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713 N.E.2d 348 (1999)
Fred ADLER, Appellant-Respondent,
v.
Suzanne R. ADLER, Appellee-Petitioner.
No. 37A04-9808-CV-401.
Court of Appeals of Indiana.
June 30, 1999.
*350 Debra Lynch Dubovich, Levy & Dubovich, Highland, for appellant.
Steven L. Langer, Langer & Langer, Valparaiso, for appellee.
*349 OPINION
RUCKER, Judge.
This is a post-dissolution action involving among other things the interpretation of certain provisions of an irrevocable trust. Fred Adler ("Father"), settlor of the trust, appeals an order entered in favor of Suzanne Adler ("Mother"). Father raises several issues for our review which we consolidate and rephrase as: (1) did the trial court have jurisdiction to interpret and enforce provisions of *351 the trust; (2) did the trial court modify the parties' property settlement agreement and if so did the trial court err in so doing; (3) was Father in contempt of court for directing the trustee to pay his daughter's educational expenses where the trial court had ordered Father to pay such expenses; (4) did the trial court err in awarding Mother attorney fees and refusing to award Father attorney fees.
We affirm in part and reverse in part.
Mother and Father were married in September 1975; two children, Carl and Selly, were born as a result. In November 1991 the marriage was dissolved with the trial court approving the parties' child custody and property settlement agreement. The agreement provided in part that certain assets of Adler Ventures, Ltd. would be held in an irrevocable trust for the benefit of the two children. First Bank of Whiting was named as trustee. The agreement also showed that the Bank was a limited partner in Adler Ventures owning an 80% interest therein, and that Father was the general partner owning a 20% interest. According to the agreement, upon termination of the trust Father's 20% interest in Adler Ventures would be divided equally between himself and Mother. Also, the agreement acknowledged that Father would receive reasonable compensation for his services as general partner.
In August 1997 Mother and Father entered an agreed order that was approved by the trial court. The order provided in part that Selly would attend a boarding school in Sheffield, Massachusetts and that the entire cost of the schooling would be paid in full by Father. Shortly thereafter, at Father's direction the trustee issued Father several checks two of which were made payable to the boarding school for expenses associated with Selly's education. Another check was issued to Father as reimbursement for certain unidentified school expenses he had paid on Selly's behalf. A fourth check was made payable to Father for $3,362.00 as a 20% reimbursement. The record also shows that in April 1997, before the agreed order was entered, Father sent Mother a written notice indicating that he had withdrawn $26,000.00 from the trust. According to the notice the withdrawal was made to compensate Father for his services as a general partner in Adler Ventures. The compensation was made retroactive to 1981, the date the trust was established.
Thereafter Mother filed a petition for rule to show cause complaining that Father was in contempt of court for withdrawing monies from the trust to pay his court ordered obligations. In the same petition Mother also sought to modify the property settlement agreement. Mother complained alternatively that Father's retroactive withdrawal of funds violated certain provisions of the trust or if no violation occurred then the withdrawn funds were marital assets for which she was entitled to an equitable share. Father responded by filing a motion to dismiss arguing, among other things, that the trial court lacked jurisdiction to entertain Mother's petition. The trial court denied Father's motion and after conducting a hearing entered an order that contained several components: (1) Father was found in contempt of court for using trust funds to pay Selly's school expenses as opposed to paying them himself; (2) as a sanction for contempt Father was ordered to pay another account all monies withdrawn from the trust that Father used to pay Selly's educational expenses; (3) Father was ordered to repay the trust $16,000.00 which, according to the court, represented excess management fees; (4) Father was ordered to return to Adler Ventures any monies he received representing his 20% interest; and (5) Father was ordered to divide equally with Mother any future distributions he received from Adler Ventures, excluding management fees. The Court also awarded Mother attorney fees. Father now appeals.
I.
Father first raises a number of issues and subissues all of which fall under the general heading of whether the trial court possessed jurisdiction over the trust and trust assets. Although not clearly articulated in his brief, Father's argument implicates only certain aspects of the trial court's judgment, namely that portion of the order directing Father to repay the trust $16,000.00 and that portion of the order directing Father to return to Adler *352 Ventures any monies Father received representing his 20% interest. According to Father these are matters of probate jurisdiction and not matters to be resolved by a court exercising jurisdiction in a post-dissolution proceeding.
There are three types of jurisdiction: (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case. Browning v. Walters, 620 N.E.2d 28, 31 (Ind.Ct.App.1993). Only subject matter jurisdiction and jurisdiction of the particular case are relevant here. Subject matter jurisdiction refers to the power of a court to hear and decide a particular class of cases. Putnam County Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind.Ct.App.1993). The issue of subject-matter jurisdiction is resolved by determining whether the claim involved falls within the general scope of authority conferred on a court by the Indiana Constitution or by statute. Id. In this case, to the extent Father is arguing that the Jasper Circuit Court lacks subject-matter jurisdiction to resolve matters concerning trusts and probate, his argument fails. Ind. Code § 33-4-4-3 provides "[t]he circuit court has original jurisdiction in all civil cases and in all criminal cases, except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction." Consistent with Ind.Code § 33-4-4-3 we have held that circuit courts in Indiana have exclusive jurisdiction over all probate matters except where otherwise provided by statute. In re Plummer's Estate, 141 Ind. App. 142, 219 N.E.2d 917, 921 (1966). Matters involving trust administration are civil in nature and generally heard by the probate court. In the case before us there is no statute restricting the probate jurisdiction of the Jasper Circuit Court. Thus, it is apparent that the court in this case has jurisdiction to hear and resolve matters of trusts and probate. In any event Father's subject matter jurisdiction argument fails also for another reason. As we show below, contrary to Father's contention, the trial court was not exercising its probate jurisdiction in this instance. Rather, the court was exercising jurisdiction as a dissolution court.
Father also contends the trial court lacked jurisdiction over this particular case. As Father correctly points out a court can have subject matter jurisdiction over a class of cases but not have jurisdiction over a particular case. "`Jurisdiction of the particular case refers to the right, authority, and power to hear and determine a specific case within the class of cases over which a court has subject matter jurisdiction.'" Harp v. Indiana Dept. of Highways, 585 N.E.2d 652, 659 (Ind.Ct.App.1992) (quoting City of Marion v. Antrobus, 448 N.E.2d 325, 329 (Ind.Ct. App.1983)) (emphasis in the original). Whether a court has jurisdiction to hear a particular case depends upon the existence of the particular facts contained therein. Matter of Adoption of H.S., 483 N.E.2d 777, 780 (Ind.Ct.App.1985). According to Father the trial court lacked jurisdiction over this particular case because: (1) the Adler Venture Trust, although mentioned in the divorce decree, was not marital property and thus the trial court had no authority to enforce its terms or interpret its provisions, (2) neither the beneficiaries nor the trustee were given notice that the trial court would enter an order affecting Trust assets, and (3) Mother lacked standing to raise any issue concerning the Trust in that she had only a speculative contingent remainder interest.
Father's contention that the Trust was not marital property is inconsistent with the record. As a part of the dissolution decree the trial court approved the parties' "Marital Property Settlement, Custody, Visitation and Child Support Agreement." R. at 235. This elaborate and detailed twenty-two page document included a section entitled "Adler Ventures, LTD" that provided:
1. It is agreed and stipulated by the parties that Adler Ventures, Ltd., is a limited partnership in which the limited partner is First Bank of Whiting, as Trustee for Fred Adler's four (4) children, two (2) of whom are children from a prior marriage, namely, Vanessa Adler and Monica Adler. As Vanessa and Monica have already had the benefit of their share of the trust, the remaining assets are to be used exclusively for the benefit of Carl and Selly in accordance with the terms of the Agreement of *353 Limited Partnership of Adler Ventures, Ltd., and the March 20, 1981 Trust Agreement. First Bank of Whiting, as Trustee, is the limited partner owning an eighty percent (80%) interest. Husband, who owns twenty percent (20%) of Adler Venture[s], Ltd., is the general partner.
2. It is further agreed and stipulated by the parties that Husband shall continue to act as general partner of Adler Ventures, Ltd., and upon termination of the trust in accordance with the terms and provisions of the trust agreement, Husband's twenty percent (20%) interest shall be divided and distributed equally between himself and Wife.
3. It is further agreed and stipulated by the parties that when Husband withdraws any funds from Adler Ventures for any reason whatsoever, he shall notify Wife in writing of the withdrawal and supply Wife with all documentation relating to the withdrawal.
R. at 252-53. Although the Trust instrument itself was not presented to the dissolution court, it is clear that the Trust was more than just "mentioned" in the divorce decree as Father asserts. Rather, by agreement of the parties the Trust was made a marital asset and included as a part of the parties' property settlement agreement. It follows that in this post-dissolution action Mother has standing to challenges any conduct by Father that was not consistent with the terms and conditions of the dissolution decree. Indeed it would be incongruous for the dissolution decree to provide that Father give Mother written notice and documentation regarding any funds he withdraws from the Trust and then leave the dissolution court powerless to sanction Father should he fail to provide documentation, or if the documentation that is provided demonstrates excessive or inappropriate withdrawals.
As for Father's contention that neither the beneficiaries nor the trustee was given notice of this action, we conclude that no such notice was necessary. If this were a case involving purely matters of trust administration, then Father's argument would be more persuasive.[1] However this case was presented to the trial court for enforcement of its order of dissolution. That it involved interpreting and enforcing certain trust provisions was made necessary by the parties own property settlement agreement. By its express terms the agreement provides that once the trust terminates Wife is entitled to one half of Father's twenty percent (20%) interest. Here the trial court was convinced that by receiving $3,362.00 as a 20% reimbursement and by receiving $26,000.00 as management fees retroactive to 1981, Father was attempting to diminish the amount of trust assets that would be available to Wife upon termination of the trust. Accordingly the trial court ordered Father to repay the Trust $16,000.00 representing excess management fees and any monies Father received representing his 20% interest. The trial court possessed jurisdiction over this particular case to enter such an order. And we find that the order was not erroneous.
II.
Father next contends the trial court erred in modifying the property settlement agreement. Mother counters this issue is waived because it was not presented to the trial court. We disagree with Mother's assertion. As we indicated above among other things the property settlement agreement provided that upon termination of the trust, Mother would receive one-half of Father's *354 20% interest in Adler Ventures. Pointing to Father's receipt of a 20% disbursement from Adler Ventures, Mother sought to modify the property settlement agreement complaining alternatively that either the withdrawal violated the terms of the trust or that the withdrawal of funds represented marital assets of which she was entitled to an equitable share. In response to Mother's complaint the trial court declared "in the future and to the extent that Husband receives any distributions from Adler Ventures, he shall pay Wife one-half of any such distribution, excluding management fees." R. at 818. We fail to see how Father waived raising this issue when Mother presented the matter to the trial court and the trial court ruled on the issue. In any event the trial court's order modified the original settlement agreement by awarding Mother half of any distribution Father received prior to and regardless of the date the trust is terminated.
A property settlement which is incorporated into a final divorce decree is a binding contract, and the dissolution court may not modify that settlement absent fraud, duress, or undue influence. Johnson v. Johnson, 575 N.E.2d 1077, 1080 (Ind.Ct.App. 1991); see also I.C. § 31-15-2-17(c). In this case, Mother cited fraud as a basis for modification. However, Mother failed to demonstrate the existence of fraud. Further, the trial court itself did not make a finding of fraud. Rather, the court stated that "not only is this Court troubled by the fact that Husband retroactively and unilaterally increased his management fees, but the arbitrary and capricious manner in which Husband made the determination as to the amount of his fees is very troublesome and disturbing...." R. at 816. These comments cannot be interpreted as a determination that Father engaged in fraud either before or after the parties entered their settlement agreement. Because Mother failed to carry her burden of demonstrating fraud, we conclude the trial court erred in modifying the parties' property settlement agreement. On this issue the judgment of the trial court is reversed.
III.
Father also complains the trial court abused its discretion in finding him in contempt of court. Father acknowledges that the trust paid the cost of Selly's educational expenses. He argues, however, that a reasonable reading of the court's order does not prohibit the trust from making those payments. Rather, Father asserts that the order should be read to mean that "to the extent either parent is responsible for their daughter's educational costs, the Father will pay the `full amount.'" Brief of the Appellant at 37. Father maintains that the trial court erred in finding him in contempt because "[t]here is no evidence that, contrary to the Agreed Order, the Father ever attempted to hold the former wife liable for even part of the daughter's schooling expenses." Id.
Although facially appealing Father's argument is not persuasive. In order to be punished for contempt of a court's order, there must be an order commanding the accused to do or refrain from doing something. Shively v. Shively, 680 N.E.2d 877, 882 (Ind.Ct.App.1997). A person failing to abide by the court's order bears the burden of showing that the violation was not willful. Id. We will only reverse the trial court's judgment of contempt if there is no evidence to support it. Id. The order providing the bases for the trial court finding Father in contempt dictates in relevant part:
The entire cost of the schooling shall be paid in full by Father without any contribution from Mother. Further, any additional extraordinary educational related expenses including but not limited to tutoring, school related travel, study abroad programs, summer travel, and special housing shall be determined and approved by and paid for by the Father.
R. at 502. This order is unambiguous. Whether Father ever attempted to hold Mother liable for the expenses is not at issue. The issue is whether Father evaded the court's order by not paying in full for Selly's educational expenses. It is clear that Father failed to do that which was ordered: pay the entire cost of Selly's schooling. Father also counters that he did not willfully fail to comply *355 with the order because the trustee had sole discretion over the trust's funds, and Father never exerted control over the trustee. We disagree. Evidence introduced at the hearing revealed that upon Father's oral direction the trustee debited the trust for $16,810.00, issued a check to Father for reimbursement of Selly's school expenses in the amount of $2,295.00, issued a check to the Berkshire School in the amount of $14,265.00 for Selly's first term tuition, and issued a check in the amount of $250.00 for Selly's school health insurance. The evidence demonstrated that trust expenditures were not completely beyond Father's control, and that Father specifically directed the trustee to pay for his daughter's educational expenses. We conclude the trial court did not err in finding Father in contempt of court.
IV.
Lastly, Father contends the trial court erred in awarding Mother attorney fees and denying his own request for fees. Regarding the fees awarded Mother, Father complains the trial court did not take into account the parties' relative economic resources. Without regard to economic resources, once a party is found in contempt, the trial court has "the inherent authority to compensate the aggrieved party for losses and damages resulting from another's contemptuous actions." Crowl v. Berryhill, 678 N.E.2d 828, 832 (Ind.Ct.App.1997). Here, because Father was in contempt the trial court did not err in awarding Mother $2,000.00 in attorney fees.
As for Father's complaint that the trial court erred in failing to grant his own request for fees, we disagree. Apparently anticipating that he might prevail on some of the issues upon appeal, Father cites DeBoer v. DeBoer, 669 N.E.2d 415, 427 (Ind. Ct.App.1996), trans. denied, for the proposition that "[i]f a party prevails, even only in part, upon appeal, the issue of the attorney fee award must be remanded with the other issues for reconsideration." Brief of the Appellant at 38. We disagree with Father's interpretation of DeBoer. In that case the trial court awarded attorney fees in Father's favor because Mother's "`legal and strategic positions'" caused Father to incur unnecessary expenses. DeBoer, 669 N.E.2d at 420. Upon appeal we determined among other things that Mother's legal positions were not completely without merit and that in fact she had prevailed on many of the issues on appeal. Id. at 427. We concluded therefore "the trial court improperly awarded fees on this basis. The issue of attorney's fees must be remanded for reconsideration." Id. Contrary to Father's argument DeBoer does not stand for the proposition that the trial court's award of attorney fees is later rendered erroneous when a party prevails on some issues upon appeal. Although the trial court may, it is not required to award attorney fees and expenses. Rather the trial court is afforded broad discretion in that regard. There is no abuse of discretion for the trial court not to do that which it is not required to do. Rump v. Rump, 526 N.E.2d 1045, 1047 (Ind.Ct.App. 1988), trans. denied. In this case the trial court declined to award Father attorney fees. The trial court did not abuse its discretion in so doing.
In conclusion we reverse that portion of the trial court's order directing Father to divide equally with Mother any future distributions he may receive from Adler Ventures. In all other respects the judgment of the trial court is affirmed.
Judgment affirmed in part and reversed in part.
DARDEN, J., and SULLIVAN, J., concur.
NOTES
[1] With few exceptions a trust is generally administered without continuous court intervention. See I.C. § 30-4-6-2; Matter of Raymond Heeter Trust, 681 N.E.2d 240, 243 n. 1 (Ind.Ct.App. 1997). Unless the trust provides otherwise, a trustee may perform every act necessary or appropriate for the purposes of the trust without court authorization. I.C. § 30-4-3-3. However, "[i]f there is reasonable doubt with respect to any matter relating to the administration of the trust, the trustee is entitled to be instructed by the court." I.C. § 30-4-3-18; see also In re Trust of Johnson, 469 N.E.2d 768, 771 (Ind.Ct. App.1984), trans. denied (stating that the trustee is not compelled to act at his peril in the administration of the trust). In like fashion unless the trust provides otherwise a trustee has the duty "[t]o defend actions involving the trust estate." I.C. § 30-4-3-6(b)(10). In addition where a party seeks court intervention concerning a trust, notice must be given to any person "whose rights may be affected or upon whom a liability might be imposed by any proceeding." I.C. § 30-4-6-6.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6296
JOHN G. SIMKUS, JR.,
Plaintiff - Appellant,
versus
BISHOP L. ROBINSON; RICHARD A. LANHAM, SR.;
FRANK C. SIZER, JR.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, District Judge.
(CA-97-1947-WMN)
Submitted: May 14, 1998 Decided: May 18, 1998
Before WIDENER and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John G. Simkus, Jr., Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Wendy Ann Kronmiller, Assistant Attorney General,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order denying relief on
his 42 U.S.C. § 1983 (1994) complaint. We have reviewed the record
and the district court's opinion and find no reversible error.
Accordingly, we affirm on the reasoning of the district court.
Simkus v. Robinson, No. CA-97-1947-WMN (D. Md. Feb. 13, 1998). We
deny Appellant's motion to terminate the collection of filing fees
and motion for expedited treatment. 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 deci-
sional process.
AFFIRMED
2
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4 F.Supp.2d 1221 (1998)
BORDEN, INC., Gooch Foods, Inc. and Hershey Foods Corp., Plaintiffs,
v.
UNITED STATES and United States Department Of Commerce, Defendant,
and
Delverde, SrL and Delverde USA, Defendant-Intervenors.
Slip Op. 98-36. Court No. 96-08-01970.
United States Court of International Trade.
March 26, 1998.
*1222 *1223 Collier, Shannon, Rill & Scott, PLLC (Paul C. Rosenthal, Kathleen W. Cannon, David C. Smith, Jr., and John B. Brew), Washington, DC, for Borden, Inc., Gooch Foods, Inc., and Hershey Foods Corp.
Gilbert, Segall and Young LLP (Jeffrey E. Livingston and David D. Howe), New York City, for F.lli De Cecco di Filippo Fara San Martino S.p.A.
McKenna & Cuneo, LLP (Lawrence J. Bogard, Andrew E. Bej, and Malaika D. Carter), Mound, Cotton & Wollan, (Constantino P. Suriano), Washington, DC, for Delverde, SrL and Delverde USA.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Dept. of Justice (Lesleyanne Koch Kessler), Dean Pinkert, Attorney-Advisor, Office of Chief Counsel for Import Administration, U.S. Dept. of Commerce, of counsel, Washington, DC, for Defendant.
OPINION
RESTANI, Judge.
This matter is before the court on cross Motions for Judgment on the Agency Record, pursuant to USCIT Rule 56.2, by Borden, Inc., Gooch Foods, Inc., and Hershey Foods Corp. (collectively "Borden" or "the domestic industry") and Delverde, SrL and Delverde USA, Inc. (collectively "Delverde"). This matter is also before the court on a Motion for Judgment on the Agency Record by F.lli De Cecco di Filippo Fara San Martino S.p.A. ("De Cecco"). The International Trade Administration, U.S. Department of Commerce's ("Commerce" or "the agency") determinations under review are Certain Pasta from Italy, 61 Fed.Reg. 30,326 (Dep't Commerce 1996) (final determination) ["Final Determination"] and 61 Fed.Reg. 38,547 (Dep't Commerce 1996) (amended final determination and antidumping order).
Borden asks the court to find that Commerce erred in failing to calculate dumping margins for Delverde using transactionspecific export prices, rather than weighted-average prices, pursuant to 19 U.S.C. § 1677f-1(d)(1) (1994), the "targeted dumping" provision. Borden also challenges Commerce's commission offset methodology.
Delverde argues that Commerce, during Delverde's level of trade inquiry, unlawfully denied its request for a constructed export price ("CEP") offset, an adjustment to normal value which Delverde claims would have led to a de minimis dumping margin. The *1224 defendant agrees in part and requests a remand to correct analytical errors. Defendant-intervenor Borden opposes this request. Delverde also argues that Commerce erred in rejecting the capital asset depreciation expense component of the cost of production data submitted by Delverde affiliate Tamma Industrie Alimentari, SrL ("Tamma").
De Cecco asks the court to review the 46.67% antidumping margin assigned to it by Commerce based on an "adverse facts available" analysis.
The court considers issues raised by Borden, Delverde, and De Cecco separately, in that order. The facts relating to each issue will be stated separately.
JURISDICTION
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994).
STANDARD OF REVIEW
The court must uphold Commerce's Final Determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1994).
I. Borden
A. Targeted Dumping Investigation
Background
On May 12, 1995, Borden filed a petition with Commerce seeking the imposition of antidumping and countervailing duties against certain pasta from Italy, pursuant to 19 U.S.C. § 1677f-1(d)(1)(B). Certain Pasta from Italy, 60 Fed.Reg. 30,268, 30,268 (Dep't Commerce 1995) (notice of initiation of investigation). Borden used average weekly retail prices to demonstrate that, for all Italian exporters, certain regions of the United States experienced significantly different pricing than others, submitting that this suggested targeting[1] and justified the use of individual (i.e. transaction-specific) export prices rather than weighted-averages to detect dumping without masking targeting. Letter from Borden to Commerce (Oct. 20, 1995), P.R. 355, Pl. Borden's App., Tab 4. Commerce initiated a sales at less than fair value ("LTFV") investigation on June 1, 1995. Certain Pasta From Italy, 60 Fed. Reg. at 30,268. Commerce found Borden's attempts to demonstrate targeting insufficient reason to depart from its normal methodology and employ instead a comparison with transaction-specific prices. Final Determination, 61 Fed.Reg. at 30,329. Commerce did not perform an independent targeted dumping analysis of the data. Commerce did find a 2.8% dumping margin using the weighted-average to weighted-average comparison. Id. at 30,365. On February 14, 1997, Borden moved for Judgment on the Agency Record, alleging that Commerce erred in refusing to conduct a transaction-specific comparison and that such a comparison would have produced a dumping margin of 6.14%. Pl. Borden's Br. at 6.
Discussion
The issue before the court is whether Commerce erred in rejecting Borden's targeted dumping allegation due to the inadequacy of Borden's pricing pattern evidence. The court concludes that Commerce erred by failing to articulate the methodology or standards by which a targeted dumping allegation would be judged and failed to clearly allocate burdens of production and analysis in the targeting context.
1. Transaction-Specific Price Comparisons, Not Weighted-Average Price Comparisons, are the Exception Requiring Justification
Section 1677f-1(d)(1) of Title 19 of the United States Code describes the LTFV price comparison analysis. The first part of the section describes the normal methodology.
(A) In general
[T]he administering authority shall determine whether the subject merchandise is being sold in the United States at less than fair value -
*1225 (i) by comparing the weighted average of the normal values to the weighted average of the export prices (and constructed export prices) for comparable merchandise, or
(ii) by comparing the normal values of individual transactions to the export prices (or constructed export prices) of individual transactions for comparable merchandise.
19 U.S.C. § 1677f-1(d)(1)(A). The statute continues with a description of conditions under which Commerce might deviate from this method. 19 U.S.C. § 1677f-1(d)(1)(B).
(B) Exception
The administering authority may determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise, if -
(i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and
(ii) the administering authority explains why such differences cannot be taken into account using a method described in paragraph (1)(A)(i) or (ii).
Id. Commerce reasonably interprets the statute to mean that the weighted-average to weighted-average comparison is the normal method required by law, but that it may, though is not required to, deviate from this requirement under certain conditions and then only upon explicit justification of its decision.
Borden's opposite interpretation, that Commerce must default to the transaction-specific methodology and justify its use of weighted-average price comparisons, is not borne out by the statutory language. 19 U.S.C. § 1677f-1(d)(1)(B)(ii). The practice Borden recommends is contrary to law as it now exists; it reflects the law as it was prior to the changes enacted by the Uruguay Round Agreements Act ("URAA"). Pub.L. No. 103-465, 108 Stat. 4809 (1994). Statement of Administrative Action accompanying the URAA, at 842, H.R. 5110, H.R. Doc. No. 316, Vol. 1, 103d Cong., 2d Sess. (1994) ("SAA"). Borden quotes the SAA selectively:
Although current U.S. law permits the use of averages on both sides of the dumping equation, Commerce's preferred practice has been to compare an average normal value to individual export prices in investigations and reviews. In part, the reluctance to use an average-to-average methodology has been based on a concern that such a methodology could conceal "targeted dumping." In such situations, an exporter may sell at a dumped price to particular customers or regions, while selling at higher prices to other customers or regions.
SAA at 842 (emphasis supplied). The passage continues, however, to describe as normal the methodology set forth in 19 U.S.C. § 1677f-1(d)(1)(A).
Consistent with the Agreement, new [19 U.S.C. § 1677f-1(d)(1)(A)] provides that in an investigation, Commerce normally will establish and measure dumping margins on the basis of a comparison of a weighted-average of normal values with a weighted-average of export prices or constructed export prices.
SAA at 842. The SAA explains that the exception to the normal methodology is an antidote to targeted dumping:
New [19 U.S.C. § 1677f-1(d)(1)(B)] provides for a comparison of average normal values to individual export prices or constructed export prices in situations where an average-to-average or transaction-to-transaction methodology cannot account for a pattern of prices that differ significantly among purchasers, regions, or time periods, i.e., where targeted dumping may be occurring. Before relying on this methodology, however, Commerce must establish and provide an explanation why it cannot account for such differences through the use of an average-to-average or transaction-to-transaction comparison. In addition, the Administration intends that in determining whether a pattern of significant price differences exist, Commerce *1226 will proceed on a case-by-case basis, because small differences may be significant for one industry or one type of product, but not for another.
Id. at 843.
Averages allow higher prices to cancel out some amount of dumping, see Potassium Chloride from Israel, 50 Fed.Reg. 4,560, 4,562 (Dep't Commerce 1985) (final determination), but transaction-specific price comparisons are statistically biased toward a dumping finding, as high priced sales are disregarded, and only the lower priced ones are included in the calculation. Congressional Budget Office, How the GATT Affects U.S. Antidumping and Countervailing Duty Policy, 33-35, 66 (1994).
[The transaction-specific methodology] contains a statistical error that will yield a positive average margin of dumping in every real-world situation except the one that would take place if every single transaction (including both the home market and U.S. sales) during the ... period of investigation occurred at the same price....
If the true margin of dumping is quite high, say, 20 percent, this statistical bias will not be very large.... However, if the estimated margin of dumping is small, the bias could be several times the magnitude of the true margin of dumping; in such cases it is more likely that no dumping exists.
Tracy Murray, The Administration of the Antidumping Duty Law by the Department of Commerce, in Down in the Dumps 23, 36-37 (Richard Boltuck & Robert E. Litan eds., 1991). Economists and politicians argued masking versus amplifying during the Uruguay Round. See Congressional Budget Office, at 33-35, 66; Murray at 36-37. Borden's argument revisits that debate. At the Uruguay Round, the U.S. argued, consistent with its past administrative practice, that comparisons using weighted-average prices mask dumping. Trade Agreements Resulting from the Uruguay Round of Multilateral Trade Negotiations: Hearings before the Committee on Ways and Means and its Subcommittee on Trade, 103d Cong. 73, at 401 (1994) (statement of Jeffrey E. Gartner, Under Secretary of Commerce for International Trade) ["House Hearings"]. The prevailing view, however, which was made part of U.S. domestic law through the URAA, was that transaction-specific comparisons ran the different risk of amplifying dumping margins. See URAA, Pub.L. 103-465, § 219; 108 Stat. 4855-57 (1994).
During the Uruguay Round meetings, the U.S., out of concern that targeted dumping might be masked by weighted-average to weighted-average comparisons, insisted upon a provision in the international agreement on antidumping permitting the use of individual export prices in investigations when targeting is occurring. House Hearings, at 401. Despite the inclusion of this provision, the fact remains that antidumping law under the URAA instructs Commerce to be more concerned about amplification of dumping margins through the use of transaction-specific prices than about masking them with averaging.[2]Serampore Industries Pvt., Ltd. v. United States, 11 CIT 866, 874, 675 F.Supp. 1354, 1360-61 (1987) (agency practice of excluding non-dumped sales is to prevent a foreign producer from masking dumping) and Drycleaning Machinery from Germany, 56 Fed.Reg. 66,838, 66,840 (Dep't Commerce 1991) (final results of antidumping duty administrative review) (averaging rejected because of masking of dumping), upon which *1227 Borden relies, no longer represent normal practice.
2. Commerce Rejection of Borden's Targeting Allegations
Each of three times Borden submitted a petition alleging targeting, Commerce articulated various reasons for rejecting it. Commerce advised Borden, after its first submission, that targeted dumping analyses should be company-specific, based on product-, not brand-specific calculations, and should use exporter, not retail prices. Memorandum from Team to Barbara R. Stafford (Nov. 8, 1995), at 2, P.R. 440, Pl. Borden's App., Tab 5 at 2. Borden's first revision was criticized for its weak statistical analysis that demonstrated price differences but not a pattern. Memorandum from Team to Barbara R. Stafford (Dec. 8, 1995), at 2, P.R. 507; Pl. Borden's App., Tab 8, at 3. Commerce faulted Borden's second revision for failing to address the statutory criteria of 19 U.S.C. § 1677f-1(d)(1)(B)(ii). Final Determination, 61 Fed.Reg. at 30,329. Specifically, Commerce noted that Borden failed to demonstrate a pattern of significant price differences, predetermined the results through customer groupings, failed to provide benchmark prices, and failed to explain why the demonstrated price differences could not be accounted for by weighted-average comparisons. Id. Commerce thus found the pattern of demonstrated price differences to be "predetermined" by the initial composition of the customer groups, that the domestic industry failed to supply any relevant "benchmark" prices that would demonstrate the "significance" of price variations, and that the analysis did not address the statutory criteria of 19 U.S.C. § 1677f-1(d)(1)(B)(ii). Final Determination, 61 Fed.Reg. at 30,329. Commerce concluded that statistical flaws in Borden's analysis precluded a finding of the requisite pattern of pricing differences indicative of targeting. See id. The record shows Borden failed to remove outliers, Letter from Delverde to Commerce (Dec. 4, 1995), at 6, C.R. Doc. 179; Def.-Int. Delverde's App., at AII-13, presumed the existence of a pattern and manipulated the data to show it, Letter from Borden to Commerce (Feb. 13, 1996), Pub. A.R. 680, Pl. Borden's App., Tab 9, at 7, and failed to standardize the data, for example, by running regressions, to account for or rule out differences that could be explained by factors other than targeted dumping. Borden did not control for volume or customer status. Borden also failed to prove the null hypothesis, which would have shown the intrinsic probability of finding a pattern even where none existed. Instead, Borden simply grouped customers by price and performed univariate and linear modeling procedures. See id.
Borden complains that Commerce rejected its revised petitions, despite Borden having addressed all the concerns Commerce raised regarding Borden's first petition. In raising those concerns, Commerce did not guarantee a particular finding, even upon Borden's strict conformity of its revised petition with Commerce's response. At best, Commerce's criticism of the first petition amounted to an incomplete expression of minimum conditions for an effective petition, not a roadmap toward an affirmative finding.
Commerce found the results in Borden's third petition predetermined because Borden grouped the customers by price and then used statistical methods to show differences in price between the groups. Final Determination, 61 Fed.Reg. at 30,329. Borden understood Commerce as having required such grouping when Commerce instructed Borden not to examine each of the multitude of transactions individually. Pl. Borden's Br. at 26. What Commerce did say was that there was a statutory preference for weighted-average price comparisons and that simple averages might distort where certain individual customers had a great number of transactions. Memorandum from Team to Barbara R. Stafford (Dec. 8, 1995), at 3, P.R. 507, Pl. Borden's App., Tab 8, at 3. Grouping the data by price, Borden's results better reflected its method than the data. Borden's statistical analysis demonstrated the existence of price variation, showing a distribution but not a pattern. See Final Determination, 61 Fed.Reg. at 30,329. Even if Borden had found a pattern, its analytical technique would have been too simple to convey the statistical significance of its findings. Commerce concluded that Borden's petitions failed to show targeting, because *1228 they failed to employ analytical techniques which could have shown it.
Borden did not understand the targeted dumping provision in the statute, in part for the failure to understand what targeting is. Borden considers targeted dumping "the practice of selling to selected customers or regions at different and preferential prices as compared to the prices charged to other customers or regions." Pl. Borden's Br. at 7. Thus, Borden searched for statistical evidence of price variance. By Borden's definition, however, most pricing would constitute targeted dumping, in that there is price variance along multiple dimensions in many markets. Certainly, not all price variation, not even all statistically significant variation, results from targeted dumping. The concept of targeted dumping is that a company might not be able to, or might choose not to, use a dumping strategy toward a whole market but might strategically focus on a more narrowly defined market. Michael Coursey, Comment, in Down in the Dumps, at 240. To ferret out this more complicated dumping, the statute instructs Commerce to look not only at the magnitude of price variance but also for a pattern of significant price differences. 19 U.S.C. § 1677f-1(d)(1)(B)(i). Nonetheless, Commerce failed from the outset to convey standards for satisfying the statute.
Borden also maintains that, contrary to Commerce's view, the weighted-average price Borden submitted was adequate to establish a benchmark price. Commerce appears to have wanted a U.S. price for comparison. Final Determination at 30,329. Using the average for comparison shows only divergence from the average price, highlighting the magnitude of price variation, but not demonstrating a pattern.[3]
Commerce complained that Borden failed to demonstrate that price differences could not be taken into account using weighted-average prices. Borden intended its presentation of the masking effect of averaging to satisfy this requirement. Because Commerce did not understand Borden to have provided evidence of targeting at all, Commerce was not satisfied that Borden had made an adequate showing that the targeting would be masked by averaging.
Even if Commerce accepts Borden's targeted dumping petition, however, the agency would not necessarily err in rejecting transaction-specific methodology. 19 U.S.C. §§ 1677f-1(d)(1)(A)-(B). Commerce "shall [compare] ... the weighted average of the normal values to the weighted average," 19 U.S.C. § 1677f-1(d)(1)(A)(i) (emphasis supplied), but Commerce "may [compare] ... the weighted average of the normal values to the export prices ... of individual transactions for comparable merchandise," 19 U.S.C. § 1677f-1(d)(1)(B) (emphasis supplied). Under the appropriate circumstances Commerce has the discretion to not apply the targeted dumping exception to its normal methodology, even upon a finding of targeted dumping.[4]
3. Commerce Has Not Fulfilled Its Duty to Articulate Standards
Whether Commerce was reasonable or not in thrice rejecting Borden's allegation, *1229 the court finds that in rejecting the targeting petition on methodological grounds, Commerce never reached the question of whether the data submitted by Delverde revealed a pattern of price differences adequate to trigger transaction-specific price comparisons. Commerce concluded merely that methodological inadequacies in Borden's three petitions precluded a finding of targeting based on that methodology. Under the URAA, however, Commerce may not abandon the targeting inquiry simply because of a petitioner's lack of statistical sophistication. See 19 U.S.C. § 1677f-1(d)(1)(B). Despite pointed questioning at oral argument, defendant could not describe in a clear way how targeting could be demonstrated. Commerce has only said what it does not want; it has not made clear what it requires. Thus, the court is not convinced that Commerce is fulfilling its duty to rationally decide whether it should perform a transaction-specific investigation when the statutory prerequisites are met. Indeed, Commerce has not answered several critical questions: What methods could show targeting? By what standards does Commerce evaluate correctly analyzed data? What does Commerce deem a pattern significant enough to constitute evidence of targeting? Would acceptable methods, applied to the Delverde data, reveal targeting?
Commerce failed to articulate the standards by which it would determine that a "pattern of export prices" that "differ significantly" did or did not exist. Id. Commerce was obliged to articulate the standards on which it based its decision. National Steel Corp. v. United States, 18 CIT 1126, 1132-33, 870 F.Supp. 1130, 1136-37 (1994) (remand to Commerce to articulate standards for determining "non-aberrant" margins where agency failed to provide explanation of term). While the negative rationale Commerce gives for rejecting Borden's final petition may be reasonable when viewed in isolation, the demand by the domestic industry for standards is no less reasonable.
The court finds that Commerce erred in failing to articulate the standards by which it will evaluate the targeted dumping petitions. To facilitate future inquiries, Commerce will need at some point to explain what targeted dumping is, what methods will identify or rule out the pricing patterns referred to by the statute, what degree of significance in those patterns will trigger Commerce to exercise its discretion to make a case-by-case determination to depart from its normal methodology, and on what basis it will make that decision. For example, regarding the significance of the pattern, bearing in mind that Congress intended a case-by-case analysis with reference to variations in price sensitivity by industry, SAA at 843, Commerce might suggest a calculus which relates pricing patterns with price elasticity.
In May 1997, Commerce independently announced its intention to issue policy bulletins setting forth specific criteria for targeted dumping "as the Department develops its practice in this area." Antidumping Duties; Countervailing Duties, 62 Fed.Reg. 27,296, 27,374 (Dep't Commerce 1997) (final rule) ["Final Rule"]. Recognizing that Commerce as yet may not be prepared to articulate a methodology to be employed by domestic industries alleging targeting generally, and in light of its expressed intention to issue new regulations, id., the court leaves it to Commerce to decide, on remand, whether to articulate the standards by which it evaluates a domestic industry's targeted dumping petitions, in general or for only this case, or to conduct its own analysis to determine whether there is targeted dumping based on the data submitted by respondent.
The court has considered Borden's assertion that Commerce, not the domestic industry, was obliged by statute to assess whether targeted dumping had occurred and that Commerce therefore improperly shifted its own burden to Borden by denying Borden's petition solely on the inadequacies of Borden's analysis, without itself examining the data to which it had equal access. The government rejoins that Commerce was reasonable in requiring a minimally sufficient allegation of targeted dumping from the domestic industry prior to proceeding with its own inquiry into targeted dumping. The SAA refers to the collection of transaction-specific data "so Commerce may determine ... whether the exception for targeted dumping is applicable." *1230 SAA at 843. This does not clarify whether Commerce would make its determination on the basis of its own or the domestic industry's analysis. The statute is silent in that regard. 19 U.S.C. § 1677f-1(d)(1)(B).
The court will not dictate the division of labor between Commerce and the domestic industry; Commerce is better positioned to decide that issue. In the absence of statutory direction as to the allocation of responsibility between Commerce and the domestic industry in a targeted dumping inquiry, the matter is left to Commerce's discretion to develop some reasonable system. Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus far, Commerce has not clearly explained its allocation of responsibility for performing the targeting analysis. Commerce has recently spoken somewhat mysteriously of the "assistance of the domestic industry." Final Rule, 62 Fed. Reg. at 27,374. Unless Commerce determines that it will perform its own analysis based on the data on hand, Commerce shall specify what burden it assigns petitioners.
4. Pricing Pattern Standards
In a sub-argument relevant to its targeting challenge Borden asserts that Commerce's application of different standards as to targeted dumping and the level of trade ("LOT") adjustment is in error. The court is not convinced that the "rigid" standard employed by Commerce in analyzing the domestic industry's allegations of a pattern of price differences for purposes of targeted dumping and the allegedly inconsistent "liberal" standard applied when analyzing a pattern of export prices in the LOT context taken together constitute error. See Pl. Borden's Br. at 9. Because the domestic industry's allegation of a pattern of price differences to show targeted dumping allegedly "met and surpassed" the standards Commerce accepted as showing a pattern of price differences in its LOT analysis, Borden calls Commerce's decision to accept the pricing patterns for LOT but to reject them for targeted dumping arbitrary and capricious.[5] Pl. Borden's Br. at 10.
Commerce is instructed that a LOT adjustment may be made if the existence of different selling functions "is demonstrated to affect price comparability, based on a pattern of consistent price differences" relating to different selling practices at different levels of trade. 19 U.S.C. § 1677b(a)(7)(A)(ii) (1994) (emphasis supplied).[6] Individual export prices may be used for comparison under the targeted dumping provision if Commerce finds "there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time." 19 U.S.C. § 1677f-1(d)(1)(B)(i).[7] Borden refers to the language of these two statutory directives as "almost identical" and *1231 their application "very different and inconsistent." Pl. Borden's Br. at 9.
In an elaborate, if contradictory, textual analysis, Borden argues that identical words used in different parts of the same statute are intended to have the same meaning. Borden contends that the difference between the "almost identical" provisions is the use of the word "consistent" in 19 U.S.C. § 1677b(a)(7)(ii) and "significantly" in 19 U.S.C. § 1677f-1(d)(1)(B). Relying on the dictionary, Borden argues that the word "consistent" should connote a higher, more rigorous standard than "significant." Significant merely means "a noticeably or measurably large amount" or "caused by something other than mere chance;" whereas consistent means "showing steady conformity." Webster's Ninth New Collegiate Dictionary, at 1096, 280 (1985).
Price differences can be "consistent" without being "significant," as when prices to all end-users exceed all prices to wholesalers by a very small percentage. Likewise, prices can differ "significantly" without doing so "consistently," as in the case of a customer whose price exceeds that of another by 20% one week but is 25% lower the next.
It is correct that where the identical word or phrase is used more than once in the same act, there is a presumption that they have the same meaning. See Sutherland Stat. Const. § 46.06 (5th Ed. 1992) at 119, 120; Cemex, S.A. v. United States, 16 CIT 251, 254, 790 F.Supp. 290, 294 (1992), aff'd, 989 F.2d 1202, 1993 WL 26767 (Fed.Cir.1993) (court may apply parallel constructions where phrase appears more than once in same statutory provision); Champagne v. United States, 35 Fed. Cl. 198, 210 (1996) ("common sense requires that the same words used twice in the same act should have the same meaning."). This rule is tempered, however, by the canon that the same word or phrase can possess different meanings in different contexts. See Cemex, 16 CIT at 254, 790 F.Supp. at 294 ("[w]here, however, the contexts and purposes of the provisions differ, parallel constructions are inappropriate"); New England Telephone and Telegraph Co. v. Public Utilities Commission of Maine, 742 F.2d 1, 7 (1st Cir.1984) (construing the identical word differently because there existed a "sufficient difference in the functions of the two sections to justify assigning a different scope to the same word."), cert. denied, 476 U.S. 1174, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986).
Commerce concedes that different methodologies were used in the LOT adjustment to normal value reported by Commerce in the Final Determination, 61 Fed.Reg. at 30,331, and Commerce's denial of Borden's targeting petition, Pl. Borden's Br. at 30, but that difference was justified and permitted, because the two provisions differ in ways that render the different standards appropriate. The way Commerce treats patterns of price differences for purposes of LOT adjustments is largely irrelevant to a targeted dumping allegation. Moreover, the LOT adjustment inquiry is mandatory and standard, while the targeted dumping provision is guiding and an exception. The standards are understandably different because they were designed for different circumstances, one of which is the norm and the other an exception. The targeted dumping statute, which is labeled "exception," includes the additional requirement that Commerce show why there should be a deviation from the normal procedure. 19 U.S.C. § 1677f-1(d)(1)(B). Commerce "may" deviate from the normal methodology defined in 19 U.S.C. § 1677f-1(d)(1)(A) if the conditions for the exception are met and
the administering authority explains why such differences cannot be taken into account using [the normal, weighted-average to weighted-average or transaction-specific to transaction-specific comparison] a method described in paragraph (1)(A)(i) or (ii).
19 U.S.C. § 1677f-1(d)(1)(B)(ii). This itself justifies application of a stricter standard in that inquiry.
B. Challenge to Offset of the Difference in Commissions in the United States and Foreign Markets.
Pursuant to 19 U.S.C. § 1677b(a)(6)(C)(iii) (1994) and 19 C.F.R. § 353.56(a)(2) (Apr. 1, 1996), Commerce adjusted normal value for differences in the circumstances of sale between sales of pasta *1232 made to the United States and sales made in Italy. See Final Determination Calculation Memorandum (June 3, 1996), P.R. Doc. 848, Def.-Int. Borden's App., Tab 54; Final Margin Computer Printout, at lines 292-95, C.R. Doc. 407, Pl. Borden's App., Tab. 10. Where there were commissions in both markets, the agency did not simply adjust for the difference in commission expenses incurred by adding U.S. direct expenses to and deducting foreign market direct expenses from normal value, but instead added home market indirect selling expenses to home market commissions to offset the additional commissions incurred in selling to the United States. See id.
Commerce's methodology was the same in both the Preliminary and Final Determinations. See Certain Pasta from Italy, 61 Fed. Reg. 1,334, 1,349 (Dep't Commerce 1996) (preliminary determination); Preliminary Determination Calculation Memorandum (Dec. 14, 1995), at 7, Def.-Int. Delverde's App., at A-62.
Although Borden noted, as a clerical error after the Final Determination, Pl. Borden's Reply Br. at 14, that the calculations did not match the Final Determination language, this does not amount to a timely challenge to the actual methodology used. If the language used in the Final Determination is in error, it may be corrected, but the methodology actually employed was set early on and could not be challenged for the first time after the Final Determination. If the challenge had been timely raised, Commerce could have addressed it before the Final Determination. Accordingly, this challenge is rejected for failure to exhaust administrative remedies. 28 U.S.C. § 2637(d) (1994).
II. Delverde
A. Depreciation Recalculation
Facts
Commerce examined Delverde affiliate Tamma's data in the course of evaluating Delverde's costs of production. In 1994, Tamma revised its method of calculating its depreciation to double the useful lives of the company's assets. Tamma Verification Report for Cost of Production and Constructed Value Data (Apr. 19, 1996), at 27-28, Pl. Delverde's App., at AII-1-2. These changes were made for income tax purposes. Final Determination, 61 Fed.Reg. at 30,354. The relevant effect of changing the rate of depreciation of Tamma's productive capital assets is to reflect lower marginal production costs, permitting comparison with lower export or constructed export prices without a finding of dumping.
Commerce rejected the new calculation as not standard for antidumping inquiries and substituted a depreciation calculation consistent with its normal calculation of depreciation in antidumping investigations. Final Determination, 61 Fed.Reg. at 30,354-55. Calculations based on Tamma's calculation allegedly would result in a de minimis dumping margin.
Discussion
The basic rules for the calculation of cost of production, 19 U.S.C. § 1677b(b)(3) (1994), are supplemented by 19 U.S.C. § 1677b(f)(1)(A) (1994), referring specifically to depreciation in the antidumping context.
Costs shall normally be calculated based on the records of the exporter or producer of the merchandise, if such records are kept in accordance with the generally accepted accounting principles of the exporting country (or the producing country, where appropriate) and reasonably reflect the costs associated with the production and sale of the merchandise. The administering authority shall consider all available evidence on the proper allocation of costs, including that which is made available by the exporter or producer on a timely basis, if such allocations have been historically used by the exporter or producer, in particular for establishing appropriate amortization and depreciation periods, and allowances for capital expenditures and other development costs.
19 U.S.C. § 1677b(f)(1)(A). This approach to accounting standards is consistent with pre-URAA practice. SAA at 834. The SAA provides further detail regarding when it may be appropriate for Commerce to reject a reported depreciation, even though the reported depreciation meets the first statutory condition of consistency with home country *1233 accounting standards. Id.; see also 19 U.S.C. § 1677b(f)(1)(A).
In determining whether a company's records reasonably reflect costs, Commerce will consider U.S. generally accepted accounting principles employed by the industry in question. For example, a company's records might not fairly allocate the cost of an asset if a firm's financial statements reflect an extremely large amount of depreciation for the first year of an asset's life, or if there is no depreciation expense reflected for assets that have been idle. In such a situation, it would be appropriate for Commerce to adjust depreciation expenses. Costs shall be allocated using a method that reasonably reflects and accurately captures all of the actual costs incurred in producing and selling the product under investigation or review.
SAA at 834-35; see also Certain Cold-Rolled and Corrosion-Resistant Carbon Steel Flat Products from Korea, 62 Fed.Reg. 18,404, 18,443 (Dep't Commerce 1997) (final results of antidumping duty administrative review) (allocation based on home country accounting practice rejected for not accurately capturing costs). In other words, the SAA counsels Commerce to refer to U.S. GAAP, as employed by the importer's industry generally, as a guide to the reasonableness of the importer's allocations based on home country accounting principles. SAA at 834-35. The SAA further contemplates that Commerce will make adjustments when it concludes that the importer's calculations do not reasonably reflect costs. Id.
In the original investigation, Commerce considered the depreciation methods presented in Tamma's cost of production response. At verification, the Department found that Tamma had replaced its former depreciation schedule, based on industry-specific asset lives authorized under the Italian Civil Code and GAAP, with a new, more tax-beneficial, while still Italian GAAP consistent, depreciation schedule. Final Determination, 61 Fed. Reg. at 30,354.
Commerce rejected Tamma's reported depreciation method, as "contrary to sound accounting principles and the Department's practice." Id. at 30,355. Commerce reasoned that the methodological change "was not the result of new events, changing conditions, experience, or additional information." Id. at 30,354. Instead, Commerce concluded that the change distorted costs for the purposes of an antidumping analysis, and implied that the change was inconsistent with the Italian Civil Code standards for calculating the useful life of assets for the pasta industry. Id. Thus, Commerce substituted a depreciation calculation consistent with its normal practice in antidumping investigations. Id. at 30,333.
Delverde argues that, in rejecting its revised capital asset depreciation expenses, Commerce disregarded its statutory obligation under 19 U.S.C. § 1677b(f)(1)(A) to use a respondent's reported costs where such costs are maintained in conformity with home market GAAP, are according to the company's historical use, and reasonably reflect the cost of producing subject merchandise. Delverde presents the new calculations as historical, alleging that Tamma changed to the new method before the commencement of the antidumping investigation.[8] The home country legality (i.e. conformity with Italian GAAP) of the new calculation is evidenced, according to Delverde, by the approval of Tamma's local auditors. (Of course, they approved the earlier method, selected by Commerce here, as well.) Finally, Delverde argues that the true cost of production is represented by the new calculation because the new method extends the period of depreciation to more closely approximate the age of certain fixed assets associated with production, namely Tamma's decades old pasta factory and wheat mill.[9]
*1234 The court finds the statutory mandate to Commerce under 19 U.S.C. § 1677b(f)(1)(A) to be relatively flexible. The court reads the statutory instruction to clearly state what factors Commerce shall consider but to leave to Commerce's judgment what relative weight and meaning to give them.
First, the question of any alleged bad faith behind Tamma's changed calculation is not at issue here, regardless of whether the change occurred prior to or during the pasta investigation. Questions of timing and motivation simply distract from the central concern, which is the accuracy of the calculations. Commerce's mention of the motivation issue, however, is not reversible error, as that was not the focus of its decision. Commerce could, as it did, find Tamma's tax-based reason to change from an otherwise acceptable useful life to be some evidence of distortion in the absence of evidence of new events, changing conditions, experience, additional information, or a change in underlying economic assumptions which would relate the change to accurate cost accounting. This is not necessarily an additional affirmative legal burden on respondent, though a respondent such as Delverde might find it advisable and persuasive to present an explanation for an otherwise seemingly arbitrary change.
Second, Commerce properly determined that Tamma's calculation was not historical. Delverde wanted Commerce to read "historically" to mean "in the normal course of business," Pl. Delverde's Reply Br. at 13, but Commerce was entitled to do otherwise, provided its interpretation was reasonable. The term historical can be variously understood to mean prior to the period of inquiry, not in immediate anticipation of the investigation, or long-standing industry practice. These variations suggest some ambiguity to the term, leaving Commerce free to choose an interpretation.
Third, the statutory directive is conditional, requiring Commerce to use the company's own calculation only if satisfied with the accuracy of the cost representations they render. The government contends that Tamma calculated the useful life of its assets and then altered that calculation, albeit as allowed by Italian GAAP, rendering the calculations inaccurate. Further, Tamma's auditor's approval of prior use of the calculation Commerce did apply was part of the evidence upon which Commerce could rely reasonably for an accurate reflection of production costs. After weighing the less than clear evidence, Commerce did not agree that Tamma's new calculations accurately reflected its costs. Thus, it was not obliged to accept them, and could resort to the prior figures.
The court finds no error in Commerce's rejection of the new calculation. Commerce was entitled to reject the revision on the basis of its factual findings, namely that the new calculation was not in accord with Tamma's historical practice and did not reflect costs accurately.[10]
B. Level of Trade Adjustment and CEP Offset[11]
Facts
Commerce issued a questionnaire to exporters of pasta from Italy, including Delverde, *1235 requesting information concerning their sales in Italy and the United States from May 1, 1994 through April 30, 1995, and asking the amount, if any, claimed by each responding exporter for the "level of trade" adjustment to normal value authorized by 19 U.S.C. § 1677b(a)(7)(B), along with a statement justifying the claimed amount. Antidumping Questionnaire (July 10, 1995), at B-19, P.R. Doc. 66; Pl. Delverde's App., at A-44. Commerce also asked respondents to report the amount, if any, claimed for the constructed export price offset ("CEP offset") adjustment to normal value authorized by 19 U.S.C. § 1677b(a)(7)(B). Id.
Delverde responded that it claimed a LOT adjustment in the form of a CEP offset pursuant to 19 U.S.C. § 1677b(a)(7)(B), maintaining that it could not quantify price differences attributable to sales at different levels of trade in the Italian home market. Delverde's Questionnaire Response (Sept. 18, 1995), at 18-19, 30-31, P.R. Doc. 273, Def.-Int. Borden's App. Tab 14, Pl. Delverde's App., at A-45-48.
In a letter to all Italian respondents, Commerce asked four questions regarding the requested LOT adjustments and CEP offset. Supplemental Antidumping Questionnaire (Oct. 23, 1995), at 2, P.R. Doc. 359, Pl. Delverde's App., at A-51. Delverde responded only to the fourth question, maintaining that the first three questions pertained only to those requesting LOT adjustments, thus not to Delverde.[12]Letter from Delverde to Commerce (Nov. 6, 1995), at 3, P.R. Doc. 432, Pl. Delverde's App., at A-53, A-55. Delverde explained its inability to quantify price differences by LOT was due to the very small portion of home market sales made at an exfactory LOT. Id. at 5-6, Pl. Delverde's App., at A-57-58.
In its Preliminary Determination, Commerce denied Delverde's requested CEP offset, explaining that "U.S. sales were matched to normal values at the same levels of trade." 61 Fed.Reg. at 1,347. Nonetheless, Delverde was found to have a de minimis dumping margin of .06%. Id. at 1,351. Upon solicitation of its views, Letter from Commerce to Delverde (Jan. 22, 1996), P.R. Doc. 583, Pl. Delverde's App., at A-65, Delverde notified Commerce of its objection to the methodology used in the Preliminary Determination. Letter from Delverde to Commerce (Feb. 5, 1996), at 2-4, P.R. Doc. 636, Pl. Delverde's App., at A-67, A-68-70.
Commerce used a different LOT methodology in the Final Determination, one that considered Delverde's CEP sales to include some selling functions. Final Determination, 61 Fed.Reg. at 30,331, 30,339. On the basis of this analysis, Commerce still concluded that Delverde's U.S. sales and home market sales were made at the same LOT and, again did not grant Delverde's requested CEP offset.[13]Id. at 30,354.
Delverde argues that Commerce erred in concluding that Delverde's CEP sales in the United States were made at the same LOT as sales in Italy, Delverde's home market. Delverde contends that Commerce erroneously attributed selling expenses to Delverde's CEP LOT, expenses which had been excluded previously during the calculation of CEP. The government requests a remand to correct errors in its attribution of selling functions to Delverde's CEP sales for LOT analysis purposes and to reconsider whether Delverde's CEP sales can be matched to home market sales at the same LOT. It also *1236 seeks to reconsider certain adjustments to CEP itself. The parties dispute neither the de minimis volume of ex-factory sales in the home market, nor the difficulty of determining the price effects of different levels of trade in the home market due to the lack of ex-factory sales. Delverde supports remand without a CEP recalculation. Borden opposes remand.
Discussion
1. Level of Trade Statute
Not all differences between export prices and home market prices are the result of dumping. Therefore, Commerce adjusts the prices it compares to tease out other factors, in part through the level of trade adjustment inquiry. See 19 U.S.C. § 1677b(a)(7)(A).
A "level of trade" adjustment to normal value is appropriate when U.S. prices and normal value are compared at different levels of trade, if the different levels of trade involve different selling functions, and price differences attributable to the different levels of trade can be documented. 19 U.S.C. § 1677b(a)(7)(A). In the case of CEP sales, when normal value is determined to be at a more advanced LOT (by stage of distribution) than CEP, but the price effect of the differences in LOT in the home market cannot be determined, a "CEP offset" adjustment is authorized in lieu of a LOT adjustment. 19 U.S.C. § 1677b(a)(7)(B).[14]
2. Commerce's Level of Trade Methodology
Commerce makes certain additions and deductions in calculating normal value, 19 U.S.C. § 1677b(a)(6), and export price or constructed export price, 19 U.S.C. §§ 1677a(c)-(d) (1994). These adjustments are divided into those common to export price and CEP,[15] at 19 U.S.C. § 1677a(c), and those specific to CEP[16] only, at 19 U.S.C. § 1677a(d).[17] The 19 U.S.C. § 1677a(d) deductions *1237 are those associated with the transaction between the affiliated importer and the first unaffiliated purchaser. See 19 U.S.C. §§ 1677a(b), (d).
In the LTFV analysis, Commerce must compare prices that are at the same LOT by adjusting normal value accordingly where sales are at different levels of trade. 19 U.S.C. § 1677b(a)(7). Thus, where Commerce deems sales in the foreign market and sales in the U.S. to have been made at different levels of trade, the statute provides for an additional, LOT adjustment to normal value, 19 U.S.C. § 1677b(a)(7)(A), or for a CEP offset, in the case of a comparison involving CEP sales where normal value is at a more advanced LOT but data about the relationship between LOT and price is inadequate to determine the size of a LOT adjustment, 19 U.S.C. § 1677b(a)(7)(B). Commerce interprets the mandate generally to mean it must examine levels of trade, determining where an adjustment is appropriate through a comparison of the selling functions attributable to the respective sales, the expenses for which are reflected in the starting prices. New 19 C.F.R. § 351.412 provides that where the LOT comparison is between normal value sales and export price sales, i.e. where the first sale in the United States is to an unaffiliated party, for its LOT inquiry, Commerce compares the normal value starting price (i.e. unadjusted price) with the starting export price. Final Rule, 62 Fed. Reg. at 27,414.
In cases involving CEP sales, Commerce tries to approximate the LOT comparison made in export price cases. In cases involving CEP sales, Commerce has, thus, developed the following level of trade methodology. See Def.'s Br. at 69-72. First, beginning with the U.S. starting price used for the constructed export price calculation, Commerce adjusts that price to account for selling expenses in the U.S., making the deductions provided for in 19 U.S.C. § 1677a(d).[18]Id. at 69. Commerce then examines the result to determine its LOT, based on the selling expenses remaining therein. Id. at 70-71.
Next, Commerce determines whether the LOT of the CEP sale is matched by sales at a comparable LOT in the home market. To that end, Commerce examines unadjusted home market (normal value) sales to determine levels of trade. Id. at 71. Because the 19 U.S.C. § 1677a(c) adjustments are of the type that normally apply to all sales,[19] and are not made prior to comparison in the export price cases, Commerce does not make "(c)" adjustments to either price before the final LOT comparison. Because the § 1677a(d) adjustments allegedly will be made to the constructed export price only, 19 U.S.C. § 1677a(d), Commerce does make the "(d)" adjustments prior to the comparison, in an effort to approximate an export price starting price.[20]
If there are no sales in the home market at the same LOT as the "(d)" adjusted CEP sales, Commerce considers making a LOT adjustment, which is an adjustment to normal value intended to offset the price effect of the difference in LOT in the two markets. Def.'s Br. at 71. Commerce determines that levels of trade differ only when sales involve different selling functions and are associated with a consistent pattern of price differences. Id. If home market price data is available but reveals no consistent pattern of price differences, Commerce makes no LOT adjustment. *1238 Id. at 72. Where the data is inadequate to make a determination regarding the pattern of prices, Commerce makes a CEP offset, pursuant to 19 U.S.C. § 1677b(a)(7)(B). Id.
Commerce applied the latter methodology in this case. Final Determination, 61 Fed. Reg. at 30,339 ("[F]or CEP sales, we considered the selling functions reflected in the price after the deduction of expenses ... under [19 U.S.C. § 1677a(d)]"). Making § 1677a(d) deductions prior to the level of trade comparison is Commerce's established methodology. Antifriction Bearings (Other than Tapered Roller Bearings) and Parts thereof from France, Germany, Italy, Japan, Singapore and the United Kingdom, 62 Fed. Reg. 2,081, 2,107 (Dep't Commerce 1997).[21] Commerce's new regulations also embody this practice. New § 351.412(c)(1)(ii) provides that in the case of CEP sales, Commerce will identify levels of trade based on "the starting price, as adjusted under [19 U.S.C. § 1677a(d)]." Final Rule, 62 Fed. Reg. at 27,414.
3. Delverde's Position
In its Motion, Delverde argued that Commerce erroneously concluded that Delverde's CEP was not a price devoid of selling functions, but rather retained the following three selling functions: price lists and/or contracts; inventory services, and freight and/or delivery. At oral argument, defendant conceded that expenses for the three selling functions were deducted from the CEP starting price under 19 U.S.C. § 1677a(d), and were not 19 U.S.C. § 1677a(c) expenses, as Commerce had mistakenly presumed when assessing CEP level of trade.[22]
Delverde argues that CEP is defined as a "price" at a specific LOT (ex-factory), devoid of all selling expenses, U.S. or otherwise, because the statute requires the construction of CEP without any movement costs, commissions, direct selling expenses, costs paid by the seller on behalf of the buyer, or any indirect selling expenses (defined as any expenses not already deducted from the U.S. selling price). 19 U.S.C. §§ 1677a(b)-(d). Delverde therefore believes that Commerce, prior to making the LOT comparison, should make both § 1677a(c) and § 1677a(d) adjustments.[23] According to Delverde, Commerce would then view the LOT of CEP as ex-factory. The fact that only de minimis sales without any selling expenses exist in the home market makes it self-evident to Delverde that its CEP sales had no LOT counterparts, no LOT adjustment could have been quantified, and the LOT of its normal value sales was at a more advanced stage of distribution than that of its CEP sales. Thus, it ostensibly meets the three requirements for granting a CEP offset adjustment, pursuant to 19 U.S.C. § 1677b(a)(7)(B). Commerce allegedly erred in failing to recognize this, attributed selling expenses to Delverde's CEP, and engaged in an "apples to oranges" comparison, resulting in a positive, significant dumping margin. Accordingly, Delverde maintains that Commerce's failure to grant its CEP offset request contravened the "fairness" provision of the statute, 19 *1239 U.S.C. § 1677b(a), and the GATT, Art. 2.4, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, in Final Text of the GATT Uruguay Round Agreements (Apr. 15, 1994) ["Antidumping Code"].[24]
4. Borden's Position[25]
Borden opposes defendant's remand request, arguing that Commerce seeks a remand to perpetuate an unfair, skewed comparison between an adjusted CEP and an unadjusted normal value. Borden denies the import of the distinction Commerce draws between 19 U.S.C. § 1677a(c) and (d) deductions. Borden contends that most selling expenses excluded from CEP before the LOT comparison will subsequently be deducted from normal value. Thus, Borden argues that the comparison is faulty if made after deducting the expenses from one side but before the deduction from the other.
Borden maintains that Delverde has failed to distinguish selling expenses from selling functions, that Delverde's contention is incorrect that all CEP sales have an ex-factory LOT, even though all selling expenses are deducted from CEP during the price calculation. In Borden's view, the inquiry does not ask whether the price to be compared "contains" selling functions but rather whether the sales are at the same or different levels of trade, as defined by the selling functions they embody. CEP, by definition, does not embody any selling expenses, but that implies nothing about the LOT of the underlying sales. Adjustments to the CEP starting price might render a price with no selling expenses, for example, but that may be an adjusted wholesale price or an adjusted retail price. The LOT inquiry thus concerns the LOT of the sales, not of the price. Thus, in Borden's view, the LOT of the CEP sales does not exclude selling expenses, even though selling expenses are deducted in calculating CEP. Borden therefore contends that, while CEP itself excludes selling expenses, in determining the propriety of LOT adjustments or CEP offsets, Commerce correctly examined the selling functions of Delverde's CEP sales.
5. Defendant's Position
After oral argument and rebriefing, Commerce reiterated its request for a remand to revise its LOT analysis by correcting its previous miscategorization of selling expenses deducted under 19 U.S.C. § 1677a(d) during the constructed export price calculation as having been deducted under subsection 1677a(c). Commerce would then reevaluate its LOT adjustment and CEP offset decisions in light of any remaining selling expenses.[26]
As indicated, Commerce bases its decision to adjust the CEP starting price in two statutory provisions: 19 U.S.C. § 1677b(a)(1)(B)(i), which instructs Commerce to calculate normal value "to the extent practicable, at the same level of trade as *1240 the ... constructed export price," and 19 U.S.C. § 1677a(b), which defines "constructed export price" as the affiliate's price in the United States "as adjusted under subsections (c) and (d)."[27] Commerce finds further justification in the SAA for beginning the LOT inquiry with a partially adjusted CEP. SAA at 823. The SAA describes the purpose of the deductions made in the CEP price calculation as converting the affiliate's price into, "as closely as possible, a price corresponding to an export price between non-affiliated exporters and importers." Id.
Defendant rejects Borden's suggestion that Commerce compare levels of trade by evaluating the selling functions in both unadjusted CEP and unadjusted normal value sales. Defendant argues that to do so would mean that the CEP deductions,
cannot create a difference in level of trade between the CEP sales and the originally comparable home market sales. And, without a difference in level of trade, there can be no level of trade deduction and no CEP offset from normal value to account for the disparity created by the CEP deductions.
Def.'s Post-Hearing Reply, at 4. As defendant understands the inquiry, Commerce's methodology, rather than creating an automatic adjustment, preserves the possibility of any adjustment at all.
As interpreted by Borden, the new statutory framework ... precludes any adjustment to normal value that will compensate for the difference in level of trade created by the CEP deductions.
Id. In other words, defendant asserts that deductions specific to CEP starting price intended to correct for the sale to an affiliate, because they are deductions of selling expenses, will change the level of trade of CEP. Moreover, if these are made after the LOT inquiry, there will not be a corresponding LOT adjustment to normal value to counterbalance that deduction. Commerce is concerned that the § 1677a(d) deductions will shift only one side of the balance, requiring a counterbalancing adjustment, and that the LOT adjustment is meant to address that, but cannot if the inquiry is completed before the § 1677a(d) deductions. Thus, to Commerce, failure to make the § 1677a(d) adjustments creates the distortion, not the reverse.
6. The Level of Trade Provision is a Conditional Mandate
The methodology applied in this case, Final Determination, 61 Fed.Reg. at 30,339, and recently promulgated in its rules, Final Rule, 62 Fed.Reg. at 27,414, derives from Commerce's interpretation of 19 U.S.C. § 1677b(a)(7). The Supreme Court in Chevron outlined a two-step inquiry to determine when a court should defer to an agency's statutory interpretation. 467 U.S. at 842, 104 S.Ct. 2778. First the court determines whether the statute is silent or ambiguous. Id. at 842-43, 104 S.Ct. 2778. If the statute is clear, the court does not defer to the agency's interpretation; only if the statute is silent or not clear as to the issue at bar does the court proceed to the second step and ask if the agency's interpretation is reasonable. Id. at 843, 104 S.Ct. 2778. The court does not find statutory silence or ambiguity as to the fundamental matters at issue in this case.
Whatever are Commerce's concerns about a balanced final price comparison, Congress has defined how this particular adjustment will be made. The statute clearly provides for a conditional level of trade adjustment, instructing Commerce to make the adjustment to normal value if various conditions obtains. 19 U.S.C. § 1677b(a)(7). By contrast, the methodology employed by Commerce amounts to an unconditional adjustment in every CEP case.[28] This is clear both in Commerce's actual practice and in defendant's explanation and defense of that practice, as set forth supra.
*1241 Commerce's argument is built both on a misreading of the statute and on the notion that normal value is ultimately unadjusted for "(d)" type expenses. That is, of course, incorrect. Normal value is adjusted for differences in circumstances of sales ("COS"), covering various selling expenses. 19 U.S.C. § 1677b(a)(6)(C)(iii). Under former practice, which included comparison of home market price and exporter's sale price (ESP), there was no statutory adjustment to home market sales for indirect selling expenses. The agency created an automatic ESP offset, which adjusted home market price for indirect expenses attributable to home market sales up to the level of the like ESP deduction. See Smith-Corona Group v. United States, 713 F.2d 1568, 1572, 1573 (Fed.Cir. 1983); 19 C.F.R. § 353.56(b)(2) (1994). This offset does not apply to the normal value CEP comparison. Now, if such expenses relate to selling functions at a more advanced level of trade, that will be revealed in the LOT analysis, and an adjustment may be made. Any adjustment to normal value based on LOT may not be made automatically to adjust for such indirect expenses, but may only be made pursuant to the specific requirements set forth by Congress for a LOT or CEP offset adjustment.[29] 19 U.S.C. § 1677b(a)(7).
The court finds that Commerce's LOT comparison methodology in CEP cases does not comport reasonably with the current statutory scheme. The statute makes no mention of "(d)" type adjustments prior to the LOT analysis. While the definition of CEP in 19 U.S.C. § 1677a(b) refers to CEP as adjusted under subsections (c) and (d), § 1677b(a)(7), providing for the LOT and CEP adjustments, makes no direct reference to any adjustment. The statute instructs Commerce to compare based on differing level of trade of sales in the United States and in the foreign market. 19 U.S.C. § 1677b(a)(7). The statute is not silent as to how Commerce is to contend with differences in the selling functions of these two types of sales. Id. Indeed, the statutory provision for LOT adjustments and CEP offsets themselves accomplish what Commerce purports to do by its particular choice of pre-adjustment in CEP cases. Id. The difference is that Commerce makes the adjustment automatically, while Congress set prerequisites for the adjustment.
Commerce's limited adjustment to price before the LOT analysis contravenes the purpose of the statute. The statute leaves no room for Commerce's ostensible discretion to pre-adjust for selling expenses in the United States through the automatic deduction of § 1677a(d) selling expenses prior to the LOT analysis in all CEP cases.
While 19 U.S.C. § 1677b(a)(7) does not state expressly that the "sales" underlying the prices at issue be analyzed, it is only sales which are at a level of trade and involve selling functions. The statute directs Commerce to first determine what selling activities are involved in demonstrably different levels of trade. 19 U.S.C. § 1677b(a)(7)(A)(i). Then it directs that patterns of normal value "sales" at different levels of trade be analyzed. 19 U.S.C. § 1677b(a)(7)(A)(ii). The natural reading of the statute is that the sales be examined and that other adjustments to price be considered separately. If this cannot be done, Commerce must devise some method other than its current practice, which is inconsistent with 19 U.S.C. § 1677b(a)(7). The method suggested by Delverde is equally distorted. Fully adjusting CEP sales prices has the apparent advantage of at least matching the definition of CEP set forth for price comparison purposes, but doing so creates another automatic CEP offset based on the comparison of a fully adjusted CEP with an unadjusted normal value price. Commerce must focus on differences in selling functions which relate to levels of trade and make the LOT and CEP adjustments only when the statutory conditions are met.
*1242 7. Commerce May Not Recalculate CEP on Remand
The court turns to the question of whether Commerce may reconsider the actual CEP calculation on remand, as opposed to the separate evaluation of the level of trade of CEP sales discussed above, even though no adversary challenged the CEP calculation in this action. After the hearing, the parties were asked to rebrief the issue of Commerce's correct LOT methodology. In its post-hearing submission, Commerce requested a remand not only to reconsider the categorization of expenses as having been made under 19 U.S.C. § 1677a(c) or (d) during the CEP price calculation, but also to revisit the calculation of the constructed export price itself through a reexamination of the § 1677a(d) deductions made to determine whether they did properly relate to selling expenses in the United States.[30]
Delverde and Borden both strongly oppose defendant's suggestion that on remand Commerce might recalculate CEP price. They argue that Commerce cannot revise the CEP calculation on remand, given that no party has challenged it, adding that the calculation was already reconsidered between Commerce's Preliminary and Final Determinations. Final Determination, 61 Fed.Reg. at 30,352. Delverde therefore requests a remand to Commerce which specifically prohibits recalculation of CEP, and Borden continues to oppose any remand whatsoever.
Except as the statutory scheme specifically so provides, an agency may not, sua sponte, re-open an investigation for which it has made and publicized a final determination, disturbing the finality of its own decision. An agency cannot disturb the finality of its determinations, Badger-Powhatan v. United States, 10 C.I.T. 241, 245, 633 F.Supp. 1364, 1369 (1986), except where a mistake has been shown, American Trucking Ass'n v. Frisco Transportation Co., 358 U.S. 133, 145, 79 S.Ct. 170, 3 L.Ed.2d 172 (1958). Here, neither the opposing parties nor the government made any specific representation that Commerce erred in its original CEP calculation; Commerce merely seeks an additional review of the calculation made with an opportunity to rethink and revise. On remand, Commerce may not revisit the question of the CEP calculation.
The court therefore remands to Commerce to apply a level of trade methodology in conformity with the statute governing this case. Commerce's new methodology should incorporate certain guiding principles. The aim of the LOT inquiry must be to assist in making a fair comparison between home market and U.S. pricing. The steps of the inquiry should be analytically-based and not merely map the methods used in export price cases. The outcome must be conditioned on the terms of the statute. The inquiry must concern all types of selling functions related to levels of trade, not simply those functions' associated with deductible selling expenses. Thus, the LOT inquiry must be analytically distinct from the price calculation itself. In applying the new methodology to this case, the court specifically instructs Commerce not to recalculate CEP.
III. De Cecco's Margin Established by Total Facts Available.
Facts
On October 25, 1995, Commerce initiated a cost of production investigation of De Cecco with regard to the establishment of normal value. Initiation of Cost Investigation (Oct. 25, 1995), at 1, P.R. Doc. 383, Pl. De Cecco's App. Vol. I, Tab 10. The original questionnaire response deadline was November 8, 1995. Id. De Cecco requested an extension of time to respond because it was involved in two other investigations; because it had "no formal cost accounting system that tracks costs as required by the Department," translation requirements, and a very large data set; and because its computer materials were incompatible with Commerce's requests. Letter from De Cecco to Commerce (Oct. 27, 1995), at 1-2, P.R. Doc. 407, Pl. De Cecco's App. Vol. I, Tab 11; Letter from De Cecco to *1243 Commerce (Oct. 30, 1995), at 1-2, P.R. Doc. 413, Pl. De Cecco's App. Vol. I, Tab 12. An extension until November 16, 1995 was granted for De Cecco to respond to Section D of Commerce's supplemental questionnaire. Letter from Commerce to De Cecco (Oct. 31, 1995), at 1, P.R. 417, Pl. De Cecco's App. Vol. I, Tab 13.
On November 6, 1995, in a response to Sections A, B, and C of Commerce's supplemental questionnaire, De Cecco also stated that it "does not have a `cost accounting system' separate from its financial accounts and does not develop fully absorbed product costs, product by product, in the normal course of business." De Cecco's Response to Supp. Quest. §§ A, B, and C (Nov. 6, 1995), at 42, P.R. Doc. 437, Pl. De Cecco's App. Vol. I, Tab 14.
On November 13, 1995, De Cecco asked for another extension, citing its "small staff." Letter from De Cecco to Commerce (Nov. 13, 1995), at 4, P.R. 454, Pl.'s App. Vol. I, Tab 15. The request was denied, and De Cecco filed its cost questionnaire response on November 27, 1995, stating that "De Cecco has developed standard yields and process times as a basis for a standard cost system." De Cecco's Response to Supp. Quest. § D (Nov. 27, 1995), at D-23, C.R. 172, Pl.'s App. Vol. II, Tab 43, at D-23. De Cecco used these yields and process times "to develop the model-specific costs reported for COP and CV." Id. Further, "costs were accumulated based on these standards, then adjusted to actual costs. The full product detail from the standards was used to allocate costs to product." Id.
Because of the complexity of the investigation, both the Preliminary and Final Determinations were delayed. See Letter from De Cecco to Commerce (Jan. 31, 1996), at 2-3, P.R. Doc. 619, Pl.'s App. Vol. I, Tab 24, at 2-3. In the Preliminary Determination, De Cecco received a facts available margin of 46.67%, based on an average of the margins stated in the notice of initiation, which were based on petition information. 61 Fed.Reg. at 1,345. This resulted from, among other things, De Cecco's incomplete questionnaire response regarding affiliates, id., specifically its late identification of a company, De Cecco Moline de Pastificio Pescara ("Pescara"), which has family owners in common with De Cecco, Pl. De Cecco's Br. at 6.
After the Preliminary Determination, Commerce issued a deficiency questionnaire, seeking information about the cost methodology used in De Cecco's Dec. 6, 1995, submission. Letter from Commerce to De Cecco (Jan. 11, 1996), at 1, C.R. Doc. 222, Pl. De Cecco's App. Vol. II, Tab 47, at 1. De Cecco still owed Commerce a reconciliation of total costs to financial statements and computer cost data which included Pescara. Id.
After hiring new consultants to generate better cost data, De Cecco was unable to meet the February 2, 1996, deadline for its corrections to its home market sales computer tape. Letter from De Cecco to Commerce (Jan. 31, 1996), at 1-2, P.R. Doc. 619, Pl. De Cecco's App. Vol. I, Tab 24, at 1-2. De Cecco received permission to file its computer data on February 6, 1996, Letter from Commerce to De Cecco (Feb. 1, 1996), at 1, P.R. Doc. 622, Pl. De Cecco's App. Vol. I, Tab 25, but its narrative was still due on February 2, 1996. Letter from De Cecco to Commerce (Jan. 11, 1996), C.R. Doc. 222, Pl. De Cecco's App. Vol. II, Tab 47. The narrative response, which was timely filed, De Cecco's Resp. to Supp. Quest. (Feb. 2, 1996), at 1, C.R. Doc. 237, Pl. De Cecco's App. Vol. IV, 1, did not respond directly to Commerce's deficiency questions, because it contained a new approach to costing, which De Cecco stated was more consistent with actual experience than the costs based on "production standards." Id. at Ex. SC-2, at 1; Pl. De Cecco's Br. at 17.
When submitting its computer tapes on February 6, De Cecco also sent corrections to its February 2 narrative. Letter from De Cecco to Commerce (Feb. 6, 1996), C.R. Doc. 251, Pl. De Cecco's App. Vol. III, Tab 48. De Cecco attempted to make further corrections on February 7. See Commerce's Mem. to File (Feb. 16, 1996), at 3, P.R. Doc. 695, Pl. De Cecco's App. Vol. I, Tab 32.
On February 8, petitioners asked Commerce to cancel De Cecco's verification. Letter from De Cecco to Commerce (Feb. 8, 1996), at 1, P.R. Doc. 660, Pl. De Cecco's *1244 App. Vol. I, Tab 27. Commerce met with De Cecco's counsel on February 9 and posed questions about De Cecco's changed data. De Cecco timely responded that same day and included further corrections to its data. De Cecco's Resp. to Supp. Quest. (Feb. 9, 1996), C.R. Doc. 263, Pl. De Cecco's App. Vol. III, Tab 49. De Cecco continued to seek a postponement for submission of its reconciliation statement. See Letter from De Cecco to Commerce (Feb. 12, 1996), C.R. Doc. 270, Pl. De Cecco's App. Vol. III, Tab 50. The reconciliation was finally filed on February 13, 1996. See Final Determination, 61 Fed. Reg. at 30,327.
A February 16, 1996, memorandum from Commerce's Office of Accounting, Commerce's Mem. to File (Feb. 16, 1996), at 3, P.R. Doc. 695, Pl. De Cecco's App. Vol. I, Tab 32, noted basically the same deficiencies in the February 2, 1996, data as were noted by petitioner in its February 8, 1996 request to cancel verification. Letter from Borden to Commerce (Feb. 8, 1996), P.R. 660, Pl. De Cecco's App. Vol. I, Tab 27. Commerce seemed unprepared to deal with De Cecco's corrections and change in cost data. Because Commerce found the data submitted to be both late and untrustworthy, and verification was scheduled for February 19, 1996, Commerce decided to resort to total facts available. See Commerce Mem. to File (Feb. 15, 1996), P.R. Doc. 686, Pl. De Cecco's App. Vol. I, Tab 30. The 46.67% facts available margin from the Preliminary Determination, 61 Fed.Reg. at 1,345, was adopted in the Final Determination. 61 Fed.Reg. at 30,329.
Discussion
What is clear from this brief summary of the facts is that De Cecco did not submit all of the information requested by Commerce in a timely manner. Under prior law, this might have been sufficient for Commerce to immediately cancel verification and switch to surrogate information. This is no longer the case. Under current law, Commerce must make a series of determinations.
In 1994, 19 U.S.C. § 1677e(a) (1988), was amended by the URAA, Pub.L. 103-465, § 231(c) (1994), to conform to the requirements of Article 6.8 and Annex II of the Agreement on Implementation of Article VI of the GATT 1994 ("AD Agreement"). 19 U.S.C. § 1677e(a) (1994); Article 6.8 and Annex II, Best Information Available in Terms of Paragraph 8 of Article 6, in Final Text of the GATT Uruguay Round Agreements (Apr. 15, 1994), at 154, 168 ["GATT Annex II"]. The statute now provides as follows:
(a) In general. If -
(1) necessary information is not available on the record, or
(2) an interested party or any other person -
(A) withholds information that has been requested by the administering authority or the Commission under this subtitle,
(B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of [19 U.S.C. § 1677m],
(C) significantly impedes a proceeding under this subtitle, or
(D) provides such information but the information cannot be verified as provided in [19 U.S.C. § 1677m(i)],
the administering authority and the Commission shall, subject to [19 U.S.C. § 1677m(d)], use the facts otherwise available in reaching the applicable determination under this subtitle.
19 U.S.C. § 1677e(a) (1994).
Thus, the statute, as amended, mandates that the Department "shall" use facts available where necessary information is not available, 19 U.S.C. § 1677e(a)(1), or in any of four other instances described in 19 U.S.C. §§ 1677e(a)(2)(A)-(D). Those four instances are where (A) a party withholds information, (B) a party fails to provide information within the time or in the form and manner requested, (C) the party significantly impedes the investigation, or (D) the information cannot be verified. Subsection § 1677e(a) provides that in every instance the use of facts available shall be subject to 19 U.S.C. § 1677m(d) (1994). 19 U.S.C. § 1677e(a). It also provides, in the case of a failure to provide information within the time or in the form or manner requested under 19 U.S.C. *1245 § 1677e(a)(2)(B), that the use of facts available shall also be subject to 19 U.S.C. § 1677m(e) (1994). 19 U.S.C. § 1677e(a).
In this case, the Department relied on 19 U.S.C. § 1677e(c)(2)(B), failure to provide information within the time or in the form and manner requested.[31] Thus, this was not a case in which Commerce determined that the basis for utilization of facts available is that De Cecco "withheld information," 19 U.S.C. § 1677e(a)(2)(A), or "impeded" the investigation, 19 U.S.C. § 1677e(a)(2)(C), or in which information "cannot be verified," 19 U.S.C. § 1677e(a)(2)(D). Because the Department's determination was based on 19 U.S.C. § 1677e(a)(2)(B), its decision whether to use facts available was subject to 19 U.S.C. §§ 1677m(d) and (e).
Under the new statutory scheme, 19 U.S.C. § 1677m is designed to prevent the unrestrained use of facts available as to a firm which makes its best effort to cooperate with the Department. This section was enacted, as part of the URAA, Pub.L. 103-465 § 231, to implement portions of Annex II to the AD Agreement, which provides, in part, that information which "may not be ideal" should not be disregarded if the party "has acted to the best of its ability." GATT Annex II, section 5, at 168.
The key provisions of 19 U.S.C. § 1677m for this case are subsection (d), regarding "deficient submissions," and subsection (e), regarding "use of certain information." Subsection (d) reads as follows:
(d) Deficient submissions. If the [Department] ... determines that a response to a request for information under this subtitle does not comply with the request, the [Department] ... shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews under this subtitle. If that person submits further information in response to such deficiency and either -
(1) the [Department] ... finds that such response is not satisfactory, or
(2) such response is not submitted within the applicable time limits,
then the [Department] ... may, subject to subsection (e) of this section, disregard all or part of the original and subsequent responses.
19 U.S.C. § 1677m(d) (emphasis supplied). Subsection (d) thus requires that a party be given an opportunity to remedy or explain deficient submissions. Id. If the remedy or explanation is "not satisfactory" or is untimely, the information may be disregarded, subject, however, to a five-part test contained in subsection (e). 19 U.S.C. § 1677m(e).
Subsection (e) may require use of the respondent's information notwithstanding that a remedy or explanation is unsatisfactory. Id. Subsection (e) reads as follows:
(e) Use of certain information. In reaching a determination under ... [19 U.S.C. § 1673d] the [Department] shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the [Department], if -
(1) the information is submitted by the deadline established for its submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination,
(4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the [Department] with respect to the information, and
*1246 (5) the information can be used without undue difficulties. (emphasis supplied.)
19 U.S.C. § 1677m(e).
Thus, under subsection (e), even if the initial information submitted is "deficient", and even if, after an opportunity to "remedy or explain," the Department finds the information "not satisfactory," it still must use the information, rather than facts available, so long as the criteria of subsection (e) have been met. Id.
Although Commerce appears to have taken a strict approach to subsection (e), the court cannot say it unreasonably resorted to total facts available. Data was submitted late. Final Determination, 61 Fed.Reg. at 30,327. Commerce had genuine concerns about the lack of complete data, particularly the reconciliation statement, and genuine fears that it could not prepare for a thorough verification because of the continual changes to De Cecco's data. Id. Thus, at this stage, the court does not reach the issue of whether De Cecco supplied information "to the best of its ability" or whether its data was reliable. The court does find that Commerce was not required to conduct a verification for De Cecco. The next issue is what data could be used for De Cecco.
The court concludes that Commerce's stated concern that ranged data for other parties could not be used to establish normal value for De Cecco because of product mix is somewhat undermined by its disregard of exact product mix in other facets of the investigation. See id. at 30,329. Given that De Cecco had some of the highest U.S. prices,[32] and given the allegation of home market sales below cost of production, however, verification of De Cecco's home market costs was essential and use of ranged data for normal value became problematic. Thus, resort to total facts available, i.e., a substitute margin, was permissible. Id. at 30,328-29. Where Commerce appears to have erred is in its automatic resort to adverse information once it decided De Cecco did not comply with its requests.
As noted above, the Department based its determination that it must use facts available on 19 U.S.C. § 1677e(a)(2)(B), finding that "De Cecco failed to provide its COP information by the deadlines established or in the form and manner requested." Final Determination, 61 Fed.Reg. at 30,329. Section 1677e contains two additional provisions, subsections (b) and (c), which come into play once the determination is made that the use of facts available is required. 19 U.S.C. § 1677e. Subsection (b) permits an adverse inference if the Department can make the additional finding that the "party has failed to cooperate by not acting to the best of its ability to comply." 19 U.S.C. § 1677e(b). It reads, in part, as follow:
(b) Adverse inferences. If the [Department] ... finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information ..., [the Department,] in reaching the applicable determination under this subtitle, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.
Id. (emphasis supplied). Here, the Department did not make the required additional finding that De Cecco had failed to act to the best of its ability. Final Determination, 61 Fed.Reg. at 30,329. In essence, it simply repeated its 19 U.S.C. § 1677e(a)(2)(B) finding, using slightly different words:
De Cecco's failure to provide complete and accurate information in a timely manner and its failure to clarify inconsistencies in its submissions to the record demonstrate that De Cecco has failed to cooperate to the best of its ability in this investigation.
Id.
Commerce seems to have leaped to the conclusion that De Cecco willingly did not comply and to have misapprehended, or not adequately considered, De Cecco's repeated statements that it did not have a cost accounting system; it was merely trying to develop one. Letter from De Cecco to Commerce (Oct. 27, 1995), at 7, P.R. Doc. 407, Pl. *1247 De Cecco's App. Vol. I, Tab 11; see also Letter from De Cecco to Commerce (Oct. 30, 1995), at 2, P.R. 413, Pl. De Cecco's App., Vol. I, Tab 12. Whether or not De Cecco should have tried to completely change its cost methodology after it discovered problems with its first approach is a question of judgment. Commerce and petitioners seem to suspect that De Cecco changed methods not because it contained errors, but because the first system was unfavorable to it. Commerce, however, never made that finding. It stated De Cecco did not timely explain changes that were favorable to it and in the end, it simply found De Cecco did not comply. Final Determination, 61 Fed.Reg. at 30,328; Letter from Commerce to De Cecco (Nov. 22, 1995), at 1-2, P.R. Doc. 467, Pl. De Cecco's App. Vol. I, Tab 16.
De Cecco provided a huge volume of data which it continually had to adjust, at least partially because its cost accounting system was a work in progress and time limits were short. Letter from De Cecco to Commerce (Oct. 27, 1995), P.R. Doc. 407, Pl. De Cecco's App. Vol. I, Tab 11. Commerce has articulated no reason for finding De Cecco's failure was an unwillingness, rather than simply an inability, to cooperate, other than vague hints that De Cecco was "cooking the books." Commerce must revisit this issue. Given the history of De Cecco's numerous communications, explanations, and submissions to Commerce, if there is no evidence to support a finding that De Cecco could have provided all the information Commerce wanted in a timely manner, Commerce may not draw an adverse inference. In such a case, Commerce must use whatever information it has that can best provide a surrogate margin for estimated deposit purposes.
Furthermore, the rate selected by Commerce does not appear to be a margin which is usable, whether or not an adverse inference may be drawn as to De Cecco. Petitioner's margins, while largely based on public data, have not been shown to be reliable. Commerce determined in the period between the Preliminary Determination and Final Determination that the petition margins were high for all parties whose data was verified. Commerce cannot use information which has been thoroughly discredited. Cf. D & L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed.Cir.1997) (Under less rigorous predecessor statute, Commerce could not use margin as best information available which court had rejected). De Cecco was a high end producer. Other high end producers had very low margins, and even low end producers had margins substantially under the petition margins. Final Determination, 61 Fed.Reg. at 30,329-30. The possibility does exist that De Cecco's "true" margin may be in the very high range selected by Commerce, because that possibility cannot be eliminated without verification of De Cecco's own data. Commerce concludes from this mere possibility, that it is probable that an appropriate margin is in that range. There is simply nothing to support such an inference. Accordingly, if Commerce properly draws an adverse inference, it may use the highest verified margin of 21.34%, as, under these facts, even that margin is very likely to be adverse to De Cecco. If Commerce does not draw an adverse inference, it may apply a lower rate, including the all others' rate.
The parties also disagree as to whether petitioner's data in the petition is corroborated by independent data, as required by 19 U.S.C. § 1677e(c) (1994).[33] The court doubts that Congress intended that any generally available published data is "self-corroborating," as defendant claims. See Def.'s Br. at 66. The sense of the statute is that even where the petition is based on apparently reliable public data, if it is called into question by Commerce's investigation, as is the data here, the petition data must be corroborated by data apart from itself. 19 U.S.C. § 1677e(c). Under the facts of this case, the petition margins are not corroborated. As *1248 there are other suitable margins available for use in this case, Commerce cannot revert to the petition information under a claim of necessity. The margin selected by Commerce is neither based on corroborated data nor supported by substantial evidence. It may not be utilized.
Commerce shall make findings as to whether De Cecco acted to the best of its ability. Following that determination, it shall draw appropriate inferences and select a margin based on facts available, either adverse or not adverse, as required by the inference drawn.
Conclusion
For the foregoing reasons, the court remands this matter to Commerce to continue its targeted dumping inquiry either by articulating general or case-specific standards and permitting Borden to resubmit its targeting allegation pursuant to such standards, or by examining the Delverde data itself to determine whether an analysis based on transaction-specific prices is appropriate. Borden's challenge to Commerce's commission offset methodology is denied as untimely. Likewise affirmed is Commerce's depreciation calculation substituted for Delverde affiliate Tamma's own revised calculation. The court remands to Commerce to revise its level of trade methodology under 19 U.S.C. § 1677b(a)(7), consistent with this opinion, without recalculating constructed export price. Finally, Commerce is to evaluate whether De Cecco cooperated to the best of its ability, and select a new dumping margin for De Cecco.
Remand results are due within 60 days. Objections are due 20 days thereafter, responses 11 days thereafter.
NOTES
[1] Targeted dumping is the practice of systematically selling below cost to selected customers or regions or at selected times, as compared with the at- or above-cost prices charged to other customers or regions or at other times. See 19 U.S.C. § 1677f-1(d)(1)(B).
[2] Borden makes various other arguments. Ignoring the requirements of the statute, Borden argues that Commerce should use transaction-specific price comparisons because foreign companies are required to report transaction-specific data. See SAA at 843. Thus, Commerce would only need to program its computer appropriately. Similarly, Borden argues that the basic goal of the antidumping law is to calculate dumping margins "as accurately as possible," see Magnesium Corp. of America v. United States, 938 F.Supp. 885, 902 (C.I.T.1996) (quoting Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990)), and that failure to examine individual export prices where targeting has occurred is inconsistent with that purpose. Such a statement may be accurate but begs the question of whether targeting occurred. As already explained, the law no longer mandates the use of transaction-specific data just in case targeting has occurred, rather the reverse. Where there is no finding of targeting, the statute directs Commerce to use weighted-average prices, notwithstanding their potential masking effect.
[3] Borden also contends that Commerce erred in failing to examine the nature of the pasta industry to determine the significance of the pricing patterns in that context. The legislative history does reveal an intent that Commerce examine targeted dumping "on a case-by-case basis, because small differences may be significant for one industry or one type of product, but not for another." SAA at 843. Borden contends that, as a fungible commodity, pasta is particularly price sensitive, meaning small differences in price are significant. Therefore Commerce's failure to examine pasta price differences in light of the industry could distort their importance. This argument is premature; no pattern has been identified, the magnitude of which Commerce might need to consider in the context of industry pricing.
[4] Borden also maintains that the legislative history reveals a preference, within this discretion, for transaction-specific comparisons.
The statute and the SAA set forth the congressional intent that Commerce rely on transaction-specific U.S. prices rather than average U.S. prices where targeting occurs so that actual margins of dumping are not masked by the use of averaging.
Pl. Borden's Br. at 7. However, granting Commerce the discretion to choose, in certain cases, to employ transaction-specific methods and then only with an explanation of the use of the exceptional practice far from implies a congressional preference for it.
[5] Borden also objects that in the LOT context Commerce "independently investigated aggregate sales information to determine whether a pattern of price differences existed...." Pl. Borden's Br. at 9. Borden's division of labor argument has already been addressed in the previous section.
[6] The statute provides, in relevant part:
(A) The price described in paragraph (1)(B) shall also be increased or decreased to make due allowance for any difference (or lack thereof) between the export price or constructed export price and the price described in paragraph (1)(B) ... that is shown to be wholly or partly due to a difference in level of trade between the export price or constructed export price and normal value, if the difference in level of trade
(i) involves the performance of different selling activities; and
(ii) is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined.
19 U.S.C. § 1677b(a)(7)(A) (emphasis supplied).
[7] The statute provides, in relevant part:
(B) Exception
The administering authority may determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise, if
(i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time ...
19 U.S.C. § 1677f-1(d)(1)(B) (emphasis supplied).
[8] Borden contests whether the changes were indeed made prior to the investigation, in light of the particularities of Tamma's financial schedule. The investigation began in May 1, 1994, and Tamma's calculations had to be made in June 1994, effective at the earliest December 1994. Borden's Resp. Br. at 85 fn. 287.
[9] The ages noted are [] and [] years, respectively. The changed calculation, as Borden notes, was applied not only to Tamma's factory buildings, but to all of its assets, including manufacturing equipment. Final Determination, 61 Fed. Reg. at 30,354. Delverde responds that Tamma's other machinery was of comparable age. Pl. Delverde's Reply Br. at 14.
[10] Delverde also suggests that Commerce diverged from its own historical practice. The cases Delverde cites in which Commerce used depreciation calculations consistent with foreign GAAP do not in any way contradict the agency's refusal to do so where it deems they misrepresent costs. See Small Diameter Circular Seamless Carbon and Alloy Steel, Standard, Line and Pressure Pipe from Italy, 60 Fed.Reg. 31,981 (Dep't Commerce 1995) (final determination); see also Canned Pineapple Fruit from Thailand, 60 Fed. Reg. 29,553 (Dept. Commerce 1995) (final determination).
[11] As requested by the court at the hearing, on October 3, 1997, within the time permitted, the government submitted a supplemental brief addressing the CEP offset issue. Delverde and Borden responded to the government's submission, filing on October 15, 1997 and October 20, 1997, respectively, also within the time indicated by the court. On November 17, 1997, the government filed a Motion for Leave to File an attached reply to Borden's response, as per USCIT Rules 6 and 71. On December 2, 1997, Borden opposed the government's Motion and filed its own Motion for Leave to File a surreply to the government's reply, in the event that the court should grant the government's Motion. The late filing of the government's reply has inconvenienced the court and the other parties. This is, however, an issue of statutory interpretation which may have precedential import. Thus, it is in the interest of the court to hear all the parties' arguments expressed as thoroughly and clearly as possible. Both the government's reply and Borden's surreply are allowed.
[12] Delverde should have answered all of Commerce's questions, given that the CEP offset is a variation on the LOT adjustment, one which requires Commerce to proceed with the same LOT analysis until the last step. Borden does not appear to be correct, however, in its contention that Delverde's alleged lack of cooperation contributed to Commerce's decision to deny the offset.
[13] On the basis of our analysis of its selling functions we conclude that Delverde's U.S. sales and home market sales are made at the same level of trade.... Accordingly, we did not grant Delverde's request for a CEP offset in our final determination.
Id., 61 Fed.Reg. at 30,354.
[14] 19 U.S.C. § 1677b(a)(7) provides, in relevant part:
(A) Level of Trade
[Normal Value] shall also be increased or decreased to make due allowance for any difference (or lack thereof) between the export price or constructed export price and [Normal Value] (other than a difference for which allowance is otherwise made under this section) that is shown to be wholly or partly due to a difference in level of trade between the export price or constructed export price and normal value, if the difference in level of trade
(i) involves the performance of different selling activities; and
(ii) is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined.
...
(B) Constructed export price offset
When normal value is established at a level of trade which constitutes a more advanced stage of distribution than the level of trade of the constructed export price, but the data available do not provide an appropriate basis to determine under subparagraph (A)(ii) a level of trade adjustment, normal value shall be reduced by the amount of indirect selling expenses incurred in the country in which normal value is determined on sales of the foreign like product but not more than the amount of such expenses for which a deduction is made under section 1677a(d)(1)(D) of this title.
[15] Appropriate common adjustments may include increases to account for packing costs, duty drawback, and countervailing duties to offset export subsidies and/or reductions to account for movement costs, U.S. import duties and any export taxes or other charges imposed on the exportation of the merchandise. 19 U.S.C. § 1677a(c).
[16] Constructed export price is defined as,
the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d) of this section.
19 U.S.C. § 1677a(b) (1994).
[17] These are:
(1) the amount of any of the following expenses generally incurred by or for the account of the producer or exporter, or the affiliated seller in the United States, in selling the subject merchandise (or subject merchandise to which value has been added)
(A) commissions for selling the subject merchandise in the United States;
(B) expenses that result from, and bear a direct relationship to, the sale, such as credit expenses, guarantees and warranties;
(C) any selling expenses that the seller pays on behalf of the purchaser; and
(D) any selling expenses not deducted under subparagraph (A), (B), or (C);
(2) the cost of any further manufacture or assembly (including additional material and labor) ...; and
(3) the profit allocated to the expenses described in paragraphs (1) and (2).
19 U.S.C. § 1677a(d).
[18] There is some debate as to whether making these deductions actually simulates export price, that is, the "(d)" type deductions may include items that are also in export price.
[19] See 19 U.S.C. § 1677b(a)(6) adjustments to normal value.
[20] Defendant explains that,
the adjustments Commerce makes to the CEP starting price pursuant to section 1677a(d) typically change the level of trade. By deducting the section 1677a(d) expenses prior to performing the level of trade analysis, Commerce is making it possible to identify the same level of trade for comparable EP and CEP transactions.
Def.'s Post-Hearing Submission, at 5.
[21] This is not Commerce's first opportunity to articulate its methodology. Commerce explained itself in Antifriction Bearings.
The statutory definition of "constructed export price" ... indicates clearly that we are to base CEP on the U.S. resale price as adjusted for U.S. selling expenses and profit. As such, the CEP reflects a price exclusive of all selling expenses and profit associated with economic activities occurring in the United States. These adjustments are necessary in order to arrive at, as the term CEP makes clear, a "constructed" export price. The adjustments we make to the starting price, specifically those made pursuant to [19 U.S.C. § 1677a(d)] ... normally change the level of trade. Accordingly, we must determine the level of trade of CEP sales exclusive of the expenses (and concomitant selling functions) that we deduct pursuant to this sub-section.
Id. (citation omitted).
[22] The error may have been due to the term "freight and/or delivery" which suggests "(c)" movement costs and not the arranging of transportation of goods by the producer or agent under "(d)".
[23] Delverde agrees with defendant that Commerce is right to deduct from CEP before the comparison, but maintains that Commerce should have deducted both § 1677a(c) and § 1677a(d) expenses. For the purpose of the instant inquiry, on these specific facts, however, Delverde is willing to accept deduction of only the § 1677a(d) expenses and therefore supports Commerce's remand request.
[24] To make a fair comparison CEP sales and home market sales must be compared at the same LOT. Article 2.4 of the Antidumping Code states, in relevant part:
(2.4) A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level .... Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including ... levels of trade ... which are ... demonstrated to affect price comparability.... If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price....
Id. (emphasis supplied). Although the court does not apply GATT, Delverde appeals to the provisions of the Antidumping Agreement when interpreting U.S. law, because the URAA is meant to conform U.S. antidumping law to the GATT.
[25] Borden portrays Commerce's denial of Delverde's requested CEP offset as a variant of a "Facts Available" determination, pursuant to 19 U.S.C. § 1677e (1994), or as an appropriate punishment for Delverde's alleged willful refusal to cooperate during the LOT inquiry. This view is inconsistent both with Commerce's stated reason for denying Delverde's CEP offset, that it found no difference in LOT between U.S. and Italian sales, Final Determination, 61 Fed.Reg. at 30,354, and with Commerce's request for a remand to correct errors made in applying its CEP LOT methodology.
[26] Whether Commerce might also, as suggested in defendant's post-hearing submissions, reconsider the calculation of CEP itself on remand is discussed infra.
[27] This provision is not supportive of Defendant's position because Commerce does not make all adjustments before the comparison, but rather only subsection (d) adjustments.
[28] Missing the point that the pre-adjustment itself creates the automatic CEP offset, the defendant counters this claim by citing instances in which Commerce rejected claimed CEP offsets or made LOT adjustments instead. Those cases are not persuasive, because those offsets or adjustments amount to additional offsets or adjustments under Commerce's current methodology.
[29] The court does not reach the issue of what is covered by a COS adjustment under the new statute, although 19 C.F.R. § 351.410 states that it covers, except for commissions, only direct and assumed selling expenses. Nor does the court resolve the broader issue of whether all indirect expenses are accounted for elsewhere. If Congress' specific words have created what may seem to be an imbalance in final price comparisons, only Congress can rectify the problem. Neither the court nor Commerce may rewrite the statute.
[30] If it is true that an erroneous view of "(d)" deductions has skewed Commerce's view of LOT analysis, it may not rely on that as a reason to bend the LOT statute. If something is amiss with Commerce's definition of "(d)" adjustments it may attend to that in future cases or where a challenge to the "(d)" adjustment is made.
[31] [T]he Department determined that De Cecco failed to provide its COP information by the deadlines established or in the form and manner requested. [19 U.S.C. § 1677e(a)] thus required the Department to use the facts available.... Final Determination, 61 Fed.Reg. at 30,328-29.
[32] Ranged data for normal value would include high and low prices. When compared with high U.S. prices for De Cecco, zero or low margins would naturally result, to De Cecco's benefit.
[33] 19 U.S.C. § 1677e(c) provides as follows:
(c) Corroboration of secondary information
When the administering authority or the Commission relies on secondary information rather than on information obtained in the course of an investigation or review, the administering authority or the Commission, as the case may be, shall, to the extent practicable, corroborate that information from independent sources that are reasonably at their disposal.
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People v Seymore (2015 NY Slip Op 02683)
People v Seymore
2015 NY Slip Op 02683
Decided on March 31, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 31, 2015
Tom, J.P., Andrias, Saxe, Manzanet-Daniels, Kapnick, JJ.
14644 2085/10
[*1] The People of the State of New York, Respondent, —
vMaurice Seymore, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Denis J. Boyle, J.), rendered on or about January 24, 2013,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,
It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
ENTERED: MARCH 31, 2015
CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1681
WELLS FARGO BANK, N.A.,
Creditor – Appellant,
v.
AMH ROMAN TWO NC, LLC,
Party-in-Interest – Appellee,
and
PNC BANK,
Creditor,
and
JOHN F. LOGAN,
Trustee,
and
CHARLES AZIZ FARAG; SUSAN FARAG,
Debtors.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:15-cv-00422-BO; 12-02431-8-SWH)
Argued: May 10, 2017 Decided: June 12, 2017
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge
Niemeyer and Judge King joined.
ARGUED: John T. Benjamin, Jr., THE LAW OFFICE OF JOHN T. BENJAMIN, JR.,
P.A., Raleigh, North Carolina, for Appellant. Clinton Shepperd Morse, BROOKS,
PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North
Carolina, for Appellee. ON BRIEF: Benjamin W. Smith, THE LAW OFFICE OF
JOHN T. BENJAMIN, JR., P.A., Raleigh, North Carolina, for Appellant. Edwin L.
West, III, Julia C. Ambrose, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellee.
2
DUNCAN, Circuit Judge:
Two years after the bankruptcy court canceled Wells Fargo Bank, N.A.’s (“Wells
Fargo”) deed of trust covering a piece of real property, and several months after the
property was sold in foreclosure to a bona fide purchaser for value, Wells Fargo moved to
set aside the bankruptcy court’s order. The bankruptcy court denied Wells Fargo’s
motion, and the district court affirmed. Wells Fargo appealed. For the reasons that
follow, we affirm.
I.
On November 20, 2002, Wells Fargo extended an equity line of credit in the
amount of $240,800.00 to Susan Farag and Charles Aziz Farag (“Debtors”) secured by a
deed of trust on property located at 633 Pendleton Lake Road in Raleigh, North Carolina
(“the Property”). On or about December 28, 2004, Debtors refinanced the Property with
PNC Bank (“PNC”), taking out a new installment loan and a new line of credit. During
this process, Wells Fargo notified PNC that it had frozen the line of credit Wells Fargo
had extended to the Debtors, and that the amount due to pay off the obligation was
$285,082.11. PNC transmitted the money to Wells Fargo, who receipted it. All of the
relevant correspondence and documents referenced the correct loan number. However,
Wells Fargo did not close the line of credit, and in fact allowed the Debtors to continue to
take advances on it totaling over $300,000.00.
On March 29, 2012, Debtors filed for Chapter 13 bankruptcy, triggering an
automatic stay on collection efforts outside the bankruptcy proceeding.
3
See 11 U.S.C. § 362(a). At the time of filing, the Debtors owned two properties secured
by deeds of trust held by Wells Fargo: the Property and another property located at
8148 Upper Lake Road in Raleigh, North Carolina (“the Other Property”). In the
Chapter 13 bankruptcy, PNC filed two proofs of claim secured by the Property in the
amounts of $64,970.51 and $475,924.81--the first from the equity line of credit and the
second from the promissory note. Wells Fargo also filed a secured proof of claim in the
amount of $307,530.84 for the debt arising from its line of credit secured by the Property.
On April 5, 2012, Sean Corcoran, an attorney with the law firm of Brock & Scott,
PLLC, filed a notice of appearance in the same Chapter 13 action “as counsel for Wells
Fargo Bank, NA, a creditor of the above named Debtor(s),” Charles Aziz Farag and
Susan Farag, “pursuant to Bankruptcy Rule 9010(b).” J.A. 183. On October 4, 2012,
PNC filed a motion for relief from the automatic stay in the same action under
11 U.S.C. § 362(d), seeking permission to foreclose on its interest in its two deeds of trust
on the Property (“Stay Motion”). PNC electronically served the Stay Motion on
Corcoran. Wells Fargo did not file a response to the Stay Motion.
On November 7, 2012, the bankruptcy court entered an order (the “Pendleton
Property Order” or “Order”), which granted PNC relief from the automatic stay, accorded
PNC’s deeds of trust priority over Wells Fargo’s deed of trust, and canceled Wells
Fargo’s deed of trust. On January 9, 2013, a certified copy of the Order was recorded in
the Office of the Wake County Register of Deeds. Debtors received their final discharge
on May 1, 2013, and the bankruptcy court entered a final decree on May 29, 2013.
4
After the case concluded, PNC foreclosed on the Property. Relying on the Wake
County Registry of Deeds, AMH Roman Two NC, LLC (“AMH”) purchased the
Property on or about June 30, 2014. Corcoran’s law firm, Brock & Scott, PLLC, acted as
counsel for the foreclosure trustee and prepared the deed that conveyed the Property to
AMH. AMH recorded on September 12, 2014.
Claiming it was caught by surprise, Wells Fargo subsequently sought to reopen the
bankruptcy proceedings, which the bankruptcy court allowed. On February 11, 2015,
over two years after the bankruptcy court issued the Pendleton Property Order, Wells
Fargo moved to set aside the Order pursuant to Federal Rules of Civil Procedure 60(b)(4)
and 60(b)(6), which provide for such relief under certain circumstances that are at issue
here. 1 After a hearing, the bankruptcy court denied the motion on the grounds that Wells
Fargo could not meet certain of Rule 60(b)’s threshold requirements: namely that the
motion was untimely and allowing the motion would greatly prejudice AMH, a bona fide
purchaser that bought the Property free and clear. Wells Fargo appealed.
The district court affirmed on different grounds. Specifically, the district court
concluded that even if Wells Fargo satisfied Rule 60(b)(4)’s threshold requirements,
contrary to Wells Fargo’s arguments, the bankruptcy court had subject matter jurisdiction
and the bankruptcy proceedings did not violate Wells Fargo’s due process rights. The
district court also concluded that Wells Fargo could not prevail under Rule 60(b)(6)
because its motion was untimely, AMH would suffer unfair prejudice, and Wells Fargo
1
Federal Rule of Civil Procedure 60 applies in bankruptcy cases.
Fed. R. Bankr. P. 9024.
5
could not establish exceptional circumstances warranting relief. Notably, although
Corcoran averred in an affidavit that Wells Fargo employed him to represent Wells
Fargo’s interest in only the Debtors’ Other Property, both the bankruptcy court and the
district court found that Corcoran’s appearance on behalf of Wells Fargo was general and
unrestricted.
Wells Fargo appeals. We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1).
II.
When reviewing a district court sitting as an appellate court in bankruptcy matters,
we review factual findings for clear error and legal conclusions de novo. In re White,
487 F.3d 199, 204 (4th Cir. 2007). We review a district court’s denial of a Rule 60(b)
motion for abuse of discretion; in so doing we do not review the merits of the underlying
order but rather only whether the movant satisfied the requirements for Rule 60(b) relief.
MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008).
III.
Rule 60(b) allows a court to “relieve a party . . . from a final judgment, order or
proceeding” on a limited number of grounds. Fed. R. Civ. P. 60(b). To prevail, a party
must demonstrate (1) timeliness, (2) a meritorious defense, (3) a lack of unfair prejudice
to the opposing party, and (4) exceptional circumstances. Dowell v. State Farm Fire &
Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). “After a party has crossed this
initial threshold, [it] then must satisfy one of the six specific sections of Rule 60(b).” Id.
6
One of these specific sections, Rule 60(b)(4), permits a court to relieve a party
from a final order if the judgment is “void.” Fed. R. Civ. P. 60(b)(4). An order is “void”
only if the court lacked personal or subject matter jurisdiction or acted contrary to due
process of law. Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005). Rule 60(b) also
contains a catchall section, which gives a court authority to relieve a party from a
judgment for “any other reason” not articulated in sections (1) through (5),
Fed. R. Civ. P. 60(b)(6), but only when the movant demonstrates “extraordinary
circumstances.” Dowell, 993 F.2d at 48.
We first discuss Rule 60(b)’s threshold requirements before turning to the
enumerated clauses. Because the requirements are described in the conjunctive, Wells
Fargo must meet them all. We focus, however, on the ones most problematic for Wells
Fargo’s argument, discussing each in turn.
A.
1.
A party must make a Rule 60(b) motion “within a reasonable time,”
Fed. R. Civ. P. 60(c)(1), and “the movant bears the burden of showing timeliness.”
Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016). The district court found that Wells
Fargo failed to carry its burden. We agree.
The bankruptcy court issued the Order on November 7, 2012, and Wells Fargo
waited more than two years to file its Rule 60(b) motion on February 11, 2015. Based on
the circumstances in this case, Wells Fargo’s delay is not reasonably timely.
7
At the core of its assertion of timeliness, Wells Fargo contends Corcoran’s
representation did not extend to the Property. The bankruptcy court found, and the
district court agreed, that Corcoran entered an unlimited appearance on behalf of Wells
Fargo in the bankruptcy case on April 5, 2012. Notwithstanding Corcoran’s affidavit
stating that his appearance was only limited to Wells Fargo’s interest in the Debtors’
Other Property, the record supports the finding that Corcoran filed a general notice of
appearance “as counsel for Wells Fargo Bank, NA, a creditor of the above named
Debtor(s),” Charles Aziz Farag and Susan Farag, “pursuant to Bankruptcy Rule 9010(b).”
J.A. 183. Whatever Corcoran’s intention, the finding that Corcoran entered a general and
unrestricted notice of appearance was not clearly erroneous. See In re White, 487 F.3d
at 204.
Wells Fargo concedes that Corcoran received PNC’s Stay Motion and the
bankruptcy court’s Pendleton Property Order and that Corcoran is presumed to have read
those documents. At its core, Wells Fargo’s timeliness challenge is also intertwined with
its argument that the notice to Corcoran was jurisdictionally deficient for reasons we
discuss separately. Suffice it to say that for purposes of the discussion of timeliness, the
cases on which Wells Fargo relies do not aid its cause.
In Klapprott v. United States, 335 U.S. 601 (1949), the Supreme Court found a
four-year gap timely where the party faced significant obstacles to the protection of his
interests: he was in prison, ill, and without funds to obtain counsel. Id. at 607–14. The
First Circuit in Bouret-Echevarria v. Caribbean Aviation Maintenance Corp.,
784 F.3d 37 (1st Cir. 2015), found that a three-and-a-half-month delay following notice
8
was reasonable given the appellants’ “diligent efforts to strengthen the basis for their
motion” during that time. Id. at 44. Here, by contrast, Wells Fargo had no such hurdles
to surmount.
At every critical juncture, Wells Fargo slept on its rights. Wells Fargo did not
respond to PNC’s Stay Motion when PNC challenged Wells Fargo’s interest in the
Property. It did not appeal the Order before the bankruptcy proceeding concluded.
See Dowell, 993 F.2d at 48 (“It is a well settled principle of law that a Rule 60(b) motion
seeking relief from a final judgment is not a substitute for a timely and proper appeal.”).
It also did not seek to enjoin PNC’s foreclosure of the Property. Instead, Wells Fargo
waited more than two years from the entry of the Order, and several months after AMH
purchased the Property in good faith, before seeking relief from the Order. That is not
reasonable under the circumstances. See Bouret-Echevarria, 784 F.3d at 44 (noting that
“[a] reasonableness inquiry evaluates whether a movant acted promptly when put on
notice of a potential claim”).
2.
A second consideration under Rule 60(b)’s threshold requirements counting
against Wells Fargo is that granting the relief Wells Fargo seeks would also create
significant unfair prejudice to AMH, an innocent bona fide purchaser who gave fair value
for clear title. North Carolina has a race-recording statute under which the first
titleholder to record holds an interest superior to anyone who later records.
See N.C. Gen. Stat. §§ 47-18, 47-20. The very purpose of the race recording statute is “to
enable purchasers to rely with safety upon the examination of the records.”
9
Grimes v. Guion, 18 S.E.2d 170, 172 (N.C. 1942) (quoting Wood v. Tinsley, 51 S.E. 59,
59 (N.C. 1905)). Accordingly, a bona fide purchaser of real property for value takes the
property free of voidable defects if such purchaser has no actual knowledge of the
defects, is not on reasonable notice from the recorded instruments, and would not have
become aware of them when attending the sale and exercising reasonable care.
Swindell v. Overton, 314 S.E.2d 512, 517 (N.C. 1984). The Pendleton Property Order
unambiguously canceled Wells Fargo’s deed of trust, and a certified copy of the Order
was recorded in the register of deeds. AMH purchased the Property in foreclosure in
reliance on that Order. Under these circumstances, resuscitating Wells Fargo’s deed of
trust would unfairly prejudice AMH.
B.
Even if Wells Fargo did satisfy Rule 60(b)’s threshold requirements, it still does
not meet the requirements of that Rule’s enumerated sections for relief. Wells Fargo
contends it is entitled to relief under Rules 60(b)(4) and 60(b)(6). We disagree.
1.
Wells Fargo advances two main arguments under Rule 60(b)(4). First, it argues
that, because PNC failed to bring its action in an adversary proceeding complete with an
adversary complaint and summons, the bankruptcy court lacked jurisdiction to cancel
Wells Fargo’s lien, and therefore the court’s Order was “void.” Second, Wells Fargo
contends that the judgement is void because it was entered in violation of Wells Fargo’s
due process rights. We discuss each argument in turn.
10
Although Congress has granted the bankruptcy courts broad authority to determine
“the validity, extent, or priority of liens,” 28 U.S.C. § 157(b)(2)(K), Wells Fargo points
out that Bankruptcy Rule 7001 requires an adversary proceeding to do so.
See Fed. R. Bankr. P. 7001(2) (defining “adversary proceeding” to include “a proceeding
to determine the validity, priority, or extent of a lien or other interest in property”). Wells
Fargo insists that because PNC obtained the Order in response to a motion for relief from
the automatic stay rather than in the course of an adversary proceeding, the bankruptcy
court exceeded its jurisdiction. We disagree.
The Supreme Court has “cautioned, in recent decisions, against profligate use of
the term” jurisdictional, Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, 558 U.S. 67, 81
(2009), and has expressed increasing reluctance to characterize procedural rules as
jurisdictional bars, see, e.g., United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
271–72 (2010). The Court’s decision in Espinosa is very much on point. There, the
debtor proposed to discharge a portion of his student loan debt attributable to accrued
interest. By statute, a debtor may discharge such obligations only if they would impose
an “undue hardship,” id. at 263 (quoting 11 U.S.C. §§ 523(a)(8), 1328), and the
Bankruptcy Rules required an adversary proceeding to resolve that issue, see id. at 264
(citing Rules 7001(6), 7003, 7004, and 7008). Although the debtor failed to initiate such
an adversary proceeding, the bankruptcy court nevertheless confirmed the plan, without
an adversary proceeding or the undue hardship determination. The creditor received
notice of the plan but did not object to either defect and failed to appeal. Id. at 264–65.
Years later, when efforts to collect the unpaid interest on the debtor’s student loan debts
11
prompted the debtor to seek an order enforcing the bankruptcy court’s discharge, the
creditor responded by filing a Rule 60(b)(4) motion seeking to set aside the bankruptcy
court’s order confirming the plan. Id. at 266. The Supreme Court rejected the creditor’s
argument that the bankruptcy court’s order was void under Rule 60(b)(4) because the
bankruptcy court confirmed the plan without making an undue hardship determination or
holding an adversary proceeding. As relevant here, the Supreme Court concluded that
“the requirement that a bankruptcy court make [the undue hardship] finding in an
adversary proceeding derives from the Bankruptcy Rules . . . , which are ‘procedural
rules adopted by the Court for the orderly transaction of its business’ that are ‘not
jurisdictional.’” Id. at 272 (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)).
Similarly here, PNC’s decision to seek relief through a motion rather than through
a separate adversary proceeding did not divest the bankruptcy court of subject matter
jurisdiction to grant the requested relief. 2 Congress vested the bankruptcy courts with
2
To the extent Wells Fargo argues that the bankruptcy court exceeded its
jurisdiction by applying state laws in violation of Stern v. Marshall, 564 U.S. 462 (2011),
we disagree. In Stern, the Supreme Court concluded that a bankruptcy court lacked
subject matter jurisdiction under Article III to enter final judgment on a debtor’s tortious
interference counterclaim because it did not fall within an exception to the requirement
that only Article III judges exercise the judicial power. Id. at 493–95. In Stern and
related cases, the Supreme Court has repeatedly distinguished between state common law
claims that do not flow from a federal statutory scheme and the core of the federal
bankruptcy power--restructuring debtor-creditor relations by assessing “creditors’
hierarchically ordered claims to a pro rata share of the bankruptcy res.” Stern, 564 U.S.
at 492 (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 56 (1989)); see also
Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1951 (2015) (noting that historical
practice and Congress’s constitutional authority to enact bankruptcy laws confirm that
Congress may assign the restructuring of creditor-debtor relations to non-Article III
(Continued)
12
broad jurisdiction to determine “the validity, extent, or priority” of Wells Fargo’s lien,
28 U.S.C. § 157(b)(2)(K), and any failure to follow the procedural rule here does not rise
to the level of a jurisdictional flaw. 3
2.
Second, Wells Fargo argues that the Pendleton Property Order is void under
Rule 60(b)(4) because the bankruptcy court entered it in violation of Wells Fargo’s due
process rights. Specifically, Wells Fargo contends that it did not receive adequate notice
of PNC’s Stay Motion and repurposes its argument that PNC should have challenged the
lien via an adversary proceeding, not a motion. This argument mirrors the one in which
Wells Fargo contended that its action was timely, and we similarly reject the argument as
without merit here.
Due process “does not require actual notice.” Jones v. Flowers, 547 U.S. 220, 225
(2006). Instead, it requires notice “reasonably calculated, under all the circumstances, to
courts). Here, the bankruptcy court acted well within its jurisdiction when it determined
the validity, extent, and priority of Wells Fargo’s lien.
3
Wells Fargo argues that this court’s decision in Cen-Pen Corp. v. Hanson,
58 F.3d 89 (4th Cir. 1995), controls. However, that case addressed the rules-based
procedures normally required to invalidate a lien; it said nothing about the subject matter
jurisdiction of bankruptcy courts to enter orders affecting title to real property outside the
context of an adversary proceeding. See id. at 92–94 (holding that creditor’s liens
survived confirmation of a Chapter 13 wage earner plan because the debtors failed to
initiate an adversary proceeding as required under Bankruptcy Rule 7001(2) but
remaining silent about jurisdiction). Moreover, even if there were a jurisdictional flaw,
this court treats a judgment as void under Rule 60(b)(4) only when the jurisdictional error
is “egregious.” Wendt, 431 F.3d at 413 (citation omitted); accord Espinosa,
559 U.S. at 271.
13
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Espinosa, 559 U.S. at 272 (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)).
Although we conclude that Wells Fargo received actual notice, even if it did not,
the notice it received was constitutionally sufficient. As explained above, the finding that
Corcoran entered an unlimited appearance on behalf of Wells Fargo’s interests in the
Debtors’ case was not clearly erroneous. And, as Wells Fargo acknowledges, under
longstanding precedent once an attorney files an appearance on behalf of a client, notice
to the attorney is notice to the client. See, e.g., Rogers v. Palmer, 102 U.S. (12 Otto) 263,
267–68 (1880) (explaining that the law presumes that an attorney communicates notice of
any matter within the scope of representation to the client). That is what happened here. 4
3.
Finally, to the extent Wells Fargo suggests the district court should have exercised
its discretion under Rule 60(b)(6) to set aside the Order, the facts are far from the
4
Although failure to issue the Order through an adversary proceeding may have
“deprived [Wells Fargo] of a right granted by a procedural rule . . . this deprivation did
not amount to a violation of [Wells Fargo’s] constitutional right to due process” because
Corcoran received actual notice. Espinosa, 559 U.S. at 272. Similarly, Wells Fargo’s
technical objection that the service of the Stay Motion should have come by first class
mail instead of electronically does not rise to a constitutional violation. Cf. Jones,
547 U.S. at 225. In any event, we note that both the bankruptcy court and the district
court recognized that, under the local bankruptcy rules, Corcoran waived service by mail
and consented to electronic service when he registered as a filing user. We see no abuse
of discretion in the district court’s decision to affirm the bankruptcy court’s interpretation
of its local rules on this issue. Cf. U.S. Fid. & Guar. Co. v. Lawrenson, 334 F.2d 464,
467 (4th Cir. 1964) (“A court is, of course, the best judge of its own rules.”);
Henderson v. United States, 476 U.S. 321, 328 n.9 (1986) (deferring to Ninth Circuit’s
interpretation of local rules).
14
“extraordinary circumstances” that justify such unusual powers. Wells Fargo is a
sophisticated party familiar with bankruptcy proceedings. Wells Fargo alone is
responsible for the cancellation of its deed of trust through its own mistake or neglect.
Vacating the judgment would not “accomplish justice,” Klapprott, 335 U.S. at 615, but
would undermine it.
IV.
At every stage of this litigation, Wells Fargo was in the best position to protect its
interests, and failed to do so. Juxtaposed against a bona fide purchaser for value who is
entitled to rely on the registry of deeds, Wells Fargo has nothing to commend it.
Accordingly, the judgment of the district court is
AFFIRMED.
15
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477 F.Supp.2d 677 (2007)
Sean PROA, et al., Plaintiffs,
v.
NRT MID ATLANTIC, INC., et al., Defendants.
Civil No. AMD 05-2157.
United States District Court, D. Maryland.
March 13, 2007.
*678 Clayborne E. Chavers, The Chavers Law Firm PC, Patrick J. Massari, Law Office of Patrick J. Massari, Washington, DC Sheryl Satzberg Levy, William Thaddeus Coleman, III, Berger and Montague PC, Philadelphia, PA, for Plaintiffs.
Paul J. Kennedy, Cristina M. Rodriguez, Erik Christian Johnson, Joseph P. Harkins, Littler Mendelson PC, Washington, DC, for Defendants.
MEMORANDUM OPINION
ANDRE M. DAVIS, United States District Judge.
Plaintiffs Sean Proa, Margaret Jordan, and Gary S. Schiff, are real estate agents in Maryland. They have here asserted employment discrimination and related claims against defendants NRT, Inc. (a Delaware corporation), NRT Mid Atlantic, Inc., (a subsidiary of defendant NRT, Inc., doing business in a multistate area as Coldwell Banker Residential Brokerage), Angela Shearer (a vice president of NRT Mid Atlantic, Inc., and the branch manager of its Chestertown, Maryland, office) and Sarah Sinnickson (a Regional Vice President of NRT Mid Atlantic, Inc.).
Plaintiffs allege principally that the defendants, discriminated against them on the basis of race and religion. Specifically, plaintiffs allege seven counts in the second *679 amended complaint. The three plaintiffs jointly allege in Count I individual claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e, et seq. In particular: (1) Proa (who is an African American) alleges a racial discrimination claim; (2) Jordan (who is a Caucasian married to an African American) alleges a racial discrimination claim (on the basis of her husband's race) together with a retaliation claim; and (3) Schiff (who is Jewish) alleges a claim of discrimination based on religion. (Plaintiffs also seem to assert hostile environment claims.) In Count II, plaintiffs allege, again jointly, that defendants discriminated against them in violation of 42 U.S.C. § 1981 based on their "race, ethnicity, racial heritage, and/or ethnic or racial associations by denying them the same rights as enjoyed by Caucasian Christian real estate agents."
In Count III, plaintiffs Proa and Jordan purport to assert a "class claim," presumably arising under Title VII (but not so alleged), for declaratory relief, namely, that they are not "independent contractors" but are "employees, for purposes of federal law." In. Counts IV VI, plaintiffs assert state law breach of contract and negligent supervision claims. Finally, in Count VII, plaintiffs Proa and Jordan assert some unspecified hybrid state/federal "wrongful discharge" claim.
Although they have answered the second amended complaint, defendants have also timely moved to dismiss Jordan's Title VII claims for failure to exhaust administrative remedies and, in its entirety, the ostensible declaratory judgment "class claim" asserted by Proa and Jordan in Count III. The motion is fully briefed and no hearing is needed. For the reasons stated within, the motion Shall be granted.
I.
It is undisputed that plaintiff Jordan failed to assert her Title VII claims within 90 days of her receipt of a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). Nevertheless, she argues that she should be able to maintain her claims under the "single filing rule," a narrow exception to the exhaustion requirements enacted by Congress, which allows an employment discrimination plaintiff to "piggyback" on the claim of another, timely-filed action.
The single filing rule has not been expressly adopted by the Fourth Circuit. See White v. BFI Waste Services, LLC, 375 F.3d 288, 293 (4th Cir.2004). In any event, "piggybacking," even if I assume the Fourth Circuit will someday embrace the concept, is not appropriate here. The "single filing" rule applies to permit a claimant who has not exhausted the administrative requirement to file a charge of discrimination with the EEOC to join in the charge of another plaintiff who filed a similar, timely charge. Id. In other words, it applies only to plaintiffs who never filed an EEOC charge at all. Here, Jordan filed an EEOC charge, received her right to sue notice, and then did not sue within the required period. The case law is clear that the plaintiff does not qualify to join in this situation. Id. at 294 (holding that plaintiff, who filed his own charge of discrimination and received his own right-to-sue notice, must comply with his own charge and right-to-sue notice); Campbell v. Amtrak, 163 F.Supp.2d 19, 25-26 (D.D.C.2001) (holding that a claimant cannot rely upon another claimant's charge and must abide by the statute of limitations included in her right-to-sue notice); Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 558 (llth Cir.1997) (prohibiting a plaintiff, who had filed an EEOC charge and failed to file suit within 90 days, from "piggybacking"); Anderson v. Unisys Corp., 47 F.3d 302, 308-309 (8th *680 Cir.1995) (failure to file suit within 90 days after the receipt of right-to-sue notices precluded plaintiffs from joining suit).
As plaintiff Jordan offers no explanation for her failure to file suit within the required time, her Title VII claims shall be dismissed. (This outcome seemingly is of no moment inasmuch as Jordan's § 1981 race and retaliation claims remain in the case.)
II.
For reasons that are not entirely clear to this court, plaintiffs Proa and Jordan have persisted in their efforts, now repeated in the second amended complaint, to litigate as a class action under Fed. R.Civ.P. 23 the issue of whether real estate agents such as themselves, i.e., self-described "independent contractors," are entitled to claim the status of an employee under Title VII. This effort is unavailing for a number of independent but related reasons.
The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that the court must assess three factors in determining whether it should exercise jurisdiction to award declaratory relief: (1) the complaint must allege an "actual controversy" between the parties "of sufficient immediacy and reality to warrant issuance of a declaratory judgment;" (2) the court must possess an independent basis for jurisdiction over the parties;. and (3) the court must decide whether to exercise its discretion to determine or dismiss the action. Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir. 2004); see also Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 387 (5th Cir.2003).
Here, manifestly, there is no "actual controversy" between defendants and the putative class of "[a]ll current and former real estate agents employed by" defendant Coldwell Banker "who were classified as independent contractors." The very notion collapses in on itself. "Independent contractor" status is a voluntary legal regime assumed as a matter of choice by contracting parties. Plaintiffs' apparent desire, in order to take advantage of remedies provided under federal law only to "employees," to litigate the legal effect of their status in respect to their individual relationships with defendants,' hardly provides a basis for an assumption that all agents in their Chestertown office wish to do so. Cf. Cilecek v. Inova Health System Servs., 115 F.3d 256, 261 (4th Cir.1997) (under Title VII, "whether an employment relationship or an independent contractor relationship was created" is "a question of law"), cert. denied, 522 U.S. 1049, 118 S.Ct. 694, 139 L.Ed.2d 639 (1998).
Indeed, the contrary must be true, if, as plaintiffs contend, they were singled out on the basis of race or ethnicity for disparate adverse treatment. The exercise of the discretionary jurisdiction to award declaratory relief is appropriate only when a court can provide "specific relief through a decree of a conclusive character." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The ostensible "class claim" asserted here, designed to obtain a ruling declaring that all of defendants' erstwhile independent contractors/agents are really employees, plainly fails that test.[*]
*681 Even more fundamentally, there must exist an independent basis for a claim to support the exercise of the discretionary jurisdiction to render a declaratory judgment. The Declaratory Judgment Act, which permits an award of declaratory relief only "upon the filing of an appropriate pleading," 28 U.S.C. § 2201(a), is not by itself a sufficient basis for jurisdiction over the class claim. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Here, there is no underlying "class claim" asserted, no "appropriate pleading," sufficient to support relief on a class basis.
Finally, even if there were an actual controversy and a basis for a classwide claim which was actually alleged in the second amended complaint, the court would not exercise its discretion to consider classwide declaratory relief on the issue of "independent contractor" status because it makes little practical sense to do so. "In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration." New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 296 (4th Cir.2005). Federal district courts are not required to exercise jurisdiction over declaratory judgment actions, even where jurisdiction otherwise exists. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494-95, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942); see also Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). I would not do so here: See supra n. *.
III.
For the reasons set forth above, the motion to dismiss Jordan's claims asserted in Count I of the second amended complaint and Count III in its entirety shall be granted. An order follows.
NOTES
[*] Davis v. Hartland Homes, Inc., 2006 WL 2805255 (D.Neb. Sept.28, 2006), and Golden v. A.P. Orleans, 681 F.Supp. 1100 (E.D.Pa. 1988), found that real estate salespersons, erstwhile independent contractors, were employees for purposes of federal anti-discrimination laws. Kakides v. King Davis Agency, Inc., 283 F.Supp.2d 411 (D.Mass.2003), and Stetka v. Hunt Real Estate Corp., 859 F.Supp. 661, (W.D.N.Y.1994), each reached a contrary result. Each of these cases was, of course, an individual action. The fact intensive nature of the inquiry clearly reflects the inappropriateness of any attempt to determine the question on a classwide basis.
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NUMBER 13-18-00115-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHRISTIAN A. BERNAL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant, Christian A. Bernal, attempts to appeal his conviction for capital murder.
The trial court has certified that this “is a plea-bargain case, and the defendant has NO
right of appeal.” See TEX. R. APP. P. 25.2(a)(2).
On February 28, 2018, this Court notified appellant’s counsel of the trial court’s
certification and ordered counsel to: (1) review the record; (2) determine whether
appellant has a right to appeal; and (3) forward to this Court, by letter, counsel’s findings
as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the
existence of any amended certification.
On March 13, 2018, counsel filed a letter brief with this Court. Counsel’s response
does not establish that the certification currently on file with this Court is incorrect or that
appellant otherwise has a right to appeal.
The Texas Rules of Appellate Procedure provide that an appeal must be dismissed
if the trial court’s certification does not show that the defendant has the right of appeal.
TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, this appeal is
DISMISSED.
DORI CONTRERAS
JUSTICE
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of March, 2018.
2
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626 F.Supp.2d 1105 (2009)
ADMIRAL INSURANCE COMPANY, Plaintiff,
v.
David HOSLER, Christine Suess, and Debbie Eytcheson, Defendants.
Civil Action No. 04-cv-00197-CMA-BNB.
United States District Court, D. Colorado.
February 17, 2009.
*1107 Christopher S. Clemenson, Cozen & O'Connor, Denver, CO, for Admiral Insurance Company.
David P. Hersh, David K. Teselle, Sarah Van Arsdale Berry, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Englewood, CO, for David Hosler.
*1108 ORDER AND MEMORANDUM OF DECISION GRANTING MOTION FOR SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO, District Judge.
This is an insurance coverage case arising out of a faulty construction case. The alignment of parties in this matter is rather unusual, as only defendants remain as active parties in the case. Defendants David Hosler, Christine Seuss, and Debbie Eytcheson (collectively, the "Homeowners"), assert that theyas assignees of Former Defendants BCORP-HRT LLC ("BCORP-HRT") and BCORP Arlington, LLC ("BCORP Arlington," together, collectively, "BCORP")are entitled to insurance coverage under policies issued by former Defendant and now Plaintiff Admiral Insurance Company ("Admiral") for a judgment entered in Homeowners' favor and against BCORP. This matter comes before the Court on Admiral Insurance Company's Renewed Motion for Summary Judgment, filed September 19, 2008 (Doc. # 214). This Court's jurisdiction is premised upon diversity of citizenship, pursuant to 28 U.S.C. § 1332. For the reasons stated below, the Court GRANTS Admiral's renewed motion.
FACTS
I. FACTUAL BACKGROUND
This case has a complicated history, which the Court previously summarized at length in a March 7, 2007 Order, 506 F.Supp.2d 418, on Admiral's first motion for summary judgment[1] (the "March 7 Order," Doc. # 177). Accordingly, the Court presents only a cursory synopsis of the facts in this Order. In short, this matter concerns questions about insurance coverage relating to a judgment awarded to Homeowners after successful trial of their claims (the "Underlying Action") regarding the faulty construction and repair of a condominium project in Littleton, Colorado, known as "Arlington."[2]
A. Arlington and the Homeowners
BCORP Arlington and BCORP-HRT were, respectively, the developer and general contractor for Arlington. In constructing Arlington, BCORP omitted certain sound- and fire-proofing implements, substituted certain wall construction materials, and substituted certain joists called for in the architectural plans. It is undisputed that BCORP's omissions and substitutions adversely affected Arlington's fire safety rating and soundproofing. In August 2000, September 2000, and September 2001, respectively, Homeowners David Hosler, Christine Suess, and Debbie Eytcheson purchased and inhabited condominium units at Arlington. All three Homeowners claim that their units were excessively noisy, and the noisewhich included, but was not limited to the following noises from other units: (1) televisions, phones, vacuums and other appliances running, ringing, and beeping; (2) water running and toilets flushing; and (3) people conversing, walking about their units, and coming and goingcaused them to lose sleep. Mr. Hosler and Ms. Suess both testified that loud noise awakened them during their first nights in their units. *1109 Mr. Hosler and Ms. Eytcheson both reported sleeping in the living room of their units to avoid the noise they could hear in their bedrooms. The Homeowners all testified to some form of disappointment, frustration, and embarrassment because of the living situation at Arlington. Ms. Eytcheson also reported paranoia, anxiety, and weight gain.
B. Arlington Repairs and the Underlying Action
In 2002, BCORP attempted to make repairs to Arlington to remedy the noise problems. In performing the repairs, BCORP used over-length screws that pierced the building framing and soundproofing, thereby rendering the soundproofing even less effective. Dissatisfied with the repairs, Homeowners and several other Arlington residents filed the Underlying Action against BCORP on or about August 29, 2002.
Homeowners' claims for violation of the Colorado Consumer Protection Act, negligence, and negligent repair, and Mr. Hosler's and Ms. Suess' separate claims for breach of implied warranty and breach of contract were tried to a jury. The jury was instructed as follows:
Each individual plaintiff has the burden of proving, by a preponderance of the evidence, the nature and extent of their individual damages. If you find in favor of each individual plaintiff on their claims for negligence, negligent repair, or violation of the Colorado Consumer Protection Act, you must determine the total dollar amount of each individual plaintiff's damages, if any, that were caused by the negligence by the particular defendant.
In determining such damages, you should consider the following:
1. Any non-economic losses or injuries which each individual plaintiff has had to present time or which each individual plaintiff will probably have in the future, including: mental pain and suffering, inconvenience, emotional distress, and impairment of the quality of life.
2. Any economic losses or injuries which each individual plaintiff has had to the present time or which each individual plaintiff will probably have in the future. In considering damages in this category, you shall not include cost of repairs or loss of use because these damages, if any, are to be included in a separate category.
3. The reasonable cost of additional necessary future repairs to the property.
4. An amount that will reasonably compensate the plaintiff for any loss of use of his or her condominium unit during the time reasonable required to make the reasonable and necessary future repairs.
Homeowners prevailed. The jury awarded each Homeowner $150,000 in non-economic damages and $1,500 in damages for loss of use, as well as various amounts for economic damages and damages for reasonable and necessary repairs. In total, Mr. Hosler was awarded $186,355.05; Ms. Suess, $182,596.51; and Ms. Eytcheson, $180,235.20. BCORP filed for bankruptcy in 2006, and presumably cannot pay the damages awarded Homeowners. Accordingly, at issue in the instant case is whether the awarded damages trigger coverage under two insurance policies Admiral issued to BCORP.
C. The Admiral Insurance Policies
Admiral issued two policies to BCORP: A01AG09920 (the "First Policy"), effective from January 31, 2001 through January 31, 2002, and A02AG12517 (the "Second Policy," collectively, the "Policies"), effective *1110 from January 31, 2002 through January 31, 2003. Both Policies contained the following language setting forth the nature of coverage:
[Admiral] will pay those sums that [BCORP] becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. . . . This insurance applies to "bodily injury" or "property damage" only if: (1) [t]he "bodily injury" or "property damage" [was] caused by an "occurrence;" and (2) [t]he "bodily injury" or "property damage" occur[red] during the policy period.
The Policies define "bodily injury" as any "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Further, the Policies define "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Further, both Policies contain Pre-Existing Damages Exclusions, which state that the Policies will not cover the following types of damages relating to "bodily injury" independent of whether such "bodily injury" is known or unknown:
(a) [damages] which first occurred prior to the inception date of this policy. . .; or
(b) [damages] which are, or are alleged to be, in the process of occurring as of the inception date of the policy. . . even if the "occurrence" continues during this policy period.
II. PROCEDURAL HISTORY[3]
On May 3, 2004, American Fire and Casualty Company ("American Fire") and the Ohio Casualty Insurance Company ("Ohio Casualty") filed an amended complaint against Defendants Homeowners, Admiral, BCORP, and a number of other individuals and entities, seeking declaratory judgments on twelve matters.[4] On May 6, 2004, Admiral filed an answer and cross-claims against Homeowners, BCORP, and several additional parties no longer relevant to the instant case, seeking damages and a declaratory judgment that it had no duty to defend or indemnify BCORP in the Underlying Action. On May 19, 2004, Homeowners, along with other now-irrelevant parties, answered the cross-claims. On May 25, 2004, BCORP, along with other now-irrelevant parties, answered Admiral's cross-claims.
On August 31, 2004, the parties filed a stipulated motion to stay the case pending the outcome of the Underlying Action. On September 8, 2004, the Court granted the motion and stayed the case until either the resolution of the Underlying Action or September 1, 2005, whichever was to come earlier. On September 15, 2005, the Court denied additional stays and ordered the case to go forward.
On November 18, 2005, several individual (and now irrelevant) party-defendants settled with American Fire and Ohio Casualty and moved to dismiss themselves from the case. On November 23, 2005, American Fire and Ohio Casualty moved to dismiss their claims: (1) against BCORP and several irrelevant individuals and entities with prejudice; and (2) against Homeowners and several other irrelevant individuals without prejudice. Additionally, American Fire and Ohio Casualty: (1) assigned *1111 to BCORP their claims against Admiral arising out of BCORP's request for defense in the Underlying Action; and (2) moved to realign the parties, substituting BCORP and several now-irrelevant entities as plaintiffs.
On December 8, 2005, the Court: (1) dismissed American Fire's and Ohio Casualty's claims; (2) dismissed American Fire and Ohio Casualty from the action; (3) denied the motion to realign parties; (4) denied all remaining outstanding motions as moot; and (5) stayed the case through May 1, 2006. On March 22, 2006, BCORP filed a suggestion of bankruptcy, announcing that both BCORP-HRT and BCORP Arlington had filed voluntary petitions under Chapter 7 of the Bankruptcy Code. On August 17, 2006, the Court ordered that the case remain stayed, due to the automatic stay provisions of the Bankruptcy Code. On September 20, 2006, the Bankruptcy Court issued an order allowing litigation of the coverage issues pending before this Court to continue.
On December 12, 2006, the parties announced that BCORP had assigned its rights against Admiral for indemnification of the judgments in the Underlying Action to the Homeowners. In light of the assignment, the parties filed, and the Court granted, a stipulated motion to dismiss with prejudice: (1) the plaintiffs to the Colorado State Court litigation involving the Canterbury property (the "Canterbury Plaintiffs"), BCORP, and certain irrelevant BCORP-related entities and individuals from the action; (2) all of Admiral's claims against BCORP, and certain irrelevant BCORP-related entities and individuals; and (3) all other claims by and between the Canterbury Plaintiffs, Admiral, BCORP, and the above-referenced irrelevant BCORP-related entities and individuals. After the Court granted the motion, the only parties remaining in the case were Defendants Homeowners and Admiral.
On December 13, 2006, Admiral filed a motion for summary judgment, in which it argued there was no coverage under the Policies and it had no duty of indemnification. The Court granted the motion on March 7, 2007 (the "March 7 Order," Doc. # 177). Homeowners successfully appealed the Court's decision. On June 11, 2008, the Tenth Circuit issued an order vacating this Court's decision and remanding the case (the "Tenth Circuit Order," Doc. # 191). The Appellate Court reasoned that this Court: (1) improperly looked beyond the State Court record in the Underlying Action when it considered affidavits that Homeowners submitted in support of their claims of bodily injury; and (2) improperly failed to consider the Homeowners' trial testimony submitted in support of their claims. Further, the Appellate Court suggested that this Court certify the question of what physical manifestations of emotional distress are sufficient to evidence "bodily injury" within the meaning of the Policies. On August 26, 2008, this Court issued an order certifying the aforementioned question to the Colorado Supreme Court (Doc. # 202). On September 18, 2008, the Colorado Supreme Court issued an order declining to answer (Doc. # 212).
On September 19, 2008, Admiral filed a renewed motion for summary judgment (Doc. # 214). Admiral argues that Homeowners are not entitled to coverage under the Policies because Homeowners were not awarded damages for "bodily injury" within the meaning of the Policies and Homeowners' injuries were not caused by an "occurrence" within the meaning of the Policies. Alternatively, Admiral argues that pre-existing damage exclusions contained in the Policies preclude any coverage for bodily injury the Homeowners suffered. On October 14, 2008, Homeowners filed a response to the motion (Doc. # 218). *1112 On November 3, 2008, Admiral filed a reply in support of the motion (Doc. # 221).
ANALYSIS
I. STANDARD OF REVIEW
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the Court may grant summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2008); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, 36 F.3d at 1518 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see Fed.R.Civ.P. 56(e)(2) (2008). A fact in dispute is "material" if it might affect the outcome of the suit under the governing law; the dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The Court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998) (citing Concrete Works, 36 F.3d at 1517).
II. EVALUATION OF CLAIMS
A. Matters at Issue
Admiral has conceded that the only remaining issues in this case surround the question of whether Admiral owes a duty to indemnify BCORP and, therefore, owes a duty to Homeowners as BCORP's assignees. The duty to defend and other issues in this case have dwindled and disappeared, along with the original parties. In Colorado, "the duty to indemnify relates to the insurer's duty to satisfy a judgment entered against the insured" and "arises only when the policy actually covers the alleged harm" that underlies the entered judgment.[5]Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003). Simply stated, "indemnity flows from the nature of the ultimate verdict, judgment, or settlement." Id. at 301. Accordingly, the determination of whether an insurer has a duty to indemnify "requires factual development, as it is largely a question of fact." Id. at 302. Heeding the instructions of the Tenth Circuit and the jurisprudence of the Colorado Supreme Court, this Court has reviewed the complaint in the case and considered the allegations broadly in the context of the Policies to determine whether "the facts pled, claims asserted and relief sought do arguably include a loss for which an insured would potentially be liable." Id. at 301-02; *1113 see McGowan v. State Farm Fire & Cas. Co., 100 P.3d 521, 524 (Colo.Ct.App.2004); see also Am. Fire and Cas. Co. v. BCORP Canterbury at Riverwalk LLC, 282 Fed. Appx. 643, 649 (10th Cir.2008) (Doc. # 191). The Court finds BCORP's allegations in its cross-claims against Admiral, particularly paragraphs 13 and 18,[6] are sufficient to establish that coverage under the Policies for bodily injury suffered by the Arlington Homeowners may possibly attach. As such, the Court must next interpret the Policies to determine whether coverage attaches to the injuries testified to at trial by the Arlington Homeowners in the Underlying Action.
In so doing, the Court notes that the Policies are contracts that must be interpreted in keeping with long-established principles of contract interpretation. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999). The language in the Policies must be accorded plain and ordinary meaning. Terranova v. State Farm Mut. Auto. Ins. Co., 800 P.2d 58, 60 (Colo.1990). Further, if the language of the Policies is clear and unambiguous, the Court must enforce the Policies as they are written and may not apply a strained construction. Rodriguez v. Safeco Ins. Co., 821 P.2d 849, 851 (Colo.Ct.App.1991). As a matter of course, ambiguity is a question of law for the Court, and the fact that parties may differ in their interpretation of a contract does not, in and of itself, create ambiguity. Id. at 853. Indeed, "a term used in a contract is ambiguous when it is susceptible to more than one reasonable interpretation, [but] a mere potential for more than one interpretation of such term[,] considered in the abstract, does not create an ambiguity." Allstate Ins. Co. v. Juniel, 931 P.2d 511, 513 (Colo.Ct.App. 1996) (citing Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083). It follows that, in order to determine whether an instrument contains an ambiguity, "the test to be applied is not what the insurer intended by his words, but what the ordinary reader and purchaser would have understood them to mean." W. Coast Life Ins. Co. v. Hoar, 505 F.Supp.2d 734, 744 (D.Colo. 2007) (citing Davis v. M.L.G. Corp., 712 P.2d 985, 989 (Colo.1986) (other citations omitted)). With this framework in mind, the Court turns to its analysis.
B. "Bodily Injury" Defined
As noted in the Tenth Circuit Order, the Colorado Supreme Court has held that claims for "purely nonphysical or emotional harm" are not sufficient to serve as "bodily injury" for purposes of triggering insurance coverage. Am. Fire & Cas. Co., 282 Fed.Appx. at 650-51 (citing Nat'l Cas. Co. v. Great SW Fire Ins. Co., 833 P.2d 741, 746 (Colo.1992)). An insured must establish "physical manifestations" of the emotional harm or distress in order to trigger coverage for "bodily injury." Nat'l Cas. Co., 833 P.2d at 746. However, the Colorado Supreme Court has not opined as to the parameters of the "physical manifestations" sufficient to establish "bodily injury" or as to whether the term "bodily injury" is ambiguous. Further, as noted above, the Colorado Supreme Court declined to speak to the issue when this Court presented it in the form of a certified question. Thus, this is an issue of first impression under Colorado law and this Court must make its best "`Erie *1114 guess' as to what the Colorado Supreme Court would decide if it were faced with the question." Rexrode v. Allstate Indem. Co., 616 F.Supp.2d 1106, 1108 (D.Colo. 2007) (citing Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 901-02 (10th Cir. 2005); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
There is little precedent to guide this Court's determination regarding the issue at bar. Homeowners cite several Colorado cases, including Johnson v. Overright Trucking, Inc., which itself cites several cases in its examination of "serious physical manifestations" in the context of negligent infliction of emotional distress. Case No. 04-cv-01070, 2005 WL 1719738, at *3 (D.Colo.2005) (citing Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978); Parr v. Triple L & J Corp., 107 P.3d 1104, 1108 (Colo.Ct.App.2004); Colwell v. Mentzer Invs., Inc., 973 P.2d 631 (Colo.Ct.App.1998)). These tort cases are of limited value in guiding consideration of the insurance law issues in the instant case. "Tort law and insurance law are not coextensive." SL Indus. Inc. v. Am. Motorists Ins. Co., 128 N.J. 188, 607 A.2d 1266, 1275 (1992). A claim for negligent infliction of emotional distress can be sustained by manifestations of "physical or mental illness." Towns, 579 P.2d at 1165 (emphasis added). In contrast, as the Colorado Supreme Court has specifically opined, purely mental harm is not sufficient to establish "bodily injury" in the insurance context. Nat'l Cas., 833 P.2d at 746. Further, this Court is not convinced that an ordinary reader or purchaser of insurance, reading a policy in order to discern what is covered under the policy, would interpret the term "bodily injury" as referring to the scope and breadth of tort claims rather than to the plain language meaning of the term "bodily injury."
This Court is persuaded by the logic of the New Jersey Supreme Court as set forth in SL Industries Inc. v. American Motorists Insurance Company, 128 N.J. 188, 607 A.2d 1266 (1992). In that case, the New Jersey Supreme Court held, and this Court agrees, that "in the context of purely emotional distress, without physical manifestations, the phrase `bodily injury' is not ambiguous." Id. at 1274; see also ERA Franchise Sys. v. N. Ins. Co., Case No. 99-3022, 2000 WL 192834, at *5 n. 1, 2000 U.S.App. LEXIS 2493, at *15 n. 1 (10th Cir.2000) (citing cases and holding "the overwhelming majority of jurisdictions which have considered the issue hold that `bodily injury' standing alone or defined in a policy as `bodily injury [or harm], sickness or disease' is unambiguous and encompasses only physical harm") (citations omitted). This Court agrees further that the difficulty in distinguishing mental and physical injuries can render the term "bodily injury" ambiguous in certain cases and "[t]he phrase should be analyzed on a case-by-case basis to determine whether the alleged injuries are sufficiently akin to physical injuries to render the term `bodily injury' ambiguous." SL Indus., 607 A.2d at 1274.
In addressing the issue of whether the Homeowners suffered "bodily injury" which would trigger coverage under the Policies, the Court agrees with the Homeowners that the Tenth Circuit ruling in the instant case precludes this Court from considering any evidence of bodily injury beyond that presented to the jury at the trial of the Underlying Action. As such, this Court has disregarded Admiral's references to the Homeowners' deposition testimony and discovery responses. Rather, the Court has confined its review of the facts to a careful and detailed examination of the transcript of testimony given by the Homeowners during the trial of the Underlying Action.
*1115 C. "Bodily Injury" in the Instant Case
As it did in its first motion for summary judgment, Admiral argues that the judgment in the Underlying Action was not based on any "bodily injury" to Homeowners sufficient to trigger coverage under the Policies or, if there was any bodily injury, it was not caused by an "occurrence" within the ambit of the Policies. Homeowners posit that their emotional distress physically manifested itself sufficiently to be deemed "bodily injury" and the nature of the damage award implies physical injury. With respect to two of the Homeowners, the Court disagrees that the record supports the arguments of the Homeowners.
1. Mr. Hosler
In refuting Admiral's allegation that Mr. Hosler never testified to any corporeal injury, illness, or disease caused by the inadequate soundproofing at Arlington, Homeowners reference several lines of Mr. Hosler's trial testimony and a page of the Tenth Circuit Opinion that provides a summary of the testimony. The Court accepts as accurate the following summary of the relevant portions of Mr. Hosler's testimony, as set forth in the Homeowners' Response to the Motion for Summary Judgment (Doc. # 218 at 20-21):
(a) His experience at the Arlington was one of the worst experiences he ever had (p. 101, ll. 17-18);
(b) Mr. Hosler suffered from significant noise problems from above and beside his unit (p. 101, l. 17 to p. 108, l. 14);
(c) Mr. Hosler suffered sleep deprivation from the noise (p. 109, ll. 6-19);
(d) The noise was so bad he moved his bed out of the bedroom and put it in the living room where he slept for years (p. 113, ll. 5-24);
(e) Mr. Hosler was embarrassed by the noise and what he had to do to deal with the noise (p. 114, l. 19 to p. 115, l. 2);
(f) The noises he heard included snoring of the neighbors next door, televisions, blenders, microwaves (p. 119, l. 12 to p. 120, l. 23);
(g) Mr. Hosler "exhausted" his opportunities to correct the sound issues (p. 131, ll. 1-16);[7]
(h) Mr. Hosler suffered frustration and sleep loss from the noise (p. 145, ll. 6-15);
Within the plain meaning of the phrase as an ordinary insured would understand it, "bodily injury" connotes some sort of physical harm. Several of Mr. Hosler's allegations do not refer to any physical harm or injury whatsoever. Mr. Hosler's claims concerning the music that woke him, the placement of his bed, the noises he could hear from his unit, and his attempts at resolving the noise problems make no reference to injury and, therefore, cannot be deemed claims of "bodily injury." Similarly, Mr. Hosler's complaints that living at the Arlington was a terrible experience and that he felt frustrated, embarrassed, and dissatisfied cannot possibly be construed as "bodily injury." Feelings of negativity, frustration, dissatisfaction, and embarrassment are, by definition, emotional and not physical harm or "bodily injury," within the plain meaning of the term. The only complaints that could possibly be construed as "bodily injury" concern Mr. Hosler's loss of sleep, and this Court finds these complaints, as *1116 testified to by Mr. Hosler, to be insufficient.
First, causation is lacking. Mr. Hosler's allegation is not that his emotional distress manifested itself in his loss of sleep, but that the "crinkle" and "click" noises from earplugs he wore, the noise level at the Arlington generally, and music from a neighbor kept him from sleeping. (Doc. # 215, Ex. 7 at 102 l. 11, 109, ll. 13-14, 145, ll. 6-15.) But even assuming Mr. Hosler could establish that his lost sleep was really a manifestation of his emotional distress, his allegations still would not be sufficient. This Court is persuaded by precedent stating that loss of sleep cannot trigger insurance coverage for "bodily injury." Specifically, this Court is persuaded by the Tenth Circuit's interpretation of Kansas law, finding that "[a]lthough sleeplessness may affect the body, it is usually considered an aspect of mental suffering. It is not ordinarily considered a physical injury to the body or a sickness of the body." ERA Franchise Sys., 2000 WL 192834, at *6, 2000 U.S.App. LEXIS 2493, at *18. This Court is further persuaded by the New Jersey Supreme Court's reasoning that "sleeplessness . . . is, at base, emotional in nature. To designate sleeplessness a physical injury would be tantamount to conceding that emotional and physical injuries are indistinguishable." SL Indus., 607 A.2d at 1273. In light of the stated precedent, the Court finds that Mr. Hosler's allegations of lost sleep do not render the term "bodily injury" ambiguous. Because Mr. Hosler makes no allegations of "bodily injury," there can be no genuine issue of fact regarding whether coverage exists with respect to his claims in the Underlying Action.
2. Ms. Suess
In refuting Admiral's allegations that Ms. Suess did not testify to "any corpor[e]al injury, sickness, or disease related to any alleged emotional distress caused by inadequate soundproofing," Homeowners point to one page of the Tenth Circuit Order (which summarizes Mr. Hosler's testimony) and several lines of Ms. Suess' trial testimony. The Court accepts as accurate paragraphs (a), (b), (c), and (e) of the statements summarizing the relevant portions of Ms. Suess' testimony, as set forth in the Homeowners' Response to the Motion for Summary Judgment (Doc. # 218 at 21-22):
(a) she had problems with sound in her unit, including the sound of running water from the pipes loud enough to awake her from sleep (p. 17, l. 1 to p. 18, l. 10);
(b) she would be awakened in the middle of the night by the flushing of toilets in another unit (p. 17, l. 1 to p. 18, l. 10);
(c) she could hear the sound of normal conversations in other units (p. 18, ll. 11-25);
(d) the dust and mess caused by the negligent repair caused a flare up in her asthma (p. 32, l. 18 to p. 34, l. 1);[8]
(e) she suffered sleep loss from the noise problems (p. 35, l. 4 to p. 36, l. 5).
The claims by Ms. Suess do not render the term "bodily injury" ambiguous. Her claims concerning what she could hear in her apartment make no reference to physical harm and, therefore, are not claims of "bodily injury" within the *1117 plain meaning of the term. Further, Ms. Suess' claims concerning her feelings of frustration, anger, and deception are purely emotional in nature and, thus, also not "bodily injury" within the plain meaning of the term. With respect to the claims in paragraph (d) above relating to Ms. Suess' testimony concerning aggravation of her asthma, construing the facts in the light most favorable to her, this claim of injury could possibly fall within the plain meaning of the Policies' definition of "bodily injury" as a "sickness or disease." However, Ms. Suess points to no evidence to support or suggest that her asthma problems were a physical manifestation of her emotional distress. Indeed, by her own testimony, ash and dust from a fire caused her asthma flare-up.[9] This causation runs directly counter to the Homeowners' fundamental assertion that the injuries suffered were "result[s] of the emotional distress caused by having to endure continuous and repeated excessive sound transmission," (Doc. # 218 at 27) and cannot serve to bolster Ms. Suess' claim. Finally, Ms. Suess' allegations that sounds of running water and other noises caused her to wake in the night and to lose sleep are insufficient to establish "bodily injury" due to causation problems. As with Mr. Hosler's allegations, by Ms. Suess' own testimony, the cause of her lost sleep was noise in her apartment. (Doc. # 215, Ex. 9 at 36, ll. 1-3) But even if Ms. Suess could establish that her lost sleep was a physical manifestation of her emotional distress, as set forth above, sleeplessness is not "bodily injury" within the plain meaning of the term and, therefore, cannot serve to trigger coverage under the Policies. See ERA Franchise Sys., 2000 WL 192834, at *6, 2000 U.S.App. LEXIS 2493, at *18; SL Indus., 128 N.J. at 201, 607 A.2d at 1273. Because Ms. Suess makes no allegations of "bodily injury" as physical manifestations of her emotional distress, there can be no genuine issue of fact regarding whether coverage exists with respect to her claims in the Underlying Action.
3. Ms. Eytcheson
Ms. Eytcheson makes similar references to those made by Mr. Hosler and Ms. Suess to support her claim, citing one page of the Tenth Circuit Opinion (which summarizes Mr. Hosler's and Ms. Suess' testimony) and several lines of her trial testimony. The Court accepts as accurate the following summary of the relevant portions of Ms. Eytcheson's testimony, as set forth in the Homeowners' Response to the Motion for Summary Judgment (Doc. #218 at 22-23):
(a) [she had] problems sleeping and problem with her lower back (p. 236, ll. 2-3);
(b) [she suffered] embarrassment at hearing toilets flush (p. 237, ll. 10-14);
(c) she could hear people urinating in other units when in her own unit (p. 238, ll. 10-14);
(d) she could hear people speaking in a normal voice, televisions, opening and closing of microwave doors as well as beeping (p. 239, l. 2 to p. 241, ln. 7);
(e) she had to try to sleep with the fan on but that did not work (p. 236, l. 5 to p. 237, l. 1);
(f) these noises physically kept her awake and disturbed her rest (p. 241, l. 6 to p. 242, l. 18);
(g) she could hear people walking around upstairs (p. 242, ll. 3-12), *1118 vacuums (p. 245, ll. 2-4), and the ringing of telephones in other units (p. 245, ll. 12-21);
(h) she could hear cupboard doors open and close, doorways opening and closing, and people talking and walking in the hallway (p. 242, l. 14 to p. 244, l. 5);
(i) she was forced to move into her living room to sleep at night to try and avoid the noise (p. 247, l. 22 to p. 248, l. 10);
(j) she "found [herself] from not sleeping at night to wanting to sleep all the time. That's not only because I am tired because I don't want to have to deal with all of this." (p. 260, ll. 13-18);
(k) she felt paranoid (p. 260, l. 22);
(l) she found herself in "a daze" because of all of this (p. 261, l. 1);
(m) she found herself "so anxious that I have been rude and obnoxious and demanding to the people that I work with and that's not who I am. I have been so embarrassed about how I have been acting." (p. 261, ll. 14-18);
(n) she no longer felt safe and comfortable in her home (p. 261, l. 25 to p. 262, l. 1);
(o) directly related to the sound and repair of sound issues, she was unable to breathe without inhaling dust (p. 282, ll. 12-15).
Ms. Eytcheson's allegations do not render the term "bodily injury" ambiguous. Like those of the other Homeowners, Ms. Eytcheson's allegations concerning what she could hear in her unit, what noise-avoidance actions she took, what non-habitual actions she took, and what she inhaled are irrelevant, as they are not allegations of physical harm or "bodily injury" within the plain meaning of the term. Similarly, her allegations concerning her feelings of paranoia, anxiety, dazed confusion, lack of safety, and embarrassment necessarily all concern purely emotional harm and not "bodily injury" within the plain meaning of the term. As set forth above, loss of sleep is not "bodily injury" within the plain meaning of the term. See ERA Franchise Sys., 2000 WL 192834, at *6, 2000 U.S.App. LEXIS 2493, at *18; SL Indus., 128 N.J. at 201, 607 A.2d at 1273. Therefore, Ms. Eytcheson's allegations of lost sleep cannot serve to create an issue of fact regarding coverage under the Policies.
Ms. Eytcheson's only claims that could be considered allegations of "bodily injury" within the plain meaning of the term concern her back pain and weight gain, both of which are arguably physical harms. Ms. Eytcheson's testimony regarding back pain was a passing statement made in response to the question "[d]id you experience any sound problems at your unit when you moved in?" Her response was, "I had noticed noise in my bedroom where the water lines go, it sounded like tapping. And I really didn't think a whole lot about it. I had slept off and on with a fan previously. And I started having problems with my lower back and I had a hard time sleeping in my bed or whatever. . . ." (Doc. # 215, Ex. 12 at 236, ll. 2-3.) Later in her testimony, Ms. Eytcheson states, "Well, the couch was uncomfortable because of my lower back so I did have difficulty sleeping on the couch." (Doc. # 215, Ex. 12 at 248, ll. 9-10) Nothing in this testimony establishes that the "problems with [her] lower back" were physical manifestations of her emotional distress resulting from the actions of BCORP. This limited testimony is insufficient to establish that Ms. Eytcheson's back pain was a physical manifestation of her emotional distress and, therefore, cannot support her claim for bodily injury *1119 such as would trigger coverage under the Policies.
Ms. Eytcheson's testimony concerning her weight gain is similarly sparse and dismissive. After being asked whether she was "comfortable" and whether she felt "at home" at Arlington, Ms. Eytcheson testified, very generally, that "[d]uring the last 4 years [she had] probably gained about 30 to 40 pounds." (Doc. # 215, Ex. 12 at 262 ln. 7.) In totality, Ms. Eytcheson testified that she gained weight and "put food in [her] mouth to comfort [herself]." (Id. at 262 ln. 7-9.) This testimony lacks causation and is not sufficient to raise a question of fact as to whether her weight gain was a physical manifestation of her emotional distress so as to trigger coverage under the Policies. Accordingly, the Court gives no further consideration to either Ms. Eytcheson's back pain or weight gain.
CONCLUSION
Based on the foregoing, it is ORDERED that:
1. Admiral Insurance Company's Renewed Motion for Summary Judgment (Doc. # 214) is GRANTED.
2. The Clerk of the Court shall enter judgment in favor of Plaintiff Admiral and against Defendants Hosler, Suess, and Eytcheson on Plaintiff Admiral's cross-claims for declaratory judgment.
3. Plaintiff Admiral Insurance Company may have its costs by filing a bill of costs within eleven days of this Order.
NOTES
[1] On October 31, 2008, this case was reassigned from Judge Edward W. Nottingham to Judge Christine M. Arguello.
[2] To this Court's understanding, BCORP and related individuals formerly involved in this case undertook two condominium projects, "Arlington" and "Canterbury," which were the subjects of two separate faulty construction suits in Colorado State Court. The Canterbury case was ultimately resolved through arbitration, while the Arlington case was fully litigated through trial. Accordingly, in the interest of clarity, this Court will refer to only the Arlington case as the "Underlying Action."
[3] This case has a lengthy and contentious history, set forth fully in the Court's March 7, 2007 Order granting Admiral's first motion for summary judgment. Thus, the Court presents only an abbreviated version.
[4] At one point, some twenty-five additional individuals and four additional entities were parties to this case. All have since been dismissed. Accordingly, the Court makes no more reference to these individuals and entities than necessary for clarity.
[5] Because this Court's jurisdiction is premised upon diversity of citizenship, Colorado substantive law guides this case. See Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir.2003).
[6] Paragraph 13 alleges: "Both the 2001 and 2002 Policies obligate Admiral to pay all sums that any named insured becomes legally obligated to pay for property damage, bodily injury or personal injury to which either Policy applies."
Paragraph 18 alleges: "The property damage, bodily injury, personal injury and loss of use alleged in the Arlington Action falls within the scope of the insurance coverage afforded to Plaintiffs in both the 2001 Policy and the 2002 Policy."
[7] Although Homeowners' briefing suggests that Mr. Hosler was exhausted from the sound issues, Mr. Hosler's trial testimony is as follows, "I exhaustedI went through every step I could to try and resolve this issue." (Doc. # 215, Ex. 7 at 131.)
[8] The trial testimony indicated that while repairs were being made to her unit, Ms. Suess stayed in a non-air-conditioned unit in a different building and, in that unit, ash and dust from a forest fire that came through open windows caused her asthma to flare up. (Doc. # 215, Ex. 9 at 32:18-33:9)
[9] In keeping with the Tenth Circuit Order, the Court refuses to consider allegations contained in Ms. Suess's Responses to Interrogatories concerning her asthma, and looks only to the testimony before the jury in the Underlying Action.
| {
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-30218 Charles R. Fulbruge III
Clerk
ANGELA DAWN DOWLING
Plaintiff
v.
GEORGIA-PACIFIC CORPORATION
Defendant - Third-Party Plaintiff - Appellee
v.
KELLOGG BROWN & ROOT, INCORPORATED
Third-Party Defendant - Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:02-CV-00637
Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Third-Party Defendant-Appellant Kellogg Brown & Root, Incorporated
appeals the district court’s order granting summary judgment in favor of
Georgia-Pacific Corporation based on the court’s interpretation of the indemnity
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-30218
clauses in a construction contract. We are unable to agree with the district
court’s interpretation of the contract and vacate the judgment and remand for
further proceedings.
I
Angela Dawn Dowling, an employee of KBR, was injured at a Georgia-
Pacific facility in June 2001. In 1999, Georgia-Pacific contracted with KBR to
perform work at Georgia-Pacific’s Port Hudson, Louisiana facility. The work
was provided pursuant to a Cost Plus Fee Construction Agreement.1 Dowling
was one of the KBR employees performing work under the contract.
Dowling filed suit against Georgia-Pacific, alleging her injuries were the
result of Georgia-Pacific’s negligence. Georgia-Pacific filed a Third-Party
Complaint against KBR and Pacific Employees Insurance Company, KBR’s
insurer, alleging KBR was required to defend and indemnify Georgia-Pacific
against Dowling’s claims.2 KBR filed a counterclaim against Georgia-Pacific
alleging Georgia-Pacific’s negligence was the cause of Dowling’s injuries and that
under the terms of the contract, Georgia-Pacific was required to reimburse KBR
for the costs related to its defense of Dowling’s claims. In April 2007, Georgia-
Pacific settled Dowling’s claims. KBR did not participate in the settlement. The
settlement did not make any allocation of fault as between Georgia-Pacific and
KBR.
Georgia-Pacific moved for summary judgment on its claims against KBR
on the basis that the contract required KBR to fully indemnify and defend
Georgia-Pacific. Georgia-Pacific argued KBR was required to reimburse
Georgia-Pacific for the full amount of its settlement with Dowling, as well as its
attorneys’ fees and expenses related to the settlement and those incurred in
1
The contract specifies Louisiana law shall apply to it.
2
The district court dismissed Pacific Employees Insurance Company as a party to the
suit.
2
No. 08-30218
pursuing the Third-Party Complaint. KBR filed a motion for partial summary
judgment asking the court to make an allocation of fault between the parties and
arguing that KBR is only required to indemnify Georgia-Pacific to the extent its
fault caused plaintiff’s injury. KBR acknowledged that it was obligated to
reimburse Georgia-Pacific for the costs of defending the suit, but asserted that
Georgia-Pacific was similarly obligated to reimburse KBR for those costs to the
extent Georgia-Pacific was found to be at fault. Additionally, KBR contended
that it was not obligated to pay Georgia-Pacific’s costs and fees in pursuing the
Third-Party Complaint.
The district court granted summary judgment in favor of Georgia-Pacific.
It found that the contract did not require an allocation of fault to be made
between the parties and that KBR was required to defend Georgia-Pacific
against Dowling’s claims and to fully indemnify Georgia-Pacific for the amount
of its settlement with Dowling. The district court also found that KBR was
responsible for costs incurred by Georgia-Pacific in its pursuit for indemnity.
II
We review the district court’s grant of summary judgment de novo,
applying the same criteria as the district court. Travelers Cas. & Sur. Co. of
America v. Baptist Health System, 313 F.3d 295, 297 (5th Cir. 2002). Louisiana
rules of contract interpretation shall apply. See Continental Eagle Corp. v.
Tanner & Co. Ginning, 663 So.2d 204, 206 (La. Ct. App. 1995) (stating that when
a contract specifies the state law to apply to it, that choice shall be given effect
absent a strong public policy consideration to the contrary). Summary judgment
is appropriate if there exists no genuine issue of material fact. FED. R. CIV. P.
(56). Evidence must be viewed in the light most favorable to the nonmoving
party, and any reasonable inferences must be drawn in that party’s favor. In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205-06 (5th Cir. 2007). Here,
both parties moved for summary judgment. Each motion must be reviewed
3
No. 08-30218
independently to allow for these inferences to be made. Ford Motor Co. v. Tex.
Dept. of Transp., 364 F.3d 493, 498 (5th Cir. 2001).
