellant alleges that the trial court improperly took into
account conduct of Appellant for which he was never convicted.
Here, at sentencing, the [trial] court overemphasized
two separate instances of unproven criminal conduct
on the part of [Appellant] that should not have been
at issue in this case. First the [trial] court weighed
heavily the evidence of an arrest for [Appellant]’s
alleged assistance in a straw purchase of a firearm.
However, the charges against [Appellant] were
dismissed by a judge at a preliminary hearing, as the
evidence against him was so incredibly lacking.
Second, the [trial] court considered a pending case
against [Appellant] for an alleged stabbing.
[Appellant] had not been convicted of any offense
related to that incident at the time of sentencing.
Appellant’s Brief at 8-9 (internal citations omitted). As a general matter,
this Court has explained that “[a] judge may consider unadjudicated arrests
in sentencing a defendant, so long as the arrests are not regarded as
establishing criminal conduct, and even arrests that result in acquittals, if
-7-
J-A30022-14
the judge is aware of the acquittal.” Commonwealth v. Bowers, 25 A.3d
349, 356 (Pa. Super. 2011), appeal denied, 51 A.3d 837 (Pa. 2012).
At the first sentencing hearing, Appellant objected to the trial court
considering a video surveillance tape showing his presence in a gun store.
N.T., 2/6/13, at 25. The video shows Appellant assisting someone in making
a straw purchase of a gun. Id. According to the Commonwealth, “[t]hree
days later … [the gun was] found on the bathroom floor at the Beaumont
Lounge … [a]nd [Appellant] is outside that door.” Id. Also, the
Commonwealth pointed to an incident involving a stabbing, and showed a
photograph of the complainant “patched up and hooked up to tubes[.]” Id.
at 41. Appellant argues it is the consideration of this evidence that entitles
him to resentencing. Appellant’s Brief at 8-9.
However, the trial court noted that it did not consider any of the
above-mentioned evidence as criminal conduct. Trial Court Opinion,
2/25/14, at 5-6. Specifically, the trial court explained the rationale for its
sentence as follows.
[T]his court clearly indicated–on the record–after a
lengthy sentencing hearing what was and was not
consider[ed] when fashioning a sentence for
[Appellant]. Specifically, in reference to the video
from the firearms dealer and [the] open aggravated
assault case, this court stated:
THE COURT: It’s not a question of criminal
violation; he’s on bail for having a .40 [c]aliber
gun illegally, because he can’t have a gun. So
he goes into the gun shop and he helps
somebody purchase it. It’s not a question of if
-8-
J-A30022-14
he violated the law per se by going in there.
But, perhaps, that somebody–and you are
arguing it’s only for protection, and he’s a good
person, I’m hearing all that. There is a
dichotomy here, and we will deal with that at
the end. But, he goes into the gun shop and
helps somebody purchase a gun.
MR. HETZNECKER (Defense Counsel): Bad
judgment. I agree.
THE COURT: Well, that goes to the issue of
sentencing and character. And you are asking
me to take into account, which I should, all the
good things he’s done. All the help he has
done. I heard from the stepfather and mother,
all the thing he does for the family. I can also
take into account that an individual with a prior
murder conviction for shooting somebody, and
[who] is facing a very serious gun possession
case, while on bail in that case, went into a
gun shop with somebody.
MR. HETZNECKER: If that is the extent of it
without the other background information.
Now you do have the background information.
What I did not appreciate was that the
Commonwealth presenting a snapshot which
was an inaccurate portray [sic] on the case
presented at trial, including the fact that the
motion to suppress, outside the Beaumont
Lounge was granted.
THE COURT: I’m not interested in the
Beaumont Lounge issue. What was relevant is
that he was in a gun shop and assisting
somebody in purchasing a gun, which is not a
violation of the law and is not here to be
considered a criminal act, but as an issue of
character and behavior and conduct while on
bail.
[…]
-9-
J-A30022-14
THE COURT: I don’t know what drives you, I
don’t know what happened to you in the past.
I read the mental health, read the presentence
report, all of this is a tragedy. Tragedy for
you, your family and the community. But the
gun violence is also a tragedy for people. I
don’t know why you didn’t learn from the
murder conviction, I don’t know why, despite
other incidents before my case you didn’t
learn. I hope that you will learn from this, but
really it’s up to you, and I hope that when you
come out, you will understand that you got to
walk away from criminal behavior. If someone
angers you, you have to walk away. You can’t
have anything else to do with guns. In your
car, in a house, on the street, in the gun shop,
or anything else. Because of your background
and because of what occurred, guns are toxic
to you, radioactive. And you cannot be around
guns. Mr. Hetznecker made a very eloquent
argument on your behalf. The problem is that
your history is the problem. And I think you
understand that. And that’s the basis of my
sentence. I considered the presentence,
mental health, prior record score, arguments
of counsel, letters that were presented and the
appropriate and relevant evidence about what
occurred before. I did not consider the
Beaumont Lounge, that was a not guilty, and
that’s not the issue and the car incident is only
for the fact that the parole board did violate
you, and you were in a car with guns. And, in
terms of your current case, that’s only an issue
regarding your being on bail at the time,
getting arrested.
Trial Court Opinion, 2/25/14, at 5-6, quoting N.T., 2/6/13, 35-36, 57-58
(emphasis in original).
After careful review, we conclude Appellant is not entitled to relief.
Our review of the sentencing hearing reveals that the trial court did not
- 10 -
J-A30022-14
consider either incident “as establishing criminal conduct[.]” Bowers,
supra. Furthermore, consistent with Bowers, the trial court was made
aware of, and acknowledged, Appellant’s acquittal. Furthermore, as to
Appellant’s pending case, the trial court stated that it was only considering
its existence to show that Appellant was arrested while he was released on
bail for the case at bar. Trial Court Opinion, 2/25/14, at 6. There is no
indication that the trial court based the instant sentence on any actual
acquitted charge or uncharged criminal conduct. As a result, we conclude
the trial court did not abuse its discretion in sentencing Appellant in this
case. See Raven, supra.
Based on the foregoing, we conclude Appellant’s sole issue on appeal
does not entitle him to relief. Accordingly, the trial court’s September 13,
2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
- 11 -
| {
"pile_set_name": "FreeLaw"
} |
121 Wn.2d 373 (1993)
850 P.2d 1332
THE STATE OF WASHINGTON, Respondent,
v.
DAVID P. SCHMUCK, Petitioner.
No. 58987-9.
The Supreme Court of Washington, En Banc.
May 6, 1993.
The Norbut Law Firm, by Gregory P. Norbut, for petitioner.
C. Danny Clem, Prosecuting Attorney, and Pamela B. Loginsky, Deputy, for respondent.
John C. Sledd, Tribal Attorney, on behalf of the Suquamish Indian Tribe, amicus curiae for respondent.
Christine O. Gregoire, Attorney General, and John W. Hough, Deputy, amicus curiae for respondent.
Robert S. Mueller III, Assistant Attorney of the United States, and John T. Bannon, Jr., amicus curiae for respondent.
JOHNSON, J.
At issue is whether an Indian tribal police officer has authority to stop and detain a non-Indian who allegedly violates state and tribal law while traveling on a public road within a reservation until that person can be turned over to state authorities for charging and prosecution. Petitioner David P. Schmuck was found guilty of driving while intoxicated on the Port Madison Reservation after being detained by a Suquamish tribal officer and turned over *377 to the Washington State Patrol. Kitsap County Superior Court denied his appeal and affirmed the conviction. We affirm.
I
The parties have stipulated to the facts. Clerk's Papers, at 132-41, 146-50. Suquamish Tribal Police Officer Bailey is commissioned by the Suquamish Indian Tribe (Tribe) to enforce tribal laws within the geographic confines of the Port Madison Reservation (Reservation). The Port Madison Reservation is located in Kitsap County, Washington.
On September 2, 1991, at approximately 7:30 p.m., Tribal Officer Bailey observed a blue Ford pickup truck traveling southbound on Brockton Avenue, a road running through the Reservation. The truck was obviously exceeding the posted 25 m.p.h. speed limit; the officer's radar reading indicated 36 m.p.h. Officer Bailey turned on his emergency lights and pursued the truck, which responded by speeding up. Officer Bailey turned on his siren and continued to follow the truck down multiple streets of the Reservation. After running a stop sign and continuing to accelerate, the truck finally came to a stop on the side of the road.
Officer Bailey approached the pickup truck, advised the driver of the reason for the stop, and requested his driver's license. The license identified the driver as petitioner, David P. Schmuck (Schmuck). Schmuck is not an enrolled member of any recognized Indian tribe, maintains no social ties with any tribe, and is not aware of any Indian ancestors.
Schmuck smelled of intoxicants. Officer Bailey asked him if he had been drinking, and Schmuck said, "I've had a few". Officer Bailey then asked him if he would be willing to take a few field sobriety tests. Schmuck declined. Because Schmuck was a non-Indian, Officer Bailey informed him that he would be detained until the Washington State Patrol could respond[1]*378 to their location to investigate whether Schmuck had been driving while under the influence of alcohol or drugs (DWI).
After some discussion, Schmuck agreed to perform some field sobriety tests.[2] After reviewing the results, Officer Bailey again advised Schmuck that he was being detained until the State Patrol arrived. At approximately 7:40 p.m., Officer Bailey requested assistance from the Washington State Patrol. Trooper Clark arrived at the scene around 8 p.m.
Trooper Clark contacted Schmuck, who was sitting in the truck, and detected a strong odor of intoxicants. Schmuck's eyes were bloodshot and watery. The trooper asked Schmuck to step from the vehicle; Schmuck complied very slowly and walked across the street to Clark's patrol car with a zigzag staggering motion.
Schmuck performed four field sobriety tests and failed them all. Based upon Officer Bailey's report of Schmuck's driving, Schmuck's performance on the field sobriety tests, and the smell of liquor, Trooper Clark advised Schmuck of his constitutional rights and placed him under arrest for DWI. Schmuck was transported to Kitsap County Jail, where he was again advised of his constitutional rights and implied consent warnings. Schmuck voluntarily waived his rights and agreed to answer questions on the alcohol arrest report form. He stated he had consumed a couple of beers, but did not believe his driving was affected by his alcohol use. A BAC Verifier DataMaster was administered at 9:11 p.m., resulting in readings of .17 and .17 grams of alcohol per 210 liters of breath. Clerk's Papers, at 148-50.
*379 On December 23, 1991, judgment was entered against Schmuck in Kitsap County District Court for driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. Kitsap County Superior Court denied Schmuck's appeal and affirmed his DWI conviction, holding that the Suquamish tribal officer had authority to stop and detain Schmuck. This court granted direct review pursuant to RAP 4.2(a)(4).
II
We address three issues presented for review. First, does an Indian tribal officer have inherent authority to stop a non-Indian driving a motor vehicle on a public road within the reservation to investigate a possible violation of tribal law? Second, does a tribal officer have inherent authority to detain a non-Indian motorist who has allegedly violated state and tribal law while on the reservation until he or she can be turned over to state authorities for charging and prosecution? Third, if an Indian tribe does have such inherent authority, has that authority been divested by the State's enactment of RCW 37.12.010 assuming criminal and civil jurisdiction over the operation of motor vehicles on Indian territory and reservations?
We begin by noting that the Suquamish Indian Tribe did not assert authority to prosecute Schmuck for driving while intoxicated, speeding, or running a stop sign. Indian tribal courts do not have inherent jurisdiction to try and punish non-Indians who commit crimes on their land. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 55 L.Ed.2d 209, 98 S.Ct. 1011 (1978). Instead, criminal offenses occurring on a reservation by non-Indians are subject to prosecution by state or federal governments, depending on the offense. Thus, the question presented is not whether the Suquamish Indian Tribe had authority to prosecute Schmuck, but rather, whether the Tribe had authority to stop and detain Schmuck until he could be turned over to state governmental officials who did have authority to prosecute.[3]
*380 Schmuck first argues that Tribal Officer Bailey did not have inherent authority to stop Schmuck's vehicle. We disagree. A review of United States Supreme Court precedent indicates that Indian tribes are limited sovereigns which retain the power to prescribe and enforce internal criminal and civil laws. This power necessarily includes the authority to stop a driver on the reservation to investigate a possible violation of tribal law and determine if the driver is an Indian, subject to the jurisdiction of that law.
[1] Jurisdictional disputes on Indian reservations often involve questions of overlapping federal, state, and tribal jurisdiction. See F. Cohen, Federal Indian Law ch. 6 (1982); Note, Falling Through the Cracks After Duro v. Reina: A Close Look at a Jurisdictional Failure, 15 U. Puget Sound L. Rev. 229, 230-35 (1991). Whether the Suquamish Indian Tribe has authority to stop and detain a non-Indian necessarily turns on an analysis of the limited sovereignty retained by the Tribe.
[2] In analyzing issues of Indian sovereignty, "[i]t must always be remembered that the various Indian tribes were once independent and sovereign nations...." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 36 L.Ed.2d 129, 93 S.Ct. 1257 (1973). However, when Indian tribes were incorporated into United States territory and accepted protection by the federal government, they necessarily lost some of their sovereign powers:
The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.
United States v. Wheeler, 435 U.S. 313, 323, 55 L.Ed.2d 303, 98 S.Ct. 1079 (1978).
*381 [3-6] Despite their limited sovereignty, Indian tribes also have a dependent status, in which some aspects of their sovereignty have been either expressly or implicitly divested. Normally, "[a] basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens". Duro v. Reina, 495 U.S. 676, 685, 109 L.Ed.2d 693, 110 S.Ct. 2053 (1990). However, tribes can no longer be described as sovereigns in this sense. Rather, tribes only retain that sovereignty which is needed to control the tribe's internal relations and to preserve their own unique customs and social order. Duro, 495 U.S. at 685-86.
Thus, although the status of tribes is that of a limited sovereign, tribes still retain their power of internal self-governance. Duro, 495 U.S. at 686. This power includes "the power to prescribe and enforce internal criminal laws". Wheeler, 435 U.S. at 326. This power is part of a tribe's "primeval sovereignty", that is, "part of [the tribe's] own retained sovereignty". Wheeler, 435 U.S. at 328. This inherent authority is the source of an Indian tribe's power to create and administer an internal criminal justice system, Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.1975), including "the inherent power to prescribe laws for their members and to punish infractions of those laws". Wheeler, 435 U.S. at 323.
An Indian tribe may also regulate the conduct of its members on the reservation. Montana v. United States, 450 U.S. 544, 564, 67 L.Ed.2d 493, 101 S.Ct. 1245 (1981). For example, the Ninth Circuit has acknowledged a tribe's authority to enact a civil traffic code, including speed limits, which it can enforce against on-reservation Indians. See Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 149 (9th Cir.1991), cert. denied, ___ U.S. ___, 118 L.Ed.2d 412, 112 S.Ct. 1704 (1992). Moreover, where a tribe has shown that its own highway safety laws and institutions are adequate for self-government, the Ninth Circuit held the State may not assert jurisdiction to enforce the State's civil traffic regulations, such as speed limits, against tribal members *382 operating motor vehicles upon public roads within the reservation. Confederated Tribes, 938 F.2d at 149.[4]
In the exercise of this recognized jurisdiction, the Suquamish Indian Tribe enacted various ordinances regulating its members' conduct upon the Reservation's roads and highways. These ordinances are codified in the Suquamish Tribal Law and Order Code (S.T.C.). These ordinances include S.T.C. 10.1.19, which authorizes tribal officers to issue citations or arrest a tribal member for driving while intoxicated or driving in a reckless and negligent manner. S.T.C. 10.1.33 and 10.1.21 require tribal members to observe posted speed limits and obey stop signs. See also S.T.C. 10.1.9 (authority to issue notice of traffic infraction).
The Suquamish Indian Tribe employs police officers, including Officer Bailey, to enforce its tribal law and order code. "The propriety of [operating] ... tribal police forces has been recognized, presently and in the past, by the federal government". An Indian tribe "may employ police officers to aid in the enforcement of tribal law and in the exercise of tribal power". Ortiz-Barraza, 512 F.2d at 1179.
Fundamental to enforcing any traffic code is the authority by tribal officers to stop vehicles violating that code on roads within a reservation. In this case, Officer Bailey was exercising the Tribe's authority to enforce its traffic code when he observed the speeding pickup truck and pursued it through the streets of the Reservation. When he first saw the truck, he had no means of ascertaining whether the driver was an *383 Indian. Only by stopping the vehicle could he determine whether the driver was a tribal member, subject to the jurisdiction of the Tribe's traffic code. The alternative would put tribal officers in the impossible position of being unable to stop any driver for fear they would make an unlawful stop of a non-Indian. Such a result would seriously undercut the Tribe's ability to enforce tribal law and would render the traffic code virtually meaningless. It would also run contrary to the "well-established federal `policy of furthering Indian self-government.'" Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62, 56 L.Ed.2d 106, 98 S.Ct. 1670 (1978) (quoting Morton v. Mancari, 417 U.S. 535, 551, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974)).
We hold Suquamish Tribal Officer Bailey had the requisite authority to stop Schmuck to investigate a possible violation of the Suquamish traffic code and to determine if Schmuck was an Indian, subject to the code's jurisdiction.
III
Schmuck next contends that even if Tribal Officer Bailey had authority to stop him, Officer Bailey did not have inherent authority to detain him once Bailey determined that Schmuck was a non-Indian. Schmuck contends this detention violated the Washington State Constitution, article 1, section 7, in which "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law". (Italics ours.) We disagree. The Suquamish Indian Tribe expressly retained in its treaty the Tribe's inherent authority to detain offenders and turn them over to government officials for prosecuting. Moreover, this authority has been recognized by both the United States Supreme Court and the Ninth Circuit.
In 1855, the Tribe entered into the Treaty of Point Elliott (Treaty), Jan. 22, 1855, 12 Stat. 927, and agreed to settle on a 7,276-acre reservation near Port Madison, Washington. Oliphant, 435 U.S. at 192-93. The Port Madison, Reservation is a checkerboard consisting of tribal community land, allotted *384 Indian land (so-called "Indian Trust Land"), property held in fee simple by non-Indians, and various roads and public highways maintained by Kitsap County. Oliphant, 435 U.S. at 193. According to Oliphant, approximately 37 percent of the Reservation is Indian land, subject to the trust status of the United States. The other 63 percent is owned in fee simple by non-Indians. Oliphant, 435 U.S. at 193 n. 1. However, all of the property within the geographic boundaries of the Reservation, including the land owned by non-Indians, is defined in federal law as "Indian country". 18 U.S.C. § 1151(a); Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 357-58, 7 L.Ed.2d 346, 82 S.Ct. 424 (1962).
[7] Prior to signing the Treaty, the Suquamish Indian Tribe began its "relationship with the Federal Government as a sovereign power" and its "criminal jurisdiction, no less than its civil jurisdiction, was that of any sovereign power". Powers of Indian Tribes, 55 Interior Dec. 14, 19, 57, 1 Opinions of Solicitor, Department of Interior, Indian Affairs 445, 447, 472 (Oct. 25, 1934). By the Treaty and by Congress' plenary legislative authority over Indians, e.g., Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 83-84, 51 L.Ed.2d 173, 97 S.Ct. 911 (1977), the Tribe gave up some, but not all, of its territory and sovereignty. The Treaty was "not a grant of rights to the Indians, but a grant of rights from them a reservation of those not granted". (Italics ours.) United States v. Winans, 198 U.S. 371, 381, 49 L.Ed. 1089, 25 S.Ct. 662 (1905); United States v. Moore, 62 F. Supp. 660, 666 (W.D. Wash. 1945), aff'd, 157 F.2d 760 (9th Cir.1946), cert. denied, 330 U.S. 827, 91 L.Ed. 1277, 67 S.Ct. 867 (1947). Thus, within its remaining territory, the Suquamish Indian Tribe's aboriginal powers are reserved unless limited by the United States' superior power. E.g., United States v. Wheeler, 435 U.S. 313, 323, 55 L.Ed.2d 303, 98 S.Ct. 1079 (1978); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560-61, 8 L.Ed. 483 (1832).
Article 9 of the Treaty of Point Elliott expressly provides that the Tribe shall turn over to government authorities any *385 intruder on the Reservation who has violated United States law:
the said tribes agree not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.
(Italics ours.) Treaty of Point Elliott, art. 9, 12 Stat. 927 (1855). This provision appears to reflect a common concern of the federal government during treaty negotiations in the mid-1800's to prevent non-Indians from hiding out on reservations in the mistaken belief that they would be free from prosecution for their crimes. See, e.g., H.R. Rep. No. 474, 23rd Cong., 1st Sess., at 98 (1834) (federal government to protect Native people from "unprincipled white men" entering Indian country, "where they fancy themselves free from punishment").
[8-12] Treaty provisions reserving tribal powers are subject to certain canons of construction. Powers reserved by a tribe in its treaty may still be exercised, unless curtailed by later federal congressional action. E.g., Wheeler, 435 U.S. at 323; Worcester, 31 U.S. at 560-61. Treaties must be construed liberally for the benefit of the Indians, e.g., Choctaw Nation v. United States, 318 U.S. 423, 431-32, 87 L.Ed. 877, 63 S.Ct. 672 (1943), and as the Indians would have understood them. E.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 25 L.Ed.2d 615, 90 S.Ct. 1328 (1970); Pioneer Packing Co. v. Winslow, 159 Wash. 655, 661, 294 P. 557 (1930). Ambiguities must be resolved in favor of the Indians. E.g., McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 36 L.Ed.2d 129, 93 S.Ct. 1257 (1973). In addition, the court may consider the practical construction given the treaty by the parties. E.g., United States v. Top Sky, 547 F.2d 486, 487 (9th Cir.1976). These canons compensate for the non-Indian party's "presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded...." Washington v. Washington Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675-76, 61 L.Ed.2d 823, 99 S.Ct. 3055 (1979).
*386 Applying these principles to the Point Elliott treaty, article 9 specifically authorizes the Suquamish Indian Tribe to detain alleged offenders of United States laws and turn them over to government officials for prosecution. Support for this authorization may be found in two opinions of the United States Supreme Court: Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 55 L.Ed.2d 209, 98 S.Ct. 1011 (1978) and Duro v. Reina, 495 U.S. 676, 109 L.Ed.2d 693, 110 S.Ct. 2053 (1990).
Oliphant involved crimes by two non-Indians on the Port Madison Reservation. Oliphant, 435 U.S. at 194. The United States Supreme Court held that the Suquamish Tribal Court did not have criminal jurisdiction to try and punish non-Indians absent affirmative delegation of that power by Congress. Oliphant, 435 U.S. at 207-08. The Court noted that when the Tribe entered into the Treaty of Point Elliott, the Tribe acknowledged its dependence upon the United States, and in all probability was recognizing "that the United States would arrest and try non-Indian intruders who came within their Reservation". Oliphant, 435 U.S. at 207. Relying on the language from article 9, the Court concluded the Tribe is obligated to deliver a non-Indian offender to government authorities for prosecution:
Thus the Tribe "agree[s] not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial." Read in conjunction with 18 U.S.C. § 1152, which extends federal enclave law to non-Indian offenses on Indian reservations, this provision implies that the Suquamish are to promptly deliver up any non-Indian offender, rather than try and punish him themselves.
(Italics ours.) Oliphant, 435 U.S. at 208.[5]
[13] Schmuck contends that the Supreme Court's decision in Oliphant bars tribal police from exercising any authority *387 over non-Indians. We disagree. Oliphant holds that tribal courts do not have criminal jurisdiction to try and punish non-Indian offenders. At the same time, the Court acknowledged the continuing vitality of the Tribe's power, reserved in article 9, to detain offenders and turn them over to governmental authorities who do have authority to prosecute.
More recently, the Supreme Court again acknowledged a tribe's power to detain. Duro, 495 U.S. at 696-97. In Duro, the Supreme Court held that an Indian tribe may not assert criminal jurisdiction over a nonmember Indian for misdemeanor crimes.[6]Duro, 495 U.S. at 688. In response to concerns that a lack of tribal jurisdiction would allow nonmember Indians to violate the law with impunity while on the reservation, the Court responded that alleged offenders need not go free:
The tribes also possess their traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands.... Tribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.
(Citations omitted. Italics ours.) Duro, 495 U.S. at 696-97.
Thus, twice the Supreme Court has stated that a tribe's proper response to a crime committed by a non-Indian on the reservation is for the tribal police to detain the offender and deliver him or her to the proper authorities.[7] This is precisely *388 what Tribal Officer Bailey did: he detained Schmuck and promptly delivered him up, in accordance with Oliphant's and Duro's directive.
In addition to the Supreme Court, the Ninth Circuit has squarely addressed the issue of tribal authority to detain a non-Indian in a case directly on point. Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir.1975). In Ortiz, a tribal police officer observed a camper truck driving through an Indian reservation under suspicious circumstances indicating the driver might be an illegal alien. The officer followed the truck onto a state highway running through the reservation and stopped the driver. When the driver could not produce a driver's license or vehicle registration, the officer checked the truck for identification papers and discovered marijuana. The driver, a non-Indian, was detained by the tribal police and transferred to drug enforcement officials. Ortiz-Barraza, 512 F.2d at 1178-79.
The Ninth Circuit held that an Indian tribe has inherent authority to stop and detain a non-Indian allegedly violating state or federal law on public roads running through the reservation until the non-Indian can be turned over to the appropriate authorities. Ortiz-Barraza, 512 F.2d at 1180. According to the court, this power exists regardless of the fact that tribes have been divested of their power to exercise criminal jurisdiction:
*389 It has at times been held that tribes may not exercise criminal jurisdiction over non-Indians. Such holdings ... have not derogated from the sovereign power of tribal authorities to exclude trespassers who have violated state or federal law by delivering the offenders to the appropriate authorities.
(Citation omitted. Italics ours.) Ortiz-Barraza, 512 F.2d at 1179. Although this case was decided prior to Oliphant, the above language is consistent with both Oliphant and Duro.
The Ninth Circuit based its finding of authority, in part, on the Tribe's traditional inherent authority to exclude: "Also intrinsic in the sovereignty of an Indian tribe is the power to exclude trespassers from the reservation. A tribe needs no grant of authority from the federal government in order to exercise this power." (Citation omitted.) Ortiz-Barraza, 512 F.2d at 1179. See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 76 L.Ed.2d 611, 103 S.Ct. 2378 (1983). The Suquamish Indian Tribe also reserved its inherent right to exclude or to condition the presence of trespassers on the Port Madison Reservation in the Treaty of Point Elliott. In article 2, the Treaty sets aside land for the "exclusive use" of the tribes, "nor shall any white man be permitted to reside upon the same without permission of the said tribes...." Treaty of Point Elliott, art. 2, 12 Stat. 927 (1855).
Amicus Washington State Patrol argues the Suquamish Indian Tribe no longer has the power to exclude from its Reservation or the lesser included power to detain, in particular because Schmuck was traveling on a public road in the Reservation. The State Patrol argues that the language from Duro citing the power to exclude applies only to tribal land, not public roads. See Duro, 495 U.S. at 696-97.
In Ortiz-Barraza, the Ninth Circuit explicitly rejected amicus' argument that a tribe does not possess the power to detain when a non-Indian is traveling on a public road:
[T]he fact that the events of interest here may have occurred within the right-of-way for a state highway avails the defendant nothing. Rights of way running through a reservation remain part of the reservation and within the territorial jurisdiction of the tribal police.
(Italics ours.) Ortiz-Barraza, 512 F.2d at 1180 (citing Gourneau v. Smith, 207 N.W.2d 256 (N.D. 1973)).
*390 [14-16] We agree with the Ninth Circuit. Just because Schmuck's offense was committed on a public road does not mean he is immune from tribal authority. By federal statute, "Indian country" is defined as all land within the limit of any Indian reservation, "notwithstanding the issuance of any patent, and, including rights-of-way". (Italics ours.) 18 U.S.C. § 1151. See, e.g., DeCoteau v. District Cy. Court, 420 U.S. 425, 427 n. 2, 43 L.Ed.2d 300, 95 S.Ct. 1082 (1975) (land within reservation is subject to tribal and federal jurisdiction including rights of way); Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 146 (9th Cir.1991) (public roads are within and therefore part of the reservation), cert. denied, ___ U.S. ___, 118 L.Ed.2d 412, 112 S.Ct. 1704 (1992); Enriquez v. Superior Court, 115 Ariz. 342, 565 P.2d 522 (1977) (granting of easement for public highway running through reservation does not alter status as "Indian country"). Thus, public roads remain part of the Reservation and are within the territorial jurisdiction of the Suquamish tribal police, at least for the limited purpose of asserting the Tribe's authority to detain and deliver alleged offenders.
The State Patrol argues, however, that recognizing tribal authority to detain will necessarily result in additional tribal regulation of roads running through the Reservation, such as adopting different speed limits or building toll booths. While we acknowledge the concerns of the State Patrol, we think these fears are unwarranted. Holding the Tribe has expressly reserved a limited authority to stop and detain alleged offenders in no way confers an unlimited authority to regulate the right of the public to travel on the Reservation's roads.
We also note that the Tribe's authority to stop and detain is not necessarily based exclusively on the power to exclude non-Indians from tribal lands, but may also be derived from the Tribe's general authority as sovereign. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 71 L.Ed.2d 21, 102 S.Ct. 894 (1982) (tribe's power to tax non-Indians does not derive solely from power to exclude but from general *391 authority as sovereign to control economic activity within its jurisdiction). Although we recognize that a tribe's inherent sovereign powers do not generally extend to the activities of nonmembers of the tribe, Montana, 450 U.S. at 565, tribes still retain some limited authority to regulate the conduct of non-Indians on reservation land:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. ... A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.
(Italics ours.) Montana v. United States, 450 U.S. 544, 565-66, 67 L.Ed.2d 493, 101 S.Ct. 1245 (1981). Allowing a known drunk driver to get back in his or her car, careen off down the road, and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the tribe.
As a practical matter, the Suquamish Indian Tribe provides most of the law enforcement patrols on the Reservation. The Tribe employs five full-time officers to patrol the Reservation, whereas no state or federal law enforcement officers are assigned solely to that area. Brief of Amicus Suquamish Indian Tribe app. C. Kitsap County assigns approximately three deputies to north Kitsap County, but they must patrol an area substantially larger than the Reservation. Holding that the Tribe does not have a limited authority to stop and detain alleged offenders who present a clear threat to community members would severely hamper the Tribe's ability to protect the welfare of Indians, as well as non-Indians, on the Reservation.
In this case, if the Suquamish Indian Tribe did not have the authority to detain, Schmuck would have been free to drive away with an alcohol level exceeding the limit for legal intoxication. In the 20 minutes it took for Trooper Clark to respond, Schmuck could have easily caused extensive property damage or seriously injured other motorists. He also *392 could have left the Reservation and eluded capture by the State Patrol. As the New Mexico Court of Appeals noted:
To hold that an Indian police officer may stop offenders but upon determining they are non-Indians must let them go, would be to subvert a substantial function of Indian police authorities and produce a ludicrous state of affairs which would permit non-Indians to act unlawfully, with impunity, on Indian lands.
State v. Ryder, 98 N.M. 453, 456, 649 P.2d 756, aff'd on other grounds, 98 N.M. 316, 648 P.2d 774 (1982). Nothing in Oliphant, Duro, or Ortiz-Barraza supports such a result. Quite the opposite. These cases support the position that tribes can detain any such offender and "promptly deliver him or her up" to the appropriate officials who are authorized to prosecute.
Finally, the State Patrol urges this court to base a tribal officer's authority to detain on a citizen's arrest theory. We decline its invitation. There would be a serious incongruity in allowing a limited sovereign such as the Suquamish Indian Tribe to exercise no more police authority than its tribal members could assert on their own. Such a result would seriously undercut a tribal officer's authority on the reservation and conflict with Congress' well-established policy of promoting tribal self-government. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62, 56 L.Ed.2d 106, 98 S.Ct. 1670 (1978). Potentially, DWI drivers would simply drive off or even refuse to stop if pulled over by a tribal officer with only a citizen's arrest capability.
We conclude an Indian tribal officer has inherent authority to stop and detain a non-Indian who has allegedly violated state and tribal law while on the reservation until he or she can be turned over to state authorities for charging and prosecution. We hold Tribal Officer Bailey, as a police officer employed by the Suquamish Indian Tribe, had authority to stop and detain Schmuck, who was allegedly driving while intoxicated on the Reservation, until he could be turned over to the Washington State Patrol for charging and prosecution.
*393 IV
Schmuck contends that even if the Tribe did have inherent authority to stop and detain him, that authority was divested by the State's enactment of RCW 37.12.010. Schmuck argues that the statute gives the State exclusive jurisdiction over motor vehicle offenses committed on reservation land, citing Makah Indian Tribe v. State, 76 Wn.2d 485, 457 P.2d 590 (1969).
By enacting RCW 37.12.010, the State of Washington assumed criminal and civil jurisdiction over Indians and Indian territory and reservations. RCW 37.12.010. The statute specifically provides for the assumption of jurisdiction over Indians on reservations for the "operation of motor vehicles upon the public streets, alleys, roads and highways". RCW 37.12.010(8).
In Makah, this court held that vehicles being operated by Indians upon public roads running through a reservation are subject to jurisdictional control of the State pursuant to RCW 37.12.010. Makah, 76 Wn.2d at 493. Schmuck argues that Makah, read in conjunction with RCW 37.12.010, vests exclusive jurisdiction over motor vehicles in the State.
Makah is not dispositive. Nothing in Makah makes such a clear statement that RCW 37.12.010 grants exclusive jurisdiction to the State. The issue in Makah pertained only to questions of state jurisdiction over Indians on the Makah Reservation. It did not address issues of jurisdiction over non-Indians or exclusivity of jurisdiction.
[17] Makah notwithstanding, Schmuck argues that RCW 37.12.010 divested the Tribe of any authority to detain Schmuck by giving the State exclusive criminal and civil jurisdiction over Indian reservations including the operation of motor vehicles. The State does not have authority to divest the Tribe of its sovereignty; tribal sovereignty can be divested only by affirmative action of Congress. See United States v. Wheeler, 435 U.S. 313, 323, 55 L.Ed.2d 303, 98 S.Ct. 1079 (1978); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 154, 65 L.Ed.2d 10, *394 100 S.Ct. 2069 (1980) ("tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States"); Native Village of Venetie I.R.A. Coun. v. Alaska, 944 F.2d 548, 558 (9th Cir.1991). However, RCW 37.12.010 was enacted pursuant to congressional authority in Pub. L. No. 83-280, § 6, 67 Stat. 588 (1953) (hereafter Public Law 280); State v. Hoffman, 116 Wn.2d 51, 65-66, 804 P.2d 577 (1991). Because the State statute was enacted under congressional authority, this issue necessarily turns on whether Congress, by enacting Public Law 280, affirmatively divested the Tribe of its power to detain and deliver offenders to governmental authorities for prosecution.
Enacted in 1953, Public Law 280 mandated the transfer of civil and criminal jurisdiction over Indian country from the federal government to five state governments. Pub. L. No. 83-280, § 6, 67 Stat. 588 (1953); Venetie, 944 F.2d at 559-60. Other states, including Washington, were permitted to assume such jurisdiction voluntarily. Pub. L. No. 83-280, § 7, 67 Stat. 588 (1953). In 1963, Washington adopted RCW 37.12.010 pursuant to Public Law 280. Hoffman, 116 Wn.2d at 65-66. RCW 37.12.010 complies with Public Law 280 and is constitutional. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 484, 493, 58 L.Ed.2d 740, 99 S.Ct. 740 (1979); Hoffman, 116 Wn.2d at 65-66.
[18] Although legislative history on the law is sparse, Congress' primary motivation in enacting Public Law 280 was to remedy the lack of adequate criminal law enforcement on some reservations. Venetie, 944 F.2d at 560; Bryan v. Itasca Cy., 426 U.S. 373, 379-80, 48 L.Ed.2d 710, 96 S.Ct. 2102 (1976) (Congress' primary concern was the problem of lawlessness and the absence of adequate tribal law enforcement on certain reservations). Tribes that had a satisfactory tribal law and order organization were exempted from the provisions of Public Law 280. Bryan, 426 U.S. at 385.
[19] Both the United States Supreme Court and the Ninth Circuit have concluded that Public Law 280 is not a divestiture statute. Venetie, 944 F.2d at 560; see California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-12, 94 L.Ed. *395 2d 244, 107 S.Ct. 1083 (1987); Bryan, 426 U.S. at 383-90. In the area of criminal jurisdiction, the Eighth Circuit concluded that Public Law 280 did not itself divest Indian tribes of their sovereign power to punish their members for violations of tribal law: "Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority". Walker v. Rushing, 898 F.2d 672, 675 (8th Cir.1990). In the area of civil regulatory authority, the United States Supreme Court observed that nothing in the text of Public Law 280 addresses the removal of tribal authority, as would be expected if Congress intended such a "sweeping change in the status of tribal government". Bryan, 426 U.S. at 381. The Ninth Circuit has also concluded that Public Law 280 was designed to supplement tribal institutions, not supplant them. Venetie, 944 F.2d at 560. Thus, the court held that no provision in either a federal child welfare statute or Public Law 280 prevented concurrent state and tribal jurisdiction. Venetie, 944 F.2d at 561. See also Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 149 (9th Cir.1991) (Public Law 280 does not divest a tribe of its right to enact and enforce its own internal civil traffic code against its members), cert. denied, ___ U.S. ___, 118 L.Ed.2d 412, 112 S.Ct. 1704 (1992). The so-called mandatory Public Law 280 states that have addressed the issue consider state and tribal jurisdiction to be concurrent under Public Law 280. Venetie, 944 F.2d at 561 (citing 70 Op. Att'y Gen. Wisc. 237, 243 (1981); Opinion No. 48, Opinion Letter from Robert M. Spire, Att'y Gen. Neb., to State Sen. James E. Goll (Mar. 28, 1985)). See also F. Cohen, Federal Indian Law ch. 6, § C3a(1), at 367 (1982) (Public Law 280 did not extinguish tribal jurisdiction, which probably remains concurrent with the states).
[20] No court has squarely addressed the issue of whether Public Law 280 divests a tribe's authority to stop and detain non-Indian motorists allegedly violating state and tribal law while traveling on reservation roads. As noted in the above cases, however, nothing in the language or history of Public Law 280 indicates an intent by Congress to diminish tribal *396 authority. Likewise, nothing in the language of RCW 37.12.010 affirmatively grants exclusive jurisdiction to the State. See RCW 37.12.010. In any event, because RCW 37.12.010 was enacted pursuant to Public Law 280, its scope cannot exceed that authorized by Public Law 280. Given that one of the primary goals of Public Law 280 is to improve law enforcement on reservations, holding that Public Law 280 divested a tribe of its inherent authority to detain and deliver offenders would squarely conflict with that goal.
[21] Thus, Public Law 280, by which the State assumed jurisdiction over the operation of motor vehicles on Indian reservations, is at best ambiguous about whether that jurisdiction is exclusive or concurrent with existing tribal authority to stop and detain an alleged offender until he or she can be turned over to government authorities for prosecution. Under the rules of construction for Indian treaties, rights reserved by a tribe in its treaty may be exercised unless and until affirmatively divested by Congress. See Wheeler, 435 U.S. at 323; Venetie, 944 F.2d at 558. However, congressional intent to override a particular Indian right must be clear; repeal by implication is not favored. Morton v. Mancari, 417 U.S. 535, 549-50, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974). Where ambiguity exists, ambiguities must be resolved in favor of the Indians. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 85 L.Ed.2d 753, 105 S.Ct. 2399 (1985).
Accordingly, we hold that RCW 37.12.010, enacted pursuant to Public Law 280, does not divest the Suquamish Indian Tribe of its inherent authority to stop and detain a non-Indian who has allegedly violated state and tribal law while traveling on a public road in the Reservation, until he or she can be turned over to state authorities for charging and prosecution.[8]
*397 The judgments of Kitsap County District Court and Kitsap County Superior Court upholding Schmuck's DWI conviction are affirmed.
UTTER, BRACHTENBACH, DURHAM, SMITH, and GUY, JJ., concur.
ANDERSEN, C.J., concurs in the result.
NOTES
[1] Tribal Officer Bailey was not cross-deputized by the Kitsap County Sheriff's Department or the Washington State Patrol. The Suquamish Tribal Police Department has not entered into a mutual aid agreement with the Kitsap County Sheriff's Department or the Washington State Patrol. Clerk's Papers, at 132. Previously, the Tribe had a cooperative agreement with Kitsap County. The County, however, refused to share any of the revenue collected with the Tribe. Subsequently, the County elected not to continue a cooperative traffic enforcement program with the Tribe. Brief of Respondent, at 12 (quoting Suquamish Tribal Law and Order Code 10.1.3).
[2] Although not included in the stipulation of facts, both parties noted in their briefs that the specific tests included a "horizontal gaze nystagmus" and a breath test on an ALCO-SENSOR portable breath testing machine. Schmuck's breath sample registered .201. During the eye test, neither of Schmuck's eyes "pursued smoothly", and the onset of the nystagmus was prior to 45 degrees. Brief of Petitioner, at 4-5; Brief of Respondent, at 5.
[3] We note that Schmuck's assignment of error is limited to the sole question of whether the Tribe has inherent authority to stop and detain. He does not challenge the reasonableness of that detention, include any arguments in his brief, or present any evidence that the detention was in fact unreasonable. This court will not consider an issue on appeal that is not raised by an assignment of error or supported by argument and citation of authority. McKee v. American Home Prods. Corp., 113 Wn.2d 701, 705, 782 P.2d 1045 (1989). Therefore, we do not address any arguments by respondent or amicus curiae regarding the scope of the detention.
[4] In Confederated Tribes, the Ninth Circuit held the State does not have jurisdiction over tribal members on the reservation for purposes of enforcing civil traffic laws against tribal members. Confederated Tribes, 938 F.2d at 149. Schmuck argues that because the Ninth Circuit held that tribes have exclusive jurisdiction over civil traffic infractions by tribal members, then the State must necessarily have exclusive jurisdiction over traffic violations by non-Indians. Schmuck's argument is not persuasive. Given the complexities of tribal, state, and federal jurisdiction over Indians and non-Indians on reservations, Confederated Tribes cannot support such a conclusion. The Ninth Circuit addressed only State jurisdiction over civil traffic infractions by Indians, not authority to detain non-Indians for civil infractions like speeding or for criminal violations like DWI.
[5] In a case directly on point, the New Mexico Court of Appeals also looked to this language from Oliphant and held that an Indian tribal officer had inherent authority to detain a non-Indian offender and deliver him or her to state authorities, even though the officer was not cross-commissioned by state police. State v. Ryder, 98 N.M. 453, 649 P.2d 756, aff'd on other grounds, 98 N.M. 316, 648 P.2d 774 (1982).
[6] In 1991, Congress overruled the holding in Duro by passing legislation declaring that tribes possess inherent criminal jurisdiction over all Indians. Pub. L. No. 102-137, § 1, 105 Stat. 646 (1991). Nevertheless, Duro's reasoning that tribes have inherent sovereignty to detain and deliver offenders is still sound. In fact, it is supported by Congress' action in affirming tribal criminal jurisdiction over all Indians, action which is consistent with the federal policy of furthering Indian self-government. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62, 56 L.Ed.2d 106, 98 S.Ct. 1670 (1978). Holding that tribes have inherent sovereignty to detain and deliver offenders is also consistent with that policy.
[7] Additional support for the Supreme Court's construction of article 9 in Oliphant and Duro can be found in the dissent to the Court of Appeals' opinion in Oliphant, which was reversed by the Supreme Court. Oliphant v. Schlie, 544 F.2d 1007 (9th Cir.1976), rev'd, 435 U.S. 191, 55 L.Ed.2d 209, 98 S.Ct. 1011 (1978). The Supreme Court opinion in Oliphant largely adopted the position of this dissent, written by Justice Kennedy while still sitting on the Ninth Circuit. Justice Kennedy subsequently wrote the majority opinion in Duro. The dissent states:
It is important to focus on the precise issue in this case [Oliphant]. We are not considering whether Indian tribes may pass reservation ordinances, having the force of law, governing the conduct of the tribe's members; they may.... Nor are we determining whether Indians have the right to exclude from the reservation nonmembers they deem undesirable; they have.... Nor is there any question of potential lawbreakers going unpunished, a point given special emphasis by the majority, for we have held that tribal authorities have the power to apprehend violators of state and federal law and to deliver the offenders to the appropriate authority. Oriz [sic]-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir.1975).
(Footnote and citations omitted. Italics ours.) Oliphant v. Schlie, 544 F.2d at 1014 (Kennedy, J., dissenting).
[8] Our disposition makes it unnecessary for us to address petitioner's other arguments on appeal. To the extent additional arguments are raised by amici, we decline to address them. This court need not consider issues or arguments raised only by an amicus curiae. State v. Gonzalez, 110 Wn.2d 738, 752 n. 2, 757 P.2d 925 (1988); Coburn v. Seda, 101 Wn.2d 270, 279, 677 P.2d 173 (1984).
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Court of Appeals
of the State of Georgia
ATLANTA, June 09, 2015
The Court of Appeals hereby passes the following order
A15D0421. ROGER KNIGHTS v. U.S. BANK NATIONAL ASSOCIATION.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
14CV4985
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, June 09, 2015.
I certify that the above is a true extract from the minutes of
the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
| {
"pile_set_name": "FreeLaw"
} |
565 S.E.2d 816 (2002)
LUKE
v.
BATTLE, Warden.
No. S02A0088.
Supreme Court of Georgia.
July 3, 2002.
Reconsideration Denied July 26, 2002.
*817 Marcus C. Chamblee, Alpharetta, for appellant.
Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., for appellee.
James C. Bonner, Jr., Atlanta, for amicus appellant.
SEARS, Presiding Justice.
We granted a habeas corpus application filed by the appellant, Marcus Luke, to consider whether the habeas court erred (1) in ruling that Brewer v. State[1] announced a new rule of criminal procedure, as opposed to a new rule of substantive criminal law, and (2) in applying the so-called "pipeline" rule[2] to conclude that Luke could not rely on Brewer to support his claim that the State convicted him without proving an element of the crime beyond a reasonable doubt. Under the pipeline rule, a new rule of criminal procedure generally applies only to those cases on direct review or not yet final, and would not apply to cases on collateral review, such as Luke's habeas petition. For the following reasons, we conclude that our decision in Brewer announced a new rule of substantive criminal law, as it placed certain conduct beyond the reach of the aggravated sodomy statute that before that decision could have led to criminal liability, and that the habeas court erred by applying the pipeline rule to Luke's claim regarding Brewer. Accordingly, we reverse the habeas court's judgment and remand the case to it for proceedings consistent with this opinion.
1. Luke was convicted of aggravated sodomy involving a victim under the age of fourteen, and on appeal, Luke contended that the evidence was insufficient to support his conviction because the State had failed to prove the element of force necessary to convict him of aggravated sodomy. The Court *818 of Appeals disagreed, holding that the element of force was presumed by a showing that the defendant committed an act of sodomy on an underage victim and that a showing of actual force was unnecessary to support the conviction.[3] In Brewer,[4] however, we overruled Luke and numerous other cases, and held that "force is a separate essential element which the State is required to prove to obtain a conviction for aggravated sodomy against a victim under the age of consent;"[5] that the State could no longer prove force by showing only an act of sodomy on an underage victim;[6] but that instead the State had to prove force by acts of force, which could include acts of intimidation and mental coercion, against the victim.[7]
In this habeas action, relying on Brewer, Luke claimed that the State had failed to prove the element of force. The habeas court, however, held that Luke was not entitled to the benefit of Brewer, in that Brewer established a new rule of criminal procedure and that new rules of criminal procedure applied only to those cases then on direct review or not yet final.[8] Because Luke was raising the issue on collateral review, the habeas court ruled that Brewer was inapplicable. We then granted Luke's habeas application to consider that ruling of the habeas court.
2. We conclude that the present case is controlled adversely to the State by the rationale of the Supreme Court's decision in Bousley v. United States,[9] as well as by the rationale of this Court's decision in Scott v. Hernandez-Cuevas.[10]
In Bousley, the defendant had pled guilty to "using" a firearm during a drug trafficking crime in violation of 18 USC § 924(c)(1). After Bousley had pled guilty, the Supreme Court held in Bailey v. United States[11] that the "use" element of the crime required the active use of the firearm during the drug offense and not merely, as in Bousley's case, the close proximity of the firearm to the drugs.[12] Bousley filed a habeas petition, contending that he had been misinformed about the essential elements of the crime when he pled guilty, and the Supreme Court considered whether its decision in Bailey should be applied retroactively to Bousley's habeas case. The Supreme Court held that Bailey had to be applied retroactively. In doing so, the Supreme Court refused to apply the rule of Teague v. Lane, holding that Teague applied to procedural rules and not to new rules of substantive criminal law.[13]
The Court noted that "[t]his distinction between substance and procedure is an important one in the habeas context."[14] The Court held that when it decides the "meaning of a criminal statute"[15] and decides that the statute "does not reach certain conduct,"[16] it has made a ruling of substantive criminal law.[17] The Court further explained that, unlike most new rules of criminal procedure, it "would be inconsistent with the doctrinal underpinnings of habeas review" for such substantive rulings not to apply retroactively to *819 habeas review.[18] The Court thus held that Bousley was entitled to rely on the Court's ruling in Bailey in his habeas case.[19]
This Court came to a similar conclusion in Hernandez-Cuevas.[20] In that case, Hernandez-Cuevas was convicted of trafficking in cocaine at a time when the term "possession" in that statute had been interpreted to permit conviction of the offense based upon evidence of actual or constructive possession of cocaine.[21] After Hernandez-Cuevas's direct appeal had been decided by our Court of Appeals, this Court ruled in Lockwood v. State[22] that the term "possession" in the trafficking in cocaine statute required the State to show that the defendant had actual possession of the cocaine.[23] Hernandez-Cuevas then filed an action for collateral relief based upon Lockwood, and the habeas court granted relief. In ruling on the State's appeal, this Court affirmed, holding that our decision in Lockwood applied retroactively to Hernandez-Cuevas's habeas petition.[24] Our decision in Hernandez-Cuevas is consistent with the Supreme Court's decision in Bousley, in that we recognized that our decision in Lockwood meant that the trafficking in cocaine statute did not reach certain conduct that it had reached beforethe constructive possession of cocaine, and in that we held that the Lockwood decision thus had to be applied retroactively to collateral review.
Bousley and our decision in Hernandez-Cuevas thus establish that a new rule of substantive criminal law must be applied retroactively to cases on collateral review and that an appellate decision holding that a criminal statute no longer reaches certain conduct is a ruling of substantive law. Under this framework, contrary to the dissent's assertion,[25] our decision in Brewer must be considered a new rule of substantive criminal law. In this regard, before Brewer, this Court and the Court of Appeals had construed the term "force" in the aggravated sodomy statute to permit the State to convict a person of aggravated sodomy by showing only that he had engaged in an act of sodomy with an underage victim.[26] In Brewer, however, we construed the term "force" in the aggravated sodomy statute to "`mean[ ] acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation,'"[27] and held that "one who commits an act of sodomy against an underage victim is [not], without more, guilty of aggravated sodomy."[28] We construed the statute in this fashion for two reasons. One was that we had "construed the language `forcibly and against her will' in the rape statute, OCGA § 16-6-1(a), as specifying two separate and distinct elements"[29] and as requiring *820 some factual evidence of force to prove rape.[30] The other was that the General Assembly had enacted a strict-liability aggravated child molestation statute that does not require the use of force, but that instead permits conviction based only on the fact that the defendant committed an act of sodomy on an underage victim. We reasoned that, with the enactment of the aggravated child molestation statute, the General Assembly had negated the ability to convict a defendant of aggravated sodomy based solely on the commission of an act of sodomy with an underage victim, since such an ability "would leave the separate crime of aggravated child molestation with no practical purpose."[31]
This discussion of Brewer demonstrates that our decision in that case, like the Supreme Court's decision in Bailey[32] and our decision in Lockwood,[33] construed the meaning of a criminal statute so as to place certain conducta non-forceful act of sodomy with an underage victimbeyond its reach. Thus, to be consistent with the Supreme Court's decision in Bousley[34] and this Court's decision in Hernandez-Cuevas,[35] we now hold that Brewer established a rule of substantive criminal law that must be applied retroactively to cases on collateral review.[36] Accordingly, the habeas court erred in applying the pipeline rule to Luke's habeas case, and erred in refusing to permit Luke to rely on Brewer.[37] We therefore reverse the habeas court's judgment and remand the case to it for proceedings consistent with this opinion.
As for the dissent's emotional assertion that our holding today might "vacate the convictions of an untold number of child molesters," there are two fair and just responses. One is that today's opinion does not vacate the child molestation conviction of any defendant also convicted of aggravated sodomy before our decision in Brewer. The other, more important, response is that the *821 only defendants who will have their aggravated sodomy convictions overturned are those convicted of an act that the aggravated sodomy statute does not make criminal. Overturning the conviction of a person not guilty of the crime for which he was convicted goes to the heart of our habeas corpus system and our American system of justice.
Judgment reversed and case remanded for proceedings consistent with this opinion.
All the Justices concur, except HUNSTEIN, CARLEY and THOMPSON, JJ., who dissent.
FLETCHER, Chief Justice, concurring.
I join the majority's decision, but write separately to emphasize a fundamental fallacy with the dissent's concern that any analysis other than the one put forth by the dissent will result in a flood of "child molesters" being released from prison. This is a factually incorrect statement as applied to Luke because Luke will remain in prison. This opinion in no way affects Luke's convictions and 15 year-plus sentences on two counts of aggravated child molestation and one count of child molestation. Furthermore, Luke's aggravated sodomy convictions will not be vacated under Brewer v. State if the habeas court concludes on remand that there is even minimal evidence of force.[1] To put it plainly, Luke is not going anywhere and neither is anyone else convicted of child molestation.
CARLEY, Justice, dissenting.
I agree with the majority that a new substantive ruling can apply retroactively to cases on habeas review, while a new procedural rule generally has limited prospective application to those criminal cases that are then in the direct appeal "pipeline." However, I differ with the majority as to the type of new rule we adopted in Brewer v. State, 271 Ga. 605, 523 S.E.2d 18 (1999). The majority concludes that Brewer established a new substantive principle upon which Luke can rely to obtain habeas relief. I believe, however, that the habeas court correctly held that Brewer sets forth only a new procedural rule and, thus, does not apply in the context of this collateral attack on Luke's conviction. Therefore, I respectfully dissent to the reversal of the judgment of the habeas court.
Luke was convicted of aggravated sodomy under former OCGA § 16-6-2(a), which defined the offense as an act of sodomy committed "with force and against the will of the other person." (Emphasis supplied.) That statute was clear and unambiguous, and there was never any question that a conviction under its provisions required proof that the defendant's act was both forceful and against the will of the victim. Compare Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (construing a federal criminal statute requiring "use" of a firearm as requiring proof of more than mere possession of the weapon); Lockwood v. State, 257 Ga. 796, 364 S.E.2d 574 (1988) (holding that a conviction for "constructive" possession of contraband is not authorized under a statute expressly requiring that possession be "actual"). The issue addressed in Brewer is the manner in which the State was authorized to satisfy its burden of proving those two elements. Previously, this Court had held that sodomy committed on a young child was "in law, forcible and against the will. [Cit.]" Cooper v. State, 256 Ga. 631(2), 352 S.E.2d 382 (1987). In Brewer, however, we simply held that the prosecution could no longer show both elements by relying upon the presumption that sodomy committed against a child was forceful as well as non-consensual. See also State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998) (presumption of both elements based upon age of the victim impermissible in forcible rape case).
Thus, the substantive elements of the crime for which Luke was convicted were completely unaffected by the decision in Brewer. Compare Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001); Bailey v. United States, supra; Lockwood v. State, supra. Both before and after Brewer, a conviction for aggravated sodomy under the former statute required proof that the act was committed with force and against the *822 victim's will. The only difference was that, after Brewer, the State could no longer rely upon an evidentiary presumption arising from the sodomy victim's age to prove the element of force. I submit that appellate disapproval of an evidentiary presumption is simply a procedural change which does not come within any exception to the general rule of non-retroactive application and, thus, applies only to criminal cases then in the "pipeline" and not to cases on habeas review. See Harris v. State, 273 Ga. 608, 610(2), 543 S.E.2d 716 (2001) (holding that rejection of a presumption of malicious intent arising from use of a deadly weapon is a "new rule of criminal procedure" which will not be applied on habeas corpus). Compare Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (applying the substantive rule of Bailey retroactively); Scott v. Hernandez-Cuevas, 260 Ga. 466, 396 S.E.2d 900 (1990) (applying the substantive rule of Lockwood retroactively on habeas). The majority attempts to distinguish Harris on that ground that, even after that decision, "juries are free to infer that a person who uses a deadly weapon has the intent to kill and to use that evidence to support a finding of guilt. See Renner v. State, 260 Ga. 515, 517-518, 397 S.E.2d 683 (1990)...." (Opinion, p. 820, fn. 36.) However, nothing in Harris expressly supports that conclusion. Compare Renner v. State, supra. Moreover, Harris and Brewer both dealt with evidentiary presumptions regarding an essential element of the crime. Renner, on the other hand, only concerns the general concept of flight as circumstantial evidence of guilt in all criminal cases. The majority does not explain how it is possible for jurors to consider an inference of the existence of an essential element of the actual crime on which the trial court is expressly forbidden to instruct, which would constitute error if included in the charge, and of which inference they are otherwise totally unaware. "`Qualified juror under oath are presumed to follow the instructions of the trial court.' [Cits.]" Holmes v. State, 273 Ga. 644, 648(5)(c), 543 S.E.2d 688 (2001). Thus, before Harris, we presumed that the jury considered the deadly weapon inference as evidence of the essential element of intent when it was charged and, after Harris, we can safely presume that the jury does not consider because it is not charged. Therefore, I cannot agree with the majority's explanation as to why our rejection in Harris of an evidentiary presumption as to the element of intent in a malice murder case is only a new procedural rule, but our similar disapproval in Brewer of an evidentiary presumption as to the element of force in an aggravated sodomy case is a substantive change applicable to cases which, having passed through the "pipeline," have become final. I submit that there is no valid distinction, that Harris controls, and that Brewer is not applicable in this habeas case.
This certainly is not a case in which the general grounds were never considered. The Court of Appeals fully addressed that issue on the direct appeal. Luke v. State, 222 Ga.App. 203(1), 474 S.E.2d 49 (1996). Compare Valenzuela v. Newsome, 253 Ga. 793(1), 325 S.E.2d 370 (1985). Nor is this a case in which the evidence did not authorize the guilty verdict. The conviction for aggravated sodomy was clearly authorized under the then-applicable evidentiary presumption that sodomy against a child was a forcible and non-consensual act. Cooper v. State, supra. Compare Fiore v. White, supra; Bailey v. United States, supra; Lockwood v. State, supra. The State could not rely upon that presumption if this case were tried today, because force is no longer presumed when the sodomy victim is a child. However, that is not a substantive change in the law affecting the constitutional validity of the conviction in accordance with the evidentiary presumptions then in effect. It is only a procedural change in the manner in which the prosecution may meet its burden of proving the essential elements of the crime. Harris v. State, supra.
In Brewer, we followed the mandate of the holding in the then recent case of State v. Collins, supra. In Collins, we had reaffirmed our holding in Drake v. State, 239 Ga. 232, 236 S.E.2d 748 (1977), "that the state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim's age." Collins v. State, supra, at 43, 508 S.E.2d 390. Brewer observed that "aggravated *823 sodomy shares many of the unique characteristics of the crime of forcible rape which we set forth in [Collins] ... [cits.]" Brewer, supra, at 607, 271 Ga. 605. Thus, we concluded that "[j]ust as in forcible rape cases, establishing a single presumption in all aggravated sodomy cases involving underage victims is problematic. [Cits.]" Brewer, supra, at 607, 523 S.E.2d 18. It is clear that Brewer was correctly decided and, if properly construed, has a very limited impact. The Brewer rule applies only to the appellant in that case and to those relatively few additional defendants whose direct appeals from convictions for violating former OCGA § 16-6-2(a) were then in the "pipeline." However, in this case, the Court broadly extends the holding in Brewer retroactively so as to include any and all defendants whose convictions for the aggravated sodomy of a child under the former statute were otherwise "final." It is true that the majority's ruling will not necessarily result in the immediate release from confinement of Luke or other affected petitioners. However, the ultimate effect of today's opinion is to vacate the convictions of an untold number of child molesters even though the procedure used in proving their guilt was sufficient at the time their convictions for aggravated sodomy became final. Opening the floodgate so as to permit collateral attacks by that group of persons convicted of aggravated sodomy of children is an erroneous extension of Brewer, and I believe that the habeas court correctly denied habeas corpus relief.
I dissent not because of any emotional overreaction, but because today's holding transcends Harris and Brewer, and will have pernicious consequences on the overall symmetry and continuity of the law by advancing an unrestrictive concept of habeas corpus in which no constitutionally valid conviction for any criminal offense is ever really final and free from collateral attack.
I am authorized to state that Justice HUNSTEIN and Justice THOMPSON join in this dissent.
NOTES
[1] 271 Ga. 605, 607, 523 S.E.2d 18 (1999).
[2] See Taylor v. State, 262 Ga. 584, 586, 422 S.E.2d 430 (1992); Teague v. Lane, 489 U.S. 288, 310-311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
[3] Luke v. State, 222 Ga.App. 203(1), 474 S.E.2d 49 (1996). As noted in the Court of Appeals's opinion, the victim testified that "he was not forced" to do the acts in question, but that "he did not want to do them." Id. at 203, 474 S.E.2d 49.
[4] 271 Ga. at 606-607, 523 S.E.2d 18.
[5] Id. at 606, 523 S.E.2d 18.
[6] Id.
[7] Id.
[8] See Taylor, 262 Ga. at 586, 422 S.E.2d 430; Teague, 489 U.S. at 310-311, 109 S.Ct. 1060.
[9] 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
[10] 260 Ga. 466, 396 S.E.2d 900 (1990).
[11] 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
[12] Bousley, 523 U.S. at 616-617, 118 S.Ct. 1604.
[13] Bousley, 523 U.S. at 620-621, 118 S.Ct. 1604.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 620-621, 118 S.Ct. 1604.
[18] Id. at 620-621, 118 S.Ct. 1604.
[19] Id. For a case following Bousley and ruling that court decisions altering the meaning of the substantive criminal law must be applied retroactively, see Santana-Madera v. United States, 260 F.3d 133, 138-139 (2nd Cir.2001).
[20] 260 Ga. 466, 396 S.E.2d 900.
[21] Id. at 466-467, 396 S.E.2d 900.
[22] 257 Ga. 796, 364 S.E.2d 574 (1988).
[23] Id. at 467, 396 S.E.2d 900.
[24] Id.
[25] The dissent has improperly analyzed the so-called "pipeline" rule in this case. The dissent concludes that Brewer constituted a new rule of criminal procedure, and that for that reason alone, the rule in Brewer may not be applied retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although Teague does establish a general rule that new rules of criminal procedure will not be applied to cases on collateral review, it establishes two exceptions to the general rule, and those exceptions must be found not to apply before it can be concluded that a new rule of criminal procedure does not apply to cases on collateral review. See Teague, 489 U.S. at 307-315, 109 S.Ct. 1060. The dissent fails to analyze either of these exceptions, and thus errs in its application of the "pipeline" rule.
[26] See, e.g., Luke, 222 Ga.App. at 203-206, 474 S.E.2d 49; Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987); State v. Collins, 270 Ga. 42, 43-44, 508 S.E.2d 390 (1998).
[27] Brewer, 271 Ga. at 607, 523 S.E.2d 18, quoting Collins, 270 Ga. at 43, 508 S.E.2d 390.
[28] Brewer, 271 Ga. at 607, 523 S.E.2d 18. Based on this holding, we overruled our decision in Cooper, 256 Ga. 631, 352 S.E.2d 382, and numerous Court of Appeals decision. Brewer, 271 Ga. at 607, 523 S.E.2d 18.
[29] Brewer, 271 Ga. at 606, 523 S.E.2d 18.
[30] Id. See also Collins, 270 Ga. at 42-44, 508 S.E.2d 390.
[31] Brewer, 271 Ga. at 607, 523 S.E.2d 18.
[32] 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472.
[33] 257 Ga. 796, 364 S.E.2d 574.
[34] 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828.
[35] 260 Ga. 466, 396 S.E.2d 900.
[36] The case of Harris v. State, 273 Ga. 608, 610, 543 S.E.2d 716 (2001), on which the dissent relies, is inapposite to the present situation. In Harris, this Court did not offer any opinion as to the meaning of the term "intent" and did not place any conduct beyond the reach of the murder statute that had, before Harris, been subject to criminal liability under that statute. Instead, we simply held that a jury charge on a permissive inference that a jury might draw on intent should not be given as a matter of state law. We adopted this rule because, as a procedural matter, we concluded that the better practice was not to have a jury charge that emphasized an inference that could be drawn from one particular circumstance of the case, as opposed to an inference that could be drawn from other particular circumstances. See Clark v. State, 265 Ga. 243, 246, 454 S.E.2d 492 (1995), on which we relied in Harris. Indeed, after Harris, juries are free to infer that a person who uses a deadly weapon has the intent to kill and to use that evidence to support a finding of guilt. See Renner v. State, 260 Ga. 515, 517-518, 397 S.E.2d 683 (1990) (holding that juries should not be instructed on flight, but stating that the prosecutor was free to argue the defendant's guilt based on evidence of flight and that the jury was free to infer that Renner's flight was evidence of guilt). On the other hand, after Brewer, juries are no longer free to rely on the simple fact that the defendant committed an act of sodomy on an underage victim to support a finding of guilt for aggravated sodomy. Thus, in Brewer, unlike in Harris, this Court altered the meaning of a statutory element of the crime and placed certain conduct beyond the reach of a criminal statute.
[37] We note that Luke's claim on habeas that under Brewer the evidence is insufficient to support his conviction is a claim that is cognizable in habeas. See Miller v. Parker, 256 Ga. 276, 348 S.E.2d 655 (1986); Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985). See also Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), in which the Supreme Court held that when a court decision clarifies a criminal statute, a defendant is entitled to collateral relief based on that decision if he can show that the State convicted him "without proving the elements of the crime beyond a reasonable doubt." Id. at 228, 121 S.Ct. 712. The Court held that under these circumstances, the Federal Due Process Clause forbids such a conviction. Id. We also note that Luke's claim is not barred by res judicata, as, after the Court of Appeals decided his directed appeal, there was an intervening change in the law due to our Brewer decision. See Bruce v. Smith, 274 Ga. 432, 434-435, 553 S.E.2d 808 (2001).
[1] Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18 (1999) ("only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible").
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892 So.2d 284 (2004)
Dennis A. SIMPSON, Appellant,
v.
Dr. Michael H. LOVELACE, The Surgery Consultants of Oxford, P.A. and Baptist Memorial Hospital North Mississippi, Inc., Appellees.
No. 2003-CA-01154-COA.
Court of Appeals of Mississippi.
November 2, 2004.
Rehearing Denied January 25, 2005.
*285 Janelle Marie Lowrey, Roy O. Parker, Tupelo, Attorneys for Appellant.
S. Duke Goza, Robert S. Mink, Oxford, Shelby Kirk Milam, Attorneys for Appellees.
EN BANC.
IRVING, J., for the Court.
¶ 1. On December 23, 2002, Dennis Simpson filed a medical malpractice action against Dr. Michael Lovelace, the Surgery Consultants of Oxford, John Doe, Jane Doe and ABC Corporation, alleging that Dr. Lovelace negligently operated on his right leg, and as a result, caused him to sustain multiple damages. Shortly thereafter, Simpson amended his complaint to add Baptist Memorial Hospital as a defendant. In response, Dr. Lovelace and the Surgery Consultants of Oxford filed a motion for summary judgment, asserting that the statute of limitations had expired, and thus Simpson's suit was time barred.[1] The trial judge granted the motion, and found that Simpson's complaint was filed beyond the applicable statute of limitations. On appeal, Simpson presents the following issues for review: (1) whether absent a medical expert, he knew or should have known of the negligence performed by Dr. Lovelace and the Surgery Consultants of Oxford, and the causal relationship between the negligent act and the injury, and (2) whether summary judgment was appropriate. Finding no reversible error, we affirm the trial court's grant of summary judgment in favor of the defendants.
FACTS
¶ 2. In August 1998, Dr. Lovelace admitted Simpson to Baptist Memorial Hospital in Oxford for an operation involving the removal of veins from his right leg.[2] Simpson returned for follow-up visits with Dr. Lovelace on September 8 and September 15, 1998.
¶ 3. In September 2001, Simpson met with Dr. Frank Nichols at the wound care *286 center in Tupelo for treatment of ulcers on his right leg. Simpson informed Dr. Nichols that the ulcers had been on his leg for approximately fourteen months, and was caused by a vein protruding through his skin. Dr. Nichols noted in his medical report that "the patient complained of experiencing pain, swelling and tingling, burning and some numbness in the right leg since 1998." The following month, Dr. Nichols performed a venogram on Simpson's leg. Simpson claims that at his follow-up visit on October 12, 2001, Dr. Nichols informed him that the results of the venogram revealed that Dr. Lovelace had failed to properly remove the veins in his right leg, specifically that Dr. Lovelace did not properly hook up the veins below his knee and should have removed the veins above his knee. Additional facts will be related during our discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
Standard of Review
¶ 4. The law is well established with respect to the grant or denial of summary judgments. A summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under the rule." Lowery v. Guaranty Bank and Trust Company, 592 So.2d 79, 81 (Miss.1991) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 682 (Miss.1987)). "In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court." Lowery, 592 So.2d at 81. "The evidentiary matters are viewed in the light most favorable to the nonmoving party." Id."If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed." Lowery, 592 So.2d at 81 (citing Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990)).
Simpson's Knowledge of the Injury
¶ 5. Simpson contends that he did not become aware that he had an actionable injury until October 12, 2001, when Dr. Nichols informed him of Dr. Lovelace's alleged negligence. He maintains that as a result, the statute of limitations began to run on that particular date.
¶ 6. Dr. Lovelace and the other defendants, however, contend that since Simpson knew that there was a problem with his leg in 1998, the statute of limitations began to run at that time. Dr. Lovelace further maintains that since Simpson's injury was not latent, he had until August 28, 2000, to file a claim.
¶ 7. Mississippi Code Ann. section 15-1-36 (Rev.2003), which governs medical malpractice claims, states in pertinent part as follows:
No claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable *287 diligence might have been first known or discovered ...
¶ 8. "The two-year statute of limitations does not commence running until the patient discovers or should have discovered that he has a cause of action." Smith v. Sanders, 485 So.2d 1051,1052 (Miss.1986) (citing Pittman v. Hodges, 462 So.2d 330, 332-334 (Miss.1984)). "The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner." Sanders, 485 So.2d at 1052.
¶ 9. Here, Smith did not file his action until December 23, 2002, more than four years after his surgery. The trial court found that Simpson's suit clearly exceeded the time provided for in the statute. We agree. Although Simpson claims that he did not discover Dr. Lovelace's negligence until informed by Dr. Nichols, we find that the record is clear that Simpson complained of problems immediately after his surgery in 1998 that should have put him on notice that there was a problem. Dr. Nichols noted in his physician report that Simpson had complained of numbness in his right leg since 1998, and Simpson even admitted in a pleading filed in response to Dr. Lovelace's motion for summary judgment that:
From the date of the operation through September, 2001, Plaintiff suffered from pain, swelling, numbness and ulcers on his right leg at the site of the surgery. In September, 2001, while being treated at the Wound Center in Tupelo, Mississippi for the symptoms listed above, Plaintiff met Dr. Frank Nichols. Plaintiff explained the problems he had been having since the vein stripping surgery to Dr. Nichols and subsequently had an office consultation with Dr. Nichols on September 18, 2001.
¶ 10. While Simpson may not have been made specifically aware of the medical problem until Dr. Nichols advised him in October 2001, we are not persuaded that his late knowledge of the specifics of his injuries is sufficient to toll the running of the statute of limitations. Simpson knew from the very beginning, following the procedure performed by Dr. Lovelace, that something was not quite right. As previously observed, he suffered constant pain, swelling, and numbness at the site of the surgery. Therefore, since he chose to ignore the problem and thereby not discover the specific reasons for his pain, swelling and numbness which were recurrent at the cite of the surgery performed by Dr. Lovelace, we hold that the discovery rule does not apply. See Robinson v. Singing River Hospital System, 732 So.2d 204, 208 (¶¶ 17-19) (Miss.1999) (holding that the discovery rule does not apply where the plaintiff knew he had received second-degree burns while undergoing physical therapy even though he did not become aware that the burns were the result of a physical therapy treatment).
¶ 11. In our judgment, this case bears a striking resemblance to Robinson. There, the supreme court found that the plaintiff's injuries were not latent. Likewise, we find that Simpson's injuries were not latent. It is hard to imagine how Simpson could have continual pain, swelling, and numbness at the site of the surgery performed by Dr. Lovelace and not suspect negligence in the performance of the surgery.
¶ 12. The dissent, citing Schiro v. American Tobacco Co., 611 So.2d 962, 964 (Miss.1992) and Cannon v. Mid-South X-Ray Co., 738 So.2d 274, 276-77(¶ 13) (1999), attempts to distinguish Robinson by asserting (1) that knowledge of an injury does not commence the running of the statute of limitations, (2) the statute of limitations commences to run upon the *288 discovery of an injury, and that discovery is an issue of fact decided by a jury where there is a genuine dispute, and (3) Simpson was unaware of Dr. Lovelace's negligence.
¶ 13. First, neither case cited by the dissent is a medical negligence case. In medical cases such as this one, suit must be commenced within "two (2) years from the date of the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered." Miss.Code Ann. § 15-1-36(2) (Rev.2003). (emphasis added). Clearly the suit here was initiated beyond two years following the date of Simpson's surgery. Therefore, if Simpson is to prevail he must show that he, using reasonable diligence, could not have discovered Dr. Lovelace's negligence. We agree with the dissent that "discovery is an issue of fact decided by a jury where there is a genuine dispute." However, here, there is no dispute, much less a genuine dispute, on the issue of Simpson's diligence to discover. Simpson did nothing to discover; therefore, there is no issue to be resolved by the jury regarding the reasonableness of Simpson's acts or efforts to discover. We also agree with the dissent that the problems which Simpson experienced at the site of the surgery immediately after the surgery do not show or prove that Simpson "should have known that the injury was caused by Dr. Lovelace's alleged malpractice." However, what they do show or prove is that there was a basis for the initiation of reasonable diligence on Simpson's part such that might have allowed him to discover Dr. Lovelace's alleged acts of negligence.
¶ 14. On these facts, we find that Dr. Lovelace's alleged acts of negligence might have been discovered within the two-year time limit had Simpson engaged in due diligence to discover such and that he had a reasonable basis to initiate that diligence which he failed to do. Had he done so he likely would have acquired knowledge of the injury, the cause of the injury, and the causative relationship between the injury and the conduct of Dr. Lovelace. For the forgoing reasons, we find that Simpson's suit is barred by the applicable two-year statute of limitations. As a result, the trial judge did not err in granting the defendants' motions for summary judgment.
¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., MYERS, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CHANDLER, J., DISSENT WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J.
CHANDLER, J., Dissenting.
¶ 16. Because I believe that Dr. Lovelace failed to meet his burden of proof in establishing that Dennis Simpson reasonably should have known that his injuries were the result of an alleged medical malpractice, I respectfully dissent.
¶ 17. I begin this discussion by noting our standard of review in summary judgment cases. Summary judgment should be granted only when "there is no genuine issue as to any material fact." Miss. R. Civ. P. 56(c). We review a trial court's grant of summary judgment de novo, and we view the evidence in a light most favorable to the non-moving party, Dennis Simpson. Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss.1997). An application of the statute of limitations is also an issue to which the de novo standard applies. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45(¶ 10) (Miss.1999). "When doubt exists whether there is a fact issue, the non-moving party against whom the Summary Judgment has *289 been brought should be given the benefit of every reasonable doubt." Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). "If there should be error, it should be denying the Summary Judgment in favor of a full live trial." Id. at 363.
¶ 18. In a summary judgment motion, when the moving party has proven that he is entitled to summary judgment, the non-moving party must rebut by showing that there are indeed genuine issues for trial. The non-moving party must offer affidavits or other evidence that are (1)sworn (2) made upon personal knowledge and (3) made by a person competent to testify. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). I believe that Simpson has successfully rebutted Dr. Lovelace's showing that he is entitled to summary judgment. Simpson produced a sworn affidavit stating that, based on his personal knowledge, he was unaware of Dr. Lovelace's malpractice until October 12, 2001, when he had his consultation with Dr. Nichols. I believe that this affidavit was sufficient to create a genuine issue of fact.
¶ 19. When there is a genuine factual dispute, as opposed to a question of law, the question of whether a party is entitled to summary judgment should be decided by a jury, not a judge. "Occasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion." Smith v. Sanders, 485 So.2d 1051, 1053 (Miss.1986). I believe that this is a case in which reasonable minds can differ as to when Simpson should have known that his injuries were caused by Dr. Lovelace's alleged medical malpractice.
¶ 20. The Mississippi Supreme Court held that there are three specific elements a plaintiff must be aware of before the statute of limitations begins to run in a medical malpractice case. These elements consist of: (1) knowledge of an injury; (2) the cause of the injury and (3) the causative relationship between the injury and the conduct of the medical practitioner. Sanders, 485 So.2d at 1053. In this case, Dr. Lovelace has proven only that Simpson had knowledge of the injury in 1998. Dr. Lovelace's argument is that the severity of his pains should have put him on notice that the surgery was defective. The proof Dr. Lovelace presented is that Simpson experienced problems with the site of the surgery immediately after being discharged from the hospital, that he was put on notice because he was present when the treatment was conducted, and that he failed to pursue the claims because he failed to consult with doctors despite his severe pains. I fail to see how this proof conclusively shows that he should have known that the injury was caused by Dr. Lovelace's alleged malpractice.
¶ 21. In order for the statute of limitations to have been tolled, Simpson must have understood the connection between his injuries and the conduct of the defendant. Dr. Lovelace's procedures of removing varicose veins would be painful even if the surgery had been correctly performed. To a layperson, who has every reason to give his surgeon the benefit of the doubt, it may not be obvious that his injuries would create a suspicion of negligent conduct. Even though it may have been unwise of Simpson to have failed to follow up with medical treatment in 1999 and 2000, I believe that his failure to seek such treatment does not necessarily translate to a lack of diligence in pursuing his legal claims.
¶ 22. The Mississippi Supreme Court has held that the statute of limitations commences upon discovery of an injury, and that discovery is an issue of fact decided *290 by a jury where there is a genuine dispute. Schiro v. American Tobacco Co., 611 So.2d 962, 964 (Miss.1992). In Schiro, the court recognized that Schiro knew she had sustained some type of injury within six years of the detection of lung disease. Id. at 965. However, since the cancer had not been medically diagnosed, Schiro did not know what her actual injury was; therefore, any suit she brought would have been premature. Id. In Cannon v. Mid-South X-Ray Company, 738 So.2d 274, 276-77(¶ 13), this Court denied summary judgment brought by Cannon's former employer, a chemical manufacturer. Mid-South X-Ray Company contended that Cannon should have been charged with discovery of her injuries from the time she sought treatment for her illnesses. We rejected this contention because we believed that it required the diagnosis of a medical doctor to establish a connection between her workplace and her resulting illnesses. Id. at 277(¶ 14). Similarly, in this case, while Simpson experienced pain after the surgery and knew there was something unusual about the type of pain he was having, he had no reason to know that his pain was the result of Dr. Lovelace's failure to perform the surgery correctly. A jury can reasonably find that he did not have a concrete claim for malpractice until that moment in time that he was informed that Dr. Lovelace had performed the surgery incorrectly.
¶ 23. To prove that Simpson should have been aware that Dr. Lovelace committed malpractice long before October 12, 2001, the majority focuses on Robinson v. Singing River Hospital, 732 So.2d 204 (Miss.1999). This case is distinguishable from Robinson because the plaintiff in Robinson was immediately aware of the doctor's malpractice. Robinson was awake and was aware that he had sustained burns in physical therapy. The Mississippi Supreme Court granted summary judgment because Robinson's knowledge that the injuries were caused by the hospital was obvious: "The trial court found, and Robinson admits, that he knew of his injuries at the time they occurred. Even viewing the evidence in the light most favorable to Robinson, it is hard to imagine how one could receive second-degree burns while undergoing physical therapy and not suspect negligence on the part of the hospital and the physical therapist. Indeed, Robinson complained to the Singing River staff the packs were too hot the day the burns were received." Id. at 208(¶ 17). In this case, Simpson was unconscious while Dr. Lovelace performed surgery on him. Therefore, it was not immediately obvious to Simpson that he had a malpractice claim.
¶ 24. Ostensibly, Robinson bears important similarities to this case. After all, the Mississippi Supreme Court rejected Robinson's contentions that he was unaware of a medical malpractice claim until after he received correspondence from a doctor that his injuries were the result of his therapy treatments he received at the hospital. Id. at 206(¶ 7). However, the court rejected this argument because the facts showed that he hired an attorney five months after his treatment to pursue a possible claim against the hospital. In other words, he actually knew that he had a claim against the hospital, despite his statement to the contrary. Id. at 206(¶ 8). In this case, there is no evidence showing that Simpson knew that he had a possible claim against Dr. Lovelace until October 12, 2001.
¶ 25. I believe that there is a genuine dispute as to when Simpson should have reasonably discovered that his injuries were caused by medical malpractice. This dispute should be decided by a jury. I *291 would reverse the circuit court and deny summary judgment.
BRIDGES, P.J., JOINS THIS SEPARATE OPINION.
NOTES
[1] The trial court permitted Baptist Memorial Hospital to join the other defendants' motion for summary judgment.
[2] The actual surgery occurred on August 28, 1998.
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206 Ga. App. 373 (1992)
425 S.E.2d 393
SNAPPER POWER EQUIPMENT COMPANY
v.
CROOK.
A92A1441.
Court of Appeals of Georgia.
Decided November 19, 1992.
Gorby, Reeves, Moraitakis & Whiteman, Harold W. Whiteman, Jr., Andrew Nelson, for appellant.
Johnny B. Mostiler, for appellee.
COOPER, Judge.
In Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989), the Supreme Court held that an employer is not obligated to pay workers' compensation benefits to an injured worker who misrepresented his physical condition at the time he was hired if that misrepresentation is both relied upon by the employer and causally related to the subsequent injury for which the worker seeks compensation. We granted this discretionary appeal to consider whether an employer who institutes payments without an award when a worker is injured in 1987 may in 1990, after the decision in Rycroft, rely on Rycroft to suspend payments to that worker.
Appellee applied for a job with appellant in February 1986, falsely answering a number of questions on the application regarding his history of back problems. Appellee was hired and subsequently injured his back while lifting grass catchers in March 1987. Appellant instituted payment of workers' compensation benefits without an award at that time. Rycroft was decided in 1989, and in March 1990, appellant requested a hearing on its right to suspend appellee's benefits based on Rycroft, asserting that false statements on appellee's application were both relied on and causally related to appellee's subsequent injury. A hearing was held, and the administrative law judge ruled that appellant's request to suspend appellee's benefits approximately three years after it instituted payment of workers' compensation benefits without an award was not timely brought under OCGA § 34-9-221 (h). The ALJ further ruled that Rycroft would not be retroactively *374 actively applied under Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). The decision of the ALJ was adopted first by the full board and then by the superior court, from whose order appellant appeals.
1. OCGA § 34-9-221 (h) provides: "Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation."
This provision effectively establishes "a 60-day statute of limitation, the running of which results in a limitation as to the grounds upon which the employer/insurer can rely to controvert continued compensation." Carpet Transport v. Pittman, 187 Ga. App. 463, 468 (1) (370 SE2d 651) (1988). Appellant does not argue that its Rycroft defense is grounded on changed conditions or newly discovered evidence. Instead, appellant first argues that the 60-day limitation should not apply because appellant could not have controverted appellee's right to compensation based on misrepresentations in his employment application in a timely manner, since those misrepresentations did not provide the basis for a defense until Rycroft was decided in 1989. We do not agree that appellant could not have controverted appellee's entitlement to payment based on false statements made at the time of his employment prior to Rycroft. Rycroft was a logical outgrowth of existing common law and statutory principles of fraud and contract. Although this court had previously rejected a similar defense in Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654 (350 SE2d 299) (1986), the decision in that case was primarily based on lack of proximate cause between the misrepresentations and the injury. Rycroft did not overrule Ledbetter, but distinguished it. We see no reason why appellant could not have argued its facts and attempted to distinguish Ledbetter prior to the decision in Rycroft just as the employer in Rycroft did. Appellant is effectively arguing that parties should be excused from compliance with statutes of limitation whenever they seek to rely on a claim or defense whose validity is established by a judicial decision rendered after the limitation period has run. However, such a rule would severely undermine the court's and parties' interest in finality which statutes of limitation are meant to serve. See, e.g., Bryant v. Allstate Ins. Co., 254 Ga. 328, 331 (326 SE2d 753) (1985); see also Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (324 SE2d 194) (1984). Accordingly, we conclude that appellant cannot avoid the bar of OCGA § 34-9-221 (h) on the grounds that the Rycroft defense was so novel that appellant could not have raised it in a timely manner.
Appellant's second contention is that, since the Rycroft defense is judicially created, it should "take precedence over" and not be limited *375 by the legislatively created procedural requirements of OCGA § 34-9-221 (h). This argument is antithetical to all established principles of separation of powers and the role of the judiciary in interpreting a statutory scheme. "[C]onstruction belongs to the courts, legislation to the legislature." Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 715 (135 SE2d 383) (1964). Moreover, "[t]he legislative, judicial, and executive powers shall forever remain separate and distinct. . . ." 1983 Ga. Const., Art. I, Sec. II, Par. III. The workers' compensation scheme is the creation of the legislature. The courts may construe the legislation and fill in gaps by looking to common-law principles and other relevant statutes, as the Georgia Supreme Court did in Rycroft. See Rycroft, 259 Ga. at 159. A defense established in this manner does not take on a life of its own outside the statutory scheme, however, and certainly does not "take precedence over" statutory provisions. We therefore conclude that OCGA § 34-9-221 (h) applies to bar appellant's untimely assertion of a Rycroft defense in this case.
2. Because we have concluded that appellant's reliance on Rycroft is procedurally barred, we need not address appellant's additional arguments that the employer's defense established in Rycroft should be retroactively applied under the principles set forth in Flewellen v. Atlanta Cas. Co., supra, and that appellant has shown that the elements of the defense are present in this case.
Judgment affirmed. Sognier, C. J., and McMurray, P. J., concur.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2015*
Decided April 22, 2015
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐3093
CHRISTOPHER DIRIG, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:12‐cv‐549
WILLIAM WILSON, et al.,
Defendants‐Appellees. William C. Lee,
Judge.
O R D E R
Christopher Dirig, an Indiana prisoner, has sued the former warden and three
guards at his prison claiming that he was gratuitously beaten and abused in violation of
the Eighth Amendment. The district court granted summary judgment for the
defendants on the ground that Dirig’s failure to exhaust his administrative remedies
before filing suit is undisputed. Because Dirig was not adequately informed that
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14‐3093 Page 2
admissible evidence rather than unsworn allegations is necessary to oppose a motion for
summary judgment, we vacate the decision and remand for further proceedings.
The underlying facts, as Dirig tells them in his submissions to the district court,
are as follows. On April 19, 2011, the three guards, acting on orders from the warden,
beat him while he was in segregation on suicide watch. After taking him to a “dog‐like
cage” without security cameras, the guards sprayed him with Mace, spit on him,
undressed him, and chained him to a chair in the cage. The guards also hurled racial
slurs at him. Dirig was kept in the cage for over five hours and then placed in a
protective cell, still naked, without water, a mattress, blankets, or a working toilet.
The next day, Dirig contends, he reported the incident to a counselor who
promised to notify the warden. That was the last he heard from the counselor. Dirig was
released from suicide watch on May 5, 2011, and afterward he submitted a grievance
form to the executive assistant, who oversees the grievance process at the prison. The
executive assistant wrote Dirig (a copy of this letter is part of the record) saying that his
grievance form was untimely and would not be accepted but promising to pass Dirig’s
allegations along to Internal Affairs.
Dirig filed this suit in state court in August 2012, and the defendants removed it
to federal court. See 28 U.S.C.A. § 1441(a). After screening, see 28 U.S.C. § 1915A, the four
defendants filed a “motion to dismiss,” arguing that Dirig had not exhausted his
administrative remedies, see 42 U.S.C. § 1997e(a). They attached Dirig’s grievance
history and a declaration by a prison administrator attesting that “Dirig did not file a
grievance” about the cage incident. The administrator did not acknowledge, though,
that Dirig’s grievance was received but returned to him by the executive assistant. The
defendants’ motion and supporting memorandum of law mention “summary
judgment” only in passing, but still the defendants sent Dirig copies of Federal Rule of
Civil Procedure 56, Local Rule 56‐1, and a “Notice to Pro Se Litigant” in the form
mandated by paragraph (f) of the local rule.
Three days later, the district court sent Dirig its own Notice and Order. The
court’s order is explicit that the defendants had filed, not a motion for summary
judgment, but a motion to dismiss. In opposing that motion, the court’s order explains,
Dirig could rely “solely” on the allegations in his complaint, which would be “assumed
by the court to be true.” Dirig opposed the motion to dismiss, asserting that he had filed
a grievance, which the prison’s executive assistant rejected as late. His grievance was
delayed, Dirig said, because he was in segregation on suicide watch without paper or a
No. 14‐3093 Page 3
writing implement. Like the defendants, Dirig attached several documents to his
submission. But he did not verify any of his factual allegations concerning the grievance.
Because the parties had attached evidentiary materials to their submissions, the
district court issued a second order, this time explaining that the defendants’ motion to
dismiss would be deemed a motion for summary judgment and requesting further
briefing. See FED. R. CIV. P. 12(d). The court said the parties’ submissions were “not
sufficient for a summary judgment ruling” but did not tell Dirig what he must do to
make his opposition to the defendants’ motion “sufficient.” Dirig responded with
medical records confirming that he was in segregation on April 19, but again did not
verify statements about the delayed grievance.
The district court granted summary judgment for the defendants without
conducting an evidentiary hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
After noting that a “party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials,” the court concluded that Dirig had failed
to “present any evidence that he was precluded from exhausting” his administrative
remedies. The court rejected Dirig’s argument that he was unable to submit a grievance
while on suicide watch, explaining that Dirig had not submitted evidence showing when
he was released from segregation and thus regained access to writing instruments. The
district court also was skeptical that Dirig could not have gotten staff assistance in
preparing a grievance. Without prompting from the defendants, the district seized on a
mental‐health professional’s statement in Dirig’s medical records saying a guard told
her that Dirig participated in “recreation” on April 20, the day after he was placed on
suicide watch. The court further noted, again without prompting, that Dirig had not said
he took advantage of a prison regulation allowing prisoners to get help from staff to
write a grievance. The district court did not acknowledge, however, that the defendants
had never asserted, much less offered evidence, that they complied with a
corresponding regulation placing the onus on administrators to “ensure that a
mechanism is in place in each housing unit or Unit Team to ensure that
offenders . . . who have medical or psychological disabilities have assistance in
preparing and submitting a grievance form in accordance with this policy and
administrative procedure.” IDOC MANUAL OF POLICIES AND PROCEDURES, No. 00‐02‐301
(“Offender Grievance Process”) § XIV(A).
On appeal, Dirig’s opening brief is difficult to follow (his reply brief is much
clearer). Still, the defendants understand him to argue that whether or not an
administrative remedy was available to him is a disputed question. Prisoners are
No. 14‐3093 Page 4
required to exhaust only those remedies that are available. See Woodford v. Ngo, 548 U.S.
81, 85 (2006); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). And though the defendants
in their brief repeatedly insist that Dirig’s factual contentions are not supported by
“competent evidence,” it was their burden to prove the availability of a remedy, since
failure to exhaust is an affirmative defense. See Westefer v. Snyder, 422 F.3d 570, 577, 580
(7th Cir. 2005); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
In a different case, the defendants’ focus on Dirig’s continued use of unsworn
allegations at summary judgment would be a fair—and probably dispositive—point. But
not in this case. The defendants’ position presupposes that Dirig was appropriately
notified about the import of submitting evidence in response to a motion for summary
judgment. When a defendant moves for summary judgment against an unrepresented
prisoner, the prisoner must be notified “of the consequences of failing to respond with
affidavits” or other evidence. Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982);
see Bryant v. Madigan, 91 F.3d 994, 996 (7th Cir. 1996); see also Timms v. Frank, 953 F.2d 281,
285 (7th Cir. 1992) (extending rule of Lewis to all pro se plaintiffs). If the defendant does
not supply the required notice, then the responsibility to do so falls on the district court.
See Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992).
Dirig did not receive adequate notice. Although the defendants included a notice
with their “motion to dismiss,”1 the district court promptly negated that notice by
issuing an order that is directly contradictory. The court’s order, which the defendants
nowhere acknowledge in their brief, recites the standard for a motion to dismiss. That
order assured Dirig that he could rely “solely” on factual allegations “in defending
against” the motion to dismiss, since the court would assume those allegations to be
true. When the district court later converted the defendants’ motion to dismiss into one
for summary judgment, the court did not recite the standard for summary judgment or
alert Dirig that his task in responding was significantly greater than what the court had
told him previously. Thus, Dirig never received notice that evidence is necessary to
counter a motion for summary judgment. See Jones v. Simek, 193 F.3d 485, 489 (7th Cir.
1 The notice provided by the defendants is taken verbatim from Appendix C of
the Northern District of Indiana’s local rules. See N.D. IND. L.R. 56‐1(f). But we question
whether the prescribed form satisfies our admonition that a Lewis notice include the text
of Federal Rule of Civil Procedure 56 and also explain in “ordinary English” that
evidence is essential to combat a motion for summary judgment. See Timms, 953 F.2d at
285; Lewis, 689 F.2d at 102. The “ordinary English” portion of the defendants’ notice
nowhere mentions affidavits or other evidence.
No. 14‐3093 Page 5
1999) (explaining that district court must provide notice under Lewis when effectively
treating motion to dismiss as motion for summary judgment); Lewis, 689 F.2d at 101–02
(requiring notice when party moves to dismiss or alternatively for summary judgment
and court treats as motion for summary judgment). The defendants did nothing to
remedy the court’s oversight, which is another fact not mentioned to us in their brief.
Reversal for failing to notify a pro se plaintiff about the means of opposing a
motion for summary judgment is appropriate if the plaintiff suffered prejudice.
See Outlaw v. Newkirk, 259 F.3d 833, 841–42 (7th Cir. 2001); Timms, 953 F.2d at 286. Dirig
was prejudiced because he alleged facts that, if sworn, would have created disputed
issues of material fact concerning the availability of a remedy for him to exhaust.
See King v. McCarty, No. 13‐1769, 2015 WL 1396611, at *2 (7th Cir. Mar. 27, 2015); Hurst v.
Hantke, 634 F.3d 409, 411 (7th Cir. 2011). Under Indiana’s grievance procedures, Dirig
first had to seek an informal resolution within five working days of the incident by
speaking with a designated staff member, including a counselor. See IDOC MANUAL OF
POLICIES AND PROCEDURES, No. 00‐02‐301 (“Offender Grievance Process”) § XIII(A), (C).
He then had to submit a grievance within five working days of the earliest of (1) being
told that an informal resolution was impossible, (2) refusing the offered resolution, or (3)
waiting ten working days and receiving no reply to the request for an informal
resolution. See id. § XIII(C).
Dirig contends that he told a counselor about the assault on April 20, 2011, and
that same day received her reply that she would tell the warden. If Dirig rejected this
resolution as insufficient the same day, then he had until April 27 to submit his
grievance. Dirig insists, though, that he was kept in segregation on suicide watch until
May 5. While in segregation, he contends, he lacked access to paper and writing
implements. He also tells us, in response to the district court’s assumption that he could
have requested staff assistance in preparing a grievance, that he did not have access to
the grievance procedures and also was brushed off each time he asked to speak with a
shift supervisor. To this we add that the defendants have never asserted that Dirig
previously had submitted grievances while on suicide watch or that they had complied
with the requirement to provide a “mechanism” to ensure that inmates in his position
would “have assistance in preparing and submitting a grievance form.”
Under Dirig’s version of events, he was unable to submit a grievance during the
relevant time period, making the remedy unavailable. See Dole v. Chandler, 438 F.3d 804,
807, 811 (7th Cir. 2006); Kaba, 458 F.3d at 684; Dale, 376 F.3d at 656. And if Dirig had been
told of the need to respond with affidavits at summary judgment, then he could have
No. 14‐3093 Page 6
sworn to these facts. This would have created disputed factual issues regarding
exhaustion, necessitating an evidentiary hearing. See Wagoner v. Lemmon, 778 F.3d 586,
591 (7th Cir. 2015); Pavey, 544 F.3d at 742.
The judgment of the district court is VACATED, and the case is REMANDED for
further proceedings consistent with this order against William Wilson, Aaron Jonas,
Ralph Calhoun, and William Aubin.
| {
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} |
761 F.2d 1227
79 A.L.R.Fed. 649, 53 USLW 2574
UNITED STATES of America, Appellee,v.Geary David POWELL, James F. Barfield, and Bill Barfield,Appellants.UNITED STATES of America, Appellee,v.Charles Bruce NABORS, Appellant.UNITED STATES of America, Appellee,v.Louis Kenneth RISKEN, Appellant.UNITED STATES of America, Appellee,v.Bayard SPECTOR, Appellant.UNITED STATES of America, Appellee,v.Kent August MOECKLY, Appellant.UNITED STATES of America, Appellee,v.William Joseph COULOMBE, Appellant.
Nos. 84-2430, 84-2439, 84-2449, 84-2493, 84-5223 and 84-5225.
United States Court of Appeals,Eighth Circuit.
Argued Jan. 17, 1985.Order Filed Jan. 22, 1985.*Opinion Filed May 1, 1985.*Rehearing and Rehearing En Banc in Nos. 84-5223 and 84-5225Denied June 10, 1985.
1
Donald Wolff, Ir. Baris, St. Louis, Mo., Philip Resnick, Mark W. Peterson, Minneapolis, Minn., and Philip Miller, Des Moines, Iowa, for appellants.
2
Sam Rosenthal, Washington, D.C., for appellee.
3
Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, en banc.
4
ARNOLD, Circuit Judge, with whom LAY, Chief Judge, and HEANEY, BRIGHT and ROSS, Circuit Judges, join.
5
On October 12, 1984, the Comprehensive Crime Control Act of 1984, Title II of Pub.L. No. 98-473, 98 Stat.1976, became law. Chapter I of this Act is known as the Bail Reform Act of 1984, and Section 203(a) of this chapter, 98 Stat.1976, 1981-82, enacts new standards for the admission to bail of convicted persons pending their direct appeal. The new provision, to be codified as 18 U.S.C. Sec. 3143(b), provides as follows:
6
(b) Release or Detention Pending Appeal by the Defendant.--
7
The judicial officer [usually a district judge, a circuit judge, or a court of appeals] shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for writ of certiorari, be detained, unless the judicial officer finds--
8
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to section 3142(b) or (c); and
9
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
10
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).
11
In each of the appeals now before us, the District Court found that the defendants were not likely to flee or pose a danger to the safety of any person or the community. Bail pending appeal was nevertheless denied, the Court being convinced that the requirements set forth in paragraph (2), quoted above, had not been met. In each case, the District Court held that the appeal did not raise "a substantial question of law or fact likely to result in reversal or an order for a new trial." Our first task is to interpret this phrase and to describe, as helpfully as possible, how it is to be applied. Next, we must consider whether the statute, as so interpreted, is constitutional. And finally, we shall explain how this standard has been applied in the individual cases before us.
12
The United States takes the position that the portion of the statute in question requires two separate determinations: (1) whether the appeal raises a substantial question, and (2) whether, if the defendant prevails on this question, reversal or an order for a new trial is likely. The government further argues that a question is "substantial" for this purpose if the defendant's argument on the question has a substantial chance or a substantial likelihood of prevailing on appeal. This requirement, according to the government, means that an argument must be more than simply nonfrivolous, but need not be so compelling as to require the conclusion that it is more likely that the defendant will win the argument than lose it. Rather, the government says, an argument is "substantial" for this purpose if the question is a close one or one that could very well go either way.
13
If a question presented by an appellant passes this part of the test, the government continues, it should then be asked whether, assuming the question is decided in favor of the defendant, it is more probable than not that reversal of the conviction or a new trial will be required. To make this determination, the Court must assume that the defendant's argument will prevail on appeal and assess the impact of the assumed error on the conviction in view of the entire record. If, for example, the strength of the prosecution's case makes clear that the assumed error had no effect on any substantial right of the defendant, or if the assumed error, even though not harmless, would affect fewer than all the counts on which defendant has been sentenced to imprisonment, release pending appeal would not be appropriate, despite the existence of a "substantial question."We hold that this interpretation of the statute is correct and that the new law, as so construed, is constitutional.
I.
14
We have the benefit of opinions on this question from three other circuits, the Third, the Eleventh, and the Ninth.
15
United States v. Miller, 753 F.2d 19 (3d Cir.1985), was the first appellate opinion filed on the subject. The Court held that two separate showings must be made by a defendant to satisfy the language in question: first, that the question of law or fact presented by the appeal is "substantial; " and second, that if the defendant prevails on that question, either a reversal or an order for a new trial, of all counts on which imprisonment has been imposed, is likely. By "substantial," the Court explained, it meant a "significant question at issue ... which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." 753 F.2d at 23. The second part of the statutory standard, the one referring to likelihood of reversal, the Court read as requiring that the question presented, assuming its decision in appellant's favor, be "important to the merits," ibid., or "so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial," ibid. As examples of questions that would not qualify under this second element of the standard, the Court mentioned errors that are "harmless, ... have no prejudicial effect, or ... have been insufficiently preserved." Ibid. Miller thus requires appealing defendants (the burden rests upon them to establish their right to bail) to make two kinds of showings relevant in the present context: that the question is substantial, and that reversal or a new trial is likely if it goes in defendant's favor.
16
The next case decided by a court of appeals on this issue was United States v. Giancola, 754 F.2d 898 (11th Cir.1985) (per curiam). The Eleventh Circuit, referring to "the thoughtful analysis of ... Judge Sloviter" for the Third Circuit in Miller, 754 F.2d at 900, adopted the same basic two-part approach, subject to one important qualification with respect to the first part of the analysis. It defined a "substantial question" not simply as one on which there is no controlling precedent, but as "a 'close' question or one that very well could be decided the other way." 754 F.2d at 901. Such a question, the Court said, "is one of more substance than would be necessary to a finding that it was not frivolous." Ibid. "[A]n issue could well be insubstantial even though one could not point to controlling precedent.... [T]here might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits." Ibid.
17
The last appellate opinion (as of this writing) on the subject is United States v. Handy, 753 F.2d 1487 (9th Cir.1985) (per curiam). Like Giancola, Handy followed the two-part analytical framework first set out in Miller. The statute, Handy said,
18
should be interpreted to read that "substantial" defines the level of merit of the question presented and "likely to result in reversal or an order for a new trial" defines the type of question that must be presented.
19
753 F.2d at 1489 (emphasis in original). The Handy Court appeared to adopt Miller so far as the second part of the analysis is concerned. As for the meaning of "substantial," it offered the phrase " 'fairly debatable,' " 753 F.2d at 1490, as a definition.
20
These opinions make our task considerably easier. We need not repeat much of the history and analysis contained in them. Like the Ninth and Eleventh Circuits in Handy and Giancola, we are indebted to the Third Circuit's pathfinding effort in Miller, and we also adopt the basic two-part approach to the statute it put forward. We do so with certain observations and qualifications of our own, however. First, as to whether a question is "substantial," we choose to follow Giancola ("a 'close' question or one that very well could be decided the other way") rather than Miller ("novel," "not ... decided by controlling precedent," or "fairly doubtful") or Handy (" 'fairly debatable' "). We believe Giancola is more responsive to the announced purpose of Congress, which was, bluntly, that fewer convicted persons remain at large while pursuing their appeals.
21
Under prior law, release on bail pending appeal was the normal practice. It was the rule, not the exception, and there was a presumption in favor of release. So far as presently pertinent, the Bail Reform Act of 1966, Sec. 3(a), 80 Stat. 214, 215-16 (formerly codified as 18 U.S.C. Sec. 3148), required that bail be granted unless "it appears that an appeal is frivolous or taken for delay." Congress passed the new law because it was unhappy with the old one. "The change ... requires an affirmative finding that the chance for reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct." S.Rep. No. 98-225, 98th Cong., 1st Sess. 27 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3210. Further, under the prior law the government had to show, if it wanted bail denied, that the appeal was frivolous or taken for delay. (See advisory notes to former Rule 9(c) of the Federal Rules of Appellate Procedure.) Rule 9(c) of the Federal Rules of Appellate Procedure was amended by Section 210 of Pub.L. No. 98-473, 98 Stat. 1987, to conform with the new Section 3143(b). But under the new law, "the burden of showing the merit of the appeal should now rest with the defendant." S.Rep. No. 98-225, supra, at 27 n. 86. Senator Thurmond, Chairman of the Senate Committee on the Judiciary and manager on the Senate floor of the bail-reform bill that was later incorporated into the Comprehensive Crime Control Act of 1984, expressed the same thought when he said that a major purpose of the bill is to "reverse the presumption in favor of releasing individuals who have been found guilty.... Once someone has been found guilty, there is no longer a presumption of innocence...." 130 Cong.Rec. S938 (daily ed. Feb. 3, 1984). See also p. 386 of the President's Message to the Congress proposing what was then called the Comprehensive Crime Control Act of 1983, which is a relevant piece of legislative history because the language that became law came from this proposal by the Executive Branch.
