text
stringlengths 1
1.21M
| meta
dict |
|---|---|
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3337
IN RE: MIDWAY AIRLINES, INC.,
MIDWAY AIRLINES (1987) and
MIDWAY AIRCRAFT ENGINEERING, INC.
Debtors-Appellees.
MONARCH AIR SERVICE, INC.,
Defendant-Appellant,
v.
SHELDON L. SOLOW, Trustee,
Plaintiff-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CV 2580—John A. Nordberg, Judge.
____________
ARGUED FEBRUARY 12, 2004—DECIDED SEPTEMBER 13, 2004
____________
Before CUDAHY, COFFEY and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Unfortunately lacking a crystal
ball, in August 1990, defendant Monarch Air Service, Inc.
(Monarch) entered into an agreement with Midway Airlines,
Inc. (Midway) to provide fueling services for Midway’s air-
craft. These services included, among other things, the man-
agement of Midway’s fuel storage tank farm. By March
1991, Midway and two related entities, Midway Airlines
2 No. 03-3337
(1987) (Midway 1987) and Midway Aircraft Engineering, Inc.
(Midway Engineering) (collectively, the Midway debtors)
filed for Chapter 11 bankruptcy. Monarch was required by
the bankruptcy court, together with other vendors, to con-
tinue providing services to the ailing Midway Airlines. Alas,
Midway’s financial situation took a turn for the worse, and by
November 1991, Midway unilaterally (and without notice)
ejected Monarch from the tank farm, converting to a
Chapter 7 bankruptcy two weeks later.
In January 1992, the bankruptcy court authorized the
sale of the jet fuel stored in Midway’s tank farm. Monarch
belatedly realized that this was a perfect opportunity to
assert claims that both its pre-petition and post-petition
expenses were actually secured by a common law bailee’s or
warehouseman’s lien on the jet fuel. The sale of the jet fuel
went forward, and the disputed amount of the proceeds has
been held in escrow ever since.
Eventually, it came time to dispose of the remaining
smaller claims against the Midway debtors, including
Monarch’s claims. Monarch consented to the disallowance
of its claim for pre-petition expenses. The amount in dispute
at the present juncture is Monarch’s claim for post-petition
expenses of $36,938.60. The bankruptcy court found that
Monarch had consented to the treatment of its post-petition
claim as an unsecured administrative expense, and, in the
alternative, that Monarch was not entitled to a lien on the
jet fuel in the first place. The district court affirmed on the
first ground, ignoring the second. Monarch appeals both of
the bankruptcy court’s findings, but for the reasons that
follow, we affirm.
I.
The facts in this case are essentially undisputed. Monarch
entered into an airport fueling services agreement with
Midway on August 28, 1990 (1990 Contract). (R. 1-1, tab A.)
According to this agreement, Monarch’s responsibilities
No. 03-3337 3
were twofold: supplying fueling services for Midway’s air-
craft at Midway airport (which included refueling and
defueling the aircraft and transporting the fuel from
Midway’s tanks to its aircraft in Monarch’s own tanker
trucks), as well as managing Midway’s fuel storage tanks
(which consisted of operating the fuel tanks in connection
with providing fueling services and routine maintenance of
the tanks). The agreement stated that all fuel would be
ordered, purchased and owned by Midway. It also provided
that the fuel tank facilities in which Midway’s fuel was
stored were owned by the City of Chicago and leased to (and
controlled by) Midway. Midway has, however, admitted that
Monarch had sole physical possession and control over the
fuel tank facilities pursuant to the contract. (Appendix 11,
Trustee’s Rule 402(N) Response, #12.) The agreement gave
Midway the option of assuming management of its storage
facilities upon thirty days’ written notice to Monarch.
On March 25, 1991, the three Midway debtors filed
voluntary Chapter 11 bankruptcy petitions. In accordance
with these petitions, the Midway debtors obtained an in-
junction barring key vendors, such as Monarch, from sus-
pending services under their contracts. The order imposing
the injunction provided that “each such defendant or party
which . . . otherwise provides goods or rendered services as
requested by the plaintiffs pursuant to the Industry
Agreements on or after March 26, 2001, shall be entitled to
payment therefor in the ordinary course of business, as an
administrative expense under 11 U.S.C. § 503(b)(1).” (Loose
Pldgs. 1-1, Exhibit B.) Monarch filed an initial proof of an
unsecured claim for pre-petition services of $75,645 on June
18, 1991 (Initial Claim). (Trustee’s Br., Supp. Appx., tab B.)
On November 13, 1991, without any notice, Midway re-
moved Monarch from physical possession of and control
over the fuel tank facilities. At this point, Monarch was
owed approximately an additional $37,000 for its post-pe-
4 No. 03-3337
tition services. About two weeks later, Midway and Midway
Engineering converted their Chapter 11 petitions to Chapter
7 bankruptcies; Midway 1987 followed suit on March 9,
1992.
Meanwhile, the bankruptcy court had entered an order on
January 27, 1992, authorizing the sale of the fuel inventory
in Midway’s storage tanks, providing that “Liens, including
warehousemen’s liens and possessory liens, shall attach to
the proceeds.” Monarch did not receive actual notice of this
order until March 1992, at which time it informed the
trustee of the Midway debtors’ bankruptcy estate, plaintiff
Sheldon Solow (Trustee), that it held a possessory lien in
the proceeds of the sale. The disputed proceeds were placed
in escrow pending determination of the validity of Mon-
arch’s claimed lien. More than 12 years later, these pro-
ceeds continue to be held in escrow.
On April 29, 1992, Monarch filed two proofs of claim. One
claim purported to amend its Initial Claim by asserting that
Monarch’s pre-petition expenses of $75,645 were secured by
a common law bailee’s or warehouseman’s possessory lien
on the jet fuel in Midway’s fuel storage tanks and Mon-
arch’s tanker trucks (Claim One). (Trustee’s Br., Supp.
Appx., tab D.) The other claim was for expenses of
$112,583.19, which included both Monarch’s pre-petition
expenses of $75,645 and its post-petition expenses of
$36,938.60 (Claim Two). (Trustee’s Br., Supp. Appx., tab E.)
Like Claim One, these expenses were also said to be
secured by a common law bailee’s/warehouseman’s posses-
sory lien on the jet fuel in Midway’s fuel storage tanks and
Monarch’s tanker trucks. However, on the same form,
Monarch also expressed an intent to claim (in the alternative)
that the $36,938.60 was a priority (unsecured) administra-
tive expense as provided under the terms of the March 26,
1991 order. The bankruptcy court, in an order entered May
18, 1993, allowed Monarch’s post-petition claim in full as an
administrative expense under 11 U.S.C. § 503. (Trustee’s
No. 03-3337 5
Br., Supp. Appx., tab C.) No mention was made of any
secured status for this claim.
After nearly eight years had gone by, the bankruptcy court,
upon the Trustee’s motion, approved a claims resolution
procedure authorizing the Trustee to use a negative notice
format to resolve the remaining 11,000 or so claims by the
creditors of the Midway debtors. Pursuant to this proce-
dure, the Trustee sent notices to the persons designated to
receive notices on Monarch’s Claim One and Claim Two
forms—Monarch’s president and Monarch’s general counsel,
respectively. The Trustee’s notice of objection to Claim Two,
served on Monarch’s general counsel in July 2001, is the
one at issue here. (Trustee’s Br., Supp. Appx., tab H.) This
notice proposed to allow the post-petition amount of
$36,938.60 in full, with the caveat that “Your distribution
will be a percentage of your Allowed Amount.” The notice
objected to the portion of the claim for pre-petition services,
stating that “[n]o distribution will be made to pre-petition
claims because the Estate lacks funds to pay all post-pe-
tition claims in full.” No explicit mention was made whether
the Allowed Amount ($36,938.60) was being treated as an
administrative expense or as a secured post-petition ex-
pense. Monarch’s president signed and returned a consent
form agreeing to this treatment dated August 3, 2001. A
second notice objecting to Claim One as being both pre-
petition and duplicative was sent in May 2002 directly to
Monarch’s president (Trustee’s Br., Supp. Appx., tab K),
and no response was filed.1
On February 5, 2003, the bankruptcy court issued an oral
ruling that Monarch had consented to the treatment of its
proof of secured post-petition claim as an administrative
expense and entered summary judgment in the Trustee’s
1
Monarch therefore consented to the Trustee’s treatment of
Claim One.
6 No. 03-3337
favor. Monarch filed a motion for reconsideration the next
day, which was denied on February 24, 2003 when the
bankruptcy court confirmed its holding that Monarch had
waived its secured claim to post-petition expenses, and, in
the alternative, that Monarch did not, in any event, have a
valid post-petition lien entitling it to secured status.
On March 6, 2003, Monarch appealed to the district court,
which by order dated July 30, 2003, affirmed the bank-
ruptcy court’s grant of summary judgment to the Trustee on
the ground that Monarch had waived its alleged secured
claim. Monarch subsequently appealed to this court.
II.
A court of appeals applies the same standard of review to
bankruptcy court decisions as does a district court. A
bankruptcy court’s findings of fact are reviewed for clear
error, and its conclusions of law are reviewed de novo. In re
Smith, 286 F.3d 461, 464-65 (7th Cir. 2002) (internal
citations omitted). As a conclusion of law, a grant of sum-
mary judgment by the bankruptcy court is therefore re-
viewed de novo. A grant of summary judgment will be
affirmed if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Summary judgment
may be affirmed on any ground supported by the record,
even if it was not relied upon by the court below. Johnson
v. Gudmundsson, 35 F.3d 1104, 1115 (7th Cir. 1994).
The issues in this case boil down to two questions: (1) Did
the bankruptcy court and the district court properly find
that Monarch had waived its secured claim for post-petition
expenses against Midway? And (2), did the bankruptcy
court properly find that Monarch had failed to establish the
existence of a valid post-petition lien?
No. 03-3337 7
A.
In the 2003 proceedings, both the bankruptcy court and
the district court found that Monarch had impliedly waived its
post-petition secured claim by consenting to the Trustee’s
treatment of Claim Two. The bankruptcy court found that
Monarch had consented to the treatment of its post-petition
claim as a straight (unsecured) administrative claim, which
was indicated by the bankruptcy court’s May 18, 1993 order
and by the language of the Trustee’s objection to Claim
Two, served in July 2001. (See Monarch’s Short Appx., tab
1, at 6, 10.) The bankruptcy court additionally pointed out
that the consent form, signed by Monarch’s president and
dated August 3, 2001, stated that Monarch would receive a
percentage of the allowed amount, which is typical of
regular (unsecured) administrative expenses when the
bankruptcy estate is administratively insolvent. See id. at
12.
The district court agreed that the language of the ob-
jection indicated that the post-petition expense was being
treated as an unsecured administrative expense and that
the lack of any mention of a lien in the Trustee’s objection
form indicated that the Trustee was not proposing to allow
the claim as a secured expense. (See Monarch’s Short Appx.,
tab 5, at 12.) The district court also agreed with the bank-
ruptcy court that Monarch unreasonably continued to rely
on its proof of claim, filed more than eight years earlier, to
maintain a secured claim in the face of the negative notice
procedure being used and the language of the objection
notice referring to recovery of a “percentage” of the allowed
amount.
Monarch argues on appeal that it asserted a secured
claim to administrative expenses in Claim Two, and that 11
U.S.C. § 502(a) and the Federal Rules of Bankruptcy
Procedure 3001(f) provide that the proof of claim is prima
facie valid and the claim is deemed allowed unless the
8 No. 03-3337
Trustee objects in writing. The bankruptcy court’s May 18,
1993 order is said not to have addressed the secured status
of Monarch’s administrative expense claim. Moreover,
Monarch argues, the Trustee did not address the secured
status of its post-petition claim in its objection to Claim
Two, and the “percentage” language in a footnote to the
objection notice should not be considered to be a written
“objection” that placed Monarch on notice that its secured
claim was being treated as an unsecured administrative
expense. On this point, Monarch further argues that being
told it would receive a “percentage” did not necessarily in-
dicate that its claim was being treated as unsecured rather
than secured, since it is possible for secured claimants to
receive a percentage of their claims in certain circum-
stances.
Let us begin with a brief explanation of the types and
priorities of claims, which may be helpful here. Secured
claims are paid (or the collateral returned) before any dis-
tribution is made to priority claimants or to unsecured
general creditors. 11 U.S.C. § 725. The Bankruptcy Code
defines several categories of priority claims in § 507, all of
which are paid out after secured creditors have received
their funds. Id. at § 726. General unsecured creditors re-
ceive a distribution from the bankruptcy estate only if any
funds remain after all priority claims have been paid.
Among priority claims, administrative expenses receive
the top priority. Id. at § 507(a)(1). Typically, administrative
expenses are unsecured, due perhaps to the operation of 11
U.S.C. § 362(a)(4)’s automatic stay, which bars any entity
from “any act to create, perfect, or enforce any lien against
property of the estate.” There are a few possible exceptions,
such as in the case of extensions of post-petition credit in
accordance with 11 U.S.C. § 364(d), or, as some courts have
found, in the case of ad valorem real estate taxes, see City
of New York Dept. of Finance v. R.H. Macy & Co., Inc., 176
B.R. 315 (S.D.N.Y. 1994). These are usually classified as
No. 03-3337 9
“superpriority” administrative expenses and are paid out
before “regular” administrative expenses.2 Although the
bankruptcy court here found § 362(a)(4)’s automatic stay
inapplicable to liens created by operation of law, a finding
with respect to which we render no opinion, this does not
change the fact that a reference to “administrative ex-
penses” without any indication of superpriority or secured
status will typically refer to unsecured administrative
expenses.
Turning to Monarch’s claims, Claim Two (the claim at
issue here) asserted a secured claim for Monarch’s pre- and
post-petition expenses of $112,583.19. In the alterna-
tive—presumably as a fall-back position if its lien were
found invalid—Monarch asserted an unsecured claim to
priority administrative expenses of $36,938.60 pursuant to
the bankruptcy court’s March 26, 1991 order. (Trustee’s Br.,
Supp. Appx., tab E.) The March 26, 1991 order did not
indicate that a creditor’s entitlement to administrative
expenses under 11 U.S.C. § 503(b)(1) for provision of post-
petition goods or services would (or could) entitle it to any-
thing other than regular unsecured administrative expenses.
(Loose Pldgs. 1-1, Exhibit B.) Given, as we have discussed,
that administrative expenses generally refer to unsecured
expenses, when the bankruptcy court allowed Monarch’s
post-petition claim in 1993 as an administrative expense
pursuant to 11 U.S.C. § 503(b)(1) without any mention of
secured status or of Monarch’s purported lien, this action
served to allow the claim as a typical unsecured administra-
tive expense. Implicit in this decision was the bankruptcy
court’s non-acceptance of Monarch’s secured claim to post-
petition expenses.
2
A creditor may also claim “superpriority” administrative ex-
penses when it has been granted “adequate protection” of its
collateral but the adequate protection fails. See 11 U.S.C. § 507(b).
10 No. 03-3337
Moreover, the bankruptcy and district courts correctly
held that the Trustee’s objection to Claim Two clearly im-
plied that Monarch’s post-petition claim would be treated as
an unsecured administrative expense. First, there is the
footnote on the objection notice indicating that Monarch
would receive a percentage of its claim for post-petition
expenses, a comment that the bankruptcy court observed to
be typical of unsecured administrative expenses. Second,
there is the Trustee’s statement that “[n]o distribution will be
made to pre-petition claims because the Estate lacks funds
to pay all post-petition claims in full.” This language in-
dicates that Monarch’s pre-petition claim was of a lower
priority than claims for post-petition administrative ex-
penses. If the Trustee had accepted Monarch’s claimed lien
as valid, Monarch’s pre-petition expenses would have been
allowed in full because they were secured, rather than
being given a lower priority than post-petition administra-
tive expenses.3
In light of the aforementioned circumstances and the
eight long years that passed without any indication from
Monarch that it was continuing to assert a secured claim
for its post-petition expenses, the Trustee was entitled to
assume that Monarch’s secured claim was no longer viable
and that the Bankruptcy Code’s dual presumptions of valid-
ity and allowability with respect to this claim had been
overcome. Moreover, the Trustee’s objection to Claim Two
clearly implied that Monarch’s pre-petition and post-peti-
tion claims were being treated as unsecured. Thus, the
bankruptcy and district courts correctly held that the onus
3
See United States v. Darnell (In re Darnell), 834 F.2d 1263, 1265
(6th Cir. 1987) (“[A]s a general rule, if a lien is perfected, it must
be satisfied out of the asset(s) it encumbers before any proceeds of
the asset(s) are available to unsecured claimants, including those
having priority (such as holders of administrative claims).”) (citing
3 Collier on Bankruptcy para. 507.02[2] (15th ed. 1985)).
No. 03-3337 11
was on Monarch to reassert the secured status of its claim
for post-petition expenses in the face of the Trustee’s
objection, and Monarch failed to do so. Monarch’s consent
to the Trustee’s objection to Claim Two was a consent to the
treatment of its post-petition claim as regular (unsecured)
administrative expenses.
Monarch’s contention that a hearing is necessary to
determine whether its consent to the Trustee’s objection
was an intentional relinquishment of its claimed lien is
without merit. Monarch’s designated recipient of bank-
ruptcy notices relating to Claim Two was not “akin to a
corporation’s registered agent” or some other unaffiliated
entity (Monarch’s Br. at 31), but rather was Monarch’s own
general counsel. And Monarch’s general counsel would have
been remiss in his obligation to the corporation if he had
merely received important legal notices such as the
Trustee’s objection to Claim Two and forwarded them to
Monarch’s president without advice or comment. This is
true even if the advice consisted of simply advising Mon-
arch’s president to consult with specialized bankruptcy
counsel before signing the consent form. It is true that a
waiver is an intentional relinquishment of a known right.
See Kontrick v. Ryan, 124 S. Ct. 906, 917 n.13 (2004). But
we have held that the Trustee’s written objection was a
clear treatment, even if by implication, of Monarch’s post-
petition claim as an unsecured administrative expense.
If Monarch’s president considered himself insufficiently
well-versed in the intricacies of bankruptcy matters to know
what he was consenting to, he was surely, as a senior
corporate executive, sufficiently sophisticated to know that
he should consult with, at minimum, the company’s general
counsel. Monarch’s president was given the opportunity to
obtain the knowledge required for an informed consent to
the Trustee’s objection when that written notice of objection
was sent to Monarch’s general counsel. Due process cer-
tainly does not require that there be a warning to consult
12 No. 03-3337
counsel before giving one’s consent to the proposed treat-
ment of a bankruptcy claim. And consent is not rendered
ineffective by the failure of a corporate executive to obtain
competent advice on bankruptcy matters. Any strategic
errors made by Monarch or its agents in pursuing its
bankruptcy claims are not for us to redress.
B.
However, even if Monarch had not consented to the treat-
ment of its post-petition expenses as an unsecured claim for
administrative expenses, we would still conclude that
Monarch did not have a lien securing this claim and that
summary judgment was correctly granted to Midway. At
Illinois common law,
[a] bailment is defined as “the delivery of goods for some
purpose, upon a contract, express or implied, that after
the purpose has been fulfilled they shall be redelivered
to the bailor, or otherwise dealt with according to his
directions or kept [until] he reclaims them.” The elements
necessary for a bailment include (1) “an agreement by
the bailor to transfer or deliver and the bailee to accept
exclusive possession of goods for a specified purpose”;
(2) “the actual delivery or transfer of exclusive posses-
sion of the property of the bailor to the bailee”; and (3)
“acceptance of exclusive possession by the bailee.”
Spirit of Excellence, Ltd. v. Intercargo Ins. Co., 334 Ill. App.
3d 136, 147 n.1 (Ill. App. Ct. 2002) (citations omitted).
The bankruptcy court found that Monarch had “arguably
satisfied the three elements of a bailment” but found that
doing so “did not automatically give rise to a lien.” (Monarch’s
Br. at 37.) The bankruptcy court found that Monarch did
not meet the requirements for an artisan’s lien (which is a
particular form of bailee’s lien) as set out in Lake River v.
No. 03-3337 13
Carborundum Corp.,4 because although “Monarch certainly
provided a service to the debtors, . . . it did not add any
value to [the] jet fuel, the property upon which [it] asserts
a lien.” (Monarch’s Short Appx., tab 3, at 12.)
Monarch argues that at Illinois common law, a lien may
still be had based on the labor or services furnished by the
bailee. “The right to a lien for . . . services arises upon the
furnishing of such . . . services and by force of a statute, an
express contract, an implied contract or the usages of trade
or commerce. The right to retain possession of the property
to enforce a possessory lien continues until such time as the
charges for such . . . services are paid.” Bull v. Mitchell, 114
Ill. App. 3d 177, 181 (Ill. App. Ct. 1983). This is true even
where that labor does not result in increased market value.
See Chicago G.W.R. Co. v. American McKenna Process Co.,
1916 WL 2228, *2 (Ill. App. Ct. 1916) (“Appellant argues
that judgment on this plea is bad because the rehandling
did not enhance the value of the rails, and a lien only exists
where the work of a laborer enhances value. This is true as
a rule, but in applying it, ‘value’ does not always mean
market value.”); Restatement (First) of Security § 61, cmt.
(d).
Although Monarch has made an argument that could be
persuasive under certain circumstances, it does not work
here. Monarch’s line of reasoning fails at the very first step:
the establishment of a relationship giving rise to a lien. Let
us review what took place with respect to Midway’s jet fuel in
accordance with Midway’s contract with Monarch. Midway
arranged for jet fuel to be delivered to its fuel tank storage
farm. Monarch provided basic management services for
Midway’s tank farm and was responsible for transportation
of the jet fuel between Midway’s tank farm and Midway’s
4
769 F.2d 1284 (7th Cir. 1985).
14 No. 03-3337
aircraft for refueling/defueling.5 Although Monarch admit-
tedly had “possession and control” over Midway’s tank farm,
this does not mean that the jet fuel was delivered to
Monarch when it was put into the storage tanks, since
Monarch did not own or lease the storage tanks. Nor was
the jet fuel delivered to the fuel tanks “for some purpose”
that Monarch was to fulfill (e.g., storage). The “purpose” of
Monarch’s services with respect to the fuel in the storage
tanks was merely basic management of the tank farm;
Monarch was not required to do anything with or to the jet
fuel while it was stored in Midway’s tanks.
Monarch is essentially arguing that it is entitled to a lien
for management services. But Monarch’s argument that a
bailment of Midway’s jet fuel was created by virtue of
Monarch’s possession and control over Midway’s fuel tanks
fails; Monarch’s role with respect to the fuel tanks is that of
an agent. We do not believe that Monarch has demon-
strated that what occurred when the jet fuel was placed in
Midway’s tanks was “the delivery of goods for some purpose,
upon a contract, express or implied, that after the purpose
5
To the extent that Monarch’s lien is claimed to arise from the
provision of transportation services and is said to attach to the jet
fuel in Monarch’s trucks, we note that Monarch was not acting as
a common carrier in its provision of transportation services. If it
were, there would be a carrier’s lien for payment of freight. But
since Monarch’s provision of transportation services was not in
the capacity of a common carrier, Monarch is not entitled to a
possessory lien at common law for transportation services. See
Restatement (First) of Security § 61, cmt. (g) (1941) (“Private car-
riers have less onerous duties and responsibilities [than common
carriers] and have no possessory liens unless granted by contract
or statute.”). Monarch’s contract with Midway does not provide for
any possessory liens, and Monarch has not asserted any statutory
liens, so it is not entitled to a lien on the fuel in its trucks to pay
transportation charges.
No. 03-3337 15
has been fulfilled they shall be redelivered to the bailor.”
Spirit of Excellence, 334 Ill. App. 3d at 147 n.1. Monarch’s
management of the fuel tank farm in which the jet fuel was
stored did not, after all, purport to impact the jet fuel
directly and is not among those services recognized at
common law as giving rise to a possessory lien.6 Cf. Restate-
ment (First) of Security § 61 (1941) (“The service necessary
to create a lien is limited to work actually performed upon
the chattel itself. There is no lien for intellectual labor
although it may have been wholly confined to the chattel as
a subject. Thus an art expert to whom a painting has been
delivered for appraisal and opinion cannot retain the
painting as security for his fee, in the absence of a special
contract for a lien.”).
Thus, under the circumstances of this case, Monarch has
not demonstrated that a bailment ever took place. There
was no delivery of goods into Monarch’s possession for some
purpose to be served—at least, no purpose recognized by the
common law as giving rise to a possessory lien for services.
We agree with the bankruptcy court that Monarch is not
entitled to a lien on the jet fuel, and there is therefore no
basis for Monarch’s secured claim for its expenses, either
pre-petition or post-petition.
6
Those circumstances/services recognized as giving rise to enti-
tlement to a possessory lien include: (1) “a bailee who at the re-
quest of the bailor does work upon or adds materials to a chattel”
(which does not necessarily require the chattel’s market value to
increase); (2) transportation of a chattel by a common carrier; (3)
a hotelkeeper; (4) storage of a chattel provided by a warehouse-
man; (5) finding a chattel for which a specific reward is offered; (6)
sale of a chattel, if the seller is in possession; (7) advancing money
or incurring liability by an agent on behalf of his principal in
respect of a chattel in his possession; (8) a landlord who enters
and seizes chattels in the tenant’s possession after a default on
rent; and (9) a possessor of land who seizes a thing doing damage
on the land. Restatement (First) of Security § 61 (1941).
16 No. 03-3337
III.
We are, frankly, somewhat baffled by Monarch’s pursuit
of this appeal, given the high costs of litigation and the rela-
tively small amount in dispute. But although we cannot
explain Monarch’s litigation strategy, we can express a hope
that the resolution of this claim will bring Midway Airlines
one step closer to terminating its long-standing bankruptcy
estate. For the reasons stated above, the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-04
| {
"pile_set_name": "FreeLaw"
} |
986 F.2d 499
U.S.v.Uchannaya
NO. 92-1320
United States Court of Appeals,Second Circuit.
Dec 02, 1992
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
2008 UT App 226
Clearfield City, Plaintiff and Appellee,
v.
Ryan William Hoyer, Defendant and Appellant.
Case No. 20070433-CA
Court of Appeals of Utah
Filed June 12, 2008
Attorneys: Stephen D. Spencer, Murray, for Appellant
Mark L. Shurtleff, Joanne C. Slotnik, Martin B. Bushman, and John P. Soltis, Salt Lake City, for Appellee
Before Judges Thorne, Billings, and Davis.
OPINION
THORNE, Associate Presiding Judge:
¶1 Ryan William Hoyer appeals from his conviction of illegally taking protected wildlife in violation of Utah Code section 23-20-3, see Utah Code Ann. § 23-20-3 (2007). We affirm Hoyer's conviction.
BACKGROUND
¶2 Hoyer is an amateur herpetologist specializing in the study of the species of snake commonly known as the rubber boa. On January 9, 2004, Division of Wildlife Resources (DWR) executed a search warrant at Hoyer's home as part of "Operation Slither." Operation Slither was an investigation intended to target individuals who were involved in the illegal possession and trade of reptiles. During the search, DWR seized a computer, documents, and about sixty-five rubber boa snakes.
¶3 On September 15, 2004, Hoyer was charged in the Davis County Justice Court with illegally taking, transporting, selling, or purchasing protected wildlife in violation of Utah Code section 23-20-3. On March 24, 2005, the Davis County Attorney moved to dismiss the information because of jurisdictional concerns. The motion was granted and the case was dismissed.
¶4 On November 18, 2005, charges were refiled against Hoyer in the Clearfield City Justice Court. Hoyer filed a pretrial motion arguing that the statute under which he was charged should be deemed void for vagueness. The justice court judge reserved ruling on the motion until trial, and eventually denied the motion. On October 17, 2006, Hoyer was convicted of violating Utah Code section 23-20-3 by unlawfully possessing approximately thirty-eight rubber boa snakes imported into Utah without a valid certificate of veterinary inspection or entry permit, both of which are required by Utah Administrative Code rule R657-53-21(2). Hoyer was acquitted of other charges of unlawfully possessing snakes illegally collected in California and unlawfully propagating snakes in captivity.
¶5 Hoyer appealed his justice court conviction to the district court and, after trial de novo, was again convicted of importing approximately thirty-eight rubber boa snakes without a veterinary inspection or certificate of registration. On the day of trial, the district court denied Hoyer's motion in limine challenging the constitutionality of Utah Code section 23-20-3 and related regulations, and held that the statute was not unconstitutionally vague. Hoyer appeals the district court's ruling upholding the constitutionality of section 23-20-3.
ISSUE AND STANDARD OF REVIEW
¶6 Hoyer's sole argument on appeal is that Utah Code section 23-20-3, as it incorporates various administrative rules under the circumstances of this case, is void for vagueness. A constitutional challenge to a statute presents a question of law that we review for correctness. See State v. Tenorio, 2007 UT App 92, ¶ 5, 156 P.3d 854. "When addressing a constitutional challenge to a statute, we presume that the statute is valid and resolve any reasonable doubts in favor of constitutionality." State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218.
ANALYSIS
¶7 Hoyer's appeal challenges the constitutionality of Utah Code section 23-20-3 as it was applied in this case to enforce Utah's importation requirements for reptiles. Hoyer argues that language contained in the Utah Administrative Code pertaining to importation requirements is so confusing that it renders his conviction void under the doctrine of vagueness. We disagree and affirm Hoyer's conviction.
¶8 "'As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" State v. Green, 2004 UT 76, ¶ 43, 99 P.3d 820 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). In challenging a statute for vagueness, "it is not enough for the defendant to merely `inject doubt as to the meaning of words where no doubt would be felt by the normal reader.'" State v. Ansari, 2004 UT App 326, ¶ 45 n.6, 100 P.3d 231 (quoting State v. MacGuire, 2004 UT 4, ¶ 18, 84 P.3d 1171). Rather, we will uphold the challenged enactment so long as "'it is clear what the ordinance as a whole prohibits.'" Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)).
¶9 Here, Hoyer was charged with unlawful possession of wildlife. The amended information alleged that Hoyer had, in violation of Utah Code section 23-20-3, "unlawfully possessed approximately 38 rubber boa snakes imported to Utah without a valid certificate of veterinary inspection and entry permit issued by the Utah Department of Agriculture and Food as required in Utah Admin. Code [s]ection R657-53-21(2)." Utah Code section 23-20-3 states:
(1) Except as provided in this title or a rule, proclamation, or order of the Wildlife Board, a person may not:
(a) take or permit his dog to take:
(i) protected wildlife or their parts;
(ii) an occupied nest of protected wildlife; or
(iii) an egg of protected wildlife;
(b) transport, ship, or cause to be shipped protected wildlife or their parts;
(c) sell or purchase protected wildlife or their parts; or
(d) possess protected wildlife or their parts unaccompanied by a valid license, permit, tag, certificate of registration, bill of sale, or invoice.
Utah Code Ann. § 23-20-3(1). Utah Administrative Code rule R657-53-21(2) urther states that, "[a]s provided in Rule R58-1, the Department of Agriculture and Food requires a valid certificate of veterinary inspection and an entry permit number before any amphibian or reptile may be imported into Utah." Utah Admin. Code R657-53-21(2) (emphasis added).
¶10 We ascertain no vagueness in the statute or rule as they have been applied to Hoyer's conduct. Rule R657-53-21(2) is very clear that both a certificate of veterinary inspection and an entry permit are required before a person may lawfully import "any amphibian or reptile" into the state of Utah. See id. The district court found that Hoyer had imported reptiles into the state without obtaining the required inspection and permit numberthe very action that the rule prohibits. As such, we cannot say that the rule, or the statute enforcing it, "fails to provide a `person of ordinary intelligence a reasonable opportunity to know what is prohibited.'" See State v. Germonto, 2003 UT App 217, ¶ 11, 73 P.3d 978 (quoting Grayned, 408 U.S. at 108).
¶11 Hoyer's argument to the contrary focuses entirely on the language of rule R58-1-4, which is specifically referenced in rule R657-53-21(2). See Utah Admin. Code R657-53-21(2) ("As provided in Rule R58-1 . . . ."). Rule R58-1-4, entitled "Interstate Importation Standards," states:
A. No animal, poultry or bird of any species or other animal including wildlife, that is known to be affected with or has been exposed to a contagious, infectious or communicable disease, or that originates from a quarantined area, shall be shipped, transported or moved into the State of Utah until written permission for such entry is first obtained from Veterinary Services Division, United States Department of Agriculture, Animal and Plant Health Inspection Service, and Utah Department of Agriculture and Food, State Veterinarian or Commissioner of Agriculture and Food.
B. Certificate of Veterinary Inspection. An official Certificate of Veterinary Inspection issued by an accredited veterinarian is required for importation of all animals and poultry. A copy of the certificate shall be immediately forwarded to the Utah Department of Agriculture and Food by the issuing veterinarian or the livestock sanitary official of the state of origin.
C. Import Permits. Livestock, poultry and other animal import permits may be issued by telephone to the consignor, a consignee or to an accredited veterinarian responsible for issuing a Certificate of Veterinary Inspection, and may be obtained from the Utah Department of Agriculture and Food . . . .
Id. R58-1-4.
¶12 Hoyer argues that rule R58-1-4(B), which requires veterinary inspections for "all animals and poultry" imported into the state, does not give fair notice that it also applies to reptiles. See id. R58-1-4(B). While Hoyer acknowledges that reptiles are animals, he argues that the definition of "animals" for purposes of subsection B is implicitly limited by the language of subsection A. Subsection A requires written permission to import an "animal, poultry or bird of any species or other animal including wildlife." See id. R58-1-4(A). Hoyer argues that by distinguishing "other animal[s] including wildlife" from animals generally, see id., subsection A removes reptilian wildlife from the general category of animals throughout the remainder of the rule.[1] See generally Nephi City v. Hansen, 779 P.2d 673, 675 ("[W]here general terms follow specific ones, the rules of construction, . . . require that the general terms be given a meaning that is restricted to a sense analogous to the preceding specific terms.").
¶13 We disagree with Hoyer's argument for several reasons. First, rule R657 is quite clear that the state "requires a valid certificate of veterinary inspection and an entry permit number before any amphibian or reptile may be imported into Utah." Utah Admin. Code R657-53-21(2) (emphasis added). Although this broad requirement is modified by the introductory clause "[a]s provided in Rule R58-1," Hoyer's interpretation of rule R58-1-4 would limit the requirement of a veterinary inspection to only those reptiles known to be exposed to disease or originating in a quarantined area. Taken to its logical extreme, the same argument would exempt reptiles from the separate entry permit requirement altogether. We are not inclined to so drastically limit the otherwise clear intent of rule R657-53-21 in the absence of equally clear direction to the contrary in rule R58-1-4.
¶14 Nor do we find such clear direction to the contrary in rule R58-1-4, despite Hoyer's statutory interpretation argument. The language upon which Hoyer relies does not purport to be a definition affecting the entire rule, but merely lists the categories of creatures governed by subsection A. We see no reason that the expansive language of subsection A should be deemed to limit the equally expansive language of subsections B and C: "all animals and poultry" and "[l]ivestock, poultry and other animal[s]." Id. R58-1-4(B), -(C) (emphasis added). Reptiles are clearly a type of animal and, as such, are included within any reasonable reading of the rule.
¶15 An ordinary person, reading the provisions of Utah law addressed herein, would understand that persons importing reptiles or any other animals into the state must obtain a veterinary inspection and entry permit in order to comply with the law. Accordingly, the statute and rules forming the basis of Hoyer's conviction are not void for vagueness, and we affirm that conviction.
CONCLUSION
¶16 Hoyer has failed to demonstrate that Utah Code section 23-20-3 and relevant provisions of the Utah Administrative Code present a problem of unconstitutional vagueness. The challenged provisions give clear notice that reptiles may not be imported into Utah without a veterinary inspection and entry permit, the very activity for which Hoyer was convicted. Accordingly, we affirm Hoyer's conviction.
¶17 WE CONCUR: Judith M. Billings, Judge, James Z. Davis, Judge.
NOTES
[1] Hoyer does not expressly argue that the language of subsection A similarly limits subsection C, which governs import permits for "[l]ivestock, poultry, and other animal[s]." See Utah Admin. Code R58-1-4(C). Nevertheless, we consider the potential impact of Hoyer's argument on subsection C as a part of our consideration of the statutory scheme as a whole. We note that Hoyer's conviction also rested on his failure to obtain import permits, and thus he would be unable to obtain relief unless his argument was to also invalidate subsection C.
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1018
ILLINOIS ASSOCIATION OF MORTGAGE BROKERS,
Plaintiff-Appellant,
v.
OFFICE OF BANKS AND REAL ESTATE
and WILLIAM A. DARR,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 5151—Charles R. Norgle, Sr., Judge.
____________
ARGUED SEPTEMBER 17, 2002—DECIDED OCTOBER 21, 2002
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge. The Alternative Mortgage
Transaction Parity Act of 1982, 12 U.S.C. §§ 3801-06,
provides that state-chartered lenders may make variable-
interest home mortgage loans (called “alternative mortgage
transactions”) on the same terms as federally-chartered
lenders, “notwithstanding any State constitution, law, or
regulation.” 12 U.S.C. §3803(c). The Home Ownership and
Equity Protection Act of 1994, codified at 15 U.S.C.
§§ 1602(aa), 1610, 1639, and 1640, forbids lenders from
2 No. 02-1018
using particular terms in home mortgage transactions. The
question presented by this appeal is whether the 1994 Act’s
regulation of all home mortgage lenders repeals the 1982
Act’s rule of parity between state and federal institutions in
alternative mortgage transactions. The district court an-
swered yes and held that, as a result, regulations imposing
extra restrictions on state-chartered lenders in Illinois are
valid. Illinois Ass’n of Mortgage Brokers v. Office of Banks
& Real Estate, 174 F. Supp. 2d 815 (N.D. Ill. 2001). We
answer no. The 1994 Act does not repeal the 1982 Act in so
many words, and implied repeal occurs only when the
statutes are irreconcilable. See J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred International, Inc., 534 U.S. 124, 141-44
(2001) (collecting authority). All the district court con-
cluded, however, is that the 1982 and 1994 Acts concern the
same subject matter. That is not, and never has been,
enough to show that the most recent statute repeals its
predecessors. Substantive rules in one law are not logically
incompatible with an equal-treatment rule in another, so
both remain effective.
What Illinois has done is to issue regulations that aug-
ment—for state-chartered lenders only—restrictions of the
kind imposed by the 1994 Act. The handling of balloon
payments provides an example. Under the 1994 Act, if a
home equity loan carries an interest rate more than 10%
over the rate for Treasury securities of comparable matu-
rity, then the loan may not include a balloon payment
(which effectively compels refinancing) unless the loan’s
duration exceeds five years. 15 U.S.C. §§ 1602(aa), 1639(e).
Under the state regulations, if a home equity loan carries
an interest rate more than 6% over the Treasury rate (8%
for junior mortgages), then no balloon payment may be
scheduled before the loan’s 15th year. 38 Ill. Admin. Code
§§ 1050.155, 1050.1270. Thus a federal lender lawfully may
extend mortgage credit at 9% over the Treasury rate with
a balloon payment in Year 3, or at 12% over the Treasury
No. 02-1018 3
rate with a balloon payment in Year 6, but a lender char-
tered in Illinois is forbidden to make either of these loans.
The state regulations create other differences concerning
prepayment penalties and amortization schedules, but it is
unnecessary to detail them.
Plaintiff, an association of mortgage lenders, filed this
suit seeking a declaratory judgment that the state regula-
tions are preempted by virtue of §3803(c) as applied to
lenders that comply with all applicable federal laws and
regulations. The district judge concluded that the Associa-
tion has standing as a representative of its members. 174 F.
Supp. 2d at 818-20. The point is uncontested on appeal, but
because it is jurisdictional we have given it independent
consideration and agree with the judge’s conclusion.
Another jurisdictional issue escaped the district judge’s
eye, however: the state agency contends that under the
eleventh amendment a federal court lacks jurisdiction to
entertain the suit. The Office of Banks and Real Estate, an
agency of state government and thus part of the State of
Illinois, is entitled to the State’s immunity from suit. The
Association contends that as long as it seeks prospective
relief the eleventh amendment melts away. This is wrong,
see Cory v. White, 457 U.S. 85, 90-91 (1982); Alabama v.
Pugh, 438 U.S. 781 (1978), but there is no need to consider
whether the Constitution gives Illinois an immunity unless
some federal statute gives the Association a claim for relief.
See Lapides v. University of Georgia, 122 S. Ct. 1640, 1643
(2002). Section 3803(c) does not authorize lawsuits (though
it may provide a defense to them). To come into court as the
plaintiff, the Association relies on 42 U.S.C. §1983. Yet a
state is not a “person” for purposes of §1983 and therefore
may not be named as a defendant in a suit under that law.
See Arizonans for Official English v. Arizona, 520 U.S. 43,
69 (1997); Will v. Michigan Department of State Police, 491
U.S. 58 (1989). Plaintiff has not called to our attention any
4 No. 02-1018
other relevant federal statute that authorizes a suit directly
against a state or one of its agencies.
Nonetheless the agency’s director, William Darr, a second
defendant, is subject to suit even though relief would run
against him in his official capacity. See Will, 491 U.S. at 71
n.10. For such a person, Ex parte Young, 209 U.S. 123
(1908), eliminates any constitutional impediment to suit.
See also Verizon Maryland Inc. v. Public Service Commis-
sion of Maryland, 122 S. Ct. 1753 (2002). Although the
Supremacy Clause does not of its own force create rights
enforceable under §1983, some statutes with preemptive
force may do so. See Golden State Transit Corp. v. Los
Angeles, 493 U.S. 103, 107-08 (1989). It is not necessary for
us to determine whether the 1982 Act is such a statute, cf.
Gonzaga University v. Doe, 122 S. Ct. 2268 (2002), because
federal jurisdiction is supplied by 28 U.S.C. §1331 in any
event. For the reasons given in Illinois v. General Electric
Co., 683 F.2d 206, 211 (7th Cir. 1982), that statute supplies
jurisdiction when the plaintiff seeks declaratory relief
against regulation by a state agency and contends that the
agency has violated federal law by adopting particular
regulations. See also Northeast Illinois Regional Commuter
R.R. v. Hoey Farina & Downes, 212 F.3d 1010, 1015-16 (7th
Cir. 2000). So the agency must be dismissed as a defendant,
but the suit may proceed against Darr.
This opinion’s opening paragraph says all that is neces-
sary to resolve the principal issue on appeal: the 1994 Act
neither repeals the 1982 Act in terms nor is logically in-
consistent with it, so the two may coexist. Accord, National
Home Equity Mortgage Ass’n v. Face, 239 F.3d 633 (4th Cir.
2001). The Office of Thrift Supervision, which issues the
federal regulations in this field, agrees; the explanation
accompanying its latest set of rules, 67 Fed. Reg. 60542
(Sept. 26, 2002), demonstrates that the OTS views the 1982
Act as fully effective today. Illinois tries to make headway
with 15 U.S.C. §1610(b), which provides:
No. 02-1018 5
Except as provided in section 1639 of this title, this
subchapter does not otherwise annul, alter or affect
in any manner the meaning, scope or applicability
of the laws of any State, including, but not limited
to, laws relating to the types, amounts or rates of
charges, or any element or elements of charges,
permissible under such laws in connection with the
extension or use of credit, nor does this subchapter
extend the applicability of those laws to any class
of persons or transactions to which they would not
otherwise apply. The provisions of section 1639 of
this title do not annul, alter, or affect the applica-
bility of the laws of any State or exempt any person
subject to the provisions of section 1639 of this title
from complying with the laws of any State, with
respect to the requirements for mortgages referred
to in section 1602(aa) of this title, except to the ex-
tent that those State laws are inconsistent with any
provisions of section 1639 of this title, and then
only to the extent of the inconsistency.
This tells us that the 1994 Act does not itself preempt any
state law—except that state laws about the mortgage
transactions defined in §1602(aa) may not be more tolerant
than the federal floor adopted in §1639. This does not alter
the preemptive effect of other statutes, however; §1610(b)
deals with “this subchapter” of Title 15, while the 1982 Act
is codified in Title 12. Nor, contrary to Illinois’ view, does
§1610(b) say that if a given loan meets the criteria of
§1602(aa) then states may add restrictions to the list in
§1639. Although §1610(b) provides that nothing in the 1994
Act forbids states from regulating, it does not foreclose the
possibility that some other federal law contains such a
prohibition.
The City of Chicago, appearing as amicus curiae, adopts
a different tack. It contends that §3803(c) does not provide
6 No. 02-1018
the clear statement required for preemption. What §3803(c)
says is this:
An alternative mortgage transaction may be made
by a housing creditor in accordance with this sec-
tion, notwithstanding any State constitution, law,
or regulation.
Nothing could be clearer, provided that we know what an
“alternative mortgage transaction . . . in accordance with
this section” is. Section 3802(1) defines it this way:
the term “alternative mortgage transaction” means
a loan or credit sale secured by an interest in resi-
dential real property, a dwelling, all stock allocated
to a dwelling unit in a residential cooperative hous-
ing corporation, or a residential manufactured
home (as that term is defined in section 5402(6) of
Title 42)—
(A) in which the interest rate or finance
charge may be adjusted or renegotiated;
(B) involving a fixed-rate, but which im-
plicitly permits rate adjustments by having
the debt mature at the end of an interval
shorter than the term of the amortization
schedule; or
(C) involving any similar type of rate,
method of determining return, term, repay-
ment, or other variation not common to tra-
ditional fixed-rate, fixed-term transactions,
including without limitation, transactions
that involve the sharing of equity or appre-
ciation;
described and defined by applicable regulation[.]
This points in turn to “applicable” regulations issued by the
OTS. Given the way §3802(1) works, a loan is not an “alter-
No. 02-1018 7
native mortgage transaction . . . in accordance with this
section” unless it meets the descriptions and definitions of
the OTS’s regulations. That’s the point of the statute’s title:
the Alternative Mortgage Transaction Parity Act of 1982.
State lenders get to do what federal lenders are allowed to
do by federal statutes and OTS regulations. Yet, Chicago
points out, these regulations may be opaque—and our read-
ing confirms that nonspecialists may struggle to grasp their
meaning. Because the federal regulations may be unclear,
and the statute makes preemption turn on the content of
these regulations, the preemption clause itself does not
meet the Supreme Court’s clarity requirement, Chicago in-
sists.
Some opinions say that Congress must be clear when it
sets out to oust states from exercising normal regulatory
powers. How far this principle extends beyond the norm
identifying states and municipalities as targets of federal
regulation, see Gregory v. Ashcroft, 501 U.S. 452 (1991), is
not a subject we need plumb. For §3803(c) is as express as
a preemption clause gets. The Supreme Court has never
insisted that clarity extend to all of the operative rules. The
holding in Gregory was that the ADEA did not apply to state
judges because Congress had not made the statute’s do-
main clear—and thus had not necessarily precipitated the
constitutional conflict resolved in Kimel v. Board of Re-
gents, 528 U.S. 62 (2000). The Court did not hold or even
hint that if the statute unambiguously covered senior state
officials, it nonetheless would be deemed inapplicable be-
cause some of the ADEA’s substantive rules may be hard to
interpret. Once Congress has made the decision to displace
state rules with federal rules, debate about the content of
those federal rules does not rescind the displacement.
Otherwise pension law and labor law would remain the
domain of state rules—for though both pension and labor
statutes clearly preempt state law, there are many ambigu-
ities in the federal rules. Just last Term, for example, the
8 No. 02-1018
Supreme Court divided five to four on the question whether
ERISA permits Illinois to review coverage decisions made by
welfare-benefit plans. See Rush Prudential HMO v. Moran,
122 S. Ct. 2151 (2002). It answered “to an extent” (see 122
S. Ct. at 2167 n.10, 2169-70 & nn.15, 16 for the reserva-
tions), and four Justices would have answered with a flat
“no.” Chicago apparently believes that because there was
doubt, the answer should have been a ringing “yes,” but
that is not how any of the nine Justices approached the
matter.
Chicago’s further argument that §3803(c) is unclear
because it applies only to “housing creditors”—which means
to lenders licensed by state law to make home mortgage
loans, see 12 U.S.C. §3802(2)—does not put a dent in the
statute’s scope. What Chicago is getting at is that states
might make compliance with substantive rules (such as “no
balloon payments before 15 years”) a condition of obtaining
a license; and an unlicensed lender can’t take advantage of
the preemption clause. Suffice it to say that Illinois has not
itself argued that it can pull a fast one on Congress in this
fashion. The point of the 1982 Act was to produce parity in
the terms on which lenders may extend credit. Smuggling
the regulation of terms into the criteria for issuing licenses,
and then arguing that state-chartered lenders lose all
benefits of the 1982 Act, would be a stunt unworthy of the
State of Illinois—and ineffective as a matter of federal law.
Nonetheless, Illinois does offer a back-door argument of
its own. It contends that §3803(c) preempts regulation of
“alternative mortgage transactions” but not particular
terms of those transactions. Let us return to the balloon-
payment example. Illinois contends that a balloon payment
is not itself an “alternative mortgage transaction,” so that
it may regulate lenders’ use of balloon payments in alterna-
tive mortgage transactions even if §3803(c) survives the
1994 Act (as we have held that it does). The premise of this
argument is doubtful; §3802(1) defines an alternative mort-
No. 02-1018 9
gage transaction as a variable-interest (or equity-sharing)
home equity loan, and §3802(1)(B) specifies that a balloon
payment makes an interest rate variable (by precipitating
refinancing at the latest market rate) even if the rate
nominally is fixed. So a balloon payment in a home mort-
gage loan is one feature that by definition identifies the
loan as an “alternative mortgage transaction.” Let this
pass. The deeper point is that §3803(c) does not depend on
the means a state chooses. The statutory question is
whether a loan is an alternative mortgage transaction, not
whether a particular term in the loan documents is itself an
alternative mortgage transaction. If a given transaction is
an “alternative mortgage transaction”—that is, if it is a
variable-rate home equity loan that a federal lender could
make under OTS regulations—then all state rules regulat-
ing that loan are preempted to the extent required for
parity. If a state could say “we’re regulating the terms but
not the transaction” then the 1982 Act would have been a
dead letter from the moment the President signed the
legislation, for its only objective is to permit state lenders
to offer terms from the palette of federal lenders.
Thus we hold that the new state regulations are pre-
empted under §3803(c) to the extent that they block state
lenders from extending credit on terms open under federal
regulations, when the lenders actually comply with the
federal regulations. (As the fourth circuit observed in Face,
239 F.3d at 635-36, 640, states retain full regulatory
authority with respect to lenders that do not comply with
federal rules.) It remains to be determined which, if any, of
the state regulations has a prohibited effect. The answer
depends not only on the provisions of the federal regula-
tions but also on the way in which these regulations work.
At one time the OTS believed that state lenders always
could use whatever terms were lawful for federal lenders.
More recently, however, the OTS has taken the position that
only federal regulations accompanied by a declaration of
10 No. 02-1018
preemptive force affect state law. See 67 Fed. Reg. at 60548
n.36. On this view states may put off limits to state-char-
tered lenders some of the terms that are lawful for federal
lenders. The district court must determine which of these
views is legally correct and then ascertain which provisions
of the state regulations are incompatible with the federal
regulations now in force. It would be premature for us to
address these subjects, on which we have not had the ben-
efit of adversarial presentation. Accordingly, the judgment
of the district court is vacated, and the case is remanded
with instructions to dismiss the Office of Banks and Real
Estate as a party and to issue a declaratory judgment re-
solving which state regulations are preempted by the
combination of §3803(c) and the OTS regulations governing
federal lenders.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-21-02
| {
"pile_set_name": "FreeLaw"
} |
846 F.Supp. 760 (1994)
Carl W. ENGELE, Jr., individually and as parent and natural guardian of Daniel L. Engele, Plaintiff,
v.
INDEPENDENT SCHOOL DISTRICT NO. 91, Thomas V. Hoppe, John W. Braun and Larry G. Johnson, Defendants.
Civ. No. 5-92-171.
United States District Court, D. Minnesota, Fifth Division.
March 21, 1994.
*761 *762 James Walter Balmer, Sean Michael Quinn, Falsani Balmer Berglund & Merit, Duluth, MN, for plaintiff.
Mark J. Hill, Mary A. Rice, Jardine Logan & O'Brien, St. Paul, MN, Raymond Lee Tahnk-Johnson, Hayes & Assoc., Eagan, MN, for defendants.
ORDER
DOTY, District Judge.
This matter is before the court on defendants' motion for summary judgment. Based on a review of the file, record and proceedings herein, and for the reasons stated below, the motion of defendants is granted in part and denied in part.
BACKGROUND
Daniel Engele ("Engele") is an Asian-American boy of Korean descent. Between 1988 and 1990, Daniel attended the Barnum Elementary School for fifth and sixth grade. While in fifth grade, Daniel started having problems with a group of his classmates who were white. The classmates began calling Daniel "slant-eyed commie," "chink" and "gook" on a daily basis. There is evidence that Daniel was called racist names in front of teachers. Daniel claims that on one occasion he discussed the problem with his sixth grade teacher, Beryl Rieke, and on a different occasion with Rita Johnson, another school teacher. Daniel contends that he told Mrs. Rieke and Mrs. Johnson that his classmates were calling him racist names. Both teachers allegedly expressed concern and indicated that they would try to take care of the problem. The classmates, however, continued *763 to call Daniel racist names on a daily basis. Daniel also claims he was the victim of ongoing assaults.
In the spring of 1990, Daniel apparently made peace with Phillip Sheldon ("Sheldon"), one of his classmates who had been harassing him. In May 1990, with less than two weeks remaining in the school year, Sheldon was killed in a recreational vehicle accident. The next day on the bus many students were discussing Sheldon's tragic death. At some point, a student told a joke that caused Daniel to laugh. Daniel's laughter angered his classmates, prompting them to begin a rumor that Daniel said he was glad Sheldon was dead and was laughing about his death.
The Barnum School District provided voluntary counseling sessions to help the students cope with their grief. Daniel's classmates attended a session with Pastor Dan Rieke. The classmates reported that Daniel had said he was glad Sheldon was dead; two classmates threatened that Daniel would "pay" for making the comment. Daniel was summoned to the session to try to resolve the conflict. Daniel denied making the callous remark. The classmates threatened to "get even" with Daniel unless he admitted making the statement and apologized. After encouragement from Pastor Rieke, Daniel relented and admitted making the remark and apologized. The classmates left the session angry and Daniel stayed behind.
Daniel told Pastor Rieke that he was scared by the threats because one classmate had a knife and the others would use their fists.[1] Daniel told Pastor Rieke that he would feel safer if he was allowed to go home and finish the balance of the school year there. Pastor Rieke said he would relay Daniel's concerns to the school principal, John Braun ("Braun"). Pastor Rieke met with Braun and indicated that the situation was serious. The school psychologist, Larry Johnson ("Johnson"), confirmed the volatile nature of the situation after meeting with Daniel individually and with his classmates. Braun met with Johnson and Thomas Hoppe, the school superintendent, to discuss the situation. Several options were considered but it was ultimately decided that Daniel should complete the school year at home for his personal safety.
Braun made clear that Daniel was not being punished for anything he might have said on the bus and Daniel concedes he was sent home for his safety. After telephoning Daniel's grandfather, Braun and Johnson took Daniel to his grandparents' home. Braun told Daniel's grandfather that Daniel was released for the rest of the school year for his protection. Braun then met with Daniel's classmates and warned them that threats and violence would not be tolerated. Braun indicated that the offending classmates would be held responsible if Daniel was harmed. In all, seven or eight students had threatened to harm Daniel. The classmates were not otherwise disciplined and were allowed to attend school for the rest of the year. Daniel stayed home during the last ten days of the 1990 school year. Homebound instruction was offered and school work was sent home but Daniel did not complete it. Daniel's academic standing apparently did not suffer, however, and he was passed to the seventh grade.
Daniel's father, Carl W. Engele, Jr. ("plaintiff"), brought suit on behalf of Daniel in federal court pursuant to 42 U.S.C. § 1983, asserting violations of Daniel's Fourteenth Amendment rights to due process and equal protection. Plaintiff alleges that defendants excluded Daniel from school without due process of law and violated equal protection by excluding Daniel from school while his white classmates who made threats were permitted to attend school for the remainder of the year. Plaintiff also asserts a cause of action under the Minnesota Human Rights Act. Defendants move for summary judgment on the section 1983 claim and seek to dismiss the state law claim based on immunity.
DISCUSSION
The court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, *764 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This standard mirrors the standard for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), which requires the trial court to enter judgment as a matter of law if there can be but one reasonable conclusion as to the verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249, 106 S.Ct. at 2510.
On a motion for summary judgment, the court views the evidence in favor of the nonmoving party and gives that party the benefit of all justifiable inferences that can be drawn in her favor. Id. at 250, 106 S.Ct. at 2511. The nonmoving party, however, cannot rest upon mere denials or allegations in the pleadings. Nor may the nonmoving party simply argue facts supporting its claim will be developed later or at trial. Rather the nonmoving party must set forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted. See Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511. If a plaintiff fails to support an essential element of a claim, however, summary judgment must issue because a complete failure of proof regarding an essential element renders all other facts immaterial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.
1. Section 1983 Claim
Section 1983 of Title 42 creates no substantive rights, but provides only a remedy when rights secured by federal law or the Constitution are deprived under color of state law. Lugar v. Edmondson, 457 U.S. 922, 924, 102 S.Ct. 2744, 2746, 73 L.Ed.2d 482 (1982). An underlying constitutional right must exist before a cause of action under section 1983 will lie. Plaintiff must show that the defendants violated a right, privilege or immunity protected by the Constitution or laws of the United States. The Fourteenth Amendment forbids state actors to "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. It also prohibits states to "deny to any person within its jurisdiction the equal protection of the laws." Id.
A. Claim Against the School District
The school district is liable under section 1983 only if an official policy or custom caused a violation of Daniel's constitutional rights. Monell v. New York Dep't of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978); Duerscherl v. Foley, 681 F.Supp. 1364, 1368-69 (D.Minn.1987), aff'd, 845 F.2d 1027 (8th Cir.1988). To avoid summary judgment, plaintiff must produce evidence sufficient to show a school district policy or custom violated Daniel's constitutional rights. Plaintiff has failed to make the requisite showing.
Plaintiff did not allege that an official school district policy violated Daniel rights guaranteed by the Constitution. The complaint is also devoid of any specific facts indicating the existence of such a policy. Accordingly, plaintiff's section 1983 claim against the school district is subject to dismissal under Rule 12(b)(6). Even if the claim were adequately pled, plaintiff has not made any showing that a school district policy or custom violated Daniel's constitutional rights. There is no evidence whatsoever that the school district had a policy, official or otherwise, for excluding students from school without due process or law. The evidence also fails to establish any school district policy to treat students differently because of their race or national origin. Without a showing of an official policy or custom that caused the alleged constitutional violations, plaintiff's section 1983 claims against the school district must fail.
B. Procedural Due Process
In order to maintain a due process claim, plaintiff must point to specific facts *765 which, if proven, would establish that defendants deprived Daniel of a constitutionally protected property or liberty interest. Board of Regents v. Roth, 408 U.S. 564, 569-71, 92 S.Ct. 2701, 2704-06, 33 L.Ed.2d 548 (1972).[2] Defendants concede that students facing expulsion or suspension from public school have property and liberty interests that qualify for protection under the due process clause. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). In Goss, the Supreme Court held that states may not withdraw the right to education "on the grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred." Id. (citation omitted). Defendants contend that because Daniel was not expelled, suspended or dismissed from school for misconduct, the Due Process Clause is not implicated. Plaintiff concedes that Daniel was not punished and that he was removed from school premises for his protection. Nonetheless, plaintiff insists that, regardless of the motivation, Daniel's exclusion from school triggers due process protection.
It is undisputed that the Supreme Court in Goss was concerned with the exclusion of students from the educational process based on misconduct.[3] However, the Eighth Circuit has held that, given the importance of education, due process is implicated where a student is excluded from public school for other reasons than misconduct. See Horton v. Marshall Public Schools, 769 F.2d 1323, 1333 (8th Cir.1985) (exclusion of students from public school based on ineligibility under state law). Thus, the court concludes that Daniel could not be excluded from public school for 10 days without being afforded some minimum due process protection.
Defendants also contend that due process is not implicated because the interference with Daniel's liberty or property interest was de minimis. See, e.g., Goss, 419 U.S. at 576, 95 S.Ct. at 737. Defendants argue that because homebound instruction was offered and school work was sent home to Daniel, any deprivation of Daniel's right to public education was de minimis. Plaintiff responds that although Daniel's school work did not suffer, his removal from public school deprived him of constitutionally protected educational benefits.
The intangible benefits of attending public school have long been recognized and protected by the federal courts. See Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 690, 98 L.Ed. 873 (1954). The Supreme Court has consistently held that the existence of a protected liberty or property interest does not depend on the gravity of the loss inflicted by the government's action. Rather, to determine whether due process requirements apply, the court "must look not to the `weight' but to the nature of the interest at stake." Roth, 408 U.S. at 570-71, 92 S.Ct. at 2705-06 (emphasis in original). The court concludes that the severity of the deprivation is not decisive of Daniel's basic right to due process, although it is an important factor to weigh in determining what process is due. See, e.g., Goss, 419 U.S. at 576, 95 S.Ct. at 737 (quoting Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972)).[4]
*766 "Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Plaintiff claims that the procedure employed by defendants in excluding Daniel afforded him inadequate notice and opportunity to be heard. The court disagrees. Daniel requested to be sent home and was told by school officials that he would finish the school year at home for his safety. Daniel consented to his removal from school; neither Daniel or his father complained about his exclusion from school until after the school year had ended. The Supreme Court's decision in Goss guarantees the student an "informal give-and-take" with school officials preferably prior to his exclusion from school. Goss, 419 U.S. at 584, 95 S.Ct. at 741. Daniel received this opportunity. Daniel was given adequate notice of the reasons for his exclusion and an opportunity to explain his side of the story. While the initial counseling session did not satisfy this requirement, the individual meetings with Pastor Rieke and Johnson allowed Daniel an opportunity to explain his side of the story in a neutral setting.
The Eighth Circuit has recognized that, absent a factual dispute, "it is sufficient that the school district give the student notice of the reasons for which he will be excluded from school and an opportunity to respond to and contest those reasons if the student desires." Horton, 769 F.2d at 1334. Plaintiff insists that more process was due because there was a factual dispute concerning whether Daniel made the statement attributed to him. Daniel was not excluded from school based on anything he might have said about Sheldon's death. Rather, Daniel was removed from school premises for his safety and because he had requested to go home. Those facts are not disputed. Plaintiff also complains that Daniel did not have an advocate during the hearing afforded. Trial-type procedures do not extend to brief exclusions from school. Rather, students are entitled to only rudimentary procedural safeguards. Goss, 419 U.S. at 581, 95 S.Ct. at 739. The court is satisfied that Daniel's due process rights were respected and that Daniel received all process due to him.
C. Substantive Due Process
Plaintiff can show that Daniel's right to substantive due process was denied if the defendants' decision to exclude him from school was arbitrary or capricious. Littlefield v. City of Afton, 785 F.2d 596, 607 (8th Cir.1986). Plaintiff claims that the defendants should have excluded the classmates who made threats against Daniel, rather than exclude Daniel from school. The court affords great deference to school administrators in matters such as maintaining order in the schools. The defendants' objective to protect Daniel was legitimate. Daniel requested to finish the rest of the school year at home and the defendants, after considering several options, decided that temporarily excluding Daniel from school was the best way to ensure his safety. The decision to exclude Daniel from school and provide homebound instruction was rationally related to that interest. Thus, the court concludes that plaintiff has failed to show that defendants violated Daniel's substantive due process rights.
D. Equal Protection
To state an equal protection claim, plaintiff must establish that defendants treated Daniel differently because of his race or national origin. Plaintiff claims that defendants violated equal protection by excluding Daniel from school based on safety concerns and not excluding or otherwise punishing his white classmates. There is absolutely no evidence that defendants treated Daniel differently based on his race or national origin. The undisputed evidence shows that defendants acted out of genuine concern for Daniel's safety. Moreover, plaintiff conceded in his deposition that the actions taken by defendants were not based on Daniel's race or national origin. Accordingly, the court concludes that plaintiff has failed to show that *767 defendants violated Daniel's right to equal protection.
2. Minnesota Human Rights Act Claim
Plaintiff asserts a claim of discrimination under the Minnesota Human Rights Act ("MHRA"). On January 17, 1991, plaintiff filed a charge of discrimination with the Minnesota Department of Human Rights against Independent School District No. 91. The Department conducted an investigation and, on March 5, 1992, found probable cause to believe that the school district had committed an unfair discriminatory practice in violation of Minn.Stat. § 363.03.
The MHRA provides that it is an unfair discriminatory practice for an educational institution "[t]o discriminate in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby to any person because of race ... or national origin...." Minn.Stat. § 363.03, subd. 5(1). Plaintiff claims that defendants knew or should have known that Daniel was being verbally and physically harassed by other students based on his race and national origin. Plaintiff also asserts that by failing to take timely and appropriate action, defendants denied Daniel the full utilization of and benefit from his public education. Viewing the evidence in favor of plaintiff, the court finds that plaintiff has established a prima facie case that defendants violated the MHRA by failing to provide Daniel a learning environment free from racial and national origin discrimination.[5]
A. Immunity Defense
Defendants claim that plaintiff's claim under the Minnesota Human Rights Act ("MHRA") should be dismissed on the grounds of official and discretionary immunity. That argument, insofar as it is based on official immunity, cannot survive the decision of the Minnesota Court of Appeals in State of Minnesota, by Beaulieu v. City of Mounds View, 498 N.W.2d 503 (Minn.Ct.App.1993), pet. for rev. granted, No. C3-92-1780 (Minn. June 9, 1993). In Beaulieu, the court held that the common law doctrine of official immunity does not apply to discrimination claims under the MHRA. Because Beaulieu is the best evidence of Minnesota law, the court must adhere to that decision.[6]
Defendants also assert discretionary function immunity under Minnesota law. The source of discretionary function immunity is Minn.Stat. § 466.03, subd. 6 (1992), which precludes municipal tort liability for claims "based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." "Generally, this immunity protects governmental conduct at the planning or policymaking level, while conduct at the operational level is not protected." Olson v. Ramsey County, 509 N.W.2d 368, (Minn.1993) (citing Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988)). The key inquiry is whether the challenged governmental conduct involves the balancing of public policy objectives that can be made only by the legislative branch of government. Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn.1992).[7]
*768 The burden is on defendants to prove that their conduct is immune under Minn.Stat. § 466.03, subd. 6. In analyzing any immunity question it is essential to identify the precise governmental conduct at issue. Plaintiff challenges the failure of defendants to respond appropriately to racial and national origin discrimination of which they were aware. The challenged conduct was not at the planning or policy level where discretionary immunity usually applies. Nor was the challenged conduct of a policy-making nature. Accordingly, the court concludes that defendants are not immune under the discretionary function exception.[8]
3. Claim for Punitive Damages
Defendants seek to strike plaintiff's claim for punitive damages based on Minnesota Statute § 549.191 which prohibits pleading punitive damages without leave of court. Plaintiff claims that the application of Minn. Stat. § 549.191 in federal courts is limited to diversity cases. Because this action is grounded in federal question jurisdiction, plaintiff contends that Minn.Stat. § 549.191 does not necessarily apply.
In recent years, the federal district court in Minnesota has consistently applied Minn. Stat. § 549.191 in diversity cases.[9] In Daines v. City of Mankato, 754 F.Supp. 681, 704 (D.Minn.1990), the court held that the requirements of § 549.191 do not apply to claims for punitive damages asserted under § 363.071 of the MHRA. The court finds the reasoning of that decision persuasive and denies defendants motion to strike plaintiff's claim for punitive damages.
CONCLUSION
The court concludes that plaintiff has failed to establish a violation of Daniel's due process and equal protection rights guaranteed by the Fourteenth Amendment. Because the court concludes that no constitutional violation occurred, it need not reach the issue of defendants' qualified immunity under section 1983. With respect to plaintiff's claim under the MHRA, the court holds that defendants are not entitled to official or discretionary function immunity. The court also declines to strike plaintiff's claim for punitive damages at this time.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendants' motion for summary judgment on plaintiff's § 1983 claim is granted;
2. Defendants' motion for summary judgment on plaintiff's claim under the Minnesota Human Rights Act is denied;
3. Defendants' motion to strike plaintiff's claim for punitive damages is denied.
NOTES
[1] Pastor Rieke did not see a knife; nor did any of Daniel's classmates threaten to use a knife during the session.
[2] Plaintiff initially asserted that the defendants violated the Fourteenth Amendment by failing to protect Daniel from the threats and assaults of his classmates. Plaintiff did not directly address this theory in his brief and appeared to abandon it in oral argument before the court. The court notes that such a claim would fail in light of the Eighth Circuit's decision in Dorothy J. v. Little Rock School District, 7 F.3d 729 (8th Cir.1993). In Dorothy J., a student claimed that his due process rights were violated because the school district and its employees as state actors failed to protect him from assault by another private actor. Id. at 731. The Eighth Circuit determined that the state did not a owe constitutional duty to protect students who attended public school under state mandate. Id. at 732. Thus, defendants had no constitutional duty under the Fourteenth Amendment to protect Daniel from his peers.
[3] See Goss, 419 U.S. at 581, 95 S.Ct. at 739 (Due Process Clause requires at least "rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.").
[4] The court recognizes that there was an immediate need to send Daniel home for his safety and to preserve school order. In fact, plaintiff admits there was a legitimate need to remove Daniel from school without delay. If Daniel had only been sent home for one day to restore security, the Due Process Clause would not be implicated because any deprivation would have been de minimis. The court need not address that hypothetical situation, however, as Daniel was excluded from attending school for 10 days, not one.
[5] The MHRA also prohibits educational institution "[t]o exclude, expel, or otherwise discriminate against ... a person enrolled as a student because of race ... or national origin...." Minn.Stat. § 363.03, subd. 5(2). Plaintiff claims that defendants violated the MHRA by excluding Daniel from school in May 1990. This claim must fail as plaintiff concedes, and the court has also concluded, that the exclusion of Daniel from school was not based on his race or national origin.
[6] The court admonishes counsel for defendants for violating their ethical obligations by failing to disclose the Beaulieu decision. The infraction is particularly egregious because the law firm involved in the Beaulieu case is the same that represents defendants here.
[7] In contrast, official immunity is a common law doctrine which, in the absence of a willful or malicious wrong, protects a public official who is "charged by law with duties which call for the exercise of his judgment or discretion." Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988) (quotation omitted). Official immunity involves judgment exercised at the operational level rather than the policy-making level, and it requires something more than ministerial duties. Pletan, 494 N.W.2d at 40. Duties are ministerial when they are certain and involve "merely the execution of a specific duty arising from fixed and designated facts." Elwood, 423 N.W.2d at 677 (quotation omitted).
[8] Plaintiff contends that discretionary function immunity does not apply to claims under the MHRA. Minnesota courts have not addressed the issue. Because the court concludes that defendants are not entitled to discretionary function immunity, it need not resolve the issue raised by plaintiff.
[9] See, e.g., Security Sav. Bank v. Green Tree Acceptance, Inc., 739 F.Supp. 1342, 1352 (D.Minn. 1990); Zeelan Indus. Inc. v. de Zeeuw, 706 F.Supp. 702, 703 (D.Minn.1989); Kuehn v. Shelcore, Inc., 686 F.Supp. 233, 234 (D.Minn.1988); Fournier v. Marigold Foods, Inc., 678 F.Supp. 1420, 1422 (D.Minn.1988).
| {
"pile_set_name": "FreeLaw"
} |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 5, 2007
No. 06-15723 THOMAS K. KAHN
CLERK
D. C. Docket Nos.
06-60299-CV-CMA
95-24079-BKC-JK
In Re: LINDA JANE GAUL,
Debtor,
__________________________________________________________________
DWIGHT H. MATLACK,
LINDA MCVEIGH MATLACK,
Plaintiffs-Appellants,
versus
LINDA JANE GAUL,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(September 5, 2007)
Before DUBINA and MARCUS, Circuit Judges, and PROCTOR,* District Judge.
PER CURIAM:
This is an appeal from the district court’s judgment affirming the
bankruptcy court’s order denying the Matlack’s request for relief from stay. The
basis of the bankruptcy court’s ruling was that the settlement agreement between
the parties was an executory contract since the debtor’s obligation included a
possible payment to the Matlacks of the sum of $200,000 and was not merely an
obligation to transfer property to them. The district court entered a well-reasoned
order affirming the bankruptcy court’s order but held that both the settlement
agreement and the underlying contract were executory. The Matlacks then
perfected this appeal.
We review factual findings under a clearly erroneous standard and
conclusions of law de novo. In Re: Bilzerian, 153 F.3d 1278, 1281 (11th Cir.
1998).
After reviewing the record and reading the parties’ briefs, we agree with the
district court’s finding that both the settlement agreement and the terms of the
contract were executory. We also reject the Matlack’s contention that the
_____________________
*Honorable R. David Proctor, Judge, United States District Court for the Northern
District of Alabama, sitting by designation.
2
bankruptcy court rendered an “advisory opinion” or otherwise deprived the
Matlacks of due process. Likewise, we reject the Matlack’s claim for judicial
estoppel as they have failed to demonstrate the existence of any perversion of
justice.
Finally, we agree with the district court’s finding that the Matlacks waived
their “bad faith” argument since they failed to present that argument to the
bankruptcy court.
For the above-stated reasons, we affirm the district court’s judgment
affirming the bankruptcy court’s order.
AFFIRMED.
3
| {
"pile_set_name": "FreeLaw"
} |
57 F.Supp. 466 (1944)
THE MARGARET LYKES.
THE ULUA.
No. 503.
District Court, E. D. Louisiana, New Orleans Division.
July 31, 1944.
Findings of Fact, etc., August 10, 1944.
*467 Deutsch, Kerrigan & Stiles, of New Orleans, La., for plaintiff.
Terriberry, Young, Rault and Carroll, of New Orleans, La., for defendant.
Phelps, Dunbar, Marks & Claverie, of New Orleans, La., for United Fruit Co.
CAILLOUET, District Judge.
Libelant Texas Petroleum Corporation brought this suit against the vessels SS Ulua and S.S. Margaret Lykes and their respective owners, United Fruit Company and Lykes Bros. Steamship Company, Inc., alleging that its certain described truck that it sought to ship via said vessels from New Orleans, La., to Barranquilla, Colombia, was damaged in transit with the proximate result that, by reason of the injury and necessary expenses occasioned thereby, libelant sustained damages to the aggregate amount of $1,500, for which it seeks indemnification.
A stipulation entered into by the parties makes it appear that on or about March 21, 1940, libelant, through its agents, delivered, in good order and condition, to the S.S. Ulua and United Fruit Company, its owner, on the Port of New Orleans docks, one shipment of goods comprising nine boxes of seismographic equipment and a "1940 Norman Herrington 1½ ton Ford 4-wheel drive conversion Kelly-type seismograph shot hole drill truck," transfer of custody having been effected by the medium of two deliveries, for each of which a dock receipt was thereupon issued in due courseone covering the truck and one box of parts loaded thereon, and the other covering the remaining eight boxes of parts. The first mentioned dock receipt specifically called for "on deck" stowage of the truck and accompanying one box of parts, but no mention of this appeared in the subsequently issued bill of lading, covering the entire shipment of nine boxes and one truck. This bill of lading was never negotiated by the libelant, which was sole owner of all interest therein, and it is *468 agreed that all of its terms and conditions are made part of the stipulation.
In its originally prepared form the bill of lading specifically provided, in part, as follows:
"21. Unless a higher value be stated herein, the value of the Goods does not exceed $100.00 per package, and the freight thereon has been adjusted on such valuation, and no oral declaration or agreement shall be evidence of a different valuation. In computing any liability of the Carrier in respect of the Goods, no value shall be placed thereon higher than the invoice cost (including freight prepaid hereunder) not exceeding $100.00 per package (or such other value as may be stated herein), nor shall the Carrier be held liable for any damages for delay exceeding twenty per cent. of said cost not exceeding said value nor for any profits or increase of price or value over such cost not exceeding said value, nor for any special or consequential damage and the Carrier shall always have the option of replacing any lost or damaged Goods."
Imprinted on the face of said bill of lading there appeared, however these controlling additional provisions, to-wit:
"This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its right or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this bill of lading is repugnant to said Act to any extent, such term shall be void to that extent, but no further."
Furthermore, under Section 4, subsection 5, of said Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315, it is provided as follows, viz.:
"Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. * * *"
The freight charges agreed to and thereafter actually paid by the libelant were based on the regular rate called for by the United Fruit Company's tariffs, duly filed and approved, and were not calculated at such rate as would have been charged by the carrier if libelant had declared a valuation in excess of $500 per package, which it did not.
In due course the S.S. Ulua carried the whole of said shipment (all under deck except the truck) from New Orleans to Cristobal, Canal Zone, to then and there deliver the same for transshipment and carriage from Cristobal to Barranquilla, Colombia, via the S.S. Margaret Lykes of Lykes Bros. Steamship Company, Inc., as stipulated for in the bill of lading.
Delivery, in good order and condition, of all goods comprising the shipment took place at Cristobal and the nine boxes of parts were thereupon transshipped and carried therefrom, in and by the S.S. Margaret Lykes, to Barranquilla, where delivery of said nine boxes was duly effected in like good order and condition; and libelant's claim of damages, therefore, refers to none of said nine boxes of parts.
However, whilst the Lykes Bros. Steamship Company, Inc., was attempting to load libelant's truck (which was then in said company's exclusive care and custody) onto the S.S. Margaret Lykes at Cristobal, for transshipment and carriage to Barranquilla, substantial damage was done to said truck, which was thereupon transshipped to its final destination, at a later date, in the S.S. Velma Lqkes; and delivery was effected by said carrier at Barranquilla, with the truck in no different damaged condition than it was when it was loaded for carriage, at Cristobal.
It is stipulated, particularly, that the damage sustained by the truck in no wise resulted from its having been stowed on deck and that no liability arose from the fact that it was the S.S. Velma Lykes, rather than the S.S. Margaret Lykes named in the bill of lading, that carried the damaged truck from Cristobal to Barranquilla.
Lykes Bros. Steamship Company, Inc., while admitting responsibility and its liability in damages for the aforerecited physical damaging of the libelant's truck, nevertheless insists that libelant should be indemnified in no greater principal sum than $500, although it is stipulated that $1500 does represent the physical damage sustained *469 by the truck and all expenses connected with or relating thereto.
In relation to the amount of damages actually due, it is stipulated by the parties that the question of interest and costs shall be determined as if either or both of the shipping companies and/or the proctors of either or both of the S.S. Margaret Lykes and the S.S. Ulua did, as of the date of such stipulation, i. e., January 31, 1944, formally tender to the libelant the sum of $500, "plus interest, if any, and all costs," and such tender was formally declined by libelant.
Libelant first contends that the carrying of the damaged truck on deck after issuance of a clean bill of lading constituted "deviation," which displaced the bill of lading contract and made each vessel liable as insurer; and that, consequently, the formerly existing limitation of liability to $500 per "package" or "customary freight unit" has been abrogated.
The dock receipt covering the subsequently damaged truck specifically called for on-deck stowage and furthermore expressly stipulated as follows, viz.: "The United Fruit Company's regular bill of lading in use by it for similar shipments (upon the basis of which freight rates are fixed) shall be issued for said goods to the above named shippers * * *. If the value of any of the goods exceeds $500.00 per package, a rate of freight, based thereon must be arranged before tender of the goods for shipment and the value of the goods be declared on delivery at the dock and inserted herein, failing which, the goods shall be conclusively deemed received subject to the bill of lading limitation of value and liability to the invoice cost not exceeding $500.00 per package."
It is true that, in attempted compliance with the dock receipt requirement that there should duly issue to libelant the carrier's regular bill of lading for similar shipments such as the tendered one, which involved the stipulated stowage on deck of libelant's truck, a clean bill of lading covering nine boxes of parts and the one truck was actually issued. The bill's failure to specify that the truck was to be carried on deck, as had been so previously stipulated for in the dock receipt, made libelant immediately cognizant of the fact that it was erroneous to that extent,not that the carrier had breached its contract of carriage because of the truck's stowage on deck, rather than under with the nine boxes of parts.
Undoubtedly, it is well settled that, ordinarily, the stowage of cargo on deck, when accepted for shipment under a clean bill of lading, operates a technical deviation and renders the vessel liable "as for a deviation," if the cargo at issue sustains loss or damage by reason of its having been so stowed on, rather than under, the deck. But such is not the case when the shipper holding a clean bill of lading nevertheless consents to and approves of the stowage on deck. The Delaware, 1872, 14 Wall. 579, 605, 81 U.S. 579, 605, 20 L.Ed. 779, 784.
In the case of The Southlands, D.C., 1928, 27 F.2d 1010, decided by then District Judge Joseph C. Hutcheson, Jr., and, on appeal to the Circuit Court of Appeals, Fifth Circuit, 1930, 37 F.2d 474, the stowage on deck, despite issuance of a clean bill of lading, was, admittedly, without the knowledge of the shipper. A similar situation obtained in the case of St. Johns N. F. Shipping Corporation v. S. A. Companhia Geral Commercial do Rio de Janeiro, 1923, 263 U.S. 119, 44 S.Ct. 30, 68 L. Ed. 201, which, like the aforementioned cases of The Delaware and The Southlands, are cited by libelant in attempted support of its contention that the stowage on deck of its truck, in the face of the clean bill of lading, forecloses any further discussion as to the true state of affairs relating to the transportation of libelant's property from New Orleans to Barranquilla, and it contends that the contract of carriage was, perforce, displaced by the alleged improper on-deck stowage of the truck by the carrier, which should, as a necessary consequence, be held liable in damages as insurer and not under the liability limitation written into the bill of lading.
But, under such circumstances as attended the issuance of the clean bill of lading here in question, it is competent for the shipowner, as against the shipper, to show that it was agreed that a portion of the cargo accepted for shipment was to be carried on deck, even though the bill of lading erroneously fails to note the exception. See Two Hundred and Sixty Hogsheads of Molasses, D.C.Me., 1866, 24 Fed. Cas.No.14,296, page 445.
It is needless to observe that in this present case, there is no question of inadmissibility *470 of parol evidence to "vary" the terms of the written contract of carriage.
If it be conceded, for the present purpose, that there was an actual breach of the contract of carriage "as by deviation," then libelant had the option of choosing either one of the two courses of action open to it. On its becoming aware of the breach, libelant could have treated such breach as an outright repudiation of the contract of carriage, bringing it to a definite end. But it did not elect to do so. On the contrary, it chose the alternative course, which was to waive the "deviation" as final repudiation of the contract by the carrier, treat such contract as still fully subsisting, and have its property transported from New Orleans to Barranquilla, while reserving whatever legal right to damages it might subsequently be able to successfully urge, if loss or injury came to it by reason of carrying the truck on deck, rather than under; which safer stowage, the clean bill of lading, under ordinary circumstances, would import that the contracting parties intended to be used. Scrutton, Charterparties and Bills of Lading, 14th Ed.1939, Art. 99, p. 309 et seq.; Carver, Carriage of Goods by Sea, 8th Ed.1938, Sec. 16, p. 21; St. Johns N. F. Shipping Corporation v. S. A. Companhia Geral Commercial do Rio de Janeiro, 1923, 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201; The Tregenna, 2 Cir., 1941, 121 F.2d 940, 944.
Here, no loss or injury resulted from the carrying on deck, and any reserved right to claim damages on such a ground, as may have come into being when libelant elected to treat the contract of carriage as not repudiated but as subsisting, lapsed into nothingness when the truck's on-deck voyage terminated without ill effect.
Libelant having so elected to treat the contract of carriage as not repudiated, in order that it might avail itself of its terms calling for the transportation of its property from New Orleans to Barranquilla, the carrier had the right to insist upon the shipper's full compliance with its obligations as such, and to rely, itself, on any exception clause and limitation of liability clause in the contract, applicable to any casualty occurring after the act of the carrier (if the on-deck stowage of the truck did amount to a deviation despite the aforecited attendant circumstances), including damages proximately resulting from said act, or any other act of commission or omission making the carrier responsible to the shipper for indemnification.
Over and above the foregoing considerations, it is also well to remember that, admittedly, the injury done to the truck resulted, in no wise, from its having been carried on deck. The damage sustained would have occurred even though there had been no such alleged "deviation." Under such a state of facts no responsibility attaches to the carrier "as for a deviation." Scrutton; Carver; and Poor, supra; The Delaware, supra, 81 U.S. at page 598, 20 L.Ed. at page 782; The Hermosa, 9 Cir., 1932, 57 F.2d 20, 27; The San Giuseppe, 4 Cir., 1941, 122 F.2d 579, 586.
Libelant secondly contends that, even though it be so decided that there has occurred no deprivation of the right to plead the limitation of value clause in the bill of lading and the limitation of value provisions in the Carriage of Goods by Sea Act, nevertheless neither clause nor provisions are applicable, because it was an unboxed motor truck that was carried and damaged.
But this contention is no more sound than the first.
In enacting the Bills of Lading Act of 1916, 49 U.S.C.A. §§ 81-124, Congress legislated on the subject of the transportation of goods, as for instance, from New Orleans, Louisiana, to Barranquilla, Colombia, whether as package freight, or bulk freight, or "freight not concealed by packages." § 100.
There does not seem to be any good reason to doubt what Congress intended when it subsequently enacted the Carriage of Goods by Sea Act, in 1936, and provided that neither carrier nor ship "shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package * * *, or in case of goods not shipped in packages, per customary freight unit, * * * unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. * * *"
Clearly, Congress again had in mind package freight, and bulk freight, and "freight not concealed by packages," and the expression "per customary freight unit," referring to all freight but package freight, undoubtedly relates to the usual measure of all "unpackaged" goods transported, *471 whether measured by count or by weight, etc.
An examination of the United Fruit Company's dock receipt which it issued to libelant, as aforesaid, shows that it acknowledges receipt of "the following number of articles and packages" for transportation on the S.S. Ulua; following which, in columnar subdivisions appears detailed description of said articles and packages.
There are nine such subdivisions and, reading from left to right, there appear the following column headings, viz.: "Marks," "Numbers," "No. of Packages," "Kind of Packages," "Shipper's Declaration of Contents," "Shipper's value," "Shipper's measurement," "Shipper's weight," and "This Space not to be used by Shipper."
Across columns 1 and 2 is written the word "Seismograph"; in column 3, the figure "1"; across columns 4 and 5, the words "Seismograph Drill mounted on Truck"; in columns 6 and 7, nothing; and in column 8 "Shipper's weight," the figure 9555.
Underneath, in columns 3, 4 and 5, and 8, there appears "1 Bx. Parts", 173 pounds.
A third and lower section of the dock receipt contains other subdivisions, one of which is headed: "No. of Packages," and thereunder and therein appears the written word: "Two"; clearly meaning that this was the number of "packages" covered by the dock receiptthe truck, one, the box of parts, the other.
On the selfsame day and as called for by the terms of the dock receipt, the bill of lading was issued. An examination of said bill reveals the fact that under the heading "Description of Goods" appears a columnar subdivision containing nine sections, the third, fourth and sixth of which are headed "Quantities," "Shipper's description of Class and Contents of Packages," and "Shipper's Weight," respectively.
Immediately under the listing of 9Bxs. Seismograph Equipment2613 pounds, there appears the description and weight of the truck, in said three mentioned columns, as follows, to-wit:
"1 ____ 1940 * * * Seismograph Shot Hole Drill Truck ____ 9555 pounds."
The truck's description and weight was evidently so entered only after declaration thereof by libelant. In this connection, it may be observed, furthermore, that the bill of lading specifically required that in case of "a single article or package exceeding two tons in weight, the true weight thereof shall be declared at time of delivery to carrier."
So far as affects the question of limitation of value, the parties in interest have, in effect, stipulated that the truck is to be considered a "package," equally with the one box of parts listed on the dock receipt, and with each one of the nine of such boxes listed on the bill of lading (which was issued in attempted compliance with dock receipt requirement) and all of which were stowed under deck, whilst the truck (as always intended by the parties) was carried on deck.
It is immaterial whether or not the uncrated truck was such an article as came within the commonplace definition of "package," inasmuch as the parties contractant elected to so denominate it. No recovery in excess of $500 can be had of ship or carrier with reference to said damaged article, or freight "not concealed by packages," and yet referred to by the parties as a "package." R. H. Eyles v. United Fruit Company, D.C.So.Dist.N.Y., 1942.
But whether this be so or not, the truck was certainly a "freight unit" such as Congress had in mind when it legislated as to transportation of package freight, bulk freight and "freight not concealed by packages," and provided that, unless a greater value were declared by the shipper before shipment and inserted in the bill of lading, neither carrier nor ship may be held liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package or in case of goods not shipped in packages, per customary freight unit.
Because of the foregoing considerations, the Court is of the view that libelant should recover from respondent Lykes Bros. Steamship Company, Inc., as sole party responsible for the damage done to libelant's truck, no more than the tendered principal sum of Five Hundred ($500) Dollars, bearing legal interest from judicial demand up to and inclusive of the stipulated date of tender, i. e., January 31, 1944, as well as all costs accrued up to the time of the tender, but no further.
Due compliance with the requirements of Admiralty Rule 12 of the Court should now follow; and concurrently with the subsequent filing of the Court's formal findings of fact and conclusions of law, the appropriate decree, in consonance therewith *472 and with this opinion, shall then be entered in due course.
Findings of Fact and Conclusions of Law
This cause having been heard heretofore, and the Court, by its written opinion filed on July 31, 1944, having announced its decision, does now make and file the following as its formal findings of fact and conclusions of law, viz.:
Findings of Fact
1. On and about March 21, 1940, and continuously thereafter until at least the final delivery of the entire shipment of goods hereinafter referred to, the steamships Ulua and Margaret Lykes, of the United Fruit Company and Lykes Bros. Steamship Company, Inc., respectively, in the order named, were general ships engaged in common carriage of freight by water, for hire.
2. On or about said March 21, 1940, a shipment of goods was delivered, in good order and condition, by libelant Texas Petroleum Corporation, as shipper, to the United Fruit Company, at the Port of New Orleans, for transportation in its said S. S. Ulua to Cristobal, Canal Zone, and transshipment therefrom, in the S. S. Margaret Lykes, to Barranquilla, Colombia, to be there delivered to said Texas Petroleum Corporation.