III
A
Georgia-Pacific argues that the indemnity provisions of the contract
require KBR to indemnify Georgia-Pacific for the full amount of its settlement
with Dowling. KBR argues that the district court erred in awarding Georgia-
Pacific indemnity and that it is only obligated to indemnify Georgia-Pacific to the
extent KBR’s negligence caused Dowling’s injury. Georgia-Pacific, which was
sued by Dowling for its own fault, contended that the contract is sufficiently
clear to require KBR to indemnify Georgia-Pacific for its own negligence. The
district court agreed with Georgia-Pacific and held that KBR was required to
fully indemnify Georgia-Pacific.
In order for a party to be indemnified against its own negligence, the
language of the contract must be clear and unequivocal. Berry v. Orleans Parish
School Bd., 860 So.2d 283, 285 (La. 2002). “[G]eneral words alone, i.e., ‘any and
all liability’, do not necessarily import an intent to impose an obligation so
extraordinary and harsh as to render an indemnitor liable to an indemnitee for
damages occasioned by the sole negligence of the latter.” Arnold v. Stupp Corp.,
205 So.2d 797, 799 (La. Ct. App. 1967). In Arnold, the court held that such
general language in the contract did not evidence the parties’ intent to require
one to indemnify the other for the latter’s own negligence. Id.
In cases where indemnity was awarded to a party for its own negligence,
the contracts in question have included language explicitly requiring such an
interpretation. In Polozola v. Garlock, Inc., the contract language required a
contractor to indemnify the company it was working for for any injury “whether
caused by [the company’s] negligence or otherwise.” 343 So.2d 1000, 1002 (La.
4
No. 08-30218
1977). This is an example of the clear and unequivocal language required to
cause a party to be indemnified for its own negligence.
Here, the contract requires KBR to indemnify Georgia-Pacific for losses
arising out of the performance of the contract for which KBR is the cause or is
liable for. The indemnity provisions of the contract provide:
24.1 Except as provided in Article 16 of these General Conditions and to
the fullest extent permitted by law, Contractor [KBR] shall defend,
protect, indemnify and hold G-P harmless from any and all losses,
costs, expenses, damages, liabilities, payments, recoveries and
judgments, including those arising out of bodily injury or property
damage, including attorney’s fees (hereinafter in this Article 24
referred to as “Loss”), claimed, threatened, incurred by or recovered
against G-P and arising out of or resulting from the performance or
non-performance of the Work or this Contract by Contractor or its
consultants or Subcontractors. To the extent the Loss is caused, in
part, by the joint, concurrent or contributory negligence of G-P, its
agent or employees, Contractor shall provide said indemnification to
the extent or degree Contractor is the cause of or liable for the Loss.
24.2 Contractor shall, at Contractor’s sole cost and expense, defend
against all actions, suits or other proceedings that may be brought
on any and all such claims for which Contractor may have an
indemnification obligation under Paragraph 24.1, and any appeals
that may be made thereon; and to pay or satisfy any judgment or
decree that may be rendered against G-P in any such action, suit or
legal proceeding in accordance with and to the extent provided in
Paragraph 24.1. G-P shall indemnify Contractor from any Loss
incurred by Contractor in connection with any such actions, suits or
proceedings to the extent or degree the final judgment decree is based
upon the sole, joint, concurrent or contributory negligence of G-P.
(emphasis added). No language included in these provisions requires KBR to
indemnify Georgia-Pacific for its own negligence. Instead, the language of
Paragraph 24.1 states: “To the extent the Loss is caused, in part, by the joint,
concurrent or contributory negligence of G-P, its agent or employees, Contractor
5
No. 08-30218
shall provide said indemnification to the extent or degree Contractor is the cause
of or liable for the Loss.” (emphasis added).
Thus, the contract between Georgia-Pacific and KBR does not include the
mandatory clear and unequivocal language requiring KBR to indemnify Georgia-
Pacific for Georgia-Pacific’s own negligence. To the contrary, it limits KBR’s
obligation to indemnify Georgia-Pacific to the extent that KBR is the cause of a
Loss. Absent the necessary language that would require KBR to indemnify
Georgia-Pacific for its own negligence, the indemnity provisions do not require
KBR to indemnify Georgia-Pacific for its settlement with Dowling. We agree
with KBR that KBR’s indemnity obligation under Paragraph 24.1 of the contract
is limited to the degree of KBR’s fault and cannot be determined without an
allocation of fault.
B
Georgia-Pacific also argues that the insurance provisions of the contract
require KBR to indemnify Georgia-Pacific in full. The contract requires KBR to
maintain comprehensive liability insurance in the amount of $10 million and to
name Georgia-Pacific as an additional insured of the policy. The insurance
provisions provide:
15.2 The Comprehensive Liability Insurance policies . . . shall include .
. . Blanket Written Contractual . . . liability coverage. Blanket
Written Contractual Liability Insurance shall specifically include
Contractor’s [KBR’s] indemnification obligations under the
Contract.
15.3 . . . Except for the Workers’ Compensation Insurance, and to the
extent of Contractor’s obligations under this agreement, G-P shall be
an additional insured on all such policies of insurance. The
coverages afforded under these insurance policies shall be the
primary coverage in all instances regardless of whether or not G-P
has similar coverage. . . . Contractor shall be responsible for
payment of any and all deductibles from insurance claims under
these policies. . . . The maintenance of this insurance shall not in
any way operate to limit the liability Contractor to G-P.
6
No. 08-30218
15.4 Contractor shall indemnify and hold G-P harmless from and against
any and all loss, cost, damage and/or expense actually incurred by
G-P as a consequence of any loss sustained as a result of the
occurrence of a peril for which coverage is required of the Contractor
under this agreement, and from and against any and all loss, cost,
damages and/or expense incurred by G-P as a consequence of the
application of any exclusions or deductibles under Contractor’s
insurance described herein, or any of the other policies of insurance
required of Contractor under Article 16 hereof.
(emphasis added). KBR obtained the necessary insurance from Pacific
Employees Insurance Company. The insurance policy covers Georgia-Pacific by
virtue of a Blanket Additional Insured Endorsement. The endorsement provides
that if a contract between a Named Insured and another party requires that
additional party to be a Additional Insured, “ . . . that subject to the coverages
and limits provided in this policy such other party shall be considered as
Additional Insured on this policy without further action . . . .” Such coverage is
limited to “the coverages and the minimum amounts of insurances required to
be carried by the Named Insured under the contract and only for the liabilities
the Named Insured assumes under the contract.”
Georgia-Pacific argues Paragraph 15 requires KBR to fully indemnify the
costs of its settlement with Dowling. However, Paragraph 15.2 requires KBR’s
liability insurance to “specifically include Contractor’s indemnification
obligations under the Contract” and Paragraph 15.3 requires Georgia-Pacific to
be an additional insured “to the extent of Contractor’s obligations.” The
insurance policy only covers “the liabilities [KBR] assumes under the contract.”
Because the contract’s limitations on KBR’s obligation to provide insurance is
consistent with its indemnity obligation, the insurance obligations do not expand
Georgia-Pacific’s indemnity rights under the contract.
As discussed above, KBR is only required to indemnify Georgia-Pacific to
the extent KBR is liable for or the cause of Dowling’s injuries. The contract does
7
No. 08-30218
not clearly and unequivocally require KBR to indemnify Georgia-Pacific for
Georgia-Pacific’s own negligence. KBR’s indemnity obligation is limited to its
proportion of fault in causing Dowling’s injury. In order to make this decision,
the district court must determine the facts from the evidence to allocate fault
between the parties. The district court shall then enter judgment in favor of
Georgia-Pacific only to the extent KBR’s fault caused Dowling’s injury.
C
Georgia-Pacific also argues KBR’s duty to defend requires KBR to
reimburse Georgia-Pacific for attorneys’ fees incurred in defending Dowling’s
claim, and KBR acknowledges that it is obligated to defend Georgia-Pacific with
respect to Dowling’s claim. Georgia-Pacific relies on Paragraph 24.2 of the
contract in support of its arguments, which provides:
Contractor shall . . .defend against all actions . . . for which Contractor
may have an indemnification obligation . . . and to pay or satisfy any
judgment or decree that may be rendered against G-P in any such action
. . . to the extent provided in Paragraph 24.1. G-P shall indemnify
Contractor from any Loss incurred by Contractor in connection with any
such actions . . . to the extent or degree the final judgment decree is based
upon the sole, joint, concurrent or contributory negligence of G-P.
As stated above, KBR has acknowledged that it is required to provide a
defense against Dowling’s claims. It is unclear from the record to what extent
KBR has paid for this defense. On remand, the parties should present sufficient
evidence to the district court on this issue so that the court may determine if any
amounts remain due.
D
Georgia-Pacific also argues it is entitled to recover attorneys’ fees incurred
as a result of pursuing its Third-Party Complaint for indemnity against KBR.
It contends that these fees were incurred “arising out of or resulting from the
8
No. 08-30218
performance or non-performance of the Work or this Contract” by KBR. The
district court agreed with this position.
For a party to be indemnified for costs related to pursuing an indemnity
claim, the contract must specifically provide for such a recovery. See Wuertz v.
Tobias, 512 So.2d 1209, 1212 (La. Ct. App. 1987). In the absence of such a
provision, the general rule is “that an indemnitee may recover from its
indemnitor only those costs and expenses incurred in defense of a claim against
the principal demand.” Id. If an indemnity clause is broad and does not address
the indemnitee’s recovery, the agreement as a whole may be examined to
ascertain the parties’ intent. See Naquin v. La. Power & Light Co., 951 So.2d
228, 232 (La. Ct. App. 2006).
Here, attorneys’ fees are discussed in Paragraph 24.1 as a loss “arising out
of or resulting from the performance or non-performance of the Work or this
Contract” by KBR. There is no reference to reimbursement of attorneys’ fees in
connection with pursuing an indemnity claim. In Wuertz, the contract
specifically allowed for the collection of attorneys’ fees incurred in connection
with the terms of the indemnity paragraph. 512 So.2d at 1212. The contractual
language here lacks the specificity necessary to allow for the reimbursement of
these attorneys’ fees. Therefore, Georgia-Pacific is not entitled to recover fees
incurred in connection with its pursuit of the Third-Party Complaint.
IV
For the reasons set forth above, we vacate the judgment of the district
court and remand this case so that the district court can determine the fault
allocable to KBR and Georgia-Pacific in causing Dowling’s injury. The court
shall then enter judgment in favor of Georgia-Pacific and against KBR for that
portion of the settlement sum (together with its attorneys’ fees incurred in
9
No. 08-30218
defending Dowling’s claim) Georgia-Pacific paid Dowling that represents KBR’s
percentage of fault in causing Dowling’s injury.3
VACATED and REMANDED
3
KBR’s argument that it is eligible for reimbursement of costs of providing Georgia-
Pacific’s defense against Dowling’s claims is supported by Paragraph 24.2 of the contract,
which provides “. . . G-P shall indemnify Contractor from any Loss incurred by Contractor in
connection with any such actions . . . to the extent or degree the final judgment decree is based
upon the sole, joint, concurrent or contributory negligence of G-P.” If, after the district court
has reviewed the evidence and allocated fault between the parties, it determines that KBR is
entitled to such reimbursement, that amount shall be used to offset the judgment for Georgia-
Pacific.
10
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Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity
of this document
Appellate Court Date: 2016.12.08
09:52:33 -06'00'
People v. Williams, 2016 IL App (1st) 133459
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption HALIK WILLIAMS, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-13-3459
File September 30, 2016
Rehearing denied October 19, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 00-CR-3807; the
Review Hon. Matthew E. Coghlan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal State Appellate Defender’s Office, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needham, and Margaret G. Lustig, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE NEVILLE delivered the judgment of the court, with
opinion.
Justice Mason concurred in the judgment and opinion.
Presiding Justice Hyman specially concurred, with opinion.
OPINION
¶1 Halik Williams, the defendant, appeals from the circuit court’s dismissal, upon the State’s
motion, of his petition and supplemental petition for relief pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant contends that
the court erred in dismissing the petitions because he made a substantial showing that he was
denied effective assistance of trial and appellate counsel. He also contends that the court erred
because the petitions made a substantial showing of actual innocence based upon new evidence
that establishes no one that defendant was accountable for caused the victim’s death, and,
therefore, the victim’s death was not first degree murder. We affirm.
¶2 Following simultaneous, but severed, bench trials with codefendants Warren Hardy and
David Sapp, defendant was found guilty of first degree murder based upon a theory of
accountability. Defendant was sentenced to 30 years in prison.
¶3 The evidence at defendant’s trial established that the victim, Anthony King, died from
electrocution on the third rail of Chicago Transit Authority train tracks on September 5, 1999.
The victim’s death arose out of confrontation at the Morse Station platform between a group of
Gangster Disciples consisting of defendant, codefendants, and Jason Moody, and a group of
current and former Vice Lords consisting of the victim, Jonathan Lejman, Dennis Myles, and
Dwayne Johnson.
¶4 At trial, Jason Moody testified that he was walking when he heard a “woo, woo” so he
looked up and saw codefendant Sapp on the “el” platform waving him up. As Moody
continued walking, he saw Lawrence Brooks sitting in a parked car and codefendant Hardy on
the street. Codefendant Hardy said that some “hooks” were on the platform. Moody explained
that “hooks” was a disrespectful term for members of the Vice Lords gang. Moody was a
member of the Gangster Disciples and the Morse “el” stop was part of the gang’s territory.
¶5 Once on the platform, Moody saw the victim and codefendant Hardy fighting on the train
tracks. Codefendant Hardy was punching the victim, and the victim was trying to push
codefendant Hardy away. At one point, Moody “heard sparks.” The victim was on the third rail
and codefendant Hardy was on the platform. Moody then saw defendant hit the victim on the
head with a cane five times. After the fifth blow, the cane broke.
¶6 Jonathan Lejman testified that he was a former member of the Vice Lords and grew up with
the victim. On the night of the victim’s death, Lehman, the victim, Myles, and Johnson were
celebrating both the victim’s release from prison and the victim’s birthday. Although the group
exited the train at the Morse stop, they “had no business over there” because it was Gangster
Disciple territory, so they went back up to the platform. Lejman, Myles and the victim sat on a
bench. Johnson went to the other entrance of the platform.
¶7 Defendant, who was holding a cane, and codefendant Sapp then approached. Defendant
asked if Lejman was “White C.” Lejman stood up and replied that “White C” was dead. He
stated that his group was not “on any gang banging or none of that”—that is, they were not
looking for trouble. Codefendant Sapp replied, “We’re hook killers.” Lejman understood this
to mean that codefendant Sapp’s group belonged to the Vice Lords. As Lejman continued to
say that his group was just trying to get home, he moved closer to defendant, who was “being
fidgety,” so that defendant would not be able to swing the cane at him. As Lejman moved
closer, defendant said “Man, didn’t I tell your bitch ass to back up off me?” Lejman backed up.
-2-
Shortly thereafter, defendant swung the cane at Lejman. Lejman, the victim, and Myles all ran
to the end of the platform. Lejman jumped on the tracks and kept running. He stopped when he
did not hear anyone behind him. When Lejman turned around, he saw defendant swinging a
cane at someone on the tracks. He ran back and discovered the victim on the tracks.
¶8 Dennis Myles testified that although he was in a gang, he was not “gang banging” that
night. When defendant took a swing at Lejman with the cane, Lejman ran away. Myles and the
victim followed. When Myles saw Lejman jump onto the tracks and defendant “fixing to go
after him,” Myles turned around. Although the victim initially turned around, the victim then
jumped onto the tracks. Myles followed the victim onto the tracks and ran past him. Myles then
heard “Oh, we got one!” and turned around to see the victim “on the floor.” Defendant was on
the tracks, and he hit the victim three times in the head with the cane. During
cross-examination, Myles acknowledged that he had made a statement to police which
indicated that the victim jumped off the platform. However, he testified that that the person
who transcribed his statement “didn’t hear [him] all the way right,” and that the statement was
incorrect.
¶9 Detective Steve Schorsch testified that he and another detective spoke with defendant on
September 7, 1999, in an interview room at Area 3. He was also present when defendant later
spoke to an assistant State’s Attorney. Defendant declined to make a written or videotaped
statement; rather, defendant agreed to say what had happened. Schorsch took notes as
defendant spoke. Defendant later reviewed these notes and agreed that they were accurate.
¶ 10 Defendant stated that he was driving with codefendant Sapp and Sapp’s cousin, Lawrence
Brooks, when he looked up and saw “White C.” He told Brooks to pull over. Defendant and
codefendant Sapp got out of the car. Defendant was holding a cane. Once up on the platform,
codefendant Sapp stated, “They were Vice Lord killers, hook killers.” Codefendant Hardy and
Moody were also on the platform. Defendant asked one of the men if he was “White C.” At one
point “White C” and the two men with him began to run. Defendant chased “White C.” The
other two men ran toward codefendant Hardy. As defendant turned, he saw codefendant Hardy
grab one of the men. He watched as codefendant Hardy and the man fell onto the train tracks.
Codefendant Hardy pushed the other man onto the tracks and that man was “electrified.”
¶ 11 Assistant Chief Medical Examiner Mitra Kalelkar testified that she performed an autopsy
on the victim. She noted electrical burns on the victim’s abdomen, hands, and left wrist. There
were also lacerations and cuts on the victim’s head and face. After an internal and external
examination, she concluded that the victim died as the result of electrocution.
¶ 12 In finding defendant and codefendants guilty of first degree murder, the trial court relied on
the common design rule as stated in People v. Terry, 99 Ill. 2d 508, 514-15 (1984). In denying
defendant’s motion for a new trial which argued, in pertinent part, that the victim’s fall to the
tracks was an accident after the completion of the underlying felony of assault or battery, the
trial court stated that when two or more persons join together to commit an offense, even “a
minor offense which involves violence,” the parties are responsible for “everything” that
occurs as a result of the agreement. The court stated that the circumstances of the case “all lead
to the conclusion that these parties entered into an agreement to at least commit an assault or
misdemeanor battery on the victim in this case, which resulted in his death.” The court
“agreed” that “perhaps” defendant and codefendants did not set out to commit a murder, “but
they are responsible for all of the consequences of that which they did set out to do.” The court
then sentenced defendant to 30 years in prison.
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¶ 13 On appeal, defendant contended that the evidence was insufficient to prove beyond a
reasonable doubt that he was guilty of first degree murder pursuant to an accountability theory.
Defendant argued, inter alia, that he did not have the intent or knowledge required to support a
murder conviction.
¶ 14 In rejecting defendant’s argument this court found that the evidence “clearly established”
that defendant was not only present during the crime, but that he “actively devised and initiated
the encounter” with the victim. See People v. Williams, No 1-03-0292, slip order at 9-10
(2005) (unpublished order under Supreme Court Rule 23). This court noted that defendant was
the first to notice the Vice Lords on the platform, he directed Brooks to park, he confronted the
Vice Lords on the platform, and he struck the victim five times on the head with a cane after the
victim was electrocuted. Id. We therefore concluded that the trial court did not err in finding
that there was a common design to establish defendant’s intent, and properly held defendant
accountable for the victim’s death. Id. at 9.
¶ 15 In 2005, defendant filed a pro se petition for postconviction relief alleging, inter alia, that
he was denied the effective assistance of trial counsel by counsel’s failure to impeach Jason
Moody with an affidavit in which Moody averred that he struck the victim on the head with a
cane and to argue at trial that defendant was actually innocent because it was Moody, rather
than defendant, who struck the victim on the head with a cane. Attached to the petition in
support was defendant’s unnotarized affidavit.
¶ 16 In his affidavit, defendant averred that Moody met with trial counsel’s investigator
sometime in 2000. Defendant further averred that trial counsel told him that during this
meeting Moody admitted that Moody was the person who struck the victim with a cane after
the victim was electrocuted. Defendant then averred that trial counsel “assured” him that
counsel would subpoena the investigator to testify at trial regarding this meeting, and counsel
would submit Moody’s affidavit as evidence at trial. However, trial counsel did not submit the
affidavit at trial. When defendant asked trial counsel why the affidavit was not submitted at
trial and why counsel did not cross-examine Moody about the affidavit, counsel replied that he
did not believe that the State had sufficient evidence to convict defendant, and he therefore did
not think that he needed to present the testimony of the investigator at trial.
¶ 17 Defendant also averred that Moody came to visit him twice before trial. During the first
meeting, Moody stated that if defendant wanted him to “tell the truth” defendant had to pay
him $5000 before trial and $5000 after trial. During the second meeting, defendant told Moody
that he needed more time to get the money. Moody responded that defendant’s “time was up”
and left. Defendant averred that although he told trial counsel and the jail’s Office of Internal
Affairs about the first meeting, so that the second meeting could be recorded, he did not receive
a response from either the jail or trial counsel.
¶ 18 Defendant finally averred that he had tried unsuccessfully to obtain a copy of Moody’s
affidavit and the name of the investigator from trial counsel. However, trial counsel refused to
disclose the name of the investigator or to give defendant a copy of Moody’s affidavit and the
discovery from the case because defendant had a balance due of $3400.
¶ 19 The circuit court docketed the petition and appointed postconviction counsel. In August
2011, postconviction counsel field a certificate pursuant to Illinois Supreme Court Rule 651(c)
(eff. Dec. 1, 1984), stating that counsel had reviewed defendant’s pro se petition for
postconviction relief, certain police reports, other discovery material, the trial transcript,
common-law record, and the order issued in defendant’s direct appeal. The certificate further
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stated postconviction counsel had communicated with defendant in person and over the phone
and had interviewed or investigated “a number of witnesses” in an effort to further substantiate
defendant’s claims. The certificate finally stated that counsel was “unable to supplement or
amend” defendant’s pro se petition. The State then filed a motion to dismiss.
¶ 20 In December 2011, private counsel filed an appearance on behalf of defendant. In light of
private counsel’s statement to the court that a supplemental petition would be filed, the State
requested and was granted leave to withdraw its motion to dismiss.
¶ 21 In January 2013, counsel filed a supplemental postconviction petition. The supplemental
petition alleged that newly discovered evidence—the affidavit of codefendant
Sapp—established that defendant was not guilty of murder because the victim fell onto the
tracks accidently. The supplemental petition further alleged that defendant had made a
substantial showing that there was a reasonable probability that a new trier of fact would find
defendant not guilty of first degree murder and would instead, “at most,” find him guilty of
involuntary manslaughter. The supplemental petition finally alleged that trial counsel was
ineffective because he failed to argue that defendant was guilty of the lesser-included offense
of involuntary manslaughter. Attached to the supplemental petition in support was the affidavit
of codefendant Sapp.
¶ 22 In his affidavit, codefendant Sapp averred that he told police that he, defendant, and
codefendant Hardy went to the train platform in order to fight with rival gang members.
Defendant walked up to Lejman (who was standing with the victim), Myles, and “Little
Wayne.” Defendant was holding a cane and swung it to prevent Lejman “from getting in his
face.” Lejman ran away and defendant chased him. The victim and Myles began to run after
defendant but then turned around and ran the other way. At one point, Myles crossed in front of
the victim, jumped down onto the train tracks, and ran away. This action seemed to “catch” the
victim off guard, and the victim lost his balance and fell onto the tracks. Codefendant Hardy
then either fell or jumped down. Codefendant Sapp averred that although he told the police that
“the whole thing” was an accident, the police said that defendant and Moody had already made
statements. The police told him what to say so that he could “go home.” The State then filed a
motion to dismiss. Attached to defendant’s response to the State’s motion was a notarized copy
of defendant’s original affidavit. The circuit court subsequently granted the State’s motion.
¶ 23 On appeal, defendant contends that the circuit court erred when it granted the State’s
motion to dismiss because he made a substantial showing of a constitutional deprivation.
Defendant first contends that he was denied the effective assistance of trial counsel because
trial counsel failed to impeach Moody with evidence that it was Moody, not defendant, who
struck the victim with a cane. Defendant further contends that he was denied the effective
assistance of appellate counsel because appellate counsel failed to challenge the sufficiency of
the evidence supporting defendant’s conviction when the trial court found that neither
defendant nor any codefendant had the “requisite mental state to commit first degree murder.”
Defendant finally contends that he has made a substantial showing of actual innocence based
upon new evidence which established that no one that he was “accountable for” caused the
death of the victim and, therefore, the victim’s death could not be first degree murder.
¶ 24 The Act provides a procedural mechanism through which a defendant may assert a
substantial denial of his constitutional rights in the proceedings which resulted in his
conviction. 725 ILCS 5/122-1 (West 2004); People v. Davis, 2014 IL 115595, ¶ 13. If the
circuit court does not dismiss the postconviction petition as frivolous or patently without merit,
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then the petition advances to the second stage where counsel is appointed to represent the
defendant, if requested (725 ILCS 5/122-4 (West 2004)), and the State is allowed to file
responsive pleadings (725 ILCS 5/122-5 (West 2004)).
¶ 25 At the second stage of proceedings under the Act, it is the defendant’s burden to make a
“substantial showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473
(2006). A “substantial showing” of a constitutional violation is a measure of the legal
sufficiency of a defendant’s well-pled allegations of a constitutional violation which, if proved
at an evidentiary hearing, would entitle him to relief. People v. Domagala, 2013 IL 113688,
¶ 35. Therefore, all well-pled facts in the petition that are not positively rebutted by the trial
record are taken to be true. Pendleton, 223 Ill. 2d at 473. If a defendant makes a substantial
showing that his constitutional rights were violated, the matter proceeds to a third stage
evidentiary hearing where the circuit court serves as a fact finder, resolves evidentiary
conflicts, weighs credibility, and determines the weight to be given testimony and evidence.
Domagala, 2013 IL 113688, ¶¶ 34, 46. We review the circuit court’s dismissal of a
postconviction petition at the second stage of proceedings under the Act de novo. Pendleton,
223 Ill. 2d at 473.
¶ 26 Defendant first contends that his petitions made a substantial showing that he was denied
the effective assistance of trial and appellate counsel.
¶ 27 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, “a
defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness and that this substandard performance created a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different.” People v.
Graham, 206 Ill. 2d 465, 476 (2003). When challenging appellate counsel’s performance, a
defendant must show both that appellate counsel’s performance was deficient and that, but for
counsel’s errors, there is a reasonable probability that the appeal would have been successful.
People v. English, 2013 IL 112890, ¶ 33.
¶ 28 Because the failure to satisfy either prong of the Strickland test precludes a finding of
ineffective assistance of counsel (People v. Enis, 194 Ill. 2d 361, 377 (2000)), a court “need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies” (Strickland, 466 U.S. at 697).
Our supreme court has held that “Strickland requires actual prejudice be shown, not mere
speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122, 135 (2008). Thus, at the second
stage of the proceedings under the Act, defendant has the burden to make a substantial showing
that a reasonable probability exists that the outcome of the proceedings would have been
different had his counsel’s performance been different. See People v. Harris, 206 Ill. 2d 293,
307 (2002) (affirming the trial court’s dismissal of an ineffective assistance of counsel claim
without an evidentiary hearing where the defendant failed to make a substantial showing of
prejudice).
¶ 29 Here, defendant contends that he was denied the effective assistance of trial counsel
because counsel failed to impeach Moody with evidence that it was Moody, rather than
defendant, who struck the victim with a cane. Defendant acknowledges that the affidavit in
which Moody averred that it was he, rather than defendant, who struck the victim with a cane
was not attached to either the pro se postconviction petition or the supplemental petition.
Defendant also acknowledges that he did not attach affidavits from either Moody or trial
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counsel regarding this affidavit, but argues that he cannot be expected to obtain affidavits in
which counsel admits ineffectiveness or Moody admits perjury. He also explains that because
he never knew the investigator’s name, he could not obtain the investigator’s affidavit. The
State responds that defendant’s petitions were properly dismissed because his unsupported
allegations failed to make the requisite substantial showing of a constitutional violation.
¶ 30 Section 122-2 of the Act requires that a petition “shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not
attached.” 725 ILCS 5/122-2 (West 2004). The purpose for requiring “affidavits, records, or
other evidence” is to establish that the allegations in a postconviction petition are capable of
objective or independent corroboration. People v. Delton, 227 Ill. 2d 247, 254 (2008). The
“affidavits and exhibits which accompany a petition must identify with reasonable certainty
the sources, character, and availability of the alleged evidence supporting the petition’s
allegations.” Id.
¶ 31 In the case at bar, defendant’s contention that trial counsel failed to impeach Moody with
an affidavit revealing that it was Moody, rather than defendant, who struck the victim with a
cane lacks any evidentiary support. Even accepting defendant’s argument that he cannot be
expected to obtain an affidavit from trial counsel in which trial counsel admits ineffectiveness
(see People v. Hall, 217 Ill. 2d 324, 333-34 (2005)), defendant has failed to attach an affidavit
or exhibit containing evidence supporting his allegation. Defendant did not attach an affidavit
from Moody or provide an affidavit from the investigator who obtained the affidavit at issue.
In the absence of such affidavits, this court cannot determine whether the proposed witnesses
could have provided testimony favorable to defendant, and further review of this claim is
unnecessary. See Enis, 194 Ill. 2d at 380 (to sustain an ineffective assistance of counsel claim
for counsel’s failure to investigate or present a witness, the defendant’s allegation must be
supported by an affidavit from that witness that contains the witness’s proposed testimony).
Therefore, we conclude that because defendant failed to attach any witness affidavits to his
petitions, his own affidavit notwithstanding, which support this allegation, he has failed to
make a substantial showing that he was denied the effective assistance of trial counsel. See
Domagala, 2013 IL 113688, ¶ 35.
¶ 32 Defendant next contends that he made a substantial showing that he was denied the
effective assistance of appellate counsel because appellate counsel failed to argue on direct
appeal that defendant could not be held accountable for the victim’s murder because no one
that he was accountable for had the requisite mental state to commit first degree murder.
Defendant argues that in the absence of a principal who acted with the requisite mental state, it
was inappropriate for the trial court to apply the common design rule to find him guilty of first
degree murder under a theory of accountability.
¶ 33 To establish ineffective assistance of appellate counsel, a defendant must show both that
appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a
reasonable probability that the appeal would have been successful. English, 2013 IL 112890,
¶ 33. “Appellate counsel is not required to brief every conceivable issue on appeal, and counsel
is not incompetent for choosing not to raise meritless issues.” People v. Maclin, 2014 IL App
(1st) 110342, ¶ 32. When the underlying issue has no merit, a defendant cannot show how he
was prejudiced by appellate counsel’s failure to raise that issue on appeal. People v. Lacy, 407
Ill. App. 3d 442, 457 (2011).
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¶ 34 Here, defendant argues that appellate counsel should have relied upon the trial court’s
comment that neither defendant nor his companions had the requisite mental state to commit
murder to argue that the evidence at trial did not prove defendant guilty of murder beyond a
reasonable doubt. Thus, the question before this court is whether, had appellate counsel argued
that defendant was not proven guilty beyond a reasonable doubt of murder because no one
defendant was accountable for had the requisite mental state to commit first degree murder,
this court would have reversed defendant’s conviction.
¶ 35 Initially, we note that the State contends that this argument is barred by the doctrine of
res judicata when this court on direct appeal considered and rejected defendant’s contention
that he was not proven guilty of first degree murder beyond a reasonable doubt because he did
not have the requisite mental state to commit first degree murder. See People v. Tate, 2012 IL
112214, ¶ 8 (issues raised and decided on direct appeal are barred by res judicata, and issues
that could have been raised but were not are forfeited).
¶ 36 However, in the instant appeal, defendant raises a different contention, whether his lawyer
was ineffective for failing to argue that no one for whom he was accountable had the requisite
mental state to commit first degree murder. A claim is not forfeited or otherwise procedurally
barred when a postconviction petition alleges ineffective assistance of appellate counsel based
upon a failure to raise that claim on direct review. See People v. Youngblood, 389 Ill. App. 3d
209, 214-15 (2009) (“it is well established that a postconviction claim will not be forfeited
where the alleged forfeiture stems from the incompetence of appellate counsel”); People v.
Blair, 215 Ill. 2d 427, 450-51 (2005) (“It has long been held that res judicata and forfeiture do
not apply where fundamental fairness so requires; where the alleged forfeiture stems from the
incompetence of appellate counsel; or where facts relating to the claim do not appear on the
face of the original appellate record.”). In the case at bar, because defendant contends that
appellate counsel was ineffective for failing to challenge the sufficiency of the evidence based
upon codefendants’ lack of the requisite mental state to commit first degree murder, this issue
is not procedurally barred, and we will therefore address it.
¶ 37 When reviewing a challenge to the sufficiency of the evidence, the relevant question is
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. People v.
Brown, 2013 IL 114196, ¶ 48. The trier of fact is responsible for evaluating the credibility of
the witnesses, weighing witness testimony, and determining what inferences to draw from the
evidence. People v. Ross, 229 Ill. 2d 255, 272 (2008). This court reverses a defendant’s
conviction only where the evidence is so unreasonable, improbable, or unsatisfactory that a
reasonable doubt of his guilt remains. Brown, 2013 IL 114196, ¶ 48.
¶ 38 A person commits first degree murder when, in performing the acts which cause a victim’s
death, he knows that such acts will create a strong probability of death or great bodily harm to
the victim. See 720 ILCS 5/9-1(a)(2) (West 1998). A person is legally accountable for the
conduct of another person when, either before or during the commission of an offense, and
with the intent to promote or facilitate such commission, he solicits, aids, abets, or agrees or
attempts to aid such other person in the planning or commission of the offense. 720 ILCS
5/5-2(c) (West 1998). A defendant may be deemed accountable for acts performed by another
pursuant to a common criminal plan or purpose. People v. Taylor, 164 Ill. 2d 131, 140-41
(1995).
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¶ 39 The common design rule provides that when two or more people engage in a common
criminal design or agreement, any acts in the furtherance of that design or agreement
committed by one party are considered to be the acts of all parties to the design or agreement,
and all are equally responsible for the consequences of those further acts. In re W.C., 167 Ill. 2d
307, 337 (1995). Proof of the common design need not be supported by words of agreement
but may be drawn from the circumstances surrounding the commission of the act. Taylor, 164
Ill. 2d at 141.
¶ 40 Here, viewing the evidence at trial in the light most favorable to the State, as we must
(Brown, 2013 IL 114196, ¶ 48), there was sufficient evidence to find defendant guilty beyond a
reasonable doubt of first degree murder under an accountability theory. The evidence at trial
established, through the testimony of Moody, Lejman, and Myles, as well as Schorsch’s
testimony regarding defendant’s statement, that when defendant noticed a group of rival gang
members on the platform, he told Brooks to stop the car and then went to the platform to
confront them. Once on the platform, and after Sapp announced they were “hook killers,”
defendant approached Lejman and swung a cane at Lejman. In the ensuing chaos, codefendant
Hardy grabbed the victim, and both men fell onto the train tracks. Specifically, Moody testified
that codefendant Hardy and the victim fought on the train tracks, and defendant stated that
codefendant Hardy pushed the victim onto the tracks causing the victim to be “electrified.”
¶ 41 Defendant relies on the trial court’s statements that it did not believe that defendant and
codefendants intended to kill anyone, and he concludes that the facts, as found by the trial
court, did not establish the necessary elements of first degree murder. We disagree.
¶ 42 People v. Phillips, 2014 IL App (4th) 120695, is instructive. In that case, the defendant
intended to hit a woman named Frazier in the eye in retaliation for injuries she inflicted on the
mother of his children. The defendant went to Frazier’s home accompanied by his friend,
Shaunessy Grimes. Grimes was to identify Frazier for the defendant because the defendant did
not know her. Grimes brought a rifle along in order to protect the defendant while the
defendant attacked Frazier. When the men arrived at Frazier’s house, however, they saw a
crowd of people. The defendant changed his mind about attacking Frazier and planned to leave
because he was afraid he would be attacked by the crowd. Grimes then fired the rifle once. A
member of the crowd was killed. The defendant later admitted his involvement in the shooting
and was convicted of first degree murder and unlawful possession of a weapon by a felon
pursuant to an accountability theory.
¶ 43 On appeal, the court affirmed the defendant’s murder conviction, finding that he could not
escape liability for the murder merely because his original intention was only to attack Frazier.
Id. ¶¶ 31, 34. The court concluded that “[b]y attaching himself to a group bent on illegal acts,
defendant became accountable for all the crimes of his companions, including the shooting.”
Id. ¶ 34. The court also noted that to be accountable for the shooting under the common design
rule, the defendant need not have shared Grimes’s intent to fire the rifle; rather, “[b]y setting
out to commit a crime with Grimes, defendant rendered himself legally accountable for [the]
shooting.” Id. ¶¶ 44, 53.
¶ 44 The Phillips court also cited People v. Tarver, 381 Ill. 411 (1942), which involved two
groups of young men, the Tarver group and the Walker group. After a member of the Tarver
group got into a fight with a member of the Walker group, eight members of the Tarver group
agreed to confront the Walker group. Mack, a member of the Tarver group, agreed to go only if
he was assured there would be no shooting. However, Mack took a revolver along. During the
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subsequent confrontation, Tarver took Mack’s gun and fatally shot Lacey Walker. Mack was
later convicted of murder under an accountability theory. In affirming Mack’s conviction, our
supreme court found that there was abundant evidence that the Tarver group “banded together”
for the purpose of avenging the prior beating. Id. at 415. The court also noted that it was clear
there was “ill feeling” between the two groups and that Mack was a member “of a gang
assembled for the purpose of disturbing the peace and doing unlawful acts.” Id. at 415-16.
Therefore, “[a] shot fired by one of the defendants, under the circumstances shown, was a shot
fired by all and all of them must answer for the result.” Id. at 416.
¶ 45 Similarly here, it is clear that defendant and codefendants went to the train platform to
confront rival gang members. Although it may be true that they did not intend to kill anyone at
that time, ultimately, the result of the confrontation was codefendant Hardy and the victim
fighting on the train tracks, which culminated in the victim being electrocuted. See Terry, 99
Ill. 2d at 515-16 (our supreme court acknowledged that the common design rule “does impose
liability for murder even though a misdemeanor was originally intended”).
¶ 46 Contrary to defendant’s assertion, the State was not required to prove that defendant and
codefendants shared the same intent with regard to the charged offense (i.e., first degree
murder). Rather, the State needed only to prove that defendant had the intent to promote or
facilitate a crime. See Phillips, 2014 IL App (4th) 120695, ¶ 43. Under the common design
rule, because the defendant and his codefendants were engaged in a common criminal design
or agreement, any acts in the furtherance of that common design committed by one party are
considered to be the acts of all parties responsible for the consequences of those further acts.
720 ILCS 5/5-2 (c) (West 2010). By attaching himself to a group bent on an illegal action,
defendant became accountable for all the crimes of his companions, including those of
codefendant Hardy; defendant cannot “escape liability merely because his criminal intentions
did not rise to the level of murder.” Phillips, 2014 IL App (4th) 120695, ¶ 34.
¶ 47 As our supreme court has held, “there is no question that one can be held accountable for a
crime other than the one that was planned or intended, provided it was committed in
furtherance of the crime that was planned or intended.” (Emphasis in original.) People v.
Fernandez, 2014 IL 115527, ¶ 19.
¶ 48 In this case, this court cannot say that no rational trier of fact could have found defendant
guilty of first degree murder pursuant to the common design rule when the evidence at trial
established that defendant and codefendants were on the train platform (at defendant’s behest
according to his statement to the police) to confront the victim; that, Hardy, one of the
defendant’s companions, pushed the victim on the train tracks; and that Hardy’s act created a
strong probability of death or great bodily harm to the victim. Terry, 99 Ill. 2d at 515-16.
¶ 49 This court reverses a defendant’s conviction only where the evidence is so unreasonable or
unsatisfactory that a reasonable doubt of his guilt remains (Brown, 2013 IL 114196, ¶ 48); this
is not one of those cases.
¶ 50 Defendant cannot show that he was prejudiced by appellate counsel’s failure to raise this
meritless issue on direct appeal. See Lacy, 407 Ill. App. 3d at 457 (if the underlying issue has
no merit, defendant cannot show how he was prejudiced by appellate counsel’s failure to raise
it on direct appeal). Therefore defendant’s petition failed to make a “substantial showing of a
constitutional violation.” Domagala, 2013 IL 113688, ¶ 35.
¶ 51 Defendant finally contends that he has made a substantial showing of actual innocence
because codefendant Sapp’s affidavit establishes that the victim fell onto the tracks after being
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startled by Myles, and therefore, no one for whom defendant was accountable was responsible
for the victim’s death.
¶ 52 To “succeed on a claim of actual innocence, the defendant must present new, material,
noncumulative evidence that is so conclusive it would probably change the result on retrial.”
People v. Coleman, 2013 IL 113307, ¶ 96. “New means the evidence was discovered after trial
and could not have been discovered earlier through the exercise of due diligence.” Id. Material
means the evidence is “relevant and probative” of the defendant’s innocence, and
noncumulative means the evidence adds to what the factfinder heard at trial. Id. A reviewing
court “must be able to find that petitioner’s new evidence is so conclusive that it is more likely
than not that no reasonable juror would find him guilty beyond a reasonable doubt.” People v.
Sanders, 2016 IL 118123, ¶ 47. Well-pleaded factual allegations in the postconviction petition
and its supporting evidence are taken as true unless they are positively rebutted by the record.
Id. ¶ 48.
¶ 53 Defendant argues that codefendant Sapp’s affidavit is newly discovered evidence because
codefendant Sapp was simultaneously prosecuted for the victim’s death so defendant had no
way to obtain his testimony at trial, and that it is noncumulative in that it presents “a narrative
of events that was not heard before.” He further argues that taken as true Sapp’s affidavit
exonerates him because the act which caused the victim’s death was committed by Myles
rather than defendant or codefendants.
¶ 54 Initially, we note that codefendant Sapp’s account of events is largely consistent with the
sequence of events that was outlined at trial. Specifically, defendant and codefendants went to
the platform to confront members of a rival gang; defendant engaged in a conversation with
Lejman; defendant swung a cane at Lejman; and Lejman, Myles, and the victim ran away. It is
only in the manner in which the victim ended up on the tracks that is “new,” as codefendant
Sapp avers that the victim was startled by Myles, lost his balance, and fell onto the tracks. Even
if we accept defendant’s conclusion that the facts contained in codefendant’s Sapp’s affidavit
are new and noncumulative because he did not testify at defendant’s trial, we cannot agree that
codefendant Sapp’s affidavit, taken as true, is of such a conclusive character that it would
probably change the result at retrial. See People v. Washington, 171 Ill. 2d 475, 489 (1996) (the
most important element of a claim of actual innocence is whether the evidence is of such
conclusive character that it would probably change the result on retrial).
¶ 55 We find People v. Edwards, 2012 IL 111711, to be instructive. There, the defendant
claimed actual innocence, in part, based on newly discovered evidence in the form of an
affidavit from a codefendant, Eddie Coleman. The Edwards court found the codefendant’s
affidavit to be newly discovered evidence, due to the fact no amount of diligence could have
forced the codefendant to violate his fifth amendment right to avoid self-incrimination if he
chose not to do so. Id. ¶ 38. The Edwards court noted that the codefendant averred that the
defendant “ ‘had nothing to do with this shooting’ *** [and] was neither ‘a part [of nor] took
part in this crime.’ ” Id. ¶ 39. The Edwards court also noted that the codefendant “critically
does not assert that petitioner was not present when the shooting took place.” (Emphasis in
original.) Id. The court then determined that the codefendant’s affidavit did not raise the
probability that, in light of the new evidence, it was more likely than not that no reasonable
juror would have convicted the defendant. Id. ¶ 40. Finally, the Edwards court agreed with the
appellate court’s conclusion that the codefendant’s averment, that he was the principal
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offender, did not exonerate the defendant, who had been convicted of murder under an
accountability theory. Id. ¶ 39.
¶ 56 Here, we find that codefendant Sapp’s affidavit does not remove defendant from the train
platform or the events leading up to the victim’s death; rather, it offers an alternative
explanation for how the victim ended up on the tracks. The evidence at trial established that the
victim fell to the tracks as the result of a struggle with codefendant Hardy, whereas
codefendant Sapp avers that the victim lost his balance after being startled by Myles.
¶ 57 Although codefendant Sapp avers that the victim lost his balance and fell onto the tracks,
the fact remains that Moody testified at trial that he saw codefendant Hardy and the victim
fighting immediately prior to the victim being on the tracks, and defendant stated that
codefendant Hardy and the victim fell onto the tracks together. Accordingly, we cannot
conclude that the information contained in codefendant Sapp’s affidavit “is so conclusive that
it is more likely than not that no reasonable juror would find [defendant] guilty beyond a
reasonable doubt.” Sanders, 2016 IL 118123, ¶ 47. Rather, we find that at best the evidence
contained in the affidavit merely affects the issue of the sufficiency of the evidence and
therefore does not totally vindicate defendant. See People v. Adams, 2013 IL App (1st)
111081, ¶ 36 (evidence of a defendant’s actual innocence must support his total vindication or
exoneration, not merely present a reasonable doubt as to his guilt). Therefore, defendant has
failed to make a substantial showing of actual innocence. See Domagala, 2013 IL 113688,
¶ 35.
¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 59 Affirmed.
¶ 60 JUSTICE HYMAN, specially concurring.
¶ 61 I agree with my colleagues that the trial court properly dismissed Williams’s petition for
postconviction relief. I write separately to elaborate on the evidence needed to prove
accountability for first degree murder. The State must show not only that Williams possessed
the necessary mental state to be accountable for the actions of his codefendants, but also that at
least one person in the group possessed the necessary mental state for first degree murder.
Williams argues that the State did not do so and so the evidence was insufficient. To the
contrary, the State presented the necessary evidence and accordingly, I agree that his claim
fails.
¶ 62 Accountability, in itself, is not a crime. People v. Shaw, 186 Ill. 2d 301, 325 (1998). Rather,
it is a method of proving culpability for an underlying crime. People v. Hicks, 181 Ill. 2d 541,
547 (1998). The defendant is held accountable for the actions of the “principal” who commits
the underlying crime.
¶ 63 Here, the underlying crime is first degree murder, and the State needed to present sufficient
evidence of all its elements—including evidence of intent (knowing that the actions had a
strong probability of causing death or great bodily harm to the victim). See People v. McIntyre,
2011 IL App (2d) 100889, ¶ 12 (to find defendant guilty under accountability theory, State
must first establish prima facie case against principal). If the State does not establish the
elements of the underlying crime as committed by the principal, then a defendant cannot be
held accountable for aiding, abetting, or attempting to aid the principal in planning or
- 12 -
committing the offense. See People v. Chirchirillo, 393 Ill. App. 3d 916, 925 (2009)
(defendant cannot be accountable for unlawful possession of weapon by felon where State
failed to establish that principal was felon); see also People v. Gibson, 403 Ill. App. 3d 942,
950 (2010), abrogated on other grounds by People v. Bailey, 2014 IL 115459.
¶ 64 The State’s choice to charge Williams on an accountability theory does not excuse the
State from proving the elements of first degree murder. See People v. Jaimes, 2014 IL App
(2d) 121368, ¶ 38 (to obtain conviction based on accountability, State must prove that
principal actually committed offense). That element of intent for first degree murder is wholly
separate and apart from the mens rea encompassed in the accountability statute, which requires
that the accountable person have the intent to promote or facilitate the commission of the
underlying crime. 720 ILCS 5/5-2(c) (West 1998).
¶ 65 In practice, we rarely need to unwind these two levels of intent.
¶ 66 Accountability cases generally fall into two groups. The first group is the “leader-follower”
scenario, where the “leader” commits the murder but the “follower” is accountable. See, e.g.,
People v. Phillips, 2014 IL App (4th) 120695, ¶ 34 (where Phillips and friend Grimes had
common design to punch victim, Phillips was accountable for Grimes’s actions in shooting
another person when assault plan went awry). For example, defendants A and B agree to rob
the victim. Defendant A shoots the victim but defendant B does not physically harm the victim
at all. Defendant A has the requisite mens rea for first degree murder (knowing that shooting
the victim has a strong probability of causing death or great bodily harm). Defendant A is the
“principal.”
¶ 67 Defendant B does not have that mens rea for first degree murder, but under the
accountability statute, Defendant B can still be liable because he or she had a common design
with A to commit the robbery. There is no question of who shot the victim, and no question that
both the mens rea for first degree murder and the mens rea for accountability were present
within this group of defendants. See People v. Mischke, 278 Ill. App. 3d 252, 262 (1995)
(where codefendants involved in common design to commit aggravated assault or battery
against victims, codefendants “did not have to actively participate in [victim’s] murder in order
to be guilty under the accountability theory”).
¶ 68 The second common group of accountability cases is the “mystery shooter” scenario, when
the chaos of the situation makes it impossible to tell who struck the fatal blow against the
victim. See, e.g., People v. Cooper, 194 Ill. 2d 419, 422-23 (2000) (codefendant gang members
were both guilty of first degree murder by accountability, though it was unclear which
codefendant actually shot at victims during confrontation with rival gang). Defendants C and
D agree to rob the victim, but during the crime a gunshot rings out, striking and killing the
victim. In the aftermath, no physical evidence indicates whether it was C or D who pulled the
trigger, and neither will turn against the other. But we can infer that at least one of those
defendants had the mens rea for first degree murder (because the victim was shot), and we need
not identify the “principal” to hold both accountable for the murder (because both had a
common design). See id. at 435-36 (defendants may be found guilty under accountability
theory even if identity of principal is unknown, if each had common design).
¶ 69 Williams’s case, as he presents it, is more unusual. He alleges that no one in the group of
defendants (himself, Sapp, and Hardy) had the intent to kill Anthony King, and so he cannot be
accountable for first degree murder because no murder occurred. See People v. Griffin, 247 Ill.
App. 3d 1, 15 (1993) (if act committed by codefendants was not a crime, defendant cannot be
- 13 -
held accountable for it). But he omits the State’s evidence that Hardy grabbed King, fought
with him, and pushed him onto the train tracks. We can infer from this that Hardy, at least, had
the mens rea for first degree murder. And we can infer from Williams’s actions that he had a
common design with Hardy. So his scenario is more like that of the “leader-follower”
situation.
¶ 70 Williams is correct that the State needed to prove that the mens rea for first degree murder
was present within the group of codefendants. A case could arise where the State would not be
able to meet that burden (see, e.g., Chirchirillo, 393 Ill. App. 3d at 925-26), but this is not that
case.
- 14 -
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Engineered Machined Products, Inc. ) ASBCA No. 594 79
)
Under Contract No. W56HZV-06-C-0467 )
APPEARANCES FOR THE APPELLANT: Paul A. Debolt, Esq.
Christina K. Scopin, Esq.
Bart Stupak, Esq.
Venable LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Lawrence S. Rabyne, Esq.
Senior Trial Attorney
Defense Contract Management Agency
Arlington Heights, IL
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 3 August 2015
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the
Armed Services Board of Contract Appeals in ASBCA No. 59479, Appeal of
Engineered Machined Products, Inc., rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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} |
United States Court of Appeals,
Fifth Circuit.
No. 94-60619.
Robert W. BROOKS, Plaintiff-Appellee Cross-Appellant
v.
GEORGE COUNTY, MISSISSIPPI, et al., Defendants,
George County, Mississippi, et al., Defendant-Appellants Cross-Appellee,
Wilbur Ward and Earl Koskela, Defendants Cross-Appellees.
May 16, 1996.
Appeals from the United States District Court for the Southern District of Mississippi.
Before REYNALDO G. GARZA, JOLLY and DUHÉ, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Today we have entered an order denying the Appellants' Petition for Rehearing in the above
case. However, we withdraw our prior opinion on this matter, found at 77 F.3d 834, and substitute
the following opinion.
Background
Robert W. Brooks successfully brought claims under the Thirteenth and Fourteenth
Amendments of the United States Constitution for his continued incarceration in a county jail eight
months after the charges against him had been dropped. Eugene Howell, Sheriff of George County,
Mississippi ("Sheriff Howell" or "the Sheriff"), arrested Robert W. Brooks ("Brooks") in Virginia,
where Brooks, who was out on bond, had fled after indictments were returned against him for grand
larceny and felony burglary in Mississippi. Brooks was incarcerated in the George County jail on
January 21, 1991, and was arraigned on the indictments on January 28, 1991.
On or about the same day, Gary Evans, assistant district attorney for the Nineteenth Judicial
Circuit, requested that the charges against Brooks be dismissed pursuant to a nolle prosequi order.
An order granting the district attorney's motion was signed on February 4, 1991, in Jackson County,
Mississippi, by Judge Clinton E. Lockard. On February 5, 1992, the district attorney's office filed a
copy of the order at the George County Circuit Clerk's office. The order was filed the same date by
an employee of the circuit clerk of George County. Evans apparently informed Brooks's attorney,
William T. Bailey, of the state's intention to seek dismissal prior to making the motion. However,
neither the Sheriff's office nor Brooks was notified of the dismissal. Brooks was not released until
he discovered and showed the order to Sheriff Howell on October 1, 1991.
In March 1991, during the time period in which he was confined in the George County jail,
Brooks requested and was granted trusty status. Brooks specifically asked that he be made trusty.
As a trusty, Brooks was not locked down in his cell, but was, instead, allowed the freedom to roam
in and out of his cell, Sheriff Howell's office, the jail and the surrounding grounds area.
While incarcerated, Brooks performed, at his own request, various services for Sheriff
Howell, George County and others, including several charitable and benevolent organizations.
Brooks performed these services on public property as well as private property.1 Brooks performed
these services for two reasons: (1) he was able to secure his release from jail during the day and (2)
Brooks earned extra money by working on the outside. Brooks was not compensated for those
services he performed on public property, but on several occasions, was paid money or received
goods in exchange for the services he rendered on private property.
Brooks brought an action in the Southern District of Mississippi, Southern Division, on July
1, 1992, against Sheriff Howell and a number of deputy sheriffs of George County; members of the
board of supervisors of George County; Earl Koskela, district attorney for the Nineteenth Judicial
District; Public Defender William T. Bailey; Wilbur G. Ward, circuit clerk of George County; and
other public officials in their official and individual capacities, as well as George County, pursuant to
42 U.S.C. § 1983.2 Brooks's claims were premised upon alleged violations of the First, Fourth, Fifth,
Sixth, Eighth, Thirteenth, and Fourteenth Amendments as a result of his incarceration after the nolle
prosequi order had been entered in February, 1991. Brooks claimed that he was unlawfully and
1
Examples of work done on private property include construction of a dog pen for Deputy
Sheriff Miller and installation of a fence for Sheriff Howell's sideline fencing business.
2
Brooks also raised a number of state law claims that were dismissed without prejudice on
summary judgment.
falsely incarcerated during this period of time. He also alleged that, while incarcerated, he was forced
or coerced into working on public and private property, amounting to involuntary servitude under
the Thirteenth Amendment. Because he was not always paid for his services, he also claimed a
violation of his due process rights under the Fourteenth Amendment.
On motions for summary judgment, the district court dismissed Brooks's claims of unlawful
incarceration arising from the entry of the nolle prosequi order as to all parties. The district court also
held that neither the district attorney nor the clerk were subject to any of Brooks's claims for
damages. The remaining parties moved in limine to exclude certain evidence from the trial, notably
evidence of Brooks's status after the entry of the nolle prosequi order. The district court denied the
motion. After a five-day trial, the jury returned a verdict for Brooks against Sheriff Howell, James
Cooper and George Miller, deputy sheriffs of George County, and George County (collectively, the
"Appellants"), awarding compensatory damages in the amount of $70,000, $50,000 of which
represented damages co ncerning Brooks's claim of involuntary servitude under the Thirteenth
Amendment and $20,000 representing lost wages in connection with Brooks's due process claims
under the Fourteenth Amendment. In a bifurcated proceeding, the jury awarded punitive damages
against Sheriff Howell and Deputy Miller in their individual capacities in the amount of $5,000 and
$500, respectively.
Appellants filed a timely notice of appeal on September 6, 1994. Brooks filed a cross-appeal
with respect to the district court's granting of partial summary judgment on his claims of unlawful
incarceration and dismissal of all claims against the district attorney and the clerk. We affirm in part
and reverse in part the judgment for Brooks in the manner hereinafter described.
Discussion
Brooks prevailed on his claims under the Thirteenth and Fourteenth Amendments with regard
to his work as a trusty while in the George County jail. Appellants argue that these claims should not
have gone before the jury. We will discuss in turn the merits of each of these constitutional claims
as well as the unlawful incarceration claims Brooks lost on summary judgment and dismissal from the
suit of the district attorney and the clerk.
A. Claims Based on Work as a Trusty
1. Thirteenth Amendment—Involuntary Servitude Claim
Brooks alleged that his choice between staying in jail or working when he was not supposed
to be in jail amounted to involuntary servitude. We begin by asking whether the record contained
substantial evidence to create a jury question on involuntary servitude. Boeing v. Shipman, 411 F.2d
365, 375 (5th Cir.1969).
The Thirteenth Amendment to the Constitution provides that "[n]either slavery nor
involuntary servitude, except as punishment for a crime whereof the party shall have been duly
convicted, shall exist within the United States or any place subject to their jurisdiction." U.S. Const.
amend. XIII, § 1. The Fifth Circuit defines involuntary servitude as "an action by the master causing
the servant to have, or to believe he has, no way to avoid continued service or confinement." Watson
v. Graves, 909 F.2d 1549, 1552 (5th Cir.1990). "When the employee has a choice, even though it
is a painful one, there is no involuntary servitude ... A showing of compulsion is thus a prerequisite
to proof of involuntary servitude." Id.
In Watson, this Circuit held that two inmates who requested to work outside of jail made
such a choice voluntarily and presented no Thirteenth Amendment claim. Id. at 1552-1553. The
prison context made this choice no less voluntary. Examining the record, we find Brooks's situation
to be similar to that of the inmates in Watson.
The county held Brooks as a pretrial detainee. In that status, Brooks was entitled only to be
confined until trial; the Appellants were under no obligation to allow Brooks the freedom he enjoyed.
Brooks made the request for trusty status. He desired to leave the jail and chose to work as the price
for that right. Since Brooks was not being punished by being detained until trial, the choice between
this confinement and work as a trusty cannot be considered coercive because the benefits he received
for working were not benefits for which he was otherwise entitled. Admittedly, the choice described
might have been a painful one, but it was nonetheless a choice.
The district court granted Appellants partial summary judgment on Brooks's claims relating
to unlawful incarceration, absolving Appellants of legal liability. To find the Appellants liable for
involuntary servitude based on a nolle prosequi order which provides no basis for liability under
unlawful incarceration would defy common sense. Like the inmates in Watson, Brooks had a choice,
albeit a painful one. He was, however, not subject to involuntary servitude and thus presented no
claim under the Thirteenth Amendment.3
2. Fourteenth Amendment—Procedural Due Process Claim
Brooks claimed t hat Appellants' failure to compensate him for any of his work on public
property, and their failure to compensate him for part of his work on private property, constituted
a deprivation of property without due process of law in violation of the Fourteenth Amendment.4 The
jury found Sheriff Howell and Deputy Miller liable for the deprivations in their individual capacities;
because the jury found the deprivations to be part of a policy or custom, Sheriff Howell and Deputy
Miller were also liable in their official capacities.5
Appellants raise a number of defenses. They contend that Brooks has not al leged the
deprivation of a cognizable property right, that qualified immunity shields Sheriff Howell and Deputy
Miller from liability in their individual capacities and that no custom was present to give rise to official
liability under Monell. Appellants also maintain that post-deprivation remedies are adequate process
for Brooks because whatever deprivation that allegedly occurred was merely a random and
unauthorized act under the Parratt/Hudson doctrine. Consideration of these defenses leads us to
affirm judgment on the Fourteenth Amendment claim only as to Sheriff Howell in both his individual
and official capacities.
3
Because we hold that Brooks presented no claim for involuntary servitude, we do not address
whether Appellants were qualifiedly immune from liability in their individual capacities or whether
Appellants were liable in their official capacities under the Thirteenth Amendment. We also do
not address whether admission of evidence of Brooks's unlawful incarceration was proper.
4
Appellants argue that Brooks never properly made a procedural due process claim for
deprivation of wages under the Fourteenth Amendment. However, Brooks's amended complaint
requested relief under the Fourteenth Amendment and later stated that Sheriff Howell and his
deputies "caused the Plaintiff to suffer ... damages for economic losses in the form of loss of
wages ... for which the Plaintiff is entitled to recover." Not surprisingly, the lower court
recognized this contention as a due process claim for deprivation of wages. Such recognition was
proper.
5
The District Court amended its final judgment to include George County as result of the
finding of official capacity liability.
a. Brooks's Property Right
Since the United States Constitution does not create property rights, Brooks must be able
to rely on Mississippi law to prove that he has a cognizable property right in wages for work
performed as a pretrial detainee. Garcia v. Reeves County, Texas, 32 F.3d 200, 203 (5th Cir.1994).
Where there is a "legitimate expectation of entitlement," there is a property right. Board of Regents
v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
Brooks contended below that Miss.Code Ann. §§ 47-1-13 and 47-1-21 (1972) created a
property right in wages for work on public and private property as a pretrial detainee. Miss.Code
Ann. § 47-1-13 states in relevant part that
Any person being held in the county jail in default of bail to await trial ... may on application
to the sheriff of the county, be allowed to work on ... county public works as other convicts
are worked and at the same wage. The board of supervisors shall settle with prisoners so
working at their regular meetings monthly.
(emphasis added). Miss.Code Ann. § 47-1-21 requires that
[t]he sheriff of each county shall keep a well bound alphabetical jail docket. In it he shall
promptly enter under the proper initial the name, age, color and sex of each convict, the date
of his or her commitment, each day worked on the county farm....
The sheriff shall submit his docket to the board of supervisors at each of their regular
meetings, and the same shall be examined carefully by the president of the board, and by any
other members who desire to examine the same, in the presence of the board while in session.
The statutes cited by Brooks do not create a legitimate expectation of entitlement to
compensation for work on private property by pretrial detainees. These statutes do not provide for
payments for work on private property. In fact, under Mississippi law, prisoners may only do work
of an "exclusively public character." See Miss.Code Ann. §§ 47-1-19, 47-1-3. We therefore find that
Brooks's failure to receive compensation for his work on private property over and above the
compensation he actually received does not constitute a deprivation of a cognizable property right.
The two provisions quoted above, in our estimation, do create a legitimate expectation of
entitlement to compensation for work on public property by pretrial detainees. These two statutes
provide that a pretrial detainee who is permitted to work on public property must be paid the same
wages as other prisoners. They place on the sheriff the duty to keep a record of days worked and to
submit that information to the county board of supervisors so that the board can "settle" with the
pretrial detainees at its regular meetings. Our conclusion that these statutes create a cognizable
property right in wages is buttressed by the fact that the state has provided a mechanism whereby
claims against the county can be presented directly to the board of supervisors or in state court.6
Because Mississippi law creates a cognizable property right in wages for a pretrial detainee's work
on public property, Brooks cannot be deprived of that right without due process of law. See Piatt
v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc) ("Because Arizona has established,
by statute, a right of inmates to compensation for work performed for private parties, it cannot deny
[the inmate] that right after he has earned the wages, without affording him due process of the law.").
Sheriff Howell did not keep a record of the days Brooks worked on public property and
failed to present such a record to the board of supervisors at its meetings, precluding the board of
supervisors from paying wages to Brooks. Brooks was thus deprived of wages for the work he
performed on public property as a direct consequence of Sheriff Howell's failure to act in the face of
a clear duty to act under state law. The statutes cited by Brooks, however, do not impose on Deputy
Miller a similar duty. Because the record provides no evidence that Deputy Miller's actions or failure
to act deprived Brooks of wages for the work he performed on public property, we reverse the
judgment holding Deputy Miller liable in his individual or official capacities on this claim.7
b. Sheriff Howell's Qualified Immunity
We now consider whether Sheriff Howell is qualifiedly immune from liability in his individual
capacity. Qualified immunity is only available when an official acts "within the scope of [his or her]
discretionary authority." Cronen v. Texas Dept. of Human Services, 977 F.2d 934, 939 (5th
Cir.1992). Mississippi law, as quoted above, imposes on Sheriff Howell a non-discretionary duty to
6
Under Miss.Code Ann. §§ 19-13-27 and 19-13-29, a claimant against a county can present
such claim for unpaid work to the county board of supervisors. "If the board shall reject any such
claim in whole or in part, or refuse when requested at a proper time, to pass thereon, the claimant
may appeal to the Circuit Court, or may bring suit against the county on any such claim."
Miss.Code.Ann. § 19-13-31.
7
Appellants would have us release Deputy Sheriff James Cooper from liability on the
Fourteenth Amendment claim. As is visible from the Special Interrogatories, the jury never found
Cooper liable on the Fourteenth Amendment claim. We note that Cooper would be free of
liability anyway for the same reasons that absolve Deputy Miller.
keep records of work performed by pretrial detainees and to transmit those records to the board of
supervisors so that pretrial detainees can be paid. Sheriff Howell thus is not entitled to qualified
immunity from individual liability on this due process claim.
c. Official Capacity Liability Under Monell
Brooks's suit against Sheriff Howell in his official capacity is treated as a claim against
George County. Hafer v. Melo, 502 U.S. 21, 23-27, 112 S.Ct. 358, 361-362, 116 L.Ed.2d 301
(1992). To establish liability on the part of George County, Brooks must demonstrate a policy or
custom which caused the alleged constitutional deprivation. Monell v. New York City Dept. of Soc.
Serv., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Appellants contend no
such policy is present. However, the jury found that the Fourteenth Amendment violations were part
of a custom, policy or practice of the county. This finding has sufficient support in law and fact.
We note that even "a single decision may create municipal liability if that decision were made
by a final policymaker responsible for that activity." Brown v. Bryan County, Oklahoma, 67 F.3d
1174, 1183 (5th Cir.1995) (emphasis in original). Sheriffs in Mississippi are final policymakers with
respect to all law enforcement decisions made within their counties. Huddleston v. Shirley, 787
F.Supp. 109, 112 (N.D.Miss.1992); Miss.Code Ann. § 19-25-1, et seq. Sheriff Howell admitted on
the record that the department kept none of the required records detailing the locations and number
of days prisoners worked. The jury could infer from this statement that the county had a policy of
not keeping such records. Therefore, George County is liable for the ongoing actions of its policy
maker, Sheriff Howell, in depriving Brooks of his property without due process. Turner v. Upton
County, 915 F.2d 133, 137 (5th Cir.1990), cert. denied 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d
850 (1991).
d. Application of the Parratt/Hudson Doctrine
Appellants urge in their defense that no due process violation has been shown because of the
Parratt/Hudson doctrine. Under their version of this doctrine, the mere presence of post-deprivation
remedies prevents a due process claim.8 Such interpretation is blatantly misleading and is not the law.
8
See footnote 6 supra (submission of claims against counties).
The Parratt/Hudson doctrine dictates that a state actor's random and unauthorized deprivation of
a plaintiff's property does not result in a violation of procedural due process rights if the state
provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991)
(en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and
Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).
The Parratt/Hudson doctrine is inapplicable to the facts as shown. The doctrine is meant to
protect the state from liability for failing to provide predeprivation process in situations where it
cannot anticipate the need for such process (when actions are random and unauthorized). Zinermon
v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 984-87, 108 L.Ed.2d 100 (1990). Where a municipal
officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine is inapposite:
actions in accordance with an "official policy" under Monell can hardly be labeled "random and
unauthorized." Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 380 (7th Cir.1988). As this
Court noted, where employees are acting in accord with customary procedures, the "random and
unauthorized" element required for the application of the Parratt/Hudson doctrine is simply not met.
Alexander v. Ieyoub, 62 F.3d 709, 713 (5th Cir.1995). Despite Appellants' urging, we see no
application of the Parratt/Hudson doctrine to the facts as presented.
Accordingly, we affirm the judgment holding Sheriff Howell liable in his individual and official
capacities on this Fourteenth Amendment claim relating to Brooks's work on public property. We
do, however, remand to the district court for a retrial to determine the actual damages and punitive
damages, if any, arising from Sheriff Howell's liability on this claim.9
9
Appellants have raised an important evidentiary concern which we must address. The district
court denied Appellants' motion in limine to exclude evidence of the mistaken nature of Brooks's
confinement. The record is replete with Brooks's references to the order of dismissal and
subsequent mistaken confinement for several months. The mistaken nature of the confinement
was only relevant to Brooks's unlawful incarceration claim for which the court granted summary
judgment for the Appellants. The mistaken nature of the confinement is of little or no relevance
to Brooks's surviving Fourteenth Amendment claim for deprivation of property and is likely
prejudicial to the defendants. The lower court should thus allow no evidence (including the nolle
prosequi order itself) of the mistaken nature of the confinement to go before the jury in their
consideration of damages on the Fourteenth Amendment claim. With regard to Brooks's status,
the jury is entitled only to know that Brooks was in the county jail as a pretrial detainee and that
he was released when the charges against him were dismissed.
B. Fourth Amendment Claims—Unlawful Seizure
Brooks cross-appeals the summary judgments against him on his claims based on unlawful
confinement under the Fourth Amendment.10 All defendants were sued in both official and individual
capacities under 42 U.S.C. § 1983. We review de novo the district court's decision to grant summary
judgment in favor of Appellants. For the reasons discussed below, we affirm the grant of summary
judgment against Brooks.
Brooks argues that his continued incarceration after the nolle prosequi order was a violation
of the Fourth Amendment. The court granted summary judgment in favor of all Cross-Appellees.11
As the lower court noted, Fourth Amendment claims are appropriate when the complaint contests
the method or basis of the arrest and seizure of a person. Yet Brooks did not challenge his arrest,
which was made pursuant to a valid capias, as a violation of the Fourth Amendment, but challenged
only his continued incarceration.
We reference our decision in Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir.), cert.
denied 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993), by analogy, for the proposition that
once the incidents of a valid arrest have long since been completed and the pretrial detainee remains
in detention, the Fourth Amendment no longer applies when the challenge is so lely to continued
incarceration. In Valencia, this Circuit held that neither the Unreasonable Search and Seizure Clause
of the Fourth Amendment nor the Cruel and Unusual Punishment Clause of the Eighth Amendment
is applicable in determining whether a detention official's use of deliberate force was excessive. Id.
The Due Process Clause of the Fifth and Fourteenth Amendments are the appropriate constitutional
10
Brooks appeals the summary judgment for all Cross-Appellees on the Fourth Amendment
claims. Brooks does not appeal the summary judgment against him on his Eighth Amendment
claim or on any of his claims against Public Defender William T. Bailey. Additionally, we note
that Brooks nowhere in his brief questions the partial grant of summary judgment for the George
County Board of Supervisors on immunity grounds, or for the Sheriff or his deputies on the
Fourteenth Amendment claim with regard to deprivation of liberty. Accordingly, we will not
address those portions of the summary judgment, any argument as to their propriety having been
waived by Brooks.
11
Cross-Appellees on the Fourth Amendment claim are George County, Sheriff Howell, his
three deputies, the George County Board of Supervisors, District Attorney Earl Koskela and
Circuit Clerk Wilbur G. Ward.
provisions for this determination. Id.
As the Court stated,
We do not believe that the Fourth Amendment provides an appropriate constitutional basis
for protecting against deliberate official uses of force occurring, as in this case, after the
incidents of arrest are completed, after the plaintiff has been released from the arresting
officer's custody and after the plaintiff has been in detention awaiting trial for a significant
period of time ... As the Fourth Amendment pro tects against unreasonable "seizures," it
seems primarily directed to the initial act of restraining an individual's liberty, such as an
investigatory stop or arrest.
Id. at 1443-1444.
The logic of Valencia applies to the instant case. The Fourth Amendment is inapplicable to
a pretrial detainee who was properly arrested and is awaiting trial. That detainee has recourse to due
process protections, not protection against unreasonable seizures after a lawful seizure has occurred.
Since Brooks has shown no defect in his actual arrest, he has made no claim under the Fourth
Amendment.12 We affirm the summary judgment for the Cross-Appellees on Brooks's Fourth
Amendment claims.13
C. Dismissal of Claims Against the D.A. and the Clerk
Brooks also challenges the lower court's holding that District Attorney Koskela and Circuit
Clerk Ward were not subject to suit on any of the constitutional claims discussed above.14 As with
the Fourth Amendment claim above, we hold that the district court properly granted summary
12
Brooks's brief does not address his arrest but we do so here to show the lack of basis for
Brooks's Fourth Amendment claim. Brooks was arrested in Virginia pursuant to a notice placed
with the National Criminal Information Center (NCIC) after an affidavit was presented against
him for grand larceny. Brooks waived extradition and was returned to Mississippi by Sheriff
Howell on January 21, 1991. He was served with the capias for indictments issued in October,
1990 for cause numbers 3657 and 3658. He appeared before the judge for his initial appearance
on these charges on January 28, 1991 and pled not guilty. NCIC printouts provide a reliable basis
for probable cause to arrest. U.S. v. McDonald, 606 F.2d 552, 552-54 (5th Cir.1979).
Therefore, there is no support for Brooks's claim that his arrest violated the Fourth Amendment
guarantees against unreasonable searches and seizures.
13
As we agree with the District Court that Brooks presented no Fourth Amendment claim, we
do not reach the arguments on immunity and level of conduct advanced at length by Cross-
Appellees on this claim.
14
This immunity analysis applies to Koskela's and Ward's potential liability under any of
Brooks's claims. Because we have already shown above that Brooks's claims under the Fourth
and Thirteenth Amendments were without merit, however, this immunity analysis is germane only
to Brooks's claim under the Fourteenth Amendment for deprivation of liberty.
judgment.
1. The District Attorney
Brooks's claims against Earl Koskela, the George County District Attorney, stem from
Koskela's failure to provide a copy of the nolle prosequi motion to opposing counsel. Mississippi
Uniform Circuit Court Rule 2.01 (1994) required that "[a] copy of all subsequent pleadings and
motions, including motions for a new trial, shall be delivered in person or by mail to opposing counsel
..."15 Brooks co ntends that the district attorney's office, through Gary S. Evans, assistant district
attorney, violated this rule, leading to his unconstitutional imprisonment for eight months. At the
summary judgment phase, the district court dismissed all claims against Koskela in his individual
capacity on the basis of prosecutorial immunity and in his official capacity under the Eleventh
Amendment on the basis of his status as a state official in Mississippi. We find summary judgment
appropriate in this context.
This Court is uncertain whether Brooks has even alleged a violation of Rule 2.01. Mr. Evans
merely prepared an order of dismissal for the state trial court after acknowledging in open court that
the case would not proceed. The district attorney's office had no duty under Rule 2.01 or, as far as
we can discern, under any Mississippi law, to provide copies of the court's orders to opposing
counsel.
Even if one assumed that the procedure resulting in a court order amounted to a "motion,"
Mr. Evans provided notice on or about January 28 or 29, 1991, of the government's intention to seek
dismissal to Mr. Brooks's attorney, William T. Bailey, prior to the open court procedure.16 Thus we
15
This rule has been amended and recodified as Uniform Circuit and County Court Rule 2.06,
Service of Copies and Certificate of Service.
16
Mr. Bailey claimed that he no longer represented Brooks at the time of the nolle prosequi
order. However, we agree with the district court that Bailey was still Brooks's attorney for the
purposes of establishing notice of the order. Bailey, assigned to represent indigent defendants
such as Brooks, never received court permission to withdraw from representation of Brooks as
required under Rule 1.05 of the Uniform Criminal Rules of Circuit Court Practice (1994). Bailey
signed a document acknowledging receipt of discovery from the State on behalf of Brooks.
Brooks himself advised the court at the arraignment on January 28, 1991 that he had an attorney.
At roughly the same time, the government gave its notice to Bailey that the case would not
proceed. It is not surprising that all involved except for Bailey himself believed that Bailey was
Brooks's lawyer. Thus, the district court properly concluded that "Bailey, in his capacity as public
are not convinced that if the nolle prosequi procedure was subject to Rule 2.01's requirements that
the district attorney's office even violated the rule.
Assuming arguendo that the district attorney violated Rule 2.01, we agree with the lower
court that Koskela was nonetheless immune from such suit in his official and individual capacities.
The district attorney is considered a state official in Mississippi, as the office is primarily state-funded,
and the district attorney has the power to represent the state in all judicial proceedings. Chrissy F.
by Medley v. Mississippi Dep't of Public Welfare, 925 F.2d 844, 849 (5th Cir.1991). As a state
actor, the district attorney is shielded in his official capacity by Eleventh Amendment immunity. Id.
No suit against Koskela in his official capacity can be maintained.
Koskela is also immune from suit in his individual capacity. Immunity is sustained for acts
taken in furtherance of the prosecution of the case; acts which are investigative or administrative do
not carry absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47
L.Ed.2d 128 (1976). Immunity is gauged by the functional activities the prosecutor engaged in and
not the status of the defendant. Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119, 75
L.Ed.2d 96 (1983). Actions which are related to the judicial process fulfill the prosecutor's
"advo catory" function and are considered absolutely immune from suit. See Marrero v. City of
Hialeah, 625 F.2d 499, 505 (5th Cir.1980), cert. denied 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d
337 (1981).
In our estimation, the prosecutor's acts through his assistant of requesting that the court enter
an order of nolle prosequi of Brooks's criminal charges, of having an order prepared for the court that
memorialized the same, and the forwarding of such order to the clerk for filing are all prosecutorial
activities "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S.
at 430, 96 S.Ct. at 995 (emphasis added). The mere fact that the district attorney's office prepared
the court's order for it and forwarded the order does not remove these acts from being intimately
associated with the judicial process. Accordingly, we affirm the District Court's holding that Mr.
Koskela is immune from suit under 42 U.S.C. § 1983 in both official and individual capacities on all
defender, was acting as Brooks's attorney for the duration of the case."
claims brought by Mr. Brooks.17
2. The Circuit Clerk of George County
Wilbur G. Ward was the Circuit Clerk for George County at the time of the incidents which
are the subject of this lawsuit. The reco rd indicates that the order of nolle prosequi was filed by
Angela Cooper, over the file stamp which indicated that Wilbur Ward was the Circuit Clerk. Brooks
alleges that Ward created a policy which had the effect of depriving him of the right to be free from
unnecessary restraint by failing to send court orders o f dismissal of charges to the defendant in a
criminal prosecution, or to his counsel, and failing to adopt a policy for the George County Clerk's
office of sending orders. The district court granted summary judgment in favor of Wilbur G. Ward,
circuit clerk of George County, Mississippi ("the clerk"), based on the fact that the judge, not the
clerk, was the final policymaker of the circuit county system in George County with regard to the acts
alleged by Brooks. We agree.
Under Mississippi law, the judge is the ultimate authority for the supervision of the court in
his jurisdiction. As the Mississippi Supreme Court stated, "Although the clerk performs the physical
act of record keeping, the judge is ultimately responsible for the administration of his court." In re
Collins, 524 So.2d 553, 555 (Miss.1987). Only those officials who have "final policymaking
authority" may by their actions subject the government to liability under 42 U.S.C. § 1983. Bryan
Cty., 67 F.3d at 1182. Accordingly, Ward cannot be liable for failing to establish a policy of sending
orders to parties in a criminal proceeding because he was not the policymaker for the George County
Circuit Court System.18
We also note that nowhere has Bro oks shown that circuit clerks have an affirmative duty
17
Holding that the district attorney is protected by absolute immunity in both official and
individual capacities, we do not reach the issue of Cross-Appellees' qualified immunity.
18
Brooks makes much of the fact that Ward held the position of Circuit Court Administrator of
George County. The Court Administrator performs nonjudicial tasks of the court, serves as a
liaison to the general public, and provides administrative support for all judges of the district.
Miss.Code Ann. § 9-17-3 (1972). We find Brooks's reference to this fact deceptive. Appellants
astutely advert to the fact Ward did not become Administrator until July, 1992, almost ten months
after Brooks was released from jail. Ward's appointment to this position after Brooks's release is
hardly relevant to the question of whether Ward was the court's policy maker at the time of
Brooks's incarceration.
under Mississippi law to provide the sheriffs of the state, or counsel for criminal defendants, or
criminal defendants pro se, with copies of orders or pleadings filed in criminal cases. Nor has Brooks
shown an affirmative duty to notify sheriffs, counsel or defendants of the filing and entry of orders
and pleadings in criminal cases. The circuit clerks merely have a duty to file and docket all papers
filed in each court case.19
Since "no dut y to act existed, the failure to act did not violate the constitution." Salas v.
Carpenter, 980 F.2d 299, 307 (5th Cir.1992).20 While it is unfortunate that Brooks languished in the
county jail, we can find no duty violated by the clerk to impose liability for the loss. The district court
properly granted summary judgment on this issue.
Conclusion
Libertas inestimabilis res est. The spirit of this adage is that one can place no price on
freedom. Brooks fell through the cracks of a modern bureaucratic labyrinth, resulting in eight months
of mistaken confinement. Nevertheless, we are unable to provide a remedy under 42 U.S.C. § 1983
to Brooks for this mistaken confinement. Brooks is ent itled to a remedy, however, for the
deprivation of his property—the wages earned as a pretrial detainee on public property—without due
process of law. Nothing will shield Sheriff Howell or Geo rge County from liability for Sheriff
Howell's failure to keep, and submit to the board of supervisors for payment, records of Brooks's
work on public property as a pretrial detainee.
Holding that Brooks's involuntary servitude claim is without merit under the Thirteenth
Amendment, we VACATE the judgments of the court below and RENDER judgment for Appellants.
We also VACATE the judgment of the court below and RENDER judgment for Deputy Miller in
both his individual and official capacities on Brooks's Fourteenth Amendment deprivation of property
claim. We AFFIRM the judgment holding Sheriff Howell liable in his individual and official capacities
19
E.g., Miss.Code Ann. § 9-7-171 (1972) (duty of circuit clerk to keep a "general docket");
Miss.Code Ann. § 9-7-175 (1972) (duty to keep a "criminal docket"); Miss.Code Ann. § 9-7-177
(1972) (duty to keep an "appearance docket").
20
Because we hold that the circuit clerk was not a policymaker and did not violate any duty,
we do not reach the issue of the clerk's qualified immunity.
under the Fourteenth Amendment for deprivation of property solely as it relates to Brooks's claim for
wages for work on public property. However, we REMAND to the district court for a retrial to
determine the actual damages, and punitive damages, if any, arising from Sheriff Howell's liability for
depriving Brooks of wages for his work on public property. We also AFFIRM the district court's
summary judgment for all Cross-Appellees on Brooks's constitutional claims regarding unlawful
incarceration and for District Attorney Koskela and Circuit Clerk Ward on the dismissal of all claims
against them.
| {
"pile_set_name": "FreeLaw"
} |
(2008)
UNITED STATES of America, Plaintiff,
v.
James CALLANAN, Defendant.
No. CR 08-12-MWB.
United States District Court, N.D. Iowa, Cedar Rapids Division.
October 24, 2008.
MEMORANDUM OPINION AND ORDER REGARDING SENTENCING AND SANCTIONS FOR THE PROSECUTION'S BREACH OF THE DEFENDANT'S PLEA AGREEMENT
MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ............................................................1128
A. Background ...........................................................1128
1. Callanan's charge, plea agreement, and guilty plea ................1128
2. The PSIR and sentencing arguments .................................1128
3. The prosecutorial misconduct issue ................................1129
B. The Sentencing Hearing ...............................................1131
II. LEGAL ANALYSIS ..........................................................1132
A. Analytical Process For Breach Of A Plea Agreement ....................1132
B. Step One: Breach .....................................................1133
C. Step Two: Remedy .....................................................1135
1. Available remedies ................................................1135
2. Is any remedy required? ...........................................1136
3. Sufficiency of a typical remedy ...................................1138
4. Rejection of the remedy applied in Dicus ..........................1138
5. Imposition of fees and costs ......................................1139
III. CONCLUSION ..............................................................1141
For the third time in less than a year, and for the second time in just two months, I have been reassigned a case for sentencing in which Chief Judge Reade has found that the United States Attorney's Office for the Northern District of Iowa, the representative of the executive branch of the government, has breached the defendant's plea agreement. The recidivism of this United States Attorney's Office is particularly troubling in light of the flimsy, Ginsu-sliced-tomato thin excuses advanced by the prosecutors in these cases as to why they had not breached the plea agreements.[1] As Justice Sutherland explained so eloquently some seventy years ago,
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Two and a half centuries ago, Montesquieu stated the principle more succinctly and more emphatically: "There is no more cruel tyranny than that which is exercised under cover of the law, and with the colors of justice." Montesquieu, DE L'ESPIRIT DES LOIS (1748), quoted in United States v. Jannotti, 673 F.2d 578, 614-15 (3d Cir. 1982) (Aldisert, C.J., dissenting). Although I found that the prosecution's breach of the plea agreement in the last such case was egregious and warranted a reduction in the defendant's sentence, see United States v. Dicus, 579 F.Supp.2d 1142, 2008 WL 4402214 (N.D.Iowa 2008), I explained at the current defendant's sentencing hearing on October 21, 2008, that the prosecution's breach in this case presents a significantly different circumstance warranting a significantly different response. I now enter this memorandum opinion and order to memorialize more fully my rationale for my response to the prosecution's breach of the plea agreement in this case.
I. INTRODUCTION
A. Background
1. Callanan's charge, plea agreement, and guilty plea
In a single-count Indictment (docket no. 1), handed down January 30, 2008, defendant James Callanan was charged with knowingly and intentionally distributing a mixture or substance containing a detectible amount of heroin on or about December 16, 2003, resulting in serious bodily injury to C.W. from use of the heroin, all in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). In a plea agreement (docket no. 38-2) executed by the parties on March 27, 2008, Callanan agreed to plead guilty to the lesser-included offense of distribution of heroin on the date charged. The plea agreement provided, inter alia, that "pursuant to USSG § 2D1.1(a)(2), the appropriate base offense level is 12 because defendant distributed less than 5 grams of heroin to another person." Plea Agreement, ¶ 20.A (emphasis in the original). Callanan did, in fact, plead guilty to the lesser-included offense before a magistrate judge of this district on March 31, 2008, and, on April 15, 2008, Chief Judge Reade, to whom this case was then assigned, accepted the magistrate judge's recommendation that the court accept Callanan's guilty plea. See Order (docket no. 40). Callanan's sentencing was set for September 25, 2008. See Order (docket no. 41).
2. The PSIR and sentencing arguments
Prior to Callanan's sentencing, the probation officer completed a presentence investigation report (PSIR) recommending that Callanan be held responsible for the equivalent of 751.27 grams of heroin and, consequently, that his base offense level would be 30. PSIR, ¶ 44. On August 29, 2008, Chief Judge Reade received a letter (docket no. 43) dated August 26, 2008, from defendant Callanan himself protesting the difference between the drug quantity and base offense calculations in the PSIR and the drug quantity and base offense stipulation in his plea agreement and requesting a new attorney, because of Callanan's unhappiness with the way that his attorney was handling the matter. On September 2, 2008, the prosecution filed a Sentencing Memorandum in which the prosecution argued, consistent with the probation officer's recommendation in the PSIR, that Callanan should be held responsible for the equivalent of 751.27 grams of heroin and, consequently, that his base offense level should be 30. Prosecution's Sentencing Memorandum (docket no. 42), 3-4. On September 11, 2008, Callanan filed a Sentencing Memorandum calling the court's and the prosecution's attention to the paragraph of the plea agreement stipulating to a base offense level of 12, because the defendant distributed less than 5 grams of heroin to another person, and asking the court to adopt that stipulation. Defendant's Sentencing Memorandum (docket no. 45), 2.
On September 12, 2008, the day after Callanan filed his Sentencing Memorandum, the prosecution promptly filed an Amended Sentencing Memorandum in which the prosecution stated,
The government filed a sentencing memo indicating that it intended to produce evidence in support of the higher drug quantity found by the probation office. Defendant reminded the government that the plea agreement contained a stipulation as to drug quantity. Defendant has done nothing to breach the plea agreement, and therefore the United States is bound by its agreement. Accordingly, the government will maintain that the defendant should be sentenced on a base offense level 12 for drug quantity.
Prosecution's Amended Sentencing Memorandum (docket no. 46), 1; see also id. at 2 ("In the plea agreement reached by the parties, the United States and the defendant stipulated to a base offense level 12 for drug quantity. The United States Probation Office found a base offense level 32 [sic: 30] was appropriate based on historic drug quantities. (PSIR ¶¶ 22, 23, 24 & 25). The United States is bound by the plea agreement and maintains that the proper base offense level is 12.").
3. The prosecutorial misconduct issue
At the sentencing hearing on September 25, 2008, Chief Judge Reade raised what she described as a "serious problem with this case" concerning defendant Callanan's complaint about drug quantity and request for a new attorney. Real Time Transcript, September 25, 2008, Sentencing Hearing (Transcript of First Sentencing Hearing), 3.[2] Chief Judge Reade found that "[t]his is the third time in a very short amount of time when the Court is faced with a situation where the government has breached a plea agreement." Id. After identifying the two previous situations, see United States v. Mosley, 505 F.3d 804 (8th Cir.2007); Dicus, 579 F.Supp.2d 1142, 2008 WL 4402214,[3] Chief Judge Reade stated that she had realized that "something was wrong," yet again, from defendant Callanan's letter. Id. at 4. She then observed, I thought this would work out at sentencing, until I received the amended sentencing memo filed by the United States on the 12th of September, in which they admit that the sentencing memo they had previously filed at document 42 was not consistent with the plea agreement. The plea agreement agreed to a specific offense level. And in the sentencing memo filed as document 42, the government argued to the Court that the Court should find that the drug quantity was as found by the probation office. The probation office had gone to the discovery file and apparently found an interview wherein the defendant admitted more drug quantity in prior years. This kept me awake last night because the Court was faced with what I believe is, again, a serious breach of a plea agreement. Drug quantity is one of the central issues in this case. And the government, for whatever reason maybe they didn't read their own plea agreementbut they argued to me already in document 42 for the different drug quantity. Under those circumstances, this Court has no choice but to recuse, once again, for breach of a plea agreement. This is a pattern that I think the U.S. Attorney's Office in this district had best deal with. And it isn't just that it upsets Mr. Callanan, although it clearly upset Mr. Callanan and his attorney, but it is the total waste of the government's resources when I consider the government as a whole. This case I set aside time for. I prepared for. The attorneys prepared for it. The marshals during this flood situation are under a great deal of stress. They have to move prisoners from a great distance away for a sentencing at nine o'clock in the morning. They've been inconvenienced. They've wasted the taxpayer's money because of this. And now we have to move this defendant to a different judge and start all over again. And that nearest judge is 350 miles away. So what that's going to involve is moving Mr. Callanan to Sioux City for a sentencing. Mr. Roush [defense counsel] is going to have to travel over there at government expense, and that's a full day's travel, in addition to preparation time. So I am very disturbed about this. I don't understand it. And I hereby recuse myself from this case.
Transcript of First Sentencing Hearing at 4-6.
The Assistant United States Attorney (AUSA) prosecuting the case requested the opportunity to respond to Chief Judge Reade's finding that the government had breached the plea agreement and was granted leave to do so. Id. 7. The AUSA admitted that the argument for a higher drug quantity and base offense level in the initial Sentencing Memorandum was "an oversight" and "an error," because he had not remembered that there was a stipulation as to drug quantity, but he asserted that he had promptly indicated, in the Amended Sentencing Memorandum, that the prosecution would stand by the plea agreement. Id. at 8. The AUSA argued, "Because my error was pointed out and my oversight was pointed out before we got to the sentencing hearing, I don't believe there's been any breach of the plea agreement." Id. The prosecutor then reiterated his intention to stand by the plea agreement. Id.; see also id. at 9 (acknowledging, again, that there had been a mistake, but that it had been addressed by the Amended Sentencing Memorandum before the hearing, that the prosecution did not intend to offer any evidence, and that, consequently, there had been no breach of the plea agreement). The prosecutor also suggested that the defendant had made arguments concerning acceptance of responsibility that were in breach of the plea agreement. Id. at 8-9.
The prosecutor's arguments notwithstanding, Chief Judge Reade stood by her finding of a breach of the plea agreement and her decision to recuse herself, finding that the prosecution could not "unring the bell" after arguing for a drug quantity substantially in excess of the quantity to which the parties had stipulated in the plea agreement. Id. at 10. She concluded, as follows:
The other thing I would say is, I do not excuse the government's behavior. I think that the government, as the people's representative, has a higher burden to make sure that they are in strict compliance with the agreements that they make. The defense side is somewhat different. Defense attorneys do their client's bidding to the extent that it is not unethical. And the government is held in these agreements to a much higher standard, and I think that is appropriate in view of the penalties that defendants face in the federal system.
Transcript of First Sentencing Hearing at 11-12.
Subsequently, on September 29, 2008, Chief Judge Reade entered an order recusing herself from this matter, pursuant to Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), as construed in Mosley, 505 F.3d 804, based upon her finding that the prosecution had breached its plea agreement in this case. See Order (docket no. 48). In her recusal order, Chief Judge Reade found that the prosecution's argument, in its initial Sentencing Memorandum, for a finding that Callanan was responsible for 751.27 grams of heroin and that his base offense level should be 30 was "a clear violation of the Plea Agreement." Id. at 1. She found, further, that the language of the plea agreement "is plain and unambiguous, and thus the court shall hold the government to its end of the bargain." Id. at 2. Because she concluded that her finding of a breach of the plea agreement required her to recuse herself, she directed the Clerk of Court to reassign the case to another district court judge. Id.
After Chief Judge Reade recused herself, this matter was reassigned to me for sentencing.
B. The Sentencing Hearing
This matter came before me on October 21, 2008, for sentencing, after reassignment to me following Chief Judge Reade's recusal. In an effort to minimize some of the inconvenience to the defendant and his counsel arising from the need to sentence defendant Callanan before a different district court judge, I reset Callanan's sentencing in Cedar Rapids, Iowa, instead of Sioux City, Iowa.
Prior to the rescheduled sentencing hearing, both parties filed supplemental sentencing memoranda. In his Sentencing Memorandum (docket no. 51), filed October 14, 2008, defendant Callanan notes only that the parties had stipulated to appropriate guidelines calculations, including a base offense level of 12. He does not, however, make any reference to the prosecution's breach of the plea agreement found by Chief Judge Reade or argue for any specific remedy or sanction for such breach. In its Supplemental Sentencing Memorandum (docket no. 52), filed October 15, 2008, the prosecution merely states, "In the plea agreement reached by the parties, the United States and the defendant stipulated to a base offense level 12 for drug quantity. The United States Probation Office found a higher base offense level appropriate based on historic drug quantities. (PSIR ¶¶ 22, 23, 24 & 25). The United States is bound by the plea agreement and maintains that the proper base offense level is 12." Prosecution's Supplemental Sentencing Memorandum (docket no. 52), 1-2. Also prior to the hearing, on October 20, 2008, I entered an order directing the parties to review and be prepared to discuss the following decisions as they relate to what sanctions, if any, should be imposed for the prosecution's breach of defendant Callanan's plea agreement: United States v. Dicus, 579 F.Supp.2d 1142, 2008 WL 4402214 (N.D.Iowa 2008), and United States v. Horn, 29 F.3d 754 (1st Cir.1994).
I find that the breach of the plea agreement in this case was inadvertent and due to a mistake and, still more specifically, that the AUSA prosecuting the case had no intent to violate the plea agreement. When his violation was pointed out to him by defense counsel, he took prompt remedial action and withdrew his sentencing memorandum improperly urging the court to find a much higher base and total offense level. I also find that there was a total absence of facts to support a finding of bad faith and, indeed, that there was no bad faithnot even a whiff of it. I have always found that, during this AUSA's 11 years with the United States Attorney's Office for the Northern District of Iowa, he has acted with the utmost integrity and with an unfailing commitment to the highest ethical standards. I also find that this AUSA, unlike some in his position, has a deep understanding of and appreciation for the difference between "hard blows" and "foul ones," to use the parlance of Justice Sutherland. See Berger, 295 U.S. at 88, 55 S.Ct. 629. In sum, I find that this AUSA is a model prosecutor who demonstrates the highest ethical and professional standards of his noble calling.
At the sentencing hearing on October 21, 2008, in response to a question from me about any remedial steps that the U.S. Attorney's Office for the Northern District of Iowa has taken to avoid breaches of plea agreements in the futuregiven this recent and recidivist trio of such breaches by that Officethe prosecutor responded that the response had been fourfold. First, immediately upon receipt of my opinion in Dicus, the Criminal Section Chief held a meeting with the Assistant U.S. Attorneys in the District. Secondly, there was a prompt hour-long training session on the subject of plea breaches by the U.S. Attorney's Office. While I did not inquire as to the details of the training, my hope is that the purpose of the training was to avoid similar breaches in the future rather than, for example, to brainstorm on theories about how to get the Dicus opinion overturned or to plot strategies to wiggle out of future breaches. Thirdly, the Office is working on revising the plea agreements to highlight changes made in the negotiation process so as to provide an extra alert to AUSAs and, thus, to assist in avoiding plea breaches. Finally, the Office is going to engage in further training on the subject. Based on these representations, I find that the United States Attorney's Office for the Northern District of Iowa has undertaken good faith remedial measures to reduce the likelihood of future breaches of plea agreements.
II. LEGAL ANALYSIS
A. Analytical Process For Breach Of A Plea Agreement
In Dicus, I recognized the due process implications of the prosecution's breach of a plea agreement and the "recidivist" status of the United States Attorney's Office for the Northern District of Iowa, in light of the violations of plea agreements, in similar ways and within a relatively short time span, in that case and in Mosley. Dicus, 579 F.Supp.2d at 1150, 2008 WL 4402214 at *7. The court little expected that it would be faced with yet another breach of a plea agreement so soon, even from a "recidivist." I also noted that, when a defendant asserts that the prosecution has breached a plea agreement, the court engages in a two-step process: The court must first determine whether or not there has been a breach of the plea agreement, and if there has been a breach, then determine the proper remedy. Id. at 1151, 2008 WL 4402214 at *8 (citing United States v. E. V., 500 F.3d 747, 751 & 754 (8th Cir.2007), and Mosley, 505 F.3d at 809-12, noting that the latter case held that, where there has been a breach of the plea agreement, harmless-error analysis does not apply, and the court must consider the proper remedy). As in Dicus, Chief Judge Reade has already performed the first step in this case, by finding a breach of the plea agreement by the prosecution, and the two-step analysis is, again, bifurcated, because Chief Judge Reade has recused herself pursuant to Santobello, 404 U.S. at 262-63, 92 S.Ct. 495 (1971), as construed in Mosley, 505 F.3d at 809-12, leaving sentencing to me. Dicus, 579 F.Supp.2d at 1151, 2008 WL 4402214 at *8. I find, again, however, that, because the nature of the breach is relevant to the proper remedy, it is appropriate for me to examine both steps in the process. Id.
B. Step One: Breach
As to the first step, determination of breach of the plea agreement, the court, interpreting the plea agreement according to general contract principles, considers whether the plea was induced by an "`enforceable, bargained-for term of the plea agreement' that has been violated." Id. (quoting E. V., 500 F.3d at 752). I concur in Chief Judge Reade's conclusion that the stipulation in the plea agreement to a base offense level of 12, based on an offense involving less than 5 grams of heroin, was an "enforceable, bargained-for term of the plea agreement" that undoubtedly induced the defendant's plea, id., in light of the potential for a much higher base offense level based on much higher quantities of heroin. I also concur in Chief Judge Reade's finding that this term was clear and unambiguous. Moreover, I agree with Chief Judge Reade that failure of the prosecution to live up to this term of the plea agreement, by arguing for a drug quantity more than 150 times the agreed quantity and a base offense level 18 levels higher than the agreed level, had the argument been allowed to stand, would have constituted a very serious breach of the plea agreement.
Nevertheless, had it been left to me, I am not sure that I would have found that the prosecution breached this base offense level term of the plea agreement in this case, id. (a bargained-for term of the plea agreement must have been violated), where, prior to the sentencing hearing, the prosecution acknowledged and corrected its improper argument for a higher drug quantity and higher base offense level and expressly reaffirmed its intention to stand by the plea agreement at sentencing.[4] That said, my doubts are not deep-seated, a finding that no breach occurred based upon retraction of the offending argument may be contrary to the majority rule, and even if the issue is a close call in light of the prosecution's efforts to promptly rectify the situation in this case, I believe that it is important to defer to Chief Judge Reade's finding that the prosecution breached the plea agreement, where the "breach" and "remedy" steps in the analysis are bifurcated, as they are here. Additionally, prudential reasons suggest that, in the circumstances presented here, deference to a colleague's findings of breach of a plea agreement is warranted.
Moreover, the prosecution has offered no satisfactory argument that there was no breach in this case. As explained just above, the prosecution's argument that retraction of an improper argument means that there was no breach is contrary to the majority rule. Equally unavailing is the prosecution's assertion, at the October 21, 2008, sentencing hearing, that the filing of its September 2, 2008, Sentencing Memorandum asking for an increase from the stipulated base offense level of 12 to 30 was somehow not a breach of the plea agreement. At the hearing, for the first time, the prosecutor argued that there was no breach of the plea agreement based on paragraph 21 of that agreement. The pertinent paragraph states the following:
21. The defendant, his attorney and the United States may make whatever comment and evidentiary offer they deem appropriate at the time of the guilty plea, sentencing or any other proceeding related to this case, so long as the offer or comment does not violate any other provision of this agreement. The parties are also free to provide all relevant information to the probation office for use in preparing the presentence report.
Plea Agreement, ¶ 21. The prosecutor suggested that this paragraph meant that, so long as his improper argument was withdrawn before the sentencing hearing, there was no breach of the plea agreement. This argument is beyond frivolous and beneath the dignity of any officer of the courtespecially the United States Attorney's Officeeven after that Office's recent recidivist breaches of multiple plea agreements. Paragraph 21 would have expressly prohibited the prosecutor's argument for a base offense level higher than 12, because such an argument would plainly violate the stipulation in paragraph 20.A. that the appropriate base offense level is 12. See id. (permitting the United States to offer evidence or to make comments "so long as the offer or comment does not violate any other provisions of this agreement"). Paragraph 21 is completely silent about withdrawal of improper arguments. Thus, no reading of paragraph 21, however strained, exculpates the United States Attorney's Office for the Northern District of Iowa from a judicial finding that the Office's improper argument here was a clear breach of the plea agreement.
Therefore, I decline to "unring the bell" and set aside Chief Judge Reade's finding of a breach of the plea agreement by the prosecutor, the representative of the executive branch of government, as the prosecutor has urged me to do here.
C. Step Two: Remedy
1. Available remedies
Although I am unwilling to revisit the question of whether or not the prosecution has breached the plea agreement in this case, I believe that it is appropriate for me to reach an independent conclusion about what, if any, remedy is required for the breach of the plea agreement found by Chief Judge Reade. This is so, because the second step in the analysis, the determination of the appropriate remedy, is entirely for me to decide. Dicus, 579 F.Supp.2d at 1152, 2008 WL 4402214 at *8, 9 (citing Mosley, 505 F.3d at 809-12, as holding that, where there has been a breach of the plea agreement, harmless-error analysis does not apply, and the court must consider the proper remedy).
In Dicus, I noted that the typical remedies for the prosecution's breach of a plea agreement are allowing the defendant to withdraw his guilty plea or to demand specific performance of the plea agreement. Id. at 1152, 2008 WL 4402214 at *9. I also noted that the Second Circuit Court of Appeals had held that "`[t]here is a very limited exception to the need for a remedy for a plea agreement breach by the government where the violation is so minor that it does not cause the defendant to suffer any meaningful detriment.'" Id. at 1153, 2008 WL 4402214 at *10 (quoting United States v. Vaval, 404 F.3d 144, 155 (2d Cir.2005)). The Second Circuit Court of Appeals explained that, "[i]n assessing whether a defendant suffered a meaningful detriment, the critical question is what the defendant reasonably understood to be the terms of the plea agreement, and whether his or her reasonable expectations have been fulfilled." Vaval, 404 F.3d at 155. Similarly, the Eighth Circuit Court of Appeals has held that no relief from the prosecution's violation of a plea agreement was appropriate where the sentencing court refused to impose the enhancement for which the prosecution had improperly argued, in derogation of its promises in a plea agreement. See E. V., 500 F.3d at 755. Finally, in Dicus, I concluded that, where typical remedies are inadequate, the "touchstones" for the appropriate remedy were identified in Santobello as "`the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.'" Dicus, 579 F.Supp.2d at 1156, 2008 WL 4402214 at *13 (quoting Santobello, 404 U.S. at 262-63, 92 S.Ct. 495). Using these "touchstones" in Dicus, I concluded that the appropriate remedy was to reduce the defendant's sentence to the low end of his advisory sentencing guidelines range, even though I would otherwise have sentenced him at the top of his guidelines range, as a sanction for serious and recidivist prosecutorial misconduct. Id. at 1157-61, *2008 WL 4402214 at *14-17. The circumstances of the present case suggest that I must now consider whether additional sanctions may also be appropriate as remedies for the prosecution's breach of a plea agreement.
2. Is any remedy required?
I have carefully considered whether this might be a case in which no remedy is appropriate, because the prosecution's breach of the plea agreement was not "serious," but "minor," because it was promptly acknowledged by the prosecution, the improper argument was withdrawn, and the improper argument caused the defendant no meaningful detriment. See Vaval, 404 F.3d at 155 (no remedy is required for the prosecution's violation of a plea agreement "where the violation is so minor that it does not cause the defendant to suffer any meaningful detriment."). I find that the breach here was "minor," in the sense that the prosecution's initial sentencing recommendation was plainly in breach of the plea agreement, but that argument was promptly withdrawn before the sentencing hearing. Moreover, I cannot imagine what more prompt and appropriate action the prosecutor in this case could have taken to remedy his initial, improper sentencing recommendation; indeed, he is to be commended for his efforts to put the matter right before the court could act on his improper recommendation. His actions, thus, were consistent, not inconsistent, with the special responsibilities of the United States Attorney to do justice, not simply to win, noted in Berger, 295 U.S. at 88, 55 S.Ct. 629, and quoted above. The AUSA in this case has practiced before me for 11 years, and I have had him on many, many criminal cases, including two of the most complicated, daunting, and lengthy criminal cases ever tried in this district, which resulted in nearly thirty reported decisions. On every occasion, he has performed admirably, and he has always maintained the highest commitment to fairness and integrity. In short, he is a model AUSA who, as Justice Sutherland observed in Berger, 295 U.S. at 88, 55 S.Ct. 629, understands fully that he may "prosecute with earnestness and vigor" and that he may "strike hard blows," but "is not at liberty to strike foul ones." In this case, I specifically find that the breach of the plea agreement was not intentional and was the result of inadvertence and mistake. When the prosecutor was made aware of his error, he took prompt remedial action. This is the exact opposite of the responses of the AUSAs in Mosley and Dicus, which were to continue to press arguments that were in direct violation of the plea agreements and that, as a result, were thinner than a Ginsu-sliced tomato. Therefore, in this case, the defendant's reasonable expectations have ultimately been fulfilled, because the prosecution has reaffirmed that it will stand by the plea agreement. See Vaval, 404 F.3d at 155 ("In assessing whether a defendant suffered a meaningful detriment, the critical question is what the defendant reasonably understood to be the terms of the plea agreement, and whether his or her reasonable expectations have been fulfilled.").
Nevertheless, I cannot find that the defendant suffered no meaningful detriment from the prosecution's breach of the plea agreement in this case. Id. From at least September 2 through September 12, 2008, the dates of the prosecution's initial Sentencing Memorandum containing the improper argument concerning base offense level and drug quantity and the prosecution's Amended Sentencing Memorandum withdrawing the improper argument and reaffirming the plea agreement's base offense level and quantity stipulationsand almost certainly for longer than that, because the defendant's letter to Chief Judge Reade dated August 26, 2008, shows that he was already concerned about the status of the stipulations in his plea agreement based on the PSIRthe defendant was in dread that he would face a sentence based on a drug quantity more than 150 times the agreed quantity and a base offense level 18 levels higher than the agreed level. More generally, defendantsand, indeed, the public, the defense bar, and the courtsuffer from a loss of confidence and faith in prosecutors and their function when prosecutors breach plea agreements and, thus, violate the due process rights of the accused. That detriment is amplified here, where this United States Attorney's Office has been caught in recidivist breaches of plea agreements and, thus, repeated violations of the due process rights of the defendants.
I have also carefully considered whether this is a case in which no relief from the prosecution's violation of a plea agreement is appropriate, because I, as the sentencing judge, have refused to impose the enhancement for which the prosecution initially, improperly argued, in derogation of its promises in a plea agreement. See E. V., 500 F.3d at 755. Specifically, after the finding of a breach by another judge, I have disregarded the higher drug quantity and higher base offense level recommended by the probation office and initially, improperly recommended by the prosecutor and, instead, consistent with the plea agreement, I have found that the base offense level is 12, based on less than 5 grams of heroin. Thus, the defendant stands in the same position that he would have occupied, had the original judge been presented only with a sentencing recommendation by the prosecution that was consistent with the plea agreement and the very different recommendation of the probation office in the PSIR for a much higher base offense level based on a much higher drug quantityi.e., the defendant stands in the same position that he would have occupied had there been no breach of the plea agreement by the prosecution. I recognize that, in Mosley, the Eighth Circuit Court of Appeals cited Santobello, 404 U.S. at 262-63, 92 S.Ct. 495, as holding that it was immaterial whether the trial judge, who had sentenced the defendant prior to discovery of the prosecution's breach of the plea agreement, had subsequently stated that the prosecution's improper sentencing recommendation had not influenced him. Mosley, 505 F.3d at 810. The Eighth Circuit Court of Appeals concluded from this holding in Santobello that the Supreme Court had rejected the view that the prosecution's breach could have been harmless. Mosley, 505 F.3d at 810. Here, in contrast to the circumstances in Santobello, Callanan had not yet been sentenced when the prosecution's improper sentencing recommendation, in breach of the plea agreement, was discovered by the parties and expressly and unequivocally withdrawn by the prosecution, with a reaffirmation of the prosecution's intent to stand by the plea agreement. Thus, while harmless-error analysis does not apply to the prosecution's breach of a plea agreement, Mosley, 505 F.3d at 811, it might be possible to find that the breach has not actually prejudiced the defendant, because I have refused to impose the enhancement for which the prosecution initially, improperly argued, in derogation of its promises in a plea agreement. See E. V., 500 F.3d at 755.
Here, however, I find that I must consider not only whether no other remedy is requiredbecause of my refusal to impose the enhancement for which the prosecution initially, improperly argued, in derogation of its promises in the plea agreement, see id., which has the same effect as enforcing the breached term of the plea agreement, as the parties now requestbut also consider whether some other remedy or sanction is required, because this is not the first time that this United States Attorney's Office has breached a plea agreement. The first step in my consideration of that question is to determine whether enforcement of the plea agreement is a sufficient remedy.
3. Sufficiency of a typical remedy
Unlike the situation in Dicus, where the typical remedies for breach of a plea agreement by the prosecutionallowing the defendant to withdraw his guilty plea or to seek specific performance of the plea agreementwere inadequate, see Dicus, 579 F.Supp.2d at 1156, 2008 WL 4402214 at *12, in this case, I find that the latter remedy of specific performance of the plea agreement is entirely appropriate. Indeed, in Callanan's September 11, 2008, Sentencing Memorandum, in which he pointed out that the prosecution's initial sentencing recommendation was contrary to the stipulation concerning his base offense level, Callanan expressly asked the court to adopt that stipulation. Defendant's Sentencing Memorandum (docket no. 45), 2. Thus, specific performance is the remedy initially selected by the defendant in this case.[5] Such a remedy also serves what I indicated in Dicus were the "touchstones" for the appropriate remedy, gleaned from Santobello: "`the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.'" Dicus, 579 F.Supp.2d at 1156, 2008 WL 4402214 at *13 (quoting Santobello, 404 U.S. at 262-63, 92 S.Ct. 495). This is so, because the defendant receives what he expected from the plea agreement, and the prosecution's promise is enforced.
This comparatively limited remedy is all the more appropriate where the breach in question was inadvertent and devoid of any bad faith and, moreover, where the prosecutor took prompt remedial action as soon as he had notice of his mistake. It is also made more appropriate by the remedial actions of the United States Attorney's Office for the Northern District of Iowa since my decision in Dicus to attempt to prevent further such incidents. As noted above, those remedial actions have included the following: (1) a meeting called promptly by the Criminal Section Chief with the AUSAs in the district to discuss the problem; (2) a prompt training session on the subject of plea breaches by the United States Attorney's Office; (3) attempts to revise the plea agreements to highlight changes made in the negotiation process so as to provide an extra alert to AUSAs and, thus, to assist in avoiding plea breaches; and (4) a commitment to engage in further training on the subject. These good faith actions to avoid future breaches temper the remedy that I feel it is necessary to impose for this breach.
4. Rejection of the remedy applied in Dicus
I expressly do not find that a sentencing reduction is an appropriate remedy in this case, although I did find that such a remedy was appropriate in Dicus, because I do not find that it is necessary to impose tangible consequences for the prosecution's misconduct in this case, beyond enforcement of the base offense level to which the parties stipulated, notwithstanding that the defendant could have been subject to a much higher base offense level, if I had adopted the probation office's recommendation in the PSIR or the prosecution's initial, improper recommendation. See Dicus, 579 F.Supp.2d at 1158, 2008 WL 4402214 at * 15 (citing Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 2 & n. 10 (unpublished draft, September 2, 2008; used by permission), as citing commentators who have suggested that the appropriate remedy is a combination of sanctions, including sentence reductions, to deter misconduct and to give defendants an incentive to raise misconduct claims). Nor is such a remedy necessary in this case to provide an important incentive to defendants to raise issues of prosecutorial misconduct, where this defendant has received what he expected to receive from the plea agreement's stipulation on a base offense level of 12. Id. The remedy of a sentence reduction also is not necessary here, because the typical remedy of specific performance enforcement of the plea agreement is adequate and available. Id. Finally, such a remedy is not necessary to serve the interests of justice from a public perspective, where those interests are served by enforcement of the plea agreement. Id.
5. Imposition of fees and costs
Finally, I turn to the question of whether some other remedy or sanction is also required or appropriate, in addition to enforcement of the breached term of the plea agreement, because this is not the first time that this United States Attorney's Office has breached a plea agreement. As I remarked at the outset of this opinion, and I have been at pains to reiterate throughout, this is the third time in less than a year, and the second time in just two months, that a prosecutor in this United States Attorney's Office has breached a plea agreement. These circumstances, seem to me, to require consideration of additional sanctions. Although I do not make a practice of checking whether my prior decisions have been appealed, I have been advised that both parties have now appealed my decision in Dicus. Thus, recognizing the possibility that the Eighth Circuit Court of Appeals could conclude that a sentencing reduction is not an appropriate remedy for the prosecution's breach of a plea agreement, I wish to explore whether sanctions directed at individual breaching prosecutors are also available remedies to combat what has now because a serious recidivism problem with breaching plea agreements in the United States Attorney's Office for this district.
In Dicus, I contemplated, albeit only briefly, whether a fine was an appropriate remedy for prosecutorial misconduct, but I noted that "a fine against the prosecutor personally would inflict a private sanction for official misconduct, and a fine against the United States would be no deterrent at all, no matter how large." 2008 WL 4402214 at *15. It appears, however, that even the court's supervisory power to sanction misconduct of parties practicing before it cannot overcome the sovereign immunity of the federal government. See, e.g., United States v. Horn, 29 F.3d 754, 767 (1st Cir.1994) (after an extensive analysis of the "unavoidable tension" between the doctrines of sovereign immunity and supervisory power, in a case considering whether principles of sovereign immunity bar a federal district court, exercising its supervisory power, from assessing attorneys' fees and costs against the federal government in a criminal case for "unpardonable misconduct committed by a federal prosecutor who should have known better," holding "that fee-shifting against the government can be accomplished only in conjunction with the passage of a statute (or a sufficiently explicit rule having the force of a statute) that authorizes such an award. In the absence of such an enactment, the secondary principle of sovereign immunity saves the federal government harmless from all court-imposed monetary assessments, regardless of their timing and purpose.").
That is not to say that the court is powerless to sanction individual prosecutors, however. As the First Circuit Court of Appeals explained in Horn, "There would seem to be no sovereign immunity bar to imposing a monetary penalty as a sanction against a rogue attorney merely because she happens to represent the federal government." Id. at 766 n. 14 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Chilcutt v. United States, 4 F.3d 1313, 1327 (5th Cir.1993); and United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 F.2d 1365, 1370-71 (9th Cir.1980)). The court in Horn explained, further,
The fact that sovereign immunity forecloses the imposition of monetary sanctions against the federal government in criminal cases does not leave federal courts at the mercy of cantankerous prosecutors. Courts have many other weapons in their armamentarium. This case aptly illustrates the point. The district judge ordered, among other things, the removal and quarantine of the lead prosecutor, the suppression of tainted documents, and the advance disclosure of the government's trial strategy. In addition, the judge could have ordered the lead prosecutor to pay the accumulated fees, see Chilcutt, 4 F.3d at 1319 (upholding order that government counsel pay, inter alia, for time spent by defense counsel at contempt hearing, without being reimbursed); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1370-71 (9th Cir. 1980) (upholding imposition of monetary sanction for discovery abuse against government attorney as the "only available target for such sanctions"), but did not see fit to do so. He also could have ordered the prosecutor to attend ethics seminars at her own expense, see Chilcutt, 4 F.3d at 1319, dispatched her to the Justice Department's internal disciplinary office, see [United States v.] Hasting, 461 U.S. [499,] 506 n. 5, 103 S.Ct. [1974,] 1979 n. 5, 76 L.Ed.2d 96 [(1983)], or publicly reprimanded the Justice Department itself, see United States v. Prince, 1994 WL 99231 at *1-2, 1994 U.S.Dist. LEXIS 2962 at *1-4 (E.D.N.Y.1994). While this list is not exhaustive, we are confident that it shows beyond serious question that the court had ample means at its disposal, even without feeshifting, to catch the Justice Department's attention, punish the culprit, and deter future prosecutorial excesses.
Horn, 29 F.3d at 766-67 (footnotes omitted).
I remain just as reluctant now as I was at the time of my decision in Dicus to impose a fine against the prosecutor personally, because doing so would inflict a private sanction for official misconduct. 2008 WL 4402214 at *15. That reluctance could wane rapidly, however, in the face of any further violations of plea agreements by prosecutors in the United States Attorney's Office for the Northern District of Iowa. Like Chief Judge Reade, I believe that "[t]his is a pattern that I think the U.S. Attorney's Office in this district had best deal with." Transcript of First Sentencing Hearing at 5. If the only way to catch the attention of the attorneys in that office as to the extent of my displeasure with repeated violations of plea agreements is to sanction them individually and personally, in an appropriate case, I will do so.
This is not, however, the appropriate case in which to impose additional, individual sanctions. As I observed above, the prosecutor's breach of the plea agreement in this case was inadvertent, and I cannot imagine what more prompt and appropriate action the prosecutor in this case could have taken to remedy his initial, improper sentencing recommendation, and he is to be commended, not sanctioned, for his efforts to put the matter right before the court could act on his improper recommendation. Therefore, while I leave the door wide open to impose sanctions, including monetary sanctions, against individual prosecutors for prosecutorial misconduct in an appropriate case, I will not impose such a sanction in this case.
I recognize that, because my decision in Dicus was filed only the day before Callanan's first sentencing hearing, it could not have provided the prosecutors in the United States Attorney's Office for the Northern District of Iowa with any warning of the possibility of individual sanctions against a breaching prosecutor, any more than it could have provided them with warning of the possibility of a sentence reduction as a possible remedy, before the breach of the plea agreement occurred in this case. The circumstances going forward, however, are quite different, and the prosecutors are now on notice of the full panoply of possible remedies and sanctions that I may consider, in appropriate cases, for any future breaches. Those prosecutors should also have no doubt that my patience is at an end, after three such breaches, two within the last two months, and that the defense bar, the public, and the court can reasonably expect that plea agreements will be scrupulously complied with in the future. Therefore, in the future, even "inadvertent" breaches of plea agreements may incur individual sanctions. I note that Chief Judge Reade, likewise, observed concerning the most recent breach of a plea agreement that she was "very disturbed about this" and she "d[id]n't understand it." Transcript of First Sentencing Hearing at 6.
III. CONCLUSION
Upon the foregoing, I conclude that the appropriate remedy for prosecutorial misconduct in this case is enforcement of the breached term of the plea agreement. Therefore, I determined that defendant Callanan's base offense level is 12. His total offense level rises to 16 based on a stipulation that he should receive at least a 4-level increase for substantial risk of death to another due to the heroin distribution. Finally, his total offense level is reduced by two levels for his acceptance of responsibility. Thus, his advisory United States Sentencing Guidelines range is 37-46 months and, after fully considering the 18 U.S.C. § 3553(a) factors, I have sentenced Callanan to a term of 42 months.
IT IS SO ORDERED.
NOTES
[1] Wikipedia reminds us that "[t]he Ginsu knife is a product most famous for the promotional activities that were used to promote it. It was made famous through a series of long-form advertisements in the 1970s and it is claimed paved the way for the modern day infomercial with its use of quirky catchphrases, comical quips, and urgent call to action, including the phrase `how much would you pay . . . don't answer' and `but wait, there's more.'" http://en.wikipedia.org/wiki/Ginsu knife. A current shopping website featuring Ginsu knives proclaims, "We all remember the late-night TV advertisements that demonstrated the Ginsu knives cutting through tin cans and sawing through lead pipes and then thinly slicing tomatoes. The Ginsu knives can tear through leather and then cut perfect bread slices." http://www.shopginsu.com/s.nl/ it.A/id.120/.f?category=997 & sc=130.
[2] The record reflects that, at the sentencing hearing on September 25, 2008, the defendant explained that his problems with his attorney were a "misunderstanding" and that he was, therefore, withdrawing his request for a new attorney. Transcript of First Sentencing Hearing at 6-7.
[3] Although Chief Judge Reade had found a breach of the plea agreement in Dicus's case in a sealed order dated December 12, 2007, my decision regarding the remedy for that breach was not filed until the day before Callanan's sentencing hearing before Chief Judge Reade. Thus, my decision in Dicus could not have been a "warning shot" in this case concerning remedies for breaches of plea agreements.
[4] Case law is somewhat mixed on whether or not asserting an improper argument, then retracting that argument before the sentencing, constitutes a breach of the plea agreement, although the majority position appears to be that an improper argument is a breach of the plea agreement, even if that improper argument is later retracted. Compare United States v. Munoz, 408 F.3d 222, 227-29 (5th Cir.2005) (the prosecution breached the plea agreement by urging an improper enhancement, even though, in closing, the prosecutor asked the court to follow the plea agreement, because that request, in light of the prosecutor's position on the enhancement, "amounted to little more than lip service to the plea agreement and did not rectify the breach"); United States v. Taylor, 77 F.3d 368, 370-71 (11th Cir.1996) (where the prosecution had advocated a position contrary to the requirements of the plea agreement, but then ultimately recommended a sentence in compliance with the plea agreement, the latter recommendation "merely paid `lip service' to the agreement, [and wa]s insufficient to rectify the breach committed when the government advocated a position requiring a longer sentence than it had agreed to recommend"); United States v. Kurkculer, 918 F.2d 295, 298 & n. 5 (1st Cir.1990) ("The trial judge stated that he was not influenced by the [prosecution's] offending sentencing recommendation, and held that the prosecution's retraction not only remedied the breach, but that there somehow was no breach at all," and even though there was no dispute on appeal that there was a breach, the appellate court observed that "[i]t was clear error to say that no breach ever occurred"); with United States v. Nguyen, 213 F.3d 644, 2000 WL 300937 (9th Cir.2000) (table op.) (concluding that no breach of the plea agreement occurred where the government corrected its improper recommendation in an amended sentencing memorandum); see also United States v. Amico, 416 F.3d 163, 165-68 (2d Cir.2005) (holding, as to one alleged breach, that "[w]hile we do not mean to imply that a retraction of an argument advanced by the government in violation of its plea agreement would always cure its breach, we conclude upon careful examination of all the circumstances, especially the mild, brief, and unassertive form of the statement and its rapid retraction, that the temporary breach was adequately cured"; holding as to other alleged breaches that there had been no breach at all; and holding that a final alleged breach "was at worst a technical violation which had no consequence and should not require vacating the sentence"); In re Arnett, 804 F.2d 1200, 1204 (11th Cir.1986) (the prosecution breached the terms of the plea agreement by seeking forfeiture of the defendant's farm, but because the defendant had suffered no prejudice "to date" from the filing of the complaint for forfeiture of his farm, it was "appropriate . . . to allow the United States Attorney to cure the breach of the plea bargain by withdrawing the forfeiture action against [the defendant's] house and farm," but if the prosecution elected to pursue its forfeiture action, the district court was directed to grant the defendant's motion to vacate his plea).
[5] At the sentencing hearing on October 21, 2008, the defendant also argued that a Dicus-like remedy for the prosecution's breach of the plea agreement would be to reject the four-level upward departure pursuant to U.S.S.G. §§ 5K2.0, 5K2.2, and 5K2.21 to which he had stipulated in the plea agreement. For the reasons stated in this opinion, I reject that remedy.
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545 P.2d 88 (1975)
88 N.M. 622
Nathan W. WINDER, Plaintiff-Appellant,
v.
Patricia Medina MARTINEZ and Epiminio Medina, Defendants-Appellees.
No. 2002.
Court of Appeals of New Mexico.
December 16, 1975.
Certiorari Denied January 15, 1976.
*89 Tandy L. Hunt, Turpen, Hunt & Booth, Albuquerque, for plaintiff-appellant.
Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendants-appellees.
OPINION
WOOD, Chief Judge.
This lawsuit arose out of a motor vehicle collision. There is no issue concerning defendants' liability. The jury returned a verdict for plaintiff, who appeals. Plaintiff tendered testimony from a psychologist on the issue of damages. The dispositive issue is whether the trial court erred in excluding this testimony. This issue involves consideration of (1) evidence of brain damage; (2) hypothetical questions; (3) irrelevant and immaterial evidence; and (4) qualifications of a psychologist to testify.
In the presence of the jury the psychologist testified as to his training and experience. In addition, he testified that he was "certified" to practice psychology in New Mexico. See §§ 67-30-5(B)(4) and 67-30-11, N.M.S.A. 1953 (2d Repl.Vol. 10, pt. 1). He testified that he had evaluated the plaintiff and identified the factors involved in arriving at an evaluation.
These factors included: (a) an intensive interview, (b) various tests which were identified and explained, (c) plaintiff's age, education and work experience, (d) plaintiff's social and economic situation, and (e) the job market. There is no dispute about these factors.
Another factor considered was evaluations of plaintiff by others. The result of tests administered by the psychologist and the result of psychological tests administered by others were essentially the same.
In explaining the result of one of the tests, the psychologist referred to the "defective range of intellectual function." Defendants' objection was sustained; the trial court informed the jury: "There is no connection whatsoever between this man's intelligence and this automobile accident which we are concerned about here."
Plaintiff made a tender of proof outside the presence of the jury. Defendants made a series of objections to the tendered testimony. The trial court ruled: "The objection will be sustained, and for the further reason that this witness is not qualified to testify concerning brain damage, nor can such an evaluation or conclusion be made from psychological tests."
Brain Damage
The only reference to brain damage was two questions. The first question asked was whether the tests were capable of revealing brain damage. The psychologist answered: "... there are indicators on these instruments which would point to brain damage possibility." The second question, answered in the affirmative, was whether it was commonly accepted in the psychologist's profession that the tests "can indicate brain damage". Damages based on surmise, conjecture or speculation cannot be sustained. Damages *90 must be proved with reasonable certainty. Hebenstreit v. Atchison, Topeka & Santa Fe Ry. Co., 65 N.M. 301, 336 P.2d 1057 (1959). The two questions and answers concerning brain damage raised no issue concerning brain damage for two reasons: (1) the answers showed there was no more than a possibility that the tests could show brain damage, and (2) there was no attempt to show that the plaintiff had suffered brain damage.
Neither counsel contended that the tendered testimony went to brain damage. Concern with whether the tendered testimony of the psychologist raised an issue as to brain damage was interjected by the trial court. Since the tendered testimony did not raise an issue as to brain damage, we are not concerned with whether the psychologist was qualified to testify on the subject. See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).
Hypothetical Questions
The tendered testimony went to plaintiff's mental ability and his employment prospects. Plaintiff obtained the psychologist's opinion on these subjects by asking hypothetical questions. Defendants objected that the hypotheticals were not proper hypotheticals on three grounds. Since the trial court sustained the defense objections with a general ruling, we consider each of the grounds stated by defendants.
The first objection was that there were items included in the hypotheticals for which there had been no proof and for which there will be no proof. The second objection was there were statements in the hypotheticals which were factually incorrect. The third objection was that items were omitted from the hypotheticals which would have to be taken into consideration "for an intelligent or reasonable answer to be given."
What item had been included for which there was no proof? What was included that was factually inaccurate? What necessary item had been omitted? An objection which does not specify the particular ground on which the evidence is objectionable does not call the trial court's attention to the matter to be decided. Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). We doubt that the objections were sufficiently specific to be treated as objections; however, we do not decide the objections on that ground.
Our answer to the first two objections is factual. There was proof as to the items included in the hypotheticals; the items were not factually incorrect. All the items included in the hypotheticals can be found in evidence introduced prior to the tender.
The third objection went to items omitted from the hypothetical questions. II Wigmore on Evidence, 3d Ed., § 682(b) states:
"The question, on principle, need not include any particular number of facts; i.e. it may assume any one or more facts whatever, and need not cover all the facts which the questioner alleges in his case. The questioner is entitled to the witness' opinion on any combination of facts that he may choose... . [T]he questioner need not cover in his hypothesis the entire body of testimony put forward on that point by him or by the opponent, but may take as limited a selection as he pleases and obtain an opinion on that basis. Such is the orthodox doctrine as applied by most Courts." (Emphasis in Original.)
Wigmore, supra, states that the court may interfere to prevent questions which are valueless or are fairly likely to mislead the jury. Such is not the situation in this case. On the basis of plaintiff's work history, the psychologist's tests, and tests of others available to the psychologist, the psychologist was asked: "... would you have an opinion as to whether Mr. Winder's mental abilities were changed as a result of this collision?" After answering that he had an opinion, the psychologist was asked to state it. The opinion was: "... that his mental abilities *91 were changed ... we have to deal with the whole person concept and the functions that you indicate in the question are such that he was utilizing certain abilities, which according to the test results that I have, he no longer would be able to perform those functions." Subsequently the psychologist was asked to assume that an orthopedic surgeon had testified concerning plaintiff's ability to return to work upon restoration of muscle tone and conditioning. With this additional factor, the psychologist's opinion was that plaintiff's employment prospects were "relatively nil." The psychologist also testified that "there is no demonstrable residual functional capacity for employability." These questions and answers were not valueless and, in the context in which the questions were asked, would not have misled the jury.
State v. La Boon, 67 N.M. 466, 357 P.2d 54 (1960) states that counsel "may propound a hypothetical question based upon his theory provided it is based upon evidence which the jury could reasonably believe to be true... ." The jury could reasonably have believed the psychologist's testimony to be true.
The third objection to the hypothetical question was without merit. The trial court erred in sustaining the objections to the hypothetical questions. In so ruling, we have not considered Rule of Evidence 705 because neither side argues that rule.
Irrelevant and Immaterial
Defendants twice claimed that the psychologist's testimony was irrelevant and immaterial. Defendants never went beyond this general objection. This general objection was insufficient. Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct.App. 1973).
Qualification of the Psychologist to Testify
Defendants objected to the tendered testimony: "... on the grounds there's no proper foundation laid for the testimony of the witness as to the opinions given, either as to the existence of any psychological disability or in terms of the causation of that disability."
From the record before us we do not know when this lawsuit was filed and, therefore, do not know whether the Rules of Evidence are applicable to this case. See Supreme Court order as to effective date of the Rules of Evidence appearing in the annotation to § 20-4-101, N.M.S.A. 1953 (Repl.Vol. 4, Supp. 1973). Accordingly, in discussing the objection concerning the qualifications of the psychologist to testify, we do not consider Rules of Evidence 702, 703 and 704.
State v. Padilla, 66 N.M. 289, 347 P.2d 312, 78 A.L.R.2d 908 (1959) states:
"We adopt the modern trend of authority in allowing a properly qualified psychologist to give his opinion as an expert as to the result of tests made by him, but that such testimony should be limited to that which the witness is qualified to offer on the basis of his professional training and experience and which he can substantiate by evidence that would be acceptable to recognized specialists in the same field."
State v. Padilla, supra, held the admission of the psychologist's testimony in that case was error because the evidence was insufficient as to the witness's training and experience. That is not the situation in this case. Apart from the testimony concerning the psychologist's training and experience, it is undisputed that the psychologist has been certified by the State of New Mexico to practice psychology. Section 67-30-3(D), N.M.S.A. 1953 (2d Repl.Vol. 10, pt. 1) defines the practice of psychology to mean:
"... the application of established methods or procedures of understanding, predicting or modifying behavior. The application of said principles includes counseling, guidance, and behavior modification with individuals or groups with problems in the areas of work, family, school, and personal relationships; measuring and testing of personality, intelligence, *92 aptitudes, emotions, public opinion, attitudes, skills; teaching or lecturing in psychology; and doing research on problems relating to human behavior;..."
Since the psychologist's practice is defined to include the testing of intelligence, aptitudes and skills, and since the witness in this case was certified by the State to practice psychology, the Padilla requirement of training and experience was met.
The psychologist testified that his test results were essentially the same as tests conducted by others. He testified that two of the tests were "reliable instruments ... for the kinds of data that I obtained. Both of these are recognized by professional psychologists as being standard instruments that are traditionally used." There was nothing to the contrary. The Padilla requirement of acceptability by recognized specialists in the same field was met. We add that defendants' own evidence also shows the acceptability requirement was met. Included within various medical records introduced by defendant were the reports of Dr. Leiding, a clinical psychologist, and Dr. Maier who conducted a neurological examination. Dr. Leiding's report refers to a "low level of intellectual functioning". Dr. Maier's report refers to "apparent mental subnormality".
The psychologist was qualified to give his opinion as to the results of his tests. State v. Padilla, supra. Defendants assert, however, that he was not qualified to express an opinion that change in mental abilities was caused by the accident or that plaintiff was unemployable as a result of the accident. Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, 84 A.L.R.2d 1269 (1960) states: "From a number of given facts an expert witness may give his opinion as to what may or could have caused a certain result." Qualified as an expert in a speciality which includes the testing of intelligence, aptitudes and skills, the psychologist was qualified to express his opinion as to the cause of any change in plaintiff's mental ability and employment prospects.
We recognize that the trial court determines whether an expert has the necessary qualifications to testify, and that the trial court's determination will not be overturned unless an abuse of discretion is shown. State ex rel. State Hwy. Dept. v. Fox Trailer Court, 83 N.M. 178, 489 P.2d 1176 (1971). In this case there is nothing indicating the psychologist was not qualified to testify; there was an affirmative showing that he was qualified, and the trial court had admitted reports of other doctors going to the same propositions for which the psychologist's testimony was tendered.
At oral argument, defendants argued that the psychologist's testimony was properly excluded because his opinion was expressed in terms of "possibility" rather than "probability". No such contention was raised in the trial court. It will not be considered. Rule 11 of the Rules Governing Appeals.
The trial court abused its discretion in sustaining defendants' objections to the tendered testimony with this exception exclusion of the testimony concerning the possibility of brain damage was not error.
The judgment is reversed because of the wrongful exclusion of evidence pertaining to plaintiff's damages. The cause is remanded with instructions to grant plaintiff a new trial limited to the question of damages. Martin v. Darwin, 77 N.M. 200, 420 P.2d 782 (1966).
It is so ordered.
LOPEZ, J., concurs.
HERNANDEZ, J., dissenting.
HERNANDEZ, Judge (dissenting).
I respectfully dissent.
There is one factual matter not mentioned in the opinion which is necessary to an understanding of my disagreement with *93 the majority. The plaintiff was examined twice by a neurologist. The report of the first examination is dated June 18, 1971, and concludes in part: "The neurological examination is totally normal. ... I think that some of his complaints, other than the headache and neck pain, are unrelated to any fixed, demonstrable neurological lesion." The second report dated March 28, 1972, concluded in part: "The neurological examination is again totally normal, this includes gait and station, fields of vision and fundi. ... I think it is likely that Mr. Winder simply fits into the lower part of the `bell-shaped curve' regarding mental function. I feel that his apparent mental subnormality is a combination of heredity and possible cultural depravation."
In my opinion, the trial court was correct in ruling that Dr. Fishburn, the psychologist, was not qualified to answer the following question: "Further assume that during the collision that his head struck the interior of the vehicle he was in. Assuming all of these different facts and things that were done prior to the collision, and taking into consideration your experience in vocational rehabilitation and your education, and all of the other information you have available on Mr. Winder, do you have an opinion as to whether Mr. Winder's mental abilities were changed as a result of this collision." Considering that no causal connection between the accident and the plaintiff's mental condition after the accident had been established, asking Dr. Fishburn this question was, in effect, asking him to establish that connection. I believe that the trial court was correct when it ruled that he was not qualified to give such an opinion. Granted, Dr. Fishburn was eminently qualified to testify as to the plaintiff's mental ability, that is, whether he was sub-normal or abnormal. He was also qualified to give an opinion as to the mental and emotional ability to perform a given kind of work. However, to have allowed him to answer such a question was to allow him to speculate as to a connection. Just how speculative his answer would have been is pointed out by the reports of the neurologist, which were subsequently introduced into evidence.
I also disagree with the conclusion that only general objections were made by the defendant: to my mind, the following objections were sufficiently specific to be sustained:
"I object on the grounds that the testimony of this witness is irrelevent and immaterial, to this case. This case involves a claim for personal injuries, and this is not within the issues of the lawsuit. I further object on the grounds there's no proper foundation laid for the testimony of the witness as to the opinions given, either as to existence of any psychological disability or in terms of the causation of that disability."
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[Cite as Whitley v. Progressive Cas. Ins. Co., 2012-Ohio-329.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFFREY S. WHITLEY, : APPEAL NO. C-110157
TRIAL NO. A-0811959
Plaintiff-Appellant, :
O P I N I O N.
vs. :
PROGRESSIVE CASUALTY :
INSURANCE COMPANY,
:
and
:
PROGRESSIVE PREFERRED
INSURANCE COMPANY, :
Defendants-Appellees. :
:
___________________________
LORA N. WHITLEY, : APPEAL NO. C-110168
TRIAL NO. A-0811925
Plaintiff-Appellant, :
vs. :
PROGRESSIVE PREFERRED INSURANCE :
COMPANY,
:
Defendant-Appellee.
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Appeals Dismissed
Date of Judgment Entry on Appeal: February 1, 2012
Manley Burke, LPA, Emily Supinger, Daniel J. McCarthy, and James M. Cooney,
for Plaintiff-Appellant, Jeffrey S. Whitley,
OHIO FIRST DISTRICT COURT OF APPEALS
Thomas J. Ruwe, for Plaintiff-Appellant, Lora N. Whitley,
Freund, Freeze & Arnold and Jennifer K. Nordstrom, for Defendants-Appellees,
Progressive Casualty Insurance Company and Progressive Preferred Insurance
Company.
Note: We have removed this case from the accelerated calendar.
2
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiffs-appellants Jeffrey S. and Lora N. Whitley appeal the
summary judgment entered for defendants-appellees Progressive Preferred
Insurance Company and Progressive Casualty Insurance Company (“Progressive”)
on the issue of whether a Progressive insurance policy excluded uninsured motorist
benefits to Jeffrey and Lora where the tortfeasor was statutorily immune from
liability. Because we lack jurisdiction to hear these appeals, we sua sponte dismiss
them.
I. Background Facts
{¶2} In June 2005, a motor vehicle driven by an on-duty Hamilton County
deputy sheriff and a motorcycle driven by Jeffrey collided. Jeffrey’s spouse, Lora,
was a passenger on his motorcycle. The Whitleys were seriously injured. A court
determined that the deputy and the political subdivision that employed him were
immune from liability under R.C. Chapter 2744. See Whitley v. Progressive
Preferred Ins. Co., 1st Dist. Nos. C-090240 and C-090284, 2010-Ohio-356.
{¶3} In the case numbered A-0811959, Jeffrey filed suit against
Progressive, his insurer. He sought a declaration that he was entitled to uninsured
motorist benefits as a result of the collision with the deputy, and an award of
damages. In the case numbered A-0811925, Lora separately filed suit against
Progressive. She sought a declaration that she was entitled to medical payments
benefits and uninsured or underinsured motorist benefits under Jeffrey’s policy as a
result of the collision, and an award of damages. She alleged that the deputy and
Jeffrey were both tortfeasors.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} At the request of the parties, the trial court consolidated the two cases
under Civ.R. 42(A). The court ordered that filings be made only in the case
numbered A-0811925.
{¶5} Progressive moved for and was granted summary judgment in both
cases on the issue of whether the insurance policy excluded uninsured motorist
benefits where the tortfeasor was statutorily immune from liability. The trial court
cited Snyder v. Am. Family Ins. Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871
N.E.2d 574, in support of its decision. The order, however, did not resolve Lora’s
claims for medical payments coverage and uninsured or underinsured coverage
related to Jeffrey’s alleged negligence.
{¶6} These appeals followed. The Whitleys each challenge the summary
judgment in a single assignment of error for our review.
II. Dismissal
{¶7} We lack jurisdiction to reach the merits of these claims. Before a
lower court’s order can be reviewed on appeal, it must be final within the meaning of
R.C. 2505.02 and meet the requirements of Civ.R. 54(B), if applicable. Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In this case, the
order appealed is final as defined by R.C. 2505.02(B)(2).1 It affects substantial
rights—the Whitleys’ rights to uninsured motorist coverage and damages based on
the statutory immunity of a tortfeasor. See R.C. 2505.02(A)(1).2 And it was entered
in an action for declaratory judgment, which is a special proceeding. See Walburn v.
1 R.C. 2505.02(B)(2) provides that “[a]n order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial
right made in a special proceeding or upon a summary application in an action after judgment.”
2 R.C. 2505.02(A)(1) defines a “substantial right” as “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to
enforce or protect.”
4
OHIO FIRST DISTRICT COURT OF APPEALS
Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, ¶ 21, citing R.C.
2505.02(A)(2) and Gen. Acc.
{¶8} But Civ.R. 54(B) applies because the consolidated cases involve
multiple claims and multiple parties. See Whitaker v. Kear, 113 Ohio App.3d 611,
681 N.E.2d 973 (4th Dist.1996), citing Mezerkor v. Mezerkor, 70 Ohio St.3d 304,
308, 638 N.E.2d 1007 (1994); In re Consol. Mtge. Satisfaction Cases, 1st Dist. No. C-
000114 (Dec. 15, 2000).
{¶9} Generally, Civ.R. 54(B) requires that a trial court order that disposes
of fewer than all claims against all parties in a lawsuit involving multiple parties or
multiple claims include a determination that “there is no just reason for delay.”
Civ.R. 54(B). See Gen. Acc. at 23; but see Sullivan v. Anderson Twp., 122 Ohio St.3d
83, 2009-Ohio-1971, 909 N.E.2d 88 (“R.C. 2744.02(C) permits a political
subdivision to appeal a trial court order that denies it the benefit of an alleged
immunity from liability, even when the order makes no determination pursuant to
Civ.R. 54(B).”)
{¶10} Lora’s other claims for coverage remain pending, and the trial court
did not certify that no just cause for delay existed, as required by Civ.R. 54(B).
Therefore, Jeffrey and Lora have appealed from an order that is not final and
appealable, and their appeals must be dismissed for lack of jurisdiction. See Noble v.
Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989); Nationwide Mut. Ins. Co. v.
Pragotrade, Inc., 8th Dist. No. 94497, 2010-Ohio-5603, ¶ 20-22.
Appeals dismissed.
HENDON, P.J., CUNNINGHAM and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
5
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3849
___________
Alexej Herbert Sesterheim, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
John Ashcroft, Attorney General of *
the United States, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: August 5, 2004
Filed: August 5, 2004
___________
Before MELLOY, LAY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Alexej Sesterheim, a German citizen, petitions for review of an order of the
Board of Immigration Appeals affirming an Immigration Judge’s (IJ’s) denial of his
application for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Having carefully reviewed the record, we deny the petition.
We lack jurisdiction to review the IJ’s conclusion that Sesterheim’s asylum
application was untimely and that he did not show extraordinary circumstances
relating to his delay in seeking asylum. See 8 U.S.C. § 1158(a)(3); Ngure v.
Ashcroft, 367 F.3d 975, 988-89 (8th Cir. 2004). We agree with the IJ that Sesterheim
was not entitled to withholding of removal, because he failed to demonstrate a clear
probability that he would be persecuted based on one of the enumerated grounds if
removed to Germany. See 8 U.S.C. § 1231(b)(3); Tawm v. Ashcroft, 363 F.3d 740,
744 (8th Cir. 2004) (for withholding of removal, alien must present evidence that it
is more likely than not he would be persecuted if returned to country of removal). We
also uphold the IJ’s separate denial of CAT relief. See 8 C.F.R. § 208.16(c)(2) (2004)
(under CAT, applicant has burden to show it is more likely than not that he would be
tortured if removed to proposed country of return).
Accordingly, we deny Sesterheim’s petition for review.
______________________________
-2-
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10529
Summary Calendar
BAKER FARMS, INC.,
Plaintiff-Appellant,
versus
JEOFFREY HULSE; RONNY GALLAGHER; ANDREW SANSOM,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-315-C
--------------------
October 23, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Baker Farms, Inc. (“BFI”) appeals the district court’s
dismissal of its claim pursuant to FED. R. CIV. P. 12(b)(1) for
lack of subject matter jurisdiction. BFI argues that the
district court erred in failing to accept the allegations of its
complaint as true.
When a motion to dismiss for lack of subject matter
jurisdiction is based on the face of the complaint, the court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-10529
-2-
must accept the allegations in the complaint as true. Williamson
v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). However,
“conclusory assertions or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss.” Fernandez-Montes v. Allied Pilot’s Ass’n, 987 F.2d
278, 284 (5th Cir. 1993).
BFI’s argument is based on the district court’s finding that
the existence of certain easements was disputed. BFI asserted
that the easements came into legal existence by prescription in
favor of its leased land. This is a legal conclusion
masquerading as a factual conclusion and as such, the court was
not obliged to accept it as true. The district court did not err
in failing to take BFI’s legal conclusions as true facts.
BFI argues that the district court improperly determined
that the State of Texas is the real party in interest to this
suit, thus barring the suit under the Eleventh Amendment. The
State of Texas owns the land on which BFI alleges to have a
property interest in easements. BFI sued three State of Texas
officials rather than the State itself.
Where a plaintiff invokes federal jurisdiction to quiet
title to sovereign lands, the suit is against the State. Idaho
v. Coeur d’Alene Tribe, 521 U.S. 261, 296 (1997). A federal
court may not adjudicate a State’s interest in property without
the State’s consent. Ysleta Del Sur Pueblo v. Laney, 199 F.3d
281, 289 (5th Cir. 2000).
No. 02-10529
-3-
Since BFI sought to adjudicate limitations of the State of
Texas’ interest in its property, its suit was barred by the
Eleventh Amendment. The district court did not err in dismissing
the case, as it was without authority to hear it absent the State
of Texas’ consent. The order of the district court dismissing
the case is AFFIRMED.
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Electronically Filed
Supreme Court
SCWC-10-0000032
09-AUG-2012
10:47 AM
NO. SCWC-10-0000032
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JACQUELINE TAMMAN, Respondent/Plaintiff-Appellee,
vs.
SAMI TAMMAN, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-10-0000032; FC-D NO. 07-1-1120)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, and Acoba, JJ.,
Circuit Judge Kim, in place of McKenna, J., recused,
and Circuit Judge Del Rosario, assigned by reason of vacancy)
Petitioner/Defendant-Appellant’s application for writ
of certiorari filed on June 28, 2012, is hereby rejected.
DATED: Honolulu, Hawai'i, August 9, 2012.
Samuel P. King, Jr., for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Peter Van Name Esser for
respondent /s/ Simeon R. Acoba, Jr.
/s/ Glenn J. Kim
/s/ Dexter D. Del Rosario
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9 B.R. 228 (1981)
In re Willie (NMN) WILLIAMS d/b/a Williams Hauling Service, Lillie Mae Revely Williams, Debtors.
Bankruptcy No. 80-40035.
United States Bankruptcy Court, D. Kansas.
February 20, 1981.
*229 Jan Haley, Stanley E. Oyler, Ascough, Bausch & Eschmann, Topeka, Kan., for Savings Bond and Mortgage Co.
Dale V. Berning, Berning & Rupp, Topeka, Kan., for debtors.
Cary L. Standiferd, trustee.
MEMORANDUM OF DECISION
JAMES A. PUSATERI, Bankruptcy Judge.
On October 8, 1980 Savings Bond and Mortgage Company (Savings Bond), a creditor herein, filed a motion seeking abandonment of three motor vehicles and a camper top. Willie Williams and Lillie Mae Revely Williams (debtors) opposed the abandonment to Savings Bond. As only one of the vehicles remained property of the estate on October 9, 1980, the debtors having exempted the other two vehicles and having been discharged, the parties sought determination of the status of Savings Bond's liens. Savings Bond claims it has enforceable liens. The debtors claim that discharge has rendered the liens ineffective and unenforceable.
The creditor, Savings Bond and Mortgage Company, appears by Stanley E. Oyler and Jan Haley of Ascough, Bausch and Eschmann, Topeka, Kansas; the debtors appear by Dale Berning of Berning and Rupp, Topeka, Kansas. The trustee, though notified of the motion and hearing thereon did not file a response or participate in this proceeding.
The matter was argued to the Court and the last legal memorandum of the parties was filed on December 23, 1980.
Findings of Fact. The facts relevant to determination of the controversy are not disputed.
The debtors filed a voluntary petition for relief on January 15, 1980. They sought to have three motor vehicles exempted under the laws of the State of Kansas. One vehicle, a Mercury, was sought pursuant to K.S.A. § 60-2304(3) as a means of conveyance. Two vehicles, a Chevrolet truck and an International pickup, were sought pursuant to K.S.A. § 60-2304(5) as tools or equipment of trade. In addition to the three vehicles the debtors sought to exempt, the debtors' schedules list their ownership and possession of a Buick. The schedules further reflect that Savings Bond has a lien on all of the vehicles except the Chevrolet truck.
On January 28, 1980 all creditors were notified of the filing. The notice, in part, provided that pursuant to Local Rule 4004, any objection to the debtors' claim of exempt property must be filed within 15 days of the conclusion of the meeting of creditors provided for under 11 U.S.C. § 341. The local rule was adopted from the Suggested Interim Rules submitted by the Advisory Committee on Bankruptcy Rules of the Judicial Conference of the United States under date of August 15, 1979. The § 341 meeting was concluded on March 7, 1980. Though an objection was made to the debtors' requested exemptions, that objection, later denied, was not by Savings Bond and did not pertain to or affect the vehicles now in question. Two of the three vehicles on which Savings Bond claims a lien were automatically determined exempt, one remains property of the estate.
*230 On July 31, 1980 the debtors appeared before the Court for a discharge and reaffirmation hearing prescribed by 11 U.S.C. § 524. At that hearing a joint application for reaffirmation by the debtors and a creditor, Finance America Corp., was approved and the debtors were granted a discharge effective that date. No other reaffirmation agreements were submitted to the Court and none were negotiated between these parties. The mailing to creditors of a certificate notifying them of the discharge was not accomplished until October 8, 1980; however, creditors had been notified of the discharge/reaffirmation date as early as January 28, 1980.
On October 8, 1980 Savings Bond filed its motion for abandonment of the three vehicles and camper top. The camper top was not an asset of the debtors on the date of the orders for relief and thus Savings Bond's lien rights to it are not in issue in this proceeding. The Buick remains an asset of the estate though the trustee has served notice of intended abandonment at the close of the estate pursuant to 11 U.S.C. § 554(c). The International pickup and the Mercury were exempted to the debtors and remain in their possession.
Issue. Where reaffirmation has not been sought and approved, what effect does the debtors' discharge have on a creditor's pre-filing lien rights where property is in the debtor's possession through exemption or abandonment or in the trustee's possession prior to closing the estate.
Conclusions of Law. Savings Bond claims it may enforce its pre-filing in rem lien rights against property of the debtors subsequent to discharge. The creditor further claims that it may enforce its in rem lien rights against property of the estate at any time prior to closing of the estate.
The debtors take the position that subsequent to discharge, the debt owing Savings Bond is extinguished and thus no in personam or in rem right remains to be enforced.
In essence, Savings Bond claims that lien rights and the methods by which they may be exercised by creditors under the repealed Bankruptcy Act have not been changed by passage of the new Code. The debtors assert the new Code has in fact changed the method by which a creditor's lien rights may be exercised and preserved and that a creditor's failure to abide by these changed methods will result in loss of the right.
The Court, for reasons hereafter stated, determines that after discharge a creditor may not enforce pre-filing liens against the debtors or their property in the absence of an enforceable reaffirmation agreement. The Court further determines that discharge does not affect the creditor's right to enforce liens against property of the estate.
The debtors filed their petition and received orders for relief on January 15, 1980. At the moment of filing, all creditors having claims against the debtors were prohibited from taking any action against the debtors, their property or that of the estate as described in 11 U.S.C. § 362.
A creditor, pursuant to 77 U.S.C. § 101(9)(A), is defined as:
[An] entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor;
A claim, pursuant to 11 U.S.C. § 101(4)(A), is defined as:
[A] right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
This creditor and its claim fall within the definitions and are subject to the stay. The stay protection afforded debtors, unless otherwise determined by the Court, continues until their discharge is granted or denied. The protection extends to the debtors personally and to their property whether acquired by exemption or by abandonment. See § 362(a)(5) and (c); § 554; H.R. 95-595, 95th Cong. 1st Sess. (1977) 343, U.S.Code Cong. & Admin.News 1978, 5787.
At the inception of the proceeding all property interests of the debtors became property of the estate. § 541. The property *231 of the estate is administered by a trustee in every case. § 701. During the course of the proceeding and prior to discharge, the debtors may receive encumbered and unencumbered property from the estate through exemption and abandonment. § 522, § 544(a), Local Rule 4004. Subsequent to discharge, the debtors may receive unencumbered property having a de minimis value to the estate. § 554(c). The debtors and their property are protected by the § 362 stay until the case is dismissed or they are granted or denied discharge.
If the property received by the debtors is encumbered, a number of alternatives exist for the debtors and creditors prior to discharge. The debtors may attempt to avoid a creditor's lien pursuant to § 522(f). They may attempt to redeem as provided by § 722. They may attempt to reach agreement with one or more creditors to reaffirm as provided by § 524(c) and (d). They may merely await action by the creditors. The creditor, though prohibited from taking action outside the bankruptcy court against debtors or their property, may seek relief from the stay in order to proceed in state court with foreclosure or replevin. Alternatively, a creditor may, because of the expanded jurisdiction granted the bankruptcy court pursuant to 28 U.S.C. § 1471, proceed with those same actions in the bankruptcy court. The creditor may also seek a reaffirmation agreement from the debtors, abandonment pursuant to § 554(b), disposition of its collateral to it pursuant to § 725 or a combination of these alternatives.
In this instance, the debtors received property from the estate by exemption and hope to receive estate property in the future by abandonment at the close of the case. The debtors' expectations as to post discharge receipt of any secured property from the estate are to be unfulfilled. The trustee has filed a pleading indicating a desire to abandon property of the estate to the debtors pursuant to § 554(c). He is, however, pursuant to the duties imposed upon him by § 704 and § 725, required to dispose of fully encumbered property of the estate which remains in the estate at or near the close of the case to those parties in interest possessing valid liens in the property. The debtors have no interest whatsoever in the encumbered property of the estate. Receipt of such property after discharge would result in a windfall to them and constitute a probable breach of the trustee's fiduciary duty to creditors.
The debtors and the creditor did not enter into a reaffirmation agreement and the debtors have been discharged. The creditor did not seek reaffirmation or a return of its collateral through court proceeding prior to discharge.
Under these circumstances, the creditor's lien rights as to the debtors' property would survive discharge pursuant to § 14(f) of the now repealed Bankruptcy Act. Section 14(f) in part stated:
An order of discharge shall
* * * * * *
(2) enjoin all creditors whose debts are discharged from thereafter instituting or continuing any action or employing any process to collect such debts as personal liabilities of the bankrupt. (emphasis added)
A discharge merely prohibited in personam actions against the discharged bankrupt but did not protect his property. The lien of a creditor was not extinguished nor was the debt. One might arrive at the conclusion that the same result may be obtained under the Code, if one does not closely examine or discount sections 524 and 727, portions of the legislative history and the recited reasons and rationale underlying this amendatory legislation.
Section 506(d) of the present Code states:
To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless
(1) a party in interest has not requested that the court determine and allow or disallow such claim under section 502 of this title; or
(2) such claim was disallowed only under section 502(e) of this title.
*232 The legislative history of § 506 reported at H.R. 95-595, 95th Cong. 1st Sess. (1977) 357 states:
Subsection (d) permits liens to pass through the bankruptcy case unaffected.
Section 522 of the Code provides in subsection (c) that property exempted is still subject to a lien unless that lien is avoided. The legislative history reported at H.R. 95-595, supra, 362, recognizes the rule of Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004 (1886) wherein it was held that the mere fact that property is exempted does not extinguish an otherwise valid lien. 3 Collier on Bankruptcy, 15th Ed. § 522.27 indicates no change has been made.
Finally, Collier, supra, § 524.01, in commentary on § 524, states that only personal liability is discharged and that liens not avoided by the Code may be enforced notwithstanding discharge of the debtor. The Collier comments and the quoted sections of the Code seemingly echo the law as it existed under § 14(f) of the Act and appear to be a business as usual declaration for the Code. See In Re Coots, 4 B.R. 281, 6 B.C.D. 429 (Bkrtcy., S.D.Ohio, 1980). Thus, it appears that certain sections of title 11, some legislative history, a treatise and at least one decision would seem to favor the proposition that in instances such as the present one, creditors' in rem rights may be enforce against the debtors' property post discharge.
Opposition to the theory that in rem rights survive discharge is found in some general concepts of law, portions of the legislative history and sections 524 and 727 of the Code. Reading the Code as a whole, this Court determines that the apparent conflicts between sections thereof can only be resolved by finding that without reaffirmation, liens do not service discharge.
Since it is the enforceability of a lien which is in question, the definition of a lien or mortgage would seem important.
The word lien has been variously defined as being a hold or claim which one has upon property of another as security for a debt or charge, as a tie that binds property to a debt or claim for its satisfaction, as a right to possess and retain property until a charge attaching to it is paid or discharged, as a charge imposed upon specific property for performance of an act, and as being synonymous with a charge or encumbrance upon a thing. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955).
A lien is an incident of and inseparable from the debt which it secures. In absence of the debt there can be no lien. U.S. v. Phillips, 267 F.2d 374 (2nd Cir. 1959). A mortgage is security for a debt, a lien or encumbrance, security for performance of an obligation. Stark v. Morgan, 73 Kan. 453, 85 P. 567 (1906). The existence of the obligation to be secured is an essential element to a mortgage. Conway v. Alexander, 11 U.S. 217 (7 Cranch), 3 L.Ed. 321 (1812); Price v. 1st National Bank, 62 Kan. 735, 64 P. 637 (1901).
Section 727(a) of title 11 provides that a discharge shall be granted unless one or more of the ten enumerated reasons recited therein are found to be present. Section 727(b) provides that except as provided in § 523, discharges under subsection (a) discharge the debtor from all debts that arose before the date of the order for relief in chapter 7. Section 524(a) provides in pertinent part:
(a) A discharge in a case under this title
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, or 1328 of this title, whether or not discharge of such debt is waived;
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived; and (emphasis added)
As earlier set forth, the Collier reference to this section states that only personal liability is discharged. The pertinent Collier section *233 does not mention the clause emphasized above and thus does not explain or rectify the commentator's conclusion which is in apparent conflict with the plain meaning of that clause. It should be noted that the emphasized clause was not present in § 14 of the Bankruptcy Act. The legislative history of the Code section as reported in H.R.Rep., supra, 366, U.S.Code Cong. & Admin.News 1978, 6321 states:
The change is consonant with the new policy forbidding binding reaffirmation agreements under proposed 11 U.S.C. 524(d), and is intended to insure that once a debt is discharged, the debtor will not be pressured in any way to repay it. In effect, the discharge extinguishes the debt, and creditors may not attempt to avoid that. (emphasis added)
Referring again to the legislative history, H.R.Rep., supra, 117, 167-173, 365-366, it is stated that the reason for placing reaffirmation agreements solely under the aegis of the court was to prevent the unsupervised reaffirmation and its attendant general unfairness to debtors. The pressure, unequal bargaining position and acumen concerning commercial transactions and all the other circumstances working against the debtors in nonsupervised reaffirmation were to be abolished under § 524(c) and (d). The debtors were thus to have a better chance at a fresh start.
A reaffirmation agreement admittedly was not entered in this case. Section 524(c) states:
(c) An agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to any extent enforceable under applicable nonbankruptcy law, whether or not discharge of such debt is waived, only if
(1) such agreement was made before the granting of the discharge under section 727, 1141, or 1328 of this title;
(2) the debtor has not rescinded such agreement within 30 days after such agreement becomes enforceable;
(3) the provisions of subsection (d) of this section have been complied with; and
(4) in a case concerning an individual, to the extent that such debt is a consumer debt that is not secured by real property of the debtor, the court approves such agreement as
(A)(i) not imposing an undue hardship on the debtor or a dependent of the debtor; and
(ii) in the best interest of the debtor; or
(B)(i) entered into in good faith; and
(ii) in settlement of litigation under section 523 of this title, or providing for redemption under section 722 of this title.
From the foregoing, it is seen that debtors may request and be granted exemption of certain property. § 522 and Local Rule 4004. During the course of administration of the estate, certain property of the estate may be abandoned to debtors by the trustee. § 554(a). This property, prior to discharge, is subject to valid pre-filing liens or mortgages in accordance with § 506 and the rule announced in Long v. Bullard, supra. This is not to say, however, that subsequent events during the term of the proceeding may not change or abrogate the efficacy of said rights and interests.
Creditors have the ability during the course of the case to seek relief from the stay and bring actions to foreclose or replevin property in the possession of debtors through exemption. Before property is abandoned pursuant to § 554(a) by the trustee to debtors, creditors may seek specific abandonment under § 554(b). Should creditors have neglected to do this, relief from the stay, replevin or foreclosure are available against the debtors' property until discharge occurs. These rights and possibly others are available to creditors to enable them to protect their interests. Additionally, reaffirmation by mutual agreement of the parties may be entered prior to discharge. A forum, the bankruptcy court, is provided for all of this and ample opportunity for hearing is afforded to the parties.
The Code has imposed certain requirements on creditors for retention of liens *234 after discharge and grants specific rights for recovery of property during a proceeding which heretofore did not exist under the Act. This is not an unusual concept. Both the Uniform Commercial Code (K.S.A. § 84-1-101 et seq.) and the Uniform Consumer Credit Code (K.S.A. § 16a-1-101 et seq.) impose duties upon creditors before security interests may be perfected and property may be recovered. The Probate Code, at K.S.A. § 59-2239, imposes certain limits upon the time and place claims may be brought against a decedent's estate. Should creditors fail to take advantage of the opportunities afforded for protection of security interests and claims, the right to assert those interests or claims is lost. These statutes do not strip creditors of property rights, they merely modify the method and time frame within which the rights must be exercised much as would a change in a statute of limitation. See Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885); Cutler v. U.S., 202 Ct.Cl. 221, cert. den. 414 U.S. 1065, 94 S.Ct. 572, 38 L.Ed.2d 470 (1973). The loss of a property right in the existent circumstances is a direct result of creditor inaction constituting a waiver or forfeiture of that right and not a direct result of the legislative enactment of various sections of the Code.
If the debtors receive their discharge without reaffirmation and without creditors utilizing any of their rights to protect pre-filing liens, the discharge extinguishes the debt underlying the liens. § 524(a)(1) and (2), § 524(c) and § 727(b). Unquestionably, an ordinary note evidencing the debt underlying a lien or mortgage is a dischargeable obligation unless determined otherwise pursuant to § 523(a) or § 727(a)(1-10). In Re Grimes, 3 CBC2d 332 (D.Kan.1980); In the Matter of Coots, supra. If the underlying debt is extinguished an enforceable lien cannot exist. See U.S. v. Phillips, Conway v. Alexander, Price v. 1st National Bank, supra.
A creditor attempting to collect a discharged debt, either from debtors or their property, is in violation of § 524(a)(2). See In Re Warren, 3 CBC2d 326 (N.D.Ala.,1980). The debt no longer exists and thus the lien ceases to exist. As the document underlying the lien (the note) has no legal efficacy, no default could occur to trigger lien enforcement for no payment liability exists in the eyes of the law. This result arises from the addition of the language or from the property of the debtors which was not present under § 14 of the Act. The new language renders decisions under § 14 inapplicable to this situation. The result is also counselled by the requirement of reaffirmation under court auspices before a pre-filing lien is enforceable against the debtors or their property in a post discharge proceeding, regardless of forum.
If the lien survives discharge as something enforceable against the debtors' property without benefit of the extinguished underlying debt, there would be no reason for reaffirmation. No impetus would exist for the debtors to reaffirm and thus create personal liability unless they faced imminent loss of their property through foreclosure and replevin. In many instances, the family home and auto payments are current or near current and thus the imminent danger of loss does not exist. Under these circumstances, even if the debtors wished to reaffirm how could a court charged under § 524(c)(4) with finding reaffirmation to be in the debtors best interest make such a finding?
If the lien survives discharge without reaffirmation and default somehow occurs in this apparent non-personal obligation running between the res and the creditor, to whom is the notice of default to issue since the debtors, the property owners, owe no legally enforceable obligation to the creditor? Does the notice of default accelerate the discharged note and if so against whom? With whom does the creditor negotiate for retention of the property? Against whom is the replevin or foreclosure brought? Who has rights of redemption? Is the redemption for actual value or for the amount bid at judicial sale and by whom is it payable? If the answer to these questions is the debtors, are not the above actions taken in violation of the injunction set forth in § 524? Can it be seriously contended that under this interpretation the debtors have not been placed in the same disadvantageous position that caused *235 enactment of § 524(a)(2), (c) and (d)? The former debtors and creditor would be meeting in an attempt to come to an agreement of terms and conditions whereby the former debtors could retain their property. The agreement will, according to § 524, be unenforceable in court and be violative of the § 524 injunction and yet in most instances it will be complied with by the debtors. This is the reason the law was changed, to abolish this illusory fresh start concept found to exist under the Act. See D. Cowans, Bankruptcy Law and Practice, § 5.7 pg. 162, 163 (Interim Ed. 1980). Under the Code, these questions should not arise for it is intended that in situations such as this an enforceable lien against the debtors or their property does not survive discharge.
Summary. The debtors may receive property from the estate by exemption or by abandonment before discharge. The debtors and creditors have from the date the proceeding is initiated by filing for orders for relief until discharge to negotiate for the debtors' retention of encumbered property through reaffirmation or redemption. Should either of these alternatives be unavailing, the creditor may obtain its collateral through foreclosure, replevin, approved repossession or other available relief. The refusal of debtors to reaffirm or the debtors inability to redeem would allow a creditor to deem itself insecure and constitute a basis for replevin, foreclosure, repossession, etc. for in the absence of reaffirmation or redemption the creditor will lose its lien upon discharge. In practice, creditors currently file complaints seeking alternative relief. Commonly such a complaint may offer reaffirmation or redemption and request adequate protection during the interim period till discharge through a request for contract payment. These payments would be liquidated damages should reaffirmation not be reached by the parties, allowed by the Court or rescinded pursuant to § 524(c)(2). As an alternative, the complaint may seek relief from the stay and foreclosure, replevin or other appropriate relief. Such a complaint protects the creditor's interest while leaving all options open to the debtors for retention of their property.
The debtors are ensured a fresh start as all pre-filing debt agreements to be enforceable against either them or their property must be approved if a consumer debt or acknowledged if a real property obligation and their options and responsibilities explained to them by the Court at the discharge/reaffirmation hearing. The diligent creditor is ensured of a binding post-discharge agreement with continued personal liability of the debtors and a lien in the property, both of which it received under the parties' pre-filing agreement, or return to it of the property by order of the Court. The creditor choosing not to exercise its rights, waives or forfeits them.
Property remaining in the estate may be sought by the creditor at any time under the specific abandonment provision of § 554(b). If a creditor wishes to wait until the estate nears closing, encumbered property should be transferred to the secured creditor by the trustee pursuant to § 725 as only unencumbered property of negligible value to the estate should be abandoned to the debtors pursuant to § 554(c).
The foregoing constitutes Findings of Fact and Conclusions of Law under Bankruptcy Rule 752 and Rule 52(a) of the Federal Rules of Civil Procedure.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-4437
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anton Alexander Martynenko
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: February 12, 2018
Filed: April 3, 2018
[Unpublished]
____________
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
____________
PER CURIAM.
Anton Alexander Martynenko pled guilty to production of child pornography,
18 U.S.C. § 2251(a), (e) (Count 1), distribution of child pornography, 18 U.S.C.
§ 2252(a)(2), (b)(1) (Count 2), and advertisement of child pornography, 18 U.S.C.
§ 2251(d)(2)(B), (e) (Count 3). The district court1 sentenced Martynenko to 456
months imprisonment—360 months on Counts 1 and 3 to run concurrently and a
consecutive 120 months on Count 2, followed by a 24 month reduction in the
sentence for reasons not relevant to this appeal. Martynenko appeals his sentence.
For the reasons explained below, we affirm.
First, Martynenko argues the district court failed to explain his sentence
adequately. A district court "must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair sentencing."
Gall v. United States, 552 U.S. 38, 50 (2007). It must be clear from the record that
the sentencing court actually considered the factors listed in 18 U.S.C. § 3553, but the
district court need not elaborate on each factor. See United States v. Hernandez, 518
F.3d 613, 616 (8th Cir. 2008). Failure to explain a sentence adequately is a
procedural error reviewed for plain error when, as here, there was no objection below.
United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016). Under plain
error review, the appellant must show "that a more detailed explanation would have
resulted in a lighter sentence." Id. Here, Martynenko does not even attempt to
demonstrate that he was prejudiced by the district court's limited discussion of the
reasons for his sentence. Thus, even assuming arguendo that the district court's
explanation was inadequate, Martynenko has shown no plain error.
Second, Martynenko argues the sentence is substantively unreasonable because
the district court gave too much weight to uncharged conduct and the sentence is not
"necessary." We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Zayas, 758 F.3d 986, 990 (8th Cir. 2014). "A district
court abuses its discretion when it (1) fails to consider a relevant factor that should
have received significant weight; (2) gives significant weight to an improper or
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
-2-
irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment." United States v. Borromeo, 657 F.3d 754,
756 (8th Cir. 2011) (citation omitted). When a defendant fails to object to
consideration of an improper factor at sentencing, we review for plain error. United
States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009). If a defendant does not object
to the facts in a presentence report, "the court may accept the facts as true and rely on
the unobjected-to facts" at sentencing. United States v. Douglas, 646 F.3d 1134,
1137 (8th Cir. 2011).
Here, because Martynenko did not object to the facts in the presentence report
that he now complains were irrelevant and unproven, it was not improper for the
district court to rely on them when analyzing the § 3553 factors. Id. Martynenko has
not demonstrated that consideration of those facts gave rise to an error that is plain,
that affected his substantial rights, and that "seriously affects the fairness, integrity
or public reputation of judicial proceedings." O'Connor, 567 F.3d at 397 (citation
omitted). In arguing that his sentence is not "necessary," Martynenko claims that the
United States Sentencing Guidelines treat child pornography offenses too harshly and
that it was an abuse of discretion to deny his request for a sentence below the
guideline range. Given the severity of Martynenko's conduct, we conclude that it was
not an abuse of discretion for the district court to reject his policy disagreements with
the guidelines and sentence him to 38 years—a sentence at the lower end of his
guideline range.
Third, Martynenko argues his sentence violates the Eighth Amendment's
prohibition of cruel and unusual punishment. "We review Eighth Amendment
sentencing challenges de novo." United States v. Meeks, 756 F.3d 1115, 1120 (8th
Cir. 2014). We first compare Martynenko's crime with his sentence; an Eighth
Amendment violation can be found only when this comparison "leads to an inference
of gross disproportionality." United States v. Johnson, 944 F.2d 396, 409 (8th Cir.
1991). In only "an extremely rare case" will a noncapital sentence be "so
-3-
disproportionate to the underlying crime that [it] runs afoul of the Eighth
Amendment." Meeks, 756 F.3d at 1120 (quoting United States v. Baker, 415 F.3d
880, 882 (8th Cir. 2005) (second quotation)). Martynenko engaged in a four year
scheme to entice dozens of minor males to send him nude photographs on social
media, then to distribute those photographs to their acquaintances, blackmailing them
to send more. The victim impact statements demonstrate the devastating effect of the
crimes on their young lives, and two of his victims later committed suicide. The
presentence report describes uncharged relevant conduct to which Martynenko did
not object, including blackmailing minor victims into engaging in coerced sexual
acts. On these facts, a 38 year sentence does not give rise to an inference of gross
disproportionality, and we thus reject Martynenko's Eighth Amendment challenge.
The judgment is affirmed.
______________________________
-4-
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Electronically Filed
Intermediate Court of Appeals
CAAP-14-0001364
17-APR-2017
01:25 PM
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309 So.2d 192 (1975)
Thomas V. McDonald and Eunlce R. McDonald, Appellants,
v.
J.D. WINGARD, Appellee.
No. V-136.
District Court of Appeal of Florida, First District.
March 14, 1975.
Leo A. Thomas, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellants.
Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
BOYER, Judge.
This appeal emanates from a final summary judgment in favor of the defendant in a "slip and fall" case.