22
The Handy and Miller formulations of what "substantial question" means would not work much of a change in prior law. The authorities Handy cites in favor of its "fairly debatable" definition--opinions of Circuit Justices on bail applications--all predate by many years the Bail Reform Act of 1984 and reflect the previous view, long entrenched in our law, that bail is the rule rather than the exception, to be granted whenever a nonfrivolous question is raised. And under Miller the term "substantial question" seems to be defined without any regard for the probability of success on appeal. We think the Giancola formulation is more faithful to the purpose of Congress. We doubt that Congress would have gone to the trouble of passing a new statute to obtain no more change than is brought about by either Miller or Handy. In short, a judge considering the question of bail pending appeal need not hold (as one reading of the statute, discussed below, would require) that he or she has probably made a mistake. But bail can be granted only if the question is close, one that could go either way. The formulation is inexact--though probably less so than prior law--, but we think experienced judges and lawyers will find it reasonably easy to apply. Bail will be less frequent; it will be the exception, not the rule. That may not be wise policy. Certainly it is not what we are accustomed to. But it is the command of the sovereign, expressed by the people's elected representatives, and we are obliged to receive and apply it hospitably.
23
We turn next to the task of elaborating the meaning of the second part of the standard that a defendant must meet--"likely to result in reversal or an order for a new trial." The Third Circuit in Miller gave some examples of arguments that would not meet this standard--for example, a harmless error, or a question as to which the defendant had not sufficiently preserved his record. We agree completely with Miller as far as it goes in this regard, but we believe an additional comment is in order. The Miller approach tells us some kinds of errors do not qualify as "likely to result in reversal," but it does not tell us what sorts of errors do qualify, nor does it lay down a comprehensive standard for judging whether a given question falls in one group or the other. The issue here is the meaning of the word "likely" in the statute. We believe the word should be read in its ordinary sense, as referring to something that is more likely to happen than not.
24
If one asks whether a horse is likely to win a race, and the answer is yes, the person who asked the question naturally understands that the chances of the horse's winning are greater than those of its losing. He would not ordinarily believe that a "yes" answer meant only that the horse had a greater than negligible (in the legal context, nonfrivolous) chance of winning. We hold, therefore, that in order to satisfy this part of the test for bail pending appeal, a defendant will have to show that the substantial question presented (assuming that part of the standard has already been met) will more probably than not, if decided in defendant's favor, lead to a reversal or an order for new trial on all counts on which imprisonment has been imposed. (An argument that would produce a reversal of fewer than all such counts would be insufficient in this context, because if one count imposing imprisonment survives, the reason for allowing bail pending appeal, that a defendant should not be imprisoned under a legally erroneous sentence, disappears.)
25
We shall not leave the subject before responding to a question that may be in the mind of the reader. The statute says, "substantial question of law or fact likely to result in reversal...." Why not interpret it in what may be the most natural and immediately obvious sense, as requiring the defendant to show that the question presented will more likely than not result in reversal? To this question there are several answers. In the first place, none of the parties before us urges this position, not even the government, though it once did embrace it, only to abandon it later. Of course we are bound to interpret the statute in accordance with Congress's intention, no matter what positions the parties take before us, and no concession, even of the United States, is binding on the courts, but still it would be awkward to adopt a posture more zealous than that of the prosecution. Second, such a position, if adopted, would put us squarely in conflict with each of the three circuits that have already ruled on the question, and the conflict would be of the most fundamental sort, not like the relatively minor differences in statutory approach that we have outlined above in this opinion. And finally, to require a defendant to show that the particular question urged is more likely to produce a reversal than an affirmance would, as the Miller opinion properly observes, make the word "substantial" in the statute redundant, for Congress could have accomplished such a result simply by requiring that a defendant show that he or she is raising a "question of law or fact likely to result in reversal." No doubt Congress sometimes repeats itself for the sake of emphasis, just as we all do, but in the interpretation of statutes it is usually the safer course at least to try to attribute a separate and additional meaning to each word and phrase in the law. When we do so here, we are driven to the conclusion that the phrase "likely to result in reversal" must mean something beyond the word "substantial." For these reasons, we reject what may be the simpler interpretation of the law and adopt the two-part analysis first used in Miller and elaborated in this opinion.
26
To sum up: We hold that a defendant who wishes to be released on bail after the imposition of a sentence including a term of imprisonment must first show that the question presented by the appeal is substantial, in the sense that it is a close question or one that could go either way. It is not sufficient to show simply that reasonable judges could differ (presumably every judge who writes a dissenting opinion is still "reasonable") or that the issue is fairly debatable or not frivolous. On the other hand, the defendant does not have to show that it is likely or probable that he or she will prevail on the issue on appeal. If this part of the test is satisfied, the defendant must then show that the substantial question he or she seeks to present is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor. In deciding whether this part of the burden has been satisfied, the court or judge to whom application for bail is made must assume that the substantial question presented will go the other way on appeal and then assess the impact of such assumed error on the conviction. This standard will, we think, carry out the manifest purpose of Congress to reduce substantially the numbers of convicted persons released on bail pending appeal, without eliminating such release entirely or limiting it to a negligible number of appellants.
II.
27
Is the statute as so interpreted constitutional? The constitutional objection most strongly urged before us on these appeals is that the statute, if interpreted to require a defendant to show that the particular question presented will more probably produce a reversal than an affirmance, so unreasonably restricts the right of bail pending appeal as to deny liberty without due process of law, in violation of the Fifth Amendment, or to constitute "excessive bail," in violation of the Eighth Amendment, or both. Since we have not adopted this construction, this constitutional objection disappears. We entertain no doubt that the interpretation of the statute we have adopted is fully consistent both with the Due Process Clause of the Fifth Amendment and with the Bail Clause of the Eighth Amendment. Under our interpretation, judges considering bail applications, trial or appellate, will apply an objective standard and will weigh the probabilities according to this standard in a manner long familiar to the bench, for example in connection with motions for injunctions or stays pending appeal.
28
A couple of other constitutional arguments, nonfrivolous but insubstantial, deserve brief mention. It is suggested that the new statute, as applied to defendants whose alleged crimes were committed before its effective date, October 12, 1984, violates the Ex Post Facto Clause. The Third Circuit in Miller has already answered this argument sufficiently. Admission to bail pending appeal is, for Ex Post Facto Clause purposes, "procedural." It does not increase the punishment for a crime already committed, but simply regulates the time at which imprisonment for that crime will begin after conviction.1
29
We are also told that the entire Bail Reform Act of 1984, and, presumably, the entire Comprehensive Crime Control Act of 1984, is unconstitutional because it went to the President not as a bill but as a joint resolution. Joint resolutions, to be sure, are usually employed, the parliamentary manuals tell us, for subsidiary, inferior, or temporary kinds of legislation. Indeed, in this very case the Comprehensive Crime Control Act of 1984, including the bail-reform provisions, has become law by way of amendment to a joint resolution making "continuing appropriations" for the operation of the federal government, appropriations, that is, to enable certain departments and agencies to continue their work temporarily until the regular appropriations bills for those departments and agencies could be passed. Such continuing resolutions have become a regular feature of the congressional landscape towards the end of almost every fiscal year and, since, in theory at least, the government, or part of it, will come to a halt if the continuing resolution is not signed into law, they are considered "veto proof," or nearly so, and members of Congress with cherished projects of their own strive to attach them as amendments to the continuing-appropriations joint resolution, secure in the knowledge that the President cannot veto part of a measure. Appellants complain that this kind of legislation tends to be hasty and ill-advised, and they may be right, but that is none of our affair. The fact that the words at the top of the first page of a law are "a bill" instead of "a joint resolution" is of significance only for internal congressional purposes. A joint resolution, once signed by the President, is every bit as much of a law as a bill similarly signed. Our task is simply to hold the Congress within the limits of the power given it by the Constitution, not to pass judgment on matters of legislative practice.
30
In short, we hold that new Section 3143(b) of Title 18, as enacted by the Bail Reform Act of 1984, is constitutional.
III.
31
We have already announced our rulings on the various applications for bail presented by these cases. We shall now briefly explain how these rulings follow from the standards set forth in this opinion.2
32
In No. 84-2430, defendants Geary Powell, James Barfield, and William Barfield were convicted of illegally transporting aliens in violation of 8 U.S.C. Sec. 1324(a)(2) (1982). In their application for bail pending appeal, defendants list three principal issues for reversal of their convictions: (1) that the evidence fails to support the verdict; (2) that the prosecutor's personal interpretations of testimony given in Spanish by a witness were improper; and (3) that the court failed to take sufficient measures to protect them against the prejudicial effect of pretrial publicity. We of course have not given these arguments plenary consideration. In the context of applications for bail pending appeal, we must carefully and objectively assess the chances of success on the questions presented, as well as the probability that success on these questions will produce a reversal or an order for a new trial, as explained above. We necessarily cannot and do not rule finally on the merits of the appeal. That ruling will come after the appeal is submitted to a panel for decision in the usual course. Having considered the arguments that defendants seek to raise, we hold that they have not met the statutory standard. Although the questions are not frivolous, and although at least one of them (insufficiency of the evidence) would surely produce a reversal if we ultimately were to agree with it, they are not close enough to be "substantial" within the meaning of the statute. At the risk of repeating ourselves, we emphasize that this holding is tentative, in the sense that it is without prejudice to whatever the panel deciding the appeals may determine after full briefing, argument, and study.
33
In No. 84-2439, Charles Bruce Nabors was convicted of bank robbery and of conspiracy to rob a bank. He was sentenced to imprisonment on both counts, the terms to run concurrently. In support of his appeal, he urges that there was a variance between the copy of the indictment given him and the copy used by the prosecution at trial, in that the later version of the indictment contained an overt act omitted from the version that had been delivered to the defendant. He also argues that the prosecutor's final argument called attention to his failure to testify and impermissibly invited the jury to make an inference unfavorable to him from his silence. The first argument, even if it succeeded, would apparently go only to the conspiracy count, so on that score it would fail the "likely to result in reversal" element of the test. Furthermore, whatever error may have occurred may have been cured by the District Court's prompt admonition to the jury not to consider the additional overt act. As for the prosecution's closing argument, we have read the transcript, and, subject to whatever briefing and further study might develop, it seems that the argument was more an attack on counsel for the defense for failing to advance certain theories, than it was a reference to the defendant's personally failing to take the stand. The second argument, in other words, does not seem close, and the first one, even if it is "substantial," would, even if successful, produce a reversal on only one of the two counts on which imprisonment has been imposed.
34
In Nos. 84-5223 and 84-5225, Kent August Moeckly and William Joseph Coulombe were convicted of three counts of conspiracy to import and to possess with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841, 846, 952, and 963 (1982). In addition, Moeckly was convicted of two counts of perjury, in violation of 18 U.S.C. Sec. 1623 (1982). In their joint memorandum in support of their application for bail, defendants argue that they have a substantial chance of prevailing on appeal, but they do not offer specific issues that they claim will have this effect. While this sort of application might have been acceptable under the old law, it gives us nothing specific with which to work, and we cannot say that defendants are raising "substantial" questions within the meaning of the new statute.
35
In No. 84-2493, Bayard Spector was convicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1982) and one count of interstate travel in furtherance of the cocaine offense, in violation of 18 U.S.C. Sec. 1952 (1982). Defendant seeks to raise a number of issues on the appeal, but we need to discuss only one. He claims that a key witness for the government was induced to testify by a promise that he would receive favorable treatment on charges pending against him if his testimony led to "successfully solving and prosecuting crimes." This language, defendant says, can be taken to mean that Adams would not receive favorable treatment unless he, Spector, were convicted by the jury, and this sort of incentive, it is argued, creates too great a likelihood of perjury.
36
The argument is similar in many respects to a contention upheld by a panel of this Court in United States v. Waterman, 732 F.2d 1527 (8th Cir.1984). Rehearing en banc was granted on the government's petition in Waterman, an action which under our practice has the legal effect of vacating the panel opinion, but the subsequent history of the case compels a holding that the issue is "close," one that could go either way. For after argument to the Court en banc, the conviction was affirmed by an equally divided vote of four to four. 732 F.2d 1527, 1533 (8th Cir.1984) (order) (en banc), petition for cert. denied, --- U.S. ----, 105 S.Ct. 2138, 85 L.Ed.2d 496 (1985). One judge did not participate because of illness at the time of the en banc argument, but he had been a member of the original panel and had voted to reverse the conviction at that time, so the vote to reverse might have been five to four had all active members of the Court participated in the en banc argument. However that may be, a question on which this Court is evenly divided must be the easiest kind of issue to label "close." There may be distinctions between the agreement with the government witness in this case and that at issue in Waterman, and no doubt these distinctions will be argued in the briefs in Spector's appeal, but we think the question is still clearly a "substantial" one for present purposes. And, if Spector prevailed on this question, which relates to the government's key witness, it would likely require reversal or a new trial. Again, our decision is for bail purposes only and without prejudice to whatever conclusion the panel which hears this appeal may reach after plenary consideration.
37
In No. 84-2449, Louis Kenneth Risken was convicted of four counts involving conspiracy to have a grand-jury witness murdered and making false statements to a second witness to influence his testimony before the grand jury. Violations of 18 U.S.C. Secs. 1503, 1512(a)(2)(A), 1502, and 1512(a)(1) (1982) were alleged. As to counts I and IV, the charges involving harassment and intimidation by force, defendant argues that he could be prosecuted only under Sec. 1512 and not under Sec. 1503, on the ground that when Sec. 1512, relating specifically to attempts to influence a witness by intimidation, physical force, threats, or misleading conduct, was enacted, Sec. 1503, which had covered generally unlawful efforts to influence or intimidate jurors, officers, and witnesses, was amended by striking any reference to witnesses. This argument, that threats against witnesses are henceforth to be dealt with only under Sec. 1512, has been accepted by at least one other circuit, United States v. Hernandez, 730 F.2d 895, 899 (2d Cir.1984), and there is no authority directly on the point in this circuit. We think this sort of argument clearly falls in the category of questions that could go either way. In addition, defendant claims that after the trial he learned that a key government witness had been paid $5,000, whereas at trial the witness testified that he had received only $500 and had not been guaranteed any additional payment by the government. On the record that was before us at the time we considered the bail application, we could not be certain whether there had been a misrepresentation by the government on this score. It is possible that the additional payment was made to the witness after he had testified, and that in fact no promises of additional payments had been made to him. Still, the additional payment, coming so soon after the conclusion of the trial, may have been reasonably forseeable by the government at the time of trial, and, if so, it seems to be the sort of thing that the government or its witness ought to have revealed. Whether in fact this argument turns out to be a strong one we cannot forecast with certainty at this point, but on the basis of the papers before us we believe it should be classified as a "close" question. Also, this question pertains to a key government witness, and if Risken won on this point, reversal or a new trial would be likely.
IV.
38
For the reasons given in this opinion, we deny the applications for bail pending appeal of the appellants Powell, James Barfield, William Barfield, Nabors, Moeckly, and Coulombe, and the decisions of the district courts denying their applications are affirmed. We grant the applications for bail pending appeal of the appellants Bayard Spector and Louis Risken. The decisions of the district courts denying their applications are reversed, and the causes remanded to the district courts with directions to enlarge them on bail upon such terms and conditions as may be reasonable, all in accordance with our order entered on January 22, 1985.
39
It is so ordered.
APPENDIX
ORDER RESPECTING BAIL PENDING APPEAL
40
PER CURIAM.
41
The motion of appellant Bayard Spector for release on bail pending appeal is granted, subject to such reasonable terms and conditions as the District Court may fix in its discretion. The District Court is requested to set these terms and conditions forthwith.
42
ROSS, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, would deny the motion for bail pending appeal at this time and remand for further consideration by the District Court.
43
The motion of Louis Kenneth Risken for release on bail pending appeal is granted, subject to such reasonable terms and conditions as the District Court may fix in its discretion. The District Court is requested to set such terms and conditions forthwith.
44
ROSS, FAGG, and BOWMAN, Circuit Judges, would deny the motion for release on bail pending appeal at this time and remand for further consideration by the District Court.
45
The motions of Kent August Moeckly, William Joseph Coulombe, Geary David Powell, James Barfield, Bill Barfield, and Charles Bruce Nabors for release on bail pending appeal are denied, and the orders of the District Courts denying bail pending appeal for these appellants are affirmed.
46
LAY, Chief Judge, HEANEY, BRIGHT, and McMILLIAN, Circuit Judges, would vacate the orders of the District Courts denying these appellants' motions for release on bail pending appeal and remand these cases for further consideration.
47
Opinions will be filed in due course expressing the views of the Court and of the various dissenting judges that have led to this order.
48
Let the mandates issue forthwith.
49
It is so ordered.
50
LAY, Chief Judge, concurring.
51
I concur in the court's interpretation of 18 U.S.C. Sec. 3143(b), but write separately to address Judge Gibson's dissent. The dissent finds fault with the majority's interpretation of the 18 U.S.C. Sec. 3143(b) requirement that a defendant must raise a "substantial question of law or fact likely to result in reversal or an order for new trial." Rather than follow a two-part objective analysis of the statutory phrase, the dissent would interpret the provision literally, and rely on the "objective detachment and conscience of a district judge * * * " to avoid the inherent subjectivity in the literal test. I respectfully must disagree. District judges have found a literal reading of the statute difficult to apply. See United States v. Miller, 753 F.2d 19, 22 (3rd Cir.1985) (quoting the district judge's observation that "the Act 'practically means that the district judge has to determine that he has probably made an error in the decision that he has rendered in the lower court * * *.' ") (citation omitted).
52
More significantly, a subjective interpretation of the statute creates serious due process and other constitutional questions which are obviated under this court's holding. I would find it extremely difficult to concur in the constitutionality of section 3143(b) if the dissenting view were the prevailing one.
53
McMILLIAN, Circuit Judge, concurring in part and dissenting in part.
54
I concur in most of the majority opinion's analysis. I fully agree with the majority opinion's interpretation of the second or "likely to result in reversal or an order for new trial" part of the two-part analysis. I believe that the majority opinion's interpretation of the second part is essentially the same one set forth by the Third Circuit in United States v. Miller, 753 F.2d 19, 23 (1985), although the majority opinion has helpfully clarified and elaborated upon the language in United States v. Miller. Where I disagree with the majority opinion is the first or "substantial question" part of the analysis. I would prefer to adopt the interpretation of the first or "substantial question" part set forth by the Third Circuit in United States v. Miller, id., instead of the narrower interpretation set forth by the Eleventh Circuit in United States v. Giancola, 754 F.2d 898, 901 (1985) (per curiam).
55
I also agree that the provision for release on bail of convicted persons pending direct appeal in the Bail Reform Act of 1984, as interpreted in the majority opinion, is constitutional.
56
JOHN R. GIBSON, Circuit Judge, with whom BOWMAN, Circuit Judge, joins, concurring in part and dissenting in part.
57
I concur in the actions of the court today, except that I would reject Bayard Spector's application for bail pending appeal. Further, I am in agreement with much of what the court says. However, because I believe the majority essentially has rewritten an act of Congress rather than given the act its natural, reasonable interpretation, I express my separate views and, particularly, my understanding of the phrase "likely to result in reversal or an order for a new trial."
58
I acknowledge the seductive appeal of the court's opinion. The logic of its exegesis, I suppose, may at first glance leave one with every reason not to oppose it. Nonetheless, I believe that to the question the majority poses--"Why not interpret it [i.e., the statutory language] in what may be the most natural and immediately obvious sense, as requiring the defendant to show that the question presented will more likely than not result in reversal?"--the proper answer is that such an interpretation is, in fact, correct. Such a construction not only adheres to the clear language of the statute but also bears out the intent and purpose of Congress.
59
I have no quarrel with the court's interpretation of the phrase "substantial question." To define it as "a close question" or "one that could go either way" is a more workable, practical test than those given in United States v. Miller, 753 F.2d at 23, although the tests there articulated, ("whether the question is "novel," "not decided by controlling precedent," or "fairly doubtful") may have some value in fleshing out the simplicity of the court's expressed formula.1
60
However, when the court reaches the second phase of its inquiry, it construes the phrase "likely to result in reversal or * * * a new trial" simply to mean that prejudicial error is required. The court sets out the only legislative history that bears at all on the meaning of this phrase: "The change [in the law] * * * requires an affirmative finding that the chance for reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct." S.Rep. No. 98-225, 98th Cong., 1st Sess. 27 (1983), U.S.Code Cong. & Admin.News p. 3210. Further, the court correctly observes that the word "likely" "should be read in its ordinary sense as referring to something that is more likely to happen than not."2 Supra at 1233.
61
However, the court then simply rewrites the statute in accord with its view of reasonableness by, in essence, inserting the phrase "if decided in defendant's favor" between the word "likely" and the phrase "to result in reversal or * * * a new trial." This reduces the meaning of the whole phrase, leaving it to require no more than that release pending appeal should not be granted if the question could be disposed of on a harmless error or a procedural default basis. The approach adopted by the court is simple to apply, relatively certain of result, and possesses the appeal of sweet reason. Its only fault is that it simply is not what Congress has enacted. Further, the approach of the court fails to carry out Congress's intent that there be "an affirmative finding that the chance for reversal is substantial."
62
While the court may be correct in suggesting that to read "likely to result in reversal * * * or a new trial" as I do renders the adjective "substantial" redundant, at least to the extent that questions likely to so result will also be substantial, I do not find this fatal to my interpretation. While it is generally true that interpretations leading to redundancies should be avoided, as the Supreme Court has also stated, the presence of "a clear legislative purpose" may compel such a reading. Singer v. United States, 323 U.S. 338, 344, 65 S.Ct. 282, 285, 89 L.Ed. 285 (1945). Here I believe the legislative history, scant though it is on this point, and "the most natural and immediately obvious sense" of the statutory language establish such a purpose.
63
I cannot agree with the statement in Miller that such a construction is capricious and would put the district court in the position of a "bookmaker" who "trade[s] on the probability of ultimate outcome." 753 F.2d at 23. Federal district judges currently make similar determinations in deciding whether a stay of judgment pending appeal should be granted under Fed.R.App.P. 8. We rely on the objective detachment and conscience of a district judge to grant a new trial when he is satisfied that trial error has occurred that will lead to reversal. At other times, however, issues may arise which the district judge may consider not to have such certainty, but which may still suggest the "likelihood of reversal or * * * a new trial." Congress made clear that the presumption is against release, and it is only the presence of this latter, limited class of issues that may permit the release of a defendant on bail pending appeal.
64
The court argues that such a position has not been urged by the United States and that we should not adopt "a posture more zealous than that of the prosecution." If there is zealousness present, it is that of Congress displayed in enacting the statute. The question before us is not that of our posture or that of the prosecution, but what Congress wrote and intended. We should not blithely add a phrase because the attorneys representing the United States urge a meaning of a statute at odds with the statutory language. While deference should be paid to the interpretation of a statute by the agency responsible for administering it, as the Supreme Court has stated, such constructions must be rejected when they "frustrate the policy that Congress sought to implement." Securities Industry Association v. Board of Governors of the Federal Reserve System, --- U.S. ----, 104 S.Ct. 2979, 2983, 82 L.Ed.2d 107 (1984) (quoting Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) ).
65
If one reads the statute straightforwardly, its immediate and apparent sense is simply that following conviction a person may be released on bail if, in addition to the other requirements of the statute, he has raised a substantial question of fact or law that is likely (i.e., more probable than not) to result in reversal or an order for a new trial. What legislative history there is supports this reading. The statute should be applied as written. The second phase of the analysis should consider the issue of the likelihood or probability of error--not just whether harmless, as opposed to prejudicial, error is present.3
66
Accordingly, I respectfully dissent from that portion of the court's opinion which, in essence, adds the phrase "if decided in defendant's favor" to the statute that Congress has enacted. If Congress had felt it desirable, it would have added the language. Congress wished to substantially restrict the number of persons released on bail pending appeal. We should not judicially legislate a meaning more permissive than that clearly apparent from the language of the statute.
67
FAGG, Circuit Judge, with whom BOWMAN, Circuit Judge, joins, concurring in part and dissenting in part.
68
I join in Judge Gibson's concurring and dissenting opinion, except I would also reject Risken's application for bail pending appeal.
*
On January 22, 1985, shortly after the oral argument, an order was filed setting out the Court's decision on each of these applications for bail pending appeal. This order is attached to this opinion as an appendix. This opinion states the standard for bail pending appeal that underlies our order in these several cases
1
Accord, United States v. Molt, 758 F.2d 1198 (7th Cir.1985). Molt also discusses, at 1199-1200, the meaning of the new statutory standard, but it comes to no definite conclusion on this question, because Molt's application for bail pending appeal would have been denied under any of the possible standards that had thus far been adopted by a court of appeals
2
In each case the ruling of this Court, granting or denying bail, represents the votes of at least five judges. But the same five judges do not support every ruling. The appended order of January 22, 1985, shows the votes of the individual judges on each case
1
Further, the Miller interpretation is consistent with earlier cases construing the phrase "substantial question" when that was the standard for release pending appeal under the Federal Rules of Criminal Procedure. See, e.g., D'Aquino v. United States, 180 F.2d 271, 272 (9th Cir.1950)
2
In common parlance, if something is "likely" it is "probable"--it has a better chance of happening than not. Webster's Third New International Dictionary defines "likely" as "of such a nature or so circumstanced as to make something probable" and as "having a better chance of existing or occurring than not: having the character of a probability." This meaning of "likely" is a common theme that runs through case law as the term appears in often quite different contexts. See, e.g., Munro Drydock, Inc. v. M/V Heron, 467 F.Supp. 513, 515 (D.Mass.1979) (in context of judicial sale of ship, "likely" was synonymous with "probable"); In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980) (for purposes of civil commitment, "likely" means "probable or reasonably to be expected"); Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362, 365 (1953) (in medical testimony, "likely" meant "in all probability; probably"). Both the common understanding of the term and its use in a legal context compel the conclusion that "likely" means "probable"--both terms referring to a greater than 50% chance that something will occur
3
While I do not intend to engage in a full-scale discussion of the constitutionality of the statute, I do observe that the statute addresses a situation where a conviction has been obtained and a defendant's innocence is no longer presumed. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951). While blanket denial of post-conviction bail might be improper, I do not believe that the constitution prevents Congress from enacting the restrictions imposed by the clear language of the statute
| {
"pile_set_name": "FreeLaw"
} |
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2016-068
JUNE TERM, 2016
In re A.M., Juvenile } APPEALED FROM:
}
} Superior Court, Windham Unit,
} Family Division
}
} DOCKET NO. 2-1-14 Wmjv
Trial Judge: Karen R. Carroll
In the above-entitled cause, the Clerk will enter:
Father appeals an order of the superior court, family division, terminating his parental
rights with respect to his daughter, A.M. We affirm.
The record reveals the following unchallenged facts. A.M. was born in May 2011.
Father had a brief relationship with A.M.’s mother in 2010 after spending a significant portion of
his life incarcerated. Father and mother were not together at the time of A.M.’s birth, but father
was aware in 2011 that mother was pregnant with his child. Father first met A.M. on a July 2013
visit to Vermont from New York City, where he was living. Following the visit, father drove
mother and A.M. back to New York for the weekend, but had little contact with mother or A.M.
thereafter.
In January 2014, the Department for Children and Families (DCF) filed a petition
alleging that A.M. was a child in need of care or supervision (CHINS) due to mother’s substance
abuse, unstable housing, and inability to provide for A.M.’s needs. The family court issued a
conditional custody order (CCO) placing A.M. with her maternal grandmother, who had been
actively involved in the child’s care up until that time. Following a contested merits hearing in
March 2014, A.M. was adjudicated CHINS. The court maintained custody with A.M.’s
grandmother under the CCO following an April 2014 hearing wherein a disposition report
indicated that the paternity of the child needed to be established because father’s whereabouts
were unknown.
In October 2014, father visited A.M. for the second time since her birth after
grandmother contacted him on Facebook. During the visit, father told grandmother that he was
aware of DCF’s involvement with A.M. and that he did not want custody of the child but wanted
to be part of her life. Over the next several months, he visited A.M. on three or four occasions at
the grandmother’s invitation, the last visit being in June 2015.
Meanwhile, DCF made contact with father in early 2015. In February 2015, the family
court granted DCF’s request to order father to undergo genetic testing to establish paternity.
Father’s paternity was established in May 2015 based on his agreement and the results of the
genetic testing. Father did not have in-person contact with A.M. after June 2015, despite DCF’s
efforts at scheduling visits. A DCF caseworker met twice with father, the second time in June
2015, to go over the case plan and to explain DCF’s expectations of what he needed to do
pursuant to the case plan. The case plan required father, among other things, to undergo
substance-abuse and mental-health evaluations and to have regular contact with A.M. Father
never underwent the substance-abuse and mental-health evaluations.
On May 1, 2015, two weeks before father’s paternity was established, A.M.’s attorney
filed a petition to terminate mother and father’s parental rights. Mother’s parental rights were
terminated on June 3, 2015. Following a separate hearing held over two days in October and
November 2015, the court terminated father’s parental rights. Father appeals the termination
order, arguing that: (1) the court’s conclusions that his progress had stagnated1 and that he would
not be able to resume parental rights within a reasonable period of time were premised on a
finding unsupported by the record; and (2) the court abused its discretion by not allowing him to
present evidence regarding grandmother’s substance abuse.
Father first argues that because the boilerplate case plan requirement that he undergo
substance-abuse and mental-health evaluations was not in response to any identified concerns
about him, his failure to undergo the evaluations cannot be a basis for the court’s conclusion that
he would be unable to resume parental duties within a reasonable period of time.2 He further
argues that, regarding the requirement that he have regular contact with A.M., there was no
evidence to support the court’s finding that his telephone contact with A.M. “dwindled to none”
or that he no longer had a relationship with A.M. Thus, according to father, these findings
cannot support the court’s conclusion that he will be unable to resume his parental duties within
a reasonable period of time.
Addressing the second argument first, we conclude that the evidence amply supports the
court’s findings that father had never developed a meaningful relationship with A.M. and that his
contact with the child diminished over time. While recognizing that father’s few visits with
A.M. had gone well and that he displayed affection for her, the court found that father had never
played a significant role in her life. As the court found, although father was aware that A.M. was
his daughter since her birth in 2011 and had concerns about mother’s drug use when he visited
the child in 2013, he made no attempt to establish his paternity in court or to maintain a
relationship with the child. Moreover, after he became aware in the fall of 2014 that DCF was
involved with A.M., he visited A.M. on only a few occasions despite DCF’s efforts to establish
more regular visitation. Although father’s telephone calls may not have “dwindled to none,” the
testimony from father supports the finding that he stopped making regular phone calls within two
1
The family court went through the two-step process of determining whether there were
changed circumstances and whether A.M.’s best interests warranted terminating father’s parental
rights; however, because the termination hearing was an initial disposition hearing, the court did
not need to make a threshold finding of changed circumstances. See In re C.P., 2012 VT 100,
¶ 30, 193 Vt. 29. Father does not claim error on this basis, and in fact the error was harmless
because the family court still had to conclude that the statutory best-interest factors warranted
termination of father’s parental rights. See 33 V.S.A. § 5114(a).
2
A DCF caseworker testified at the termination hearing that because DCF did not know
father when it prepared its case plan, it listed services it would expect of any unknown father.
Once father was identified, he acknowledged his criminal convictions, as well as pending
charges related to drug possession.
2
weeks after a telephone contact arrangement was initiated. The overwhelming evidence
demonstrates that father played virtually no role in A.M.’s life.
This Court has recognized “the unique concerns that arise in a case where the State seeks
to terminate the parental rights of a recently discovered father whose only link to a child is
biological.” In re C.L., 2005 VT 34, ¶ 15, 178 Vt. 558. In C.L., as in the instant case, the father
was aware of his paternity but made little effort to establish a parental relationship. Under such
circumstances, we rejected the “father’s claim that the trial court erred in terminating his parental
rights absent a specific finding of parental unfitness” because “the paramount concern was [the]
father’s ability to resume his parental rights within a reasonable period of time, measured from
the perspective of the child’s needs.” Id. ¶ 17. We affirmed termination of the father’s parental
rights in that case because the father had not established an emotional connection to the child, the
child’s foster parents were the only family the child had ever known, and any attempt to
transition custody to the father “would require an unreasonably lengthy period of time measured
from the child’s perspective, and would cause lasting emotional damage to the child from the
perceived loss of her family.” Id.
The situation here is similar. The evidence supports the court’s finding that father has
never made a sincere attempt to parent A.M., despite DCF’s good faith efforts to schedule time
for him to develop a relationship with her. The court further found that A.M. had a strong
attachment to her grandmother, who had taken care of her for most of her young life, and that
father had never played a constructive role in her life. We conclude that the record supports the
court’s determination that father would be unable to assume parental duties within a reasonable
period of time from the perspective of A.M.
As for father’s argument that his failure to undergo substance-abuse and mental-health
evaluations cannot be the basis for the court’s conclusion that he would be unable to resume his
parental duties within a reasonable period of time, that conclusion was not based, to any
significant degree, on father’s failure to undergo the evaluations. Rather, the court based the
conclusion on father’s inability to parent A.M. safely, and his failure to maintain contact with the
child and engage in a case plan aimed at helping him reach the point where he could parent her
in the future.
Father also argues that the court abused its discretion by not allowing him to present
evidence of the grandmother’s past drug use, which may have affected its decision. We find no
abuse of discretion. See Follo v. Florindo, 2009 VT 11, ¶ 19, 185 Vt. 390 (stating that “trial
court’s rulings on admission or exclusion of evidence are discretionary” and that its ruling will
not be disturbed unless its discretion was abused or entirely withheld, resulting in prejudice to
substantial rights). On May 22, 2015, following a status conference, the court ordered the State
to file its proposed witness and exhibit list by June 19, 2015 and all other parties, including
father, by July 24, 2015. DCF and the juvenile filed their witness and exhibit list on June 1,
2015, and on July 27, 2015 father disclosed four witnesses and no exhibits. On October 29,
2015, more than three months after the discovery deadline and three weeks after the first day of
the termination hearing, father filed an updated witness and exhibit list that included
grandmother’s criminal records from 1993 to 2007. The State objected to the amended list, and
father responded, stating that the reason for the late disclosure was that he initially supported the
grandmother retaining custody of A.M. but changed his mind after the first day of the
termination hearing. The court denied the motion, noting that father’s amended list was offered
more than three months after the discovery deadline, even though father had been on notice from
the beginning that DCF was recommending transfer of custody to the grandmother. The court
3
further noted that at the close of the first day of the termination hearing, father’s counsel
represented to the court that only father was left to call as a witness. The court later denied
father’s motion for reconsideration, stating that father always knew what was being proposed and
had been given a full and fair opportunity to demonstrate his ability to parent A.M.
On appeal, father claims that evidence of the grandmother’s criminal history is essential
to the family court’s consideration of her suitability as a caretaker for A.M. He contends that the
family court abused its discretion by not allowing the evidence, given the nature of the interests
at stake. Father has made no proffer on appeal to demonstrate how the requested exhibits were
likely to impact the court’s termination decision, and it is unclear how records from no later than
2007 would be significant in this case. The court made numerous findings, none of which father
has challenged on appeal, regarding the grandmother’s suitability as a caretaker and A.M.’s
progress in her care. The court found that the grandmother was present at A.M.’s birth and
frequently took care of her prior to DCF involvement. The court further found that the
grandmother had a suitable residence for her and A.M., that she focused all of her time and
energy on A.M. because she did not work outside the home, and that she takes care of A.M.’s
medical, educational, and other needs. Moreover, the court found that A.M. had a “strong
attachment” to her grandmother, who is the “most important person” in her life, and that the
relationship was “positive and ongoing.” Finally, the court found that “[a] disruption of this
relationship would likely be very detrimental to [A.M.].” Given the apparent limited relevance
of the proffered exhibits, we find no basis to overturn the family court’s discretionary decision
not to admit them.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
4
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DeFelice v Seakco Constr. Co., LLC (2017 NY Slip Op 03481)
DeFelice v Seakco Constr. Co., LLC
2017 NY Slip Op 03481
Decided on May 3, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 3, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
2015-04890
(Index No. 50715/12)
[*1]Richard DeFelice, Jr., plaintiff-respondent,
vSeakco Construction Company, LLC, et al., defendants-respondents, Michael O'Halloran, et al., appellants (and third-party actions).
Cuomo LLC, New York, NY (Matthew A. Cuomo of counsel), for appellants.
Henderson & Brennan, White Plains, NY (Lauren J. Demase and Brian Henderson of counsel), for plaintiff-respondent.
Craig P. Curcio, Middletown, NY (Tony Semidey of counsel), for defendants-respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Michael O'Halloran and Judith McHale appeal from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 3, 2015, as denied those branches of their motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiff, an electrician, allegedly slipped on ice and fell on the driveway as he approached the front steps of a house owned by the defendants Michael O'Halloran and Judith McHale (hereinafter together the homeowners). At the time of the accident, the house was undergoing extensive renovations and the homeowners were living out of state. The defendant Seakco New York, LLC (hereinafter Seakco), was the general contractor on the renovation project. The plaintiff commenced this action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) against, among others, the homeowners and Seakco. The homeowners moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that they did not exercise any supervision or control over the plaintiff's work and that they lacked notice of the allegedly icy condition that caused the accident. The Supreme Court granted that branch of the motion which was to dismiss the cause of action alleging a violation of Labor Law § 241(6), but denied those branches of the motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action. The homeowners appeal.
Labor Law § 200 is a codification of the common-law duty to provide workers with a reasonably safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877; Lombardi v Stout, 80 NY2d 290, 294). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61; see Chowdhury v Rodriguez, 57 AD3d 121, 128). Where a worker's [*2]injury arises out of the condition of the premises, liability may not be imposed unless the owner "either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d at 61; see Baumann v Town of Islip, 120 AD3d 603, 605).
The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident (see Carlson v Lyon, 289 AD2d 835, 836; Fehrenbacher v Berl, 240 AD2d 466, 467). In addition, contrary to the homeowners' contention, the plaintiff's alleged injuries stem from a dangerous condition on the premises (see Baumann v Town of Islip, 120 AD3d at 604-605; Mikelatos v Theofilaktidis, 105 AD3d 822, 823; Edick v General Elec. Co., 98 AD3d 1217, 1219; Sullivan v RGS Energy Group, Inc., 78 AD3d 1503; see also Slikas v Cyclone Realty, LLC, 78 AD3d 144, 148), and not from the manner in which work was performed (cf. Cody v State of New York, 82 AD3d 925, 928). Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway (see Denardo v Ziatyk, 95 AD3d 929, 930; Medina v La Fiura Dev. Corp., 69 AD3d 686). The evidence submitted in support of the homeowners' motion, which included transcripts of the plaintiff's and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident (see Giantomaso v T. Weiss Realty Corp., 142 AD3d 950, 951; Denardo v Ziatyk, 95 AD3d at 930; Baines v G & D Ventures, Inc., 64 AD3d 528, 529). Since the homeowners failed to meet their prima facie burden, the court properly denied those branches of their motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against them, without regard to the papers submitted in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
RIVERA, J.P., BALKIN, BARROS and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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11 N.Y.3d 924 (2009)
PEOPLE
v.
CORREA.
Court of Appeals of the State of New York.
January 6, 2009.
Application in criminal cases for leave to appeal denied. (Jones, J.).
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 20, 2017
Plaintiff-Appellee,
v No. 330752
Oakland Circuit Court
AKASH L. SHAH, LC No. 2015-254680-FH
Defendant-Appellant.
Before: SAWYER, P.J., and SAAD and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his conviction for operating while visibly impaired
(OWVI), MCL 257.625(3). We affirm defendant’s conviction, but we remand for the
administrative correction of the judgment of sentence.
On July 5, 2013, defendant worked at his job from 9 a.m. to 6 p.m., then went home and
entertained out-of-state family members until he went to bed around midnight. Defendant woke
up at 5 a.m. the next day and worked from 7 a.m. to 4 p.m. That evening, after defendant got
home from work, he hosted a dinner for his out-of-state family. Around 8 p.m., while cleaning
up from dinner, defendant’s friend invited him to a bar to play darts. Defendant met his friend at
around 9 p.m. Between 9 p.m. and 11 p.m., defendant consumed three to four 16-ounce light
beers. Around 11 p.m., defendant switched to drinking water. Defendant eventually left the bar
around 1 a.m. On his way home, defendant remembered that his wife had mentioned that she
was still hungry because she was not able to eat much at dinner. Defendant pulled over and
texted his wife to see if she was still hungry. While waiting for his wife to respond, defendant
fell asleep.
Officer Robert Manar, a police officer for the city of Novi, spotted defendant’s vehicle on
the side of the road, angled so that its front end was towards the middle of the road. The
vehicle’s lights were on and its engine was running. Officer Manar approached the vehicle and
saw that the driver’s side window was open. In the vehicle, Officer Manar saw that defendant
was asleep in the driver’s seat and the vehicle was in park. Officer Manar first attempted to
wake defendant by speaking to him. When that did not work, Officer Manar reached in and
shook defendant awake. Officer Manar asked defendant to step out of the vehicle and give the
officer his identification. When defendant got out of the vehicle, Officer Manar smelled the odor
of intoxicants on defendant’s breath. Defendant seemed confused about where his wallet was,
-1-
and Officer Manar told him that it was on his person. Defendant then took his wallet out and
began fumbling with his identification until Officer Manar told defendant that his ID was
showing. When Officer Manar asked defendant if he had been drinking, defendant responded by
saying that “he had too much of everything.”
Officer Manar then administered a field sobriety test. Officer Manar could not remember
whether defendant passed his Horizontal Gaze Nystagmus (HGN) test. After the HGN, Officer
Manar had defendant perform a walk and turn. When defendant began the walk and turn, he
stumbled to the point that the officer believed that defendant was going to fall over. Officer
Manar also noticed that defendant was constantly stepping off the line and that he appeared
unable to keep a straight line. The officer also had defendant perform a one-leg stand.
Defendant failed to perform the test and explained to the officer that he did not have the balance
for it. Officer Manar next asked defendant to recite the ABC’s, starting with the letter “C” and
ending at “L.” Defendant was unable to finish on his first attempt but completed the sequence on
his second attempt. Officer Manar next asked defendant to count backwards starting at 78 and
ending at 67. Defendant continued counting past 67, and the officer eventually stopped
defendant when he reached 62. At trial, defendant explained that he was tired when the officer
roused him from his sleep, that he had bad balance due to an injury on his foot, and that he was
confused regarding the officer’s instructions for the ABCs and counting tests.
Based on defendant’s admission that he was drinking, the position of his car, his
performance on the field sobriety tests, and his general confusion, Officer Manar believed that
defendant was likely intoxicated. Officer Manar placed defendant under arrest and took him
back to the police station. Once there, Officer Manar procured a warrant for defendant’s blood.
The results of defendant’s blood samples revealed a blood alcohol level of 0.23 grams per 100
milliliters of blood. An expert testified on behalf of defendant that the amount of alcohol
defendant consumed that night could not have resulted in this high of an alcohol content. The
expert explained that the sample was likely tainted by bacteria and then fermented, causing the
level to appear higher than defendant’s actual level at the time the blood was drawn. The
prosecution’s expert disagreed with this suggestion.
Before trial, defendant was charged with operating while intoxicated (OWI), MCL
257.625(1). The prosecution did not submit jury instructions before trial, and the defense
counsel only submitted instructions for OWI. At trial, after both parties presented proofs but
before closing arguments, defense counsel objected to the prosecution’s proposal to include the
elements of OWVI. The trial court overruled defendant’s objections and gave instructions for
both OWI and OWVI. The jury found defendant guilty of only OWVI. Defendant then filed a
motion for a directed verdict of acquittal after jury trial, judgment notwithstanding the verdict, or
new trial, which the trial court denied.
On appeal, defendant argues that the trial court erred by instructing the jurors regarding
OWVI because it is not a necessarily included lesser offense of OWI. This Court “review[s] de
novo a trial court’s ruling on a necessarily included lesser offense instruction.” People v Walls,
265 Mich App 642, 644; 697 NW2d 535 (2005).
-2-
Defendant was charged with OWI under MCL 257.625(1).1 MCL 257.625(3), the OWVI
statute, states in pertinent part, “If a person is charged with violating subsection (1), a finding of
guilty under this subsection may be rendered.” Generally, MCL 768.32(1)2 controls the
determination of whether a particular crime is a necessarily included lesser offense. People v
Cornell, 466 Mich 335, 353-354; 646 NW2d 127 (2002) (stating that “MCL 768.32 only allows
a jury to consider necessarily included lesser offenses”). However, in People v Martin, 271
Mich App 280, 294-295; 721 NW2d 815 (2006), this Court stated that “where the statutory
language of a particular offense indicates a contrary intent, that specific intent will control over
the general rule stated under MCL 768.32(1).” Thus, as the text of MCL 257.625(3) makes
clear, the Legislature intended for OWVI to be a necessarily included lesser offense of OWI.
Moreover, our Courts have recognized that OWVI meets the test for a necessarily
included lesser offense. In People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975), our
Supreme Court stated, “The distinction between [MCL 257.625(1)] and the lesser included
offense of [MCL 257.625(3)] is the degree of intoxication which the people must prove.” More
recently, in Oxendine v Secretary of State, 237 Mich App 346, 354-355; 602 NW2d 847 (1999),
this Court reiterated that “[OWVI] and the ‘under the influence’ version of [OWI] are in a
hierarchical relationship, because any person who drives while so affected by consumption of
alcohol or a controlled substance as to be substantially and materially affected and thus commit
[OWI] would plainly always also be so affected that the person’s driving ability would be
1
MCL 257.625(1) states as follows:
A person, whether licensed or not, shall not operate a vehicle upon a highway or
other place open to the general public or generally accessible to motor vehicles, including
an area designated for the parking of vehicles, within this state if the person is operating
while intoxicated. As used in this section, “operating while intoxicated” means any of
the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance,
or other intoxicating substance or a combination of alcoholic liquor, a controlled
substance, or other intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood,
per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person
has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath,
or per 67 milliliters of urine
2
MCL 768.32(1) states as follows:
Except as provided in subsection (2), upon an indictment for an offense, consisting of
different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may
find the accused not guilty of the offense in the degree charged in the indictment and may find
the accused person guilty of a degree of that offense inferior to that charged in the indictment, or
of an attempt to commit that offense.
-3-
‘visibly impaired’ and thus constitute [OWVI].” Accordingly, the trial court did not err by
holding that OWVI was a necessarily included lesser offense of OWI.
Defendant also argues that the trial court erred by instructing the jury regarding OWVI
because he was not given notice of the charge. This claim lacks merit. “[A] defendant is on
notice when charged that he or she may be found guilty of a necessarily included lesser offense
of the offense charged.” Martin, 271 Mich App at 288. “Hence, it is not error to instruct the jury
on such necessarily included lesser offenses.” Id. “In general, the duty of the trial court to
instruct with regard to lesser included offenses is determined by the evidence.” People v Torres,
222 Mich App 411, 416; 564 NW2d 149 (1997). “When an offense is necessarily included, the
evidence will always support the lesser offense if it supports the greater.” Id. Thus, if evidence
supports instruction for the greater offense, the trial court must instruct the jury on a necessarily
lesser included offense at the request of either party. Id.
Here, as previously discussed, OWVI is a necessarily included lesser offense of OWI.
See Lambert, 395 Mich at 305; see also Oxendine, 237 Mich App 354-355. Defendant does not
contest that the instructions for OWI were proper. See Torres, 222 Mich App at 416. Thus,
because the prosecution requested the instruction for OWVI, the trial court did not err by giving
the instruction. See Martin, 271 Mich App at 288.
Defendant also argues that there was insufficient evidence to support his conviction for
OWVI. “Challenges to the sufficiency of the evidence are reviewed de novo.” People v Cline,
276 Mich App 634, 642; 741 NW2d 563 (2007). “To determine whether the prosecutor has
presented sufficient evidence to sustain a conviction, we review the evidence in the light most
favorable to the prosecutor and determine whether a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415
(2013) (citation and quotation marks omitted).
This “review is deferential: a reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury verdict.” People v Gonzalez, 468
Mich 636, 640-641; 664 NW2d 159 (2003) (citation and quotation marks omitted). “It is for the
trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the
evidence and to determine the weight to be accorded those inferences.” People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002). “The scope of review is the same whether the evidence
is direct or circumstantial. Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.” People v Nowack, 462
Mich 392, 400; 614 NW2d 78 (2000) (citation and quotation marks omitted). “Even in a case
relying on circumstantial evidence, the prosecution need not negate every reasonable theory
consistent with the defendant’s innocence, but need merely introduce evidence sufficient to
convince a reasonable jury in the face of whatever contradictory evidence the defendant may
provide.” Hardiman, 466 Mich at 423-424 (citation and quotation marks omitted).
To convict a defendant of OWVI, the prosecution must prove that, “due to the
consumption of alcoholic liquor . . . or other intoxicating substance, the person’s ability to
operate the vehicle is visibly impaired.” MCL 257.625(3). In other words, the prosecution must
prove that, due to intoxication, the defendant “drove with less ability than would an ordinary,
careful and prudent driver.” Lambert, 395 Mich at 305.
-4-
Here, Officer Manar found defendant’s vehicle parked on the side of the road, the car was
running, and defendant was asleep. Although, as defendant correctly points out, no one saw
defendant drive his car, this is not a requirement under MCL 257.625(3). MCL 257.625(3) only
requires that “the person’s ability to operate the vehicle is visibly impaired,” not that a person
witness defendant’s ability be visibly impaired. See People v Stephen, 262 Mich App 213, 219;
685 NW2d 309 (2004) (holding that an officer does not need to actually witness a person driving
a vehicle to arrest the person for OWI). Officer Manar testified that he believed that defendant
was intoxicated based on defendant’s performance on his field sobriety tests, and defendant
testified that he drove. Moreover, defendant’s blood tested positive for the presence of alcohol.
See People v Miller, 357 Mich 400, 407; 98 NW2d 524 (1959) (blood alcohol concentration “is
properly admissible as bearing upon the issue of intoxication”). Based on this circumstantial
evidence, the jury could have concluded that defendant operated his vehicle with less ability than
an ordinary careful driver. Nowack, 462 Mich at 400.
Further, defendant testified that he drank three or four beers at a bar before driving.
Based on this evidence, if the jury concluded that defendant’s ability to drive was weakened,
evidence supported the fact that this weakened ability was due to defendant’s consumption of
alcohol. Although defendant presented evidence at trial that his ability was impaired due to
sleepiness rather than alcohol, “the prosecution need not negate every reasonable theory
consistent with the defendant’s innocence.” Hardiman, 466 Mich at 423-424 (citation and
quotation marks omitted). A jury is “free to believe or disbelieve, in whole or in part, any of the
evidence presented,” People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999), and in a light
most favorable to the prosecution, the jury could have reasonably inferred that defendant was
operating his vehicle in a manner less than that of an “ordinary, careful and prudent driver,”
Lambert, 395 Mich at 305.
For the foregoing reasons, there were no errors in the three issues defendant has raised on
appeal. Therefore, the trial court did not abuse its discretion by refusing to grant defendant’s
motion for a new trial. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).
In reviewing the record to analyze the issues raised on appeal, we came across an error in
defendant’s judgment of sentence that, while not meriting substantive relief, nevertheless
requires us to remand this case to the trial court to correct the administrative error. Specifically,
defendant’s judgment of sentence reflects a conviction under MCL 257.625(6)(d), which is not
the relevant section for OWVI. Accordingly, we remand this case to the trial court for the
administrative task of correcting defendant’s judgment of sentence. See People v Herndon, 246
Mich App 371, 392-393; 633 NW2d 376 (2001).
Remanded for the task of correcting the error in the judgment of sentence. Otherwise,
affirmed. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Michael J. Riordan
-5-
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833 F.2d 1007
Columbusv.United Pacific Ins. Co.*
NO. 87-4351
United States Court of Appeals,Fifth Circuit.
OCT 27, 1987
Appeal From: S.D.Miss., 641 F.Supp. 707
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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10-3680-ag BIA
Lin v. Holder Abrams, IJ
A094 924 136
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 BI YUN LIN,
14 Petitioner,
15
16 v. 10-3680-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22 FOR PETITIONER: Farah Loftus, Century City,
23 California
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Lyle D. Jentzer, Senior
27 Litigation Counsel; John M. McAdams,
28 Jr., Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Bi Yun Lin, a native and citizen of China, seeks review
6 of an August 27, 2010, decision of the BIA affirming the
7 October 3, 2008, decision of Immigration Judge (“IJ”) Steven
8 R. Abrams, which denied her application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Bi Yun Lin, No. A094 924 136
11 (B.I.A. Aug. 27, 2010), aff’g No. A094 924 136 (Immig. Ct.
12 N.Y. City Oct. 3, 2008). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 As an initial matter, because Lin failed to challenge
22 the IJ’s denial of withholding of removal and CAT relief in
23 her appeal to the BIA, we lack jurisdiction to consider her
24 challenge to the denial of that relief. 8 U.S.C.
2
1 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
2 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.
3 2003)). We similarly decline to consider the issue of Lin’s
4 fear of persecution in the form of forced abortion or
5 sterilization as she did not raise that issue before the
6 BIA. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
7 (holding that “generalized protestations” do not suffice to
8 alert the court to the “discrete issue” necessary to
9 properly exhaust a claim at the agency level).
10 Accordingly, the only issue before us is whether the
11 BIA erred in denying Lin’s application for asylum premised
12 upon her past persecution and fear of future persecution
13 based on her religion .
14 For asylum applications governed by the amendments made
15 to the Immigration and Nationality Act by the REAL ID Act of
16 2005, the BIA considers the totality of the circumstances
17 and may base a credibility finding on an asylum applicant’s
18 “demeanor, candor, or responsiveness,” the plausibility of
19 her account, and inconsistencies in her statements, without
20 regard to whether they go “to the heart of the applicant’s
21 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
22 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We will “defer
23 therefore to an IJ’s credibility determination unless, from
24 the totality of the circumstances, it is plain that no
3
1 reasonable fact-finder could make” such a ruling. Xiu Xia
2 Lin, 534 F.3d at 167.
3 In this case, the IJ reasonably based his adverse
4 credibility determination on Lin’s testimony, her husband’s
5 testimony, and two letters purportedly from a relative of
6 hers in China and her pastor in the United States. Liu’s
7 testimony was internally inconsistent and implausible.
8 First, she testified that her father’s second cousin had not
9 been present at a church meeting that was broken up by
10 police officers, but she submitted a letter in which that
11 individual stated he had been present at that meeting. When
12 confronted with the inconsistency, Lin claimed she had
13 forgotten this detail. Second, her testimony about her most
14 recent attendance at church prior to the hearing was
15 inconsistent with her husband’s testimony when he was asked
16 about the same event. Lin’s counsel was given the
17 opportunity to clarify this discrepancy but failed to do so.
18 Third, she testified that she was stopped by a police
19 officer who did not know her name, but that an officer who
20 telephoned her home one month later asked for her by name.
21 She failed to explain how the police learned her identity.
22 Fourth, Lin presented a letter from the pastor of her church
23 in Brooklyn that indicated that she had been attending the
24 church since 2002. The agency reasonably found this
4
1 evidence implausible because Lin claimed to have arrived in
2 the United States in 2007.
3 The IJ properly relied on the cumulative effect of
4 these inconsistencies and implausibilities in finding Lin
5 not credible. See Liang Chen v. U.S. Att’y Gen., 454 F.3d
6 103, 106-07 (2d Cir. 2006) (“[T]he IJ may rely upon the
7 cumulative impact of . . . inconsistencies, and may conduct
8 an overall evaluation of testimony in light of its
9 rationality or internal consistency and the manner in which
10 it hangs together with other evidence”) (citations and
11 quotation marks omitted). Moreover, the IJ provided Lin
12 with multiple opportunities to explain these
13 inconsistencies, but she failed to do so. See Ming Shi Xue
14 v. BIA, 439 F.3d 111, 125 (2d Cir. 2006) (the agency may not
15 rest an adverse credibility finding on a non-dramatic
16 inconsistency without first putting the applicant on notice
17 and giving the applicant a chance to reconcile the
18 testimony). The totality of the circumstances supports the
19 BIA’s adverse credibility determination, and we defer to
20 that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
21 Lin, 534 F.3d at 167.
22 The BIA’s adverse credibility finding also undermines
23 Lin’s claim of future persecution. Because she has not
24 provided any basis--other than her testimony regarding past
5
1 persecution, which the agency reasonably deemed incredible--
2 to show that the Chinese government would persecute her, she
3 failed to demonstrate an independent basis for a well-
4 founded fear of persecution. Cf. Paul v. Gonzales, 444 F.3d
5 148, 154 (2d Cir. 2006) (“[A]n applicant may prevail on a
6 theory of future persecution despite an IJ’s adverse
7 credibility ruling as to past persecution, so long as the
8 factual predicate of the applicant’s claim of future
9 persecution is independent of the testimony that the IJ
10 found not to be credible.”) (emphasis omitted).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
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505 P.2d 11 (1973)
James H. BRAYMAN, Petitioner,
v.
The NATIONAL STATE BANK OF BOULDER, Colorado, as Executor of the Estate of Rex W. Firkins, Deceased, and Hope Firkins, Respondents.
No. C-245.
Supreme Court of Colorado, En Banc.
January 15, 1973.
*12 Weller, Friedrich, Hickisch & Hazlitt, William H. Hazlitt, Denver, for petitioner.
Daniel S. Hoffman, Gerald P. McDermott, Denver, for respondents.
DAY, Justice.
We granted certiorari to the Colorado Court of Appeals to review a decision reversing the trial court judgment. (National State Bank of Boulder, Colorado v. Brayman, 30 Colo.App. 554, 497 P.2d 710.)
This is a tort case involving two actions which arose out of a one-car automobile accident. The original action was brought by Rex Firkins through his wife, Hope Firkins, as next friend (Rex Firkins never having regained consciousness after the accident). Mrs. Firkins also was plaintiff in her own name, seeking damages for loss of consortium. Upon Rex Firkins' death, a motion was made to substitute the National State Bank of Boulder, Colorado, executor of the estate of Rex Firkins, as plaintiff under the survival statute. Mrs. Hope Firkins sought to join and amend her claim under the wrongful death statute. The defendant was James H. Brayman, a fishing companion of Firkins. The allegation seeking to hold Brayman liable was that he drove the Firkins car at the time of the accident.
At a location near Leadville, Colorado, known as Malta Curve, on Highway 24, the Firkins car was involved in a one-car accident. The totally demolished and empty vehicle was found in a field off the highway. Mr. Firkins was found lying on the ground some 72 feet from the vehicle. No other person was found at the scene. Also found at the scene were Brayman's wristwatch and a pool of bloodnot identified. Mr. Brayman was not at the scene at any time during the investigation. There was no competent evidence that Brayman himself had been at the scene or that he had lost any blood.
A highway patrolman testified to the above observations in addition to the measurements of the accident. Based upon his experience in accident investigation, he was allowed to state his opinion as to how the accident occurred. He had no knowledge as to the identity of the driver. Also evident from the patrolman's testimony were the differences in his accident reports as to how the accident occurred.
A subsequent expert witness, Professor Richard Crawford, an "accident reconstructionist," testified in detail as to how, in his opinion, the car left the road, rolled, turned and bounded, describing each position and angle. Although the court had stated before that Crawford was not competent to express such opinions, he was permitted to express an opinion that Brayman was in the car and in the driver's seat. After cross-examination, the courtcorrectly we holdstruck Crawford's testimony on the ground that it was based on hearsay.
Upon these facts the trial court dismissed the action at the end of the plaintiffs' case in chief, holding that there was no evidence as to who was driving the vehicle and no evidence of defendant's negligence.
The Court of Appeals on certiorari ruled that the trial court erred in striking Professor Crawford's testimony, erred in ruling the plaintiffs' had not presented a prima facie case, and erred in ruling that C.R.S.1963, 154-1-1, was applicable to the case.
*13 Petitioner argues that the Court of Appeals erred in applying the law and in making findings of fact that plaintiffs had established a prima facie case of liability. We agree and reverse the judgment of the Court of Appeals.
Both parties agree that there is a rebuttable presumption in law that the owner of a motor vehicle being present in the vehiclebut being outside when foundwas driving his own car. Cases in Colorado support this presumption. Moore v. Skiles, 130 Colo. 191, 274 P.2d 311; Dwinelle v. Union Pacific Railroad Co., 104 Colo. 545, 92 P.2d 741; American Insurance Co. v. Naylor, 101 Colo. 34, 70 P.2d 349. Other jurisdictions in accord are McElroy v. Force, 75 Ill.App.2d 441, 220 N.E.2d 761; Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804; Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906; Sprader v. Mueller, 265 Minn. Ill, 121 N.W.2d 176; Rodney v. Staman, 371 Pa. 1, 89 A.2d 313; Campbell v. Fry, Mo.App., 439 S.W.2d 545; 8 Am.Jur.2d Automobiles § 910; Annot., 32 A.L.R.2d 988 (1953). In Moore v. Skiles, supra, there is an even stronger presumptionthat the owner being present (though not necessarily driving) is presumed to be in control of the operation of the vehicle. That the latter rule also prevails in other jurisdictions is amplified in Annot., 65 A.L.R.2d 312.
Involved in this case is the question of the quantum and type of evidence required to meet the presumption thereby raising a fact issue to be submitted to the jury for its determination. Whether the standard be "direct," "substantial," "clear and convincing" or even "any" evidence, we can summarily dismiss respondents' assertions that such level has been met. As we review the record and exhibits, we see only incompetent opinion, speculation, variable accident reports, unidentified blood, and a watch allegedly belonging to the defendant. Perhaps symbolic of the entire case is the speculative conjectural opinion by an "accident reconstructionist." This quantum and type of evidence certainly does not rebut the two legal presumptions which form the law of the case.
To hold that such evidence overcomes the presumption and creates a prima facie case is to give the presumption no legal effect or weight at all. It was error for the Court of Appeals to give little credence to the presumption and to find on this record evidence to overcome it. The holding of Sprader v. Mueller, supra, sums up our view and is especially relevant:
"We adopt the rule supported by the great weight of authority that where the owner is an occupant of his own vehicle at the time of an accident, it is prima facie evidence that he was the driver. Such circumstances create a rebuttable presumption that the owner was in control, and he has the burden of overcoming that presumption. In the absence of direct evidence because of death or amnesia, and where, as here, the circumstantial evidence is wholly inconclusive, it is the duty of the court to hold that the owner was the driver when the accident occurred."
Concerning the second issue regarding the application of C.R.S.1963, 154-1-1 (the so-called Dead Man's Statute) to a combined suit by deceased's executor and his widow under C.R.S.1963, 41-1-1, our disposition makes it unnecessary to consider the problem.
Judgment reversed and cause remanded to the Court of Appeals with directions to dismiss the action.
GROVES and ERICKSON, JJ., not participating.
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238 F.2d 605
UNITED STATES of America, Appellee,v.Jimmie RUSSELL, Appellant.
No. 62.
Docket 24122.
United States Court of Appeals Second Circuit.
Argued October 4, 1956.
Decided October 25, 1956.
Henry K. Chapman, New York City, for appellant.
Paul W. Williams, U. S. Atty., for Southern Dist. of New York, New York City (Robert Kirkland, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
PER CURIAM.
1
Appellant petitioned, under 28 U.S.C. § 2255, for the vacation of a judgment of conviction entered in 1931 on his plea of guilty, on the ground that he did not have the assistance of counsel pursuant to the Sixth Amendment. After a hearing on the petition, Judge Weinfeld, who saw and heard the appellant testify, found as a fact that, in 1931, appellant had intelligently waived his right to counsel. D. C., 146 F.Supp. 102, Judge Weinfeld's opinion specifically states that this conclusion was based on his personal impression of appellant's demeanor on the witness stand in addition to the fact of appellant's numerous prior court experiences.
2
We affirm on Judge Weinfeld's opinion.
3
Affirmed.
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723 S.E.2d 486 (2012)
314 Ga. App. 170
MIMS
v.
The STATE.
No. A11A1991.
Court of Appeals of Georgia.
February 16, 2012.
*487 Kevin C. Armstrong, for appellant.
Gregory W. Edwards, Dist. Atty., Matthew Breedon, Asst. Dist. Atty., for appellee.
DILLARD, Judge.
Following a jury trial, Christopher Mims was convicted of one count of aggravated battery and one count of aggravated assault. Mims appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in admitting the victim's prior consistent statement over his hearsay objection and in admitting a police officer's allegedly irrelevant testimony regarding the scope of the officer's investigation. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury's guilty verdict,[1] the evidence shows that late in the evening of May 6, 2008, Mims and his girlfriend, M.C., were in the parking lot of a local package store when they became embroiled in a heated argument over money. As the argument escalated, M.C. turned her back on Mims and began to walk away from him. But as she did, Mims struck her in the back of the head with a stick, which knocked her to the ground. With M.C. now lying face down on the ground, Mims continued striking her on the back of her head. And when M.C. attempted to turn over onto her back so that she could use her hands to defend herself, Mims began striking her in the face with his fists, breaking her jaw and knocking out several of her teeth in the process.
Shortly after Mims began his assault on M.C, a motorist who had driven by the scene flagged down a police officerwho was on patrol several blocks awayand informed him that she had just witnessed a male beating a female in the package store parking lot. *488 When the officer arrived at the scene a few minutes later, Mims had already fled, but the officer found M.C. lying on the ground nearly unconscious and bleeding badly from the multiple blows to her face and head. As the officer rendered aid, a second officer arrived on the scene, and M.C. told both of them that Mims was the person who had assaulted her. Consequently, the second officer went to Mims's residence, and after finding Mims with what appeared to be blood on his shirt, pants, and shoes, arrested him for the assault on M.C.
Thereafter, Mims was indicted on one count of aggravated battery[2] and one count of aggravated assault.[3] During Mims's trial, M.C. testified about the assault, and the two responding police officers testified regarding their investigation of the matter. Additionally, the State introduced and played an audio recording of a telephone call that Mims made to M.C. while Mims was incarcerated in the local detention center[4] and M.C. was still in the hospital being treated for her injuries. In that phone call, Mims complained to M.C. about being arrested on aggravated-assault charges, and he angrily suggested that M.C. should have blamed the assault on someone else.
At the conclusion of Mims's trial, the jury found him guilty on both counts.[5] Subsequently, Mims filed a motion for new trial. And after both Mims and the State agreed that an evidentiary hearing on the matter was unnecessary, the trial court denied Mims's motion for new trial. This appeal follows.
At the outset, we note that "[a]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse."[6] With this guiding principle in mind, we will now address Mims's claims of error.
Mims contends that the trial court erred in admitting a police officer's testimony regarding M.C.'s prior consistent statement identifying Mims as her attacker despite Mims's hearsay objection. We disagree.
It is well established that a witness's prior consistent statement is admissible only where: "(1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination." [7] And a witness's veracity is placed in issue, so as to permit the introduction of a prior consistent statement, "if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination." [8] But even then, "to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive." [9]
In the case sub judice, M.C. testified on direct examination that Mims attacked her on the night in question. Nevertheless, during Mims's cross-examination of M.C, defense counsel was able to elicit testimony from M.C. in which she admitted to consuming a quart of beer and a half-pint of vodka just prior to the assault, that she never saw Mims carrying a stick, and that she did not see the first blow to the back of her head because it came from behind her. And although M.C. maintained that Mims was the *489 person who attacked her, defense counsel attempted to elicit a concession from M.C. that it was possible someone else could have been responsible for her injuries.
Shortly thereafter, during the direct examination of the police officer who first responded to the incident, the State's prosecutor asked the officer what M.C. told him when he arrived on the scene. But before the officer could respond, Mims's counsel objected that the officer's answer would constitute hearsay. In response, the State's prosecutor asserted that M.C.'s veracity as to the identity of her attacker had been challenged earlier during cross-examination, and argued that, as a result, M.C.'s prior consistent statement was admissible. The trial court agreed, and the officer then confirmed that upon his arrival at the scene, M.C. immediately identified Mims as her attacker.
Mims now argues that the trial court erred in admitting M.C.'s prior consistent statement because his trial counsel's cross-examination of M.C. did not place her veracity at issue and, alternatively, even if it did, her statement did not predate any recent fabrication or improper motive. We disagree.
Although Mims's trial counsel did not directly accuse M.C. of lying, her veracity was certainly challenged by questions eliciting the fact that she had been drinking heavily just prior to the assault and that she did not actually see the weapon or the first blow. Thus, at the very least, Mims's cross-examination of M.C. strongly implied that her direct testimony constituted a recent fabrication.[10] Additionally, it is undisputed that M.C.'s statement to the responding officer predated her allegedly fabricated trial testimony.[11] And under these circumstances, we conclude that the trial court did not abuse its discretion in allowing the State to introduce M.C.'s prior consistent statement.[12]
Moreover, even assuming arguendo that M.C.'s identification of Mims as her assailant to the responding officer was not properly admitted as a prior consistent statement, her statement was made within minutes of the violent assault and while she was still suffering its effects. Her statement, therefore, was also admissible as part of the res gestae of the event.[13] Thus, the trial court would not have abused its discretion in allowing M.C.'s statement into evidence on this alternative ground.[14]
2. Mims also contends that the trial court erred in allowing one of the investigating police officers to testify as to why the alleged blood stains on Mims's clothing and shoes were not forensically analyzed, arguing that such testimony was irrelevant. This contention is likewise without merit.
First, we note that unless the potential for prejudice substantially outweighs probative value, "Georgia law favors the admission of relevant evidence, no matter how slight its probative value." [15] And evidence is relevant "if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or *490 throw light upon a material issue is relevant."[16] Indeed, even where the relevancy or competency is doubtful, "the evidence should be admitted, and its weight left to the determination of the jury." [17]
And here, during the State's case, one of the investigating officers testified that the clothing and shoes that Mims was wearing on the night he was arrested appeared to have blood stains on them. On cross-examination, Mims's trial counsel asked the officer if the stains had ever been forensically analyzed. The officer responded that no such analysis was conducted, and therefore, he could not testify with any scientific certainty that the stains were, in fact, blood. Immediately thereafter, the State's prosecutor asked the officer to explain why forensic testing was not requested. Mims's trial counsel objected on the ground that the question required expert testimony. And after a brief voir dire, the trial court ruled that the officer could testify as an expert in police investigations but could not testify as to whether the stains on Mims's clothes were, in fact, blood. Unsatisfied with the court's ruling, Mims's trial counsel argued that any explanation by the officer as to why the alleged blood stains were not analyzed was irrelevant. However, the trial court disagreed, and thereafter, the officer testified that blood is usually analyzed in order to "confirm the identity of somebody when you are looking . . .trying to figure out who committed the crime."
On appeal, Mims again argues that the police officer's testimony should have been excluded as irrelevant, but we disagree. During cross-examination, Mims elicited the officer's admission that the alleged blood stains on Mims's clothing and shoes had not been forensically tested. Thus, the officer's explanation as to why such testing was not doneafter the failure to test had been called into question by Mimswas certainly relevant to explain the officer's conduct.[18] Accordingly, the trial court did not abuse its discretion in determining that the officer's testimony was relevant and admissible.
Judgment affirmed.
MIKELL, P.J., and BOGGS, J., concur.
NOTES
[1] See, e.g., Goolsby v. State, 299 Ga.App. 330, 330-31, 682 S.E.2d 671 (2009); see also Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[2] See OCGA § 16-5-24(a).
[3] See OCGA § 16-5-21(a)(2).
[4] Prior to the introduction of the audio recording, a sheriff's deputy whose job entailed that of custodian of the local detention center's records testified that all telephone calls placed by inmates are recorded.
[5] The trial court merged those convictions for sentencing purposes.
[6] Smith v. State, 302 Ga.App. 128, 130(1), 690 S.E.2d 449 (2010) (punctuation omitted).
[7] Hall v. State, 287 Ga. 755, 758(3), 699 S.E.2d 321 (2010) (punctuation omitted); see Woodard v. State, 269 Ga. 317, 320(2), 496 S.E.2d 896 (1998).
[8] Hall, 287 Ga. at 758(3), 699 S.E.2d 321 (punctuation omitted).
[9] Duggan v. State, 285 Ga. 363, 366(2), 677 S.E.2d 92 (2009) (punctuation omitted).
[10] See Hall, 287 Ga. at 758(3), 699 S.E.2d 321 (holding that defendant's questions eliciting inconsistencies between child's direct testimony and statements she previously made to her teacher were an attack on child's veracity).
[11] See Brown v. State, 310 Ga.App. 835, 838(1)(b), 714 S.E.2d 395 (2011) (noting that victim's prior consistent statement to nurse undisputedly predated her allegedly fabricated trial testimony).
[12] See Hall, 287 Ga. at 758(3), 699 S.E.2d 321; Brown, 310 Ga.App. at 838(1)(b), 714 S.E.2d 395.
[13] See Woods v. State, 255 Ga.App. 265, 268(3), 564 S.E.2d 853 (2002) (holding that eyewitness's prior consistent statements were admissible because his veracity was attacked at trial, and, because statements were made within minutes of the violent incident and while the eyewitness was still upset, were also admissible as part of the res gestae). See generally OCGA § 24-3-3 ("Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.").
[14] See Wood v. State, 239 Ga.App. 707, 709(2), 522 S.E.2d 51 (1999) (holding that although the proper basis for admitting evidence was not the basis expressed by the trial court, a trial court's evidentiary ruling must be affirmed if it is right for any reason).
[15] Scales v. State, 310 Ga.App. 48, 51(2)(a)(i), 712 S.E.2d 555 (2011) (punctuation omitted).
[16] Id.
[17] Ortiz v. State, 295 Ga.App. 546, 549(2), 672 S.E.2d 507 (2009) (punctuation omitted).
[18] See Holmes v. State, 266 Ga. 530, 531(2), 468 S.E.2d 357 (1996).
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102 S.W.3d 188 (2003)
PRIMROSE OPERATING COMPANY, INC. and Palmer Oilfield Construction Inc., Appellants,
v.
Walter James JONES, III and Jona Jones, Individually and as Next Friends of Allisha and Ty Jones, Minor Children, Appellees.
No. 07-01-0275-CV.
Court of Appeals of Texas, Amarillo.
January 24, 2003.
Rehearing Overruled May 6, 2003.
*190 McMahon, Surovik, Suttle, Buhrmann, Hicks & Gill, William A. Hicks, Brandon J. Logan, for Palmer Oil Field Construction Company Inc.
Kevin Glasheen and Ralph H. Brock, Lubbock, for Appellees.
Craig, Terrill & Hale, Gary M. Bellair, for Primrose Operating Company, Inc.
Before QUINN and REAVIS, JJ., and BOYD, S.J.[1]
OPINION
JOHN T. BOYD, Senior Justice (Assigned).
This is an appeal from a judgment awarding damages for injuries arising from an oilfield accident. In the judgment, Walter James Jones III and his wife Jona Jones, individually and as next friend of their minor children, were awarded approximately 2.7 million dollars in actual and exemplary damages. These parties will be collectively referred to as Jones. The trial court defendants were Primrose Operating Company (Primrose), Palmer Oilfield Construction Company (Palmer), and Mike Byrd Casing Crews, Inc. (also referred to as Byrd Power Tong Service, Inc.). Each defendant filed a notice of appeal, but Byrd subsequently settled with Jones and is not a party to this appeal. Finding merit in Primrose's first issue and Palmer's second issue, we reverse the judgment of the trial court and remand the cause for further proceedings in accordance with our opinion.
The background of this appeal begins with the fact that Primrose was the operator of an oil and gas well in King County. It contracted with Palmer to drill the well and run casing down to 3600 feet on a per-foot basis. Additional work, to a maximum of 3650 feet, would be on a day work basis. Walter Jones was an employee of *191 Palmer. Palmer, in turn, hired Byrd to perform part of the work, including supplying power tongs and elevators. In July 1997, soon after installation of the casing had begun, the crew encountered difficulty raising joints of casing into place for assembly. The difficulty arose because handles on the elevator struck the derrick while the casing was raised. Some of the workers felt the handles on the elevator were too long. However, no other elevator was available and the work continued.
On one occasion, the elevator handles hung on the derrick and, before the driller could stop the winch, the handles acted as a lever, causing the free-hanging end of the casing joint to swing out. As it swung back down, the casing struck Jones on the back of his head, causing him the injuries for which recovery was sought.
The Jones parties filed suit against Primrose and Byrd Casing. Primrose sought indemnification from Palmer under their written agreement. Palmer's worker's compensation carrier, Old Republic Insurance, filed a plea in intervention asserting it was subrogated to any recovery Jones obtained. The King County trial jury returned a verdict for Jones in which it found both Primrose and Byrd negligent and attributed 90 percent of the responsibility to Primrose and 10 percent to Byrd. In conformity with the jury's verdict, the trial court rendered judgment for Jones for $2,690,000 in damages, and $741,624 in prejudgment interest. That Old Republic had a subrogation interest of $85,608 in the judgment was undisputed. The trial court also found that Primrose was entitled to indemnification from Palmer in the amount of $1,000,000, together with $77,000 in attorney fees. Each party filed a notice of appeal, but Byrd subsequently settled.
In pursuing its appeal, Palmer presents five issues for our review. They are whether: 1) the trial court erred in denying their motions for mistrial based on a tainted jury panel, 2) the trial court erred in refusing to submit an issue on Primrose's right of control over Palmer, 3) the evidence was legally or factually sufficient to support the finding that Primrose retained a right of control over Palmer and/or Byrd sufficient to create a duty on Primrose to Jones, 4) the delay in obtaining the reporter's record entitles Palmer to a new trial, and 5) the trial court correctly held Primrose was entitled to indemnification from Palmer under the terms of their written contract.
Primrose presents the following issues: 1) whether Jones' failure to secure a finding on its control over Palmer requires reversal of the judgment against Primrose, 2) whether the appearance of partiality on the part of the jurors requires reversal on public policy grounds, 3) whether the trial court erred in awarding damages for loss of consortium for a child born after the injury, and 4) whether Palmer should be required to pay post-judgment interest on its indemnity obligation.
Jones presents six issues in which they ask us to decide whether: 1) a pretrial "focus group" conducted by Jones probably caused any injury, 2) Primrose's right of control was established by the contract between it and Palmer, 3) the evidence was legally and factually sufficient to show Primrose's employee retained a right of control over Palmer's work, 4) Primrose's employee retained a right of control over Palmer's work, 5) Primrose waived its complaint regarding loss of consortium damages for after-born children, and 6) the reporter's record is sufficient for the purposes of this appeal.
Initially, we will consider the issues concerning jury selection, which encompass Primrose's issue two, Palmer's issue one, and Jones' issue one. The facts giving rise *192 to these issues come from what Primrose and Palmer describe as a mock trial[2] conducted before the jury selection in the case. It is undisputed that King County has a population of just over 300. Anticipating some difficulty in obtaining a jury, the district court had the clerk summon 130 veniremen. The jury summons were mailed on Monday, September 12, 2000. At some time prior to September 14, 2000, one of Jones' attorneys contacted Dr. Blodgett, a veterinarian at the 6666 Ranch in King County. He was seeking use of a conference room for a meeting in preparation for the trial, however, he did not explain the nature of the meeting. Another of Jones' attorneys, the lead counsel at trial, spoke to a secretary at the ranch, telling her that they wanted to conduct a "focus group" to help them decide how to best present their case at the upcoming trial.
Jones' attorney asked the secretary to assemble a group who was representative of the county population, but had not been called for jury duty. The secretary assembled a group of approximately seven adults, including a high school teacher and five students from the teacher's seniors government class. On Thursday, September 14, 2000, the group met at the ranch. Some time before the mock trial, the first attorney obtained a list of those summoned for jury duty in the case; however, he did not recall if he provided the list to Jones' trial attorney beforehand.
Jones' trial attorney presided over the mock trial and was unaware who would be participating before he arrived at the ranch. He asked the participants if any of them had been summoned for jury duty in the case and excluded one person who had been called. The attorney did not ask if any of the group's family members had been summoned to the trial venire. At the meeting, Jones' attorney summarized the evidence he expected would be presented by each party in the case using flip charts and a portion of a video deposition. At the conclusion of the meeting, which lasted approximately two hours, the mock jury held Primrose 80 percent responsible and opined that the Jones parties were entitled to $7,000,000 in damages. Each participant was given a $30 restaurant gift certificate for their participation in the mock trial.
The King County Judge learned of the mock trial on the same day that it was conducted. The judge went to the ranch and obtained a list of all the participants. The judge provided the list to the district clerk, who compared it to the members of the jury venire for the purpose of identifying family relationships between members of the two groups and found several relationships between the two lists. A copy of the mock trial list was also furnished to the district judge.
The case was called for trial on Monday, September 18, 2000. Primrose, Palmer, and Byrd learned of the mock trial before the jury voir dire began and jointly moved for a mistrial on the basis that the mock trial had tainted the entire venire. They also objected to Jones' failure to furnish them a list of the participants in the mock trial which, they argued, seriously impaired their ability to conduct an effective voir dire of the panel. The trial court did not rule on the motion immediately, but carried it on during the voir dire examination.
Even so, the effect of the mock trial was significantly explored during the jury voir *193 dire examination. The parties explored the relationships between venire members and mock trial participants, as well as the effect of the mock trial on the community view of the dispute. One venire member, Mr. Pettiet, pointed out that the mock trial concluded only a few hours before a local junior high football game attended by county residents. He was serving food at the game and, he said, the mock trial, including the $7 million damage finding, was a major topic of conversation. He averred he heard about the case "from every direction," and ultimately stated that he could not set aside what he had heard about the case, which resulted in him being struck for cause. The trial court also allowed a strike for cause in the instance of Dr. Blodgett,[3] who had questioned the ethics of the plaintiffs' attorney's actions in conducting the mock trial at the time. At the conclusion of the voir dire, the motion for mistrial was again urged, but it was overruled.
In challenging the refusal of their mistrial motion, both Primrose and Palmer initially argue the trial court erred because Jones' attorney's conduct violated Texas Disciplinary Rules of Professional Conduct 3.06 and 3.07, which address respectively, maintaining the integrity of the jury system and trial publicity. Parenthetically, we note that paragraph 15 of the preamble to the rules specify that they are not designed to be the standards for procedural decisions. Those rules govern disciplinary proceedings and are only applicable to other types of proceedings to the extent they might manifest public policy. See Shields v. Texas Scottish Rite Hosp. for Crippled Children, 11 S.W.3d 457, 459 (Tex.App.-Eastland 2000, pet. denied).
Texas Rule of Civil Procedure 327 governs the instances in which a party is entitled to a new trial because of jury misconduct. That rule authorizes a court, after taking evidence on the alleged misconduct, to grant a new trial if it finds misconduct by the jury, including any communication made to the jury, or that the juror gave an incorrect answer during voir dire. Tex.R. Civ. P. 327. By including communications made to the jury, it is clear that "jury misconduct" is not limited to acts of jurors. A trial court's denial of a motion for mistrial will not be disturbed without a showing that the court abused its discretion. Till v. Thomas, 10 S.W.3d 730, 734 (Tex.App.-Houston [1st Dist.] 1999, no pet.).[4]
Even construing Disciplinary Rules 3.06 and 3.07 as explicating improper communications under Rule 327, the record does not show the trial court abused its discretion by denying the motion for mistrial. Rule 3.06(a)(2) prohibits an attorney from seeking to influence a venireman or communicate with any member of the venire. Initially, we note that the record reveals only one communication between Jones' attorneys and any member of the venire. That was Jones' trial attorney's conversation in which he discovered that one person included in the group at the 6666 Ranch, who was a member of the jury trial venire, but wanted to serve as a member of the mock trial. It is undisputed that his conversation with the person was limited to explaining that he could not participate *194 in the mock trial. That communication was not improper because it amounted to an effort to avoid a potential violation of Disciplinary Rule 3.06(a).
Rule 3.07 prohibits an attorney from making statements "that a reasonable person would expect to be disseminated by means of public communications" that he should know will have a substantial likelihood of prejudicing a proceeding. There is nothing in the record that shows any of the matters discussed in the mock trial were disseminated by "means of public communications." To adopt appellants' apparent position that word-of-mouth in a small community such as King County is sufficient to fall within the purview of dissemination by "means of public communications" as used in the Rule would be to effectively rewrite the Rule and tell the trial court it abused its discretion by failing to do so. We decline to start down that road.
Whether Jones' attorneys sought to influence members of the venire by communicating with non-members is a fact question for resolution by the trial court. We have noted that it is undisputed that Jones' attorneys took steps to ensure that no members of the venire participated in the mock trial. There was not, however, any evidence that Jones' attorneys asked if family members of the mock trial participants had been summoned to serve on the jury venire in the case, nor was there any showing that the attorneys had instructed the participants not to speak about the case to others in the community before the trial.
Appellants also emphasize the evidence that the mock trial concluded just hours before the local junior high football game and that there was testimony that news of the outcome of the mock trial and the verdict of seven million dollars "spread like wildfire" in the county. That emphasis arises from the testimony of venire member Pettiet's statement that "Y'all got to understand ... we're a big county but we don't have many people and it just spreads like wildfire, and it goes to the school and the post office and the courthouse. That's all we've got." Taken in context, use of the plural "spreads" is referring to the pronoun "it" and refers to news generally, rather than the specific news about the mock trial outcome. Thus, that statement was a general description of the county's culture rather than evidence establishing the extent to which information about the mock trial reached members of the venire. Pettiet gave much more specific information about his view as to the community's knowledge about the facts before the mock trial and the damages they found.
As we have noted, in order to grant a mistrial, even assuming arguendo there was misconduct, the trial court must find the misconduct was material and probably resulted in injury. Tex.R. Civ. P. 327(a). In advancing the proposition that harm may be inferred from the misconduct itself, appellants point to Texas Employers Ins. Ass'n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958) for that proposition. We agree that McCaslin supports that proposition, however, it does not stand for the proposition that such an inference is mandatory and irrefutable. In determining probable injury, we are to consider the record as a whole. Here, the record shows the voir dire examination of the jury venire included rather detailed exploration of the relationships between venire members and participants in the mock trial. The parties had a full opportunity to inquire into what, if any, information had been conveyed to each venire member and what effect it might have on them.
Out of a venire of 130 people, the parties sought, and were granted, four strikes for cause. Appellants have failed to identify *195 any specific members of the jury they were forced to accept because they were denied additional strikes for cause. Based on the record before us, we cannot say the trial court abused its discretion in denying appellants' mistrial motions. We overrule Palmer's first, and Primrose's second issues.
We next consider the failure of the trial court to submit a jury question on Primrose's right of control over Palmer. The common law doctrine of negligence requires a showing of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The existence of a defendant's duty to the plaintiff is the threshold inquiry in a negligence case and has presented difficulty for many courts in the context of a premise occupier's duty to contractors' employees. The determination of duty is a question of law for the court to decide from the facts surrounding the occurrence. Id. Because any liability of Palmer in this case must be derivative of Primrose's liability, our duty inquiry must necessarily focus on Primrose.
The two potential sources of Primrose's duty to Jones are as the occupier of the premises and as the general contractor in drilling the well. An owner or occupier of land generally has a duty to use reasonable care to make and keep the premises safe for business invitees. Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997). As general contractor for the well, there were two potential sources of Primrose's duty to maintain safe premises. It could be liable for injuries arising from premises defects or from negligent activity. Id. at 527. A claim that is the contemporaneous result of negligence is a negligent activity claim rather than one for premises defect. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (premise defect); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985) (negligent activity). Under the facts of this case, Jones' claim is one for negligent activity.
As a general rule, a property owner or a general contractor does not have a duty to see that an independent contractor performs the work in a safe manner. Abalos v. Oil Development Co., 544 S.W.2d 627 (Tex.1976). An exception exists when the general contractor retains or exercises control over the subcontractor's activities. Redinger, 689 S.W.2d at 418. In that circumstance, the general contractor owes a duty to exercise reasonable care in the supervision of the subcontractor's activity. Id.
In advancing their challenge, appellants cite the rule that a plaintiff must obtain a finding on each essential element of their cause of action or face reversal unless the opponent did not object to the failure to submit a question on the issue or the element is established as a matter of law. McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989). Absent waiver, the missing element cannot be deemed found pursuant to Rule 279. Physicians & Surgeons General Hosp. v. Koblizek, 752 S.W.2d 657, 660 (Tex.App.-Corpus Christi 1988, writ denied).
In response to appellants' argument about the right of control question, Jones presents two arguments: 1) Primrose's right of control is established as a matter of law by the contract between it and Palmer, and 2) appellants waived any complaint arising from the omission of a control finding. Jones' contract argument requires a consideration of relevant portions of the contract between Palmer and Primrose. The contract was a standard "footage drilling contract" and provided that Primrose was to pay Palmer $10 per foot *196 to drill and install casing in the well to a depth of 3600 feet. It also provided "all drilling below the ... specified contract depth shall be on a day work basis as defined herein." The contract went on to specify a maximum depth of 3650 feet.
The Term "footage basis" means contractor [Palmer] shall furnish the equipment, labor, and perform services ... to drill a well as specified by [Primrose] to the contract footage depth.... While drilling on a footage basis [Palmer] shall direct, supervise, and control drilling operations and assumes certain liabilities to the extent specifically provided for herein.... The term "daywork basis" means [Palmer] shall furnish equipment, labor, and perform services as herein provided, for a specified sum per day under the direction, supervision and control of [Primrose]. Except for such obligations and liabilities specifically assumed by [Palmer, Primrose] shall be solely responsible and assumes liability for all consequences of operations by both parties while on a daywork basis, including results and all other risks or liabilities incurred in or incident to such operations.
Because it is undisputed that the well exceeded 3600 feet in depth, Jones argues the contract became a day work contract, giving control to Primrose the moment the drill bit exceeded 3600 feet and all subsequent operations were conducted on a day work basis. Appellants argue that the provisions governing day work only applied to work performed below the 3600-foot contract depth. We agree with that interpretation of the contract.
Neither party cites authority construing the relevant provisions of this standardized contract and, likewise, we have found a paucity of such authority. However, in Cleere Drilling Co. v. Dominion Exploration & Production, 2002 U.S. Dist. LEXIS 4424 (N.D. Texas Mar 18, 2002), the court construed a similar contract observing that the parties "had obviously contemplated the fluctuating nature of the Contract's basis." Id.
When construing a written contract, our goal must be to determine the shared intent of the parties as expressed in the agreement. National Union Fire Ins. v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex.1995). Paragraph 4.7(a) of the contract provides that work done on a day work basis includes "all drilling below the contract footage depth as provided in Par. 3.1 including the setting of any string of casing below such depth." The evidence confirms that casing is only installed after the well is drilled. See also Cox v. KTM Drilling, Inc., 395 S.W.2d 851, 853 (Tex. Civ.App.-Amarillo 1965, writ ref'd n.r.e.). Thus, if, as Jones contends, after drilling below the contract depth of 3600 feet, all operations were governed by the contract's day work provisions, the reference in paragraph 4.7 relating to setting casing below that depth would not be necessary. Additionally, paragraph 7.1 of the contract specifically states that casing set "below the footage contract depth" would be on a day work basis.
Other provisions of the contract contemplate temporary operations on a day work basis with a return to a footage basis. For example, paragraph 4.7 provides that any repair work or work beyond that specified in the contract would be on a day work basis. When construing a contract, we must consider the entire agreement giving effect to each of its provisions. R.C. Small & Associates, Inc. v. Southern Mechanical, Inc., 730 S.W.2d 100, 104 (Tex.App.-Dallas 1987, no writ). The construction of the contract urged by Jones would require us to ignore the reference to setting casing contained in paragraph 4.7(a).
*197 For the reasons we have explicated, we hold the contract does not reveal an intent that all operations conducted after the well exceeded the footage contract were to be conducted on a day work basis. We are mindful of Jones' argument that this construction might result in some difficulty in knowing which provisions govern at any particular point in the operation. See Startex Drilling Co. v. Sohio Petroleum Co., 680 F.2d 412, 416 (5th Cir.) (discussing the determination as to whether drilling is operating on a footage or day work basis); Samson Resources Co. v. Quarles Drilling Co., 783 P.2d 974 (Okla.App.1989) (finding contract required notice to operator of change from footage to day work basis). However, this possibility cannot justify us in departing from the plain language of the contract or the rules of construction.
The record is not clear how much casing had been run in the well when Jones's injury occurred. It does reveal that the crew began having problems after running just a few joints. The record does not show how many joints were put in before Jones's injury, but there is evidence that six to ten joints were run after the injury, thus indicating that the injury did not occur while working at the bottom of the well. Jones's burden to show duty made it incumbent on him to establish the parties were operating under the day work provisions of the contract. The evidence is legally insufficient to support such a finding. Thus, we reject Jones' argument that Primrose's right of control over Palmer's operations was established as a matter of law.
In their third issue, Jones argues that the evidence was legally and factually sufficient to show Primrose's representative retained the right to forbid unsafe practices. In supporting that argument, Jones correctly cites the rule that when "considering a factual sufficiency issue, the reviewing court reviews all the evidence ... and reverses only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust." (Emphasis added). However, because Jones failed to obtain a jury finding on Primrose's right of control, a review for factual and legal sufficiency is not applicable. They are limited to showing that Primrose's control over Palmer was established as a matter of law. McKinley, 763 S.W.2d at 410.
We next consider the argument presented in Jones' fourth issue, namely, that any error arising from the failure to obtain a finding on Primrose's control over Palmer was waived. Primrose submitted a list of proposed jury questions, definitions, and instructions. The individual items are not marked as granted or denied, but the document is file marked September 14, 2000. As relevant here, it contained the following proposed question: "Did Primrose Operating Company control the means, methods, and details of Palmer Oilfield Construction Company's work on the casing operation in question?" It went on to list several rights that would not amount to control. An identical question was requested with regard to Primrose's control over Byrd.
At the charge conference, Primrose presented its objections to the court's charge, specifically pointing out its request for definitions on negligence, dangerous conditions, and a request for "the court to submit on [sic] did Primrose Operation Company control the means, methods and details of Byrd Casing Crews' work on the casing operation in question." It did not specifically identify its question with regard to its control over Palmer's work. The trial court stated, "[t]he exceptions and objections presented by defendant Primrose are denied." Palmer adopted Primrose's objections and urged additional *198 requests and objections of its own. See Tex.R. Civ. P. 279.
Citing Carr v. Smith, 22 S.W.3d 128 (Tex.App.-Fort Worth 2000, pet. denied), Jones argues Palmer's purported adoption of Primrose's written requests was ineffective, resulting in a waiver by Palmer also. However, Carr did not involve an express adoption of another party's requests or objections in the trial court. Thus, it is not applicable here.
The question now presented to us is whether Primrose's failure to orally argue each question submitted by it to the trial court resulted in a waiver of the questions not specifically identified in the charge hearing. The standard for reviewing the sufficiency of requests and objections to the jury charge is articulated in State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235 (Tex.1992). In the course of its opinion, after commenting on the complexity previously existing in our jurisprudence to preserve charge error, the court adopted a simple rule to do so. It opined that the relevant inquiry is whether the request "called the trial court's attention to the issue." Id. at 239-40. The court continues to adhere to this test. See Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 n. 14 (Tex.2001). Even so, this standard must be applied in the context of Rule of Civil Procedure 274's admonition making requests "obscured or concealed by ... numerous unnecessary requests." However, here, Primrose's written requests for jury questions regarding its control of Palmer and Byrd, as well as its oral presentation of control over Byrd, were sufficient to call the trial court's attention to the issues and thus preserve the question for appellate review.
Thus, we must sustain Primrose's first issue and Palmer's second issue and hold that Jones failed to establish Primrose's duty to him. Because duty is a necessary element of Jones' negligence claim, our holding requires us to reverse the trial court judgment against Primrose. That disposition also requires reversal of Primrose's claim for indemnification against Palmer. In summary, that holding requires that we reverse the judgment of the trial court and render judgment that Jones take nothing against Primrose and Palmer.
NOTES
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp.2003).
[2] The Jones parties call this meeting a "focus group" while appellants refer to it as a "mock trial." The substance of what took place at the meeting is essentially undisputed, making the nomenclature irrelevant. For simplicity, we will refer to it as a mock trial.
[3] This was the veterinarian at the 6666 Ranch who had authorized the Jones' use of a conference room at the ranch.
[4] Palmer's reliance upon Elston v. Sherman Coca Cola Co., 596 S.W.2d 215 (Tex.Civ.App.-Texarkana 1980, no writ), for the proposition that review of a denial of a motion for new trial is de novo is misplaced. The case actually held the question of injury from juror misconduct is a question of law for the court. Id. at 218.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASVHILLE
Assigned on Briefs May 8, 2012
STATE OF TENNESSEE v. DONALD E. FENTRESS
Direct Appeal from the Circuit Court for Montgomery County
No. 40800030 John H. Gasaway, Judge
No. M2011-01505-CCA-R3-CD - Filed November 7, 2012
The defendant, Donald E. Fentress, appeals the sentencing decision of the Montgomery
County Circuit Court. The defendant was convicted of aggravated burglary, a Class C
felony, and aggravated rape, a Class A felony. He was sentenced to an effective sentence of
twenty-four years in the Department of Correction. On appeal, he contends that his sentence
for rape is excessive under the facts and circumstances of his case. Specifically, he faults the
trial court for failing to apply mitigating factor (8), that the defendant was suffering from a
mental condition which significantly reduced his culpability for the offense. See T.C.A. §
40-35-113(8) (2010). Following review of the record before us, we affirm the decision of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.
John T. Maher (at sentencing and appeal), Clarksville, Tennessee; Collier Goodlett, Assistant
Public Defender (at trial), for the appellant, Donald E. Fentress.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John
Wesley Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney,
for the appellee, State of Tennessee.
OPINION
Procedural History and Factual Background
The charges against the defendant are based upon the actions he took on August 18,
2007, when he entered the apartment of his neighbor, the victim. The defendant, wearing a
Chicago Bulls basketball jersey, came uninvited into the apartment, went into the bedroom
where the victim was, and informed her that he was going to rape her. The defendant
knocked the victim down, repeatedly punched her in the face, pulled up her skirt, ripped her
underwear, and forcibly penetrated her vagina with his penis. The victim, although in pain,
continued to defend herself and attempted to call for help. At some point in the
approximately forty-minute-long encounter, the victim went limp and pretended to be dead.
As the defendant spread her legs, she pushed her fingers into the defendant’s eye sockets.
In the ensuing fray, the victim was able to escape and run to a neighbor’s apartment.
Police were called and responded to the scene in a matter of minutes. Detective Tyler
Barrett of the Clarksville Police Department arrived and observed the victim approach. She
was frantic, upset, and crying. After attempting to calm her, Detective Barrett learned what
had occurred, and the victim specifically said that “Don” had committed the acts. The
defendant and the victim were not friends, but she did recognize the defendant as someone
she saw in the neighborhood often. Detective Barrett went to the defendant’s apartment,
which the victim had pointed out, and was allowed entrance. The defendant denied that he
knew the victim or that he had raped her. However, Detective Barrett observed a Chicago
Bulls jersey in the defendant’s apartment and noted that his eyes were red. The defendant
was taken to the police station for questioning.
The victim was taken by ambulance to the emergency room, where she received
treatment, and a rape kit was completed. The treating physician noted that the victim’s
injuries and statements were consistent with a sexual assault. As a result of the defendant’s
actions, the victim, who was suffering from systemic lupus, sustained multiple injuries to her
face, head, arms, and legs.
The defendant was indicted by a Montgomery County grand jury for aggravated
burglary and aggravated rape. Following a jury trial, he was convicted as charged.
Thereafter, a sentencing hearing was held before the trial court. At the hearing, the State
introduced the pre-sentence report, which denoted that the defendant had one prior
conviction for armed robbery, for which he had served twenty years in prison. Also
introduced was a mental evaluation and competency report from September 28, 2007, which
indicated that the defendant was competent to stand trial and was able to appreciate the
nature and wrongfulness of his actions. The defendant also introduced a report from James
S. Walker, Ph.D., who had evaluated the defendant after trial. The report concluded that the
defendant has a probable mental condition that includes frequently yelling, screaming, hitting
jail cell walls with his fists, and physically fighting a non-existent person. Other than some
letters written by the defendant, no other evidence was entered.
After weighing the evidence presented, the trial court imposed concurrent sentences
-2-
of five years for the burglary conviction and twenty-four years for the rape. Following the
denial of his motion for new trial, the defendant filed a timely notice of appeal.
Analysis
On appeal, the single issue raised by the defendant is whether the sentence imposed
for the rape conviction is excessive because the trial court did not give the defendant’s
mental condition any mitigation consideration under Tennessee Code Annotated section 40-
35-113(8). Previously, our review of a defendant’s challenge to the length, range, or manner
of service of a sentence, has been a de novo review on the record with a presumption that
“the determinations made by the court from which the appeal is taken are correct.” T.C.A.
§ 40-35-401(d). However, in a recent opinion, our supreme court provided a thorough
review of the more recent developments in our sentencing laws and adopted a new standard
of review for sentencing in light of these changes. State v. Susan Renee Bise, ___ S.W.3d
___, No. E2011-00005-SC-R11-CD (Tenn., Sept. 26, 2012). In announcing the new standard
of review, the Bise court reasoned:
[W]hen the 2005 amendments vested the trial court with broad discretionary
authority in the imposition of sentences, de novo appellate review and the
“presumption of correctness” ceased to be relevant. Instead, sentences
imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a “presumption of
reasonableness.”
Id. Therefore, we now review the defendant’s sentencing challenge under an abuse of
discretion standard with a “presumption of reasonableness.” Id. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. T.C.A. § 40-35-401, Sentencing Comm’n Cmts; State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
In fashioning a sentence, the trial court is obliged to determine the propriety of
sentencing alternatives by considering: (1) the evidence, if any, received at the guilty plea
and sentencing hearings; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the enhancement
and mitigating factors; (6) any statistical information provided by the administrative office
of the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
the defendant made on his behalf about sentencing; and (8) the defendant’s potential for
rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; Bise, ___ S.W.3d ___, No.
E2011-00005-SC-R11-CD.
-3-
The trial court should also consider enhancing and mitigating factors; however, the
statutory factors are advisory only. State. v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
Additionally, our supreme court has stated that “a trial court's weighing of various mitigating
and enhancement factors [is] left to the trial court’s sound discretion.” Id. at 345. The trial
court must “place on the record, either orally or in writing, what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” T.C.A. § 40-35-210(2). However, if a trial court misapplies an
enhancing or mitigating factor in passing sentence, said error will not remove the
presumption of reasonableness from its sentencing determination. Susan Renee Bise, No.
E2011-00005-SC-R11-CD.
This court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. The purposes and principles include
“the imposition of a sentence justly deserved in relation to the seriousness of the offense,”
T.C.A. § 40-35-102(1), a punishment sufficient “to prevent crime and promote respect for
the law,” T.C.A. § 40-35-102(3), and consideration of a defendant’s “potential or lack of
potential for . . . rehabilitation,” T.C.A. § 40-35-103(5). See also Carter, 254 S.W.3d at 343.
Under such circumstances, appellate courts are left with a much narrower set of
circumstances in which they might find that a trial court has abused its discretion in setting
the length of the defendant’s sentence. Id. at 345-46. In fact, appellate courts may not
disturb a sentence imposed in such a manner even if we had preferred a different result. Id.
As noted, the defendant challenges only the sentence he received for the rape
conviction. As a Range I offender convicted of a Class A felony, he was subject to a range
of punishment between fifteen and twenty-five years. See T.C.A. § 40-35-112(A)(1). In
setting the length of the sentence at twenty-four years, the trial court found two enhancement
factors, those being prior criminal history and a particularly vulnerable victim. See T.C.A.
40-35-114(1), (4). The defendant makes no challenge to application of those factors, and we
conclude that there was no error in the trial court’s application of them.
The defendant’s sole challenge to the sentence is that the trial court refused to apply
mitigating factor (8) based upon the defendant’s mental condition. In support of his
argument, the defendant relies upon the information and conclusions contained in the report
authored by Dr. Walker. Specifically, he notes the conclusions that: (1) the defendant has
a severe psychotic disorder; (2) he has hallucinations and delusions regarding conflicts with
females; (3) he was incompetent to stand trial at the time of this interview; (4) he needed
immediate involuntary psychological inpatient placement; (5) his current condition brings
into question his mental state at the time of the crime; and (6) further assessment is
warranted.
-4-
We do not dispute the defendant’s claim that this court has held that a defendant’s
history of mental illness qualifies as a mitigating factor under Tennessee Code Annotated
section 40-35-113(8). See State v. Max, 714 S.W.2d 289, 296 (Tenn. Crim. App. 1986).
However, even though the condition may be considered, the defendant must sufficiently
establish not only the presence of the defect, but also a causal link between his ailment and
the offense charged. State v. Robert James Yoreck, III, No. M2004-01289-CCA-R3-CD
(Tenn. Crim. App., at Nashville, June 29, 2004).
In regard to mitigation, the trial court made the following statements on the record:
As far as mitigating factors are concerned, under [Tennessee Code
Annotated section] 40-35-113, what [defense counsel] argued with regard to
[the defendant’s] mental state comes under subsection eight; and what it says
is that the defendant was suffering from a mental or physical condition that
significantly reduced the defendant’s culpability for the offense.
....
But I don’t think even the report by Dr. Walker rises to the level of
saying that the mental condition that he had diminished the culpability when
he decided to walk in behind her as she went into her apartment, beat her and
rape her. And without that connection I’m not going to apply this mitigator.
We must agree with the trial court that Dr. Walker’s report, although expressing
concern about the defendant’s mental state at the time of the crime, does not state with any
certainty that the defendant’s culpability was diminished at that time. In fact, the report is
quiet clear that the defendant’s actual state of mind at the time of the commission of the
offenses could not be determined due to the defendant’s lack of cooperation. Specifically,
the report states: “It will be difficult, if not impossible, to successfully assess [the
defendant’s] mental state without successful treatment of his psychosis.” While the report
can support the conclusion that the defendant is suffering from a psychotic condition at the
present time, it is not evidence of a causal link between his condition and the offense
charged. Moreover, the State introduced a competency evaluation from 2007, much closer
in time to the crime, that determined that the defendant was competent to stand trial and
understood the wrongfulness of his actions. We cannot conclude that the trial court abused
its discretion by refusing to apply this mitigating factor on these facts. As such, the
defendant is entitled to no relief.