3. Such carriage of goods by sea was to be, and was actually, effected in consideration of certain freight charges agreed to be paid, and thereafter paid.
4. Such freight charges were computed at the regular rate prescribed by the United Fruit Company's duly filed and approved tariffs, and were not at such a rate as would have been charged had there been declared by the shipper aforesaid a valuation in excess of $500 per package, when, under such circumstances, higher freight charges would have been assessed in accordance with said tariffs. The libelant at no time declared a valuation in excess of $500 per package, with respect to any item comprised in and composing the aforementioned shipment.
5. Such shipment was so entrusted to, and received by, said United Fruit Company as the result of two deliveries made unto it, the one comprising 8 boxes of seismograph equipment parts, and the other, a seismograph shot hole drill truck, with one other box of such parts loaded thereon.
6. The United Fruit Company's regularly issued dock receipt, covering the second mentioned delivery, specifically called for on-deck carriage and provided for the issuance of the company's regular bill of lading in use for similar shipments.
7. When and as issued said bill of lading covered the whole shipment, comprised of the 9 boxes of seismograph equipment parts and the truck, but no mention was made that, as agreed to between shipper and carrier, the truck was to be stowed and carried on deck. Said bill was never negotiated and remained at all times in the hands of libelant, which did ever continue to be sole owner of any interest therein.
8. The aforementioned shipment was thereupon carried, on direct and customary route, by the S. S. Ulua to Cristobal, where it was delivered, in the same good order and condition as originally received from libelant at New Orleans, to Lykes Bros. Steamship Company, Inc., for carriage by its S. S. Margaret Lykes to Barranquilla.
9. The 9 boxes of seismograph equipment parts were thereupon taken aboard said S. S. Margaret Lykes and, in the same good order and condition as received, were carried and subsequently delivered to Texas Petroleum Corporation at Barranquilla, Colombia, the shipment's final destination.
10. In attempting to also load the truck onto the S. S. Margaret Lykes at Cristobal, Canal Zone, for similar transshipment to Barranquilla, said truck, then and there still being in like good order and condition as received, was damaged and Lykes Bros. Steamship Company, Inc., accepts full responsibility therefor and admits liability in damages but only within, and not beyond, the statutory and contractual limitation of liability to no more than $500 per package, or customary freight unit.
11. The so-damaged truck was thereafter transshipped and carried from Cristobal to Barranquilla, not by the S. S. Margaret Lykes as had been originally intended by both shipper and carrier, but by another ship of the Lykes Bros. Steamship Company, Inc., i. e. the S. S. Velma Lykes, and was there delivered in condition no more damaged than it stood when it was loaded onto said substitute vessel. The parties have stipulated that no liability attaches from such carriage on steamship other than the one named in the bill of lading.
12. The physical damage sustained by the truck before its final loading onto the *473 S. S. Velma Lykes, and all expenses incurred with respect thereto, amounted to $1,500.
13. Whether or not the S. S. Ulua had carried said truck from New Orleans to Cristobal, Canal Zone, under deck, rather than on deck as was actually done, said truck would have sustained the selfsame damage occasioned it by its attempted loading onto the S. S. Margaret Lykes, at Cristobal, for contracted transshipment to Barranquilla, Colombia.
14. By the terms of the parties' stipulation, it must be considered that formal tender of $500, plus interest, if any, and all costs, was made to libelant as of January 31, 1944, in full settlement of the maximum damages admitted to be due by Lykes Bros. Steamship Company, Inc., for the acknowledged injury done by it to libelant's truck when attempting to so load the same upon the S. S. Margaret Lykes.
Conclusions of Law
1. The failure of the bill of lading to specify that the truck was to be carried on deck, as had been previously stipulated for in the dock receipt, made libelant immediately cognizant of the fact that such bill was erroneous to that extent, and not that the carrier had breached its contract of carriage because of the truck's stowage on deck, rather than under deck with the boxes of parts.
2. Ordinarily the stowage of cargo on deck under a clean bill of lading operates as a technical deviation and renders the vessel liable "as for a deviation," if the cargo sustains loss or damage by reason of its having been so stowed on, rather than under, deck. This, however, is not so when the shipper holding a clean bill of lading, nevertheless approves and consents to stowage on deck. Under such circumstances as attended the issuance of the clean bill of lading in this case, it is competent for the shipowner, as against the shipper, to show that it was agreed that a specific part of the cargo accepted for shipment was to be carried on deck, even though the bill of lading erroneously fails to note the exception; and the Court holds that under the attendant circumstances here present, there was no "deviation."
3. Even though an actual deviation occurred, libelant then had the option of choosing either to treat such breach as an outright repudiation of the contract of carriage, or to treat the contract of carriage as still in force, reserving whatever legal right to damages it might subsequently be able to successfully urge for any loss or injury coming to it by reason of the on-deck stowage. But libelant having elected to treat such contract of carriage as not repudiated, in order to avail itself thereof to obtain transportation of its property from New Orleans to Barranquilla, the carrier had the right to insist upon the shipper's full compliance with its obligations as shipper and to rely, itself, on any exception clause and limitation of liability clause in the contract.
4. The injury done to the truck resulted in no wise from its having been carried on deck. The damage sustained would have occurred even though there had been no on-deck carriage by the Steamship Ulua. Under such a state of facts, no responsibility attached to the carrier "as for a deviation."
5. By the respective terms of both dock receipt and bill of lading the parties have, in effect, stipulated that the truck, as to shipper and carrier, was, and must be, considered a "package," equally with the one box of parts, listed with such truck on the dock receipt, and with each one of the nine of such boxes, listed with the truck on the bill of lading. It is immaterial whether or not the uncrated truck was such an article as came within the commonplace definition of "package," inasmuch as the parties contractant elected to so denominate it. But whether this be so or not, the truck was certainly a "freight unit." Therefore the $500 limitation per package or customary freight unit provided by the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315, at § 1304(5), is applicable to this case and controls the amount of damage recoverable.
6. In view of all of the foregoing, the Steamship Ulua and United Fruit Company are not responsible to libelant in any sum whatsoever, and Lykes Bros. Steamship Co., Inc., and its S. S. Margaret Lykes, as sole party responsible for the damage, are liable for no more than the tendered principal sum of $500, bearing legal interest from judicial demand up to and including January 31, 1944 as well as all costs accrued up to that time, but no further.
| {
"pile_set_name": "FreeLaw"
} |
568 F.2d 769
Kondrichv.Califano
No. 77-1430
United States Court of Appeals, Third Circuit
1/16/78
1
W.D.Pa.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
163 Ga. App. 828 (1982)
296 S.E.2d 123
THOMPSON
v.
THE STATE.
64361.
Court of Appeals of Georgia.
Decided October 12, 1982.
P. C. King, Jr., for appellant.
Charles M. Ferguson, District Attorney, David H. Moseley, Assistant District Attorney, for appellee.
SHULMAN, Presiding Judge.
This appeal is from appellant's conviction for forgery in the first degree.
1. In enumerations of error 7, 8, and 9, appellant assails the sufficiency of the evidence. Testimony and documentary evidence produced at trial established that appellant, using the name of another person, procured a loan from a loan company and kept the proceeds. That evidence was sufficient to authorize a reasonable trier of facts to find appellant guilty beyond a reasonable doubt of the offense of forgery in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baldwin v. State, 153 Ga. App. 35 (264 SE2d 528).
2. Appellant's first five enumerations of error all involve the date on which appellant was alleged to have committed forgery. According to appellant, the fact that the indictment alleged that the offense was committed on one date and the evidence showed that it was committed several days later was a fatal variance between the allegata and the probata which demanded an acquittal and which rendered the evidence showing the later date inadmissible. We disagree.
"`Unless time is an essential element of the offense charged, the time of the commission of the offense alleged in the indictment is immaterial. To sustain a conviction, there must be proof to establish that the offense occurred prior to the return of the indictment and within the statute of limitation. [Cit.]'" Rosser v. State, 157 Ga. App. 161, 163 (276 SE2d 672). Time is not an essential element of the offense of forgery in the first degree (Code Ann. § 26-1701) and the proof met the other requirements set out above. It follows that there was no fatal variance between the allegata and the probata and no *829 error in the admission of the evidence showing a different date for the commission of the offense.
3. Appellant objected at trial to the testimony of a state's witness whose name did not appear on the list furnished to appellant by the district attorney pursuant to a demand for such a list under Code Ann. § 27-1403. Since that witness' name appeared on the indictment, appellant's enumeration of error complaining of the overruling of his objection and the admission of that witness' testimony is without merit. Hibbs v. State, 133 Ga. App. 407 (2) (211 SE2d 24).
4. Appellant was indicted as "Floyd Thompson." After the jury found appellant guilty, the trial court entered a sentence in which appellant was identified as "Willie Floyd Thompson." Appellant enumerates that variance as error. Neither appellant nor this court has found any case directly on point to this issue. In view of the fact that the alleged error is so inconsequential, one may understand why it has never before been necessary to address this question. Appellant has alleged no harm to flow from this obviously clerical error, and we can imagine none. No corrective action is necessary.
Judgment affirmed. Quillian, C. J., and Carley, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
385 P.2d 121 (1963)
H. Gordon HOWARD, Plaintiff in Error,
v.
Melvin C. LESTER and Esther M. Lester, Defendants in Error.
No. 20607.
Supreme Court of Colorado, En Banc.
September 16, 1963.
Nolan L. Brown, Lakewood, for plaintiff in error.
No appearance for defendants in error.
MOORE, Justice.
We will refer to plaintiff in error as defendant or by name, and to defendants in error as the Lesters.
The complaint filed by the Lesters set forth two claims. In the first it was alleged that the defendant, as the agent and employee of Pre-News, Inc., obtained $500.00 from them by making "certain false representations of present, existing facts" during negotiations between them relating to the purchase by the latter of a business known as the Wazee Lounge and Supper Club. Defendant had an exclusive broker's listing from the owners and was authorized to find a purchaser who was ready and able to buy the business on the terms dictated by the owners. He denied that any false representations were made; admitted that the Lesters paid to him the sum of $500.00, "* * * as earnest money deposit on the purchase of the Wazee Lounge"; denied that Lesters had suffered any damage; and alleged that the $500.00 "earnest money deposit has been forfeited."
The case was tried to the court. At the close of the evidence offered by the Lesters, counsel for defendant moved to dismiss the action for the reason that the evidence had failed to establish a prima facie case. This motion was denied.
*122 The record that has been certified to this court for review includes a reporter's transcript of the evidence which was offered on behalf of the Lesters. It also contains the motion to dismiss, together with the court's ruling thereon. At this point in the transcript we find the following:
"AND THEREAFTER, the defendant Howard, to sustain the allegations in his behalf, offered and gave into evidence the testimony of H. Gordon Howard and one Florence Rapp;
"AND, THEREAFTER, the following proceedings were had: (Here follows the findings and judgment of the court.)"
The findings and judgment of the court included the following:
"In view of the fact this Court is definitely of the opinion that there was fraud perpetrated against these plaintiffs herein, judgment is entered in favor of these plaintiffs and against this defendant in the full amount of the $500, as given by these plaintiffs to this defendant; and punitive damages in the amount of $1500, payable to these plaintiffs, and against this defendant. In other words, in all, a judgment in the amount of $2,000 is entered in favor of these plaintiffs and against this defendant."
Asserted grounds for reversal of the judgment are presented under three captions, the second and third of which attempt to bring into the case for the first time an issue involving an election of remedies. The arguments advanced in this connection have no support in the record, were not presented to the trial court, and we consider them no further. The only argument warranting comment is captioned as follows:
"There were no facts before the court below upon which it could base a finding of fraud and the court below erred in over-ruling plaintiff in error's motion to dismiss for failure to state a claim upon which relief could be granted."
The certificate of the court reporter which is attached to the transcript certifies that the "above and foregoing pages * * * constitute a full, true and complete transcript of the * * * evidence offered upon the trial thereof, ON BEHALF OF THE PLAINTIFFS ONLY, * * *," and to like effect is the certificate of the trial judge.
The judgment entered by the trial court is presumed to have been entered after due consideration of all the evidence admitted upon the trial. It will be presumed that a judgment is supported by the evidence until the contrary is made to appear. In the instant case it affirmatively appears that the complete direct and cross-examination of two witnesses is omitted from the reporter's transcript; that all of the evidence which formed the basis of the trial court's judgment is not before us. We are accordingly precluded from passing upon the claimed insufficiency of the evidence to sustain the judgment. Young v. Hatch, 30 Colo. 422, 70 P. 693. Unless all the testimony heard in the trial court is presented in the reporter's transcript it cannot successfully be urged that the judgment is not supported by the evidence; it being presumed that the evidence before the court fully supports the findings and judgment. Price v. Immel, 48 Colo. 163, 109 P. 941; Lindhorst v. Purkey, 76 Colo. 483, 232 P. 1116; Radovich v. Radovich, 84 Colo. 250, 269 P. 22; Fisher v. Pioneer Construction Co., 62 Colo. 538, 163 P. 851; Meese v. Hudson, 77 Colo. 165, 235 P. 565; Meagher v. Neal, 130 Colo. 7, 272 P.2d 992.
The judgment is affirmed.
FRANTZ, C. J., and HALL, J., not participating.
| {
"pile_set_name": "FreeLaw"
} |
498 F.2d 163
Werner C. VON CLEMM et al., Plaintiffs, Appellants,v.Roman Acosta BANUELOS et al., Defendants, Appellees.
No. 74-1036.
United States Court of Appeals, First Circuit.
Heard April 3, 1974.Decided June 3, 1974.
Charles B. Swartwood, III, Worcester, Mass., with whom Mountain, Dearborn & Whiting, Worcester, Mass., was on brief, for plaintiffs, appellants.
Bruno A. Ristau, Atty., Dept. of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., James N. Gabriel, U.S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on brief, for defendants,
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
1
COFFIN, Chief Judge,
2
Appellant began his long and arduous relationship with the Alien Property Custodian and the federal judicial system in the year 1941.1 Since that time his case has been scrutinized by judges and administrators at epic length. It falls to us to decide whether he has received the consideration which is his due or whether another round of judicial examination is called for. We hold that review of the administrative decision under Section 32 of the Trading with the Enemy Act (the Act), 50 U.S.C.App. 1 et seq. is foreclosed to the appellant; the district court properly dismissed the complaint.
3
Through all these years appellant's objective has been to recoup the value of seized items which included six packages of diamonds and two hundred seventy packages of synthetic and semi-precious stones, sold by the Alien Property Custodian, sometime subsequent to their vesting in 1945, for well over one million dollars.2
4
The history of appellant's business transactions is complex. It is set forth in Von Clemm v. Smith, 255 F.Supp. 353 (1965). For our purposes it is sufficient to note that, in 1938, appellant, an American citizen born in Germany, undertook to import jewels and other items from Europe under the corporate name Pioneer. He made partial payment in blocked marks which could be obtained at a discount. This commercial enterprise was potentially limited by the Presidential freezing orders of April and May 1940. Executive Order 8389 regulated trade with countries which had been overrun by German armed forces including Denmark, Norway and the Low Countries. Appellant's trade in Belgian and Dutch diamonds was threatened, but, without obtaining the requisite treasury licenses, he arranged a complicated subterfuge for importing the diamonds through Germany. There was persuasive evidence that these transactions, prior to the outbreak of war, involved close contact with and approval by the German government, and indeed that they were for the benefit of that government. See 255 F.Supp. at 362-363. One of the diamond shipments, arranged through intermediaries, cleared customs. This transaction led to appellant's prosecution and conviction for conspiracy to import under a false declaration that the diamonds were of German origin, in violation of the freezing orders and therefore of the Act, and of 12 U.S.C. 95, affirmed in United States v. Von Clemm, 136 F.2d 968 (2d Cir.), cert. denied, 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459 (1943). Other shipments similarly arranged were seized by customs and are the crux of this suit.
5
Upon the finding by the Custodian that the property was owned beneficially or directly be enemy nationals, the property was seized and vested as authorized by the Trading with the Enemy Act, 50 U.S.C.App. 5. The Act itself established the means to appeal such a determination. The routes provided for appeal are alternative routes. One or the other (but not both) is available to each claimant.3 Section 9(a) of the Act provides that anyone not an 'enemy' as defined therein may seek administrative return of the property and sue in equity in a federal district court. Section 32(a) indicates that for those ineligible for Section 9(a) relief there is exclusive administrative recourse.4
6
In 1959, after a denial of return of proceeds by a hearing examiner for the Office of Alien Property, appellant filed suit for return of the property under Section 9(a).5 The statutory scheme implicitly requires that the court determine de novo controverted issues. The liminal issue, upon which appellant's right to 9(a) relief depended was whether or not he was an 'enemy' or an 'ally of an enemy' under the Act.6 The district court held a six week trial, directed, in part, toward resolution of this dispute. Appellant was affirmatively shown to have been an agent of the German government until the outbreak of hostilities. The court concluded that in light of his prior conduct, and, in its view, appellant's failure to show that he had discontinued his relationship with the German government after the outbreak of war, he had failed to prove that he was not an agent of an enemy for purposes of the Act.7 Under 9(a) recourse to judicial remedy is limited to those not 'enemies' or 'allies of an enemy'. The court, therefore, dismissed the action for want of jurisdiction. Von Clemm v. Smith, 255 F.Supp. 353 (S.D.N.Y.1965), aff'd, 363 F.2d 19 (2d Cir. 1966), cert. denied, 385 U.S. 975, 87 S.Ct. 502, 17 L.Ed.2d 438 (1966).
7
Appellant then pursued the route left open to those not qualified for 9(a) relief. He pursued administrative appeals until March 22, 1971 when the Attorney General issued an order disallowing the claim as 'not in the interest of the United States'. Within the meaning of 32(a)(5) of the Act, this last avenue led appellant to this court where he seeks to appeal the administrator's determination. The district court dismissed the complaint for want of subject matter jurisdiction. The court reasoned that Section 7(c) of the Act8 limits judicial review to claims filed pursuant to Section 9(a). Since, by judicial decision, appellant was eligible only for 32(a) relief, he had no basis for seeking judicial review of the exclusive administrative determination. The finality and exclusivity of administrative relief provided by Section 32(a) has been confirmed in Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960), which held this limitation on judicial review to be constitutional.9
8
Appellant argues that Schilling dealt only with the rights of enemy nationals, not entitled to Fifth Amendment protections. As a citizen, appellant claims that his right to an adjudication of his property rights cannot be diminished by imposing on him the burden of proving that he was not an 'ally of an enemy' under 9(a), or denied entirely through unreviewable administrative action, under 32(a). Having been subjected to the 'impermissible burden' in his earlier 9(a) court suit, he claims that a judicial forum for consideration of his constitutional claim must lie in review of the 32(a) determination.
9
Past Court pronouncements may perhaps be read as giving a constitutional bill of health to 9(a) by approving the availability to a nonenemy claimant of a later judicial hearing on the propriety of a seizure. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 211, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Stoehr v. Wallace, 255 U.S. 239, 245-246, 41 S.Ct. 293, 65 L.Ed. 604 (1921). But in none of such cases were the status of the claimant and the claimant's burden to establish his nonenemy status in issue.
10
Assuming, without conceding, that appellant's claim is not foreclosed by prior cases, we examine it. Since Congress has demonstrated its intent to foreclose judicial review of the administrative decision under 32(a), a holding that such review is constitutionally required would have to be predicated on a finding that the present statutory scheme is fatally defective. Appellant claims that the taking of his property must be accompanied by the highest due process safeguard, judicial process. The most extensive judicial scrutiny includes determination of 'jurisdictional' or 'constitutional facts'.10 Here the essential fact is whether appellant was an 'enemy' or 'ally of an enemy' under the Act. Section 9(a) provides not only for judicial determination of this fact but a de novo judicial hearing. Appellant had the explicit opportunity to establish his status. He had the implicit opportunity to challenge the constitutionality of the burden of proof. The fact that judicial relief was made available before rather than after administrative jurisdiction was assumed is not determinative. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). 'There isn't often a constitutional right to a second bite at the apple.' The Power of Congress to Limit the Jurisdiction of the Federal Courts, 66 Harv.L.Rev. at 1369. The scheme itself provides all the requisite constitutional safeguards. That opportunity was not earlier seized to obtain a judicial ruling on appellant's constitutional assault on the proper burden of proof under 9(a) does not provide any basis for avoiding the ruling in Schilling that 32(a) relief is exclusively administrative and judicial review is foreclosed. The court below therefore properly ruled that it was without subject matter jurisdiction to review the claim.
11
We too are without jurisdiction to determine whether the district court in the Section 9(a) suit improperly required Von Clemm to bear an affirmative burden of proof.11 We note, however, that even if we had jurisdiction to consider its legal merits, appellant's claim, since it could have been presented to the second circuit on appeal from Von Clemm v. Smith, supra, would be barred by res judicata. The Court's statement a century ago is valid today:
12
'Judgment, rendered upon the merits, constitutes an absolute bar to subsequent action. It is a finality . . . concluding parties . . . not only as to every matter which was offered and received to sustain or defeat the claim . . . but as to any other admissible matter which might have been offered . . . Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.' Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1876).
13
The policies underlying the doctrine are well illustrated by this case. At some point litigation must terminate.
14
The order of the District Court is affirmed.
1
Von Clemm and Alley, as trustee for Von Clemm's children formed a partnership in 1941, Bridge Imports. Von Clemm was the 75% General partner and Alley was, as trustee, a 25% Special partner. Bridge was a partial owner of Pioneer. The appeal brief has not differentiated their interests. We note, however, that Alley sued the Attorney General in federal court under 9(a) seeking return of the property in his capacity of limited partner in Bridge. The relationship between Bridge and Pioneer is fully explained in Von Clemm v. Smith, 255 F.Supp. 353, 361 (S.D.N.Y.1965). The court dismissed the action on the grounds that under New York law a limited partner has no property rights in partnership assets and Alley had no standing to sue. Alley v. Clark, 71 F.Supp. 521 (E.D.N.Y.1947)
2
The property was vested in the Alien Property Custodian between 1942 and 1945 by vesting orders numbered 352, 353, 354, 4754, 4755 and 7611. The complaint alleges these properties were liquidated for a sum in excess of $1,300,000
3
Legerlotz v. Rogers, 105 U.S.App.D.C. 256, 266 F.2d 457, 459 (1959); McGrath v. Zander, 85 U.S.App.D.C. 334, 177 F.2d 649, 652 (1949)
4
Section 32(a) was enacted subsequent to the major portions of the Act, and was intended to permit the Attorney General at his discretion to obviate injustices that might result. For analysis of the statute, see Schilling v. Rogers, 363 U.S. 666, 674-675, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); McGrath v. Zander, 177 F.2d at 652
5
Section 9(a) provides that: 'Any person not an enemy or ally of (an) enemy claiming any interest, right, or title in any money or other property which may have been conveyed . . . or paid to the Alien Property Custodian or seized by him hereunder and held by him . . . may file with the said custodian a notice of his claim under oath . . . and the President . . . may order the payment . . . or delivery to said claimant . . .. If the President shall not so order . . . said claimant may institute suit in equity . . . in the district court of the United States . . . to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment . . . or delivery to said claimant . . ..'
6
When seeking recovery of seized property under the Act the petitioner has the burden of showing himself not to be an 'enemy' or 'ally of an enemy' within the meaning of the Act. Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Manufacturers Trust Co. v. Kennedy, 291 F.2d 460, 462 (2d Cir. 1961)
7
The court couched its findings in terms of failure of proof. Nevertheless, in order to rule that appellant was ineligible for 9(a) treatment, the court must necessarily have found that he was an 'ally of an enemy' for purposes of the Act. See Von Clemm v. Smith, 255 F.Supp. at 355-356, 367, 369
8
Section 7(c) of the Act provides: 'The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred . . . to the Alien Property Custodian . . . shall be that provided by the terms of this Act . . ..'
9
In Schilling an alien filed a claim under 32(a) for return of property, the claim was denied and the alien sought judicial review of a question of law: whether he was excluded under the Act from all relief. The Supreme Court held that 7(c) of the Act precluded judicial review of the administrative disposition. The court also held that the Administrative Procedure Act was not applicable because by its terms no judicial review is afforded where '(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.' The court found the 7(c) of the Act invokes both limitations: 'The Trading with the Enemy Act excludes a judicial remedy in this instance, and that . . . because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act by its own terms is unavailing to the petitioner.' Schilling, supra, 363 U.S. at 676
10
E.g., Crowell v. Benson, 285 U.S. 22, 54, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Ng Fung Ho v. White, 259 U.S. 276, 285-286, 42 S.Ct. 492, 66 L.Ed. 938 (1922); see also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 80 L.Ed. 1033 (1936); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908 (1920); Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts, 66 Harv.L.Rev. 1362 (1953)
11
While we do not reach this claim, we think it may be weakened by the Supreme Court's holding in Calero-Toledo v. Pearson Yacht Leasing Co., U.S. , 94 S.Ct. 2080, 40 L.Ed.2d 452, 42 U.S.L.W. 4693, 4701 (1974)
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/17/15 In re Joshua A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOSHUA A., a Person Coming
Under the Juvenile Court Law.
D067498
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ3656)
Plaintiff and Respondent,
v.
CHARLOTTE A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Jennifer Stone, Deputy County Counsel, for Plaintiff and Respondent.
Charlotte A. challenges the finding that her boyfriend, Luis O., did not qualify as a
nonrelative extended family member (NREFM) for placement of her son Joshua A. She
contends the juvenile court erred as a matter of law when it ruled a parent is not a relative
within the meaning of Welfare and Institutions Code section 361.3, subdivision (c)(2)1
for purposes of determining NREFM status. Charlotte also argues the juvenile court
erred when it did not order the San Diego County Health and Human Services Agency
(Agency) to evaluate Luis's home as a placement option for Joshua.
The Agency agrees the juvenile court misinterpreted section 362.7 when it ruled
Luis was not an NREFM. The Agency contends the error was harmless because the
juvenile court found it was not in Joshua's best interests to be placed with Luis, which
would have disqualified the placement had the court correctly determined Luis's NREFM
status.
We conclude the juvenile court erred as a matter of law when it ruled a parent is
not a relative within the meaning of 361.3, subdivision (c)(2) for purposes of determining
NREFM status within the meaning of section 362.7. The statutory scheme clearly allows
a person who has an established familial relationship with a parent of the dependent child
to qualify as an NREFM. However, the court did not abuse its discretion when it
determined placement with Luis was not in Joshua's best interests. Because placement
was not in Joshua's best interests notwithstanding Luis's status as an NREFM, the court
1 Further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
was not required to direct the Agency to complete its evaluation of his home. We affirm
the order.
FACTUAL AND PROCEDURAL BACKGROUND
Joshua is the 13-year-old son of Charlotte. In October 2014, Joshua was removed
from his mother's care after she became intoxicated and scratched and pinched him.
Police officers observed that Charlotte was "delirious" and "obviously intoxicated."
Charlotte denied she had a drinking problem.
The Agency filed a section 300 petition on Joshua's behalf. In its court report, the
Agency detailed seven earlier referrals to child protective services concerning Joshua's
safety, and Joshua's prior adjudication as a juvenile court dependent. All those referrals,
as well as the previous dependency, resulted from Charlotte's drinking. In 2011,
Charlotte was arrested for driving under the influence with Joshua in the car. In 2012,
Joshua found Charlotte unresponsive. She was hospitalized with a blood alcohol level of
.233. In 2013, Joshua was afraid to return home. Charlotte could be physically abusive
when intoxicated. Joshua was declared a dependent of the juvenile court. He remained
with his mother under a plan of family maintenance services. Charlotte completed
services and the juvenile court terminated jurisdiction six months later.
When the current dependency proceeding was initiated, the social worker asked
Charlotte for placement options for Joshua.2 Charlotte identified her boyfriend Luis.
Luis did not have any criminal or child protective history. Charlotte brought Luis with
2 Joshua did not have a significant relationship with his father, who lived in another
state.
3
her to visit Joshua after he was detained. Joshua was happy to see his mother but was
uncomfortable with Luis. He asked the social worker if Luis was allowed to yell at him.
Charlotte told Joshua she could visit him another time. Joshua chose to end the visit
early. Joshua told the social worker he wanted some time away from his mother and
hoped she would obtain treatment so she would not drink. He did not want to live with
Luis. Joshua said Luis was very strict and had called him "stupid."
At the contested disposition hearing, the social worker testified the Agency had
completed Luis's initial background checks and social interview, and concluded it was
not in Joshua's best interests to be placed with Luis. When the social worker tried to
discuss placement, Joshua said he was uncomfortable with Luis and did not want to be
alone with him in a home. The Agency did not recommend the placement because
Charlotte and Luis's relationship was of relatively short duration, Luis did not realize
Charlotte had a drinking problem, and Joshua was not comfortable with Luis and did not
want to live with him. The social worker said she was concerned that Luis's relationship
with Charlotte was not stable and Luis would not be committed to Joshua were he not
with Charlotte. Charlotte informed a police officer that problems in her relationship with
Luis had led to her drinking. Luis did not contact the social worker to inquire about
Joshua's well-being or to request visits. The social worker said the Agency did not
complete an assessment of Luis's home because it did not intend to place Joshua with
him.
Luis testified he and Charlotte had been dating for approximately a year and a
half. He stayed with her in her home one or two nights a week. They were still dating.
4
However, their relationship was "on hold" to allow each of them to work through
personal issues. Luis said he could assure Charlotte did not drink when Joshua was
present. He would follow court orders, cooperate with the Agency and report any lapses
in Charlotte's behavior. Luis said his and Joshua's relationship was "good for the most
part" and described the activities and experiences they shared, including playing Frisbee
and catch, and swimming and hiking. If he could, he helped Joshua with his homework.
Joshua was a "very, very good kid" but acted defiantly toward his mother. Luis denied
calling Joshua "stupid." He said he did not talk that way to children. Luis did not
understand why Joshua would not want to live with him. He had the means to support
Joshua and could provide a stable residence for him, as well as adult guidance.
Luis said he had not been aware of Charlotte's alcoholism but now realized the
extent of her problem. He acknowledged drinking with her. Charlotte became a little
tipsy on occasion but he did not recall her being drunk. Her drinking was typical for
anyone who drank. He did not believe Charlotte was a danger to Joshua. Luis
acknowledged telling the social worker he could not provide a long-term placement for
Joshua. He had changed his mind and was willing to have Joshua live with him long-
term if necessary. Luis said it was "more [Charlotte's] idea" to have Joshua live with
him.
The juvenile court asked the parties whether a parent was included in the
definition of a relative under section 361.3, subdivision (c)(2). County counsel and
mother's attorney said it did. Minor's counsel argued the Legislature did not intend to
include a parent in the definition of a relative under section 361.3, subdivision (c)(2),
5
pointing out other statutes in the dependency code distinguish between a parent and a
relative.
The juvenile court found that under a strict interpretation of section 361.3,
subdivision (c)(2), Luis did not meet the description of an NREFM because the term
"parent" was not included in the definition of a relative. Further, Luis was not entitled to
NREFM status because he did not have a familial or mentoring relationship with Joshua.
Joshua had a negative reaction to Luis. Placing a teenager in a home in which he was
uncomfortable could be destabilizing. The court was not willing to conduct "a grand
experiment" at the risk of having to find multiple placements for Joshua. The court also
questioned Luis's ability to recognize Charlotte's alcoholism and protect Joshua. Even if
Luis qualified as an NREFM, the court would not place Joshua with Luis.
DISCUSSION
A
Applicable Law and Issues Raised
Where, as here, a child has been removed from a parent's care under section 361,
and the child is not placed with a noncustodial parent or relative, the social worker may
place the child in the approved home of an NREFM. (Samantha T. v. Superior Court
(2011) 197 Cal.App.4th 94, 108 (Samantha T.); In re R.T. (2015) 232 Cal.App.4th 1284,
1298-1299.) Section 362.7 defines an NREFM as "an adult caregiver who has an
established familial relationship with a relative of the child, as defined in [section 361.3,
subdivision (c)(2)], or a familial or mentoring relationship with the child." A relative is
6
"an adult who is related to the child by blood, adoption, or affinity[3] within the fifth
degree of kinship, including stepparents, stepsiblings, and all relatives whose status is
preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these
persons even if the marriage was terminated by death or dissolution."4 (§ 361.3, subd.
(c)(2).)
Charlotte contends Luis is Joshua's NREFM under either definition of section
362.7. She argues the juvenile court erred when it found that she was not a relative of the
child, as that term is defined in section 361.3, subdivision (c)(2), for purposes of
determining NREFM status. Charlotte states a parent is within "the fifth degree of
kinship" (ibid.) and thus is a relative of the child. She argues Luis qualifies as an
NREFM because he had an established familial relationship with her or alternatively,
because he had a familial or mentoring relationship with Joshua. (§ 362.7.)
3 " 'Affinity' " means the connection existing between one spouse or domestic
partner and the blood or adoptive relatives of the other spouse or domestic partner. (Cal.
Rules of Court, rule 5.502(1).) (Further rule references are to the California Rules of
Court.)
4 See also rule 5.502(34): " 'Relative' means[:]
(A) An adult who is related to the child by blood, adoption, or affinity within the fifth
degree of kinship. This term includes:
(i) A parent, sibling, grandparent, aunt, uncle, nephew, niece, great-grandparent,
great-aunt or -uncle (grandparents' sibling), first cousin, great-great-grandparent, great-
great-aunt or -uncle (great-grandparents' sibling), first cousin once removed (parents' first
cousin), and great-great-great-grandparent;
(ii) A stepparent or stepsibling; and
(iii) The spouse or domestic partner of any of the persons described in
subparagraphs (A)(i) and (ii), even if the marriage or partnership was terminated by death
or dissolution; or
(B) An extended family member as defined by the law or custom of an Indian child's
tribe. (25 U.S.C. § 1903(2).)"
7
B
Standard of Review and Principles of Statutory Interpretation
The primary argument on appeal involves an issue of statutory interpretation,
which we review de novo. (In re D.S. (2012) 207 Cal.App.4th 1088, 1097 (D.S.).)
In ascertaining legislative intent, we look first to the words of the statute, giving
effect to their plain meaning. (In re P.A. (2011) 198 Cal.App.4th 974, 979.) If the
statutory language is clear and unambiguous, we presume the Legislature meant what it
said and the plain meaning of the statute governs. (Murphy v. Kenneth Cole Productions,
Inc. (2007) 40 Cal.4th 1094, 1103.) We construe the language in the context of the
statute as a whole and the overall statutory scheme, and give significance to every word,
phrase, sentence and part of an act in pursuing the legislative purpose. (In re Adrianna P.
(2008) 166 Cal.App.4th 44, 57.) Where the Legislature refers to a particular statute
containing a word or phrase, the omission of another word or phrase in that statute, or the
lack of reference to another statute dealing with the same general subject matter, shows a
different legislative intent. (In re E.M. (2014) 228 Cal.App.4th 828, 844.) We avoid
construing a statute in a manner that would render parts of the statute surplusage. (D.S.,
supra, 207 Cal.App.4th at p. 1097.)
C
For Purposes of Determining NREFM Status, A Parent Is A Relative Within the Meaning
of Section 361.3, Subdivision (c)(2)
The definition of relative under section 361.3, subdivision (c)(2) includes an adult
who is related to the child by blood, adoption, or affinity within the fifth degree of
8
kinship. By its plain meaning this includes a parent, who is related to his or her child in
the first degree of lineal kinship. (Rule 5.502(34); Prob. Code, § 13, subd. (b).)5
Although the dependency code draws a distinction between a parent and a relative in
other contexts,6 we conclude the Legislature did not intend to distinguish between a
parent and other relatives for purposes of determining NREFM status.
5 Probate Code section 13 explains "[t]he degree of kinship or consanguinity
between two persons is determined by counting the number of generations separating
those persons, pursuant to subdivision (b) or (c). Each generation is called a degree."
(Id., subd. (a).) "Lineal kinship or consanguinity is the relationship between two persons,
one of whom is a direct descendant of the other. The degree of kinship between those
persons is determined by counting the generations separating the first person from the
second person. In counting the generations, the first person is excluded and the second
person is included. For example, parent and child are related in the first degree of lineal
kinship or consanguinity, grandchild and grandparent are related in the second degree,
and great-grandchild and great-grandparent are related in the third degree." (Id., sub.
(b).)
"Collateral kinship or consanguinity is the relationship between two people who
spring from a common ancestor, but neither person is the direct descendent of the other.
The degree of kinship is determined by counting the generations from the first person up
to the common ancestor and from the common ancestor down to the second person. In
counting the generations, the first person is excluded, the second person is included, and
the common ancestor is counted only once. For example, siblings are related in the
second degree of collateral kinship or consanguinity, an aunt or uncle and a niece or
nephew are related in the third degree, and first cousins are related in the fourth degree."
(Prob. Code, § 13, subd. (c).)
6 For example, section 361.3 governs placement with a relative when a child is
removed from the custody of his or her parent. Even though a parent is a relative within
the definition of section 361.3, subdivision (c)(2), in that context, the juvenile court is not
required to consider placing a child with a parent. If the literal meaning of a word or
sentence, when considered in the context of a statute, is contrary to the legislative intent
apparent in the statute, its literal construction will not be adopted. (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387; Amador Valley
Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [a
literal construction of statutory language that leads to absurd results may be disregarded
for a construction that furthers the legislative intent apparent in the statute].)
9
Before January 1, 2014, an NREFM was defined as "any adult caregiver who has
an established familial or mentoring relationship with the child." (Former § 362.7; Stats.
2013, ch. 294, § 1; Samantha T., supra, 197 Cal.App.4th at p. 108.) In Samanatha T.,
this court, noting that it was sympathetic to the Agency's argument a narrow
interpretation of section 362.7 might prevent otherwise appropriate placements, held that
a woman who had a long-standing and close relationship with the children's mother did
not meet the definition of an NREFM because she did not have a familial or mentoring
relationship with the children. (Samantha T., at pp. 97, 110-111.)
In 2013, this court decided In re Michael E. (2013) 213 Cal.App.4th 670 (Michael
E.), which concerned the juvenile court's refusal to consider the father's girlfriend, who
was the mother of the dependent child's half sibling, for placement as the dependent
child's NREFM. (Id. at p. 674.) Rejecting the argument NREFM status is conferred
through a mutual relative when there is no existing relationship between the child and the
person seeking recognition as an NREFM, this court noted that section 362.7, by its plain
terms, applies when the child has an existing relationship with an individual seeking
NREFM status. (Michael E., at p. 675.) Notwithstanding the plain terms of the statute,
this court concluded the juvenile court should have considered whether the child's
placement with his half sibling's mother would further the legislative goals of allowing
Similarly, section 361.2 controls placement in the custody of a noncustodial parent
under section 361.2. The more specific statute controls placement with a noncustodial
parent. If we can reasonably harmonize two statutes dealing with the same subject, we
give concurrent effect to both, even though one statute is specific and the other is general.
(In re Greg F. (2012) 55 Cal.4th 393, 407.) Thus, although a noncustodial parent is the
child's relative within the meaning of section 361.3, subdivision (c)(2), a parent is not
considered for relative placement under section 361.3.
10
the child to remain in familiar surroundings, facilitating family reunification or providing
a culturally sensitive environment to the child. (Id. at pp. 675-676.)
Less than eight months after Michael E. was decided, the Legislature modified
section 362.7 to include "an adult caregiver who has an established familial relationship
with a relative of the child, as defined in paragraph 2 of subdivision (c) of Section 361.3"
as an alternative definition of an NREFM. (Stats. 2013, ch. 294, § 1, italics added.) The
Legislature is deemed to be aware of statutes and judicial decisions in existence. (People
v. Neild (2002) 99 Cal.App.4th 1223, 1226.) We presume the Legislature amended
section 362.7 in view of its recognition that a parent is related to his or her child in the
first degree of lineal kinship (Prob. Code, § 13, subd. (b)), and its awareness of judicial
decisions noting that the existing limited definition of NREFM did not comport with its
goals of maintaining stability for a child who has been removed from parental custody
(Michael E., supra, 213 Cal.App.4th at pp. 675-676; Samantha T., supra, 197
Cal.App.4th at pp. 109-110). The intent of the Legislature to include a person with
established familial ties to a parent as an NREFM is clearly expressed both in the plain
language of section 362.7 as well as the statute's judicial and legislative history. It would
be anomalous to afford NREFM status to someone who has an established familial
relationship with the child's cousin or stepparent, but deny NREFM status when that
person's familial relationship is only with the child's parent.
We conclude the juvenile court misinterpreted the law and abused its discretion
when it ruled that Luis was not an NREFM because the term "parent" was not included in
the definition of a relative. Luis was an NREFM because he had an established familial
11
relationship with Charlotte. He also qualified as an NREFM because he had a familial
relationship with Joshua. "Familial" means "of, relating to, or suggestive of a family."
(Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 451, col. 2.) Luis and Charlotte
had dated for a year and a half. Luis spent one or two nights a week in the family home.
He helped Joshua with his homework, played sports with him, and went swimming and
hiking. Although Joshua reacted negatively to Luis, that does not defeat Luis's status as
an NREFM. However, as we will discuss, the juvenile court properly considered the
nature of Joshua's relationship with Luis in determining whether the placement was in
Joshua's best interests.
D
The Juvenile Court Was Not Required to Order the Agency to Evaluate Luis's Home
Charlotte contends that because Luis qualified as an NREFM, the juvenile court
was required to order the Agency to evaluate Luis's home for placement. We disagree.
Section 362.7 provides: "When the home of [an NREFM] is being considered for
placement of a child, the home shall be evaluated, and approval of that home shall be
granted or denied, pursuant to the same standards set forth in the regulations for the
licensing of foster family homes that prescribe standards of safety and sanitation for the
physical plant and standards for basic personal care, supervision, and services provided
by the caregiver." Thus the purpose of an evaluation is to ensure (1) the home meets
standards for safety and sanitation and (2) the NREFM can provide appropriate basic
personal care, supervision and services to the child. However even if the home meets
12
foster care standards for approval, any placement under section 362.7 must be in the
child's best interests. (Samantha T., supra, 197 Cal.App.4th at p. 108.)
"The best interest of the child is the fundamental goal of the juvenile dependency
system, underlying the three primary goals of child safety, family preservation, and
timely permanency and stability. [Citation.] 'The concept of a child's best interest "is an
elusive guideline that belies rigid definition. Its purpose is to maximize a child's
opportunity to develop into a stable, well-adjusted adult." [Citation.]' " (In re William B.
(2008) 163 Cal.App.4th 1220, 1227.) We review the juvenile court's order for abuse of
discretion. "[R]eversal is warranted only if there is no reasonable basis on which the trial
court could conclude that its decision advanced the best interests of the child." (In re
Marriage of Melville (2004) 122 Cal.App.4th 601, 610 (Melville).)
Here, at the time of the contested disposition hearing, the Agency had completed a
portion of the evaluation required for placement―Luis's initial background checks and
social interview. The social worker spoke with Joshua several times about placement
with Luis. Based on a number of factors, including Joshua's aversion to Luis, the social
worker concluded it was not in Joshua's best interests to place him with Luis. Charlotte
disagreed with the social worker's conclusion and asked the juvenile court to order the
Agency to complete its evaluation of Luis's home.
The juvenile court reasonably concluded placement with Luis was not in Joshua's
best interests. The court determined that placement with Luis would not offer Joshua the
desired degree of stability necessary for a child in out-of-home placement. In large part,
this was due to Joshua's consistent negative reactions to the proposed placement. The
13
court also found that Luis could not adequately supervise Joshua and questioned his
ability to protect Joshua from Charlotte. The court did not abuse its discretion when it
determined that placement in foster care was in Joshua's best interests. (Melville, supra,
122 Cal.App.4th at p. 610.) Thus, the juvenile court was not required to order the
Agency to complete its evaluation of Luis's home.
Although the juvenile court erred when it determined that a parent is not a relative
for purposes of determining NREFM status, a judgment may not be reversed on appeal
unless the reviewing court, after examining the entire cause, including the evidence,
concludes that the error caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) We
conclude that it was not reasonably probable a result more favorable to the appellant
would have been reached in the absence of error. (People v. Watson (1956) 46 Cal.2d
818, 836.)
DISPOSITION
The order is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
MCDONALD, J.
14
| {
"pile_set_name": "FreeLaw"
} |
13 B.R. 697 (1981)
In re John R. MILLER, Elizabeth Ann Miller (Elizabeth Ann Lightcap-maiden name), Debtors.
Bankruptcy No. 79-02318T(7).
United States Bankruptcy Court, E.D. Pennsylvania.
August 18, 1981.
*698 Jeffrey L. Greenwald, Easton, Pa., for debtors.
David C. Schattenstein, Perkin, Rapoport & Schattenstein, Allentown, Pa., for William and Gloria Kiefer.
David F. Dunn, Allentown, Pa., for trustee.
OPINION
THOMAS M. TWARDOWSKI, Bankruptcy Judge.
This case is before us on the debtors' application to withdraw an application for reaffirmation. The creditors with whom the debtors originally agreed to reaffirm object to the proposed withdrawal, and assert that the agreement is enforceable, notwithstanding the fact that this court has not approved the reaffirmation agreement. For reasons hereinafter given, we grant the debtors' application to withdraw.[1]
The facts of this case are as follows:
In September of 1978, the debtors entered into an agreement with William and Gloria Kiefer [hereinafter, the Kiefers], whereby the debtors agreed to purchase a parcel of real property from the Kiefers.[2] The purchase was financed in part by a loan from the First National Bank of Allentown, and in part by a loan from the Kiefers. To secure repayment of the loans, the debtors granted a mortgage to the Bank, and executed a judgment note in favor of the Kiefers. The judgment note contained a confession of judgment clause, which permitted the Kiefers to docket a judgment against the debtors, which the Kiefers did on November 20, 1978. The judgment was filed in the office of the Prothonotary of Northampton County, Pennsylvania, which created a lien on the debtors real property in that county. 42 Pa.Cons.Stat.Ann. § 4303 (Purdon). The transaction was closed in November of 1978, and the debtors went into possession of the premises.
In December of 1979, the debtors filed a joint voluntary petition seeking relief under Chapter 7 of the Bankruptcy Code [11 U.S.C. §§ 101-1330 (1979); hereinafter, the Code]. Shortly after the first meeting of creditors, the debtors entered into separate reaffirmation agreements with both the Kiefers and the Bank. Prior to the regularly scheduled discharge hearing, the debtors filed an application to reaffirm, apparently seeking court approval of the agreement. The discharge hearing was held on May 28, 1980, whereupon the court conducted the statutorily mandated colloquy with the debtors.[3] The court informed the debtors *699 that the reaffirmation agreements were not required under any provision of the Code. Apparently, the debtors had executed the agreements under the mistaken impression that the reaffirmation agreements were necessary in order for them to retain possession of the real property. The court did not rule on the issue of whether the agreements were in the best interests of the debtors, see, 11 U.S.C. § 524(c)(4) (1979), as the debtors indicated a desire to reconsider the reaffirmation agreements, whereupon the discharge hearing was continued.
On June 11, 1980, the debtors filed an application to amend their petition to include as exempt their interest in the real property.[4] On June 26, 1980, the debtors filed the instant application to withdraw the application to reaffirm with respect to the agreement with the Kiefers. The Kiefers opposed the application to withdraw at the continued discharge hearing on July 24, 1980.
11 U.S.C. § 524(c) (1979)[5] deals with the enforceability of reaffirmation agreements. The section lists one conditional and three absolute requirements for a reaffirmation agreement to be enforceable. First, the agreement must be made prior to the granting of the discharge; second, the court must have conducted the "discharge colloquy" as required by Section 524(d); third, in cases concerning an individual, if the debt upon which the reaffirmation is based is a consumer debt not secured by real property, the court has inquired into the effect and purpose of the reaffirmation, and approved the agreement;[6] and finally, the debtor must not have rescinded the agreement within 30 days after the agreement becomes enforceable.[7]
The Kiefers argue that their agreement with the debtors is one "secured by real property," and that therefore, no court approval is necessary for the enforcement of the agreement. Further, they argue that the agreement became enforceable upon its execution by debtors and the passage of thirty days from that date. The Kiefers' seem to believe that the original application to reaffirm was meaningless.
Without deciding the question of whether the lien obtained by docketing of a confessed judgment makes the underlying debt one "secured by real property," we conclude that the Kiefers' arguments are without *700 merit. Those arguments fail to take into account the provisions of Section 524(c)(3). While it is true that the colloquy has been conducted in this case, we conclude that if it is from the last event which confers "preliminary" enforceability here, the discharge colloquy that the thirty day period begins to run. Whether or not court approval is necessary for "preliminary" enforceability, we fail to see how the provisions of Section 524(c)(3) can be overlooked. The debtors have reconsidered the agreement and have sought to rescind it within the thirty days beginning with the date of the discharge colloquy. We believe it clear that, under these circumstances, debtors need not comply with the terms of the agreement with the Kiefers.
The legislative history of Section 524(c) makes it clear that the provisions for the enforceability of reaffirmation agreements were not met with unanimous approval by those drafting the Code.[8] Indeed, the final draft of Section 524(c) is somewhat of a compromise, with strict judicial scrutiny of most agreements, and a fully informed debtor in all, a prerequisite to enforceability.[9]
The debtors are entitled to reconsider their reaffirmation agreements once all other prerequisites to enforceability have been met, and they have done so. For all the above reasons, the debtors application to withdraw is granted.
NOTES
[1] This opinion constitutes the findings of fact and conclusions of law as required by Rule 752 of the Rules of Bankruptcy Procedure.
[2] The real property contained improvements in that a mobile home was on the parcel. The Kiefers do not contend that the mobile home is subject to their lien.
[3] 11 U.S.C. § 524(d) (1979) provides:
(d) in a case concerning an individual, when the court has determined whether to grant or not to grant a discharge under section 727, 1141, or 1328 of this title, the court shall hold a hearing at which the debtor shall appear in person. At such hearing, the court shall inform the debtor that a discharge has been granted or the reason why a discharge has not been granted. If a discharge has been granted and if the debtor desires to make an agreement of the kind specified in subsection (c) of this section, then at such hearing the court shall
(1) inform the debtor
(A) that such an agreement is not required under this title, under nonbankruptcy law, or under any agreement not made in accordance with the provisions of subsection (c) of this section; and
(B) of the legal effect and consequences of
(i) an agreement of the kind specified in subsection (c) of this section; and
(ii) a default under such an agreement;
(2) determine whether the agreement that the debtor desires to make complies with the requirements of subsection (c)(4) of this subsection, if the consideration for such agreement is based in whole or in part on a consumer debt that is not secured by real property of the debtor.
[4] Rule 110 of the Rules of Bankruptcy procedure allows for the amendment of a voluntary petition "as a matter of course at any time before the case is closed." We granted this application by order dated November 6, 1980.
The debtors have since sought to avoid the Kiefers' lien to the extent it impairs their claimed exemption pursuant to 11 U.S.C. § 522(f) (1979). That application and objections to it remain pending a hearing on the matter.
[5] Section 524(c) of the Code provides:
(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.
[6] See, In re Coots, 4 B.R. 281, 2 C.B.C.2d 233, 6 BCA 429 (Bkrtcy.S.D.Ohio 1980).
[7] A literal reading of the statute results in a non-sequitur. The statute premises enforceability of the agreement upon the debtor not having rescinded within 30 days of the date the agreement becomes enforceable. Thus, the effect of the document is predicated upon the occurrence, or non-occurrence, of an act which can only take place when the effect is known. Despite the confused wording of the statute, the intent of Section 524(c)(2) that the debtor have a thirty day reconsideration period remains clear.
[8] See, 124 Cong.Rec. S14743 (daily ed. Sept. 7, 1978) (remarks of Sen. Kennedy).
[9] See 124 Cong.Rec. H11096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); 124 Cong. Rec. S27406 (daily ed. Oct. 6, 1978) (remarks of Sen. Wallop).
| {
"pile_set_name": "FreeLaw"
} |
126 So.2d 464 (1961)
W. J. ROLLAN et al.
v.
Moody S. POSEY et ux.
3 Div. 838.
Supreme Court of Alabama.
January 26, 1961.
*465 Taylor & Newby, Prattville, Omar L. Reynolds, and Reynolds, & Reynolds, Clanton, for appellants.
Gipson & Bridges, Prattville, for appellees.
COLEMAN, Justice.
This is an appeal from a final decree of the circuit court, in equity, establishing a boundary line.
Complainants' land lies on the north side and respondents' land on the south side of the disputed line. Under a deed to respondent W. J. Rollan, the respondents claim the southeast quarter of the northeast quarter of Section 12, Township 17, Range 15 East, in Autauga County. The respondents claim that the true boundary between the lands of the parties is the north boundary line of that forty acres.
Autauga Creek flows along a meandering course from west to east across the north end of said forty acres. Complainants have a deed to the Booth Place. The deed describes the Booth Place by courses and distances and the boundary at one instance is described as "* * * thence south 40 degrees west 2.00 chains to Autauga Creek, thence up Autauga Creek to a point where Breakfast Creek runs into Autauga Creek * * *." Complainants claim that the true boundary is "the thread or center of Autauga Creek." Both parties lay claim to the land lying between the north boundary of said forty acres and Autauga Creek, and both parties have a deed to the disputed strip.
The court heard testimony ore tenus and established the line as claimed by complainants. Respondents have appealed.
Respondents contend that the court erred in establishing the line as aforesaid; in admitting in evidence an affidavit dated November 5, 1951, which affirms that complainants have been in adverse possession of the Booth Place for 35 years; and in rendering a final decree in the absence of *466 a necessary party, namely, The Federal Land Bank of New Orleans, the mortgagee in a mortgage covering the land of complainants which mortgage is admittedly outstanding and unpaid.
1. Respondents state in brief that because complainants' deed recites that the boundary runs "to Autauga Creek," the court could not "find upon any theory that the center of Autauga Creek is the true boundary line."
We do not agree. The line is described in complainants' deed as running "to Autauga Creek, thence up Autauga Creek to a point," etc. We consider Autauga Creek as nonnavigable because, being above tidewater, it is, prima facie, not a navigable stream, Rhodes v. Otis, 33 Ala. 578; Olive v. State, 86 Ala. 88, 5 So. 653, 4 L.R.A. 33; Morrison Brothers & Co. v. Coleman, 87 Ala. 655, 6 So. 374, 5 L.R.A. 384. There is neither evidence nor contention that it is navigable. Briefly the law is that adjoining proprietors of land having a nonnavigable stream as a boundary line between them take each to the middle or thread of the stream. Bullock v. Wilson, 2 Port. 436; Greenfield v. Powell, 218 Ala. 397, 118 So. 556. The language of a deed was: "Thence south to the Arkansas river; thence up said river to where it is intersected by the south line of the town." The court held that where, as in that deed, a nonnavigable river is named as a monument, the grant extends to its center, and the thread of the stream is the true boundary. Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 435, 42 L.R.A. 502, 513. The presumption that the line between owners bordering on a nonnavigable stream is the thread of the stream is based on the assumption that the grantor who conveyed the land bordering the stream intended that the boundary of the lands of the grantee should extend to the thread of the stream. 8 Am. Jur. 761, Boundaries, § 22. This presumption, founded upon the assumed intent of the parties, has now become a rule of property. If the grantor desires to retain his title to the land underneath the water, the presumption must be negatived by express words or such description as clearly excludes it from the land conveyed. Stewart v. Turney, 237 N.Y. 117, 142 N.E. 437, 31 A.L.R. 960. The words in complainants' deed in the instant case certainly do not exclude the land under the water. If Autauga Creek is the correct boundary line between the lands of the instant parties, and we think it is the correct line, then the court was not in error in establishing the thread of the stream as the boundary line.
2. Respondent W. J. Rollan claims title to SE¼ of NE¼ of said Section 12 by a deed from Metropolitan Life Insurance Company, a corporation, dated November 10, 1937. The other respondents claim title to their respective parcels of said forty acres by deeds from W. J. Rollan. Rollan placed in evidence deeds showing a chain of conveyances ending in him in 1937 as aforesaid and commencing with a deed executed by A. Y. Smith dated November 29, 1900. Complainants claim title to the Booth Place by a deed from Myra Booth Murphree, Alice Booth Wilkinson, and their respective spouses, dated January 20, 1945. The description of the Booth Place in deed to complainants includes that portion of SE¼ of NE¼ of said Section 12 lying between Autauga Creek and the north boundary line of said forty acres. The deeds placed in evidence show a chain of conveyances to complainants ending in them in 1945 as aforesaid and commencing with two deeds from Daniel B. Booth to his wife, both dated January 5, 1916.
Respondents (appellants) argue that "appellants' record title to the disputed strip antedates that of the appellees for a period of some sixteen years," and, therefore, because there is "a conflict in the survey or an overlapping in the lands conveyed that the elder survey and the elder grant will control," citing Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837; Adams v. Wilson, 137 Ala. 632, 34 So. 831; Dunn v. Stratton et al., 160 Miss. 1, 133 So. 140; 11 C.J.S. Boundaries §§ 60-61, pp. 632-633.
*467 There is only one survey in the record. There is no conflicting survey. There is an overlapping in the descriptions in the deeds in that the descriptions in the deeds of both parties include the disputed strip of land. We do not understand, however, that either party has proved ownership of the record title because neither traces title from the United States or other sovereign. We do not think the evidence will support a finding that respondents proved anywhere a conveyance from a grantor in possession. It is held in Dunn v. Stratton, supra, that the elder of two deeds from a common grantor will prevail, but in the instant case the two chains of conveyances do not emanate from a common grantor. We have not been cited to nor do we know of any case which holds that a claim of title is superior to another merely because the first claim rests on a deed at the end of a chain of conveyances which commences with a deed from a private person, bearing an earlier date than the deed from a different private person with which the second chain of conveyances commences. Appellants' argument based on the fact that the first deed in their chain is dated 1900 while the first deed in appellees' chain is dated 1916 is without merit. Appellants have not shown a superior title to the disputed strip by their chain of conveyances commencing in 1900 as aforesaid.
3. In 1954, respondent W. J. Rollan employed a surveyor and subdivided the SE ¼ of NE¼ of said Section 12 into a number of lots bordering on the highway which runs across it from northwest to southeast. The map showing the platting of the lots is in the record. The surveyor placed markers at the northeast and northwest corners of the forty and some time after the survey, W. J. Rollan erected a two-strand barbed wire fence between the two corners. The disputed land lies between the fence and the Creek. It is low, swampy land, is not in cultivation, and has no improvements on it other than the fence. The fence is nailed to a tree at least in part.
The testimony for complainants tended to show that the Booth Place had been in possession of Daniel Booth who lived on it as far back as 1900; that his occupancy extended to the creek; that he cut firewood on the disputed strip; that his children used a swimming hole in the creek bordering the disputed strip; that no person went to the swimming hole except by invitation of the Booths; that complainants' immediate grantors were daughters of Daniel Booth and inherited the land under the will of their mother who died in 1931; that the Booth Place was conveyed to complainants by their aforesaid grantors in 1945; that complainants went into possession and within one or two years after 1945 ran fences from the creek so as to enclose the disputed strip in their pasture and to use the creek as one side of their pasture; that they sold the timber off the entire place, including the disputed strip, in 1947 and the purchaser cut the timber, although respondent W. J. Rollan objected; that complainants have had cattle in the pasture which included the disputed strip for 6 or 7 years; that complainants posted "no trespassing notices" the first year after they bought the land; and that complainants knew nothing of the fence erected by W. J. Rollan until after he had built it.
W. J. Rollan, when asked how often he visited "this property," replied "I don't know, in the Fall of the year I would go hunting and I would go over it and cut some timber and bring back," and that he did this "every two or three years." We do not think there is any other evidence tending to show occupation of the disputed strip by respondents until W. J. Rollan built the fence some time after the survey in March, 1954.
The trial judge heard the witnesses testify and could find from the evidence that complainants were in possession of the disputed strip after 1945 until the fence was erected in 1954, or thereafter, and that respondents did not have any sort of possession until after 1954. The evidence supports *468 a finding that complainants had the older possession and that the possession of respondents since 1954 had not ripened into title by adverse possession.
The rule is that where neither party has the true title, the older possession gives the better right, and such right is not defeated by a subsequent entry and occupation by the opposing claimant until it has ripened into title by adverse possession. Reddick v. Long, 124 Ala. 260, 27 So. 402; Gilchrist v. Atchison, 168 Ala. 215, 52 So. 955; see also Lathem v. Lee, 249 Ala. 532, 535, 32 So.2d 211. In the instant case, complainants had shown a prior possession in themselves and respondents' subsequent entry and occupancy had not ripened into title. The court was, therefore, justified in finding that complainants had the better right to the disputed strip although complainants' occupancy of it may not have been precisely shown to have been of ten years' duration.
The evidence tends to show also that Daniel Booth, one of complainants' predecessors, exercised acts of possession over the disputed strip as far back as 1900, and complainants are entitled to the benefit of the rule that when possession is once shown it is presumed to continue until or unless the contrary is shown. Alabama State Land Company v. Matthews, 168 Ala. 200, 53 So. 174; Sisson v. Swift, 243 Ala. 289, 9 So.2d 891. Nothing contrary to the presumption of continued possession by Booth and his successors is shown.
4. Appellants state in brief that the affidavit dated November 5, 1951, wherein affirmation is made that complainants and those under whom they claim have been in possession of the Booth Place for thirty-five years, is incompetent evidence and should not be considered under the holding in Stewart Brothers v. Ransom, 204 Ala. 589, 87 So. 89. We have not considered the affidavit as evidence and our decision is not based in anywise on the affidavit. We have not found in the record any objection to admission of the affidavit in evidence. Under Act No. 101, approved June 8, 1943, General Acts 1943, page 105, which appears in 1955 Cumulative Pocket Parts, Code 1940, as Title 7, § 372(1), admission of the affidavit as aforesaid was not error to reverse. Under the statute we presume that the trial judge considered only that evidence which was relevant, material, competent, and legal. Dougherty v. Hood, 262 Ala. 311, 78 So.2d 324.
5. Appellants insist that the decree should be reversed because the record shows that the lands of complainants are subject to a mortgage to the Federal Land Bank, executed by complainants and dated November 14, 1951, which is outstanding and unpaid according to the admission of one of the complainants on cross-examination by appellants, and the mortgagee is not a party to this suit.
The mortgage was offered in evidence by appellants. We do not find any objection to nonjoinder of the mortgagee raised in the trial court. Apparently, nonjoinder of the mortgagee is objected to for the first time on this appeal.
The general rule in a court of equity is that all persons having a material interest, legal or equitable, in the subject matter of a suit, must be made parties, either as plaintiffs or defendants. The rule proceeds on the principle that no man's rights should be controverted in a court of justice unless he has full opportunity to appear and vindicate them; and further, that complete justice may be done and future litigation avoided, the performance of the decree being safe, because of the presence in court of all parties who have an interest in its subject matter. The general rule further is that if a bill is defective for the want of proper parties, advantage should be taken of the defect by plea, demurrer, or answer, and if not so taken, the objection is waived. The rule is subject to the exception that if a cause cannot be properly disposed of, on the merits, without the presence of the absent parties, the objection *469 may be made at the hearing, or on error, it may be taken by the court ex mero motu. Prout v. Hoge, 57 Ala. 28. See also: Batre v. Auze's Heirs, 5 Ala. 173; McMaken v. McMaken, 18 Ala. 576; Woodward v. Wood, 19 Ala. 213; McCully v. Chapman, 58 Ala. 325; Watson v. Oates, 58 Ala. 647; Amann v. Burke, 237 Ala. 380, 186 So. 769; Matthews v. Matthews, 247 Ala. 472, 25 So. 2d 259; Garrison v. Kelly, 257 Ala. 105, 57 So.2d 345.
We are of opinion that under the foregoing rules, the mortgagee is such a necessary or indispensable party as that final decree ought not to be rendered in a suit to settle a disputed boundary without making the mortgagee a party to the suit.
In a suit to settle a disputed boundary, this court said: "The Court must have before it title to the property which is sought to be affected by the decree." Easterling v. Cleckler, 269 Ala. 660, 115 So.2d 516, 517. Other courts have said that in a boundary suit necessary parties included: all persons who have a direct interest in the result of the proceedings, Atkins v. Hatton, (Eng.), 2 Anstr. 386, 145 Reprint 911; Watkins v. Childs, 80 Vt. 99, 66 A. 805; Hazard Coal Corp. v. Getaz, 234 Ky. 817, 29 S.W.2d 573; McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068; Cady v. Kerr, 11 Wash.2d 1, 118 P.2d 182, 137 A. L.R. 713; tenants in common, Pope v. Melone, 2 A.K.Marsh. 239, 9 Ky. 239; and remaindermen and reversioners, Bayley v. Best, 5 Eng.Ch. 659, 39 Reprint 253.
For the omission of the mortgagee as a party the decree must be reversed and the cause remanded. As was decided in Prout v. Hoge, supra, the appellants, not having made this objection in the circuit court, are in fault and must pay one-half the costs of this appeal and the appellees the remainder.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
633 P.2d 311 (1981)
David SCHWING, Appellant,
v.
STATE of Alaska, Appellee.
No. 5695.
Court of Appeals of Alaska.
September 10, 1981.
*312 Nancy Shaw, Asst. Public Defender and Dana Fabe, Acting Public Defender, Anchorage, for appellant.
David Mannheimer, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
COATS, Judge.
David Schwing was originally indicted for five counts of sale of cocaine to the same police informant on different dates in April, May, and June of 1980. One of the counts was dismissed early in the case and was not the subject of any plea negotiations. Ultimately Schwing pled guilty to counts I and II in exchange for a dismissal of counts III and IV. Schwing was sentenced by Superior Court Judge Mark Rowland, who suspended imposition of sentence and placed Schwing on probation for a period of three years. Judge Rowland imposed the following special conditions of probation: 1) The defendant was required to serve six months in a correctional facility; 2) the defendant was required to make restitution in the amount of $2,800; and 3) upon release the defendant was to enter and successfully complete a drug rehabilitation program such as Akeela House.
Schwing raises two issues in this appeal. First, he contends that he was not given credit for time which he spent in Akeela House, a residential treatment facility, to which he was released on bail prior to sentencing. Second, he claims the trial court erred in requiring him to make restitution of the state money which he received from the five sales of cocaine to the state informant. Schwing claims that since he entered pleas to only two of the five counts of sale of cocaine, he can only be required under the restitution statute, AS 12.55.100(a)(2), to make restitution to the state for the money which he received in those transactions for which he was convicted. We find we must remand this case to the trial court for further proceedings.
CREDIT FOR TIME SERVED
Schwing was incarcerated after he was charged with the cocaine sales. He was then released on bond pending trial to Akeela House, an in-patient drug rehabilitation program. At the time of his sentencing Schwing had accrued 106 days in Akeela House. At the sentencing hearing Schwing's attorney argued that Schwing should be allowed to continue to stay at Akeela House and that no additional incarceration was necessary. After careful reflection, Judge Rowland concluded that the sentencing goals of reaffirmation of societal norms and deterrence of others required him to sentence Schwing to a period of six *313 months incarceration in a correctional facility as a condition of his probation on the suspended imposition of sentence. After this sentence was imposed, Schwing filed a motion to correct his sentence, arguing that Lock v. State, 609 P.2d 539 (Alaska 1980), required him to be given credit toward his sentence of imprisonment for time served in Akeela House. The state did not oppose this motion in the trial court. Judge Rowland denied the motion, stating that in imposing the condition of probation that the defendant serve six months in a correctional facility, he took into account the time which the defendant spent at Akeela House.
In Lock, the supreme court decided that when the trial court revoked a defendant's probation, it had to give credit for the time which the defendant previously served in a residential treatment facility as a condition of his probation. The court based its decision on former AS 11.05.040(a), which read in part:
A person who is sentenced shall receive credit toward service of his sentence for time spent in custody pending trial or sentencing, or appeal, if that detention was in connection with the offense for which sentence was imposed.[1]
The court held that time spent in a residential treatment facility was "time spent in custody." Lock v. State, 609 P.2d at 542.
The state argues on appeal that the Lock rationale does not apply to Schwing's case because it is clear from the sentencing proceeding that the trial judge was aware that Lock had spent 106 days in Akeela House and that he intended for Schwing to serve six months in a correctional facility in addition to the time which Schwing spent in Akeela House. We have reviewed the sentencing proceeding and agree with the state on this point. We further find that Judge Rowland's intention was adequately communicated to the defendant. We therefore find that Judge Rowland did not fail to give Schwing credit for the time which he served in Akeela House and that he did not err in denying Schwing's motion to correct his sentence.[2]
RESTITUTION
The trial court also ordered Schwing to pay restitution in the amount of $2,800 to reimburse the state of Alaska for all of the money which he received from the police informant to whom he sold cocaine. Apparently the $2,800 represents the money which Schwing received for all five cocaine sales; both Schwing and the state agree he received only $800 on the two counts for which he was convicted. Schwing argues that under AS 12.55.100(a)(2) he can only be required to make restitution for the money which he received on the two cocaine sales for which he was ultimately convicted. AS 12.55.100(a)(2) reads as follows:
Conditions of Probation.
(a) While on probation and among the conditions of probation, the defendant may be required ...
(2) to make restitution or reparation to aggrieved parties for actual damages or loss caused by the crime for which conviction was had. [Emphasis supplied.]
The state has confessed error and agrees with Schwing that under the statute he can *314 only be required to pay as restitution the $800 he received for the two counts which resulted in conviction. We have independently reviewed this issue "to insure that the error confessed is supported by the record on appeal and has legal foundation," as we are required to do under Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). We believe that the state's confession of error is appropriate given the plain language of the statute. We therefore hold that the amount of restitution which Schwing may be required to pay cannot exceed the actual loss caused by the two sales of cocaine for which he was convicted.
The case is REMANDED for further proceedings.
NOTES
[1] This statute is now codified as AS 12.55.025(c), which reads in part:
A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed.
[2] The state also argues that the rationale of the Lock case does not apply to Schwing because in his case sentence was never imposed. AS 12.55.080(a), the statute under which Schwing was placed on probation, provides that the trial judge may "suspend the imposition of sentence ... and shall place the person on probation." The statute also provides that in the event the person violates his probation "the court may pronounce sentence." AS 12.55.085(c). Thus, the state contends Schwing has never been sentenced under the terms of AS 12.55.085. Since former AS 11.05.040(a) applies to a "person who is sentenced" and AS 12.55.025(c) has similar language, the state contends those statutes and the Lock rationale do not require a defendant automatically to be given credit for time formerly served. We do not decide this issue since it is not necessary in order to dispose of the case before us.
| {
"pile_set_name": "FreeLaw"
} |
35 So.3d 38 (2010)
GONCALVES
v.
STATE.
No. 5D08-2220.
District Court of Appeal of Florida, Fifth District.
May 10, 2010.
Decision Without Published Opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
PD-10 94&10 95&10 96-17 PD-1094&1095&1096-17
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/3/2017 12:07 PM
Accepted 10/4/2017 3:50 PM
DEANA WILLIAMSON
No. CLERK
FILED
COURT OF CRIMINAL APPEALS
ANGELA FARMER, § IN THE TEXAS COUKE017
Appellant § OF cmminatj^Wa-l^5™- clerk
§
V. §
§ APPELLATE COURT Nos.
THE STATE OF TEXAS, 02-16-00110-CR,
\<L I
§
Appellee § 02-16-00111-CR .
§ 02-16-00112-CR ro^
APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:
COMES NOW, ANGELA FARMER, Appellant in the above-styled and
numbered causes, by and through her court-appointed attorney of record, Jack V.
Strickland and files this, Appellant's motion for extension of time to file petition for
discretionary review. In support of said motion, Appellant shows as follows:
• 1.
That the Second Court of Appeals affirmed Appellant's judgment in a non-
published memorandum opinion delivered May 25, 2017. A copy of that opinion
i
was received by counsel on May 25,2017. A copy ofboth the judgment and opinion
is attached hereto and marked as "Exhibit A" & "Exhibit B," respectively. In
addition, a motion for rehearing and a motion for en banc consideration were filed
in the Second Court of Appeals on June 9, 2017 and July 31, 2017, respectively.
Both motions were denied and a copy of the orders are attached hereto and marked
as "Exhibit C" (June 29,2017) &"Exhibit D" (August 10,2017), respectively.
That this extension oftime to file Appellant's petition for discretionary
review is not soughtmerely for purposes of delay, but rather in an effort to ensure
justice andto afford Appellant her fundamental rightto appeal her conviction and
sentence. The motion is timely and proper in that it complies with Tex.RApp.Pro.,
R. 10.5(3) & R.68.2(c). Appellant has not previously sought an extension for this
filing. Appellant is incarcerated.
WHEREFORE, PREMISES CONSIDERED, Appellants prays that the
deadline for the filing of her petition for discretionary review be extended for thirty
days from Friday, September 8,2017 to Monday, October 9,2017.
Respectfully Submitted,
/s/ Jack V. Strickland
JACK V. STRICKLAND
State Bar No. 193970000
ATTORNEY FOR DEFENDANT
909 Throckmorton Street
Fort Worth, Texas 76102
Tel: (817)338-1000
Fax: (817)338-1020
[email protected]
COUNSEL FOR APPELLANT
(On Appeal Only)
CERTIFICATE OF CONFERENCE
On October 3, 2017, a telephone conference was held with Assistant District
Attorney Debra Windsor concerning the foregoing motion. Ms. Windsor has no
objection.
/s/ Jack V. Strickland
Jack V. Strickland
CERTIFICATE OF SERVICE
On October3, 2017 a true and correct copy of the foregoing Appellant's first
request for extension of time to file a petition for discretionary reviewwas
forwarded to:
1. Angela farmer, Jr.
TDCJ# 02056021
Hobby Unit
742 FM 712
Marlin, Texas 76661
2. Debra A. Windsor
Assistant District Attorney
401 W.Belknap St
Fort Worth, Texas 76196
/s/Jack V.Strickland
Jack V. Strickland
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00110-CR
Angela D. Farmer § From Criminal District Court No. 2
§ of Tarrant County (1418882D)
v. § May 25,2017
§ Opinion by Justice Gabriel
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court's judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
Bv /s/ Lee Gabriel
Justice Lee Gabriel
SOflHT-^
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00110-CR
NO. 02-16-00111 -CR
NO. 02-16-00112-CR
ANGELA D. FARMER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NOS. 1418882D, 1418885D, 1418887D
MEMORANDUM OPINION1
In this consolidated appeal, Appellant Angela D. Farmer appeals from her
conviction of two first-degree felony counts of possession of a controlled
substance with intent to deliver and one third-degree felony count of evading
1SeeTex. R. App. P. 47.4.
arrest or detention with a vehicle, arguing in two issues that the evidence is
insufficient to support her possession convictions and that she received
ineffective assistance of counsel during trial. We affirm.
I. BACKGROUND
On June 22, 2015, two undercover police officers assigned to the Fort
Worth Police Department's narcotics division parked their unmarked vehicle near
1015 East Morphy Street in Fort Worth as part of an investigation into possible
narcotics activity at that location. The officers observed a couple of individuals
lingering around a Honda Accord that was sitting in the residence's driveway who
appeared to be on the lookout for law enforcement. So the officers decided to
send in a confidential informant to attempt a drug buy. The informant walked up
to the driver's side of the Honda, leaned inside, purchased some illegal narcotics,
and walked back to the undercover officers' vehicle. The undercover officers
then radioed two uniformed officers, William Snow and Emilio Chavez, to report
what had occurred and asked them to make the scene, detain the Honda's
driver, and continue the investigation.
It took Officers Snow and Chavez about five minutes to arrive, and in the
meantime, the undercover officers saw a vehicle pull into the driveway, conduct
what appeared to be another drug transaction with the driver of the Honda, and
then leave. When Officers Snow and Chavez arrived, they noticed the Honda
backed into the driveway with someone seated in the driver's seat and two men
lingering outside of the Honda—one near the driver's side door and one on the
porch of the residence. Officer Snow got out of his vehicle and began walking
toward the Honda, and as soon as he did so, the man who was standing near the
Honda began to walk away. Officer Chavez walked over to that man while
Officer Snow continued to the driver's side door of the Honda. The window was
rolled down, and Farmer, the car's sole occupant, was seated in the driver's seat.
Officer Snow looked inside the Honda and saw a sandwich bag that was
filled with pills sitting in the center console where the cup holders would be.
Based upon his training and experience, he believed the pills contained heroin
and cocaine. While he was at the driver's side window, Farmer put the Honda in
drive and sped away, striking Officer Snow in the hand and leg with her car in the
process. Farmer raced to a nearby alley, got out of her car, and continued
fleeing on foot. With the assistance of the undercover officers, Officers Snow
and Chavez located Farmer's vehicle in the alley, pulled in behind it, and ran
after her. The officers caught up with her and attempted to arrest her, but she
resisted, requiring Officer Chavez to deploy his Taser. Officers Snow and
Chavez were ultimately able to arrest her.
After Farmer had been arrested, one of the undercover officers searched
her abandoned car. Inside he found the following items:
• A Mentos candy bottle,1 located in the map pocket of the driver
door, filled with somej capsules that contained cocaine and
some that contained heroin;
i
• A shaving kit located on the front passenger seat that
contained individual baggies and a digital scale;
• A bag of hypodermic needles located in the handle of the
driver door; and
• Farmer's Texas identification card.
The officers did not, however, find the pill-filled sandwich bag that Officer Snow
had seen earlier.
In separate causes, a jury convicted Farmer of possession of a controlled
substance—cocaine—with intent to deliver (Cause No. 1418882D), see Tex.
Health & Safety Code Ann. § 481.112(a), (d) (West 2010); of possession of a
controlled substance—heroin—with intent to deliver (Cause No. 1418885D), see
id.; and of evading arrest or detention with a vehicle (Cause No. 1418887D), see
Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West 2016). The jury assessed her
punishment at twenty years' confinement for each possession offense and five
years' confinement for the evading-arrest offense. The trial judge sentenced her
accordingly, ordering the three sentences to run concurrently. Farmer now
appeals.
II. SUFFICIENCY OF THE EVIDENCE
In her first issue, Farmer contends that the evidence is insufficient to
support either of her possession convictions.
In reviewing the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the verdict to 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, 319,
99 S. Ct. 2781, 2789 (1979); Jenkins V. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016). In order to convict Farmer of possession of a controlled substance
with intent to deliver, the State had to prove beyond a reasonable doubt that she
(1) exercised actual care, custody, control, or management over a controlled
substance, (2) intended to deliver the controlled substance to another, and
(3) knew that the substance in her possession was a controlled substance. Tex.
Health & Safety Code Ann. § 481.002(38) (West Supp. 2016), § 481.112(a);
Cadoree v. State, 331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011,
pet refd).
Farmer principally attacks the sufficiency of the evidence to support the
first element—that she exercised care, custody, control, or management over a
controlled substance—and she does so by pointing to the alleged lack of direct
evidence that she personally possessed the heroin or cocaine the officers found
in the Honda. However, the State was not required to prove this element—or,
indeed, any element—of Farmer's possession offenses with direct evidence; it
has long been the law that a conviction for a criminal offense can be based on
circumstantial evidence alone, and the standard of review for a circumstantial-
evidence case is the same as for a direct-evidence case. Nowlin v. State,
473 S.W.3d 312, 317 (Tex. Crim. App. 2015). While evidence leading to a strong
suspicion or mere probability of guilt is insufficient to support a conviction, if the
i
inferences made by the factfinder are reasonable in light of "the cumulative force
of all the evidence when considered in the light most favorable to the verdict," the
5
conviction will be upheld. Id. (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012)).
Here, the jury heard evidence of the following:
• 1015 East Morphy Street was located in a neighborhood with
high narcotics activity.
• During the course of an unrelated narcotics investigation, an
undercover narcotics officer twice personally observed activity at
1015 East Morphy Street that was consistent with illegal narcotics
activity. The officer also received an independent report of
suspected narcotics activity at that location from a neighborhood
patrol officer.
• Undercover officers surveyed 1015 East Morphy Street and saw
two individuals near Farmer's Honda who appeared to be acting
as lookouts for law enforcement.
• A confidential informant purchased illegal narcotics from the
person seated in the Honda's driver's seat.
• Before uniformed officers arrived, the undercover officers
witnessed what they concluded was another person buying drugs
from the person in the Honda.
• When Officer Snow approached the Honda, Farmer was the sole
occupant, and she was seated in the driver's seat.
• Officer Snow saw a sandwich bag filled with pills in the Honda's
center console.
While Officer Snow was standing near her car, Farmer sped off in
an attempt to flee from the officers.
A search of the Honda revealed a Mentos candy bottle, located in
the map pocket of the Idriver door, filled with capsules that
contained cocaine and he'roin; a shaving kit located on the front
passenger seat that contained individual baggies and a digital
scale; a bag of hypodermic needles located in the handle of the
driver door; and Farmer's Texas identification card.
v_
• One of the undercover officers testified that the baggies inside
the shaving kit were the kind that were usually used to package
smaller amounts of narcotics and matched the baggie that held
the narcotics the confidential informant had purchased from
Farmer. He also testified that the digital scale inside the shaving
kit was a kind that was commonly used to weigh out smaller
amounts of narcotics to sell.
We conclude that, viewed in the light most favorable to the jury's verdict, the
above evidence and the reasonable inferences drawn from it are sufficient to
support a jury finding beyond a reasonable doubt that Farmer (1) exercised
actual care, custody, control, or management over the heroin and cocaine
discovered in her vehicle, (2) intended to deliver the heroin and cocaine to
another, and (3) knew that the heroin and cocaine in her possession were
controlled substances. See Tex. Health & Safety Code Ann. §§ 481.002(36),
.112(a); Cadoree, 331 S.W.3d at 524. We overrule Farmer's first issue.
III. INEFFECTIVE ASSISTANCE
In her second issue, Farmer argues that she received ineffective
assistance of trial counsel in violation of the federal and state constitutions. She
was originally appointed counsel, but on March 7, 2016—the day before trial—
her retained counsel filed a letter of representation stating that he represented
her. Farmer contends that her retained counsel rendered ineffective assistance
as demonstrated by several alleged deficiencies in his performance at trial, but
she focuses primarily on her retained counsel's entry into the case less than
twenty-four hours before trial, arguing that such a late entry into the case meant
that he could not and did not have an adequate amount of time to prepare for
trial. Farmer acknowledges the familiar proposition that direct appeal is usually
an inadequate vehicle for raising an ineffective-assistance claim, e.g., Menefield
v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012), but she contends that
this appeal is one.of the rare instances in which we can address such a claim on
direct appeal because her counsel's ineffectiveness is apparent from the record,
see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that her counsel's representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d
289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be "firmly
founded in the record," and "the record must affirmatively demonstrate" the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). An appellant's failure to satisfy one prong of the Strickland
test negates a court's need to consider the other prong. Williams v. State,
301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the deficient-performance
prong, we look to the totality of the representation and the particular
circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether
counsel's assistance was reasonable under all the circumstances and prevailing
professional norms at the time of the alleged error. See Strickland, 466 U.S. at
8
688-89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of counsel's
representation is highly deferential, and the reviewing court indulges a strong
presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-
08. It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel's reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
"should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel is not
given that opportunity, we should not conclude that counsel's performance was
deficient unless the challenged conduct was "so outrageous that no competent
attorney would have engaged in it." Nava, 415 S.W.3d at 308.
To the extent Farmer argues that her counsel's appearance in her case
less than a day before trial establishes that she received ineffective assistance of
counsel, we conclude otherwise. The record is not only silent as to the reasons
why Farmer's counsel did not appear in her case sooner, but it affirmatively
reflects that she wanted to proceed to trial with her counsel despite his late entry
into her case. Before the jury was seated, Farmer testified that her counsel had
explained to her what was going on with her case. Her counsel then asked, "And
i
even though I've just been hired, you decided you want me to stay on your case;
!
is that correct?" Farmer replied, "Yes, sir." She also testified that her counsel
had conveyed to her a plea offer from the State and that she had rejected that
offer. She acknowledged that it was her decision to reject the State's offer and
that she decided that she wanted to proceed to trial. Because the record is silent
as to why Farmer's counsel did not appear in her case until the day before trial,
and given Farmer's affirmative decision to proceed with her counsel despite that
fact, we cannot conclude that her counsel's late entry into this case is sufficient to
establish the deficient-performance prong of the Strickland test. See 466 U.S. at
687,104 S. Ct. at 2064; Nava, 415 S.W.3d at 307.
Farmer also complains of her counsel's "truncated and superficiar voir dire
examination of the jury panel; failure to call any witnesses; minimal cross-
examination of the State's witnesses; minimal objections to the testimony of the
State's witnesses and the State's exhibits; inadequate offer of proof regarding
her decision not to testify; and failure to object to the trial court's proposed jury
charge or tender any requested special charges. She contends that all of this
conduct establishes her ineffective-assistance claim. However, the record is
silent regarding the reasons why Farmer's counsel conducted himself the way he
did on all of these matters. See Menefield, 363 S.W.3d at 593. And we cannot
say that the conduct described above was "so outrageous that no competent
attorney would have engaged in it." See id. Thus, we cannot conclude that this
conduct is sufficient to establish the deficient-performance prong of the Strickland
test. See id. (holding that where the reasons for counsel's conduct do not appear
j
in the record, "the appellate court should not find deficient performance unless
the challenged conduct was 'so outrageous that no competent attorney would
10
have engaged in it."' (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005))).
We hold that Farmer has not met her burden to satisfy the first prong of the
Strickland test—to establish that her retained counsel's representation was
deficient. See 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307.
Having so concluded, we need not address the second prong of the Strickland
test. See Williams, 301 S.W.3d at 687. We overrule Farmer's second issue.
IV. CONCLUSION
Having overruled Farmer's issues, we affirm the trial court's judgments.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 25, 2017
11
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-16-00110-CR
02-16-00111-CR
02-16-00112-CR
ANGELA D. FARMER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1418882D, 1418885D, 1418887D
ORDER
We have considered "Appellant's Motion For Rehearing."
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of May 25, 2017 stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
SIGNED June 29, 2017.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ. mrrsC
MEIER. J. would grant.
v~
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-16-00110-CR
02-16-00111-CR
02-16-00112-CR
ANGELA D. FARMER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1418882D, 1418885D, 1418887D
ORDER
We have considered "Appellant's Motion For Reconsideration En Banc."
It is the opinion of the court that the motion for reconsideration en banc
should be and is hereby denied and that the opinion and judgment of May 25,
2017 stand unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
SIGNED August 10, 2017.
s&jbitJ)
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
EN BANC
| {
"pile_set_name": "FreeLaw"
} |
Case: 17-60350 Document: 00514146078 Page: 1 Date Filed: 09/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60350 FILED
Summary Calendar September 7, 2017
Lyle W. Cayce
Clerk
ALLEN R. BLAIR,
Plaintiff - Appellant
v.
YUM BRANDS; TACO BELL,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:15-CV-400
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Allen Blair appeals the district court’s judgment against him on his
claims stemming from his employment at a Mississippi Taco Bell. He alleges
that Defendants violated the Thirteenth Amendment and his right to free
speech. Construed liberally, he also alleged violations of state wage laws and
the Fair Labor Standards Act and referenced the Fourteenth Amendment and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-60350 Document: 00514146078 Page: 2 Date Filed: 09/07/2017
No. 17-60350
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., in his
summary judgment briefing.
We have carefully reviewed the district court’s memorandum opinion
and order and the parties’ briefs in light of the pertinent portions of the record.
We AFFIRM for substantially the same reasons given by the district court.
2
| {
"pile_set_name": "FreeLaw"
} |
Filed 4/6/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re JORGE D., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
G051403
Plaintiff and Respondent,
(Super. Ct. No. DL043057)
v.
OPINION
JORGE D.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Richard Y.
Lee, Judge. Reversed.
Forest M. Wilkerson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton,
Christopher P. Beesley, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff
and Respondent.
Jorge D. appeals from the dispositional order declaring him a ward of the
court (Welf. & Inst. Code, § 602), after the juvenile court found true the allegations he
was publicly intoxicated and was a minor in possession of tobacco. Jorge argues the
following: (1) there was insufficient evidence he was publicly intoxicated and the
detaining officer did not comply with Penal Code section 647, subdivision (g) (all further
statutory references are to the Pen. Code, unless otherwise indicated); and (2) there was
insufficient evidence he was a minor in possession of tobacco because a lighter is not
punishable under section 308, subdivision (b). We agree with Jorge that the detaining
officer did not comply with section 647, subdivision (g), and that possession of a lighter
is not punishable under section 308, subdivision (b). Therefore, we reverse the order.
FACTS
A petition alleged 17-year-old Jorge committed public intoxication, a
misdemeanor (§ 647, subd. (f)-count 1), and minor in possession of tobacco, an infraction
(§ 308, subd. (b)-count 2). At the contested jurisdictional hearing, Officer Robert Perez,
an officer with nearly 10 years of experience, testified concerning his encounter with
Jorge. Perez was on patrol one evening about 8:30 p.m., when he received a call
regarding suspicious individuals around 1602 West Saint Andrew’s Place. When he
arrived, Perez saw one person sitting inside a car and three people standing in a group.
Perez approached Jorge who was part of the group. Based on his training and experience,
Perez observed physical signs Jorge was intoxicated. He noticed Jorge could not speak
clearly and his speech was “mumbled, argumentative, and somewhat incoherent.” In
addition, Jorge had “bloodshot, watery eyes.” Jorge was not related to any of the adults
present. Perez concluded Jorge was intoxicated. Because Perez believed Jorge posed a
danger to himself and was unable to safely walk home alone, Perez arrested Jorge. In
searching Jorge during the arrest, Perez found a purple, Bic brand lighter.
On cross-examination, Perez testified he drove Jorge home and dropped
him off with his mother. Perez admitted he did not place him in civil protective custody
2
for 72 hours and was not aware of a statute that required him to do so. On redirect
examination, Perez testified that if a minor commits a felony he transports the minor to
the police station for processing, but if the minor commits a misdemeanor, he will issue
the minor a citation and either release the minor or drive the minor home if he feels it is
unsafe for the minor to walk home.