*193 The "statement of facts" contained in appellee's brief states that J.D. Wingard (appellee) purchased a residence in Crestview, Florida, to which he had repairs made by one Churchwell. The repairs included painting of a concrete front porch with a paint especially designed to be used on poured concrete surfaces. Subsequent to the repairs, the dwelling was rented to Mattie Davis (tenant). Thomas V. McDonald (one of the appellants) was a door-to-door salesman who had called on Mattie Davis at the subject premises on many previous occasions. On the day of his injury, it was raining and he could see that the concrete front porch was wet. As he walked across it, his foot slipped and he was injured. Based upon the depositions of Mr. Wingard, Mr. Churchwell and Mr. McDonald the trial court found that there was no genuine issue as to any material fact in regard to the liability of the landlord to the tenant's invitee, and summary judgment was thereupon entered.
In appellants' reply brief it is stated that "we agree with the case and facts as stated by appellee", therefore it appears that the facts are not in dispute. However, elsewhere in the record we find that the landlord (Wingard) concedes that during the period of rental to the tenant the landlord was responsible for repairs to the subject premises. Further, it appears that the tenant had advised her landlord that the porch was very slippery when wet during rainy weather.
The first issue to be resolved by us is whether the landlord by virtue of his rental of the entire premises to the tenant thereby absolved himself from any liability to persons who might thereafter be injured on the premises as a result of defects thereat. (The record reveals an affidavit, the allegations of which are sufficient to raise a factual issue as to whether the premises were in fact defective. It was therefore necessary, of course, in passing on the motion for summary judgment to assume, for the purpose of that motion, that the premises were so defective.)
In Simms v. Kennedy, Sup.Ct.Fla. 1917, 74 Fla. 411, 76 So. 739, the Supreme Court of Florida, considering an appeal in a personal injury action arising out of injuries sustained by a pedestrian on a public side-walk who was injured by the falling of a part of an awning overhanging the side-walk but attached to an abutting building, held that a tenant or occupant of premises having the entire control thereof is, so far as third persons are concerned, the owner and that prima facie where the tenant is in entire possession, occupancy and control of the premises and the premises were in good condition at the commencement of the landlord-tenant relationship the landlord is not liable in damages for injuries to third persons caused by defects in the premises. The Court further stated however, that a landlord may be liable to third persons for injuries caused by defects in demised premises during the term of the demise, when the defect or condition of the premises at the commencement of the relationship was a violation of law, or was in the nature of a nuisance existing or incipient because of negligent construction or otherwise, or when the landlord has entire or partial control of the premises, or is required by law or undertakes to keep or assist in keeping the premises in repair, or where the landlord's negligence or participation is a proximate cause of the injury.
In Brooks v. Peters, 1946, 157 Fla. 141, 25 So.2d 205, an oft cited case, a tenant was injured by an explosion of gas which was used to heat water in an apartment building in which was located the apartment rented by the tenant from the landlord. There the Supreme Court, citing Simms v. Kennedy, supra (and other cases) recited "It is not disputed that the supervision and control of both the cubbyhole and the heating equipment * * * passed from the defendant Peters * * * to the plaintiffs and continued in them until the explosion and injury * * * ". Basing its *194 affirmance of a final judgment on demurrer for the defendant squarely upon control by the tenant the Court said:
"It is established law that when a landlord delivers to the tenant possession and control of the demised premises, including the plumbing, drains, and appliances for heating, lighting, and power, the landlord is not liable for an injury to the property or person of the tenant or those on the premises in the right of the tenant, although such injuries are attributable to defects in such apparatus, appliances or fixtures. Thus a tenant may not hold a landlord liable for injuries caused by explosion of plumbing, or heating apparatus on premises, the possession and control of which have been surrendered to him in the absence of fraud or concealment. 32 Am.Jur. 624, 625, § 746.
"The landlord's liability is based on his right of control over the appliances and he is not liable for injuries from defects in appliances located on the leased premises if he does not reserve control thereof, and accordingly it has been held that he is not liable for defects in water pipes in an apartment when the only purpose of such pipes is to supply and distribute water for the apartment. On the other hand, he is liable for defects in pipes on the leased premises if he retains control thereof. Tiffany on Landlord and Tenant, Vol. 1, pages 644, 645, par. 92.
"Where the landlord surrenders possession and control of the leased premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, including the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures. See Mansell v. Hands, 235 Mass. 253, 126 N.E. 391, 13 A.L.R. 835, and annotations; Gobrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858, and annotations." (25 So.2d at pages 206 and 207)
Control, therefore, appears to be an all important factor. (See Nussbaum v. Sovereign Hotel Corp., Sup.Ct.Fla. 1954, 72 So.2d 814)
In Propper v. Kesner, Sup.Ct.Fla. 1958, 104 So.2d 1, our Supreme Court distinguished, but did not recede from, Brooks v. Peters, supra, observing that "in that case there was no notice to the landlord of any possible defective condition of the heater, no covenant to repair, and no reservation by the landlord of any control over the appliance." In Propper v. Kesner, the Supreme Court reversed a judgment entered on a directed verdict for the landlord reciting that there the landlord had specifically instructed a tenant not to make repairs and the injury to the tenant occurred after the tenant had reported the defective condition to the landlord and the landlord had specifically directed the tenant to take the action which she did.
This Court, in Wiley v. Dow, Fla.App. 1st 1958, 107 So.2d 166, citing Brooks v. Peters, supra, and other authorities, acknowledged the general principles of law hereinabove noted, but reversed the judgment dismissing a complaint filed by an injured tenant against a landlord, finding that the allegations of the complaint sufficiently alleged an agreement that the landlord would make necessary repairs on the demised premises. (See also Wallace v. Schrier, Fla.App.2d 1958, 107 So.2d 754, where our sister court of the Second District held a landlord liable for injuries to the wife of a tenant, who resided with her husband in the demised premises, for injuries sustained as a result of a defect in the premises which the landlord had agreed to repair although the leased premises were in the exclusive possession of the tenant.)
We have carefully read the numerous other cases cited by the parties, including Zubowicz v. Warnock, Fla.App.2nd 1963, 149 So.2d 890, Diaz v. Hudson, Fla.App. *195 1st 1966, 191 So.2d 277 and Perlman v. Kraemer, Fla.App.3rd 1958, 104 So.2d 609, but we do not find those cases helpful in resolving the issue here under consideration.
In the case sub judice the agreed facts support the conclusion that although possession of the entire premises passed from the landlord to the tenant, the landlord retained control of the premises insofar as repairs were required and the landlord had actual notice from the tenant of the alleged dangerous condition of the porch when wet, therefore the landlord was not, by virtue of the tenancy ipso facto absolved from responsibility and liability. Whether or not the porch was in fact dangerous and in need of repair by the application of some substance or material over the paint or on the floor are issues of fact which could not be resolved in the case sub judice on summary judgment.
Having determined that the landlord, by retention of control as to repairs was not absolved per se from liability by virtue of delivery of possession of the subject premises to the tenant, we must now determine whether, under the facts appearing sub judice, the landlord (appellee) could be legally held liable to appellant, who was not appellee's tenant, but rather a third person on the premises.
In Wallace v. Schrier, supra, as above noted, the injured party was the wife of the tenant, not the tenant himself. There the Court held that the landlord could be held liable, under the facts there recited, for the wife's injuries.
In Wiley v. Dow, supra, although the plaintiffs were the tenants themselves this Court cited with approval Section 357 of the Restatement of the Law of Torts, Negligence, as having been approved by the Supreme Court of Florida in Propper v. Kesner, supra, as follows:
"`A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if
(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented.'" (107 So.2d at page 170)
While the verbiage of the restatement as above quoted is simple enough, its application is complex. Our Supreme Court has explicitly rejected the contention that determination of liability in such cases may simply be rested upon whether the landowner's actions were reasonable in light of all of the factual circumstances in the case. (Wood v. Camp, Sup.Ct.Fla. 1973, 284 So.2d 691) It is therefore necessary to determine, as a condition precedent to imposition of liability of a landowner, the relationship between the landowner and the injured party. The Florida Supreme Court has carefully and consistently (though not so clearly) recognized a distinction between trespassers, licensees and invitees and the corresponding duty of care owed to each. (See Post v. Lunney, Sup.Ct.Fla. 1972, 261 So.2d 146 and Wood v. Camp, supra)
In the last cited case the writer of the opinion said:
"We resolve our dilemma in a troublesome area by concluding, and we so hold, that the class of invitees now under the present definition in Lunney as entitled to reasonable care is expanded to include those who are `licensees by invitation' of the property owner, either by express or reasonably implied invitation. We thereby eliminate the distinction between commercial (business or public) visitors and social guests upon the premises, applying to both the single standard of reasonable care under the circumstances. In doing so, we continue the category of licensees who are uninvited, that is, persons *196 who choose to come upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances. We realize this very limited category seems to overlap with the trespasser but there can be narrow distinctions and we justify this narrow class of `uninvited licensee' on such basis. Also retained is the separate category and present limited duty toward trespassers. The requirement continues of reasonable care toward all business or public invitees as at present in accordance with Lunney.
"The presence upon the premises, reasonably to be expected by the owner, his family, agents or servants, of the person who is injured; the person's purpose for being upon the premises; and the location where he was at the time of the injury, are factors to be weighed together with all other evidence bearing on the duty allegedly owed and bearing on what constitutes `reasonable care in the circumstances.'" (284 So.2d at page 695)
Appellee relies heavily upon the opinion of this Court in Hauben v. Melton, Fla. App. 1st 1972, 267 So.2d 16. However that case is not controlling for two reasons. First, there the defect was not known prior to the accident. Second, the distinction between a licensee and invitee there recognized has been since modified in Wood v. Camp, supra. In the latter case the Supreme Court said "We expressly recede from our prior pronouncements contrary to the views herein set forth", there citing Hauben v. Melton, supra, and other cases. It appears therefore that insofar as we applied the law applicable to licensees as it existed at the time we decided Hauben v. Melton, our opinion there has been expressly superseded by the holding of the Supreme Court in Wood v. Camp, supra.
In view of the agreed fact that appellant, a door-to-door salesman, was a frequent visitor on the premises "reasonably to be expected by the owner" and tenant, not present solely for his own convenience and not without invitation, either expressed or implied, it appears that under the holding of Wood v. Camp, supra, the appellant enjoyed such relationship with appellee's tenant as to invoke the rule of "reasonable care in the circumstances".
Where, as here, the injured party bore such a relationship to the tenant as to require "reasonable care in the circumstances" that responsibility also rests upon the landlord, who retained partial control, was responsible for repairs, and was on actual notice of the alleged defective condition which allegedly proximately caused the accident and resulting injuries.
Accordingly, the final summary judgment appealed is reversed and this case is remanded for further proceedings consistent herewith.
We here only hold that application of the principles here announced requires reversal of the summary final judgment and necessitates further proceedings consistent herewith. We do not here hold that as a matter of law the plaintiff below, appellant here, is entitled to recovery. The defense of assumption of risk has been explicitly recognized in this type of case by our Supreme Court (Brooks v. Peters, supra; Nussbaum v. Sovereign Hotel Corp., supra, and Propper v. Kesner, supra) and under the law as it then existed contributory negligence was also recognized as an appropriate defense. (Nussbaum v. Sovereign Hotel Corp., supra) In Propper v. Kesner the Supreme Court held that issues relative to assumption of risk should have been submitted to the jury for resolution. In Hoffman v. Jones, Sup.Ct.Fla. 1973, 280 So.2d 431, by which comparative negligence was established as the proper principle to be applied in negligence cases, superseding and expressly "repealing" the contributory negligence doctrine as a defense, the Court expressly refused to pass upon the propriety of assumption of risk as a defense, thereby leaving that defense intact until further consideration. It is apparent *197 therefore that upon remand further proceedings in the case sub judice should be in accordance with the holdings of Hoffman v. Jones, supra.
McCORD, J., specially concurs.
RAWLS, C.J., dissents.
RAWLS, Chief Judge (dissenting).
See Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946); and Diaz v. Hudson, 191 So.2d 277 (1 Fla.App. 1966).
McCORD, Judge, (specially concurring).
The distinguishing feature between the case sub judice and Brooks v. Peters, 157 Fla. 141, 25 So.2d 205; and Diaz v. Hudson, Fla.App. (1st), 191 So.2d 277, is that here there is evidence that appellants (the landlords) had assumed the obligation of making repairs during the tenancy and had been warned by the tenant of the alleged dangerous condition of the porch floor. If such evidence is true, the landlord could not be said to have surrendered control of the porch floor to the tenant. The opinion in Brooks does not indicate that such was the case there and the ruling in Diaz was without opinion.
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421 S.E.2d 215 (1992)
Tammy Renee LAYNE
v.
COMMONWEALTH of Virginia.
Record No. 2011-91-3.
Court of Appeals of Virginia.
September 1, 1992.
*216 Thomas L. Phillips, Jr. (Phillips, Phillips, Phillips & Morrison, on brief), for appellant.
Mary Sue Terry, Atty. Gen., Leah A. Darron, Asst. Atty. Gen., on brief, for appellee. Appellee submitting on brief.
Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.
COLEMAN, Judge.
Tammy Renee Layne was convicted in a bench trial for driving while intoxicated in violation of Code § 18.2-266. She contends that the arresting officer illegally stopped and detained her; therefore, she argues that the evidence of her driving while intoxicated was illegally obtained and should have been suppressed. Specifically, she asserts that the officer lacked a reasonable and articulable suspicion that she was engaged in criminal activity when he stopped her.
We uphold the ruling of the trial court. When the officer stopped Layne, based upon information he had received and facts observed, he had a reasonable, articulable basis for making a brief investigative Terry stop to inquire of Layne's identity and whether her purpose in being in the area was criminal in nature. Thus, since the evidence of Layne's intoxication was obtained as the result of a lawful investigative detention, we affirm her conviction.
"`[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information.'" Williams v. Commonwealth, 4 Va.App. 53, 64, 354 S.E.2d 79, 85 (1987) (emphasis added) (quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985)). It is sufficient to justify an investigative detention if the officer reasonably suspects that the person "is committing, has committed or is about to commit" a crime. Simmons v. Commonwealth, 217 Va. 552, 557, 231 S.E.2d 218, 221-22 (1977). An investigative detention to detect or prevent incipient criminal activity is, when supported by the officer's reasonable and articulable suspicion that criminal activity may be afoot, consonant with the fourth amendment protections against unreasonable seizures. See Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968); Landsdown v. Commonwealth, 226 Va. 204, 210, 308 S.E.2d 106, 110 (1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984). For an investigative detention to be valid, "the detaining officers must have a particularized and objective basis [under the totality of the circumstances] for suspecting the particular person stopped of criminal activity." Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982).
Officer T.L. Williams, the arresting officer, was dispatched at approximately 4:30 a.m. to a Stafford Street address in Lynchburg, Virginia, to investigate a reported assault and battery. At the address, he spoke with Sherry Lynn Falls. She informed him that Tammy Renee Layne had attacked her approximately fifteen minutes earlier in Amherst County. Falls provided Officer Williams with a physical description of Layne. She also told the officer that *217 Layne had left her automobile parked in front of Falls' residence. Falls had reported the incident because, apparently, she was concerned that when Layne returned to her vehicle, further trouble might ensue. Shortly thereafter, Officer Williams observed Layne get into her vehicle in front of Falls' residence and drive away. He followed her, activated his lights, and stopped Layne's vehicle. Officer Williams approached the vehicle, asked Layne to identify herself, and asked for her license and registration. When she complied with his requests, Officer Williams detected the strong odor of alcohol on her breath. After administering general field sobriety tests to Layne, which she performed poorly, Williams advised Layne of her Miranda rights. He asked whether she had been drinking. Layne responded that she had consumed two beers. Williams administered a breath analyzer test to her and thereafter arrested her at 5:15 a.m. for driving while intoxicated.
When Officer Williams initially stopped Layne, he had a reasonable and articulable suspicion that she had only a few minutes earlier committed a criminal offense, namely an assault and battery in Amherst County upon Sherry Lynn Falls. Layne contends that, because Officer Williams lacked statutory authority pursuant to Code §§ 19.2-81 and 19.2-250, to arrest her for a misdemeanor committed in another jurisdiction and not in his presence, he could not constitutionally detain her to investigate the alleged offense. Assuming that Officer Williams lacked the statutory authority to have arrested Layne without a warrant for a misdemeanor committed in another jurisdiction, Layne's argument nevertheless fails. The detention was not made for the sole purpose of investigating the crime which allegedly had occurred, but was made for the purpose of determining whether criminal activity was afoot. "It would have been poor police work ... for an [experienced] officer [with a report that Layne had recently assaulted Falls] to have failed to investigate this behavior further," Terry, 392 U.S. at 23, 88 S.Ct. at 1881, and possibly to have allowed Layne temporarily to leave, only to return and assault or seriously injure Falls. As a peace officer, Williams had a duty, based on a report that Layne had recently breached the peace, to investigate and determine whether she harbored criminal intentions. An officer may, consistent with the fourth amendment, detain a person, based on a reasonable and articulable suspicion, to investigate past criminal activity, see Hayes, 470 U.S. at 816, 105 S.Ct. at 1647, or to prevent a crime from being committed. Terry, 392 U.S. at 23, 88 S.Ct. at 1881. It is of no moment that Layne entered her car and drove away from Falls' residence. Officer Williams could have reasonably believed, and apparently did, based on his testimony, that Layne was leaving the area because she was aware of his presence and that she may have intended to absent herself temporarily from the area, only to return and resume the fracas after he left. Officer Williams' belief is made all the more reasonable by his observations that, after Layne drove away, she made two left turns which placed her on a street from which she could easily have returned to Falls' residence.
The fact that Officer Williams may not have had the authority to have arrested Layne for her alleged misdemeanor assault upon Falls in another jurisdiction does not make his stop of her unlawful. "Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime." Terry, 392 U.S. at 13, 88 S.Ct. at 1876 (footnote omitted). "Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests." Id. at 13, 88 S.Ct. at 1875. Some police-citizen encounters are so innocuous and minimally intrusive that the fourth amendment is not even implicated. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (officer may approach an individual in a public place, put questions to him or her, and identify himself or herself as an officer without implicating the fourth amendment). "The Supreme Court of the United States has identified two types of seizures of the person protected by the Fourth Amendment *218 arrest and investigatory stop." Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992). Not every investigative detention, in order to be lawful and comply with the fourth amendment, requires that the officer have the power or authority to arrest for criminal conduct that may have occurred. As to an investigatory stop, in the interest of "effective crime prevention ... a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior." Terry, 392 U.S. at 22, 88 S.Ct. at 1880 (emphasis added). Reported recent crimes may, as was the case here, be the basis for a police officer's reasonably suspecting that possibly criminal activity may be imminent. An officer need not possess the statutory authority to effect an arrest for prior criminal conduct in order to effect a Terry type detention to investigate incipient criminal activity. Where, as here, Officer Williams stopped Layne in her vehicle, a seizure occurred for purposes of the fourth amendment. Nevertheless, because Officer Williams had a reasonable and articulable suspicion that Layne had committed a criminal offense and might do so again, he was justified in temporarily detaining her to inquire about her identity and the legality of her conduct. Because Layne was not illegally detained, we reject her contention that the evidence of her intoxication should have been suppressed. For the foregoing reasons, we affirm Layne's conviction.
Affirmed.
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946 F.2d 891
Fultzv.Collins*
NO. 91-4159
United States Court of Appeals,Fifth Circuit.
SEP 30, 1991
1
Appeal From: E.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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267 F.2d 127
Eli D. GOODSTEIN et al., Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Eli D. GOODSTEIN et al., Respondents.
No. 5458.
No. 5459.
United States Court of Appeals First Circuit.
May 21, 1959.
John P. Allison, New York City, with whom Stanley W. Herzfeld and Marshall, Bratter, Greene, Allison & Tucker, New York City, on brief, for Eli D. Goodstein et al.
Grant W. Wiprud, Attorney, Department of Justice, Washington, D. C., with whom Charles K. Rice, Asst. Atty. Gen., and Lee A. Jackson and Harry Baum, Attorneys, Department of Justice, Washington, D. C., on brief, for Commissioner of Internal Revenue.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
1
These are petitions for review of a decision of the Tax Court of the United States, 30 T.C. 1178. Petition No. 5458 is by the taxpayers from that part of the Tax Court's decision finding deficiencies in their income tax for the years 1952 and 1953. Petition No. 5459 is by the Commissioner solely for protective purposes in the event the taxpayers are successful in their petition.1 The taxpayers, who filed joint returns, are husband and wife and reside in Fitchburg, Massachusetts. The husband, Eli D. Goodstein, will be hereinafter called the taxpayer. These deficiencies resulted from the disallowance as a deduction from gross income under Section 23(b) of the Internal Revenue Code of 1939, 53 Stat. 12 (1939), 26 U.S.C. § 23(b) (1952),2 of interest allegedly paid on loans made to the taxpayer to finance the taxpayer's purchase of $10,000,000 in face amount of United States Treasury 1 3/8% notes maturing on March 15, 1954.
2
The Tax Court held that the arrangements under which the taxpayer purported to borrow the money necessary for this purchase of Treasury notes were part of a preconceived plan which lacked substance and should be ignored for tax purposes. It also found that even if there was an actual borrowing of money and purchase of Treasury notes, there were no actual payments of interest made by the taxpayer, who was on the cash basis, during 1952 and 1953.
3
There is little controversy as to most of the facts in the record. The dispute is as to whether these facts require the inference that there were payments of interest on an indebtedness recognizable under Section 23(b).
4
The essential relevant facts relied upon by the Tax Court and by the taxpayer are as follows: In October 1952 the taxpayer, who is an accountant by profession and also a corporate executive, met M. Eli Livingstone, a Boston broker and dealer in securities. They discussed a possible purchase by the taxpayer of a substantial amount of government securities, the financing thereof by means of a small down payment and a loan for the balance and the income tax consequences of such a transaction. With regard to the latter point, the taxpayer was shown two letters, one of which was dated June 30, 1952 from a Deputy Commissioner of Internal Revenue to Livingstone and the other dated September 26, 1952 from an Assistant Commissioner and addressed to Mrs. Louise F. Livingstone. The second of these letters expressly indicated that a transaction substantially similar to that followed by the taxpayer here would result in any interest payments being deductible from the taxpayer's gross income and the gain realized from the sale of the notes if held for more than six months would be treated as a long term capital gain. Following further negotiations it was agreed that the taxpayer would make a down payment of $15,000 for the $10,000,000 face value Treasury notes and that Livingstone would arrange the loan for the balance.
5
On October 27, 1952, taxpayer ordered Livingstone to purchase for him $10,000,000 in face value of the Treasury notes. Livingstone after the receipt of taxpayer's check for $15,000 instructed the Guaranty Trust Company of New York, with which Livingstone had a security clearance account, to receive from C. J. Devine & Co., bond dealers, $10,000,000 face value Treasury notes. At the time of delivery of the notes to the bank, it debited Livingstone's account $9,929,212.71 and credited C. J. Devine & Co.'s account with the bank a corresponding amount.3 Within a half hour the bank, pursuant to Livingstone's order, redelivered the Treasury notes to Devine who paid for them with a certified check on its Guaranty Trust account equal to the credit previously received by it minus a commission of $1,562.50. The taxpayer has not indicated what was done with this certified check but it would seem reasonable to assume that the bank utilized it to offset the credit it had extended to Livingstone.4
6
On this same date, October 27, 1952, the taxpayer executed a promissory note to Seaboard Investment Corp. for $9,914,212.71 payable on March 15, 1954 with interest at 2 3/8% per annum. The note recited that the taxpayer pledged with Seaboard as security the $10,000,000 Treasury notes and gave Seaboard the right "* * * to hypothecate and use the securities pledged for any purpose while so pledged. Said right is not to be inconsistent in any manner with the ownership by the undersigned of said collateral, and with the right to the undersigned to obtain the return of the collateral at any time upon tender of payment of the principal and interest due hereunder." The taxpayer also directed Livingstone as his broker to deliver the Treasury notes to Seaboard "against payment by them (Seaboard) of $9,914,212.71," the amount of the promissory note. This step was not taken because Seaboard did not have any funds remotely approaching $9,914,212.71. Seaboard was a corporation formed in 1952 whose president was Samuel Livingstone, brother of M. Eli Livingstone, and whose sole function appeared to be to "finance" transactions such as this. To pay Livingstone for these Treasury notes, Seaboard ordered Livingstone, without the knowledge of the taxpayer, to sell these notes and Livingstone issued a confirmation slip stating that as agent for Seaboard he sold for Seaboard $10,000,000 face value of Treasury notes at 99 7/64 for a net selling price of $9,915,150.21. It is taxpayer's contention that in effect Seaboard obtained the funds necessary to make the loan to the taxpayer by taking a short position in the Treasury notes for Seaboard's own account. On its books Seaboard recorded this transaction by debiting its asset account, Notes Receivable from Eli D. Goodstein — $9,914,212.71 and crediting its liability account to Livingstone & Company, the same amount. It would seem that as Livingstone & Company had been acting for Goodstein in "delivering" Goodstein's notes to Seaboard, any short sale which borrowed these notes in order to make delivery would result in the notes being owed to Livingstone only in his capacity as agent for Goodstein.
7
On October 30, 1952, taxpayer issued a check for $40,000 to Seaboard which bore the notation that it was in part payment of interest on his promissory note. Another check for the same purpose but for $10,000 was drawn on December 12, 1952. Taxpayer then deducted $50,000 as interest on his tax return for the year 1952. Shortly after each of these checks was received by Seaboard, it issued its check in an identical amount to the taxpayer who executed his promissory note to Seaboard for the amount thereof. The same practice continued in 1953 with seven pairs of checks. The taxpayer deducted5 from his gross income in 1953 the amount of his seven checks, $71,011.82, along with an amount equal to the interest he theoretically was entitled to receive on the Treasury notes and which was credited to him by Seaboard.
8
On January 19, 1954 the taxpayer's assignee ordered Livingstone to sell the $10,000,000 Treasury notes and after paying off the taxpayer's promissory note to Seaboard, to remit the difference. Livingstone issued a confirmation slip indicating that $10,000,000 Treasury 1 3/8% notes maturing on March 15, 1954 had been sold at 100 9/32 plus interest for a total sum of $10,075,984.12. On Seaboard's books this amount was debited to Accounts Receivable, Livingstone & Company, and was credited to notes receivable, interest income and loans receivable and the taxpayer's note was cancelled.
9
The Tax Court from its examination of the entire record determined that all these transactions were pursuant to a preconceived plan which lacked substance and should be ignored for tax purposes, citing Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Griffiths v. Commissioner, 1939, 308 U.S. 355, 60 S. Ct. 277, 84 L.Ed. 319; Bazley v. Commissioner, 1947, 331 U.S. 737, 67 S.Ct. 1489, 91 L.Ed. 1782, and that Seaboard was utilized merely for the purpose of recording the payment of interest which was never really paid.
10
The taxpayer contends that the finding of the Tax Court that the taxpayer's purchase of Treasury notes and borrowing from Seaboard were fictions without economic reality was clearly erroneous, and its disallowance of the interest deductions must be set aside.
11
However, a second ground for disallowing the interest payments was alternatively relied upon by the Tax Court which stated: "It may be further added that even if the transaction were considered as one of substance, the petitioner, being on the cash basis, would not, under the circumstances here disclosed, be entitled to a deduction for interest in either of the taxable years 1952 or 1953. There was no payment of interest. At best there would be no more than the giving of notes to evidence a liability for interest. It has been held many times that in the case of taxpayers on the cash method of accounting, the giving of notes to cover liability does not satisfy the statutory requirement of payment and does not permit a deduction from gross income." With this finding we are in accord. See Hart v. Commissioner of Internal Revenue, 1 Cir., 1932, 54 F.2d 848. Taxpayer cites Newton A. Burgess, 1947, 8 T.C. 47, which would seem to hold to the contrary but to us the reasoning of the dissenting members of the court is the more persuasive.
12
Moreover, we are convinced that following the transactions of October 27, 1952, there existed no indebtedness from the taxpayer to Seaboard. Despite the transitory possession by the Guaranty Trust Company of the Treasury notes for Livingstone's account who was acting as the taxpayer's agent, there was never in substance either a purchase of the notes by the taxpayer or borrowing of the purchase funds from Seaboard. However, it would seem that these transactions did create a legal relationship between the taxpayer and Seaboard,6 but it was not one of borrower and lender. Rather the net result of these transactions was the exchange of promises of future performances between the taxpayer and Seaboard. The taxpayer promised to pay Seaboard a certain preascertained sum of money on March 15, 1954 or at any time before that date which he may select. Seaboard in return promised to acquire and deliver to the taxpayer on the date so selected $10,000,000 face value of 1 3/8% United States Treasury notes maturing on March 15, 1954 with interest accrued from the date of the contract.
13
The Tax Court also denied to the taxpayer a deduction of $14,722.02 which was claimed as a loss incurred in 1952 as a result of a transaction entered into for profit under Section 23(e) (2) of the 1939 Code. This amount represented the net down payment made by the taxpayer to Livingstone. It is contended that if the purchase of Treasury notes in 1952 was not recognizable for income tax purposes, and we have sustained the Tax Court in so deciding, then this payment which was made to procure the ownership of these notes was a complete loss. The Tax Court held that because the taxpayer did not intend to purchase and did not purchase any Treasury notes, there was no transaction entered into for profit within the meaning of Section 23 (e) (2). However, it cannot be denied that this amount was actually expended by the taxpayer in connection with a transaction which, although it did not result in the purchase of Treasury notes or the borrowing of money, did create a bilateral contract between himself and Seaboard. The transaction was not completed until this contract was either executed or terminated in some manner. This completion did not occur in 1952 and consequently its expenditure cannot be deducted as a loss for that year but rather must be classified as an item of cost to be considered in the taxable year when the transaction was finally completed. See Helvering v. Winmill, 1938, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52.
14
The third point raised by the taxpayer concerns the effect of the two letters addressed to M. Eli Livingstone and Mrs. Louise F. Livingstone. The taxpayer contends that although these letters were not addressed to him they were shown to him by Livingstone and he relied upon their approval of transactions which would seem to be essentially undistinguishable from that presented here.7 In fact the taxpayer stated, and there is no reason to disbelieve him, that he would not have entered into this transaction if he had not seen these letters. Under these circumstances, the good faith of the taxpayer in attempting to reduce his taxes by this method is unassailable. However, an essential fact here is that these letters were not intended to be applicable to the taxpayer. If such were the case and particularly if the ruling referred to a prospective transaction it is evident that there would be serious question as to whether the Commissioner had abused the discretion given him under Section 3791(b) of the 1939 Code.8 It seems clear that any abuse of this discretion would be reversible by this court. See Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L. Ed.2d 746. But to hold that the Commissioner is bound by rulings specifically addressed to a taxpayer other than the one whose return is questioned would severely limit the usefulness of the long established practice of private administrative rulings. The taxpayer strongly relies upon Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 1956, 238 F.2d 589, but in that case the ruling, which was a certificate of exemption, was specifically applicable only to the taxpayer in question. The determination by the court in that case that the Commissioner abused his discretion in retroactively revoking the taxpayer's exemption is not relevant to the situation presented here. We are of the opinion that the Tax Court was correct in holding that insofar as the only published ruling dealing with this type of transaction, Rev.Rul. 54-94, 1954 — 1 Cum.Bull. 53, concluded that payments such as those made by the taxpayer were not deductible and that no individual ruling to the contrary was ever issued to the taxpayer, he cannot now assert that the Commissioner committed error in his retroactive application of the published ruling.
15
Judgment will be entered affirming the decision of the Tax Court.
Notes:
1
As the Tax Court held that the taxpayers could not deduct interest payments on a loan, purported to have been made to them in order to purchase Treasury notes, because in fact there had been no actual purchase of the Treasury notes or loan, it excluded from taxpayers' gross income the amount designated as interest income from the Treasury notes. Consequently if the Tax Court was in error and the interest deductions are allowable, its exclusion of the interest income from the Treasury notes should also be reversed
2
"§ 23Deductions from gross income.
"In computing net income there shall be allowed as deductions:
* * * * *
"(b) Interest.
"All interest paid or accrued within the taxable year on indebtedness, * * *."
3
The taxpayer contends that by the extension of this credit by the bank he assumed a personal obligation to repay this amount and this potential liability is an element indicative of the substantial nature of the entire transaction. He concedes, however, that the enforcement of this liability was unlikely. This concession, if anything, is an understatement when we analyze the nature of this potential liability. The credit was extended for approximately half an hour during which period the creditor, the bank, had in its possession $10,000,000 face value Treasury notes which had a market value approximately equal to the credit extended
4
Apparently the bank relied upon Livingstone for reimbursement of the $1,562.50 difference in the checks and for the bank's fee for handling the notes
5
The amount of the deduction for interest payments finally set forth on the taxpayer's return for 1953 was decreased by $38,000 from this amount as a result of an exchange of checks on June 5, 1953 between Seaboard and the taxpayer which purported to represent a refund of interest
6
There does not appear to be any suggestion that the taxpayer had any means of controlling the management of Seaboard, through ownership of stock. See Matthew M. Becker, P-H 1959 TC Mem. Dec. ¶ 59,019 (1959)
7
The first letter did not indicate that the interest payments made by the taxpayer were financed by the Finance Company. This fact was disclosed in the second letter
8
"The Secretary, or the Commissioner with the approval of the Secretary, may prescribe the extent, if any, to which any ruling, regulation, or Treasury Decision, relating to the internal revenue laws, shall be applied without retroactive effect." 26 U.S.C.A. § 3791(b)
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6 Mich. App. 115 (1967)
148 N.W.2d 516
PEOPLE
v.
O'LEARY.
Docket No. 912.
Michigan Court of Appeals.
Decided February 28, 1967.
Leave to appeal denied May 12, 1967.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert B. Currie, Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.
William J. Ginster, for defendant.
Leave to appeal denied May 12, 1967. See 379 Mich 762.
*118 HOFFIUS, J.
Defendant was convicted of negligent homicide, CL 1948, § 750.324 (Stat Ann 1954 Rev § 28.556), arising out of an accident on June 15, 1963, on highway M-81 at the western outskirts of Reese, in Saginaw county. The highway ran in an east-west direction and was 22' wide. The accident occurred on a sunny, bright, clear, dry day. Defendant was driving a pickup truck in an easterly direction on said highway. Theresa Palmreuter was the driver of a 1957 Mercury sedan which was proceeding on M-81 in a westerly direction. Traveling with her and sitting in the front seat of her automobile were her two minor children, Mary D. Palmreuter and Nancy M. Palmreuter, both of whom died as a result of the injuries suffered in this accident.
Defendant O'Leary was charged with involuntary manslaughter, CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553). The manslaughter charge was dismissed at the close of the proofs and the case submitted to the jury on the negligent homicide charge only. There was testimony that the defendant had been driving in an erratic manner, going over the center line several times prior to the point of impact, and that just before the impact, defendant's truck crossed the center line and went into the north lane or westbound lane of traffic and struck Mrs. Palmreuter's vehicle. The prosecution offered the testimony of Mrs. Palmreuter, as well as two disinterested witnesses who were following in an automobile approximately 500' behind defendant's pickup truck. All three of these witnesses confirmed that defendant crossed the center line immediately prior to impact, striking Mrs. Palmreuter's automobile in her own westbound lane of traffic.
*119 Defendant denied this and claimed that Mrs. Palmreuter crossed the center line into his south or eastbound lane of traffic just prior to the collision. In support of this claim he relied upon his own testimony, as well as the location of the debris and position of the vehicles after the accident.
After the impact, the Mercury, driven by Mrs. Palmreuter, was facing west in the eastbound lane of traffic south of the center line. Defendant's truck was facing in a southwesterly direction and was in contact with Mrs. Palmreuter's right front fender. From the exhibits, it is apparent that there was extensive damage to the right and entire front end of defendant's vehicle and that the greatest damage to Mrs. Palmreuter's vehicle was the right front end.
There were parts and debris scattered over the highway in the general area of the collision. Traces of oil and radiator water were in the north lane, but most of the fluid was on the south side of the highway. Numerous parts were found under the front of Mrs. Palmreuter's vehicle and near the center line between the two cars.
Defendant claims that the examining magistrate erred in binding the case over for trial on manslaughter. He also claims that the trial court erred by denying defendant's motion to quash the manslaughter charge, by refusing to grant a continuance, by ruling against defendant on certain evidentiary matters, and by holding that the verdict was not contrary to the great weight of the evidence.
Relative to defendant's claim that the examining magistrate erred in binding the defendant over for trial, the complaint and warrant charged that defendant was driving under the influence of intoxicating liquor and negligently and wantonly crossed the center line of the highway, striking Mrs. Palmreuter's vehicle.
*120 "`Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.'" People v. Ryczek (1923), 224 Mich 106, 110.
See, also, People v. Wardell (1939), 291 Mich 276.
Three eyewitnesses to the accident testified at the preliminary examination that, on different occasions, defendant drove his truck in the wrong lane of traffic and that at the time of the collision, he was completely on the wrong side of the highway. The officers testified they smelled the odor of alcohol on defendant's breath.
Defendant argued that the physical facts of the position of the car and location of the debris indicated conclusively that the accident did not occur as the prosecution claimed. The examining magistrate, however, decided that the case should be bound over for trial on the charge of involuntary manslaughter.
A finding of probable cause does not require that the guilt of the defendant be established beyond a reasonable doubt. Even though the trial court or this Court may not agree with the magistrate, we cannot substitute our judgment for the magistrate's determination of probable cause unless there has been a clear abuse of discretion. People v. Marklein (1960), 358 Mich 471; People v. Carr (1963), 370 Mich 251; People v. Davis (1955), 343 Mich 348; People v. Dellabonda (1933), 265 Mich 486. This Court is of the opinion that there was sufficient evidence to uphold the magistrate's action in this case.
Counsel for defendant next urges that the trial court erred in its denial of the motion to dismiss *121 the manslaughter charge at the end of the prosecution's case. Upon renewal of the motion prior to the submission of the case to the jury, the court dismissed the manslaughter charge and permitted the case to go to the jury only on the charge of negligent homicide. Under the circumstances, the question became moot, since the jury never had the opportunity to consider the manslaughter charge and no error was committed.
Defendant next claims error when the trial court denied a motion for continuance because of the pregnant condition of Theresa Palmreuter, mother of the two deceased children. The basis for a continuance by the court is set forth in the following statute:
"No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record." CL 1948, § 768.2 (Stat Ann 1954 Rev § 28.1025).
A continuance is a matter of discretion with the trial court. In People v. Knox (1961), 364 Mich 620, the trial court denied defendant's request for a continuance to obtain an expert witness. The Supreme Court stated at page 644:
"It has been repeatedly recognized by this Court that a trial judge has discretion in granting or refusing a motion of the character here involved, and that this Court will not interfere unless there has been a palpable abuse of such discretion. In view of the situation with which the trial judge was confronted, it may not be said that his action in denying the request for further time for the appearance of the desired witness was unreasonable. The judicial discretion was not abused."
*122 In People v. Raider (1931), 256 Mich 131, a continuance because of alleged inflammatory articles in the newspaper was denied and the Court held that the defendant had not carried the burden of proving an abuse of discretion. The Court said at page 134:
"Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable."
In the instant case, the pregnancy of Mrs. Palmreuter cannot be said to have been so prejudicial to the interests of the defendant as to compel this Court to find that the trial court abused its discretion in the denial of a motion for continuance.
Defendant claims also that the trial judge erred in terminating defense counsel's interrogation of a witness who purportedly could reveal prior inconsistent statements made by Charles Knoop, an eyewitness to the accident, relative to the distance between his vehicle and defendant's pickup truck. The questions asked were as follows:
"Q. And did people come into your house to use the telephone?
"A. Yes, there was people in the house. There was quite a few people in the house. I don't know who they all were.
"Q. And did you talk to a tall thin man about the accident?
"A. Yes.
"Q. What did he say ma'am?
"The Court. No, this is hearsay again. I don't want this on the record."
At no time did defendant's counsel pursue this questioning with specific identification of witness Knoop as the "tall thin man" nor did he state to the *123 court that such testimony was for the purpose of impeaching witness Knoop's prior testimony. No further offer of proof was ever made. Defendant's counsel did not make known to the court his position in regard to this testimony as required under GCR 1963, 507.5, which reads:
"Exceptions Unnecessary. Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of the objection does not thereafter prejudice him."
In addition thereto, defendant's counsel did not make an offer of proof at the time of the ruling in accordance with GCR 1963, 604, which reads as follows:
"If an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or by leave of court, may examine the witness in relation thereto. The court may require the offer to be made or the testimony taken out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon."
The trial court did not have an opportunity to fairly pass upon defendant's claim that the question was directed at impeaching the testimony of the witness. Under these circumstances, it cannot be said that the trial court erred in refusing the proffered testimony when the reasons for such testimony *124 were not made clear to the judge. See Eglash v. Detroit Institute of Technology (1965), 375 Mich 592; Herndon v. Woodmen of the World (1965), 1 Mich App 141.
Defendant next advocates on appeal that the trial court erred in refusing Wayne Schwaln's testimony as an expert relative to the point of impact. Wayne Schwaln was a former deputy sheriff who had not worked in that capacity for seven years prior to his testimony. He was not an eyewitness to the accident nor one of the investigating officers at the scene. The question to which objection was made was based upon the witness' examination of photographs only. As far as the record shows, this witness knew nothing regarding direction, weight or speed of the vehicles, width of the highway, weather conditions, visibility or other material data upon which expert opinions are traditionally formulated. The question was merely stated as follows:
"Q. Now, based on your observations in those exhibits, (referring to photographs) do you have an opinion to where the point of impact
"The Court. Go ahead, ask the question.
"Q. (By Mr. Ginster, continuing): Between the vehicles where the point of impact was between the vehicles involved?
"A. Yes.
"Mr. Currie. Objection, Your Honor.
"The Court. Are you going to ask him his opinion?
"Mr. Ginster. Yes.
"The Court. I'm not going to allow him to testify because he has not been qualified as an accidentologist, an expert, and making an examination from those photos, the jury will have the photos and they'll determine the point of impact from the photos; plus the other evidence in the case."
*125 No further offer of proof was made nor did counsel pursue this line of questioning.
This Court is of the opinion that it was not reversible error for the trial court to sustain the objection.
The recent case of Dudek v. Popp (1964), 373 Mich 300, indicates a relaxing of the former strict rule concerning the admission of expert opinion by investigating officers as to their determination of the point of impact. The Court said at p 307:
"We align ourselves with the authorities which hold that one properly qualified in accident investigative background may testify either from personal observation or from properly authenticated and admitted exhibits that, in his opinion, certain marks are skid marks and that they were made by a given motor vehicle and his reasons therefor. On the same basis and for the same reasons, he may point out in his opinion the point of impact."
It should be noted, however, that in Dudek, supra, it was the investigating officer who gave the opinion as to the alleged point of impact and not an exdeputy sheriff viewing only photographs taken on the day of the accident. The court also stated in Dudek, supra, at pp 305-306:
"The danger involved in receiving the opinion of a witness is that the jury may substitute such opinion for their own. Accordingly, where all the relevant facts can be introduced in evidence and the jury are competent to draw a reasonable inference therefrom, opinion evidence will not be received. When the conclusion to be drawn from the facts depends on professional or scientific knowledge or skill, the conclusion may be stated. (32 CJS, Evidence, § 446)."
It can readily be seen that Dudek can be distinguished in view of the fact that the jury could draw the same inferences from the photographs as the *126 ex-deputy sheriff, although the jury would have all of the other relevant testimony from eyewitnesses as well as distances, weather conditions, et cetera, upon which to base their conclusion.
We cannot say that the trial court has abused its discretion in the refusal of the proffered testimony. In People v. Hawthorne (1940), 293 Mich 15, the Court said at p 23:
"The determination of the qualifications of an expert is a question for the trial judge and we entrust the matter to his discretion. We interfere only to correct an abuse."
Lastly, defendant contends that the verdict of the jury is contrary to the great weight of the evidence. Defendant reiterates the argument previously stated that the physical facts of the position of the car and the location of the debris indicate conclusively that the accident did not occur as the prosecution claimed. However, it should be remembered that there were three eyewitnesses to the accident who testified clearly and positively that the accident occurred in Mrs. Palmreuter's lane of traffic and not in defendant's lane of traffic. This created a dispute of fact to be submitted to the jury. In addition thereto, there was substantial testimony as to the erratic driving pattern of the defendant for several miles prior to the point of impact.
Although the Supreme Court has on occasion in civil cases ruled that a directed verdict should have been granted when a party's theory is completely inconsistent with the undisputed physical facts after an accident, it is apparent that the physical facts here are not inconsistent with the prosecution's theory of the accident. In Albrecht v. Pritchard (1957), 347 Mich 166, the Court found that the location of debris after an accident does not necessarily locate the point of impact. The Court said at p 171:
*127 "Contrary to popular impression, the location of debris following violent automotive collision does not necessarily locate the point of impact, with accuracy at least. Debris and broken glass do not always, if we consider physics, drop like a plummet from point of collision. Indeed, and in the present case, the trier of facts would have been justified in finding that located presence of such debris is just as consistent with plaintiff's theory as with that of defendant. It, the debris, could have come from either car, or both."
In Harding v. Blankenship (1936), 274 Mich 118, the Court said at p 122:
"The positions of the cars and other such physical facts after the accident are not absolutely determinative of just what happened immediately prior to a collision."
In Fitzpatrick v. Ritzenhein (1962), 367 Mich 326, there is a complete discussion of the situation with regard to physical facts. It appears that only rarely will the physical facts be conclusive when there is conflicting testimony as to the point of impact.
The final location of the vehicles and debris can be reconciled with the testimony of the prosecution's three eyewitnesses as to the point of impact. It must, therefore, be said that there was evidence from which the jury could find the defendant guilty of the crime of negligent homicide beyond a reasonable doubt.
We, therefore, conclude that no reversible error has been committed in the trial of this cause and the cause will be remanded for execution of sentence.
HOLBROOK, P.J., and BURNS, J., concurred.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0015
First Baptist Church of St. Paul, et al.,
Appellants,
vs.
City of St. Paul,
Respondent.
Filed August 31, 2015
Affirmed
Halbrooks, Judge
Ramsey County District Court
File No. 62-CV-11-8862
John G. Hoeschler, John G. Hoeschler, P.A., Eagan, Minnesota (for appellants)
Samuel J. Clark, St. Paul City Attorney, K. Meghan Kisch, Assistant City Attorney,
St. Paul, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellants challenge the district court’s grant of summary judgment to
respondent, arguing that respondent’s right-of-way maintenance assessment (1) is a tax,
(2) does not meet the special-benefit standard, (3) is improperly based on estimated costs,
(4) fails to comply with respondent’s charter and policies, and (5) is arbitrary and
capricious. Because we conclude that the assessment is a regulatory service fee, we
affirm.
FACTS
Appellants First Baptist Church of St. Paul and Church of St. Mary (the churches)
challenge the 2011 right-of-way maintenance (ROW) assessment levied by respondent
City of St. Paul (the city). The city maintains all of the streets and sidewalks within the
city limits and uses an annual ROW assessment to recoup the costs related to street
maintenance. The amount the city assesses each property depends on the property
location, size, street material, and services provided.
In the downtown district, the city categorizes property as either “all property” or
“residential condominium.” The all-property ROW assessment rate is higher than the
residential-condominium rate. Outside of downtown, the city categorizes property as
either “commercial” or “residential.” The commercial ROW assessment rate is higher
than the residential rate. The city charges tax-exempt properties located in the downtown
district at the all-property rate, and it charges tax-exempt properties located outside of
downtown at the residential rate. The churches are located in the downtown district and
are assessed at the all-property rate.
In November 2010, the St. Paul City Council held a public hearing to establish the
level of the ROW services to be performed in 2011 and the amount of service charges to
be levied against benefited properties. In September 2011, the city council proposed the
2011 ROW assessment. The churches objected to the proposed ROW assessment. On
2
October 5, 2011, the city held a public hearing, the churches reiterated their objections,
and the city council unanimously adopted the 2011 ROW assessment.
The churches appealed to the district court, challenging the assessment. Both the
city and the churches moved for summary judgment. The churches then moved to amend
their assessment appeal based on newly discovered evidence. The district court granted
summary judgment in favor of the city without addressing the motion to amend. The
churches then appealed to this court, and we remanded the case to the district court for a
ruling on the churches’ motion to amend. See First Baptist Church of St. Paul, et al. v.
City of St. Paul, No. A12-1582, 2013 WL 1943045, at *2 (Minn. App. May 13, 2013).
On remand, the district court granted the churches’ motion, and the churches filed
an amended and restated notice of appeal of the ROW assessment. The district court
indicated that the “matter will be deemed to have been restarted from ground zero.” In
the amended and restated notice of appeal, the churches alleged that (1) the 2011 ROW
assessment was not uniform across the same class of property; (2) the services funded by
the assessment provided no special benefit to the churches’ properties; (3) the assessment
exceeded the value of any special benefit to the properties; (4) the assessment was
improperly calculated; (5) the city failed to follow its charter, code, and policies; and
(6) the assessment program was arbitrary and capricious.
The city and the churches again moved for summary judgment. The district court
granted summary judgment to the city, determining that the assessment is a fee for
services and that the churches “failed to meet their burden of establishing that the
assessment was unreasonable.” The district court also found that the city properly
3
followed its charter, ordinances, and policies and that the churches’ other claims were
outside the scope of the district court’s authority. This appeal follows.
DECISION
Summary judgment shall be entered “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that either party is entitled to
judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary
judgment, we review “whether there are any genuine issues of material fact and whether
the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). We “view the evidence in the light
most favorable to the party against whom summary judgment was granted.” Id. at 76-77.
I.
The churches argue that the district court erred by concluding that the ROW
assessment is a regulatory service fee and not a tax. Because the district court applied the
law to undisputed facts, we review the district court’s characterization of the assessment
as a legal conclusion, which is subject to de novo review. See All Parks All. for Change
v. Uniprop Manufactured Hous. Cmtys. Income Fund, 732 N.W.2d 189, 193 (Minn.
2007) (“The application of the law to undisputed facts is subject to de novo review.”).
“Any city operating under a home rule charter may proceed either under [state
statute] or under its charter in making an improvement . . . .” Minn. Stat. § 429.111
(2014). The term “improvement” includes
4
maintaining sidewalks, pavement, gutters, curbs, . . .
maintain[ing] storm and sanitary sewers and systems, . . .
maintain[ing] street lights and street lighting systems, . . .
plant[ing] trees on streets and provid[ing] for their trimming,
care, and removal, . . . maintain[ing] signs, posts, and other
markers . . . .
Minn. Stat. § 429.021, subd. 1 (2014). Here, the city is a home-rule charter city and has
proceeded under the provisions of its charter in levying the ROW assessment. That
significant fact guides our analysis of this issue.
The charter states that “[t]he city shall have the power to levy assessments to pay
all or any part of the cost of improvements as are of a local character, but in no case shall
the amounts assessed exceed the benefits to the property.” St. Paul, Minn., City Charter
ch. 14, § 14.01 (2014). The charter also states that an assessment may be challenged in
three ways: a finding of fraud, a demonstrable mistake of fact or law, or when the
assessment exceeds the actual benefit. Id., § 14.01.4(2) (2014).
The limitations on a city’s power to levy assessments depend on whether the
assessment is in fact a tax or a fee. Am. Bank of St. Paul v. City of Minneapolis, 802
N.W.2d 781, 785-86 (Minn. App. 2011). The Minnesota Supreme Court “recognize[s] a
distinction between revenue collected under the taxing power and regulatory service fees
collected under the police power.” Id. at 786 (citing Country Joe, Inc. v. City of Eagan,
560 N.W.2d 681, 686 (Minn. 1997)). If a special assessment is a general revenue-raising
measure, it is a tax and the special-benefit standard applies. Id. But if a city imposes an
assessment under its police power, then the assessment is a regulatory service fee, and the
fee is upheld unless it is unreasonable. Id. at 786-87. A municipality has wide discretion
5
to use its police powers to preserve public health, protect public safety, and abate
nuisances. State v. Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 98, 100 (1944).
Here, the 2011 ROW assessment covers the cost of services such as sweeping,
patching, and sealing streets and alleys; patching unimproved rights-of-way; overlaying
streets; snow plowing, sanding, and salting; tree trimming; streetlight and traffic sign
repair; litter pick up; enforcement of ordinances; and emergency maintenance services.
The purpose of the 2011 ROW assessment is to “recoup the cost” of maintaining all city
streets and sidewalks. The money collected through the ROW assessment program is not
used to pay for other city programs. The services improve the city’s health and safety by
removing debris and snow from city streets, repairing streetlights and signs, and patching
potholes in the streets, alleys, and sidewalks. Therefore, we conclude that the district
court correctly concluded that the ROW assessment is a regulatory service fee and that all
of the “services relate to the regulatory exercise of the city’s police power.”
II.
We next consider whether the district court correctly concluded that the
assessment is reasonable and that no genuine issue of material fact exists regarding its
reasonableness. The churches argue that the assessment is not reasonable because, in
part, (1) the assessment is based on estimated costs, (2) the amounts assessed to the
churches’ properties exceed the actual costs, and (3) there is no rational basis for
assessing downtown churches at a higher rate than other churches. The district court
found that the churches “failed to meet their burden of establishing that the assessment
was unreasonable.”
6
A regulatory service fee is reasonable if the record demonstrates that the
assessment amount is proportional to the cost of the services rendered. See Am. Bank,
802 N.W.2d at 788. Here, the city has acknowledged that the all-property assessment
rate in the downtown district is greater than the average per-foot cost to provide the
services throughout the downtown district and that the residential-condominium rate is
less than the average per-foot cost. But the city also stated that commercial properties
normally generate more traffic than residential properties. In addition, the churches
acknowledge that the city’s total 2011 assessment only covered 83% of the annual cost of
services citywide. Because the assessment is reasonably related to the cost of services
and because the city has broad discretion when exercising its police powers, we conclude
that the district court did not err by finding that the assessment was reasonable.
III.
The churches next argue that the district court erred by not finding that the
assessment was improperly calculated based upon estimated costs. The churches argue
that the assessment cannot be based on estimated costs or averages and must instead be
based on actual costs, citing this court’s decision in Bisbee v. City of Fairmont, 593
N.W.2d 714 (Minn. App. 1999).
In Bisbee, we affirmed the district court’s grant of summary judgment to the
property owners, holding that the assessment method used by the city was prima facie
invalid because it did not approximate the special benefits actually received and instead
relied on the previous three-year average cost of construction. 593 N.W.2d at 719. But
Bisbee involved a special assessment governed by chapter 429 that is subject to the
7
special-benefit standard. Id. at 718. Here, as we previously noted, the ROW assessment
is governed by the city’s charter and is a regulatory service fee subject to the
reasonableness standard. Therefore, Bisbee’s holding does not apply, and the district
court did not err by finding that the assessment was not improperly calculated based on
estimated costs.
IV.
The churches argue that the assessment fails to comply with the city’s charter,
code, and policies because the city never adopted an assessment roll in 2011 as required
by the city charter and the city ignored its policy that churches would be assessed at
residential rates.
Assessment Roll
The city contends that the churches waived the assessment-roll issue because they
failed to include it in their amended and restated notice of appeal. But review of the
amended and restated notice of appeal demonstrates that the churches refer to the lack of
an assessment roll consistently throughout the amended notice and specifically allege that
this violates the city charter. The district court granted summary judgment to the city on
this claim, stating that the churches “misinterpret the charter,” but the district court did
not address the churches’ specific argument that the city failed to adopt an assessment
roll.
The city’s charter requires that “an assessment roll shall be prepared . . . and shall
be filed and open to public inspection” after the cost of an improvement is calculated.
St. Paul, Minn., City Charter, ch. 14, § 14.01.1(2) (2014). There is no assessment roll in
8
the record before this court. But even if the city failed to comply with its charter by not
filing an assessment roll, the churches have failed to demonstrate that they suffered any
prejudice as a result.
The city provided notice that it would hold a hearing on November 3, 2010, to
establish the type and level of services to be performed in 2011, in accordance with
section 62.02 of its administrative code. The city then provided notice that it would hold
a hearing on October 5, 2011, to hear from the public regarding the proposed 2011
assessment amount and rates, in accordance with section 64.02 of its administrative code.
The churches had an opportunity to be heard by objecting to the proposed assessment in
writing prior to this hearing and orally at the October 5 hearing. And the churches knew
the rate at which their properties would be assessed. Therefore, the churches have not
been prejudiced by any failure by the city to comply with its procedures set forth in its
charter or code.
Policy to Assess Churches at Residential Rates
The churches argue that the city violated its own policy by assessing downtown
churches at the all-property rate rather than the residential-condominium rate. The
churches acknowledge that the city does not have an explicit written policy on its
treatment of tax-exempt churches; instead they point to language contained in the city’s
assessment resolutions passed between 2004 and 2009, which each state: “Churches and
church properties would be assessed at the residential rate.” But the all-property rate
assessed in the downtown district applies to all properties except residential
condominiums, which means that there may be residential properties in the downtown
9
district that are not condominiums and that are also assessed at the all-property rate.
Therefore, the churches have not demonstrated that the city is violating its policy by
assessing tax-exempt churches at the all-property rate.
V.
Lastly, the churches argue that the assessment is arbitrary and capricious. But the
parties’ joint statement of the case in the district court stated, “Appellants intend to waive
their additional claims that the city’s procedure and practices are so inconsistent, arbitrary
and capricious that the entire [ROW] program should be declared illegal . . . .”
Therefore, because the churches abandoned the issue before the district court, we
conclude that this issue is waived on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988).
Affirmed.
10
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37 P.3d 724 (2001)
2001 MT 283
In the Matter of A.F.-C., A Youth in Need of Care.
No. 00-804.
Supreme Court of Montana.
Submitted on Briefs April 5, 2001.
Decided December 20, 2001.
*725 Julianne Hinchey, Hinchey Law Offices, Kalispell, MT, For Appellant.
Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT, Thomas J. Esch, County Attorney, Kalispell, MT, For Respondent.
Justice JIM RICE delivered the Opinion of the Court.
¶ 1 H.C. appeals from the Findings of Fact, Conclusions of Law and Order entered by the Eleventh Judicial District Court, Flathead County, terminating her parental rights to A.F.-C.
¶ 2 We reverse.
¶ 3 H.C. raises three issues on appeal which we restate as follows:
¶ 4 1. Whether the District Court erred in concluding that H.C.'s treatment plan was appropriate.
¶ 5 2. Whether the District Court abused its discretion in determining that there was clear and convincing evidence that the conduct or condition rendering H.C. unfit was unlikely to change within a reasonable time.
¶ 6 3. Whether the District Court erred in relying on hearsay evidence in its Findings of Fact.
¶ 7 Because we reverse on the first issue, determining that H.C.'s treatment plan was inappropriate, we decline to address the remaining issues.
BACKGROUND
¶ 8 H.C. is the natural mother of A.F.-C., born on August 28, 1997. A.F.-C.'s father is deceased. The Department of Health and Human Services (DPHHS) first became involved with H.C. in July 1997, when it received a referral that H.C. was pregnant and had been caught shoplifting baby clothes. H.C. was fourteen years old at the time and was living under the care of her grandmother, Mavis, and her aunt, Sherry. DPHHS had been involved with H.C.'s family since the early 1980's as a result of reports that H.C.'s father was deceased and her mother was abusing drugs and neglecting H.C. and her older brother, A.C. At the time H.C. was caught shoplifting, her mother, Sandy, was incarcerated for drug-related charges and awaiting federal sentencing.
¶ 9 Prior to giving birth to A.F.-C., H.C. was sent to Havre by Mavis and Sherry to live with Shirley, a friend of the family. H.C. gave birth to A.F.-C. while living with Shirley. Shortly thereafter, Shirley was no longer able to provide a residence for H.C. and A.F.-C., and both were returned to Lakeside in September 1997 to live with Mavis and Sherry, who subsequently contacted DPHHS a number of times regarding H.C.'s parenting of A.F.-C. DPHHS received reports that H.C. had bitten A.F.-C. on the face and had become very frustrated and rough with A.F.-C. DPHHS also received a report that H.C. had not sought medical care for A.F.-C. at any time since his birth even though there was apparently a lump on A.F.-C's chest that may have required medical attention. Based upon these reports, neglect was substantiated by DPHHS.
¶ 10 On December 19, 1997, DPHHS removed H.C. and A.F.-C. from Mavis and Sherry's care and placed them in foster care. DPHHS petitioned the District Court for Temporary Investigative Authority and Protective Services of Sandy's children, H.C. and her brother, A.C., as well as H.C.'s son, A.F.-C., on December 24, 1997. The District Court granted an order for protective services that same day, scheduled a show cause hearing and ordered personal service of the petition to all parties. H.C.'s mother, Sandy, and her grandmother, Mavis, were both served with the petition.
¶ 11 Present at the show cause hearing on February 17, 1998, was Robert B. Allison, Esq. (Mr. Allison), who had been appointed by the District Court as guardian ad litem for A.F.-C. Also present were H.C.'s grandmother *726 Mavis and her aunt Sherry. H.C.'s mother, Sandy, remained incarcerated. The District Court entered an order on February 23, 1998, granting the State's Petition for Temporary Investigative Authority. Neither H.C. nor A.F.-C. were present at the show cause hearing, nor were their whereabouts known at that time.
¶ 12 During a visit to the foster home on January 1, 1998, Mavis arranged to have H.C. and A.F.-C. taken from the foster home and driven to Spokane, Washington, to live with Steve, H.C.'s uncle. Mavis did this without the permission of DPHHS and was subsequently convicted of custodial interference and child endangerment. Soon after discovering that H.C. and A.F.-C. were taken to Spokane, DPHHS attempted to perform a home study of Steve's home through a social worker in Washington. The home study was not completed because it was immediately discovered that H.C. and A.F.-C. had left Steve's home and their whereabouts were unknown.
¶ 13 Although H.C. and A.F.-C.'s whereabouts were unknown at the time, upon the State's motion, the District Court issued an order continuing Temporary Investigative Authority on June 17, 1998. No further contact was made between H.C. and DPHHS until July of 1998, when H.C.'s aunt Shirley contacted DPHHS to inform it that H.C. and A.F.-C. were with her in Kalispell. Foster care training was offered to Shirley and DPHHS eventually licensed her as a kinship placement. H.C. and A.F.-C. remained with Shirley until December 1998.
¶ 14 On October 2, 1998, DPHHS, in a combined petition, petitioned for temporary legal custody of Sandy's children, H.C. and A.C., as well as H.C.'s son, A.F.-C., and requested that the court adjudicate all three children youths in need of care. It is important to note the complexity of H.C.'s position under this combined petition: H.C. was an alleged youth in need of care by reason of her mother's imprisonment and resultant lack of care; yet she was also a respondent-parent within a simultaneous proceeding to adjudicate her son, A.F.-C., a youth in need of care. Personal service of the combined petition upon H.C.'s mother, Sandy, was unsuccessful. H.C. was personally served on November 12, 1998. Neither Sandy nor H.C. were present at the November 18, 1998, hearing on the petition. Mr. Allison appeared at the hearing as guardian ad litem to represent the interests of A.F.-C. No guardian was appointed to represent the interests of fifteen-year-old H.C. as an abused or neglected child. Further, H.C. had no adult assistance in the simultaneous proceeding to adjudicate A.F.-C. a youth in need of care.
¶ 15 Because service of the combined petition on Sandy was unsuccessful, the District Court rescheduled the hearing for temporary legal custody as to her two children, H.C. and A.C. The District Court entered H.C.'s default in her role as a respondent-parent of A.F.-C., and entered default Findings of Fact and Conclusions of Law, based on the State's petition and attached affidavit, adjudicating A.F.-C. a youth in need of care and granting the State's petition for temporary legal custody.
¶ 16 On December 10, 1998, Sandy was served in prison in California with the combined petition. In response, Sandy wrote a letter to the District Court regarding her two children and her grandson A.F.-C. She requested that the court appoint legal counsel for herself, as she did not understand the significance of the proceedings. In the letter, Sandy also relayed to the District Court her understanding that Mr. Allison was the legal counsel for her children, and expressed concern that Mr. Allison had told H.C. that he was not representing H.C. and would not speak to H.C.
¶ 17 Having served Sandy, another hearing on the combined petition was held on January 7, 1999. Sandy, still incarcerated, did not appear. According to the minute entry, H.C. appeared and gave her consent to the State's request for temporary legal custody of her child, A.F.-C. In the order of January 14, 1999, the District Court simply states that H.C. had appeared and "acknowledged her consent to the Petition for Temporary Legal Custody." The District Court found H.C. was a youth in need of care, and ordered that temporary custody of H.C. and her brother A.C. be awarded to the State. The order did not address A.F.-C. Finally, *727 the District Court denied appointment of counsel for Sandy, citing this Court's previous decision for the rule that, "unless termination of parental rights is sought, or other long term interference with the parent/child legal relationship by the Department is sought, appointed counsel is not appropriate."
¶ 18 Previously, in December 1998, placement of H.C. and A.F.-C. with Shirley had broken down for various reasons and both were placed in foster care with Delores Montana Choi (Tanna), a family friend who resided in Kalispell. H.C. and A.F.-C. remained with Tanna for approximately one month. Although H.C. and Tanna both strongly objected to H.C. and A.F.-C. being removed from Tanna's home, DPHHS placed H.C. and A.F.-C. in the mother-baby unit at Florence Crittenton Home & Services (FCH) in Helena in early February 1999.
¶ 19 At FCH, now sixteen-year-old H.C., signed and entered into her second treatment plan dated January 27, 1999, despite her objections to being there. An earlier treatment plan, signed by H.C. on September 18, 1998, had not been approved by the District Court. On February 17, 1999, the District Court approved and ordered that H.C. comply with the second plan. The second plan contained few written responsibilities or requirements, but rather incorporated the first, non-approved treatment plan, and further required that H.C. follow the rules and recommendations made by FCH within it programs, called "programmatic treatment plans."
¶ 20 The initial programmatic treatment plan at FCH required H.C. to adhere to all rules and regulations without argument, to actively participate in Positive Peer Culture, consistently attend all therapy appointments, classes, groups, and recreational activities, be responsible for the care of A.F.-C., demonstrating a willingness to follow staff instruction and supervision, engage in age-appropriate interaction with A.F.-C., enroll A.F.-C. in FCH daycare and abide by daycare guidelines, complete daycare and parenting assignments, refrain from using manipulation and learn healthier alternatives to meet her needs, enroll in high school and consistently attend classes, and refrain from running away.
¶ 21 While at FCH, H.C. entered five subsequent, but essentially similar, FCH programmatic treatment plans within a period of approximately five months. H.C. continued to sign and enter into each subsequent placement program without a guardian ad litem or upon advice of an adult representing her interests. Additionally, although H.C.'s programmatic treatment plans required H.C. to attend individual therapy, H.C. and her counselor, Sue Kronenberg, did not work well together. H.C. testified that she felt like she could not trust her or talk with her. Although on several occasions H.C. refused to meet or participate in counseling with Kronenberg, counseling sessions between H.C. and Kronenberg continued into the first week of October 1999. The staff at FCH attempted to accommodate H.C. by providing her with a different counselor, but for various reasons, other counselors were not available and H.C. did not again begin individual counseling until after proceedings began to terminate her parental rights.
¶ 22 On June 21, 1999, after four months at FCH, it was determined that H.C. was not making enough progress and was failing the mother-baby unit. DPHHS removed A.F.-C. from H.C.'s care at FCH and placed him in foster care. On that same day, H.C. was removed from the mother-baby unit at FCH and placed in the Assisted/Independent Living Program. Whereas the purpose of the mother-baby unit is to teach parenting skills to pregnant, parenting, or a soon to be reunited parent, the assisted living program is for non-pregnant, non-parenting young women who are seriously emotionally disturbed and need a therapeutic, moderate level group home. The assisted living program, although structured similar to the mother-baby program, does not contain any parenting component. However, the programmatic treatment plan in effect from June 6, 1999, to October 21, 1999, continued to require that H.C. participate in individualized parenting classes with a case manager and the class coordinator in the event that A.F.-C. be placed back in H.C.'s care in the future. While living in the assisted living program, H.C. received a *728 weekly one-hour visit with A.F.-C. The visitation was eventually reduced to one hour every other week by February 2000.
¶ 23 The District Court held a permanency plan hearing on July 6, 1999. Although A.F.-C. had been placed in foster care and visitation with H.C. greatly reduced, and although H.C. had been moved from the mother-baby unit to the assisted living program, the District Court entered its order finding that the best interests of H.C. and A.F.-C. would be served if both remained at FCH until H.C. reached 18 years of age, and was able to parent A.F.-C. effectively.
¶ 24 On August 31, 1999, the District Court granted the motion of DPHHS to extend temporary legal custody of A.F.-C. until January 6, 2000. On September 14, 1999, a team meeting was held between DPHHS social worker Hope Hunter, H.C.'s case manager Danielle Gennardo, H.C.'s counselor at FCH, Sue Kronenberg, and H.C. The meeting was held to determine H.C.'s future parenting options of A.F.-C. At the meeting, H.C. was asked whether she would be willing to relinquish parental rights of A.F.-C. and was also informed that, as part of the concurrent planning of DPHHS, steps were being taken to terminate her parental rights and that such termination would be pursued in the following months if she failed to make sufficient progress on the FCH programmatic treatment plan. Sue Kronenberg noted H.C.'s reaction to this meeting in her case note of September 14, 1999, stating that H.C. was "very upset and disagreed with the state (DPHHS) and FCH about [H.C.'s] past parenting."
¶ 25 On November 2, 1999, a family group conference was held at FCH which included H.C. and two of H.C.'s family members, including her uncle Steve, as well as her case manager Emily Hargis, social worker Hope Hunter, and counselor Sue Kronenberg. According to Emily's testimony, the meeting was held to determine where A.F.-C. would go once H.C.'s parental rights were either relinquished or terminated. According to Kronenberg's testimony, her understanding after the meeting was that DPHHS was taking steps to terminate H.C.'s parental rights and that H.C. was not being given another chance to successfully complete the treatment plan or an extension of the treatment plan. According to Emily's testimony, H.C. continued working on the treatment plan only in the hope that the court would decide not to terminate her parental rights. Emily's January 12, 2000, Quarterly Progress Report notes her impression of H.C.'s reaction to the November 2 meeting:
After the conference, [H.C.] stated she thought it was unfair to have everyone attend the conference to talk about what is going to happen if it had already been decided; [H.C.] was upset that no one in her family was able to change DPHHS's mind. This writer reminded [H.C.] that the purpose of the conference was to provide the opportunity for everyone involved to exchange information and to talk about their concerns, not to reconsider the process that has already been started.
¶ 26 By January 26, 2000, Hope Hunter made the determination, based upon reports from case managers at FCH, that H.C. was failing to successfully comply with the October FCH programmatic treatment plan. After making a determination that H.C. again failed to successfully comply with the treatment plan, on January 26, 2000, DPHHS petitioned for permanent legal custody and termination of parental rights as to A.F.-C., alleging that H.C. failed to successfully complete her court-approved treatment plan. In its order of March 2, 2000, the District Court appointed counsel as required by § 41-3-607(2), MCA, to represent the interests of H.C. during the proceeding to terminate her parental rights. Although § 41-3-607(3), MCA, requires the appointment of a guardian ad litem for a minor parent in addition to the minor parent's counsel, one was not appointed.
¶ 27 The District Court held hearings on the petition for permanent legal custody and termination of parental rights on April 14, May 23, and June 8, 2000. The District Court entered its Findings of Fact, Conclusions of Law, and Order on September 29, 2000, terminating H.C.'s parental rights to A.F.-C. and granting permanent care and custody of A.F.-C. to DPHHS with authority to assent to his adoption. The District Court *729 found that the termination of H.C.'s parental rights was appropriate because H.C. failed to comply with an appropriate, court-approved treatment plan and because the conduct or condition of H.C. rendering termination appropriate was unlikely to change within a reasonable time.
¶ 28 H.C. appeals the District Court's Order terminating her parental rights.
STANDARD OF REVIEW
¶ 29 This Court has not specifically defined what constitutes an "appropriate" treatment plan because no bright line definition is possible in light of the unique circumstances of each case. In re A.N., 2000 MT 35, ¶ 26, 298 Mont. 237, ¶ 26, 995 P.2d 427, ¶ 26 (citations omitted). Factors routinely considered, however, are whether the parent was represented by counsel and stipulated to the treatment plan, and whether or not the treatment plan takes into consideration the particular problems facing both the parent and the child. In re A.N., ¶ 26 (citing Custody and Parental Rights of M.M. (1995), 271 Mont. 52, 57, 894 P.2d 298, 301).
DISCUSSION
¶ 30 Whether the District Court erred in determining that H.C.'s treatment plan was appropriate.
¶ 31 A natural parent's right to the care and custody of a child is a fundamental liberty interest. This fundamental liberty interest requires that the State provide a fundamentally fair procedure at all stages in proceedings for the termination of parental rights. In re A.N., ¶ 24 (citations omitted). A minor parent is entitled to the same due process protections and procedures as his or her adult counterpart. Article II, Section 15 of the Montana Constitution provides:
Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protections of such persons.
See In re C.H. (1984), 210 Mont. 184, 202-03, 683 P.2d 931, 940-41.
¶ 32 Here the District Court terminated H.C.'s parental rights pursuant to § 41-3-609(1)(f), MCA (1997), which provides in part:
41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
...
(f) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful;
...
¶ 33 H.C. puts forth four arguments in support of her contention that the treatment plan was inappropriate.
¶ 34 First, H.C. argues that, as both an indigent and a minor at all times during the proceeding, the District Court erred in not appointing counsel to represent H.C.'s interests as a minor parent until the petition for termination of her parental rights was filed in January 2000, long after an opportunity for formal objection to her placement at FCH and formal objection to the treatment plan would have been appropriate or meaningful. H.C. contends that her lack of counsel, combined with her strong objection to placement at FCH, and thus, to the second treatment plan, militates against the appropriateness of the plan.
¶ 35 Second, H.C. argues that her placement in the highly structured residential facility at FCH was inappropriate. H.C. contends that she was more appropriately placed at Tanna's, especially given H.C.'s success in the first treatment plan outside of a residential facility, as well as H.C.'s early independence and inherent distrust of authority figures.
¶ 36 Third, H.C. argues that the treatment plan was inappropriate because it required H.C. to participate in therapy with Sue Kronenberg, an individual she did not trust and could not talk to.
*730 ¶ 37 Finally, H.C. argues that the timeline of events from June 1999, up to the petition for termination of parental rights, demonstrates that the goals of the final parenting plan no longer focused on reuniting H.C. and A.F.-C., nor did the treatment plan take into account the particular problems facing parent and child. Further, H.C. argues that the change in focus of the treatment plan combined with the significant pressures H.C. received shortly thereafter from social workers, therapists, and case managers to either relinquish her parental rights or face termination proceedings further demonstrates that the treatment plan was not appropriate.
¶ 38 Because we reverse on the first argument, we do not reach the other three.
¶ 39 DPHHS notes that H.C. signed both treatment plans and had notice of and signed each successive FCH programmatic treatment plan. It contends that the plans were appropriate because the plans addressed specific behaviors and goals for H.C.'s personal treatment and attempted to provide her with reasonable parenting skills. It further argues that the plans were designed by professionals at FCH based on observations of H.C.'s behavior and her unhealthy adaptions to her past circumstances.
¶ 40 This matter presents the unique circumstance that H.C. was adjudicated a youth in need of care and was simultaneously a minor parent in an abuse and neglect proceeding whose own child was adjudicated a youth in need of care. Further, the record reflects that H.C. was confused as to the role played by A.F.-C.'s guardian ad litem, Robert B. Allison, in that H.C. attempted to contact Mr. Allison in order to obtain legal aid to represent her interests as a minor parent, but was told that Mr. Allison was not her attorney, and would not speak with her. This confusion was shared by H.C.'s mother, Sandy, in her December 19, 1998, letter to the District Court requesting that counsel be appointed to advise her during the proceedings and expressing her concern that H.C. appeared to have been turned away by Mr. Allison and had no counsel to represent her interests.
¶ 41 In its order denying appointment of counsel at the request of H.C.'s mother, the District Court relied on In re T.C. & R.C. (1989), 240 Mont. 308, 784 P.2d 392, which held that due process of law does not require that parents have counsel during the initial stages of child protective proceedings, requiring only that parents have counsel prior to the permanent custody hearings. In re T.C., 240 Mont. at 314, 784 P.2d at 396; Matter of M.F. (1982), 201 Mont. 277, 653 P.2d 1205 (citing Lassiter v. Department of Social Services (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640). In so relying, the District Court concluded that unless termination of parental rights, or other long term interference with the parent/child legal relationship is sought by the Department, "appointed counsel is not appropriate."
¶ 42 While we held in In re T.C., and recently reaffirmed in Matter of M.W & C.S., 2001 MT 78, ¶ 25, 305 Mont. 80, ¶ 25, 23 P.3d 206, ¶ 25, that due process requires appointment of counsel at the proceeding to terminate parental rights, we have not held that appointment of counsel is always "inappropriate" or otherwise precluded during earlier stages of child protective proceedings.
¶ 43 Our holding in In re T.C. is derived from the decision of the United States Supreme Court in Lassiter. In Lassiter, the Supreme Court affirmed the judgment of a North Carolina state court in denying counsel to an indigent parent through the entire proceeding to terminate the parent's parental rights. The Lassiter Court declined to hold that the Constitution requires appointment of counsel in every parental termination proceeding, instead adopting the standard in Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, leaving the decision for whether due process requires appointment of counsel for indigent parents in termination proceedings to the trial and reviewing courts. Lassiter, 452 U.S. at 31-32, 101 S.Ct. at 2162, 68 L.Ed.2d at 652.
¶ 44 The Lassiter Court stated that it "is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements *731... [since the] facts and circumstances... are susceptible of almost infinite variation." Lassiter, 452 U.S. at 32, 101 S.Ct. at 2162, 68 L.Ed.2d at 652-53 (citing Scarpelli, 411 U.S. at 790, 93 S.Ct. at 1764, 36 L.Ed.2d at 666). Likewise, this Court has not formulated any guidelines precluding or making inappropriate the appointment of counsel in child protective proceedings which precede termination proceedings, if due process so requires. Rather, whether due process requires counsel to be appointed at earlier stages in the proceedings must be determined in view of all of the circumstances. See Lassiter, 452 U.S. at 33, 101 S.Ct. at 2163, 68 L.Ed.2d at 653.
¶ 45 In the instant case, H.C. was fourteen and pregnant when DPHHS again became involved in her life after receiving reports of her shoplifting. At that time, and throughout the termination proceedings, H.C.'s mother Sandy was incarcerated, and H.C.'s grandmother, Mavis, and her aunt, Sherry, participated minimally in the proceedings. H.C.'s father was deceased. A.F.-C.'s father was also deceased.
¶ 46 In the combined abuse and neglect proceedings, H.C. was both an abused and neglected youth as well as a minor parent, yet did not receive the benefit of representation. H.C. attempted to obtain legal advice by contacting Mr. Allison, but was told that he was not her attorney. H.C.'s mother wrote to the District Court requesting counsel as well as expressing concern about whether H.C.'s interests were being represented by legal counsel. Neither H.C. nor anyone representing her was present at the hearing to determine whether A.F.-C. was a youth in need of care. Default was therefore entered against her. Further, at the January 7, 1999, hearing which adjudicated H.C. a youth in need of care, H.C. appeared and represented herself and, according to the District Court order, "acknowledged her consent" that temporary custody of herself be awarded to DPHHS. Although H.C.'s involvement in child protective proceedings is not an issue before the Court in this appeal, the prospect of a minor appearing in court, without assistance or representation, and consenting to the State's custody of her own self, is a fact indicative of the failure of due process in this case.
¶ 47 H.C. was fifteen and sixteen respectively when she signed the first and the second treatment plans. H.C. and her foster parent, Tanna, strongly objected to H.C.'s placement at FCH and to the treatment plan, yet H.C. had no adult assistance to help her make an appropriate or meaningful objection in a timely manner to the District Court, and therefore, no such objection was made.
¶ 48 At the June 8, 2000, termination hearing, at which H.C. was represented by counsel, the District Court expressed frustration with H.C.'s counsel for raising for the first time the appropriateness of the treatment plan:
Well, certainly you can make the argument-or present the evidence, number one, that the reason she didn't comply with the treatment plan is because she felt like there was no use in it, ... and, secondly, that it wasn't appropriate to begin with, although that seems to be something that should have been litigated back then, before the court approved it, and not now after the fact.
Unfortunately, H.C., an indigent minor parent, did not have any representation or other adult assistance to make an appropriate and meaningful objection at a time when such objection would have been timely.
¶ 49 While at FCH, H.C. signed and entered into six different FCH programmatic treatment plans as required by the second court-ordered treatment plan. H.C.'s adult advice while living at FCH consisted of counselors who would also eventually testify in the hearing to terminate her parental rights. The testimony of her case manager, Emily Hargis, aptly demonstrates the tension between the support they attempted to offer H.C. and their role as witnesses for DPHHS:
[T]here was a distinction for [H.C.] ... [t]hat she needed support as a mother, ... that she did not receive our support for her individual because we were part of the proceedings, we were testifying in court. Crittenton was testifying in court for the State essentially. And [H.C.] was having trouble distinguishing between our support of her as an individual versus our support of her as a mother to [A.F.-C.].
¶ 50 Although the phrase "due process" cannot be precisely defined, the phrase *732 expresses the requirements of "fundamental fairness." Lassiter, 452 U.S. at 24-25, 101 S.Ct. at 2158, 68 L.Ed.2d at 648. Fundamental fairness requires fair procedures. In re A.N., ¶ 24. It is therefore imperative that the process by which a treatment plan is implemented must be fair.
¶ 51 The significance of adult advice for a minor in the context of proceedings to terminate parental rights is acknowledged in § 41-3-607(3), MCA, which requires in relevant part, that "If a respondent parent is a minor, a guardian ad litem must be appointed to serve the minor parent in addition to any counsel requested by the parent" (emphasis added). In view of the circumstances presented in this matter, we conclude that, in order to preserve the fundamental fairness of the proceedings, due process required that counsel be appointed for H.C. during the formulation of the treatment plan and prior to the District Court's approval of the plan. The District Court erred in not doing so. Therefore, the treatment plan here cannot be deemed appropriate.
¶ 52 The order terminating H.C.'s parental rights to A.F.-C. is reversed.
KARLA M. GRAY, C.J., and JAMES C. NELSON, W. WILLIAM LEAPHART, and TERRY N. TRIEWEILER, JJ., concur.
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248 F.Supp. 632 (1965)
Stanley ROBINSON, Plaintiff,
v.
PARK CENTRAL APARTMENTS et al., Defendants.
No. 533-63.
United States District Court District of Columbia.
December 9, 1965.
*633 Rolland G. Lamensdorf, Washington, D.C., for plaintiff.
William H. Clarke, Washington, D.C., for defendants.
HOLTZOFF, District Judge.
This action to recover damages for personal injuries is being tried without a jury. At the close of the plaintiff's case, the defendants moved to dismiss the complaint for failure to make out a case of liability on the part of either defendant. It must be borne in mind that such a motion performs a different function in a nonjury case than it does at a trial by jury. At a jury trial, such a motion brings up the question whether the plaintiff made out a prima facie case that is sufficient for submission to the jury. In a nonjury case, as appears from Rule 41(b) of the Federal Rules of Civil Procedure, if such a motion is made, the Court, as the trier of the facts, may determine the facts and render a judgment against the plaintiff, or decline to render a judgment at that stage. Such, of course, was the old equity practice that existed before the present Rules.
In this case, the plaintiff was a tenant in an apartment hotel. The hotel was, in part, occupied by permanent guests, and, in part, by transients. It had 317 units, of which 69 were for transient occupancy. The plaintiff, as a permanent tenant, was on his way home shortly after midnight on December 21-22, 1962, and as he alighted from a taxicab, he started to walk across the sidewalk and the adjoining private walkway to the hotel entrance. It had been snowing all day, although the snowfall had ceased prior to this time. It is not disputed that the sidewalk and the approach to *634 the hotel, both of which were of concrete, were covered with a sheet of ice. He slipped on the ice and was hurt.
It is the law of the District of Columbia that the owner of real property is under no duty to keep the sidewalk in front of his property clear of snow and ice for the benefit of pedestrians. The rule is different, however, in respect to invitees. The plaintiff obviously was an invitee. It is a general principle of law that a landlord is required to maintain means of ingress and egress to his building in a reasonably safe condition for tenants and other invitees. In Pessagno v. Euclid Investment Co., 72 App.D.C. 141, 112 F.2d 577, this general principle was held to include a duty on the part of the landlord to keep the approaches to an apartment house, or a hotel, reasonably safe so that invitees would not be injured by the presence of an accumulation of snow or ice on the approaches.
The first question presented here is whether the plaintiff fell on the public sidewalk or on private property consisting of a walkway between the sidewalk and the hotel door. The two were continuous and covered by the same type of concrete. The burden of proof is upon the plaintiff to establish liability by a fair preponderance of the evidence. The plaintiff has not established affirmatively that he fell on private property rather than on a public sidewalk. However, the spot at which he slipped and fell, according to the testimony, is on the very border line between the two. If the place where he fell was a determinative factor, the case would be ruled by Altemus v. Talmadge, 61 App.D.C. 148, 151, 58 F.2d 874, 877, also a decision of the Court of Appeals for this Circuit. In that case, the plaintiff fell on a defect in the sidewalk, a part of which was on private property, and a part on the property of the District of Columbia. The Court held, under those circumstances, that both the District and the owner of the private property were liable.
This Court would go further, however, and would hold that the rule requiring the owner of a multiple dwelling to provide a safe means of ingress and egress obviously is not limited to private property. It must include the portion of the sidewalk immediately adjoining or abutting the entrance to private property. Ordinarily, a person cannot enter a building without first walking on the public sidewalk, and if there is a duty on the part of the building owner to provide a reasonably safe means of ingress and egress, it logically follows that this duty is as applicable to the portion of the public sidewalk that abuts on the property as it is to that portion of the approach that is on the private property. To be sure, in the Pessagno case, the fall took place on a private driveway of an apartment house, but the principle of that case would be equally applicable to the portion of the public sidewalk immediately adjoining or located in front of the building, because without using it a person cannot enter the building.
On either of these grounds, the plaintiff in this case has overcome the first hurdle and has shown himself entitled to recover, if he can establish that his injuries were caused by some negligence on the part of the defendants within the principles just discussed. This brings us to the question whether there is evidence justifying an inference of negligence on the part of the defendants.
In this case, it had been snowing all day, starting about 7:00 o'clock in the morning. The defendants had shifts of workmen shoveling snow off the private walkway and off the sidewalk in front of the building. As soon as they had finished shoveling snow, they would scatter a chemical that would expedite the melting of the snow. More snow fell, and the same operation was repeated.
These operations were, however, suspended for the night at about 9:45 p. m. By the time the plaintiff arrived home at about 12:30 a. m., a sheet of ice had formed on top of the concrete both on *635 the sidewalk adjoining the building and the areaway between the sidewalk and the entrance. If the operations, to which reference has been made, had continued through the evening, it may be fairly inferred that this sheet of ice would not have been permitted to form.
We are dealing here with a combination of an apartment house and a transient hotel. It can be reasonably inferred that in a transient hotel, guests come and go late in an evening, and sometimes in the early hours of the morning. The duty to maintain the approaches to the building reasonably free of snow and ice should be as applicable during the night as during the day. Under the circumstances the Court is of the opinion that on the present state of the evidence, there is a basis for an inference of negligence on the part of the defendants, and if negligence existed, unquestionably it was that negligence that was the proximate cause of the accident.
There is no basis here for any contention of contributory negligence. The plaintiff alighted from the taxicab. He had the right to assume that the approach to the hotel was in reasonably safe condition. He, apparently, did not realize, until he had walked a step or two, that the approaches were covered with a film or layer of ice. By that time, it was too late. Moreover, there is no showing that there was any other way by which he could reach the entrance to the hotel. Bearing in mind that the burden of proof on the issue of contributory negligence is on the defendant, the Court is of the opinion that the evidence, so far introduced, shows no basis of an inference of contributory negligence.
There is one case in this connection that emphasizes the difference between a state of facts where negligence exists and a state of facts where it does not exist. The facts in the Pessagno case, to which reference has been made, were similar to those in the instant case. In C. W. Simpson Co. v. Langley, 76 U.S. App.D.C. 365, 131 F.2d 869, a sleet storm had begun in the early hours of the morning. The janitor arose at 5:00 o'clock in the morning and proceeded to attend to the furnace because he was to furnish heat and, later on, he went outside in order to take care of the conditions of the sidewalk. The plaintiff in that case had fallen on the slippery sidewalk previously to the time when the janitor turned to this task. In other words, there, the accident took place within a couple of hours after the storm began and before it was reasonable to expect the landlord to start taking care of the sidewalk and make it less slippery than the storm had rendered it. The Pessagno case is distinguished on the facts to which I have just referred.
There is one other circumstance to which reference might well be made. The defendants undertook the task of clearing the sidewalk to the same extent that they cleared the private walkway. Even if there was no legal duty to do so, once a person voluntarily undertakes to perform a task, he is held to the requirement that it should be done free of negligence, and if in this case there was negligence in taking care of the private areaway, there was equal negligence in taking care of the public sidewalk.
For all of these reasons, the Court is of the opinion that the case should not be disposed of on this motion, but determined only after the defendants have rested their case.
The motion is denied.
* * *
On Issue of Liability
As this case was tried without a jury the Court tried the issue of liability separately. As the Court stated in its remarks in passing on the motion of the defendants to dismiss the complaint at the close of the plaintiff's case, the plaintiff in this action fell after he alighted from a taxicab and while he was proceeding toward the entrance of the hotel, and slipped on concrete, which was at that time, sometime between midnight and one o'clock in the morning, covered with a sheet of ice resulting from a *636 storm that had been in progress all day long since before daylight. There was a continuous concrete paving beginning with the public sidewalk and going back to a private areaway leading to the hotel entrance which was set back of the sidewalk. The concrete was continuous from the portion of the sidewalk nearest the curb to the front door of the hotel. There was no difference in level and no difference in appearance. Consequently, without a close inspection it might have been difficult to determine exactly where the sidewalk ended and the private walkway began.
The evidence is overwhelming to the effect that the plaintiff fell at a point which was on the borderline between the public sidewalk and the private walkway approaching the hotel building. This appears from Plaintiff's Exhibit No. 1, as well as by other evidence, and even from the testimony of Michael J. Melville called as a witness by the defendant. He testified by deposition.
The Court has already held that as a matter of law the defendants would be liable for negligence irrespective of whether the fall occurred on the private walkway or on the borderline between the private walkway and the public sidewalk or even on the public sidewalk immediately in front of the hotel. The Court has already discussed the authorities bearing upon this aspect of the matter and it will not reiterate that discussion. Suffice it to say that no reason has been shown that the Court deems sufficient for departing from the conclusions of law previously reached on this point. As the Court indicated, it has been held that where there is a defect in the sidewalk which lies in part on District property and in part on private property, both the District of Columbia and the owner of the private property may be held liable. The Court also indicated that, in its opinion, the theory of the Pessagno case is as applicable to an accident happening on a public sidewalk across which a person had to step in order to reach the building, as to an accident occurring on a private walkway between the sidewalk and the building. Finally, the defendants undertook to keep the sidewalk in good condition and, having undertaken to do so, they were under an obligation not to be guilty of any negligence.
We now come to the weather conditions when the accident happened and preceding thereto. Naturally, the best evidence is to be found in the records of the Weather Bureau. These records indicate that precipitation started on December 21, 1962 some time prior to 7 o'clock in the morning, and continued all day long until midnight and that traces of precipitation resumed at 2 o'clock in the morning. The police officer, who naturally is a disinterested witness, and who by reason of his experience and the nature of his work is likely to be a trained observer and to develop a good memory for details, testified that when he inspected the premises shortly after the accident, there was a mist, and further stated that it had snowed for quite some time. The witness Kersey, an employee of the defendants, testified that at 11 o'clock in the evening everything was nice and clear. The Court is of the opinion that Mr. Kersey's recollection is inaccurate on this point, and it accepts the other evidence to which reference has been made.
Accordingly, the Court finds that precipitation in one form or another continued without interruption until after midnight. After the snowfall stopped, the precipitation continued in the form of a freezing rain. There is no dispute over the fact and the Court finds that when the plaintiff fell the sidewalk in front of the hotel and the walkway between the sidewalk and the entrance were covered with a sheet of ice and were slippery. The evidence showed that from 7 o'clock in the morning until 9:45 in the evening employees of the hotel, under the direction of a very alert and efficient resident manager, continuously kept shoveling the snow from in front of the hotel, clearing both the sidewalk and the walkway without distinction. After they had finished shoveling the *637 snow, they scattered a chemical on the sidewalk and walkway, and then after a short rest they again resumed the work of shoveling. This process was continued and was carried on by different shifts of employees, but it ceased at 9:45 p. m. No more clearing was done after that time, and when midnight or one o'clock arrived the area was covered with a sheet of ice.
The question of fact is whether there was a duty on the part of the owner of the apartment hotel to continue some employee at work while the dangerous condition prevailed, even after the reasonable working hours of the day and evening. This is a question of fact rather than a question of law. Were this a jury trial the Court would leave it to the jury. Naturally, the jury would decide it by its verdict, without giving its reasons. The Court, as a trier of the facts, however, deems it appropriate to state its reasons in some detail.
In determining the question whether there was any duty reasonably to continue the work that had been done all day long, after that work ceased at 9:45, we have to consider, first, the character of the property. This property was an apartment hotel containing 317 apartments. In other words, there were 317 tenants in this apartment hotel, no doubt including families, and therefore perhaps there might have been anywhere between 500 and 1,000 people residing in it. Out of these 317 apartments, 60 or more were assigned for transient occupancy. Naturally, there is more going and coming on the part of transient occupants than on the part of permanent residents. The fact that there was no restaurant or cocktail lounge in the building does not seem to the Court to have any effect on the situation. There are many small hotels that no longer have any dining rooms. Suppose, for example, a guest at the hotel had been to the National Theater, which would have been a perfectly laudable and natural thing to do, it would have been probably midnight before he could have returned to the hotel. He would have been as much entitled to safe ingress as a person who had come home from his employment at 5 o'clock in the afternoon.
As a matter of fact, it appears from the deposition of the witness Melville that there was an engineer on duty all night long and that it was a part of his function to participate in clearing the sidewalk if it was necessary. He did not do anything of the sort, so far as the evidence tends to indicate, on the night in question.
The Court is of the view that the situation would be entirely different if this storm had started during the night and the accident occurred early in the morning, before workmen could have reasonably been expected to start clearing the sidewalks and the areaway. Here, however, the storm had continued all day and into the evening. The Court finds that it was negligent to stop the work that had been going on all day and evening and take no precautions for late arrivals. This is the factual distinction made by Judge Groner between the Pessagno and the Simpson cases, to which reference has already been made.
The Court, therefore, finds that the defendants were guilty of negligence in the light of the circumstances that have been summarized, in failing to cause a continuation of the work of keeping the area clear after the hour of 9:45 p. m., and that this negligence was the proximate cause of the accident to the plaintiff.
There remains the question whether the plaintiff was guilty of contributory negligence. The Court, as a trier of the facts, finds as a fact that he was not. To be sure, a person is under a duty to take reasonable care for his own safety. When he alighted from the taxicab and until his feet touched the ground he did not realize that the surface of the street and areaway were icy. I do not believe that he was under any duty to look down on the street before he got out of the taxicab and ascertain the exact state of the condition of the street. It looked clear because there was no snow piled on it. It was night and it is not always *638 easy to detect or discern ice on a stony surface by artificial light, unless one bends down and examines it closely. Once he had put his feet on the ground and stood up, what was he to do? There is no evidence that he ran or was otherwise careless. He had to do his best to proceed forward until he reached the entrance. There is no evidence that there was any other way to get around to the hotel. Under the circumstances, the Court finds that it has not been established by a fair preponderance of the evidence that the plaintiff was guilty of any contributory negligence.
Accordingly, the Court rules that the plaintiff is entitled to recover and the trial will be resumed on the issue of damages.
* * *
On Issue of Damages
In this case the plaintiff sustained a compound comminuted fracture of the left tibia and fibula. He was in the hospital from December 22, 1962 until February 5, 1963, a period of about six weeks. The fracture was set under anesthetics and a cast covering his entire leg almost up to his groin was applied. He was placed in traction. The traction continued until about a week before he left the hospital.
For the first few weeks following his return home he was confined to his apartment and then on occasion, beginning March 1st, he left his apartment to go to his physician's office. He used a crutch until the 1st of October, 1963, when for the first time he was able to put on a shoe. The cast had been removed on July 12th, but he had to continue using a crutch. He returned to work on April 3, 1963 and twice a day went through a very difficult and no doubt painful procedure of climbing the stairs to the second floor, where his employer's office was located.
His doctor testified that there is a permanent shortening of the leg and limitation of motion, as well as stiffness in the foot and ankle and some deformity of the bone. He has a slight limp, according to the doctor, which will, of course, continue permanently, although he has had a satisfactory recovery.
The Court was very much impressed by the plaintiff's frankness in testifying as to his injuries. In personal injury cases we are very often confronted with the spectacle of a plaintiff, if not exaggerating, at least painting in very lurid colors all the harrowing pains that he underwent. There was nothing of this sort here, which made a very good impression on the Court and which increased the Court's confidence in the plaintiff's credibility. He said he has pain occasionally, especially in damp weather. His doctor testified that he would have fatigue after walking a considerable length of time or being on his feet a long time. The plaintiff quite candidly testified that he was not in the habit of walking long periods of time anyway.
So far as special damages are concerned, there is no dispute as to them. The medical and hospital bills and associated expenses amount to $1,909.14. He lost $1,500 in earnings. The total is $3,409.14. There has been no reduction of earning capacity.
There is no doubt in the mind of the Court that the plaintiff underwent a great deal of pain, distress and discomfort, both during hospitalization, which involved the wearing of a cast and being in traction, and also from the use of the crutch. This was not a case of a few days in the hospital; the plaintiff was in the hospital for six weeks. On the other hand, he has had a good recovery and is not in any way disabled from carrying on his usual occupation. All these matters pro and con have to be considered.
The Court will allow for pain and suffering, plus the permanent residual effects of this accident and there were permanent residual effects, as the Court indicated the sum of $12,000. This will mean a total judgment for $15,409.14. That will be the judgment of the Court.
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387 So.2d 1383 (1980)
Curtis ELLIOTT et al., Plaintiffs-Appellees,
v.
AETNA CASUALTY AND SURETY COMPANY et al., Defendants-Appellants.
No. 7657.
Court of Appeal of Louisiana, Third Circuit.
August 20, 1980.
Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
*1384 William Henry Sanders, Jimmie C. Peters, Jena, John King, Baton Rouge, for plaintiffs-appellees.
Before CULPEPPER, SWIFT and STOKER, JJ.
STOKER, Judge.
This is one of three cases consolidated on appeal in this court. The appellants Reginald Murrell and Aetna Casualty and Surety Company complain of the trial court's action in sustaining certain peremptory exceptions filed in response to a reconventional demand and various third party demands filed by them. Exceptions were filed in each suit. The exceptions are primarily based on releases which were given as a result of compromise settlements. These exceptions are denominated as exceptions of res judicata, no right of action and no cause of action.
Reginald Murrell (Murrell) and Aetna Casualty and Surety Company (Aetna) are original defendants in each of the three consolidated cases here and in two of them are the only defendants. Murrell and Aetna seek to bring in the other parties, including State Farm Mutual Automobile Insurance Company (State Farm) in order to establish entitlement to a reduction of any recovery plaintiffs may be granted. This claim for reduction is based on a release given for any liability based on the alleged negligence of Deborah L. Elliott (an alleged joint tortfeasor). In the alternative appellants seek contribution in the event that it is shown that someone else other than Deborah L. Elliott was the driver of a van she was allegedly driving at the time of the accident which gave rise to these suits. Deborah L. Elliott was killed in the accident. In these particular suits the plaintiffs have not sued the parents of Deborah or her insurer. (The Elliotts, parents of Deborah, could have sued State Farm inasmuch as their minor son, Randy L. Elliott, was injured in the accident).
The theory of Murrell and Aetna is that if Deborah L. Elliott was in fact driving the van in question, which was insured by State Farm, then any recoveries must be reduced to one-half because the plaintiffs have given releases to everyone who might be liable as a result of any negligence of Deborah L. Elliott which contributed to the cause of the accident. On the other hand, Murrell and Aetna contend that there is a factual question as to whether Deborah or one of two other persons, Randy L. Elliott or Robert D. Gustafson, was driving. As to Randy and Robert, Murrell and Aetna contend that no releases have been given. Therefore, if the evidence on trial should show that one of these persons was the driver of the van and was a joint tortfeasor with Murrell, then Murrell and Aetna are entitled to contribution from the driver, anyone vicariously liable for the driver's tort, and the driver's omnibus insurer, State Farm.
The reconventional demand and third party demands were brought by Murrell and Aetna to properly position them for the relief they seek from the standpoint of pleading and to bring into the suit the proper parties from whom they seek contribution.
There has been no trial on the merits, and in considering the exceptions we deal here with allegations of fact only. Quite obviously, it is necessary to set forth what the parties allege to be the facts in order to understand the arguments and contentions relative to the exceptions. Therefore, we will outline in some detail the various allegations and set forth the alignment of the parties.
ALLEGATIONS OF FACT AND ALIGNMENT OF THE PARTIES
On January 23, 1978, a van being driven by Deborah L. Elliott was traveling on Louisiana Highway 127 in LaSalle Parish, Louisiana. The vehicle was owned by the driver's parents, Mr. and Mrs. Curtis Elliott, and was insured for liability with State Farm Mutual Automobile Insurance Company. At approximately 8:30 p. m. the van skidded on a muddy area of the highway, *1385 went through the railing on the Mill Creek Bridge and turned over. In the accident Deborah Elliott and guest passenger Rhonda Kleinpeter were killed. Two other passengers in the van, Randy Elliott and Robert Barry Gustafson, were severely injured. The three consolidated cases with which the court is dealing here involve claims asserted by members of the families of the occupants of the van, including claims on behalf of the minors injured in the mishap.
Plaintiffs assert that Reginald Murrell, a logging contractor, through his employees, caused mud to be tracked onto Louisiana Highway 127 a short distance from the accident scene on the day of the accident. Plaintiffs assert further that the mud caused the driver of the van to lose control of the vehicle.
In suit number 7657 in this court, Mr. Curtis Elliott brought suit individually and on behalf of his son, Randy, for damages arising from the injuries sustained by Randy who was a minor at the time the suit was brought. Mr. and Mrs. Elliott assert a wrongful death action for the death of their daughter, Deborah.
In suit number 7658, 387 So.2d 1383, Mr. and Mrs. Carey Kleinpeter brought suit individually for the loss of their daughter, Rhonda Kaye, and further attempted to assert survivors' claims on behalf of two minor sons for the sons' loss of a sister. These latter demands have been made subject to the exceptions of no cause or right of action which are not now before the court.
In suit number 7659, 387 So.2d 1389, Robert D. Gustafson brought suit individually for medical expenses and as administrator of the estate of his son, Robert Barry Gustafson, for personal injuries received by him in the accident.[1]
As previously stated, these three cases are not before the court on the merits but are here on judgments sustaining peremptory exceptions to reconventional and third party demands filed by appellants. The trial court sustained the exceptions. The appeals presently before this court were taken in response to the judgments sustaining the exceptions.
APPEAL NUMBER 7657
We will now address ourselves specifically to the appeal bearing our docket number 7657, Curtis Elliott, et al v. Aetna Casualty and Surety Company. When the appellants, Murrell and Aetna, were made defendants in this suit they filed an answer and also assumed the position of plaintiffs in reconvention and of third party plaintiffs. The following were named as either defendants in reconvention or third party defendants:
(a) CURTIS ELLIOTT, husband of Mrs. Curtis Elliott, and father of the minor, Randy Elliott;
(b) MRS. CURTIS ELLIOTT, wife of Curtis Elliott and mother of the minor, Randy Elliott;
(c) ROBERT D. GUSTAFSON, husband of Mrs. Robert D. Gustafson, and father of Robert Barry Gustafson;
(d) MRS. ROBERT D. GUSTAFSON, wife of Robert D. Gustafson and mother of Robert Barry Gustafson;
(e) ROBERT BARRY GUSTAFSON, a resident of lawful age of LaSalle Parish, Louisiana; and
(f) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as liability insurer of the 1977 Ford van involved in the accident giving rise to this litigation.
*1386 EXCEPTION OF MRS. ROBERT D. GUSTAFSON
The peremptory exception to the third party demand filed by Mrs. Gustafson (Tr. 49 & 50) is specifically denominated as an exception of no cause of action. If it was the intention of Murrell and Aetna to sue her in a representative capacity as mother of Robert Barry Gustafson, no issue has been raised on this score. This peremptory exception of no cause of action was grounded on the fact that during marriage the father of the minor tortfeasor is vicariously liable for any torts of the minor, but the mother is not. LSA-C.C. art. 2318. (Robert Barry Gustafson, the son, was apparently a minor at the time of the accident but is alleged to be of lawful age by appellants and was made a third party defendant individually and in his own right). Mrs. Gustafson's exception of no cause of action is well taken, and the action of the trial court in sustaining her exception is affirmed. Cf. Frazer v. Day, 307 So.2d 733 (La.1975) and Flannigan v. Valliant, 371 So.2d 349 (La.App. 4th Cir., 1979).
EXCEPTIONS OF RES JUDICATA, NO CAUSE OF ACTION AND NO RIGHT OF ACTION
Prior to the institution of any of the three actions under consideration here, State Farm Mutual Automobile Insurance Company entered into three settlement agreements on behalf of itself and its insureds:
1. Curtis Elliott, appearing individually and as administrator of the estate of his minor son Randy, released State Farm and its insureds from liability for the injuries Randy received in the accident (Appeal Number 7657);
2. Mr. and Mrs. Kleinpeter released State Farm and its insureds from any obligation for the death of their daughter, Rhonda Kaye (Appeal Number 7658); and
3. Robert D. Gustafson, appearing individually and administrator of the estate of his minor son, Robert Barry Gustafson, released State Farm and its insureds from liability for the injuries Barry received in the accident. (Appeal Number 7659).
Appellants argue that these settlements were made with reference only to any liability which may have existed on the part of Deborah Elliott-that is, on the assumption she was driver of the van, but if it develops that either Randy Elliott or Barry Gustafson was the driver of the vehicle, the release would not affect the liability flowing from any negligence on their part. Appellants contend that the settlements were with State Farm as the liability insurer of Deborah Elliott, her estate and anyone vicariously liable with her.
To fully understand the position of Murrell and Aetna we will summarize the pleadings filed by them in Appeal Number 7657. In their answer Murrell and Aetna:
1. Denied that the accident in question was in any way caused or contributed to by Murrell or anyone for whom he was legally responsible.
2. Asserted that the sole proximate cause of the accident was negligence and fault of Deborah L. Elliott which was specifically described.
3. Alternatively, Murrell and Aetna pleaded that if Murrell or his agents were at fault and such was a cause of the accident, Deborah L. Elliott's negligence was a contributory cause of the accident which barred any claims of Mr. or Mrs. Elliott.
4. Further, Murrell and Aetna alleged that Deborah L. Elliott may not have been the driver of the van in question and the driver may have been Randy Elliott or Robert Barry Gustafson. If Randy Elliott was the driver, his contributory negligence is pleaded in bar of plaintiffs' recovery.
5. The driver of the van (whoever it was) was operating the van with the permission of the owner and the release *1387 did not contain a specific reservation of rights against Murrell and Aetna. Therefore, the release operated as a release of all joint tortfeasors. (In this respect they rely on LSA-C.C. 2203).
6. Finally, the answer of Murrell and Aetna asserted an alternative claim that the release of the "alleged driver of the van effected a release of a joint tortfeasor and solidary obligor and therefore reduced by one-half (½) the amount of any judgment to which plaintiffs would otherwise be entitled from these defendants."
Then assuming in the alternative the position of plaintiffs in reconvention and third party plaintiffs, Murrell and Aetna made claim against the defendants in reconvention and third party defendants for contribution. We assume that the claim for reduction of recovery to one-half was intended by Murrell and Aetna to apply if Deborah L. Elliott was in fact the driver. If on the other hand, the trial evidence should develop that Randy Elliott or Robert Barry Gustafson was the driver, then inasmuch as there has been no release of their liability, Murrell and Aetna would be entitled to contribution under LSA-C.C. art. 2103.
In the prayer of the answer and incidental demands of Murrell and Aetna they demand rejection of the Elliott suit. In the alternative they demand that any recovery based on Murrell's negligence be reduced to one-half. In the final alternative Murrell and Aetna demand contribution to the extent of one-half of the recovery from all parties they have sued as defendants in reconvention or as third party defendants.
ARGUMENTS OF EXCEPTORS
As we view the controversy the exceptions of res judicata and no cause of action are applicable only to the claim of Murrell and Aetna for contribution. If the facts on trial establish that Deborah Elliott was driving the van and that both she and Murrell or his agents were at fault-and, therefore, jointly at fault, reduction of recovery will be in order. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir., 1964); Cunningham v. Hardware Mutual Casualty Company, 228 So.2d 700 (La. App. 1st Cir., 1969); Mullin v. Skains, 252 La. 1009, 215 So.2d 643 (La.1968).
With respect to the allegations of Murrell and Aetna we are bound by the averment that Randy Elliott or Robert Barry Gustafson may have been driving the van rather than Deborah Elliott. This is so because of the principle that for purposes of an exception of no cause of action allegations of fact by the plaintiff must be accepted as true. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976) and Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The exceptors assert that all of them have judicially confessed that Deborah Elliott was driving the vehicle at the time of the accident. Under the circumstances, so exceptors argue, they are judicially estopped or barred by the doctrine of preclusion from changing their position. Exceptors cite LSA-C.C. art. 2291 and Exchange National Bank of Chicago v. Spalitta, 321 So.2d 338 (La.1975). However this may be, it does not affect Murrell and Aetna or estop them from making the alternative allegations that someone else other than Deborah Elliott was the van driver.
With respect to the exception of res judicata, we are unable to read the three releases as effecting a release of anyone from liability if in fact the van driver was not Deborah Elliott but was either Randy Elliott or Robert Barry Gustafson. This is especially so in view of the averments made in the pleadings filed for the purpose of obtaining approval of minors settlement for Randy Elliott and Robert Barry Gustafson. Therefore, we do not regard the exception of res judicata as being well founded. Therefore, the trial court's ruling in this regard will be reversed.
*1388 In its brief State Farm urges that it has expended the entire amount of their policy limits in making good faith settlements on behalf of Randy Elliott, Rhonda Kleinpeter and Barry Gustafson. If State Farm has expended all of its policy limits, it may constitute a defense to be appropriately asserted, but we fail to see that it has anything to do with the exceptions before us.
Appellees urge that regardless of who was driving, all Murrell and Aetna would be entitled to would be a pro rata reduction in the awards made to the Kleinpeters because of the settlement previously made with them. We agree that if Randy Elliott proved to be the driver, the Elliotts would be barred from recovery by his contributory negligence which has been pleaded as an alternative. However, if Robert Barry Gustafson proved to be the driver, the Elliotts would not be barred. Also, in that event the Gustafsons would be barred by their son's contributory negligence from recovery and so would the son. However, if the facts do show that Robert Barry Gustafson was the driver, then Murrell and Aetna are entitled to assert their claims for contribution from Robert D. Gustafson (the father) and Robert Barry Gustafson (the son) and State Farm as the insurer. It is appropriate in each suit that Murrell and Aetna be permitted to assert their alternative claims to meet any eventuality developed by the evidence.
In the Elliott appeal, number 7657, two exceptions were filed. These exceptions were included in one pleading denominated "PEREMPTORY EXCEPTION TO THIRD PARTY DEMAND". Tr. 49 and 50. The first paragraph is the exception of no cause of action filed on behalf of Mrs. Robert D. Gustafson. Paragraph two is an exception filed solely on behalf of State Farm Mutual Automobile Insurance Company and consists of the exception of res judicata based on the Elliott settlement mentioned above. The judgment on exceptions in the Elliott appeal, number 7657, was signed on October 12, 1979, and sustained both the exception of no cause of action filed on behalf of Mrs. Robert D. Gustafson and the exception of res judicata filed on behalf of State Farm Mutual Automobile Insurance Company. Tr. 63.
In the other two appeals, number 7658 and 7659, general exceptions of no right and of no cause of action were filed. Exceptors in those two cases have not addressed any arguments to support them. As to those two cases, we perceive no grounds for sustaining these exceptions.
For the foregoing reasons, the judgment of the trial court in appeal number 7657, Curtis Elliott, et al v. Aetna Casualty and Surety Company, et al, dated October 12, 1979, is affirmed insofar as it sustained the exception of no cause of action filed by third party defendant-exceptor-appellee, Mrs. Robert D. Gustafson. The judgment of the trial court dated October 12, 1979, is reversed and set aside insofar as it sustained the exception of res judicata filed by third party defendant-exceptor-appellee, State Farm Mutual Automobile Insurance Company, and, as to that exception, this case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed one half to State Farm Mutual Automobile Insurance Company and one half to Aetna Casualty Insurance Company.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
NOTES
[1] Five other lawsuits have been filed by the plaintiffs in these cases as a result of this accident, suing different defendants in each case, generally. Three of those other suits are consolidated with the cases now before this Court of Appeal, but the records in those three other consolidated cases did not come up on this appeal. Mr. and Mrs. Curtis Elliott were unsuccessful in an earlier suit against the State of Louisiana, through the Department of Highways, for alleged negligence on the part of that Department in causing the accident. Elliott v. State of Louisiana, Through the Department of Highways, 372 So.2d 802 (La.App.3rd. Cir., 1979), writ denied, 375 So.2d 647.
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29 So.3d 295 (2010)
REILLY
v.
STATE.
No. 1D09-6156.
District Court of Appeal of Florida, First District.
February 19, 2010.
Decision Without Published Opinion Dismissed.
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264 F.2d 829
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.MIDWESTERN INSTRUMENTS, INC., Respondent.
No. 5944.
United States Court of Appeals Tenth Circuit.
March 6, 1959, Rehearing Denied April 9, 1959.
Francis Sperandeo, Washington, D.C., (Jerome D. Fenton, Thomas J. McDermott, Marcel Mallett-Prevost, Fannie M. Boyls, Washington, D.C., Donald R. Klenk, New York City, on the brief), for petitioner.
R. J. Woolsey and A. Langley Coffey, Tulsa, Okl. (Farmer, Woolsey, Flippo & Bailey, Coffey & Coffey, Tulsa, Okl., on the brief), for respondent.
Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.
HUXMAN, Circuit Judge.
1
This is a conventional enforcement proceeding by the National Labor Relations Board against respondent, Midwestern Instruments, Inc., pursuant to Section 10(e) of the National Laobr Relations Act, 29 U.S.C.A. 160(e). The Board found that respondent violated Section 8(a)(1) and (3) of the Act, 29 U.S.C.A. 158(a) (1, 3) by interrogating employees regarding their union leadership and activities of fellow members, and by discharging employee B. C. Neuman because of his union leadership. Based upon its findings, it issued a cease and desist order requiring respondent to cease and desist from its unlawful conduct, reinstate Neuman, make him financially whole, and post appropriate notices. It is this order which it asks us to enforce.
2
There is substantial conflict in the evidence in this case. There is evidence from which the examiner and the Board could have found that Neuman was discharged for valid reasons and not in violation of the Act, rather than as found by the Board that he was discharged in violation of the Act. Our review is limited to an inquiry whether an examination of the entire record supports the conclusion that the Board's findings are supported by substantial evidence.1
3
There was evidence as follows: Early in March, 1957, employee Neuman sought out the Business Manager of the International Brotherhood of Electrical Workers, Local Union No. 584, AFL-CIO, and arranged with him to call a Union meeting for the purpose of organizing respondent's employees. The seven employees who attended the meeting signed Union authorization cards. The next day Neuman persuaded sixteen other employees to sign similar cards, and during the following weeks enlisted several more members. During this organization period, Charles Cart, a company employee, suggested to Production Superintendent Piester that in the event of a layoff, respondent could rid itself of union adherents by including the leaders in any reduction. Piester rejected this proposal on the ground that it would involve respondent in serious difficulties. He, however, asked Cart whether, as suggested by his layoff proposal, he knew who the union leaders were. Cart replied that he did not. Piester then described an employee who a neighbor had told him was the union leader. The description fitted Neuman.
4
On March 19, the Union's Business Manager telephoned M. E. Morrow, Chairman of the Company's Board of Directors, and informed him of the organizational activities. Morrow told him it would do him no good to organize for he would never get a union in that plant. On the morning of March 20, just before the work shift began, Neuman engaged employee Petra Navarro in a short conversation about the Union. When Neuman left, Supervisor Lowe approached Navarro and asked her whether Neuman had discussed the Union and, in particular, whether he had tried to get her into the Union.
5
On the following morning, Neuman was discharged under these circumstances. It was Neuman's job as a wireman to make oscillograph harnesses, the assembly of which takes from two to three days. Upon the completion of a harness, it is the shop practice for the wireman to take the harness to the harness tester at a nearby bench and wait there for some time2 while the harness is being tested, a process which usually takes only five or ten minutes. No supervisor had ever complained about this practice of waiting while the testing went on. On the morning in question, Neuman completed a harness, took it to harness tester Wood and watched the testing for about ten or fifteen minutes. While Neuman was waiting for the completion of the test, President G. R. Morrow entered the room and paused to talk to Foreman Lowe. During this conversation, Lowe pointed across the room toward Neuman and told Morrow, 'There is the boy that caused the whole deal.' A few minutes later President Morrow went to the office of Superintendent Piester and demanded that Neuman be discharged. As Neuman started back to his bench, Foreman David approached him and announced, 'You are slowing up production and that is a good enough reason to let you go.' Neuman asked if that meant that he was being fired, and received an affirmative reply.
6
Later that same day, the Union's Business Agent Shaull telephoned M. E. Morrow, Chairman of the Company's Board, to protest Neuman's discharge. Admittedly, they had a heated conversation and apparently much profanity was used. According to Shaull's testimony, Morrow said that he would 'fire and ---------- he wanted to * * * that no ----- union was ever going to organize that plant. * * * they had tried it before and didn't have any success' and that 'he would come out and clean out the whole union * * *.'
7
Respondents testified that Neuman was discharged for loafing. That statement, however, must be weighed in the light of all other relevant testimony and deductions drawn therefrom. It is of some significance that no regular employee had even been discharged for loafing or talking too much. David, Neuman's foreman, testified that he had never discharged anyone for loafing or talking too much, and that he knew of no one who had ever been discharged for that reason. There is justification for the conclusion that Neuman's dereliction in this respect became of grave concern only after it was known that he was the leader in the Union Organization movement. The antipathy and antagonism of company officials toward the Union and its aversion toward a union shop are well established by the record.
8
The evidence with respect to the violation of Section 8(a)(1) of the Act is rather meager. There is, however, no conflict in this part of the record. It stands admitted that Superintendent Piester questioned employee Cart as to the identity of the union leaders and that Foreman Lowe questioned Navarro as to whether Neuman had tried to persuade her to join the Union. Such conduct could well intend to influence the employees and interfere with the free exercise of their organizational rights under the Act.
9
The order of the Board will be enforced.
1
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
2
There is some evidence that some electricians would watch the testing for only part of the time required to complete the test. There is also evidence that Neuman was observed at the testing bench for 10 or 15 minutes
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978 F.2d 1262
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Chester PRYOR, Defendant-Appellant.
No. 92-1703.
United States Court of Appeals, Seventh Circuit.
Submitted Oct. 22, 1992.*Decided Nov. 4, 1992.
Before COFFEY and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
ORDER
1
Defendant Chester Pryor pleaded guilty to escape from a correction center and was sentenced to 33 months' imprisonment. Defendant appeals from the district court's finding that he was not entitled to a two level reduction for acceptance of responsibility pursuant to United States Sentencing Guideline § 3E1.1.
Facts
2
In 1990, the 43-year old defendant entered a guilty plea to credit card fraud. As a result, his probation in regard to another offense was revoked. United States v. Pryor, 957 F.2d 478 (7th Cir.1992). On July 29, 1991, defendant was transferred to a community correction center in Indiana. On October 18, 1991, while facing a disciplinary hearing after his urine allegedly tested positive for cocaine, defendant left the community correction center without permission and did not return.
3
On October 31, 1991, defendant was stopped in Illinois for a speeding violation, and was taken into custody. The car which defendant was driving contained a six-inch stack of various credit card applications, some of which had been completed; a false Indiana identification card for defendant in the name of William Briggs; an American Express Card for "Briggs," used on October 19, 1991; a record that "Briggs" had opened a Marshall Field's charge account on October 23, 1991; and stolen credit cards and identification in the name of various individuals.
4
On January 3, 1992, defendant changed his plea, and entered a plea of guilty to one count of escape under 18 U.S.C. § 751(a). The plea agreement stipulated that the government would recommend that defendant receive a two-level reduction for acceptance of responsibility.
5
At the sentencing hearing, defendant testified that the probation officer misunderstood him when he wrote in the PSR that defendant pled guilty "just to get it over with because nobody beats the government." Defendant explained to the court: "[W]hat I really meant was I wanted to get all this behind me. I wanted to hurry and get it over with.... I wanted to try to forget everything that had happened there...."
6
Defendant also testified that "from day one at the halfway house I had had problems." He tried to solve the problems, but "things just got worse and worse" because there was "so much pressure on me there," and the director "was never there and she turned everything over to her staff there and they just didn't seem to understand." For example, on the first day defendant was "written up" and given ten hours extra duty, which he performed, "but the staff forgot to write it down," and he was assigned 25 hours extra duty as a result. When the urine test allegedly revealed cocaine, defendant felt he was being "framed."
7
The district court found that defendant had failed to establish that he accepted responsibility for the escape. The court pointed to the fact that defendant continued to blame all problems on others, that defendant told the probation officer "he had committed no crime, and pleaded guilty only as a gesture toward the inevitable because nobody beats the government." The court sentenced defendant to 33 months imprisonment, which fell within the applicable range of 30 to 37 months' imprisonment.
Discussion
8
Under United States Sentencing Guideline (U.S.S.G.) § 3E1.1, "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the ... criminal conduct," the offense level may be reduced by two levels. Moreover, defendant bears the burden of proving his entitlement to the reduction. United States v. Camargo, 908 F.2d 179 (7th Cir.1990). Because the "sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility," the court's determination "is entitled to great deference on review." Application Note 5. We cannot disturb this decision absent clear error. United States v. Blas, 947 F.2d 1320 (7th Cir.1991), cert. denied, 117 L.Ed.2d 468, 112 S.Ct. 1234 (1992).
9
The Guidelines provide a non-exhaustive list of factors which courts may consider in determining whether a defendant accepted responsibility. In examining those factors, the court here weighed the fact that defendant entered a guilty plea and admitted his involvement in the offense and related conduct, which is "significant evidence of acceptance of responsibility." U.S.S.G. § 3E1.1, Application Note 3. Moreover, his guilty plea came soon after the charges were brought against him. Application Note 1. However, a defendant "who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right." U.S.S.G. § 3E1.1(c). "[T]his evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." Application Note 3. Several other significant factors indicated defendant did not accept responsibility for his crime.
10
The district court properly relied on the fact that defendant escaped from the correction center; travelled to another state; did not voluntarily surrender to the authorities; and was caught 13 days later only after he was stopped for speeding. See United States v. Knorr, 942 F.2d 1217, 1223 (7th Cir.1991) (upholding the denial of reduction for acceptance of responsibility where defendant sought to "equate his conduct with an escapee who ultimately sees the error of his ways and voluntarily surrenders"). The trial court here was free to give significant weight to defendant's failure to voluntarily surrender at any time following his escape.
11
In addition, although at the sentencing hearing defendant denied telling his probation officer that he was pleading guilty "just to get it over with because nobody beats the government," in his brief before this court defendant "does not challenge the district court's finding that he made the statement." The fact that a defendant "[g]rudgingly cooperat[es] with authorities or merely go[es] through the motions of contrition does not oblige a district court to grant an unrepentant criminal the two-step reduction." United States v. Brigman, 953 F.2d 906, 909 (5th Cir.), cert. denied, 61 U.S.L.W. 3255 (1992), citing United States v. Harris, 882 F.2d 902, 906 (4th Cir.1989). See also United States v. Beal, 960 F.2d 629, 635 (7th Cir.) cert. denied, 61 U.S.L.W. 3262 (1992) (a defendant's statements that he "was pleading guilty simply to expedite a transfer," was inconsistent with acceptance of responsibility); United States v. Lueddeke, 908 F.2d 230, 235 (7th Cir.1990) (upholding denial of two-level reduction where defendant "pled guilty [to perjury] only after being confronted with evidence of his perjury"); United States v. Charria, 919 F.2d 842, 849 (2d Cir.1990), cert. denied, 116 L.Ed.2d 38, 112 S.Ct. 62 (1991) (defendant did not accept responsibility where he characterized himself as a mere pawn at presentence interview).
12
The district court was also correct in pointing to defendant's continued attempt to shift blame for his criminal and related conduct. See United States v. Shipley, 963 F.2d 56 (5th Cir.1992), cert. denied, 61 U.S.L.W. 3283 (Oct. 13, 1992). Defendant repeatedly blamed his escape on the fact that the staff at the correction center put too much pressure on him "from day one," and that while he "was doing the best [he] could," the staff continued to "frame" and "threaten" defendant.
13
An additional factor the district court properly considered was that, after his escape, defendant continued to commit offenses similar to the offenses which originally put him in prison. See United States v. Ojo, 916 F.2d 388 (7th Cir.1990) (defendant continues to use false identification after being arrested). In the 13 days between his escape and his recapture, defendant managed to obtain false identification and credit cards, which he used during that brief period.
14
The district court's finding that defendant failed to establish any entitlement to the two-level reduction was not clearly erroneous and was amply supported by the record.
15
Accordingly, the conviction and sentence are AFFIRMED.
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; [email protected]
SJC-12408
FRANKLIN B. ABERNATHY vs. COMMONWEALTH.
May 24, 2018.
Supreme Judicial Court, Superintendence of inferior courts.
Franklin B. Abernathy appeals from a judgment of the county
court denying, without a hearing, his petition for relief under
G. L. c. 211, § 3. In 2014, Abernathy's convictions of breaking
and entering during the daytime with intent to commit a felony
and of possession of burglarious tools were affirmed by the
Appeals Court, and we denied further appellate
review. Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117,
S.C., 469 Mass. 1101 (2014). Abernathy filed a motion for a new
trial, claiming that the indictments were defective. That
motion was denied; the denial was affirmed by the Appeals Court,
and we denied further appellate review. Commonwealth
v. Abernathy, 91 Mass. App. Ct. 1119, S.C., 478 Mass. 1103
(2017). In addition, Abernathy filed his G. L. c. 211, § 3,
petition, which was denied while the latter application for
further appellate review was pending. We affirm the denial of
relief.
Abernathy has filed a memorandum and appendix pursuant to
S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires a party challenging an interlocutory ruling of the
trial court to "set forth the reasons why review of the trial
court decision cannot adequately be obtained on appeal from any
final adverse judgment in the trial court or by other available
means." That rule does not apply, as Abernathy is not
challenging an interlocutory ruling of the trial court.
Nonetheless, it is clear on the record that Abernathy had, and
pursued, an adequate remedy in the ordinary process, namely, his
appeal from the denial of his motion for a new trial. "Our
2
general superintendence power under G. L. c. 211, § 3, is
extraordinary and to be exercised sparingly, not as a substitute
for the normal appellate process or merely to provide an
additional layer of appellate review after the normal process
has run its course." Bishay v. Land Ct. Dep't of the Trial
Court, 477 Mass. 1032, 1033 (2017), quoting Fennick
v. Kittredge, 460 Mass. 1012, (2011). 1
Judgment affirmed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Franklin B. Abernathy, pro se.
1 Abernathy also contends that a systemic problem exists in
the justice system. "This claim is beyond the scope of rule
2:21, which concerns only the alternative remedies, if any,
available to the particular petitioner. Moreover, the single
justice did not decide the petition on the merits or report the
case to the full court to address [the] claim of systemic error,
and we are loath to second-guess [his] discretion in this
respect." Benjamin B. v. Commonwealth, 478 Mass. 1012, 1013 n.3
(2017), citing Jackson v. Commonwealth, 437 Mass. 1008, 1009
(2002).
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174 Ga. App. 525 (1985)
330 S.E.2d 753
SPENCER et al.
v.
McCARLEY MOVING & STORAGE COMPANY, INC. et al.
69548.
Court of Appeals of Georgia.
Decided April 10, 1985.
John D. Allen, for appellants.
Forrest L. Champion, Jr., for appellees.
BEASLEY, Judge.
This is an appeal from the grants of summary judgment to defendants in a suit charging racial discrimination in employment practices.
On July 21, 1983, the plaintiffs, eight black males, filed suit for injunctive relief and damages against United Van Lines ("United"), McCarley Moving & Storage Co., Inc., ("McCarley, Inc.") and Price McCarley as its president and principal officer, alleging, inter alia, that white drivers employed with McCarley Moving & Storage Co., Inc. were placed in higher paying driving jobs, that the company paid overtime selectively to whites, and in other ways, gave more favorable work conditions to white drivers, in violation of the Constitutions of the United States and of our State and of 42 USC § 1981, which provides for equal rights under the law. In addition, appellant plaintiffs alleged that the appellee defendants deprived them of overtime pay and wilfully and maliciously converted these funds to their own use. During the course of proceedings in the trial court, appellants abandoned any initial effort to have the action certified as a class suit.
The defendants filed motions for summary judgment. After hearing and the filing of supplemental affidavits and briefs by the parties, the trial court granted summary judgment to each defendant. Plaintiffs appeal. Held:
1. Appellants' three enumerations of error collectively contend that the trial court erred in the grants of summary judgment as to all defendants.
The third enumeration alleges that the court erroneously granted summary judgment to McCarley, Inc. The question is whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Dunbar v. Green, 229 Ga. 829, 830 (194 SE2d 435) (1972), appeal after remand, 232 Ga. 188 (205 SE2d 854) (1974). No material issue of fact remains as to any actionable tortious conduct by the company by virtue of a violation of 42 USC § 1981; the pleadings have been pierced.
The gravamen of appellants' argument is that because of race they were denied employment as "Long-haul" or permanent lease commission drivers for the company and instead were hired as "short-haul" drivers, that they endured less favorable work conditions, including lower pay and salaried income rather than pay by commission. *526 Also, appellants claim they were never considered for the position of warehouse manager.
An individual invoking 42 USC § 1981 who claims he is the victim of a racially discriminatory hiring decision must show (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons of complaint's qualifications. McDonnell Doughlas Corp. v. Green, 411 U. S. 792, 802 (93 SC 1817, 1824, 36 LE2d 668) (1973); Scarlett v. Seaboard Coast Line R. Co., 676 F2d 1043, 1052 (1982).
The company demonstrated through deposition and affidavits that no issue of material fact remained as to these elements.
In his deposition taken on September 30, 1983, Price McCarley was asked whether or not any blacks had applied to his company for the status of long-haul driver in the last five years. McCarley responded that Early Dunklin was the only black person who had so applied. [1] Of the eight named plaintiffs, only Rutledge, Spencer, Moultrie, Brown, and Hollis filed initial affidavits in opposition to the motions. Nowhere in these affidavits do the parties state that McCarley's company had been seeking applicants for the position of long-haul or commissioned drivers, that they had applied for such openings, that they were qualified for the vacancies, that their applications had been rejected, that the positions sought remained open, and that the company continued to seek applicants from persons with their qualifications.
In his supplementary affidavit of May 23, 1984, McCarley averred, among other things, that plaintiff Brown never applied to take the test to become a long-distance driver and that he lacked the necessary background to be a long-haul driver; that plaintiff Eddie Ford never applied to take the necessary test, had no experience in driving tractor trailers, and had indicated to McCarley on numerous occasions that he did not desire to be away from home for the extended time required of long-distance drivers; that plaintiff Hollis lacked the required experience to drive a tractor trailer and had never applied to take the necessary tests; that plaintiff Spencer likewise lacked required experience and never applied to take the test; that plaintiff Moultrie never applied to become a long-distance driver; that plaintiff Lewis had no driver's license and had never applied to become a driver; that plaintiff Rutledge had no driver's license and had *527 not applied for the position of driver; and that plaintiff Robert Lee Ford also was without a driver's license and had not applied for the subject position of driver. The affidavit continued that "the employment of one to become a long-distance tractor-trailer driver taking long-distance dispatch orders from United under contract is entirely different from a short-haul driver driving a 4-wheel van taking short-haul dispatch orders from McCarley, Inc. It is not a matter of promotion of employees similarly situated within a class; but, instead is a matter of advancement to a different class of employees."
In a later supplemental affidavit, McCarley reiterated the lack of qualifications of Spencer, Moultrie, and Hollis and discussed the requirements for long-distance drivers, stating: "After a person becomes a short-haul driver, in order to become a permanent lease driver, he must attend a van operator's workshop that is required by United, in order to become qualified to be recommended as a permanent lease long distance over the road driver." Only Moultrie, Hollis, and Spencer filed supplemental affidavits, which stated in effect that they had requested the position of long-distance driver, were qualified and had been denied the position. They never stated that they had applied for any actual vacancies or that they had attempted to qualify for the desired position by applying to take the "van operator's workshop" sworn by McCarley to be a mandatory qualification for the position.
Furthermore, none of the plaintiffs pled the elements necessary for a cause of action under 42 USC § 1981 in regard to the position of warehouse manager. See McDonnell Douglas Corp. v. Green and Scarlett v. Seaboard Coast Line R. Co., supra.
If a prima facie showing is made that the moving party in summary judgment is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977). The plaintiffs did not rebut the showing that as to McCarley Moving & Storage Co., Inc., there was no actionable tort based on a violation of 42 USC § 1981.
Appellants also argue that the company was guilty of tortious conduct by violating the equal protection provisions of the State and Federal Constitutions.
Whereas no state action is required to invoke the protections of 42 USC § 1981 (see, e.g., Gonzales v. Fairfax-Brewster School, 363 FSupp. 1200 (1973), aff'd in part and rev'd in part on other grounds 515 F2d 1082 (1975), aff'd 427 U. S. 160 (96 SC 2586, 49 LE2d 415) (1976), such is not the case in an equal protection claim under either the State or Federal Constitutions. In the past, our State Constitution's "equal protection" provisions, through employing different phraseology than than the fourteenth amendment of the United States Constitution, have been held to be substantially equivalent to the equal *528 protection of the laws under the Constitution of the United States. McDaniel v. Thomas, 248 Ga. 632 (285 SE2d 156) (1981). The fourteenth amendment applies only when there is state action (Graves v. Walton County Bd. of Education, 300 FSupp. 188 (1968), aff'd., 410 F2d 1152, 1153 (1969); Jewell v. City of Covington, 425 F2d 459 (1970), cert. denied, 400 U. S. 929 (91 SC 195, 27 LE2d 189) (1970), and protects individuals against state action, not against wrongs done by individuals. United States v. Sutherland, 37 FSupp. 344 (1940); United States v. Guest, 383 U. S. 745 (86 SC 1170, 16 LE2d 239) (1966). There can be instances when the private citizen's conduct may be attributable to the state where the government affirmatively facilitates, encourages, or authorizes the objectionable practice. The relevant inquiry is whether there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself. Jeffries v. Ga. Residential Fin. Auth., 678 F2d 919 (1982), cert. denied, 459 U. S. 971 (103 SC 302, 74 LE2d 283) (1982).
Here, appellants appear to be arguing that McCarley, Inc.'s governmental ties come by virtue of federal contracts through United. It will be unnecessary for this court to determine whether such federal contracts are sufficient governmental nexus so as to constitute state action and invoke the equal protection provisions of the State and Federal Constitutions, for, assuming arguendo the presence of state action in this case, the defendant company successfully hurdled appellants' pleadings as to equal protection claims.
An equal protection claim arises when an individual contends that he is receiving different treatment from that received by other individuals similarly situated; the essence of the claim is that certain action is taken against the plaintiff because of his membership in a particular class and that given the circumstances of the case or the nature of the clients, such action is arbitrary and illegal; the clause is not necessarily violated only upon a showing that similar action was taken against the entire class. Blackley v. Jekyll Island-State Park Auth., 536 FSupp. 236 (1982). A preliminary step in equal protection analysis is to determine whether persons who are similarly situated are subject to disparate treatment. Johnson v. Smith, 696 F2d 1334 (1983). Moreover, a successful equal protection claim requires showing of purposeful discrimination. Smith v. State of Ga., 684 F2d 729 (1982).
We have already noted in our analysis of appellants' claims under 42 USC § 1981, that the company successfully overcame appellants' claims of being qualified for the disputed positions. The appellee company demonstrated that appellants were not similarly situated to those occupying the positions of long-haul driver or warehouse manager. Appellants' response did not rebut the assertion that any disparate *529 treatment was a result of differing qualifications rather than because of race of any other suspect classification. In his first supplementary affidavit, McCarley went into some detail about distinctions in the positions, stating: "The long-haul drivers of McCarley, Inc. are independent contractors, and not employees of McCarley, Inc. Each of them execute a one year (1) written contract, a copy of which is attached hereto as Exhibit 2. They are on the road entirely, and under the contract, cannot be required to work anywhere else, in the warehouse or elsewhere. They are not employed to load or unload. The places of pickup and destination of shipments are given to them by United. Their respective vehicles are leased to United full time. Their work is done without direction of a supervisor. The contracts are terminable at will of either party. They are required to pass an ICC test as to skill and knowledge of operation, must possess tractor-trailer license to operate, and must meet approval of United. The independent contractor pays his own expenses, fuel, labor, and are generally paid by commission. The repairs to the tractor are as provided in the contract. The independent contractors are treated as independent contractors, and not as employees for purposes of withholding tax, social security tax, or otherwise. There is no attempt on the part of McCarley, Inc. to control the time, means and manner of doing the details of the work. The independent contractors, in effect, conduct an independent business, and neither McCarley, Inc. nor United reserves nor exercises any right to control the details of the time, means and manner of doing details of the work. No annual leave or vacation, nor retirement, nor any fringe benefits, insurance or hospitalization is paid to them. Consequently, they are not to be compared with ordinary employees of McCarley, Inc.; and they do not occupy the same or similar position as the short-haul employee drivers included among the Plaintiffs. Employees, on the other hand, are paid on an hourly basis, are required to work in the warehouse, load and unload trucks, and serve as drivers' helpers. One (1) week's vacation leave is allowed after one (1) year of employment; insurance and hospitalization is provided; they work under direction of a supervisor; no special driver's license is required; no approval by United is required except short-haul drivers hauling goods under United's authority. They are treated as employees for purposes [sic] of withholding and social security tax."
Also, McCarley states in the affidavit: "The employees of McCarley, Inc. who are drivers, loaders or unloaders, driver's helpers and packers are not entitled to overtime compensation under the Fair Labor Standards Act, since they are exempt under applicable law from the overtime provisions of the Labor Laws of the United States." Whether or not this is an accurate assessment of the law in this area is immaterial to the propriety of summary judgment as to these questions, *530 since such statements were unrebutted in appellants' responses. No material issues of fact remained as to appellants' claims of racial discrimination in violation of constitutional equal protection.
During oral argument of the instant appeal and in supplemental brief, appellants raise spectres of claims for violations of Title VII, 42 USC § 2000e-2, and of third party beneficiary status for the purpose of standing to claim violation of Executive Order 11246. Appellants' complaint did not allege any cause of action for violation of Title VII or of Executive Order 11246, nor did appellants amend their complaint to include these. Thus, such positions were not a part of the summary judgment of the trial court and cannot be considered on appeal. See Whitaker v. Trust Co. of Columbus, 167 Ga. App. 360, 363 (306 SE2d 329) (1983). See also, Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 40 (207 SE2d 620) (1974); Sowell v. Douglas County Elec. Membership Corp., 150 Ga. App. 520, 521 (258 SE2d 149) (1979).
Appellants' final contention in regard to McCarley, Inc. is that appellants were deprived of overtime pay and that these funds were wilfully and maliciously converted to the company's own use.
In order to present a cause of action for conversion, an act of dominion over the personal property of another inconsistent with his rights or by an unauthorized appropriation must be shown. Kornegay v. Thompson, 157 Ga. App. 558, 559, 560 (278 SE2d 140) (1981). McCarley stated that appellants were not entitled to overtime pay for several specific reasons. This lack of entitlement was not sufficiently addressed by appellants. Since McCarley, Inc. has pierced appellants' contention of right to overtime pay, and thus their very right or interest in the money, the company has effectively pierced any claim of conversion here.
We conclude that the trial court properly granted summary judgment to McCarley Moving & Storage Co., Inc.
2. Appellants' first enumeration of error contends that the trial court erred in granting summary judgment to United. We initially consider appellants' assertion that there was injustice or error in the trial court's grant of summary judgment to United "without the benefit of the Court's ruling on defendant's Motion to Quash Discovery . . . without plaintiff being afforded one iota of his discovery which was initiated so timely." The record does not indicate that the appellants made any motion to compel discovery, nor was there mention or request made to the trial court for leave for further discovery before seeking a ruling on the motions for summary judgment. Indeed, the record indicates that appellants themselves set the hearing date for the motions. This allegation of inequity is without substance.
Appellants base their claims against United under a theory of agency or respondent superior, i.e., under a theory of imputed rather *531 that direct liability for the alleged tortious acts by McCarley, Inc. We need make no determination as to the presence of material issues of fact regarding the existence, validity or extent of any agency relationship between United and McCarley, Inc. Even though a principal is responsible for the torts of his agent when the agent is acting on behalf of the principal (Davis v. U-Haul Co. of Southern Ga., 154 Ga. App. 124, 126 (267 SE2d 633) (1980)), we have already concluded that the alleged agent, McCarley, Inc., as a matter of law could not properly be kept in the present action under the theories of liability pled by appellants.
Consequently, the trial court properly granted summary judgment to United Van Lines, Inc.
3. Lastly, we consider the contention that the trial court erred in granting summary judgment to Price McCarley, the president and principal officer of McCarley, Inc.
Appellants attempt to impute liability to McCarley, maintaining that: "At a minimum, defendant Price McCarley is the alter ego of McCarley Moving and Storage, Inc., as relates to the discriminatory acts complained of by plaintiffs." Inasmuch as we have already determined that there remain no material issues of fact in regard to the corporate liability of McCarley, Inc., appellants' attempt to go behind the corporate veil and affix personal liability on McCarley is without merit. Assuming the propriety of any direct cause of action against McCarley under the theories of recovery pled, appellants' argument for questions of liability here would still be of no moment because of the surmounting evidence presented by appellees in support of their motions for summary judgment and the lack of adequate rebuttal on the part of appellants.
The trial court properly granted summary judgment to Price McCarley.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur.
NOTES
[1] At the time of filing the instant suit, Dunklin was a long-haul driver for the company, and though an attempt to get him to join in the suit was made by plaintiffs, apparently this attempt was later abandoned.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3428
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gerald Lebeau
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Rapid City
____________
Submitted: October 15, 2012
Filed: October 31, 2012
[Unpublished]
____________
Before BYE, BEAM, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Gerald Lebeau appeals the district court's1 reimposition of a special condition
of supervised release following his revocation sentence of three months in prison.
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
Lebeau's supervised release was revoked when he absconded from a community
corrections center and tested positive for cocaine. Lebeau contends that the special
condition requiring that he refrain from consuming alcoholic beverages or
frequenting establishments whose primary business is the sale of alcoholic beverages
was unnecessary and reimposed without individualized findings. Lebeau did not
object to this special condition at his revocation sentencing, and we review for plain
error. United States v. Poitra, 648 F.3d 884, 888 (8th Cir. 2011). We have reviewed
the record and find no plain error. At the revocation hearing, the district court made
individualized findings regarding Lebeau's history of substance abuse and his need
to remain "clean and sober." And, the record reflects that the condition was tailored
to Lebeau's history and characteristics (which included both drug and alcohol
offenses), the deterrence of criminal conduct, the protection of the public, and
Lebeau's correctional needs. See 18 U.S.C. §§ 3553(a), 3583(d) (setting forth factors
the court should consider in ordering special conditions of supervised release). We
also credit the government's argument that had Lebeau not violated the conditions of
supervised release, his special conditions would have remained in effect for three
years following his release from custody in April 2010. We agree that Lebeau should
not be able to benefit from his violations. Accordingly, we affirm.2
______________________________
2
We also reject Lebeau's claim that the district court did not have jurisdiction
over him based upon the 1868 Fort Laramie Treaty. See United States v. Drapeau,
414 F.3d 869, 878 (8th Cir. 2005) (holding that the Fort Laramie Treaty does not
deprive federal courts of subject matter jurisdiction over federal drug trafficking
cases).
-2-
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-10464
Summary Calendar
FAUSTINO RAMOS,
Petitioner-Appellant,
versus
DEPARTMENT OF HOMELAND SECURITY BUREAU OF IMMIGRATION & CUSTOMS
ENFORCEMENT DALLAS TX; U.S. ATTORNEY FOR THE NORTHERN DISTRICT OF
TEXAS, DALLAS DIVISION; U.S. ATTORNEY GENERAL, WASHINGTON, D.C.,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(3:05-CV-476)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Faustino Ramos appeals the denial of a temporary restraining
order (TRO), seeking to enjoin the Department of Homeland Security,
Bureau of Immigration and Customs Enforcement, from detaining him
and removing him from the United States pending a decision on his
adjustment-of-status application. Although his notice of appeal
states he is also appealing the denial of his petition for a writ
*
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.
of habeas corpus under 28 U.S.C. § 2241, the district court did not
rule on that petition. Therefore, only the TRO-denial is at issue.
We lack jurisdiction over a TRO-denial because the ruling does
not qualify as an “injunction” under 28 U.S.C. § 1292(a)(1).
Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir.) (“[I]t is well
settled that this court has no appellate jurisdiction over the
denial of an application for a temporary restraining order”.)
(citing In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990)), cert.
denied, 527 U.S. 1018 (1999). On the other hand, the denial of a
preliminary injunction is ordinarily appealable immediately. See
Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991).
Construing the district court’s order as the denial of a
preliminary injunction, appealable under 28 U.S.C. § 1292(a), the
motion was properly denied. See United States v. Wood, 295 F.2d
772, 778 (5th Cir. 1961) (construing the denial of a TRO as a final
order for appealability purposes in order to preserve determination
of the parties’ substantial rights), cert. denied, 369 U.S. 850
(1962).
An injunction-denial will be reversed only on showing the
district court abused its discretion. Lakedreams, 932 F.2d at
1107. As the district court reasoned in denying relief, Ramos did
not show a substantial threat that failure to enjoin his detention
would result in irreparable injury. Nor did he show a substantial
likelihood of success on the merits of his claim, brought under 28
2
U.S.C. § 2241, challenging his detention and removal as unlawful.
Cf. Cardoso v. Reno, 216 F.3d 512, 516-17 (5th Cir. 2000)
(affirming dismissal of action for lack of jurisdiction under 8
U.S.C. § 1252(g) by plaintiff subject to removal order and seeking
adjustment of status to avoid removal order).
AFFIRMED
3
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Filed 1/13/14 In re Emily B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re EMILY B., a Person Coming Under B248678
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK50260)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTINA B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Debra
Losnik, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
Christina B. (mother) appeals the juvenile court’s jurisdictional findings regarding
her 14-year-old daughter, Emily, as well as the court’s decision to terminate jurisdiction
after awarding custody of Emily to her father, William M. (father). Finding no error, we
affirm.
FACTS AND PROCEDURAL HISTORY1
In 2002, the Department of Children and Family Services (DCFS) filed, and the
juvenile court sustained, a Welfare & Institutions2 Code section 300 petition on behalf of
Emily and her older half-brother Sam, alleging that mother’s substance abuse periodically
rendered her unable to care for her children. The children were suitably placed, mother
received reunification services, and the juvenile court ultimately terminated jurisdiction
with a Family Law Order awarding mother sole legal and physical custody of both
children.
On December 19, 2012, DCFS received a referral that mother and Sam, now an
adult, were using drugs in the home. The referral further alleged that there was “heavy
traffic” of people in and out of the family home, and that Sam had recently burned
Emily’s arm with a cigarette. On December 21, DCFS interviewed mother, who denied
abusing illegal drugs and claimed to have been sober for nearly seven years. Mother said
she knew that Sam was abusing drugs in the home, and had asked him to move out.
Mother also stated that the multiple-unit complex in which the family lived was illegally
built, the electricity to the home had been shut off for safety reasons, and the bank had
recently “seized” the property. The bank was reportedly in the process of demolishing
the complex, but the family did not know when they would be asked to leave the
property. The social worker observed that the home looked as if it were under
1
In accordance with the usual rules on appeal, we state the facts in the light most
favorable to the dependency court’s order. (In re Tania S. (1992) 5 Cal.App.4th 728,
733.)
2
All subsequent section references are to this code.
2
construction, with a hole in the ceiling and no electricity. Mother agreed to provide a
drug test. She also indicated she had sole custody of Emily, but she allowed Emily’s
father to have supervised visits.
On January 8, 2013, DCFS interviewed father, who indicated he had a history of
substance abuse but had been sober for seven years. Father reported that mother
routinely stays up all night and that people come and go from the home during odd hours,
behavior he associates with drug use. Father agreed to submit to a drug test.
On January 9, 2013, DCFS asked mother to submit to an on-demand drug test,
which she agreed to do. A week later, when DCFS contacted the testing center to request
the drug test results, the staff member stated there was no record of mother submitting a
test. When questioned, however, mother produced a receipt showing she had drug tested
on January 9. DCFS received the results of that test on January 23, which indicated
mother had tested positive for methamphetamine. Mother could not account for the
positive result. She later informed DCFS that she had consulted with an attorney who
advised her to not submit to any further drug tests until she was able to alter her diet and
cleanse her system, so that whatever resulted in the “false positive” was no longer in her
body. Mother refused multiple requests for additional drug testing. She offered to
provide a blood or hair sample; the social worker explained that DCFs could only request
urine tests. Mother refused to provide another urine sample until her attorney advised her
otherwise.
The social worker then offered to come to the home and speak with mother and
Emily together in order to create a safety plan. Mother stated she first would have to
speak with her attorney before allowing the social worker to enter her home or speak with
Emily.
On February 1, 2013, DCFS obtained a warrant for Emily’s removal. The social
worker attempted to contact mother, explaining that DCFS wanted to work with mother
to provide support to meet the family’s needs, and left messages for a return call. Mother
did not respond. On February 7, 2013, DCFS executed the warrant and detained Emily
from mother’s custody.
3
DCFS learned that, while father was not a fixture of Emily’s early childhood, the
two had established a “comfortable” relationship prior to the current investigation.
Father had secured medical insurance for Emily and completed paperwork to provide
mother with child support payments. He participated in a Team Decision Meeting and
agreed to act in a protective manner while caring for Emily. Father’s drug test results
were negative. Based on this information, Emily was released to father’s custody.
On February 13, 2013, DCFS filed a section 300 petition on Emily’s behalf, based
on mother’s history of substance abuse and her current methamphetamine use. At the
detention hearing on that date, the juvenile court found father to be Emily’s presumed
father. The court also found a prima facie case for detaining Emily as a minor described
by section 300, subdivision (b). Emily was released to father’s custody. The court
ordered monitored visits for mother.
DCFS interviewed mother, father, and Emily in preparation for the March 21,
2013 jurisdiction/disposition hearing. Mother offered her intimate relations with her
methamphetamine-using boyfriend as an explanation for her positive drug test. She again
denied being a current user of the drug, and indicated that she had not complied with the
drug testing requirements because she was ill. Mother also refused access to her home,
explaining the building was being demolished. DCFS observed a portion of a monitored
visit between mother and child. The social worker noted that the two appeared to have a
close relationship, interacting comfortably with one another.
Father reported that Emily had found drugs and drug paraphernalia in the home
while Sam was living there, and had flushed the drugs down the toilet. She also told
father that mother would stay up all night, and that people would come and go from the
house at odd hours. Emily reported to father than mother did not speak to her for three
days after she had been detained, and that when they finally did speak, mother blamed
Emily for DCFS’s involvement, which was very upsetting to her. DCFS noted that father
was committed to providing Emily with a nurturing and safe environment.
In her interview with DCFS, Emily denied that she had ever seen her mother use
drugs in the home. She felt safe in mother’s custody, and thought that it was “stupid”
4
that her visits with her mother were monitored. Emily stated that in 2011, she lived with
father for a period of eight or nine months. She could give no specific reason for this
arrangement, and said it made no difference to her which parent she lived with. She
wanted both mother and father to have equal custody of her.
Based on the foregoing, DCFS concluded that Emily’s safety could not be assured
in mother’s custody. At the jurisdiction and disposition hearing, it recommended that the
juvenile court declare Emily a dependent of the court, and release her to her father’s
custody. DCFS recommended the court provide father with family maintenance services
and mother with family reunification services.
Mother’s counsel argued the petition should be dismissed. Mother disputed the
drug test results, claiming an issue with the chain of custody because the lab initially had
no record of mother having submitted to the drug test. She also maintained that Emily
was well cared for, and there was no nexus between mother’s alleged drug use and any
risk to Emily.
The juvenile court found Emily to be a minor described by section 300,
subdivision (b), as alleged in the petition.
As to disposition, father noted that he was non-offending, and asked that the
juvenile court terminate jurisdiction with an order granting him custody. Mother asked
that Emily be returned to her custody. Emily’s counsel noted that Emily was mature and
intelligent; she advocated no particular disposition.
The juvenile court declared Emily a dependent of the court, ordered her placed in
father’s custody and, over DCFS’s objection, terminated jurisdiction. The court ordered
monitored visits for mother. Emily was very upset that her visits with her mother would
be monitored.
Mother timely filed a notice of appeal. She maintains there was no substantial
evidence to support either the jurisdictional or dispositional findings and orders.
5
DISCUSSION
1. The jurisdictional findings and orders
Mother challenges the finding that Emily was at risk of physical harm as a result
of mother’s substance abuse. She argues that Emily “had not been harmed in mother’s
care and there was insufficient evidence to prove she would be at substantial risk of harm
in the future.”
We begin with the relevant law. Section 300, subdivision (b) provides that a child
may be declared a dependent of the court when “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to adequately supervise or protect
the child, . . . or by the willful or negligent failure of the parent or guardian to provide the
child with adequate food, clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the parent’s or guardian’s
mental illness, developmental disability, or substance abuse.” (§ 300, subd. (b).)
“‘When the sufficiency of the evidence to support a finding or order is challenged
on appeal, the reviewing court must determine if there is any substantial evidence, that is,
evidence which is reasonable, credible, and of solid value to support the conclusion of the
trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and
in reasonable inferences from the evidence] are to be resolved in favor of the prevailing
party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In
dependency proceedings, a trial court’s determination will not be disturbed unless it
exceeds the bounds of reason. [Citation.]’ (In re Ricardo L. (2003) 109 Cal.App.4th
552, 564.)” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
Here, there was sufficient evidence to support the juvenile court’s jurisdictional
finding over Emily. Mother had a history of substance abuse dating back to 1989, when
she was arrested for possession of a controlled substance. In 2003, her children were
declared dependents of the juvenile court based on her substance abuse, and she had
received services to address her substance abuse issues from 2002 until 2003 and again
from 2007 until 2010. Mother tested positive for methamphetamine in January 2013, and
6
although she disputed the accuracy of that test, she refused all further DCFS requests to
drug test. She admitted that her boyfriend used methamphetamine, and was aware that
her son was using drugs in her home yet permitted him to visit. She resided with Emily
in an apartment exposed to the elements, lacking electricity, and subject to demolition
due to is uninhabitability, and tolerated a parade of visitors coming and going in and out
of the home at all hours of the day and night. This situation is completely inconsistent
with the Legislature’s conclusion that a home environment free from the negative effects
of substance abuse is the minimum condition necessary for the safety, protection and
physical and emotional well-being of a child. (§ 300.2.)
Mother nevertheless argues that jurisdiction over Emily was improperly asserted
because there was insufficient evidence that the child was harmed in mother’s care or that
she was at substantial risk of serious harm in the future. Mother relies on In re Destiny S.
(2012) 210 Cal.App.4th 999 and In re Drake M. (2012) 211 Cal.App.4th 754, to argue
that a parent’s drug use, without more, is not a sufficient basis on which to ground
dependency jurisdiction. As the latter case notes, “Although a finding of substance abuse
is necessary under this prong of section 300, subdivision (b), it does not always follow
that such a finding means that the parent or guardian at issue is unable to provide regular
care resulting in a substantial risk of physical harm to the child. The trial court is in the
best position to determine the degree to which a child is at risk based on an assessment of
all the relevant factors in each case.” (Id. at p. 766.) It went on to explain that in that
case, “At the time of the hearing, Drake was only 14 months old. DCFS needed only to
produce sufficient evidence that father was a substance abuser in order for dependency
jurisdiction to be properly found. DCFS failed to do so.” (Id. at p. 767.)
In the instant case, there was ample evidence that Emily was in fact not well cared
for in mother’s home. She had access to drugs and drug paraphernalia, which were left
where she could find them and use them. Mother was up all night and allowed various
people to come into the home at odd hours. The home itself was problematic because it
had been illegally built, was periodically without electricity, had a hole in the ceiling, and
was scheduled to be demolished. Mother rebuffed DCSF’s efforts to examine the home
7
for safety issues or to speak to Emily. She did not attend the Team Decision Meeting and
refused the social worker’s offer to create a safety plan for Emily’s well-being. All of
these facts, coupled with mother’s history of drug use, provided ample evidence for the
juvenile court to find that Emily was a person described by section 300, subdivision (b).
Additionally, the fact that Emily had not already been harmed in mother’s care is
not a persuasive argument against the juvenile court’s assumption of jurisdiction. The
purpose of dependency proceedings is to prevent risk, not ignore it. (In re Eric B. (1987)
189 Cal.App.3d 996, 1004.) “The idea that state authority can be mobilized only after the
fact is untenable . . . . The state, having substantial interests in preventing the
consequences caused by a perceived danger, is not helpless to act until that danger had
matured into certainty. Reasonable apprehension stands as an accepted basis for the
exercise of state power.” (Id. at p. 1003.)
In sum, the juvenile court’s jurisdictional findings and orders are supported by
substantial evidence.
2. The dispositional findings and orders
Mother also contests the juvenile court’s dispositional orders. Specifically, mother
contends that the return of Emily to mother’s care would not put her at risk of physical
harm, and thus the order awarding custody to father violated section 361, subdivision
(c)(1). She further argues that the court erred in terminating jurisdiction, as the order
deprived her of the opportunity to reunify with her child.
At a disposition hearing, the court may order a child removed from the physical
custody of a parent or guardian if it finds that there is a substantial danger to the health,
safety, protection, or physical or emotional well-being of the child if the child were
returned home, and there are no reasonable means to protect the child without removing
the child from the parents’ or guardians’ physical custody. (§ 361, subd. (c)(l).) A
removal order is reviewed for substantial evidence. (In re Miguel C. (2011) 198
Cal.App.4th 965, 969.)
8
Section 361.2, subdivision (b)(1), states that if the juvenile court places a child
with a parent with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of section 300, the court can
terminate jurisdiction over the child. (§ 361.2, subd. (b)(l).) In considering that option,
the juvenile court’s primary focus is the best interests of the child. (In re John W. (1996)
41 Cal.App.4th 961, 965.) An order terminating jurisdiction with a Family Law exit
order is reviewed for an abuse of discretion, and will not be disturbed on appeal unless
the juvenile court exceeded the bounds of reasons. (Bridget A. v. Superior Court (2007)
148 Cal.App.4th 285, 300.)
Here, the evidence which supported the jurisdiction order also supports the
juvenile court’s decision not to return Emily to mother’s care. Clearly, the court
concluded that mother was using methamphetamines: She consorted with
methamphetamine users, tested positive for the drug, refused to submit to retesting, and
posited multiple explanations both for the “false positive” test results and for avoiding
further testing. The future risk of harm to Emily might be reduced if mother were
addressing her methamphetamine addiction and the deleterious effects it was having on
her daughter. However, mother refused to permit DCFS to speak with Emily and to
evaluate the home, and declined DCFS’s invitation to work together to ensure Emily’s
health and safety. In short, mother’s inability to recognize that the home environment she
had created was harmful to Emily exacerbated the risk of future harm to an unacceptable
level.
Substantial evidence also supports the court’s decision to terminate jurisdiction
after awarding custody to father. That decision was based on the court’s conclusion that
there was no continuing need for the supervision of the court, a finding necessary for
such continued jurisdiction when custody is awarded to a previously non-custodial
parent. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1449.) Indeed, mother points to
no evidence which would support the conclusion that continued court supervision was
necessary to ensure Emily’s health, safety or welfare. Because the juvenile court’s
9
decision to terminate jurisdiction was not “arbitrary, capricious, or patently absurd” (In re
Stephanie M. (1994) 7 Cal.4th 295, 318), we must affirm it.
DISPOSITION
For the reasons set forth above, the juvenile court’s jurisdictional findings and the
order terminating the court’s jurisdiction are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.*
We concur:
MOSK, Acting P. J.
KRIEGLER, J.
*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
10
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574 F.2d 423
Mark KIMBROUGH, Appellant,v.ARKANSAS ACTIVITIES ASSOCIATION, a private non-profitcorporation, and Lee Cassiday, Executive Director, and theBoard of Directors of the Schools of the Little Rock SchoolDistrict, Paul Fair, Superintendent of Schools, Appellees.
No. 77-1715.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 14, 1978.Decided April 18, 1978.
John W. Walker, Walker, Kaplan & Mays, Little Rock, Ark., Sheila Phillips, Research Asst., filed brief for appellant.
Michael W. Mitchell, Little Rock, Ark., filed brief for appellee Ark. Activities Assn.
Robert V. Light, Little Rock, Ark., filed brief for appellee, Little Rock School Dist.
Before HEANEY and STEPHENSON, Circuit Judges, and BECKER, Senior District Judge.*
HEANEY, Circuit Judge.
1
Mark Kimbrough appeals from the District Court's denial of his motion for an award of attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. We reverse and remand.
2
Kimbrough, a black high school student, brought this suit under 42 U.S.C. §§ 1981 and 1983 in July, 1976, challenging a ruling by the Arkansas Activities Association (AAA) and its executive director which held him ineligible for interscholastic athletic competition during his senior year of high school. Kimbrough alleged that the AAA's "Eight Semester Rule"1 was unconstitutional on its face and as applied to him in violation of the equal protection and due process guarantees of the Fourteenth Amendment. He sought declaratory relief and also temporary and permanent injunctive relief, enjoining the AAA and its executive director from prohibiting his participation in the Little Rock School District's Parkview High School football program.2 The compliant also prayed for an award of costs including reasonable attorney's fees.
3
A hearing was held on Kimbrough's application for a temporary injunction on August 2, 1976. At the conclusion of the hearing, the court ruled that the "Eight Semester Rule" and attendant regulations were ambiguous and did not, in the court's judgment, prohibit Kimbrough from participating in interscholastic athletic competition for one more semester. The court, therefore, enjoined the AAA from denying Kimbrough eligibility for such competition through the fall semester of the 1976-1977 school year. Although the court stated that the injunction was granted pendente lite, it also stated that its order was appealable because it effectively disposed of the case.3 An order incorporating the trial court's ruling was issued on August 2, 1976.
4
On March 10, 1977, the District Court requested a report from the parties as to the status of the case. On March 16, 1977, Kimbrough's attorney informed the court that the plaintiff was willing to have the remaining portion of the case dismissed without prejudice. Kimbrough's attorney also stated that the plaintiff felt that an award of costs and attorney's fees was appropriate and that a letter or motion in support thereof would be submitted in the future. The defendants concurred in the voluntary dismissal of the remainder of the case; and on March 18, 1977, an order to that effect was entered by the District Court.
5
Kimbrough submitted a motion to tax costs, including attorney's fees, on May 20, 1977. After a response resisting this motion was filed by the defendants, Kimbrough submitted a memorandum to the trial court in support of his request. On July 29, 1977, the trial court awarded Kimbrough his costs but denied his request for attorney's fees.
6
Kimbrough then filed a motion for reconsideration of his request for attorney's fees, which was denied by the court in a memorandum order dated August 29, 1977. In denying Kimbrough's request for attorney's fees, the court first noted that Kimbrough's original motion to tax costs was not accompanied by a supporting memorandum of law as required by E.D.Ark.R. 8(b). The court went on to note that in the memorandum which Kimbrough later filed, he "failed to address the real issue presented by his request for attorney's fees, i. e., whether an award of attorney's fees can be premised on successfully achieving interim relief rather than actually prevailing on the merits." Since Kimbrough cited no authority in support of an award of attorney's fees under these circumstances, the court concluded that his motion for reconsideration should be denied.
7
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides in relevant part:
8
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
9
It is clear that Kimbrough was the prevailing party as against the AAA and its executive director. The relief which Kimbrough sought was the right to participate in the Parkview High School football program during the fall semester of his senior year. That relief was granted when the trial court enjoined the enforcement of the challenged rules and regulations on the ground that they were ambiguous and thus did not prohibit Kimbrough's participation in interscholastic athletic competition during the fall semester of his senior year. The fact that this relief was granted at a hearing on Kimbrough's request for a preliminary injunction does not change this result, since the injunction was granted as part of a final, appealable order which terminated the controversy. Cf. Inmates of Neb. Penal & Correctional v. Greenholtz, 567 F.2d 1381, 1384 (8th Cir. 1977) (voluntary discontinuance of challenged policy by defendants); Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1977) (litigation settled by voluntary agreement of the parties).
10
The more difficult question as to the applicability of the Act to the instant case is whether the fact that Kimbrough prevailed on a nonconstitutional ground renders the case inappropriate for a discretionary award of attorney's fees. Although the Act states that an award of fees may be made "(i)n any action or proceeding to enforce * * * sections 1981, 1982, 1983, 1985 and 1986 of this title," it does not squarely address the issue as to whether attorney's fees may be awarded when an action is brought under one of the enumerated sections but is decided on a nonconstitutional ground. A footnote to the Report of the House Judiciary Committee which accompanied the Act does, however, expressly approve of an award of fees under these circumstances:
11
To the extent a plaintiff joins a claim under one of the statutes enumerated in (the Act) with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528 (94 S.Ct. 1372, 39 L.Ed.2d 577) (1974). In such cases, if the claim for which fees may be awarded meets the "substantiality" test , see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 (86 S.Ct. 1130, 16 L.Ed.2d 218) (1966), attorneys' fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact". United Mine Workers v. Gibbs, supra at 725 (86 S.Ct. 1130).
12
H.R.Rep.No. 1558, 94th Cong., 2d Sess. 4 n. 7 (1976).
13
Other courts which have considered this issue have followed this unambiguous expression of congressional intent. See Seals v. Quarterly County Court, Etc., 562 F.2d 390, 393-394 (6th Cir. 1977); Southeast Legal Defense Group v. Adams, 436 F.Supp. 891, 884-895 (D.Or.1977). See also Bond v. Stanton, 555 F.2d 172, 174 (7th Cir. 1977).
14
The "substantiality" test to which the House Judiciary Committee refers is jurisdictional in nature. Before federal pendent jurisdiction can be exercised over a non-federal claim, the trial court must make the threshold determination that a substantial federal claim, arising from the same nucleus of operative fact, is raised by the allegations of the complaint. Without the existence of a substantial federal claim, no federal pendent jurisdiction over the non-federal claim exists. Hagans v. Lavine, 415 U.S. 528, 536-539, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); United Mine Workers v. Gibbs, 383 U.S. 715, 722-725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Since the District Court in the instant case invoked jurisdiction and disposed of the case on non-federal grounds, it implicitly made the initial determination that the allegations of the complaint raised a substantial constitutional claim sufficient to confer jurisdiction. See Hagans v. Lavine, supra, 415 U.S. at 538, 94 S.Ct. 1372; Edward Kuhn v. National Association of Letter Carriers,570 F.2d 757, 760 (8th Cir. 1978). We, therefore, conclude that the requirements for a discretionary award of attorney's fees as set forth by the House Judiciary Committee have been met.
15
Our determination that the Act was intended to encompass the instant case does not, of course, require an award of attorney's fees. "(C)ourts have wide discretion in determining whether or not an award of attorney's fees is warranted, giving due consideration to the principle that the prevailing party should recover attorney's fees 'unless special circumstances would render such an award unjust.' " Planned Parenthood v. Citizens for Com. Action, 558 F.2d 861, 870 (8th Cir. 1977), quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). We are unable to determine from the District Court's order whether the court's denial of attorney's fees was based on an erroneous belief that the Act did not authorize an award of fees in this case, or whether it was an exercise of its discretionary power under the Act. We, therefore, reverse and remand the cause to the District Court for a determination as to whether Kimbrough's failure to comply with E.D.Ark.R. 8(b) and any other factors constitute special circumstances which would render an award of attorney's fees for the District Court phase of these proceedings unjust. See International Society for Krishna Consciousness, Inc. v. Andersen, 569 F.2d 1026 (8th Cir. 1978). We award Kimbrough $200 against the AAA and its executive director as a reasonable attorney's fee for the appellate phase of this case. All parties shall otherwise bear their own costs on appeal.
16
Reversed and remanded.
*
The Honorable William H. Becker, Senior District Judge, Western District of Missouri, sitting by designation
1
This rule stated that "(A student) shall become ineligible for interschool contests after attending eight semesters in grades 9-12 inclusive; and further they shall be consecutive." Rule 8(b), Arkansas Activities Association Handbook, at page 25. The AAA ruled that Kimbrough, at the time of the suit, had attended eight semesters in grades 9-12 as defined by the rule and accompanying regulations, and declared him ineligible for further participation in interscholastic athletic competition. The effect of this ruling was to deny Kimbrough the right to participate in such activities during both semesters of his senior year
2
Kimbrough also sought to compel officials of the Little Rock School District to "protect his right to fully participate in all of the activities of Parkview High School on the same basis as the other students." At the hearing which was held on Kimbrough's request for a temporary injunction, the District Court found that these defendants had, in fact, attempted to protect Kimbrough's rights and declined to issue any order against them. Since Kimbrough in no way prevailed as to these defendants, the District Court held that he was not entitled to an award of attorney's fees against them under § 1988. We agree
3
The trial court stated:
I am going to grant the injunction. I might say this is a hearing on the temporary injunction. The ruling I am making here, however, does dispose of the case. It doesn't treat all of the other issues presented, but it simply says there is no rule prohibiting him from playing, and * * * without a rule, he is eligible to go out.
So I think you have a final appealable order on this issue and I am going to * * * enjoin the defendants, I guess pendente lite, on a temporary injunction; but it seems to me clearly an appealable order because it disposes of the entire matter unless the (plaintiff wants) to make a record with respect to other issues that we might take up.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DONALD J. DAVIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7130
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3257, Judge William A.
Moorman.
___________________________
Decided: January 14, 2011
___________________________
DONALD J. DAVIS, of New Windsor, Maryland, pro se.
ALEX P. HONTOS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
DAVIS v. DVA 2
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief was MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel,United States Department of Veterans Affairs, of
Washington, DC
__________________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Donald J. Davis appeals from a final decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”) dismissing his appeal for lack of jurisdiction. We
dismiss the appeal for lack of appellate jurisdiction.
On September 16, 2008, the Board of Veterans’ Ap-
peals issued a decision severing service connection for Mr.
Davis’s left ear hearing loss. The Board also remanded
Mr. Davis’s other claims to the Department of Veterans
Affairs (“DVA”) regional office. Those claims asserted
service connection for a knee injury, lower back pain,
gastroesophageal reflux disease, and sleep apnea. Mr.
Davis then appealed the Board’s decision to the Veterans
Court. The Veterans Court interpreted Mr. Davis’s
appeal not as a challenge to the severance of service
connection for left ear hearing loss, but as a request for
service connection and compensation for his knee injury
and other ailments, the claims that the Board had re-
manded to the regional office.
The Veterans Court dismissed Mr. Davis’s appeal for
want of jurisdiction. Because Mr. Davis did not challenge
the Board’s decision to sever service connection for left ear
hearing loss, the court treated any appeal as to that issue
as abandoned and declined to review the merits of the
Board’s decision as to that claim. In addition, because
there was no final Board decision regarding Mr. Davis’s
3 DAVIS v. DVA
claims to a knee injury and other conditions, all of which
were remanded to the regional office, the court concluded
that there was no argument for the court to address
concerning the merits of the Board decision on appeal.
The court explained that if in the future Mr. Davis re-
ceived an adverse final Board decision with respect to
those claims, he would be free at that time to appeal to
the court. As to Mr. Davis’s assertion that he suffers from
service-connected bilateral hearing loss, which he raised
before the Veterans Court for the first time in his reply
brief, the court stated that he should raise that claim
before the DVA in the first instance. Mr. Davis then
appealed to this court.
Mr. Davis’s appeal to this court does not raise any is-
sues within this court’s jurisdiction. Unless an appeal
presents a constitutional issue, we “may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2). In his informal brief, Mr.
Davis asserts that his medical records were lost and that
he injured his knee while deployed in Honduras in 1996.
Those are factual issues that have not yet been adjudi-
cated by the regional office, reviewed by the Board, and
appealed to the Veterans Court.
The claims for service connection that Mr. Davis sets
forth in his informal brief have been remanded to the
regional office. If he is unsatisfied with the decision
ultimately made by the regional office on those issues, he
may appeal that decision to the Board and ultimately to
the Veterans Court. But until the agency acts on his
claims, neither the Veterans Court nor this court has
jurisdiction to address those claims. Because Mr. Davis
has not raised any legal issue regarding his claims that is
DAVIS v. DVA 4
within the jurisdiction of this court to decide, we dismiss
the appeal.
No costs.
DISMISSED
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PER CURIAM HEADING
NO. 12-03-00180-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JUSTIN THOMAS JONES,§
APPEAL FROM THE 402ND
APPELLANT
V.§
JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§
WOOD COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Appellant has filed a motion to dismiss this appeal. The motion is signed by Appellant and
his counsel. No decision having been delivered by this court, the motion is granted, and the appeal
is dismissed in accordance with Texas Rule of Appellate Procedure 42.2.