CONCLUSION
-5-
Based upon the foregoing, the sentence of twenty-four years is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
-6-
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Case: 15-41257 Document: 00513331460 Page: 1 Date Filed: 01/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41257 FILED
Summary Calendar January 6, 2016
Lyle W. Cayce
Clerk
SHEILA RENEE BELL,
Plaintiff - Appellant
v.
COUNTY OF GALVESTON; DWIGHT D. SULLIVAN; SECRETARY OF
STATE (TEXAS); OFFICE OF THE ATTORNEY GENERAL; JUDGE
SUSAN BAKER, et al.,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:15-CV-209
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Sheila Renee Bell has filed an appeal on September 14, 2015. Her brief
and record excerpts have been read. It appears that Ms. Bell lost custody of
children in a Texas court in 2001. She has complained about that in eight
federal lawsuits she has filed, and at this point no justifiable legal claim is
* 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: 15-41257 Document: 00513331460 Page: 2 Date Filed: 01/06/2016
No. 15-41257
stated or briefed. She has received prior judgments ruling that her claims are
frivolous, and at least two district judges have threatened sanctions. The
courts have decided and Ms. Bell has to accept that decision.
AFFIRMED.
2
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494 F.2d 691
74-1 USTC P 9403
Herbert D. WIENER and Shirley M. Wiener, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.George M. WIENER and Barbara E. Wiener, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
Nos. 72-2933, 72-2934.
United States Court of Appeals, Ninth Circuit.
April 19, 1974.
Sidney J. Machtinger (argued), Greenberg & Glusker, Los Angeles, Cal., for petitioners-appellants.
Scott P. Crampton, Asst. Atty. Gen. (argued), Meyer Rothwacks, Tax Div., U.S. Dept. of Justice, Washington, D.C., Lee H. Henkel, Jr., Chief Counsel, I.R.S., Washington, D.C., for respondent-appellee.
Before DUNIWAY and TRASK, Circuit Judges, and POWELL,1 District judge.
OPINION
PER CURIAM:
1
These are appeals from a decision of the Tax Court which is reported at 58 T.C. 81 (1972). The question presented is one of mixed fact and law. Our examination of the record convinces us that the Tax Court's findings of fact are not clearly erroneous, and that its legal conclusions are correct.
2
Affirmed.
1
The Honorable Charles L. Powell, Senior United States District Judge for the Eastern District of Washington, sitting by designation
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3390
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Leonel Rodriguez-Ceballos, *
*
Appellant. *
___________
Submitted: February 15, 2005
Filed: May 16, 2005
___________
Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
___________
RILEY, Circuit Judge.
Leonel Rodriguez-Ceballos (Rodriguez-Ceballos) appeals the sentence he
received after pleading guilty to illegal reentry following deportation. We reverse the
district court, vacate Rodriguez-Ceballos’s sentence, and remand for resentencing in
light of United States v. Booker, 125 S. Ct. 738 (2005).
I. BACKGROUND
On December 20, 2002, Rodriguez-Ceballos pled guilty to illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. The Presentence Investigation
Report (PSR) recommended an offense level of 21, which included a 16-level
enhancement based on a prior conviction for an aggravated felony (an Iowa
conviction for domestic abuse involving assault with a dangerous weapon) and a 3-
level reduction for acceptance of responsibility. The PSR calculated Rodriguez-
Ceballos’s criminal history category at level II. Based on these calculations, the PSR
stated the sentencing range under the United States Sentencing Guidelines
(Guidelines) was between 41 and 51 months imprisonment. Rodriguez-Ceballos did
not lodge any objections to the PSR based on the Sixth Amendment, but objected to
the 16-level enhancement because it “overstate[d] the seriousness of [Rodriguez-
Ceballos]’s prior record.”
At the sentencing hearing held on April 4, 2003, Rodriguez-Ceballos sought
a downward departure, arguing “the 16-level enhancement overstates the seriousness
of [Rodriguez-Ceballos]’s prior offense.” After the female victim of the Iowa assault
testified at Rodriguez-Ceballos’s sentencing hearing, Rodriguez-Ceballos argued the
assault was a one-time occurrence, the woman no longer fears Rodriguez-Ceballos,
the woman supports Rodriguez-Ceballos’s sentencing position, and the assault
conviction arose from a misunderstanding caused by the English-Spanish language
barrier. In response, the government argued the district court did not have the
“authority to depart,” and, even if it did, it “would abuse its discretion” if it departed.
Concluding it had the “authority to depart under these circumstances,” the district
court found “the entire 16-level increase that has been applied under the
circumstances of the guidelines with regard to Mr. Rodriguez does create a
disproportionate impact on him, and therefore I think a departure is an appropriate
exercise of discretion in this case.” However, the court also recognized “the prior
conviction was for a crime of violence, and that does have some impact on how far
the Court is willing to depart.” Thus, the court decided “to depart down to offense
level 16, with a criminal history category of II.” Based on these findings, the district
court calculated a Guidelines sentencing range of 24 to 30 months imprisonment.
The district court sentenced Rodriguez-Ceballos to 24 months imprisonment.
-2-
Unsatisfied with the district court’s sentencing determination, the government
appealed Rodriguez-Ceballos’s sentence. Concluding “the circumstance of a prior
offense is [not] a proper basis to support a sentencing departure,” a panel of this
circuit held “the district court erred in granting Rodriguez-Ceballos a downward
departure.” United States v. Rodriguez-Ceballos, 365 F.3d 664, 666 (8th Cir. 2004).
Thus, the circuit reversed and remanded for resentencing. Id.
Nearly two months after the circuit remanded Rodriguez-Ceballos’s case for
resentencing, the Supreme Court issued its decision in Blakely v. Washington, 124
S. Ct. 2531 (2004), which held Washington’s sentencing system unconstitutional, and
began to change the landscape as it relates to sentencing under the Guidelines. On
August 13, 2004, the district court held a resentencing hearing. Armed with the
authority contained in Blakely, Rodriguez-Ceballos argued the Guidelines are
unconstitutional and no provisions are severable. Rodriguez-Ceballos sought a
discretionary, non-Guidelines sentence, urging the district court “to revert back to the
sentencing practices that existed prior to 1987 where the court can then exercise its
discretion, . . . to determine where to sentence [Rodriguez-Ceballos] within the
statutory range.” The government, on the other hand, maintained “Blakely does not
apply to the Federal Sentencing Guidelines,” but that, even if it did, “it should not
affect this case because the offense level is based solely on the offense, and then the
levels that were added to the base level were based solely on the issue of recidivism
and [Rodriguez-Ceballos]’s criminal history.”
The district court adhered to the Guidelines range when resentencing
Rodriguez-Ceballos. The district court informed Rodriguez-Ceballos “that what the
court is trying to do, in a very unsettled time in the law, is to try to follow the law as
I understand it to be and to treat people fairly and consistently as best I can.” The
district court declared its task was to “necessarily follow the law as it is, not as it may
be,” which “is particularly pointed these days because what the law is seems to
change from day to day.” Given the state of Supreme Court and Eighth Circuit
-3-
precedent at the time of resentencing, the district court stated, “I am compelled to
conclude, as we sit here today, that the guidelines under the circumstances presented
to the court in this case still apply.” Therefore, the district court concluded the
Guidelines mandated a sentencing range of between 41 and 51 months imprisonment,
based on an offense level of 21 and a criminal history category of II. Addressing
Rodriguez-Ceballos and his Iowa assault conviction, the district court stated, “I have
some concern . . . you did not commit the offense” that resulted in the 16-level
enhancement, and, “to that end, I hope, sir, that what is happening here today you can
tolerate and you can get beyond as you go ahead in your life and that you will not
regard this in too negative a fashion, because the law does what the law must do
based upon what can be determined is certain.” Without the ability to depart
downward, the district court sentenced Rodriguez-Ceballos to 41 months
imprisonment, which represented the low end of the Guidelines range.
Rodriguez-Ceballos appeals his sentence, arguing “the federal sentencing
guidelines are unconstitutional after Blakely and that it was, therefore, error to use the
guidelines to determine [Rodriguez-Ceballos]’s sentence.” The government
maintains Rodriguez-Ceballos failed to preserve the argument he now makes on
appeal because he did not raise the issue at his initial sentencing. However, “the
government concedes that a remand would be necessary” if this “Court concludes that
[Rodriguez-Ceballos] timely preserved his objection,” given “the district court’s
comments at sentencing, as well as statements made to counsel in chambers.”
Alternatively, the government contends Blakely has no effect on this appeal because
the district court sentenced Rodriguez-Ceballos based solely on his criminal history.
During the pendency of this appeal, the Supreme Court decided how Blakely
impacted the Guidelines. On January 12, 2005, the Supreme Court issued its much-
anticipated Booker decision, which excised two provisions of the Sentencing Reform
Act of 1984, effectively creating an advisory Guidelines system in which a sentencing
court must “consider Guidelines ranges,” but also “permits the court to tailor the
-4-
sentence in light of other statutory concerns as well.” Booker, 125 S. Ct. at 756-57
(citing 18 U.S.C. § 3553(a)). Under the advisory Guidelines system, courts of appeal
must review sentences for unreasonableness. Id. at 765.
II. DISCUSSION
To say the least, the Guidelines landscape under which district courts operated
for nearly two decades changed drastically from the time Rodriguez-Ceballos pled
guilty on December 20, 2002, to the time the Supreme Court decided Booker on
January 12, 2005. See United States v. Pirani, No. 03-2871, 2005 WL 1039976, at
*2 (8th Cir. Apr. 29, 2005) (en banc) (characterizing Booker as creating a “profound
change in federal sentencing”); see also id. at *17 (Bye, J., concurring in part and
dissenting in part) (characterizing Booker as causing a “dramatic change in the
federal sentencing framework”). During the course of the monumental sea change
occurring in the Guidelines area, the district court was tasked with sentencing
Rodriguez-Ceballos. Indeed, the district court was required to hit a moving target,
and, through no real fault of its own, missed both times. Now that Booker and Pirani
have steadied the target, we believe the district court should get a third shot at
sentencing Rodriguez-Ceballos, this time under the advisory Guidelines system.
The standard of review will be critically important in most appeals involving
Booker issues. See Booker, 125 S. Ct. at 769 (instructing “reviewing courts to apply
ordinary prudential doctrines” to pending appeals). Indeed, the resolution of this
appeal easily could turn on the standard of review. For example, if we decide
Rodriguez-Ceballos preserved the Blakely/Booker issue such that our review is de
novo, the government concedes we must remand for resentencing. This is a tempting
proposition, as our caselaw indicates Rodriguez-Ceballos’s resentencing argument
concerning Blakely preserved the issue for this appeal, even though Rodriguez-
Ceballos failed to raise such an issue during his initial sentencing. See United States
v. Ross, 279 F.3d 600, 608 (8th Cir. 2002) (reviewing de novo an issue a defendant
on a second appeal raised for the first time because the Supreme Court “announced
-5-
a new (although not watershed) rule of constitutional law” after the initial appeal but
before the defendant’s resentencing). On the other hand, if we decide Rodriguez-
Ceballos failed to preserve the Blakely/Booker issue, then we must review
Rodriguez-Ceballos’s sentence for plain error, Pirani, 2005 WL 1039976, at *3
(failure to preserve issue mandates plain-error review), a standard “demanding
strenuous exertion to get relief” and one that “should not be too easy for defendants”
to meet. United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004). Because
we conclude Rodriguez-Ceballos is entitled to resentencing regardless of the standard
of review we employ, we have no need to decide whether Rodriguez-Ceballos
preserved the Blakely/Booker issue before the district court.
For purposes of this appeal, we assume Rodriguez-Ceballos failed to preserve
the Blakely/Booker issue. Thus, we will conduct a plain-error analysis. Rodriguez-
Ceballos bears the burden to prove plain error, which follows the four-part test
enunciated in United States v. Olano, 507 U.S. 725, 732-36 (1993). To establish
plain error under the Olano test, Rodriguez-Ceballos must establish “(1) error, (2) that
is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S.
461, 467 (1997) (listing the conditions of the Olano plain-error test) (internal
quotations omitted) (alteration in original). If Rodriguez-Ceballos establishes these
three conditions, we may exercise our discretion to remand for resentencing “if (4) the
error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations omitted) (alteration in original).
The first two Olano conditions are easily met in this case, because “[t]he
district court (understandably) committed Booker error by applying the Guidelines
as mandatory, and the error is plain, that is, clear or obvious, at this time.” Pirani,
2005 WL 1039976, at *4. The critical third and fourth conditions ask “whether the
Booker error affected [Rodriguez-Ceballos]’s ‘substantial rights’ in a manner that
‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’”
-6-
Id. (quoting Johnson, 520 U.S. at 467). The crux of this appeal lies in the answer to
that question.
When considering the third condition, a remand is permitted only if Rodriguez-
Ceballos establishes “a ‘reasonable probability’ that the district court would have
imposed a more favorable sentence under the advisory sentencing guidelines regime
mandated by Booker.” Id. at *1. However, when reviewing this “fact-specific”
question, we must guard against giving weight to a district court’s general discontent
with the Guidelines: “It would be relevant to plain error prejudice if the district court
had opined that the sentence produced by the mandatory Guidelines was
unreasonable. A court’s dislike of the Guidelines in general is not relevant.” Id. at
*7 n.6.
At the resentencing hearing, the district court labored under the assumptions
that the Guidelines were mandatory, and that the court had no authority to consider
a sentence outside the Guidelines range, even if the court deemed a lesser sentence
was more appropriate for Rodriguez-Ceballos. From the initial sentencing in 2003
to the resentencing in 2004, the district court consistently expressed its belief that the
Guidelines range resulted in a disproportionate sentence for Rodriguez-Ceballos. The
district court never expressed its general dislike of the Guidelines, but, more
pointedly, enunciated its dislike for the sentence it was required to impose on
Rodriguez-Ceballos under the mandatory Guidelines system. As we read the
resentencing transcript, we glean the district court nearly apologizing to Rodriguez-
Ceballos for the sentence the court believed it was required to impose under the
Guidelines. We are confident there exists a reasonable probability that, had the
district court known the Guidelines were advisory and the court were free to consider
the Guidelines together with other sentencing goals listed in 18 U.S.C. § 3553(a), the
district court would have exercised its discretion by imposing a more favorable
sentence.
-7-
Given Rodriguez-Ceballos’s success in handily meeting the first three Olano
conditions, we conclude Rodriguez-Ceballos also has established the fourth condition
for plain error, such that we may exercise our discretion to remand for resentencing.
The district court departed downward at the initial sentencing. When this court
reversed and remanded for resentencing, the district court, still operating under a
mandatory Guidelines system, expressed concern that Rodriguez-Ceballos’s sentence
was inappropriate. If the district court were provided an opportunity to resentence
Rodriguez-Ceballos based on the advisory Guidelines and objective consideration of
the section 3553(a) factors, the district court could depart downward from the
sentencing range suggested by the Guidelines. Given the state of this record,
affirming Rodriguez-Ceballos’s sentence despite the district court’s erroneous belief
it was required to impose a sentence which the district judge clearly thought had a
disproportionate impact on Rodriguez-Ceballos would “seriously affect[] the fairness,
integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467.
Although we understand “there may be plain Booker errors that meet the third Olano
factor but not the fourth,” Pirani, 2005 WL 1039976, at *7, this is not one of those
cases.
Therefore, we conclude Rodriguez-Ceballos established plain error on appeal,
and he should be afforded an opportunity to be sentenced under the advisory
Guidelines system. Of course, nothing in this opinion suggests a downward departure
is required in this case, as the district court will make that determination by
considering the Guidelines range along with the section 3553(a) factors.
III. CONCLUSION
For the foregoing reasons, we reverse the district court, vacate the sentence,
and remand for resentencing in light of Booker.
______________________________
-8-
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38 Wn. App. 125 (1984)
686 P.2d 492
GLORIA SEHLIN, as Administratrix, Appellant,
v.
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, ET AL, Respondents.
No. 5300-8-III.
The Court of Appeals of Washington, Division Three.
July 17, 1984.
Owen A. Johnson (Charles A. Collins, Donald L. Rudquist, Michael L. Weiner, and DeParcq, Perl, Hunegs, Rudquist & Koenig, P.A., of counsel), for appellant.
Arthur W. Waters, James E. Nelson, John A. Hackett, K.C. Webster, and Hackett, Beecher, Hart, Branom, Vavrichek & Drury, for respondents.
THOMPSON, J.
This is a wrongful death action brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 (FELA) and Washington law.
Edward Sehlin, at the time of his death, was a member of a work crew attempting to rerail a freight car. The Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Milwaukee Road or Railroad), Mr. Sehlin's employer, had rented a D-8 Caterpillar bulldozer (Cat) from Cresto and Lanphere, Inc. (Cresto). Cresto also provided and paid the wages of an operator, Mr. Burchak. Milwaukee Road had hired machinery from Cresto before.
At the work site the railroad tracks ran in an east-west direction. The derailed car was parallel to and north of the railroad tracks and at the base of an embankment. There was a train-mounted derrick to the southwest and a mobile crane directly west of the car. The Cat was to the east of *127 the car. A power pole carrying high voltage lines was east of the Cat and a bit to the north.
Mr. Sehlin was the Cat operator's ground man, relaying hand signals from Roy Carlyon, the site foreman. The crew was attempting to move the derailed car west along the base of the embankment to a point where the embankment was lower. The crew had managed to move the car a short distance by pulling with the derrick and pushing with the Cat. Carlyon wanted the car moved closer to the embankment. Burchak tried pushing on the northwest corner, without success, so it was decided he would move north of the car and push directly south. Mr. Sehlin understood this, but was not told how Burchak planned to move the Cat to the new position.
Mr. Burchak first made several passes to push dirt to his planned position so his Cat would have better footing. During this time, Mr. Sehlin stood near the southeast corner of the derailed car in a place of relative safety. After the area was filled, Burchak backed his Cat to a point where he was sitting approximately even with the power pole. Burchak planned to pivot his Cat and back into position. He put the Cat in forward gear, braked the left track and began pivoting counterclockwise, watching over his shoulder to see that his rippers cleared the power pole. After the rippers cleared, he looked forward in time to see Mr. Sehlin's boots. Mr. Sehlin, having moved easterly from his place by the car toward the Cat, was struck by the blade and died from his injuries.
This action was commenced against Milwaukee Road under FELA. Cresto was joined under products liability and other theories. (Milwaukee Road and Cresto claimed indemnity from each other, but these claims were to be tried separately and are not part of this appeal.) At the close of plaintiff's case, the products liability claims were dismissed. Later, Cresto's motion for directed verdict on the loaned servant doctrine was also granted. The jury returned a special verdict on the remaining claims, finding the Milwaukee Road was not negligent and that Mr. Sehlin *128 was 100 percent contributorially negligent. Motions for a new trial or a judgment notwithstanding the verdict were denied. Mrs. Sehlin appealed. We affirm.
[1] First, Mrs. Sehlin contends the court erroneously refused to give plaintiff's proposed instruction that the decedent was presumed to exercise due care. Mrs. Sehlin correctly contends that under FELA, where there is no evidence as to what a deceased employee was doing immediately before an accident, there is a presumption the employee was exercising due care for his own safety. Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 88 L.Ed. 520, 64 S.Ct. 409 (1944); see also Sunderland v. Pittsburgh & L.E.R.R., 319 F.2d 809 (3d Cir.1963); 25A C.J.S. Death § 80(2) (1966). Here, however, there was evidence presented as to decedent's actions just prior to the accident. Roy Carlyon, the Railroad's foreman, testified he saw the decedent run from a position of safety toward the turning Cat. Mrs. Sehlin contends this evidence is inadequate because Mr. Carlyon was an interested witness and lacked credibility. Assuming the witness was interested and lacked credibility, her argument lacks merit. None of the FELA cases cited by Mrs. Sehlin require evidence from a disinterested witness; they all turn on the lack of any evidence of the decedent's acts. Since there was evidence of the decedent's acts prior to the accident, the court did not err in refusing the proposed instruction.
[2] Next, Mrs. Sehlin contends the court erred when it refused to give an instruction concerning the sudden emergency and rescue doctrines. Plaintiff's proposed instruction 27 provides:
I charge you that when a person is confronted with an emergency through no fault of his own, he is not to be held contributorily [sic] negligent because he did not choose the safest course of conduct in the circumstances. In judging his conduct, the jury should consider the circumstances of the emergency, the time available to the actor to act and all other factors bearing on his conduct.
Also, where one is faced with the perceived necessity to act, to rescue or save another from imminent peril *129 through no fault of the actor, he is not contributorily [sic] negligent if in the attempted rescue he does not choose the safest or the most reasonable course of conduct or exposes himself to danger in so doing, unless it can be said that such act was so unreasonable that a reasonable person faced with the same circumstances would not have proceeded in the manner of the actor involved.
We disagree with defendants' contention that the instruction is defective because it erroneously assumes an emergency exists. Cf. WPI 12.02. However, the instruction, as proposed, does not correctly state the law. The first paragraph concerning emergency does not include a reasonably careful person standard. See WPI 12.02. The second paragraph concerning rescue does not require that the existence of imminent peril be determined by a reasonably prudent person. See Maltman v. Sauer, 84 Wn.2d 975, 977, 530 P.2d 254 (1975). We find the trial court properly refused this instruction because it erroneously stated the law. See Crossen v. Skagit Cy., 100 Wn.2d 355, 669 P.2d 1244 (1983).
Mrs. Sehlin's third assignment of error concerns the dismissal of all claims against Cresto. There are three major areas of contention.
First, Mrs. Sehlin claims the court erroneously dismissed all products liability claims which were based on the absence of certain safety equipment on the Cat. We find the products claims were properly dismissed for lack of proof. Although Mrs. Sehlin presented testimony the Cat did not have a horn, backup signals, or rearview mirrors, there was no proof the absence of this equipment was a proximate cause of the accident.
Second, Mrs. Sehlin claims the court erroneously dismissed Cresto on the borrowed servant doctrine. The court ruled the Cat operator was the Railroad's servant under Sinkler v. Missouri Pac. R.R., 356 U.S. 326, 2 L.Ed.2d 799, 78 S.Ct. 758 (1958), and dismissed plaintiff's claim against Cresto. Assuming only for argument's sake this was error, it was harmless. The jury, instructed that Burchak was Milwaukee Road's agent, found Milwaukee, its employees and *130 agents were not negligent. Thus, the jury, having found Mr. Burchak was not negligent, by that finding likewise absolved both possible masters under the doctrine of respondeat superior.
[3] Finally, Mrs. Sehlin contends her claim that Cresto was directly negligent in failing to provide adequate safety training to its operators should not have been dismissed. This claim was not included in the pleadings nor was it argued at the time of dismissal. It will not be considered for the first time on appeal. Buchsieb/Danard, Inc. v. Skagit Cy., 99 Wn.2d 577, 663 P.2d 487 (1983); RAP 2.5(a).
The next major area of alleged error is the exclusion of evidence of certain standards of the Occupational Safety and Health Act of 1970 and the Washington Industrial Safety and Health Act of 1973, RCW 49.17.
Mrs. Sehlin argues the court erroneously excluded evidence of WAC 296-24-23029(6), which provides: "The driver shall be required to look in the direction of, and keep a clear view of the path of travel." See also Occupational Safety and Health Standards, 29 C.F.R. § 1910.178(n)(6) (1983).[1] Her argument is without merit because the trial court did not exclude this regulation; the court only excluded construction regulations, found at WAC 296-155. Contrary to Mrs. Sehlin's assertion, the court's ruling was not ambiguous. Since the court did not exclude the evidence, there is no basis to claim error.
Mrs. Sehlin also contends the court should have given an instruction on WAC 296-24-23029, but we decline to address this issue since she failed to set out her proposed instruction in her brief. See Thomas v. French, 99 Wn.2d 95, 659 P.2d 1097 (1983).
Next, Mrs. Sehlin suggests the court erred in refusing to *131 allow into evidence WAC 296-155-615(1)(i)(i) and (ii):
(i) Audible alarms. (i) All bidirectional machines, such as rollers, compacters, front-end loaders, bulldozers, and similar equipment, shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction. The horn shall be maintained in an operative condition.
(ii) No employer shall permit earthmoving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.
See Safety and Health Regulations for Construction, 29 C.F.R. § 1926.602(a)(9)(i), (ii) (1983). These regulations are found in sections entitled "Construction Regulations". Under the Occupational Safety and Health Act of 1970, the construction regulations for federal contracts found at 29 C.F.R. § 1926 were adopted for all construction work. 29 C.F.R. § 1910.12(a). These in turn were adopted by the Federal Railroad Administration to apply to railroad construction work. Department of Transportation, FRA, Railroad Occupational Safety & Health Standards; Termination, 43 Fed. Reg. 10,583 (1978) (policy statement). The C.F.R. defines construction as work for construction, alteration and/or repair, including painting and decorating. 29 C.F.R. § 1910.12(b). The WAC contains further definitions.
(5) "Construction work" shall mean and include all or any part of excavation, construction, erection, alteration, repair, demolition, and dismantling, of buildings and other structures and all operations in connection therewith; the excavation, construction, alteration and repair of sewers, trenches, caissons, conduits, pipe lines, roads and all operations pertaining thereto; the moving of buildings and other structures, and to the construction, alteration, repair, or removal of wharfs, docks, bridges, culverts, trestles, piers, abutments or any other construction, alteration, repair or removal work related thereto.
...
*132 (18) "Repair" means to restore a building, machine, roadway, etc., to an original state after damage or decay.
WAC 296-155-012(5), (18). The trial court ruled rerailing railroad cars was not construction. Even under the broad definitions set out above, we agree. There is no evidence these cars were being rerailed pursuant to construction, repair or alteration. Although they may have been using construction equipment, the crew was simply not in the process of constructing anything. The regulations do not apply.
Even if it is assumed the regulations do apply, we do not see how violation of WAC 296-155-615(1)(i)(ii) could be a proximate cause of this accident. The evidence established the Cat was in forward gear at the time of the accident. Presumably, the reverse signal would not sound in forward gear. Furthermore, there is no evidence a reasonable operator would have sounded a horn had there been one. The court's exclusion of these rules did not prohibit the plaintiff from presenting evidence of reasonable practice. Thus, again it appears there was no evidence of proximate cause.
Mrs. Sehlin contends the trial court erroneously excluded evidence of Milwaukee Road's safety rule 160, which provides:
Operators of power-propelled equipment must look in the direction of movement and proceed at a safe speed governed by existing conditions.
The court excluded rule 160 during testimony by Mr. Burchak, apparently concluding the rules did not apply to him. However, after Mr. Burchak testified, the court ruled it would allow counsel to read the rule during cross examination of Roy Carlyon. But Mrs. Sehlin, having failed to avail herself of this opportunity, may not now claim this was error.
[4] Next, Mrs. Sehlin contends the court erred in refusing to allow a railroad employee to testify as an expert. Historically, railroad workers are given an "expert" status concerning railroad operations. See DeParcq, Litigation Under the Federal Employers' Liability Act, 11 Am. Jur. *133 Trials 397, § 74, at 521 (1966). However, the witness must still be qualified to testify to the proper operations. 32 C.J.S. Evidence § 546(11) (1964). Mrs. Sehlin made no effort to lay sufficient foundation to qualify her witness as an expert on the proper methods of rerailing railroad cars. The court did not abuse its discretion by denying automatic expert status to plaintiff's witness. See Duchsherer v. Northern Pac. Ry., 4 Wn. App. 291, 481 P.2d 929 (1971).
Mrs. Sehlin also suggests the court erred in limiting testimony concerning a defective air brake on the derrick and the failure of the Railroad to provide a safe place to work. After plaintiff's witness testified it was not necessary to use a Cat to rerail this car, further evidence of unsafe working conditions was excluded. The court stated plaintiff had enough evidence. The court also ruled evidence of the defective air brake was too remote. Mrs. Sehlin contends this evidence was not too remote since cause in a FELA action differs from proximate cause. The test is whether the employer's negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Rogers v. Missouri Pac. R.R., 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443 (1957). Thus, she argues the excluded evidence was admissible as a remote cause of the accident.
[5] Rulings on the admissibility of evidence are normally left to the court's discretion in FELA actions. Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 916, 66 S.Ct. 740 (1946). The court did not abuse its discretion.
With regard to unsafe working conditions, Mrs. Sehlin was able to present evidence concerning each aspect of her offer of proof including (1) the use of the Cat was unnecessary, (2) the close quarters of the working area, (3) the existence of a dangerous power line, and (4) the best method to rerail was to use two cranes. Limiting further testimony was not an abuse of discretion. See ER 403 (cumulative evidence).
We agree the evidence regarding the defective air brake was too remote. Mrs. Sehlin's offer of proof was only that the crane could not do everything it should have. She failed *134 to explain how this in any way affected the crane's ability to rerail cars. Absent a more specific offer of proof, the court did not abuse its discretion.
Finally, Mrs. Sehlin contends the court should have granted a judgment n.o.v. or a new trial because the verdict was contrary to the evidence. She points to evidence of the difficult working conditions, Mr. Burchak's lack of training by and experience with the Railroad, Mr. Burchak's failure to tell Mr. Sehlin how he was going to move, and Mr. Burchak's failure to look where the blade was going. Mrs. Sehlin stresses this is a FELA action with a different causal standard and with comparative negligence. As a FELA action, the determination of sufficiency of the evidence is to be judged under the federal standard. See Brady v. Southern Ry., 320 U.S. 476, 88 L.Ed. 239, 64 S.Ct. 232 (1943) (must use federal law to determine if there is sufficient evidence to submit the case to the jury). See also DeParcq, 11 Am. Jur. Trials, § 93, at 545; Adair v. Northern Pac. Ry., 64 Wn.2d 539, 392 P.2d 830 (1964). Under the federal cases, jury verdicts are rarely disturbed. See Lavender v. Kurn, supra; Rogers v. Missouri Pac. R.R., supra. As was said in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 35, 88 L.Ed. 520, 525, 64 S.Ct. 409 (1944):
It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions *135 or because judges feel that other results are more reasonable.
(Citations omitted.)
We find the jury verdict was supported by the evidence. Thus, the trial court did not err in denying a new trial or a judgment notwithstanding the verdict.
The judgment is affirmed.
MUNSON, C.J., and McINTURFF, J., concur.
Review denied by Supreme Court October 19, 1984.
NOTES
[1] We assume for argument the regulations apply to this case. WAC 296-24-23003(1) excludes vehicles intended primarily for earth moving. However, it is unclear whether the exclusion applies only to the rules in section 23003 or to all rules in the 230 group. If one looks to the nearly identically worded C.F.R., it is clear the equivalent to section 23029(6) would not apply because the C.F.R. has another numbering system. See 29 C.F.R. § 1910.178.
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755 F.2d 914
1985 A.M.C. 2408
Mascuzziov.Pakistan Natl. Shipping Corp.
84-7712
United States Court of Appeals,Second Circuit.
1/23/85
1
S.D.N.Y.
AFFIRMED
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[Cite as Miller v. Romanauski, 2014-Ohio-1517.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100120
MATTHEW D. MILLER, ET AL.
PLAINTIFFS-APPELLEES
vs.
CLARENCE D. ROMANAUSKI, ET AL.
DEFENDANTS
[APPEAL BY KAREN AND LOREN STRAKA
DEFENDANTS-APPELLANTS]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-04-549932
BEFORE: E.T. Gallagher, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: April 10, 2014
ATTORNEY FOR APPELLANTS
For Loren Straka, et al.
Avery S. Friedman
Avery Friedman & Associates
701 The City Club Building
850 Euclid Avenue
Cleveland, Ohio 44114
For Clarence D. Romanauski
Clarence D. Romanauski, pro se
25937 John Road
Olmsted Township, Ohio 44138
FOR APPELLEES
For Christopher Foran
Michael J. Sikora, III
Macallister A. West
Sikora Law, L.L.C.
8532 Mentor Avenue
Mentor, Ohio 44060
For Justin Abramovich
Michael J. Sikora, III
Sikora Law, L.L.C.
8532 Mentor Avenue
Mentor, Ohio 44060
For Sandy A. Babak
Sandy A. Babak, pro se
25937 John Road
Olmsted Township, Ohio 44138
For John H. Barnhart
John H. Barnhart, pro se
11962 South Maxwell Hill Road
Littleton, Colorado 80127-9604
For Betty J. and Frank X. Bechtel
Betty J. Bechtel, pro se
Frank X. Bechtel, pro se
2325 Quail Hollow Lane
Sandusky, Ohio 44870-6082
For Gerald Dahlke
Gerald Dahlke, pro se
25894 Fernhall Road
Olmsted Township, Ohio 44138
For Charlotte Dailey
Charlotte Dailey, pro se
25755 John Road
Olmsted Township, Ohio 44138
For Rubin DeJesus
Rubin DeJesus, pro se
25915 John Road
Olmsted Township, Ohio 44138
For John G., Loy G., and Susan M. Gnandt
John G. Gnandt, pro se
Loy G. Gnandt, pro se
Susan M. Gnandt, pro se
25873 Fernhall Road
Olmsted Township, Ohio 44138
For John E. Kaufman
John E. Kaufman, pro se
25755 John Road
Olmsted Township, Ohio 44138
For Brigina Kizzen
Brigina Kizzen, pro se
25916 Fernhall Road
Olmsted Township, Ohio 44138
For Grant Lenart
Grant Lenart, pro se
25915 John Road
Olmsted Township, Ohio 44138
For Charles A. and Jacqueline Miller
Charles A. Miller, pro se
Jacqueline Miller, pro se
25889 Fernhall Road
Olmsted Township, Ohio 44138
For Matthew D. Miller
Jonathan D. Clark
Stumphauzer O’Toole McLaughlin McGlamery & Loughman Co., L.P.A.
5455 Detroit Road
Sheffield Village, Ohio 44054
For John Pedaci, III and Sandra R. Pedaci
John Pedaci, III, pro se
Sandra R. Pedaci, pro se
23073 Royalton Road
Columbia Station, Ohio 44028
For Henry and Hilda Ruhr
Henry Ruhr, pro se
Hilda Ruhr, pro se
25887 Fernhall Road
Olmsted Township, Ohio 44138
For Karen and Robert Schilling
Karen Schilling, pro se
Robert Schilling, pro se
25803 John Road
Olmsted Township, Ohio 44138
For Loretta Toth
Loretta Toth, pro se
25914 Fernhall Road
Olmsted Township, Ohio 44138
For Ronald Wallace
Ronald Wallace, pro se
9959 Riverhead Drive
San Diego, California 92129-3225
EILEEN T. GALLAGHER, J.:
{¶1} Defendants-appellants, Karen and Loren Straka (“the Strakas”), appeal a
declaratory judgment that declared the existence of an easement on their property. We
find no merit to the appeal and affirm.
{¶2} Plaintiffs, Matthew and Laura Miller (“the Millers”),1 filed this declaratory
judgment action against numerous defendants asserting claims to an easement for ingress
and egress to their property located at 25879 Fernhall Road in Olmsted Falls. The
Strakas live and have lived at 25827 John Road in Olmsted Falls since January 1, 1973.
This parcel is known as sublot 51 in the Hall Acres Inc. subdivision (“Hall Acres
subdivision”). Since March 18, 1991, the Strakas have also owned an adjoining parcel to
sublot 51, known as sublot 50. Both of the Strakas’ properties front John Road and abut
Fernhall Road. The rear and south portions of the Strakas’ lots contain a portion of land
known as Fernhall Road and constitute the land at issue in this case.
{¶3} In December 2003, the Millers became the owners of property located at
25879 Fernhall Road (“the Miller property”). This property is known as sublots 12 and
13 in the Hall Acres subdivision. Fernhall Road is an undedicated strip of gravel and
asphalt, that provides access to more than eight homes on Fernhall Road, including the
Miller property. John Road is a public, dedicated road by which the Strakas access their
properties.
{¶4} The Hall Acres subdivision was originally owned by John and Minnie Hall
(“the Halls”). The Halls executed a deed conveying 44.80 acres of real property located
Linda and Christopher Foran were substituted as plaintiffs during the trial court
1
proceedings and are the appellees in this appeal.
in Olmsted Township (“the Hall Acres property”) to Hall Acres Inc. by virtue of a
warranty deed, which was recorded on July 29, 1926, in Volume 3409, page 44 in the
Cuyahoga County Recorder’s Office. Hall Acres Inc. created a subdivision from the
Hall Acres property, which was surveyed and platted by the Henry G. Reitz Engineering
Company (“Reitz Engineering”) on or about May 25, 1927. The plat, which was not
recorded, proposed a number of sublots bisected by two 50-foot roads designated on the
plat as Thornbrook Boulevard and Fernhall Road. The platting shows that the only
means of access to lots 12 through 20 would be via Thornbrook Boulevard and Fernhall
Road. The legal description contained in the deed describes all of the land depicted on
the plat.
{¶5} In 1927, Hall Acres Inc. conveyed the Hall Acres property to H. Frederick
Smith by warranty deed (“Hall Acres deed”), which was duly recorded in the Cuyahoga
County Recorder’s Office on June 11, 1927. In the early 1930s, H. Frederick Smith
subdivided the Hall Acres property into a number of sublots bisected by a 50-foot road
shown on the plat as Thornbrook Boulevard and Fernhall Road. In each of the deeds he
executed conveying title to the properties (“the Smith deeds”), H. Frederick Smith
reserved 25 feet of real property for the construction of Fernhall Road and Thornbrook
Boulevard in accordance with the plat. The legal description of each of the Smith deeds
used the centerline of Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as
boundaries for the lots and reserved 25 feet of real property for Fernhall Road and
Thornbrook Boulevard. Fernhall Road and Thornbrook Boulevard were thereafter
constructed out of gravel and asphalt on the reserved portion of each property.
{¶6} H. Frederick Smith conveyed sublot 51 to John Bitten in 1932 and conveyed
lot 50 to Archie Cameron in 1941. The legal descriptions of the properties in both deeds,
which were duly recorded, define the property boundaries as “subject to all legal
highways and 25 feet off the south side thereof for Fernhall Road, proposed.” The first
deed conveying the Millers’ lots includes this same language. Some of the deeds
executed in subsequent conveyances of various sublots omitted the “subject to * * * 25
feet off the south side thereof for Fernhall Road” language. Instead, these deeds refer to
the unrecorded survey of the plat prepared by Reitz Engineering in their legal property
descriptions. For example, the legal description in the deed for the conveyance of sublot
51 to the Strakas in 1973 describes the dimensions of the sublot and adds that the property
is “further known as Sub Lot 51, in the Hall Acres Inc., proposed, according to a survey,
dated May 25, 1927, made by the Henry G. Reitz, Engineering Company, be the same
more or less, but subject to all legal highways.”
{¶7} The Strakas have vehicular access to their properties from John Road, an
improved road that runs parallel to and north of Fernhall Road. It is undisputed that the
residents of Fernhall Road can only access their property from the undedicated Fernhall
Road. It is also undisputed that the Millers and other residents of Fernhall Road have
been openly using some portion of the land that is legally described as Fernhall Road,
proposed, since the original subdivided lots were conveyed. The Strakas dispute the
exact location of the continued access.
{¶8} The subdivision depicted in the original plat was never completed, and for
years Fernhall Road was a single-lane, one-way access road. In 2003 or 2004, the
Strakas objected to the widening of the existing Fernhall Road, which resulted from
dumping additional gravel on the road. The Strakas allegedly sought to stop the mail
from being delivered and the trash from being collected from houses on Fernhall Road.
Consequently, the Millers filed a complaint, which was subsequently amended, seeking a
declaration that properties located along Fernhall Road, including the Strakas, are subject
to a non-exclusive easement for ingress and egress.
{¶9} In their second amended complaint (“the complaint”), the Millers alleged they
have a right to access their property from Fernhall Road by virtue of an express easement
by reservation. They also alleged that the non-exclusive easement was an easement by
prescription, an easement by necessity, and a common law dedication of Fernhall Road
and Thornbrook Boulevard. In 2006, the court granted the Millers’ default judgments
against 22 property owners and stated in its journal entries that the court would determine
the legal description of the easement upon resolution of the remaining claims.
{¶10} In March 2008, the Millers filed a motion for summary judgment.
Meanwhile, defendants, William and Mary Smith (“the Smiths”), obtained relief from the
default judgment against them and filed an answer. In their answer, the Smiths asserted
a cross-claim, counterclaim, and third-party complaint, alleging that when H. Frederick
Smith subdivided the Halls Acres property in the 1930s, he reserved 25 feet of real
property for the construction of Fernhall Road and/or Thornbrook Boulevard in the titles
to each of the subdivided lots. The Smiths also sought a declaratory judgment that the
interests of the Strakas and the Millers in their properties are subject to a non-exclusive
easement of ingress and egress. The Smiths also filed a motion for summary judgment.
{¶11} The trial court granted the Millers and the Smiths’ motions for summary
judgment. In its journal entry, the court declared that an easement exists that allows
ingress and egress for the properties in the Hall Acres subdivision on two alternative
grounds: (1) express easement by reservation, and (2) implied easement by necessity.
Following an evidentiary hearing, the court determined the exact location and dimensions
of the easement and found that the easement is a total of 12 feet wide; six feet on either
side of the centerline. The court further ordered the Millers to “cause a legal description
of said easement to be prepared using all proper legal descriptions and recorded upon all
subject properties.”
{¶12} The Strakas filed a notice of appeal, which was dismissed for lack of a final
appealable order. While the case was on remand to the trial court, Christopher and Linda
Foran (“the Forans”) were substituted as plaintiffs in lieu of the Millers after they took
possession of the Millers’ property. On March 1, 2013, a plat identifying the precise
location of the easement was recorded with the Cuyahoga County recorder, and the plat
was assigned Instrument No. 201303010647 (“Easement plat”). The Easement plat and
legal description specifying the exact boundaries of the easement were attached to an
order filed by the trial court on July 21, 2013, which was also filed with the county
recorder. In the July 21, 2013 entry, the trial court issued its final entry concluding that
there were no further pending claims. The Strakas now appeal the summary judgment
and raise six assignments of error, which we discuss out of order for the sake of economy.
Standard of Review
{¶13} We review an appeal from summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for
summary judgment bears the burden of demonstrating the absence of a genuine issue of
material fact as to the essential element of the case with evidence of the type listed in
Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once
the moving party demonstrates entitlement to summary judgment, the burden shifts to the
nonmoving party to produce evidence related to any issue on which the party bears the
burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when,
after construing the evidence in a light most favorable to the party against whom the
motion is made, reasonable minds can only reach a conclusion that is adverse to the
nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696
N.E.2d 201 (1998).
Express Easement by Reservation
{¶14} In the second assignment of error, the Strakas argue the trial court erred in
declaring the existence of an express easement by reservation. They contend the trial
court erroneously applied implied easement by estoppel principles to find that an express
easement existed.
{¶15} An easement is an interest in the land of another, created by prescription or
express or implied grant, that entitles the owner of the easement to a limited use of
another’s land in which the interest exists. Alban v. R.K. Co., 15 Ohio St.2d 229, 231,
239 N.E.2d 22 (1968). Easements may be appurtenant to the land or “in gross.”
Gateway Park, L.L.C. v. Ferrous Realty Ltd., 8th Dist. Cuyahoga No. 91082,
2008-Ohio-6161, ¶ 28. An easement “in gross” has been defined as “an easement that is
not appurtenant to any estate in land or does not belong to any person by virtue of
ownership of estate in other land but is mere personal interest or right to use land of
another.” Mourray v. Evanoff, 6th Dist. Wood No. WD-96-042, 1997 Ohio App. LEXIS
2168 (May 23, 1997), quoting Black’s Law Dictionary 509 (6th Ed. Rev.1990).
{¶16} By contrast, an easement appurtenant to the land “always implies an interest
in the land, * * * and constitutes a part of the real property, over or in which it is to be
enjoyed.” Warren v. Brenner, 89 Ohio App. 188, 192, 195, 101 N.E.2d 157 (9th
Dist.1950). An easement appurtenant requires a dominant estate to which the benefit of
the easement attaches and a servient estate upon which the obligation or burden rests. Id.
Thus, easements appurtenant “run with the land,” as opposed to easements in gross,
which convey to another a personal privilege to use the land but expires with the party to
whom the privilege belongs. Gateway Park at ¶ 28, citing Warren v. Brenner at 195.
Once an easement appurtenant is established, it attaches to the dominant estate and passes
with every conveyance of that estate, even without mention of the easement in the
conveyance. Merrill Lynch Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th
Dist. Summit No. 24943, 2010-Ohio-1827, ¶ 30, citing Shields v. Titus, 46 Ohio St. 528,
22 N.E. 717 (1889).
{¶17} An easement may be created by any one of four methods (1) by grant; (2)
implication; (3) prescription; or (4) estoppel. Gateway Park at ¶ 29. In this case, the
court determined that the easement was expressly created by grant in the “root deeds”
conveying title to the first owners of subdivided property in the Hall Acres subdivision.
The Strakas contend the “subject to” language contained in the root titles is a term of
qualification rather than of contract and does not sufficiently establish the grantor’s intent
to convey an easement. We disagree.
{¶18} In support of their argument, the Strakas cite Clark v. Butler, 4th Dist. Ross
No. 12CA3315, 2012-Ohio-5618, for the proposition that the “subject to” in the root
deeds is ambiguous. The legal description in the deed at issue in Clark stated: “The
4.890-acre tract conveyed herein is subject to an easement for the installation and
maintenance of a leach/sewage discharge pipeline granted herein from the adjacent 1.577
acre tract of land.” The Clark court found that although this language is a little
confusing, it did not rise to the level of ambiguity because the description expressly states
that the easement is granted “from” the 1.577 acre parcel.
{¶19} The Strakas argue Clark is distinguishable from the instant case because
unlike the language in the root deeds, the language in the Clark deeds identified the
easement as coming “from” the 1.577 acre parcel, the servient estate. However, the
Clark court also observed that Black’s Law Dictionary defines the term “subject to” as
“subordinate” and “subservient.” Id. at ¶ 9. It also adopted the trial court’s reasoning
that the word “‘subject’ connotes a servient estate.” Id. Therefore, Clark actually
stands for the proposition that the term “subject to” modifies the servient estate by virtue
of an easement.
{¶20} As previously stated, Hall Acres Inc. conveyed the Hall Acres property to H.
Frederick Smith when it executed the Hall Acres deed. H. Frederick Smith subdivided
the Hall Acres property into a number of sublots and conveyed titles to these sublots to
various grantees. The legal description in each of the Smith deeds used the centerline of
Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as boundaries for the
sublots and reserved 25 feet of real property in each sublot for Fernhall Road and
Thornbrook Boulevard. Furthermore, the Smith deeds expressly define the property
boundaries as “subject to all legal highways and 25 feet off the south side thereof for
Fernhall Road, proposed.”
{¶21} Therefore, we agree with the trial court that the “root deeds” expressly
created the Fernhall Road easement, which is an appurtenant easement that “runs with the
land,” even though it was expressly not stated in the Strakas’ deeds. See Merrill Lynch
Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943,
2010-Ohio-1827, ¶ 30, citing Shields v. Titus, 46 Ohio St. 528, 22 N.E. 717 (1889).
Accordingly, we overrule the second assignment of error.
Notice and Lack of Dedication
{¶22} In the third assignment of error, the Strakas argue the trial court erred in
declaring the existence of an express easement by reservation across their land because
the Strakas’ deed does not create an express easement by reservation. They contend that
the easement was never created by the root deeds because Fernhall Road was never
dedicated. They also contend that because they had no notice of the easement on their
property, the easement is unenforceable.
{¶23} The Strakas underscore the word “proposed” in the root deeds where they
state that the conveyances are “subject to” 25 feet “off the southerly side of Fernhall
Road, Proposed.” (Emphasis added.) They contend this language contemplates a
25-foot reservation off the south side of their property “in the event that Fernhall Road
becomes a dedicated road.” And since Fernhall Road has never become a dedicated
road, they contend the easement was never created.
{¶24} The Seventh District Court of Appeals addressed this same argument in
Burlenski v. Cheslock, 7th Dist. Belmont No. 1293, 1979 Ohio App. LEXIS 11929 (Aug.
21, 1979). In that case, the trial court granted plaintiffs a permanent injunction against
defendants enjoining them from building a fence to close off a private driveway that
provided the sole means of ingress and egress to and from the plaintiff’s premises. The
defendants argued they only gave plaintiffs permission to use the driveway temporarily
while they were building their home and that because the driveway was not necessary for
ingress and egress, there was no easement by necessity. In affirming the trial court’s
judgment, the Burlenski court determined that the easement arose from the express
language of the deed. In reaching this conclusion, the court explained:
[T]he deed expressly states that the north boundary of plaintiffs’ property is
the south line of a proposed 40 foot street. The evidence in this case * * *
established that the proposed 40-foot street was on a proposed plat prepared
by defendants but which was never recorded and that plaintiffs built their
house on the basis of their reliance on access to the existing driveway of
defendants that abuts their property at the location of the proposed 40 foot
street.
Thus, the fact that the easement existed in place of a proposed street rather than a
dedicated road had no bearing on the validity of the easement.
{¶25} In Burlenski, the easement was obviously intended to provide a means of
ingress and egress to homes built along the proposed 40-foot street of the proposed plat.
Indeed, no particular words are necessary to grant an easement if the manifest intention of
the grantor was to grant an easement. Lake White Community Assn. v. Armour, 4th Dist.
Pike No. 394, 1987 Ohio App. LEXIS 10065 (Dec. 15, 1987), citing Mansfield v.
Richardson, 4 Ohio L. Abs. 319 (9th Dist.1926). Ohio courts have uniformly held that
“an implied easement for the purposes of a road can be established by virtue of the
original lots in a subdivision having been purchased with reference to a plat showing said
road.” Manifold v. Gaydos, 6th Dist. Ottawa No. OT-06-021, 2007-Ohio-566, ¶ 19,
citing Clagg v. Baycliffs Corp., 6th Dist. Ottawa No. OT-96-023, 1997 Ohio App. LEXIS
752 (Mar. 7, 1997), aff’d, Clagg v. Baycliffs, 82 Ohio St.3d 277, 1998-Ohio-414, 695
N.E.2d 728. See also Burlenski; Krzewinski v. Eaton Homes, Inc., 108 Ohio App. 175,
161 N.E.2d 88 (9th Dist.1958); Finlaw v. Hunter, 87 Ohio App. 543, 96 N.E.2d 319 (1st
Dist.1949). Therefore, we find no merit to the Strakas’ argument that the easement was
never created because Fernhall Road was never dedicated.
{¶26} The Strakas also contend that although the easement was mentioned in the
root deeds, they did not have actual notice of the easement because the “25-feet”
language was not contained in their own deeds.
{¶27} Pursuant to R.C. 5301.25(A), a bona fide purchaser for value is bound by an
encumbrance upon land only if he has constructive or actual knowledge of the
encumbrance. Tiller v. Hinton, 19 Ohio St.3d 66, 482 N.E.2d 946 (1985), syllabus.
However, a purchaser may be charged with constructive notice if the encumbrance was
recited in any deed in the chain of title to the property. Emrick v. Multicon Builders,
Inc., 57 Ohio St.3d 107, 109, 566 N.E.2d 1189 (Jan. 30, 1991), citing Tiller. See also
Thames v. Asia’s Janitorial Serv., 81 Ohio App.3d 579, 611 N.E.2d 948 (6th Dist.1992);
Morris v. Daniels, 35 Ohio St. 406, 416 (1880); Blake v. Graham, 6 Ohio St. 580,
583-584 (1856).
{¶28} The Strakas concede in their brief that they “do not dispute that the language
making their property ‘subject to twenty-five (25) feet off the southern side of Fernhall
Road, Proposed’ is contained in the root deeds to lots 50 and 51, and, therefore, is within
their chain of title.” Moreover, their deed to sublot 51 identifies their property as “Sub
Lot 51, in Hall Acres Inc., proposed, according to a survey, dated May 25, 1927, made by
the Henry G. Reitz Engineering Company.” Identical language exists in their deed to
sublot 50 thereby giving notice of a possible encumbrance identified in the plat or chain
of title. Thus, not only was the easement expressly provided for in the root deeds to
sublots 50 and 51, but the Strakas’ own deeds make reference to the original proposed
plat for a complete description of the properties. Therefore, the Strakas had constructive
notice of the express easement provided in the root deeds in the chain of title to their
properties and are bound by them.
{¶29} Accordingly, we overrule the third assignment of error.
Express or Implied Easement
{¶30} In the first assignment of error, the Strakas argue the trial court erred by
simultaneously declaring both an express easement by reservation and an implied
easement by necessity. They contend that Ohio law does not permit an easement to be
simultaneously characterized as both an express easement by reservation and an implied
easement by necessity.
{¶31} In Tiller v. Hinton, the Ohio Supreme Court expressly held that “because
easements of necessity are implied by law to provide a right of way over land which could
have been effectuated by express grant but was not, one may not simultaneously have an
easement over another’s land both by express grant and an easement implied of
necessity.” Id. at 69. Further, “[e]asements implied of necessity are not favored
because, like implied easements generally, they are ‘in derogation of the rule that written
instruments shall speak for themselves.’” Id., quoting Ciski v. Wentworth, 122 Ohio St.
487, 172 N.E. 276 (1930), paragraph one of the syllabus.
{¶32} Evidence in the record establishes the existence of an express easement that
was created by the root deeds to the Strakas’ properties, and since the Strakas had
constructive notice of the easement, the easement is binding on them. Therefore, the
circumstances do not support the court’s finding of an easement implied of necessity.
However, for the reasons that follow, we find this error harmless.
{¶33} The first assignment of error is overruled.
{¶34} Having determined that the Strakas are bound by an express easement for
purposes of ingress and egress and that an express easement cannot simultaneously exist
with an implied easement of necessity, the remaining three assigned errors, which relate
to the trial court’s finding of an implied easement of necessity, are moot.
{¶35} Finally, the Strakas suggest, without an expressly assigned error, that the
trial court erred in declaring the existence of the easement without identifying who will
bear the cost of maintenance of the easement and/or liability for injuries sustained on the
easement running through the Strakas’ land. However, no one raised these issues in the
trial. Issues that could have been raised and resolved in the trial court cannot be raised
for the first time on appeal. Thompson v. Preferred Risk Mut. Ins. Co., 32 Ohio St.3d
340, 342, 513 N.E.2d 733 (1987); Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist.
Cuyahoga Nos. 86444 and 87305, 2006-Ohio-4880, ¶ 33. Therefore, issues not raised in
the trial court are forfeited on appeal. State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 21-23.
{¶36} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
| {
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919 N.E.2d 522 (2006)
362 Ill. App.3d 1230
PEKIN INS. CO.
v.
HARTZ CONST. CO.
No. 1-05-1994.
Appellate Court of Illinois, First District.
February 3, 2006.
Affirmed.
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} |
(2008)
Higinia COSME-PÉREZ, et al., Plaintiffs,
v.
MUNICIPALITY OF JUANA DÍAZ; Ramón A. Hernández-Torres, Mrs. Hernández-Torres, and their Conjugal Partnership; Commonwealth of Puerto Rico; John Doe; Richard Doe; and their Respective Insurance Companies, Defendants.
Civil No. 07-1942 (DRD).
United States District Court, D. Puerto Rico.
September 30, 2008.
ORDER
DANIEL R. DOMÍNGUEZ, District Judge.
Pending before the Court are: (a) Motion To Dismiss Pursuant To Rule 12(b)(6) Of the Federal Rules Of Civil Procedure filed by the Commonwealth of Puerto Rico and the Hon. Ramón A. Hernández Torres ("Mayor Hernández"), in his personal and official capacity, as Mayor of the Municipality of Juana Diaz (Docket No. 8); (b) Motion To Dismiss filed by the Municipality of Juana Diaz ("Municipality") (Docket No. 11); and (c) plaintiffs' Response To Motion To Dismiss (Docket No. 17). The Court notes that plaintiffs moved for voluntary dismissal as to the Commonwealth of Puerto Rico (Docket No. 16), under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").
This matter was referred to the United States Magistrate Judge Vélez-Rive ("Magistrate Judge") for report and recommendation on (Docket entries No. 22 and 23).
On July 2, 2008, the Magistrate Judge's Report and Recommendation was entered (Docket No. 24). In the Report and Recommendation, the Magistrate recommended that defendants' motion to dismiss be granted in part and denied in part. The Magistrate Judge allowed the defendants ten (10) days to object to the Report and Recommendation, that is, until July 17, 2008. The record shows that the Municipality of Juana Diaz timely objected to the Report and Recommendation (Docket No. 25), as well as Mayor Hernández' request to join the objections filed by the Municipality (Docket No. 26). The Court notes that plaintiffs did not object to the Report and Recommendation. For the reasons set forth below, the Report and Recommendation issued by the Magistrate Judge is adopted in toto, albeit on alternate grounds, as to the standard of a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").
Factual Background
Plaintiff Higinia Cosme-Pérez ("Cosme") was sixty-nine years old at the time the instant complaint was filed on October 4, 2007. See Complaint, Docket No. 1, ¶ 11. Cosme worked with the Municipality's Head Start Program from September 12, 2003 through January 12, 2007, as a full time employee.[1] During the year 2006, Cosme's health was "suffering incapacitating health condition that required medical treatment including surgery." See Complaint, Docket No. 1, ¶ 12. Cosme was on medical leave from August 10, 2006 until January 12, 2007. See Complaint, Docket No. 1, ¶ 12. During this time, Cosme alleges that she was constantly harassed and discriminated against by Mayor Hernández, and other personnel, in the "presence of third parties." See Complaint, Docket No. 1, ¶ 13. Cosme claims that this situation moved her to request a sick leave without pay. Instead, she was transferred from Coamo to Juana Diaz, only to find that another person was "doing her assigned duties." See Complaint, Docket No. 1, ¶ 15. Cosme felt "forced to resign" and requested leave of one-year without pay upon tendering her resignation. See Complaint, Docket No. 1, ¶ 16. Mayor Hernández met with Cosme on January 10, 2007, and the Mayor "told plaintiff not to worry that he already told Carlitos (Carlos Colon, defendant's special aid) and told her to see Carlitos." See Complaint, Docket No. 1, ¶ 16. Subsequently, "Plaintiff went to Carlos Colon's office where he told her that the Mayor has explained her request and he will [sic] take care of the approval of the one-year leave without pay." See Complaint, Docket No. 1, ¶ 16. However, "the one-year leave without pay was never granted." See Complaint, Docket No. 1, ¶ 16.
Cosme resigned on January 12, 2007, only two (2) days after her meetings with Mayor Hernández and with Carlos Colón. See Complaint, Docket No. 1, ¶ 11. Cosme filed a complaint with the United States Equal Employment Commission ("EEOC") on April 9, 2007, and the Notice of Right to Sue was issued on July 9, 2007. See Complaint, Docket No. 1, ¶ 19. The instant action ensued on October 4, 2007.
Standard of Review
The district court may refer dispositive motions to a United States Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Civil Rule 72(a) of the Local Rules of the United States District Court for the District of Puerto Rico ("L.Civ. R."). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Fed.R.Civ.P. 72(b) and L.Civ.R. 72(d). Moreover, 28 U.S.C. § 636(b)(1) (1993), in pertinent part, provides that:
Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
(Emphasis ours).
"Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court, and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See also United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).
The Court, in order to accept the unopposed report and recommendation, needs only satisfy itself by ascertaining that there is no "plain error" on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir. 1996) (en banc) (extending the deferential "plain error" standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) ("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding Fed.R.Civ.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) ("when no objections are filed, the district court need only review the record for plain error").
The standard for an objected report and recommendation is de novo review as to those issues that are properly objected. Borden v. Secretary of H.H.S., 836 F.2d at 6.
Hence, the Court will review de novo the specific objections of the Municipality and Mayor Hernández in his official and personal capacities, and will review the Magistrate Judge's findings pertaining to plaintiffs, under the plain error standard, as the Report and Recommendation stands unopposed by plaintiffs. Thus, the Court, in order to accept the unopposed Report and Recommendation, needs only satisfy itself by ascertaining that there is no "plain error" on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc) (extending the deferential "plain error" standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982) (en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R. 2001) ("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous") (adopting the Advisory Committee note regarding Fed.R.Civ.P 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990) ("when no objections are filed, the district court need only review the record for plain error").
The objections filed by the Municipality and joined by Mayor Hernández are: (a) the Magistrate Judge's use of an incorrect motion to dismiss standard under Rule 12(b)(6), as the standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) has been abrogated by Bell Atlantic Corporation, et al. v. Twonibly, et al., 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007); and (b) all causes of actions are time barred, as the complaint has "significant factual gaps" which are necessary to determine the timeliness of the EEOC charge.
For the reasons set forth below, the Court finds no "plain error" as to the findings pertaining to plaintiffs. The Magistrate Judge's recommendations are: (a) based upon the notice of voluntary.dismissal filed by plaintiffs, all claims against the Commonwealth of Puerto Rico shall be dismissed with prejudice; (b) the dismissal request filed by Mayor Hernández, as to the claims under ADA, AREA and Title VII, in his personal capacity, should be granted; (c) the dismissal request as to the claims under 42 U.S.C. § 1983 and pendent state claims, against Mayor Hernández in his official capacity shall be denied; and (d) the Municipality's dismissal request should be denied. See Report and Recommendation (Docket No. 24 at page 14). The Court agrees with the Magistrate Judge's recommendation, albeit on other grounds. The Court briefly explains.
Applicable Law and Discussion
The motion to dismiss standard under Fed.R.Civ.R. 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") provides that a complaint will be dismissed for "failure to state a claim upon which relief can be granted." "So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, `this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" (Citations omitted). Bell Atlantic Corporation, et al. v. Twombly, et al., 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). In Twombly, 127 S.Ct. at 1965 and 1974, the Court held:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... (citations omitted) . . . a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
. . .
Here, in contrast, we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. (Emphasis ours).
See also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) ("Specific facts are not necessary; the statements need only `give the defendants fair notice of what the ... claim is and the grounds upon which it rests'") (quoting Twombly, 127 S.Ct. at 1964) (emphasis ours); Thomas v. Rhode Island, 542 F.3d 944, 948 n. 4 (1st Cir. 2008) (the motion to dismiss standard followed in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) "no longer governs in light of Twombly" (quoting Twombly, 127 S.Ct. at 1964); Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir.2007) (citing Twombly ); and Torres v. Bella Vista Hospital, Inc., 523 F.Supp.2d 123, 133 (D.P.R. 2007) (quoting Twombly, 127 S.Ct. at 1974). Thus, the new standard under Twombly is that a claim for relief must contain legal allegations that "are plausible on its face."
A district court's dismissal of a claim under Fed.R.Civ.P. 12(b)(6) is reviewed de novo by the Court of Appeals. Thomas v. Rhode Island, 542 F.3d 944 (1st Cir.2008). "In doing so, we must assume the truth of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences therefrom." Thomas, 542 F.3d at 948 (citing Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.2008)).
Based on the above premises, the Court finds that paragraphs number ("¶") 11, 12, 13, 14, 15, 16, 19 of the Complaint meet the Twombly test, as the statements provide notice to defendants "enough to raise a right to relief above the speculative level,... and the grounds upon which it rests," Twombly, 127 S.Ct. at 1965. Moreover, the facts as pled in the complaint are "plausible" as opposed to "conceivable," as plaintiff stated in the Complaint a claim upon which a relief can be granted. The Court finds that the Complaint provides sufficient information as to plaintiffs' role as an employee of the Municipality's Head Start Program; her employee history with Mayor Hernández since the year 2006, until her "forced" resignation on January 12, 2007 due to the alleged misrepresentations made by Mayor Hernández to plaintiff among other alleged "discriminatory incidents."[2]
A colorable action under 42 U.S.C. § 1983
Section 1983 of the Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceedings for redress....[3]
It is well settled that a state or an arm of a state is not a covered "person" under 42 U.S.C. § 1983. See Will v. Michigan Department of State Police, et al., 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Likewise, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.... As such, it is no different from a suit against the State itself." (Citations omitted). (Emphasis ours). Will v. Michigan, 491 U.S. at 71, 109 S.Ct. 2304. See also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). However, when plaintiff seeks a declaratory or injunctive relief or any other equitable remedy under federal law, the courts have found federal jurisdiction in an action against the state or a state official in his official capacity, as opposed to personal capacity. Mills v. State of Maine, 118 F.3d 37, 54 (1st Cir. 1997). In Mills, 118 F.3d at 54, citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Court held:
Since our decision in Ex Parte Young, [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ], we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to "end a continuing violation of federal law" (internal citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68 [106 S.Ct. 423, 88 L.Ed.2d 371] (1985)). The Ex Parte Young doctrine does not apply in cases where plaintiffs seek monetary relief for past violations of federal law, regardless of whether the party the plaintiffs seek to designate as a defendant is nominally a state officer sued in his official capacity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). (Emphasis ours).
In Pennhurst, 465 U.S. at 102-103, 104 S.Ct. 900, the Court held:
The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State. This was the holding in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that the Eleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is "void" and therefore does not "impart to [the officer] any immunity from responsibility to the supreme authority of the United States." Id., at 160, 28 S.Ct., at 454. Since the State could not authorize the action, the officer was "stripped of his official or representative character and [was] subjected to the consequences of his official conduct." Ibid.
While the rule permitting suits alleging conduct contrary to "the supreme authority of the United States" has survived, the theory of Young has not been provided an expansive interpretation. Thus, in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court emphasized that the Eleventh Amendment bars some forms of injunctive relief against state officials for violation of federal law. Id., at 666-667 [94 S.Ct., at 1357-1358]. In particular, Edelman held that when a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief. Under the theory of Young, such a suit would not be one against the State since the federal-law allegation would strip the state officer of his official authority. Nevertheless, retroactive relief was barred by the Eleventh Amendment. (Emphasis ours).
In the instant case, plaintiff is seeking strictly monetary relief from under 42 U.S.C. § 1983, for past violations, but no equitable remedy or injunctive relief has been detected by the Court (Docket entries No. 1 and 17).
However, there is a question of a § 1983 action against Mayor Hernández in his official and personal capacity, as well as to the liability of the Municipality of Juana Diaz. It is settled that Mayor Hernández is not a state official, for the Mayor is not an employee of the Commonwealth of Puerto Rico, but an employee of the Municipality of Juana Díaz. The municipalities of Puerto Rico are not covered under the umbrella of the Eleventh Amendment, as they are not an arm of the state, and as stated before Mayor Hernández, suffers the same result as not being protected by the Eleventh Amendment, as the municipalities. Will v. Michigan Dept. of State Police, 491 U.S. at 71, 109 S.Ct. 2304. The Court briefly explains.
The Mayor, the Municipality and the § 1983 Action
The Puerto Rico Act of Autonomous Municipalities, Title 21, section 4001(u) of the Laws of Puerto Rico Annotated (hereinafter "L.P.R.A."), 21 L.P.R.A. § 4001(u), provides that: "Municipality shall mean a geographic demarcation with all its wards, which has a specific name and is governed by a local government composed of a Legislative Power and an Executive Power." 21 L.P.R.A. § 4001(v) further provides that: "Autonomous municipality shall mean the municipality that achieves the greatest fiscal stability in compliance with the requirement of keeping a balanced budget, and which has an approved and updated Classification and Retribution Plan; a Territorial Distribution Plan, an Expansion Area and Zoning Plans with the corresponding delegations; and its accounting up to date and a consistently managed automated accounting system."
A municipality in Puerto Rico is considered a political subdivision for purposes of the Eleventh Amendment. Sanchez-Lopez, et al. v. Fuentes Pujols, et al., 247 F.Supp.2d 37, 42 (D.P.R.2002). "While these [municipalities] may receive part of its budget from the state, `such entities do not automatically (or even usually) come within the zone protection demarcated by the Eleventh Amendment'" (citations omitted). Sanchez-Lopez, 247 F.Supp.2d at 42, citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) ("cities and counties do not enjoy Eleventh Amendment immunity"). See also Fresenius Medical Care Cardiovascular Resources, Inc. v. Puerto Rico And The Caribbean Cardiovascular Center Corp., 322 F.3d 56, 61 (1st Cir.2003) ("Political subdivisions [as are the municipalities] are not entitled to Eleventh Amendment immunity"). Hence, the Municipality is not covered under the umbrella of the Eleventh Amendment, and remains subject to federal liability.
A review of the Complaint shows enough "to state a claim to relief that is plausible on its face" (quoting from Twombly) against Mayor Hernández in his official capacity. See Complaint, Docket No. 1, ¶¶ 13, 14, 16, and 18. Hence, the Court finds that there is a colorable action under § 1983 against Mayor Hernández in his official capacity, as well as against the Municipality, and none of the claims are covered by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. at 71, 109 S.Ct. 2304 (the official capacity officer is on the same ship as the government entity, in this case the Municipality is not immune and the Mayor either).
No Personal Liability Under ADA, ADEA and Title VII
The Court finds that there is no personal cause of action against Mayor Hernández under ADEA, ADA and Title VII. The Court agrees that the majority of the circuits that have addressed the issue of individual liability and have determined no personal liability of supervisors or agents of the employer.
Furthermore, most courts have held there is no federal cause of action against natural persons under Title VII, and other federal similarly protective discrimination causes. As this district has previously explained:
Although the First Circuit has yet to decide whether a Title VII plaintiff may maintain a suit against an individual in his personal capacity, most circuits have held that no personal liability can be attached to agents or supervisors under Title VII. See Serapion v. Martinez, 119 F.3d 982 (1st Cir.1997) (declining to address the issue of individual liability); but see Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7th Cir.1998) (citing Williams v. Banning, 72 F.3d 552 (7th Cir.1995), where no individual liability under Title VII was found); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998) (no individual liability under Title VII); Wathen v. General Elec. Co., 115 F.3d 400, 405-06 (6th Cir.1997) (same); Haynes v. Williams, 88 F.3d 898 (10th Cir.1996) (same); Dici v. Com. of Pa., 91 F.3d 542 (3rd Cir.1996) (same); Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir.1995) (same); Gary v. Long, 313 U.S.App. D.C. 403, 59 F.3d 1391 (D.C.Cir.1995) (same); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir.1995) (same); Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995) (same); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994) (same); Miller v. Maxwell's International, Inc., 991 F.2d 583 (9th Cir.1993) (same); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003) ("under Title VII individual supervisors are not subject to liability"). Like the majority of the circuit courts, this District has generally held that individual defendants are not liable under Title VII. See Canabal v. Aramark Corp., 48 F.Supp.2d 94, 95-98 (D.P.R.1999) (Pieras, J.); Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206 (D.P.R.1998); Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D.Puerto Rico 1997); Hernández v. Wangen, 938 F.Supp. 1052 (D.Puerto Rico 1996); Anonymous v. Legal Services Corporation, 932 F.Supp. 49, 50-51 (D.Puerto Rico 1996).
The Court is compelled by the reasoning of previous decisions within this District. Title VII's statutory structure suggests that Congress did not intend to impose individual liability over supervisors or agents of employer. Padilla Cintron v. Rossello Gonzalez, 247 F.Supp.2d 48 (D.P.R.2003). See generally the well developed and persuasive analysis of District Judge Laffitte in Flamand v. American International Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994). See also Sanchez Ramos v. Puerto Rico Police Department, et al., 392 F.Supp.2d 167, 179, n. 6 (D.P.R.2005).
In Del Pilar Salgado v. Abbott Laboratories, 520 F.Supp.2d 279 (D.P.R.2007), this Court held:
Basically the definition of employer was intended for the employer not to allege that the liability belonged to the employee causing the discrimination thereby liberating the employer from liability. Furthermore, not only is the employee not covered in the definition, the definition excludes small corporations in terms of number of employees (less than 15 employees); yet would ironically include individual employees. Further, there is absolutely no legislative history to include individual employees as employers. Finally, to include an individual employee vs. an individual, congress would need to find a Constitutional reason to justify Congressional Constitutional authority to justify a law authorizing employee vs. employee liability under United States v. Lopez, 514 U.S. 549, 552-568, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). There is absolutely nothing in the law justifying the employee vs. employee discrimination claim and if there is none, the Court should not invade legislative authority.(The last analysis was provided by this Court).
A § 1983 claim is a claim of civil rights based on a violation to the United States Constitution or an underlying violation of a federal statute. Since there is no violation of a federal claim under ADEA, ADA and Title VII, as to Mayor Hernández in his personal capacity, therefore, there is equally also no claim under § 1983.
All Causes of Actions are Time Barred v. Constructive Discharge
A review of ¶ 12 of the Complaint (Docket No. 1) shows that Cosme was on medical leave from August 10, 2006 to January 12, 2007. Plaintiff asked for sick leave without pay instead she was transferred from Coamo to Juana Diaz, but when she reported to work in Juana Díaz someone else was "doing her assigned duties." See Complaint, Docket No. 1, ¶ 15. This fact triggered Cosme's "forced" resignation. See Complaint, Docket No. 1, ¶ 16. Thereafter, Cosme was "summoned" by Mayor Hernández on January 10, 2007 to inquire about her resignation. When Cosme explained that her request for one year leave without pay was not approved by the Office of Personnel of the Municipality, the Mayor's reaction was that "he will take care of the approval of the one-year leave without pay." See Complaint, Docket No. 1, ¶ 16. However, "the one-year leave without pay was never granted." See Complaint, Docket No. 1, ¶ 16.
Based upon the above factual allegations stated in the Complaint, taken as true, it is plausible to infer that Cosme requested the one year leave without pay on January 10, 2007, but was "never granted." Hence, Cosme's constructive discharge became effective on January 12, 2007. See Complaint, Docket No. 1, ¶¶ 11 and 16, as she allegedly worked with the Municipality's Head Start Program from "September 12, 2003 until January 12, 2007." See Complaint, Docket No. 1, ¶ 11. The facts, as stated in the Complaint, also show that Cosme filed a complaint with the EEOC on April 9, 2007, that is, within the statutory period of 180 days, and the Notice of Right to Sue Letter was issued by the EEOC on July 9, 2007. See Complaint, Docket No. 1, ¶ 19. The record of the Court shows that the instant complaint was filed on October 4, 2007. Hence, the instant action, considering the facts proffered in the complaint, is not time barred, as it was timely filed, that is, within 90 days from the issuance of the EEOC Notice of Right to Sue Letter. Further, substantially, the one year statutory claim for a civil rights violation under § 1983 using an analogous state claim is one year. See Ruiz-Sulsona v. University of Puerto Rico, 334 F.3d 157, 160 (1st Cir.2003); Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41-41 (1st Cir.1990); Rivera Sanchez v. Autoridad de Energia Electrica, 360 F.Supp.2d 302, 307 (D.P.R.2005).
In the instant case, the claim is obviously not barred based on the date plaintiff was officially informed that her one year leave due to medical incapacity was denied, that is, on or about January 10, 2007. See Complaint, Docket No. 1, ¶¶ 15 and 16. Ruiz-Sulsona v. University of Puerto Rico, 334 F.3d at 160 ("The most analogous statute of limitations period of a § 1983 claim is the one for personal injury actions, which in Puerto Rico is one year"). The instant action ensued on October 4, 2007.
Conclusion
For the reasons stated above, this Court finds that there is no plain error in the Magistrate Judge's Report and Recommendation (Docket No. 24), hence, the Report and Recommendation is hereby adopted in toto, as to plaintiffs. The Court has reviewed de novo the objections raised by defendants, Municipality and Mayor Hernández. For the reasons set forth above, the objections are denied, as the claims against Mayor Hernández in his personal capacity under ADA, ADEA and Title VII are dismissed, for the claims are not covered under the Eleventh Amendment; the claims under 42 U.S.C. § 1983 against Mayor Hernández and pendent state claims in his official capacity are also denied, as the Municipality nor the Mayor are covered under the umbrella of the Eleventh Amendment; the action against the Municipality under § 1983 stands, as the Municipality is not covered under the Eleventh Amendment. The Magistrate Judge's recommendations are adopted in toto (Docket No. 24), albeit on alternate grounds.
IT IS SO ORDERED.
NOTES
[1] The Court notes that plaintiff was hired at around age 64-65 for ADEA claim purposes.
[2] For easy reference, the Court includes ¶¶ 11 through 16 and 19 of the Complaint:
"11. Plaintiff Higinia Cosme-Pérez is sixty night (69) years old. Plaintiff Higinia Cosme-Perez was an employee of co-defendant Municipality of Juana Díaz under the Head Start Program as food specialist/cook. She began to work with co-defendant Municipality of Juana Diaz since September 12, 2003 until January 12, 2007. Plaintiff's work evaluations and personnel record reflected an excellent and hard working employee. She worked over eight (8) hours daily, over five (5) days per week, most of the overtime was never paid.
12. A during 2006 plaintiff Higinia Cosme-Perez was suffering a temporally incapacitating health condition that required medical treatment including surgery. Anytime that plaintiff had to be absent she produced medical certificate and notify in advanced in accordance with regulation. Plaintiff was in medical leave from August 10, 2006 to January 12, 2007.
13. Co-defendant Ramón Hernández-Torres several time addressed plaintiff Higinia Cosme-Pérez telling her "voy a llamar al seguro social para que investiguen ya que estas recibiendo los beneficios y eso es fraude" (I will call the Social Security Administration and ask for a fraud investigation because you are receiving benefits). Co-defendant Hernández-Torres made this statement directly to plaintiff Higinia Cosme-Pérez. The also made the statement to plaintiff children. Co-defendant Hernández-Torres made the statement in the presence of third parties.
14. Many time defendant Hernández-Torres told plaintiff: "ya to estás bastante mayor" (You are too old). Defendant Hernández-Torres constantly and publicly made the statement: "yo lo que necesito es gente joven ..." (I need young people ...). Co-defendant Hernández-Torres meant that he will hired young people as Municipality of Juana Díaz employees and replace the old ones.
15. Due to constant harassment, discrimination, and threat plaintiff decided to [sic] sick leave without pay. She requested the leave to Mrs. Eva Cintrón (Director of Personnel) and to Mrs. Elsa Martínez (Food Supervisor and Plaintiff's Supervisor). Mrs. Martínez recommended plaintiff to resign because her children were grown-up. She was transferred from Coamo to Juana Díaz but when she reported to Juana Diaz there was someone else doing her assigned duties.
16. Plaintiff Higinia Cosme-Pérez felt forced to resign due to the constant harassment, discrimination and threat. She made clear her intentions and requested one-year leave without paid when she represented her resignation. She was summons to defendant Hernández-Torres offices on January 10, 2007. He asked her why she wants to resign. Plaintiff answered him that she asked for one-year leave without pay was not approved by the Municipality of Juana Diaz, Office of Personnel. Defendant Hernández-Torres told plaintiff not to worry that he already told Carlitos (Carlos Colón, defendant's special aid) and told her to see Carlitos. Plaintiff went to Carlos Colón's office where he told her that the Mayor has explained her request and he will take care of the approval of the one year leave without pay. The one-year leave without pay was never granted.
19. Plaintiff filed a complaint in the U.S. Equal Employment Opportunity Commission (EEOC) on April 9, 2007. Notice of Right to Sue was issued on July 9, 2007."
[3] All claims against officials in their personal capacity and/or entities that are not an arm of the State, cannot be dismissed since they are the subject covered under a § 1983 claim.
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172 F.3d 882
U.S.v.Dorcelie*
NO. 98-4709
United States Court of Appeals,Eleventh Circuit.
February 11, 1999
1
Appeal From: S.D.Fla. , No.97-00839-CR-CCA
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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238 F.Supp.2d 284 (2003)
Alberto GUTMAN, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.
No. CIV.A.02-0872 RMU.
United States District Court, District of Columbia.
January 7, 2003.
*285 *286 *287 Alberto Gutman, Miami, FL, Pro se plaintiff.
Robert Leidenheimer, Jr., Asst. U.S. Atty., Washington, DC, for defendant.
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The Freedom of Information Act ("FOIA"), as amended, 5 U.S.C. § 552, provides the public the right to access federal agency records, except when records are protected from public disclosure. The goal of achieving an informed citizenry through disclosure of agency records is counterpoised against other vital societal aims opposing disclosure. Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Accordingly, this court weighs in the balance what the public needs to know and what the government need not disclose.
Alberto Gutman ("the plaintiff") brings this FOIA action against the Department *288 of Justice ("the defendant"). After being convicted for conspiracy to commit Medicare fraud, the plaintiff submitted a FOIA request to the defendant seeking disclosure of all documents pertaining to the plaintiff, and specifically any documents that make the plaintiff the subject of a law-enforcement inquiry or investigation. The defendant now moves for summary judgment on all the requested records withheld or redacted pursuant to the privilege and confidentiality protections of FOIA Exemptions 5 and 7(C). Upon consideration of the parties' submissions, the relevant law and the record of this case, the court grants the defendant's motion for summary judgment.
II. BACKGROUND
The plaintiff is a former Florida State senator who pled guilty to conspiracy to commit Medicare fraud and was sentenced to a 60-month term of imprisonment.[1] Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 1. While incarcerated, the plaintiff submitted a FOIA request to four of the defendant's divisions, including the Executive Office for United States Attorneys ("EOUSA") (collectively, "the divisions"). Compl. ¶ 2. The plaintiff requested copies of materials that either mention the plaintiff or subject him to government inquiry or investigation. Id.
The defendant's Office of Information and Privacy ("OIP") processed the plaintiff's FOIA request. Id. ¶ 4. OIP is responsible for searching for and reviewing records within the defendant's senior leadership divisions, which include the divisions to which the plaintiff submitted his FOIA request. Def.'s Mot. at 2. OIP searched for records and uncovered three documents, totaling eleven pages, relating to the plaintiff's FOIA request. Compl. ¶ 4. After reviewing the documents, OIP determined that because the documents originated in EOUSA, and in accordance with Department of Justice regulations, 28 C.F.R. § 16.4(c)(2), referral of the documents to EOUSA for processing was necessary. Def.'s Mot. Ex. B ¶ 6. After processing all three documents, EOUSA released in part, released in full, or withheld in full various pages of the three documents. Id. at 2, Ex. B.
The first document released by the defendant is a revised six-page memorandum dated January 9, 1997 that concerns the "un-recusal" of the United States Attorney's Office for the Southern District of Florida from the plaintiff's criminal investigation and prosecution. Id.; Pl.'s Opp'n to Def.'s Mot.. ("Pl.'s Opp'n") at 7. Pursuant to Exemption 5, the defendant withheld in part one page and withheld in full three pages of this document to protect its deliberative process. Def.'s Mot. at 2.
The second document comprises two pages and is an "urgent" report advising the Attorney General that the United States had appealed a magistrate judge's bond determination releasing the plaintiff. Id.; Pl.'s Opp'n at 5-8. Pursuant to Exemptions 5 and 7(C), the defendant withheld in part one page of this document. Id. Specifically, the defendant redacted certain portions pursuant to the attorney work-product privilege under Exemption 5. Def.'s Mot. at 3; Pl.'s Opp'n at 7-8. The defendant also redacted home telephone and pager numbers under Exemption 7 to protect the personal privacy of certain government attorneys.[2] Def.'s Mot. at 2-3; Pl.'s Opp'n at 5-6.
*289 The third document is a three-page "urgent" report advising the Attorney General that the plaintiff was sentenced to 60 months in prison. Def.'s Mot. at 3; Pl.'s Opp'n at 5-6. The defendant redacted home telephone and pager numbers under Exemption 7(C) from one page of this document to protect the personal privacy of certain government attorneys.[3]Id.
On May 6, 2002, the plaintiff filed his complaint requesting that the court order the defendant to release the three documents in their entirety. Compl. at 1-3. Subsequently, on August 16, 2002, the defendant filed a motion for summary judgment. In his opposition, the plaintiff contends for the first time that the defendant failed to release three additional documents, namely: (1) a three-page memorandum dated December 24, 1996 from EOUSA to the Attorney General concerning the un-recusal of the United States Attorney's Office for the Southern District of Florida from the plaintiff's criminal investigation and prosecution ("first additional document"); (2) a one-page note from Associate Deputy Attorney General David Margolis ("second additional document"); and (3) the third page of the previously-mentioned January 1997 memorandum, reflecting Mr. Margolis' approval of the un-recusal on January 11, 1997 ("third additional document"). Pl.'s Opp'n Ex. A ¶ 4; Def.'s Reply Ex. 1 ¶ 14.
On October 28, 2002, the defendant filed its reply, noting that it had processed these three additional documents for withholding or release to the plaintiff and attaching them as exhibits thereto. Def.'s Reply Exs. 1, 3-4. With regard to the first additional document, as it did with the first document (i.e., the January 1997 memorandum), the defendant withheld part of one page and all of two pages of the first additional document pursuant to Exemption 5. Id. at 4-6. The defendant released the second additional document in full. Id. With regard to the third additional document, the defendant withheld it in part pursuant to Exemption 5. Id.
Because the defendant filed these additional documents with its reply, the court permitted the plaintiff to file a sur-reply in response to the additional documents but instructed the plaintiff to respond only to those new points raised in the defendant's reply brief. Order dated Nov. 13, 2002. The plaintiff filed a sur-reply on November 25, 2002.[4] He did not, however, address the additional documents. Instead, he expounded on previous arguments raised in his opposition.[5] Pl.'s Sur-reply 3-5.
The court now analyzes the legal arguments in favor of and opposing summary judgment. Specifically, the court addresses *290 whether the defendant performed its search for the plaintiff's requested information in bad faith, whether the defendant appropriately claimed Exemption 5 deliberative-process and attorney work-product privileges to withhold certain information from the plaintiff, and whether the defendant could have segregated the exempt information from the non-exempt information of each withheld document.
III. ANALYSIS
A. Legal Standard for Summary Judgment in a FOIA Case
Summary judgment is appropriate when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973). FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C.Cir.2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). An agency may meet this burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the exemption's relevance. Summers, 140 F.3d at 1080; Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973) (fashioning what is now commonly referred to as a "Vaughn index").
The court may grant summary judgment to an agency on the basis of its affidavits if they:
"[(a)] describe the documents and the justifications for nondisclosure with reasonably specific detail, [(b)] demonstrate that the information withheld logically falls within the claimed exemption, and [(c)] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Services, Inc. v. Sec. & Exch. Comm'n, 926 *291 F.2d 1197, 1200 (D.C.Cir.1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id.
B. The Court Determines That the Defendant's Search for Documents Was Not Done in Bad Faith
While the plaintiff concedes that the defendant conducted a reasonable search in uncovering documents relevant to his request, the plaintiff contends that the defendant's belated release of the three additional documents demonstrates the defendant's bad faith, requiring a denial of the defendant's summary-judgment motion. Pl.'s Opp'n at 5. The defendant, however, argues that its release of the additional documents initially withheld from the plaintiff is not evidence of bad faith. Def.'s Reply at 2. Furthermore, the defendant maintains that as a result of its initial oversight, it conducted additional searches going above and beyond what the law requires of the agency. Def.'s Reply at 2-3 (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (stating that an agency is required only to undertake a search that is "reasonably calculated to uncover all relevant documents")).
An agency must search for documents in good faith, using methods that are reasonably expected to produce the requested information. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990); Campbell v. Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). The principal issue is not whether the agency's search uncovered responsive documents, but whether the search was reasonable. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (Sporkin, J.); see also Fitzgibbon v. Secret Service, 747 F.Supp. 51, 54 (D.D.C.1990) (Greene, J.); Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986). The agency need not search every record in the system or conduct a perfect search. SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 952, 956. To demonstrate reasonableness, the agency must set forth sufficient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Weisberg, 705 F.2d at 1351; Oglesby, 920 F.2d at 68.
Moreover, under settled law of this circuit, the subsequent disclosure of documents initially withheld does not qualify as evidence of "bad faith." Public Citizen v. Dep't of State, 276 F.3d 634, 645 (D.C.Cir. 2002) (declining to find subsequent disclosure as evidence of bad faith because effectively penalizing an agency for voluntarily declassifying documents would work mischief by creating an incentive against disclosure).
Here, the defendant's supporting affidavits demonstrate that its search was adequate and conducted in good faith using methods reasonably expected to produce the plaintiff's requested information. Oglesby, 920 F.2d at 68; Campbell, 164 F.3d at 27. The defendant performed several searches using the search terms "Gutman" and "recusal" in three different data-bases to capture all documents from 1982 to the present. Def.'s Reply Ex. 1. Moreover, as a cautionary step, the defendant conducted additional, expanded searches. Def.'s Reply at 4-6. Finally, the defendant's unearthing of the documents previously withheld from the plaintiff does not constitute bad faith under this circuit's case law. Id.; Public Citizen, 276 F.3d at 645.
Accordingly, the court believes that the defendant conducted adequate searches reasonably expected to produce information responsive to the plaintiff's FOIA request. Weisberg, 705 F.2d at 1351; Oglesby, 920 F.2d at 68. The court therefore is *292 not persuaded by the plaintiff's bad-faith accusations and concludes that the defendant did not act in bad faith. Id.; Public Citizen, 276 F.3d at 645.
C. The Court Concludes That the Defendant Properly Withheld Information Pursuant to Exemption 5
Exemption 5 of FOIA protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The Supreme Court and the D.C. Circuit both have construed Exemption 5 to "exempt those documents, and only those documents, normally privileged in the civil discovery context." Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987). In other words, Exemption 5 incorporates "all civil discovery rules." Martin, 819 F.2d at 1185. Thus, all discovery privileges that exist in civil discovery apply to Exemption 5. United States v. Weber Aircraft Corp., 465 U.S. 792, 800, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). The three traditional privileges that courts have incorporated into Exemption 5 are the deliberative-process privilege, the attorney work-product privilege and the attorney-client privilege. Sears, 421 U.S. at 149, 95 S.Ct. 1504. At issue in this case are the deliberative-process and the attorney work-product privileges invoked by the defendant.
1. Deliberative-Process Privilege
The general purpose of the deliberative-process privilege is to "prevent injury to the quality of agency decisions." Sears, 421 U.S. at 151, 95 S.Ct. 1504. The three specific policy objectives underlying this privilege are: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationale that were not in fact ultimately the grounds for an agency's action. Russell v. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980); Jordan v. Dep't of Justice, 591 F.2d 753, 772-73 (D.C.Cir.1978) (en banc). In essence, the privilege protects the "decision making processes of government agencies and focus[es] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150, 95 S.Ct. 1504 (internal quotations omitted). Thus, the deliberative-process ensures that government agencies are not "forced to operate in a fishbowl." Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C.Cir.1992).
To invoke the deliberate-process privilege, the defendant must establish two prerequisites. Id. First, the communication must be "predecisional;" in other words, it must be "antecedent to the adoption of an agency policy." Jordan, 591 F.2d at 774; Access Reports v. Dep't of Justice, 926 F.2d 1192, 1194 (D.C.Cir.1991). In determining whether a document is predecisional, an agency does not necessarily have to point specifically to an agency's final decision, but need only establish "what deliberative-process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868. In other words, as long as a document is generated as part of such a continuing process of agency decision-making, the deliberative-process protections of Exemption *293 5 may be applicable. Id.; Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C.Cir.2002) (holding that a document is predecisional if it was prepared to assist an agency in arriving at a decision, rather than supporting a decision already made).
Second, the communication must be deliberative; it must be "a direct part of the deliberative-process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn, 484 F.2d at 823-24. The critical factor in determining whether the material is deliberative in nature "is whether disclosure of the information would `discourage candid discussion within the agency.'" Access Reports, 926 F.2d at 1195 (quoting Dudman Communications Corp. v. Dep't of Air Force, 815 F.2d 1565, 1567-68 (D.C.Cir.1987)).
To demonstrate the predecisional and deliberative nature of the withheld information, the defendant provided a Vaughn index describing each withheld document and explaining each exemption's relevance. Summers, 140 F.3d at 1080. The defendant invokes the protection afforded by the deliberative-process privilege to account for the withheld portions of the fist document (i.e., the January 1997 memorandum), the first additional document (i.e., the December 1996 memorandum), and the third additional document (i.e., the third page of the January 1997 memorandum). Def.'s Vaughn Index at 1; Def.'s Reply Ex. 1. ¶ 12.
After perusing the defendant's supporting affidavits and Vaughn index, the court is persuaded that the withheld portions of all three documents comprise predecisional and deliberative information. Def.'s Mot. Ex. A. ¶ 18; Def.'s Vaughn Index at 1; Def.'s Reply Ex. 1. ¶¶ 14-17.
The defendant meets the first prerequisite for claiming the deliberative-process privilege with respect to all three documents by demonstrating that the documents are predecisional. As in National Association of Home Builders, the defendant here prepared all three documents to assist the Deputy Attorney General's decision regarding the government's un-recusal from the plaintiff's criminal investigation. Def.'s Mot at 2, 11-12. On January 11, 1997, the Deputy Attorney General made a final decision on this matter by approving the January 1997 memorandum. Pl.'s Opp'n Ex. A ¶ 4; Def.'s Reply Ex. 1. ¶ 14. As such, all three documents are predecisional because the defendant generated them as part of the continuing decision-making process. Coastal States, 617 F.2d at 868.
The defendant also satisfies the second prerequisite for the deliberative-process privilege by establishing that all three documents were part of a deliberative process because they contain recommendations and requests for approval of proposed actions. Coastal States, 617 F.2d at 866 (holding that the deliberative-process privilege covers recommendations, proposals, suggestions and other subjective documents that reflect the personal opinions of the writer rather than the policy of the agency). All three documents recommend that the Deputy Attorney General approve the government's un-recusal from the plaintiff's criminal investigation. Def.'s Reply at 1. In essence, all three documents reflect the give-and-take of the consultative process. Petroleum, 976 F.2d at 1434. In accord with this line of reasoning, the court recognizes that all three documents represent precisely the kind of information Exemption 5 was designed to protect, and that its disclosure could potentially "stifle honest and frank communication" within the defendant-agency. Coastal States, 617 F.2d at 866. Therefore, the court grants *294 the defendant summary judgment as to the three documents for which the defendant invokes the deliberative-process privilege. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
2. Attorney Work-Product Privilege
The second privilege under Exemption 5 is the attorney work-product privilege, which protects documents and other memoranda prepared by an attorney in contemplation of litigation. FED. R. CIV. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 509-10, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The privilege encompasses "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Id. The purpose of the privilege is to protect the adversarial trial process by insulating the attorney's preparation from scrutiny. Jordan, 591 F.2d at 775. Accordingly, this privilege ordinarily does not attach until at least "some articulable claim, likely to lead to litigation," has arisen. Coastal States, 617 F.2d at 865. The D.C. Circuit has explained that this privilege "extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated." Schiller v. Nat'l Labor Relations Bd., 964 F.2d 1205, 1208 (D.C.Cir.1992). Moreover, the attorney work-product privilege protects both factual and deliberative materials. Martin, 819 F.2d at 1189.
The defendant asserts the attorney work-product privilege as grounds for withholding portions of the second document. Def.'s Mot. at 11-12. As noted, the second document is an urgent report advising the Attorney General that the government had appealed the magistrate judge's bond determination releasing the plaintiff. Def.'s Mot. at 2, 11-12; Pl.'s Opp'n at 5-8. This document contains the defendant's reasoning in support of an appeal of the bond determination. Vaughn Index at 2. The plaintiff argues that the defendant improperly invokes the attorney work-product privilege because pending litigation no longer exists as to the plaintiff's criminal offense, and because the plaintiff has already been convicted and is serving a term of incarceration. Pl.'s Opp'n at 7.
In Federal Trade Commission v. Grolier, the Supreme Court explicitly rejected contentions similar to those made by the plaintiff here by observing that under Exemption 5, attorney work-product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared. Fed. Trade Comm'n v. Grolier Inc., 462 U.S. 19, 28, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). The Court reasoned that the attorney work-product privilege may be invoked regardless of whether the plaintiff is serving a term of incarceration. Id. On this point, Guideline Number 15 of the Special Masters' Guidelines for the Resolution of Privilege Claims provides additional guidance by defining the term "materials prepared in anticipation of litigation or for trial" as including "a proceeding in a court or administrative tribunal in which the parties have the right to cross-examine witnesses or to subject an opposing party's presentation of proof to equivalent disputation." United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 604 (D.D.C.1979) (Greene, J.). Further, "in anticipation" means any time after initiation of the proceeding. Id. The privilege applies to past litigation as well. Id. (citations omitted).
Given the sweeping definition of litigation, this case easily falls within its contours. Indeed, the second document clearly is prepared in anticipation of litigation because it provides information justifying why the defendant sought review of the Magistrate Judge's bond determination. Def.'s Vaughn Index at 2. Seeking review *295 of a court's decision falls within the definition of litigation. Am. Tel. & Tel. Co., 86 F.R.D. at 627. Accordingly, the court concludes that the defendant properly withheld portions of the second document in accordance with the attorney work-product privilege and therefore grants the defendant summary judgment as to the second document as well. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
D. The Court Determines That the Defendant Has Disclosed All Reasonably Segregable Material
The defendant maintains that it properly evaluated the segregability of all documents and released as much non-exempt information as possible. Def.'s Mot. at 13. The plaintiff, however, contends that the defendant failed to segregate the exempt information from the non-exempt information of each document withheld either in full or in part pursuant to Exemptions 5 and 7(C).[6] Pl.'s Opp'n at 8-9. Specifically, the plaintiff claims that the defendant's supporting affidavit of EOUSA attorney James S. Carroll III contains insufficient, conclusory statements on the segregability of the documents. Id.
FOIA mandates that "any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). By 1977, it had "long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 260 (D.C.Cir. 1977). The D.C. Circuit has made clear that "the `segregability' requirement applies to all documents and all exemptions in the FOIA." Center for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 21 (D.C.Cir.1984). In fact, the segregability requirement is so essential to a FOIA inquiry that "it is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof." Schiller, 964 F.2d at 1210 (D.C.Cir.1992) (quoting Church of Scientology v. Dep't of Army, 611 F.2d 738, 744 (9th Cir.1979)).
To demonstrate that the withholding agency has disclosed all reasonably segregable material, "the withholding agency must supply a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." King v. Dep't of Justice, 830 F.2d 210, 224 (D.C.Cir.1987) (internal quotations omitted). The agency, however, is not required to provide so much detail that the exempt material effectively would be disclosed. Mead Data, 566 F.2d at 261. Furthermore, conclusory language in agency declarations that do not provide a specific basis for segregability findings by a district court may be found inadequate. Animal Legal Def. Fund, Inc. v. Dep't of Air Force, 44 F.Supp.2d 295, 301 (D.D.C.1999) (Kollar-Kotelly, J.). The D.C. Circuit, though expressly disclaiming any attempt to provide "an encompassing definition of `conclusory assertions,'" noted that "it is enough that where no factual support is provided for an *296 essential element of the claimed privilege or shield, the label `conclusory' is surely apt." Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987).
In a recent D.C. Circuit case that presents circumstances parallel to those in the instant case, a plaintiff sought the release of documents pertaining to his criminal conviction withheld by EOUSA. Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 773 (D.C.Cir.2002). The D.C. Circuit held that EOUSA satisfied the segregability requirement by providing the plaintiff with a Vaughn index, a supplemental affidavit adequately describing each withheld document, the exemption under which each document was withheld, and an explanation for the exemption's relevance. Johnson, 310 F.3d at 776. The supplemental affidavit in that case explained that the affiant-attorney personally conducted a line-by-line review of each document withheld in full and determined that "no documents contained releasable information which could be reasonably segregated from the nonreleasable portions." Id. In other words, the court found that the combination of the Vaughn index and the affidavit was sufficient to fulfill EOUSA's obligation to show with "`reasonable specificity'" why a document cannot be further segregated. Id. (citing Armstrong v. Executive Office of the President, 97 F.3d 575, 578-79 (D.C.Cir.1996)).
As in Johnson, the plaintiff in the present case submitted a FOIA request to EOUSA, seeking the release of all documents pertaining to his criminal conviction. Compl. ¶ 2 and Def.'s Mot. at 1-2. Subsequently, the defendant provided a Vaughn index and affidavits, describing all documents it had located pursuant to the plaintiff's FOIA request. Def.'s Vaughn Index at 1-3; Def.'s Mot. Exs. A, B; Def.'s Reply Exs. 1-2. As was the case in Johnson, the defendant's Vaughn index here details each document's issue date, subject matter, authorship, the intended recipient, the exemption under which any pages are withheld, and an explanation as to why the exemption applies to the document. Def.'s Vaughn Index at 1-3. Indeed, the defendant does not merely parrot FOIA's statutory language, but rather incorporates facts of the withheld documents into their description in both the defendant's Vaughn index and declarations. Animal Legal Def. Fund, 44 F.Supp.2d at 301 (holding that mere parroting of FOIA's statutory language without adding factual material is insufficient for segregability purposes); Senate of Puerto Rico, 823 F.2d at 585.
Similar to the EOUSA affidavit in Johnson, the defendant herein provides two affidavits in response to the plaintiff's FOIA request that adequately support non-segregability. Def.'s Mot. Exs. A, B; Def.'s Reply Exs. 1-2. The first affidavit avows that Mr. Carroll evaluated each page of every document for segregability and, after making the necessary deletions or excisions, released them accordingly. Def.'s Mot. Ex. A ¶ 18; Def.'s Reply Ex. 2 ¶ 7. Likewise, the second affidavit by OIP Deputy Director Melanie Ann Pustay states that OIP released all reasonably segregable, nonexempt information contained in the requested documents. Def.'s Reply Ex. 1 ¶ 18. Both affidavits describe each document reviewed, the exemptions on which the defendant based its withholdings, and the reasons for which the defendant relies on the exemptions. Def.'s Mot. Exs. A, B.; Def.'s Reply Exs. 1-2. In line with the D.C. Circuit's decision in Johnson, the court similarly concludes that here, the defendant's Vaughn index and supportive declarations are sufficient to fulfill the agency's obligation to provide "detailed justification" as to why the agency cannot further segregate the documents. Johnson, 310 F.3d at 776 (quoting *297 Mead Data, 566 F.2d at 261). Accordingly, the court is satisfied that the defendant has disclosed all reasonably segregable material. King, 830 F.2d at 224.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this ____ day of January 2003.
ORDER
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For the reasons stated in this court's Memorandum Opinion separately and contemporaneously issued, it is this _____ day of January 2003,
ORDERED that the defendant's motion for summary judgment is GRANTED.
SO ORDERED.
NOTES
[1] The submissions do not clarify which court sentenced the plaintiff, although it appears to be a federal district court located in the State of Florida.
[2] Since the defendant redacted only the home telephone and pager numbers of the government attorneys involved, the plaintiff concedes that the defendant's application of Exemption 7(C) is proper. Pl.'s Opp'n at 6; Def.'s Mot. at 2-3.
[3] As with the second document, the plaintiff concedes that the application of Exemption 7(C) to the third document is proper because the defendant redacted only the home telephone or pager numbers of the government attorneys involved. Pl.'s Opp'n at 6; Def.'s Mot. at 2-3.
[4] Although the plaintiff filed his sur-reply after the deadline set by the court, and without requesting leave to do so, the court accepts the plaintiff's sur-reply. See generally Sparrow v. United Air Lines Inc., 216 F.3d 1111 (D.C.Cir.2000) (endorsing the view that courts should relax procedural requirements for pro se litigants). The court notes that allowing the plaintiff to late-file the sur-reply does not prejudice the defendant.
[5] Presumably as an added bonus, the plaintiff's sur-reply contains an informative back-ground section describing the plaintiff's political history as a Florida state senator and representative. Pl.'s Sur-reply at 1-3. The information provided in the sur-reply's background section appears to be irrelevant to the case and issues at hand.
[6] The plaintiff asserts that the names of the government attorneys and other Department of Justice personnel are segregable and should be disclosed under Exemption 7(C). Pl.'s Opp'n at 8-9. The defendant, however, maintains that it appropriately disclosed all those names and only withheld the home telephone and pager numbers pursuant to Exemption 7(C). Because the defendant satisfied the plaintiff's request, the court will not address segregability relative to the documents withheld in part or in full under Exemption 7(C).
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14 F.3d 49
Simpson (George W.)v.U.S.
NO. 93-3015
United States Court of Appeals,Third Circuit.
Nov 10, 1993
Appeal From: W.D.Pa.,
Smith, J.
1
AFFIRMED.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15836 ELEVENTH CIRCUIT
JUNE 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00149-CR-CAP-3-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 10, 2009)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Mary Erickson, appointed counsel for Edward Lopez in this direct criminal
appeal, has moved to withdraw from further representation of the appellant and
filed a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire
record reveals no arguable issues of merit, counsel’s motion to withdraw is
GRANTED, and Lopez’s conviction and sentence are AFFIRMED.
2
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
LEONARD SHELTON JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0036-96-2 CHIEF JUDGE NORMAN K. MOON
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White (Theodore Tondrowski;
Grennan & Tondrowski, on brief), for
appellant.
Marla G. Decker, Assistant Attorney General
(Richard Cullen, Attorney General; Steven A.
Witmer, Assistant Attorney General, on
brief), for appellee.
Leonard Shelton Jackson ("Jackson") was convicted of
possession of cocaine with an intent to distribute and
distribution of cocaine, both in violation of Code § 18.2-248.
Jackson contends that the cocaine on which his conviction rests
was illegally seized and, thus, the trial judge erred in
declining to suppress that evidence. Finding no error, we affirm
the convictions.
On May 9, 1995, police officers received a tip from an
informant who had previously provided the police with reliable
information. The informant identified Jackson by name, claimed
he was selling drugs, and predicted where he would be found and
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
the car he would be using. The officers drove to the location
identified by the informant and saw both Jackson and the car
identified by the informant. The officers saw Jackson and Nelson
Washington ("Washington") get into the car, with Washington
driving.