After the prosecution rested, Jorge moved to dismiss count 1 pursuant to
Welfare and Institutions Code section 701.1. Counsel argued there was insufficient
evidence Jorge was publicly intoxicated and Perez failed to place Jorge in civil protective
custody as required by section 647, subdivision (g). The juvenile court recessed to
review People v. Ambellas (1978) 85 Cal.App.3d Supp. 24 (Ambellas).1 When back on
the record, the court commented “there wasn’t a whole lot of evidence” but viewed
cumulatively there was sufficient evidence Jorge was publicly intoxicated. Additionally,
the court opined section 647, subdivision (g), was not a bar to delinquency proceedings.
The court denied Jorge’s motion to dismiss count 1.
Jorge’s mother testified she had previously seen him under the influence of
alcohol and he did not appear to be intoxicated when Perez dropped him off at home.
The juvenile court found counts 1 and 2 to be true beyond a reasonable
doubt. At the dispositional hearing, the juvenile court declared Jorge a ward of the court
and stated the maximum term of confinement was six months. The court placed him on
probation with various terms and conditions and ordered him to complete 40 hours of
community service.
1 In People v. Kellogg (2004) 119 Cal.App.4th 593, 596, 604 (Kellogg), the
court rejected defendant’s contention section 647 punishes the condition of being a
homeless, chronic alcoholic in violation of the Eighth Amendment. In doing so, the
Kellogg court briefly discussed Ambellas, supra, 85 Cal.App.3d Supp. 24, and its
alternatives to penal sanctions. (Kellogg, supra, 119 Cal.App.4th at pp. 605-606.)
3
DISCUSSION
I. Section 647
Jorge argues there was insufficient evidence Perez complied with
section 647, subdivision (g), and that he was unable to care for himself. Because we
agree with the former, we need not address the latter.
Section 647, subdivision (f), makes it a misdemeanor to be intoxicated in
public. Section 647, subdivision (g), states the following: “When a person has violated
[section 647,] subdivision (f), a peace officer, if he or she is reasonably able to do so,
shall place the person, or cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to [s]ection 5170 of the Welfare
and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace
officer may place a person in civil protective custody with that kind and degree of force
which would be lawful were he or she effecting an arrest for a misdemeanor without a
warrant. A person who has been placed in civil protective custody shall not thereafter be
subject to any criminal prosecution or juvenile court proceeding based on the facts giving
rise to this placement.” (Italics added.)
Section 647, subdivision (g), provides the subdivision does not apply to the
following: “(1) Any person who is under the influence of any drug, or under the
combined influence of intoxicating liquor and any drug. [¶] (2) Any person who a peace
officer has probable cause to believe has committed any felony, or who has committed
any misdemeanor in addition to [section 647,] subdivision (f). [¶] (3) Any person who a
peace officer in good faith believes will attempt escape or will be unreasonably difficult
for medical personnel to control.”
There is not much published case law interpreting section 647,
subdivision (g). In Ambellas, supra, 85 Cal.App.3d Supp. at page 27, the court addressed
the relationship between section 647, subdivision (f), and section 647, subdivision (ff),
which was later amended to be section 647, subdivision (g), without substantive change
4
and which we will hereafter refer to as subdivision (g) (Stats. 1998, ch. 758, § 1, p. 4968).
The court described subdivision (g), as “an alternative to criminal prosecution or juvenile
court proceedings for persons arrested for violating subdivision (f).” (Ambellas, supra,
85 Cal.App.3d Supp. at p. 27, fn. omitted.) The court explained subdivision (g),
“requires a peace officer who is reasonably able to do so to place a subdivision (f)
arrestee in ‘civil protective custody’ in a detoxification center[]” and that person is not
subject to criminal prosecution or juvenile court proceedings. (Ambellas, supra,
85 Cal.App.3d Supp. at p. 30.) The Ambellas court first concluded subdivision (g), was
not an element of the offense of subdivision (f). (Ambellas, supra, 85 Cal.App.3d Supp.
at pp. 30-31.) Relying on the use of the word “shall,” the court opined subdivision (g),
was a defense and “the [prosecution’s] failure to follow the proscribed procedure
constitutes a basis for challenging the subsequent criminal prosecution. [Citation.]”
(Ambellas, supra, 85 Cal.App.3d Supp. at p. 32.)
The Ambellas court turned to the procedural details of the defense and
placed the onus on defendant to initially raise subdivision (g), as a defense and stated as
follows: “[W]e hold that when a defendant suggests that the [prosecution]’s failure to
comply with subdivision ([g]) should result in his acquittal, the burden shifts to the
[prosecution] to produce evidence of the reasons for the failure. Once that evidence has
been presented the defendant is, of course, free to present other relevant evidence of his
own on the issue. And, since the defense is one allowed for reasons extraneous to the
guilt or innocence of the defendant [citation] the ultimate burden remains on the
defendant to persuade the trier of fact by a preponderance of the evidence that the defense
is well taken.” (Ambellas, supra, 85 Cal.App.3d Supp. at p. 34.)
The Ambellas court discussed the factors that may be considered in
determining whether an officer reasonably complied with subdivision (g). (Ambellas,
supra, 85 Cal.App.3d Supp. at pp. 34-36.) The court stated some of the factors are the
following: distance to the nearest detoxification facility; availability of bed space at
5
detoxification facility; the arrestee’s disposition and willingness to cooperate; and police
department resources to transfer the arrestee to facility. (Id. at pp. 36-37.)
Finally, the Ambellas court addressed defendant’s three violations of
subdivision (f), two of which were before the court by way of a habeas corpus petition
and one of which was before the court by way of an appeal. (Ambellas, supra,
85 Cal.App.3d Supp. at p. 28.) The court discharged the habeas corpus petition because
there was evidence to support the conclusion defendant was difficult to control and thus
civil commitment was inappropriate. (Id. at p. 40.) With respect to the appeal, the court
reversed defendant’s conviction because the prosecution failed to present evidence
establishing the arresting officer was unable to comply with subdivision (g). (Ambellas,
supra, 85 Cal.App.3d Supp. at pp. 40-43.)
In Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 940 (Stout), a
police officer stopped plaintiff and questioned him about his sobriety while walking on a
major street at 1:30 a.m. After the officer allowed plaintiff to leave, plaintiff was
subsequently struck by a vehicle and injured. Plaintiff sued the city, alleging the city and
officer were liable for his injuries because the officer failed to arrest him or take him to a
facility described in section 647, subdivision (g). The trial court sustained the city’s
demurrer without leave to amend. (Stout, supra, 148 Cal.App.3d at pp. 940-941.) The
Stout court affirmed, noting case law had interpreted other statutes’ use of “shall” as
directory rather than mandatory and there was no “simple, mechanical test for
determining” its meaning. (Id. at p. 947, fn. 5.) The court held subdivision (g), did not
require the police to take a “public inebriate” into custody; instead, it simply gave
officers the option to offer treatment to an arrestee, rather than to prosecute him. (Id. at
pp. 946-947.) The court added though that if subdivision (g), created a mandatory duty
of some kind, that duty was solely “to . . . make a reasonable decision concerning the
appropriate disposition of a lawfully arrested drunk.” (Id. at p. 947.)
6
Here, the Attorney General concedes “[a] strict application of Ambellas
would suggest, as [Jorge] argues, that reversal of the public intoxication finding is
warranted.” However, the Attorney General cites to the following language from Stout,
supra, 148 Cal.App.3d at pages 946-947, to argue we should affirm Jorge’s conviction
for count 1 because Perez acted reasonably in taking Jorge home: “Assuming the
mandatory effect accorded to the statute by Ambellas places a duty on the arresting
officer, as opposed to a condition precedent to a criminal prosecution [citation], the duty
is to only make a reasonable decision concerning the appropriate disposition of a
lawfully arrested drunk.” (Italics added, fn. omitted.)
We agree with the Attorney General that Ambellas provides authority for
reversing Jorge’s conviction for count 1. Subdivision (g), contemplates it applies to both
criminal prosecutions and juvenile court proceedings. (§ 647, subd. (g) [“A person who
has been placed in civil protective custody shall not thereafter be subject to any criminal
prosecution or juvenile court proceeding based on the facts giving rise to this
placement”].) Like in Ambellas, supra, 85 Cal.App.3d Supp. at page 29, where there was
“[n]o evidence . . . with respect to any efforts by the officer who arrested [defendant] to
comply with subdivision ([g])[,]” here there was no evidence Perez made any efforts to
comply with subdivision (g). Indeed, Perez testified he was unaware of the requirement.
We find the Ambellas court’s reasoning persuasive and adopt it here.
We disagree, however, with the Attorney General that Stout compels a
contrary result. Although the Stout court questioned whether “shall” is mandatory or
directory, the court, in the civil setting, acknowledged that to the extent an officer has a
duty, it extends only to make a “reasonable decision concerning the appropriate
disposition of a lawfully arrested drunk.” For an officer to make a reasonable decision
regarding the proper disposition of a person who is publicly intoxicated contemplates the
arresting officer has knowledge of the available options, i.e., criminal prosecution, civil
commitment (§ 647, subd. (g)), or release (§ 849, subd. (b)(2)). Here, at trial Perez
7
admitted he was unaware of section 647, subdivision (g). We cannot conclude the record
includes evidence Perez made a reasonable decision when he was not fully aware of the
available options.
We acknowledge there is a strong argument Jorge was better served by
Perez taking him home rather than subjecting him to a 72-hour civil commitment. But as
we explain above, the law requires a 72-hour commitment as an alternative to prosecution
unless an officer determines it was unreasonable to place the adult or minor arrestee in a
civil commitment. In addition to the factors articulated in Ambellas, an officer may also
consider whether it better serves the minor to take the minor home and deliver him or her
to the custody of a parent or legal guardian. In making this determination, an officer may
consider the circumstances of the encounter, whether the minor has committed other
offenses, the minor’s intoxication level, the minor’s criminal history, and any other
encounters the officer may have had with the minor. An officer may also consider the
parent’s or legal guardian’s receptiveness and ability to address the intoxication issue.
Here, Perez did not make the required determination under subdivision (g). Because we
conclude Perez’s failure to comply with subdivision (g), was dispositive, we need not
address Jorge’s alternative claim insufficient evidence supported the conclusion he was
unable to care for himself. Thus, we reverse Jorge’s conviction for count 1.
II. Section 308
Jorge contends insufficient evidence supports his conviction for count 2
because a Bic lighter is not designed for smoking tobacco. We agree.
Section 308, subdivision (b), provides as follows: “Every person under the
age of 18 years who purchases, receives, or possesses any tobacco, cigarette, or cigarette
papers, or any other preparation of tobacco, or any other instrument or paraphernalia
that is designed for the smoking of tobacco, products prepared from tobacco, or any
controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars
($75) or 30 hours of community service work.” (Italics added.) Section 308’s purpose
8
“is to prevent minors from smoking or otherwise using tobacco products.” (In re
Tobacco Cases II (2007) 41 Cal.4th 1257, 1273; Wawanesa Mutual Ins. Co. v. Matlock
(1997) 60 Cal.App.4th 583, 587 [section 308’s current purpose to protect minor’s health.)
“We review de novo questions of statutory construction. [Citation.] . . .
‘“[O]ur fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate
the purpose of the statute.’”’ [Citation.]” (People v. Tran (2015) 61 Cal.4th 1160, 1166.)
Section 308 does not explicitly make it illegal for a minor to possess a
lighter. Section 308 makes it a misdemeanor for a minor to possess tobacco, cigarettes,
cigarette papers, other preparations of tobacco, products prepared from tobacco, and
controlled substances. Thus, the issue before us is whether a lighter is included in
section 308’s definition “any other instrument or paraphernalia that is designed for the
smoking of tobacco.” (Italics added.) “Designed” is defined as “done, performed, or
made with purpose and intent often despite an appearance of being accidental,
spontaneous, or natural.” (Webster’s 3d New Internat. Dict. (1981) p. 612.) Section 308
thus makes it a misdemeanor for a minor to possess an instrument or paraphernalia the
purpose or specific use of which is to smoke tobacco. An instrument’s or paraphernalia’s
purpose or specific use which is to smoke tobacco contemplates the instrument or
paraphernalia would hold the tobacco to be smoked. For example, by its plain language
section 308 expressly prohibits a minor from possessing cigarette papers, an instrument
or paraphernalia designed for holding tobacco.
Therefore, we conclude the Legislature intended with section 308 to
prohibit minors from possessing instruments or paraphernalia used to hold tobacco to be
smoked. It did not intend to prohibit minors from possessing lighters. Contrary to the
Attorney General’s claim otherwise, the fact “[c]igarette lighters are commonly used for
lighting and smoking tobacco products” does not mean lighters were “designed for
smoking tobacco.” There are myriad uses for a lighter. That smoking is one of them
does not compel the conclusion it was designed for that purpose.
9
If the California Legislature wished to prohibit minors from possessing
lighters or matches, it is free to do so. (See Health & Saf. Code, § 14941 [defining
cigarette lighter].) In 1991, the Legislature added Health and Safety Code section 14942.
Subdivision (a) of that section charged the State Fire Marshal with adopting regulations
specifying design standards for cigarette lighters that prevent children five and younger
from operating lighters. (Health & Saf. Code, § 14942, subd. (a).) The Legislature is
presumed to know the law. (Mosser Companies v. San Francisco Rent Stabilization &
Arbitration Bd. (2015) 233 Cal.App.4th 505, 514.) We note the Legislature first enacted
section 308 in 1891, and it has amended section 308 many times since then. Before
1988, section 308 prohibited the selling or furnishing of tobacco to minors. In 1988, the
Legislature amended section 308 to prohibit minors from purchasing tobacco. Had the
Legislature also wanted to prohibit minors from possessing lighters, we think it would
have expressly done so.
DISPOSITION
The order is reversed.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
10
| {
"pile_set_name": "FreeLaw"
} |
548 F.2d 1379
Michael D. POULIN, Petitioner-Appellant,v.J. B. GUNN, Warden, Respondent-Appellee.
No. 76-2012.
United States Court of Appeals,Ninth Circuit.
Feb. 24, 1977.As Amended on Denial of Rehearing Feb. 22, 1977.
Michael D. Poulin in pro. per.
Peter R. Silten, Clifford K. Thompson, San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before CHAMBERS and CHOY, Circuit Judges, and BELLONI,* District Judge.
OPINION
PER CURIAM:
1
In his petition for habeas corpus relief, Michael Poulin claims that the incriminating in-court statements to which the bailiff testified were made in confidence to his attorney, and were overheard through the bailiff's eavesdropping. Although the record is bare on this point, if this is true, petitioner's Sixth Amendment rights may have been violated. Weatherford v. Bursey, ----- U.S. -----, ----- - ----- n. 4, 97 S.Ct. 837, 50 L.Ed.2d ----- (1977); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); United States v. Choate, 527 F.2d 748, 751 (9th Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); United States v. Zarzour, 432 F.2d 1, 3 (5th Cir.1970).
2
In this case, it is not possible to say that the bailiff's testimony was harmless beyond a reasonable doubt, Chapman v. California,386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or that there is no "reasonable possibility that the evidence . . . might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). We are also unable to conclude that Poulin "waived" this question by his failure to object to introduction of the testimony at trial. The question is of constitutional dimensions and there is no suggestion that the failure to object amounted to a tactically-inspired, or otherwise deliberate, by-pass of state procedures. Carmical v. Craven, 457 F.2d 582, 584 (9th Cir.1971), cert. denied, 409 U.S. 929, 93 S.Ct. 227, 34 L.Ed.2d 186 (1972). See Henry v. Mississippi, 379 U.S. 443, 449-52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).1
3
Since Poulin's other contentions are wholly lacking in merit, the cause is remanded to the district court for findings on the narrow question whether the bailiff in the California Superior Court improperly or illegally eavesdropped on petitioner and his attorney in court. In addition, the district court should determine whether the communication was indeed made in confidence, or whether petitioner was engaging in courtroom histrionics for the benefit of the jury. For this purpose it should determine whether Poulin's remarks could be heard and gestures seen by the jury or any other persons.
4
If the bailiff improperly overheard the remarks to which he testified, and petitioner's remarks were said in a manner calculated to preserve attorney-client confidentiality, the cause should be remanded to the state courts for a new trial. If petitioner fails to carry the burden of proving his allegations, the district court should deny the petition for habeas corpus.
5
REVERSED AND REMANDED.
*
The Honorable Robert C. Belloni, United States District Judge, for the District of Oregon, sitting by designation
1
The state protests that to overcome a failure to object properly at trial the prisoner must show "cause" for the failure as well as "actual prejudice," calling our attention to Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), which it suggests overruled Fay, Henry and Carmical,supra, sub silentio. But Fransis-as well as its progenitor, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973)-were confined to pretrial objections to grand jury composition. See 425 U.S. at 542, 96 S.Ct. 1708; 411 U.S. at 242, 93 S.Ct. 1577. Moreover, nothing in Francis purports to overrule Fay, sub silentio or otherwise; quite the contrary, the Court cites that prior case with approval. 425 U.S. at 539, 96 S.Ct. 1708
| {
"pile_set_name": "FreeLaw"
} |
540 U.S. 904
BURKSv.HALL, WARDEN.
No. 03-5357.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied.
| {
"pile_set_name": "FreeLaw"
} |
643 S.E.2d 644 (2007)
In the Matter of B.M., A Juvenile.
No. COA06-844.
Court of Appeals of North Carolina.
May 1, 2007.
Elizabeth Kennedy-Gurnee, Fayetteville, for Cumberland County Department of Social Services petitioner appellee.
Attorney Advocate Beth A. Hall, Guardian ad Litem Attorney Advocate, Fayetteville, for respondent-father appellee.
Katharine Chester for respondent-mother appellant.
Janet K. Ledbetter for respondent-father appellant.
McCULLOUGH, Judge.
Respondents appeal an adjudication and disposition order finding B.M. to be a dependent and neglected juvenile, ceasing reunification efforts and establishing the permanent plan as adoption. We remand the case for failure to enter adequate findings.
On 20 September 2004, the Cumberland County Department of Social Services ("DSS") filed a juvenile petition alleging that B.M., nine days old, was a dependent and neglected juvenile. A non-secure custody order was thereafter entered placing custody of B.M. in DSS.
After multiple continuances, hearings were held on the juvenile petition on 9 and 11 January 2006. The evidence presented at the hearing tended to show the following:
Respondents are the biological parents of B.M. At the time of B.M.'s birth, respondent-mother indicated to medical personnel that she had used cocaine prior to B.M.'s birth. Respondent-mother further admitted at the hearing to using cocaine for at least two months before B.M. was born. At the time of B.M's birth, the juvenile tested positive for cocaine. Wanda Nunnery, a DSS investigator, testified that, after the birth of B.M., she had respondent-mother sign a Safety Assessment Plan, but after learning of domestic violence between respondents, determined that she needed a more extensive plan to ensure the safety of B.M. Respondent-mother was asked to sign a subsequent safety plan in which she would agree that she and B.M. would stay at her mother's house until an investigation could be completed with regard to reported domestic violence and drug use, but respondent-mother refused to sign the Safety Assessment Plan. Due to the refusal and DSS's inability to ensure the safety of B.M., the juvenile petition was filed.
On 31 January 2006, the lower court entered an adjudication and disposition order finding and concluding that B.M was a neglected and dependent juvenile, ceasing reunification efforts and establishing the permanent plan as adoption. From this order respondents appeal.
Respondents contend on appeal that the lower court erred in failing to hold a timely hearing as required under N.C. Gen. Stat. § 7B-801 and N.C. Gen.Stat. § 7B-803. We hold that respondents have failed to show prejudice as a result of any delay.
N.C. Gen.Stat. § 7B-801 states that an adjudicatory hearing shall be held no later than 60 days from the filing of the juvenile petition unless the judge orders that it be held at a later time pursuant to N.C. Gen. Stat. § 7B-803. N.C. Gen.Stat. § 7B-801(c) (2005). Under N.C. Gen.Stat. § 7B-803 a judge may order a continuance in an abuse, neglect or dependency case "for good cause, . . . for as long as is reasonably required to receive additional evidence, reports, or assessments *646 that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery." N.C. Gen.Stat. § 7B-803 (2005). The statute further permits a continuance "in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile." Id.
Chapter 7B of the North Carolina General Statutes governs hearings concerning abuse, neglect and dependency and further sets forth rules and procedures for the termination of parental rights. N.C. Gen.Stat. § 7B-907 and § 7B-1109 set forth the governing rules for hearings to terminate parental rights and parallel those set forth for abuse, neglect and dependency proceedings. N.C. Gen.Stat. § 7B-907 requires a hearing on the termination of parental rights to be held within 60 days from the date of the permanency planning hearing but further allows the court to hold a hearing outside of this time limit. N.C. Gen.Stat. § 7B-907(e) (2005). N.C. Gen.Stat. § 7B-1109 further states that a hearing to terminate parental rights may be held outside of the aforementioned time period "in extraordinary circumstances" as long as the extension is in the best interests of the juvenile. N.C. Gen.Stat. § 7B-1109(a) and (d) (2005). Where the statutes applicable in the instant case are similar in nature to those governing hearings to terminate parental rights, we hold that the same analysis for determining error based on lack of timeliness should apply.
In reviewing the issue of timeliness with respect to hearings on the termination of parental rights, our Courts have held that an appellant must show prejudice resulting from the delay and that the mere passage of time alone is not enough to show prejudice. In re S.N.H. and L.J.H., 177 N.C.App. 82, 627 S.E.2d 510 (2006).
In the instant case the adjudication hearing was held outside of the time requirements set forth under the governing statute. The presiding judge entered numerous continuances between the filing of the juvenile petition and the adjudication hearing. Respondents in this case fail to show how they were prejudiced by the delay.
Further, it is important to note that a stark distinction must be drawn between the focus of hearings on the adjudication and disposition of a juvenile and hearings on the termination of parental rights. At the adjudication and dispositional stage it is the status of the juvenile that is at issue rather than the status of a parent. By determining that a juvenile is abused, neglected or dependent, the court does not alter the rights, duties and obligations of the parent but rather determines the status of the juvenile so that his or her best interests may be ascertained. Where the parental status is not at issue, it is much more difficult for respondents to show how the delay prejudiced the parties.
Moreover, there is no indication anywhere in the record that either respondent ever objected to the continuation of the matter. Therefore, the corresponding assignments of error are overruled.
Respondents further contend that the lower court erred in finding and adjudicating B.M. to be a neglected and dependent juvenile.
"The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen.Stat. § 7B-805 (2005). This Court must determine "(1) whether the findings of fact are supported by `clear and convincing evidence,' and (2) whether the legal conclusions are supported by the findings of fact." In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted). "In a non-jury neglect [and abuse] adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997).
N.C. Gen.Stat. § 7B-101 defines a neglected juvenile as "[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent" or "who lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen.Stat. § 7B-101(15) (2005).
*647 The lower court made the following findings of fact:
8. That both the respondent mother and minor child tested positive for cocaine at the time of the minor's birth.
9. That prior to the birth of the minor child, the respondent mother indicated to medical personnel that she had used cocaine.
. . . .
11. That at the time of the minor child's birth, two of the minor's siblings [D] and [C.B.], were in the care, custody and control of CCDSS, who are the minor children of Anita [W.] and Tracy [B.]
12. That those minor children were in the care of CCDSS for approximately two years.
13. The Court relieved CCDSS of reunification and visitation efforts as to [D] and [C].
14. That the minor children remained in the care, custody and control of CCDSS due to the domestic violence between the respondent parents.
. . . .
18. That there were additional concerns regarding substance abuse issues on the part of the respondent mother.
. . . .
21. That the social worker conducted the initial home investigation with Safety Assessment Plan signed by the respondent mother upon counsel with her supervisor and obtaining full family history [a] Second Safety Assessment Plan was designed to ensure that the respondent mother and minor child would remain at the home of the maternal grandmother, to ensure the safety of the minor child.
22. That the respondent mother refused to sign the Safety Assessment Plan and refused to agree to remain in the home of the maternal grandmother.
. . . .
24. That the Court also considered the other case files for the two siblings of this minor child and the orders in those files.
25. That the domestic violence between the respondent parents is long standing and of enduring nature.
. . . .
29. That the respondent mother had in fact recently ingested cocaine prior to the birth of the minor child.
A review of the transcripts of record from the January hearings reveals that respondent-mother admitted to using cocaine for at least two months prior to the birth of B.M. and that B.M and respondent-mother did in fact test positive for cocaine at the time of B.M.'s birth. Clearly any contention that such findings are not supported is without merit. There was further testimony as to the domestic violence between respondents, respondent-mother's refusal to sign the second Safety Assessment Plan, and refusal to agree to remain in the home of the grandmother to ensure the safety of the child.
Such findings clearly support the court's conclusion that the juvenile was neglected, and therefore this assignment of error is overruled. See In re M.J.G., 168 N.C.App. 638, 647, 608 S.E.2d 813, 818 (2005).
Respondent-father further contends that the lower court erred in failing to make allegations and findings of fact "as to the respondent-appellant father" regarding the neglect and dependency of B.M. However, this contention is without merit.
Our Court has previously stated that the status of the juvenile and not the assignment of culpability is what is at issue at the adjudication and dispositional stage. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984) ("In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.") (emphasis added). The question this Court must look at on review is whether the court made the proper determination in making findings and conclusions as to the status of the juvenile. Therefore this assignment of error is overruled.
A dependent juvenile is defined as one "in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or *648 supervision and lacks an appropriate alternative child care arrangement." N.C. Gen.Stat. § 7B-101(9). In determining whether a juvenile is dependent, "the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005). Findings of fact addressing both prongs must be made before a juvenile may be adjudicated as dependent, and the court's failure to make these findings will result in reversal of the court. In re K.D., ___ N.C.App. ___, ___, 631 S.E.2d 150, 155 (2006).
A review of the adjudication and disposition order entered in the instant case reveals that the court failed to make any findings regarding the availability to the parent of alternative child care arrangements. Where previous case law makes clear that such a finding is required, we must reverse the lower court as to the finding and conclusion that B.M. is a dependent juvenile and remand for entry of findings as to the ability of the parent to provide care or supervision and the availability of alternative child care arrangements.
Where the adjudication of dependency must be reversed and remanded, this Court will not address the remaining assignments of error on appeal.
Accordingly, we remand for entry of additional findings consistent with this opinion.
Reversed and Remanded.
Judge BRYANT concurs.
Judge LEVINSON concurs in result with separate opinion.
LEVINSON, Judge concurring in the result.
I respectfully disagree with the majority opinion's extension of this Court's "prejudice" line of cases that address the untimely entry of orders in juvenile cases to circumstances where an adjudication hearing on a petition alleging neglect and dependency is not held within the time limits established by N.C. Gen.Stat. § 7B-801(c)(2005)(60 days between petition and hearing date unless continued pursuant to the terms set forth in N.C.G.S. § 7B-803(2005)). I recently expressed my disagreement with this Court's current line of cases that utilize generalized, vague notions of "prejudice" to evaluate errors as regards the untimely entry of juvenile court orders. In re J.N.S., ___ N.C.App. ___, 637 S.E.2d 914 (2006)(Levinson, Judge concurring).
Here, respondents do not set forth an argument on appeal that the trial court's orders as regards the continuances pursuant to G.S. § 7B-803 were erroneous. Because the trial court is authorized to continue the hearing on petitions alleging abuse, neglect and dependency beyond sixty (60) days for "good cause," it is only logical that the correctness of its decisions on the continuances is what this Court ought to evaluate. Where the trial court errs by ordering a continuance of the hearing in violation of G.S. § 7B-803, this Court could then determine whether the error impacted the outcome of the hearing the type of appellate review we universally employ.
Respondents assert "prejudice" arising from the delay in reaching the adjudication particularly that they were prevented from making an argument that the child was not neglected sooner, and that everyone was "confused" about the relevant period to evaluate the alleged neglect and dependency. These observations by respondents bear no relationship whatsoever to the validity of the ultimate outcome. Indeed, respondents do not assert that the delay impacted the ultimate legal outcome, and the record on appeal shows little or nothing about why the trial court, on numerous occasions, continued the hearing on the petition. The record is, in fact, devoid of any objections by respondents to the continuances; any motions or actions by respondents during the period of delay to press the trial court to adjudicate the petition; or any suggestion that either respondent sought the assistance of this Court by means of a writ of mandamus to direct the trial court to hold a hearing sooner.
The current "prejudice" analysis this Court purports to utilize where statutory deadlines in the Juvenile Code are not met has no statutory foundation and is legally *649 unsound. See J.N.S., supra. Because the "prejudice" line of cases should not be extended to circumstances where the adjudication hearing is held more than sixty (60) days after the petition is filed in violation of G.S. § 7B-801(c), and because there is no supported challenge on appeal to the continuances ordered by the trial court pursuant to G.S. § 7B-803, respondents' assignment of error related to the delay between the filing of the petition and the hearing date should be rejected.
| {
"pile_set_name": "FreeLaw"
} |
978 F.Supp. 221 (1997)
Carol Lynn LUXFORD, Dennis Roy Luxford
v.
DALKON SHIELD CLAIMANTS TRUST.
Civil Action No. K-96-1383.
United States District Court, D. Maryland.
September 12, 1997.
Michael A. Pretl and Ashcraft & Gerel, Baltimore, MD and H. Robert Erwin, Jr. and The Erwin Law Firm, Baltimore, MD, for Plaintiffs.
Paul F. Strain, Dino S. Sangiamo, Mark D. Maneche and Venable, Baetjer & Howard, LLP, Baltimore, MD, for Defendant.
MEMORANDUM
GRIMM, United States Magistrate Judge.
Plaintiffs have sued the Dalkon Shield Claimants Trust ("Trust") in an effort to recover for personal injuries allegedly sustained from plaintiff Carol Lynn Luxford's use of the Dalkon Shield, an intrauterine device ("IUD") manufactured and sold by the A.H. Robins Company ("Robins"). The case has been referred to me for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c) (1993) and Local Rule 301 *222 (D.Md.1997). Now pending is the Trust's Motion for Summary Judgment, plaintiffs' opposition thereto and the Trust's reply. (Paper Nos. 18, 20 and 21). Having read and considered the papers submitted by the parties, and having heard oral argument on August 18, 1997, the Trust's motion will be granted.
BACKGROUND
In September 1981, Ms. Luxford, an Oregon resident, filed suit against Robins in the United States District Court for the District of Oregon, alleging that use of the Dalkon Shield between September 1971 and May 1977 rendered her infertile. Robins moved to dismiss the case on grounds that the action was barred by an Oregon statute of repose, Or.Rev.Stat. § 30.905, which at that time required that all product liability actions be brought within eight years of the date that the product was purchased. By order dated August 26, 1983, the Oregon district court granted Robins' Motion for Summary Judgment, holding that Ms. Luxford's case was time-barred by Oregon's statute of repose. Ms. Luxford did not appeal.[1]
While the Oregon case was pending, the Luxfords filed an additional lawsuit against Robins in this Court, again alleging that Ms. Luxford had been seriously and permanently injured from use of the Dalkon Shield. Sitting in diversity, on December 20, 1984, the Court (Senior District Judge Northrop) entered summary judgment against the Luxfords, finding that the August 1983 decision by the Oregon district court based upon the state statute of repose was a valid, final adjudication on the merits which was claim preclusive. In re Dalkon Shield Cases, 599 F.Supp. 1351, 1353 (D.Md.1984).
Joined by nearly 50 other Oregon Dalkon Shield claimants whose lawsuits against Robins had also been dismissed by Judge Northrop, the Luxfords noted a timely appeal with the Fourth Circuit. While the case was before the Fourth Circuit, Robins filed a petition for bankruptcy in the United States District Court for the Eastern District of Virginia. All Dalkon Shield litigation, including the plaintiffs' appeal, was consequently stayed.
During the bankruptcy stay, and while the plaintiffs' appeal was pending, Oregon's legislature promulgated a series of laws exempting IUD-related injuries from the eight year state statute of repose (hereinafter referred to as the "Oregon IUD legislation"). The first Act was passed in 1987. 1987 Or. Laws ch.4 §§ 5-10. Sections 5 and 6 of the 1987 Act replaced the eight year repose bar with a two year statute of limitations running from the date of discovery, and made this rule applicable to all cases tried after the Act's effective date. Section 8 of the Act established a one year period for refiling claims that had been dismissed on grounds that they were time-barred under the prior repose statute regardless of when the cause of action accrued, provided the suit was dismissed on or after July 1, 1977. Two years later, the Oregon legislature passed an additional statute which effectively precluded IUD manufacturers from asserting any statutes of limitation or repose defenses. 1989 Or. Laws ch. 642. Section 4 of this Act provided that "[a]ny such action in which final judgment has been entered in favor of the manufacturer based solely on a previous version of the statute of limitations or repose may be refiled within one year of the effective date of this Act." 1989 Or. Laws ch. 642 § 4. Thus, the final change to Oregon's statute of repose was passed, in part, to specifically authorize the reopening of final judgments against IUD plaintiffs whose cases had previously been dismissed as time-barred.
In response to the Oregon IUD legislation, a consent order was entered by the Virginia bankruptcy court under which the refiling periods set forth in the Oregon IUD legislation would be tolled until 30 days after the expiration of the Robins' bankruptcy stay.[2]*223 Robins, however, expressly reserved its right to challenge the constitutionality of this legislation.[3]
On December 15, 1989, Robins emerged from bankruptcy under a Plan of Reorganization which created the Trust.[4] Approximately two years later, the Fourth Circuit mistakenly dismissed the Luxfords' appeal. See Shadburne-Vinton v. Dalkon Shield Claimants Trust, 60 F.3d 1071, 1073 (4th Cir.1995). The Luxfords did not seek reconsideration of the order of dismissal. Instead, on April 1, 1996, they filed another lawsuit against the Trust in the Circuit Court for Baltimore City. The Trust subsequently removed the case to this Court pursuant to 28 U.S.C. § 1452(a) and 28 U.S.C. § 1334(b). I recently denied the plaintiffs' motion to remand the case back to the Maryland state courts. (Paper No. 17). The Trust now moves for summary judgment on the grounds that the 1983 judgment entered against Ms. Luxford by the Oregon federal court bars the plaintiffs' claims.
DISCUSSION
Resolution of the Trust's pending motion requires consideration of two issues. The first issue is whether the 1983 judgment entered against Ms. Luxford is entitled to claim preclusive effect, as the Trust contends.[5] This question was addressed and resolved by this Court in Pottratz v. Davis, 588 F.Supp. 949, 954 (D.Md.1984), and the In re Dalkon Shield Cases, 599 F.Supp. 1351, 1353-54 (D.Md.1984). Plaintiffs do not contest the correctness of these decisions, or otherwise attempt to reargue the issue here, and I am persuaded that the Court's prior resolution of this question remains correct.[6]
The second and more difficult issue and one which appears to be of first impression is whether the retroactive provisions of the Oregon IUD legislation can now, consistent with the Constitution, resurrect the plaintiffs' claims, despite the entry of a valid, final judgment against Ms. Luxford in 1983. Predictably, the plaintiffs urge that it can, and *224 argue that the Fourth Circuit's decision in Shadburne-Vinton v. Dalkon Shield Claimants Trust, 60 F.3d 1071 (4th Cir.1995), says so. The Trust insists, conversely, that the Supreme Court's decision in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), is dispositive, and that retroactive application of the Oregon IUD legislation to revive the plaintiffs' claims in this case is unconstitutional. I am convinced that neither Shadburne nor Plaut squarely address this issue, and that the case turns upon application of the vested rights doctrine under the Fourteenth Amendment's Due Process Clause. The starting point, however, is the Shadburne decision.
A. Shadburne-Vinton v. Dalkon Shield Claimants Trust
Shadburne, like the present case, involved a personal injury suit by an Oregon Dalkon Shield claimant, Susan Shadburne, against Robins. Shadburne originally filed suit in this Court in January 1983. See In re Dalkon Shield Cases, 599 F.Supp. at 1356. Applying the then existing version of Oregon's statute of repose, in December 1984, Judge Northrop granted summary judgment in favor of Robins, holding that Shadburne's claims were time-barred because she had not filed suit within eight years of the insertion of her IUD. Id. Along with a number of other Dalkon Shield plaintiffs, including Ms. Luxford, Shadburne filed an appeal with the Fourth Circuit. Shadburne v. Dalkon Shield Claimants Trust, 851 F.Supp. 712 (D.Md. 1994). As noted, during the pendency of this appeal, Robins entered bankruptcy and the Oregon IUD legislation was passed.
After Shadburne's appeal was erroneously dismissed, see Shadburne-Vinton v. Dalkon Shield Claimants Trust, 60 F.3d 1071, 1073 (4th Cir.1995), upon motion, her case was reinstated in this Court. The Trust thereafter filed a motion for judgment on the pleadings, attacking the constitutionality of those provisions of the Oregon IUD legislation which purported to revive claims extinguished by the prior statute of repose. Shadburne, 851 F.Supp. at 713. During argument on this motion, Judge Kaufman raised the question of whether the Court had jurisdiction to decide this issue in light of the dismissal of Shadburne's appeal. Id. at 713-14. Proceedings consequently were stayed until early 1994, when the Fourth Circuit determined that Shadburne's appeal had been dismissed in error. The Fourth Circuit subsequently recalled its mandate, and remanded Shadburne's case back to the district court. Id. at 714. It is critical to keep in mind the posture of the case at this point. The original suit filed by Shadburne against Robins was, and continuously had been from its inception, pending, and there had never been a final judgment entered against the plaintiff. This distinction is of foremost importance in understanding the difference between Shadburne and the present case.
On remand, Judge Kaufman agreed with the Trust, and held that the Oregon IUD legislation ran afoul of the Fourteenth Amendment's Due Process Clause. In reaching this conclusion, he noted that the Supreme Court had made a distinction between retroactive enlargement of statutes of limitation, which affected only remedies available to the litigants, and statutes of ultimate repose, which affected liability, "upholding the former while refusing to uphold the latter." Id. Moreover, Judge Kaufman found that the Fourth Circuit had embraced the distinction between statutes of limitation, which were procedural, and statutes of repose, which were substantive. Id. at 715. Based upon this precedent, the Court concluded that insofar as the Oregon IUD legislation retroactively enlarged the original statute of repose thereby reviving claims which would otherwise have been time-barred it deprived the defendant of a property interest without due process. Id. at 717. Accordingly, finding that Shadburne's claims were untimely under the Oregon statute of repose, Judge Kaufman granted the Trust's motion on the pleadings. Id. Shadburne appealed.
The Fourth Circuit reversed, concluding that for purposes of analyzing the constitutionality of retroactive legislation, statutes of limitation and statutes of repose were to be treated the same. Shadburne-Vinton v. Dalkon Shield Claimants Trust, 60 F.3d 1071, 1074 (4th Cir.1995). Moreover, the court found that the Supreme Court cases *225 relied upon by Judge Kaufman were outdated, and that based upon more recent Supreme Court precedent, the Due Process Clause allowed "retroactive application of either federal or state statutes as long as the statute serves a legitimate legislative purpose that is furthered by rational means." Id. at 1076. The Oregon IUD legislation met this rational basis test, the Fourth Circuit held, and therefore did not violate due process. Id. at 1077.
B. The Turner Elkhorn Trilogy
The cornerstone of Shadburne is a trilogy of decisions from the Supreme Court which indicate that merely because legislation retroactively upsets a litigant's economic expectations it is not unconstitutional. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984); General Motors Corp. v. Romein, 503 U.S. 181, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992). In reviewing these cases, it is clear that they involved legislative enactments materially dissimilar from the one at issue here legislation which purports to retroactively set aside the final judgment of a court of competent jurisdiction which has finally resolved the rights of the litigants.
In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752, (1976), for example, the Court held that provisions of the Federal Coal Mine Health and Safety Act of 1969 which required that coal mine operators compensate former employees for injuries related to black lung disease, did not offend due process, even though these employees may have terminated work in the mining industry before the Act was passed. The Court stated that:
It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.
Id. at 15, 96 S.Ct. at 2892. The Court added that its cases had made it clear that the mere fact that legislative enactments may have retroactive effect did not make them unconstitutional, and that "legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations." Id. at 16, 96 S.Ct. at 2893.
In the second case, Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), the Court found that application of the withdrawal liability provisions of the Multi-Employer Pension Plan Amendments Act of 1980 to employers who withdrew from pension plans during the five-month period prior to the statute's enactment did not violate the Due Process Clause of the Fifth Amendment. The Court observed that, analogous to the legislation in Turner Elkhorn, the legislation here focused on matters of national economic policy, for which the courts had traditionally afforded the enacting legislative body "strong deference." Id. at 729, 104 S.Ct. at 2717-18. The Court consequently concluded that if such legislation is supported by a legitimate legislative purpose, furthered by a rational means, it does not offend due process, even if it readjusts rights and burdens and upsets otherwise settled expectations.Id.[7]
*226 Finally, in General Motors Corporation v. Romein, 503 U.S. 181, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992), the Court held that a Michigan statute which had the effect of requiring General Motors to repay workers' compensation benefits which that company had withheld in reliance on an earlier version of the workers' compensation law did not violate the Contract Clause or the Due Process Clause. Although retroactive legislation can have the effect of interfering with "closed transactions," the Court noted, this result is not alone sufficient to render the law unconstitutional, provided it serves a legitimate legislative purpose which it furthers by a rational means. Id. at 191, 112 S.Ct. at 1112.
Consequently, the Turner Elkhorn trilogy of cases relied upon by the Fourth Circuit in Shadburne did not address the constitutionality of legislative enactments which were passed for the very purpose of setting aside final judgments previously issued by courts of competent jurisdiction. Indeed, in Shadburne, this was not an issue as Shadburne's case was pending on appeal when the Oregon IUD legislation was passed, and thus, a final judgment had not been entered. The distinction is critical. As next will be seen, there is an equally venerable line of cases which hold that once the rights and liabilities of a litigant have been established by the final judgment of a court of competent jurisdiction, that judgment vests property rights in the prevailing party, and legislative enactments passed thereafter which attempt to retroactively invalidate these judgments are unconstitutional.
C. The Vested Rights Doctrine
The "vested rights doctrine" or "adjudicated rights doctrine" "recognizes that rights fixed by judgment are, in essence, a form of property over which legislatures have no greater power than any other." Georgia Association of Retarded Citizens v. McDaniel, 855 F.2d 805 at 810 (11th Cir.1988). The doctrine's origin is commonly traced to the Supreme Court's decision nearly a century ago in McCullough v. Commonwealth of Virginia, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382 (1898). There the Court struck down as unconstitutional an act by the General Assembly of Virginia repealing earlier legislation which gave commonwealth taxpayers final judgments in the form of tax refunds. The Court stated:
At the time the judgment was rendered in the circuit court of the City of Norfolk the act of 1882 was in force, and the judgment was rightfully entered under the authority of that act. The writ of error to the court of appeals of the state brought the validity of that judgment into review, and the question presented to the court was whether, at the time it was rendered, it was rightful or not. If rightful, the plaintiff therein had a vested right, which no state legislation could disturb. It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb rights created thereby ceases.
Id. at 123-24, 19 S.Ct. at 142. See also Hodges v. Snyder, 261 U.S. 600, 603, 43 S.Ct. 435, 436, 67 L.Ed. 819 (1923) ("[T]he private rights of parties which have been vested cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation."). McCullough remains sound law. Plyler v. Moore, 100 F.3d 365, 371 (4th Cir.1996); Johnston v. Cigna Corporation, 14 F.3d 486, 491-92 (10th Cir.1993).
*227 Significantly, the vested rights doctrine has two distinct, though interrelated components. On one hand, "[t]he doctrine has a due process component premised upon the acknowledgment that once rights are fixed by judgment, they are a form of property over which the legislature has no greater power than it has over any other form of property." Johnston, 14 F.3d at 490. On the other, the doctrine recognizes that "[i]n cases involving Congress and the federal judiciary, the vested rights doctrine also has a separation of powers component which prevents Congress from sitting as a `court of errors' with the power to suspend and revise final judgments of the federal courts." Id. at 490-91 (emphasis added). See also Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78, 83 (2d Cir.1993) ("Apart from protecting the property interests of prevailing parties, in cases involving congressional interference with federal court judgments, the vested rights doctrine has a separation of powers component which limits congressional review of judicial actions."). Where, as in this case, the legislative act attacked as unconstitutional is a state law which assertedly interferes with a final federal judgment, it is due process, rather than federal separation of powers concerns, that is obviously implicated.[8]
An important feature of the vested rights doctrine is that it applies only to final judgments, meaning after the "case has completed its journey through the appellate process" and "the availability of appeal is exhausted, and the time for a petition for certiorari has elapsed or the petition has been denied." Johnston, 14 F.3d at 489-90, n. 4. See also Johnson, 6 F.3d at 84 ("[A] case remains [pending] and open to legislative alteration, so long as an appeal is pending or the time for filing an appeal has yet to lapse."). It is precisely this factor which distinguishes the present case where a final, unreviewable judgment was entered prior to the effective date of the Oregon IUD legislation from the Fourth Circuit's decision in Shadburne where the case was pending on appeal when the Oregon IUD legislation was passed. Indeed, it is recognized that if a law changes while a case is on appeal, and the law as changed contains a retroactive date which impacts the case on appeal, the appellate court must apply the newly enacted law to the case, even if doing so would change the outcome of a case properly decided under the law in effect at the time the trial court entered judgment. Johnson, 6 F.3d at 84.
D. Plaut v. Spendthrift Farm
The leading modern case to address the scope of the vested rights doctrine in the context of the retroactive legislation is Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Here the Supreme Court struck down as unconstitutional provisions of § 27A(b) of the Securities Exchange Act of 1991 which had the purported effect of reinstating civil actions against security fraud defendants which had been previously dismissed as time-barred. Id. at 214-16, 115 S.Ct. at 1451. The plaintiffs in Plaut had not noted an appeal from the adverse judgment of the district court. Thus, as in this case, the effect of the retroactive provisions of § 27A(b), was to reopen of a final, unappealable judgment. Id.
The security fraud defendants in Plaut argued that retroactive application of § 27A(b) violated both the separation of powers doctrine as well as the Due Process Clause of the Fifth Amendment. Id. at 216-18, 115 S.Ct. at 1452. The Court specifically declined to address the due process challenge, however, noting that "if correct [it] might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment, [and that] the former [separation of powers challenge] is the narrower ground for adjudication of the constitutional questions in the case...." Id. at 217, 115 S.Ct. at 1452. Accordingly, Plaut does not squarely resolve the present case as state legislation is implicated here. See Johnston, 14 F.3d at 491 ("In cases involving Congress *228 and the federal Judiciary, the vested rights doctrine also has a separation of powers component which prevents Congress from sitting as a "court of errors" with the power to suspend or revise final judgments of the federal courts." (emphasis added)); Johnson, 6 F.3d at 83 ("in cases involving congressional interference with federal court judgments, the vested rights doctrine has a separation of powers component which limits congressional review of judicial actions." (emphasis added)). Nevertheless, Plaut remains instructive in determining how the due process component of the vested rights doctrine should be applied, and provides strong support for the conclusion that, under the Due Process Clause, retroactive application of the Oregon IUD legislation to reinstate the Luxfords' claims is unconstitutional. See Plyler, 100 F.3d at 375 (noting that "[t]he vested rights doctrine is analogous to the separation-of-powers rule that Congress may not mandate the reopening of final judgments"); Gavin v. Branstad, 122 F.3d 1081, 1090-91 (8th Cir.1997) (same); Benjamin v. Jacobson, 124 F.3d 162, 175-76 (2d Cir.1997) (same).
Writing for the Court, Justice Scalia began the analysis in Plaut with a historical overview of the problems which had developed in colonial times when legislative bodies "intermingled" legislative and judicial powers by passing legislation which mandated new trials in cases previously decided. Plaut, 514 U.S. at 218-20, 115 S.Ct. at 1453. The Court next made it clear that when Congress enacts retroactive legislation, appellate courts are obligated to apply the legislation to cases pending on appeal, even if the effect is to revise a judgment rendered by the trial court prior to the effective date of the new law. Id. at 226-28, 115 S.Ct. at 1457. Plaut, however, is unambiguous in its condemnation of legislative enactments with retroactive effective dates being used to reopen final, unappealable judgments:
But a distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), are implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of "inferior Courts" and "one supreme Court." Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress latest enactment, when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must decide a case according to existing laws.... Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other that what the courts said it was.
Id. at 227, 115 S.Ct. at 1457.
The impropriety of a legislative effort to retroactively alter a valid, final judgment is not diminished when it is the act of a state legislature as opposed to Congress. That the Supreme Court has directly condemned this practice by Congress under the separation of powers doctrine provides clear guidance that the same act by a state legislature equally offends the Constitution. The result is improper, by whatever constitutional doctrine is available to reach it. The fact that in Plaut the Supreme Court chose not to address the question broadly under both the Due Process Clause and the separation of powers doctrine surely cannot be interpreted as intimating that under a due process analysis a different result should obtain. Rather, the Court's unwillingness to address the due process issue should be viewed as a function of the Court's long standing practice of selecting the narrowest constitutional ground for resolving a case. Id. at 216-18, 115 S.Ct. at 1452 (citing Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).
E. Constitutionality of the Oregon IUD Legislation
In this case, it cannot be credibly disputed that the 1983 judgment against Ms. Luxford became final when it was not timely *229 appealed, and that this judgment is an adjudication on the merits for the purposes of the vested rights doctrine. Plaut, 514 U.S. at 226-28, 115 S.Ct. at 1457. A review of the complaint in that action reveals that the claims filed by Ms. Luxford against Robins are virtually identical to the claims brought in this case.[9]
The Oregon IUD legislation cannot now resurrect these claims consistent with the Fourteenth Amendment. To do so, would not merely upset a litigant's expectations, but deprive the defendant of a protected property right without due process of law. Thus, to the extent that the Oregon IUD legislation purports to reinstate the Luxfords' claims despite the entry of the 1983 final judgment against them, this legislation is unconstitutional. Johnston, 14 F.3d at 490-93; Georgia Ass'n of Retarded Citizens, 855 F.2d at 812; Plaut v. Spendthrift Farm, Inc., 789 F.Supp. 231, 234 (E.D.Ky.1992). See also Plyler, 100 F.3d at 371 ("Of course a judgment at law is immune to subsequent changes in the law.").
The Turner Elkhorn case and its progeny, including the Fourth Circuit's decision in Shadburne, do not suggest a different result. Unquestionably, these cases hold that even "settled expectations" of parties regarding the "burdens and benefits" of economic life are subject to retroactive change by legislation when it is passed to achieve a legitimate goal and is accomplished by a rational means. But the vested rights doctrine teaches that the "settled expectations" of parties exist on a continuum. At one end, is the expectation that economic burdens and benefits will remain as they are simply because nothing has occurred to upset the status quo. At the other end, is the expectation that a final judgment has fixed the rights and liabilities of the parties. As the Supreme Court made clear in Plaut, at any point in the continuum up to the entry of a final judgment, a state legislature, or Congress, is free to retroactively alter the settled expectations of parties, provided the legislation is supported by a rational basis. Once a judgment becomes final, however, it is a form of property. See State of Louisiana v. Mayor and Administrators of the City of New Orleans, 109 U.S. 285, 291, 3 S.Ct. 211, 215, 27 L.Ed. 936 (1883) (Bradley J., concurring) ("A judgment is as much an article of property as anything else that a party owns."). At this point in the continuum, to permit a legislative body to retroactively set aside the judgment of a federal court is constitutionally impermissible, whether viewed from the perspective of the separation of powers doctrine for congressional acts, or alternatively, the Due Process Clause of the Fourteenth Amendment for the acts of state legislatures.
CONCLUSION
For these reasons, accepting all of the plaintiffs' allegations as true, and drawing all justifiable inferences therefrom in their favor, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), I find that 1983 judgment entered against Ms. Luxford in the Oregon district court bars relitigation of the plaintiffs' present claims, and that the Oregon IUD legislation cannot constitutionally reinstate these claims. The defendant's Motion for Summary Judgment is accordingly GRANTED. A separate Order shall issue.
NOTES
[1] During oral argument, counsel for the Luxfords initially took the position that a final order had not been entered by the Oregon district court. When shown the August 26, 1983 order, however, he conceded that it was a final order. He was given time by the Court to submit documentation to show that the order was not final. He did not do so.
[2] During the August hearing on the defendant's motion, counsel for the Trust conceded that the Luxfords' pending case was timely filed under the Oregon IUD legislation.
[3] During the August hearing, plaintiffs' counsel argued that the Trust has waived its right to challenge the constitutionality of the Oregon IUD legislation an assertion counsel for the Trust vigorously denied. When asked for the factual and legal support for his waiver argument, plaintiffs' counsel conceded that he had none. There are no evidentiary facts in this record to support this claim as required by Fed.R.Civ.P. 56(c), and indeed the issue was not raised by plaintiffs' counsel in any pleading or motion. Accordingly, the waiver issue is not properly before the Court, and I will not consider it in determining whether the Trust is entitled to summary judgment.
[4] The Trust is charged with administering and disbursing funds to compensate injured claimants, and it has assumed all liabilities against Robins for injuries caused by the Dalkon Shield.
[5] It is noteworthy that the Trust has suggested, albeit in passing, that Judge Northrop's decision in the In re Dalkon Shield Cases is also entitled to preclusive effect. (Paper No. 18 at 11 n. 5). It may be. Even though the Fourth Circuit erroneously dismissed the Luxfords' appeal, unlike Ms. Shadburne, the Luxfords have not attempted to reopen the appeal or have their first Maryland case reinstated. I need not reach this issue, however, as the Oregon judgment independently bars the Luxfords' pending claims.
[6] Federal law determines the preclusive effect to be given to the judgment of the Oregon district court. Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir.1989). Generally, a prior judgment is claim preclusive under federal law where 1) it is a final adjudication on the merits rendered by a court of competent jurisdiction consistent with due process requirements; 2) the parties are identical, or in privity, in the two actions; and 3) the claims in the second matter are the based upon the same cause of action involved in the earlier proceeding. In re Varat Enterprises, Inc., 81 F.3d 1310, 1315 (4th Cir. 1996). These elements are satisfied in this case. First, it is established under Fed.R.Civ.P. 41(b) that the dismissal of an action as time-barred operates as an adjudication on the merits, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226-28, 115 S.Ct. 1447, 1457, 131 L.Ed.2d 328 (1995); Shoup, 872 F.2d at 1180, 18 James Wm. Moore, et al., Moore's Federal Practice ¶ 131.30[3][g] (3rd ed.1997), and plaintiffs' suggestion that the Oregon judgment was not an adjudication on the merits because Ms. Luxford, in effect, abandoned this suit to pursue her claims in Maryland is plainly without merit. Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323, 1325 (10th Cir. 1979). Second, it is not disputed that the parties in the present suit are the same or in privity with the original parties. Finally, it is also not contested that the present claims are the same or substantially the same as those in the Oregon litigation. Accordingly, as Judge Northrop concluded, the Oregon judgment is entitled to preclusive effect under res judicata principles.
[7] The Turner Elkhorn and Pension Benefit Guaranty Corp. Courts relied upon five identical cases for the principle that legislation readjusting the rights and burdens of parties is not unlawful solely because it upsets otherwise settled expectations. None of these cases dealt with the issue presented in this case a legislative enactment passed, in part, for the specific purpose of invalidating final judgments which fixed the rights of the litigants with respect to a particular dispute. See Fleming v. Rhodes, 331 U.S. 100, 67 S.Ct. 1140, 91 L.Ed. 1368 (1947) (holding that a federal act extending wartime rent control limits permitted federal courts to issue injunctions to prevent future evictions of tenants from properties owned by landlords who had obtained state court judgments of eviction during the hiatus between the expiration of the original rent control legislation and its extension); Carpenter v. Wabash Ry. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940) (holding that changes in the bankruptcy law enacted while judgment was on appeal controlled the outcome of the case, and required a reversal of the judgment even though it properly was entered by the trial court based on the law in existence at that time); Norman v. Baltimore & Ohio R.R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935) (holding that federal legislation which rendered unenforceable provisions in contracts requiring payment in gold coin was a constitutional exercise of Congress' power to create a money system, despite its effect of invalidating certain provisions of otherwise enforceable contracts); Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934) (upholding Minnesota legislation passed during the depression which gave state courts power to enter equitable relief to prevent foreclosure of mortgages and extend periods of redemption against Contract Clause, due process and equal protection challenges); Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911) (on appeal of state court judgment, ruling that federal statute prohibiting interstate carriers from issuing passes for railroad transportation for compensation other than its published rates rendered unenforceable a settlement between personal injury claimants and railroad, under which railroad agreed to issue free passes for rail travel to plaintiffs for life in return for release).
[8] The parties have not cited, and I have not located, authority which analyzes the vested rights doctrine from the perspective of the Supremacy Clause. Although it is tempting to consider whether the Supremacy Clause provides an independent constitutional basis for resolving this case, I decline to embark upon such an untested analysis, when there is an accepted alternative constitutional basis readily available governing the outcome here.
[9] By letter to counsel dated July 23, 1997 I requested a copy of the complaint filed by Ms. Luxford in the Oregon federal litigation. By letter dated August 1, 1997, counsel for the defendant supplied me with a copy of that complaint, and copied counsel for the plaintiff with the letter and enclosure. At oral argument on August 18, 1997, counsel for the plaintiff acknowledged that the Oregon complaint, made a court exhibit at the argument hearing, was authentic.
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MELVIN E. HARWICK,
Plaintiff-Appellant,
v. No. 97-6390
(D.C. No. CIV-96-1369-M)
DWAYNE ANDERSON, individually (W.D. Okla.)
and as Sheriff of McClain County,
Oklahoma; McCLAIN COUNTY,
OKLAHOMA, a political subdivision
of the State of Oklahoma, by and
through its Board of County
Commissioners,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, LOGAN, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Melvin E. Harwick was arrested pursuant to a bench warrant
issued by a state court judge which stated on the face of the warrant that plaintiff
would be released upon the posting of a $5000 cash bond. Plaintiff was detained
in the McClain County, Oklahoma, jail for seven days before being arraigned.
He brought this action under 28 U.S.C. § 1983 alleging violation of his
constitutional rights as a result of the delay in the arraignment and because of
insufficient attention to his medical needs while incarcerated. Plaintiff also
brought various state-law-based tort claims. As defendants, plaintiff named
Dwayne Anderson, individually and as sheriff of McClain County; McClain
County, by and through its Board of County Commissioners; and John Does,
unknown jailers and deputies.
In granting summary judgment for defendants, the district court found
that plaintiff failed to allege facts to establish a county policy of wrongful
imprisonment and denial of medical treatment and, therefore, could not maintain
his claim against the county. As to the sheriff, who was sued both individually
and in his official capacity, the court held that plaintiff had failed to show any
individual participation on the part of the sheriff, thus dooming plaintiff’s effort
to establish individual liability. With regard to the official capacity claims
-2-
against the sheriff, the court again concluded that plaintiff had failed to set out
facts tending to establish an official policy or custom or failure to train on the
part of the sheriff. Because there was no showing of any personal involvement
on the part of the sheriff, state law tort claims against him individually similarly
failed. Further, because no individuals in the sheriff’s employ were named
as defendants, plaintiff failed to establish respondeat superior liability in tort
to sustain the official capacity suit. Finally, the court found that plaintiff
had withdrawn his claims brought under the Oklahoma Governmental Tort
Claims Act.
In our de novo review of the grant of summary judgment, we apply the
same standard as that used by the district court. See Jenkins v. Wood, 81 F.3d
988, 990 (10th Cir. 1996). That standard is a familiar one: a court correctly
grants summary judgment only where “there is no genuine issue as to any
material fact and [] the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). As is required, we have examined the record in the light
most favorable to plaintiff, as the nonmoving party, and have extended to him all
reasonable factual inferences. See Jenkins, 81 F.3d at 990. We affirm.
The court properly granted the motion for summary judgment filed by the
McClain Board of County Commissioners. “Under Oklahoma law, the Board has
no statutory duty to hire, train, supervise or discipline the county sheriffs or their
-3-
deputies.” Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). Only by
showing that the Board “voluntarily undertook responsibility for hiring or
supervising [McClain] county law enforcement officers,” id., would plaintiff even
be able to state a claim against the Board under these circumstances. Plaintiff
made no such allegation. To the extent plaintiff attempts to establish liability on
the part of the county through a theory of respondeat superior, his effort fails
because § 1983 does not encompass respondeat superior liability on the part of
a municipality. See Monell v. Department of Social Servs., 436 U.S. 658, 691
(1978).
Turning to the sheriff individually, our review of the record reveals no
evidence of any personal participation by the sheriff in the incidents involving
plaintiff. It is undisputed that the sheriff had no knowledge of plaintiff’s long
incarceration without arraignment or the alleged denial of medical treatment until
he was informed by his attorney of this lawsuit. The sheriff, therefore, cannot be
held individually liable for the situation that befell plaintiff. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (“Personal participation is an
essential allegation in a § 1983 claim.”); see also Mee v. Ortega, 967 F.2d 423,
430-31 (10th Cir. 1992) (finding no § 1983 liability where there was no
affirmative link between the constitutional violation and the supervisor’s own
actions, citing Meade, 841 F.2d at 1527). Further, because plaintiff did not
-4-
identify a specific defendant or defendants who personally participated in the
alleged harm, he cannot maintain a cause of action against the sheriff individually
based on respondeat superior liability. See Andrews v. Philadelphia, 895 F.2d
1469, 1488 (3d Cir. 1990). 1
Plaintiff also sued the sheriff in his official capacity, thus, in reality
attempting to impose liability on McClain County. See Meade, 841 F.2d at 1529.
“For a county to be held responsible, it must have caused the harm through the
execution of its own policy or custom by those whose edicts or acts may fairly
be said to represent official policy.” Id. Plaintiff has proffered no evidence
regarding any county policy or custom which could have caused his harm.
He merely testified to his own knowledge of practices in other sheriff’s
departments and surmised that the policies and customs of defendant must have
been the genesis of the harm to him. This is insufficient to sustain a claim against
the sheriff in his official capacity.
Plaintiff argues that the testimony of Undersheriff Barrow is sufficient
evidence of county policy. We disagree. Mr. Barrow testified as follows:
1
Plaintiff complains that he was unable to specifically name defendants
because jail personnel did not wear nametags. We note that the district court
docket sheet reflects at least two extensions of the discovery deadline and an
order authorizing the issuance of a subpoena for disclosure of records and
appearance for deposition and trial. Given these and other means available to
plaintiff under the Federal Rules of Civil Procedure, plaintiff should have been
able to identify specific defendants.
-5-
Q: [H]ave you had other civil cases where the judges say till they meet the
face of the bond, don’t bring them over for an arraignment?
A. On occasion.
Q. On occasion? Can you tell me now many times?
A. I honestly don’t remember.
Q. More than 10?
A. Less than 10.
I R. tab 39, Barrow deposition at 24-25.
We agree with the district court that this evidence is insufficient to
establish a practice or policy on the part of the Sheriff’s Department. Plaintiff
provided no detail of the circumstances of those prior incidents. At best, the
evidence identifies a practice of the county judges and not one of these
defendants.
To the extent plaintiff claimed that the sheriff was liable for failure to train
his deputies, plaintiff must put forth evidence tending to establish that “the failure
to train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).
In order to be liable, the sheriff must have had notice that his departmental
procedures were inadequate and substantially certain to result in a violation of
plaintiff’s constitutional rights. See id. at 396 (O’Connor, J., concurring in part).
Specifically with regard to a failure to train claim, plaintiff “must prove ‘the need
-6-
for more or different training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the [sheriff] can reasonably be said to
have been deliberately indifferent to the need’ for additional training.” Jenkins,
81 F.3d at 994 (quoting Harris, 489 U.S. at 396). Because plaintiff here seeks to
establish liability on the basis of a single incident, he “must show the particular
illegal course of action was taken pursuant to a decision made by a person with
authority to make policy decisions on behalf of the entity being sued.” Id. While
the parties do not dispute that the sheriff had the authority to make decisions
concerning the operation of the jail, there is no evidence that the failure to arraign
plaintiff in a timely manner or the alleged failure to provide medical care were
due to any action, inaction, or decision of the sheriff. Plaintiff’s claims against
the sheriff in his official capacity, therefore, must fail.
Plaintiff states in his opening brief that the federal court had no authority
to dismiss his state court action. The federal court did not dismiss a state court
action; it granted summary judgment to defendants on plaintiff’s state law claims
which were part of the federal lawsuit. The federal court had the power to do this
and, indeed, was required to so act when plaintiff failed to establish a basis upon
which he could prevail against defendants on the state law tort claims.
Finally, plaintiff asserts that the district court erred because it failed to
consider the wording on the face of the warrant which directed the sheriff to take
-7-
plaintiff to the nearest magistrate. These words add nothing to the analysis and
do not change the outcome of this case. The district court acknowledged that
plaintiff’s detention amounted to a prima facie due process violation under
§ 1983. Unfortunately for plaintiff, however, he was unable to show that the
defendants he sued were liable for that violation.
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
-8-
| {
"pile_set_name": "FreeLaw"
} |
885 F.2d 873
Weinberg (Shayne)v.Commissioner of Internal Revenue
NO. 86-1463
United States Court of Appeals,Seventh Circuit.
JUL 14, 1989Rehearing Denied Sept. 18, 1989.Rehearing Denied Sept. 18, 1989.
1
Appeal From: U.S.T.C.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
March 28, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
__________________
No. 02-10342
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIDNEY WADE SERS,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas, San Angelo
6:00-CR-6-1-C
______________________________________________
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Sidney Sers pleaded guilty to one count of contempt, one count of obstruction of justice, and
nine counts of money laundering. Pursuant to a plea agreement, he waived his right to appeal with
certain exceptions. The district court sentenced him to 210 months of imprisonment.
Sers argues that the indictment failed to allege the offense of money laundering pursuant to
*
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.
18 U.S.C. § 1956.1 It is undisputed that the underlying unlawful activity and the financial transaction
must be separate events. Sers contends that because the financial transactions alleged in the
indictment were the same acts as the specified unlawful activity, the indictment fails to allege the
offense of money laundering.
Relying on United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781 (2002), the government
responds that this claim is not jurisdictional, and, as a result, Sers affirmatively waived the claim by
agreeing to waive his appeal in the plea agreement. In Cotton, overruling prior precedent, the
Supreme Court held that an omission from an indictment does not deprive a court of jurisdiction. 122
S.Ct. at 1785.2 More specifically, “Cotton demonstrates that standard waiver principles apply to
defects in the indictment.” United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002).
Accordingly, by pleading guilty, Sers waived all non-jurisdictional defects, including his claim of
defective indictment.
Sers next argues that his guilty plea was involuntary and in violation of Rule 11 because the
district court failed to admonish him of the nature of the charges. “Rule 11's requirement that
defendants understand the ‘nature of the charge’ against them refers to the elements of the offense.”
United States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001). “Neither Rule 11 nor the case law
specifies the minimum that the district court must do to inform the defendant . . . of the nature of the
1
“To secure a conviction under section 1956(a)(1), the government must prove that the
defendant 1) conducted or attempted to conduct a financial transaction, 2) which the defendant
then knew involved the proceeds of unlawful activity, 3) with the intent to promote or further
unlawful activity.” United States v. Puig-Infante, 19 F.3d 929, 937 (5th Cir. 1994).
2
See also United States v. Bieganowski, 313 F.3d 264, 286-87 (5th Cir. 2002) (relying on
Cotton, this Court explained that a claim of constructive amendment of the indictment is not the
equivalent of a claim of a jurisdictional defect).
2
charge.” United States v. Reyna, 130 F.3d 104, 110 (5th Cir.1997) (internal quotation and citation
omitted). Rather, "the court must have a colloquy with the defendant that would lead a reasonable
person to believe that the defendant understood the nature of the charge." Id.
The government argues, and Sers concedes, that because he failed to object, this claim may
be reviewed only for plain error. See United States v. Vonn, 122 S.Ct. 1043 (2002); United States
v. Adam, 296 F.3d 327, 333 (5th Cir. 2002). Cf. United States v. Baymon, 312 F.3d 725, 727 (5th
Cir. 2002) (explaining that “even if there is an unconditional plea of guilty or a waiver of appeal
provision in a plea agreement, this Court has the power to review if the factual basis for the plea fails
to establish an element of the offense which the defendant pled guilty to”).
Sers signed a plea agreement and the factual resume admitting his offenses and the facts
underlying the offenses. At the plea hearing, the district court inquired of Sers whether he had
reviewed and understood those document s and whether they were accurate. Sers responded
affirmatively. Additionally, although Sers (through counsel) waived the reading of the initial
paragraphs of the indictment, the counts to which he plead guilty were read to him in open court.3
Finally, the district court inquired whether “[a]fter reviewing your rights, the nature of the charges
presented against you, and the potential penalties, do you still wish to plead guilty to those counts?”
Sers again responded affirmatively.
Sers argues that, with respect to the money laundering charges, the district court failed to
ascertain whether he understood that the government had to prove that the financial transactions were
separate acts from the obstructive conduct. The thrust of his argument is that the district court, the
3
Moreover, the record contains a notation that provides that the indictment was read by the
prosecutor at the arraignment held on the superseding indictment on March 21, 2001.
3
government, and defense counsel failed to comprehend this requirement, and that, had Sers been so
admonished, he “most certainly would not have entered [into] this plea agreement.”
This argument rests on a faulty premise. As the Tenth Circuit has explained: “All that is
required to violate § 1956 is a transaction meeting the statutory criteria that takes place after the
underlying crime has been completed. Thus, the central inquiry in a money laundering charge is
determining when the predicate crime became a ‘completed’ offense. . . .” United States v. Kennedy,
64 F.3d 1465, 1478 (10th Cir. 1995). Here, for example, Sers’s predicate crime of obstruction of
justice was completed at the time he knowingly violated the temporary restraining order by
transferring assets. Negotiation of the cashier’s checks was not required to complete the obstruction
of justice. Applying the Tenth Circuit’s analysis in Kennedy, Sers’s negotiation of the cashier’s
checks constituted separate financial transactions under § 1956. Under these circumstances, Sers has
not shown that there was confusion (at least not rising to the level of plain error) in the district court
with respect to the elements of § 1956. Accordingly, the premise of Sers’s argument fails, precluding
him from showing plain error with respect to his Rule 11 claim.4
Sers next contends that the district court erred in denying his motion for a continuance of the
sentencing hearing based on the failure to allow him sufficient time pursuant to Rule 32 to review
a revised presentence report. Because we are not persuaded that Sers was harmed by the denial of
the continuance, we find that the district court did not abuse its discretion in denying the motion. We
4
Sers also argues that the district court’s failure to define “corrupt” with respect to his
obstruction of justice offense violated Rule 11. Sers asserts that the court should have informed
him that the government had to prove that he “acted knowingly and dishonestly, with the specific
intent to subvert or undermine the due administration of justice.” The factual resume, which Sers
agreed was accurate, amply demonstrates that Sers acted “corruptly.” Sers has not show plain
error with respect to this contention.
4
likewise conclude that Sers’s remaining challenges to his sentence do not entitle him to relief.
The district court’s judgment is AFFIRMED.
5
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 6, 2009
JOSEPH C. BARNA v. W. MARTIN SEILER
Appeal from the Circuit Court for Davidson County
No. 06C-996 Walter C. Kurtz, Judge
No. M2008-01573-COA-R3-CV - Filed April 19, 2011
F RANK G. C LEMENT, J R., J., dissenting.
I respectfully disagree with the majority’s conclusion that the movant, attorney Martin
Seiler, shifted the burden of persuasion to the plaintiff Joseph Barna for purposes of
summary judgment. Admittedly, Mr. Barna did not refute the affidavit of Mr. Seiler, but I
submit he did not have to because Mr. Barna was not obliged to come forward with
countervailing evidence to create a dispute of fact. This is due to the fact that Mr. Seiler
failed to provide a sufficient affidavit or other proof. Specifically, Mr. Seiler’s affidavit,
which is the only evidence to support his motion for summary judgment, is insufficient
because he failed to provide any specific material fact for this court to consider that pertains
to the legal services he actually rendered. Mr. Seiler only informed us of the fact that he has
many years of experience as a lawyer in the field of security litigation, which is a relevant
and material fact, but by itself is insufficient to refute the specific allegations in the complaint
as to what Mr. Seiler failed to do in his representation of Mr. Barna.
In the Complaint, Mr. Barna specifically alleged, inter alia:
a. [Mr. Seiler] failed to revise the statement of claim. Plaintiff requested that
the Defendant prepare a new and corrected statement of claim.
b. He failed to properly calculate the damages and to present the damages
properly at the hearing. Plaintiff’s request [sic] to the Defendant to prepare a
proper and corrected calculation of damages.
c. He failed to obtain an expert witness for the hearing.
d. He failed to recognize which securities were marginable [sic] and which
were not.
e. He failed to inform the Plaintiff of the offer made by Waterhouse in a timely
manner.
f. He failed to recognize the difference between a house call and an exchange
call.
...
h. He failed to take reasonable steps to obtain the presence of all the persons
needed as witnesses at the hearing.
j. He failed to present at the hearing that Waterhouse had not followed NY
Stock Exchange rules and its own rules in connection with the Grossover
extension of credit.
...
In his affidavit Mr. Seiler provided very few facts; he merely states:
All legal services I provided to Mr. Barna were given in accordance with the
standard of acceptable legal professional practice and with the degree of skill,
care, diligence, learning, and experience ordinarily used, possessed, and
practiced by other attorneys skilled in securities law and in arbitration related
to securities law and in arbitration related to securities law in the State of
Tennessee on or about the times material herein.
He goes on to state that in his opinion, that nothing he did or did not do with respect
to the legal services he provided to Mr. Barna caused the losses his client suffered in the
arbitration proceeding. But what did he do? We have no way of knowing.
I fully concur with the majority that affidavits of defendant professionals are sufficient
to support a motion for summary judgment and to shift the burden to the plaintiff to come
forward with competent expert proof showing there is a dispute. Miller v. Birdwell, 327
S.W.3d 53, 60 (Tenn. Ct. App. 2010) (“It is well established that the affidavits of the
defendant physicians are sufficient by themselves to support a motion for summary
judgment.”) (citing Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003)). However,
not all affidavits of defendant professionals satisfy the evidentiary requirements, one of
which is stating facts in addition to their conclusory statements.
As the majority noted on page twelve of the opinion,
In order to “clearly and completely” refute a plaintiff’s claims of professional
malpractice, and thereby shift the evidentiary burden to the plaintiff in a
summary judgment motion determination, a defendant expert’s affidavit will
be sufficient if it: (1) establishes the affiant’s knowledge of the applicable
standard of care; (2) demonstrates the basis for that knowledge; (3) describes,
even briefly, the actions taken by the affiant in the course of the professional
-2-
services rendered to plaintiff; (4) and states the opinion that the actions met the
standard of care, or that nothing done by affiant breached the standard of care
. . . . (emphasis added)
Mr. Seiler satisfied three of the four criteria above, but he did not satisfy the third
requirement; he did not describe, even briefly, the actions he took in the course of his
representation of Mr. Barna. Therefore, without any factual foundation concerning what Mr.
Seiler did nor did not do in his representation of Mr. Barna, Mr. Seiler’s opinion is merely
conclusory and, thus, insufficient for purposes of summary judgment.
In a substantially similar legal malpractice case, ironically involving the same
plaintiff, Barna v. Preston Law Group, P.C., 2009 WL 2616038 at * 6 (Tenn. Ct. App.
2009), this court relied on Tenn. R. Evid. 702, Tenn R. Evid. 705, and Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 8 (Tenn. 2009) (holding that conclusory opinions that are not
supported by or based upon identified facts are not sufficient to shift the burden of
production to the nonmoving party) to conclude that:
Generally, an expert witness may render an opinion based on facts or data
known to the expert; nevertheless, the expert who testifies in terms of opinion
may be required to disclose the underlying facts. Tenn. R. Evid. 702, 705. For
purposes of shifting the burden of proof in a motion for summary judgment, an
expert’s conclusory affidavit neither negates an essential element of a claim
nor does it establish an affirmative defense. See Hannan, 270 S.W.3d at 8. In
the context of summary judgment, our Supreme Court has stated that
conclusory opinions that are not supported by or based upon identified facts
are not sufficient to shift the burden of production to the nonmoving party. See
Hannan, 270 S.W.3d at 8; see also Blanchard v. Kellum, 975 S.W.2d 522, 525
(Tenn.1998) (reversing summary judgment because the defendant’s conclusory
affidavit did not trigger the plaintiff’s burden in the motion for summary
judgment). Therefore, we find that Mr. Preston’s conclusory “opinions”
regarding Mr. Barna’s case against Firstrade and the causation of Mr. Barna’s
damages, without providing supporting facts, were insufficient to negate an
essential element of Mr. Barna’s legal malpractice claim – damages or
causation – and shift the burden of production. (Emphasis added).
Barna, 2009 WL 2616038 at * 6.
I, therefore, submit that because Mr. Seiler’s affidavit fails to provide for our
consideration any specific and material facts to support his conclusions that his services,
whatever they were, complied with the standard of care and caused no damage to Mr. Barna.
-3-
For these reasons, I respectfully dissent.
______________________________
FRANK G. CLEMENT, JR., JUDGE
-4-
| {
"pile_set_name": "FreeLaw"
} |
289 F.Supp.2d 289 (2003)
Isaac GOVAN, Plaintiff,
v.
James CAMPBELL, Albany County Sheriff; Edward Szostak; Michael Frese, Albany County Correctional Officer; and Co Rudolph, Albany County Correctional Officer, Defendants.
No. CV.9:98-CV-00710 GLS.
United States District Court, N.D. New York.
October 29, 2003.
*290 *291 *292 *293 Isaac Govan, Ogdensburg, NY, Pro se.
Roche, Corrigan Law Firm (Robert P. Roche, Esq., Of Counsel), Albany, NY, for Defendants.
DECISION AND ORDER[1]
SHARPE, United States Magistrate Judge.
I. Introduction
Plaintiff, pro se Isaac Govan filed an action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights. The defendants filed a motion for summary judgment. After reviewing Govan's claims, this court grants the defendants' motion for summary judgment because Govan's complaint fails to state a claim for which relief can be granted.
II. Background
The original complaint was filed more than five years ago, but Govan amended that complaint on October 12, 2001. On May 12, 2003, the defendants filed a motion for summary judgment, and Govan subsequently responded. Govan contends that the defendants violated his civil rights under the Eighth and Fourteenth Amendments. Essentially, he claims that the defendants failed to provide him access to the grievance process, interfered with his mail, subjected him to inhuman prison conditions, assaulted him and denied him medical treatment.
The defendants maintain that Govan has never specified what injury the prison conditions, assault and denial of medical treatment caused him. They further maintain that the prison conditions did not violate Govan's rights, and that they were not responsible for the interruption of his mail. This court addresses each of these claims seriatim.
*294 III. Facts[2]
A. Assault
Govan alleges that while he was incarcerated at the Albany County Correctional Facility ("Albany"), he suffered physical and verbal abuse by Correctional Officers Rudolph and Frese. Specifically, he claims that Frese was sleeping while supervising recreation in the gym. During that time, Govan suffered a leg injury when he was struck with a basketball. Thereafter, he requested medical attention but was refused by Frese and Rudolph. Govan also claims that Frese used racial slurs, and pushed him against a wall. When Frese pushed him against the wall, he rubbed against Govan, and Govan argues that the rubbing constituted an unnatural sex act. Govan maintains that Rudolph spit on him, cursed at him, used vulgar language toward him and threatened him with physical violence. Govan claims that Rudolph used other inmates to intimidate him into dropping charges he had against him.
B. Prison Conditions
Govan complains of leaking pipes, rust on the walls, rust bubbles in the shower stall, and a splotchy brown substance on the walls and ceiling. He alleges that Szostak, the Albany County Jail Superintendent, poorly maintained the facility. Govan complains that there were cockroach problems, and that birds were permitted to enter through the windows of the facility. Govan also claims that he may have been exposed to the HIV virus, and Hepatitis B and C, through a dentist who worked for the facility who was using unsafe procedures.[3]
C. Denial of Grievances
Govan maintains that he was denied access to the grievance and appeals process by Szostak. Specifically, he maintains that Szostak failed to mail his appeal, thereby denying him his right to appeal. Govan also maintains that Campbell, as Sheriff, did not respond to his complaint regarding his mail problem. Finally, Govan claims that Campbell failed to forward his legal mail to Rensselaer County after he was transferred in the Fall of 1998. Govan claims that his file was left behind at Albany where it was destroyed by unknown persons.
IV. Discussion
A. Legal Standard
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). The moving party has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). "When a motion for *295 summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of the ... pleading, but the adverse party's response, by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56(e) ], must set forth specific facts showing that there is a genuine issue for trial." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir.1994)(alternation in original) (citation omitted). However, it is well settled that on a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999).
Furthermore, in a pro se case, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)(a court is to read a pro se party's "supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest"). Indeed, the Second Circuit has stated that "[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Any ambiguities and inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990); see LaFond v. General Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir.1995).
This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment. Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001). More specifically, Local Rule 7.1(a)(3) of this court specifically provides that "any facts set forth in the [moving party's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Local Rule 7.1(a)(3) further requires that the "non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise." The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. Giguere v. Racicot, 00-CV-1178, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002)(inter alia citing Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 00-CV-260, 2001 WL 237218, at *1 (N.D.N.Y. March 9, 2001)).
Furthermore, this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute. Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir.2002). As long as the local rules impose a requirement that parties provide specific record citations in support of their statement of material facts, the court may grant summary judgment on that basis. Id. at 470-71.
In this case, Govan did not file a statement of undisputed material facts in compliance with Local Rule 7.1(a)(3). Consequently, the court will accept the *296 properly supported facts contained in the defendants' 7.1 statement (Dkt. No. 134) as true for purposes of this motion.[4] With this standard in mind, the court now turns to the sufficiency of Govan's claims.
B. Prison Conditions
Govan alleges that Szostak failed to provide a clean and healthy living environment in violation of his Eighth Amendment. In order to prevail on a claim that the conditions of confinement constitute cruel and unusual punishment, a plaintiff must satisfy both an objective element and a subjective element. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To satisfy the objective element, a "plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs" or deprived him "of the minimal civilized measure of life's necessities." Anderson v. Coughlin, 757 F.2d 33, 34-35 (2d Cir.1985) (citing Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).
The subjective element requires a plaintiff to show that the prison official acted with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). In cases involving prison conditions, the state of mind is one of "deliberate indifference." Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321). Conditions that are restrictive and harsh are an element of the penalty that criminal offenders pay to society for their offenses. See Rhodes, 452 U.S. at 347, 101 S.Ct. 2392.
In this case, Govan complains that the shower stalls were unclean and had rust bubbles. He also complains that the tier was infested with cockroaches which could have crawled into his orifices while he slept, or inside his clothing and shoes. He further claims that the sink and hot water in his cell did not work. Govan also claims that "wild birds" were permitted to fly freely through the facility. Finally, Govan contends that his safety was in danger since the officer on duty could not see directly into his cell at all times.
The defendants maintain that Govan has failed to state a claim for which relief can be granted. They maintain that the prison conditions in question were not serious enough to trigger a violation of Govan's constitutional rights. Moreover, the defendants point out that Govan has failed to show that they intended to cause him harm by subjecting him to the alleged prison conditions. Campbell's affidavit informs the court that hot water was provided in the shower area and thus, hot water was purposely turned off in every cell. Campbell Aff. at ¶ 6. Moreover, the defendants argue that the fact that Govan could have caught a "cold" or an "infection" is insufficient to show a violation of the constitution. The defendants further maintain that even if the prison conditions were unpleasant, they did not violate the constitution.
Govan has failed to assert unconstitutional prison conditions. As mentioned, conditions that are restrictive and harsh are an element of the penalty that criminal offenders pay to society for their offenses. Govan asserts conditions which "could have" caused him harm but he fails to assert how he was actually harmed. It may well be that the shower stalls had rust bubbles, that wild birds were permitted to *297 fly within the cells, and that there were cockroach problems, but these conditions do not rise to the level of a constitutional violation. Accordingly, Govan's Eighth Amendment prison condition claim is dismissed.
C. Grievance
Govan claims that he was prevented from filing grievances. Prisoners retain the constitutional right to petition the government for the redress of grievances. Overton v. Bazzetta, ___ U.S. ___, ___, 123 S.Ct. 2162, 2171, 156 L.Ed.2d 162 (2003)(citing Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)). Govan claims that inmates are instructed to fill out a grievance complaint on a sheet of paper and hand it to the corrections officer who then will read the complaint and supposedly rewrites the complaint on a grievance form. Govan claims that if the complaint was against an officer's friend, the grievance would be destroyed.
The defendants maintain that the record belies Govan's allegation that he was not permitted to file grievances. The defendants have provided fourteen different grievances filed by Govan from February 21, 1998, to November 5, 1998. Some of the issues for which Govan filed a complaint included denial of phone access to have his wife charged and arrested, missed meals when he went to court, and contesting a ticket for fainting. Furthermore, the defendants argue that the official paperwork does not account for the unofficial request to Tier Sergeants, Captains and/or handwritten memos to the administration requesting that he be contacted in his cell throughout his intermittent ten month stay. Moreover, Campbell's affidavit informs the court that the allegation that he permitted corrections officers to rip up grievance forms was untrue. In fact, Campbell states that Govan was encouraged to write grievances so he would remain quiet. Campbell Aff. at ¶ 4.
The court notes that Govan makes no specific allegation that a particular grievance was somehow disregarded or ripped up. He claims that Albany had a policy to deny inmate grievances. As previously mentioned, conclusory allegations are insufficient to show that a constitutional violation occurred. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). Furthermore, most of Govan's grievances went through the entire appellate process. Many of the grievances went to the Citizen's Review Board. This court finds that Govan was not precluded from filing grievances. Since Govan fails to state a specific claim for which relief can be granted, summary judgement in favor of the defendants is warranted.
D. Legal Mail
Govan contends that the defendants interfered with his legal mail. "It is accepted that a prisoner must be present when, for whatever reason, legal mail (clearly marked as such) is opened by prison officials ... and th[e] Constitution guarantees a prisoner[] `reasonable access to the courts.'" Standley v. Lyder, 99 Civ 4711, 2001 WL 225035, at *2 (S.D.N.Y. March 6, 2001)(internal citation omitted) (citing Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986)) (citing Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). In order "[t]o prevail on a claim of interference with legal mail, a plaintiff must show that a pending or anticipated legal action was prejudiced by the alleged interference." Standley, 2001 WL 225035, at *2 (quoting Morgan v. Montanye, 516 F.2d 1367, 1372 (2d Cir. 1975) and Herrera v. Scully, 815 F.Supp. 713, 725 (S.D.N.Y.1993)). The Second Circuit has clearly held that an isolated incidence *298 of interference with a prisoner's mail does not give rise to a cognizable claim under § 1983. Id. 2001 WL 225035 at *2 (citation omitted).
In this case, Govan alleges that the defendants twice interfered with his mail. Govan also claims that the defendants are responsible for the destruction of paperwork he left behind. The defendants maintain that the interruption of mail was not a facility problem. According to the defendants, Govan was informed that this issue was to be resolved with the United States Post Office. The defendants also maintain that Govan failed to show how the destruction of his paperwork caused an injury. Furthermore, they maintain that he abandoned his property.
This court finds that Govan's legal mail assertion fails to state a claim for which relief can be granted and dismissal is appropriate. He has failed to show that a pending or anticipated legal action was prejudiced by the alleged interference by the defendants. He further fails to name the defendants who allegedly destroyed his property. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citation omitted). As such, it is insufficient to allege that supervisory officials, Campbell and Szostak, are responsible for the unwarranted destruction of Govan's property.
Regardless of Govan's contention that the effort and stress including the cost to replace the items that the defendants allegedly destroyed will be great, this is insufficient to show a constitutional violation. As previously mentioned, an isolated incidence of interference with a prisoner's mail does not give rise to a cognizable claim under § 1983. Govan fails to even suggest that the interruption and/or the destruction of his property caused a legal action to be hindered. In addition, he admits leaving his documents behind in his cell and fails to name the specific person whom he believes destroyed his property. Accordingly, this court finds that Govan's legal mail claim is without merit and dismissal is appropriate.
E. Assault and Denial of Medical Claim
Govan claims that the defendants denied him medical attention and subsequently assaulted him. As a general rule, a state has a constitutional obligation to provide inmates adequate medical care. See West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Furthermore, the Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. Amend. VIII. The Eighth Amendment also prohibits the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components, one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect. Sims v. Artuz, 230 F.3d 14, 21 (2d Cir.2000) (citing Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). The subjective component of the claim requires a showing that the defendant "had the necessary level of culpability, shown by actions characterized by `wantonness'" in light of the particular circumstances surrounding the challenged conduct. Blyden v. Mancusi, 186 F.3d at 262 (quoting Wilson v. Seiter, 501 U.S. 294, 298-299, 111 S.Ct. 2321, 115 L.Ed.2d 271). In an excessive force case, whether conduct was "wanton" turns on "whether force was applied *299 in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7, 112 S.Ct. 995; see also, Blyden v. Mancusi, 186 F.3d at 262-63. The objective component of a cruel and unusual punishment claim focuses on the harm done, but the amount of harm that must be shown depends on the nature of the claim. See Hudson, 503 U.S. at 8, 112 S.Ct. 995. This objective component is "contextual and responsive to contemporary standards of decency." Id. (internal quotation marks omitted).
However, a showing of extreme injury is not required when the claim is that prison officials used excessive force. In the excessive force context, society's expectations are different. Sims, 230 F.3d at 21. "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated ... [t]his is true whether or not significant injury is evident." Id. at 21 (citation omitted). Thus, "[t]he key inquiry under Hudson and its precedents is whether the alleged conduct involved `unnecessary and wanton infliction of pain.'" Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.1994)(quoting Hudson, 503 U.S. at 8, 112 S.Ct. 995). The Second Circuit has recognized that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Sims, 230 F.3d at 22. Moreover, an allegation indicating "a de minimis use of force will rarely suffice to state a constitutional claim." Id. (citations omitted).