Opinion delivered July 23, 2003.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
DO NOT PUBLISH
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567 S.W.2d 281 (1978)
Clarence Gayle GARNER, Appellant,
v.
Nell M. GARNER, Appellee.
No. 5134.
Court of Civil Appeals of Texas, Eastland.
June 15, 1978.
Rehearing Denied July 6, 1978.
Richard D. Coan; Coan, Allen & Terrill, Stephenville, for appellant.
Keith Woodley; Sudderth, Woodley & Dudley, Comanche, for appellee.
RALEIGH BROWN, Justice.
Nell M. Garner sued Clarence Gayle Garner seeking divorce and division of property. Following a nonjury trial, the court entered its judgment divorcing the parties and dividing the property. Clarence Gayle Garner appeals. We dismiss the appeal.
In this appeal, appellant seeks to set aside that portion of the judgment relating to a personal judgment over and against him for $10,700. He states specifically, "No appeal is intended as to the divorce itself nor to any other matters involving the community property of the parties." This demonstrates that appellant has accepted certain benefits under the judgment as to the division of the property.
As a general rule, an appealing party cannot treat an inseverable portion of a judgment as both right and wrong, and if he has voluntarily accepted the benefits of the judgment, he cannot thereafter prosecute an appeal. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950).
*282 The appropriate rule was applied in Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App. San Antonio 1975, writ dism'd), wherein the court said:
"We conclude that complaint may not be limited to the trial court's action with regard to one part of property division where other parts are accepted as the property division must be considered as a whole ..."
See also: Roye v. Roye, 531 S.W.2d 242 (Tex.Civ.App.Tyler 1975, no writ); Clark v. Clark, 362 S.W.2d 655 (Tex.Civ.App. Houston 1962, no writ); Nixon v. Nixon, 348 S.W.2d 438 (Tex.Civ.App.Houston 1961, writ dism'd).
The appeal is dismissed.
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333 F.Supp.2d 1005 (2004)
Russell M. BOLES, Plaintiff,
v.
Gary D. NEET, Defendant.
No. CIV.03-F-557(OES).
United States District Court, D. Colorado.
August 20, 2004.
*1006 Russell Marshall Boles, Canon City, CO, pro se.
James Xavier Quinn, Attorney General's Office, Denver, CO, for Defendant.
ORDER ON PENDING MOTIONS
FIGA, District Judge.
This case, filed pro se by plaintiff Russell M. Boles, comes before the Court on Defendant Neet's Motion to Dismiss (Dkt. # 27), Plaintiff's Motion to Amend Complaint (Dkt.# 40) and Plaintiff's Motion for Summary Judgment (Dkt. # 46). These motions were referred to the Magistrate Judge for recommendation. On July 12, 2004, the Magistrate Judge entered his recommendation on these motions. By order dated July 21, 2004, the plaintiff was granted an extension of time through August 16, 2004 to file objections to the recommendation. By order dated July 27, 2004, defendant was granted an extension of time through August 6, 2004 to file objections to the recommendation. Both *1007 the defendant and plaintiff have timely filed objections to the recommendation of the Magistrate Judge. This Court has considered the objections but finds that the well-reasoned recommendation of the Magistrate Judge should be followed.
Plaintiff, a state inmate at the Fremont Correctional Facility ("FCF"), filed his pro se complaint on April 1, 2003, alleging several claims for violation of his constitutional rights. After initial screening some of the claims were dismissed, but plaintiff was allowed to proceed on claim one, filed against defendant Gary Neet, the warden of FCF alleging "religious discrimination that aggravated a medical condition." The essence of this claim relates occasions, including one that apparently occurred in March 2001, when plaintiff, who alleges he is an Orthodox Jew, was not allowed to wear the religious garments he states are required to be worn by Orthodox Jews[1] while he was being transported outside FCF for medical treatment or surgery. As a result of the denial, plaintiff was not transported and the surgery was postponed for 18 months, or until December 2002, according to plaintiff's complaint.
On September 18, 2003, defendant filed his motion to dismiss. The motion to dismiss argued that defendant was entitled to sovereign immunity if he was being sued in his official capacity and qualified immunity if in his individual capacity. The motion also argued that plaintiff's claim for injunctive relief was moot and that he failed to demonstrate a physical injury so as to allow a claim for damages consistent with the limitations set forth in 42 U.S.C. § 1997(e)(e).
On November 3, 2003, plaintiff filed a motion for leave to file an amended complaint. The amended complaint contained four claims for relief against defendant Neet. The first claim alleged a due process violation; the second claim restated his religious discrimination claim to include a claim for violation of his rights under the First Amendment to the free exercise of his religious beliefs and added a claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") 42 U.S.C. § 2000cc; the third claim alleged a claim for deliberate indifference to his medical needs in violation of the Eighth Amendment; and the fourth claim alleged an "additional fourteenth amendment claim" of systematic discrimination against "Jews, Native Americans ... and occasionally other groups."
Defendant opposed the attempt to amend, arguing that plaintiff's religious discrimination claims were barred for the same reasons set forth in the motion to dismiss. Defendant also argued that amendment of the complaint should be disallowed because the due process claim was futile and the eighth amendment claim was barred by the applicable two-year statute of limitations (see Defendant's response to plaintiff's motion to amend, filled November 24, 2003).
On December 10, 2003, plaintiff moved for summary judgment on the issue of liability and sought to reserve his damages claims for trial.
In his recommendation of July 12, 2004, the Magistrate Judge recommended that the defendant's motion to dismiss be *1008 granted in part and denied in part. He recommended granting that portion of the motion that seeks to dismiss plaintiff's claim for injunctive relief as moot, since the claims that gave rise to the injunctive relief were previously dismissed, and since the regulations relating to wearing Jewish religious garb outside the prison had been specifically amended to permit the wearing of "yarmulke" (skullcaps) and "tallit katan" (worn under the clothing) during transport outside the prison. He also recommended dismissal of the claims that may have been brought against defendant Neet in his official capacity, as such claims for damages are barred by the Eleventh Amendment, and the claims for injunctive relief have been dismissed or were mooted.
In response to the recommendation of the Magistrate Judge, plaintiff's objection appears to argue that the claim for injunctive relief is not moot. In support of this argument, plaintiff has conveniently attached the regulations that apply. The Court notes that the latest of these regulations, bearing an effective date of November 15, 2001, expressly states that Jewish inmates "shall be allowed to wear the `Yarmulke' (skull cap) and the `Tallit Katan' (worn under the clothing), while being transported." Thus it appears that the Magistrate Judge correctly determined that the injunctive relief sought is no longer required, and therefore he correctly dismissed all claims brought against defendant Neet in his official capacity.
The Magistrate Judge also found that the operative complaint in the case would be the amended complaint filed by plaintiff, so long as the claims in the amended complaint cured any deficiencies of the original complaint, and the newly asserted claims would not be futile.
In reviewing the motion to dismiss as it applied to the four claims in the amended complaint, the Magistrate Judge rejected the argument that the two-year statute of limitations barred any claims, but he recommended dismissal of the first, third and fourth claims for relief, on the grounds that plaintiff's claims failed to state claims for relief under Rule 12(b)(6). This Court agrees with the recommendation.
With respect to the first claim for relief, the Magistrate Judge recommended that this Court deny dismissal on the grounds that the claim failed to state a claim for relief, and on the grounds of qualified immunity. The Magistrate Judge found that the plaintiff had stated claims under the First Amendment and under the RLUIPA arising out of the refusal to transport him for medical treatment while wearing his religious garments. Taking the allegations in the amended complaint as true, as the Court must do on a motion to dismiss, the Magistrate Judge found, and this Court agrees, that the first claim for relief in the amended complaint states a proper cause of action.
The Magistrate Judge further found that qualified Immunity did not protect defendant Neet at this stage of the case. Applying the two-part inquiry test articulated in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Magistrate Judge stated that the plaintiff's claims both described potential violations of constitutional rights, and the rights were clearly established at the time of the alleged events.
In reaching this recommendation the Magistrate Judge relied on Tenth Circuit case law holding that a plaintiff sufficiently states a constitutional violation by alleging that prison officials placed an unreasonable burden upon him that diminished his religious practice, citing to Makin v. Colo. Dept. of Corrections, 183 F.3d 1205, 1213 (10th Cir.1999). He further found that the second inquiry of the test for qualified immunity would be framed in this case as "whether the right to a reasonable opportunity *1009 to exercise one's religion was clearly established at the time of the alleged conduct." (Magistrate Judge' recommendation, at 11 referring to Makin, supra, 183 F.3d at 1210, n. 4).
In his objection to this Court, defendant states that the Magistrate Judge described too broadly the second prong of the test. The defendant appears to argue that the right that had to be "clearly established" was the specific right in the particular situation to wear religious garb outside the prison while being transported, and there was no case law to establish this specific right at the time plaintiff was denied transport because he was wearing religious garb. Defendant made a similar argument in its Motion to Dismiss. The Magistrate Judge rejected defendant's formulation of the second prong of the test as too narrow. This Court agrees with the Magistrate Judge on this point and therefore overrules defendant's objection.
While a defendant charged with a constitutional violation receives qualified immunity when the right asserted is not clearly established, the right that has been established does not have to be so fact specific that it is identical to what is alleged in the case at issue, as defendant appears to argue here. To overcome a motion to dismiss the plaintiff must articulate a constitutional right which the defendant violated. To unreasonably limit plaintiff's free exercise of religion is a violation. The limitation of that right does not have to completely prevent a plaintiff from exercising his religious rights. As the Tenth Circuit stated in Makin, supra, "[a] complete denial of the ability to observe a religious practice is not required to demonstrate an infringement" of a prisoner's right to free exercise. 183 F.3d at 1213.
The question remains whether the evidence shows that what defendant did in this case, in light of all the circumstances, was or was not a reasonable restriction on plaintiff's religious rights, given the needs of prison security. In support of his position that his determination to not transport the plaintiff while wearing his yarmulke and "tallit katan" was reasonable, defendant argues to this Court that relevant prison regulations permitted this restriction. A memorandum from defendant to plaintiff, dated April 30, 2001, apparently sent in response to the incident described in the lawsuit, states that transportation of inmates is "defined in AR 300-37 RD." However, the defendant apparently has not assisted the Court by providing a copy of the regulation he claims to have relied upon, and this Court is unable to determine from the record what the referenced policy provided as of March 2001. Defendant's April 30, 2001 memorandum states that the policy, in general, indicated that "offenders will be restrained and dressed in orange jumpsuit and transport shoes." Even assuming this is an accurate representation of the policy, nothing in the policy prohibits the inmate from also wearing a head covering or undergarment during transportation.
On the other hand, plaintiff has provided the regulations he submits were in effect. The Court notes that the memorandum dated March 1, 2001, signed by Lee Hendrix and containing the notation "Please Issue to All Staff," which apparently summarizes the applicable regulations at that date, states protocols with respect to both head coverings and "tallit katan." That memorandum states that head covering may be worn in the cell or at service only, while a standard prison ball cap may be worn in the general population; yet it also states: "Under garment with fringes. May be worn at all times." (Memorandum, p. 2). This could indicate that even during transport outside the prison, at least a standard ball cap (in place of the yarmulke) and specifically the "tallit katan," *1010 may be worn. Moreover, as noted above, by November 15, 2001 the published regulation explicitly permitted the wearing of these items during transport.
Accordingly, at this stage of the case, this Court cannot say as a matter of law that Defendant Neet's determination to prohibit the wearing of such items during transport was a reasonable restriction on plaintiff's free exercise of his religious practices, consistent with prison security needs, such that defendant is entitled to be clothed with qualified immunity. The recommendation of the Magistrate Judge on this point must be accepted.
The Magistrate Judge also recommended that plaintiff's claim under the RLUIPA should be permitted to go forward as plaintiff stated a claim under the statute, and the right to assert such a claim was clearly established at the time of plaintiff's alleged injury. The Magistrate Judge therefore denied defendant's assertion of qualified immunity as to this claim. For the reasons set forth above, this court also finds that defendant's objection to this recommendation of the Magistrate Judge be rejected.
Defendant also urges this Court to overrule the Magistrate Judge's recommendation regarding the application of the two-year statute of limitations. This Court declines to do so. Plaintiff's complaint does not expressly state when the incident(s) regarding denial of transportation occurred. Defendant asserts it occurred on March 5, 2001, and since plaintiff did not file his complaint in this case until March 11, 2003 at the earliest, he filed outside the two-year limitations period. (It appears that plaintiff mailed his complaint on March 11, 2001 and it was received by the Clerk on March 14, 2001, but was not accepted for filing until April 1, 2001.)
Defendant is correct that the Colorado two-year statute of limitations, C.R.S. § 13-80-102, is applicable to this case. As the Magistrate Judge correctly stated, when that statute begins to run is a matter of federal law. A civil rights violation accrues when the plaintiff knows, or has reason to know, of the injury which is the basis for the action. See, e.g., Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir.1998).
Here, plaintiff has alleged not only that his rights were violated in March 2001, but also over a period of time of some eighteen months when he was being denied transport while insisting that he be permitted to wear his religious garb. At a minimum, the documentary evidence of record shows that as of April 30, 2001, defendant was still engaging plaintiff in an exchange over whether his right to be transported wearing his religious garb would be recognized. While the record is not clear, plaintiff may well have refused, or been denied, medical treatment so long as he insisted upon wearing religious items he was not allowed to wear en route. The period during which this impasse occurred may well have spilled over into the applicable two year period. Accordingly, this Court cannot say as a matter of law that plaintiff's constitutional cause of action accrued earlier than two years before that date on which plaintiff filed his civil rights complaint.
CONCLUSION
Plaintiff's Motion to Amend his complaint (Dkt. # 40) is GRANTED and plaintiff's amended complaint is deemed filed as of November 3, 2003;
Defendant's Motion to Dismiss (Dkt. # 27) is GRANTED in part and DENIED in part; and plaintiff's first, third and fourth claims in his amended complaint are dismissed; plaintiff's second claim in his amended complaint may proceed on his claims under the First Amendment and *1011 under RLUIPA; plaintiff's claim for recovery of damages is limited to nominal damages and punitive damages in accordance with the provisions of 42 U.S.C. § 1997(e)(e);
Plaintiff's Motion for Summary Judgment (Dkt. # 46) is DENIED.
NOTES
[1] Plaintiff claims he was denied transport because he insisted on wearing his "yarmulke" (skull cap or head covering) and "tallit katan" (undergarment bearing fringes, or "tzitzit"), worn by some of the Jewish faith to fulfill the commandment appearing in the Bible at the book of Numbers, ch. 15, verse 37 ("make for themselves `tzitzit' fringes on the corners of their garments throughout the ages."). Plaintiff alleges that the Kitzer Shulchan Arukh, (a code of Jewish Law) provides that a Jewish male is forbidden to walk four cubits with his head uncovered or not wearing "tzitzit" during daylight hours.
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62 F.Supp.2d 412 (1999)
INTERNATIONAL CEMENT AGGREGATES, INC., Plaintiff,
v.
ANTILLES CEMENT CORP. and Mateco, Inc., Defendants.
No. Civ. 99-1341(SEC).
United States District Court, D. Puerto Rico.
August 10, 1999.
*413 Murray J. Belman, Thompson Coburn LLP, Washington, D.C., Federico Calaf-Legrand, Reichard & Calaf, San Juan, Puerto Rico, for plaintiff.
Lino J. Saldaña, Saldaña, Saldaña-Egozcue & Vallecillo, PSC, Santurce, Puerto Rico, for defendants.
OPINION AND ORDER
CASELLAS, District Judge.
Pending before the Court is a motion to dismiss for lack of subject matter jurisdiction filed by defendants Antilles Cement Corp. ("ACC") and Mateco, Inc. ("Mateco") (Docket # 10). Upon careful consideration of the parties' arguments and the applicable law, defendants' motion to dismiss is GRANTED.
Plaintiff International Cement Aggregates, Inc. ("ICA") filed an action pursuant to diversity jurisdiction against ACC and Mateco for collection of monies in the amount of $181,181.56. According to plaintiff, on March 5, 1996, ICA and Mateco entered into a contract of sale ("the Contract") to deliver 90,000 metric tons of bagged cement at $74.50 per metric ton. During 1996 and 1997 ICA delivered bagged cement to defendants pursuant to the Contract, and invoiced them for those deliveries in the previously stated amount of $181,181.56. ACC and Mateco refused to pay the amount, claiming that ICA failed to comply with the specific requirements of the Contract.
On June 4, 1997, ICA filed a complaint against defendants in the Court of First Instance of Puerto Rico, Superior Court of Bayamon, titled International Cement Aggregates, Inc. v. Antilles Cement Corp. and Mateco, Inc., Civil No. DCD 97-1234. (Docket # 10, Exhibit A) Defendants then filed a counterclaim requesting specific performance of the contract and claiming $1,600,000.00 in damages for breach of contract. Id., Exhibit B.
On August 28, 1997, ICA filed a motion requesting the dismissal of the defendants' counterclaim on the ground that the court lacked jurisdiction over the breach of contract counterclaim. According to ICA, defendants must arbitrate their counterclaim since paragraph 8 of the Contract reads: "claim arising out of or relating to this agreement or any alleged breach thereof shall be determined by arbitration in New *414 York in accordance with the laws of New York." Id., Exhibits C, D.
On September 11, 1997, ICA filed a motion for judgment on the pleadings based on defendants' admission of the debt. Id., Exhibit E. On September 19, 1997, defendants responded to ICA's motions for judgment on the pleadings and to dismiss the counterclaim. Id., Exhibit F.
On October 9, 1997, the Superior Court of Bayamon denied ICA's motion for judgment on the pleadings. (Docket # 2, ¶ 13) On October 14, 1997, ICA replied to defendants' response. (Docket # 10, Exhibit G) On November 13, 1997, ICA filed a motion for reconsideration. Id., Exhibit H. On January 20, 1998, ICA presented to ACC, as agent of Mateco, a demand letter for arbitration, requesting consent to arbitration within 10 days. (Docket # 2, Exhibit B).
On March 26, 1998, defendants replied to ICA's motion for reconsideration. (Docket # 10, Exhibit K) On April 28, 1998, ICA replied to defendants' response. Id., Exhibit L.
On March 25, 1999, the Superior Court of Bayamon denied both ICA's motion to dismiss defendants' counterclaim based on the arbitration provision (paragraph 8 of the Contract) and ICA's motion for reconsideration of the denial of ICA's petition for judgment. ("March 25th Order") Id., Exhibit N. According to ICA's counsel, ICA did not receive the Court's order until April 5, 1999, four days after ICA filed the present complaint on April 1, 1999. (Docket # 2, ¶ 19)
The present complaint states, in pertinent part, that "Defendants' counterclaim for breach of contract is subject to the arbitration provision, paragraph 8 of the Contract." (Docket # 2, ¶ 23) According to plaintiff, Section 4 of the Federal Arbitration Act (9 U.S.C. § 4) compels a federal district court to issue an injunction directing arbitration against a party that refuses to comply with an arbitration provision, if the party is subject to an agreement to arbitrate. Accordingly, ICA requests this Court to compel defendants to arbitrate their "breach of contract counterclaim" before an arbitration panel and order the Bayamon Superior to stay the same breach of contract counterclaim pending before it. Id., ¶ 26.
For the reasons discussed below, we find that the Rooker-Feldman doctrine mandates dismissal of the above-captioned case for lack of subject matter jurisdiction.
Applicable Case law
It is a well-established principle that "[w]hen a party moves to dismiss a complaint for lack of subject matter jurisdiction, `the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits.'" Robins v. Max Mara, U.S.A., Inc., 914 F.Supp. 1006; 1007 (S.D.N.Y. 1996). "[T]his supplementation does not convert the motion into a Rule 56 summary judgment motion." Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986).
Courts have considerable discretion, under the liberal pleading standard of the Federal Rules of Civil Procedure, to decide when a complaint is formally insufficient and thus, subject to dismissal. Although the Court will not credit bald assertions or mere specious allegations, it will not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir.1991).
Analysis
Lower federal courts generally do not have jurisdiction to review state court decisions; rather, jurisdiction to review such decisions lies exclusively with superior state courts and, ultimately, the United State Supreme Court. This principle is known as the Rooker-Feldman doctrine. See District of Columbia Ct.App. v. Feldman, *415 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). In upholding the doctrine, the Supreme Court stated:
[L]ower federal courts possess no power whatever to sit in direct review of state court decisions. If [the party seeking relief] was adversely affected by the state court's decision, it was free to seek vindication of its federal right in the [state] appellate courts and ultimately, if necessary, in this Court.
Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970); see also 28 U.S.C. § 1257.
As the Court explained, in this nation we have two "essentially separate legal systems." Id. at 286, 90 S.Ct. 1739. The Supreme Court continued: "[T]his dual system could not function if state and federal courts were free to fight each other for control of a particular case. Thus, in order to make the dual system work and to prevent needless friction between state and federal courts, it was necessary to work out lines of demarcation between the two systems." Id. For this reason, federal district courts lack subject matter jurisdiction to review state court decisions. See Feldman, 460 U.S. at 482, 103 S.Ct. 1303.
In the present, in the underlying state action the Bayamon Superior court denied ICA's motion to compel arbitration of defendants' counterclaim. Defendants argue, and this Court agrees, that by filing a petition to compel arbitration in this Court, ICA essentially requests this Court to overturn the state court ruling denying arbitration. This, the Court cannot allow. "Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment." Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring in the judgment).
The Court acknowledges the Second Circuit case cited by ICA, Doctor's Associates, Inc. v. Distajo, 107 F.3d 126 (2nd Cir.1997). In that case, the court failed to discover any cases that applied the Rooker-Feldman doctrine to deprive a district court of subject matter jurisdiction over a petition to compel arbitration pursuant to 9 U.S.C. § 4. However, the party in Distajo filed its petition to compel arbitration before any state court rulings on the merits, whereas a close scrutiny of the circumstances surrounding ICA's filing of the present complaint leads this Court to conclude that ICA filed its arbitration petition immediately after being aware of the Court's adverse ruling.[1] Notwithstanding, ICA's self-serving assurances that it did not receive the Bayamon Court's order denying the reconsideration until four days after it had filed its complaint to compel arbitration, ICA's arbitration petition strikes the Court as an attempt to circumvent the Bayamon Court's ruling and forego the appeal process before the Puerto Rico Court of Appeals and the Supreme Court of Puerto Rico.
Moreover, we reject ICA's contention that the Contract's arbitration provisions encompasses the "breach of contract" counterclaim without extending their penumbra over ICA's claim for the unpaid amounts pursuant to the same contract. ICA pretends to "have his cake and eat it, too": by filing its petition to arbitrate only the defendants' counterclaim without seeking arbitration of its intertwined "collection of monies" claim, ICA seeks to "dance with Laura and Georgina."[2] The Court *416 must cut in and put a stop to this jurisdictional "pas-de-deux."[3]
Upon review of the facts and the applicable case law, we find that this Court lacks subject matter jurisdiction to "review" the Bayamon Court's refusal to dismiss defendants' counterclaim.
ICA's Waiver of Arbitrable Claims
Even assuming, arguendo, that the Court accepted ICA's contention that it filed its arbitration petition prior to its having knowledge of the Bayamon Court's adverse ruling, we would still dismiss the case for lack of subject matter jurisdiction, based on our finding that ICA's extensive litigation of the "breach of contract" counterclaim before the Superior Court of Bayamon constituted a waiver of its right to petition a federal forum to compel arbitration.
As noted by the Second Circuit Court of Appeals in PPG Industries, Inc. v. Webster Auto Parts, Inc., 128 F.3d 103, 106 (2d Cir.1997), "federal policy strongly favors arbitration as an alternative means of dispute resolution." (See also Doctor's Assocs. v. Distajo, 107 F.3d at 130; Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 480-81, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). This preference for arbitration "[has] led to its corollary that any doubts concerning whether there has been a waiver are resolved in favor of arbitration." Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In view of such clear case law, "[w]aiver of arbitration is not to be lightly inferred." Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985)
Such arbitration-friendly policy, however, does not give a party carte blanche to invoke arbitration as a talismanic charm to preclude litigation in the courts of any and all arbitrable claims. A party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party. See Doctor's Assocs., 107 F.3d at 131. "[P]rejudice as defined by our cases refers to the inherent unfairness in terms of delay, expense, or damage to a party's legal position that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue." Doctor's Assocs., Id. at 134. Incurring legal expenses inherent in litigation, without more, is insufficient evidence of prejudice to justify a finding of waiver. Id. However, a party's clear pattern of conduct that evinces its intent to litigate its claims to its ultimate consequences will generally lead to a finding of waiver. For example, a party that engages in extensive pre-trial discovery and compels its adversary to respond to substantive motions waives its right to arbitration. See Com-Tech Assocs. v. Computer Assocs. Int'l, Inc., 938 F.2d 1574, 1576-77 (2d Cir.1991); other courts have found waiver of arbitrable claims when a party delayed invoking arbitration rights by filing multiple appeals and substantive motions while an adversary incurred unnecessary delay and expense, see Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991), or engaged in discovery procedures not available in arbitration, Zwitserse Maatschappij Van Levensverzekering En Lijfrente v. ABN Int'l Capital Mkts. Corp., 996 F.2d 1478, 1480 (2d Cir.1993) (per curiam).
Pursuant to this case law, the Court must evaluate several factors to determine whether ICA has waived its right to arbitration, to wit: (1) the time elapsed from the commencement of litigation to the request for arbitration, (2) the amount of litigation (including any substantive motions and discovery), and (3) proof of prejudice. *417 As noted in Webster, however, there is no bright-line rule, however, for determining when a party has waived its right to arbitration: the determination of waiver depends on the particular facts of each case. Webster Auto Parts, Inc., 128 F.3d at 107.
a. Time Elapsed from Commencement of Litigation
The Bayamon Superior Court litigation commenced on June 4, 1997, and defendants filed their counterclaim on August 8, 1997. ICA filed its petition before this federal forum to compel arbitration on April 1, 1999. Therefore, approximately twenty (20) months passed between the time the defendants asserted arbitrable claims and ICA filed its petition to compel arbitration. This twenty-month delay, by itself, is not enough to infer waiver of arbitration. See Rush, 779 F.2d at 887; Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc., 754 F.2d 457, 461 (2d Cir. 1985). Rather, we must consider the delay in conjunction with (1) the amount of litigation that occurred during that period and (2) any proof that defendants ACC and Mateco were prejudiced by ICA's conduct during that period. See Leadertex v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2d Cir.1995).
b. Amount of Litigation
Before ICA filed its petition to compel arbitration in the present action on April 1, 1999, ICA had engaged in substantial legal skirmishes with defendants spanning a twenty-two month period from June 4, 1997 to March 30, 1999, to wit:
a. June 4, 1997ICA files a complaint against defendants in the Court of First Instance of Puerto Rico, Superior Court of Bayamon (Docket # 10, Exhibit A)
b. Defendants file a counterclaim requesting specific performance of the contract and claiming $1,600,000.00 in damages for breach of contract. Id., Exhibit B.
c. August 28, 1997, ICA files a motion requesting the dismissal of the defendants' counterclaim. Id., Exhibits C, D.
d. September 11, 1997 ICA files a motion for judgment on the pleadings based on defendants' admission of the debt. Id., Exhibit E.
e. September 19, 1997 defendants respond to ICA's motions for judgment on the pleadings and to dismiss the counterclaim. Id., Exhibit F.
f. October 9, 1997, the Superior Court of Bayamon denies ICA's motion for judgment on the pleadings. (Docket # 2, ¶ 13)
g. October 14, 1997 ICA replies to defendants' response. (Docket # 10, Exhibit G)
h. November 13, 1997 ICA files a motion for reconsideration. Id., Exhibit H.
i. January 20, 1998 ICA presents to ACC, as agent of Mateco, a demand letter for arbitration, requesting consent to arbitration within 10 days. (Docket # 2, Exhibit B).
j. March 26, 1998 defendants reply to ICA's motion for reconsideration. (Docket # 10, Exhibit K)
k. April 28, 1998 ICA replies to defendants' response. Id., Exhibit L.
l. March 25, 1999, the Superior Court of Bayamon denies both ICA's motion to dismiss defendants' counterclaim and ICA's motion for reconsideration of the denial of ICA's petition for judgment. ("March 25th Order") Id., Exhibit N.
By engaging in substantial jurisdictional arguments and filing the concomitant substantive motions before the Bayamon Superior Court, ICA evinced a preference for litigation before the Commonwealth Court that supports a finding of waiver of its arbitrable claims. See Leadertex, 67 F.3d *418 at 26; Kramer, 943 F.2d at 179; Com-Tech Assocs., 938 F.2d at 1576-77.
c. Additional Evidence of Intent to Litigate
Other aspects of ICA's conduct support a finding of waiver in the counterclaim before us. First, ICA filed a lengthy motion for reconsideration of the Court's refusal to enter judgment on the pleadings, as well as its extensive petition to arbitrate defendants' counterclaim. See Docket # 10, Exhibits C, D, H. Furthermore, while waiting for months on end on the Bayamon Court's reconsideration ruling, ICA filed several replies to defendants' motion, which reveals both ICA's intention to litigate and its ample opportunity to fully and fairly litigate all the pending controversies before the Bayamon Superior Court. Id., Exhibits G, L.
In conclusion, it is clear that ICA acted inconsistently with its contractual right to arbitration. Therefore, we now consider whether defendants ACC and Mateco were prejudiced by ICA's conduct.
d. Prejudice
Several courts have held that sufficient prejudice to sustain a finding of waiver exists when a party takes advantage of pre-trial discovery not available in arbitration. See Zwitserse, 996 F.2d at 1480; Cotton v. Slone, 4 F.3d 176, 180 (2d Cir. 1993) (basing finding of prejudice on delay and expense caused by defendant's extensive pre-trial litigation as well as defendant's "secur[ing] for himself the benefits of pretrial discovery that is often unavailable in an arbitral forum"); cf. Leadertex, 67 F.3d at 26 (finding that plaintiff was not prejudiced by pre-trial discovery where defendant "obtained no facts in discovery that would have been unavailable in arbitration").
We find that ICA's protracted filing of substantive and procedural motions during a twenty-two month period, coupled with the extensive volley of replies and surreplies fired between the parties during that same period wrought substantial prejudice and drained extensive legal, fiscal and chronological resources from defendants ACC and Mateco. In light of ICA's twenty-two month trench warfare with defendants before the Bayamon Superior Court, and the Bayamon Court's incisive, cogent, thoughtful and thorough analysis of all pending claims between the parties (see Docket # 10, Exhibit N), granting the petition to arbitrate would create serious prejudice not only upon defendants, but also specifically upon the Bayamon Superior Court, who handled the case with deftness and efficiency, and generally upon the Commonwealth Courts of Puerto Rico, upon whom a decision to arbitrate under these facts would generate a "chilling effect" upon many Superior Court judges, who would decline to decide cases with long, thoughtful and time-consuming opinion, lest federal courts vacate their rulings with the stroke of an arbitration-friendly pen.
Conclusion
Under Rule 12(h)(3), "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3); Francis v. Goodman, 81 F.3d 5, 8 (1st Cir.1996) ("federal courts are not at liberty to overlook limitations on their subject matter jurisdiction.") Based on the previous analysis and the facts before this Court, the Court GRANTS Defendants' motion to dismiss, concluding it lacks subject matter jurisdiction. (Docket # 10) Plaintiff's complaint is DISMISSED. Judgment shall follow accordingly.
SO ORDERED.
NOTES
[1] For a similar analysis, see Brown & Roots, Inc. v. Breckenridge, 187 F.R.D. 259 (S.D.W.Va.1999), fn. 2.
[2] This phrase refers to a 19th-century Puerto Rican danza titled "Laura y Georgina", a romantic overture composed by Juan Morel Campos, in which he pays simultaneous romantic homage to Laura and Georgina. Ever since that song came to the public light, a person who seeks to "have it both ways" is said to be seeking to "dance with Laura and Georgina."
[3] The Court also notes the compelling discussion of federalism, comity, and application of Rooker-Feldman to federal jurisdiction of FAA petitions by Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U.Pa.L.Rev. 91, 138 (1998).
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402 F.2d 968
HILAND DAIRY, INC., Reiss Dairy, Inc., and Sunny Hill Farms Dairy Company, Inc., Appellants,v.The KROGER COMPANY, Appellee.
No. 19122.
United States Court of Appeals Eighth Circuit.
October 31, 1968.
COPYRIGHT MATERIAL OMITTED Gray L. Dorsey, Chesterfield, Mo., for appellants; Edward F. O'Herin, of O'Herin & Newberry, Malden, Mo., and Lynn C. Paulson, Washington, D. C., were on the briefs.
Norman K. Diamond, of Arnold & Porter, Washington, D. C., for appellee; Peter K. Bleakley, Washington, D. C., J. Terrell Vaughan and John P. Emde, of Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., and George A. Leonard, Gen. Counsel, The Kroger Co., Cincinnati, Ohio, were on the brief.
Before VAN OOSTERHOUT, Chief Judge, and GIBSON and BRIGHT, Circuit Judges.
GIBSON, Circuit Judge.
1
Appellants, plaintiffs below, seek a trial on the merits of their class complaint against appellee, The Kroger Company, for an alleged attempt to monopolize the milk and dairy business in the St. Louis, Mo., Trade Territory in violation of § 2 of the Sherman Anti-Trust Act, 15 U.S.C. § 2. The District Court1 dismissed the complaint on motion for failure to state a claim on which relief could be granted.
2
The plaintiffs, Highland Dairy, Inc., Reiss Dairy, Inc., and Sunny Hill Farms Dairy Company, Inc., are engaged in the buying and processing of raw milk and distributing and processing of fluid milk and other dairy products at wholesale and retail in the St. Louis, Mo., Trade Territory, a geographical area denominated by them as an area within 250 miles more or less of St. Louis, Missouri. Highland Dairy has its principal office at Springfield, Missouri; Reiss Dairy at Sikeston, Missouri; and Sunny Hill Farms Dairy at Cape Girardeau, Missouri. Defendant, The Kroger Company, operates a national chain of retail grocery stores approximately 1500 in number located in 30 states, with its principal office at Cincinnati, Ohio. It is alleged to be the second largest retail food chain in the United States and has net annual sales exceeding 2.6 billion dollars. In addition to the retail stores, Kroger operates other plants and businesses, bakeries, dairies, a coffee roasting plant and various food and non-edible product enterprises that complement and are allied to its overall operation as a food chain. It has more than 200 retail stores in the St. Louis Trade Territory (located in Missouri, Iowa, Illinois, Kentucky, Tennessee, and Arkansas) in which it sells approximately 8 per cent of the processed fluid milk and other dairy products at the retail level. The plaintiffs-appellants will be referred to in this opinion as "plaintiffs" and the defendant-appellee as either "defendant" or "Kroger."
3
Plaintiffs' complaint seeks to enjoin Kroger from building a dairy processing plant in the St. Louis Trade area, having a capacity to supply more than 20 per cent of the total consumers' demand, on the basis that such plant would give Kroger the power to impose unreasonable restrictions on the sale and distribution of fluid milk and other dairy products in interstate trade and would constitute an attempt to monopolize in violation of § 2 of the Sherman Anti-Trust Act.
4
This is not a case of a conspiracy, combination or merger to violate §§ 1 and 2 of the Sherman Act, nor is it one based on the commission of acts, lawful or otherwise, that place an unreasonable restriction on competition or lessen competition; but represents an attempt to keep Kroger out of the dairy field on the charge in the complaint that the entry into this field constitutes an attempt to monopolize under § 2 of the Act. The gist of the complaint is that the building of the plant with the specific intent to monopolize constitutes a proscribed attempt to monopolize under § 2.2
5
Plaintiffs' position is that the purpose of §§ 1 and 2 of the Sherman Anti-Trust Act is to prevent monopolistic restrictions on competition and that every act or transaction, regardless of form, that has for its purpose the restriction of competition is prohibited under the Act. They recognize the teaching of Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911) that qualifies the proscription to unreasonable restrictive acts as noted at p. 58, p. 515 of 31 S.Ct.: "all contracts or acts which were unreasonably restrictive of competitive conditions" and at p. 60, 31 S.Ct. 502 to any "undue restraint" of commerce, as measured by the common law standard of reasonableness. Contracts or acts under the common law standard could be unreasonably restrictive (1) when inherently so, "from the nature or character of the contract or act" (2) inferentially, where "the surrounding circumstances" are such as to justify the conclusion that they were entered into not for bona fide competitive reasons but in order to gain by injuring competition through price, production, or quality control, Standard Oil, supra at 58, 31 S.Ct. 502.3
6
The essential doctrines of Standard Oil have been adhered to by the Court in succeeding cases. Concededly, the purpose of the Sherman Act is to preserve a system of free competition. This means no unreasonable or undue restraints are to be imposed on our competitive economic system so as to hinder or retard the free interplay of vital competition in the marketplace. The public is to be protected from the evils incident to monopolistic practices.
7
Plaintiffs admit that under § 2 the attempt to monopolize must be "likely to accomplish" monopolization, Kansas City Star Company v. United States, 240 F.2d 643, 663 (8 Cir. 1957), cert. denied 354 U.S. 923, 77 S.Ct. 1381, 1 L. Ed.2d 1438, or afford a "dangerous probability of" monopolization, American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Specific intent to monopolize must be well pleaded and proved. They, however, contend that Kroger's acquisition by internal expansion of a dairy facility with capacity to supply 20 per cent of the market would be likely to accomplish monopolization under present trade practices; would enable Kroger to impose handicaps on competitors; and Kroger's motive for acquiring power to control prices in milk processing is to use dairy "loss leaders" to get more store traffic and thus increase its volume and its profit margin on other retail sales.
8
Kroger maintains the complaint on its face is insufficient to show any possibility of a finding of "dangerous probability of monopoly" which is a prerequisite to an illegal attempt to monopolize; that Kroger's alleged 20 per cent of the market is far short of the minimum necessary to achieve monopoly; that Kroger under the admitted facts will not have the capacity to raise prices or exclude competition at will; that the complaint lacks the requisite allegations of any conduct establishing a specific intent to monopolize; that Kroger's internal expansion is sanctioned by the anti-trust laws; and that the plaintiffs seek to use the anti-trust laws to freeze market shares and to insulate them from the impact of competition — a subversion of the anti-trust laws.
9
The District Court viewed the complaint as insufficient, pointing out that no case has ever condemned internal expansion by a food retailer to provide for its own requirements; that the fact the market is being adequately served by the plaintiffs as a class is immaterial; that the mere building of the plant, even with the intent of using milk sales as a "loss leader," does not show a present intent of an attempt to monopolize; and concluded that § 2 of the Sherman Act does not prohibit internal expansion of a large food retailer to supply its own 8 per cent share of the market and an additional 12 per cent of the wholesale market. The District Court reasoned at 969 of 274 F.Supp.: "* * * [T]he present intent to destroy competition or build monopoly is essential to a finding of an `attempt to monopolize' (Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 97 L.Ed. 1277), but the attempt must be evidenced by the actions done with such intent." and then held:
10
"* * * [T]he mere construction of the processing plant by Kroger will not constitute a violation of Section 2 of the Sherman Antitrust Act. It may well be (and as to this we express no opinion) that Kroger's conduct and acts subsequent to the completion of the plant will be such as to entitle plaintiffs to relief, either injunctive or otherwise."
11
At the threshold of this review we are confronted with the contention that a motion to dismiss is not a proper procedure to test the merits of plaintiffs' case as the plaintiffs have not had opportunity to elaborate and adduce evidence in support of their allegations. We likewise feel that a motion to dismiss and even a summary judgment proceeding do not generally afford a satisfactory vehicle for disposing of complex issues. The United States Supreme Court in First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968), however, approved the use of a summary judgment procedure in a complex antitrust action, stating at 288, at 1592 of 88 S. Ct.:
12
"Thus neither precedent nor logic supports petitioner's contention that the evidence to which he points is significantly probative of conspiracy and therefore, we hold that on the facts as shown summary judgment was correctly awarded to respondent."
13
and rejected the contention that Rule 56(e), Fed.R.Civ.P., is not applicable to complex anti-trust cases and that plaintiffs should have a hearing on the merits of their complaint either before the court or a jury, with this pertinent observation, at 290, at 1593 of 88 S.Ct.:
14
"While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint."
15
Although we realize that a summary judgment proceeding presents different considerations than does a motion to dismiss, we think the same rationale can be applied in disposing of litigation on a motion to dismiss where well-pleaded allegations are not sufficient to base a claim upon which relief can be granted. And there is nothing in the nature of complex anti-trust litigation that would make inapplicable this procedure.
16
A motion to dismiss for failure to state a cause of action can serve a useful purpose in disposing of legal issues with a minimum of time and expense to the interested parties and is applicable to an anti-trust complaint. In testing the legal sufficiency of the complaint the well-pleaded allegations are taken as admitted but conclusions of law and unreasonable inferences or unwarranted deductions of fact are not admitted. See, 2A Moore's Federal Practice § 12.08, p. 2244.
17
The well-pleaded allegations are that Kroger is a large national chain possessing great assets and presently controlling 8 per cent of the market in question, that it intends to (and did)4 build a processing plant for milk and dairy products capable of supplying 20 per cent of that market which includes its captive market of 8 per cent, that it uses milk as a "loss leader", that existing processors have a capacity to and are effectively serving the needs of the territory, present and future, that the dairy facility will endow Kroger with the power to lower prices but not to raise prices, that it may attract customers by the use of milk as a "loss leader" and sell to these customers other items at higher prices, and that plaintiffs would be adversely affected by the entry of Kroger in the wholesale dairy market.
18
Accepting plaintiffs' premise that the Sherman Act prohibits any kind of act or practice that unduly restrains trade or monopolizes, we do not think any case has gone as far as the plaintiffs seek to journey in this one of protecting their market shares from competition of an internal expansion of Kroger into the St. Louis, Mo., Trade Territory; nor do we think the well-pleaded facts allege an attempt to monopolize in violation of § 2 of the Sherman Act.
19
Plaintiffs cite many cases dealing with a monopolization of the market and cases of unfair or predatory practices that unduly restrict competition. United States of America v. American Tobacco Company, 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911) concerns a combination in restraint of trade, and exaction of unreasonable agreements not to compete and price-cutting to eliminate competitors; Eastern States Retail Lumber Dealers' Association v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L. Ed. 1490 (1914), a refusal by retailers to buy from wholesale lumber dealers who sold directly to customers — a combination and a conspiracy in restraint of trade; Eastman Kodak Company of New York v. Southern Photo Materials Company, 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927), purchase of competitors, unreasonable agreements not to compete, and retail price-fixing; Story Parchment Company v. Patterson Parchment Paper Company, 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931), conspiracy to maintain uniform prices and price-cutting to eliminate a competitor; United States v. Swift & Company, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), divisions of territories, control of market journals and stockyard facilities; United States v. Pullman Co., 50 F.Supp. 123 (E.D.Pa.1943), aff'd per curiam 330 U.S. 806, 67 S.Ct. 1078, 91 L.Ed. 1263, exclusive dealing, refusal of service except in Pullman-owned cars, control of manufacture of sleeping cars, long-term contracts. These and many other cases dealing with conspiracies, monopolistic control of the market, tie-in sales and price-cutting to eliminate competitors are not in point. All of those cases are concerned with either an actual or a dangerous probability of monopolization of the market, or deal with actual acts or conduct that have the present effect of unduly restricting competition.
20
An unlawful attempt to monopolize presupposes a "dangerous probability" of monopolization if the attempt is successful. American Tobacco Co. v. United States, 328 U.S. 781, 784-785, 815, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Kansas City Star Company v. United States, 240 F.2d 643, 663 (8 Cir. 1957), cert. denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438; John Wright & Associates, Inc. v. Ullrich, 328 F.2d 474, 478 (8 Cir. 1964). Twenty per cent alone of a market would be insufficient to achieve a monopoly. While size is an earmark of monopoly power,5 a substantial part of the market must be controlled by the monopolist to enable the raising and lowering of prices and the undue restriction on competition. Of nine cases condemning monopolies under § 2 of the Act the percentage of market share ranges from 70 per cent in United States v. Paramount Pictures, Inc., 334 U.S. 131, 167, 68 S.Ct. 915, 92 L.Ed. 1260 (1948) to 100 per cent in the United States v. Pullman Co., supra.6
21
The United States Supreme Court in United States v. United States Steel Corporation, 251 U.S. 417, 444, 40 S.Ct. 293, 297, 64 L.Ed. 343, 8 A.L.R. 1121 (1920) refused to hold a monopoly existed on a market share of 50 per cent or less, reasoning "[t]he power attained was much greater than that possessed by any one competitor — it was not greater than that possessed by all of them. Monopoly, therefore, was not achieved * * *." In considering the question of monopoly in United States v. Aluminum Co. of America, 148 F.2d 416, 424 (2 Cir. 1945), the Court held defendant's 90 per cent of the market was a monopoly but that "* * * it is doubtful whether sixty or sixty-four per cent would be enough and certainly thirty-three per cent is not."
22
We need not decide in this case what percentage less than 50 per cent alone might produce a monopoly under certain circumstances peculiar to the market concerned, but we do think a 20 per cent market share under the circumstances of this case is competitively inadequate to sustain a monopoly and thus permit price dictation and the ability to exclude competition. In Kansas City Star, supra, this Court quoting American Tobacco Co. v. United States, 328 U.S. at 811, 66 S.Ct. 1125, 90 L.Ed. 1575, recognized that the hallmark of monopoly is that "* * * power exists to raise prices or to exclude competition when it is desired to do so." 240 F.2d at 663. Admittedly Kroger will not possess the power to raise milk prices. The power to lower milk prices by using milk as a "loss leader" and recouping by higher prices on other items will not bear analysis as Kroger concededly has no monopoly in the retail grocery field. Its ability to raise prices above the market on other items appears speculative and is not warranted in view of the general competition in the market place. Also in the wholesale market for milk and dairy products its position is inferior to the combined shares of 67 other processors (including some of the giants of the industry, such as National Dairy Products, Foremost, Borden), possessing ample capacity to supply the entire market. Plaintiffs admit in their brief that "Kroger will be a newcomer in milk processing, have a relatively small share of the market, and will face competition from already established competitors some of whom are national giants in the milk business." Kroger's entry in the wholesale market in St. Louis, Mo., Trade Area will increase competition and will probably adversely affect many of the present operators, but it would not establish a monopoly for Kroger in that field. The "loss leader" argument does not present a present basis for relief as (1) it cannot be the predicate for attaining monopoly and (2) it ignores state and federal laws and Federal Trade Commission regulations against predatory trade practices. Kroger still must comply with rather extensive state laws on milk processing and distribution and with the general requirements of the Sherman Act proscribing acts that unreasonably restrict competition. Kroger could not operate at ruinous wholesale prices as it lacks the market dominance to recoup on other grocery items, it admittedly not having a monopoly in that field, nor does it appear that it could achieve ultimate power to raise dairy prices at will in order to recoup. This does not mean that Kroger has, nor does the District Court's decision clothe Kroger with, the right to indulge in predatory practices, in unfair competition or in the commission of acts that would unreasonably restrict competition.
23
Plaintiffs' complaint is not based on unfair trade practices or acts unduly restrictive of competition but on the subjective intent of Kroger to attempt a monopolization of the market in the dairy field. The complaint fails to allege acts or conduct which would show the requisite intent. A mere allegation of an attempt to monopolize is a conclusion of law and about all anyone could say is that Kroger would have the power potentially to engage in some unfair and predatory practices in this field, but there is no showing of unfair or predatory practices. And any future operations are subject to the proscription of federal and state laws that condemn monopolies and unfair and predatory trade practices that unduly restrict competition.
24
The specific intent necessary to support an attempted monopolization under § 2 must be shown by conduct or acts from which a wrongful intent can be inferred. Union Leader Corporation v. Newspapers of New England, Inc., 284 F.2d 582, 584 (1 Cir. 1960), cert. denied 365 U.S. 833, 81 S.Ct. 747, 5 L. Ed.2d 744; Kansas City Star Company v. United States, supra, 663 of 240 F.2d. No present acts are here alleged nor is there any allegation that Kroger has used its existing food processing and manufacturing facilities in an attempt to monopolize the market for its other products. Kroger, under plaintiffs' theory, could use as a "loss leader" any of the other products it processes or manufactures to monopolize the market for such products. It has not done so and probably could not do so, even if desired, as it has not achieved a dominance of the market necessary to create a monopoly.
25
As a general proposition internal expansion is preferable to growth by merger or purchase. As viewed in United States v. Philadelphia National Bank, 374 U.S. 321, 370, 83 S.Ct. 1715, 1745, 10 L.Ed.2d 915 (1963) "* * * corporate growth by internal expansion is socially preferable to growth by acquisition." And as analyzed in Brown Shoe Co., Inc. v. United States, 370 U.S. 94, 345 f.n. 72, 82 S.Ct. 1502, 1534, 8 L.Ed.2d 510 (1962):
26
"A company's history of expansion through mergers presents a different economic picture than a history of expansion through unilateral growth. Internal expansion is more likely to be the result of increased demand for the company's products and is more likely to provide increased investment in plants, more jobs and greater output. Conversely, expansion through merger is more likely to reduce available consumer choice while providing no increase in industry capacity, jobs or output."
27
The only case condemning internal expansion is United States v. Aluminum Co. of America, 148 F.2d 416, 430 (2 Cir. 1945). This case is unique as the Aluminum Company had a present monopoly of the market, of 90 per cent (as an original entry in a new field — American Tobacco Co., supra at 786 of 328 U. S., 66 S.Ct. 1125) and had kept increasing its capacity to anticipate future needs so as to discourage and eliminate competition. These facts are not applicable to the dairy market.
28
This brings us to the line of cases cited by plaintiffs holding that certain acts in the nature of unfair trade practices violated the Sherman Act. Kansas City Star Company v. United States, supra, condemned a tie-in advertising practice and a blacklisting of firms that patronized a competitor. Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) condemned the practice of an appliance chain restricting competition by using its buying power to deny a source of competitive supply to the plaintiff, thus placing the plaintiff at a competitive disadvantage in not being able to purchase certain brands of refrigerators, stoves, washing machines and electronic equipment on the same terms of sale and delivery as the defendant. Klor's held that this practice had a monopolistic tendency which interfered with the natural flow of an appreciable amount of interstate commerce, at 211 of 359 U.S., 79 S.Ct. 705. In Simpson v. Union Oil Co. of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), the Court found that termination of the lease of a retail dealer for refusal to comply with a resale price maintenance scheme constituted an actionable wrong as a restraint of trade or monopolistic practice that had an impact on the market. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 468-469, 82 S.Ct. 486, 489, 7 L.Ed.2d 458 (1962) viewed the cancellation by CBS of an affiliate TV station in Milwaukee and the purchase of another TV station there by it as sufficient to sustain an anti-trust action under § 2 against a summary judgment attack where these acts were alleged to constitute "* * * unlawful conduct or agreement with others or were conceived in a purpose to unreasonably restrain trade, control a market, or monopolize," [stating that] "then such conduct might well run afoul of the Sherman Law." The giving of secret rebates, Bergjans Farm Dairy Co. v. Sanitary Milk Producers, 241 F.Supp. 476, 483, 485 (E.D. Mo.1965), aff'd, Sanitary Milk Producers v. Bergjans Farm Dairy Incorporated, 368 F.2d 679 (8 Cir. 1966), and other cases cited by the plaintiffs all condemn the undue restriction of competition. Market dominance or monopoly is not a prerequisite in this type of case because the acts complained of, even if lawful, have an unreasonable restraint on trade and unduly hinder the free flow of competition.
29
In the case at bar there are no acts or conduct alleged which the plaintiffs would have the court condemn except the building of the dairy facility. This in itself is not an unfair competitive act or predatory trade practice. Plaintiffs contend that Kroger would acquire a strategic aspect of the market with its dairy facility, but this appears too speculative and not warranted under the facts alleged in the complaint and is thus insufficient to prohibit Kroger's entry into this field by way of internal expansion.
30
In dealing with § 7 of the Clayton Act (15 U.S.C. § 18), the United States Supreme Court in Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 1521 (1962) said "* * * the legislative history illuminates congressional concern with the protection of competition, not competitors * * *." Plaintiffs' market shares are not protected by the anti-trust laws and they have no legal basis for precluding competition of Kroger in their field. This is all the District Court held, and, of course, is the narrow holding of our affirmance upon appeal. Plaintiffs are not foreclosed by this decision in protecting themselves against any unfair trade practice or predatory acts that are unreasonably restrictive of competition in violation of the anti-trust and other laws.
31
Judgment affirmed.
Notes:
1
The District Court's Memorandum Opinion by The Honorable John K. Regan is reported at 274 F.Supp. 966 (E.D.Mo. 1967)
2
Section 2 of the Sherman Anti-Trust Act, 15 U.S.C. § 2 reads:
"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, * * * shall be deemed guilty of a misdemeanor * * *."
3
While a literal reading of the Sherman Act would condemn every contract or act that restricts the competitive operation of others, the Court recognized the necessity of applying the "rule of reason" in its interpretation of the statute, holding that only contracts or acts resulting in unreasonable or "undue" restraint of trade are prohibitedStandard Oil, supra at 62 of 221 U.S., 31 S.Ct. 502. In other words, honest and bona fide competition, even if restrictive of competitive conditions, is not a violation of the Act, as the success and growth of one competition often means injury to another.
4
While plaintiffs sought an injunction to enjoin Kroger from building the dairy facility they did not ask for a restraining order nor post a bond for a preliminary injunction. Now, that which they sought to enjoin having already been built, plaintiffs admit that their prayer should be changed to a request that Kroger be not allowed to attempt to monopolize the milk business
5
See, Report of Attorney General's National Committee to Study the Antitrust Laws (1955) at 49
6
The nine cases considered are:
Per Cent
Market Share
United States of America v. American Tobacco Company,
221 U.S. 106, 162, 31 S.Ct. 632, 55 L.Ed. 663 (1911) 86%
Standard Oil Company of New Jersey v. United States, 221
U.S. 1, 33, 31 S.Ct. 502, 55 L.Ed. 619 (1911) 90%
United States v. Eastman Kodak Co., 226 F. 62, 79 (W.D.
N.Y.1915), appeal dismissed, 255 U.S. 578, 41 S.Ct. 321, 65
L.Ed. 795 75-80%
United States v. Pullman Co., 50 F.Supp. 123, 135 (E.D.Pa.
1943), aff'd per curiam, 330 U.S. 806, 67 S.Ct. 1078, 91 L.
Ed. 1263 100%
United States v. Aluminum Co. of America, 148 F.2d 416,
425 (2 Cir. 1945) 90%
United States v. Paramount Pictures, Inc., 334 U.S. 131, 167,
68 S.Ct. 915, 92 L.Ed. 1260 (1948) 70%
United States v. United Shoe Machinery Corp., 110 F.Supp.
295, 343 (D.Mass.1953), aff'd per curiam, 347 U.S. 521, 74
S.Ct. 699, 98 L.Ed. 910 75%
International Boxing Club of New York, Inc. v. United
States, 358 U.S. 242, 249, 79 S.Ct. 245, 3 L.Ed.2d 270
(1959) 81%
United States v. Grinnell Corp., 384 U.S. 563, 567, 86 S.Ct.
1698, 16 L.Ed.2d 778 (1966) 87%
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LUSVIN ALFONSO LOPEZ-PELAEZ, No. 13-71346
Petitioner, Agency No. A070-501-075
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Lusvin Alfonso Lopez-Pelaez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen. Toufighi v. Mukasey, 538
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 988, 992 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Lopez-Pelaez’s untimely
motion to reopen, where he failed to present sufficient evidence of changed
country conditions in Guatemala to qualify for the regulatory exception to the time
limit for filing motions to reopen, and he did not submit applications for relief. See
8 C.F.R. § 1003.2(c)(1), (c)(3)(ii); Toufighi, 538 F.3d at 996 (to prevail on a
motion to reopen based on changed country conditions, applicant must inter alia
demonstrate that his evidence establishes prima facie eligibility for relief).
To the extent that Lopez-Pelaez contends that the BIA abused its discretion
by not sua sponte reopening his proceedings, we lack jurisdiction to review this
contention. See Toufighi, 538 F.3d at 993 n. 8.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 13-71346
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3169
COOK COUNTY, ILLINOIS, et al.,
Plaintiffs-Appellees,
v.
CHAD F. WOLF, Acting Secretary
of Homeland Security, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19 C 6334 — Gary Feinerman, Judge.
____________________
ARGUED FEBRUARY 26, 2020 — DECIDED JUNE 10, 2020
____________________
Before WOOD, Chief Judge, and ROVNER and BARRETT, Cir-
cuit Judges.
WOOD, Chief Judge. Like most people, immigrants to the
United States would like greater prosperity for themselves
and their families. Nonetheless, it can take time to achieve the
American Dream, and the path is not always smooth. Recog-
nizing this, Congress has chosen to make immigrants eligible
for various public benefits; state and local governments have
2 No. 19-3169
done the same. Those benefits include subsidized health in-
surance, supplemental nutrition benefits, and housing assis-
tance. Historically, with limited exceptions, temporary receipt
of these supplemental benefits did not jeopardize an immi-
grant’s chances of one day adjusting his status to that of a le-
gal permanent resident or a citizen.
Recently, however, the Department of Homeland Security
(DHS) issued a new rule designed to prevent immigrants
whom the Executive Branch deems likely to receive public as-
sistance in any amount, at any point in the future, from enter-
ing the country or adjusting their immigration status. The
Rule purports to implement the “public-charge” provision in
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4).
States, cities, and nonprofit groups across the country have
filed suits seeking to overturn the Rule.
Cook County, Illinois, and the Illinois Coalition for Immi-
grant and Refugee Rights, Inc. (ICIRR) brought one of those
cases in the Northern District of Illinois. They immediately
sought a preliminary injunction against the Rule pending the
outcome of the litigation. Finding that the criteria for interim
relief were satisfied, the district court granted their motion.
We conclude that at least Cook County adequately estab-
lished its right to bring its claim and that the district court did
not abuse its discretion by granting preliminary injunctive re-
lief. We therefore affirm.
I. The Setting
A. The Public-Charge Rule
The Immigration and Nationality Act (INA, or “the Act”)
provides that a noncitizen may be denied admission or ad-
No. 19-3169 3
justment of status if she “is likely at any time to become a pub-
lic charge.” 8 U.S.C. § 1182(a)(4)(A). The statute does not de-
fine the term “public charge,” nor has it ever done so. Instead,
the Act calls for a “totality-of-the-circumstances” analysis,
though it singles out several factors to be considered “at a
minimum”: age; health; family status; assets, resources, and
financial status; education and skills; and any affidavit of sup-
port under section 1183a. Id. § 1182(a)(4)(B). The statute does
not specify how officials should weigh the listed factors and
any others that appear to be relevant.
On August 14, 2019, following a notice and comment pe-
riod, DHS issued a rule interpreting this provision. In it, DHS
defines as a “public charge” any noncitizen (with some excep-
tions) who receives certain cash and noncash government
benefits for more than “12 months” in the aggregate in a
36-month period. Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41292–508 (Aug. 14, 2019) (“Rule”). It applies to
all legally admitted immigrants; we are not concerned here
with those in the country unlawfully. The Rule is not limited
to federal benefits; instead, it sweeps in any federal, state, lo-
cal, or tribal cash assistance for income maintenance; Supple-
mental Nutrition Assistance Program (SNAP) benefits; most
forms of Medicaid; Section 8 Housing Assistance under the
Housing Choice Voucher Program; Section 8 Project-Based
Rental Assistance; and certain other forms of subsidized
housing. Id. at 41295, 41501. Each benefit received, no matter
how small, is counted separately and stacked, such that re-
ceipt of multiple benefits in one month is considered receipt
of multiple months’ worth of benefits. Id. at 41295. For exam-
ple, an immigrant who receives any amount of SNAP benefits,
Medicaid, and housing assistance, and nothing else for four
months in a three-year period, will be considered a public
4 No. 19-3169
charge and likely denied adjustment of status. The stacking
rule means that a person can use up her “12 months” of ben-
efits in a far shorter time than a quick reading of the Rule
would indicate.
The Rule also explains what facts DHS will consider with
respect to an applicant’s age, health, family status, financial
status, and education and skills. Id. at 41502–04. “Heavily
weighted negative factors” include the following: lack of cur-
rent employment or reasonable prospect of future employ-
ment; previous receipt or approval for receipt of 12 months’
worth of public benefits in a three-year period; diagnosis of a
medical condition that is likely to require extensive medical
treatment or institutionalization or that will interfere with the
ability to provide for oneself, attend school, or work, along
with lack of insurance and no prospect of obtaining private
health insurance, and insufficient financial resources to pay
for reasonably foreseeable medical costs related to such med-
ical condition; and prior determination of inadmissibility or
deportability on public-charge grounds. Id. at 41504.
The “heavily weighted positive factors” are exclusively
monetary. They include the following: a household income,
assets, resources, or support amounting to at least 250 percent
of the Federal Poverty Guidelines for the household size; cur-
rent employment with an annual income of at least 250 per-
cent of the Federal Poverty Guidelines for the household size;
and private health insurance other than subsidized insurance
under the Affordable Care Act. Id. To put this in perspective,
recall that the Federal Poverty Guideline in 2020 for a family
of four is $26,200 in annual income. Poverty Guidelines,
www.aspe.hhs.gov. An annual income 250 percent of that
No. 19-3169 5
number is $65,500, which is very close to the median U.S. in-
come of $63,179 (the 2018 number reported by the U.S. Census
on Sept. 10, 2019, see Income, Poverty and Health Insurance
Coverage in the United States: 2018, www.census.gov).
Other factors include whether an immigrant is younger
than 18 or older than 61 (bad); household size (smaller is bet-
ter); whether an immigrant’s household annual gross income
is at least 125 percent of the Federal Poverty Guidelines; past
receipt of any amount of public benefits (bad); level of educa-
tion (good); English language proficiency; and credit history
and credit score. Id. at 41502–04.
The Rule represents a striking departure from the previ-
ous administrative guidance—one with a potentially devast-
ing impact on those to whom it applies. 1 That guidance, is-
sued in 1999 by the Immigration and Naturalization Service
(the predecessor of today’s U.S. Citizenship and Immigration
Services), defines as a public charge a noncitizen who is “pri-
marily dependent on the government for subsistence, as
demonstrated by either (i) the receipt of public cash assistance
for income maintenance or (ii) institutionalization for long-
1 The dissent emphasizes the fact that the Rule will not affect certain
people, such as those for whom a sponsor has furnished an affidavit of
support. But those are not the people who concern Cook County—it must
deal with those who bear the brunt of the Rule. Cf. Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 894 (1992) (“Legislation is
measured for consistency with the Constitution by its impact on those
whose conduct it affects. … The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom the
law is irrelevant.”). The dissent concedes, as it must, that the affected
group is not the null set.
6 No. 19-3169
term care at government expense.” Field Guidance on Deport-
ability and Inadmissibility on Public Charge Grounds, 64 Fed.
Reg. 28689 (May 26, 1999) (“1999 Field Guidance”) (emphasis
added); see also Proposed Rule: Inadmissibility and Deporta-
bility on Public Charge Grounds, 64 Fed. Reg. 28676 (May 26,
1999). Drawing on both dictionary definitions and the devel-
opment of immigration law since the 1880s, the proposed rule
accompanying the 1999 Field Guidance explained that “a per-
son becomes a public charge when he or she is committed to
the care, custody, management, or support of the public,” and
that the term is best understood to signify “a complete, or
nearly complete, dependence on the Government rather than
the mere receipt of some lesser level of financial support.” 64
Fed. Reg. at 28677.
B. Procedural History
DHS’s new rule was scheduled to go into effect in October
2019. Before it did so, plaintiffs filed this suit against DHS and
related entities for declaratory and injunctive relief. The com-
plaint presents several theories: (1) the Rule violates the Ad-
ministrative Procedure Act (APA), 5 U.S.C. § 706, because it
exceeds DHS’s statutory authority; (2) the Rule violates APA
section 706 because it is not in accordance with law; (3) the
Rule violates APA section 706 because it is arbitrary and ca-
pricious; and (4) the Rule violates the Fifth Amendment’s
Equal Protection guarantee because it discriminates against
non-white immigrants.
Focusing on the APA theories, plaintiffs moved for a pre-
liminary injunction, which the district court granted on Octo-
ber 14, 2019. (Following plaintiffs’ lead, we do not discuss the
Equal Protection theory.) The injunction is geographically
limited to Illinois. The district court concluded that both Cook
No. 19-3169 7
County and ICIRR have constitutional standing to sue—Cook
County primarily because of the added costs its health and
hospital system is absorbing and will have to absorb as a re-
sult of decreased immigrant enrollment in government-pro-
vided health care coverage, and ICIRR because it is expending
and will continue to expend additional resources to educate
immigrant communities about the Rule and ensure they are
able to obtain necessary health services. The court also deter-
mined that both the County and ICIRR fall within the “zone
of interests” protected by the INA, for largely the same rea-
sons they have constitutional standing. On the merits, the
court concluded that DHS’s reinterpretation of the term is
likely impermissible. The court found the statute to be clear
and to require more substantial, sustained dependence on
government assistance than the Rule demands before a
noncitizen may be considered a public charge. This showed,
the court held, that plaintiffs are likely to succeed on their
claims. Finally, the court ruled that plaintiffs had shown a
likelihood of irreparable harm and that the balance of harms
favored them, such that a preliminary injunction is war-
ranted.
DHS filed an immediate appeal and moved to stay the pre-
liminary injunction pending resolution of its appeal. We de-
nied the stay and a renewed motion for a stay, but on Febru-
ary 21, 2020, the Supreme Court granted a stay. Chad Wolf, et
al. v. Cook County, et al., 140 S. Ct. 681 (2020).
As we write, parallel cases are being litigated in New
York, Maryland, California, and Washington. New York v. U.S.
Dep’t of Homeland Sec., No. 19-cv-7777 (S.D.N.Y.); Make the
Road New York v. Cuccinelli, No. 19-cv-7993 (S.D.N.Y.); Casa de
Maryland, Inc. v. Trump, No. 19-cv-2715 (D. Md.); California v.
8 No. 19-3169
U.S. Dep’t of Homeland Sec., No. 19-cv-4975 (N.D. Cal.); La
Clinica De La Raza v. Trump, No. 19-cv-4980 (N.D. Cal.); Wash-
ington v. U.S. Dep’t of Homeland Sec., No. 19-cv-5210 (E.D.
Wash.). The district courts in each of those cases also issued
preliminary injunctions, though with nationwide effect. DHS
appealed the preliminary injunctions and requested stays
pending appeal. The Ninth and Fourth Circuits granted
DHS’s stay requests. City and Cnty. of San Francisco v. U.S. Cit-
izenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019); Casa
de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Dec. 9, 2019).
The Second Circuit declined to issue a stay, but the Supreme
Court granted one pending further proceedings. Dep’t of
Homeland Sec., et al., v. New York, et al., 140 S. Ct. 599 (2020).
Rather than discussing these opinions point-by-point, we
think it better to spell out our own analysis of these issues.
II. Right To Sue
Plaintiffs invoked the district court’s jurisdiction under 28
U.S.C. § 1331 for their claims under the APA. DHS responds
that they lack standing to sue under Article III of the Consti-
tution. The district court rejected that argument. It also con-
cluded that plaintiffs had adequately raised a claim within the
“zone of interests” of the INA. We review the legal question
of standing de novo and the factual findings underlying the
district court’s determination of standing for clear error. Arre-
ola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008).
A. Article III Standing
Article III of the Constitution limits the federal judicial
power to the adjudication of “cases” and “controversies.” U.S.
Const. art. III, § 2, cl. 1. For there to be a justiciable case or
controversy, the party invoking the power of the court must
No. 19-3169 9
have standing to sue. Hollingsworth v. Perry, 570 U.S. 693, 700
(2013). To assert standing for injunctive relief, a plaintiff must
show that it is under an actual or imminent threat of suffering
a concrete and particularized injury-in-fact; that this injury is
fairly traceable to the defendant’s conduct; and that it is likely
that a favorable judicial decision will prevent or redress the
injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
Municipalities generally have standing to challenge laws
that result (or immediately threaten to result) in substantial
financial burdens and other concrete harms. See, e.g., Dep’t of
Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (“diminish-
ment of political representation, loss of federal funds, degra-
dation of census data, and diversion of resources” were suffi-
cient to give states and municipalities standing to sue over the
proposed inclusion of a citizenship question on the 2020 cen-
sus); Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 110–11
(1979) (municipality had standing based on the effect of racial
steering in housing on the municipality’s tax base and social
stability).
The district court found that Cook County has standing
based on the financial harms the County will incur if and
when the Rule goes into effect. The Rule is likely to cause im-
migrants to forgo routine treatment, immunizations, and di-
agnostic testing, resulting in more costly, uncompensated
emergency care and an increased risk of communicable dis-
eases spreading to the general public. Indeed, DHS conceded
this harm in its commentary on the Rule, acknowledging
“that increased use of emergency rooms and emergent care as
a method of primary healthcare due to delayed treatment is
possible and there is a potential for increases in uncompen-
sated care in which a treatment or service is not paid for by an
10 No. 19-3169
insurer or patient.” 84 Fed. Reg. at 41384. The district court
determined that “[b]oth the costs of community health epi-
demics and of uncompensated care are likely to fall particu-
larly hard on [the Cook County health system], which already
provides approximately half of all charity care in Cook
County, including to noncitizens regardless of their immigra-
tion status.” The district court found that these financial and
health burdens were sufficient.
The district court also concluded that ICIRR has Article III
standing based on the effect of the Rule on its ability to per-
form its core mission and operate its existing programs. The
court found that the Rule would impair the organization’s
ability to achieve its mission of increasing access to care, im-
proving health literacy, and reducing reliance on emergency
room care in immigrant communities. The Rule already has
caused ICIRR to divert resources from its core programs to
new efforts designed to educate immigrants and staff about
the Rule’s effects and to mitigate the Rule’s chilling impact on
immigrants who are not covered by the Rule but who none-
theless fear immigration consequences based on their receipt
of public benefits.
Under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)
and Common Cause Indiana v. Lawson, 937 F.3d 944 (7th Cir.
2019), this is enough. In Havens, the Supreme Court found that
a nonprofit organization focused on equal housing access had
standing to sue an apartment owner under the Fair Housing
Act for racial discrimination, based on the negative impact of
the defendant’s racial steering practices on the organization’s
ability to provide counseling and referral services for low-and
moderate-income home-seekers. 455 U.S. at 379. And in Com-
mon Cause, we relied on Havens in concluding that the plaintiff
No. 19-3169 11
voting rights organizations had standing to challenge an In-
diana law designed to remove certain people from the voter
rolls, because the law caused the organizations to divert their
limited resources from core programs to ameliorating the ef-
fects of the law. 937 F.3d at 950–52.
We agree with the district court that Cook County and
ICIRR have established cognizable injuries. Their alleged in-
juries are predictable, likely, and imminent. And the Rule—
not independent third-party decision-making—is the but-for
cause of these injuries. Plaintiffs thus have constitutional
standing to challenge the Rule.
B. Statutory Coverage
The next question is whether the interests Cook County
and ICIRR assert are among those protected or regulated by
the INA. A statute “ordinarily provides a cause of action only
to plaintiffs whose interests fall within the zone of interests
protected by the law invoked.” Bank of America Corp. v. City of
Miami, 137 S. Ct. 1296, 1302 (2017).
The zone-of-interests test is not “especially demanding” in
the APA context. Lexmark Int’l, Inc. v. Static Control Compo-
nents, Inc., 572 U.S. 118, 130 (2014). This is because it was
“Congress’s evident intent when enacting the APA to make
agency action presumptively reviewable.” Match-E-Be-Nash-
She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
225 (2012). The plaintiffs’ interests must only arguably fall
within the zone of interests of the statute. And the emphasis
on the word “arguably” is not ours: the Supreme Court has
“always conspicuously included the word ‘arguably’ in the
test to indicate that the benefit of any doubt goes to the plain-
tiff.” Id. It is not necessary to demonstrate any “indication of
12 No. 19-3169
congressional purpose to benefit the would-be plaintiff.” Id.
Suit is foreclosed “only when a plaintiff’s interests are so mar-
ginally related to or inconsistent with the purposes implicit in
the statute that it cannot reasonably be assumed that Con-
gress intended to permit the suit.” Id.
1. Cook County
The district court concluded that Cook County satisfies the
zone-of-interests test based on the financial burdens the
County will incur as a result of the Rule. It drew an analogy
to City of Miami, in which the Supreme Court held that Mi-
ami’s allegations of lost tax revenue and extra municipal ex-
penses placed it within the zone of interests protected by the
Fair Housing Act.
DHS takes issue with these conclusions. It argues that the
County does not fall within the INA’s zone of interests be-
cause its asserted interests are inconsistent with the statutory
purpose. DHS sees a tension between the County’s efforts to
provide services to immigrants and the supposed aim of the
public-charge provision, which it understands as a command
to reduce and penalize immigrants’ receipt of public benefits.
DHS also contends that the district court misread City of Mi-
ami, and that the INA does not give any third party a judicially
enforceable interest in the Executive Branch’s immigration
decisions.
DHS has overshot the mark. Indeed, its own arguments
undermine such an absolutist position. DHS admits that one
purpose of the public-charge provision is to protect taxpayer
resources. In large measure, that is the same interest Cook
County asserts. DHS tries to distinguish itself from Cook
County by saying that it is focused on reducing the burden on
No. 19-3169 13
federal taxpayers, but the Rule itself covers not just federal, but
also state, local, and tribal assistance. Even if the effect of the
Rule is some reduction in the burden on federal taxpayers,
Cook County has plausibly alleged that at the same time, the
Rule will increase the burden on those same people in their
capacity as state and local taxpayers, who will have to suffer
the adverse effects of a substantial population with inade-
quate medical care, housing, and nutrition.
Furthermore, though the purpose of the public-charge
provision is to screen for and promote “self-sufficiency”
among immigrants, it is not obvious what self-sufficiency
means. Subsidies abound in the modern world, from dis-
counted or free transportation for seniors, to public snow re-
moval, to school lunches, to childhood vaccinations, and
much more. Cf. Danilo Trisi, Administration’s Public Charge
Rules Would Close the Door to U.S. Immigrants Without Substan-
tial Means, Ctr. on Budget and Policy Priorities (Nov. 11, 2019)
(noting that in a single year, one in four U.S.-born citizens,
and 15 percent of all residents, receives a benefit included in
the Rule’s public charge definition). Ensuring that immigrants
have access to affordable basic health care, for example, may
promote their greater self-sufficiency in other domains, in-
cluding income, housing, and nutrition. It also protects the
community at large from highly contagious diseases such as
COVID-19. Cook County’s interest in ensuring lawful immi-
grants’ access to authorized federal and state public benefits
is not plainly inconsistent with the text of the statute. Its fi-
nancial interests thus suffice to bring it within the zone of in-
terests of the public-charge provision.
14 No. 19-3169
2. ICIRR
The court also found that ICIRR fits within the INA’s zone
of interests, explaining that there is “ample evidence that
ICIRR’s interests are not merely marginal to those of the aliens
more directly impacted by the public charge provision” and
that “ICIRR [is] precisely the type of organization that would
reasonably be expected to ‘police the interests that the statute
protects.’”
Because only one plaintiff need demonstrate that it has
stated a claim within the zone of interests of the statute, we
elect to pass over ICIRR without much comment. We recog-
nize that it asserts that it has suffered a financial burden di-
rectly attributable to the Rule. And we accept that ICIRR helps
immigrants navigate the INA’s various requirements, includ-
ing the public-charge rule, and it has an interest in ensuring
that immigrants are not improperly denied adjustment of sta-
tus or removed from the country because of confusion over
DHS’s Rule. But the link between these injuries and the pur-
pose of the public-charge part of the statute is more attenu-
ated, and thus it is harder to say that the injury ICIRR has as-
serted meets the “zone-of-interests” test.
Given Cook County’s presence in the case, we need not
resolve ICIRR’s status definitively, and so we limit our discus-
sion in the remainder of the opinion to Cook County. The cen-
tral question is whether the district court abused its discretion
in preliminarily enjoining the Rule for the State of Illinois?
III. The Preliminary Injunction
To obtain a preliminary injunction, a plaintiff must estab-
lish that: (1) she is likely to succeed on the merits, (2) she is
likely to suffer irreparable harm in the absence of preliminary
No. 19-3169 15
relief; and (3) legal remedies are inadequate. See Winter v. Nat-
ural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Eli Lilly & Co.
v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018). “If the mov-
ing party makes this showing, the court balances the harms to
the moving party, other parties, and the public.” Eli Lilly, 893
F.3d at 381. The standard is the same for an application for a
stay under section 705 of the APA. Cronin v. U.S. Dep’t of
Agric., 919 F.2d 439, 446 (7th Cir. 1990).
The district court concluded that Cook County is likely to
succeed on the merits and that the other requirements for pre-
liminary injunctive relief have been met. We review the issu-
ance of a preliminary injunction under the deferential abuse-
of-discretion standard, reviewing legal issues de novo and fac-
tual findings for clear error. Whitaker v. Kenosha Unified Sch.
Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017).
A. Likelihood of Success
The pivotal question in this case, as in many involving pre-
liminary relief, is likelihood of success on the merits. We
therefore devote the bulk of our analysis to this issue, under-
standing that the litigation is still in an early stage and any-
thing we say may change as the record develops further.
The APA provides for judicial review of final agency deci-
sions. 5 U.S.C. §§ 702, 706. The overriding question is whether
the agency’s interpretation of the relevant statute is one the
text will permit. We approach this inquiry through the two-
step framework set forth in Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984). The first issue is “whether
Congress has directly spoken to the precise question at issue.”
Id. at 842. If Congress has done so unambiguously, then that
is the end of it: the agency and courts alike are bound by what
16 No. 19-3169
Congress wrote. Id. at 842–43. If Congress has not spoken
clearly, then we move on to step two, in which we consider
whether the agency’s interpretation reflects a permissible con-
struction of the statute. Id. at 843. We defer to the agency’s
reading “unless it appears from the statute or its legislative
history that the accommodation [of conflicting policies] is not
one that Congress would have sanctioned.” Id. at 845; see also
Indiana v. EPA, 796 F.3d 803, 811 (7th Cir. 2015).
Statutory interpretation is not the end of the matter, how-
ever. We also must assess the agency’s policymaking to en-
sure that it is not “arbitrary and capricious,” as the APA uses
those terms. 5 U.S.C. § 706(2)(A). This review, guided by Mo-
tor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29 (1983), focuses not on the facial validity of the agency’s in-
terpretation, but rather on the soundness of the process by
which it reached its interpretation. See Encino Motorcars, LLC
v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“[W]here a proper
challenge is raised to the agency procedures, and those pro-
cedures are defective, a court should not accord Chevron def-
erence to the agency interpretation.”).
1. Chevron Step One
We begin our analysis of DHS’s Rule with an analysis of
the text of the INA. In conducting this analysis, we consider
the words of the public-charge provision, its place in the over-
all statutory scheme, the relation of the INA to other statutes,
and “common sense as to the manner in which Congress is
likely to delegate a policy decision of such economic and po-
litical magnitude to an administrative agency.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000).
No. 19-3169 17
As we noted at the outset, the INA contains no formal def-
inition of what it takes to be a “public charge.” It merely lists
several broad factors that are relevant to the determination.
8 U.S.C. § 1182(a)(4)(B). It does not provide weights for either
the listed factors or any others that might exist in a given case.
Instead, it relies on the discretion of the responsible consular
official or the Attorney General. Id. § 1182(a)(4)(A). It also au-
thorizes the Secretary of Homeland Security to promulgate
rules to guide those determinations. Id. § 1103(a)(3).
In defense of its Rule, DHS relies heavily on the 1996
amendments to the INA. There Congress stated that “self-suf-
ficiency has been a basic principle of United States immigra-
tion law since this country’s earliest immigration statutes.” 8
U.S.C. § 1601(1). Congress also announced its intent that “al-
iens within the Nation’s borders not depend on public re-
sources to meet their needs, but rather rely on their own ca-
pabilities and the resources of their families, their sponsors
and private organizations”; and that “the availability of pub-
lic benefits [should] not constitute an incentive for immigra-
tion to the United States.” 8 U.S.C. § 1601(2).
Both parties also cite various other statutory provisions
that they believe shed light on the meaning of the public-
charge provision, including the requirement for some immi-
grants to obtain affidavits of support from sponsors, 8 U.S.C.
§ 1183a; an exception to the public-charge provision for immi-
grants who are victims of domestic violence and receive ben-
efits in that capacity, id. §§ 1182(a)(4)(E), 1641(c); and several
other statutes that extend, with varying conditions, certain
benefits to immigrants, see, e.g., id. §§ 1611, 1621. We do not
find these provisions to be particularly helpful; each is sus-
ceptible to more than one reasonable reading.
18 No. 19-3169
Cook County argues that long-established judicial deci-
sions, ratified by Congress, point us to only one possible in-
terpretation—that is, the one that it urges. But in our view, the
historical record is not so clear. The parties agreed in the dis-
trict court that the understanding of the term “public charge”
around the time it first entered federal immigration law in
1882 is particularly relevant. See New Prime Inc. v. Oliveira, 139
S. Ct. 532, 539 (2019) (“It’s a fundamental canon of statutory
construction that words generally should be interpreted as
taking their ordinary meaning at the time Congress enacted
the statute.”). But that is where the harmony ends.
Enter the dueling dictionaries. In Cook County’s corner,
we have the Century Dictionary, defining a “charge” as a per-
son who is “committed to another’s custody, care, concern or
management,” Century Dictionary 929 (William Dwight
Whitney, ed., 1889) (emphasis added); and Webster’s Diction-
ary, likewise defining a “charge” as a “person or thing com-
mitted to the care or management of another,” Webster’s Con-
densed Dictionary of the English Language 84 (Dorsey Gard-
ner, ed., 1884). These suggest primary, long-term dependence.
In DHS’s corner, we have dictionaries defining a “charge” as
“an obligation or liability,” as in a “pauper being chargeable
to the parish or town,” Dictionary of Am. and English Law
196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a
“burden, incumbrance, or lien,” Glossary of the Common
Law 56 (Frederic Jesup Stimson, ed., 1881). These definitions
can be read to indicate that a lesser reliance on public benefits
is enough. Finding no clarity here, we move on.
Cook County contends that from the outset Congress dis-
tinguished between, on the one hand, those who were permit-
No. 19-3169 19
ted to “land” and receive short-term support from govern-
ment agencies, and, on the other hand, those who were ex-
cluded as public charges. Under the 1882 Immigration Act,
the set of people who could be prevented from landing in-
cluded convicts, “lunatics,” “idiots,” and any other person
“unable to take care of himself or herself.” An Act to Regulate
Immigration, ch. 376, § 2, 22 Stat. 214 (1882). The 1882 Act au-
thorized the Secretary of the Treasury, who was responsible
for supervising immigration, to enter into contracts with state
entities “to provide for the support and relief of such immi-
grants therein landing as may fall into distress or need public
aid, under the rules and regulations to be prescribed by said
Secretary.” Id. Cook County stresses this distinction between
excludable public charges and immigrants who (less drasti-
cally) “may fall into distress or need public aid.”
This argument has some intuitive merit. DHS responds
however, that the general revenues were not at risk under the
1882 Act for immigrants who were not self-sufficient upon ar-
rival. The 1882 Act directed the Secretary of the Treasury to
levy an entry tax on all noncitizens arriving by ship to cover
both the cost of regulating immigration and that of temporary
assistance. 1882 Act, ch. 376, § 1. It also specified that “no
greater sum shall be expended for the purposes hereinbefore
mentioned, at any port, than shall have been collected at such
port.” Id. In other words, federal funding was available only
to the extent the funds matched collections from the vessels.
This general feature is no longer part of the law (putting to
one side the special case of sponsored immigrants).
Congress tinkered with the language in 1891, 1903, and
1907. See An Act in Amendment to the Various Acts Relative
to Immigration and the Importation of Aliens Under Contract
20 No. 19-3169
or Agreement to Perform Labor, ch. 551, 26 Stat. 1084, 1086
(1891); An Act to Regulate the Immigration of Aliens into the
United States, ch. 1012, 32 Stat. 1213, 1213–1214 (1903); An Act
to Regulate the Immigration of Aliens into the United States,
ch. 1134, 34 Stat. 898, 898–899, 904–905 (1907). Never, how-
ever, did it define “public charge” or explain what degree of
reliance on government aid brands someone as such a person.
Federal district court and state-court cases from this pe-
riod point in different directions. For example, in In re Fein-
knopf, 47 F. 447 (E.D.N.Y. 1891), a district court distinguished
between the primary dependence of persons who live in alms-
houses and the lesser dependence of those who merely re-
ceive public support. Around the same time, a North Dakota
court indicated that temporary aid is actually a means of
averting public dependence, insofar as it can keep those “des-
titute of means and credit from becoming a public charge.”
Yeatman v. King, 2 N.D. 421 (1892). On the other hand, the
question in Yeatman was whether an obligation to repay the
county the value of received temporary public assistance
counted as a tax, and so the decision is of limited value.
The district court did not find these and other early deci-
sions to be dispositive. Instead, it thought that the Supreme
Court’s decision in Gegiow v. Uhl, 239 U.S. 3 (1915), resolved
the issue. But there, too, the question presented was a narrow
one. The Court said that it was addressing the “single ques-
tion … whether an alien can be declared likely to become a
public charge on the ground that the labor market in the city
of his immediate destination is overstocked.” Id. at 9–10. It an-
swered in the negative, saying that “[t]he persons enumer-
ated, in short, are to be excluded on the ground of permanent
personal objections accompanying them irrespective of local
No. 19-3169 21
conditions … .” Id. at 10. The district court in our case under-
stood Gegiow as holding that the term “public charge” encom-
passes only persons who are substantially, if not entirely, de-
pendent on government assistance on a long-term basis.
While there is language in Gegiow that supports that read-
ing, we are not persuaded that the Supreme Court necessarily
ruled so broadly. The Court went out of its way to say that the
question presented was the one we noted above. The Acting
Commissioner of Immigration, in deciding to deport the per-
sons at issue, mentioned in addition to local labor conditions
“the amount of money possessed and ignorance of our lan-
guage.” But the Court brushed off these considerations as
mere “makeweights.” Id. at 9. It thus had no need to address
directly the immigrants’ financial resources and education.
In context, the Court’s reference to “permanent personal
objections” might have simply reflected a distinction between
the individualized characteristics of an immigrant and exter-
nal factors such as a local labor market. The terse opinion is
silent about any distinction between people whose need for
public assistance is temporary and minimal, and those whose
need is likely to be substantial or permanent. We thus agree
with DHS that the case before us cannot be resolved exclu-
sively by reference to Gegiow.
Circuit court decisions in the aftermath of Gegiow add little
clarity to this picture. For example, in Wallis v. United States ex
rel. Mannara, 273 F. 509 (2d Cir. 1921), the Second Circuit de-
fined a person likely to become a public charge as “one whom
it may be necessary to support at public expense by reason of
poverty, insanity and poverty, disease and poverty, idiocy
and poverty.” Id. at 511. It did so in a case in which the immi-
22 No. 19-3169
grant family’s primary breadwinner was “certified for senil-
ity” and thus would never be “capable of continued self-sup-
port.” Id. at 510. The court noted that the family had “insuffi-
cient [means] to provide for their necessary wants any reason-
able length of time” and no private sources of support. Id. On
the other hand, in Ex parte Hosaye Sakaguchi, 277 F. 913 (9th
Cir. 1922), the Ninth Circuit held that an immigrant woman
with the skills to support herself was not likely to become a
public charge. Id. at 916. It ruled that the government had to
present evidence of “mental or physical disability or any fact
tending to show that the burden of supporting the [immi-
grant] is likely to be cast upon the public.” Id. How much of a
burden was left undefined. See also United States ex rel. De
Sousa v. Day, 22 F.2d 472, 473–74 (2d Cir. 1927) (“In the face of
[Gegiow] it is hard to say that a healthy adult immigrant, with
no previous history of pauperism, and nothing to interfere
with his chances in life but lack of savings, is likely to become
a public charge within the meaning of the statute.”).
The parties and amici also call our attention to later actions
by the Executive Branch, but we find these also to be incon-
clusive. See, e.g., Matter of B-, 3 I. & N. Dec. 323, 326 (BIA &
AG 1948) (stating that the longstanding test for whether an
immigrant could be deemed a public charge had three com-
ponents: (1) the state must charge for the service it renders; (2)
it must make a demand for payment; and (3) the immigrant
must fail to pay).
What we can say is that in 1952 Congress amended the Act
in a way that uses the language of discretion: it deems inad-
missible immigrants “who, in the opinion of the consular of-
ficer at the time of application for a visa, or in the opinion of
the Attorney General at the time of application for admission,
No. 19-3169 23
are likely at any time to become public charges.” An Act to Re-
vise the Laws Relating to Immigration, Naturalization, and
Nationality; and for Other Purposes, Pub. L. No. 414, § 212, 66
Stat. 163, 183 (1952) (emphasis added). This language clarifies
the temporal dimension of the public-charge determination,
but it says nothing about the degree or duration of assistance.
The Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104
Stat. 4978, also lacks a clear definition of “public charge.”
In the 1996 Immigration Act, Congress for the first time
provided guidance on what the Executive Branch must con-
sider when determining whether an immigrant is likely to be-
come a public charge. As we noted earlier, immigration offi-
cials were instructed “at a minimum” to look at age, health,
family status, financial situation, and education and skills. Il-
legal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, Div. C, § 531, 110 Stat. 3009
(1996). They also could consider whether an immigrant had
an affidavit of support from a third party. Id. Congress re-
jected a proposal to define “public charge” to cover “any alien
who receives [means-tested public benefits] for an aggregate
of at least 12 months.” 142 Cong. Rec. 24313, 24425 (1996).
Contemporaneously, Congress enacted the Personal Re-
sponsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. 104-193, 110 Stat. 2105 (1996), commonly known
as the “Welfare Reform Act.” DHS places great weight on lan-
guage in that statute’s expression of Congress’s desire that
immigrants be self-sufficient and not come to the United
States with the purpose of benefitting from public welfare
programs. See 8 U.S.C. § 1601(1). The INA (with that amend-
ment) pursues that goal by restricting most noncitizens from
eligibility for many federal and state public benefits. It grants
24 No. 19-3169
lawful permanent residents access to means-tested public
benefits only after they have spent five years as a lawful per-
manent resident. Id. §§ 1611, 1613, 1621. But the exclusions are
not absolute. Congress specified instead that immigrants may
at any time receive emergency medical assistance; immuniza-
tions and testing for communicable diseases; short-term, in-
kind emergency disaster relief; various in-kind services such
as short-term shelter and crisis counseling; and certain hous-
ing and community development assistance. Id.
The INS summarized its understanding of the 1996 legal
regime in the 1999 Field Guidance, which defined as a public
charge those who are “primarily dependent on the govern-
ment for subsistence, as demonstrated by either (i) the receipt
of public cash assistance for income maintenance or (ii) insti-
tutionalization for long-term care at government expense.” 64
Fed. Reg. at 28689. Following an earlier 1987 interpretive rule,
see Adjustment of Status for Certain Aliens, 52 Fed. Reg.
16205, 16211–12, 16216 (May 1, 1987), the 1999 Field Guidance
said that “officers should not initiate or pursue public charge
deportation cases against aliens who have not received public
cash benefits for income maintenance or who have not been
institutionalized for long-term care.“ 64 Fed. Reg. at 28689. It
directed officers “not [to] place any weight on the receipt of
non-cash public benefits (other than institutionalization) or
the receipt of cash benefits for purposes other than for income
maintenance with respect to determinations of admissibility
or eligibility for adjustment on public charge grounds.” Id.
Later enactments lightened some of the statutory re-
strictions, in order to allow additional categories of immi-
grants to qualify for certain benefits without a five-year wait-
ing period. See Farm Security and Rural Investment Act of
No. 19-3169 25
2002, Pub. L. 107-171, § 4401, 116 Stat. 134 (2002); Children’s
Health Insurance Program Reauthorization Act of 2009, Pub.
L. 11-3, § 214, 123 Stat. 8 (2009).
This is where things stood when DHS developed the Rule.
What should we make of this historical record? As the district
court recognized, there is abundant evidence supporting
Cook County’s interpretation of the public-charge provision
as being triggered only by long-term, primary dependence.
But the question before us is not whether Cook County has
offered a reasonable interpretation of the law. It is whether the
statutory language unambiguously leads us to that interpre-
tation. We cannot say that it does. As our quick and admit-
tedly incomplete overview of this byzantine law has shown,
the meaning of “public charge” has evolved over time as im-
migration priorities have changed and as the nature of public
assistance has shifted from institutionalization of the destitute
and sick, to a wide variety of cash and in-kind welfare pro-
grams. What has been consistent is the delegation from Con-
gress to the Executive Branch of discretion, within bounds, to
make public-charge determinations.
Thus, this case cannot be resolved at Chevron step one. But
that does not end the analysis, because we may affirm the dis-
trict court’s issuance of a preliminary injunction on any basis
in the record. See Valencia v. City of Springfield, Ill., 883 F.3d
959, 967 (7th Cir. 2018). We therefore proceed to step two.
2. Chevron Step Two
At step two of the Chevron analysis, we consider “whether
the agency’s answer is based on a permissible construction of
the statute.” 467 U.S. at 843. Our review is deferential; we ac-
cord “considerable weight … to an executive department’s
26 No. 19-3169
construction of a statutory scheme it is entrusted to adminis-
ter.” Id. at 844; see also Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005).
A court may strike down an agency’s interpretation of a
law if, for example, the agency’s reading disregards the stat-
utory context, see, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2708
(2015); its rule is based on an unreasonable interpretation of
legislative history, see, e.g., Council for Urological Interests v.
Burwell, 790 F.3d 212, 223 (D.C. Cir. 2015); or its new position
“would bring about an enormous and transformative expan-
sion in [the agency’s] regulatory authority without clear con-
gressional authorization, Util. Air Reg. Grp. v. EPA, 573 U.S.
302, 324 (2014).
Cook County offers several reasons why DHS’s interpre-
tation founders here. First, it contends that the Rule conflicts
with at least two statutes: the SNAP statute and the Rehabili-
tation Act of 1973. Second, it urges that the DHS position cre-
ates internal inconsistencies in the immigration laws them-
selves. We address these points in turn.
The SNAP statute prohibits the government from consid-
ering SNAP benefits as “income or resources for any purpose
under any Federal, State, or local laws.” 7 U.S.C. § 2017(b). But
DHS is not trying to characterize these benefits as income or
resources held by the immigrant in question. The Rule merely
notes that receipt of the benefits is an indicium of a lack of
self-sufficiency. Whatever else one might say about that posi-
tion, it is not one that the SNAP law forbids.
The Rehabilitation Act of 1973 prohibits the government
from excluding from participation in, denying the benefits of,
or subjecting to discrimination under any federally funded
No. 19-3169 27
program or activity, a person with a disability “solely by rea-
son of her or his disability.” 29 U.S.C. § 794(a). An agency vi-
olates the Act if it (1) intentionally acts on the basis of the dis-
ability; (2) refuses to provide a reasonable modification; or (3)
takes an action or adopts a rule that disproportionately affects
disabled people. A.H. ex rel. Holzmueller v. Ill. High Sch. Ass’n,
881 F.3d 587, 592–93 (7th Cir. 2018). An aggrieved person
must demonstrate that “but for” her disability, she would
have been able to access the desired benefits. Id. at 593.
DHS frankly acknowledges that it takes disability into ac-
count in its public-charge analysis, and it does so in an unfa-
vorable way. 84 Fed. Reg. at 41383 (“DHS considers any disa-
bility or other medical condition in the public charge inadmis-
sibility determination to the extent the alien’s health makes
the alien more likely than not to become a public charge at
any time in the future.”). Indeed, the Rule brands as a heavily
weighted negative factor a medical condition that is likely to
require extensive medical treatment or interfere with the per-
son’s ability to provide for herself, attend school, or work. Id.
at 41504. DHS does not say what amounts to “extensive med-
ical treatment” or what it means for a condition to “interfere
with [an immigrant’s] ability to provide for herself, attend
school, or work.” The Rule leaves the interpretation of these
terms to immigration officials. It is therefore unclear what
sorts of disabilities DHS will place into this category.
As several amici curiae point out, the Rule ignores the fact
that private insurers do not cover many home- and commu-
nity-based services, and so denial of benefits is effectively de-
nial of access to programs or activities. See id. at 41382. DHS
responded to this criticism, as it applies to Medicaid Buy-in
for those with disabilities, with the comment that “[a]liens
28 No. 19-3169
should be obtaining private health insurance other than Med-
icaid in order to establish self-sufficiency.” Id. But that is chi-
merical. Private insurance in the United States typically ex-
cludes these benefits, and so persons with disabilities are able
to obtain essential services, including personal-care services,
specialized therapies and treatment, habilitative and rehabil-
itative services, and medical equipment, only by participating
in the Medicaid Buy-in program. With this assistance, they are
able to work and thus can avoid becoming a public charge,
which is DHS’s purported goal.
The conclusion is inescapable that the Rule penalizes dis-
abled persons in contravention of the Rehabilitation Act. All
else being equal—education and skills, work history and po-
tential, health besides disability, etc.—the disabled are sad-
dled with at least two heavily weighted negative factors di-
rectly as a result of their disability. Even while DHS purports
to follow the statutorily-required totality of the circumstances
test, the Rule disproportionately burdens disabled people and
in many instances makes it all but inevitable that a person’s
disability will be the but-for cause of her being deemed likely
to become a public charge.
We do not mean to suggest that the Rehabilitation Act re-
pealed the “health” criterion in the public-charge provision
by implication. There is no need to do that, if the two statutes
can be reconciled—and it is our duty to see if that can be ac-
complished. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624
(2018) (“[T]his Court is not at liberty to pick and choose
among congressional enactments and must instead strive to
give effect to both.”). And they can live together comfortably,
as long as we understand the “health” criterion in the INA as
referring to things such as contagious disease and conditions
No. 19-3169 29
requiring long-term institutionalization, but not disability per
se. That interpretation is also historically grounded.
DHS’s interpretation also creates serious tensions, if not
outright inconsistencies, within the statutory scheme. It con-
flicts with Congress’s affirmative authorization for desig-
nated immigrants to receive the benefits the Rule targets. See
8 U.S.C. §§ 1611, 1621 (allowing immigrants to receive emer-
gency medical assistance, immunizations and contagious dis-
ease testing, and some public housing assistance); Farm Secu-
rity and Rural Investment Act of 2002, Pub. L. No. 107–171,
§ 4401, 116 Stat. 134 (authorizing supplemental nutrition ben-
efits for certain categories of immigrants, and Medicaid and
children’s health insurance for noncitizen children and preg-
nant women). Cook County is largely correct when it accuses
the Rule of “set[ting] a trap for the unwary” by penalizing
people for accepting benefits Congress made available to
them. Although the Rule does not punish immigrants for us-
ing the designated benefits, in the sense of imposing a fine, its
heavily negative consideration of such use is an even worse
penalty for someone seeking a lawful path to staying in the
United States. Furthermore, the preliminary injunction record
shows that many immigrants are not sophisticated enough to
know which benefits they may safely accept and which not.
Congress drew the balance between acceptance of benefits
and preference for self-sufficiency in the statutes, and it is
DHS’s duty to respect that outer boundary. The Welfare Re-
form Act achieved its stated goal of reducing immigrant reli-
ance on public assistance by barring receipt of any benefits by
some classes of noncitizens and authorizing receipt by other
classes only after a five-year waiting period. The statute did
not create a regime that permitted self-sufficiency to trump all
30 No. 19-3169
other goals, nor did it modify the public-charge provision to
penalize receipt of non-cash as well as cash assistance. DHS is
correct that its Rule is not worded as an outright prohibition
against an immigrant’s receipt of benefits to which Congress
has entitled him. The latter would exceed DHS’s authority.
But the record before us indicates that it may have the same
effect.
Our concerns are heightened by the fact that DHS’s inter-
pretation of its statutory authority has no natural limitation.
Although it chose a rule that quantified the benefits used to
12 months’ worth over a 36-month period, nothing in its in-
terpretation requires even that limit. There is nothing in the
text of the statute, as DHS sees it, that would prevent the
agency from imposing a zero-tolerance rule under which the
receipt of even a single benefit on one occasion would result
in denial of entry or adjustment of status.
We see no warrant in the Act for this sweeping view. Even
assuming that the term “public charge” is ambiguous and
thus might encompass more than institutionalization or pri-
mary, long-term dependence on cash benefits, it does violence
to the English language and the statutory context to say that
it covers a person who receives only de minimis benefits for a
de minimis period of time. There is a floor inherent in the
words “public charge,” backed up by the weight of history.
The term requires a degree of dependence that goes beyond
temporary receipt of supplemental in-kind benefits from any
type of public agency.
DHS also runs into trouble as a result of its decision to
stack benefits and disregard monetary value. Under its Rule,
the receipt of multiple benefits in one month, no matter how
No. 19-3169 31
slight, counts as multiple months of benefits. DHS acknowl-
edges that the Rule’s 12-months-in-36 tolerance would actu-
ally run out in four months if an immigrant received non-
emergency Medicaid, any SNAP benefit, and housing assis-
tance, or even sooner if she additionally received any amount
of cash income assistance through a federal, state, local, or
tribal program. Paradoxically, the Rule provides no oppor-
tunity for an immigrant to repay the value of the benefits re-
ceived once she is back on her feet. This is another way in
which it unreasonably imposes substantially disproportion-
ate consequences for immigrants, compared to the supposed
drain on the public fisc they cause.
The ambiguity in the public-charge provision does not
provide DHS unfettered discretion to redefine “public
charge.” We find that the interpretation reflected in the Rule
falls outside the boundaries set by the statute.
3. Arbitrary and Capricious Review
Our conclusion that the Rule likely does not meet the
standards of Chevron step two is enough to require us to move
on to the remainder of the preliminary-injunction analysis.
But even if we are wrong about step two, one more inquiry
remains: whether the Rule is arbitrary and capricious, as the
APA uses those terms. See 5 U.S.C. § 706(2)(A). That requires
an examination of DHS’s policymaking process.
When conducting rulemaking, an agency must “examine
the relevant data and articulate a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State
Farm, 463 U.S. at 43. It may not “rel[y] on factors which Con-
gress has not intended it to consider, entirely fail[] to consider
32 No. 19-3169
an important aspect of the problem, [or] offer[] an explanation
for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Id. Fur-
thermore, when an agency changes course, as DHS did here
when it adopted a radically different understanding of the
term “public charge” compared to the 1999 Field Guidance, it
“must show that there are good reasons for the new policy.”
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In
explaining a change in policy, “an agency must also be cogni-
zant that longstanding policies may have engendered serious
reliance interests that must be taken into account.” Encino Mo-
torcars, 136 S. Ct. at 2126. This is because a “settled course of
behavior embodies the agency’s informed judgment that, by
pursuing that course, it will carry out the policies committed
to it by Congress.” State Farm, 463 U.S. at 41–42. Thus, “a rea-
soned explanation is needed for disregarding facts and cir-
cumstances that underlay or were engendered by the prior
policy.” Fox Television Stations, 556 U.S. at 516.
The review called for by State Farm is narrow in scope and
does not permit us to substitute our own policy judgment for
that of the agency. We ask only whether the agency’s “deci-
sion was based on a consideration of the relevant factors” and
was not “a clear error of judgment.” 463 U.S. at 43.
In response to its notice of proposed rulemaking, DHS re-
ceived a whopping 266,077 comments, the vast majority of
which opposed the proposed rule. In the preamble to the final
rule, DHS summarized significant issues raised by the com-
ments and changes it made in the final rule. We assess the va-
lidity of DHS’s decision-making process based on this record.
No. 19-3169 33
Cook County urges that the Rule is arbitrary and capri-
cious in a number of ways: (1) DHS failed meaningfully to
evaluate and address significant potential harms from the
Rule, including its substantial chilling effect on immigrants
not covered by the Rule; (2) DHS failed to give a logical ra-
tionale for the duration-based standard; and (3) DHS added
factors to the totality-of-the-circumstances analysis that are
“unsupported, irrational and at odds with the Final Rule’s
purported purpose.” Numerous amici underscored these
points and explained how the Rule will lead to arbitrary re-
sults, cause both direct and indirect economic harms, burden
states and localities that have to manage fallout from the Rule,
and disproportionately harm the disabled and children.
We look first at DHS’s dismissal of concerns about the
Rule’s chilling effect on legal immigrants and family members
who fall outside its scope. DHS acknowledged a “plausible
connection” between the Rule and needless disenrollment by
exempt noncitizens (including refugees, asylees, and victims
of domestic violence) in covered public benefits, and by cov-
ered immigrants in noncovered benefit programs. 84 Fed.
Reg. at 41313. DHS also said that it “appreciates … the poten-
tial nexus between public benefit enrollment reduction and
food insecurity, housing scarcity, public health and vaccina-
tions … and increased costs to states and localities.” Id. None-
theless, it brushed off these impacts as “difficult to predict”
and refused to “alter this rule to account for such unwar-
ranted choices.” Id. Even though these consequences are fore-
seeable, the Rule does not literally compel them, and so DHS
asserted that they could be addressed through additional
public guidance.
34 No. 19-3169
DHS may think that these responses are unwarranted, but
it does not deny that they are taking place and will continue
to do so. Moreover, the record indicates that the target popu-
lation is responding rationally. DHS’s system of counting and
stacking benefits is hardly transparent, and so a rational per-
son might err on the side of caution and refrain from seeking
medical care, or food, or housing, even from a city, state, or
tribe rather than the federal government. And the risk that the
Rule may become more stringent at any time and operate ret-
roactively against the use of benefits already used is a real
one. DHS trumpets its view that the Rule stops short of its
lawful authority and that it could promulgate a more restric-
tive rule if it so chooses. In response to comments on the pro-
posed rule, DHS used discretionary language: “DHS believes
it is a reasonable approach to only designate Medicaid at this
time,” id. at 41381 (emphasis added); and “DHS will not con-
sider [Healthy Start] benefits at this time,” id. at 41390 (empha-
sis added). It warned that it may “updat[e] the list of benefits
through future regulatory action.” Id. at 41387. Immigrants
thus reasonably anticipate that their receipt of benefits that
are currently not covered could eventually hurt them if DHS
alters the Rule in the future.
It was not enough for DHS simply to nod at this argument;
it called for a serious explanation. The importance of the
chilling effect is not the number of disenrollments in the ab-
stract, but the collateral consequences of such disenrollments.
DHS failed adequately to grapple with the latter. For example,
commenters predicted that disenrollment and under-enroll-
ment in Medicaid, including by immigrants not covered by
the Rule, would reduce access to vaccines and other medical
care, resulting in an increased risk of an outbreak of infectious
disease among the general public. To recognize the truth in
No. 19-3169 35
that prediction, one need only consider the current outbreak
of COVID-19—a pandemic that does not respect the differ-
ences between citizens and noncitizens.
There is also the added burden on states and local govern-
ments, which must disentangle their purely state-funded pro-
grams from covered federal programs. The federal govern-
ment has no interest in the way that states and localities
choose to spend their money. There is no reason why immi-
grants should not continue to benefit from the state programs
without being penalized at the federal level. The Rule will
force states to make their own public welfare programs more
robust to compensate for a reduction in the availability of fed-
eral programs. DHS touts the savings to the federal govern-
ment from the Rule, primarily through a significant reduction
in transfer payments to the states (including, it should be
noted, for persons who disenroll unnecessarily because of the
chilling effect), but at the same time it expects the states to fill
the gaps and continue to provide critical services such as pre-
ventive healthcare. See, e.g., id. at 41385 (“In addition, local
health centers and state health departments provide preven-
tive services that include vaccines that may be offered on a
sliding scale fee based on income. Therefore, DHS believes
that vaccines would still be available for children and adults
even if they disenroll from Medicaid.”). It assumes this while
simultaneously denying that the Rule will have “substantial
direct effects on the States, on the relationship between the
Federal Government and the States, or on the distribution of
power and responsibilities among the various levels of gov-
ernment.” Id. at 41481.
Cook County also asserts that DHS failed to give a logical
rationale for its chosen durational threshold. In its notice of
36 No. 19-3169
proposed rulemaking, DHS proposed an array of thresholds
that would apply before benefits can be counted against a
noncitizen in the public charge analysis. Those lines came un-
der sharp criticism for being arbitrary, confusing, and an un-
acceptable proxy for undue reliance on public support. Id. at
41357–58.
In the final Rule, DHS opted for the single threshold for
both monetizable and nonmonetizable benefits of 12 months
(stacked) over a 36-month period. It touted this approach as
“particularly responsive to public comments that communi-
cated concerns about the complexity of the bifurcated stand-
ard and lack of certainty.” Id. at 41358. It also asserted that the
12/36 standard “is consistent with DHS’s interpretation of the
term ’public charge.’” Id. at 41359. DHS equates the term
“public charge” with a lack of “self-sufficiency” and it regards
anyone who fails its test as not self-sufficient. Id. It defends its
stacking mandate on the theory that it “ensures that aliens
who receive more than one public benefit (which may be more
indicative of a lack of self-sufficiency, with respect to the ful-
fillment of multiple types of basic needs) reach the 12-month
limit faster.” Id. at 41361. DHS concluded that the bright-line
rule “provides meaningful guidance to aliens and adjudica-
tors, … accommodates meaningful short-term and intermit-
tent access to public benefits, and … does not excuse continu-
ous or consistent public benefit receipt that denotes a lack of
self-sufficiency.” Id.
This explains how DHS incorporated its understanding of
“self-sufficiency” into the Rule. But we still have a textual
problem. The INA does not call for total self-sufficiency at
every moment; it uses the words “public charge.” DHS sees
“lack of complete self-sufficiency” and “public charge” as
No. 19-3169 37
synonyms: in its view, receipt of any public benefit, particu-
larly one related to core needs such as health care, housing,
and nutrition, shows that a person is not self-sufficient. See id.
at 41356. This is an absolutist sense of self-sufficiency that no
person in a modern society could satisfy; everyone relies on
nonmonetary governmental programs, such as food safety,
police protection, and emergency services. DHS does not offer
any justification for its extreme view, which has no basis in
the text or history of the INA. As we explained earlier, since
the first federal immigration law in 1882, Congress has as-
sumed that immigrants (like others) might face economic in-
security at some point. Instead of penalizing immigrants by
denying them entry or the right to adjust status, Congress
built into the law accommodations for that reality. Also, as
numerous commenters on the Rule pointed out, the benefits
it covers are largely supplemental and not intended to be, or
relied upon as, a primary resource for recipients. Many recip-
ients could get by without them, though as a result they
would face greater health, nutrition, and housing insecurity,
which in turn would likely harm their work or educational
attainment (and hence their ability to be self-sufficient).
Finally, Cook County contends that the Rule adds irra-
tional factors into the public-charge assessment, including
family size, mere application for benefits, English-language
proficiency, lack of disability, and good credit history. With
respect to language, we note the obvious: someone whose
English is limited on the date of entry may be entirely compe-
tent five years later, when the person first becomes eligible for
benefits under the Welfare Reform Act and related laws. In
almost all cases, an immigration official making a determina-
tion about whether someone is likely to become a public
38 No. 19-3169
charge will be speculating about that person’s family size, lin-
guistic abilities, credit score, and the like no fewer than five
years in the future.
Even if we grant that these new factors carry some mini-
mal probative value, it is unclear to us, and DHS nowhere ex-
plains, how immigration officials are supposed to make these
predictions in a nonarbitrary way. Worse, for many people
the relevant time is not five years—it is eternity, because the
Rule calls for officials to guess whether an immigrant will be-
come a public charge at any time. There is a great risk that of-
ficials will make their determination based on stereotype or
unsupported assumptions, rather than on the type of objec-
tive facts called for by the Act (age, present health, family sta-
tus, financial situation, and education or skills).
DHS also never explains why it chose not to take into ac-
count the possibility that an immigrant might, at some point
in the future, be able to repay the value of public benefits re-
ceived. Someone who seeks to adjust status will be penalized
for having previously received public benefits without being
given the opportunity to refund the government the cost of
those benefits. This is new: the regulations governing depor-
tation on public-charge grounds require a demand and a fail-
ure to pay. See 64 Fed. Reg. at 28691.
All of this convinces us that this Rule is likely to fail the
“arbitrary and capricious” standard. The Rule has numerous
unexplained serious flaws: DHS did not adequately consider
the reliance interests of state and local governments; did not
acknowledge or address the significant, predictable collateral
consequences of the Rule; incorporated into the term “public
charge” an understanding of self-sufficiency that has no basis
in the statute it supposedly interprets; and failed to address
No. 19-3169 39
critical issues such as the relevance of the five-year waiting
period for immigrant eligibility for most federal benefits.
B. Other Criteria for Preliminary Injunction
We have spent most of our time on likelihood of success
on the merits, because that is the critical factor here. We add
only a few words about the other requirements for prelimi-
nary relief. Cook County had to show that it is likely to suffer
irreparable harm in the absence of preliminary relief; that le-
gal remedies are inadequate; and that the balance of equities
tips in their favor. The district court found that it did so.
As we noted earlier, Cook County has shown that the Rule
will cause immigrants, including those not covered by the
Rule, to disenroll from, or refrain from enrolling in, federal
Medicaid and state-level public health programs. This already
has led to reduction in rates of preventive medicine and
caused immigrants to rely on uncompensated emergency care
from Cook County’s hospital system; the record supports the
prediction that those harms will only get worse. The result for
the County will be a significant increase in costs it must bear
and a higher county-wide risk of vaccine-preventable and
other communicable diseases for its population as a whole.
The record also supports the district court’s finding that Cook
County will have to divert resources away from existing pro-
grams to respond to the effects of the Rule.
The district court was also on solid ground in finding that
Cook County lacks adequate legal remedies for the injuries
imposed by the Rule. The APA provides a limited waiver of
the United States’ sovereign immunity and supports a claim
for a challenge to agency action, but only to the extent that the
plaintiffs “seek relief other than money damages.” 5 U.S.C.
40 No. 19-3169
§ 702. There is thus no post-hoc legal remedy available to
Cook County to redress the financial harms it stands to suffer
as a result of the Rule. It is injunctive relief or nothing.
With respect to the balance of harms, we must take ac-
count of the Supreme Court’s decision to stay the preliminary
injunction entered by the district court. The Court’s stay deci-
sion was not a merits ruling. To succeed in obtaining a stay
from the Supreme Court, an applicant “must demonstrate (1)
a reasonable probability that four Justices will consider the is-
sue sufficiently meritorious to grant certiorari or to note prob-
able jurisdiction; (2) a fair prospect that a majority of the Court
will conclude that the decision below was erroneous; and (3)
a likelihood that irreparable harm will result from the denial
of a stay.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009)
(Ginsburg, J., in chambers). Stays, the Court tells us, are
“granted only in extraordinary cases.” Id. We do not know
why the Court granted this stay, because it did so by sum-
mary order, but we assume that it abided by the normal
standards. Consequently, the stay provides an indication that
the Court thinks that there is at least a fair prospect that DHS
should prevail and faces a greater threat of irreparable harm
than the plaintiffs.
The stay thus preserves the status quo while this case and
others percolate up from courts around the country. There
would be no point in the merits stage if an issuance of a stay
must be understood as a sub silentio disposition of the under-
lying dispute. With the benefit of more time for consideration
and the complete preliminary injunction record, we believe
that it is our duty to evaluate each of the preliminary injunc-
tion factors, including the balance of equities. In so doing, we
apply a “sliding scale” approach in which “the more likely the
No. 19-3169 41
plaintiff is to win, the less heavily need the balance of harms
weigh in his favor; the less likely he is to win, the more need
it weigh in his favor.” Valencia v. City of Springfield, 883 F.3d at
966. We also consider effects that granting or denying the pre-
liminary injunction would have on the public. Id.
In our view, Cook County has shown that it is likely to
suffer (and has already begun to suffer) irreparable harm
caused by the Rule. Given the dramatic shift in policy the Rule
reflects and the potentially dire public health consequences of
the Rule, we agree with the district court that the public inter-
est is better served for the time being by preliminarily enjoin-
ing the Rule.
IV. Conclusion
While we disagree with the district court that this case can
be resolved at step one of the Chevron analysis, we agree that
at least Cook County has standing to sue. We make no ruling
on ICIRR’s standing, and so we have based the remainder of
our opinion on Cook County’s situation only. The district
court did not abuse its discretion or err as a matter of law
when it concluded that Cook County is likely to succeed on
the merits of its APA claims against DHS. Nor did the district
court’s handling of the balance of harms and lack of alterna-
tive legal remedies represent an abuse of discretion. We there-
fore AFFIRM the district court’s order entering a preliminary
injunction.
42 No. 19-3169
BARRETT, Circuit Judge, dissenting.
The plaintiffs have worked hard to show that the statutory
term “public charge” is a very narrow one, excluding only
those green card applicants likely to be primarily and perma-
nently dependent on public assistance. That argument is be-
lied by the term’s historical meaning—but even more im-
portantly, it is belied by the text of the current statute, which
was amended in 1996 to increase the bite of the public charge
determination. When the use of “public charge” in the Immi-
gration and Nationality Act (INA) is viewed in the context of
these amendments, it becomes very difficult to maintain that
the definition adopted by the Department of Homeland Secu-
rity (DHS) is unreasonable. Recognizing this, the plaintiffs try
to cast the 1996 amendments as irrelevant to the meaning of
“public charge.” That argument, however, flies in the face of
the statute—which means that despite their best efforts, the
plaintiffs’ interpretive challenge is an uphill battle that they
are unlikely to win.
I therefore disagree with the majority’s conclusion that the
plaintiffs’ challenge to DHS’s definition of “public charge” is
likely to succeed at Chevron step two. I express no view, how-
ever, on the majority’s analysis of the plaintiffs’ other chal-
lenges to the rule under the Administrative Procedure Act.
The district court did not reach them, and the plaintiffs barely
briefed them. The preliminary injunction was based solely on
the district court’s interpretation of the term “public charge.”
Because its analysis was flawed, I would vacate the injunction
and remand the case to the district court, where the plaintiffs
would be free to develop their other arguments.
No 19-3169 43
I.
There is a lot of confusion surrounding the public charge
rule, so I’ll start by addressing who it affects and how it
works. The plaintiffs emphasize that the rule will prompt
many noncitizens to drop or forgo public assistance, lest their
use of benefits jeopardize their immigration status. That’s
happening already, and it’s why Cook County has standing:
noncitizens who give up government-funded healthcare are
likely to rely on the county-funded emergency room. But it’s
important to recognize that immigrants are dropping or for-
going aid out of misunderstanding or fear because, with very
rare exceptions, those entitled to receive public benefits will
never be subject to the public charge rule. Contrary to popular
perception, the force of the rule does not fall on immigrants
who have received benefits in the past. Rather, it falls on
nonimmigrant visa holders who, if granted a green card,
would become eligible for benefits in the future.
To see why, one must be clear-eyed about the fact that fed-
eral law is not particularly generous about extending public
assistance to noncitizens. That is not a function of the public
charge rule; it is a function of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 110 Stat. 2105 (1996), commonly referred to as the
“Welfare Reform Act.” Under the Act, undocumented noncit-
izens are ineligible for benefits. So are nonimmigrant visa
holders, a category that encompasses noncitizens granted
permission to be in the United States for a defined period—
think of tourists, students, and temporary workers. See 8
U.S.C. §§ 1611(a), 1621(a), 1641(b) (excluding undocumented
noncitizens and nonimmigrant visa holders from the list of
44 No. 19-3169
noncitizens “qualified” for government benefits). 1 Because of
these restrictions, many noncitizens are altogether ineligible
for the benefits relevant to a public charge determination.
Only two major groups are statutorily eligible to receive
the benefits that the public charge rule addresses, and the rule
has little to no effect on either. The first group is certain espe-
cially vulnerable populations—refugees and asylees, among
others. Congress has entitled these vulnerable noncitizens to
public assistance, 8 U.S.C. § 1641(b), and exempted them from
the public charge exclusion, id. §§ 1157(c)(3), 1159(c). That
means that their need for aid is not considered when they are
admitted to the United States, nor is their actual receipt of aid
considered in any later adjustment-of-status proceeding. The
1 There are some narrow exceptions, but they are irrelevant to the
“public charge” determination. All noncitizens, including the undocu-
mented, are eligible to receive short-term, in-kind emergency disaster re-
lief; certain forms of emergency medical assistance; public-health assis-
tance for immunization, as well as treatment for the symptoms of com-
municable disease; other in-kind services such as soup kitchens and crisis
counseling; and housing benefits to the extent that the noncitizen was re-
ceiving public housing prior to 1996. 8 U.S.C. §§ 1611(b), 1621(b). Other
than the housing benefits, none of this aid counts under the rule’s defini-
tion of a “public benefit,” so none has any effect on any future adjustment-
of-status proceeding. See 8 C.F.R. § 212.21; see also Inadmissibility on Pub-
lic Charge Grounds, 84 Fed. Reg. 41,292, 41,313 (Aug. 14, 2019) (noting that
the rule’s “definition does not include benefits related exclusively to emer-
gency response, immunization, education, or social services”); id. at 41,482
(explaining that the rule’s definition “does not include emergency aid,
emergency medical assistance, or disaster relief”). And while housing
benefits are covered by the public charge rule, 8 C.F.R. § 212.21, they are
largely irrelevant because the number of noncitizens still within the
grandfathering provision has presumably dwindled dramatically in the
quarter century since the Welfare Reform Act was passed.
No 19-3169 45
public charge rule is entirely irrelevant to the most vulnera-
ble.
The second group eligible for benefits is lawful permanent
residents, often referred to as green card holders, and the rule
is almost entirely irrelevant to them too. Here’s why: The pub-
lic charge exclusion applies to noncitizens at the admission
stage or an adjustment-of-status proceeding. Id.
§ 1182(a)(4)(A). (“Admission” is a term of art referring to “the
lawful entry of the alien into the United States after inspection
and authorization by an immigration officer.” Id.
§ 1101(a)(13)(A).) Lawful permanent residents have already
been admitted to the United States, and they already possess
the most protected immigrant status. They are therefore not
subject to the public charge exclusion unless they jeopardize
their lawful permanent residency. See id. § 1101(a)(13)(C) (de-
scribing the narrow circumstances in which lawful perma-
nent residents are considered to be “seeking an admission”).
Most relevant here, a green card holder who leaves the coun-
try for more than 180 days puts her residency in question and
might need to “seek[] an admission” upon returning to the
United States. Id. § 1011(a)(13)(C)(iii). If she used benefits
prior to her departure, then her use of those benefits might
count against her at reentry. But this consequence is easy to
avoid by keeping trips abroad shorter than six months. It’s
also worth noting that a lawful permanent resident is eligible
to receive very few benefits until she has been here for five
years—which is the point at which she is eligible for citizen-
ship. Id. § 1427(a). Naturalization eliminates even the small
risk that a lawful permanent resident would ever face the ad-
mission process again. Notably, the rule doesn’t apply at the
naturalization stage. See id. § 1429.
46 No. 19-3169
The upshot is that the public charge rule will rarely apply
to a noncitizen who has received benefits in the past. 2 Indeed,
in the Second Circuit case challenging this same rule, both the
government and the plaintiffs conceded as much. When
pressed to identify who could be penalized under the public
charge rule for using benefits, neither side identified any ex-
ample other than the 180-day departure of a lawful perma-
nent resident. See Oral Argument at 36:06–38:47, 1:03:45–
1:04:40, New York v. U.S. Dep’t of Homeland Sec., Nos. 19-3591,
19-3595 (2d Cir. Mar. 2, 2020), https://www.c-
span.org/video/?469804-1/oral-argument-trump-administra-
tion-public-charge.
Notwithstanding all of this, many lawful permanent resi-
dents, refugees, asylees, and even naturalized citizens have
disenrolled from government-benefit programs since the
public charge rule was announced. Given the complexity of
immigration law, it is unsurprising that many are confused or
fearful about how the rule might apply to them. Still, the pat-
tern of disenrollment does not reflect the rule’s actual scope.
Focusing on the source of Cook County’s injury can therefore
be misleading.
That does not mean, however, that the rule has no effect.
Even though it is almost entirely inapplicable to those cur-
rently eligible for benefits, it significantly affects a different
group: nonimmigrant visa holders applying for green cards.
2Hence the majority is wrong to treat the rule as unreasonable be-
cause it “set[s] a trap for the unwary.” Maj. Op. at 29. Because those eligi-
ble for the designated benefits are not subject to the rule—except in very
rare circumstances—it does not “penaliz[e] people for accepting benefits
Congress made available to them.” Id.
No 19-3169 47
Recall that nonimmigrant visa holders, unlike lawful perma-
nent residents and those holding humanitarian-based visas,
are ineligible for the relevant benefits in their current immi-
gration status. If granted lawful permanent residency,
though, they would become eligible for these benefits in the
future. The public charge rule is concerned with what use a
green card applicant would make of this future eligibility. As
a leading treatise puts it, the public charge determination is a
“prophetic” one. 5 CHARLES GORDON ET AL., IMMIGRATION
LAW AND PROCEDURE § 63.05[3] (2019). If DHS predicts that an
applicant is likely to rely too heavily on government assis-
tance, it will deny her lawful permanent residency on the
ground that she is likely to become a public charge. This case
is about whether DHS has defined “public charge” too expan-
sively and is therefore turning too many noncitizens away.
There are four major routes to obtaining the status of law-
ful permanent resident: humanitarian protection (refugees
and asylees), the sponsorship of a family member, employ-
ment, and winning what is known as the green card lottery. 3
See U.S. DEP’T OF HOMELAND SEC., OFFICE OF IMMIGRATION
STATISTICS, ANNUAL FLOW REPORT: LAWFUL PERMANENT
RESIDENTS 3–4 (2018), https://www.dhs.gov/sites/de-
fault/files/publications/Lawful_Permanent_Resi-
dents_2017.pdf. Those seeking humanitarian protection are
not subject to the statutory provision rendering inadmissible
any “alien who … is likely at any time to become a public
charge,” 8 U.S.C. § 1182(a)(4)(A), and only a subset of those in
the remaining three categories will be subject to the DHS rule.
3 The diversity visa, commonly referred to as the green card lottery, is
awarded to foreign nationals from underrepresented countries in an effort
to increase diversity within the United States. See 8 U.S.C. § 1153(c).
48 No. 19-3169
That is because DHS only handles the applications of noncit-
izens who apply from within the United States; the State De-
partment processes the applications of noncitizens who apply
from abroad. 4 This division of authority means that, as a prac-
tical matter, the regulation applies to those present in the
United States on nonimmigrant visas who seek to adjust their
status to that of lawful permanent residents. And because the
green card lottery is processed almost entirely by the State De-
partment, the DHS rule applies primarily to employment-
based applicants and family-based applicants (by far the
larger of these two groups). 5
As nonimmigrant visa holders, these applicants have not
previously been eligible for the benefits designated by DHS’s
rule—so the determination is not a backward-looking inquiry
into whether they have used such benefits in the past. Instead,
it is a forward-looking inquiry into whether they are likely to
use such benefits in the future. The rule guides this forward-
looking inquiry. Under the 1999 Guidance, an applicant was
4 The State Department has adopted the interpretation set forth in this
rule, but its implementation of the public charge exclusion is not at issue
in this case. See Visas: Ineligibility on Public Charge Grounds, 84 Fed. Reg.
54,996, 55,000 (Oct. 11, 2019).
5 In 2019, approximately 572,000 noncitizens adjusted their status to
that of lawful permanent residents. The largest group—roughly 330,000—
were family based, and the majority of those (over 217,000) were spouses
of U.S. citizens. About 111,000 were employment based, and only about
1,000 were lottery winners. The vast majority of the remaining 130,000
noncitizens—refugees and asylees, among others—were exempt from the
public charge rule. See Legal Immigration and Adjustment of Status Report
Data Tables: FY 2019, U.S. DEP’T HOMELAND SECURITY tbl.1B (Jan. 15, 2020),
https://www.dhs.gov/immigration-statistics/readingroom/spe-
cial/LIASR#.
No 19-3169 49
excluded only if she was likely to be institutionalized or pri-
marily dependent on government cash assistance for the long
term. Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26,
1999). Now, DHS considers the applicant’s potential usage
not only of cash assistance for income maintenance (including
Temporary Assistance for Needy Families (TANF), Supple-
mental Security Income (SSI), and state cash assistance), but
also of the Supplemental Nutrition Assistance Program
(SNAP), the Section 8 Housing Choice Voucher Program, Sec-
tion 8 project-based rental assistance, housing benefits under
Section 9, and Medicaid (with some explicit exceptions). 8
C.F.R. § 212.21. And if DHS concludes that an applicant is
likely to use more than 12 months’ worth of these benefits—
with the use of 2 benefits in 1 month counting as 2 months—
it will deem her “likely to become a public charge” and deny
the green card. Id.
This heightened standard for admissibility is a significant
change—but it’s not the one that the plaintiffs’ emphasis on
disenrollment suggests. Evaluating the rule requires a clear
view of what it actually does; so, with the rule’s scope in
mind, I turn to the merits.
II.
While I agree with the majority’s bottom-line conclusion
at Chevron step one that “public charge” does not refer exclu-
sively to one who is primarily and permanently dependent on
government assistance, I have a little to add to the history and
a lot to add to the statutory analysis. In my view, the majority
takes several wrong turns in analyzing the statute that skew
its thinking about Chevron step two. For purposes of this Part,
the most significant is that the majority accepts the plaintiffs’
50 No. 19-3169
view that the 1996 amendments to the public charge provision
were irrelevant. In what follows, I’ll lay out my own analysis
of the plaintiffs’ arguments, which will explain why I wind
up in a different place than the majority does on the reasona-
bleness of DHS’s interpretation of the statute.
The plaintiffs advance three basic arguments as to why the
term “public charge” refers exclusively to one who is “pri-
marily and permanently” dependent on government assis-
tance. First, they say that the term had that meaning when it
first appeared in the 1882 federal statute. Second, they con-
tend that even if the term was unsettled in the late nineteenth
century, subsequent judicial and administrative decisions
narrowed it, and later amendments to the statute ratified
these interpretations. Third, they argue that interpreting the
term “public charge” to encompass anything short of primary
and permanent dependence conflicts with Congress’s choice
to make supplemental government benefits available to im-
migrants. I’ll take these arguments in turn.
A.
The plaintiffs first argue that in the late nineteenth cen-
tury, “public charge” meant primary and permanent depend-
ence. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(“[I]t’s a ‘fundamental canon of statutory construction’ that
words generally should be ‘interpreted as taking their ordi-
nary … meaning … at the time Congress enacted the stat-
ute.’” (citation omitted)). Evaluating this argument requires
careful consideration of a term with a long history. The term
“public charge” was borrowed from state “poor laws,” which
were in turn modeled on their English counterparts.
HIDETAKA HIROTA, EXPELLING THE POOR: ATLANTIC SEABOARD
STATES AND THE NINETEENTH-CENTURY ORIGINS OF AMERICAN
No 19-3169 51
IMMIGRATION POLICY 43–47 (2017). Early poor laws used
“public charge” synonymously with “public expense,” refer-
ring to any burden on the public fisc. Thus, when someone
sought assistance from a city or county overseer of the poor,
the cost of the relief provided was entered on the overseer’s
books as a public charge—that is, an expense properly charge-
able to, and therefore funded by, the public. Over time, the
term “public charge” came to refer (at least in the context of
poor relief and immigration laws) not only to expenditures
made under the poor laws, but also to the people who de-
pended on these expenditures. 6
State legislatures, worried about the burden that destitute
immigrants might place on programs to aid the needy, co-
opted the poor-law language into immigration legislation. In
1847, New York created an administrative apparatus for deal-
ing with the influx of immigrants. The new “Commissioners
of Emigration” were tasked with examining incoming passen-
gers to determine if “there shall be found among such passen-
gers, any lunatic, idiot, deaf and dumb, blind or infirm per-
sons … who, from attending circumstances, are likely to be-
come permanently a public charge”—language, incidentally,
that suggests that one could be a public charge either tempo-
rarily or permanently. Act of May 5, 1847, ch. 195, § 3, 1847
N.Y. Laws 182, 184. These individuals were permitted to land
in the state upon payment of a bond by the vessel’s master “to
indemnify … each and every city, town and county within
6 This is why nineteenth-century dictionary definitions of “charge”
are unhelpful. The words “public” and “charge” comprise a unit that must
be understood in the context of the laws that used the phrase. Cf. Yates v.
United States, 135 S. Ct. 1074, 1082 (2015) (“[A]lthough dictionary defini-
tions of the words ‘tangible’ and ‘object’ bear consideration, they are not
dispositive of the meaning of ‘tangible object’ ….”).
52 No. 19-3169
this state, from any cost or charge … for the maintenance or
support of the person … within five years.” Id. The bonds
paid for the landing of these immigrants were then used to
pay for the state immigration infrastructure, including the
provision of some temporary aid to new arrivals. Two years
later, the state expanded the category of people for whom a
bond was required. Still excluded were those “likely to be-
come permanently a public charge” but also those “who have
been paupers in any other country, or who from sickness or
disease, existing at the time of departing from the foreign
port, are or are likely to soon become a public charge.” Act of
Apr. 11, 1849, ch. 350, § 3, 1849 N.Y. Laws 504, 506. By 1851,
the New York statute contained the language which would be
included in both the 1882 and 1891 federal statutes. Gone was
the reference to those “likely to become permanently a public
charge,” replaced by phrases referring to someone “unable to
take care of himself or herself without becoming a public
charge” and someone “likely to become a public charge.” Act
of July 11, 1851, ch. 523, § 4, 1851 N.Y. Laws 969, 971. In the
event that a bond was unpaid, New York—and Massachu-
setts, which enacted a substantially similar law—ordered the
exclusion of those immigrants deemed “likely to soon become
a public charge.” HIROTA, supra, at 71–72.
The bond system was held unconstitutional by the U.S. Su-
preme Court on the ground that that the power to tax incom-
ing foreign passengers “has been confided to Congress by the
Constitution.” Henderson v. Mayor of New York, 92 U.S. 259, 274
(1876). The decision threw the state systems into uncertainty
and created demand for federal legislation, largely to reenact
the defunct state policies and to replace the lost funding. Since
the states could no longer fund their immigration systems us-
ing state bonds, the 1882 federal statute levied “a duty of fifty
No 19-3169 53
cents for each and every passenger not a citizen of the United
States” arriving by sea; this was to “constitute a fund … to
defray the expense of regulating immigration … and for the
care of immigrants arriving in the United States, for the relief
of such as are in distress.” Act of Aug. 3, 1882, ch. 376, § 1, 22
Stat. 214, 214. The first federal statute therefore filled the space
left by the now-ineffective state laws: it used funds raised
from the immigrants or their carriers to provide some care for
the newly arrived, while describing criteria for excluding
those likely to financially burden state and local governments.
Because the term “public charge” had been pulled directly
from the state statutes, it presumably had the same meaning
that it had come to have under the state laws: someone who
depended, or would likely depend, on poor-relief programs.
But when the term “public charge” was imported into fed-
eral law, it was unclear how much state aid qualified someone
as a “public charge.” Neither state poor laws nor state immi-
gration laws defined “public charge,” and no clear definition
emerged in judicial opinions or secondary sources, either.
Early efforts to enforce the 1882 statute bear out the uncer-
tainty surrounding the term. In 1884, an association of ten
steamship companies asked the Secretary of the Treasury, on
whom responsibility for immigration fell at the time, to “spe-
cifically define … the circumstances which shall constitute ‘a
person unable to take care of himself or herself without be-
coming a public charge,’ and who shall not be permitted to
land under … the [1882] act.” SYNOPSIS OF THE DECISIONS OF
THE TREASURY DEPARTMENT ON THE CONSTRUCTION OF THE
TARIFF, NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDED
DECEMBER 31, 1884, at 365 (1885). (The steamship companies
had a stake because they were on the hook for the noncitizen’s
return ticket if she was rejected as a likely public charge.) The
54 No. 19-3169
Secretary demurred, answering that “the determination of the
liability of arriving immigrants to become public charges is
vested … in the commissioners of immigration appointed by
the State in which such immigrants arrive,” and thus “this De-
partment must decline to interfere in the matter.” Id. One year
later, Treasury continued to recognize that “difficulties have
arisen in regard to the construction of so much of section 2 of
[the 1882 act] … as refers to the landing of convicts, lunatics,
idiots, or persons unable to take care of themselves without
becoming a public charge,” though it still refused to offer clar-
ification. SYNOPSIS OF THE DECISIONS OF THE TREASURY
DEPARTMENT ON THE CONSTRUCTION OF THE TARIFF,
NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDING
DECEMBER 31, 1885, at 359 (1886).
The term was not necessarily clarified in 1891, when im-
migration-enforcement authority was placed directly in the
hands of federal officials. (From 1882 until Congress enacted
the Immigration Act of 1891, states had continued to admin-
ister immigration enforcement, albeit under authority con-
ferred by the federal statute.) With the change in administra-
tion, the steamship companies continued to express confu-
sion, informing Treasury officials that the phrase “was some-
what indefinite and [that they] desired to have a more specific
explanation of its meaning.” 1 LETTER FROM THE SECRETARY OF
THE TREASURY, TRANSMITTING A REPORT OF THE
COMMISSIONERS OF IMMIGRATION UPON THE CAUSES WHICH
INCITE IMMIGRATION TO THE UNITED STATES 109 (1892). At this
point, Treasury offered an answer, but it was hardly clarify-
ing. Pressed by Congress to describe the standards used by
officials to determine whether an immigrant was “likely to be-
come a public charge,” the Assistant Secretary in 1892 re-
sponded that “written instructions and an inflexible standard
No 19-3169 55
would be inapplicable and impracticable … and the sound
discretion of the inspection officer, subject to appeal as pre-
scribed by law, must be the chief reliance.” H.R. REP. NO. 52-
2090, at 4 (1892).
Rather than conveying something narrow and definite, the
term “public charge” seemed to refer in an imprecise way to
someone who lacked self-sufficiency and therefore burdened
taxpayers. Explanations of the term offered in a congressional
hearing by John Weber, the first commissioner of immigration
at Ellis Island, illustrate the point. He explained that “[t]he
appearance of the man, his vocation, his willingness to work,
his apparent industry, and the demand for the kind of work
that he is ready to give, is what governs” whether an individ-
ual was likely to become a public charge. Id. at 359. When
asked whether an immigrant would be considered likely to
become a public charge if “it is necessary that a private charity
shall furnish food and lodging … for a period long or short
after landing,” Weber responded that such a person would
likely be considered a public charge, but that it would not vi-
olate the statute to allow him to land so long as it was obvious
that he would be “supported on private charity only up to the
time when [he got] employment, which may only be until the
next day.” Id. at 425.
The repeated requests for clarification from steamship op-
erators and Congress, coupled with Treasury’s reluctance to
provide a concrete answer, indicate that the term did not have
a definite and fixed meaning. That is unsurprising in the con-
text of the time: it would have been difficult to have a one-
size-fits-all definition of how much aid was too much, be-
cause there was not a one-size-fits-all system of welfare. Poor
relief was largely handled by towns and counties, which
56 No. 19-3169
made their own choices about how to deliver aid. Most local-
ities deployed “outdoor relief”—in-kind and cash support
without institutionalization. See MICHAEL B. KATZ, IN THE
SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN
AMERICA 37 (1986) (“[P]oorhouses did not end public outdoor
relief. With a few exceptions, most towns, cities, and counties
helped more people outside of poorhouses than within
them.”). Other areas were more reliant on “indoor” relief in
the form of poorhouses. Id. at 16–18. Some used a mixed sys-
tem, adjusting the provision of indoor and outdoor relief as
poorhouse populations ebbed and flowed. Id. at 39. And
while the plaintiffs treat residence in a poorhouse as a proxy
for primary and permanent dependence, that’s not how poor-
houses worked—they housed a mix of the permanently and
temporarily dependent, serving as “both a short-term refuge
for people in trouble and a home for the helpless and elderly.”
Id. at 90.
The bottom line is that in the closing decades of the nine-
teenth century, several different forms of public relief existed
contiguously. And when nineteenth-century immigration of-
ficials determined whether someone was “likely to become a
public charge,” dependence on a particular kind or amount of
relief does not appear to have been dispositive. Rather than
serving as shorthand for a certain type or duration of aid, the
term “public charge” referred to a lack of self-sufficiency that
officials had broad discretion to estimate. Neither state legis-
latures nor Congress pinned down the term any more than
that.
B.
The plaintiffs have a backup argument: even if the term
was unsettled in the late nineteenth century, they claim that it
No 19-3169 57
became settled in the twentieth. According to the plaintiffs,
courts and administrative agencies repeatedly held that “pub-
lic charge” meant one who is “primarily and permanently de-
pendent” on the government, and Congress ratified this set-
tled meaning in its many reenactments of the public charge
provision. See WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A
PRIMER ON HOW TO READ STATUTES AND THE CONSTITUTION
app. at 421 (2016) (“When Congress reenacts a statute, it in-
corporates settled interpretations of the reenacted statute.”).
Thus, the plaintiffs say, whatever uncertainty may have sur-
rounded the term in 1882, there was no uncertainty when
Congress reenacted the provision. And because Congress
reenacted the provision many times—in 1891, 1907, 1917,
1952, 1990, and 1996—the plaintiffs canvass a century’s worth
of judicial and administrative precedent in an effort to show
that a consensus existed before at least one of these reenact-
ments.
The bar for establishing a settled interpretation is high: at
the time of reenactment, the judicial consensus must have
been “so broad and unquestioned that we must presume Con-
gress knew of and endorsed it.” Jama v. Immigration & Customs
Enf’t, 543 U.S. 335, 349 (2005). The plaintiffs rely heavily on
Gegiow v. Uhl, 239 U.S. 3 (1915), to establish this consensus,
but I share the majority’s view that Gegiow doesn’t do the
work that the plaintiffs want it to. In that case, the Court did
not define “public charge” other than to say that it cannot be
defined with reference to labor conditions in the city in which
an immigrant intends to settle. The Court concluded that im-
migrant arrivals “are to be excluded on the ground of perma-
nent personal objections accompanying them irrespective of
local conditions unless the one phrase before us [public
charge] is directed to different considerations than any other
58 No. 19-3169
of those with which it is associated.” Id. at 10. In other words,
classifying someone as a likely “public charge” does not de-
pend on whether he is bound for Portland or St. Paul. The
Court did not define the degree of reliance that renders some-
one a “public charge,” because that was not the question be-
fore it. Thus, Gegiow neither binds us nor offers a definition
that Congress could have ratified. 7
Without Gegiow, the plaintiffs face an uphill battle because
satisfying the requirements of the reenactment canon typi-
cally requires at least one Supreme Court decision. See, e.g.,
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11 (2009);
Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979). And for the
reasons that the majority gives, this is not the rare case in
which lower court and administrative decisions are enough
to demonstrate a consensus. See Maj. Op. at 21–22; see also Wil-
liam N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH.
L. REV. 67, 83 (1988) (“[T]he Court often will not incorporate
lower court decisions into a statute through the reenactment
rule.”); cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys.
7 It is worth noting that even after Gegiow, state and local governments
took varied positions on what it meant for an immigrant to be a public
charge. For instance, in the 1920s, Los Angeles worked closely with chari-
table institutions to report as public charges immigrants who were receiv-
ing outdoor relief. Cybelle Fox, The Boundaries of Social Citizenship:
Race, Immigration and the American Welfare State, 1900–1950, at 266–67
(May 7, 2007) (unpublished Ph.D. dissertation, Harvard University). But
other jurisdictions rarely reported immigrants who were receiving only
outdoor relief—for example, as early as the 1920s, Cook County devel-
oped its own local policy to not “deport when the necessity for public care
[was] only temporary.” Id. at 278.
No 19-3169 59
Project, Inc., 135 S. Ct. 2507, 2520 (2015) (applying the reenact-
ment canon in light of “the unanimous holdings of the Courts
of Appeals”) (emphasis added).
In any event, the reenactment canon requires more than a
judicial consensus—it applies only if Congress reenacted the
provision without making material changes. Jama, 543 U.S. at
349; see also Holder v. Martinez Gutierrez, 566 U.S. 583, 593
(2012) (“[T]he doctrine of congressional ratification applies
only when Congress reenacts a statute without relevant
change.”). Whatever one thinks of earlier changes to the pub-
lic charge provision, there can be no doubt that the 1996
amendments were material.
The INA is notoriously complex, and these amendments
are no exception. Making matters worse, the amendments
came from two separate acts, themselves incredibly complex,
that were passed a month apart: the Welfare Reform Act, Pub.
L. No. 104-193, 110 Stat. 2105 (1996), and the Illegal Immigra-
tion Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, 110 Stat. 3009-546 (1996) (IIRIRA). But because the
plaintiffs challenge the materiality of these amendments to
the meaning of the term “public charge,” it is necessary to step
through them at a level of detail that is, unfortunately, excru-
ciating.
Congress enacted IIRIRA, which made sweeping changes
to the INA, in September of 1996. Among its changes were
several material amendments to the public charge provision.
For the first time in the provision’s 114-year history, Congress
required the Executive to consider an itemized list of factors
in making the public charge determination, thereby ensuring
that the inquiry was searching rather than superficial. See 8
U.S.C. § 1182(a)(4)(B)(i) (providing that “the consular officer
60 No. 19-3169
or the Attorney General shall at a minimum consider” the
noncitizen’s age; health; family status; assets, resources, and
financial status; and education and skills). Even more signifi-
cantly, it added a subsection to the public charge provision
rendering most family-sponsored applicants automatically
inadmissible on public charge grounds unless they obtained
an enforceable affidavit of support from a sponsor (usually
the family member petitioning for their admission). Id.
§ 1182(a)(4)(C) (rendering a family-sponsored noncitizen “in-
admissible under this paragraph” unless the sponsor executes
an “affidavit of support described in [8 U.S.C. § 1183a] with
respect to such alien”).8 The affidavit provision had been in-
serted into the INA weeks earlier by the Welfare Reform Act.
See Welfare Reform Act § 423. In addition to making the affi-
davit of support mandatory under the public charge provi-
sion, IIRIRA significantly expanded 8 U.S.C. § 1183a by
spelling out what the affidavit of support requires.
The affidavit provision is meant to establish that the appli-
cant “is not excludable as a public charge.” 8 U.S.C.
§ 1183a(a)(1). To that end, it empowers the federal govern-
ment, as well as state and local governments, to demand re-
imbursement from the sponsor for any means-tested public
benefit received by the sponsored noncitizen. 9
Id. § 1183a(b)(1)(A). A “means-tested public benefit” is one
8 IIRIRA originally provided that a family-based applicant was “ex-
cludable” without the affidavit. IIRIRA § 531(a). A subsequent amend-
ment to the INA changed the terminology from “excludable” to “inadmis-
sible.”
9 It also requires the sponsor “to maintain the sponsored alien at an
annual income that is not less than 125 percent of the Federal poverty
line.” 8 U.S.C. § 1183a(a)(1)(A).
No 19-3169 61
available to those whose income falls below a certain level.
The provision explicitly excludes certain benefits, regardless
of whether they are means tested, from the sponsor’s reim-
bursement obligation; by implication, receipt of every other
means-tested benefit is included. See id. § 1183a note. 10 If the
sponsor doesn’t pay upon request, the government can sue
the sponsor. Id. § 1183a(b)(2). If the sponsor doesn’t keep “the
Attorney General and the State in which the sponsored alien
is currently a resident” apprised of any change in the spon-
sor’s address, she is subject to a civil penalty—and that pen-
alty is higher if she fails to update her address “with
knowledge that the sponsored alien has received any means-
tested public benefits” other than those described in three
cross-referenced provisions of the Welfare Reform Act. Id.
§ 1183a(d). 11 The affidavit is generally enforceable for ten
years or until the sponsored noncitizen is naturalized. Id.
§ 1183a(a)(2).12
10 I discuss these exemptions, which are narrow, in my analysis at
Chevron step two.
11 This list of exempted benefits in the change-of-address penalty sec-
tion largely track those in the “benefits subject to reimbursement” section.
12 IIRIRA contained another provision relevant to the “public charge”
ground of inadmissibility: section 564 of the Act directed the Attorney
General to establish a pilot program “to require aliens to post a bond in
addition to the affidavit requirements under [8 U.S.C. § 1183a].” IIRIRA
§ 564(a)(1). The bond covered the cost of benefits described in the affidavit
provision—that is, any means-tested benefit other than those described in
three cross-referenced provisions of the Welfare Reform Act. Id. Congress
instructed the Attorney General to set the bond at “an amount that is not
less than the cost of providing [the relevant benefits] for the alien and the
alien’s dependents for 6 months.” Id. § 564(b)(2). If an admitted noncitizen
used a covered benefit, the government could bring suit either on the bond
62 No. 19-3169
Notwithstanding IIRIRA’s obvious—and obviously sig-
nificant—amendments to the public charge provision, the
plaintiffs insist, and the majority agrees, that its amendments
reveal nothing about the scope of the term “public charge.”
Yet as I will explain below, the 1996 amendments were not
only material, but they also increased the bite of the public
charge exclusion.
The plaintiffs characterize the affidavit provision as hav-
ing nothing to do with admissibility; as they see it, the provi-
sion merely reinforces restrictions on government benefits for
lawful permanent residents. They offer two basic arguments
in support of that position: first, that the supporting-affidavit
requirement appears in a different provision than does the
public charge exclusion (8 U.S.C. § 1183a, as opposed to
§ 1182(a)(4)), and second, that the supporting-affidavit re-
quirement doesn’t apply to everyone who is subject to the
public charge exclusion.
The first argument is totally unpersuasive. The public
charge provision explicitly cross-references the affidavit pro-
vision, thereby tying the two together, and it makes obtaining
an affidavit of support a condition of admissibility. Id.
§ 1182(a)(4)(C)(ii). What’s more, the affidavit provision ex-
pressly states that the point of the affidavit is “to establish that
an alien is not excludable as a public charge under section
1182(a)(4).” Id. § 1183a(a)(1). Because a family-sponsored ap-
plicant is inadmissible as a public charge without the affida-
vit, the coverage of the affidavit is very strong evidence of the
or against the sponsor pursuant to 8 U.S.C. § 1183a. IIRIRA § 564(a)(2).
Congress allowed this pilot program to sunset after three years. Id.
§ 564(e).
No 19-3169 63
nature of the burden with which the public charge exclusion
is concerned. 13
The plaintiffs’ second argument fails too. As an initial mat-
ter, the affidavit provision—which, it bears repeating, is tied
by cross-reference to the public charge exclusion—uses the
term “public charge,” and we “do[] not lightly assume that
Congress silently attaches different meanings to the same
term in the same or related statutes.” Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1812 (2019); see also Desert Palace, Inc. v.
Costa, 539 U.S. 90, 101 (2003) (explaining that as a general rule,
“identical words used in different parts of the same act are
intended to have the same meaning” (citation omitted)). The
plaintiffs don’t specify what different meaning the term “pub-
lic charge” might have in the affidavit provision; they just
vaguely assert that the provision is getting at something else.
They presumably don’t want to embrace the logical implica-
tion of their position: that the term “public charge” means
something more stringent for family-based immigrants, who
need to produce an affidavit, than it does for the others, who
don’t.
In any event, this argument assumes that if the affidavit
were tied to the standard of admissibility, Congress would
have required one from everyone subject to the exclusion. Its
choice to require an affidavit only from family-based immi-
grants, the logic goes, means that the affidavit provision can’t
13 The same is true of IIRIRA’s pilot bond program. The required bond
protected the government against the risk that the noncitizen would be-
come a public charge, so the scope of its coverage is a window into the
meaning of the term at the time of the 1996 amendments.
64 No. 19-3169
shed any light on the admissibility provision, which is more
generally applicable.
This argument is misguided. There is an obvious explana-
tion for why Congress required supporting affidavits from
family-based immigrants and not from employment-based
immigrants or green card lottery winners: that is the only con-
text in which it makes sense to demand this assurance. A con-
nection to a citizen or lawful permanent resident is the basis
for a family-based green card. 8 U.S.C. §§ 1151(b)(2), 1153(a).
The same is not true for immigrants who obtain diversity or
employment-based green cards, neither of which is based on
a personal relationship—much less a relationship close
enough that someone would be willing to take on ten years’
worth of potentially significant liability. Moreover, in the con-
text of an employment-based green card, a supporting affida-
vit would add little. The affidavit is a means of providing the
Executive with assurance that the green card applicant will
not become a public charge if admitted. The stringent criteria
for an employment-based green card provide similar assur-
ance. Employment-based green cards are reserved largely for
those with “extraordinary ability in the sciences, arts, educa-
tion, business, or athletics which has been demonstrated by
sustained national or international acclaim”; “outstanding
professors and researchers” who are “recognized internation-
ally”; “multinational executives and managers”; those who
hold advanced degrees and have job offers; and entrepre-
neurs prepared to invest a minimum of $1,000,000 in a ven-
ture that will benefit the United States economy and employ
“not fewer than 10 United States citizens or [lawful perma-
nent residents].” Id. § 1153(b)(1)–(5). Someone who meets
these criteria is unlikely to have trouble supporting herself in
the future. That said, if an employment-based applicant will
No 19-3169 65
be working for a relative, and therefore has a family connec-
tion, the statute still requires her to obtain a supporting affi-
davit—demonstrating that the affidavit is not uniquely appli-
cable to those applying for family-based green cards. See id.
§ 1182(a)(4)(D).
Despite the plaintiffs’ effort to show otherwise, it doesn’t
make sense to treat the affidavit provision as an anomalous
carve-out rather than compelling evidence of the scope of the
public charge inquiry. In fact, trying to categorize the sup-
porting affidavit as limited by virtue of its application to fam-
ily-based immigrants is a sleight of hand, because, as the
plaintiffs surely know, the family-based category is not
simply one among several to which the public charge exclu-
sion applies. As a practical matter, it is the category for which
the exclusion matters most. The number of lottery winners is
considerably smaller than the number of family-based immi-
grants, and employment-based immigrants—also a smaller
category than the family based—have other means of demon-
strating self-sufficiency.
In short, the 1996 amendments to the public charge provi-
sion—most notably, the addition of factors to guide the public
charge determination and the insertion of the affidavit re-
quirement—were material. What’s more, the affidavit provi-
sion reflects Congress’s view that the term “public charge”
encompasses supplemental as well as primary dependence on
public assistance. To establish that a family-based applicant is
not excludable as a public charge, a sponsor must promise to
pay for the noncitizen’s use of any means-tested benefit out-
side the itemized exclusions. Without such an affidavit, the
noncitizen is inadmissible. Congress’s attempt to aggressively
66 No. 19-3169
protect the public fisc through the supporting-affidavit re-
quirement is at odds with the view that it used the term “pub-
lic charge” to refer exclusively to primary and permanent de-
pendence.
C.
Switching gears, the plaintiffs—with the support of the
House of Representatives, appearing as amicus curiae—ad-
vance a creative structural argument for why the term “public
charge” must be interpreted narrowly: they say that interpret-
ing the term to include the receipt of supplemental benefits is
inconsistent with Congress’s choice in the Welfare Reform
Act to make such benefits available to lawful permanent resi-
dents. According to the plaintiffs, Congress would not have
authorized lawful permanent residents to receive supple-
mental benefits if it did not expect them to use those benefits.
And it is inconsistent with Congress’s generosity to deny
someone a green card because she is likely to take advantage
of benefits for which Congress has made her eligible. The stat-
utory scheme therefore forecloses the possibility of interpret-
ing “public charge” to mean anything other than primary and
permanent dependence.
There are several problems with this argument. To begin
with, its logic would read the public charge provision out of
the statute. The premise of the public charge inquiry has al-
ways been that immigrants in need of assistance would have
access to it after their arrival—initially through state poor
laws and later through modern state and federal welfare sys-
tems. Indeed, it is difficult to imagine how someone could be-
come a public charge under any conception of the term if it
were impossible to receive public aid. For example, on the
plaintiffs’ logic, DHS could not exclude an applicant even if it
No 19-3169 67
predicted that the applicant would eventually become perma-
nently reliant on government benefits, because the future use
of those benefits would, after all, be authorized. Barring the
Executive from considering a green card applicant’s potential
use of authorized benefits would render the statutory public
charge exclusion a dead letter.
Moreover, the plaintiffs’ position assumes that tension ex-
ists between the public charge exclusion and the availability
of benefits to lawful permanent residents—and that this ten-
sion can be resolved only by limiting the scope of the exclu-
sion. In fact, the public charge exclusion and the availability
of benefits are easily reconcilable. Immigration law has long
distinguished between one who becomes a public charge be-
cause of a condition preexisting her arrival and one who be-
comes a public charge because of something that has hap-
pened since. See, e.g., id. § 1227(a)(5) (“Any alien who, within
five years after the date of entry, has become a public charge
from causes not affirmatively shown to have arisen since en-
try is deportable.”); Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat.
1084, 1086 (”[A]ny alien who becomes a public charge within
one year after his arrival in the United States from causes ex-
isting prior to his landing therein shall be deemed to have
come in violation of law and shall be returned as aforesaid.”).
Providing benefits to immigrants who have been here for a
designated period of time—generally five years under current
law—takes care of immigrants in the latter situation. Life con-
tains the unexpected: for instance, a pandemic may strike,
leaving illness, death, and job loss in its wake. A lawful per-
manent resident who falls on hard times can rely on public
assistance to get back on her feet. Congress’s willingness to
authorize funds to help immigrants who encounter unex-
68 No. 19-3169
pected trouble is perfectly consistent with its reluctance to ad-
mit immigrants whose need for help is predictable upon arri-
val.
In any event, the plaintiffs’ argument is inconsistent not
only with the statutory exclusion, but also with the Welfare
Reform Act. As the plaintiffs tell it, Congress has generously
supported noncitizens, thereby implicitly instructing the Ex-
ecutive to ignore a green card applicant’s potential usage of
supplemental benefits in the admissibility determination. But
that is a totally implausible description of the Welfare Reform
Act. The stated purpose of the Act is to ensure that noncitizens
“within the Nation’s borders not depend on public resources
to meet their needs, but rather rely on their own capabilities
and the resources of their families, their sponsors, and private
organizations,” and that “the availability of public benefits
not constitute an incentive for immigration to the United
States.” 8 U.S.C. § 1601(2). To this end, the Act renders lawful
permanent residents ineligible for most benefits until they
have lived in the United States for at least five years. Id.
§ 1613(a). The Act’s dramatic rollback of benefits for nonciti-
zens sparked vociferous criticism. See Isabel Sawhill et al.,
Problems and Issues for Reauthorization, in WELFARE REFORM
AND BEYOND: THE FUTURE OF THE SAFETY NET 20, 27 (Isabel
Sawhill et al. eds., 2002) (referring to the five-year aid eligibil-
ity restriction as one of the Act’s “most contentious features”).
It blinks reality to describe the Welfare Reform Act as a
“grant” of benefits, as the plaintiffs do, or to say that the Act
No 19-3169 69
took an immigrant’s potential use of supplemental benefits
off the table for purposes of the admissibility determination. 14
***
Given the length and complexity of my analysis of the
plaintiffs’ arguments at Chevron step one, a summary may be
helpful. In my view, the plaintiffs can’t show that the term
“public charge” refers narrowly to someone who is primarily
and permanently dependent on government assistance. The
term “public charge” was broad when it entered federal im-
migration law in 1882, and it has not been pinned down since.
IIRIRA, Congress’s latest word on the public charge provi-
sion, cuts in the opposite direction of the plaintiffs’ argument,
as does the Welfare Reform Act, which, contrary to the plain-
tiffs’ argument, hardly reflects a congressional desire that im-
migrants take advantage of available public assistance. In fact,
the amendments that IIRIRA and the Welfare Reform Act to-
gether made to the INA reflect more than Congress’s view
that the term “public charge” is capacious enough to include
supplemental dependence on public assistance. They reflect
14 As the plaintiffs point out, Congress softened some of these re-
strictions in subsequent legislation. Perhaps most notably, in 2002 Con-
gress passed the Farm Security and Rural Investment Act, which made
adults eligible for SNAP after 5 years of residency (it had previously been
10) and children eligible for SNAP immediately after becoming lawful
permanent residents. Pub. L. No. 107-171, § 4401, 116 Stat. 134, 333 (2002)
(codified as amended at 8 U.S.C. § 1612(a)(2)). Yet these minor adjust-
ments, even if slightly more generous than the original restrictions, did
not overhaul immigration policy—nor, as I have already explained, is it
unreasonable in any event for the Executive to consider whether a green
card applicant is likely to use benefits if she is permitted to stay. That’s the
point of the public charge determination.
70 No. 19-3169
its preference that the Executive consider even supplemental
dependence in enforcing the public charge exclusion.
III.
While the term “public charge” is indeterminate enough
to leave room for interpretation, DHS can prevail only if its
definition is reasonable. The majority holds that DHS is likely
to lose on the merits of that argument; I disagree. My dissent
from the majority on this score is inevitable, given how differ-
ently we analyze the statute at Chevron step one. The majority
seems to understand “public charge” to mean something only
slightly broader than “primarily and permanently depend-
ent,” but I understand it to be a much more capacious term—
not only as a matter of history, but also by virtue of the 1996
amendments to the public charge provision. On my reading,
in contrast to the majority’s, the statute gives DHS relatively
wide discretion to specify the degree of benefit usage that ren-
ders someone a “public charge.” Thus, the majority and I ap-
proach Chevron step two from different starting points.
The plaintiffs challenge the reasonableness of the rule’s
definition in two respects. First, they object to the particular
benefits that DHS has chosen to designate in its definition of
“public charge.” According to the plaintiffs, DHS has unrea-
sonably interpreted the statute insofar as the rule counts in-
kind aid. Second, they argue that DHS has set the relevant
benefit usage so low that the definition captures people who
cannot reasonably be characterized as “public charges.” I will
address these arguments in turn.
A.
The plaintiffs don’t contest DHS’s authority to account for
the receipt of state and federal cash assistance (like SSI and
No 19-3169 71
TANF) in the definition of “public charge.” But they insist
that in-kind benefits (like SNAP, public housing, and Medi-
caid) are off-limits. Their argument in support of that position
is difficult to grasp. In their brief, the plaintiffs vaguely assert
that in-kind benefits shouldn’t be counted because they are
categorically different from cash payments; they imply that
the term “public charge” does not encompass someone who
relies on in-kind public assistance. At oral argument, the
plaintiffs wisely abandoned that position. For one thing, they
could not articulate why it mattered whether the government
chose to give someone $500 for groceries or $500 worth of
food. For another, that argument is inconsistent with history:
everyone agrees that someone living permanently in a late
nineteenth-century poorhouse qualified as a public charge,
and shelter in a poorhouse is in-kind relief.
At least rhetorically, a great deal of the plaintiffs’ argu-
ment involves their repeated emphasis on the fact that the
1999 Guidance directed officers “not [to] place any weight on
the receipt of non-cash public benefits (other than institution-
alization) or the receipt of cash benefits for purposes other
than for income maintenance.” 1999 Guidance, 64 Fed. Reg. at
28,689. The implication is that the 1999 Guidance reflects the
only reasonable interpretation of the statute.
Of course, the fact that a prior administration interpreted
a statute differently does not establish that the new interpre-
tation is unreasonable—the premise of Chevron step two is
that more than one reasonable interpretation of the statute ex-
ists. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 863–64 (1984) (“An initial agency interpretation is
not instantly carved in stone. On the contrary, the agency, to
72 No. 19-3169
engage in informed rulemaking, must consider varying inter-
pretations and the wisdom of its policy on a continuing ba-
sis.”). Moreover, the focus on cash benefits in the 1999 Guid-
ance flowed from the Immigration and Naturalization Ser-
vice’s decision to interpret “public charge” to mean “primar-
ily dependent on the government for subsistence.” 1999 Guid-
ance, 64 Fed. Reg. at 28,692. As the Guidance explained, INS
had decided “that the best evidence of whether an alien is pri-
marily dependent on the government for subsistence is either
(i) the receipt of public cash assistance for income mainte-
nance, or (ii) institutionalization for long-term care at govern-
ment expense.” Id. DHS has now taken a different approach—
it has decided that projected reliance on government benefits
need not be primary to trigger the public charge exclusion.
And once DHS made that baseline choice, a broader range of
benefits became relevant. Thus, the plaintiffs’ fundamental
objection to the counting of benefits like Medicaid, housing,
and SNAP—that they are supplemental—is really just a re-
packaging of their argument under Chevron step one.
The plaintiffs also advance a legislative-inaction argu-
ment: in 2013—twenty years after Congress enacted IIRIRA—
the Senate Judiciary Committee, while debating the Border
Security, Economic Opportunity, and Immigration Moderni-
zation Act, voted down a proposal to require applicants for
lawful permanent resident status “to show they were not
likely to qualify even for non-cash employment supports such
as Medicaid, the SNAP program, or the Children’s Health In-
surance Program (CHIP).” S. REP. NO. 113-40, at 42 (2013). But
the failure of this proposal is neither here nor there. As the
Supreme Court has cautioned, “Congressional inaction lacks
‘persuasive significance’ because ‘several equally tenable in-
No 19-3169 73
ferences’ may be drawn from such inaction, ‘including the in-
ference that the existing legislation already incorporated the
offered change.’” Pension Benefit Guar. Corp. v. LTV Corp., 496
U.S. 633, 650 (1990) (citation omitted). This rejected pro-
posal—which would have overridden the 1999 Guidance—is
a case in point: the rejection is as consistent with the choice to
leave the matter within the Executive’s discretion as it is with
the choice to force the Executive’s hand. The plaintiffs’ argu-
ment has other problems too. Why should the views of the
2013 Senate Judiciary Committee be attributed to Congress as
a whole? See Thompson v. Thompson, 484 U.S. 174, 191–92
(1988) (Scalia, J., concurring in the judgment) (“Committee re-
ports, floor speeches, and even colloquies between Congress-
men, are frail substitutes for bicameral vote upon the text of a
law and its presentment to the President.” (citation omitted)).
And how could the unenacted views of the 2013 Congress set-
tle the meaning of language chosen by a different Congress at
a different time? See United States v. Price, 361 U.S. 304, 313
(1960) (“[T]he views of a subsequent Congress form a hazard-
ous basis for inferring the intent of an earlier one.”).
Thus, the plaintiffs are wrong to insist that DHS is barred
from considering the receipt of a particular benefit simply be-
cause the benefit is in-kind rather than cash. There is no such
bar. Rather, the list of designated benefits is reasonable if re-
ceiving them is consistent with the lack of self-sufficiency con-
veyed by the term “public charge.”
Answering this question requires fleshing out what it
means to lack self-sufficiency for purposes of the public
charge exclusion. As the majority observes, no one is self-suf-
ficient in an “absolutist” sense because everyone relies on
74 No. 19-3169
some nonmonetary government services—for example, pub-
lic snow removal and emergency services. Maj. Op. at 13, 37.
Importantly, the term “public charge” does not implicate self-
sufficiency in this absolutist sense. Throughout its centuries-
long history, “public charge” has always been associated with
dependence on a particular category of government pro-
grams: those available based on financial need. In the nine-
teenth and early twentieth centuries, these were “poor relief”
programs; now, they are the need-based programs of the
modern welfare system. And what has always been implicit
in the term “public charge” was made explicit by the 1996
amendments. The statutory exclusion requires the Executive
to consider the noncitizen’s age; health; family status; assets,
resources, and financial status; and education and skills—fac-
tors plainly designed to determine whether a noncitizen will
be able to support herself, not whether she will use generally
available services like snow removal. In the same vein, the
sponsor’s reimbursement obligation covers only those bene-
fits that are “means tested”—that is, available to those whose
income falls below a certain threshold. As a matter of both
history and text, a “public charge” lacks self-sufficiency in the
sense that she lacks the financial resources to provide for her-
self.
The benefits designated in DHS’s definition are all con-
sistent with this concept of self-sufficiency. Recall that DHS
has designated the following benefits: cash assistance for in-
come maintenance (including SSI, TANF, and state cash assis-
tance), SNAP, the Section 8 Housing Choice Voucher Pro-
gram, Section 8 project-based rental assistance, housing ben-
efits under Section 9, and Medicaid (with some explicit excep-
tions). 8 C.F.R. § 212.21. These benefits are all means tested;
No 19-3169 75
they are also squarely within the Welfare Reform Act’s defi-
nition of “public benefit.” 8 U.S.C. §§ 1611(c), 1621(c) (defin-
ing “public benefit” to include welfare, food, health, and pub-
lic-housing benefits funded by the federal, state, or local gov-
ernments). It is consistent with the term “public charge” to
consider the potential receipt of cash, food, housing, and
healthcare benefits—all of which fulfill fundamental needs—
in evaluating whether someone is likely to depend on public
assistance to get by.
It is also worth noting some of the benefits that the rule
does not include: significantly, the rule’s definition accommo-
dates the reimbursement limitations in the affidavit provi-
sion. Under the affidavit provision, the following benefits,
even if means tested, are not subject to reimbursement: certain
forms of emergency medical assistance; short-term, in-kind
emergency disaster relief; school-lunch benefits; benefits un-
der the Child Nutrition Act of 1966; public-health assistance
for immunization, as well as treatment for the symptoms of
communicable disease; certain foster-care and adoption pay-
ments; certain in-kind services such as soup kitchens and cri-
sis counseling; student assistance for higher education; bene-
fits under the Head Start Act; means-tested programs under
the Elementary and Secondary Education Act of 1965; and
certain job-training benefits. Id. § 1183a note.15
These exemptions under the affidavit provision are ex-
cluded from the rule too. The rule’s definition provides “an
15 By virtue of a notice issued by the Department of Housing and Ur-
ban Development, housing benefits are excluded from the reimbursement
obligation. See 8 C.F.R. § 213a.1; Eligibility Restrictions on Noncitizens, 65
Fed. Reg. 49,994 (Aug. 16, 2000). But that exemption is not statutory, and
here, I’m concerned only with DHS’s interpretation of the statute.
76 No. 19-3169
exhaustive list of public benefits,” Inadmissibility on Public
Charge Grounds, 84 Fed. Reg. at 41,296, so any benefit not
mentioned in the list is by implication excluded from the def-
inition. And the list does not mention any of the benefits ex-
empted in the affidavit provision of the statute. 8 C.F.R.
§ 212.21; see also Inadmissibility on Public Charge Grounds, 84
Fed. Reg. at 41,312 (noting that the rule’s “definition does not
include benefits related exclusively to emergency response,
immunization, education, or social services”); id. at 41,482 (ex-
plaining that the rule’s definition “does not include emer-
gency aid, emergency medical assistance, or disaster relief”);
id. at 41,389 (excluding benefits under the National School
Lunch Act, the Child Nutrition Act, and the Head Start Act).
Indeed, to highlight just how carefully the rule tracks the stat-
utory exemptions to the affidavit of support, consider the
rule’s exclusion of Medicaid for those under the age of 21 and
pregnant women. Id. at 41,367. These benefits do not appear
in the list of exemptions to the affidavit of support, but they
are exempted from the sponsor’s reimbursement obligations
under a different statutory provision. 42 U.S.C.
§ 1396b(v)(4)(B). The rule captures that exclusion even though
it appears elsewhere; in other words, DHS did not simply
copy and paste the statutory note.
In sum, the designated benefits are not only consistent
with the term “public charge,” but they also fit neatly within
the statutory structure. Considering the potential receipt of
these benefits to gauge the likelihood that a noncitizen will
become a public charge is therefore not an unreasonable in-
terpretation of the statute.
No 19-3169 77
B.
The closer question is whether DHS’s benefit-usage
threshold stretches the meaning of “public charge” beyond
the breaking point. The rule defines “public charge” to mean
a noncitizen who receives one or more of the designated ben-
efits “for more than twelve months in the aggregate within
any 36-month period.” One month of one benefit counts to-
ward the twelve. As a result, an applicant expected to live in
Section 8 housing for a year would be denied admission as
someone who is likely to become a public charge, as would an
applicant who is expected to receive three months’ worth of
housing, TANF, Medicaid, and SNAP.
The plaintiffs have a legislative-inaction argument for this
feature of the rule too. They point out that during the enact-
ment of IIRIRA, the Senate Judiciary Committee, while nego-
tiating the House-passed version of the bill, dropped lan-
guage that “would have clarified the definition of ‘public
charge’” in the deportation provision to provide for deporta-
tion if a noncitizen “received Federal public benefits for an
aggregate of 12 months over a period of 7 years.” 142 Cong.
Rec. S11,872, S11,882 (daily ed. Sept. 30, 1996) (statement of
Sen. Kyl). Thus, they say, Congress has foreclosed the possi-
bility that 12 months’ worth of benefit usage renders someone
a public charge. Whatever the statutory floor is, it must be
higher than that.
I’ve already identified some of the problems with legisla-
tive-inaction arguments, so I won’t belabor them here. It’s
worth noting, though, that this legislative-inaction argument
is even worse than the plaintiffs’ other. So far as the plaintiffs’
citation reveals, the proposal dropped out of the statute in the
course of committee negotiations, not by a vote, and there is
78 No. 19-3169
no explanation for why it did. See Thompson, 484 U.S. at 191
(Scalia, J., concurring in the judgment) (“An enactment by im-
plication cannot realistically be regarded as the product of the
difficult lawmaking process our Constitution has pre-
scribed.”). Moreover, the dropped proposal involved the pub-
lic charge deportation provision, not the public charge admissi-
bility provision. See 8 U.S.C. § 1227(a)(5). Drawing general
conclusions from a committee’s decision to drop this lan-
guage in a context with much higher stakes is a particularly
dubious proposition. Despite the plaintiffs’ effort to demon-
strate otherwise, the statute doesn’t draw a bright line requir-
ing something more than 12 months of benefit usage to meet
the definition of “public charge.”
At oral argument, DHS declined to identify any limit to its
discretion, implying that it could define public charge to in-
clude someone who took any amount of benefits, no matter
how small. It may have been grounding its theory in the affi-
davit provision, which triggers the sponsor’s liability once the
noncitizen receives “any means-tested public benefit” that
falls within the sponsor’s reimbursement obligation. Id.