The officers checked the car's license plate number and
discovered that the plates were for a different car owned by
Washington. They also learned that Washington's license was
suspended. The officers stopped the car and told Washington that
his plates were wrong and his license had been suspended. They
also told him that they had been told that the car he was driving
was being used to transport drugs.
An officer asked Washington to consent to a search, and he
consented. The officer discovered cocaine on Washington. The
officer then told Jackson why they stopped the car and that they
had information that Jackson was transporting drugs. The officer
asked Jackson to consent to a search, and he consented. The
officer began searching Jackson, but when he reached to search
his pants leg, Jackson ran. The officers apprehended Jackson and
arrested him, discovering cocaine in his pants leg.
In reviewing a trial court's denial of a motion to suppress,
the appellant has the burden to show that, considering the
evidence in the light most favorable to the Commonwealth, the
ruling constituted reversible error. Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
(1980). "`Ultimate questions of reasonable suspicion and
- 2 -
probable cause to make a warrantless search' involve questions of
both law and fact and are reviewed de novo on appeal," McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)
(en banc) (quoting Ornelas v. United States, ___ U.S. ___, ___,
116 S. Ct. 1657, 1659 (1996)), but "we are bound by the trial
court's findings of historical fact unless `plainly wrong' or
without evidence to support them, and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers.'" Id. at 198, 487 S.E.2d at 261
(citing Ornelas, ___ U.S. at ___, 116 S. Ct. at 1663).
Although the initial search of Jackson was consensual, his
flight implied a withdrawal of consent. Once consent is
withdrawn, the Fourth Amendment is implicated and police are
required to have probable cause to search further. Camden v.
Commonwealth, 17 Va. App. 725, 727-28, 441 S.E.2d 38, 40 (1994);
see Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869,
870 (1992) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)).
After verifying the reliable informant's identification of
Jackson, his location, and the car he was using, the officers
searched Jackson's companion, Washington, and found cocaine.
Jackson then consented to a search. When Jackson fled, he
impliedly withdrew consent. Nevertheless, the officers'
verification of the informant's information, their discovery of
Washington's possession of cocaine, and, most importantly,
Jackson's flight, together gave the officers probable cause to
search Jackson. Compare McGee, 25 Va. App. at 203, 487 S.E.2d at
- 3 -
264 (holding that police lacked probable cause to search because
informant was an anonymous tipster, no evidence established the
reliability of the tipster, and the police did not observe any
suspicious conduct), with James v. Commonwealth, 8 Va. App. 98,
101-02, 379 S.E.2d 378, 380 (1989) (noting that flight helps
support a finding of probable cause), and Quigley v.
Commonwealth, 14 Va. App. 28, 33 nn.5-6, 414 S.E.2d 851, 854
nn.5-6 (1992) (noting that fight alone may constitute
"`"reasonable suspicion" when made in the face of lawful
authority'" and can "`color[] conduct which hitherto had appeared
innocent'") (quoting United States v. Lane, 909 F.2d 895, 899
(6th Cir. 1990), cert. denied, 498 U.S. 1093 (1991)).
For the foregoing reasons, we affirm.
Affirmed.
- 4 -
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733 F.Supp. 791 (1990)
Fred CHALAWSKY, Plaintiff,
v.
SUN REFINING AND MARKETING COMPANY, INC., Defendant.
Civ. A. No. 89-114-JLL.
United States District Court, D. Delaware.
February 23, 1990.
*792 Roger A. Akin and Christopher J. Curtin of Sawyer & Akin, Wilmington, Del., for plaintiff.
Richard D. Allen and R. Judson Scaggs, Jr. of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant.
MEMORANDUM OPINION
LATCHUM, Senior District Judge.
This is an age discrimination case. Plaintiff, Fred Chalawsky ("Chalawsky"), contends that defendant, Sun Refining and Marketing Company, Inc. ("Sun"), discriminated against him when it refused to give him a job following an employee reorganization at the plant at which Chalawsky worked. Chalawsky alleges claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, the Fair Labor Standards Act, 29 U.S.C. § 216(b), and Delaware state law, 19 Del.C. § 711 et seq. Sun has moved for summary judgment on all claims. This Court has jurisdiction under 28 U.S.C. § 1331.
FACTS
Chalawsky was trained and educated in chemical engineering. (See Docket Item ["D.I."] 26 at A-1-A-3, Deposition of Fred Chalawsky ["FC Dep."] at 8-10.) He joined the SunOlin Chemical Company ("SunOlin") in March of 1967 as a process engineer in technical services. After approximately six months of service, in the fall of 1967, Chalawsky became a technical service superintendent, a position he held until December of 1968, when he was named area superintendent of his plant. In January of 1975, Chalawsky was transferred to become the area superintendent of another plant, an ethylene plant located in Claymont, Delaware. He held this position until his alleged involuntary termination in December of 1987, at which point Chalawsky was 56 years old.
Chalawsky's employer, SunOlin, was a joint venture between Sun and a company named Olin. (D.I. 23A, Exhibit 3, Deposition of John G. Harron ["JH Dep."] at 4.) Sun, a Pennsylvania corporation, bought out Olin's share in SunOlin on November 4, 1987, thereby obtaining sole ownership of the ethylene plant at which Chalawsky worked. (See id. at 15.) Sun's plan was to integrate the ethylene plant with a refinery it owned, in nearby Marcus Hook, Pennsylvania, in order to make the ethylene plant more efficient and improve Sun's position in the chemical industry. (See D.I. 23A, Exhibit 4, Deposition of Joseph Mazzei ["JM Dep."] at 20-21.) To achieve this integration, a decision was made to reduce the SunOlin employee force from 49 positions to 15. (See D.I. 23A, Exhibit 3, JH Dep. at 32.) Eventually, however, the 49 positions were only reduced to 23. (See id.) Chalawsky's area superintendent job was one of those eliminated.
On October 7, 1987, John G. Harron, president of SunOlin, sent a memorandum to all employees at the ethylene plant, including Chalawsky. (D.I. 26 at A-26.) The memorandum discussed the pending integration of SunOlin with Sun's Marcus Hook facility, and the staffing cuts that would result. Attached to the memorandum *793 were sheets describing the various job options available to SunOlin workers, including an involuntary termination plan. Chalawsky selected the option that consisted of consideration for another position within the Marcus Hook refinery. These preference sheets were used by SunOlin's management in making hiring recommendations to Sun.
Shortly after Sun bought out Olin, in early November of 1987, Chalawsky was called into Harron's office. He was informed he would be terminated on November 30, 1987, and would not be hired by the reorganized company. (D.I. 26 at A-34-A-35, FC Dep. at 48.) Harron gave him ten working days to submit a second preference sheet indicating one of the involuntary termination options. (Id.) On this second sheet, Chalawsky chose early retirement, but noted he still preferred to be employed. (See D.I. 26 at A-35.) Chalawsky also noted on the sheet that he believed he was qualified for five different positions in the reorganized company, two of which were still unfilled at that point. (Id.)
The five positions, for which Chalawsky stated he thought he was qualified, were: Operating Superintendent, Area Supervisor (two positions), and Operating Technical Specialist or "OTS" (two positions). (Id.; see also D.I. 23A, Exhibit 5, FC Dep. at 78.) The Operating Superintendent position was filled by Gerald O'Rourke, who was 49 years old. (D.I. 24, Affidavit of Gloria M. Rebori ["Rebori Aff."] at ¶ 2.) One of the Area Supervisor jobs was filled by Wayne Roser, 56 years old. (Id.) One of the OTS positions was filled by Robert Knorr, who was 33 years old. (Id.) The two slots that were left open when Chalawsky was terminated were an Area Supervisor job, later filled by 56 year-old Marshall Short, and an OTS position that was eventually filled by 30 year-old Curtis Zimmerman. (See D.I. 23A, Exhibit 5, FC Dep. at 2; D.I. 26 at 4.)
On January 18, 1988, Chalawsky filed age discrimination charges against Sun with the Delaware Department of Labor ("DDOL"). (See D.I. 23A, Exhibit 5, FC Dep. at Dx6.) Following a hearing in May of 1988 (Id. 122), the DDOL determined Chalawsky's charges of age discrimination could not be substantiated. (Id. at Dx7.) The EEOC also reviewed Chalawsky's charges and, in December of 1988, concluded the evidence gathered in the DDOL investigation did not establish any violation. (See D.I. 24, Exhibit A, Rebori Aff.)
Chalawsky instituted this suit on March 10, 1989. (D.I. 1.) Discovery has been completed. Sun moved for summary judgment on November 7, 1989. (D.I. 22.) The Court heard oral argument on the motion on January 12, 1990.
DISCUSSION
Summary judgment is appropriate only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the Court must "view the evidence in the light most favorable to the non-moving party ... and resolve any conflicts in his favor." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir.1988) (citations omitted). Summary judgment must be granted, however, if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
I. The ADEA Claim
The ADEA prohibits discrimination against any individual who is "at least 40 years of age," 29 U.S.C. § 631(a) (West Supp.1989), with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age...." Id. at § 623(a)(1). To recover under the ADEA, a plaintiff must "prove that age was a determinative factor in the defendant employer's decision ... The plaintiff need not prove that age was the employer's sole or exclusive consideration, but must prove that age made a difference in the decision." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987) (in banc) (citations omitted), cert. dismissed, *794 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).
Direct evidence of discriminatory motivation is not required, as the proverbial "smoking gun" is usually not found in employment discrimination cases. See id. A plaintiff can therefore establish his case by indirect proof that satisfies the McDonnell Douglas-Burdine allocation of burdens of production. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)); see also Bartek v. Urban Redevelopment Authority of Pittsburgh, 882 F.2d 739, 742 (3d Cir.1989) (noting that the McDonnell Douglas-Burdine allocation of burdens is still controlling).
That three-part allocation of burdens requires, first, that the plaintiff prove "by the preponderance of the evidence a prima facie case of discrimination." Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. If the plaintiff is able to make this prima facie showing, "the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Id. at 253, 101 S.Ct. at 1093 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). Lastly, if the defendant satisfies its burden, the plaintiff must then prove by a preponderance of the evidence that the defendant's legitimate reasons "were not its true reasons, but were a pretext for discrimination." Id. (citation omitted). The plaintiff, however, always retains "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against [him]...." Id. (citations omitted).
a. The Operating Superintendent and Two Area Supervisor Jobs
Sun argues that Chalawsky cannot even establish a prima facie case for three of the five positions he claims Sun should have offered him. These three positions are the Operating Superintendent and the two Area Supervisor slots.
Chalawsky has not offered any direct evidence of age discrimination. Without such evidence, an ADEA plaintiff can establish his prima facie case of discrimination
by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination.
Chipollini, 814 F.2d at 897 (citation omitted). Sun concedes for purposes of its summary judgment motion that Chalawsky has met the first three elements of a prima facie case. Sun argues, however, that Chalawsky cannot prove the fourth element because the individuals chosen to fill the three positions in question were not "sufficiently younger" than Chalawsky.
Chalawsky's answering brief (D.I. 26) does not address this argument. Nor does it offer any rationale for why this fourth element should be considered satisfied or inapplicable. More importantly, however, at oral argument counsel for Chalawsky conceded that a prima facie case could not be made as to two of the three positions Sun challenges. Accordingly, Sun is entitled, at the very least, to summary judgment with respect to Chalawsky's allegations that he was denied those two jobs because of his age. Cf. Fowle v. C & C Cola, 868 F.2d 59, 62 (3d Cir.1989) (ADEA defendant can prevail on summary judgment by showing plaintiff's prima facie case is deficient).
Chalawsky does not concede that he failed to make out a prima facie case with regard to the third position, one of the Area Supervisor slots. At oral argument, Chalawsky's counsel indicated that this position was still at issue because it was not filled at the time Chalawsky left Sun. (The position was eventually filled by someone who was 56 years old, the same age as Chalawsky.)
The point of the prima facie showing is to establish that the plaintiff was rejected "under circumstances which would give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. *795 at 1093 (footnote omitted); cf. EEOC v. Metal Service Co., 892 F.2d 341, 347 (3d Cir.1990) (McDonnell Douglas test should not be viewed as rigid formula because its significance is that it helps to indicate when sufficient evidence has been offered to create an inference of discrimination). Therefore, it seems unlikely that a plaintiff could make out a prima facie ADEA case just by showing that there were jobs left unfilled when he was rejected. But even if such a showing, perhaps coupled with evidence that numerous individuals in the protected class were rejected for the same position, would be sufficient to make out the fourth element of a prima facie case where a position goes unfilled, here the position was filled. Moreover, since the position was filled by someone who was exactly the same age as Chalawsky, the circumstances do not give rise to an inference of age discrimination. Sun is therefore also entitled to summary judgment on Chalawsky's claim that it discriminated against him when it failed to offer him the second Area Supervisor position.
b. The OTS Jobs
Sun does not dispute that Chalawsky can make out a prima facie case as to the two positions remaining in this case, namely the OTS jobs.[1] (D.I. 27 at 3.) Both of them were filled by significantly younger individuals. One OTS position was filled by 33 year-old Robert Knorr; the other was filled, after Chalawsky's termination, by 30 year-old Curtis Zimmerman.
Since Chalawsky can establish a prima facie case, the burden shifts to Sun "to articulate some legitimate non-discriminatory reason for the discharge." Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 202 (3d Cir.1987) (citing McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Sun contends it did not offer Chalawsky either of the two OTS positions because he did not possess certain necessary skills:
Chalawsky was not selected for any of the positions because it was believed he lacked the management, leadership and hands-on skills needed to fill the positions within the integrated operating department....
(D.I. 23 at 7; see also id. at 16.)
Because Sun has proffered a legitimate, non-discriminatory reason for not placing Chalawsky into one of the OTS jobs, the burden now shifts back to Chalawsky. He must produce sufficient evidence to permit a reasonable trier of fact to infer that Sun was actually motivated by a discriminatory reason, and not by the legitimate reason it claims. Chipollini, 814 F.2d at 898. Chalawsky can also meet his burden by merely proving that the reasons offered by Sun are "pretextual," somehow inconsistent, or otherwise unworthy of belief. See id.
Chalawsky points to numerous aspects of the record to demonstrate that Sun's reason for terminating him is pretextual. First, Chalawsky contends that he was more than just an average performer. He underscores his numerous salary increases and the many complimentary comments in his salary increase memos. (See D.I. 26 at A-6-A16.) Secondly, Chalawsky argues that Harron, SunOlin's president, conceded that Chalawsky was qualified for the OTS positions. Thirdly, Chalawsky contends his salary increase memos demonstrate he performed well in the areas Harron specifically stated were significant to him in deciding who would best fill the OTS positions. Fourthly, Chalawsky asserts that SunOlin historically put younger people in OTS jobs. And lastly, Chalawsky points outs that Sun's reason is a post hoc rationale based on subjective criteria and unsupported by the information in Chalawsky's personnel file.
Viewing all of the evidence in a light most favorable to him as non-movant, the Court concludes that Chalawsky has presented sufficient evidence to create a genuine issue of material fact with regard to Sun's reasons for not offering him one *796 of the two OTS positions. The numerous salary increase memos that discuss Chalawsky's performance contain favorable comments that contradict Harron's description of the essential skills Chalawsky was lacking. (See D.I. 26 at A-8-A-16; D.I. 27A at SA-6.) Harron characterized Chalawsky's alleged shortcomings as follows:
Q. What type of characteristics in your view was Mr. Chalawsky lacking?
A. Fred is not an aggressive, strong person. He's not strong in hands-on, the kinds of things you need to do to run the plant physically right down where the rubber meets the road, and he's not strong as a leader of those people. He's a phlegmatic individual. He's a nice person but he is not an aggressive change agent.
* * * * * *
Q. How about the operating technical specialist, was it required that those slots be filled with a person who has the characteristics you just gave me?
A. That person doesn't necessarily have to be a charismatic leader, for example, in the same sense as the person who manages the whole plant, like O'Rourke. That person has to be an aggressive person who looks around and analyzes what all the data in the plant seems to be saying, where they're standing compared to optimal conditions, where business changes occur, examining what the economics are of those business changes, whether it's a pricing change going on for refinery streams that would result in it being desirable to shut the unit down and steam air de-coke a heater, reducing through-puts at times when the value added wasn't there, making changes to take advantage of economics. That person is somebody that works with the operating people and the process engineers, has to be looking for lots of ways to improve things and has to be aggressive in getting there, getting to those changes.
(D.I. 26 at A-37-A-39, FC Dep. at 42-44 [emphasis added].) The following are some of the pertinent comments included in the salary increase memos, which were written throughout the years by Chalawsky's various supervisors:
Chalawsky has "[b]een a leader in the design and implementation of the skills evaluation program...." (Salary Increase Memo of 10-31-83, D.I. 26 at A-14 [emphasis added].)
Chalawsky "[r]educed overtime ... for an annual savings of $18,000 ... [i]nitiated the concept of the removal of one stage from the 203/204 compressor wheel ... for and [sic] annualized savings of approximately $350,000." (Id. [emphasis added].)
Chalawsky "has spent extra time and effort to learn the technological and personnel needs of this area and has initiated new cost-control methods. Cost savings generated during this period were substantial." (Salary Increase Memo of 9-25-86, D.I. 26 at A-16 [emphasis added].)
"Fred has been personally responsible for the initiation and follow up of the Selexsorb Mol Sieve project which should permit increased sales volume ... The safety program in the ethylene unit will have reached an all time record for no lost-time accidents in early December...." (Salary Increase Memo of 10-13-87, D.I. 27A at SA-6. [emphasis added].)
Because one could reasonably view these and other comments contained in the salary memos as inconsistent with Sun's rationale that Chalawsky lacked necessary leadership skills and initiative, summary judgment would not be appropriate.[2]
*797 Sun relies on Healy v. New York Life Insurance Co., 860 F.2d 1209 (3d Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989), an ADEA case in which the Third Circuit upheld the district court's grant of summary judgment in the defendant-employer's favor. In Healy, the court concluded that the plaintiff-employee, who had been discharged pursuant to a reduction in force, had not created a factual dispute as to pretext merely by showing that generally he had performed competently in his previous positions. See Healy, 860 F.2d at 1220. The court reasoned that "the essence of a RIF [i.e., reduction in force] is that competent employees who in more prosperous times would continue and flourish at a company may nevertheless have to be fired." Id.
Chalawsky's case is not, however, similar to Healy. In Healy the employer produced evaluations that specifically mentioned the plaintiff-employee's weaknesses. See id. at 1211. The employer was also able to point to a particular project that the employee did not complete satisfactorily. See id. at 1216. Chalawsky worked for Sun for two decades, but Sun has not produced a single negative comment from its files. Sun has also not pointed to any project or task that Chalawsky might have performed inadequately. Healy, therefore, does not help Sun.
II. Liquidated Damages[3]
Liquidated damages are available in an ADEA action only if the alleged violation is proved to be "willful." 29 U.S.C. § 626(b); see Dreyer v. Arco Chemical Co., 801 F.2d 651, 656 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987). "Willful" means something more than just a violation of the ADEA, which the Third Circuit has noted "is almost always intentional." Dreyer, 801 F.2d at 657. What is needed is "some additional evidence of outrageous conduct."[4]Id. at 658 (emphasis added). Examples of such conduct would be "the systematic purging of older people from the employee staff ...," or "termination of an employee at a time that would deprive him or her of an imminent pension...." Id. Chalawsky has not pointed to any evidence that would substantiate his claim that Sun's alleged violation was somehow outrageous.
Chalawsky essentially argues that the requisite outrageousness is shown because Sun did not give full consideration to his "unblemished 20 year career at SunOlin." (D.I. 26 at 24.) To support this contention, Chalawsky underscores (see id. at 25) the following portion of the deposition testimony of SunOlin President John G. Harron: "Q. Have you looked at Mr. Chalawsky's other 17 or 18 salary increase letters? A. No. No. That's water under the dam." (Id. at A-36, JH Dep. at 51.) But the rest of Harron's deposition reveals that Chalawsky's historic performance was not only considered, but also well known to the SunOlin management.
*798 Q. Who made the judgment that Mr. Chalawsky did not fill that bill?
A. I think several people over the years have basically realized that Fred is not as strong as perhaps he should have been. But he was a 20 some year employee of SunOlin and he was taken care of because of that. He was okay but he's not a star. And if you're looking for a star like O'Rourke would be, then he would not compete with O'Rourke.
Q. You said several people over the years had made the judgment that Chalawsky did not have these characteristics. Who were those people, if you know?
A. I came to those conclusions in the '73-77 era. My staff basically supported that.
Q. Who on your staff?
A. Jerry O'Rourke, Joe Young and Don Bobish, his supervisor.
(D.I. 26 at A-39, JH Dep. at 44.)
Thus, even assuming Chalawsky is correct in his statement that Harron was the final authority in the decision not to give him a job in the reorganized company,[5] Chalawsky has not produced any evidence to show his twenty year record was ignored. The single deposition comment referred to by Chalawsky is, as a matter of law, insufficient to allow a reasonable trier of fact to conclude that Sun deliberately and completely ignored the twenty year work history of a prospective employee. As shown by Harron's subsequent deposition comments, Chalawsky simply takes this comment out of context. More importantly, however, even if it were true that Chalawsky's work record did not receive the attention it merited, as a matter of law such conduct does not rise to the level of outrageousness, at least not on these facts. Not only is the character of the alleged harm by Sun not outrageous, but similarly, the nature and extent of the alleged harm is not "beyond that normally associated with an employee's discharge resulting from age discrimination...." Lockhart, 879 F.2d at 58.
Chalawsky also contends that Sun's conduct should be considered willful because "Sun does not contest Chalawsky's qualifications for two OTS positions which were to survive the reorganization," and "[o]ne of those positions was still vacant when Chalawsky was terminated." (D.I. 26 at 25.) A similar claim was rejected in Dreyer. There, the Third Circuit noted that the fact that the employer failed to appoint the plaintiff, "to other available jobs filled by younger employees," was relevant "at most" to "a violation of the ADEA, but not [to] the outrageous conduct needed to distinguish a violation from willful action." Dreyer, 801 F.2d at 658-59.
In sum, Chalawsky has pointed to no evidence that could support a finding of outrageousness. Accordingly, the Court concludes that Sun is entitled to summary judgment on Chalawsky's liquidated damages claim.
III. State Law Claim
In addition to his federal claims, Chalawsky asserts a pendent claim under Delaware law. He alleges that Sun violated 19 Del.C. § 711(a), by discriminating against him on the basis of age. Sun argues that Chalawsky has exhausted any rights he may have had under state law. The Court finds that Sun's challenge has merit.
Delaware law prohibits employment discrimination on the basis of "race, marital status, color, age, religion, sex or national origin...." 19 Del.C. § 711(a) (emphasis added). The statute directs the state Department of Labor ("DDOL") to investigate charges of discrimination. See 19 Del.C. § 712(b). It further provides that "[i]f the Department determines after such investigation that there is reasonable cause to believe that the charge is not true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the *799 respondent of its action." 19 Del.C. § 712(b).
If, however, the DDOL determines that "there is reasonable cause to believe that the charge is true," it will first attempt to secure voluntary compliance. 19 Del.C. § 712(c). If voluntary compliance cannot be attained, the DDOL will issue a complaint and institute proceedings before a review board. 19 Del.C. § 712(e). Following a hearing and the taking of evidence, the review board issues its findings and orders the appropriate relief. 19 Del.C. § 712(g). The review board's findings may be appealed in state court. See 19 Del.C. § 712(h).
In this case, the DDOL determined that Chalawsky's charge of discrimination could not be substantiated. (See D.I. 23A, Exhibit 5 at Dx7 [letter from DDOL].) Therefore, the subsequent hearing before a review board, from which Chalawsky could appeal in court, never took place.
Chalawsky argues that even though the statute does not authorize an independent cause of action or judicial review of the DDOL's findings, this Court should presume that the statute grants such a right because judicial review is not specifically prohibited. Chalawsky's reasoning is seriously flawed. Although the state legislature authorized judicial review of the review board's findings, it also expressly insulated from review the DDOL's determination that a complaint should be issued because voluntary compliance would not be forthcoming. See 19 Del.C. § 712(e) ("If the Department determines, after attempting to secure voluntary compliance ... that it is unable to secure from respondent a conciliation agreement acceptable to the Department and to the person aggrieved, which determination shall not be reviewable in any court, the Department shall issue ... a complaint...." [emphasis added]). It therefore seems unlikely that a matter such as an initial determination of probable cause, which is also within the DDOL's discretion, was meant to be reviewable in court. Likewise, given the unreviewable discretion granted to the DDOL, it seems unlikely a private right to suedespite an unfavorable determination by the DDOLwas intended. This Court will not presume the Delaware legislature intended remedies it did not include in the statute. Cf. Public Service Commission v. Diamond State Telephone Co., 468 A.2d 1285, 1300 (Del.1983).
The case relied on by Chalawsky is completely inapposite. See Giles v. Family Court of Delaware, 411 A.2d 599 (Del. 1980). Giles involved an appeal from a review board decision. See id. at 600-01. Chalawsky's case was not heard by a review board; it never made it beyond the first step in the Delaware statutory scheme because the DDOL found, following its investigation, that there was no probable cause to believe any violations had occurred. The Court concludes that Chalawsky does not have a right to sue under 19 Del.C. §§ 711-12 because he has exhausted his state remedies.
Chalawsky alternatively suggests that his right to challenge the DDOL's determination that no probable cause existed should be inferred from the state's Administrative Procedures Act, which attempts "to standardize the procedures and methods whereby certain state agencies exercise their statutory powers and to specify the manner and extent to which action by such agencies may be subjected to judicial review." 29 Del.C. § 10101. Even assuming that Chalawsky is correct that the Administrative Procedures Act applies to the DDOL's initial probable cause determination under the state employment discrimination law,[6] Chalawsky's alleged right to appeal the agency "decision" has expired.
The Act limits a party's right to seek judicial review of an agency decision to thirty days from "the day the notice of the decision was mailed." 29 Del.C. § 10142(b). The DDOL notice is dated *800 June 22, 1988. (See D.I. 23A, Exhibit 5 at Dx7.) Chalawsky did not bring this suit until March 10, 1989 (D.I. 1), surely more than thirty days after the DDOL notice was mailed.[7] The state discrimination statute similarly limits the time period for seeking judicial review of review board findings. See 19 Del.C. § 712(h) (30 days after copy of review board order is received). Accordingly, Chalawsky's reliance on the state Administrative Procedures Act is untimely.
CONCLUSION
Sun's motion for summary judgment as to all of Chalawsky's claims will be granted in part. Judgment will be entered in favor of Sun on both the liquidated damages claim and the pendent claim under Delaware law. With regard to the ADEA claim, however, Sun is entitled to summary judgment only as to three of the five positions Chalawsky alleges he was unlawfully denied; Chalawsky may proceed to trial with his claims as to the two OTS positions.[8] An appropriate order follows.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
For the reasons set forth in the Court's Memorandum Opinion entered in this action on this date, it is:
ORDERED, ADJUDGED, and DECREED that:
1. The motion for summary judgment filed by defendant Sun is granted in part and denied in part.
2. Judgment is hereby entered in favor of Sun, and against plaintiff Chalawsky, insofar as Count I of the complaint alleges a claim under the ADEA, 29 U.S.C. § 621 et seq., with respect to the one Operating Superintendent and two Area Supervisor jobs described in the accompanying Memorandum Opinion.
3. Sun's motion for summary judgment on Count I of the complaint is hereby denied insofar as Chalawsky asserts an ADEA claim with respect to the two OTS jobs described in the accompanying Memorandum Opinion.
4. Judgment is hereby entered in favor of Sun on Chalawsky's claim for liquidated damages.
5. Sun's motion for summary judgment on Count II of the complaint, which alleges a claim under the FLSA, 29 U.S.C. § 216(b), is denied except to the extent stated in # 4 above.
6. Judgment is hereby entered in favor of Sun on Count III, Chalawsky's claim under Delaware law, 19 Del.C. § 711(a).
NOTES
[1] Sun characterizes the OTS positions as lower in level than the Area Superintendent job held by Chalawsky before the reorganization of SunOlin. Chalawsky also describes the OTS positions as lesser jobs.
[2] Sun argues that even if Harron's testimony is somehow inconsistent with the salary memos, such a discrepancy is not sufficient to cast doubt upon Sun's articulated reason for not hiring Chalawsky because Harron was not the person who made the final hiring decisions. The exact extent to which Harron may have influenced the new management's trimming of the SunOlin workforce is not clear. Nevertheless, it is not disputed that Harron had some role. (See, e.g., D.I. 27 at 8; D.I. 23A, JM Dep. at 33-35.) More to the point, however, Sun itself supports its articulated reason for not hiring Chalawsky with Harron's testimony regarding Chalawsky's alleged deficiencies. (See D.I. 23 at 16-17 [citing JH Dep. at 42-44].)
The only other evidence on which Sun relies, to establish that Chalawsky "lacked the initiative as a problem solver and the leadership skills to fill any of the positions in the integrated operating department ..." (id. at 16), is the testimony of Joseph Mazzei, manager of the Marcus Hook refinery. (See id.) But Mazzei himself relied at least in part on Harron's characterization of Chalawsky. (See D.I. 23A, Exhibit 4, JM Dep. at 53.) Moreover, although Mazzei also states that he relied on the conclusions of his subordinate, Malcolm Flint, Mazzei does not explain on what Flint's opinions were based. (See id.) Sun has not offered Flint's testimony. Thus, while we know that Flint concluded Chalawsky was not right for the OTS jobs, we do not know why.
Harron's testimony regarding the skills Chalawsky allegedly lacked offers the only explanation for why he was not hired. Hence, it is material.
[3] Although his complaint initially requested both punitive and liquidated damages, plaintiff later conceded that punitive damages were not available in this action. (D.I. 26 at 24 n. 8.)
[4] Because this case involves disparate treatment of an individual, the Supreme Court's Thurston formulation of willfulness"if an employer knew or showed reckless disregard for the matter of whether its conduct violated the ADEA" is not the governing standard. Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57 (3d Cir.1989) (discussing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-30, 105 S.Ct. 613, 623-26, 83 L.Ed.2d 523 (1985)).
[5] Sun strongly disputes this assertion. (See, e.g., D.I. 27 at 13.) In light of the Court's conclusions, however, this dispute is not material.
[6] The Court does not express any opinion on this portion of Chalawsky's argument. See 29 Del.C. § 10142(a) ("Any party against whom a case decision has been decided may appeal such decision to the Court." [emphasis added]); see also 29 Del.C. § 10102(3) (defining "case decision").
[7] Chalawsky admits receiving notice of the DDOL's determination on June 22, 1988. (See D.I. 10 at ¶ 10.)
[8] Count II of Chalawsky's complaint alleges a cause of action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). (See D.I. 10 at ¶ 15.) That portion of the FLSA authorizes a court to award various legal and equitable remedies, and is incorporated by reference into the ADEA. See 29 U.S.C. § 626(b) ("Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title...."). The FLSA remedy provisions do not, however, come into play until an ADEA violation is made out. See id. Therefore, Chalawsky's claim under section 216(b) survives to the extent that his ADEA claim does (with the exception that liquidated damages will not be available for the reasons set forth in this opinion).
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Court of Appeals
of the State of Georgia
ATLANTA, May 26, 2020
The Court of Appeals hereby passes the following order
A20I0215. UNIVERSITY HEALTH SERVICES, INC. v. PETER CUNNINGHAM, et al.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2016RCCV0535
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, May 26, 2020.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
10-17-1994
USA v. McCalla
Precedential or Non-Precedential:
Docket 93-1908
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"USA v. McCalla" (1994). 1994 Decisions. Paper 157.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/157
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-1908
___________
UNITED STATES OF AMERICA
vs.
HURBY SEPTIMUS MCCALLA
aka TERRANCE GEORGE BEECHAM
aka MICHAEL G. SMITH
a/k/a THOMAS HARDING
Hurby McCalla,
Appellant
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 93-cr-00128-1)
___________
Argued
August 11, 1994
Before: MANSMANN, COWEN and McKEE, Circuit Judges.
(Filed October 14, 1994)
___________
Michael R. Stiles
United States Attorney
Walter S. Batty
Assistant United States Attorney
Eric W. Sitarchuk, Esquire (ARGUED)
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
COUNSEL FOR APPELLEE
Steven A. Morley, Esquire (ARGUED)
Benjamin Franklin House
Suite 400
834 Chestnut Street
Philadelphia, PA 19107
COUNSEL FOR APPELLANT
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
A jury convicted Hurby Septimus McCalla pursuant to 8
U.S.C. § 1326 for his unauthorized reentry into the United States
as an alien who had previously been deported after an aggravated
felony conviction. At the time of his deportation, McCalla was
given a standard Form I-294 notice which warned that his reentry
into the United States without first procuring the permission of
the United States Attorney General would expose him to a maximum
prison sentence of two years. The two year penalty indicated on
the form was a misstatement of the actual statutory maximum
penalty of up to 15 years imprisonment. The main issue we
address is whether the government should have been precluded
under the theory of fair warning, the rule of lenity, or the
doctrine of entrapment from seeking a sentence in excess of two
years and ultimately, whether the district court erred in
sentencing McCalla to a prison term which substantially exceeded
the two years described in the notice.
I.
Hurby Septimus McCalla1 was deported on or about
April 9, 1991. At that time, he received and signed Immigration
and Naturalization Service Form I-294, which stated:
1
. McCalla has used a variety of aliases. He was
convicted in New Jersey Superior Court on May 3, 1988, for
possession of a controlled dangerous substance with intent to
Should you wish to return to the United
States you must write [the United States
Department of Justice, Immigration and
Naturalization Service] or the American
Consular Office nearest your residence abroad
as to how to obtain permission to return
after deportation. By law (Title 8 of United
States Code, Section 1326) any deported
person who within five years returns without
permission is guilty of a felony. If
convicted he may be punished by imprisonment
of not more than two years and/or a fine of
not more than $1,000.00.
S.A. 1 (emphasis added).
The INS Form I-294 given McCalla had not been revised
to reflect changes in section 1326 of Title 8, U.S.C., which had
occurred on November 18, 1988 and November 19, 1990. The 1988
amendment to section 1326 added a subsection (b), providing for
enhanced penalties where the defendant has had prior felony
convictions. A second amendment in 1990 increased the associated
maximum fine from $1,000 to $250,000 in accordance with 18 U.S.C.
§ 3571(b)(3). Consequently, the portions of section 1326
(..continued)
distribute and distribution of a controlled dangerous substance
under the name Michael G. Smith. As a result of that conviction,
McCalla was deported from the United States on April 9, 1991,
under the name Terrance George Beecham. On April 15, 1992,
McCalla was arrested in Philadelphia, Pennsylvania, under the
name, Thomas Harding. Apparently, on June 30, 1992, McCalla was
again arrested, this time under the name, Dennis Clark, but a
fingerprint analysis identified him to be the same person as
Thomas Harding. On January 21, 1993, McCalla admitted that his
true name is Hurby Septimus McCalla. A combination of comparison
photographs and fingerprint analyses compiled from local police
department records and FBI records established that all of the
above names, and other names or spellings, refer to one and the
same Hurby Septimus McCalla.
applicable to McCalla at the time of his deportation were as
follows:
(a) Subject to subsection (b) of this
section, any alien who --
(1) has been arrested and deported
or excluded and deported, and
thereafter
(2) enters . . . or is at any time
found in, the United States, unless
(A) prior to his reembarkation at a
place outside the United States
. . . the Attorney General has
expressly consented to such alien's
reapplying for admission; or (B)
with respect to an alien previously
excluded and deported, unless such
alien shall establish that he was
not required to obtain such advance
consent under this chapter or any
prior Act,
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection --
* * *
(2) whose deportation was
subsequent to a conviction for
commission of an aggravated felony,
such alien shall be fined under
such Title, imprisoned not more
than 15 years, or both.
8 U.S.C. § 1326 (as amended Nov. 18, 1988, Pub. L. 100-690, 102
Stat. 4471; Nov. 29, 1990, Pub. L. 101-649, 104 Stat. 5059).
On or about April 15, 1992,2 McCalla was found in
Philadelphia, having reentered the United States without first
2
. The indictment charged that McCalla was found in
Philadelphia, Pennsylvania, on or about April 15, 1992, under
circumstances which brought his presence in the United States to
the attention of local police authorities. He was at a night
club when a security guard noticed he was carrying a loaded
applying to the Attorney General of the United States for
admission and receiving her express consent pursuant to section
1326. He was thus charged with a violation of section
1326(b)(2).
At trial, the court precluded defense counsel from
raising to the jury the issue of whether McCalla could be
properly charged pursuant to 8 U.S.C. § 1326(b) in light of the
errors contained in Form I-294. The jury returned a guilty
verdict on the single count indictment. At sentencing, McCalla
argued that the government was bound to the misstatements made in
Form I-294 in seeking his sentence, and therefore that the
government was precluded from seeking a sentence in excess of 2
years despite the 15 year maximum imprisonment provided in
section 1326(b)(2). Nonetheless, the court calculated McCalla's
offense range at 100 to 125 months pursuant to the United States
Sentencing Guidelines, and imposed a sentence of 112 months
imprisonment with three years supervised release following
completion of his prison sentence and a financial penalty in the
amount of $50.00.3
(..continued)
pistol and telephoned the police, who subsequently arrested him.
The complaint alleged that McCalla was found in the United States
on or about January 20, 1993. That date coincides with the date
he was placed in the custody of the Immigration and
Naturalization Service after completing sentences for local
offenses.
3
. The district court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. This is an appeal from a final
judgment of conviction and order of sentence pursuant to 28
U.S.C. § 1291.
II.
The issue of whether due process mandates that the
government be limited to the maximum sentence promulgated by the
government's own inaccurate notice of the current law is one of
first impression in this circuit.
McCalla argues that due process, fundamental fairness
and the rule of lenity militate against imposition of a prison
sentence in excess of that which the government has clearly
represented it could be. He further argues that the public
policy supporting the doctrine of entrapment would preclude the
government from receiving a "benefit" from its act of
misrepresentation. Thus McCalla seeks to have this case remanded
to the district court for resentencing within a two-year sentence
limitation.
Our sister courts of appeals have recently rejected the
arguments which McCalla raises before us. In United States v.
Perez-Torres, 15 F.3d 403 (5th Cir. 1994), a case involving the
very same act of misrepresentation on the part of INS, the Court
of Appeals for the Fifth Circuit held:
Form I-294 is not a criminal statute. Hence,
the defect [the defendant] complains of lies
not in the underlying statute, but rather in
a provision of a document with no relevant
legal force. As [the defendant] concedes,
section 1326 clearly and unambiguously
articulated the penalties associated with a
reentry offense. Thus, regardless of the
inaccuracy of Form I-294, the statute under
which [the defendant] was convicted provided
notice adequate to satisfy the requirements
of due process.
Id. at 406.
Similarly, in reversing the decision of its district
court, the Court of Appeals for the Ninth Circuit held in United
States v. Sanchez-Montoya, 1994 U.S. App. LEXIS 18,742, *2 (9th
Cir. July 26, 1994) that,
[N]either due process nor principles of
equitable estoppel precludes imposing a
prison term exceeding two years for illegal
reentry on a defendant who had been advised
erroneously by the INS before deportation
that the maximum penalty for that offense was
two years. [citing United States v. Ullyses-
Salazar, No. 93-50144, Slip op. 6543, 6549,
6551-52 (9th Cir. June 20, 1994)]. We also
conclude[] that such circumstances do not
constitute a valid basis for a downward
departure. [Citing id. at 6553.]
Accord United States v. Samaniego-Rodriguez, 1994 W.L. 401595
(7th Cir. Aug. 4, 1994) (Form I-294 cannot give rise to a due
process violation and section 1326 unquestionably satisfies all
due process requirements); United States v. Shaw, 1994 W.L.
244362 (7th Cir. June 7, 1994) (pre-deportation warning that
reentry is punishable by a maximum of two years does not render
the 46-month sentence imposed a violation of due process).
We agree with our sister courts of appeals. Although
the inaccuracy in Form I-294 was regrettable, perhaps
inexcusable, due process requires that it is the criminal statute
which must clearly set forth the activity which constitutes a
crime and the punishment authorized for committing such a crime.
See United States v. Batchelder, 442 U.S. 114, 121 (1979) (a
statute which ambiguously specifies criminal conduct or the
penalties authorized upon conviction raises a constitutional
question). Section 1326(b)(2) clearly comports with the due
process requirement of fair notice.
Similarly, the rule of lenity applies to ambiguous
criminal statutes. Simpson v. United States, 435 U.S. 6, 14-15
(1978) (ambiguities in either the substantive or sentencing
provisions of criminal statutes justify application of lenity);
United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)
(lenity only applies where reasonable doubt persists concerning
ambit of statute even after review of statutory text, structure,
legislative history and polices). Section 1326(b)(2) is not
ambiguous and we decline to employ the rule of lenity to override
the indisputable terms of the criminal statute.
Finally, the defense of entrapment serves to protect
against a deception on the part of the government that induces a
criminal act by "actually implant[ing] the criminal design in the
mind of the defendant." United States v. Russell, 411 U.S. 423,
436 (1973). Furthermore, a claim of entrapment requires proof
that the defendant lacked predisposition to commit the crime.
Id. (entrapment defense requires government inducement and lack
of predisposition); see also United States v. Wright, 921 F.2d
42, 44 (3d Cir. 1990), cert. denied, 501 U.S. 1207 (1991).
Neither of those elements is shown here. Form I-294 did not
mislead McCalla as to what constituted the specific criminal act;
nor do we regard the misstatement as to the punitive sentence
relevant to proving McCalla's predisposition. McCalla willfully
reentered the United States despite the government's express
notice that such reentry would constitute a felony. Public
policy militates against equity here.4
III.
McCalla raises other claims which we find meritless.
McCalla claims, for example, that the use of his prior aggravated
felony conviction to enhance his punishment was in violation of
the ex post facto clause. We hold, however, that because the
violation of section 1326(b) occurred subsequent to the effective
date of the statutory amendment which provided for an enhanced
punishment, there was no ex post facto violation. The date of
McCalla's prior criminal conduct is not relevant for purposes of
an ex post facto analysis here. See Gryger v. Burke, 334 U.S.
728, 732 (1948); United States v. Arzate-Nunez, 18 F.3d 730, 734
(9th Cir. 1994) ("[f]or purposes of analyzing . . . statutes
increasing penalties for future crimes based on past crimes, the
relevant `offense' is the current crime, not the predicate
crime").
McCalla also asserts that evidence of the circumstances
under which his reentry came to the attention of authorities and
of his subsequent arrest processing was unduly prejudicial and
improperly admitted into evidence, and hence that he is entitled
4
. At trial, defense counsel argued that the government
should be estopped from proving any elements of section
1326(b)(2) calling for a penalty in excess of two years, the
implication being that McCalla detrimentally relied in good faith
upon the government's misrepresentation in deciding to risk the
commission of a felony. McCalla precluded a finding of good
faith, however, by his willful violation of the criminal law.
to a new trial. McCalla further contends that he was denied the
effective assistance of counsel because defense counsel failed to
object to the allegedly improper introduction of this evidence.
In ruling on the motion in limine, the court held that the
evidence was admissible to the extent that it was a foundation
for an understanding of the sequence of events which established
McCalla's surreptitious and voluntary presence in the United
States. Furthermore, in light of McCalla's various aliases, the
evidence helped to establish his identity. We hold that it was
well within the district court's sound discretion to permit the
evidence, and in light of the overwhelming case against McCalla,
we do not find any evidence of prejudice or a manifest
miscarriage of justice requisite to a finding of ineffective
assistance of counsel raised first on direct appeal. Moreover,
testimony concerning the basis of McCalla's prior sentence, given
on redirect examination in response to questions asked during
cross-examination, was invited, and admission of that evidence
does not constitute plain error.
Finally, McCalla asserts that the deportation hearing
which he was afforded in 1991 did not comport with due process or
the statutes and regulations apropos to such hearings. He argues
that the alleged deficiency of his deportation hearing precludes
using his prior deportation as the basis of the section 1326
charge against him. Specifically, McCalla asserts that the use
of a telephonic hearing directly contravened the mandate of 8
U.S.C. § 1252(b), which governs the determination of
deportability. McCalla further alleges that the deportation
order was predicated upon a record of conviction which the
immigration judge never saw, instead relying solely on McCalla's
admission and the representations of the prosecutor that such a
record exists and as to its contents.5
We acknowledge that a severely deficient deportation
proceeding which effectively deprives the defendant of his right
of direct appeal may preclude use of that deportation as a
predicate to prosecution under section 1326. See, e.g., United
States v. Mendoza-Lopez, 481 U.S. 828, 838 (1984) ("where the
defects in an administrative proceeding foreclose judicial review
of that proceeding, an alternative means of obtaining judicial
review must be made available before the administrative order may
be used to establish conclusively an element of a criminal
offense"). McCalla has failed to demonstrate, however, that he
was effectively deprived of his right of direct appeal and we
will not dismiss the section 1326 charge against him.
5
. We note here that in granting the government's motion
to preclude evidence of the alleged invalidity of McCalla's
deportation, the court held that McCalla had waived his right to
collaterally attack the validity of his deportation proceeding
because he had not raised any due process challenge to the
indictment prior to trial in accordance with the time provisions
set forth in Federal Rule of Criminal Procedure 12 and Local Rule
of Criminal Procedure 11. See Memorandum Order of the District
Court, Criminal Action No. 93-128 (May 11, 1993, at p. 9, S.A.
151). Nevertheless, the court heard the merits of that claim and
ruled that McCalla had failed to meet his burden to establish a
due process violation. S.A. 151-58.
IV.
For the foregoing reasons, the judgment of sentence
entered on September 17, 1993, against Hurby Septimus McCalla in
the United States District Court for the Eastern District of
Pennsylvania will be affirmed.
_________________________
MCKEE, Circuit Judge, dissenting.
While I agree with the majority in all other
respects, I respectfully dissent from Part II of the majority
opinion. The majority reasons that, despite the fact that the
government disseminated the inaccurate maximum penalty
information printed on form I-294 to McCalla (and countless other
deportees), McCalla's sentence in excess of two years does not
offend due process because the relevant statute gave notice to
all the world of its contents. Notice of the conduct
that a statute proscribes and the penalty prescribed for such
conduct are fundamental to due process of law. See McBoyle v.
United States, 283 U.S. 25, 27 (1931). The statement on form I-
294, did not give McCalla accurate information and fair warning
regarding "what the law intends to do if a certain line is
passed." Id. Accordingly, traditional notions of fairness
inherent in the requirement of due process should preclude us
from allowing McCalla to be sentenced to more than the two years
that the government represented to be the maximum sentence.
Although the government was justified in its
efforts to incarcerate McCalla based upon his illegal return to
this country, our holding today does not properly consider the
totality of the circumstances of McCalla's deportation and the
context in which he received the "information" in form I-294.
The record before us establishes that once it is determined that
an individual will be deported, the government makes flight
arrangements for the deportee. At the appointed time, the
deportee is escorted to the airport in handcuffs by two
deportation officers who fingerprint the deportee and are
responsible for making sure that the deportee signs the warrant
of deportation. Prior to departure the handcuffs are removed,
and the warrant of deportation is read to the deportee and then
given to him or her along with a copy of form I-294. He or she
is then put on the airplane, and the appropriate travel
documentation is given to an airline attendant.
In this coercive atmosphere the government clearly
intends for the deportee to read and rely upon the information
and warnings in each of the documents that are presented to him
or her. Indeed, McCalla was given form I-294 so that he would
take note of, and heed, the warnings it contained. We now allow
the government to successfully assert that the contents of the
form are irrelevant to McCalla's notice.
We charge the defendant with knowledge because of
the unambiguous statute, yet we do not charge the government
agency responsible for enforcing this country's immigration laws
with the same notice, and we excuse the error in this form. It
stands reality on its head to suggest that the unambiguous
statute buried within one particular volume of the United States
Code sitting somewhere upon the shelves in far off law libraries
somehow reaches out to McCalla in these circumstances and trumps
the "information" in form I-294.
I fail to understand the logic or fairness of a
position which charges this defendant with knowledge based upon
the publication of a statute yet fails to attribute that same
knowledge to duly appointed agents of the Attorney General of the
United States, or the agency of the government responsible for
enforcing immigration laws. All parties seem to agree that the
INS did not intentionally mislead McCalla because the INS did not
realize that the information contained in form I-294 was wrong
when agents handed it to McCalla. Yet, this defendant who is not
responsible for enforcing the law, is charged with notice of the
change in the law.
Courts have traditionally held that one must know
the consequences of an action before one can be held criminally
accountable for the action. Thus, due process and fair notice
dictate that a defendant cannot be punished when the statute does
not clearly define the criminal conduct. McBoyle, 283 U.S. at
27. In addition, no penalty can be imposed if a statute does not
prescribe punishment for certain conduct. United States v. Evans,
333 U.S. 483, 495 (1948). Accordingly, under the circumstances
of this case, it is reasonable to limit the government to the
sentence that it has represented to be the maximum penalty. I
believe fundamental fairness requires nothing less.
The rationale asserted by the government and
adopted by the majority elevates the maxim that "ignorance of the
law is no excuse" to a mantra which has hindered realistic
analysis here. The Supreme Court recently had occasion to limit
the use of this "age old maxim" in Ratzlaf v. United States,
U.S. , 114 S. Ct. 655 (1994). Ratzlaf, though clearly
distinguishable, teaches that the existence of a statute cannot
serve to give notice of its contents for all purposes even when a
defendant engages in conduct known to be improper. Id. at 663.
McCalla was aware of the contents of 8 U.S.C. § 1326(b)(2) just
as the defendant in Ratzlaf was aware of the contents of the
statutes at issue in that case. Both defendants knew that they
were engaging in conduct that was improper. The Court in
Ratzlaf, however, held that the defendant could not be charged
with knowledge that his conduct was a crime. See id. at 658.
Just as the defendant in Ratzlaf could not be charged with
knowledge of the criminal nature of his activity, the
circumstances surrounding McCalla's deportation should preclude
charging him with knowledge of 8 U.S.C. § 1326.
Thus, absent controlling precedent to the
contrary, I believe that fundamental fairness limits the maximum
penalty to which this defendant should be subjected to that
amount of incarceration which the government told him he could
expect if he were to return illegally. Therefore, I most
respectfully dissent.
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Case: 12-13384 Date Filed: 01/16/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13384
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cr-00628-SDM-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN DANFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 16, 2013)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Case: 12-13384 Date Filed: 01/16/2013 Page: 2 of 3
Kelvin Danford appeals the application of the sentencing enhancement
contained in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), in his
case. At the time of his arrest, Danford had four prior felony convictions for
selling crack cocaine on four different dates in Alabama, but all four convictions
resulted from one case, which was concluded in one sentencing proceeding. On
appeal, Danford argues that his prior convictions did not qualify as the three prior
convictions required under the ACCA because they were adjudicated in one case.
After thorough review, we affirm.
We review de novo whether crimes were committed on “occasions different
from one another,” within the meaning of the ACCA. United States v. Canty, 570
F.3d 1251, 1254-55 (11th Cir. 2009) (quotation omitted). Under the prior
precedent rule, a prior panel’s holding is binding on all subsequent panels of this
Court unless the holding is overruled or undermined to the point of abrogation by
the Supreme Court or by this Court sitting en banc. United States v. Sneed, 600
F.3d 1326, 1332 (11th Cir. 2010).
Pursuant to 18 U.S.C. § 924(e)(1), a person who violates § 922(g) and who
“has three previous convictions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another” is subject to a 15-year
mandatory minimum sentence. 18 U.S.C § 924(e)(1). To satisfy this requirement,
the three prior convictions must be “for crimes that are temporally distinct,” which
2
Case: 12-13384 Date Filed: 01/16/2013 Page: 3 of 3
requires that the government demonstrate that the previous convictions arose out of
separate and distinct criminal episodes. Sneed, 600 F.3d at 1329-30 (quotation
and emphasis omitted). Even where the gaps are small, distinctions in time and
place are typically sufficient to separate criminal episodes from one another, such
that two offenses are distinct so long as “some temporal break” occurs between
them. Id. at 1330 (quotation omitted).
Here, the district court did not err by concluding that Danford was subject to
the § 924(e)(1) enhancement due to his prior felony convictions. Although he was
convicted and sentenced at the same time for each of his crimes, Danford’s prior
convictions for the sale of cocaine arose out of separate and distinct criminal
episodes, as they each involved the sale of cocaine on a different day. See Sneed,
600 F.3d at 1329-30. The intervening days between each criminal episode
constituted “temporal breaks,” sufficient to separate them from each other. See id.
at 1330. Danford concedes that our binding caselaw required the district court’s
conclusion, but urges us to adopt a different holding in this case. Nevertheless, we
are bound by the holding in Sneed until the holding is overruled or undermined to
the point of abrogation by the Supreme Court or by this Court sitting en banc. Id.
at 1332.
AFFIRMED.
3
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862 A.2d 127 (2004)
Stanley E. WHEELER, Petitioner
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs October 8, 2004.
Decided November 17, 2004.
*128 Christian A. Lovecchio, Williamsport, for petitioner.
*129 Arthur R. Thomas, Harrisburg, for respondent.
BEFORE: McGINLEY, Judge, and COHN JUBELIRER, Judge, and FLAHERTY, Senior Judge.
OPINION BY Judge COHN JUBELIRER.
Stanley Wheeler petitions for review of a letter written by the District Director of the Williamsport District Office of the Pennsylvania Board of Probation and Parole (Board) denying his request to revoke a special parole condition that he "not contact or associate with Deborah Lindenmuth[1] except as permitted, in writing, by parole agent Mandatory."[2] On appeal, Wheeler asserts that the Board abused its discretion by failing to revoke the condition.[3]
In response to Wheeler's petition for review, the Board has filed a Motion to Dismiss for Want of Jurisdiction in the Unified Judicial System, which is also before us for disposition. In its motion, the Board asserts, inter alia, that the letter is not an "adjudication," and, therefore, is not subject to appeal. Because we agree with the Board that the District Director's letter is not an "adjudication" and, therefore, not subject to any right of appeal, we grant the Motion to Dismiss.
Article V, Section 9 of the Pennsylvania Constitution of 1968 provides for a right of appeal from an administrative agency to a court of record. However, this provision does not apply to agency actions that are not "adjudications" or decisions that are not judicial in nature. McVickar v. Department of Transportation, 36 Pa.Cmwlth. 561, 388 A.2d 775, 776 (1978) (decided under former version of Administrative Agency Law (AAL)). Accord Concerned Citizens of Chestnuthill Township v. Department of Environmental Resources, 158 Pa.Cmwlth. 248, 632 A.2d 1 (1993), petition for allowance of appeal denied, 537 Pa. 635, 642 A.2d 488 (1994). "Adjudication" is defined in Section 101 of the AAL as:
Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order ... which involves parole s....
2 Pa.C.S. § 101 (emphasis added). In addition, our Supreme Court has held that when the Board exercises its paroling power, that action is not adjudicatory in nature. Rogers v. Pennsylvania Board of *130 Probation and Parole, 555 Pa. 285, 724 A.2d 319 (1999). The Court stated in Rogers:
[T]he definition of adjudication clearly and unambiguously provides that parole decisions are not ones which are subject to appellate review by the courts. Therefore, because the General Assembly, in its wisdom, has conferred upon the Parole Board sole discretion to determine whether a prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside of the confines of prison, we hold that the courts of the Commonwealth do not have statutory jurisdiction to conduct appellate review of a decision of the Board, since such a decision does not constitute an adjudication.
Id. at 291, 724 A.2d at 322. It, therefore, follows that when the Board imposes a condition of parole, which is really a "lesser included power" within the general power to grant parole, its action cannot be deemed an "adjudication" for purposes of appellate review.
Wheeler asserts, however, that the condition at issue here concerns his "right to marital privacy" and, thus, impacts on a "personal right," bringing his situation within the definition of adjudication. We do not agree.
We recognize that couples have a privacy right attendant to marriage. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Nothing in Griswold suggests, however, that such a right applies to parole conditions placed on convicts in situations where, as here, there has been a documented history of domestic violence. Griswold concerned the privacy rights of a married couple to use birth control methods. Neither marital partner was a convict on parole, nor did the case give any indication that domestic violence was an issue there.
One who is subject to incarceration, by virtue of that status, gives up certain constitutional rights, for example, the right to liberty or to travel. Wheeler, as a parolee, has been granted leave to serve his sentence outside prison walls, but, because of his status as a parolee, is subject to restrictions that might otherwise run afoul of constitutional principles. See Rogers, 555 at 291, 724 A.2d at 322.
Section 1 of what is colloquially known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 311.1, provides that when the Board considers a paroling action it shall "first and foremost seek to protect the safety of the public." This directive clearly envisions that restrictions can legitimately be placed on a parolee, similar to the restrictions legitimately placed on incarcerated persons. Those restrictions, of course, must relate to the goals of the Parole Act. Cf. Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir.2002), cert. denied, 537 U.S. 1039, 123 S.Ct. 558, 154 L.Ed.2d 462 (2002) (reasoning that incarcerated persons retain only those rights that are not inconsistent with legitimate penological goals). Certainly, prohibiting a parolee from having contact with a spouse he has physically abused in the past serves the Parole Act's goal of protecting the public.[4] Thus, we conclude *131 that Wheeler has no cognizable "personal right" that would entitle him to an adjudication or to appellate review of the paroling condition at issue.
Accordingly, because we agree with the Board that this matter is not an adjudication subject to appeal, we will grant the Motion to Dismiss the petition for review.[5]
ORDER
NOW, November 17, 2004, the Motion to Dismiss for Want of Jurisdiction in the Unified Judicial System filed by the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby granted, and the Petition for Review is dismissed.
NOTES
[1] Lindenmuth is allegedly Wheeler's wife. For purposes of this case, we assume that she is.
[2] Because of the procedural posture of this case, the record is minimal and does not indicate the details of Wheeler's criminal or ongoing parole history. It does appear, however, that he was serving a five year sentence for driving under the influence.
[3] The Board indicates in its brief that, since the filing of this case, Wheeler's parole has been revoked and, therefore, it asserts that the matter is moot. However, there is an exception to the mootness doctrine where the conduct at issue is capable of repetition, but likely to evade review; the issue involved is important to the public interest; or the party will suffer some detriment without the court's decision. Musheno v. Department of Public Welfare, 829 A.2d 1228, 1232 (Pa.Cmwlth.2003). In this case, the issue is capable of repetition, yet can avoid review, because the condition seems to have been one imposed on Wheeler in previous paroles. Further, it does involve an alleged violation of the "right to marital privacy," a question of public importance. Therefore, we will not dismiss the case on grounds of mootness.
[4] As one federal court has observed:
"Many aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement." Thus, while the basic right to marry survives imprisonment, most of the attributes of marriage cohabitation, physical intimacy, and bearing and raising children do not. "Rights of marital privacy, like the right to marry and procreate, are necessarily and substantially abridged in a prison setting."
Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir.2002), cert. denied, 537 U.S. 1039, 123 S.Ct. 558, 154 L.Ed.2d 462 (2002) (citations omitted) (emphasis in original).
[5] Due to our disposition of this issue, we do not reach the other arguments made by Wheeler or the Board.
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In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED101278
)
Respondent, )
) Appeal from the Circuit Court
vs. ) of the City of St. Louis
)
MARSHALL T. BURRAGE, ) Honorable Margaret M. Neill
)
Appellant. ) Filed: June 30, 2015
Marshall Burrage appeals from the judgment entered after a jury trial on his convictions
for second degree felony murder, attempted delivery of marijuana and armed criminal action.
We affirm.
Burrage and his cousin—a known drug dealer from Kansas City—were driving around
St. Louis one day when Burrage got a call from a person whose friend (hereafter “the victim”)
was interested in purchasing marijuana. Burrage was known to have a connection to people who
sold marijuana, namely his cousin. Burrage asked his cousin the cost for three pounds of
marijuana and then conveyed that information to the person on the phone and told him to have
the victim call Burrage. When the victim called, Burrage confirmed the price, and the victim
agreed to buy three pounds of marijuana for $1950. Burrage expected to get “something” when
the deal was done.
Burrage drove to his house—where his cousin was staying while in town—to retrieve the
marijuana stashed in his cousin’s suitcases. They put the drugs in the vehicle, and Burrage called
the buyers about where to meet. Burrage suggested a couple of places, but ultimately the buyers
wanted to meet in their own neighborhood. Burrage drove to the designated meeting place, and,
as they approached, his cousin slipped into the back passenger seat because he did not want any
of the buyers sitting behind him.
As Burrage pulled up to the meeting spot, there were men waiting. When the vehicle
stopped, the victim walked around the back of the vehicle, got into the front passenger seat and
kept the door propped open with his foot. Burrage and his cousin asked about the money, and
then Burrage noticed one of the other men (hereafter “the victim’s accomplice”) approaching the
vehicle. The victim’s accomplice attempted to get inside the back seat on the driver’s side. At
this point, Burrage also noticed that the victim did not appear to have any money and figured out
that they were going to be robbed. In fact, as it turned out, the victim and his accomplices never
had any intention of paying for the drugs and had always planned to rob Burrage and his cousin.
Burrage saw the victim’s accomplice reach for a bulge at his side and then saw the nose
of a gun. Multiple shots were fired. The victim jumped out, and Burrage drove away. Burrage
heard more shots being fired as they drove away, and the victim’s accomplice was seen on a
surveillance video firing a .45 caliber gun as the vehicle drove away. All of the seven casings
recovered from the scene were .45 caliber and had been fired from the same automatic weapon.
But there was also a copper jacket found at the scene that could have been fired from an
automatic weapon or a revolver. Unlike an automatic weapon, revolvers do not discharge their
casings. Burrage knew his cousin usually carried a big revolver and told police that he believed
his cousin had his gun with him that day; he also said he “probably” fired the gun during the
incident. The victim was later found nearby, having died of a gunshot wound through his back.
The nature of the wound was consistent with either being fired by a person seated behind the
2
victim (which could have been Burrage’s cousin) or by a person off to the victim’s left side
(which could have been the victim’s accomplice).
The jury found Burrage guilty—on a theory of accomplice liability—of attempting to sell
more than five grams of marijuana, armed criminal action and second degree felony murder. On
appeal, Burrage challenges the sufficiency of the evidence on all three counts.
Our review is limited to determining whether there is sufficient evidence from which a
reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v.
Bowman, 337 S.W.3d 679, 688 (Mo. banc. 2011). The evidence is viewed in the light most
favorable to the verdict. Id. The evidence and inferences supporting the conviction are accepted
as true and all contrary evidence and inferences are disregarded “unless they are such a natural
and logical extension of the evidence that a reasonable juror would be unable to disregard them.”
State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We must presume that any conflicting
inferences were resolved in favor of the prosecution and must defer to that resolution. State v.
Chaney, 967 S.W.2d 47, 53 (Mo. banc 1998).
Burrage argues that there was insufficient evidence to support the attempted delivery of
marijuana because he was merely present during the crime. He also contends that there was no
evidence either he or his cousin had a weapon with them, and therefore, the armed criminal
action conviction cannot stand. Finally, Burrage contends that there was insufficient evidence to
support the second degree felony murder conviction because he was not guilty of the underlying
felony and because the victim’s death was a result of his own attempt to steal the drugs, not a
result of the drug deal. We disagree.
First, there was overwhelming evidence of Burrage’s participation as an accomplice in
the underlying felony of attempting to deliver the marijuana. A person is criminally responsible
3
for the conduct of another when “either before or during the commission of an offense with the
purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid
such other person in planning, committing or attempting to commit the offense.” Section
562.041.1(2). Here, Burrage’s accomplice liability is based on his conduct in aiding his cousin
in attempting to deliver a controlled substance. See Section 195.211.1 and Section 564.011.1.
Burrage’s claim that he was “merely present” at the scene of the crime is belied by the record.
“While merely being present before or during the commission of a crime is not sufficient to find
accomplice liability, any affirmative act, even mere encouragement, is enough. Encouragement
is the equivalent of conduct that by any means countenances or approves the criminal action of
another.” State v. Hoosier, 267 S.W.3d 767, 771 (Mo. App. S.D. 2008) (internal citations and
quotation marks omitted).
Here, Burrage was more than just aware of his cousin’s criminal conduct, he was an
active and affirmative participant in the attempt to sell the marijuana. He set up the deal,
speaking to both interested parties on his cousin’s behalf as to amount, price and location for
delivery. He drove to retrieve the drugs, which were stored at his home. He drove to the
delivery location. He stayed in the vehicle when the victim got in and asked him for the money.
He drove himself and his cousin away from the scene after the shots were fired. See id. at 771-
72 (defendant went along to drug transaction, witnessed entire transaction, did not try to stop it
and showed no sign of surprise at what was happening); see also State v. Jones, 296 S.W.3d 506,
510 (Mo. App. E.D. 2009) (defendant knew of robbery and drove accomplice away); State v.
Meuir, 138 S.W.3d 137, 143-44 (Mo. App. S.D. 2004) (defendant helped plan robbery and acted
as driver and lookout). This is sufficient evidence from which the jury could find Burrage guilty
of attempt to deliver a controlled substance.
4
Second, Burrage’s claim that there was no evidence that he or his cousin had a weapon
with them is also belied by the record. Burrage’s own statements to police support the
conclusion that his cousin had the gun he usually carried with him the day of this drug deal and
that his cousin fired it during the attempted commission of the crime. Moreover, the physical
evidence supports the inference that another gun besides the .45 caliber automatic weapon fired
by the victim’s accomplice could have been fired from directly behind the victim, suggesting that
Burrage’s cousin had and used his weapon. Therefore, there was sufficient evidence to support
the armed criminal action conviction on an accomplice theory. See Section 571.015.1.
Finally, there was sufficient evidence from which a reasonable juror could conclude that
the victim’s death was a result of the attempted delivery of drugs. A person commits second
degree felony murder if he “[c]ommits or attempts to commit any felony, and, in the perpetration
or the attempted perpetration of such felony or in the flight from the perpetration or attempted
perpetration of such felony, another person is killed as a result of the perpetration or attempted
perpetration of such felony or immediate flight from the perpetration of such felony or attempted
perpetration of such felony.” Section 565.021.1(2). We use a “foreseeability-proximate cause
concept of homicide responsibility” in felony murder cases. State v. Manuel, 443 S.W.3d 669,
676 (Mo. App. W.D. 2014) (citing State v. Baker, 607 S.W.2d 153, 156 (Mo. banc 1980) and
State v. Moore, 580 S.W.2d 747, 752 (Mo. banc 1979)). The identity of the actual killer is
irrelevant, and a defendant may be responsible for any deaths that are the natural and proximate
result of the crime unless there is an independent intervening cause. Moore, 580 S.W.2d at 752.
Thus, in Moore, a bystander firing a weapon to thwart a robbery—which ended up killing
another innocent bystander—was deemed not to be an independent intervening cause of that
death. Id. at 752-53. Rather, it was foreseeable that a robbery attempt would meet with or
5
provoke resistance, and thus the robbery attempt “set into motion the chain of events” that
caused that death. Id. Thus, those involved in the robbery were also guilty of felony murder.
Likewise, in general “it is foreseeable a death could result [from] an illegal drug deal.”
State v. Blunt, 863 S.W.2d 370, 372 (Mo. App. E.D. 1993). In Blunt, a drug-buyer was shot by
the defendant’s accomplice drug-dealer after she resisted paying for the drugs. Id. This Court
held that the death was a foreseeable result of the drug deal, without addressing whether there
was any evidence that the defendant had been aware of the presence of weapons or expected that
the buyer might try not to pay. Id. Death is a foreseeable part of an illegal drug transaction
because guns are commonly carried and used by participants in drug deals. One reason a person
might bring a weapon to a drug deal is to protect their drugs or their money from being stolen.
Thus, robberies are themselves a foreseeable part of an illegal drug deal as well. Burrage
acknowledged these general realities when he claimed that he did not carry a gun because he did
not feel threatened—even with a valuable amount of drugs in his possession—but admitted that
sometimes things go wrong in a drug deal.
In addition to the general foreseeability of violent robberies as part of any drug deal, there
was specific evidence of foreseeability in this case. Burrage’s cousin brought a weapon to the
drug deal and took measures to make sure no one was behind him by getting into the back seat.
Burrage himself was able to quickly identify that this deal was going wrong when the victim
appeared to have no money and his accomplice approached the car. This suggests that the
robbery was foreseeable to both Burrage and his cousin.
Because the robbery itself was also a foreseeable part of the drug deal, Burrage’s claim
that this was a “robbery gone bad” and not a “drug deal gone bad” has no merit. The
foreseeability of this attempted robbery does not depend on whether or not the buyers ever
6
intended to purchase the drugs. In Manuel, the victim initiated the drug buy and, then upon
suspicion that the drugs were fake, drove away and was shot and killed. 443 S.W.3d at 677. The
court pointed out that whether the victim was “attempting to steal drugs” or “simply became
nervous” that the drugs were fake is “immaterial.” Id. Rather, the attempt to sell the drugs and
the victim’s death “were parts of one continuous transaction, and were closely connected in time,
place and causal relation.” Id. Likewise, in this case, the attempt to sell the drugs and the
victim’s death were part of one transaction, and it is immaterial that the buyer was attempting to
simultaneously steal the drugs. Moreover, the robbery could not have been attempted unless and
until Burrage and his cousin arrived and attempted to sell the drugs. Thus, it cannot be said that
the robbery was independent of the drug deal, such that it relieves Burrage of criminal
responsibility for this death.
In sum, there was sufficient evidence from which a juror could have concluded that the
victim in this case died as a natural and proximate result of the attempt to deliver drugs, a crime
for which there was ample evidence of Burrage’s participation therein. The attempted robbery
during the attempt to deliver the drugs was not an independent intervening cause of the victim’s
death.
All points are denied, and the judgment is affirmed.
ROBERT G. DOWD, JR., Judge
Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.
7
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The Attorney General of .Texas
tbvmbcr 20, 1985
JIM MATTOX
Attorney General
Suprem. Court Building Mr. Lias B. “Bubbl? Steen opieioo no. Jn-361
P. 0. Box 12S4B Executive Director:
Aultin.lx. 79711.2549 ‘. State Purchasing md 80: Conetructioe of Eousc Bill PO.
512M75-2901 General Serviccro Camd.a~loe 1426, Actr 1985, 69th Leg., ch. i22.
T.lPx 9101B74.1~7
P. 0. Box 13047, Capitol Station which authorizes the state to cm-
Telecopier SlU475-0299
Austin, Texu 7lK’ll vey certain rul property in Bexar
Countyby e closed bid procrGure
714 Jackron. Suite 700
Oail~s. TX. 752924509
Dear Mr. Steen:
2tUI42-9944
4924 AItwIa Ave.. Suite 160
El Paso. TX. 799052793 You have arked thir agency to coastme chapter 722. Acts of the
SlY53%34&( Sixty-ninth Lig$elature, 1985, which was eeacfed by House Bill No.
1426 to authorize the conveyance of certain etate-owned real property
l99lTaxas.Suilr 700
in Bexar Couety. You ask the following specific questions:
~ou,ton, TX. 77002~3111
7lY2255999 1. Khat is intended and meant by the require-
ment of I ‘closed bid procedure?’
W5 Broadway.SUN9312
Lubbock.TX. 79401.3479
2. II there a conflict between the provisions
M&747-3239 of rec,::loo 1 of chapter 722 end section 3 of
chapter 7221
4399 N. tenth, Suite B
Mc*ll*n. lx. 7BSol-19BS
3. What procedure lhould be folloved in
512m924947
rolling the property?
It is well mttled that the disposition of ltate-ovned land is a
200 Main Plaza. Suit0 400 matter over which the leglmlature has uclusive control and the paver
San Antonio. TX. 78205.2797 of an agency of the #rate to convey state property my be exercised
512025-4191
only under the l.eglslature’r authorization. See Lorieo v. Crawford
Packing Co. , 175 !i.W.Zd 410, 414 (Tex. 1943); ?&ey v. Daughtars of
An Equal OpPOrtUnitYl the Republic, 1% S.W. 197. 200 (Tex. 1913); Attorney General Opieioea
~fflrmativ~ Aclion Employw J&l49 (1984); MK-,62(1979); C-207 (1964); V-878 (1949). The terms of
legirlative euthwisation for the conveyance of land mua.tbe strictly
complied with. See State v. gasley, 404 S.U.Zd 296 (Tex. 1966);
Wilson v. County ~~Calhoun, 489 S.W.Zd 393 (Tex. Clo. App. - Corpus
Chrleti 1972, n5.t ref’d 0.r.e.); Attorney General Opinions m-242
(1984) ; MU-62 (15’7.9).
IO 1981, tlw leglalature authorized the State Purchasing and
General Services Co~s6100 to lease certain atace-oweed land in San
p, 1741
.
Ur. Liar B. “Bubba” Steen - PeSe 2 (J?i-381)
Aetoeio. Chapter 464, Acts of the Sixty-seventh Legirlature. 1981,
specifies certain proviri~asa of such s luse, including the right of
the lessee to reoeu the lease for a term not to exceed 25 yurs at the
end of the primsty term of the lease. It authorized the comisalou to
include au “option” for the lessee to purchase the property at the
property’8 fair aurkac v&he at the time the optioo is exercised but
expressly epecifiea that wch a purchase is subject to the approval of
the legislature. Acts 1981, 67th Leg., ch. 464. 12(c), at 2073.
Later that year, the comn~.s~slou leased the property for a priuarp tern
of 25 years with the rlghc of the lessee to renew the lease for se
additional 25 yearr. The lease includes permission to. the lessee co
cancel the lease after giving notice and coetelns se “option” to the
lessee to purchase the property at the property’s fair mrket value et
the rime the lessee ccrtlf ies its intent to purchase, if the
legislature approves the purchase. Prior to the 1985 session of the
legislature, the lessee c:ertified its intent to purchase, and House
Bill No. 1426 vaa introduced in that session for the purpose of
obtaining the necessary l.egiolative approval. .We conclude, houever,
that the legislature by the enactment of Eousr Bill No. 1426 did not
approve the sale of the ‘property in questlou to the named lessee at
fair market value. % Acts 1985, 69th Leg., ch. 722. at 5251.
be introduced and aNaIt passed the &use, Rouse Bill No. -1426 .
vould have directed tht State Purchasing and General Services
Ccmaaission to convey tha property to the named lessee at a price
deterabed by the feir mrket velue of the property 011 January 1.
1985. vhich would be lstr~b~llshed by an M41 appraisal. As it fiually
passed the legirlature, ‘Bouse Bill No. 1426 authorized a different
kind of sale. Instead of directing the commiasioe to convey the
’ property to the named lesrme. gouse Bill No. 1426 gives the cocmissloe
the right to convey the property vithout oauieg a specific purchaser.
AB passed, the bill doea oot provide that “the sale price” of the
property vi11 be its fair ,urket value but provides that “the minimum
price of the property” vlLI be its fair aarket value. The firm1 bill
further provides that the sale of the property is subject to a “closed
bid procedure.” As fioally passed, gouse Bill No. 1426 provides that
a conveyance of the propcwty shall not be lo couflict vith the terms
of a lease that wa s luthcwired by chapter 464. Acts 1981, 67th Leg.,
ch. 464, at 2073. Aa introduced, the bill provided that a conveyance
under Eouse Bill No. 1426 would be in lccordeece with the terms of
nuch l lees=.
You. ask if there is a conflict betveee sections 1 and 3 of gousa
Bill No. 1426. We conclude thet the provisions do not conflict.
Section 1 directs that a conveyance shall not coufllct vith the tares
of the lease authorized br chapter 464, Acts 1981, 67th Leg., ch. 464.
Section 3 authorizea the sale of the property under terms and
procedurea that differ faao the terms and procedures in the lessee’s
so-called option to purchme at fair market value In paragraph III (3)
of the lease. We, belimre the optiou in the lease can be uo~c
Mr. Llaa B. “Bubba” Steen a. Page 3 (m-381)
lccurately &scribed as an optiou to seek the legislature’o epprovel
to purchase oa there terms. The legislature vas not obligeted to
approve the lessee’s offer to purchase at fair market value aud did
not grent that approval by the enectuet of Bouae Bill Ilo. 1426.
Instead. the lsgislature exercised itr right to authorize the male of
the property ou different terns. uhich include a bid procedure and
fair market value as a mirdmuxprice. Since the leseee does not have
a right under the leasa to purchase without the legislature’s
approval, e couveyaece under the terms approved by the legislature it
section 3 vould not conflict vlth the terms of the lease. Under gouaa
Bill No. 1426, the co~nlaaiou is l uthorlxed to convey all of the
interest of the state 1.3 the property in question. asauuing the
property is cold not latw: than Decexber 10, 1985, and a purchaser
would take the title of t’wc state but subject to tbe lease contract.
l’he named lessee is not precluded frou submitting a bid as provided by
section 3 of Eouse Bill No. 1426.
You also ask the mc:oeiog of “closed bid procedure” sod vhat
procedure should be followed in selling the property. It is our
opinion that the legislatur:e ioteeds “closed bid procedure” to mean a
procedure under vhich maled bids to purchase the property are
submitted follovieg the publicatiou of uotice that the property is
available for purchase. Competitive bidding la the method frequently
adopted by the leglslatu~rtr. for the sale or lease of property. in
article 5421c-12. V.T.C.S., vhlch la applicable to land wued by a
political subdivirioo of ,thastate, the legislature specifies that
such laud uay be sold by waled bids and at a price not less than fair
uarket value after publj.c:ation of uotfce that the land is to be ’
offered for sale. Sectita. 4.02 of the State Purchasing and General
Semites Act authorizes the comlosioe to lease stata-ovned land under
the comiasioe’s control for agricultural lud c-rcial purposes on
the receipt of bide efter advertising a proposed lease. V.T.C.S. art.
601b. Subsectiou (b) of a~cction 4.02 directu the comisslon to adopt
rule6 sod regulations the!: will. in its judgment, protect the ieterest
of the state and luthorfrtru the coudaaloe to reject soy and all bids.
Id. Section 4.15 of that act authorizes the comission to lease
ccrtaie office space in a state-ovned building by negotlatleg with a
teuant or by selecting a ?euant through a competitive bidding process.
Id. In either case. tta ccmxdaeioo shall follou procedures that
Gte coupetitioe sod Imrotect the ietereata of the state. -m See id.
594.15(b), (f). Sectfoe 9.05 of the aaxie act directs the ccmanlsaioo
to sell certain surplus or salvage personal property owned by the
state by competitive bid o:r euction sod after publication of notice of
the sale If the lstl.ma velue tetlexceeds $1,000. V.T.C.S. art. 601b.
As to purchases to be nude by the State Purchasing and General
Services Commiasioe. as I~rtieguished from aalesr the legislature has
specified that purchases, with certain exceptions, shall be baaed on
competitive sealed bids ef.ter publiahieg notice of the purchases to be
made. -- See id. 613.10, 3.11, 3.12.
p. 1743
Mr. Liar B. “Bubba” Stun - Page 4 (JM-381)
Rouse Bill No. 1426 c~ontains no guidslfnss for bid procsdutss and
publicscion rsquiremnts w be smP1oy.d in the sale of this l pscific
property. It la rsaoonable that ths lsgislaturs intands ths corn-
miesion to protect the interest of the atata. including rejection of
any and all bida. in both ;I luss of atats property under itr control
and in a sale of the property authorizsd by Eourc Bill No. 1426. xn
ths absence of specific guldalinsr for this property, we belisvc the
gsnsral law guidelines pwvfded by the legiolaturs for the sale of
land owned by the ateta% political subdivialons would conetitute
reasonable bid procedures and publication requirsmsata for the Bexar
County property owned by the orate. -See V.T.C.S. art. 5421c-12, 551
and 3.
SUMMARY
House Bill NED.1426 of the Sixty-ninth Legis-
lature dose not g.rant legislative approval to sell
certain Bexar County property owned by the atate
to the -d losses who offered to purchase the
property at felt market value. ,Legislative
authority to sell the propekty by e bid procses
does not confl,Lct with a lsaee provlrion that
permita the 1emlBeeto purchase at fair market
value if the le~:i~slaturs approves such a purchase.
It is the opiniczl of this egency that the legisla-
ture-authorized ,the aale of the proparty~ by coi-
petitivs biddint: which vould protect the intsruts
of the state. such aa the general lav provieiona
for sealed bids and publication of notice of the
rals enacted by the legislature for the aale of
other publicly-mnmsd property. Any aals will be
subject to the,!.aasehold intersat In the property.
Very truly your
J ~LG
JIM
A
MATTOX
Attorney General of Tsxas
MARYKELLER
Executive Assistant Attorney General
ROBRRTGRAY
Spscfal Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comitttii!
p. 1744
Nr. Lies B. "Bubba" Steen - Pegs 5 (JH-381)
. .
prapared by Nancy Sutton
Aaaiatant Attorney Gansral
APPROVED:
OPINION COtNIlTEE
Rick Gilpln, Chairman
Colln Carl
Swan Garrison
Tony Guillory
Jim Noellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1745
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705 F.Supp. 878 (1988)
UNITED STATES of America, Plaintiff,
v.
LOEW'S INCORPORATED, et al., Defendants.
Equity No. 87-273 (ELP).
United States District Court, S.D. New York.
December 12, 1988.
Simon H. Rifkind, Stuart Robinowitz, Gerard E. Harper, Stephen M. Merkel, Paul, Weiss, Rifkind, Wharton & Garrison, *879 New York City, for Warner Communications Inc.
Fred E. Haynes, Asst. Chief, Frederic Freilicher, Professions & Intellectual Property Section, U.S. Dept. of Justice, Antitrust Div., Washington, D.C., for the U.S.
OPINION
PALMIERI, District Judge:
This case is presently before the court on the motion of Warner Communications Inc. and its subsidiary, Warner Bros. Inc., (collectively "Warner") for an order modifying the antitrust consent judgment that has subjected Warner to injunctive restrictions since January 1951.[1] That judgment currently bars Warner, a motion picture producer and distributor, from owning or operating motion picture theatres.
In August 1986, this court provisionally approved Warner's application to purchase a beneficial interest in motion picture theatres, expressing no opinion on the merits of any acquisition and requiring Warner to seek the court's approval pursuant to the consent judgment once the Justice Department had reviewed any proposed acquisition. In addition, the court's order required Warner to hold separately any theatres it might purchase. The present motion concerns a proposed joint venture between Warner and Paramount Pictures, Inc. ("Paramount"), a subsidiary of Gulf + Western Corp. Paramount is not presently barred from the exhibition business and in 1986 acquired beneficial ownership of several theatre chains. Those chains have now been consolidated into Cinamerica Theatres, L.P. ("Cinamerica"), which currently owns and operates approximately 469 screens in 119 theatres. In February 1987, pursuant to this court's 1986 order, Warner provisionally entered into a joint venture with Paramount involving the ownership of Cinamerica. Pursuant to the 1986 Order, Warner's continued participation in the joint venture is conditioned on a showing that such an engagement will not unreasonably restrain competition, and Warner presently "holds separate" its interest in Cinamerica.
After a year-long investigation, the Justice Department declared that it would not challenge Warner's acquisition of a 50% interest in Cinamerica, and the court set the matter down for a hearing which was held March 25, 1988, after a six week notice and protest period. At that hearing, the Justice Department reiterated its determination not to challenge the merger, and appeared to expect the court to accept that determination. This the court was unable to do. The Attorney General's concessions to the court regarding what might be widespread anti-competitive behavior in this industry left open a number of crucial questions that the court felt needed to be answered before the motion could be decided. At the conclusion of the hearing, the court stated:
"I consider the record inadequate because, in my opinion, relevant aspects of the problem do not appear to have been carefully explored or clarified. I respect the conclusions of the Attorney General, but where those conclusions are uttered without a sufficient factual basis I have a right and a duty to question them.
"I do not wish to be placed in a position of making adjudications on an inadequate record. I not only feel constrained to await the report of the Attorney General, which has been promised for the end of this month, but I wish to assess the results of his investigation with respect to the matters which have been raised at this hearing before making any adjudication.
"His unsupported conclusions and his comments, which do not appear to have a demonstrable factual basis, are not persuasive.
"I therefore feel that this hearing should be adjourned sine die and the Court will determine at a later date whether a further hearing is necessary *880 or desirable and what further steps need to be taken in this matter."
This matter requires caution on the court's part. It involves two of the largest distributors in the industry and more than one hundred theatres. An expenditure of over one hundred fifty million dollars is involved. Despite our best efforts, we have been unable to develop an adequate factual record on which to base an effective and long range decision on this motion. In short, Warner has failed to carry its burden of demonstrating that the requested relief will not unreasonably restrain competition. But that is because of gaps in the record which are due to the nature of the Department of Justice's attention to this case. See Part IV, infra. We believe the wise course in this situation is to grant the requested relief on express conditions including requirements that Warner continue to "hold separate" any interest in Cinamerica and that its and Cinamerica's bidding and licensing practices be reviewed by this court at the end of 1989. Hopefully, this will assure a full resolution of the issues raised by the present motion.
I
Background
Commenced in July 1938, just over fifty years ago, this case, United States v. Paramount Pictures, Inc., et al., Equity No. 87-273 (S.D.N.Y.) (hereinafter "Paramount Pictures"), concerned widespread anti-competitive behavior in the motion picture industry. At that time, a few studios, which owned production, distribution and exhibition facilities, dominated and controlled the industry. The eight Paramount defendants[2] regularly accounted for over 65% of the national market for motion pictures. Paramount Pictures, 66 F.Supp. 323, 334 (S.D.N.Y.1946). A three judge court of the Southern District of New York, Circuit Judge Augustus N. Hand presiding, tried the case in October and November 1945. The court found that the defendants had restrained and monopolized the distribution and exhibition of motion pictures in violation of Sections 1 and 2 of the Sherman Act.[3]Paramount Pictures, 66 F.Supp. 323 (S.D.N.Y.), findings entered, 70 F.Supp. 53 (S.D.N.Y.1946), aff'd in part, rev'd in part and remanded, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), on remand, 85 F.Supp. 881 (S.D.N. Y.1949). The defendants engaged in numerous illegal practices: horizontal and vertical price fixing, block booking, and arrangements known as "formula deals," "master agreements" and "franchises." These latter practices involved the distribution of groups of a producer's films to circuits of theatres. The Supreme Court noted that these practices "eliminate the possibility of bidding for films theatre by theatre. In that way they eliminate the opportunity for the small competitor to obtain the choice first runs, and put a premium on the size of the circuit. They are, therefore, devices for stifling competition and diverting the cream of the business to the large operators." Paramount Pictures, 334 U.S. 131, 154, 68 S.Ct. 915, 927, 92 L.Ed. 1260 (1948).
On direct appeal, the Supreme Court affirmed the district court's findings in almost all respects. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). However, the Supreme Court found that the system of supervised competitive bidding designed by the lower court as a remedy would embroil the court too much in the business affairs of the defendants and therefore remanded on the *881 question of an adequate alternative remedy. A series of consent judgments followed.[4] Because this case was actually litigated, the judgments are not consent decrees in the traditional sense. Only the details of relief were negotiated and entered by consent, findings of guilt having been entered and upheld. The integrated companies were required to divest themselves of their theatres. Paramount Pictures, 85 F.Supp. at 895-96.
At the heart of the consent judgments was the licensing injunction, prohibiting the defendants:
From licensing any feature for exhibition upon any run in any theatre in any other manner than that each license shall be offered and taken theatre by theatre, solely upon the merits and without discrimination in favor of affiliated theatres, circuit theatres or others.
Warner Consent Judgment § III(8), 1950-51 CCH Trade Cas. ¶ 62,765, at 64,266.[5]
Additionally, the judgments restricted future acquisitions, the distributor defendants generally being prohibited from engaging in the exhibition business "except that permission ... may be granted by the Court ... upon a showing that any such engagement shall not unreasonably restrain competition in the distribution or exhibition of motion pictures." Warner Consent Judgment § VI(B), 1950-51 CCH Trade Cas. ¶ 62,573, at 64,272.[6]
Since the entry of the consent judgments, a number of changes of significance in the motion picture industry have taken place. For example, the development of the videocassette recorder and the proliferation of cable television networks have added to the potential revenue sources for film makers and distributors. This, in turn, has facilitated the availability of financing for non-integrated participants in the motion picture industry. Moreover, important producers and distributors have come into existence since the judgments were entered, and large national and regional circuits of theatres have developed, due in large measure to the effect of the licensing injunctions in the Paramount judgments.
Distribution on a national or regional level has replaced the system of runs and clearances which this court found unlawful in the 1940s. This form of distribution capitalizes on the benefits of television advertising, which is ineffective without broad distribution in an advertising area.
These are important considerations in the present motion, as far as they go. However, they only partially resolve the issues before the court. The words of Justice Cardozo in United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), ring particularly true here.
There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything *882 has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business [the subject of the decree] as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.
The decree in Swift, entered in 1920, enjoined the five major meatpackers from holding any interest in several lines of business, including the wholesale and retail distribution of other kinds of foods, as to which the defendants' control and domination of the meatpacking industry was thought to give them an unfair competitive advantage. The Court blocked the defendants' attempts to modify the decrees. Of course, every decision whether to modify a consent decree (or as in this case a judgment entered on consent after an adjudication of guilt) "must be based upon the specific facts and circumstances that are presented." United States v. United Shoe Machinery Corp., 391 U.S. 244, 249, 88 S.Ct. 1496, 1500, 20 L.Ed.2d 562 (1968); see New York State Ass'n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 969-72 (2d Cir.1983).
II
The Facts
Warner is a major producer and distributor of motion pictures, and has been since before the 1930s. Over the past fifteen years, Warner's annual national market share of theatrical film rentals fluctuated between 5% and 23%. From 1983 to 1987, Warner achieved market shares between 12% and 19%.[7]
Paramount has also been a major producer and distributor of motion pictures for more than half a century. Over the past fifteen years, its annual national market share has fluctuated between 9% and 24%. Over the last five of those years, its share ranged between 10% and 22%.[8] Paramount owns and operates several chains of motion picture exhibition theatres. After Warner purchased a 50% interest in these theatres, the joint venture became known as Cinamerica Theatres, L.P. ("Cinamerica"). At the heart of this group of theatres is the Mann chain, which operates approximately 356 screens, including nine of the seventeen in Westwood, a section of West Los Angeles, California.[9] The Westwood market is considered by some to be, along with the upper east side of Manhattan, the most important market in the country. It is generally believed that a successful run in Westwood or in the Manhattan east side area foreshadows nationwide success.
Cinamerica also has significant holdings in Fairfield County, Connecticut,[10] and in areas of California, Alaska, New York, Arizona, Colorado, Idaho, Texas, Utah and *883 Wyoming. It controls a monopoly in Durango, Colorado, at least half the screens in eight cities,[11] and at least one-third of the screens in twelve additional cities.[12]
Warner has submitted a proposed order, the most significant provision of which is that "Cinamerica shall be free, without further order of this court, to compete in theatrical exhibition through the construction of new theatres and the expansion or acquisition of theatres." In addition, Warner asks that all limitations on its participation in the day to day management of Cinamerica be removed.
III
The Governing Legal Standards
According to United States v. American Cyanamid Co., 719 F.2d 558, 563-64 (2d Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984), where the language of a consent decree clearly provides a legal standard, the court must abide by that language. Because the consent decree in American Cyanamid was entered in lieu of a trial on the merits of the defendant's guilt, the court held that the decree should be treated where possible as a contract. In contrast to the situation presented in American Cyanamid, this case involves a consent judgment which was preceded by a fully adjudicated finding of guilt affirmed in nearly all respects by the Supreme Court after plenary review. Paramount Pictures, 334 U.S. at 141-61, 68 S.Ct. at 921-31. Application of American Cyanamid must be tempered with an awareness that our duty involves a protection of the public interest which goes beyond a theoretical "contract" between the Government and Warner. Our interpretation and application of the consent judgment must be undertaken with our duty as a court of equity firmly in mind.
The consent judgment provides, in part: [Warner] shall not engage in the exhibition business ... except that permission to [Warner] to engage in the exhibition business ... may be granted by the Court upon notice to the Attorney General and upon a showing that any such engagement shall not unreasonably restrain competition in the distribution or exhibition of motion pictures.
Warner Consent Judgment § VI(B), 1950-51 CCH Trade Cas. ¶ 62,765, at 64,272. This language places the burden of persuasion squarely on Warner and even then allows the court discretion whether to grant permission. We do not read this language to preclude the court's ability to continue supervision over Warner or Cinamerica, if the present motion is granted. Warner contends that the consent judgment provides the court with one and only one opportunity to decide whether Warner may engage in the exhibition business under the consent judgment, and that once permission is granted the court relinquishes all supervisory power. The court's power as a court of equity is not so limited. Nothing in the language of the consent judgment purports to terminate the court's power at the conclusion of a single proceeding. Such a limitation would render ineffective the court's ability to protect the public interest. In light of Warner's inability to carry its burden under the consent judgment in the present motion, see Part IV, infra, it would appear equitable to allow Warner to participate in the joint venture subject to continuing supervision.
Although the operative language of the judgment is modeled on the Sherman Act, the motion here involves vertical integration, and we apply the standards developed under Section 7 of the Clayton Act, 15 U.S.C. § 18 (1982). Cf. American Cyanamid, 719 F.2d at 566. In particular, Fruehauf Corp. v. FTC, 603 F.2d 345, 353 (2d Cir.1979), summarizes the relevant criteria in determining whether to permit integration.
Most important among the factors are the nature and economic purpose of the *884 arrangement, the likelihood and size of any market foreclosure, the extent of concentration of sellers and buyers in the industry, the capital cost required to enter the market, the market share needed by a buyer or seller to achieve a profitable level of production (sometimes referred to as "scale economy"), the existence of a trend toward vertical concentration or oligopoly in the industry, and whether the merger will eliminate potential competition by one of the merging parties. To these factors may be added the degree of market power that would be possessed by the merged enterprise and the number and strength of competing suppliers and purchasers, which might indicate whether the merger would increase the risk that prices or terms would cease to be competitive.
Finally, we take note of the admonition of the Court in American Cyanamid, 719 F.2d at 567, that it is "error to apply `contemporary economic theory' to the extent it may be distinct from precedent, and to fail to apply the standard [Fruehauf] framework of analysis...."
Although dressed up in Fruehauf's clothes, much of Warner's argument derives from theoretical speculations about human behavior which the court finds unpersuasive. It is almost a leitmotif running through the affidavits and memoranda that the threat of prosecution under the antitrust laws and the fear of litigation by other parties involved in the motion picture industry will be sufficient to assure that no anti-competitive behavior will ensue from this acquisition. That line of reasoning is specious. These consent judgments were fashioned after years of litigation in which this industry was shown to have a proclivity for anti-competitive behavior. If the specter of criminal prosecution and civil litigation were a sufficient prophylactic for antitrust violations, the consent judgments in this and many other cases would never have been necessary. Warner will have to present far more persuasive grounds for what is tantamount to the effective dismantling of these judgments. See United States v. Swift & Co., supra, 286 U.S. at 119, 52 S.Ct. at 464. Warner cannot do by indirection what it cannot do directly.
IV
Assessment of Warner's Application
Application of the relevant criteria convinces the court that the proper course is to approve the acquisition so long as Warner continues to hold its Cinamerica interests separately, and provided there is a review of the situation in a year's time in order to assess compliance with the letter and spirit of the consent judgment governing Warner.
A. The Business Purpose of the Acquisition.
An important factor in assessing a potential merger is whether it is motivated by a legitimate business purpose. Brown Shoe Co. v. United States, 370 U.S. 294, 329, 82 S.Ct. 1502, 1526, 8 L.Ed.2d 510 (1962); Fruehauf, supra, 603 F.2d at 359. Here, Warner claims it "wishes to be able to compete on an equal footing with its principal rivals." It also asserts that it is presented "with an attractive opportunity to diversify in an area closely related to other core areas of our business." This would allow Warner to diversify against the risks inherent in motion picture production and distribution essentially a volatile business. Entry into exhibition would give Warner "the opportunity to share some portion of the profits on the successful films of other distributors." Finally, according to Warner, entry into exhibition would reflect "our long-term commitment to the theatre business" because of the fact that "box office success can be tremendously important to the success of a film in home video sales, pay cable, and television."
The last two of these reasons diversification and demonstration of commitment to the film industry appear entirely legitimate. But they do not require sweeping and permanent exemptions from the consent judgments. Most important, these purposes are best served by continued adherence to the requirement that films be licensed theatre by theatre, solely upon the *885 merits, and without discrimination in favor of affiliated theatres, circuit theatres or others. In addition, the goals of diversification against risk and demonstrating commitment to the industry, while legitimate, may be served without Warner having a day to day hand in the operation of Cinamerica. Indeed, much of Warner's argument that no anti-competitive effects will ensue from this acquisition is premised upon the independence of Cinamerica's management. Furthermore, no specific business purpose has been asserted which necessitates diminished independence of Cinamerica's management. This counsels us to allow Warner continued ownership in Cinamerica but to maintain the provisions of the court's 1986 order which guarantee Cinamerica's independence from Warner.
The other asserted business purpose that Warner would like to compete on an equal footing with others in the industry is somewhat ambiguous. Warner could be implying that it cannot compete as a producer and distributor without complete vertical integration. Warner repeatedly refers to the existence of other vertically integrated companies in this industry. But if Warner is arguing that its continued viability in this industry is impossible without vertical integration, much of its argument that the acquisition will not add to potential foreclosure of competitors would be meaningless.
Instead, we believe Warner to be arguing that if it is permitted to enter the exhibition business, it should be free to acquire theatres without court approval. It is true that expansion is an important business consideration. However, we are not prepared to say that expansion without limitation, in these circumstances, is appropriate. For many years, this court was required to approve every theatre which was built or sold. Modifications of the judgments have made that task unnecessary. On the other hand, this is a concentrated industry in which there has been a recent trend toward vertical integration which appears significant. There also appears to be a climate of non-compliance with the heart of the consent judgments that films be licenced theatre by theatre, solely on the merits and without discrimination. The court has repeatedly expressed concern about this problem and the Attorney General has not as yet provided the court the results of his investigations. Given these factors, the court is unwilling to relinquish all supervision. Nor is continued supervision of Warner's participation in this joint venture inconsistent with a program of expansion. We will therefore require Warner to maintain its holdings in Cinamerica separately. More problematic is the question of the appropriate degree of court supervision of expansion by Cinamerica, which is taken up in Part V, infra.
B. The Likelihood of Foreclosure of Access to Film Product or Exhibition Space.
An important consideration is the likelihood that foreclosure of access to film product or exhibition space might be caused by the proposed acquisition. Brown Shoe, supra, 370 U.S. at 328-29, 82 S.Ct. at 1525-26; Fruehauf, supra, 603 F.2d at 352 & n. 9. Generally, this is an assessment of the probability that supply or demand for the product will diminish as the result of the acquisition, potentially harming competition. An examination of exhibition and distribution is required. We are not sure what to make of the requirement in Fruehauf that the likelihood of actual foreclosure as well as the potentiality of foreclosure be considered. Fruehauf, 603 F.2d at 352-53. Counsel for Warner would have us engage in speculation about human behavior in general and the behavior of their clients in particular. This is too nebulous a task for a court to undertake. Suffice it to say that this industry has shown a proclivity for anti-competitive behavior when given the opportunity and that there is (as yet unspecified) evidence of a climate of non-compliance with this court's consent judgments. We do not believe that the mere existence of the antitrust laws and the presence in the industry of parties with adverse interests is enough to permit us to sit back and allow the dismantling of the consent judgments.
*886 Beyond that, we look to the potential for foreclosure in the relevant markets exhibition and distribution. We are concerned with the possible adverse effects in the event that Warner and Paramount distribute only to Cinamerica, or that Cinamerica exhibits only Warner and Paramount films. If only a small segment of a market is controlled by these firms and they decide to "foreclose" others, no significant effect on competition will ensue. Instead, a realignment will take place, the exhibitors which had been supplied by Warner and Paramount now exhibiting other distributors' product, and the distributors who had used Cinamerica's theatres now distributing films elsewhere. See Fruehauf, 603 F.2d at 352 n. 9. On the other hand, at some point the market presence of the new vertically integrated company becomes great enough that the potential anti-competitive effects become a significant concern. See Brown Shoe, supra, 370 U.S. at 328-29, 82 S.Ct. at 1525-26. In Fruehauf, the court did not address the limits at which this concern becomes prohibitive.
Warner argues that only 2-3% of the national exhibition market is affected by this purchase. According to Warner, the acquisition is such a small part of the national market that the potential for foreclosure is de minimis. Warner correctly points out that the comparable market share of the purchasing (or "downstream") firm in Fruehauf was approximately 3-6%. However, in this case the proper mode of analysis also requires the assessment of the relevant local markets. Many of Cinamerica's theatres have a substantial market share of local markets. In addition, this acquisition will leave many of the local markets with sizeable percentages of the market controlled by integrated exhibitors. Although they will remain integrated whether or not Warner participates in the joint venture, the potential for abuse of market power by this joint venture is increased by Warner's participation. And that potential would be increased further by additional integration of other firms. For these reasons, we are unwilling to give a final blanket approval to Warner's participation in the joint venture.
Many of the local markets would be left with 30-40% of the market controlled by integrated exhibitors. We believe this to be significant. This is an important reason why we feel obliged to require that Warner hold separately its interests in Cinamerica and that Cinamerica be subject to some supervision by the court.
Several areas in particular are problematic: Westwood, California, and Fairfield County, Connecticut, are both areas in which Cinamerica has a significant presence, along with other integrated exhibitors. In addition, Cinamerica controls 50% or more of the screens in nine smaller cities. Finally, Cinamerica operates one theatre in Manhattan, where much of the market is integrated. The concentration and integration in all of these areas present a temptation for abuse of market power. The court's continued participation in this case is, for that reason, desirable. Nonetheless, we do not believe that any of the theatres in these areas need be divested by Cinamerica. The injunctive restraints of the consent judgments on licensing, along with the court's review of Cinamerica's bidding and booking practice and any expansion it undertakes, will be sufficient restraint on the potential for abuse of market power. Were it not for these restraints, we would not feel justified in granting the motion.
In Westwood, Cinamerica operates nine of seventeen screens. Westwood is, along with Manhattan, the most important market. A successful run in Westwood often precedes a successful nationwide release and the videocassette, cable, foreign, and television profits which ensue. Much of Westwood's importance lies in the nature of the movie audience there members of the film industry and important critics. The same is true of the upper east side of Manhattan.
Warner makes a persuasive argument that the dominance of the Westwood screens in West Los Angeles has been diminished by an invasion of nearby theatres. The most significant new entrants are in Century City, a development on the former back lot of Twentieth Century-Fox, which *887 lies at Westwood's south eastern edge. AMC, a national theatre chain, established fourteen new screens there in 1987. In addition, Cineplex Odeon, another national chain, expanded its theatre from two to four screens. These sixteen new screens have combined with a recent addition of upscale shops and restaurants to divert business away from the Westwood theatres, according to Warner. Additionally, Cinamerica's box office grosses at its nine Westwood screens have declined approximately 20% in the last year,[13] a decline Cinamerica attributes primarily to the entry of the sixteen new screens in Century City. Taking Westwood and Century City as a single area and ignoring the extraordinary growth of theatres in West Los Angeles, even within ten miles of Westwood Cinamerica holds a significant position, but no longer has such complete dominion and control. The Westwood area, long an exhibition area of great importance to the film industry, appears in a state of flux. While continued supervision of Cinamerica is appropriate, we do not wish to hobble the company with undue restrictions. We believe the discussion in Part V, infra, strikes an appropriate balance between the needs of competition as protected by the consent judgments and of Cinamerica as a competitor in Westwood.
Cinamerica operates twenty one screens in Fairfield County, Connecticut. Warner has, for purposes of analysis, divided this area into North Fairfield County and a second area comprised of South Fairfield County and East Westchester County, New York (which is adjacent to Fairfield). The Justice Department accepts this division, but its reasoning for doing so is unclear. Warner asserts that all the theatres in South Fairfield and in East Westchester advertise in the same local newspaper. But there is no evidence in this case that this newspaper's readership is the appropriate gauge of the market for motion picture viewing. We are left without any way to make an independent assessment of the composition of the relevant local market, and without any way to evaluate the concentration in this market should we remain unpersuaded by Warner that its definition of the market is the correct one. This kind of gap, often resolved in the crucible of an adversary proceeding, leaves us without the ability to make an independent assessment of the dangers of concentration in this area an area which the Justice Department identifies as containing more integrated firms, and thus presenting more potential for foreclosure of product, than any other local market. In light of our inability to determine the potential for foreclosure in this area or even to determine the appropriate market we believe the solution we have outlined, calling for continuing supervision of Cinamerica's practices, is equitable.
The Justice Department identifies several other areas where Cinamerica and other integrated firms operate. The potential for foreclosure of product in these areas runs between thirty and fifty percent. In other words, if all the vertically integrated exhibitors in these areas refused to deal with any distributors but their own, the available theatre space would diminish by thirty to fifty percent. Similarly, the available product would diminish. According to the Justice Department, these figures are too low to realistically threaten competition. We disagree. The potential for foreclosure presented by this case is in line with that found unlawful by the Supreme Court in Brown Shoe. Again, however, this problem is attenuated by the applicability of the licensing injunctions, the court's continued supervision and the "hold separate" order.
Finally, the upper east side of Manhattan, where Cinamerica owns one screen, has been identified as "the most important market because of the concentration of nationally *888 influential film critics and news media." K. Harris, Independents Squeezed in N.Y. Movie Market, Los Angeles Times, pt. IV, at 1 (January 3, 1988). Although Cinamerica has only one screen in Manhattan, serious and troubling allegations have been made about the abuse of market power by theatre owners in this area. Exhibitors and distributors who deal exclusively with each other are said by the Justice Department to have formed "track relationships" and "marriages."[14] The Justice Department has been quoted as taking the position that these relationships do not violate the antitrust laws, id. at 4, and has not informed the court of the details of its investigations about these allegations. Again, we are left without the ability to come to an independent judgment about the validity of this point of view.