Simply put, the Eighth Amendment's prohibition against cruel and unusual punishment does not extend to "de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 10, 112 S.Ct. 995 (internal quotation marks omitted). However, when a prisoner alleges facts from which it could be inferred that prison officials subjected him to excessive force, and did so maliciously and sadistically, this states an Eighth Amendment claim on which he is entitled to present evidence. Nevertheless, a claim brought under "42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse." Gill v. Hoadley, 261 F.Supp.2d 113, 129 (N.D.N.Y.2003) (citation omitted).
In this case, Govan's Eighth Amendment claims are threefold. First, Govan claims that he was verbally abused by the defendants. Second, Govan claims that the defendants denied him medical attention after he was struck in the leg with a basketball. Third, he claims that Frese slammed him against the wall and rubbed up against him.
The defendants point out that Govan failed to date most of his allegations against the defendants. However, Govan's filed grievances clarify what occurred and when. On March 26, 1998, Govan wrote a grievance where he alleged that Frese and Rudolph verbally assaulted him. Defs.['] Ex. 2A & B. On April 24, 1998, Govan filed another grievance against Frese and Rudolph alleging that they physically assaulted him and denied him medical attention. The defendants provide Govan's medical progress notes from April 24, 1998. The medical record shows that Govan was seen at 4:00 p.m., half an hour after he states that the basketball incident occurred. Defs.['] Ex. 3C. The record shows that at 5:35 p.m., Govan had full-range of motion, and no swelling or bruising was noted. On April 28, 1998, Sgt. O'Hara's investigation report indicated that on April 24, 1998, at 9:30 p.m., Govan requested that he be allowed to withdraw the grievance that he filed against Frese. Defs.['] Ex. 3E.
*300 All of Govan's claims involving a violation of his Eighth Amendment are dismissed. His claim involving verbal abuse is without merit. As noted, a claim under 42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse. As such, Govan's claims against the defendants for verbal harassment fails to state a claim for which relief can be granted. It may well be that the defendants used language which was unprofessional and unpleasant. This alone is insufficient to show a viable constitutional violation.
Moreover, the record contradicts Govan's allegations about the defendants denying him medical treatment. The record is clear that Govan was, in fact, provided with prompt medical attention. Despite complaints of right shoulder pain, the record shows that he had a full-range of motion. Furthermore, he was not bruised or swollen. Accordingly, Govan's allegation that he was denied medical treatment is without merit, therefore summary judgment is appropriate in favor of the defendants.
Lastly, the Second Circuit has recognized that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Sims, 230 F.3d at 22. Even if this court presumed that Frese pushed him against the wall and rubbed against him, this "de minimis" use of force is insufficient to state a constitutional violation.[5] Accordingly, this court finds that summary judgment for the defendants is warranted.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that the defendants' motion for summary judgment be GRANTED in its entirety; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon the parties by regular mail.
NOTES
[1] This case is currently before this court on consent.
[2] With some necessary additions, the facts are taken from the previously issued Order (Dkt. No. 87).
[3] This court previously dismissed Dr. Weinstien, the dentist, from this action. Even if Govan is attempting to accuse the remaining defendants of failing to supervise the dentist, this allegation is conclusory and unsupported by the evidence and must fail. See e.g., Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987) (complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning).
[4] The court notes that this does not apply to the various conclusions of law contained in the defendants' 7.1 statement of material facts.
[5] In addition, Govan claims that on the same date and during the same incident, Frese made unwanted sexual advances against him. This contention does not appear on the grievance he filed on that date. The defendants contend that they were unaware of this allegation prior to Govan filing suit. Regardless, this allegation is nothing more than a conclusory allegation and must fall. See e.g., Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987).
| {
"pile_set_name": "FreeLaw"
} |
788 F.2d 5
Thompsonv.United Technologies Corp.
85-7708
United States Court of Appeals,Second Circuit.
2/19/86
1
D.Conn.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
722 S.E.2d 858 (2012)
313 Ga. App. 878
SUMNER
v.
BATCHELOR.
No. A11A1522.
Court of Appeals of Georgia.
February 3, 2012.
Karen Dove Barr, Savannah, for appellant.
Hall & Kirkland, Martha C. Hall, for appellee.
DOYLE, Presiding Judge.
This appeal arises from the trial court's denial of a motion to dismiss a petition for change of custody based on lack of jurisdiction. For the reasons that follow, we reverse the trial court's order denying the motion to dismiss.
Sherry N. Sumner and Marcus C. Batchelor received a final order of divorce in the Superior Court of Effingham County on April 2, 2009, which order awarded custody of the couple's minor children to Sumner. Thereafter, Sumner and the children moved to Chatham County. In August 2010, Batchelor filed a change-of-custody petition in the Superior Court of Effingham County. Although Batchelor's petition alleged that Sumner's last known address was a residence in Chatham County rather than Effingham County, the Superior Court of Effingham County granted Batchelor's request for ex parte relief, awarding custody of the children to Batchelor.
Sumner thereafter filed a motion to dismiss the petition and asked the court to vacate its ex parte order, which motion the trial court denied after it found that venue was proper in Effingham County based on "the best interests of the children." Sumner now appeals, arguing in her single enumeration that the trial court erred by finding that venue was proper. We agree.
"[A]fter a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child."[1] This language is clear and unequivocal,[2] and based on the face of Batchelor's petition, the Superior Court of Effingham County lacked jurisdiction to adjudicate the petition. Moreover, Sumner challenged the court's jurisdiction based on venue in her responsive pleading, and she presented ample evidence of her residence at the hearing on the matter.[3]
Accordingly, the trial court erred by finding that venue was proper in Effingham County and denying Sumner's motion to dismiss the petition on this basis, and its judgment granting custody to Batchelor is therefore void.[4]
Judgment reversed.
ELLINGTON, C.J., and MILLER, J., concur.
NOTES
[1] OCGA § 19-9-23(a).
[2] See McCall v. McCall, 246 Ga.App. 770, 772, 542 S.E.2d 168 (2000).
[3] Compare Houston v. Brown, 212 Ga.App. 834, 443 S.E.2d 3 (1994).
[4] See Hatch v. Hatch, 287 Ga.App. 832, 835(2), 652 S.E.2d 874 (2007).
| {
"pile_set_name": "FreeLaw"
} |
33 F.3d 1383
U.S.v.Chandler*
NO. 93-8866
United States Court of Appeals,Eleventh Circuit.
Aug 12, 1994
1
Appeal From: N.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36778
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 626
)
Plaintiff-Respondent, ) Filed: September 2, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
WILLIAM JESSE NORMAN, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. John P. Luster, District Judge.
Judgment of conviction and unified sentence of eight years, with a minimum
period of confinement of four years, for aggravated assault, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before LANSING, Chief Judge, GRATTON, Judge
and MELANSON, Judge
PER CURIAM
William Jesse Norman was convicted of aggravated assault, Idaho Code §§ 18-901, 18-
905, 19-2520. The district court imposed a unified sentence of eight years, with a minimum
period of confinement of four years. Norman appeals, contending that the sentence is excessive.
Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of a sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
1
722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
Therefore, Norman’s judgment of conviction and sentence are affirmed.
2
| {
"pile_set_name": "FreeLaw"
} |
444 Pa. Superior Ct. 295 (1995)
663 A.2d 790
COMMONWEALTH of Pennsylvania
v.
Rhonda JARVIS, Appellant.
Superior Court of Pennsylvania.
Submitted June 29, 1995.
Filed August 24, 1995.
Aaron C. Finestone, Philadelphia, for appellant.
*296 Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ.
CERCONE, Judge:
This is a direct appeal from a judgment of sentence entered after a bench trial. We dismiss the appeal.
The Philadelphia police arrested appellant, Rhonda Jarvis, on April 19, 1993 and charged her with murder and abuse of corpse. These charges stemmed from the death of appellant's three year old daughter, Marissa Jarvis, whose corpse was thrown out a fifth floor hotel window. Appellant filed an omnibus pre-trial motion, and requested several continuances. On August 12, 1993, the Honorable Legrome D. Davis ordered a psychiatric examination for appellant. The defense filed a supplemental omnibus motion concerning a requested competency hearing, and the case was again continued. On November 3, 1993, the Honorable Lisa A. Richette found appellant incompetent to stand trial and ordered her committed to Norristown State Hospital for sixty days. Appellant was recommitted to Norristown several times. Finally, on July 20, 1994, Judge Richette determined that appellant was competent to stand trial.
On July 27, 1994, appellant waived her right to a jury trial and entered a plea of not guilty on all charges. After conducting a non-jury trial, Judge Richette found appellant guilty of involuntary manslaughter[1] and abuse of corpse.[2] The lower court has explained the facts underlying the convictions in the following manner:
The defendant, a native of St. Louis, Missouri, arrived in Philadelphia in early April, 1993 from Milwaukee, Wisconsin where she had been staying with her sister. Accompanying her was her three year old daughter Marissa. She and the child checked into the Apollo Hotel at 1918 Arch Street, a five story structure. According to the manager of the hotel *297 the defendant had checked in a day or two before the tragedy occurred and then left for Newark, New Jersey for a few days before returning.
At about 8:30 a.m. on April 17, 1993, the manager of the Apollo Hotel heard a loud sound; the awning of the building had collapsed and on the sidewalk lay the motionless body of Marissa Jarvis. Beside her was a small plastic toy which, according to Officer Virginia Pagano, [looked] as though it had flown out of the child's hand. Superficially, the scene was designed to represent an accidental fall.
However, the testimony of the medical examiner, Dr. Ian Hood, convincingly established a totally different scenario. The child had been dead before her body hit the sidewalk. She had suffered a serious skull fracture. There were dry abrasions on her left forehead and left eye. Her body temperature at the time she arrived in the emergency room was 87 degrees, indicating that she had been dead for several hours. The fracture to her skull had been caused by a severe impact to the back of her head. According to Dr. Hood, the surface her head struck was either a wall, [a] radiator, or a headboard of a bed. The injury caused a linear fracture to the brain stem and brain; a trauma that would inevitably cause death. Dr. Hood established conclusively via slides that the fall from the window did not contribute to Marissa's death.
When she was arrested, the defendant told police investigators that Marissa wet the bed; she then hit Marissa causing her to fall on the floor between the heater and an armchair. Unable to find a heart beat, the defendant decided to stage a fake accident by placing the child's body on the window sill with her toy and then pushing her out the window.
Trial court opinion filed February 24, 1995 at 3-5 (emphasis in original; citation to notes of testimony omitted).
After entering the guilty verdicts, the lower court ordered pre-sentence and mental health evaluations for appellant. On October 26, 1994, Judge Richette sentenced appellant to serve two and one-half (2½) to five (5) years imprisonment for *298 involuntary manslaughter with a consecutive term of one (1) to two (2) years incarceration for abuse of corpse. The lower court also committed appellant to Norristown State Hospital for ninety days. On January 26, 1995, the trial court ordered appellant to complete her sentence at the S.C.I. Muncy.[3]
Appellant filed a timely notice of appeal on October 27, 1994. She raises one issue for our consideration: "Did the Lower Court abuse its discretion in imposing maximum consecutive sentences for involuntary manslaughter . . . and abuse of corpse . . . where the sentences imposed were greater than the aggravated range of the Sentencing Guidelines, the Defendant had no prior criminal record, the Defendant completed what would have been a Guidelines sentence by the date of sentencing, and the Defendant needed mental health treatment?" Appellant acknowledges that this claim goes to the discretionary aspects of sentencing, not to the legality of the sentence.
As an initial matter, we note that appellant never filed a post-sentence motion requesting reconsideration/modification of sentence. The version of Rule of Criminal Procedure 1410 applicable to determinations of guilt which have occurred after January 1, 1994 does not dispense with the need to preserve challenges to the discretionary aspects of a sentence by means of such a motion. Although the new rule characterizes a motion to modify sentence as "optional," the rule plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved for appeal in the absence of a post-trial motion. Pa.R.Crim.P., Rule 1410B(1)(c), 42 Pa.C.S.A. The modifications to Rule 1410 have not altered the requirement of Rule of Appellate Procedure 302 which states that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. See Commonwealth v. Krum, 367 Pa.Super. 511, 513-15, 533 A.2d 134, 135-36 (1987) (en banc) (issues not going to the legality of a sentence are waived if they have not been raised via oral or written motion *299 to modify sentence prior to appeal). Because appellant never provided the trial judge with the opportunity to reconsider or modify sentence, this issue is waived. Appellant may not challenge the discretionary aspects of her sentence for the first time on appeal.[4]
Appeal dismissed.
NOTES
[1] 18 Pa.C.S.A. § 2502.
[2] Id. at § 5510.
[3] The transfer to Muncy was made conditional on appellant's medication being made available to her at the State Correctional Institution.
[4] We are cognizant of the fact that defense counsel must have signified in some unspecified manner to the trial court that he disapproved of the sentence at issue here. At appellant's sentencing hearing, Judge Richette explained that she was going to impose the maximum term possible "despite [defense counsel's] objections." N.T. 10/26/95 at 3. However, the nature of counsel's disapproval and the form the "objections" took is not a matter of record in this case. We have meticulously scrutinized the certified record and find it devoid of any other indication that appellant found the sentence unacceptable until she lodged her notice of appeal with this court.
The Comment to Rule 1410 clearly states that issues raised at the sentencing proceeding need not, but may, be raised in a motion to modify sentence in order to preserve them for appeal. The Comment specifically cautions that counsel should carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues. See R.Crim.P., Rule 1410, 42 Pa.C.S.A., Comment (Miscellaneous) ¶ 6. It suffices to state that the record was inadequate in this case to preserve appellant's discretionary challenge.
| {
"pile_set_name": "FreeLaw"
} |
30 F.3d 129
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.Joseph Marion HEAD, Jr., Plaintiff Appellant,v.Robert HARRIS; Robert W. Wolf, Defendants Appellees.
No. 94-6528.
United States Court of Appeals, Fourth Circuit.
Submitted June 23, 1994.Decided July 26, 1994.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-94-234)
Joseph Marion Head, Jr., Appellant Pro Se.
E.D.N.C.
AFFIRMED.
Before MURNAGHAN and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:
1
Appellant appeals from the district court's order denying relief on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Head v. Harris, No. CA-94-234 (E.D.N.C. Apr. 14, 1994). 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. The motion for appointment of counsel is denied.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
179 F.Supp. 470 (1959)
David L. MATTHEWS and Mary Ann Matthews, Plaintiffs
v.
Harold W. HANDLEY, Governor of the State of Indiana, et al., Defendants.
Civ. No. 2540.
United States District Court N. D. Indiana, South Bend Division.
June 13, 1959.
David L. Matthews, pro se; Louis Anderson, Robert K. Rodibaugh, Harry Heppenheimer, Edward V. Minczeski, South Bend, Ind., for plaintiffs.
Edwin K. Steers, Atty. Gen., State of Indiana, for State defendants and Gerald Kamm, for Wm. J. Locks, Sheriff St. Joseph County.
Before KNOCH, Circuit Judge, and SWYGERT and GRANT, District Judges.
GRANT, District Judge.
Plaintiffs herein have filed a petition praying for a declaratory judgment and for an injunction.
The petition alleges that this Court has jurisdiction under the Civil Rights Act, 42 U.S.C.A. § 1981 et seq., and alleges a violation of Federal and State constitutional rights. Plaintiffs further allege that defendants, as the Governor, other officials of the Executive Department of the State of Indiana, and the Sheriff of St. Joseph County, Indiana, *471 are threatening and attempting to collect from plaintiffs a gross income tax for the year 1955. Plaintiffs further allege that as citizens of the State of Indiana they have the right to have the entire membership of the Indiana Legislature reapportioned, as provided in the State Constitution:
"The General Assembly shall, at its second session after the adoption of this Constitution, and every sixth year thereafter, cause an enumeration to be made of all the male inhabitants over the age of twenty-one years." Const. art. 4, § 4.
The petition alleges that the last reapportionment of the senatorial and representative districts was in 1921, and that in the absence of reapportionment since the year 1927 the subsequent acts of the Legislature are void and any action on the part of the defendants to collect this tax will be in deprivation of plaintiffs' constitutional rights. Plaintiffs pray that the Indiana Gross Income Tax Law of 1933, as amended, Burns' Ann.St. § 64-2601 et seq., be declared unconstitutional and that defendants be restrained from collecting, or attempting to collect the tax from plaintiffs.
Defendants herein have filed a motion to dismiss. Briefs have been filed and oral argument has been heard by this Court.
Historically, since the dawn of Courts of Equity in our Anglo-American system of jurisprudence, it has been held that Courts of Equity will not act in such a circumstance as here when adequate legal remedies exist. Plaintiffs have an adequate legal remedy available. Plaintiffs are asking this Court to concern itself with a purely State political question. The plaintiffs have the power of the ballot to correct any unrealistic apportionment of the State Legislature which might exist.
It is admitted that the Legislature has failed to reapportion the legislative districts as provided in the Indiana Constitution. No attempt is made here to defend this flagrant disregard of the plain, constitutional provision. However, the Federal Government is a body politic of strictly limited powers. The powers which were not specifically delegated to the Federal Government were reserved to the sovereign States of the Union.
We are here concerned with two, distinct, sovereign bodies: the State of Indiana and the United States of America. As stated above, we are here presented with a State political question in which the plaintiffs seek to invoke the Equity jurisdiction of this Federal Court. This Court has no jurisdiction to determine this question as the plaintiffs have adequate remedies at law available to them, and, what is more important, the Federal sovereignty must not and shall not invade this bulwark of State sovereignty. Perry v. Folsom, D.C., 144 F.Supp. 874.
Defendants' Motion to Dismiss is hereby granted.
| {
"pile_set_name": "FreeLaw"
} |
98 N.E.2d 8 (1951)
155 Ohio St. 61
STANDARD OIL CO.
v.
GLANDER, Tax Com'r et al.
No. 32060.
Supreme Court of Ohio.
March 14, 1951.
*10 McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett and Rufus S. Day, Jr., all of Cleveland, for appellant.
Herbert S. Duffy, Atty. Gen. and Donald B. Leach, Columbus, for appellee, Tax Commissioner.
MATTHIAS, Judge.
The appellant has assigned numerous errors with respect to each of the two appeals considered by the Board of Tax Appeals and which the board determined adversely to appellant. These assignments have been summarized in the brief of the appellant and will be discussed in the order therein stated.
The first questions of law presented are: Did the state of Ohio have jurisdiction, under Section 5325, General Code, to assess *11 taxes for the years 1945 and 1946 upon certain boats and barges of the company which were not in use in Ohio and the use of which in waters bordering on Ohio was insubstantial, and is such assessment violative of the Fourteenth Amendment of the Constitution of the United States?
The record discloses that in its 1945 personal property tax return the appellant listed three towboats and 31 barges at a depreciated book value of $1,017,518, and in 1946 listed boats and barges having a depreciated book value of $726,733. The Tax Commissioner on audit raised the valuation of the boats and barges for 1945 to a true value of $1,322,863 and raised the valuation for 1946 to a true value of $1,303,907. Thereafter, within time, the appellant filed its application for review and redetermination for 1945 and 1946, contending, first, that its crude oil boats and barges, which carried crude oil from various points on the Mississippi river, up the Mississippi and Ohio rivers, to points in Indiana and Kentucky, were not taxable in Ohio under Section 5325, General Code, for the reason that they were not used in Ohio and their use in waters bordering on Ohio was insubstantial and, therefore, taxation of these boats and barges by the state was violative of the due process clause of the Fourteenth Amendment of the United States Constitution.
The crude oil boats and barges involved constituted the greater part of the valuation upon which the taxes assessed were based. The remainder of the assessed value represented gasoline boats and barges engaged in transporting gasoline to various points in Ohio. These latter boats and barges are not involved in the controversy.
The contentions of the appellant were rejected in their entirety by the Tax Commissioner on review and redetermination. Upon appeal the Board of Tax Appeals held that, under Section 5325, General Code, with the exception of one small boat valued at $3,500, the oil boats and barges of the appellant were taxable in Ohio. The board announced that, being an administrative tribunal, it had no jurisdiction to decide the constitutional question presented.
The facts upon which the appellant bases its claim of want of jurisdiction of the state to levy such tax are as follows:
These crude oil boats and barges, during 1944 and 1945, were engaged in transporting oil from various points on the lower Mississippi river to Mount Vernon, Indiana, and Bromley, Kentucky. The crude oil unloaded at Mount Vernon, Indiana, was moved from that point by pipe line to various destinations, and the oil unloaded at Bromley, Kentucky, was likewise moved to the appellant's refinery at Latonia, Kentucky.
The appellant introduced evidence to show the number of miles traversed and the number of barrels of oil carried by each boat on each routing during the years 1944 and 1945. This evidence showed that the greater bulk of the operation of these boats during each year was over three routesMemphis, Tennessee, to Mount Vernon, Indiana, Memphis, Tennessee, to Bromley, Kentucky, and Baton Rouge or Gibson, Louisiana, to Bromley, Kentucky; and that of the total river-route mileage traversed by the appellant's crude oil boats and barges from the lower Mississippi river to Bromley, Kentucky, only 17½ miles was through waters bordering on the state of Ohio.
In an attempt to arrive at a percentage figure the appellant computed these activities on a basis of "barrel miles" (number of miles multiplied by number of barrels carried) and found that the percentage of barrel miles on the portion of the river bordering on Ohio was, in 1944 and 1945, 1.27 per cent of the total barrel miles. It is claimed that none of the barrel miles was actually within the state of Ohio since its border is the low water mark on the Ohio side of the river and the boats and barges were operated south of the border.
These crude oil boats and barges were registered from Cincinnati but, except for short stops for food, fuel, or minor repairs, never were docked at Cincinnati, all repairs being made at Paducah, Kentucky, St. Louis, Missouri, or some other down-river point. No cargoes were ever taken on at Cincinnati during the years 1944 and 1945.
*12 The appellant contends that, even if the company's crude oil boats and barges were constitutionally within Ohio's jurisdiction, Section 5325, General Code, should not be so construed as to authorize taxation thereof.
Section 5328, General Code, provides in part as follows: "All ships, vessels and boats, and shares and interests therein, defined in this title as `personal property,' belonging to persons residing in this state, and aircraft belonging to persons residing in this state and not used in business wholly in another state, shall be subject to taxation."
Section 5325, General Code, defines "personal property" as follows: "* * * every ship, vessel, or boat, of whatsoever name or description, used or designed to be used either exclusively or partially in navigating any of the waters within or bordering on this state, whether such ship, vessel, or boat is within the jurisdiction of this state or elsewhere, and whether it has been enrolled, registered, or licensed at a collector's office, or within a collection district within this state, or not."
The appellant contends that its boats would be taxable in Ohio only if they were "used or designed to be used exclusively or partially in navigating any waters within or bordering on this state"; that, since the boats and barges were being used exactly as "designed," the only question under the statute is whether the actual use made of the boats and barges during the years in question brought them within the provisions of the statute.
The company contends that although this statute purports to tax boats operating in waters bordering on Ohio, it should not be construed to apply to boats whose use in waters within or bordering on Ohio was insubstantial. This contention is based upon the maxim, de minimis non curat lex. The decision of the Supreme Court of the United States in the case of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, is cited in support of that contention. That case involved portal to portal pay.
Both the Tax Commissioner and the Board of Tax Appeals refused to adopt that interpretation of Section 5325, General Code. We quote from the decision of the Board of Tax Appeals:
"Section 5366, General Code, characterizes as `taxable property' all the kinds of property mentioned or referred to in the above quoted provisions of Section 5328, General Code. Section 5371, General Code, provides generally that personal property used in business shall be listed and assessed in the taxing district in which such business is carried on. This section, however, further provides as follows:
"`Ships, vessels, boats and aircraft, and shares and interests therein, shall be listed and assessed in the taxing district in which the owner resides.' Inasmuch as it appears that at all of the times here in question these boats and barges were used in part in navigating the waters of the Ohio river bordering on this state, such boats and barges as the property of the appellant, an Ohio corporation having its domicile in this state, were clearly taxable under the expressed terms of the above noted statutory provisions."
We are in accord with that statement for it clearly appears that under the facts disclosed by the record such crude oil boats and barges were not used exclusively in another state and, therefore, came within the provisions of Section 5328, General Code.
Since these crude oil boats and barges came within the provisions of Sections 5325 and 5328, General Code, the contention of the appellant that the boats and barges were not within the jurisdiction of the state of Ohio for tax purposes becomes pertinent. The appellant contends that tangible personal property is not constitutionally subject to multiple taxation and, therefore, is taxable only by the state in which it has its situs. Further, appellant contends that under the decision of the Supreme Court of the United States in the recent case of Ott, Comm'r v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, river boats are subject to taxation only in accordance with *13 the rule of proportionate taxation heretofore applied in the taxation of the rolling stock of railroads. This contention requires an examination of that case for if it is applicable to the boats and barges owned by the appellant, there is now no provision in the laws of Ohio under which they may be taxed.
The facts in the Ott case, supra, are set forth in the opinion, as follows:
"Appellees are foreign corporations which transport freight in interstate commerce up and down the Mississippi and Ohio Rivers under certificates of public convenience and necessity issued by the Interstate Commerce Commission. Each has an office or agent in Louisiana but its principal place of business is elsewhere. The barges and towboats which they use in this commerce are enrolled at ports outside Louisiana; but they are not taxed by the states of incorporation.
"In the trips to Louisiana a tugboat brings a line of barges to New Orleans where the barges are left for unloading and reloading. Then the tugboat picks up loaded barges for return trips to ports outside that state. There is no fixed schedule for movement of the barges. But the turnarounds are accomplished as quickly as possible with the result that the vessels are within Louisiana for such comparatively short periods of time as are required to discharge and take on cargo and to make necessary and temporary repairs.
"Louisiana and the City of New Orleans levied ad valorem taxes under assessments based on the ratio between the total number of miles of appellees' lines in Louisiana and the total number of miles of the entire line. The taxes were paid under protest and various suits, which have been consolidated, were instituted in the District Court by reason of diversity of citizenship for their return, the contention being that the taxes violated the Due Process Clause of the Fourteenth Amendment and the Commerce Clause."
Following the citation and analysis of the cases wherein the court had evolved the rule that vessels are taxable solely at the domicile of the owners, save where they had acquired an actual situs elsewhere, the Supreme Court of the United States concluded as follows:
"We see no practical difference so far as either the Due Process Clause or the Commerce Clause is concerned whether it is vessels or railroad cars that are moving in interstate commerce. The problem under the Commerce Clause is to determine `what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.' Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254 [1255]. So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing state. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed., 267 [270], 130 A.L.R. 1229. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.
"There is such an apportionment under the formula of the Pullman [Palace-Car Co. v. Com. of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613] case. Moreover, that tax, like taxes on property, taxes on activities confined solely to the taxing State, or taxes on gross receipts apportioned to the business carried on there, has no cumulative effect caused by the interstate character of the business. Hence there is no risk of multiple taxation. Finally, there is no claim in this case that Louisiana's tax discriminates against interstate commerce. It seems therefore to square with our decisions holding that interstate commerce can be made to pay its way by bearing a nondiscriminatory share of the tax burden which each State may impose on the activities or property within its borders. See Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 255, 58 S.Ct. 546, 548, 82 L.Ed. 823 [826, 827], 115 A.L.R. 944, and cases cited. We can see no reason which should put water transportation on a different constitutional footing than other interstate enterprises."
As hereinbefore stated, the question before the Supreme Court of the United *14 States in the Ott case was whether the state of Louisiana and the city of New Orleans could levy ad valorem taxes based upon a mileage percentage figure. The appellant in the instant case contends that that decision has the effect of substituting a new formula for the long established rule of taxation whereby states, wherein the owners of watercraft are domiciled, can tax such boats to their full value as other personal property so owned is taxed. It is to be noted, however, that this conclusion must be reached by inference from the language used in the Ott case. It is not within the scope of the facts there presented or the decision rendered thereon.
Other recent decisions of the Supreme Court of the United States are more directly in point; cases in which that court recognized the right of the domiciliary state to levy the full ad valorem tax on personal property passing through other states in interstate commerce.
In the case of Northwest Airlines, Inc., v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 951, 88 L.Ed. 1283, the question presented was stated by Mr. Justice Frankfurter, as follows: "The question before us is whether the Commerce Clause or the Due Process Clause of the Fourteenth Amendment bars the State of Minnesota from enforcing the personal property tax it has laid on the entire fleet of airplanes owned by the petitioner and operated by it in interstate transportation. The answer involves the application of settled legal principles to the precise circumstances of this case. To these, about which there is no dispute, we turn."
The pertinent facts therein were as follows:
"Northwest Airlines is a Minnesota corporation and its principal place of business is St. Paul. It is a commercial airline carrying persons, property and mail on regular fixed routes, with due allowance for weather, predominantly within the territory comprising Illinois, Minnesota, North Dakota, Montana, Oregon, Wisconsin and Washington. For all the planes St. Paul is the home port registered with the Civil Aeronautics Authority, under whose certificate of convenience and necessity Northwest operates. At six of its scheduled cities, Northwest operates maintenance bases, but the work of rebuilding and overhauling the planes is done in St. Paul. Details as to stopovers, other runs, the location of flying crew bases and of the usual facilities for aircraft, have no bearing on our problem.
"The tax in controversy is for the year 1939. All of Northwest's planes were in Minnesota from time to time during that year. All were, however, continuously engaged in flying from State to State, except when laid up for repairs and overhauling for unidentified periods. On May 1, 1939, the time fixed by Minnesota for assessing personal property subject to its tax (Minn. Stat.1941, § 273.01), Northwest's scheduled route mileage in Minnesota was 14% of its total scheduled route mileage, and the scheduled plane mileage was 16% of that scheduled. It based its personal property tax return for 1939 on the number of planes in Minnesota on May 1, 1939. Thereupon the appropriate taxing authority of Minnesota assessed a tax against Northwest on the basis of the entire fleet coming into Minnesota. For that additional assessment this suit was brought. The Supreme Court of Minnesota, with three judges dissenting, affirmed the judgment of a lower court in favor of the State. [State v. Northwest Airlines, Inc.,] 213 Minn. 395, 7 N.W.2d 691. A new phase of an old problem led us to bring the case here. [Northwest Airlines, Inc., v. State of Minnesota,] 319 U.S. 734, 63 S.Ct. 1157, 87 L.Ed. 1695."
In holding that the state of Minnesota was authorized to levy a tax upon "all personal property of persons residing therein, including the property of corporations", the court reviewed its decisions in previous cases and held that the doctrine of tax apportionment for instrumentalities engaged in interstate commerce introduced in Pullman's Palace Car Co. v. Com. of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613, was inapplicable. Relying on the case of People of State of New York ex rel. New York Central & Hudson River *15 Rd. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155, the court stated: "Here, as in that case, a corporation is taxed for all its property within the State during the tax year none of which was `continuously without the state during the whole tax year.' * * * The fact that Northwest paid personal property taxes for the year 1939 upon `some proportion of its full value' of its airplane fleet in some other States does not abridge the power of taxation of Minnesota as the home State of the fleet in the circumstances of the present case."
It is to be noted that the Northwest Airlines case was mentioned in the opinion in the Ott case, but it was neither modified nor limited in any way. In its essential facts the Northwest Airlines case is similar to the instant case. It involved a tax by the domiciliary state whereas the Ott case involved the validity of a tax by a state other than the domiciliary state. We do not believe the Northwest Airlines case and the Ott case are in conflict. The Supreme Court of the United States applied the rule to the taxation of tangible personal property which it had theretofore applied to the taxation of intangible personal property, that is, that such property may be taxed both at its domiciliary situs and at the place where it had acquired a business situs.
It is pertinent to note that in the instant case we are not considering the taxation of the property of a public utility engaged in interstate transportation but rather the taxability of property of a domestic corporation which operated both within and beyond the limits of this state. Further, since the company here is not a public utility, there is no provision under the statutes of this state for the establishment of any mileage, barrel mileage, time period or other arbitrary classification, and this court is entirely without authority to select any apportionment method and adopt it as the correct applicable principle. That is purely a legislative function and, as hereinbefore stated, if the tax levied is unconstitutional it follows that there is no liability therefor whatever. The record does not disclose that any other state taxed these boats and barges, although there is an inference that Kentucky is now asserting its right to do so. We conclude that the levying of the tax in question was not violative of the Fourteenth Amendment of the Constitution.
We come now to the question of machinery and equipment in process of construction.
The company included no machinery in process of construction in its personal property tax returns for the years 1943, 1944, 1945 and 1946, claiming such property was not taxable. The Tax Commissioner, on audit for those years, found such machinery to be taxable and added to the assessment certificate for 1943 and 1944 the value, at book cost, of the unfinished Houdry catalytic cracking plant, assessed the machinery in each of those years at 50 per cent of cost and allowed a further reduction in book cost of 12 per cent, because he found that book cost exceeded the "true value" by such percentage.
The unfinished Houdry plant was the only machinery in process of construction involved in the 1943 and 1944 assessment, and the plant was completed by January 1, 1945. However, in the tax years 1945 and 1946, the company had other machinery, the bulk of which constituted an unfinished thermal gas plant located at Cleveland. The Tax Commissioner added these to the tax assessment certificate for the years 1945 and 1946, valuing them at 50 per cent of the book value.
The company contends that such machinery was not taxable in any of those years and that the Houdry plant should have been given a reduced valuation by reason of the excessive cost of construction on account of war emergency conditions existing at the time of the erection of that plant and of obsolescence.
The Tax Commissioner held that the machinery in process of construction was "used in business" within the definition of that term in Section 5325-1, General Code. The pertinent part of that section reads as follows: "Within the meaning of the term `used in business,' occurring in this title, personal property shall be considered to be `used' when employed or utilized in connection *16 with ordinary or special operations, when acquired or held as means or instruments for carrying on the business, when kept and maintained as a part of a plant capable of operation, whether actually in operation or not, or when stored or kept on hand as material, parts, products or merchandise * * *."
The Board of Tax Appeals held that the clause, "when kept and maintained as a part of a plant capable of operation, whether actually in operation or not," covers machinery in process of construction.
The company and the Tax Commissioner are in disagreement as to the meaning of the words, "kept," "maintained" and "part of a plant capable of operation," disclosing that the limited language used in this section in defining "used in business" requires our consideration.
It is the contention of the company that the words, "kept and maintained," as applied to the machinery herein, contemplate machinery completed and operative, since machinery is not maintained until it first has been completely constructed. The Tax Commissioner ascribes to the words a broader meaning which includes retaining possession of the machinery, and asserts that its retention and prevention of corrosion and other deterioration constitute "maintaining" within the definition of the term.
Much more divergence of view occurs when the parties hereto define the word, "plant." The company defines the word, "plant," as including only the Houdry catalytic cracking plant and the Thermal cracking plant and claims that, since each of these, of itself, was machinery in process of construction for the tax years in question, it necessarily could not be "part of a plant capable of operation," for it was not completed.
In the view of the Tax Commissioner the "plant" consisted of the entire operating refinery and included its many operating units among which were the Houdry catalytic cracking plant and the Thermal cracking plant, and consequently these units, even while under construction, were parts of a "plant capable of operation."
The Board of Tax Appeals, in construing Section 5625-1, General Code, supra, made the following observation: "It is to be observed however that the above noted provisions of Section 5325-1, General Code, were not enacted with special reference to either appellant's refineries at Cleveland or elsewhere or to petroleum refineries generally in this state. And in this view recognition must be given to the general definition that in an industrial or commercial sense, a `plant' includes real estate and all else that represents capital invested in the means of carrying on a business, exclusive of raw material or the manufactured product. This leads to the conclusion that as to the refinery property of the appellant each refinery as a whole at its location in Cleveland or elsewhere is `a plant' within the meaning of Section 5625-1, General Code. Inasmuch as each unfinished item or [sic] machinery and equipment here in question was a part of a refinery or `plant' capable of operation and in actual operation and was kept and maintained as such, it was property `used' and `used in business' within the meaning of the taxing statutes here under consideration."
In our view such application of Section 5625-1, General Code, is in accord with the well established rule that words of a statute, in common use or other than terms of art or science, will be construed in their ordinary acceptation and significance and with the meaning commonly attributed to them. Mutual Bldg. & Investment Co. v. Efros, 152 Ohio St. 369, 89 N.E.2d 648.
The following statement from 37 Ohio Jurisprudence, 546, Section 290, is pertinent: "Courts should be slow to impart any other than their natural and commonly understood meaning to terms employed in the framing of a statute. Too narrow a construction of terms is not favored. Statutory phraseology should not be given an unnatural, unusual, strained, arbitrary, forced, artificial, or remote meaning which may, in its last analysis, be technically correct but wholly at variance with the common understanding of men. A technical construction of words in common use is to be avoided."
*17 We hold that the decision of the Board of Tax Appeals that the Houdry catalytic cracking plant and the Thermal cracking plant, although under construction, constituted machinery "kept and maintained as a part of a plant capable of operation" was not unreasonable or unlawful.
Having determined that the Houdry plant, with other machinery, was subject to taxation while in the process of construction, the question directly presented is whether the valuation thereof by the commissioner, as corrected and modified by the Board of Tax Appeals, constituted the true value thereof.
The principal contention of the company as to assessed value relates to the Houdry catalytic cracking plant. That plant was a war project and was constructed to produce aviation gasoline much needed during the war, and because of the urgent need for and shortage of such fuel the company necessarily expended large sums of money in overtime wages and for required materials, with a result that the plant cost $2,419,102.-76 more to construct than the estimate furnished by the construction company. Both the company and the Tax Commissioner agree that the part of such "overrun," or excessive cost of construction, which did not add value to the property, should be eliminated from the assessed value thereof. The difference between the parties in that regard is primarily one of factthe company urging that the amount of "overrun" should be $1,423,852, whereas the Tax Commissioner held it to be $977,777.
On appeal, the Board of Tax Appeals fixed the amount of such excess costs at $1,200,000. The company contends that, on a percentage basis, the book value should be reduced by 15.64 per cent. The Board of Tax Appeals made this percentage 13.18 per cent of cost. These figures, of course, involve the value of the plant as completed but are likewise applicable to the plant when under construction in 1943 and 1944. These percentages were used by the Board of Tax Appeals, together with a depreciation allowance for the years it was used after completion, resulting in a valuation for tax year 1943 at $377,580, 1944, $5,399,459, 1945, $6,593,502 and 1946, $5,899,439.
The company contends that the figure arrived at by the Board of Tax Appeals not only failed to give sufficient allowance for the excess cost of construction or "overruns" but also made inadequate allowance for obsolescence of the Houdry catalytic cracking plant which it contends became partially obsolete at the termination of the war because the process of catalytic cracking had been replaced by more efficient methods.
The Houdry plant consisted of several units, which were a six-case unit, a three-case unit and foundations for another three-case unit which has never been constructed. The record discloses that the three-case unit was originally built as a special attachment to the six-case basic Houdry unit to assist the six-case unit in producing as large a quantity of high octane gasoline as possible during the war. Its function was to treat oil, which had been partly processed in the six-case unit, in such manner as to step up its octane rating for aviation purposes. That use terminated with the war, and the only use of the three-case unit during the year 1946 was in the manufacture of motor gasoline.
The record discloses that the three-case unit was inefficient in operation, not yielding as large a percentage of motor fuel from the oil processed as the larger regularly designed unit, resulting in a higher cost of operation.
The company claims that in the year 1946 it was entitled to a deduction from the value of this Houdry plant in the sum of $1,292.077 for obsolescence of the threecase unit and for the foundation of the three additional cases which were never built. The Board of Tax Appeals did regard the base for the additional cases as to some extent idle equipment and consequently reduced the value thereof from $135,000 to $13,500, but refused to allow any reduction by reason of the claimed obsolescence of the three-case unit. The board considered it as a part of the Houdry catalytic cracking plant as a whole and as an operating *18 unit thereof and applied to it the same rate of reduction for depreciation and overrun as were determined applicable to the remainder of the plant.
Evidence in the record supports the determination of the Board of Tax Appeals that the "overruns" totaled $1,200,000, and its decision in that respect was not unreasonable or unlawful. However, the refusal of the Board of Tax Appeals to make some allowance for obsolescence of the threecase unit was unreasonable and unlawful in that the Board of Tax Appeals failed to apply the principles established by this court in the case of B. F. Keith Columbus Co. v. Board of Revision of Franklin County, 148 Ohio St. 253, 74 N.E.2d 359. The syllabus of that case provides as follows:
"1. In determining the value of property for the purpose of taxation, the assessing body must take into consideration all factors which affect the value of the property.
"2. Functional depreciation occurs where property, although still in good physical condition, has become obsolete or useless due to changing business conditions and thus for all practical considerations is of little or no value to the owner of such property.
"3. Where the evidence shows that, due to a change of business conditions, property has become obsolete, it is unreasonable for the assessing body not to consider this factor of functional depreciation in arriving at the tax value."
The facts in regard to the limited use of this three-case unit were not in dispute and require some allowance for the disclosed obsolescence. The failure of the Board of Tax Appeals to make such determination renders their decision as to the value of the Houdry plant for the year 1946 unreasonable and unlawful and requires a reversal of the order in that regard and a remand to the board for the redetermination of the correct true value of such plant for the year 1946.
At the conclusion of the proceeding before the Board of Tax Appeals, an application for rehearing was filed by the company wherein it protested the failure of the board to reduce the value of the machinery and equipment in the full amount of the excess valuation theretofore determined by it.
For the year 1945 the company failed to file a claim for deduction from book value (form 902) for the taxable property of the company, as disclosed by its inter-county return, so that, when the machinery in process of construction (the thermal plant) was added to the return, the sum of all the property listed exceeded the book values originally returned in the inter-county tax return by the sum of $561,027.
When the Tax Commissioner determined that the excess cost of construction or "overrun" on the Houdry plant was $988,000, he allowed only the sum which the true valuations as determined exceeded the listed book values, or a reduction in the sum of $561,027. The company contends that since all such property was in Cuyahoga county wherein the true value of the property found exeeded the book value by the sum of $900,002, the latter sum should have been allowed.
However, the company having concededly paid taxes on a basis in excess of the book values of personal property in Cuyahoga county as stated in its inter-county tax return, the Board of Tax Appeals held that as to the year 1945 any question of reducing the assessed tax values below those on which the company had paid the tax was moot and should not be considered, and allowed no reduction.
The company contends that the payment of the tax on the higher basis shown by the return did not render the question involved moot, but on the contrary the reduction should have been allowed because the classified tax law permits the refund to a taxpayer of a tax he has already paid but which, on appeal, is held not to have been owed. That contention is based on the provisions of Section 5395, General Code, which provides in part as follows: "Excepting as to any taxable property concerning the assessment of which an appeal has been filed under section 5611 of the General Code, the tax commissioner may finally assess the taxable property required to be returned *19 by any taxpayer * * * for any prior year or years within the time limited therefor in section 5377 of the General Code * * *." (Emphasis supplied.)
The Board of Tax Appeals in its decision admits, in effect, that the taxpayer was entitled to a reduction in valuation in the sum of $900,002, but states, in effect, that, because the appeal was determined after the time for issuance of the final assessment certificate by the Tax Commissioner had expired and the tax had been paid, such reduction would be ineffective. The payment of the tax when due to avoid interest and penalties and when accompanied by a proper appeal protects all the taxpayer's rights until all administrative and judicial review thereof is completed.
Where a taxpayer is required by law to file an inter-county return he is not thereby precluded from claiming the rights of a taxpayer filing a return in a single county. Wright Aeronautical Corp. v. Glander, Tax Comm'r, 151 Ohio St. 29, 84 N.E.2d 483, distinguished.
The decision of the Board of Tax Appeals is not unreasonable or unlawful except as to its refusal to make proper allowance for obsolescence in the year 1946 and its refusal to grant the taxpayer proper reduction to book values for the year 1945 as above indicated.
The cause is accordingly remanded to the Board of Tax Appeals for further proceeding in acordance with this opinion.
Decision affirmed in part and reversed in part.
WEYGANDT, C. J., and ZIMMEMAN and HART, JJ., concur.
STEWART and TAFT, JJ., concur, except in paragraph two of the syllabus and the portion of the opinion relating thereto.
MIDDLETON, J., not participating.
TAFT, Judge (concurring).
I have considerable doubt about paragraph two of the syllabus. However, I reach the same result on another ground. The Houdry plant, even before it was "capable of operation," was at that time "acquired or held as means or instruments for carrying on the business" within the meaning of the words found in Section 5325, General Code. At that time, the Houdry plant might not be so "held" but it was so "acquired." The words "acquired or held" are in the disjunctive.
STEWART, J., concurs in the foregoing concurring opinion.
| {
"pile_set_name": "FreeLaw"
} |
Order Michigan Supreme Court
Lansing, Michigan
May 29, 2018 Stephen J. Markman,
Chief Justice
156136 & (14)(15) Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Kurtis T. Wilder
Plaintiff-Appellee, Elizabeth T. Clement,
Justices
v SC: 156136
COA: 337347
Wayne CC: 11-009271-FC
JERMAR WYNEAL GIBSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the May 25, 2017 order
of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The
motion for an evidentiary hearing and the motion for a Ginther hearing are DENIED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 29, 2018
d0521
Clerk
| {
"pile_set_name": "FreeLaw"
} |
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOEL BUCHWALD, in his capacity as the
Executor of the Estate of ARTHUR
BUCHWALD,
Plaintiff,
Civil Action No. 13-cv-210 (RLW)
v.
CITIBANK, N.A.,
Defendant.
MEMORANDUM OPINION 1
I. INTRODUCTION
Previously, this Court granted Defendant Citibank, N.A.’s (Citibank) motion to dismiss
against Plaintiff Joel Buchwald (Buchwald), in his capacity as executor of the estate of his late
father, the writer Art Buchwald. Buchwald now moves this Court to amend the judgment and
for leave to file an amended complaint, which adds an additional count and supplements the
facts. (See generally Dkt. No. 11). Because this Court made no error in its previous decision,
the motion to amend will be denied, and accordingly, Buchwald’s motion for leave to file an
amended complaint is denied as well.
1
This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential
future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court
has designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this
opinion by counsel. See FED. R. APP. P. 32.1. Nonetheless, as stated in the operational
handbook adopted by our Court of Appeals, “counsel are reminded that the Court’s decision to
issue an unpublished disposition means that the Court sees no precedential value in that
disposition.” D.C. Circuit Handbook of Practice and Internal Procedures 43 (2011) (citation
omitted).
1
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
II. FACTUAL SUMMARY
A. Background
In the 1980s, Art Buchwald retained Kenneth Starr (Starr) and his firms Starr and
Company, LLC (Starrco) and/or Starr Investment Advisors, LLC (SIA), to provide financial
services. (Dkt. No. 1-4, ¶ 4). 2 Art Buchwald owned a residence in Martha’s Vineyard. (Id. ¶
10). In late 2006, his health was in serious decline; he would die on January 17, 2007. (Id. ¶¶
3, 11). “By November 1, 2006 . . . Starr and his employees, Arlene Graff and Patricia Dorn
had obtained the approval of Citibank to open a HELOC [home equity line of credit] on the
Martha’s Vineyard Property. [Art] Buchwald was not aware of, and certainly had not
approved, of the application for the HELOC.” (Id. ¶ 13). The HELOC states it “will be
governed by the law of the state where the Property is located,” i.e., Massachusetts. (Dkt. No.
6-2, at 8 (§ 23)).
Around November 29, 2006, Graff and Dorn prepared a “Massachusetts General
Durable Power of Attorney” that “purports to effect the appointment by [Art] Buchwald of
Dorn as his attorney-in-fact.” (Dkt. No. 1-4, ¶ 14). Among other things, the Power of
Attorney states that it was executed in Massachusetts, that it “will be governed by the laws of
the Commonwealth of Massachusetts without regard for conflicts of law principles,” and that
Art Buchwald “agree[s] to indemnify [any] third party for any claims that arise against the
third party because of reliance on this power of attorney.” (Dkt. No. 6-1, at 6). However, Art
Buchwald did not execute the Power of Attorney, and it has an invalid date. (See Dkt. No. 1-4,
¶¶ 15, 21). The Power of Attorney “was, in effect, an attempt to retroactively authorize the
creation of an account that was originated without any authority.” (Id. ¶ 23). Citibank
2
For the purposes of this Memorandum Opinion, the facts as alleged by Buchwald are
assumed to be true.
2
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
advanced $100,000 to Dorn between December 11, 2006 and January 19, 2007; neither Art
Buchwald, nor his estate, ever received any of the money. (Id. ¶¶ 24, 28). Citibank states that
the Power of Attorney “was publically recorded with the mortgage supporting the HELOC . . .
on January 18, 2007.” (Dkt. No. 6, at 5).
After Art Buchwald’s death in 2007, the Probate Division of the Superior Court of the
District of Columbia appointed Starr executor of his estate. (Dkt. No. 1-4, ¶ 29). Around June
2010, the United States charged Starr in an Indictment with fraud, wire fraud, and money
laundering. See United States v. Starr, No. 10-cr-520 (SAS), Dkt. No. 71 (S.D.N.Y. 2011).
Shortly thereafter, Art Buchwald’s son, Plaintiff Joel Buchwald, successfully petitioned the
Probate Division to succeed Starr as executor, and assumed that role on January 7, 2011. (See
Dkt. No. 1-4, ¶ 31).
B. Procedural History
Joel Buchwald learned of “the scheme perpetrated by Starr and his associates to extract
funds by means of the fraudulent HELOC,” (id. ¶ 32), and filed a Complaint in D.C. Superior
Court on January 7, 2013. The Complaint alleges one Count of negligence against Citibank “in
approving the loan application effected in Buchwald’s name by persons affiliated with Starr,
Starrco and/or SIA.” (Id. ¶ 34). Because the parties are diverse and the amount in controversy
exceeds $75,000, Citibank properly removed to this Court on February 18, 2013, (Dkt. No. 1),
and then moved to dismiss pursuant to FED. R. CIV. P. 12(b)(6) the following week, (Dkt. No.
6). In his Opposition, Buchwald “request[ed] that he be afforded leave to file an amended
complaint in the event that the pending motion is granted in whole or in part.” (Dkt. No. 7, at
12) (citation omitted). He did not file an associated motion to amend, nor did he include a
proposed pleading as required by the Local Rules. See LCvR 7(i).
3
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
This Court held a hearing on Citibank’s motion to dismiss on April 29, 2013, and
granted the motion from the bench. The Court found that Buchwald’s claim rested upon a
theory of negligence that had never been extended to a third party not implicated in the
wrongdoing. At the conclusion of the hearing, counsel for Citibank asked whether the ruling
was a dismissal without leave to amend, and the Court answered in the affirmative.
Buchwald has now filed a motion to amend the judgment and for leave to file an
amended complaint. He claims two errors: one, “in declining to allow Plaintiff the benefit of
tolling during the pendency of Starr’s executorship,” and two, in dismissing the case with
prejudice rather than without, thus disallowing Buchwald to file an amended complaint. (See
Dkt. No. 11-2, at 3). Attached to Buchwald’s motion is a proposed First Amended Complaint
(FAC), which includes two counts; in addition to the negligence count, there is an additional
count for a “Declaration that the HELOC is Null and Void.” (Dkt. No. 11-1, at 9-10). The
FAC adds two points to the “substantive allegations” section. One, Starr and his employees
“conducted all of their banking business with Citibank and had established a relationship with
Citibank.” Likewise, “[Art] Buchwald also had a prior banking relationship with Citibank,
which held exemplars of his signature.” (Id. ¶¶ 14-15). Two, after Citibank rejected a $50,000
check for an irregular signature, the bank “was thereafter on notice that those persons
purporting to act on [Art] Buchwald’s behalf were willing to prepare and present forged and
irregular documents. This awareness should have prompted Citibank to investigate further,
and to demand direct verification from [Art] Buchwald that Ms. Dorn was acting with proper
authority, particularly in light of Citibank’s familiarity with both [Art] Buchwald and Starr.”
(Id. ¶ 29).
4
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
III. LEGAL STANDARDS
A. Standard For Altering Or Amending A Judgment
A motion to alter or amend a judgment is brought pursuant to FED. R. CIV. P. 59(e).
Motions to alter or amend under Rule 59(e) are disfavored, “and relief from judgment is
granted only when the moving party establishes extraordinary circumstances.” Niedermeier v.
Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore,
151 F.3d 1053, 1057-58 (D.C. Cir. 1998)). There are three reasons why a Rule 59 motion may
have merit. Such a motion may be granted if (1) there is an “intervening change of law;” (2)
the movant presents “new evidence that was not previously available;” or (3) the movant
“establish[es] an error of law or fact in the court’s original opinion.” See Messina v. Krakower,
439 F.3d 755, 758 (D.C. Cir. 2006) (citation omitted). A Rule 59 motion is not a means by
which to “reargue facts and theories upon which a court has already ruled.” New York v.
United States, 880 F. Supp. 37, 38 (D.D.C. 1995).
B. Rule 15 Standard
FED. R. CIV. P. 15(a)(1) provides that a party “may amend its pleading once as a matter
of course within” a limited amount of time; otherwise, pursuant to FED. R. CIV. P. 15(a)(2), “a
party may amend its pleading only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so requires.” However, a court should
deny a motion to amend a complaint “if the proposed claim would not survive a motion to
dismiss.” Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (per curiam). In
addition, if “parties to the action can show that prejudice will result by allowing the
amendment or that the proposed amendment is totally frivolous, leave to amend will be
5
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
denied.” 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 1473 (3d ed. 2010) (WRIGHT, MILLER & KANE).
IV. ANALYSIS
A. This Court Did Not Commit Error In Determining That The Statute Of
Limitations Should Not Have Been Tolled
Buchwald cannot demonstrate any of the three elements of a successful Rule 59
motion. There has been no change in the law, and Buchwald concedes this. Meanwhile there
are two problems with Buchwald’s effort to supplement his complaint with new information.
The first problem is that the allegedly key piece of new information is not new. Buchwald
claims to have “supplemented the factual allegations pertinent to the applicable tolling
doctrine,” pointing the Court to information in the FAC at paragraphs 14 and 29. (See Dkt. No.
11-2, at 11). The “new” information at paragraph 29 of the FAC, that Starr’s staff presented a
forged check to Citibank, appeared in the original complaint. (Compare Dkt. No. 11-1, ¶ 29
with Dkt. No. 1-4, ¶ 25). And while Buchwald refers to “new” information in paragraph 14 of
the FAC, that Starr had an established relationship with Citibank, the FAC adds that “[Art]
Buchwald also had a prior banking relationship with Citibank . . . .” (Dkt. No. 11-1, ¶ 15).
The FAC seems to be implying that because Citibank had a relationship with Starr that they
valued more than their relationship with Buchwald, the bank was willing to overlook
fraudulent behavior. This suggestion does not rise above mere speculation. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that factual allegations must “raise a
right to relief above the speculative level”). The second problem is that the purportedly new
information was previously available, and Buchwald presents no reason as to why this
information could not have been included in the original complaint. See Krakower, 439 F.3d at
6
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
759. Buchwald must demonstrate that this Court erred with respect to the law or the facts, but
he fails to do so here.
Buchwald claims that this Court was “incorrect” in finding that one of the tolling
doctrines alleged to be at issue here “applies only against parties that actively participated in
the concealment,” because “courts have applied this tolling doctrine not only as to intentional
wrongdoers who actively prevented the principal from pursuing its claim, but also to claims
against other persons.” (Dkt. No. 11-2, at 5). For support, he cites two cases discussed by the
parties in the motion to dismiss briefing, Demoulas v. Demoulas Super Markets, Inc., 424
Mass. 501 (1997), and Bremer v. Williams, 210 Mass. 256 (1911). Neither case supports
Buchwald’s claim of error. In Demoulas, the statute of limitations was not tolled against a
third party not implicated in the wrongdoing. Instead, the court tolled the statute of limitations
“[b]ased on the fiduciary relationship that existed between key defendants as corporate
directors and the plaintiff as a shareholder . . . .” 424 Mass. at 522. The court also found “[a]
further basis . . . for tolling the limitations period”: “The directors all either benefitted from, or
acquiesced in, the activities that are the basis of the plaintiff’s claims on behalf of the
corporations, and the limitations period therefore had not run on these claims before the
commencement of the action.” Id. at 523 (footnote omitted). In neither situation did the court
rest its decision on a third party’s relatedness to the bad deeds at issue.
Bremer is of no help to Buchwald either. In that case, a trustee of two wills embezzled
money from one estate to pay taxes due for the other. Later, when it was discovered that
money was missing, the trustees under the will that had the money stolen sought to recover
their money from the trustee who stole it. As in Demoulas, this is not a case about the statute
of limitations with respect to a third party. Perhaps Bremer would support the proposition that
7
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
the statute of limitations would be tolled for Buchwald to bring a claim against Starr, but the
case does not support the proposition that he may similarly get the benefit of tolling in a claim
against Citibank. Thus, this Court did not commit any error in its determination on this point.
Buchwald also claims that “under the analogous adverse domination doctrine, this
Court itself has on at least two occasions held that it is applicable to claims against persons
other than the person(s) who adversely dominated the business entity in question.” (Dkt. No.
11-2, at 5). For support, he again cites two cases previously discussed by the parties in the
motion to dismiss briefing, BCCI Holdings (Luxembourg), S.A. v. Clifford, 964 F. Supp. 468
(D.D.C. 1997), and Resolution Trust Corp. v. Gardner, 798 F. Supp. 790 (D.D.C. 1992). But
again, these cases do not support an argument of error because they do not deal with negligent
third parties not implicated in the wrongdoing.
In Clifford, defendants Clark Clifford and Robert Altman were “allegedly corrupt
senior managers and officers of BCCI.” 964 F. Supp. at 472-73. The court denied a motion to
dismiss with respect to the issue of statute of limitations in part because plaintiffs had alleged
that BCCI “was adversely dominated by corrupt prior senior managers and directors, who, in
conjunction with Defendants Clifford and Altman engaged in the harmful acts.” See id. at 479.
The issue of whether the statute of limitations should be tolled for someone who did not
adversely dominate the business entity in question—but “who engage[d] in actionable conduct
. . . concealed through the adverse domination”—is discussed in footnote nine. There, the
court did find that for another defendant, Baldwin Tuttle, who was neither an officer nor
director of BCCI, that the adverse domination theory did toll the statute of limitations. Id. at
481 n.9. Among other acts, Tuttle “assisted in the preparation and submission of multiple false
and misleading documents in order to conceal the scheme concocted by BCCI’s corrupt senior
8
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
managers.” Id. at 480 n.8. Tuttle’s acts can hardly be compared to those of Citibank in this
case. Citibank relied on a notarized document, and did not prepare or submit anything false or
misleading in an effort to conceal a scheme. Buchwald even acknowledges that the Power of
Attorney at issue and the mortgage supporting the HELOC were publically filed in 2007. (See
Dkt. No. 7, at 9; see also Dkt. No. 6, at 5).
The other case cited by Buchwald with respect to the adverse domination doctrine is
cited in footnote nine of Clifford: Resolution Trust Corp. v. Gardner. But like Clifford,
Gardner stands for the unremarkable proposition, endorsed by this Court at oral argument on
the motion to dismiss, that actors other than officers or directors can toll the statute of
limitations. See 798 F. Supp. at 795. But the reason that Buchwald’s motion does not reveal
any legal error is that Gardner does not stand for the proposition that a third party not
implicated in the wrongdoing can toll the statute of limitations. The court in Gardner noted,
among other key facts, that the defendant “was in a fiduciary relationship with the corporation,
which further decreased the likelihood of [the corporation] bringing suit against him.” Id. at
796. Moreover, the cases cited for support in Gardner, which refer to actors other than officers
and directors, all deal with actors involved with the wrongdoing at issue. See, e.g., Mosesian v.
Peat, Marwick, Mitchell & Co., 727 F.2d 873 (9th Cir. 1984) (dealing with an accountant who
allegedly issued false and misleading reports relied upon by stockholders to purchase stock);
Bornstein v. Poulos, 793 F.2d 444 (1st Cir. 1986) (dealing with an attorney who violated
fiduciary duties to the corporation at issue); In re Am. Cont’l Corp./Lincoln Sav. and Loan Sec.
Litig., 794 F. Supp. 1424 (D. Ariz. 1992) (dealing with a law firm for which there were
material questions as to whether they knowingly assisted in fraud). These cases are all
9
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
distinguishable from the present case, where Citibank was presented with a notarized document
and acted in reasonable reliance on it.
While Buchwald’s plight remains regrettable, he has pointed to no error in this Court’s
previous determination that tolling the statute of limitations for a negligence claim against
Citibank would not be appropriate.
B. This Court Properly Dismissed Buchwald’s Complaint With Prejudice
Buchwald argues that this Court committed error in granting Citibank’s motion to
dismiss with prejudice. But this argument runs afoul of D.C. Circuit precedent. A Rule
12(b)(6) dismissal “is a resolution on the merits and is ordinarily prejudicial.” Okusami v.
Psychiatric Institute of Washington, Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992). The D.C.
Circuit’s recent majority and concurring opinions in Rollins v. Wackenhut Servs., Inc., 703
F.3d 122 (D.C. Cir. 2012), are particularly instructive. Notably Judge Kavanaugh stated:
“Rule 12(b)(6) dismissals are typically with prejudice and do not require particular justification
by the district court.” 703 F.3d at 132 (Kavanaugh, J., concurring). See also id. at 133 (“[A]
Rule 12(b)(6) dismissal ordinarily operates as a dismissal with prejudice, unless the district
court in its discretion states otherwise.”).
This Court provided adequate reasoning as to why Buchwald’s original Complaint was
denied, and why it was denied with prejudice. Although Buchwald now seeks leave to amend
his complaint under FED. R. CIV. P. 15, “once a final judgment has been entered, a court cannot
permit an amendment unless the plaintiff ‘first satisf[ies] Rule 59(e)’s more stringent standard’
for setting aside that judgment.” Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Had Buchwald included his
declaratory judgment count in the original Complaint, the statute of limitations analysis may
10
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
have addressed that claim differently. But he did not. “Since th[is] court declined to set aside
the judgment under Rule 59(e), it properly conclude[s] that [Buchwald]’s motion to amend
under Rule 15(a) [i]s moot.” See id.
Generally, when a complaint “contain[s] only one claim, the right to amend once as a
matter of course prior to a responsive pleading would be terminated by a judgment of
dismissal. Thereafter, efforts to amend a complaint presumably must first be directed to
reopening the judgment under Rule[ ] 59 . . . .” Cassell v. Michaux, 240 F.2d 406, 407-08
(D.C. Cir. 1956) (citation omitted). “[A] judgment generally will be set aside only to
accommodate some new matter that could not have been asserted during the trial, which means
that relief will not be available in many instances in which leave to amend would be granted in
the prejudgment situation.” WRIGHT, MILLER & KANE § 1489; accord Proskauer Rose, LLP v.
Blix Street Records, Inc., 384 F. App’x 622, 625 (9th Cir. 2010) (denying motion for leave to
add breach of contract claim after entry of judgment); HDC, LLC v. City of Ann Arbor, 675
F.3d 608, 615 (6th Cir. 2012) (“When a party seeks to amend a complaint after an adverse
judgment, it . . . must shoulder a heavier burden. Instead of meeting only the modest
requirements of Rule 15, the claimant must meet the requirements for reopening a case
established by Rules 59 or 60.”) (citation omitted). Because Buchwald does not satisfy the
Rule 59 standard, his Rule 15 motion will be denied. Cf. United States ex rel. Roop v.
Hypoguard USA, Inc., 559 F.3d 818, 825 (8th Cir. 2009) (“[A] post-judgment motion for leave
to assert an entirely new claim is untimely.”).
At oral argument, counsel for Buchwald pointed out that in the Opposition to the
Motion to Dismiss, he asked for leave to amend his complaint “in the event that the pending
motion is granted in whole or in part.” (Dkt. No. 7, at 12) (citation omitted). This request is
11
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
plainly insufficient under both the Local Rules and settled precedent in this Circuit. “[A] bare
request in an opposition to a motion to dismiss [for leave to amend]—without any indication of
the particular grounds on which amendment is sought—does not constitute a motion within the
contemplation of Rule 15(a).” Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006)
(citation omitted). See also LCvR 7(i) (noting a motion for leave to amend “shall be
accompanied by an original of the proposed pleading as amended,” which Buchwald did not
provide in his Opposition). Thus, a single sentence in Buchwald’s Opposition referencing
leave to amend, offering no explanation as to why leave to amend should be granted, combined
with his failure to include a proposed amended complaint despite understanding the grounds
raised for dismissal in Citibank’s motion to dismiss, reveals that this Court did not err in
granting Citibank’s motion to dismiss with prejudice.
C. Buchwald’s Proposed Count For A Declaration Would Be Futile
At the July 29, 2013 hearing on Buchwald’s motion to amend and for leave to file an
amended complaint, this Court asked for additional briefing regarding whether an amendment
that would only leave a count for a declaratory judgment would be futile because under
Massachusetts law, the Declaratory Judgment Act does not serve as an independent source of
standing. See, e.g., Ten Persons of the Commonwealth v. Fellsway Dev. LLC, 951 N.E.2d 648
(Mass. 2011).
Nothing in the parties’ briefs indicates that Buchwald could maintain this case
following the dismissal of his negligence claim, leaving only a count for a declaration. Chapter
231A is the section of the Massachusetts General Laws titled “Procedure for Declaratory
Judgments.” According to Ten Persons, “[i]t is settled that G.L. c. 231A does not provide an
independent statutory basis for standing.” 951 N.E.2d at 660 (citations omitted). Because this
12
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
Court did not err regarding the dismissal of the negligence claim, a complaint only for a
declaration would be futile, because Buchwald would lack standing. While in his supplemental
memorandum Buchwald states that “federal district courts have authority to issue declaratory
judgments,” (Dkt. No. 15, at 2), this power is not without limit. Similar to the law in
Massachusetts, the federal Declaratory Judgment Act “is not an independent source of federal
subject matter jurisdiction.” Seized Property Recovery Corp. v. U.S. Customs and Border
Protection, 502 F. Supp. 2d 50, 64 (D.D.C. 2007) (quoting GNB Battery Technologies, Inc. v.
Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995)). Without an actual case or controversy, this
Court cannot render a declaratory judgment under the federal Declaratory Judgment Act, or its
Massachusetts analogue. See C&E Water Services, Inc. of Washington v. District of Columbia
Water and Sewer Authority, 310 F.3d 197, 201 (D.C. Cir. 2002).
13
SUMMARY MEMORANDUM OPINION; NOT INTENDED
FOR PUBLICATION IN THE OFFICIAL REPORTERS
V. CONCLUSION
This is a frustrating case. Art Buchwald put his trust in Starr, and Starr and his team
allegedly violated that trust and stole money from him. But that does not mean that
Buchwald’s ability to seek redress for that wrong is limitless. Citibank relied on a notarized
HELOC, and there is nothing in the record to indicate that the bank participated with Starr or
his related entities in the scheme to defraud Art Buchwald. This Court properly ruled that the
negligence count should be dismissed, and Buchwald’s motion to amend raises no new law or
facts that change that determination. Therefore the motion to amend is DENIED. For that
reason, and independently for the reason that a standalone declaratory judgment count would
be futile, Buchwald’s Rule 15 motion for leave to amend is DENIED as well.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
[email protected], c=US
Date: 2013.09.17 10:29:01 -04'00'
Date: September 17, 2013
ROBERT L. WILKINS
United States District Judge
14
| {
"pile_set_name": "FreeLaw"
} |
897 So.2d 35 (2004)
Henry LEE
v.
TWIN BROTHERS MARINE CORPORATION.
No. 2003 CA 2034.
Court of Appeal of Louisiana, First Circuit.
September 17, 2004.
*36 Michael S. Guillory, Gregory S. Unger, Metairie, Counsel for Plaintiff/Appellant Henry Lee.
Tracy P. Curtis, Perret Doise, Lafayette, Counsel for Defendant/Appellee Twin Brothers Marine, Inc.
Before: CARTER, C. J., PETTIGREW, and MCDONALD, JJ.
McDONALD, J.
Claimant/appellant appeals the decision in a workers' compensation hearing sustaining an exception raising the objection of res judicata and dismissing his claims. For the following reasons, we reverse.
FACTS AND PROCEDURAL BACKGROUND
Claimant/appellant, Henry Lee (Lee), was working for Twin Brothers Marine Corporation (Twin Brothers) when he injured his right knee on January 6, 2000. Dr. Andre Cenac, Lee's treating physician, performed orthoscopic surgery on both of Lee's knees, and released him to return to work in October 2000. Lee returned to his previous position October 11, 2000, and worked until March 16, 2001.
In September 2001 Lee filed a disputed claim for compensation alleging that benefits were terminated on October 10, 2000, that Twin Brothers refused to pay for medical treatment and prescriptions, and refused to authorize proper medical treatment. The matter was scheduled for trial but was continued on two occasions to give Lee additional discovery time to obtain the deposition of Dr. Cenac and other orthopedic surgeons who may have assisted in Lee's surgery.
Prior to trial the parties stipulated to the following: 1) the claimant, Henry D. Lee, hurt his right knee at work on January 6, 2000; 2) the claimant had seen Dr. Andre Cenac for left knee complaints related to an accident the claimant had at home earlier; 3) Dr. Cenac performed orthoscopic surgery on both knees at the same time and Dr. Cenac approved the claimant to return to work at medium duty from October 11, 2000 to March 16, 2001 for which he was paid full wages; 4) the claimant's hypertension and low back complaints were unrelated to work; and 5) temporary total disability benefits were paid from January 14, 2000 to October 10, 2000 at $377.63 a week.
The trial in this matter was held on September 18, 2002, on the issues of whether Lee was entitled to temporary total disability benefits from March 17, 2001 to present and whether Twin Brothers Marine Corporation, reasonably controverted Lee's workers' compensation claims. On October 9, 2002, judgment was rendered finding that Lee was not *37 entitled to temporary total disability benefits from March 17, 2001 to the time of trial and that Twin Brothers reasonably controverted the workers' compensation claim. No appeal was taken from that judgment.
In January 2003, Lee, represented by different counsel, filed a form 1008 claiming compensation for medical treatment of "knee replacement" as recommended by Dr. Cenac, and penalties, attorney's fees, and costs. The workers' compensation judge sustained Twin Brothers' exception raising the objection of res judicata and dismissed Lee's claims with prejudice at his cost. This devolutive appeal followed.
LAW AND ANALYSIS
Louisiana Revised Statute 13:4231 sets forth the factors for a court to apply in determining whether a subsequent claim is barred by res judicata and provides:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
The purpose of res judicata is to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079. The burden of proof is upon the pleader to establish the essential facts to sustain the plea of res judicata. Diamond B. Const. Co. v. Dept. of Trans & Dev., 02-0573, p. 8 (La.App. 1st. Cir.2/14/03), 845 So.2d 429, 435. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party's substantive rights have actually been previously addressed and finally resolved. Domingue ex rel. Domingue v. Allied Discount Tire and Brake, Inc., XXXX-XXXX (La.App. 1st Cir.5/9/03), 849 So.2d 690, 695, writ denied, XXXX-XXXX (La.10/3/03), 855 So.2d 320. A final judgment has the authority of a thing adjudged only as to those issues presented in the pleadings and conclusively adjudicated by the court. Ins. Acssociates, Inc. v. Francis Camel Const., 95-1955, p. 3 (La.App. 1st Cir.5/10/96), 673 So.2d 687, 689. Identification of issues actually litigated shall be determined not solely from the pleadings but also by examining the entire record in the first suit. Ebey v. Harvill, 26,373, p. 3 (La.App. 2nd Cir.12/7/94), 647 So.2d 461, 464.
The judgment from which this appeal is brought recites that it was rendered after consideration of the law, the exhibits, the record, and the argument of counsel. However, the record of the previous litigation in this matter was not introduced into evidence and is not in the record before us. An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. *38 La. C.C.P. arts. 2127, 2128; Our Lady of the Lake Hospital v. Vanner, 95-0754, p. 4 (La. App 1st. Cir. 12/15/95), 669 So.2d 463, 465. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Our Lady of the Lake at 465. Arguments and pleadings are not evidence. Law Offices of Robert M. Becnel v. Ancale, 00-295, p. 6 (La. App 5th Cir. 9/26/00), 769 So.2d 761, 766.
The evidence in the record before us confirms that Lee was denied total temporary disability benefits after the workers' compensation trial in September 2002. However, we have no way of determining whether the workers' compensation judge heard argument concerning the need for Lee to have a total replacement of the right knee as recommended by Dr. Cenac. The record discloses that Lee failed to return to work after March 16, 2001, primarily due to hypertension and low back pain (neither of which were attributable to work), which would support the denial of total temporary disability benefits without adjudicating the issue of necessity for knee replacement. Without benefit of the record upon which the October 9, 2002, judgment rests, we cannot uphold the workers' compensation judge's finding that Lee's recent claim for medical expenses is barred by res judicata.
CONCLUSION
The judgment of the Office of Workers' Compensation sustaining the exception raising the objection of res judicata is reversed. Costs are assessed to Twin Brothers Marine Corporation.
REVERSED AND REMANDED.
CARTER, J., concurs.
| {
"pile_set_name": "FreeLaw"
} |
238 F.2d 234
16 Alaska 338
A. B. PHILLIPS, Executive Director, Employment SecurityCommission of Alaska, Appellant,v.FIDALGO ISLAND PACKING CO., Appellee, Clara Wilson, Intervenor.
No. 14505.
United States Court of Appeals Ninth Circuit.
June 21, 1956.Writ of Certiorari Denied Dec. 10, 1956.See 77 S.Ct. 262.
J. Gerald Williams, Atty. Gen., Edward A. Merdes, Asst. Atty. Gen., Territory of Alaska, Juneau, Alaska, for appellant.
H. L. Faulkner, Faulkner, Banfield & Boochever, Juneau, Alaska, for appellee.
Before HEALY, FEE and CHAMBERS, Circuit Judges.
PER CURIAM.
1
In the petition for rehearing, appellant misreads the per curiam opinion of this Court. There was no intention in that opinion to controvert well established principles. Where an administrative agency or officer has been given jurisdiction over the subject matter of a field, the presumption of validity of the regulations and acts of such agency or officer applies. Here the jurisdiction of the old commission over the subject matter had expired by abolition of the agency. The delegated power to the Executive Director of the old commission expired when it went out of existence. The rulings may be explained upon principles of agency as well as upon grounds of lack of jurisdiction. If the new commission desired to delegate power to the Executive Director, it could not act before its creation and assumption of authority. His purported action in the interim between the expiration of his delegation of power by the old commission and the organization of the new commission was void, not voidable, because no body had jurisdiction of the subject matter at the time and he had no delegated authority to act in the premises. The fact that the acts abolishing one body and creating another were passed simultaneously is without significance. The only confusion apparent in this case is that of legislative policy and the application thereof by the administrative agencies which have been created. On the other hand, an emergency has obviously been prevented by federal legislation.
2
The petition for rehearing is denied.
| {
"pile_set_name": "FreeLaw"
} |
541 F.2d 279
Fulksv.Avondale Shipyards, Inc.*
No. 76-2578
United States Court of Appeals, Fifth Circuit
10/15/76
1
Ben.Rev.Bd., La.
2
REMANDED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20973
Conference Calendar
ANTHONY R. LUCAS,
Plaintiff-Appellant,
versus
CHARLES BACARISSE,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-504
- - - - - - - - - -
December 16, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Anthony R. Lucas, Texas prisoner # 665065, appeals from the
district court’s order granting summary judgment in favor of the
defendant, Charles Bacarisse, in Lucas’s civil rights complaint
brought pursuant to 42 U.S.C. § 1983. Lucas argues that
Bacarisse, the Harris County, Texas, District Clerk, interfered
with his constitutional right of access to the court.
After close examination of the record, and consideration of
the parties’ arguments, we find no error in the district court’s
ruling granting summary judgment. Nor do we find any merit in
*
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. 98-20973
-2-
Lucas’s claim that the district court erred by failing to grant
his request for a stay in the proceedings to allow for further
discovery. See Exxon Corp. v. Crosby-Mississippi Resources, Ltd,
40 F.3d 1474, 1487 (5th Cir. 1995). Accordingly, the district
court’s grant of summary judgment is AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
124 F.Supp. 476 (1954)
UNITED STATES of America,
v.
Hyman Harvey KLEIN, Isidor J. Klein, Albert McLennan, George Norgan, Ellis Rosenberg, Maurice Haas, Irving A. Koerner, Morris O. Alprin and Albert Roer, Defendants.
United States District Court, S. D. New York.
September 30, 1954.
*477 J. Edward Lumbard, U. S. Atty., for the Southern Dist. of N. Y., New York City, Thomas W. Hill, Jr., Asst. U. S. Atty., New York City, of counsel, for United States.
E. Gayle McGuigan, New York City, for defendant Hyman Harvey Klein.
Michael Kaminsky, New York City, F. Joseph Donohue and Abraham S. Goldstein, Washington, D. C., of counsel, for defendants Morris O. Alprin and Maurice Haas.
Samuel Becker, New York City, Greenman, Shea, Sandomire & Zimet and Frederick F. Greenman, New York City, of counsel, for defendant Irving A. Koerner.
Barr & Barr, New York City, Jerome H. Barr, New York City, of counsel, for defendant Albert Roer.
PALMIERI, District Judge.
Defendants Haas, Alprin, Roer and Koerner were subpoenaed to appear and testify before a grand jury that subsequently indicted them. They were charged in a five count indictment with three substantive attempts to evade taxes and two conspiracies, one to evade tax, and the other to defraud the Government *478 in the exercise of a governmental function, namely, the assessment and collection of income taxes. The United States Attorney who questioned them before the grand jury did not inform them that the Fifth Amendment to the Constitution of the United States gave them the privilege to refuse to answer questions which might incriminate them. Although Government counsel states that these defendants appeared before the grand jury without any compulsion whatever because none of them was served personally, I shall assume, for the purposes of the motions before me, that they appeared and testified before the grand jury under the compulsion of subpoenas. All of the named defendants claim that because of the foregoing facts their rights under the Fifth Amendment were violated; Haas and Alprin claim further that their rights under 18 U.S.C. § 3481 were violated; and on these grounds the named defendants move to dismiss the indictment.
Defendants seek to bring themselves within the compass of the cases that state that a defendant in a criminal case cannot be compelled to testify before a grand jury on matters pertaining to that case. See United States v. Lawn, D.C.S.D.N.Y.1953, 115 F.Supp. 674. But these cases are not applicable because defendants were not charged with the commission of any offense against the United States when they appeared before the grand jury. At that time defendants were witnesses, and although it was probable that the grand jury would, as it did, subsequently indict them, they are not entitled to the protection that is afforded a defendant. United States v. Scully, D.C.S.D.N.Y.1954, 119 F.Supp. 225. Therefore, defendants' rights were not violated when they were subpoenaed to appear and testify before a grand jury; United States v. Scully, supra; United States v. Wilson, D.C.Del.1942, 42 F.Supp. 721; and if they desired the protection of the privilege, they should have claimed it. See United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560.
Defendants urge upon the Court that when persons who are likely to be indicted are called as witnesses before a grand jury, the United States Attorney should be required to inform them of their privilege under the Fifth Amendment. Cf. Federal Rules of Criminal Procedure, rules 5(b) and 40(b)(2), 18 U.S.C.A. However, defendants (two of whom are lawyers and all of whom were represented by counsel) do not claim that they were ignorant of the privilege, and that if they had known of it they would not have answered the questions put to them. They have failed to make any showing of fraud, duress, or deception on the part of the Government which they contend resulted in their testifying before the grand jury. It is clear that under such circumstances, a United States Attorney is not required to inform a grand jury witness who is under suspicion of his privilege. Powers v. United States, 1912, 223 U.S. 303, 32 S. Ct. 281, 56 L.Ed. 448; United States v. Scully, supra; United States v. Wilson, supra; see Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Pulford v. United States, 6 Cir., 1946, 155 F.2d 944, 947-948; 8 Wigmore on Evidence § 2269 (3d ed. 1940). The defendants have placed great emphasis upon the statement of the Assistant United States Attorney, made upon the argument of these motions, to the effect that at the time of the grand jury proceedings, he believed that there was a strong possibility that information the Government then had in its possession would lead to the indictment of the defendants Haas and Alprin. But it is quite apparent that the defendants and their counsel were well aware of this possibility. Moreover, the applicable rules of law are not affected by the state of mind of Government counsel.
Nor can I conclude on the basis of the affidavits before me that the defendants were in any way overreached or that substantial justice was frustrated. *479 It would seem that, far from being deprived of their rights, the defendants have sedulously availed themselves of their rights at every stage of the proceedings. Having failed to invoke the privilege under the Fifth Amendment in good time, they cannot be heard to say that they would now decide otherwise and that the indictment should be dismissed upon their tardy assertion of privilege.
With respect to the defendants' motions for bills of particulars, they must, except to the extent consented to by the Government, be denied. The defendants have made a large number of demands pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. These demands are in many instances repeated by the five named defendants whose motions are before me. No useful purpose can be served by reciting the numerous demands.
All five named defendants seek to compel the Government to disclose the nature and source of income and computations of tax. The Government has already complied with this demand. In accordance with my direction upon the oral argument of the motions for bills of particulars, the United States Attorney has submitted to me the details of the nature, source and amount of the income on which it is alleged in the indictment a tax was due to the United States; the amount of the tax is set forth; and there is also furnished that portion of the Federal income tax return of the defendant Hyman Harvey Klein which is alleged to be false. Furthermore, the Government has set forth those portions of the 1952 Federal income tax returns of defendants Alprin and Koerner and of the 1950 return of Roer which are alleged to be false. This information has been communicated to the defendants.
It is my opinion that by this disclosure, the defendants have obtained all the information to which they are properly entitled. I am mindful that the purposes of a bill of particulars are (1) to obviate surprise at a trial and enable the defendant to prepare his defense and (2) to permit him to plead double jeopardy in the event of subsequent prosecution for the same offense. United States v. Foster, D.C.S.D.N.Y.1948, 80 F.Supp. 479, 486. But the administration of justice does not require the Government to disclose its evidence prior to trial in a bill of particulars, United States v. Flynn, D.C.S.D.N.Y.1951, 103 F.Supp. 925, 932. To compel disclosure of many of the items sought by the defendants would be tantamount to compelling a premature disclosure of the Government's case and would constitute an encroachment upon the functions of the trial court. Cf. United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 156 A.L.R. 337; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, 92. Moreover, many of the requests for disclosure made by the defendants are, in effect, requests to ascertain the theory of the prosecution's case. But I know of no authority permitting an exploration of the theory of the Government's case in advance of trial. Many of the statements made by the defendants in their oral arguments and in their numerous briefs are essentially based upon the desire to avoid the inconvenience incident to the preparation for trial of a criminal tax case involving very large sums of money and covering a period of several years. But if the prospect of trial appears burdensome, it is attributable to the defendants themselves and to their methods of doing business. The defendants are familiar with their own transactions. Upon all of the facts and circumstances alluded to upon the arguments and in the affidavits, it is my opinion that the defendants are not entitled to any disclosures other than the ones already provided pursuant to my direction. See Wong Tai v. United States, 1927, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545.
Defendants' motions under Rule 7(d) of the Federal Rules of Criminal Procedure, to strike as prejudicial surplusage certain allegations and overt acts under the Fourth Count of the indictment, must be denied. A motion *480 made pursuant to this rule will be granted only where it is clear that the allegation complained of is not relevant to the charge contained in the indictment and is inflammatory and prejudicial. See United States v. New York Great Atlantic & Pacific Tea Company, 5 Cir., 1943, 137 F.2d 459. In the instant case the allegations concerning Office of Price Administration controversies in which the defendants were previously involved are relevant because the Government charges that the defendants were engaged in manipulating OPA regulations for the purpose of perpetrating the criminal tax violations charged in the indictment.
The motion to dismiss Count Five of the indictment, the second of the two conspiracy counts, must also be denied. This count charges that the defendants "* * * did unlawfully, wilfully and knowingly combine, conspire, confederate and agree together and with each other * * * to defraud the United States in the exercise of its governmental functions in the assessment and collection of income taxes imposed by law and in the management of the revenue, in that the defendants attempted to conceal and continued to conceal the nature of their business activities and the source and nature of their income."
The defendants argue that facts sufficient to constitute an offense against the United States have not been alleged, that the allegation is duplicitous and uncertain, and that the allegation is so vague as to violate the Sixth Amendment of the Constitution.
This count is based upon Title 18 U.S. C. § 371, which makes it a crime to "* * * conspire either to commit any offense against the United States, or to defraud the United States * * *". The second part of this disjunctive phrase is of broad import and contemplates wrongs other than conspiracies to commit offenses against the United States which are defined by statute. See Hammerschmidt v. United States, 1924, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968; Haas v. Henkel, 1910, 216 U.S. 462, 479-480, 30 S.Ct. 249, 54 L.Ed. 569; Curley v. United States, 1 Cir., 1904, 130 F. 1, 8-9.
The defendants conceded upon oral argument that an offense is sufficiently alleged in Count Five if the last twenty-five words of the first paragraph were omitted. But, the argument runs, since these words "in that the defendants attempted to conceal and continued to conceal the nature of their business activities and the source and nature of their income" were added, the entire count is rendered insufficient and must be struck down because they supersede all that precedes them and are not sufficient in themselves to constitute a charge of conspiracy. I think the argument is based upon a distortion of plain language.
In view of the very broad meaning given to the words of the statute "or to defraud the United States", it is clear that a concealment of business activities and the source and nature of income by the defendants as part of their conspiracy can be deemed to constitute a defrauding of the Government in the exercise of an important and essential government function, namely, the assessment and collection of taxes. See Curley v. United States, supra, 130 F. at page 9; United States v. Stone, 3 Cir., 1905, 135 F. 392.
Finally, the motions to dismiss the Fourth Count on the ground that it charges the same offense as that charged by the First, Second and Third Counts of the indictment or, in the alternative, to compel the United States to elect between the first three counts and the fourth count, must be denied. The first three counts, as has been already indicated, charge substantive offenses whereas the fourth count charges a conspiracy. A substantive offense is separate and distinct in law from a conspiracy offense even though both may relate to the same transaction or stem from the same facts. They can form part of the same indictment and a defendant cannot, on that account, complain of duplicity or compel an election by the Government, Pereira *481 v. United States, 1954, 347 U.S. 1, 11-12, 74 S.Ct. 358.
The Clerk of the court will be directed to place this case upon the Criminal Trial Calendar for October 11, 1954, so that a suitable trial date can be fixed.
| {
"pile_set_name": "FreeLaw"
} |
976 F.Supp. 108 (1997)
Rafael RAMOS et al., Plaintiffs,
v.
DAVIS & GECK et al., Defendants.
No. 94-2737 (HL).
United States District Court, D. Puerto Rico.
August 20, 1997.
Herbert W. Brown, III, Brown & Ubarri, San Juan, PR, for plaintiffs.
Pedro Pumarada-Surillo, Pedro J. Manzano-Yates, Fiddler, Gonzales & Rodriguez, San Juan, PR, for defendants.
ORDER
LAFFITTE, District Judge.
Plaintiffs move for reconsideration of the Court's award of attorney's fees under Puerto Rico's Law 100. On June 20, 1997, the Court carefully considered Plaintiffs' attorney's fees request in light of the existing state of the law in Puerto Rico regarding the recovery of reasonable attorney's fees under Law 100. At the time that the Court issued its decision, there was no Supreme Court of Puerto Rico case which explained how to weigh a request for attorney's fees under this statute. The Court, therefore, adopted the Supreme Court of the United States' methodology in Hensley v. Eckerhart, 461 U.S. 424, 432-37, 103 S.Ct. 1933, 1939-41, 76 L.Ed.2d 40 (1983) and awarded Plaintiffs $37,695.00. Ramos v. Davis & Geck, Inc., 968 F.Supp. 765 (D.P.R.1997).
Six days after the Court issued its ruling and outlined a definitive approach for the recovery of attorney's fees under Law 100, the Supreme Court of Puerto Rico issued a new decision which explained the methodology for recovering fees under Law 100 for the first time. See Lopez Vicil v. ITT Intermedia. Inc., 97 J.T.S. 104 at 1250 (June 26, 1997). Neither Plaintiffs nor Defendants raise the issue of whether this decision should alter the Court's award of attorney's fees. Instead, Plaintiffs submit that their time records were contemporaneous with the work that they performed, there was a clerical error in the award which should state $35,795.00 instead of $36,695.00, they were requesting $303,360.00 not $224,314.00 in attorney's fees, and there is no support for the conclusion that many of their expenses were duplicative, excessive, and unnecessary.
Before entertaining Plaintiffs' argument for reconsideration, the Court must review Plaintiffs' attorney's fees request in light of the new Supreme Court of Puerto Rico decision. This decision creates an objective methodology for awarding reasonable attorney's fees to the victorious employee under Law 100. After surveying how federal courts determine attorney's fees pursuant to fee-shifting statutes, the Supreme Court held that, ordinarily, the attorney(s) for a victorious employee under Law 100 are entitled to recover 25% of the employee's "base" compensatory damages. Lopez Vicil 97 J.T.S. 104 at 1254. In other words, the reward is 25% of the compensatory damages award *109 before the award is doubled. Id. The Supreme Court arrived at this 25% figure after comparing Law 100 with Law 80's protection against unjustified dismissals. The Court reasoned that Law 100 discrimination cases are more costly and complicated than Law 80 actions, require more evidence which tends to be in the hands of the employer, and attract attorney's with less resources than the employer's attorney. Consequently, the Court concluded that a 25% recovery would equilibrate the employee's economic disadvantage in the litigation.
In a few, limited circumstances, the victorious employee's attorney(s) may recover more than 25% of the compensatory damages amount before doubling. These circumstances include cases when the employee's lawyer must work unusually hard to win the case, the impact of the case is exceptional, or the attorney confronts a "Stalingrad Defense." Before the attorney(s), however, can recover more than 25%, the attorney(s) must submit a sworn affidavit detailing the hours that she/he/they have worked and the reasonable hourly rate that she/he/they were charging. The victorious employee's attorney(s) have the burden of demonstrating that the hours that they worked and their hourly rates were reasonable. As a result, the affidavit must specify the tasks that they performed and the time that they spent on each specific task. Furthermore, the attorney(s) must explain how they arrived at the particular hourly rate that they were charging based upon their experience, their preparation, and the traditional hourly rate that they charge in Law 100 or labor law cases. Id. at 1254.