§ 1183a(b)(1)(A) (emphasis added).
That may well overread the affidavit provision, which
does not purport to define “public charge.” Enforcement of
the public charge exclusion has waxed and waned over time
in response to economic conditions, immigration policy, and
changes in the programs available to support the poor. The
amendments made by IIRIRA and the Welfare Reform Act,
including the affidavit provision, reflect Congress’s interest in
vigorous enforcement. Yet Congress left the centuries-old
term in the statute, and that term has always been associated
No 19-3169 79
with a lack of self-sufficiency. So that’s the principle that gov-
erns here: if it’s reasonable to describe someone who takes one
or more of the designated benefits “for more than twelve
months in the aggregate within any 36-month period” as lack-
ing in self-sufficiency, then DHS’s definition falls within the
permissible range.
In deciding this question, it is wrong to focus exclusively
on the durational requirement—duration must be viewed in
the context of the benefits measured. Three features are par-
ticularly important in this regard: the designated benefits are
means tested, satisfy basic necessities, and are major welfare
grants. To see the importance of these features, consider how
different the durational threshold would look without
them—for example, if the rule measured the usage of benefits
that are not means tested (e.g., public education), that are
means tested but don’t satisfy a basic necessity (e.g., Pell
grants), or that satisfy a basic necessity but are not major wel-
fare grants (e.g., need-based emergency food assistance). Re-
lying on the government to provide a year’s worth of a basic
necessity (food, shelter, medicine, or cash assistance for in-
come maintenance) implicates self-sufficiency in a way that
funding a year of college with the help of a Pell grant does
not.
The plaintiffs particularly object to the rule’s stacking
mechanism, which can reduce the durational requirement
from 12 months to as little as 3 months. But here, too, the con-
text matters: all of the designated benefits supply basic neces-
sities, and the reduction is triggered in proportion to the de-
gree of reliance on the government. The more supplemental
the reliance, the longer it can go on before crossing the “public
charge” threshold. The briefest durational threshold—three
80 No. 19-3169
months of benefit usage—meets the definition only when the
recipient relies on the government for all basic necessities
(food, shelter, medicine, and cash assistance for income
maintenance). In other words, such short-term reliance only
counts if it’s virtually total. The rule measures self-sufficiency
along a sliding scale rather than by time alone.
It is not unreasonable to describe someone who relies on
the government to satisfy a basic necessity for a year, or mul-
tiple basic necessities for a period of months, as falling within
the definition of a term that denotes a lack of self-sufficiency.
To be sure, the rule reaches dependence that is supplemental
and temporary rather than primary and permanent. But the
definition of “public charge” is elastic enough to permit that.
The rule’s definition is exacting, and DHS could have exer-
cised its discretion differently. The line that DHS chose to
draw, however, does not exceed what the statutory term will
bear.
IV.
This case involves more than the definition of “public
charge.” The plaintiffs raised a host of objections to the rule in
their complaint, and the majority addresses some of them. It
concludes that the plaintiffs are likely to succeed in their chal-
lenge to the factors that DHS uses to implement its definition
(the list of factors includes health, family size, and English
proficiency), as well as in their argument that the rule is arbi-
trary and capricious. See 5 U.S.C. § 706(2)(A); Motor Vehicle
Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (explaining that the agency must “articulate
a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made’” (ci-
tation omitted)).
No 19-3169 81
I wouldn’t reach these issues. The district court didn’t ad-
dress them, and on appeal, the parties devoted their briefs al-
most entirely to the definition of “public charge.” Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course,
that a federal appellate court does not consider an issue not
passed upon below.”); see also Ctr. for Individual Freedom v. Van
Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (remanding to the
district court for arbitrary-and-capricious review when the
district court resolved a case at Chevron step one without
reaching the issue and when the agency’s position was not
well developed). And while it’s generally prudent to refrain
from deciding difficult issues without the benefit of argu-
ments from the parties, the procedural posture of this case of-
fers a particularly good reason to stop where the parties did.
We are reviewing the issuance of the “extraordinary remedy”
of a preliminary injunction. Whitaker ex rel. Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th
Cir. 2017). Based on the record developed thus far, the plain-
tiffs have not shown that they are entitled to this extraordi-
nary remedy. I would remand so that the district court can
assess whether the plaintiffs’ remaining challenges to the rule
are likely to succeed.
***
The many critics of the “public charge” definition charac-
terize it as too harsh. But the same can be said—and has been
said—of IIRIRA and the Welfare Reform Act. The latter dra-
matically rolled back the availability of aid to noncitizens, and
both statutes linked those cuts to the public charge provision
by making the affidavit of support a condition of admissibil-
ity. The definition in the 1999 Guidance tried to blunt the force
of these changes; now, DHS has chosen to exercise the leeway
82 No. 19-3169
that Congress gave it. At bottom, the plaintiffs’ objections re-
flect disagreement with this policy choice and even the statu-
tory exclusion itself. Litigation is not the vehicle for resolving
policy disputes. Because I think that DHS’s definition is a rea-
sonable interpretation of the statutory term “public charge,” I
respectfully dissent.
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[Cite as State v. Fench, 2015-Ohio-4058.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1232
Appellee Trial Court No. CR0201401951
v.
Maurice Fench DECISION AND JUDGMENT
Appellant Decided: September 30, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant Maurice Fench appeals the October 3, 2014 judgment of the
Lucas County Court of Common Pleas which, following a jury trial convicting him of
retaliation, sentenced appellant to 18 months of imprisonment. A nunc pro tunc
judgment entry was filed on March 11, 2015, reflecting that the sentence was to be served
consecutive to appellant’s sentence in a prior action.
{¶ 2} Appellant raises one assignment of error for our review:
The trial court erred to the prejudice of appellant by not making the
required judicial findings before imposing consecutive sentences.
{¶ 3} In his sole assignment of error, appellant contends that the court failed to
make the findings under R.C. 2929.14(C)(4) prior to imposing a consecutive prison
sentence. The state concedes the error.
{¶ 4} R.C. 2929.14(C)(4) provides:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
2.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender. (Emphasis added.)
{¶ 5} At the October 1, 2014 sentencing hearing, the court found that “based on
the fact that you were in custody at the time and due to your criminal history at the time
of the conviction, a consecutive sentence is warranted on this matter.” In its March 11,
2015 nunc pro tunc judgment entry, the court stated: “The sentence is ordered to be
served consecutively to the sentence in CR09-1756.”
{¶ 6} Citing a case from this court, the parties agree that the court’s imposition of
consecutive sentences was contrary to law, R.C. 2953.08(G), where the court failed to
find that a consecutive sentence was necessary to protect the public or to punish the
offender. State v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10-11.
Accordingly, appellant’s assignment of error is well-taken.
{¶ 7} On consideration whereof, we find that appellant was prejudiced and
prevented from having a fair proceeding, and the judgment of the Lucas County Court of
Common Pleas is reversed and the sentence is vacated. The matter is remanded to the
3.
trial court for resentencing and for the court to make a determination if any of the
findings under R.C. 2929.14(C)(4) apply. Pursuant to App.R. 24, the state is ordered to
pay the costs of this appeal.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
4.
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11 Cal.App.2d 430 (1936)
SANTO BETTOLO, Respondent,
v.
SAFEWAY STORES, INC. (a Corporation), et al., Appellants.
Civ. No. 9921.
California Court of Appeals. First Appellate District, Division Two.
January 27, 1936.
Milton L. Selby and Drummond Wilde for Appellants.
J. W. Coleberd and H. W. Call for Respondent.
Nourse, P. J.
Plaintiff sued for damages for false imprisonment and had a verdict for $1500 against all the defendants. Since there was no evidence even remotely connecting the defendant Morelli with the incident, the trial court granted him a new trial. The other defendants have appealed from the judgment on the verdict.
Plaintiff entered a store operated by the corporation in South San Francisco, gathered some groceries from the shelves, which he put in a carrying bag, and some candy, which he placed in his overcoat pocket. He then went to the checking stand where he exhibited the groceries and paid for them. Two employees had seen him take the candy, and when defendant Johnson learned that it had not been paid for, he followed the plaintiff to the sidewalk and forced him to return to the store. There he was searched, but no candy was found; but it was discovered later among some vegetables at a counter where plaintiff had stood just before leaving the store. Plaintiff was detained about ten or twelve minutes and then permitted to leave. No physical violence or injury is charged; the claim for damages rests solely upon the detention in the store. These facts all stand uncontradicted. Plaintiff did not deny that he had taken the candy, nor that he had been warned to stay away from the store because he had been seen taking groceries on another occasion.
The appellants have advanced five separate grounds for reversal, but, for the sake of brevity, we will limit our consideration to these two--the denial to them of the right to defend on the ground of probable cause, and the excessive damages.
[1] The trial court instructed the jury that it should disregard any evidence tending to prove probable cause, and that such defense was not applicable in actions for false imprisonment where exemplary damages were not asked. The instruction was error and palpably prejudicial. Any person may make an arrest for a misdemeanor committed in his presence. (Sec. 837, Pen. Code.) The owner of property may, for the purpose of protecting it, restrain, for a reasonable time and for the purpose of investigation, one whom he *432 has reasonable and probable cause for believing has interfered with or stolen it. (Collyer v. S. H. Kress & Co., 5 Cal.2d 175 [54 PaCal.2d 20]; Mackie v. Ambassador Hotel etc. Corp., 123 Cal.App. 215, 221 [11 PaCal.2d 3]; Gisske v. Sanders, 9 Cal.App. 13, 15 [98 P. 43]; Allen v. McCoy, 135 Cal.App. 500, 506 [27 PaCal.2d 423, 28 PaCal.2d 56]; Michel v. Smith, 188 Cal. 199, 205 [205 P. 113]; Van Fleet v. West American Ins. Co., 5 Cal.App.2d 125 [42 PaCal.2d 378, 43 PaCal.2d 557]; Jacques v. Childs Dining Hall Co., 244 Mass. 438 [138 N.E. 843, 26 A.L.R. 1329].)
In the Collyer case, which was also one in which exemplary damages were not asked, the Supreme Court, referring to the issue of probable cause as a defense, said, "Ordinarily, the owner of property, in the exercise of his inherent right to protect the same, is justified in restraining another who seeks to interfere with or injure it. (11 R. C. L. 805.)" And again, "However, those authorities which hold, where a person has reasonable grounds to believe that another is stealing his property, as distinguished from those where the offense has been completed, that he is justified in detaining the suspect for a reasonable length of time for the purpose of investigation in a reasonable manner (Jacques v. Childs Dining Hall Co., 244 Mass. 438 [138 N.E. 843, 26 A.L.R. 1329]; Fenn. v. Kroger Grocery & Baking Co., (Mo.) 209 S.W. 885; Sweeney v. F. W. Woolworth Co., 247 Mass. 277 [142 N.E. 50, 31 A.L.R. 311, 314]; 25 Cor. Jur. 471) must necessarily proceed upon the theory that probable cause is a defense. And this is the law because the right to protect one's property from injury has intervened."
[2] The undisputed evidence shows reasonable and probable cause for the detention. Johnson had seen the respondent pick up the candy and conceal it in his pocket. This was verified by another employee in the store. There has been no denial from the respondent. He was detained less than fifteen minutes, which was not shown to have been an unreasonable time for the investigation.
[3] The excessive verdict cannot be defended. Respondent proved no actual damage of any character. He was unemployed at the time, and had worked but ten days over a period of nine months. After the arrest, he had had reasonably steady employment. The only persons who knew of the detention, aside from the appellants, were respondents' *433 friends to whom he gave the information. None of them thought he had committed an offense, and none caused him any loss of employment or other injury. The verdict of $1500 was purely a sympathy verdict inspired by prejudice and unsupported by any competent evidence of damage. The respondent rested his demand for compensation on section 3333 of the Civil Code, which fixes the measure of damages in cases of this kind as "the amount which will compensate for all the detriment proximately caused thereby". He did not ask for exemplary or punitive damages, and could not have recovered such under the evidence. If he was entitled to any damages at all, he could have had nothing more than nominal damages within the provisions of section 3360 of the Civil Code. (Maher v. Wilson, 139 Cal. 514, 520 [73 P. 418].)
The judgment is reversed.
Sturtevant, J., and Spence, J., concurred.
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785 F.2d 543
Victor L. MARTIN, (Clara Lea Martin, Sandra Martin Fisherand Robert M. Martin, as the Personal Representative ofAppellant Victor L. Martin, for Substitution in the Place ofVictor L. Martin, Deceased), Plaintiff-Appellee, Cross-Appellant,v.AMERICAN PETROFINA, INC., et al., Defendants,andBenjamin Foster, Division of Amchem Products,Defendant-Appellant, Cross-Appellee.
No. 84-3563.
United States Court of Appeals,Fifth Circuit.
March 24, 1986.
James B. Doyle, Woodley, Barnett, Cox, Williams, Fenet & Palmer, Edmund E. Woodley, Lake Charles, La., for defendant-appellant, cross-appellee.
George R. Covert, Baton Rouge, La., for plaintiff-appellee, cross-appellant.
Appeals from the United States District Court for the Middle District of Louisiana.
ON PETITION FOR REHEARING
(Opinion December 30, 1985, 5th Cir.1985, 779 F.2d 250).
Before CLARK, Chief Judge, and BROWN and GEE, Circuit Judges.
GEE, Circuit Judge:
1
In Part V of our original opinion in this Louisiana diversity case, we held that when a tort plaintiff's claim arises from events that occurred prior to the effective date of the introduction of comparative negligence in Louisiana, a settling joint tortfeasor's portion or share is computed on a pro rata basis for purposes of Louisiana Civil Code Article 1803 (1985)1 and Harvey v. Travelers Insurance Company, 163 So.2d 915, 920-922 (La.App. 3d Cir.1964). On petition for rehearing, we have reviewed our original opinion and now conclude that we were in error.
2
Under Article 2103 of the pre-1985 Code, and Art. 1804 of the present Code, a tortfeasor's cause of action for contribution against its co-tortfeasor, where they are liable in solido, arises when judicial demand by the injured party is made upon one of the joint tortfeasors. Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976, 987-989 (5th Cir.1985). Victor Martin made his initial judicial demand in 1983, after Art. 2103 was amended in 1980 to reflect the introduction of comparative negligence in Louisiana. Thus, when Martin filed suit, the amended Art. 2103 read, in pertinent part:
3
When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, the debt shall be divided between them. If the obligation arises from a contract or quasi-contract, each debtor is liable for his virile portion. If the obligation arises from an offense or quasi-offense, it shall be divided in proportion to each debtor's fault.
4
Article 2103 is the source of a joint tortfeasor's right to claim contribution against co-tortfeasors. Ducre, Id. Hence, when Martin filed suit against Benjamin Foster in 1983, the latter had a right to claim contribution--proportionate to their fault--from its co-tortfeasors.
5
When Martin compromised with Benjamin Foster's fourteen solidarily liable co-tortfeasors, it was deprived of its right to claim contribution from those fourteen. Thus, under then-existing Art. 2203 and Harvey v. Travelers Insurance Co., supra, Benjamin Foster was entitled to a reduction in any damage award against it in the amount of shares of the fourteen relesed tortfeasors. These shares must be computed on a proportionate fault, as opposed to virile pro rata, basis, because Benjamin Foster's right to claim contribution was on a proportionate fault basis. Accordingly, we MODIFY Part V of our original opinion, VACATE our reversal of the district court's judgment, and AFFIRM the district court's reduction of the award against Benjamin Foster by 98%, the share of proportionate fault of the settling co-tortfeasors. The petition for rehearing is otherwise
6
DENIED.
1
Art. 1803 states, in pertinent part:
Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligor in the amount of the portion of that obligor.
Article 1803, as it presently exists, was enacted by the Louisiana Legislature in Act No. 331 of its 1984 Regular Session, in which the Obligations sections of the Civil Code were extensively revised. Prior to January 1, 1985, the effective date of Act 331, the substance of Art. 1803 was found in the second paragraph of Article 2203 of the 1870 Code. Art. 2203 stated:
The remission or conventional discharge in favor of one of the co-debtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he cannot claim the debt without making a deduction of the part of him to whom he has made the remission.
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957 P.2d 1290 (1998)
In re the Matter of the Personal Restraint Petition of Jerry ECKLUND, Petitioner.
No. 22288-4-II.
Court of Appeals of Washington, Division 2.
July 2, 1998.
Talis Merle Abolins, Attorney Generals Office, Olympia, for Respondent.
John Henry Browne, Browne & Ressler, Seattle, for Petitioner.
*1291 HUNT, Judge.
Jerry Ecklund filed a personal restraint petition (PRP) challenging the Indeterminate Sentence Review Board's (Board) refusal to release him after serving a standard minimum term of life imprisonment for a 1979 first degree murder conviction. A primary factor in the Board's denial of parole was Ecklund's persistent claim of innocence. We grant his petition and remand to the Board for reconsideration of parole based on factors other than Ecklund's denial of guilt.
FACTS
A. Conviction
Murder victim Betty Jensen met Ecklund at a bar on July 4, 1979. When her companions decided to walk to a nearby party, Jensen chose instead to ride with Ecklund; she was last seen getting into Ecklund's car. The next day, Jensen's dead body was found lying by a bridge. She had been shot four times and run over by a car. The tire marks matched the tire treads on Ecklund's car. The bullets were similar to those used in Ecklund's gun. Fibers from a green towel were found near the body, in Ecklund's car, and in Ecklund's house. Also found in Ecklund's car, was part of an earring that matched an earring worn by Jensen.
Ecklund has consistently maintained that he did not kill Jensen. Rather he claims that he blacked out or fell asleep; he does not remember what happened that night; and the real murderer "set him up." A jury convicted Ecklund of murder, for which he was sentenced in 1979 to a mandatory life term in prison.
B. Original Minimum Term
The offense, conviction, and sentencing occurred before enactment of the Sentencing Reform Act of 1981(SRA), RCW 9.94A. Following passage of the SRA, the Board met and determined that Ecklund's standard range sentence would be 236-316 months under SRA standards. At that time, the Board was aware that: Ecklund had no prior juvenile or adult criminal record; he had been a fire department employee for about 15 years; he admitted to drinking "quite a bit" the night of the murder; and he had taken extraordinary steps to prove his innocence, without success. The Board stated that "there are no circumstances regarding the crime that would justify going to the top of the range." (Emphasis added.) Consistent with prosecutor and probation offices' recommendations, the Board set a mid-range minimum term of 276 months.
During the early years of his imprisonment, Ecklund committed seven serious infractions, five for possession of alcohol or narcotics; the last infraction occurred in October 1985. He has committed no further infractions since then; rather he has complied with all requirements.
C. First Parole Hearing
The Board first considered Ecklund's eligibility for parole in March 1994. The Board noted: (1) that his "overall institutional adjustment is adequate and he is not seen as difficult or management problem in the institution"; (2) that state psychiatrist Dr. Helmut Reidel's report of June 1993 indicated "no evidence of severe pathology" and that Ecklund "would be considered adult anti-social with use of cannibis and alcohol." The Board denied parole because Ecklund had not yet served his minimum term, he continued to deny guilt and his substance abuse problem, and he had not yet dealt with his emotions. The Board stated:
It is clear in the interview with him today, that he has no understanding of the circumstances of the crime, his circumstances in prison and the anger that is obviously here in relationship to his incarceration. The physical evidence is quite literally overwhelming, and Mr. Ecklund simply sets that aside and offers no explanation for the physical evidence that is presented. What is probably most disturbing to the Board is, as noted above, that he is emotionless. If one makes the assumption that he is innocent and is wrongly convicted and has now spent 173 months in prison wrongly convicted, he ought to be very angry. It is clear that he has absolutely stuffed those emotions and has not dealt with anything and it is our perception that he is a time bomb waiting to go off....
*1292 ... He has no understanding of this crime, no understanding of his personal emotions, and clearly needs to be involved in counseling with regard to those issues. It seems clear he is disconnected from himself in many ways.... He also sets aside all of the emotions that would go along with being wrongly convicted.
D. Second Parole Hearing
In May 1995, the Board again denied Ecklund parole, for substantially the same reasons as before, stating that his prospects for rehabilitation were poor and his continued denial of guilt was a risk factor. The Board noted that Ecklund had participated in and completed a chemical dependency program and was declared in need of no further dependency programs unless he relapsed. Yet the Board opined that Ecklund had failed to admit or to address his alcohol problem. Their report stated:
The risk to the community is simply too high because of his total denial of both this offense and what clearly appears to be alcoholism. Until he can deal with at least his substance abuse problem, he is too great a risk to release into the community. He should be commended for doing well in other respects as he has not had any infractions since 1985 and continues to be employed in the institution. Prior to the next .100 hearing, the Board would expect that Mr. Ecklund would involve himself in Victim Awareness, Alternatives to Violence, and attendance at AA/NA.
The Board ordered Ecklund to serve an additional 24 months.
E. Third and Most Recent Parole Hearing
Following the 1995 hearing, Ecklund participated in additional substance abuse programs and began attending weekly Alcoholics Anonymous meetings. He took stress/anger management classes, "Alternatives to Violence," "Leonard Shaw" seminars, and "Breaking Barriers." He continued his employment as a machine tool operator in the prison laundry and had no infractions.
Ecklund also participated in another psychological evaluation with Dr. Riedel. Riedel found "no signs of a formal mood or thought disorder" and no indication of "severe mental health problems," but noted that Ecklund continued to deny guilt and a substance abuse problem. Dr. Riedel also reported:
[H]e lacks many of the risk factors that otherwise would indicate a high risk for reoffending; no juvenile delinquency, no prior acts of physical violence documented, no prior adult offenses other than traffic violations, and no major infractions during incarceration involving fighting or assaultiveness. He has in fact maintained a major infraction-free record during his incarceration since 1985, has programmed adequately, and involved himself in a number of constructive activities. Thus, given all the years he has served, one wonders whether it would now make much difference in terms of his risk of reoffending whether or not he admits to having committed the instant offense.
(Emphasis added.). Finally, Dr. Riedel recited the previous 1993 psychological evaluation, which had rated Ecklund's parolability as fair and that "his risk of reoffending does not appear to be imminent or very high if he can avoid relapse into alcohol abuse."
On October 8, 1996, the Board considered Dr. Reidel's report and again denied Ecklund parole, stating:
This panel continues to be concerned with Mr. Ecklund's parolability, primarily due to the fact that he continues to deny his involvement in the crime; however all of the evidence is in the contrary. He continues to deny the fact that he is an alcoholic and now he grudgingly admits that perhaps he does or did have an alcohol problem....
....
It is the recommendation of this panel to find Mr. Ecklund not parolable and add 60 months based on a history of denial and concern regarding his denial as to what kind of risk he would present in returning to the community.
(Emphasis added.).
Ecklund has served more than his standard range maximum of 320 months, less good time. With the additional 60 months *1293 ordered by the Board, Ecklund is now serving an exceptional minimum term.
In his personal restraint petition, Ecklund challenges his exceptional minimum term. He contends the Board's reasons for denying parole are not supported by the facts, do not support an exceptional minimum term, and violate his Fifth Amendment right against self-incrimination.
ANALYSIS
A. Standard of Review
To prevail on a PRP, a petitioner must establish either actual and substantial prejudice arising from constitutional error, or nonconstitutional error that inherently results in a "complete miscarriage of justice." In re Personal Restraint of Cook, 114 Wash.2d 802, 803, 792 P.2d 506 (1990). Ecklund presents a prima facie showing of both types of error..
On review we determine whether the Board's reasons for imposing an exceptional, additional term of confinement are supported both factually, using a clearly erroneous standard of review, and as a matter of law. State v. Ross, 71 Wash.App. 556, 561-62, 861 P.2d 473 (1993), 883 P.2d 329 (1994). Here, insofar as the Board's reasons for imposing an exceptional term of confinement are premised on Ecklund's denial of guilt, these reasons are not supported factually or as a matter of law.
B. Board's Duty
The Board has a statutory duty to conduct a plenary review of a convicted offender's history when making decisions regarding release and confinement:
To assist it in fixing the duration of a convicted person's term of confinement, and in fixing the conditions for release from custody on parole, it shall not only be the duty of the board ... to thoroughly inform itself as to the facts of such convicted person's crime but also to inform itself as thoroughly as possible as to such convict as a personality. The department of corrections and the institutions under its control shall make available to the board ... on request its case investigations, any file or other record, in order to assist the board in developing information for carrying out the purpose of this section.
RCW 9.95.170. Thus, each time the Board considers a petitioner's possible parole release or duration of confinement, it must review his entire history.
The Legislature requires the Board to set post-SRA minimum terms for pre-SRA offenders that are "reasonably consistent" with the SRA's purposes, standards, and sentencing ranges, taking into consideration the minimum term recommendations of the trial judge and prosecutor. Locklear, 118 Wash.2d at 413-14, 823 P.2d 1078; RCW 9.95.009(2). But unlike sentencing courts, the Board may consider additional factors, such as "rehabilitative aims" and future dangerousness, in determining a minimum term for a prisoner sentenced before enactment of the SRA. Locklear, 118 Wash.2d at 413-14, 823 P.2d 1078. But if the Board departs from the presumptive SRA range, it must give "adequate written reasons" in support of the exceptional sentence. RCW 9.95.009(2).
The Legislature has further provided that: "The board shall not, however, until his maximum term expires, release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release." RCW 9.95.100 (repealed by RCW 9.95.900 for offenses committed on or after July 1984). The Board must also consider future dangerousness to the public before setting a new minimum term of confinement or granting parole. RCW 9.95.009(2), as interpreted in Addleman v. Board of Prison Terms & Paroles, 107 Wash.2d 503, 730 P.2d 1327 (1986), and cited in In the Personal Restraint Petition of Locklear, 118 Wash.2d 409, 414, 823 P.2d 1078 (1992).
[RCW 9.95] authorizes the Board to set the minimum discretionary term of imprisonment before expiration of the mandatory minimum term. As noted by the Washington Supreme Court, this is a substantial restriction on the discretionary ability of the Board to deny a parole hearing. See [In re Personal Restraint of Powell, 117 Wash.2d 175, 814 P.2d 635,] 641-42 [(1991)]. No longer does the possibility *1294 exist that an inmate can be forever denied parole. [A prisoner] is now guaranteed a parole hearing at the end of the discretionary minimum term.
Powell v. Ducharme, 998 F.2d 710, 714 (9th Cir.1993), cert. denied, 516 U.S. 825, 116 S.Ct. 91, 133 L.Ed.2d 47 (1995) (Emphasis added).
Here, the Board has indicated it will consider Ecklund rehabilitated only if he admits guilt and alcoholism; until then, the Board considers him too great a danger to society. Given the unlikelihood that Ecklund will renounce his persistent protestations of innocence after nineteen years of incarceration, the Board's withholding parole until he admits guilt is tantamount to forever denying parole. The law does not accord the Board such broad discretion. Powell, 998 F.2d at 714.
1. Denial of Guilt
Contrary to the professional opinion of the psychiatrist[1] who examined Ecklund, the Board reached its own conclusion that Ecklund is at risk to reoffend, primarily because he claims innocence.[2] The Board further assumed that Ecklund cannot meaningfully participate in further counseling or rehabilitation until such time as he admits guilt. But use of denial of guilt as an aggravating factor justifying an exceptional sentence violates a convicted offender's constitutional right to remain silent. State v. Garibay, 67 Wash.App. 773, 782, 841 P.2d 49 (1992). Additionally, it is a miscarriage of justice for the Board to resurrect this point years after it considered Ecklund's denial of guilt and found deviation from the standard range minimum to be unwarranted, especially absent identified intervening factors justifying a departure from Ecklund's original mid-range term.
Moreover, refusing parole based on denial of guilt after an offender has served his maximum standard range is not "reasonably consistent" with SRA standards. Under the SRA, a trial court cannot impose an exceptional sentence based on an offender's exercise of his or her constitutional rights. See State v. Crutchfield, 53 Wash.App. 916, 927, 771 P.2d 746 (1989) ("the exercise of a constitutional right should not be used as a reason for departure from the standard range"); Garibay, 67 Wash.App. at 782, 841 P.2d 49. As stated in Garibay 67 Wash.App. at 782, 841 P.2d 49:
... Mr. Garibay has a constitutional right to remain silent, and the sentencing court's use of silence to show "lack of remorse" as an aggravating factor violates that right; it is tantamount to requiring him to admit he is guilty of the crime charged. Trial courts may not use a defendant's silence or continued denial of guilt as a basis for justifying an exceptional sentence.
Garibay, 67 Wash.App. at 782, 841 P.2d 49. Similarly, the Board cannot use denial of guilt to show lack of rehabilitation or future dangerousness. Allowing the Board to do so would be tantamount to "holding that the defendant who exercises his constitutional right not to incriminate himself ... has thereby operated to increase his own punishment." Crutchfield, 53 Wash.App. at 926, 771 P.2d 746.[3]
An aggravating factor will not support an exceptional sentence unless (1) the Legislature did not consider it in establishing standard range for the charged crime, and (2) it is sufficiently substantial and compelling to distinguish the offense in question from others in the same category. State v. Way, 88 Wash.App. 830, 946 P.2d 1209 (1997). In setting standard range sentences of the SRA, the Legislature implicitly acknowledged the constitutional right of an accused to deny involvement in crimes with *1295 which he is charged. Ecklund's denial of guilt is not sufficiently compelling or rare so as to justify deviation from the standard range sentences for homicide set by the Legislature.
Further, the record does not support the Board's conclusion that Ecklund's continued protestations of innocence render him at risk to reoffend. Although the Board need not defer to Dr. Riedel's opinion that admission of guilt at this juncture would be of marginal significance, the Board's reasons for an exceptional sentence must find some support in the record. State v. Estrella, 115 Wash.2d 350, 355-56, 798 P.2d 289 (1990). "[U]nsupported opinions and conclusions, rather than evidentiary facts," cannot support an exceptional term. See In re Personal Restraint Petition of Vega, 59 Wash.App. 673, 677, 800 P.2d 849 (1990) (citing RCW 9.94A.370(2); State v. Wood, 42 Wash.App. 78, 83, 709 P.2d 1209 (1985)).
2. Denial of Substance Abuse Problem
The Board also cites Ecklund's failure to acknowledge his substance abuse problem as creating a high risk to reoffend. Although he did not admit being an alcoholic to the Board's satisfaction,[4] he did "grudgingly admit" his alcohol problem. Dr. Riedel opined that Ecklund's likelihood of reoffending was low, unless he began drinking or abusing drugs. He also noted that Ecklund's "major risk factors center around his history of limited substance abuse."
The record shows that Ecklund has addressed his alcohol problem to a considerable extent: He attends weekly AA meetings, has successfully completed all available Board-prescribed programs,[5] and was discharged from substance abuse counseling with a "hopeful" prognosis. Moreover, in 1992 a prison-sponsored chemical dependency program determined he was no longer in imminent need of further programs.
Yet the Board apparently considers as a factor in denying parole, Ecklund's failure to admit that he had a substance abuse problem. In light of the psychiatrist's prediction of future criminal involvement if Ecklund becomes involved in substance abuse, the Board could reasonably infer that Ecklund is more likely to become re-involved with drugs and alcohol, thus increasing his risk of reoffending, if he denies this problem.
3. General Psychological Problems
The Board was also concerned with Ecklund's "emotionless" demeanor, holding in his emotions, and inadequate dealing with his anger over being wrongfully imprisoned for 20 years if innocent. The Board stated, "Those are issues he must deal with and must have some resolution to before he is considered a viable candidate for parole."
The Board is entitled to consider Ecklund's emotional state in deciding when to release him. But the Board's conclusion that he is a "time bomb" and a danger to society finds little factual support in the record. Dr. Riedel noted: that Ecklund suffered from no "formal mood or thought disorder" and no "severe mental health problems"; and that Ecklund's chances of adapting to parole are "fair" and his risk of reoffending is not "imminent or very high." If Ecklund's emotional state is to be a factor in denying Ecklund parole, it, too, must be based on facts unrelated to Ecklund's denial of guilt.
CONCLUSION
We cannot discern from the record whether the Board would have concluded that Ecklund is not rehabilitated, is dangerous, or is likely to reoffend had it not improperly considered *1296 Ecklund's denial of guilt. Quoting the Supreme Court,
While we express no opinion as to the length of [the] new minimum term, the record before us does not demonstrate that the ISRB made the necessary inquiries and took the required steps in order to impose an exceptional minimum term. The ISRB may have valid reasons for imposing an exceptional minimum term ... but it did not provide the Court of Appeals with those reasons. We will not speculate as to what those reasons are.
Locklear, 118 Wash.2d at 421, 823 P.2d 1078. Accordingly, we grant the petition, vacate the Board's setting of Ecklund's new minimum term on October 8, 1996, and remand to the Indeterminate Sentence Review Board for reconsideration. The Board shall reconsider Ecklund's parolability, without regard to his claim of innocence and denial of guilt. In light of our ruling, we need not address the remaining issues.
HOUGHTON, C.J., and MORGAN, J., concur.
NOTES
[1] Dr. Riedel does not view Ecklund's refusal to admit guilt as creating a likelihood of reoffending; rather, he doubts that Ecklund's confession would make much difference in his prospects for rehabilitation, especially after so many years of confinement.
[2] At Ecklund's October 1996 hearing, the Board stated, "This panel continues to be concerned with Mr. Ecklund's parolability, primarily due to the fact that he continues to deny his involvement in the crime; however, all of the evidence is in the contrary."
[3] The Board may also consider the evidence and facts of the crime, the offender's history, and emotional state.
[4] According to the Board's report, "He continues to deny the fact that he is an alcoholic and now he grudgingly admits that perhaps he does or did have an alcohol problem."
[5] At Ecklund's October 1996 hearing, at which the Board added 60 months to his minimum term, the Board noted, "The Board last saw Mr. Ecklund in May of 1995 and requested that he participate in some programming to include Victim Awareness, Alternatives to Violence, and participation in NA (Narcotics Anonymous) and/or AA (Alcoholics Anonymous). He has complied with those expectations with the exception of Victim Awareness, which is not offered at this facility." The record reflects no reason why Ecklund could not participate in further Board-ordered counseling that is not dependent upon admission of guilt.
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192 F.Supp. 574 (1961)
KEYS ENGINEERING COMPANY, a Florida corporation, Plaintiff,
v.
BOSTON INSURANCE COMPANY, a Massachusetts corporation, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania corporation, Defendants.
No. 9201-M-Civil.
United States District Court S. D. Florida, Miami Division.
February 13, 1961.
*575 Norman S. Pallot, Miami, Fla., for plaintiff.
James Hurley, Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., for defendant, Boston Ins. Co.
A. Judson Hill, Hill, Welsh, Cornell, Ross & Pyszka, Miami, Fla., for defendant, American Cas. Co. of Reading, Pa.
LIEB, District Judge.
This Cause came on to be heard before the Court, sitting without a jury. The Court having considered the stipulated facts, having examined the exhibits placed in evidence in this cause, and having considered the arguments and briefs of counsel for the respective parties, does now enter its Findings of Fact and Conclusions of Law.
Findings of Fact
1. This is a suit for a declaratory decree, brought by Keys Engineering Company, the insured, against the Defendants, Boston Insurance Company and American Casualty Company of Reading, Pennsylvania, the insurers, for a determination of and enforcement of the rights of the insured, pursuant to policies of insurance with each of the insurers.
2. On March 21, 1956, the American Casualty Company issued its policy of insurance to the Keys Engineering Company through its agent, Keys Insurance Agency. This policy being a "Standard Workmen Compensation and Employers' Liability Policy", No. U-32556, for a period from March 21, 1956, to March 21, 1957.
3. On June 1, 1956, the Boston Insurance Company issued its policy of insurance to Keys Engineering Company, through the Key West Insurance Co. This policy being a "ship owners Liability Policy" upon the Dredge "Clearwater", No. 486460, for a period from June 1, 1956, to June 1, 1957.
4. The Keys Engineering Company paid the full premium due for each of the said policies, in consideration for the issuance of the said policies of insurance.
5. On June 6, 1956, while the said policies of insurance were in full force and effect, Noard L. Baker, an employee of Keys Engineering Company, was fatally injured while in the course of his employment while aboard the Dredge "Clearwater".
6. On January 12, 1959, the estate of Noard L. Baker and his widow, Florence Baker, recovered a Judgment against the Keys Engineering Company for the sum of $80,000, plus interest and court costs, in the United States District Court for the Southern District of Florida, case No. 7983-M-Civil.
7. Boston Insurance Company was requested and did defend Keys Engineering Company without prejudice in the case of the estate of Noard L. Baker and his widow, Florence Baker, in the United *576 States District Court for the Southern District of Florida, case No. 7983-M-Civil.
8. The Defendant insurers were requested to pay the aforementioned judgment. Boston Insurance Company paid $55,000 but refused to pay any further sum. American Casualty Company refused to pay any sum on account of said Judgment.
9. On February 24, 1959, the sum of $80,782.04 was paid in full satisfaction of the said Judgment.
10. The Keys Engineering Company paid upon the said Judgment the sum of $25,782.04, that being the difference between the total judgment plus interest and the $55,000 paid by Boston Insurance Company.
11. Keys Engineering Company's claim against both of the Defendant insurers is for the aforesaid sum of $25,782.04.
12. The American Casualty Company policy of insurance contains two separate and distinct coverages:
(1) "Workmen's Compensation" referred to as Coverage "A".
(2) "Employer's Liability" referred to as Coverage "B".
13. The wording of the policy describing the "coverage" offered by "Workmen's Compensation" Coverage "A", is as follows:
Page 1, Item 3:
"Coverage A of this policy applies to the workmen's compensation law and any occupational disease law of each of the following states: Florida."
Page 2, Paragraph 1:
"Coverage A Workmen's Compensation. To pay promptly when due all compensation benefits required of the insured by the workmen's compensation law."
14. The wording of the policy describing the coverage offered by "Employers' Liability" Coverage "B", is as follows:
Page 2, Paragraph 1; Sub-paragraph 2:
"Coverage B Employers' Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada by any employee of the insured arising out of and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declarations or in operations necessary or incidental thereto."
15. It has been judicially determined by this Court in the prior suit by the Estate of the said deceased employee against Keys Engineering Company, that the said employee, Noard L. Baker, did not come within the Florida Workmen's Compensation Act. F.S.A. § 440.01 et seq.
16. On November 8, 1955, a letter [American Casualty Company's Exhibit C] was sent from the offices of the Plaintiff, Keys Engineering Company, to the Key West Insurance Company requesting a corrected billing for the coverage afforded by American Casualty Company Policy No. U-19311 for the reason that certain employees of the Plaintiff were covered by a standard P & I policy written by the Defendant, Boston Insurance Company. On October 29, 1957, after the occurrence of the loss from which this suit resulted, American Casualty Company sent a corrected bill to the Keys Insurance Agency showing a return premium of $120.04 to be due to the Plaintiff on Policy No. U-32556, which corrected billing was acted upon by the Keys Insurance Agency by crediting the account of Keys Engineering Company for the said amount.
17. The policy of insurance issued by American Casualty Company, No. U-32556, contains the following provision:
*577 "(11) If the insured has other insurance against a loss covered by this policy, the company shall not be liable to the insured hereunder for a greater proportion of such loss than the amount which would have been payable under this policy, had no such other insurance existed, bears to the sum of said amount and the amounts which would have been payable under each other policy applicable to such loss, had each such policy been the only policy so applicable."
18. The policy of insurance in force issued by Boston Insurance Company, No. 486460, contains the following provision:
"Provided that where the Assured is, irrespective of this insurance, covered or protected against any loss or claim which would otherwise have been paid by this Company, under this policy, there shall be no contribution by this Company on the basis of double insurance or otherwise."
Conclusions of Law
1. The Court has jurisdiction of the subject matter and all of the parties of record in this cause.
2. Keys Engineering Company and American Casualty Company are bound by the terms and conditions of the policy of insurance, No. U-32556, issued for the period March 21, 1956, to March 21, 1957, and Keys Engineering Company and Boston Insurance Company are bound by the terms and conditions of the policy of insurance issued for the period June 1, 1956, to June 1, 1957.
3. In order to be effective, a notice of cancellation of a policy of insurance must be unequivocal and absolute.
4. The letter of November 28, 1955, written by an employee of Keys Engineering Company to American Casualty Company is not an unequivocal and absolute notice of cancellation and did not effectuate a cancellation of the policy of insurance in force at the time of the mailing of the letter, nor did it effectuate a cancellation of any subsequent policy of insurance.
5. The policy of insurance issued by American Casualty Company was composed of two distinct coverages: (1) Workmen's Compensation Coverage, and (2) Employers' Liability Coverage; each being exclusive of the other and each indemnifying the Plaintiff against liabilities not included in the other coverage.
6. The death of Noard L. Baker created a liability of Keys Engineering Company contemplated by coverage afforded by the employers' liability portion [coverage B] of the said policy of insurance.
7. The policy of American Casualty Company, No. U-32556, was in full force and effect on the date of the death of Noard L. Baker and the liability resulting from the death of Noard L. Baker was a risk covered by said policy of insurance.
8. That provision of the policy issued by American Casualty Company referred to in Finding of Fact No. 17 is a valid "other insurance" pro-ration provision and should be given effect in determining the liability of the parties to this suit.
9. The coverage afforded by Boston Insurance Company's policy constituted "other insurance" within the meaning of the "other insurance" clause of American Casualty Company's policy as set out in Finding of Fact No. 17. That provision of the policy of the Defendant, Boston Insurance Company, referred to in Finding of Fact No. 18 does not have the effect of limiting Boston Insurance Company's liability on its policy to the sum of $55,000, but merely limits the coverage of the Boston policy to that portion of the loss remaining after determining the liability of American.
10. American Casualty Company is liable to Keys Engineering Company under the employers' liability [coverage B] portion of its policy for a sum *578 to be computed by applying the formula as outlined in the pro-ration provision of the American Casualty Company policy.
11. Boston Insurance Company is liable to the Plaintiff, Keys Engineering Company, under its policy of insurance for the pro-rata share of the loss insured upon, said share to be determined by application of the formula contained in American's policy less a credit of $55,000 heretofore advanced by the Boston Insurance Company to Keys Engineering Company.
12. American Casualty Company and Boston Insurance Company are liable to the Keys Engineering Company for the following sums:
a. $25,782.04, plus
b. interest thereon at the legal rate from February 24, 1959, to this date, plus
c. court costs expended herein by the Plaintiff.
13. American Casualty Company is liable to the Plaintiff for an attorneys fee in the amount of $1,500. Boston Insurance Company is liable to the Plaintiff for an attorneys fee in the amount of $500.
14. The formula contained in the "other insurance" clause of American Casualty Company's policy shall be applied as follows:
"(11) If the insured has other insurance against a loss covered by this policy, the company shall not be liable to the insured hereunder for a greater proportion of such loss [$80,782.04] than the amount which would have been payable under this policy [$25,000.00] had no such other insurance existed, bear to the sum of said amount [$25,000.00] and the amount [$80,282.04, after allowing the $500.00 deductible] which would have been payable under each other policy applicable to such loss [said sum being $25,000.00 plus $80,282.04 or $105,282.04] had each such policy been the only policy so applicable."
15. After applying the aforesaid
formula in the manner described the
Plaintiff, Keys Engineering Company,
is entitled to judgment against the American
25,000.00
__________
Casualty Company for 105,282.04
of $80,782.04, together with interest
thereon from February 24, 1959, and its
costs in this action. The Plaintiff, Keys
Engineering Company, is entitled to
judgment against the Boston Insurance
Company for the remainder of said sum
of $80,782.04, less the sum of $55,000
heretofore advanced to the Plaintiff,
Keys Engineering Company, by the Defendant,
Boston Insurance Company, together
with interest from February 24,
1959, and for its costs in this action.
The Plaintiff is further entitled to judgment
for attorneys fee in the sum of
$1,500 against the Defendant, American
Casualty Company, and to judgment for
attorneys fee in the sum of $500 against
the Defendant, Boston Insurance Company.
Plaintiff will prepare a Final Judgment in accordance with the foregoing Findings of Fact and Conclusions of Law submitting it to counsel for the Defendants for approval as to form only.
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90 F.3d 302
UNITED STATES of America, Plaintiff-Appellee,v.Martin LEWIS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Delano Eugene MAXWELL, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Hassan MAJIED, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Chester DAVIS, Defendant-Appellant.
Nos. 95-4104NE, 95-4105NE, 95-4107NE and 95-4108NE.
United States Court of Appeals,Eighth Circuit.
Submitted June 14, 1996.Decided July 22, 1996.Rehearing and Suggestion for Rehearing En Banc Denied Aug. 26, 1996.
Alan G. Stoler, Omaha, NE, argued (Brent Bloom and W. Russell Bowie, on the brief), for appellants.
William W. Mickle, II, Asst. U.S. Atty., Omaha, NE, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and KORNMANN,* District Judge.
RICHARD S. ARNOLD, Chief Judge.
1
In this case we are asked to hold that recent developments concerning the Sentencing Guidelines' 100:1 ratio between "crack" and powder cocaine1 justify a downward departure from the sentences prescribed by the Guidelines for "crack" offenses. The District Court2 rejected this contention, and we affirm.
I.
2
A jury convicted the appellants of various drug-related crimes. At the initial sentencing, the District Court rejected the appellants' equal-protection challenge to the 100:1 crack / powder ratio, but nonetheless departed downward from the applicable guideline range. The Court noted the ratio's disparate impact on black defendants and stated that " '[t]his disparate impact was not contemplated by Congress nor was it considered by the Sentencing Commission in developing the guideline ranges for users of crack cocaine.' " United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir.) (citation omitted), cert. denied, 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994). Delano Maxwell and Hassan Majied received 20-year prison sentences; Martin Lewis and Chester Davis were given 10-year terms.
3
We reversed, and remanded the case for resentencing, holding that
4
[W]hile [the] racially disparate impact [of the ratio] may be a serious matter, it is not a matter for the courts, and, therefore, not a basis upon which a court may rely to impose a sentence outside of the applicable Guidelines range.
5
Id. at 1401 (citation omitted); see also United States v. Lattimore, 974 F.2d 971, 976 (8th Cir.1992) ("This is not to say that a racially disparate impact is not a serious matter."), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). We noted that "Congress specifically intended to provide more severe penalties for cocaine base...." Maxwell, 25 F.3d at 1401; see also Lattimore, 974 F.2d at 975-76 ("Congress was reacting to the dramatic appearance of crack on America's streets and the violent impact crack would have upon the drug trade in the United States ...."); see generally United States v. Buckner, 894 F.2d 975, 978-80 & n. 9 (8th Cir.1990) (describing legislative history).
6
At resentencing, the appellants again moved for downward departure. In support, they pointed to (1) a recent statement by the President recognizing the disparity between sentences for crack and sentences for cocaine powder, Presidential Statement on Signing S. 1254, 1995 WL 634347 (Oct. 30, 1995); (2) the Sentencing Commission's recent recommendation against the 100:1 ratio, U.S. Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 198-200 (1995); and (3) Public Law 104-38 (S.1254), which rejected the Commission's recommendations but directed it to submit new recommendations for changing the drug-quantity ratio.
7
The District Court rejected (reluctantly) the appellants' motions for downward departure. The Court stated:
8
It's not that I disagree with [the motions]. I'm denying [them] because I don't believe I have the authority to depart downward .... If I thought I had the authority to depart ..., I would depart. But I don't believe I have the authority to do it, and it is for that reason that I deny the motion to depart.
9
Maxwell Sentencing Hearing, at 12 (Nov. 20, 1995). The Court then sentenced Maxwell and Majied to 30-year prison terms; Davis, to 14 years; and Lewis, to 12 years and seven months. The appellants now argue that the District Court erred in concluding that it lacked the authority to depart. Put differently, the appellants believe that this Court was wrong, and the District Court was right, the first time around. We disagree, and we affirm.3
10
We heard arguments in this case the day after the Supreme Court decided Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Counsel for appellants, demonstrating a commendable familiarity with the law's latest developments, brought the case to our attention. We conclude, though, for reasons discussed below, that Koon does not support the appellants' argument.
II.
11
A district court may impose a sentence outside the applicable guideline range if the court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. The key question is whether an individual case presents a "characteristic or circumstance [which] distinguishes the case from the 'heartland' cases covered by the guidelines in a way that is important to the statutory purposes of sentencing." § 5K2.0. Put differently, is the case "atypical," "one to which a particular guideline linguistically applies but where the conduct significantly differs from the norm"? Koon, --- U.S. at ----, 116 S.Ct. at 2044 (quoting U.S.S.G. ch.1, pt.A, intro. comment 4(b)). Such cases are "extremely rare." § 5K2.0 cmt.
12
We agree with the District Court that it had no authority to depart. The crack / powder ratio and its disparate impact are not "aggravating or mitigating circumstances" particular to the appellants' case which distinguish theirs from "heartland" cases. Section 5K2.0 is designed to allow district courts to "consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon, --- U.S. at ----, 116 S.Ct. at 2053 (emphasis added).4 But all defendants convicted of crack-related crimes receive harsh sentences; the appellants' cases are no different from any other, "heartland" crack cases. See United States v. Fike, 82 F.3d 1315, 1326 (5th Cir.1996) ("Appellants have advanced no theory which would distinguish their cases from the 'heartland' of crack offenses."). The appellants contend, in effect, that black defendants should receive less severe sentences than other defendants convicted of crack-related offenses, a contention we must reject.5
13
In any event, the appellants' new evidence (the Commission's recommendations, the President's statement, etc.) does not prove what they think it does. This evidence leaves no room to argue that Congress has not considered the ratio's disparate impact on black defendants or that Congress did not intend the long sentences the ratio compels. It is true that the Sentencing Commission "strongly recommend[ed] against a 100-to-1 quantity ratio" and proposed a new model focusing on "offender-specific guideline enhancements," such as using juveniles in crack-dealing. U.S. Sentencing Commission, Special Report, supra. But, as we already noted in United States v. Higgs, 72 F.3d 69, 70 (8th Cir.1995), Congress has rejected the Sentencing Commission's recommendation. We held in Higgs that, the Commission's recommendation notwithstanding, the crack-to-powder ratio's disparate impact was "not a basis upon which a court may rely to impose a sentence outside the applicable Guidelines range." Id. (citing Maxwell, 25 F.3d at 1401).
14
As for the President's statement, it doesn't support the appellants' position either. True, the President recognized the disparity between sentences for crack and powder cocaine, said that "[s]ome adjustment is warranted", and noted that the law he was signing (Pub.L. 104-38) directed the Commission to "undertake additional review of these issues ...." Presidential Statement, supra. More to the point, though, the President also declared:
15
Today I reject United States Sentencing Commission proposals that would equalize penalties for crack and powder cocaine distribution by dramatically reducing the penalties for crack....
16
Trafficking in crack, and the violence it fosters, has a devastating impact on communities across America, especially inner-city communities. Tough penalties for crack trafficking are required because of the effect on individuals and families, related gang activity, turf battles, and other violence.
17
Id. Finally, as the President's remarks signing the Law make clear, Pub.L. 104-38 itself also undermines the appellants' position. The law is titled "An Act to disapprove of amendments to the Federal Sentencing Guidelines relating to lowering of crack sentences ...," and it provides that the Commission's proposed amendments concerning the 100:1 ratio "are hereby disapproved and shall not take effect." And although the law did direct the Commission to study the matter further, it also stated that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine." Id. at § 2(a)(1)(A). So, the appellants' new "evidence," far from proving that the 100:1 ratio's disparate impact or severity calls for a downward departure, instead proves that Congress (and the President and the Sentencing Commission) have considered the matter, and that the ratio, its disparate impact notwithstanding, remains the law. (Disparate impact is not enough to make a law unconstitutional under the equal-protection component of the Due Process Clause of the Fifth Amendment. Discriminatory purpose is required, and no such purpose has been proved.)
18
The Supreme Court's recent decision in Koon supports our analysis. In Koon, the Court decided that, even under the Guidelines, district courts "retain much of their traditional sentencing discretion" and, therefore, trial courts' decisions to depart downward--when departure is authorized--should be reviewed for abuse of discretion, rather than de novo. Koon, --- U.S. at ---- - ----, 116 S.Ct. at 2046-48. That case provides no support, though, for appellants' claim, which is, essentially, that the federal courts have the power to depart downward in crack-related cases because Congress has adopted what appellants believe is an unwise sentencing policy. Koon in no way undercuts our conclusion that § 5K2.0 gives district courts the power to depart for unusual circumstances peculiar to particular cases, and not for reasons common to a whole class of cases.6
19
In the end, nothing has changed since our prior opinion in this case: The 100:1 ratio's disparate impact on black defendants, which is without question a disturbing fact, is not a basis upon which a court may rely to depart downward. See Maxwell, 25 F.3d at 1401; Higgs, 72 F.3d at 70; see also United States v. Arrington, 73 F.3d 144, 146 (7th Cir.1996) (noting that "every other circuit to consider [the ratio's disparate impact] has concluded that [it] does not justify a downward departure from the guidelines") (citing cases); United States v. Anderson, 82 F.3d 436 (D.C.Cir.1996) (discussing Pub.L. 104-38 and holding that Sentencing Commission's recommendation did not empower the district court to depart downward). As the new statute indicates, the Commission may re-examine this question and make a new recommendation. That new recommendation may be that the 100:1 ratio be changed, and "crack" sentences may someday be reduced. But that day is not yet, and it is our duty to apply the law as it exists today.
III.
20
It is not for us to decide whether the 100:1 ratio is wise or equitable; that is a question for the popularly chosen branches of government. See Lattimore, 974 F.2d at 976. They have made their view quite plain. We express our appreciation to appointed counsel for their diligent service in these appeals.
21
Affirmed.
*
The Hon. Charles B. Kornmann, United States District Judge for the District of South Dakota, sitting by designation
1
For sentencing purposes, cocaine base, or "crack," is "worth" 100 times as much as cocaine powder. See 21 U.S.C. § 841(b); U.S.S.G. § 2D1.1. This harsh rule results in severe sentences for crimes involving relatively small amounts of crack cocaine, see United States v. Willis, 967 F.2d 1220, 1226 (8th Cir.1992) (Heaney, J., concurring)
2
The Hon. Lyle E. Strom, United States District Judge for the District of Nebraska
3
The United States argues that this Court may not review the District Court's "decision not to depart." In this case, though, "the real question is whether the district court was correct in its opinion that it had no power to depart, not whether it would have chosen to depart if it had the power." United States v. Kelley, 956 F.2d 748, 751 (8th Cir.1992). The District Court's decision involves a "question of law," id., which we review de novo. See Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996) (noting that "whether a factor is a permissible basis for departure under any circumstances is a question of law ...")
4
The Commentary to § 5K2.0 states in part:
In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized.
5
Under the Guidelines, a defendant's race is one of the few factors that is never a permissible reason for departure. Maxwell, 25 F.3d at 1401; Koon, --- U.S. at ----, 116 S.Ct. at 2044-45 (citing U.S.S.G. § 5H1.10)
6
See Koon, --- U.S. at ----, 116 S.Ct. at 2052 (police officers' job loss could not be a reason for downward departure because "[i]t is to be expected that a government official would be subject to the career-related consequences petitioners faced ...")
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559 F.2d 1211
Davisv.Muncy
No. 77-1191
United States Court of Appeals, Fourth Circuit
8/10/77
1
E.D.Va.
AFFIRMED
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83 P.3d 851 (2003)
2003 OK 111
CITY OF NORMAN, A Municipal Corporation, Own Risk, Petitioners,
v.
Danny Joe GARZA, The Workers' Compensation Court, Respondents.
No. 97,195.
Supreme Court of Oklahoma.
December 16, 2003.
*852 Jeff F. Raley, Norman City Attorney, Rickey J. Knighton, II, Jeff H. Bryant, Assistant City Attorneys, Norman, OK, for Petitioner.
K. David Roberts, Oklahoma City, OK, for Respondents.[1]
WINCHESTER, J.
¶ 1 The dispositive issue on certiorari is whether the Court of Civil Appeals was correct in declaring a lack of competent proof to support the panel's order granting claimant temporary total disability benefits and psychological treatment. We answer this question in the affirmative.
¶ 2 On December 21, 2000, claimant filed his Form 3 wherein he sought psychiatric medical treatment for Post Traumatic Stress Syndrome and depression, and Temporary Total Disability benefits during that treatment. Claimant alleged stomach injury and *853 psychological overlay. At trial on March 29, 2001, the trial tribunal held claimant's claim was compensable, awarded TTD and ordered psychological treatment. The Workers' Compensation Court En Banc subsequently affirmed the trial tribunal. In an unpublished opinion, the Court of Civil Appeals, Division I, vacated the decision of the Workers' Compensation Court. We granted certiorari.
FACTS AND PROCEDURAL HISTORY
¶ 3 The record reflects that claimant is a fifteen-year police officer with the City of Norman. He has been a police officer for a total of twenty-three years. Claimant signed and filed an Injury Report Form with his employer on December 4, 2000. This report lists his injury as "emotional trauma, by diagnosis approx. 28 November, 2000." It states the cause as an "auto accident with death and injury to three others alcohol-related; child involved." The date of injury is listed as "6-3 or 6-10-2000."[2] While claimant contends other stressful situations such as the May 1999 tornado and the Oklahoma City bombing contributed to his stomach ailment, depression and PTSD, he waited until March 2000 to visit a physician years after the bombing and approximately ten months after the tornado. In addition, neither event is referenced in claimant's December 4, 2000, Injury Report Form.
¶ 4 Claimant testified he saw his family doctor, Dr. Alan B. Husky in March 2000. He further testified this was "the first official time maybe" he realized his physical issue involved his stomach. Trial Tribunal TR. at p. 18. Initially, when he saw Dr. Husky, March 27, 2000, claimant complained of constipation. He returned on April 27, 2000, and Dr. Husky diagnosed gastritis and referred claimant to a gastroenterologist, Dr. Steve Arora. Dr. Arora first examined claimant on May 22, 2000, and subsequently performed numerous tests. Claimant's medical expert, Dr. Smith-Horn, states in her report that claimant's date of first awareness was June 2000. Her report then states that in June 2000, claimant "worked a particularly gruesome accident involving a severely injured child," and that he developed a rapid onset of stomach pain and diarrhea. The report states that in the days to follow, claimant suffered cramping and diarrhea when getting in his patrol car or in route to the police station. It recounts claimant's referral to Dr. Arora, and that Dr. Arora performed an endoscopy "which showed severe gastritis." However, the record reflects that Dr. Husky referred claimant to Dr. Arora on April 27, 2000, and Dr. Arora first examined him on May 22, 2000, twelve days prior to the event claimant claims caused his psychological trauma, (the car accident in June, involving a child and a fatality.) While Dr. Smith-Horn's report notes Dr. Husky's referral of claimant to Dr. Rapperger, a psychiatrist, who diagnosed him with depression and PTSD, at no juncture does it reference Dr. Arora's finding of the H. pyoli bacteria and treatment thereof. In addition, the report conflicts with claimant's testimony regarding his date of first awareness, and further conflicts with the medical records as to the date upon which claimant was referred to Dr. Arora. The report states:
"In my opinion, Mr. Garza has sustained injuries to his stomach and psychological overlay in the course of his employment for the City of Norman, Norman, Oklahoma over a period of time with a date of last exposure being August 11, 2000."
Report of Dr. Smith-Horn at p. 2.
* * *
"In my opinion, his psychological problems are a direct result of his gastritis...."
Report of Dr. Smith-Horn at p. 3.
¶ 5 Dr. Smith-Horn's report is the only medical report to attribute claimant's gastritis to his employment as a police officer with the City of Norman. Dr. Arora's progress notes of July 6, 2000, contained in the record on appeal, reflect that a stomach biopsy taken June 7, 2000, was positive for the presence of a rare bacteria, Helicobacter pylori.
*854 Dr. Arora diagnosed "Helicobacter pylori gastritis" and treated claimant accordingly.
¶ 6 Claimant testified before the trial tribunal that the last time he saw a doctor for his stomach was in August 2000. Dr. Arora's progress notes of September 28, 2000, reflect much improvement in symptoms, stating: "He says he is feeling so much better that he would like to go back to work."
¶ 7 Hence, the only possible conclusion from the competent medical evidence in the record is that the physical problem H. pylori bacteria in the stomach occurred prior to and independent of the psychological trauma claimant contends caused his depression and PTSD. The record contains no evidence that the H. pylori bacteria was caused by claimant's job, or that he somehow ingested this bacteria because of work conditions. The record further fails to reflect any medical conclusion that this bacteria was caused by stress, much less on-the-job stress. Therefore, the only possible conclusion from the competent medical evidence in the record with regard to the stomach bacteria is that its presence in claimant's stomach had nothing to do with his employment as a Norman police officer.
¶ 8 In contrast to Dr. Smith-Horn's report, the March 19, 2001, report of Dr. Kent C. Hensley clearly states on p. 2 that "The biopsy [by Dr. Arora] of the stomach revealed H-pylori and, therefore, he was felt to have H-pylori induced gastritis." Dr. Hensley also states that in his opinion:
"[T]his patient did not have a physical injury that occurred to his gastrointestinal tract as a result of his employment by the City of Norman and claimed stresses. Therefore, he does not have psychiatric overlay but does rather have a primary psychiatric illness consisting of depression and post-traumatic stress disorder as defined by Dr. Ozolins."
* * *
"In my opinion, he does not have a physical injury that occurred secondary to his employment."
Report at pp. 5-6.
¶ 9 Dr. Mickey Ozolins examined claimant and performed a psychological evaluation on March 8, 2001. Dr. Ozolins' report of March 12, 2001, states:
"Test results are consistent with severe post-traumatic stress disorder, depression, and psychogenically based stomach discomfort. Tests results also indicate a tendency to overreport his emotional distress. Likewise, results reflect that he is overly focused on somatic concerns although he does not particularly exaggerate his pain or physical discomfort in this regard. His tendency to overreact somewhat histrionically further interferes with his attention/concentration and decision making and undermines his self confidence."
Report at p. 4.
¶ 10 Dr. Ozolins classified Claimant's stomach problems as:
"psychogenic secondary to the psychological disorders of PTSD and depression.... The patient's PTSD has, nevertheless, become a chronic condition for him, apparently having ensued at least eight years ago with a fluctuation course which became more acute as the result of the patient's on the job exposure in June of 2000."
Report at p. 5.
¶ 11 The record reflects that on February 12, 2001, Petitioner filed a written objection to the medical report of Dr. Smith-Horn on the basis that the report was hearsay, lacking in probative value and incompetent. In addition, during the trial of this matter on March 29, 2001, Petitioner's attorney again objected to the report of Dr. Smith-Horn, this time as to its probative value, when claimant's attorney introduced it as Exhibit No. 1. Tr. Pp. 26-27. The court admitted the report, stating "I don't think it's totally without probative value so I'm going to overrule in terms of admissibility and that will be admitted." Tr. at p. 27.
¶ 12 On certiorari granted upon the employer's petition, we now vacate the Court of Civil Appeals' opinion, as well as the panel's and the trial judge's orders, and remand the claim for further proceedings before the trial judge, for the reasons set forth hereinbelow.
*855 STANDARD OF REVIEW
¶ 13 The standard of review for a decision of the Workers' Compensation Court's decision is whether it is supported by "any competent evidence." Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 13, 684 P.2d 548, 552. It is our responsibility to canvass the facts, not to weigh conflicting proof to determine "whether the preponderance lies but only to ascertain whether the tribunal's decision is supported by competent evidence." Id. In the instant matter, the omission of the H. pylori diagnosis from the report of Dr. Smith-Horn creates an issue as to whether she chose to ignore it, was for some reason unaware of it, or simply deemed it unimportant for purposes of her report. We cannot ascertain the reasons behind her omission but can reach a conclusion as to the consequences of her omission vis-à-vis the probative value of her report. We hold that the omission of this critical diagnostic fact from her report renders it incompetent to support the panel's award of TTD and psychological treatment to claimant. As such, this matter is appropriately remanded to the trial tribunal for further proceedings consistent herewith.
IMPACT OF THE OMISSION OF CRITICAL MEDICAL EVIDENCE IN MEDICAL EXPERT'S REPORT
¶ 14 Recently, we held in Hammons v. Oklahoma Fixture Company, 2003 OK 7, 64 P.3d 1108, that competent medical evidence failed to support the Workers' Compensation Court's order denying claimant PTD status, and that the Court of Civil Appeals erred when it directed, on remand, that claimant be awarded PTD benefits, instead of remanding the claim for further proceedings. Hammons, 2003 OK 7, ¶ 11, 64 P.3d 1108, 1112. In Hammons, the employer's medical report failed to contain a critical element, just as Dr. Smith-Horn's report fails to contain a critical element, to-wit: the discovery and treatment of H. pylori bacteria in the claimant's stomach. Just as in Hammons, in the instant case the Court of Civil Appeals correctly declared this lone medical report, (of claimant's expert Dr. Smith-Horn,) insufficient and vacated the panel's order.
¶ 15 When a trial judge's decision rests on a flawed, yet curable, medical report, we have remanded a claim for re-examination by the trial tribunal. See, e.g., Hammons v. Oklahoma Fixture Company, 2003 OK 7, 64 P.3d 1108, Gaines v. Sun Refinery and Marketing, 1990 OK 33, 790 P.2d 1073 (rev'd on other grounds.) Failure to make a proper objection does not present for our review an incorrect admission or exclusion of evidence, "but rather addresses itself to the reviewing court's power to test a critical finding that is unsupported by competent evidence." Hammons, 2003 OK 7, ¶ 6, n. 15, 64 P.3d 1108, n. 15. Thus, with this determination, the claimant should have been allowed a post-remand opportunity to explain the omission of this critical fact from Dr. Smith-Horn's report. The Gaines case, that calls for a "proper objection", fails to apply when, as in the instant matter, there is a vacuity of proof necessary to support an award. Hammons, 2003 OK 7, ¶ 6, n. 15, 64 P.3d 1108, n. 15. The case at bar is distinguishable from scenarios in which adduced proof is deemed inadmissible or otherwise legally defective. The latter requires a proper objection, to preserve an error in its admission or rejection for review on appeal. In the matter before us, Petitioner attacks a critical finding that lacks any support in competent evidence.
"To claim error in a finding that is unresponsive to the adduced evidence, one need not make an antecedent in-trial objection. Counsel are expected neither to anticipate the trial tribunal's findings nor to make presubmission objections to findings not yet made. If the law were to so require, its command would clearly offend due process within the meaning of Art. 2, Sec. 7, Okl. Const. Counsel would be compelled to forecast the trial tribunal's findings even before they receive due notice of their entry."
Hammons v. Oklahoma Fixture Company, 2003 OK 7, ¶ 6, n. 15, 64 P.3d 1108, 1111, n. 15.
¶ 16 Since we are unconcerned with the specificity of Petitioner's evidentiary objection, we do not express an opinion as to *856 claimant's complaint against Petitioner's use, on appeal, of a different argument to support the sufficiency of the in-trial objection from that which was advanced before the Workers' Compensation Court. Nor do we express an opinion as to Petitioner's complaint that claimant injects a new issue on certiorari, to-wit: claimant's objection that Petitioner failed to make a proper objection to Dr. Smith-Horn's report, during the proceeding before the trial tribunal.
¶ 17 The trial tribunal held claimant's need of psychological treatment arose out of a stomach/digestive injury that was caused by job stress. When we exclude the medical report of Dr. Smith-Horn, the record before us fails to contain competent evidence to support the decision of the trial tribunal and the three-judge panel of the Workers' Compensation Court. Thus, we hold that the trial tribunal's and the three-judge panel's award to claimant is unsupported by any competent evidence.
¶ 18 On certiorari granted upon the employer's petition, the Court of Civil Appeals' opinion as well as the trial judge's and the three-judge panel's orders are vacated; the claim is remanded for further evidentiary proceedings before the trial judge to be conducted in a manner consistent with today's pronouncement. Petitioner's Application for Leave to File Additional Briefs by Amicus Curiae is DENIED.
CERTIORARI PREVIOUSLY GRANTED; THE THREE-JUDGE PANEL'S ORDER IS VACATED; THE OPINION OF THE COURT OF CIVIL APPEALS, DIVISION I, IS VACATED.
CONCUR: WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ.
CONCURS IN PART, DISSENTS IN PART: SUMMERS, J.
DISSENTS: HARGRAVE, J.
NOTES
[1] Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.
[2] While the trial judge did not admit this report because of the Twenty-Day Rule, it is a part of the Designation of Record on Appeal.
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412 F.Supp. 705 (1976)
UNITED STATES of America, Plaintiff,
The State of Michigan et al., Plaintiffs-Intervenors,
State of Minnesota and Minnesota Pollution Control Agency, Plaintiffs,
v.
RESERVE MINING COMPANY et al., Defendants,
Northeastern Minnesota Development Association et al., Defendants-Intervenors.
No. 5-72-Civil-19.
United States District Court, D. Minnesota, Fifth Division.
May 4, 1976.
*706 John E. Varnum, Washington, D. C., for plaintiff United States.
Michael Ferring, St. Paul, Minn., for United States Army Corps of Engineers.
Byron E. Starns, Philip Olfelt, Paul Faraci and James Schoessler, St. Paul, Minn., for plaintiff State of Minnesota.
William P. Dinan, Robert Asleson, Daniel Berglund, Duluth, Minn., for plaintiff City of Duluth.
Howard Vogel, Minneapolis, Minn., for plaintiffs Minnesota Environmental Law Institute, Inc., Northern Environmental Council, Save Lake Superior Ass'n, Michigan Environmental Student Confederation, Inc., and Environmental Defense Fund, Inc.
Edward Fride, Duluth, Minn., and Maclay Hyde, Minneapolis, Minn., for defendant Reserve Mining Co.
William Egan, Minneapolis, Minn., for defendant Republic Steel Co.
John Gordon and G. Allen Cunningham, Minneapolis, Minn., for defendant Armco Steel Co.
Wayne G. Johnson, Silver Bay, Minn., for defendants Village of Beaver Bay, Silver Bay Chamber of Commerce, Village of Silver Bay, Town of Beaver Bay, Lax Lake Property Owners Ass'n.
ORDER
1. ASSESSING PENALTIES,
2. IMPOSING SANCTIONS
and
3. REIMBURSING CLEAN WATER EXPENSE
DEVITT, Chief Judge.
Plaintiff Minnesota seeks an order imposing penalties on defendants for violation of *707 state pollution control laws and regulations and, with other plaintiffs, moves for an order assessing litigation costs against Reserve Mining Company as a sanction for claimed violations of discovery rules, court orders and other misconduct.
These issues were first presented to the trial court, the Honorable Miles W. Lord presiding, in 1974 but were never adjudicated. Recently these motions were refiled and the parties have submitted legal memoranda detailing their respective positions. Although the principal issue in this lawsuitthat Reserve's discharges into the air and water violate state and federal law, create a potential health hazard and consequently should be enjoined has already been decided, Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492 (8th Cir. 1975), these secondary issues remain.
Based on all the files and records, the court concludes that: 1. assessment of penalties is not authorized or appropriate for violations specifically urged by Minnesota; 2. Reserve's violation of the terms of its state permits, which authorize discharges of production wastes into Lake Superior, calls for penalties for each day of violation; 3. Reserve's bad faith in the conduct of the defense of this lawsuit and its failure to truthfully and fully comply with discovery requests and court orders justify sanctions by way of imposition of a portion of plaintiffs' litigation expenses on defendants. We also determine that the city of Duluth is entitled to be reimbursed by defendants for interim clean water expense.
MINNESOTA'S CLAIMS FOR PENALTIES
It has been established that Reserve has violated Minnesota's pollution control laws and regulations. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 523-24, 527-29 and 532, n. 78 (8th Cir. 1975); United States v. Reserve Mining Co., 394 F.Supp. 233, 242-45; 380 F.Supp. 11, 56 (D.Minn.1974). Minn.Stat. § 115.071 subd. 3 (1974) authorizes a court to impose a fine of up to $10,000 per day for each violation of, inter alia, the laws and regulations violated by Reserve. Minnesota contends that defendants should be fined for daily violations of these laws and regulations for almost a full year.[1]
Reserve's violation of state pollution laws and regulations break down into three categories:
1. violations of regulation WPC 15, water quality and purity standards;
2. violation of air quality regulations and other pollution control requirements;
3. violations of state discharge permits.
The violations in each of these categories will be examined to determine whether penalties under Minn.Stat. § 115.071 subd. 3 (1974) are justified.
Because Reserve, from the outset, has challenged the validity and applicability of WPC 15, imposition of penalties for the many violations of this regulation is not justified.[2] Reserve appealed the final order of the Minnesota Pollution Control Agency (PCA) which implemented WPC 15 to the district court of Lake County in December of 1969. Although that court upheld WPC 15, it decided that WPC 15(a)(4), the anti-degradation clause, did not apply to Reserve and that WPC 15(c)(6), the secondary treatment and effluent limitation clause, was arbitrary and unreasonable in its application to Reserve. On appeal by the PCA, the Minnesota Supreme Court affirmed in part and reversed in part and remanded the matter to the district court with instructions to send the case back to the PCA for *708 further proceedings. Reserve Mining Co. v. Minnesota Pollution Control Agency, 294 Minn. 300, 200 N.W.2d 142 (1972). These proceedings were held in abeyance by the PCA pending resolution of this lawsuit. United States v. Reserve Mining Co., (D.Minn. 5-72-Civ-19, unpublished memorandum and order of April 16, 1973.)[3]
Because Reserve mounted substantial, continuous legal challenges to WPC 15, the law does not authorize imposition of penalties for violations in the first category. Wadley S. Ry. v. Georgia, 235 U.S. 651, 35 S.Ct. 214, 59 L.Ed. 405 (1915), United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir. 1971). See also Duquesne Light Co. v. Environmental Protection Agency, 481 F.2d 1 (3d Cir. 1973). Cf. Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973).
Although previous opinions in this case indicate that Reserve, from time to time, has violated other pollution control laws and regulations, the findings of fact and conclusions of law do not support imposition of penalties for violations in the second category. The findings were made in the context of plaintiffs' request for injunctive relief, the primary remedy sought in this lawsuit, and therefore do not indicate the nature and time of each violation or whether the state was damaged. The claim that each of the violations in the second category occurred daily is not supported by the record. It also should be observed that some of these violations, although not insignificant, are of a lesser magnitude not the kind of acts which normally justify imposition of penalties.
The third category of violations, the daily dumping of approximately 67,000 tons of carcinogenic waste into Lake Superior polluting public water supplies in violation of its state discharge permits is, by far, Reserve's most serious offense. Despite this, Minnesota questions its authority, based on the present state of the record, to claim penalties under the statute for Reserve's violations of state discharge permits. Oral argument, April 15, 1976, Tr. at 46 et seq. However, Minnesota's complaint as amended does allege violations of Reserve's state discharge permits and asks for civil penalties for all unlawful discharges. The trial court's findings of fact and conclusions of law establish without question that Reserve violated its state permits. United States v. Reserve Mining Company, 380 F.Supp. 11, 58 (D.Minn.1974).
In 1947 Reserve obtained from two state agencies, identical permits authorizing it to discharge tailings into Lake Superior. Subsection (d) of those permits prohibits discharges which
result in any material clouding or discoloration of the water at the surface outside of [the specified discharge] zone . . . nor shall such tailings be discharged so as to result in any material adverse effects on . . . public water supplies . . ..
The district court concluded that "the terms of the permits are being violated" because
[t]he discharge causes discoloration of the surface water outside of the zone of discharge, causes an increase in turbidity, and adversely affects the public water supplies of several communities resulting in unlawful pollution of the lake. Id. at 59.
The court of appeals agreed, stating that:
The record shows that Reserve is discharging a substance into Lake Superior waters which under an acceptable but unproved medical theory may be considered as carcinogenic. [T]his discharge gives rise to reasonable medical concern over the public health. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 529 (8th Cir. 1975).
Clearly, these findings justify the conclusion that Reserve violated its discharge *709 permits.[4] The trial court has determined that Reserve was in violation of its state discharge permits every day during the May 20, 1973 to April 20, 1974 period. United States v. Reserve Mining Co., 380 F.Supp. 11, 48 (D.Minn.1974).
Minn.Stat. § 115.45 (1974) requires Reserve to comply with the terms of its state permits or be subject to the penalties authorized by Minn.Stat. § 115.071 subd. 3 (1974). Therefore, because Reserve has violated its permits, the only remaining issue is the amount of the penalty.
In making this determination, the court is aware that, as a result of these discharges, defendants are liable for the costs, expected to be approximately six million dollars, of supplying clean water to the affected communities. In addition, the injunction resulting from this litigation will compel Reserve to either cease operations or expend substantial sums, estimated at over three hundred million dollars, to develop an alternative means of disposing of production wastes.
It is not disputed that Reserve, by supplying needed jobs and services, has revitalized the economy of Northeastern Minnesota and, by adding to the supply of domestically produced raw iron, has contributed to the economy of the entire country. But similar contributions have been made by other corporations while complying with applicable pollution control laws and regulations.
It should be appreciated that Reserve did not set out to spoil the air and water or cause inconvenience to or apprehension among residents of the area. It launched its business venture with the encouragement, even the importuning, of all segments of government and society. But in this business venture, the record shows it returned very substantial profits to its corporate owner-parents, Republic and Armco. United States v. Reserve Mining Co., 380 F.Supp. 11, 19, 59-64 (D.Minn.1974). It is reasonable to conclude that some of those profits are attributable to operations made less costly by discharging tailings in Lake Superior rather than on land, as is done by its competitors. Id. at 87. And, as is discussed later herein, the record shows that Reserve, particularly through its Vice President Haley, frustrated the court in prompt resolution of the controversy by violation of court rules and orders and thus prolonged the status quo.
While the daily discharge of 67,000 tons of tailings into Lake Superior is shocking in these days of improved environmental awareness, those discharges were expressly authorized in 1947 by the State of Minnesota. Hindsight tells us that was a mistake, but the gravity of it has not yet been determined. The court of appeals held that Reserve's discharges have not yet been found to be harmful to the public health and that the danger is potential, not imminent. The court of appeals found that Reserve need not terminate its operations but directed that preventive and precautionary steps be taken. Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 500 (8th Cir. 1975). They have been taken. So while the record shows violations of the permits, it has not been shown, and in the view of the court of appeals it is not likely it can be shown, that the past violations have caused actual harm to the public health. Id.
Upon consideration of all the factors and pursuant to authority of Minn.Stat. *710 § 115.071 subd. 3 (1974), the court imposes on defendants a penalty of $2,500.00 per day for violations of the terms of Reserve's state discharge permits. The penalty must be limited to the period between enactment of the penalty statute, May 20, 1973, and the date the trial concluded and the injunction issued, April 20, 1974 a period of 335 days.[5] The court of appeals vacated the shutdown order on April 22, 1974 and subsequently permitted the continuing discharge until resolution of the issue as to an appropriate on-land disposal site. Thus, the court cannot assess penalties for the period of discharge before the penalty statute was enacted or for the period after the injunction was issued because continued operation and discharge to the present specifically has been permitted by the court of appeals.
In summary, the court concludes that Minnesota's claims for penalties based on violations of pollution control laws and regulations in the first two categories is without merit but the findings as to Reserve's permit violations require the imposition of penalties upon defendants of $2,500.00 per day for 335 days.
SANCTIONS FOR BAD FAITH CONDUCT AND FAILURE TO MAKE DISCOVERY
One of the primary issues in this lawsuit was whether Reserve would be forced out of business if ordered to modify its discharge methods. It was plaintiffs' position from the beginning that Reserve had the ability to implement an on-land disposal system while Reserve maintained that this was economically and technologically impossible. The trial court determined that Reserve's position was taken in bad faith and made extensive findings concerning Reserve's[6] misconduct during this phase of the lawsuit, United States v. Reserve Mining Co., 380 F.Supp. 11, 18-20, 64-69, 84-85 (D.Minn.1974) summarized at 84-85:
1) Reserve Mining Company represented to this Court that its underwater disposal system was a feasible alternative to the present mode of discharge when in fact the plan had been rejected as technically and economically infeasible.
2) Reserve Mining Company represented to this Court that it was technologically and economically infeasible for them to dispose of their tailings on land, when in fact their own documents indicated that such was not the case.
3) Reserve Mining Company withheld existing documents as to their plans and concepts for on land disposal systems in violation of plaintiffs' discovery requests and this Court's Order.
The trial court found that these actions were taken for the purpose of delaying final resolution of the dispute and resulted in substantial delay, waste of time and unnecessary expense to plaintiffs. Id. at 18, 64, 85. Plaintiffs move under Fed.R.Civ.P. 37(b)(d), 45(f) and 54(d) to recover all litigation expenses, estimated to be $721,428.81, as a sanction for Reserve's misconduct.
The record shows the misconduct began when Reserve did not truthfully and fully respond to plaintiffs' interrogatories submitted pursuant to Fed.R.Civ.P 33, requesting that Reserve list all studies by employees or consultants concerning alternative methods of production and discharge. Because Reserve withdrew its objections to these interrogatories and agreed to the discovery order entered on December 12, 1972, it was obligated to answer the questions fully and truthfully. When the answers were filed December 15, 1972, Reserve failed to list numerous studies relating to on-land disposal sites. As additional studies became available, Reserve failed to supplement these answers in a timely fashion as required by the discovery order of December 12 and Fed.R.Civ.P. 26(e).[7] Nor were *711 the documents produced as they should have been pursuant to subpoena duces tecum commanding Reserve Vice President Haley to bring all such documents to his deposition in January of 1973. Concealment of these essential documents was continued in other depositions as well. In addition, the documents were not produced in response to the trial judge's request that Reserve come forward with its best plan for on-land disposal. Id. at 65-69.
In an attempt to explain why the documents were not turned over or identified in response to plaintiffs' first wave of interrogatories, or in compliance with subpoenas, Reserve argues that plaintiffs did not ask for studies relating to on-land disposal. Ignoring the clear language of the interrogatories and the subpoenas, Reserve relies on certain statements made in April of 1973 by Mr. Hills, counsel for the United States. These statements are taken out of context, do not address the interrogatories at issue, and were made several weeks after Haley's deposition and Reserve's inadequate answers.
In addition, Reserve now maintains that the documents in question need not have been produced since they were protected by one or more of the following legal theories:
1. attorney-client privilege,
2. work product,
3. trade secret,
4. offer of compromise.
These claims appear to be no more than a belated rationalization for the unjustified refusal to identify and turn the documents over to plaintiffs. Even assuming that the studies qualified for protection under one or more of the above theories, Reserve's failure to identify the documents and assert the appropriate objection before the trial judge, precludes it from relying on these theories now. Fed.R.Civ.P. 37(d). Reserve did not have the unilateral right to determine which documents were protected and consequently not reveal the existence of those documents. The pretrial order of December 12, 1972 provides that documents prepared "by a lawyer actively engaged in legal duties in anticipation of litigation or for trial need not be identified," but this provision was not applicable to the hundreds of documents prepared by defendants' engineers and consultants and not identified.
If Reserve had validly asserted the various objections in a timely fashion, it is unlikely that any of them would have been meritorious. Reserve does not adequately explain how the privilege that attaches to confidential communications between an attorney and client would protect engineering studies, many of which were prepared by independent consultants and transmitted to Reserve, Armco, and Republic, not to Reserve's attorneys. Similarly, it is highly unlikely that the work product rule would have ultimately shielded these documents from plaintiffs. Even if the documents could qualify for some protection under Fed.R.Civ.P. 26(b)(3), to the extent that they do not represent mental impressions, conclusions, opinions, or legal theories of the attorneys or other representatives, they would have been discoverable upon a showing of necessity.
Portions of the studies might have been protected by a trade secret "privilege", as were other matters in the case relating to Reserve's secret processes used in the production of taconite pellets. However, under no circumstances could this trade secret exemption for processes extend to all of these documents, many of which related to physical facts such as size and location of dams and tailings basins. Those few documents relating to secret processes, if involving a genuine trade secret, could have been protected if Reserve had moved for a protective order.
Finally, the claim that the documents were part of an offer of compromise is frivolous. Many of the documents were *712 never included in a compromise offer. Accepting this argument would mean that reserve could shield all documents relating to the economic and technological feasibility of alternative discharge systems because at some latter date they might be used in compromise negotiations. This, obviously, is not the law. The purpose for the privilege surrounding offers of compromise is to encourage free and frank discussion with a view toward settling the dispute. It is not designed to shield otherwise discoverable documents, merely because these documents represent factual matters that might be or are incorporated in a settlement proposal. See e. g., NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969); United States v. Tuschman, 405 F.2d 688 (6th Cir. 1969); Fed.R.Ev. 408.
The court is satisfied that each of the defenses asserted is without merit and the failure to identify and produce the documents was not substantially justified.
Reserve contended both before and during trial that the only feasible alternative method of disposal was by means of a conduit transporting wastes to the floor of the lake. This contention thwarted all settlement efforts and made final resolution of the issues presented more difficult. United States v. Reserve Mining Co., 380 F.Supp. 11, 65, 85 (D.Minn.1974). The findings of fact reflect that this contention was not asserted in good faith. Id. at 18, 19, 64-67. In March of 1974 when officers of Armco and Republic were deposed, plaintiffs and the trial judge discovered for the first time that Reserve had withheld hundreds of documents dealing with alternative methods of disposal. Id. In addition, the documents revealed that the deep piping system had been rejected by defendant's engineering task force long before as being technologically impossible and economically infeasible. When asked about the undisclosed rejection of the deep piping concept, Reserve attempts to characterize this "rejection" as an interim engineering report from an engineer at Armco, of which the Reserve employees in Minnesota had no knowledge. The document speaks for itself. U.S.Ex. 430. It is entitled "Reserve Mining CompanyTailings DisposalAlternate Studies Final Recommendation." It includes a statement from the Engineering Task Force which recommends, for economic and technological reasons, that the underwater reef disposal system not be pursued any further. The findings of fact indicate that Reserve Vice President Haley was the chairman of the Engineering Task Force. Id. at 65.
There is ample authority in the statutes, rules and decisions to impose sanctions.[8] The Supreme Court recently reviewed the question of when attorneys' fees may be assessed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141, 154 (1975):
[A] court may assess attorneys' fees for the "willful disobedience of a court order . . . as part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428 [43 S.Ct. 458, 465-466, 67 L.Ed. 719] (1923)." Fleischmann v. Distilling Corp. Maier Brewing Co., . . . 386 U.S. [714, 87 S.Ct. 1404, at 1407, 18 L.Ed.2d 475] at 718, or when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . .." F. D. Rich Co. [F. D. Rich Co. v. U. S. for Use of Indus. Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703], 417 U.S. at 129, (citing Vaughan v. Atkinson, 369 U.S. 527, [82 S.Ct. 997, 8 L.Ed.2d 88] (1962)) . . ..
In the instant case the trial judge found that Reserve failed to divulge materials to plaintiffs during discovery and to the court in direct violation of the court's orders. As has already been noted, the trial judge concluded that the concealment of the materials was part of a course of conduct adopted by Reserve in bad faith "for the sole purpose *713 of delaying the final resolution of the controversy," United States v. Reserve Mining Co., 380 F.Supp. 11, 64 (D.Minn.1974). Such conduct justifies the award of attorneys' fees and other expenses as a sanction. Id. and Fed.R.Civ.P. 37(b) and (d), 45(f), 54(d).
However, the record does not support sanctions measured by an award of all litigation expenses as urged by plaintiffs. Minnesota agrees there was no misconduct by defendants during that part of the lawsuit devoted to the public health claims. Reserve Mining Co. v. United States, 498 F.2d 1073, 1085, n. 13 (8th Cir. 1974).
However, unwinding this nine-month trial with its exhaustive pretrial discovery proceedings and companion state and federal administrative proceedings to determine with exactness what expenses are attributable to one or another phase of the lawsuit or what percentage of the expense was caused by defendant's misconduct is a practical impossibility. At oral argument, counsel could not suggest a feasible method of doing so. Plaintiffs maintain that if they had known prior to trial that defendants' engineers could develop a feasible alternative disposal site, much, if not all, of the trial could have been avoided. Defendants dispute this.
Faced with this record, we must make an apportionment as best we can. It is the court's best estimate, based on all the files and records including the suggested itemized fees and expenses submitted by plaintiffs and the court's familiarity with attorneys' fees, that the sum of $200,000.00 will fairly reimburse plaintiffs for their expenses and reasonably compensate them for attorneys' fees, and with that as a measure, the court assesses sanctions against Reserve of $200,000.00 to be apportioned by plaintiffs among themselves.
DULUTH'S MOTION FOR REIMBURSEMENT FOR INTERIM WATER EXPENSES
The city of Duluth seeks reimbursement in the amount of $22,920.00 for expenses incurred in providing its residents with clean drinking water, free from the asbestos contamination caused by defendant's discharge. Along with a similar motion by the United States, this motion was argued on February 18, 1976, resulting in a determination that the defendants are liable for all expenses incurred by the United States in providing filtered water to North Shore communities. United States v. Reserve Mining Co., 408 F.Supp. 1212 (D.Minn.1976). The court requested additional briefs from the parties with respect to Duluth's legal basis for seeking similar relief. Briefs have been lodged.
It has been determined that defendants' discharge into the water violates various Minnesota statutes, regulations and permits. These violations have resulted in a potential health threat necessitating a temporary water filtration program, causing expense to the city of Duluth. As an injured party, Duluth has standing to seek relief for these violations under Minn.Stat. 116B.03 (1974).[9] Based on these findings and the rationale set forth in the Order of February 21, 1976, id., the court concludes that defendants are liable for expenses reasonably incurred by the city of Duluth in providing its residents with clean water on a temporary basis. Absent agreement by the parties as to the exact amount, the court will determine it on motion.
SUMMARY
We determine that:
1. Defendants violated the terms of the state granted water discharge permits daily between May 20, 1973 and April 20, 1974 a *714 period of 335 days and are assessed penalties of $2,500.00 per day for a total of $837,500.00.
2. Reserve violated court rules and orders as to discovery and is assessed sanctions of $200,000.00.
3. The city of Duluth is entitled to be reimbursed in the approximate sum of $22,920.00 for furnishing interim clean water facilities and supplies to its residents.
The court has now determined all pending issues properly within its province. Remaining for resolution is agreement between the State of Minnesota and Reserve Mining Company as to an appropriate onland taconite waste disposal site. Prompt accord on this issue hopefully will signal the end of this long pending, and often acrimonious, controversy so that Minnesota and its people can return to a normal and productive society with the environment preserved and public health protected.
NOTES
[1] The effective date of the penalty statute was May 20, 1973 and the trial court enjoined further violations by Reserve on April 20, 1974. This is a period of 335 days.
[2] Minnesota also claims penalties for violations of WPC 26, the applicable portions of which are identical to the limitations established by WPC 15. Reserve filed an appeal in state court contesting the validity and applicability of WPC 26 which apparently has not been adjudicated. Therefore, the court's treatment of Minnesota's claim for penalties for violations of WPC 15 is applicable to the claims for violations of WPC 26.
[3] Minnesota has conceded that Reserve has consistently challenged the validity and applicability of WPC 15. Oral argument, April 15, 1976, Tr. 51.
[4] Reserve fully understood the responsibility it assumed when it applied for permits to discharge into Lake Superior. Then Minnesota Conservation Commissioner Chester S. Wilson warned Reserve of this risk at a public hearing on June 17, 1947 in an exchange with H. S. Taylor, representing Reserve:
Chairman Wilson: And you understand that if the permit should be granted and the discharge from the water from this plant should result in damaging consequences not contemplated, that the responsibility would be on your company or on the applicant company to take whatever action might be necessary to remedy those conditions.
Mr. Taylor: Why yes, we can stand that risk in any event we have to take certain risks. (T. p. 27)
Later at the hearing, Mr. Taylor said:
This company will be a responsible company and we will recognize our legal liabilities. (T. pp. 30-32)
[5] Minnesota does not claim penalties for violations which may have occurred after this date.
[6] The bad faith conduct occurred prior to the formal entry of Armco and Republic into the case.
[7] For example, the consulting firm of Ripley, Klohn and Leonoff delivered their proposal for disposal in the Palisades Creek area on January 15, 1973. This study was among the several found in the files of Armco and Republic in March of 1974. Subsequent to plaintiffs' discovery of these documents in the files of Armco and Republic, Reserve filed a meaningless supplemental response listing these same documents.
[8] Reserve does not dispute the court's authority to impose sanctions. Transcript of oral argument, April 15, 1976, p. 112.
[9] The court rejects defendants' claim that Duluth's complaint was not sufficient to permit recovery based on violations of Minnesota statutes and regulations and permits. The factual allegations in the complaint are sufficiently broad to permit recovery. Furthermore, the complaints of other parties to the law suit specifically allege the violations in question, these issues were fully litigated, and decided adversely to defendants. Defendants can show no prejudice in permitting Duluth to assert these identical legal theories.
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387 F.3d 139
UNITED STATES of America, Appellee,v.Donovan SCOTT, Defendant-Appellant.
No. 02-1627.
United States Court of Appeals, Second Circuit.
Argued: September 11, 2003.
Decided: October 21, 2004.
Appeal from the United States District Court for the District of Connecticut, Ellen Bree Burns, J.
Jeffrey A. Meyer, Assistant U.S. Attorney, New Haven, CT (Kevin J. O'Connor, U.S. Attorney, Deborah R. Slater, Assistant U.S. Attorney, and Adam I. Muchmore, law student intern, on the brief), for Appellee.
Thomas G. Dennis, Federal Public Defender, Hartford, CT, for Appellant.
Before: JACOBS, LEVAL, and POOLER, Circuit Judges.
LEVAL, Circuit Judge.
1
Defendant-appellant Donovan Scott appeals from a judgment of the United States District Court for the District of Connecticut (Ellen Bree Burns, J.,) convicting him, pursuant to his guilty plea, of being found unlawfully in the United States after having previously been deported, in violation of 8 U.S.C. § 1326(a), and sentencing him to a term of imprisonment of 70 months. In this appeal, Scott contends that the district court erred in adding Criminal History points pursuant to Section 4A1.1(d) of the United States Sentencing Guidelines ("U.S.S.G.") and claims that the district court improperly declined to grant a downward departure. We affirm the judgment of the district court, finding that, on the facts of this case, the district court properly increased Scott's Criminal History Category under § 4A1.1(d). As for the court's refusal to depart downward, we find no reason to believe that the court misunderstood its authority; to the extent the appeal challenges the court's exercise of discretion in declining to depart, we are without jurisdiction to consider it. See 18 U.S.C. § 3742
BACKGROUND
2
Scott is a native of Jamaica, who moved to the United States in 1985. He accumulated five criminal convictions in the United States prior to this one. In 1990, Scott was convicted by a Connecticut state court of possession of a pistol without a permit and was sentenced to one year of imprisonment. Later the same year, he was convicted in a California state court of conspiracy to possess cocaine for sale and was sentenced to a two-year term of imprisonment. In 1992, Scott was convicted by a New York state court of second-degree obstruction of a governmental official and sentenced to 90 days imprisonment In 1995, he was convicted by a New York state court of attempted sale of a controlled substance (cocaine) in the third-degree, for which he was sentenced to a suspended term of one to three years imprisonment and released on a two-year term of parole.
3
In light of this criminal history, the Immigration and Naturalization Service ("INS") initiated deportation proceedings. Scott was deported to Jamaica on October 28, 1996. Approximately two months after his deportation, however, he illegally reentered the United States, where he remained until the present proceeding.
4
In 2001, after his reentry, Scott was convicted in Connecticut state court of one count of possession of narcotics and one count of reckless endangerment of minor children; he was sentenced on November 21, 2001 to concurrent suspended terms of one and three years imprisonment, placed on probation for two years, and released. Approximately a month later, on or about December 17, 2001, the INS learned of Scott's presence in the United States. The INS located the defendant on or about February 28, 2002 in Bridgeport, Connecticut.
5
Scott was then indicted on the present charge—being found in the United States on February 28, 2002 after having been deported, in violation of 8 U.S.C. § 1326(a). Scott entered a plea of guilty. At sentencing, the parties disputed the calculation of Scott's Criminal History score—in particular whether two Criminal History points should be added pursuant to U.S.S.G. § 4A1.1(d) for Scott's commission of the offense while on probation. The defendant argued that the adjustment should not apply and that, if it did apply, the court should grant an offsetting downward departure. The district court did add two Criminal History points under U.S.S.G. § 4A1.1(d). It implicitly declined Scott's application for downward departure, by imposing sentence without making reference to it.
DISCUSSION
I. Enhancement under § 4A1.1(d)
6
Scott's first argument on appeal is that, in a prosecution pursuant to 8 U.S.C. § 1326(a) for the re-entry of a removed alien, the two-point Criminal History enhancement of U.S.S.G. § 4A1.1(d) should not be applied to a defendant who was "found" to be illegally in the United States while serving the prior criminal sentence. U.S.S.G. § 4A1.1(d) prescribes an increase of two points to the defendant's Criminal History score "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." Because his challenge is to the district court's legal interpretation of a sentencing guideline, our review is de novo. United States v. Simpson, 319 F.3d 81, 85 (2d Cir.2002).
7
Scott's contention is that the enhancement of sentence imposed by U.S.S.G. § 4A1.1(d) should apply only where the defendant committed some new criminal act while under a prior criminal justice sentence and not where his new conviction merely results from the new detection by law enforcement of his previously existing criminal status. He contends that his own criminal activity represented by the current offense (his illegal reentry after departure) occurred prior to the Connecticut conviction, notwithstanding that he was not found until he was "under [the Connecticut] criminal justice sentence." U.S.S.G. § 4A1.1(d). For this reason, he contends that the sentence enhancement of § 4A1.1(d) should not apply. He argues that precisely because he was under a criminal sentence, he could not leave the United States and thus avoid committing the subsequent offense of being found illegally in the United States. In such circumstances, he contends, the defendant has no opportunity while under a criminal sentence to avoid committing the subsequent offense of being found illegally in the United States.
8
The government contends that even if the defendant is powerless while under a criminal sentence to avoid the occurrence of the second offense, he had the power to avoid the predicament either by not illegally reentering the United States, or by departing prior to committing the prior offense. Other circuits that have considered this issue have concluded that an alien who is found in the United States while serving a separate criminal justice sentence should receive a two-point increase under § 4A1.1(d). See United States v. Rosales-Garay, 283 F.3d 1200, 1202-03 (10th Cir.), cert. denied, 536 U.S. 934, 122 S.Ct. 2612, 153 L.Ed.2d 797 (2002); United States v. Coeur, 196 F.3d 1344, 1345-46 (11th Cir.1999); United States v. Cuevas, 75 F.3d 778, 784 (1st Cir.1996); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.), cert denied, 517 U.S. 1228, 116 S.Ct. 1865, 134 L.Ed.2d 963 (1996).
9
Whatever answer we might give if the defendant were truly without ability to avoid the commission of the subsequent immigration offense once under the prior criminal justice sentence, these are not the facts of Scott's case. In this case, Scott did not lack ability to control being found in the United States after imposition of his Connecticut sentence. The sentence of the Connecticut court placed Scott on probation at the end of November, 2001. He was not found by the INS until February 28, 2002, three months later. During that three month period, Scott had ample opportunity to leave the United States, so as to avoid being found illegally in this country.
10
At oral argument, Scott's counsel argued that departure from the United States might have violated the terms of his Connecticut probation. Assuming that Scott's conditions of probation required that he remain within the State of Connecticut, we find this argument unpersuasive. Such a restriction is not immutable. Scott could have applied to the Connecticut court to allow him to depart from the United States. Had the application been granted, he might, without violating the Connecticut court's orders, have avoided being found in the United States while under the Connecticut sentence. He made no such application.
11
We recognize that Scott might have been disinclined to make such a request because doing so might have increased the likelihood of his being found by the INS, convicted for violating § 1326(a), and deported. Nonetheless, although the choice may have been difficult, it was Scott's choice not to seek permission to leave the United States. We therefore find that Scott's legal argument has no application to his case. His is not a case of inability to terminate his illegal presence in the United States while under a prior criminal sentence.
12
We conclude that the district court properly added two points to Scott's sentence under U.S.S.G. § 4A1.1(d).
II. Downward Departure
13
Scott contends his sentence should be vacated and remanded for reconsideration on the ground that the court did not understand its authority to depart downward. A district court's decision to deny a defendant's application for downward departure from the Guidelines range is within the court's broad discretion and rarely reviewed on appeal. See United States v. Silleg, 311 F.3d 557, 561 (2d Cir.2002). There are exceptions "where the defendant shows that a violation of law occurred, that the Guidelines were misapplied, or that the refusal to depart was based on the sentencing court's mistaken conclusion that it lacked the authority to depart." United States v. Kalust, 249 F.3d 106, 110 (2d Cir.2001) (quotation omitted).
14
Defense counsel raised Scott's request for a departure at the beginning of the sentencing hearing, and the government responded. The court imposed a sentence that did not include a downward departure without speaking on the question. Scott contends the court's silence on the issue supports the inference that the court failed to understand its authority to depart.
15
A district court is not obliged to give reasons for refusing to depart. See United States v. Lawal, 17 F.3d 560, 563 (2d Cir.1994) ("no statement of reasons is required if the district court refuses to downwardly depart at all"). Furthermore, in order to prevail in showing that the sentencing judge's denial of departure was based on a "mistaken conclusion that it lacked the authority to depart," see Kalust, 249 F.3d at 110, a defendant must point to "clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority." United States v. Gonzalez, 281 F.3d 38, 42 (2d Cir.2002) (quotation omitted). A district court's silence concerning its refusal to depart downward, generally, does not support an inference that the district court misapprehended its scope of authority. See United States v. Moore, 54 F.3d 92, 102 (2d Cir. 1995). We have no reason to doubt that the court understood its legal authority.
CONCLUSION
16
The judgment of the district court is AFFIRMED.
17
The mandate in this case will be held pending the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 11, ___ L.Ed.2d ___, 2004 WL 1713654 (U.S. cert. granted Aug. 2, 2004) (mem.), and United States v. Fanfan, ___ U.S. ___, 125 S.Ct. 12, ___ L.Ed.2d ___, 2004 WL 1713655 (U.S. cert. granted Aug. 2, 2004) (mem.). Should any party believe there is a special need for the District Court to exercise jurisdiction prior to the Supreme Court's decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant's sentence until after the Supreme Court's decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court's decision to file supplemental petitions for rehearing in light of Booker and Fanfan.
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926 F.2d 452
21 Bankr.Ct.Dec. 733, Bankr. L. Rep. P 73,862
In re Larry MODICUE and Wanda Nelson Modicue, Debtors.FRIENDLY FINANCE SERVICE MID-CITY, INC., Appellant,v.Larry MODICUE and Wanda Modicue, Appellees.
No. 90-4768Summary Calendar.
United States Court of Appeals,Fifth Circuit.
March 15, 1991.
Louis D. Smith, Hayes, Harkey, Smith, Cascio & Mullens, Monroe, La., for appellant.
Catherine L. Stagg, Monroe, La., for appellees.
Appeal from the United States District Court for the Western District of Louisiana.
Before CLARK, Chief Judge, POLITZ and DAVIS, Circuit Judges.
PER CURIAM:
I.
1
Friendly Finance (Friendly) appeals the district court's judgment affirming the bankruptcy court's determination that only the value of the collateral unlawfully sold by Mr. and Mrs. Modicue, not their total debt to Friendly, was non-dischargeable under 11 U.S.C. Sec. 523(c). We affirm.
II.
2
Friendly made a loan to Mr. and Mrs. Modicue for which they executed a promissory note and a chattel mortgage securing the note. The mortgaged items, although worth $1,300.00 at the time the mortgage was executed, were sold without Friendly's knowledge or permission at a rummage sale for approximately $120.00. At the time the Modicues filed for protection under Chapter 7 of the Bankruptcy Code, the balance on the note was $3,590.55.
3
Friendly instituted this proceeding in the bankruptcy court, under 11 U.S.C. Sec. 523(c), alleging that the Modicues had "willfully and maliciously" injured Friendly by the unauthorized sale of the collateral and the debt should be excepted from discharge under Sec. 523(a)(6). The bankruptcy court agreed and determined the non-dischargeable injury to be $865.00 with interest which represented the fair-market value of the property at the time of the wrongful sale.
4
Dissatisfied with the bankruptcy court's determination, Friendly appealed to the district court. Friendly raised two alternative issues to the district court. First, Friendly claimed that the entire amount of the debt should be non-dischargeable as a result of the Modicue's misconduct. In the alternative, Friendly claimed that the proper measure of non-dischargeability should be the value of the collateral at the time the mortgage was executed rather than at the time of the wrongful sale. The district court rejected both of Friendly's claims, determined that the bankruptcy court's valuation was not clearly erroneous and affirmed the bankruptcy court's judgment. Friendly appeals.
III.
5
Friendly raises here the same two issues rejected by the district court. Both arguments are without merit.
6
We review the bankruptcy and district court's findings of fact under the clearly erroneous standard while conclusions of law are reviewed de novo. Mitsubishi Int'l Corp. v. Clark Pipe & Supply Co., Inc., 735 F.2d 160, 163 (5th Cir.1984).
7
Section 523(a)(6) excepts liability for a "willful and malicious injury by the debtor to another entity or the property of another entity" from the general discharge of debts accorded the debtor under Sec. 727 of the Bankruptcy Code. This encompasses the wrongful sale or conversion of encumbered property by the debtor. See, In re Howard, 6 B.R. 256 (Bankr.M.D.Fla.1980); Collier on Bankruptcy 523.16. In this case, the Modicues have not appealed the bankruptcy court's determination that their sale of the mortgaged property falls within the purview of Sec. 523(a)(6). Thus, the only issue before this court is the appropriate measure of the exception to dischargeability under Sec. 523(a)(6).
8
Section 523(a)(6) is based on tort principles rather than contract. In re Howard, 6 B.R. at 258, Collier on Bankruptcy 523.16. It is designed to compensate the injured party for the injury suffered while not allowing the debtor to escape liability for a "willfull and malicious" injury by resort to the bankruptcy laws. Thus, the appropriate measure for non-dischargeability under Sec. 523(a)(6) is an amount equal to the injury caused by the debtor rather than any other sum owed by the debtor on a contractual basis. In this case, the injury to Friendly is the loss of the collateral securing the Modicue's indebtedness to which Friendly would have had priority upon liquidation of the bankruptcy estate. Therefore, under Sec. 523(a)(6), Friendly is entitled to the value of the collateral denied it by the Modicue's wrongful actions. Any other construction of Sec. 523(a)(6) would allow Friendly, an under-secured creditor, to improve its position in the bankruptcy setting because of the debtor's wrongful conduct. Such a result is contrary to the equities and policy goals embodied in the Bankruptcy Code. See, In re Howard, 6 B.R. at 258.
9
Friendly also claims that the appropriate measure of the injury caused by the wrongful sale of the property is the value of the property at the time it was mortgaged rather than the depreciated value of the property at the time it was sold by the debtor. For the same reasons enumerated above, we reject this contention. The bankruptcy court and the district court correctly concluded that the appropriate measure of the non-dischargeable injury is the fair value at the time the property was sold. As the district court reasoned, any other measure would put Friendly "in a better position because of defendant's misconduct than it would otherwise have enjoyed, [Friendly's] actual loss is the value of the collateral had at the time of the wrongful sale." See First State Bank of Alsip v. Iaquinta, 98 B.R. 919 (Bankr.N.D.Ill.1989).IV.
The judgment of the district court is
10
AFFIRMED.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5036
_____________________________
LUCIOUS M. JACKSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.
January 7, 2019
PER CURIAM.
AFFIRMED.
B.L. THOMAS, C.J., and ROBERTS and OSTERHAUS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Lucious M. Jackson, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
2
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358 U.S. 1 (1958)
COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL.
v.
AARON ET AL.
No. 1.
Supreme Court of United States.
Argued September 11, 1958.
Decided September 12, 1958.
Opinion announced September 29, 1958.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.[]*3 Richard C. Butler argued the cause for petitioners. With him on the brief were A. F. House and, by special leave of Court, John H. Haley, pro hac vice.
Thurgood Marshall argued the cause for respondents. With him on the brief were Wiley A. Branton, William Coleman, Jr., Jack Greenberg and Louis H. Pollak.
Solicitor General Rankin, at the invitation of the Court, post, p. 27, argued the cause for the United States, as amicus curiae, urging that the relief sought by respondents should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer.
*4 Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U. S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
The case was argued before us on September 11, 1958. On the following day we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, 257 F. 2d 33, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F. Supp. 13. The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board's court-approved desegregation program. In order that the School Board *5 might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date.[*] This opinion of all of the members of the Court embodies those views.
The following are the facts and circumstances so far as necessary to show how the legal questions are presented.
On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education, *6 347 U. S. 483. The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, 349 U. S. 294. In the formulation of that decree the Court recognized that good faith compliance with the principles declared in Brown might in some situations "call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision." Id., at 300. The Court went on to state:
"Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." 349 U. S., at 300-301.
*7 Under such circumstances, the District Courts were directed to require "a prompt and reasonable start toward full compliance," and to take such action as was necessary to bring about the end of racial segregation in the public schools "with all deliberate speed." Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.
On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled "Supreme Court DecisionSegregation in Public Schools." In this statement the Board recognized that
"It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed."
*8 Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that "a large majority of the residents" of Little Rock were of "the belief . . . that the Plan, although objectionable in principle," from the point of view of those supporting segregated schools, "was still the best for the interests of all pupils in the District."
Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board's plan, Aaron v. Cooper, 143 F. Supp. 855. The Court of Appeals affirmed. 243 F. 2d 361. Review of that judgment was not sought here.
While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose "in every Constitutional manner the Un-constitutional *9 desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court," Ark. Const., Amend. 44, and, through the initiative, a pupil assignment law, Ark. Stat. 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark. Stat. 80-1525, and a law establishing a State Sovereignty Commission, Ark. Stat. 6-801 to 6-824, were enacted by the General Assembly in February 1957.
The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken.
On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by the school authorities, and was entirely unheralded. The findings were these:
"Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate *10 steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." Aaron v. Cooper, 156 F. Supp. 220, 225.
The Board's petition for postponement in this proceeding states: "The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and from that date hostility to the Plan was increased and criticism of the officials of the [School] District has become more bitter and unrestrained." The Governor's action caused the School Board to request the Negro students on September 2 not to attend the high school "until the legal dilemma was solved." The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board's *11 request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.
On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard "acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students . . . from entering," as they continued to do every school day during the following three weeks. 156 F. Supp., at 225.
That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court's direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program.
Upon completion of the United States Attorney's investigation, he and the Attorney General of the United States, at the District Court's request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court's order. After hearings on the petition, the District Court found that the School Board's plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on September *12 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F. Supp. 220, affirmed, Faubus v. United States, 254 F. 2d 797. The National Guard was then withdrawn from the school.
The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F. Supp., at 16. On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.
We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn *13 and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of "chaos, bedlam and turmoil"; that there were "repeated incidents of more or less serious violence directed against the Negro students and their property"; that there was "tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters' parents, which inevitably had an adverse effect upon the educational program"; that a school official was threatened with violence; that a "serious financial burden" had been cast on the School District; that the education of the students had suffered "and under existing conditions will continue to suffer"; that the Board would continue to need "military assistance or its equivalent"; that the local police department would not be able "to detail enough men to afford the necessary protection"; and that the situation was "intolerable." 163 F. Supp., at 20-26.
The District Court's judgment was dated June 20, 1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. At the same time they filed a petition for certiorari in this Court asking us to review the District Court's judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. 357 U. S. 566. The Court of Appeals did not act on the petition for a stay, but, on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, 257 F. 2d 33. On August 21, 1958, the Court of Appeals stayed its mandate *14 to permit the School Board to petition this Court for certiorari. Pending the filing of the School Board's petition for certiorari, the Negro respondents, on August 23, 1958, applied to MR. JUSTICE WHITTAKER, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate and also to stay the District Court's judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, 357 U. S. 566, 567, we convened in Special Term on August 28, 1958, and heard oral argument on the respondents' motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals' judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents' application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board's petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11. 1958, post, p. 29, and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion, ante, p. 5.
In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the *15 Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue.
The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: "The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace."
One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board's good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board's legal position. Had Central High School been under the direct management of the State itself, it could hardly be suggested *16 that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult or impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.
The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: "It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Buchanan v. Warley, 245 U. S. 60, 81. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.
The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no *17 other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Ex parte Virginia, 100 U. S. 339, 347. Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U. S. 313; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230; Shelley v. Kraemer, 334 U. S. 1; or whatever the guise in which it is taken, see Derrington v. Plummer, 240 F. 2d 922; Department of Conservation and Development v. Tate, 231 F. 2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Smith v. Texas, 311 U. S. 128, 132.
What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
*18 Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a *19 power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U. S. 378, 397-398.
It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U. S. 497. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, *20 are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.
Concurring opinion of MR. JUSTICE FRANKFURTER.[*]
While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.
By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court's decree in Brown v. Board of Education, 349 U. S. 294. The Little Rock School Board had embarked on an educational effort "to obtain public acceptance" of its plan. Thus the process of the community's accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted:
"14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had *21 frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." 156 F. Supp. 220, 225.
All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty.
The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one *22 of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board's and the State's constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.
We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State "must . . . yield to an authority that is paramount to the State." This language of command to a State is Mr. Justice Holmes', speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, *23 Mr. Justice Butler, and Mr. Justice Stone. Wisconsin v. Illinois, 281 U. S. 179, 197.
When defiance of law judicially pronounced was last sought to be justified before this Court, views were expressed which are now especially relevant:
"The historic phrase `a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. `A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
"But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. `Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this *24 Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be `as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for." United States v. United Mine Workers, 330 U. S. 258, 307-309 (concurring opinion).
The duty to abstain from resistance to "the supreme Law of the Land," U. S. Const., Art. VI ¶ 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is "the supreme Law of the Land." (See President Andrew Jackson's Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.), 610, 623.) Particularly is this so where the declaration of what "the supreme Law" commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the *25 merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.
The process of ending unconstitutional exclusion of pupils from the common school system"common" meaning shared alikesolely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence looseviolence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claimnor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.
For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two *26 lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board's request, on the basis of the circumstances that gave rise to it, for a suspension of the Board's non-segregation plan, would be but the beginning of a series of delays calculated to nullify this Court's adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools?
That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.
Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.
*27 AUGUST 28, 1958.
Miscellaneous Order.
No. 1, Misc. AARON ET AL. v. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. On application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate and for a stay of the order of the United States District Court for the Eastern District of Arkansas and for such other orders as petitioners may be entitled to. Argued August 28, 1958.
Having considered the oral arguments, the Court is in agreement with the view expressed by counsel for the respective parties and by the Solicitor General that petitioners' present application respecting the stay of the mandate of the Court of Appeals and of the order of the District Court of June 21, 1958, necessarily involves consideration of the merits of the Court of Appeals decision reversing the order of Judge Lemley. The Court is advised that the opening date of the High School will be September 15. In light of this, and representations made by counsel for the School Board as to the Board's plan for filing its petition for certiorari, the Court makes the following order:
1. The School Board's petition for certiorari may be filed not later than September 8, 1958.
2. The briefs of both parties on the merits may be filed not later than September 10, 1958.
3. The Solicitor General is invited to file a brief by September 10, 1958, and to present oral argument if he is so advised.
*28 4. The Rules of the Court requiring printing of the petition, briefs, and record are dispensed with.
5. Oral argument upon the petition for certiorari is set for September 11, 1958, at twelve o'clock noon.
6. Action on the petitioners' application addressed to the stay of the mandate of the Court of Appeals and to the stay of the order of the District Court of June 21, 1958, is deferred pending the disposition of the petition for certiorari duly filed in accordance with the foregoing schedule.
Thurgood Marshall argued the cause for petitioners. With him on the brief were Wiley A. Branton, Jack Greenberg and William Coleman, Jr. Richard C. Butler argued the cause for respondents. With him on the brief was A. F. House. Solicitor General Rankin, at the invitation of the Court, argued the cause for the United States, as amicus curiae, urging that the relief sought by petitioners should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer.
SEPTEMBER 4, 1958.
Dismissal Under Rule 60.
No. 116, October Term, 1958. AMERICAN BROADCASTING-PARAMOUNT THEATRES, INC., v. UNITED STATES. Appeal from the United States District Court for the Southern District of New York. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Albert C. Bickford for appellant. Oscar H. Davis, then Acting Solicitor General, for the United States. Reported below: 165 F. Supp. 643.
SEPTEMBER 11, 1958.
Miscellaneous Order.
No. 1, Misc. AARON ET AL. v. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, *29 INDEPENDENT SCHOOL DISTRICT, ET AL. On application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate and for a stay of the order of the United States District Court for the Eastern District of Arkansas and for such other orders as petitioners may be entitled to. Motion for leave to file brief of J. W. Fulbright, as amicus curiae, denied. Motion for leave to file brief of John Bradley Minnick, as amicus curiae, denied. Motion for leave to file brief of William Burrow, as amicus curiae, denied.
Certiorari Granted.
No. 1. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. v. AARON ET AL. On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Motion for leave to file brief of Arlington County Chapter, Defenders of State Sovereignty of Individual Liberties, as amicus curiae, denied. Motion for leave to file brief of James M. Burke, as amicus curiae, denied. Motion for leave to file suit for declaratory judgment in re Little Rock and for other relief denied. Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit granted. Richard C. Butler, A. F. House and, by special leave of the Court, John H. Haley, pro hac vice, for petitioners. Thurgood Marshall, Wiley A. Branton, William Coleman, Jr., Jack Greenberg and Louis H. Pollak for respondents. Solicitor General Rankin, appearing at the invitation of the Court, adhered to his brief filed in No. 1, Misc., August Special Term, 1958, urging that the relief sought by respondents should be granted. With him on this brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer. Reported below: 257 F. 2d 33.
*30 SEPTEMBER 12, 1958.
Dismissal Under Rule 60.
No. 38, Misc., October Term, 1958. BLOCH v. COMMISSIONER OF INTERNAL REVENUE. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Petitioner pro se. Solicitor General Rankin for respondent. Reported below: 254 F. 2d 277.
SEPTEMBER 17, 1958.
Dismissal Under Rule 60.
No. 87, October Term, 1958. ALLEN N. SPOONER & SONS, INC., ET AL. v. PORT OF NEW YORK AUTHORITY. On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Martin J. McHugh was on the stipulation for petitioners. With him on the petition was Thomas F. Daly. John M. Aherne was on the stipulation for respondent. Reported below: 253 F. 2d 584.
NOTES
[] NOTE: The per curiam opinion announced on September 12, 1958, and printed in a footnote, post, p. 5, applies not only to this case but also to No. 1, Misc., August Special Term, 1958, Aaron et al. v. Cooper et al., on application for vacation of order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate, for stay of order of the United States District Court for the Eastern District of Arkansas, and for such other orders as petitioners may be entitled to, argued August 28, 1958.
[*] The following was the Court's per curiam opinion:
"PER CURIAM.
"The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, 257 F. 2d 33, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course.
"It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F. 2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F. Supp. 13, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, see 143 F. Supp. 855, and September 3, 1957, enforcing the School Board's plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U. S. 483, 349 U. S. 294, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.
"The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas."
[*] [NOTE: This opinion was filed October 6, 1958.]
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FIFTH DIVISION
April 14, 2006
No. 1-05-1737
ROSE L. MANNING, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE DEPARTMENT OF EMPLOYMENT )
SECURITY, an Administrative Agency; )
BRENDA RUSSELL, Director of the )
Illinois Department of Employment Security; )
BOARD OF REVIEW OF THE ILLINOIS )
DEPARTMENT OF EMPLOYMENT )
SECURITY, an Administrative Agency; )
and, DRS. MORAN & MORAN, S.C., )
an Illinois Corporation and Employer, ) Honorable
) Alexander P. White,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff, Rose Manning, appeals from an order of the trial court affirming the
decision of the Board of Review of the Illinois Department of Employment Security
(Board), which denied plaintiff's claim for unemployment insurance benefits. On appeal
plaintiff contends that the Board erred in finding that she was discharged for misconduct
involving a hostile voice-mail message to her coworker. We affirm.
Plaintiff was employed by Drs. Moran & Moran, S.C., as a medical assistant from
October 7, 1998, to May 18, 2004, when she was discharged for leaving a hostile,
intimidating and vulgar message on a coworker's home voice-mail. Subsequently,
plaintiff sought unemployment insurance and a claims adjudicator denied her
unemployment benefits noting that plaintiff was discharged because of "unprofessional
conduct." Plaintiff filed an application for reconsideration of the claims adjudicator's
determination, and the claims adjudicator denied the application. Plaintiff appealed to
the Illinois Department of Employment Security (Department).
A referee for the Department held a telephone hearing at which plaintiff and Dr.
Michael Milani, who identified himself as a physician and also "one of the employers,"
testified that he became aware of plaintiff's misconduct because "[t]he other employees
[sic] that received the phone call brought to the attention of *** one of the *** nurses and
then the office manager who brought it to the physician's attention."
Milani testified that he met plaintiff on May 14, 2004, to question her about the
incident. Plaintiff told Milani that she relied on a coworker Tiffany Swanson to drive her
to work because she had lost her driver's license. She stated that on May 13, 2004,
Swanson left work without plaintiff in order to pick up her child. Later that night, plaintiff
called Swanson. An excerpt from plaintiff's message to Swanson was played during the
hearing.
"(inaudible) fucking word. That was very uncalled for
and it is very fucking childish for you to fuck off. Yes,
(inaudible) and you are the (inaudible) and (inaudible) and I
have been trying every goddamn thing I can to try to get you
and me to work on time. I changed my schedule. I
(inaudible) telling fucking George every day. I have to put up
with those fucking bitches in the back there, telling me what
to fuck to do and you telling me what to do, everybody
1-05-1737
fucking telling me what do to [sic]. Nobody gives me any
fucking consideration here. I have been trying everything I
can to try to keep you (inaudible)..."
Milani stated that, after hearing the message, he felt that the message was hostile,
intimidating and vulgar, and that this kind of language was not permissible in the work
place. Milani testified that the message had been taken off of Swanson's personal cell
phone voice-mail and that he was not sure whether Swanson was working when the
message was sent.
Milani further testified that Dr. George Moran, one of the employers at the office,
prepared two letters regarding the incident, one dated May 13, 2004 and one dated May
14, 2004. The May 13 letter reported that plaintiff was "slamming exam room doors and
swearing under her breath" because she was upset that Swanson could not wait to give
her a ride home.
The May 14 letter reported that Swanson had complained about an "intimidating"
phone call left on her home answering service by plaintiff and that Swanson shared this
message with the office manager. Plaintiff claimed that the message was in response
to being left stranded at work as well as receiving many inflammatory phone calls at
home from Swanson. The letter further stated that office management told plaintiff that
the message was interpreted as mean-spirited and instrumental in creating
workplace hostility. Milani testified that Swanson was warned about her conduct as
well, but that she still worked at the firm. When asked whether he had ever given
plaintiff a warning about leaving emotional messages on people's voice-mail, Milani
-3-
1-05-1737
responded "I think it is just kind of assumed that there is no violence tolerated in the
work place." On May 18, 2004, plaintiff was discharged for making a "hostile and
intimidating and vulgar phone call" to one of the other employees.
Plaintiff testified that she was given a letter stating that the office manager had
warned her about slamming a door and saying "swear words" under her breath as a
reason for discharge. She denied slamming doors or cursing under her breath. Plaintiff
admitted that on May 13, she left a message for Swanson and explained that Swanson
had called her five times that evening. Swanson first called "saying vulgar, dirty bad
words to [her]." Plaintiff stated that, after she hung up, Swanson continued calling her
but she did not "answer her back." When plaintiff did not answer, Swanson left a five-
minute message calling plaintiff "every name." Plaintiff did not save any of Swanson's
messages. Plaintiff testified that she waited and then called Swanson and left the
message.
Plaintiff further testified that no one at her employer's office ever warned her
about leaving emotional messages on someone's personal voice-mail. She stated that
her work performance was "excellent" and that she had never been "written up" for
anything.
Following the telephone hearing, the referee affirmed the claims adjudicator's
determination that plaintiff was ineligible for unemployment benefits due to misconduct.
The referee found that: (1) plaintiff had relied upon Swanson for transportation to work;
(2) on May 13, 2004, Swanson left plaintiff stranded at work; (3) plaintiff became upset,
cursing under her breath and slamming doors and she was asked to refrain from this
-4-
1-05-1737
conduct; (4) later that evening, Swanson telephoned plaintiff several times and,
according to plaintiff, left several insulting messages; (5) in response, plaintiff
telephoned Swanson and left a "vulgar message." The referee concluded that "the
testimony of record established that the [plaintiff] knew or should reasonably have
known that the message she left for her coworker constitute[d] a willful and deliberate
disregard of the employer's polices."
Plaintiff appealed to the Board, which affirmed the referee's decision. The Board
found that the referee's decision was supported by the record and the law and
incorporated it as part of its decision. On administrative review, the trial court affirmed
the decision of the Board, finding that it is "not against the manifest weight of the
evidence nor *** contrary to law."
On appeal, plaintiff contends that her voice-mail message to Swanson did not
constitute misconduct because it did not harm the employer or other employees and
she did not receive prior warnings.
Initially, we must first determine the applicable standard of review. Plaintiff
argues that the Board's determination that plaintiff's voice-mail message to Swanson
constituted misconduct is a legal conclusion and must be reviewed de novo. The
Department contends that the Board's determination constituted a mixed question of law
and fact and should not be reversed unless it is clearly erroneous. We agree with the
Department.
-5-
1-05-1737
In a case involving a claim for unemployment benefits, the Board is the trier of
fact and we must defer to its factual findings unless they are against the manifest weight
of evidence.
Jenkins v. Department of Employment Security, 346 Ill. App. 3d 408, 412 (2004); Horton
v. Department of Employment Security, 335 Ill. App. 3d 537, 540 (2002). When only a
legal question is involved, the standard of review is de novo. Wrobel v. Department of
Employment Security, 344 Ill. App. 3d 533, 536 (2003). However, when, as here, the
issue on appeal involves a mixed question of law and fact, deference will be given to the
agency's decision and we will only reverse when the Board's decision is "clearly
erroneous." AFM Messenger Service, Inc. v. Department of Employment Security, 198
Ill. 2d 380, 395 (2001); Horton, 335 Ill. App. 3d at 540-41. A mixed question of law and
fact is one that involves an examination of the legal effect of a given set of facts. AFM
Messenger Service, 198 Ill. 2d at 391.
Here, we are presented with numerous questions that require application of
certain facts to determine their legal effect. For example, we must determine whether
the alleged conduct harmed the employer and whether a reasonable rule against the
alleged conduct can be inferred. Therefore, we will apply a "clearly erroneous"
standard. Having addressed the appropriate standard of review, we now turn to the
merits of plaintiff's claims.
The Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq (West 2004))
was enacted to provide economic relief to individuals who become involuntarily
unemployed. AFM, 198 Ill. 2d at 396; Jenkins, 346 Ill. App. 3d at 411. However, the
-6-
1-05-1737
individual claiming unemployment insurance benefits has the burden of establishing her
eligibility. Jenkins, 346 Ill. App. 3d at 411.
Individuals who are "discharged for misconduct" are ineligible to receive
unemployment benefits under the Act. 820 ILCS 405/602(A) (West 2004); Arroyo v.
Doherty, 296 Ill. App. 3d 839, 844 (1998). Three elements must be proven to establish
misconduct under the Act: (1) that there was a "deliberate and willful violation" of a rule
or policy; (2) that the rule or policy of the employing unit was reasonable; and (3) that
the violation either has harmed the employer or was repeated by the employee despite
previous warnings. 820 ILCS 405/602(A) (West 2004); Arroyo, 296 Ill. App. 3d at 845.
In determining whether an employer was harmed, the employee's conduct should
be viewed in the context of potential harm, and not in the context of actual harm.
Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448 (1998).
Additionally, an employer is not required to prove the existence of a reasonable rule by
direct evidence, and a court may find the existence of a reasonable rule "by a
commonsense realization that certain conduct intentionally and substantially disregards
an employer's interests." Greenlaw, 299 Ill. App. 3d at 448. Standards of behavior that
an employer has a right to expect constitute a reasonable rule or policy. Bandemer v.
Department of Employment Security, 204 Ill. App. 3d 192, 195 (1990). Such a rule or
policy does not need to be written or otherwise formalized. Caterpillar, Inc. v.
Department of Employment Security, 313 Ill. App. 3d 645, 654 (2000).
In the present case, although the voice-mail message to Swanson may not have
directly harmed the employer, it was potentially harmful to its interests because the use
-7-
1-05-1737
of hostile and intimidating language to a coworker could adversely affect the work
environment. See Greenlaw, 299 Ill. App. 3d at 448. The evidence at the Department's
phone hearing established that on May 13, 2004, prior to leaving the voice-mail, plaintiff
became upset at work because Swanson left her stranded and she began cursing under
her breath and slamming doors. Later that day, plaintiff left a message on the personal
voice-mail of Swanson. In this message, plaintiff repeatedly used abusive language
and stated that she was angry toward Swanson and other nurses at the office. Milani
testified that he thought the message was hostile, intimidating and vulgar and that his
office did not permit the type of language used in plaintiff's message.
Although it appears that the vulgar message was left on Swanson's voice-mail
after business hours, the incident from which it arose began at work and included the
disruption of slamming doors and swearing. Additionally, several profane comments in
the message related to coworkers and the work environment. Clearly this incident had
the potential to affect employee morale and cooperation and ultimately harm the
employer. See Greenlaw, 299 Ill. App. 3d at 448.
Moreover, although there was no written policy concerning the use of abusive
language towards coworkers, commonsense implies that the use of hostile, intimidating
and vulgar language "intentionally and substantially disregards an employer's interests."
Greenlaw, 299 Ill. App. 3d at 448-49 (holding that the plaintiff violated the standard of
behavior an employer has a right to expect where the plaintiff told her supervisor to "
'kiss my grits' "). Furthermore, misconduct may be found even if the abusive conduct
occurred off work premises. See Caterpillar, 313 Ill. App. 3d at 654 (holding that
-8-
1-05-1737
"common sense implies the existence of a policy against employees continually making
unwanted contact with a coworker at work and outside of work regarding their romantic
relationship"). Therefore, under the facts as presented, we cannot say that the Board
was clearly erroneous in determining that plaintiff violated a reasonable rule. See
Bandemer, 204 Ill. App. 3d at 195.
Plaintiff maintains that Caterpillar, 313 Ill. App. 3d at 654, where the plaintiff
made unwanted contact with a coworker both at work and outside work, and Greenlaw,
299 Ill. App. 3d at 448-49, where the plaintiff told her supervisor to "kiss my grits" at
work, are distinguishable from the case at bar. While we agree that there are some
factual differences between those cases and the present case, we base our decision on
the rationale of these cases which held that a plaintiff may be discharged if she violates
a standard of behavior an employer has a right to expect.
Accordingly, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
O'MARA FROSSARD and NEVILLE, JJ., concur.
-9-
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17-4108
Chen v. Barr
BIA
Christensen, IJ
A206 072 210
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 4th day of November, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 YI CHEN,
15 Petitioner,
16
17 v. 17-4108
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, New York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Paul Fiorino,
28 Senior Litigation Counsel, Judith
29 R. O’Sullivan, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, DC.
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 Petitioner Yi Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a November 27, 2017,
7 decision of the BIA affirming a March 6, 2017, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Yi Chen, No. A206 072 210 (B.I.A. Nov. 27,
11 2017), aff’g No. A206 072 210 (Immig. Ct. N.Y. City Mar. 6,
12 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
19 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
23 the applicant . . . , the consistency between the applicant’s
2
1 . . . written and oral statements . . . , the internal
2 consistency of each such statement, the consistency of such
3 statements with other evidence of record . . . without regard
4 to whether an inconsistency, inaccuracy, or falsehood goes to
5 the heart of the applicant’s claim, or any other relevant
6 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
7 an IJ’s credibility determination unless, from the totality
8 of the circumstances, it is plain that no reasonable fact-
9 finder could make such an adverse credibility ruling.” Xiu
10 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
11 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
12 the agency’s determination that Chen was not credible as to
13 his claim that police officers detained and beat him on
14 account of his practice of Christianity or that he feared
15 future persecution because he was a practicing Christian in
16 the United States.
17 The IJ found that Chen’s demeanor detracted from his
18 credibility because he paused numerous times when answering
19 even basic questions and sometimes did not answer at all.
20 The IJ may base a credibility determination on the “demeanor,
21 candor, or responsiveness” of the applicant. 8 U.S.C.
22 § 1158(b)(1)(B)(iii). The record supports the IJ’s finding.
23 Chen failed to respond or had lengthy pauses in answering
3
1 basic questions, such as whether the police stated why they
2 were raiding his unregistered church in China and how long he
3 had attended his church in the United States. We defer to
4 the IJ’s findings based on his observation of Chen’s demeanor,
5 see Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
6 Cir. 2005), particularly where, as discussed below, the
7 findings are supported by inconsistencies, see Li Hua Lin v.
8 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We
9 can be still more confident in our review of observations
10 about an applicant’s demeanor where, as here, they are
11 supported by specific examples of inconsistent testimony.”).
12 The agency reasonably relied on Chen’s inconsistent
13 statements about being required to report to the police in
14 China and his internally inconsistent testimony about his
15 church attendance in the United States. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 165-
17 67. Chen’s application and his wife’s letter stated, without
18 more, that he was under “police surveillance.” Chen then
19 testified that he was required to report to the police once
20 or twice every week. Although Chen argues that the two
21 descriptions refer to the same facts, the IJ reasonably
22 concluded that the reporting requirement was a significant
23 fact that Chen would be expected to include in the
4
1 application. See Hong Fei Gao, 891 F.3d at 78–79 (weight
2 given to an omission depends, in part, on whether “facts are
3 ones that a credible petitioner would reasonably have been
4 expected to disclose under the relevant circumstances”); see
5 also Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)
6 (holding that while “applicants are not required to list every
7 incident” in an application, the agency does not err in
8 relying on differing descriptions).
9 Chen was also inconsistent about his church attendance
10 in the United States, first testifying that he regularly
11 attends church on Sundays, then stating it was on Mondays,
12 and offering no explanation for the inconsistency. Although
13 Chen argues that this inconsistency is immaterial, an IJ may
14 rely on even tangential inconsistencies. See Xiu Xia Lin,
15 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency . . .
16 as long as the totality of the circumstances establishes that
17 an asylum applicant is not credible.” (emphasis in
18 original)).
19 Having questioned Chen’s credibility, the agency
20 reasonably relied on his failure to rehabilitate his
21 testimony with reliable corroborating evidence. “An
22 applicant’s failure to corroborate his or her testimony may
23 bear on credibility, because the absence of corroboration in
5
1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question.” Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As the IJ found,
4 Chen did not corroborate his attendance of church in China or
5 in the United States. His unsupported assertions that no one
6 would testify or provide letters from either of his churches
7 is insufficient to compel a reasonable fact-finder to
8 conclude “that such corroborating evidence is unavailable.”
9 8 U.S.C. § 1252(b)(4). And though he argues that the IJ did
10 not consider his explanations, the IJ did refer to them, but
11 did not find them reasonable. The IJ was not compelled to
12 credit the explanations. See Majidi v. Gonzales, 430 F.3d
13 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
14 a plausible explanation for his inconsistent statements to
15 secure relief; he must demonstrate that a reasonable fact-
16 finder would be compelled to credit his testimony.” (internal
17 quotations omitted and emphasis in original)).
18 Accordingly, given the IJ’s consideration of Chen’s
19 demeanor, the discrepancies within Chen’s statements and with
20 the letter from his wife, and the lack of corroboration of
21 his practice of Christianity, the adverse credibility
22 determination is supported by substantial evidence. See
23 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
6
1 That determination is dispositive of asylum, withholding of
2 removal, and CAT relief because all three claims are based on
3 the same factual predicate. See Paul v. Gonzales, 444 F.3d
4 148, 156-57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions are DENIED and stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7
| {
"pile_set_name": "FreeLaw"
} |
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3531
_____________
PEDRO LOZANO; HUMBERTO
HERNANDEZ; ROSA LECHUGA;
JOHN DOE 1; JOHN DOE 2; JOHN
DOE 3, a Minor, By His parents;
JANE DOE 1; JANE DOE 2; JANE
DOE 3; JOHN DOE 4, a Minor, By
His parents, BRENDA LEE
MIELES; CASA DOMINICANA OF
HAZLETON, INC.; HAZLETON
HISPANIC BUSINESS
ASSOCIATION; PENNSYLVANIA
STATEWIDE LATINO
COALITION; JANE DOE 5; JOHN
DOE 7; JOSE LUIS LECHUGA,
v.
CITY OF HAZLETON,
Appellant.
______________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3:06-cv-01586)
District Judge: Honorable James M. Munley
____________
Argued
August 15, 2012
On Remand from the United States Supreme Court
____________
Before: McKEE, Chief Judge, NYGAARD and VANASKIE,
Circuit Judges
(Opinion Filed: July 26, 2013)
____________
Omar Jadwat, Esq. (ARGUED)
Lee Gelernt, Esq.
American Civil Liberties Union
Immigrants‟ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
Lucas Guttentag, Esq.
Jennifer Chang, Esq.
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, CA 94111-0000
Witold J. Walczak, Esq.
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213-0000
Jackson Chin, Esq.
Foster Maer, Esq.
Puerto Rican Legal Defense & Education Fund
99 Hudson Street, 14th Floor
New York, NY 10013-0000
Ghita Schwarz, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012-0000
Thomas B. Fiddler, Esq.
White & Williams
1650 Market Street
1800 One Liberty
Philadelphia, PA 19103
2
Elena Park, Esq.
Cozen O‟Connor
200 Four Falls Corporate Center
P.O. Box 800, Suite 400
West Conshohocken, PA 19428-0800
Ilan Rosenberg, Esq.
Thomas G. Wilkinson, Esq.
Cozen O‟Connor
1900 Market Street
Philadelphia, PA 19103
Shamaine A. Daniels, Esq.
P.O. Box 5347
Harrisburg, PA 17110
Attorneys for Plaintiffs-Appellees
Kris W. Kobach, Esq. (ARGUED)
University of Missouri-Kansas City
School of Law
5100 Rockhill Road, Law 1-200
Kansas City, MO 64110
Michael Hethmon, Esq.
Immigration Reform Law Institute
25 Massachusetts Avenue, N.W.
Suite 330B
Washington, D.C. 20001
Attorneys for Defendant-Appellant
Damon Scott
1446 Fair Oaks Lane
Florence, SC 29506
Paul J. Orfanedes, Esq.
James F. Peterson, Esq.
Judicial Watch, Inc.
501 School Street, S.W.
Washington, D.C. 20024-0000
3
Richard A. Samp, Esq.
Washington Legal Foundation
2009 Massachusetts Avenue, N.W.
Washington, D.C. 20036-0000
Andrew L. Schlafly, Esq.
939 Old Chester Road
Far Hills, NJ 07931
Attorneys for Amicus Appellants
Robin S. Conrad, Esq.
National Chambers Litigation Center
1615 H. Street, N.W., Suite 230
Washington, D.C. 20062-0000
Carter G. Phillips, Esq.
Sidley Austin
1501 K Street, N.W.
Washington, D.C. 20005
Eric A. Shumsky, Esq.
Orrick, Herrington & Sutcliffe
1152 15th Street, N.W.
Columbia Center
Washington, D.C. 20005-0000
Charles D. Weisselberg, Esq.
Berkley Law School
688 Simon Hall
Berkley, CA 94720
Jacob S. Pultman, Esq.
Allen & Overy
1221 Avenue of the Americas
New York, NY 10020-0000
John M. West, Esq.
Bredhoff & Kaiser
805 15th Street, N.W., Suite 1000
4
Washington, D.C. 20005-0000
Mark D. McPherson, Esq.
Morrison & Foerster
1290 Avenue of the Americas
New York, NY 10104
Burt M. Rublin, Esq.
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Nancy Winkelman, Esq.
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Kenneth J. Pfaehler, Esq.
Dentons US
1301 K Street, N.W.
Suite 600, East Tower
Washington, D.C. 20005-3364
Lawrence H. Fisher, Esq.
Cohen & Willwerth
301 Grant Street
One Oxford Centre, Suite 4300
Pittsburgh, PA 15219
Attorneys for Amicus Appellees
____________
OPINION OF THE COURT
____________
McKEE, Chief Judge.
This case is before us on remand from the United
States Supreme Court. The City of Hazleton previously
appealed the District Court‟s judgment permanently enjoining
enforcement of two Hazleton ordinances that attempt to
5
prohibit employment of unauthorized aliens and preclude
them from renting housing within the City.1 In a precedential
Opinion and Judgment filed on September 9, 2010, we upheld
the permanent injunction. Thereafter, the Supreme Court
granted Hazleton‟s petition for a writ of certiorari and
remanded this case so that we could reconsider our analysis in
light of Chamber of Commerce v. Whiting, 563 U.S. __, 131
S. Ct. 1968 (2011). See City of Hazleton v. Lozano, 563 U.S.
__, 131 S. Ct. 2958 (2011). Subsequently, the Court also
decided Arizona v. United States, 567 U.S. __, 132 S. Ct.
2492 (2012). Both Whiting and Arizona address the extent to
which federal immigration law pre-empts various state laws
pertaining to the treatment of unauthorized aliens. On
remand, we asked for supplemental briefing on whether either
of those decisions alter our original analysis upholding the
District Court‟s injunction.
Having thoroughly considered the additional
submissions of the parties and the Court‟s decisions in
Whiting and Arizona, we again conclude that both the
employment and housing provisions of the Hazleton
ordinances are pre-empted by federal immigration law.
Accordingly, we will again affirm the District Court‟s order
enjoining enforcement of these provisions.
I. BACKGROUND
The factual and procedural background underlying this
case have been extensively described in the District Court‟s
decision, Lozano v. City of Hazleton, 496 F. Supp. 2d 477
(M.D. Pa. 2007) (“Lozano I”), and our earlier decision,
Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010)
(“Lozano II”), vacated and remanded, 131 S. Ct. 2958
1
For reasons explained in Lozano v. City of Hazleton,
620 F.3d 170, 176 n.1 (3d Cir. 2010) (“Lozano II”), vacated
and remanded, 563 U.S. __, 131 S. Ct. 2958 (2011), we will
use the term “unauthorized alien” when discussing issues of
employment, and we will use either “aliens not lawfully
present” or “aliens lacking lawful immigration status” when
referring to persons who are not legally in this country.
6
(2011). Accordingly, we need not reiterate that history as
thoroughly as we otherwise would. However, context and
clarity require that we first set forth those facts underlying our
analysis on remand.
This litigation involves a series of immigration
ordinances enacted by the City of Hazleton between July
2006 and March 2007. The two ordinances at issue are: (1)
the Illegal Immigration Relief Act Ordinance (“IIRAO”),
which consists of Ordinance 2006-18, as amended by
Ordinance 2006-40, and Ordinance 2007-6; and (2) the Rental
Registration Ordinance (“RO”), which consists of Ordinance
2006-13.2 These ordinances attempt to regulate the
employment of unauthorized aliens, and the provision of
rental housing to aliens lacking lawful immigration status,
within Hazleton.
The relevant employment provisions make it unlawful
for any person “to knowingly recruit, hire for employment, or
continue to employ, or to permit, dispatch, or instruct” any
person without work authorization “to perform work in whole
or in part within the City.” IIRAO § 4A. The IIRAO also
provides for public monitoring and prosecution, and sanctions
violators by suspending their business permits. Id. § 4B.
“Safe harbor” from the IIRAO‟s sanctions is available for
businesses that verify work authorization using the federal E-
Verify program. Id. § 4B(5).3 The IIRAO also requires City
2
The full text of the IIRAO and RO are set forth as an
Appendix to Lozano II, 620 F.3d at 224-38. For convenience,
we again attach the full text of these ordinances as an
Appendix to this opinion.
3
“E-Verify is an internet-based system that allows an
employer to verify an employee‟s work-authorization status.
An employer submits a request to the E-Verify system based
on information that the employee provides. . . . In response to
that request, the employer receives either a confirmation or a
tentative nonconfirmation of the employee‟s authorization to
work.” Chamber of Commerce v. Whiting, 131 S. Ct. 1968,
1975 (2011) (internal quotation marks and citations omitted).
For a more complete description of the E-Verify program,
7
agencies and certain businesses to enroll in the E-Verify
program. Id. §§ 4B(6)(b), 4C, 4D.
The disputed housing provisions are found in both the
IIRAO and the RO. The IIRAO makes legal immigration
status a condition precedent to entering into a valid lease. Id.
§ 7B. The IIRAO also provides that it is “unlawful for any
person or business entity that owns a dwelling unit in the City
to harbor an illegal alien in the dwelling unit, knowing or in
reckless disregard of the fact that an alien” is unauthorized.
Id. § 5A. “Harboring” is broadly defined to include “let[ting],
leas[ing], or rent[ing] a dwelling unit to an illegal alien.” Id.
§ 5A(1).
The anti-harboring provisions in the IIRAO operate in
conjunction with the rental registration scheme established in
the RO. The RO requires that prospective occupants of rental
housing over the age of eighteen obtain an occupancy permit.
RO §§ 1m, 6a, 7b. The application for an occupancy permit
requires submission of “[p]roper identification showing proof
of legal citizenship and/or residency.” Id. § 7b(1)(g).
Landlords are prohibited from allowing anyone over the age
of eighteen to rent or occupy a rental unit without an
occupancy permit. Id. § 6a. Violators are subject to fines and
possible imprisonment. RO § 10.
As explained in Lozano II, numerous plaintiffs sued
alleging the ordinances were invalid and the District Court
permanently enjoined enforcement of the ordinances after a
two-week bench trial. The court concluded that the
ordinances are pre-empted by federal law and contrary to the
Due Process Clause of the Fourteenth Amendment, 42 U.S.C.
§ 1981, as well as a number of state laws limiting the
authority of municipalities in Pennsylvania. See Lozano II,
620 F.3d at 181.4
including its evolution and history, see Whiting, 131 S. Ct. at
1986.
4
The District Court dismissed Plaintiffs‟ Equal
Protection, Fair Housing Act, privacy, and Pennsylvania
8
We thereafter affirmed the ultimate judgment of the
District Court, although we differed in our reasoning.5 In
short, we held that the employment provisions in the IIRAO,
though not expressly pre-empted, are conflict pre-empted
because they stand as an obstacle to the accomplishment and
execution of federal law. Lozano II, 620 F.3d 210-19. We
also held that the housing provisions in the IIRAO and RO
are invalid because they impermissibly “regulate
immigration” and are both field and conflict pre-empted by
federal immigration law. Id. at 219-24.6
As we noted at the outset, after we issued our decision
in Lozano II, the Supreme Court granted the City‟s petition
for a writ of certiorari, vacated our decision, and remanded
for reconsideration in light of that Court‟s intervening
decision in Chamber of Commerce v. Whiting, 131 S. Ct.
1968 (2011). In Whiting, the Supreme Court affirmed the
decision of the Court of Appeals for the Ninth Circuit in
Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856
Landlord and Tenant Act claims. Those portions of the
District Court‟s ruling were not appealed.
5
We first held that at least one Plaintiff had standing
to challenge the employment and housing provisions of the
Hazleton ordinances generally, but no Plaintiff had standing
to challenge a severable private cause of action provision in
the IIRAO. Lozano II, 620 F.3d at 184-94. We also held that
certain Plaintiffs could proceed anonymously and that the
confidentiality agreement between the parties did not violate
8 U.S.C. § 1373(a). Id. at 194-96. In addition, we concluded
that Hazleton had waived any issues of severability except
with respect to the private cause of action provision. Id. at
182. Hazleton did not seek review of these holdings in its
petition for a writ of certiorari, and did not raise these issues
in its supplemental briefing following remand. Accordingly,
these portions of our earlier decision are not at issue here.
6
Because we affirmed on pre-emption grounds, it was
not necessary to reach the other grounds the District Court
relied upon in imposing the injunction.
9
(9th Cir. 2009). There, the Court of Appeals for the Ninth
Circuit had upheld the Legal Arizona Workers Act against
claims of express and implied pre-emption. Chicanos Por La
Causa, 558 F.3d at 866, 867. After the decision in Whiting,
the Supreme Court decided Arizona v. United States, 132 S.
Ct. 2492 (2012). There, the Court held that three of four
challenged provisions of Arizona‟s immigration law, known
as “S.B. 1070,” were pre-empted. However, the Court
overturned a preliminary injunction with respect to the fourth
provision and remanded for additional fact finding.
III. DISCUSSION7
The question before us on remand remains whether
federal law pre-empts the employment and/or housing
provisions of the Hazleton ordinances.
As we explained in Lozano II, “[t]he pre-emption
doctrine is a necessary outgrowth of the Supremacy Clause,”
which “provides that the laws of the United States „shall be
the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.‟” Lozano II, 620 F.3d at 203 (quoting U.S.
Const. art. VI, cl. 2). Pre-emption may be either express or
implied, and implied pre-emption includes both field pre-
emption and conflict pre-emption. Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
Field pre-emption occurs “[w]hen Congress intends
federal law to „occupy the field.‟” Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000). “The intent to
displace state law altogether can be inferred from a
framework of regulation „so pervasive . . . that Congress left
no room for the States to supplement it‟ or where there is a
7
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to
28 U.S.C. § 1291. We review a district court‟s conclusions of
law de novo and its factual findings for clear error. See, e.g.,
McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147
(3d Cir. 2009).
10
„federal interest . . . so dominant that the federal system will
be assumed to preclude enforcement of state laws on the same
subject.‟” Arizona v. United States, 131 S. Ct. 2492, 2501
(2012) (internal quotation marks and citation omitted). To
determine the boundaries that Congress sought to occupy
within the field, “„we look to the federal statute itself, read in
the light of its constitutional setting and its legislative
history.‟” De Canas v. Bica, 424 U.S. 351, 360 n.8 (1976)
(quoting Hines v. Davidowitz, 312 U.S. 52, 78-79 (1941)
(Stone, J., dissenting)), superseded by statute on other
grounds as stated in Whiting, 131 S. Ct. at 1974-75.
Conflict pre-emption can occur in one of two ways:
where “compliance with both federal and state regulations is a
physical impossibility,” or “where the challenged state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” Arizona, 131
S. Ct. at 2501 (internal quotation marks and citations
omitted). Courts must utilize their judgment to determine
what constitutes an unconstitutional impediment to federal
law, and that judgment is “informed by examining the federal
statute as a whole and identifying its purpose and intended
effects.” Crosby, 530 U.S. at 373.
Nothing the Court said in Whiting or Arizona altered
this framework for pre-emption analysis. The Court, did,
however provide important guidance for our application of
the pre-emption doctrine to the Hazleton ordinances. The
Court upheld Arizona‟s efforts to regulate the employment of
unauthorized aliens through a business licensing law in
Whiting, but largely rejected Arizona‟s efforts to enact its
own immigration policies, both within and outside of the
employment context, in Arizona. With those cases as our
compass, we now reconsider our prior ruling upholding the
District Court‟s permanent injunction.
A. The Employment Provisions
The relevant employment provisions of the IIRAO
regulate and prohibit a broad range of economic interactions
with unauthorized aliens. Section 4 of the IIRAO renders it
11
“unlawful for any business entity to knowingly recruit, hire
for employment, or continue to employ, or to permit,
dispatch, or instruct” any person without work authorization
“to perform work in whole or in part within the City.” IIRAO
§ 4A. “Work” is defined to include “any job, task,
employment, labor, personal services, or any other activity for
which compensation is provided, expected, or due, including
but not limited to all activities conducted by business
entities.” Id. § 3F. The IIRAO‟s prohibitions also apply to
any “agreement to perform any service or work or to provide
a certain product in exchange for valuable consideration.” Id.
§ 3C. “Every business entity that applies for a business
permit” must “sign an affidavit . . . affirming that they do not
knowingly utilize the services of or hire any person who is an
unlawful worker.” Id. § 4A.
Any City resident may submit a complaint to
Hazleton‟s Code Enforcement Office (“HCEO”) alleging a
violation of the employment provisions. Id. § 4B(1). Upon
receipt of such a complaint, the HCEO requests identifying
information about the alleged unlawful worker from the
employing or contracting business entity. That business
entity must then provide the requested information within
three business days, or Hazleton will suspend its business
license. Id. § 4B(3). The HCEO then submits the identity
information to the federal government, pursuant to 8 U.S.C. §
1373, for verification of “the immigration status of such
person(s).” Id.8
8
8 U.S.C. § 1373(a) provides:
Notwithstanding any other provision of
Federal, State, or local law, a Federal,
State, or local government entity or
official may not prohibit, or in any way
restrict, any government entity or official
from sending to, or receiving from, the
Immigration and Naturalization Service
information regarding the citizenship or
immigration status, lawful or unlawful,
of any individual.
12
If the HCEO confirms that the worker lacks
authorization to work in the United States, the business must
terminate that worker within three business days or the City
will suspend its business license. Id. § 4B(4). A business
whose license has been suspended under the IIRAO regains
its license one business day after it submits an affidavit
affirming that it has terminated the unauthorized worker. Id.
§ 4B(6). After a second or subsequent violation of the
IIRAO, Hazleton suspends the business‟s license for a
minimum of twenty days and reports the violation to the
federal government. Id. § 4B(7).
Safe harbor from the IIRAO‟s sanctions is available
for businesses that verify the work authorization of their
workers using the federal E-Verify program. Id. § 4B(5). In
addition, the IIRAO requires that City agencies and
businesses that contract with the City for amounts greater
than $10,000 must enroll in E-Verify. Id. §§ 4C, 4D. Those
business entities found to have utilized the work of two or
more unlawful workers at one time must enroll in E-Verify in
order to recover their license. Id. § 4B(6)(b).
We previously held that the IIRAO‟s employment
provisions, though not expressly pre-empted, are conflict pre-
empted. Lozano II, 620 F.3d 210-19. However, in Chamber
of Commerce v. Whiting, 132 S. Ct. 1968 (2011), the Supreme
Court upheld an Arizona statute that allowed state courts to
suspend or revoke the business licenses of employers who
knowingly or intentionally employ unauthorized aliens and
required that all Arizona employers use E-Verify.
Accordingly, we will first consider whether our analysis in
Lozano II, concluding that the IIRAO conflicts with federal
law, survives Whiting.
In Whiting, the Supreme Court considered whether the
employer sanctions provisions of the Legal Arizona Workers
Act (“LAWA”) were pre-empted by the Immigration Reform
and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100
Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). The Court
held that those provisions were not expressly pre-empted
because they fell “squarely” within the confines of IRCA‟s
13
savings clause. That provision of IRCA “expressly preempts
States from imposing „civil or criminal sanctions‟ on those
who employ unauthorized aliens, „other than through
licensing and similar laws.‟” Whiting, 131 S. Ct. at 1977
(quoting 8 U.S.C. § 1324a(h)(2)) (emphasis added).9 The
Court also held that Arizona‟s licensing law did not conflict
with federal law, and therefore was not impliedly pre-empted.
Whiting, 131 S. Ct. at 1981-85. The Court noted that the
Arizona statute “simply implement[ed] the sanctions that
Congress expressly allowed Arizona to pursue through
licensing laws,” and “Arizona went the extra mile in ensuring
that its law closely tracks IRCA‟s provisions in all material
respects.” Id. at 1981.10
The Court in Whiting also held that the Illegal
Immigration Reform and Immigrant Responsibility Act of
9
This part of the decision in Whiting is consistent
with our analysis in Lozano II. There, we held that the
employment provisions in the IIRAO were not expressly pre-
empted because they constituted a “licensing [or] similar
law[],” exempted from express pre-emption under 8 U.S.C. §
1324a(h)(2). Lozano II, 620 F.3d at 207-10. Like Arizona‟s
licensing law, the employment provisions here “fall[] . . .
within the confines of the authority Congress chose to leave
to the States and therefore is not expressly preempted.”
Whiting, 131 S. Ct. at 1981.
10
For example, the Arizona law: (i) “adopt[s] the
federal definition of who qualifies as an „unauthorized
alien‟”; (ii) “expressly provides that state investigators must
verify the work authorization of an allegedly unauthorized
alien with the Federal Government” and prohibits any
independent state determination; (iii) like the federal law,
prohibits “„knowingly‟ employing an unauthorized alien” and
requires that the prohibition be interpreted consistently with
federal laws; and (iv) “provides employers with the same
affirmative defense for good-faith compliance with the I-9
process as does the federal law” and provides employers “a
rebuttable presumption of compliance with the law when they
use E-Verify.” Whiting, 131 S. Ct. at 1981-82. We will
describe the “I-9” verification process infra.
14
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(codified as amended in various sections of 8 U.S.C.), which
established the optional program now known as E-Verify, did
not pre-empt Arizona‟s requirement that all employers use E-
Verify. Whiting, 131 S. Ct. at 1985-86. The Court reasoned
that the IIRIRA provision setting up E-Verify “contains no
language circumscribing state action,” id. at 1985, and
Arizona‟s use of E-Verify “in no way obstructs achieving
[Congress‟s] aims,” id. at 1986.
The plurality opinion in Whiting rejected or otherwise
undermined several aspects of our analysis in Lozano II
insofar as we held that the IIRAO‟s employment provisions
were conflict pre-empted.
First, Whiting contradicts our conclusion that the
employment provisions in Hazleton‟s ordinance impede
congressional objectives by creating a separate and
independent process for determining whether an employer is
guilty of employing unauthorized aliens. Compare Whiting,
131 S. Ct. at 1981 (rejecting the Chamber‟s argument that
Congress intended the federal system to be exclusive and
therefore any state system necessarily conflicts with federal
law) with Lozano II, 620 F.3d at 213 (“The crux of this
conflict . . . is rooted in the fact that Hazleton has established
an alternate system at all.”). Since Congress expressly
allowed states to pursue sanctions through licensing laws, the
Whiting plurality reasoned that “Congress did not intend to
prevent the States from using appropriate tools to exercise
that authority.” Whiting, 131 S. Ct. at 1981.
Second, in Lozano II, we reasoned that, by imposing
additional sanctions on employers who hire unauthorized
aliens without including an express anti-discrimination
provision, the IIRAO would create “the exact situation that
Congress feared: a system under which employers might
quite rationally choose to err on the side of discriminating
against job applicants they perceive to be foreign.” Lozano
II, 620 F.3d at 218. However, the Whiting plurality rejected a
similar argument. Those Justices reasoned that LAWA did
not displace IRCA‟s anti-discrimination provisions, and that
15
other federal and state laws provide “further protection . . .
and strong incentive for employers not to discriminate.”
Whiting, 131 S. Ct. at 1984. Thus, the Court believed that,
even without an express anti-discrimination provision in the
state law, “[t]he most rational path for employers is to obey
the law—both the law barring the employment of
unauthorized aliens and the law prohibiting discrimination.”
Id.
Finally, the Whiting plurality undermined our
reasoning in Lozano II to the extent that we found pre-
emption because the City‟s employment provisions “coerce[]
[the] use of E-Verify.” Lozano II, 620 F.3d at 214. That
conclusion is now foreclosed by Whiting‟s approval of
Arizona‟s requirement that all employers use E-Verify.
Whiting, 131 S. Ct. at 1985-86. There, the Court concluded
that the requirement does not conflict with the federal scheme
because the consequences for failure to use E-Verify under
both the Arizona law and federal law were the same: the
employer forfeits an otherwise available rebuttable
presumption of compliance. Id. The Court further reasoned
that the requirement does not obstruct federal objectives
because “the Federal Government has consistently expanded
and encouraged the use of E-Verify.” Id. at 1986.
Nevertheless, Plaintiffs here argue that even after
Whiting, Hazleton‟s employment provisions remain impliedly
pre-empted. Plaintiffs point first to the fact that the IIRAO‟s
restrictions apply to a much broader range of actors and
activities than Congress intended under IRCA. According to
Plaintiffs, this basis for our prior finding of conflict pre-
emption was not disturbed by Whiting. We agree.
Section 4 of the IIRAO makes it “unlawful for any
business entity to knowingly recruit, hire for employment, or
continue to employ, or to permit, dispatch, or instruct any
person who is an unlawful worker to perform work . . . within
the City.” IIRAO § 4A. The IIRAO defines “business entity”
to include any person “engaging in any activity, enterprise,
profession, or occupation for gain, benefit, advantage, or
livelihood, whether for profit or not for profit.” Id. § 3A.
The term specifically includes “self-employed individuals,
16
partnerships, corporations, contractors,11 and subcontractors,”
Id. § 3A(1), and any entity that “possesses a business permit, .
. . is exempt from obtaining such a business permit, . . . [or] is
operating unlawfully without such a business permit.” Id. §
3A(2).
In sharp contrast to the IIRAO, the federal prohibition
in IRCA reaches only “hir[ing]” or “recruit[ing] or refer[ring]
for a fee, for employment in the United States.” 8 U.S.C. §
1324a(a)(1)(A) (emphasis added). In striking the intricate
balance that lead to the enactment of IRCA, Congress
deliberately excluded independent contractors and other non-
employees from the scope of the restrictions contained in the
statute. Arizona, 132 S. Ct. at 2504. (“Congress enacted
IRCA as a comprehensive framework for „combating the
employment of illegal aliens.‟”) (emphasis added) (quoting
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137,
147 (2002)). As we explained previously:
In drafting IRCA, Congress explicitly
declined to sanction employers based on
the work authorization status of “casual
hires (i.e., those that do not involve the
existence of an employer/employee
relationship).” H.R. Rep. No. 99-682(I),
[at 57], 1986 U.S.C.C.A.N. 5649, 5661.
This was not an unreasoned choice, but
part of the crafting of the statute to
minimize the burden placed on
employers. As the court explained in
Edmondson, “[e]mployers are not
required [under federal law] to verify the
work eligibility of independent
contractors” because it “would increase
the burdens on business.” 594 F.3d at
11
The term “contractor” is further defined to include
any “person, employer, subcontractor or business entity that
enters into an agreement to perform any service or work or to
provide a certain product in exchange for valuable
consideration.” IIRAO § 3C.
17
767. Businesses utilize independent
contractors, in part, to reduce the costs
and liabilities associated with procuring
labor when an enduring and structured
relationship is not needed. Compelling
businesses to concern themselves with
the work authorization status of
contractors alters this relationship, and
also raises costs.
Lozano II, 620 F.3d at 216-17 (alterations in original).
Under IRCA, employers are not required to verify
contractors‟ work eligibility, as they must with employees.
See 8 C.F.R. § 274a.2(b) (requiring employers to verify work
eligibility of employees); § 274a.1(f) (excluding “independent
contractor” and “those engaged in casual domestic
employment” from the definition of “employee”); id. §
274a.1(g) (excluding those who use “contract labor” from the
definition of “employer”).12 Given the intricate framework of
IRCA, we cannot assume that the distinction is immaterial.
Rather, it appears to be a deliberate distinction that Congress
included as part of the balance it struck in determining the
scope and impact of IRCA‟s employer sanctions. However,
Hazleton‟s ordinance does not distinguish between
employees, on the one hand, and independent contractors or
12
Employers are, however, liable for knowingly
utilizing the services of independent contractors who lack
work authorization. 8 U.S.C. § 1324a(a)(4) (“[A] person or
other entity who uses a contract, subcontract, or exchange . . .
to obtain the labor of an alien . . . knowing that the alien is an
unauthorized alien . . . shall be considered to have hired the
alien for employment . . . in violation of [8 U.S.C. §
1324a](1)(A).”). However, this provision does not undermine
Congress‟s intent to restrict IRCA‟s applicability to the
employer/employee context. Rather, the purpose was to close
a “loophole” so that employers may not use independent
contractors to circumvent IRCA‟s prohibition on the
employment of unauthorized workers. See H.R. Rep. No. 99-
682(I), at 62, 1986 U.S.C.C.A.N. 5649, 5666.
18
casual hires, on the other.
The breadth of the reach of the IIRAO‟s sanctions
operates in tandem with the fact that the IIRAO provides a
safe harbor only if “prior to the date of the violation, the
business entity had verified the work authorization of the
alleged unlawful worker(s)” using the E-Verify program.
IIRAO § 4B(4). Accordingly, the Hazleton scheme compels
employers to verify the status of independent contractors and
casual hires in order to obtain a safe harbor. In Lozano II, we
determined that although the IIRAO only coerces, without
directly requiring, verification of non-employees‟ work
authorization, the coercion is equally problematic for pre-
emption purposes because the IIRAO subjects employers to
sanctions if those non-employees lack work authorization.
Lozano II, 620 F.3d at 217.13
13
The City argues that, in practice, the IIRAO would
treat independent contractors in a manner similar to federal
law under 8 U.S.C. § 1324a(a)(4)—only those who knowingly
use the services of contactors who lack work authorization
would face sanctions. For the reasons explained above, we
disagree. Further, the IIRAO‟s terms reach as far as union
organizing activity and the activity of not for profit
organizations that refer individuals for employment but
without a fee or profit motive. See IIRAO § 3A, 4A. Federal
regulations specifically exclude “union hiring halls that refer
union members or non-union individuals who pay union
membership dues.” 8 C.F.R. § 274a.1(d)-(e); see also H.R.
Rep. 99-682(I), at 57, 1986 U.S.C.C.A.N. 5649, 5660 (noting
exception for unions and similar entities). These “[f]ederal
regulations have no less pre-emptive effect than federal
statutes.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458
U.S. 141, 153 (1982). Moreover, as we will explain, in
addition to reaching a broader range of actors, the IIRAO‟s
employment provisions also sanction a broader range of
activities than does IRCA. Because the terms of the IIRAO
sweep so broadly, even if we were to accept the City‟s
position that the IIRAO and IRCA treat independent
contractors similarly, it would not save the IIRAO from pre-
emption.
19
Moreover, we must assess the extraordinarily broad
definition of the persons and entities covered by the IIRAO
together with the equally broad definition of the activities
covered by the IIRAO. The IIRAO defines “work” to include
“any job, task, employment, labor, personal services, or any
other activity for which compensation is provided, expected,
or due, including but not limited to all activities conducted by
business entities.” IIRAO § 3F. The IIRAO‟s prohibitions
also apply to any “agreement to perform any service or work
or to provide a certain product in exchange for valuable
consideration.” Id. § 3C. Moreover, there is no requirement
that the alleged unauthorized work be performed at the
location associated with an entity‟s business license, or even
in connection with the activities for which an entity has a
business license, for it to be considered a violation of the
IIRAO.14 Thus, under a literal reading of the IIRAO, the
HCEO may revoke the business license of any person or
entity if, for example, s/he purchases used items at a yard sale
from an unauthorized alien, buys a glass of lemonade from an
undocumented child‟s lemonade stand, or pays an
undocumented neighbor to mow her lawn—even if such
conduct is entirely unrelated to the actor‟s licensed business
activity.
Indeed, it is difficult for us to conceive of any activity
that is even remotely economic in nature, conducted by any
person or entity in Hazleton, that would not be swept into the
broad expanse of the IIRAO. We believe that prohibiting
such a broad array of commercial interactions, based solely
on immigration status, under the guise of a “business
licensing” law is untenable in light of Congress‟s deliberate
decision to limit IRCA‟s reach to the employer-employee
relationship.
Whiting is not to the contrary. The City argues that the
Court in Whiting was not troubled by the fact that Arizona‟s
law applied to independent contractors. However, the
14
Rather, the IIRAO expressly states that “work”
includes, but “is not limited to all activities conducted by
business entities.” IIRAO § 3F (emphasis added).
20
provisions to which the City refers were added as part of a
2008 amendment to LAWA, and as the Supreme Court
expressly noted, the 2008 amendments “were not part of the
statute when [the] suit was brought, they are not before us and
we do not address their interaction with federal law.”
Whiting, 131 S. Ct. at 1986 n.10; see also Arizona
Contractors Ass’n v. Candelaria, 534 F. Supp. 2d 1036, 1053
(D. Ariz. 2008) (“[L]ike IRCA, [LAWA‟s] restrictions apply
only with respect to those persons who have an „employment
relationship‟ with an employer, so it does not include casual
hires.”), aff’d sub nom. Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856 (9th Cir. 2009), aff’d sub nom.,
Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
Thus, unlike the IIRAO, the Arizona law upheld by the
Supreme Court “closely track[ed] IRCA‟s provisions in all
material respects,” Whiting, 131 S. Ct. at 1981, including
IRCA‟s precisely tailored reach.15 Thus, Whiting alone does
not support the proposition that an ordinance that diverges
from federal law to the extent the IIRAO does is similarly
sheltered from the reach of federal pre-emption.
The Supreme Court‟s more recent decision in Arizona
v. United States, 132 S. Ct. 2492 (2012), further undermines
the contention that the IIRAO should be upheld as a protected
business licensing law. The Court in Arizona affirmed that
“the existence of an express pre-emption provisio[n] does not
bar the ordinary working of conflict pre-emption principles or
impose a special burden that would make it more difficult to
establish the preemption of laws falling outside the clause.”
Arizona, 132 S. Ct. at 2504-05 (internal quotation marks and
citation omitted) (alteration in original). Moreover, the
Court‟s reasons for finding that § 5(C) of Arizona‟s S.B. 1070
law conflicted with IRCA apply with equal force to the
15
Indeed, the Court in Whiting noted that the Arizona
law tracked the provisions of the federal law so tightly that if
the Arizona law was pre-empted, “there really is no way for
the State to implement licensing sanctions, contrary to the
express terms of the savings clause.” 131 S. Ct. at 1987.
That is clearly not the situation here with the IIRAO.
21
IIRAO‟s attempt to extend its regulations beyond the
employer-employee relationship. Section 5(C) of S.B. 1070
made it a state crime to seek or engage in work without
federal authorization. In concluding that that provision was
pre-empted, the Supreme Court stated, “Congress enacted
IRCA as a comprehensive framework for „combating the
employment of illegal aliens,‟” and IRCA, by design, “does
not impose federal criminal sanctions on the employee side
(i.e., penalties on aliens who seek or engage in unauthorized
work).” Arizona, 132 S. Ct. at 2504. Thus, the Court
concluded that “[a]lthough § 5(C) attempts to achieve one of
the same goals as federal law—the deterrence of unlawful
employment—it involves a conflict in the method of
enforcement” and is therefore pre-empted. Id. at 2505. Just
as purposely as Congress limited the scope of IRCA‟s
coverage to exclude independent contractors, Hazleton
purposely stretched the IIRAO to include them. The result is
a local ordinance that conflicts with Congress‟s intent to limit
IRCA‟s application to the employer/employee relationship.
See Arizona, 132 S. Ct. at 2505 (“[A] „[c]onflict in technique
can be fully as disruptive to the system Congress enacted as
conflict in overt policy.‟” (citing Motor Coach Employees v.
Lockridge, 403 U.S. 274, 287 (1971))). Accordingly, like §
5(C) of Arizona‟s S.B. 1070, the IIRAO employment
provisions conflict with IRCA.
In Lozano II, we also concluded that the IIRAO
conflicts with IRCA because it does not provide an
affirmative defense to employers who comply with the I-9
process to verify immigration status. Lozano II, 620 F.3d at
214-15.16 Plaintiffs argue that this conclusion was also not
16
The “I-9” process derives its name from the
form that IRCA requires employers to complete.
IRCA requires that employers . . .
confirm an employee‟s authorization to
work by reviewing the employee‟s
United States passport, resident alien
card, alien registration card, or other
document approved by the Attorney
General; or by reviewing a combination
22
disturbed by Whiting because the Arizona law at issue there
provided a safe harbor for I-9 compliance. Once again, we
agree.
As we have explained:
Congress paid considerable attention to
the costs IRCA would impose on
employers, see e.g., H.R. Rep. No. 99-
682(I), at [90], 1986 U.S.C.C.A.N. 5649,
5694 (“Considerable discussion was
generated during the processing of [this
bill] to the effect the employer sanctions
provisions were placing an undue burden
on employers in requiring them to do the
paperwork and keep records on
employees.”), and drafted the legislation
in a manner that would minimize those
burdens, see, e.g., 132 Cong. Rec.
H10583-01 (daily ed. Oct. 15, 1986)
(statement of Rep. Bryant) (IRCA has
been “carefully designed for the
minimum burden necessary . . . to be
effective.”).
of other documents such as a driver‟s
license and social security card. §
1324a(b)(1)(B)-(D). The employer must
attest under penalty of perjury on
Department of Homeland Security Form
I-9 that he “has verified that the
individual is not an unauthorized alien”
by reviewing these documents. §
1324a(b)(1)(A). The form I-9 itself “and
any information contained in or
appended to [it] . . . may not be used for
purposes other than for enforcement of”
IRCA and other specified provisions of
federal law. § 1324a(b)(5).
Whiting, 131 S. Ct. at 1974.
23
Lozano II, 620 F.3d 211. As part of this effort, Congress
created the I-9 process as a uniform federal system by which
employers must verify the work authorization of new hires.
Under IRCA, good-faith compliance with the I-9 process
provides an employer with an affirmative defense if charged
with a violation of 8 U.S.C. § 1324a. 8 U.S.C. § 1324a(a)(3);
H.R. Rep. No. 99-682 (I), at 57. However, Hazleton‟s
scheme does not provide any safe harbor for employers who
use the I-9 process. The IIRAO‟s employment provisions
thus contravene congressional intent for the I-9 process to
serve as an acceptable way of protecting against sanctions and
Congress‟s desire to avoid placing an undue burden on
employers. As we previously explained:
By making the I-9 system a uniform
national requirement, Congress limited
the compliance burden on interstate
corporations while facilitating uniform
enforcement. A uniform system reduces
costs for employers with multiple
locations throughout the country by
ensuring that the same human resources
procedures can be used in all locations.
Hazleton‟s scheme denies interstate
employers who use the I-9 process the
benefits of uniformity. Interstate
employers with locations in Hazleton
(who wish to ensure safe harbor in all
locations) would either have to adhere to
different regulations in different
locations, or use E-Verify in all
locations.
Lozano II, 620 F.3d at 215 (internal quotation marks and
citation omitted).