In sum, the areas in which Cinamerica is engaged in exhibition are areas where there is a potential for foreclosure of access to screen space and other anti-competitive behavior. The court is unable independently to evaluate the situation, for lack of evidence and extended analysis by the Justice Department. Given that situation, it would be inappropriate to grant Cinamerica carte blanche to expand. On the other hand, it would be unfair to block the acquisition altogether, for we are not presented with the full picture.
The same logic applies when we assess the potential for foreclosure of exhibitors' access to film product. Warner and Paramount together comprise approximately 30% of the national market in distribution. A decision by these two distributors to restrict the availability of their product would have a very significant impact on exhibitors, and would almost certainly harm competition. In contrast, the supplier in Fruehauf accounted for approximately one half of one percent of total sales to manufacturers other than Fruehauf. Fruehauf, supra, 603 F.2d at 354. We cannot ignore the potential for abuse of market power should Cinamerica expand to the point where it could adequately handle a significant portion of Warner's and Paramount's output. Cinamerica, with 2% or even 3% of the nation's screens, is currently in no position to do so. And with Warner and Paramount still dependent on their relationships with unintegrated circuits, there is a convincing argument that it is not in Warner's interest to attempt foreclosure today. Nonetheless, the potential for abuse is so great that the court cannot in good conscience allow this joint venture to be relieved of all supervision for all time.
C. The Degree of Concentration.
Another factor of some importance is the degree of concentration in the industry. Several methods can be used to quantify concentration in an industry. Traditionally, the courts calculated the "four firm" and "eight firm" concentrations a simple addition of the market shares of the largest four or eight firms in the industry. Thus in Brown Shoe, supra, 370 U.S. at 300, 82 S.Ct. at 1510, the Supreme Court found a four firm concentration of 65% to be significant support in its decision to bar a proposed vertical integration. In Fruehauf, the court also found a significant degree of concentration. The four firm figure was approximately 65-71%, and the eight firm concentration, 93-95%.[15] And in FTC v. Warner Communications Inc., 742 F.2d 1156, 1163 (9th Cir.1984), the Ninth Circuit reversed the denial of a preliminary injunction to block a horizontal merger in the recording industry, finding a significant degree of concentration in this industry: the four firm concentration was 67%, which would have been 75% post merger.
The four firm concentration of distributors in this industry, by our calculations *889 taken from figures supplied in the record,[16] has ranged between 53% and 69% since 1982.[17] Similarly, the eight firm concentration during that period has ranged between 83% and 96%. The Justice Department has since 1982 preferred the use of the Herfindahl-Hirschman Index (HHI) to quantify industry concentration. See 1984 Merger Guidelines, reprinted in CCH Trade Reg. Rep. ¶ 13,103 (1988); 1982 Merger Guidelines, id., ¶ 13,102. The HHI is calculated by adding the squares of the individual market shares of all firms in an industry. Ibid. Under the HHI, a quantification of over 1000 is considered by the Justice Department to reflect moderate concentration, and it considers a figure of over 1800 to reflect a high degree of concentration. We have found no explanation in the guidelines or in the literature for the choice of these cutoff points aside from the Justice Department's statement in the Guidelines that "[a]n empirical study by the Department of the size dispersion of firms within markets indicates that the critical HHI thresholds at 1000 and 1800 correspond roughly to four-firm concentration ratios of 50 percent and 70 percent, respectively." 1984 Merger Guidelines § 3.1, reprinted in CCH Trade Reg. Rep. ¶ 13,103, at 20,560 (1988). The HHI for distributors in this industry since 1982 has ranged between 1067 and 1645.
Exhibition could not be said to be concentrated on a national scale. According to the 1987 Encyclopedia of Exhibition (see Exhibit 17 to the Affidavit of Terry S. Semel, sworn to January 27, 1988), there were approximately 22,000 screens in the United States in 1987. The holdings of most of the largest exhibitors are set out in the Affidavit of Maurice Silverman, sworn to January 11, 1988, pp. 11-12. The four largest together control approximately 5,400 screens, or 24% of the national market. The eight firm concentration appears to be about 30%, and the HHI, less than 200. On the other hand, there is significant concentration in some of the areas where Cinamerica operates. As we have noted above, Cinamerica controls half or more of the screens in nine local areas.
This transaction is thus one in which there is significant concentration at both the exhibition and distribution levels. As we have noted, anti-competitive behavior on the part of Warner and Paramount could have a devastating effect on the industry. The fact that this acquisition will not increase concentration is also significant. It counsels toward allowing the acquisition. See Fruehauf, supra, 603 F.2d at 359. But other factors, including the already high degree of concentration in the industry, counsel toward continuing supervision of Warner's participation in the joint venture.
D. Barriers to Entry.
Warner represents that financial barriers to entry are minimal. The Justice Department disagrees with Warner's representations but does not consider this a significant factor. We accept the factual representation of the Justice Department, but disagree as to the appropriate interpretation to be made of this factor. The Justice Department persuasively argues that the ability of outsiders to acquire goodwill in the industry is very limited. Without that ability, supposedly easy financing would be meaningless. As the Ninth Circuit noted in a similar context the recording industry, "the [FTC] presented evidence showing the difficulty of entering the distribution market due to high capital costs, lack of expertise, inability to attract top performers, disadvantages in obtaining radio air play and point of sale promotion, and inability to demand and receive payment from retailers *890 on an equal basis with established distributors." FTC v. Warner Communications Inc., 742 F.2d 1156, 1163 (9th Cir.1984). In contrast to the situation here, the FTC in Fruehauf presented no evidence that existing barriers would be increased by the merger. Fruehauf, supra, 603 F.2d at 359. The barriers to entry here support our decision to continue our supervision of this aspect of the industry. If anything, they counsel toward disallowing the acquisition. Indeed, it is possible that if more firms are permitted to integrate vertically, barriers to entry will increase.
E. Existence of a Trend Toward Vertical Integration.
The trend toward vertical integration in this industry is very significant. It has been a matter of some discussion in the press and of great concern to the court. Indeed, Warner's eagerness to "compete" on an equal footing with industry rivals who own theatre chains is especially troubling. It is this factor, as much as any, which leads us to a path of caution. Brown Shoe, supra, 370 U.S. at 332-34, 82 S.Ct. at 1527-29. In Fruehauf, no evidence of a trend was presented. Here, in contrast, in the past two years, many distributors have plunged into exhibition. Paramount acquired what has become Cinamerica in 1986. Tri-Star pictures, which has merged with Columbia, acquired the Loew's theatre circuit, consisting of approximately 470 screens, and Universal owns a 50% interest in Cineplex Odeon, with approximately 1650 screens. Together, integrated circuits now account for about 10% of the nation's screens, up from none in 1980.
Warner puts forth much evidence that exhibition in small towns with high concentration does not display oligopolistic behavior. While this is relevant, it is not dispositive. It says nothing about larger cities, where most of the distributors have established exhibition presences. It says nothing about areas where there appears to be anti-competitive behavior.
In addition to actual integration, the Justice Department has indicated that there is evidence of exclusive dealing alliances among exhibitors and distributors. While not revealing the details of its investigations to the court, the Justice Department has observed this behavior, which it terms "customer selection," or, more euphemistically, "relationships," "marriages" or "tracks." The Justice Department agrees at least that "split agreements," whereby exhibitors divide up the available product, are per se unlawful. United States v. Capitol Service, Inc., 756 F.2d 502, 506 & n. 1 (7th Cir.), cert. denied sub nom. United Artists Communications, Inc. v. United States, 474 U.S. 945, 106 S.Ct. 311, 88 L.Ed.2d 288 (1985). There appears to be continued anti-competitive behavior by exhibitors and distributors in this industry. See Letter from Fred E. Haynes of the Antitrust Division to Hon. Edmund L. Palmieri (March 30, 1988) (filed as Exhibit 1 to the Affidavit of Daniel R. Fellman, sworn to on May 13, 1988). On December 2, 1988, Twentieth Century-Fox Film Corporation, a defendant in the Paramount litigation, see supra note 2, and a manager of its Indianapolis-Milwaukee-Minneapolis branch office were convicted of criminal contempt, 18 U.S.C. § 401(3). The defendants were found to have engaged in block booking in repeated instances of violation of Section II(7) of the applicable consent judgment restraining the entering into any license "in which the right to exhibit one feature is conditioned upon the licensee's taking one or more other features." Block booking was one of the illegal practices sought to be eradicated by the Paramount decrees. See supra p. 880.
It appears that some distributors and exhibitors have either formally or informally agreed to divide up the local markets. Not only does this kind of behavior fly in the face of the requirement of all the consent judgments that films be licensed theatre by theatre, solely upon the merits and without discrimination, but it raises troubling and serious questions as to the vigor with which the antitrust laws are being enforced. While it would be inappropriate to speculate on the legal consequences of facts not before the court, we find this apparent climate of noncompliance with the *891 Paramount decrees and with the antitrust laws to be fraught with serious problems. We cannot allow that climate to go unchecked and unsupervised, and we can see no reason why Warner's participation in the joint venture will be unduly harmed by such supervision.
V
Supervision of Cinamerica
Warner makes the extravagant claim, without any refutation or comment by the government, that no supervision of Cinamerica is necessary because of the existence of the Hart-Scott-Rodino Antitrust Improvements Act of 1976[18] ("H-S-R"). The pertinent part of that statute, 15 U.S. C. § 18a (1982 & Supp. III 1985), establishes, according to the House Report, "premerger notification and waiting requirements for corporations planning to consummate very large mergers and acquisitions. The [act] in no way alters the substantive legal standard of [the Clayton Act]." H.Rep. No. 1373, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Admin.News 2572, 2637, 2637. Because H-S-R is purely procedural in nature and does not necessarily affect the obligations of Warner and Cinamerica, it cannot serve as a justification for diminishing the effectiveness of the Warner consent judgment. See Swift & Co., supra. Congress passed H-S-R to give "the government antitrust agencies a fair and reasonable opportunity to detect and investigate large mergers of questionable legality before they are consummated." H.Rep. No. 1373, supra, at 5, 1976 U.S. Code Cong. & Admin.News at 2637. Congress' purpose was to permit the authorities to take enforcement measures in good time and while such measures could still be effective. Warner contends that H-S-R can serve as an adequate substitute for court supervision of the Paramount decrees. But the consent judgment itself contemplated continued court supervision in this industry, providing that
[j]urisdiction of this cause is retained for the purposes of enabling any of the parties and their successors to this consent judgment, and no others, to apply to the Court at any time for such orders or direction as may be necessary or appropriate for the construction, modification or carrying out of the same, for the enforcement of compliance therewith, and for the punishment of violations thereof, or for other or further relief.
Warner Consent Judgment § XI(B), 1950-51 CCH Trade Cas. ¶ 62,765, at 64,275. It would be inconsonant with our continuing duty under this judgment to relegate to the Justice Department the sole responsibility for supervision of a company found to have violated the antitrust laws and currently restrained by an elaborate antitrust injunction. Swift & Co., supra.
Furthermore, Warner's reliance on H-S-R as a supposedly adequate substitute for continued court supervision, in light of our discussion in Part IV, supra, is unjustified. The consent judgment requires review and supervision on a far more encompassing scale than does H-S-R, which applies only to the "very largest" mergers. H.Rep. No. 1373, supra, at 11, 1976 U.S. Code Cong. & Admin.News at 2643. In contrast to the limited application of H-S-R, the consent judgment anticipates a broad review by the court, and in the circumstances of this motion, of Warner's conduct and of non-merger expansion on the part of Cinamerica.
Finally, Warner's argument ignores a problem which this motion in fact highlights. H-S-R serves only as an enforcement tool for the antitrust agencies. The Department of Justice at times countenances a higher level of anti-competitive behavior than do the courts. When that is the case, H-S-R provides little recourse to the aggrieved consumer or competitor, for proceedings pursuant to H-S-R are necessarily secret. Indeed, even state attorneys general, who have assumed a wider antitrust enforcement role in recent years, are not allowed access even on a confidential basis to filings under H-S-R. Lieberman v. FTC, 771 F.2d 32, 37-40 (2d Cir. 1985). In contrast, proceedings under the *892 consent judgments are held in open court and on a public record, frequently after a published protest period designed to afford a forum to persons who consider themselves aggrieved.
Unfortunately, the Department of Justice has, in the recent past, devoted enforcement resources to areas other than the judgments which have governed the motion picture industry since the early 1950s. In responding to the present motion, it has not informed the court of the relevant facts beyond the broadest outline, and the adjudication of this motion has been delayed in order to permit the Justice Department to submit a report requested by the court on its factual investigations.[19] We understand that the staff of the Antitrust Division has been cut by 50% and that it must make choices with respect to its enforcement priorities. But whatever the reason may be, we deplore this lamentable state of affairs which denies the court the full benefits of the adversary process in an important area of the law.
This leaves us with the difficult question of the appropriate degree of supervision for Cinamerica. One possibility is a numerical or percentage limitation on Cinamerica's expansion without court approval. Maurice Silverman, who represented the Government for many years in matters relating to the Paramount decrees, before becoming an independent consultant for Warner, makes a persuasive argument that such limitations would be unwise. They could be construed as presumptive evidence that an acquisition involving less than the numerical limitation would not unreasonably restrain competition. Under certain circumstances, even a small acquisition can have an unlawful effect on competition.
Mr. Silverman also argues persuasively against a requirement of authorization of every expansion by Cinamerica. This would place an undue burden on Cinamerica, on the government, and on the court as well. Cinamerica would also be placed at a disadvantage in bidding for theatres or sites. In addition, the Antitrust Division, already too thinly staffed to cover all its bases effectively, is hardly in a position to review every expansion by Cinamerica.
We are unpersuaded, however, by Mr. Silverman's proposed solution to "leave it to the application of the antitrust laws." We believe more is needed. We believe Cinamerica needs the protection of a "hold separate" order. In addition, a review by the court of Cinamerica's expansion, in the context of the local markets in which it operates, as well as a review of its bidding and booking practices, appears to us to be the best way of implementing the court's continuing duty pursuant to the consent judgments without placing an undue burden on Cinamerica or on the court.
VI
Conclusion
We believe that the motion should be granted in part, but accompanied by a restrictive modification of the consent judgment including a continuation of the "hold separate" order and the requirement that all pictures be licensed theatre by theatre, solely upon the merits and without discrimination in favor of affiliated theatres, circuit theatres or others, and a review of Warner's and Cinamerica's licensing and expansion practices, to be held in the fall of 1989, at which time Warner will be expected to show why its continued ownership and operation of theatres is not anti-competitive under the consent judgments.
An appropriate order is filed herewith.
*893 APPENDIX
CONCENTRATION IN THE MOTION PICTURE INDUSTRY
1970-1987[*]
--------------------------------------------------------------------------------
| ----------- ----------------- ------------------- ------------------------- |
|| || Four Firm || Eight Firm || Herfindahl-Hirschman ||
|| Year || Concentration || Concentration || Index ||
| ----------- ----------------- ------------------- ------------------------- |
| ----------- ----------------- ------------------- ------------------------- |
|| 1987 || 57 || 83[1] || 1067 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1986 || 53 || 84 || 1068 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1985 || 55 || 89 || 1116 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1984 || 66 || 91 || 1337 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1983 || 66 || 93 || 1416 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1982 || 69 || 96 || 1645 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1981 || 60 || 86 || 1174 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1980 || 66 || 93 || 1373 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1979 || 65 || 94 || 1318 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1978 || 67 || 99 || 1495 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1977 || 64 || 96 || 1360 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1976 || 60 || 90 || 1156 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1975 || 63 || 94 || 1374 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1974 || 63 || 93 || 1339 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1973 || 56 || 86 || 1066 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1972 || 64 || 86 || 1254 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1971 || 48 || 71 || 761 ||
||-----------||-----------------||-------------------||-------------------------||
|| 1970 || 58 || 84 || 1066 ||
| ----------- ----------------- ------------------- ------------------------- |
-------------------------------------------------------------------------------
NOTES
[1] The original consent judgment, entered January 4, 1951, is reported at 1950-51 CCH Trade Cas. ¶ 62,765.
[2] The eight Paramount defendants were Paramount Pictures, Inc., Twentieth Century-Fox Film Corporation, Loew's Incorporated, Radio-Keith-Orpheum (RKO), Warner Brothers, Columbia Pictures Corporation, Universal Pictures Corporation, and United Artists (many of their subsidiaries were also defendants). Columbia, Universal and UA were not fully integrated: Columbia and Universal engaged only in production and distribution, and UA only in distribution. These three companies were thus considered the three "minors" and the others the five "majors". As a result of the winding up of RKO and the merger of UA with M-G-M (the successor to Loew's), there are now six surviving Paramount defendants.
[3] The Sherman Act is currently codified, as amended subsequent to entry of the consent judgments, at 15 U.S.C. § 1 et seq. (1982).
[4] The judgments in their original forms are reported as follows:
RKO: 1948-49 CCH Trade Cas. ¶ 62,335;
Paramount: 1948-49 CCH Trade Cas. ¶ 62,377;
Columbia, Universal and UA: 1950-51 CCH Trade Cas. ¶ 62,573;
Warner: 1950-51 CCH Trade Cas. ¶ 62,765;
Twentieth Century-Fox: 1950-51 CCH Trade Cas. ¶ 62,861;
Loew's: 1952-53 CCH Trade Cas. ¶ 67,228.
When Paramount and RKO entered into their respective consent judgments, the action was severed and terminated as to these defendants. See United States v. Loew's Inc., 1950-51 CCH Trade Cas. ¶ 62,573, at 63,677. Thus, since 1950 the action with respect to the remaining defendants, including Warner, has been captioned "United States v. Loew's Inc." rather than "United States v. Paramount Pictures, Inc."
[5] Accord Loew's Consent Judgment § II(8), 1952-53 CCH Trade Cas. ¶ 67,228, at 67,327; Fox Consent Judgment § II(8), 1950-51 CCH Trade Cas. ¶ 62,861, at 64,546; Columbia, Universal and UA Consent Judgment § II(8), 1950-51 CCH Trade Cas. ¶ 62,573, at 63,678; Paramount Consent Judgment § II(8), 1948-49 CCH Trade Cas. ¶ 62,377, at 63,011.
[6] Accord Loew's Consent Judgment § III(7)(b), 1952-53 CCH Trade Cas. ¶ 67,228, at 67,328 ("will not unduly restrain competition"); Fox Consent Judgment § III(7)(b), 1950-51 CCH Trade Cas. ¶ 62,861, at 64,547 (same); Paramount Consent Judgment § III(6)(b), 1948-49 CCH Trade Cas. ¶ 62,377, at 63,012 (same); RKO Consent Judgment § III(6)(a), 1948-49 CCH Trade Cas. ¶ 62,335, at 62,866 (same).
[7] Variety Annual, p. 38 (January 20, 1988).
[8] Ibid.
[9] The Mann Theatre Chain includes a number of theatres which were owned by Twentieth Century-Fox before the entry of the consent judgments. The remaining injunctive restrictions on Mann are due to expire in 1990. See United States v. Paramount Pictures, Inc., 1980-2 CCH Trade Cas. ¶ 63,553, at 76,951 to 76,952.
[10] According to Warner's submissions, Cinamerica operates 15% of the screens in a market it defines as including Southern Fairfield County as well as Eastern Westchester County, New York, although Cinamerica has no holdings in Westchester. We cannot deduce what Cinamerica's holdings are in Fairfield alone from the submissions of the parties.
[11] Boulder, CO. (11 of 22 screens); Provo, UT. (10 of 19); Laramie, WY. (2 of 4); Contra Costa, CA. (21 of 32); Stockton, CA. (9 of 16); San Luis Obispo, CA. (11 of 20); Valencia/Newhall, CA. (10 of 15); and Visalia, CA. (6 of 11).
[12] These include Denver, CO. (66 of 183); Fresno, CA. (16 of 41); Lubbock, TX. (8 of 21); and Modesto, CA. (10 of 23).
[13] For the six months ending April 3, 1986, the theatres' gross receipts were $5.180 million, and for the six months ending April 2, 1987, they were $4.996 million. In contrast, for the six months ending March 31, 1988, gross receipts totaled $3.934 million. We believe these figures reflect only the receipts at the Mann theatres in Westwood, as the context in the Fellman affidavit so indicates. But the chart in the affidavit is ambiguously entitled "Gross box office receipts at Mann Theatres." Of course, we expect counsel for Warner to notify us if our interpretation of this ambiguity is incorrect and to supply the correct figures for the Westwood theatres.
[14] There has been an unfortunate use of misleading euphemisms in this case. Exclusive dealing and other potentially unlawful and apparently secret arrangements have been called "marriages," "tracks," and "relationships." Licensing injunctions have been called "conduct provisions."
[15] The Fruehauf court found no evidence that existing concentration would be increased by the merger, id., 603 F.2d at 359, and thus did not consider concentration a determinative factor.
[16] Variety Annual p. 38 (January 20, 1988).
[17] We choose 1982 because it was a particularly highly concentrated year for this industry. We are mindful of Warner's correct observation that even annual figures do not accurately reflect this industry's volatility. Even the week to week figures often fluctuate significantly. For instance, the combined market share of revenue for Paramount and Warner has been, in some weeks, greater than 50%. Economic Report of William Landes, Table 2, p. 17 (filed February 1, 1988). There is thus significant danger in relying on any particular year as an indicator of future performance. A chart reflecting distributor concentration since 1970 is attached as an appendix.
[18] Pub.L. 94-435, 90 Stat. 1383 § 201, codified in pertinent part at 15 U.S.C. § 18a.
[19] On December 5, 1988, the Department of Justice submitted a 53 page report entitled "The Legality of Customer Selection under the Injunction in the Paramount Decrees Against Discrimination in Film Licensing." This report does not purport to furnish the results of any factual investigations. It is a legal memorandum, approximately half of which is devoted to the history of the Paramount decrees. In view of this court's conclusion that a full adjudication of this matter cannot be made on the present record and must abide further submissions by Warner, this court intends to make a formal request of the Department of Justice to submit a further report which the court believes will be relevant to its final decision.
[*] Calculations by the Court based upon figures taken from Variety, p. 38 (January 20, 1988).
[1] If Tri-Star Pictures and Columbia are considered as one firm for all of 1987, the eight firm concentration is 87%.
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J-S71010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICIA NORTON :
:
Appellant : No. 138 EDA 2019
Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002388-2013
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: Filed: July 23, 2020
Patricia Norton appeals from her March 31, 2015 judgment of sentence,
which was imposed in absentia.1 We vacate Appellant’s judgment of sentence
and remand for resentencing.
On January 4, 2013, Appellant cursed at, punched, and then knocked
over Victoria Brown (the “victim”) on the steps of the SEPTA2 station located
in the 1200 block of Broad Street in Philadelphia. She continued to strike the
victim until a third person intervened. Appellant was subsequently arrested
and charged with aggravated assault, simple assault, and recklessly
endangering another person (“REAP”).
____________________________________________
1 Appellant’s appeal is timely filed as she obtained reinstatement of her direct
appeal rights nunc pro tunc on December 10, 2018, through the PCRA.
2 SEPTA is the acronym for the Southeastern Pennsylvania Transit Authority,
the public transportation authority that operates buses, rapid transit,
commuter rail, and light rail in Philadelphia and four surrounding counties.
J-S71010-19
Prior to trial, the court ordered a psychiatric examination to assess
Appellant’s competency. Following a determination that she was competent
to stand trial, the trial court found her guilty of all charges on December 15,
2014. Appellant’s sentencing was deferred until March 6, 2015, to permit a
Forensic Intensive Recovery3 (“FIR”) evaluation and pre-sentence report.
On the scheduled sentencing date, the Commonwealth was granted a
continuance due to the unavailability of the victim. Appellant also did not
appear on that date, and thus, the Commonwealth requested that the trial
court issue a bench warrant to secure her appearance for the rescheduled
hearing on March 30, 2015. Defense counsel accepted service of the warrant
on behalf of his client. On March 30, 2015, Appellant did not appear. Counsel
represented to the court that he sent letters to her, and attempted to email
and call her, but that he had not received any response. Counsel for the
Commonwealth requested another bench warrant, and that Appellant be
sentenced in absentia. In support of the latter, the Commonwealth asked for
“a little bit of time” to enable its detectives to make the necessary checks.
N.T., 3/30/15, at 4. Defense counsel had no objection to the issuance of a
bench warrant, but opposed the Commonwealth’s request that his client be
sentenced in absentia. The court initially indicated that it would issue the
____________________________________________
3 FIR is a prison deferral initiative in Philadelphia that conducts comprehensive
behavioral health assessments upon eligible participants and offers substance
abuse treatment in lieu of incarceration.
-2-
J-S71010-19
bench warrant, and the Commonwealth objected, insisting that this was
Appellant’s second failure to appear. The court then continued the sentencing
to permit the Commonwealth to complete the appropriate checks, “hopefully
. . . in an hour.” Id. Following a recess, the hearing resumed. The
Commonwealth represented that its witnesses could be ready to testify
regarding “an absentia matter” later that morning, but the trial court
scheduled it for 9:00 a.m., the next morning.
On March 31, 2015, the court heard testimony from Police Officer
Tanisha Rosaro regarding the Commonwealth’s efforts that morning to locate
Appellant. N.T., 3/31/15, at 5. The police officer testified that she checked
the morgue and various hospitals “with negative results.” Id. She also
confirmed that Appellant was not in custody. Id. The officer represented that
she could not find a current address for Appellant. Id. The Commonwealth
asked the court to find that Appellant willfully failed to appear for her
sentencing and proceed in absentia because she failed to appear on March 6,
2015, despite notice of the sentencing hearing; failed to appear on March 30,
2015, in response to a bench warrant nunc pro tunc; and that the police
officer’s check of hospitals, the prison, and the medical examiner’s office failed
to locate her. Id. at 7.
Defense counsel reminded the court that Appellant had low cognitive
capacity. He pointed out that she was in and out of different facilities both
prior to and following surgery for a brain tumor, as there was a concern that
-3-
J-S71010-19
she was a danger to herself. Id. at 13. He argued that her non-appearance
was involuntary in light of this history.
The trial court re-examined the record to verify that Appellant had
received notice of the original sentencing date. The record reflected that, on
February 12, 2015, Appellant was ordered to comply with the FIR program
and keep attending Parkside Recovery as a condition of her bail. Id. at 10.
The court ruled that since Appellant did not appear on March 6, 2015, in
response to a subpoena, or on March 30, 2015, in response to a bench warrant
her counsel accepted on her behalf, the Commonwealth would be permitted
to proceed in absentia.
The Commonwealth introduced impact testimony from the victim, and
recommended that Appellant be sentenced to three to six years of
incarceration followed by five years of reporting probation. Id. at 19. Defense
counsel asked for a mitigated sentence, noting that Appellant had a prior
record score of zero, she suffered from a brain tumor when she perpetrated
the unprovoked attack on the victim, she had pre-existing mental health
issues, and she had not been arrested or in trouble since her release almost
two years before. The Commonwealth argued that Appellant was smarter
than portrayed and that she “did not care enough to appear for her
sentencing.” Id. at 25.
The court sentenced Appellant in absentia to the term recommended by
the Commonwealth on the aggravated assault charge. It acknowledged that
-4-
J-S71010-19
the simple assault conviction merged, and stated that it was not imposing any
additional sentence for REAP.
Appellant’s counsel filed a post-sentence motion the next day. In that
motion, counsel averred that his client’s participation in the court-ordered
recovery program explained her failure to appear in court on March 6, 2015.
Her counselor at Parkside-Frankford confirmed that Appellant was attending
group therapy three times per week, and individual counseling once per week,
and that she was present at an orientation program on March 6, 2015.
Appellant pled that she mistakenly assumed that her attendance in the court-
ordered program took precedence over her appearance in court on that date.
Under the circumstances, Appellant maintained that it was an error or abuse
of discretion to sentence her in absentia. The motion was denied by operation
of law.
Appellant appealed on August 13, 2015, and was ordered to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. No
statement was filed. In its January 29, 2016 opinion, the court maintained
that all of Appellant’s claims were waived and that her appeal should be
dismissed for failure to file a Rule 1925(b) statement. On April 21, 2016, this
Court dismissed the appeal for failure to file a brief.
On July 24, 2017, Appellant filed a pro se PCRA petition. Counsel was
appointed, and filed an amended petition on her behalf. On December 10,
-5-
J-S71010-19
2018, the PCRA court ordered reinstatement of Appellant’s direct appeal rights
and afforded her counsel the opportunity to file a Rule 1925(b) statement.
Appellant presents one issue for our review: “Did the sentencing court
deny Appellant her constitutional right to due process under the United States
and Pennsylvania Constitutions when the court, over objection, sentenced
Appellant on March 31, 2015, without Appellant being present?” Appellant’s
brief at 2.
Appellant alleges a violation of her right to be present in the courtroom
at every stage of a criminal trial. As our High Court reaffirmed in
Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014), that right, while
not absolute, is guaranteed by Article I, § 9 of the Pennsylvania Constitution
and Pa.R.Crim.P. 602. We review such claims de novo, and our scope of
review is plenary. See Commonwealth v. Tejada, 161 A.3d 313 (Pa.Super.
2017).
Pa.R.Crim.P. 602(A) provides that “[t]he defendant shall be present at
every stage of the trial including the impaneling of the jury and the return of
the verdict, and at the imposition of sentence,” except in circumstances not
present here. When a defendant is absent, the Commonwealth has the burden
of proving by a preponderance of the evidence that the absence is willful.
Commonwealth v. Decosta, 197 A.3d 813 (Pa.Super. 2018); see also
Commonwealth v. Kelly, 78 A.3d 1136, 1139-40 (Pa.Super. 2013)
(citing Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980) (holding
-6-
J-S71010-19
that when a constitutional right is waived, the Commonwealth must show by
a preponderance of the evidence that the waiver was voluntary, knowing, and
intelligent)).
Appellant contends that the Commonwealth did not prove by a
preponderance of the evidence that she willfully failed to attend her
sentencing, and that court erred in sentencing her in absentia. She argues
that the Commonwealth did not establish that she was repeatedly absent or
that, given her individual circumstances, she made a knowing and intelligent
decision to abscond. Moreover, she faults the Commonwealth for its
halfhearted attempt to locate her.
The Commonwealth concedes that it did not meet its burden, and urges
this Court to vacate judgment of sentence and remand for resentencing.
Commonwealth’s brief at 10. No attempt was made to locate Appellant where
she was known to reside or likely to be found. Id. Furthermore, its one
attempt to locate Appellant, over a two or three hour span, and limited to
checking local hospitals, the jail, and the morgue, was inadequate to justify
sentencing anyone in absentia, especially “a person with [Appellant]’s mental
illness, substance abuse problems, cognitive impairments, and apparent lack
of notice of her hearing.” Id.
The Commonwealth acknowledges that the facts herein contrast sharply
with those in Commonwealth v. Hill, 737 A.2d 255, 262 (Pa. 1999), where
“numerous attempts” were undertaken to find the appellant before the court
-7-
J-S71010-19
sentenced him in absentia. See also Commonwealth v. King, 695 A.2d 412
(Pa.Super. 1997 ) (trial in absentia proper where defendant failed to appear
four times over seven months). Moreover, in determining that Appellant knew
and voluntarily waived her constitutional right to be present at sentencing,
the Commonwealth and the court largely ignored Appellant’s intellectual
disability, mental health issues, and her recent surgery for the removal of a
brain tumor, considerations that tended to undermine that notion.
The situation herein is factually distinguishable from that in
Commonwealth v. Williams, 2019 Pa. Super. Unpub. LEXIS 4489
*(Pa.Super. Dec. 4, 2019) (unpublished memorandum), where we upheld the
sentencing of the appellant in absentia. Williams was given bail with the
express condition that he complete a self-help drug treatment program. He
received notice of his sentencing hearing and knew he was required to be
present. It was undisputed that he absconded from the drug treatment facility
within three hours of his admission, and had no valid reason for doing so, or
failing to appear at his scheduled sentencing.
After a thorough review of the record, we agree that the Commonwealth
failed to establish by a preponderance of the evidence that Appellant willfully
absented herself from the sentencing proceeding. It was unclear whether she
had actual notice of the date of the rescheduled sentencing. Additionally, the
two or three hours spent by the Commonwealth to locate her were limited to
ruling out that she was hospitalized, in jail, or deceased. No attempt was
-8-
J-S71010-19
made to contact her family or her last known residences to locate her. Despite
knowledge that she had been accepted into a recovery program, the
Commonwealth did not attempt to contact the program to ascertain her status
and whereabouts. Absent herein is proof that would support a reasonable
inference that Appellant knowingly and willfully failed to appear at her
sentencing, and justify imposing sentence in absentia. We commend the
Commonwealth for its candor to this Court in acknowledging that fact.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
-9-
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Electronically Filed
Intermediate Court of Appeals
CAAP-12-0001020
15-APR-2013
02:00 PM
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788 N.W.2d 4 (2010)
SUMMIT POLYMERS INC., Plaintiff/Counter-Defendant-Appellant,
v.
ATEK THERMOFORMING INC., Defendant/Counter-Plaintiff/Third-Party-Plaintiff-Appellee, and
Leon Plastics, Owen T. Maher and Visteon Corp., Third-Party-Defendants.
Docket No. 141011. COA No. 289596.
Supreme Court of Michigan.
September 9, 2010.
Order
On order of the Court, the application for leave to appeal the March 23, 2010 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
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155 So.2d 317 (1963)
Eardeal Young MONTGOMERY
v.
R. Morel MONTGOMERY.
6 Div. 646.
Supreme Court of Alabama.
June 20, 1963.
*318 Rogers, Howard, Redden & Mills and Davies, Williams & Wallace, Birmingham, for appellant.
Matt H. Murphy, Jr., Birmingham, for appellee.
SIMPSON, Justice.
This case was originally assigned to another Justice, but was recently re-assigned to the writer for study and preparation of the opinion.
The appeal is from a decree of the Jefferson County Circuit Court, in Equity, denying the complainant's petition for further modification of a divorce decree, a vinculo matrimonii, awarding her alimony. The respondent cross-petitioned seeking further modification of the decree so as to relieve him altogether of making any further payments of alimony. The lower court denied relief to both parties. The complainant appeals and the respondent has cross-assigned errors.
The parties were married February 20, 1953, and were divorced on May 22, 1957. They had no children. The divorce decree ratified and confirmed an agreement between the parties providing that the husband (appellee) should pay to the wife (appellant) "as alimony, the sum of Three Hundred Dollars ($300.00) monthly for the rest of her natural life unless the complainant shall again marry".
Appellee had, on January 23, 1959, filed a petition to modify the decree of May 22, 1957, on the ground that appellant was self-supporting and could continue to be self-supporting and was in no further need of alimony from him. The petition prayed that a decree be rendered forever releasing him from further alimony payments. A hearing was had on this petition and a decree of modification was rendered on May 14, 1959, reducing the monthly payments from $300.00 to $150.00.
Then on July 13, 1960 appellant filed the present petition to modify this last decree, seeking reinstatement of the $300.00 per month payment. The apparent bases of the petition are: (1) "the original decree of divorce incorporated an unconditional agreement on the part of the respondent [husband] to pay to your complainant [wife] the sum of Three Hundred Dollars ($300.00) per month for her support and maintenance"; and (2) "since the rendering of said decree of modification your complainant's income from her personal efforts has been greatly reduced and has been wholly insufficient for her to meet the obligations which she has for providing herself with the necessities of life * * *". Also, the petition alleges the husband is well able to make a substantially greater payment than the $150.00 provided in the lower court's order.
Numerous rulings on evidence by the lower court are assigned as error. Most were either argued in brief with, or directly related to, the refusal of the lower court to consider the agreement concerning alimony between the parties which was embodied in the decree of divorce. Thus, the paramount issue argued by appellant is whether an agreement entered into between parties pursuant to a divorce embodied in and *319 made a part of the decree is absolutely binding upon the parties and not subject to modification. If the agreement is and of itself a continuing binding contract, the lower court committed error in refusing to consider it. But this is not the law.
The rule is clear that an agreement between the parties to a suit with respect to alimony and maintenance when adopted by the court and made a part of the final decree becomes merged into the decree. It ceases to operate as an agreement but the decree is effective as any other decree with the same terms whether or not there was an agreement to that effect. Callen v. Callen, 257 Ala. 226, 58 So.2d 462; Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89; Adams v. Adams, 229 Ala. 588, 159 So.80. The court will not modify such decree except upon a showing of changed circumstances. Callen v. Callen, id.; nor need the power to modify be expressly reserved in the decree. This is an inherent power of the equity court. Colton v. Colton, 252 Ala. 442, 41 So.2d 398.
The case of LeMaistre v. Baker, 268 Ala. 295, 105 So.2d 867 seems conclusive of the issue at bar. There we said that only alimony in gross is not subject to modification, being in the nature of a division of the marital property between the parties. But for alimony to be in gross it should be unequivocally expressed in the decree and it must meet and satisfy two requirements, i. e., (1) the time of payment and the amount must be certain; (2) the right to alimony must be vested.
It is apparent that the original decree awarding alimony, in no sense, met any requirement for alimony in gross and was therefore subject to modification on a showing of changed circumstances as the court ordered in the decree of May 14, 1959. Therefore, the exclusion from evidence of the agreement or anything relating thereto was correct, as the agreement would shed no light on any issue at bar.
Appellant also contends that the lower court erred in refusing to allow any inquiry into the various dealings and circumstances of the parties from the original divorce decree to the present hearing. We do not conceive that this ruling was in error. The inquiry was limitedand the court so ruledto facts bearing on the sole issue of whether or not there had been changed circumstances between the parties since the decree of May 14, 1959 which would justify a modification of that decree. Moreover, the ruling in no way prejudiced the appellant, anyway, because the same judge sat at all the hearings and had full knowledge of the entire record before him. Therefore, in the interest of expedition the legal principle asidethe court was fully justified in refusing such evidence.
As observed, the hearing preceding the present decree was ore tenus before the court and we of course take notice of the usual presumption attending the correctness of the ruling below. On a full consideration of the evidence we are forced to the conclusion that appellant has not shown sufficient, changed circumstances to justify amending the award entered May 14, 1959.
Having thus disposed of the contentions of appellant, we move to a consideration of appellee's cross-assignments of error. The substance of appellee's argument is that the lower court abused its discretion in refusing to relieve appellee altogether of all future alimony payments. Appellee fails completely to adduce any evidence showing an abuse of discretion in this regard and his cross-assignments of error are manifestly without merit.
It results as our view that the decree of the lower court denying both parties relief was correct.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.
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822 F.2d 1212
262 U.S.App.D.C. 150
E.C. Ernst, Inc.v.Mulcare (John Paul, Jr.), Director,Office of Workers'Compensation Programs, U.S. Department of Labor
NO. 86-1229
United States Court of Appeals,District of Columbia Circuit.
JUL 20, 1987
1
Appeal From: D.C.D.C.
2
REVIEW DISMISSED*.
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893 F.2d 1335
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ENGEL EXCAVATING, INC., Respondent.
No. 89-6508.
United States Court of Appeals, Sixth Circuit.
Jan. 23, 1990.
Judgment Enforcing an Order of the National Labor Relations Board, NLRB, 7-CA-28667.
Before BOYCE F. MARTIN, Jr. and WELLFORD, Circuit Judges, and LIVELY, Senior Circuit Judge.
1
This cause was submitted upon the application of the National Labor Relations Board for summary entry of a judgment against Respondent, Engel Excavating, Inc., Kalamazoo, Michigan, its officers, agents, successors, and assigns, enforcing its order dated June 8, 1989, in Case No. 7-CA-28667, and the Court having considered the same, it is hereby
2
ORDERED AND ADJUDGED by the Court that the Respondent, Engel Excavating, Inc., Kalamazoo, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
3
(a) Refusing to bargain with United Construction Workers, Local 10, affiliated with Christian Labor Association of the USA, by failing to forward dues deducted from employees' paychecks pursuant to duly executed and unrevoked authorizations by them, in contravention of article III of the collective-bargaining agreement, without agreement of and prior notice to the Union, and without affording the Union the opportunity to bargain as the exclusive representative of the Respondent's employees about this conduct and its effects.
4
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
5
2. Take the following affirmative action necessary to effectuate the policies of the Act.
6
(a) Forward immediately to the Union the amount of unforwarded dues withheld from employees' paychecks, with interest to be computed in the manner prescribed in New Horizons for the Retarded.1
7
(b) Post at its facility in Kalamazoo, Michigan, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
8
(c) Notify the said Regional Director, in writing, within 20 days from the date of this Judgment, what steps the Respondent has taken to comply.
1
283 NLRB No. 181 (may 28, 1987)
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IN THE COURT OF APPEALS OF IOWA
No. 18-2052
Filed January 23, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DONALD L. SMITH, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
A defendant appeals from two drug convictions. AFFIRMED.
Susan R. Stockdale, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
2
SCHUMACHER, Judge.
A defendant appeals from two drug convictions. He alleges the evidence
was insufficient to sustain his conviction and the weight was contrary to the
verdicts. The defendant also characterizes the prosecutor’s closing rebuttal
argument as misconduct. We find that error was not preserved with respect to
several of the defendant’s arguments. We further conclude the evidence is
sufficient to affirm the convictions and the verdicts are not contrary to the weight
of the evidence.
Background Facts and Proceedings
On December 25, 2016, Polk County Deputy Jason Tart responded to a
report of theft and trespass. Several officers were already on the scene when he
arrived, and Deputy Tart was tasked with detaining Donald L. Smith Jr. Deputy
Tart patted down Smith for weapons before placing him in the back of Deputy Tart’s
patrol vehicle. Deputy Tart later arrested Smith and conducted a search following
the arrest. In both the initial pat down and the search following arrest, Smith kept
his mid-calf length boots on and Deputy Tart acknowledged he did not search
Smith’s boots. Deputy Tart did inquire if Smith had anything in his boots, to which
Smith responded in the negative. Following the arrest and subsequent search,
Deputy Tart cuffed Smith’s hands behind his back before placing him once more
in the back of the patrol vehicle.
Deputy Tart then transported Smith to the Polk County Jail. During the drive
from the arrest scene to the jail, Smith bent over from the waist while seated in the
backseat. When Deputy Tart asked Smith about this action, Smith complained of
discomfort due to the handcuffs. Deputy Tart heard Smith’s “foot hitting the bottom
3
of the cage, which goes right underneath the passenger’s seat.” When Deputy
Tart and Smith arrived at the jail, Deputy Tart had Smith exit the patrol vehicle and
he noticed that Smith made a “slower, exaggerated movement” that Deputy Tart
characterized as one foot dragging across the floor. Smith’s pant leg was not
raised above his boot on his right leg at the time he entered the patrol vehicle at
the arrest site. However, it was raised when Smith exited the vehicle at the jail.
After escorting Smith from the patrol vehicle to the jail, Deputy Tart returned
to the vehicle and searched the backseat area, where he found a coin purse and
a case for chapstick or lipstick. In the case and the coin purse, Deputy Tart found
small bags of a “white crystalline substance” later confirmed to be
methamphetamine. The coin purse also contained $700, mostly in twenty-dollar
bills.
The State filed a trial information charging Smith with possession of a
controlled substance with intent to deliver under Iowa Code section
124.401(1)(b)(7) (2016) and failure to possess a drug tax stamp under section
453B.3 and 453B.12. During closing arguments of an October 2018 jury trial,
defense counsel asked the jury to have the State “explain” how Smith reached into
his boot, pulled his pant leg up, and pulled out the coin purse and the case to
conceal them on the floor. The State rebutted by accusing defense counsel of
“asking [the jury] to add additional elements that I have to prove in order for” the
jury to be able to do its job. Defense counsel did not object to this prosecutorial
statement.
Smith moved for judgment of acquittal both following the close of the State’s
evidence and at the conclusion of defense evidence. The motions were denied by
4
the district court. The jury convicted Smith on both counts. Smith filed post-trial
motions, including a motion in arrest of judgment and a motion for a new trial, which
were also denied.
Smith appeals. While appellate counsel submitted briefing, Smith himself
submitted a supplemental pro se brief.
Standard of review
We review a jury verdict for substantial evidence. State v. Button, 622
N.W.2d 480, 483 (Iowa 2001). “[A] challenge of the sufficiency of the evidence is
for correction of errors at law.” Id. Trial court rulings on motions for a new trial are
reviewed for abuse of discretion. State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa
1998). Rulings on prosecutorial misconduct are reviewed for abuse of discretion.
State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993); State v. Webster, 865
N.W.2d 223, 231 (Iowa 2015).
Discussion
On appeal, Smith argues (1) the evidence is insufficient to support the guilty
verdicts, (2) the verdicts are contrary to the evidence, and (3) the State committed
prosecutorial misconduct during closing arguments. In addition to his appellate
counsel’s arguments raised in briefing, Smith filed a supplement pro se brief. None
of the arguments in the pro se brief that are not duplicative of appellate counsel’s
brief have been properly preserved. In considering the arguments made by
Smith’s appellate counsel as set forth above, we affirm the verdicts.
I. Insufficiency of Evidence
“In evaluating the sufficiency of the evidence, we view the evidence in the
light most favorable to the State.” State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
5
Where the record contains substantial evidence to support the verdict, we are
bound by the factfinder’s determination of guilt. State v. Button, 622 N.W.2d 480,
483 (Iowa 2001). “Evidence is substantial if it could convince a rational trier of fact
that the defendant is guilty of the crime charged beyond a reasonable doubt.”
Greene, 592 N.W.2d at 29. “The evidence must raise a fair inference of guilt and
do more than create speculation, suspicion, or conjecture.” State v. Webb, 648
N.W.2d 72, 76 (Iowa 2002).
A review of the record reveals substantial evidence. The defendant
concedes that baggies of methamphetamine were found in a lipstick case and a
coin purse on the floor of the vehicle in which he was transported to the Polk
County Jail. Although Smith argues the case and coin purse were present before
he entered the vehicle, Deputy Tart testified that he was “certain” he had searched
the backseat of his vehicle after having transported a person involved in an
automobile accident hours earlier.
Deputy Tart’s pat down prior to arrest and search following the arrest did
not reveal the drugs. Deputy Tart acknowledged he did not search Smith’s boots.
The in-car camera captured evidence consistent with the State’s allegations. This
evidence included video of Smith leaning over and audio of noises consistent with
Deputy Tart’s testimony that Smith’s feet were rustling against the floor and cage
of the patrol vehicle. Smith’s recorded movements during the transport are
consistent with the State’s allegation that he coaxed the contraband from his boots
during the ride.
On appeal, Smith argues Deputy Tart would have felt the items had they
been in Smith’s boots. He also highlights the State’s reliance on inferences to
6
make its case and the lack of direct evidence showing the case and coin purse
were ever on Smith’s person. While these arguments identify Smith’s perceived
weaknesses in the State’s case, they do not merit reversal of Smith’s conviction.
“Evidence relevant to an issue of fact can be either direct or circumstantial, or
both.” State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017). “[C]ircumstantial
evidence is not inferior to direct evidence. In a given case, circumstantial evidence
may be more persuasive than direct evidence.” State v. Brubaker, 805 N.W.2d
164, 172 (Iowa 2011).
“A defendant’s close physical proximity to contraband, as virtually all
authorities agree, is insufficient in itself to constitute dominion and control.” State
v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000). However, Smith was more than simply
close in physical proximity to the drugs found in this case. A “rational trier of fact”
could find the deputy’s testimony that the drugs were not present in the vehicle
prior to Smith’s entry and that Smith made movements consistent with hiding the
drugs to be credible. Under these circumstances, we agree that a “rational trier of
fact” could find “the defendant is guilty of the crime charged beyond a reasonable
doubt.” Greene, 592 N.W.2d at 29.
II. Verdicts Contrary to Evidence
We next turn to Smith’s argument the trial court abused its discretion by
denying his motion for a new trial, alleging the verdict is contrary to the evidence.
“An abuse of discretion occurs when the trial court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
State v. Walker, 935 N.W.2d 874, 877 (Iowa 2019). We find the reasons
7
pronounced by the district court are not “clearly untenable or to an extent clearly
unreasonable.”
Under Iowa Rule of Criminal Procedure 2.24(2)(b), a “court may grant a new
trial . . . (6) When the verdict is contrary to law or evidence.” “Contrary to . . . the
evidence” means “contrary to the weight of the evidence.” Ellis, 578 N.W.2d at
659; see also State v. Wickes, 910 N.W.2d 554, 570 (Iowa 2018). The district
court denied the motion for a new trial, noting that a new trial should be granted
only in the extraordinary case in which the evidence preponderates heavily against
the verdict. The district court stated, “the court cannot say that the verdict rendered
was against the weight of the evidence, and it’s certainly not the extraordinary case
where the evidence preponderates heavily against the verdict rendered.” While
the trial court acknowledged the facts “may be a close case,” it did not determine
the verdict to be contrary to the evidence. Given the discovery of
methamphetamine following Smith’s suspicious actions in the backseat of Deputy
Tart’s patrol vehicle, we cannot describe the district court’s denial of the motion as
“clearly untenable or . . . clearly unreasonable.” Walker, 935 N.W.2d at 877. We
find no abuse of discretion.
III. Misconduct During Rebuttal Argument
Smith takes issue with the State’s rebuttal closing argument that
characterized defense counsel’s closing argument as adding an additional element
to the offense of possession of a controlled substance with intent to deliver.
To preserve review of alleged errors during closing arguments, the
aggrieved party must timely object to give the trial court the opportunity to correct
the matter. State v. Phillips, 226 N.W.2d 16, 18–19 (Iowa 1975). “Ordinarily,
8
where no objection was made at trial to statements made by opposing counsel in
his closing argument and counsel did not move for a mistrial due to the alleged
misconduct, this court cannot consider the matter on appeal.” Pose v. Roosevelt
Hotel Co., 208 N.W.2d 19, 31 (Iowa 1973).
To obtain relief on the basis of prosecutorial misconduct in closing
arguments, a defendant “must make timely and proper objection to the offending
argument. Unless objection is made at the time of the argument, the defendant
has waived his right to complain.” State v. Romeo, 542 N.W.2d 543, 552 (Iowa
1996) (citations omitted). Where defense counsel takes issue with a prosecutor’s
allegedly improper remarks for the first time in a motion for a new trial, error is not
preserved, as “a motion for new trial is not a substitute for objecting at the time of
the offending conduct.” Id. at 552–53.
We first find that trial counsel made no objection to the State’s allegedly
objectionable comment. We disagree with the State’s comment that error on this
issue might be preserved under Lamasters v. State, 821 N.W.2d, 856, 862–63
(Iowa 2012), because the trial court addressed the question of prosecutorial
misconduct at a hearing on the motion for a new trial and motion in arrest of
judgment. Under Romeo, closer to the instant case in factual and procedural
background than Lamasters, a defendant waives his right to complain of
prosecutorial misconduct if a motion is not made “before submission to the jury.”
Romeo, 542 N.W.2d at 552–53 n.5 (quoting State v. Nelson, 234 N.W.2d 368, 371
(Iowa 1975)). We hold that error on this issue was not preserved.
Even if Smith’s trial counsel had preserved error, we find no prejudicial
prosecutorial misconduct in the prosecutor arguing the elements as instructed by
9
the court. The initial requirement for a due process claim based on prosecutorial
misconduct is proof of misconduct. State v. Piper, 663 N.W.2d 894, 913 (Iowa
2003), overruled in part on other grounds by State v. Hanes, 790 N.W.2d 545, 551
(Iowa 2010). Evidence of the prosecutor’s bad faith is not necessary, as a trial can
be unfair to the defendant even when the prosecutor has acted in good faith. State
v. Leuty, 73 N.W.2d 64, 69 (Iowa 1955).
The second required element is proof the misconduct resulted in prejudice
to such an extent that the defendant was denied a fair trial. Piper, 663 N.W.2d at
913. “Thus, it is the prejudice resulting from misconduct, not the misconduct itself,
that entitles a defendant to a new trial.” Id.
In determining prejudice, the court looks at several factors “within the
context of the entire trial.” Id.
We consider (1) the severity and pervasiveness of the misconduct,
State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976); (2) the
significance of the misconduct to the central issues in the case, see
Piper, 663 N.W.2d at 903, 913; (3) the strength of the State’s
evidence, Greene, 592 N.W.2d at 32; (4) the use of cautionary
instructions or other curative measures, State v. Anderson, 448
N.W.2d 32, 33 (Iowa 1989); and (5) the extent to which the defense
invited the misconduct, State v. Swartz, 601 N.W.2d 348, 353 (Iowa
1999).
State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Based on review of the record
and these factors, we find neither misconduct nor prejudice in the prosecutor’s
statements as alleged by Smith.
10
IV. Pro Se Briefing
Smith’s pro se brief adds additional arguments to the contents of his
appellate counsel’s brief.1 He argues Deputy Tart’s search of the police vehicle’s
backseat violated the Fourth Amendment of the U.S. Constitution and article 1,
section 8 of the Iowa Constitution. He next argues his due process rights were
violated under Iowa Constitution article 1, section 9 by Deputy Tart’s alleged
contamination of the evidence. These alleged errors are not preserved.
The preservation of error rule
requires a party seeking to appeal an issue presented to, but not
considered by, the district court to call to the attention of the district
court its failure to decide the issue. The claim or issue raised does
not actually need to be used as the basis for the decision to be
preserved, but the record must at least reveal the court was aware
of the claim or issue and litigated it.
Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002). Here, there is no evidence
that the court was aware of these arguments and neither is there evidence that the
court considered them. Notably, the record contains no motion to suppress the
evidence at issue. These arguments are thus unpreserved. Cf. Lamasters, 821
N.W.2d at 864 (holding that even “incomplete or sparse” reasoning on an issue will
preserve it).
1We consider the pro se brief as part of Smith’s appeal because this matter was
already pending when Iowa Code section 814.6A took effect on July 1, 2019. See
State v. Macke, 933 N.W.2d 226, 236 (Iowa 2019) (concluding the new code
provisions limiting the right of represented parties to file pro se briefs apply only to
appeals filed after the law took effect on July 1, 2019). We are bound by our
supreme court’s holding. We conclude, therefore, the amendment “do[es] not
apply” to this case, which was pending on July 1, 2019. See id.
11
Smith’s pro se brief further argues he was not provided with the full unedited
video of the jail car ride, which he alleges violates the Fifth Amendment, the Sixth
Amendment, and article 1, section 10 of the Iowa Constitution. We dismiss this
argument because the record reveals an agreement between his trial counsel and
the prosecutor to use the edited version of the video. There was no objection to
the video at trial because the parties agreed to its use. Smith’s argument is thus
both waived and unpreserved.
Conclusion
We agree that the evidence is sufficient to support the verdict. The weight
of the evidence is not contrary to the verdicts. As no objection was made to the
prosecutor’s alleged misconduct during closing arguments, error was not
preserved on that issue. We further find that even if error had been preserved,
there was no prejudicial misconduct. To the extent the arguments raised in the
pro se brief are not duplicative of the appellate brief, the arguments are
unpreserved.
AFFIRMED.
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914 F.2d 268
Opelika Welding, Machinev.NLRB**
NO. 89-7804
United States Court of Appeals,Eleventh Circuit.
AUG 22, 1990
1
Appeal From: M.D.Ala.
2
AFFIRMED.
**
Local Rule 36 case
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(2008)
LEVEL 3 COMMUNICATIONS, LLC
v.
TOOMER ELECTRICAL CO., INC., et al.
Civil Action No. 07-462.
United States District Court, E.D. Louisiana.
May 30, 2008.
ORDER AND REASONS
JAY C. ZAINEY, District Judge.
Before the Court are cross Motions for Partial Summary Judgment (Rec. Docs. 44 & 50) on the issue of loss of use damages filed by plaintiff Level 3 Communications, LLC and defendants Toomer Electrical Co. and Diamond Electrical Co. The motions, set for hearing on April 16, 2008, are before the Court on the briefs without oral argument. For the reasons that follow, Plaintiffs motion is GRANTED and Defendants' motion is DENIED.
I. BACKGROUND
Plaintiff Level 3 Communications contends that on January 31, 2006, Defendants severed its underground fiber optic telecommunications cable while performing excavation work near 1610 and Franklin Avenue in New Orleans. Plaintiff seeks damages for repair costs ($88,002.17), customer credits ($1,273.12), and loss of use of the damaged cable ($229,493.88).
The instant motions raise the issue of whether Louisiana law permits Plaintiff to recover damages for loss of use given that Plaintiff did not actually expend funds to rent substitute capacity on another carrier's cable while its own cable was being repaired. Defendants contend that Plaintiff was able to reroute all traffic from the damaged cable onto another cable within its network, and that Plaintiff has claimed lost profits or outage credits as a separate element of damages. Defendants argue that under the circumstances Plaintiff should not be allowed to reap such a windfall by collecting loss of use damages, particularly at the measure Plaintiff is seeking which is the cost that Plaintiff would have incurred had it actually procured comparable capacity from another carrier.
Plaintiff argues that Louisiana law does not require a plaintiff to show lost revenues or profits or to actually obtain substitute property from a third party before being entitled to loss of use damages. Plaintiff also argues that the rental value of substitute property is the proper measure of loss of use damages. Plaintiff points out that it was able to reroute all traffic internally because it had expressly reserved the dedicated, spare capacity necessary for use in such emergencies.
II. DISCUSSION
The substantive law governing this negligence action is Louisiana state law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Erie, this Court determines Louisiana law by first looking to the rulings of the state's highest court. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.2000) (citing Labiche v. Legal Sec, Life Ins. Co., 31 F.3d 350, 351 (5th Cir.1994)). If the state's highest court has yet to rule on an issue then federal courts may look to the decisions of the state's intermediate appellate courts for guidance. Id. (citing Matheny v. Glen Falls Ins. Co., 152 F.3d 348, 354 (5th Cir.1998)).
In Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803, 805 (La. App. 4th Cir.1975), the court allowed loss of use damages where an errant vehicle had damaged the plaintiffs' home forcing them to use their neighbor's bathroom and kitchen facilities. The plaintiffs in that case did not actually rent other property while their home was being repaired although the court recognized that they would have been entitled to do so and recover that loss. Id. at 806. The court held that the plaintiffs were not required to actually rent substitute property in order to recover loss of use damages. Id. The court stated that rental costs only provide the fair measure of damages in appropriate cases but do not determine entitlement to damages. Id.; see also Nunez v. St. Bernard Parish Fire Dep't, 519 So.2d 857, 862 (La.App. 4th Cir.1988).
Neither party points to any Louisiana Supreme Court decisions of significance and this Court's own research has likewise revealed none. Nevertheless, the Court is persuaded that the result reached in Chriss, supra, is consistent with Louisiana law.
There is no disputing that Plaintiff would have been entitled to recover the actual cost of renting substitute capacity had it actually incurred those costs. Plaintiff contends, and the Court will assume as true for purposes of this motion, that the reason that Plaintiff was able to reroute traffic internally, and therefore avoid paying another carrier, was because Plaintiff had built redundancy into its system of networking for emergencies such as the one involved here. Redundancy usually comes at additional cost yet Plaintiff had made a business decision before this incident occurred to incur those additional costs so that it could rely on its own systems to keep its network up and running during an emergency. Thus, Defendant is seeking to reduce its own liability by relying upon the increased level of preparedness in which Plaintiff chose to invest for its business. Louisiana courts embrace and apply the collateral source rule which precludes a tortfeasor from receiving credit for benefits conferred on an injured party from other sources. Bozeman v. State, 879 So.2d 692, 697 (La.2004). The Court is persuaded that Level 3 can recover loss of use damages for its severed cable notwithstanding that it chose to reroute traffic internally. Moreover, the Court is likewise persuaded that under Louisiana law the appropriate measure of damages is the reasonable cost that Plaintiff would have expended renting substitute capacity on another carrier.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment Regarding Entitlement to Loss of Use Damages and the Proper Measure of Those Damages (Rec. Doc. 44) filed by plaintiff Level 3 Communications is GRANTED;
IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 50) filed by defendants Toomer Electrical Co. and Diamond Electrical Co. is DENIED.
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1 Cal.2d 572 (1934)
THE CITY OF LOS ANGELES (a Municipal Corporation), Respondent,
v.
WALTER ALLEN et al., Defendants; HAROLD LLOYD CORPORATION (a Corporation), Appellant.
L. A. No. 14730.
Supreme Court of California. In Bank.
October 2, 1934.
R. C. Gortner for Appellant.
Ray L. Chesebro and Erwin P. Werner, City Attorneys, Frederick von Schrader, Assistant City Attorney, and Arthur W. Nordstrom, Deputy City Attorney, for Respondent.
SHENK, J.
A petition for hearing in this case was granted in order that further consideration be given to the appellant's contention that the referees, in fixing the amount of damages to be awarded to the appellant, incorrectly computed the value of the strip of land to be taken for the purpose of widening Santa Monica Boulevard. Upon such further consideration of the facts and the arguments of counsel, we are satisfied that the opinion of the District Court of Appeal, Second Appellate District, Division One, prepared by Mr. Presiding Justice Conrey, correctly disposes of the main questions presented on the appeal, and we adopt the same as a portion of the opinion of this court as follows:
"This is a condemnation proceeding in which plaintiff proposes to take from appellant a strip of land for the purpose of widening Santa Monica boulevard, under the Street *574 Opening Act of 1903. The court approved the award of the referees to appellant of $8,614.00, and entered interlocutory judgment accordingly. Defendant appeals from said interlocutory judgment upon the ground that the amount of the award was not in conformity with the statute, which requires that the court shall find separately, 'the value of each parcel of property sought to be condemned', and that the law entitles the owner to that value."
"Appellant owns approximately 38.6 acres of land, bounded on the south by Santa Monica boulevard, and extending about 800 feet in length along that highway, and about 2,000 feet to the north. The width of the strip of land which is to be taken varies from 33.50 feet at the west end to 33.58 at the east end of the strip. There appears to be no direct evidence of the value which this parcel would have if separately owned, and thus unconnected with the remainder of the tract. This results from the tacit assumption on both sides that a piece of land of such slight depth could not be put to any very valuable use. It seems to be conceded that since the strip to be taken is part of a larger tract under a single ownership, the market value of the strip in question must be ascertained under the operation of some reasonable process whereby its value when considered as part of the entire tract may be ascertained. According to the testimony of witnesses, the tract does not derive its value equally from all parts thereof. The acreage remote from Santa Monica boulevard is of less value than that which is nearer to the boulevard frontage. The land west of this tract (separated therefrom by Selby avenue) has been subdivided into lots having a depth of about 107 feet and running to an alley. Appellant's tract of land is susceptible of similar subdivision. Taking these facts into consideration, and as an aid toward establishment of a valuation for the entire tract, the witnesses, duly qualified as experts on value, gave to the area included in the 800-foot frontage with a depth of 107 feet an estimated value of $1.64 per square foot. To the remainder of the tract they gave a value of $11,000 per acre, or approximately 25c per square foot. Apparently the referees added together the values thus estimated, and thus determined the value of the entire tract, reduced first to a valuation per acre and then to a valuation per square foot. In this manner their valuation *575 of the strip to be taken was made by considering it as part of the entire 38-acre tract, without giving a controlling force to the value given to the strip when considered as part of the imagined separate parcel having a depth of only 107 feet, and likewise without considering it as an independent, wholly separate parcel. Having arrived at their conclusion in the manner above indicated, the witnesses Butterworth and Crippen (who were two of the three referees) testified that the amount of the award as recommended by them is the fair and reasonable value of the property taken."
[1] "When private property is taken by condemnation for a public use, the owner is entitled to receive 'just compensation'. The statute requires that there be found, separately, 'the value of each parcel of property sought to be condemned'. (Street Opening Act of 1903, sec. 10; Deering's Gen. Laws, 1931 ed., Act 8198.) It is contended by appellant that the method adopted by the referees and by the court for ascertaining the value of the parcel to be taken is unsound, and that the value thereof has not been ascertained in accordance with the requirements of the law. The gist of the argument seems to be that, as an element of their computation, the referees have charged against the owner the increased value of the new frontage of appellant's property, on the street when widened. This, appellant claims, was an assessment of benefits, which the law does not authorize. But we think that this argument is itself unsound. The line between the two portions of the tract was arbitrarily chosen. This was a purely mental operation, used by the witnesses for the purpose of analysis of their problem. The ultimate question before them, and the only question which they were authorized to answer was: What is the value of this parcel of land, as it lies before us, being part of an undivided tract under single ownership? We have their answer, which was accepted by the trial court. It does not appear that any rule or principle of law has been violated by the finding of the court, or by the referees and witnesses in the method by which they made their estimate and formed their judgment concerning the value of the property."
[2] It is the contention of the appellant that the referees applied a different rule of valuation in the case of the *576 strip taken from the appellant's 38-acre tract than was applied in the case of the lots of 107-foot depth on the other side of Selby Avenue. This, however, is not the case.
Severance damage was not claimed by the appellant. On the contrary, it is conceded that there is no damage to the remaining portion of the 38-acre tract by reason of the taking of the 33-foot strip, and that the portion remaining will have the same value that it had before the severance. It is not shown that lots 107 feet deep could not be subdivided and sold from the tract after the severance as well as before. No showing is made that any natural barrier or obstacle exists to shorten the depth available for city lots after the severance. Under the facts, as well as from the concession, no severance damage could be claimed.
The appellant relies upon evidence, the admissibility of which is not attacked, that the potential value of the 107-foot depth fronting on Santa Monica Boulevard, if considered separately as city lots, is $1.64 per square foot. It does not question the evidence that the value of the area back of the front 107 feet, if considered alone, is 25 cents per square foot, and that the value of the portion remaining, after the severance, averaged 32 cents per square foot, which is the average value of the entire tract found by the referees and applied by the court in the award of compensation. But the appellant does contend that it is entitled to be awarded the potential value of the strip taken, that is, its value for city lot purposes and not as part of the entire acreage. To comply with the appellant's request would be to award indirectly to it severance damage when in fact no severance damage exists. Pursuant to the concession and the fact that no severance damage resulted, the portion of the property retained after the severance has the same value that it had before the taking. The appellant after the severance possesses that value. Assume the aggregate value of the land as an entire tract before the taking computed at 32 cents per square foot to be $500,000, after the taking the appellant retains acreage of the value of $491,386, plus $8,614, the damages awarded, which together make it whole. That is, after the taking the appellant still has the equivalent of $500,000. Should the appellant prevail in its contention that it is entitled to $43,952, instead of $8,614, it would have the value of the retained portion, or *577 $491,386, plus $43,952, which would leave it in possession of $35,338 more than it had originally. Its receipt of the additional sum of $35,338 could be justified only if damage resulting to the remaining portion by the severance reduced its value to that extent. Inasmuch as no damage occurred by reason of the severance, the result would then be unduly to enrich the appellant at the expense of the other property owners in the district.
The appellant presents no case in this state approving the requested method of computing the value of a portion of a larger tract. In condemnation proceedings in other jurisdictions the method advocated has been rejected. (In re Westchester Ave. in City of New York, 126 App. Div. 839 [111 N.Y. Supp. 351, 353]; In re Fourth Ave. in Borough of Manhattan, City of New York, 221 App. Div. 458 [223 N.Y. Supp. 525], affirmed 247 N.Y. 569 [161 N.E. 186]; City of Grand Rapids v. Barth, 248 Mich. 13 [226 N.W. 690, 64 A.L.R. 1507].)
By the award of compensation made herein the appellant has received all the benefit to which it is entitled on account of the element of value arising from the potential use of the 33-foot strip as part of city lots fronting on Santa Monica Boulevard.
The judgment is affirmed.
Curtis, J., Preston, J., Waste, C.J., Langdon, J., and Seawell, J., concurred.
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___________
No. 95-2831
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
James Kenneth Thomas, also known * Western District of Missouri.
as Jim Autry, *
* [PUBLISHED]
Appellant. *
___________
Submitted: December 12, 1995
Filed: December 27, 1995
___________
Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
___________
PER CURIAM.
James Kenneth Thomas appeals the sentence imposed by the district
1
court following his guilty plea to conspiracy to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
After pleading guilty and being released on bond, Thomas tested
positive for various controlled substances. Thomas later absconded for
approximately three months. After he was re-arrested, Thomas admitted he
had used marijuana while out on bond. At sentencing, the district court
overruled Thomas's objections to an obstruction-of-justice enhancement and
denied him an acceptance-of-responsibility reduction. The court sentenced
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
Thomas to the 60-month statutory maximum term of imprisonment, which was
below Thomas's Guidelines sentencing range of 63 to 78 months imprisonment.
Thomas first argues the district court erred by assessing an
obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. We review de
novo whether section 3C1.1 applies to Thomas's specific conduct. See
United States v. Sykes, 4 F.3d 697, 699 (8th Cir. 1993) (per curiam).
Because Thomas absconded from supervision, we conclude the district court
properly assessed the obstruction-of-justice enhancement. See United
States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (holding § 3C1.1
enhancement proper where defendant fled to California after conviction and
prior to sentencing); United States v. Lyon, 959 F.2d 701, 707 (8th Cir.
1992) (holding § 3C1.1 enhancement proper where defendant fled
jurisdiction, became fugitive, and used alias); cf. U.S.S.G. § 3C1.1,
comment. (n.3(e)) (1992) (example of conduct to which § 3C1.1 enhancement
applies is when defendant escapes from custody before sentencing).
Next, Thomas argues the district court erred by denying him an
acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1. Given
Thomas's continued drug use, we conclude the district court did not clearly
err by denying him the reduction. See United States v. Evans, 51 F.3d 764,
766 (8th Cir. 1995) (standard of review): United States v. Poplawski, 46
F.3d 42, 42-43 (8th Cir.) (no error in denying reduction for acceptance of
responsibility when defendant, while free on bond, continued use of drug
related to instant conspiracy offense), cert. denied, 115 S. Ct. 2261
(1995); United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990) (same).
Finally, we reject Thomas's argument that the district court erred
by not granting him a downward departure under U.S.S.G. §§ 5K1.1, p.s. or
5K2.0, p.s. Absent a government motion, the district court lacked the
authority to grant Thomas a section 5K1.1
-2-
departure. See Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992).
The district court also lacked the authority to depart under section 5K2.0
on the basis of substantial assistance. See United States v. Baker, 4 F.3d
622, 624 (8th Cir. 1993).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
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77 F.3d 493
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Kayode Adewale TAYO, Petitioner,v.IMMIGRATION & NATURALIZATION, Respondent.
No. 95-9517.
United States Court of Appeals, Tenth Circuit.
Feb. 23, 1996.
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
ORDER AND JUDGMENT1
HENRY, Judge.
1
Mr. Kayode Adewale Tayo petitions for review of an order denying suspension of deportation under 8 U.S.C. 1254(a)(1), and moves to remand to the Board of Immigration Appeals to reopen based on allegations of ineffective assistance of counsel in the proceedings below. We remand to allow the BIA to determine the merits of the petitioner's claim of ineffective assistance.
Background
2
Mr. Tayo is a thirty-five year-old native of Nigeria who came to this country as a student in 1982. He married a United States citizen, and the Immigration and Naturalization Service granted him conditional resident status in 1988. He obtained a divorce, then married another United States citizen. Apparently because of questions concerning the validity of the second marriage, the INS revoked his conditional resident status on August 30, 1991. A few weeks later, the INS began deportation proceedings. Mr. Tayo sought suspension of deportation under 8 U.S.C. 1254(a), which is available to an alien who can show that he or she has been in the United States for the past seven years, that he or she has been a person of good moral character, and that either the alien or designated family members would suffer "extreme hardship" on account of the deportation.
3
Mr. Tayo built his "extreme hardship" case on the fact that he is almost completely deaf. Despite his disability, he managed to complete school in Nigeria and then to attend college, first in India and then in Utah. At the time of the hearing he was completing a degree at Weber State University in preparation for a career as a computer-assisted machinist. However, he testified that he expected to have extreme difficulty in finding any kind of job in Nigeria because of the dearth of medical facilities to assist with his deafness and the limited employment opportunities available to the disabled in that country. He submitted a letter from a hearing specialist who indicated that Mr. Tayo's hearing aid needed regular maintenance, but who could not say whether such maintenance was available in Nigeria. Mr. Tayo presented no other evidence to support his contentions as to conditions in Nigeria.
4
The immigration judge found that Mr. Tayo had fulfilled the continuous presence and character requirements, but had failed to demonstrate extreme hardship. The immigration judge based his decision largely on Mr. Tayo's failure to present "competent" or "objective" evidence that his career opportunities would be limited in Nigeria. The judge noted that Mr. Tayo is the son of a former government official and concluded that Mr. Tayo's predictions of indigency were not credible.
5
Mr. Tayo then appealed to the Board of Immigration Appeals. He submitted a letter from his father in Nigeria that corroborated his testimony regarding the adverse economic and medical conditions he would face in Nigeria. The BIA determined that the letter was not admissible because it was not shown to have been unavailable at the time of the hearing and because it did not support a prima facie showing of eligibility for the relief Mr. Tayo sought. On the basis of the record and reasoning from the hearing below, the BIA affirmed the immigration judge's order. Mr. Tayo then retained new counsel and petitioned this court for review under 8 U.S.C. 1105a, which allows review of final deportation orders. His sole contention was that the immigration judge's decision considered only Mr. Tayo's economic outlook and ignored the medical hardship that Mr. Tayo would suffer if deported.
6
While the petition was pending, Mr. Tayo also moved for a remand to consider additional material evidence which he alleged was not previously presented because of ineffective assistance of counsel. Specifically, Mr. Tayo seeks to submit two affidavits: one from an ear specialist in Nigeria attesting to the inadequacy of Nigerian medical services for the hearing-impaired and the impossibility of maintaining Mr. Tayo's hearing aid in that country; and one from a political science professor in the United States outlining the allegedly dismal economic and social conditions suffered by the disabled in Nigeria, even by those with academic degrees.
Discussion
7
We review the BIA's decision for abuse of discretion. Turri v. INS, 997 F.2d 1306, 1308-09 (10th Cir.1993). Here, the evidence--more specifically the lack thereof--amply supported a conclusion that Mr. Tayo had failed to establish extreme economic hardship. As the BIA concluded, the evidence presented at the hearing demonstrated that Mr. Tayo's prospects in Nigeria were at most "uncertain."
8
Nor do we accept Mr. Tayo's contention that the immigration judge failed to consider the medical as well as the economic consequences of deportation. The immigration judge made findings, adopted by the BIA, as to the extent of Mr. Tayo's hearing loss. The fact that the final hardship determination emphasizes economic factors rather than medical ones is unsurprising given Mr. Tayo's failure to offer anything more than his own speculation as to the deficiencies of the Nigerian health care system. There is no reason to conclude from such emphasis that the decision below ignored the evidence actually proffered. See Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir.1984).
9
Mr. Tayo argues in the alternative that his case should be remanded for consideration of his newly-acquired evidence. Under 28 U.S.C. 2347(c), a party may apply to the court of appeals in which an administrative proceeding is pending for leave to adduce additional evidence, provided that the party demonstrates the materiality of the evidence and reasonable grounds for failure to adduce the evidence before the agency. This circuit has construed 2347(c) to be available to aliens petitioning for review of a final order of deportation. See Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987).
10
We will not adjudicate de novo the merits of Mr. Tayo's motion to reopen. Even though this circuit has taken a more liberal approach to 2347(c) motions than have some other circuits, compare id. (court may remand based on deportee' § 2347(c) motion) with Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 (9th Cir.1983) (court may not remand), such motions must not allow courts to encroach on decisions properly left to the sound discretion of the INS. Unlike the petitioner in Becerra-Jimenez, 829 F.2d at 998, Mr. Tayo did not file a motion to reopen with the BIA. If he had, we would leave the merits of his motion to the agency, and would review the agency's decision only for abuse of discretion. See id. There is no reason to let his failure to file such a motion dictate a different standard. We will therefore review Mr. Tayo's motion only to determine whether his new evidence justifies a remand to the agency.2
11
We turn first to the question of materiality. The professor's affidavit on economic conditions for the disabled in Nigeria appears to be the kind of "objective evidence" that the immigration judge found lacking in the proceeding below, and is therefore material. The Nigerian medical specialist's affidavit also appears to be material. A person suffering from a disability does not demonstrate extreme hardship unless he can show that deportation will endanger his health, and that the facilities in the country of deportation are inadequate to treat his disease or condition. Hamid v. INS, 648 F.2d 635, 637 (9th Cir.1981). Here, the specialist's affidavit provides specific information about the unavailability of service for Mr. Tayo's hearing aid and general information about the lack of medical services for the deaf in Nigeria. In the light of the immigration judge's finding that Mr. Tayo's hearing aid gives him "considerable assistance," the specialist's affidavit allows the conclusion that deportation will significantly exacerbate Mr. Tayo's medical condition. For the purposes of our remand inquiry, Mr. Tayo's newly acquired evidence is material.
12
Not only must evidence warranting reopening be material, but there must have been reasonable grounds for failing to adduce the evidence before the agency. 28 U.S.C. 2347(c). Here Mr. Tayo asserts that the affidavits he wishes to present were unavailable because his previous counsel did not tell him they were necessary. Affidavit of Kayode Tayo at 2. Essentially, he seeks to establish this unavailability by showing ineffective assistance of counsel.
13
We are mindful that motions to reopen are "disfavored," INS v. Abudu, 485 U.S. 94, 107 (1988), and can easily become a way for the deportable alien simply to buy more time in this country. However, the record and Mr. Tayo's affidavit raise enough doubt about the effectiveness of counsel that a remand is justified. If extreme hardship is to be established at all in this case, it will be established through credible, objective evidence as to the economic and medical conditions awaiting Mr. Tayo in Nigeria. The failure to seek such evidence transformed Mr. Tayo's case from a possible winner to a sure loser. As the immigration judge noted, "[i]f respondent could produce competent evidence to show that his career opportunities would be extremely limited in Nigeria due to his handicap, he might well meet the requirment [sic] of extreme hardship." Decision of the Immigration Judge at 3.
14
Furthermore, as noted above, a deportee seeking suspension on the grounds of medical hardship must show the inadequacy of the medical facilities in the country to which he is being deported. Hamid, 648 F.2d at 637. Objective evidence on the state of Nigerian health care was therefore the difference between a case that might have been prima facie on the medical hardship issue and one that was surely not. We conclude for purposes of Mr. Tayo's motion to remand that the failure to attempt to procure such evidence may have constituted ineffective assistance of counsel. Therefore, remand is appropriate.
15
We are unable to determine from the record before us whether Mr. Tayo has met the BIA's evidentiary requirements for ineffective assistance of counsel. See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (explaining requirements), petition for review denied, 857 F.2d 10 (1st Cir.1988). Mr. Tayo contends that these requirements are not central to the effectiveness inquiry. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir.1993) (conducting independent analysis of effectiveness of counsel). Be that as it may, a 2347(c) motion should not be a vehicle to circumvent them. Cf. id. at 110 (concluding that all evidentiary requirements had been met). We will therefore remand this case to the BIA to consider de novo the merits of reopening Mr. Tayo's case. It shall allow Mr. Tayo, if he has not already done so, an opportunity to comply with the appropriate evidentiary requirements for showing ineffective assistance of counsel.
16
Accordingly, we DENY the petition for review, and AFFIRM the BIA's order. However, we also REMAND the case for proceedings consistent with this opinion. Finally, we STAY the order of deportation for such further time as is necessary for proceedings consistent with this opinion.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)
2
If it were apparent at this point that a refusal to reopen would constitute an abuse of discretion, it would be pointless to "launch this case on a lengthy procedural voyage to reach that decision." Coriolan v. INS, 559 F.2d 993, 1004 (5th Cir.1977). In that event it could be appropriate simply to remand with instructions to reopen. See id. However, as set forth below, the record does justify such relief here
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Case: 13-13359 Date Filed: 11/24/2015 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13359
Non-Argument Calendar
________________________
D.C. Docket No. 6:13-cv-00001-BAE-JEG
JAMES HAWES,
Petitioner-Appellant,
versus
GRADY PERRY,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(November 24, 2015)
Before MARTIN, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 13-13359 Date Filed: 11/24/2015 Page: 2 of 16
James Hawes, a Georgia prisoner, appeals the denial of his federal habeas
corpus petition filed under 28 U.S.C. § 2254. Hawes is serving the remainder of a
15-year sentence on parole after being convicted by a jury in 2007 of enticing a
child for indecent purposes, statutory rape, and contributing to the delinquency of a
minor. After careful consideration of the parties’ briefs, we reverse in part the
district court and grant Hawes a writ of habeas corpus on two of the three counts of
his convictions.
BACKGROUND
At the age of 33, Hawes met the 14-year-old victim (K.P.) on an online
dating site, where K.P. was posing as a 19-year-old college student. The two
communicated via email and phone, and are alleged to have met in person on two
different weekends: the first in November 2002, and the second in December 2002.
These two weekends, and the conversations leading up to them, formed the basis of
Hawes’s convictions.
I. Weekend Encounters
In November 2002, Hawes made arrangements to travel from his home in
South Carolina to Georgia to visit K.P. for a weekend. At trial, Hawes testified
both that he did not realize K.P. was a minor when he picked her up and that he did
not have sexual intercourse with her. He admitted that they checked into a hotel
together, but said that after checking in he fell asleep and K.P. left with her friends.
2
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According to K.P., however, Hawes gave her alcohol, they had sexual intercourse,
and the two spent the weekend together. When Hawes returned K.P. to her home
on Sunday, her parents took her to law enforcement to report the incident. This
November 2002 weekend formed the basis of Hawes’s statutory rape conviction
(count two).
K.P. claims that she stayed with Hawes in South Carolina during a second
weekend in December 2002. She said Hawes picked her up and drove her to South
Carolina, where they had sexual intercourse again. At some point, K.P. said she
confessed that she was actually 14 years old, after which she said Hawes took her
to a bus station and gave her money to pay for return fare to Georgia. This second
weekend formed the basis of Hawes’s convictions for contributing to the
delinquency of a minor and enticing a child for indecent purposes (counts one and
three).
II. State Court Trial Proceedings
Hawes initially pleaded guilty to all three counts and received a 5-year
sentence, with 60–90 days to be served in custody. After he served the custodial
portion of his sentence, Hawes filed a state habeas petition asserting that his plea
was involuntary. The Georgia Supreme Court granted the petition and vacated
Hawes’s plea.
3
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Hawes then went to trial. At trial, the State called K.P. and two law
enforcement officers as witnesses, and Hawes testified in his own defense. Hawes
denied that the December encounter ever took place and testified that he had been
in West Virginia at the time of the alleged incident. In his § 2254 petition, Hawes
focuses on an email K.P. sent shortly after the alleged second encounter, which
supports his claim that it never occurred. The email, dated January 2, 2003, was
sent from K.P.’s known email account to Hawes’s account, and read:
Dear James,
I dunno if I did the right thing by lying to you and the police but, I felt
like I was in trouble. I took off my bracelet to leave the house and got
in trouble for it. After we got off the phone I came to South
Carolina to see if I could find you but I could not find your house and
all I got was your voice mail. I didn’t leave a message because I was
afraid you would think I was stalking you or you would be mad at me
for what I told the police. I hope I haven’t gotten you in to[o] much
trouble [K.P.] 1
Outside the presence of the jury, K.P. admitted to writing the email and offered an
explanation for the second to the last line regarding what she told the police and
regarding Hawes being mad. Trial counsel was initially permitted to question K.P.
about the January 2 email, but after she denied writing the email in front of the
jury, the court granted the State’s objection to further questioning on authentication
grounds. Trial counsel did not offer a foundation for the email, such as testimony
from the internet service provider (as suggested by the State at trial). Hawes later
1
K.P.’s first name was typed after the text of the email.
4
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testified that he received the email from the victim, and offered a general
explanation of what it said.
III. Verdict and Post-Conviction Proceedings
The jury found Hawes guilty, and the court imposed a 15-year sentence on
counts one and two, and 12 months on count three, to be served concurrently—
dramatically longer than his original sentence. Hawes was represented by new
counsel on direct appeal. Hawes raised three sentencing-related claims on appeal
but did not challenge trial counsel’s performance or any evidentiary rulings made
by the trial court. The Georgia Court of Appeals affirmed Hawes’s conviction and
sentence, and the Georgia Supreme Court denied certiorari. Hawes v. State, 680
S.E.2d 513 (Ga. Ct. App. 2009), cert. denied (Ga. Jan. 12, 2010).
Hawes then filed a state habeas petition. He brought a number of claims,
including the following, which are relevant to this appeal: (1) ineffective assistance
of trial counsel based on failure to lay a foundation for the admission of the
January 2 email; (2) trial court error when the court would not permit Hawes to
question K.P., in violation of the Sixth Amendment, about an online journal entry
in which she made false allegations against two teachers; and (5) ineffective
assistance of appellate counsel for failure to raise on direct appeal the various
claims of ineffective assistance of trial counsel and trial court error.
5
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The state habeas court held an evidentiary hearing, at which Hawes and his
appellate counsel testified. Strikingly, appellate counsel testified that he did not
think he could bring an ineffective-assistance-of-trial-counsel claim because trial
counsel had assisted him with the appeal.
The state habeas court denied Hawes’s petition. The court concluded that
although Hawes’s appellate counsel was deficient for thinking he could not bring
ineffective-assistance-of-trial-counsel claims, Hawes was not eligible for relief
because he could not show counsel’s mistake prejudiced him. The court reasoned
that the jury had already seen sufficient evidence that the victim had lied on many
occasions, and therefore the evidence was cumulative. The court also concluded
that appellate counsel was not deficient for failing to appeal the trial court’s
exclusion of an online journal entry written by K.P., because no Georgia precedent
established the admissibility of a victim’s false allegations of sexual misconduct
made after the charged incident. The Georgia Supreme Court denied Hawes’s
application for a Certificate of Probable Cause to appeal.
Hawes filed a pro se § 2254 federal habeas petition. The district court
denied Hawes’s petition, concluding that the state habeas court’s decision on
6
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Hawes’s claims of ineffective assistance of appellate counsel was not an
unreasonable application of federal law. Hawes timely appealed. 2
DISCUSSION
When evaluating the district court’s denial of a habeas petition, we review
de novo questions of law and mixed questions of law and fact, and we review
factual findings for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.
2000) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996
“establishes a highly deferential standard for reviewing state court judgments.”
Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002). We cannot grant
habeas relief on claims that were previously adjudicated on the merits in state court
unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
The “clearly established federal law” relevant here is Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prove ineffective
2
On appeal, Hawes also makes a number of claims related to trial court error and ineffective
assistance of trial counsel, which the state habeas court held were procedurally defaulted. For
the reasons below, we do not reach those claims.
7
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assistance of counsel, a petitioner must show that (1) counsel’s performance was
deficient, and (2) the deficient performance prejudiced the defense. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. Under § 2254(d), “[t]he question is not
whether a federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123, 129 S. Ct. 1411, 1420 (2009) (quotation marks omitted).
To establish deficient performance, a petitioner must show that counsel
made errors so serious that he was not functioning as the counsel guaranteed by the
Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The
proper measure of attorney performance is reasonableness under prevailing
professional norms. Id. at 688, 104 S. Ct. at 2065. To prove prejudice, the
petitioner must show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. An ineffective-assistance-of-appellate-
counsel claim that challenges the failure to bring a claim can be successful only if
there is a reasonable probability that the omitted issue would have affected the
outcome. Cross v. United States, 893 F.2d 1287, 1290 (11th Cir. 1990). Thus,
although Hawes claims that his appellate counsel was ineffective, the analysis
8
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collapses to whether the underlying issue (here, ineffective assistance of trial
counsel) is meritorious. Id.
COUNTS ONE AND THREE
Enticing a Child for Indecent Purposes and Contributing
to the Delinquency of a Minor (December 2, 2002 Weekend Encounter)
The district court erred by deferring to the state habeas court’s decision on
Hawes’s ineffective-assistance-of-appellate-counsel claim. The state habeas court
unreasonably applied Strickland when it held that Hawes was not prejudiced by
appellate counsel’s failure to claim ineffective assistance of trial counsel for not
properly authenticating the January 2 email at trial.
The state habeas court correctly concluded that, under Georgia law,
appellate counsel was permitted to raise ineffective-assistance-of-trial-counsel
claims when trial counsel was still tangentially involved in the appeal. See White
v. Kelso, 401 S.E.2d 733, 734 (Ga. 1991). No competent attorney would have
omitted Hawes’s claim about the January 2 email on that basis, and appellate
counsel gave no additional tactical reason for electing not to pursue the claim on
appeal, nor can we imagine one. Nobody disputes that appellate counsel was
deficient.
However, the state habeas court found that Hawes could not establish
prejudice, because there was no reasonable probability of a different outcome on
appeal. The court reasoned that K.P. had been impeached a number of times, so
9
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the substantial purpose of the email had already been accomplished. Hawes has
shown that this conclusion was objectively unreasonable with respect to his two
convictions arising out of the December 2002 weekend. Though the state habeas
court was correct that K.P. had already admitted to lying about her age, education,
dating history, and travel history, the January 2 email was not solely relevant to
show her general propensity for lying. The email served a different purpose:
undermining K.P.’s account of the specific events supporting Hawes’s convictions
and her truthfulness when testifying before the jury.
The evidence supporting the prosecution’s case on the December 2002
weekend encounter is skeletal, which made trial counsel’s deficient performance
all the more prejudicial. Strickland, 466 U.S. at 696, 104 S. Ct. at 2052 (stating
that a “verdict or conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support”); see
also Gonzalez-Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001) (holding
that “strength of the government’s case” is a factor to be considered in making the
prejudice determination). Hawes disputes that the second weekend visit ever
occurred. And the only evidence admitted at trial that showed otherwise was
K.P.’s testimony. It was a high-stakes, classic “he said, she said” scenario. The
January 2 email directly undercuts the sole evidence suggesting that the South
10
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Carolina encounter occurred and is the only evidence to show that K.P was not
truthful in her testimony at trial.
Neither is this a case in which the omitted evidence could have bolstered the
State’s case by negatively impacting Hawes in any way. Cf. Wong v. Belmontes,
558 U.S. 15, 24, 27–28, 130 S. Ct. 383, 388–89, 391 (2009) (denying
Strickland claim on prejudice prong because omitted expert testimony would have
permitted the State to introduce other, damaging evidence about the petitioner’s
prior murder); Wright v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1256, 1283–84 (11th
Cir. 2014) (concluding that state court’s application of Strickland’s prejudice
analysis was not unreasonable because putting additional witness on the stand
would have allowed the state to cross-examine the witness about a negative fact).
The State has shown no reason why admission of the email would have done
anything but support Hawes’s case and undermine the truthfulness of K.P.’s
testimony about the second weekend encounter.
The State argues that any prejudice caused by not properly authenticating the
email was mitigated by Hawes’s testimony. True, Hawes discussed the January 2
email on the stand. But Hawes’s testimony only summarized that K.P. had sent
him an email that stated: “I don’t know if I did the right thing by lying to you and
the police. After we got off the phone, I came to South Carolina to see if I could
find your house.” The full text of the January 2 email offers more information that
11
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was not given to the jury through Hawes’s testimony: the fact that K.P. “could not
find [Hawes’s] house,” and that she called but “did not leave a message.” This
information does more than merely establish that K.P. lied to the police and came
to South Carolina on her own, which was the substance of Hawes’s testimony.
With only Hawes’s testimony, the jury could conclude that K.P. ultimately met up
with Hawes in South Carolina—a fact supporting his conviction on counts one and
three. But, the full email also shows that K.P. never met with Hawes in South
Carolina, and it shows that she never told him she was coming or that she had
arrived. Taking the full email at face value, the jury could reasonably have
believed that Hawes never saw K.P. in South Carolina or knew she went there until
weeks later on January 2.
This email was the only evidence that K.P. had lied at trial about the key
events giving rise to Hawes’s conviction. This email was different in kind from all
the other evidence of K.P.’s untruthfulness because it demonstrated that she lied to
the jury. All of the other evidence of her dishonesty showed only that she had lied
to Hawes and other men. There is a stark contrast between evidence of falsehoods
in the world of online dating (all of which K.P. conceded in her testimony at trial)
and evidence showing that K.P. (1) completely fabricated the events leading to
Hawes’s prosecution; and (2) lied about the fabricated events to the police, the
State, and the jury while under oath at trial. This is notably important because
12
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Hawes’s own testimony did not disclose the date of this email, which was critical
to his ability to undermine the second weekend he was alleged to have spent with
K.P. in December. Neither did Hawes’s own testimony reveal that the January 2
email was from the email account known to be K.P.’s. This being the case, and if
appellate counsel had raised the claim that trial counsel was ineffective for not
laying a foundation for this critical evidence, there is a reasonable probability that
Hawes’s convictions would have been vacated. Thus, the state habeas court’s
conclusion that there was no reasonable probability of a different outcome on
appeal had appellate counsel raised these issues was an unreasonable application of
Strickland.
Given the weakness of the State’s case, the strictly exculpatory nature of the
excluded evidence, the fact that it is not cumulative, and the strong impact it would
have had on K.P.’s credibility with the jury, there is a reasonable probability that
Hawes would not have been convicted on counts one and three if the jury had seen
the January 2 email making clear that the second encounter never occurred.
COUNT TWO
Statutory Rape (November 2002 Weekend Encounter)
Hawes also petitions for a writ of habeas corpus on his conviction for
statutory rape, arising out of the November 2002 weekend encounter. Only two of
Hawes’s claims plausibly reach the statutory rape conviction: ineffective assistance
of appellate counsel for not raising an ineffective-assistance-of-trial-counsel claim
13
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due to trial counsel’s failure to authenticate the January 2 email (the same claim
addressed above), and appellate counsel’s failure to bring an ineffective-assistance
claim involving the admissibility of the online journal entries.3 Hawes is ineligible
for habeas relief on either claim.
I. Ineffective Assistance of Appellate Counsel: January 2 Email
Though the January 2 email could arguably have impacted Hawes’s
statutory rape charge arising out of the November 2002 weekend, the district court
correctly deferred to the state court’s prejudice determination on that conviction.
In the January 2 email, K.P. discloses that she lied to the police (presumably when
she gave a statement saying she had sexual intercourse with Hawes during the
November 2002 weekend). This is not enough to show that Hawes was prejudiced
by appellate counsel’s failure to raise the issue. First, K.P. explained her email
outside the presence of the jury:
The last paper when it was talking about “if you’re not mad about what
I told the police” is in telling them the truth. It doesn’t say anything
about me lying, I was worried that he was mad that I had told the
police the truth about where I went and what I did.
This testimony would undercut the strength of Hawes’s argument on appeal that
K.P. lied to the police about having sex with him during the November 2002
weekend. Also, unlike his claim about the December 2002 weekend, Hawes
3
None of Hawes’s remaining claims plausibly reaches the statutory rape conviction, so we do
not analyze them separately.
14
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admits that he spent at least part of the November 2002 weekend in a hotel with
K.P. Even if the email had been admitted, a jury could still have discredited his
testimony about not having sexual intercourse with K.P. Any prejudice caused by
the error was likely mitigated by Hawes’s testimony, which stated that K.P. said
she lied to the police in the January 2 email. There is not a reasonable likelihood
that the outcome of the appeal of Hawes’s statutory rape conviction would have
been different had appellate counsel challenged trial counsel’s effectiveness with
regard to the January 2 email, and Hawes is not entitled to habeas relief on that
basis.
II. Ineffective Assistance of Appellate Counsel: Online Journal Entry
Hawes also challenges the effectiveness of appellate counsel for failing to
appeal the trial court’s exclusion of K.P.’s online journal. Hawes’s trial strategy
was to question K.P.’s credibility by presenting evidence that she was a liar. Trial
counsel tried to admit an entry from K.P.’s online journal, in which she made false
allegations of sexual advances made by two teachers at her school. The court did
not allow trial counsel to admit or question K.P. about the journal entries.
Hawes is not entitled to habeas relief on his statutory rape conviction on the
basis of the trial court’s exclusion of the online journal entry. The state habeas
court determined that Hawes could not establish either prong of Strickland in
claiming that appellate counsel was ineffective for failing to challenge the trial
15
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court’s exclusion. Hawes has not shown that this decision was an unreasonable
application of federal law. The state habeas court reasoned that a Georgia case,
which held that a victim’s prior false accusations of sexual misconduct were
admissible evidence, did not establish that subsequent false allegations of sexual
misconduct were also admissible. Hawes cites no Georgia precedent to the
contrary, so his appellate counsel was not deficient for electing not to challenge the
ruling.
CONCLUSION
Because Hawes was prejudiced by appellate counsel’s failure to raise an
ineffective-assistance-of-trial-counsel claim pertaining to the January 2 email, we
reverse the district court’s Order denying habeas relief on counts one and three.
We grant Hawes a writ of habeas corpus and vacate his convictions on those
counts.4 We affirm the district court’s denial of Hawes’s petition on count two.
REVERSED AND VACATED IN PART, AFFIRMED IN PART.
4
We vacate the convictions on counts one and three solely on the basis of Hawes’s ineffective-
assistance-of-appellate-counsel claim relating to the ineffectiveness of trial counsel for failure to
lay the foundation for the January 2 email. We express no opinion about the reasonableness of
the state habeas court’s decision on Hawes’s remaining claims regarding counts one and three.
See Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1339 (11th Cir. 2011).
16
| {
"pile_set_name": "FreeLaw"
} |
2 F.Supp.2d 720 (1997)
Terry L. WARRICK, et al., Plaintiffs,
v.
Karen F. SNIDER, Secretary of the Pennsylvania Department of Public Welfare, et al., Defendants.
Civil Action No. 94-1634.
United States District Court, W.D. Pennsylvania.
December 9, 1997.
*721 Witold Walczak, Pittsburgh, PA, Public Inst. Law Cent. of Philadelphia, Stephen Gold, Community Legal Serv. Inc., Richard Weishaupt, Philadelphia, PA, Cent. PA Legal Serv., Peter Zurflieh, Harrisburg, PA, for Plaintiffs.
Thomas F. Halloran, Pittsburgh, PA, for Defendants.
OPINION and ORDER OF COURT
AMBROSE, District Judge.
This lawsuit challenges the constitutionality of a durational residency requirement for the receipt of General Assistance ("GA"). Section 6 of Pennsylvania's "Act 49," 62 P.S. § 432.4(a) (Supp.1995), effective September 1, 1994, imposes a sixty day residency requirement on individuals seeking cash welfare benefits under the GA program.[1] Plaintiff Terry Warrick, and the class of indigent persons which she represents, were denied GA benefits solely on the basis that she, and they, had not resided in Pennsylvania for sixty days prior to applying for the benefits. Warrick asserts that the durational residency requirement violates both her fundamental right to travel, and her right to equal protection under the Fourteenth Amendment. Jurisdiction is predicated upon 28 U.S.C. § 1331 and § 1343.
The Amended Complaint contains a demand for preliminary injunctive relief. By Opinion and Order dated June 30, 1995, I denied Warrick's request for preliminary injunctive relief, on the basis that she had not established a likelihood of success on the merits. Specifically, I determined that the sixty day durational residency requirement did not amount to a penalty on an individual's right to travel. Applying the rational basis test to the statute, I concluded that Pennsylvania's goal of encouraging employment and self-reliance was legitimate, and that the residence requirement was rationally related to that goal. See Docket No. 24.
At the request of the parties, this case was subsequently marked "closed." See Docket No. 45. In January of 1997, the parties requested that the case be reopened, and, several months later, they filed dispositive motions. Currently pending is Plaintiffs' Revised Motion for Summary Judgment (Docket No. 57).[2] Warrick contends, essentially, that the durational residency requirement is unconstitutional, failing both a strict scrutiny and/or a rational basis analysis.
The Commonwealth, relying almost exclusively upon my earlier denial of injunctive relief, disputes Warrick's contentions. I take a moment, however, to remind the Commonwealth that findings of fact and conclusions of law rendered in conjunction with a preliminary *722 hearing, are not binding at this procedural posture. As noted by the United States Court of Appeals for the Seventh Circuit, when considering the impact of the legal conclusions reached in a preliminary hearing upon a subsequent motion for summary judgment:
[t]he court's previous holding, being a decision on a motion for preliminary injunction, was itself only preliminary and subject to revision at any time.... In fact, we have advised district courts to be cautious in adopting conclusions of law made in ruling on a preliminary injunction because the posture of the case at that time inevitably entails incomplete evidentiary materials and hurried consideration of the issues. .... Caution is also necessary because a motion for summary judgment raises a different decisional question for the judge than does a motion for preliminary injunction.
Consideration of the former requires the judge to inquire whether there is any issue of material fact when the facts and inferences therefrom are viewed most favorably to the non-movant; the latter, whether there is a reasonable likelihood the moving party will prevail on the merits.... Thus, when the LDF moved for summary judgment, ... the district judge ... was not only free, but more properly put, obliged, to reconsider each of her decisions on the motion for preliminary injunction.
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse Wis., 991 F.2d 1249, 1258 (7th Cir.1993); see also CFTC v. American Metals Exchange Corp., 991 F.2d 71, 80 (3d Cir.1993); and Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1062 (3d Cir.1991).
Having reconsidered, as obliged, my earlier findings, on the basis of a more complete factual record, I conclude that the sixty day durational residency requirement is, in fact, unconstitutional, failing both a strict scrutiny and rational basis analysis. Accordingly, Plaintiffs' Motion for Summary Judgment is granted.
STANDARD
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, the court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.1987), cert. denied, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial Celotex, 477 U.S. at 322. Once the moving party satisfies this burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
ANALYSIS
While addressing the constitutionality of a statute is always difficult, the task before me is made immeasurably easier by virtue of Judge Newcomer's recent decision in Maldonado v. Houstoun, 177 F.R.D. 311 (E.D.Pa. *723 1997). In Maldonado, plaintiffs challenged "the constitutionality of the `multi-tier' durational residency requirement contained in Section 9(5)(ii) of Act 35, codified at 62 P.S. § 432(5)(ii)." Maldonado, p. 315. Section 9(5)(ii) provides that:
[c]ash assistance for applicants and recipients of aid to families with dependent children who have resided in this Commonwealth for less than twelve months shall not exceed the lesser of the maximum assistance payment that would have been received from the applicant's or recipient's state of prior residence or the maximum assistance payment available to the applicant or recipient in this Commonwealth.
62 P.S. § 432(5)(ii). The Maldonados, who applied for cash assistance after moving from Puerto Rico, received only $304 per month by virtue of § 9(5)(ii), rather than the $836 per month that similarly situated families who have lived in Pennsylvania for the past 12 months received. As a consequence, the Maldonados sought declaratory and injunctive relief, asserting that the multi-tier durational residency requirement violated, in part, the right to travel and the right to equal protection.
Faced with a request for preliminary injunctive relief, Judge Newcomer engaged in an exhaustive analysis of Supreme Court cases involving durational residency requirements. In particular, Judge Newcomer dissected the landmark decision announced in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), as well as modifications to that decision. In conducting this analysis, Judge Newcomer noted that the Supreme Court has subtly shifted away from the Shapiro analysis in recent years. Maldonado, p. 323-28.
Given Judge Newcomer's thorough and scholarly analysis, I feel no need to independently trace the development of the case law. Suffice it to say that I agree with Judge Newcomer's conclusion that "[w]hatever the current state of the Supreme Court's right to migrate jurisprudence, the Court must apply the Shapiro analysis to the case at bar because it is still binding precedent on this Court due to the fact that it has never been overruled and its facts are similar to this case." Maldonado, p. 328.
"Under Shapiro and its progeny," Judge Newcomer explains, "a state law implicates the fundamental right to travel and therefore triggers strict scrutiny: (1) when impeding interstate travel is its primary objective; (2) when it actually deters such travel; or (3) when it uses any classification which serves to penalize the right to travel." Maldonado, p. 328, quoting Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (internal quotation marks and brackets omitted). If these three factors are not at play, the statute need only be rationally related to a legitimate government purpose to survive a constitutional challenge.
Warrick urges that the durational residency requirement fails both the strict scrutiny and rational basis tests. I will address each of Warrick's arguments seriatim.
I. STRICT SCRUTINY ANALYSIS
Warrick contends that § 432.4(a) was designed to impede travel, actually impedes travel, and creates a classification which penalizes the right to travel, and thus is subject to a strict scrutiny analysis. The sixty day durational residency requirement, Warrick concludes, fails to survive application of a strict scrutiny analysis.
(A). Purpose of impeding travel[3]
As noted by Judge Newcomer, "[t]he Supreme Court has repeatedly stated that a law enacted for the purpose of inhibiting migration into [a] state is virtually unconstitutional." Maldonado, p. 329, citing, Hooper v. Bernalillo County Assessor, 472 U.S. 612, 620 n. 9, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985), Zobel v. Williams, 457 U.S. 55, 62 n. 9, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982); Memorial Hospital v. Maricopa County, 415 U.S. 250, 263-64, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); and Shapiro, 394 U.S. at 629. "If a law has `no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.'" Shapiro, *724 394 U.S. at 631 (citations omitted). Thus, only if the "primary objective" of § 432.4(a) is the impermissible purpose of deterrence, should strict scrutiny be applied. See Maldonado, p. 329-30, citing, Soto-Lopez, 476 U.S. at 903.
Warrick, citing to the statute's legislative history, urges that the primary objective of the statute is to deter migration. Statements made by key senators certainly buttress Warrick's allegations. For example, Majority Whip Senator D. Michael Fisher, chief sponsor and floor spokesperson for Act 49, commented that:
For many, many years, people have been coming to all of us and they have told us stories, whether it be as the gentlemen [sic] from Butler, Senator Shaffer, earlier today told us about Ohioans signing up for welfare in New Castle, or whether it be someone getting off a bus in Philadelphia or Harrisburg and signing up for welfare. ... What we are trying to do in this legislation is to try to attack at least one of the problems of the growing cost of welfare in Pennsylvania.
Pa. Legislative Journal Senate, at 2249 (June 8, 1994). Senator John E. Patterson, Chairman of the Public Health and Welfare Committee where the bill originated, similarly stated that, "I do not understand how people can be against a 60-day residency rule. I have never understood why Pennsylvanians felt they should have to pay for welfare needs across this country." Id. at 2253.