Of course, in determining whether an increase above the 25% of the base amount of compensatory damages before doubling is warranted, the Court shall eliminate all excessive and duplicative hours. Based on its experience and knowledge of litigation, the Court shall judge whether the attorney(s) spent a reasonable period of time on the tasks described in the affidavit. The novelty or difficulty of the legal issues may signal to the Court that the attorney(s) had to spend justifiably more time on particular matters. Similarly, a "Stalingrad Defense" may prove costly in the end to the employer by requiring the victorious employee's attorney(s) to battle every step of the way. Regardless of whether the Court accepts the amount of fees above 25% as stated or modifies the amount accordingly, the Court must provide written reasons for its decision. Id. at 1255.
The starting point, therefore, in reconsidering the Court's award of attorney's fees is twenty-five percent of co-Plaintiff Rafael Ramos' compensatory damages before doubling under Law 100 (25% × $150,000.00) i.e. $37,500.00. This figure is remarkably similar to the Court's award of $36,695.00.[1] Plaintiffs, however, are requesting a lot more than this amount. They are asking for $303,360.00 based on their claim that they worked unusually hard to win their case. For the reasons explained by the Court in the June 20, 1997 Opinion and Order, however, Plaintiffs have not persuaded the Court to increase the award above the 25% mark.
All of these reasons, in fact, parallel the analysis that the Supreme Court of Puerto Rico adopted for awarding attorney's fees above 25%. The Court continues to find that Plaintiffs violated the Grendel's Den rule by not submitting contemporary time sheets of the hours that they worked on this case since 1992. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984). Simply filing an affidavit and stating that the hours claimed are contemporary is unsatisfactory and defeats the principal purpose of the rule. Moreover, the Court continues to find that Plaintiffs provided ambiguous references to the type of work that their counsel performed throughout the case and, therefore, left the Court guessing as to the purpose of their counselors' work and its relationship with the litigation. Because Plaintiffs have the burden of establishing a reasonable claim for fees above 25%, Plaintiffs' vague statements regarding their counselors' work is a key obstacle to their request. Furthermore, the Court conducted an independent review of Plaintiffs' fee request and found that there were many duplicative, excessive, and unnecessary *110 expenses listed. Plaintiffs' argument in their motion for reconsideration is simply a conclusory denial of the Court's findings without any specific reference to the Record. Plaintiffs have said nothing to alter the Court's opinion in this regard. Finally, the Court continues to find that Plaintiffs have requested fees of both of their counsel when only one of their attorneys was performing substantially all of the work.
With the Supreme Court of Puerto Rico's June 26, 1997 Lopez Vicil decision in mind, the Court hereby denies Plaintiffs' motion for reconsideration. Ironically, an analysis of Plaintiffs' attorney's fees request pursuant to Law 100 demonstrates that the reward must be reduced to 25% of Rafael Ramos' compensatory damages reward before doubling. Based upon Plaintiffs' failure to include contemporary records, the vague references in their request, the duplicative and excessive hours claimed, and the duplication of similar work by both attorneys for Plaintiffs, the Court shall not increase Plaintiffs' attorney's fees award above the 25% figure. The Court, therefore, hereby reduces Plaintiffs' award to $37,500.00.
IT IS SO ORDERED.
NOTES
[1] In the June 20, 1997 Opinion and Order, the Court granted Plaintiffs $37,695.00. Upon further review, the Court finds that the actual award was $36,695.00.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-7492
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FARSHAD RAMAZANI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T.S. Ellis, III, District
Judge. (CR-89-107-A)
Submitted: January 23, 1996 Decided: February 5, 1996
Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Farshad Ramazani, Appellant Pro Se. Vincent L. Gambale, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's orders denying
Appellant's motion to compel the Government to file a FED. R. CRIM.
P. 35 motion for a reduction in sentence, and denying Appellant's
motion for reconsideration. We have reviewed the record and the
district court's opinion, and find no reversible error. According-
ly, we affirm on the reasoning of the district court. United States
v. Ramazani, No. CR-89-107-A (E.D. Va. Nov. 18, 1994; Nov. 1,
1994). We also deny Appellant's motions for summary judgment and
for remand to the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SHANISE TAYLOR, )
)
Plaintiff, )
) Civil Action No. 09-175 (EGS)
v. )
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Shanise Taylor seeks review of an administrative
decision denying her request for relief from the District of
Columbia Public Schools (“DCPS”) for alleged violations of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., by failing to provide her son with a free
appropriate public education (“FAPE”). Pending before the Court
are cross-motions for summary judgment. Upon consideration of
the motions, the responses and replies thereto, the applicable
law, the administrative record, the additional evidence submitted
by plaintiff, and for the reasons stated below, the Court DENIES
without prejudice the parties’ cross-motions for summary judgment
and REMANDS this action to the hearing officer for additional
findings of fact and conclusions of law, as well as a
determination of what, if any, relief plaintiff is entitled to
receive on behalf of her son.
I. BACKGROUND
Ms. Taylor is the parent of K.T., an eleven year-old boy who
attended Amidon Elementary School (“Amidon”) from the fall of
2004 - when K.T. was in kindergarten - through the 2008-2009
school year. See Pl.’s Statement of Facts Not in Dispute (“Pl.’s
SMF”) ¶ 1; Def.’s Statement of Facts Not in Dispute (“Def.’s
SMF”) ¶ 1. While at Amidon, K.T. had several behavior-related
incidents, some of which resulted in K.T.’s removal from school.
Pl.’s SMF ¶¶ 2, 5.
As a result of these incidents, Ms. Taylor requested that
K.T. be evaluated by DCPS for special education services. See
Pl.’s SMF ¶ 7 (explaining that plaintiff had begun requesting
special education evaluations for K.T. in 2006). On December 20,
2007, a Multidisciplinary Team (“MDT”) met for the first time to
develop a Student Evaluation Plan (“SEP”) for K.T. Def.’s SMF
¶ 2. The MDT recommended, among other things, that K.T. receive
a comprehensive clinical evaluation. Def.’s SMF ¶ 2; see also
Administrative Record (“AR”) 6 ¶ 2. Plaintiff, who participated
in the December 20, 2007 MDT meeting, signed a “Consent for
Evaluation” form. Def.’s SMF ¶ 3.
DCPS completed its psychological evaluation of K.T. on April
4, 2008. Pl.’s SMF ¶ 9. Its examiner found that K.T. did not
qualify for special education services as a child with an
emotional or learning disability. See Pl.’s Ex. 1 (“[T]he view
2
of this examiner is that [K.T.] does not meet the legal criteria
as detailed by the IDEA and Chapter 30 as an emotionally
disturbed child. . . . [K.T.] does not meet the disability
criteria as a Learning Disabled student.”). On April 18, 2008,
the MDT met to review the psychological evaluation and to
determine whether K.T. was eligible for special education
services. See Pl.’s SMF ¶ 11; Def.’s SMF ¶ 5. The meeting was
subsequently adjourned, however, after the MDT determined that it
needed additional information. See Pl.’s SMF ¶¶ 11-12; Def.’s
SMF ¶ 5; see also AR 58-59 (“Meeting was adjourned before
eligibility was discussed. . . . MDT determined that additional
information and/or report are required to be submitted for the
purpose of determining functioning in the school setting. This
information includes, suspension reports, office referral,
any/all pertinent reports from community connection, SST
intervention strategies as well as all educational data reports.
Ms. Taylor to provide school with contact information for
personnel at community connection[.]”).1
1
While not material to the Court’s decision, the parties
dispute what additional information was needed by the MDT in
order to determine K.T.’s eligibility for special education
services. In particular, plaintiff contends - over the objection
of DCPS - that the April 18, 2008 MDT meeting was adjourned
because “DCPS determined that the psychological evaluation
required amendment[.]” Pl.’s SMF ¶ 12. Having carefully
reviewed the administrative record, the Court finds no support
for this assertion.
3
On June 5, 2008, plaintiff notified DCPS that she would not
accept its April 4, 2008 psychological evaluation and requested
authorization to obtain an independent psychological evaluation
pursuant to 34 C.F.R. § 300.502.2 Pl.’s SMF ¶ 16; Def.’s SMF
¶ 6. After receiving no response from DCPS regarding her
request, plaintiff filed an IDEA due process complaint on
September 17, 2008.3 Pl.’s SMF ¶ 18.
Plaintiff’s due process complaint alleged, among other
things, that DCPS had failed to respond to her request for
authorization to obtain an independent evaluation at public
expense. Def.’s SMF ¶ 16; see generally AR 46. A hearing on the
administrative complaint was scheduled for October 22, 2008.
2
Section 300.502 provides, in relevant part, that “[t]he
parents of a child with a disability have the right under this
part to obtain an independent educational evaluation of the
child.” 34 C.F.R. § 300.502(a)(1). It further states that: “If
a parent requests an independent educational evaluation at public
expense, the public agency must, without unnecessary delay,
either– (i) File a due process complaint to request a hearing to
show that its evaluation is appropriate; or (ii) Ensure that an
independent educational evaluation is provided at public expense
. . . .” 34 C.F.R. § 300.502(b)(2).
3
Although DCPS had not specifically responded to
plaintiff’s request for an independent evaluation as of September
17, 2008, on September 15, 2008 - two days prior to the filing of
plaintiff’s due process complaint - DCPS sent a letter to
plaintiff’s counsel attempting to schedule a meeting with the
MDT. Def.’s SMF ¶ 7. In its letter, DCPS proposed three
alternative dates for an MDT meeting. Def.’s SMF ¶ 7. Each of
these dates were rejected by plaintiff’s counsel, as were the
subsequent dates proposed by DCPS. See Def.’s SMF ¶¶ 7-14
(detailing DCPS’s numerous attempts to schedule an MDT meeting in
September-October 2008).
4
Def.’s SMF ¶ 17. A week prior to the hearing, however, on
October 15, 2008, DCPS sent plaintiff a letter authorizing her to
obtain an independent evaluation for K.T. Pl.’s SMF ¶ 19; Def.’s
SMF ¶ 18. The due process hearing was nevertheless held on
October 22, 2008, and the hearing officer issued her decision on
October 31, 2008 (the “October 2008 HOD”). See generally AR 4-
13.
In her decision, the hearing officer found, inter alia, that
DCPS violated a procedural obligation of the IDEA by failing to
timely respond to plaintiff’s request for an independent
evaluation of K.T. See AR 10 (“The time elapse between the
Petitioner’s request [for an independent evaluation], and the
time DCPS responded was more than 4 months. The DCPS has
provided no justification for the delay. . . . The DCPS should
have authorized the evaluation or file [sic] a complaint
defending the existing evaluation without delay. The Hearing
Officer determines the DCPS has violated a procedural
obligation.”). The hearing officer also found, however, that
K.T. “was not denied a FAPE because of the alleged procedural
inadequacy.” AR 11. Specifically, the hearing officer
determined that “[t]he Student did not prove that a failure to
get a psychological reevaluation denied the Student’s right to a
FAPE or deprive [sic] him of educational benefit.” AR 11; see
also AR 11 (“While the Petitioner has established a procedural
5
violation of the IDEA, the Petitioner has not established that
that violation caused harm to the Student that the IDEA is
intended to address.”). The hearing officer then dismissed
plaintiff’s due process complaint. AR 13.
Following dismissal of her administrative action, plaintiff
filed suit in this Court alleging violations of the IDEA and
Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794.4 On May
28, 2010, plaintiff filed a motion for summary judgment seeking
reversal of the October 2008 HOD and a declaration that DCPS
denied K.T. a FAPE “by failing to provide for an independent
evaluation of him for four months.” Pl.’s Mot. for Summary
Judgment (“Pl.’s SJ Mot.”) at 2. On July 16, 2010, the District
filed a cross-motion for summary judgment asking the Court to
affirm the October 2008 HOD. See Def.’s Mot. for Summary
Judgment (“Def.’s SJ Mot.”). These motions are now ripe for
determination by the Court.
II. STATUTORY FRAMEWORK AND LEGAL STANDARD
A. The IDEA
The IDEA was enacted to “ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
4
Plaintiff’s Rehabilitation Act claim was dismissed by
this Court on February 2, 2010. See Taylor v. District of
Columbia, 683 F. Supp. 2d 20 (D.D.C. 2010).
6
education, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). It requires all states and the District of
Columbia to provide resident children with disabilities a FAPE
designed to meet their unique needs. Id. § 1412(a)(1).
The IDEA attempts to guarantee children with disabilities a
FAPE by requiring schools and other local educational agencies to
adopt procedures to evaluate children with suspected disabilities
and to ensure appropriate educational placement of disabled
students. See id. §§ 1413-1414. In addition, schools and school
districts must develop comprehensive plans for meeting the
special educational needs of individual disabled students. See
id. § 1414(d)(2)(A).
A parent who believes that his or her child has been denied
a FAPE is entitled to an impartial due process hearing. Id.
§ 1415(f)(1)(A). Any party aggrieved by the hearing officer’s
determination may bring a civil action challenging the decision.
Id. § 1415(i)(2)(A).
B. Standard of Review
In a district court’s review of a hearing officer’s
determination, the burden of proof is always on the party
challenging the administrative determination, who must “at least
take on the burden of persuading the court that the hearing
officer was wrong.” Reid v. District of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884,
7
887 (D.C. Cir. 1988)). In conducting its review, the court
“(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the
evidence, shall grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(c). A court must give
“‘due weight’” to the hearing officer’s determinations and “may
not substitute its own notions of sound educational policy for
those of the school authorities.” S.S. v. Howard Road Acad., 585
F. Supp. 2d 56, 63-64 (D.D.C. 2008) (quoting Bd. of Educ. v.
Rowley, 458 U.S. 176, 206 (1982)). Less deference, however, is
to be accorded to a hearing officer’s decision than would be the
case at a conventional administrative proceeding. See Reid, 401
F.3d at 521 (explaining that the court is “obligated by IDEA to
ensure that relief set forth in the administrative award was
‘appropriate’”). A motion for summary judgment operates as a
motion for judgment based on the evidence comprising the record
and any additional evidence the Court may receive. D.R. v.
District of Columbia, 637 F. Supp. 2d 11, 16 (D.D.C. 2009).
III. ANALYSIS
In support of her request for summary judgment, plaintiff
first argues that the hearing officer erred in determining that
K.T. was not denied a FAPE by DCPS’s failure to timely respond to
her request for an independent evaluation, explaining that “[t]he
8
failure to provide for an independent evaluation is a substantive
violation of the IDEA.” Pl.’s SJ Mot. at 9. In support of this
assertion, plaintiff relies on Harris v. District of Columbia,
561 F. Supp. 2d 63 (D.D.C. 2008). In Harris, the court found
that DCPS’s “failure to act on a request for an independent
evaluation” for a child who had “languished for over two years
with an [individualized education program] that may not [have
been] sufficiently tailored to her special needs” was more than
“a mere procedural inadequacy.” Id. at 69; see also id.
(discussing “[t]he intransigence of DCPS as exhibited in its
failure to respond quickly to plaintiff’s simple request [for an
independent evaluation]”). Based solely on this statement in
Harris, plaintiff asks the Court to hold that DCPS’s failure to
timely respond to a request for an independent evaluation “is a
per se denial of FAPE, [where] the question of actual harm need
never be asked.” Pl.’s Combined Opp’n & Reply at 3. This Court
must decline plaintiff’s request.
“A failure to timely reevaluate is at base a procedural
violation of IDEA.” Smith v. District of Columbia, No. 08-2216,
2010 U.S. Dist. LEXIS 125754, at *9 (D.D.C. Nov. 30, 2010)
(citing cases). Procedural violations of the IDEA do not
“‘inexorably lead a court to find a child was denied FAPE.’” Id.
(quoting Schoenbach v. District of Columbia, 309 F. Supp. 2d 71,
78 (D.D.C. 2004)). Instead, as plaintiff’s counsel is well
9
aware, “an IDEA claim is viable only if [DCPS’s] procedural
violations affected the student’s substantive rights.” Lesesne
v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)
(citing cases).5 The Court, therefore, finds that the hearing
officer properly determined that plaintiff was required to
demonstrate that K.T. suffered an “educational harm” in order to
establish that he was denied a FAPE by DCPS’s procedural
violation. See AR 116; see also Lesesne, 447 F.3d at 834
(rejecting petitioner’s argument that her child was “‘per se
harmed’ by DCPS’s alleged failure to meet some of IDEA’s
procedural deadlines”).
Plaintiff more persuasively argues, however, that the
October 2008 HOD should be reversed because K.T.’s substantive
rights under the IDEA were, in fact, violated by DCPS’s failure
to timely respond to plaintiff’s request for an independent
evaluation. In support of this argument, plaintiff asks the
Court to consider several pieces of new evidence. Specifically,
5
Plaintiff’s counsel in this action was counsel of
record in the Lesesne action.
6
Indeed, the hearing officer correctly recognized that
“‘in matters alleging a procedural violation, a hearing officer
may find that a child did not receive a [FAPE] only if the
procedural inadequacies — i. impeded the child’s right to a
[FAPE]; ii. significantly impeded the parent’s opportunity to
participate in the decision making process regarding the
provisions of a FAPE to the parent’s child; or iii. caused a
deprivation of educational benefits.’” AR 10-11 (quoting 34
C.F.R. § 300.513(a)).
10
plaintiff asks the Court to consider that on December 3, 2008 –
more than two months after the hearing officer issued her
determination – an independent psychological evaluation of K.T.
was produced, which recommended qualification of K.T. as a child
with an emotional disturbance and attention deficit hyperactivity
disorder (“ADHD”). See Pl.’s Ex. 2 at 14 (diagnosing K.T. with
ADHD, intermittent explosive behavior, and conduct disorder -
childhood onset). Plaintiff also asks the Court to consider that
during an MDT-eligibility meeting held on December 12, 2008, the
MDT “agreed” with plaintiff’s independent psychological
evaluation and found that K.T. (i) was “eligible for special
education services as a student with emotional disturbance/other
health impairment,” and (ii) was in need of a “full-time
therapeutic setting.” Pl.’s Ex. 3 at 4, 6; Pl.’s SMF ¶ 23.
Plaintiff argues that this evidence establishes that DCPS’s
delay in failing to timely authorize a reevaluation of K.T.
“caused a deprivation of educational benefits.” Pl.’s SJ Mot. at
11. Plaintiff asserts that: “Had DCPS provided its authorization
letter in June, when it was requested, instead of waiting four
months until October, . . . K.T. would have been evaluated four
months earlier, would have been found eligible four months
earlier, and would have received his [individualized education
program] four months earlier.” Pl.’s SJ Mot. at 12.
11
Defendant, in turn, contends that the Court should not
consider this new evidence. Defendant argues that “it would be
fundamentally unfair for this Court to overturn the [October 2008
HOD] based on Plaintiff’s after-acquired evidence that she never
presented to the hearing officer.” See Def.’s Reply at 3; see
also Def.’s SJ Mot. at 12-13 (arguing that “plaintiff is
attempting to circumvent established law” by “describ[ing] events
that occurred after the issuance of the October 31, 2008 HOD” in
support of her position that the hearing officer erred in
determining that there was no FAPE violation). Instead,
defendant urges the Court to affirm the October 2008 HOD based
solely upon the evidence presented by plaintiff at the
administrative hearing. See Def.’s SJ Mot. at 12-13 (arguing
that the hearing officer correctly found that the evidence
presented during the administrative hearing did not prove a
deprivation of educational benefits).
After careful consideration of the parties’ arguments, the
Court concludes that it is most appropriate to remand this case
to the hearing officer for consideration of plaintiff’s new
evidence. As a threshold matter, the Court finds defendant’s
argument that “plaintiff should be foreclosed from presenting
evidence and arguments that she did not raise before the hearing
12
officer” unavailing7 in light of 20 U.S.C. § 1415(i)(2)(C)(ii).8
Def.’s Reply at 1. Nevertheless, given the facts of this case,
and, in particular, the significant events that occurred after
the hearing officer issued her decision, the Court is persuaded
that it would be unfair to overturn the hearing officer’s
determination on grounds that she had no opportunity to consider
or evaluate. The Court therefore concludes that the hearing
officer should be permitted, in the first instance, to conduct
the “fact-specific exercise of discretion” anticipated by the
7
The Court is also unpersuaded by defendant’s argument
that plaintiff was required to file a separate motion in order
for the Court to consider plaintiff’s new evidence. See Def.’s
SJ Mot. at 13; Def.’s Reply at 1-2. Defendant has not directed
the Court to any statute, regulation, or case law requiring that
a separate motion be filed with the Court, nor is the Court aware
of any such authority. The Court, therefore, is unwilling to
impose this additional procedural requirement on plaintiff, and
will consider the new evidence that plaintiff has proffered.
8
20 U.S.C. § 1415(i)(2)(C)(ii) provides that in a civil
action appealing the decision of a hearing officer, the court
“shall hear additional evidence at the request of a party.”
While there is a conflict among the Courts of Appeals regarding
the precise meaning of § 1415(i)(2)(C)(ii)’s requirement that
district courts hear additional evidence, appellate courts have
generally construed the statute to provide district courts with
the discretion to determine whether or not to hear such evidence.
See, e.g., Konkel v. Elmbrook Sch. Dist., 348 F. Supp. 2d 1018,
1020-22 (E.D. Wis. 2004) (discussing the differing standards
applied by various courts in determining whether to receive
additional evidence in an IDEA action). In addition, although
the D.C. Circuit has not expressly addressed the issue, it has
generally recognized a district court’s discretion to decide
whether to hear additional evidence or remand an action to a
hearing officer for additional proceedings. See, e.g., Kingsmore
v. District of Columbia, 466 F.3d 118, 120 (D.C. Cir. 2006);
Branham v. District of Columbia, 427 F.3d 7, 13 (D.C. Cir. 2005).
13
IDEA. Reid, 401 F.3d at 536; see also Henry v. District of
Columbia, No. 09-1626, 2010 U.S. Dist. LEXIS 120336, at *11
(D.D.C. Nov. 10, 2010) (“While the Court has the authority to
undertake its own review of the record . . . and issue judgment
in the case, the district court may determine that the
‘appropriate’ relief is a remand to the hearing officer for
further proceedings[.]” (internal quotation marks omitted)).
Accordingly, this action is hereby REMANDED to the hearing
officer for consideration of plaintiff’s newly-proffered
evidence, and for further findings of fact and conclusions of law
regarding whether K.T. was denied a FAPE as a result of DCPS’s
procedural violation and, if so, the amount of compensatory
education to which K.T. is entitled.9
9
Plaintiff also argues that the October 2008 HOD should
be reversed because “Ms. Taylor’s ability to participate in the
decision-making process” was impeded by the District’s failure to
timely authorize an independent evaluation. See Pl.’s SJ Mot. at
10-11 (citing 20 U.S.C. § 1415(f)(3)(E)(ii)(II) for the
proposition that a procedural violation constitutes a denial of
FAPE when it “significantly impede[s] the parent’s opportunity to
participate in the decision-making process regarding the
provision of a FAPE”). The Court finds that the hearing officer
did not err in reaching a contrary determination based on the
record that was before her. See AR 7, ¶ 8 (“Numerous attempts
were made to include the Parent in an eligibility meeting; six
dates were offered. However, parent’s counsel and/or advocate
were not available.”); see also Def.’s SMF ¶¶ 8-14. Instead, to
the extent that this argument has any possible merit it is
dependent upon the consideration of plaintiff’s newly proffered
evidence. See Pl.’s Combined Opp’n & Reply at 4-5 (“[An] [MDT]
meeting would have done the Plaintiff little good in the absence
of an adequate expert evaluation. The existing evaluation had
specifically found K.T. ineligible [for special education
services]. Only after the final evaluation was done did DCPS
14
IV. CONCLUSION
For the reasons set forth above, the Court REMANDS this
action to the hearing officer for additional fact-finding and
further consideration on the merits. The parties’ motions for
summary judgment are therefore DENIED without prejudice. A
separate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
March 16, 2011
develop an [individualized education program] for K.T. and
finally begin to address his needs.” (internal citations
omitted)). Because the Court concludes that remand for
consideration of plaintiff’s newly proffered evidence is
appropriate, the Court need not further discuss the merits of
plaintiff’s argument on this issue.
15
| {
"pile_set_name": "FreeLaw"
} |
09/20/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 9, 2019
DEANGELO NORTON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 15-00754 J. Robert Carter, Jr., Judge
___________________________________
No. W2018-01420-CCA-R3-PC
___________________________________
The petitioner, Deangelo Norton, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel at trial. After our review of the record, briefs, and applicable law, we affirm the
denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and ROBERT W. WEDEMEYER, JJ., joined.
Eric J. Montierth, Memphis, Tennessee, for the appellant, DeAngelo Norton.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On direct appeal, this Court summarized the facts surrounding the petitioner’s
convictions for rape of a child and aggravated sexual battery, as follows:
The victim, who was seven years old at the time of the offenses,
lived in an apartment in Memphis with his parents and younger sister.
During 2011 and 2012, the [petitioner], the victim’s uncle, occasionally
babysat the victim and his sister. On August 23, 2012, the victim’s mother
received a disturbing telephone call at work from her mother, so she went
home to speak with the victim. She asked the victim, “Ha[s] [the
petitioner] ever d[one] anything to you? Ha[s] he ever touched you?” The
victim began to cry and appeared nervous. After being reassured by his
mother that he would not get in trouble, the victim confirmed that the
[petitioner] had touched him inappropriately. In response, she promised the
victim he would never see the [petitioner] again.
The victim testified that he felt scared when he told his mother about
the sexual abuse and offered this summation of the first occurrence:
[The petitioner] took me in my room, told me not to tell
anyone. He put me on my bed. He stuck his peewee in my
butt and . . . [w]e went into the hallway, he put his thing in
my mouth and told me not to let anyone else do it to me.
The victim said that the [petitioner] had “touched [him] more than
one time on [his] butt” and that the last incident took place shortly before
his mother asked him about the abuse.
On August 24, 2012, the day after the victim disclosed the sexual
abuse to his mother, she took the victim to Christ Community Health
Services where Dr. Elizabeth Elliott treated him and noted the reason for
his visit as follows:
[The victim] is brought in today by his mother due to concern
for possible abuse. [The victim] reports that [the petitioner]
used to hurt him when the [petitioner] was keeping him and
his sister while his mom was at work. He says that the
[petitioner] would place his boy part in [the victim’s] mouth
and also in his butt. He cannot tell me the last time that it
happened. Tells me that it happened a lot. He says that the
[petitioner] only did it to him and not his sister.
Dr. Elliot then explained her examination of the victim:
I evaluated [the victim’s] face, specifically the eyes and nose
and the mouth looking for signs of trauma. Evaluated lungs,
heart and abdomen. Also his genital urinary tract, specifically
looking at the penis for signs of urinary discharge or any
lesions which were not present. Also examined the testicles
-2-
and the anus which appeared normal. Looked at his skin for
rashes and there were none as well.
Dr. Elliot informed the victim and his mother that there were no
obvious physical signs of sexual abuse, but that finding did not mean the
abuse did not happen. Due to the victim’s allegations, his mother and Dr.
Elliot reported the abuse to the Department of Children’s Services
(“DCS”). The victim’s mother also informed Dr. Elliott she would file a
police report.
Subsequently, the victim’s mother took the victim to the Memphis
Child Advocacy Center for an interview on October 23, 2012. The victim
was taken into a room where only the forensic interviewer, Teresa Onry,
and the victim were present. Law enforcement officers assigned to the case
monitored the interview via video from a separate room and telephoned Ms.
Onry at the end of the interview with additional questions.
Ms. Onry said that she asked the victim open-ended questions during
the interview because children are vulnerable to suggestibility. The victim
told Ms. Onry that the [petitioner] occasionally picked him up from school
when his mother was at work. One day after school, the [petitioner] put his
penis in the victim’s mouth while they were in the hallway of the victim’s
apartment and told the victim not to let anyone else do that. The
[petitioner] them took the victim into the victim’s room and put his penis in
the victim’s anus. According to the victim, the [petitioner] did this on more
than one occasion, and it “felt bad.” The victim eventually reported the
abuse to his mother after she asked if the [petitioner] had ever touched him,
and she subsequently took him to see a doctor because his “butt kept
hurting.”
The victim’s mother next took him to the Memphis Sexual Assault
Resource Center (“MSARC”) on October 25, 2012, where he was
examined by Judy Pinson, who was accepted by the trial court as an expert
in forensic nursing. Ms. Pinson documented the victim’s visit as follows:
Seven and a half year old male referred by DCS and brought
in by mother who reports that [the victim] told her in August
that [the petitioner] touched him and penetrated him anally
and forced fellatio. This occurred more than five times.
Mother took child to the Christ Community Health Center in
August where he was first questioned and examined.
-3-
Ms. Pinson said that she did not find any signs of sexual abuse
during her examination of the victim. However, physical injuries are not
always found in sexual abuse cases, particularly when there is a lapse in
time between the date of abuse and the date of treatment.
Dr. Karen Lakin, assistant professor of pediatrics at the University of
Tennessee and the medical director of the LeBonheur Cares Program,
testified as an expert in child abuse pediatrics. She said that she reviewed
the victim’s medical records from Christ Community Health Services and
from MSARC. Those records indicated that no physical evidence of abuse
was found during either visit. However, the absence of a traumatic medical
finding on physical examination following a sexual assault is not
unexpected. Based on her review of the records, Dr. Lakin said she would
not expect the victim’s healthcare providers to have found physical signs of
abuse. Young children often have a poor grasp of time lapse, and it appears
there was a delayed disclosure of the abuse. Moreover, any injuries to the
victim’s anus would have healed prior to his treatment because the mucosal
portion of the anus heals very rapidly.
On cross-examination, Dr. Lakin acknowledged a 2014 study, Anal
Signs of Child Sexual Abuse: A Case-Control Study, based on the authors’
analysis of every eligible child sexual abuse case from 1990 to 2007. Of
those children suspected of being sexually abused, seventy-four percent
showed one or more signs of anal injury. Dr. Lakin further acknowledged
another study from 2013, Anal Findings in Children With or Without
Probable Anal Penetration, which also showed a significant correlation
between suspected juvenile victims of sexual abuse and anal soiling,
fissure, and laceration. The key to both studies, however, was the
proximity in time of the suspected sexual abuse to the physical
examination. Also, there was a risk of bias with both studies, particularly
the second, where the reviewers examined photographs of children they
knew in advance had been sexually abused. While the studies found that
redness and anal fissures might be present in juvenile victims of sexual
abuse, neither study indicated that those findings must be present when
sexual abuse has occurred.
Testifying on behalf of the [petitioner], Myneisha Mason, the
[petitioner’s] sister, said that in 2011 and 2012 the [petitioner] lived with
their paralyzed mother and took care of her. When Ms. Mason learned of
the victim’s accusations, she spoke with the [petitioner], who denied any
-4-
inappropriate contact. After the allegations had been made, Ms. Mason
attended a birthday party for her mother on June 17, 2013. Both the victim
and the [petitioner] were at the party, and the victim appeared calm and
happy. Ms. Mason acknowledged that she and the victim’s mother have a
poor relationship.
Warren Norton, the [petitioner’s] brother, testified that he was angry,
confused, and shocked when he learned about the allegations against the
[petitioner]. He said that when the victim saw the [petitioner] at the party
on June 17, 2013, the victim ran and jumped into the [petitioner’s] arms.
Mr. Norton did not know if the [petitioner] had ever babysat the victim.
Michael Hodo, another brother of the [petitioner] testified that in
June 2012 the victim’s father, who was in jail at the time, called and asked
him to stay with the victim’s mother and their children during his
incarceration. Ms. Hodo then lived with her, the victim, and the victim’s
sister for approximately six months. During that time period, he was only
alone with the children once and did not remember a babysitter coming to
the apartment. He was at the apartment when the victim told his mother
about the sexual encounters with the [petitioner], but he never talked to the
victim about the allegations.
The [petitioner] testified that he dropped out of school in the ninth
grade to care for his paralyzed mother. He did not have a vehicle at the
time, but his mother’s nurse allowed him to borrow her car occasionally. In
addition to caring for his ailing mother, in 2011 and 2012, the [petitioner]
babysat the victim and his sister. In August 2012, the victim’s mother
telephoned the [petitioner] and informed him of the victim’s accusations.
She then asked the [petitioner] if he had ever touched the victim
inappropriately. In response, the [petitioner] “cussed her out” and hung up
the phone. Following the telephone call, the [petitioner] did not see the
victim again until the birthday party for his mother on June 17, 2013. He
and the victim played together at the party, and the victim’s mother smiled
as she watched them play. The [petitioner] denied sexually abusing the
victim and stated, “I know for a fact I did not molest [the victim].”
According to the [petitioner], the victim’s reason for accusing the
[petitioner] remains a mystery.
State v. Deangelo Norton, No. W2016-02069-CCA-R3-CD, 2017 WL 2817661 at *1-3
(Tenn. Crim. App. June 29, 2017), perm. app. denied (Tenn. Sept. 22, 2017).
-5-
Following deliberations, the jury found the petitioner guilty of rape of a child and
aggravated sexual battery. The trial court merged the convictions, and the petitioner was
sentenced to twenty-five years at 100%. Id. at 1. After the denial of his direct appeal, the
petitioner filed a timely pro se petition for post-conviction relief. The post-conviction
court appointed counsel, and the petitioner filed an amended petition for post-conviction
relief. Although the petitioner alleged a number of claims in his petition and at the
evidentiary hearing, he confines himself to two issues on appeal, arguing trial counsel
was ineffective for failing to (1) present a child abuse expert at trial and (2) object to the
State’s improper closing argument. Accordingly, we will summarize the evidentiary
hearing testimony relevant to those claims.
Trial counsel, who represented the petitioner from arraignment through
sentencing, testified the majority of the proof against the petitioner came from the
victim’s testimony and agreed there was no physical proof of sexual abuse. Trial counsel
wanted to present a theory to explain why the victim would lie about the allegations.
However, if the defense’s theory was presented, the trial court would also allow evidence
of a “detrimental” telephone call which suggested there were additional accusations
against the petitioner. Trial counsel felt this problem “boxed [them] in” and prevented
him from presenting a theory explaining why the victim would lie.
Trial counsel described Dr. Karen Lakin, who testified as an expert for the State
regarding the lack of physical injuries on the victim, as a “compelling” and “powerful
witness.” To combat Dr. Lakin’s testimony, trial counsel cross-examined her using
several scientific studies, including a study which found seventy-four percent of children
of suspected anal sexual abuse showed physical signs or damage. However, this line of
questioning was not effective because, even when trial counsel believed he was right,
“there is no winning an argument with a doctor.” Specifically, Dr. Lakin repeatedly told
trial counsel he was “misinterpreting” the results of the studies. Trial counsel testified
that, in retrospect, he should have presented his own expert to counter Dr. Lakin’s
testimony. When asked why he did not obtain an expert for the defense, trial counsel
stated he did not believe the lack of physical injuries would be a “big[] part of the trial.”
On cross-examination, trial counsel agreed he “hammered on” the fact that the
victim did not have any physical injuries, mentioning it several times during his closing
argument. He also agreed Dr. Lakin did not refute the studies themselves but disputed
their methodology. Although he “wish[ed]” he had requested the funds for an expert, at
the time, trial counsel “did not think [he] would get one.”
Regarding the prosecutor’s statement during closing argument, trial counsel
testified the prosecutor placed additional emphasis on the word “you” when he quoted the
victim’s mother who had asked the victim, “Did [the petitioner] ever touch you?” The
-6-
emphasis on “you” suggested there were additional accusers. Although trial counsel did
not object at trial, he included this issue in the petitioner’s motion for new trial. Trial
counsel testified he was unsure why he did not object to this statement at trial, but he
knew “the process in this particular courtroom” was to overrule objections during closing
argument and issue a curative instruction. Trial counsel also testified he did not want to
object frequently because it might “annoy” the jury. On cross-examination, trial counsel
agreed he may have refrained from objecting to the statement for fear of drawing
attention to the suggestion of additional accusers.
The petitioner testified he met with trial counsel “two or three times” prior to trial
and agreed he received a copy of his discovery. The petitioner felt trial counsel’s
representation was ineffective because trial counsel did not “have the proper experience”
and had never tried a rape of a child case before. The petitioner also testified he could
not recall the prosecutor’s closing argument.
After its review of the evidence presented, the post-conviction court denied relief,
and this timely appeal followed.
Analysis
On appeal, the petitioner argues trial counsel was ineffective for failing to present
a child abuse expert at trial and failing to object to the prosecutor’s improper statement
during closing argument. The State contends the post-conviction court correctly denied
the petition as the petitioner failed to meet his burden. Following our review of the
record and submissions of the parties, we affirm the judgment of the post-conviction
court.
The petitioner bears the burden of proving his post-conviction factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de
novo, affording a presumption of correctness only to the post-conviction court’s findings
of fact. Id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
-7-
To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
Initially, we note the statement of facts section of the petitioner’s brief fails to
comply with Tennessee Rule of Appellate Procedure 27(a)(6), which requires “[a]
statement of facts, setting forth the facts relevant to the issues presented for review with
appropriate references to the record.” Here, the petitioner’s statement of facts does not
include any references to the record. Furthermore, the petitioner’s brief also fails to
-8-
comply with Tennessee Rule of Appellate Procedure 27(a)(7)(A), which requires an
argument section setting forth “the contentions of the appellant with respect to the issues
presented, and the reasons therefore, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the
record[.]” The petitioner’s argument does not include any references to the record, and
the petitioner’s citations to authority are sparse at best. “[I]t is not the duty of this [C]ourt
to scour the record in search of the facts supporting a defendant’s argument.” State v.
Sharod Winford Moore, No. M2015-00663-CCA-R3-CD, 2016 WL 3610438 at *8
(Tenn. Crim. App. June 28, 2016), perm. app. denied (Tenn. Nov. 17, 2016). Failure to
comply with these basics rules constitutes a waiver of the petitioner’s issues. Tenn. Ct.
Crim. App. R. 10 (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”). Waiver
notwithstanding, we will consider the petitioner’s arguments on their merits.
I. Failure to Present Expert Witness
The petitioner argues trial counsel was ineffective for failing to present a child
abuse expert to counter Dr. Lakin’s testimony. The petitioner contends Dr. Lakin’s
testimony carried “significant weight” with the jury, and a defense expert was needed to
counter her testimony. The State contends the petitioner failed to establish prejudice.
At the evidentiary hearing, trial counsel described Dr. Lakin’s testimony as
“extensive,” “credible,” and “powerful.” Because he did not believe the trial court would
grant him the funds for a defense expert, trial counsel decided to cross-examine Dr. Lakin
using several studies which found a high correlation between anal sexual abuse and
physical injuries. However, Dr. Lakin testified trial counsel was “misinterpreting” the
findings of the studies, and trial counsel testified he “lost control” of the cross-
examination because “there is no winning an argument with a doctor.” He agreed it
would have been helpful to have a child abuse expert for the defense who could rebut Dr.
Lakin’s testimony and, in hindsight, would request the funds from the trial court.
Although trial counsel agreed he should have requested the funds for a defense
expert, the petitioner failed to present a child abuse expert at the evidentiary hearing. “To
succeed on a claim of ineffective assistance of counsel for failure to call a witness at trial,
a post-conviction petitioner should present that witness at the post-conviction hearing.”
Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990)). “As a general rule, this is the only way the petitioner
can establish that . . . the failure to have a known witness present or call the witness to the
stand resulted in the denial of critical evidence which inured to the prejudice of the
petitioner.” Id. Because the petitioner failed to call an expert on sexual abuse injuries at
-9-
the post-conviction hearing, he cannot meet his burden. Id. The petitioner is not entitled
to relief on this issue.
II. Failure to Object to Closing Argument
The petitioner also argues trial counsel was ineffective for failing to object to an
improper statement by the prosecutor during closing argument. Specifically, the
petitioner contends the prosecutor used improper inflection when quoting the victim’s
mother. The State contends trial counsel made a tactical decision not to object.
“Closing arguments serve to sharpen and to clarify the issues that must be resolved
in a criminal case” and enable “the opposing lawyers to present their theory of the case
and to point out the strengths and weaknesses in the evidence to the jury.” State v.
Hawkins. 519 S.W.3d 1, 47 (Tenn. 2017) (citations and quotations omitted). Because
counsel in criminal cases are “‘expected to be zealous advocates,’” they are afforded
“‘great latitude in both the style and the substance of their arguments.’” Id. (quoting State
v. Banks, 271 S.W.3d 90, 130-31 (Tenn. 2008)). Prosecutors, however, “must not lose
sight of their duty to seek justice impartially and their obligation ‘to see to it that the
defendant receives a fair trial.’” Id. at 47-48 (quoting Banks, 271 S.W.3d at 131).
Accordingly, a “prosecutor’s closing argument must be temperate, must be based on the
evidence introduced at trial, and must be pertinent to the issues in the case.” Banks, 271
S.W.3d at 131 (citations omitted). “[P]rosecutors, no less than defense counsel, may use
colorful and forceful language in their closing arguments, as long as they do not stray
from the evidence and the reasonable inferences to be drawn from the evidence, or make
derogatory remarks or appeal to the jurors’ prejudices.” Id. (citations omitted).
There are five generally recognized areas of prosecutorial misconduct that can
occur during closing arguments:
1. It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his
personal belief or opinion as to the truth or falsity of any testimony or
evidence or the guilt of the defendant.
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury.
- 10 -
4. The prosecutor should refrain from argument which would divert the
jury from its duty to decide the case on evidence, by injecting issues
broader than guilt or innocence of the accused under the controlling law.
5. It is unprofessional conduct for a prosecutor to intentionally refer to
or argue facts outside the record unless the facts are matters of common
public knowledge.
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (internal citations omitted).
Several times during closing argument, the prosecutor quoted a conversation
between the victim and his mother where, after receiving a “disturbing” telephone call,
the victim’s mother asked the victim, “Did [the petitioner] ever touch you?” However,
the petitioner contends the prosecutor placed additional emphasis on the word “you”
which suggested there were additional accusers.
At the post-conviction hearing, trial counsel testified he argued the statement was
improper in the petitioner’s motion for new trial. However, trial counsel acknowledged
he did not lodge a contemporaneous objection. Although he could not recall why he did
not object to the statement, trial counsel testified objections during closing argument are
usually overruled in “this particular courtroom,” and he did not want the jury to get
“annoyed at [him].” On cross-examination, trial counsel testified he sometimes chooses
not to object during closing argument to avoid drawing attention to certain points, and he
agreed this “probably” came into play during his decision not to object to the prosecutor’s
statement in this case. The petitioner was unable to recall what was said during closing
arguments.
Initially, we note, as previously discussed, the petitioner failed to make any
references to the record in his brief. Because the prosecutor repeated the quote from the
victim’s mother several times during closing argument, we cannot be sure which instance
the petitioner takes issue with on appeal. Furthermore, because we have a cold record
before us, we are unable to discern nuances of tone, inflection, or body language.
Therefore, despite trial counsel’s testimony, we find the petitioner has failed to prove his
factual allegations regarding this issue by clear and convincing evidence.
Additionally, trial counsel’s testimony indicates he made a strategic and informed
decision not to object to the prosecutor’s statement because he thought the objection
would be overruled, he did not want to annoy the jury, and he did not want to draw
attention to the prosecutor’s point. Implicit in the post-conviction court’s order denying
relief is an accreditation of trial counsel’s testimony, and nothing in the record
preponderates against the post-conviction court’s factual findings. See Tidwell, 922
- 11 -
S.W.2d at 500. In addition, the fact that a trial strategy or tactic failed or was detrimental
to the defense does not, alone, support a claim for ineffective assistance of counsel.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is given to
sound tactical decisions made after adequate preparation for the case. Id. The petitioner
is not entitled to relief on this issue.
Conclusion
Based upon the foregoing authorities and reasoning, we affirm the post-conviction
court’s judgment denying the petitioner post-conviction relief.
____________________________________
J. ROSS DYER, JUDGE
- 12 -
| {
"pile_set_name": "FreeLaw"
} |
634 F.Supp.2d 1009 (2007)
SONOMA FOODS, INC., Plaintiff,
v.
SONOMA CHEESE FACTORY, LLC, et al., Defendants.
and Related Counterclaims.
No. C 07-00554 JSW.
United States District Court, N.D. California.
July 23, 2007.
*1013 John Harvey Patton, Kathryn Jane Allen, Robert W. Shapiro, Shapior Buchman Provine & Patton LLP, Walnut Creek, CA, for Plaintiff.
Curtis Jackson Morris, Law Offices of Curtis J. Morris, Xavier Adrien Marie La-voipierre, Law Office of Xavier A.M. La-voipierre, Sonoma, CA, Michael J. Ioannou, Lita M. Verrier, Ropers, Majeski, Kohn & Bentley, Bobbie N. Eftekar, Daniel S. Mount, Kathryn Grace Murray, On Lu, Daniel Harlan Fingerman, Mount & Stoelker, P.C., San Jose, CA, Elise R. Vasquez, Ropers Majeski Kohn & Bently, Redwood City, CA, for Defendants/Counter-claimant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S SPECIAL MOTION TO STRIKE AND PLAINTIFF'S MOTION TO DISMISS
JEFFREY S. WHITE, District Judge.
Now before the Court are plaintiff and counter-defendant Sonoma Foods, Inc.'s ("Sonoma Foods") special motion to strike pursuant to California Code of Civil Procedure § 425.16 and motion to dismiss the counter-claims filed by defendant and counter claimants Sonoma Cheese Factory, LLC ("Sonoma Cheese Factory") and counter claimant L. Peter Viviani ("Peter Viviani") (collectively, "Counter-claimants").[1] Having considered the parties' arguments, relevant legal authority, and having had the benefit of oral argument, the Court hereby grants in part and denies in part the special motion to strike and the motion to dismiss the counter-claims.
BACKGROUND
Sonoma Foods filed this trademark infringement action against Sonoma Cheese Factory. Sonoma Cheese Factory and Peter Viviani, Sonoma Cheese Factory's owner, then asserted counter-claims against Sonoma Foods.
The following facts are taken from the counter-complaint: Peter Viviani's father started a family business under the name Sonoma Cheese Factory in 1931 through which they sold "Sonoma Jack" brand cheese products. (Counter-compl., ¶ 8.) Peter Viviani started working for the family business in 1946 and Peter Viviani's son, C. David Viviani ("David Viviani") joined the business in 1969. (Id.) The family business includes a local storefront on 2 Sprain Street. (Id.)
In 1959, Peter Viviani formed Galaxy Products, Inc. as a successor-in-interest to the original Sonoma Cheese Factory and added manufacturing and wholesale distribution to the family business. (Id., ¶ 9.) In 1991, Galaxy Products, Inc. was renamed Sonoma Foods, Inc. (Id.) Peter Viviani served as the Vice President, Chief Financial Officer and Secretary of Sonoma Foods and owned 51 percent of the corporation's stock, while David Viviani served as President and owned the remaining 49 percent of the stock. (Id.)
*1014 In 2001, Peter and David Viviani decided to divide the family business. They agreed that Peter Viviani would own and operate the retail operations and that David Viviani would own and operate the manufacturing and wholesale distribution operations. (Id., ¶ 10.) Pursuant to this agreement, the directors of Sonoma Foods held a special meeting on December 31, 2001 to restructure the business. At this meeting, Sonoma Foods formed Sonoma Cheese Factory to own and run the retail operations. (Id.) Sonoma Foods was to manufacture cheese products and Sonoma Cheese Factory was to market, advertise and sell the cheese products under its applicable trademarks and trade names. Accordingly, all of the assets and liabilities relating to Sonoma Foods' ownership and operation of the retail operations, including trademarks, were supposed to be transferred to Sonoma Cheese Factory. (Id.) In exchange, Peter Viviani's transferred his shares of Sonoma Foods to David Viviani. (Id.) The corporate officers were directed to prepare all the documents needed to execute this agreed-upon restructuring of the family business. (Id.)
The trademarks that Counter-claimants allege should have been transferred to Sonoma Cheese Factory pursuant to the agreement reached on December 31, 2001 ("December 2001 Agreement") include: (1) Sonoma Cheese Factory & design (Reg. No. 1111024) in class 29 for use in association with cheese; (2) Sonoma Cheese Factory (Reg. No. 1386303), a service mark in class 42 for restaurant services; (3) Sonoma Deli (Reg. No. 1748715) in class 30 for sandwiches; (4) Sonoma (Reg. No. 1,334,539) in class 29 for use in association with cheese; (5) Sonoma Blue (Reg. No. 2610926) in class 29 for use in association with cheese; (6) Sonoma Jack & design (Reg. No. 1099709) in class 29 for use in association with cheese; and (7) "Sonoma Jack (stylized)" (Reg. No. 1099707) in class 29 for use in association with cheese (collectively, "Retail Trademarks"). (Id., ¶ 12.) In violation of the December 2001 Agreement, Sonoma Foods failed to transfer these Retail Trademarks to Sonoma Cheese Factory. (Id., ¶ 13.)
Sonoma Foods also registered three additional trademarks that are derived from the activities of, and are necessary to, the operation of Sonoma Cheese Factory, and thus, should have been registered for the benefit of Sonoma Cheese Factory. (Id., ¶ 14.)
Counter-claimants assert the following counter-claims against Sonoma Foods based on its alleged failure to transfer the Retail Trademarks: (1) breach of contract; (2) negligence; (3) common law fraud; (4) constructive fraud under California Civil Code § 1573; (5) breach of fiduciary duty; (6) rescission; and (7) financial elder abuse.
Counter-claimants also bring a claim for false or fraudulent registration of trademarks. Under this claim, they allege that pursuant to the December 2001 Agreement, Sonoma Cheese Factory was entitled to all trademarks relating to the retail operations and that Sonoma Foods filed for and received such trademarks. (Id., ¶ 39.) Sonoma Foods obtained registered trademarks from the United States Patent and Trademark Office ("PTO") by false or fraudulent declaration or representation. (Id., ¶ 40.) Counter-claimants also allege that the above conduct constitutes unfair trade practices and unfair competition pursuant to 15 U.S.C. § 1125(a).
Incorporating the above allegations, Counter-claimants bring a claim for unfair competition under California Business and Professions Code § 17200 (Section 17200). (Counter-compl., ¶¶ 45, 46.) Counter-claimants also bring a claim entitled common law injury to business reputation based on Sonoma Foods' alleged assertion of ownership of the Retail Trademarks and *1015 its assertion that Sonoma Cheese Factory does not enjoy rights in the Retail Trademarks. (Id., ¶ 49.) Similarly, Counter-claimants bring a claim entitled unjust enrichment, alleging that Sonoma Foods would be unjustly enriched if the Court were to compel Sonoma Cheese Factory to stop using the Retail Trademarks and pay to Sonoma Foods all its profits derived from its sales under the Retail Trademarks. (Id., ¶¶ 53, 54.)
Finally, Counter-claimants bring an action for declaratory relief. Under this claim, they allege that Sonoma Foods failed transfer all trademarks related and necessary to the retail operations, including the Retail Trademarks, improperly filed for and registered trademarks related and necessary to the retail operations, and is infringing Sonoma Cheese Factory's trademarks, including the Retail Trademarks. (Id., ¶ 61.)
Sonoma Foods now moves to strike these counter-claims pursuant to California Code of Civil Procedure § 425.16 ("Section 425.16") and to dismiss them pursuant to Federal Rule of Civil Procedure 12(b) (6) ("Rule 12(b)(6)").
ANALYSIS
A. Legal Standard for Special Motion to Strike.
California's anti-SLAPP ("Strategic Lawsuit Against Public Participation") statute provides a mechanism for a defendant to strike civil actions brought primarily to chill the exercise of free speech. Cal.Code Civil Proc. § 425.16(b)(1); see also Metabolife International, Inc. v. Wornick, 213 F.Supp.2d 1220, 1221 (S.D.Cal. 2002). The California Legislature passed the statute and explicitly recognized "the public interest to encourage continued participation in matters of public significance. . . and [found] that this participation should not be chilled through abuse of the judicial process." Metabolife, 213 F.Supp.2d at 1221 (citations omitted). Thus, to deter such chilling, a prevailing defendant on a special motion to strike shall be entitled to recover his or her reasonable attorney's fees and costs. Id., citing Cal.Code Civ. Proc. § 425.16(c).
Section 425.16 provides, in relevant part, that
A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
As used in this section, `act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a . . . judicial proceeding, or any other official proceeding authorized by law. . . .
Cal.Code Civ. Proc. §§ 425.16(b)(1); 425.16(e).
A special motion to strike a SLAPP suit involves a two-step analysis. First, the court must decide whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. See, e.g., City of Cotati v. Cashman, 29 Cal.4th 69, 76, 124 Cal.Rptr.2d 519, 52 P.3d 695 (2002). The defendant may meet this threshold burden by showing that the act which forms the basis for the plaintiff's cause of action was a written or oral statement made before a judicial proceeding. See Church of Scientology of California v. Wollersheim, 42 Cal.App.4th 628, 646, 49 Cal.Rptr.2d 620 (1996). Courts examine the "principal thrust or gravamen" of the *1016 claims at issue to determine whether they arise from protected activity. Mann v. Quality Old Time Service, Inc., 120 Cal. App.4th 90, 103, 15 Cal.Rptr.3d 215 (2004). "Where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.15 unless the protected activity is `merely incidental' to the unprotected conduct." Id. (quoting Scott v. Metabolife Int'l., Inc., 115 Cal.App.4th 404, 419, 9 Cal.Rptr.3d 242 (2004)).
If the defendant establishes a prima facie case that the claims arise from protected activity, the burden then shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim. Wollersheim, 42 Cal.App.4th at 646, 49 Cal. Rptr.2d 620; see also Cotati, 29 Cal.4th at 76, 124 Cal.Rptr.2d 519, 52 P.3d 695. In making its determination, the trial court is required to consider the pleadings and supporting and opposing affidavits stating the facts upon which liability or defense is based. See Cal.Code Civ. Proc. § 425.16(b).
B. Sonoma Foods' Motion to Strike.
1. Federal Claims Are Not Subject to Section 425.16.
Although Section 425.16 "applies to state law claims brought in federal court, it does not apply to federal question claims in federal court because such application would frustrate substantive federal rights." Bulletin Displays, LLC v. Regency Outdoor Adver., Inc., 448 F.Supp.2d 1172, 1180 (C.D.Cal.2006); see also In re Bah, 321 B.R. 41, 46 (9th Cir. BAP 2005); Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F.Supp.2d 1127, 1130 (N.D.Cal.1999). Accordingly, the Court will not apply Sonoma Foods' special motion to strike to Counter-claimants' claims for false or fraudulent registration of trademarks or for unfair trade practices and unfair competition pursuant to 15 U.S.C. § 1125(a).
2. Sonoma Foods' Threshold Burden of Demonstrating Challenged Cause of Actions Arise From Protected Activity.
Sonoma Foods argues that all of the counter-claims "arise from" protected activity because they were filed in retaliation for Sonoma Foods' filing of this action. (Mot. at 9.) With respect to specific claims, Sonoma Foods argues that: (1) the tenth counter-claim for common law injury to business reputation is based on Sonoma Foods' attempts to protect its trademarks, including the filing of this lawsuit; (2) the eleventh counter-claim for unjust enrichment is also based on Sonoma Foods' lawsuit; and (3) the counter-claims for fraud and breach of contract are based on Sonoma Foods' alleged failure to assign them trademarks.[2] (Mot. at 9-11.)
The constitutional right to petition includes the basic act of filing and is thus protected activity under Section 425.16. See Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 (1999). Nevertheless, the fact that Counter-claimants filed their counter-claims after Sonoma Foods initiated this lawsuit does not mean that the counter-claims "arise from" protected activity. Flores v. Emerich & Fike, 416 F.Supp.2d 885, 897 (E.D.Cal.2006). "Nor does the fact `[t]hat a cause of action arguably may have been *1017 triggered by protected activity' necessarily mean that it arises from such activity." Id. (quoting Cotati, 29 Cal.4th at 78, 124 Cal.Rptr.2d 519, 52 P.3d 695). Rather, the critical point is whether the cause of action itself was based on an act in furtherance of the nonmoving party's right of petition or free speech. Id.; see also Cotati, 29 Cal.4th at 78, 124 Cal.Rptr.2d 519, 52 P.3d 695. In other words, the acts underlying the cause of action at issue "must itself have been an act in furtherance of the right of petition or free speech." Cotati, 29 Cal.4th at 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (emphasis in original). Therefore, even if Counter-claimants filed their counter-claims in response to Sonoma Foods' initiating this action, unless Sonoma Foods demonstrates that the actual acts underlying each claim at issue were acts taken by Sonoma Foods in furtherance of the right of petition or free speech, Sonoma Foods has not made the required threshold showing for its special motion to strike. The Court thus denies Sonoma Foods' motion as it relates to the entire counter-complaint generally. To the extent Sonoma Foods proffers arguments as to the underlying facts of specific counter-claims, the Court will address each argument in turn.
a. Tenth and Eleventh Counter-claims: Common Law Injury to Business Reputation & Unjust Enrichment.
The facts underlying the tenth and eleventh counter-claims are premised on Sonoma Foods' filing of this lawsuit. Counter-claimants claim for "common law injury to business reputation" is based on Sonoma Foods' alleged assertion of ownership of the Retail Trademarks and its assertion that Sonoma Cheese Factory does not enjoy the rights in the Retail Trademarks. (Counter-compl., ¶ 49.) Although Counter-claimants do not allege how or when Sonoma Foods engaged in such alleged conduct, Sonoma Foods asserts trademark rights in its complaint in this action and accuses Sonoma Cheese Factory of infringing such rights. Under their claim for unjust enrichment, Counter-claimants allege that Sonoma Foods would be "unjustly enriched if the Court were to compel [Sonoma] Cheese Factory to stop using the Retail Trademarks" and pay to Sonoma Foods all its profits derived from its sales under the Retail Trademarks. (Id., ¶¶ 53, 54.) Counter-claimants are challenging the relief Sonoma Foods is seeking in its infringement complaint. The tenth and eleventh counter-claims thus "arise from" protected activity. See Wollersheim, 42 Cal.App.4th at 646, 49 Cal.Rptr.2d 620.
Counter-claimants argue that an exception to the Anti-SLAPP provisions set forth in California Code of Civil Procedure § 425.17(c) is applicable to their counter-claims. Section 425.17(c) provides in pertinent part:
Section 425.16 [the Anti-SLAPP provisions] do[ ] not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:
(1) The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services.
(2) The intended audience is an actual or potential buyer or customer, or a *1018 person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer . . . .
As discussed above, the tenth and eleventh counter-claims are premised on Sonoma Foods' filing of this lawsuit. The statements made in Sonoma Foods' complaint were not "made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services or made in the course of delivering" Sonoma Foods' goods or services. See Cal.Code Civ. Proc. § 425.17(c)(1). Therefore, the Court finds that this exception is not applicable here, and therefore, Counter-claimants' tenth and eleventh counter-claims are subject to the Anti-SLAPP provisions.
b. Counter-claims for Fraud and Breach of Contract
The counter-claims for fraud and breach of contract are based on Sonoma Foods' alleged failure to assign Counter-claimants the Retail Trademarks. They arise out of the alleged December 2001 Agreement and Sonoma Foods' alleged failure to act as promised, not on any protected activity. Accordingly, the Court finds that Sonoma Foods has not meet its threshold burden with respect to the counter-claims for fraud and breach of contract and thus denies the special motion to strike as to these claims.
2. Counter-claimants' Burden of Demonstrating a Probability of Prevailing on Merits.
Once Sonoma Foods has made the threshold showing, the burden shifts to Counter-claimants to establish a probability of prevailing at trial. See Wollersheim, 42 Cal.App.4th at 646, 49 Cal.Rptr.2d 620. Counter-claimants need not prove the challenged claims. "Rather, the court considers whether the plaintiff has made a prima facie showing of facts based on competent admissible evidence that would, if proved, support a judgment in the plaintiff's favor." Mann, 120 Cal.App.4th at 105, 15 Cal.Rptr.3d 215. A plaintiff need only establish the challenged cause of action has "minimal merit." Navellier v. Sletten, 29 Cal.4th 82, 94, 124 Cal.Rptr.2d 530, 52 P.3d 703 (2002). Moreover, where "a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure. . . . [O]nce a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands." Mann, 120 Cal.App.4th at 106, 15 Cal.Rptr.3d 215 (emphasis in original); see also Simmons v. Allstate Ins. Co., 92 Cal.App.4th 1068, 1073, 112 Cal.Rptr.2d 397 (2001) ("a SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing") (emphasis in original).
Counter-claimants have not demonstrated that their purported claims for common law injury to business relations or unjust enrichment are valid claims under California law. "[T]here is no cause of action in California for unjust enrichment." Melchior v. New Line Productions, Inc., 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347 (2003). "Common law injury to business relations" is a form of damages, and is not an independent cause of action. Although it is their burden to show their claims are not meritless, Counter-claimants have not provided any authority demonstrating that either of these purported claims are valid ones under California law. Accordingly, the Court grants the motion to strike as to these two claims.
C. Legal Standard on a Motion to Dismiss.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) *1019 where the pleadings fail to state a claim upon which relief can be granted. A motion to dismiss should not be granted unless it appears beyond a doubt that a plaintiff can show no set of facts supporting his or her claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Thus, dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The complaint is construed in the light most favorable to the non-moving party and all material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986). The court, however, is not required to accept legal conclusions cast in the form of factual allegations, if those conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss. Such consideration does not convert the motion to dismiss into a motion for summary judgment. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003).
D. Sonoma Foods' Motion.
Sonoma Foods moves to dismiss each of the counter-claims under Rule 12(b)(6) for failure to state a claim. With the exception of the tenth and eleventh counter-claims that the Court determined should be struck, the Court will address each claim in turn.
1. Breach of Contract.
Sonoma Foods argues that Counter-claimants fail to allege sufficient facts to state all the required elements for their contract claim and that any such claim is time barred. At the hearing on Sonoma Foods' motions, Counter-claimants admitted that they pled this claim too broadly. According to Counter-Claimants' representation at the hearing, the contract at issue is a written contract between Peter Viviani and Sonoma Foods and is reflected in the minutes from the meeting on December 31, 2001. This agreement only expressly required the transfer of two trademarks, which were in fact transferred in 2002. Counter-claimants argued that this agreement also contained an implied agreement not to create or use any marks that would be confusingly similar to the two transferred marks. The Court hereby grants Counter-claimants leave to amend their claim for breach of contract, but cautions them to be mindful that their amended allegations must be consistent with their Counter-complaint. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 296-97 (1990) (leave to amend may only be given to plead "other facts consistent with the challenged pleading") (quoting Schreiber Dist. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)).
Based on Counter-claimants' representations regarding their significant proposed amendments and the Court's grant of leave to amend, the denies Sonoma Foods' motion as to the breach of contract claim as moot. This ruling is without prejudice to Sonoma Foods' moving to dismiss their counter-claim after it is amended.
2. Negligence.
Sonoma Foods argues that Counter-claimants fail to allege any duty, a required element of any negligence claim. In response, Counter-claimants argue that *1020 Sonoma Foods had a "contractual duty to transfer certain rights." (Opp. to Mot. to Dismiss at 7.) "To be actionable, a claim of negligence must be based on the existence of a legal duty to exercise due care." Keech v. Berkeley Unified School Dist., 162 Cal.App.3d 464, 468, 210 Cal.Rptr. 7 (1984). Whether the requisite "duty of care" exists is a matter of law for the Court. See Erlich v. Menezes, 21 Cal.4th 543, 558, 87 Cal.Rptr.2d 886, 981 P.2d 978 (1999). In Freeman & Mills, Inc. v. Belcher Oil Co., the California Supreme Court made clear that tort recovery is precluded for non-insurance contractual breaches "in the absence of violation of an independent duty arising from principles of tort law." Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 102, 44 Cal.Rptr.2d 420, 900 P.2d 669 (1995) (internal quotes omitted). Here, Counter-claimants have not plead any facts which would give rise to an independent duty arising from principles of tort law. Accordingly, the Court grants Sonoma Foods' motion as to this counter-claim.
3. Common Law Fraud.
To state a claim for fraud, Counter-claimants must allege: (1) Sonoma Foods made a false representation; (2) Sonoma Foods knew the representation was false; (3) Sonoma Foods intended to induce Counter-claimants' reliance on the misrepresentation; (4) Counter-claimants justifiably relied on the misrepresentation; and (5) Counter-claimants were damaged. See, e.g. Crocker-Citizens Nat'l Bank v. Control Metals Corp., 566 F.2d 631, 636-37 (9th Cir.1977); Engalla v. Permanente Medical Group, 15 Cal.4th 951, 974, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997). Moreover, Counter-claimants must state with particularity the circumstances constituting fraud. See Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir. 1999); Fed.R.Civ.P. 9(b). Upon review of the Counter-complaint, the Court finds that Counter-claimants fail to allege facts to establish the elements of their fraud claim with sufficient particularity. Accordingly, the Court grants the motion to dismiss as to this counter-claim.
4. Breach of Fiduciary Duty.
Sonoma Foods contends that Counter-claimants fail to allege any facts demonstrating a fiduciary relationship between any of the parties. The Court agrees. Counter-claimants have not plead any facts which would give rise to a fiduciary duty based upon a legal relationship between the parties. Nor have they plead any facts demonstrating that the alleged contract created a fiduciary relationship.
"[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law." Committee On Children's Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 221, 197 Cal. Rptr. 783, 673 P.2d 660 (1983). "Fiduciary relationships arise a matter of law in certain technical, legal relationships," including between "corporate officers and directors, on the one hand, and the corporation and its shareholders, on the other hand." Oakland Raiders v. Nat'l Football League, 131 Cal.App.4th 621, 632, 32 Cal. Rptr.3d 266 (2005). Although majority shareholders owe fiduciary duties to the corporation and its minority shareholders "to use their ability to control the corporation in a fair, just, and equitable manner," Counter-claimants have not provided any authority showing the opposite is true that the corporation or its minority shareholders owe a fiduciary relationship to the majority shareholder. See Oakland Raiders, 131 Cal.App.4th at 635, 32 Cal.Rptr.3d 266 (quoting Jones v. H.F. Ahmanson & Co., 1 Cal.3d 93, 108, 81 Cal.Rptr. 592, 460 *1021 P.2d 464 (1969)). Nor, even more importantly, have Counter-claimants provided any authority to support their theory that a corporation owes a fiduciary duty to a former majority shareholder and to a separate corporation.
In Oakland Raiders, the court found that Jones, which held that majority shareholders owe fiduciary duties, was inapplicable for the proposition that an organization owes a fiduciary duty to its members. Oakland Raiders, 131 Cal.App.4th at 635, 32 Cal.Rptr.3d 266. The court noted that the fiduciary relationship recognized by the California Supreme Court in Jones was predicated on the inherent unfairness of majority shareholders using their dominant position to further their own interests at the expense of the minority shareholders. Id. Similarly here, Counter-Claimants have not any plead any facts which would demonstrate that Sonoma Foods was in a dominant position over Peter Viviani, its former majority shareholder, or to Sonoma Cheese Factory, the newly formed corporation.
Although parties may create fiduciary relationships by contract, "[m]ere contractual relationships, without more, do not give rise to fiduciary relationships." Parrish v. Nat'l Football League Players Inc., 2007 WL 1624601, *4 (N.D.Cal. June 4, 2007) (citing Oakland Raiders, 131 Cal. App.4th at 633-34, 32 Cal.Rptr.3d 266.) "[C]ourts finding no fiduciary duty have done so where other legal duties clearly existed between the parties that covered the transaction in suit and were inconsistent with the existence of a fiduciary duty." Id. at 634, 32 Cal.Rptr.3d 266; see also Rita Medical Systems, Inc. v. Resect Medical, Inc., 2007 WL 161049, *6 (N.D.Cal. Jan. 17, 2007) (finding no fiduciary relationship where contract required defendant to keep plaintiff's trade secrets confidential, to assign patents, and not to compete with plaintiff because the contract covered all of the theories of breach of fiduciary duty asserted by plaintiff and did not give defendant any special status). "[A] fiduciary must give `priority to the best interests of the beneficiary.'" Oakland Raiders, 131 Cal.App.4th at 641, 32 Cal.Rptr.3d 266 (quoting Children's Television, 35 Cal.3d at 222, 197 Cal.Rptr. 783, 673 P.2d 660). Counter-claimants have not any plead any facts that demonstrate Sonoma Foods agreed in the alleged contract at issue to undertake a fiduciary relationship and give priority to the interests of Peter Viviani and/or to Sonoma Cheese Factory. Accordingly, the Court grants Sonoma Foods' motion to dismiss as to the counter-claim for breach of fiduciary duty.
5. Constructive Fraud.
To state a claim for constructive fraud under California law, Counter-claimants must "allege (1) a fiduciary or confidential relationship; (2) an act, omission or concealment involving a breach of that duty; (3) reliance; and (4) resulting damage." See Dealertrack, Inc. v. Huber, 460 F.Supp.2d 1177, 1183 (C.D.Cal.2006). As discussed above, Counter-claimants have not alleged facts that demonstrate the existence of a fiduciary relationships. Nor have they alleged facts showing that a "confidential relationship" existed between Sonoma Foods and Peter Viviani and/or Sonoma Cheese Factory. Moreover, facts supporting a claim for constructive fraud must be alleged with particularity under Rule 9(b). See Munday v. Real Estate Advisors, Inc., 1995 WL 549015, *2 (N.D.Cal. Sept. 12, 1995). Counter-claimants' complaint does not meet this heightened pleading standard. Therefore, the Court grants Sonoma Foods' motion as to the counter-claim for constructive fraud.
6. Rescission.
In light of the fact that the Court is giving Counter-claimants leave to amend *1022 their breach of contract counter-claim, the Court will similarly allow leave to amend their rescission counter-claim, which depends on the alleged breaches of the contract at issue. Likewise, the Court denies Sonoma Foods' motion as to the rescission claim as moot. This ruling is without prejudice to Sonoma Foods' moving to dismiss their counter-claim after it is amended.
7. 15 U.S.C. § 1125(a).
To state a claim under 15 U.S.C § 1125(a)(1), Counter-claimants must allege: (1) the existence of a valid, protectable mark used in connection with the sale of goods or services; and (2) Sonoma Foods' use of a mark that is confusingly similar. See Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1046 (9th Cir.1999). At the hearing on the motion to dismiss, Counter-claimants conceded that this claim as currently plead does not allege these required elements. Accordingly, the Court grants Sonoma Foods' motion as to the counter-claim under 15 U.S.C. § 1125(a).
8. False or Fraudulent Registration of Trademarks.
Under this claim, Counter-claimants allege that Sonoma Foods made false or fraudulent declarations or representations to the United States Patent and Trademark Office in order to register trademarks that were promised to Sonoma Cheese Factory. (Counter-compl., ¶ 40.) As discussed above, Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). Again, Counter-claimants fail to allege the circumstances of the alleged fraud with sufficient particularity. Moreover, based on Counter-claimants representations at the hearing, it appears as though they no longer contend that Sonoma Foods wrongfully registered trademarks. Accordingly, the Court grants Sonoma Foods' motion to dismiss this claim.
9. Unfair Competition under Business & Professions Code § 17200.
To state a claim for unfair competition pursuant to California Business and Professions Code § 17200 (Section 17200), a "plaintiff must establish that the practice is either unlawful (i.e., is forbidden by law), unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public)." Albillo v. Intermodal Container Services, Inc., 114 Cal.App.4th 190, 206, 8 Cal.Rptr.3d 350 (2003). Because the law is stated in the disjunctive, it contemplates three distinct categories of unfair competition and a plaintiff must plead the specific rubric under which the proscribed conduct falls. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (Cal.1999). Moreover, the plaintiff bringing a claim based on the unlawful prong must identify the particular section of the statute that was allegedly violated, and must describe with reasonable particularity the facts supporting the violation. See Brothers v. Hewlett-Packard Co., 2006 WL 3093685, *7 (N.D.Cal. Oct.31, 2006) (citing Khoury v. Maly's of California, Inc., 14 Cal.App.4th 612, 619, 17 Cal. Rptr.2d 708 (1993)).
In opposition to Sonoma Foods' motion to dismiss, Counter-claimants contend that Sonoma Foods' alleged acts were "unlawful," but do not specify any statute that they allege was violated. Therefore, the Court grants Sonoma Foods' motion to dismiss as to this counter-claim. The Court notes that if Counter-claimants elect to amend this claim, they should be mindful to allege facts that satisfy the standing requirement for claims under Section 17200. Proposition 64, which was approved *1023 by California voters on November 2, 2004, amended Section 17200 to limit the standing of private plaintiffs to bring such claims to those who "suffered injury in fact and [have] lost money as a result of such unfair competition." Laster v. T-Mobile USA, Inc., 407 F.Supp.2d 1181, 1193 (S.D.Cal.2005) (quoting Cal. Bus. & Prof. Code § 17204).
10. Financial Elder Abuse.
Finally, Sonoma Foods' argues that Counter-claimants have not sufficiently alleged their claim for financial elder abuse. Financial elder abuse, as defined by statute, occurs when a person or entity "[t]akes, secrets, appropriates, or retains real or personal property of an elder . . . to a wrongful use or intent to defraud, or both." Cal. Welf. & Inst.Code § 15610.30 (emphasis added). Counter-claimants allege that the Retail Trademarks became the property of Sonoma Cheese Factory pursuant to the alleged agreement and that Sonoma Foods failed to transfer such marks to Sonoma Cheese Factory. (Counter-compl., ¶¶ 10, 13.) Given that Counter-claimants allege Sonoma Foods failed to transfer these trademarks to a company, they have not alleged facts that state a claim for financial elder abuse, which requires that the property of an elder be wrongfully retained.[3] Accordingly, the grants Sonoma Foods' motion to dismiss as to this counter-claim.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Sonoma Foods' special motion to strike and GRANTS IN PART and GRANTS IN PART and DENIES IN PART Sonoma Foods' motion to dismiss as follows:
(1) GRANTS the special motion to strike as to Counter-claimants' claim for common law injury to business reputation and unjust enrichment;
(2) DENIES the special motion to strike as to the remaining counter-claims;
(3) GRANTS the motion to dismiss with leave to amend as to Counter-claimants' claims for negligence, common law fraud, breach of fiduciary duty, constructive fraud, 15 U.S.C. § 1125(a), false or fraudulent registration of trademarks, unfair competition under Section 17200, and financial elder abuse; and
(4) DENIES the motions as MOOT on Counter-Claimants' claims for breach of contract and rescission. This ruling is without prejudice to Sonoma Foods' moving to dismiss these counter-claims after they are amended.
Counter-claimants shall file any amended counter-complaint within twenty days of the date of this Order. If Counter-claimants do not file an amended counter-complaint within twenty days, their entire Counter-complaint shall be dismissed. If an amended counter-complaint is filed, Sonoma Foods shall either file an answer or move to dismiss within twenty days of service of the amended counter-complaint.
IT IS SO ORDERED.
NOTES
[1] The Court DENIES Counter claimant's administrative motion seeking to have the motion to dismiss addressed prior to the special motion to strike and DENIES Sonoma Foods' request for judicial notice because the Court did not need to consider such documents in ruling on the motion to dismiss.
[2] Sonoma Foods also argues that the seventh counter-claim for false or fraudulent registration of trademarks is premised on its petition to the PTO for trademark registrations. However, because the Section 425.16 does not apply to federal question claims brought in federal court, as discussed above, the Court will not address Sonoma Foods' motion as to this counter-claim.
[3] Moreover, as discussed above, Counter-claimants represented at the hearing that they no longer contend that Sonoma Foods failed to transfer trademarks to Sonoma Cheese Factory required by the December 2001 Agreement. Therefore, it is not clear whether Counter-claimants still intend to pursue a claim for financial elder abuse.
| {
"pile_set_name": "FreeLaw"
} |
636 F.3d 316 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
James GUYTON, Defendant-Appellant.
No. 09-3866.
United States Court of Appeals, Seventh Circuit.
Argued June 9, 2010.
Decided February 22, 2011.
Daniel L. Bella, Attorney, Joshua P. Kolar (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
*317 John E. Martin, Attorney, Viniyanka Prasad (argued), Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.
Before POSNER, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
Appellant James Guyton was sentenced for a crack cocaine offense before the Supreme Court held that the Sentencing Guidelines were advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Guyton's guideline range was based on the career offender guideline, U.S.S.G. § 4B1.1, but the district court granted a downward departure under section 5K1.1 based on his assistance to the government. The court departed downward to a sentence within the range for crack cocaine offenses that would have applied to Guyton absent the career offender designation.
In limited circumstances, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce a sentence of imprisonment imposed under a previous version of the United States Sentencing Guidelines so as to give retroactive effect to guideline amendments that the Sentencing Commission has chosen to make retroactive. A reduction is permitted only if "the guideline range applicable to that defendant" has been retroactively lowered. U.S.S.G. § 1B1.10(a). After the Sentencing Commission retroactively reduced the guideline ranges for crack cocaine offenses, Guyton moved for a sentence reduction under section 3582(c)(2). The district court denied his motion, and Guyton has appealed. We affirm.
We held in United States v. Forman, 553 F.3d 585, 589-90 (7th Cir.2009), that a crack cocaine offender sentenced under the career offender guideline was not eligible for a reduced sentence under section 3582(c)(2). The crack cocaine amendment simply did not lower the defendant's applicable guideline range. Here we face a variation on the Forman issue: whether a defendant sentenced under the career offender guideline, but with a downward departure for substantial assistance, is eligible for a reduction. We hold that, for purposes of section 3582(c)(2), the relevant sentencing range is the one calculated before the defendant received the benefit of a downward departure under Chapter 5 of the Guidelines. The Sentencing Commission has not retroactively reduced the career offender guideline that determined the guideline range applicable to defendant Guyton. The reasoning of Forman applies, therefore, and the district court was required to deny Guyton's motion.
I. The Facts and Procedural Background
Guyton was sentenced in 2001 for possessing crack cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Two prior felony convictions meant that he qualified as a career offender under U.S.S.G. § 4B1.1. At that time, the Guidelines were considered binding, and Guyton's career offender status produced a guideline imprisonment range of 188 to 235 months in prison. Based on his substantial assistance to the government in prosecuting another person, the government moved for a downward departure under U.S.S.G. § 5K1.1 and requested a lesser sentence of 130 months. The district court granted the motion and sentenced Guyton as recommended, remarking that the government was in the best position to determine the value of his assistance and the extent of the downward departure he had earned.
In 2007, the Sentencing Commission adopted Amendment 706, which reduced the base offense levels for crack cocaine *318 offenses. Then, with Amendment 713, the Commission made the change retroactive. See U.S.S.G. § 2D1.1(c); U.S.S.G. Supp. App. C, Amdts. 706 and 713 (2008). Invoking Amendment 706, Guyton moved to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court denied the motion, observing that the amendment could not benefit Guyton because his original sentence was based not on the crack guideline but on his career offender status and the substantial assistance departure. Amendment 706 left the career offender guideline unchanged.
II. Analysis
We held in United States v. Forman that a crack cocaine offender sentenced under the career offender guideline was not eligible for reduced sentence under section 3582(c)(2). 553 F.3d at 589-90. To avoid the holding of Forman, Guyton contends that his actual sentence was "based on" the crack cocaine guideline, § 2D1.1(c), instead of or in addition to the career offender guideline, § 4B1.1. He stresses that his ultimate prison term of 130 months fell within the range that would have applied absent his career offender status. He suggests that the crack guideline explains the extent of the departure he received and that his sentence was, at least in that colloquial sense of the statutory phrase, "based on" a sentencing range that was later lowered by the Sentencing Commission.
We affirm the district court's judgment. As a matter of law, a sentence reduction under section 3582(c)(2) is unavailable to Guyton because his relevant guideline range was established by the career offender guideline before he received the benefit of the departure. Because Guyton's applicable guideline range was not changed by the retroactive guideline Amendment 706, reducing his sentence would have been contrary to the policy of the Sentencing Commission, which is the relevant inquiry under the statute.
A. The Statutory Framework
As a general rule, with just a few exceptions, a district court may not modify a term of imprisonment once it has been imposed. 18 U.S.C. § 3582(c); Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010); United States v. Jackson, 573 F.3d 398, 399 (7th Cir.2009). In section 3582(c)(2), Congress created one narrow exception. A district court may modify a sentence if two conditions are met: first, the original sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission," and second, a reduction would be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); Dillon, 130 S.Ct. at 2687; United States v. Darton, 595 F.3d 1191, 1194 (10th Cir.2010); United States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir.2009); United States v. Forman, 553 F.3d at 588.
This statutory scheme delegates a great deal of power and discretion to the Sentencing Commission. The Commission, not a federal court, decides when an amendment is retroactive and issues policy statements that can make a sentencing reduction unavailable. The Supreme Court has confirmed that in section 3582(c)(2) proceedings, unlike original sentencing proceedings now governed by Booker, the Commission's policy statements still bind the federal courts. Dillon, 130 S.Ct. at 2687-88.
The Commission lists by number in U.S.S.G. § 1B1.10(c) the binding policy statements making amendments retroactive. Subsection (a)(2)(B) of the same section prohibits a sentence reduction if the amendment at issue "does not have the *319 effect of lowering the defendant's applicable guideline range." (Emphasis added.)
B. The "Applicable Guideline Range"
Under the Guidelines, a defendant has only one "applicable guideline range," and it is a range that the district court calculates before granting any departures under Chapter 5 of the Guidelines. (We do not address here whether the applicable guideline range is established before any departures for over-representation of a defendant's criminal history under section 4A1.3. That issue has sharply divided the circuits and is not before us in this case.) For Guyton, who received a substantial assistance departure under section 5K1.1, the applicable range was furnished by the career offender guideline.
Our analysis starts with the language of section 1B1.10(a)(2)(B). The reference there to "the defendant's applicable guideline range" is singular, implying that a defendant has only one applicable guideline range. That conclusion is consistent with the overall structure of the Guidelines, which require ultimately a determination of one guideline range that applies to the defendant. That observation, however, does not show just when the applicable guideline range is established. We turn to the context in which the phrase appears.
First, section 1B1.10 takes for granted that a defendant who received a "downward departure" in the pre-Booker era received a specific term of imprisonment below his applicable range. Specifically, section 1B1.10(b)(2)(B) states that if a district court considers a motion under section 3582(c)(2) pursuant to a retroactively-amended guideline range, the court may sentence below the amended range only if "the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing." (Emphasis added.) This provision assumes that "the applicable guideline range" is the range established before a district court decides to depart or vary downward. E.g., United States v. Pembrook, 609 F.3d 381, 384-85 (6th Cir. 2010). Contra, United States v. Flemming, 617 F.3d 252, 266 n. 20 (3d Cir. 2010); United States v. McGee, 553 F.3d 225, 228 (2d Cir.2009). The provision in subsection (b)(2)(B) makes little sense if the departure itself is treated as providing the applicable "range."
Second, and more important, the structure of the Guidelines makes clear that the applicable guideline range is the one calculated before any departure under section 5K1.1. The Guidelines permit a genuine departure under section 5K1.1 and other provisions found in Chapter 5 only after the court has already determined "the applicable guideline range."[1] Section 1B1.1 lays out the order in which courts apply the guideline provisions. In the first several steps, the district court calculates the defendant's total offense level and criminal history category and determines the corresponding guideline range. U.S.S.G. § 1B1.1(a)(1)-(a)(8).[2] After the court determines *320 the range, it "shall then consider Parts H and K of Chapter Five, Specific Offender Characteristics and Departures, and any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence." § 1B1.1(b). The court then moves beyond the Guidelines and considers other factors under 18 U.S.C. § 3553(a). See § 1B1.1(c).
Within this structure, a section 5K1.1 departure necessarily comes after the establishment of a specific guideline range applicable to the defendant. Flemming, 617 F.3d at 262-64; Pembrook, 609 F.3d at 385; Darton, 595 F.3d at 1197; see also Tolliver, 570 F.3d at 1065-66. Thus, a career offender whose imprisonment term falls below his career offender range only by virtue of a departure under Part 5H or Part 5K cannot receive a reduction under section 3582(c)(2) unless the Sentencing Commission retroactively amends the career offender guideline.
This conclusion is consistent with decisions of the Sixth, Eighth, and Tenth Circuits, which hold that the only applicable guideline range is the one established before any departures. See United States v. Hameed, 614 F.3d 259 (6th Cir.2010); Pembrook, 609 F.3d 381; Darton, 595 F.3d 1191; United States v. Blackmon, 584 F.3d 1115 (8th Cir.2009); United States v. Collier, 581 F.3d 755 (8th Cir.2009); Tolliver, 570 F.3d 1062. Our decision does not conflict with the Third Circuit's decision in Flemming, which held that the applicable guideline range is established before any departure under section 5K1.1 for substantial assistance, but after any departure under section 4A1.3 for over-representation of the defendant's criminal history. Flemming, 617 F.3d at 262-64. The Eleventh Circuit, too, has suggested in dicta that it might adopt different approaches for departures made under Chapters 4 and 5. See United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir.2008).
Our decision is in tension with those of the First, Second, and Fourth Circuits. See United States v. Cardosa, 606 F.3d 16 (1st Cir.2010); United States v. Munn, 595 F.3d 183 (4th Cir.2010); McGee, 553 F.3d 225 (2d Cir.2009). Although the defendant in each of these cases had received a departure under section 4A1.3 instead of or in addition to a departure under section 5K1.1, some of the language in these decisions might not be limited to departures under section 4A1.3. To the extent that Cardosa, Munn, and McGee may be read to permit a sentence reduction in circumstances like Guyton's, we respectfully disagree with them.
For now, though, we grapple no further with the decisions authorizing sentence reductions for defendants who received a departure under section 4A1.3 to a term within the crack-cocaine range that would have applied in the absence of career-offender status. First, neither Cardosa nor McGee analyzes the application instructions in section 1B1.1, so we would not consider them persuasive on this issue. See Cardosa, 606 F.3d 16; McGee, 553 F.3d 225. Second, the nub of Flemming and Munnthat a "departure" under section *321 4A1.3 is actually a step in calculating the defendant's criminal history category and thus precedes the establishment of the applicable guideline rangehas no bearing on our conclusion that the applicable guideline range is established before any departures under Chapter 5. See U.S.S.G. § 1B1.1 (a)(6) through (a)(8), (b), and (c); Flemming, 617 F.3d at 262-64 (explaining that departure under section 5K1.1 is made at old step (i) of the application instructions, which is now step (b), but departure under section 4A1.3 might be made at old step (f), which is now step (a)(6), before the guideline range is established at old step (h), which is now step (a)(8)); Munn, 595 F.3d at 192 ("Because of section 4A1.3's placement, however, the Commission most likely intended for the court to grant an Overrepresentation Departure before determining the applicable guideline range, as part of its calculation of the criminal history category.").
Finally, we decline to rely on a definition added to the Guidelines in 2003 in Amendment 651 that some readers might have thought would resolve this case. Since 2003, Application Note 1(E) to section 1B1.1 has defined a "departure" as the "imposition of a sentence outside the applicable guideline range." Where this definition holds, the applicable guideline range is always established before any departures can be made. The circuits are divided on the applicability of Amendment 651 to section 3582(c)(2) proceedings for defendants like Guyton who were sentenced before it was adopted. Compare Pembrook, 609 F.3d at 385-86, with Flemming, 617 F.3d at 266-68, and Munn, 595 F.3d at 193-94. Our structural analysis suffices to support our holding, and the parties have not addressed Amendment 651. We leave that issue for a case in which it would make a difference.
Guyton's applicable guideline range was established on the basis of his career-offender status before he received a substantial assistance departure. Thus, Amendment 706, which left the career offender guideline unchanged, did not affect his applicable guideline range, and he did not qualify for a sentence reduction under section 3582(c)(2). The judgment of the district court is AFFIRMED.
NOTES
[1] We refer to a "genuine" departure because, after Booker, a sentencing court can impose a sentence outside the applicable guideline range for reasons independent of the Guidelines themselves.
[2] Effective November 1, 2010, the Sentencing Commission amended and reorganized section 1B1.1 to emphasize the three basic steps in sentencing after Booker: first, under subsection (a), calculate the applicable guideline range; second, under subsection (b), consider departures under the Guidelines themselves; third, under subsection (c), consider the other applicable factors under 18 U.S.C. § 3553(a). We cite in this opinion the new amended organization of section 1B1.1. The amended version of section 1B1.1 was in large part a response to a line of our cases, beginning with United States v. Johnson, 427 F.3d 423, 426 (7th Cir.2005), saying that Booker rendered the Guidelines' concept of departure "obsolete." See Amendment 741 to the Sentencing Guidelines (resolving circuit split regarding application methodology for district courts). In a strictly legal sense, the "obsolete" description was accurate as applied to appellate review of a sentence, but the "obsolete" line of cases should not discourage district courts from taking genuine guidance from all the Guidelines, including their departure provisions, as required under the amended section 1B1.1.
| {
"pile_set_name": "FreeLaw"
} |
Case: 13-10866 Document: 00512750699 Page: 1 Date Filed: 08/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10866
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 29, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MIGUEL SALGADO-GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-293-1
Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Miguel Salgado-
Gutierrez (Salgado) has moved for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States
v. Flores, 632 F.3d 229 (5th Cir. 2011). Salgado has not filed a response. We
have reviewed counsel’s brief and the relevant portions of the record reflected
therein. We concur with counsel’s assessment that the appeal presents no
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10866 Document: 00512750699 Page: 2 Date Filed: 08/29/2014
No. 13-10866
nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave
to withdraw is GRANTED, counsel is excused from further responsibilities
herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
| {
"pile_set_name": "FreeLaw"
} |
94 Okla. Cr. 267 (1951)
234 P.2d 947
Ex parte HINLEY.
No. A-11606.
Criminal Court of Appeals of Oklahoma.
July 25, 1951.
Writ of Certiorari Denied October 15, 1951.
*268 Jake Hinley, pro se.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
Writ of Certiorari Denied October 15, 1951. See 72 S.Ct. 83.
BRETT, P.J.