Although the Supreme Court in Whiting upheld
Arizona‟s requirement that all employers enroll in E-Verify,
the Court‟s holding did not negate the importance of the I-9
process to the federal scheme. Rather, the Court‟s holding
was based upon its conclusion that “the consequences of not
24
using E-Verify under the Arizona law are the same as . . .
under the federal law,” Whiting, 131 S. Ct. at 1985,17 and
“[t]he Arizona law provides employers with the same
affirmative defense for good-faith compliance with the I-9
process as does the federal law,” id. at 1982. Thus, although
Arizona “required” employers to use E-Verify, that
“requirement” was exactly the same as the federal law‟s
treatment of E-Verify, and similarly, Arizona treated I-9
compliance the same way that federal law treated I-9
compliance.
The City argues that the lack of an affirmative defense
for I-9 compliance is irrelevant given the structure of the
Hazleton scheme, which does not rely on a judicial process
for proving that an employer knowingly hired an
unauthorized alien and assessing a penalty. In addition to
highlighting procedural due process concerns, this assertion
elevates form over function and misses the point. The
significance of the I-9 affirmative defense is the safe harbor it
provides for employers. We are therefore not impressed with
a distinction between judicially imposed sanctions and
17
Under both the Arizona and federal law, the only
consequence of not using E-Verify is forfeiture of the
otherwise available rebuttable presumption of compliance
with the law. Whiting, 131 S. Ct. at 1985-86. As we
explained, supra, the Supreme Court explicitly noted that,
during the course of the litigation, Arizona had amended its
statute. The amendments included, inter alia, the attachment
of “other consequences, such as the loss of state-allocated
economic development incentives” to a failure to use E-
Verify. Id. at 1986 n.10. Because those amendments “were
not part of the statute when [the] suit was brought,” the Court
was careful to explain that “they are not before us and we do
not address their interaction with federal law.” Id. In this
regard, we note that the IIRAO attaches an additional penalty
to a failure to use E-Verify: disqualification from city
contracts greater than $10,000. IIRAO § 4D. This additional
sanction for failure to use E-Verify goes beyond a mere
licensing provision and is yet another reason the IIRAO
conflicts with federal law.
25
administratively imposed sanctions. The resulting impact on
a given business appears indistinguishable. Whether a judicial
officer or an administrator is charged with imposing sanctions
is irrelevant. The City insists that the drafters of Hazleton‟s
ordinances attempted to construct a parallel regulatory
scheme that would comply with IRCA‟s savings clause.
However, the City‟s decision to omit a safe harbor for I-9
compliance, while providing one for those who use E-Verify,
see IIRAO § 4B(5), is not as inconsequential as the City
would have us believe. A scheme providing a safe harbor
for both verification procedures would have been much closer
to the parallel regulatory scheme that the Court upheld in
Whiting. Absent that, an important aspect of the federal
scheme is undermined.
Geier v. American Honda Motor Co., 529 U.S. 861
(2000), further illustrates how Hazleton‟s disregard of the I-9
process impedes federal objectives. There, Alexis Geier
suffered serious injuries when the Honda she was driving
crashed into a tree. She sued the auto company alleging that
her injuries resulted from the absence of airbags, which she
claimed was a design defect. Id. at 865. However, Geier‟s
car had automatic belts and thus complied with applicable
federal safety standards, which, rather than requiring airbags,
“allow[ed] manufacturers to choose among different passive
restraint mechanisms, such as airbags, automatic belts, or
other passive restraint technologies.” Id. at 878. The
applicable federal statute, however, also stated that
“[c]ompliance with a federal safety standard does not exempt
any person from liability under common law.” Id. at 868
(internal quotation marks omitted, bracket in original).
Nonetheless, the manufacturer argued that the plaintiff‟s
claim for damages was pre-empted by federal law. The Court
had to decide “whether the Act pre-empts a state common-
law tort action in which the plaintiff claims that the . . .
manufacturer, who was in compliance with the standard,
should nonetheless have equipped [her] automobile with
airbags.” Id. at 865.
The Supreme Court held that the tort action conflicted
with federal law and was thus pre-empted. Id. at 874. The
26
Court reasoned that federal regulations sought “a variety and
mixture of [safety] devices” and “deliberately imposed” a
“gradual passive restraint phase in.” Id. at 881.
Notwithstanding the savings clause, allowing the action to
proceed when plaintiff‟s car complied with the applicable
federal safety standard “would have stood „as an obstacle to
the accomplishment and execution of‟ [those] important . . .
federal objectives.” Id. (quoting Hines, 312 U.S. at 67).
Similarly, permitting Hazleton to impose sanctions on
employers who have complied with, and relied upon, the I-9
process would obstruct important federal objectives.
Congress wanted to make the I-9 process available as a
uniform means of protecting against such sanctions and
minimizing the burden on employers. See also Fid. Fed. Sav.
& Loan Ass’n v. de la Cuesta, 458 U.S. 141, 156 (1982)
(finding conflict pre-emption where state law limited the
availability of due-on-sale provisions in loan instruments,
which federal regulators deemed “essential to the economic
soundness of the thrift industry”).
The IIRAO‟s lack of procedural protections presents
yet another “„obstacle to the accomplishment and execution
of the full purposes and objectives‟” of federal law. See
Arizona, 131 S. Ct. at 2501 (quoting Hines, 312 U.S. at 67).
The IIRAO provides substantially fewer procedural
protections than IRCA, which circumscribed sanctions with a
detailed hearing and adjudication procedure. Under IRCA,
only complaints with a “substantial probability of validity”
are investigated. 8 U.S.C. § 1324a(e)(1)(B). In contrast,
under the IIRAO, any superficially valid complaint is
investigated. IIRAO §§ 4B(1), (3). In addition, when
enacting IRCA, Congress mandated that an employer be
provided with notice and an opportunity for a hearing, 8
U.S.C. § 1324a(e)(3)(A), and an administrative law judge
must find the employer guilty of violating IRCA by a
preponderance of the evidence before any sanctions can be
imposed, id. § 1324a(e)(3)(C). That employer also has a right
to an administrative appeal and judicial review. Id. §
1324a(e)(7)-(8). In marked contrast, the IIRAO requires the
HCEO to immediately suspend the business license of any
entity that fails to provide requested information about
27
alleged unlawful workers within three business days. IIRAO
§ 4B(3).18 If a business entity does not terminate an
unauthorized worker within three days of being notified that
the worker is not authorized, the City immediately suspends
that entity‟s business license. Id. § 4B(4).19 Thus, the
burdens imposed on businesses under the Hazleton scheme
are greater than those Congress elected to impose under the
similar, but distinct approach of IRCA.
The procedures in LAWA (the Arizona statute upheld
in Whiting), substantially track the procedures Congress
established under IRCA. In contrast to the immediate
suspension of business licenses authorized by the IIRAO,
sanctions under LAWA, like under IRCA, could only be
imposed after the attorney general or county attorney brings
an enforcement action in state court. A.R.S. § 23-212(D)
(effective Sept. 19, 2007 to Apr. 30, 2008). The state court
was directed to provide a “hearing at the earliest practicable
date,” id. § 22-212(E), and sanctions could only be imposed
by the court after determining that there had been a violation,
id. § 23-212(F).20
Conversely, the lack of procedural protections in the
IIRAO‟s employment provisions undermines the delicate
balance Congress erected for enforcing the prohibition on
hiring unauthorized aliens. Congress was clearly concerned
18
IIRAO § 4B(3) states: the HCEO “shall suspend
the business permit of any entity which fails, within three
business days after receipt of the request [for identity
information regarding alleged unlawful workers], to provide
such information.”
19
IIRAO § 4B(4) provides that the HCEO “shall
suspend the business permit of any business entity which fails
[to] correct a violation of this section within three business
days after notification of the violation by the [HCEO].”
20
See also Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856, 868-69 (9th 2009) (describing
procedures to be followed under LAWA and holding that
LAWA provided adequate due process).
28
with avoiding undue burdens on employers. See, e.g., H.R.
Rep. No. 99-682(I), at 56 (describing desire for employer
sanctions to be implemented in a manner that “would be the
least disruptive to the American businessman”); S. Rep. No.
99-132, at 35 (1985) (expressing concern regarding
“harassment . . . against innocent employers” and noting that
“[s]pecific protections have been included to minimize the
risk of these undesirable results”). As the Supreme Court
noted, “Congress did indeed seek to strike a balance among a
variety of interests when it enacted IRCA.” Whiting, 131 S.
Ct. at 1984.21 It is therefore apparent that the lack of minimal
procedural protections in Hazleton‟s ordinance further
undermines the express congressional objective of
minimizing undue burdens on, and harassment of, employers.
Accordingly, although the Court‟s recent decisions in
Whiting and Arizona alter some of our previous analysis,
neither opinion alters the outcome of this dispute. For the
reasons we have set forth above, we again hold that the
employment provisions of the IIRAO are pre-empted because
they “stand[] as an obstacle to the accomplishment and
execution” of IRCA‟s objectives, Hines, 312 U.S. at 67, and
were properly enjoined by the District Court.22
21
The Court in Whiting concluded that a failure to
include an express anti-discrimination provision was not fatal
to Arizona‟s employer sanctions law and that the Arizona law
did not otherwise upset the balance of interests that Congress
intended. Whiting, 131 S. Ct. at 1984. However, nothing in
Whiting undermines the conclusion that IRCA indeed
represents a careful congressional balance of competing
interests, including, inter alia, preventing undue burden on
employers.
22
The City argues that the standard articulated in
United States v. Salerno, 481 U.S. 739 (1987), precludes a
finding of pre-emption and that Arizona supports its position
in this regard. We disagree. Although Justice Scalia‟s and
Justice Alito‟s opinions in Arizona cite Salerno and espouse
the City‟s approach, see Arizona, 132 S. Ct. at 2515 (Scalia,
J., concurring in part and dissenting in part); id. at 2534
(Alito, J., concurring in part and dissenting in part), no part of
29
B. The Housing Provisions
The housing provisions at issue in this litigation are
found in both the IIRAO and the RO. The RO sets up a rental
registration scheme that operates in conjunction with anti-
the majority opinion in Arizona, and no part of Whiting,
references Salerno at all. The plurality in Whiting and
majority in Arizona did not adopt the approach the City asks
us to adopt. That approach would reject a conflict pre-
emption claim in a facial challenge whenever a defendant can
conjure up just one hypothetical factual scenario in which
implementation of the state law would not directly interfere
with federal law. Indeed, if this were the standard governing
the Supreme Court‟s review of Arizona‟s S.B. 1070 law,
many of the sources of conflict with federal law described by
the Court would have been irrelevant to the Court‟s conflict
pre-emption analysis. For example, the Court in Arizona
concluded that § 6, which authorized state and local police to
arrest certain potentially removable individuals, conflicted
with federal law in part because it interfered with federal
enforcement discretion and could target and harass
individuals the federal government does not seek to remove.
Arizona, 132 S. Ct. at 2506-07. However, under the City‟s
approach, this conflict is irrelevant in a facial challenge
because, in at least some circumstances, the local police could
be arresting individuals whom the federal government does
want removed and whose arrest would not otherwise conflict
with federal policy. To the contrary, however, the Court in
Arizona found this potential conflict consequential.
The analysis of § 2(B) in Arizona also fails to support
the City‟s position. The Court vacated a preliminary
injunction against § 2(B) and remanded for further fact
finding because the provision, on its face, was ambiguous,
and Arizona‟s courts may construe § 2(B) in a way that would
preclude any unconstitutional applications of the law.
Arizona, 132 S. Ct. at 2509-10. The Court, however, did not
reject a facial challenge against the provision pursuant to the
City‟s theory, i.e., because implementation of § 2(B), in some
circumstances may be in harmony with federal law.
30
harboring provisions in the IIRAO to prohibit unauthorized
aliens from residing in any rental housing within the City.
The RO requires any prospective occupant of rental
housing over the age of eighteen to apply for and receive an
occupancy permit. RO § 1m, 6a, 7b. To receive the permit,
the prospective occupant must pay a ten-dollar fee and submit
certain basic information and “[p]roper identification showing
proof of legal citizenship and/or residency” to the HCEO. Id.
§ 7b. Landlords must inform all prospective occupants of this
requirement, and landlords are prohibited from allowing
anyone over the age of eighteen to rent or occupy a rental unit
without registering with the City and receiving a permit. Id. §
6a, 7b. A landlord found guilty of violating these
requirements must pay an initial fine of $1000 per
unauthorized occupant. Id. § 10b. That landlord is also
subject to an additional fine of $100 per day, per unauthorized
occupant, until the violation is corrected. Authorized
occupants of rental housing who allow anyone without an
occupancy permit to reside with them are subject to the same
fines. Id. § 10c.
As we mentioned earlier, the anti-harboring provisions
in the IIRAO make legal immigration status a condition
precedent to entering into a valid lease. IIRAO § 7B. A
tenant lacking lawful status “who enters into such a contract
shall be deemed to have breached a condition of the lease.”
Id. The IIRAO makes it “unlawful for any person or business
entity that owns a dwelling unit in the City to harbor an
illegal alien in the dwelling unit, knowing or in reckless
disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law.” Id. § 5A.
“Harboring” is broadly defined to include “let[ting], leas[ing],
or rent[ing] a dwelling unit to an illegal alien.” Id. § 5A(1).
An “illegal alien” is defined as “an alien who is not lawfully
present in the United States, according to the terms of United
States Code Title 8, section 1101 et seq.” Id. § 3D.
We previously found the housing provisions in the
IIRAO and the RO pre-empted on three separate pre-emption
31
grounds.23 No part of Whiting or Arizona considered
provisions of a state or local ordinance that, like the housing
provisions here, prohibit, and define “harboring” to include,
allowing unauthorized aliens to reside in rental housing.
Moreover, nothing in Whiting or Arizona undermines our
analysis of the contested housing provisions here. On the
contrary, the Court‟s language reinforces our view that
Hazleton‟s attempt to prohibit unauthorized aliens from
renting dwelling units in the City are pre-empted.
1. The Housing Provisions Constitute
Impermissible Regulation of Immigration
and Are Field Pre-empted.
We begin this part of our analysis by noting that the
Supreme Court was careful in Arizona to stress the important
national interests that are implicated when local governments
attempt to regulate immigration and the concomitant need to
leave such regulation in the hands of the federal government.
The federal power to determine immigration
23
In Lozano II, we determined that the presumption against
pre-emption applied to our analysis of the employment
provisions, Lozano II, 620 F.3d at 206-07, but did not apply
to our analysis of the housing provisions, id. at 219. We find
unpersuasive the City‟s argument that we erred in failing to
apply the presumption to the housing provisions and see
nothing in Arizona or Whiting suggesting otherwise. The
housing provisions attempt to regulate who may live within
Hazleton based solely on immigration status. In this area of
“significant federal presence,” we will not apply the
presumption against pre-emption. See United States v. Locke,
529 U.S. 89, 108 (2000); see also United States v. Alabama,
691 F.3d 1269, 1296-97 (11th Cir. 2012) (concluding that
state law prohibiting courts from recognizing contracts with
aliens lacking lawful immigration status “constitutes a thinly
veiled attempt to regulate immigration under the guise of
contract law,” and thus, the presumption against pre-emption
does not apply, but even if it does, the law is pre-empted),
cert. denied, 569 U.S. __, 133 S. Ct. 2022 (2013).
32
policy is well settled. Immigration policy can
affect trade, investment, tourism, and
diplomatic relations for the entire Nation, as
well as the perceptions and expectations of
aliens in this country who seek the full
protection of its laws.
Arizona, 132 S. Ct. at 2498. In finding three of the four
challenged provisions in Arizona pre-empted, the Court
reiterated the primacy of the federal government‟s concern
for the treatment and regulation of aliens in this country.
In Lozano II, we held that the housing provisions
impermissibly “regulate immigration” in contravention of the
Supreme Court‟s pronouncement that a state or locality may
not determine “„who should or should not be admitted into
the country, and the conditions under which a legal entrant
may remain.‟” Lozano II, 620 F.3d at 220 (quoting De
Canas, 424 U.S. at 355).24 In concluding that the housing
provisions constituted impermissible regulation of
immigration, we recognized that “the fact that aliens are the
subject of a state statute does not render it a regulation of
24
See also Villas at Parkside Partners v. Farmers
Branch, __ F.3d __, 2013 WL 3791664, at *15 (5th Cir. July
22, 2013) (en banc) (Reavley, J., concurring) (“Because the
sole purpose and effect of this [housing] ordinance is to target
the presence of illegal aliens within the city . . . and to cause
their removal, it contravenes the federal government‟s
exclusive authority on the regulation of immigration and the
conditions of residence in this country, and it constitutes an
obstacle to federal authority over immigration and the
conduct of foreign affairs.”); id. at *16 (Dennis, J.,
concurring) (“[T]he Ordinance is preempted in all of its core
provisions by the comprehensive and interrelated federal
legislative schemes governing the classification of
noncitizens, the adjudication of immigration status, and the
exclusion and deportation of noncitizens from the United
States, enacted pursuant to the federal government‟s
constitutional authority to administer a uniform national
immigration policy.”).
33
immigration.” De Canas, 424 U.S. at 355. We did not hold
that the housing provisions were a regulation of immigration
simply because “aliens are the subject of” those provisions.
Rather, we determined that “[t]hrough its housing provisions,
Hazleton attempts to regulate residence based solely on
immigration status.” Lozano II, 620 F.3d at 220 (emphasis
added). Thus, we concluded that enforcement of the housing
provisions must be enjoined because “[d]eciding which aliens
may live in the United States has always been the prerogative
of the federal government.” Id. The housing provisions of
Hazleton‟s ordinances are nothing more than a thinly veiled
attempt to regulate residency under the guise of a regulation
of rental housing. By barring aliens lacking lawful
immigration status from rental housing in Hazleton, the
housing provisions go to the core of an alien‟s residency.
States and localities have no power to regulate residency
based on immigration status.
For these same reasons, we also concluded that the
housing provisions are field pre-empted by the INA. That
statute is centrally concerned with “„the terms and conditions
of admission to the country and the subsequent treatment of
aliens lawfully admitted.‟” Id. (quoting De Canas, 424 U.S.
at 359). The INA‟s comprehensive scheme “plainly
precludes state efforts, whether harmonious or conflicting, to
regulate residence in this country based on immigration
status.” Id. We noted that although Hazleton‟s housing
provisions do not control actual physical entry into, or
expulsion from, Hazleton or the United States, “in essence,
that is precisely what they attempt to do.” Id. at 220 (internal
quotations marks and citation omitted). Again, we see
nothing in the Supreme Court‟s decisions in Whiting or
Arizona that undermines these conclusions.
Since our decision in Lozano II, a number of courts
have concluded that state or local laws proscribing the
harboring of aliens lacking lawful status are also field pre-
empted because they intrude on the field of alien harboring.
See, e.g., Ga. Latino Alliance for Human Rights v. Governor
of Ga., 691 F.3d 1250, 1263-65 (11th Cir. 2012) (“GLAHR”)
(concluding that federal law occupies the field with respect to
34
“the entry, movement, and residence of aliens within the
United States” and state law proscribing, inter alia, harboring
is field pre-empted); United States v. Alabama, 691 F.3d
1269, 1285-87 (11th Cir. 2012) (same), cert. denied, 569 U.S.
__, 133 S. Ct. 2022 (2013); United States v. South Carolina,
906 F. Supp. 2d 463, 468 (D.S.C. 2012) (concluding that
provisions of state law proscribing transporting or sheltering
aliens lacking lawful status “infringe upon a comprehensive
federal statutory scheme”), aff’d, __ F.3d __, 2013 WL
3803464 (4th Cir. July 23, 2013); Valle del Sol v. Whiting,
No. 10-1061, 2012 WL 8021265, at *5 (D. Ariz. Sept. 5,
2012) (concluding that state law proscribing, inter alia,
harboring of aliens lacking lawful status is field pre-empted).
As the Eleventh Circuit Court of Appeals explained:
The INA provides a comprehensive
framework to penalize the transportation,
concealment, and inducement of
unlawfully present aliens. Pursuant to 8
U.S.C. § 1324(a)(1)(A)(ii)-(iv), it is a
federal crime for any person to transport
or move an unlawfully present alien
within the United States; to conceal,
harbor, or shield an unlawfully present
alien from detection; or to encourage or
induce an alien to “come to, enter, or
reside in the United States.” . . . Section
1324(c) permits local law enforcement
officers to arrest for these violations of
federal law, but the federal courts
maintain exclusive jurisdiction to
prosecute for these crimes and interpret
the boundaries of the federal statute. See
id. § 1329. Subsection (d) of § 1324
further dictates evidentiary rules
governing prosecution of one of its
enumerated offenses, and subsection (e)
goes so far as to mandate a community
outreach program to “educate the public
in the United States and abroad about the
35
penalties for bringing in and harboring
aliens in violation of this section.”
GLAHR, 691 F.3d at 1263-64. We agree with the Eleventh
Circuit and other courts that have held that “the federal
government has clearly expressed more than a „peripheral
concern‟ with the entry, movement, and residence of aliens
within the United States and the breadth of these laws
illustrates an overwhelmingly dominant federal interest in the
field.” Id. at 1264 (citation omitted).
The City argues that, by authorizing state and local
officials to arrest individuals guilty of harboring, see 8 U.S.C.
§ 1324(c), Congress specifically invited state and local
governments into this field. According to the City, this
“invitation”—along with the requirement in 8 U.S.C. § 1373
that federal agencies respond to inquiries from states and
localities regarding any alien‟s immigration status—
forecloses any argument that the housing provisions are field
pre-empted. However, while § 1324(c) allows state officials
to arrest for violations of crimes enumerated in that section,
the federal statute does not authorize states to prosecute those
crimes. Instead, under federal law, the prosecution of such
violations must take place in federal court and is at the sole
discretion of federal officials. See 8 U.S.C. § 1329. “In the
absence of a savings clause permitting state regulation in the
field, the inference from these enactments is that the role of
the state is limited to arrest for violations of federal [anti-
harboring] law.” GLAHR, 691 F.3d at 1264.
For the reasons explained above, we again hold that
the housing provisions in the IIRAO and RO constitute an
impermissible regulation of immigration and are field pre-
empted because they intrude on the regulation of residency
and presence of aliens in the United States and the occupied
field of alien harboring.
2. The Housing Provisions Are Conflict
Pre-empted.
In Lozano II, we concluded that the housing provisions
36
are also conflict pre-empted because they interfere with the
federal government‟s discretion in, and control over, the
removal process. The exercise of that discretion implicates
important foreign policy considerations. Arizona, 132 S. Ct.
at 2499. We also concluded that the housing provisions are
inconsistent with federal anti-harboring law. Again, the
subsequent decisions of the Supreme Court have not
undermined our reasoning. In fact, as suggested above and
explained below, the Court‟s subsequent decisions reinforce
our prior conflict pre-emption analysis with respect to the
housing provisions.
In Arizona, the Court emphasized that “[a] principle
feature of the [INA‟s] removal system is the broad discretion
exercised by immigration officials.” Arizona, 132 S. Ct. at
2499. “Federal officials . . . must decide whether it makes
sense to pursue removal at all [and,] [i]f removal proceedings
are commenced, [whether] aliens may seek . . . discretionary
relief allowing them to remain in the country or at least to
leave without formal removal.” Id.25 Yet, by prohibiting the
only realistic housing option many aliens have, Hazleton is
clearly trying to prohibit unauthorized aliens from living
within the City. As we explained in Lozano II, the housing
provisions, in effect, constitute an attempt to remove persons
from the City based entirely on a snapshot of their current
immigration status. Accordingly, the housing provisions
interfere with the federal government‟s discretion in deciding
whether and when to initiate removal proceedings. See
Lozano II, 620 F.3d at 221-22.26
25
See also Holder v. Martinez Gutierrez, 566 U.S. __,
132 S. Ct. 2011, 2015 (2012) (“The immigration laws have
long given the Attorney general discretion to permit certain
otherwise-removable aliens to remain in the United States.”);
Fid. Fed. Sav. & Loan Ass’n, 458 U.S. at 154 (“Where
Congress has directed an administrator to exercise his
discretion, his judgments are subject to judicial review only to
determine whether he has exceeded his statutory authority or
acted arbitrarily.”).
26
In Keller v. City of Fremont, __ F.3d __, 2013 WL
3242111 (8th Cir. June 28, 2013), a divided panel of the
37
Indeed, interference with the federal removal process
and the discretion entrusted to the Executive Branch are key
reasons for the Supreme Court‟s conclusions that § 6 and § 3
of Arizona‟s S.B. 1070 law are conflict pre-empted. The
Court reached that conclusion even though neither provision
purports to physically remove any aliens from Arizona or the
United States. In affirming an injunction against § 6, which
would have given Arizona police authority to arrest an
individual based on probable cause to believe the individual
has committed a removable offense, the Court determined
that the provision “would allow the State to achieve its own
immigration policy,” which could result in “unnecessary
harassment of some aliens . . . whom federal officials
determine should not be removed.” Arizona, 132 S. Ct. at
2506. The Court also found that “[b]y authorizing state
officers to decide whether an alien should be detained for
being removable, § 6 violates the principles that the removal
process is entrusted to the discretion of the Federal
Government.” Id. Similarly, in invalidating § 3, which
Court of Appeals for the Eighth Circuit has recently
concluded that a local ordinance, almost identical to the
housing provisions in the RO and IIRAO, does not interfere
with federal removal discretion. The majority reasoned that
the “rental provisions would only indirectly effect „removal‟
of any alien from the City,” in a manner comparable to how
“denying aliens employment inevitably has the effect of
„removing‟ some of them from the State.” Id. at *8. We
disagree. Restricting housing touches directly on residency
and federal removal discretion. As we explained in Lozano
II, “[i]t is difficult to conceive of a more effective method of
ensuring that persons do not enter or remain in a locality than
by precluding their ability to live in it.” Lozano II, 620 F.3d
at 220-21 (internal quotation marks and citation omitted).
The Eighth Circuit also concluded that the rental restrictions
do not determine who should or should not be admitted into
the country and do not conflict with federal anti-harboring
law. See Keller, 2013 WL 3242111, at *5, *7. For the
reasons explained above, we disagree with these conclusions
as well.
38
criminalized failure to carry an alien registration document in
violation of federal law, the Court noted that, in addition to
intruding on a field occupied by Congress, the provision also
conflicts with federal law because it would give Arizona the
power to act “even in circumstances where federal officials . .
. determine that prosecution would frustrate federal policies.”
Id. at 2503.
The same infirmities are evident here. Like the pre-
empted provisions in Arizona, the housing provisions
constitute an attempt to unilaterally attach additional
consequences to a person‟s immigration status with no regard
for the federal scheme, federal enforcement priorities, or the
discretion Congress vested in the Attorney General. Congress
has not banned persons who lack lawful status or proper
documentation from obtaining rental or any other type of
housing in the United States. Hazleton‟s decision to impose
this “distinct, unusual and extraordinary burden[] . . . upon
aliens” impermissibly intrudes into the realm of federal
authority. Hines, 312 U.S. at 65-66. Through the housing
provisions, Hazleton is seeking to achieve “its own
immigration policy,” one which will certainly result in
“unnecessary harassment of some aliens . . . whom federal
officials determine should not be removed.” Arizona, 132 S.
Ct. at 2506.
Hazleton may not unilaterally prohibit those lacking
lawful status from living within its boundaries, without regard
for the Executive Branch‟s enforcement and policy priorities.
“If every other state enacted similar legislation to overburden
the lives of aliens, the immigration scheme would be turned
on its head.” United States v. Alabama, 691 F.3d at 1295
n.21. Accordingly, the housing provisions conflict with
federal law.
In addition to undermining the comprehensive
procedures under which federal officials determine whether
an alien may remain in this country, Hazleton‟s housing
provisions would create significant foreign policy and
humanitarian concerns. As the Court in Arizona emphasized,
federal decisions in this arena “touch on foreign relations and
39
must be made with one voice.” Id. at 2506-07. “„One of the
most important and delicate of all international relationships .
. . has to do with the protection of the just rights of a
country‟s own nationals when those nationals are in another
country.‟” Arizona, 132 S. Ct. at 2498-99 (quoting Hines,
312 U.S. at 64). “It is fundamental that foreign countries
concerned about the status, safety, and security of their
nationals in the United States must be able to confer and
communicate on this subject with one national sovereign, not
the 50 separate states.” Id. at 2498. In addition, “[p]erceived
mistreatment of aliens in the United States may lead to
harmful reciprocal treatment of American citizens abroad.”
Id. Accordingly, “[s]ome discretionary decisions [in the
enforcement of immigration law] involve policy choices that
bear on this Nation‟s international relations,” and the exercise
of such discretion “embraces immediate human concerns.”
Id. at 2499. “Returning an alien to his own country may be
deemed inappropriate even where he has committed a
removable offense or fails to meet the criteria for admission.”
Id.
The Supreme Court‟s recognition of the primacy of the
national interest in regulations directly affecting aliens in this
country reinforces our holding in Lozano II that Hazleton‟s
attempt to regulate where aliens can live implicates strong
national interests and must be done with a single voice.27
Other federal courts that have addressed this issue agree that
attempts to proscribe harboring or restrict certain forms of
housing for aliens lacking lawful immigration status are
27
We realize, of course, that “[t]he pervasiveness of
federal regulation does not diminish the importance of
immigration policy to the States.” Arizona, 132 S. Ct. at
2500. Nonetheless, “„[t]he relative importance to the State of
its own law is not material when there is a conflict with a
valid federal law, for the Framers of our Constitution
provided that the federal law must prevail.‟” Fid. Fed. Sav. &
Loan Ass’n, 458 U.S. at 153 (quoting Free v. Bland, 369 U.S.
663, 666 (1962)); see also id. (Conflict pre-emption
“principles are not inapplicable here simply because real
property law is a matter of special concern to the States.”)
40
conflict pre-empted. Similarly, when the issue has been
presented in the context of a preliminary injunction, courts
have found a substantial likelihood of conflict pre-emption
for reasons similar to those we have described. See, e.g.,
Villas at Parkside Partners v. Farmers Branch, __ F.3d __,
2013 WL 3791664, at *8, *10 (5th Cir. July 22, 2013) (en
banc) (concluding that local housing ordinance analogous to
Hazleton‟s housing provisions conflicts with federal anti-
harboring law and federal removal procedures); GLAHR, 691
F.3d at 1265-67 (concluding that state law proscribing, inter
alia, harboring aliens lacking lawful status “presents an
obstacle to the execution of the federal statutory scheme and
challenges federal supremacy in the realm of immigration”);
United States v. Alabama, 691 F.3d at 1287-88 (same);
United States v. South Carolina, 906 F. Supp. 2d at 468
(concluding that provisions of state law proscribing
transporting or sheltering aliens lacking lawful status would
interfere with federal enforcement discretion), aff’d, __ F.3d
__, 2013 WL 3803464 (4th Cir. July 23, 2013); Valle del Sol,
2012 WL 8021265, at *6 (concluding that state law
proscribing, inter alia, harboring of aliens lacking lawful
status conflicts with federal law because it interferes with
federal enforcement discretion); Keller v. City of Fremont,
853 F. Supp. 2d 959, 972-73 (D. Neb. 2012), rev’d, 2013 WL
3242111 (8th Cir. June 28, 2013) (concluding that city
ordinance penalizing harboring or the lease or rental of
dwelling units to aliens lacking lawful status would impair
“the structure Congress has established for classification,
adjudication, and potential removal of aliens”).
Despite the obvious trespass into matters that must be
left to the national sovereign, the City continues to insist there
is no conflict pre-emption because it is merely engaging in
“concurrent enforcement” of federal immigration laws.
Under that theory, virtually any local jurisdiction could
prohibit activity that is also prohibited by federal law as long
as the local prohibition is not expressly pre-empted and the
locality is not acting in a field that is occupied by federal law.
The City cites to a decision from the Ninth Circuit Court of
Appeals in support of its contention: “Where state
enforcement activities do not impair federal regulatory
41
interests concurrent enforcement activity is authorized.”
Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983),
overruled by Hodgers-Durgin v. de la Vina, 199 F.3d 1037
(9th Cir. 1999). However, that argument collapses under its
own weight. It requires that local enforcement activity not
impair federal regulatory interests. It says nothing about the
propriety of concurrent enforcement when the local
enforcement does impair federal regulatory interests; yet, that
is the situation here.
Moreover, the City‟s argument simply cannot be
reconciled with the Supreme Court‟s holding in Arizona.
There, the Court reasoned that “[a]lthough § 5(C) attempts to
achieve one of the same goals as federal law—the deterrence
of unlawful employment—it involves a conflict in the method
of enforcement.” Arizona, 132 S. Ct. at 2505. The Court
went on to explain that it had previously “recognized that a
„[c]onflict in technique can be fully as disruptive to the
system Congress enacted as conflict in overt policy.‟” Id.
(quoting Motor Coach Employees, 403 U.S. at 287). Thus,
the Court found § 5(C) pre-empted even though the provision
imposed sanctions only on conduct already prohibited under
federal law.28
Furthermore, it must be remembered that the housing
provisions are not “concurrent” with federal law, despite
Hazleton‟s argument to the contrary. In addition to
interfering with federal removal discretion, the housing
provisions conflict with federal law because they define
28
While we acknowledge that § 5(C) attempted to
enact “a state criminal prohibition where no federal
counterpart exists,” Arizona, 132 S. Ct. at 2503 (emphasis
added), federal law does nonetheless prohibit unauthorized
employment and imposes civil penalties on aliens who seek
or engage in unauthorized work. See id. at 2504 (listing civil
penalties imposed on aliens who seek or engage in work
without authorization). Thus, § 5(C) is an example of a
state‟s “concurrent enforcement” effort, as that term is
defined by the City, which was nonetheless found to be
conflict pre-empted by the Supreme Court.
42
“harboring” to include simple landlord-tenant relationships.
Although the Supreme Court has yet to define “harboring” as
that term is used in 8 U.S.C. § 1324(a)(1)(A)(iii), we have
found that culpability requires some act of concealment from
authorities. See Lozano II, 620 F.3d at 223. “We . . . define
„harboring‟ as conduct „tending to substantially facilitate an
alien‟s remaining in the United States illegally and to prevent
government authorities from detecting the alien’s unlawful
presence.” Id. (quoting United States v. Ozcelik, 527 F.3d 88,
100 (3d Cir. 2008) (emphasis added)); see also United States
v. Kim, 193 F.3d 567, 574 (2d Cir. 1999) (Harboring
“encompasses conduct tending substantially to facilitate an
alien‟s remaining in the United States illegally and to prevent
government authorities from detecting his unlawful
presence.”). Renting an apartment in the normal course of
business is not, without more, conduct that prevents the
government from detecting an alien‟s unlawful presence.
Thus, it is highly unlikely that renting an apartment to an
unauthorized alien would be sufficient to constitute harboring
in violation of the INA.29
The City also argues that Whiting held that a
verification under 8 U.S.C. § 1373(c) is an accurate
assessment of an alien‟s immigration status and a sufficient
basis for state or local action with respect to that alien. The
City overlooks, however, that the state or locality must first
have authority to take the underlying action with respect to an
alien. Only then is verification under 8 U.S.C. § 1373(c)
relevant to support permissible state or local action. Because
the Whiting plurality held that Arizona‟s employer sanctions
law was a valid licensing law not pre-empted by IRCA, it
followed that a federal verification of immigration status is a
proper basis upon which Arizona may impose its licensing
29
See also Villas at Parkside Partners, 2013 WL
3791664, at *5 (concluding that, “by criminalizing conduct
that does not have the effect of evading federal detection, and
by giving state officials authority to act as immigration
officers outside the „limited circumstances‟ specified by
federal law,” local housing ordinance conflicts with federal
anti-harboring law).
43
sanctions. That is not the case with respect to the housing
provisions in Hazleton‟s ordinances.
As we have explained, the housing provisions are
themselves pre-empted. It is therefore irrelevant that they
would be imposed pursuant to a valid status verification under
§ 1373(c). Hazleton simply does not have the legal authority
to take that action even if done pursuant to a valid
determination of status under federal law. See Arizona, 132
S. Ct. at 2505 (explaining why § 5(C) of Arizona‟s S.B. 1070
law, which attempted to impose sanctions on unauthorized
workers, was conflict pre-empted); A.R.S. § 13-2928(E)
(providing that “[i]n the enforcement of [§ 5(C)], an alien‟s
immigration status may be determined . . . pursuant to 8
[U.S.C.] § 1373(c)”).
For the foregoing reasons, we again hold that the
housing provisions conflict with federal law and are thus pre-
empted.
3. The Rental Registration Provisions in the
RO Are Field Pre-empted Even When
Divorced from the Harboring Provisions
in the IIRAO.
The approach throughout this litigation has been to
consider the relevant housing provisions in the RO in
conjunction with those in the IIRAO. Nonetheless, it is
theoretically possible that the rental registration scheme in the
RO may not conflict with federal immigration law if divorced
from the harboring provisions and sanctions in the IIRAO.30
30
See Arizona, 132 S. Ct. at 2508-09 (vacating
injunction against § 2(B) of Arizona‟s S.B. 1070 law because
Congress “has encouraged the sharing of information
[between federal and state officials] about possible
immigration violations” and § 2(B) could be read to avoid
constitutional concerns); 8 U.S.C. § 1357(g)(10)(A)-(B)
(requiring no formal agreement for state and local authorities
to “communicate with the Attorney General regarding the
immigration status of any individual” or “otherwise to
44
However, we conclude that the housing provisions in the RO,
even if considered separately from the anti-harboring
provisions in the IIRAO, are pre-empted because they intrude
upon the field occupied by federal alien registration law. 31
As we have explained, the RO requires those seeking
to occupy rental housing to register with the City and obtain
an occupancy permit. To obtain an occupancy permit, the
applicant need only pay the requisite registration fee and
submit the name and address of the prospective occupant, the
name of the landlord, the address of the rental unit, and
“proof of legal citizenship and/or residency.” RO § 7b. As
the City itself points out, under the terms of the RO alone, all
applicants are issued an occupancy permit upon providing the
required information and the requisite fee—even if the
applicant indicates that she lacks legal status. Those who
occupy rental housing without complying with this
registration scheme are subject to fines of $100 to $300, or
imprisonment for up to 90 days in default of payment. RO §
10a. Thus, the rental registration scheme of the RO standing
alone operates as a requirement that a subset of Hazleton‟s
population—those residing in rental housing—register their
immigration status with the City.
cooperate with the Attorney General in the identification,
apprehension, detention, or removal of aliens not lawfully
present in the United States”).
31
We previously concluded that “[t]he sole
severability issue Hazleton has not waived concerns the
IIRAO‟s private cause of action.” Lozano II, 620 F.3d at 182.
As we explained in supra note 5, that holding is not at issue
here. However, we acknowledge that our prior severability
holding may not necessarily foreclose a decision to uphold
the RO, and the rental registration scheme, if considered
separately from the related anti-harboring provisions in the
IIRAO. Indeed, those provisions appear in separate statutes.
This does not impact the outcome here, however, because, as
we explain below, the rental registration scheme in the RO is
itself field pre-empted.
45
It is beyond dispute that states and localities may not
intrude in the field of alien registration. Arizona, 132 S. Ct. at
2502 (reiterating holding in Hines, 312 U.S. at 70, that “the
Federal Government has occupied the field of alien
registration”). Thus, in Arizona, the Supreme Court found
pre-empted § 3 of Arizona‟s S.B. 1070 law, which forbade
“willful failure to complete or carry an alien registration
document” in violation of federal law. Arizona, 132 S. Ct.
2501. Hazleton‟s rental registration scheme similarly
intrudes into the field of alien registration. One of the rental
registration scheme‟s primary functions is to require rental
housing occupants to report their immigration status to the
City of Hazleton and penalize the failure to register and
obtain an occupancy permit pursuant to that requirement.
This attempt to create a local alien registration requirement is
field pre-empted.
In arguing that the RO is nothing like an alien
registration system, the City claims “the most notable
difference” is that the RO applies equally to citizens and
aliens alike while the federal Alien Registration Act applies
only to noncitizens.32 We are not persuaded. It is highly
unlikely that the local registration laws invalidated on field
pre-emption grounds in Hines or Arizona would have been
upheld if they applied to citizens and aliens alike. The RO‟s
registration scheme cannot avoid pre-emption merely because
it requires both citizens and noncitizens to declare their
immigration status.33 The City also argues that a finding that
32
The Court of Appeals for the Eighth Circuit adopted
this argument and concluded that a similar rental registration
scheme is not field pre-empted. See Keller, 2013 WL
3242111, at *6 (“The occupancy license scheme at issue is
nothing like the state registration laws invalidated in Hines
and in Arizona [because it] requires all renters, including U.S.
citizens and nationals, to obtain an occupancy license. . . . ).
33
Indeed, Hazleton‟s requirement that citizens, in
addition to non-citizens, register their immigration status is an
even worse transgression into the field of alien registration
law as it imposes burdens on U.S. citizens that are absent
from federal law. Since Congress has not seen fit to require
46
the RO constitutes an alien registration system is implausible
because it would require the invalidation of laws limiting
drivers‟ licenses to lawfully present aliens. This argument is
also unpersuasive. Basing eligibility for certain state
privileges on immigration status is distinct from requiring
aliens to register. The RO‟s rental registration scheme serves
no discernible purpose other than to register the immigration
status of a subset of the City‟s population. It can only be
viewed as an impermissible alien registration requirement.34
IV. Conclusion
For the reasons set forth above, we conclude that the
employment provisions in the IIRAO are distinguishable from
the Arizona law upheld in Whiting, and the Supreme Court‟s
reasoning in Whiting and Arizona does not otherwise
undermine our conclusion that both the employment and
housing provisions in the IIRAO and RO are pre-empted by
federal law. Accordingly, we will again affirm in part and
reverse in part the District Court‟s order permanently
enjoining Hazleton‟s enforcement of the IIRAO and RO.
V. Appendix
A. The Illegal Immigration Relief Act Ordinance
(Ordinance 2006-18, as amended by Ordinances 2006-40
and 2007-7)
U.S. citizens to prove their citizenship status before obtaining
rental housing, we are at a loss to understand Hazleton‟s
argument that imposing this burden on citizens saves the
RO‟s registration scheme from pre-emption.
34
The RO is also distinguishable from § 2(B) of
Arizona‟s S.B. 1070, which the Supreme Court did not enjoin
in Arizona. Section 2(B), unlike the rental registration
scheme in the RO, did not impose any registration obligation
on aliens. Rather, § 2(B) imposed only an obligation on local
police to verify the immigration status of persons stopped,
detained or arrested. Arizona, 132 S. Ct. at 2507-10.
47
ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
HAZLETON AS FOLLOWS:
SECTION 1. TITLE
This chapter shall be known and may be cited as the “City of
Hazleton Illegal Immigration Relief Act Ordinance.”
SECTION 2. FINDINGS AND DECLARATION OF
PURPOSE
The People of the City of Hazleton find and declare:
A. That state and federal law require that certain conditions
be met before a person may be authorized to work or reside in
this country.
B. That unlawful workers and illegal aliens, as defined by this
ordinance and state and federal law, do not normally meet
such conditions as a matter of law when present in the City of
Hazleton.
C. That unlawful employment, the harboring of illegal aliens
in dwelling units in the City of Hazleton, and crime
committed by illegal aliens harm the health, safety and
welfare of authorized U.S. workers and legal residents in the
City of Hazleton. Illegal immigration leads to higher crime
rates, subjects our hospitals to fiscal hardship and legal
residents to substandard quality of care, contributes to other
burdens on public services, increasing their cost and
diminishing their availability to legal residents, and
diminishes our overall quality of life.
D. That the City of Hazleton is authorized to abate public
nuisances and empowered and mandated by the people of
Hazleton to abate the nuisance of illegal immigration by
diligently prohibiting the acts and policies that facilitate
illegal immigration in a manner consistent with federal law
and the objectives of Congress.
E. That United States Code Title 8, subsection 1324(a)(1)(A)
48
prohibits the harboring of illegal aliens. The provision of
housing to illegal aliens is a fundamental component of
harboring.
F. This ordinance seeks to secure to those lawfully present in
the United States and this City, whether or not they are
citizens of the United States, the right to live in peace free of
the threat crime, to enjoy the public services provided by this
city without being burdened by the cost of providing goods,
support and services to aliens unlawfully present in the
United States, and to be free of the debilitating effects on
their economic and social well being imposed by the influx of
illegal aliens to the fullest extent that these goals can be
achieved consistent with the Constitution and Laws of the
United States and the Commonwealth of Pennsylvania.
G. The City shall not construe this ordinance to prohibit the
rendering of emergency medical care, emergency assistance,
or legal assistance to any person.
SECTION 3. DEFINITIONS
When used in this chapter, the following words, terms and
phrases shall have the meanings ascribed to them herein, and
shall be construed so as to be consistent
with state and federal law, including federal immigration law:
A. “Business entity” means any person or group of persons
performing or engaging in any activity, enterprise, profession,
or occupation for gain, benefit, advantage, or livelihood,
whether for profit or not for profit.
(1) The term business entity shall include but not be
limited to selfemployed individuals, partnerships,
corporations, contractors, and subcontractors.
(2) The term business entity shall include any business
entity that possesses a business permit, any business entity
that is exempt by law from obtaining such a business
permit, and any business entity that is operating
unlawfully without such a business permit.
49
B. “City” means the City of Hazleton.
C. “Contractor” means a person, employer, subcontractor or
business entity that enters into an agreement to perform any
service or work or to provide a certain product in exchange
for valuable consideration. This definition shall include but
not be limited to a subcontractor, contract employee, or a
recruiting or staffing entity.
D. “Illegal Alien” means an alien who is not lawfully present
in the United States, according to the terms of United States
Code Title 8, section 1101 et seq. The City shall not conclude
that a person is an illegal alien unless and until an authorized
representative of the City has verified with the federal
government, pursuant to United States Code Title 8,
subsection 1373(c), that the person is an alien who is not
lawfully present in the United States.
E. “Unlawful worker” means a person who does not have the
legal right or authorization to work due to an impediment in
any provision of federal, state or local law, including but not
limited to a minor disqualified by nonage, or an unauthorized
alien as defined by United States Code Title 8, subsection
1324a(h)(3).
F. “Work” means any job, task, employment, labor, personal
services, or any other activity for which compensation is
provided, expected, or due, including but not limited to all
activities conducted by business entities.
G. “Basic Pilot Program” means the electronic verification of
work authorization program of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996, P.L.
104-208, Division C, Section 403(a); United States Code
Title 8, subsection 1324a, and operated by the United States
Department of Homeland Security (or a successor program
established by the federal government.)
SECTION 4. BUSINESS PERMITS, CONTRACTS, OR
GRANTS
50
A. It is unlawful for any business entity to knowingly recruit,
hire for employment, or continue to employ, or to permit,
dispatch, or instruct any person who is an unlawful worker to
perform work in whole or part within the City. Every business
entity that applies for a business permit to engage in any type
of work in the City shall sign an affidavit, prepared by the
City Solicitor, affirming that they do not knowingly utilize
the services or hire any person who is an unlawful worker.
B. Enforcement: The Hazleton Code Enforcement Office
shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint to the Hazleton Code
Enforcement Office submitted by any City official,
business entity, or City resident. A valid complaint shall
include an allegation which describes the alleged
violator(s) as well as the actions constituting the violation,
and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of
national origin, ethnicity, or race shall be deemed invalid
and shall not be enforced.
(3) Upon receipt of a valid complaint, the Hazleton Code
Enforcement Office shall, within three business days,
request identity information from the business entity
regarding any persons alleged to be unlawful workers. The
Hazleton Code Enforcement Office shall suspend the
business permit of any business entity which fails, within
three business days after receipt of the request, to provide
such information. In instances where an unlawful worker
is alleged to be an unauthorized alien, as defined in United
States Code Title 8, subsection 1324a(h)(3), the Hazleton
Code Enforcement Office shall submit identity data
required by the federal government to verify, pursuant to
United States Code Title 8, section 1373, the immigration
status of such person(s), and shall provide the business
entity with written confirmation of that verification.
(4) The Hazleton Code Enforcement Office shall suspend
the business permit of any business entity which fails
correct a violation of this section within three business
days after notification of the violation by the Hazleton
51
Code Enforcement Office.
(5) The Hazleton Code Enforcement Office shall not
suspend the business permit of a business entity if, prior to
the date of the violation, the business entity had verified
the work authorization of the alleged unlawful worker(s)
using the Basic Pilot Program.
(6) The suspension shall terminate one business day after
a legal representative of the business entity submits, at a
City office designated by the City Solicitor, a sworn
affidavit stating that the violation has ended.
(a) The affidavit shall include a description of the
specific measures and actions taken by the business
entity to end the violation, and shall include the name,
address and other adequate identifying information of
the unlawful workers related to the complaint.
(b) Where two or more of the unlawful workers were
verified by the federal government to be unauthorized
aliens, the legal representative of the business entity
shall submit to the Hazleton Code Enforcement Office,
in addition to the prescribed affidavit, documentation
acceptable to the City Solicitor which confirms that the
business entity has enrolled in and will participate in
the Basic Pilot Program for the duration of the validity
of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Hazleton
Code Enforcement Office shall suspend the business
permit of a business entity for a period of twenty days.
After the end of the suspension period, and upon receipt of
the prescribed affidavit, the Hazleton Code Enforcement
Office shall reinstate the business permit. The Hazleton
Code Enforcement Office shall forward the affidavit,
complaint, and associated documents to the appropriate
federal enforcement agency, pursuant to United States
Code Title 8, section 1373. In the case of an unlawful
worker disqualified by state law not related to
immigration, the Hazleton Code Enforcement Office shall
forward the affidavit, complaint, and associated
documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the
Basic Pilot Program.
52
D. As a condition for the award of any City contract or grant
to a business entity for which the value of employment, labor
or, personal services shall exceed $10,000, the business entity
shall provide documentation confirming its enrollment and
participation in the Basic Pilot Program.
E. Private Cause of Action for Unfairly Discharged
Employees
(1) The discharge of any employee who is not an unlawful
worker by a business entity in the City is an unfair
business practice if, on the date of the discharge, the
business entity was not participating in the Basic Pilot
program and the business entity was employing an
unlawful worker.
(2) The discharged worker shall have a private cause of
action in the Municipal Court of Hazleton against the
business entity for the unfair business practice. The
business entity found to have violated this subsection shall
be liable to the aggrieved employee for:
(a) three times the actual damages sustained by the
employee, including but not limited to lost wages or
compensation from the date of the discharge until the
date the employee has procured new employment at an
equivalent rate of compensation, up to a period of one
hundred and twenty days; and
(b) reasonable attorney‟s fees and costs.
SECTION 5. HARBORING ILLEGAL ALIENS
A. It is unlawful for any person or business entity that owns a
dwelling unit in the City to harbor an illegal alien in the
dwelling unit, knowing or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United States
in violation of law, unless such harboring is otherwise
expressly permitted by federal law.
(1) For the purposes of this section, to let, lease, or rent a
dwelling unit to an illegal alien, knowing or in reckless
disregard of the fact that an alien has come to, entered, or
53
remains in the United States in violation of law, shall be
deemed to constitute harboring. To suffer or permit the
occupancy of the dwelling unit by an illegal alien,
knowing or in reckless disregard of the fact that an alien
has come to, entered, or remains in the United States in
violation of law, shall also be deemed to constitute
harboring.
(2) A separate violation shall be deemed to have been
committed on each day that such harboring occurs, and for
each adult illegal alien harbored in the dwelling unit,
beginning one business day after receipt of a notice of
violation from the Hazleton Code Enforcement Office.
(3) A separate violation of this section shall be deemed to
have been committed for each business day on which the
owner fails to provide the Hazleton Code Enforcement
Office with identity data needed to obtain a federal
verification of immigration status, beginning three days
after the owner receives written notice from the Hazleton
Code Enforcement Office.
B. Enforcement: The Hazleton Code Enforcement Office
shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint to the Hazleton Code
Enforcement Office submitted by any official, business
entity, or resident of the City. A valid complaint shall
include an allegation which describes the alleged
violator(s) as well as the actions constituting the violation,
and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of
national origin, ethnicity, or race shall be deemed invalid
and shall not be enforced.
(3) Upon receipt of a valid written complaint, the
Hazleton Code Enforcement Office shall, pursuant to
United States Code Title 8, section 1373(c), verify with
the federal government the immigration status of a person
seeking to use, occupy, lease, or rent a dwelling unit in the
City. The Hazleton Code Enforcement Office shall submit
identity data required by the federal government to verify
immigration status. The City shall forward identity data
54
provided by the owner to the federal government, and
shall provide the property owner with written
confirmation of that verification.
(4) If after five business days following receipt of written
notice from the City that a violation has occurred and that
the immigration status of any alleged illegal alien has been
verified, pursuant to United States Code Title 8, section
1373(c), the owner of the dwelling unit fails to correct a
violation of this section, the Hazleton Code Enforcement
Office shall deny or suspend the rental license of the
dwelling unit.
(5) For the period of suspension, the owner of the
dwelling unit shall not be permitted to collect any rent,
payment, fee, or any other form of compensation from, or
on behalf of, any tenant or occupant in the dwelling unit.
(6) The denial or suspension shall terminate one business
day after a legal representative of the dwelling unit owner
submits to the Hazleton Code Enforcement Office a sworn
affidavit stating that each and every violation has ended.
The affidavit shall include a description of the specific
measures and actions taken by the business entity to end
the violation, and shall include the name, address and
other adequate identifying information for the illegal
aliens who were the subject of the complaint.
(7) The Hazleton Code Enforcement Office shall forward
the affidavit, complaint, and associated documents to the
appropriate federal enforcement agency, pursuant to
United States Code Title 8, section 1373.
(8) Any dwelling unit owner who commits a second or
subsequent violation of this section shall be subject to a
fine of two hundred and fifty dollars ($250) for each
separate violation. The suspension provisions of this
section applicable to a first violation shall also apply.
(9) Upon the request of a dwelling unit owner, the
Hazleton Code Enforcement Office shall, pursuant to
United States Code Title 8, section 1373(c), verify with
the federal government the lawful immigration status of a
person seeking to use, occupy, lease, or rent a dwelling
unit in the City. The penalties in this section shall not
apply in the case of dwelling unit occupants whose status
as an alien lawfully present in the United States has been
55
verified.
SECTION 6. CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this section shall be
implemented in a manner fully consistent with federal law
regulating immigration and protecting the civil rights of all
citizens and aliens.
B. If any part of provision of this Chapter is in conflict or
inconsistent with applicable provisions of federal or state
statutes, or is otherwise held to be invalid or unenforceable by
any court of competent jurisdiction, such part of provision
shall be suspended and superseded by such applicable laws or
regulations, and the remainder of this Chapter shall not be
affected thereby.
SECTION 7. IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption
with respect to Ordinances of the City of Hazleton—that such
Ordinances shall apply only prospectively—shall pertain to
the Illegal Immigration Relief Act Ordinance. The Illegal
Immigration Relief Act Ordinance shall be applied only to
employment contracts, agreements to perform service or
work, and agreements to provide a certain product in
exchange for valuable consideration that are entered into or
are renewed after the date that the Illegal Immigration Relief
Act Ordinance becomes effective and any judicial injunction
prohibiting its implementation is removed. The Illegal
Immigration Relief Act Ordinance shall be applied only to
contracts to let, lease, or rent dwelling units that are entered
into or are renewed after the date that the Illegal Immigration
Relief Act Ordinance becomes effective and any judicial
injunction prohibiting its implementation is removed. The
renewal of a month-to-month lease or other type of tenancy
which automatically renews absent notice by either party will
not be considered as entering into a new contract to let, lease
or rent a dwelling unit.
B. Condition of Lease. Consistent with the obligations of a
56
rental unit owner described in Section 5.A., a tenant may not
enter into a contract for the rental or leasing of a dwelling unit
unless the tenant is either a U.S. citizen or an alien lawfully
present in the United States according to the terms of United
States Code Title 8, Section 1101 et seq. A tenant who is
neither a U.S. citizen nor an alien lawfully present in the
United States who enters into such a contract shall be deemed
to have breached a condition of the lease under 68 P.S.
Section 250.501. A tenant who is not a U.S. citizen who
subsequent to the beginning of his tenancy becomes
unlawfully present in the United States shall be deemed to
have breached a condition of the lease under 68 P.S. Section
250.501.
C. Corrections of Violations—Employment of Unlawful
Workers. The correction of a violation with respect to the
employment of an unlawful worker shall include any of the
following actions:
(1) The business entity terminates the unlawful worker‟s
employment.
(2) The business entity, after acquiring additional
information from the worker, requests a secondary or
additional verification by the federal government of the
worker‟s authorization, pursuant to the procedures of the
Basic Pilot Program. While this verification is pending,
the three business day period described in Section 4.B.(4)
shall be tolled.
(3) The business entity attempts to terminate the unlawful
worker‟s employment and such termination is challenged
in a court of the Commonwealth of Pennsylvania. While
the business entity pursues the termination of the unlawful
worker‟s employment in such forum, the three business
day period described in Section 4.B.(4) shall be tolled.
D. Corrections of Violations—Harboring Illegal Aliens. The
correction of a violation with respect to the harboring of an
illegal alien in a dwelling unit shall include any of the
following actions:
(1) A notice to quit, in writing, issued and served by the
57
dwelling unit owner, as landlord, to the tenant declaring a
forfeiture of the lease for breach of the lease condition
describe in Section 7.B.
(2) The dwelling unit owner, after acquiring additional
information from the alien, requests the City of Hazleton
to obtain a secondary or additional verification by the
federal government that the alien is lawfully present in the
United States, under the procedures designated by the
federal government, pursuant to United States Code Title
8, Subsection 1373(c). While this second verification is
pending, the five business day period described in Section
5.B.(4) shall be tolled.
(3) The commencement of an action for the recovery of
possession of real property in accordance with
Pennsylvania law by the landlord against the illegal alien.
If such action is contested by the tenant in court, the
dwelling unit owner shall be deemed to have complied
with this Ordinance while the dwelling unit owner is
pursuing the action in court. While this process is pending,
the five business day period described in Section 5.B.(4)
shall be tolled.
E. Procedure if Verification is Delayed. If the federal
government notifies the City of Hazleton that it is unable to
verify whether a tenant is lawfully present in the United
States or whether an employee is authorized to work in the
United States, the City of Hazleton shall take no further
action on the complaint until a verification from the federal
government concerning the status of the individual is
received. At no point shall any City official attempt to make
an independent determination of any alien‟s legal status,
without verification from the federal government, pursuant to
United States Code Title 8, Subsection 1373(c).
F. Venue for Judicial Process. Any business entity or rental
unit owner subject to a complaint and subsequent
enforcement under this ordinance, or any employee of such a
business entity or tenant of such a rental unit owner, may
challenge the enforcement of this Ordinance with respect to
such entity or individual in the Magisterial District Court for
the City of Hazleton, subject to the right of appeal to the
58
Luzerne County Court of Common Pleas. Such an entity or
individual may alternatively challenge the enforcement of this
Ordinance with respect to such entity or individual in any
other court of competent jurisdiction in accordance with
applicable law, subject to all rights of appeal.
G. Deference to Federal Determinations of Status. The
determination of whether a tenant of a dwelling is lawfully
present in the United States, and the determination of whether
a worker is an unauthorized alien shall be made by the federal
government, pursuant to United States Code Title 8,
Subsection 1373(c). A determination of such status of an
individual by the federal government shall create a rebuttable
presumption as to that individual‟s status in any judicial
proceedings brought pursuant to this ordinance. The Court
may take judicial notice of any verification of the individual
previously provided by the federal government and may
request the federal government to provide automated or
testimonial verification pursuant to United States Code Title
8, Subsection 1373(c).
B. Rental Registration Ordinance (Ordinance 2006-13)
ESTABLISHING A REGISTRATION PROGRAM FOR
RESIDENTIAL RENTAL PROPERTIES; REQUIRING
ALL OWNERS OF RESIDENTIAL RENTAL
PROPERTIES TO DESIGNATE AN AGENT FOR
SERVICE OF PROCESS; AND PRESCRIBING DUTIES
OF OWNERS, AGENTS AND OCCUPANTS; DIRECTING
THE DESIGNATION OF AGENTS; ESTABLISHING
FEES FOR THE COSTS ASSOCIATED WITH THE
REGISTRATION OF RENTAL PROPERTY; AND
PRESCRIBING PENALTIES FOR VIOLATIONS BE IT
ORDAINED BY THE GOVERNING BODY OF THE CITY
OF HAZLETON AND IT IS HEREBY ORDAINED AND
WITH THE AUTHORITY OF THE SAME AS FOLLOWS:
SECTION 1. DEFINITIONS AND INTERPRETATION.
The following words, when used in this ordinance, shall have
59
the meanings ascribed to them in this section, except in those
instances where the context clearly indicates otherwise. When
not inconsistent with the context, words used in the present
tense include the future; words in the plural number include
the singular number; words in the singular shall include the
plural, and words in the masculine shall include the feminine
and the neuter.
a. AGENT—Individual of legal majority who has been
designated by the Owner as the agent of the Owner or
manager of the Property under the provisions of this
ordinance.
b. CITY—City of Hazleton
c. CITY CODE—the building code (property Maintenance
Code 1996 as amended or superceded) officially adopted by
the governing body of the City, or other such codes officially
designated by the governing body of the City for the
regulation of construction, alteration, addition, repair,
removal, demolition, location, occupancy and maintenance of
buildings and structures.
d. ZONING ORDINANCE—Zoning ordinance as officially
adopted by the City of Hazleton, File of Council # 95-26 (as
amended).
e. OFFICE—The Office of Code Enforcement for the City of
Hazleton.
f. DWELLING UNIT—a single habitable unit, providing
living facilities for one or more persons, including permanent
space for living, sleeping, eating, cooking and bathing and
sanitation, whether furnished or unfurnished. There may be
more than one Dwelling Unit on a Premises.
g. DORMITORY—a residence hall offered as student or
faculty housing to accommodate a college or university,
providing living or sleeping rooms for individuals or groups
of individuals, with or without cooking facilities and with or
without private baths.
60
h. INSPECTOR—any person authorized by Law or
Ordinance to inspect buildings or systems, e.g. zoning,
housing, plumbing, electrical systems, heat systems,
mechanical systems and health necessary to operate or use
buildings within the City of Hazleton. An Inspector would
include those identified in Section 8—Enforcement.
i. FIRE DEPARTMENT—the Fire Department of the City of
Hazleton or any member thereof, and includes the Chief of
Fire or his designee.
j. HOTEL—a building or part of a building in which living
and sleeping accommodations are used primarily for transient
occupancy, may be rented on a daily basis, and desk service is
provided, in addition to one or more of the following services:
maid, telephone, bellhop service, or the furnishing or
laundering of linens.
k. LET FOR OCCUPANCY—to permit, provide or offer, for
consideration, possession or occupancy of a building,
dwelling unit, rooming unit, premise or structure by a person
who is not the legal owner of record thereof, pursuant to a
written or unwritten lease, agreement or license, or pursuant
to a recorded or unrecorded agreement or contract for the sale
of land.
l. MOTEL—a building or group of buildings which contain
living and sleeping accommodations used primarily for
transient occupancy, may be rented on a daily basis, and desk
service is provided, and has individual entrances from outside
the building to serve each such living or sleeping unit.
m. OCCUPANT—a person age 18 or older who resides at a
Premises.
n. OPERATOR—any person who has charge, care or control
of a Premises which is offered or let for occupancy.
o. OWNER—any Person, Agent, or Operator having a legal
or equitable interest in the property; or recorded in the official
61
records of the state, county, or municipality as holding title to
the property; or otherwise having control of the property,
including the guardian of the estate of any such person, and
the executor or administrator of the estate of such person if
ordered to take possession of real property by a Court of
competent jurisdiction.
p. OWNER-OCCUPANT—an owner who resides in a
Dwelling Unit on a regular permanent basis, or who
otherwise occupies a nonresidential portion of the Premises
on a regular permanent basis.
q. PERSON—any person, partnership, firm, association,
corporation, or municipal authority or any other group acting
as a single unit.
r. POLICE DEPARTMENT—the Police Department of the
City of Hazleton or any member thereof sworn to enforce
laws and ordinances in the City, and includes the Chief of
Police or his designee.
s. PREMISES—any parcel of real property in the City,
including the land and all buildings and structures in which
one or more Rental Units are located.
t. RENTAL UNIT—means a Dwelling Unit or Rooming Unit
which is Let for Occupancy and is occupied by one or more
Tenants.
u. ROOMING UNIT—any room or groups of rooms forming
a single habitable unit occupied or intended to be occupied
for sleeping or living, but not for cooking purposes.
v. TENANT—any Person authorized by the Owner or Agent
who occupies a Rental Unit within a Premises regardless of
whether such Person has executed a lease for said Premises.
SECTION 2. APPOINTMENT OF AN AGENT AND/OR
MANAGER
Each Owner who is not an Owner-occupant, or who does not
62
reside in the City of Hazleton or within a ten (10) mile air
radius of the City limits, shall appoint an Agent who shall
reside in the City or within a ten (10) mile air radius of the
City limits.
SECTION 3. DUTIES OF THE OWNER AND/OR AGENT
a. The Owner has the duty to maintain the Premises in good
repair, clean and sanitary condition, and to maintain the
Premises in compliance with the current Codes, Building
Codes and Zoning Ordinance of the City of Hazleton. The
Owner may delegate implementation of these responsibilities
to an Agent.
b. The duties of the Owner and/or Agent shall be to receive
notices and correspondence, including service of process,
from the City of Hazleton; to arrange for the inspection of the
Rental Units; do or arrange for the performance of
maintenance, cleaning, repair, pest control, snow and ice
removal, and ensure continued compliance of the Premises
with the current Codes, Building Codes and Zoning
Ordinance in effect in the City of Hazleton, as well as arrange
for garbage removal.
c. The name, address and telephone number of the Owner and
Agent, if applicable, shall be reported to the Code
Enforcement Office in writing upon registering the Rental
Units.
d. No Dwelling Unit shall be occupied, knowingly by the
Owner or Agent, by a number of persons that is in excess of
the requirements outlined in 2003 International Property
Maintenance Code, Chapter 4, Light, Ventilation, and
Occupancy Limits, Section PM-404.5, Overcrowding, or any
update thereof, a copy of which is appended hereto and made
a part hereof.
SECTION 4. NOTICES
a. Whenever an Inspector or Code Enforcement Officer
determines that any Rental Unit or Premises fails to meet the
63
requirements set forth in the applicable Codes, the Inspector
or Code Enforcement Officer shall issue a correction notice
setting forth the violations and ordering the Occupant, Owner
or Agent, as appropriate, to correct such violations. The
notice shall:
1) Be in writing;
2) Describe the location and nature of the violation;
3) Establish a reasonable time for the correction of the
violation.
b. All notices shall be served upon the Occupant, Owner or
Agent, as applicable, personally or by certified mail, return
receipt requested. A copy of any notices served solely on an
Occupant shall also be provided to the Owner or Agent. In the
event service is first attempted by mail and the notice is
returned by the postal authorities marked “unclaimed” or
“refused”, then the Code Enforcement Office or Police
Department shall attempt delivery by personal service on the
Occupant, Owner or Agent, as applicable. The Code
Enforcement Office shall also post the notice at a conspicuous
place on the Premises. If personal service directed to the
Owner or Agent cannot be accomplished after a reasonable
attempt to do so, then the notice may be sent to the Owner or
Agent, as applicable, at the address stated on the most current
registration application for the Premises in question, by
regular first class mail, postage prepaid. If such notice is not
returned by the postal authorities within five (5) days of its
deposit in the U.S. Mail, then it shall be deemed to have been
delivered to and received by the addressee on the fifth day
following its deposit in the United States Mail.
c. For purposes of this Ordinance, any notice hereunder that is
given to the Agent shall be deemed as notice given to the
Owner.
d. There shall be a rebuttable presumption that any notice that
is given to the Occupant, Owner or Agent under this
ordinance shall have been received by such Occupant, Owner
or Agent if the notice was served in the manner provided by
this ordinance.
64
e. Subject to paragraph 4.d above, a claimed lack of
knowledge by the Owner or Agent, if applicable, of any
violation hereunder cited shall be no defense to closure of
rental units pursuant to Section 9, as long as all notices
prerequisite to such proceedings have been given and deemed
received in accordance with the provisions of this ordinance.
f. All notices shall contain a reasonable time to correct, or
take steps to correct, violations of the above. The Occupant,
Owner or Agent to whom the notice was addressed may
request additional time to correct violations. Requests for
additional time must be in writing and either deposited in the
U.S. Mail (post-marked) or handdelivered to the Code
Enforcement Office within five (5) days of receipt of the
notice by the Occupant, Owner or Agent. The City retains the
right to deny or modify time extension requests. If the
Occupant, Owner or Agent is attempting in good faith to
correct violations but is unable to do so within the time
specified in the notice, the Occupant, Owner or Agent shall
have the right to request such additional time as may be
needed to complete the correction work, which request shall
not be unreasonably withheld.
g. Failure to correct violations within the time period stated in
the notice of violation shall result in such actions or penalties
as are set forth in Section 10 of this ordinance. If the notice of
violation relates to actions or omissions of the Occupant, and
the Occupant fails to make the necessary correction, the
Owner or Agent may be required to remedy the condition. No
adverse action shall be taken against an Owner or Agent for
failure to remedy a condition so long as the Owner or Agent
is acting with due diligence and taking bona fide steps to
correct the violation, including but not limited to pursuing
remedies under a lease agreement with an Occupant or
Tenant. The City shall not be precluded from pursuing an
enforcement action against any Occupant or Tenant who is
deemed to be in violation.
SECTION 5. INSURANCE
65
In order to protect the health, safety and welfare of the
residents of the City, it is hereby declared that the city shall
require hazard and general liability insurance for all property
owners letting property for occupancy in the City.
a. Minimum coverage; use of insurance proceeds. All Owners
shall be required to obtain a minimum of fifty thousand
($50,000.00) dollars in general liability insurance, and hazard
and casualty insurance in an amount sufficient to either
restore or remove the building in the event of a fire or other
casualty. Further, in the event of any fire or loss covered by
such insurance, it shall be the obligation of the Owner to use
such insurance proceeds to cause the restoration or demolition
or other repair of the property in adherence to the City Code
and all applicable ordinances.
b. Property owners to provide City with insurance
information. Owners shall be required to place their insurance
company name, policy number and policy expiration date on
their Rental Property Registration form, or in the alternative,
to provide the Code Enforcement Office with a copy of a
certificate of insurance. A registration Certificate (see Section
6 below) shall not be issued to any Owner or Agent unless the
aforementioned information has been provided to the Code
Enforcement Office. The Code Enforcement Office shall be
informed of any change in policies for a particular rental
property or cancellation of a policy for said property within
thirty (30) days of said change or cancellation.
SECTION 6. RENTAL REGISTRATION AND LICENSE
REQUIREMENTS
a. No Person shall hereafter occupy, allow to be occupied,
advertise for occupancy, solicit occupants for, or let to
another person for occupancy any Rental Unit within the City
for which an application for license has not been made and
filed with the Code Enforcement Office and for which there is
not an effective license. Initial application and renewal shall
be made upon forms furnished by the Code Enforcement
Office for such purpose and shall specifically require the
following minimum information:
66
1) Name, mailing address, street address and phone
number of the Owner, and if the Owner is not a natural
person, the name, address and phone number of a
designated representative of the Owner.
2) Name, mailing address, street address and phone
number of the Agent of the Owner, if applicable.
3) The street address of the Premises being registered.
4) The number and types of units within the Premises
(Dwelling Units or Rooming Units) The Owner or Agent
shall notify the Code Enforcement Office of any changes
of the above information within thirty (30) days of such
change.
b. The initial application for registration and licensing shall
be made by personally filing an application with the Code
Enforcement Office by November 1, 2006. Thereafter, any
new applicant shall file an application before the Premises is
let for occupancy, or within thirty (30) days of becoming an
Owner of a currently registered Premises. One application per
property is required, as each property will receive its own
license.
c. Upon receipt of the initial application or any renewal
thereof and the payment of applicable fees as set forth in
Section 7 below, the Code Enforcement Office shall issue a
Rental Registration License to the Owner within thirty (30)
days of receipt of payment.
d. Each new license issued hereunder, and each renewal
license, shall expire on October 31 of each year. The Code
Enforcement Office shall mail license renewal applications to
the Owner or designated Agent on or before September 1 of
each year. Renewal applications and fees may be returned by
mail or in person to the Code Enforcement Office. A renewal
license will not be issued unless the application and
appropriate fee has been remitted.
SECTION 7. FEES.
a. Annual License Fee. There shall be a license fee for the
67
initial license and an annual renewal fee thereafter. Fees shall
be assessed against and payable by the Owner in the amount
of $5.00 per Rental Unit, payable at the time of initial
registration and annual renewal, as more specifically set forth
in Section 6 above.
b. Occupancy Permit Fee. There shall be a one-time
occupancy permit fee of $10.00 for every new Occupant,
which is payable by the Occupant. For purposes of initial
registration under this ordinance, this fee shall be paid for all
current Occupants by November 1, 2006. Thereafter, prior to
occupying any Rental Unit, all Occupants shall obtain an
occupancy permit. It shall be the Occupant‟s responsibility to
submit an occupancy permit application to the Code
Enforcement Office, pay the fee and obtain the occupancy
permit. If there are multiple Occupants in a single Rental
Unit, each Occupant shall obtain his or her own permit.
Owner or Agent shall notify all prospective Occupants of this
requirement and shall not permit occupancy of a Rental Unit
unless the Occupant first obtains an occupancy permit. Each
occupancy permit issued is valid only for the Occupant for as
long as the Occupant continues to occupy the Rental Unit for
which such permit was applied. Any relocation to a different
Rental Unit requires a new occupancy permit. All Occupants
age 65 and older, with adequate proof of age, shall be exempt
from paying the permit fee, but shall be otherwise required to
comply with this section and the rest of the Ordinance.
1. Application for occupancy permits shall be made upon
forms furnished by the Code Enforcement Office for such
purpose and shall specifically require the following
minimum information:
a) Name of Occupant
b) Mailing address of Occupant
c) Street address of Rental Unit for which Occupant is
applying, if different from mailing address
d) Name of Landlord
e) Date of lease commencement
f) Proof of age if claiming exemption from the permit
fee
g) Proper identification showing proof of legal
68
citizenship and/or residency
2. Upon receipt of the application and the payment of
applicable fees as set forth above, the Code Enforcement
Office shall issue an Occupancy Permit to the Occupant
immediately.
SECTION 8. ENFORCEMENT
a. The following persons are hereby authorized to enforce this
Ordinance:
1. The Chief of Police
2. Any Police Officer
3. Code Enforcement Officer
4. The Fire Chief
5. Deputy Fire Chief of the City of Hazleton.
6. Health Officer
7. Director of Public Works
b. The designation of any person to enforce this Ordinance or
authorization of an Inspector, when in writing, and signed by
a person authorized by Section 8.a to designate or authorize
an Inspector to enforce this Ordinance, shall be prima facie
evidence of such authority before the Magisterial District
Judge, Court of Common Pleas, or any other Court,
administrative body of the City, or of this commonwealth,
and the designating Director or Supervisor need not be called
as a witness thereto.
SECTION 9. FAILURE TO CORRECT VIOLATIONS.
If any Person shall fail, refuse or neglect to comply with a
notice of violation as set forth in Section 4 above, the City
shall have the right to file an enforcement action with the
Magisterial District Judge against any Person the City deems
to be in violation. If, after hearing, the Magisterial District
Judge determines that such Person or Persons are in violation,
the Magisterial District Judge may, at the City‟s request,
order the closure of the Rental Unit(s), or assess fines in
accordance with Section 10 below, until such violations are
corrected. Such order shall be stayed pending any appeal to
69
the Court of Common Pleas of Luzerne County.
SECTION 10. FAILURE TO COMPLY WITH THIS
ORDINANCE; PENALTIES
a. Except as provided in subsections 10.b and 10.c below, any
Person who shall violate any provision of the Ordinance shall,
upon conviction thereof after notice and a hearing before the
Magisterial District Judge, be sentenced to pay a fine of not
less than $100.00 and not more than $300.00 plus costs, or
imprisonment for a term not to exceed ninety (90) days in
default of payment. Every day that a violation of this
Ordinance continues shall constitute a separate offense,
provided, however, that failure to register or renew or pay
appropriate fees in a timely manner shall not constitute a
continuing offense but shall be a single offense not subject to
daily fines.
b. Any Owner or Agent who shall allow any Occupant to
occupy a Rental Unit without first obtaining an occupancy
permit is in violation of Section 7.b and shall, upon
conviction thereof after notice and a hearing before the
Magisterial District Judge, be sentenced to pay a fine of
$1,000 for each Occupant that does not have an occupancy
permit and $100 per Occupant per day for each day that
Owner or Agent continues to allow each such Occupant to
occupy the Rental Unit without an occupancy permit after
Owner or Agent is given notice of such violation pursuant to
Section 4 above. Owner or Agent shall not be held liable for
the actions of Occupants who allow additional occupancy in
any Rental Unit without the Owner or Agent‟s written
permission, provided that Owner or Agent takes reasonable
steps to remove or register such unauthorized Occupant(s)
within ten (10) days of learning of their unauthorized
occupancy in the Rental Unit.
c. Any Occupant having an occupancy permit but who allows
additional occupancy in a Rental Unit without first obtaining
the written permission of the Owner or Agent and without
requiring each such additional Occupant to obtain his or her
own occupancy permit is in violation of Section 7.b of this
70
ordinance and shall, upon conviction thereof after notice and
a hearing before the Magisterial District Judge, be sentenced
to pay a fine of $1,000 for each additional Occupant
permitted by Occupant that does not have an occupancy
permit and $100 per additional Occupant per day for each day
that Occupant continues to allow each such additional
Occupant to occupy the Rental Unit without an occupancy
permit after Occupant is given written notice of such violation
by Owner or Agent or pursuant to Section 4 above.
SECTION 11. APPLICABILITY AND EXEMPTIONS TO
THE ORDINANCE
The provisions of the ordinance shall not apply to the
following properties, which are exempt from registration and
license requirements:
a. Hotels, Motels and Dormitories.
b. Rental Units owned by Public Authorities as defined under
the Pennsylvania Municipal Authorities Act, and Dwelling
Units that are part of an elderly housing multi-unit building
which is 75% occupied by individuals over the age of sixty-
five.
c. Multi-dwelling units that operate under Internal Revenue
Service Code Section 42 concerning entities that operate with
an elderly component.
d. Properties which consist of a double home, half of which is
let for occupancy and half of which is Owner-occupied as the
Owner‟s residence.
SECTION 12. CONFIDENTIALITY OF INFORMATION
All registration information collected by the City under this
Ordinance shall be maintained as confidential and shall not be
disseminated or released to any individual, group or
organization for any purpose except as provided herein or
required by law. Information may be released only to
authorized individuals when required during the course of an
71
official City, state or federal investigation or inquiry.
SECTION 13. SAVINGS CLAUSE
This ordinance shall not affect violations of any other
ordinance, code or regulation existing prior to the effective
date thereof and any such violations shall be governed and
shall continue to be punishable to the full extent of the law
under the provisions of those ordinances, codes or regulations
in effect at the time the violation was committed.
SECTION 14. SEVERABILITY
If any section, clause, provision or portion of this Ordinance
shall be held invalid or unconstitutional by any Court of
competent jurisdiction, such decision shall not affect any
other section, clause, provision or portion of this Ordinance
so long as it remains legally enforceable without the invalid
portion. The City reserves the right to amend this Ordinance
or any portion thereof from time to time as it shall deem
advisable in the best interest of the promotion of the purposes
and intent of this Ordinance, and the effective administration
thereof.
SECTION 15. EFFECTIVE DATE
This Ordinance shall become effective immediately upon
approval. This Ordinance repeals Ordinance number 2004-11
and replaces same in its entirety.
SECTION 16.
This Ordinance is enacted by the Council of the City of
Hazleton under the authority of the Act of Legislature, April
13, 1972, Act No. 62, known as the “Home Rule Charter and
Optional Plans Law”, and all other laws enforceable the State
of Pennsylvania.
72
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829 F.2d 37Unpublished 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.UNITED STATES of America, Plaintiff-Appellee,v.Belinda PATTERSON, Defendant-Appellant.
No. 87-5034
United States Court of Appeals, Fourth Circuit.
Submitted July 27, 1987.Decided September 9, 1987.
George Douglas Varoutsos, on brief), for appellant.
Henry E. Hudson, United States Attorney, Frank J. Bove, Attorney, United States Department of Justice, on brief, for appellee.
Before DONALD RUSSELL, ERVIN and WILKINSON, Circuit Judges.
PER CURIAM:
1
Belinda Patterson appeals her convictions for attempting to introduce PCP and marijuana into Lorton Reformatory and for possession of both substances with intent to distribute. The sole issue on appeal is whether the district court erred in allowing evidence concerning Patterson's familiarity with PCP and marijuana. We affirm.
2
The questions objected to were, 'You know what phencyclidine [PCP] and marijuana are, correct?' and 'Have you seen them?' Patterson objected to the questions, but her objections were overruled. She answered each question affirmatively.
3
On appeal, she insists that the prejudice resulting from this evidence outweighed its probative value and thus violated Fed. R. Evid. 404(b). See United States v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986), cert. denied, ---- U.S. ----, 55 U.S.L.W. 3644 (March 23, 1987). We disagree. Evidence potentially much more prejudicial to a criminal defendant has been found admissible under Rule 404(b). See, e.g., United States v. Hines, 717 F.2d 1481, 1489 (4th Cir. 1983), cert. denied, 467 U.S. 1214 (1984); United States v. Hardaway, 681 F.2d 214, 217 (4th Cir. 1981).
4
As the dispositive issue recently has been decided authoritatively, we dispense with oral argument.
5
AFFIRMED.
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216 F.2d 212
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.J. E. McCATRON, R. F. Nine and M. M. Dinkel, Co-partners,d/b/a Price Valley Lumber Co., and J. E. McCatron, R. F.Nine, Loren Weeks and Lloyd Urquarht, Co-partners, d/b/aIdaho Pine Moulding Co., Respondents.
No. 14166.
United States Court of Appeals, Ninth Circuit.
Oct. 13, 1954.
George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Bernard Dunau, Thomas R. Haley and Frederick Reel, Attys., N.L.R.B., Washington, D.C., for petitioner.
Eli A. Weston, Boise, Idaho, for respondents.
Before BONE, ORR and POPE, Circuit Judges.
1
ORR Circuit Judge.
2
Price Valley Lumber Company and Idaho Pine Moulding Company are partnerships. Price Valley has its principal office in Tamarack, Idaho, and engages in the business of logging, and the operation of a sawmill and a planing mill. Idaho Pine is a small operation in which the major partners in Price Valley own a half interest. It was organized for the purpose of salvaging some profit from the 'edgings' which are a by-product of the Price Valley mill operations through the manufacture of mouldings. Idaho Pine operates in a separate building on the Price Valley premises. It has three employees, two of whom work in the Price Valley planing mill. Its books are kept by a Price Valley employee and its pay checks are drawn on Price Valley. Idaho Pine receives all its power and raw materials from Price Valley. During the period relevant to this case a common control of labor relations existed between the two partnerships. The National Labor Relations Board decided that the two partnerships should be treated as one employer within the meaning of § 2(2) of the National Labor Relations Act, 29 U.S.C.A. § 152(2), hereafter the Act. The Board's ruling in this regard is correct and it properly exercised jurisdiction as to both. After a hearing, the Board found that respondent partners had violated § 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1, 3), and entered a cease and desist order. It required the partnerships to take affirmative action by offering reinstatement to certain discharged employees, making them whole for loss of pay, and posting appropriate notices. The Board's decision and order are reported in 106 N.L.R.B. No. 8.
3
The facts disclose that prior to July 24, 1952, there had been no significant union activity among the employees. An organizational drive was commenced on that date. On August 11th the Union filed a representation petition. On August 13th it held a meeting for the purpose of enrolling members and collecting dues. At this meeting employee Patton engaged in a heated altercation with an uninvited guest, Stanley Whetmore, the son of sawmill foreman Walt Whetmore. When in the course of this altercation Patton stated that he would not quit but would have to be fired, Stanley Whetmore replied: 'That can be arranged.'
4
On the next day, August 14th, Patton was discharged by Cooper, the planing mill foreman, for reasons which the Trial Examiner found to constitute good cause. Cooper did not at that time know of the incident of the preceding night. Patton informed the planing mill employees of his discharge and the union men in the planing mill erroneously concluded that Patton had been discharged for union activity and in consequence of the incident of the preceding night. At this time employee Murphy, the spokesman for what we shall designate the Murphy group, informed Ingle, the yard foreman and sales manager, that the Murphy group was 'striking in protest of Jimmy (Patton) being fired, and for recognition of the A.F.L. as our bargaining agent.' The Murphy group then left the premises and went to the nearby town of New Meadows.
5
A little later the union men working in the sawmill, hearing of the incident, determined that they too should walk out. As they left the sawmill they met Nine, one of the partners. Nine said he thought the thing could be straightened out. It was agreed that these men should go back to work and that the Murphy group should be rounded up and brought to the plant. The Murphy group returned from New Meadows. The situation remained static awaiting the arrival of McCatron, a partner holding a majority interest in the business, who was coming from the woods to the mills. He arrived in late afternoon. The employees by that time had deployed into two groups, the Murphy group with some additions and the remainder of the employees in a group we shall designate as the sawmill group, composed of men who did not want to walk out. McCatron first spoke briefly with the sawmill group. He then approached the Murphy group and said: 'I am sorry fellows, my keymen won't work with you. There will be no Union in this plant. There will be no meeting held here. Therefore, go to the office and pick up your time.' Employee Baker then asked: 'You mean we are fired?' McCatron replied: 'That is right. Get your checks.'
6
Respondents' version is that the employees were not discharged but quit. McCatron testified that he said, '* * * now under the circumstances you boys have quit and I can't put you back to work * * *.' The Trial Examiner found otherwise and his findings are clearly supported by substantial evidence.
7
The Board ruled that McCatron's discharge of the Murphy group violated § 8(a)(1) and (3) of the Act. We agree that McCatron's action in discharging the men without replacing them violated § 8(a)(1) and, that being so, it follows that under the circumstances of this case there was also a violation of § 8(a)(3).
8
Section 8(a)(1) provides that it shall be an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7'. Section 7 provides, in part, that employees shall have the right '* * * to engage in * * * concerted activities for the purpose of * * * mutual aid or protection.' 29 U.S.C.A. § 157. In the case of N.L.R.B. v. Globe Wireless, Ltd., 1951, 193 F.2d 748, this Court held that a strike called to bring about the reinstatement of an employee properly discharged for insubordination was a concerted activity protected by § 7 of the Act. In the instant case we have the additional fact that the strikers mistakenly but in good faith thought that the employee whose reinstatement they sought had been discharged because of union activities. Some of the strikers testified that they feared that unless effective action was taken they too would be discharged because of their union activity. The walkout was a concerted activity protected by § 7. The discharge of the employees participating in the walkout by McCatron without having first replaced them interfered with, restrained, and coerced the employees in the exercise of that concerted activity.
9
Had the strikers been correct in their assumption that Patton was discharged for union activities, the strike would have been an unfair labor practice strike. In that event the respondents could neither discharge nor replace them. See N.L.R.B. v. Remington Rand, Inc., 2 Cir., 1942, 130 F.2d 919, 927-928. But since Patton was discharged for good cause the strike should be classed as an economic strike. As economic strikers the men who had walked out could have been replaced. See N.L.R.B. v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 345-346, 58 S.Ct. 904, 82 L.Ed. 1381. But they could not be discharged without first being replaced. N.L.R.B. v. Globe Wireless, Ltd., 9 Cir., 1951, 193 F.2d 748, and authorities cited; N.L.R.B. v. Buzza-Cardozo, 9 Cir., 1953, 205 F.2d 889, certiorari denied 346 U.S. 923, 74 S.Ct. 310; N.L.R.B. v. Cowles Publishing Co., 9 Cir., 214 F.2d 708.
10
Respondents contend that since McCatron acted under compulsion of the non-strikers, who announced that they would not work with the strikers, he did not commit an unfair labor practice. Although McCatron was placed in a difficult position and may well have been motivated by a desire to keep his business in operation, such a motivation does not relieve the employer from a violation of § 8(a)(1). It is the effect and not the motivation of his action which determines whether he has violated § 8(a)(1). See N.L.R.B. v. Longview Furniture Co., 4 Cir., 1953, 206 F.2d 274, 276.
11
Under the standards set forth in Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., 1953, 347 U.S. 17, 74 S.Ct. 323, McCatron's action in discharging the strikers violated § 8(a)(3) as well as § 8(a) (1). Section 8(a)(3) provides that it shall be an unfair labor practice for an employer, 'by discrimination in regard to hire or tenure of employment * * * to encourage or discourage membership in any labor organization'. Since the discharged employees were union men striking to bring about the reinstatement of an employee they thought had been discharged for union activity, the discharges had a natural tendency to discourage union membership. Such a natural tendency establishes the intent required in finding a violation of § 8(a) (3). Radio Officers' Union, supra, 347 U.S. at pages 44-52, 74 S.Ct. at pages 337-342. Section 8(a)(3) also requires that the discharges constitute discrimination. We have held the respondents' discharge of the striking employees unlawful as a violation of § 8(a)(1). As such it was discriminatory and also violated § 8(a)(3).
12
The Trial Examiner found a violation of § 8(a)(1) in the conduct of supervisory personnel by the interrogation of employees and in a statement to the effect that if the Union came the plant would go on a forty-hour week. The Board affirmed the Trial Examiner's finding, as based upon four incidents.
13
Two of these incidents involved statements by supervisors that if the Union came the plant would go on a forty-hour week. The employees had been working fifty to fifty-five hours per week. The Board construed these statements as threats of loss of pay caused by shorter working hours. Section § 8(c) of the Act provides that 'The expressing of any views, argument, or opinion * * * shall not constitute or be evidence of an unfair labor practice * * * if such expression contains no threat of reprisal or force or promise of benefit.' We take note of the provision of 8(c) and of the fact that it is often difficult to distinguish a threat from a prediction. An employer may predict unfavorable consequences of unionization without committing an unfair labor practice if he can do so in a manner which contains no threat. However, the Board's finding that the statements concerning loss of working hours constituted threats is a reasonable one.
14
Two incidents of interrogation are complained of. One of these incidents concerns a statement of foreman Cooper to employee Murphy, towit: 'I have heard, Murph, that you were trying to get a union in here.' The other incident occurred when the following conversation took place between partner Nine, employee Don Matthews, and foreman Whetmore:
15
'Nine: Don, what do you know about this union business?
16
'Matthews: Nothing.
17
'Nine: That's fine. It seems like everybody you talk to don't know nothing about it.
18
'Whetmore: Don, I understand you are the man that brought the union man here.
19
'Matthews: No, I am not the man that brought him in here.
20
'Nine: It seems like everything that is did around here gets blamed onto Don.'
21
We fail to detect a threat in the said statements even when considered in connection with the overall conduct of respondents.
22
Interrogation regarding union activity does not in and of itself violate § 8(a) (1). This holding may be at variance with that of the Board as expressed in Standard-Coosa-Thatcher Co., 1949, 85 N.L.R.B. 1358. We are of the opinion that in order to violate § 8(a)(1) such interrogation must either contain an express or implied threat or promise, or form part of an overall pattern whose tendency is to restrain or coerce. We so held in Wayside Press, Inc., v. N.L.R.B., 9 Cir., 1953, 206 F.2d 862. Other circuits have taken the same view. N.L.R.B. v. Associated Dry Goods Corp., 2 Cir., 1954, 209 F.2d 593; N.L.R.B. v. Syracuse Color Press, Inc., 2 Cir., 1954, 209 F.2d 596; N.L.R.B. v. Montgomery Ward & Co., 2 Cir., 1951, 192 F.2d 160; N.L.R.B. v. Superior Co., 6 Cir., 1952, 199 F.2d 39, 43; Sax v. N.L.R.B., 7 Cir., 1948, 171 F.2d 769; N.L.R.B. v. Arthur Winer, Inc., 7 Cir., 1952, 194 F.2d 370; N.L.R.B. v. England Bros., Inc., 1 Cir., 1953, 201 F.2d 395.
23
The decision of this court in N.L.R.B. v. West Coast Casket Co., 9 Cir., 1953, 205 F.2d 902, upon which the Board relies, is not to the contrary since the interrogations there found to violate § 8(a)(1) occurred against a background of coercive conduct.
24
The order of the Board is modified so as to strike from the notice paragraph 3. As so modified the order will be enforced.
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745 A.2d 953 (2000)
Joseph E. PLATER, Samuel J. Capies, and Anthony R. Morrison, Appellants,
v.
UNITED STATES, Appellee.
Nos. 97-CF-140, 97-CF-143, 97-CF-486.
District of Columbia Court of Appeals.
Argued September 21, 1999.
Decided February 17, 2000.
*955 Peter N. Mann, appointed by the court, for appellant, Joseph E. Plater.
Michael Lasley, Washington, DC, appointed by the court, for appellant, Anthony R. Morrison.
*956 Christopher S. Merriam, Washington, DC, appointed by the court, for appellant, Samuel J. Capies.
Anthony Barkow, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Timothy J. Heaphy, Assistant United States Attorneys, were on the brief, for appellee.
Before REID and WASHINGTON, Associate Judges, and BELSON, Senior Judge.
WASHINGTON, Associate Judge.
Appellants Plater, Morrison, and Capies were indicted on charges of second-degree murder while armed,[1] and tried jointly. A jury convicted Capies and Plater of voluntary manslaughter, while armed.[2] Morrison was found guilty of voluntary manslaughter, unarmed.[3] The appeals of Plater, Morrison, and Capies were consolidated by this court. Plater, Morrison, and Capies seek several of their convictions based on several grounds. Appellants argue that the trial judge erred by: 1) refusing to instruct the jury on lesser-included charges of aggravated assault for Morrison and assault with a deadly weapon for Capies; 2) refusing to grant Plater's motion for a mistrial based on an improper statement by the prosecutor in his opening statement; 3) denying Plater's motion to sever his trial from non-testifying co-defendants Morrison and Grayson,[4] violating his Sixth Amendment Right to Confrontation; and 4) denying Morrison's motion to suppress his videotaped confession because it was involuntary. We affirm.
I. FACTUAL BACKGROUND
On June 27, 1996, at approximately 9:00 p.m., Thomas Davis, the decedent, was walking with Vanessa Price, Price's ninemonth old granddaughter, and another eight-year-old girl in the area of 16th and East Capitol Streets, N.E. While walking on the north side of East Capital street, returning to Price's home, Davis was stopped by Capies. Capies confronted Davis, who attempted to run before Capies struck him in the face with a bottle. Thereafter, Capies held Davis while five other men, including Plater and Morrison, began to viciously beat Davis and continued while be fell to the ground. Davis managed to raise himself off the ground and attempted to flee toward the south side of East Capitol street.
The group followed Davis across the street and continued to beat him using various weapons, including a stick, a pipe, and a bat. Davis, again, fell to the ground where his head was pounded against the cement curb. The assailants fled the scene, leaving Davis on the curbside. Davis died on July 2, 1996 from brain swelling due to the grave injuries inflicted from the beating.
II. ANALYSIS
A. Lesser-Included Offenses
Capies and Morrison contend that the trial court erred in denying their requests for jury instructions on the lesser-included offenses of assault with a deadly weapon and aggravated assault, respectively. They argue essentially that their confrontation with the decedent was a separate and distinct event, or, alternatively, that they withdrew prior to the fatal blows that killed Davis. For the following reasons, their arguments are without merit.
An instruction on a lesser-included offense is justified if (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient *957 evidentiary basis for the lesser charge.[5]Boykins v. United States, 702 A.2d 1242, 1250 (D.C.1997) (citations omitted); see also Day v. United States, 390 A.2d 957, 961 (D.C.1978).
In this case, Capies and Morrison argue, respectively, that assault with a deadly weapon and aggravated assault are lesser-included offenses of voluntary manslaughter, and that based on the evidence in the record they were entitled to have the jury instructed on those lesser-included offenses. Although aggravated assault and assault with a deadly weapon have not been explicitly recognized as lesser-included offenses of voluntary manslaughter in this jurisdiction, there is some support for this contention in dicta of prior decisions of this court. See Day, supra, 390 A.2d at 961-62 (citing Logan v. United States, 144 U.S. 263, 307, 12 S.Ct. 617, 36 L.Ed. 429 (1892) (dicta), United States v. Hamilton, 182 F.Supp. 548, 551 (D.D.C.1960) (dicta)). However, we need not decide in this case whether assault is a lesser-included offense of voluntary manslaughter because we find that the evidence in the record is insufficient to support a jury instruction on the requested lesser-included offenses.
Capies and Morrison each rely on testimonial evidence to support their respective contentions that there was sufficient evidence in the record to warrant lesser-included assault instructions being given to the jury. Capies argues that Jeffrey Drummond's testimony, that he picked Capies up from the area of the assault on his way to band practice, could lead a reasonable juror to infer that Capies struck Davis in the face with a bottle and then left with Drummond before the group assault began; thus his assault was a separate event entitling him to a lesser-included instruction. Morrison relies on his own statement to the police, in which he admits to punching Davis twice with his first while Davis was on the side of the street opposite from that on which the decedent died.[6] In the alternative, Capies and Morrison contend their respectively proffered evidence raises an inference that they withdrew from the group assault at some point and that their withdrawal constitutes sufficient grounds for giving jurors a lesser-included assault instruction. We disagree.
Despite their assertions to the contrary, neither Drummond's testimony nor Morrison's statement raises a reasonable inference that the actions of Capies and Morrison during the assault against Davis were separate and distinct from the involvement of the other participants in the assault. The only reasonable inference that can be drawn from Drummond's testimony is that Capies did not assault Davis because he was not present during the assault.[7] Morrison's statement at most suggests that he stopped beating Davis before Davis was finally killed. However, no reasonable juror viewing this evidence could possibly conclude that Capies and Morrison were somehow involved in a separate assault. To the contrary, the overwhelming evidence indicates that they were inextricably involved in the very assault that led to Davis' death. The undisputed evidence is that Capies struck the first blow hitting *958 Davis in the face with a bottle. Capies then held Davis while Morrison and Plater, among others, viciously beat him. After Davis was originally knocked to the ground, he attempted to flee but got no further than the other side of the street before the beating continued. The entire episode lasted no more than twenty minutes. The evidence in this case clearly and unequivocally establishes that the beating of Davis was "a continuing course of assaultive conduct, rather than a succession of detached incidents," In Re T.H.B., 670 A.2d 895, 900 (D.C.1996) (citation and internal quotation marks omitted), and in this jurisdiction it is well settled that an assault that results in a death is a homicide. See Hebron v. United States, 625 A.2d 884 (D.C.1993). Both Capies and Morrison participated in the assault that resulted in Davis' death and as a matter of law, they were not entitled to a jury instruction on any charge other than the homicide charge.
The alternative argument raised by Capies and Morrison that they withdrew from the assault before the decedent was killed and thus were entitled to a lesser-included assault instruction is equally without merit. Legal withdrawal has been defined as "(1) repudiation of the defendant's prior aid or (2) doing all that is possible to countermand his prior aid or counsel, and (3) doing so before the chain of events has become unstoppable." 2 LAFAVE & SCOTT, SUBSTANTIVE CRIMINAL LAW § 6.8(d), at 162 (2d ed.1986). In Harris v. United States, 377 A.2d 34, 38 (D.C.1977), this court expressed that to withdraw from a criminal venture a defendant charged as an aider and abettor "[m]ust take affirmative action to disavow or defeat the purpose, or definite, decisive and positive steps which indicate a full and complete disassociation." (citations omitted). The defendants' fleeing of the crime scene after participating in the assault does not constitute legal withdrawal. See LAFAVE AND SCOTT, supra, § 6.8(d) (commenting that "simple fight from the crime scene is not enough"); Harris, supra, 377 A.2d at 38. There is no evidence in this case to support a withdrawal instruction or an assault instruction, and a finding otherwise "would undertake an unwise and impermissible bizarre reconstruction of the evidence." West, supra, 499 A.2d at 865 (citing Wood v. United States, 472 A.2d 408, 410 (D.C.1984)).
B. Denial of Motion for a Mistrial
Plater argues that the trial judge erred by denying his motion for a mistrial based on an improper comment by the prosecutor in his opening statement. Specifically, the prosecutor indicated that the statements of Grayson and Morrison could be used as evidence against all four defendants in the crime.[8]
As an initial matter, "we emphasize that although appellant['s] complaint is primarily with the prosecutor, it is our function to review the record for legal error or abuse of discretion by the trial judge, not by counsel." Irick v. United States, 565 A.2d 26, 33 (D.C.1989) (citation omitted). The decision to order a mistrial is subject to the broad discretion of the trial court and our standard of review is deferential. Wright v. United States, 637 A.2d 95, 100 (D.C.1994). This court is only inclined to reverse "in extreme situations threatening a miscarriage of justice." Id. (citing Goins v. United States, 617 A.2d 956, 958 (D.C.1992)).
When analyzing claims of prejudicial prosecutorial conduct, it is first necessary to "determine whether the prosecutor's actions were improper." Diaz v. United States, 716 A.2d 173, 179 (D.C. 1998) (citation omitted). In this case, we will assume that the prosecutor's actions *959 were improper given that he was reprimanded by the trial judge for his comments.
Then, we must determine if the comments caused substantial prejudice to the defendant that warrants reversal. Diaz, supra, 716 A.2d at 181. "The applicable test to determine whether [improper prosecutorial comments] caused substantial prejudice is whether we can say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Id. This court weighs four specific factors when considering the impact of a prosecutor's conduct: 1) the gravity of the impropriety; 2) the direct relationship to the issue of guilt; 3) the effect of corrective instructions by the trial court; and 4) the strength of the government's case. Id. (citing Hammill v. United States, 498 A.2d 551, 554 (D.C.1985)).
Even assuming the prosecutor improperly commented that the statements by Morrison and Grayson could be used as evidence against all four defendants, Plater has failed to demonstrate that he suffered substantial prejudice. During jury selection the court had explained that evidence against one defendant could not be used against another, and in its preliminary instructions to the jury the court had further explained that opening statements are not evidence in the case. Additionally, the trial judge offered three separate curative instructions to the jury, clarifying that the extrajudicial confession could only be used for the limited purpose of determining the guilt of the defendant offering the statement. The first curative instruction was offered after the government's opening statement, in response to counsel's timely objection. The second instruction was given by the court after Grayson's and Morrison's statements were introduced by Detective Jeffrey Williams. Again, in the final jury instructions, the judge offered a third curative instruction to the jury. Therefore, the gravity of the prosecutor's comment was counterbalanced by the judge's official instructions to the jury, and we trust the "almost invariable assumption of the law that jurors follow their instructions." Wright, supra, 637 A.2d at 97 (citing Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)).
Finally, although the prosecutor's comments were directly related to the issue of Plater's guilt, the goverment's probative evidence in this case was very strong. The government's case included the testimony of several eyewitnesses to the events of June 27, 1996. In particular, three eye-witnesses, Vanessa Price, Eugene Kenny Allen, and Xavier Green, positively identified Plater's presence and active participation in the assault. In this case we are convinced that "the trial judge, proceeded very cautiously, [and] made full use of alternative measures to alleviate any prejudice that might have occurred." Wesley, supra, 547 A.2d at 1029. Thus, the prosecutor's improper comments, though worthy of admonishment, do not constitute reversible error.
C. Sixth Amendment Right to Confrontation[9]
Plater contends that the trial court's refusal to further redact the statements of his co-defendants, exclude the statements of his co-defendants, or sever his trial from his co-defendants violated his confrontation rights under the Sixth Amendment. Plater argues that the statements of his co-defendants when read in conjunction with the improper opening statement by the prosecutor, and viewed in the context *960 of the other evidence submitted by the government, expressly or at least inferentially, incriminates him and thus runs afoul of the United States Supreme Court's decision in Bruton, supra note 8, and its progeny.
The use of a statement by a nontestifying co-defendant that expressly implicates the defendant violates the defendant's Sixth Amendment right to confront the witness testifying against him. See Bruton, supra note 8, 391 U.S. at 126, 88 S.Ct. 1620. This rule was further refined in Richardson, supra, 481 U.S. at 211, 107 S.Ct. 1702 (1987), where the United States Supreme Court rejected the "contextual implication" doctrine used by the Sixth Circuit Court of Appeals to determine whether a Bruton issue existed, id. at 209, 107 S.Ct. 1702, and held that where a defendant's name and any reference to the defendant's existence are eliminated from the co-defendant's extrajudicial statement, the statement is properly admitted, with limiting instructions, regardless of any inference of the defendant's guilt that arises when the statement is linked with other evidence presented at trial. Soon thereafter, this court in Foster v. United States, 548 A.2d 1370 (D.C.1988), was faced with a circumstance where the redacted statement did not eliminate any and all references to a defendant, but instead substituted a neutral reference for the defendant's name.[10] In Foster, while finding a denial of the right of confrontation in light of the evidence adduced at trial, this court held that a redacted statement that does not eliminate all references to the existence of a defendant, but substitutes a neutral pronoun in place of an individual's name may be properly admitted at trial, along with limiting instructions, without violating a defendant's right to confrontation, unless a substantial risk exists that the jury will consider the statement when determining the defendant's guilt. After we issued our decision in Foster, the United States Supreme Court revisited the issue of the admissibility of co-defendant statements in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). In Gray, the redacted extrajudicial statement the government sought to introduce into evidence had not eliminated any and all references to the existence of other defendants, but had merely substituted the word "deleted" for the names of the individuals involved. The United States Supreme Court held that the use of a redacted statement that reads "[m]e, deleted, deleted, and a few other guys," was unconstitutional because the use of "obvious indications of alternation" facially incriminated the defendant because its reference to his identity could be inferred from the statement itself. Gray, supra, 523 U.S. at 193-97, 118 S.Ct. at 1156-57.[11] The Court *961 further clarified its holding in Gray, suggesting that the statement, "[m]e and a few other guys," would have passed constitutional muster. In reaching its decision, the Court in Gray, reaffirmed its rationale in Richardson that an inference based on other evidence introduced at trial to determine whether an extrajudicial statement is incriminating can be inappropriate.[12]
The admission of the extrajudicial statements in this case did not violate Plater's Sixth Amendment Confrontation right under Bruton as interpreted by Richardson and Gray. Nor does it violate Plater's right to confrontation if we consider inferences based upon all of the evidence, as this court suggested in Foster. In the instant case, similar to the factual scenario in Richardson, there was no reference to Plater's existence or participation in the offense because the statements did not introduce the names or descriptions of individual participants. The use of the plural neutral pronoun, "we," when referring to the group who attacked the decedent, in no way specifically linked Plater to the crime because there was no dispute that the incident was a group assault. Thus, the use of "we" was not prejudicial because the term "we" does not cannot a particular number of people or single out any individual person. Furthermore, there was no symmetry between the number of alleged perpetrators and the number of defendants on trial; therefore, it was wholly questionable whether any of the defendants, other than the defendant who gave the statement, were involved in the offense. Finally, the use of the neutral plural pronoun "we" comports with the proposed redaction, "[m]e and a few *962 other friends," that the Court in Gray found constitutionally permissible under Bruton. Given the above analysis, the trial judge's decision not to sever the trial was appropriate and consistent with the presumption in this jurisdiction that two or more persons charged with jointly committing a criminal offense are to be tried jointly. See Christian v. United States, 394 A.2d 1, 20 (D.C.1978).
Even assuming arguendo that the statements were improperly introduced at trial, the error was harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and reversal of the convictions is not required because there was over-whelming independent evidence of Plater's guilt. Reynolds v. United States, 587 A.2d 1080, 1083-84 (D.C.1991).
D. Suppression of Confession
At the hearing on Morrison's motion to suppress, appellant argued that after being informed of his Miranda[13] rights, he signed a PD-47 card on two occasions, indicating that he would not answer questions without an attorney. Subsequently, Morrison waived his Miranda rights and gave a videotaped statement to the police. Morrison contends that his subsequent waiver was involuntary because he was coerced by the actions of the police continuously harassing him, telling him he was lying, questioning him about his two statements, the length of time he was interviewed, and the physical barriers imposed on him.
The factual findings of a trial judge's denial of a suppression motion will not be disturbed unless they are without substantial support in the evidence. Hebron, 625 A.2d at 885 (citations omitted). A statement by a defendant is inadmissible if it was involuntary, even if the police satisfy all the requirements of Miranda, supra note 13; see also United States v. Bernett, 161 U.S.App.D.C. 363, 495 F.2d 943, 948-50 (1974). "[T]he test [for voluntariness] is whether, under the totality of the circumstances, the will of [appellant] was `overborne in such a way as to render his confession the product of coercion.'" United States v. Thomas, 595 A.2d 980, 982 (citing Arizona v. Fulminante, 499 U.S. 279, 288, 111 S.Ct. 1246, 1253, 113 L.Ed.2d 302 (1991)).
The trial judge made findings of fact that Morrison's confession was voluntary after a suppression hearing where appellant testified on his own behalf. The judge concluded that the officers informed Morrison of his Miranda rights and that he voluntarily waived them without coercion. The trial judge found, after viewing the videotaped confession, that Morrison expressed that he was not threatened and that he was not forced to give his statement. Additionally, Morrison articulated that he voluntarily changed his mind and did not want a lawyer present. The trial judge further observed that Morrison's disposition appeared comfortable on the videotape. On the record before us, we cannot conclude that the findings of the trial judge are without substantial support in the evidence.
Accordingly, the judgment of the trial court is hereby
Affirmed.
APPENDICES
STATEMENT OF TAJ GRAYSON
Q. Mr. TAJ GRAYSON, the Homicide Branch is investigating the beating death of Thomas Davis also known as BOO which occurred on Thursday, July 25, 1995 in the area of 16th and East Capitol Street, S.E.. Can you tell me in your own words what You know about his death?
A. I got home from work and I went around 16th and A Street, Northeast and I saw BOO walking down *963 the street. I saw BOO left up his shirt as if he had a weapon on him and then BOO walked across Eastern High School parking lot and sat there. And then we were contemplating what we were going to do. And then BOO left and went up 17th Street towards East Capitol Street. And we followed and we started hitting BOO. BOO tried to run across the street and he fell. So we hit him again and I kicked him in the chest. And then we said come lets go. And we left and went home.
Q. Did you hit Boo with any type of weapon?
A. No.
Q. Did you have any type of weapon on you at any time doing or after the assault on Boo?
A. No.
Q. Did you see anyone else besides yourself kicking Boo?
A. No.
Q. Did Boo have any type of weapon on him?
A. Not that I know of, no.
Q. Did Boo say anything to any of you as he was being assaulted?
A. No.
Q. Was there any plans being made on who was going to do what? Or how you'll were going to approach Boo?
A. No, we just said that we were going to go around there.
Q. Do you have anything else to add to your statement?
A. No, I don't
Q. Can you read and write?
A. Yes.
Q. What is the highest grade you completed in school?
A. Sophomore year in college.
Q. Did we discuss the fact that you may be later charged in the beating death of Boo?
A. Yes, you did.
Q. Did I explain to you that this statement made be used against you at a later time in court?
A. Yes.
Q. Do you understand what that means?
A. Yes.
Q. Did I also explain to you that you were not under arrest and that I will take you back home after this statement is finished?
A. Yes.
Q. Did you give this statement voluntarily and of your own free will?
A. Yes.
Q. At the beginning of this statement I read you your Miranda Rights and explained these rights to you?
A. Yes.
Q. At anytime of this interview did you ask for a lawyer?
A. No.
Q. Did anyone promise you anything in return for your statement?
A. No.
Q. Has anyone threatened you in any way in return for your statement?
A. No.
Q. How have you been treated since you been in this office?
A. Fair.
APPENDIX
UNITED STATES ATTORNEY'S OFFICE
TAPE TRANSCRIPTION
UNITED STATES OF AMERICA
v.
ANTHONY MORRISON
Laboratory Case Number 61017047 P JB
Department of Justice
*964 Federal Bureau of Investigation
Video Enhancement Unit
Transcript of Video Tape
Date: 7-22-96
MAYBERRY: Today's date is Monday, July 22, 1996. My name is Detective Mayberry. We have Detective Williams and we have Mr. Anthony? ..
DEFENDANT: Morrison.
INTERVIEW
MAYBERRY: Morrison. This interview is being conducted in reference to the homicide which occurred on July 2nd, 1996 in which the decedent is Mr. Donnell Davis.
WILLIAMS: The decedent is Thomas Davis.
MAYBERRY: Thomas Davis. I'm sorry, before we start this interview, Mr. Morrison, I want to ask you a couple of questions. First of all, have you been treated fairly since you've been at the Homicide office?
MORRISON: Yes I have.
MAYBERRY: Have you been threatened by ... threatened by anybody since you've been at the Homicide office?
MORRISON: No. I have not.
MAYBERRY: Have you been forced to give . . . make this statement that you're about to make?
MORRISON: No I haven't.
MAYBERRY: Are you under any medication of any type?
MORRISON: No.
MAYBERRY: I might have forgot to give the time that this interview started but its 11:58 a.m.
Mr. Morrison, first thing we gonna do. We're gonna go over ... the rights card. You filled out two rights cards, is that correct?
(DEFENDANT NODDED)
MAYBERRY: We're gonna go over the first rights card that you filled out with Detective Williams.
WILLIAMS: Okay. On the back rights card. How about the right. How about reading the rights card on the front.
MORRISON: You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything at any time to answer any questions. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present, you will still have the right to stop answering at anytime. You also have the right to stop answering questions at any time until you talk to a lawyer.
WILLIAMS: Okay. Flip the card on the other side. That's the waiver. Can you read the question number one for me?
MORRISON: Have you read or have read to you the warning as to your right? And I answered yes and my initials.
WILLIAMS: Okay.
MORRISON: Do you understand this right? Yes, with my initials.
Do you wish to answer any questions? Yes, with my initials.
Are you willing to answer questions without having an attorney present? I put `no' but I scratched it out and put `yes.'
WILLIAMS: Why did you scratch it out and put yes?
MORRISON: Why? Because I wasn't sure at first.
WILLIAMS: Okay, but you did that voluntarily?
MORRISON: Yes I did, on my own.
WILLIAMS: Okay.
*965 MORRISON: Then I initialed it and signed my name.
WILLIAMS: Okay.
MAYBERRY: Alright. There's a second rights card. Well, before we get to that initially after you signed that waiver agreeing to talk to us you told us a story. Is that correct?
MORRISON: Yes I did.
MAYBERRY: Okay. Briefly tell us what you told us when the first rights card was read to you and you agreed to talk to us.
MORRISON: That I was coming down from the store and . . . me and some guys came from the store and saw a group of boys.
MAYBERRY: Okay, and what else?
MORRISON: And we went around there and we saw a group of boys beating Boo.
MAYBERRY: Okay, and that's the guy who was killed?
MORRISON: Yes it was.
MAYBERRY: Okay. You originally said without putting words in your mouth that you didn't know who did it?
MORRISON: Right.
MAYBERRY: Okay. At that point after we explained to you that certain things you said didn't match up with what we had in the investigation you then agreed to . . .
MORRISON: Answer.
MAYBERRY: . . . tell the truth?
MORRISON: Yes I did.
MAYBERRY: Okay. As to really what happened as far as that night?
MORRISON: Yes. After really thinking about what my life consequences were I came out and talked to you.
MAYBERRY: Also at that point you were concerned about what you might say may be changed or, or, or, not put the way you say it? Is that correct?
MORRISON: Yes.
MAYBERRY: And at that point you also stated that you wanted to really tell us the truth but you thought you might need a lawyer present, is that correct?
MORRISON: Yes.
MAYBERRY: Okay. At that time were you informed by myself and Detective Williams that you wanted a lawyer at this time we had to stop talking to you?
MORRISON: Yes.
MAYBERRY: And those were your rights, right?
MORRISON: Yes. Absolutely
MAYBERRY: Did it come a point in time a little while later that you told myself and Detective Williams that you wanted to talk to us? You wanted to tell the truth?
MORRISON: Yes. That's the truth.
MAYBERRY: Without a lawyer present?
MORRISON: Yes, that's true.
MAYBERRY: Did myself or Detective Williams in any way make you change your decision about what you wanted to do?
MORRISON: Well, yes and no. When I say yes and no, I mean you was really telling me what was the right thing other than lying.
MAYBERRY: Well, at that point, we told you we couldn't talk to you and we stopped talking to you. Is that correct?
MORRISON: Right. Yes.
MAYBERRY: Okay. As far as telling you about right and wrong, that was before you initiated you wanted the lawyer.
MORRISON: Right.
MAYBERRY: Okay. Again, did we force you to talk to us . . .
MORRISON: Not at all.
MAYBERRY: When you said you wanted a lawyer?
*966 MORRISON: Not at all.
MAYBERRY: Did anybody threaten you and say if you didn't talk to us without a lawyer present something would happen?
MORRISON: No.
MAYBERRY: Have we promised you anything for giving a statement?
MORRISON: No, sir.
MAYBERRY: Okay. And you know that you don't have to talk without a lawyer present, is that correct.
MORRISON: Yes sir.
MAYBERRY: And you giving this statement of your own free will and your not being forced or coerced by anybody.
MORRISON: No, I'm not.
MAYBERRY: This is the second rights card that you filled out. The same card, is that correct? As the first one?
MORRISON: Yes sir.
MAYBERRY: Okay. I'm not gonna have you read it again. But as far as the first question have you read or have read to you a warning as to your rights? What was your answer?
MORRISON: Yes.
MAYBERRY: And what did you put beside it?
MORRISON: My initials.
MAYBERRY: The second question do you understand these rights?
MORRISON: Yes.
MAYBERRY: And what did you put beside it?
MORRISON: My initials.
MAYBERRY: And the third question do you wish to answer questions, any questions?
MORRISON: Yes.
MAYBERRY: What you put?
MORRISON: I put in my . . . my initials.
MAYBERRY: And what answer?
MORRISON: Yes.
MAYBERRY: Okay. And the fourth question are you willing to answer questions without an . . . without having an attorney present?
MORRISON: Yes I would.
MAYBERRY: And what did you put beside it?
MORRISON: My initials.
MAYBERRY: And then, did you sign your name?
MORRISON: Yes I did.
MAYBERRY: And that's at 11:21 a.m.?
MORRISON: Yes.
MAYBERRY: Today's date. Okay. Alright. We want to do now is go over the events of what happened.
WILLIAMS: On June . . . on Thursday, June 27th, 1996. And that's in reference to the beating death of a gentleman you know by the name of Boo.
MORRISON: I don't know him.
WILLIAMS: You don't know him. But you know his name is Boo though?
MORRISON: Yes.
WILLIAMS: Okay. Also known as Thomas Davis. So can you tell us the circumstances that surrounded his death?
MORRISON: You mean what started it? How it started?
WILLIAMS: Right. How it started from the beginning.
MORRISON: Okay. From the beginning. We was all around "A" street. That's 16th and "A" where I live. And the guy Boo was walking down the street. (PAUSE) that mean he coming around here so that means that he giving us a due that he was gonna kill us. But I mean I'm not saying that's what's going through his head. But he . . . We walked around the corner and jumped in. All of us jumped in it. So I hit him twice. That's all I did. I didn't have no weapons. Only thing I used *967 is my bare hands and as you can see on my hand that that's where I hit him at on his jaw and that was it and I moved away.
WILLIAMS: What do you have on your hand?
MORRISON: Like a . . . my knuckle and a scrap. My knuckle bust and a scrap.
MAYBERRY: And y'all were together?
MORRISON: Yes.
MAYBERRY: And . . . Boo the guy that was killed?
MORRISON: Yes.
MAYBERRY: Y'all saw him walking on the street?
MORRISON: Yes.
(PAUSE)
MAYBERRY: When your group saw him tell me exactly what happened as far as did y'all approach him or did he approach y'all?
MORRISON: I'll say we approached him. when we went around the the intention was not to kill. It was not. It was just to let him know that. I mean. You threatened our lives. And . . . we just jumped him.
WILLIAMS: Let me ask you this. When y'all went around there did y'all have, did anyone have sticks, bats, or poles or anything with them?
MORRISON: Wasn't no sticks, bats, or poles. I mean as far as when I went around there. When I went around there nobody had no sticks or poles.
MAYBERRY: Let me ask you this going back a little bit. When y'all saw him. You said he threatened y'all. Did he threaten y'all as a group? or did he just threaten one member of the group with this gun?
MORRISON: I said one member of the group.
MAYBERRY: And going back a little farther. Can you tell me how all this got started. About the threats and everything?
MORRISON: Well, before all this started. I don't know if it was around A Street. I'm going by he-say she-say cause that's what they told me.
MAYBERRY: Okay.
MORRISON: That . . . I don't know if it started around 15th Street or did it start on A Street. It comes to say that somebody threw a rock at Boo's car and Boo came out with a rifle with Tye. Whoever Tye is? That's Boo's best friend as far as I know.
MAYBERRY: Okay.
MORRISON: What I was told, they said Boo told Tye "Go get that" So, that's how it started so, they left real fast like they was scared too.
MAYBERRY: Okay. Okay. Did Boo shoot this gun during that incident?
MORRISON: No.
MAYBERRY: As far as you know?
MORRISON: As far as I know? No. I know he just pointed it out.
MAYBERRY: And this lead up to the incident where Boo was beat?
MORRISON: Yes.
MAYBERRY: Now getting back to the beating. You say you hit Boo twice. And where'd you hit him at?
MORRISON: I hit him in his jaw.
MAYBERRY: Both times?
MORRISON: Yes.
MAYBERRY: You didn't have a stick or anything?
MORRISON: I didn't have a stick, or pole, or anything.
MAYBERRY: Anybody else hitting on Boo?
MORRISON: It was some other dudes that were there.
*968 MAYBERRY: Do you know who they are?
MORRISON: No I don't.
MAYBERRY: How about the other two guys that were with you?
MORRISON: I'm saying just like I said I don't know if they had hit him or not. That was with us. I don't know `cause I didn't pay attention just like, I said I knew what was going on but then again I didn't want to know. But I looked anyway.
MAYBERRY: Okay. When you hit Boo was he standing up or on the ground?
MORRISON: He was on the ground.
MAYBERRY: Okay. So you hit him while he was on the ground?
MORRISON: Yes.
MAYBERRY: You remember what you had on that day?
MORRISON: I know I had on jeans and a shirt.
MAYBERRY: Okay, blue jeans, black jeans, faded jeans?
MORRISON: Blue jeans.
MAYBERRY: Long?
MORRISON: Yes.
MAYBERRY: Do you have a nickname?
MORRISON: Tone Tone. Yes.
MAYBERRY: Tone Tone. So after Boo is beaten what do y'all do then?
MORRISON: We left and went back around "A" street.
MAYBERRY: When y'all ... After he was beaten was he just left on the scene then?
MORRISON: Yes.
MAYBERRY: Was he moving?
MORRISON: Well I saw his feet, when I was leaving, was moving.
MAYBERRY: Was he saying anything?
MORRISON: No. Not that I know of.
MAYBERRY: Was he bleeding?
MORRISON: He was bleeding.
MAYBERRY: On what part of his body?
MORRISON: From his head.
MAYBERRY: From his head?
MORRISON: Yes.
(PAUSE)
MAYBERRY: I think earlier you mentioned some other guys kinda jumped into it too.
MORRISON: Yes I was saying it was at that time it was hot. When its not people come out. So it was a lot of people who was out there that had somethin' . . . They probably knew what was happening but they probably, anybody could've hit him. Put it that way.
MAYBERRY: Okay.
MORRISON: `Cause it was a lot of people out there I don't know who's friends was who. I know what friends was ours.
MAYBERRY: But you know for a fact that you hit him at least twice?
MORRISON: Yes I did.
MAYBERRY: You say you . . . After, After y'all left the scene there where Boo was down at y'all went back to "A" street?
MORRISON: Yes we did.
MAYBERRY: Did you talk about what happened?
MORRISON: Yes we did. We all talked about how we were going to be protected.
MAYBERRY: Were any of you drinking when this happened?
MORRISON: When we was . . . yes we was.
MAYBERRY: What were you drinking?
MORRISON: We was drinking little beers, little Heinekens.
*969 MAYBERRY: Were you high?
MORRISON: No we wasn't.
MAYBERRY: Anybody smoking?
MORRISON: We was just drinkin.
MAYBERRY: Just drinking. About what time of the day did this happen?
MORRISON: It was around 7:30 . . . It was getting dark so it was probably around 7:30, 8. Whatever time it be getting dark it was close to that time.
MAYBERRY: Let me ask you this, did anybody hit him, hit Boo in the face with a bottle or anything before the
MORRISON: I don't know. Unless that happened before I came around there.
MAYBERRY: Well let me ask you this. Did y'all still have beer bottles with you when y'all?
MORRISON: No.
MAYBERRY: Or any kind of bottles with you?
MORRISON: No we didn't have.
WILLIAMS: Did Boo have any type of weapon on him?
MORRISON: Did he? No he did not.
MAYBERRY: Did anybody go in his pockets or anything after he was down or while they was beating him?
MORRISON: No. No they didn't.
MAYBERRY: Or after?
MORRISON: After? Well I don't know after we left.
MAYBERRY: After the beating your group went back to "A" street right?
MORRISON: Yes sir.
MAYBERRY: How about the other guys?
MORRISON: Well I don't know where they went. I know everybody left.
WILLIAMS: Where the other guys from. What area are they from?
MORRISON: Well it's different guys they be on 15th street, 17th street. I mean people that lives around the whole area, the whole neighborhood. I mean they have to come around. Just like I had said earlier that our type of block is not the type of block that cause violence. On our block we party, parties. We celebrate, we celebrate people's birthday. We go out more than we think about doing any type of violence at all.
MAYBERRY: Okay. Okay.
MORRISON: So that's why everybody comes around "A" street.
MAYBERRY: Okay.
MORRISON: I mean in my house as my family is so open they come to my house. Because they know nobody gonna disrespect nobody in my house.
MAYBERRY: Let me ask you this? Was anybody out there who was not involved with this?
MAYBERRY: Was there anybody out there who was not involved with this that you know of? Do you remember any of their names or anything like that?
MORRISON: Cathy and Sharon I think. I'm not sure Sharon but I know Cathy was out there.
MAYBERRY: Okay, did you have blood on yourself?
MORRISON: Yes, on my hand. I don't know if it was from my blood or his blood.
MAYBERRY: Okay. How about your clothes?
MORRISON: I ain't have no blood on my clothes.
MAYBERRY: Let me get this straight. Now originally when you talked to us, you said you were out there. Alright.
MORRISON: Yes.
MAYBERRY: And that you didn't touch him or hit him or anything like that, right?
MORRISON: Right.
*970 MAYBERRY: And nobody else you knew hit him?
MORRISON: Right.
MAYBERRY: That's what I want clear.
MORRISON: Right.
MAYBERRY: But at first, you said that you had came from the store and you walked up and they were beating on this guy, well beating on Boo.
MORRISON: Yes.
MAYBERRY: But you weren't. You said you weren't involved the first time you told us.
MORRISON: That's the first time.
MAYBERRY: And that wasn't the truth right?
MORRISON: It was not the truth. No it was not.
WILLIAMS: How do you feel about what happened?
MORRISON: Well, like I said before, I wasn't . . . we wasn't trying to go around to kill the guy, I mean, I feel, that's what's really been off my conscience the whole time since he been ... I mean that I heard that he died. Our intention was not to go around there and kill him. I mean cause, for my family, I'm not a murderer. I mean, I ain't sayin' to bring anybody in but I'm sayin' anybody around the way can tell you what type of guy I am around my way. But I mean I do feel bad. I mean, I know if you do a crime you gotta do the time, whatever the saying is. But, well, really, before I even struck him, I mean I should have really thought about myself.
MAYBERRY: Now, when you say, let me make this clear. When this first incident happens, you're not there, right?
MORRISON: Right.
WILLIAMS: Is there any plans being then as far as what y'all gonna do to Boo when y'all were around that corner.
MORRISON: No, it wasn't. No, it wasn't.
WILLIAMS: When y'all catch up with him?
MORRISON: No, it wasn't. I'm sayin', I didn't even know how the boy look and I still don't know to this day.
WILLIAMS: Okay.
MAYBERRY: Let me ask you this? And I forgot to mention it up front. Since you been here, have we given you an opportunity to go to the bathroom?
MORRISON: Yes you did.
MAYBERRY: Smoke cigarettes?
MORRISON: Yes, you did.
MAYBERRY: Offered you something to eat?
MORRISON: Yes.
MAYBERRY: Okay. And just to go over this part about these two statements, the first time when you asked for a lawyer, we stopped talking to you right?
MORRISON: Right.
MAYBERRY: And it was you who told us that you wanted to talk to you ... talk to us again. That you wanted to tell us the truth. To get this off your chest?
MORRISON: Yes.
MAYBERRY: So its not anything that we initiated but you told us you wanted to talk to us?
MORRISON: Right.
MAYBERRY: Anything else you'd like to say?
MORRISON: You know. I hope I can get out of this without, well I'll say it this way. The reason I lied at first because I was looking out for my life. Once I do get out . . . If I do get out or whatever of this thing that we in. Like if I snitch on somebody, then it get out on the street that I snitched on somebody, somebody *971 gonna be looking for me and I don't need my family going through that.
MAYBERRY: Anything else?
MORRISON: I would like to say God bless his family, I hope they forgive me.
MAYBERRY: The time is 12:25 p.m., Monday, July 22nd, 1996. This interview is concluded.
NOTES
[1] D.C.Code §§ 22-2403, -3202 (1996)
[2] D.C.Code §§ 22-2405, -3202 (1996)
[3] D.C.Code § 22-2405
[4] Taj A. Grayson was also tried with the three appellants, but is not a party to this appeal.
[5] "The requirement of a sufficient evidentiary basis can be met by a showing that: (1) there is conflicting testimony on a factual issue, or (2) the lesser-included offense is fairly inferable from the evidence." Price v. United States, 602 A.2d 641, 644 (D.C.1992). The standard requires the production of some evidence that offers a rational basis for the instruction. See Rease v. United States, 403 A.2d 322, 328-29 (D.C.1979); West v. United States, 499 A.2d 860, 865 (D.C.1985).
[6] Morrison submits that two separate assaults occurred, the first on the north side of East Capitol street and the second fatal assault on the south side of East Capitol street where the blows that killed Davis were delivered, and that his participation was limited to the first, non-fatal assault.
[7] The parties stipulated that the emergency calls reporting the beating of Davis were placed at approximately 9:00 p.m. Therefore, Drummond's testimony that he picked up Davis at 7:15 p.m., could only provide an alibi for Capies, and the trial court properly instructed the jury on this theory of defense.
[8] Plater also argues on appeal that the prosecutor's comments regarding the use of the extrajudicial statement against all four defendants violated his Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This issue will be discussed in Section C, infra.
[9] A copy of Morrison's and Grayson's redacted statements are attached as an appendix. Specifically, Plater objects to the portions of Morrison's statement in which he narrates the group beating of Davis and uses the pronoun "we":
We was all around "A" Street. And the guy Boo [Davis] was walking down the street. That mean he coming around here so that means that he giving us a cue that he was gonna kill us. We walked around the corner and jumped in. All of us jumped in it.
[10] In Richardson, supra, 481 U.S. at 211 n. 5, 107 S.Ct. 1702, the Court expressly reserved judgment on extrajudicial statements that replace a defendant's name with a symbol or neutral pronoun.
[11] In Foster, supra, 548 A.2d at 1378, we held that it was appropriate to use "contextual analysis" (a term not used by the Supreme Court in Gray) in order to determine whether there was a substantial risk that the jury would consider the nontestifying co-defendant's statement in deciding the guilt of the defendant. To make that determination, we stated, the trial court must "consider the degree of inference" the jury must make to connect the defendant to the statement, and that such an "assessment will require consideration of other evidence to determine whether the redaction is effective, when taken in context, to avoid linkage with the defendant." Id. at 1379. The Foster court then went on to consider testimony of five government witnesses as well as other evidence in determining that the risk was so substantial that the statements of the non-testifying co-defendant should not be admitted. The Supreme Court, interpreting Richardson in its recent Gray opinion, essentially ruled out the consideration of other evidence when determining whether a statement inferentially incriminates a defendant: "We concede Richardson places outside the scope of Bruton's rule those statements that incriminate inferentially. We also concede that the jury must use inference to connect the statement in this redacted confession with the defendant. But inference pure and simple cannot make the critical difference...." Gray, supra, 523 U.S. at 195, 118 S.Ct. at 1156 (citation omitted). "Richardson must depend in significant part on the kind of, not the simple fact of, inference." Id. at 196, 118 S.Ct. at 1157. The simple deletions or omissions of names at issue in Gray "obviously refer directly to someone, often obviously the defendant," and the inferences from them were ones "a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." Id. The government urges in this case that if we conclude that a Foster contextual analysis demands exclusion of the co-defendant's statements, we should reconsider Foster's vitality in light of Gray. As we are satisfied that application of Foster's holding would not require exclusion, we need not make a holding regarding Foster's vitality, but note the evolution and clarification of Bruton principles by the Supreme Court after Foster in the course of holding that, in this case, there was no violation of the Confrontation Clause. If the trial court should face a situation in which the application of Foster's approach would lead to a different result than application of Gray, the court of course should follow Supreme Court precedent.
[12] Since the United States Supreme Court decision in Gray, several circuit courts have interpreted Bruton-Richardson as modified by Gray, and determined that a court should only look to the face of extrajudicial statements by non-testifying co-defendant in discerning if the statement is expressly or inferentially incriminating. See, e.g., United States v. Akinkoye, 174 F.3d 451, 457 (4th Cir.1999) (finding no Bruton violation where the use of neutral phrases "another person" and "another individual" did not facially implicate the defendant); United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir.1999) (holding that "[w]here a defendant's name is replaced with a neutral pronoun, as long as identification of the defendant is clear or inculpatory only by reference to evidence other than the redacted confession, and a limiting instruction is given to the jury, there is no Bruton violation"); United States v. Verduzco-Martinez, 186 F.3d 1208, 1215 (10th Cir.1999) (holding that "[t]he fact that [a][] redacted statement may have inferentially incriminated [] [the defendant] when read in context with other evidence does not create a Bruton violation"); United States v. Peterson, 140 F.3d 819, 822 (9th Cir.1998) (expressing that the Court in Gray noted "that redactions which do not lead to the inference that a specific person was named and the identity of that person [is] protected through redaction may be appropriate"); United States v. Wilson, 160 F.3d 732, 740 n. 5 (D.C.Cir.1998) (commenting that the Court in Gray revisited Bruton and Richardson to clarify the curtailed use of inference in a Bruton analysis). See also Richard F. Dzubin, Casenote: The Extension of the Bruton Rule at the Expense of Judicial Efficiency in Gray v. Maryland, 33 U. RICH. L. REV. 227, 240 (1999), where the author posits that "[t]he Gray decision effectively asserts that the Court is following a clear precedent of looking only to inferences that may be drawn from the confession itself."
[13] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, L.Ed.2d 694 (1966).
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649 S.W.2d 207 (1983)
David F. LOONEY and Mildred D. Looney, his wife, Plaintiffs-Appellants,
v.
James C. HINDMAN and Betty M. Hindman, his wife, Defendants-Respondents.
No. 64078.
Supreme Court of Missouri, En Banc.
March 29, 1983.
As Modified on Denial of Rehearing April 26, 1983.
*208 Ernest L. Keathley, Jr., St. Louis, for plaintiffs-appellants.
*209 Stephen M. Glassman, William B. England, St. Louis, for defendants-respondents.
BLACKMAR, Judge.
The plaintiffs own a home in Bridgeton, St. Louis County. The defendants' home adjoins the plaintiffs' on the south. A fence along the south border of the plaintiffs' property separates it from the defendants', and a fence along the west border separates it from that of another neighbor, the Zimmers. The natural drainage in the area is from south to north and from west to east.
When the plaintiffs moved into their house in 1974 they hired a house mover to transport their 20 foot by 40 foot continuous pour steel reinforced concrete swimming pool to their new home, where it was installed in the back yard about three feet from the south fence. The pool rested on a concrete base and a sand and dirt bed and had a three foot walkway, or deck, around the edges.
During March and April of 1975 the defendants dug a 20 foot by 20 foot garden in their back yard, extending to the fence separating their property from the plaintiffs'. About March 14, 1977, defendant James Hindman roto-tilled the garden, and about March 23, manure was mixed into the soil of the garden. The evidence is not wholly in agreement as to just how close to the fence the garden was tilled, but the distance was no more than a few inches.
Some time in March of 1977 the plaintiffs emptied the pool for cleaning and painting, as they had done in past years without incident. Rains to a total of 3.25 inches fell during the night of March 27-28. The following morning the pool was seen to have risen three feet out of the ground, and the concrete deck around its edge was hanging off at a 30° angle. The pool was subsequently restored to approximately its former level, but only with great difficulty and expense. The rise of the pool out of the ground is the basis for the first claim which the plaintiffs submitted to the jury. (Count V of the petition).
Plaintiffs based this claim on the theory that the defendants rendered the garden area substantially more capable of absorbing water, by reason of the cultivation and manuring of the soil, so that it collected surface water, and, after the soil was saturated, discharged the water in increased quantities and with destructive force at a point onto plaintiffs' property underneath the base of the pool, causing the pool to "float." Plaintiff David Looney testified that, in attempting to find the source of the problem, he had observed water standing in the garden and found a hole, or channel, eight inches wide, leading from the defendants' garden to plaintiffs' pool. He also observed water running from the garden through this hole toward his pool. Plaintiffs produced an expert who corroborated these observations, and further postulated that the hole directed water that had collected in the garden toward plaintiffs' pool, with sufficient force to float the pool out of the ground.
Count VI, submitted to the jury, involved the rise of the pool in 1979. In 1977, some time after the pool had first risen, the defendants placed a border of railroad ties around the east, south and west sides of their garden "for decorative purposes." The ties were set in concrete, resting approximately one inch in the ground and two inches in the concrete. They were eight inches in height. Defendant acknowledged that one purpose of the setting in concrete was to divert water away from the garden.
The tie border presented no problem until April of 1979, when the pool was again empty. On April 11, following a heavy rain, the pool once more rose out of the ground. Defendants had not yet roto-tilled their garden for that season. The plaintiffs claim that this 1979 damage resulted when water on the west side of the defendants' garden was dammed by the tie border and forced onto plaintiffs' land. Plaintiffs' expert opined that this installation of ties could have diverted surface water that otherwise would have run off defendants' yard, but which instead would have been redirected toward the back fence and onto plaintiffs' property. The expert also testified *210 that increased hydrostatic pressure, caused by water running under the pool, forced this 1979 "floating" of the pool.
The plaintiffs sought to submit their claim for the 1977 damage by a verdict directing instruction reading as follows:
INSTRUCTION NO. ___
Your verdict must be for Plaintiffs under Count V if you believe:
FIRST: Defendants collected or permitted water to collect on their own premises on or about March 27-28, 1977; and
SECOND: Said collected water was discharged in destructive quantities at one point in a body against Plaintiffs' land; and
THIRD: As a direct result of such collection and discharge of water, Plaintiffs sustained damage.
The court refused this instruction but, on its own initiative, gave an instruction based on MAI 22.06 and reading as follows: (Instruction # 3).
INSTRUCTION NO. 3
Your verdict must be for plaintiffs under Count V if you believe:
FIRST: Plaintiffs owned the property at 11720 Chess Drive, St. Louis County, Missouri, on or about March 27-28, 1977, and
SECOND: The normal flow of surface water was collected and directed or permitted to collect and be directed on defendants' property, by the tilling of their garden in March, 1977, and
THIRD: The defendants permitted the discharge of water onto plaintiffs' property in concentrated and destructive quantities, and
FOURTH: Such use by defendants of their property was unreasonable, and
FIFTH: As a direct result of such conduct of defendants, the plaintiffs sustained damages.
The plaintiffs requested a similar submission for the 1979 damage, which the court also refused, giving again an MAI 22.06 type instruction (Instruction No. 4). The defendants adopted Instructions Nos. 3 and 4 as submitted by the court.
The jury returned a verdict for the defendants on both of the counts submitted. The plaintiffs appealed, claiming, along with other points about instructions and evidence, that Instructions 3 and 4 were prejudicially erroneous in requiring the jury to find as an essential element of the plaintiffs claim that the defendants' use of their property was "unreasonable." They argue that this submission introduces a requirement of negligence which is not necessary in cases involving collection and discharge of surface water.
The Court of Appeals reversed and remanded for a new trial, finding that the verdict directors were prejudicially erroneous in requiring the finding of unreasonable use. The court was of the opinion that a submission of this kind called for a finding of negligence, and therefore imposed on the plaintiffs a burden they did not have to bear under the course of decisions dealing with surface water. The court made it clear that it was not giving its approval to the plaintiffs' requested submission, and did not respond to the other points presented by the appellant, holding that these should await the settlement of instructions on retrial. We transferred the case and consider it as on initial appeal. Having so considered it, we affirm the judgment of the trial court.
Missouri follows the "modified common enemy" concept of surface water.[1]*211 This doctrine appears to give lower, or servient, owners considerable freedom in blocking the flow of surface water onto their land from upper lands,[2] but in certain situations it places substantial restrictions on the rights of the upper owners who seek to cast surface waters onto lower lying properties. Three of the principal situations which might be the occasion for liability are well expressed in Borgmann v. Florissant Development Co., 515 S.W.2d 189, 194-5 (Mo.App.1974), relying on the analysis found in the leading case of Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 624-25 (Mo.1958), in the following language:
What is actionable is (1) the collection of surface water into an artificial channel or volume and discharge of it in increased and destructive quantities upon the servient estate to its damage, (2) the draining off of surface waters in such a manner as to exceed the natural capacity of the drainways and (3) the discharging of surface waters onto adjacent lands to which it would not naturally drain.
The Borgmann court made it clear that it did not purport to catalog all the liabilities of upper owners for discharging surface water onto lower ones, but the plaintiffs assert that their case fits the first category of actionable incidents there described and we analyze it on that basis. The contention is that the defendants collected surface waters, as to the 1977 incident, by cultivating and manuring the garden, and, as to the 1979 one, by laying the tie border so as to cause an accumulation on the west side of the garden. It is then claimed that the waters so collected, in each instance, were discharged in destructive quantities onto the plaintiffs' land.
The defendants at oral argument invited us to hold that the plaintiffs had failed to make a submissible case. They properly moved for a directed verdict at the close of all the evidence, and, in any event, are entitled to advance any argument on appeal which would demonstrate that the judgment in their favor is correct, but they did not favor us with a brief on the issue of submissibility and consequently we will not decide the point. We say frankly, however, that we do not want to be understood as holding that a submissible case was made. The defendants' use of their land for a garden, with the attendant cultivation and fertilization, is a very ordinary kind of use in a suburban area, as is the installation of the tie border. There is no evidence that the defendants did anything to alter the contours of the land or to construct drainage channels. The plaintiffs' evidence as to the volume, source, and rate of flow of the water which they claim caused the pool to rise is not quantified, and there is no satisfactory evidence as to how much of the water flowed onto their land from the defendants' property and how much came naturally from the higher land to the west (the Zimmers' property). A finding of liability on evidence such as this might seriously inhibit homeowners in the ordinary use of their property. We express these reservations, but need not pursue the matter further since we find no error in the submission. It is not surprising that the jury found as it did.
The plaintiffs' requested instructions are framed on the theory that reasonableness of the defendants' use of their property is not properly in issue. They quote an instruction from Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593, 600-01 (Mo. banc 1974), which disposed of two separate appeals, involving the same parties, from different counties, in a single opinion. One of the cases, characterized by the court as a "common law trespass" case, was submitted on an instruction somewhat similar to the verdict directors offered by the plaintiff. The other case, according to the court, was submitted on a "common law nuisance" theory by an instruction essentially similar to MAI 22.06 and to the verdict directors given by the court in the present case. This court *212 affirmed judgments for the plaintiff on both theories. The present plaintiffs essentially requested a "trespass" or "strict liability" submission, and the court instructed on a nuisance theory.
A "trespass" is a "direct physical interference with the person or property of another." Mawson v. Vess Beverage Co., 173 S.W.2d 606, 613 (Mo.App.1943), citing Chitty's Pleadings. The essence of the action is wrongful entry. Trespass has its origin in an intentional act, even though the actor may not intend to invade the property of another. The point is nicely illustrated by Judge Houser's opinion in Corrington v. Kalicak, 319 S.W.2d 888 (Mo.App.1959), in which the defendant obstructed the flow of a running stream by installing an added substructure during the replacement of a bridge. There followed an abnormal rainfall and the stream, because of the obstruction, backed up and flooded the plaintiff's land. The court held that the plaintiff was entitled to submit the case on a trespass theory, with no obligation to plead or prove negligence. There was no need to submit a nuisance theory, inasmuch as the act of obstructing of a natural watercourse was sufficient to make a case for liability. This case is not otherwise helpful in our analysis, since it deals with the flow of a natural waterway rather than with surface water. See Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698 (1952).
Among the cases particularly relied on by the defendant, Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App.1951), and Wells v. State Highway Commission, 503 S.W.2d 689 (Mo.1973), are clearly distinguishable, since they involve, respectively, the discharge of raw sewage and the filling of the plaintiff's lake with mud and silt. It is not difficult to find trespass in the discharge of matter so different from the ordinary surface water resulting from rain and snow. Haferkamp v. City of Rock Hill, 316 S.W.2d 620 (Mo. 1958), is of little help to the plaintiffs because its essential holding is that the giving of an instruction which would make defendants liable for any increase in the volume of water flowing in a natural drainage channel was prejudicially erroneous.
Hawkins, then, is the best example of a trespass submission emanating from this Court in a surface water case. There the defendant railroad built an embankment and a culvert designed to direct the course of surface water. The construction altered the direction and flow of the drainage, as intended. The engineer, however, failed properly to complete the job, omitting the guide wall necessary to "turn" the water into drainage ditches below the new culvert. The water, as a result, arched over the ditch bank and flooded plaintiff's adjacent field, rather than draining through the ditches. There was also evidence that the harmful effects of the installation could have been dissipated by the construction of a "wing wall" at an angle to divert the flow of water toward the natural channel, but the court held that negligence was not an essential element of the case. The plaintiff therefore was upheld in the submission of one of the two cases on a trespass theory and the other on a nuisance theory. The significant circumstance is that the defendant undertook construction designed to affect the flow of surface water. When the results were as shown by the evidence it was not difficult to find that kind of unlawful invasion which makes a trespass submission appropriate. The court observed that the trespass instruction "in its submitted facts, does not impose absolute liability."
The fact situation in Hawkins is far different from the one before us. The present defendants, in cultivating and embellishing a garden, engaged in typical suburban homeowners' activity. Neither the spreading of the manure nor the erection of the tie border was designed to have a significant effect on the drainage.[3] Even if the plaintiffs establish that the defendants' improvements caused the collection of surface water and its discharge in destructive quantities following heavy rains, we do not find in the record anything approaching an *213 "unauthorized entry" or "invasion" or "disturbance of possession" which is characteristic of trespass cases. The situation shown by this record is not the kind of situation in which the law imposes strict liability. We conclude that the trial court did not err in refusing the verdict directors requested by the plaintiffs.
The other cases relied on by the plaintiffs in support of their strict liability all involve conduct by an upper owner specifically designed to increase the flow of surface water onto lower land, and therefore are much closer to Hawkins than to the case before us. The cases have approved instructions based on collection and discharge in destructive quantities, with no requirement of showing negligence. These are Kiger v. Sanko, 1 S.W.2d 218 (Mo.App. 1927); Blydenburgh v. Amelung, 309 S.W.2d 150 (Mo.App.1958); Peters v. Shull, 379 S.W.2d 837 (Mo.App.1964). The submissions were similar to that referred to in Hawkins as "common law trespass."
Since we conclude that the plaintiffs did not request an appropriate alternate solution to that provided by the court, and the verdict went against them, there might be a question as to whether they are entitled to complain about the legal theory underlying the verdict directors actually given. We conclude, nonetheless, that the instructions prepared by the court on the model of MAI 22.06 are not shown to be erroneous, and that they adequately support the judgment. The term "nuisance" connotes the use of one's property in a manner which is not abstractly unlawful but which, in the circumstances, demonstrates an unreasonable interference with the rights of neighboring property owners.[4] Many cases involving claims of nuisance are tried to the court because they involve requests for injunctive relief, and so a judge determines issues of reasonable and unreasonable use, but if a nuisance case is to be submitted to a jury the jury must necessarily be instructed in terms of the reasonableness of the defendants' use of their property. MAI 22.06 is amply buttressed by authority in cases not dealing with surface water,[5] and our attention has not been called to a surface water case in which the submission of an issue of unreasonable use has been held to be erroneous. Numerous surface water cases hold that "nuisance" is one of the appropriate theories for submission,[6] and the cases regularly speak of questions of reasonableness of the defendant's conduct.[7] Nor do we find any support for *214 the plaintiff's argument that the issue of reasonable use may only be submitted in cases involving the second and third situations as set out in the Borgmann analysis, and that this issue is not appropriate in a case in the first (collection and discharge) category.
We do not agree with the claim advanced by the plaintiff that an instruction calling for a finding of unreasonable use is faulty in introducing negligence concepts into a case in which they do not belong. The question of unreasonable use in the context of MAI 22.06 relates not to foreseeability or to due care, but to the balancing of rights of adjoining owners, as is appropriate in nuisance cases. Theories of negligence and nuisance have different elements, and the instructions as given did not confound them. Although surface water cases may be submitted in a variety of ways, not all submissions are available in all cases. Since we conclude that a strict liability theory is not available in this case, and since the plaintiffs made no attempt to plead or prove negligence, only the nuisance theory, with the requirement of establishing unreasonable use, remains.
The plaintiffs also complain that Instruction No. 3 (manure spreading) hypothesizes a collection and direction of surface water "on defendant's property," whereas the proper submission should refer to a direction "from defendants' property." The plaintiffs' trial theory was that the cultivated and manured garden was highly absorbent, that it therefore collected surface water from adjacent grassy areas, and that, when the garden soil became saturated, the water was discharged from the garden onto the plaintiffs' land. The instruction accurately presents the plaintiffs' hypotheses of collection and discharge.
They also argue that Instruction No. 4 inaccurately stated the facts shown in evidence by hypothesizing the collection and discharge of surface water "from defendants' garden" following the laying of the ties whereas the evidence shows that the water collected to the west of the garden and was kept out of the garden by the ties, which acted as a dam. We do not believe that the jury was confused about the plaintiffs' theory by this submission, and are unwilling to reverse on such a hypertechnical point. Had there been a request for clarification when the court prepared Instruction No. 4 it undoubtedly would have been honored. There must be a rule of reason in the flyspecking of instructions.
Objection is taken to Instructions 3 and 4 because they use the phrases, "normal flow" and "normal flow of surface water," and because these phrases are not further defined. We believe that the phrases employ words of ordinary understanding, and that jurors would take them to mean the flow of water as it would have been but for the defendants' gardening improvements. Cf. State v. Rodgers, 641 S.W.2d 83, 85 (Mo. banc 1982). The plaintiffs should have requested a further definition or an explanatory instruction if they felt that the instruction as given was not sufficiently clear or precise.
The plaintiffs next object to the admission of evidence that the rising of the pool might have been avoided if there had been an underlying gravel bed, or that the 1977 incident might have been corrected through the use of pressure release valves which were at hand but not installed. They argue that this evidence would be appropriate only under counts of the original petition which had been abandoned previously, and that they operate to the plaintiffs' prejudice by introducing concepts of contributory negligence which are foreign to cases based on trespass or nuisance. Clearly at issue here, however, was the issue of the cause of the mishaps to the swimming pool. The jury well might have felt that the pool rose because of the plaintiffs' failure to take proper steps in installation and maintenance, rather than because of the direction *215 of surface water from or near the garden area and onto the plaintiffs' land. It might well believe, moreover, that a defendant's use would be unreasonable if it caused a properly positioned pool to rise out of the ground, but not unreasonable if the plaintiffs had failed to make use of the best information available concerning the foundation of their pool and the use of available mechanical devices. The jury was not instructed on contributory negligence and we do not believe that the evidence introduced impermissible considerations.
The plaintiffs contend, finally, that they are entitled to a new trial because the uncontradicted evidence shows that they are entitled to recover. We of course hold that there was, at the very least, a jury issue of liability.
The judgment of the circuit court is affirmed.
RENDLEN, C.J., GUNN and DONNELLY, JJ., and HOUSER, Senior Judge, concur.
HIGGINS, J., concurs in separate concurring opinion filed.
WELLIVER, J., concurs and concurs in separate opinion of HIGGINS, J.
BILLINGS, J., not sitting.
DONNELLY, J., withdraws his concurrence and dissents on April 26, 1983.
HIGGINS, Judge, concurring.
In this case defendants developed their land in a manner which caused surface water to gather and flow onto plaintiffs' property. In such cases the rule in Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 626 (Mo.1958) is applicable. Whether defendants were engaged in a project designed to alter the flow of surface water is irrelevant. E.g., Wells v. State Highway Comm'n, 503 S.W.2d 689, 690-92 (Mo.1973) (where defendant graded land and left in uncovered condition; held liable under Haferkamp rule).
I concur because there is no evidence that the damage to plaintiffs' property was the result of defendant's negligence in causing an accelerated and increased flow of surface water upon plaintiffs' land which exceeded the natural capacity of a natural drainway. See Miller Land Co. v. Liberty Township, 510 S.W.2d 473, 476 (Mo. banc 1974) (quoting Haferkamp, 316 S.W.2d at 625-26).
ON MOTION FOR REHEARING
PER CURIAM.
The appellants have filed a Motion for Rehearing which, for the most part, simply reflects the intendment of the opinion and our evaluation of the earlier cases from this Court and the Court of Appeals, rather than pointing to anything which the Court misinterpreted or overlooked. The motion points out what is actually a scrivener's error in the discussion of Instruction No. 3, and correction has been made.
The appellants cite Paddock v. Somes, 102 Mo. 226, 14 S.W. 746 (1890), for the proposition that the victim of a nuisance has no duty to expend money or effort to avoid or mitigate anticipated damage from a nuisance. The Missouri law of nuisance has been substantially refined since that ancient case, rendered by a sharply divided court. As the principal opinion points out, the law of nuisance balances the rights of neighboring landowners in the conduct of activities which are not inherently unlawful. See Committee Comment accompanying MAI 22.06. In balancing these rights concepts of relativity have substantial significance. Paddock appears to have been decided at a time when the difference between the concepts of trespass and nuisance was not so sharply delineated, and should no longer be followed to the extent that it conflicts with the views expressed in the present opinion. Evidence of the plaintiffs' fault, moreover, is appropriate in determining the element of causation, quite apart from any issue of contributory negligence. See Albers v. Church of the Nazarene, 698 F.2d 852 (7th Cir.1983).
The Motion for Rehearing is overruled.
HIGGINS and WELLIVER, JJ., would grant a rehearing.
NOTES
[1] The "common enemy" doctrine was announced by this Court in Abbott v. Kansas City, St. J. and C.B. R.R., 83 Mo. 271 (1884). The Court indicated that there was a "due care" modification which is not involved in this case. The modifications, including the "collect and discharge" modification on which the present plaintiffs reply, are discussed in Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 624-5 (Mo. 1958), which is the leading recent case. See Snodgrass and Davis, "The Law of Surface Water in Missouri," 24 Mo.L.Rev. 137, 281, 298 & nn. 235-241 (1959); Comment, "The Application of Surface Water Rules in Urban Areas," 42 Mo.L.Rev. 76, 88-91 & nn. 88-107 (1977).
[2] See Snodgrass and Davis, Note 1 supra at 295 nn.; Mehornay v. Foster, 132 Mo.App. 229, 111 S.W. 882 (1908); Camden Special Road District v. Taylor, 495 S.W.2d 93 (Mo.App. 1973).
[3] We are mindful of the setting of the ties in two inches of concrete, partly to keep water out of the garden, but do not consider this to be a substantial drainage project.
[4] "The use of property for a particular purpose and in a particular way in one locality may be reasonable and lawful, but such use may be unreasonable, unlawful and a nuisance in another locality." Clinic & Hospital, Inc. v. McConnell, 236 S.W.2d 384, 391 (Mo.App. 1951). See also Meinecke v. Stallsworth, 483 S.W.2d 633, 637 (Mo.App. 1972).
[5] See the instruction set out in Bower v. Hog Builders, Inc., 461 S.W.2d 784, 797 (Mo.1971), involving a pre-MAI submission of an instruction similar to MAI 22.06. MAI 22.06 was the basis for the instructions given in Genova v. City of Kansas City, 497 S.W.2d 555, 558 (Mo. App.1973) and the nuisance claim in the Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593, 602 (Mo. banc 1974). We note plaintiffs' observation that the plaintiffs in the last two cases sponsored, rather than challenging, the instructions given, but this observation is advanced in support of their contention, which we have rejected, that they are entitled to a strict liability submission. See also Comment, "The Law of Private Nuisance in Missouri," 44 Mo.L.Rev. 20, 21-22 (1979) discussing MAI 22.06 at pp. 52-54; Restatement of Torts, § 822 (1939).
[6] Hawkins v. Burlington Northern, Inc., 514 S.W.2d at 599; Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App.1951); Blydenburgh v. Amelung, 309 S.W.2d 150 (Mo.App. 1958). See also Spain v. City of Cape Girardeau, 484 S.W.2d 498, 506 (Mo.App. 1972) (reversing a strict liability submission and remanding for trial under alternative theories of nuisance and negligence); Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 791-2 (Mo.App. 1980).
[7] Haferkamp v. City of Rock Hill, 316 S.W.2d at 625; Spain v. City of Cape Girardeau, 484 S.W.2d at 502; Skaggs v. City of Cape Girardeau, 472 S.W.2d 870, 873 (Mo.App.1971); Wells v. State Highway Commission, 503 S.W.2d 689, 692 (Mo. 1973) ("within reasonable limits, and not recklessly," Young v. Moore, 241 Mo.App. 436, 236 S.W.2d 740, 744 (Mo. App.1951), from which the phrase just quoted is taken, and which cites numerous cases); Peters v. Shull, 379 S.W.2d 837, 840 (Mo.App. 1964) (reasonable use and development); Borgmann v. Florissant Development Company, 515 S.W.2d 189, 194, 196 (Mo.App. 1974); Miller Land Company v. Liberty Township, 510 S.W.2d 473, 476 (Mo. banc 1974); Roberts v. Hocker, 610 S.W.2d 321 (Mo.App. 1980), with extensive and valuable discussion.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE EUGENE HALSEY, IV AND CATHERINE A. GETZ
.
____________________
2011-1435
(Serial No. 10/744,522)
______________________
Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
______________________
JUDGMENT
______________________
GOKALP BAYRAMOGLU, Law Office of Gokalp Bayramoglu, of
Holland, Michigan, argued for appellant.
LYNNE E. PETTIGREW, Associate Solicitor, United States
Patent & Trademark Office, of Alexandria, Virginia, argued for
appellee. With her on the brief were RAYMOND T. CHEN,
Solicitor, and BENJAMIN D.M. WOOD, Associate Solicitor.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (LINN, PROST, and WALLACH, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
March 13, 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
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411 S.E.2d 386 (1991)
Janie Whitmer PREVATTE, Plaintiff,
v.
Lloyd Lawrence PREVATTE, Defendant.
Lloyd Lawrence PREVATTE, Plaintiff,
v.
Janie Whitmer PREVATTE, Defendant.
No. 9116DC48.
Court of Appeals of North Carolina.
December 17, 1991.
*387 McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for plaintiff-appellee.
Britt & Britt by Evander M. Britt, III, Lumberton, for defendant-appellant.
*388 WELLS, Judge.
As his first two assignments of error, husband contends the trial court erred by ruling that certain property acquired during the marriage was subject to equitable distribution. First, husband specifically argues that since the trial court found the Virginia antenuptial agreement valid and enforceable in North Carolina, it was error to further find that property acquired by the parties during the course of the marriage was subject to equitable distribution. Second, husband argues it was error for the trial court to grant wife's request for equitable distribution since wife waited more than five years after her initial request and after the absolute divorce to pursue her claim. We agree with husband's first assignment of error and therefore decline to address his second assignment of error.
The trial court concluded that the antenuptial agreement was valid in Virginia and thus enforceable in North Carolina under the full faith and credit clause, but nevertheless concluded that the agreement did not operate to bar wife's interest in property acquired while the parties were North Carolina residents and that such property was subject to North Carolina's equitable distribution law.
"A man and woman, contemplating marriage, may enter into a valid contract before marriage with respect to the property and property rights of either or both after marriage. The term `antenuptial agreement' or `marriage settlement' is often applied to such agreements." 2 R. Lee, North Carolina Family Law § 179 (4th ed.1980). Antenuptial agreements have long been recognized as valid in North Carolina. The legislature has enacted several statutory provisions recognizing their validity. See, e.g., N.C.Gen.Stat. § 50-20(d) (1987 & Supp.1991), N.C.Gen.Stat. § 52-10 (1991) and N.C.Gen.Stat. §§ 52B-1 to -11 (1987). The courts favor antenuptial agreements which determine only the property rights of the parties because they tend to encourage domestic peace and happiness. 2 R. Lee, supra, § 179. "Antenuptial agreements are not against public policy, and if freely and intelligently and justly made, are considered in many circumstances as conducive to marital tranquility and the avoidance of unseemly disputes concerning property." Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955).
This Court has held that § 50-20(d) of the Equitable Distribution Act mandates that the "policy favoring property settlements continue so that a prior settlement of spousal property rights would also constitute a plea in bar to the equitable distribution of `marital property' under Section 50-20." Small v. Small, 93 N.C.App. 614, 379 S.E.2d 273 (1989). This is true even if the property agreement was executed prior to the enactment of the Equitable Distribution Act. Small, supra; (Citations omitted). While the agreement at issue in Small was a postnuptial agreement, generally speaking, the principles which apply to postnuptial agreements also apply to antenuptial agreements. 2 R. Lee, supra, § 186. Both are forms of property settlements. Accordingly, we find that the rationale of Small is equally applicable to the case at bar. In Small, this Court held that a valid postnuptial agreement will serve as a bar to equitable distribution. We conclude that a valid antenuptial agreement may serve as a plea in bar to the equitable distribution of property acquired during the marriage.
Husband plead the agreement in defense of wife's claims and alleged that the agreement disposed of all their property rights which they acquired due to their marriage. Thus, the question becomes whether the agreement disposed of the wife's right to equitable distribution. The right to equitable distribution is a statutory property right. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987) (citing N.C.Gen. Stat. § 50-20(k) (1987) and Wilson v. Wilson, 73 N.C.App. 96, 325 S.E.2d 668 (1985)). This right may be waived by a complete property settlement which contains a general release of spousal property rights. Small, supra. In construing the meaning of an antenuptial contract, if the agreement is not ambiguous, "it should be construed in accordance with its wording to effectuate the intention of the parties as it existed at the time of the execution of the agreement." Stewart v. Stewart, 222 N.C. *389 387, 23 S.E.2d 306 (1942). "In arriving at this intent words are prima facie to be given their ordinary meaning." Id. (citing R.R. v. R.R., 147 N.C. 368, 61 S.E. 185 (1908)).
The pertinent provisions of the agreement in question provide:
WHEREAS, it is the desire of each of said parties to waive, relinquish, and renounce any and all property rights, statutory or otherwise, that may arise or result from the said marriage, in the property of the other.
. . . . .
1. Said party of the second part [Janie Whitmer] covenants and agrees that she shall, after the marriage, have no claim, demand, dower, alimony, support payments, statutory rights, or other right, title, claim or demand of, in or to the property, real, personal and mixed, now owned, or hereafter acquired by the party of the first part.
The party of the second party [sic] does hereby sell, assign, transfer and set over unto the party of the first part, his [sic] personal representative, heirs and assigns, any claim that she, after becoming his wife or widow, may be entitled to in the property, real, personal and mixed, which the party of the first part now owns or which he [sic] may hereafter acquire.
The above language of the antenuptial agreement clearly and unambiguously reflects the wife's intention to relinquish all of her property rights, both real and personal, which would arise out of her marriage to husband. Thus, we agree that the agreement released all the wife's property rights which arose out of the marriage and also operated to release her statutory right to equitable distribution. We hold that the antenuptial agreement was a valid bar to wife's claim and the trial court erred in concluding the property acquired during the marriage was subject to equitable distribution.
As his final assignment of error, husband contends the trial court erred in finding that he had not shown sufficient changed circumstances to justify the termination of alimony.[1] After careful review of the lengthy record in this case, we have been unable to find any order which has finally determined the issue of wife's entitlement to an award of permanent alimony. "[O]rders and awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to G.S. § 7A-27(d)." Stephenson v. Stephenson, 55 N.C.App. 250, 285 S.E.2d 281 (1981). Accordingly, we dismiss husband's last assignment of error as it is premature.
Reversed in part; dismissed in part.
PARKER and WYNN, JJ., concur.
NOTES
[1] We note that wife did purport to release her claims to alimony in the antenuptial agreement. We are aware that under the Uniform Premarital Agreement Act, N.C.G.S. § 52B-4(a)(4) (1987), parties to a premarital agreement can modify or eliminate spousal support. However, the Act became effective on July 1, 1987 and is applicable to premarital agreements executed on or after that date. 1987 N.C.Sess.Laws ch. 473, § 3. Therefore, the Act is not applicable to the agreement at issue in this case because it was executed in 1968, and the agreement did not bar wife's claim for alimony. See, Howell v. Landry, 96 N.C.App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.
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35 F.3d 560
BB/Naperville LPv.Worchell*
NO. 94-10075
United States Court of Appeals,Fifth Circuit.
Aug 16, 1994
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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370 Mass. 13 (1976)
345 N.E.2d 668
SIDNEY L. BOORSTEIN & another[1]
vs.
MASSACHUSETTS PORT AUTHORITY & others.[2]
Supreme Judicial Court of Massachusetts, Suffolk.
December 2, 1975.
April 1, 1976.
Present: HENNESSEY, C.J., QUIRICO, KAPLAN, & WILKINS, JJ.
*14 Stephen R. Katz (Lewis L. Whitman with him) for the plaintiffs.
George C. Caner, Jr. (Elizabeth Paine with him) for Massachusetts Port Authority.
WILKINS, J.
The plaintiffs, owners of three vacant parcels of land in East Boston, brought this action in the Land Court to quiet title to those premises. At issue is whether a pipeline easement taken in 1943 by the United States of America, and now purportedly held by the Massachusetts Port Authority (authority), still exists. The case was presented on a stipulation of facts which incorporated various documents. The judge ruled that the authority owned a pipeline easement over the plaintiffs' land and that the easement had not been extinguished. We affirm the judgment which dismissed the action.
On March 5, 1943, pursuant to Congressional authorization, the acting Secretary of the Navy executed and filed in the United States District Court for the District of Massachusetts a declaration of taking of an easement "to be used as a pipe line right of way in connection with the Naval Fuel Depot, East Boston, Massachusetts." The declaration stated that the "estate hereby taken ... is a perpetual easement for the construction, operation and maintenance of a pipe line...." One week later, a petition for condemnation was filed, and a judgment on the declaration of taking was entered which decreed that "a perpetual easement for the construction, operation and maintenance of a pipe line" would vest in the United States of America on completion of certain procedural steps. The easement ran for about two miles from the land of the naval fuel oil pier, through land now owned by the plaintiffs and through the General Edward Lawrence Logan International Airport (now owned by the authority) to the naval fuel depot on the Chelsea River. The pipeline was constructed along the easement taken for that purpose.
In the fall of 1964, the United States sold that portion of the naval fuel depot which abuts the easement. Ramada Inns, Inc., which now owns that land subject to a mortgage, *15 has constructed a hotel there. In January, 1965, the United States sold the fuel oil pier to the authority, purporting to transfer the easement as well. Although the authority has not used the pipeline since it acquired the easement, the parties agree that the authority has not abandoned any rights it may have acquired in the easement.
The plaintiffs argue that the easement has been extinguished, relying on several principles of State law. They characterize the easement as "appurtenant" to the dominant estate, the fuel depot property. They observe that such an easement may not be conveyed apart from the property which it benefits,[3] nor may it be used for the benefit of land other than the dominant estate.[4] They point out further that, when the purpose of such an easement no longer may be fulfilled, the easement must be treated as extinguished.[5] Applying these principles to the case before us, the plaintiffs note that the authority does not own any portion of the former naval fuel depot property, that a hotel has been constructed on that site, and that the easement cannot be used now for the specific purpose which prompted the Federal government to acquire it.
The authority replies that the principles of State law on which the plaintiffs rely have no application here because Federal law applies. The authority contends that under Federal law the easement is a perpetual easement for a pipeline, capable of existence and transfer wholly apart from any other land. It adds that, if this special public easement is to be analogized to private easements, it is like "a commercial easement in gross, conventionally transferable independent of any other interest."
The nature of the interest acquired by the Federal government and the transferability of that interest to the authority *16 are questions to be determined under Federal law. See United States v. 93.970 Acres of Land, 360 U.S. 328, 332-333 (1959); State Box Co. v. United States, 321 F.2d 640, 641 (9th Cir.1963); United States v. Certain Interests in Property, 271 F.2d 379, 384 (7th Cir.1959); United States v. Kansas City, Kan., 159 F.2d 125, 129 (10th Cir.1946).
By its actions in 1943, the Federal government acquired an unconditional, perpetual public easement for pipeline purposes which was not conditioned on the continued use of the pipeline by the Federal government. The recitation in the declaration of taking that the easement was "to be used as a pipe line right of way in connection with the Naval Fuel Depot" did not limit the Federal government's interest in the easement. The proposed use was recited in the declaration of taking not as a limitation but in order to demonstrate the existence of a public purpose for the condemnation and perhaps to assist in the assessment of damages. See United States v. Sixteen Parcels of Land, 281 F.2d 271, 274 (8th Cir.1960); United States v. 0.01 Acre of Land, 310 F. Supp. 1379, 1385-1386 (D. Md. 1970). Those words of purpose did not qualify the interest acquired through the judgment entered by the Federal court in the condemnation proceedings. Cf. United States v. Chartier Real Estate Co., 226 F. Supp. 285, 287-288 (D.R.I. 1964). The perpetual easement acquired is an independent interest in real estate which is not dependent on the government's owning other real estate which may be characterized as a dominant estate. Although the Federal government might have acquired an easement appurtenant to its fuel depot, as the plaintiffs argue, the fact is that the Federal government acquired a broader interest in the land now owned by the plaintiffs.
The government's discontinuance of the use of property acquired by eminent domain does not prompt title to revert to the owner, or successor in title, of the condemned estate. Higginson v. United States, 384 F.2d 504, 507 (6th Cir.1967), cert. denied, 390 U.S. 947 (1968), and cases cited. The Federal government may sell its interest in *17 property which it has acquired by condemnation and subsequently ceased to use. See United States v. Kansas City, Kan., 159 F.2d 125, 129 (10th Cir.1946) (transfer of perpetual easement for transmission lines); Mackay v. People, 75 Misc.2d 851, 855 (Sup. Ct. 1973) aff'd mem., 45 App. Div.2d 900 (N.Y.), appeal denied, 35 N.Y.2d 644 (1974) (fee and easements acquired by State from Federal government). See also, specifically as to this interest in land, the act of March 27, 1942, tit. II, ch. 199, § 201, 56 Stat. 177, which provided that the government could acquire by condemnation "any real property, temporary use thereof, or other interest therein" and thereafter "dispose of such property or interest therein by sale, lease, or otherwise...."
Because the interest was perpetual and capable of transfer, we conclude that the authority has a valid easement for pipeline purposes over the plaintiff's land. The judge of the Land Court was correct in dismissing the action.[6]
Judgment affirmed.
NOTES
[1] Vincent A. LoPresti.
[2] The other two name defendants, Ramada Inns, Inc., and Wachovia Mortgage Company, did not file answers and were defaulted. They have interests in one terminus of the pipeline easement involved in this case, the site of the former naval fuel depot.
[3] See Blood v. Millard, 172 Mass. 65, 70 (1898); 3 H. Tiffany, Law of Real Property § 761, at 213-214 (3d ed. 1939).
[4] Brassard v. Flynn, 352 Mass. 185, 190 (1967). Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 679 (1965).
[5] Anntco Corp. v. Shrewsbury Bank & Trust Co., 353 Mass. 250, 253 (1967). Comeau v. Manzelli, 344 Mass. 375, 381 (1962).
[6] Our attention to Federal law in answering the issues before us should not be understood to imply that the result we reach would be any different under State law. In Massachusetts, an easement acquired by eminent domain (such as for public travel or for water or sewer purposes) need not be associated with some publicly owned real estate. See Spear v. Bicknell, 5 Mass. 125, 129 (1809) (an easement for the public described as "a real franchise holden by the Commonwealth for the benefit of all the citizens"); 3 Nichols, Eminent Domain § 9.2 [2], at 273 (rev.3d ed. 1975). Easements, perhaps acquired by eminent domain but not held by a governmental agency, such as easements for railroad, telephone, or oil, gas, or water pipeline purposes, may be created and conveyed in gross (i.e., without an appurtenant or dominant estate). See Goodrich v. Burbank, 12 Allen 459, 461-462 (1866). Cf. Chase v. Sutton Mfg. Co., 4 Cush. 152, 167-168 (1849); Restatement: Property §§ 489-491 (1944). The basic question where the interest was acquired by eminent domain is what interest the taking authority intended to acquire as shown by the relevant documents.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LESTER JON RUSTON, )
)
Plaintiff, )
)
v. ) Civil Action Nos. 10-0869 (PLF)
) 10-0799 (PLF)
UNITED STATES SECRET SERVICE, ) 10-0872 (PLF)
) 10-1382 (PLF)
Defendant. ) 10-1489 (PLF)
____________________________________)
MEMORANDUM OPINION
This matter, brought pro se under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, is before the Court on defendant’s motion to vacate the order granting plaintiff
leave to proceed in forma pauperis (“IFP”) on the basis that he is an abusive filer. Upon
consideration of the motion, plaintiff’s “omnibus opposition,” defendant’s reply and plaintiff’s
surreply, the Court will grant defendants’ motion, revoke plaintiff’s IFP status and allow 30 days
for plaintiff to pay the $350 filing fee applicable to civil actions.1 In addition, the Court will
enjoin plaintiff from proceeding IFP in any future civil actions.