Senators Fisher's and Patterson's statements, as do others cited in Warrick's brief, certainly lend themselves to the interpretation that a goal of the legislation was to keep indigents from relocating to Pennsylvania. Another key provision in the statute reinforces this conclusion. While the Commonwealth initially denies cash assistance to new residents, if that individual agrees to leave the Commonwealth, temporary benefits will, in fact, be paid. See 62 P.S. § 432(5)(i). It requires no great leap in logic to view the Commonwealth's willingness to lend aid to an indigent person, if that person is willing to relocate, as an effort to keep indigent persons from settling in Pennsylvania.
The Commonwealth counters that this Court is restricted in determining the primary objective of legislation by what is set forth in the statute. I do not agree. That statements made during debates concerning passage of a bill are relevant to determining the purpose and intent of a provision is so well established that it needs no citation to authority. Having considered these statements, as well as the effect of § 432(5)(i), I do believe that one purpose of the durational residency requirement was, in fact, to impede migration.
Yet Shapiro only requires application of the strict scrutiny analysis if impeding migration is the primary purpose of the provision. I cannot reach this conclusion. Section 401, entitled "legislative intent," provides as follows:
a. It is hereby declared to be the legislative intent to promote the welfare and happiness of all the people of the Commonwealth, by providing public assistance to all of its needy and distressed; that assistance shall be administered promptly and humanely with due regard for the preservation of family life, and without discrimination on account of race, religion, or political affiliation; and that assistance shall be administered in such a way and manner as to encourage self-respect, self-dependency and the desire to be a good citizen and useful to society.
b. It is hereby declared to be the legislative intent that no recipient of cash or medical benefits shall be entitled to indefinite government support unless it can be established that;
(1) a person is permanently disabled and unable to work; or
(2) the person is required to be in the home full-time to care for a dependent adult or child who requires constant attention and supervision.
62 P.S. § 401 (Act 49 of 1994). Thus, the express legislative purpose is to promote self-respect and self-dependency. This correlates to what the Commonwealth claims is the driving purpose behind § 432.4(a)to encourage employment.
In Maldonado, where plaintiffs also claimed that a residency requirement had as its primary purpose to impede migration, Judge Newcomer found a similar expression of legislative intent to be very clear. Section *725 401 of Act 35 provided that: "It is hereby declared to be the legislative intent to promote the self-sufficiency of all the people of the Commonwealth." Maldonado, p. 330. Although the plaintiffs introduced statements made during floor debates similar to those identified by Warrick, Judge Newcomer held that:
The snippets of legislative history and the statement from DPW do not convince this Court that the primary objective behind the enactment of Section 9(5)(ii) was to deter migration in light of the clear legislative intent of Act 35, which is to encourage self-sufficiency and work.
Maldonado, p. 330.
I agree with Judge Newcomer. Although I do believe that one purpose of imposing the durational residency requirement is to deter migration, in light of the clear expression of legislative intent in § 401to promote self-dependence I am not convinced that the primary purpose of the provision is to deter migration. Accordingly, strict scrutiny will not be applied on this basis.
(B) Actual deterrence[4]
Warrick alleges that "[t]he residency requirement also warrants strict scrutiny because it actually deters poor people from permanently settling in Pennsylvania." (Docket No. 52, p. 23). Yet Warrick has not proffered any statistical evidence in support of this assertion. Indeed, the evidence of record submitted by Warrick defeats such a claim. John Hartman, an Assistant Professor of Sociology at Columbia University, with a specialization in social science statistics, submitted a declaration in which he takes great pains to refute any claim that Pennsylvania is a "welfare magnet." That is, he contends that indigent people do not consider which state may offer the most generous welfare benefits before deciding to relocate. Such a contention defeats any claim that a durational residency requirement, in fact, deters migration.
The dearth of empirical evidence convinces me, as it did Judge Newcomer in Maldonado, that strict scrutiny is not applicable in this instance. I will not decide a constitutional question based upon speculation.[5]
(C) Imposition of a Penalty
Finally, the Shapiro decision also stands "for the proposition that a classification which operates to Penalize those persons ... who have exercised their constitutional right of interstate migration must be justified by a compelling state interest." Maricopa, 415 U.S. at 258 (internal quotation marks and citations omitted, emphasis in original). While what precisely constitutes a "penalty" has not been clearly articulated, guidelines do exist. For example, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the Court determined that the denial of the right to vote, a "fundamental political right," constitutes a penalty. In Shapiro, the Court found deprivation of the "basic necessities" of life, such as food and shelter, to be a penalty. Finally, denial of access to nonemergency medical care has also been declared an unconstitutional penalty. Maricopa, 94 S.Ct. at 1088.
In contrast, a one year durational residency requirement as a condition to lower tuition at state institutions of higher learning is not a penalty. See Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). Similarly, a one year residency requirement for petitioners seeking a divorce decree was declared not to be a penalty. See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). And in Shapiro, the Court cautioned that residency requirements determining eligibility "to obtain a license to practice a profession, to hunt, or fish" may not constitute a penalty. Shapiro, 394 U.S. at 638 n. 21.
*726 The question then, is thisdoes a durational residency requirement of sixty days for the receipt of cash benefits constitute a penalty? I answered this question in the negative when addressing the request for preliminary injunctive relief. I based my decision upon the Commonwealth's representations that new residents were "not being deprived of the things that are necessary for their very survival...." (Docket No. 24, p. 17). The testimony offered by the Commonwealth indicated that "new residents are eligible for food stamps, emergency housing and rent money when necessary, and the medical care necessary for basic health, [and are also eligible for] assistance in finding new employment, without regard to any waiting period." (Docket No. 24, p. 17). Based upon these representations, I found the facts of this case to be distinguishable from those in Shapiro and Maricopa, where the durational residency requirements had potentially life-threatening consequences, and those in Zobel and Soto-Lopez, where the classifications created were permanent and the treatment of the classes never equalizes. (Docket No. 24, p. 17-18).
But, as stated above, findings of fact and conclusions of law reached during a preliminary injunction hearing are not binding when addressing a motion for summary judgment. Indeed, given the different procedural postures, I am obligated to reconsider and reexamine my earlier findings. Having reexamined the issue of a "penalty" in light of the more fully developed factual record, I find that the durational residency requirement does, in fact, amount to a penalty, as it may deprive new residents of such basic necessities as shelter, food, medical assistance, and employment training.
(1) Shelter
For instance, contrary to the Commonwealth's representations during the earlier hearing, emergency assistance is not readily available to indigent new residents. Of the 4502 people who were denied cash assistance because of the durational residency requirement at the time the record was developed, not a single person received emergency assistance. See Docket No. 54, Ex. 22. Absent emergency assistance, indigent new residents are unable to pay for housing. For those who do not have the luxury of a family member or friend willing to provide shelter, the denial of emergency assistance leads to the very real possibility of homelessness. Donna Cooper, Executive Director of the Philadelphia Mayor's Office of Community Services, explains that, in Philadelphia (which has the highest concentration and largest number of low income people in the Commonwealth), "[t]he City's emergency shelters are full and are therefore not immediately or always open to the homeless, new residents." Docket No. 53, Ex. 1, ¶ 5. "Public housing or federally subsidized housing," Cooper continues, "too, would be unavailable, as this housing has long waiting lists numbering into the thousands of people who have been on waiting lists for much longer." Id.
Charlotte Murray who moved, along with her husband and 10 of 12 children, to Philadelphia in search of work, initially obtained shelter in a cousin's 3 bedroom house, which already housed 9 people. Docket No. 53, Ex. 8, ¶ 12. Murray's entire family was forced to live on the floor. Id. Murray inquired of the Department of Public Welfare about affordable housing, but was told that no help was available. Murray and her family had to leave her cousin's house and, lacking shelter, walked to a number of homeless shelters in search of lodging. Id. at ¶ 14. Neither the Salvation Army, nor the Saints James and Barnabas Missions were able to help. Id. Facing the immediate possibility of a night on the streets, dangerous at any rate but especially so because one of the children was suffering from undiagnosed strep throat, Murray finally obtained shelter at the Parker Hotel, through the generosity of the Traveler's Aid Society. Id. at ¶ 15. Murray explains, however, that:
[s]ince we had no money for rent and a security deposit, we were not able to move out of our temporary quarters at the Parker Hotel. We were informed by the Traveler's Aid Society that our temporary housing there could end at any time. It was very upsetting to know that we could be back on the street with our ten children at any time.
Id. at ¶ 21.
While Traveler's Aid was able to offer some assistance to Murray, its resources are *727 limited and they are not able to help everyone, and the receipt of cash assistance is vital to securing housing. Ernest Eskin, the Executive Director in Philadelphia, explains that "[t]he availability of GA ... allows the newcomer to be able to secure a shelter bed and not be homeless, as shelters will be more likely to keep you if you have welfare income that is paid to the shelter. The Pennsylvania GA residency requirement will thus increase homelessness among newcomers who will not have funds to rent a room or will have reduced access to a city shelter." Docket No. 53, Ex. 3, ¶ 10. Eskin warns that "[w]ithout [GA], neither private social service agencies nor the City of Philadelphia can meet the financial needs of new residents. It remains an essential and unique safety-net for new residents here." Id. at ¶ 12.
The Commonwealth offers no persuasive evidence to rebut the very real likelihood that, absent cash assistance, indigent new residents face homelessness. Certainly the Commonwealth did not come forward with any explanation as to why the 4502 people included in Warrick's figures were denied emergency assistance. Nor did the Commonwealth identify other individuals, not included in the 4502 figure, who were, in fact, granted emergency assistance. Instead, the Commonwealth offers the affidavit of Patricia O'Neal, Director of the Bureau of Policy at the Department of Public Welfare. O'Neal simply attaches to her affidavit a "Community Services Index." The Index, O'Neal claims, lists those organizations available to indigent new residents to meet basic needs, such as shelter. The affidavit and "Index" are, however, of little value. The Index is simply a "laundry list" of organizations, without any details as to precisely what services are provided, and whether the organizations are even able to meet every need. Additionally, a number of organizations listed under the heading pertaining to "basic needs," have seemingly nothing to do with the provision of shelter and/or food, i.e., Adult Literacy Center, Better Business Bureau, Big Brothers/Big Sisters, Boy Scouts of America, Boys and Girls Clubs, Community Legal Services, County 4-H, County Adult/Juvenile Probation Departments, County Public Defenders Office, Pennsylvania Department of Environmental Resources, Girl Scout Council and Hispanic Organizations. See O'Neal Affidavit, Ex. 1, attached to Docket No. 59.
Stephen Zivkovich, Operations Director of the Allegheny County Assistance Office, and employed by the Department of Welfare, offers a similar affidavit. In support of his conclusory statement that "[w]hile a person is waiting to receive cash assistance, there are other resources to meet basic living needs which are provided through federal, state, or private funds," Zivkovich attaches a list of organizations. Zivkovich's list suffers from the same shortcomings as does O'Neal's. The list does not provide any detail as to the resources available to each organization, or whether the organizations are able to accommodate every request for aid. See Zivkovich Affidavit, attached to Docket No. 59.
Finally, the Commonwealth offers the affidavit of F.J. Bostwick, Director of Community Services of the Department of Welfare, who provided a list of services available in Philadelphia County. See Bostwick Affidavit, attached to Document No. 59. While Bostwick's list does provide a brief narrative, it too fails to provide any information as to whether the organizations are able to accommodate all requests for help. Consequently, I do not find the O'Neal, Zivkovich or Bostwick affidavits to hold any persuasive value.
Considering the evidence proffered on behalf of both parties, I necessarily find that, while Emergency Assistance may be available, and while other organizations may exist for the purpose of providing shelter, Emergency Assistance and housing are available only in theory. The deprivation of shelter for any portion of sixty days is hardly a trivial matter, and cannot be likened to a delay associated with securing a hunting or fishing license, or obtaining a divorce.
(2) Food
Aside from the issue of shelter, there remains a similarly important issue of food. Warrick proffers evidence that: (1) not all indigent new residents receive food stamps; (2) the allotment of food stamps, if given, may not be sufficient; and (3) many basic items cannot be purchased with food stamps. *728 For instance, of the new residents denied cash assistance solely because of the residency requirement, only 37.3% received food stamps. See Docket No. 54, Ex. 19. That leaves the possibility that approximately 63% of indigent new residents were denied food stamps, and were thus without means of readily obtaining food. And for those comprising the 37%, the allotment may not be enough. Those without access to adequate shelter and thus without access to a refrigerator, stove and/or oven, are not able to make food stamps "stretch." Charlotte Murray explains that "[s]ince we did not have kitchen facilities at the Parker Hotel, we had to use food stamps for more expensive, semi-prepared foods. Also, we had to throw away unused food, like the baby's milk, because we did not have refrigeration." Docket No. 53, Ex. 8, ¶ 23. Finally, even if adequacy of the allotment was not an issue, the fact remains that food stamps may not be used to purchase certain essential items. Again, Charlotte Murray testified that, until she received her first cash assistance check, she "did not have money for toiletries, personal care products, clothing, transportation, baby diapers, laundry, or basic school supplies for [her] family of twelve." Id., at ¶ 22.
The Commonwealth offers nothing to rebut Murray's testimony, or Warrick's statistical evidence. Rather, the Commonwealth simply relies upon the organizations to which new residents may presumably go for food, listed in the aforementioned affidavits. As discussed above, however, the affidavits and the corresponding lists are unpersuasive. They offer no concrete details of whether an indigent new resident can, in fact, secure sufficient food.
(D) Medical Care
In addition to concerns over shelter and food, the durational residency requirement raises concerns about medical care. During the sixty day waiting period, new residents are denied the filling of medical prescriptions. Without cash assistance, these prescriptions, and other medical needs, may go unfilled. Again, Charlotte Murray's testimony is instructive on this issue. Murray, who had secured a data entry job during the waiting period, had to decline employment due, in part, to a lack of necessary eye glasses:
[b]y using my medical card, I was able to have my eyes examined by a doctor. Although I am nearly blind in one eye and my vision is blurred in the other eye, I was not able to get glasses since the medical assistance program does not cover the cost of glasses for adults. I was very concerned about this because I realized that I would need glasses in order to perform any data entry job.
Id. at ¶ 24.
Again, the Commonwealth offers no evidence supporting a conclusion that organizations exist to aid indigents in Ms. Murray's position. I recognize that the Commonwealth does offer emergency care. I nevertheless believe that other medical needs, although perhaps not of an emergency nature, are vital to meeting an individual's basic life needs. Indeed, the Supreme Court recognized as much in Maricopa.
In Maricopa, the Supreme Court considered whether a one year durational residency requirement for the treatment of nonemergency medical care constituted a penalty. The Court concluded that such a denial did constitute a penalty, noting that
"[t]he State could not deny [plaintiff] care just because, although gasping for breath, he was not in immediate danger of stopping breathing altogether. To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioration in his health. Cancer, heart disease, or respiratory illness, if untreated for a year, may become all but irreversible paths to pain, disability, and even loss of life. The denial of medical care is all the more cruel in this context, falling as it does on indigents who are often without the means to obtain alternative treatment."
Maricopa, 415 U.S. at 260-261. I do not suggest that the factual circumstances in Maricopa are identical to those presented by Murray. Nevertheless, I believe, as did the Supreme Court, that a compromise in the ability to access medical care, may have dire consequences. Absent the receipt of cash *729 assistance, indigent new residents may be deprived, as was Charlotte Murray, of necessary medical items such as eye glasses. Again, I find such a denial to be distinguishable from the denial of a hunting or fishing license.
(E) Employment Training
Access to employment training does not, I believe, qualify as a "basic life necessity." Nonetheless, I discuss such access given that the Commonwealth's justification for imposing a waiting period is to encourage employment, and because the Commonwealth defended the request for preliminary injunctive relief, in part, based upon the alleged access to employment training. Significantly, however, the Commonwealth now admits that new residents can only get training assistance and/or training stipends if they are already recipients of cash assistance. See Docket No. 54, Exs. 14-17. During the sixty day waiting period, new residents are denied cash assistance. Ergo, the Commonwealth does not provide new residents with employment training or stipends during the waiting period. Again, the only evidence offered to refute the conclusion that training is unavailable, is the affidavits discussed, and dismissed, above.
(F) Conclusion
In conclusion, then, the only persuasive evidence of record suggests that indigent new residents denied cash assistance, run the very real risk of being homeless and without sufficient food or other basic necessities. Food and shelter are the very same "basic life necessities" that the Shapiro court found to merit application of the strict scrutiny test.
In this sense, the instant case is distinguishable from Maldonado. In Maldonado, new residents were not entirely denied cash assistance. Indeed, Judge Newcomer distinguished Shapiro, in part, on this basis. Maldonado, p. 331 (stating, "[f]or example, the newcomers in Shapiro received no cash assistance. In this case, the newcomers receive TANF cash assistance at the same level they would have received in their state of prior residence."). Instead, the assistance given was the lesser of that received by the resident in his/her former state, or the allotment prescribed by the Commonwealth. Receipt of cash benefits thus permitted plaintiffs in Maldonado to qualify for employment training, to supplement food stamps, to pay for rent, and to secure basic life necessities such as toiletries, which cannot be purchased with food stamps.
My conclusion that the durational residency requirement operates as a penalty is supported by other provisions of the Welfare Code. For instance, residents who wilfully and without good cause refuse to seek, accept or retain work are penalized by having their eligibility for cash assistance suspended. See 62 P.S. § 423.3(a)(1). Indeed, Patricia O'Neal herself explicitly described the suspension as a "penalty." See Docket No. 54, Ex. 24, p. 15. Additionally, individuals who commit welfare fraud lose cash assistance benefits for six months for the first offense, and twelve months for the second offense. See 62 P.S. § 481(f). Again, Patricia O'Neal, DPW's Director of Bureau of Policy, explicitly referred to these suspensions as "penalties." See Docket No. 54, Ex. 24, p. 61-62.
If the suspension or denial of cash assistance constitutes a penalty where an individual has declined to accept work, or has committed welfare fraud, it is disingenuous to describe a similar deprivation to new residents as an "incentive to work." The Commonwealth's attempts to engage in a game of semantics is not persuasive.
"Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by whether it promotes a compelling state interest." Shapiro, 394 U.S. at 638 (emphasis in original). As determined by the Supreme Court, a statute which impedes the ability to secure life's basic necessities in an effort to encourage employment and self-dependency, fails this test. Id. Accordingly, § 432.4(a) is unconstitutional.
II. RATIONAL BASIS ANALYSIS
Even if application of the strict scrutiny analysis were not appropriate, I believe that the durational residency requirement would fail the rational basis test. Again, the Maldonado opinion is instructive. In Maldonado, *730 one of the proffered legitimate government objectives was "to encourage employment, self-respect and self-dependency among its welfare recipients, that is to encourage self-reliance over reliance on welfare." Maldonado, p. 332.[6] The Commonwealth has articulated the same legitimate purpose here. See Docket No. 61, p. 41 (stating that the "legitimate government objective [is] an intent to encourage self respect and self-dependency. That is to encourage self-reliance over reliance on welfare."). The Commonwealth explains that, by imposing the waiting period, its "hope is that the welfare applicant will choose or seek immediate employment over delayed cash assistance because self-sufficiency is a more attractive alternative than welfare." Docket No. 61, p. 5.
I recognize, as did Judge Newcomer in Maldonado, that encouraging work is an "admittedly permissible state objective." Shapiro, 394 U.S. at 634. Indeed, I find it to be a laudable goal. Yet the Commonwealth's means of fostering that goal is not rational. If the durational residency requirement is designed to encourage employment, logic would dictate that long term residents should undergo a similar waiting period. Judge Newcomer reached the same conclusion in Maldonado. See Maldonado, p. 332 (stating that "[t]o begin, if the goal of the multi-tier durational residency requirement is to promote self-sufficiency, for example by encouraging work, `this logic would also require a similar waiting period for long-term residents of this State.'", quoting, Shapiro, 394 U.S. at 637.). Indeed, as Judge Newcomer concluded, I find that the Commonwealth's "justification depends on the wholly unsubstantiated assumptions that newcomers to Pennsylvania are somehow less motivated than more established recipients to seek work and that, when they apply for cash assistance, the members of the latter group but not the former have exhausted any alternatives the Commonwealth has to offer." Maldonado, p. 332.
Accordingly, I find, as did the Supreme Court in Shapiro, and as did Judge Newcomer in Maldonado, that a durational residency requirement designed to encourage new residents to seek employment, fails to satisfy the rational basis test. Consequently, I hold that the classification created in § 432.4(a) is unconstitutional.
ORDER OF COURT
After careful consideration of the submissions of the parties and for the reasons set forth in the Opinion accompanying this Order, it is hereby Ordered that the Plaintiffs' Revised Motion for Summary Judgment (Docket #: 57) is Granted. Defendants' purported Cross-Motion for Summary Judgment (Docket #: 60) is Denied. Section 432/4(a) of Title of Purdons is unconstitutional.
NOTES
[1] While the statute was amended to increase the durational requirement to twelve months, see Act 35-1996 (May 16, 1996), the state Attorney General concluded that the twelve month requirement was an unenforceable, unconstitutional penalty on migration, and thus reinstated the sixty day requirement, despite its repeal by the legislature. See 26 Pa. Bull. 6231 (Dec. 28, 1996), attached to (Docket No. 52, Ex. 1).
[2] While the Commonwealth purported to file a Cross-Motion for Summary Judgment (Docket No. 60), the motion is untimely. Dispositive motions were to be filed no later than May 9, 1997. The Cross-Motion was not filed, however, until July 2, 1997. Accordingly, I will treat the purported "Cross-Motion" as simply a brief in opposition to Plaintiffs' Motion.
[3] This issue was not before me at the preliminary injunction stage.
[4] The issue of actual deterrence was not raised at the preliminary injunction hearing.
[5] Warrick cites to Maricopa, 415 U.S. at 258, and other cases, in support of a claim that actual proof of deterrence is unnecessary. The passages referenced by Warrick, however, speak of the irrelevance of actual deterrence when the statute actually penalizes the right of migration. The question of whether a statute imposes a penalty is distinct from that of whether there is actual deterrence. Accordingly, if the court finds a penalty to exist, strict scrutiny is applicable regardless of whether actual deterrence exists. I therefore am not persuaded by Warrick's argument in this regard.
[6] The other articulated purpose was to discourage "persons from shopping around for the `best benefit package of the year.'" Maldonado, p. 332. This purpose is constitutionally impermissible.
| {
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Filed 5/7/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
KEEP OUR MOUNTAINS QUIET, H039707
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 112CV221481)
v.
COUNTY OF SANTA CLARA,
Respondent;
CANDICE CLARK WOZNIAK, as
Trustee, etc.,
Real Party in Interest and Appellant.
The County of Santa Clara and the Board of Supervisors of the County of Santa
Clara (collectively, the County) adopted a mitigated negative declaration and granted a
use permit allowing real party in interest Candice Clark Wozniak, as trustee of the
Candice Clark Wozniak Trust (the Trust), to host a limited number of weddings and other
events on property located in the Santa Cruz Mountains (the Property). Respondent Keep
Our Mountains Quiet (the Association), an unincorporated association of individuals who
reside in the vicinity of the Property, successfully petitioned for a writ of mandate on the
ground that the County violated the California Environmental Quality Act (CEQA)1 in
adopting the mitigated negative declaration instead of requiring an environmental impact
report.
1
CEQA is codified in the Public Resources Code, starting at section 21000.
The Trust appeals, arguing the County complied with CEQA. The County has not
appealed. The Trust filed a separate appeal from a postjudgment order granting the
Association attorney fees. The Association cross-appeals as to the attorney fee order.
We have consolidated the appeals for purposes of this opinion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Property
The Property consists of 14.46 acres of land in the Santa Cruz Mountains. It is
situated on Summit Road, also known as Highway 35, in Santa Clara County, adjacent to
Santa Cruz County. Summit Road is within the jurisdiction of the California Department
of Transportation (Caltrans). The Property houses vineyards for the Redwood Ridge
Estates Winery, llama and alpaca grazing land, barns, and a residence where Candice
Wozniak lives. Adjacent to the Property in Santa Clara County is the Bear Creek
Redwoods Open Space Preserve (Open Space Preserve), which is owned by the
Midpeninsula Regional Open Space District (Midpeninsula). The Open Space Preserve
currently is open to the public by permit only. Midpeninsula plans to open the Open
Space Preserve to the general public in the future and proposes to establish a network of
hiking trails located 750 feet or more from the Property. The remainder of the area
surrounding the Property is characterized by single-family residences on heavily wooded
lots that are over two acres in size.
B. Unpermitted Events
Beginning in 2006, Wozniak hosted a number of weddings and other events on the
Property without obtaining the necessary use permit from the County. Music and speech
were amplified over a sound system during those events using speakers oriented to the
southeast.
At an August 24, 2006 meeting with County officials, Wozniak stated that
approximately 100 people typically attended events on her Property. A Web site
advertising the Property as an event space represented there was seating for 200.
2
Complaints received by the county sheriff’s office about events in 2006 indicated the
events had more than 200 attendees. A zoning violation report cited accounts of wedding
receptions with 300 attendees being held at the Property. Three weddings were held on
the Property during one weekend in October 2006, each of which was attended by
approximately 150 people.
The county sheriff’s office received numerous calls from local residents
complaining about the noise associated with unpermitted events at the Property. A
number of residents also wrote to County officials to complain that they could hear
announcements and loud music late into the night. Many of the complaining residents
lived in the Santa Cruz County neighborhood of Marty Road, located about 3,000 feet
south of the Property across a canyon.
The County sent Wozniak three letters during the summer of 2006 informing her
that she “must cease” holding wedding receptions on the Property because a land use
approval was required for such events.
C. The Project
The Project involves a use permit authorizing 28 special events per year for 100
guests and 12 staff members to be held between the hours of 2:00 p.m. and 10:00 p.m. on
Saturdays and Sundays between May 1 and September 30. Wozniak first applied for a
use permit in December 2008. As discussed below, the County studied the Project for
three years before adopting a mitigated negative declaration (MND) in December 2011.
D. Administrative Proceedings
Following the preparation of an initial study, the County issued a notice of intent
to adopt an MND on June 30, 2010. The County planning commission held a public
hearing on the Project on August 5, 2010. The planning commission continued the
Project to evaluate the many public comments it received regarding potential noise and
traffic impacts. Following another continuation in September 2011, the planning
commission adopted a revised MND and approved the use permit on December 1, 2011.
3
The mitigation measures set forth in the revised MND as conditions of project
approval (and as conditions on the use permit) include, among others: (1) orienting the
speakers away from neighboring residences and towards the Open Space Preserve, with
specific placement to be approved by the planning office and reviewed by a noise
consultant; (2) the provision and posting of a noise complaint telephone number; and (3)
an annual report by the planning office assessing compliance with the conditions for at
least the first year. As part of that compliance report, County staff is required to retain a
qualified noise consultant, paid for by Wozniak, to conduct noise readings at a minimum
of four random events. The mitigation measures authorize the planning commission to
revoke or modify the use permit based on compliance with the foregoing conditions and
to extend noise monitoring for at least one year if there is evidence reception noise
exceeds the County noise ordinance or General Plan thresholds. The use permit also
includes the condition that only one outdoor live band event, to be monitored by a
County-retained noise consultant, be permitted during the first year of operation. “If the
Planning Commission determines based on the monitoring results that the live band
monitored noise meets the County Noise Ordinance Standards, the following years of
operation may allow more outdoor live band events.”
The Association appealed to the board of supervisors. Following a public hearing,
the board of supervisors denied the appeal and affirmed the adoption of the revised MND
and the approval of the use permit.
The following evidence was adduced during the administrative proceedings.
4
E. Evidence of Noise Impacts
1. County Noise Standards
The County’s noise ordinance provides that between 7:00 a.m. and 10:00 p.m. in
residential areas, exterior noise levels containing music must not exceed 70 dBA2 and
must not exceed 50 dBA for more than 30 minutes in any hour. These noise levels must
not be exceeded on other (i.e., neighboring) properties. The noise ordinance does not
apply to open space preserves. The County’s general plan provides exterior noise
standards based on the average noise level measured over a 24-hour period (the day-night
average sound level). The general plan’s limit for both residential areas and open space
preserves is a day-night average sound level of 55 decibels (dB). Santa Cruz County’s
General Plan provides that, between 7:00 a.m. and 10:00 p.m., exterior noise levels are
not to exceed 70 dBA or an hourly average of 50 dBA.
2. Wozniak’s Sound Consultant
Wozniak retained an acoustical consultant, Rosen, Goldberg, Der & Lewitz, Inc.
(Rosen), to analyze the sound generated by three wedding receptions held on the Property
during a single weekend in October 2006. Rosen presented its findings in a report dated
July 2008.
According to that report, at each wedding, there were approximately 150 attendees
and a sound system with speakers pointed to the southeast was used to amplify recorded
music and speech. Throughout the weekend, Rosen monitored and documented the
sound levels at two locations near the property line and in the direction of nearby homes.
In particular, the monitoring locations were south of where the wedding receptions were
held, in the direction of the Marty Road neighborhood.
2
The abbreviation dBA refers to A-weighted decibels, which express sound levels
as perceived by the human ear.
5
Rosen concluded that the County’s noise standards were not exceeded throughout
the weekend. In compliance with the County’s noise ordinance, the sound levels never
exceeded 50 dBA for more than 30 minutes in any hour and wedding noise never
exceeded 70 dBA. The highest noise level achieved for an extended period of time (30
minutes in any hour) was 45 dBA. In accordance with the County’s general plan, the
day-night average sound levels at the two locations were 49 dB and 48 dB, below the 55
dB limit. And, as required by the Santa Cruz County General Plan, the hourly average
noise levels were below 50 dBA, at 48 dBA and 49 dBA.
3. The County’s Sound Consultant
The County’s acoustical consultant, Edward L. Pack Associates, Inc. (Pack),
conducted a peer review of the Rosen noise analysis. In its review, Pack was “unable to
concur that the events . . . unequivocally do not generate any significant noise impacts.”
Pack opined that the locations at which Rosen monitored the wedding noise were
“topographically shielded.” Pack further indicated Rosen failed to consider the potential
impact of the acoustic spreading of sound waves from a loud speaker, sound reflected off
the canyon walls, wind, and temperature inversion. Pack commented in its review that
“[b]ands and DJ’s at a wedding will typically play at 85-88 dBA Leq (average) at a
distance of 20 ft. from the front of the stage and speakers.”
Pack recommended the performance of one or more noise analyses of mock or real
events using a DJ or band and vocal announcements typical of a wedding. Pack further
recommended that noise level be measured at potentially affected residences, including
those on Marty Road.
Pack conducted a mock wedding reception at the Property on June 11, 2011. A
sound system was used to replicate DJ entertainment. The speakers were pointed north
towards the Open Space Reserve. Sound level meters were set up at the homes of three
neighbors and at the property line with the Open Space Preserve. A CD of popular music
was played at an average of 82 dBA at 20 feet from the speakers; maximum sound levels
6
exceeded 90 dBA. Pack initially set the music to 85 dBA but lowered it because that
level was “uncomfortably loud for a wedding reception.”3
The music was “inaudible” at the three homes. Pack calculated the day-night
average sound level at the Open Space Preserve’s property line to be 45 dB.4 Pack
indicated that the average hourly sound level at the Open Space Preserve’s property line
was 52 dBA.5 Pack opined that at Midpeninsula’s planned hiking trails the day-night
average sound level would be 34 dB and the hourly average noise level would be 41
dBA. Pack’s raw data showed noise at the Open Space Preserve’s property line reached a
maximum of 70.1 dBA during the mock event.
Pack did not measure crowd noise at the mock event, but did attempt to analyze
the sound created by wedding attendees using a mathematical model and crowd noise
data collected at a wedding at another venue. Pack opined that the sound of the crowd
cheering could be as loud as 52 dBA at a residence located 3,500 feet away on Marty
Road. This level of noise would be “noticeable” but would not exceed the Counties’
standards, according to Pack. Assuming a crowd cheers loudly eight times during an
3
An e-mail from the County commenting on an earlier draft of Pack’s report
suggests the decision to turn down the music was prompted by Wozniak: “Second page,
third paragraph starting with ‘A CD of popular’--We need to reword this. How it’s stated
now appears to characterize that Ms. Wozniak dictated the parameters of the noise study,
which can’t be the case. Could mention feedback from Ms. Wozniak on how she
monitors noise but the mention that the music was turned down based on her suggestion
will be very damaging.” The final report stated that Wozniak had no “influence on the
music program/equipment or operations used for this study.”
4
Wozniak leases a portion of the Open Space Preserve for llama grazing. The
day-night average sound level was 45 dB at the fence line between the llama grazing area
and the rest of the Open Space Preserve. The day-night average sound level was 49 dB at
the fence line between the Property and the llama grazing area.
5
The average hourly sound level was 56 dBA at the fence line between the
Property and the leased llama grazing area.
7
event, for five seconds each time, the hourly average noise level at the Marty Road
residence would be 32 dBA.
At the Open Space Preserve, the hourly average noise level from the crowd noise
would be 51 dBA at the fence line between the Property and the llama grazing area, 37
dBA at the fence line between the llama grazing area and the rest of the Open Space
Preserve, and 26 dBA at the proposed hiking trails. The day-night average sound level
would be 38 dB at the fence line between the Property and the llama grazing area, 23 dB
at the fence line between the llama grazing area and the rest of the Open Space Preserve,
and 12 dB at the proposed hiking trails.
As to a live band, Pack opined that “sound levels would likely comply with the
Santa Clara County and Santa Cruz County noise standards, [but] they would be
noticeable at times.” Pack indicated that sound levels at neighboring residences would be
10 dB higher with a band as compared to a DJ.
4. The Association’s Sound Consultant
The Association retained an acoustic consultant, The Acoustics & Vibration
Group, Inc., to review Pack’s noise analyses. The Acoustics & Vibration Group
criticized Pack for playing music at 82 dBA during the mock event instead of at 85 to 88
dBA, which Pack characterized as typical for wedding DJs in its peer review of the Rosen
study. Relatedly, the consultant suggested the mock event may have been inaudible at
neighboring residences, not because the speakers were oriented away from them, but
because the mock event was unrealistically quiet. The Association’s acoustic consultant
further opined that the County’s noise requirements for the Open Space Preserve would
have been exceeded had the music been played louder, at 88 dBA.
5. Public Comments Regarding Noise
Neighbors commented on the Project at planning commission hearings and by
declaration and letter. Many complained about the noise they experienced during the
unpermitted weddings in 2006. One Marty Road resident described hearing “pounding
8
music, shouted announcements, celebratory screams, hoots, cheers, and clapping” during
those events. Another neighbor stated that noise from the 2006 events was “quite audible
in our closed house, with the hollers of the crowd soaring above and the throbbing bass
notes reaching below any noise (such as the TV) we tried to employ to cover it.” Other
neighbors declared that during the 2006 events, “lower frequencies from the amplified
music, public address system and crowd penetrated the walls and windows of our home
with such intensity that we could feel the resulting vibrations while sitting in our family
room . . . or lying in bed.” Neighbors who were home during the mock event
acknowledged not hearing it, but concluded it was not representative of actual events held
on the Property.
One Marty Road couple, the Matlocks, addressed a wedding held on the Property
on August 7, 2010. They stated that they could hear “pounding music and loud cheers”
from the wedding, which led them to call the sheriff to report the noise. Wozniak’s
counsel told the planning commission at its December 1, 2011 hearing that for the August
7, 2010 wedding “[t]he number [of attendees was] kept down” and Wozniak “tried to . . .
comply with the draft conditions.” The Matlocks stated at the same hearing that a video
of the event shows the speakers were oriented away from their home, “exactly the setup
the permit seeks to approve.” The Matlocks stated that, unlike the August 7, 2010
wedding, they could not hear the mock event at their home.
6. Midpeninsula Letters
Midpeninsula expressed concern about the noise impacts the Project would have
on visitors and wildlife in the Open Space Preserve. Midpeninsula noted that “studies by
a research group at De Anza College have documented mountain lions and bobcats in the
Preserve, species whose movement and behavior may be negatively affected by amplified
sound nearby particularly in the evening and twilight hours.”
9
F. Evidence of Traffic Impacts
1. Expert Analyses and Caltrans’s Position
Wozniak retained Hexagon Transportation Consultants, Inc. (Hexagon) to perform
a traffic operations analysis regarding the Project. According to Hexagon’s August 12,
2009 report, the purpose of its analysis was to evaluate whether the Project would
“require a separate eastbound left turn pocket from Summit Road to the project
driveway.” After monitoring traffic on Summit Road, Hexagon concluded that no left
turn pocket would be required due to the low volume of traffic on Summit Road.
Hexagon noted that Summit Road is a “lightly used roadway, with a Saturday peak
period between 5:00 pm and 6:00 pm of approximately one vehicle every two minutes.”
In a letter dated January 14, 2011, Caltrans responded to Hexagon’s report. It
opined that “[t]he increased traffic [associated with the Project] will have significant
impacts to the operations and traffic movements to the site entrances” and “might impede
[Summit Road] in both directions because of numerous vehicles making right and left
turns into the site.” Caltrans requested “more data and analysis clearly illustrating the
traffic conditions impacting the site driveways and the [Summit Road]/[Highway] 17
intersection during the weekend conditions.”
Hexagon provided a supplemental report on February 15, 2011. Hexagon
explained that Summit Road carries less than 400 vehicles per day on weekends, 36 of
which pass during what Hexagon deemed to be the “peak event hour” of 5:00 p.m.6
Hexagon opined that the Project would add 43 vehicles during the peak event hour. As to
the Summit Road/Highway 17 interchange, Hexagon concluded the Project would have
6
Hexagon deemed 5:00 p.m. to be the peak event hour because it was under the
impression the Project involved “special events on Saturday from 5:00 pm to 10:00 pm”
and it opined most people arrive in the hour prior to an event beginning. In fact, the
Project involves a use permit authorizing events between the hours of 2:00 p.m. and
10:00 p.m. Presumably, the start time of any given event--and thus the peak event hour--
may vary.
10
no discernible impact, as it would add “at most, 35 peak-hour vehicles” to the
interchange, which would be split between northbound and southbound vehicles.
The Association’s traffic consultant, James C. Jeffery, conducted a peer review of
Hexagon’s August 12, 2009 report. Jeffery noted that Summit Road is narrow
(specifically, it lacks centerline striping in the vicinity of the Project, meaning the road is
less than the standard 24 feet wide) and curvy and that the Property’s driveway is not
perpendicular to the road. He criticized Hexagon for failing to discuss these roadway
conditions and indicated “there needs to be a review of the possible limited sight distance
at the roadway/driveway junction.” Jeffery opined that the projected increase in traffic
associated with the Project “would likely compound the traffic safety issues” posed by
the narrow, curvy road and skewed driveway. In his view, given the usually low traffic
volume on Summit Road, “any projected traffic increase would likely have an impact.”
On August 31, 2011, Caltrans e-mailed the County regarding both Hexagon’s
February 2011 report and Jeffery’s peer review. Caltrans “accepted” Hexagon’s report
with regard to traffic volumes and peak hour conclusions. However, the agency
“remain[ed] concerned regarding potentially significant impacts to safety based on line of
sight, sight distance, turning radii and other potential issues that appear to accompany this
project.” Caltrans indicated that the issues Jeffery raised were “under the purview of [its]
Encroachment Permits office” and that its own concerns “(line of sight, sight distance,
turning radius) [would] be . . . addressed” in the context of an Encroachment Permit
application.
Hexagon responded to Jeffery’s critiques in a September 12, 2011 memorandum.
As to the nature of Summit Road, Hexagon stated that a “preliminary review” of state
traffic records showed there were “no significant accident issues” on the stretch of
Summit Road where no centerline is present, and opined that the Project would not add
sufficient traffic to change the character of the roadway.
11
Caltrans remained concerned about possible traffic safety issues associated with
the Project on September 27, 2011, as “a safety review . . . revealed an accident history
that is twice the statewide average.”7 Caltrans expressed “concern over how these
conditions may be exacerbated by the addition of a driveway and the use of alcohol.”
At the end of October 2011, Caltrans informed the County by e-mail that “[o]ur
office of Traffic Safety has examined [Hexagon’s] report and reviewed the data sources.
The study appears to be in order, and we have no further comments at this time.” In
response to the County’s request that Caltrans confirm “there are no significant traffic or
road safety impacts,” Caltrans stated “the consultant’s study and addenda satisfy our
concerns at this time.” Caltrans noted that “additional evaluation must be performed
when the Encroachment Permit review occurs.”
2. Public Comments Regarding Traffic
Members of the public expressed concerns about the Project’s impact on traffic at
planning commission hearings and by declaration and letter. At one public hearing, a
resident stated: “From Bear Creek Road to [the Property] there are 19 blind curves. . . .
[¶] And from [the Property] to Highway 17, there’s another 20 blind curves. . . . I
measured [Summit Road and t]here’s a place where [it] is nine feet six inches wide. . . .
There are no, no graded shoulders, no paved shoulders.” Other residents commented that
joggers, cyclists, and dog walkers frequent the stretch of Summit Road near the Property
despite the lack of shoulders.
G. Judicial Proceedings
The Association filed a petition for writ of mandate seeking to require the County
to prepare an Environmental Impact Report (EIR) and alleging planning and zoning law
7
The parties have pointed to nothing in the record resolving the apparent
discrepancy between Hexagon and Caltrans regarding the frequency of accidents along
Summit Road near the Property.
12
violations. In an order filed on January 25, 2013, the superior court ordered the County
to prepare an EIR, finding substantial evidence supported a fair argument that the Project
may cause significant noise and traffic impacts. The court did not address the planning
and zoning law violations, deeming them moot. The Trust timely appealed.
The trial court granted in part the Association’s motion for attorney fees. The
court awarded the Association $145,747 under Code of Civil Procedure section 1021.5,
compensating it for only a portion of the hours it claimed and denying a multiplier. The
Trust timely appealed the fee award. The Association timely cross-appealed as to the fee
award. This court consolidated the appeal on the merits and the appeal on the fee motion.
II. DISCUSSION
A. Motion to Strike the Opening Brief
Below, the County was the respondent but it did not appeal. Nevertheless, the
opening brief was filed on behalf of the Trust as well as the County.
The Association moved to strike the opening brief, arguing it violated rule
8.200(a) of the California Rules of Court because the County is not an appellant. The
Association does not contend that the Trust lacks standing to assert any of the arguments
advanced in the opening brief. Instead, it suggests the Trust be permitted to refile the
opening brief without listing the County as a party to it.
Having not appealed, the County cannot be considered an appellant. Accordingly,
it is not entitled to file an opening brief. (Cal. Rules of Court, rule 8.200(a)(1).) And
while rule 8.200(a)(5) of the California Rules of Court permits parties to join in or adopt
part or all of another party’s briefs, “ ‘a respondent who has not appealed from the
judgment may not urge error on appeal.’ ” (Estate of Powell (2000) 83 Cal.App.4th
1434, 1439.) Thus, it would make little sense to allow a respondent to join in or adopt
portions of an appellant’s brief that attack the judgment below. Code of Civil Procedure
section 906 provides a limited exception to the rule that a respondent may not urge error;
it allows a respondent to “request the reviewing court to . . . review [the judgment] for the
13
purpose of determining whether or not the appellant was prejudiced by the error or errors
upon which he relies for reversal or modification of the judgment from which the appeal
is taken.” “The purpose of the statutory exception is to allow a respondent to assert a
legal theory which may result in affirmance of the judgment.” (California State
Employees’ Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7.) It has
no application here, as the opening brief seeks reversal. In sum, neither rule 8.200(a)(5)
of the California Rules of Court, nor Code of Civil Procedure section 906, permits the
nonappealing parties to join, adopt, or sign the Trust’s opening brief.
Nevertheless, we decline to strike the brief. Instead, we shall disregard the
County’s signature.
The Association also complains that the Trust’s opening brief does not comply
with rule 8.204(a)(2)(B) of the California Rules of Court, which requires an appellant’s
opening brief to “[s]tate that the judgment appealed from is final, or explain why the
order appealed from is appealable.” We agree that the opening brief does not contain
such a statement but exercise our discretion under rule 8.204(e)(2)(C) of the California
Rules of Court to disregard that noncompliance.
As a final procedural issue, the Association contends we should affirm because the
Trust never filed an answer to the petition for writ of mandate. For that contention, the
Association relies on the principle of law that, where “no answer [to a petition for writ of
mandate is] filed, the court may hear the case on the papers of the applicant.” (Azeria v.
California Adult Authority (1961) 193 Cal.App.2d 1, 3; see also Code Civ. Proc., §
1094.) Here, no answer was filed but the petition for writ of mandate was fully briefed.
The Association fails to explain how Azeria applies under these circumstances, nor does
it contend that it raised Azeria below. Accordingly, we consider the argument forfeited.
(Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120 [“appellant’s failure to present any
pertinent or intelligible legal argument in his opening brief constitutes an abandonment of
14
the appeal”]; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.
(2006) 136 Cal.App.4th 212, 226 [arguments not raised below are forfeited].)
B. Overview of CEQA
“ ‘[T]he overriding purpose of CEQA is to ensure that agencies regulating
activities that may affect the quality of the environment give primary consideration to
preventing environmental damage.’ ” (Save Our Carmel River v. Monterey Peninsula
Water Management Dist. (2006) 141 Cal.App.4th 677, 687.) Where the statute applies,
the relevant governmental agency must conduct an initial study to determine “ ‘if the
project may have a significant effect on the environment.’ ” (Id. at p. 688 quoting CEQA
Guidelines, § 15063, subd. (a).)8 “ ‘Significant effect on the environment’ means a
substantial, or potentially substantial, adverse change in any of the physical conditions
within the area affected by the project including land, air, water, minerals, flora, fauna,
ambient noise, and objects of historic or aesthetic significance.” (Guidelines, § 15382.)
There is no “ironclad definition of [what constitutes a] significant effect”; “[t]he
determination of whether a project may have a significant effect on the environment calls
for careful judgment on the part of the public agency involved.” (Guidelines, § 15064,
subd. (b).) “[I]n marginal cases where it is not clear whether there is substantial evidence
that a project may have a significant effect on the environment, the lead agency shall be
guided by the following principle: If there is disagreement among expert opinion
supported by facts over the significance of an effect on the environment, the Lead
Agency shall treat the effect as significant and shall prepare an EIR.” (Id., subd. (g).)
If the initial study uncovers “substantial evidence that any aspect of the project,
either individually or cumulatively, may cause a significant effect on the environment,” it
must prepare an EIR. (Guidelines, § 15063, subd. (b)(1).) An EIR is required whenever
8
CEQA Guidelines (“Guidelines”) are contained at California Code of
Regulations, title 14, section 15000, et seq.
15
“ ‘substantial evidence in the record supports a “fair argument” significant impacts or
effects may occur.’ ” (City of Arcadia v. State Water Resources Control Bd. (2006) 135
Cal.App.4th 1392, 1421.) If, on the other hand, there is “no substantial evidence that the
project or any of its aspects may cause a significant effect on the environment,” the
agency prepares a negative declaration. (Guidelines, § 15063, subd. (b)(2).)
Alternatively, if “ ‘the initial study identifies potential significant effects on the
environment but revisions in the project plans “would avoid the effects or mitigate the
effects to a point where clearly no significant effect on the environment would occur” and
there is no substantial evidence that the project as revised may have a significant effect
on the environment, a mitigated negative declaration may be used.’ ” (Architectural
Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1101 (Architectural
Heritage).)
In the CEQA context, substantial evidence “means enough relevant information
and reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be reached.”
(Guidelines, § 15384, subd. (a).) Substantial evidence includes “facts, reasonable
assumptions predicated upon facts, and expert opinion supported by facts” (id., subd.
(b)), but not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence
which is clearly erroneous or inaccurate, or evidence of social or economic impacts
which do not contribute to or are not caused by physical impacts on the environment.”
(Id., subd. (a).)
“Relevant personal observations of area residents on nontechnical subjects may
qualify as substantial evidence.” (Pocket Protectors v. City of Sacramento (2004) 124
Cal.App.4th 903, 928.) “For example, an adjacent property owner may testify to traffic
conditions based upon personal knowledge.” (Citizens Assn. for Sensible Development of
Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 173.) Because substantial
evidence includes “reasonable assumptions predicated upon facts” (Guidelines, § 15384,
16
subd. (b)) and “reasonable inferences” (id., subd. (a)) from the facts, factual testimony
about existing environmental conditions can form the basis for substantial evidence.9
(Guidelines, § 15384; Banker’s Hill, Hillcrest, Park West Community Preservation
Group v. City of San Diego (2006) 139 Cal.App.4th 249, 274 (Banker’s Hill) [“local
residents may testify to their observations regarding existing traffic conditions”], bold
emphasis added.) For instance, in Taxpayers for Accountable School Bond Spending v.
San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1054, resident testimony
regarding traffic congestion and accidents associated with events at a school stadium
constituted substantial evidence supporting a fair argument that a plan to allow night
games (that would draw larger crowds) may have a significant traffic impacts. The
testimony constituted substantial evidence because “any traffic problems experienced in
the past logically will only be exacerbated if the Project is completed and evening
football games are held.” (Id. at p. 1055.) In other words, one reasonably can infer a
project will have a significant impact on traffic from factual testimony regarding past
traffic congestion caused by similar projects. However, “ ‘in the absence of a specific
factual foundation in the record, dire predictions by nonexperts regarding the
consequences of a project’ ”--such as that it would exacerbate an already dangerous
9
The League of California Cities and the California State Association of Counties
(collectively, amici curiae) filed an amicus brief in support of the Trust, which focuses on
what types of evidence constitute substantial evidence for purposes of CEQA. With
respect to citizen testimony, amici curiae contend statements “concerning existing
environmental conditions . . . cannot be equated with evidence of significant project
effects.” We agree that testimony about current conditions is not proof of what impacts a
future project will have. But “the question is not whether [citizen testimony] constitutes
proof that [particular effects] will occur,” but whether it (or reasonable inferences from it)
“constitutes substantial, credible evidence that supports a fair argument that . . . [the
project] may have a significant impact on the environment.” (Rominger v. County of
Colusa (2014) 229 Cal.App.4th 690, 721 (Rominger).) As discussed above, factual
testimony about existing environmental conditions can form the basis for substantial
evidence supporting a fair argument that significant impacts or effects may occur.
17
intersection--“ ‘do not constitute substantial evidence.’ ” (Banker’s Hill, supra, at p. 274;
Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1352
(Leonoff) [citizen comments consisting of “unsubstantiated conclusions about traffic
being dangerous near the project site” without stated “factual bas[e]s . . . do not rise to the
level of substantial evidence supporting a fair argument of significant environmental
effect”].)
C. Standard of Review and Contentions on Appeal
We review the County’s efforts to comply with CEQA for prejudicial abuse of
discretion. (Architectural Heritage, supra, 122 Cal.App.4th at p. 1109.) An agency
abuses its discretion where it fails to proceed in a manner required by law or its
determination is not supported by substantial evidence. (Ibid.) In reviewing the adoption
of an MND, our task is to determine whether there is substantial evidence in the record
supporting a fair argument that the Project will significantly impact the environment; if
there is, it was an abuse of discretion not to require an EIR. (Ibid.) “ ‘Whether a fair
argument can be made is to be determined by examining the entire record.’ ” (Ibid.)
The Trust contends there is no substantial evidence in the record supporting a fair
argument that the Project will have significant noise or traffic impacts, such that the trial
court erred in granting the Association’s petition for writ of mandate. We address each
area of concern in turn.
D. Noise Impacts
As an initial matter, the parties dispute what constitutes a “significant” noise
impact. The County employed the noise standards set forth in its noise ordinance and
General Plan as the thresholds for significant noise exposure, deeming any increase to be
insignificant so long as the absolute noise level did not exceed those standards. The Trust
defends that approach as “common practice.” The Association urges that “ ‘conformity
with a general plan does not insulate a project from EIR review where it can be fairly
18
argued that the project will generate significant environmental effects.’ ” (Citizens for
Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323,
1338 [General Plan noise standard], quoting Oro Fino Gold Mining Corp. v. County of El
Dorado (1990) 225 Cal.App.3d 872, 881-882 [same]; Berkeley Keep Jets Over the Bay
Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1381 (Berkeley Jets) [“the fact
that residential uses are considered compatible with a noise level of 65 decibels for
purposes of land use planning is not determinative in setting a threshold of significance
under CEQA”].) The weight of authority favors the Association on this point. (Gentry v.
City of Murrieta (1995) 36 Cal.App.4th 1359, 1416 [a project’s effects can be significant
even if “they are not greater than those deemed acceptable in a general plan”];
Environmental Planning & Information Council v. County of El Dorado (1982) 131
Cal.App.3d 350, 354 [“CEQA nowhere calls for evaluation of the impacts of a proposed
project on an existing general plan”].) Accordingly, an EIR is required if substantial
evidence supports a fair argument that the Project may have significant unmitigated noise
impacts, even if other evidence shows the Project will not generate noise in excess of the
County’s noise ordinance and General Plan.
The Association contends the County should have focused on the magnitude of the
increase in ambient noise levels caused by the Project, relying on appendix G of the
CEQA Guidelines. Appendix G contains an “ ‘ “Environmental Checklist Form” . . .
designed to be used as an initial study to determine if a project may have a significant
effect on the environment.’ ” (Rominger, supra, 229 Cal.App.4th at p. 715; Guidelines, §
15063, subds. (a) & (f).) “ ‘The checklist consists of sample questions divided into
categories of potential physical impacts a project may have.’ ” (Rominger, supra, at p.
715.) With respect to noise, the appendix G checklist asks whether the project would
result in “[a] substantial temporary or periodic increase in ambient noise levels in the
project vicinity above levels existing without the project.” (Guidelines, appen. G, § XII,
subd. (d).) We agree that the lead agency should consider both the increase in noise level
19
and the absolute noise level associated with a project. (Environmental Planning &
Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p. 354 [CEQA
“concerns itself with the impacts of the project on the environment, defined as the
existing physical conditions in the affected area”]; Pub. Resources Code, § 21060.5
[defining environment]; Berkeley Jets, supra, 91 Cal.App.4th at p. 1382 [concluding the
“potential noise impact of increased nighttime flights mandate[d] further study”]; id. at
pp. 1381-1382 [where there had been no “meaningful analysis of existing ambient noise
levels”].) With this framework in mind, we turn to the evidence of noise impacts.
We begin by considering the impact of event-related noise on neighboring
residents. There is substantial evidence in the record supporting a fair argument that
music played by a DJ during events on the Property may have significant noise impacts
on surrounding residents. One neighboring couple, the Matlocks, stated that they could
hear “pounding music” from a wedding held on August 7, 2010, despite a video showing
the speakers were oriented away from their home, as called for by the MND and use
permit. At a planning commission hearing, the Matlocks represented that the DJ set up
during the August 2010 wedding was “exactly the setup the permit seeks to approve.”
Wozniak’s counsel did not disagree. In fact, he appears to have corroborated that the
speakers were pointed towards the Open Space Preserve during the August 2010
wedding, telling the planning commission that Wozniak “tried to . . . comply with the
draft conditions” during that event. Significantly, the Matlocks acknowledged that the
mock event was inaudible at their home. The Matlocks’ comments cast doubt on whether
the mock event was representative of a real wedding featuring DJ entertainment and
constitutes substantial evidence supporting a fair argument that the Project may have
unmitigated noise impacts.
With respect to outdoor live music, we reach a similar conclusion. The only
evidence as to the potential noise impacts of a live band event are Pack’s opinions that
band noise would be 10 dB louder than a DJ at neighboring residences, would be
20
“noticeable” at those residences, and would “likely” comply with the Santa Clara County
and Santa Cruz County noise standards. That evidence, combined with the Matlocks’s
comments as to the volume of a DJ event at their home, supports a fair argument that the
Project may have a significant environmental noise impact. While the use permit allows
only one live band event in the first year and more in future years only if the noise from
that event complies with the County’s noise ordinance, compliance with the ordinance
does not foreclose the possibility of significant noise impacts.
Turning to crowd noise, substantial evidence in the record supports a fair
argument that Project-related crowd noise may have significant noise impacts on
surrounding residents. Multiple residents testified to the crowd noise associated with
prior events at the Property, including “celebratory screams, hoots, cheers, . . . clapping”
and “hollers” that could be heard even inside neighboring homes. The Trust
characterizes those prior events as “much larger” than those authorized by the use permit.
While there is evidence indicating some of the prior events had between 150 and 300
attendees10 (well over the 100 attendee limit imposed by the use permit), Wozniak
informed County officials that approximately 100 people typically attended events on her
Property in 2006. That evidence, combined with resident testimony about crowd noise,
supports a fair argument that the Project may have a significant environmental noise
impact.11
10
The Rosen report shows some weddings had as many as 150 attendees. The
evidence for more than 150 attendees is hardly as definitive as the Trust suggests. A
Board of Supervisors Staff Report references “complaint reports received by the County
Sheriff” for the 200 attendee figure. A zoning violation report states “[r]eported having
wedding receptions at site w/300 persons.” It appears these figures may be based on
estimates given by neighbors who complained about events on the Property.
11
The County’s noise expert opined that crowd noise at nearby residences would
be “noticeable” but in compliance with the County’s noise ordinance and General Plan at
52 dBA. As noted, that compliance alone is not dispositive on the question of whether
(continued)
21
The Association also complains about potential noise impacts on biological
resources and visitors in the Open Space Preserve. As to biological resources, the record
contains evidence mountain lions and bobcats live in the Open Space Preserve and a
study submitted by the Association indicating noise may have negative effects on wild
animals, including stress-related illness, abandonment of favored habitats, and population
declines. There also is evidence noise levels at the property line with the Open Space
Preserve reached 70.1 dBA during the mock event. Together, this evidence supports the
reasonable inference that the Project may have significant impacts on biological
resources.
By contrast, there is no substantial evidence supporting a fair argument that the
Project may have significant noise impacts on visitors to the Open Space Preserve. The
Open Space Preserve is open to the public by permit only; no evidence was submitted as
to the frequency with which such permits are issued or how close permit holders may get
to the Property. While Midpeninsula plans to establish trails and open the Open Space
Preserve to the public at some unspecified time in the future, a “negative declaration
‘must focus on impacts to the existing environment, not hypothetical situations.’ ”
(Communities for a Better Environment v. South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310, 322; San Joaquin Raptor Rescue Center v. County of Merced
(2007) 149 Cal.App.4th 645, 658 [“the baseline environmental setting must be premised
on realized physical conditions on the ground”]; Guidelines, § 15126.2, subd. (a) [“In
assessing the impact of a proposed project on the environment, the lead agency should
normally limit its examination to changes in the existing physical conditions in the
affected area”].) Thus, we need not consider the impacts on hypothetical users of
nonexistent trails.
there exists a fair argument that Project-related crowd noise may have significant noise
impacts.
22
E. Traffic Impacts
Based on our review of the record, we conclude there is substantial evidence to
support a fair argument that the Project may have a significant impact on traffic and thus
the environment. As described below, such an argument finds support in evidence the
Project will--at times--double traffic volume on a narrow, windy, substandard road with a
history of accidents.
Appendix G to the CEQA Guidelines recommends that, in determining whether a
project will have significant traffic impacts, lead agencies consider whether it will
“[s]ubstantially increase hazards due to a design feature (e.g., sharp curves or dangerous
intersections) or incompatible uses (e.g., farm equipment)?” (Guidelines, appen. G, §
XVI, subd. (d).) Neighbors and the Association’s expert provided factual information
indicating the design feature-related hazards exist on Summit Road in the vicinity of the
Property, including stretches of road that are narrower than the standard 24 feet wide (and
absence of centerline striping in those stretches), a lack of graded or paved shoulders, and
more than 30 blind curves. At one location, Summit Road is only nine feet six inches
wide. Contrary to the Trust’s contention, neighbors did not “simply claim that roads
utilized by the project are already crowded and unsafe” or offer the sort of
“unsubstantiated conclusions” held to be insufficient in Leonoff, supra, 222 Cal.App.3d
at page 1352. Instead, those whose testimony we have cited related facts about road
conditions based upon their personal knowledge. Hexagon’s reports show the Project
will cause traffic volumes on Summit Road to more than double during the hours when
guests arrive and depart.12 Together, the foregoing evidence supports a fair argument that
12
Hexagon opined that events contemplated under the Project would generate an
increase in vehicle traffic of 43 vehicles in the hour prior to the event start. (Although
not addressed by Hexagon, logic dictates the same traffic increase would occur in the
hour after the event ended.) Hexagon concluded that between 5:00 and 6:00 p.m. on
Saturdays (the time on Saturdays when traffic on Summit is heaviest), there usually are
36 vehicle trips.
23
increased traffic from the Project will substantially increase existing design feature-
related hazards.
A Caltrans “safety review . . . revealed an accident history [in the vicinity of the
Project] that is twice the statewide average.” While Caltrans apparently concluded the
Project posed no significant traffic or road safety impacts, evidence of a heightened
accident rate in the area supports a fair argument that doubling the traffic volume for two
hours on event days (including one hour after dark) may have a significant impact on
traffic safety.13
Taken together, the foregoing evidence supports a fair argument the Project may
have significant traffic impacts. Thus, the County abused its discretion in failing to
require an EIR addressing the potentially significant traffic impact of the Project.
F. Attorney Fees
The Trust contends the Association is not entitled to attorney fees under Code of
Civil Procedure section 1021.5 (hereafter section 1021.5). In its cross-appeal, the
Association maintains the trial court erred in refusing to apply a multiplier.
1. Section 1021.5
Section 1021.5 “provide[s] courts with the statutory authority to award attorney
fees under a private attorney general theory.” (Bui v. Nguyen (2014) 230 Cal.App.4th
1357, 1364 (Bui).) “The doctrine’s purpose ‘is to encourage suits enforcing important
public policies by providing substantial attorney fees to successful litigants in such
cases.’ ” (Children & Families Com. of Fresno County v. Brown (2014) 228 Cal.App.4th
45, 55.) A plaintiff is eligible for attorney fees under section 1021.5 when four criteria
13
Caltrans’ sign off is not as persuasive as the Trust contends, particularly given
the lack of any explanation for why the agency concluded the Project posed no significant
traffic or road safety impacts. Moreover, Caltrans’ conclusory e-mail approval does not
rebut, contradict, or diminish the reliability or credibility of the evidence that of Summit
Road is narrow, curvy, and has many blind corners.
24
are met: (1) the action “ ‘has resulted in the enforcement of an important right affecting
the public interest’ ”; (2) “ ‘a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons’ ”; (3) private
enforcement was necessary; and (4) the financial burden of private enforcement warrants
subsidizing the successful party’s attorneys. (Bui, supra, at p. 1365.) “The moving party
bears ‘[t]he burden [of] establish[ing] each prerequisite to an award of attorney fees
under section 1021.5.’ ” (Ibid.)
Where attorney fees are awarded under section 1021.5, “the fee setting inquiry
ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended
multiplied by the reasonable hourly rate.” (Building a Better Redondo, Inc. v. City of
Redondo Beach (2012) 203 Cal.App.4th 852, 870.) “Next, the court engages in the
multiplier analysis, and determines whether the lodestar figure should be augmented or
diminished by one or more relevant factors” (Cates v. Chiang (2013) 213 Cal.App.4th
791, 820), “including: ‘(1) the novelty and difficulty of the questions involved, (2) the
skill displayed in presenting them, (3) the extent to which the nature of the litigation
precluded other employment by the attorneys, (4) the contingent nature of the fee award.’
” (Id. at p. 822.)
“Generally, an order granting or denying attorney fees under section 1021.5 is
reviewed for abuse of discretion.” (Bui, supra, 230 Cal.App.4th at p. 1367.) “[T]he
award will be upheld unless ‘ “there is no substantial evidence to support the trial court’s
findings or when there has been a miscarriage of justice. If the trial court has made no
findings, the reviewing court will infer all findings necessary to support the judgment and
then examine the record to see if the findings are based on substantial evidence.” ’ ” (Id.
at p. 1368.)
2. Entitlement to Attorney Fees
The Trust’s challenge to the attorney fee award is based on the second and fourth
criteria for an award of fees under section 1021.5--the significant benefit and financial
25
burden requirements.
a. Significant Benefit
“[T]he ‘significant benefit’ that will justify an attorney fee award [under section
1021.5] need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may
be recognized simply from the effectuation of a fundamental constitutional or statutory
policy.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939
(Woodland Hills).) Because “the public always has a significant interest in seeing that
legal strictures are properly enforced . . . , in a real sense, the public always derives a
‘benefit’ when illegal private or public conduct is rectified.” (Ibid.) However, “the
Legislature did not intend to authorize an award of attorney fees in every case involving a
statutory violation.” (Ibid.) Accordingly, the trial court must “determine the significance
of the benefit, as well as the size of the class receiving benefit, from a realistic
assessment, in light of all the pertinent circumstances, of the gains which have resulted in
a particular case.” (Id. at pp. 939-940.)
In the CEQA context, courts have held that actions requiring a governmental
agency to analyze or reassess environmental impacts associated with a proposed project
confer a significant benefit. (See Environmental Protection Information Center v.
Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 235 [litigation
conferred significant benefit where it required resubmitted sustained yield plan, which
would “more accurately analyze the impacts of the proposed logging on individual
planning watersheds”]; RiverWatch v. County of San Diego Dept. of Environmental
Health (2009) 175 Cal.App.4th 768, 782 (RiverWatch) [members of the public living and
working near the proposed project site benefitted from trial court’s ruling, which required
agency to further analyze project’s environmental impacts]; Center for Biological
Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 880 [residents
potentially impacted by project significantly benefitted from peremptory writ of mandate
requiring County to set aside EIR and conduct more in-depth analysis of project’s impact
26
on air quality and water supply]; Coalition for L.A. County Planning etc. Interest v.
Board of Supervisors (1977) 76 Cal.App.3d 241, 248, fn. 7 [actions invalidating EIR as
inadequate benefitted county residents by requiring “a reasoned consideration of
alternatives to the plan as well as the assurance that relevant state declared policies have
not been ignored”].) Similarly, as a result of this action, the County will be required to “
‘identify and analyze the significant effects on the environment, state how those impacts
can be mitigated or avoided, and identify alternatives to the project’ ” in the course of
preparing an EIR. (California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 979.)
We are not persuaded by the Trust’s contention that the litigation has not
conferred a significant benefit because the trial court did not require the County to
perform any additional studies for the EIR or impose any new mitigation measures. It is
true that the Project might be approved without modification even if it is determined it
will have significant effects on the environment. (California Native Plant Society v. City
of Santa Cruz, supra, 177 Cal.App.4th at p. 982 [“a project with significant
environmental impacts may be approved only if the decisionmaking body finds (1) that
identified mitigation measures and alternatives are infeasible and (2) that unavoidable
impacts are acceptable because of overriding considerations”].) But even “[i]f that
[occurs,] it would still be true that the residents of the county would have had the benefit
of a reasoned consideration of alternatives to the [Project] as well as the assurance that
relevant state declared policies have not been ignored.” (Coalition for L.A. County
Planning etc. Interest v. Board of Supervisors, supra, 76 Cal.App.3d at p. 248, fn. 7.)
The significant benefit justifying an award of fees is the proper assessment of the
environmental impacts associated with the Project. (RiverWatch, supra, 175 Cal.App.4th
at p. 781.)
The Trust’s reliance on Concerned Citizens of La Habra v. City of La Habra
(2005) 131 Cal.App.4th 329 is misplaced. There, the trial court found a “ ‘minute
27
blemish’ ” (id. at p. 333) in the CEQA analysis that “probably c[ould] be repaired” (ibid.)
without the preparation of an EIR and “was not likely to change the project.” (Id. at p.
335.) Here, the trial court determined the MND was invalid and an EIR should have been
prepared.
The Trust also argues the size of the class receiving any benefit consists of only
neighboring property owners and is too small to justify an award of fees. We disagree.
The preservation of biological resources and the safety of public roadways are of interest
to the general public. The trial court reasonably could have concluded this suit conferred
a significant benefit on the general public by requiring the County to further assess these
“important environmental consideration[s].” (RiverWatch, supra, 175 Cal.App.4th at p.
782 [“The significant benefit criterion is satisfied where, as here, the litigation permits
affected parties to provide additional input on remand--in this case, to voice their
concerns about environmental impacts on water sources, traffic and mitigation plans
involving open space.”].)
For the foregoing reasons, we discern no abuse of discretion in the determination
that the benefit conferred here is sufficiently significant to warrant an award under
section 1021.5.
b. Financial Burden
The financial burden criterion requires “ ‘the cost of the claimant’s legal victory
[to] transcend[] his personal interest.’ ” (Woodland Hills, supra, 23 Cal.3d at p. 941.) “
‘This requirement focuses on the financial burdens and incentives involved in bringing
the lawsuit.’ ” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215.) In Whitley,
the Supreme Court laid out “[t]he method for weighing costs and benefits.” (Ibid.) It
explained that “ ‘[t]he trial court must first fix--or at least estimate--the monetary value of
the benefits obtained by the successful litigants themselves . . . [; second,] discount these
total benefits by some estimate of the probability of success at the time the vital litigation
decisions were made which eventually produced the successful outcome . . . . [¶] [; third,
28
determine] the costs of the litigation . . . [; and finally, award fees unless] the expected
value of the litigant’s own monetary award exceeds by a substantial margin the actual
litigation costs.’ ” (Id. at pp. 1215-1216.)
Here, neither the Association nor its members enjoyed any direct pecuniary benefit
from the litigation. The Trust argues Association members obtained an indirect
pecuniary benefit--avoiding reductions in their property values. The Trust points out that
many of the Association’s members declared in writing that if the Project was approved it
would reduce the value of their homes. No evidence was submitted attempting to
quantify any potential property value reductions. The Trust posits that the suit prevented
losses equal at least $500,000, but that figure is based on conjecture, not fact.14
“Any benefit in the form of preventing erosion of property values was at least once
removed from the results of the litigation in that [the trial court’s ruling] by no means
guaranteed” changes to the Project. (Citizens Against Rent Control v. City of Berkeley
(1986) 181 Cal.App.3d 213, 230.) “Also, the amount of any monetary advantage was
speculative.” (Ibid.) “On these facts, [the Trust’s] argument of financial motivation
disintegrates into a claim that property owners are cut off from the benefits of section
1021.5 whenever they pursue litigation that might someday help them further or secure
their property interests. The claim is untenable.” (Id. at pp. 230-231.) Because “[a]ny
potential financial incentive for [the Association] and its members is indirect and largely
speculative,” the trial court did not abuse its discretion in concluding the financial burden
criterion was satisfied. (Plumbers & Steamfitters, Local 290 v. Duncan (2007) 157
Cal.App.4th 1083, 1099; see also Galante Vineyards v. Monterey Peninsula Water
14
Specifically, the Trust’s counsel “assume[d]” that 25 homes would be impacted
and guessed that each home’s value would be reduced by $20,000, saying “what’s a
considerable reduction in property value? [¶] No one ever quantifies it. Is it [$]50,000 on
a $900,000 home? We don’t know. But let’s just say, to be conservative, it’s only
[$]20,000.”
29
Management Dist. (1997) 60 Cal.App.4th 1109, 1127 [lack of “direct pecuniary benefit to
petitioners in the judgment”]; id. at pp. 1127-1128 [and fact that “any future money
advantage for petitioners is speculative . . . tend to favor a grant of attorney’s fees”].)
3. Multiplier
The Association requested a total lodestar figure of $176,184.50, plus a multiplier
of 1.75 for the contingency nature of the case for a total request of $308,322.87. The trial
court awarded a reduced lodestar of $145,774, and no multiplier. In its order, the court
stated “[n]o multiplier is justified here where Petitioner’s counsel took the case only on a
partial contingent basis. The billing rate of Petitioner’s counsel already reflects the
specialized nature of CEQA litigation and the full risk of contingency representation was
never present.” In its cross-appeal, the Association contends the trial court’s ruling was
based on an error of law--namely, the incorrect premise that a multiplier cannot be used
in a partial contingency case. The Trust responds that the trial court understood and
exercised its discretion to deny a multiplier based on the facts.
In our view, the trial court’s statement is ambiguous. “The most fundamental rule
of appellate review is that a judgment is presumed correct, all intendments and
presumptions are indulged in its favor, and ambiguities are resolved in favor of
affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “It is a
basic presumption indulged in by reviewing courts that the trial court is presumed to have
known and applied the correct statutory and case law in the exercise of its official duties.”
(People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Accordingly, we must presume the
trial court understood and applied the law concerning the use of a multiplier.
Given that presumption, the question on appeal is whether the trial court abused its
discretion by denying a multiplier given the Association’s attorneys assumed a contingent
risk of partial nonpayment. A “trial court is not required to include a fee enhancement to
the basic lodestar figure for contingent risk . . . .” (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1138.) The trial judge is in the best position to evaluate the professional services
30
rendered at trial and the amount of attorney fees to award is a matter within its sound
discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Nothing in the
record convinces us the trial court’s decision to deny a multiplier was “ ‘clearly wrong.’ ”
(Ibid.) Accordingly, we find no abuse of discretion.
III. DISPOSITION
The judgment is affirmed. Respondent Keep Our Mountains Quiet is awarded
costs on the Candice Clark Wozniak Trust appeal.
The Candice Clark Wozniak Trust is awarded costs on Keep Our Mountains Quiet
cross-appeal.
31
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Keep Our Mountains Quiet v. County of Santa Clara
H039707
Trial Court: Santa Clara County Superior Court
Superior Court No. 112CV221481
Trial Judge: Hon. Joseph H. Huber
Counsel for Plaintiff/Appellant: Wittwer Parkin
Keep Our Mountains Quiet William P. Parkin
Jonathan Wittwer
Counsel for Respondent: No appearance for Respondent
County of Santa Clara
Counsel for Real Party in Remy Moose Manley
Interest/Appellant: James G. Moose
Candice Clark Wozniak Trust Sabrina V. Teller
Jennifer S. Holman
Matteoni, O’Laughlin & Hechtman
Barton G. Hechtman
Counsel for Amicus Curiae: The Sohagi Law Group
League of California Cities Margaret M. Sohagi
California State Association of Philip A. Seymour
Counties R. Tyson Sohagi
Keep Our Mountains Quiet v. County of Santa Clara
H039707
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95 N.J. Super. 382 (1967)
231 A.2d 252
STATE OF NEW JERSEY, PLAINTIFF,
v.
BARBARA MASSA AND FRANK MASSA, DEFENDANTS.
Superior Court of New Jersey, Morris County Court, Law Division.
Decided June 1, 1967.
*383 Mr. Bertram Latzer, Assistant Prosecutor of Morris County, for plaintiff (Mr. Frank C. Scerbo, Prosecutor, attorney).
Mrs. Barbara Massa and Mr. Frank Massa appeared pro se.
COLLINS, J.C.C.
This is a trial de novo on appeal from the Pequannock Township Municipal Court. Defendants were charged and convicted with failing to cause their daughter Barbara, age 12, regularly to attend the public schools of the district and further for failing to either send Barbara to a private school or provide an equivalent education elsewhere than at school, contrary to the provisions of N.J.S.A. 18: 14-14. The municipal magistrate imposed a fine of $2,490 for both defendants.
Mr. and Mrs. Massa appeared pro se. Mrs. Massa conducted the case; Mr. Massa concurred.
The State presented two witnesses who testified that Barbara had been registered in the Pequannock Township School but failed to attend the 6th grade class from April 25, 1966 to June 1966 and the following school year from September 8, 1966 to November 16, 1966 a total consecutive absence of 84 days.
*384 Mrs. Massa testified that she had taught Barbara at home for two years before September 1965. Barbara returned to school in September 1965, but began receiving her education at home again on April 25, 1966.
Mrs. Massa said her motive was that she desired the pleasure of seeing her daughter's mind develop. She felt she wanted to be with her child when the child would be more alive and fresh. She also maintained that in school much time was wasted and that at home a student can make better use of her time.
Mrs. Massa is a high school graduate. Her husband is an interior decorator. Neither holds a teacher's certificate. However, the State stipulated that a child may be taught at home and also that Mr. or Mrs. Massa need not be certified by the State of New Jersey to so teach. The sole issue in this case is one of equivalency. Have defendants provided their daughter with an education equivalent to that provided by the Pequannock Township School System?
Mrs. Massa introduced into evidence 19 exhibits. Five of these exhibits, in booklet form, are condensations of basic subjects, booklets are concise and seem to contain all the basic subject material for the respective subjects. Mrs. Massa also introduced textbooks which are used as supplements to her own compilations as well as for test material and written problems.
Mrs. Massa introduced English, spelling and mathematics tests taken by her daughter at the Pequannock School after she had been taught for two years at home. The lowest mark on these tests was a B.
Other exhibits included one of over 100 geography booklets prepared by Mrs. Massa from National Geographic Magazine, each containing articles and maps concerning the topography and societies of a particular part of the world; a 1' wide and 30' long scroll depicting the evolution of life on earth commencing five billion years ago and continuing to the present, which appears to be a good visual aid not merely for children but adults as well; a series of 27 maps for study and memorization; *385 textbooks used to supplement defendant's material; examples of books used as either references or historical reading, and photographs to show that the Massa family lives a normal, active, wholesome life. The family consists of the parents, three sons (Marshall, age 16, and Michael, age 15, both attend high school; and William, age 6) and daughter Barbara.
There is also a report by an independent testing service of Barbara's scores on standard achievement tests. They show that she is considerably higher than the national median except in arithmetic.
Mrs. Massa satisfied this court that she has an established program of teaching and studying. There are definite times each day for the various subjects and recreation. She evaluates Barbara's progress through testing. If Barbara has not learned something which has been taught, Mrs. Massa then reviews that particular area.
Barbara takes violin lessons and attends dancing school. She also is taught art by her father, who has taught this subject in various schools.
Mrs. Massa called Margaret Cordasco as a witness. She had been Barbara's teacher from September 1965 to April 1966. She testified basically that Barbara was bright, well behaved and not different from the average child her age except for some trouble adjusting socially.
The State called as a witness David MacMurray, the Assistant Superintendent of Pequannock Schools. He testified that the defendants were not giving Barbara an equivalent education. Most of his testimony dealt with Mrs. Massa's lack of certification and background for teaching and the lack of social development of Barbara because she is being taught alone.
He outlined procedures which Pequannock teachers perform, such as evaluation sheets, lesson plans and use of visual aids. He also stressed specialization, since Pequannock schools have qualified teachers for certain specialized subjects. He did not think the defendants had the specialization necessary *386 to teach all basic subjects. He also testified about extra-curricular activity, which is available but not required.
The State placed six exhibits in evidence. These included a more recent mathematics book than is being used by defendants, a sample of teacher evaluation, a list of visual aids, sample schedules for the day and lesson plans, and an achievement testing program.
Leslie Rear, the Morris County Superintendent of Schools, then testified for the State. His testimony, like that of MacMurray, dealt primarily with social development of the child and Mrs. Massa's qualifications. He felt that Barbara was not participating in the learning process since she had not participated in the development of the material. Mrs. Massa, however, testified that these materials were used as an outline from which she taught her daughter and as a reference for her daughter to use in review not as a substitute for all source material.
N.J.S.A. 18:14-14 provides:
"Every parent, guardian or other person having custody and control of a child between the ages of 6 and 16 years shall cause such child regularly to attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or to receive equivalent instruction elsewhere than at school." (Emphasis added)
State v. Vaughn, 44 N.J. 142 (1965), interpreted the above statute to permit the parent having charge and control of the child to elect to substitute one of the alternatives for public school. It is then incumbent upon the parent to introduce evidence showing one of the alternatives is being substituted. "If there is such evidence in the case, then the ultimate burden of persuasion remains with the State," (at p. 147).
N.J.S.A. 18:14-39 provides for the penalty for violation of N.J.S.A. 18:14-14:
"A parent, guardian or other person having charge and control of a child between the ages of 6 and 16 years, who shall fail to comply with *387 any of the provisions of this article relating to his duties shall be deemed a disorderly person and shall be subject to a fine of not more than $5.00 for a first offense and not more than $25.00 for each subsequent offense, in the discretion of the court."
The statute subjects the defendants to conviction as a disorderly person, a quasi-criminal offense. In quasi-criminal proceedings the burden of proof is beyond a reasonable doubt. State v. Cestone, 38 N.J. Super. 139, 148 (App. Div. 1955).
This case presents two questions on the issue of equivalency for determination. What does the word "equivalent" mean in the context of N.J.S.A. 18:14-14? And, has the State carried the required burden of proof to convict defendants?
In Knox v. O'Brien, 7 N.J. Super. 608 (1950), the County Court interpreted the word "equivalent" to include not only academic equivalency but also the equivalency of social development. This interpretation appears untenable in the face of the language of our own statute and also the decisions in other jurisdictions.
If the interpretation in Knox, supra, were followed, it would not be possible to have children educated outside of school. Under the Knox rationale, in order for children to develop socially it would be necessary for them to be educated in a group. A group of students being educated in the same manner and place would constitute a de facto school. Our statute provides that children may receive an equivalent education elsewhere than at school. What could have been intended by the Legislature by adding this alternative?
The Legislature must have contemplated that a child could be educated alone provided the education was equivalent to the public schools. Conditions in today's society illustrate that such situations exist. Examples are the child prodigy whose education is accelerated by private tutoring, or the infant performer whose education is provided by private tutoring. If group education is required by our statute, then these examples as well as all education at home would have to be eliminated.
*388 The court in State v. Counort, 69 Wash. 361, 124 P. 910, 41 L.R.A., N.S. 95 (Wash. Sup. Ct. 1912), held that defendant had not complied with the state law on compulsory school attendance. The Washington statute, however, provided that parents must cause their child to attend public school or private school, or obtain an excuse from the superintendent for physical or mental reasons or if such child shall have attained a reasonable proficiency in the branches of learning required by law. The conviction was upheld because of the failure of the parents to obtain permission from the superintendent.
In discussing the nature of schools the court said, "This provision of the law [concerning what constitutes a private school] is not to be determined by the place where the school is maintained, nor the individuality or number of pupils who attend it." (124 P., at p. 912; emphasis added). The court further said that the evidence of the state was to the effect that defendant maintained no school at his home. This is not the case here. Mrs. Massa was certainly teaching Barbara something.
The court in State v. Peterman, 32 Ind. App. 665, 70 N.E. 550, 551 (Ind. App. Ct. 1904), also commented on the nature of a school, stating, "We do not think that the number of persons, whether one or many, makes a place where instruction is imparted any less or more a school." That case held that a child attending the home of a private tutor was attending a private school within the meaning of the Indiana statute.
This court agrees with the above decisions that the number of students does not determine a school and, further, that a certain number of students need not be present to attain an equivalent education.
A different form of legislative intention is illustrated by the case of People v. Turner, 121 Cal. App.2d Supp. 861, 263 P.2d 685 (Cal. Super. Ct. 1953). The California statute provided that parents must send their children to public school or a private school meeting certain prescribed conditions, or that the children be instructed by a private tutor or *389 other person possessing a valid state credential for the grade taught. Defendants were convicted for failure to have such state credentials.
Other similar statutes are discussed in Rice v. Commonwealth, 188 Va. 224, 49 S.E.2d 342 (Sup. Ct. 1948), where the Virginia law required certification of teachers in the home and specified the number of hours and days that the child was to be taught each year; Parr v. State, 117 Ohio St. 23, 157 N.E. 555 (Ohio Sup. Ct. 1927), where the Ohio statute provided that a child would be exempted if he is being instructed at home by a qualified person in the subjects required by law.
Perhaps the New Jersey Legislature intended the word "equivalent" to mean taught by a certified teacher elsewhere than at school. However, I believe there are teachers today teaching in various schools in New Jersey who are not certified. The prosecutor stipulated, as stated above, that the State's position is that a child may be taught at home and that a person teaching at home is not required to be certified as a teacher by the State for the purpose of teaching his own children. Had the Legislature intended such a requirement, it would have so provided.
The other type of statute is that which allows only public school or private school education without additional alternatives. See People v. Levisen, 404 Ill. 574, 90 N.E.2d 213, 14 A.L.R.2d 1364 (Sup. Ct. 1950); State v. Hoyt, 84 N.H. 38, 146 A. 170 (N.H. Sup. Ct. 1929), and State v. Peterman, supra. Even in this situation, home education has been upheld as constituting a private school. People v. Levisen and State v. Peterman, supra.
The case of Commonwealth v. Roberts, 159 Mass. 372, 34 N.E. 402 (Mass. Sup. Jud. Ct. 1893), dealt with a statute similar to New Jersey's. The Massachusetts statute permitted instruction in schools or academies in the same town or district, or instruction by a private tutor or governess, or by the parents themselves provided it is given in good faith and is sufficient in extent. The court stated that under this statute the parents may show that the child has been sufficiently and *390 properly instructed. The object of the statute was stated to be that all children shall be educated, not that they shall be educated in a particular way.
It is in this sense that this court feels the present case should be decided. The purpose of the law is to insure the education of all children. In State v. Peterman, supra, the court stated:
"The law was made for the parent, who does not educate his child, and not for the parent * * * [who] places within the reach of the child the opportunity and means of acquiring an education equal to that obtainable in the public schools of the state." (70 N.E., at p. 552)
People v. Levisen also commented on the spirit of the relevant statute stating:
"The law is not made to punish those who provide their children with instruction equal or superior to that obtainable in public schools. It is made for the parent who fails or refuses to properly educate his child." (90 N.E.2d, at p. 215)
Faced with exiguous precedent in New Jersey and having reviewed the above cited cases in other states, this court holds that the language of the New Jersey statute, N.J.S.A. 18:14-14, providing for "equivalent education elsewhere than at school," requires only a showing of academic equivalence. As stated above, to hold that the statute requires equivalent social contact and development as well would emasculate this alternative and allow only group education, thereby eliminating private tutoring or home education. A statute is to be interpreted to uphold its validity in its entirety if possible. Rainbow Inn, Inc. v. Clayton Nat. Bank, 86 N.J. Super. 13 (App. Div. 1964). This is the only reasonable interpretation available in this case which would accomplish this end.
Having determined the intent of the Legislature as requiring only equivalent academic instruction, the only remaining question is whether the defendants provided their daughter with an education equivalent to that available in *391 the public schools. After reviewing the evidence presented by both the State and the defendants, this court finds that the State has not shown beyond a reasonable doubt that defendants failed to provide their daughter with an equivalent education.
The majority of testimony of the State's witnesses dealt with the lack of social development.
The other point pressed by the State was Mrs. Massa's lack of teaching ability and techniques based upon her limited education and experience. However, this court finds this testimony to be inapposite to the actual issue of equivalency under the New Jersey statute and the stipulations of the State. In any case, from my observation of her while testifying and during oral argument, I am satisfied that Mrs. Massa is self-educated and well qualified to teach her daughter the basic subjects from grades one through eight.
The remainder of the testimony of the State's witnesses dealt primarily with the child's deficiency in mathematics. This alone, however, does not establish an educational program unequivalent to that in the public schools in the face of the evidence presented by defendants.
Defendants presented a great deal of evidence to support their position, not the least of which was their daughter's test papers taken in the Pequannock school after having been taught at home for two years. The results speak for themselves. The evidence of the State which was actually directed toward the issue of equivalency in this case fell short of the required burden of proof.
The Massa family, all of whom were present at each of the hearings, appeared to be a normal, well-adjusted family. The behavior of the four Massa children in the courtroom evidenced an exemplary upbringing.
It is the opinion of this court that defendants' daughter has received and is receiving an education equivalent to that available in the Pequannock public schools. There is no indication of bad faith or improper motive on defendants' part. Under a more definite statute with sufficient guidelines or a lesser *392 burden of proof, this might not necessarily be the case. However, within the framework of the existing law and the nature of the stipulations by the State, this court finds the defendants not guilty and reverses the municipal court conviction.
In view of the fact that defendants appeared pro se, the court suggests that the prosecutor draw an order in accordance herewith.
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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 41212
STATE OF IDAHO, ) 2014 Opinion No. 38
)
Plaintiff-Respondent, ) Filed: May 7, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
STEPHEN D. L’ABBE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge; Theresa Gardunia,
Magistrate.
Order, on intermediate appeal, affirming judgment of conviction for
speeding, affirmed.
Stephen D. L’Abbe, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GUTIERREZ, Chief Judge
Stephen D. L’Abbe appeals from the district court’s intermediate appellate decision
affirming L’Abbe’s judgment of conviction for speeding, a violation of Idaho Code § 49-654(2),
entered by the magistrate court. Generally, L’Abbe makes two arguments: (1) the magistrate
court was without subject matter jurisdiction or personal jurisdiction to try him; and (2) the
magistrate erred by ruling that L’Abbe was not entitled to a Seventh Amendment jury trial on his
speeding citation. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
L’Abbe was cited by a Boise police officer for speeding. L’Abbe pled not guilty to the
citation and a court trial was set. Prior to the court trial, L’Abbe filed several motions generally
challenging the State of Idaho’s authority and jurisdiction over him. At trial, L’Abbe made a
record of his arguments challenging the State’s authority and jurisdiction. All of his motions
1
were denied. 1 The magistrate found that L’Abbe violated Idaho Code § 49-654(2) by driving 38
mph in a 25 mph zone and entered a judgment of conviction. L’Abbe appealed to the district
court, which affirmed the judgment of conviction entered by the magistrate court. L’Abbe now
appeals to this Court.
II.
STANDARD OF REVIEW
When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
The Supreme Court reviews the trial court (magistrate) record to determine
whether there is substantial and competent evidence to support the magistrate’s
findings of fact and whether the magistrate’s conclusions of law follow from
those findings. If those findings are so supported and the conclusions follow
therefrom and if the district court affirmed the magistrate’s decision, we affirm
the district court’s decision as a matter of procedure.
Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
III.
HISTORY OF STATE COURTS’ JURISDICTION
This Court understands L’Abbe’s concerns to be centered on the legality of the judiciary,
as well as the State’s other government departments, enforcing the State’s laws over L’Abbe and
other Idaho citizens. L’Abbe believes the State of Idaho is only a corporate body, which should
only have authority to enforce laws over individuals contracted with it. As this is the third time
in less than two years that L’Abbe has appeared before this Court, asserting similar issues in all
three cases, it is apparent that this Court’s previous analyses have done little to assuage L’Abbe’s
chief concern. Additionally, a growing number of Idaho’s citizens have expressed views similar
to L’Abbe’s. With that in mind, this Court believes it is important to more fully analyze the
1
The underlying facts of the case are uncontroverted and were not challenged on
intermediate appeal. The State presented its case through the Officer’s testimony, which was not
challenged on intermediate appeal.
2
history of Idaho courts’ jurisdiction. We will now take the opportunity to attempt to inform and
educate L’Abbe and others similarly situated.
A. Authority of the States Before Adoption of the United States Constitution
Throughout L’Abbe’s briefs are express and implied references to the State of Idaho’s
lack of authority to pass, approve, execute, expound, and enforce state laws. However, L’Abbe
does submit to the authority of the Constitution of the United States and the Article III judiciary.
Missing from L’Abbe’s argument is the fact that state governments existed before the creation of
the national government, are repeatedly referred to in the U.S. Constitution, and their power and
capability are continuously referred to in federal court opinions. As the Federalist Papers reveal,
a chief concern for the people of the thirteen states was distribution of authority between the
states’ governments and the proposed federal government if they adopted the proposed U.S.
Constitution.
In Federalist Paper No. 45, James Madison provided examples of past nations that failed
for want of a powerful, centralized government. He also softened the concerns for potential lost
state power by writing, “[T]he states will retain, under the proposed Constitution, a very
extensive portion of active sovereignty . . . .” THE FEDERALIST NO. 45 (James Madison)
(emphasis added). This concern also included the degree of retained state sovereignty in
conjunction with the federal government, to which Madison wrote, “The States governments
may be regarded as constituent and essential parts of the federal government; whilst the latter is
nowise essential to the operation or organization of the former.” Id. After stating the national
government was not essential to the operation or organization of the states, he illustrated why:
The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the State
governments are numerous and indefinite. . . . 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, and the internal order,
improvement, and prosperity of the State.
Id. (emphasis added). In a later paper, Alexander Hamilton described the envisioned “few and
defined” powers delegated to the federal judiciary:
[T]he judiciary authority of the Union ought to extend to these several
descriptions of cases: 1st, to all those which arise out of the laws of the United
States, passed in pursuance of their just and constitutional powers of legislation;
2d, to all those which concern the execution of the provisions expressly contained
in the articles of Union; 3d, to all those in which the United States are a party;
3
4th, to all those which involve the PEACE of the CONFEDERACY, whether they
relate to the intercourse between the United States and foreign nations, or to that
between the States themselves; 5th, to all those which originate on the high seas,
and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the
State tribunals cannot be supposed to be impartial and unbiased.[2]
THE FEDERALIST NO. 80 (Alexander Hamilton).
Having explained the limitation of the federal judiciary’s jurisdiction, Hamilton reiterated
Madison’s claim that the state government’s retained powers were “numerous and indefinite.” “I
shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have,
unless it appears to be taken away in one of the [few and defined] enumerated modes.” THE
FEDERALIST NO. 82 (Alexander Hamilton). Hamilton later restated this point by writing:
I hold that the State courts will be divested of no part of their primitive
jurisdiction . . . and I am even of opinion that in every case in which they were not
expressly excluded by the future acts of the national legislature, they will of
course take cognizance of the causes to which those acts may give birth.
Id.
Although the Federalist Papers are not law or persuasive authority, they reveal insight to
the concerns and ideas present at the creation and formation of the federal government and the
U.S. Constitution. The Federalist Papers indicate that prior to the adoption of the U.S.
Constitution, state governments were recognized to have sovereign authority over their
jurisdictions, which included making and enforcing state laws. The Federalist Papers also
signify the concern over any sovereignty the states would be required to relinquish if the U.S.
Constitution was adopted. As both Madison and Hamilton detailed, the federal government’s
powers were “few and defined” and the state government’s powers were “numerous and
indefinite.”
B. United States Constitutional References to States’ Powers
The U.S. Constitution was written to establish and govern the national government, not to
abolish the state governments. This notion is exemplified by the U.S. Constitution’s references
to each of the three bodies of state governments: the state executive is referenced in Article I,
Section 2, Clause 4 and Article I, Section 3, Clause 2; the state legislature in Article I, Section 3,
Clause 1 and Article I, Section 3, Clause 2; and the state judiciary in Article IV, Section 1,
2
The last example refers to a case concerning citizens from differing states.
4
Clause 1. 3 Aside from the express and implied powers of the national government, the U.S.
Constitution also restricts the power of the states in a limited manner. 4 (See U.S. CONST. art. I,
§ 9, cl. 5; art. I, § 9, cl. 6; art. I, § 10, cl. 1; art. I, § 10, cl. 2; art. I, § 10, cl. 3.) The remaining
powers are left to the states or the people.
The Tenth Amendment to the U.S. Constitution describes the reserved state powers.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. This
reservation of states’ powers was reiterated by the Supreme Court:
The Tenth Amendment likewise restrains the power of Congress, but this limit is
not derived from the text of the Tenth Amendment itself, which, as we have
discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that
the power of the Federal Government is subject to limits that may, in a given
instance, reserve power to the States.
New York v. United States, 505 U.S. 144, 156-57 (1992).
Thus, the U.S. Constitution has relatively little to say about the states’ powers. This is
because the document was intended for the creation and governance of the national government.
Still, it shows clear intent to reserve powers for the states. The powers reserved to the states are
those that are not necessary for the administration of the newly formed national government.
C. Creation of the State of Idaho and Its Authority
It is clear from the documents available at the time of the U.S. Constitution’s proposal
that the thirteen then-existing states would take part in the U.S. Constitution’s adoption process.
These states, and their sovereignty, would both benefit and suffer from the protections and
restrictions of the U.S. Constitution. The creation of additional states was addressed by the U.S.
Constitution’s provision controlling the admittance of new states to the Union. The newly
admitted states were guaranteed equal footing with other states upon admission. See, e.g., U.S.
CONST. art. IV, § 3, cl. 1; art. IV, § 3, cl. 2; Utah Div. of State Lands v. United States, 482 U.S.
193 (1987); Skiriotes v. Florida, 313 U.S. 69, 77 (1941).
Article IV, Section 3, Clause 1 of the U.S. Constitution grants Congress the ability to
admit new states into the Union, but not to form states. The “equal footing” requirement means
3
The examples in this list were limited for brevity.
4
The implied powers are only those that are necessary and proper to carry out the
requirements of the U.S. Constitution. U.S. CONST. art. I, § 8, cl. 18.
5
Congress cannot admit an entity that is considered less than a currently existing state. Skiriotes,
313 U.S. at 77. For a state to be admitted, it must already exist as a separate political body and
possess a constitution. See, ACT FOR ADMISSION OF WEST VIRGINIA INTO UNION, 10 Op. Att’y
Gen. 427 (1862). Therefore, the people using the powers reserved to the states or the people via
the Tenth Amendment, must pass a constitution before Congress can vote on admitting a new
state to the Union. See generally, Coyle v. Smith, 221 U.S. 559, 568-570 (1911); Conway v.
United States, 1 Ct. Cl. 68 (1863).
In 1889, the people of the Territory of Idaho held a constitutional convention. See Idaho
Admission Bill, ch. 656, 26 Stat. 215 (1890). Later in the same year, the people of the territory
voted to adopt the proposed constitution. Id. The Constitution of the State of Idaho was
approved on July 3, 1890, when President Benjamin Harrison signed the Idaho Admission Bill,
admitting Idaho into the Union. Id.
The Idaho Constitution, which was created and voted on by the people of the Territory of
Idaho and approved by President Harrison, creates departments of government. IDAHO CONST.
art. II, § 1. The Idaho Constitution also distributes the state’s powers of those departments that it
creates. Article III, section 1, of the Idaho Constitution provides, “The legislative power of the
state shall be vested in a senate and house of representatives.” Additionally, article V, section 2
of the Idaho Constitution provides in part:
The judicial power of the state shall be vested in a court for the trial of
impeachments, a Supreme Court, district courts, and such other courts inferior to
the Supreme Court as established by the legislature. . . . The jurisdiction of such
inferior courts shall be as prescribed by the legislature.
Thus, the creation and the authority the State of Idaho has, is derived from both the people of the
state and the national government. The people had to vote on and establish a state constitution
before the national government would admit Idaho into the Union. The national government had
to admit Idaho into the Union before Idaho could be guaranteed “equal footing” with currently
existing states. Due to the equal footing requirement, Idaho has the same state powers and
restrictions as the original thirteen states that adopted the U.S. Constitution.
6
IV.
ANALYSIS
A. The Magistrate Court Had Both Subject Matter and Personal Jurisdiction
L’Abbe primarily argues that the district court, acting in its intermediate appellate
capacity, erred by finding that the magistrate court had subject matter and personal jurisdiction to
enter judgment in L’Abbe’s case. 5 Whether a court lacks jurisdiction is a question of law, over
which this Court exercises free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701
(2004). To properly proceed in a criminal case, a court must acquire both personal and subject
matter jurisdiction. State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004). Personal
jurisdiction refers to a court’s power to bring a person into its adjudicative process, whereas
subject matter jurisdiction refers to jurisdiction over the nature of the case and the type of relief
sought. State v. Ambro, 142 Idaho 77, 79, 123 P.3d 710, 712 (Ct. App. 2005). Thus, without
personal jurisdiction, the court has no person to hold accountable; without subject matter
jurisdiction, the court has no alleged crime to hold the person accountable for. Rogers, 140
Idaho at 228, 91 P.3d at 1132.
L’Abbe asserts the magistrate court lacked subject matter jurisdiction to try him because
the magistrate court is not an Article III court under the U.S. Constitution. 6 However, as we
addressed above, state governments are not created by the U.S. Constitution. Article V, section 2
of the Idaho Constitution delegates the state’s judicial powers to the state’s courts and delegates
the power to prescribe the inferior courts’ jurisdiction to the legislature. This provision of the
Idaho Constitution was intended to make the legislature the sole authority in determining the
jurisdiction of inferior courts. Acker v. Mader, 94 Idaho 94, 96, 481 P.2d 605, 607 (1971). In
accordance with article V, section 2 of the Idaho Constitution, the legislature enacted Idaho Code
§ 1-2201, establishing in each county of the state of Idaho a magistrate division of the district
court. Subject to the rules promulgated by the Idaho Supreme Court, the legislature also
assigned to the magistrate division those proceedings arising under the Idaho Traffic Infractions
Act. I.C. § 1-2208; see also Idaho Infraction Rule 4 (“Every magistrate in the state of Idaho is
5
L’Abbe’s brief generally challenges both the magistrate and district court’s decisions.
This Court will address these issues on appeal under our Pelayo standard of review above.
6
L’Abbe’s Seventh Amendment issue is addressed under subsection B.
7
hereby assigned and granted the authority and jurisdiction to hear, process and determine . . . any
citable offense alleged to have occurred within the state of Idaho.”) Thus, the magistrate court
had subject matter jurisdiction to try L’Abbe’s speeding violation infraction.
L’Abbe also asserts that the magistrate court did not have personal jurisdiction over him
because he only made a special appearance to challenge the magistrate’s jurisdiction in this case.
The State of Idaho has personal jurisdiction over any person who commits all or part of a crime
within its territory. I.C. § 18-202; see also Rogers, 140 Idaho at 228, 91 P.3d at 1132. The
Supreme Court of Idaho has held that a traffic infraction is criminal in nature. State v. George,
127 Idaho 693, 699, 905 P.2d 626, 632 (1995); see also IDAHO CONST. art. V, § 1 (“[E]very
action prosecuted by the people of the state as a party, against a person charged with a public
offense, for the punishment of the same, shall be termed a criminal action.”). In a criminal case,
an Idaho court acquires personal jurisdiction over the defendant after his or her first appearance
in that case. Rogers, 140 Idaho at 228, 91 P.3d at 1132. 7
Aside from L’Abbe’s alleged special appearance, which is of no significance, he does not
challenge the claim that he made an appearance in this case at the pretrial conference. 8 Thus, the
magistrate court acquired personal jurisdiction over L’Abbe when he appeared at the pretrial
conference for the traffic infraction committed within this state.
B. No Right to a Seventh Amendment Jury Trial for an Infraction Citation
L’Abbe argues that the district court, acting in its intermediate appellate capacity, erred
by finding that the magistrate correctly denied L’Abbe a Seventh Amendment jury trial to
determine if L’Abbe committed a traffic violation. The Seventh Amendment to the U.S.
Constitution refers to common law suits in federal court, to which a jury trial is guaranteed if the
value in controversy exceeds twenty dollars.
The U.S. Supreme Court has held that a Seventh Amendment right to a jury trial in a civil
case is not incorporated by the Fourteenth Amendment and is not applicable to the states.
7
Additionally, this Court has “consistently and unequivocally rejected the notion that a
state must contract with a citizen either to obtain personal jurisdiction or to subject the citizen to
its laws.” State v. Simmons, 115 Idaho 877, 878, 771 P.2d 541, 542 (Ct. App. 1989).
8
L’Abbe’s reference to a special appearance is misplaced. Idaho Rule of Civil
Procedure 4(i)(2) allows for a special appearance to contest personal jurisdiction. However, no
similar rule exists in criminal law.
8
Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 216-17 (1916). Because of the
holding in Bombolis, and the Supreme Court’s subsequent holdings on the issue, L’Abbe has no
constitutional right to a Seventh Amendment jury trial in state court.
Additionally, the Idaho legislature has denied the right to a jury trial for traffic
infractions. I.C. § 49-1502(1) (“The procedure for processing an infraction citation and the trial
thereon, if any, shall be the same as provided for the processing of a misdemeanor citation under
rules promulgated by the supreme court, except there shall be no right to a trial by jury.”
(emphasis added)). As a result, L’Abbe had no right to either a federal or state jury trial.
C. Other Claims
L’Abbe concedes that the definitive issue is jurisdiction. However, he presents several
nonjurisdictional arguments on appeal. L’Abbe previously used similar arguments in an attempt
to overturn two prior convictions, which this Court affirmed in unpublished opinions. See State
v. L’Abbe, Docket No. 40833 (Ct. App. Nov. 25, 2013); State v. L’Abbe, Docket No. 39376 (Ct.
App. Sept. 4, 2012). Upon review of the record, we conclude that L’Abbe’s nonjurisdictional
arguments are without merit. In addition, L’Abbe fails to support his arguments with citations to
relevant authority, as the authority he cites is inapplicable or irrelevant. As a result, L’Abbe’s
nonjurisdictional arguments are meritless.
V.
CONCLUSION
We conclude that the district court correctly found the magistrate court had both subject
matter and personal jurisdiction over this case and L’Abbe. Also, the district court correctly
found that the magistrate properly denied L’Abbe’s request for a Seventh Amendment jury trial.
L’Abbe’s remaining claims are without merit. The district court’s intermediate appellate
decision upholding L’Abbe’s judgment of conviction for speeding is affirmed.
Judge LANSING and Judge MELANSON CONCUR.
9
| {
"pile_set_name": "FreeLaw"
} |
Buddy CASON, Ikki Contreras, et al., Plaintiffs-Appellees-Cross-Appellants,
David Tony Neisler, Gerald Wendell Spivey, et al., Plaintiff-Appellees,
v.
Jim SECKINGER, Thomas Jones, et al., Defendants-Appellants-Cross-Appellees.
No. 99-11125.
United States Court of Appeals,
Eleventh Circuit.
Oct. 24, 2000.
Appeals from the United States District Court for the Middle District of Georgia. (No. 84-00313-5-CV-1-
CWH, Claude W. Hicks, Jr., Judge.
Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.
CARNES, Circuit Judge:
This appeal stems from a lawsuit that was filed sixteen years ago on behalf of a class consisting of
all male and female inmates ("plaintiffs") presently or in the future housed by the Georgia Department of
Corrections at the Middle Georgia Correctional Complex. The lawsuit was brought against the Georgia
Department of Corrections and certain officials ("defendants"), and it sought injunctive relief to remedy
numerous alleged Constitutional violations. The parties differences were resolved by entry of a series of
consent decrees between May 10, 1990 and March 29, 1996.