This is an original action for writ of error coram nobis brought by Jake Hinley, as petitioner, an inmate of the State Penitentiary. In said petition it appears he was convicted in Jefferson county, Oklahoma, with the crime of first degree rape of one Nellie B. Hinley, who he alleges was past 16 years of age at the time of the alleged crime. He alleges she was born September 4, 1922. Nellie B. Hinley, the victim of the alleged rape, was the daughter of the petitioner, Ex parte Hinley, 79 Okla. Cr. 382, 155 P.2d 265. The foregoing case recites there was a conflict in the evidence between Hinley's testimony and that of his daughter, at the trial, resulting in his conviction and the sentence as imposed on November 27, 1938, Ex parte Hinley, 84 Okla. Cr. 437, 183 P.2d 602. It is well to observe that this matter has been here on habeas corpus twice in addition to the foregoing cited cases, Ex parte Hinley, 88 Okla. Cr. 81, 199 P.2d 613; Ex parte Hinley, 92 Okla. Cr. 85, 220 P.2d 844. But these actions would not constitute a bar to this proceeding if such proceedings presented a proper case. But, as was said in State ex rel. Burford v. Sullivan, 86 Okla. Cr. 364, 193 P.2d 594, 596:
"A writ of error coram nobis does not lie to correct any error in the judgment of the court, nor to contradict or to put in issue any fact directly passed upon and confirmed by the judgment itself, nor to review and revise the court's opinions but only enables the court to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court."
Under the provisions of Title 22, §§ 951, 952, O.S.A. 1941, providing for procedure for obtaining a new trial, we can hardly conceive of a situation not covered by these provisions. The provisions of § 952, subsection 7, in relation to granting a new trial on the ground of newly discovered evidence provides the basis for relief herein sought by writ of error coram nobis. It reads as follows, to wit:
"When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial, or when it can be shown that the grand jury was not drawn summoned or impaneled as provided by law, and that the facts in relation thereto were unknown to the defendant or his attorney until after the trial jury in the case was sworn and were not of record. When a motion for a new trial is made on the ground of newly discovered evidence, the defendant must produce at the hearing in support thereof affidavits of witnesses, or he may take testimony in support thereof as provided in Section 5781, and if time is required by the defendant to procure such affidavits or testimony, the court may postpone the hearing of the *269 motion for such length of time as under all the circumstances of the case may seem reasonable."
Herein the petitioner seeks to do the very thing we said in State ex rel. Burford v. Sullivan, supra, could not be done. Herein through the affidavit of Nellie Bee Hinley now Nellie B. Finnell, to the effect he did not commit the offense of which he was convicted, and in which case she was the prosecuting witness, he seeks to contradict an issue of fact directly passed on and confirmed by the conviction and the judgment and sentence had in the trial court. In the Sullivan case, we said such could not be done. Furthermore, in Gibson v. State, 87 Okla. Cr. 260, 197 P.2d 310, 313, wherein we said:
"The writ of coram nobis, or writ of error coram nobis as it is sometimes termed, was a common-law writ which developed in the early stages of common law procedure because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment. State ex rel. [Burford] v. Sullivan, 86 Okla. Cr. 364, 193 P.2d 594.
"The right of the defendant to file a motion in arrest of judgment, motion for new trial because of newly discovered evidence, and other statutory remedies have largely if not entirely superseded the office and functions of the old common law writ. The writ of coram nobis has never been issued by the Criminal Court of Appeals of Oklahoma; although, by dicta it has been said in some cases that in appropriate circumstances such a writ may properly issue in this State. State ex rel. Attorney General v. Hurst, 59 Okla. Cr. 220, 57 P.2d 666; State ex rel. [Mitchell] v. Swindall, 33 Okla. Cr. 210, 241 P. 456; State ex rel. [Burford] v. Sullivan, supra; Ex parte Goff, 87 Okla. Cr. 33, 194 P.2d 206."
We repeat, in substance, what we said earlier in this opinion. We cannot conceive of a situation not covered by the statutory provision on the question of new trial. Of course, these rights are no longer the subject of common law but must be exercised in the manner provided by statute. Hence we feel safe in concluding that the writ of error is no longer available in Oklahoma, since that writ has been superseded by the statutory provisions for motion in arrest of judgment and for new trial on the ground of newly discovered evidence.
Moreover, the petitioner asserts that relief herein should be granted upon the proposition that one George Peeks confessed he was the father of the child born to Nellie B. Hinley. This confession was allegedly made on May 24, 1948. It has been held that such a confession of guilt by another man than the applicant for writ of error coram nobis will not furnish sufficient reason for issuance of this writ, and the allegation of newly discovered evidence is likewise unavailable for said purpose. People v. Vernon, 9 Cal. App.2d 138, 49 P.2d 326, and cases therein cited. Certainly such a confession as to paternity of the victim's child would only be a circumstance that might be considered by the jury in the trial on the merits in determining the defendant's guilt of the charge. It would not form the basis for relief from a conviction for first degree rape by writ of error coram nobis. It is apparent that all the things for which the petitioner was convicted could have happened as alleged and proved and still Peeks could have been the father of Nellie B. Hinley's child. Both the fact of paternity by another person as well as the fact of first degree rape by the victim's father may be true. In any event the issue of fact sought to be established herein was adjudicated in the proceeding resulting in the petitioner's conviction, which fact, in similar cases, it has been universally held cannot be disturbed by writ of error coram nobis.
Such is the situation presented by the petitioner herein. For the reasons hereinbefore set forth the petition for writ of error coram nobis fails to state sufficient grounds to confer jurisdiction upon the court, and the said petition is accordingly dismissed.
JONES and POWELL, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman JEREMY J. GRAWEY
United States Air Force
ACM S32029 (remand)
08 July 2015
Sentence adjudged 2 December 2011 by SPCM convened at Kirtland
Air Force Base, New Mexico. Military Judge: Scott E. Harding.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
forfeiture of $978.00 pay per month for 6 months, and reduction to E-1.
Appellate Counsel for the Appellant: Major Anthony D. Ortiz and
Major Christopher D. James.
Appellate Counsel for the United States: Colonel Don M. Christensen;
Lieutenant Colonel Jennifer A. Porter; Major Roberto Ramírez; and Gerald
R. Bruce, Esquire.
Before
ALLRED, MITCHELL, TELLER
Appellate Military Judges
UPON REMAND
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
PER CURIAM:
Before a special court-martial, the appellant entered pleas of guilty to one
specification of cocaine use and not guilty to one specification of D-Amphetamine use,
both in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The military judge found
him guilty in accordance with his guilty plea, and a panel of officer and enlisted members
convicted him of the litigated specification. The court sentenced him to a
bad-conduct discharge, confinement for 6 months, forfeiture of $978.00 per month for
6 months, and reduction to E-1. The convening authority reduced the confinement to
5 months, but otherwise approved the sentence as adjudged.
Procedural History
On 25 January 2013, The Judge Advocate General of the Air Force appointed a
retired Air Force officer and former appellate military judge, who was serving as a
civilian litigation attorney in the Department of the Air Force to the position of appellate
military judge on the Air Force Court of Criminal Appeals pursuant to Article 66(a),
UCMJ, 10 U.S.C. § 866(a). On 25 June 2013, the then-Secretary of Defense, “[p]ursuant
to [his] authority under title 5, United States Code, section 3101 et seq.,” issued a
memorandum that appointed the same civilian employee of the Department of the
Air Force to serve as appellate military judge on the Air Force Court of Criminal
Appeals. Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force
Eric Fanning (25 June 2013).
When the appellant’s case was initially before us, the appellant argued that the
military judge erred by denying a challenge for cause against an enlisted security forces
member.
On 28 March 2013, this court disagreed and issued a decision in which we
affirmed the findings and sentence. United States v. Grawey, ACM S32029
(A.F. Ct. Crim. App. 28 March 2013) (unpub. op.). The appointed civilian employee was
a member of the panel that decided the case. Following the appointment by the Secretary
of Defense, this court reconsidered its decision sua sponte. On 22 July 2013, we issued a
new opinion and again affirmed the findings and sentence. United States v. Grawey,
ACM S32029 (recon) (A.F. Ct. Crim. App. 22 July 2013) (unpub. op.).
On 15 April 2014, our superior court issued its decision in United States v.
Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not
have the legislative authority to appoint civilian employees as appellate military judges
and that the earlier appointment was “invalid and of no effect.” On 11 March 2015, our
superior court concluded the improper appointment of the civilian employee by the
Secretary of Defense was not waived by an earlier failure to object. United States v.
Jones, 74 M.J. 95 (C.A.A.F. 2015). Pursuant to Janssen and Jones, our superior court
reversed our decision in this case and remanded it to us for a new review under Article
66, UCMJ, before a properly constituted panel. United States v. Grawey,
___ M.J. ___ No. 14-0060/AF (C.A.A.F. 2015) (Daily Journal 30 March 2015). In
addition to reviewing the prior pleadings, we issued an order authorizing the appellant to
file supplemental briefing.
In light of this ruling by our superior court, we have reviewed the appellant’s case.
Our review includes the appellant’s previous filings and the previous opinions issued by
2 ACM S32029 (rem)
this court, as well as a supplemental assignment of error in which the appellant asserts he
is entitled to relief due to excessive post-trial processing delays. Finding no error, we
affirm the findings and the sentence.
Challenge for Cause
At trial, the appellant challenged an enlisted panel member who was assigned to
security forces on the basis that he would give more weight to Investigator MG, a
security forces member who was expected to testify. The court member stated that he did
not know the prospective witness, but he had heard of him. The member also stated that
he recognized the special expertise of police officers acquired through training and
experience, but he would treat a police officer just like any other witness:
[Military Judge]. Okay. You will apply the same standards
then to—when Investigator [MG] testifies you will apply the
same standards in evaluating his credibility as any other
witness?
A. Absolutely, sir.
The military judge entered extensive findings, considered the liberal grant
mandate, and denied the challenge. Investigator MG testified briefly in sentencing, and
neither the defense nor the court members had any questions for him.
A member shall be excused for cause whenever it appears that the member
“[s]hould not sit as a member in the interest of having the court-martial free from
substantial doubt as to legality, fairness, and impartiality.” Rule for Courts-Martial
912(f)(1)(N). This rule applies to both actual and implied bias. United States v. Daulton,
45 M.J. 212, 217 (C.A.A.F. 1996). The test for actual bias is whether the member “will
not yield to the evidence presented and the judge’s instructions.” United States v.
Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997), as quoted in United States v. Schlamer,
52 M.J. 80, 92 (C.A.A.F. 1999) (internal quotation marks omitted). With implied bias,
we focus on the perception or appearance of fairness of the military justice system as
viewed through the eyes of the public. United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998); United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). Simply
stated, “[i]mplied bias exists ‘when most people in the same position would be
prejudiced.’” Daulton, 45 M.J. at 217 (quoting United States v. Smart, 21 M.J. 15, 20
(C.M.A. 1985)). For both types of challenges, military judges must apply the liberal
grant mandate which recognizes the unique nature of the court member selection process.
United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002). We review a military
judge’s ruling on a challenge based on actual bias for abuse of discretion; we review
challenges based on implied bias with less deference than abuse of discretion, by using an
objective standard of public perception. Id.
3 ACM S32029 (rem)
Applying the standards described above, we find the military judge did not err in
denying the challenge for cause. The responses of the challenged member clearly show
that he had no bias that would influence his evaluation of Investigator’s MG’s brief
testimony, and any reasonable member of the public would not perceive unfairness in his
remaining on the panel.
Appellate Review Time Standards
The appellant argues, citing United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006), that the unreasonable post-trial delay from the date the case was first
docketed with this court in March 2012 until this opinion warrants relief. The appellant
further cites to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this court’s
broad power and responsibility to affirm only those findings and sentence that should be
approved.
We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case remains in the appellate process. United States v. Mackie,
72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated when each
period of time used for the resolution of legal issues between this court and our superior
court is within the 18-month standard. Id. at 136; see also United States v. Roach,
69 M.J. 17, 22 (C.A.A.F. 2010). However, when a case is not completed within
18 months, such a delay is presumptively unreasonable and triggers an analysis of the
four factors elucidated in Barker v. Wingo, 407 U.S. 514 (1972), and Moreno.
See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the
length of the delay; (2) the reasons for the delay; (3) whether the appellant made a
demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala,
61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.
This case was originally docketed with this court on 16 March 2012. The time
from that initial docketing until our initial decision in March 2013 and even our decision
in reconsideration in July 2013 did not exceed 18 months, and is therefore not facially
unreasonable. The Moreno standards continue to apply as a case continues through the
appellate process. Mackie, 72 M.J. at 135–36. The time between our superior court’s
action to return the record of trial to our court for our action and this decision has not
exceeded 18 months; therefore, the Moreno presumption of unreasonable delay is not
triggered. See id. at 136. The appellant argues that because neither of the previous
decisions were issued by a properly constituted panel that the we should consider the time
from initial docketing on 16 March 2012 until this opinion as uninterrupted for Moreno
4 ACM S32029 (rem)
analysis. We reject the appellant’s argument that because the Secretary of Defense’s
appointment of the civilian employee was invalid and of no effect, that therefore the
Moreno clock was not tolled by our earlier decisions.1
Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to grant
sentence relief for excessive post-trial delay without the showing of actual prejudice
required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224;
see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v.
Gay, __ M.J. __, ACM 38525 (A.F. Ct. Crim. App. 12 June 2015), we identified a list of
factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted
for post-trial delay. Those factors include how long the delay exceeded appellate review
standards, the reasons for the delay, whether the government acted with bad faith or gross
indifference, evidence of institutional neglect, harm to the appellant or to the institution,
whether relief is consistent with the goals of both justice and good order and discipline,
and whether this court can provide any meaningful relief. Id., slip op. at 11. No single
factor is dispositive and we may consider other factors as appropriate. Id., slip op. at 12.
After considering the relevant factors in this case, we determine that no relief is
warranted. Even analyzing the entire period from the time the case was first docketed
until today, we find there was no bad faith or gross negligence in the post-trial
processing. The reason for the delay after our initial decision was to allow this court and
our superior court to fully consider a constitutional issue of first impression about
whether the Secretary of Defense has the authority under the Appointments Clause 2 to
appoint civilian employees to the service courts of criminal appeals. See Janssen,
73 M.J. at 221. While the answer may seem clear now with the advantage of subsequent
decisions, we note that the appellant’s initial petition to our superior court did not specify
the appointment as an error. We find no evidence of harm to the integrity of the military
justice system by allowing the full appellate review of this novel issue. The appellant has
not articulated any harm. At most the appellant asks us to infer increased anxiety; we
decline to do so. Furthermore, the impact of any delay was mitigated when we
specifically allowed the appellant to file a supplemental assignment of error. We have
1
Alternatively, if the standards set forth in United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), are violated,
the delay is presumptively unreasonable and triggers an analysis of the four factors elucidated in Barker v. Wingo,
407 U.S. 514 (1972), and Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are
“(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy
trial; and (4) prejudice to the appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also
Barker, 507 U.S. at 530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2013). Here, the appellant
concedes he did not make a demand for speedy appellate processing. Further, the appellant has also not made any
showing of prejudice, beyond referencing the general “anxiety and concern” of appellants awaiting resolution of
their appeal. When there is no showing of prejudice under the fourth factor, “we will find a due process violation
only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J.
353, 362 (C.A.A.F. 2006). Having considered the totality of the circumstances and the entire record, when we
balance the other three factors, we find the post-trial delay in this case to not be so egregious as to adversely affect
the public’s perception of the fairness and integrity of the military justice system. We are convinced that even if
there is error, it is harmless beyond a reasonable doubt.
2
U.S. CONST. art. II, § 2, cl. 2.
5 ACM S32029 (rem)
the authority to tailor an appropriate remedy without giving the appellant a windfall. See
Tardif, 57 M.J. at 225. We have expressly considered whether we should reduce some or
all of the appellant’s sentence. Based on our review of the entire record, we conclude
that sentence relief under Article 66, UCMJ, is not warranted.
Conclusion
The approved findings and the sentence are correct in law and fact and no error
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ. Accordingly, the approved findings and the sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
6 ACM S32029 (rem)
| {
"pile_set_name": "FreeLaw"
} |
Case: 09-40135 Document: 00511255700 Page: 1 Date Filed: 10/06/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2010
No. 09-40135 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GARY DON FRANKS
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-499
USDC No. 4:03-CR-84
Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Proceeding in forma pauperis and pro se, and pursuant to three issues
certified for appeal by our court, Gary Don Franks appeals the denial of his 28
U.S.C. § 2255 motion, challenging his 2004 guilty-plea conviction. (Franks’
motion not to publish this opinion is DENIED as moot; his motion to strike the
Government’s response to Franks’ not-publish motion is DENIED.)
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-40135 Document: 00511255700 Page: 2 Date Filed: 10/06/2010
No. 09-40135
For the three certified issues, we hold: although the district court erred
in ruling that the § 2255 motion is both time-barred and barred by the appellate-
waiver provision in Franks’ plea agreement, it did not abuse its discretion by not
conducting an evidentiary hearing for Franks’ due-process claim. AFFIRMED.
I.
Pursuant to a plea agreement, Franks pleaded guilty to possession with
intent to distribute and dispense methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g). Franks was sentenced, inter alia, to 101 months’ imprisonment.
Judgment was entered on 27 July 2004.
The next day, Franks filed a timely pro se notice of appeal. His appeal was
dismissed for want of prosecution on 22 September 2004.
On 21 December 2005, Franks filed the § 2255 motion at issue, claiming
his Sixth Amendment right to effective assistance of counsel was violated when:
(1) the district court cut off funding for his privately-retained attorney; (2) his
counsel failed to investigate the strength of the Government’s case, thereby
precluding him from deciding intelligently whether to plead guilty or proceed to
trial; and (3) his counsel failed to move to suppress evidence obtained in
violation of his Fourth Amendment rights. In addition, Franks claimed his Fifth
Amendment right to due-process was violated when the district court denied him
appointment of counsel on direct appeal.
The district court referred the matter to a magistrate judge for a report
and recommendation. The magistrate judge recommended: Franks’ § 2255
motion should be denied as time-barred; he should be denied equitable tolling
because he failed to establish that an unconstitutional government action
prevented him from filing a timely motion; he had waived his right to appeal;
and, in the alternative, his claims were without merit. Additionally, the
magistrate judge recommended denial of a certificate of appealability (COA),
2
Case: 09-40135 Document: 00511255700 Page: 3 Date Filed: 10/06/2010
No. 09-40135
even though Franks had not filed a request for a COA. Franks filed objections
to the report and recommendation.
The district court adopted the magistrate judge’s report and
recommendation and denied Franks’ § 2255 motion. The district court ruled:
Franks’ actual-innocence claim was without merit and could not excuse the
statute of limitations; Franks’ § 2255 motion was barred by the appellate-waiver
provision in his plea agreement; Franks’ guilty plea waived all non-jurisdictional
defects except those set forth in Federal Rule of Criminal Procedure 11(a)(2);
and, Franks failed to show that he either requested the appointment of appellate
counsel or filed a § 2255 motion on 29 July 2005 (Franks asserted that a request
to proceed in forma pauperis on that date invoked jurisdiction pursuant to
§ 2255). The district court ruled, in the alternative, that the issues raised in
Franks’ § 2555 motion lacked merit.
II.
On 12 November 2009, our court denied the majority of Franks’ COA
requests (concerning the striking of his oversized objections to the magistrate
judge’s report and recommendation, the denial of his motion for partial summary
judgment, and his claims of ineffective assistance of counsel) but granted a COA
for: whether his § 2255 motion was either time-barred or barred by the
appellate-waiver provision in his plea agreement; and whether the district court
erred in dismissing his due-process claim without conducting an evidentiary
hearing. See 28 U.S.C. § 2253.
A.
A district court’s factual findings are reviewed for clear error; it’s legal
conclusions, de novo. E.g., United States v. Edwards, 442 F.3d 258, 264 (5th Cir.
2006). The district court erred in ruling on alternative bases that the § 2255
motion was barred.
3
Case: 09-40135 Document: 00511255700 Page: 4 Date Filed: 10/06/2010
No. 09-40135
1.
Regarding the time bar, § 2255 establishes the period for filing such
motions. 28 U.S.C. § 2255(f). The motion may be filed within one year from,
inter alia, the date the judgment of conviction became final. 28 U.S.C.
§ 2255(f)(1).
Judgment for Franks’ criminal case was entered on 27 July 2004; he filed
a timely notice of appeal the next day. On 22 September 2004, his appeal was
dismissed for want of prosecution.
Franks insists his conviction became final no earlier than 21 December
2004, 90 days after dismissal of his direct appeal. Because his § 2255 motion
was delivered to prison officials on 21 December 2005, Franks contends it was
timely pursuant to § 2255(f)(1). (Franks’ § 2255 motion was filed on 27
December 2005; however, under the prison-mailbox rule, the motion was filed
on 21 December 2005, the day his motion was deposited into a legal mailbox
where he was incarcerated. E.g., Spotville v. Cain, 149 F.3d 374, 376-78 (5th
Cir. 1998).)
The Government counters: because Franks did not raise on appeal any
substantive issues regarding either his conviction or sentence, his petition for
a writ of certiorari would have been limited to whether our court correctly
dismissed Franks’ appeal for want of prosecution. Therefore, the Government
urges, the direct appeal for Franks’ criminal conviction ended on 10 August
2004, ten days after the district court entered judgment, resulting in the
limitations period for filing the § 2255 motion expiring on 10 August 2005.
In concluding that Franks’ § 2255 motion was time-barred, the district
court relied upon United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).
The district court reasoned that Franks’ direct appeal became final on 10 August
2004 because his appeal was dismissed for want of prosecution, and because any
petition for certiorari would not have contested direct review of his conviction.
4
Case: 09-40135 Document: 00511255700 Page: 5 Date Filed: 10/06/2010
No. 09-40135
In Plascencia, defendant filed a late pro se notice of appeal, which our
court construed as a motion for an extension of time. Plascencia, 537 F.3d at
387; see F ED. R. A PP. P. 4(b)(4). Our court held: because defendant never filed
an effective notice of appeal, his judgment became final ten days after it was
entered; and any petition for writ of certiorari defendant could have filed after
dismissal of his direct appeal would not have encompassed direct review of his
conviction. Plascencia, 537 F.3d at 389. “Instead, it would have concerned only
[this court’s] ruling that the district court did not abuse its discretion by
declining to grant [the defendant] an appeal.” Id.
On the other hand, when a federal defendant files a timely notice of
appeal, a judgment of conviction becomes final for purposes of § 2255(f)(1) on the
date of the Supreme Court’s denial of a petition for writ of certiorari. United
States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000). When such a petition has
not been filed, the judgment becomes final upon the expiration of the 90-day
period for filing such a petition. Clay v. United States, 537 U.S. 522, 532 (2003);
United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000). And, when a
federal defendant files a timely notice of appeal, and that appeal is dismissed for
want of prosecution, a conviction becomes final upon the expiration of the time
for seeking certiorari, even when the prisoner has not filed such a petition.
Gamble, 208 F.3d at 537. A § 2255 motion is thereby deemed timely, so long as
“[i]t was filed within a year after the ninety-day period for seeking certiorari
review of his conviction as finalized in this court”. Id.
Here, unlike defendant in Plascencia, Franks filed a timely notice of
appeal. See United States v. McWilliams, 308 F. App’x 806, 808 (5th Cir. 2009)
(noting Plascencia was not implicated because a timely notice of appeal).
Because defendants are entitled to the benefit of the additional 90-day period
even when their direct appeal is dismissed for want of prosecution, Gamble, 208
5
Case: 09-40135 Document: 00511255700 Page: 6 Date Filed: 10/06/2010
No. 09-40135
F.3d at 536-37, Franks’ conviction became final on 21 December 2004, when the
90-day period for filing a certiorari petition expired. See Clay, 537 U.S. at 532.
2.
Concerning the bar by the appellate-waiver provision in Franks’ plea
agreement, that agreement was silent on his right to collaterally challenge his
conviction under § 2255. See United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005) (waiver of defendant’s right to statutory appeal must be explicit and
unambiguous); United States v. White, 307 F.3d 336, 338 (5th Cir. 2005) (plea
agreement expressly included waiver of right to challenge sentence under 28
U.S.C. § 2255). Along that line, the Government concedes that the district
court’s reading of Franks’ waiver is too broad. We need not address this issue
further. See United States v. Sadler, 2010 WL 3007909, at *1 (5th Cir. 30 July
2010); see also United States v. Merrifield, 339 F. App’x 374, 375 (5th Cir. 2009)
(holding guilty plea of Franks’ co-defendant did not bar right to collaterally
challenge conviction and sentence under § 2255).
B.
For the final issue certified, Franks maintains the district court erred by
denying his due-process claim without conducting an evidentiary hearing. He
contends: he made a sufficient showing to warrant an evidentiary hearing on his
claim that his Fifth Amendment right to due-process was violated by the district
court’s failure to grant him in forma pauperis status and appoint him counsel on
direct appeal.
The denial of a § 2255 motion without an evidentiary hearing is reviewed
for abuse of discretion. E.g., United States v. Cervantes, 132 F.3d 1106, 1110
(5th Cir. 1998) (citing United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992)). “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
6
Case: 09-40135 Document: 00511255700 Page: 7 Date Filed: 10/06/2010
No. 09-40135
United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting Bocanegra
v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
Rule 8 of the Rules Governing § 2255 Proceedings states: “If the [§ 2255]
motion is not dismissed, the judge must review the answer, any transcript and
records of prior proceedings, and any materials submitted . . . to determine
whether an evidentiary hearing is warranted”. See United States v. Cavitt, 550
F.3d 430, 441-42 (5th Cir. 2008) (quoting Edwards, 442 F.3d at 264). Movant is
entitled to an evidentiary hearing on an issue presented in his § 2255 motion if
he can provide “independent indicia of the likely merit of [his] allegations,
typically in the form of one or more affidavits from reliable third parties . . .”.
Cervantes, 132 F.3d at 1110 (emphasis added). “If, however, the [movant]’s
showing is inconsistent with the bulk of [his] conduct or otherwise fails to meet
[his] burden of proof in the light of other evidence in the record, an evidentiary
hearing is unnecessary.” Id. (citing United States v. Smith, 844 F.2d 203, 208
(5th Cir. 1988)).
Franks contends he is entitled to an evidentiary hearing because: his
notice of appeal, docketed on 28 July 2004, indicated sufficiently his request for
appointed counsel during his appeal; and he submitted to the district court an
amended notice of appeal, which was mailed on 29 July 2004. In support,
Franks presents what appear to be three independent indicia supporting the
merits of his allegations: the self-serving statements contained in his § 2255
motion, which includes a copy of the alleged undocketed 29 July notice; and, the
affidavits of prisoners (Franks’ co-defendants) Ricky Joe James and Paul L.
Schlieve.
1.
Franks contends his pro se notice of appeal, docketed 28 July 2004,
presented his appointed-counsel request:
7
Case: 09-40135 Document: 00511255700 Page: 8 Date Filed: 10/06/2010
No. 09-40135
COMES NOW, Gary Don Franks, without any attorney of
record and would file this Notice of Appeal, in the above
styled and numbered cause, by means of “pro-se” until such
time as I can be appointed counsel or can afford to hire
counsel.
WHEREFORE, Premises considered, the defendant
respectfully requests this Honorable court accept this, his
Notice of Appeal.
(Emphasis added.)
The district court found this notice of appeal lacked a request for
appointed counsel. The notice was interpreted to include, at best, a suggestion
that Franks might request appointment if he could not afford to retain counsel.
The district court did not abuse its discretion in ruling the notice did not
request appointment of counsel. Besides the language contained in that notice,
the district court’s determination was supported in part by: Franks’ failure to
inquire into the status of his claimed request for appointed counsel, either before
or after his direct appeal was dismissed for want of prosecution; Franks’ having
been represented by retained counsel during the earlier district court
proceedings; and, Franks’ letter to the district court on 8 July 2004, stating that
he was going to retain another attorney.
Franks further contends the district court should have inquired into his
financial circumstances at the time he filed his pro se notice of appeal, citing
Rodriguez v. United States, 395 U.S. 327 (1969). Rodriguez held, however, that,
when counsel fails to file a requested appeal, defendant is entitled to re-
sentencing and an appeal without having to show likelihood of success. Id. at
329-30. Rodriguez did not impose a general duty on district courts to inquire
into the pro se appellant’s finances.
2.
Regarding the claimed second notice of appeal on 28 July 2004, Franks
asserts it included a request for leave to proceed in forma pauperis and for the
8
Case: 09-40135 Document: 00511255700 Page: 9 Date Filed: 10/06/2010
No. 09-40135
appointment of counsel on his direct appeal. This notice was not docketed, and
it apparently first came to the district court’s attention as an attachment to
Franks’ § 2255 motion, filed on 27 December 2005.
To explain the discrepancy between the first and second notices of appeal,
Franks relies on the following assertions: the district court’s claimed history of
improper filings; the Assistant United States Attorney’s (AUSA) failure to deny
“having received the copy of the Notice of Appeal that was served on her in her
official capacity”; his mailing a copy of the notice of appeal to the district judge;
and the affidavits of Schlieve and James.
Franks’ assertion that the district court has a history of improperly
docketing his filings is unavailing. His first example, that an application to
proceed in forma pauperis was received by the district court on 29 July 2005, and
was not docketed until 27 December 2005, is unhelpful: Franks’ motion was not
filed because it was premature until he submitted his § 2255 motion. His
second example, that his “motion for Discovery of Documents Probative of the
Incarceration of Rodney Lewis Crowley” was received by the clerk on 28 August
2006 but not filed, is belied by its certificate of service dated 13 September 2006.
Additionally, his assertions that the court was aware of his second notice
of appeal because he mailed copies to the district judge and to the AUSA are
unsubstantiated. See Cervantes, 132 F.3d at 1110 (finding petitioner’s
conclusional allegations insufficient to merit request for evidentiary hearing).
The Schlieve and James affidavits are unhelpful because they come from
unreliable parties. See id. Schlieve’s affidavit is insufficient because it shows
he was not an eyewitness to the events in question, thereby fatal to its value as
independent indicia. See United States v. Merrill, 340 F. App’x 976, 978 (5th Cir.
2009) (citing Cervantes, 132 F.3d at 1110).
While James’ affidavit contains an eyewitness account, it lacks requisite
specificity. See Cervantes, 132 F.3d at 1110-11. It states that Franks filed a
9
Case: 09-40135 Document: 00511255700 Page: 10 Date Filed: 10/06/2010
No. 09-40135
notice of appeal requesting appointed counsel in July 2004; however, it does not
differentiate between Franks’ above-described first and second notices of appeal.
Franks’ assertions are inconsistent with the bulk of his conduct otherwise:
he failed to show he attempted to obtain the relevant prior mail logs or inquire
about the status of his request for appointed counsel either before or after his
appeal was dismissed; he was able to retain counsel prior to entry of judgment;
he informed the district court that he was seeking another attorney; the volume
of his pro se filings during the period leading up to sentencing demonstrated
Franks’ proclivity to seek immediate action from the district court if a matter
was pending; the record shows Franks was silent before the district court from
22 September 2004 (when his appeal was dismissed for want of prosecution) to
29 July 2005, when the district court apparently first received his application to
proceed in forma pauperis.
The district court’s assessment of the evidence was not clearly erroneous;
accordingly, it did not abuse its discretion in denying Franks an evidentiary
hearing on his due-process claim. Franks’ claims are inconsistent with the bulk
of his conduct, and he offers no supporting specific facts. See Davis v. Butler, 825
F.2d 892, 894 (5th Cir. 1987) (stating requirements for evidentiary hearing in
context of a § 2254 petition); United States v. Orozco-Ramirez, 211 F.3d 862, 864
n.4 (5th Cir. 2000) (noting that, because of their similarity, § 2254 proceedings
are viewed relevant to § 2255 analysis). While Franks insists an evidentiary
hearing would allow him to find facts to support his allegations (e.g., the
testimony of other affiants, the mail log from Grayson County Jail), an
evidentiary hearing is not a “fishing expedition” for him to find support to
validate his allegations. Edwards, 442 F.3d at 268 n.10 (5th Cir. 2006).
III.
Therefore, in the light of the district court’s alternative ruling on the
merits, the judgment is AFFIRMED.
10
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10895
Summary Calendar
RONALD DARNELL WORDLAW,
Plaintiff-Appellant,
versus
JIM BOWLES, Sheriff; BILL LITTLE, Deputy
Sheriff; GEORGE W. BUSH, Governor; BOYD
PATTERSON, Judge; NO FIRST INITIAL
McMILLIAN, Deputy Chief,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-1098-H
--------------------
December 20, 1999
Before KING, Chief Judge, and JOLLY, and PARKER, Circuit Judges.
PER CURIAM:*
Ronald Darnell Wordlaw, Arizona prisoner # 58949, appeals
the district court’s dismissal as frivolous of his civil rights
complaint against various officials in Texas and, by amendment,
various officials in Arizona. Wordlaw alleged that his
extradition from Texas to Arizona was improper, and he makes
similar arguments on appeal.
*
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. 99-10895
-2-
Wordlaw has not shown that the district court abused its
discretion in dismissing the complaint as frivolous. See Berry
v. Brady, ___ F.3d ___, 1999 WL 803637, *2 (5th Cir. Oct. 8,
1999).
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
796 A.2d 75 (2002)
368 Md. 480
MOTOR VEHICLE ADMINISTRATION,
v.
Knowlton R. ATTERBEARY.
No. 76, Sept. Term 2001.
Court of Appeals of Maryland.
April 9, 2002.
*77 Valerie Johnston Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Glen Burnie, for petitioner/cross-respondent.
Reginald W. Bours, III (Reginald W. Bours, III, P.C., on brief), Rockville, for respondent/cross-petitioner.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.
*76 BATTAGLIA, Judge.
Petitioner, Motor Vehicle Administration (hereinafter "MVA"), asks us to consider what constitutes a refusal to submit to a blood alcohol concentration test in light of the two hour time limitation for such tests imposed by Maryland Code (1974, 1998 Repl.Vol.), Section 10-303 of the Courts *78 and Judicial Proceedings Article, where the individual suspected of driving while intoxicated has expressed a desire to consult with an attorney prior to making a test decision. Respondent, Knowlton Atterbeary, filed a cross-petition requesting consideration of what conduct constitutes driving or attempting to drive for purposes of triggering the implied consent provisions of Maryland Code (1977, 1999 Repl. Vol.), Section 16-205.1(a)(2) of the Transportation Article.
I. Facts
In the early morning hours of April 22, 2000, the Montgomery County Police received a call from fire and rescue personnel requesting assistance with an individual, later determined to be the respondent, Atterbeary, who was slumped behind the wheel of his car at 3121 Automotive Boulevard in front of the Herb Gordon Oldsmobile dealership. Montgomery County Police Officers Mondini and Williams responded to the call. Upon arrival at the scene, Officer Mondini observed Atterbeary sitting in the driver's seat of his Mercedes with the keys in the ignition, the engine running, and the dome light illuminated. Officer Mondini was advised by the Fire/Rescue personnel that they had attempted to speak to Atterbeary, but that he refused to get out of his car and would only roll down the window about an inch. Officer Mondini iterated his need to speak with Atterbeary twice, after which Atterbeary rolled down the window far enough for the officer to reach inside and unlock the door. Officer Mondini noticed Atterbeary's slurred speech and bloodshot eyes as well as a strong odor of alcohol emanating from him.
Officer Mondini attempted to administer several field sobriety tests to Atterbeary, including the horizontal gaze nystagmus, walk and turn, and one-leg stand, to no avail. Each time the officer gave the instruction to perform the test, Atterbeary responded that he did not understand. When the officer repeated the instructions, Atterbeary said he could not hear the officer. After the third attempt at clarifying the instructions, Atterbeary performed each test and failed them. Thereafter, Officer Mondini took Atterbeary to the police station in Silver Spring.
At the police station, according to the testimony of Officer Mondini, the officer read the DR-15 Form[1] to Atterbeary, and *79 Atterbeary indicated his willingness to take the breathalizer test. The officer then asked Atterbeary to sign the consent provision on the DR-15 Form acknowledging his willingness to submit to the test. At that point, Atterbeary stated that he did not understand the DR-15 Form and wanted to read it for himself. Officer Mondini gave the form to Atterbeary and then left the room for several minutes. After Officer Mondini returned, Atterbeary informed the officer that he wished to speak to an attorney. When Officer Mondini asked Atterbeary for the name and number of the attorney, Atterbeary stated that he did not have one at the moment. Officer Mondini stated that he asked "him again to sign [the form] and he refused to sign it, which to me he refused to take the breath test." Officer Mondini then asked Atterbeary several routine questions, such as his date of birth and social security number, as part of the officer's completion of the DR-15A Form.[2] Atterbeary responded to each question by stating that he wanted to speak to an attorney. In response to each of the unanswered questions on the DR-15A Form, Officer Mondini filled in the word "refused."[3]
On the form, Officer Mondini had initially checked the box which stated that Atterbeary agreed to submit to an alcohol concentration test, but then crossed it out and marked the refusal box instead. No attempt was ever made to administer the breathalyzer test to Atterbeary. Officer Mondini issued a citation to Atterbeary for driving while intoxicated, called him a cab and released him.
Atterbeary requested and hearings were held before an Administrative Law Judge (ALJ), on July 26 and October 24, 2000.[4] At the hearings, Atterbeary objected to entering Officer Mondini's certification in evidence, because he asserted that the certification did not adequately describe the location of the offense other than to state that it took place in Montgomery County. He argued, therefore, that the MVA had failed to make a prima facie showing that Atterbeary was driving or attempting to drive on a public highway or private property used by the public in general. Throughout his testimony, Atterbeary also maintained that he never refused to sign *80 the form or refused to take a breathalyzer test.
In his findings of fact, the ALJ stated:
Licensee asserts that road where he was approached by officer is a private road. I disagreeevidence by officer and by photo is that it is a public road used by the public in general. Licensee asked for an attorney. When asked for name & phone number he said he did not have one at the moment. I conclude Licensee did not have an attorney to call. Thereafter licensee kept answering he wanted to talk with an attorney to all questions. I conclude therefore he refused to take the test.
He concluded that Officer Mondini had a reasonable basis pursuant to Section 16-205.1 of the Maryland Transportation Article to believe that Atterbeary was driving or attempting to drive while intoxicated or under the influence of alcohol, and that at the time of the incident, Atterbeary was located on a highway or private property which was used generally by the public.
Atterbeary filed a Petition for Judicial Review of the ALJ's decision in the Circuit Court for Howard County[5] pursuant to Maryland Code (1984, 1999 Repl.Vol.), Section 10-222 of the State Government Article. The Circuit Court found that there was substantial evidence to support the ALJ's finding that Atterbeary was driving or attempting to drive while intoxicated on a public road. Nevertheless, the Circuit Court concluded that Officer Mondini had acted in haste in determining that Atterbeary had refused the breathalyzer test:
With regard, however, to the reasonable opportunity to contact an attorney, I think Officer Mondini, in plain English, and no pun intended, jumped the gun. I think the evidencethere is no evidence in the transcript that says, look, we need to get a breathalyzer operator in here. We need to have x-amount of minutes in order to start up the machine and so forth. There is no question that an individual can thwart or attempt to thwart the giving of the intoximeter test or other breath test or test by blood, by pushing the two-hour limit. But there is no evidence of that here.
In other words, there is no testimony that I found in the record that where Officer Mondini said, look, we went back to the Silver Spring station, but I would have, at that hour of the morning, I would have had to call in an intoximeter person, and I told the defendant that that's going to take 22 minutes, approximately, and it's going to take x-amount of minutes to start up the machine, et cetera, et cetera. There is nothing in there. So when you take a look at the time of arrest, and the time that the officer determined a refusal, it was just too quick.
And, therefore, the Court, while it agrees that the State has no obligation to provide information specific to an arrestee of a name, or address, or phone number of an attorney, basically, in my opinion, Officer Mondini should have said, you know, Mr. Atterbeary, here's the phone, call whoever you want. And if Mr. Atterbeary could not get in touch with an attorney, the officer should have said, Mr. Atterbeary, I need to have your election by X and X time. I have *81 to take the test within the two hours. And if you don't tell me by such a[nd] such a time, that's going to thwart that, and I have to then count that as [a] refusal. Basically, Officer Mondini just went too fartoo fast, I should say. It may have been the same outcome, but I don't know that. So on that issue it's reversed.
Accordingly, on June 21, 2000, the Circuit Court entered an order reversing the ALJ's decision to suspend Atterbeary's license, and remanded the matter to the MVA for adjustment in compliance with the order.
MVA filed a petition for writ of certiorari and Atterbeary filed a conditional cross petition for writ of certiorari. We granted both petitions, Motor Vehicle Admin. v. Atterbeary, 365 Md. 472, 781 A.2d 778 (2001) in order to consider the following questions, which we have rephrased:
1. Where a suspected drunk driver orally indicates his willingness to submit to a test of blood alcohol concentration under Section 16-205.1 of the Maryland Transportation Article, and then repeatedly requests to speak with an attorney prior to signing a form consenting to such a test, does his subsequent conduct vitiate his earlier consent?
2. Was an occupant of a vehicle in actual physical control of a vehicle constituting driving or attempting to drive under Section 16-205.1 where the occupant was found awake, behind the wheel of the car with the engine running and parked along the side of a public road when the police responded to the scene?
3. Does a police officer have "reasonable grounds" under Section 16-205.1 to forcibly investigate the condition of a motorist who is "slumped over the wheel" of a parked vehicle?
Based on our responses to the first two questions presented for our review, we need not consider the third issue.
II. Discussion
A. Standard of Review
Section 10-222 of the State Government Article of the Maryland Code, permits the following actions upon judicial review of the administrative agency's decision:
(1) remand the case for further proceedings;
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:
(i) is unconstitutional;
(ii) exceeds the statutory authority or jurisdiction of the final decision maker;
(iii) results from an unlawful procedure;
(iv) is affected by any other error of law;
(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or
(vi) is arbitrary or capricious.
Md.Code (1984, 1999 Repl.Vol.), § 10-222(h) of the State Gov't. Art. Upon judicial review, the Circuit Court is limited to determining whether there was substantial evidence on the record as a whole to support the agency's findings of fact and whether the agency's conclusions of law were correct. See Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68, 729 A.2d 376, 380 (1999)(quoting United Parcel Service, Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 577, 650 A.2d 226, 230 (1994)). In *82 reviewing the administrative agency's decision, we apply the same statutory standards as the Circuit Court. See Maryland Div. of Labor and Ind. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 416, 784 A.2d 534, 539 (2001)(quoting Gigeous v. E. Correctional Inst., 363 Md. 481, 495, 769 A.2d 912, 921 (2001)).
B. What Constitutes A Refusal
We now turn our attention to the merits of MVA's question of what constitutes a refusal to take a blood alcohol concentration test under Section 16-205.1 of the Transportation Article. While the Circuit Court emphasized the time constraints of the testing procedure in determining whether a refusal occurred, we will decide the issue based upon what constitutes a refusal to take the test, which, in this case did not occur.
Section 16-205.1(a)(2) sets forth the general testing policy applicable to individuals who are suspected of driving or attempting to drive while intoxicated:
Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.
Md.Code, § 16-205.1(a)(2) of the Transp. Art. (1977,1999 Repl.Vol.).[6]
Section 10-303(a) of the Courts and Judicial Proceedings Article imposes time limitations on obtaining blood alcohol concentration test results from suspected drunk drivers:
(a) Alcohol concentration.(1) A specimen of breath or 1 specimen of blood may be taken for the purpose of a test for determining alcohol concentration.
(2) For the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended.
"We have consistently recognized that the statutory provisions enacted to enforce the State's fight against drunken driving, namely Md.Code ... § 10-302 to -309 of the Courts and Judicial Proceedings Article and § 16-205.1 of the Transportation Article, were enacted for the protection of the public and not primarily for the protection of the accused." Motor Vehicle Admin. v. Shrader, 324 Md. 454, 464, 597 A.2d 939, 943 (1991); see State v. Moon, 291 Md. 463, 477, 436 A.2d 420, 427 (1981), *83 cert. denied, 469 U.S. 1207, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985).
The DR-15 Form, which Officer Mondini read to Atterbeary and which Atterbeary later read for himself, advises individuals suspected of driving while intoxicated of the consequences of refusing to submit to testing for blood alcohol concentration. There is an automatic 120-day suspension for a test refusal. See Md.Code § 16-205.1(b) of the Transp. Art. If an individual submits to the test and the result is an alcohol concentration in excess of the statutory limit, the suspension for a first offense is forty-five days, or ninety days for a second or subsequent offense.[7]See id. The language of the statute, which allows suspects to withdraw initial refusals to take the test, reflects the legislative policy in favor of obtaining test results:
(g) Withdrawal of initial refusal to take test; subsequent consent.(1) An initial refusal to take a test that is withdrawn as provided in this subsection is not a refusal to take a test for the purposes of this section.
(2) A person who initially refuses to take a test may withdraw the initial refusal and subsequently consent to take the test if the subsequent consent:
(i) Is unequivocal;
(ii) Does not substantially interfere with the timely and efficacious administration of the test; and
(iii) Is given by the person:
1. Before the delay in testing would materially affect the outcome of the test; and
2. A. For the purpose of a test for determining alcohol concentration, within 2 hours of the person's apprehension;...
Md.Code, § 16-205.1(g) of the Transp. Art.; see Embrey v. Motor Vehicle Admin., 339 Md. 691, 697, 664 A.2d 911, 914 (1995)(quoting Motor Vehicle Admin. v. Vermeersch, 331 Md. 188, 194, 626 A.2d 972, 975 (1993)). A person, nevertheless, cannot be compelled to submit to a chemical test for intoxication. See Md.Code, § 10-309, Cts. & Jud. Proc. Art.[8]
Although Section 16-205.1 does not specifically provide that an individual suspected of or arrested for drunk driving has a right to confer with counsel prior to deciding whether to submit to a breathalyzer test, we have held:
the due process clause of the Fourteenth Amendment, as well as Article 24 of the Maryland Declaration of Rights, requires that a person under detention for drunk driving must, on request, be permitted *84 a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process.
Sites v. State, 300 Md. 702, 717-18, 481 A.2d 192, 200 (1984). The limited right to confer or attempt to confer with counsel prior to deciding whether to submit to a breathalyzer test as announced in Sites was not meant to give suspected drunk drivers the ability to postpone administration of the test in order to achieve more favorable results. See Sites, 300 Md. at 714, 481 A.2d at 198 (quoting People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351, 353 (1968))("The privilege of consulting with counsel concerning the exercise of legal rights, should not, however, extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses."). Rather, we explicitly stated:
if counsel cannot be contacted within a reasonable time, the arrestee may be required to make a decision regarding testing without the advice of counsel. We emphasize that in no event can the right to communicate with counsel be permitted to delay the test for an unreasonable time since, to be sure, that would impair the accuracy of the test and defeat the purpose of the statute.
Id. at 718, 481 A.2d at 200. Thus, our decision in Sites only recognized a due process right so that an individual who requests to consult with counsel for the purpose of receiving advice as to whether to submit to a breathalyzer test, must be permitted a reasonable opportunity to do so. See id. at 712, 481 A.2d at 197 (explaining that prior to being formally charged, there can be no attachment of the
Sixth Amendment right to counsel)(citing Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984)); see also Darrikhuma v. State, 81 Md.App. 560, 571, 568 A.2d 1150, 1155 (1990)(explaining that under the holdings of Sites and Brosan v. Cochran, infra, 307 Md. 662, 516 A.2d 970 (1986), "a person arrested for drunk driving has a right to consult with an attorney prior to formulating a decision on whether or not to take a breathalyzer testif that person makes such a request to consult with an attorney")(emphasis in original). Accordingly, "[w]e recognized in Sites neither a right of counsel in the Fifth nor Sixth Amendment sense, but rather a deprivation of the right of due process by the unnecessary denial of a specific request for counsel." McAvoy 314 Md. at 519, 551 A.2d at 880.
In order to protect the licensee's due process right, the right to consult with counsel prior to deciding whether to submit to a breathalyzer test must be meaningful and comport with traditional notions of essential fairness. While there still exists an unrelenting desire "to rid our highways of the drunk driver menace," Willis v. State, 302 Md. 363, 370, 488 A.2d 171, 175 (1985), a "default" refusal to submit to the test cannot be permitted to stand on these facts.
There is no bright line rule which will effectively ensure that the due process right to communicate with counsel prior to submitting to a breathalyzer test as recognized in Sites is heeded in all circumstances without risking being overbroad or under-inclusive. Instead, determining whether an individual has been denied his or her due process right to communicate with counsel prior to submitting to a breathalyzer test requires a case-by-case analysis of the facts and circumstances involved. See Sites, 300 Md. at 718, 481 A.2d at 200.
*85 We have provided some guidance as to what types of communication would be considered an exercise of the Sites due process right to communicate with counsel. For example, in Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986), we held that an individual who timely requests to consult with an attorney and have the attorney administer an independent breathalyzer test may do so in order to make an informed decision as to whether to submit to the test administered by the police. Brosan, 307 Md. at 673-74, 516 A.2d at 976. We further commented that the Sites due process right may encompass telephonic contact and / or face-to-face consultation. See id. at 669, 516 A.2d at 974. The due process right, however, does not confer upon suspects the right to be informed that they can have a preliminary test performed by a non-law enforcement person prior to deciding whether to submit to the official test administered by the police. See Darrikhuma, 81 Md.App. at 572-74, 568 A.2d at 1155-57. Nevertheless, we note that in requesting to confer with counsel, a suspected drunk driver may seek advice upon any aspect of the DR-15 Form, which in addition to advising individuals of the consequences of a test refusal, sets forth the sanctions for having a blood alcohol concentration in excess of the statutory limit, explains the administrative review process, and advises of the potential disqualification of a suspected drunk driver's Commercial Driver's License for a test refusal.
In our analysis of the case at bar, the determinative question is whether Officer Mondini's conclusion that Atterbeary's unwillingness to sign the form and his repeated requests for an attorney constituted a refusal to submit to the test, is correct. At the hearing before the ALJ, Officer Mondini testified that Atterbeary initially said he would take the breathalyzer test. Atterbeary, however, thereafter asked to speak to an attorney after he read the DR-15 Form. When the officer asked for Atterbeary's attorney's name and telephone number, Atterbeary stated he did not have an attorney at the moment. Officer Mondini continued to ask Atterbeary to sign the form, and each time Atterbeary asked to speak with a lawyer. As indicated in the record, approximately twenty minutes elapsed from the time Atterbeary orally stated that he would submit to the breathalyzer test to the point in time where Officer Mondini determined that Atterbeary's refusal to sign the form constituted a refusal to take the test. Atterbeary challenges this determination-he states that he never refused to take the breathalyzer test.
As in every case, the MVA bears the burden of proving that Atterbeary refused to take the breathalyzer test through his conduct. See Borbon v. Motor Vehicle Admin., 345 Md. 267, 280, 691 A.2d 1328, 1334 (1997). A refusal of a breathalyzer or other chemical analysis test "is complete at the moment it is communicated to the officer." Motor Vehicle Admin. v. Gaddy, 335 Md. 342, 348, 643 A.2d 442, 445 (1994).
In the present case, the officer equated Atterbeary's unwillingness to sign the form with a refusal to take the test. Atterbeary's decision to refrain from signing the form before having the opportunity to consult with an attorney, however, did not change the fact that he had orally agreed to submit to the test before reading the DR-15 Form for himself, and consent is implied in the statute. The statute itself contains no language imposing an express written consent requirement. There is absolutely no language reflecting any intent on the part of the Legislature to mandate that a driver must signify consent on a written form. Rather, individuals who drive in Maryland are "deemed to have *86 consented ... to take a test if the person should be detained on suspicion of driving or attempting to drive" under the influence of drugs or alcohol. Md.Code, § 16-205.1(a)(2) of the Transp. Art.
The MVA advocates that an individual's consent or refusal to submit to the breathalyzer test must be reduced to writing for the purpose of providing evidentiary proof. Although a written statement may serve as strong evidence of the drunk driving suspect's willingness or unwillingness to submit to the test and potentially makes easier the MVA's ability to make a prima facie case before an ALJ, we decline to impose such a requirement. In the context of a valid waiver of the privilege against self-incrimination in custodial interrogations, which are subject to closer scrutiny than the present case because of constitutional mandate, the Supreme Court has clearly stated that the Miranda decision did not hold that "an express statement is indispensable to a finding of waiver." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979)("An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.") Thus, a person may waive his or her Fifth Amendment privilege against self-incrimination after orally receiving his or her Miranda warnings and orally indicating a willingness to make a statement. See In re Fletcher, 251 Md. 520, 526-29, 248 A.2d 364, 368-69 (1968)(finding a knowing and intelligent waiver where defendant orally received his Miranda warnings and orally waived his privilege against self-incrimination and his right to retain appointed counsel); State v. Purvey, 129 Md.App. 1, 17-19, 740 A.2d 54, 63-64 (1999)(finding that for a valid waiver of the privilege against self-incrimination it is unnecessary to reduce the waiver of rights and subsequent statement to writing).
Both parties agree that Atterbeary orally agreed to submit to the breathalyzer test. Once Atterbeary requested to read the DR-15 Form and stated that he wanted to consult with counsel, Officer Mondini never asked Atterbeary if he still wished to take the test; the officer only asked Atterbeary to sign the form. Similarly, no attempts were made to administer the test to Atterbeary. Based on this record, it would appear that any refusal to obtain breathalyzer test results was due to the officer's haste in concluding for himself that Atterbeary had withdrawn his initial consent and now refused to submit based on his invocation of the Sites right to counsel, rather than from either an express or implied refusal on the part of Atterbeary.
In rendering his decision, the ALJ determined that Atterbeary had refused to take the test because he asked for an attorney in response to all questions put to him:
Licensee asked for an attorney. When asked for name & phone number he said he did not have one at the moment. I conclude Licensee did not have an attorney to call. Thereafter licensee kept answering he wanted to talk with an attorney to all questions. I conclude therefore he refused to take the test.
In so doing, the ALJ failed to acknowledge that Atterbeary had declared that he would submit to the test. Instead, the ALJ concluded that based on Atterbeary's repeated requests to speak with an attorney that he thereby refused to take the breathalyzer test. Logical reasoning simply cannot be strained in order to support such a leap, for when an individual chooses to exercise his or her right to contact counsel under Sites, the decision to do so *87 is, at that point, neither necessarily a conditional nor a per se refusal to submit to the breathalyzer test. As noted earlier at supra page 85, the DR-15 Form addresses many matters in addition to the consent to take the test. Atterbeary's request to speak to an attorney, without more, may not logically or exclusively be construed to relate only to the testing reference in the form advisement and, thus, be interpreted as an implied refusal of consent to be tested or a withdrawal of consent. The exercise of the Sites right may be treated separately and distinctly from the assessment of whether an individual has refused to submit to a breathalyzer test.[9] Therefore, on the facts and circumstances of this case, there was insufficient evidence to conclude that Atterbeary refused to submit to the breathalyzer test.
C. Driving or Attempting to Drive Under Section 16-205.1(a)(2).
Respondent's primary contention in his cross-appeal is that he was not driving or attempting to drive as set forth in Section 16-205.1(a)(2) at the time Officer Mondini responded to the fire and rescue call at 3121 Automotive Boulevard because he was legally parked on the side of the road and not moving the vehicle. On this basis, he asserts that the implied consent provision for blood alcohol content testing was not triggered by this incident.[10] We disagree with respondent's contention, however, because Officer Mondini responded to the scene and found respondent sitting awake in the driver's seat with the keys in the ignition and the car engine running.
The statute defines the term "drive" as used throughout Maryland's vehicle law as meaning "to drive, operate, move, or be in actual physical control of a vehicle, including the exercise of control over or the steering of a vehicle being towed by a motor vehicle." Md.Code, § 11-114 of the Transp. Art. (emphasis added). Respondent urges that our decision concerning what constitutes being in "actual physical control of a vehicle" as set forth in Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993) controls our decision in this case and mandates the conclusion that Atterbeary was not driving or attempting to drive his vehicle at the time of his arrest.
The facts of the case sub judice are distinguishable from our decision in Atkinson. In Atkinson, the appellant was parked lawfully on the side of the road, sleeping, with the keys in the ignition but the engine not running. Id. at 202, 627 *88 A.2d at 1020. Based on those facts, we held that Atkinson was not in "actual physical control" over the vehicle at the time of his arrest, and thus, could not be driving or attempting to drive his vehicle while intoxicated. Id. at 215, 627 A.2d at 1027 ("We believe that the General Assembly, particularly by including the word `actual' in the term `actual physical control,' meant something more than merely sleeping in a legally parked vehicle with the ignition off."). We provided the following rationale for our holding:
Neither the statute's purpose nor its plain language supports the result that intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty.... Although the definition of "driving" is indisputably broadened by the inclusion in § 11-114 of the words "operate, move, or be in actual physical control," the statute nonetheless relates to driving while intoxicated. Statutory language, whether plain or not, must be read in its context.... In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol. As long as such individuals do not act to endanger themselves or others, they do not present the hazard to which the drunk driving statute is directed. Thus, rather than assume that a hazard exists based solely upon the defendant's presence in the vehicle, we believe courts must assess potential danger based upon the circumstances of each case.
Id. at 212-13, 627 A.2d at 1025-26 (internal citations omitted)(emphasis in original).
In reaching our holding in Atkinson, we set forth six factors which must always be taken into account when assessing the potential danger presented by the various circumstances of each case:
1) whether or not the vehicle's engine is running, or the ignition on;
2) where and in what position the person is found in the vehicle;
3) whether the person is awake or asleep;
4) where the vehicle's ignition key is located;
5) whether the vehicle's headlights are on;
6) whether the vehicle is located in the roadway or is legally parked.
Id. at 216, 627 A.2d at 1027. No one factor will be dispositive of whether an individual was in "actual physical control" of the vehicle. Id. at 216, 627 A.2d at 1028.
Thus, we review the ALJ's decision in light of the six factors for assessing whether an individual was in "actual physical control" as annunciated in Atkinson. The record before the ALJ demonstrated that at the time Officer Mondini arrived on the scene, Atterbeary was not simply passively sitting in his car sleeping off his intoxication outside of a tavern. It is undisputed that upon the officer's arrival, respondent was awake and seated in his parked car on Automotive Boulevard outside of a car dealership with the engine running. Officer Mondini acknowledged that the car had power windows and that he had been informed by the fire and rescue personnel that they had asked Atterbeary to open the window. The record does not indicate whether the engine of Atterbeary's vehicle was running when fire and rescue responded to the scene, nor did Atterbeary state whether he had only started the ignition at *89 the request of the fire and rescue personnel for the sole purpose of lowering his window.
The circumstances of the present case are also distinguishable from the hypothetical scenarios posed in Atkinson where an individual leaves a tavern intoxicated and proceeds to sleep off the intoxication in a legally parked car in the parking lot of the drinking establishment. See Atkinson, 331 Md. at 212, 627 A.2d at 1025-26. Rather, we must consider "what the evidence showed [Atterbeary] was doing or had done, and whether these actions posed an imminent threat to the public." See id. at 216-17, 627 A.2d at 1028.
In the present case, because Atterbeary was sitting in the driver's seat, awake, and with the engine running, he was capable of attempting to drive his vehicle at the time the officers arrived at Automotive Boulevard. Atterbeary was not taking shelter passively in his car while sleeping off the effects of his inebriation. To the contrary, the facts of this case provide strong indicia that Atterbeary posed an imminent threat to public safety. We conclude, therefore, that the record provided a sufficient basis for the ALJ to determine that Officer Mondini had a reasonable articulable suspicion that Atterbeary had been in "actual physical control" of the vehicle upon his arrival at the scene as used in the statutory definition of the term "to drive," thereby triggering the implied consent testing provision of Section 16-205.1(a)(2). See Gore v. State, 74 Md.App. 143, 149, 536 A.2d 735, 738 (1988)(holding that appellant was driving where the evidence showed that although the driver was not moving the vehicle at the time of the officer's arrival, "the car key was in the ignition in the `on' position, with the alternator/battery light lit; that the gear selector was in the "drive" position; and that the engine was warm to the touch").
For the foregoing reasons, we affirm the decision of the Circuit Court for Howard County.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONER.
NOTES
[1] The DR-15 Form, sometimes referred to as The Advice of Rights and Administrative Penalties for Refusal to Submit to a Chemical Test statement, is derived from Section 16-205.1(b) of the Maryland Transportation Article; it provides in part:
You have been stopped or detained and reasonable grounds exist to believe that you have been driving or attempting to drive a motor vehicle while intoxicated; under the influence of alcohol; so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol, or under the influence of a controlled dangerous substance that you could not drive a vehicle safely; or in violation of an Alcohol Restriction.
In this state, any person who drives or attempts to drive a motor vehicle, including a commercial motor vehicle, on a highway or on any private property that is used by the public in general, is deemed to have consented to take a chemical test to determine the alcohol concentration, or a blood test to determine the drug or controlled dangerous substance content of the person. The chemical test shall be at no cost to you. A test of blood shall be administered if the breath test equipment is unavailable, a test is required to determine the drug or controlled dangerous substance content, or if your injuries require medical treatment. The results of such test or a refusal of such test may be admissible as evidence in any criminal prosecution.
* * *
You have the right to refuse to submit to the test. If you refuse: The Motor Vehicle Administration (MVA) will be notified of your chemical test refusal; your Maryland (MD) driver's license shall be confiscated; an Order of Suspension issued, and if eligible, a temporary license issued, valid for 45 days. An Administrative suspension shall be imposed by the MVA against your MD driver's license or driving privilege if you are a non-resident. The suspension shall be 120 days for a first offense and 1 year for a second or subsequent offense. You will be ineligible for modification of the suspension or issuance of a restrictive license; except in certain circumstances, a test refusal suspension may be modified and a restrictive license issued, if you agree to participate in the Ignition Interlock Program for at least 1 year.
[2] The DR-15A Form contains general factual information about the suspected drunk driver and the incident giving rise to the arrest.
[3] Officer Mondini also stated that Atterbeary refused to sign a provision contained on the "Officer's Certification and Order of Suspension" form which would have permitted Atterbeary to have a temporary license for either forty-five days or until completion of an administrative hearing on the issue, whichever occurs first. Atterbeary maintained that Officer Mondini never asked him to sign such a provision.
[4] At the conclusion of the initial hearing on July 26, 2000, the ALJ decided to continue the proceedings and call Officer Mondini to take additional testimony. The subsequent hearing was not held until October 24, 2000.
[5] Although the incidents at issue in this matter occurred in Montgomery County, the provision governing judicial review states, "[u]nless otherwise required by statute, a petition for judicial review shall be filed with the circuit court for the county where any party resides or has a principal place of business." Md.Code (1984, 1999 Repl.Vol.), § 10-222(c) of the State Gov't. Art. Atterbeary met the conditions of the statute in order to file in Howard County.
[6] Section 16-813, which applies to individuals who hold licenses to operate commercial vehicles, provides:
(a) Driving, operating, etc., of vehicle prohibited.An individual may not drive, operate, or be in physical control of a commercial motor vehicle while the individual has any alcohol concentration in the individual's blood or breath.
(b) Refusal to take chemical test.A person who drives, operates, or is in physical control of a commercial motor vehicle while having alcohol in the person's system or who, subject to § 16-205.1 of this title, refuses to take a chemical test to determine the alcohol concentration, shall be placed out-of-service for the 24-hour period immediately following the time the police officer or employer detects alcohol in the driver's blood or breath.
[7] The threshold blood alcohol level for suspension of a drivers license was reduced from 0.10 to 0.08 by Chapters 4 and 5 of the 2001 Maryland Laws. See Md.Code (1977, 1999 Repl.Vol., 2001 Supp.) § 16-205.1(b) of the Transp. Art. We refer to the older version of the law as explicated in the DR-15 Form provided to Atterbeary because the revised version did not take effect until September 30, 2001, and the General Assembly clearly stated that the alterations were to be construed only prospectively. See 2001 Md. Laws, ch. 4 and 5, § 2.
[8] There are exceptions to the rule against compulsion which apply in limited circumstances. A person will be compelled to take the test when the individual was involved in a motor vehicle accident causing death or life threatening injuries to another and the police officer has reasonable grounds to believe that the person was driving or attempted to drive while intoxicated. See Md.Code, § 16-205.1(c) of the Transp. Art. In addition, Section 10-305(c) of the Courts and Judicial Proceedings Article provides, "[a]ny person who is dead, unconscious, or otherwise in a condition rendering him incapable of test refusal shall be deemed not to have withdrawn consent," and thus may be compelled to submit to a test under Section 16-205.1(d) of the Transportation Article.
[9] In its decision below, the Circuit Court emphasized the importance of making meaningful an individual's exercise of the Sites right. Although mindful that suspected drunk drivers may "thwart or attempt to thwart the giving of the intoximeter test ... by pushing the two-hour limit," the court found that depending on the facts and circumstances of the case, an officer may have to take steps to help facilitate the individual's expressed desire to contact an attorney. For example, the court recognized that while "the State has no obligation to provide information specific to an arrestee of a name, or address, or phone number of an attorney," the officer should have made available to Atterbeary a phone book and a phone to use to place a call to whomever could help him.
[10] As a tangential issue, respondent argues that Automotive Boulevard is not a highway or "private property that is used by the public in general" on behalf of his assertion that the implied consent provision of Section 16-205.1(a)(2) was not triggered by his conduct. The record before the ALJ disclosed that Automotive Boulevard originates at Briggs Chaney Road, and serves as a common road running between multiple automobile dealerships, a carwash, and one or more automobile servicing centers located along the thoroughfare. Thus, it was proper to conclude that respondent's presence on Automotive Boulevard satisfied the location requirements set forth in Section 16-205.1(a)(2).
| {
"pile_set_name": "FreeLaw"
} |
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DAVID J. NUGENT,
Appellant,
v. Case Nos. 5D16-2587
& 5D16-3284
JOY E. NUGENT,
Appellee.
________________________________
Opinion filed September 7, 2017
Appeal from the Circuit Court for
Volusia County,
Elizabeth A. Blackburn, Judge.
Theodore R. Doran and Carol Yoon, of
Doran, Sims Wolfe & Ciocchetti, Daytona
Beach, for Appellant.
Joan Stefanec Briggs, of Adams, Briggs
and Briggs, Daytona Beach, for Appellee.
COHEN, C.J.
David Nugent (“Former Husband”) appeals the final judgment dissolving his
marriage to Joy Nugent (“Former Wife”). Former Husband also appeals the order
awarding attorney’s fees and costs to Former Wife. 1 We affirm in part, reverse in part,
and remand for the trial court to readdress the equitable distribution of the parties’ assets.
1
Case no. 5D16-2587 is an appeal from the final judgment of dissolution; case no.
5D16-3284 is an appeal from the order granting Former Wife’s request for attorney’s fees.
These cases were consolidated for purposes of this appeal.
The parties were married for over nine years; they had no children together.
Former Husband worked throughout the marriage as an auto-body technician. Former
Wife worked sporadically during the marriage but has not been employed since 2007.
She testified that she is unable to work because of health issues. Former Wife testified
that she planned to move to Arkansas where she would live in her elderly mother’s home
in order to save on rent, but that she needed money to facilitate the move, including funds
to rent a moving truck, money for fuel, and new tires and brakes for her car. She also
testified that she was in need of new glasses and dental services.
The parties stipulated that Former Husband would retain his non-marital assets,
which totaled slightly over $90,000. The parties also stipulated that the marital home was
devoid of equity. However, the parties disputed the valuation of other marital assets, such
as Former Wife’s automobile, Former Husband’s motorcycle, personal property within the
home, and a bank account in Former Husband’s name. The former couple also had
liabilities from consumer credit cards and outstanding medical bills that totaled
approximately $28,000.
The court distributed the parties’ marital assets, largely making each party
responsible for their respective assets and liabilities, and awarded the marital home to
Former Husband. The trial court awarded Former Wife $750 per month in durational
alimony for seven years. Former Wife was also awarded a $2500 lump-sum payment of
bridge-the-gap alimony. 2 The court subsequently granted Former Wife’s request for
attorney’s fees and costs. This appeal followed.
2 The trial court’s order did not use the phrase “bridge-the-gap” alimony—referring
instead only to “lump-sum alimony.” Yet “lump-sum” is not a type of alimony but rather a
method of allocating payments—any form of alimony can be awarded either as a lump
2
Former Husband first argues that the trial court erred in awarding alimony to
Former Wife. We review a trial court’s ruling on alimony for abuse of discretion. See Duke
v. Duke, 211 So. 3d 1078, 1080 (Fla. 5th DCA 2017). Durational alimony is available “to
provide a party with economic assistance for a set period of time following a marriage of
short or moderate duration.” § 61.08(7), Fla. Stat. (2015). “Bridge-the-gap” alimony is
awarded “to assist a party by providing support to allow the party to make a transition
from being married to being single.” Id. § 61.08(5). Before awarding alimony, the court
must make a finding regarding each party’s need for alimony and the other party’s ability
to pay. Id. § 61.08(2). The court must also consider the factors outlined in subsections
61.08(2)(a)–(j). Id.
The trial court found that “after considering all of the factors of Section 61.08,”3
Former Wife had a need for alimony and Former Husband had the ability to pay. The
court pointed out that Former Husband’s income was $52,896, while Former Wife had
been unemployed for many years. The court imputed annual part-time income to Former
Wife at $10 per hour, although the court did not provide a dollar amount for the total. The
court also noted that Former Husband had significantly more non-marital assets than
Former Wife, the preferential tax treatment he would receive on his alimony payments,
his savings on health insurance premiums by no longer providing coverage for Former
Wife, and the additional expense Former Wife would incur by paying for her own health
sum or as a periodic payment. See § 61.08(1), Fla. Stat. (2015). It is clear from the court’s
rationale for this award that the court was ordering bridge-the-gap alimony.
3
The final judgment does not explicitly address the length of the parties’ marriage,
which was nine years. Presumably this was a marriage of moderate duration, as it lasted
more than seven years but less than seventeen years. See § 61.08(4), Fla. Stat. (2015).
3
insurance. Regarding the $2500 lump-sum payment of bridge-the-gap alimony, the court
found that based on his non-marital assets, Former Husband had the ability to pay and
Former Wife was in need of support to assist with her immediate dental, vision, and
vehicle needs prior to her move to Arkansas.
Former Husband first challenges the lump-sum payment of $2500 to Former Wife.
However, the trial court’s findings are sufficient to support the award. Former Wife’s
expenses are precisely the type that the statute contemplates. See id. § 61.08(5) (“Bridge-
the-gap alimony may be awarded to assist a party by providing support to allow the party
to make a transition from being married to being single. . . . [It] is designed to assist a
party with legitimate identifiable short-term needs . . . .”).
Regarding the durational alimony award, it is undisputed that Former Wife never
worked full-time for longer than a few months during the marriage and never earned more
than $9000 per year. Beyond the brief periods in 2007 and 2013 when Former Wife
worked full-time, no evidence supported imputing a full-time wage to Former Wife as
advocated by Former Husband. Although the trial court mistakenly found that Former Wife
had not worked full-time since 1999, the record supports the more important finding—that
Former Wife is not capable of full-time work. Based on the evidence and findings as to
Former Husband’s income and assets, the trial court did not abuse its discretion in finding
that Former Husband has the ability to pay durational alimony of $750 per month.
Former Husband next argues that the trial court erred in the equitable distribution
of the parties’ assets. This Court reviews orders on equitable distribution for abuse of
discretion. Coleman v. Bland, 187 So. 3d 298, 299 (Fla. 5th DCA 2016). Former Wife
concedes that the equitable distribution award contains numerous valuation errors. She
4
acknowledges that the proper calculation for the distribution of marital assets would leave
her with approximately $1314 more than Former Husband. While the parties stipulated to
the values of many marital assets, the parties did not stipulate to an unequal distribution.
Therefore, we decline to treat the trial court’s calculation errors as de minimis. 4 See Packo
v. Packo, 120 So. 3d 232, 234 (Fla. 5th DCA 2013) (“Without proper valuation of the
marital assets, this Court is unable to meaningfully review the trial court’s
distribution . . . .”). Moreover, the trial court neglected to make findings as to why each
party should take an unequal share. See § 61.075(1), (3), Fla. Stat. (2015); Packo, 120
So. 3d at 233.
Accordingly, we reverse the final judgment of dissolution and remand for the trial
court to correct the calculation errors in the equitable distribution order and to determine
whether an equalizing payment is appropriate. See Neiditch v. Neiditch, 187 So. 3d 374,
376 (Fla. 5th DCA 2016). We affirm as to the remaining issues raised by Former Husband,
including the order awarding attorney’s fees to Former Wife.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PALMER and EISNAUGLE, JJ., concur.
4 However, the relatively small amount resulting from the unequal distribution is
not sufficient to merit reconsideration of the alimony award.
5
| {
"pile_set_name": "FreeLaw"
} |
781 F.2d 343
54 USLW 2395, 5 Fed.R.Serv.3d 807
Anthony DELLA GROTTA, Plaintiff, Appellee,v.STATE OF RHODE ISLAND, Defendant, Appellant.
No. 85-1214.
United States Court of Appeals,First Circuit.
Argued Sept. 4, 1985.Decided Jan. 17, 1986.
Elizabeth A. Del Padre, Sp. Asst. Atty. Gen., with whom Arlene Violet, Atty. Gen., was on brief for appellant.
Thomas C. Plunkett with whom Leonard A. Kiernan, Jr. was on brief for appellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and CEREZO,* District Judge.
LEVIN H. CAMPBELL, Chief Judge.
1
The State of Rhode Island appeals from a jury verdict in the United States District Court for the District of Rhode Island awarding plaintiff Anthony Della Grotta $14,000 against the State for alleged deprivation of his civil rights. We hold that the State has waived its eleventh amendment immunity and is otherwise a suable "person" within 42 U.S.C. Sec. 1983. Because there was lacking any evidence that any deprivation of Della Grotta's civil rights was caused by a "policy or custom" of the State, however, we also hold that the district court should have allowed the State's motion for a new trial.
I. FACTS
2
On July 19, 1983, plaintiff Anthony Della Grotta, then 18 years old, went to Goddard Park in Warwick, Rhode Island, to go scuba diving. The park is owned by the State of Rhode Island, and is served by the Rhode Island Department of Environmental Management Park Police. On July 19, 1983, the supervising park police officer was Richard E. Coons, one of the defendants in the trial below.
3
When he arrived at Goddard Park, Della Grotta saw that Lisa Meddaugh, a former girlfriend, was working on a lemonade truck. Della Grotta boarded the truck, put his hand on Meddaugh's shoulder, and asked her for a date. Meddaugh asked him to leave, saying she was busy with customers. Della Grotta promptly stepped down off the truck and walked over to the beach to scuba dive.
4
Soon thereafter, Meddaugh noticed that $40 was missing from her cash box. She went to the park police office and filed a complaint with Officer Coons that suggested Della Grotta might have taken the money. On the basis of this complaint, Coons dispatched two officers to bring Della Grotta to the park police office for questioning. Della Grotta came peacefully. At the time he had in his possession only 11 cents, and a search of his car pursuant to his written consent failed to turn up the missing $40. Officer Coons testified at trial that on the basis of this evidence, as well as the fact that Della Grotta "was making sense" in his protestations that he was not involved in any theft, it was soon apparent that Della Grotta was not responsible for the disappearance of the money. Nevertheless, Della Grotta was detained at the police station for several hours, and upon his release, was given a summons for disorderly conduct. Coons conceded at trial that, in fact, Della Grotta had not at any time acted in a manner that could reasonably be characterized as "disorderly."
5
On July 27, two days prior to Della Grotta's scheduled arraignment on the disorderly conduct charge, Meddaugh advised Officer Coons that she wished to withdraw her complaint against Della Grotta. Della Grotta was not informed about this action. Therefore, he went to court on July 29 expecting to face a disorderly conduct charge. Just before entering the courtroom, however, he was informed by Officer Coons that a charge of assault was being substituted for the disorderly conduct charge.
6
At the actual arraignment, Meddaugh appeared and formally withdrew her complaint, and all charges against Della Grotta were dismissed.
7
Based on the foregoing facts, Della Grotta brought an action against Officer Coons and the State of Rhode Island pursuant to 42 U.S.C. Sec. 1983, alleging violation of his constitutional rights to be free from false arrest, false imprisonment, false charges, and illegal searches. The case was tried before a jury for two-and-a-half days. At the close of all the evidence, neither defendant moved for a directed verdict. The jury returned a verdict of $10,000 in compensatory damages and $2,000 in punitive damages against Officer Coons, and $14,000 in compensatory damages against the State of Rhode Island. Defendants' motions for judgment notwithstanding the verdict or for a new trial were denied. The State alone now appeals to this court.1
II. WAIVER OF ELEVENTH AMENDMENT IMMUNITY
8
Rhode Island argues that the eleventh amendment prevents its being sued. Although not raised below, this contention can be pursued here since the eleventh amendment is a jurisdictional bar to suits against states and may be raised on appeal for the first time. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); Ford Motor Company v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945). But see Atascadero State Hospital v. Scanlon, 473 U.S. ----, ----, 105 S.Ct. 3142, 3150-52, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting).
9
The eleventh amendment would normally be an absolute defense for Rhode Island to this action. However, appellee insists that Rhode Island has waived its eleventh amendment immunity. Although the circumstances are peculiar, we agree.2
10
It is well settled that just as a state may waive its sovereign immunity to suit in its own courts, it may waive its eleventh amendment immunity to suit in the federal courts. Atascadero, 473 U.S. at ----, 105 S.Ct. at 3144-45; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883).3 A state's waiver of sovereign immunity in its own courts does not necessarily imply waiver of its eleventh amendment immunity, however. The Supreme Court emphasized in Atascadero that "in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court." Atascadero, 473 U.S. at ----, 105 S.Ct. at 3147 (emphasis in original). See also Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61 ("In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.' ").
11
Judged by the above standards, the Rhode Island statute on which Della Grotta relies for his waiver argument seems deficient. That statute, section 1 of R.I.Gen.Laws Sec. 9-31-1 (1985), reads as follows:
12
The state of Rhode Island ... shall, subject to the period of limitations set forth in Sec. 9-1-25, hereby be liable in all actions of tort in the same manner as a private individual or corporation, provided however, that any recovery in such action shall not exceed the monetary limitations set forth in the chapter.
13
This language does not refer to actions in federal court, hence failing to meet the strict standard of eleventh amendment waiver enunciated in Atascadero and Edelman, supra. But see Marrapese v. Rhode Island, 500 F.Supp. 1207 (D.R.I.1980) (finding waiver). This would be an end to the matter were it not for the fact that, in 1983, the Rhode Island Supreme Court ruled unequivocally, in response to questions certified by the federal district court in another case, that section 9-31-1 "manifests ... a legislative intent" to waive the State's eleventh amendment immunity to suit in federal court. Laird v. Chrysler Corp., 460 A.2d 425 (R.I.1983). The Laird decision makes it necessary for us to decide whether, in spite of the Rhode Island statute's failure to spell out an intention to allow suit against the State in a federal court, we should nonetheless defer to the Rhode Island Supreme Court and find a waiver. We believe the answer is "yes."
14
The question of waiver is one of state legislative intent. Cf. Palmer v. Ohio, 248 U.S. 32, 34, 39 S.Ct. 16, 17, 63 L.Ed. 108 (1918); Atascadero, 473 U.S. at ----, n. 5, 105 S.Ct. at 3153 n. 5 (Brennan, J., dissenting). The Supreme Court's insistence that a state statute reflect on its face the state's intention to waive its constitutional immunity from federal suit is a reflection of the Court's solicitude for the state's interest: the Court insists that a waiver be found only where it is manifest that one was intended. But legislative intent is a matter of state law, on which the highest court of a state speaks with finality. Mullaney v. Wilbur, 421 U.S. 684, 690-91, 95 S.Ct. 1881, 1885-86, 44 L.Ed.2d 508 (1975).4 Where the highest court of a state has construed a state statute as intending to waive the state's immunity to suit in federal court, the state's intent is just as clear as if the waiver were made explicit in the state statute.
15
It is true that the Supreme Court has frequently held that whether federal rights are waived is a federal question on which a state court determination does not bind a federal court. See, e.g., Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 237 (1963). These cases, however, reflect the Court's concern that an individual's purported waiver of his federal rights may be marked by "[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats." Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1711-12. A state legislature's waiver of the state's rights does not raise this concern. It would be inappropriate for a federal court, in reviewing a state legislative waiver of the eleventh amendment, to inquire into whether the legislators were acting in a voluntary and knowing manner. Similarly, when the highest state court declares the intent of its own legislature, the federal courts have no reason to exercise special oversight designed to save the state from its own or (if distinguishable) its judiciary's folly.
16
To be sure, the Supreme Court has insisted that waiver may not be inferred from a less than explicit statute. Atascadero, 473 U.S. at ----, 105 S.Ct. at 3146-47; Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. But this rule, designed to protect a state from a federal court's ill-founded, possibly mistaken, view of what its state legislature really intended, could not have been meant to apply when the state's highest court has authoritatively declared the legislature's true intent.
17
We thus hold that the determination by the Rhode Island Supreme Court in Laird that section 9-31-1 waives, and was intended to waive, the State's eleventh amendment immunity is dispositive of this issue. Della Grotta is not barred by the eleventh amendment from bringing this section 1983 action against the State itself.
18
III. THE STATE AS A "PERSON" UNDER SECTION 1983
19
That the State of Rhode Island has waived its eleventh amendment immunity to suit in federal court does not compel the conclusion that the State was a proper defendant in this action. The State can only be held liable if it is a "person" as the term is used in 42 U.S.C. Sec. 1983.
20
Title 42 U.S.C. Sec. 1983 was originally enacted as section 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13. It provides:
21
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
22
States are ordinarily immune to suit under this statute because of the protection afforded them under the eleventh amendment.5 This threshold barrier to suit has usually made it unnecessary for courts to focus on whether a state is a "person" under section 1983.6 The issue is presented sharply in the present case, however, for Rhode Island has waived its eleventh amendment immunity. Therefore, if a state is considered a "person" under section 1983, Della Grotta has a cause of action against the State, while if it is not a "person," we must order the district court to dismiss the action against Rhode Island.
23
We think that a state like Rhode Island, which has waived its eleventh amendment immunity, is a person for section 1983 purposes. This issue was comprehensively discussed by Judge Pettine in Marrapese v. Rhode Island, 500 F.Supp. 1207, 1210-12 (D.R.I.1980), and we agree generally with his analysis. Certainly we agree that the Supreme Court did not hold differently in Quern. See note 6, supra.
24
In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), after an extensive review of the legislative history of section 1983, the Court stated that "[s]ince there is nothing in the 'context' of Sec. 1 of the Civil Rights Act calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." Id., at 689-90 n. 53, 98 S.Ct. at 2035 n. 53. See also Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). The Court observed that the statute "was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights," id., 436 U.S. at 700-01, 98 S.Ct. at 2040-41, and therefore held that municipalities and other local governmental units are "persons" for purposes of section 1983.
25
While the Court expressly limited its holding in Monell to "local governmental units which are not considered part of the State for Eleventh Amendment purposes," id., at 690 n. 54, 98 S.Ct. at 2035 n. 54, we see nothing in Monell to suggest that, apart from eleventh amendment considerations, a state should be viewed differently from other bodies politic. Where, as here, a state has waived its eleventh amendment immunity, there is no principled reason to distinguish between states and municipalities as "persons" suable under section 1983.
26
We therefore hold that a state is a "person" within section 1983 such that, where it has voluntarily waived its eleventh amendment immunity to suit in federal court, it may be held liable in the same respect as municipalities and local units of government.7
IV. SUFFICIENCY OF THE EVIDENCE
27
Rhode Island argues that, as a matter of law, there was insufficient evidence to warrant a finding that the State of Rhode Island was liable for the alleged deprivation of plaintiff Della Grotta's constitutional rights. It makes this argument in reliance on the established principle that governmental bodies cannot be held liable under section 1983 on respondeat superior principles, i.e., they are not liable just because a person in their employ violates section 1983. Monell, 436 U.S. at 690-95, 98 S.Ct. at 2035-38. Here, as we will discuss below, there was no evidence that Officer Coons was acting pursuant to any "policy or custom" of the State of Rhode Island when he violated Della Grotta's rights. The State contends, therefore, that the district court erred in failing to grant its motions for judgment notwithstanding the verdict or, in the alternative, for a new trial.
28
The State, however, forfeited its right to judgment n.o.v. by failing to move for a directed verdict at the close of all the evidence. Under Fed.R.Civ.P. 50(b), the making of a motion for directed verdict at the close of all the evidence is a prerequisite to a motion for judgment n.o.v. R & R Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984); Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d 565, 568 (1st Cir.1978); LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 445 (1st Cir.1976); 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil Sec. 2537 (1971).8
29
The State maintains that its "technical noncompliance" with Rule 50(b) should not have barred its motion for judgment n.o.v. The State's noncompliance with Rule 50(b) was far more than technical, however; at no time did the State inform the district court (much less make a formal motion) that it desired a review of all the evidence for sufficiency as a matter of law.
30
The State would also like to fit its case within the very narrow exception adopted by this court in Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969). See also Beaumont v. Morgan, 427 F.2d 667, 669 (1st Cir.), cert. denied, 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970). In Bayamon, defendants moved for a directed verdict at the close of the plaintiff's case. The district court expressly reserved ruling on the motion, and indicated that it would not rule on the motion until after the case went to the jury. Thereafter, defendant presented evidence that occupied only two pages of the trial transcript, took no more than a few minutes, and did not even bear on the central issue in the case. The panel held that, under the very unusual facts of the case, where the defendant had moved for a directed verdict (albeit prematurely), and the district court made clear its disposition to let the case go to the jury, and where the only evidence presented by the defendant was brief and could not possibly have changed the court's decision on the motion for a directed verdict, the failure to renew the motion was not necessarily fatal to the subsequent motion for judgment n.o.v.
31
The proceedings below in the instant case were marked by none of the peculiarities that warranted Bayamon 's deviation from the general rule that a motion for judgment n.o.v. must be preceded by a motion for directed verdict at the close of all the evidence. The district court here gave defendant no indication that its motion for directed verdict at the close of plaintiff's case would suffice to preserve the issue for review. See Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d 565, 569-70 (1st Cir.1978). In addition, in contrast to the scant evidence presented by defendant following the motion for directed verdict in Bayamon, defendants' evidence in the present case, although limited to a single witness, took place over the course of two days, and constituted nearly half of the trial transcript. See Gillentine v. McKeand, 426 F.2d 717, 722-23 (1st Cir.1970). Indeed, it can hardly be disputed that plaintiff's case, at least against Coons, was far stronger at the close of all evidence than it was at the time the original motion for directed verdict was made. Under such circumstances, the State was clearly required to renew its motion.
32
Rhode Island is thus barred from judgment n.o.v. by its counsel's failure to follow the dictates of Rule 50(b). But Rhode Island also moved for a new trial, and we believe that where, as here, the verdict is totally without legal support because of the lack of any evidence on a key element of plaintiff's case, it was error to deny a new trial. The weight of authority favors the proposition stated by the Second Circuit in Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814, 817 (2d Cir.1970), that "where the undisputed evidence results in a verdict that is totally without legal support justice requires a new trial despite counsel's failure to move for a directed verdict prior to submission of the case to the jury."9 This court took a similar approach in Sears v. Pauly, 261 F.2d 304 (1st Cir.1958), although we hesitated in LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 445 (1st Cir.1976), perhaps because our earlier decision in Sears was not called to our attention. The Third Circuit has taken the same approach, Cowger v. Arnold, 460 F.2d 219 (3d Cir.1972), and the leading commentators approve. 6A J. Moore, Moore's Federal Practice p 59.04 (2d ed. 1985); 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil Sec. 2539 (1971). Accordingly, if there was a total absence of evidence on an essential element of plaintiff's proof, the district court should have granted a new trial as the State requested, although it properly denied a judgment n.o.v. because of the earlier failure to move for a directed verdict.
33
We agree with Rhode Island that Della Grotta's case against the State was totally lacking in evidence of an essential element. Plaintiff presented a total of five witnesses. Della Grotta himself testified as to the facts of the incident on July 19, 1983, and the subsequent events leading to his arraignment on July 29. Della Grotta's father and brother each testified to the particular aspects of the case that they observed, as did John Leyden, a lifeguard at Goddard Park on July 19. The plaintiff also asked two questions of Officer Coons, neither of which was related to the conduct of the State.
34
Defendant Coons and the State presented only one witness: Coons himself. Coons testified in some detail regarding his actions during the July 19 incident and during the subsequent ten days.
35
At no time was any evidence introduced that even suggested Coons acted in accordance with any State "policy" or "custom" in violating Della Grotta's constitutional rights. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. There was no evidence that Coons acted pursuant to State policy or custom in detaining Della Grotta after he was satisfied Della Grotta had not committed the theft. There was no evidence that Coons acted in accordance with State policy or custom in charging Della Grotta with disorderly conduct despite the dearth of evidence to support such a charge.
36
Similarly, there was no evidence that State policy or custom dictated that Della Grotta not be informed of the withdrawal of Meddaugh's complaint against him, nor that the assault charge be substituted for the charge of disorderly conduct. Nor was there any evidence presented that Coons's actions were the result of a grossly substandard state training program.10
37
All of the evidence in the case was directed to the facts of the particular events in which plaintiff was involved: the incident at Goddard Park, plaintiff's detention at the police station, and the events leading to his subsequent arraignment. The only basis Della Grotta presents for claiming that his injuries resulted from a custom or policy of the State is the inference that, if such a deprivation of rights occurred in this instance, it must have occurred at other times as well.11
38
The case law is clear that this asserted inference will not support such a verdict against the State. In City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), seven members of the Supreme Court agreed that proof of a single incident of unconstitutional activity is insufficient as a matter of law to support liability under Monell, "unless proof of the incident includes proof that it was caused by an existing, unconstitutional [governmental] policy, which policy can be attributed to the [governmental] policymaker." Id., 105 S.Ct. at 2436.12
39
The district court recognized the complete lack of evidence supporting the evidence against the State. It was under the misapprehension, however, that it should not grant a new trial where no motion for directed verdict had been made at the close of all the evidence, even if there was no evidence to support the jury verdict.13 While we fully agree with the district court's criticism of the State's failure to lay a proper foundation for its more cogent motion, that for judgment n.o.v., the State was entitled to prevail on its motion for new trial given the complete lack of evidence that any "policy or custom" of the State contributed to Della Grotta's injuries.
40
The judgment of the district court relative to the defendant State of Rhode Island is therefore vacated, and the case is remanded for a new trial as to that defendant.