Plaintiff is a civil detainee at the Bureau of Prisons’ Springfield Medical Center in
Springfield, Missouri, having been found not guilty by reason of insanity for threatening to
assault and murder a federal magistrate judge. See United States v. Ruston, 565 F.3d 892, 894
(5th Cir. 2009). Whether plaintiff is subject to the filing fee requirements of the Prison
Litigation Reform Act (“PLRA”), codified at 28 U.S.C. § 1915, has not been decided
definitively, but at least one judge of this Court has determined that he is not. See Ruston v.
1
The Court has stayed the proceedings in the related cases listed above pending the
resolution of plaintiff’s IFP status.
Justice Department, No. 06-0224 (RMU) (D.D.C. Mar. 24, 2006) [Dkt. No. 6] (order granting
application to proceed in forma pauperis).2 The PLRA defines a prisoner as “any person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms [of supervised release]. 28
U.S.C. § 1915(h). Because plaintiff is not confined for any of those reasons – he was found not
guilty by reason of insanity – the Court agrees that he is not subject to the PLRA. See Ruston v.
Church of Jesus Christ of Latter-Day Saints, 304 Fed. Appx. 666, 668 (10th Cir. 2008)
(“Although we have never squarely decided the issue, other courts have found that mental
patients are not ‘prisoners’ within the meaning of the PLRA when they are confined as a result of
being found not guilty by reason of insanity.”) (citations omitted).
Plaintiff nevertheless has been allowed to file numerous IFP cases in this Court
and courts throughout the country, and most of his cases have been dismissed as frivolous or for
failure to state a claim. See Ruston v. Church of Jesus Christ of Latter-Day Saints, 304 Fed.
Appx. at 668 (affirming the dismissal of plaintiff’s complaint on the alternative ground of
frivolousness); Ruston v. Riggs, No. 08-1178, 2008 WL 2705194 (D.D.C. Jul. 8, 2008) (citing
Ruston v. Dallas County, No. 07-1076, 2008 WL 958076 (N. D. Tex. Apr. 9, 2008)) (discussing
Ruston's “extensive and abusive filing history,” consisting of “82 prisoner actions nationwide 42
of those in Texas federal district courts alone” and a resulting barring order) (citation and
footnote omitted); see also Ruston v. United States, No. 10-0805, 2010 WL 1960848, n.2
2
Pursuant to the PLRA, a prisoner may not proceed in forma pauperis if while
incarcerated he has filed at least three prior cases that were dismissed as frivolous, malicious, or
for failure to state a claim, unless he establishes that he is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
2
(D.D.C. May 17, 2010) (dismissing complaint as frivolous and noting that “this determination is
consistent with Ruston's history of delusional thinking.”); Ruston v. Deitle, No. 09-2039 (D.D.C.
Oct. 30, 2009) (dismissal on ground of frivolousness); Ruston v. Riggs, No. 08-1178 (D.D.C.
Jul. 8, 2008) (same); Ruston v. Bush, No. 08-0732 (D.D.C. Apr. 29, 2008), aff’d 298 Fed. Appx.
16 (D. C. Cir. 2008) (“The district court properly dismissed this action as frivolous pursuant to
28 U.S.C. § 1915(e) (2)(B), because the allegations lack an arguable basis either in law or fact.”)
(citation omitted); Ruston v. Gonzales, No. 06-1160 (D.D.C. Jun. 26, 2006) (docket entry listing
“Order Dismissing Case With Prejudice as Frivolous”). Defendant therefore asks this Court to
exercise its discretion to revoke plaintiff’s IFP status on the ground that he has abused the
privilege to proceed IFP. See Butler v. Department of Justice, 492 F.3d 440, 445 (D.C. Cir.
2007) (determining that in managing its dockets, the court’s “authority to deny IFP status to a
prisoner who has abused the privilege is clear.”); Hurt v. Social Security Administration, 544
F.3d 308, 310 (D.C. Cir. 2008) (“If [the three-strike] rule is appropriate for prisoners, who are
severely limited in their ability to earn money to pay filing fees, surely it is permissible for
similarly vexatious non-incarcerated litigants.”).
In deciding whether to revoke plaintiff’s IFP status, the Court considers “the
number, content, frequency, and disposition of [his] previous filings to determine if there is a
pattern of abusing the IFP privilege in his litigation history.” Butler v. Department of Justice,
492 F.3d at 446. In doing so, this Court may take judicial notice of, and rely upon, the rulings of
other courts. See Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 418-19 (D.C. Cir. 2009)
(reasoning that “it would make no sense to disregard evidence that a prisoner who has yet to
abuse the privilege here has blatantly abused it elsewhere.”). According to a PACER print-out,
3
plaintiff has filed 178 cases nationwide since 2001, some on the same day and many within days
of each other. See Def’s. Mot., Ex. A. Because of his “numerous frivolous and vexatious suits,
[the Northern District of Texas] barred [plaintiff in 2004] from filing any further actions [there]
unless he first obtained permission to file a civil complaint or paid the required filing fee.”
Ruston v. Dallas County, supra, 2008 WL 958076, at *1 (citation omitted). When plaintiff filed
the lawsuit against Dallas County in Texas state court, the federal defendants removed the case to
federal court. Id., at *2. The federal court determined that its earlier barring order did not cover
removed actions, dismissed the complaint with prejudice as frivolous and modified its barring
order to prohibit plaintiff “from proceeding with any civil action in this court - whether he filed it
in this court, he filed it in another court and it was removed to this court, or he filed in another
federal court and it was transferred to this court - unless he obtains from a district judge of this
court leave to proceed in this court.” Id., at *5. It further directed that “[i]f a civil action is
removed or transferred to this court, the case will be subject to summary dismissal unless, within
30 days of the date of removal or transfer, Ruston seeks, in writing, leave from a district judge of
this court to proceed in this court.” Id. In addition, the Eastern District of Louisiana has
described plaintiff as “a serial filer of lawsuits.” Def.’s’ Mot., Ex. B (Order and Reasons at 1).
A search of this Court’s dockets reveals that plaintiff has filed 21 civil actions
here since 2005, the majority of which were either transferred under 28 U.S.C. § 1406(a) or
dismissed pursuant to 28 U.S.C. § 1915(e) prior to assignment to a district judge. Plaintiff’s
cases that survived the Court’s screening process and, thus were assigned to a judge were filed
under the FOIA. See Civil Action Nos. 05-2314 (RMU), 06-0224 (RMU), 06-0782 (RMU),
10-0799 (PLF), 10-0869 (PLF), 10-0872 (PLF), 10-1382 (PLF), 10-1489 (PLF). More recently,
4
however, the Court dismissed in screening plaintiff’s FOIA complaint against the Bureau of
Prisons (“BOP”) because it was clear from the complaint that plaintiff had stated no claim.
Ruston v. Federal Bureau of Prisons, No. 10-0917 (ESH) (D.D.C. June 4, 2010) (Mem. Op. at
2). Plaintiff alleged that BOP had not responded to his request made in 2007, but the complaint
attachment established the opposite. In dismissing the action for failure to state a claim, Judge
Huvelle made the following observation:
Plaintiff attaches to this complaint a “Certificate of Identity” dated
April 17, 2010, but he does not state that he completed such a form and
returned it to the agency in response to the letter of November 23, 2007.
Instead, plaintiff makes wild, unsubstantiated allegations of a conspiracy
involving United States District Judge Ricardo Urbina of this Court and other
individuals not named in this action.
Id. True to form, plaintiff makes similar outlandish conspiracy allegations in each of the pending
FOIA complaints and, as discussed below, in his opposition to the pending motion.
Similar to the imminent danger exception under Section 1915(g) of the PLRA, the
District of Columbia Circuit recognizes “an endangerment exception” in abusive filer cases.
Mitchell v. Federal Bureau of Prisons, 587 F.3d at 420. But “[a]s with the PLRA,” the danger is
assessed by looking at the complaint’s allegations. Id. (citing Ibrahim v. District of Columbia,
463 F.3d 3, 6 (D.C. Cir. 2006)). Plaintiff claims that he is facing imminent danger “due to
Calvert and his co-conspirators soliciting crime of violence and acts of fraud against Plaintiff,
including multiple death threats . . . to prevent his leaving the United States.” Pl.’s Opp’n at 3.
Plaintiff further claims that he “has petitioned the United Kingdom for political asylum, due to
multiple attempts to murder [him], all covered up by Rick Calvert and the district court in
Dallas.” Id. Plaintiff identifies Calvert as an Assistant United States Attorney in Dallas, Texas.
5
Id. at 2. Not only are plaintiff’s bizarre accusations unbelievable, but they have nothing to do
with the defendant-agency’s disclosure obligations under the FOIA. They therefore provide no
basis for allowing plaintiff to proceed IFP in this FOIA case under the endangerment exception.
Based upon plaintiff’s litigation history, the Court finds that he has abused the
privilege to proceed IFP. Accordingly, it will (1) grant defendant’s motion to vacate the order
granting leave to proceed IFP, (2) revoke plaintiff’s IFP status in all of his pending civil actions,
and (3) enjoin plaintiff from proceeding IFP in this Court in any future civil actions. A separate
Order accompanies this Memorandum Opinion.
/s/_______________________
PAUL L. FRIEDMAN
DATE: November 4, 2010 United States District Judge
6
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVE GARY JONES, JR.,
Plaintiff-Appellant,
v.
No. 98-2704
WELLS FARGO GUARD SERVICES, Borg
Warner Protective Services,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-98-2725-CCB)
Submitted: February 23, 1999
Decided: April 29, 1999
Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Steve Gary Jones, Jr., Appellant Pro Se. Theresa Wirtz Hajost,
PORTER, WRIGHT, MORRIS & ARTHUR, Washington, D.C., for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Steve Gary Jones appeals the district court's order granting a
motion to compel arbitration and a motion to dismiss. Under the Fed-
eral Arbitration Act (FAA), 9 U.S.C. § 16(a)(1) (1994), immediate
appellate review is available for orders refusing to compel arbitration,
however, appellate review is generally not available for orders com-
pelling arbitration "until after the arbitration has gone forward to a
final award." American Cas. Co. v. L-J, Inc. , 35 F.3d 133, 135 (4th
Cir. 1994) (quotation omitted).
An order compelling arbitration is final for purposes of appellate
jurisdiction under the FAA if it is the result of an"independent pro-
ceeding" in which "the sole issue before the district court is the
arbitrability of the dispute." Humphrey v. Prudential Sec. Inc., 4 F.3d
313, 317 (4th Cir. 1993). If the order arises in an"embedded proceed-
ing" and the district court renders all claims subject to arbitration, the
order is not immediately appealable. See In re Pisgah Contractors,
Inc., 117 F.3d 133, 136 (4th Cir. 1997). An embedded proceeding is
one in which the arbitration issue is not the sole issue in the action
but is raised as an incidental issue in an underlying action raising
other claims for relief. See Jeske v. Brooks, 875 F.2d 71, 73 (4th Cir.
1989).
Jones' appeal presents a typical embedded action in which the dis-
trict court ordered arbitration and rendered all of Jones' claims subject
to arbitration. The arbitrability of Jones' suit was not the sole issue
below, rather it arose as an issue incident to an underlying action
claiming employment discrimination. The district court did not
resolve the merits of Jones' claim, but found them arbitrable. Thus,
Jones' appeal of the order compelling arbitration is interlocutory and
should be dismissed.
2
An order compelling arbitration in an embedded proceeding is
interlocutory even when "the practical effect of the district court's
actions was to render a final resolution as to all issues before it."
Humphrey, 4 F.3d at 317. The district court's order granted a motion
to compel arbitration in an embedded proceeding, and thus the order
was not final under the FAA.
Accordingly, we dismiss Jones' appeal as interlocutory. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
3
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202 B.R. 889 (1996)
In re Carla Mae KALITA, f/k/a Carla Mae Wilson, Debtor.
Tammy K. VOGEL, a/k/a Tammy K. Sinkovic, Plaintiff,
v.
Carla Mae KALITA, f/k/a Carla Mae Wilson, Defendant.
Bankruptcy No. 95-83316, Adversary No. 95-8293.
United States Bankruptcy Court, W.D. Michigan.
November 18, 1996.
*890 *891 Jack E. Boynton, Traverse City, MI, for Plaintiff.
Roy C. Hayes III, Charlevoix, MI, for Defendant.
SUPPLEMENTAL OPINION REGARDING POSSIBLE APPLICABILITY OF COLLATERAL ESTOPPEL
JAMES D. GREGG, Bankruptcy Judge.
I. ISSUES
Does a Michigan state court criminal conviction for felonious assault, based upon a nolo contendere plea, collaterally estop a defendant-debtor from litigating a nondischargeability action under section 523(a)(6) of the Bankruptcy Code?[1]
Does a Michigan state court civil judgment for assault and battery, based upon a "true default," i.e., there was no appearance and absolutely no participation in the state court action, collaterally estop a defendant-debtor from litigating a nondischargeability action under section 523(a)(6) of the Bankruptcy Code?[2]
II. BACKGROUND
The relevant factual background and procedural history which give rise to this motion for summary judgment are essentially undisputed. On August 25, 1984, Tammy K. Vogel (a/k/a Tammy K. Sinkovic) ("Vogel") and Carla Mae Kalita (f/k/a Carla Mae Wilson) ("Kalita") were involved in an altercation in which Vogel was injured. This incident resulted in a criminal prosecution against Kalita. On June 28, 1985, Kalita was convicted of the crime of felonious assault. See Mich. Comp.Laws Ann. § 750.82. The 1985 Judgment of Sentence indicates that Kalita's conviction was based on a plea of "n.c." or "nolo contendere." See Plaintiff's Brief, Exhibit B. In an affidavit attached to her Brief in Opposition to Plaintiff's Motion for Summary Judgment, Kalita stated the reason for her nolo contendere plea: "That on or about June 28, 1985 affiant pleaded no contest to the criminal charge of Felonious Assault, because she was told by her attorney she could not get a fair trial on account of small town politics in the town of Pinckney, Michigan." See Kalita's Affidavit, ¶ 14.
On May 13, 1985, Vogel filed a civil complaint against Kalita in the Michigan State Circuit Court for the County of Livingston. The complaint alleged that on or about August 25, 1984, "Defendant did assault and batter the Plaintiff with a knife," and, as a result, Vogel "sustained physical injuries, including, but not limited to, multiple lacerations and stab wounds to her abdomen, face, and upper extremities." Based on these allegations, Vogel claimed damages in excess of $10,000. A copy of the 1985 complaint was attached as Exhibit A to Plaintiff's Brief in Support of Motion for Summary Judgment ("Plaintiff's Brief").
Kalita was served with the civil complaint dated May 13, 1985, but failed to answer or appear. On November 25, 1985, a Default Judgment was entered in favor of Vogel and against Kalita in the amount of $25,000.00, plus taxable costs and interest. See Plaintiff's Brief, Exhibit D. In her Brief in Opposition *892 and the accompanying affidavit, Kalita attempted to explain the circumstances which led to the 1985 default judgment. Kalita claims that she "took no steps to defend Ms. Vogel's civil suit, because she had given the complaint to her attorney who told her he would take care of it." See Kalita's Affidavit, ¶ 16. Moreover, Kalita claims that she was incarcerated on the Felonious Assault charge when the November 25, 1985 default judgment was entered against her. See Kalita's Affidavit, ¶ 15.
Apparently, Vogel did not have much success in collecting the damages awarded against Kalita in the 1985 Judgment. Ten years later, Vogel filed another complaint in the Michigan Circuit Court for the County of Livingston to renew the 1985 Judgment. See Plaintiff's Brief, Exhibit E. The 1995 Complaint recited the basis for the original 1985 judgment for $25,000 and claimed additional interest in the amount of $44,554.89 based on a 12% interest rate compounded annually.
On May 26, 1995, the state circuit court entered another judgment against Kalita in the amount of $69,641.89, representing the original 1985 judgment plus accrued interest. See Plaintiff's Brief, Exhibit F. In her Brief in Support, Vogel alleges that the 1995 complaint was properly served on Kalita and that she failed to respond. Kalita does not dispute this contention.
On July 3, 1995, Kalita filed a Voluntary Petition under chapter 7 of the Bankruptcy Code. On August 21, 1995, Vogel filed an adversary proceeding in which she alleged that the debts arising from the civil judgments were based on Kalita's willful and malicious conduct. Vogel seeks a determination that the judgment debt is excepted from discharge under section 523(a)(6).
In her Motion for Summary Judgment and Brief in Support, Vogel argues that she is entitled to judgment as a matter of law on her nondischargeability action against Kalita. Specifically, Vogel contends that Kalita's state court conviction for felonious assault and the subsequent civil judgments for assault and battery were based on Kalita's willful and malicious conduct. Therefore, Vogel asserts that Kalita is collaterally estopped from defending the facts in the current nondischargeability action.
In response, Kalita raises a factual issue by claiming that she was acting in self-defense at the time she stabbed and slashed Vogel with a "fishing fillet knife" during the 1984 altercation. See Kalita's Affidavit. Kalita argues that her criminal conviction was based on a plea of nolo contendere which is not entitled to preclusive effect in any subsequent civil actions. She also contends that both the 1985 civil judgment and the 1995 judgment were based on "true defaults" and that the issues were not actually litigated. Thus, Kalita concludes that the state court criminal and civil judgments do not collaterally estop her in this adversary proceeding.[3]
III. DISCUSSION
This court has jurisdiction over the base bankruptcy case and this adversary proceeding. 28 U.S.C. § 1334; W.D.MICH.L.R. 57 (cases and proceedings referred to bankruptcy court). This adversary proceeding is a core proceeding. 28 U.S.C. § 157(b)(2)(l).
Rule 7056 of the Federal Rules of Bankruptcy Procedure incorporates by reference Rule 56 of the Federal Rules of Civil Procedure which provides in part:
The judgment sought shall be rendered forthwith if the pleading, 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 party moving for summary judgment bears the initial responsibility *893 of informing the court of the basis of its motion and identifying those portions of the record which demonstrate the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact on which the nonmoving party will bear the burden of proof at trial. FED. R.CIV.P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. If, after adequate discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Id.
As the moving party, Vogel has met her initial burden of advising the court of the basis for her motion and identifying the relevant portions of the record which demonstrate an absence of material issues of fact. Vogel has provided the court with copies of the state court judgments and the related civil complaints. Kalita does not contest the authenticity or admissibility of any of the state court pleadings or documents submitted by Vogel. Instead, Kalita challenges the preclusive effect of the prior judgments on the instant proceeding. This is an issue of law which can, and should, be resolved through summary judgment.[4] Under these circumstances, Vogel bears the burden of establishing that the requirements of collateral estoppel have been met. Spilman v. Harley, 656 F.2d 224, 229 (6th Cir.1981).
A. The Distinction Between Res Judicata and Collateral Estoppel
In her legal memorandum, Vogel addresses the "confusingly related and often carelessly mis-named doctrines of collateral estoppel, res judicata, issue preclusion and claim preclusion. . . ." See Plaintiff's Brief, p. 3. While Vogel may be correct in describing the doctrines of res judicata and collateral estoppel as "confusingly related and often carelessly mis-named," they are not the same. The difference between res judicata ("claim preclusion") and collateral estoppel ("issue preclusion") has been explained as follows:
The primary difference between res judicata and collateral estoppel, as developed in Cromwell v. County of Sac, [94 U.S. 351, 24 L.Ed. 195 (1877)] is that res judicata bars a second action on the same claim or cause of action including all matters that were raised or could have been raised in the first action, while collateral estoppel precludes relitigation of only such issues as were actually raised, litigated and determined in the first action and the decision of which were necessary to the judgment rendered.
1B JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE ¶ 0.443[3] (2d ed. 1995).
The distinction between res judicata and collateral estoppel has also been observed by the United States Supreme Court in the context of bankruptcy proceedings involving exceptions to discharge. In Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979), the Supreme Court held that the doctrine of res judicata does not apply in bankruptcy dischargeability proceedings. The Brown case involved a dispute between a creditor, a debtor and his guarantor. A state court action between the parties was resolved by stipulated judgment. Thereafter, the debtor filed for bankruptcy protection and the guarantor filed a nondischargeability action alleging that the debtor *894 had fraudulently induced him to guarantee the loan.[5] In response, the debtor argued that the prior state court proceeding did not result in a finding of fraud, and that the nondischargeability proceeding was barred by the doctrine of res judicata because it involved the same debt at issue in the state court action. The Supreme Court reversed the lower court rulings in favor of the debtor and held that the doctrine of res judicata did not bar the bankruptcy court from deciding the issue of whether the debt was dischargeable. Brown v. Felsen, 442 U.S. at 138-39, 99 S.Ct. at 2212-13. In a footnote to its opinion, the Supreme Court indicated that although the doctrine of res judicata did not apply, the doctrine of collateral estoppel may be applicable; but the Court expressly refrained from deciding the issue:
This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. . . . If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment.
Brown v. Felsen, 442 U.S. at 139, n. 10, 99 S.Ct. at 2213, n. 10 (citations omitted). In a footnote to a subsequent opinion, the Supreme Court answered this question the doctrine of collateral estoppel may apply in bankruptcy proceedings involving exceptions to discharge. See Grogan v. Garner, 498 U.S. 279, 284, n. 11, 111 S.Ct. 654, 658, n. 11, 112 L.Ed.2d 755 (1991) (principally holding that the preponderance of evidence standard applies in nondischargeability actions).
The doctrine of res judicata does not bar Vogel from filing an adversary proceeding against Kalita alleging that the judgment debt should be excepted from discharge. See supra, Brown v. Felsen. Nor does res judicata prohibit Kalita from defending against the nondischargeability action. Id. This court must make its own determination as to whether or not the debt owed by Kalita to Vogel should be excepted from the discharge in bankruptcy. However, a determination of the ultimate legal issue may be governed by any factual issues that were actually and necessarily decided in the prior state court actions. See Grogan v. Garner, 498 U.S. 279, 284, n. 11, 111 S.Ct. 654, 658, n. 11, 112 L.Ed.2d 755 (1991). In sum, the issue before this court is not one of res judicata, but rather, a question of collateral estoppel. Is this court bound by the prior state court rulings in accordance with the principles of full faith and credit?
B. General Principles of Full Faith and Credit
Article IV, section 1 of the United States Constitution requires that "full faith and credit" be given by each state to the acts, records, and judicial proceedings of every other state. U.S. CONST., art. IV, § 1. The Constitution further authorizes Congress to enact laws that prescribe the manner in which such acts, records and proceedings are proved and the effect thereof. Id. Congress has exercised its authority through the enactment of section 1738 of the Judicial Code which provides in part that: "judicial proceedings *895 [of any court of any state] shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. § 1738.
The United States Court of Appeals for the Sixth Circuit has recently summarized the Constitutional and statutory principles of full faith and credit as they relate to the preclusive effect of prior state court rulings in the context of nondischargeability actions in a subsequent bankruptcy case:
The doctrine of collateral estoppel applies in dischargeability actions under 11 U.S.C. § 523(a). In determining whether to accord preclusive effect to a state-court judgment, we begin with the fundamental principle that "judicial proceedings [of any court of any state] shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. § 1738. The principles of full faith and credit reflected in § 1738 generally require "that a federal court must give to the state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Bankruptcy courts' exclusive jurisdiction does not alter this rule.
Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51, 53 (6th Cir.1995) (citations omitted). However, the analysis does not end here. If the relevant state law would give preclusive effect to the prior state court judgment, then the federal court must determine whether there is a federal policy exception to the application of the full faith and credit doctrine:
In cases involving claims within the exclusive jurisdiction of the federal courts, a court determining whether or not to apply collateral estoppel first must determine if a state court judgment would receive preclusive effect in the state where it was rendered. If the answer to this question is yes, the court must give that judgment preclusive effect unless it determines that an exception to § 1738 should apply. This determination turns on the question of whether "the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738. To resolve this question, courts must consider the particular federal statute and the issue involved in the federal proceeding, and keep in mind that "the primary consideration must be the intent of Congress."
Bursack, 65 F.3d at 53 (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 386, 105 S.Ct. 1327, 1335, 84 L.Ed.2d 274 (1985)).
In accordance with the principles of full faith and credit, this court must determine the preclusive effect, if any, of the prior Michigan judgments under Michigan law. Assuming there is a preclusive effect in this adversary proceeding, the court must then decide whether federal policy creates an exception to the doctrine of full faith and credit.
C. Is the Debtor Collaterally Estopped by the Prior Criminal Conviction?
As a result of the altercation with Vogel, Kalita was convicted on June 28, 1985 of "Felonious Assault" under the applicable Michigan statute:
Felonious Assault Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.
Mich.Comp.Laws Ann. § 750.82.
Vogel observes that the crime of Felonious Assault is a crime of specific intent which requires that the defendant possess the requisite intent to injure the victim. See Plaintiff's Brief at 8 (citing People v. Crook, 162 Mich.App. 106, 412 N.W.2d 661 (1987); People v. Davis, 126 Mich.App. 66, 337 N.W.2d 315 (1983), appeal after remand, 135 Mich. *896 App. 630, 354 N.W.2d 287 (1984); People v. Frazier, 100 Mich.App. 776, 300 N.W.2d 408 (1980); Fish v. People, 62 F.2d 659 (6th Cir.1933)). Thus, Vogel asserts that a conviction for the crime of Felonious Assault under Michigan law necessarily entails a finding that the injuries caused by Kalita were "willful and malicious" and therefore entitled to collateral estoppel effect in this nondischargeability litigation.
Because section 523(a)(6) is phrased in the conjunctive, the court must determine that the injury caused by the debtor was both willful and malicious, in order for a debt to be deemed nondischargeable. See, e.g., Sparks v. Adams (In re Adams), 147 B.R. 407, 412 (Bankr.W.D.Mich.1992). The Bankruptcy Code does not define the terms "willful and malicious"; however, the United States Court of Appeals for the Sixth Circuit has held that the term "willful" refers to a deliberate or intentional act that necessarily leads to injury. Perkins v. Scharffe, 817 F.2d 392 (6th Cir.1987), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 112 (1987). See also Frantz v. Schuster (In re Schuster), 171 B.R. 807, 811 (E.D.Mich.1987) (criminal conviction for specific intent crime involving child molestation was "willful and malicious"). With respect to the malice requirement, the United States Supreme Court has stated, "Malice, in common acceptation, means ill will against a person; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse." Tinker v. Colwell, 193 U.S. 473, 486, 24 S.Ct. 505, 508, 48 L.Ed. 754 (1904) (quoted in Sparks v. Adams, 147 B.R. at 416-17). It can be easily inferred that a conviction for Felonious Assault under Michigan law necessarily includes a determination that the defendant's conduct was willful and malicious within the meaning of section 523(a)(6).
Kalita does not dispute that Felonious Assault is a crime of specific intent under Michigan law. Instead, Kalita argues that her state court conviction has no preclusive effect in this adversary proceeding because the conviction was based on a plea of nolo contendere. According to Black's Law Dictionary, nolo contendere is Latin phrase meaning "I will not contest it," and is defined as follows:
[A] plea in a criminal case which has a similar legal effect as pleading guilty. Type of plea which may be entered with leave of court to a criminal complaint or indictment by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it. The principal difference between a plea of guilty and a plea of nolo contendere is that the latter may not be used against the defendant in a civil action based upon the same acts. . . .
BLACK'S LAW DICTIONARY 1048 (6th ed. 1990) (emphasis added) (citations omitted).
In describing the effect of a nolo contendere plea, the Michigan Supreme Court has stated:
The primary purpose of a plea of nolo contendere is to avoid potential future repercussions which would be caused by the admission of liability, particularly the repercussions in potential future civil litigation. A nolo contendere plea does not admit guilt, it merely communicates to the court that the criminal defendant does not wish to contest the state's accusations and will acquiesce in the imposition of punishment. To the extent a nolo contendere plea is an implicit admission of guilt, it is such an admission only for the purposes of the criminal proceeding in which the plea is entered.
Lichon v. American Universal Ins. Co., 435 Mich. 408, 421, 459 N.W.2d 288 (1990).
In Lichon, the plaintiff filed an insurance claim for fire damage to commercial property. The insurer initially rejected the claim and the plaintiff filed suit seeking payment under the policy. The plaintiff eventually reached a settlement with his insurance company; however, before the settlement was paid, the plaintiff was charged with the crime of burning real property under Michigan Law. The plaintiff entered a plea of nolo *897 contendere to the lesser charge of attempted burning of real property and was convicted and sentenced to a year in jail. Because of the plaintiff's plea and conviction, the insurance company refused to honor the settlement and moved for summary judgment in the pending civil action. The insurance company argued that the plaintiff was barred from recovering on his claim by the anti-fraud provisions in the policy and that the plaintiff was collaterally estopped by his conviction from denying his role in setting the fires.
The trial court granted the insurer's motion for summary judgment and the Michigan Court of Appeals affirmed. However, the Michigan Supreme Court reversed and held as follows:
The plaintiff is not precluded from litigating the issue whether he burned his business because his nolo contendere plea to a charge of attempted burning of real property is not an admission of guilt that can be used against him in subsequent civil or criminal litigation.
Lichon, 435 Mich. at 415, 459 N.W.2d 288. In support of this holding, the majority opinion relied in part on Rule 410 of the Michigan Rules of Evidence which provides:
Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
Lichon, 435 Mich. at 418, 459 N.W.2d 288 (quoting MRE 410) (emphasis added by Michigan Supreme Court). The Michigan Supreme Court also relied on an opinion from the United States Court of Appeals for the Fifth Circuit which described the effect of a nolo contendere plea as follows:
A plea of nolo contendere performs a specific function. As a statement of the defendant for which he may, in another proceeding or on another occasion be called upon to account, it admits nothing. It is the same as a plea of not guilty.
Lichon, 435 Mich. at 421, 459 N.W.2d 288 (1990) (quoting United States v. Williams, 642 F.2d 136, 139 (5th Cir., 1981)). In addition, the majority opinion in Lichon, also cited a leading commentary on the subject:
It has been established in the federal courts that the plea of nolo contendere "does not create an estoppel, but . . . is an admission [of guilt] for the purposes of the case" in which the plea is made. In any subsequent action, whether arising out of the same facts or not, neither the nolo plea nor the conviction based on the plea may be admitted as either an admission or proof of guilt.
Lichon, 435 Mich. at 422, 459 N.W.2d 288 (quoting 2 WEINSTEIN & BERGER, EVIDENCE, ¶ 410[06], pp. 410-44 to 410-45).
Having concluded that the plea of nolo contendere did not create an estoppel, the Lichon majority further determined that the plaintiff was not collaterally estopped by the conviction that had resulted from the plea. In so holding, the Michigan Supreme Court concluded that the criminal conviction did not satisfy the doctrine of "mutuality." The Michigan Supreme Court described the mutuality requirements as follows:
The doctrine of mutuality of estoppel requires that in order for a party to estop an adversary from relitigating an issue that party must also have been a party, or a privy to a party, in the previous action. In other words, `[t]he estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him.' Although there is a trend in modern law to abolish the requirement of mutuality, this Court reaffirmed its commitment to that doctrine in 1971 in Howell [v. Vito's Trucking & Excavating Co., 386 Mich. 37, 191 N.W.2d 313]. Mutuality of estoppel remains the law in this jurisdiction and bars American Universal from using Lichon's criminal conviction to settle an issue in this civil case, *898 since the insurance company was not a party to the criminal case and would not have been bound by an acquittal had one resulted.
Lichon, 435 Mich. at 427-428, 459 N.W.2d 288 (citations omitted).
In the pending adversary proceeding, Vogel argues that the issue of malicious intent was "actually litigated" in the 1985 criminal case because the Michigan Court Rules of 1985 required that the trial court conduct a hearing to determine the accuracy of the conviction prior to allowing Kalita to enter her plea of nolo contendere. See Plaintiff's Brief, p. 5 (citing MCR 6.101 (1985)). A similar argument was explicitly rejected by a majority of the Michigan Supreme Court in Lichon:
The taking of Lichon's nolo contendere plea cannot be considered "actual litigation," at least not in terms of collateral estoppel jurisprudence. The essence of a nolo contendere plea is in its name, "nolo contendere," or "I will not contest it." If the charges are uncontested, they are necessarily unlitigated. Neither can we accurately say that the procedures followed by the judge in establishing a factual basis for taking a nolo contendere plea constitute "actual litigation."
Lichon, 435 Mich. at 429, 459 N.W.2d 288.
Based on Michigan law, this court holds that a plea of nolo contendere and a conviction based on the plea have no preclusive effect on subsequent civil litigation. Therefore, Kalita's 1985 conviction for Felonious Assault has no collateral estoppel effect in this nondischargeability action.
D. Is the Debtor Collaterally Estopped by the Prior Civil Default Judgment?
Vogel also relies on the 1985 civil judgment against Kalita to argue that Kalita is collaterally estopped from denying that her conduct was "willful and malicious." Kalita responds that the state court civil judgment was silent with respect to the basis for liability and, therefore, cannot be used for purposes of collateral estoppel. The "Default Judgment" dated November 22, 1985, provides in full:
This matter having come before the Court and the Court being advised in the premises;
IT IS HEREBY ORDERED AND ADJUDGED that Judgment shall be and hereby [is] entered in favor of the Plaintiff and against the Defendant in the above captioned case in the sum of $25,000, plus taxable costs and interest.
Plaintiff's Brief, Exhibit D.[6]
Although the judgment itself is silent with respect to the grounds for imposing liability, it is clear that the 1985 civil judgment was based upon the common law tort of assault and battery. Vogel's state court civil complaint specifically alleges that "the Defendant did assault and batter the Plaintiff with a knife" and that as a result, Vogel suffered bodily injuries and incurred a variety damages. See Plaintiff's Brief, Exhibit A. Most importantly, the two page complaint is limited to the single claim for assault and battery and no other basis of liability is alleged.[7]
Assault and battery is an intentional tort under Michigan law. Cf. Frankenmuth Mut. Ins. Co. v. Beyer, 153 Mich.App. 118, 395 N.W.2d 36 (1986) (insurance company not required to defend insured who allegedly committed intentional tort of assault and battery). Therefore, a civil judgment for assault and battery necessarily includes a finding of *899 intentional misconduct that could be described as "willful and malicious." Nevertheless, Kalita argues that the civil judgment has no preclusive effect because it was obtained by default. According to Kalita's affidavit, she was incarcerated at the time the default judgment was entered on November 25, 1985. See Kalita Affidavit, ¶ 15.[8] Moreover, Kalita further alleges that she "took no steps to defend Ms. Vogel's civil suit, because she had given the complaint to her attorney who told her he would take care of it." Id., ¶ 16. Therefore, the civil judgment against Kalita is a "true default judgment," i.e., judgment was entered solely because Kalita failed to file an answer or take any steps to defend herself in the state court action.
1. Sixth Circuit Precedent
There are two major opinions from the United States Court of Appeals for the Sixth Circuit which address the collateral estoppel effect of a default judgment rendered by a state court in a subsequent federal action between the same parties. See Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51 (6th Cir.1995). Discussion of these cases is instructive.
In Spilman, the Sixth Circuit was faced with the issue of whether a bankruptcy court should decide each dischargeability action de novo, or whether the parties could be collaterally estopped by a prior state court judgment regarding the nature of the debt. The plaintiff in Spilman was a judgment creditor who had received a large award in Ohio state court for personal injuries she suffered when she was struck by an automobile that was operated by an allegedly intoxicated defendant. After the defendant filed for bankruptcy, the plaintiff brought a nondischargeability action. The bankruptcy court granted the defendant's motion for summary judgment stating that the plaintiff was collaterally estopped from asserting that the defendant's conduct was willful because the defendant had previously been found liable for negligence as opposed to an intentional tort. The district court affirmed and the plaintiff filed a pro se appeal with the Sixth Circuit.[9]
The Sixth Circuit reversed the lower courts and held that the plaintiff was not collaterally estopped from arguing that the defendant's conduct had been willful and malicious. As an initial matter, the court of appeals held that collateral estoppel could be applied in bankruptcy actions to preclude the relitigation of factual issues that were previously decided in a state court action provided that all the requirements of collateral estoppel were met. Spilman, 656 F.2d at 228. The Spilman court provided the following guidelines for the use of collateral estoppel in dischargeability proceedings: "Collateral estoppel requires that the precise issue in the later proceedings have been raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome." Id. at 228 (citations omitted).
The Spilman court held that collateral estoppel was not applicable in the bankruptcy case because the prior state court judgment was ambiguous with respect to the issue of whether the defendant's conduct was willful and malicious and because the bankruptcy court had not considered any other pleadings in the state court record. The court of appeals reasoned, "[t]he person asserting the estoppel has the burden of proving the requirements *900 of estoppel have been met. If the state court record does not show the issue was necessarily and actually litigated in the prior non-bankruptcy proceeding, collateral estoppel is inapplicable." Id. at 229 (citations omitted) (emphasis added). The Sixth Circuit concluded that the defendant had failed to carry its burden of establishing the elements of collateral estoppel. The Sixth Circuit reversed and remanded the case. The bankruptcy court was directed to examine the entire record of the state court proceeding to determine whether or not the issue of willful and malicious conduct had actually been litigated in state court and was necessary to the outcome of the case. If so, the plaintiff could be estopped by the prior state court ruling; if not, the plaintiff should be allowed to proceed with her nondischargeability action and to present evidence before the bankruptcy court that the defendant's conduct was willful and malicious. Id.
In this adversary proceeding, Kalita seizes upon the language in the Spilman opinion in which the court of appeals stated: "If important issues were not actually litigated in the prior proceeding, as is the case with a default judgment, then collateral estoppel does not bar relitigation in the bankruptcy court." Spilman, 656 F.2d at 228 (citations omitted) (emphasis added). Kalita argues that because the state civil judgment in favor of Vogel was a default judgment, actual litigation did not occur.
Vogel relies on a more recent Sixth Circuit decision which held that a debtor was collaterally estopped from relitigating the issue of fraud based on a prior state court judgment. In re Bursack, 65 F.3d 51 (6th Cir.1995). In Bursack, the plaintiff filed suit against the defendant in Tennessee state court seeking to recover damages in connection with several loan transactions in which the defendant had allegedly made false representations and submitted false financial statements to the plaintiff. The defendant hired an attorney, filed an answer and counterclaim, and participated in two depositions during which he was represented by counsel. However, on the eve of trial, the defendant announced that he would not appear. The trial proceeded in his absence. The trial court submitted the fraud claim to the jury. A verdict was rendered against the defendant and punitive damages were awarded.
Thereafter, the defendant filed a chapter 7 case. The plaintiff brought a nondischargeability action alleging that the debt was for money obtained by fraud or false financial statements. The bankruptcy court granted the plaintiff's motion for summary judgment and held that the debt was nondischargeable based on the collateral estoppel effect of the prior Tennessee state court fraud judgment. The district court affirmed and the defendant-debtor appealed.
On appeal, the defendant argued that he was not estopped from contesting the issues of fraud and false financial statements because he had not participated in the trial in Tennessee state court. The defendant argued that the fraud issues were not actually litigated. The Sixth Circuit rejected this argument and determined that the prior judgment would be given preclusive effect under Tennessee law, notwithstanding the defendant's failure to appear at trial. Bursack, 65 F.3d at 54. Based upon its review of Tennessee law, the court of appeals concluded that "[e]ven a default judgment satisfies Tennessee's `actually litigated' requirement." Id. Because the prior judgment would have preclusive effect in state court, principles of full faith and credit required that the judgment also have preclusive effect in the subsequent bankruptcy litigation. Id.
The Bursack court observed that "[o]ur inquiry is somewhat complicated by the discussion in Spilman v. Harley of collateral estoppel in the context of a bankruptcy proceeding." Id. After quoting from the Spilman opinion, the Bursack court acknowledged "[t]hus, Spilman, at least arguably, created a bright-line rule that default judgments can never have preclusive effect in bankruptcy proceedings regardless of their treatment under relevant state law." Id.
The Bursack court further noted that the lower courts were split on their interpretation *901 of Spilman and questioned the continuing vitality of Spilman in light of more recent Supreme Court decisions involving full faith and credit. Nevertheless, the court stopped short of declaring that Spilman was no longer valid. Instead, the Bursack court chose to distinguish the Spilman case on the grounds that the Tennessee fraud judgment against the defendant was not a "true default" because the defendant had filed an answer and had participated in the civil litigation right up to the eve of trial:
[U]nder the circumstances of this case, we are not required to determine the extent to which the Spilman rule may have been overruled. That is, we need not address the question of whether a true default judgment, e.g., where the defendant does not file an answer, has collateral estoppel effect in a later bankruptcy proceeding. The state-court judgment at issue here is not a default judgment as contemplated by the Spilman court. Indeed, the attributes listed by Spilman as conditions for a judgment having preclusive effect are present in this case.
Here, Rally Hill's state-court complaint raised the issues of fraud and use of false financial statements. The issues were actually litigated to the extent that Bursack retained an attorney, filed an answer, asserted cross-claims, and participated in discovery, which included his submitting to two depositions.
Bursack, 65 F.3d at 54. Finally, the Bursack court expressly declined to decide the broad issue of whether or not a federal policy required an exception to the application of full faith and credit to state court default judgments where the fraud issue was "actually litigated" in the state court proceeding. Id. at 54-55.
Spilman and Bursack are not easily reconciled. In Spilman, the Sixth Circuit explicitly stated that a default judgment would not have a collateral effect on a subsequent action in bankruptcy court. Spilman, 656 F.2d at 228. Although this statement in Spilman can be characterized as nonbinding "dicta," it is unequivocal and directly on point. In Bursack, the Sixth Circuit questioned this portion of its prior ruling in Spilman, but managed to finesse the issue by finding that the prior state court judgment was not a "true default" because the defendant had meaningfully participated in the prior litigation and was bound by the outcome. Bursack, 65 F.3d at 54. Bursack left open the question of whether a true default judgment would have preclusive effect in a subsequent bankruptcy proceeding.
Neither Spilman nor Bursack involved a "true default" in which the debtor failed to file an answer or defend the prior state court action. In each case, the defendant had participated to a certain degree in the defense of the state court litigation prior to entry of a judgment. In contrast, this court is squarely confronted with the issue of whether a true default judgment in a Michigan civil case has a preclusive effect in a subsequent nondischargeability action in a federal bankruptcy case.
2. Possible Preclusive Effect of Default Judgments Under Michigan Law
a. Analytical Framework to Ascertain State Law
The Sixth Circuit Court of Appeals has recently set forth the analytical approach for federal courts to follow when attempting to decide questions of state law:
[A] federal court must apply the law of the state's highest court. If, however, the state's highest court has not decided the applicable law, then the federal court must ascertain the state law from "all relevant data." Relevant data include the state's appellate court decisions:
[W]e are mindful that an intermediate appellate court's judgment that announces a rule of law is "a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise."
*902 Finally, relevant data also include the state's supreme court dicta, restatements of law, law review commentaries, and the majority rule among other states.
Garden City Osteopathic Hospital v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (citations omitted). In accordance with Garden City, this court will first examine opinions from the Michigan Supreme Court regarding the collateral estoppel effect of a default judgment.[10] To the extent that the Michigan Supreme Court has not rendered a definitive opinion on this issue, this court will also consider other "relevant data" including opinions of the Michigan Court of Appeals, the Michigan Court Rules, legal commentaries, and federal court opinions interpreting Michigan law.
b. Michigan Cases Interpreting Michigan Law
Similarly to the United States Supreme Court, the Michigan Supreme Court differentiates between the doctrines of res judicata and collateral estoppel. See supra Part III.A. In general, the Michigan Supreme Court uses the term "res judicata" to refer to "claim preclusion" as opposed to "collateral estoppel" which refers to "issue preclusion." People v. Gates, 434 Mich. 146, 154, n. 7, 452 N.W.2d 627 (1990) (citing Jones v. Chambers, 353 Mich. 674, 91 N.W.2d 889 (1958)). In People v. Gates, the Michigan Supreme Court succinctly defined the principle of collateral estoppel as follows:
Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties where the prior proceeding culminated in a valid, final judgment and the issue was (1) actually litigated and (2) necessarily determined.
People v. Gates, 434 Mich. at 154, 452 N.W.2d 627 (citing Jacobson v. Miller, 41 Mich. 90, 93, 1 N.W. 1013 (1879); Howell v. Vito's Trucking & Excavating Co., 386 Mich. 37, 42, 191 N.W.2d 313 (1971); Restatement Judgments, § 68, p. 293; 1 Restatement Judgments, 2d, p. 250). With respect to the first requirement, the Court stated:
In analyzing whether an issue was "actually litigated" in the prior proceeding, the Court must look at more than what has been plead and argued. We must also consider whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue.
Gates, 434 Mich. at 156-57, 452 N.W.2d 627 (citing Blonder-Tongue Laboratories, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971)). In regards to the second requirement, the Gates Court stated, "An issue is necessarily determined only if it is `essential' to the judgment." Gates, 434 Mich. at 158, 452 N.W.2d 627 (citing 1 Restatement Judgments, 2d, § 27, p. 250, comment h, p. 258). Applying these general rules, the majority in Gates concluded that a jury verdict of "no jurisdiction" in a child-protective probate proceeding did not bar a subsequent prosecution for criminal sexual conduct, even though proceedings arose from the same factual allegations.
Because the Gates case did not involve the collateral estoppel effect of a prior default judgment, it is not directly analogous to the issue before this court. However, in one of the cases cited by Gates majority, the Michigan Supreme Court refused to apply the doctrine of collateral estoppel in a case that is somewhat analogous to a default judgment. See Jacobson v. Miller, 41 Mich. 90, 1 N.W. 1013 (1879).
Jacobson v. Miller involved a landlord-tenant dispute. The landlord sued two tenants for back rent that had allegedly accrued during the first eighteen months of a three-year lease. Apparently, the tenants disputed *903 the existence of the lease. However, they failed to deny the existence of the lease under oath in their answer as was required under the then applicable court rule.[11] Thus, the tenants were not allowed to contest the validity of the lease at trial. A judgment was entered in favor of the landlord. Thereafter, the landlord filed a second suit seeking to recover the balance of the rent that had accrued during the remainder of the three year lease. Only one of the tenants responded, but this time he attached an affidavit to his answer in which he denied that he had ever signed, executed or delivered the lease. Therefore, under the applicable rule, the landlord was obligated to prove the execution of the lease. However, the landlord argued that the execution and validity of the lease was established by the prior judgment. The trial court agreed and instructed the jury accordingly. The jury ruled in favor of the landlord. The tenant then appealed to the Michigan Supreme Court.[12]
Justice Cooley framed the issue on appeal as follows: "The question presented by this record is whether the circuit judge was right in holding that, by the former suit, the execution of the lease was conclusively established for the purposes of any subsequent suit for the recovery of rent claimed to have accrued under it." Jacobson v. Miller, 41 Mich. at 93, 1 N.W. 1013. Justice Cooley then described the general principles that governed the case:
There are two matters in respect to which an adjudication once made may be conclusive: first, the subject matter involved in the litigation; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject matter in litigation.
Jacobson v. Miller, 41 Mich. at 93, 1 N.W. 1013. Justice Cooley seems to suggest that these principles are equally applicable to default judgments:
Nor, as regards the subject matter of the suit, is it of the least importance, when the question comes up again collaterally, whether the suit was contested or was suffered to go by default; whether, if it was contested, all the questions were raised by the pleadings, or upon the trial, that might have been raised; or whether the court was right or wrong in its conclusions upon the fact or upon the law. It is sufficient that the case proceeded to judgment according to the forms of law, and that the court rendered a judgment that by its terms or legal effect covered the controversy.
Jacobson v. Miller, 41 Mich. at 94, 1 N.W. 1013 (citing Hazen v. Reed, 30 Mich. 331 (1874)). Without using the terms "res judicata" or "collateral estoppel," Justice Cooley nevertheless recognized a distinction between the two concepts:
Of course there could have been no rents if there was no lease, and therefore it is said that the right to rents in the first suit necessarily involved the existence of the lease and its execution by the parties sued. Assuming this to be correct, it may still be necessary to distinguish between the subject matter of the former suit, namely, the rents claimed, and the point involved in the right to them, namely the execution and delivery of the lease. The plaintiff insists that the prior adjudication is conclusive as respects both; the defendant Jacobson insists that it is conclusive only as respects the sum for which judgment was recovered.
*904 Jacobson v. Miller, 41 Mich. at 95, 1 N.W. 1013. In other words, Justice Cooley makes a distinction: the prior default judgment would have a res judicata effect that would bar further litigation regarding the amount and validity of the prior judgment; however, the judgment would not necessarily have a collateral estoppel effect with respect to the underlying factual issues concerning the execution and delivery of the lease. Justice Cooley further opined that if the validity of the lease had been actually litigated in the prior suit, the outcome of the issue would have been binding on the parties in the subsequent litigation:
It is not denied by the defendant that if the execution and delivery of the lease had been disputed in the first suit, the determination of the issue would have been conclusive upon the parties in any subsequent litigation involving the right to rents under the same lease.
* * * * * *
But the execution of the lease was not denied in the former suit. No issue was made upon it, and the defendant, by not denying it, suffered a default in respect to it which left it wholly outside the issue made and actually passed upon. Consequently it was not and could not have been considered by the court as a point in which that suit was open to controversy.
Jacobson v. Miller, 41 Mich. at 95-96, 1 N.W. 1013 (emphasis added). Thus, because the defendants had not placed the validity of the lease in issue in the prior suit, there was no collateral estoppel effect in the later suit. Furthermore, Justice Cooley concluded that the failure to properly assert the defense in the prior action did not preclude the defendant from raising it in the subsequent suit. In support of this conclusion, Justice Cooley quoted a lengthy excerpt from a United States Supreme Court opinion written by another eminent nineteenth-century jurist, Stephen Field. In the seminal case of Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877), Justice Field wrote:
Various considerations other than the actual merits, may govern a party in bringing forward grounds of recovery or defense in one action, which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own station in time. A party acting upon considerations like these ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim.
Cromwell v. County of Sac, 94 U.S. at 356 (quoted in Jacobson v. Miller, 41 Mich. at 96, 1 N.W. 1013 (emphasis added by this court)). The Michigan Supreme Court reversed the lower court's judgment in favor of the landlord and ordered that a new trial be held in which the defendant would be allowed to contest the validity of the lease.
Technically speaking, Jacobson v. Miller did not involve a default judgment; it is, nevertheless, roughly analogous to the proceeding before this court. In both cases, the plaintiff is attempting to use a prior adverse judgment to preclude the defendant from raising defenses in a pending case arising from the same operative facts. In Jacobson v. Miller, the defendant was precluded from asserting one of his defenses in the first suit because he failed to supply an affidavit disputing the validity or authenticity of the lease. In this proceeding, Kalita failed to assert her defenses in the prior suit because she failed to answer the complaint. In both cases, the defendants did not "actually litigate" their defenses in the prior state court action. Thus, Justice Cooley's opinion in Jacobson v. Miller, strongly suggests that the Michigan Supreme Court would not give collateral estoppel effect to a true default judgment.
Jacobson v. Miller is over one hundred years old and it is possible that the Michigan *905 Supreme Court could have changed its views in the interim. However, Jacobson v. Miller has never been overruled and as recently as 1958, the Michigan Supreme Court described it as "Michigan's leading case on the doctrine of res adjudicata [sic]." Jones v. Chambers, 353 Mich. 674, 680, 91 N.W.2d 889 (1958). As recently as 1990, the Michigan Supreme Court cited to Jacobson v. Miller in support of its definition of collateral estoppel. See supra, Gates, 434 Mich. at 154, 452 N.W.2d 627.
Moreover, the Michigan Supreme Court has continued to adhere to the substantive ruling in Jacobson v. Miller, by consistently enforcing the "actually litigated" requirement in cases applying the doctrine of collateral estoppel. For instance, in describing the scope of collateral estoppel, the Michigan Supreme Court has stated:
The Judgment is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.
Howell v. Vito's Trucking and Excavating Company, 386 Mich. 37, 42, 191 N.W.2d 313 (1971) (quoting Restatement of the Law of Judgments, § 68 at 293, 294). Likewise, in Senior Accountants, Analysts and Appraisers Association v. City of Detroit, 399 Mich. 449, 249 N.W.2d 121 (1976), the Michigan Supreme Court once again quoted an excerpt from the Restatement of Judgments:
Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between parties in a subsequent action.
Senior Accountants, 399 Mich. at 458, 249 N.W.2d 121 (quoting Restatement of the Law of Judgments, § 68 at 293). In the Lichon case discussed supra, the Michigan Supreme Court relied on the current version of the Restatement for the same proposition:
Under 1 Restatement Judgments, 2d, § 27, p. 250, collateral estoppel applies "[w]hen an issue of fact or law is actually litigated and determined by a valid final judgment. . . ." (Emphasis added.) Comment e to this section clarifies this rule: "A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action."
Lichon, 435 Mich. at 428, 459 N.W.2d 288 (emphasis supplied by Michigan Supreme Court). The same comment that is quoted by the Michigan Supreme Court in Lichon further provides that, "In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of this Section [issue preclusion] does not apply with respect to any issue in a subsequent action." 1 Restatement Judgments, 2d, § 27, comment e, at 257. Thus, although the Michigan Supreme Court has not directly held that a true default judgment will not give rise to collateral estoppel, it seems likely that it would adopt such a rule if it were presented with the issue.[13]
Pursuant to the Sixth Circuit's analysis in the Garden City case, this court should be primarily concerned with the Michigan Supreme Court's interpretation of Michigan law. However, because the Michigan Supreme Court has not rendered an explicit holding on this issue, it is appropriate for this court to consider other sources of law such as decisions of the Michigan Court of Appeals. See generally, Garden City, 55 F.3d at *906 1130.[14]
The Michigan case which most strongly implies that collateral estoppel applies to true default judgments is Braxton v. Litchalk, 55 Mich.App. 708, 223 N.W.2d 316 (1974). In Braxton, the plaintiff, who was the lessor of an automobile, sued defendant Braxton for negligent operation of his automobile and resultant damages to the plaintiff's leased automobile. Defendant Braxton failed to answer the complaint. The trial court entered a default judgment against the defendant in the amount of $205.76. Subsequently, the defendant moved to set aside the default. At first, the trial court set aside the default, but upon further consideration, reinstated the default judgment because good cause had not been shown. Id. at 712, n. 1, 223 N.W.2d 316. Approximately one month later, defendant Braxton, and others, filed a lawsuit against the plaintiff lessor in the first suit, and others. Upon the lessor's motion for accelerated judgment, the second trial court held that Braxton was barred by collateral estoppel from suing the lessor who had obtained the default judgment in the first action.
Upon appeal, the Michigan Court of Appeals affirmed as to the lessor. The court of appeals stated:
In view of the extensive attention given this matter by the trial court, the final entry of a default judgment and failure of defendant to appeal therefrom we must accept as true the matters pleaded in the Bendix complaint and must examine the merits of the case before us. Our conclusion in this regard should not be construed as going so far as to hold that every default judgment, no matter under what circumstances it is taken, may result in collateral estoppel, but only that in the instant case the issues were sufficiently litigated to make the doctrine of collateral estoppel apply.
Braxton v. Litchalk, 55 Mich.App. at 717, 223 N.W.2d 316. Thus, in Braxton, the Michigan Court of Appeals expressly stated that not all default judgments would give rise to collateral estoppel, but only those in which the factual issue had been "sufficiently litigated" in the underlying case. Although the Michigan Court of Appeals gave collateral estoppel effect to a default judgment in Braxton, because defendant Braxton moved to set aside the default, the court apparently concluded that sufficient participation occurred to meet the "actually litigated" requirement. Therefore, even though no answer had been filed, *907 the court of appeals seems to assume a "true default" judgment was not involved because of "the extensive attention given to this matter" by the first trial court.[15]
c. Michigan Court Rules Pertaining to Default Judgments
The current version of the Michigan Court Rules were formally adopted by the Michigan Supreme Court in 1985. Those rules provide another source of law from which this court may seek analytical guidance. The Michigan Court Rules do not specifically address the preclusive effects of default judgments under Michigan law. Nevertheless, the procedures for the entry of default judgments are somewhat helpful regarding the issue of what constitutes a "true default" under Michigan law.
The entry of default judgments is governed by Michigan Court Rule 2.603 which provides that judgments may be entered by either the court or the court clerk. Subsection (A)(1) of the Rule suggests that in the case of a "true default", the clerk "must" enter judgment against the defaulting party:
(1) If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party.
MCR 2.603(A)(1) (emphasis added). Subsection (B)(2) provides:
(2) Default Judgment Entered by Clerk. On request of the plaintiff supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant, if
(a) the plaintiff's claim against a defendant is for a sum certain, or for a sum that can by computation be made certain,
(b) the default was entered because the defendant failed to appear, and
(c) the defaulted defendant is not an infant or incompetent person.
The clerk may not enter or record a judgment based on a note or other written evidence of indebtedness until the note or writing is filed with the clerk for cancellation, except by special order of the court.
MCR 2.603(B)(2) (emphasis added). This procedure whereby the clerk enters the default judgment, seems to be applicable in those cases involving a "true default," where the defendant fails to respond to the complaint. In all other cases, default judgments are entered by the court and not the clerk. Michigan Court Rule 2.603(B)(3) provides in part:
(3) Default Judgment Entered by Court. In all other cases the party entitled to a judgment by default must apply to the court for the judgment.
. . . . .
(b) If, in order for the court to enter judgment or carry it into effect, it is necessary to
(i) take an account,
(ii) determine the amount of damages,
(iii) establish the truth of an allegation by evidence, or
(iv) investigate any other matter,
the court may conduct hearings or order references it deems necessary and proper, and shall accord a right of trial by jury to the parties to the extent required by the constitution.
MCR 2.603(B)(3)(b) (emphasis added). Under the foregoing rule, a Michigan trial court "may" conduct an evidentiary hearing prior to entering a default judgment, but it is not required to do so.
In cases where the default judgment is entered as a ministerial function by the court clerk, it should not give rise to collateral *908 estoppel in a subsequent proceeding because it does not satisfy the "actually litigated" requirement. In contrast, in cases where the record clearly indicates that an evidentiary hearing or trial was held, after an answer was filed, then the "default" judgment should be given collateral estoppel effect even if the defendant did not attend the hearing. Thus, this dichotomy in the Michigan Court Rules supports the view that "true defaults" should not be given collateral estoppel effect under Michigan law.
In this adversary proceeding, it appears that the default judgment dated November 22, 1985 was entered by the presiding judge and not the court clerk. The judgment includes the standard preamble, "This matter having come before the Court and the Court being advised in the premises; . . ." However, Vogel has not provided a transcript of the hearing at which the default judgment was granted, and the judgment itself is silent with respect to the basis for the judgment. The failure to produce the entire state court record could be grounds for denying the application of collateral estoppel under Spilman; especially where, as here, the judgment itself is ambiguous.
As noted above, however, the undisputed facts in this case establish that the sole reason for the 1985 default judgment was Kalita's failure to answer the complaint. Vogel has not alleged that the state court judge made any specific findings regarding Kalita's conduct. Indeed, because there was no answer by Kalita the state court was not required to make any explicit findings of fact. Therefore, under these circumstances, a transcript of the state court default hearing would probably not provide any additional guidance to this court regarding the nondischargeability issue. Although the 1985 civil judgment was entered by the state court judge, it probably could have been issued by the clerk since it appears that Kalita "failed to plead or otherwise defend" against Vogel's complaint. See Mich.Comp.Laws Ann. § 2.603(A)(1).[16] Therefore, the judgment against Kalita was a "true default" even though it was entered by the state court judge, and not the court clerk.
d. Federal Cases Interpreting Michigan Law
In addition to the Michigan appellate cases, and the Michigan court rules, this court may also examine the opinions of other federal courts that have been called upon to determine issues of Michigan law. In particular, several bankruptcy courts in the Eastern District of Michigan have addressed the issue that is currently before this court, i.e., the preclusive effect of a Michigan civil default judgment on a subsequent nondischargeability proceeding. These cases are helpful both as to their interpretation of Michigan law and their general approach to the issue of the collateral estoppel effect of default judgments. All of these cases were decided after the Sixth Circuit's decision published its decision in Spilman in 1981, but before that court issued its opinion in Bursack in 1995.
In Bend v. Eadie (In re Eadie), 51 B.R. 890 (Bankr.E.D.Mich.1985), the bankruptcy court held that, under Michigan law, a default judgment for fraud would be given preclusive effect. Therefore, the debtor was estopped from subsequently denying that the debt was nondischargeable in bankruptcy. In Eadie, it was alleged the defendant had fraudulently obtained money from the plaintiff that was supposed to be donated to charity. The Michigan state court entered a default judgment as a sanction against the defendant for failing to cooperate in discovery. Id. at 891. Thereafter, the defendant filed a chapter 7 bankruptcy case. The plaintiff filed an adversary proceeding asserting the judgment debt was nondischargeable under section 523(a)(2). The plaintiff moved for summary judgment arguing *909 that defendant was estopped from relitigating the fraud issue determined by the prior state court judgment.
The bankruptcy court reviewed the Sixth Circuit's opinion in Spilman and acknowledged the apparent per se rule that default judgments should not be given collateral estoppel effect in subsequent bankruptcy cases. Nevertheless, the bankruptcy court was persuaded by a subsequent opinion from another bankruptcy court which concluded that Spilman was no longer valid in light of recent pronouncements from the Supreme Court dealing with full faith and credit. Eadie, 51 B.R. at 892-93 (citing In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985)). Therefore, the Eadie court proceeded to analyze the preclusive effect of default judgments under Michigan law:
Under Michigan law, the doctrine of collateral estoppel applies only where the same ultimate issues underlying a first action are involved in a second action, where the parties have had a full opportunity to litigate the ultimate issue in the former action, and where there is mutuality of estoppel such that both litigants in the second suit are bound by the judgment rendered in the first suit. Further, collateral estoppel applies to default judgments; however, the default judgment is conclusive only to those matters essential to support the judgment.
Eadie, 51 B.R. at 894 (citations omitted) (emphasis added). The Eadie court also quoted from a Michigan Court of Appeals decision recognizing the preclusive effect of some default judgments under Michigan law. Eadie, 51 B.R. at 894 (quoting Braxton v. Litchalk, 55 Mich.App. 708, 717, 223 N.W.2d 316 (1974)). Applying these principles of Michigan law, the Eadie court concluded that the prior state court fraud judgment would be given preclusive effect by Michigan courts even though it was, in effect, a default judgment.
It should be stressed that Eadie did not involve a "true default" because there was participation by the defendant in the state court litigation. This is evident because the state court entered a default judgment as a discovery sanction after the defendant appeared and presumably filed an answer to the complaint. Thus, Eadie is distinguishable from the proceeding before this court which involves a true default. More importantly, the Michigan Court of Appeals opinion cited in Eadie is careful to limit its holding and expressly states that not all default judgments will be given preclusive effect, only those in which the issue was "sufficiently litigated" so that collateral estoppel would apply.
In a subsequent opinion, the Bankruptcy Court for the Eastern District of Michigan applied a similar analysis, but reached a different result. Day v. Manuel (In re Manuel), 76 B.R. 105 (Bankr.E.D.Mich.1987). In Manuel, the plaintiff had entered into a settlement and consent judgment in which the plaintiff agreed to dismiss her fraud claims with prejudice. Thereafter, the defendant filed for bankruptcy and the plaintiff filed an adversary proceeding seeking to have the debt declared nondischargeable under section 523(a)(2). Defendant argued that the nondischargeability claim was barred by res judicata because the fraud issue had been dismissed with prejudice under the consent agreement. Applying Michigan law, the bankruptcy court determined that a consent judgment did not have collateral estoppel effect (issue preclusion), but could be used to invoke res judicata (claim preclusion). Manuel, 76 B.R. at 107.
Nevertheless, the bankruptcy court ultimately concluded that the consent judgment would not be given preclusive effect in the bankruptcy proceeding because it fell within an implied exception to the application of full faith and credit. Manuel, 76 B.R. at 108. In support of this conclusion, the Manuel court quoted at length from Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979), a case in which it was held that res judicata does not bar litigation of the dischargeability issue in bankruptcy where the parties had previously entered into a stipulated state court judgment. Manuel *910 concluded that the prior state court consent judgment dismissing the fraud claim with prejudice did not preclude relitigation of the fraud issue in the nondischargeability action. Manuel, 76 B.R. at 108.
Because Manuel involved a consent judgment as opposed to a default judgment, it is distinguishable from the issue before this court. By definition, a consent judgment requires some participation in the litigation. Therefore, it is not equivalent to a "true default." Nevertheless, even though both parties were actively involved in the state court litigation, the bankruptcy court in Manuel refused to give preclusive effect to the consent judgment in the subsequent nondischargeability action.
In yet another bankruptcy case from the Eastern District of Michigan, the court held that a defendant-debtor was not precluded from contesting a nondischargeability action under sections 523(a)(4) and (6), notwithstanding the fact that the defendant-debtor had previously accepted a mediation award which had resulted in a judgment against the defendant. Industrial Ins. Services, Inc. v. Zick (In re Zick), 100 B.R. 867 (Bankr. E.D.Mich.1989). In Zick, the bankruptcy court determined that a judgment resulting from a mediation award was comparable to a consent judgment under Michigan law and, thus, would not have a preclusive effect on the subsequent nondischargeability proceeding in the bankruptcy court, other than to establish the amount of the debt. In so holding, the bankruptcy court noted that, "Entry of a judgment based upon acceptance of a mediation award is an administrative or ministerial act involving no exercise of judgment or discretion." Zick, 100 B.R. at 869 (citing Muntean v. City of Detroit, 143 Mich. App. 500, 505, 372 N.W.2d 348 (1985)). Thus, the bankruptcy court concluded that the entry of judgment following mediation was tantamount to a consent judgment which does not have collateral estoppel effect under Michigan law. Zick, 100 B.R. at 869 (citing American Mut. Liab. Ins. Co. v. Michigan Mut. Liab. Co., 64 Mich.App. 315, 327, 235 N.W.2d 769 (1975), lv. denied, 395 Mich. 830 (1976)). Zick does not involve a true default judgment and, therefore, is distinguishable from this adversary proceeding.
The Bankruptcy Court for the Eastern District of Michigan has applied the doctrine of collateral estoppel in a nondischargeability action where the debt arose from a state court judgment against the debtor-defendant for wrongful conversion of corporate funds. In re Khullar, 139 B.R. 428 (Bankr. E.D.Mich.1992). In Khullar, the debtor-defendant was sued in a state court civil action for wrongful conversion of medical insurance payments from a company in which the defendant was a principal. The defendant failed to testify in his own defense at trial and a judgment was entered against him. In the subsequent nondischargeability action, the bankruptcy court granted summary judgment against the defendant-debtor and held that he was collaterally estopped based on the prior state court judgment.
In contrast to the proceeding currently pending before this court, Khullar did not involve a true default judgment. Rather, the facts presented in that opinion indicate that the defendant had presumably filed an answer in the state court action, but had either failed to appear at trial or had simply failed to testify. Khullar, 139 B.R. at 429. It therefore appears that the relevant issues were necessarily litigated in the state court trial. Thus, the procedural background in Khullar is strikingly similar to the facts involved in Bursack and, in both cases, the courts concluded that the defendant's failure to attend trial did not preclude the application of collateral estoppel.
In Montgomery v. Kurtz (In re Kurtz), 170 B.R. 596 (E.D.Mich.1994), the bankruptcy court held that the debtor was not estopped from relitigating the issue of fraud in a nondischargeability proceeding, notwithstanding a prior default judgment against him in Michigan state court. In Kurtz, the plaintiff brought a civil suit alleging fraud in connection with the sale of the defendant's house. It is unclear whether the defendant filed an answer in the state court action. Apparently, *911 the Michigan trial court entered a default judgment in favor of the plaintiff because the defendant failed to appear at a hearing; however, there was no record of the hearing at which the default judgment was entered. The defendant filed a chapter 7 case and the plaintiff brought an adversary proceeding alleging that the judgment debt was nondischargeable under Section 523(a)(2)(A). The plaintiff sought summary judgment arguing that the defendant was estopped from relitigating the fraud issue.
The bankruptcy court framed the issue as follows, "The primary issue in this case concerns whether a state court default judgment qualifies as "actually litigated" for purposes of collateral estoppel." Kurtz, 170 B.R. at 597. As an initial matter, the bankruptcy court concluded that it was not required to grant full faith and credit to state court judgments because of a judicially created exception which applies to dischargeability actions in bankruptcy. Id. at 599. The court then considered Spilman and Eadie which suggested that Spilman was no longer good law. The Kurtz court rejected the analysis in Eadie and concluded that Spilman remained binding precedent within the circuit. See Kurtz, 170 B.R. at 600 ("On balance, proper respect for precedent, and in particular, the literal words of the Sixth Circuit requires this Court to therefore conclude that default judgments per se cannot be the basis for collateral estoppel."). Nevertheless, the Kurtz court concluded that "Spilman should not be taken literally . . . [and] there may be some default judgments that qualify as a basis for application of collateral estoppel principles." Kurtz, 170 B.R. at 601.
Relying in part on Spilman, the Kurtz court established its own four part test to be applied to determine when a default judgment could be used for purposes of collateral estoppel.[17] Applying this test to the facts before it, the Kurtz court noted that under the applicable Michigan Court Rule, the trial court may conduct an evidentiary hearing in connection with the entry of a default judgment in order to determine damages or establish the truth of an allegation:
Thus, for a Michigan state court default judgment to have collateral estoppel effect, the court must have, among other things, evidence establishing the truth of the allegations in the complaint being used as the basis for the non-dischargeability action in the Bankruptcy Court when granting the default judgment.
Kurtz, 170 B.R. at 600 (citing MCR 2.603(B)). The Kurtz court concluded that the state court default judgment should not be given preclusive effect because neither party had obtained a record of the hearing at which the default judgment was entered. In the absence of a transcript, the plaintiff had attempted to submit an affidavit from the state court judge; however, the bankruptcy court determined that the affidavit was insufficient to establish compliance with MCR 2.603(B)(3) or to meet the standard enunciated by the bankruptcy court. Kurtz, 170 B.R. at 602. Accordingly, the bankruptcy court denied the plaintiff's motion for summary judgment.
In an opinion that was issued shortly after Kurtz, the Bankruptcy Court for the Eastern District of Michigan ruled that a default judgment obtained by the victim of a convicted child molester collaterally estopped a defendant-debtor from denying that the debt was nondischargeable. Frantz v. Schuster (In the Matter of Schuster), 171 B.R. 807 *912 (Bankr.E.D.Mich.1994). The defendant in Schuster was a former school superintendent who was convicted of criminal sexual assault under Michigan law in connection with his abuse of a fourteen year old boy. The bankruptcy court opinion does not indicate what type of plea the defendant entered in response to the criminal charges filed against him. It is unclear whether a trial was held in the criminal case. Schuster at 809.
Following the defendant's criminal conviction, the victim and his father filed a civil suit seeking damages for fraud, assault, and intentional infliction of emotional distress. Id. at 809 and 810, n. 2. The defendant was initially represented by counsel and, presumably, filed an answer to the complaint. However, the defendant's attorney subsequently withdrew from the case, and a default judgment was entered after the defendant failed to appear at both a scheduled settlement conference and at trial. Id. at 813. Prior to entering a default judgment the state court held a bench trial in which the court heard testimony and reviewed affidavits concerning the defendant's conduct and found the defendant's actions "to be willful and wanton in his abuse of young Frantz." Id. at 812.
The defendant filed for bankruptcy protection, and the plaintiff brought a motion to lift the automatic stay to pursue collection of the default judgment. Plaintiff also filed an adversary proceeding to establish the debt as nondischargeable under section 523(a)(6). The bankruptcy court framed the issue as follows:
This case presents the issue of whether a plaintiff-creditor, who obtains a state court default judgment, may preclude the debtor from contesting the default judgment in a subsequent bankruptcy proceeding to the extent to which the liability created by the default is nondischargeable under the Bankruptcy Code.
Schuster, 171 B.R. at 808-809. In ruling that the debt was nondischargeable, the bankruptcy court concluded that the defendant's conduct was both willful and malicious within the meaning of section 523(a)(6). Id. at 812. With respect to the issue of collateral estoppel, the court held that "pursuant to Michigan law the default judgment should be granted preclusive effect." Id. at 813. The bankruptcy court rejected the defendant's argument that he had not had an opportunity to litigate the issue fully in the state court proceeding. The court noted that the defendant had received notice of both the settlement conference and the trial, but had failed to appear and had failed to appeal the default judgment. Id. at 813. A close reading of the opinion indicates that the debtor participated in the state court litigation at least until his counsel withdrew from the case.
The plaintiff in Schuster invoked the doctrine of collateral estoppel based on the defendant's prior criminal conviction under Michigan law and a civil default judgment for injuries caused by the crime. In contrast, Kalita entered a plea of nolo contendere, thereby preventing the collateral use of the conviction in subsequent proceedings. There is nothing in the bankruptcy court's opinion in Schuster that would indicate that the defendant-debtor's criminal conviction resulted from a nolo contendere plea.
Moreover, it appears that the defendant had filed an answer in the state court civil action in Schuster, and that an evidentiary hearing was held resulting in a specific finding of "willful and wanton" misconduct on the part of the defendant. It appears obvious based on the uncontroverted evidence in the state court record that the plaintiff was entitled to judgment on the merits of his claims and the only reason the judgment was characterized as a "default judgment" was that the defendant had failed to appear at trial. In this respect, Schuster is very similar to the procedural facts in Bursack and Khullar.
At first glance, the foregoing cases from the Eastern District of Michigan seem to reach contradictory results regarding the collateral estoppel effect of a default judgment under Michigan law. Compare Schuster (default judgment creates collateral estoppel) and Eadie (same) and Khullar (same) with Kurtz (default judgment does not give rise to *913 collateral estoppel) and Manuel (consent judgment does not give rise to collateral estoppel) and Zick (judgment based on mediation award does not give rise to collateral estoppel). However, upon careful reading the cases can be reconciled by focusing on the "actually litigated" requirement for the application of collateral estoppel under Michigan law.
In those cases in which the bankruptcy court held that the defendant-debtor was collaterally estopped by the prior Michigan judgment, there was at least some participation by the defendant in the state court litigation. Although the decisions are somewhat unclear, it appears in Schuster, Eadie and Khullar that each defendant had answered the allegations of the complaint prior to entry of the default judgment. Thus, the issues were "actually litigated" for purposes of establishing collateral estoppel. In contrast, the plaintiff in Kurtz could not meet the actually litigated requirement, because she failed to produce an adequate state court record to show that an answer had been filed or evidentiary hearing was held. Likewise, the state court judgments at issue Manuel and Zick were not based on evidentiary findings. Therefore, the bankruptcy courts refused to give these judgments preclusive effect, even though there had been some degree of participation by the defendants in the state court litigation. None of these cases involved a "true default" in which the defendant had failed to even file an answer to the state court complaint.
3. Under Michigan Law, What Level Of Participation By A Defendant Is Necessary To Meet The "Actually Litigated" Requirement For Collateral Estoppel?
Upon consideration of the above Michigan Supreme Court decisions, the Michigan Court of Appeals' decisions, the current Michigan Court Rules and federal decisions, by the Sixth Circuit Court of Appeals and the Michigan bankruptcy courts, interpreting Michigan law on collateral estoppel, i.e., the "relevant data", this court has gleaned how the Michigan Supreme Court would decide the legal issue presented. The highest court of Michigan would very probably decide that a default judgment, entered after the defendant has filed an answer which contests material facts, is entitled to collateral estoppel effect. To the contrary, when no answer has been filed, i.e., in the instance of a "true default," collateral estoppel does not apply.
Under common law, a "joinder in issue" occurs when one of the parties, commonly the defendant, "joins in or accepts an issue in fact tendered by the opposite party", normally the plaintiff. BLACK'S LAW DICTIONARY 836 (6th ed. 1990).[18] Upon such joinder of issue, the disputed facts are identified and must necessarily be decided by the court, whether upon judgment at trial or in connection with a default judgment.
The current Michigan Court Rules also mandate such a procedure. "Pleading" includes, among other things, a complaint and an answer to the complaint. MCR 2.110. Allegations in a complaint "must be clear, concise and direct." MCR 2.111(A)(1). A complaint must contain, among other things, "a statement of facts, without repetition, on which the pleader relies in stating the cause of action." MCR 2.111(B)(1). As to each allegation in the complaint, the answer must "state an explicit admission or denial." MCR 2.111(C)(1).[19] Therefore, any subsequent judgment must necessarily adjudicate the contested factual issues. It is for this reason, the Michigan Court Rules require the judge, rather than the court clerk, to render a default judgment after an answer has been *914 filed. MCR 2.603(B)(3). See supra, Part III.D.2.c.
Jacobson v. Miller, 41 Mich. 90, 1 N.W. 1013 (1879), written by Justice Cooley, is the key authority utilized in this court's analysis.[20] Because the opinion is older, unless read carefully, it is somewhat difficult to understand. Boiled down, it stands for the proposition that unless a proper answer is filed which identifies facts necessarily in issue, a subsequent judgment is not entitled to collateral estoppel effect because the factual issues were not contested and, hence, not actually litigated. This conclusion is based, in part, upon the following quote:
It is said by SANFORD, J., in Dickinson v. Hayes, 31 Conn., 417: "Verdicts and judgments are conclusive evidence of the facts which they profess to find, and which are necessary to uphold them, because those facts were properly in issue, or the subject of inquiry, and were upon such inquiry judicially determined. But in regard to facts about which the court could have made no inquiry, no inference can be drawn from its determination."
Jacobson v. Miller, 41 Mich. at 98, 1 N.W. 1013.
It appears that Jacobson v. Miller adopts the quoted analysis of Dickinson. This is shown by the statement: "Cases may be found which are inconsistent with these views, and equally, as we think, inconsistent with [the] principle [of collateral estoppel]." Jacobson v. Miller, 41 Mich. at 99, 1 N.W. 1013. The clear inference is that cases which disagree with Dickinson are inconsistent with the governing legal principle, and thus are wrongly decided. When a fact is not denied because the defendant has failed to filed a proper answer in a prior lawsuit, there can be no collateral estoppel effect. This conclusion is supported by the following discussion:
But the execution of the lease was not denied in the former suit. No issue was made upon it, and the defendant, by not denying it suffered a default in respect to it which left it wholly outside the issue made and actually passed upon. Consequently it was not and could not have been considered by the court as a point in which that suit was opened to controversy.
Jacobson v. Miller, 41 Mich. at 95-96, 1 N.W. 1013. When the defendant fails to file an answer, facts are not contested or at issue. Therefore, a subsequent "true default" judgment is not entitled to collateral estoppel effect.
To the contrary, when a fact is denied in the defendant's answer, it is at issue. When a judgment is entered, the contested fact is adjudicated. It does not matter if the judgment is entered after a trial or by default. This conclusion is also supported by the following discussion in Jacobson v. Miller:
Nor, as regards the subject matter of the suit, is it of the least importance, when the question comes up again collaterally, whether the suit was contested or was suffered to go by default; whether, if it was contested, all the questions were raised by the pleadings, or upon the trial, that might have been raised; or whether the court was right or wrong in its conclusions upon the fact or upon the law. It is sufficient that the case proceeded to judgment according to the forms of law, and that the court rendered a judgment that by its terms or legal effect covered the controversy.
Jacobson v. Miller, 41 Mich. at 94, 1 N.W. 1013 (emphasis added).[21]
There are no Michigan Supreme Court cases which have been found which have *915 implicitly overruled Jacobson v. Miller, or are inconsistent with the above analysis of the applicability of collateral estoppel in instances when a default judgment has been rendered. To the extent Michigan Court of Appeals may have ruled collateral estoppel may apply, even in absence of an answer being filed and facts not at issue, i.e., a "true default" situation, those cases are inconsistent with Jacobson v. Miller and are wrongly decided.[22] The decisions by the federal courts which have addressed the Michigan law of collateral estoppel do not undercut this court's analysis.[23] Moreover, this court's analysis is consistent with both the Michigan Court Rules and the Restatement of Judgments. See supra Parts III.D.2.b. and c.
Returning to this adversary proceeding, in the prior state court civil action, Kalita did not file an answer to Vogel's complaint. Therefore, the facts were never at issue. Because the operative facts were not contested when the state court entered a default judgment, no actual litigation of the facts was necessary and "actual litigation" did not take place. The "true default" judgment which was entered in the state court civil action is therefore not entitled to collateral estoppel effect.
E. Federal Policy Exception to Full Faith and Credit
Assuming this court has erred in discerning what the Michigan Supreme Court would decide, and that collateral estoppel may apply in instances where a defendant has not answered a complaint, this court would decline to give full faith and credit to Michigan law.
Recently, the United States District Court for the Eastern District of Michigan ruled that there is a judicially created exception to 28 U.S.C. § 1738 for dischargeability proceedings in bankruptcy. See Wood v. Dealers Financial Services, Inc., 199 B.R. 25 (E.D.Mich.1996). In Wood, the plaintiff creditor filed a complaint in Oakland County Circuit Court alleging claims against the defendant-debtor for conversion, misappropriation, fraud and conspiracy to defraud. The defendant-debtor failed to answer the complaint. A default judgment was entered against him. Approximately six years later, the defendant-debtor filed a motion in state court to set aside the judgment; however, the motion was denied.[24] Thereafter, the defendant-debtor filed a chapter 7 bankruptcy case. In response, the judgment creditor initiated an adversary proceeding seeking to except its debt from discharge. The bankruptcy court granted the creditor's motion for summary judgment and the defendant-debtor appealed.
The district court framed the issue as "whether a bankruptcy court may apply collateral estoppel principles to a default judgment *916 obtained pursuant to Michigan law." Wood, 199 B.R. at 26. After discussing full faith and credit, the court refined the issue further:
Thus, the first issue this court must address is whether an exception to [28 U.S.C.] § 1738 exists for the determination by a bankruptcy court of the dischargeability of a debt under [11 U.S.C.] § 523. In other words, must a bankruptcy court, in determining the dischargeability of a debt, use state law to decide whether to give preclusive effect to a state default judgment.
Wood, 199 B.R. at 27. The Wood court noted that several courts had held that there was no federal policy exception to the application of full faith and credit, even where the prior state court judgment was obtained through default. See, e.g., Nourbakhsh v. Gayden (In re Nourbakhsh), 162 B.R. 841 (9th Cir. BAP 1994), aff'd, 67 F.3d 798 (9th Cir.1995); In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985); In re Eadie, 51 B.R. 890 (Bankr.E.D.Mich. 1985). Nevertheless, the Wood court rejected these cases on the basis that they were inconsistent with the Supreme Court's ruling in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) and the Sixth Circuit's decision in Spilman v. Harley, 656 F.2d 224 (6th Cir.1981). The district court instead chose to follow those bankruptcy court decisions that have recognized a federal policy exception to the application of full faith and credit in nondischargeability actions. See, e.g., Bay Area Factors, a Division of Dimmitt & Owens Financial, Inc. v. Calvert (In re Calvert), 177 B.R. 583 (Bankr. E.D.Tenn.1995); In re Kurtz, 170 B.R. 596 (Bankr.E.D.Mich.1994); and Ferguson v. Hall (In re Hall), 95 B.R. 553 (Bankr. E.D.Tenn.1989).
Having determined that the bankruptcy court was not bound by state law regarding the preclusive effect of the prior state court default judgment, the district court then concluded that the prior judgment against the defendant-debtor was not binding because it did not satisfy the "actually litigated" test of Spilman v. Harley. The district court, however, was careful to limit the scope of its ruling:
This court need not decide whether all default judgments necessarily fail the "actually litigated" standard. In the present case, there is absolutely no evidence of any actual litigation in support of the underlying nondischargeability issues. The record before this court cannot support a finding that the § 523 nondischargeability issues raised by appellee DFS were actually litigated in the state circuit court. The only issues apparently addressed were whether service was proper, and whether the appellant had actual notice. As to these two issues, the matter is clearly settled service was proper and Wood had notice. However, there is no indication that any discussion of ruling was issued on the merits of the complaint, i.e., the allegations of fraud. Thus, DFS fails to satisfy the "actually litigated" requirement set forth in Spilman.
Wood, 199 B.R. at 29. Accordingly, the district court reversed the bankruptcy court's grant of summary judgment and remanded the case for further proceedings on the creditor's nondischargeability action.
Inexplicably, the Wood court fails to address the Sixth Circuit's recent opinion in Bursack. As noted above, the Bursack court upheld a grant of summary judgment in favor of a creditor. See supra, Part III.D.1. In so holding, the court determined that the debtor was barred by collateral estoppel from relitigating the fraud issue that was subject of a prior state court default judgment. At first blush, it would appear that Wood is inconsistent with Bursack. Upon closer examination, however, the cases can be reconciled. First, Bursack expressly refrained from deciding the issue of whether or not there was a federal policy exception to the normal operation of 28 U.S.C. § 1738 in the case of a true default judgment. Bursack, 65 F.3d at 54-55. Thus, because the issue was left open, the Wood court was free to decide that such an exception was appropriate.
Second, Bursack did not involve a "true default;" rather, the defendant "vigorously *917 litigated the case right up until the eve of trial" and the trial proceeded in the absence of the defendant. Therefore, the Bursack court concluded that defendant was bound by the prior state court default judgment, because "the fraud issue was raised, actually litigated, and necessary to the judgment in state court." Bursack, 65 F.3d at 55. In contrast, the Wood case involved a "true default." The defendant did not answer the creditor-plaintiff's complaint in the state civil action. Therefore, while avoiding a blanket rule with respect to default judgments, the Wood court concluded that the fraud issue was not actually litigated in the prior case. Accordingly, this court believes that Wood is not inconsistent with Bursack.
In sum, even if this court's analysis is wrong (see supra Part III.D.3.) and Michigan law gives collateral estoppel effect in an instance when a defendant fails to file an answer in a prior action resulting in a default judgment, i.e., a "true default," a federal policy exception exists. This policy exception is supported by a valid federal purpose. Neither a creditor nor a debtor should be required to litigate their dischargeability issues in a prebankruptcy lawsuit. Also, the defendant-debtor should not be forced to litigate in state court simply to preserve defenses to a subsequent nondischargeability action in bankruptcy. Calvert, 177 B.R. at 586-87 (citing In re Hall, 95 B.R. at 557-58). See also Wood, 199 B.R. at 28.[25]
IV. CONCLUSION
The prior Michigan state court criminal conviction, based upon a nolo contendere plea, is not entitled to collateral estoppel effect under Michigan law. The prior Michigan state court default judgment in the civil action, entered because of failure to answer the complaint, i.e., a "true default", is not entitled to collateral estoppel effect under Michigan law. Even assuming a "true default" judgment is entitled to collateral estoppel effect under Michigan law, such a judgment is not entitled to full faith and credit because a valid federal purpose exception exists.[26]
Plaintiff Vogel's motion for summary judgment is therefore denied. An order shall be entered accordingly.
NOTES
[1] The Bankruptcy Code, as amended, is set forth in 11 U.S.C. §§ 101-1330. Unless otherwise stated, all further statutory references are to title 11 of the United States Code.
[2] Section 523(a)(6) of the Code provides in pertinent part, "A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt . . . for willful and malicious injury by the debtor to another entity or to the property of another entity."
[3] On September 27, 1996, this court rendered an extemporaneous oral bench decision. The parties' attorneys were advised that this supplemental opinion, which is entirely consistent with the oral opinion, would follow. The court utilized this procedure to hold the final pretrial conference and to schedule a prompt trial.
[4] Kalita also seems to suggest that there is a material issue of fact regarding whether her conduct during the 1984 altercation with Vogel was willful and malicious. Kalita's affidavit includes several allegations in which she attempts to demonstrate that she was acting in self-defense. Presumably, Vogel disputes this version of the incident. However, the court need not rule on this factual dispute for purposes of deciding the motion. Vogel's motion is predicated on the argument that Kalita is estopped from raising the factual issue of self-defense based on the prior state court judgments arising from the same incident. If Vogel's legal argument is correct, she is entitled to judgment as a matter of law. Conversely, if Kalita is not precluded from raising the issue of self-defense, then the parties will proceed to trial on the issue of whether or not the debt owed to Vogel is dischargeable.
[5] The Brown case involved the exceptions to discharge for debts false pretenses or fraud contained in sections 17a(2) and 17a(4) of the Bankruptcy Act, 11 U.S.C. § 35 (repealed). The Bankruptcy Act was repealed by the Bankruptcy Reform Act of 1978, Pub.L. 95-598, § 401(a), 92 Stat. 2682. The exceptions to discharge involving fraud as set forth in section 523 of the Bankruptcy Code are substantially similar to those in section 17 of the Act. See generally Brown v. Felsen, 442 U.S. at 129, n. 1, 99 S.Ct. at 2208, n. 1.
[6] The quotation in the text is taken from a photocopy of the judgment rendered by the Michigan Circuit Court for the County of Livingston. See Plaintiff's Exhibit D. The underlined language of the quotation represents the part of the judgment which appears to be handwritten. Kalita has not contested the accuracy, authenticity or admissibility of Vogel's exhibits for purposes of this summary judgment proceeding.
[7] This is not an instance in which the underlying judgment was based on a multi-count complaint, thereby making it impossible to determine the grounds upon which the judgment was rendered. See, e.g., Wheeler v. Laudani, 783 F.2d 610 (6th Cir. 1986) (Court reverses grant of summary judgment in favor of creditor in nondischargeability action where it was unclear whether jury verdict in libel action was based on intentional or reckless misconduct).
[8] Kalita's allegation in her affidavit is also supported by the Judgment of Sentence dated June 28, 1985 which provides that Kalita was to be immediately sentenced to custody for a period of not less than 15 months and not more than 48 months. See Plaintiff's Exhibit B.
[9] The Spilman case was somewhat unusual because it was the defendant-debtor who was attempting to invoke the doctrine of collateral estoppel as a defense to a nondischargeability action. More typically, as is the case here, it is the plaintiff judgment creditor who seeks to make offensive use of collateral estoppel to establish that the prior judgment against the defendant-debtor cannot be discharged. Spilman was also exceptional in that the pro se plaintiff-appellant prevailed on appeal and succeeded in obtaining a reversal of the lower court decisions.
[10] In Garden City, the Sixth Circuit was called upon to decide an issue of Michigan law in a case where jurisdiction was based on diversity of citizenship. In this proceeding, federal jurisdiction is predicated upon the bankruptcy jurisdiction under section 1334 of the Judicial Code as opposed to diversity jurisdiction under section 1331. See 28 U.S.C. §§ 1331, 1334. Nevertheless, for purposes of discerning the applicable Michigan law, the analytical approach is the same.
[11] This nineteenth-century rule of pleading survives in the current version of the Michigan Court Rules which pertain to "Pleading Special Matters" including an "Action on Written Instrument." The current court rule provides in relevant part:
(1) In an action on a written instrument, the execution of the instrument and the handwriting of the defendant are admitted unless the defendant specifically denies the execution or the handwriting and supports the denial with an affidavit filed with the answer. The court, may, for good cause, extend the time for filing the affidavits.
MCR 2.112(E)(1).
[12] At the time the case was decided, the Michigan Supreme Court was the only appellate court in Michigan. The Michigan Court of Appeals was not established until 1963.
[13] This court has not found any cases decided by Michigan courts that hold that a "true default" gives rise to collateral estoppel in subsequent cases. The cases cited by Vogel are inapposite. In Prawdzik v. Heidema Brothers, Inc., 352 Mich. 102, 89 N.W.2d 523 (1958), the Michigan Supreme Court held that the doctrine of res judicata barred a litigant from bringing a subsequent action challenging the validity of a stipulated settlement that was placed on the record in a previous trial. There was no such stipulation or settlement between Vogel and Kalita. Moreover, as noted above, the doctrines of res judicata and collateral estoppel are separate and distinct. Therefore, the Prawdzik case is not applicable to the issue before this court which involves the application of collateral estoppel as opposed to res judicata.
[14] In support of her motion, Vogel relies on the Michigan Court of Appeals decision in Detroit Automobile Inter-Insurance Exchange v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980) in which the court stated, "The doctrine of collateral estoppel applies to a default judgment." 95 Mich.App. at 219, 290 N.W.2d 414 (citing Perry & Derrick Co. v. King, 24 Mich. App. 616, 180 N.W.2d 483 (1970)). In Higginbotham, the plaintiff insurance company brought a declaratory judgment action seeking to establish that there was no coverage for injuries incurred by a woman who was shot by her husband. The wife argued that the insurance company was collaterally estopped from denying coverage because a default judgment had previously been entered against her husband. In rejecting the collateral estoppel argument, the court of appeals stated, "Even assuming for the purpose of argument that plaintiff [insurance company] . . . sufficiently participated in the action to become bound by the default decree, the collateral estoppel effect thereof did not extend to the issue of noncoverage under [the husband's] policy." 95 Mich.App. at 219, 290 N.W.2d 414. Thus, the Higginbotham case does not support the conclusion that a true default will give rise to collateral estoppel under Michigan law.
Likewise, the King case cited by the Higginbotham court is also distinguishable. In King, the plaintiff obtained a default judgment against a flour company and an individual who had personally guaranteed the company's debt. Thereafter, it was discovered that the company had not been properly incorporated and the plaintiff brought a second action against the company's individual shareholders seeking to hold them personally liable. The court of appeals held that the second action against the individuals was barred by the doctrine of res judicata because the plaintiff could have included these individuals in the original action, but had failed to do so. The court further held that the doctrine of res judicata applied even though the prior judgment was a default judgment. Thus, King involved the res judicata effect of a default judgment as opposed to the collateral estoppel effect of the judgment. The King case does not hold that a default judgment will give rise to the application of collateral estoppel under Michigan law.
[15] For the reasons discussed in Part III.D.3., infra, and in light of Michigan Supreme Court decisions, this court believes that the Braxton conclusion on this issue is, at best, highly questionable.
[16] The Michigan Court Rules of 1985 became effective March 1, 1985; and therefore, were in effect at the time that Vogel obtained her default judgment against Kalita. The prior General Court Rules of 1963 also contained a similar provision which allowed for the entry of default judgments. See GCR 1963, 520 and DCR 520 (repealed).
[17] The four-part test used in Kurtz included the following factors:
(1) The entire record in the state or other court leading to the default judgment involved must have been before the Bankruptcy Court: and
(2) That record in the state or other court must not be ambiguous as to the facts and theories upon which the default judgment was granted, and those facts must have been necessary to the outcome; and
(3) The basis for the state or other court judgment must be the same as that relied on for non-dischargeability under the Bankruptcy Code; and,
(4) At the very least the procedure which led to the entry of the default judgment in the state court must have strictly followed that court's applicable rules.
Kurtz, 170 B.R. at 601.
[18] This concept of joinder is also sometimes referred to as "similiter," whereby one party expressly accepts an issue of act raised by the opposite party. BLACK'S LAW DICTIONARY 1383 (6th ed. 1990).
[19] However, the answer may state "no contest". MCR 2.111(C)(2). "A pleading of no contest . . . permits the action to proceed without proof of the claim" and "has the effect of an admission only for purposes of the pending action." MCR 2.111(E)(3). Therefore "no contest" in a civil action is equivalent to "nolo contendere" in a criminal case, and therefore there exists no collateral estoppel effect. See supra, Part III.C.
[20] This Michigan Supreme Court decision is discussed in Part III.D.2.b. supra. As noted above, Jacobson v. Miller was relied upon by the Michigan Supreme Court as recently as 1990 and it is still good law.
[21] Although it is not necessary to address for purposes of this court's decision, this discussion also stands for the proposition that when a contested trial occurs, actual litigation of facts not directly raised by the pleadings may occur. This is consistent with the concept that factual and legal issues may be tried by either express or implied consent. MCR 2.118(C) (amendments to conform to evidence). Cf. FED.R.CIV.PRO. 15(b) (same); FED.R.BANKR.PRO. 7015 (same).
[22] For example, Braxton v. Litchalk, 55 Mich. App. 708, 223 N.W.2d 316 (1974) recognizes that facts must be "actually litigated" to apply collateral estoppel. That court apparently determined that a motion to set aside a true default judgment, which is subsequently denied, constitutes sufficient litigation to apply collateral estoppel. However, Braxton is unclear as to whether the facts were at issue by the defendant's answer or only whether good cause to set aside the default was considered in the first action. Braxton does not consider or cite Jacobson v. Miller. Also, Braxton relies upon Perry v. King, 24 Mich.App. 616, 180 N.W.2d 483 (1970), which was decided on res judicata grounds, to support its conclusion. As discussed above in Part III.A., res judicata and collateral estoppel are different doctrines each of which has its own focus.
[23] The decisions by the Sixth Circuit Court of Appeals, discussed in Part III.D.1. supra, are consistent with the analysis. The Spilman v. Harley requirement that "actual litigation" occur is not met in the case of a true default and thus, under Spilman, there is no collateral estoppel effect. Bursack, which declined to address the issue of a "true default," is consonant with the analysis because collateral estoppel was applied in that case when the party participated in the action by, among other things, filing an answer to the complaint. In those instances when Michigan bankruptcy courts have applied collateral estoppel in a default setting, discussed in Part III.D.2.d. supra, it appears that an answer was filed which placed contested facts at issue.
[24] In refusing to set aside the judgment, the Oakland County Court apparently concluded that the defendant-debtor had received adequate notice of the prior lawsuit based on the fact that the defendant's father had informed him by telephone that the plaintiff was trying to serve him with a complaint. Wood, 199 B.R. at 26.
[25] This court's alternative holding, i.e., full faith and credit shall not be given to true default judgments, is limited. The federal purpose exception to full faith and credit does not apply when a party files an answer in the state court litigation and subsequently suffers a default judgment. In that circumstance, the party embarked upon litigation, raised contested facts, and participated, to some extent, in the prior proceeding. Such a participating party was not required or forced to litigate facts pertaining to a future nondischargeability proceeding a conscious decision was made to do so. The ramification is that, when the party abandons the litigation and a default judgment is entered, collateral estoppel may apply in the subsequent bankruptcy nondischargeability action.
[26] Having concluded that the original 1985 default judgment does not create an estoppel, this court similarly concludes that the subsequent default judgment obtained in 1995 does not estop Kalita from denying that her actions were willful and malicious. The 1995 action did not assert any additional claims against Kalita, but simply sought to renew the 1985 default judgment. Moreover, Kalita also suffered a "true default" judgment on the 1995 action. Accordingly, this court holds that the 1995 default judgment does not preclude Kalita from contesting the issue of whether her actions were willful and malicious.
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COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, AtLee and Senior Judge Bumgardner
Argued at Richmond, Virginia
MARK DAVID MURGIA
MEMORANDUM OPINION* BY
v. Record No. 0788-16-1 JUDGE RUDOLPH BUMGARDNER, III
MAY 30, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Marjorie A. Taylor Arrington, Judge
Charles B. Lustig for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Mark D. Murgia appeals his conviction for computer solicitation of a minor in violation of
Code § 18.2-374.3(D). He argues the evidence was insufficient to prove he solicited, proposed, or
incited the victim to commit any of the acts proscribed by Code § 18.2-374.3(C). We agree the
evidence was insufficient and reverse the conviction.
The victim was a sixteen-year-old female high school student. She ran track, and the
defendant was a specialty coach for her track team. The victim worked with the defendant on four
or five occasions, and they had exchanged cell phone numbers. In March of 2015, when preparing
for a track meet, the victim exchanged text messages with the defendant to schedule stretching
sessions. In one message, the victim asked for help in the high jump event. The defendant
responded, “Ok, cool...I’m gonna stretch your tight ass legs out and loosen them hips up too.” The
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
defendant also sent messages stating, “Wow.. So u an under cover lover lol mmmm-mmm,” and
“I’m getting my sip on… Buzzin…Wish we could chill right now….Is that weird lol.”
Another message exchange began with the victim texting, “I have to get better and you’re
the only person I know that can actually focus their time just on me.” The defendant responded,
“Meow! I like it when u get possessive... U makin me feel some kinda way boo.” She responded,
“It’s true lol coach stan has like 30 other girls to focus on plus the boys too.” He wrote back, “I
know u right I’m just messin with you...I like working with yo sexy self. Sorry if I’m blunt just
keeping it real.”
At one point, the defendant told the victim he had had a “crazy” dream about her. When she
asked about the dream, he texted back:
Lol ok u asked for it… Don’t know where we were but we were
watching TV like u said last night but we were hugged up cuddling
like it was normal lol…that quickly escalated to a body message
[sic] but we were both naked as the day born (awkward but
strangely comfortable) …u were on your stomach and the message
[sic] turned into my lips on the back of your thighs and butt… I
spread your legs from behind and started slowly sucking on your
kitty lips and working your clit in my mouth…u turned over and I
kissed up your stomach to your breasts and gently sucked your
nipples while I worked my incredibly hard dick up your thigh…I
put the head against your kitty lips and slowly pushed inside you
little by little until I was deep inside you…slowly long stroked that
kitty, I could feel you wrapped tight around me taking me deep
inside you…I was kissing your neck and you flipped me over bent
over to kiss me and started slow dragging that pussy up and down
my shaft like it was yours until I felt your warm cum run down my
dick and I let go inside of you filling you with hot me…yeah
needless to say I woke up like wtf??
The defendant also texted, “[d]ream came out of nowhere, sorry if that hurt your eyes
while readin,” and “Crickets…..U prob like coach is a freak! Lmao ….umm yeah that dg.”
The victim testified she “didn’t think anything of” the defendant’s text message about his
dream, but after she sent the message to a friend, the police became involved. On
cross-examination, the victim testified that when the defendant worked with her as a coach, they
-2-
always met in public places, and other people were always present. She testified the defendant
never touched her or said anything inappropriate to her. He never asked her to meet him alone,
even after sending the message about the dream.
When interviewed by Officer Perry M. Bossuot, the defendant denied having contact by
phone or text message with any of the students he coached. He specifically denied having
contact with any students at the victim’s school, stating that such contact would be inappropriate.
The officer asked about possible “racy” text messages the defendant may have sent. The
defendant stated it was “possible” he sent such messages “mainly because he was a physical
therapy person.”
In finding appellant guilty, the trial court stated it considered the conduct of the accused,
“whatever intent flows naturally from that conduct,” and the context in which the
communications took place. It noted that the victim was a sixteen-year-old high school student,
and the defendant was her track coach. The trial court based its finding of guilt on the extremely
graphic nature of the messages and the relationship of the victim and the defendant.
“On appeal, we will consider the evidence in the light most favorable to the
Commonwealth, as it prevailed in the trial court.” Whitehurst v. Commonwealth, 63 Va. App.
132, 133, 754 S.E.2d 910, 910 (2014). Code § 18.2-374.3(D) provides:
Any person who uses a communications system, including
but not limited to computers or computer networks or bulletin
boards, or any other electronic means, for the purposes of
soliciting, with lascivious intent, any child he knows or has reason
to believe is at least 15 years of age but younger than 18 years of
age to knowingly and intentionally commit any of the activities
listed in subsection C if the person is at least seven years older than
the child is guilty of a Class 5 felony.
The activities listed in Code § 18.2-374.3(C) are:
1. Expose his sexual or genital parts to any child to whom
he is not legally married or propose that any such child expose his
sexual or genital parts to such person;
-3-
2. Propose that any such child feel or fondle his own
sexual or genital parts or the sexual or genital parts of such person
or propose that such person feel or fondle the sexual or genital
parts of any such child;
3. Propose to such child the performance of an act of
sexual intercourse, anal intercourse, cunnilingus, fellatio, or
anilingus or any act constituting an offense under § 18.2-361; or
4. Entice, allure, persuade, or invite any such child to enter
any vehicle, room, house, or other place, for any purposes set forth
in the preceding subdivisions.
“[T]he gravamen of [the crime of solicitation lies] in counselling, enticing or inducing
another to commit a crime.” Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837,
840 (1981) (quoting Cherry v. State, 306 A.2d 634, 637-38 (Md. Ct. Spec. App. 1973)).
“Inciting or soliciting another to commit a crime is the act of the
least magnitude which is punishable by the common law. In such
offenses the actor does nothing himself but he urges others to
violate the law. The necessity for punishing such persons is
obvious, and such conduct is generally punished as a substantive
crime, notwithstanding the solicitation does not move the party
solicited to commit the offense.”
Id. (quoting Cherry, 306 A.2d at 638).
The offense is complete at the time of the actual solicitation; there is no requirement that
the accused “proceed to the point of some overt act in the commission of crime.” Wiseman v.
Commonwealth, 143 Va. 631, 638, 130 S.E. 249, 251 (1925). “The act of solicitation may be
completed before any attempt is made to commit the solicited crime.” Brooker v.
Commonwealth, 41 Va. App. 609, 614, 587 S.E.2d 732, 734 (2003) (quoting Ford v.
Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990)).
The specific intent to commit [a crime] may be inferred from the
conduct of the accused if such intent flows naturally from the
conduct proven. Where the conduct of the accused under the
circumstances involved points with reasonable certainty to a
specific intent to commit [the crime], the intent element is
established.
-4-
Id. at 614, 587 S.E.2d at 734-35 (quoting Wilson v. Commonwealth, 249 Va. 95, 101, 452
S.E.2d 669, 674 (1995)). “[I]ntent is ‘a secret operation of the mind.’” Riegert v.
Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 807-08 (1977) (quoting Trogdon v.
Commonwealth, 72 Va. (31 Gratt.) 862, 872 (1878)).
While the defendant does not deny that he sent the messages to the victim, he maintains
that the evidence was insufficient to prove that he encouraged or incited the victim to commit
any of the acts enumerated in the statute. The defendant contends that the holding in Ford
controls this case.
Ford was convicted of violating Code § 18.2-29, Criminal solicitation.1 In Ford, two
female students from Randolph-Macon College were waiting in the drive-through lane at a
McDonald’s restaurant. Ford, 10 Va. App. at 225, 391 S.E.2d at 603-04. Ford, a McDonald’s
employee, walked to their car, leaned against the driver’s side of the car and asked the women if
they attended Randolph-Macon. Id. at 225, 391 S.E.2d at 604. The women answered
affirmatively and resumed their conversation. Id. Ford mumbled something. Id. One of the
women asked Ford what he wanted. Id. Ford replied that he wanted sex, and he stated, “‘I want
to lick your pussy.’” Id. The women rolled up their car windows and reported Ford’s behavior
to the manager.
This Court reversed Ford’s conviction, finding that Ford’s statements “were no more than
the expression of his own desire and did not constitute a command, entreaty or attempt to
persuade either” woman to engage in oral sodomy. Id. at 228, 391 S.E.2d at 605. The trial court
was “plainly wrong in concluding that the Commonwealth had sustained its burden of proving
that Ford spoke to [either woman] with the intent ‘to induce’ either of them to act.” Id.
1
At the time of the offense, Code § 18.2-29 provided, in pertinent part: “Any person
who commands, entreats, or otherwise attempts to persuade another person to commit a felony,
shall be guilty of a Class 6 felony.”
-5-
In this case, the messages sent to the victim did not show the defendant intended to
induce the victim to commit a criminal offense, though one message contained graphic
descriptions of sexual conduct with the victim. “The conduct constituting the act of solicitation
must . . . be done with the intent ‘to induce another to act.’” Id. at 227, 391 S.E.2d at 604
(quoting Pedersen v. City of Richmond, 219 Va. 1061, 1067, 254 S.E.2d 95, 99 (1979)).
In the most explicit message sent to the victim, the defendant described a dream in which
he engaged in sexual acts with the victim. However, the message did not entice, persuade or
entreat the victim to engage in any of the proscribed conduct. It simply described sexual
conduct. “[T]he gravamen of [the crime of solicitation lies] in counselling, enticing or inducing
another to commit a crime.” Huffman, 222 Va. at 828, 284 S.E.2d at 840 (quoting Cherry, 306
A.2d at 637-38). Although that message contained graphic descriptions of sexual conduct with
the victim, it never expressed a desire of the defendant to commit any of the enumerated sexual
acts with the victim, much less expressed any desire to entice the victim to commit such acts.
In another message to the victim, the defendant wrote, “I’m gonna stretch your tight ass
legs out and loosen them hips up too.” The message was sent in response to the victim asking the
defendant for assistance with attaining a certain height in the high jump track event. The defendant
was the victim’s high jump specialty coach. Though crude, the message did not constitute a
command or entreaty to persuade the victim to commit a crime.
While there is no requirement to prove that the defendant committed an overt act toward the
commission of a sexual offense, see Wiseman, 143 Va. at 637-38, 130 S.E. at 251, such evidence
can be considered in analyzing the defendant’s intent to induce the victim. “Proof of intent inheres
in the words or conduct of the accused.” Dove v. Commonwealth, 41 Va. App. 571, 578, 586
S.E.2d 890, 894 (2003). The evidence showed the defendant took no step toward committing any
illegal sexual activity with the victim. The victim testified there were always other persons present
-6-
when she worked with the defendant, he never acted inappropriately toward her, he never asked her
to meet him alone, he never touched her, and he did not contact her again after he sent the dream
message.
We cannot say the defendant’s communications crossed the line from “words alone” to
inducing or enticing the victim. This case is distinguishable from other cases where this Court
affirmed convictions for solicitation. Bloom v. Commonwealth, 34 Va. App. 364, 372-73, 542
S.E.2d 18, 22 (2001), held the accused’s actions and statements were not “words alone” when
the accused communicated to the minor victim that he wanted to perform oral sodomy on her, he
arranged to meet her, and he went to an agreed location to meet her. Brooker held the trial court
could infer the intent to solicit a minor to commit illegal sex acts via a communications device
when, inter alia, the accused sent images of his genitals to the victim, inquired if the victim
wanted to “see and feel the real thing,” asked the victim if she would come to his residence,
wrote that he would have sexual intercourse with the victim if she was present, and asked if the
victim would lose her virginity to him. Brooker, 41 Va. App. at 614-15, 587 S.E.2d at 735.
In the instant case, no evidence showed the defendant’s messages constituted an entreaty
or effort to persuade the victim to engage in any illegal sexual conduct. Viewing the evidence in
the light most favorable to the Commonwealth, the conviction, “was without evidentiary support.”
Ford, 10 Va. App. at 228, 391 S.E.2d at 605. The defendant’s text messages “did not rise to the
level of incitement to criminal activity and therefore, standing alone, are insufficient to sustain a
conviction” for a violation of Code § 18.2-374.3(D). Ford, 10 Va. App. at 227, 391 S.E.2d at
604. Accordingly, we reverse and dismiss.
Reversed and dismissed
-7-
Beales, J., dissenting.
As the majority opinion aptly states, “The gravamen of [the crime of solicitation lies] in
counselling, enticing or inducing another to commit a crime.” Huffman v. Commonwealth, 222
Va. 823, 827, 284 S.E.2d 837, 840 (1981) (quoting Cherry v. State, 306 A.2d 634, 637-38 (Md.
Ct. Spec. App. 1973)). However, I must respectfully depart from the majority’s conclusion that,
“in the instant case, no evidence showed the defendant’s messages constituted an entreaty or
effort to persuade the victim to engage in any illegal sexual conduct.” (Emphasis added). I
would affirm the trial court’s determination that appellant’s course of conduct constituted an
entreaty to the minor female student athlete to engage in a sexual act with him because the trial
court was certainly not without evidence to support its finding of guilt.
I. BACKGROUND
The victim in this matter was a sixteen-year-old female track student at her local high
school. Appellant, forty years old at the time of the offense, was a track coach who had agreed
to help her with her long jump. Between October 2014 and March 2015, the two exchanged text
messages indicative of a normal coach-to-student relationship. However, throughout the month
of March, appellant’s text messages to the victim became increasingly personal. One night, he
even told her that he was “getting my sip on . . . Buzzin,” and he said, “[w]ish we could chill
right now.” He also called her “Boo” as a term of endearment, told her that she made him “feel
some kind of way,” told her that he would be her “secret,” followed by a smiling face emoji2
with hearts for eyes. Appellant referred to her as “yo sexy self” and told her, “I’m gonna stretch
your tight ass legs out and loosen them hips up too.” Appellant later admitted (after lying to
police and saying that he never texted any students because it would be inappropriate) that it was
2
An “emoji” is a small digital image or icon used to express an idea or emotion in
electronic communications.
-8-
“possible” he sent a “racy” text message to someone. He attempted to explain to police that he
sent such a text because he was a “physical therapy guy.” The trial court, who was the factfinder
in this bench trial, skeptically observed, “I don’t know too many physical therapists who use that
language.” Finally, on March 21, 2015, appellant texted “ing[sic] right b4 I went to sleep, had a
CRAZY dream with u in it…wow.” After which, when the victim asked for details about the
dream, appellant texted her the following:
Lol ok u asked for it… Don’t know where we were but we were
watching TV like u said last night but we were hugged up cuddling
like it was normal lol…that quickly escalated to a body message
[sic] but we were both naked as the day born (awkward but
strangely comfortable) …u were on your stomach and the message
[sic] turned into my lips on the back of your thighs and butt…I
spread your legs from behind and started slowly sucking on your
kitty lips and working your clit in my mouth…u turned over and I
kissed up your stomach to your breasts and gently sucked your
nipples while I worked my incredibly hard dick up your thigh…I
put the head against your kitty lips and slowly pushed inside you
little by little until I was deep inside you…slowly long stroked that
kitty, I could feel you wrapped tight around me taking me deep
inside you…I was kissing your neck and you flipped me over bent
over to kiss me and started slow dragging that pussy up and down
my shaft like it was yours until I felt your warm cum run down my
dick and I let go inside of you filling you with hot me…yeah
needless to say I woke up like wtf??
When the victim did not respond to this text, appellant again texted, “[d]ream came out of
nowhere, sorry if that hurt your eyes while readin” and then texted her again, saying,
“Crickets…..U prob like coach is a freak!”
II. ANALYSIS
A. Standard of Review
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). “Viewing the evidence in
-9-
the light most favorable to the Commonwealth, as we must since it was the prevailing party in the
trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must
instead ask whether ‘any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)) (emphasis in
original). “This familiar standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
B. Appellant’s Lascivious Intent is Clearly Established
The trial court’s finding that appellant possessed the requisite lascivious intent is
supported overwhelmingly by the evidence on appeal. The majority states, “We cannot say the
defendant’s communications crossed the line from ‘words alone’ to inducing or enticing the
victim.” Thus, the majority concludes that no rational trier of fact could have found that
appellant intended to solicit the victim.
Appellant was in a position of influence and authority over the victim. In such position,
he sent a pornographically detailed account of his sexual desires to the victim as an expression of
his feelings for her and his fantasy for the two of them. He sent this text of his daydream about
her to her after repeatedly making inappropriate remarks about her as his “boo,” telling her that
he would be her “secret,” telling her that she made him “feel some kind of way,” and explaining
to her how he planned to “stretch [her] tight ass legs out and loosen them hips up too.” When
confronted, appellant lied to police about even texting her in the first place, and he did all of this
knowing that she needed his help and coaching expertise to improve herself in the long jump.
The majority relies on Ford v. Commonwealth, 10 Va. App. 224, 391 S.E.2d 603 (1990),
to conclude that “the messages sent to the victim did not show the defendant intended to induce
- 10 -
the victim to commit a criminal offense, though one message contained graphic descriptions of
sexual conduct with the victim.” The issue in Ford was whether appellant’s offensive statement
(where he said, “I want to lick your pussy”) constituted idle words or represented an entreaty for
action. Id. at 226, 391 S.E.2d at 604 (examining whether Ford’s statements “constitute[d] a
command, entreaty or attempt to persuade”). This Court concluded that the trial court was
plainly wrong because Ford did not clearly possess the intent to solicit the two young women as
his words could not be construed as a serious request, but instead were a statement to them that
was simply obnoxiously offensive. The situation in Ford was significantly different than in this
case. Ford did not know the two women at all to whom he made the isolated comment while in
public. Ford’s behavior was crude, obnoxious, and profane, but this Court concluded that it did
not constitute a serious entreaty for sex. In the present case, it was reasonable for the trial court
to infer from the evidence that appellant sought sexual favors from his track student – a sixteen-
year-old girl with whom he had been exchanging secret text messages for some time and to
whom he had developed an inappropriate attachment.
Thus, contrary to the majority’s conclusion that appellant had no lascivious intent
because the text message merely “described sexual conduct,” I believe a rational factfinder could
have found that the language used in appellant’s text message went far beyond a clinical
description of sex – and was sent when appellant was in a “state of mind that is eager for sexual
indulgence . . . .” Campbell v. Commonwealth, 227 Va. 196, 199, 313 S.E.2d 402, 404 (1984).
C. Appellant Proposed Sexual Activity to the Victim
To sustain a conviction under Code § 18.2-374.3(D), one way the Commonwealth can
prove an individual’s guilt is by showing that the individual, with lascivious intent, “propose[d]
to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus,
fellatio, or anilingus or any act constituting an offense under § 18.2-361 . . . .” Code
- 11 -
§ 18.2-374.3(C)(3). Applying this deferential standard of review to the facts of this case, the text
messages that appellant sent to the victim reveal a course of conduct which culminated on March
21, 2015 in a lengthy and sexually explicit text of what his daydream or fantasy about her was
before he went to sleep. Before sending this text of his daydream fantasy, appellant specifically
said “right b4 I went to sleep, had a CRAZY dream with you in it . . . .” (Italics added).
Appellant was relaying a daydream or fantasy – not a literal dream that he experienced while
sleeping. A rational factfinder, after reading this sexually explicit text message sent to the
sixteen-year-old victim that describes multiple acts of sexual intercourse and cunnilingus, could
infer that this was not just a hypothetical situation – or an idle dream – pulled out of thin air. It
was, when viewed together with all of appellant’s other recent text messages, the deliberate
effort of a forty-year-old coach to entice his sixteen-year-old student (whom he referred to as “yo
sexy self”) into sexual activity with him. A rational factfinder could conclude that, in the context
of appellant’s relationship with the victim, the daydream text was intended as a proposal that the
two engage in sexual intercourse and cunnilingus (oral sex). In addition, a rational factfinder
certainly could have reasonably inferred that appellant’s increasingly panicked follow-up texts
were further proof that appellant’s text of his daydream fantasy was a proposal to engage in
sexual intercourse with the victim – as appellant determined that he had been implicitly rejected
by the victim’s silence.3
The majority argues that “the message did not entice, persuade or entreat the victim to
engage in any of the proscribed conduct. It simply described sexual conduct.” The sexual acts
3
How the victim interpreted these texts or felt about her communications with her coach
is legally irrelevant. “Criminal solicitation involves the attempt of the accused to incite another
to commit a criminal offense. ‘It is immaterial whether the solicitation has any effect and
whether the crime solicited is in fact committed . . . . The gist of [the] offense is incitement.’”
Brooker v. Commonwealth, 41 Va. App. 609, 614, 587 S.E.2d 732, 734 (2003) (quoting Branche
v. Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692, 697 (1997)) (alterations in original).
- 12 -
appellant described performing on the victim in the text about his daydream that he sent to the
victim is just one piece of evidence to be viewed against the larger backdrop of their
communications. “[I]n a circumstantial evidence case, such as the case currently before us, the
accumulation of various facts and inferences, each mounting upon the others, may indeed
provide sufficient evidence beyond a reasonable doubt” for us to conclude that appellant
entreated the victim to engage in sexual activity enumerated in Code § 18.2-374.3(C)(1)-(4). See
Ervin v. Commonwealth, 57 Va. App. 495, 505, 704 S.E.2d 135, 140 (2011) (en banc). The
majority points to this Court’s decisions in Bloom v. Commonwealth, 34 Va. App. 364, 372-73,
542 S.E.2d 18, 22 (2001), and Brooker v. Commonwealth, 41 Va. App. 609, 587 S.E.2d 732
(2003), to reach the conclusion here that, because appellant’s communications were via text
message and not in person, the messages needed to be far more direct than they were in this case.
However, Brooker and Bloom do not represent the minimum evidence required for conviction
under Code § 18.2-374.3; these decisions simply show situations in which the evidence is
sufficient – but not minimally sufficient. In addition, I fear that adopting the majority’s view
may have the unintended consequence of insulating creative offenders who seek to entice
vulnerable children by using indirect commands or statements instead of words such as “I want
to” or “Will you perform x?” I do not believe that the General Assembly intended that an
offender would have to utter certain “magic words” in order to be convicted under this statute.
III. CONCLUSION
Given our standard of review, we are obligated on appeal to uphold appellant’s
conviction under Code § 18.2-374.3 unless it is plainly wrong or unsupported by evidence. In
sum, the evidence showed that appellant, with lascivious intent, developed a secret aspect to his
relationship with the victim by texting her privately after school over a period of time. Appellant
used his position as her coach to inappropriately and repeatedly text the victim messages
- 13 -
signaling his sexual interest in her that culminated in a highly explicit text of his daydream about
her, in which appellant set out his fantasies with the victim. Given the totality of these
circumstances, I simply cannot say that no rational factfinder could have inferred that appellant
was entreating the victim into proscribed sexual activity with him – and, therefore, that no
rational factfinder could have convicted him under Code § 18.2-374.3. For all of these reasons, I
would affirm the trial court’s conviction of appellant.
- 14 -
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NUMBER 13-11-00787-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LORENZO YBARRA, JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Per Curiam Memorandum Opinion1
Relator, Lorenzo Ybarra, Jr., filed a petition for writ of mandamus in the above
cause on December 21, 2011, contending that the trial court erred in entering a
judgment nunc pro tunc after the expiration of its plenary power. The trial court held
that a clerical error existed in the divorce decree wherein it provided for a conveyance of
.067 acres of land instead of 0.67 acres of land, the latter being the entirety of the parcel
of property. The Court requested and received a response to the petition for writ of
1
See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is
not required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
mandamus from the real party in interest, Dora Aguiar, formerly known as Dora Lopez
Ybarra.
The Court, having examined and fully considered the petition for writ of
mandamus and the response thereto, is of the opinion that relator has not shown
himself entitled to the relief sought. See, e.g., Escobar v. Escobar, 711 S.W.2d 230,
231 (Tex. 1986) (concluding that an error in the amount of acreage awarded to a
claimant was a clerical error subject to correction by judgment nunc pro tunc); Davis v.
Davis, 647 S.W.2d 781, 785 (Tex. Civ. App.—Austin 1983, no writ) (concluding that an
error in the number of lots utilized to describe a residence was a clerical error subject to
correction by nunc pro tunc); see also Sam Eng, Inc. v. Barnett Drywall & Supply, Inc.,
No. C14-87-00861-CV, 1988 Tex. App. LEXIS 956, at **5–6 (Tex. App.—Houston [14th
Dist.] May 5, 1988, no writ) (not designated for publication) (same). Accordingly, the
petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
20th day of January, 2012.
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24 F.Supp.2d 318 (1998)
OUTOKUMPU COPPER STRIP, B.V., Plaintiff,
v.
UNITED STATES, Defendant,
Hussey Copper, Ltd., The Miller Co., Olin Corp., Revere Copper Prod., Inc., International Assoc. of Machinists & Aerospace Workers, International Union, Allied Indus. Workers of America (AFL-CIO), Mechanics Educ. Soc'y of America (Local 56), and United Steelworkers of America (AFL-CIO/CLC), Defendant-Intervenors.
Slip Op. 98-140. Court No. 97-07-01155.
United States Court of International Trade.
September 29, 1998.
JUDGMENT ORDER
DICARLO, Senior District Judge.
The United States Department of Commerce has submitted its Results of Redetermination in accordance with this Court's Remand Order of June 23, 1998 in the case of Outokumpu Copper Strip, B.V. v. United States, 15 F.Supp.2d 806, Slip Op. 98-85, Court No. 97-07-01155. In its Redetermination, Commerce corrected two ministerial errors and recalculated the dumping margin for Outokumpu Copper Rolled Products. The revised margin for the period August 1, 1990 through July 31, 1991 is 2.03 percent.
The Court having reviewed the Redetermination Results, and Commerce having complied with the Court's Remand, and no comments having been received from the parties within the time limit set in the Remand Order, it is hereby
ORDERED that the Remand Results are affirmed; and it is further
ORDERED that, as all other issues have been decided, this action is dismissed.
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440 A.2d 727 (1982)
Pasco DeFUSCO
v.
Frank GIORGIO, Jr., et ux.
No. 79-400-Appeal.
Supreme Court of Rhode Island.
January 29, 1982.
*728 William J. Riccitelli, Cranston, for plaintiff.
Keven A. McKenna, Providence, for defendants.
OPINION
KELLEHER, Justice.
The defendants in this civil action, Frank Giorgio, Jr., and his wife Pauline (the Giorgios), appeal the denial of their motion to vacate a consent judgment under Rule 60(b) of the Superior Court Rules of Civil Procedure. The facts pertinent to their appeal are as follows.
The Giorgios had obtained funds from the plaintiff Pasco DeFusco (DeFusco) and executed a promissory note on September 8, 1975, in the amount of $44,000. On January 14, 1977, DeFusco instituted suit on the note to recover a balance allegedly due in the amount of $33,265.67, asserting that the Giorgios were in default. Through their counsel at the time, the Giorgios answered the complaint, denying that the sum DeFusco sought to recover was the amount outstanding on the note. In their answer they also interposed the affirmative defenses of fraud and usury, charging that their signatures on the note had been procured through threats and under duress and that *729 the interest terms of the promissory note were usurious and unenforceable under state law.
On the day of trial, the Giorgios presented the trial justice with a consent judgment drafted by their attorney, agreeing to judgment for DeFusco in the amount of $38,500. This figure included the balance DeFusco alleged was due on the note, interest and costs, plus DeFusco's attorney's fees. Under the terms of the judgment, the Giorgios were to pay DeFusco $3,500 by the end of November 1977, with the balance to be paid in equal monthly installments with 15 percent interest per annum. The Giorgios also agreed to secure the judgment debt by a mortgage on their real estate. The consent judgment was signed by both Frank and Pauline Giorgio and was entered on November 25, 1977.
According to DeFusco, the Giorgios failed to make payments in compliance with the provisions of the judgment. He obtained an execution and levied on their property. In an effort to prevent the impending sale, the Giorgios engaged new counsel, currently representing them on this appeal, and moved to vacate the consent judgment and to recall the execution. The motion to vacate the judgment was made within a few days of the running of the one-year time limitation prescribed by Super.R.Civ.P. 60(b).
After a hearing on these motions, the trial justice determined that, prior to signing the consent judgment, the Giorgios had been fully advised by competent counsel of their rights and of the ramifications of the entry of such a judgment. Concluding that the Giorgios had not satisfied their burden to establish that the "judgment was entered by mistake, accident, or duress, or misrepresentation," he denied the motions.
We now review the Giorgios' assertions of errors by the trial justice, bearing in mind the circumspect nature of our review of such appeals. As noted by Professor Kent: "An appeal from an order denying a motion to vacate judgment under Rule 60(b) presents only the correctness of that order and does not raise questions concerning the correctness of the judgment sought to be vacated." 1 Kent, R.I.Civ.Prac., § 60.10 at 457 (1969).
The Giorgios relied in part on subsections (b)(3) (fraud, misrepresentation, or other misconduct of an adverse party) and (b)(6) (any other reason justifying relief from operation of the judgment) of Rule 60 in seeking to vacate the consent judgment. They assert that the trial justice's ruling was grounded on an incorrect standard of law because he failed to make express findings on the question of whether the Giorgios had established meritorious defenses to DeFusco's original action to recover on the promissory note. Furthermore, the Giorgios contend that it would be inequitable to deny them their day in court to present such meritorious defenses.
This argument misperceives the nature of a consent judgment; the Giorgios have, in effect, already had their day in court to present these defenses. By entering into the consent judgment, they waived all defenses relating to the subject matter underlying the judgment. Walling v. Miller, 138 F.2d 629, 631 (8th Cir.1943), cert. denied, 321 U.S. 784, 64 S.Ct. 781, 88 L.Ed. 1076 (1944); Inmates of the Boys' Training School v. Southworth, 76 F.R.D. 115, 124 (D.R.I. 1977). A judgment entered by consent cannot "be opened, changed, or set aside without the assent of the parties in the absence of fraud, mutual mistake or actual absence of consent * * *." Douglas Construction And Supply Corp. v. Wholesale Center of North Main St. Inc., 119 R.I. 449, 452, 379 A.2d 917, 918 (1977); In re Julie, 114 R.I. 419, 422-23, 334 A.2d 212, 214-15 (1975) (Joslin, J., concurring); Matthews v. Matthews, 105 R.I. 121, 126, 249 A.2d 647, 650 (1969). Thus, for purposes of the trial court's determination of whether grounds existed under Rule 60(b)(3) and (b)(6) to set aside the judgment, any defenses that the Giorgios may have had against DeFusco's recovery on the note were irrelevant. See also Kitchens v. Clay, 224 Ga. 325, 161 S.E.2d 828 (1968) (in action to set aside judgment, issue of fraud in suing on promissory note alleged to have been forged *730 is not material when moving party had been aware of defense and had failed to prove allegation in prior litigation); Gulf Acceptance Loan Corp. v. Demas, 205 So.2d 855 (La. Ct. App. 1968) (because defendant failed to present defense that creditor did not remit unearned capitalized interest as of accelerated maturity date of note, default judgment will not be set aside in absence of showing good reason or cause to timely appear and present defense); Bundy v. Ayscue, 5 N.C. App. 581, 169 S.E.2d 87 (1969) (question of meritorious defense is immaterial in absence of any showing of mistake, surprise, or excusable neglect in failing to defend the action).
The Giorgios bore the burden of convincing the trial court that legally sufficient grounds, as specified under Rule 60(b), existed to warrant vacating the judgment. See Pasquazzi v. Pasquazzi, 119 R.I. 554, 555, 381 A.2d 233, 233-34 (1977). To this end they attempted to show that their consent to the judgment had not been given voluntarily, but rather was a result of duress and coercion. Pauline Giorgio testified that on the day she signed the consent judgment, she was extremely distraught. She stated, "Anything could have been put before me at that time of the day on that particular day, and it would have been completely incomprehensible to me at that time." She explained that she agreed to the judgment out of fear for the safety of her son who had been bringing the weekly payments on the note to DeFusco. Her fear, she stated, stemmed from the possible consequences she perceived might follow if she testified about "loan sharking" activities of DeFusco. The foundation for her perceptions appears to be limited to the alleged experience of a personal friend who also owed DeFusco money. Mrs. Giorgio elaborated:
"We have a personal friend of ours who had borrowed money from Mr. DeFusco and was paying him also on a weekly basis, and the weekly money he was bringing to Mr. DeFusco was never deducted from the principal either, and on one occasion he went to Mr. DeFusco's house to tell him he would no longer keep the payments up, and at that time, he was assaulted by Mr. DeFusco and later the individual brought charges against Mr. DeFusco. I feel and really believe, and still do, that he is capable of such a thing."
Mrs. Giorgio did not allege that DeFusco had at any time made specific threats against her or members of her family. Further, the record contains no indication whatsoever of any coercion exerted by DeFusco before or during the period elapsing from the institution of his suit to the entry of the consent judgment. Although Mrs. Giorgio believed that her attorney was aware of how she felt about DeFusco with regard to his "loan sharking" activities, she admitted that on the day she signed the consent judgment she did not inform her attorney that she feared for the physical well-being of her son. Furthermore, she agreed that her attorney had advised her of the nature of the judgment and that she had not objected to any of its terms. Mr. Giorgio took the stand only briefly, stating that he agreed with the testimony of his wife.
In rebuttal DeFusco called the Giorgios' former attorney, who testified that he believed the Giorgios had signed the judgment voluntarily and willingly. He added that they did not appear to be under duress when it was signed; that Mrs. Giorgio appeared no more nervous or upset on that day than she had on other occasions when they discussed the case and other matters he had handled for them; that Mr. Giorgio seemed fully aware of what he was signing; and, finally, that he had advised Mr. Giorgio that if they settled the case, they waived their right to have a court determination that the loan was usurious and unenforceable. In the face of such advice, he was instructed by Mr. Giorgio to work out a possible arrangement with DeFusco's attorney to settle the case. DeFusco also presented the testimony of an individual who had been present at the meeting with Mr. Giorgio and his attorney on the day set for trial in this matter. This witness testified that Mr. Giorgio had informed his attorney *731 "that he wanted to have the case settled at all costs because of adverse publicity that would result from the case if it was heard."
Whether or not relief from a judgment will be granted rests within the sound discretion of the trial justice. Equal Employment Opportunity Commission v. Safeway Stores, Inc., 611 F.2d 795, 799 (10th Cir.1979); Chase v. Almardon Mills, Inc., 102 R.I. 579, 580-81, 232 A.2d 390, 391 (1967); see also Pasquazzi v. Pasquazzi, 119 R.I. at 555, 381 A.2d at 233; Gaccione v. Gaccione, 112 R.I. 676, 680, 314 A.2d 423, 425 (1974). In light of the evidence admitted at the hearing, the conclusions of the trial justice are not clearly erroneous, and we can perceive no abuse of discretion in letting the consent judgment stand.
The Giorgios also fault the trial justice's conclusions because, they contend, he relied on their former attorney's testimony, which was improperly admitted in breach of the attorney-client privilege. The attorney-client privilege protects from disclosure only the confidenial communications between a client and his or her attorney. See State v. Driscoll, 116 R.I. 749, 757, 360 A.2d 857, 861 (1976); Williams v. Rhode Island Hospital Trust Co., 88 R.I. 23, 47-48, 143 A.2d 324, 337-38 (1958). Hence, counsel "may testify to anything which is not the subject of an express disclosure" without violating this privilege. 8 Wigmore, Evidence § 2306 at 591 (McNaughton rev. 1961). After carefully reviewing the hearing transcript, we find no breach of the attorney-client privilege in the instant case.
One can glean from our previous description of his testimony that the Giorgios' former attorney was permitted to answer questions relating generally to his observations of his former clients' demeanor, his own assessment of their knowledge about what they were signing, and his recollection of whether they appeared to be under duress in entering into the consent judgment. The admission of such testimony was not error. "` legal adviser may give evidence of a fact which is patent to his senses' of anything which he either sees or even hears, so far as it is otherwise patent." 8 Wigmore, Evidence § 2306 at 591. See People v. Bolden, 99 Cal. App.3d 375, 160 Cal. Rptr. 268 (1979) (attorney may give opinion regarding client's mental competency based upon observations of client without violating attorney-client privilege); State v. Manning, 162 Conn. 112, 291 A.2d 750 (1971) (attorney may testify generally about whether particular conversations with client took place). See also Farr v. United States, 314 F. Supp. 1125 (W.D.Mo. 1970), adopted, 436 F.2d 975 (8th Cir.), cert. denied, 402 U.S. 947, 91 S.Ct. 1639, 29 L.Ed.2d 116 (1971) (attorney-client privilege does not extend to advice given to petitioner who claimed that he had not been informed of certain matters prior to executing waivers of indictments and that guilty pleas were not understandingly made).
Moreover, the trial justice precluded disclosure of any confidential communications relating to the instructions the Giorgios had given their former attorney in settling the case. Finally, it should be noted that the attorney's testimony concerning the advice he had given the Giorgios before they signed the consent judgment and his explanation that Mr. Giorgio told him to settle the case notwithstanding the consequent waiver of their affirmative defenses to the action were elicited on cross-examination by the Giorgios' current counsel after they had expressly waived their attorney-client privilege.
We turn now to the Giorgios' remaining challenge of the lower court's ruling that the consent judgment is void and should be vacated pursuant to Rule 60(b)(4). This contention is premised on the view that the public policy of this state prohibiting usurious contracts would be vitiated if this judgment, allegedly predicated upon a usurious loan, were permitted to stand. Essentially, the Giorgios would have this court declare that, as a matter of law, a litigant may never waive the defense of usury. We decline to adopt such a sweeping rule.
The General Assembly in G.L. 1956 (1969 Reenactment) § 6-26-2, as amended by *732 P.L. 1981, ch. 173, § 2, has prescribed the maximum rate of interest chargeable by any person, partnership, association, or corporation when lending money. Any contract in which the yearly interest rate exceeds the maximum permissible rate set by the Legislature is expressly declared void by § 6-26-4. This statute not only affords borrowers relief from the obligations of usurious agreements but also entitles them to recover any payments made of either principal or interest. In Nazarian v. Lincoln Finance Corp., 77 R.I. 497, 78 A.2d 7 (1951), we had occasion to interpret the remedial provisions of the precursor of our current usury statute, G.L. 1938, ch. 485, § 4, which granted borrowers similar relief from usurious contracts. Recognizing the clear legislative intent to provide severe penalties against lenders who violate the usury laws, we concluded that the remedy granted to borrowers was not restricted merely to a defense of actions by lenders on usurious loans, rather it entitled borrowers to bring affirmative actions against such lenders to recover any payments of principal or interest they may have made. It should also be noted that § 6-26-3, as amended by P.L. 1970, ch. 263, § 1, makes a willful and knowing violation of the usury laws a criminal offense punishable by imprisonment for up to five years.
A strong public policy against usurious transactions is clearly manifested by these provisions. Nevertheless, we do not believe that the Legislature intended thereby to preclude a debtor from waiving a defense of usury under all circumstances. We emphasize that the case at bar does not present a situation in which a borrower has executed a release of all claims or defenses of usury either contemporaneous with the signing of a promissory note or in exchange for additional advances of funds. The coercive nature of such situations, in light of the pressing financial needs of the borrower, has persuaded many courts to hold such releases invalid as contravening state usury statutes. See cases collected in annot. 99 A.L.R. 600 (1935).
In our opinion, however, waiver of a usury defense should be permitted when it is freely and knowingly made after reasoned reflection for the legitimate purpose of avoiding or settling litigation. See Shoenfelt v. Donna Belle Loan & Investment Co., 172 Okl. 346, 348, 45 P.2d 507, 509-10 (1935); see also Siegal v. Lechler, 130 Colo. 338, 342-43, 275 P.2d 949, 951 (1954); Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla. 1971). The instant case falls within this narrow category of cases in which a debtor's release of a usury claim is not merely a subterfuge to evade the usury statutes. The Giorgios concede that the note in question is not usurious on its face. Indeed, the facts surrounding its execution, which facts might support their claim of usury, are hotly disputed by the parties. Furthermore, having rejected the Giorgios' claim of duress, it is reasonable to infer that the trial justice gave great weight to the testimony of the one witness uninvolved in the litigation who stated that the motivation for the Giorgios' decision to consent to judgment was their desire to avoid the adverse publicity they believed would accompany such litigation. For these reasons, we think the Giorgios should be bound by their decision to release any potential defense of usury.
The defendants' appeal is denied and dismissed, the order denying the motion to vacate judgment is affirmed, and the case is remanded to the Superior Court.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 98-3210NI
_____________
United States of America, *
*
Appellee, * On Appeal from the United
* States District Court
v. * for the Northern District
* of Iowa.
Arthur William Otters, *
*
Appellant. *
___________
Submitted: November 16, 1999
Filed: December 14, 1999
___________
Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BEAM, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Iowa police officer Robert Conrad stopped Arthur Otters for driving with expired
license plates, and following a consensual search, Conrad and another officer
discovered marijuana, methamphetamine, and drug paraphernalia. Conrad arrested
Otters, and after he made self-incriminating statements involving drug-trafficking
activities, Otters was charged with conspiring to distribute and possess with intent to
distribute 100 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846. Otters moved to suppress statements made to law
enforcement officers after the search of his car, arguing that the statements were made
involuntarily. Following a suppression hearing, the District Court1 denied the motion.
Otters then entered a conditional plea of guilty, reserving his right to appeal the denial
of his motion to suppress. Otters now appeals the denial, contending that he made
incriminating statements only after law enforcement officers promised him no charges
would be filed if he cooperated with them, and that the promise rendered his
subsequent statements involuntary. We affirm.
We review de novo the issue whether a confession was voluntary, but review for
clear error the district court’s factual determinations underlying the decision. See
United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995). The test for determining
the voluntariness of a confession is “whether the confession was extracted by threats,
violence, or direct or implied promises, such that the defendant’s ‘will [was] overborne
and his capacity for self-determination critically impaired.&” See id. (quoted case
omitted).
At the suppression hearing, Conrad testified that he read Otters his Miranda2
rights, and told him that if he cooperated with law enforcement officers, no state
charges associated with the traffic stop would be filed. According to Conrad, he
indicated clearly that the promise of leniency encompassed only the state charges.
Otters indicated he would cooperate, and Special Agent Sean McCullough of the Iowa
Division of Narcotics Enforcement then interviewed Otters. It was during that
interview that Otters made the incriminating statements. McCullough testified that
during a subsequent meeting between McCullough and Otters, they discussed a plea
agreement, which provided that Otters would plead guilty to a federal conspiracy drug
1
The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendation of the
Honorable John A. Jarvey, Chief United States Magistrate Judge for the Northern
District of Iowa.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
charge. After reading the plea agreement, Otters initialed each paragraph and signed
the agreement. Otters later declined to enter the guilty plea, and a federal grand jury
charged him with the violation underlying this appeal. Otters testified that he had
agreed to cooperate with the officers because he understood no state or federal charges
would be filed, and that the officers told him he would “probably walk free” if he
helped them.
Following the hearing, the Magistrate Judge recommended denying the motion
to suppress, rejecting Otters’s claim that his statements were made involuntarily. In
assessing the voluntariness of the statements, the Magistrate Judge found that Conrad
had promised only that state charges would not be filed, that the agreement required
Otters to cooperate with police in exchange for dismissal of charges arising from the
traffic stop only, that Conrad had read Otters his Miranda rights, and that Otters had
understood the warnings and agreed to talk with police. The District Court adopted the
Magistrate Judge’s report and denied the motion to suppress.
Otters conceded McCullough did not have the authority to bind the federal
government, and no evidence showed Conrad had such authority. See Hendrix v.
Norris, 81 F.3d 805, 807 (8th Cir. 1996); United States v. Fuzer, 18 F.3d 517, 520-21
(7th Cir. 1994); United States v. Roberson, 872 F.2d 597, 611 (5th Cir.), cert. denied,
493 U.S. 861 (1989); United States v. Kettering, 861 F.2d 675, 678 (11th Cir.1988).
On the basis of Conrad's and McCullough’s testimony, which the District Court
believed, see United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993), we
conclude the Court did not err in denying the motion to suppress. The promise of
leniency--not to file charges associated with the traffic stop--was not enough by itself
to make Otters’s statements involuntary. See Kilgore, 58 F.3d at 353 (promise of
leniency does not in itself make statement involuntary); see also United States v.
Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996) (fact that Miranda warnings were given
“weighs in favor of a voluntariness finding”); cf. United States v. Rutledge, 900 F.2d
-3-
1127, 1127-28, 1131 (7th Cir.) (after defendant was arrested for selling “modest”
amount of drugs, he waived Miranda rights and confessed because police told him that
“all cooperation is helpful”; confession was voluntary), cert. denied, 498 U.S. 875
(1990). No other facts in the record regarding Otters’s personal characteristics and
history or the conduct of the police officers would support a finding that his will was
overborne.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-
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176 F.3d 492
U.S.v.Cooper*
NO. 98-2451
United States Court of Appeals,Eleventh Circuit.
March 04, 1999
1
Appeal From: N.D.Fla. , No.97-00068-3-CR-1-RV
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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917 N.E.2d 1231 (2009)
In re Marriage of Stephanie REEDER, Appellant-Petitioner,
v.
John REEDER, Respondent,
Coots Henke & Wheeler, Appellees.
No. 29A02-0902-CV-142.
Court of Appeals of Indiana.
December 9, 2009.
*1232 Jon R. Pactor, Indianapolis, IN, Attorney for Appellant.
E. Davis Coots, James K. Wheeler, Brandi A. Gibson, Carmel, IN, Attorneys for Appellees.
OPINION
HOFFMAN, Senior Judge.
Petitioner-Appellant Stephanie Reeder appeals the trial court's award of attorney fees to the law firm of Appellee Coots, Henke, & Wheeler ("the Coots firm") in a dissolution action involving Respondent-Appellee John Reeder. We affirm.
Stephanie raises three issues for our review, which we consolidate and restate as:
I. Whether the trial court erred in ordering Stephanie to pay a particular amount to the Coots firm.
II. Whether the trial court erroneously deprived Stephanie of a jury trial.
In 2000, Stephanie filed a petition for dissolution of her marriage to John. In one of the numerous hearings on the petition, Stephanie stated that she owed approximately $245,000.00 in attorney fees and expenses to the Coots firm; and she requested that John be ordered to pay the fees and expenses. In support of her request, Stephanie presented an affidavit summarizing the claim for expenses and an attachment setting forth the details of the claim.
On November 21, 2007, the trial court issued an order acknowledging the previous dissolution of Stephanie and John's marriage and determining issues involving property settlement, child custody, parenting time, support, and payment of attorney fees.[1] Among other things, the trial court determined that John should pay Stephanie $1,269,234.00 as part of the marital distribution. The trial court further determined that Stephanie should pay the attorney fees and expenses owed by her to the Coots firm. Specifically, the trial court stated:
a. $200,000.00 shall be paid to [the Coots firm] within 30 days of the date of this Order. All attorney fees and expenses shall be deducted and the remainder, if any, shall be given to Stephanie.
*1233 b. $15,000 per month shall be paid commencing on February 1, 2008 and shall be paid on the 1st of each succeeding month until December 31, 2011 when all remaining payments and interest shall be paid in a lump payment.
c. Such monthly payments shall first be paid to [the Coots firm] until all attorney fees and expenses have been deducted. Upon satisfaction of all of Stephanie's attorney fees and expenses, such law firm shall notify John and John shall make such monthly payments directly to Stephanie or her designee.
d. Interest shall accrue on any unpaid balance in the amount of 8% per year.
(Finding of Fact No. 84; Appellant's App. at 53-54). The order also entered judgment in favor of the Coots firm. Id. at 58.
Stephanie and John filed separate motions to correct error with regard to the trial court's November 21, 2006 order. In Stephanie's motion, filed by an attorney not affiliated with the Coots firm, she questioned the propriety of requiring all of the initial payments from John to be made to the Coots firm. She stated that although she agreed that the Coots firm should be paid, she needed money for living expenses. (Appellant's App. at 61-62).
On December 28, 2007, the Coots firm filed its "Notice of Intent to Hold Lien for Attorney Fees and Motion to Assert Attorney's Lien." (Appellant's App. at 72). Thereafter, Stephanie and John submitted an "Amended Decree of Marriage with Settlement Agreement," which was approved by the trial court on March 10, 2008. The Coots firm responded by filing a motion to correct error and for disbursal of funds, alleging, among other things, that the judgment in favor of the Coots firm and Finding 84 of the November 21, 2006 order should be reinstated. (Appellant's App. at 94-95).
A hearing was held on the Coots firm's motion on December 15, 2008, and Stephanie was represented by counsel at this hearing. On December 15, 2008, the trial court stated in a CCS entry that "concerning [Stephanie's] request to now litigate the reasonableness of attorney fees that [Stephanie] presented such attorney fees as an exhibit at trial showing that such fees were proper and requested the Court to affirmatively assess such fees against [John]." (Appellant's App. at 129). In the entry, the Court further stated that Stephanie, "when she had new counsel, further failed to challenge the amount of such fees in her [motion to correct error] filed on December 21, 2007 and in fact, stated in such pleading that she `believes her attorney should be paid.'" Id. In a subsequent order, the trial court found that "the amount of [the Coots firm's] fees for legal services, as detailed in [Stephanie's hearing exhibit], is reasonable based on the factors set forth in Rule 1.5(a) of the Indiana Rules of Professional Conduct." (Appellant's App. at 32). The trial court also "affirmed and reinstated" Finding 84 of the November 21, 2007 order. (Appellant's App. at 33).
I.
Stephanie argues that the trial court failed to hold an evidentiary hearing on the reasonableness of the fees that the Coots firm was owed and attempting to collect. A determination of attorney fees "in family law matters is within the sound discretion of the trial court and will be reversed upon a showing of a clear abuse *1234 of that discretion." Bean v. Bean, 902 N.E.2d 256, 266 (Ind.Ct.App.2009).
Stephanie cites numerous cases that discuss the determination of attorney fee awards. For example, she cites Stepp v. Duffy, 654 N.E.2d 767, 775 (Ind.Ct.App. 1995), trans. denied, for the proposition that when the "amount of the fee is not inconsequential, there must be objective evidence of the nature of the legal services and the reasonableness of the fee." She notes that we have held as a general rule that "the reasonableness of the attorney fee is a matter resolved in an evidentiary hearing." Bethlehem Steel Corp. v. Sercon Corp., 654 N.E.2d 1163, 1169 (Ind.Ct.App. 1995), trans denied.
We understand the wisdom of the general rule, and we hold that the goal of the rulethe determination of a reasonable attorney fee awardis achieved in this case. First, and most importantly, Stephanie made the original claim that the attorney fees claimed by the Coots firm were reasonable, albeit in an effort to have John pay the fees. We cannot fail to see the irony of her present position that she was requesting that John pay an unreasonable amount of attorney fees. Second, the fee award was discussed in a telephone hearing before the evidentiary hearing on the Coots firm's motion to correct error. Third, the attorney fees seem to have been discussed in the evidentiary hearing. Finally, the trial court specifically determined that the fee request was reasonable under the factors set forth in Rule 1.5(a) of the Indiana Rules of Professional Conduct.[2]
We cannot say that the trial court, which is deemed an expert on the question of the propriety of fees and which may judicially know what constitutes a reasonable fee award, abused its discretion in determining that Stephanie made a request that John pay reasonable attorney fees. See Canaday v. Canaday, 467 N.E.2d 783 (Ind. Ct.App.1984) (holding that the trial court may make a determination as an expert and upon judicial knowledge). Furthermore, given the facts of this case, we cannot conclude that a separate hearing on the issue of reasonableness was required.
II.
Stephanie further claims that she was denied a constitutional right to a jury trial regarding the contract she had with the Coots firm. She cites Article I, Section 20 of the Indiana Constitution, which state that in "all civil cases, the right of trial by jury shall remain inviolate." She reasons that if the Coots firm had filed a lawsuit to collect the fees as a contract matter, "there would be no question that she would have had the right to a jury trial." Appellant's Brief at 19.
Initially, we note that Stephanie has failed to demonstrate to this court that she requested that the trial court hold a jury trial. Indeed, given her admission at the dissolution hearing, such a request would *1235 have been improper. We further note that after Stephanie made the request that John pay the presumably reasonable attorney fees, the Coots firm was given an assignment of a portion of the property award to Stephanie in the dissolution action. Accordingly, the Coots firm was free to take action on the assignment rather than pursue a needless breach of contract action.
Affirmed.
ROBB, J., and VAIDIK, J., concur.
NOTES
[1] The trial court found "that on January 30, 2006, this Court ordered that this cause be bifurcated ... and the parties' marriage was dissolved." (Finding of Fact No. 5; Appellant's App. at 39).
[2] These factors are: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship to the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Ind. Professional Rule 1.5(a).
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309 F.Supp. 671 (1970)
Pecola Annette WRIGHT et al.
v.
COUNTY SCHOOL BOARD OF GREENSVILLE COUNTY, VIRGINIA et al.
Civ. A. No. 4263.
United States District Court, E. D. Virginia, Richmond Division.
March 2, 1970.
*672 S. W. Tucker, Henry L. Marsh, III, Richmond, Va., Jack Greenberg, James M. Nabrit, III, New York City, for plaintiffs.
Frederick T. Gray, Richmond, Va., H. Benjamin Vincent, Emporia, Va., for defendants.
MEMORANDUM
MERHIGE, District Judge.
The plaintiffs in this action filed a supplemental complaint on August 1, 1969, alleging that the added defendants, the City Council and the School Board of the City of Emporia, had taken steps to establish a city school system independent of the Greensville County system, then under a desegregation order in this suit. Emporia, a city of the second class since 1967, is surrounded by Greensville County. Through the school year 1968-69 public school pupils resident in Emporia had attended schools operated by Greensville County; the city had been reimbursing the county for this service under a contract of April 10, 1968.
On August 8, 1969, the added defendants were temporarily enjoined by this Court from any steps which would impede the implementation of the outstanding desegregation order. Subsequently the Emporia officials answered, denying the allegation that the plan for separation would frustrate the efforts of the Greensville County School Board to implement the plan embraced by the Court's order. The matter was then continued *673 until December 18, 1969, for a hearing on whether the injunction should be made permanent.
The original action seeking relief from alleged racial discrimination in the operation of the Greensville County School System, was filed in March of 1965. Emporia was not a city under Virginia law until July 31, 1967; until that time the county was alone responsible for the public education of those within its borders. Under the contract of April 10, 1968, the county continued this service in exchange for the payment of 34.26% of the cost of the system.
On June 21, 1968, the plaintiffs moved for additional relief. Up to that point the county-administered system had operated under a free-choice plan which, plaintiffs asserted, had not achieved constitutional compliance under Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968). The 1967-68 enrollment figures show the racial distribution then prevailing:
School Students Faculty
W N W N
Greensville County High 719 50 39½ 1
Emporia Elementary 857 46 34½ 2
Wyatt High 0 809 4½ 32½
Moton Elementary 0 552 0 22½
Zion Elementary 0 255 1 12½
Belfield Elementary 0 419 3 14
Greensville County Training 0 439 0 16
The two schools then attended by all the white students were and still are in the city of Emporia, as is the training school; others are in the county.
The county proposed the extension of the free choice plan for another year while a zoning or pairing plan was developed. The plaintiffs took exception. The Court ordered the county to file a pupil desegregation plan bringing the system into compliance with Green by January 20, 1969. The county again proposed that the free choice plan be retained with certain changes, principally involving transfers out of a pupil's regular school for special classes and faculty reassignment. As an alternative, if the first proposal were rejected, the county suggested a plan under which the high school population would be divided between the two facilities on the basis of curriculum pursued, academic or vocational. Faculties would be reassigned to achieve at least a 75%-25% ratio in each school. Elementary school desegregation would be achieved by the transfer of individual Negroes to white schools "on the basis of standardized testing of all students."
The plaintiffs suggested the assignment of all students on the basis of grades attained to specific schools; pairing, in other words, the entire system. Elementary teachers were to follow their classes as reassigned, and high school teachers were to be shifted so that the racial balance in the Wyatt School and Greensville County High would be approximately the same.
A hearing was held on June 17, 1969, and this Court stated its findings and indicated its intention to order that the plaintiffs' plan be adopted.
By order of June 25, 1969, this Court rejected the defendants' proposals and ordered the plaintiffs' plan put into effect. *674 Subsequently the plan was modified slightly on defendants' motion; the pupil assignments ordered on July 30, 1969, were as follows:
School Grades
Greensville County High 10, 11, 12
Junior High (Wyatt) 8, 9
Zion Elementary 7
Belfield Elementary 5, 6
Moton Elementary 4, 5
Emporia Elementary 1, 2, 3
Greensville County Training Special Education
On July 9, 1969, the city council met especially to formulate plans for a city school system. On July 10th the mayor sought the cooperation of county officials in selling or leasing school facilities located in Emporia. On July 14th the council instructed the city school board to take steps to create a city school division. On July 23rd the council requested the state board of education to authorize the establishment of such a division, which request has been tabled by the State Board "in light of matters pending in the federal court," defendants' Ex. E-1. The Emporia school board in the meantime advised the county officials that the contract would no longer be honored and that city pupils would not attend the county system in the forthcoming school year. A notice of July 31, 1969, published by the city school board, required that school age children resident in Emporia be registered and invited applications from nonresidents on a tuition basis. The injunction of August 8, 1969, however, resulted in a continuation of city pupils attending the county system for the present school year.
At a hearing on December 18, 1969, the city took the position that the contract was void under state law (see defendants' Ex. E-J); this question is the subject of pending litigation brought by the city on October 1, 1969, in the state courts. The evidence shows that the city on September 30, 1969, notified the county of its view that the contract is invalid and its intention to terminate the contract under its terms, in any case, effective in July, 1971. Payments, however, were continued through the date of the December hearing. Emporia officials also have assured the Court that they have no intention of entertaining applications from nonresidents until so permitted by this Court.
At the hearing the county, unfortunately, took no position.
A resolution of the city school board of December 10, 1969, defendants' Ex. E-F, outlines the city's plan. Elementary levels through grade six would be conducted in the Emporia Elementary School building; grades seven through twelve would be housed in the Greensville County High School. Defendants' Ex. E-G includes budgetary projections for the new system. The city projects enrollment figures for the system at about ten percent above the number of city residents now in the public system "on the expectation that some pupils now attending other schools would return to a city-operated school system," defendants' Ex. E-G, at 1.
The city clearly contemplates a superior quality educational program. It is anticipated that the cost will be such as to require higher tax payments by city residents. A kindergarten program, ungraded primary levels, health services, adult education, and a low pupil-teacher ratio are included in the plan, defendants' Ex. E-G, at 7, 8.
*675 The county has filed, at the Court's request, a statistical breakdown of the students and faculty in the county-administered schools, now in operation under this Court's order of July 30, 1969. The table below shows the current racial makeup of the seven schools:
School Students Faculty
W N W N
Emporia Elementary 283 655 17 18
Grades 1-3 30.1% 69.9%
------------------------------------------------------------
Hicksford (Moton) 238 405 11 13
Grades 4-5 37% 63%
------------------------------------------------------------
Belfield 107 243 7 11
Grade 6 30.6% 69.4%
------------------------------------------------------------
Zion 127 238 7 7
Grade 7 34.8% 65.2%
------------------------------------------------------------
Junior High 215 443 19 21
Grades 8-9 32.6% 67.4%
-------------------------------------------------------------
Senior High 346 424 31 14
Grades 10-12 44.9% 55.1%
-------------------------------------------------------------
Training School 10 63 1 8
13.7% 86.3%
-------------------------------------------------------------
By comparison, the county reported the following racial characteristics for the 1968-69 school year:
School Students Faculty
W N W N
Greensville County High 720 45 39 1
Wyatt H.S. (present Jr. High) 0 829 5 34
Emporia Elementary 771 53 33 3
Moton (present Hicksford) 0 521 5 18
Zion 0 248 1 13
Greensville County Training 0 387 0 17
Belfield 0 427 2 16
The procedural status of the case at present needs clarification. The plaintiffs contend that no one has made application to this Court that its order of June 25, as modified on July 30, be amended. This is the outstanding desegregation order addressed to "the defendants herein, their successors, agents, and employees." They contend that this Court is therefore limited to the inquiry whether the city officials threaten to interfere with the implementation of the order and therefore should be permanently enjoined.
Some passages in the city officials' briefs support this contention. In their *676 rebuttal brief they state that the city is not seeking any sort of judicial relief excepting that the injunction of August 8, 1969, be lifted. They contend that any change in the existing desegregation order would be "a matter to be resolved by the Court, the plaintiffs and Greensville County, and would not involve the city." [Rebuttal brief of January 23, at 3.] Such a position, however, is inconsistent with that taken by counsel at the December 18th hearing. Issues explored went beyond the question whether the city's initiation of its own system would necessarily clash with the administration of the existing pairing plan; indeed there seems to be no real dispute that this is so. The parties went on to litigate the merits of the city's plan, developing the facts in detail with the help of an expert educator. Counsel for the city stated that "at the conclusion of the evidence today, we will ask Your Honor to approve the assignment plan for the 1970-71 school year and to dissolve the injunction now, against the city, effective at the end of this school year," Tr., Dec. 18, at 11.
It seems clear that the supplemental complaint sought to join the city officials not so much as successors, in full or in part, to the official powers and interests of the original defendants, but rather as persons who intended to use state powers to interfere with the plaintiffs' enjoyment of their constitutional right to unsegregated public education. Ample precedent exists for authority to grant relief in such a case. Faubus v. United States, 254 F.2d 797 (8th Cir., 1958); Lee v. Macon County Board of Education, 231 F.Supp. 743 (M.D.Ala. 1964). Indeed such orders have issued against private parties, on occasion, even at the instance of state officials, Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957); Brewer v. Hoxie School District No. 46, 238 F.2d 91 (8th Cir. 1956). Plaintiffs did not specifically request then or since that the city officials be joined or substituted as parties defendant pursuant to Fed.Rules Civ.Proc., Rule 25(c), or Rule 25(d), 28 U.S.C.
Nevertheless, this Court has concluded that the plaintiffs' failure to so move was, under the circumstances, excusable and indeed unnecessary. The city defendants, by their actions, have made it clear that, according to state law, they have succeeded to the powers of the county board members over public school students resident in the city. They now desire to exercise these latent powers and have asked this Court to amend its orders to enable them to so do. A word about the Virginia education law aids in understanding this aspect of the case.
When Emporia became a city the duty fell upon it to establish a school board to supervise public education in the city. §§ 22-2, 22-93, 22-97, Va.Code Ann., 1950. State law permits, however, the consolidation of a city with a county to form a single school division, with the approval of the State Board of Education, § 22-30, Va.Code Ann., 1950. In such a case a single school board may be established with the approval of both governmental units. § 22-100.2, Va. Code Ann., 1950; the individual boards would then cease to exist, § 22-100.11, Va.Code Ann., 1950. Alternatively, the two boards might remain in existence and meet jointly to choose a division superintendent, § 22-34, Va.Code Ann., 1950. There is provision as well for the establishment of jointly owned schools, § 22-7, Va.Code Ann., 1950. When a city contracts with a county for the provision of school services, moreover, there is specific provision that the county board shall include representatives of the city, § 22-99, Va.Code Ann., 1950. Therefore, once it became a city, there is no doubt that Emporia succeeded to the state-law powers and duties of actively administering public schools for its residents under one of these statutory schemes. It has not, however, until recently sought to exercise that power. Only after the June order did the city move to assume the powers that it had, by contract, delegated to the county, plaintiffs' exhibit 12.
Under federal practice, an injunction may not issue against and bind all the world. The persons whose conduct *677 is governable by court order are defined by rule:
Every order granting 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. Rules Civ.Proc., Rule 65(d), 28 U.S.C.
This rule fixes the scope of valid orders, and terms in a decree exceeding the rule are of no effect, Swetland v. Curry, 188 F.2d 841 (6th Cir. 1951); Alemite Mfg. Co. v. Staff, 42 F.2d 832 (2d Cir. 1930); Baltz v. The Fair, 178 F.Supp. 691 (N.D. Ill.1959); Chisolm v. Caines, 147 F.Supp. 188 (E.D.S.C.1954). In general, only those acting in concert with, or aiding or abetting, a party can be held in contempt for violating a court order. One whose interest is independent of that of a party and who is not availed of as a mere device for circumventing a decree is not subject to such sanctions, United Pharmacal Corp. v. United States, 306 F.2d 515, 97 A.L.R.2d 485 (1st Cir. 1962). The law exposes to summary punishment only those who have already had their rights adjudicated in court. Consistent with these limitations, a court will only order a public official to perform or refrain from certain acts which are within the powers conferred upon him by law, Bell v. School Board of Powhatan County, 321 F.2d 494 (4th Cir. 1963), and will deny relief when those parties before it are not fully empowered, under state law, to take the action requested, Thaxton v. Vaughan, 321 F.2d 474 (4th Cir. 1963).
Under these precedents one might conclude that, because the city officials were not parties to any of the proceedings in this case prior to the filing of the supplemental complaint, they are therefore not bound by decrees in that litigation. But a line of cases involving public officers has also evolved holding that a decree may bind one who succeeds to the powers exercised by the officer who was a party to the original suit. In Regal Knitwear Co. v. N. L. R. B., 324 U.S. 9, 65 S.Ct. 478, 89 L.Ed. 661 (1945), the Supreme Court recognized that a decree might bind "successors" to a private litigant, at least if they came within the usual "privity" doctrines. Lucy v. Adams, 224 F.Supp. 79 (N.D.Ala.1963), held that the successor to a state university dean of admissions was bound by a decree against his predecessor so long as he had notice of the injunction. In Lankford v. Gelston, 364 F.2d 197, 205 n. 9 (4th Cir. 1966), an injunction against a police official or his successor was expressly endorsed. The injunction of June 25, 1969, as mentioned above, issued against the county officials or their successors. No one contests that the city officers had notice of the decree. The Emporia officials in a very real sense appear now to have succeeded, under state law, to the part of the county officers' powers and thus are amenable to the decree.
It is irrelevant that the city officials hold positions that differ in name from those of the original parties. Substitution in analogous situations has been effectuated under Fed.Rules Civ.Proc. Rule 25(d) 28 U.S.C., when the relevant functions have been moved from one office to another, Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947); Toshio Joji v. Clark, 11 F.R.D. 253 (N.D.Cal.1951); Porter v. American Distilling Co., 71 F.Supp. 483 (S.D.N.Y.1947), cf. Skolnick v. Parsons, 397 F.2d 523 (7th Cir. 1968).
The city might have moved for substitution under Fed.Rules Civ.Proc., Rule 25(d), but its failure to do so is quite excusable. The county officials were under contract to operate the schools, and the question of the validity of that instrument was not raised. Greensville County officials were in possession of the schools whereas the city board was by all indications asserting no control. The county board, when ordered to take certain steps in the exercise of its power *678 over the public school pupils of the city and the county, did not protest its lack of power. It may yet possess power over both city and county residents, at least for the term of the contract. But the city's actions subsequent to the pairing decree, and in particular the pending suit to declare the contract void, cast great doubt on the county's authority under state law. To all appearances the city board, but for and subject to the decree of this Court ordering non-interference, now has the power under state law to administer schools for the city residents. Certainly it must have such power, even if the contract is valid, commencing July 1, 1971.
As a successor in interest to a party to the original decree, it would seem that the city school board now has sufficient standing under Fed.Rules Civ.Proc., Rule 60(b), 28 U.S.C., to move to amend the outstanding decree. Those cases holding such relief to be unavailable to nonparties concern chiefly the applications of persons who did not have an interest in the judgment identical to that of the original party, Mobay Chemical Co. v. Hudson Foam Plastics Corp., 277 F.Supp. 413 (S.D.N.Y.1967); United States v. 140.80 Acres of Land, 32 F.R.D. 11 (E.D.La.1963); United States v. International Boxing Club, 178 F.Supp. 469 (S.D.N.Y.1959). The present standing of the city board members is still problematical because the validity of the contract has not been finally adjudicated. But it is clear that they will enjoy the relevant powers at least in the 1971-1972 school year, and sooner if they succeed in their litigation; this puts them in a position to move to modify the decree.
The Court therefore must proceed to the merits of the city's plan, treating the school board's application, as discussed above, as a motion under Fed.Rules Civ.Proc., Rule 60(b), 28 U.S.C.
The county board has provided data on the composition of the student body of each school as currently operated, broken down by race and by place of residence. The tables below are based upon that information:
Overall System, September 1, 1969
Students by race and residence:
White Negro Total % White % Negro
County: 728 1888 2616 27.8% 72.2%
City: 543 580 1123 48.3% 51.7%
Total 1282 2477 3759 34.1% 65.9%[1]
The establishment of separate systems would plainly cause a substantial shift in the racial balance. The two schools in the city, formerly all-white schools, would have about a 50-50 racial makeup, while the formerly all-Negro schools located in the county which, under the city's plan, would constitute the county system, would overall have about three Negro students to each white. As mentioned before, the city anticipates as well that a number of students would return to a city system from private schools. These may be assumed to be white, and such returnees would accentuate the shift in proportions.
The city contemplates placing grades one through six in the Emporia Elementary School building. Such a school would have 314 Negro students and 270 white; 46.2% white and 53.8% Negro. A city high school incorporating grades seven through twelve would have 252 Negro students and 271 white; this would make for a ratio of 51.8% white to 48.2% Negro pupils.
*679 The impact of separation in the county would likewise be substantial. The distribution of county residents, by grade and race, is as follows:
White Negro
Grades 1-3 167 26.3% 468 73.7%
Grades 4-5 142 31.1% 314 68.9%
Grade 6 57 23.5% 185 76.5%
Grades 7-9 192 27.5% 506 72.5%
Grades 10-12 161 30.6% 365 69.4%
These figures should be compared with the current percentages reported by the county, given in a table above. At each level the proportion of white pupils falls by about four to seven percent; at the high school level the drop is much sharper still.
The motives of the city officials are, of course, mixed. Ever since Emporia became a city consideration has been given to the establishment of a separate city system. A second choice was some form of joint operating arrangement with the county, but this the county would not assent to. Only when served with an "ultimatum" in March of 1968, to the effect that city students would be denied access to county schools unless the city and county came to some agreement, was the contract of April 10, 1968, entered into. Not until June of 1969 was the city advised by counsel that the contract was, in all probability, void under state law. The city then took steps to have the contract declared void and in any event to terminate it as soon as possible.
Emporia's position, reduced to its utmost simplicity, was to the effect that the city leaders had come to the conclusion that the county officials, and in particular the board of supervisors, lacked the inclination to make the court-ordered unitary plan work. The city's evidence was to the effect that increased transportation expenditures would have to be made under the existing plan, and other additional costs would have to be incurred in order to preserve quality in the unitary system. The city's evidence, uncontradicted, was to the effect that the board of supervisors, in their opinion, would not be willing to provide the necessary funds.
While it is unfortunate that the county chose to take no position on the instant issue, the Court recognizes the city's evidence in this regard to be conclusions; and without in any way impugning the sincerity of the respective witnesses' conclusions, this Court is not willing to accept these conclusions as factual simply because they stand uncontradicted. Assuming arguendo, however, that the conclusions aforementioned are indeed valid, then it would appear that the Court ought to be extremely cautious before permitting any steps to be taken which would make the successful operation of the unitary plan even more unlikely.
The Court does find as a fact that the desire of the city leaders, coupled with their obvious leadership ability, is and will be an important facet in the successful operation of any court-ordered plan.
Dr. Tracey, a professor of education at Columbia University, felt that the county budget had not even been increased sufficiently to keep up with inflation in the 1969-1970 year, and that it seemed that certain cutbacks had been made in educational programs, mainly to pay for increased transportation costs. In Dr. Tracey's opinion the city's projected budget, including higher salaries for teachers, a lower pupil-teacher ratio, kindergarten, ungraded primary schooling, added health services, and vocational education, will provide a substantially superior school system. He stated that the smaller city system would not allow a high *680 school of the optimum size, however. Moreover, the division of the existing system would cut off county pupils from exposure to a somewhat more urban society. In his opinion as an educator, given community support for the programs he envisioned, it would be more desirable to apply them throughout the existing system than in the city alone.
While the city has represented to the Court that in the operation of any separate school system they would not seek to hire members of the teaching staff now teaching in the county schools, the Court does find as a fact that many of the system's school teachers live within the geographical boundaries of the city of Emporia. Any separate school system would undoubtedly have some effect on the teaching staffs of the present system.
Dr. Tracey testified that his studies concerning a possible separate system were conducted on the understanding that it was not the intent of the city people to "resegregate" or avoid integration. The Court finds that, in a sense, race was a factor in the city's decision to secede. This Court is satisfied that the city, if permitted, will operate its own system on a unitary basis. But this does not exclude the possibility that the act of division itself might have foreseeable consequences that this Court ought not to permit. Mr. Lankford, chairman of the city school board, stated:
Race, of course, affected the operation of the schools by the county, and I again say, I do not think, or we felt that the county was not capable of putting the monies in and the effort and the leadership into a system that would effectively make a unitary system work * * *, Tr.Dec. 18, at 28.
Mr. Lankford stated as well that city officials wanted a system which would attract residents to Emporia and "hold the people in public school education, rather than drive them into a private school * * *," Tr.Dec. 18, at 28.
Under Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), and under principles derived from Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), federal courts cannot permit delay or modification in plans for the dismantling of dual school systems for the purpose of making the public system more palatable to some residents, in the hopes that their flight to private schools might be abated. The inevitable consequence of the withdrawal of the city from the existing system would be a substantial increase in the proportion of whites in the schools attended by city residents, and a concomitant decrease in the county schools. The county officials, according to testimony which they have permitted to stand unrebutted, do not embrace the court-ordered unitary plan with enthusiasm. If secession occurs now, some 1,888 Negro county residents must look to this system alone for their education, while it may be anticipated that the proportion of whites in county schools may drop as those who can register in private academies. This Court is most concerned about the possible adverse impact of secession on the effort, under Court direction, to provide a unitary system to the entire class of plaintiffs. This is not to say that the division of existing school administration areas, while under desegregation decree, is impermissible. But this Court must withhold approval "if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system," Monroe v. Board of Commissioners, supra, 391 U.S. 459, 88 S.Ct. 1705. As a court of equity charged with the duty of continuing jurisdiction to the end that there is achieved a successful dismantling of a legally imposed dual system, this Court cannot approve the proposed change.
This Court's conclusion is buttressed by that of the district court in Burleson v. County Board of Election Commissioners, 308 F.Supp. 352 (E.D.Ark., Jan. 22, 1970). There, a section of a school district geographically separate from the main portion of the district and populated principally by whites was enjoined from seceding while desegregation was in progress. The Court so ruled not principally *681 because the section's withdrawal was unconstitutionally motivated, although the Court did find that the possibility of a lower Negro population in the schools was "a powerful selling point," Burleson v. County Board of Election Commissioners, supra, 308 F.Supp. 357. Rather, it held that separation was barred where the impact on the remaining students' right to attend fully integrated schools would be substantial, both due to the loss of financial support and the loss of a substantial proportion of white students. This is such a case.
If Emporia desires to operate a quality school system for city students, it may still be able to do so if it presents a plan not having such an impact upon the rest of the area now under order. The contractual arrangement is ended, or soon will be. Emporia may be able to arrive at a system of joint schools, within Virginia law, giving the city more control over the education its pupils receive. Perhaps, too, a separate system might be devised which does not so prejudice the prospects for unitary schools for county as well as city residents. This Court is not without the power to modify the outstanding decree, for good cause shown, if its prospective application seems inequitable.
NOTES
[1] Figures secured from Greensville County school system; total students include 11 white and 9 Negro, who apparently reside outside both county and city.
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MARK A. SPRUANCE, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee.
No. 407, 2009.
Supreme Court of Delaware.
Submitted: September 24, 2009.
Decided: October 13, 2009.
Before HOLLAND, BERGER and JACOBS, Justices
ORDER
Carolyn Berger, Justice
This 13th day of October 2009, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Mark A. Spruance, filed an appeal from the Superior Court's June 26, 2009 order denying his sixth motion for postconviction relief pursuant to Superior Court Criminal Rule 61. Spruance also appeals from the Superior Court's August 13, 2009 order denying his motion for transcripts at State expense. The plaintiff-appellee, the State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit.[1] We agree and affirm.