On November 12, 1998, defendants filed a motion to vacate and terminate all remaining consent
decrees pursuant to the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626. In opposition to the
motion, plaintiffs requested an evidentiary hearing on the issue of whether there are current and ongoing
violations of class members' federal rights, and they also urged the court to grant a motion they had filed in
1995 seeking leave to amend their complaint to add related claims under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. The district court
granted the defendants' motion to terminate only insofar as it pertained to the enforcement of the consent
decrees within the present suit, but denied their motion to vacate the "substance" of the underlying decrees.1
*
Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of Pennsylvania, sitting by
designation.
1
All of the orders in this case were entered by a magistrate judge. Because the parties consented to
have the magistrate judge act as the district court pursuant to 28 U.S.C. § 636(c), we will refer to the
magistrate judge's actions as those of the district court.
The district court also denied the plaintiffs' request for an evidentiary hearing as well as their motion to amend
their complaint. For the reasons set forth below, we vacate that portion of the district court's order pertaining
to termination of the consent decrees and remand with instructions to hold an evidentiary hearing in
accordance with the requirements of the PLRA. We affirm that portion of the district court's order denying
plaintiffs leave to amend their complaint.
I. BACKGROUND
The underlying civil action seeking injunctive relief from allegedly unconstitutional prison conditions
that existed in the Middle Georgia Correctional Complex was originally filed in 1984.2 A class was certified
consisting of all male and female inmates presently or in the future housed in the Middle Georgia Correctional
Complex. The case was eventually resolved by the entry of a series of consent decrees designed to remedy
the alleged institutional deficiencies. Of primary importance to the issues on appeal are fourteen consent
decrees that were entered beginning in 1990 and ending in 1996. Of those fourteen orders, three contained
provisions for automatic termination, and for that reason are not at issue in the present appeal.3 The
remaining consent decrees did not contain any provision for automatic termination.4
2
The lawsuit claimed that prison conditions were unconstitutional because, it was alleged, there was:
(1) pervasive sexual abuse of female inmates by staff; (2) pervasive sexual harassment of female inmates
by staff; (3) an inadequate classification system; (4) use of excessive force, physical violence, and verbal
abuse; (5) the illegal use of stripping and restraints on mentally ill inmates; (6) violations of basic
privacy rights and illegal stripping; (7) enforcement of existing orders; (8) inadequate staffing; (9)
life-threatening structural and physical plant conditions; (10) deliberately indifferent medical, dental, and
mental health care; (11) deficient food and food services; (12) inadequate access to the courts; (13)
unlawful visitation, mail, and telephone practices; (14) inadequate fire safety; (15) inadequate
occupational health and safety; (16) insufficient vocational and educational programs; (17) lack of
exercise and recreation, and unjustified idleness; (18) lack of meaningful regulations on personal
property; (19) abusive protective custody procedures; (20) unlawful racial and religious discrimination;
(21) inadequate disciplinary and grievance procedures policies; (22) overcrowding; (23) the adverse
psychological effects of detention; and (24) inadequate mental health therapy and counseling.
3
The consent orders containing automatic termination provisions included the December 12, 1995
order dealing with mental health, the January 22, 1996 order regarding medical care, and the March 8,
1996 order regarding the physical plant and staffing.
4
The remaining consent decrees include orders pertaining to discipline and grievances (entered May
10, 1990); safety/sanitation, food, use of force, classification, visitation, mail and postage, and receipt of
funds (entered August 29, 1990); Jane Doe victims/witnesses of sexual abuse (entered March 11, 1992);
provision of counseling to Jane Doe victims (entered March 15, 1993); physical restraints, seclusion, and
stripping (entered February 1, 1994); investigation of sexual contact, sexual harassment, and sexual
abuse (entered November 22, 1994); permanent population cap at Metro State Prison and psychiatric
time to be provided at that prison (entered March 10, 1995); training of employees and female inmates
about sexual abuse, sexual contact, and sexual harassment (entered June 23, 1995); psychiatric hours at
Metro State prison (entered October 3, 1995); and degree requirements for mental health counselors
(entered March 29, 1996). There was also an order for permanent injunctive relief entered March 7,
In 1996, Congress enacted the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626. The
PLRA altered the landscape of prison reform litigation in two primary respects. First, it prescribed limits on
the scope of prospective relief that a court has the authority to enter, mandating that prospective relief will
not be entered "unless the court finds that such relief is narrowly drawn, extends no further than necessary
... and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. §
3626(a)(1).
Second, the PLRA limits a court's authority to continue to enforce previously entered prospective
relief in prison litigation reform cases. Section 3626(b)(1)(A) establishes specified time frames under which
prospective relief is terminable upon motion of a party. Section 3626(b)(2) sets forth an additional ground
for termination, providing that a defendant shall be entitled to immediate termination of any prospective relief
that was entered without the required findings that "the relief is narrowly drawn, extends no further than
necessary to correct the violation ... and is the least intrusive means necessary to correct the violation...." Id.
Both subsections (b)(1)(A) and (b)(2) are limited by § 3626(b)(3), which provides that prospective relief shall
not terminate if the court determines that the relief remains necessary to "correct a current and ongoing
violation of [federal rights], extends no further than necessary to correct the violation ... and that the
prospective relief is narrowly drawn and the least intrusive means to correct the violation." Id. § 3636(b)(3).
In 1998, the defendants moved pursuant to § 3626(b) of the PLRA for an order terminating and
vacating all consent decrees that did not already contain provisions for automatic termination. The district
court granted the motion in part, concluding that there was no "current and ongoing" constitutional violations
sufficient to justify the continuation of the decrees under § 3626(b)(3). In reaching that conclusion, the
district court denied plaintiffs' request for an evidentiary hearing. The court determined no evidentiary
hearing was required on the issue of whether there were current and ongoing violations because the plaintiffs
had not requested any additional injunctive relief in the two years preceding the defendants' motion, nor had
they alleged any non-compliance with the existing decrees during that two-year period. According to the
court, those two factors by themselves established that no current and ongoing violations existed, and for that
reason no evidentiary hearing was necessary.
1994, pertaining to sexual contact, sexual harassment, and sexual abuse.
Acting pursuant to 18 U.S.C. § 3626(b)(1)(A)(iii),5 the district court granted the defendants' motion
to terminate the consent decrees insofar as the motion called for the termination of the underlying lawsuit.
Nonetheless, expressing its wish not "to destroy what it considers to be positive steps taken by the Department
in ensuring that its charges are properly looked after in accordance with Constitutional requirements," the
court denied the defendants' motion insofar as it requested that the court vacate the substantive provisions of
the consent decrees. The court was motivated to leave the substantive provisions alone by its desire to allow
courts in future cases involving these same defendants to be able to consider the substance of the prior
consent decrees. Perhaps recognizing the problematic nature of what it was doing, the court attempted to
explain that, "[t]he purpose of this order is simply to end this proceeding which has been pending in various
forms since 1984, nearly fifteen years, keeping intact the substantive provisions of all orders and injunctions
which have not expired by their own terms." (emphasis in original). The court emphasized that it did not
intend to permit the continued enforcement of the consent decrees, and to that end vacated and terminated
"all provisions in the various orders/injunctions entered herein dealing with enforcement by way of contempt
or otherwise ...." (emphasis in original).
The district court also denied plaintiffs' motion to amend their complaint to add claims under the
ADA and the Rehabilitation Act. Counsel for plaintiffs originally filed the motion in 1995, more than ten
years after the lawsuit was initiated. The court delayed ruling on the motion until after the Supreme Court
ruled on the application of the ADA to state prison facilities. See generally Pennsylvania Dep't of
Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). The district court
subsequently denied the motion to amend on the grounds that adding a new sub-class to the litigation at such
a late stage would only serve to prolong the already protracted litigation. The court observed that plaintiffs
could present any ADA-related claims in a new lawsuit, and that requiring them to do so would in no way
5
Section (b)(1)(A) provides:
(1) Termination of prospective relief.—(A) In any civil action with respect to prison
conditions in which prospective relief is ordered, such relief shall be terminable upon the
motion of any party or intervener—
(i) 2 years after the date the court granted or approved the prospective relief;
(ii) 1 year after the date the court has entered an order denying termination of
prospective relief under this paragraph; or
(iii) in the case of an order issued on or before the date of enactment of the Prison
Litigation Reform Act, 2 years after such date of enactment.
adversely impact their ability to prosecute such a claim.
The defendants appealed the denial of their motion to terminate the consent decrees in their entirety,
and the plaintiffs cross-appealed the denial of their request for an evidentiary hearing and the denial of their
motion to amend.
II. DISCUSSION
The provision of the PLRA pursuant to which the district court determined the decrees to be
terminable mandates that, upon motion of a party, prospective relief that was ordered prior to the date of the
PLRA's enactment shall be terminable two years after the effective date of the enactment, unless certain
specific findings are made. See 18 U.S.C. § 3626(b)(1)(A)(iii) and (b)(3). Here, there is no dispute that the
relief embodied in the consent decrees was ordered prior to the effective date of the PLRA's enactment and
that the defendants' motion was filed more than two years after that date. Thus, the relief is terminable unless
the limiting provisions of 3626(b)(3) prohibit termination. Before we can determine whether the issues
involving the extent of the district court's termination of the consent decrees are presented, we must decide
if termination was prohibited under 3626(b)(3) ("Prospective relief shall not terminate if...."). We turn to that
issue now, and to the plaintiffs' contention that they were wrongly denied an evidentiary hearing on it.
A. DENIAL OF THE EVIDENTIARY HEARING
We review the district court's denial of a request for an evidentiary hearing for an abuse of discretion.
See Loyd v. Alabama Dep't of Corrections, 176 F.3d 1336, 1339 (11th Cir.1999).
1. The Requirement of an Evidentiary Hearing
Section 3626(b)(3) provides:
Prospective relief shall not terminate if the court makes written findings based on the record that
prospective relief remains necessary to correct a current and ongoing violation of the Federal right,
extends no further than necessary to correct the violation of the Federal right, and that the prospective
relief is narrowly drawn and the least intrusive means to correct the violation.
18 U.S.C. § 3626(b)(3).
The defendants argue that an evidentiary hearing is not required under § 3626(b)(3) where the
plaintiffs fail to allege any specific, continuing institution-wide violations of a federal right. Here, for more
than two years there had been no formal allegations that the defendants had violated any constitutional rights
of the plaintiffs. That alone, the district court concluded, ruled out any "current and ongoing" violations
within the meaning of the PLRA and made an evidentiary hearing unnecessary. The defendants, of course,
agree.
In support of this position, the defendants cite Berwanger v. Cottey, 178 F.3d 834 (7th Cir.1999).
In Berwanger, the district court had appointed a monitor to oversee compliance with the consent decrees.
See id. at 840. The Seventh Circuit suggested that if there were current and ongoing violations, the
court-appointed monitor likely would have been aware of it. Id. The court suggested further that if the
information in the monitor's possession, together with any documents submitted by the parties, was not
sufficient to create a disputed issue of fact as to the existence of a violation, then the parties may not be
entitled to introduce more evidence on the issue. Id. ("Only if there are disputed issues of material fact must
the court hold a new hearing and receive testimony." ).
There are two problems with defendants' reliance on Berwanger. First, it is not at all clear that the
factual and procedural circumstances in that case match those in this case. It is unclear that the plaintiffs in
Berwanger alleged that specific violations of federal rights existed at the time of the termination decision,
as the plaintiffs in this case did. In their response to the defendants' motion to vacate, these plaintiffs alleged
several specific violations of the federal rights of the class members.6 Also, the plaintiffs assert, without
contradiction by the defendants, that at a status conference held shortly before the termination decision they
offered the district court a series of class-member affidavits that, they contend, would have demonstrated the
existence of current and ongoing violations, but the district court refused to accept them.
Another problem with defendants' reliance upon the Seventh Circuit's Berwanger decision is this
Court's own decision in Loyd v. Alabama Dep't of Corrections, 176 F.3d 1336 (11th Cir.1999). In that
decision, we held that it was an abuse of discretion for the district court to refuse to grant an evidentiary
hearing on the issue of whether the consent decrees satisfied the requirements of § 3626(b)(3), including
whether there was a current and ongoing violation. See id. at 1342. In contrast to what the Seventh Circuit
did in Berwanger, in Loyd we did not require plaintiffs who are seeking an evidentiary hearing to first
demonstrate the existence of a material question of fact. Instead, we seemed to suggest that a hearing would
be required in all such cases, stating "[i]t would read all meaning out of [§ 3626(b)(3) ] to force the party
opposing termination to show that the consent decree meets the requirements of § 3626(b)(3) and then not
provide that party with the opportunity to present evidence on that point." Id.
6
The alleged violations included sexual harassment of female inmates by prison guards and visitors,
sexual assault of a female inmate by a prison guard, sexual assault by a fellow inmate, and institutional
reluctance to investigate these claims or to provide therapy to the victims, as required under the consent
decrees.
There was in Loyd, as there had been in Berwanger, a court-appointed monitor who had filed reports
(up until two months prior to the motion to vacate in Loyd), and those reports apparently did not indicate the
existence of any current and ongoing federal law violations. Id. Despite the existence of the monitor's written
reports, we held that an evidentiary hearing was required, stating, "[t]he party opposing termination must be
given the opportunity to challenge or supplement the findings of the monitor and to present evidence
concerning the scope of the challenged relief and whether there are current and ongoing violations of federal
rights in the prison." Id.
In the present case, the plaintiffs were not afforded an opportunity to prove that there are "current and
ongoing" violations of class members' federal rights. Therefore, Loyd compels us to hold that it was an abuse
of discretion for the district court to refuse to grant plaintiffs the evidentiary hearing they requested on that
issue. It necessarily follows that the district court's termination (or partial termination) of the consent decrees
was premature at best. Accordingly, we will vacate that portion of the district court's order terminating the
decrees and remand the case with instructions that an evidentiary hearing be conducted on the § 3626(b)(3)
issues.
In conducting the evidentiary hearing the district court will be called upon to interpret and apply the
"current and ongoing" violation component of § 3626(b)(3). Because there is substantial disagreement
between the parties about the meaning of that component, and because the district court appears to have
misapprehended the nature of the § 3626(b)(3) inquiries, we write further in order to provide the district court
and the parties with specific guidance on those subjects.
2. The Scope of the Required Evidentiary Hearing
If a party has properly moved for termination of prospective relief under either § 3626(b)(1)(A) or
§ 3626(b)(2), the court must determine whether such relief should be continued under § 3626(b)(3). That
subsection provides that prospective relief shall not terminate if the court makes written findings on the record
that: (1) the prospective relief remains necessary to correct a current and ongoing violation of a federal right,
(2) the relief extends no further than necessary to correct the violation, (3) the relief is narrowly drawn, and
(4) the relief is the least intrusive means to correct the violation. See 18 U.S.C. § 3626(b)(3).
a. The Meaning of "Current and Ongoing"
The plaintiffs contend that a "current and ongoing" violation of federal rights, as that term is used
in § 3626(b)(3), includes more than just a currently existing violation. They ask us to adopt a standard of
"current and ongoing" that is broad enough to include the persistence of practices that have led to violations
of federal law in the past, even though no such violations currently exist. They say that if the institutional
policies that led to violations in the past are still in existence and pose a danger that future violations will
occur, then the court should find that the "current and ongoing" violation standard is met.
We discussed the scope of the "current and ongoing" standard in Parrish v. Alabama Dept. of
Corrections, 156 F.3d 1128 (11th Cir.1998). There we took note of the issue about whether "current and
ongoing" means that a violation must exist "right now" or instead means a "substantial and very real danger
that a violation of rights will follow the termination of the injunction." Id. at 1129. However, it was not
necessary for us to decide the issue in Parrish because, under either standard, the plaintiff could not show
a "current and ongoing" violation in that case. Id. That is not the case here where we are remanding for an
evidentiary hearing in order to give the plaintiffs an opportunity to show a "current and ongoing" violation,
so we will now resolve the issue of what that entails.
As we observed in Parrish, the phrase "current and ongoing" was originally enacted as "current or
ongoing." Id. at n. 3. In 1997 Congress amended the phrase to substitute "and" for "or." See Department of
Justice Appropriations Act, Pub.L. No. 105-119, § 123(a)(2), 111 Stat. 2440, 2470 (1997). The legislative
history of the enactment, which we did not have occasion to discuss in Parrish, clearly shows that Congress
intended "current and ongoing" to mean a presently existing violation, not a potential, or even likely, future
violation. The conference report explaining the amendment makes this clear, stating that the change to
"current and ongoing" (emphasis added):
corrects the confusing use of the word "or" to describe the limited circumstances when a court may
continue prospective relief in prison conditions litigation to make clear that a constitutional violation
must be "current and ongoing". These dual requirements are necessary to ensure that court orders
do not remain in place on the basis of a claim that a current condition that does not violate a
prisoners' Federal rights nevertheless requires a court decree to address it, because the condition is
somehow traceable to a prior policy that did violate Federal rights, or that government officials are
"poised" to resume a prior violation of federal rights.
H.R. Conf. Rep. No. 105-405, at 133 (1997). Accordingly, we hold that a "current and ongoing" violation
is a violation that exists at the time the district court conducts the § 3626(b)(3) inquiry, and not a potential
future violation. On remand, the district court should hold an evidentiary hearing to allow both parties to
present evidence on whether there are any currently existing violations of class members' federal rights within
the meaning of § 3626(b)(3). In accordance with that provision, if the district court concludes that a "current
and ongoing" violation does exist, it must make written findings on the record about whether the prospective
relief aimed at that violation remains necessary to correct it. The court will also need to address the other
components of § 3626(b)(3).7
b. The Required Need-Narrowness-Intrusiveness Findings
If the district court determines that there are current and ongoing violations sufficient to support the
continuation of the prospective relief, the court must then determine whether the scope of the existing relief
comports with the other findings required by § 3626(b)(3). Even where there is a current and ongoing
violation, prospective relief must be terminated unless the district court makes written findings on the record
that the relief extends no further than necessary to correct the violation, that the relief is narrowly drawn, and
that the relief is the least intrusive means to correct the violation (hereinafter, the
"need-narrowness-intrusiveness" findings). See 18 U.S.C. § 3626(b)(3).
As to those factors, in this case the district court stated only that the "the court specifically finds,
based on the content of the orders and upon the philosophy of the undersigned which existed prior to the
enactment of the PLRA, that the relief set forth [in the consent decrees] extends no further than necessary to
correct the ... violations dealt with by the parties ... at the time the orders were consented to and/or entered."
(emphasis in original). This statement indicates that the district court misunderstood both the nature and
extent of the analysis required by § 3626(b)(3).
With regards to the nature of the § 3626(b)(3) inquiry, the district court's statement indicates that it
thought the question was whether the relief contained in the orders extended no further then necessary "to
correct the [alleged] violations dealt with by the parties and the court at the time the orders were consented
to and/or entered." (emphasis added). That is not the (b)(3) question. Instead, if there is a "current and
ongoing" violation, the question becomes whether the prospective relief meets the
need-narrowness-intrusiveness requirements at the time of the court's inquiry in response to the motion to
terminate. The court must make new findings about whether the relief currently complies with the
need-narrowness-intrusiveness requirements, given the nature of the current violations. It is not enough
under § 3626(b)(3) that the orders, when entered, were sufficiently narrow considering the violations that
existed at that time.
Regarding the extent of the analysis, the district court's summary conclusion that the consent decrees
7
Of course, if the court finds no current and ongoing violation, the prospective relief must be
terminated.
"extend[ed] no further then necessary to correct the ... violations" was seriously deficient. We read §
3626(b)(3) as requiring particularized findings, on a provision-by-provision basis, that each requirement
imposed by the consent decrees satisfies the need-narrowness-intrusiveness criteria, given the nature of the
current and ongoing violation. It is not enough to simply state in conclusory fashion that the requirements
of the consent decrees satisfy those criteria. Particularized findings, analysis, and explanations should be
made as to the application of each criteria to each requirement imposed by the consent decrees.
On remand, rather then summarily concluding that all of the consent decrees satisfy all of the
requirements of § 3626(b)(3), the district court should engage in a specific, provision-by-provision
examination of the consent decrees, measuring each requirement against the statutory criteria. The court must
determine, and enter findings about, whether each requirement extends no further than necessary to correct
a current and ongoing violation of a federal right, is narrowly drawn, and is the least intrusive means of
correcting that violation. Only if the court makes written findings on the record that the relief satisfies the
above need-narrowness-intrusive standards can the prospective relief be continued.8
B. THE DISTRICT COURT'S PURPORTED "TERMINATION" OF THE CONSENT DECREES
In its order, the district court stated that it was terminating the lawsuit, but leaving the substantive
provisions of the consent decrees intact. With respect to the termination of the lawsuit, the court stated that
it "contemplates and directs that all complaints regarding issues dealt with herein shall henceforth be
considered in new lawsuits if such become necessary.... To that end, all provisions in the various
orders/injunctions entered herein dealing with enforcement by way of contempt or otherwise, or requiring or
permitting enforcement action by class counsel within the framework of this case are VACATED and
TERMINATED." (emphasis in original). With respect to preserving the substantive provisions of the consent
decrees, the court stated, "[i]f orders or injunctions entered in [this case] have not been complied with, it will
be up to this court or any other court having jurisdiction over the issue at hand to determine whether new
operating procedures, etc. pass constitutional muster. Orders/injunctions herein previously entered may be
taken into consideration, if applicable, as may the fact that this court does not wish to destroy what it
considers to be positive steps taken by the [Defendants]...." Thus, while the court intended to terminate the
enforcement provisions of the consent decrees, it also intended that the decrees would continue to have some
8
Of course, we do not mean to suggest that the district court must conduct an evidentiary hearing
about or enter particularized findings concerning any facts or factors about which there is not dispute.
The parties are free to make any concessions or enter into any stipulations they deem appropriate.
effect although it is unclear exactly what effect.
We have considerable doubt that the district court's partial termination of the prospective relief went
far enough to comply with the PLRA.9 It appears as though the court was interpreting § 3626(b) as operating
to limit the jurisdictional authority of a court to enforce the decrees instead of requiring the actual termination
of the decrees. If so, we have previously rejected that very interpretation of the PLRA. See Dougan v.
Singletary, 129 F.3d 1424, 1426 n. 4 (11th Cir.1997). However, we need not address that issue any further
now because we are remanding this case for an evidentiary hearing and findings on the issue of whether there
are any "current and ongoing" violations and, if so, on the need-narrowness-intrusiveness factors. Only after
the district court holds the evidentiary hearing and enters findings will we know whether any of the decrees
are due to be "terminated," and only then will any issues about what termination entails be presented. Also
it may be that any issues involving the scope of termination are shaped and clarified by the district court's
findings. For these reasons, we leave any such issues for another day.
C. DENIAL OF PLAINTIFFS' MOTION TO AMEND
The plaintiffs cross-appeal the denial of their motion to amend the complaint to include certain ADA
and Rehabilitation Act claims and to certify a sub-class of individuals defined as disabled under the ADA and
handicapped under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The district court
denied the motion on the grounds that the addition of a new sub-class more than ten years after the case was
initially filed would needlessly prolong the already protracted litigation. The court also noted that the
plaintiffs could present any such claims in a new lawsuit if they wished to pursue them.
The plaintiffs argue that the district court abused its discretion in denying their motion to amend. The
plaintiffs stress that, although some fifteen years have elapsed since this lawsuit was initiated, they originally
sought leave to amend the complaint in 1995, more than four-and-one-half years ago. The district court
delayed ruling on the motion to amend until after the Supreme Court decided whether the ADA was
applicable to state prison systems.10 The plaintiffs argue that the district court's delay in ruling on the motion
9
At oral argument counsel for plaintiffs conceded that the district court's approach was not proper.
When that counsel was asked how he would have drafted a termination order in this case, he directed us
to four orders that had been entered by another district court in other prison litigation reform cases, and
told us that they were good examples of how it should be done. Three of those four orders said that the
prior orders were "hereby vacated, dissolved, and terminated," while the fourth one said that the prior
orders were "hereby vacated and terminated and the action is dismissed."
10
The Supreme Court ultimately ruled that the ADA did apply to state prisons in Pennsylvania Dep't.
of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).
was not their fault, and should not prejudice their efforts to bring the additional claims. They argue further
that the parties and the court have acted since 1992 as though the substantive issues that the ADA and
Rehabilitation Act raise were already part of the case, particularly with respect to mental health care and
conditions at geriatric and disabled inmate facilities.
Federal Rule of Civil Procedure 15 provides, in pertinent part, that "a party may amend the party's
pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given
when justice so requires." Fed.R.Civ.P. 15(a). While the plaintiffs stress that leave to amend "shall be freely
given," we stress that our review of the district court's denial of leave to amend is limited to deciding whether
there has been an abuse of discretion, which means we give that court considerably more leeway than if we
were reviewing its decision de novo. See In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994). The question
before this Court is not whether we would have granted leave to amend under the "freely given" standard of
Rule 15, but whether the district court abused its discretion by not granting it under that standard and in the
circumstances of this case. As we have observed before, when we review only for abuse of discretion the
district court has "a range of choice ... so long as that choice does not constitute a clear error of judgment."
Id. (citation and quotation omitted).
Even if we focus, as the plaintiffs argue that we should, on the date on which plaintiffs initially filed
their motion to amend rather then on the date when the district court ultimately ruled on it, we cannot say that
it the district court's denial of the motion constituted a clear error of judgment. The plaintiffs sought to amend
the complaint nearly eleven-and-one-half years after it was filed. Despite their protestations that the ADA
did not exist when they filed the suit, it had existed for nearly five years before they filed leave to amend, and
the Rehabilitation Act had been in existence since before they filed the lawsuit. Finally, as the district court
noted, if plaintiffs wish to pursue any claims they might have under the ADA and the Rehabilitation Act, they
will not be unduly burdened by having to file a new lawsuit to do so.
III. CONCLUSION
We AFFIRM that portion of the district court's order denying plaintiffs leave to amend their
complaint.
We VACATE that portion of the district court's order denying an evidentiary hearing and partially
terminating the consent decrees, and we REMAND the case for further proceedings consistent with this
opinion.
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151 F.Supp.2d 922 (2001)
Jerry MILLER, Plaintiff,
v.
Bob TAFT, Governor of the State of Ohio, et al., Defendants.
No. 3:01 CV 7056.
United States District Court, N.D. Ohio, Western Division.
April 18, 2001.
*923 Jerry Miller, Lima, OH, plaintiff pro se.
OPINION AND ORDER
CARR, District Judge.
I.
On February 2, 2001, plaintiff pro se Jerry Miller filed this civil rights action against Ohio Governor Bob Taft, Ohio Attorney General Betty Montgomery, all Prosecuting Attorneys and Law Enforcement Officials of Ohio, Judge Richard K. Warren and "all Judges of the State of Ohio (Allen County Court of Common Pleas)". In his complaint, Mr. Miller asserts that the defendants violated his civil rights under the First, Fifth, Ninth and Fourteenth Amendments of the Constitution through the enforcement of Ohio's Sexual Predator Registration and Notification Laws, Ohio Revised Code § 2950, et seq. ("the Act"). The plaintiff is seeking declaratory and "prospective" injunctive relief. For the reasons set forth below, the complaint is dismissed pursuant to 28 U.S.C. § 1915A.
II.
On July 8, 1997, Judge Michael Rumer of the Allen County Court of Common Pleas issued an order sua sponte wherein he declined the Ohio Department of Rehabilitation and Correction's (ODRC) recommendation to adjudicate Miller a sexual predator pursuant to Ohio Revised Code (O.R.C.) § 2950.09. Relying on the Third Circuit Court of Appeals' opinion in State v. Cook, No. 1-97-21, 1997 WL 452014 (Ohio App. 3 Dist. Aug.7, 1997)[1], Judge Rumer stated:
The Court finds that as applied to his [sic] defendant, RC 2550.09(C) is the retroactive application of a legislative *924 enactment and thus violative of Section 28, Article II of the Ohio Constitution.
State v. Miller, No. 93-C-55 (Allen County Ct. July 8, 1997).
In an order filed, February 10, 1999, defendant Judge Jeffrey L. Reed vacated the court's July 8, 1997 judgment following the Ohio Supreme Court's determination in State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998) that § 2950.09(B)(1) does not violate the Retroactivity Clause or the Ex Post Facto Clause of the Constitution. The court ordered a hearing on April 9, 1999 to determine whether Mr. Miller would be classified as a sexual predator.
Mr. Miller appealed to the Allen County Court of Appeals for the Third Appellate District. He argued, inter alia, that the trial court did not have subject matter jurisdiction to proceed with the sexual predator adjudication hearing because the ODRC had not complied with the mandates of O.R.C. § 2950.09(C)(1) through § 2950.09(B)(2)(a)-(j), Judge Reed lacked jurisdiction to vacate Judge Rumer's order in his discretion, and that, because the prosecutor did not seek an appeal of right in accordance with O.R.C. § 2950.09(C)(2), any further attempt to label him a sexual predator was "res judicata and collaterally estopped". (Compl. at 11.) The appellate court dismissed his appeal and he appealed to the Ohio Supreme Court, which affirmed the decision of the appellate court. State ex rel. Miller v. Reed, Judge, 87 Ohio St.3d 159, 718 N.E.2d 428, (1999).
Prior to his hearing, Mr. Miller moved to dismiss the Sexual Predator Adjudication Hearing on the grounds that the Ohio Sexual Predator and Registration & Notification Act violated the First Amendment Right to Peaceably Assemble, the Ninth Amendment Enumeration of Rights and the Fifth and Fourteenth Amendment Due Process and Equal Protection Clauses. He argued further that the ODRC did not comply with § 2950.09(C)(1) as set forth in State ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 718 N.E.2d 1285 (1999). The motion was denied, but defendant Judge Warren, to whom the case was reassigned, continued the hearing until further order in consideration of the fact that Mr. Miller would not be eligible for parole until January 2008. The plaintiff argues Judge Warren violated the Due Process and Equal Protection Clauses when he failed to determine the matter res judicata because of the prosecutor's failure to appeal Judge Rumer's original order as set forth in State v. Dick, 137 Ohio App.3d 260, 738 N.E.2d 456 (2000).
In his complaint before this court, Mr. Miller claims that Governor Taft's failure to veto the Act was done with an unlawful and unconstitutional motive. The plaintiff alleges that Attorney General Montgomery's failure to correct the Act as a legislative error shows an unlawful and unconstitutional motive and blatant disregard for his First, Fifth, Ninth and Fourteenth Amendment rights. In his claims against Judge Warren, Mr. Miller argues he lacked subject-matter jurisdiction to continue the adjudication hearing and violated his rights under the Due Process and Equal Protections Clauses. The basis for this attack seems to be Mr. Miller's suggestion that the Ohio Department of Rehabilitation and Correction (ODRC) did not recommend his classification as a sexual predator in compliance with O.R.C. § 2950.09(C)[2]. He asserts that in State ex *925 rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 718 N.E.2d 1285(1999) the Ohio Supreme Court determined that the procedural provisions of O.R.C. § 2950.09(b)(2)(a)-(j) are "jurisdictional and mandatory" and that because Judge Reed never had "jurisdiction to vacate Judge Rumer's order, any further attempts by Judge Warren to adjudicate him a sexual predator were `res judicata' and collaterally estopped'" (Compl. at 11.)
Mr. Miller challenges the Act as unconstitutional because it "does not serve a legitimate governmental purpose because it is contrary to what the Supreme Court ruled as the appropriate remedy as set forth in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), that `civil commitment & incapacition' best serve governmental interest." (Compl. at 6.) He claims that by labeling persons convicted of sexually oriented offenses and "requiring them to register this information with local law enforcement who then inform neighbors that an `animal' lives in their community the Act creates an atmosphere of hysteria and violence which violates his rights and the rights of society." The plaintiff claims further that this law "divests him of his clearly established First Amendment right to `Peaceably Assemble & to Associate,' because Plaintiff is now labled [sic] as a `dangerous animal' and has, and will be hereinafter, `shunned by society, and held as a total social outcast,' this will make Plaintiff the victim of vigilante justice, which poses a legitimate threat to the safety of Plaintiff's person and property (chattels)." (Compl. at 5-6.)
III.
A district court is expressly authorized to dismiss any civil action filed by a prisoner seeking relief from a governmental entity, as soon as possible after docketing, if the court concludes that the complaint fails to state a claim upon which relief may be granted, or if the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb.1, 2000); see Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (citing numerous Supreme Court cases for the proposition that attenuated or unsubstantial claims divest the district court of jurisdiction); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that federal question jurisdiction is divested by unsubstantial claims).
As a threshold matter, Mr. Miller does not have standing to challenge the constitutionality of O.R.C. § 2950.11 as he did not allege harm to a concrete, personal interest. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Section 2950.11 applies only to those who have been adjudicated to be sexual predators or habitual *926 sex offenders. Mr. Miller does not allege that he was adjudicated to be either a sexual predator or habitual sex offender. Instead, he alleges he was convicted of a sexually oriented offense for conduct occurring before January 1, 1997, the effective date of the law, and that he is facing a sexual predator adjudication hearing at an undetermined time in the future. Thus, as to § 2950.11, Mr. Miller is not asserting a violation of constitutional rights personal to himself, but is improperly asserting a violation of constitutional rights personal to unnamed third parties. See Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 577 (6th Cir.1991).
Even if Mr. Miller could overcome his lack of standing, the injuries to which he claims the Act would expose him are not related to First Amendment protections. In spite of his attempt to create a subcategory of protection under the First Amendment right to freely associate, the case law Mr. Miller cites does not support his theory. For example, the plaintiff's reference to City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) is misplaced. In Morales, the Supreme Court addressed the question of whether the Illinois Supreme Court properly held that Chicago's Gang Congregation Ordinance violated the Due Process Clause of the Fourteenth Amendment. In affirming the Illinois Supreme Court, the Morales court recognized that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this `right to remove from one place to another according to inclination' as `an attribute of personal liberty' protected by the Constitution." Id. at 1857 (citations omitted) It seems that Mr. Miller's reliance on Morales is an attempt to link the Fourteenth Amendment right to move freely in society without the threat of a Due Process infringement with the First Amendment right to freely assemble. There is, however, no right to move and assemble freely in society without risk of disdain or contempt from members of one's community.
Further, nothing in the Act allows the State to remove the plaintiff from a public place, and certainly not without due process of the law. In City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), the Supreme Court recognized two different sorts of "freedom of association" that are protected by the Constitution:
In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.... In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment speech, assembly, petition for the redress of grievances, and the exercise of religion.
Id. at 1594 (citation omitted). In his complaint before this court, Mr. Miller has not set forth allegations reasonably suggesting that either of these sorts of protected freedom of association is infringed by enforcement of the Act. While the plaintiff may fear that members of society would shun him if he were a registered sexual predator, any damage to his reputation as a result of the Act is not a constitutionally protected liberty or property interest. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
The Supreme Court of Ohio addressed the substance of Mr. Miller's complaint in *927 its recent State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000) decision. In Williams the court examined the tangential effect of notification had on a sexual predator's attempt to integrate into his community. The court stated:
R.C Chapter 2950 does not impair the right to a favorable reputation. A favorable reputation is not a protected liberty interest.... As we stated in Cook, " `an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all the attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right. ***' Further, `the harsh consequences [of] classification and community notification *** come not as a direct result of the sexual offender law, but instead as a direct societal consequence of [the offender's] past actions.'" (Citations omitted.) Cook, 83 Ohio St.3d at 413, 700 N.E.2d at 579. Accordingly, we hold that R.C. Chapter 2950 does not violate the rights enumerated in Section 1, Article I of the Ohio Constitution.
Williams, 88 Ohio St.3d at 527, 728 N.E.2d at 357.
IV.
Under O.R.C. § 2950.09(C), the sexual predator classification hearing for offenders convicted of a sexually oriented offense, sentenced prior to January 1, 1997, and still serving a term of imprisonment in a state correctional institution, may occur only after the ODRC recommends that the offender be adjudicated a sexual predator. See O.R.C. § 2950.09(C)(1) & (2). It is apparent from Mr. Miller's complaint and attachments that he was sentenced before January 1, 1997 and is still serving a term of imprisonment for that crime. Therefore, the statute requires that a sexual predator classification hearing cannot occur until the ODRC recommends an offender's adjudication as a sexual predator.
A close examination of the facts alleged reveals that the ODRC did recommend Mr. Miller's classification as a sexual predator. In the order vacating Judge Rumer's order, Judge Reed clearly stated: "The Department of Rehabilitation and Correction has recommended to the Court that defendant be classified as a Sexual Predator. The Court is not bound by the recommendation of the Department of Rehabilitation and Corrections. RC. 2950.09(C)(2)." State v. Miller, No. CR93-02-55 (Allen County Ct. Feb. 10, 1999). In his subsequent order postponing Mr. Miller's hearing until September 2007, Judge Reed noted "[f]rom now until approximately September of 2007, the institution can monitor the defendant's behavior and submit its recommendation pursuant to O.R.C. 2950.09(C)(1) prior to any possible release and/or parole." State v. Miller, No. CR93-02-55 (Allen County Ct. Jan. 14, 2000). Nothing in the record before this court suggests that the court attempted or expects to conduct a sexual predator hearing without a recommendation from the ODRC.
Mr. Miller's reliance on the Ohio Supreme Court' opinion in State ex rel., Bruggeman v. Ingraham, 87 Ohio St.3d 230, 718 N.E.2d 1285(1999) to attack the trial court's jurisdiction over his adjudication hearing ignores the court's holding. In Bruggeman, the appellant argued that the trial court lacked subject matter jurisdiction over his classification hearing as a sexual predator because the judge never received a recommendation from the ODRC before it scheduled the hearing. The Ohio Supreme Court held that: "Judge Ingraham can determine at the scheduled hearing whether the statutory prerequisite of an ODRC recommendation *928 has been met, and it is premature to presume that he will proceed unlawfully. Therefore, Judge Ingraham does not patently and unambiguously lack jurisdiction to proceed, and Bruggeman has an adequate remedy by appeal to contest any subsequent adverse judgment." Bruggeman, 87 Ohio St.3d at 232, 718 N.E.2d at 1288 (emphasis added). Contrary to Mr. Miller assertion, the Bruggeman court did not per se decide that a judge lacks subject matter jurisdiction over a sexual predator hearing before the ODRC submits its recommendation to the court. To the extent that Mr. Miller seeks to enjoin the court from holding a classification hearing based on any defective recommendation from the ODRC, the claim lacks merit.
With regard to his claim that the prosecutor's failure to appeal Judge Reed's order dismissing the hearing based on State v. Cook, is a res judicata bar to any future hearing, the Ohio Supreme Court addressed that question when it affirmed the dismissal of his writ of prohibition. The court stated: "Notwithstanding Miller's claims to the contrary, `res judicata is not a basis for prohibition because it does not divest a trial court of jurisdiction to decide its applicability and it can be raised adequately by post judgment appeal.' State ex rel. Soukup v. Celebrezze (1998), 83 Ohio St.3d 549, 550, 700 N.E.2d 1278, 1280, citing State ex rel. Smith v. Smith (1996), 75 Ohio St.3d 418, 420, 662 N.E.2d 366, 369, and State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1995), 74 Ohio St.3d 19, 21, 655 N.E.2d 1303, 1305-1306." Miller, 87 Ohio St.3d at 160, 718 N.E.2d 428, 429.
Mr. Miller has failed to state a due process violation under the Fifth or Fourteenth Amendment. It is axiomatic that "[t]he Fourteenth Amendment prohibits state actors from depriving an individual of life, liberty, or property without due process of law." Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140-41 (6th Cir.1997). The threshold inquiry, therefore, in any alleged due process violation is whether the plaintiff has lost a protected property or liberty interest. In an analogous case involving a challenge to the constitutionality of Tennessee's sexual predator statute, the Sixth Circuit recently held that there was no liberty interest in being free from having to register as a sex offender or from public disclosure of registry information. Cutshall v. Sundquist, 193 F.3d 466, 478 (6th Cir.1999). Mr. Miller has not indicated to this court what liberty interest he believes is at stake beyond his failed attempt to challenge the Act on First and Ninth Amendment grounds.
Additionally, the plaintiffs numerous references to the Hendricks decision are unavailing. The case is quite distinguishable as it involved an individual's due process rights during an involuntary commitment proceeding as an adjudged sexual offender. The Supreme Court's holding rested on the constitutional principle that "the state cannot hold and physically punish an individual except in accordance with due process of law." Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). However, Mr. Miller has not argued and the Act does not set forth any form of physical restraint.[3]See e.g. Cutshall, 193 F.3d at 478 (where Tennessee Act involved no physical restraint, it did not implicate plaintiffs liberty interest in being free from punishment without *929 due process of law). Therefore, without the implication of a liberty interest or punishment, the plaintiff has not presented a colorable due process claim. Finally, plaintiff provides no indication of how the Act might violate equal protection.
Accordingly, this action is dismissed under section 1915A. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.[4]
IT IS SO ORDERED.
NOTES
[1] The Third Circuit Court of Appeals held, in part, that the retroactive application of the Act violated the state constitution. This decision was later reversed by the Ohio Supreme Court in State v. Cook, 83 Ohio St. St.3d 404, 700 N.E.2d 570 (1998)
[2] The statute provides, in relevant part:
If a person was convicted of or pleaded guilty to a sexually oriented offense prior to January 1, 1997, if the person was not sentenced for the offense on or after January 1, 1997, and if, on or after January 1, 1997, the offender is serving a term of imprisonment in a state correctional institution, prior to the offender's release from the term of imprisonment, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. In making a determination under this division as to whether to recommend that the offender be adjudicated as being a sexual predator, the department shall consider all relevant factors, including, but not limited to, all of the factors specified in division (B)(2) of this section. If the department determines that it will recommend that the offender be adjudicated as being a sexual predator, it immediately shall send the recommendation to the court that sentenced the offender and shall enter its determination and recommendation in the offender's institutional record, and the court shall proceed in accordance with division (C)(2) of this section.
OHIO REV.CODE § 2950.09(C)(1).
[3] It is Mr. Miller's expressed desire that Ohio redraft the Act to comport with his perception that the Supreme Court has held that `involuntary civil commitment' is the only means through which sexually violent predators can be afforded due process. See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
[4] 28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good faith.
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702 F.2d 111
ILLINOIS CENTRAL GULF RAILROAD COMPANY, Petitioner,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents.
No. 82-1046.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 20, 1982.Decided March 14, 1983.
Howard D. Koontz, Chicago, Ill., for petitioner.
Timm L. Abendorth, I.C.C., J. Raymond Clark, Washington, D.C., for respondents.
Before WOOD, Circuit Judge, SWYGERT, Senior Circuit Judge, and CAMPBELL, Senior District Judge.*
SWYGERT, Senior Circuit Judge.
1
Illinois Central Gulf Railroad Company petitions for review of a decision of the Interstate Commerce Commission in which the ICC affirmed an order of the Railroad Commission of Kentucky requiring the Railroad to refund certain demurrage charges. These charges had originally been paid to the Railroad by intervening respondent Union Carbide Corporation. This petition apparently involves a matter of first impression under sections of the Staggers Rail Act of 1980, Pub.L. No. 96-448, 94 Stat. 1895. For the reasons set forth below, the order of the ICC is reversed and the case remanded with directions to set aside the order of the Kentucky Commission.
2
* The facts are not disputed. In December 1978 and January 1979 Union Carbide shipped 143 cars of coal from Ravenna, Kentucky, to its plant at Kevil, Kentucky, serviced by the Railroad. Because of extreme cold weather, the coal arrived at the plant frozen in the rail cars. Union Carbide had difficulty unloading the coal, and kept the cars in excess of the "free time" specified by its "average agreement" with the Railroad.1 The Railroad assessed demurrage charges pursuant to the applicable tariff. Union Carbide paid the charges.
3
On December 18, 1980 Union Carbide filed a complaint with the Kentucky Commission against the Railroad seeking a refund of the penalty portion of the demurrage charges.2 Union Carbide contended that the penalty charges were unreasonable, given the extreme weather and its diligence in unloading the coal. The Kentucky Commission agreed, and in its decision of September 9, 1981 ordered the Railroad to return $158,690.80 in demurrage charges to Union Carbide.3 The Kentucky Commission noted that the "extraordinary combination of unusually low temperatures and unusually high precipitation" could not have been foreseen, and ruled that in this case the average agreement was "unenforceable as contrary to the public interest and public policy."4
4
The Railroad subsequently filed its petition for review with the ICC,5 arguing that the decision of the Kentucky Commission not to enforce the average agreement was in violation of 49 U.S.C. Sec. 11501, as amended by section 214 of the Staggers Act, which in relevant part requires that a state authority exercise jurisdiction "exclusively in accordance with the provisions of this subtitle." The ICC affirmed the Kentucky Commission.6 Although noting that "the I.C.C. generally enforces average agreements," and that "the penalty portion of demurrage could arguably indirectly affect carrier revenues to the extent that it encourages efficient car utilization by shippers," the ICC in this case found that the "Kentucky Commission's decision is within the limits of the discretion remaining to the states." This petition for review by this court followed.
II
5
As a preface to our consideration of section 214 of the Staggers Act, we note that in this case the ICC assumes the curious position of urging affirmance of a decision that an average demurrage agreement should not be upheld. As the Railroad points out, in the past the ICC has been adamant in its enforcement of average agreements notwithstanding a shipper's claim of inclement weather and due diligence in unloading cars.7 Most recently, in Cleveland Electric Illuminating Co. v. ICC, 685 F.2d 170 (6th Cir.1982), the ICC successfully persuaded the Sixth Circuit that the Commission's long-standing policy was to enforce average agreements. In that case, as here, the shipper sought relief from demurrage charges assessed pursuant to an average agreement. The shipper argued that because the coal arrived frozen in the rail cars, and because all means of unloading the coal had been utilized, the demurrage charges assessed were unreasonable. In upholding the ICC's decision not to excuse demurrage charges, the court recognized that
6
[r]ecent cases addressing the issue presented in this appeal have been uniform in their adherence to the policy that penalty demurrage should not be excused where an average agreement is in effect. We join the Third and Fourth Circuits in holding that the Commission has consistently applied this policy.
Id., 685 F.2d at 174.8
7
Given the consistent policy of the ICC to enforce average agreements, the issue then becomes whether, as the Railroad contends, the decision of the ICC to deviate from that policy is "arbitrary or capricious," or "an abuse of discretion," or "otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1976). We are aware of the deference due an agency's construction of a statute committed to its administration, see, e.g., Red Lion Broadcasting v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), and that more than mere deference is appropriate where a court examines a regulation promulgated by an agency pursuant to congressionally-delegated authority. Batterton v. Francis, 432 U.S. 416, 424-26 & n. 9, 97 S.Ct. 2399, 2404-06 & n. 9, 53 L.Ed.2d 448 (1977). Here, however, no regulation of the ICC is under consideration, and, as conceded at oral argument, the ICC has not changed its position in regard to the enforcement of average agreements where it acts in the first instance (as opposed to its quasi-appellate function under section 11501). Our task then is one of statutory interpretation, "an area in which courts are the final authority." Western Coal Traffic League v. United States, 694 F.2d 378, 383-84 (5th Cir.1982); Federal Election Commission v. Democratic Senatorial Campaign Commission, 454 U.S. 27, 31-32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) ("[courts] must reject administrative constructions of the statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement").
III
8
Section 214(b)(1) of the Staggers Act (currently codified at 49 U.S.C. Sec. 11501(b)(1)) provides in relevant part:A state authority may only exercise jurisdiction over intrastate transportation provided by a rail carrier ... if such State authority exercises such jurisdiction exclusively in accordance with the provisions of this subtitle.
9
In sections 214(b)(1) and 214(1), 49 U.S.C. Secs. 11501, et seq., the Staggers Act established a federal certification procedure for state agencies wishing to exercise jurisdiction "over intrastate rates, classifications, rules, and practices." 49 U.S.C. Sec. 11501(b)(2). A state may be certified under 49 U.S.C. Sec. 11501(b)(3)(A) if the ICC determines that the state's "standards and procedures are in accordance with the standards and procedures applicable to regulation of rail carriers by the Commission under this title." The Conference Report accompanying section 214 indicates that "[t]he conferees' intent is to ensure that the price and service flexibility and revenue adequacy goals of the Act are not undermined by state regulation of rates, practices, etc., which are not in accordance with these goals." Conf.Rep. No. 1430, 96th Cong., 2d Sess. 106, reprinted in 4 U.S.Code Cong. & Ad.News 3978, 4110, 4138 (1980).
10
The crux of the dispute we must resolve is whether the policy of the ICC to enforce average agreements can be considered a "rule" or "practice" under the Act, thereby requiring conformity by a state railroad commission exercising its authority under the Act. The ICC argues that because the Interstate Commerce Act does not specifically require the enforcement of average agreements, the mandate of section 214(b)(1) that a state exercise jurisdiction "exclusively in accordance with the provisions of this subtitle" is inapplicable. Thus, the ICC contends, whether demurrage agreements are upheld rest within the discretion of a particular state agency. Presumably the state agency could consider elements of local policy, weather, and foreseeability in reaching its determination. Further, the ICC submits that if certain rulings can be considered binding upon state agencies, then only those matters necessary to effectuate the purposes of the Staggers Act are involved, and the enforcement of average agreements is not one such matter. The decision of the ICC here under review is not helpful. As noted above, the opinion does observe that "the I.C.C. generally enforces average agreements," and that "the penalty portion of demurrage could arguably indirectly affect carrier revenues to the extent that it encourages efficient car utilization by shippers." Yet these concerns were insufficient to overturn the Kentucky Commission which, it was held, acted "within the limits of the discretion remaining to the states." We do not agree.
11
We find that a discrete reading of the statute requires that consistent rulings of the ICC must necessarily be incorporated and adhered to by state commissions exercising jurisdiction pursuant to the Staggers Act. The Interstate Commerce Act expressly requires that rail carriers
12
compute demurrage charges, and establish rules related to those charges, in a way that fulfills the national needs--related to--
13
(1) freight car use and distribution; and
14
(2) maintenance of an adequate supply of freight cars to be available for transportation of property.
15
49 U.S.C. Sec. 10750 (emphasis added). Moreover, in regard to demurrage charges, we have held that "[t]he appropriate charge and the period of the free time are set by tariff and have nationwide application." Central Illinois Pub. Serv. Co. v. Interstate Commerce Commission, 659 F.2d 820, 821 (7th Cir.1981). It would be patently inconsistent to hold, as the ICC urges, that although the Interstate Commerce Act requires demurrage charges to be computed and the ICC enforces average agreements, the Staggers Act empowers state agencies to suspend these agreements. Such an interpretation finds no support in the statute or legislative history, and, in fact, is contrary to the command of section 11501(b)(3)(A) that a state's procedures and standards be "in accordance with" those of the ICC. Indeed, the conference report reflects the concern that service flexibility not be "undermined by state regulation of rates, practices, etc...." See Conf.Rep. No. 1430, supra at 9 (emphasis added), U.S.Code Cong. & Admin.News 1978, p. 4138. Thus, whether the ICC's insistence in honoring average agreements is considered a "standard," "procedure," or "practice," it should have been applied by the Kentucky Commission.9 The decision of the ICC is vacated and the case is remanded to set aside the decision of the Kentucky Commission.
*
The Honorable William J. Campbell, United States Senior District Judge for the Northern District of Illinois, is sitting by designation
1
Railroads assess demurrage charges when shippers hold railway cars for loading or unloading longer than a specific period, called "free time." The appropriate charge and the period of the free time are set by tariff and have nationwide application. The tariff offers two alternative methods of computing demurrage. Under "straight demurrage," the charges are computed separately on each car delivered to the shipper, and the shipper is entitled to additional periods of free time in specific situations such as bad weather, frozen lading, strikes or bunching of cars. The alternate method of computing demurrage charges is the "average agreement" under which the early release of cars by the shipper provides it with credits which can be used to offset debits on other cars held beyond the free time. However, in return for that benefit, the shipper loses the right to receive extra free time for bunching, bad weather, or strikes
Central Illinois Public Service Co. v. ICC, 659 F.2d 820, 821 (7th Cir.1981).
2
"The compensation portion of the demurrage charge is that amount which adequately compensates the carrier for its losses and expenses resulting from the shipper's detention of the cars. The portion of the demurrage charge in excess of that amount is the penalty portion." Central Illinois Public Service Co. v. ICC, 659 F.2d at 822 n. 4
3
On October 14, 1981 the Kentucky Commission denied the Railroad's petition for reconsideration and ordered the Railroad to pay interest of eight percent on the demurrage charges returned to Union Carbide
4
Order of the Railroad Commission of Kentucky, Union Carbide Corp., Nuclear Division v. Illinois Central Gulf Railroad, Docket No. 972, Sept. 9, 1981
5
49 U.S.C. Sec. 11501 provides:
(c) Any rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title may petition the Commission to review the decision of any State authority, in any administrative proceeding in which the lawfulness of an intrastate rate, classification, rule, or practice is determined on the grounds that the standards and procedures applied by the State were not in accordance with the provisions of this subtitle. The Commission shall take final action on any such petition within 30 days after the date it is received. If the Commission determines that the standards and procedures were not in accordance with the provisions of this subtitle, its order shall determine and authorize the carrier to establish the appropriate rate, classification, rule, or practice.
6
Illinois Central Gulf Railroad Co., Petition to Review Order of Kentucky Railroad Commission, I.C.C., Docket No. 38727, Dec. 10, 1981
7
See Marshall-Putnam Oil Co. v. Chicago, R.I. & P.R. Co., 316 ICC 581, 583 (1962) (weather interference); Interstate Power Co. v. Chicago, Milwaukee, St. Paul & Pacific RR, ICC Decision No. 36743 (decided Nov. 21, 1978) (weather interference); Indiana University Trustees-Petition Seeking Reparation of Demurrage Charges Caused by Severe Winter Weather, ICC Decision No. 37001 (decided March 14, 1979) (frozen lading); International Minerals & Chemical Corp. v. Chicago & North Western Transportation Co., ICC Decision No. 37131 (decided Nov. 20, 1979) (frozen lading); Cleveland Electric Illuminating Co. v. Consolidated Rail Corp., ICC Decision No. 37342 (decided Aug. 22, 1980) (frozen lading); Central Illinois Public Service Co. v. Illinois Central Gulf RR, ICC Decision No. 37358 (decided Aug. 22, 1980) (frozen lading); Carborundum Co. v. Louisville & Nashville RR, ICC Decision No. 37330 F (decided Sept. 8, 1980) (severe weather conditions)
8
See Empire-Detroit Steel Div. v. Interstate Commerce Commission, 659 F.2d 396, 398 (3d Cir.1981) ("In contrast to straight demurrage, the average agreement, as interpreted by the Commission, bars any demurrage relief for bunching or weather condition."); Monongahela Power Co. v. Interstate Commerce Commission, 640 F.2d 504 (4th Cir.1981)
9
Given our holding on this issue, we consider it unnecessary to address an additional argument raised by the Railroad, whether the existence of a car service order in effect during a period when some of the demurrage charges accrued divested the Kentucky Commission of jurisdiction
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389 F.2d 482
Joseph Robert DUGDALE, Appellant,v.UNITED STATES of America, Appellee.
No. 21789.
United States Court of Appeals Ninth Circuit.
Feb. 15, 1968.
1
J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., for appellant.
2
Roger A. Browning (argued), Asst. U.S. Atty., William Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division, Los Angeles, Cal., for appellee.
3
Before BARNES and MERRILL, Circuit Judges, and BELLONI, District judge.
BELLONI, District Judge:
4
Appellant was convicted of refusing to submit to induction into the armed forces, in violation of 50 U.S.C. App. 462. The district court's jurisdiction was founded on 18 U.S.C. 3231, and our review is sought pursuant to 28 U.S.C. 1291, 1294.
5
The record shows that the appellant, Joseph Robert Dugdale, has been registered with the local board of the Selective Service System (Board) since 1961. He completed two classification questionnaires without claiming exemption as a conscientious objector. On two occasions the Board classified him 1-A (available for military service) and notified him of his classification. No appeal was taken. On February 10, 1966, Dugdale was ordered to report for induction on February 23; however, the date of the induction was postponed. Dugdale was subsequently ordered to report for induction on October 18, 1966.
6
On October 3, 1966, four days after the induction notice was sent, the Board received from appellant a completed Selective Service Form 150 (a special form for conscientious objectors), claiming exemption from both combatant and noncombatant military service. On October 11, 1966, the local Board noted appellant's file: 'Reviewed, no change, 3-0' and two days later informed him of its decision not to reopen his classification. Dugdale reported on October 18, 1966, but refused to take the ceremonial step forward signifying induction. He was indicted, found guilty, and sentenced to the custody of the Attorney General for a period of three years. It is from this conviction the appeal is taken.
7
Pursuant to the autority conferred by 50 U.S.C. App. 460(b)(1),1 the President has promulgated a regulation dealing with requests to reopen the classification of registrants who have been sent their induction notices:
8
'The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when a registrant was classified which, if true, would justify a change in the registrant's classification; * * * provided the classification * * * of a registrant shall not be reopened after the local board has mailed to such registrant an order to report for induction * * * unless the local board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' 32 C.F.R. 1625.2.
9
This regulation clearly limits the instances in which the denial of conscientious objector claims may be appealed when such a claim is made after issuance of an induction notice.
10
Dugdale contends that the Board should have reopened and made a finding as to the date appellant's belief matured. The argument relies upon the rationale of United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966), which holds that if a registrant's conscientious objector views mature after notice of induction is sent but before induction, this is such a 'change of status' resulting from 'circumstances over which (he has) no control' which would qualify him for exemption.
11
We do not necessarily accept the rationale of the Gearey case. See Boyd v. United States, 269 F.2d 607 (9th Cir. 1959), and Parrott v. United States, 370 F.2d 388 (9th Cir. 1966). But even if we did we could not reverse Dugdale's conviction here. It was incumbent upon Dugdale to submit statements and information which, if true, would be a basis for the change in classification. He was required to show a 'change of status' occurring after receipt of the induction notice.2 He did not do so.
12
On his special form for conscientious objectors, SSS Form 150, he stated that his views had been acquired through his home life, his contacts with acquaintances and friends, and his reading of literature. These views were demonstrated by comments to friends condemning violence and killing, and his request for classification as a conscientious objector. None of his reasons are consistent with any claim that his views matured or changed after receipt of the induction notice. In his transmittal letter with the form,3 he explained his reasons for late filing to be not any change of status, but rather that he would have filed earlier had he known the rules-- a reason effectively negating any contention that he filed the form because his views suddenly changed.
13
Looking at Form 150 from the Board's position on October 11, 1966, there was nothing to show that there was a change of status to be considered.4 Thus, the action of the Board was the proper one, pursuant to 32 C.F.R. 1625.2, supra.
14
The only conceivable argument is that the Board should have known, from the filing of the conscientious objector form, that a change of status was being claimed. To hold that a mere filing of a form, regardless of its legal sufficiency, requires the Board to reopen, would seriously disrupt the Selective Service System. This is especially true when the form is not filed until after the induction notice has been received.
15
Affirmed.
1
That section provides that the President may:
'Prescribe the necessary rules and regulations to carry out the provisions of this title * * *'
2
Even in a situation where SSS Form 150 is submitted prior to mailing of the induction notice, the form must present 'a prima facie case for conscientious objector classification,' to require the board to reopen. Stain v. United States, 235 F.2d 339 (9th Cir. 1956); Miller v. United States, Ninth Circuit Dec. 29, 1967, 388 F.2d 973. In the present case, SSS Form 150 was submitted after mailing of the induction notice and the board cannot exercise its discretion to reopen unless it can find a 'change of status' as required by 32 C.F.R. 1625.2, supra
3
This letter reads:
'October 3rd, 1966
'Local Board #135
2100 N. Main St.,
Santa Ana, Calif.
Gentlemen:
I am sending you the special form for conscientious Objectors.
I did not sent it to you earlier because I was ignorant of the laws and proceedures.
I therefore want you to reopen.
Since I now live in Temple City I will go direct to the Induction Station, 1037 South Broadway, Los Angeles, at such time as it becomes necessary to do so for any reason.
Yours Truly: Joseph R. Dugdale'
4
It is noted that Dugdale has never, in any document or in any testimony in this record, pleaded that his views changed after receipt of the induction notice. He nevertheless urges that the Board should have made that determination
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1427
_____________
UNITED STATES OF AMERICA
v.
WILLIE ELMORE,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-11-cr-00361-002)
District Judge: Honorable Christopher C. Conner
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2013
Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.
(Filed: December 18, 2013)
_____________
OPINION
_____________
VANASKIE, Circuit Judge.
Appellant Willie Elmore appeals his conviction and sentence on charges arising
out of an armed bank robbery. Elmore raises several issues: (1) whether Fed. R. Crim. P.
16(a)(1)(A) required pretrial disclosure of Elmore‟s non-verbal actions during an
interrogation by a law enforcement agent; (2) whether the District Court erred in denying
his motions to suppress evidence; (3) whether the District Court incorrectly assigned him
criminal history points for a prior conviction; and (4) whether the District Court
incorrectly assigned him an enhancement for obstruction of justice. Concluding that the
District Court did not err in any of the ways argued by Elmore, we will affirm.
I.
We write primarily for the parties to this action, who are familiar with the facts
and procedural history of this case. Accordingly, we set forth only those facts necessary
to our analysis.
On September 16, 2011, two masked men robbed the Fulton Bank located in
Etters, PA. The men took $13,761 in cash, including ten $20 bills for which the bank had
recorded the serial numbers.1
Upon entering the bank parking lot at the time of the robbery, eyewitness Susan
Stabley observed a black Chevrolet Blazer that was parked “at a very strange place,”
outside of any parking space. (App. 84). Stabley saw a masked man exit the vehicle and
enter the bank, at which point she suspected a robbery was in progress. Stabley left the
bank parking lot and drove to a nearby Rutter‟s Farm Store parking lot, intending to write
down the partial Pennsylvania license plate number she had seen displayed on the
vehicle. Stabley then observed a black Chevrolet Blazer drive by her into the Rutter‟s
parking lot. Although it now displayed a North Carolina license plate with a different
number, Stabley was certain this was the same Blazer she had seen at the bank, as it was
1
Such currency is known as “bait money,” as law enforcement is able to match the stolen
bills to a log of serial numbers maintained by the bank.
2
an old vehicle of a make that she had rarely seen in the area. Stabley recorded this plate
number before returning to the bank to report the information to the police officers, who
had already arrived on the scene.
The officers put out a county-wide bulletin for a vehicle matching the description
Stabley had provided. Police stopped Elmore an hour and a half later after observing him
driving a black Chevrolet Blazer sporting the North Carolina license plates within 15
miles of the bank. Elmore was immediately arrested and patted down. Officers
recovered $510 in Elmore‟s pocket, including six bills that matched the “bait money” that
had been taken during the robbery. Officers also observed cash laying in plain view on
the passenger seat of Elmore‟s vehicle.
Based on the above information, the officers sought and obtained a search warrant
for the Blazer, which was executed later that day. Inside the car, officers found $1,510
and a Motorola Droid cellular phone. Officers sought and obtained a search warrant for
the phone found in the vehicle, which was executed on September 22, 2011. Officers
also obtained warrants to search the records of both the Droid phone found in the car as
well as another number that the Droid had dialed and received calls from around the time
of the robbery. These warrants were executed on September 22, 2011 and September 28,
2011, respectively.
Tristan Green was arrested independently of Elmore in connection with the
robbery. On December 20, 2011, Elmore and Green were indicted on charges of armed
bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and 2, and use of a firearm in
3
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). They were
tried together.
Prior to trial, the District Court denied Elmore‟s motion to suppress the evidence
found in his vehicle. During the trial, the court admitted testimony by FBI Agent
Christopher Nawrocki about his interrogation of Elmore on the day of the robbery.
Nawrocki testified that Elmore repeatedly denied involvement in the robbery, stating “I
didn‟t rob no bank” in response to questions about the bait money that had been found in
his possession. (App. 149). Nawrocki noted, however, that Elmore “looked away” when
shown a photograph of Green and “snapped” his head towards Nawrocki “very quickly”
after Nawrocki mentioned Green‟s name. (App. 149, 162).
After a four-day jury trial, Elmore and Green were each found guilty of both
counts. On February 14, 2013, Elmore was sentenced to 168 months‟ imprisonment.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
A. Admission of Agent Nawrocki’s Testimony on Elmore’s Non-Verbal Reactions
Elmore first contests the District Court‟s admission of Agent Nawrocki‟s
testimony about Elmore‟s non-verbal actions during an interrogation, arguing that those
actions constituted “statement[s]” the prosecution was required to disclose to him prior to
trial pursuant to Fed. R. Crim. P. 16(a)(1)(A). That rule mandates that “[u]pon a
defendant‟s request, the government must disclose to the defendant the substance of any
relevant oral statement made by the defendant, before or after arrest, in response to
4
interrogation by a person the defendant knew was a government agent if the government
intends to use the statement at trial.” Fed. R. Crim. P. 16(a)(1)(emphasis added)
Although by its own language Rule 16(a)(1)(A) only applies to “oral
statement[s],” Elmore argues that in other contexts—such as hearsay law—non-verbal
conduct is sometimes recognized as a “statement.” Even accepting arguendo Elmore‟s
contention that the term “oral statement” in Fed. R. Crim. P. 16(a)(1)(A) should be
interpreted analogously to the term “statement” in the Federal Rules of Evidence, the
conduct at issue here plainly does not qualify. Rule 801(a) of the Federal Rules of
Evidence defines a “statement” as “a person‟s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.” We agree with the District
Court that Elmore‟s movements, as described by Agent Nawrocki at trial, were
“involuntary reaction[s] to a question, certainly not intended as an assertion.” (App.
160). Because his reaction was not intended as a communicative assertion, Rule
16(a)(1)(A) is not implicated.
Even if the Rule was applicable, any error in admitting Agent Nawrocki‟s does not
warrant setting aside the jury verdict. We have held that violations of Rule 16 of the
Federal Rules of Criminal Procedure warrant a new trial only where the “„District Court‟s
actions resulted in prejudice to the defendant.‟” United States v. Davis, 397 F.3d 173,
178 (3d Cir. 2005) (quoting United States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001)).
The evidence of guilt was so abundant that Elmore cannot show “a likelihood that the
verdict would have been different” had the government disclosed prior to trial his
5
reaction to the two statements made by Agent Nawrocki. See id. (quoting Lopez, 271
F.3d 472, 484 (3d Cir. 2001)).
B. Denial of Suppression Motions
Elmore next argues that the District Court should have granted his motions to
suppress evidence found during the search of his vehicle and the subsequent searches of
records relating to several cell phones connected to him. Elmore argues that the
information Stabley gave to police could not support a finding of probable cause to arrest
him and to search his vehicle, because the vehicle Stabley saw in the bank parking lot had
a different license plate.
Law enforcement officers may make an investigative stop of a vehicle upon
“reasonable suspicion” of wrongdoing. United States v. Hensley, 469 U.S. 221, 226
(1985). Following a valid traffic stop, “[p]olice have probable cause to arrest if the
circumstances are sufficient to cause a prudent person to believe that a crime has been
committed and the person to be arrested committed it.” United States v. Stubbs, 281 F.3d
109, 122 (3d Cir. 2002). “We review a district court's determinations of reasonable
suspicion and probable cause de novo.” United States v. Harple, 202 F.3d 194, 196 (3d
Cir. 1999). Probable cause and reasonable suspicion are both to be evaluated based upon
the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 275 (2002);
Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Officers are permitted to draw from “their
own experience and specialized training to make inferences from and deductions about
the cumulative information available.” Arvizu, 534 U.S. at 273.
6
The “totality of the circumstances” here gave the arresting officers both reasonable
suspicion to make the investigative stop of the vehicle and probable cause to effectuate
the warrantless arrest of Elmore. The stop of Elmore‟s vehicle was based on an exact
match of the license plate number and vehicle description provided by a reliable
eyewitness.
In assessing the reliability of an informant‟s tip, we look to factors including
whether:
“(1) the information was provided to the police in a face-to-
face interaction, allowing an officer to assess directly the
informant's credibility; (2) the informant can be held
responsible if her allegations are untrue; (3) the information
would not be available to the ordinary observer; (4) the
informant has recently witnessed the criminal activity at
issue; and (5) the witness's information accurately predicts
future activity.”
United States v. Johnson, 592 F.3d 442, 449 (3d Cir. 2010). Many of those factors were
satisfied by Stabley‟s conversation with the officers at the bank. Stabley provided the
officers with the vehicle‟s description in a face-to-face interaction shortly after she
witnessed the robbery. Stabley gave officers her biographical and contact information,
allowing them to hold her responsible if it was later revealed that she had provided false
information. Finally, Stabley gave the officers a specific license plate number that was
later located within 15 miles of the robbery site.
Although Stabley provided two different license plate numbers, an analysis of the
“totality of the circumstances” still supports the conclusion that police officers had a
“particularized and objective basis for suspecting legal wrongdoing” when they stopped
7
Elmore‟s vehicle. Arvizu, 534 U.S. at 273. Stabley saw the Blazer bearing the North
Carolina license plates in the Rutter‟s parking lot just minutes after witnessing the
robbery from the bank parking lot located just down the street. Stabley testified that she
was certain at the time that this was the same Blazer she had seen masked men exit in the
bank parking lot, based upon the age and the uniqueness of the vehicle. Officers were
permitted to draw the inference that the operators of the vehicle involved in the bank
robbery might have changed its license plate in an attempt to avoid detection. See, e.g.,
United States v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006) (carjackers switched license
plates with another vehicle “to increase their chance of avoiding capture”). Elmore was
found within 15 miles of the bank an hour and a half after the robbery, operating a
vehicle whose description and license plates were an exact match to those provided by a
reliable eyewitness. Based on the totality of the circumstances, we conclude that officers
also had probable cause to arrest him at this point.
Because probable cause existed to arrest Elmore, law enforcement officers would
not have violated Elmore‟s Fourth Amendment rights had they immediately searched the
vehicle after taking Elmore into custody. See Arizona v. Gant, 556 U.S. 332, 343 (2009).
(holding that “circumstances unique to the vehicle context justify a search incident to a
lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle”). The officers instead awaited a Magistrate‟s issuance of a
warrant before searching the vehicle. We see no basis to conclude that this search was
invalid. The subsequent searches of phone data and phone records are therefore not fruits
of an invalid search and were also properly admitted at trial.
8
C. Calculation of Guideline Range
Elmore argues the District Court erred in sentencing him by accepting his Pre-
Sentence Report, which assigned him three criminal history points for a 1992 conviction
involving the possession of stolen property and provided for a two level enhancement for
obstruction of justice.
The Report calculated Elmore‟s criminal history points under U.S.S.G. § 4A1.1(a),
which advises courts to apply three points for “each prior sentence of imprisonment
exceeding one year and one month.” The application notes for § 4A1.1(a) provide that
“[a] sentence imposed more than fifteen years prior to the defendant‟s commencement of
the instant offense is not counted unless the defendant‟s incarceration extended into this
fifteen-year period.” Elmore was sentenced to a term of 2 to 4 years in prison in August
of 1993 for possession of stolen property. Elmore‟s sentence on that charge expired on
July 5, 1997, within fifteen years of the commission of the bank robbery on September
16, 2011.
Elmore argues that because his term of imprisonment for the possession of stolen
property offense was indeterminate, with a minimum of two years, he only remained
incarcerated into the § 4A1.1(a) period due to the imposition in September of 1994 of a
12 ½ to 15 year sentence for an unrelated robbery conviction. Elmore thus offers that his
possession of stolen property offense should not count for three criminal history points
under U.S.S.G. § 4A1.1(a). We disagree. Elmore‟s 1994 robbery sentence ran
concurrently with his 1993 possession of stolen property sentence. Because Elmore was
sentenced to greater than one year and one month of imprisonment on the possession of
9
stolen property charge and his incarceration on that sentence extended into this fifteen-
year period prior to September 2011, the District Court did not err in applying three
criminal history points for this conviction under § 4A1.1(a).
Elmore was also assigned a two-level enhancement for obstruction of justice based
upon the testimony of his fellow inmate Philip Frasier. Frasier testified that Elmore had
asked him for help in finding someone to kill Stabley. Elmore alleges that Frasier‟s
testimony was not plausible. Regardless, “[t]he credibility of witnesses is
quintessentially the province of the trial court, not the appellate court.” Dardovitch v.
Haltzman, 190 F.3d 125, 140 (3d Cir. 1999). We cannot conclude on appeal that the
District Court erred in relying on Frasier‟s testimony.
III.
For the foregoing reasons, we will affirm the District Court‟s judgment.
10
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6470
MICHAEL ANTHONY HARMON, JR.,
Plaintiff - Appellant,
versus
JOHN J. LAMANNA, Federal Correctional
Institution Edgefield; J. SERRANO, M.D.,
Clinical Director; R. BLACKER, M.D., Staff
Physician; MRS. ROSARIO, Health Services
Administrator; L. GUEVARA, Physician
Assistant, in their official and individual
capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:06-cv-01143-GRA)
Submitted: August 30, 2007 Decided: September 6, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Anthony Harmon, Jr., Appellant Pro Se. Barbara Murcier
Bowens, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Anthony Harmon, Jr., appeals the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his complaint filed pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. Harmon v. LaManna, No. 6:06-cv-01143-GRA (D.S.C. Mar. 13,
2007). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 2 -
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232 F.3d 1369 (Fed. Cir. 2000)
LSI INDUSTRIES INC., Plaintiff-Appellant,v.HUBBELL LIGHTING, INC., Defendant-Appellee.
00-1052
United States Court of Appeals for the Federal Circuit
DECIDED: November 29, 2000
Appealed from: U.S. District Court for the Southern District of Ohio Judge Sandra S. BeckwithJ. Robert Chambers, Wood, Herron, & Evans, L.L.P., of Cincinnati, Ohio, argued for plaintiff-appellant. With him on the brief was Theodore R. Remaklus.
Marks S. Bicks, Roylance, Abrams, Berdo & Goodman, L.L.P., of Washington, DC, argued for defendant-appellee. With him on the brief was Alfred N. Goodman.
Before GAJARSA, LINN, and DYK, Circuit Judges.
GAJARSA, Circuit Judge.
DECISION
1
LSI Industries, Inc. ("LSI") appeals the September 17, 1999 final judgment of the United States District Court for the Southern District of Ohio dismissing its complaint against Hubbell Lighting, Inc. ("Hubbell") pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. LSI Indus. Inc. v. Hubbell Lighting Inc., 64 F. Supp. 2d 705 (S.D. Ohio 1999). We reverse and remand.
BACKGROUND
2
LSI manufactures and sells lighting products, including its Scottsdale canopy luminaire. Hubbell sells a competing product that LSI contends infringes, inter alia, one of its design patents and its trademark rights. Hubbell is a Connecticut corporation that maintains its principal place of business in Virginia. It employs multiple distributors in Ohio and nets several millions of dollars per year from sales in Ohio. Hubbell, however, has not sold any of its allegedly infringing products in Ohio.
3
LSI filed a complaint in the United States District Court for the Southern District of Ohio on May 24, 1999 against Hubbell. Five weeks later, LSI filed a motion for a temporary restraining order and a preliminary injunction to prevent Hubbell from selling its allegedly infringing product. In response, Hubbell moved to dismiss the case for lack of personal jurisdiction and improper venue, or, in the alternative, for a change of venue. On July 8, 1999, the district court conducted a preliminary hearing. It determined a reasonable probability existed that LSI would establish that the district court could exercise personal jurisdiction over Hubbell. The court, however, denied LSI's motion for a temporary restraining order. Subsequently, Hubbell renewed its motion to dismiss for lack of personal jurisdiction, or, alternatively, for a change of venue.
4
On rehearing, the district court determined that the Ohio long-arm statute, Ohio Revised Code ("O.R.C.") section 2307.382, fails to reach the limits of the Due Process Clause of the United States Constitution. Accordingly, the district court stated that satisfaction of both the Due Process Clause and the Ohio long-arm statute was required for it to exercise personal jurisdiction over Hubbell. Based on Hubbell's significant contacts with the state of Ohio, the court concluded that it could properly exercise general jurisdiction over Hubbell pursuant to the Due Process Clause. The court, however, citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 30 USPQ2d 1001 (Fed. Cir. 1994), held that the locus of LSI's injury could not be in Ohio because Hubbell did not sell its allegedly infringing product in Ohio. Pursuant to this determination, the district court stated that Hubbell's sales activity failed to comply with the Ohio long-arm statute, and in particular with O.R.C. section 2307.382(A)(4).1 Therefore, the court concluded it could not exercise personal jurisdiction over Hubbell and consequently, granted Hubbell's motion to dismiss for lack of personal jurisdiction.
DISCUSSION
A. Standard of Review
5
Whether a court maintains personal jurisdiction over a party is a question of law that we review de novo. 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1376, 48 USPQ2d 1773, 1775 (Fed. Cir. 1998).
B. Jurisdiction and Choice of Law
6
The Federal Circuit maintains exclusive jurisdiction over an appeal from a district court when that court's jurisdiction is based at least in part on a claim arising under the patent laws of the United States. 28 U.S.C. §§ 1295(a); 1338(a) (1994 & Supp. IV 1998).
7
When analyzing personal jurisdiction for purposes of compliance with federal due process, Federal Circuit law applies. 3D Sys., 160 F.3d at 1377, 48 USPQ2d at 1776. We defer to a state's highest court to interpret whether a defendant is amenable to process in the forum state. See Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 488, 96 S. Ct. 2308, 2312, 49 L. Ed. 2d 1 (1976); see also 3D Sys., 160 F.3d at 1377, 48 USPQ2d at 1775-76.
C. Personal Jurisdiction
8
A two-prong inquiry governs the determination of whether a court may properly exercise personal jurisdiction over an out-of-state defendant. First, a defendant must be amenable to process in the forum state. Second, the court's exercise of personal jurisdiction over the defendant must comply with the precepts of federal due process as delineated in International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) and its progeny.
9
The first prong of the personal jurisdiction inquiry was outlined by the United States Supreme Court in Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S. Ct. 404, 409,98 L. Ed. 2d. 415 (1987):
10
Before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There must also be a basis for the defendant's amenability to service of summons. . . . [S]ervice of process in a federal action is covered generally by Rule 4 of the Federal Rules of Civil Procedure . . . .
11
A defendant is amenable to service of process if it "could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district is located." Fed. R. Civ. P. 4(k)(1)(A). Satisfaction of this standard may be attained in a variety of ways. For example, this requirement is fulfilled when a defendant's conduct falls within the bounds of one of a forum state's jurisdictional statutes, such as a long-arm statute or a nonresident motorist statute. Alternatively, in Ohio, this prong of the personal jurisdiction inquiry is fulfilled when the requirements outlined by the Ohio Supreme Court in Perkins v. Benguet Consolidated Mining Co., 158 Ohio St. 145, 107 N.E.2d 203 (Ohio 1952), are met.
12
In Perkins, Idonah Slade Perkins ("Perkins") brought two actions in the common pleas court of Ohio against several parties including the Benguet Consolidated Mining Company ("Benguet"), a foreign corporation organized under the laws of the Philippine Islands. Perkins v. Benguet Consol. Min. Co., 63 Ohio Law Abs. 131 (Ohio Com. Pl. 1948). Benguet had been conducting business in Ohio, but the causes of action sued on did not arise in Ohio and did not relate to the corporation's activities in Ohio.2 Id. In each case, Benguet moved to quash the service of process on its president in Ohio. Id. The common pleas court granted Benguet's motions on the grounds that (1) the defendant was a foreign corporation and therefore could not be served with summons in accordance with the provisions of the Ohio statutes referencing service on a partnership, and (2) the business conducted by the defendant in Ohio was insufficient legally to authorize service of process on the defendant in Ohio. Perkins v. Benguet Consol. Min. Co., 98 N.E.2d 33, 35 (Ohio 1951).
13
These decisions were affirmed by the Ohio Court of Appeals and by the Ohio Supreme Court. Perkins v. Benguet Consol. Min. Co., 95 N.E.2d 5 (Ohio Ct. App.1950);Perkins, 98 N.E.2d at 33. The Ohio Supreme Court held:
14
The doing of business in this state by a foreign corporation . . . will not make the corporation subject to service of summons in an action in personam brought in the courts of this state to enforce a cause of action not arising in this state and in no way related to the business or activities of the corporation in this state.3
15
Perkins, 98 N.E.2d at 34. Perkins appealed to the United States Supreme Court.
16
The United States Supreme Court stated that it was unclear whether the Ohio Supreme Court rested its decision on Ohio law or on the Fourteenth Amendment. Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 441, 72 S. Ct. 413, 416, 96 L. Ed. 485 (1952), reh'g denied, 343 U.S. 917 (1952). It then determined, on the facts at issue, that federal due process neither compelled nor prohibited Ohio from taking or declining jurisdiction over Benguet. Id. at 446, 72 S. Ct. at 418. The Court vacated the case and remanded it to the Ohio Supreme Court to determine whether personal jurisdiction was appropriate under Ohio law. Id. at 448, 72 S. Ct. at 420.
17
Pursuant to the Supreme Court's determination that federal due process neither compelled nor prohibited the exercise of jurisdiction, the Ohio Supreme Court held:
18
Where jurisdiction is not limited by statutes to causes of action arising within the state, an action on a transitory cause may be maintained in the courts of this state by a nonresident against a foreign corporation doing business here, although the cause did not arise here or relate to the corporation's business transacted here.4
19
Perkins, 158 Ohio St. at 145, 107 N.E.2d at 204 (emphasis added). The court next addressed whether the defendant corporation, Benguet, was "doing business" in Ohio at the time the actions were instituted. The court held:
20
A foreign mining corporation is doing business in this state where its local activities include: continuous maintenance of an office by the president who is the general manager and also one of the principal stockholders, continuous maintenance of two active bank accounts since 1942 with substantial balances of company funds, business correspondence, stock transfers, payment of salaries, directors' meetings, the purchase of machinery and supplies for use in the company's business, and supervision of the company's policy in rehabilitating its properties.
21
Id. (emphasis added). Consequently, the court remanded the cases to the common pleas court with instructions to overrule the motions to quash the services of summons. Id.
22
In essence, the Ohio Supreme Court adopted a federal due process general jurisdiction standard as a hook for prong one of the personal jurisdiction inquiry. That is, when an out-of-state defendant conducts "continuous and systematic" business in Ohio, it is "doing business" in Ohio and is amenable to process there, even if the cause of action did not arise from activity in Ohio.
23
In 1965, the Ohio legislature enacted the Ohio long-arm statute. 1965 Ohio Laws 2307.382. This statute recognizes that certain causes of action will make a defendant amenable to process in Ohio. This statute, however, fails to supplant the viability ofPerkins. The Ohio long-arm statute does not limit personal jurisdiction in Ohio to causes of action arising from conduct it covers. Indeed, the statute provides: "When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him." Ohio Rev. Code Ann. § 2307.382(C) (West 2000). As the term "solely" indicates, Ohio courts can maintain personal jurisdiction over an out-of-state defendant conducting activity not enumerated in the Ohio long-arm statute. Further, in 1976, the Ohio Supreme Court applied the Perkins doctrine without mention of the Ohio long-arm statute in Wainscott v. St. Louis-San Francisco Railway Co., 351 N.E.2d 466 (1976).
24
Wainscott involved an action brought by an Ohio resident against a Missouri-based railroad corporation ("Railroad"). While the Railroad maintained offices in Cleveland and Cincinnati, it owned no real property in Ohio, maintained no bank accounts in Ohio, and its agents performed no business-related functions in Ohio other than the solicitation of orders for freight traffic over its out-of-state lines. Wainscott, 351 N.E.2d at 474. The cause of action was unrelated to the Ohio contacts.
25
In the syllabus, the Wainscott court stated: "The due process clause of the Fourteenth Amendment to the United States Constitution requires a determination that a foreign corporation has certain minimum contacts with Ohio such that it is fair that a defendant defend a suit brought in Ohio and that substantial justice is done." Id. at 467. To reach its holding, the court necessarily applied the Perkins rule. Indeed, the text ofWainscott explicitly refers to the syllabus of Perkins, stating, "an action on a transitory cause may be maintained in the courts of this state by a nonresident against a foreign corporation doing business here, although the cause did not arise here or relate to the corporation's business transacted here." Id. at 469 (quoting Perkins, 107 N.E.2d at 204).
26
The Wainscott court held that the "mere solicitation" doctrine applied for general jurisdiction purposes and was limited by the necessary minimum contacts of due process. This rationale was discussed in its opinion by first summarizing the Supreme Court's "mere solicitation of business" standard set out in Green v. Chicago, Burlington & Quincy Railway Co., 205 U.S. 530, 27 S. Ct. 595, 51 L. Ed. 916 (1907), a case which itself concerned a cause of action unrelated to activities within the state:
27
The United States Supreme Court applied this [mere solicitation of business] doctrine to a foreign railway corporation, holding that the company was not doing business nor present within the state so as to make it amenable to the jurisdiction . . . of the courts . . . . [A]lthough the business of soliciting passengers and freight outside the area covered by the railway company's lines was probably essential, it was incidental and collateral to the main purpose of the company. . . . The railway company's agents sold no tickets and received no payments for transportation of freight.
28
Wainscott, 351 N.E.2d at 471-72.
29
In the text of his opinion, Justice Corrigan of the Ohio Supreme Court discussed the personal jurisdiction precepts set forth in International Shoe, requiring a court to look at the circumstances of each case to determine whether there exist certain "minimum contacts" with the forum state so that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Int'l Shoe, 326 U.S. at 316, 66 S. Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)). Because the International Shoe Court did not overrule Green, Justice Corrigan noted, "the facts in Green failed to establish sufficient minimum contacts so as to make it fair for the defendant to defend a suit in the forum state and to satisfy the requirement that substantial justice be done." Wainscott, 351 N.E.2d at 473. In the text of his opinion, Justice Corrigan then applied the guidelines set out in International Shoe to the facts at issue and concluded, as in Green, that the Railroad was "merely soliciting business" in Ohio rather than "doing business" in Ohio and consequently stated that personal jurisdiction in Ohio was not proper because the cause of action was unrelated to the Ohio contacts. Id. at 474.
30
In sum, the Wainscott court conflated the "doing business" language of Perkins with federal due process jurisprudence for unrelated causes of action. This mode of analysis is similar to the Ohio Supreme Court's analysis in Perkins, which equated "doing business" with "continuous and systematic contacts." See Perkins, 107 N.E.2d at 206. Therefore, a defendant conducting activity that meets the federal due process threshold for general jurisdiction is necessarily amenable to process under Ohio's "doing business" standard as described in Perkins.
31
The second prong of a personal jurisdiction analysis necessitates an inquiry into whether a defendant maintains sufficient "minimum contacts" with the forum state. The Supreme Court has stated: "[D]ue process requires only that in order to subject a defendant to a judgment in personam . . . he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe, 326 U.S. at 316, 66 S. Ct. at 158 (quoting Milliken, 311 U.S. at 463, 61 S. Ct. at 343). In short, the Due Process Clause requires a court to determine whether a defendant "should reasonably anticipate being haled into court there."5 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). Under the "minimum contacts" test, a defendant may be subject to either specific jurisdiction or general jurisdiction. Specific jurisdiction "arises out of" or "relates to" the cause of action even if those contacts are "isolated and sporadic." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S. Ct. 2174, 2182, 85 L. Ed. 2d 528 (1985). General jurisdiction arises when a defendant maintains "continuous and systematic" contacts with the forum state even when the cause of
32
action has no relation to those contacts. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S. Ct. 1868, 1872-73, 80 L. Ed. 2d 404 (1984).
33
Neither the United States Supreme Court nor this court has outlined a specific test to follow when analyzing whether a defendant's activities within a state are "continuous and systematic." Instead, a court must look at the facts of each case to make such a determination.
34
The district court in the case at issue noted that Hubbell did not mount a significant challenge to the court's exercise of jurisdiction pursuant to the Due Process Clause. The court further recognized that LSI "has ably demonstrated that the [c]ourt may properly exercise general jurisdiction over [Hubbell], inasmuch as [Hubbell] has had a significant amount of contacts with Ohio." LSI, 64 F. Supp. 2d at 707. We agree. Based on Hubbell's millions of dollars of sales of lighting products in Ohio over the past several years and its broad distributorship network in Ohio, we find that Hubbell maintains "continuous and systematic" contacts with Ohio. Therefore, Hubbell is subject to general jurisdiction in Ohio under the Due Process Clause.
35
Because Hubbell is subject to general jurisdiction in Ohio under the Due Process Clause, it is necessarily amenable to process in Ohio under Perkins for the aforementioned reasons. Therefore, because Hubbell's activities in Ohio meet both prongs of the two-pronged personal jurisdiction inquiry, the United States District Court for the Southern District of Ohio maintains personal jurisdiction over Hubbell.
CONCLUSION
36
. For the reasons set forth in this opinion, we reverse the district court's dismissal of LSI's complaint pursuant to Federal Rule of Civil Procedure 12(b)(2).
37
REVERSED and REMANDED.
COSTS
38
Each party shall bear its own costs.
NOTES:
1
Personal jurisdiction is proper under O.R.C. section 2307.382(A)(4) when a cause of action "aris[es] from [defendant's] [c]ausing tortious injury in this state by an act or omission outside this state if [it] regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state . . . ." Ohio Rev. Code Ann.§ 2307.382(A)(4) (West 2000).
2
Benguet owned mining property in the Philippine Islands. Its operations there were halted during occupation of the islands by the Japanese. During that period, Benguet's president returned to his home in Ohio where he maintained an office. At the Ohio office, he maintained company files, carried on correspondence relating to the company and its employees, drew checks on behalf of the company, and maintained two active bank accounts carrying substantial balances of company funds. Further, several directors' meetings were held at the Ohio office. He also supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines from the Ohio office. See Perkins v. Benguet Consol. Min. Co., 95 N.E.2d 5, 6-9 (1950).
3
Under Ohio law, only the syllabus of an Ohio Supreme Court opinion states the controlling point or points of law for the case. Rule 1(B), Supreme Court of Ohio Rules for the Reporting of Opinions (West 2000); see also Perkins v. Benguet Min. Co., 342 U.S. 437, 442 n.3, 72 S. Ct. 413, 417 n.3, 96 L. Ed. 485 (1952), reh'g denied, 343 U.S. 917 (March 31, 1952) (recognizing the practice). Nonetheless, the opinion accompanying the syllabus provides useful guidance on interpreting the syllabus. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566, 97 S. Ct. 2849, 2853, 53 L. Ed. 2d 965 (1977) ("[W]e are permitted to consult [the opinion] for understanding of the syllabus."); Hostetler v. Consol. Rail Corp., 123 F.3d 387, 391 (6th Cir. 1997) ("Although the Ohio Supreme Court lays down the law through the syllabus, we may look to the body of the opinion for explication of that syllabus law.").
4
In the text of the opinion, Ohio Supreme Court Chief Justice Weygandt stated that the Ohio Supreme Court's original holding was based solely on the ground that federal due process prohibited personal jurisdiction on the facts of the case at issue. Perkins, 107 N.E.2d at 204-05.
5
Because Federal Circuit jurisdiction in this case exists by virtue of a federal question, "[t]he Due Process Clause that is at issue here is the Due Process Clause of the Fifth Amendment." Beverly Hills Fan, 21 F.3d at 1560 n.1, 30 USPQ2d at 1003 n.1. "The Supreme Court's constitutional jurisprudence of personal jurisdiction . . . includes only state and diversity cases, and thus explicates the demands of the Fourteenth Amendment's Due Process Clause, rather than that of the Fifth's." Akro v. Luker, 45 F.3d 1541, 1544-45, 33 USPQ2d 1505, 1508 (Fed. Cir. 1995). The Federal Circuit has "nonetheless applied the 'minimum contacts' standard . . . to questions of personal jurisdiction in federal cases, such as those arising under the patent laws." Id.
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571 So.2d 24 (1990)
JOHN CHRISTEN Corporation, Appellant,
v.
Sal Maita, Richard Cami, Seashells, Inc., Seashells I, Inc., and Seashells II, Inc., Appellees.
No. 89-03326.
District Court of Appeal of Florida, Second District.
July 13, 1990.
*25 Mark Herron and Joseph Brennan Donnelly of Moffitt, Hart & Herron, P.A., Tallahassee, for appellant.
Henry Gonzalez, Tampa, and Joseph G. Spicola, Jr., of Spicola & Larkin, P.A., Tampa, for appellees.
ALTENBERND, Judge.
The plaintiff, John Christen Corporation, appeals a nonfinal order changing venue in this trade secret and trademark action from Hillsborough County to Dade County under section 47.122, Florida Statutes (1989). We reverse because the defendants, Richard Cami, Seashells, Inc., Seashells I, Inc., and Seashells II, Inc., did not prove that the Dade County forum would be substantially more convenient than the Hillsborough County forum since there are many witnesses in both locations. Ashland Oil, Inc. v. Florida Dept. of Transp., 352 So.2d 567 (Fla. 2d DCA 1977); Velez v. Mell D. Leonard & Assocs., 338 So.2d 896 (Fla. 2d DCA 1976).
The plaintiff is a Florida corporation which operates a "Shells" seafood restaurant in Hillsborough County. It also licenses other Shells restaurants in Florida and manages this operation from its headquarters in Hillsborough County. It filed a complaint in February 1988 which alleged that Sal Maita was a resident of Hillsborough County and had worked as a manager-trainee in its Hillsborough County Shells. Mr. Maita allegedly obtained confidential trade secrets, including secret recipes, and transferred that information to Mr. Cami for use in similar restaurants which operate in South Florida as "Seashells." There is no dispute that venue is proper in Hillsborough County. Thus, the action may be transferred only if the defendants prove that a change of venue would be "for the convenience of the parties or witnesses or in the interest of justice." § 47.122, Fla. Stat. (1989).
After the case had been pending for eighteen months and had once been set for trial by stipulation of the parties, the defendants moved for a change of venue.[1] The motion was not verified. The only evidence in support of the motion came from seven form affidavits from individuals who state that they live in Dade or Broward County, have relevant evidence, and are "prepared to speak" to the lack of confusion between the restaurants. The defendants also argued that a jury would need to conduct a view of its restaurants in South Florida.
The convenience of the witnesses is not a factor permitting a change of venue in this case. From the limited evidence in the defendants' form affidavits and the plaintiff's counteraffidavit, it appears that at trial the parties will need to call witnesses from both communities. Thus, some witnesses will be inconvenienced by the selection of either forum. The witnesses' status in this case appears comparable to the circumstances in Velez that did not permit a change of venue.
Since Velez was decided, there has been an important development in discovery methods which strengthens the rule discouraging changes of venue in cases involving witnesses in two competing forums. Recent amendments to the Florida Rules of Civil Procedure permit depositions recorded by videotape. Fla.R.Civ.P. *26 1.310(b)(4). This procedure permits the jury to receive a close equivalent of live testimony without inconveniencing witnesses with travel. Although there may be cases in which it would not be in the interest of justice for one party's witnesses to testify live while the other party's witnesses testify by videotape, the defendants have not demonstrated this to be one of those cases.
The possibility that the trial court in Dade County might grant a jury view of a relevant business location is also an insufficient ground to support a change of venue in this case. Houchins v. Florida East Coast Ry., 388 So.2d 1287 (Fla. 3d DCA 1980). Again, the availability of photographic and video evidence should allow all relevant locations, whether they are located in Dade County, Broward County, or Hillsborough County, to be adequately and equally presented to the jury.
Reversed and remanded.
LEHAN, A.C.J., and PATTERSON, J., concur.
NOTES
[1] The plaintiff argues that the defendants should be prohibited from filing a motion for change of venue at this late stage of the proceedings. The statute itself contains no time limitation. § 47.122, Fla. Stat. (1989). Whitehead v. Nat'l Crane Corp., 466 So.2d 412 (Fla. 3d DCA 1985). Although a long delay in making such a request may be a circumstance which adversely affects the "interest of justice," we decline to rely upon the time delay as a factor in our decision in this case.
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346 F.Supp. 839 (1971)
In the Matter of DISCON CORPORATION, Debtor.
No. 69-425-BK.
United States District Court, S. D. Florida,
March 12, 1971.
*840 *841 Gunn & Venney, C. Peter Buhler, Miami, Fla., for Discon Corp.
William L. Eagan, Arnold, Matheny & Eagan, P. A., Orlando, Fla., for Radiation, Inc.
ORDER
FULTON, Chief Judge.
This cause came before the Court upon a petition filed by Radiation, Inc., a creditor of the corporation in arrangement, Discon Corporation, for review of an order of the Referee in Bankruptcy confirming a Chapter XI plan of arrangement.
Discon Corporation is a Florida corporation, organized in 1964, and engaged in the business of manufacturing and developing display devices and related electronic components which have commercial and military use. According to a prospectus issued by Discon in March, 1969, the company's sales have declined each year since its formation. The company has apparently never been financially successful. In March of 1969, in order to improve its financial position, the company offered for sale to the public a $500,000 issue of seven per-cent subordinate convertible debentures. Nine months after the sale of these debentures, Discon filed its petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701-799.
An arrangement under Chapter XI of the Bankruptcy Act may be by way of settlement, satisfaction, composition, or extension of the debtor's unsecured debts. It does not affect secured debt. A Chapter XI proceeding is not a liquidation as would occur in a straight bankruptcy; the debtor is given a reasonable opportunity to rehabilitate himself. 1 Collier Bankruptcy Manual ¶ XI-1.01 (2nd ed.) (1970); 9 Am.Jur.2d, Bankruptcy § 1287. Arrangement proceedings are governed by equitable principles and doctrines. In re Trans-Pacific Corp., 76 F.Supp. 623 (S.D.Cal.1948).
As stated, Chapter XI arrangements adjust only unsecured debts. These debts may be considered in one group, or they may be separated into classes. Section 351 of the Act (11 U. S.C. § 751) provides:
For the purposes of the arrangement and its acceptance, the court may fix the division of creditors into classes . . ..
Section 357 (11 U.S.C. § 757) provides:
An arrangement made within the meaning of this chapter may include
(1) provisions for treatment of unsecured debts on a parity one with the other, or for the division of such debts into classes and the treatment thereof in different ways or upon different terms . . ..
See 1 Collier Bankruptcy Manual ¶ XI-7.01 (1970); 9 Am.Jur.2d, Bankruptcy § 1318. A division of creditors into different classes and a treatment thereof in different ways or a failure to divide into classes must be done on a reasonable basis so that the arrangement is in the best interests of the creditors. In the matter of Hudson-Ross, Inc., 175 F. Supp. 111 (N.D.Ill.1959). To be in the best interests of creditors, the plan must give the creditors more than they would receive in liquidation. In re Peoples Loan & Investment, 410 F.2d 851 (8th Cir. 1969); Technical Color & Chem. Works, Inc. v. Two Guys from Massapequa, Inc., 327 F.2d 737 (2nd Cir. 1964).
Section 366 of the Bankruptcy Act (11 U.S.C. § 766) provides the Court with the prerequisites to confirmation of a Chapter XI plan. Before the Court may confirm, it must be satisfied that *842 the plan is "for the best interests of the creditors and is feasible."
Among Discon Corporation's unsecured creditors are the holders of the debentures sold less than a year prior to the time Discon filed its petition for arrangement. These debentures are subordinate debentures. The word "subordinate" is defined by Webster in the following manner:
Placed in a lower order, class, or rank: holding a lower or inferior position.
To place in a lower order or class: make or consider as of less value or importance.
Webster's Third New Int'l Dictionary, Unabridged (1967).
Even though equality among unsecured creditors is a fundamental principle in ordinary bankruptcy proceedings, In re Wyse, 340 F.2d 719 (6th Cir. 1965), agreements between creditors for subordination or postponement of their claims have traditionally been recognized and enforced by bankruptcy courts. In re Wyse, 340 F.2d 719 (6th Cir. 1965); Bird & Sons Sales Corp. v. Tobin, 78 F. 2d 371 (8th Cir. 1935); In re Aktiebolaget Kreuger & Toll, 20 F.Supp. 964 (D. D.C.1938); St. Louis Union Trust Co. v. Champion Shoe Machinery Co., 109 F.2d 313 (8th Cir. 1940); In re Itemlab, Inc., 197 F.Supp. 194 (D.C.N.Y.1961); In re Credit Indus. Corp., 366 F.2d 402 (2nd Cir. 1966); Elias v. Clarke, 143 F.2d 640 (2nd Cir. 1944); 3A Collier on Bankruptcy, #65.06 at 2294. Furthermore, whether the proceeding is a liquidation proceeding or one under Chapter XI is immaterial to the enforcement of the subordination agreement. In re Dodge-Freedman Poultry Co., 148 F. Supp. 647 (N.D.N.H.1956). "In adjudicating and enforcing the rights of parties under subordination agreements, this Court sits as a court of equity and can order distribution either under liquidation, or a plan of arrangement according to the rights fixed by the parties in their own contracts." In re Itemlab, Inc., 197 F.Supp. at 196. In Scolnick v. Connecticut Telephone & Electric Corp., 265 F.2d 133 (2nd Cir. 1959), the Second Circuit Court of Appeals confirmed a plan of arrangement in which subordinate debenture holders were classified and treated differently than the unsecured general creditors. In that case, the debenture holders had completely subordinated their claims to those of all other creditors; the plan gave the debenture holders 5% of the face value of the debentures. The unsecured creditors received 15%.
Furthermore, both the indenture under which the Discon debentures were issued and the prospectus provide that
upon any dissolution, winding up or liquidation . . . reorganization, readjustment, arrangement, or similar proceeding . . . whether in bankruptcy, insolvency, or receivership proceedings or otherwise . . .
(a) the principal of (and premium, if any) and interest on all Superior Indebtedness shall first be paid in full in cash or money's worth, or provision made for such payment, before any payment is made on account of the principal of . . . or any interest on the Debentures . . ..
Discon Corp., Indenture dated February 1, 1969, § 4.03; Discon Corp., Prospectus dated March 4, 1969, at 20-1. Thus, the debenture holders have agreed that even in the event of an arrangement, their claims will be subordinate to those claims which are superior. If there is any question that under the present plan the debenture holders are at a real advantage, to the disadvantage of the general unsecured creditors, Discon's letter of May 11, 1970, to the debenture holders clarifies that question. According to the letter, written by Mr. O'Maley, President of Discon,
the debenture holders are receiving the most advantageous treatment of any of the unsecured creditors with claims in excess of $50.00. While the debenture is expressly subordinate to other claims, the plan ignores this subordination and treats the debenture claimant *843 on a par with other unsecured creditors whose claims exceed $50.00.
Respondent Discon has urged that the agreement should not be enforced, because the superior creditors have failed to show reliance upon the subordination agreement. However, the Discon indenture expressly waives the defense of reliance. Section 4.08 of the Indenture, at 33, provides:
Reliance by Superior Indebtedness on Subordination Provisions. Each holder of any Debenture by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of Superior Indebtedness, whether such Superior Indebtedness was created or acquired before or after the issuance of the Debentures . . . and such holder of Superior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, such Superior Indebtedness.
When presented with a similar claim of lack of reliance upon a subordination agreement, where reliance had been expressly waived, the Second Circuit Court of Appeals held:
To permit the noteholders at this late date to engraft a condition of reliance onto their subordination agreements would result in granting them a windfall which has no justification in reason, equity or logic. * * * [It] is not without significance that subordinated debt such as that involved here is widely employed today in financing commercial enterprises. * * * To deprive lending institutions of the right to enforce lawful subordination agreements and require them to prove in each instance that they relied on such agreements in advancing funds to businesses would not only place in jeopardy literally billions of dollars of outstanding loans, but in all probability would prompt lending institutions to reconsider, and possibly curtail, their subordinated debt-financing activities . . ..
In re Credit Indus. Corp., 366 F.2d 402, 410 (2nd Cir. 1966). In conclusion, therefore, a creditor can enforce in bankruptcy a subordination agreement which was executed for his benefit without alleging or proving that he relied thereon.
The present case is further complicated by the fact that there appears, at first glance, to be a conflict between the prospectus and the indenture as to the specific debts to which the debentures are subordinate. However, upon closer examination, it is clear that there is no conflict on this point. The prospectus provides that the debentures are subordinated to the prior payment in full of principal and interest on all superior indebtedness. "Superior Indebtedness" is defined by the prospectus as
all indebtedness of the Company for money borrowed . . . whenever created or incurred . . ..
The indenture also provides that the debentures issued thereunder will be subordinate to all superior indebtedness. The indenture defines "superior indebtedness" as
all other indebtedness of the Company, whenever created or incurred . . ..
This definition does not at first appear to be limited to all money borrowed; however, this is not so. "Indebtedness" is defined by the indenture as
any indebtedness for money borrowed for the payment of which such corporation is primarily or secondarily liable . . .. Such term shall be deemed to include any amounts in respect of rental or purchase obligations under any lease of real or personal properties . . ..
Discon Corp., Indenture at 13, 15.
There is, however, an apparent conflict between the indenture and the prospectus provisions with regard to priorities between creditors in the event of Discon's insolvency. The prospectus provides
in the event of insolvency, creditors of the Company who are not holders of *844 Superior Indebtedness or of Debentures may recover less, ratably, than holders of Superior Indebtedness, but may recover more, ratably, than holders of Debentures. Discon Corp., Prospectus at 20-1.
No comparable provision with regard to holders of non-superior indebtedness appears in the indenture. The indenture, in fact, makes no mention of non-superior creditors.
According to Fletcher on Corporations, debentures, which are obligations representing unsecured indebtedness, are usually issued under an indenture in which a trust company agrees to supervise the execution of the debtor's covenants for the benefit of the debenture holders. 6A Fletcher Cyclopedia on Corporations § 2636 (1968). Corporate debt securities may not be offered for sale to the public unless they are issued under an indenture, and the indenture conforms to the statutory standards of the Trust Indenture Act of 1939. Furthermore, debt securities issued under such indenture must be registered in accord with the Securities Act of 1933. C.C.H., 1 Federal Securities Law Reporter ¶ 205-13 (1970). The registration statement or prospectus may include brief descriptions of the indenture provisions. C.C.H., 1 Federal Securities Law Reporter ¶ 207 (1970).