*
Of the District of Puerto Rico, sitting by designation
1
Officer Coons did not appeal from the judgment entered against him
2
The eleventh amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." The Supreme Court has construed the amendment as barring suits against a state by its own citizens, even though the amendment does not explicitly so provide. See Atascadero State Hospital v. Scanlon, 473 U.S. ----, ----, 105 S.Ct. 3142, 3144-45, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.2d 842 (1890)
3
This is so despite the otherwise established principle that subject matter jurisdiction cannot be conferred by consent of the parties. See, e.g., Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884)
4
The present case involves only the question of whether a state's waiver of its eleventh amendment immunity is a matter of state law. This should be distinguished from the situation in which Congress, in the exercise of its constitutional power to regulate commerce, attaches the condition of amenability to suit upon any state participating in the regulated sphere, Parden v. Terminal Railway Co., 377 U.S. 184, 192-98, 84 S.Ct. 1207, 1212-16, 12 L.Ed.2d 233 (1964); where Congress explicitly abrogates a state's eleventh amendment immunity as a condition of participation in federal programs, see, e.g., Florida Department of Health v. Florida Nursing Home, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); or where Congress authorizes federal courts to enter awards against states as a means of enforcing the substantive guarantees of the fourteenth amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Under each of these latter circumstances, the question of whether the state has actually entered the regulated sphere so as to subject itself to congressional regulation is one of federal law
5
In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the Supreme Court held that in enacting section 1983, Congress did not intend to abrogate the states' eleventh amendment immunity. Cf. note 4, supra
6
A number of courts have not recognized the dual nature of this inquiry. See, e.g., Ruiz v. Estelle, 679 F.2d 1115, 1136-37 (5th Cir.), aff'd in part, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Holladay v. Montana, 506 F.Supp. 1317, 1321 (D.Mont.1981); Bailey v. Ohio State University, 487 F.Supp. 601, 603 (S.D.Ohio 1980); cf. Quern, 440 U.S. at 350-51, 99 S.Ct. at 1150-51 (Brennan, J., concurring). There are two questions: (1) is the state immune from suit under the eleventh amendment? and (2) is the state a "person" under the statute? That a state may be immune from suit does not require the conclusion that it is not a "person" under the statute and therefore is not suable in the event it has waived its immunity. In Quern, the majority did not decide whether a state is a "person" although challenged to do so by Justice Brennan in his concurrence. See Marrapese v. Rhode Island, 500 F.Supp. 1207, 1211 & n. 9 (D.R.I.1980). As noted in footnote 5, supra, Quern was based entirely on the eleventh amendment. The Court stated its holding as follows:
[U]nlike our Brother Brennan, we are simply unwilling to believe ... that Congress intended by the general language of Sec. 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice Brennan's opinion, justify a conclusion different from that which we reached in Edelman.
Quern, 440 U.S. at 341, 94 S.Ct. at 1145. In Edelman, as in Quern, the Court did not address the issue of whether states are "persons" within section 1983.
7
Several lower courts have similarly ruled, apart from eleventh amendment considerations, that a state is a "person." See, e.g., Gay Student Services v. Texas A & M University, 612 F.2d 160, 163-65 (5th Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980); Meeker v. Addison, 586 F.Supp. 216, 225-26 (S.D.Fla.1984); Harris v. Arizona Board of Regents, 528 F.Supp. 987, 991-92 (D.Ariz.1981); Irwin v. Calhoun, 522 F.Supp. 576, 583-85 (D.Mass.1981); Marrapese v. Rhode Island, 500 F.Supp. 1207, 1209-12 (D.R.I.1980). While there exist post-Monell cases suggesting that states are not persons for purposes of section 1983, we have found no case so stating in the present context, where the state has waived its eleventh amendment immunity. See, e.g., Toledo, Peoria & W.R. Co. v. Illinois, 744 F.2d 1296, 1298-99 n. 1 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985); Ruiz v. Estelle, 679 F.2d 1115, 1137 n. 75 (5th Cir.), aff'd in part, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 726-27 n. 2 (5th Cir.1982); Emswiler v. McCoy, 622 F.Supp. 786, 788 (S.D.W.Va.1985); Croatan Books v. Virginia, 574 F.Supp. 880, 883-84 (E.D.Va.1983); Kompara v. Board of Regents of the State University, 548 F.Supp. 537, 540-42 (M.D.Tenn.1982)
8
Rule 50(b) provides:
Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.... [A] party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict....
(Emphasis added.)
9
We will, of course, insist that a motion for new trial have been made in the district court, as it was here. We do not suggest that, without such a prior motion, we would later feel free to order a new trial. Cf. Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d at 570
10
An isolated episode of misperformance by a single officer is not of itself a basis for inferring improper training. City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). See also Kibbe v. Town of Springfield, 777 F.2d 801, 804-05 (1st Cir.1985)
11
Plaintiff's counsel argued to the court below that "[t]he State of Rhode Island has an obligation to come in and at least put in some evidence to the Court that this isn't the way we do things." The failure of the State to do so, counsel asserted, created a "reasonable inference ... that the State of Rhode Island does this all the time at Goddard Park."
12
Our recent decision in Kibbe v. Town of Springfield, 777 F.2d 801 (1st Cir.1985), is of no help to plaintiff. In Kibbe, three different police officers shot at the decedent during the course of an automobile chase, and at least ten officers were involved in the incident altogether. The panel regarded this widespread activity as being more reflective of departmental operating procedures and policies than the single incident involving a single officer marking both Tuttle and the present case. In Kibbe this evidence, along with specific evidence of departmental rules violated by the officers involved, and of the training received by city police officers (none of which evidence exists on the present record), was thought sufficient to create a jury question as to whether the defendant city was grossly negligent in failing to train its officers
13
At the close of the hearing on post-trial motions, the district court stated,
I must be frank to say that I am not aware of any evidence in this record which provides a basis for an inference that this event occurred by means of some custom or practice or policy of the State of Rhode Island. Be that as it may, it seems to me that at some point in time it is too late to make certain arguments.
Here the defendant is seeking a new trial, and presumably judgment notwithstanding the verdict. I suppose it could be argued that to permit this verdict to stand would constitute an injustice, in that probably [there] isn't a basis for a verdict against the State. On the other hand, the parties here have a responsibility to raise the questions that should be raised at the appropriate time, and that was not done in this instance. The system of justice is hardly going to function very well on the basis of afterthoughts. The time for protecting the client's rights and for contemplation of those rights, is prior to trial, not after, when things do not turn out well and there is a thrashing about to find some reason why not.
It seems to me that in this case, the interests of justice are better served by permitting the verdicts to stand; that having submitted this case to the jury on the basis of unobjected to instructions, without a motion for direction, the State in this instance is not in the position now to come in and argue that that shouldn't have happened, simply because the jury came back with a verdict that was unfavorable to the State of Rhode Island.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6505
JAMES CAVANAGH,
Petitioner - Appellant,
versus
JOHN LAMANNA, Warden, Federal Correctional
Institution at Edgefield,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. R. Bryan Harwell, District Judge.
(3:05-cv-02842-RBH)
Submitted: June 21, 2007 Decided: June 29, 2007
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Cavanagh, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Cavanagh, a federal prisoner, appeals the district
court’s order accepting the recommendation of the magistrate judge
and denying relief on his 28 U.S.C. § 2241 (2000) petition. We
have reviewed the record and find no reversible error.
Accordingly, we deny Cavanagh’s motion for appointment of counsel
and affirm for the reasons stated by the district court. Cavanagh
v. Lamanna, No. 3:05-cv-02842-RBH (D.S.C. Mar. 22, 2007). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 2 -
| {
"pile_set_name": "FreeLaw"
} |
Case: 10-60089 Document: 00511202901 Page: 1 Date Filed: 08/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2010
No. 10-60089
Summary Calendar Lyle W. Cayce
Clerk
QUENTIN A. MITCHELL,
Petitioner-Appellant
v.
BRUCE PEARSON,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:09-CV-191
Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Quentin Antwan Mitchell, federal prisoner # 95256-080, is serving a total
219-month sentence after he pleaded guilty, in two separate cases, to two counts
of interference with commerce by robbery, two counts of carjacking, and one
count of brandishing a firearm during and in relation to a crime of violence. He
appeals the denial of his 28 U.S.C. § 2241 petition in which he asserted that one
of his judgments of conviction was invalid because the district court dismissed
all of the counts contained therein and that, therefore, the Bureau of Prisons did
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60089 Document: 00511202901 Page: 2 Date Filed: 08/13/2010
No. 10-60089
not have the authority to incarcerate him for 219 months. Mitchell previously
has filed one untimely 28 U.S.C. § 2255 motion and two unsuccessful § 2241
petitions.
The district court correctly determined that Mitchell’s allegations of
sentencing error are not cognizable in a § 2241 petition. See Reyes-Requena v.
United States, 243 F.3d 893, 900 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876,
877 (5th Cir. 2000). Mitchell may challenge his conviction under § 2241 only if
he establishes that “the remedy [under § 2255] is inadequate or ineffective to
test the legality of his detention.” § 2255(e); see Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001) (citing Reyes-Requena, 243 F.3d at 904). Mitchell does
not rely upon a retroactively applicable Supreme Court decision that establishes
that he is actually innocent. Thus, he fails to demonstrate that the remedy
under § 2255 is inadequate. See Jeffers, 253 F.3d at 830-31.
We caution Mitchell that any future frivolous, repetitive, or otherwise
abusive filings may result in the imposition of sanctions, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
or any court subject to this court’s jurisdiction. The judgment of the district
court is AFFIRMED, Mitchell’s motion to appoint counsel is DENIED, and a
SANCTION WARNING IS ISSUED.
2
| {
"pile_set_name": "FreeLaw"
} |
536 So.2d 1214 (1989)
Elizabeth BISHOP and E.C. Bishop, Individually and in his Capacity as Administrator of the Estate of his Minor son, Mark Bishop
v.
Ivan CALLAIS, Cameron Barr, as Administrator of Coliseum Medical Center, Coliseum Medical Center (Community Psychiatric Centers, Inc.), et al.
No. 88-C-2745.
Supreme Court of Louisiana.
January 13, 1989.
Denied.
MARCUS and WATSON, JJ., would grant the writ.
| {
"pile_set_name": "FreeLaw"
} |
5(&200(1'(' )25 )8//7(;7 38%/,&$7,21
3XUVXDQW WR 6L[WK &LUFXLW 5XOH
(/(&7521,& &,7$7,21 )(' $SS 3 WK &LU
)LOH 1DPH DS
81,7('67$7(6&28572)$33($/6
)257+(6,;7+&,5&8,7
BBBBBBBBBBBBBBBBB
.$07(&+ ,1& ;
3HWLWLRQHU
1RV
Y
!
1$7,21$/ /$%25 5(/$7,216
%2$5'
5HVSRQGHQW
,17(51$7,21$/
%527+(5+22' 2)
%2,/(50$.(56 ,521 6+,3
%8,/'(56 %/$&.60,7+
)25*(56 $1' +(/3(56 $)/
&,2
,QWHUYHQRU
1
2Q3HWLWLRQIRU5HYLHZIURPWKH'HFLVLRQRIWKH1DWLRQDO
/DERU5HODWLRQV%RDUG
1RV&$ &$
6XEPLWWHG $XJXVW
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
'HFLGHGDQG)LOHG 6HSWHPEHU
GLVSXWHVZKHQVZRUQWHVWLPRQ\LVRIIHUHGRQERWKVLGHVRIDQ
LVVXH 6HH 3LNHYLOOH 8QLWHG 0HWKRGLVW +RVS )G DW
%HIRUH .(,7+DQG'$8*+75(<&LUFXLWsXGJHV Q 7RQ\ 6FRWW 7UXFNLQJ )G DW
&$55'LVWULFWsXGJH
&RQVHTXHQWO\ GHVSLWH .DPWHFKjV FODLPV ZH GHFOLQH WR
RYHUWXUQVXFKFRQFOXVLRQV
BBBBBBBBBBBBBBBBB
,QDILQDODOOHJDWLRQRIHUURU.DPWHFKLQVLVWVWKDWWKH%RDUG
&2816(/ HUUHG LQ mUXEEHUVWDPSLQJl WKH DGPLQLVWUDWLYH ODZ MXGJHjV
FRQFOXVLRQ RI ODZ WKDW WKH FRPSDQ\ YLRODWHG WKH $FW E\
21 %5,() 0HUHGLWK / sDVRQ 1$7,21$/ /$%25 m>L@QIRUPLQJ HPSOR\HHV WKDW WKHLU DSSOLFDWLRQV IRU
5(/$7,216%2$5':DVKLQJWRQ'&IRU5HVSRQGHQW HPSOR\PHQWZRXOGQRWEHFRQVLGHUHGEHFDXVHRIWKHLUXQLRQ
(ULF.6PLWK/,77/(50(1'(/621$WODQWD*HRUJLD DIILOLDWLRQl$FFRUGLQJWRWKHUHVSRQGHQWWKHDGPLQLVWUDWLYH
IRU3HWLWLRQHU0LFKDHOs6WDSS%/$.( 8+/,*.DQVDV ODZ MXGJH mIDLOHG WR LGHQWLI\ WKH HYLGHQFH XSRQ ZKLFK KH
&LW\.DQVDVIRU,QWHUYHQRU EDVHG KLV FRQFOXVLRQ DQG GLG QRW DGGUHVV WKLV DOOHJDWLRQ
DQ\ZKHUHLQKLVGHFLVLRQl
BBBBBBBBBBBBBBBBB
&RQWUDU\ WR .DPWHFKjV DVVHUWLRQ KRZHYHU WKH
23,1,21 DGPLQLVWUDWLYHODZMXGJHGLGLQGHHGGLVFXVVWKHEDVLVIRUWKLV
BBBBBBBBBBBBBBBBB ILQGLQJDQGFRQFOXVLRQ7KHUHIHUHQFHWR.DPWHFKjVDFWRI
LQIRUPLQJ HPSOR\HHV WKDW SHUVRQV ZLWK XQLRQ RUJDQL]LQJ
0$57+$ &5$,* '$8*+75(< &LUFXLW sXGJH 7KH FUHGHQWLDOVZRXOGQRWEHFRQVLGHUHGIRUHPSOR\PHQWFOHDUO\
SHWLWLRQHULQWKLVGLVSXWH.DPWHFK,QFVHHNVUHYLHZRIDQ UHIHUVWRWKHFRPPHQWVPDGHE\IRUHPDQ2NLH/DFH\WR5LFN\
RUGHU RI WKH 1DWLRQDO /DERU 5HODWLRQV %RDUG GLUHFWLQJ &R[LQ+DZHVYLOOHFRPPHQWVGLVFXVVHGE\WKHDGPLQLVWUDWLYH
.DPWHFKWRUHIUDLQIURPQXPHURXVDFWVIRXQGWRKDYHEHHQ ODZMXGJHDWOHQJWKLQKLVGHFLVLRQ)XUWKHUPRUHDOWKRXJKWKH
FRPPLWWHG LQ YLRODWLRQ RI WKH SURYLVLRQV RI WKH 1DWLRQDO FRPSDQ\DUJXHVWKDW&R[jVWHVWLPRQ\LQWKLVUHJDUGVKRXOG
/DERU5HODWLRQV$FW 86&WRUHLQVWDWHRQH QRW EH EHOLHYHG WKH DGPLQLVWUDWLYH ODZ MXGJH ZDV DJDLQ
HPSOR\HH WHUPLQDWHG IURP WKH FRPSDQ\ DQG WR RIIHU D SODFHG LQ D SRVLWLRQ RI PDNLQJ D GHWHUPLQDWLRQ RI WKH
ZHOGLQJWHVWWRDQRWKHUIRUPHUHPSOR\HH7KH%RDUGKDVILOHG FUHGLELOLW\RIWKHZLWQHVVHVDQGFKRVHWRILQGWKDW&R[ZDVQRW
DFURVVDSSOLFDWLRQVHHNLQJHQIRUFHPHQWRILWVRUGHU)RUWKH O\LQJLQPDNLQJWKHVWDWHPHQWVFUHGLWHGE\WKHILQGHURIIDFW
UHDVRQVVHWRXWEHORZZHRUGHUHQIRUFHPHQWRIWKH%RDUGjV
RUGHU &21&/86,21
)RUWKHUHDVRQVVHWRXWDERYHZHFRQFOXGHWKDWVXEVWDQWLDO
HYLGHQFHVXSSRUWVWKH%RDUGjVILQGLQJVDQGWKDWWKH%RDUGjV
UHTXHVWIRUHQIRUFHPHQWRILWVRUGHUPXVWEH*5$17(':H
IXUWKHUFRQFOXGHWKDW.DPWHFKjVSHWLWLRQIRUUHYLHZPXVWEH
'(1,('
7KLV GHFLVLRQ ZDV RULJLQDOO\ LVVXHG DV DQ mXQSXEOLVKHG GHFLVLRQl
ILOHG RQ 6HSWHPEHU 2Q 'HFHPEHU WKH FRXUW GHVLJQDWHG
WKH RSLQLRQ DV RQH UHFRPPHQGHG IRU IXOOWH[W SXEOLFDWLRQ
7KH +RQRUDEOH sDPHV * &DUU 8QLWHG 6WDWHV 'LVWULFW sXGJH IRU WKH
1RUWKHUQ 'LVWULFW RI 2KLR VLWWLQJ E\ GHVLJQDWLRQ
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
FDXVHG E\ VXFK HPSOR\HH GLVREHGLHQFH .DPWHFK IDLOV WR )$&78$/$1'352&('85$/%$&.*5281'
UHFRJQL]HKRZHYHUWKDWLWVRZQDQWLXQLRQDFWLYLWLHVFDXVHG
WKHmLQVXERUGLQDWLRQlDQGWKDWWKHDGPLQLVWUDWLYHODZMXGJH )URP$XJXVW WKURXJK$SULO .DPWHFKD1HZ
UHDVRQDEO\LQIHUUHGWKDW5RXQWUHHZDVWUHDWHGGLIIHUHQWO\WKDQ <RUN UHVLGHQWLDO LQGXVWULDO DQG FRPPHUFLDO FRQVWUXFWLRQ
RWKHUHPSOR\HHVVROHO\EHFDXVHRIKLVXQLRQVWDWXV FRPSDQ\ ZDV HQJDJHG LQ SURMHFWV LQ 2ZHQVERUR DQG
+DZHVYLOOH .HQWXFN\ %\ 0D\ WKH ,QWHUQDWLRQDO
%URZQLQJFKRVH5RXQWUHHIRUWKHSDUWLFXODUWDVNLQTXHVWLRQ %URWKHUKRRGRI%RLOHUPDNHUV,URQ6KLS%XLOGHUV%ODFNVPLWK
RQO\ DIWHU SUHPDWXUHO\ HQGLQJ D EUHDN SHULRG DW ZKLFK )RUJHUV DQG +HOSHUV $)/&,2 KDG GHFLGHG WKDW LW ZRXOG
SHUPLVVLEOHXQLRQVROLFLWDWLRQZDVRFFXUULQJ0RUHRYHUWKH DWWHPSW WR RUJDQL]H WKH .DPWHFK MREV DQG WKXV GLVSDWFKHG
LQIODPPDWRU\ FRPPHQW m,jYH MXVW JRW WKH MRE IRU \RXU XQLRQZRUNHUVWRWKH.DPWHFKVLWHVWREHJLQWKHSURFHVVIURP
LQVWLJDWLQJ DVVl SURYLGHV FUXFLDO LQVLJKW LQWR %URZQLQJjV ZLWKLQWKHSODQWV
PRWLYDWLRQ LQ DVVLJQLQJ WKH SHUFHLYHG GDQJHURXV WDVN
3RVVLEO\ PRVW LQGLFDWLYH RI WKH FRPSDQ\jV PLQGVHW LQ WKH 6RPHWLPH LQ ODWH 0D\ WZR XQLRQ ZHOGHUV sDPHV
HQWLUH LQFLGHQW LV WKH PDQQHU LQ ZKLFK WKH SURMHFW ZDV m0LWFKl'RWVRQDQG5REHUW<RXQJYLVLWHGWKH2ZHQVERUR
XOWLPDWHO\FRPSOHWHGDIWHU%URZQLQJLQVLVWHGWKDW5RXQWUHH VLWHDQGLQIRUPHGWKHSLSLQJVXSHULQWHQGHQWWKDWWKH\ZLVKHG
SHUIRUPWKHMRELPPHGLDWHO\DQGE\XVLQJRQO\DQDYDLODEOH WRDSSO\IRUZHOGLQJMREV$OWKRXJKWKHPHQZHUHWROGDWWKDW
ODGGHU $IWHU WKH HPSOR\HH ZLWK XQLRQ DIILOLDWLRQV ZDV WLPHWKDWQRVXFKSRVLWLRQVZHUHWKHQRSHQ'RWVRQUHFHLYHG
WHUPLQDWHG%URZQLQJGLGQRWGLUHFWWKDWDQRWKHULQGLYLGXDO DFDOOLQHDUO\sXQHWRUHWXUQWRWKHZRUNVLWHEHFDXVH.DPWHFK
XQGHUWDNHWKHmUXVKlMREDWWKDWWLPH5DWKHUDOOWHVWLPRQ\ ZDVDJDLQKLULQJZHOGHUV%RWK'RWVRQDQG<RXQJUHVSRQGHG
EHIRUHWKHDGPLQLVWUDWLYHODZMXGJHSRLQWVWRWKHIDFWWKDWWKH WRWKHUHTXHVWDQGZHUHXOWLPDWHO\JLYHQZHOGLQJWHVWVE\RQH
WDVNZDVQRWFRPSOHWHGIRUDQRWKHUGD\RUWZRDQGWKDWZKHQ RI.DPWHFKjVTXDOLW\FRQWURODJHQWV:LOPHU6HOOHUV'RWVRQ
SHUIRUPHGWKHZHOGHUZDVSHUPLWWHGWRXVHVFDIIROGLQJVRDV FRPSOHWHG KLV WHVW ZHOG LQ DSSUR[LPDWHO\ PLQXWHV
WRFRPSOHWHWKHMRELQDVDIHPDQQHU7KXVLWLVQRWPHUHO\ LQVSHFWHGKLVZRUNZLWKDIODVKOLJKWDQGWHOHVFRSLFPLUURUDQG
WKH WHUPLQDWLRQ RI DQ HPSOR\HH IRU LQVXERUGLQDWLRQ WKDW SURFODLPHG KLV ZHOG mSHUIHFWl <RXQJ DOVR LQVSHFWHG
UHVXOWHGLQWKHILQGLQJRIDODERUODZYLRODWLRQLQWKLVPDWWHU 'RWVRQjVZRUNDQGEDVHGXSRQ<RXQJjVDSSUR[LPDWHO\
,QVWHDGRQFHDJDLQLWLV.DPWHFKjVNQRZLQJDQGFRQVFLRXV \HDUVRIH[SHULHQFHDVDZHOGHUVWDWHGWKDWKHVDZQRWKLQJ
GHFLVLRQ WR WUHDW XQLRQ VXSSRUWHUV DPRQJ LWV HPSOR\HHV ZURQJZLWKWKHWHVWZHOGGRQHE\KLVFRDSSOLFDQW
GLIIHUHQWO\ WKDQ RWKHU ZRUNHUV WKDW WKH DGPLQLVWUDWLYH ODZ
MXGJH DQG WKH %RDUG IRXQG XQODZIXO 8QGHU WKHVH :KHQ 6HOOHUV ZDV VXPPRQHG WR LQVSHFW WKH mWHVWl WKH
FLUFXPVWDQFHVWKH%RDUGGLGQRWHUULQRUGHULQJWKDW5RXQWUHH .DPWHFKDJHQWILUVWORRNHGDWWKHZHOGLQJMREIRUDOPRVWD
UHFHLYHWKHDSSURSULDWHUHOLHIIRUWKHLOOHJDODFWVSHUIRUPHGE\ PLQXWH+HWKHQLQTXLUHGZKHWKHU'RWVRQKDGEHHQZHOGLQJ
.DPWHFKRIILFLDOVDJDLQVWKLP ERLOHU WXEHV DQG DIWHU UHFHLYLQJ DQ DIILUPDWLYH UHVSRQVH
DVNHGEOXQWO\m$UH\jDOOXQLRQ"l:KHQ'RWVRQUHSOLHGWKDW
.DPWHFK QH[W WDNHV LVVXH ZLWK WKH FUHGLELOLW\ KHZDVLQGHHGDXQLRQPHPEHU6HOOHUVUHH[DPLQHGWKHWHVW
GHWHUPLQDWLRQV PDGH E\ WKH DGPLQLVWUDWLYH ODZ MXGJH LQ ZHOGSRLQWHGRXWDQXPEHURIIODZVWKDWKHEXWQRW'RWVRQ
UHJDUGWRWKHDOOHJHGLQWHUURJDWLRQRIZHOGHUV0LWFK'RWVRQ VDZDQGLQIRUPHGWKHDSSOLFDQWWKDWKHKDGIDLOHGWKHWHVW
DQG5REHUW<RXQJFRQFHUQLQJWKHLUXQLRQDIILOLDWLRQDQGLQ
UHJDUG WR VWDWHPHQWV PDGH WR 0LFKDHO &RUQHOO DERXW WKH 6LPLODUO\DIWHU<RXQJFRPSOHWHGKLVWHVWZHOGERWKKHDQG
IXWLOLW\RIXQLRQPHPEHUVKLS$VZHSUHYLRXVO\REVHUYHGZH 'RWVRQSHUXVHGWKHZRUNDQGIRXQGQRGHIHFWLQLW$JDLQ
DUH XQLTXHO\ XQVXLWHG WR SDVV XSRQ WKH OHJLWLPDF\ RI VXFK KRZHYHU6HOOHUVVWDWHGWKDWWKHYHWHUDQZHOGHUKDGIDLOHGWKH
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
WHVWWKLVWLPHDIWHUH[DPLQLQJWKHDSSOLFDQWjVZRUNIRURQO\D FRPSDQ\ZDVWKHUHVXOWRILOOHJDODQWLXQLRQDQLPXV$VZH
IHZVHFRQGV<RXQJZKRWHVWLILHGWRWKHQXPHURXVZHOGLQJ KDYHMXVWUHFHQWO\VXPPDUL]HG
FHUWLILFDWLRQVKHKDGUHFHLYHGRYHUKLVQHDUO\TXDUWHUFHQWXU\
LQ WKH SURIHVVLRQ H[SUHVVHG KLV VXUSULVH DW WKH UHVXOWV ,Q GHWHUPLQLQJ ZKHWKHU DQ HPSOR\HU KDV XQODZIXOO\
HVSHFLDOO\JLYHQWKHIDFWWKDWKHUHFDOOHGIDLOLQJRQO\RQHRWKHU WHUPLQDWHGRUODLGRIIDQHPSOR\HHRQWKHEDVLVRIDQWL
ZHOGLQJWHVWRIWKHPRUHWKDQKHKDGWDNHQRYHUWKH\HDUV XQLRQDQLPXVWKLV&RXUWDSSOLHVWKHWHVWHQXQFLDWHGLQ
:ULJKW /LQH Y 1/5% 1/5% 6HH
$IWHU'RWVRQjVDQG<RXQJjVH[SHULHQFHVZLWK.DPWHFKWKH 1/5% Y 7UDQVS 0JPW &RUS 86
XQLRQVWHSSHGXSLWVRUJDQL]LQJDFWLYLWLHVDQGDWDPHHWLQJRQ DGRSWLQJWKH:ULJKW/LQHWHVW 8QGHU:ULJKW/LQHWKH
sXQH IRUPHG D FRPPLWWHH RI .DPWHFK 1/5%jV*HQHUDO&RXQVHOPXVWHVWDEOLVKDSULPDIDFLH
HPSOR\HHVLQFOXGLQJ0LFKDHO&RUQHOODQG0DUN5RXQWUHH FDVH RI GLVFULPLQDWLRQ E\ VHWWLQJ IRUWK HYLGHQFH WKDW
ZKRDJUHHGWRGLVWULEXWHXQLRQFDUGVDQGVROLFLWIRUWKHODERU VXSSRUWV DQ LQIHUHQFH WKDW WKH HPSOR\HHjV SURWHFWHG
RUJDQL]DWLRQ $W ZRUN RQ sXQH SULRU WR WKH PHHWLQJ DFWLYLWLHV ZHUH D PRWLYDWLQJ IDFWRU LQ WKH HPSOR\HUjV
5RXQWUHHGLVFXVVHGWKHSODQVIRUWKDWHYHQLQJjVJDWKHULQJZLWK GHFLVLRQ ,Q SDUWLFXODU WKH *HQHUDO &RXQVHO PXVW
DQXPEHURIIHOORZHPSOR\HHV&RLQFLGHQWDOO\RQWKDWVDPH GHPRQVWUDWH WKDW WKH HPSOR\HH ZDV HQJDJHG LQ
GD\5RXQWUHHZDVVHOHFWHGIRURQHRIWKHFRPSDQ\jVUDQGRP SURWHFWHG DFWLYLW\ WKDW WKH HPSOR\HU NQHZ RI WKH
GUXJ WHVWV D SURFHGXUH WKDW XVXDOO\ WRRN DSSUR[LPDWHO\ HPSOR\HHjVSURWHFWHGDFWLYLW\ DQG WKDWWKHHPSOR\HU
PLQXWHV$FFRUGLQJWR5RXQWUHHKRZHYHURQsXQHKLV DFWHGDVLWGLGRQWKHEDVLVRIDQWLXQLRQDQLPXV1/5%
WHVWWRRNmZHOORYHUWZRKRXUVlEHFDXVHKHZDVILUVWDVNHGWR Y*HQ)DEULFDWLRQV&RUS)G WK&LU
DFFRPSDQ\ WKH VDIHW\ RIILFHU DV KH URXQGHG XS WKH RWKHU TXRWLQJ,77$XWRY1/5%)G
LQGLYLGXDOVWREHWHVWHGDQGWKHQEHFDXVHXSRQDUULYLQJDWWKH WK&LU $VWRWKLVWKLUGSURQJZHKDYHKHOGWKDW
WHVWLQJWUDLOHUKHIRXQGWKDWWKHQXUVHKDGJRQHLQWRWRZQZLWK HYLGHQFH RI DQ HPSOR\HUjV DQWLXQLRQ DQLPXV FDQ EH
DQRWKHUHPSOR\HHZKRKDGVXIIHUHGDQH\HLQMXU\RQWKHMRE SXUHO\FLUFXPVWDQWLDODQGWKDWPDQ\IDFWVFDQFRQWULEXWH
WR D ILQGLQJ RI DQ DQWLXQLRQ PRWLYH 2QFH WKH
:KHQ5RXQWUHHILQDOO\UHWXUQHGWRKLVSRVWDIWHUJLYLQJD *HQHUDO&RXQVHOKDVPDGHRXWDSULPDIDFLHFDVHRIDQWL
XULQH VDPSOH KH ZDV DSSURDFKHG E\ KLV IRUHPDQ %RE XQLRQDQLPXVmWKHEXUGHQVKLIWVWRWKHHPSOR\HUWRSURYH
%URZQLQJZKRSURFHHGHGWRZULWHXSDGLVFLSOLQDU\QRWLFHIRU E\DSUHSRQGHUDQFHRIWKHHYLGHQFHWKDWLWZRXOGKDYH
mDORVVRISURGXFWLRQDQGEHLQJDZD\IURP>WKH@ZRUNDUHD WDNHQWKHVDPHDFWLRQHYHQLQWKHDEVHQFHRISURWHFWHG
HQWLUHO\WRRORQJl:KHQ5RXQWUHHSURWHVWHGDQGDWWHPSWHG FRQGXFWl1/5%Y*HQ6HUYV&RUS)G
WRH[SODLQWKHH[WHQXDWLQJFLUFXPVWDQFHVWKDWOHGWRWKHGHOD\ WK&LU
LQUHWXUQLQJWRZRUN%URZQLQJSURFODLPHGWKDWmWKHZDOOV
KDYH HDUVl DQG WKDW 5RXQWUHH mEHWWHU ZDWFK >KLV@ VWHS DQG )LYH&$3,QFY1/5% )G WK&LU
ZKDW>KH@JHW>V@LQYROYHGLQl
,QVLIWLQJWKURXJKWKHVHVKLIWLQJEXUGHQVWKHFRPSDQ\DJDLQ
7KHIROORZLQJGD\sXQH XQLRQRUJDQL]HU(XJHQH PLVFRQVWUXHVWKHLQWHUSOD\EHWZHHQRXUQDWLRQjVODERUODZV
)RUNLQ GHOLYHUHG D OHWWHU FRQWDLQLQJ WKH QDPHV RI WKH DQGGDLO\EXVLQHVVRSHUDWLRQV)RULQVWDQFH.DPWHFKDUJXHV
YROXQWHHU XQLRQ RUJDQL]HUV DW WKH 2ZHQVERUR SURMHFWV WR WKDW 5RXQWUHH ZRXOG KDYH EHHQ GLVFKDUJHG IRU KLV
.DPWHFKjV SLSLQJ VXSHULQWHQGHQW sRKQ :HEVWHU LQVXERUGLQDWLRQDQGUHIXVLQJWRSHUIRUPDQDVVLJQHGWDVNHYHQ
,PPHGLDWHO\DIWHUGHOLYHU\RIWKHOHWWHUQXPHURXV.DPWHFK KDGKHQRWEHHQDYROXQWHHUXQLRQRUJDQL]HU,QVXSSRUWRILWV
HPSOR\HHV EHJDQ GLVSOD\LQJ XQLRQ VWLFNHUV DQG RWKHU SRVLWLRQ WKH FRPSDQ\ WKHQ SRLQWV WR RWKHU WHUPLQDWLRQV
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
RIRQHZLWQHVVRUWKHRWKHUDQGKHREYLRXVO\FKRVHWREHOLHYH SDUDSKHUQDOLDRQWKHLUKDWVDQGRWKHUFORWKLQJ5RXQWUHHRQH
5RXQWUHHDFUHGLELOLW\GHWHUPLQDWLRQWKDWLVQRZHIIHFWLYHO\ RIWKHRUJDQL]HUVDOVREURXJKWXQLRQOLWHUDWXUHZLWKKLPWR
LQVXODWHGIURPUHYLHZRQDSSHDO ZRUNWKDWGD\DQGSODFHGLWRQKLVOXQFKER[LQWKHHPSOR\HH
EUHDN URRP :KLOH ZRUNLQJ RQ D SLSH UDFN LQ WKDW DUHD
.DPWHFKIXUWKHUDVVHUWVWKDWQRXQIDLUODERUSUDFWLFHFDQEH 5RXQWUHHVDZ%URZQLQJZKRKDGEHHQmKRXQGGRJJLQJlKLP
IRXQGKHUHEHFDXVHWKHFRPSDQ\DOVRURXWLQHO\GLVFLSOLQHG WKHHQWLUHGD\NLFNWKHXQLRQLQIRUPDWLRQRIIWKHOXQFKER[
RWKHU ZRUNHUV IRU WDUGLQHVV LQ UHWXUQLQJ WR WKH MRE
1HYHUWKHOHVV WKH FLUFXPVWDQFHV LQ WKLV FDVH MXVWLI\ WKH 'XULQJ5RXQWUHHjVILUVWEUHDNRQsXQH KH GLVWULEXWHG
LQIHUHQFH GUDZQ E\ WKH DGPLQLVWUDWLYH ODZ MXGJH WKDW WKH VRPHRIWKHXQLRQPDWHULDOVWRRWKHUHPSOR\HHV(YHQWXDOO\
FRPSDQ\jVDFWLRQVGLGLQGHHGFRQVWLWXWHDYLRODWLRQRIODERU KRZHYHU %URZQLQJ MRLQHG WKH JURXS FRQILVFDWHG WKH
ODZSULQFLSOHV)LUVW%URZQLQJLPSRVHGWKHGLVFLSOLQHXSRQ DXWKRUL]DWLRQFDUGVDQGDQQRXQFHGWKDWmLWjVWLPHWRJREDFN
5RXQWUHHZLWKRXWHYHQERWKHULQJWRFKHFNZKDWZHUHFOHDUO\ WRZRUNo\RXNQRZ\RXRQO\JHWILYHPLQXWHEUHDNVl
DVFHUWDLQDEOHIDFWV$VLPSOHSKRQHFDOOWRWKHQXUVHDWWKH 5RXQWUHHEHJDQWRH[SODLQWKDWWKHHPSOR\HHVDOZD\VUHFHLYHG
GUXJ WHVWLQJ ORFDWLRQ FRXOG KDYH HVWDEOLVKHG GHILQLWLYHO\ WHQPLQXWHEUHDNVDQGWKDWWKHUHVWSHULRGKDGMXVWEHJXQSULRU
ZKHWKHU5RXQWUHHZDVZDLWLQJSDWLHQWO\IRUWKHOHQJWKRIWLPH WR%URZQLQJjVHQWUDQFH$WWKDWSRLQWWKHIRUHPDQH[SODLQHG
KH FODLPHG WR KDYH EHHQ DVNHG WR UHPDLQ DZD\ IURP KLV WKDWWKHFRPSDQ\KDGREYLRXVO\EHHQWRRNLQGWRWKHZRUNHUV
HPSOR\PHQW GXWLHV ,Q WKH DEVHQFH RI DQ\ HYLGHQFH WKDW DQGWKHQVWDWHGWR5RXQWUHHm,jYHMXVWJRWWKHMREIRU\RXU
DQ\RQHFRQQHFWHGZLWKWKHFRPSDQ\PDGHVXFKDSKRQHFDOO LQVWLJDWLQJDVVl
LWLVFOHDUO\QRWXQUHDVRQDEOHIRUWKHDGPLQLVWUDWLYHODZMXGJH
WRKDYHFUHGLWHGWKHWHVWLPRQ\RI0DUN5RXQWUHHWKHRQO\ %URZQLQJOHG5RXQWUHHWRDQDUHDRI WKH SODQWZKHUHKH
RWKHUZLWQHVVZKRKDGDFWXDOO\EHHQLQYROYHGLQWKHHQWLUH GLUHFWHG WKH HPSOR\HH WR SHUIRUP D ZHOGLQJ MRE
GUXJWHVWLQJSURFHVV DSSUR[LPDWHO\IHHWLQWKHDLULQWKHYLFLQLW\RIDFRQFUHWH
VTXDUHFROXPQZLWKDGURSRIWRIHHWRQWKHRWKHUVLGH
6HFRQGRWKHUHOHPHQWVRI5RXQWUHHjVWHVWLPRQ\EHIRUHWKH RIDQDGMDFHQWWZRIRRWKLJKZDOO5RXQWUHHDIWHUDVVHVVLQJ
DGPLQLVWUDWLYH ODZ MXGJH HYLGHQFHG WKH DQWLXQLRQ ELDV RI WKH MRE H[SODLQHG WKDW KH ZRXOG QHHG HLWKHU D OLIW RU
%URZQLQJ DQG RWKHU .DPWHFK RIILFLDOV $FFRUGLQJ WR VFDIIROGLQJ WR FRPSOHWH WKH ZHOGLQJ VDIHO\ %URZQLQJ
5RXQWUHH KLV LQTXLULHV DERXW WKH QHFHVVLW\ RI VXFK D LQVLVWHGKRZHYHUWKDWWKHMREEHGRQHLPPHGLDWHO\ZLWKRXW
UHSULPDQGZHUHPHWVLPSO\E\%URZQLQJjVVWDWHPHQWVWKDW DQ\VXFKHTXLSPHQWWKDWPLJKWGHOD\WKHSURMHFWjVFRPSOHWLRQ
mZDOOVKDYHHDUVlDQGWKDW5RXQWUHHKDGmEHWWHUZDWFK>KLV@ DQGVXJJHVWHGWKDWWKHZHOGHUPDNHXVHRIDQH[WHQVLRQODGGHU
VWHS DQG ZKDW >KH@ JHW>V@ LQYROYHG LQl 6XFK DQ XQYHLOHG WKDWZDVQHDUE\5RXQWUHHDJDLQEDONHGDWWKHVXJJHVWLRQ
UHIHUHQFH WR WKH GDQJHU RI HQJDJLQJ LQ XQLRQ RUJDQL]LQJ QRWLQJWKDWWKHORJLVWLFVRIWKHMREZRXOGUHTXLUHZHOGLQJZLWK
DFWLYLWLHVWKXVVXSSRUWVWKH%RDUGjVLQIHUHQFHWKDWFRQWUDU\WR KHDY\ HTXLSPHQW LQ MXVW RQH KDQG DQG UHTXHVWHG D
%URZQLQJjVRZQWHVWLPRQ\.DPWHFKjVHIIRUWVWRGLVFLSOLQH FRQVXOWDWLRQZLWK'DYLG)UHZWKHFRPSDQ\jVVDIHW\RIILFHU
5RXQWUHH D NQRZQ RUJDQL]HU IRU WKH XQLRQjV FDXVH ZHUH
LPSURSHUO\PRWLYDWHGLQYLRODWLRQRIWKHUHOHYDQWSURYLVLRQV $OWKRXJK )UHZ LQLWLDOO\ DJUHHG ZLWK 5RXQWUHH WKDW WKH
RIWKH1DWLRQDO/DERU5HODWLRQV$FW SURSRVHG SODQ RI DFWLRQ GLG QRW DSSHDU WR EH VDIH KH ODWHU
FKDQJHGKLVPLQGDIWHUFRQYHUVLQJZLWK%URZQLQJDQGsRKQ
)LQDOO\.DPWHFKFRQWHQGVWKDWWKH%RDUGFDQQRWVKRZWKDW :HEVWHUZKRKDGDOVREHHQVXPPRQHGWRWKHVLWH:KLOH
5RXQWUHHjV DFWXDO GLVFKDUJH IURP HPSOR\PHQW ZLWK WKH %URZQLQJ:HEVWHUDQG)UHZZHUHWDONLQJ5RXQWUHHQRWLFHG
LQ:HEVWHUjVKDQGVWKHOHWWHUWKHVXSHULQWHQGHQWKDGUHFHLYHG
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
HDUOLHULQWKHGD\ZLWKWKHOLVWRIXQLRQRUJDQL]HUV5RXQWUHH DW ZRUN E\ SP QRW WKH SP KRXU DW ZKLFK
DOVRRYHUKHDUG:HEVWHUFRPPHQWm,ZDQWWRJHWULGRIKLPl %URZQLQJ ZURWH 5RXQWUHH XS IRU PLVVLQJ ZRUN WLPH
&RQVHTXHQWO\ DVVHUWV .DPWHFK RQ DSSHDO WKHUH LV QR
%URZQLQJWKHQDJDLQLQVLVWHGWKDW5RXQWUHHFRPSOHWHWKH WHVWLPRQ\LQVXSSRUWRI5RXQWUHHjVYHUVLRQRIWKHHYHQWVRI
WDVNXVLQJRQO\DQH[WHQVLRQODGGHUDQGQRWDVFDIIROGRUDOLIW sXQH DQG WKH DGPLQLVWUDWLYH ODZ MXGJHjV DQG %RDUGjV
:KHQ 5RXQWUHH FRQWLQXHG WR TXHVWLRQ WKH VDIHW\ RI WKH FUHGLWLQJRIVXFKmQRQHYLGHQFHlLVWKHUHIRUHLPSURSHU
SURSRVHGDVVLJQPHQW%URZQLQJDVNHGGLUHFWO\ZKHWKHUWKH
HPSOR\HHLQWHQGHGWRXQGHUWDNHWKHMRE5RXQWUHHUHVSRQGHG 'HVSLWH WKH FRPSDQ\jV YLHZ RI WKH HYLGHQFH WKH UHFRUG
WKDW VXFK D VFHQDULR ZDV mQRW OLNHO\l DQG %URZQLQJ EHIRUHXVFDQEHUHDGWRVXSSRUW5RXQWUHHjVDFFRXQWRIZKDW
LPPHGLDWHO\ILUHG5RXQWUHHIRULQVXERUGLQDWLRQDQGIDLOXUHWR RFFXUUHGRQsXQH.DPWHFKQRZLQVLVWVWKDWWKHZULWHXS
FRPSOHWHDQDVVLJQHGWDVN$VWKHWZRPHQZHUHZDONLQJWR RFFXUUHGLPPHGLDWHO\XSRQ5RXQWUHHjVUHWXUQWRKLVVWDWLRQ
WKHZDUHKRXVHWRFRPSOHWHWKHVHYHUDQFHIRUPV%URZQLQJ DQGEHFDXVHWKHZULWHXSZDVQRWXQGHUWDNHQXQWLO SP
FRPPHQWHGWR5RXQWUHHm,ZDUQHG\RXDERXWWKLV LWGLGQjW 5RXQWUHHPXVWKDYHEHHQDZD\IURPKLVMREEHWZHHQDWOHDVW
KDYHWREHWKLVZD\DQG\RXVKRXOGKDYHMXVWVWD\HGRXWRIWKLV QRRQDQGWKHWLPHRIWKHGLVFLSOLQDU\DFWLRQ1RVXFKVWULFW
VKLWl LQWHUSUHWDWLRQRIWKHWHVWLPRQ\LVPDQGDWHGKRZHYHU
'HVSLWH%URZQLQJjVLQVLVWHQFHXSRQLPPHGLDWHFRPSOHWLRQ 1HLWKHUSDUW\GLVSXWHVWKDWWKHSDSHUZRUNLQYROYHGLQWKH
RIWKHZHOGLQJMREWKHDVVLJQHGWDVNZDVQRWSHUIRUPHGIRUD GLVFLSOLQDU\ DFWLRQ ZDV FRPSOHWHG E\ %URZQLQJ DW
FRXSOHRIGD\VDIWHU5RXQWUHHjVWHUPLQDWLRQ0RUHRYHUZKHQ DSSUR[LPDWHO\ SP RQ sXQH 7KH IDFWXDO
WKH MRE ZDV ILQDOO\ DWWHPSWHG WKH ZHOGHU WDFNOLQJ LW ZDV GLVDJUHHPHQWLQVWHDGFHQWHUVRQO\DURXQGKRZORQJDQGIRU
DOORZHGWRXVHVFDIIROGLQJWRDVVLVWLQWKHSHUIRUPDQFHRIWKH ZKDWUHDVRQV5RXQWUHHZDVDFWXDOO\DZD\IURPZRUNEHIRUH
SURFHGXUH WKDWWLPH$OWKRXJK.DPWHFKLVHDJHUWRSRLQWWRHYLGHQFH
WKDWWKHHPSOR\HHZDVZULWWHQXSLPPHGLDWHO\XSRQKLVUHWXUQ
$IWHUWKHSDVVDJHRIGD\VIURPKLVWHUPLQDWLRQ5RXQWUHH WR WKH SODQW HYHQ %URZQLQJ KLPVHOI FRQFXUUHG ZLWK
WULHGWRREWDLQDQRWKHUMREZLWK.DPWHFKDWLWVSURMHFWVLWHLQ 5RXQWUHHjVWHVWLPRQ\WKDWWKHHPSOR\HHZDVDEVHQWIRURQO\
+DZHVYLOOH.HQWXFN\EXWWKHKLULQJRIILFLDOVDWWKDWORFDWLRQ DERXWWZRKRXUV6XFKDVFHQDULRLVHQWLUHO\FRQVLVWHQWZLWK
QHYHU UHVSRQGHG WR KLV LQTXLULHV 5LFN\ &R[ KLPVHOI D 5RXQWUHHjV WHVWLPRQ\ WKDW KH ZDV DZD\ IURP WKH MRE ILUVW
.DPWHFK HPSOR\HH ZKR KDG EHHQ ILUHG IRU XQVDWLVIDFWRU\ ZKLOH KH DFFRPSDQLHG )UHZ DV WKH VDIHW\ RIILFHU JDWKHUHG
ZRUNWHVWLILHGEHIRUHWKHDGPLQLVWUDWLYHODZMXGJHWKDW2NLH RWKHUWHVWSDUWLFLSDQWVDQGWKHQZKLOH5RXQWUHHZDLWHGIRUWKH
/DFH\.DPWHFKjVIRUHPDQDW+DZHVYLOOHKDGVWDWHGWRKLP QXUVHWRUHWXUQIURPWRZQZKHUHVKHKDGWDNHQDQLQMXUHGFR
WKDWKHFRXOGQjWKLUH5RXQWUHHDWWKH+DZHVYLOOHZRUNVLWH ZRUNHU)XUWKHUPRUHHYHQ.DPWHFKGRFXPHQWVLQGLFDWHWKDW
GHVSLWHWKHQHHGIRUH[SHULHQFHGZHOGHUVEHFDXVH5RXQWUHH 5RXQWUHHZDVLQGHHGGUXJWHVWHGRQsXQH $OWKRXJK
KDGmVWDUWHGVRPHXQLRQSUREOHPVRXWDW>2ZHQVERUR@WU\LQJ 5RXQWUHHjV QDPH P\VWHULRXVO\ GLG QRW DSSHDU RQ WKH GUXJ
WRRUJDQL]HWKHXQLRQl WHVWLQJVLJQLQORJWKHODWHVWOLVWHGVLJQLQWLPHRQWKDWVKHHW
ZDV DP 7KXV XVLQJ HYHQ %URZQLQJjV WKUHHKRXU
0RUHRYHU5RXQWUHHZDVQRWWKHRQO\.DPWHFKHPSOR\HH HVWLPDWHRIWKHWLPH5RXQWUHHZDVDEVHQWIURPKLVSRVWKDG
ZKR WHVWLILHG WR LQVWDQFHV RI DQWLXQLRQ DQLPXV DW WKH WKH HPSOR\HH DSSHDUHG IRU WKH WHVW ZLWK RWKHU ZRUNHUV KH
2ZHQVERURDQG+DZHVYLOOHVLWHV7RQ\:D\QH+ROFRPED ZRXOGKDYHEHHQEDFNDWKLVMREE\ SPQRW SP
SLSHILWWHU VWDWHG WKDW DIWHU KH EHJDQ ZHDULQJ SURXQLRQ ,Q WKH IDFH RI VXFK DQ LUUHFRQFLODEOH IDFWXDO GLVSXWH WKH
VWLFNHUV WR ZRUN KH ZDV VXEMHFWHG WR KDUDVVPHQW IURP KLV DGPLQLVWUDWLYHODZMXGJHZDVUHTXLUHGWRFUHGLWWKHWHVWLPRQ\
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
DVD7,*ZHOGHU.DPWHFKLVFOHDUO\XQGHUQRFRPSXOVLRQWR IRUHPDQ sLPER +DEHU]HWWOH $FFRUGLQJ WR +ROFRPE
RIIHUKLPVXFKHPSOR\PHQW +DEHU]HWWOHUHIHUUHGWRKLPDVDmXQLRQSXQNlSODFHGDVLJQ
LQWKHEUHDNURRPVWDWLQJWKDWmXQLRQSXQNVHDWKHUHlDQG
,QDVHULHVRIFKDOOHQJHV.DPWHFKDOVRFRQWHQGVWKH%RDUG ODXJKHG ZLWK RWKHU SHRSOH DERXW RQH RI +ROFRPEjV
HUUHGLQXSKROGLQJWKHDGPLQLVWUDWLYHODZMXGJHjVFRQFOXVLRQV SD\FKHFNVGHULVLYHO\DQQRXQFLQJm/RRNZKDWWKHXQLRQSXQN
FRQFHUQLQJ DOOHJHG GLVFULPLQDWRU\ WUHDWPHQW VXIIHUHG E\ EURXJKWKRPHFHQWVl
ZHOGHU0DUN5RXQWUHH,QSDUWLFXODUWKHFRPSDQ\TXHVWLRQV
WKH%RDUGKROGLQJVWKDWIRUHPDQ%RE%URZQLQJFRPPLWWHG )LQDOO\ 0LFKDHO &RUQHOO WHVWLILHG WKDW KH VHUYHG ZLWKRXW
XQIDLUODERUSUDFWLFHVLQLQGLFDWLQJWKDWXQLRQDGYRFDWHVZHUH LQFLGHQW DV D .DPWHFK ZHOGHU XQGHU KLV IRUHPDQ &UDLJ
VXEMHFW WR VXUYHLOODQFH LQ VKRUWHQLQJ EUHDN SHULRGV LQ *DVWRQXQWLO&RUQHOOEHJDQWRZHDUXQLRQEXWWRQVDQGDIWHU
GLVFLSOLQLQJ5RXQWUHHIRUDQH[FHVVLYHO\OHQJWK\DEVHQFHIURP KLVQDPHDSSHDUHGRQWKHOHWWHUWRsRKQ:HEVWHU$IWHUWKDW
KLVMREDQGLQWHUPLQDWLQJ5RXQWUHHIRUUHIXVLQJWRSHUIRUP GDWHDVVHUWV&RUQHOO*DVWRQDSSURDFKHGKLPDQGDQQRXQFHG
DSDUWLFXODUZHOGLQJMRE:HFRQFOXGHKRZHYHUWKDWHDFKRI WKDWWKHHPSOR\HHjVXQLRQRUJDQL]LQJmLVQjWJRLQJWRGRDQ\
WKHVHFRQWHQWLRQVRIHUURUDUHZLWKRXWPHULW JRRGlDQGm>LV@DZDVWHRIWLPHl(YHQWXDOO\.DPWHFKODLG
&RUQHOO RII ZRUN DOWKRXJK WKH ZHOGHU ZDV RQH RI WKH ODVW
)LUVW .DPWHFKjV VROH DUJXPHQW LQ RSSRVLWLRQ WR WKH FUDIWVPDQWREHVRGLVSODFHGDQGQRVWUXFWXUDOZHOGLQJZDV
ILQGLQJVWKDW%URZQLQJLPSURSHUO\LPSDUWHGWR5RXQWUHHWKH SHUIRUPHGDWWKHVLWHDIWHU&RUQHOOjVGHSDUWXUH/DWHU&RUQHOO
LPSUHVVLRQWKDWXQLRQVXSSRUWHUVKDGEHHQPRQLWRUHGDQGWKDW DOVRFRQWDFWHG.DPWHFKjV+DZHVYLOOHZRUNVLWHDIWHUKHDULQJ
%URZQLQJVKRUWHQHGHPSOR\HHVjEUHDNWLPHVLQUHWDOLDWLRQIRU WKHFRPSDQ\ZDVVHHNLQJWRHPSOR\ZHOGHUVEXWWKHFRPSDQ\
XQLRQ RUJDQL]LQJ LV WKDW 5RXQWUHH VKRXOG QRW EH EHOLHYHG DOVRQHYHUUHWXUQHGKLVQXPHURXVWHOHSKRQHFDOOV
EHFDXVHRIKLVSDVWIHORQ\FRQYLFWLRQV7KHDGPLQLVWUDWLYH
ODZMXGJHKRZHYHUHYDOXDWHGWKHFUHGLELOLW\RIWKHYDULRXV 1RWVXUSULVLQJO\PDQDJHPHQWRIILFLDOVDW.DPWHFKUHIXWHG
ZLWQHVVHVEHIRUHKLP+LVXOWLPDWHGHWHUPLQDWLRQVFDQQRWEH DOODOOHJDWLRQVWKDWFRPSDQ\VXSHUYLVRUVKDUERUHGDQ\DQWL
GLVUHJDUGHG VLPSO\ EHFDXVH FRQWUDU\ HYLGHQFH ZDV DOVR XQLRQDQLPXV7KH\XQLIRUPO\GHQLHGPDNLQJDQ\GHURJDWRU\
SUHVHQWHGEXWGLVFUHGLWHG FRPPHQWVDERXWWKHXQLRQRUXQLRQVXSSRUWHUVDQGLQVLVWHG
VWUHQXRXVO\WKDWWKHXQLRQDFWLYLVWVZKRZHUHGLVFKDUJHGRU
6HFRQG WKH FRPSDQ\ LQVLVWV WKDW WKH DGPLQLVWUDWLYH ODZ ODLGRIIIURPWKH.HQWXFN\ZRUNVLWHVZHUHOHWJRRQO\IRU
MXGJHjV FRQFOXVLRQV FRQFHUQLQJ WKH GLVFLSOLQDU\ ZULWHXS OHJLWLPDWHEXVLQHVVDQGGLVFLSOLQDU\UHDVRQV
5RXQWUHHUHFHLYHGIRUEHLQJDZD\IURPKLVZRUNVWDWLRQIRUDQ
H[WHQGHGSHULRGRIWLPHQHHGQRWEHUHVSHFWHGEHFDXVHWKH )DFHGZLWKGLDPHWULFDOO\RSSRVHGDFFRXQWVRIWKHDFWLYLWLHV
HYLGHQFHRIIHUHGE\WKH*HQHUDO&RXQVHOIRUWKH%RDUGDQG LQYROYLQJ.DPWHFKLQ2ZHQVERURDQG+DZHVYLOOHLQWKHODWH
FUHGLWHG E\ WKH DGPLQLVWUDWLYH ODZ MXGJH ZDV IDFWXDOO\ VSULQJ DQG HDUO\ VXPPHU RI WKH DGPLQLVWUDWLYH ODZ
XQVXSSRUWHG,QGHHG.DPWHFKLQVLVWVWKDWWKHGLVSXWHLVQRW MXGJH DVVLJQHG WR UHVROYH WKH ODERU GLVSXWH ZDV IRUFHG WR
VLPSO\DERXWZKHWKHU5RXQWUHHKDGWRZDLWIRUKLVFRPSDQ\ PDNHFUHGLELOLW\GHWHUPLQDWLRQVRQDOPRVWHYHU\XQIDLUODERU
GUXJ WHVW EHIRUH UHWXUQLQJ WR ZRUN EXW ZKHWKHU HYHQ SUDFWLFH DOOHJDWLRQ ,Q GRLQJ VR KH FRQFOXGHG WKDW 0LWFK
DVVXPLQJVXFKDGHOD\WKHHPSOR\HHPLVXVHGXQVXSHUYLVHG 'RWVRQ DQG 5REHUW <RXQJ ZHUH QRW KLUHG E\ WKH FRPSDQ\
WLPHGXULQJWKHZRUNGD\$FFRUGLQJWRWKHFRPSDQ\WKH VROHO\ EHFDXVH RI WKHLU XQLRQ DIILOLDWLRQV DQG WKDW :LOPHU
GUXJ WHVWV ZHUH FRQGXFWHG LQ WKH ODWH PRUQLQJ KRXUV DQG 6HOOHUVjV LQWHUURJDWLRQ RI WKHP UHJDUGLQJ WKHLU WLHV WR
WKHUHIRUH HYHQ LI 5RXQWUHH KDG WR ZDLW WZR KRXUV EHIRUH RUJDQL]HG ODERU FRQVWLWXWHG FRHUFLYH DFWV LQ YLRODWLRQ RI
FRPSOHWLRQRIKLVWHVWWKHHPSOR\HHVKRXOGKDYHEHHQEDFN D RI WKH 1DWLRQDO /DERU 5HODWLRQV $FW 86&
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
D 7KH DGPLQLVWUDWLYH ODZ MXGJH DOVR IRXQG .DPWHFK IXUWKHU LQVLVWV WKDW QR HYLGHQFH HVWDEOLVKHV WKDW
FRHUFLYH %RE %URZQLQJjV FRPPHQWV WR 0DUN 5RXQWUHH &RUQHOOjVQDPHZDVDOVRRQDQ\OLVWDQGWKDWLQDQ\HYHQW
VXJJHVWLQJWKDWXQLRQV\PSDWKL]HUVZHUHXQGHUVXUYHLOODQFH WKHUHLVQRLQGLFDWLRQWKDWWKHOLVWUHIHUUHGWRLQ6HSWHPEHUZDV
DQGGHWHUPLQHGWKDW.DPWHFKVXSHUYLVRUVIXUWKHUYLRODWHGWKH LQH[LVWHQFHLQODWHsXO\DQGHDUO\$XJXVW
$FWE\LPSRVLQJDPRUHGLIILFXOWDQGGDQJHURXVDVVLJQPHQW
XSRQDQLGHQWLILHGXQLRQRUJDQL]HUDQGWKHQWHUPLQDWLQJKLP 7KH UHDVRQDEOH LQIHUHQFH GUDZQ E\ WKH %RDUG KRZHYHU
ZKHQKHUHIXVHGWRSHUIRUPLW7KHILQDOYLRODWLRQVRIWKH$FW IURP WKH HYLGHQFH SUHVHQWHG EHIRUH WKH DGPLQLVWUDWLYH ODZ
IRXQGE\WKHDGPLQLVWUDWLYHODZMXGJHLQYROYHGWKHFRPPHQWV MXGJHLVWKDWWKHmOLVWlUHIHUUHGWRE\IRUHPDQ/DFH\ZDVWKH
PDGHWR0LFKDHO&RUQHOODERXWWKHIXWLOLW\RIXQLRQVXSSRUW OLVWRIYROXQWHHUXQLRQRUJDQL]HUVKDQGHGWRsRKQ:HEVWHUE\
DQG WKH FRPSDQ\jV IDLOXUH WR FRQVLGHU &RUQHOO IRU ZHOGLQJ (XJHQH)RUNLQRQsXQH 2QO\WKDWOHWWHUFRQWDLQHG
SRVLWLRQV EHFDXVH RI KLV LQFOXVLRQ RQ WKH OLVW RI YROXQWHHU WKHQDPHVRIWKHLQGLYLGXDOPHPEHUVRIWKHXQLRQDWWHPSWLQJ
RUJDQL]HUV$OORWKHUDOOHJDWLRQVPDGHE\WKH%RDUGjVJHQHUDO WRRUJDQL]HDWWKH2ZHQVERURSODQWDOLVWWKDWSURPLQHQWO\
FRXQVHODQGXQLRQUHSUHVHQWDWLYHVZHUHIRXQGLQVXIILFLHQWWR LQFOXGHGWKHQDPHRI0LFKDHO&RUQHOOGLUHFWO\DERYH0DUN
VXSSRUWILQGLQJVRIYLRODWLRQVRIWKH$FW 5RXQWUHHjVQDPH%HFDXVHWKHLQIRUPDWLRQLQWKDWOHWWHUZDV
LQWKHSRVVHVVLRQRI.DPWHFKSHUVRQQHOQRODWHUWKDQsXQH
7RUHPHG\WKRVHYLRODWLRQVWKHDGPLQLVWUDWLYHODZMXGJH LW ZDV UHDVRQDEOH IRU WKH %RDUG WR LQIHU WKDW WKH
RUGHUHG.DPWHFKWRFHDVHDQG GHVLVWIURPHQJDJLQJLQWKH FRPSDQ\jV IDLOXUH WR WUHDW &RUQHOO LQ WKH VDPH PDQQHU WKH
YHU\ DFWV WKDW FRQWUDYHQHG WKH SURWHFWLRQV DIIRUGHG LQ RXU FRPSDQ\ WUHDWHG QRQXQLRQ MRE DSSOLFDQWV LQ ODWH sXO\ DQG
QDWLRQjVODERUSROLFLHV+HIXUWKHURUGHUHGWKHFRPSDQ\WR HDUO\$XJXVWZDVEDVHGRQWKHHPSOR\HHjVXQLRQRUJDQL]LQJ
UHLQVWDWH5RXQWUHHZLWKEDFNSD\DQGWRRIIHUZHOGLQJMREVWR DFWLYLWLHVDVGRFXPHQWHGLQsXQH2QDSSHDOm>W@KLV FRXUW
'RWVRQ <RXQJ DQG &RUQHOO WKH LQGLYLGXDOV GHQLHG PD\ QRW GLVSODFH UHDVRQDEOH LQIHUHQFHV RI WKH %RDUGl
HPSOR\PHQWEHFDXVHRIWKHLUXQLRQDIILOLDWLRQV 3LNHYLOOH8QLWHG0HWKRGLVW+RVS )GDW
2QUHYLHZWKH%RDUGFRQFXUUHGLQWKHDGPLQLVWUDWLYHODZ )LQDOO\WKH%RDUGPRGLILHGWKHDGPLQLVWUDWLYHODZMXGJHjV
MXGJHjVFUHGLELOLW\GHWHUPLQDWLRQVDQGIDFWXDOILQGLQJV7KH UXOLQJ UHJDUGLQJ &RUQHOO VR DV WR RUGHU .DPWHFK WR WHVW
%RDUG GLG PRGLI\ WKH SUHYLRXVO\ HQWHUHG RUGHU VOLJKWO\ &RUQHOO IRU KLV SURILFLHQF\ DV D ZHOGHU QRW QHFHVVDULO\ WR
KRZHYHU E\ UHVFLQGLQJ WKH DGPLQLVWUDWLYH ODZ MXGJHjV UHKLUHWKHIRUPHUHPSOR\HH)RUWKLVUHDVRQDOVRWKHUHIRUH
GLUHFWLYHWKDW&RUQHOOEHRIIHUHGDSRVLWLRQZLWK.DPWHFKDQG WKH FRPSDQ\jV FLWDWLRQ WR )OXRU 'DQLHO LV LQDSSRVLWH ,Q
LQVWHDGRUGHULQJRQO\WKDW&RUQHOOEHRIIHUHGWKHRSSRUWXQLW\ DFFRUGDQFHZLWKWKHFKDOOHQJHG%RDUGUXOLQJLIWKHZHOGLQJ
WRWDNHDZHOGLQJWHVWWRGHWHUPLQHZKHWKHUKHLVTXDOLILHGIRU WHVWUHYHDOVWKDW&RUQHOOLVLQGHHGQRWTXDOLILHGIRUDSRVLWLRQ
DSRVLWLRQZLWKWKHFRPSDQ\)XUWKHUPRUHUDWKHUWKDQDIILUP
WKHGHFLVLRQWRRIIHUMREVWR'RWVRQDQG<RXQJWKH%RDUG
FKRVHPHUHO\WRUHPDQGWKHPDWWHUWRWKHDGPLQLVWUDWLYHODZ
MXGJHIRUUHFRQVLGHUDWLRQLQOLJKWRIWKH%RDUGjVGHFLVLRQLQ
.DPWHFK DOVR REMHFWV WR WKH %RDUGjV ILQGLQJ LQ WKLV UHJDUG EDVHG
)(61/5% 0D\ VHWWLQJIRUWKWKH%RDUGjV XSRQ WKH FRPSDQ\jV GLVDJUHHPHQW ZLWK WKH DGPLQLVWUDWLYH ODZ MXGJHjV
SRVLWLRQLQIDLOXUHWRFRQVLGHUFDVHV ,QDOORWKHUUHVSHFWVWKH GHFLVLRQ WR FUHGLW WKH WHVWLPRQ\ RI 5LFN\ &R[ UDWKHU WKDQ WKH WHVWLPRQ\ RI
%RDUGDIILUPHGWKHDGPLQLVWUDWLYHODZMXGJHjVGHWHUPLQDWLRQV 2NLH /DFH\ %XW XQGHU ZHOOHVWDEOLVKHG SUHFHGHQW ZH ZLOO QRW GLVWXUE
DJHQF\ FUHGLELOLW\ GHWHUPLQDWLRQV LQ WKH IDFH RI FRQIOLFWLQJ WHVWLPRQ\ 6HH
7RQ\ 6FRWW 7UXFNLQJ )G DW m7KH DVVLJQPHQW RI FUHGLELOLW\ WR
)G DW Q TXRWLQJ
ZLWQHVVHV LV WKH SUHURJDWLYH RI WKH %RDUGl 3LNHYLOOH 8QLWHG 0HWKRGLVW
)G WK &LU
+RVS 8QLRQ &DUELGH &RUS Y 1/5%
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
EHLQJUHMHFWHGIRUDSRVLWLRQIRUZKLFKKHDGPLWWHGO\ZDVQRW ',6&866,21
TXDOLILHG1RUHDVRQDEOHH[SODQDWLRQRWKHUWKDQWKDWLQIHUUHG
E\ WKH %RDUG FDQ WKXV H[SODLQ KRZ D YHWHUDQ ZHOGHU OLNH 3XUVXDQWWRWKHSURYLVLRQVRI 86&
&RUQHOOZLWKSULRUHPSOR\PHQWH[SHULHQFHZLWKWKHFRPSDQ\
FRXOG EH UHMHFWHG RXWRIKDQG IRU D SRVLWLRQ IRU ZKLFK KH (PSOR\HHVVKDOOKDYHWKHULJKWWRVHOIRUJDQL]DWLRQWR
DSSOLHG :KHQ DOO DSSOLFDQWV IRU ZHOGLQJ SRVLWLRQV DUH IRUP MRLQ RU DVVLVW ODERU RUJDQL]DWLRQV WR EDUJDLQ
RIIHUHG ZHOGLQJ WHVWV WR GHWHUPLQH WKHLU TXDOLILFDWLRQV D FROOHFWLYHO\ WKURXJK UHSUHVHQWDWLYHV RI WKHLU RZQ
FRPSDQ\ LV SURKLELWHG E\ WKH $FW IURP VHOHFWLYHO\ FKRRVLQJDQGWRHQJDJHLQRWKHUFRQFHUWHGDFWLYLWLHVIRU
GLVFULPLQDWLQJDJDLQVWRQO\XQLRQPHPEHUVE\GHQ\LQJWKHP WKHSXUSRVHRIFROOHFWLYHEDUJDLQLQJRURWKHUPXWXDODLG
HTXDORSSRUWXQLWLHVWRFRPSHWHIRUDYDLODEOHSRVLWLRQV7KH RUSURWHFWLRQDQGVKDOODOVRKDYHWKHULJKWWRUHIUDLQIURP
%RDUGjVILQGLQJRIDYLRODWLRQRIWKH$FWLQWKLVUHJDUGPXVW DQ\RUDOORIVXFKDFWLYLWLHVH[FHSWWRWKHH[WHQWWKDWVXFK
WKHUHIRUHEHDIILUPHG ULJKW PD\ EH DIIHFWHG E\ DQ DJUHHPHQW UHTXLULQJ
PHPEHUVKLS LQ D ODERU RUJDQL]DWLRQ DV D FRQGLWLRQ RI
$VDQDGGLWLRQDOEDVLVIRUFKDOOHQJLQJWKH%RDUGjVGHFLVLRQ HPSOR\PHQW DV DXWKRUL]HG LQ VHFWLRQ D RI WKLV
UHJDUGLQJ WKH IDLOXUH WR FRQVLGHU &RUQHOOjV mDSSOLFDWLRQl WLWOH
.DPWHFK DVVHUWV WKDW DQ\ HYLGHQFH RI WKH FRPSDQ\jV DQWL
XQLRQ DQLPXV WRZDUG WKH HPSOR\HH LV EDVHG VROHO\ XSRQ &RQJUHVVKDVGHFUHHGSURWHFWLRQRIWKHVHLPSRUWDQWULJKWVE\
WHVWLPRQ\FRQFHUQLQJDQRWKHULQGLYLGXDODWDWLPHGLIIHUHQW PDNLQJLWDQXQIDLUODERUSUDFWLFHRQWKHSDUWRIHPSOR\HUVWR
IURP WKDW DW ZKLFK &RUQHOO VRXJKW WR EH UHKLUHG 7KLV DPRQJ RWKHU WKLQJV mLQWHUIHUH ZLWK UHVWUDLQ RU FRHUFH
FRQWHQWLRQ LV DOVR ODFNLQJ LQ ERWK ORJLF DQG PHULW ,Q HPSOR\HHVLQWKHH[HUFLVHRIWKHULJKWVJXDUDQWHHGLQVHFWLRQ
DGYDQFLQJLWVGHIHQVHWRWKLVFKDUJH.DPWHFKFODLPVWKDWWKH RIWKLVWLWOHl 86& D RUmE\GLVFULPLQDWLRQ
RQO\ HYLGHQFH RI LWV DQWLXQLRQ ELDV DW +DZHVYLOOH ZDV LQ UHJDUG WR KLUH RU WHQXUH RI HPSOR\PHQW RU DQ\ WHUP RU
GHPRQVWUDWHGWKURXJKWKHFRQWHVWHGWHVWLPRQ\RI5LFN\&R[ FRQGLWLRQ RI HPSOR\PHQW WR HQFRXUDJH RU GLVFRXUDJH
ZKRRYHUKHDUGIRUHPDQ/DFH\VWDWHLQ6HSWHPEHU WKDWKH PHPEHUVKLS LQ DQ\ ODERU RUJDQL]DWLRQl 86&
FRXOGQjWKLUH0DUN5RXQWUHHEHFDXVHRI5RXQWUHHjVLQFOXVLRQ D
RQ D OLVW DW WKH 2ZHQVERUR SODQW IRU VWDUWLQJ mVRPH XQLRQ
SUREOHPVWU\LQJWRRUJDQL]HWKHXQLRQl.DPWHFKWKHQ $VZHKDYHQRWHGDQHPSOR\HUJHQHUDOO\FRPPLWVDQXQIDLU
DUJXHVWKDWWKH%RDUGLPSURSHUO\H[WUDSRODWHGWKDWDQLPXVWR ODERU SUDFWLFH E\ PDNLQJ DQ HPSOR\PHQW GHFLVLRQ WKDW
WKHGHFLVLRQWRWUHDW&RUQHOOGLIIHUHQWO\ZKHQKHDSSOLHGIRU GLVFRXUDJHV XQLRQ PHPEHUVKLS RU LQWHUIHUHV ZLWK DQ
DSRVLWLRQLQ+DZHVYLOOHLQODWHsXO\DQGHDUO\$XJXVW HPSOR\HHjV ULJKW WR RUJDQL]H 6HH 2SSRUWXQLW\ +RPHV Y
1/5% )G WK &LU RYHUUXOHG RQ
RWKHUJURXQGVLQ1/5%Y:HEFRU3DFNDJLQJ,QF)G
WK &LU 7KH WKUHVKROG WHVW IRU GHWHUPLQLQJ
)XUWKHU XQGHUPLQLQJ .DPWHFKjVDVVHUWLRQ WKDW &RUQHOO ZDV QRW HYHQ ZKHWKHUWKHHPSOR\PHQWGHFLVLRQFRQVWLWXWHVDQXQIDLUODERU
IRU KLULQJ GXH WR KLV ODFN RI TXDOLILFDWLRQV LV WKH WHVWLPRQ\ RI SUDFWLFHLVZKHWKHUWKHGHFLVLRQZDVPRWLYDWHGE\DQWLXQLRQ
%DUU\ 5REHUWV D SURMHFW PDQDJHU DW .DPWHFK ZKR DGPLWWHG WKDW HYHQ
FRQVLGHUHG
DQLPXV6HH1/5%Y&RRN)DPLO\)RRGV/WG)G
RI WKH 7,* ZHOGHUV IDLOHG WKH ZHOGLQJ WHVW JLYHQ E\ WKH FRPSDQ\ ,I WK&LU
VHYHQ RI HYHU\ WHQ DSSOLFDQWV ZKR FODLP WR EH 7,* ZHOGHUV IDLO WR SHUIRUP
WKH WHVW VDWLVIDFWRULO\ EXW \HW DUH SHUPLWWHG WR WR VXFFHHG LQ 7KH %RDUG EHDUV WKH LQLWLDO EXUGHQ RI HVWDEOLVKLQJ E\ D
SHUIRUPLQJ WKH MRE SUHUHTXLVLWH WKH FRPSDQ\jV H[SODQDWLRQ WKDW &RUQHOO
DWWHPSW
ZDV QRW DOORZHG WR DWWHPSW D ZHOGLQJ WHVW EHFDXVH KH GLG QRW GHPRQVWUDWH SUHSRQGHUDQFHRIWKHHYLGHQFHWKDWWKHHPSOR\HUjVGHFLVLRQ
VXIILFLHQW NQRZOHGJH RI WKH FUDIW WKH WHOHSKRQH
RYHU ULQJV KROORZ LQGHHG ZDV PRWLYDWHG E\ WKH HPSOR\HHVj H[HUFLVH RI WKHLU ULJKWV
.DPWHFK,QFY1/5% 1RV 1RV .DPWHFK,QFY1/5%
SURWHFWHGE\WKH1DWLRQDO/DERU5HODWLRQV$FW6HH'LUHFWRU .DPWHFKUHOLHVRQ1/5%Y)OXRU'DQLHO,QF)G
2IILFH RI :RUNHUVj &RPS 3URJUDPV 'HSjW RI /DERU Y WK&LU HFKRLQJRXUUXOLQJWKHUHWKDWm>W@KHUHLV
*UHHQZLFK&ROOLHULHV86 $IWHUVXFK QRLQWHUIHUHQFHZLWKUHVWUDLQWRUFRHUFLRQRIDSSOLFDQWVLQWKH
D SULPD IDFLH VKRZLQJ KDV EHHQ PDGH E\ WKH %RDUG WKH H[HUFLVHRIWKHLUSURWHFWHGULJKWVZKHQDQHPSOR\HUHYHQZLWK
EXUGHQRISHUVXDVLRQVKLIWVWRWKHHPSOR\HUWRSURYHDJDLQE\ DQWLXQLRQ DQLPXV UHMHFWV DSSOLFDQWV ZKR DUH LQ IDFW
DSUHSRQGHUDQFHRIWKHHYLGHQFHWKHDIILUPDWLYHGHIHQVHWKDW XQTXDOLILHG RU IRU ZKRVH SDUWLFXODU VHUYLFHV WKH HPSOR\HU
WKHVDPHHPSOR\PHQWGHFLVLRQZRXOGKDYHEHHQPDGHHYHQ VLPSO\KDVQRQHHGl5HOLDQFHXSRQVXFKDQLQWHUSUHWDWLRQRI
LQWKHDEVHQFHRIDQ\SURWHFWHGODERUDFWLYLW\6HH:)%ROLQ WKH$FWLQWKLVLQVWDQFHKRZHYHUFDQEHRIQRDYDLOWRWKH
&RY1/5%)G WK&LU SHWLWLRQHULQDGGUHVVLQJWKHFKDUJHVOHYHOHGE\&RUQHOO
%RDUGILQGLQJVRIIDFWDUHFRQFOXVLYHRQDSSHDOLIVXSSRUWHG )LUVW WKH UHFRUG QRZ EHIRUH WKH FRXUW LV XQGLVSXWHG WKDW
E\ VXEVWDQWLDO HYLGHQFH RQ WKH UHFRUG 6HH 86& .DPWHFKZDVLQGHHGVHHNLQJZHOGHUVDWLWV+DZHVYLOOHZRUN
H DQG I m6XEVWDQWLDOHYLGHQFHlKDVEHHQGHILQHGDV VLWH ,Q IDFW QRW RQO\ GLG D .DPWHFK UHSUHVHQWDWLYH LQ
mVXFKUHOHYDQWHYLGHQFHDVDUHDVRQDEOHPLQGPLJKWDFFHSWDV 2ZHQVERURILUVWLQIRUP&RUQHOOWKDWWKHFRPSDQ\ZDVKLULQJ
DGHTXDWHWRVXSSRUWDFRQFOXVLRQl2SSRUWXQLW\+RPHV LQ+DZHVYLOOHEXWWKHLQGLYLGXDOZKRDQVZHUHGWKHSKRQHDW
)GDW TXRWLQJ&RQVRO(GLVRQ&RY1/5%86 WKH KLULQJ ORFDWLRQ DOVR FRQILUPHG WKDW WKH FRPSDQ\ ZDV
m'HIHUHQFHWRWKH%RDUGjVIDFWXDOILQGLQJV ORRNLQJWRHPSOR\ZHOGHUV
LVSDUWLFXODUO\DSSURSULDWHZKHUHWKHµUHFRUGLVIUDXJKWZLWK
FRQIOLFWLQJWHVWLPRQ\DQGHVVHQWLDOFUHGLELOLW\GHWHUPLQDWLRQV 6HFRQG HYHQ WKH )OXRU 'DQLHO PDMRULW\ UHFRJQL]HG WKDW
KDYHEHHQPDGHjl7RQ\6FRWW7UXFNLQJ,QFY1/5% DQWLXQLRQ DQLPXV FDQQRW OHJDOO\ EH PDQLIHVWHG LQ VXFK D
)G WK&LU TXRWLQJ1/5%Y1XHYD(QJjJ PDQQHUDVWRUHVXOWLQGLIIHUHQWWUHDWPHQWIRUXQLRQDSSOLFDQWV
,QF)G WK&LU )XUWKHUPRUHWKH DQGQRQXQLRQDSSOLFDQWV6HHLGDW &RQVHTXHQWO\
FRXUWVKRXOGQRWGLVSODFHUHDVRQDEOHLQIHUHQFHVGUDZQE\WKH .DPWHFKjVmMXVWLILFDWLRQlIRUIDLOLQJHYHQWRFRQVLGHU&RUQHOO
%RDUG IURP WKH IDFWV SUHVHQWHG 6HH 3LNHYLOOH 8QLWHG IRUDZHOGLQJMREEHFDXVHRILPSURSHUDQVZHUVWRTXHVWLRQV
0HWKRGLVW +RVS Y 8QLWHG 6WHHOZRUNHUV RI $P )G XQH[SHFWHGO\DVNHGRYHUWKHWHOHSKRQHPXVWIDLOLQWKHIDFHRI
WK&LU WHVWLPRQ\ WKDW WKH FRPSDQ\ URXWLQHO\ UHVHUYHG LWV KLULQJ
GHFLVLRQV XQWLO DIWHU WHVWLQJ DSSOLFDQWV E\ KDYLQJ WKHP
,Q LWV ILUVW LVVXH LQ LWV SHWLWLRQ IRU UHYLHZ RI WKH %RDUGjV GHPRQVWUDWH WKHLU ZHOGLQJ DELOLW\ LQ SHUVRQ 7HOOLQJO\
RUGHU .DPWHFK FRQWHQGV WKDW WKH %RDUG HUUHG LQ JUDQWLQJ WHVWLPRQ\RIIHUHGE\7RQ\+ROFRPEHVWDEOLVKHGWKDWHYHQD
UHOLHI WR 0LFKDHO &RUQHOO RQ KLV DVVHUWLRQ WKDW KH ZDV SLSHILWWHU OLNH +ROFRPE ZDV RIIHUHG D ZHOGLQJ WHVW EHIRUH
LPSURSHUO\ GHQLHG DQ RSSRUWXQLW\ WR EH FRQVLGHUHG IRU D
ZHOGLQJMREDW.DPWHFKjV+DZHVYLOOHVLWH,QDGYDQFLQJWKLV
WKHRU\.DPWHFKPDLQWDLQVWKDWWKLVFRXUWjVGHFLVLRQLQ)OXRU :HOO VWUXFWXUDO ZHOGLQJ \RX DUH XVLQJ D FRDWHG ZHOGLQJ URG
'DQLHOSUHFOXGHVUHOLHIIRU&RUQHOOVLPSO\EHFDXVH&RUQHOO DQG LQ 7,* ZHOGLQJ \RX DUH XVLQJ D 7XQJVWHQ WLS RQ D WRUFK DQG
ZDVQRWTXDOLILHGIRUDMREDVD7,*ZHOGHU \RX KDYH WR IHHG WKH ZLUH DQG KDYH D VKLHOG DQG \RX IHHG WKH
7XQJVWHQ WLS LQ WKH FRQWH[W ZLWK WKH PHWDO ZKLFK KHDWV WKH PHWDO
DQG \RX KDYH WR IHHG WKH ZLUH ZLWK \RXU RSSRVLWH KDQG $V IDU
DV VWUXFWXUDO ZHOGLQJ MXVW XVHV D ZHOGLQJ URG ZKLFK LW WDNHV PRUH
$FFRUGLQJ WR WKH WHVWLPRQ\ JLYHQ EHIRUH WKH DGPLQLVWUDWLYH ODZ VNLOO WR EHFRPH D 7,* ZHOGHU PRUH SUDFWLFH 1RUPDOO\ PRVW
MXGJH E\ m7RSSHUl 7KRPDV D .DPWHFK VXSHUYLVRU ZKR RYHUVDZ VWUXFWXUDO SHRSOH VWDUW DV D VWUXFWXUDO ZHOGHU DQG WKHQ WKURXJK WLPH WKH\ JHW
SLSH ZRUN WKH GLIIHUHQFH EHWZHHQ VWUXFWXUDO ZHOGLQJ DQG 7,* ZHOGLQJ PRUH H[SHULHQFH DQG EHFRPH D 7,* ZHOGHU
FDQ EH H[SODLQHG DV IROORZV
| {
"pile_set_name": "FreeLaw"
} |
638 F.2d 167
UNITED STATES of America, Plaintiff-Appellee,v.Ariel Henry TAGER, Defendant-Appellant.
No. 79-1691.
United States Court of Appeals,Tenth Circuit.
Argued July 9, 1980.Decided Oct. 20, 1980.
James R. Wyrsch of Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, Mo., for defendant-appellant.
Michael DeFeo, Atty., U. S. Dept. of Justice, Kansas City, Mo. (James P. Buchele, U. S. Atty., Topeka, Kan., David B. B. Helfrey and Grover G. Hankins, Attys., U. S. Dept. of Justice, Kansas City, Mo., on brief), for plaintiff-appellee.
Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges.
SETH, Chief Judge.
1
This appeal arises from the conviction of appellant for mail fraud. 18 U.S.C. § 1341. The government alleged a scheme involving many people, including doctors, lawyers, and automobile repairmen, who were engaged in defrauding insurance companies. Appellant, an attorney, was indicted and prior to trial he moved to dismiss the indictment and to suppress certain evidence. The motions were denied, and it is from the denial of these motions that Mr. Tager appeals.
2
The relevant facts are as follows. The investigation leading to the indictment herein at issue was started by a Mr. Edward House employed by the Insurance Crime Prevention Institute (ICPI). The ICPI is an organization funded by over 300 insurance companies to investigate possible frauds against insurance companies. Neither the ICPI nor Mr. House was in any official position whatever. Mr. House worked as an investigator of ICPI and developed sufficient evidence to refer this case to the United States Postal Inspection Service. Thereafter he continued to assist in the investigation at the government's invitation.
3
A grand jury was convened in Kansas City, Kansas. The government moved for disclosure to Mr. House of certain grand jury materials to enable him further to assist in the investigation. The motion was made under Fed.R.Crim.P. 6(e) (3)(C)(i) (then Rule 6(e)(2)(C)(i)). The trial judge who heard the motion granted it and ordered the requested disclosure. The investigation was subsequently transferred from the Kansas City, Kansas grand jury to a grand jury in Topeka, Kansas. An indictment was returned against appellant and others in Topeka. As stated above, appellant moved to dismiss the indictment and to suppress evidence, but the motions were denied. The trial judge hearing these motions had misgivings as to whether the disclosure to Mr. House was authorized by Rule 6(e); however, he felt bound by the prior decision of the judge who originally authorized the disclosures. This second judge registered his misgivings in a thorough memorandum accompanying his order denying the motions. We have followed and rely to a large measure on his analysis.
4
The primary issue on appeal is whether the disclosure in these circumstances of grand jury materials to Mr. House was within the authority provided by Fed.R.Crim.P. 6(e). For the reasons that follow we conclude it was not.
5
The Federal Rules of Criminal Procedure prohibit generally the disclosure of "matters occurring before the grand jury." Fed.R.Crim.P. 6(e)(2). This rule codifies the long-standing policy of secrecy provided grand jury proceedings. The compelling policy reasons supporting this strict rule have been described in many cases. See, e. g., Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156; Dennis v. United States, 302 F.2d 5 (10th Cir.); Bary v. United States, 292 F.2d 53 (10th Cir.); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.). This rule of secrecy "must not be broken except where there is a compelling necessity," shown with particularity. United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077.
6
There are several exceptions to the rule of secrecy. These are for disclosure to a government attorney, Rule 6(e)(3)(A)(i); to government personnel assisting the government attorney, Rule 6(e)(3)(A)(ii); by court order preliminarily to or in connection with a judicial proceeding, Rule 6(e)(3)(C)(i); and to a criminal defendant under certain conditions, Rule 6(e)(3)(C)(ii). Inasmuch as Mr. House is neither a government attorney, government "personnel," nor a criminal defendant, subsections (A)(i), (A)(ii), and (C)(ii) are not applicable. Accordingly, the government argues the authority provided the court in subsection (C)(i) (in connection with a judicial proceeding) is sufficiently broad to encompass the disclosure to Mr. House ordered here.
7
As an initial concern we note that Mr. House did in fact review transcripts of the proceedings before the grand jury. The government conceded this at the hearing on the motions for dismissal and suppression. The government attorney stated: "The witness (Mr. House) will testify he has reviewed grand jury transcripts in this investigation. The government concedes that." VII Rec. at 117. The disclosure is therefore controlled by Rule 6(e), and United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir.) (disclosure of material that does not reveal matters occurring before grand jury not controlled by Rule 6(e)), is inapposite.
8
Subsection (C)(i) excepts from the rule of secrecy disclosures "when so directed by a court preliminarily to or in connection with a judicial proceeding." The government contends that the grand jury proceedings in this case are "judicial proceedings" within the meaning of Rule 6(e)(3)(C)(i). The government cites several cases in support of this proposition. See United States v. Stanford, 589 F.2d 285 (7th Cir.); In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282 (S.D.Fla.); In re Minkoff, 349 F.Supp. 154 (D.R.I.). Indeed, one court has termed this proposition "well settled." In re Braniff Airways, Inc., 390 F.Supp. 344, 346 (W.D.Tex.).
9
The proposition is hardly well settled. While the Minkoff court ruled that a grand jury proceeding was a "judicial proceeding" within the meaning of subsection (C)(i), it limited its power to order disclosure to discharged grand jury proceedings. The court conditioned its order granting disclosure upon the adjournment of the grand jury. The court said:
10
"Where termination is a condition of disclosure, it is obvious that such disclosure can neither help nor harm the completed investigation. In such circumstances I find I have the power to order disclosure, without deciding today the power of the court to order disclosure of grand jury minutes which would take effect before the dismissal of the grand jury."
11
In re Minkoff, 349 F.Supp. 154, 156-57 (D.R.I.). In addition, the disclosure was to a witness of her own testimony before the grand jury and not to an investigator to assist the investigation. Thus Minkoff provides no support for the government's position in this case. The grand jury proceedings here were in full force at the time disclosure was ordered.
12
Furthermore, the unanswered question in Minkoff was recently resolved by the same court in In re Grand Jury Proceedings, 445 F.Supp. 349 (D.R.I.), appeal dismissed, 580 F.2d 13 (1st Cir.) (nonappealable order). The court there held that it was without subsection (C)(i) power to order disclosure to state investigative personnel during an ongoing grand jury proceeding.