(2) In December 1992, Spruance was found guilty by a Superior Court jury of Attempted Robbery in the First Degree and Unlawful Sexual Intercourse in the First Degree. He was sentenced to a total of 28 years of Level V incarceration, to be followed by probation. This Court affirmed Spruance's convictions on direct appeal.[2]
(3) In this appeal, Spruance claims that there was insufficient evidence presented at trial to support his convictions and that the jury ignored evidence of his innocence. Spruance further claims that the Superior Court abused its discretion when it denied his motion for transcripts at State expense.
(4) When considering a postconviction motion under Rule 61, the Superior Court must first apply the procedural requirements of the Rule before reaching the merits of the petitioner's claims.[3] Here, Spruance's motion is clearly time-barred.[4] Moreover, the motion is procedurally barred because the evidentiary claim asserted therein has been asserted in previous postconviction motions[5] and Spruance has failed to demonstrate that the procedural bar should not be applied in the interest of justice.[6] We, therefore, conclude that the Superior Court did not abuse its discretion when it denied Spruance's postconviction motion and when it denied his motion for transcripts at State expense.
(5) It is manifest on the face of the opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there is no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
NOTES
[1] Supr. Ct. R. 25(a).
[2] Spruance v. State, Del. Supr., No. 56, 1993, Moore, J. (Mar. 25, 1994).
[3] Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
[4] Super. Ct. Crim. R. 61(i)(1).
[5] Super. Ct. Crim. R. 61(i)(4).
[6] Super. Ct. Crim. R. 61(i)(4) and (5).
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9 So.3d 858 (2009)
Michael BERCIER
v.
Monique BERCIER.
No. 2009-CC-1166.
Supreme Court of Louisiana.
May 29, 2009.
Stay denied. Writ denied.
GUIDRY, J., would grant.
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77 S.W.3d 405 (2002)
Edmond Hermon ASHORN, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-01-00904-CR.
Court of Appeals of Texas, Houston (1st Dist.).
May 2, 2002.
*406 Floyd H. Christian, Angleton, Jim Tatum, Houston, for Appellant.
Jeri Yenne, Criminal District Attorney, Angleton, for Appellee.
Panel consists of Justices MIRABAL, NUCHIA, and FRANK C. PRICE.[*]
*407 OPINION ON MOTION FOR REHEARING
SAM NUCHIA, Justice.
We issued an opinion dismissing this appeal for lack of jurisdiction on October 25, 2001. On November 7, 2001, appellant's counsel filed a Motion for Reconsideration and for Out Of Time Appeal that we will consider as a motion for rehearing. The motion for rehearing is denied. However, we withdraw our opinion of October 25, 2001, and issue the following opinion in its place.
Background Facts
Appellant was convicted by a jury of possession with intent to deliver a controlled substance, namely, methamphetamine, in an amount of at least four grams but less than 200 grams. Punishment was assessed by the court at confinement for eight years. Appellant was sentenced on August 6, 2001. No motion for new trial was filed. The deadline for filing notice of appeal was therefore September 5, 2001, 30 days after sentencing. See TEX.R.APP. P. 26.2(a)(1). Written notice of appeal was not filed until September 26, 2001, 21 days after the deadline.
In our original opinion, we dismissed this appeal because no timely written notice of appeal was filed. See Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); TEX.R.APP. P. 26.2(a).
Oral Notice of Appeal
Appellant first argues that he gave oral notice of appeal when he was sentenced. According to the trial court's docket sheet, this is correct. Nevertheless, timely written notice of appeal must be filed in order to confer this Court with jurisdiction. "[A]n oral notice of appeal, no matter how many times it is memorialized in documents signed by clerks or trial courts, is still an oral notice of appeal." Brunswick v. State, 931 S.W.2d 9, 11 (Tex. App.-Houston [1st Dist.] 1996, no pet.); TEX.R.APP. P. 25.2(b)(1). We hold appellant's oral notice of appeal was insufficient to vest this Court with jurisdiction.
Request for the Reporter's Record
Appellant next argues that, on June 28, 2001, before his sentencing, he requested that the court reporter prepare a record, and that this request satisfied the requirement of Rule 25.2(b)(2) of the Rules of Appellate Procedure that the notice is sufficient if it "shows the party's desire to appeal."[1] However, no such document appears in the record. Therefore, this argument is unsupported and will not be considered. Janecka v. State, 937 S.W.2d 456, 476 (Tex.Crim.App.1996).
Posting of Bond
Appellant also argues that he posted an appeal bond, and that this was sufficient to constitute written notice of appeal.
The bond, dated August 6, 2001, and filed with the District Clerk 10 days later, is a cash bond with the words "Appeals bond" handwritten near the top, the substance of which states:
That I, EDMOND HERMAN ASHORN, as principal, am bound unto the *408 State of Texas, in the penal sum of six thousand dollars ($6000.00) Dollars and, in addition thereto, I am bound for the payment of all fees and expenses that may be incurred by any peace officer in re-arresting me, the said principal, in the event any of the hereinafter stated conditions of this bond are violated, for the payment of which sum or sums well and truly to be made. I do bind myself, my heirs, executors and administrators, jointly and severally.
THE CONDITION OF THIS BOND IS THAT THE DEFENDANT HAS BEEN CHARGED WITH A Fel[ony] offense and to secure his release from custody is entering into this obligation binding him to appear before the appropriate Court of Brazoria County, Texas, instanter.
NOW THEREFORE, IF THE SAID PRINCIPAL SHALL WELL AND TRULY MAKE HIS PERSONAL APPEARANCE BEFORE SAID COURT INSTANTER AS well as before any other court to which the same may be transferred and for any and all subsequent proceedings that may be had relative to said charge in the course of criminal actions based on said charge, and there remain from day to day and term to term of said courts, until discharged by due course of law, then and there to answer said accusation against him, this obligation shall become void, otherwise to remain in full force and effect.
The filing of an appeal bond in a criminal case, in and of itself, does not communicate a desire to appeal.
Appellant cites Miles v. State, 842 S.W.2d 278, 279 n. 1 (Tex.Crim.App.1989). In that case, the State filed a petition for discretionary review from an interlocutory order of the Seventh Court of Appeals granting an extension of time to file notice of appeal. The petition was refused because the interlocutory order did not finally dispose of the case. In a footnote, the court stated that the appeal bond was sufficient to constitute a notice of appeal under former Rule 40(b)(1) of the 1986 Texas Rules of Appellate Procedure. This was mere dicta because the court dismissed the petition for discretionary review without reaching the merits of the State's argument. Also, we are not bound by the contents of footnotes, as the Court of Criminal Appeals itself has declared that its footnotes are dicta. Young v. State, 826 S.W.2d 141, 144-45 n. 5 (Tex.Crim. App.1991); see also Cooper v. State, 917 S.W.2d 474, 476 n. 2 (Tex.App.-Fort Worth 1996, pet. ref'd) (noting that, although Miles appears at 842 S.W.2d 278, Texas Court of Criminal Appeals' Clerk verified this Opinion on Appellant's Motion for Rehearing was designated by court as "Do Not Publish").[2]
The Court of Criminal Appeals also found an appeal bond to be an adequate substitute for notice of appeal under former article 44.08[3] of the Texas Code of Criminal Procedure because the bond "adequately expressed his desire to appeal." Sklar v. State, 764 S.W.2d 778, 781 (Tex. Crim.App.1987). Even an oral notice of appeal was sufficient under the former *409 article, however. There was no requirement of a written notice of appeal that showed a desire to appeal. Thus, Sklar, like Miles, is inapplicable to this appeal.
We are aware of no opinion from the Court of Criminal Appeals holding that an appeal bond satisfies the requirements of present Rule 25.2(a), (b)(1) and (2). We hold the bond does not comply with the requirements of Rule 25.2 of the Texas Rules of Appellate Procedure because it is not a written notice that shows the party's desire to appeal. TEX.R.APP. P. 25.2(a), (b)(1), (2).[4]
Equitable Argument
Appellant further argues that he "has made a bona fide effort to invoke the Appellate Court's jurisdiction sufficient to prevent dismissal for want of prosecution," citing Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex.1994). In Linwood, the Texas Supreme Court followed its opinion in Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991), and held that the court of appeals had jurisdiction over the appeal even though the cost bond was filed after the 30 day time limit. Linwood, 885 S.W.2d at 103. The Linwood case was cited to the Court of Criminal Appeals by the defendant in Olivo, 918 S.W.2d at 521. The court rejected the argument and held that the failure to file a timely motion for extension of time to file notice of appeal deprived the court of appeals of jurisdiction. Id., at 526. The Texas Supreme Court acknowledged in Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997), that its "more liberal approach" to appellate jurisdiction "differed significantly" from the approach taken by the Court of Criminal Appeals. We also note that a criminal appellant, unlike his civil counterpart, may pursue an out-of-time appeal by filing a petition for writ of habeas corpus. Rivera v. State, 940 S.W.2d 148, 149 (Tex.App.-San Antonio 1996, no pet.); TEX.CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp.2002).
Out-of-Time Appeal
Finally, appellant contends that he is entitled to an out-of-time appeal. The appropriate vehicle for seeking an out-of-time appeal from a final felony conviction is by writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp.2002). This Court has no original habeas corpus jurisdiction in criminal cases. See Board of Pardons and Paroles ex rel. Keene v. Court of Appeals for the Eighth District, 910 S.W.2d 481, 483 (Tex.Crim.App.1995).
Conclusion
Appellate jurisdiction is invoked by giving notice of appeal. The notice of appeal must be timely and must be in writing to invoke a court of appeals' jurisdiction. State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App.2000). Because appellant did not file a timely written notice of appeal, the appeal is dismissed for lack of jurisdiction.
MARGARET GARNER MIRABAL, Justice, dissenting.
I dissent.
The record shows that appellant complied with Rule 25.2 by filing a timely notice of appeal. See TEX.R.APP. P. 25.2. Accordingly, we have jurisdiction of this appeal.
The Law
Rule 25.2(a) and (b) reads, in relevant part:
*410 (a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal....
(b) Form and Sufficiency of Notice.
(1) Notice must be given in writing and filed with the trial court clerk.
(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order,
....
TEX.R.APP. P. 25.2(a)-(b)(2) (emphasis added).
In Miles v. State, the Texas Court of Criminal Appeals specifically stated that a written appeal bond filed with the trial court is "sufficient to constitute a notice of appeal" under the Rules. 842 S.W.2d 278, 279 n. 1 (Tex.Crim.App.1989).
The Facts
After a jury trial, appellant was sentenced on August 6, 2001.[1]On the same day, appellant gave oral notice of appeal, the sum of $6,000 was paid to the Brazoria County Sheriff's Department on appellant's behalf, and appellant signed a bail bond document with "Appeals Bond" hand-printed in bold letters at the top. The appeal bond is file-stamped showing it was filed with the district clerk of Brazoria County on August 16, 2001, well before the September 5, 2001 deadline for filing notice of appeal.
CONCLUSION
As a matter of law, when a party timely files a written document with the trial court clerk that shows the party's desire to appeal a criminal judgment entered after a trial on a plea of not guilty, the appeal is duly perfected.[2] TEX.R.APP. P. 25.2(a), (b). The appeal bond filed in this case duly perfected the appeal of the judgment. See Miles, 842 S.W.2d at 279 n. 1. Accordingly, we should grant appellant's motion for rehearing, withdraw our opinion and judgment dated October 25, 2001 that dismissed appellant's appeal for lack of jurisdiction, and reinstate the appeal on our docket.
NOTES
[*] The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[1] Rule 25.2(a) and (b)(1) and (2) read, in pertinent part, as follows:
(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal....
(b) Form and Sufficiency of Notice.
(1) Notice must be given in writing and filed with the trial court clerk.
(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order,....
TEX.R.APP. P. 25.2(a), (b)(1), (2).
[2] This Court relied on Miles in Buchanan v. State, 881 S.W.2d 376, 378 (Tex.App.-Houston [1st Dist.] 1994), dism'd in part, remanded in part, 911 S.W.2d 11 (Tex.Crim.App. 1995), for the proposition that there could be substantial compliance with former Rule 40(b)(1). The issue in that case was the sufficiency of a motion for a statement of facts (now the reporter's record) to substitute for a written notice of appeal, not the sufficiency of a bond to so substitute.
[3] Repealed by Act of May 27, 1985, 69th Leg., R.S., ch. 685, §§ 1-4, 1985 Tex. Gen. Laws 2472, 2472-73.
[4] We do not believe the law is that no written notice of appeal need be filed in a case in which an appeal bond is filed before the deadline for filing notice of appeal. That would be the result of ruling as the dissent urges us to.
[1] This case does not involve the requirements of a notice of appeal filed after a judgment is entered on a plea of guilty pursuant to a plea bargain. Appellant pled not guilty and the case was tried to a jury.
[2] Respectfully, in footnote 4 the majority opinion misstates the effect of the law. It is not true that "no written notice of appeal need be filed in a case in which an appeal bond is filed before the deadline for filing notice of appeal." For example, in a plea-bargained felony case, when a judgment is rendered on a plea of guilty or nolo contendere in accordance with the plea agreement, a notice of appeal complying with Rule 25.2(b)(3) must be filed to confer jurisdiction on the appellate court; an appeal bond alone would not perfect the appeal in such a case. I stress again that this is not a plea bargain case. Judgment was entered after a jury trial. Appellant orally told the trial judge he wanted to appeal, he followed through immediately with the filing of an "appeal bond," and he proceeded with the appeal represented by appellate counsel. Rule 25.2(b)(2) controls, and we have jurisdiction.
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51 F.3d 267
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.Reginold POUNCY, Plaintiff-Appellant,v.FIRST VIRGINIA MORTGAGE COMPANY; P. Thomas May, Jr.; BillGeilher, Jr.; Justin C. O'Donnell; William S. Cornish;Darrell F. Armstrong; James P. Balchinski; Richard F.Bowman; Dan Smith; Harry Allen; Susan W. Skiles; MarkCopenhaver; Richard Lower; Thomas P. Jennings, Defendants-Appellees.
No. 94-2086.
United States Court of Appeals, Fourth Circuit.
Submitted: March 15, 1995.Decided: April 3, 1995.
Reginold Pouncy, Appellant Pro Se. Kathleen Thorne Barlow, Falls Church, VA, for Appellees.
Before RUSSELL and WILLIAMS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Reginold Pouncy appeals the district court's order dismissing his pro se complaint brought against the First Virginia Mortgage Corporation (First Virginia), First Virginia Bank (FVB), and several officers and employees thereof, charging Defendants with violations of the Constitution, the Uniform Commercial Code, various federal statutes, and Virginia contract and tort law. Pouncy also appeals the district court's denial of his Motion for Judgment of Default, at Law; for Lack of Answer, and his Motion for Common Law Hearing on Defendants' Motion to Dismiss. Finding no colorable legal basis to any of Pouncy's claims, we affirm.
2
On May 11, 1973, Pouncy obtained a first deed of trust loan for $20,750 from First Virginia, securing a piece of real property located in Manassas, Virginia. For twenty years, Pouncy made monthly payments on the loan. In December of 1993, Pouncy sought to pay off the balance on the loan, roughly $13,000, with a money order issued by a private party, W.D. McCall Associates (McCall), with a mailing address in Waxahachie, Texas. Pouncy told First Virginia to mail the private money order to McCall for payment.
3
First Virginia submitted the McCall money order through the Federal Reserve System. It was returned to First Virginia, as having "no authorized presentment point." First Virginia then mailed the money order to McCall, and received in return a "Certified Bankers Cheque," also issued by McCall, for an amount less than that of the money order. The bankers check was not, in fact, drawn on a bank, and was not collectible through the Federal Reserve.
4
On February 7, 1994, First Virginia gave written notice to Pouncy that neither the money order nor the bankers check were appropriate forms of payment. Moreover, the Mortgage Bankers Association had advised First Virginia that other lenders had presented identical money orders to McCall, and had been denied payment. Finally, First Virginia told Pouncy that the bankers check would not be accepted through normal banking channels. Pouncy, however, asserted that he had paid off the loan, and that First Virginia was unlawfully withholding satisfaction of the deed of trust note.
5
After Pouncy's loan was in default for several months, First Virginia gave foreclosure notice to Pouncy. Pouncy, however, refused to make additional payments. On May 4, 1994, the property was foreclosed.
6
Pouncy filed a pro se complaint on April 11, 1994, attempting to enjoin the scheduled foreclosure. On May 5, 1994, Pouncy filed an ex parte request for a temporary restraining order (TRO). The district court issued an order finding that the TRO motion could not be heard, because the foreclosure had already occurred. Thereafter, Pouncy withdrew his request for a preliminary injunction, and filed an amended complaint, identical in substance to his original complaint.
7
Pouncy's complaint contained two basic threads. First, Pouncy accused First Virginia of issuing a check to Pouncy backed only by Federal Reserve notes, and not by gold or silver reserves, in violation of U.S. Const. art. I, Sec. 10. Pouncy maintained that Federal Reserve notes are not lawful money of the United States, and that he was induced into executing the original deed of trust by First Virginia's false statement that it would lend him $20,750 "in lawful money of the United States per 31 U.S.C. Sec. 5101."1 He charged First Virginia with an array of fraud claims, breach of "quasi-oral contract," and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. Sec. 1964(c) (West 1984 & Supp.1994), the Fair Debt Collection Act, 15 U.S.C. Sec. 1692k (1988), and other federal laws. He contended, ultimately, that the deed of trust upon which First Virginia foreclosed was void because of First Virginia's failure to provide the promised consideration--lawful money--for Pouncy's note and deed of trust.
8
The second thread of Pouncy's complaint faulted First Virginia's refusal to accept the McCall money order or bankers check as payment in full of Pouncy's loan balance. Pouncy's theory appears to be that because Federal Reserve notes are mere promises to pay money, and are not legal tender, his payment to First Virginia of the private money order and bankers check was "payment of like kind" for the loan check that he received from First Virginia.
9
Pouncy alleged that the refusal by First Virginia to accept the tendered payment violated several provisions of the Uniform Commercial Code. He asserted that his debt was paid in full, and that the foreclosure on the deed of trust was unlawful under the Fair Debt Collection Act. Finally, he alleged that Defendants "knowingly made false statements to current renters of [the foreclosed] property, and various credit bureaus defaming my character, [and] preventing me from obtaining loans from other financial institutions." Although Pouncy does not explain what allegedly defamatory statements were made, we assume that he is referring to First Virginia's publication of the notice of foreclosure to Pouncy's creditors and to the person residing at the property in question.
10
Defendants filed a motion to dismiss, asserting that Pouncy's complaint failed to state a cause of action. Fed.R.Civ.P. 12(b)(6). In response, Pouncy filed a Motion for Judgment of Default, seeking a judgment because Defendants had not filed an answer to his complaint. Next, Pouncy filed a Motion for Common Law Hearing, demanding a jury trial on the Defendants' motion to dismiss.
11
The district court issued an order denying Pouncy's motions, granting Defendants' motion, and dismissing Pouncy's complaint. Pouncy filed a timely notice of appeal.
12
Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is appropriate where, construing the allegations in the light most favorable to the plaintiff and assuming the facts alleged in the complaint are true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We review a district court's Rule 12(b)(6) dismissal de novo. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989).
13
We find that Pouncy fails to state any claim against Defendants, because his entire complaint is based upon two utterly specious propositions: (1) that Federal Reserve notes are not legal tender; and (2) that a privately drafted money order or check constitutes valid tender of payment for his debt.
14
Congress, in full accordance with its authority under article I, section 8, clause 5 of the Constitution, has established that Federal Reserve notes are legal tender. 31 U.S.C. Sec. 5103 (1988); see Birkenstock v. Commissioner, 646 F.2d 1185, 1186 (7th Cir.1981); United States v. Rickman, 638 F.2d 182, 184 (10th Cir.1980); Mathes v. Commissioner, 576 F.2d 70, 71 (5th Cir.1978), cert. denied, 440 U.S. 911 (1979); Nixon v. Phillipoff, 615 F.Supp. 890, 893 (N.D. Ind.1985), aff'd without op., 787 F.2d 596 (7th Cir.1986); see also Juillard v. Greenman, 110 U.S. 421, 449 (1884). Therefore, Pouncy's claims of fraud, breach of contract, RICO violations, and mail fraud, among others, which hinge upon his belief that Federal Reserve notes are not money, are clearly baseless under any conceivable set of facts.
15
Pouncy's contention that a private party's money order or check must be accepted as payment for a debt is incontrovertibly false. We reject as frivolous Pouncy's position that an individual can simply fill out a piece of paper, label it a "certified money order" or "certified bankers cheque," and present it to a lender in full satisfaction of a debt. Nor can Pouncy discharge his obligation to First Virginia by unilaterally substituting another debtor, McCall, in his place. Because neither the money order nor the bankers check was convertible into money, we find no legal basis for Pouncy's claims against Defendants which depend upon his full payment of his debt.
16
We agree with the district court that Pouncy's complaint fails to state a claim, and should be dismissed under Fed.R.Civ.P. 12(b)(6). We find further that the district court properly denied Pouncy's Motion for Default Judgment and Motion for Common Law Hearing.2 Accordingly, we affirm the district court's order in toto. 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
1
"United States money is expressed in dollars, dimes or tenths, cents or hundredths, and mills or thousandths. A dime is a tenth of a dollar, a cent is a hundredth of a dollar, and a mill is a thousandth of a dollar." 31 U.S.C. Sec. 5101 (1988)
2
Pouncy's Motion for Default Judgment cites Defendants' failure to file an answer as grounds for judgment. Because Defendants' Rule 12(b)(6) motion was pending in the district court, no answer was yet due. Fed.R.Civ.P. 12(a)(4)(A)
In his Motion for Common Law Hearing, Pouncy sought a jury trial for Defendants's Motion to Dismiss. Because a ruling on a Rule 12(b)(6) motion involves only questions of law, there is no role for a factfinder at this stage of the litigation. Therefore, the district court's denial of Pouncy's motion was proper.
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660 F.2d 573
John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant,v.Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.
No. 81-7043.
United States Court of Appeals,Fifth Circuit.
Unit B*
Nov. 2, 1981.
Robert C. Glustrom, John Charles Boger, New York City, Anthony G. Amsterdam, Stanford, Cal., Samuel R. Gross, New Haven, Conn., for petitioner-appellant.
Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HILL, Circuit Judge, SMITH**, Judge, and HENDERSON Circuit Judge.
JAMES C. HILL, Circuit Judge:
1
This appeal involves the denial of a petition for writ of habeas corpus made by a Georgia state inmate under sentence of death. Petitioner John Eldon Smith, a/k/a Anthony Isalldo Machetti, was convicted on two counts of murder in the Superior Court of Bibb County, Georgia and on January 30, 1975 was sentenced to die.1 The Georgia Supreme Court affirmed both his conviction and sentence, Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976), and the United States Supreme Court denied certiorari. Smith v. Georgia, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). Smith then unsuccessfully petitioned for a writ of habeas corpus in state court, the Georgia Supreme Court affirmed the denial of relief, Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978), and again the United States Supreme Court denied certiorari. Smith v. Hopper, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978).
2
Having exhausted his state court remedies, Smith sought a writ of habeas corpus in the United States District Court for the Middle District of Georgia under 28 U.S.C. § 2254. The district judge referred Smith's case to a magistrate, whose proposed findings of fact and conclusions of law were adopted as the opinion of the court. Accordingly, on November 26, 1980, the district court denied the request for a writ. Smith now appeals from that denial. For the reasons set forth below, we affirm the dismissal of Smith's petition.
3
On appeal Smith raises three main issues. First, he contends that the exclusion from the jury, for cause, of two veniremen who were unequivocally opposed to the death penalty violated his rights under the sixth and fourteenth amendments in three distinct respects: (1) exclusion of these veniremen resulted in a jury that was conviction prone and thus less than neutral on the issue of guilt, in violation of his right to trial by an impartial jury; (2) their exclusion violated his right to trial by a jury chosen from a fair cross-section of the community; and (3) the cumulative effect of such death qualification of jurors infringed his sixth amendment interest in a properly functioning jury. Second, Smith urges that his death sentence was imposed pursuant to an arbitrary and racially discriminatory pattern of capital sentencing in Georgia. Finally, he challenges the constitutional adequacy of Georgia's capital sentencing review procedures.2
I. THE COMPOSITION OF SMITH'S JURY
A. Right to Trial by an Impartial Jury
4
During voir dire examination of the jury venire from which the jury that convicted Smith was selected, two persons unambiguously expressed their opposition to the death penalty, indicating that they would automatically vote against imposition of that penalty without regard to evidence presented in the case.3 These veniremen were excused for cause in accordance with the practice approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).4
5
Smith contends that the exclusion for cause of these veniremen violated his right under the sixth and fourteenth amendments to an impartial jury.5 He asserts an argument considered but rejected by the Supreme Court in Witherspoon namely that those veniremen who remain on the jury after the exclusion of those unalterably opposed to the death penalty are more conviction prone than the ones excluded under the "death qualifying"6 procedure. While Smith does not challenge the exclusion of these unalterably death-opposed veniremen from the panel that determines the penalty to be imposed, he asserts that their being excluded from the guilt determination stage7 results in the creation of an unconstitutionally conviction-biased jury. In support of his contention, Smith offers a plethora of studies, some of which were before the Court in Witherspoon.8
6
In rejecting this constitutional objection in Witherspoon,9 the Supreme Court stated:
7
The data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.
8
391 U.S. at 517-18, 88 S.Ct. at 1774-75 (footnote omitted). However, the Court did not foreclose a defendant, having more persuasive evidence of juror tendencies, from asserting the guilt proneness of death-qualified jurors in a subsequent case. Some of the issues that would then arise were suggested.
9
Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment.
10
Id. at 520 n.18, 88 S.Ct. at 1776. Seizing this invitation, Smith argues that the studies he has offered provide the requisite degree of proof.10
11
We assume without deciding that Smith's evidence does indeed supply the persuasiveness found lacking by the Supreme Court and by many other courts, both federal and state, since Witherspoon.11 Nevertheless, for reasons to be discussed, we hold that the exclusion for cause from Smith's jury of veniremen so unequivocally opposed to the death penalty that they would not follow the law on the subject did not deny his constitutional right to an impartial jury.
12
In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), this court rejected the precise contention now urged by Smith.12 Today we reaffirm the rationale set forth in Spinkellink.
13
That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant.
Id. at 594.13
14
All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated i. e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence. The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment. Yet Smith here urges that he has a constitutional right to a jury more likely than a death-qualified jury to find him innocent.
15
In essence, Smith urges us to define "impartial" as a middle ground that involves a jury with persons who are in effect defendant prone.14 The logical converse of the proposition that death-qualified jurors are conviction prone is that nondeath-qualified jurors are acquittal prone, not that they are neutral. Smith offers no proof that inclusion of veniremen currently excludable under Witherspoon will not tip the balance in the guilt/innocence determination in favor of the accused.15 The state as well as the accused enjoys a right to an impartial jury. See Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887); Williams v. Wainwright, 427 F.2d 921, 923 (5th Cir. 1970), modified, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972). Such a tilt of the scales of justice would violate that right. As recognized in Spinkellink, the danger of a defendant prone jury is too great to accede to Smith's claim.
16
The state has decided that the parties' right under the Sixth and Fourteenth Amendments to an impartial jury and the state's interest in the just and even-handed application of its laws, including (the state's) death penalty, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment.
578 F.2d at 596.16
B. Destruction of the Whimsical Doubt
17
While we reject Smith's argument that conviction by a death-qualified jury violates his right to an impartial jury, we are fully cognizant that, with regard to the guarantee of impartiality, there are strong competing interests on both sides. As the Supreme Court indicated in dicta in Witherspoon, the question is one of accommodation. The Court stated that, even if a defendant proved that the jury which convicted him was less than neutral,17 the issue would then become "whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence." Witherspoon v. Illinois, 391 U.S. at 520 n.18, 88 S.Ct. at 1776. Thus the Court characterizes the dilemma as a problem of remedy and invites consideration of a remedy which, while accommodating the state's interest in submitting the penalty issue to a jury capable of voting for death may be less restrictive of the defendant's interests than is the current scheme.
18
With this "less restrictive alternative" approach in mind, the Supreme Court suggested,18 and petitioner Smith urged at oral argument, the use of a bifurcated trial, with one jury to determine guilt and another to fix punishment.19 This court is not persuaded, however, that this procedure would in fact be less restrictive of the capital defendant's interests.20 Indeed our fear is that, were we to sanction such a remedy as an appropriate balance of constitutional rights, we would deprive the capital defendant of important benefits which the current system affords him.21
19
As capital trials are currently conducted in Georgia, the same jury sits at both the guilt and penalty phase.22 There is a potential benefit to a defendant inherent in such a procedure which would be lost were the jury which found guilt discharged and a new jury empanelled to decide punishment. We cannot point to any empirical data in this record demonstrating such a benefit, but we ought not ignore reality.
20
The fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt doubt based upon reason and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt this absence of absolute certainty can be real.
21
The capital defendant whose guilt seems abundantly demonstrated may be neither obstructing justice nor engaged in an exercise in futility when his counsel mounts a vigorous defense on the merits. It may be proffered in the slight hope of unanticipated success; it might seek to persuade one or more to prevent unanimity for conviction; it is more likely to produce only whimsical doubt. Even the latter serves the defendant, for the juror entertaining doubt which does not rise to reasonable doubt can be expected to resist those who would impose the irremedial penalty of death.
22
Under Georgia's present procedure, such a juror would sit to decide punishment. The right to have that juror or those jurors , entertaining whimsical doubt, on the penalty jury is of undoubted value to the defendant.
23
The scheme appellant here urges upon us would effectively destroy the whimsical doubt. The guilt-determining jurors including those not absolutely certain would be thanked for their service and discharged. A new jury, including only those willing to impose the death penalty, would be selected. They would entertain no doubt that the defendant before them was, indeed, the guilty party. Presumably they would be instructed that the defendant was the guilty party. They would hear only evidence of aggravating circumstances surrounding the commission of the crime and mitigation if there be evidence of such. Not even a flimsy alibi would disturb their deliberations; no suggestion of misidentification would be material. Certainty of guilt would replace any whimsical doubt entertained by the discharged jurors. Some may conclude that the destruction of the whimsical doubt, sought here by appellant, would involve a more serious deprivation of the benefits of the constitutionally guaranteed jury trial than envisioned by Smith's advocates in this appeal.23 In short, Smith has not persuaded us that the remedy he has suggested is a better accommodation of the state's and the defendant's interests than is the present system.24
24
That there is no record in this case evaluating the impact of the two-jury system upon important interests of the defendant further illustrates the shortcomings of appellant's case. A compilation of data from experience or experiment might show the relative likelihood of the imposition of the death penalty by jurors directed to accept the guilt of defendant and by jurors who have heard and considered defendants' attacks upon prosecutors' fact cases. Absent such data, mere proof of the coincidence of exclusions for cause and elimination of tendencies of excused veniremen is but a fragment of the whole picture.
25
What we have written here is not based upon a review of the record in this case. We merely presume to some understanding of the place of a jury in our system for the administration of justice. That role is, in the end, "the interposition between the accused and his accuser of the commonsense judgment of a group of laymen" spoken of in Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970).
26
C. Right to a Jury Chosen from a Fair Cross-Section of the Community
27
Smith also argues that the exclusion for cause of veniremen opposed to the death penalty infringed his right under the sixth and fourteenth amendments to a jury which is representative of the community. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975), clearly establishes that the "venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." In reliance on Taylor, Smith urges that death-opposed jurors comprise a distinctive group whose systematic exclusion violates the sixth amendment. Although the fair cross-section requirement does not mean that the jury actually chosen must mirror the community and reflect the various distinctive groups in the population, id.,25 the Supreme Court's opinions concerning the jury trial guarantee do intimate that this sixth amendment right comprehends a fair possibility for obtaining a jury which is representative of the community. See Peters v. Kiff, 407 U.S. 493, 500, 92 S.Ct. 2163, 2167, 33 L.Ed.2d 83 (1972); Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 466 (1970). The exclusion of veniremen unalterably opposed to the death penalty undoubtedly reduces the possibility of obtaining a jury which represents a true cross-section of the community. Any elimination of prospective jurors who are disqualified potentially impairs the achievement of a true cross-section on the particular jury. Nevertheless it must be remembered that a jury which reflects a fair cross-section of the community is a goal that is never to be achieved at the cost of leaving on the jury those veniremen who are legitimately disqualified. As the Supreme Court has observed, "The fair cross section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury list or panels are representative of the community." 419 U.S. at 537-38, 95 S.Ct. at 701.
28
One would not suppose, for example, that defendant Jones who was on trial for murder in Jones County, 85% of which is populated by members of the Jones family, is entitled to a jury on which members of the Jones family serve, even though a jury from which Jones family members are excluded would not reflect a fair cross-section of the community. Thus, relationship to the defendant is a legitimate disqualification even though, in our hypothetical, such exclusion negates any possibility of obtaining a jury which is representative of the particular community. Likewise, unalterable opposition to capital punishment is a legitimate disqualification even though it reduces the possibility of achieving a true cross-section on the particular jury. As stated by the Supreme Court, even if the defendant establishes a prima facie violation of the fair cross-section requirement,26 the state may justify the infringement by proof of "a significant State interest (which is) manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of the distinctive group." Duren v. Missouri, 439 U.S. 357, 367-68, 99 S.Ct. 664, 670, 58 L.Ed.2d 579 (1979) (footnote omitted). "(T)he parties' right under the sixth and fourteenth amendments to an impartial jury and the state's interest in the just and evenhanded application of its laws" supply the necessary justification. Spinkellink v. Wainwright, 578 F.2d 582, 597 (5th Cir. 1978). For these reasons, we hold that unalterable opposition to the death penalty is a legitimate disqualification and that the exclusion of such disqualified jurors does not violate the fair cross-section principle of the sixth amendment. The fair cross-section must, in the end, be fair. Neither the state nor the defendant is entitled to an unfair juror whose interests, biases or prejudices will determine his or her resolution of the issues regardless of the law and regardless of the facts. A cross-section of the fair and impartial is more desirable than a fair cross-section of the prejudiced and biased.
D. Right to a Properly Functioning Jury
29
Relying on Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), Smith argues that the process of death qualification has the same damaging effects condemned as a violation of sixth and fourteenth amendment interests in Ballew. In that case the Supreme Court concluded that a state criminal trial to a jury of only five persons deprived the accused of the jury trial right guaranteed by the sixth and fourteenth amendments. The Court's conclusion rested on empirical evidence suggesting that the smaller size of the jury had detrimental effects on group deliberation, on the accuracy and consistency of results, and on the representation of minority viewpoints in jury decisionmaking. Id. at 232-38, 98 S.Ct. at 1035-38. By analogy Smith contends that death qualification is unconstitutional because it limits the attitudinal perspectives represented on the jury, thereby inhibiting the counterbalancing of biases during the deliberative process,27 and excludes a significant minority viewpoint.28
30
Smith's analogy to Ballew is inappropriate. The Supreme Court's concern in Ballew focused on the effect of size on the proper functioning of the jury. The Court's task was that of simply drawing a line, of setting a constitutional minimum for the size of juries in nonpetty criminal cases. See Ballew v. Georgia, 435 U.S. at 245-46, 98 S.Ct. at 1041-42. (Powell, J., concurring) ("(T)he line between five- and six-member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved."). Thus the Court limited its focus to this question. It did not purport to establish, as Smith would have us accept, a sweeping constitutional rule stating that factors which, considered individually, do not infringe an accused's sixth and fourteenth amendment rights may effect, when viewed in the aggregate, a violation of those rights. The Court in Ballew was not inviting defendants to allege as many "negative" factors as possible with the hope of reaching the threshold level for a sixth amendment violation. Moreover, the analogy to Ballew is faulty because Smith is concerned with the particular attitudinal composition of the jury and seeks to require the inclusion of a particular viewpoint i.e., the view of those irrevocably opposed to the death penalty on any jury that determines his guilt or innocence. So phrased, Smith's argument manifests itself as simply another way of claiming that the jury which convicted him was not fairly representative of the community. We have considered and rejected this claim above.29
31
Having examined each aspect of Smith's constitutional attack on the exclusion of veniremen irrevocably opposed to the death penalty, we conclude that Smith's jury was constitutionally composed. We are not prepared to nullify Witherspoon by holding that the death qualification process approved therein violates the defendant's rights under the sixth and fourteenth amendments.
32
II. ARBITRARY & CAPRICIOUS IMPOSITION OF DEATH PENALTY
33
Smith next contends that his sentence was imposed pursuant to a pattern and practice of wholly arbitrary and capricious infliction of the Georgia death penalty in violation of the eighth and fourteenth amendments. The district court properly found Spinkellink controlling on this issue.30
34
In Spinkellink this court observed "that if a state follows a properly drawn statute in imposing the death penalty, then the arbitrariness and capriciousness and therefore the racial discrimination condemned in Furman (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346) have been conclusively removed." Spinkellink v. Wainwright, 578 F.2d 582, 613-14 (5th Cir. 1978) (footnotes omitted). Smith construes Spinkellink as precluding constitutional challenges to the application of a death penalty statute and argues that Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980),31 overrules Spinkellink on this point. Spinkellink, however, effected no such broad prohibition. It merely established that in the absence of proof of "some specific act or acts evidencing intentional or purposeful ... discrimination against (the petitioner) " on the basis of race, sex, or wealth, a petitioner is not entitled to relief on habeas corpus. 578 F.2d at 614 n.40 (emphasis added).32 As in Spinkellink, we find Smith's claim brimming with "(m)ere conclusory allegations" of discrimination, id., and wanting in proof of intentional discrimination against him in this particular case.
35
The equal protection aspect of Smith's attack on the constitutionality of the application of Georgia's death penalty suffers from a similar deficiency. Smith has adduced evidence that "racial factors (are) evident in Georgia capital sentencing patterns." Brief for Petitioner-Appellant at 40. Even if this evidence were sufficient to prove a racially disproportionate impact and we do not decide that it is such evidence alone cannot establish an equal protection violation. To trigger strict scrutiny of a statute, proof of intentional or purposeful discrimination is necessary. Washington v. Davis, 426 U.S. 229, 265, 96 S.Ct. 2040, 2059, 48 L.Ed.2d 597 (1976); Spinkellink v. Wainwright, 578 F.2d 582, 615 (5th Cir. 1978). Without such proof,33 any discriminatory impact may be explained on nonracial grounds. Spinkellink v. Wainwright, 578 F.2d at 615. As we have already observed, the state has a legitimate interest in prescribing relevant qualifications for jurors to protect against jurors with pro-defendant biases. Having failed to prove a racially discriminatory intent or purpose in the application of Georgia's death penalty, Smith has not established a violation of the equal protection clause of the fourteenth amendment.
36
III. GEORGIA'S CAPITAL SENTENCING REVIEW PROCEDURES
37
Smith's final complaint centers on the constitutional adequacy of Georgia's capital sentencing review procedures. On review of a case in which the death penalty is imposed, the Georgia Supreme Court is charged with determining:
38
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
39
(2) Whether ... the evidence supports the jury's ... finding of a statutory aggravating circumstance ..., and
40
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
41
Ga.Code Ann. § 27-2537(c) (1978). Georgia's statutory scheme for the imposition of the death penalty, including this provision for expedited appellate review by the Georgia Supreme Court, was held to be constitutional on its face by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell & Stevens, JJ.). Smith contends that the approval in Gregg was conditioned on the Court's assumption about the procedural protections afforded by appellate review and that this assumption has proven to be unfounded. In support of this claim, he relies on a study purporting to show that the methods used by the Georgia Supreme Court to evaluate excessiveness and disproportionality are scientifically unsound and have exaggerated, not reduced, the racial and geographic disparities present in capital sentencing. We cannot conclude, as the district court apparently could not,34 on the basis of this evidence that the Georgia Supreme Court is "incapable of performing its task adequately in all cases." Gregg v. Georgia, 428 U.S. 153, 224, 96 S.Ct. 2909, 2949, 49 L.Ed.2d 859 (White, J., concurring). Nor has Smith "even attempted to establish that the Georgia Supreme Court failed properly to perform its task in this case." Id. (emphasis added).
42
To the contrary, the Georgia Supreme Court followed the statutory mandate imposed by § 27-2537(c). It determined that the sentence was not imposed under the influence of passion, prejudice, or other arbitrary factors and, after carefully reviewing the evidence, concluded that the evidence supported the jury's finding that Smith committed the murders for the purpose of receiving money or other things of monetary value, the statutory aggravating circumstance set forth in § 27-2534.1(b)(4). Smith v. State, 236 Ga. 12, 24, 222 S.E.2d 308, 317-18, cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). As part of its comparative sentence review, the court also found that the sentence of death in this case was not excessive or disproportionate to the penalties in similar cases, expressly noting the pattern it discerned in the imposition of the death penalty in multiple murder cases. Id. at 24-25, 222 S.E.2d at 318. We therefore reject Smith's contention that Georgia's appellate review procedure in capital cases is constitutionally defective and that it operated ineffectively in this case.
43
AFFIRMED.
*
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 October 14, 1980
**
Judge of the U. S. Court of Claims, sitting by designation
1
The victims of Smith's crimes were Joseph Ronald Akins and his wife of twenty days, Juanita Knight Akins. Mr. Akins was the ex-husband of Smith's wife, Rebecca Akins Smith Machetti. The murder of Mr. and Mrs. Akins was part of a scheme to secure the proceeds of a life insurance policy on Mr. Akins, and other benefits, the beneficiaries of which were Mrs. Machetti and her three daughters by her marriage to Akins. Smith enlisted the aid of John Maree, who for his participation in the murder scheme was to receive $1,000. Maree and Smith contacted Akins and lured him to the scene of the crime, ostensibly for the purpose of having Akins install a television antenna. On the arrival of Akins and his wife, Smith shot both of them with a shotgun at close range. For additional facts concerning Smith's crime, trial, and conviction, see Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976)
2
Before examining the merits of each of the issues raised by petitioner, we must address one contention argued throughout his brief. Smith asserts that the district court erroneously denied him a plenary hearing on the constitutional claims presented in his application for a writ of habeas corpus. First, we note that the district judge expressly stated that he would consider all evidence and authorities offered in support of petitioner's motion for an evidentiary hearing in deciding the merits of the habeas corpus petition. The district judge also allowed the parties thirty days for filing any additional evidence or briefs. Record at 209. Although petitioner contends that at an oral hearing he would have presented new studies never considered by any court with respect to his claims, he does not explain why he was unable to submit these in documentary form to the magistrate during the thirty-day period granted
Furthermore, although Smith has not relied on 28 U.S.C. § 2254(d), we note that the district court's refusal to hold an evidentiary hearing did not violate that section, which sets forth the circumstances under which a federal district court must hold a hearing on allegations in a habeas corpus petition.
When ... it affirmatively appears from the petition that a petitioner is not entitled to the writ, an evidentiary hearing is unnecessary .... For example, if a petitioner's habeas corpus allegations raise legal questions only, a district court's refusal to hold an evidentiary hearing does not violate the directives of ... Section 2254(d).
Spinkellink v. Wainwright, 578 F.2d 582, 590 (5th Cir. 1978) (citations omitted). Smith raises many of the same contentions raised by the petitioner in Spinkellink v. Wainwright. As did the panel in Spinkellink, we view these contentions to raise legal questions only and conclude that an evidentiary hearing therefore was not warranted.
3
The two veniremen who were excluded were Ulysses G. Mathis and Arlin Henry Dowd. The following excerpt from the trial transcript reveals Mr. Mathis' unequivocal opposition and is almost identical to the colloquy with Mr. Dowd
Q. Mr. Mathis, are you conscientiously opposed to capital punishment?
A. Yes, I am.
....
Q. Have you already decided that should you be selected on the jury that should you and your fellow jurors find the defendant guilty of the capital offense charged, you would vote against a recommendation of death, without regard to the facts and circumstances that might emerge during the course of this trial?
A. Yes, I would.
Q. You have already made that decision this morning before hearing this case?
A. Yes.
Q. Are you prepared to consider fairly and fully the death penalty as one of the penalties provided by the laws of the State of Georgia as punishment for those found guilty of capital offenses, such as Murder, under certain circumstances and vote to impose the death penalty should the facts and circumstances of this case so warrant?
A. No, I could not vote to impose the capital punishment.
Trial Transcript at 65.
4
In Witherspoon the Supreme Court held that a sentence of death could not be carried out where the jury that recommended this sentence was chosen by excluding veniremen who voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. 391 U.S. at 522, 88 S.Ct. at 1777. The Court was careful to note, however, what its holding did not prohibit
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear ... that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them ....
Id. n.21 (emphasis original).
5
The sixth amendment provides that "(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...." U.S.Const. amend. VI. The guarantee of a jury trial in nonpetty criminal cases was first made applicable to the states through the due process clause of the fourteenth amendment in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)
6
By death qualification we simply mean the process of determining during voir dire whether a particular venireman is unalterably opposed to capital punishment and would never vote to impose it regardless of the evidence presented or whether he is generally opposed to capital punishment but could subordinate his personal views and apply the law of the jurisdiction in light of the facts of the particular case. The former are excused for cause, while the latter are qualified (as are those not opposed to the death penalty)
7
Georgia follows a bifurcated procedure in capital cases tried before a jury. If the jury returns a verdict of guilty, the court then conducts a presentence hearing before the jury during which any evidence of aggravating or mitigating circumstances, any prior record of the defendant, and arguments of counsel are presented. Upon conclusion of the evidence and arguments, and following the judge's instructions to the jury, the jury retires to determine the penalty to be imposed. Ga.Code Ann. § 27-2503(b) (1978). In the case of murder the death penalty may not be imposed unless at least one of the statutory aggravating circumstances is found. Id. § 27-2534.1(c). If the jury recommends death, it must designate in writing the aggravating circumstance(s) which it found beyond a reasonable doubt. Id
The following are the aggravating circumstances set forth in the statute:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
Id. § 27-2534.1(b). Smith's jury recommended the death penalty on the basis of finding beyond a reasonable doubt that Smith committed the murder "for the purpose of receiving money or any other thing of value" pursuant to § 27-2534.1(b)(4).
8
The studies presented by Smith include: Bronson, On the Conviction Proneness and Representativeness of the Death Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and the Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.C.R.-C.L.Rev. 53 (1970); Jurow, New Data on the Effects of a "Death-Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971); E. Bronson, The Exclusion of Scrupled Jurors in Capital Cases: The California Evidence on Conviction Proneness and Representativeness (1979) (California State University at Chico, Discussion Paper 79-6); P. Ellsworth & R. Fitzgerald, Due Process v. Crime Control: The Impact of Death Qualification on Jury Attitudes (1979) (unpublished manuscript); P. Ellsworth, C. Cowan & W. Thompson, Juror Attitudes and Conviction Proneness: The Relationship Between Attitudes Toward the Death Penalty and Predisposition to Convict (1979) (unpublished manuscript); P. Ellsworth, J. Harrington, W. Thompson & C. Cowan, The Effects of Capital Punishment Attitudes on Juror Perceptions of Witness Credibility (1979) (unpublished manuscript); P. Ellsworth, W. Thompson & C. Cowan, Death Penalty Attitudes and the Concept of "Reasonable Doubt" (1979) (unpublished manuscript); P. Ellsworth, W. Thompson & C. Cowan, Ellsworth/Thompson/Cowan Conviction-Proneness Study Post Deliberation Follow-Up Data (1979) (unpublished manuscript); C. Haney, The Biasing Effect of the Death Qualification Process (1979) (unpublished manuscript); Louis Harris & Associates, Inc., Study No. 2016 (1971); T. Smith, A Trend Analysis of Attitudes Toward Capital Punishment 1936-1974, reprinted in Studies of Social Change Since 1948 (J. Davis ed.) (National Opinion Research Center Report 127B, Chicago, 1976) (partial summary of various national polls conducted by Louis Harris & Associates, Inc., American Institute for Public Opinion, & National Opinion Research Center from 1953-1978); W. Wilson, Belief in Capital Punishment and Jury Performance (1964) (unpublished manuscript); H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (1968) (Monograph Center for Studies in Criminal Justice, University of Chicago Law School). The United States Supreme Court had before it the Goldberg, Wilson & Zeisel studies when it considered and rejected Witherspoon's claim that a death-qualified jury is less than neutral on the issue of guilt. Witherspoon v. Illinois, 391 U.S. 510, 517 n.10, 88 S.Ct. 1770, 1774, 20 L.Ed.2d 776 (1968)
9
The Court also rejected this argument in a case decided the same day as Witherspoon, Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 1790, 20 L.Ed.2d 797 (1968)
10
Smith points to footnote 18 in Witherspoon as the basis for his entitlement to an evidentiary hearing in the district court. This passage can hardly be construed as a mandate that district courts hold such a hearing when a hearing is not otherwise statutorily required. In note 2, supra, we decided that an evidentiary hearing was not warranted. Furthermore, we note that with respect to the conviction proneness argument, the state court conducted a full and fair hearing before denying Smith's habeas corpus petition. Dr. Faye Goldberg and Hans Zeisel, both authors of studies presented in support of Smith's argument, testified at the state court hearing
11
See Spinkellink v. Wainwright, 578 F.2d 582, 593-96 (5th Cir. 1978); United States ex rel. Clark v. Fike, 538 F.2d 750, 762 (7th Cir. 1976); United States v. Marshall, 471 F.2d 1051, 1053 (D.C.Cir.1972); Eli v. Nelson, 360 F.Supp. 225, 227 (W.D.Cal.1973); Wingfield v. State, 231 Ga. 92, 93, 200 S.E.2d 708, 711 (1973); People v. Connolly, 55 Ill.2d 421, 428-29, 303 N.E.2d 409, 413 (1973); State v. Shepherd, 213 Kan. 498, 516 P.2d 945, 952 (1973); Commonwealth v. McAlister, 365 Mass. 454, 313 N.E.2d 113, 118 (1974); Fowler v. State, 512 P.2d 238, 245-46 (Okl.Cr.1973); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); Hunter v. State, 496 S.W.2d 900, 902 (Tenn.1972); State v. Trevino, 10 Wash.App. 89, 92-94, 516 P.2d 779, 782-83 (1973)
12
Smith attempts to persuade us that Spinkellink is not controlling in light of new studies that were not available to this court at the time Spinkellink was decided. Any significant improvement in the scientific exactitude or conclusiveness of the proof of guilt proneness, however, is irrelevant with respect to the precedential value of Spinkellink because, as in this opinion, the court assumed that Spinkellink's contention regarding guilt proneness was factually true. 578 F.2d at 590
13
Smith argues that this passage reveals the assumption which is central to Spinkellink's rejection of the conviction proneness claim-viz., that there is no ascertainable standard for determining jury impartiality. Brief for Petitioner-Appellant at 33. He further asserts that this assumption is clearly erroneous in light of new studies that correlate juror attitudes toward the death penalty with tendency to favor the prosecution. We remain unpersuaded. Although the new studies may give us an external, ascertainable standard for determining death-qualified jurors' tendency to convict, they do not give us a standard for measuring impartiality per se. Moreover, we cannot expect to achieve the abstract concept of impartiality if it be equated with absence of tendency
14
An impartial jury, he contends, is one composed of persons who can fairly and impartially determine the defendant's guilt without reference to their opinions on the death penalty. Brief for Petitioner-Appellant at 34. Thus he proposes that there should be no death qualification of veniremen prior to the guilt determination stage. This proposal reveals a paradox, however; for the very premise of Smith's contention that death-qualified jurors are conviction prone maintains that attitudes toward the death penalty influence the guilt/innocence determination. Therefore, there exists the risk that a jury that has not been death-qualified contains many persons who are acquittal or defendant prone because of their opposition to the death penalty. Abstaining from inquiries as to the opinions of veniremen does not insure that the jury will be composed of persons having no opinion
While propounding the evils of the process of death qualification, Smith also concedes that those veniremen who would automatically recommend the death penalty are properly excludable. Thus, Smith seeks the best of both worlds: he urges that persons unalterably opposed to capital punishment be included on juries at the guilt determination stage and that persons unequivocally committed to imposing the death penalty be excluded. The resulting jury is composed of persons who are neutral with respect to the death penalty, those who theoretically favor or oppose the death penalty but would subordinate these views in applying the law to the evidence, and those who are unalterably opposed to the death penalty. Clearly, the balance of opinion on a jury so composed is in the accused's favor. We refuse to accept Smith's notion of "impartiality."
15
It will readily be seen that this "balanced" jury, which the defendant envisages, is in reality a "partisan jury": if, as he urges, it may include jurors with bias or scruples against capital punishment it must if it is to have "balance" include also those with bias in favor of the death penalty as the punishment for murder
United States v. Puff, 211 F.2d 171, 185 (2d Cir.), cert. denied, 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106 (1954).
16
We feel compelled to add that a challenge to the exclusion of death-opposed jurors is a challenge to the state's right to have jurors capable of obeying the court's instructions and of applying the law to all of the issues in the case
It is highly probable that a survey would disclose that there is a statistically significant number of potential jurors who disagree with the rule that the state must prove guilt beyond a reasonable doubt and that such people are more readily persuaded by the prosecutor than are others. Nevertheless it does not follow that the state would be entitled to have on the panel any such potential jurors even though they confess that they would be unwilling to accept and apply this important rule. All parties are entitled to the exclusion of those whose feelings are so intense that they would be unwilling to obey the law if it be perceived as contrary to their tendencies.
17
A serious defect in petitioner Smith's argument that his conviction must be reversed is his failure to bridge the gap of proof between the abstract proposition that death-qualified jurors are conviction prone and the contention that the jury which convicted him was in fact less than neutral with respect to guilt
18
The Court emphasized that this alternative was only a suggestion, stating it intimated no view regarding the proper resolution of this problem. 391 U.S. at 520 n.18, 88 S.Ct. at 1776
19
Id
20
Our reservations on this point are in addition to our refusal, as discussed above, to consider a jury which includes persons with unalterable opposition to the death penalty an "impartial" jury. Thus the bifurcated procedure cannot overcome the risk of violating the state's right to an impartial jury inherent in a nondeath-qualified jury which may be defendant prone, since a bifurcated procedure envisions a jury at the guilt determination stage which is composed as Smith urges
21
More specifically, we fear that in his zeal to correct what he perceives to be a constitutional deficiency in the guilt phase, the defendant has viewed the problem with tunnel vision, ignoring the detriment which the proposed remedy entails. Although petitioner objects only to the exclusion at the guilt phase of veniremen opposed to the death penalty and not to their exclusion at the penalty phase, we must examine, having due regard for the protection of the defendant's rights, the consequences of any remedy which he asks this court to sanction
22
Ga.Code Ann. § 27-2503(b) (1978)
23
We have not overlooked the argument that the influence of such whimsical doubt at the penalty phase is likely to be minimal in light of the highly structured procedure for penalty determination in a capital case. See note 7, supra, discussing the Georgia statutory scheme. Although the jury is instructed to find on the basis of the evidence the presence or absence of mitigating circumstances or statutory aggravating circumstances, we cannot conclude that compromise does not play a role in the jury's deliberations. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). The statutory scheme for capital sentencing is designed to channel the jury's discretion, not to eliminate all interaction among the jurors in which one juror attempts to convince others, based perhaps only upon the presence of whimsical doubt, to vote against the death penalty. Moreover, Georgia's statute expressly permits the jury to recommend mercy. Ga.Code Ann. § 27-2503(b) (1978). Whimsical doubt, therefore, may play an important role
24
Of course, other possibilities remain. One alternative might involve death qualification of all potential jurors for an entire term of court on the first day of the term. The responses of all potential jurors to questions concerning their ability to fairly decide guilt or innocence and to apply the death penalty would be recorded and filed. When a capital case arose on the calendar and a venire was selected, attorneys for both prosecution and defense could exercise their challenges for cause by reference to the juror's prior responses. This procedure would eliminate the necessity of death qualification during voir dire and thereby avoid the guilt proneness taint which, according to the data presented by Smith, results from the very process of such questioning just prior to actual trial. See C. Haney, The Biasing Effects of the Death Qualification Process (1979) (unpublished manuscript)
We do not suggest that this alternative is any more satisfactory than those offered by Smith. Any opinion regarding its constitutional acceptability must await proper presentation and argument before this or another court. We simply offer it by way of illustration that the problem of remedy (and we reiterate the view expressed in note 20 and in text, supra, that we do not concede that there is a constitutional problem in the present system) is a difficult one that has yet to be thoroughly explored.
25
In Taylor the Supreme Court carefully noted the limits of its holding: "Defendants are not entitled to a jury of any particular composition." 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975) (citations omitted). Accordingly, to the extent that Smith's argument is based on the misconception that the sixth amendment guarantees that his particular jury must have a number of death-opposed jurors which is reasonably reflective of the number of such persons in the community, we reject his argument
26
We do not mean to imply that the evidence presented by Smith sets forth a prima facie violation
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). According to Smith, the complete exclusion from the jury of veniremen opposed to capital punishment, as Witherspoon permits, conclusively establishes elements (2) and (3). These two elements, however, deal with the representation of a particular group in venires, not in actual juries. Smith has not alleged or offered to prove that the venire from which his jury was selected did not contain a number of death-opposed veniremen which was fair and reasonable in relation to the number of such persons in the community. Furthermore, we do not decide that veniremen excludable under Witherspoon comprise a "distinctive" group. Compare Spinkellink v. Wainwright, 578 F.2d 582, 597 (5th Cir. 1978) (wherein court assumed arguendo the "distinctiveness" of this group).
27
Incidentally, we observe that the Court's concern in Ballew with the less frequent occurrence of hung juries as jury size diminishes, 435 U.S. at 236, 98 S.Ct. at 1037, is parallel to the concern expressed above with the bifurcated trial procedure suggested by Smith. The detriment in both instances is to the defendant
28
Studies presented by petitioner Smith suggest that blacks and women are disproportionately excluded through death qualification. See Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and the Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.C.R.-C.L.Rev. 53 (1970); P. Ellsworth & R. Fitzgerald, Due Process v. Crime Control: The Impact of Death Qualification on Jury Attitudes (1979) (unpublished manuscript); Louis Harris & Associates, Inc., Study No. 2016 (1971); T. Smith, A Trend Analysis of Attitudes Toward Capital Punishment 1936-1974, reprinted in Studies of Social Change Since 1948 (J. Davis ed.) (National Opinion Research Center Report 127B, Chicago, 1976) (partial summary of various national polls conducted from 1953 through 1978 by Louis Harris & Associates, Inc., American Institute for Public Opinion, & National Opinion Research Center)
29
To the extent Ballew exhibits some concern with the presence of minority viewpoint, we observe, as did the Supreme Court, that this point overlaps the question of jury representativeness. 435 U.S. at 236-37, 98 S.Ct. at 1037. As we discussed above, we are aware of no precedent that grants the accused a constitutional entitlement to the representation of specific viewpoints on his particular jury as long as the accused has a fair chance of obtaining a jury that reasonably reflects a cross-section of the community
30
The allegation in Smith's brief tracks the language used by the petitioner in Spinkellink viz., that the death penalty is "being exacted pursuant to a pattern and practice of Georgia prosecuting authorities, courts, juries and Governors to discriminate on grounds of race, sex and poverty in the administration of capital punishment." Brief for Petitioner-Appellant at 39. Compare Spinkellink v. Wainwright, 578 F.2d 582, 616 n.42 (5th Cir. 1978)
31
In Godfrey the Supreme Court held that the Georgia Supreme Court, in exercising its statutory duty to review capital cases in which the death penalty was imposed, adopted such a broad and vague construction of the aggravating circumstance set forth in Georgia Code Annotated § 27-2534.1(b)(7) (1978) as to violate the eighth and fourteenth amendments
32
Indeed, three times the court took great pains to point out that its rejection of Spenkelink's claim that his death sentence was arbitrarily and capriciously imposed did not preclude as applied attacks on the death penalty statute. 578 F.2d at 606 n.28, 614 n.40, 616 n.42
33
Smith argues that he was prepared to present this proof at a full evidentiary hearing and should have been given the opportunity to do so. Again, he does not explain why this evidence was not submitted in documentary form during the thirty-day extension. See note 2 supra
34
Smith objects that the district court failed to address this issue separately and summarily dismissed it. Although we do not commend a district court's failure expressly to confront substantial issues raised in a habeas petition, it is clear that the trial court found Smith's evidence uncompelling. In any event, Smith's claim is for related reasons without merit
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Affirmed and Memorandum Opinion filed October 6, 2011.
In The
Fourteenth Court of Appeals
____________
NO. 14-10-00330-CR
____________
DENNIS RAY WOMACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1132712
MEMORANDUM OPINION
A jury convicted appellant of the offense of possession with intent to deliver a
controlled substance. On April 1, 2010, the trial court sentenced appellant to confinement
for twelve years in the Institutional Division of the Texas Department of Criminal Justice.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges the legal and factual sufficiency of the
evidence to support his conviction. Specifically, appellant contends that the evidence was
insufficient to affirmatively link him to the controlled substance, cocaine.
Standard of Review
The Texas Court of Criminal Appeals recently determined that the Jackson v.
Virginia 1 standard is the only standard a reviewing court should apply to determine
whether the evidence is sufficient to support each element of a criminal offense the State is
required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894
(Tex.Crim.App.2010) (plurality op.). Accordingly, under current Texas law, in reviewing
appellant's issues we apply the Jackson v. Virginia standard and do not separately refer to
legal or factual sufficiency. Under this standard, we must review all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
In a prosecution for possession of a controlled substance, the State must prove that
the accused exercised care, custody, control, or management over the substance and that
the accused knew the substance was contraband. Tex. Health & Safety Code Ann. §
481.002(38) (Vernon 2010); Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006);
Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). The State does not have to
prove that the accused had exclusive possession of the contraband. Cude v. State, 716
S.W.2d 46, 47 (Tex.Crim.App.1986). Possession can be jointly exercised by more than
one person. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App. – Dallas 2003, no pet.).
When the accused is not shown to have had exclusive possession of the place where the
contraband was found, the evidence must affirmatively link the accused to the contraband.
Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App.1981).
An affirmative link generates a reasonable inference that the accused knew of the
contraband's existence and exercised control over it. Washington v. State, 902 S.W.2d 649,
652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). Affirmative links between
appellant and the contraband may be established by either direct or circumstantial
1
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2
evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). The
evidence must establish the defendant’s connection with the drug was more than fortuitous.
Evans, 202 S.W.3d at 161. However, the link need not be so strong that it excludes every
other reasonable hypothesis except the defendant's guilt. Brown v. State, 911 S.W.2d 744,
748 (Tex.Crim.App.1995). No set formula exists to dictate a finding of affirmative links
sufficient to support an inference of knowing possession of contraband. Isbell v. State,
246 S.W.3d 235, 238 (Tex.App.-Eastland 2007, no pet.); Taylor, 106 S.W.3d at 831. The
number of factors present is not as important as the logical force or the degree to which the
factors, alone or in combination, tend to affirmatively link the defendant to the contraband.
Isbell, 246 S.W.3d at 238.
Factors that may affirmatively link an accused to contraband include: (1) the
defendant’s presence when a search is conducted; (2) whether the contraband was in plain
view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the
defendant was under the influence of the narcotics when arrested; (5) whether the
defendant possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was
an odor of contraband; (10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place where the drugs
were found; (12) whether the place where the drugs were found was enclosed; (13) whether
the defendant was found with a large amount of cash; (14) whether the conduct of the
defendant indicated a consciousness of guilt; (15) the amount of drugs found, and (16)
whether the defendant possessed weapons. Olivarez v. State, 171 S.W.3d 283, 291
(Tex.App.-Houston [14th Dist.] 2005, no pet.); Cuong Quoc Ly v. State, 273 S.W.3d 778,
781 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd); and Porter v. State, 873 S.W.2d 729,
732 (Tex.App.-Dallas 1994, pet. ref'd). These factors are a non-exclusive list. Evans, 202
S.W.3d at 162 n. 12.
3
Evidence at Trial
A search warrant was executed at the home of Shirley Womack, Dennis Womack’s
mother. At that time, only Shirley and her common-law husband, Anthony James
Mooten, were present. Shirley testified Dennis lived there off and on, and otherwise
stayed with friends. In the room that Shirley identified as Dennis’s, a scale was found.
Shirley testified there were two other people who lived in the room. Although Shirley
never saw the men, she heard them in that room and Dennis told her that he had two people
that came from Beaumont.
A hall closet was found locked. Neither Shirley nor Mooten had a key to open the
closet. Shirley testified she did not recall the closet being locked, did not know how long
it had been locked, and she did not have a key. Mooten was searched and he did not have
a key. Forced entry was made with a crowbar.
In the closet, police found cocaine. One rock of crack cocaine was found in the
pocket of a black coat and the rest was found in a bag with the “EXXON” logo on it. The
cocaine weighed 49 grams. According to Officer John Huston, the cocaine had a street
value of $4,900. In another pocket of the black coat, $2,900 in cash was found. A .45
caliber semiautomatic pistol with the serial number scraped off was also in the closet.
Officer Diana Bocangra testified that based on her training and experience, the cash,
weapon, and amount of cocaine seized was evidence of possession with the intent to
deliver.
Also found in the closet were two dry-cleaning receipts dated August 21, 2007, with
the name “Dennis Womack.” The search took place on August 29, 2007. Business
cards with the names of “Dennis Womack” and two other men were on a shelf in the closet.
Shirley identified suits in the closet as belonging to Dennis but testified she had not seen
the “EXXON” bag before and never saw it with Dennis. No fingerprints were found on
anything in the closet.
4
Analysis
The issue is whether the circumstances justify the jury’s conclusion that appellant
exercised care, custody, control, or management over the cocaine, that he knew the matter
possessed was cocaine, and that he possessed the cocaine with intent to deliver it.
Because appellant was not present when the search was conducted, many of the factors set
forth above are not applicable. However, the cocaine was found in a locked closet that
neither of the other occupants of the home could access. In that locked closet were items
identified as belonging to appellant -- his suits and a dry-cleaning receipt with his name on
it that was only eight days old. There was no evidence that anyone else had access to the
closet. In addition to the cocaine, the closet contained other items consistent with drug
trafficking, namely a large amount of cash and a gun. Also, a set of scales was found in
appellant’s room.
Thus the factors linking appellant to the cocaine are: the cocaine was accessible to
appellant; other drug paraphernalia was present; the place where the cocaine was found
was enclosed; in the same enclosed place a large amount of cash and a weapon were found;
and the amount of cocaine seized was significant. We conclude, based on the entire
record, that there were sufficient “affirmative links” established by the State to support the
jury’s finding that appellant knowingly and intentionally possessed the cocaine in question
with intent to deliver. Accordingly, we overrule appellant’s first issue.
MOTION FOR DIRECTED VERDICT
Appellant’s second issue claims the trial court erred in overruling his motion for
instructed verdict because the evidence was insufficient to sustain his conviction.
Because the evidence is sufficient to establish appellant’s possession of the cocaine with
intent to deliver, we conclude the trial court did not err in overruling appellant’s motion for
instructed verdict. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) (if
5
evidence sufficient to sustain conviction there is no error in denying instructed verdict).
Appellant’s second issue is overruled.
MOTION FOR MISTRIAL
In his third issue, appellant asserts the trial court erred in denying his motion for
mistrial. The record reflects appellant moved for a mistrial following the exchange set
forth below.
[The State]: Okay. Now two people were present in this location. Why couldn’t
they just open the door for you?
[Officer Bocangra]: They didn’t have the key.
[The State]: So the two people in the home did not have access to this closet?
[Officer Bocangra]: No. She said it was her son’s
[Defense Counsel]: Judge, I object to that. That is not responsive. –
THE COURT: Sustained.
[Defense Counsel]: And it’s a declaration.
THE COURT: Sustained.
[Defense Counsel]: And I’d ask the jury be instructed to –
THE COURT: The jury is instructed to disregard that last comment.
[Defense Counsel]: And I move for a mistrial.
THE COURT: Denied at this time.
Appellant argues Officer Bocangra’s hearsay testimony “was clearly harmful as
connecting Appellant to the contraband discovered during the search was the critical
issue.” Appellant asserts the instruction to disregard was inadequate and ineffective.
We first note that Officer Bocangra’s unresponsive answer was not the only
evidence connecting appellant to the contraband. Absent this testimony, as set forth
above, there were sufficient affirmative links to support the jury’s verdict.
6
Furthermore, “where prejudicial information in an unresponsive answer is
inadvertently placed before a jury, an instruction by the trial judge to disregard such answer
will be sufficient to cure virtually any error.” Moore v. State, 658 S.W.2d 312, 314-15
(Tex. App. – Houston [1st Dist.] 1983, pet. ref’d) (citing Williams v. State, 643 S.W.2d 136
(Tex. Crim. App. 1982)). “The instruction renders the error harmless, except in extreme
cases where it appears that the improperly admitted evidence is clearly calculated to
inflame the minds of the jury and is of such character as to suggest the impossibility of
withdrawing the impression produced on the minds of the jurors.” Richards v. State, 912
S.W.2d 374, 377-78 (Tex. App. – Houston [14th Dist.] 1995, pet. ref’d).
In this case, the witness’ answer included hearsay and was not responsive to the
question asked by the State. We find the State did not clearly calculate the question and
answer to inflame the jurors’ minds. We also find the answer was not of such a nature that
it was impossible to withdraw the impression produced with an instruction to disregard.
We hold the trial court’s instruction to disregard cured any error. Accordingly, the trial
court did not abuse its discretion by denying appellant’s motion for mistrial. For these
reasons, we overrule appellant’s third issue.
CONCLUSION
Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.
PER CURIAM
Panel consists of Justices Brown, Boyce, and McCally.
Do not publish - TEX. R. APP. P. 47.2(b).
7
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Matter of Royes v City of New York (2016 NY Slip Op 01332)
Matter of Royes v City of New York
2016 NY Slip Op 01332
Decided on February 24, 2016
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 February 24, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
ROBERT J. MILLER
BETSY BARROS, JJ.
2014-09093
(Index No. 26008/11)
[*1]In the Matter of Gavaska Royes, appellant,
vCity of New York, respondent.
William A. Sandback, Mineola, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Andrew G. Owen of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or, in the alternative, to deem a proposed notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated June 24, 2013, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the petition which was for leave to serve a late notice of claim with respect to the claim for malicious prosecution and substituting therefor a provision granting that branch of the petition, and (2) by deleting the provision thereof denying, on the merits, that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging federal civil rights violations and substituting therefor a provision denying that branch of the petition as unnecessary; as so modified, the order is affirmed, with costs to the petitioner.
The petitioner was arrested on August 21, 2010, and charged with, among other things, criminal possession of a weapon in the second degree. Within a few days, the petitioner was released from custody and, on December 6, 2010, the charges against him were dismissed. On or about February 9, 2011, the petitioner served an original notice of claim upon the City of New York alleging claims based on New York State law, such as false arrest and false imprisonment, and a claim alleging federal civil rights violations. The original notice of claim did not explicitly allege a claim for malicious prosecution, but included allegations of the essential facts constituting that claim. A General Municipal Law § 50-h hearing was conducted on May 10, 2011, and on November 18, 2011, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5), inter alia, for leave to serve a late notice of claim. The notice of claim the petitioner sought leave to file explicitly alleged a claim for malicious prosecution. The Supreme Court denied the petition and, in effect, dismissed the proceeding.
The Supreme Court providently exercised its discretion in denying that branch of the petition which was for leave to serve a late notice of claim alleging claims based on New York State law, other than the claim for malicious prosecution. The petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim with respect to those state law claims and for his delay in filing the petition (see Matter of Bhargava v City of New York, 130 AD3d 819, 820; [*2]Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791; Matter of Bell v City of New York, 100 AD3d 990; Matter of Rivera v City of New York, 88 AD3d 1004, 1005). Moreover, the evidence submitted by the petitioner failed to establish that the City had actual knowledge of the essential facts constituting those state law claims within 90 days following their accrual or a reasonable time thereafter (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537). The original notice of claim dated February 9, 2011, served upon the City over 2½ months after the 90 day statutory period for those state law claims had elapsed was served too late to provide the City with actual knowledge of the essential facts constituting those claims within a reasonable time after the expiration of that statutory period (see Matter of Stark v West Hempstead Union Free Sch. Dist., 127 AD3d 765, 766; Matter of Murray v Village of Malverne, 118 AD3d 798, 799; Matter of Valila v Town of Hempstead, 107 AD3d 813, 814). In addition, the petitioner failed to establish that the delays in serving the notice of claim with respect to those state law claims did not substantially prejudice the City in maintaining its defense on the merits with respect to those claims (see Williams v Nassau County Med. Ctr., 6 NY3d at 539).
However, the original notice of claim dated February 9, 2011, provided the City with the essential facts constituting the claim of malicious prosecution, and that notice of claim was timely served with respect to a claim of malicious prosecution (see Matter of Rivera v City of New York, 88 AD3d at 1005; Matter of Ragland v New York City Hous. Auth., 201 AD2d 7, 9). Therefore, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the petition which was for leave to serve a late notice of claim with respect to the claim for malicious prosecution.
That branch of the petition which was for leave to serve a late notice of claim alleging federal civil rights violations should have been denied as unnecessary (see Gorman v Sachem Cent. School Dist., 232 AD2d 452, 453).
LEVENTHAL, J.P., AUSTIN, ROMAN, MILLER and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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NUMBER
13-09-00608-CV
COURT
OF APPEALS
THIRTEENTH
DISTRICT OF TEXAS
CORPUS
CHRISTI - EDINBURG
____________________________________________________________
MARIA DE JESUS
GARCIA, Appellant,
v.
WILFRIDO GARCIA AND
THE LAW FUNDER, LLC, Appellees.
____________________________________________________________
On
appeal from the 449th District Court
of
Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM
OPINION
Before Chief
Justice Valdez and Justices Yañez and Garza
Memorandum Opinion
Per Curiam
Appellant,
Maria de Jesus Garcia, attempted to perfect an appeal from an interlocutory order
entered by the 449th District Court of Hidalgo, County, Texas, in cause no. F-551-05-K.
Appellant filed a notice of appeal from an interlocutory order pursuant to the Texas
Civil Practice and Remedies Code §51.014(a)(1). The notice of appeal refers to
an order signed on October 9, 2009, which modified an order appointing receivers.
The clerk’s record does not contain an order signed October 9, 2009, and the
District Clerk of Hidalgo County informed us that there is no signed order of
October 9, 2009. Upon review of the documents before the Court, it appeared
that the order from which this appeal was taken was not an appealable order.
The
Clerk of this Court notified appellant of this defect so that steps could be
taken to correct the defect, if it could be done. See Tex. R. App. P. 37.1, 42.3. Appellant
was advised that, if the defect was not corrected within ten days from the date
of receipt of this notice, the appeal would be dismissed for want of
jurisdiction. Appellant failed to respond to the Court=s notice.
On
March 3, 2010, the Clerk of the Court notified appellant that she was
delinquent in remitting a $175.00 filing fee. The Clerk of this Court notified
appellant that the appeal was subject to dismissal if the filing fee was not
paid within ten days from the date of receipt of this letter. See id.
42.3(b),(c). Appellant failed to respond to the Court’s notice.
The
Court, having considered the documents on file and appellant's failure to
correct the defect in this matter, is of the opinion that the appeal should be
dismissed for want of jurisdiction. See id. Accordingly, the appeal is
DISMISSED FOR WANT OF JURISDICTION. See id. 42.3(a),(c).
PER
CURIAM
Delivered and filed the
15th day of July, 2010.
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Order entered May 15, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00271-CV
WEH-SLMP INVESTMENTS, LLC, WEHII-SRPOII INVESTMENTS, LLC, AND
WRANGLER ENERGY HOLDINGS II, LLC, Appellants
V.
WRANGLER ENERGY II, LLC D/B/A: (I) WRANGLER II ENERGY AND (II)
WRANGLER ENERGY II HOLDINGS, LLC, Appellees
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-08087
ORDER
Before the Court is appellants’ May 13, 2019 unopposed motion to extend time to file
brief. We GRANT the motion and ORDER appellants’ opening brief be filed no later than June
24, 2019.
/s/ BILL WHITEHILL
JUSTICE
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451 F.2d 1292
The TRAVELERS INSURANCE COMPANY, a Connecticut Corporation,Plaintiff-Appellee,v.Barbara G. FIELDS, Individually and as Administratrix of theEstate of Jan A. Fields, Deceased, Defendant-Appellee,andPhyllis N. Fields, Individually and as Guardian, and JanetMarie Fields, Lori Allison Fields, and Jan ScottFields, minors, Defendants-Appellants,andCharles Paul Wagner, Administrator of the Estate of Jan A.Fields, Deceased, Defendant-Appellee.
No. 71-1164.
United States Court of Appeals,Sixth Circuit.
Dec. 13, 1971.
Leo J. Breslin, Cincinnati, Ohio, for defendants-appellants; John J. O'Hara, Arnold Taylor, for O'Hara, Ruberg & Cetrulo, Covington, Ky., Lindhorst & Dreidame, Cincinnati, Ohio, on brief.
John A. Lloyd, Jr., Cincinnati, Ohio, for appellees; William B. O'Neal, Cincinnati, Ohio, for plaintiff-appellee on brief; John A. West, Cincinnati, Ohio, Stanley Chrisman, Covington, Ky., for defendant-appellee on brief.
Before WEICK, McCREE and KENT, Circuit Judges.
McCREE, Circuit Judge.
1
This is an interpleader action brought pursuant to 28 U.S.C. Sec. 1335 by the Travelers Insurance Company (Travelers) in the United States District Court for the Eastern District of Kentucky. Named as defendants were Barbara G. Fields, widow of the insured and administratrix of his Ohio estate, and Phyllis N. Fields, his first wife and guardian of their children. This appeal has been taken by Phyllis Fields from a judgment in favor of Barbara. We affirm.
2
Jan A. Fields, a citizen of Kentucky, was employed by the Mead Corporation at a plant in Ohio. In May 1960 and December 1964, Travelers issued group insurance policies to Mead, insuring Mead's employees against accidental death. Both policies contained the following provision:
3
This policy is issued and delivered in the State of Ohio and shall be governed by the laws of that state.
4
Jan became insured under these policies in the amount of $103,000. He designated Phyllis, his wife at that time, beneficiary on both policies.
5
Subsequently Phyllis instituted an action for divorce in the Kenton County Circuit Court in Kentucky. Both Phyllis and Jan were citizens of Kentucky and both appeared personally in the action. On September 27, 1966, a divorce decree was entered. As required by K.R.S. Sec. 403.065 (1962), the decree contained a restoration-of-property provision, adjudging that
6
each party shall restore to the other such property not disposed of at the commencement of this action as either may have obtained directly or indirectly from or through the other during said marriage in consideration or by reason thereof.1
7
The property settlement agreement negotiated by the parties was silent concerning the proceeds of the Travelers policies.
8
Thereafter, on June 6, 1967, Jan married Barbara Fields. On September 9, 1969, without having changed the designation of Phyllis as beneficiary, Jan died in an airplane crash. Both Phyllis and Barbara, the latter in her capacity as administratrix of Jan's Ohio estate (he was a citizen of Ohio at his death), claimed the proceeds of the policies.
9
The court below, 323 F.Supp. 387, (E.D.Ky.1970) granted summary judgment in favor of Barbara. Judge Swinford held that, since the Kentucky courts have consistently construed the state's restoration-of-property statute to abrogate the interest of a divorced spouse named as beneficiary even if the designation is not altered on the policy, Phyllis' rights under the Travelers policies were extinguished by the 1966 divorce decree. This decree, Judge Swinford wrote, would be given full faith and credit by Ohio courts "both as to its dissolution of the marriage, and as to its resolution of property rights." Thus,
10
an Ohio court would be impelled to recognize the restoration of property order, which by construction of the laws of the state wherein the divorce was granted, explicitly extinguished [Phyllis'] rights as a beneficiary.
11
He added that, even if the case were to be characterized as a "matter of Ohio contract law," which was Phyllis' contention, "Ohio contract law cannot restore to [Phyllis] those rights which she as a part of her divorce surrendered."On appeal, Phyllis contends that the court erred in its determination that her status as beneficiary was extinguished by the Kentucky divorce decree. She argues that this result violates her rights under the due process clause of the Fourteenth Amendment and offends the dictates of the full faith and credit clause. We consider these contentions in this order.
12
The Kentucky courts have consistently held since 1913 that the restoration-of-property order in a Kentucky divorce decree extinguishes the divorced wife's rights2 as a beneficiary of a life insurance policy on her husband's life despite the failure of the husband to change her designation as such following the divorce.3 Bissell v. Gentry, 403 S.W.2d 15 (Ky.1966); Salisbury v. Bick, 368 S.W.2d 317 (Ky.1963); Warren v. Spurlock's Administrator, 292 Ky. 668, 167 S.W.2d 858 (1943); Schauberger v. Morel's Administrator, 168 Ky. 368, 182 S.W. 198 (1916); Sea v. Conrad, 155 Ky. 51, 159 S.W. 622 (1913). The Bissell case, supra, applied this rule to the divorced wife's rights in a group insurance policy issued, as here, to her husband's employer.
13
Appellant does not dispute this statement of Kentucky law. Her contention is that Kentucky law does not apply in this case because of both the provision in the insurance contract between Travelers and Mead that the contract shall be governed by the law of Ohio and the significant Ohio contacts involved in the issuance and maintenance of the contract. In Ohio, a divorce does not extinguish the rights of the wife named as beneficiary. There, the named beneficiary still recovers the proceeds because the designation "wife" is regarded as merely descriptive. See, e. g., Cannon v. Hamilton, 174 Ohio St. 268, 189 N.E.2d 152 (1963).
14
In support of her contention that Kentucky law does not govern the case at bar, appellant relies principally upon the recent decision of Judge Moynahan of the Eastern District of Kentucky in Morgan v. United States, 315 F.Supp. 213 (E.D.Ky.1969). In that case, the dispute concerned the proceeds of a National Service Life Insurance policy. These policies are issued to veterans of United States military service pursuant to 38 U.S.C. Sec. 701 et seq. Since the Supreme Court has previously construed this Act as requiring that the insurance proceeds go to the named beneficiary, in the context of a dispute between a serviceman's wife in a community property state and the named beneficiaries, Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), the issue presented in Morgan was whether that federal rule took precedence over the Kentucky restoration-of-property doctrine. Judge Moynahan held that the matter was "one involving the primacy of federal law," and awarded the proceeds to the divorced wife named as beneficiary. 315 F.Supp. at 215.
15
Appellant apparently argues that the Morgan decision is based upon principles of comity rather than the supremacy of federal law, and that those same principles would mandate Kentucky's deference in the instant context to Ohio law. We disagree.
16
In Wissner, supra, the widow of a serviceman claimed one-half the proceeds of a National Service Life Insurance policy, although she had not been named beneficiary, on the ground that the state of her domicile was a community property state, under whose law she was entitled to one-half ownership of the policy. The Court reversed the state court's determination that state law took precedence, and held that the congressional purpose in enacting this insurance program would be frustrated if the policy proceeds were not paid to the named beneficiaries. The Court stated:
17
The National Service Life Insurance Act is the congressional mode of affording a uniform and comprehensive system of life insurance for members and veterans of the armed forces of the United States. A liberal policy toward the serviceman and his named beneficiary is everywhere evident in the comprehensive statutory plan. Premiums are very low and are waived during the insured's disability; costs of administration are borne by the United States; liabilities may be discharged out of congressional appropriations.
18
The controlling section of the Act provides that the insured "shall have the right to designate the beneficiary or beneficiaries of the insurance [within a designated class], . . . and shall . . . at all times have the right to change the beneficiary or beneficiaries. . . ." 38 U.S.C. Sec. [717(a)]. Thus Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other. Pursuant to the congressional command, the Government contracted to pay the insurance to the insured's choice. He chose his mother. It is plain to us that the judgment of the lower court, as to one-half of the proceeds, substitutes the widow for the mother, who was the beneficiary Congress directed shall receive the insurance money. We do not share appellee's discovery of congressional purpose that widows in community property states participate in the payments under the policy, contrary to the express direction of the insured. Whether directed at the very money received from the Government or an equivalent amount, the judgment below nullifies the soldier's choice and frustrates the deliberate purpose of Congress. It cannot stand.
19
338 U.S. at 658-659, 70 S.Ct. at 399-400 (emphasis added). In Legatie v. United States, 40 F.R.D. 114, 117 (E.D.N.Y.1966), relied upon by Judge Moynahan in Morgan, the court held that National Service Life Insurance policies are "contracts with the United States," their terms "governed by federal statutes and regulations in determining who is to share in the benefits arising therefrom."
20
These cases merely involve particular applications of the familiar principle that, where the purpose of a federal law requires subordination of state policy, the supremacy clause proscribes application of the state law embodying that policy. See, e.g., Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Franklin National Bank v. New York, 347 U.S. 373, 74 S.Ct. 550, 98 L.Ed. 767 (1954). Cf. Clearfield Trust Company v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). There is, of course, no supremacy clause to mandate the primacy of the policy of one state over that of another state, and it follows that Kentucky is not required to deny application of its law affecting property involved in a divorce in favor of that of Ohio. This is so regardless of the provision in the contracts that they "shall be governed by the laws of [Ohio]." Although that provision might require Kentucky courts to apply Ohio law in the resolution of any dispute about the operation of the insurance contract terms4 even if that application violated Kentucky public policy or contradicted Kentucky law, see, e.g., Union Central Life Insurance Company v. Barnes, 175 Ky. 364, 194 S.W. 339 (1917); Clarey v. Union Central Life Insurance Company, 143 Ky. 540, 136 S.W. 1014 (1911); but see Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941); Dial v. Fisk, 197 S.W.2d 598 (Tex.Civ.App.1946), nevertheless, ordinary principles of conflicts of law should apply to determine what effect the restoration-of-property provision had on the designation of beneficiary. We believe the Kentucky courts would apply Kentucky law and hold that it extinguished appellant's expectancy, and we hold that the district court correctly followed that law and found that there was an involuntary divestiture.
21
Support for this view is found in the opinion of Judge Learned Hand in New England Mutual Life Insurance Co. v. Spence, 104 F.2d 665 (2d Cir. 1939). In that case, the insured, a citizen of New York, named his wife beneficiary of a life insurance policy that was issued and payable in Massachusetts. The couple then moved to Texas, where, upon petition of the insured, they were later divorced. The divorce decree did not mention the policy proceeds. Under New York and Massachusetts law, the decree would not have extinguished the rights of the named beneficiary. In Texas, however, a divorce passed the wife's interest in the policy to her husband since she was deemed no longer to have an insurable interest in his life. The question thus presented was whether New York courts would apply New York (or Massachusetts) law or Texas law in determining the rights of the divorced wife. Or, as Judge Hand phrased the issue, "whether the law of conflict of laws of New York will treat as valid an involuntary transfer of the wife's chose in action, valid by the law of the place where both parties resided." 104 F.2d at 666.
22
The court held that Texas law controlled, stating:
23
There can be no doubt that if the transfer had been voluntary, i. e. by assignment, the courts of New York would follow the law of the place where the assignment took place. Olmsted v. Keyes, 85 N.Y. 593. In this respect insurance policies are no different from other choses in action. Miller v. Campbell, 140 N.Y. 457, 35 N.E. 651; Jackson v. Tallmadge, 216 App.Div. 100, 214 N.Y.S. 528. This is indeed the law generally, Farmers' L. & T. Co. v. Minnesota, 280 U.S. 204, 214, 50 S.Ct. 98, 74 L.Ed. 371, 65 A.L.R. 1000; Restatement of Conflict of Laws, Sec. 350. We can see no reason to distinguish an involuntary transfer, when both parties are present within the state, where the transaction occurs; a fortiori, when they are both domiciled there. There is no magic in consent; the law of the place where an assignment takes place, assigns to it such consequences as it chooses: sometimes it will effectuate the parties' intent; sometimes it will frustrate it. Other states need not of course recognize the effect it gives, and they will not, if it is too offensive to their taste. But otherwise they do; among other reasons, because it avoids a shifting of rights with the forum. Similarly any state in which a nonconsensual transaction occurs-a conviction of felony for example-may attach to it such consequences to the participants as it sees fit. And when the law of the state of the transaction makes it transfer property, we cannot see why other states should balk at recognizing the validity of that transfer as much as though the transaction had been an assignment. The involuntary transfer of chattels at any rate is so recognized. Green v. Van Buskirk, 7 Wall. 139, [70 U.S. 448] 19 L.Ed. 109; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, 23 L.Ed. 1003; Clark v. Williard, 292 U.S. 112, 54 S.Ct. 615, 78 L.Ed. 1160. (semble). The putative transferor must indeed be within the state, but that is implied in saying that he is a participant in the transaction. Nor can we see that the law of the place of performance has anything more to do with the question than when the transfer is by assignment. In both situations the law of the place of performance will indeed determine what is performance; that is, whether the obligor need perform to anyone but the original obligee. But when the obligor is indifferent to the identity of the obligee, so he be discharged, no question of performance arises, and the only relevant issue is as to the validity of the transfer as between the transferor and the transferee.
24
104 F.2d at 666-667.
25
If anything, the instant facts constitute a more appropriate situation than does Spence for application of the fiction of involuntary assignment, as shown by the dissent of Judge Clark in that case. He conceded that phrasing the issue in terms of involuntary transfer mandated the majority's result. It was his contention, however, that no transfer had occurred. The divorce decree did not refer to the policy proceeds, and under Texas law the decree did not in and of itself operate to effect a transfer. The Texas rule of insurable interest, according to Judge Clark, pertained only to proof that under Texas insurance law, the named beneficiary qualified as a beneficiary on a Texas insurance contract. Since the contract in Spence was not a Texas contract, whether the beneficiary properly qualified as such depended on the law of the place of contracting. Thus, Judge Clark felt that Texas courts would not apply Texas insurance law to a New York or Massachusetts policy in the absence, at least, of a Texas statute or a provision in the divorce decree requiring that the divorced wife surrender the rights she may have under the insurance laws of another state. 104 F.2d at 668-669.5 Here, no question exists, in the light of Kentucky cases construing K.R.S. Sec. 403.060(2), whether a transfer occurred, which was the element Judge Clark found to be missing in Spence. Since the general rule is that an assignment of rights under a life insurance policy is governed by the law of the place where the assignment was made, see Anno., 97 A.L.R.2d 1399, 1401 (1964),6 a transfer in Kentucky from appellant to Jan Fields is governed by Kentucky law.
26
Appellant also argues that a holding that the Kentucky statute operated to extinguish her expectancy as named beneficiary violates her constitutional right to due process of law. She places her principal reliance on Home Insurance Company v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), and Hartford Accident & Indemnity Company v. Delta & Pine Land Company, 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178 (1934).
27
In Dick, a Texas citizen sued a Mexican insurance company in Texas to recover on a fire insurance policy insuring a boat in Mexican waters. Jurisdiction was acquired in Texas by garnishment of insurance companies doing business in Texas that had reinsured, by contract with the Mexican company, part of the risk it had assumed. The garnishees denied the existence of a res within Texas, asserting that the plaintiff had not complied with a provision in the insurance policy requiring suit to be brought within one year from the date of loss. This provision was held inapplicable by the Texas courts because of a Texas statute invalidating such limitations. The Supreme Court reversed, holding that the application of the Texas statute to this Mexican insurance policy violated the due process clause of the Fourteenth Amendment.
28
Delta & Pine involved a suit in Mississippi on a policy issued in and governed by the laws of Tennessee. The Mississippi courts refused to give effect to a policy provision limiting the insurer's liability to suits brought within a specified time. This holding was based on a Mississippi statute invalidating such limitation clauses, which was held applicable to the contract under a Mississippi statute deeming insurance contracts on interests in the state to have been made in the state. The contract was an indemnity bond covering an employee of plaintiff at its Mississippi office. The Supreme Court reversed, as in Dick, on the ground that the Mississippi statutes, as construed, violated defendant's due process rights.
29
These cases are inapposite here because Kentucky's contacts are more than sufficient to permit application of her statutes. The Court stressed in Dick that nothing relating to the policy was done in Texas and that Texas laws and courts were invoked only for the bringing of suit. In these circumstances, Texas was
30
without power to affect the terms of contracts so made. Its attempt to impose a greater obligation than that agreed upon and to seize property in payment of the imposed obligation violates the guaranty against deprivation of property without due process of law. . . . [Texas] may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them.
31
281 U.S. at 408, 410, 50 S.Ct. at 341, 342 (emphasis added.) Similarly, in Delta & Pine the Court held that a state "cannot extend the effect of its laws beyond its borders so as to destroy or impair the right of citizens of other states to make a contract not operative within its jurisdiction, and lawful where made." 292 U.S. at 149. Both cases turned on the alteration by the forum state of contractural obligations undertaken outside that state.
32
In the instant case, Travelers does not complain that the Kentucky restoration-of-property statute deprived it of property without due process of law, as did the insurance companies in Dick and in Delta & Pine, because neither its property rights nor its contractual rights and obligations were affected: its liability was clear, a liability that it recognized by instituting this interpleader action and paying the proceeds into court for proper disposition. Appellant, on the other hand, possessed a chose in action that was extinguished. Whether this extinction violated her due process rights depends, in turn, on the nexus between the forum and the interest asserted. Dick, supra. Whatever may have been the nature under Ohio law of appellant's interest in the Travelers policies, the state of Kentucky had the power, because of its jurisdiction over appellant, to assert jurisdiction over that interest. See Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596 (1965); Farmers Loan & Trust Company v. Minnesota, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371 (1930); Blodgett v. Silberman, 277 U.S. 1, 48 S.Ct. 410, 72 L.Ed. 749 (1928); Restatement (Second) of Conflict of Laws Sec. 65 (1971). This is not a case of a state attempting, as in Delta & Pine, supra, "to draw to [itself] control over the obligations of contracts elsewhere validly consummated and to convert them for all purposes into [its] contracts . . . regardless of the relative importance of [its] interests . . . as contrasted with those created at the place of the contract . . ." 292 U.S. at 150, 54 S.Ct. at 636. Kentucky has no interest in defining and construing the contractual obligations; it does, however, have a strong interest in ascertaining and dividing whatever property is possessed by its citizens who are properly before its courts in a divorce action. The Fourteenth Amendment does not require that the state, in adjudicating the division of this property, ignore its own laws and look to the law of each state in which rights to the property originated to determine the effect of the divorce upon those rights.
33
We find no merit in appellant's contention that this result offends the full faith and credit clause, U.S.Const. art. IV, Sec. 1.
34
Finally, this result is by no means inevitable whenever a couple in these circumstances is divorced in Kentucky. Jan Fields could very easily have avoided the effect of the Kentucky restoration-of-property law, which he is presumed to have known, by providing in the property settlement that appellant was to have the proceeds of the Travelers policies or by redesignating her after the decree. By neglecting to do so, he presumably desired the result mandated by the Kentucky statute.
35
The judgment of the District Court is affirmed.
1
K.R.S. Sec. 403.060(2) provides:
(2) Upon final judgment of divorce from the bonds of matrimony, each party shall be restored all the property, not disposed of at the beginning of the action, that he or she obtained from or through the other before or during the marriage and in consideration of the marriage.
This vesting statute is implemented by inclusion of its terms in all divorce decrees rendered in the state, as required by K.R.S. Sec. 403.065:
Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the other has failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing.
2
When the insured reserves the right to change the beneficiary on the policy, as here, under the law of Kentucky and of Ohio the beneficiary's "right" in the policy is not vested but is merely an "expectancy." See McKenty v. Caldwell, 287 Ky. 750, 155 S.W.2d 193 (1941); Stone v. Stephens, 155 Ohio St. 595, 99 N.E.2d 766 (1951)
3
There are two exceptions to this rule, neither of which applies in this case. If the divorced wife paid the policy premiums from her separate funds after the divorce, she may recover the amount she paid from the policy proceeds. Salisbury v. Vick, 368 S.W.2d 317 (Ky.1963). If she paid all the premiums, she may recover all the proceeds. Johnson v. Johnson's Administratrix, 297 S.W.2d 753 (Ky.1956)
4
This choice-of-law provision in the contracts most likely would be given effect by a Kentucky court. See Restatement (Second) of Conflict of Laws Sec. 192, comment h (1971). Moreover, the policies were accepted and administered in Ohio, and the policy premiums were paid in Ohio by the employer. In these circumstances, the relationship between Travelers and Mead, as well as that between Travelers and Jan Fields, is governed by Ohio law. See Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036 (1937); Equitable Life Assurance Society of the United States v. Aaron, 108 F.2d 777 (6th Cir. 1940); Continental Assurance Co. v. Henson, 297 Ky. 764, 181 S.W.2d 431 (1944)
5
Texas courts subsequently did apply this Texas doctrine to insurance contracts made in and governed by the laws of other states, on the ground that it was against the public policy of the state for its courts to award policy proceeds to a beneficiary without an insurable interest. Dial v. Fisk, 197 S.W.2d 598 (Tex.Civ.App.1946); Cole v. Browning, 187 S.W.2d 588 (Tex.Civ.App.1945)
6
On the question of assignment of contract rights, the recently revised Restatement (Second) of Conflict of Laws Sec. 209 (1971) states the rule more broadly:
The validity of an assignment of a contractual right not embodied in a document, which is assignable under the rule of Sec. 208, and the rights created thereby as between the assignor and the assignee are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the assignment and the parties.
This provision does not, however, undercut the rule stated in the text concerning the assignment of rights under an insurance policy, as is illustrated by comment c of Sec. 209:
When the acts of assignment on the part of both assignor and assignee are done in the same state, this state will usually be the state of most significant relationship, except when the place of assignment bears no normal relation to the transaction.
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782 S.W.2d 279 (1989)
Daniel K. TREVINO, Jr. and First Equitable Title Co., Inc., Appellants,
v.
BROOKHILL CAPITAL RESOURCES, INC. and Northeast Houston Properties, Appellees.
No. 01-88-00424-CV.
Court of Appeals of Texas, Houston (1st Dist.).
November 30, 1989.
Rehearing Denied January 18, 1990.
*280 Brent C. Gamble, Houston, for appellants.
Charles J. Jacobus, Jacobus, Boltz & Melamed, Houston, for appellees.
Before EVANS, C.J., and DUNN and MIRABAL, JJ.
OPINION
DUNN, Justice.
This is an appeal from a suit arising out of an escrow account dispute. Appellees Brookhill Capital Resources, Inc. ("Brookhill") and Northeast Houston Properties ("Northeast") retained the Law Offices of Daniel K. Trevino, Jr., P.C. to remove a mechanic's and materialman's lien on their property filed by Ram Associates, Inc. ("Ram"). Trevino, Jr. was also retained to represent appellees in foreclosure proceedings filed by the Federal Home Loan Mortgage Corp. ("FHLMC") and Republic of Texas Savings Association ("Republic") that were triggered by the lien.
First Equitable Title Company, Inc. ("FETCO"), by its vice-president, Daniel K. Trevino III (appellant Trevino, Jr. was FETCO's chairman of the board), entered into an "Escrow Agreement" with the FHLMC, Republic, and Brookhill, whereby FETCO agreed to pay sums deposited by Brookhill, up to $26,000, to Ram to satisfy the lien and forestall the default proceedings initiated by the lenders. Appellees subsequently substituted Michael C. Boltz as counsel, and the Ram lawsuit was settled for $1,900.
After the substitution of counsel, Trevino, Jr. sent a letter to FETCO demanding that legal fees in the amount of $7,127.60 be paid to him out of the escrow account, *281 and attached a statement of services rendered. FETCO sent Northeast and Brookhill an itemized accounting of the escrow account, subtracting $1,900 for settlement of the Ram suit, $7,127.60 for services rendered by the Law Offices of Daniel K. Trevino, Jr., and a fee of $4,000 for services rendered by FETCO. FETCO included a check for the balance, $13,027.60, made payable to Brookhill, Northeast, and their attorney, Boltz. The back of the check included the following condition, "Endorsement herewith constitutes a full and final release of all claims against First Equitable Title Company, Inc." This language was crossed out by Boltz, who endorsed the check, and underneath his signature typed:
Accepted in partial payment of the monies held in escrow by First Equitable Title under protest and without prejudice to any and all rights to collect the balance due in escrow plus interest and with full reservation of our rights to assert claims for the amounts remaining due. Boltz then deposited the check.
Appellees sued Trevino, Jr. individually, the Law Offices of Daniel K. Trevino, Jr., P.C., and FETCO, alleging that Trevino is the alter ego of the corporations, and that Trevino continued to represent Pulver, the owner who sold the property to Brookhill, an interested party to the law suit, and bonded the lien through his alter ego, FETCO. Appellees further alleged Trevino, Jr. breached an implied contract and fiduciary duty by conspiring to advance his own interests at the expense of appellees. Appellees also sought damages for negligent performance of contractual duties. Appellees contend appellant did not effectively represent appellees, and refused to turn the file over to new counsel until threatened with judicial intervention. Appellees also pled for relief under the Deceptive Trade Practices-Consumer Protection Act,[1] punitive damages, and attorney's fees.
After submitting the case to the jury in 19 special issues, the trial court rendered judgment against Trevino, individually, and FETCO. The judgment recited that Brookhill and Northeast shall "have and recover the sum of $16,000, $7,000 of which DANIEL K. TREVINO, JR. is jointly and severally liable with FETCO to Plaintiff...." The court ordered Trevino to pay $16,000 as exemplary damages, and Trevino and FETCO were jointly and severally liable to pay $10,000 in attorney's fees.
In their first four points of error, appellants argue the trial court erred by refusing to hold that the endorsement of the check tendered by FETCO constituted full satisfaction of the disputed amount owed. This Court has previously held that alteration of a debtor's condition from the face of a check is insufficient to defeat the common law rule of accord and satisfaction. Pileco, Inc. v. HCI, Inc., 735 S.W.2d 561, 562 (Tex.App.Houston [1st Dist.] 1987, writ ref'd n.r.e.). Nor may the creditor insert a provision on the instrument that it is accepted only as part payment and without prejudice to his claim for the full payment of the balance. Hixson v. Cox, 633 S.W.2d 330 (Tex.App.Dallas 1982, writ ref'd n.r.e.). "The creditor must repudiate the transaction in toto and return the tendered draft." Pileco, 735 S.W.2d at 562 (citing Stetson-Preston Co. v. H.S. Dodson & Co., 103 S.W. 685 (Tex.Civ.App. 1907, no writ)).
Appellees argue that accord and satisfaction is not applicable because FETCO had a fiduciary relationship with appellees. We agree. An escrow agent owes a fiduciary duty to both parties to a contract. Capital Title Co., Inc. v. Donaldson, 739 S.W.2d 384, 389 (Tex.App.Houston [1st Dist.] 1987, no writ). This fiduciary duty consists of: (1) the duty of loyalty; (2) the duty to make full disclosure; and (3) the duty to exercise a high degree of care to conserve the money and pay it only to those persons entitled to receive it. City of Fort Worth v. Pippen, 439 S.W.2d 660 (Tex.1969). Although the law encourages settlement, it is well settled that a fiduciary must act with utmost good faith and avoid any act of self-dealing that places his personal interest in conflict with his obligations to the beneficiaries. Slay v. Burnett *282 Trust, 143 Tex. 621, 639-40, 187 S.W.2d 377, 387-88 (1945). FETCO's breach of its fiduciary duty to Brookhill supersedes its defense of accord and satisfaction. Thywissen v. Cron, 781 S.W.2d 682 (Tex.App.Houston [1st Dist.], 1989, n.w.h.). The escrow agreement stated that FETCO was authorized to pay out the balance of the funds, after settlement of the claim, to Brookhill, and that FETCO would be held harmless for any acts except for gross negligence or failure to disburse funds pursuant to the agreement. Brookhill agreed to pay FETCO a reasonable fee for services rendered as escrow agent upon presentation of a detailed statement. Under the common law of Texas, and the express terms of the agreement, FETCO breached its fiduciary duty to Brookhill when it paid Trevino's attorney's fee out of the escrow account without the depositor's permission.
Appellants' first four points of error are overruled.
In their fifth point of error, appellants contend that the trial court erred in failing to grant their motion to disregard jury findings on special issues five through 12. Appellants contend that these jury findings are in fatal conflict with the jury's answer to special issue number one, which is reproduced below:
Special Issue No. 1
Do you find from a preponderance of the evidence that there was a breach of the employment agreement by Trevino?
Answer: No
Jury answers five and six found Trevino was negligent and that this negligence was the proximate cause of Brookhill's damages. Jury answers to questions seven, eight and nine addressed appellees' cause of action under the DTPA, finding misrepresentations made by Trevino were the producing cause of Brookhill's damages. Jury answer 10 found Trevino's conduct was unconscionable, knowingly committed, and a producing cause of Brookhill's damages. Answer 11 found Trevino liable for $7,000 in damages to Brookhill, and, in answer 12, $16,000 in exemplary damages. Trevino argues that the jury finding that he did not breach his employment contract for legal services with Brookhill is in fatal conflict with the findings of negligence and knowing misrepresentation. We disagree.
The test to determine if a conflict between jury questions is irreconcilable is, whether one answer would establish a cause of action while the other answer would destroy it. Woodyard v. Hunt, 695 S.W.2d 730, 732 (Tex.App.Houston [1st Dist.] 1985, no writ). The ultimate question is whether the conflict is fatal to the entry of judgment. Id. The trial court has a duty to reconcile conflicting jury findings. Huber v. Ryan, 627 S.W.2d 145 (Tex. 1981). The jury finding that Trevino did not breach the employment agreement to represent Brookhill in its suit against Ram does not exonerate him for the misrepresentations regarding the escrow agreement and the negligent handling of the disbursement of the title company trust funds. The jury answers finding him liable to Brookhill for actual and exemplary damages are not in conflict with the answer to question one.
Appellants' fifth point of error is overruled.
In its sixth and seventh points of error FETCO argues the trial court erred in overruling its objection to special issues three and four because these issues did not instruct or apprise the jury of the standards of liability for gross negligence under the escrow agreement. FETCO further argues that special issues five and six do not use a definition of gross negligence, as required under the terms of the escrow agreement, but only simple negligence. The complained of issues are reproduced below.
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that there was a breach of the escrow agreement by FETCO?
Answer: Yes
SPECIAL ISSUE NO. 4
What amount of money, if any, would compensate Brookhill Capital Resources, *283 Inc. for the benefits lost as a result of the breached escrow agreement?
Answer: $16,000.00
SPECIAL ISSUE NO. 5
"NEGLIGENCE," with reference to the conduct of Trevino and FETCO, means the failure to use ordinary care; that is, failure to do that which an attorney and escrow agent, respectively, of ordinary prudence would have done under the same of [sic] similar circumstances or doing that which an attorney or escrow agent of ordinary prudence would not have done under the same or similar circumstances.
"ORDINARY CARE," with reference to the conduct of Trevino and FETCO, means that degree of care that an attorney and escrow agent, respectively, of ordinary prudence would use under the same or similar circumstances.
Do you find from a preponderance of evidence regarding the occurrence in question that the following were negligent?
Answer "Yes" or "No"
A. Trevino yes
B. FETCO yes
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that such negligence is the proximate cause of damage to Brookhill Capital Resources, Inc.
Answer "Yes" or "No"
A. Trevino yes
B. FETCO yes
Only answer Issue No. 6 for those parties that you answered "Yes" to in Issue No. 5.
As we have discussed above, the escrow agreement exonerated FETCO for acts committed under the agreement, except for gross negligence or failure to disburse the deposited funds as directed. Error in the jury charge is reversible only if, when viewed in the totality of the circumstances, it amounted to a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex.1986); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 815 (Tex.App. Houston [1st Dist.] 1987, writ ref'd n.r.e.); Tex.R.App.P. 81(b)(1). The agreement provided that FETCO would be liable only for gross negligence or failure to disburse funds in accordance with the agreement. The evidence supports a finding that FETCO did not disburse the deposited funds according to the terms of the agreement. The jury found FETCO breached the escrow agreement. The trial judge, in rendering judgment upon a special issue verdict, must construe such verdict as a whole in light of the pleadings and the evidence. Stadler v. Bowen, 373 S.W.2d 824, 828 (Tex.Civ.App.Dallas 1964, writ ref'd n.r. e.). The evidence and jury finding support the court's judgment.
Appellants' sixth and seventh points of error are overruled.
In the eighth point of error, Trevino, Jr. argues the trial court erred in holding him personally liable because the jury's answer to special issue number one found he had not breached the employment agreement, and the jury did not make a finding that FETCO was Trevino's alter ego. We have already discussed Trevino's argument that the answer to special issue one is in fatal conflict with other answers. We disagree with Trevino's assertion that he may be held personally liable only by piercing FETCO's corporate shield. The jury findings that Trevino was negligent, misrepresented his services, and unconscionably and knowingly committed these acts, which were the producing cause of a portion of Brookhill's damages, are sufficient to sustain the trial court's judgment. Stadler, 373 S.W.2d at 824.
Appellant's eighth point of error is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Tex.Bus. & Com.Code secs. 17.41-17.63 (Vernon 1987).
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FILED
NOT FOR PUBLICATION APR 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEZHONG TIAN, No. 09-70144
Petitioner, Agency No. A099-047-161
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Dezhong Tian, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, applying the new standards governing adverse
credibility determinations created by the Real ID Act. Shrestha v. Holder, 590
F.3d 1034, 1039 (9th Cir. 2010). We deny the petition for review.
The BIA reasonably concluded Tian’s testimony was non-responsive to
several questions, appeared to be memorized, and lacked detail regarding his
religious practice in the United States. See id. at 1048 (adverse credibility finding
reasonable under totality of circumstances). Therefore, the record does not compel
the conclusion Tian was credible. See Don v. Gonzales, 476 F.3d 738, 745 (9th
Cir. 2007). In the absence of credible testimony, Tian’s asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, substantial evidence supports the agency’s denial of CAT protection
because Tian’s CAT claim is based on the same statements the agency found not
credible, and there is no other evidence in the record that would compel a finding it
is more likely than not he would be tortured if returned to China. See id. at 1156-
57. Accordingly, Tian’s CAT claim fails.
PETITION FOR REVIEW DENIED.
2 09-70144
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Filed 11/5/15 P. v. Nieves CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B249986
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA397107)
v.
JOSE NIEVES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Jose I. Sandoval, Judge. Reversed and remanded.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for
Plaintiff and Respondent.
_____________________________________________
Defendant and appellant, Jose Nieves, raises a sentencing issue after his
conviction of criminal threats, possession of a firearm by a felon, and assault with
a semiautomatic firearm, with prior serious felony conviction, prior prison term and
firearm use enhancements (Pen. Code §§ 422, 29800, 245, 667, subds. (a)-(i), 667.5,
12022.5).1 The trial court sentenced Nieves to a 19-year prison term.
The judgment is reversed and remanded for further proceedings.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
Defendant Nieves lived in a converted garage in the back yard of Diana
Cabrera’s house. Around midnight on April 29, 2012, Cabrera heard gunshots coming
from the direction of the converted garage. She looked outside and saw Nieves in the
backyard. About 30 minutes later, Nieves walked into the house with a gun and put it
on the kitchen counter. Cabrera yelled, “ ‘He has a gun.’ ”
Jason Griffin, a friend of Cabrera’s son, was sleeping on the living room couch
and he awoke when Cabrera screamed. Because he was terrified that Nieves was
moving around the house with a gun, Griffin “started praying pretty loud.” Nieves got
irate, threw Griffin’s Bible on the floor, pointed the gun at Griffin, and threatened to kill
him.
Griffin left the house, went to a nearby pay phone and called the police. The
responding officer went back to Cabrera’s house with Griffin. One of Cabrera’s sons
told the officer where to find Nieves’s gun.
CONTENTION
Nieves contends there was insufficient evidence that his Florida arson conviction
constituted a prior serious felony conviction under section 667, subdivision (a).
1
All further references are to the Penal Code unless otherwise specified.
2
DISCUSSION
1. Background.
Section 667, subdivision (a)(1), provides that “any person convicted of a serious
felony who previously has been convicted of a serious felony in this state or of any
offense committed in another jurisdiction which includes all of the elements of any
serious felony, shall receive, in addition to the sentence imposed by the court for the
present offense, a five-year enhancement for each such prior conviction on charges
brought and tried separately. The terms of the present offense and each enhancement
shall run consecutively.”
As part of Nieves’s sentence, the trial court imposed two five-year section 667,
subdivision (a), enhancement terms: one for a 2002 Florida arson conviction, and one
for a 2003 California conviction for shooting at an occupied residence. Nieves contends
there was insufficient evidence to prove that his Florida arson conviction constituted
a serious felony for sentencing purposes because that crime was not the equivalent of
a California arson conviction.
Section 667, subdivision (a)(4), provides: “As used in this subdivision, ‘serious
felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”
Section 1192.7, subdivision (c)(14), lists “arson.” California arson is defined by
section 451 as follows: “A person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned or who aids, counsels, or
procures the burning of, any structure, forest land, or property.” In pertinent part, the
Florida arson statute provides that arson is committed by “[a]ny person who willfully
3
and unlawfully, or while in the commission of any felony, by fire or explosion, damages
or causes to be damaged” any of a list of specified structures.2
One of the methods for determining if Nieves’s Florida arson conviction
constituted a violation of California’s arson statute is by strict application of the “least
adjudicated elements test,” which involves a comparison of the statutory elements of the
two crimes. “Under our sentencing laws, foreign convictions may qualify as serious
felonies, with all the attendant consequences for sentencing, if they satisfy certain
conditions. For a prior felony conviction from another jurisdiction to support
a serious-felony sentence enhancement, the out-of-state crime must ‘include[ ] all of the
elements of any serious felony’ in California. (§ 667, subd. (a)(1).)” (People v. Warner
(2006) 39 Cal.4th 548, 552.) The first step is to “determine what elements are required”
under the foreign state’s law, and the second step is to determine “whether that crime
contains all of the elements of a qualifying serious felony in California.” (Id., at
pp. 553, 556.)
If this facial comparison of statutory elements does not resolve the issue,
however, then resort may be had to the defendant’s underlying record of conviction.
“Just as it may do when the prior conviction was suffered in California (People v.
Guerrero (1988) 44 Cal.3d 343 . . .), the trier of fact may consider the entire record of
2
Section 806.01, Florida Statutes, provides:
“(1) Any person who willfully and unlawfully, or while in the commission of
any felony, by fire or explosion, damages or causes to be damaged: [¶] (a) Any
dwelling, whether occupied or not, or its contents; [¶] (b) Any structure, or contents
thereof, where persons are normally present, such as: jails, prisons, or detention
centers; hospitals, nursing homes, or other health care facilities; department stores,
office buildings, business establishments, churches, or educational institutions during
normal hours of occupancy; or other similar structures; or [¶] (c) Any other structure
that he or she knew or had reasonable grounds to believe was occupied by a human
being, [¶] is guilty of arson in the first degree . . . .
“(2) Any person who willfully and unlawfully, or while in the commission of
any felony, by fire or explosion, damages or causes to be damaged any structure,
whether the property of himself or herself or another, under any circumstances not
referred to in subsection (1), is guilty of arson in the second degree . . . . ”
4
the proceedings leading to imposition of judgment on the prior conviction [from an
out-of-state jurisdiction] to determine whether the offense of which the defendant was
previously convicted involved conduct which satisfies all of the elements of the
comparable California serious felony offense.” (People v. Myers (1993) 5 Cal.4th 1193,
1195.)
2. The “malice” element of California arson.
Nieves argues that California arson is a more narrow offense than Florida arson
because, whereas California arson requires the defendant to have “willfully and
maliciously” set a fire, Florida arson only requires the defendant to have “willfully and
unlawfully” set a fire. Nieves asserts: “Florida’s statute simply requires one to act
unlawfully as opposed to the California statute which requires one to act maliciously.
This distinction is crucial.”
Upon examination, however, this turns out to be a distinction without a
difference. While the Florida legislature abandoned a once-required malice element
because it was too hard to prove, California courts have interpreted “malice” in the
arson context to mean only the intentional igniting of a fire source in circumstances that
naturally and probably would result in the burning of a structure or property.
Before 1979, one of the elements of Florida arson was malice. (See Love v. State
(1932 Fla.) 144 So. 843, 844 [“A ‘malicious’ burning . . . would be such an act done
with a condition of mind that shows a heart regardless of social duty and bent on
mischief, evidencing a design to do an intentional wrongful act toward another, or
toward the public, without any legal justification or excuse . . . . ”].) However, under
that statute, “arson convictions were difficult to obtain because of the problems inherent
in proving malice, i.e., the defendant’s evil intent. . . . [¶] In order to alleviate this
problem, the Legislature substituted the word ‘unlawfully’ for the word ‘maliciously.’
Under this new wording the State need not prove an evil intent on the part of the
perpetrator. It need only be shown that the willful act was done without a legitimate,
lawful purpose.” (Lofton v. State (1982 Fla.App. 4 Dist.) 416 So.2d 522, 523; see, e.g.,
Berry v. State (Fla.App. 1 Dist.,1990) 566 So.2d 22, 24 [in prosecution for burning
5
appellant’s own home to collect property insurance: “With regard to the ‘unlawfulness’
element, the state only needed to show that the willful act was done without
a legitimate, lawful purpose.”].)
Although the California arson statute contains a malice element, it has been
construed to mean only the intentional ignition of a fire source in circumstances that
naturally and probably would result in the burning of a structure or property. “Arson’s
malice requirement ensures that the act is ‘done with a design to do an intentional
wrongful act . . . without any legal justification, excuse or claim of right.’ [Citation.]
Its willful and malice requirement ensures that the setting of the fire must be
a deliberate and intentional act, as distinguished from an accidental or unintentional
ignition or act of setting a fire . . . . Thus, there must be a general intent to willfully
commit the act of setting on fire under such circumstances that the direct, natural, and
highly probable consequences would be the burning of the relevant structure or
property. [Citations.]” (People v. Atkins (2001) 25 Cal.4th 76, 88-89.) Hence, our
Supreme Court held in In re V.V. (2011) 51 Cal.4th 1020, 1030, that two minors who set
off a firecracker on a dry hillside, causing a forest fire, committed arson: “Although
[the minors] did not intend to set the hillside on fire, they knew that their intentional
acts created a fire hazard.”].)3
3
In re V.V. explained that this analysis depended on the concept of “malice in
law”: “The statutory definition of arson is derived from the common law crime of arson
as a willful and malicious burning. [Citation.] Although ‘[m]alice as universally
understood by the popular mind has its foundation in ill-will’ [citation], it need not take
the form of malevolence or ill will. [Citations.] Malice in fact – defined as ‘a wish to
vex, annoy, or injure’ [citation] – consists of actual ill will or intent to injure.
[Citations.] However, ‘ “[t]here is still another malice, the presumption of the existence
of which is raised by the law in certain cases upon certain proofs.” ’ [Citation.] This
type of malice – malice in law – is defined . . . as ‘an intent to do a wrongful act,
established either by proof or presumption of law.’ [Citations.] Malice in law may be
‘presumed’ or ‘implied’ from the intentional doing of the act without justification or
excuse or mitigating circumstances. [Citations.] [¶] In determining whether the second
type of malice (‘intent to do a wrongful act’) is established for arson, malice will be
presumed or implied from the deliberate and intentional ignition or act of setting a fire
6
Thus, the “malice” element of California arson is satisfied by Florida’s
requirement that the defendant have “willfully and voluntarily” set a fire.
3. Explosions and unintentional fires.
However, the Florida and California arson statutes do differ in at least two
respects: (1) the Florida statute appears to include unintentionally-caused fires in
certain situations because it covers acts done “willfully and unlawfully, or while in the
commission of any felony,” and (2) the California arson statute only covers a defendant
who “willfully and maliciously sets fire to or burns,” whereas Florida arson includes
causing damage “by fire or explosion.”
As the least adjudicated elements test alone does not prove that Florida arson is
a serious felony, the Attorney General argues the trial court properly resolved this
question by examining a probable cause affidavit that was part of the Florida record of
conviction: “Respondent submits the least adjudicated elements test need not be
resorted to because the evidence presented with regard to the Florida arson conviction
established that appellant’s conduct satisfied all the elements of arson under California
law.” The Attorney General asserts: “[B]ased on the contents of [the probable cause
affidavit], there is no question that appellant’s conduct in the Florida case constituted
arson under California law. As the document describes, appellant entered a residence
and ‘set a fire within [the] structure.’ An investigation revealed [a] ‘burn pattern’ at the
scene of the fire and ‘ignitable liquid’ on appellant’s clothing. This was sufficient
evidence to support a finding that appellant’s conduct involved willfully and unlawfully
causing damage by fire, consistent with California law.”
Nieves argues the trial court’s attempt to divine the nature of the conduct
underlying his Florida arson conviction by examining the probable cause affidavit was
improper because “[t]he Sixth Amendment . . . precludes the court from enhancing
a sentence based on facts about prior conduct not admitted by the defendant or implied
without a legal justification, excuse, or claim of right. [Citations.]” (In re V.V., supra,
51 Cal.4th at p. 1028.)
7
by the elements of the offense.” Nieves cites Descamps v. United States (2013)
133 S.Ct. 2276, [186 L.Ed.2d 438] (Descamps), which explained why a trial court’s
prior-conviction “conduct” determination violates the defendant’s Sixth Amendment
right to a jury trial. As Descamps said, “We have held that ‘[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) (Apprendi).” (Descamps v. United States, supra, 133 S.Ct. at p. 2288.)
As we will explain, Nieves is correct.
The record on appeal in this case contains the following documents from the
State of Florida relating to Nieves’s arson conviction: (1) a packet of documents from
the Florida Department of Corrections which includes the criminal information (which
merely recites that Nieves was charged with a violation of section 806.01(1)(a), in that
he “did willfully and unlawfully, or while in the commission of any felony, by fire or
explosion, damage . . . a dwelling”), and a copy of the Florida judgment, which merely
recites that Nieves pled no contest to “arson of dwelling” in violation of 806.01(1)(a).4
There is no record of the plea taking or any admissions by Nieves to a factual basis for
his no contest plea. The only part of the record that arguably revealed the conduct
underlying his Florida conviction was a probable cause affidavit apparently prepared by
a Florida State Fire Marshal. It alleged that “[a]t the above residence [Nieves] did enter
through a window and remained inside to set a fire within this structure. [¶] An
investigation of the fire scene by Bradenton F.D. showed the burn pattern and
tracking . . . to reveal this was an incendiary fire in nature and an act of arson [1st
degree] . . . . [A]n ignitable liquid was detected . . . on the defendant’s clothes” and
there were “superficial burns to the defendant’s forearms.” The probable cause affidavit
also stated: “Defendant was interviewed . . . but he denied any involvement.”
4
The name “Jose Cabrera” appearing in the Florida records was an alias.
8
Until recently, it would have been considered proper for the trial court to
examine the probable cause affidavit in order to determine the conduct underlying
Nieves’s Florida arson conviction. “[F]or years trial courts in California have been
allowed to determine whether a prior conviction qualifies as a strike by looking to the
‘entire record of conviction.’ [Citations.] But in Descamps, supra, 133 S.Ct. 2276, the
United States Supreme Court pointed out the constitutional problems in doing so.”
(People v. Saez (2015) 237 Cal.App.4th 1177, 1199.) Agreeing with Saez, the Court of
Appeal in People v. Marin (2015) 240 Cal.App.4th 1344, 1362, concluded: “Descamps
leaves no true room for debate that this type of factfinding violates the Sixth
Amendment.”
In order to avoid Sixth Amendment problems, Descamps set forth the limited
trial court inquiry that is permissible: “First, a sentencing court must determine whether
the statute under which a defendant was previously convicted is ‘ “divisible,” ’ that is,
one that ‘sets out one or more elements of the offense in the alternative,’ or
‘ “indivisible,” ’ that is, ‘one not containing alternative elements.’ [Citation.] If the
statute is indivisible, the “ ‘categorical approach” limits the inquiry to a comparison of
the elements of the original statute [here, Nieves’s Florida arson conviction] and the
generic crime [here, California arson], and ‘only if the statute’s elements are the same
as, or narrower than, those of the generic offense’ can an enhancement be
imposed . . . . If, however, a statute is divisible, the ‘ “modified categorical
approach” ’ . . . permits sentencing courts to consult a limited class of documents, such
as indictments and jury instructions, to determine which alternative formed the basis of
the defendant’s prior conviction. The court can then do what the categorical approach
demands: compare the elements of the crime of conviction (including the alternative
element used in the case) with the elements of the generic crime.’ [Citation.]” (People
v. Saez, supra, 237 Cal.App.4th at pp. 1202-1203.)
As Descamps itself stated: “To explain when courts should resort to [the
modified categorical approach], we hypothesized a statute with alternative elements –
more particularly, a burglary statute (otherwise conforming to the generic crime) that
9
prohibits ‘entry of an automobile as well as a building.’ [Citation.] One of those
alternatives (a building) corresponds to an element in generic burglary, whereas the
other (an automobile) does not. In a typical case brought under the statute, the
prosecutor charges one of those two alternatives, and the judge instructs the jury
accordingly. So if the case involves entry into a building, the jury is ‘actually required
to find all the elements of generic burglary,’ as the categorical approach demands.
[Citation.]. But the statute alone does not disclose whether that has occurred. Because
the statute is ‘divisible’ – i.e., comprises multiple, alternative versions of the
crime - a later sentencing court cannot tell, without reviewing something more, if the
defendant’s conviction was for the generic (building) or non-generic (automobile) form
of burglary. Hence [we] permitted sentencing courts, as a tool for implementing the
categorical approach, to examine a limited class of documents to determine which of
a statute’s alternative elements formed the basis of the defendant’s prior conviction.”
(Descamps v. United States, supra, 133 S.Ct. at p. 2284, italics in original.)
That “limited class of documents” had been set out in Shepard v. United States
(2005) 544 U.S. 13, 16 [125 S.Ct. 1254]: “The question here is whether a sentencing
court can look to police reports or complaint applications to determine whether an
earlier guilty plea necessarily admitted, and supported a conviction for, generic
burglary. We hold that it may not, and that a later court determining the character of an
admitted burglary is generally limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Shepard held that the trial
court’s inquiry “is limited to the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some comparable judicial
record of this information.” (Id., at p. 26.) These are the so-called “Shepard-approved
documents.”
The Florida arson statute is broader than the California arson statute, and it is
divisible. As explained above, it can be violated in several alternative ways, some of
10
which would not violate the California arson statute. The probable cause affidavit from
Nieves’s Florida arson conviction – which is not a Shepard-approved document – could
not be relied upon by the trial court to determine which of the alternative ways of
committing Florida arson was the basis for Nieves’s no contest plea. The probable
cause affidavit contains nothing more than allegations by a Fire Marshal about Nieves’s
conduct. No evidence from the plea colloquy was admitted which might demonstrate
that Nieves later admitted the truth of any of these allegations. Therefore, the probable
cause affidavit merely presents some information as to what Nieves’s conduct might
have been, but nothing about what he actually pled guilty to. (See, e.g., United States v.
Marcia-Acosta (9th Cir. 2015) 780 F.3d 1244, 1255 [“[T]he Shepard documents in this
case at most suggest that [defendant] committed the crime of intentional aggravated
assault. They do not show that Marcia-Acosta was convicted of that crime.”].)
Hence, there was insufficient evidence to sustain the trial court’s finding that
Nieves’s Florida arson conviction was a serious felony for purposes of a section 667,
subdivision (a), enhancement.
However, because retrial of a prior conviction allegation after a reversal for
insufficient evidence is permissible (see Monge v. California (1998) 524 U.S. 721, 734
[118 S.Ct. 2246]; People v. Marin, supra, 240 Cal.App.4th at p. 1365), we will remand
this case to the trial court for further proceedings.
11
DISPOSITION
The judgment is reversed and remanded for further proceedings. The judgment
is reversed as to the true finding on the prior serious felony conviction allegation arising
out of Nieves’s Florida arson conviction. The case is remanded to the trial court for
further proceedings. If the People elect to retry the allegation, the parties should be alert
to Nieves’s Sixth Amendment jury trial rights. In any event, the trial court shall
resentence Nieves.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
WE CONCUR:
ALDRICH, J.
KITCHING, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
12
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/14/15 In re Edith E. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re EDITH E. et al., Persons Coming B258363
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK83508)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
EDITH Z.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Julie Fox
Blackshaw, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Melinda A. Green, Deputy County Counsel, for Plaintiff and Respondent.
——————————
Edith Z. (mother) appeals from the trial court’s jurisdictional and dispositional
findings regarding her two minor children, Edith E. and Isaiah E. We affirm.
BACKGROUND
The Los Angeles Department of Children and Family Services (DCFS) filed a
petition on June 4, 2014, alleging against Henry E. (father) under Welfare and Institutions
Code section 300, subdivisions (a), (b), and (j)1 that he had physically abused then seven-
year-old Edith,2 engaged in a violent altercation with his female companion, Bertha E.,
and abused alcohol while Edith and her brother Isaiah, who was five at the time, were
under his care and supervision. This endangered the children.3 As to mother, the petition
alleged under section 300, subdivisions (b), that she had a history of substance abuse and
was a recent user of methamphetamine and marijuana including while the children’s half-
sibling Gabriela Z. was under her care, rendering her unable to provide regular care of the
children, with whom she had failed to reunify due to her substance abuse. The petition
also alleged under subdivisions (d) and (j) that mother allowed the children’s half-sibling
Gabriela Z. to live in the home of maternal grandmother and her male companion, who
had abused mother sexually when she was a minor, which failure to protect also
endangered Edith and Isaiah.
The detention report stated that the children had been placed in foster care. A
prior petition filed in August 2010 and sustained in October 2010 stated that mother and
her male companion had a history of engaging in violent altercations in which the male
companion choked and struck mother, who failed to protect the children; mother had a
history of substance abuse and abused marijuana; mother left Edith and Isaiah in the care
of unrelated adult females without an appropriate plan for care and supervision; and
mother and father engaged in violent altercations in front of the children, resulting in
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 For ease of reference, we use the children’s first names only hereafter.
3Father is not a party to this appeal, and we therefore detail the allegations against
him only as necessary.
2
Father’s arrest and conviction for domestic violence under Penal Code section 273.5,
subdivision (a). In August 2011, the court ordered the children placed in the home of
father, and ordered in November 2011 that DCFS was to continue to provide mother with
reunification services.
Another prior petition in June 2012 alleging that father had a history of alcohol
abuse, and was under the influence while caring for the children, had been sustained in
July 2012. Father successfully reunified and the children were returned to father’s home
in February 2013. In February 2014, a family law order granted mother and father joint
legal custody, primary residence and sole physical custody to father, and monitored
visitation to mother at least three hours per week.
Father told the social worker that mother’s last contact with the children was in
April 2014, when mother kidnapped the children; after they were returned to him, he
obtained a restraining order against mother. Father did not know mother’s whereabouts.
He denied any abuse of Edith, or of his girlfriend. Father’s girlfriend Bertha told the
social worker she had been living with him for six months, and he drank excessively,
became verbally abusive, and had put his hands around her neck and threatened to choke
her. She denied any knowledge that he abused Edith. Edith, who had a red mark below
her left eye, told the social worker that father had grabbed her by the hair and pulled her
into the house from the outside, pushed her into a table where she banged her spine, and
slapped her on the right side of her face and on the top of her head. When Bertha (whom
Edith called “mom”) came into the living room, father stopped. Father had also hit her
once with a belt. Edith was afraid of father and wanted to live with Bertha. Isaiah told
the social worker he was in the room when father hit Edith on the face and on the hip.
Otherwise, father had not abused him or Edith.
Mother had an open DCFS case regarding her daughter Gabriela Z. from another
relationship, born in 2012. Gabriela Z. was in foster care and mother was receiving
family reunification services. Mother stated she was complying with court orders in
Gabriela Z.’s case to regain custody. She also planned to seek custody of Edith and
Isaiah, with whom she had had a monitored visit two weeks earlier.
3
After a hearing on June 4, 2014 at which mother and father were present, Edith
and Isaiah were ordered detained. Mother and father received monitored visits for at
least three hours per week.
A jurisdiction/disposition report filed July 16, 2014 stated that Isaiah told the
social worker he wanted to live with father, but did not call mother his mother because
“[he] get[s] confused,” and he called Bertha “Mom” instead. He did not want to visit
with mother because father said “‘she has a lot of boyfriends.’” Isaiah nodded when
asked if father had ever hit him with a belt or a hand, but said he did not remember how
long ago. Edith told the social worker she did not remember why father had pulled her
by the hair into the living room, pushed her into a table, and hit her on the face. She
stated that father hit her with a belt once and that he hit Isaiah with a belt on his back and
legs when he misbehaved. Edith had seen father drink big cans of beer and wanted him
to stop, because “‘[h]e doesn’t hit [them] when he’s not drinking.’” Edith also stated that
she had heard father and Bertha argue about mother, saying that she had a lot of
boyfriends. Edith had seen father grab Bertha around the neck, but not squeeze; Bertha
did not hit her or Isaiah. Edith wanted to live with mother.
Mother told the social worker that she only knew what the children told her, that
father had gotten angry at Edith, grabbed her by the hair, and hit her in the face. Edith
also told mother that father hits them with his hand and with a belt. Mother stated she
had used marijuana and methamphetamine, but had been sober since November 2013.
Mother went to jail for fighting with a girl whose phone had been stolen by Gabriela Z.’s
father, and admitted leaving Gabriela Z. with her mother and her boyfriend although she
knew the boyfriend was a sexual abuser; “‘[mother] thought [Gabriela Z.] was safe with
[mother’s] mom.’” Mother broke up with father because he drank and was abusive.
Mother was 26, unemployed, and living on general relief ($300 a month) and food
stamps.
Father, 41, denied doing more than grabbing Edith when she ran outside, and said
he never abused Bertha. They argued, but that was because mother came over and
caused problems. He had stopped drinking when he regained custody of the children.
4
Father said mother was using drugs when he met her and still was using now, and “‘that’s
why she doesn’t have her kids.’” They broke up because mother “‘uses
crystal’” . . . “‘[s]he even kidnapped the kids from me and I had to get away from that.’”
The children’s monitored visits with mother went well and the children were
comfortable with her, although Isaiah initially did not want to visit with mother, saying
she had many boyfriends and would leave. Edith was more receptive to mother than to
father. Mother stated she had completed parenting classes and was participating in
domestic violence and substance abuse classes.
The report recommended that Edith and Isaiah be named dependents and suitably
placed. In addition to the physical abuse of Edith when father slapped her and pushed
her, he had hit both Edith and Isaiah with a belt on earlier occasions. Father also abused
alcohol, and there were multiple prior petitions on that basis. Further, father had
physically abused Bertha in the presence of the children.
Placement with mother was not safe, as they had been previously detained due to
general neglect and mother had failed to reunify. The petition regarding mother’s neglect
and failure to protect Gabriela Z., the children’s half-sister, had been adjudicated on May
2014. Mother also had an unresolved history of substance abuse that had been the subject
of prior petitions. The report recommended that both mother and father be provided
family reunification services.
In a last minute information on July 30, 2014, the social worker reported that there
were concerns that the foster mother for Edith and Isaiah was allowing mother and father
to have unmonitored visitation in exchange for money. DCFS did not recommend
unmonitored visits. A social worker had learned that at Edith’s last visit with father, he
had asked her to write a letter saying that the slap in the face and the rest of the incident
was an accident. Edith wanted someone in the room during visits.
Another last minute information on July 31, 2014 informed the court that mother’s
substance abuse counselor reported that Mother participated and continued to do well,
with one session remaining. After that mother would be referred to aftercare for up to a
year. Mother had submitted to five drug tests, all negative, and had completed 12 of 12
5
parenting classes. She had not, however, enrolled in individual therapy, obtained a
sponsor, or developed a sobriety support, and therefore was not in full compliance with
the court ordered disposition. Mother’s housing situation continued to change. She had a
history of moving from motel to motel, and the social worker had been told that mother
recruited for solicitation purposes. Gabriela Z.’s father reported that mother had an
Internet web site where she displayed herself for money, and reported that mother was a
prostitute, although DCFS had no information regarding mother’s source of income.
DCFS recommended that mother’s visitation continue to be monitored by a DCFS
approved monitor.
Jurisdiction/Disposition hearing
Mother testified at the July 31, 2014 hearing. She testified she was enrolled in
individual counseling and had completed five sessions, telling the therapist that the
children got taken away because she went to jail for fighting and her baby got taken
away, and she had a drug problem a couple years ago. She did not have a sponsor
because she haven’t really been looking for one. She did not display herself for money
on a website and was not a prostitute. She lived in a room she rented from a friend, and if
her children were returned they would stay there temporarily until she got a bigger place.
She had been working at Togo’s for about a week. Mother denied paying the caretaker to
have unmonitored visits or having any unmonitored contact with the children.
On cross-examination, she admitted she did not know whether her counselor was
approved by DCFS, and that she took methamphetamine in 2013. In November 2013
when she went to jail for fighting it was because she was a felon on probation. Earlier,
her other child’s father had stolen a phone, and because the phone was in the car she was
driving they both had gone to jail for robbery. The day of the hearing would have been
her third day working at Togo’s. Her last job before that was in 2009 or 2010 at
Quizno’s. When the earlier case terminated, she had had visitation with the children once
a week, monitored by father. She denied kidnapping the children, saying father had
called to ask her to pick up the children because he and his girlfriend were fighting; she
believed she had permission. Mother admitted she was violating a monitored visitation
6
order when the children were with her. She explained that she believed it was
appropriate for father to monitor her visits even though they had a history of domestic
violence.
Counsel for DCFS noted that “this case was closed for a fairly short period of
time. When the case was opened previously, there was very little compliance or
involvement on the mother’s part.” The children had been with father for only a short
time before “the situation in father’s home became toxic again,” and counsel asked the
court to sustain the allegations against father. As to mother, DCFS asked the court to
sustain the allegation under section 300, subdivision (b) that mother’s history of
substance abuse and her being under the influence in 2014 and 2013 while taking care of
the children’s half-sister Gabriela Z. endangered the children. Although mother was
working toward sobriety and was currently abstaining, she also had a long history of drug
use and noncompliance and had not obtained a sponsor. The children’s counsel agreed,
arguing that mother had a long history of drug use and was just starting therapy, Isaiah
was angry with mother, and she had failed to visit for around a year at one point. It was
premature to award mother unmonitored visitation.
Mother’s counsel argued that her lengthy drug history did not pose a risk, she had
been in a substance abuse program for six months with clean drug tests, and was not
currently using methamphetamine or marijuana. The petition as to Gabriela Z. was under
circumstances that did not exist for Edith and Isaiah, and there was no current risk that
the children would suffer the harm alleged as to Gabriela Z. Father’s counsel argued that
all the counts against father should be dismissed.
The trial court sustained all the counts against father. The court conformed to
proof the section 300 subdivision (b) allegation against mother and sustained it as
follows: mother “has a history of substance abuse, and is a recent user of
methamphetamine and marijuana, which renders the mother unable to provide regular
care of the child. On prior occasions in 2014 and 2013, the mother possessed, used, and
was under the influence of illicit drugs, while the children’s sibling Gabriela [Z.] was in
the mother’s care and supervision. The children’s mother failed to reunify with the
7
children due to the mother’s substance abuse. The mother’s substance abuse endangers
the children’s physical health and safety, creates a detrimental home environment, and
places the children at risk of physical harm, damage, and danger.” Although mother had
recently gotten involved in substance abuse programs, the court wanted to see longer
participation. “[U]ntil the court has seen that, the court very much feels that there is a
current risk.” Isaiah’s reluctance to live with mother was connected to her lifestyle, and
“clearly there is still a nexus and a risk with mother’s substance abuse.” The court
dismissed the other allegations against mother for lack of evidence. The court found
jurisdiction over Edith and Isaiah.
Mother’s counsel then asked that the children be placed with mother under section
361.2 “given the progress that she’s made in her programs.” The court responded,
“[S]he’s offending.” Counsel rejoined that the statute did not require that the parent be
nonoffending, and asked that the children be released to live with mother in the room she
was renting, or in the alternative that mother be allowed short unmonitored visitation, as
she was regularly participating in her drug program and had completed a parenting class.
The court declared the children dependents, and found by clear and convincing
evidence under section 361, subdivision (c) that there was a substantial danger to the
children if they were returned to the custody of the parents, placing them under the
supervision of DCFS for suitable placement. “The court does not believe 361.2 is
available here. Although the statute does not require a non-offending parent, certainly
the case law supports that it’s applicable with a non-offending parent. And even if that is
not true, the court would certainly find detriment based on the fact that the court just
sustained an allegation of substance abuse against the mother.” The court ordered
reunification services and stated it would consider unmonitored visitation for Mother if
she continued to comply with the programs. The court set a six-month hearing for
January 15, 2015, telling mother it would reconsider at the six-month hearing and urging
her to “[k]eep up the good work.” Mother filed this timely appeal.
8
DISCUSSION
Mother’s sole contention on appeal is that the trial court erred in refusing to apply
section 361.2, subdivision (a) when it denied mother’s request to place Edith and Isaiah
with her as the noncustodial parent.
Section 361.2 provides in subdivision (a) that when the court orders removal of a
child pursuant to section 361, “the court shall first determine whether there is a parent of
the child, with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires to assume
custody of the child. If that parent requests custody, the court shall place the child with
the parent unless it finds that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the child.” The court must state
the reasons for its determination “either in writing or on the record.” (§ 361.2, subd. (c);
In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1252–1253.) A ruling that the child
should not be placed with a noncustodial parent must be made on the basis of clear and
convincing evidence, meaning evidence so clear that it leaves no substantial doubt. (In re
Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On appeal, we review for substantial
evidence, “bearing in mind the heightened burden of proof” in the trial court. (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The trial court in this case sustained against mother the allegation that her history
of substance abuse and her recent use of methamphetamine and marijuana (coupled with
her limited participation in substance abuse programs) made her unable to provide regular
care for the children, stating, “[T]he court very much feels that there is a current risk” due
to mother’s substance abuse. After declaring Edith and Isaiah dependents and turning to
mother’s request that the children be placed with her as the noncustodial parent, the court
declined to give mother custody: “[T]he court would certainly find detriment based on
the fact that the court just sustained an allegation of substance abuse against the mother.”
These statements are substantial evidence on the record that the court found by clear and
convincing evidence (“certainly”) that placement with mother would be detrimental, as
the court had moments before sustained an allegation of substance abuse making Mother
9
unfit to care for the children, stating that it “very much feels there is a current risk” of
harm.
Mother argues that the trial court erred in refusing to apply section 361.2,
subdivision (a) simply because she was an “offending” parent. There is a split of
authority whether section 361.2, subdivision (a) applies to both “offending” and
“nonoffending” noncustodial parents, with “‘nonoffending noncustodial parent’ as
shorthand for the statutory requirement of a parent ‘with whom the child was not residing
at the time that the events or conditions arose that brought the child within the provisions
of Section 300.’” (In re John M. (2013) 217 Cal.App.4th 410, 421–422.) In dicta, we
agreed with In re A.A. (2012) 203 Cal.App.4th 597, 608, which concluded that an
offending noncustodial parent is not entitled to consideration under section 361.2,
subdivision (a). (In re John M., supra, 217 Cal.App.4th at pp. 423–424.) Other courts
have concluded that the plain language of section 361.2, subd. (a) precludes consideration
of whether the noncustodial parent is “offending,” and any relevant facts may
appropriately be considered as part of the detriment determination under that statute. (In
re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505–1506; In re D’Anthony D. (2014) 230
Cal.App.4th 292, 300–303.)
In this case, however, we need not wade back into the debate whether the statute
contains a nonoffending requirement. After the trial court initially declined to apply
section 361.2, subdivision (a), the court stated that if it were to apply the statute to mother
(the noncustodial parent), detriment certainly existed given mother’s history of substance
abuse and recent use of methamphetamine and marijuana, on which basis it had just
sustained an allegation against her, finding a current risk of harm to the children. The
record contains sufficient evidence that the court made a finding by clear and convincing
evidence of detriment under section 361.2, subdivision (a), rather than merely classifying
mother as an “offending” noncustodial parent not entitled to the application of that
section.
10
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
11
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89 Ariz. 349 (1961)
362 P.2d 730
SAN MANUEL COPPER CORPORATION, a Delaware corporation, and Mammoth Livestock, Land & Commercial Company, an Arizona corporation, Appellants,
v.
Lee FARRELL and Marian Farrell, husband and wife, Appellees.
No. 6754.
Supreme Court of Arizona. En Banc.
June 21, 1961.
Rehearing Denied October 3, 1961.
*350 Guynn, Twitty & Sievwright, Phoenix, for San Manuel Copper Corporation.
Clark & Coker, Phoenix, and Tom Fulbright, Florence, for Mammoth Livestock, Land and Commercial Co., for appellants.
Stokes, Bagnall & Moring, Coolidge, Conner & Jones, and James M. Murphy, Tucson, for appellees.
UDALL, Justice.
This appeal is from a judgment of the superior court awarding appellees (hereinafter referred to as Farrells) $7,500 damages against appellants (hereinafter referred to as San Manuel and Mammoth) for wrongful eviction from approximately 300 acres of farm lands occupied by the Farrells under a sublease dated March 1, 1955. The sublease was executed between Farrells and Mammoth, the latter holding all the lands in question under lease from San Manuel.
*351 Immediately after the execution of the sublease dated March 1, 1955 the Farrells entered into possession of the premises and started to farm the land under the terms of the sublease. Most of what happened from then until the middle of September when the Farrells vacated the premises is vigorously disputed. Since the verdict of the jury was for the Farrells we need only determine whether there was sufficient evidence on the essential and contested points for the case to be submitted to the jury.
The essential points in appellants' argument on evidentiary issues are these:
(1) that one of the basic requirements of the sublease was that it be approved by San Manuel and that there was no evidence in the record from which the jury could be permitted to conclude that San Manuel ever gave its approval of the sublease;
(2) that even if the record supports a finding of San Manuel approval of the sublease the record will not support a finding that Farrells were evicted from the premises;
(3) that even if Farrells were evicted in contravention of a valid sublease the record will not support a finding that San Manuel was in any way responsible for or liable for the eviction;
(4) that there was no evidence that the appellees sustained any damages as a result of their claimed eviction; and finally
(5) that there was no evidence which would support a finding that Farrells were damaged to the extent of $7,500. There were in addition assignments of error relating to the admission of certain evidence and giving and failing to give certain instruction which will be discussed infra.
As to the existence of a valid sublease we think that when viewed in a light most favorable to sustaining the judgment of the trial court the evidence fully supports such finding. Mr. Farrell readily admitted that San Manuel never gave its written consent for the sublease but relies upon a theory of estoppel. We said in Holmes v. Graves, 83 Ariz. 174, 177, 318 P.2d 354, 356:
"Estoppel is quite generally predicated on conduct which induces another to acquiesce in a transaction, and that other, in reliance thereon, alters his position to his prejudice. It has three elements. First, acts inconsistent with the claim afterwards relied on; second, action by the adverse party on the faith of such conduct; third, injury to the adverse party resulting from the repudiation of such conduct. See Kerby v. State, 62 Ariz. 294, 157 P.2d 698. Estoppel will be applied to prevent injustices, Munger v. Boardman, 53 Ariz. 271, 88 P.2d 536, and to transactions in which it would be unconscionable to permit a person to maintain *352 a position inconsistent with one in which he has aquiesced. 19 Am.Jur. 676, Estoppel, Section 62."
Mr. Farrell's testimony alone is sufficient to support a finding of estoppel. Much, although not all, of his testimony on this point was corroborated. He testified that at a meeting held with San Manuel's manager on April 15, 1955, the sublease was discussed. The manager knew that the Farrells were in possession and were proceeding with the farming operations. Mr. Farrell's testimony was that at that meeting it was agreed the sublease would be approved and that formal drafting of the approval was to be held up pending a survey to establish an exact description of the premises. He further testified that he was told to go ahead and operate under the sublease and that with full knowledge that he was so doing San Manuel stood by and acquiesced in his expenditure of funds and labor in the farming operation until his eviction in September of that same year. This testimony, which the jury apparently believed, shows acts inconsistent with the subsequent claim of nonconsent to the sublease, action by the Farrells on the faith of the conduct, and injury to the Farrells resulting from the subsequent repudiation of that conduct.
That Farrells were evicted and did not voluntarily abandon the premises is sufficiently supported by Mr. Farrell's testimony that in September Mammoth put 300 head of cattle into the wet fields of growing alfalfa making it impossible to harvest and destroying the ditches which he had improved, asserting all the while that Farrells did not have a valid sublease. Mr. Farrell testified that these acts were the reasons why he vacated the premises.
That San Manuel was a party to the eviction and liable therefor is less clearly supported by the record but such a finding is nonetheless justified under the evidence of the record. It is uncontradicted that in July (long after the Farrells had changed their position in reliance on San Manuel's consent to the sublease) there was a meeting between Mr. Farrell and officers of San Manuel at which Farrell was told that San Manuel did not recognize the sublease as being valid. There is evidence that San Manuel was anxious to terminate their lease to Mammoth because unprofitable and that the rights of the Farrells were an obstacle to the termination. Mr. Farrell testified that an officer of Mammoth gave as a justification for putting the cattle on the land the fact that San Manuel sold Mammoth's lease. In addition there was uncontradicted evidence that San Manuel reaped the benefit of the eviction and ratified it by entering into a profitable agreement dated shortly after the eviction whereby it received a settlement on the large debt owed to it by Mammoth and obtained a release of the Mammoth lease freeing San Manuel to re-lease the property to a more *353 financially reliable group of tenants which it did in the same transaction.
This course of dealing, from the disavowal of the rights of the Farrells in July to the acquiescence in the evictive acts of Mammoth to the overt ratification of the eviction by reaping the benefits thereof, constitutes sufficient evidence from which the jury could properly conclude that San Manuel was in fact a party with Mammoth in the eviction of the Farrells. San Manuel does not deny that it reaped the benefits of the eviction by putting new tenants into possession by executing a lease while the Farrells had nearly a year left to run on their sublease. They do not deny that they accepted rent from the new lessees who, under the new lease, were farming the property which the Farrells had a right to farm for a year from the time of eviction. They only seek to excuse it by denying the validity of the sublease and by pointing out a clause in the new lease they executed with the new tenants to the effect that it was subject to the rights of the Farrells "if any." In light of the fact that San Manuel denied any rights in the Farrells and accepted rent from the new lessees who took over the land and equipment to which the Farrells were entitled under the sublease the clause was meaningless and can in no way exculpate San Manuel from liability for the eviction.
We think the claim that the Farrells suffered no damages from the eviction is without merit. There is ample evidence that the farm lands being used by the Farrells were made unsuitable for further agricultural uses during the balance of 1955 and that the growing crops then on the premises were almost completely destroyed.
Turning to the more technical assignments of error not related to the sufficiency of the evidence we consider the argument that plaintiffs' exhibits 7 and 8 were improperly admitted. One exhibit shows the agreement terminating Mammoth's lease and the other shows the new lease executed between San Manuel and Mauldin, Mercer and Rhodes. These exhibits were admissible to show the relationship of San Manuel to the eviction of the Farrells as discussed supra. They are relevant to show the course of dealing and that San Manuel ratified the eviction by reaping the benefits thereof to the extent of $1,388.88 cash rent from the new lessees for the remainder of 1955 in addition to other benefits. Taken together these exhibits tend to show a plan or design of San Manuel to rid itself of an unprofitable lease to Mammoth along with the sublease to Farrells and to substitute in its place a new contract with financially responsible parties. When so viewed they have sufficient probative value that the court did not commit error in permitting the jury to consider them in connection with all the other facts and circumstances in the case.
*354 The final matters to be considered all related to the giving of plaintiffs' requested instruction No. 5, which as given reads as follows:
"You are instructed that an evicted tenant is entitled to compensatory damages for pecuniary losses naturally and proximately resulting from the eviction including loss of time, conversion. loss of or injury to personal property, for the value of labor performed in preparing the land for crops and for the value of pasturage."
The general rule of damages for wrongful eviction is the actual or market value of the unexpired term as of the time of eviction plus whatever other loss the lessee may have incurred as a direct and natural consequence of the wrongful eviction less the agreed rent. Landon v. Hill, 136 Cal. App. 560, 29 P.2d 281; McElvaney v. Smith, 76 Ark. 468, 88 S.W. 981; 32 Am.Jur. (Landlord & Tenant) § 265; 52 C.J.S. Landlord & Tenant § 461 b(3).
While plaintiffs' instruction No. 5 was intended to cover the latter part of the general rule it includes one item which is included in the first part relating to the value of the lease and covered in defendant's instruction No. 8. The value of labor performed in preparing land for crops is an element of the value of the remainder of the term of the lease. The inclusion of this element in the contested instruction would permit the jury to include this element twice and was therefore error.
What elements go in to making up the value of the remainder of the term of a lease are as many and varied as leases are many and varied. What elements should be considered in determining the value of the remainder of the term in the instant case must abide the event of the new trial on the issue of damages, governed and controlled, of course, by the pleadings in the action. We cannot and should not attempt to anticipate what proof the plaintiffs may be able to offer. For cases dealing with somewhat analogous situations, see County of Maricopa v. Shell Oil Co., 84 Ariz. 325, 327 P.2d 1005; Pacific Guano Co. v. Ellis, 83 Ariz. 12, 315 P.2d 866; State ex rel. Morrison v. Carlson, 83 Ariz. 363, 321 P.2d 1025. The question of consequential damages offers an equally wide range of possible proof and must likewise abide the event of a new trial.
For the reasons given in this opinion the judgment of the trial court is affirmed as to the liability of both defendants for wrongful eviction and reversed and remanded with instructions to grant a new trial on the issue of damages only.
STRUCKMEYER, C.J., BERNSTEIN, V.C.J., and JENNINGS and LOCKWOOD, JJ., concur.
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915 F.2d 1573
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.UNITED STATES of America, Plaintiff-Appellee,v.Bobby Lee HARRIS, (90-5103)Howard O'Brien Tharpe, (90-5104)Harry Walker Hayes, (90-5467)Gerald Tharpe, (90-5577) Defendants-Appellants.
Nos. 90-5103, 90-5104, 90-5467 and 90-5577.
United States Court of Appeals, Sixth Circuit.
Oct. 12, 1990.
Before NATHANIEL R. JONES and RYAN, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.
ORDER
1
Bobby Lee Harris, Howard O'Brien Tharpe, Harry Walker Hayes and Gerald Tharpe appeal the sentences imposed by the district court following their jury convictions on various drug related charges. The cases have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Defendants were originally sentenced by the district court on July 8, 1988. They were not sentenced under the federal sentencing guidelines because the district court concluded that the guidelines were unconstitutional. On appeal, this court affirmed defendants' convictions, but remanded the cases to the district court for resentencing under the guidelines in light of the Supreme Court's decision in Mistretta v. United States, 488 U.S. 361 (1989).
3
After resentencing, each defendant has filed a timely appeal, challenging his sentence. Defendants assert that the district court erroneously increased their base offense level by two levels for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1. Specifically, they claim: (1) the increase for obstruction of justice was made without any evidentiary foundation or any opportunity for defendants to confront or cross-examine witnesses or examine the evidence; and (2) since the district court ruled at the original sentencing hearing that it would not consider obstruction of justice as a sentencing factor, the government was collaterally estopped from seeking an enhancement for obstruction of justice at resentencing. In addition, Hayes and Gerald Tharpe assert that the district court erred in failing to decrease their base offense level by two levels for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. Finally, Gerald Tharpe asserts that the district court erred in calculating his base offense level based upon the amount of drugs involved pursuant to U.S.S.G. Sec. 2D1.1.
4
Upon review, we affirm the district court's judgments. A review of the record reveals that the district court properly applied the guidelines in sentencing defendants.
5
First, collateral estoppel does not bar the two level enhancement for obstruction of justice which was applied to each defendant at resentencing. See United States v. Jackson, 903 F.2d 1313, 1316 (10th Cir.1990). Second, a preponderance of the evidence supports the district court's decision to enhance each defendant's base offense level by two levels for obstruction of justice. See United States v. Castro, 908 F.2d 85, 90 (6th Cir.1990). Third, neither Hayes nor Gerald Tharpe met their burden of establishing facts supporting a reduction of their sentences for acceptance of responsibility by a preponderance of the evidence. United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir.1990). Finally, the district court correctly calculated Gerald Tharpe's base offense level based upon the negotiated amount of two kilograms of cocaine. United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 109 S.Ct. 3227 (1989).
6
Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTHUR SWEETING, DOCKET NUMBER
Appellant, AT-315H-16-0389-I-1
v.
DEPARTMENT OF JUSTICE, DATE: August 4, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Arthur Sweeting, Mountain View, California, pro se.
Steven R. Simon, Esquire, Phoenix, Arizona, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found that his termination appeal was barred by the doctrine of collateral
estoppel. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The history of this appeal began almost 37 years ago, when the appellant
was terminated from his probationary GS-6 Correctional Officer position
effective November 1979. Initial Appeal File (IAF), Tab 1 at 3, 7. The
administrative judge dismissed his appeal for lack of jurisdiction. Id. at 7. The
Board remanded the case to the administrative judge to give the appellant an
opportunity to offer proof in support of his allegation that he was terminated
because of partisan political reasons. Sweeting v. Department of
Justice, 6 M.S.P.R. 715, 716-17, 719-20 (1981). After considering the
appellant’s arguments, the administrative judge again dismissed the appeal for
lack of jurisdiction. IAF, Tab 1 at 6. In 1990, the appellant filed a petition for
review, which the Board dismissed as untimely filed. Sweeting v. Department of
Justice, 48 M.S.P.R. 36, 38, aff’d per curiam, 949 F.2d 403 (Fed. Cir.
1991) (Table).
¶3 On February 11, 2016, the appellant filed the instant appeal, rearguing the
merits of his termination. IAF, Tab 1. The administrative judge ordered the
appellant to show cause why his appeal should not be dismissed as barred by the
doctrine of collateral estoppel. IAF, Tab 4. Both the appellant and the agency
3
responded to the order. IAF, Tabs 5-6. On May 18, 2016, the administrative
judge found that the jurisdictional issue was the same as that litigated in the prior
appeal, and dismissed the case as barred by the doctrine of collateral estoppel
without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 7, Initial
Decision (ID).
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He alleges that there is new and material evidence that previously
was unavailable despite his due diligence, and requests that the Board take action
to safeguard his Fourteenth Amendment rights and assist him in removing a
stigma attached to his reputation. Id. The agency has responded to the petition
for review and the appellant has replied. PFR File, Tabs 3‑4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Collateral estoppel, or issue preclusion, bars a party from relitigating a
matter that was previously litigated and is applicable if: (1) the issue is identical
to that involved in the prior action; (2) the issue was actually litigated in the prior
action; (3) the determination on the issue in the prior action was necessary to the
resulting judgment; and (4) the party against whom issue preclusion is sought had
a full and fair opportunity to litigate the issue in the prior action, either as a party
to the earlier action or one whose interests were otherwise fully represented in
that action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶¶ 15‑16
(2005).
¶6 As noted by the administrative judge, the issue in the current appeal is
identical to that which was litigated and resolved in the prior appeal: whether the
Board has jurisdiction over the appellant’s probationary termination appeal. ID
at 3. The administrative judge held that the appellant was given a full and fair
opportunity to litigate the question of jurisdiction in the prior appeal. Id. We
agree that the appellant received a full and fair opportunity to litigate the
jurisdictional issue. The appeal was remanded to address the appellant’s
4
jurisdictional claims in a prior Board Opinion and Order. Id. There is no reason
to believe that the appellant did not receive a fair opportunity to present his
arguments at that time. Because the administrative judge correctly articulated
and applied the doctrine of collateral estoppel, the Board lacks a basis upon
which to grant the appellant’s petition for review.
¶7 The appellant alleges that his petition should be granted based on new
information that was unavailable at the time of his appeal despite his due
diligence. PFR File, Tab 1. However, this “new” evidence consists of
documentation from 1979 concerning his probationary termination action. Id.
at 5‑11. The appellant has not provided any corroboration that this evidence is
actually new or was unavailable when he filed the original appeal, despite his due
diligence. Moreover, even if the proffered evidence were new and previously
unavailable, its content addresses the merits of the appellant’s claim and is not
material to the jurisdictional issue. See Okello v. Office of Personnel
Management, 112 M.S.P.R. 563, ¶¶ 6-7 (2009) (finding that new evidence did not
provide a basis to reopen or reinstate a petition for review because it was not
material to the dispositive jurisdictional issue).
¶8 On review, the appellant requests a “due process hearing.” PFR File, Tab 1
at 4. Because the Board lacks jurisdiction over the appeal, we also lack
jurisdiction to hear the appellant’s due process claim. Rivera v. Department of
Homeland Security, 116 M.S.P.R. 429, ¶ 16 (2011). Further, collateral estoppel
applies here even if a hearing was not held on the jurisdictional issue. See
Fisher v. Department of Defense, 64 M.S.P.R. 509, 514-15 (1994) (finding that
the “actually litigated” requirement of collateral estoppel requires only that the
issue must have been contested by the parties and resolved by the adjudicator).
¶9 Accordingly, we affirm the initial decision.
5
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
6
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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(2008)
UNITED STATES of America, Plaintiff,
v.
Abel LOPEZ-MENERA, Defendant.
No. C 07-653 SI.
United States District Court, N.D. California.
February 13, 2008.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT
SUSAN ILLSTON, District Judge.
On December 20, 2007, the Court held a hearing on defendant's motion to dismiss the indictment. After careful consideration of the parties' arguments and the record in this case, the Court GRANTS defendant's motion for the reasons set forth below.
BACKGROUND
On November 8, 2007, a grand jury filed a superseding indictment against defendant Abel Lopez-Menera, alleging that he illegally reentered the United States after deportation in violation of 8 U.S.C. § 1326. Defendant first entered the United States illegally in 1989, and was deported in 1998.
As background to the 1998 deportation, defendant was convicted in 1993 of driving under the influence in violation of California Vehicle Code § 23152(b). In 1997, defendant was convicted of driving under the influence with priors, and received a two year state prison sentence. On December 22, 1997, while defendant was in prison, the INS issued a warrant for his arrest because he was in this country illegally. Falk Deck, Ex. C. The same day, the INS issued a final administrative removal order against defendant requiring his removal from the United States. Id.
The Final Removal Order, which was issued under Section 238(b) of the Immigration and Nationality Act, provided for defendant's immediate removal on the ground that he had been convicted of an aggravated felony (the DUI convictions). Id. The INS issued two additional Notices of Intent to Issue Final Administrative Removal Orders of defendant on March 4, 1998 and June 8, 1998. Both documents stated that defendant was deportable because he had been convicted of an aggravated felony.
On September 18, 1998, the INS issued a Notice to Appear, which defendant signed, requesting hearing to contest his deportation. Id. Falk Deck, Ex. G. By this time, the INS had changed its allegations against defendant; the Notice to Appear alleged that defendant was deportable only because he was in the United States illegally, not because he had committed an aggravated felony.
On September 24, 1998, defendant and 18 other men were placed in removal proceedings before Immigration Judge Leary. See Transcription of Immigration Hearing, attached to Falk Deck, Ex. A. In a global statement to all respondents during the hearing, IJ Leary stated that he would conduct an individual inquiry with each of the respondents to advise them of any possible relief from deportation. Id. at 5:47. IJ Leary also informed the group, however, that "none of you will be eligible for voluntary departure, so that's not going to be an issue at any of these hearings." Id. at 9:14.
During defendant's individual hearing, the IJ reviewed defendant's background with him, and determined that he had a family in the United States that included three United States citizen children. Id. at 1:01:06. The IJ found defendant removable as an undocumented alien. Id. The IJ asked defendant what he was "in for," and defendant responded, "possession of drug and uhh driving drunk." Id. The IJ then informed defendant, "Sir, in your case there is no relief. Because of the drugs. There's no claim to citizenship. I'm going to have to order your removal from the United States to Mexico. Do you understand my decision? Yes?" Id. Defendant stated that he understood the IJ's decision, and that he agreed to waive his right to appeal. Id.
DISCUSSION
Defendant moves to dismiss the indictment due to alleged due process defects in the underlying 1998 deportation proceeding. Defendant contends that the IJ was required to inform him that he was eligible for voluntary departure, and instead the IJ misinformed him that he was ineligible for such relief. To challenge the validity of a prior deportation order under 8 U.S.C. § 1326(d), a defendant must show: (1) exhaustion of any available administrative remedies; (2) improper deprivation of judicial review in the underlying removal proceedings; and (3) prejudice. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir.2004). The government contends that defendant's motion to dismiss fails because defendant cannot show any of these three elements.
1. Exhaustion of administrative remedies and deprivation of judicial review
The Ninth Circuit has held that the exhaustion requirement in § 1326(d)(1) will not bar collateral review of a deportation proceeding when the waiver of an administrative appeal was not valid. United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir.2001). "An alien is barred from collaterally attacking an underlying deportation order `if he validly waived the right to appeal that order' during the deportation proceedings." Id. at 1182 (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000)). "In order for the waiver to be valid, however, it must be both `considered and intelligent.'" Arrieta, 224 F.3d at 1079 (citing United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)). A waiver is not "considered and intelligent" when "the record contains an inference that the petitioner is eligible for relief from deportation," but the IJ fails to "advise the alien of this possibility and give him the opportunity to develop the issue." Arrieta, 224 F.3d at 1079.
The government contends that defendant knowingly waived his right to an appeal, and thus is foreclosed from collaterally attacking the 1998 deportation proceeding. However, a number of published and unpublished Ninth Circuit cases hold otherwise. United States v. Basulto-Pulido, 219 Fed.Appx. 717 (9th Cir. Jan. 25, 2007), is directly on point.[1] In Basulto-Pulido, a criminal defendant was convicted of a violation of 8 U.S.C. § 1326. As in this case, Basulto-Pulido contended that his due process rights were violated in the underlying deportation proceeding because the IJ failed to inform him that he was eligible to apply for voluntary departure pursuant to 8 U.S.C. § 1229c(a)(1). The Ninth Circuit held that Basulto-Pulido's waiver of his right to appeal did not bar his collateral attack. "Although it is uncontested that Basulto-Pulido was statutorily eligible for pre-hearing voluntary departure when he appeared before the IJ, she did not explain what pre-hearing voluntary departure was, nor did she provide him with the opportunity to apply for it. Consequently, Basulto-Pulido's waiver of his right to appeal the deportation order was not considered and intelligent, and was therefore invalid." Basulto-Pulido, 219 Fed.Appx. at 719 (reversing district court's order denying motion to dismiss indictment based on due process violation in underlying deportation proceeding); see also United States v. Gonzalez, 429 F.3d 1252, 1256 (9th Cir.2005) ("A waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the Immigration Judge fails to advise ... of this possibility and [to provide an] opportunity to develop the issue.").[2]
The government contends that unlike the defendant in Basulto-Pulido, here defendant was not eligible for voluntary departure because of his aggravated felonies, the DUI convictions. The government argues that at the time of defendant's 1998 deportation, defendant's California DUI felonies were considered "aggravated felonies," and that it is irrelevant that the Ninth Circuit later held that a violation the California DUI statute could not constitute an aggravated felony. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir.2001). Thus, the government argues, because defendant could have been deported based on his aggravated felony, the IJ correctly informed defendant that he was ineligible for relief.
There are several problems with the government's argument. First, there is no dispute that while the initial immigration paperwork identified defendant as an aggravated felon, by the time of his 1998 deportation, he was not in fact deported on the basis of having committed an aggravated felony. See Falk Deck, Ex. G at AL 36 (stating that as of September 24, 1998, the ground for defendant's deportation was being an undocumented alien, not that he had been convicted as an aggravated felon); Ex. I at AL 19 (indicating that defendant was not checked off as "permanently excludable" due to any aggravated felony conviction, but instead was only excluded from the United States for a period of five years).
Second, the government conceded at oral argument that at the time of defendant's deportation, there was no authority judicial decision or otherwise holding that California DUI convictions were aggravated felonies. Instead, as the government acknowledges, "it was assumed" that such DUI convictions were aggravated felonies, and the cases cited by the government do not prove otherwise. The first is a habeas case, Rosas-Paniagua v. Reno, 76 F.Supp.2d 1060 (N.D.Cal.1999) (Alsup, J.), which simply recites in the factual background the fact that the Notice to Appear issued to the petitioner in that case alleged that he was deportable because he was an aggravated felon due to a DUI felony conviction. Id. at 1060-61. Rosas-Paniagua does not stand for the proposition that it was established by either federal or immigration courts that DUI felony convictions were considered aggravated felonies in 1998. The second case is a 1998 Board of Immigration Appeals decision which addresses the Arizona drunk driving statute, not the California statute under which defendant was convicted. In re Magallanes-Garcia, 1998 WL 133301, *4, 5, 6, 22 I & N Dec. 1, 5, 1998 BIA LEXIS 2, at *9-10 (B.I.A.1998).
The Court finds it significant that the Ninth Circuit case holding that California DUI convictions were not "aggravated felonies" does not state that the court is reversing any pronouncement of law, as opposed to interpreting the law in the first instance. In Trinidad-Aquino, the Ninth Circuit addressed the issue sua sponte, and held that "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43) required a volitional act equivalent to recklessness. Because California's DUI statute could be violated through negligence, the court held that such violations could not be considered "aggravated felonies" for purposes of sentence enhancements. Trinidad-Aquino, 259 F.3d at 1146-47.[3]
Accordingly, the Court finds that defendant was deported based upon being an undocumented alien and not on the basis of having committed an aggravated felony, and further that at the time of the 1998 deportation, it was not established that defendant's DUI convictions qualified as aggravated felonies. Thus, defendant was statutorily eligible to apply for voluntary departure. Because the IJ failed to inform defendant that he could apply for such relief, defendant's waiver of his right to appeal was invalid. As such, the Court holds that defendant has satisfied the exhaustion and deprivation requirements in § 1326(d). See Basulto-Pulido, 219 Fed. Appx. at 719; see also Ortiz-Lopez, 385 F.3d at 1204 n. 2 (holding where IJ failed to inform defendant of eligibility for voluntary departure that he "would have been deprived of the right to judicial review, because an alien who is not made aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that he was not advised of that right.") (internal citation and quotations omitted).
2. Prejudice
The government contends that defendant was not prejudiced by the IJ's failure to inform him about voluntary departure because he was an aggravated felon. As discussed above, defendant was not deported on the basis of being an aggravated felon, and it was not established in 1998 that defendant's DUI conviction qualified as an aggravated felony. The government also argues that defendant was not prejudiced because the record shows that the IJ considered the same factors that he would have considered in determining defendant's suitability for voluntary departure. The government notes that the IJ stated that no relief was available because of the defendant's history of drug use, and further argues that defendant's DUI arrests and sporadic employment history would have led the IJ to deny an application for relief.
The Ninth Circuit has held that to satisfy the prejudice requirement, a defendant "must show only `that he had a plausible ground for relief from deportation.'" Basulto-Pulido, 219 Fed.Appx. at 719 (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004)). In Basulto-Pulido, the Ninth Circuit held that the defendant established the prejudice requirement because he had a "plausible claim" for pre-hearing voluntary departure, and he "might have applied for and received this relief rather than conceding deportability, with its attendant harsh consequences." Id. The court noted that Basulto-Pulido's claim for voluntary departure was strengthened by his common-law marriage to a U.S. citizen and his three U.S. citizen children. Id. at n. 1.
Here, defendant also has three U.S. citizen children and a U.S. citizen commonlaw wife. The Court notes that the transcript of the hearing before the IJ reflects possible confusion on the IJ's part regarding defendant's drug use; the IJ asked defendant what he was "in for," and defendant responded "possession of drugs" and "driving drunk." In fact, defendant did not have any drug-related convictions, but was only incarcerated for the DUI convictions. In any event, the Court finds that defendant's history of drug use does not preclude a finding that defendant had a plausible claim for relief. See Nungaray-Rubalcaba, 229 Fed.Appx. at 438 (defendant with drug convictions had plausible claim for voluntary departure). Moreover, the Court notes that defendant has also submitted the declaration of a family friend, Sally Dietz, who states that she would have assisted defendant with transportation costs and/or the cost of bail to enable him to voluntarily depart if such relief had been granted. See generally Dietz Decl. Accordingly, based on this record the Court finds that defendant had a plausible claim for voluntary departure, and thus has established that he was prejudiced by the IJ's failure to inform him of his eligibility for such relief.
CONCLUSION
Because the IJ's failure to inform defendant of his eligibility for voluntary departure violated his due process rights, and because this violation caused defendant prejudice, the underlying order of deportation cannot be used as an element of a conviction under § 1326. Accordingly, the Court hereby GRANTS defendant's motion to dismiss and DISMISSES the indictment. (Docket No. 18).
IT IS SO ORDERED.
NOTES
[1] The government emphasizes the fact that Basulto-Pulido is an unpublished decision. However, under Federal Rule of Appellate Procedure 32.1, a court may not prohibit or restrict the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished" if issued on or after January 1, 2007. See also Ninth Circuit Rule 36-6(b) (unpublished dispositions and orders issued on or after January 1, 2007 may be cited to in accordance with Fed. R.App. P. 32.1).
[2] The government contends that aliens who wish to apply for voluntary departure under 8 U.S.C. § 1229c(a)(1) must request such relief, and that there is nothing in that statute or the implementing regulations that affirmatively requires IJs to inform aliens of their eligibility to apply for such relief. However, the Ninth Circuit has not distinguished between voluntary departure under § 1229c(a)(1) and other statutory provisions in the context of an IJ's obligation to inform aliens of their eligibility to apply for voluntary departure, and thus the Court finds this distinction unpersuasive. See, e.g., Basulto-Pulido, 219 Fed.Appx. 717; see also United States v. Nungaray-Rubalcaba, 229 Fed.Appx. 436 (9th Cir. Apr. 10, 2007) (deportation proceeding violated due process when IJ failed to inform alien of eligibility for voluntary departure under § 1229c(a)); United States v. Alonza-Mendoza, 239 Fed.Appx. 330 (9th Cir.2007) (same).
[3] In Trinidad-Aquino, the parties and the district court had assumed that the defendant's DUI conviction was an aggravated felony, and the court imposed a 16 level sentence enhancement as a result.
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