To sell publicly corporate debt securities under the Trust Indenture Act and the Securities Act of 1933, the securities must be registered and the indenture under which the securities are sold must "qualify." 15 U.S.C. §§ 77iii, 77jjj. The purpose of the registration statement and prospectus is to prevent fraud by fully and fairly disclosing the nature and finances of the company to investors who contemplate investing in the company. Thus, the conflict between the indenture and the prospectus can be resolved on the basis of the two instruments' purposes. It is the indenture which spells out the debenture agreement; the prospectus, in this case, merely summarized it. Furthermore, the prospectus itself resolves any conflict between it and the indenture. At pages 19-23 of the prospectus, the terms of the indenture are summarized. It provides in part:
The Debentures offered hereby are to be issued under an indenture to be dated as of February 1, 1969, between the company and United States Trust Company . . .. The statements under the captions are brief summaries of certain provisions of the Indenture. Wherever particular provisions are referred to, such provisions are incorporated by reference as part of the statement made and the statement is qualified in its entirety by such reference.
By inadvertence or oversight certain rights of non-superior creditors were stated in the prospectus to exist which do not exist. The prospectus, however, cannot create these rights, for that is not its purpose. Further, the prospectus informed prospective debenture purchasers that they were buying less than they actually received. The purpose of the prospectus, to prevent fraud, was certainly not frustrated where purchasers received more than that for which they bargained. Further, any conflict must be resolved by reference to the indenture, incorporated by reference into the prospectus by the prospectus' own terms.
There remains the problem of what was meant by "money borrowed"? The debentures are subordinate to "indebtedness for money borrowed," which includes "any amounts in respect of rental or purchase obligations under any lease of real or personal properties." Discon Corp., Indenture at 13, 15. "Borrow" is defined by Webster as "to receive temporarily from another, implying or expressing the intention either of returning the thing received or giving its equivalent to the lender." Webster's New Third Int'l. Dictionary, Unabridged (1967). "Money borrowed," therefore cannot be defined to include money owed for goods purchased, except where the indenture has included the same within its definition of indebtedness (amounts due under rental or lease *845 contracts of personalty or realty). It cannot be determined from the record before the Court which, if any, of the creditors would be superior to the debentures within the terms of the indenture. Apparently not all creditors may claim a superior position. However, it is clear that in view of the subordination agreement, the unsecured creditors may not be treated on a parity one with the other, for it would not be in the "best interests of creditors." Thereupon, it is
Ordered and adjudged that the petition for review be and the same is hereby granted, and the order of the Referee which confirmed the plan of arrangement be and the same is hereby set aside, and the proceeding is remanded to the Referee for proceedings not inconsistent with this order.
Done and ordered at Miami, Florida, this 12 day of March, 1971.
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UNITED STATES of America, Plaintiff-Appellee,
v.
SIGMA INTERNATIONAL, INC., d.b.a. Sigma U.S.A., Inc.; Charles Sternisha, et al., Defendants-
Appellants.
No. 97-2618.
United States Court of Appeals,
Eleventh Circuit.
May 24, 2001.
Appeals from the United States District Court for the Middle District of Florida (No. 95-00089-CR-T-24C);
Susan C. Bucklew, Judge.
Before TJOFLAT, BIRCH and BRIGHT*, Circuit Judges.
PER CURIAM:
In light of our opinion on rehearing in United States v. Sigma, 244 F.3d 841 (11th Cir.2001), the
panel's prior opinion, United States v. Sigma, 196 F.3d 1314 (11th Cir.1999), is hereby VACATED.
*
Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
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687 P.2d 470 (1984)
FARMERS INSURANCE CO., and Mid-Century Insurance Co., its subsidiary, Plaintiffs-Appellees,
v.
Patrice PLUNKETT, Defendant-Appellant.
No. 82CA0058.
Colorado Court of Appeals, Div. I.
February 16, 1984.
Rehearing Denied April 5, 1984.
Certiorari Denied September 4, 1984.
*471 Rector, Retherford, Mullen & Johnson, Neil C. Bruce, Colorado Springs, for plaintiffs-appellees
James R. True, Aspen, for defendant-appellant.
METZGER, Judge.
Plaintiffs, Farmers Insurance Company and its subsidiary, Mid-Century Insurance Company, sought a declaratory judgment with respect to the "non-owned automobile" exclusion of their auto insurance policy issued to Anthony Tailleur as it applied to his use of an automobile owned by Patrice Plunkett, appellant. The trial court granted summary judgment in favor of the insurance companies. We affirm.
The parties agree that the facts giving rise to the court's order are essentially undisputed.
On February 23, 1980, Anthony Tailleur was driving Plunkett's automobile when he was involved in an accident severely damaging the vehicle. Tailleur's use of the automobile was with Plunkett's consent, but he did not use or maintain this automobile on a regular basis, since he owned his own vehicle. Plunkett was not in the vehicle at the time of the accident.
Since December 1979, Plunkett and Tailleur, though unmarried, had been living together. They resided, together with Tailleur's brother, in a small house. Living expenses were shared three ways, and Tailleur and Plunkett claimed no residence other than this home.
The trial court found that although their relationship was not a marital one, nor were they related by consanguinity or affinity, Plunkett and Tailleur were "residing together." The court, therefore, applied the exclusion in Tailleur's insurance policy and held there was no coverage.
Plunkett contends that the trial court erred in granting the insurance company's motion for summary judgment finding that *472 under Tailleur's insurance policy the "non-owned automobile" exclusion applied, thereby precluding payment for damage to her automobile.
I.
Plunkett first asserts that the definition of "non-owned automobile" in Tailleur's insurance policy is ambiguous, and, thus, summary judgment was improperly granted. We disagree.
The policy provided property damage coverage to Tailleur when he, with the owner's permission, was driving a "non-owned automobile." Non-owned automobile is defined in the policy as:
"an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute vehicle."
Plunkett contends that the term "residents of the same household" is ambiguous and should be construed to imply "relatives who are residents of the same household," citing Urtado v. Allstate Insurance Co., 187 Colo. 24, 528 P.2d 222 (1974). In that case, however, the insurance policy defined "non-owned automobile" as one "not owned by the named insured or any relative" (emphasis added), unlike the insurance policy provisions in question here.
The determination of the existence of an ambiguity is a question of law for the trial court, People v. Johnson, 618 P.2d 262 (Colo.1980), and the court must examine the insurance policy as a whole in making this determination. See Beeson v. State Automobile & Casualty Underwriters, 32 Colo.App. 62, 508 P.2d 402 (1973); see also Coxen v. Western Empire Life Insurance Co., 168 Colo. 444, 452 P.2d 16 (1969). The trial court specifically found that the insurance policy was unambiguous and, thus, concluded that coverage did not extend to Plunkett's vehicle, since it was owned by a "resident of the same household" as Tailleur. We agree with that determination.
II.
Nevertheless, since the undisputed facts showed that she and Tailleur were not married or otherwise related, Plunkett contends that the trial court erred in its determination that she and Tailleur were "residents of the same household" for purposes of the insurance policy's provisions. We decline to adopt this interpretation.
The term "residents of the same household" was defined by this court in Iowa National Mutual Insurance Co. v. Boatright, 33 Colo.App. 124, 516 P.2d 439 (1973), and four factors were determined to be relevant:
"[1] The subjective or declared intent of the individual ... [2] the formality or informality of the relationship between the individual and the members of the household ... [3] the existence of another place of lodging by the alleged resident... and [4] the relative permanence or transient nature of the individual's residence in the household ...."
Here, the undisputed facts indicate that Plunkett voluntarily moved into the home rented by Tailleur and his brother, and entered into a personal relationship with Tailleur. While the relationship between Plunkett and Tailleur was not marital, nor were they related by consanguinity or affinity, it is indisputable that their relationship was not informal and involved some degree of commitment between them. Plunkett paid one-third of all the bills for the household and contributed to its day-to-day maintenance. Neither Tailleur nor Plunkett had another place of lodging. The totality of these circumstances demonstrates that the nature of Plunkett's residence in the household was of a relatively permanent and non-transient nature.
Thus, applying the standard set out in Iowa National Mutual Insurance Co. v. Boatright, supra, we determine that the trial court ruled correctly in concluding that Plunkett was a resident of the same household as Tailleur. See Dairyland Insurance Co. v. Beekman, 118 Ariz. 294, 576 P.2d 153 (App.1978); see also Comment, Defining "Relative," "Member of the Household," "Member of the Family" or "Resident" Within the Meaning of *473 Homeowner's and Automobile Liability Policies, 26 Drake L.Rev. 824 (1976-77).
III.
Plunkett's final argument is that there remain genuine issues as to material facts, particularly those of residency and household. Since the evidence was undisputed and uncontradictory, there was no genuine issue as to any material fact and summary judgment was an appropriate remedy. Edwards v. Price, 191 Colo. 46, 550 P.2d 856 (1976), appeal dismissed, 429 U.S. 1056, 97 S.Ct. 778, 50 L.Ed.2d 773 (1977).
Judgment affirmed.
PIERCE and BERMAN, JJ., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUTHER LOCKLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:09-cr-00033-FL-2; 7:12-cv-00074-FL)
Submitted: January 13, 2015 Decided: January 26, 2015
Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas Reston Wilson, GREENE & WILSON, PA, New Bern, North
Carolina, for Appellant. Jennifer P. May-Parker, Ethan A.
Ontjes, Assistant United States Attorneys, Yvonne Victoria
Watford-McKinney, Seth Morgan Wood, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Locklear appeals the district court’s order
dismissing his 28 U.S.C. § 2255 (2012) motion. We have reviewed
the record and conclude that the district court properly
dismissed the motion as untimely. Locklear’s claims on appeal
are squarely foreclosed by our recent decision in Whiteside v.
United States, __ F.3d __, 2014 WL 7245453 (4th Cir. Dec. 19,
2014) (en banc), and we therefore affirm the district court’s
judgment. United States v. Locklear, Nos. 7:09-cr-00033-FL-2;
7:12-cv-00074-FL (E.D.N.C. Jan. 28, 2014). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
2
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726 So.2d 37 (1998)
STATE of Louisiana
v.
Marcus JACKSON.
No. 98-KO-1454.
Supreme Court of Louisiana.
October 16, 1998.
Denied.
JOHNSON, J., not on panel.
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121 B.R. 875 (1990)
In re Larry Darell REID, Sr., SS# XXX-XX-XXXX, and Tenesa De-Lynn Reid, SS# XXX-XX-XXXX, Debtors.
Larry Darell REID, Sr. and Tenesa De-Lynn Reid, Movants,
v.
ITT FINANCIAL SERVICES, Respondent.
Bankruptcy No. 7-90-02391 M R.
United States Bankruptcy Court, D. New Mexico.
November 16, 1990.
Hal Greig, Van Soelen, Greig, Gutierriz & Richards, Clovis, N.M., for debtors.
Rose M.R. Little, Albuquerque, N.M., for ITT Financial Services.
MEMORANDUM OPINION
MARK B. McFEELEY, Chief Judge.
This matter came before the Court on the debtor's motion to avoid the lien of ITT Financial Services on certain items. At issue is whether the items fall within 11 U.S.C. § 522(f)(2)(A) which provides for avoidance of a lien on household goods, household furnishings, and jewelry. Having considered the briefs, applicable case law, and being otherwise fully informed and advised, the Court finds that the items involved are household goods, furnishings or jewelry under § 522(f)(2)(A) and the liens will be avoided.
FACTS
The debtors filed a chapter 7 petition on August 3, 1990. As of the date of filing, ITT Financial Services (ITT) held a lien on certain items which were listed as nonpurchase money security on the Disclosure Statement, Note and Security Agreement. Debtor's Exh. A. The items are:
3 telephones,
girl's weight set,
TV,
video camera,
VCR,
gold chain,
lawn mower,
*876
TRS computer and disc software,
answering machine.
The debtors seek to avoid the security interest of ITT on these items pursuant to 11 U.S.C. § 522(f)(2)(A)[1]. The debtors allege that the items are all household furnishings, household goods, or jewelry, and are held for the household use of the debtor or family members. ITT agrees that the girl's weight set, the lawn mower, the answering machine, and one telephone are household goods and that its lien may be avoided as to these items. As to the remaining items, ITT disputes that they are household goods subject to lien avoidance. The parties agree that there are no issues of material fact and have asked the Court to determine whether the lien can be avoided on the basis of these stipulated facts and the parties' briefs.
DISCUSSION
To determine whether a lien on a particular item may be avoided, it is first necessary to determine whether the item is exempt. Unless a state has "opted out" of the federal exemption scheme, a debtor may choose to claim either state or federal exemptions. 11 U.S.C. § 522(b). Once the choice is made, § 522(f)(2)(A) comes into play and liens on items enumerated in that subsection may be avoided to the extent allowed under the exemption statute. 11 U.S.C. § 522(f). Although state law (if the state exemption statute is chosen) controls what is exempt, federal law determines the availability of the lien avoidance provision. Aetna Finance Co. v. Leonard, 866 F.2d 335, 336 (10th Cir.1989). For example, a state exemption statute may include a motor vehicle but § 522(f)(2)(A) does not include motor vehicles. Thus, a lien on a motor vehicle may not be avoided. In re Martinez, 22 B.R. 7 (Bankr.N.M.1982). A lien on an item listed as exempt in the state exemption statute may be avoided provided it is among the items listed in § 522(f)(2).
Exemption statutes may state specific dollar amount limits on categories of exempt items, e.g., jewelry up to $2,500. N.M.S.A.1978 § 42-10-2 (1990 Supp.). With such a statute, a lien may be avoided to the extent that the items are exempt under applicable law, so that a lien on jewelry which has a value over $2,500 may only be avoided as to $2,500 in value. The New Mexico exemption statute provides:
Personal property other than money in the amount of five hundred dollars ($500), tools of the trade in the amount of fifteen hundred dollars ($1,500), one motor vehicle in the amount of four thousand dollars ($4,000), jewelry in the amount of twenty-five hundred dollars ($2,500), clothing, furniture, books, medical-health equipment . . . is exempt from receivers or trustees in bankruptcy or other insolvency proceedings. . . . Property exempted shall be valued at the market value of used chattels.
N.M.S.A.1978 § 42-10-2 (1990 Supp.). The Reids chose the New Mexico exemption statute. The statute does not set a dollar limit on furniture and therefore, a lien on furniture may be avoided regardless of amount provided that the furniture falls within § 522(f)(2). The debtors' schedules list as exempt the items at issue here under household goods and wearing apparel. There was no value stated for the gold chain alone. Schedule B-4. The Disclosure Statement, Note and Security Agreement lists the value of the chain at $500. There were no objections to the debtors' exemptions.
The legislative history of § 522 is helpful in determining Congress' intent as to just what constitutes "household goods." It states:
*877 In construing § 522(d)(2) and § 522(f)(2)(A) the court must also consider the background leading to the enactment of those sections and the purposes thereof. Prior to the enactment of the 1978 Bankruptcy Code consumers [sic] lenders would take a nonpossessory, nonpurchase money security interest in household goods, furnishings and appliances essential to the Debtor's ability to maintain his household. The inherent value of most of such collateral was quite often of little importance, for as a practical matter not much more than "garage sale" prices could be obtained for such used chattels on liquidation by the secured party. Nevertheless, the cost and inconvenience of replacement by the Debtor could be considerable to the Debtor, if in fact the secured party were to repossess or foreclose. Accordingly, when the Debtor filed a bankruptcy petition the secured party often used the threat of repossession, rarely carried out, to extract more than he would be able to get if he did a foreclosure or repossession. Section 522(f)(2)(A) was enacted to prevent such a secured creditor from exerting undue financial pressure based on chattels that had limited intrinsic value, but were essential to the Debtor.
In re Vale, 110 B.R. 396, 404 (Bankr.N.D. Ind.1989) (citations omitted). Congress was concerned about "the threat of repossession of household goods of little resale value and generally high replacement costs used by creditors to coerce payment on their consumer loans." In re Eveland, 87 B.R. 117, 120 (Bankr.E.D.Cal.1988). Although providing no guidance on specific items, there is a strong Congressional policy favoring the avoidance of nonpurchasemoney security interests in household goods, furnishings and appliances essential to maintain the debtor's household. H.Rep. No. 595, 95th Cong., 1st Sess. 126-27 (1977), reprinted in U.S.Code & Admin. News 1978, p. 5787. Thus, the courts are left to determine what specific items are essential to the debtor's "fresh start."
Courts have used various tests in their determination of what constitutes "household goods" for the purposes of lien avoidance. In In re Lucas, 77 B.R. 242 (9th Cir.B.A.P.1987), the court stated that the courts should examine the standard of living for each debtor to determine if the household goods in question were necessary or simply a luxury. This Court does not believe that such an inquiry is necessary. If a determination of what constitutes household goods are to be determined by the debtor's standard of living, there will be a different standard for each debtor coming before the court. Such an examination is not only unfair but is also an inefficient use of judicial resources.
Creditors have urged courts to adopt the restrictive Federal Trade Commission (FTC) definition of household goods. FTC states that it is an unfair trade practice for a creditor to take a nonpossessory, non-purchase money security interest in household goods. The FTC definition of household goods states:
Household goods. Clothing, furniture, appliances, one radio and one television, linens, china crockery, kitchenware, and personal effects (including wedding rings) of the consumer and his or her dependents, provided that the following are not included within the scope of the term "household goods": (1) Works of art; (2) Electronic entertainment equipment (except one television and one radio); (3) items acquired as antiques; and (4) jewelry (except wedding rings).
16 C.F.R. § 444.1(i). Although the purpose of the FTC ruling and § 522(f)(2)(A) may be the same, that of limiting creditors' reach into households, courts have rejected adopting the FTC definition of household goods because it is too restrictive. See, e.g., In re Barrick, 95 B.R. 310, 312 (Bankr.M.D.Pa. 1989); In Matter of Smith, 57 B.R. 330, 331 (Bankr.N.D.Ga.1986).
For the most part, courts have wound their way through the household goods maze on a case-by-case basis and thus it is difficult to find any discernible standard in the case law. In the case at bar, although acknowledging that court decisions on these issues are changing towards a more liberal interpretation, ITT urges a strict interpretation of household goods, citing In *878 re Ruppe, 3 B.R. 60 (Bankr.Colo.1980), In re Boozer, 4 B.R. 524 (Bankr.N.D.Ga.1980), and this Court's decisions in In re McPherson, 18 B.R. 240 (Bankr.N.M.1982) and In re Martinez, 22 B.R. 7 (Bankr.N.M.1982). This Court and other courts agree that a strict interpretation of what constitutes household goods is necessary when deciding whether to avoid liens on items that appear to be outside the ambit of § 522(f)(2)(A), such as motor vehicles and firearms. In re Stroman, 78 B.R. 785 (Bankr.S.C.1987) (magnum pistol and semiautomatic gun); In re Weaver, 78 B.R. 135 (Bankr.N.D.Tex.1987) (firearms and minibikes); In re Yokley, 42 B.R. 574 (Bankr.N. D.Ala.1984) (motor vehicle); In re Wright, 34 B.R. 643 (Bankr.W.D.Ky.1983) (motor vehicle); In re Martinez, 22 B.R. 7 (Bankr. N.M.1982) (motor vehicle); In re McPherson, 18 B.R. 240 (Bankr.N.M.1982) (firearm). However, when deciding whether to avoid liens on items that may or may not be household goods, the statute should be liberally construed in favor of the debtor. In re Barker, 768 F.2d 191 (7th Cir.1985); In re Courtney, 89 B.R. 15 (Bankr.W.D.Tx. 1988).
With the passage of time, courts are finding that more and more items fall within § 522(f)(2)(A). "In our complex society, items that were once regarded as luxuries in past years, particularly home entertainment items such as televisions and stereo systems, are now commonplace and are viewed as necessities to the well-being of the family unit." In re Caruthers, 87 B.R. 723, 728 (Bankr.N.D.Ga.1988). As a result, the list of items considered to be household goods has taken on a more liberal character. In a 1980 case, In re Ruppe, the court did not avoid a lien on a movie camera and two movie projectors, finding that they were not necessary to the functioning of a household and that they were, in fact, recreational items. 3 B.R. 60 (Bankr.Colo. 1980). Since Ruppe, many courts have held that liens on recreational and entertainment items may be avoided. One court has stated that a judicial construction of household goods that only included items indispensable to bare existence would be too restrictive. "Items which, while not being luxuries, are convenient or useful to a reasonable existence must also be included." In re Boyer, 63 B.R. 153, 159 (Bankr. E.D.Mo.1986) (liens avoided on lawn mower, two gold chains, gold earrings, diamond earrings, gold diamond ring, camera, clock/radio telephones, TV and stereo system).
In In re Vaughn, a lien on a computer which was attached to a television was avoided. 64 B.R. 213 (Bankr.S.D.Ind.1986). ITT attempts to distinguish Vaughn on the basis that the computer was attached to the TV, thereby making it part of the TV. In Vaughn, the computer was attached to the TV so that the children of the household could play computer games. Thus, the computer was used primarily for recreation and entertainment.
In In re Courtney, 89 B.R. 15 (Bankr.W. D.Tex.1988), the court avoided liens on a camera, bow and arrows, golf clubs and a bicycle. The court adopted the definition of household goods which states that:
household goods and furnishings includes any personal property which is normally used by and found in the residence of a debtor and his dependents or at or upon the curtilage of said residence. This definition includes personal property that enables the debtor and dependents to live in usual convenient and comfortable manner or that has entertainment or recreational value even though it is used away from the residence or its curtilage.
Id., 89 B.R. at 16.
Adopting similar language to define the parameters of what constitutes household goods, the court in In re Griffiths, 86 B.R. 639 (Bankr.W.D.Wash.1988), avoided liens on golf clubs, a pingpong table, fishing rod and reels, a picnic table, drills, saw, telephone, answering machine, sewing machine, and a camera.
Therefore, this Court concludes that "household goods" should include what a person might expect to find in today's average household. Televisions, VCRs, video cameras, telephones, home computers, and software would then fall within this definition *879 of household goods for the purpose of lien avoidance. ITT's lien will be avoided as to those items and since the gold chain is jewelry which is clearly listed in § 522(f)(2)(A), the lien on that may avoided as well.
This memorandum opinion constitutes the Court's findings of fact and conclusions of law. Bankruptcy Rule 7052. An appropriate order shall enter.
ORDER
This matter came before the Court on the debtor's motion to avoid the liens of ITT Financial Services. For reasons stated in the memorandum opinion entered in connection herewith,
IT IS ORDERED that the debtor's motion to avoid the liens of ITT Financial Services on certain household goods of the debtors is granted.
NOTES
[1] 11 U.S.C. § 522(f)(2)(A) provides:
(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
(2) a nonpossessory, nonpurchase-money security interest in any
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor.
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504 F.2d 854
UNITED STATES of America, Plaintiff-Appellee,v.Nathan George DINITZ, Defendant-Appellant.
No. 73-2109.
United States Court of Appeals, Fifth Circuit.
Nov. 27, 1974.
Fletcher N. Baldwin, Jr., Univ. of Fla., Gainesville, Fla. (Court-appointed), for defendant-appellant.
William H. Stafford, Jr., U.S. Atty., Robert L. Crongeyer, Jr., Nick P. Geeker, Asst. U.S. Attys., Pensacola, Fla., for plaintiff-appellee.
Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
PER CURIAM:
1
The court, en banc, affirms the panel opinion holding that a defendant's motion for mistrial does not remove the bar to reprosecution when the formal mistrial motion by defendant is solely caused by an abuse of judicial discretion, which though not intended to avoid an acquittal, is so damaging to the defendant that he cannot proceed with his case and submit it to the jury then empaneled.1 The judge's action, taken without defendant's provocation or consent, had the effect of depriving him of effective assistance of counsel thereby making further conduct of the trial impossible.
2
In order for a defendant's motion for a mistrial to constitute a bar to a later plea of double jeopardy, some choice to proceed or start over must remain with the defendant at the time his motion is made. The dicta from United States v. Jorn, which is the foundation of the dissent,2 does not encompass the extraordinary circumstances of the present case, in which judicial error alone, rather than defendant's exercise of any option to stop or go forward, took away his 'valued right to have his trial completed by a particular tribunal.'
3
GEWIN, BELL, THORNBERRY, COLEMAN, AINSWORTH, RONEY and GEE, Circuit Judges (dissenting):
4
We respectfully dissent for the reasons stated in the dissent filed to the panel opinion. United States v. Dinitz, 5 Cir. 1974, 492 F.2d 53, 61 (dissenting opinion).
5
We also note that the panel opinion in United States v. Walden, 4 Cir. 1971, 448 F.2d 925, relied upon in the original majority opinion in this case, was superseded on rehearing en banc. United States v. Walden, 4 Cir. 1972, 458 F.2d 36 (affirming district court on double jeopardy question by an equally divided court).
1
492 F.2d 53 (5th Cir. 1974)
2
'If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error.' 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971)
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-15-00405-CV
David GILLESPIE and Michael O’Brien,
Appellants
v.
A.L. HERNDEN and Frederick R. Zlotucha,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding 1
BEFORE JUSTICE ANGELINI, JUSTICE BARNARD, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, the trial court’s order is AFFIRMED.
We ORDER that appellees A.L. Hernden and Frederick R. Zlotucha may recover their costs of
court for this appeal from appellants David Gillespie and Michael O’Brien.
SIGNED December 14, 2016.
_____________________________
Patricia O. Alvarez, Justice
1
The Honorable Larry Noll is the presiding judge of the 408th Judicial District Court. The Honorable Cathleen M.
Stryker, presiding judge of the 224th Judicial District Court, signed the final judgment.
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820 F.2d 1220Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Ronald MCGILL, Petitioner-Appellant,v.William D. LEEKE, Respondent-Appellee.
No. 87-7540.
United States Court of Appeals, Fourth Circuit.
Submitted April 30, 1987.Decided June 4, 1987.
Before MURNAGHAN, CHAPMAN and WILKINSON, Circuit Judges.
Ronald McGill, appellant pro se.
Donald John Zelenka, Chief Deputy Attorney General, Office of the Attorney General of South Carolina, for appellee.
PER CURIAM:
1
A review of the record and the district court's opinion accepting the magistrate's recommendation discloses that an appeal from its order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 would be without merit. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court. McGill v. Leeke, C/A No. 3:86-2501-6K (D.S.C., Feb. 17, 1987).
2
DISMISSED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD LAMONT JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CR-98-182, CA-00-837-3)
Submitted: October 18, 2001 Decided: October 26, 2001
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Richard Lamont Johnson, Appellant Pro Se. N. George Metcalf,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Lamont Johnson seeks to appeal the district court’s
order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
2001). We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See United States v. Johnson, Nos. CR-98-182;
CA-00-837-3 (E.D. Va. May 16, 2001). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2
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10-2083-cv
Greenberg v. Aetna Life Insurance Company
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of May, two thousand eleven.
5
6 PRESENT: WILFRED FEINBERG,
7 ROGER J. MINER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 HAROLD L. GREENBERG,
14
15 Plaintiff-Appellant,
16
17 -v.- 10-2083-cv
18
19 AETNA LIFE INSURANCE COMPANY, THE SUNGUARD DATA SYSTEMS,
20 INC. LONG TERM DISABILITY PLAN,
21
22 Defendants-Appellees.
23
24
25 FOR APPELLANT: ABA HEIMAN, Fusco, Brandenstein & Rada,
26 P.C., Woodbury, NY.
27
28 FOR APPELLEES: MICHAEL H. BERNSTEIN, Sedgwick, Detert,
29 Moran & Arnold LLP, New York, NY.
30
31 Appeal from the United States District Court for the
32 Southern District of New York (Pauley, J.).
33
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2 AND DECREED that the judgment of the district court is
3 AFFIRMED.
4 Plaintiff-appellant Harold L. Greenberg appeals from a
5 judgment entered May 7, 2010, in the United States District
6 Court for the Southern District of New York (Pauley, J.) in
7 favor of Defendants-appellees Aetna Life Insurance Company
8 (“Aetna”) and Sunguard Data Systems, Inc. Long Term
9 Disability Plan (collectively, “Defendants”). Greenberg
10 argues that the district court erred in finding that
11 substantial evidence supported Aetna’s conclusion that his
12 disability was caused by a pre-existing condition. He
13 further argues that the court erred in determining that
14 Pennsylvania law controls the interpretation and
15 administration of the long-term disability policy (the
16 “policy”). We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19 Where a benefit plan governed by the Employee
20 Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-
21 1461, gives the plan’s administrator discretionary authority
22 to determine eligibility under the plan or to construe the
2
1 plan’s terms, the administrator’s decisions are reviewed for
2 abuse of discretion. See Firestone Tire & Rubber Co. v.
3 Bruch, 489 U.S. 101, 115 (1989). “[A] court may not
4 overturn the administrator’s denial of benefits unless its
5 actions are found to be arbitrary and capricious, meaning
6 ‘without reason, unsupported by substantial evidence or
7 erroneous as a matter of law.’” McCauley v. First Unum Life
8 Ins. Co., 551 F.3d 126, 132 (2d Cir. 2008) (quoting Pagan v.
9 NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)).
10 Here, the district court determined that the
11 administrator enjoyed discretionary authority to determine
12 eligibility under and to interpret the terms of the plan.
13 Since it found Aetna’s decisions to have been supported by
14 substantial evidence, it granted judgment in favor of
15 Defendants. On de novo review, we likewise determine that
16 Aetna’s decisions were supported by substantial evidence.
17 Accordingly, we affirm the district court’s judgment.
18 “We review the district court’s choice of law de novo.”
19 Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc.,
20 414 F.3d 325, 331 (2d Cir. 2005). Greenberg argues that the
21 policy should be deemed “delivered” in New York and thus New
22 York law should govern to the extent not preempted by ERISA.
3
1 However, the policy on its face elects Pennsylvania law as
2 controlling its interpretation and stipulates that it is to
3 be delivered in Pennsylvania. Greenberg has not provided
4 any evidence to the contrary. Accordingly, as permitted
5 under Pennsylvania law, and pursuant to the policy’s terms,
6 he is permanently excluded from eligibility.
7 We have considered Greenberg’s remaining contentions
8 and find them to be without merit.
9 For the foregoing reasons, the judgment of the district
10 court is hereby AFFIRMED.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
4
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760 F.2d 255
Agostinov.U.S.
84-1544
United States Court of Appeals,Third Circuit.
3/4/85
E.D.Pa.,
Kelly, J.
AFFIRMED
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29 F.3d 863
63 USLW 2080, 18 Employee Benefits Cas. 1687
Gustav A. ADAMS; Andrew F. Dopkins; and Robert Malcolm,Deceased, By His Executrix Lillian Malcolmv.TRUSTEES OF THE NEW JERSEY BREWERY EMPLOYEES' PENSION TRUSTFUND; Local Union 843, International Brotherhood ofTeamsters; Falstaff Brewing Corporation; and Joseph M.Byrne Co., A Corporation of the State of New Jersey (NewarkNew Jersey District Civil No. 76-01931)Bruno MICHOTA; Walter Lemke; Abraham Gellman; LawrenceBalback; Bolly Bonk; William Dunne; Bernard Kosciewicz;Siegfried Milchram; Howard Sears; Stephen Gardzinski;Harry Wolf; Bruno Dziedzic; William Riedel; SalvatoreGuarneri; Samuel Monto; Fermin Loma; Vincent Sadowski;Stanley Kiesnowski; Anthony Bellina; Frank Pavolonis;William Roesch; Michael Duda; Edward Strittmatter;Frederick Hubner; Peter Rudy; Harold Wanthouse; JosephDuffy; Joseph Coyle; Grace Green, Widow of Harold Green, Deceasedv.ANHEUSER-BUSCH, INCORPORATED, (Budweiser); P. Ballantine &Sons; Pabst Brewing Company; Falstaff Brewing Corporation;Investors Funding Corporation; Rheingold Breweries, Inc.;The New Jersey Brewery Employees' Pension Trust Fund;Henry T. Hamilton; Herbert V. Johnson; Frank A.Jackiewicz; Frank Sullivan; Herbert Heilmann, Jr.; HenryTchorzewski; Benno Merker; and Arthur Spinello, asTrustees of the New Jersey Brewery Employees' Pension TrustFund (Newark New Jersey District Civil No. 77-02543) PensionBenefit Guaranty Corporation ("PBGC"), Appellant.
No. 93-5480.
United States Court of Appeals,Third Circuit.
Argued March 1, 1994.Decided July 15, 1994.
Patricia A. Scott-Clayton (argued), Bernard P. Klein, Pension Ben. Guar. Corp., Washington, DC, Susan C. Cassell, Office of U.S. Atty., Newark, NJ, for appellant, Pension Ben. Guar. Corp.
Rosemary Alito (argued), Edward F. Ryan, Carpenter, Bennett & Morrissey, Newark, NJ, for appellee, Anheuser-Busch, Inc. (Budweiser).
John J. Rizzo (argued), Stryker, Tams & Dill, Newark, NJ, for appellee, Pabst Brewing Co.
Before: STAPLETON and SCIRICA, Circuit Judges and SMITH, District Judge.*
OPINION OF THE COURT
SCIRICA, Circuit Judge.
1
After a four and one-half year hiatus, the Pension Benefit Guaranty Corporation attempted to reopen its case against Pabst Brewing Co. and Anheuser-Busch, Inc. for unfunded benefits in a terminated pension fund. The district court dismissed the case for lack of prosecution under Federal Rule of Civil Procedure 41(b) and denied as untimely the PBGC's motion for reconsideration.
2
The PBGC appeals contending the district court abused its discretion in dismissing the case. The PBGC also claims its motion for reconsideration was timely, and that due process required notice and a hearing before dismissal.
3
We hold the district court correctly found the motion for reconsideration was untimely, and that the PBGC received adequate notice. Nonetheless, without considering the evidence the PBGC proffered with its motion for reconsideration, we find the district court should not have dismissed the case with prejudice. We agree that the PBGC's behavior was negligent and inexcusable, but think dismissal was too harsh a sanction. Therefore we will remand for reinstatement of the case and consideration of lesser sanctions.
I.
4
In 1956, Pabst, Anheuser-Busch, and other breweries entered into an agreement with the New Jersey Brewers' Association, the Brewery Workers Joint Local Executive Board of New Jersey, and certain of its local unions to establish the "New Jersey Brewery Workers Trust Fund" (the Fund). Each brewery negotiated periodic collective bargaining agreements specifying the amount it would contribute to the Fund, which was to provide brewery workers' retirement pensions.
5
As employment in the brewing industry declined in the late 1960s, the Fund's unfunded liabilities mounted, exceeding $50 million by 1970. To protect its solvency and reduce the actuarial deficit, the Fund's trustees adopted a Partial Termination Clause, limiting benefits for participants whose employers had withdrawn from the fund.
6
In 1973, Pabst and Anheuser-Busch (collectively, the Breweries) withdrew from the Fund and set up separate funds for their employees. Other breweries also withdrew throughout the 1970's. In 1978 the Fund was terminated and the PBGC was appointed statutory trustee under Title IV of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1342(b) & (c) (1988).
7
Coinciding with the termination, 29 employees (the Employees) sued Pabst, Anheuser-Busch, other breweries, the Fund, its trustees, and the PBGC, for benefits under the Labor Management Relations Act of 1947, 29 U.S.C. Secs. 185 & 186 (1988 & Supp. IV 1992), and ERISA, 29 U.S.C. Secs. 1132, 1302, 1303 (1988 & Supp. IV 1992). In 1979, the PBGC was substituted for the Trustees, and the Employees added a fifth count solely against the PBGC, seeking a declaration that the PBGC was required to guarantee them certain nonforfeitable rights to pension benefits. A class was certified for this count.
8
The PBGC filed cross-claims against Pabst, Anheuser-Busch, and Rheingold (another brewery), seeking employer indemnification under 29 U.S.C. Sec. 1364 (1988 & Supp. IV 1992) for benefits the PBGC might be required to pay employees under 29 U.S.C. Sec. 1322.1 The PBGC filed a similar claim against Chock-Full O'Nuts Corp., parent company of Rheingold.2 The Breweries filed cross-claims against the PBGC seeking to recover or offset their liability to the PBGC because of payments into both the Fund and the individual corporate plans.
9
All parties filed summary judgment motions. On September 22, 1980, the district court granted summary judgment to the Employees against the PBGC on the fifth count, holding that the Partial Termination Clause was invalid; and granted summary judgment against the Employees on all their other claims. Michota v. Anheuser-Busch, Inc., 526 F.Supp. 299 (D.N.J.1980). Thus, all causes of action by the Employees against the Breweries were disposed of, but the Employees' claims against the PBGC continued, as did the cross-claims between the PBGC and the Breweries.
10
On appeal, we reversed the district court only on the summary judgment for the Employees on the fifth count, holding the Partial Termination Clause was not void. We remanded, however, for determination of whether the Employees received proper notification of the clause. Adams v. New Jersey Brewery Employees' Pension Trust Fund, 670 F.2d 387 (3d Cir.1982).
11
After discovery on the notice issue, the PBGC and the Employees renewed their summary judgment motions, and the Breweries filed for summary judgment to dismiss the PBGC cross-claims for statutory employer indemnification. Because ERISA was not enacted until 1975, the Breweries claimed that statutory employer liability was not meant to apply to employers who had withdrawn from the Trust Fund in 1973, and in the alternative, that such liability would violate the Due Process Clause.
12
On October 7, 1983, after the case was transferred to another judge, the district court granted the Employees' summary judgment motion on the fifth count, holding they did not receive adequate notice of the Partial Termination Clause. The court denied Pabst and Anheuser-Busch's summary judgment motions, ruling that liability was appropriate under 29 U.S.C. Sec. 1364 and the Due Process Clause. The court certified the issues for interlocutory review.
13
On a second appeal, we reversed the grant of summary judgment for the Employees, holding they received adequate constructive notice of the Partial Termination Clause as a matter of law. Michota v. Anheuser-Busch, Inc., 755 F.2d 330, 332 (3d Cir.1985). We declined to address the certified questions, and remanded "for a final determination of the employers' liability on the PBGC's cross-claim for any remaining unfunded portions of the Brewery Pension Fund." Id. at 336.
14
On October 1, 1986, the district court granted the PBGC's motion to dismiss the Breweries' cross-claims against the PBGC for reduction of their statutory liability based on their payments to the Employees through their corporate pension plans. The court also denied the Breweries' motion for reconsideration of their due process objection to liability under 29 U.S.C. Sec. 1364.
15
In January, 1987, after the case was transferred to yet another judge, the Employees again raised their claims for guaranteed benefits from the PBGC. The court held we had ruled with finality that the Partial Termination Clause defeated those claims, and granted summary judgment to the PBGC against the Employees. Michota v. Anheuser-Busch, Inc., C.A. No. 77-2543 (D.N.J. March 17, 1988) (Memorandum Opinion and Order). We affirmed by judgment order, October 4, 1988. Adams v. Trustees of the New Jersey Brewery Employees' Pension Trust Fund, No. 88-5305 (3d Cir. Oct. 4, 1988) (judgment order).
16
Following our affirmance, the only claims remaining were the PBGC's cross-claims against the Breweries for employer indemnification. From October, 1988 to March, 1993 there was no contact among the parties and the court, although the PBGC engaged in limited, informal discovery with third parties on these claims. In December, 1992, the PBGC contacted the district court and was informed by the clerk that the case had been administratively closed. On March 19, 1993, the PBGC moved to reopen the case, seeking summary judgment against the Breweries. Without explaining the four and one-half year break in pursuing its claims, the PBGC contended the only remaining issue in the case was the amount of the Breweries' liability and described how that liability should be calculated. In response, Anheuser-Busch argued that the case should be dismissed under Federal Rule of Civil Procedure 41(b), noting that the court could do so sua sponte and discussing the relevant factors for dismissal. Pabst included in its letter response a form for an order denying the PBGC's motion to reopen and dismissing the case with prejudice. Neither party, however, formally moved for dismissal with prejudice.
17
In reply, the PBGC argued that the court should regard the administrative closure of the case as a clerical mistake and reopen under Rule 60(a). The PBGC responded to some of the Breweries' assertions--whether the PBGC was inappropriately seeking relief under Civil Procedure Rule 60(b) (relief from a final judgment) and whether the case had in fact already been dismissed--but did not explain its delay in prosecution, contending that a dismissal under Rule 41(b) would be inappropriate because it had not failed to comply with any procedural rules or court orders, and that the defendants had not moved for dismissal.
18
On June 7, 1993, the district court dismissed the PBGC's claims under Rule 41(b). Noting that the PBGC had given no explanation for its dilatory conduct, the court said that for equitable reasons it would sua sponte treat the defendants' motions and responses as a 41(b) motion to dismiss for lack of prosecution. Acknowledging that a dismissal for lack of prosecution was a harsh sanction because it operates as an adjudication on the merits, the court evaluated the case in light of the six factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), and found all factors pointed toward dismissal except the factor evaluating the merits of the PBGC's case.
19
On June 24, 1993, the PBGC filed a motion under Federal Rule of Civil Procedure 59(e) for alteration or amendment of the dismissal order. The PBGC submitted an explanation of the delay in prosecution, describing how the case was shifted from one overloaded attorney to another, and documented a small amount of "informal discovery" during the hiatus, consisting of a few letters between the PBGC and consultants or fund managers. The court denied the motion as untimely, noting that Rule 59(e)'s ten-day time limit was jurisdictional. The court also stated that had the motion been timely, it would have affirmed its prior holding, having found nothing in the proffered arguments and documents giving cause for reconsideration.
20
The PBGC filed a timely notice of appeal.
II.
21
The district court had jurisdiction of the PBGC's ERISA employer liability claim against the Breweries under 29 U.S.C. Sec. 1303(e)(3). The court's dismissal of that claim and its denial of the motion for reconsideration are final orders. We have jurisdiction under 28 U.S.C. Sec. 1291.
22
The motion for reconsideration was denied because a jurisdictional time limit had expired. We exercise "plenary review of the district court's choice and interpretation of applicable tolling principles," Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991), and of jurisdictional decisions by the district court, Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir.1992). The question of whether due process required formal notice and a hearing before dismissal is also subject to plenary review. Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1370 (3d Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 253, 112 L.Ed.2d 211 (1990).
23
We review the dismissal for failure to prosecute under Rule 41(b) for abuse of discretion. "The question, of course, is not whether [the Supreme] Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing." National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam). While we defer to the discretion of the district court, we are mindful that dismissal with prejudice is only appropriate in limited circumstances: "Because [an order of dismissal] deprives a party of its day in court, our precedent requires that we carefully review each such case to ascertain whether the district court abused its discretion in applying such an extreme sanction," Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir.1984), and in this review "doubts should be resolved in favor of reaching a decision on the merits," id. at 878.
III.
24
Rule 59(e) requires a motion for reconsideration to "be served not later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). Rule 6(a) provides that in computing any time period under the Rules of Civil Procedure, the day of the event from which the designated period of time begins to run shall not be included, nor shall intermediate Saturdays, Sundays, or legal holidays, if the period is less than eleven days. Rule 6(b) provides that the time limit of Rule 59(e) may not be judicially extended; as we have explained, the ten-day period "is jurisdictional, and cannot be extended in the discretion of the district court." Welch v. Folsom, 925 F.2d 666, 669 (3d Cir.1991) (internal quotations omitted).
25
The district court's order denying the PBGC's motion to reopen the case and dismissing it with prejudice was dated May 25, 1993, and docketed June 7. The PBGC served a "Motion to Alter or Amend the Judgment" under Rule 59(e), with accompanying affidavits and documents, on June 24. Not counting weekend days, ten days after June 7 would be June 21. Therefore, the June 24 service by PBGC was not timely.3
26
The PBGC argues that Rule 6(e) extended the deadline by three days, rendering its motion timely. Rule 6(e) provides:
27
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
28
Fed.R.Civ.P. 6(e) (emphasis added). The PBGC claims that since they were "served" the judgment of the court by mail, the rule applies to extend the period.
29
The Rule 6(e) extension is inapplicable here. Rule 59(e) gives the right to move for reconsideration "not later than 10 days after entry of the judgment." (Emphasis added.) Thus, the period for bringing the 59(e) motion begins with "entry of judgment." Rule 6(e) only extends time limits that begin with "service of a notice or other paper upon the party." See, e.g., Fed.R.Civ.P. 12(a)(1)(A) (requiring defendant's service of answer "within 20 days after being served with the summons and complaint").
30
This facial reading is explicitly supported by our caselaw. In Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858 (3d Cir.1970), a party claimed the time limit for his Rule 59(e) motion should be extended by three days under Rule 6(e). He asserted "that since the Clerk notified the parties by mail of entry of the judgment, he should have had three additional days within which to serve the motion." Id. at 860. We stated, "it appears that filing of a motion such as defendant's [59(e) motion] is not conditioned upon notice of entry of judgment," and concluded 6(e) did not apply. Id.
IV.
31
The PBGC argues in the alternative that the dismissal violates due process, or constitutes an abuse of discretion, because there was no formal notice or hearing. We find the PBGC had adequate notice of the dismissal, and forewent its opportunities to respond.
32
Link v. Wabash R.R., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962) gives guidance on notice and hearings prior to 41(b) dismissals. Link sued Wabash Railroad in U.S. district court in 1954 after his car collided with a Wabash train. After three years he prevailed against Wabash's motion for judgment on the pleadings, and a trial date was set but then vacated by the court. In 1959, after three years of little activity, the court initiated a hearing to show cause why it should not dismiss. Deciding to retain the case, the court set a trial date for July, 1959, which it later vacated at the defendant's request. More interrogatories were exchanged, and a pre-trial conference was set for October, 1960. On the day of the conference, Link's lawyer called and said he was in another city doing other work, and asked that the conference be rescheduled. The court declined, and dismissed the case with prejudice for failure of plaintiff's counsel to appear and failure to prosecute as an exercise of its inherent power. Id. at 627-29, 82 S.Ct. at 1387-88.
33
The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b). The Court further held that "the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing" does not "necessarily render such a dismissal void." Id. at 632, 82 S.Ct. at 1389. It explained:
34
It is true, of course, that the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.
35
Id. (internal quotations and citations omitted). The Court also stated that the availability of relief from judgment for mistake, excusable neglect, etc., under Rule 60(b), which the plaintiff had not sought, "renders the lack of prior notice of less consequence." Id.
36
The circumstances in Link showing the plaintiff should have known it risked dismissal included three years of inactivity, a motion from the court to show cause why the case should not be dismissed after three years of inactivity, the plaintiff's failure to answer interrogatories, and, on the day of dismissal, the plaintiff's attorney's missing a pretrial conference. Id. at 629 n. 2, 634-35 n. 11, 82 S.Ct. at 1388 n. 2, 1391 n. 11. Under these circumstances, an attorney should be on notice that dismissal may ensue, so that advance notice is not required, especially where Rule 60(b) provides an "escape hatch" by allowing the reopening of cases inadvisedly closed. Id. at 632, 82 S.Ct. at 1390.
37
While the harshness of dismissal with prejudice generally counsels giving formal notice in advance, the PBGC had adequate opportunity to defend itself against dismissal without such formal notice. Before dismissal, the PBGC did not engage in problematic behavior like the Link plaintiff: there had been no previous hearing to show cause why the court should not dismiss, the PBGC had met discovery requests, and it did not miss any court appointments. But other factors clearly warned the PBGC it risked dismissal: Anheuser-Busch's brief argued for 41(b) dismissal and went through the 6-factor Poulis analysis, and Pabst included a draft of a dismissal order in its response to the motion to reopen. Even if these factors alone did not put the PBGC on notice, the balance is tipped by the availability of the Rule 59(e) motion. After the court's order of dismissal, the PBGC had the opportunity to present its explanation of the delay in a motion to alter or amend the judgment of dismissal under Rule 59(e). Like the plaintiff in Link, the PBGC did not avail itself of this escape hatch.4 Having foregone this opportunity, the PBGC cannot claim it was denied due process or that the court abused its discretion because of a lack of notice and hearing.
38
Notwithstanding, the PBGC argues that we should extend it the right to notice and a hearing before dismissal under Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir.1987). We disagree. In Dunbar, observing no evidence implicating the client in the attorney's dilatory behavior and bad faith, we expressed concern over the trend of dismissal of legal actions for dereliction of duty by counsel. To protect litigants, we held that any motion to dismiss by court or counsel "based on an apparent default on the part of litigant's counsel" be pleaded with particularity and with supporting material, and that "where the papers demonstrate reasonable grounds for dismissal on that basis the court shall direct the clerk of the court to mail notice directly to the litigant of the time and place of a hearing on any such motion." Id. at 129. This is to "put the client on notice of possible jeopardy to his or her legal interests by counsel's conduct at a time when the client can take appropriate action and when the Poulis balance has not been irretrievably struck in favor of the moving party." Id.
39
The PBGC argues that without Dunbar protection, parties with in-house counsel, such as the government, will unfairly suffer dismissal without the formal warning given to parties with outside counsel. However, Dunbar specifically establishes special procedural protection for parties with outside counsel in order to benefit the client that had no part in, and no knowledge of, its attorney's delinquent behavior. Where a client had or should have had independent knowledge of the delinquency that was the grounds for dismissal, we have held notice and hearing are not required. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1147 (3d Cir.1990) (no Dunbar proceedings required where plaintiff had been personally sanctioned for misconduct and had issued certifications contesting dismissal); Curtis T. Bedwell & Sons, Inc. v. International Fidelity Ins. Co., 843 F.2d 683, 693 (3d Cir.1988) (no Dunbar proceedings required where plaintiff present at hearings regarding attorney's misconduct and possible sanctions). Without formal notice and hearing, a responsible client might be unaware that its attorney is risking dismissal; a party with in-house counsel, however, is deemed to be aware of how its case is proceeding, and of circumstances indicating dismissal may be imminent. The PBGC, represented by in-house counsel, is held to have known whatever its agents, including its attorneys, knew. It merits no further notice than that required in Link.
40
Because the PBGC has already had (and failed to use) adequate opportunity to present its excuses on the delay, we will not consider the affidavits and documents it submitted with its motion for reconsideration. We do not, however, accept Pabst's contention that we should also refuse to consider the legal arguments against dismissal the PBGC now raises on appeal. While "[w]e can consider the record only as it existed at the time the court below made the order dismissing the action," Jaconski v. Avisun Corp., 359 F.2d 931, 936 n. 11 (3d Cir.1966), the party is not required to test its legal arguments before the district court in a Rule 59(e) motion before making them on appeal. We have discretion to hear not only arguments but also claims raised for the first time on appeal, Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975).V.
41
In evaluating whether the district court abused its discretion in dismissing with prejudice, our review is "guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings." Poulis, 747 F.2d at 868. The six factors are:
42
(1) the extent of the party's personal responsibility;
43
(2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery;5
44
(3) a history of dilatoriness;
45
(4) whether the conduct of the party or the attorney was willful or in bad faith;
46
(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and
47
(6) the meritoriousness of the claim or defense.
48
Poulis, 747 F.2d at 868.
49
The district court thoroughly considered all of the six Poulis categories, and found all except meritoriousness indicated dismissal. We likewise will consider each factor in turn.
1. The party's personal responsibility
50
a.
51
Although a party may justly suffer dismissal "because of his counsel's unexcused conduct," Link, 370 U.S. at 633, 82 S.Ct. at 1390, we "have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault." Carter v. Albert Einstein Medical Ctr., 804 F.2d 805, 807 (3d Cir.1986); see also Burns v. MacMeekin, 722 F.2d 32, 35 (3d Cir.1983) (holding district court must consider alternative remedy to dismissal, because "[t]he brunt of the order [to dismiss] falls on plaintiffs, who have been deprived of the opportunity to litigate their case on the merits, when the only culpable party may be their attorney."). Thus, in determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.
52
b.
53
The district court held the PBGC personally responsible, explaining, "[t]his is not the sympathetic situation of an innocent client suffering the sanction of dismissal due to dilatory counsel whom it hired to represent it." Michota v. Anheuser-Busch, Inc., C.A. No. 77-2543, slip op. at 7 (D.N.J. May 25, 1993). We agree. The PBGC is personally responsible for delay by its in-house counsel.
54
We do not accept the PBGC's argument that because it administers a pension guarantee program in which employers participate, we should consider the employers' lack of personal responsibility for the delay. The PBGC contends that because those employers pay premiums into a common fund that backs pension funds, they will have to pay higher premiums to cover the loss if the PBGC cannot prosecute this case. The focus on a party's personal responsibility, the PBGC argues, is to protect innocent parties such as these participants in ERISA's Title IV program, so for their sake dismissal is inappropriate.
55
While it may be true that the PBGC's loss would eventually be passed on to parties who were not responsible, the personal responsibility criterion does not aim to protect all innocent victims from dismissal of a case. If it did, a vast range of parties could claim immunity from dismissal to prevent suffering to third parties. Carter and Dunbar aim to protect clients who try their best to litigate cases properly, but are thwarted by their attorneys' delinquent behavior. Where, as here, a party is personally responsible for failure to prosecute, the effect of dismissal on third parties cannot be dispositive.
2. Prejudice to adversary
56
a.
57
Evidence of prejudice to an adversary "would bear substantial weight in support of a dismissal or default judgment." Scarborough, 747 F.2d at 876. Examples of prejudice include "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Id. Prejudice also includes deprivation of information through non-cooperation with discovery, and costs expended obtaining court orders to force compliance with discovery. Bedwell, 843 F.2d at 693. Prejudice need not be "irremediable harm that could not be alleviated by [the] court's reopening discovery and postponing trial." Id. (internal quotation marks omitted) (alteration in original).
58
b.
59
The district court held that the defendants would be prejudiced by the amount of interest they would have to pay on their liability, which would exceed the liability itself, and by the difficulty of mounting a defense so long after the events at issue. We cannot agree.
60
Interest paid on money owed does not amount to prejudice, but rather represents the value of possession of the money by the debtor. It is the amount the Breweries should have made on their money if they had kept it prudently invested during these 17 years. If the resolution of this case is that they had no right to the money in the first place, neither do they have right to the value they have gained from it while the case was litigated.
61
The argument that the delay will prejudice the Breweries' defense, though not meritless, is ultimately unconvincing. The PBGC claims the determination of the employer's statutory liability for unfunded portions of the Brewery Pension Fund involves computing, as of the date of plan termination, the value of the plan's assets and the participants' guaranteed benefits, and determining Anheuser-Busch's and Pabst's proportionate share of liability for the unfunded benefits. See supra note 1. The PBGC asserts that if there are any genuine issues of material fact, the evidence will be computational or documentary.
62
The Breweries contend that each side will call expert witnesses and fact witnesses, including the Fund's actuary, to testify on the status and investments of the Fund in the 1970s before and after termination. They would also reargue their claims regarding the applicability of ERISA to employers who withdrew from a fund before ERISA's enactment.
63
We do not see much if any prejudice resulting from the delay. The Breweries do not challenge the PBGC's characterization of the computation process, which is a records-based determination. Expert witnesses would only comment on evidence; there should be no problem with dimmed memories. Similarly, fact witnesses would rely primarily on records to describe the fund's history. The Breweries have claimed neither that any records have been lost, nor that their discovery is incomplete. Even if trial had taken place in 1988 after our last ruling, the case still would have turned on events over a decade old--the Breweries' withdrawal in 1973 and the Fund's termination in 1977. Finally, we note that the Breweries' principal contentions are statutory and constitutional arguments on whether ERISA properly applies to them, and these could be made at any time.
64
It is possible the Breweries may suffer some prejudice from this delay, in the form of additional costs or lost information. But there has been no testimony to this effect, and such prejudice, if it exists, would be minor and appropriately addressed by more modest sanctions than dismissal.
3. History of dilatoriness
65
a.
66
Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders. Poulis, 747 F.2d at 868; Comdyne I, 908 F.2d at 1148. On the other hand, "sloppiness" while an attorney is moving offices that results in untimely response to two court orders and a late retention of local counsel does not amount to "a pattern of deliberate dilatory action," Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 343 (3d Cir.1982), and "inexcusable" lateness of one or two weeks in meeting four court deadlines is not a "default comparable to Poulis," where the plaintiff was non-responsive and tardy, Scarborough, 747 F.2d at 875.
67
Furthermore, a party's problematic acts must be evaluated in light of its behavior over the life of the case. In Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146 (3d Cir.1968), we overturned a dismissal for want of prosecution, despite Dyotherm's failure to inform the court of its activities as requested, its late and unprepared appearance at trial without its key witness, and its failure to produce an adequate excuse for the witness's absence. While acknowledging the inexcusable behavior of plaintiff's counsel, we noted, among other mitigating factors, that there was no indication of dilatory tactics during the first two and a half years in which the case was litigated. Id. at 149.
68
b.
69
The district court found that "[t]he history of dilatoriness also favors dismissal," and said it was at a loss to understand why the PBGC had stopped prosecution so abruptly or why it began again after so long. Michota, slip op. at 8. We agree the failure to prosecute for more than four years amounts to a history of dilatoriness.
70
Four and one-half years is a significant and inexcusable delay, and could constitute grounds for dismissal under Rule 41(b):
71
"[F]ailure to prosecute" under the Rule 41(b) does not mean that the plaintiff must have taken any positive steps to delay the trial or prevent it from being reached by operation of the regular machinery of the court. It is quite sufficient if he does nothing, knowing that until something is done there will be no trial.
72
Bendix Aviation Corp. v. Glass, 32 F.R.D. 375, 377 (E.D.Pa.1962), aff'd 314 F.2d 944 (3d Cir.) (per curiam), cert. denied, 375 U.S. 817, 84 S.Ct. 51, 11 L.Ed.2d 52 (1963).
73
This history of dilatoriness weighs toward, but does not mandate, dismissal. The delay here is not on the scale of that in Bendix, where the case lay dormant for 11 years, id. at 376, nor was there dilatoriness as in Bedwell, where the plaintiff repeatedly and strategically delayed and disobeyed court orders. Bedwell, 843 F.2d 683. There has been no dispute that the PBGC has met all deadlines and court dates during the course of the litigation. Under Dyotherm the four and one-half year delay is somewhat mitigated by the PBGC's ten years of responsible litigation.
74
4. Was the attorney's conduct willful or in bad faith?
75
a.
76
In evaluating a dismissal, this court looks for "the type of willful or contumacious behavior which was characterized as 'flagrant bad faith,' in National Hockey League, [427 U.S. at 643, 96 S.Ct. at 2781]." Scarborough, 747 F.2d at 875; see also Poulis, 747 F.2d at 866. In National Hockey League, the district court dismissed the case after 17 months in which the plaintiffs failed to answer crucial interrogatories despite numerous extensions, and broke promises and commitments to the court. The Supreme Court approved the dismissal as a proper response to such behavior.
77
Willfulness involves intentional or self-serving behavior. In Donnelly, when the plaintiff's case was transferred from Texas to New Jersey, he was tardy meeting court orders to obtain New Jersey counsel. We held the plaintiff's difficulties did not amount to an inability to comply, but rather, "[a]t best ... show[ed] a failure to move with the dispatch which the notice and order to show cause required, and provide[d] no basis for exculpation of plaintiff's Texas counsel on the grounds of inability." Donnelly, 677 F.2d at 342. Noting, however, that the Texas lawyer had timely attempted to locate local counsel, we also held, "no willfulness is mirrored in the record." Id. at 343 (internal quotation omitted). Thus, tardiness not excused for inability is not necessarily willful. See also Scarborough, 747 F.2d at 875 (where attorney filed all required papers, albeit some tardily, behavior was not willful or contumacious); c.f. Bedwell, 843 F.2d at 695 (where plaintiff and attorney did not comply with court orders and discovery requests without plausible excuses and delay appeared to be calculated, district court properly found conduct willful, not merely negligent).
78
b.
79
The district court considered that it had received no explanation from the PBGC regarding the four and one-half year hiatus, no suggestion that intervening events had prevented the PBGC from prosecuting the case, and no hint that the PBGC had done anything except some limited discovery since the Court of Appeals ruled in 1988. It inferred from this "at least an absence of a good faith effort to prosecute and a willful failure to act." Michota, slip op. at 8. The PBGC argues that the court was improperly presuming willfulness or contumacity.
80
While there may have been an absence of a good faith effort to prosecute, this does not necessarily amount to willfulness or bad faith as this court has defined it. The behavior here was different from the contumacious behavior in National Hockey League or Bedwell, where there were repeated and self-serving instances of flouting court authority and professional irresponsibility. Rather, there is a resemblance to Donnelly, as circumstances here also "show a failure to move with the dispatch" reasonably expected of a party prosecuting a case. Donnelly, 677 F.2d at 342. We will not call the PBGC's delay willful as there is no indication it was strategic or self-serving. Rather, it is a prime example of inexcusable negligent behavior.
5. Alternative sanctions
81
a.
82
Before dismissing a case with prejudice, a district court should consider alternative sanctions. In Titus v. Mercedes Benz, 695 F.2d 746, 748-49 (3d Cir.1982), the district court dismissed the case after the plaintiffs repeatedly failed to prepare a draft pretrial order. On appeal, we stated, "district courts should be reluctant to deprive a plaintiff of the right to have his claim adjudicated on the merits," id. at 749, and held the district court was required to consider sanctions other than dismissal, id. at 750, and record its findings, id. at 751. If further findings supported a dismissal with prejudice, the court could reinstate the dismissal with prejudice. Id.; id. at 754 (Fullam, J., concurring). In other cases, we have remanded for consideration of alternative sanctions with a bar on dismissal. See, e.g., Donnelly, 677 F.2d at 344; Carter, 804 F.2d at 808.
83
b.
84
The district court considered and rejected alternative sanctions. While it noted it could charge the PBGC for the costs the Breweries incurred because of the delay, the court reasoned this would not compensate for the prejudice to the Breweries or the harm to the efficient administration of justice.
85
It has not been shown, however, that the Breweries' case has been seriously compromised. Rather, we have found the delay caused no significant prejudice to the defendants. Among other sanctions, favorable treatment for defendants on evidentiary issues affected by the delay, if there are any, and payment of attorneys' fees and/or costs to the Breweries related to the delay might be appropriate here. And while we join the district court's condemnation of the PBGC's irresponsibility toward the judicial process, we believe lesser sanctions will chasten effectively without the extreme result of "depriv[ing] the plaintiff of the right to have [its] claim adjudicated on the merits." Titus, 695 F.2d at 749.
6. Meritoriousness of the claim
86
a.
87
The standard of meritoriousness when reviewing a dismissal is moderate:
88
[W]e do not purport to use summary judgment standards. A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense.
89
Poulis, 747 F.2d at 869-870. Where a plaintiff makes out a prima facie case, but the defendant raises a prima facie defense, the factor may not weigh in favor of the plaintiff. Id. at 870.
90
b.
91
The district court found the facial meritoriousness of the PBGC's claims to be the one Poulis factor weighing against dismissal. Pabst concedes this facial meritoriousness, although both Pabst and Anheuser-Busch reiterate their statutory and constitutional arguments against the applicability of ERISA.
92
We agree with the district court that the PBGC's claims are facially meritorious. The district court rejected the Breweries' statutory and constitutional defenses to liability. We then denied a request for interlocutory review, and denied the Breweries' motion for reconsideration and granted the PBGC summary judgment on the Breweries' cross-claims to reduce their ERISA liability. We remanded the case "for a final determination of the employers' liability on PBGC's cross-claim for any remaining unfunded portions of the Brewery Pension Fund." Michota v. Anheuser-Busch, Inc., 755 F.2d at 336. Although Pabst argues that the district court can undo its previous decision on retroactive liability, the Breweries do not cite any new rulings on the issue.6 Because of the facial strength of the PBGC's case, the meritoriousness factor weighs heavily against dismissal.7VI.
93
Having considered the evidence before the district court when it dismissed this action with prejudice, we find the sum of the six Poulis factors weighs against dismissal with prejudice, so that dismissal did not constitute the sound exercise of discretion. In a close case, "doubts should be resolved in favor of reaching a decision on the merits." Scarborough, 747 F.2d at 878. While we agree with the able and experienced district judge that the PBGC bears personal responsibility for the delay in prosecution, and also that there was a history of dilatoriness, these are outweighed by the absence of significant prejudice to the adversary and lack of willfulness or bad faith on the part of the PBGC, by the availability of alternative sanctions, and by the meritoriousness of the PBGC's claim.8 We share the frustration of the district court at the PBGC's irresponsible conduct, and acknowledge the court's thoughtful consideration of the many factors relevant to the issue of dismissal. However, "[d]ismissal must be a sanction of last, not first, resort," Poulis, 747 F.2d at 869, and in this case lesser sanctions should be applied.
94
We will vacate the order of the district court and remand for reinstatement of the PBGC's claims and for the imposition of sanctions other than dismissal as appropriate.
95
Each side to bear its own costs.
*
The Honorable D. Brooks Smith, United States District Judge for the Western District of Pennsylvania, sitting by designation
1
Subject to a number of qualifications, 29 U.S.C. Sec. 1322(a) (Supp. IV 1992) provides that the PBGC will "guarantee ... the payment of all nonforfeitable benefits ... under a single-employer plan" in the event of its termination. "Single-employer plans" include plans such as this one to which a number of employers contribute, each pursuant to an individual collective bargaining agreement with its respective employee organization. See 29 U.S.C. Sec. 1301(a)(3) & (b)(2) (1988)
Section 1364, "Liability of employers on termination of plan maintained by more than one employer," assigns liability for unfunded benefits of such single-employer plans to all employers maintaining it or who made contributions to it in any of the five years preceding its termination. It also provides that the PBGC will determine the liability of each employer and gives the formula for so doing. The formula essentially divides the plan's unfunded benefits among all employers in proportion to what each employer should have contributed during the plan's last five years of operation. Id. Sec. 1364 (1988 & Supp. IV 1992).
2
Claims between the PBGC and Rheingold and Chock-Full O'Nuts were later dismissed by stipulation
3
The district court apparently considered the date the PBGC's 59(e) motion was docketed, June 28, rather than the date of service, June 24, as the relevant event to end the 59(e) period. However, the error was harmless since, as shown above, June 24 also falls outside the time limit
4
The motion filed outside of the jurisdictional time limit was as good as no motion at all. There is irony in a party's seeking to explain why its delay in prosecuting a case is excusable rather than dilatory, but missing the deadline for making the explanation
5
In evaluating Rule 41(b) dismissals, we look more generally for "[p]rejudice to the other party." Scarborough, 747 F.2d at 876
6
Rather, they refer to general language from Henglein v. Informal Plan, 974 F.2d 391 (3d Cir.1992), and dicta from Concrete Pipe and Prods., Inc. v. Construction Laborers Pension Trust, --- U.S. ----, ----, 113 S.Ct. 2264, 2293, 124 L.Ed.2d 539 (1993) (O'Connor, J., concurring), on retroactive application of ERISA. Neither authority resolves this issue, or even applies directly
7
The parties argue at length over whether, in light of two pre-Poulis cases, the strength of the PBGC's case controls the decision regarding dismissal. In Glo Co. v. Murchison & Co., 397 F.2d 928 (3d Cir.1967) (per curiam), aff'd on rehrg., 397 F.2d 929 (3d Cir.1968) (per curiam), cert. denied, 393 U.S. 939, 89 S.Ct. 290, 21 L.Ed.2d 276 (1968), an action commenced in 1954 was dismissed after an order to show cause in 1963. Although we noted that a dismissal "certainly seems justified by the inaction of counsel in failing to move for trial after repeated warnings," we reversed because "there appears to be no dispute that an amount of money is owed to plaintiff under the contracts in suit." Id. at 929. Glo Co. was followed in Spering v. Texas Butadiene & Chem. Co., 434 F.2d 677 (3d Cir.1970), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 95 (1971), where an attorney sued a former client in 1965 for payment for services rendered between 1954 and 1964. The defendants denied his claims except for services rendered after February, 1964. Id. at 678. After a year of litigation, the plaintiff did virtually nothing in the case for three years, and the court dismissed in 1969. Id. at 680. We found there had been no abuse of discretion and affirmed the dismissal, but also ruled that, because there was no dispute over the defendant's debt to plaintiff for services in 1964, the plaintiff should be allowed to pursue that claim. We then noted, without elaboration, that the "unusual nature of the circumstances" of Glo Co. was not present in Spering. Id. at 681
Glo Co. and Spering do not purport to set out a rule, and at any rate the facts in this case are different in a critical way. Here, unlike in Glo Co. and Spering, the defendants have not admitted liability. We also note that those cases pre-date Poulis, and should not be taken to indicate that a court need not consider all six Poulis factors. We do, however, endorse the general principle of Glo Co. and Spering, that where a party contesting dismissal has a strong case, the meritoriousness factor weighs more heavily in its favor.
The PBGC makes an additional argument regarding meritoriousness, that "absent truly extraordinary circumstances, no meritorious statutory claim of the federal government should be dismissed without prior warning." Brief for Appellants at 42. It points to Fed.R.Civ.P. 55(e), which bars default judgments against the United States "unless the claimant establishes a claim or right to relief by evidence satisfactory to the court", and the doctrine that the government is not subject to the defense of laches, see, e.g., United States v. Gera, 409 F.2d 117, 120 (3d Cir.1969).
We cannot agree. As Pabst points out, the reference to Rule 55(e) proves too much. Rule 55 governs default judgments, and specifically excuses the government from its application under certain circumstances. By contrast, Rule 41(b) specifies no exceptions for the government. It is hard to avoid the implication that there is, then, no such exception to Rule 41(b).
Furthermore, this court and others have found Rule 41(b) applicable to government agencies in the past. For example, in Livera v. First Nat'l State Bank, 879 F.2d 1186, 1193-94 (3d Cir.), cert. denied, 493 U.S. 937, 110 S.Ct. 332, 107 L.Ed.2d 322 (1989), we remanded a 41(b) dismissal of a claim by the Small Business Administration to the district court because the court had not applied the Poulis factors, and instructed the district court to determine whether dismissal was appropriate. Id. at 1196; see also, e.g., Securities & Exchange Comm'n v. Power Resources Corp., 495 F.2d 297, 298 (10th Cir.1974) (affirming district court dismissal under Rule 41(b) of S.E.C. action for failure to prosecute).
8
We have previously overturned a default judgment against a defendant on the same three grounds. In Gross v. Stereo Component Sys., Inc., 700 F.2d 120 (3d Cir.1983), we vacated the judgment "[b]ecause no prejudice accrued to the plaintiff, a potentially meritorious defense was available to the defendant, and defendant's conduct in failing to timely answer was not willful." Donnelly is also similar to the instant case: after finding neither willfulness by the attorney, prejudice to the adversary, nor personal responsibility on the part of the client with regard to the tardiness in finding local counsel, we ordered reinstatement of the case and consideration of lesser sanctions. Donnelly, 677 F.2d at 344
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2014 IL App (3d) 120580
Opinion filed June 4, 2014
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-12-0580
v. ) Circuit No. 95-CF-318-2
)
ANDRES M. ELKEN, ) Honorable Larry S. Vandersnick,
) Honorable Charles H. Stengel,
Defendant-Appellant. ) Judges, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
OPINION
¶1 Defendant, Andres M. Elken, appeals the Henry County circuit court’s dismissal of his
second-stage successive postconviction petition. Following the dismissal, defendant filed a
motion to reconsider on May 29, 2012. The trial court denied that motion.
¶2 Defendant alleges that the trial court erred in allowing appointed postconviction counsel
to withdraw at the second stage of the proceedings, where defendant was not given notice of
counsel's intent to withdraw and was denied the opportunity to be heard on the motion or the
dismissal of his petition.
¶3 We reverse and remand.
¶4 BACKGROUND
¶5 This case involves a rather tortured procedural process that involves two direct appeals
and successive postconviction petitions. We include only those facts necessary for an
understanding of the dismissal of defendant’s successive postconviction petition.
¶6 On November 7, 1995, defendant (along with five other codefendants) was charged by
information with controlled substance trafficking, unlawful possession of a controlled substance
with intent to deliver, and unlawful possession of a controlled substance. These charges
stemmed from the discovery of over 500,000 grams of cocaine, following a routine traffic stop
on Interstate 80. At trial, defendant moved to suppress the evidence found in the recreational
vehicle. He argued that he did not understand English to the point that he could knowingly and
voluntarily consent to the search, and he was unnecessarily detained for 40 minutes while the
officer waited for the canine unit to arrive. The trial court denied defendant’s motion to suppress
and the matter proceeded to a bench trial.
¶7 Following the trial, the trial court found defendant guilty of the charged offenses and
sentenced defendant to 110 years on the trafficking offense. The court also imposed a $63
million street value fine.
¶8 On direct appeal, defendant raised issues pertaining to the motion to suppress and the
sentence imposed. This court affirmed the conviction, remanded the matter for a new sentencing
hearing, and ordered the trial court to apply a $5-per-day presentence incarceration credit toward
the fine. See People v. Elken, 309 Ill. App. 3d 1092 (2000) (table) (unpublished order under
Supreme Court Rule 23).
2
¶9 On remand, the court resentenced defendant to 75 years' imprisonment, reordered the $63
million street value fine, and gave defendant a $1,660 presentence incarceration credit.
Defendant did not file a notice of appeal from this judgment.
¶ 10 While the direct appeal was pending, appellate counsel contemporaneously filed a
petition for relief from judgment, pursuant to section 2-1401 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2007)), and a postconviction petition on defendant’s
behalf. Those petitions alleged a violation of the Vienna Convention and that Trooper Blanks
gave perjured testimony when he stated he did not look for out-of-state license plates or Hispanic
drivers as indicators of drug trafficking activity. The State filed motions to dismiss on both
motions, which the trial court granted.
¶ 11 Defendant appealed the dismissals, arguing the same issues set forth in his petitions. This
court affirmed. See People v. Elken-Montoya, 329 Ill. App. 3d 1246 (2002) (table) (unpublished
order under Supreme Court Rule 23).
¶ 12 On May 4, 2006, defendant filed a pro se postconviction petition. He argued that "his
culpable negligence should be excused" because the same attorney who handled his direct appeal
also filed his first postconviction petition. Substantively, defendant alleged: (1) that he was not
advised of his rights under the Vienna Convention; (2) that Trooper Blanks committed perjury
during the preliminary hearing where he testified that 274 bricks containing over 1,000 pounds
of cocaine, where only 2.5 pounds of the substance had been tested prior to the hearing; (3) that
trial counsel was ineffective for stipulating to the lab report and chain of custody without
sufficiently consulting with defendant; and (4) that appellate counsel was ineffective for failing
to raise trial counsel's ineffectiveness.
¶ 13 On May 18, 2006, the trial court appointed E. Stockton as counsel for defendant.
3
¶ 14 On July 18, 2006, defendant filed a pro se motion, seeking leave to file the
postconviction petition and a supplement to the petition. In this motion, defendant alleged that
he had not raised the instant claims in his first postconviction petition because the same attorney
represented him on direct appeal and on his first petition. Defendant also raised an additional
substantive claim, alleging that the probable cause hearing was not held within 30 days of his
arrest.
¶ 15 On September 5, 2006, Stockton filed a motion for leave to file a successive
postconviction petition with an additional issue. Counsel copied defendant's pro se filing,
making the same allegations of cause and prejudice as an exception to the single postconviction
petition rule presented in the July 18 filing. On January 16, 2007, the State filed a motion to
dismiss defendant’s second petition and his additional issue.
¶ 16 On March 23, 2007, the circuit court, Judge Vandersnick presiding, held a hearing on
defendant's motion for leave to file. The court allowed defendant leave to file, finding the
petition was not frivolous insofar as defendant may have had a meritorious argument for
ineffective assistance of appellate counsel. Defendant was granted leave to file an amended
petition, and the State was accordingly granted time to respond. The trial court also found that
the State's motion to dismiss was premature and reserved.
¶ 17 Stockton subsequently withdrew. On April 4, 2007, the court appointed S. Clemens to
represent defendant. On April 16, 2007, defendant filed a pro se motion to supplement his
petition, claiming that the statute under which he was convicted was void as violative of the
single subject rule. On October 5, 2007, defendant filed a pro se petition for habeas corpus
relief based on the same alleged single subject violation raised in his supplement to the
postconviction petition. A docket entry on the chronological case summary shows that
4
defendant’s habeas corpus petition was denied on November 27, 2007, but stated that counsel
could amend the postconviction petition to include the issue.
¶ 18 On January 28, 2010, the trial court, Judge Stengel presiding, conducted a hearing on
defendant's pro se motion for new counsel, defendant's renewed pro se motion for new counsel,
defendant's second habeas corpus petition for immediate release, and defendant's pro se motion
regarding the unconstitutionality of Public Act 89-404 (eff. Aug. 20, 1995) (declared
unconstitutional by People v. Reedy, 186 Ill. 2d 1 (1999)). The trial court denied defendant's
motions for new counsel and found defendant's second habeas corpus petition was res judicata.
Attorney Clemens asked the court to defer ruling on defendant's motion regarding Public Act 89-
404 so that he could conduct additional research; though, he stated that he believed the Act did
not amend or deal with section 401.1 of the Illinois Controlled Substances Act (720 ILCS
570/401.1 (West 2012)), which defendant was sentenced under. Clemens also requested
additional time to focus his efforts on defendant's arguments regarding ineffective assistance of
appellate counsel. The trial court granted the continuance.
¶ 19 On May 8, 2012, the trial court held a hearing on defendant's second postconviction
petition and the pro se supplement thereto. Without any argument from the State on its reserved
motion to withdraw, Clemens informed the court that defendant's postconviction petition had no
merit. Clemens stated that while Public Act 89-404 was declared unconstitutional, it did not
amend nor deal with section 401.1 of the Illinois Controlled Substances Act (720 ILCS
570/401.1 (West 2012)) under which defendant was charged. He stated that both the perjury
claim and the alleged Vienna Convention violation were barred by res judicata. Clemens stated
that the issue relating to the stipulation of chain of custody had no merit. He also stated that the
allegation of ineffective assistance of defendant's counsel for failing to file a notice of appeal
5
following resentencing on remand was without merit. Clemens spoke with defendant's counsel
on remand, who told Clemens that defendant never requested that he appeal the matter. Clemens
also noted that one reason Judge Vandersnick allowed defendant leave to file a successive
postconviction petition was his claim that appellate counsel was ineffective for filing a
postconviction petition and a petition for relief under section 2-1401, while the direct appeal was
pending. Clemens opined that under Strickland v. Washington, 466 U.S. 668 (1984) and its
progeny, there was nothing to suggest that appellate counsel, who did all three of these things,
was ineffective. Finally, Clemens stated that defendant's desired attack against the public act
creating the Class X sentencing range also had no merit.
¶ 20 The record reveals that at no time before or after this colloquy with the court did Clemens
move to withdraw, either orally or via a written motion. Nor is there any evidence that Clemens
informed defendant of his intention to withdraw.
¶ 21 The trial court then dismissed defendant’s successive postconviction petition "based upon
arguments of defense counsel." The State did not renew its motion to dismiss or make any
arguments thereon. There was no mention of allowing Clemens to withdraw; the petition was
simply dismissed based upon his assertions. The trial court informed defendant he had the right
to appeal.
¶ 22 On May 29, 2012, defendant filed a motion to reconsider the orders allowing counsel to
withdraw and dismissing his successive postconviction petition. The court heard the motion on
July 9, 2012. Defendant stated that he had not known his attorney was going to move to
withdraw. Defendant further stated he had not been allowed to go to the prison library and he
had not had the opportunity to prepare "for things." He requested a 60-day continuance and
asked the court to order Clemens to turn over his case file so that he could raise additional issues.
6
¶ 23 The court denied defendant's request that Clemens turn over his file. The court further
denied defendant's motion to reconsider dismissal of the postconviction petition and the order
allowing counsel to withdraw.
¶ 24 This appeal followed.
¶ 25 ANALYSIS
¶ 26 Defendant contends that the trial court erred in allowing counsel to withdraw at the
second stage of postconviction proceedings when counsel had not provided defendant notice of
intent to withdraw, and in dismissing defendant’s postconviction petition based solely on
counsel's assertions in support of his motion to withdraw.
¶ 27 It is important to note at the outset the rather unorthodox procedure followed at the May
8, 2012, hearing on defendant's successive postconviction petition. Defendant's second
appointed counsel, S. Clemens, never actually filed a motion to withdraw, nor did he orally
request to withdraw on the record. A review of the transcript for this hearing also indicates that
the court never "allowed" counsel to withdraw, but it did dismiss the petition following the
hearing.
¶ 28 Under the provisions of the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1
(West 2012)), an indigent defendant, who has not been sentenced to death, is not automatically
entitled to appointment of counsel. The source of the right to counsel in a postconviction matter
is statutory rather than constitutional, and the Act does not provide for appointment of counsel
unless an indigent defendant's petition survives the first stage of postconviction proceedings.
People v. McNeal, 194 Ill. 2d 135, 142 (2000); 725 ILCS 5/122-2.1, 122-4 (West 2012). At the
first stage, the circuit court, within 90 days, must review the defendant's petition and
independently determine whether it is frivolous or patently without merit. People v. Johnson,
7
401 Ill. App. 3d 685 (2010). If the court determines the petition is without merit, the petition
must be dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2012). "It is only after a defendant's
petition has been found to set forth the gist of a meritorious claim, or the court fails to take any
action on the petition within 90 days of filing, that the process advances to second-stage
proceedings and counsel is appointed." (Emphasis in original.) People v. Greer, 212 Ill. 2d 192,
204 (2004); 725 ILCS 5/122-2.1, 122-4 (West 2012).
¶ 29 At the second stage of the postconviction process, as is the case here, the circuit court
must determine whether the petition and any accompanying documentation make a substantial
showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998).
Appointed counsel may seek leave to file an amended petition. People v. Blair, 215 Ill. 2d 427,
458 (2005); 725 ILCS 5/122-5 (West 2012). At the second stage, the State is required to either
answer the pleading or move to dismiss. People v. Morris, 335 Ill. App. 3d 70, 76 (2002). "In
determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in
accompanying affidavits are taken as true." People v. Orange, 195 Ill. 2d 437, 448 (2001). If no
constitutional violation is shown, the petition is dismissed. People v. Tate, 2012 IL 112214,
¶ 12. The denial of a postconviction petition without an evidentiary hearing is reviewed de novo.
People v. Marshall, 381 Ill. App. 3d 724, 730 (2008).
¶ 30 In this instance, where counsel's actions at the second stage of representation are called
into question, People v. Greer, 212 Ill. 2d 192 (2004), is instructive. In Greer, our supreme court
addressed the obligations of appointed postconviction counsel and the consequences thereof
pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Rule 651(c) requires that the
record in postconviction proceedings demonstrate that appointed counsel " 'has consulted with
petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional
8
rights, has examined the record of the proceedings at the trial, and has made any amendments to
the petitions filed pro se that are necessary for an adequate presentation of petitioner's
contentions.' " Greer, 212 Ill. 2d at 205 (quoting Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)).
"Fulfillment of the third obligation under Rule 651(c) does not require postconviction counsel to
advance frivolous or spurious claims on defendant's behalf. If amendments to a pro se
postconviction petition would only further a frivolous or patently nonmeritorious claim, they are
not 'necessary' within the meaning of the rule. Moreover, the mere filing of an amended petition
by counsel under such circumstances would appear to violate the proscriptions of Supreme Court
Rule 137 [Citation]." Id. Thus, an attorney, like Clemens in this case, who determines that
defendant's claims are meritless, cannot in good faith file an amended petition on behalf of
defendant. Id.
¶ 31 The Greer court's most relevant inquiry to the case at bar is as follows:
"What is defense counsel to do after he or she determines that
defendant's petition is frivolous? Is counsel to stand mute at all
subsequent proceedings? How can counsel, ethically, 'present the
petitioner's contentions' when counsel knows those contentions are
frivolous? Obviously, the answer is counsel cannot." (Emphasis
in original.) Id. at 206.
¶ 32 Here, Clemens' research led him to the conclusion that defendant's petition lacked merit
and defendant makes no allegation that Clemens failed to comply with Rule 651(c). However,
Clemens filed no motion to withdraw and gave no notice to defendant of his intent to withdraw.
He simply stood up at the hearing and stated that defendant's contentions had no merit. That is
the key distinction that warrants reversal.
9
¶ 33 In People v. Sherman, 101 Ill. App. 3d 1131 (1981), the defendant filed a postconviction
petition that the circuit court advanced to the second stage. Counsel was appointed to represent
him. Without notifying the defendant, counsel filed a motion to withdraw indicating that he was
unable to discover a basis for relief. Id. at 1132. Absent defendant's presence, the court heard
counsel's motion. Id. at 1132-33. Following counsel's arguments, the circuit court allowed the
State's oral motion to dismiss based upon counsel's assertions in his motion to withdraw. Id. at
1133.
¶ 34 This court found that counsel's failure to notify the defendant of his motion to withdraw
and the circuit court's failure to give the defendant an opportunity to respond effectively deprived
him of any representation at the hearing. Id. Defendant was entitled to adequate notice of
counsel's motion to withdraw and the State's motion to dismiss in order to allow the defendant an
opportunity to respond; this court accordingly remanded the matter for further proceedings. Id.
at 1134.
¶ 35 Defendant in this case was present for the hearing. As a layperson, he cannot be expected
to jump up at a hearing and voice his objections while his attorney is actively arguing against his
interests. We do acknowledge, however, that had Clemens filed a motion to withdraw prior to
the May 8 hearing, our analysis would change accordingly. Defendant did not allege that
Clemens failed to comply with Rule 651(c), and Clemens' actions are clearly acceptable, even
necessary, under Greer. Indeed, Clemens could not have filed an amended petition to advance
defendant's contentions if his research found them to be frivolous without contravening Rule
137.
¶ 36 Moreover, in Sherman and People v. Shortridge, 2012 IL App (4th) 100663, upon which
the defendant relied heavily, the respective courts stated that counsel unequivocally argued
10
against defendant's interests (Sherman, 101 Ill. App. 3d at 1133) and if appointed counsel finds
that a defendant's claims are frivolous, counsel's obligation is to seek to withdraw as counsel, not
to confess the State's motion to dismiss. Shortridge, 2012 IL App (4th) 100663, ¶¶ 13-14. If
counsel finds that defendant's contentions are frivolous or patently without merit at the second
stage, he cannot in good faith continue, so he must file a motion to withdraw. If he files a
motion to withdraw, he must give his reasons for doing so. He is then, in essence, “confessing”
that the defendant has no viable arguments and is, in essence, agreeing that the petition should be
dismissed. Our point is only that the confession is not necessarily wrong, but defendant should
be afforded the opportunity to prepare for such an attack on his petition and to make any
arguments in rebuttal. He was denied that opportunity here. The appropriate procedure under
these circumstances would be for appointed counsel to file a motion to withdraw, giving
defendant notice of the same. This allows defendant to prepare to argue against appointed
counsel's motion. It further obviates any opportunity for a defendant to argue that he was
blindsided by his appointed counsel's arguments.
¶ 37 Accordingly, this case is remanded to the circuit court of Henry County for further
proceedings on the defendant's second-stage postconviction petition.
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, the judgment of the circuit court of Henry County is reversed
and remanded.
¶ 40 Reversed and remanded.
11
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405 F.2d 423
Lafayette WOOD, Appellant,v.UNITED STATES of America, Appellee.
No. 22632.
United States Court of Appeals Ninth Circuit.
Dec. 30, 1968, Rehearing Denied Jan. 20, 1969.
Charles L. Kellar, Las Vegas, Nev., for appellant.
Joseph L. Ward, U.S. Atty., Robert S. Linnell, Asst. U.S. Atty., Las Vegas, Nev., for appellee.
Before MADDEN,* Judge of the United States Court of Claims, MERRILL and HUFSTEDLER, Circuit Judges.
J. WARREN MADDEN, Judge:
1
The appellant, hereinafter designated as the defendant, was convicted in the district court of violating Section 4742(a) Title 26, United States Code.1 The defendant has appealed. No question regarding the jurisdiction of the district court or this court is involved.
2
Evidence introduced by the Government at the trial supports the following recital of facts. On October 6, 1965, Sergeant McCarthy of the Las Vegas, Nevada Police Department introduced Federal Narcotics Agent Turnbou to a man named Booker who was apparently an informant for the Las Vegas Police Department. Booker took Turnbou in Booker's auto to a certain pool hall and introduced him to one Pete Johnson,2 saying to Johnson that Turnbou was Booker's friend and '* * * wants to get some pot.' Johnson replied that he had a connection that could take care of the request except that the connection's supply was low, and Johnson thought the connection could not supply a pound, but that he could get some cans at $20.00 per can. Thereupon Turnbou, Booker and Johnson Went in Booker's auto to No. 503 Jefferson Street. There Johnson asked for and received $40.00 from Turnbou. Johnson then entered the No. 503 premises. He came out some five minutes later with the defendant Wood. Wood drove off in a Cadillac and Johnson, Turnbou and Booker followed him in Booker's auto. In getting back into Booker's auto after the defendant had driven off in the Cadillac, Johnson told Turnbou that they would have to go to the neighborhood of the 'El Morocco' to meet the connection. When they reached the vicinity of the El Morocco the defendant came to the auto and handed Johnson two foil-wrapped packages, which packages Johnson immediately handed to Turnbou. No order form such as is required by 26 U.S. Code, 4742(a) supra, was used in the transaction. Each of the two packages contained a substantial quantity of marihuana.
3
The defendant lists 8 asserted errors in his assignment of errors. We deal with them seriatim:
4
1. The defendant says that the district court should have dismissed the indictment before trial because there was no 'legal evidence' before the grand jury; that when it brought the indictment, it had nothing but hearsay evidence before it.
5
The Supreme Court of the United States, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) held that a federal indictment was not invalidated by the fact that 'only hearsay evidence was presented to the grand jury.' Further pertinent language from the Costello opinion, written by Mr. Justice Black, is quoted in our opinion in Johnson v. United States, 9 Cir., 404 F.2d 1069, No. 22632-A, decided today, and will not be repeated here. The assignment of error is not valid.
6
2. The second assignment of error attacks the sufficiency of the evidence to establish the elements of the crime charged in the indictment. What the indictment charged against the defendant was that he had transferred marihuana to Turnbou, not in pursuance of a written order from the Secretary of the Treasury, in violation of Title 26, U.S. Code 4742(a). The Government's evidence showed that Johnson, having told Turnbou that he could, through a connection, get marihuana for transfer to Turnbou, went to the defendant, conferred with him, whereupon the defendant went to another place and shortly appeared with two packages of marihuana which he handed to johnson who immediately and in the defendant's presence, handed them to Turnbou.
7
Title 18, U.S. Code, Section 2 provides that whoever aids and abets the commission of an offense against the United States Shall be punishable as a principal. It is unnecessary that an indictment for a crime allege a violation of 18 U.S Code, 2, to lay a foundation for a conviction based on aiding and abetting. In a colloquy between Court and defense counsel in which counsel argued that the defendant knew nothing about the transaction in which marihuana was allegedly transferred, the court said 'every person who thus wilfully participates in the commission of a crime may be found to be guilty of that offense.' Then the court went on to correctly define aiding and abetting, and next, as defendant's counsel says in his brief '* * * the court requested counsel to prepare instructions on the theories which the Court had now developed for the prosecution, but defense counsel refused to participate in that.' Defense counsel said 'I won't prepare anything on the, I don't think it is applicable.'
8
On the testimony of Turnbou, which the jury must have believed, the defendant's participation in the transaction, the putting of the marihuana into the hands of Johnson who immediately passed it on to Turnbou was properly a transfer, and not the aiding and abetting of a transfer by Johnson. Defense counsel had spurned the idea of an instruction on aiding and abetting, obviously because he hoped to persuade the jury the the defendant had no guilty knowledge about the transaction, if they believed that such a transaction occurred, and therefore should not be convicted either of transferring, or of aiding and abetting the transfer. The court gave no instruction on aiding and abetting. That could not have prejudiced the defendant because, since the jury found the defendant guilty of having, together with Johnson, made the transfer, it could not have failed to find him guilty, on Turnbou's testimony of the less direct involvement of aiding and abetting. The only question of substance in the defendant's case was the question of whether there was a transfer at all and, if there was, whether he had guilty knowledge of it. The jury found, from the circumstances, that he had guilty knowledge. His counsel correctly estimated that if that should happen, an instruction on aiding and abetting would be of no use to the defendant, in view of 18 U.S. Code, 2.
9
3. The defendant's third assignment of error is:
10
'that the defendant was denied due process of law in that the Court did not remain the arbitor and impartial tryor of the facts and law, but became an advocate for the Government.'
11
Defendant's counsel became obsessed with the idea that, the trial court having indicated at one stage of the trial that it was doubtful of the correctness of the Government's construction of the applicable statute, and also that the court thought that the Government's case was lacking in an essential fact, the defendant thereupon acquired a vested right that the case be dismissed, which right was denied him when the court after further study of the statute came to the correct conclusion as to its meaning, and, after having the court reporter read back some evidence which the court had temporarily forgotten, became aware that the evidence of the essential fact was not lacking.
12
Defense counsel, in his brief, after quoting at length from the court's oral discussion says:
13
'It is obvious that the Court is searching everywhere for some excuse to hold the defendant, instead of giving him the benefit of the reasonable doubt which the statutes provide and which is his constitutional right.'
14
We will not dignify the defendant's third assignment of error, except to say that there is not even the most tenuous basis in the record for the serious charges made against the district court in the passage just above quoted from the brief of the defendant's counsel. The language is inexcusable and highly reprehensible.
15
4. Assignment of error No. 4 asserts that the defendant Wood, a Negro, was denied a constitutional trial in that his jury included no Negroes and was not composed of a cross-section of the community. No evidence was offered to prove that there were legal defects in the method of jury selection. The assignment of error has no merit.
16
5. Assignment of error No. 5 asserts error in the district court's refusal to direct the jury to bring in a verdict of acquittal. The evidence in the case was adequate to take the case to the jury. It would have been an encroachment upon the province of the jury for the court to have directed a verdict of acquittal.
17
6. The sixth assignment of error says that Sergeant McCarthy of the Las Vegas Police force 'the key witness upon whom the Government relied to bring about the conviction of appellant Wood, committed perjury in the Wood trial.' Sergeant McCarthy was not the key witness in the trial. Turnbou, the Federal Narcotics Agent, was the Government's key witness. Sergeant McCarthy did not perjure himself. He was vigorously cross-examined by defense counsel and his testimony, though relatively unimportant, gave every indication of being frank and truthful.
18
7. The seventh assignment of error says that in the trial 'the law which asserts that a defendant is innocent until he is proven guilty beyond a reasonable doubt was effectively negated.' There is nothing whatever in the record of the trial to support this assertion. And the instructions on the subject were the usual careful and emphatic instructions.
19
8. The eighth assignment of error speaks of error in admitting exhibits and hearsay testimony over objections of defense counsel. Counsel's argument makes no mention of this assignment. The assignment itself gives 7 references to the Reporter's Transcript. Several of the references are to objections made by defense counsel on the ground that the testimony was hearsay. It was not hearsay. It was not offered nor received to prove the truth of the statement testified to, but to prove that the statement had been made and heard. The other transcript references relate to the admission in evidence of containers in which the marihuana here in question was transmitted to one or more chamical testing laboratories and from the laboratories returned to the place of the trial. They were properly admitted.
20
We find no error, and the judgment is affirmed.
*
Senior Judge, The United States Court of Claims, sitting by designation
1
4742(a) provides, in pertinent part:
It shall be unlawful for any person * * * to transfer marihuana except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary (of the Treasury) or his delegate.
2
Pete Johnson was indicted jointly with the defendant, but was tried in a separate trial. He was convicted and has appealed. His conviction is affirmed in Case No. 22632-A, this day decided
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968 F.2d 603
59 Fair Empl.Prac.Cas. (BNA) 385,59 Empl. Prac. Dec. P 41,615Richard ARENS, Thomas Balke; William Bartling; AlysonBazzett; Richard Boe; Louis Borello; William Cannon;Frances Carr; David L. Cash; Lillian Chapton; LarryCross; Bobby DeBoer; Frank DeWildt; Marion Dougherty;Linda Dunn; Lonzie Earvin; Greta Fails; Donald Fetrow;Charles Francisco; Frank Geluso; Mildred Grover; CarlHarig; Craig Harrington; Kerry Harrington; MichaelHarrington; Jesse Harris; Donald Hoekstra; Randy Holmes;Robin Hughes; Debra Jarrett; Peggy Jordan; Roger Kamps;James Kelley; Rose Kilgore; Thomas Kloosterman; RayLangford; Gwendolyn Lawrence; Timothy Lombard; Jose A.Lopez; Terry Martini; Kenneth Meekhof; William R. Mercer;Karen A. Mercer; Kenneth Miller; Robert Monroe; DougMutschler; Frederick G. Nilson; Bonnie Pepper; HermanRenkema; Francisco Reyes; Doris Robinson; Robert Rodgers;Wayne Rosendahl; Rose Mary Smith; Alice Springer; JosephStrandberg; Glen Termeer; Billie A. Upton; James Uzarski;Mildred Vandermark; David M. Vandermolen; SueVandermolen; Richard Vanslyke; Donald Vantuinen; PabloVerdeja; Gary B. Walker; Harold Weaver; FrederickWebster; Elaine Wheaton; Roger Woodcox, Plaintiffs-Appellants,v.G.R. MANUFACTURING COMPANY, A foreign corporation; andWhite Consolidated Industries, Inc., a foreigncorporation, Jointly and Severally,Defendants-Appellees.
Nos. 91-1553, 91-2238.
United States Court of Appeals,Sixth Circuit.
Argued May 5, 1992.Decided July 1, 1992.Rehearing Denied July 27, 1992.
Frank J. Chambers (argued and briefed), Martin R. Sturm (briefed), Chambers, Steiner, Mazur, Ornstein & Amlin, Kalamazoo, Mich., for plaintiffs-appellants.
Stephen D. Turner (argued and briefed), Stephen S. Muhich, Dykema, Gossett, Spencer, Goodnow & Trigg, Grand Rapids, Mich., for defendants-appellees.
Before: KENNEDY and SUHRHEINRICH, Circuit Judges; and WEBER,* District Judge.
SUHRHEINRICH, Circuit Judge.
1
The plaintiffs filed these actions in the United States District Court for the Western District of Michigan. The district court dismissed the first for failure to timely serve process and lack of subject matter jurisdiction and the second for failure to comply with the statute of limitations. We affirm in part and reverse and remand in part.
2
* White Consolidated Industries ("WCI") is a manufacturer of durable kitchen appliances. In 1987 WCI determined that it would need to close one of its plants. Initially, WCI targeted its Mansfield, Ohio plant. However, the company eventually decided to close its Wyoming, Michigan range plant, which was operated through WCI's subsidiary, Grand Rapids Manufacturing Co. ("G.R."). The decision was announced on September 1, 1987. WCI followed this with an October 1987 announcement of its intention to cease production at the Wyoming facility by December 31, 1987. WCI and the union entered into a termination agreement with an effective date of December 4, 1987. The agreement expressed WCI's intention to terminate all collective bargaining unit employees by April 30, 1988.
3
WCI did in fact cease production by December 31, 1987. However, a few collective bargaining unit employees were kept on to maintain and make improvements to the plant. All bargaining unit employees were terminated by April 30, 1988.
4
A number of employees filed suit in Michigan state court claiming G.R. chose the Wyoming plant for closure because of the age of its workforce, thereby violating Michigan's Elliott-Larsen Act, Mich.Comp.Laws § 37.2101 et seq. ("the Wiseman action").1 The case was subsequently removed to the United States District Court for the Western District of Michigan on the grounds of diversity. The court then ordered the plaintiffs to join all additional parties by October 1989, by which time there were 317 plaintiffs. In August 1990, seventy former employees who had not joined the Wiseman action brought this case ("Arens I "). Substantively, these actions are identical.
5
On December 8, 1990, the Arens I summons expired without being served. On December 18, 1990, the district court issued sua sponte an order to show cause why Arens I should not be dismissed for failure of service. On March 13, 1991, the district court dismissed Arens I for failure to serve process and for lack of subject matter jurisdiction.
6
The Arens plaintiffs filed a second action ("Arens II ") on March 18, 1991. The district court dismissed this action as time-barred, rejecting the argument that the three-year statute of limitations did not begin to run until the plant was closed on April 30, 1988.
II
7
The district court ruled that the plaintiffs' complaint in Arens I failed to satisfy the amount in controversy requirement, 28 U.S.C. § 1332. The plaintiffs do not appeal this determination. Since there is no dispute that the court lacked subject matter jurisdiction over Arens I, that appeal is dismissed without regard to or consideration of arguments relating to service of process.
III
8
The Arens II complaint satisfied all requirements of subject matter jurisdiction. However, G.R. contends that this complaint did not satisfy the statute of limitations. Age discrimination actions brought under Michigan's Elliott-Larsen Act must be filed within three years of the date on which they accrue. See Mich.Comp.Laws § 600.5805(8).
9
For the purposes of determining when their individual causes of action accrued, the seventy Arens II plaintiffs fall into two categories: those whose last day of work occurred after the plant closing was announced and those whose last day of work occurred before the announcement. The claims of plaintiffs in the first category accrued on the last day they worked. Janikowski v. Bendix Corp., 823 F.2d 945, 949 (6th Cir.1987). The uncontradicted affidavit of Gina Andresen establishes that the last date worked for all but six plaintiffs was prior to March 1, 1988. Therefore, the complaint was filed beyond the three year limitations period for all plaintiffs in this category.
10
The rule announced in Janikowski cannot apply to plaintiffs in the second category. These plaintiffs were laid off prior to G.R.'s decision to close the plant. It is well-settled that a cause of action under the Elliott-Larsen Act does not accrue until a discriminatory act takes place. Northville Public Schools v. Michigan Civil Rights Comm'n, 118 Mich.App. 573, 579, 325 N.W.2d 497 (1982). The act challenged here is the decision to close the Wyoming facility and the attendant termination of the various plaintiffs' employment. Since the act that the second category of plaintiffs contest is not their layoff, their causes of action did not accrue on their last date of work.
11
A cause of action accrues when a plaintiff knows or should reasonably know that he has a possible cause of action. See Grimm v. Ford Motor Co., 157 Mich.App. 633, 638, 403 N.W.2d 482, app. denied, 428 Mich. 902, 406 N.W.2d 465 (1986). Plaintiffs who were laid off before the plant closing was announced should have known, in the wake of this announcement, that they would not be called back to work. Certainly, they should have realized this by December 31, 1987--the day on which production ceased. Using either the date production ceased or the date the closing was announced, it was more than three years before the complaint was filed that the second category of plaintiffs should have known that their employment was terminated pursuant to G.R.'s decision to close the Wyoming range plant.
12
As to the six plaintiffs not covered by the Andresen affidavit, William Bartley, Marion Dougherty, Peggy Jordan, Roger Kamps, James Kelley, and Rose Mary Smith, G.R. has failed to submit any evidence regarding their last date worked.2 Some G.R. employees continued to work after March 18, 1988. Since G.R. bears the burden of proof on this issue, e.g., Blaha v. A.H. Robins & Co., 536 F.Supp. 344, 345 (W.D.Mich.1982), aff'd, 708 F.2d 238 (6th Cir.1983), we cannot assume that Bartley, Dougherty, Jordan, Kamps, Kelley, and Smith were not among them, in which case their claims may not be time-barred. Therefore, we remand the claims of these plaintiffs for determination of their last date worked.
13
Finally, both categories of plaintiffs believe that, due to equitable considerations, the statute of limitations was tolled during the pendency of Arens I. Resort to equitable grounds to toll the limitations period is "very much restricted." Geromette v. General Motors Corp., 609 F.2d 1200, 1203 (6th Cir.1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980). The plaintiffs argue that since G.R. had actual notice of their action and no prejudice resulted from exceeding the limitations period their claim should not be held time-barred. However, actual knowledge is not a sufficient basis for equitable tolling. Mason v. Letts, 14 Mich.App. 330, 331-33, 165 N.W.2d 481 (1968). The plaintiffs must show conduct on the part of G.R. that prevented the assertion of their rights within the statutory period. Geromette, 609 F.2d at 1203; Mason, 14 Mich.App. at 333, 165 N.W.2d 481; see Cronin v. Minster Press, 56 Mich.App. 471, 481-82, 224 N.W.2d 336 (1974). There is no evidence that G.R. engaged in such conduct.
IV
14
We affirm the dismissal of Arens I as to all plaintiffs and the dismissal of Arens II as to all plaintiffs except William Bartley, Marion Dougherty, Peggy Jordan, Roger Kamps, James Kelley, and Rose Mary Smith. On remand, the district court should make findings as to the dates on which Bartley, Dougherty, Jordan, Kamps, Kelley, and Smith last worked at G.R.'s Wyoming range plant.
*
The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation
1
No claim was filed under the corresponding federal statute
2
The failure to account for several of these plaintiffs appears to stem from name changes and clerical errors. It seems that Marion Dougherty is also known by her maiden name, Marion Wondergem. Rose Mary Smith is also known as Rose Mary Hagen and Rose Mary Rainville. William Bartling was incorrectly listed as William Bartley on the Arens II complaint. The Andresen affidavit also indicates that G.R. has no employment records for plaintiff Robert Mercer. However, the Beller affidavit, submitted by the plaintiffs, admits that Robert Mercer's full name is William Robert Mercer. The Andresen affidavit, which is uncontradicted, establishes Mercer's last date of work as December 29, 1987. Thus his claim is time-barred
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966 N.E.2d 793 (2012)
IN RE MARRIAGE OF GREEN.
No. 49A02-1110-DR-932.
Court of Appeals of Indiana.
April 23, 2012.
MAY, J.
Disposition of Case by Unpublished Memorandum Decision Dismissed.
FRIEDLANDER, J. and BARNES, J., Concurs.
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