13
The government's reliance on In re Braniff Airways, Inc., 390 F.Supp. 344 (W.D.Tex.), and In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282 (S.D.Fla.), is misplaced. The orders in those cases involved the disclosure to grand jury witnesses of transcripts of their own testimony before the ongoing grand jury. Both cases assumed the "judicial proceeding" requirement of subsection (C)(i) to be satisfied. The Braniff court then exercised its discretion in favor of disclosing transcripts of the witness' own testimony to that particular witness, given the unusual complexity and length of those proceedings. The Subpoenas court denied disclosure, finding that the movants had failed to show a particularized and compelling need for disclosure. We are not here faced with the disclosure of a witness' testimony to that witness during an ongoing grand jury proceeding. We therefore express no view as to the propriety of a (C)(i) order approving such a disclosure. It is enough for our purpose to observe that Braniff and Subpoenas offer little, if any, support for the government in this case.
14
Indeed, the Subpoenas court, the Southern District of Florida, denied a subsection (C)(i) motion for disclosure to state government personnel to assist in the investigation of an ongoing grand jury. In re Miami Federal Grand Jury No. 79-8, 478 F.Supp. 490 (S.D.Fla.). The court ruled that the government had failed to show a particularized and compelling need for disclosure, mere familiarity with the case and local expertise being insufficient to justify breaching the grand jury's veil of secrecy. For the purpose of deciding the case before it the Miami court was willing to assume that subsection (C)(i)'s "judicial proceeding" requirement was satisfied. The court observed, however, that "(t)o apply this provision to the very grand jury from which disclosure is sought seems somewhat illogical." Id. at 493.
15
The only case offered by the government which parallels the facts before us and arguably supports the government's position is United States v. Stanford, 589 F.2d 285 (7th Cir.), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244. There the Seventh Circuit held that the lower court properly ordered disclosure to state government personnel under subsection (C)(i) of proceedings occurring before an ongoing grand jury to assist the federal government in its investigation. The court decided that the "judicial proceeding" requirement was met. It then concluded that the lower court had not abused its discretion. It did not address the propriety of subsection (C)(i) disclosure to a private, nongovernmental investigator. And it is unclear whether the Stanford court would have reached the same result if disclosure had been to a person like Mr. House instead of state government officials.
16
In addition to its lack of case support, the government's position is further undermined by the structure of Rule 6(e). The need for assistance in federal investigations which is highlighted by the issue before us was not a matter within the contemplation of subsection (C)(i). The need for assistance is addressed by subsection (A)(ii). This subsection authorizes disclosure to "such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law." Moreover, the drafters of (A)(ii) considered whether the assistance of private persons like Mr. House should be included. They decided against such inclusion by limiting (A)(ii) to "government personnel." See Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings on H.R. 5864 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 92 (1977). See also S.Rep.No. 354, 95th Cong., 1st Sess. 5-6, reprinted in (1977) U.S.Code Cong. & Admin.News pp. 527, 528-30.
17
Subsection (C)(ii) contemplates proceedings other than the grand jury proceeding itself, otherwise there is little purpose for the other subsections. As previously discussed, some courts have authorized disclosures in connection with a grand jury proceeding under subsection (C)(i). But these were not for the purpose of assisting the ongoing grand jury investigation, which is the province of subsection (A)(ii); they were for witnesses of their own testimony to prevent unfairness which would otherwise have occurred. We must hold that subsection (C)(i) "is not designed nor has it been used in the past as a source of authority for a court to order disclosure to assist with the present grand jury proceedings." In re Grand Jury Proceedings, 445 F.Supp. 349 (D.R.I.), appeal dismissed, 580 F.2d 13 (1st Cir.).
18
While the Supreme Court has not addressed this question, in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156, the Court stated with regard to exceptions to secrecy:
19
"(C)ourts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. At the same time, it has been recognized that in some situations justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings."
20
Id. at 219-20, 99 S.Ct. at 1673 (emphasis added). The Court then announced the standard governing subsection (C)(i) disclosures as follows:
21
"Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed."
22
Id. at 222, 99 S.Ct. at 1674. (emphasis added).
23
Accordingly, we hold that the trial court was without authority under Rule 6(e)(3)(C)(i) to order disclosure to Mr. House to assist the ongoing grand jury investigation. The grand jury proceedings themselves from which information is sought to be revealed are not the "judicial proceeding" contemplated by Rule 6(e)(3)(C)(i) as here sought to be applied. The structure of the Rule determines this conclusion. As we have already said, we intimate no views concerning the propriety in general of subsection (C)(i) disclosure to a grand jury witness during an ongoing grand jury proceeding in order to avoid injustice to that witness. Also, in view of our disposition of the case we do not pass on the pre-indictment publicity issue.
24
Appellant's remaining contentions are persuasively and correctly disposed of by the lower court. We need consider them no further.
25
REVERSED and REMANDED for further proceedings consistent with the views expressed herein.
26
SEYMOUR, Circuit Judge, dissenting.
27
In reaching its decision under Fed.R.Crim.P. 6(e), the majority distinguishes United States v. Stanford, 589 F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979). Persuaded, as I am, by the Seventh Circuit's reading of the "judicial proceeding" language in Rule 6(e), see id. at 292, I dissent from the holding that the trial court lacked authority under Rule 6(e)(3)(C)(i) to order disclosure to Mr. House.
28
Stanford construed a predecessor version of Rule 6(e). See id. at 289 n.1. Nevertheless, both that version and the one applicable here permit disclosure "when so directed by a court preliminarily to or in connection with a judicial proceeding."
29
Like Tager, the Stanford defendants were convicted of federal mail fraud. The Illinois Department of Public Aid (IDPA) was a victim in the welfare fraud scheme. During the grand jury investigation, the district court issued orders under Rule 6(e) that permitted disclosure of grand jury materials, including transcripts, to FBI agents, IDPA employees, and Illinois Department of Law Enforcement personnel. These disclosures were necessary to provide federal prosecutors with expert assistance in aid of the grand jury investigation.
30
On appeal, Stanford and his codefendants claimed, inter alia, that because a grand jury investigation was not a Rule 6(e) "judicial proceeding," the disclosure orders were improper. The Seventh Circuit rejected the argument:
31
"Rule 6(e) permits disclosure orders not only 'in connection with' but also 'preliminarily to' a judicial proceeding. Although a grand jury proceeding may not itself be 'determinable by a court,' Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894, 897 (7th Cir. 1973), quoting Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958), it is nevertheless preliminary to such proceedings. See United States v. Universal Manufacturing Co., 525 F.2d 808 (8th Cir. 1975); In re Special February 1971 Grand Jury v. Conlisk, supra."
32
Stanford, 589 F.2d at 292. In my view, this reasoning applies to the disclosure order here.1
33
I cannot agree with the majority's implied suggestion that the Seventh Circuit might have decided Stanford in reverse had the disclosures been made to private, nongovernmental investigators. Stanford rests upon the actual "judicial proceeding" language now in subsection (3)(C)(i), not upon the identity of those to whom disclosure is made. Even the majority's own view of that subsection does not suggest such a government-nongovernment distinction.
34
Neither can I agree that the structure of Rule 6(e) implies a lack of authority for disclosure orders such as here. The majority views the grouping principle of Rule 6(e)(3) to be disclosures in aid of grand jury investigations (subsections (A) and (B)) versus disclosures in judicial proceedings that occur after discharge of the grand jury (subsection (C)). The grouping principle might just as easily be viewed as disclosures that do not require court approval versus disclosures that do. Permitting disclosures to government personnel without court approval, as Congress did in subsection (A), does not of itself imply a prohibition in subsection (C) against court-approved disclosure to nongovernment personnel.
35
Finally, I find nothing in the legislative history cited by the majority that suggests a per se rule against court-approved disclosure to nongovernment personnel during an ongoing grand jury investigation for the sole purpose of aiding that investigation. I would hold that Rule 6(e)(3)(C)(i) permits such disclosure within the discretion of the court.
1
In direct support for its contrary holding, the majority cites language from In re Miami Federal Grand Jury No. 79-8, 478 F.Supp. 490 (S.D.Fla.1979), and In re Grand Jury Proceedings, 445 F.Supp. 349 (D.R.I.), appeal dismissed, 580 F.2d 13 (1st Cir. 1978) (lack of appellate jurisdiction). The Southern District of Florida is quoted as saying that the application of Rule 6(e)(3)(C) "to the very grand jury from which disclosure is sought seems somewhat illogical." 478 F.Supp. at 493. But the Florida court just as plainly conceded that "(c)onceivably, however, subsection C can be seen as providing the court with a discretionary means of disclosure beyond the confines of subsection A." Id. In the end, the court found it unnecessary to resolve the issue, for it concluded that the Government failed to show the requisite need for disclosure
The District of Rhode Island did say subsection (C)(i) was "not designed" to permit disclosures during ongoing grand jury investigations. See 445 F.Supp. at 350. But the thrust of its holding was that the federal prosecutor failed to establish the requisite need for disclosure to the state detective. See id. It was on this discretionary basis only that the First Circuit viewed the holding. See 580 F.2d at 17.
In sum, I cannot find in either case the solid support found by the majority for its reading of Rule 6(e)(3)(C)(i).
| {
"pile_set_name": "FreeLaw"
} |
98 Wn.2d 650 (1983)
658 P.2d 1219
WALLACE HARRIS, ET AL, Appellants,
v.
MERLE R. HORNBAKER, ET AL, Respondents.
No. 48030-3.
The Supreme Court of Washington, En Banc.
February 3, 1983.
*652 Robert Backstein and Evans & Kerr, by Leland B. Kerr, for appellants.
C.J. Rabideau, Prosecuting Attorney, and George E. Heidlebaugh, Deputy, for respondents Hornbaker, et al.
Leavy & Taber, by Andrew C. Bohrnsen and John G. Schultz, for respondents Powers, et al.
BRACHTENBACH, J.
Appellants Harris, et al, appeal from a trial court's rejection of their challenge to the Franklin County Board of Commissioners' determination of where a freeway interchange should be located. We affirm.
The facts relevant to this case developed over a 10-year period. In 1970 the State Department of Transportation planned to construct a new Interstate 182 freeway through the Tri-Cities area in eastern Washington. To connect Pasco and Franklin County to this freeway system, an I-182 spur route was planned from South Richland through the "North Riverview" area of Franklin County to Pasco. See Figure 1. Two interchanges with the I-182 spur were planned in the Riverview area as part of the project: one at Road 68 and one in the vicinity of Road 100. See Figure 1. While the final decision concerning the location of the interchange rested with the State Department of Transportation (then the Department of Highways), the State agreed to give serious consideration to the recommendations of the Franklin County Board of Commissioners (hereinafter the Board). The location of the second interchange is the focus of this controversy.
The first location, proposed by appellants and others, was close to the river and described as "an extension of Road 100 ... angling westerly connecting with Road 116 in the Road 100/116 corridor" (hereinafter referred to as the Road 116 interchange). See Figure 2. Appellants are residents and landowners in the Riverview area and areas to
*653
the north, northwest, and northeast of the Road 116 interchange. They prefer the Road 116 interchange because it is close to the Columbia River, the focus of present and anticipated development. Exhibit A-32. Pursuant to appellants' proposal, the Franklin County Board of Commissioners sent a letter on May 18, 1971, to the Washington Department of Transportation requesting the Road 116 interchange.
Further action on the I-182 project occurred only sporadically over a period of years because of funding problems which ultimately caused the I-182 project to be tabled. The project was resurrected after the passage of the
*654 *655 gasoline tax bill by the State Legislature in 1977. Laws of 1977, 1st Ex. Sess., ch. 317.
In early February 1978, intervenors Powers, et al, proposed another location for the interchange, an extension due north from I-182 along Road 100 (hereinafter the Road 100 interchange). See Figure 2. Intervenors are residents and landowners in the area adjacent to, or in the area of, an extension of Road 100 north. They favor the Road 100 interchange because, in part: it is a more central location for the potential development of the area both east and west of Road 100; the existing grid system for roads would be maintained and a diagonal bisection would be avoided; and the Road 100 interchange would be most direct for the overall area.
Appellants responded in favor of the previously designated Road 116 interchange because, in part: it was closer to the river and areas most likely to be developed first; it did not bisect the sand dune area; and it had been adopted by a previous board of commissioners and accepted and relied upon by many residents. Exhibit A-30.
After a number of informal meetings, the Franklin County Board of Commissioners requested the Department of Transportation to change the location from the Road 116 interchange to the Road 100 interchange. A 6-year plan was adopted by the Board in October 1978, incorporating the Road 100 interchange. See RCW 36.81.121.
Appellants challenged the Board's action in superior court. They alleged that the Board had failed to comply with the provisions of the State Environmental Policy Act of 1971 (SEPA) by failing to submit an environmental evaluation or an environmental impact statement (EIS) prior to changing the location of the interchange, and prior to the approval of the 6-year road plan. Exhibit A-32. Appellants also alleged the Board's decision to move the interchange was arbitrary and capricious, clearly erroneous, and without sufficient evidence to support the determination. Exhibit A-32.
In June 1979, a superior court judge held the Board's *656 action was "null and void" because there was no verbatim record or written findings to justify the Board's decision; hence the action was unreviewable. The court ruled, however, that the Board was not required to prepare an EIS of the Road 100 interchange, because its action was only in the nature of a recommendation, but stated the State might be required to do so.
Thereafter, the Board held two public hearings on August 6 and 21, 1979, to adopt a 6-year plan. The second hearing was for the sole purpose of discussing the interchange issue. Statutory notice and procedural requirements were followed for both hearings. All citizens desiring to speak at the August 21 interchange hearing were asked to sign in and state how much time they needed to speak. Additional written evidence was accepted until August 23, 1979. On August 30, 1979, the Board voted unanimously to adopt a 6-year plan including its recommendation to the Department of Transportation to locate the I-182 interchange at Road 100.
Appellants Harris, et al, appealed that decision. A superior court rejected appellants' writ of certiorari and upheld the Board's decision. The court excluded evidence on the question of prejudgment bias and held: (1) the "appearance of fairness" doctrine was inapplicable, (2) its prior holding regarding conformance with SEPA procedures was res judicata, and (3) the evidence supported the Board's recommendation of the Road 100 interchange. This appeal followed.
I
Appellants first make numerous claims about the unfairness of the public hearing on August 21, 1979. Before determining the merits of those claims we must appropriately characterize the Board's function in rendering its recommendation to the Department of Transportation.
[1] While fairness is fundamental to any proceeding, the scope of a fairness inquiry is framed by the type of decision being made. In an adjudicatory setting, impartiality and *657 lack of bias are required of decision makers. Fleming v. Tacoma, 81 Wn.2d 292, 502 P.2d 327 (1972). This is not true in the legislative process, however.
Unlike a judicial hearing where issues of fact should be resolved from the evidence only without regard to the private views of the judges, a legislative hearing may reach a decision in part from the legislator's personal predilections or preconceptions. Indeed, the election of legislators is often based on their announced views and attitudes on public questions.
Smith v. Skagit Cy., 75 Wn.2d 715, 740-41, 453 P.2d 832 (1969). This concept limits, to an extent, the role of the courts in reviewing legislative decisions.
The rule that courts generally will not inquire into the motives of legislative officers acting in a legislative capacity is not new. See 1 C. Antieau, Municipal Corporation Law § 5.15 (1982); 5 E. McQuillin, Municipal Corporations § 16.90 (3d rev. ed. 1981); Cornelius v. Seattle, 123 Wash. 550, 213 P. 17 (1923); Goebel v. Elliott, 178 Wash. 444, 35 P.2d 44 (1934).
[Municipal l]egislation is not to be nullified by the judicial branch of government unless the enactment contravenes the constitution or is manifestly unreasonable, arbitrary and capricious.
Fleming v. Tacoma, supra at 301 (Neill, J., concurring).
[2] Whether a decision is legislative or adjudicatory does not necessarily depend on the type of decisionmaking body, however. Members of the judiciary may be entrusted with functions that are legislative in character, see Concerned Citizens of S. Ohio, Inc. v. Pine Creek Conservancy Dist., 429 U.S. 651, 657-58, 51 L.Ed.2d 116, 97 S.Ct. 828 (1977) (Rehnquist, J., dissenting) (judges serving to create conservancy districts act in legislative capacity), while legislative bodies may be entrusted with essentially adjudicatory tasks, see Fleming v. Tacoma, supra (county board's rezoning decisions deemed quasi adjudicatory). See generally In re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976). We must look, instead, to the kind of decision being *658 made to determine the breadth of the fairness inquiry.
[3, 4] Appellants would have us review this case under the appearance of fairness doctrine. This doctrine has been applied when legislators are involved in adjudicatory decisions. Fleming v. Tacoma, supra. Under the appearance of fairness doctrine, this court has required that the decisionmaking process "not only [be] fair in substance, but fair in appearance as well." Smith v. Skagit Cy., supra at 739. The purpose and scope of the doctrine was explained in Chrobuck v. Snohomish Cy., 78 Wn.2d 858, 868, 480 P.2d 489 (1971):
[T]he evil sought to be remedied lies not only in the elimination of actual bias, prejudice, improper influence or favoritism, but also in the curbing of conditions which, by their very existence, tend to create suspicion, generate misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or prejudgment over the proceedings to which they relate.
The intent of the doctrine is to maintain public confidence in quasi-judicial decisions made by legislative bodies. Westside Hilltop Survival Comm. v. King Cy., 96 Wn.2d 171, 181, 634 P.2d 862 (1981) (Rosellini, J., concurring).
This case, however, does not implicate the appearance of fairness doctrine.[1] The determination of where to place a road has traditionally been a distinctly legislative decision. RCW 36.75.140; State ex rel. Schroeder v. Superior Court, 29 Wash. 1, 69 P. 366 (1902). The statutory responsibility for developing a 6-year plan vests in the Board as a "legislative authority". RCW 36.81.121. Moreover, the appearance of fairness doctrine has never applied to such *659 legislative decisions.[2]See Fleming v. Tacoma, supra at 297; see also Laws of 1982, ch. 229. We hold, therefore, that the issue of where to locate a highway interchange is a legislative decision and the appearance of fairness doctrine does not apply.
[5] Appellants argue that the placement of the interchange is an adjudicatory decision because there are two readily identifiable competing interest groups here. The adversarial character of the public hearing was incidental, however, to its purpose. The purpose of the public hearing was to provide a forum for public participation, not to frame the debate for two self-appointed litigants. The Board's responsibility was not to decide which of the two groups (appellants or intervenors) made the best argument; its task was to decide which interchange location was in the best interest of the county. If its decision were not arbitrary or capricious, the Board could have chosen a location proffered by neither of the competing interest groups. Posing the problem in an adversarial manner does not change the essentially legislative character of the decision.
All policy decisions are the result of balancing the entirety of discrete individual rights in the community. It is not surprising that two groups may make a legislative decision appear adjudicatory by focusing the decision makers on how the decision will affect their individual rights. This does not make the decisions adjudicatory, however. See Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U. Pa. L. Rev. 485, 504 (1970).
Appellants also argue that the statutory requirement of *660 "one or more public hearings" as a precondition to adopting a 6-year road plan, RCW 36.81.121, renders the Board's decision quasi judicial. While a public hearing is a requirement for an adjudicatory decision by legislative body, all statutory public hearings do not involve quasi-judicial decisions. For example, the adoption of a comprehensive zoning plan involves statutory public hearings, RCW 36.70.380, but the decisionmaking body nevertheless acts in a legislative, "policy making capacity." Fleming v. Tacoma, supra at 299.
A statutory public hearing by a legislative body is not the talisman for invoking the appearance of fairness doctrine. If it were, we would unfairly constrain the Legislature in its attempt to provide opportunities for public participation in legislative decisions. If by requiring a public hearing the Legislature would implicitly force its subdivisions to adhere to a full panoply of adjudicatory safeguards, it might well decide to eliminate such hearings altogether. Prior cases should not be interpreted as indicating that a decision becomes quasi judicial and triggers the appearance of fairness doctrine by the mere fact that a hearing is required by statute. See Polygon Corp. v. Seattle, 90 Wn.2d 59, 67-68, 578 P.2d 1309 (1978).
II
[6] Having concluded the Board's decision is legislative, we are not relieved from examining the fairness of the legislative decisionmaking process, but our inquiry is limited. As we stated in Fleming v. Tacoma, 81 Wn.2d 292, 297, 502 P.2d 327 (1972):
[W]e have refrained from such an examination [of the motives] of legislative bodies, i.e., boards of county commissioners or city councils, when acting pursuant to statutes regulating zoning. We have held that while so acting they are exercising legislative powers and therefore we will not, in the absence of fraud, inquire into the motives of their members.
A court may overturn an exercise of legislative authority only for manifest abuse of discretion, such as arbitrary or *661 capricious conduct. Duckworth v. Bonney Lk., 91 Wn.2d 19, 586 P.2d 860 (1978); Buell v. Bremerton, 80 Wn.2d 518, 495 P.2d 1358 (1972). Given this framework, we now address appellants' fairness claims.
Appellants first claimed the trial court erred in refusing to admit evidence concerning the prejudgment bias of certain county commissioners. As we stated above, such a predisposition is an inherent part of the political process. Appellants' recourse is through the electoral process, not judicial review of the motives of one acting in a legislative capacity. The trial court committed no error.
Appellants also claim the hearings were procedurally unfair because the County allegedly failed to adequately define the issues in providing notice of the hearings. The record discloses, however, that all statutory notice requirements were followed. The notice advised the public that the meeting was to "hear specifically the Road 100 question". While it did not specifically mention the Road 116 location, given the history of this dispute, the notice was undoubtedly adequate to serve its purpose. The transcript of the hearing illustrates that those attending were not in any way misled by the terminology in the notice. Thus, this fairness objection is without merit.
[7] Next, appellants claim they were denied the right of cross examination and rebuttal. As to the cross examination claim, appellants rely on Chrobuck v. Snohomish Cy., 78 Wn.2d 858, 480 P.2d 489 (1971) in which the court permitted cross examination in a rezoning context. While this case is ostensibly similar to Chrobuck in that counsel were present at the hearing and expert reports were given regarding technical matters, it is materially different because the decision in Chrobuck was quasi judicial. See Fleming v. Tacoma, supra. Here, the decision was legislative. There is no inherent right to cross-examine at a legislative hearing, and there is no precedent for granting participants such a right. Thus, the Board properly denied appellants' request.
On the rebuttal issue, appellants claim the Board's time *662 restriction on submitting additional evidence to only 2 days after the hearing denied them adequate opportunity for rebuttal. While this period was admittedly short, the issues had been framed for some time. In addition, the Board had to render its recommendation to the Department of Transportation in order to save the entire project. Under these circumstances, the time limit was not unreasonable.
Finally, appellants claim the Board manipulated the order of presentation of the evidence to deny them due process. Even assuming, arguendo, their claims were true, appellants had no right to a particular order of presentation. The Board's actions at the hearing were reasonable. All citizens desiring to speak were given an opportunity to do so, and no time constraints were imposed. Moreover, the record does not indicate an attempt by the Board to circumvent the fair presentation of evidence.
To summarize, given the nature of the decision made, the public hearing held on August 21, 1979, was conducted fairly. The commissioners followed reasonable procedures and admitted all relevant evidence. To the extent any commissioners were predisposed to decide one way or the other, they did not impose their point of view upon the public hearing. The predisposition of the commissioners, if any, is not a demonstration of unfairness in this context. The political process involves elected officials taking positions on policy decisions they will face. Appellants' fairness claims are without merit.
III
Appellants also claim the Board failed to comply with SEPA procedures by failing to "complete an environmental check list, make a threshold determination, or determination of lead agency prior to its act in changing the location of the interchange". Reply Brief of Appellants, at 8. This argument is without merit.
RCW 43.21C.030(2)(c) requires "all branches of government of this state" to include an EIS for "every recommendation or report on proposals for legislation and other *663 major actions significantly affecting the quality of the environment". However, WAC 197-10-200 states the "lead agency shall be the only agency responsible for complying with the threshold determination procedures ...", and the lead agency shall be responsible for the draft and final EIS. The history of this project indicates the Department of Transportation, not the Franklin County Board, is the lead agency and therefore "responsible" for further action under SEPA if it should be necessitated.
In 1979, the Superior Court held that the Franklin County Board of Commissioners was not required to prepare an EIS in support of its recommendation of the Road 100 interchange on the grounds that the I-182 highway system was a project of the State Department of Transportation. This decision was not appealed. In 1980, the Superior Court ruled its prior decision was res judicata on the issue of the County's duty to comply with SEPA. We agree. See Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 588 P.2d 725 (1978).
The trial court's ruling that the County need not prepare an EIS for the interchange does nothing to relieve the Department of Transportation of its duties as the lead agency, however. The location of the interchange has changed and years have passed since the final EIS for the Road 100/116 corridor was completed. Therefore it is incumbent upon the Department of Transportation to determine if a supplemental EIS pursuant to WAC 197-10-495 or WAC 197-10-695 is required, or if the existing final EIS may be used for the County's new recommendation pursuant to WAC 197-10-660.
[8] Contrary to appellants' assertion, the County's approval of the 6-year road plan does not require compliance with SEPA. The 6-year road plan provides perpetual advanced plans for a coordinated road program. RCW 36.81.121. The plan establishes guidelines, but it may be revised at any time, provided a public hearing is held. RCW 36.81.121. Like a comprehensive zoning plan, it is advisory rather than regulatory. See Westside Hilltop Survival *664 Comm. v. King Cy., 96 Wn.2d 171, 634 P.2d 862 (1981). It is not a proposal for an action affecting the environment. See RCW 43.21C.030(2)(c).
IV
Finally, appellants claim that under the standard of judicial review for writs of certiorari, RCW 7.16.120(5), the Board's decision to recommend the Road 100 intersection is not supported "by a preponderance of ... competent proof". Brief of Appellants, at 27.
Since we have concluded the Board's decision is legislative, review of the Board's action under RCW 7.16.120 is inappropriate. Only upon showing of lack of jurisdiction, failure to adhere to procedural requirements, or action arbitrary, capricious or contrary to law should the presumption of legislative validity be defeated. See Williams v. Seattle Sch. Dist. 1, 97 Wn.2d 215, 643 P.2d 426 (1982); Selde v. Lincoln Cy., 25 Wash. 198, 65 P. 192 (1901). None of these circumstances is indicated here.
We affirm the trial court in all respects.
WILLIAMS, C.J., and ROSELLINI, STAFFORD, DORE, DIMMICK, and PEARSON, JJ., concur. UTTER, J. (concurring)
I do not disagree with the result reached by the majority but would take this occasion to disavow our so-called appearance of fairness doctrine.
The majority recognizes that fairness is fundamental to any proceeding, requiring impartiality and lack of bias of all decision makers in an adjudicatory situation. It also rejects, as it must, our previous rationale that the appearance of fairness doctrine is triggered by the fact that a hearing is required by statute. (See majority, at 660.)
Our cases reveal two primary components of the appearance of fairness doctrine. We have first imposed certain procedural protections typical of adjudicatory proceedings, see Smith v. Skagit Cy., 75 Wn.2d 715, 453 P.2d 832 (1969) such as cross examination, Chrobuck v. Snohomish Cy., 78 Wn.2d 858, 480 P.2d 489 (1971), findings of fact and conclusions, *665 Parkridge v. Seattle, 89 Wn.2d 454, 464, 573 P.2d 359 (1978), and verbatim transcripts, Barrie v. Kitsap Cy., 84 Wn.2d 579, 587, 527 P.2d 1377 (1974), to accompany the statutorily required public hearing. We have also required those who support a rezone to carry the burden of proof. Parkridge, at 461. Second, we have permitted inquiry into the motives and interests of the decision maker. Just as we, as judges, are subject to certain per se rules of disqualification for such things as financial interest and prejudgment bias, see Code of Judicial Conduct, Canon 3(C), we have imposed similar constraints in rezoning decisions that were deemed essentially adjudicatory. Cases in which we have invoked the doctrine because of the financial interest of the decision maker are: Save a Valuable Env't v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978); Swift v. Island Cy., 87 Wn.2d 348, 552 P.2d 175 (1976); Narrowsview Preserv. Ass'n v. Tacoma, 84 Wn.2d 416, 526 P.2d 897 (1974); Fleming v. Tacoma, 81 Wn.2d 292, 502 P.2d 327 (1972); Buell v. Bremerton, 80 Wn.2d 518, 495 P.2d 1358 (1972); Chrobuck. See also Byers v. Board of Clallam Cy. Comm'rs, 84 Wn.2d 796, 529 P.2d 823 (1974) (financial interest too attenuated to establish violation of doctrine). Cases in which prejudgment bias was demonstrated are: Swift; Anderson v. Island Cy., 81 Wn.2d 312, 501 P.2d 594 (1972). But see Fleck v. King Cy., 16 Wn. App. 668, 558 P.2d 254 (1977) (disqualification because board members were married without showing of prejudgment bias).
Analogy to the Code of Judicial Conduct is an important guide and limitation on the scope of the appearance of fairness doctrine. A judge should disqualify him or herself when his or her "impartiality might reasonably be questioned", CJC 3(C)(1), where he or she "has a personal bias or prejudice concerning a party", CJC 3(C)(1)(a), or if the judge knows he or she has a financial or other interest that "could be substantially affected by the outcome of the proceeding", CJC 3(C)(1)(c). (Italics mine.) A judge must actually be biased and actually have a financial interest for impartiality to be reasonably questioned. Judges, however *666 regrettable may be the truth, are not completely insulated from the world. Each judge brings to the bench his or her personality and philosophical disposition toward the world. If objectivity requires more, certainly that is not what we seek in judges. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Laird v. Tatum, 409 U.S. 824, 835, 34 L.Ed.2d 50, 93 S.Ct. 7 (1972) (memorandum of Rehnquist, J.).
While a judge may be capable of rendering a fair determination even though he or she has a personal bias or financial interest, we require disqualification to ensure fairness. At the same time, "a party's unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute-resolving tribunals." Andrews v. Agricultural Labor Relations Bd., 28 Cal.3d 781, 792, 623 P.2d 151, 171 Cal. Rptr. 590 (1981). We must presume that judges are capable of finding adjudicative facts fairly while ignoring incidental influences. If such a presumption cannot be made, the administration of justice is not possible.
In characterizing rezoning and other localized land use decisions as quasi adjudicatory, we have imposed constraints on decision makers in that context similar to those we would impose on judges.[3] Concern for fairness should not impose more or less constraints on legislative bodies rendering quasi-adjudicatory decisions.[4]
*667 While I agree with the fairness elements of which our doctrine is comprised, these elements indicate the doctrine's title is misleading. We have used the doctrine to impose procedural protections upon quasi-judicial proceedings of legislative bodies and to make such decision makers subject to the laws of prejudgment bias and pecuniary interest. These requirements are fundamental to the fairness needed for such individualized proceedings. Meeting these requirements establishes fairness, and we need not clothe them in the vague language of the "appearance of fairness".[5] To the extent the doctrine has been used to *668 afford a speculative and conjectural fairness inquiry that extends beyond these requirements, I would disapprove of it. See Fleck. Such speculation has led to our own doubts about the jurisprudential basis of the doctrine, see Bellevue v. King Cy. Boundary Review Bd., 90 Wn.2d 856, 586 P.2d 470 (1978) (wherein the court in dicta stated the appearance of fairness doctrine is not constitutionally based) and to a general misunderstanding about the doctrine's scope.
The factors previously discussed define fairness and the due process that must be afforded those subject to quasi-judicial individualized land use decisions of legislative bodies. By abandoning the caption "appearance of fairness", this court could establish a fairness inquiry that is rooted jurisprudentially, is a tool to be used by litigants, the court and legislative bodies, and which provides certainty where there has been little in the past. By calling our inquiry "fairness", we remove the confusion inherent with the "appearance of fairness" doctrine.
DOLLIVER and DIMMICK, JJ., concur with UTTER, J.
NOTES
[1] Recently, the appearance of fairness doctrine has been harshly criticized. See Alkire, Washington's Super-Zoning Commission, 14 Gonz. L. Rev. 559 (1979); Vache, Appearance of Fairness: Doctrine or Delusion?, 13 Willamette L.J. 479 (1977); Comment, Public Hearings An Appearance of Fairness, 5 Gonz. L. Rev. 324 (1970). While we perceive the need for review and clarification of the doctrine's scope, see, e.g., Fleck v. King Cy., 16 Wn. App. 668, 558 P.2d 254 (1977), we refrain from addressing the issue here as it is not necessary for a determination of this case. See Johnson v. Morris, 87 Wn.2d 922, 931, 557 P.2d 1299 (1976); 21 C.J.S. Courts § 182 (1940).
[2] In Smith v. Skagit Cy., 75 Wn.2d 715, 453 P.2d 832 (1969), the first case to enunciate the appearance of fairness doctrine, the rezoning decision was referred to as a legislative act. Subsequent cases clarifying the applicability of the doctrine, however, have recognized that the rezoning of specific tracts is adjudicatory in nature, not legislative. See Fleming v. Tacoma, supra at 301 (Neill, J., concurring); Save a Valuable Env't v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978). Thus, the statement in Smith is explained by the fact that the case preceded the adoption of the term quasi judicial to identify adjudicatory decisions by legislative bodies; it does not reflect an application of the doctrine to legislative decisions.
[3] Of course, judges are also subject to challenges based on affidavits claiming prejudice which need not show actual bias. RCW 4.12.050. This limited statutory privilege, which a litigant may exercise only once in a proceeding, is extended to litigants in judicial proceedings where more than one judge is available. Such a safeguard should not be imposed on legislative bodies rendering quasi-judicial decisions. The doctrine of necessity, if nothing else, dictates legislative bodies cannot be made the subject of such preemptive challenges.
[4] Viewing the appearance of fairness doctrine in this light, some of the inconsistencies in our application of the doctrine can be made more understandable. In King Cy. Water Dist. 54 v. King Cy. Boundary Review Bd., 87 Wn.2d 536, 554 P.2d 1060 (1976) we assumed the appearance of fairness doctrine applied to boundary review board proceedings. The board is a manifestation of the Legislature's control over its subdivisions and its functions are administrative. The Legislature has provided elaborate procedural protections for this administrative process, and review of the board's decision was guided under the terms of the statute. RCW 36.93.100, .160. In that context, there was no need to invoke the "appearance of fairness" doctrine to provide the necessary process to be afforded in a legislative context that we consider quasi-judicial. The statute itself made the board's decision quasi-judicial, and provided a comprehensive method of review, which comported with administrative due process. To the extent Bellevue v. King Cy. Boundary Review Bd., 90 Wn.2d 856, 586 P.2d 470 (1978) indicates otherwise, I would change it. The fairness inquiry in that case might well have been appropriate, but the invocation of the "appearance of fairness" was unnecessary where the statute provided the terms of administrative due process.
In Polygon Corp. v. Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978) we held the appearance of fairness doctrine was inapplicable to administrative decisions such as those involving building permit applications. The court held actual partiality was a relevant basis for reversal. As stated here, actual partiality is the basis for reversal under the principles of fairness that apply to quasi-judicial decisions of legislative bodies such as those concerning building permit applications.
Finally, while administrative due process must surely be accorded individuals subject to administrative adjudications such as that reviewed in Chicago, M., St. P. & Pac. R.R. v. State Human Rights Comm'n, 87 Wn.2d 802, 557 P.2d 307 (1976), our fairness inquiry here has been wrought in a different context and is only helpful by way of analogy to an understanding of administrative due process. See State ex rel. Beam v. Fulwiler, 76 Wn.2d 313, 456 P.2d 322 (1969).
[5] This is not to say "fairness" does not include an implicit concern for the "appearance of fairness." By securing procedural safeguards for quasi-judicial decisions such as cross examination, a verbatim transcript, and a ban on improper ex parte contacts, we do not say that without such safeguards the result would necessarily be unfair. These safeguards simply insure the best possibility of a fair result. The same is true of a decision maker with financial interest. We cannot say that such a person is incapable of rendering a fair decision, but by requiring his or her disqualification we provide the best possibility that a fair result will ensue. Fairness in quasi-judicial decisions always includes a concern for the appearance of fairness, but it does not include speculative claims of injustice which we as judges would not countenance with respect to our own judicial proceedings.
| {
"pile_set_name": "FreeLaw"
} |
587 F.Supp. 974 (1984)
Brian H. ARTHUR, Plaintiff,
v.
FLORIDA DEPARTMENT OF TRANSPORTATION and Highlands County, Defendants.
No. 84-8083-CIV-JAG.
United States District Court, S.D. Florida, N.D.
July 2, 1984.
Peter Martin, Sarasota, Fla., for plaintiff.
Linda Miklowitz, Tallahassee, Fla., for Fla. Dept. Transp., Bert Harris III, Lake Placid, Fla., David Cooney, Ft. Lauderdale, Fla., for Highlands County.
GONZALEZ, District Judge.
Plaintiff Brian Arthur, a citizen of the State of Ohio, sustained injuries after his automobile was hit by an oncoming car that had left the paved highway "due to the negligent construction and maintenance of that roadway." Mr. Arthur brought this suit against the Florida Department of *975 Transportation ("DOT") and Highlands County for their alleged negligence. The DOT now moves to dismiss plaintiff's complaint (docket # 5). The court has considered the motion, and being otherwise duly advised, it is ORDERED AND ADJUDGED that the motion to dismiss be GRANTED as to the Florida Department of Transportation for the reasons set forth below.
The eleventh amendment to the United States Constitution provides that
[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. CONST. amend. XI.
According to a well-defined body of law, the amendment stands for the proposition that an unconsenting state is immune from suits brought in federal court by citizens of other states. See, e.g., Pennhurst State School & Hospital v. Halderman, ___ U.S. ___, ___, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). This limitation on federal jurisdiction derives from the fundamental principle of sovereign immunity. Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921). The jurisdiction-limiting function of the eleventh amendment would appear to apply where, as here, a citizen of the State of Ohio has sued an authorized department of the State of Florida.
A sovereign's immunity may be waived provided she has unequivocally expressed a willingness to be sued. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) ("we will find waiver only where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction").
In this case, plaintiff sues the DOT for injuries indirectly caused by the Department's alleged negligence in designing, constructing, and maintaining the shoulder of a state road. The DOT seeks the dismissal of plaintiff's suit because the state has not expressly consented to be sued. Although section 768.28, Fla.Stat.,[*] waives the sovereign immunity of the State or any of its "agencies or subdivisions" for tort suits in an "appropriate forum," no specific mention is made, as required by law, of tort suits in federal court.
Even if the state has not expressly consented to suit in federal court, this court still might have jurisdiction if the *976 DOT is not a political subdivision of the state. "[T]he nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding." Ford Motor Co., 323 U.S. at 464, 65 S.Ct. at 350. In this case, plaintiff submits that the Department is an independent juridical entity because it has the capacity to sue and be sued. But in Florida Department of Health v. Florida Nursing Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1980), the Supreme Court expressly rejected this reasoning. Id. at 149-50, 101 S.Ct. at 1033-34. Plaintiff also argues that the DOT is susceptible to suit in this court because other federal courts have held other departments of other states susceptible to suit in a diversity action. See, e.g., C.H. Leavell & Co. v. Board of Commissioners, 424 F.2d 764 (5th Cir.1970). The connection between those other decisions and the instant case is tenuous, at best. All of the cases cited by plaintiff define what constitutes a citizen for purposes of diversity, and do not address whether the state has expressly consented to suit in federal court. Furthermore, these other cases do not interpret section 768.28, Fla.Stat. (West Supp.1984), which is at issue in this case. None of these other cases analyze the Florida Department of Transportation, which is the political subdivision examined herein. Finally, plaintiff's suit can reasonably be construed as against the sovereign because "the judgment would expend itself on the public treasury or domain, or interfere with the public administration," or possibly "restrain the [state] from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963).
NOTES
[*] Florida statute § 768.28 provides in pertinent part:
(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued.
(2) As used in this act, "state agencies or subdivisions" include the executive departments, the Legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.
....
(11) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that with respect to any action for contribution, the action must be commenced within the limitations provided in s. 768.31(4).
| {
"pile_set_name": "FreeLaw"
} |
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Agile RF, Inc. ) ASBCA Nos. 59406, 59407
)
Under Contract Nos. W15P7T-04-C-P424 )
W15P7T-06-C-P421 )
H94003-06-C-0606 )
H94003-06-C-0611 )
Wl5P7T-06-C-T211 )
W911QX-06-C-0137 )
N68335-08-C-0058 )
APPEARANCES FOR THE APPELLANT: Lisa M. Marchese, Esq.
Traeger Machetanz, Esq.
Davis Wright Tremaine LLP
Seattle, WA
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Robert L. Due caster, Esq.
Trial Attorney
Defense Contract Management Agency
Chantilly, VA
ORDER OF DISMISSAL
The dispute has been settled. The appeals are dismissed with prejudice.
Dated: 28 July 2015
Administrative Judge
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 Nos. 59406, 59407, Appeals of Agile RF,
Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2
| {
"pile_set_name": "FreeLaw"
} |
824 F.Supp. 1327 (1993)
Darrel Wayne HILL, Petitioner,
v.
A.L. LOCKHART, Director Arkansas Department of Correction, Respondent.
Civ. No. PB-C-82-375.
United States District Court, E.D. Arkansas, Pine Bluff Division.
June 23, 1993.
*1328 *1329 *1330 Ray E. Hartenstein, Ark. Death Penalty Resource Center, Inc., Little Rock, AR, for petitioner.
Jack Ward Gillean, Atty. Gen.'s Office, Little Rock, AR, for respondent.
MEMORANDUM OPINION AND ORDER
HOWARD, District Judge.
On July 11, 1980, a jury convicted petitioner Darrel Wayne Hill ("Hill") of capital felony murder, kidnapping and aggravated robbery in connection with the death of Donald Lee Teague. Hill was sentenced to death in connection with the capital felony murder and 50 years each on the other felonies. The jury also convicted Hill of attempted capital murder, kidnapping and aggravating robbery in connection with offenses against E.L. Ward. Hill was sentenced to life, and fifty years each respectively with regard to those offenses. Hill has filed a petition for writ of habeas corpus, raising thirteen separate grounds for relief.
Factual Background
In the afternoon of February 7, 1980, Hill drove into E.L. Ward's Service Station in Pencil Bluff, Arkansas. Ward checked Hill's radiator and filled his car with gas. A little later, Donald Teague, an Arkansas Game and Fish Commission officer, drove into the station, also wanting gas. Ward went inside the garage to clear the pumps. Hill, who was waiting inside the garage, pulled a gun on Ward and demanded his money. Hill then ordered Ward to put the money from the cash register into a money bag along with his wallet. Teague entered the garage at this time, and Hill pointed the gun at Teague, told him to put his billfold in the money bag and told both men that they were going for a ride.
Hill ordered Teague to drive the car and Ward to bring the money bag. While in the car, Hill took the money from Ward's wallet and put it in his pocket. Hill ordered Teague to drive to a gravel road off the main highway. Hill had Teague stop the car, directed Teague and Ward into some weeds and forced them to lie down on their stomachs with their hands behind them. Hill shot Teague several times, killing him. Ward begged Hill to quit shooting, but Hill then shot Ward four times, wounding him. Ward remained in the weeds, not moving, until Hill had driven away. Ward then crawled back to the road, where he was found later that afternoon. Ward gave the police a description of his assailant and the car he was driving as Ward was taken to the hospital in Hot Springs.
A few hours later, a Hot Springs police officer saw a car matching the description. He stopped the vehicle at about the same time another officer arrived as back up. A search of the car yielded a brown paper sack containing a loaded Charter Arms .38 special and a large quantity of coins under the front seat on the driver's side. Hill was arrested and charged with the offenses of which he was ultimately convicted.
Hill appealed his convictions and sentences to the Arkansas Supreme Court. The court affirmed the conviction and sentence for capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with the offenses against Teague. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). The court found that Ark.Stat.Ann. § 41-105(1)(a) and (2)(a) (Repl.1977) (now codified as Ark.Code Ann. § 5-1-110 (1987)) prohibits the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies.[1]
*1331 The United States Supreme Court denied Hill's petition for writ of certiorari on October 4, 1982. Hill v. Arkansas, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982).
Hill then sought post-conviction relief from the Arkansas Supreme Court pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The petition was denied, but the court set aside the convictions of kidnapping and aggravated robbery underlying the attempted capital murder conviction. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).
Prior to filing his Rule 37 petition, Hill had filed a petition for writ of habeas corpus. Once Hill exhausted his state remedies, the Court entered an order staying execution. Hill filed an amended petition for writ of habeas corpus on April 7, 1989.[2] The Court conducted an evidentiary hearing on October 31, and November 1, 1990. The Court will address the claims raised in the amended petition.
Discussion
I. Hill argues that the Arkansas death penalty statute is unconstitutional because the capital felony murder statute (Ark. Stat.Ann. § 41-1501 (Repl.1977) now codified as Ark.Code Ann. § 5-10-101(a)(1) (1987)) overlaps with the first degree felony murder statute (Ark.Stat.Ann. § 41-1502(1)(a) (Repl.1977) now codified as Ark.Code Ann. 5-10-102(a)(1) (1987)) and there are no standards to distinguish the two offenses thereby leading to the possibility that the jury's decision will be arbitrary and capricious.
The Arkansas Supreme Court rejected this argument, noting that the same argument had been rejected in other cases. Hill, 278 Ark. at 202, 644 S.W.2d 282. Recently, the Eighth Circuit held that the overlapping capital felony murder and first-degree felony murder statutes are not unconstitutionally vague. Simpson v. Lockhart, 942 F.2d 493 (8th Cir.1991). The court found that "each statute unambiguously specifies the conduct prohibited and the penalties authorized upon conviction. This satisfies the fair notice requirements of the due process clause." 942 F.2d at 497.
The Court finds that the death penalty statute is not unconstitutionally vague or denies Hill equal protection because it overlaps with the first degree felony murder statute.
II. Hill contends that he was denied his right to a fair trial because the trial court denied his motion for change of venue based on pretrial publicity.
A hearing on Hill's motion for change of venue was held prior to trial. Defense counsel introduced the testimony of six witnesses who testified that they did not think Hill could receive a fair trial in Montgomery *1332 County.[3] The state presented three witnesses who testified that they believed Hill could receive a fair trial.
The court, after considering the testimony, affidavits, and newspaper articles, found that Hill had not met his burden of demonstrating county-wide prejudice and denied the motion.
Defense counsel renewed the motion for change of venue at the beginning and end of voir dire. Counsel also requested that the voir dire be made part of the record on the motion.[4]
On appeal, the Arkansas Supreme Court found that the trial court had not abused its discretion in denying the motion for change of venue. 275 Ark. at 83, 628 S.W.2d 284. The trial court's determination as to the jury's impartiality is entitled to deference and can be overturned only for "manifest error." Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888, 81 L.Ed.2d 847 (1984) (trial judge's finding that a particular venire person was not biased and there-fore properly seated is finding of fact subject to 28 U.S.C. § 2254(d)).
The trial court in this case conducted a general voir dire, and then the parties conducted individual voir dire. Two prospective jurors, Hicks and Goss, were excused for cause during the general voir dire because they had fixed opinions regarding Hill's guilt which they could not set aside (Tr. 455). Sixty-six prospective jurors were examined during the individual voir dire. Of those, thirty-five were excused for cause, although not all because they had formed an opinion. A number of prospective jurors had a close relationship or friendship with E.L. Ward which affected their ability to be impartial (e.g., Maurine West, Tr. 516; Mary Lewis, Tr. 755; Edith Chambers, Tr. 909). Pearl Block was excused because her husband was a friend of Teague (Tr. 965). Prospective jurors McKinney and Scantling were excused for medical reasons (Tr. 572, 833). Wilma Lewis was excused on Witherspoon grounds (Tr. 876).
The record establishes that the jurors who were seated demonstrated that they could be fair and impartial. Bill Turpin knew Ward for 15 to 20 years but stated that he had no opinion as to Hill's guilt (Tr. 533). Laura Brandon also had no opinion, and she had not read or heard much about the case (Tr. 592). Similarly, Lelia Lewis had no knowledge of the facts of the case or the persons involved (Tr. 616). Jo Ellen Carmack also knew Ward, but assured the court that she could set aside her feelings and listen to the evidence (Tr. 737). James Fryar had read news accounts but had no opinion as to Hill's guilt (Tr. 742). Glenn Gaston was a friend of Ward and had read about the case, though he had not formed an opinion as to Hill's guilt. He assured the court that he could set aside what he had heard and base his verdict on the evidence (Tr. 755). Lillian Adams and Wanda Reed both had read or heard about the case but neither had formed opinions, and stated that they could put aside what they had heard (Tr. 770, 847). Opal Warren did not know much about the case and had not formed an opinion (Tr. 891). Betty Carter was acquainted with Ward, had read about the case and talked with others about it. However, she stated that she had not formed any opinion and assured the court that she could set aside what she had heard and give Hill a fair trial (Tr. 913-918). Barbara Buck had an opinion but stated that she would base her verdict solely on the evidence (Tr. 922). Mary Lee Harper indicated that she had formed an opinion about the case, but after extensive questioning assured the *1333 court that she could be fair and impartial (Tr. 951-963).
Jurors are not required to be totally ignorant of the facts and issues involved in a case. See Simmons v. Lockhart, 814 F.2d 504, 510 (8th Cir.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988) ("The accused is not entitled to an ignorant jury, just a fair one.") "[A]n important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
The Court, in Irvin, refused to adopt a standard that any preconceived opinion as to a defendant's guilt or innocence, without more, would be sufficient to rebut the presumption of a prospective juror's impartiality. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." 366 U.S. at 723, 81 S.Ct. at 1643.
Here, the record establishes that the court, along with counsel, conducted a thorough voir dire. Those prospective jurors who had set opinions that they could not set aside were excused for cause. The jurors that were seated had adequately assured the court that they could set aside their opinions and base their verdict solely on the evidence.
Furthermore, the record does not reveal "the kind of `wave of public passion' that would have made a fair trial unlikely by the jury that was empaneled as a whole." Patton v. Yount, 467 U.S. at 1040, 104 S.Ct. at 2893. The adverse publicity had occurred within the first few weeks following the arrest of Hill, and by the time of the trial, community discussion had diminished considerably.
The Court finds that the trial court did not commit manifest error in denying Hill's motion for change of venue.
III. and IV. Hill contends that he was denied his Fifth, Eighth, And Fourteenth Amendment rights and his right to a fair trial on the issue of punishment because of the trial court's failure to grant a severance of offenses and its improper submission of the lesser included offenses to the jury as separate, substantive offenses at the guilt stage and subsequently for punishment at the sentencing phase. In addition, Hill states that the prosecutor improperly argued that the jury should consider his prior criminal record in determining his punishment when Hill did not put his prior criminal record in issue.[5]
As noted above, the underlying felony convictions of kidnapping and aggravating robbery were set aside by the Arkansas Supreme Court as violative of Ark.Stat.Ann. § 41-105. The court refused to find that the erroneous submission of the underlying felony convictions prejudiced the sentencing procedure.
Hill combines several different arguments all of which go to the fairness of the sentencing procedure. Hill contends that the jury's improper consideration of enhanced punishment and the actual imposition of four enhanced sentences of fifty years for the lesser included offenses had a prejudicial impact on the jury's consideration of the appropriate punishment for the capital offense. Hill also contends that the prosecutor erroneously *1334 used the non-violent felonies to establish the absence of a mitigating factor.
To understand Hill's position, a review of the proceedings is necessary. After the jury returned verdicts on all six offenses, the court progressed to the sentencing proceedings.[6]
The state sought to introduce five previous felony convictions. Defense counsel objected, arguing that three of the felonies did not fall within the definition of a statutory aggravating circumstance. The prosecutor then stated that he was offering the three nonviolent felonies for enhancement purposes only with regard to the non-capital offenses, and not as a statutory aggravating circumstance. The trial court ruled that the three non-violent felonies would be admitted with a limiting instruction that they were not to be considered in connection with the punishment for capital murder (Tr. 1494-1512).
The prosecutor then changed tactics and indicated that he intended to argue that the three non-violent felonies were to be used to negate the mitigating circumstance of no significant prior criminal history by showing that Hill had a substantial criminal record.[7] In open court, the following exchange took place:
[Prosecutor]: Now it is applicable, Your Honor, or relevant that the State would say that the other offenses that have been introduced are now for the purpose of that tending to demonstrate that there is a substantial prior criminal record under the mitigating circumstances section.
The Court: I presume you are offering that?
[Prosecutor]: Yes, Your Honor.
The Court: All right, sir.
[Defense Counsel]: Your Honor, I would point out to the Court that that has not been brought into the issue of mitigation at all; that that is simply an indication of the aggravation and that the jury should be instructed to consider it only as aggravation and not at all as mitigation portion, whatsoever.
The Court: The jury will be instructed on the items of mitigation. If that is there, they will consider it if they so desire. If it is not a proper item of mitigation, then the State, excuse me, then the jury shall not consider it. It is up to the jury it is on the verdict form of the instructions I give them. I will so advise ...
Tr. 1531-1532.
Despite the clear law that the non-violent felonies could not be considered as an aggravating circumstance, the prosecutor continued to press for their consideration by the jury in its deliberation.[8] In closing argument *1335 during the penalty phase, the prosecutor stated:
On Form 2,[9]
... as to mitigating circumstances ... that is for your good judgment. I cannot find any. In fact the State would say to you that under 6, where it says Darrel Wayne Hill, has no significant, no significant history of prior criminal activities, I that if there was a sign, that said substantial significant history or prior criminal activities, you could check that. Here it says that he has no significant history and we show you five (5).
Tr. 1550.
The Arkansas Supreme Court rejected Hill's argument that the trial court erred in allowing the state to prove, during the penalty phase, three prior convictions that did not involve threat or violence. The court held that two separate hearings on sentencing when capital and non-capital offense are tried together is not warranted. It found that the jury was properly instructed regarding the use of the prior convictions. Hill, 275 Ark. at 86-88, 628 S.W.2d 284.
The Court agrees that the denial of a severance per se did not deprive Hill of a fair sentencing hearing. The Court, however, cannot agree that the prosecutor's use of three prior non-violent felonies to rebut a non-existent mitigating circumstance does not constitute constitutional error.
The Arkansas Supreme Court in Ford v. State, 276 Ark. 98, 104, 633 S.W.2d 3 (1982), cert. denied, 459 U.S. 1022, 103 S.Ct. 389, 74 L.Ed.2d 519 (1982) held that the trial court erred in allowing evidence during the sentencing phase of prior crimes that did not involve the use of threat of violence or create substantial risk of death or serious physical injury to another person as an aggravating circumstance. The use of such felonies was also not proper for the purpose of anticipating a showing of lack of convictions as a mitigating circumstance. The court went on, however, to hold that the improper admission of the felonies was not prejudicial because the jury did not find that the defendant had an aggravating circumstance of having a prior felony involving the use of or threat of violence to another person or involving the creation of substantial risk of death or serious physical injury to another person. That is, there is some evidence that the jury did not even consider the prior convictions.
Justice Hickman, in a strong dissent in Ford, contended that the use of the inadmissible prior convictions was prejudicial error. Because of the lack in the record of any evidence that the defendant had no significant history of prior criminal history, Justice Hickman noted that the trial judge should not have submitted the mitigating circumstance. He admonished the state's use of such evidence.
`In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.'
That is exactly what the State was able to do in this case.
Ford should pay for the crime he committed, but our system cannot allow him to pay a price that is not fairly set by an impartial jury considering only relevant evidence in an atmosphere devoid of passion and prejudice.
276 Ark. at 115, 633 S.W.2d 3 (citation omitted).
The use of the non-violent felonies is even more prejudicial in this case than in Ford. Unlike Ford, the record here does not establish that the jury did not consider the three non-violent felonies. Here, the jury specifically *1336 found the aggravating circumstance of a prior felony.
"Criteria set forth in the statute serve no purpose if prosecutors are free to ignore them." Ford v. Arkansas, 459 U.S. 1022, 1023, 103 S.Ct. 389, 390, 74 L.Ed.2d 519 (1982) (Marshall, J., dissenting). Here, the prosecutor attempted to get in through the back door what was clearly prohibited by the statute. Aggravating circumstances are limited to those set forth in the statute. To argue that the additional felonies were to be used to rebut the lack of prior criminal history was disingenuous when Hill had not offered any evidence in mitigation concerning the lack of a significant prior criminal history.
The Arkansas Supreme Court in Miller v. State, 269 Ark. 341, 354, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1750, 68 L.Ed.2d 232 (1981) recognized the problem and criticized the trial judges' practice of submitting to the jury in capital murder cases all seven of the statutory aggravating circumstances and all six of the enumerated mitigating circumstances.
We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury.
269 Ark. at 354, 605 S.W.2d 430.
The Court cannot conclude that the prosecutor's use of the three non-violent felonies was not prejudicial or harmless. See Ford, 459 U.S. at 1024, 103 S.Ct. at 390 ("There is certainly no basis for concluding beyond a reasonable doubt that the jury would have sentenced petitioner to death had it not been informed of his prior convictions.")
Nor is there any basis for finding that the error was harmless or that it did not have a substantial and injurious effect or influence[10] on the jury's decision because the jury found only aggravating circumstances but not mitigating ones. The jury must find not only that the aggravating circumstances outweigh the mitigating ones but that the former "justify a sentence of death beyond a reasonable doubt." Ark.Stat.Ann. § 41-1302(1)(c) (Repl.1977) (codified as Ark.Code Ann. § 5-4-603).[11]See Williams v. State, 274 Ark. 9, 12, 621 S.W.2d 686 (1981), cert. denied, 459 U.S. 1042, 103 S.Ct. 460, 74 L.Ed.2d 611 (1982) (court would not speculate as to what jury would do in death case if jury had found only two aggravating circumstances instead of three).
The prejudicial effect of the introduction of the felonies into the jury's deliberation during the penalty phase cannot be underestimated. As the Arkansas Supreme Court noted in Whitmore v. State, 296 Ark. 308, 316, 756 S.W.2d 890 (1988), the statute outlining the specific aggravating circumstances
is concerned with disclosing whether the defendant's history establishes such a propensity for violence that it will reoccur. Once the jury knows about a defendant's past propensity for violence, it can weigh that against any mitigating circumstances. In striking this balance the jury determines *1337 if the defendant has such a marked propensity for violence that it would likely manifest itself again in the future. If the jury determines beyond a reasonable doubt that the defendant will strike again, it may sentence him to death.
Here, the jury was provided additional evidence of Hill's criminal history which it could have factored in its weighing process. While the use of the three non-violent felonies alone constituted error, the inclusion for sentencing of the underlying felonies compounded the error. There can be no doubt that the submission of six felonies to the jury for sentencing created an inflammatory or impassioned atmosphere. The six felonies coupled with the introduction of the five prior felonies may have so inflamed or prejudiced the jury that it was left with the inevitable conclusion that Hill "will strike again."
Indeed, the record reflects that the jury did not entirely understand the instructions regarding sentencing and had to be returned to the jury room to fill out the jury forms. The court was informed that the jury had reached a verdict. The following exchange took place:
The Court: Sheriff, would you get those verdict forms, Mr. Gaston handed me the instructions please. Mr. Fryar, the Foreman is now handing the verdict forms to the Sheriff. Thank you very much. Mr. Fryar, the verdict that you have handed me is this the verdict of the jury?
Foreman: Yes sir.
The Court: You have reached a verdict?
Foreman: Yes sir.
The Court: Is this verdict or these verdicts that you have rendered, are they unanimous?
Foreman: Yes sir.
The Court: Thank you very much. Form 1 is signed by James R. Fryar, Foreman. Form 2, signed by James R. Fryar, Foreman ... if you will permit me and excuse me just a minute ... Verdict Form for Kidnapping of E.L. Ward.
"We, the Jury, find that Darrel Wayne Hill has been convicted or found guilty of four (4) or more previous felonies and fix his sentence at: ...
Gentlemen, this is an incomplete verdict form. All the verdict forms on, on the felonies other than capital felony murder are incomplete. The blanks to fill in the term of years has been left blank. Mr., You may sit down. Thank you very much. Mr. Fryar, did the jury in the kidnapping of E.L. Ward intend to return a verdict?
Mr. Fryar: (Foreman): Well, we must have misunderstood you. We thought we did, had.
....
The Court: Okay, for the record, let me exhibit and tell you what has happened. Would that be alright?
[Prosecutor]: I believe they need to retire.
[Defense Counsel]: I believe they should retire.
The Court: Okay, what has happened. Ladies and Gentlemen and perhaps I, I hope you haven't misunderstood. On the verdict forms on the kidnapping, aggravated robbery and attempted capital murder. The three (3) spaces, A, B, and C call for certain verdict to be filled in by you in those blanks that are there. The figures that I read to you underneath those blanks in parenthesis are for your limits, for you to decide. So if you have decided, what you need to do is retire and take these forms and fill in within the limits specified on them what you so desire and at this time I will deliver all of the verdict forms back to the jury and ask that you further retire and complete them. Is there any specific questions with respect to that? You understand what I am saying, Mr. Fryar?
Mr. Fryar: Yes sir, we do now. We do now.
Tr. 1558-1560.
In conclusion the Court finds that the prosecutor's argument along with the submission of the underlying felonies to the jury for sentencing constituted constitutional error. The error had a substantial and injurious effect or influence in the jury's determination that Hill should receive the death penalty.
*1338 The Court finds that Hill is entitled to relief with regard to the punishment stage on these grounds. As the Supreme Court in Mills v. Maryland, 486 U.S. 367, 383-84, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988) stated:
The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case. The possibility that petitioner's jury conducted its task improperly certainly is great enough to require resentencing.
V. Hill asserts that the trial court unconstitutionally commented on the evidence when it instructed the jury during the penalty phase that it could only consider the two robbery convictions as aggravating circumstances. He contends that the court's instruction amounted to instructing the jury that it was to accept the two robbery convictions as an aggravating circumstance.
As noted above the use of the non-violent felonies to negate a mitigating circumstance was prejudicial. It is also clear that confusion surrounded the penalty phase based on the above quoted portion from the transcript.
The Court, however, cannot find that the trial court's instruction was erroneous or that the trial court unconstitutionally commented on the evidence. The record shows that the jury was instructed that it "may" consider the robbery convictions as aggravating circumstances. The Court finds that this ground is without merit.
VI. Hill contends that his sentence was rendered in violation of the Fifth, Eighth, and Fourteenth Amendments because the jury arbitrarily and capriciously failed to consider relevant mitigating evidence demonstrating that Hill was suffering from extreme mental and emotional disturbance and also diminished capacity due to mental disease and drug and alcohol abuse. Respondent argues that this claimed barred by procedural default.
Even assuming that, Hill had presented this claim to the state court and that it is therefore properly before this Court, the Court finds that it is without merit.[12] The evidence concerning Hill's chronic alcohol and drug abuse was presented during the guilt phase to support Hill's defense of diminished capacity or insanity. As will be discussed, defense counsel presented virtually no evidence of mitigation during the penalty phase and made only slight reference to the earlier testimony concerning drug and alcohol dependence during his argument at the penalty stage (Tr. 1553).
That the jury did not find mitigating circumstances is not surprising given counsel's failure to effectively offer such evidence. See discussion infra. The Court, however, cannot find that the jury erred or acted arbitrarily and capriciously in failing to consider any mitigating evidence. Hill is not entitled to relief on this claim.
VII. Hill argues that one of the aggravating circumstances found by the jury, that the murder was committed for the purpose of avoiding a lawful arrest or effecting an escape from custody, has been given such a vague and overly broad interpretation as to lead to arbitrary and capricious sentencing in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
In Godfrey, the Supreme Court held unconstitutionally vague the aggravating circumstance that the offense committed was "outrageously or wantonly vile, horrible or inhuman." A state "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance,' and that `make rationally reviewable the process for imposing a sentence of death.'" 446 U.S. at 428, 100 S.Ct. at 1765 (citations omitted). An "aggravating circumstance must be described in `terms that are commonly understood, interpreted and applied.'" Newlon v. Armontrout, 885 F.2d 1328, 1334 (8th Cir.1989), cert. denied, 497 *1339 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990) (citation omitted).
The Court is not persuaded that the aggravating circumstance of "the murder was committed for the purpose of avoiding a lawful arrest or effecting an escape from custody" is vague, overly broad or capable of being misunderstood. Furthermore, as the Arkansas Supreme Court held, the facts of the case supported the finding of this particular aggravating circumstance. Hill v. State, 278 Ark. at 204, 644 S.W.2d 282 ("Under the facts of the case the jury was justified in finding that petitioner shot Teague and Ward to increase his chances of avoiding arrest after he had robbed Ward's service station.").
Hill is not entitled to relief on this ground.
VIII. Hill's eighth ground, challenging the constitutionality of the death qualified jury, is without merit in light of the Supreme Court's decision in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), rejecting the argument raised by Hill.
IX. Hill argues that the Arkansas death penalty statute is unconstitutional because it penalizes the exercise of one's Sixth Amendment right to trial by jury in that the death penalty can only be imposed by a jury and, therefore, one who exercises his right to trial by jury subjects himself to a possible sentence of death whereas one who pleads guilty cannot be sentenced to death.
This argument has been rejected by the Arkansas Supreme Court. Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).[13] In denying Hill's Rule 37 petition, the court found that the procedures governing jury trial in capital murder cases do not place an impermissible burden on the exercise of the right to trial by jury. The trial judge is not required to impose the death penalty in every case in which the jury prescribes it. Hill v. State, 278 Ark. at 197, 644 S.W.2d 282. See also Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (upholding constitutionality of New Jersey's sentencing scheme for first-degree murder). Hill is not entitled to relief on this ground.
X. and XI. Grounds X and XI are attacks on the constitutionality of the death penalty statute. In Ground X Hill asserts that the Arkansas death penalty statute, as applied since its enactment, has resulted in the arbitrary and capricious imposition of the death penalty upon only a few individuals. As the State notes, Hill's argument is so conclusory as to be impossible to answer. Indeed, Hill has not even briefed the argument in his post-hearing brief.
Hill has provided no support for his broad assertion that the Arkansas scheme results in the arbitrary and capricious imposition of the death penalty. The Court finds that Ground X is without merit.
In Ground XI Hill argues that his death sentence is cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments and deprives him of due process of law and equal protection of the laws. The State asserts that Hill has procedurally defaulted with regard to this issue.
Even assuming that the claim is not barred because of procedural default, the Court must conclude that it is without merit. The Arkansas death penalty statute has been found to be constitutional. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).
XII. Hill states that the imposition of the death penalty violated his rights under the Eighth and Fourteenth Amendments because the appellate court was not required to, and did not perform a comparative sentence review. According to Hill, the death sentence in this case is disproportionately severe in light of the circumstances of the case.
The United States Supreme Court has held that the Eighth Amendment does not require a comparative proportionality review of a death sentence in every case. Pulley v. *1340 Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Although not constitutionally mandated, the Arkansas Supreme Court did conduct a comparative sentence review in this case. In response to the issue raised in Hill's Rule 37 petition, the Arkansas Supreme Court stated:
On appeal from a sentence of death, it is the practice of this Court to compare the sentence with sentences in other cases in which the death penalty has been imposed. Collins, supra. Petitioner argues that in his case no comparative review was required or afforded by this Court, apparently because the opinion does not specifically state that it was.
While there is no absolute requirement under federal law that this Court make a comparative review of a death sentence, we have consistently afforded such review since Collins, although our opinions do not so state in all cases.
278 Ark. at 205, 644 S.W.2d 282.
The Court finds that Hill is not entitled to relief on this ground.
XIII. Hill argues that he was denied effective assistance of counsel at trial. In his amended petition, he outlines the areas in which counsel's performance was deficient.[14]
(1) Trial counsel failed to adequately prepare for trial or conduct any meaningful investigation of the case because:
(a) they did not adequately investigate and determine the relevant facts of the case;
(b) they did not interview or contact relevant witnesses for the state;
(c) they did not adequately determine and develop petitioner's version of the facts;
(d) they did not determine and investigate possible defense witnesses to develop a defense to the charge;
(e) they did not determine and investigate witnesses who could have been called at the sentencing phase of the trial to offer evidence in mitigation.
(2) Trial counsel had virtually no experience in and were not adequately versed in the law pertaining to capital cases nor the procedures by which such cases are tried. Such lack of knowledge and experience resulted in counsel's failure to raise issues crucial to petitioner's case and in their failure to protect petitioner from the improper application of the Arkansas death penalty statute.
(3) Counsel's inadequate preparation for a capital case resulted in their failure to raise by pretrial motions issues regarding the constitutionality of the Arkansas death penalty statute, on its face and in its application.
(4) Counsel failed to properly investigate and present qualified witnesses in support of petitioner's motion for change of venue.
(5) Counsel was further ineffective in not renewing the motion for severance of offenses and in not conducting proper research to present the obvious and proper reason for the granting of the motion for severance.
(6) Counsel failed to object to the State's amendment of the information to add the habitual offender charges to the non-capital felonies which resulted in the jury erroneously being presented with evidence *1341 of non-statutory aggravating circumstances at the penalty phase of the trial.
(7) Counsel was ineffective in failing to object to erroneous jury instructions and verdict forms submitted to the jury at both the guilt and sentencing phases of trial which erroneously allowed the jury to consider the lesser offenses of kidnapping and robbery as independent, substantive offenses and to impose punishment on those offenses contrary to Arkansas law.
(8) Counsel failed to request an instruction that according to Arkansas law, the jury could return a verdict of life imprisonment without parole despite making all the findings required for a sentence of death.
(9) Counsel failed to file a motion to have the jury's verdict set aside due to its improper refusal to consider evidence offered in mitigation.
(10) Counsel failed to investigate, research or prepare for the penalty phase of this case.[15]
In order to prevail on a claim of ineffective assistance of counsel, Hill must establish both that his trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). In a death penalty case, the Court must determine "whether, but for counsel's deficient performance, there is a reasonable probability the jury would have concluded the balance of the aggravating and mitigating circumstances did not warrant death." Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991).
Hill was charged on February 7, 1980, with the death of Teague and the shooting of E.L. Ward. Bill McKimm and John Peterson were appointed to represent Hill on February 13, 1980. In late March, Peterson was relieved as counsel and Bob Keeter was appointed as co-counsel.
McKimm was of the opinion that the state's case was strong due to the existence of Ward, an eyewitness, and concluded that an insanity defense was about "the only way to go" (H.T. 22, 27).
On February 22, 1980, counsel filed a petition raising the insanity defense and requesting a state hospital evaluation (Tr. 5). The trial court entered a commitment order on March 12, 1980 (Tr. 6).
By letter dated March 8, 1980, Hill provided defense counsel with information concerning his hospitalizations. (H.T. Petitioner's Exhibit 6). Counsel advised Dr. Oglesby of the Arkansas State Hospital where Hill was being evaluated of the prior hospitalizations, including the names of the treating physicians, and informed them where Hill's records could be obtained. Counsel also advised Dr. Oglesby of Hill's previous diagnosis of acute paranoid schizophrenia and that he had failed to take his anti-psychotic medication prior to the crime (H.T. Petitioner's Exhibit 7).
On April 17, 1980, counsel filed a motion requesting production of the Arkansas State Hospital records. On April 25, 1980, the trial court entered an order for production of the complete record of examination from the Arkansas State Hospital (Tr. 20).
McKimm testified at the evidentiary hearing that he received the Arkansas State Hospital records sometime after May 1, 1980 *1342 (H.T. 31, 32). The records from Arkansas State Hospital did not include any records of Hill's previous hospitalizations in Oklahoma.
At the May 22, 1980, omnibus hearing, counsel requested that the competency hearing be continued until they had received the medical records from Oklahoma (Tr. 128). The trial court indicated it would allow the defense to present at a later date any additional medical information they might obtain from the institutions (Tr. 128, 129).
The trial court determined that Hill was competent to proceed to trial (Tr. 140). After the court announced its ruling, defense counsel renewed a request for the appointment of an independent psychiatrist to examine Hill prior to trial. The court denied the request and opined that it did not have sufficient grounds to grant it at the time (Tr. 143). At defense counsel's request, the court entered an order requiring the Arkansas State Hospital to turn over whatever Oklahoma records it had (Tr. 142-143).
At the omnibus hearing, about two weeks before the scheduled June 9th trial, defense counsel indicated that they had not received psychiatric reports from Oklahoma and were not in a position to inform the court if insanity would be raised as a defense (Tr. 377). The trial, however, was continued when one of defense counsel was called to active duty by the United States Army.
On June 10, 1980, the hospital in Oklahoma sent to defense counsel some of Hill's records (H.T. Petitioner's Exhibits 9 and 10). As was later determined, these records were incomplete. Defense counsel did not learn of the additional records until shortly before the habeas hearing (H.T. 45).
On June 27, 1980, counsel filed a motion for appointment of an independent expert. Dr. Douglas Stevens, a psychologist, was appointed. He met with Hill, evaluated him and ultimately testified at trial.
Hill argues that his counsel failed to adequately investigate and present the insanity defense. He points to counsel's failure to contact Hill's physicians and hospital staff and to obtain all the medical records. He notes that counsel failed to contact the staff at the Tulsa Unit of Eastern State Hospital concerning Hill's outpatient treatment at the facility from the time of his discharge in August, 1979, through January 16, 1980, when Hill failed to make his appointment to receive his anti-psychotic medication, just three weeks before the crime occurred.
Thomas Carpenter, an attorney with criminal experience, testified as an expert in capital case litigation. He stated that when insanity is a defense, counsel must begin preparation early and that reasonably competent counsel would have obtained all of Hill's records as soon as possible to effectively develop and present this defense (H.T. 175).
"Reasonable performance of counsel includes an adequate investigation of the facts of the case, consideration of viable theories, and development of evidence to support those theories." Henderson v. Sargent, 926 F.2d 706, 711 (8th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992).
Investigation and development of the insanity defense was hardly more than perfunctory. Counsel should have begun their efforts to obtain medical records sooner, and should have talked to potential witnesses. An earlier request for the appointment of an independent expert might have revealed the need for additional evaluation and documentation.
Counsel did not contact all Hill's treating physicians, who could testify to the effects of Hill's failure to take his anti-psychotic medication. No effort was made to introduce the medical records which would have established that Hill had a long history of mental illness. Without the supporting medical records from Oklahoma, Dr. Stevens' diagnosis was made in a vacuum without additional evidence to validate it.
Furthermore, additional investigation would have better prepared defense counsel to cross examine Dr. Rosendale. The records would have called into question Dr. Rosendale's diagnosis (H.T. 234).
Defense counsel's argument that the records were prejudicial because they contained prior conviction evidence or bad act information cannot justify defense counsel's *1343 failure to introduce them. As Thomas Carpenter testified at the evidentiary hearing, the bad act information could have been redacted or defense counsel could have filed a motion in limine to keep out the information. As Carpenter stated, "It's a perfect basis for a motion in limine to the judge and request that the record be redacted and to present it that way." (H.T. 186)
The resulting prejudice from the failure of counsel to adequately investigate and present a defense cannot be underestimated. The jury was presented only minimal, incomplete information. They did not have the documentation establishing a long history of drug and alcohol abuse, mental illness, including auditory hallucinations and paranoid delusions for ten years. The jury was not told of the May, 1979, legal finding of insanity where Hill was found incompetent to proceed to trial on charges pending in Oklahoma. Hill was treated continuously from May, 1979, until he was discharged with a guarded prognosis on August 8, 1979, to stand trial in Oklahoma. He still required outpatient treatment and anti-psychotic medication to avoid becoming psychotic again. The jury was not informed of the adverse consequences of Hill's failure to take anti-psychotic medication right before the crime. Dr. James Moneypenny, an expert in clinical psychology who testified at the evidentiary hearing, stated that the records were extremely significant and established a strong likelihood that Hill was actively psychotic at the time of the offense (H.T. 227, 228, 232-237, 247, 248). Dr. Moneypenny further stated that the Oklahoma mental health records provide a strong case for the likelihood that Hill's mental state at the time of the offense was impaired to such a degree that he could not distinguish between right and wrong (H.T. 248).
The Court finds that defense counsel failed to adequately investigate and present an insanity defense. The Court is further persuaded that but for counsel's errors the result would have been different.
With regard to the other claims of ineffective assistance of counsel at the guilt/innocence phase, the Court does not find that counsel's performance was deficient. Although they did not file certain pretrial motions, defense counsel orally challenged the constitutionality of the death penalty statute. Furthermore, Hill has failed to demonstrate any prejudice by counsel's failure to file such pretrial motions.
With regard to the failure to obtain additional affidavits in support of a motion for change of venue, Hill has also failed to demonstrate prejudice. At the close of the voir dire, counsel moved for a change of venue and asked that the voir dire proceedings be incorporated in the motion to establish that Hill could not receive a fair trial.
The Court does not find counsel's performance deficient. As discussed above, Hill was not prejudiced by the denial of the motion for change of the venue. See Swindler v. Lockhart, 885 F.2d 1342, 1351-52 (8th Cir.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990) (defendant did not suffer prejudice from counsel's failure to follow the letter of the statute when moving for a change of venue).
Furthermore, counsel's performance during voir dire was not deficient. The Court finds that counsel adequately questioned prospective jurors and made appropriate objections. Even Hill's expert at the habeas hearing stated that counsel had done an excellent job during voir dire (H.T. 190).
Hill's assertions concerning counsel's failure to move for severance, failure to object to the State's amendment of the information, failing to object to jury instructions, and failure to move to set aside the verdict are all without merit. Hill cannot establish that he was prejudiced by counsel's performance.
Hill also complains that counsel failed to request a jury instruction that the jury could return a verdict of life imprisonment without parole despite making all the findings required for a sentence of death. This contention is without merit. The jury instruction provided, AMCI 1509, provides that the jury must find that a sentence of death is justified.
Thus, with respect to the guilt/innocence phase, the Court finds that counsel did not render Hill effective assistance with respect *1344 to investigating and presenting an insanity defense. The Court is also persuaded that counsel did not render Hill effective assistance during the penalty phase.
The only evidence defense counsel offered in mitigation was the testimony of Reverend Nixon, a Methodist minister. He had met with Hill two times while Hill was awaiting trial.
Even defense counsel, during the habeas hearing, admitted that they "did not establish a great deal through" Nixon (H.T. 96). In fact, they did not establish anything through Nixon, who was virtually a stranger to Hill.
The medical records available to defense counsel at the time establish that Hill had an extensive history of mental illness, drug and alcohol abuse. Counsel did not offer these records into evidence at the time of trial. Furthermore, as noted above, counsel did not obtain additional medical records which would have provided further background information on Hill, particularly that concerning Hill's troubled childhood. Nor did counsel have Dr. Stevens testify during mitigation regarding Hill's background. "Evidence of a difficult family history and of emotional disturbance" is generally relevant to mitigation. Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Here, defense counsel completely abdicated their responsibility in presenting to the jury this extremely relevant, and important information.
Defense counsel also failed to adequately interview witnesses or discover mitigating evidence. See Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.1991) ("Failing to interview witnesses or discover mitigating evidence relates to trial preparation and not trial strategy.") Defense counsel testified at the hearing that Hill did not want his mother to testify. Counsel also stated that Hill's brother and sister-in-law did not want to testify at trial (H.T. 144). There is no indication, however, that counsel attempted to discover other witnesses who could testify in mitigation, such as other family members or mental health personnel who had known Hill.
Counsel testified that they did not want to put in the medical records because of what was in their opinion damaging information concerning Hill's criminal history and prior bad acts. In rejecting a similar argument, the court in Kenley v. Armontrout, 937 F.2d at 1309 stated: "[I]n the context of what the jury had already heard at trial about [defendant's] crazed and violent actions on the night of the crimes, we are doubtful that much of the additional aggravating information would have had any significant incremental aggravating effect on the jury."
The Court cannot speculate that the failure to provide the medical records in support of Hill's history of drug and alcohol abuse would do more harm than good or that Hill was not prejudiced by the omission. The jury would have considered it and might have been influenced by it. See Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983).
In sum, the Court finds that Hill did not receive effective assistance of counsel during the penalty phase. Given Hill's long history of mental illness, drug and alcohol abuse and troubled childhood, it was unreasonable to not offer the medical records during the penalty stage. It was also not reasonable for counsel not to thoroughly investigate possible mitigating evidence.
The prejudice is clear. The jury was deprived of hearing important, mitigating evidence which could have been presented in a sympathetic light. The jury's "`possession of the fullest information possible concerning the defendant's life and characteristics' is `[h]ighly relevantif not essential [to the] selection of the appropriate sentence ...'" Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (citation omitted). The Court finds that there is a reasonable probability that the outcome of the sentencing proceeding would have been different but for counsel's ineffectiveness.
Conclusion
The Court finds that counsel was ineffective at both the guilt and penalty stages. The Court further finds that constitutional error occurred during the penalty phase when the prosecutor used three non-violent felonies as a non-statutory aggravating circumstance.
*1345 The petition for writ of habeas corpus is granted. The State is required to vacate Hill's convictions and sentences and either retry him within 120 days or the writ of habeas corpus shall be issued and Hill will be released.
IT IS SO ORDERED.
NOTES
[1] The court would not set aside the kidnapping and aggravated robbery included in the attempted capital felony murder conviction as the error was raised for the first time on appeal. The court noted that it could set aside the underlying felony convictions with regard to the capital felony murder conviction as the court will consider, in death cases, errors argued for the first time on direct appeal where prejudice is conclusively shown by the record. 275 Ark. at 77, 628 S.W.2d 284.
[2] The Governor set Hill's execution date for November 19, 1982. On November 12, Hill filed his original petition for writ of habeas corpus. At that time he had not exhausted his state remedies as his Rule 37 petition was pending before the Arkansas Supreme Court.
The Arkansas Supreme Court granted a stay of execution on November 15, 1982. The Court, on November 19, 1982, abstained from further action in the case in light of the pending state proceedings.
After the state supreme court denied the Rule 37 petition, the Governor set February 19, 1982 as Hill's execution date. Hill filed a supplemental application for stay of execution. On February 2, 1982, the Court granted Hill's motion for stay of execution.
Because of respondent's informal agreement to delay proceedings on a number of habeas petitions until the United States Supreme Court decided certain issues pertaining to the constitutionality of Arkansas' death penalty statute, no further action was taken until January 23, 1989, when the Court directed Hill to file an amended petition.
Some delay is necessitated by the special nature of habeas review of a death sentence. "The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court." Mercer v. Armontrout, 864 F.2d 1429, 1431 (8th Cir.1988). As the Honorable Donald P. Lay, former Chief Judge of the United States Court of Appeals for the Eighth Circuit has stated:
Regardless of rhetoric that death penalty cases should receive the same review on habeas corpus as imprisonment cases, capital punishment is unique because it is irrevocable once performed. Therefore, it is incumbent upon a civilized society to make judicial procedures for capital punishment fundamentally fair, nondiscriminatory, and nonarbitrary.... Judicial review of death sentences must provide a studied examination of any violations of those standards.
Donald P. Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L.Rev. 1015, 1017 (1993) (hereinafter Lay).
[3] Even some of Hill's witnesses were not so certain that Hill could not receive a fair trial. Larry Graves, editor of the county newspaper, opined that whether Hill could get a fair trial in the county depended on the jurors who were selected. He testified that many people in the county had not formed an opinion or would be willing to listen to the evidence (Tr. 168). Lena May Helms testified that she did not have an opinion as to Hill's guilt or innocence (Tr. 208).
References to the state record of the trial proceedings are designated as Tr. References to the transcript of the evidentiary hearing are designated as H.T.
[4] Although the trial court responded that it would consider the matter of change of venue at a later time (Tr. 512), the transcript does not reflect that the trial judge ever made any additional ruling on the renewed motions for change of venue.
[5] In his post-hearing brief, Hill has combined discussion of grounds Three and Four of his petition. The Amended Petition states as Ground Three: "Petitioner was denied rights secured to him by the Fifth, Eighth, and Fourteenth Amendments and a fair trial on the issue of punishment by the failure of the trial court to grant a severance of offenses and by the trial court's improper submission to the jury as separate, substantive offense at both the guilt stage, and subsequently for punishment at the sentencing phase, the lesser included offenses of aggravated robbery (2 counts) and kidnapping (2 counts)."
The Amended Petition states Ground Four as follows: "Petitioner was denied his rights under the Fifth, Eighth and Fourteenth Amendments by the prosecutor's improper argument to the jury that it should consider petitioner's extensive prior criminal record in determining punishment because such is not a statutory aggravating circumstance and petitioner did not put his prior criminal record in issue."
The Court has similarly consolidated the discussion of the two grounds because of the impact of the combined effect of the submission of the underlying felonies, and the prosecutor's improper argument. See infra.
[6] According to the statute in effect at the time of Hill's trial, Ark.Stat.Ann. § 41-1005 (Repl.1977), when an extended sentence for a habitual offender is sought, the jury, if it reaches a guilty verdict, hears evidence of a defendant's previous felony convictions. The defendant has the right to controvert the evidence. The jury then determines the sentence in accordance with the provisions of Ark.Stat.Ann. § 41-1001 (Repl.1977).
[7] The Arkansas statute at the time provided that after the defendant was found guilty of capital murder, the jury then heard additional evidence relating to specific aggravating circumstances or any mitigating circumstance. Ark.Stat.Ann. § 41-1301 (Repl.1977). The statute provided as follows with regard to mitigating circumstances:
Mitigating circumstances shall include, but are not limited to the following:
(1) the capital murder was committed while the defendant was under extreme mental or emotional disturbance;
(2) the capital murder was committed while the defendant was acting under unusual pressures or influences or under the domination of another person;
(3) the capital murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse;
(4) the youth of the defendant at the time of the commission of the capital murder;
(5) the capital murder was committed by another person and the defendant was an accomplice and his participation relatively minor;
(6) the defendant has no significant history of prior criminal activity.
Ark.Stat.Ann. § 41-1304 (Repl.1977) (now codified as Ark.Code Ann. § 5-4-605).
[8] The aggravating circumstances are limited to: (1) the capital murder was committed by a person imprisoned as a result of a felony conviction; (2) the capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction; (3) the person previously committed another felony any element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (4) the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim; (5) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; (6) the capital murder was committed for pecuniary gain; or (7) the capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function. Ark.Stat.Ann. § 41-1303 (Repl.1977) (now codified as amended Ark.Code Ann. § 5-4-604).
[9] The prosecutor refers to Form 2 which deals with mitigating circumstances (Tr. 1538-1539).
[10] The Supreme Court recently held that on a habeas review of a state conviction the appropriate standard for determining whether constitutional error of a trial type was harmless is whether the error had substantial and injurious effect or influence in determining the verdict, rather than the Chapman v. California standard of harmless beyond a reasonable doubt. Brecht v. Abrahamson, ___ U.S. ___, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
[11] Ark.Stat.Ann. § 41-1302 (Repl.1977) provided:
(1) The jury shall impose a sentence of death if it unanimously returns written findings that:
(a) aggravating circumstances exist beyond a reasonable doubt; and
(b) aggravating circumstances outweight [out-weigh] beyond a reasonable doubt all mitigating circumstances found to exist; and
(c) aggravating circumstances justify a sentence of death beyond a reasonable doubt.
The statute was amended in 1985 to provide that the Arkansas Supreme Court perform a harmless error review of a defendant's death sentence if on appeal the court finds that the jury erred in finding the existence of any aggravating circumstance and if the jury found no mitigating circumstance. Ark.Code Ann. § 5-4-603(d).
[12] See Kenley v. Armontrout, 937 F.2d 1298, 1301 (8th Cir.1991) (court may bypass procedural bar and address the merits of the issue where relief is denied and the merits are plainer and simpler than the procedural defenses).
[13] See also Pickens v. Lockhart, 542 F.Supp. 585, 613 (E.D.Ark.1982), remanded, 714 F.2d 1455 (8th Cir.1983), where the court rejected the identical argument in another death penalty habeas case.
[14] In his post-hearing brief, Hill limits his ineffective assistance claim to six points, as follows:
1. Counsel was ineffective in not filing any motions on Hill's behalf concerning the constitutionality of the Arkansas death penalty statute on its face or as applied to Hill.
2. Counsel was ineffective in failing to obtain proper affidavits or presenting necessary evidence in support of the motion for change of venue.
3. Counsel was ineffective in failing to adequately move and argue for a severance of offenses.
4. Counsel was ineffective in the handling of the voir dire.
5. Counsel was ineffective in failing to adequately investigate or develop a theory of defense, and in failing to obtain the evidence to establish a defense of diminished capacity or insanity defense.
6. Counsel was ineffective at the penalty phase because they did not effectively investigate and present evidence of Hill's history of mental illness, drug and alcohol abuse as a mitigating circumstance.
[15] The state argues that Hill has procedurally defaulted on all the claims with the exception of 1(e). The Court does not agree. The Arkansas Supreme Court addressed the issue of ineffective assistance of counsel in Hill's Rule 37 petition. 278 Ark. 194, 203, 205, 644 S.W.2d 282 (1983).
For a criticism of reliance on procedural technicalities to deny a petitioner review of the merits of his or her constitutional claim, see Lay, at 1063 ("It is difficult for many of us to believe that in today's society an individual may be executed by reason of technical error by his or her lawyer in order to exalt the goal of state finality above the requirements of fundamental fairness.")
Indeed, the Arkansas Supreme Court decades ago in Swagger v. State, 227 Ark. 45, 53, 296 S.W.2d 204 (1956) recognized the value and the role that fundamental fairness should play in criminal proceedings by noting that where a "judgment is void because of the want of due process of law, it has no force and effect, and can be vacated at any time."
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/15/13 P. v. Johnson CA5
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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F064693
Plaintiff and Respondent,
(Super. Ct. No. 1015259)
v.
FRANCIS DONALD JOHNSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
In December 2002, a jury convicted defendant Francis Donald Johnson of
voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and found true an allegation that
he personally used a firearm during the commission of the offense (§ 12022.5, subd.
(a)).2 He was sentenced to a 21-year term comprised of the aggravated terms of 11 years
for the manslaughter and 10 years for the enhancement. In his prior appeal, we affirmed
his sentence but modified the judgment to provide additional presentence conduct credits
to which he was entitled.3
In May 2010, Johnson filed a petition for writ of habeas corpus in the California
Supreme Court, which issued an order in February 2011 directing the Department of
Corrections and Rehabilitation (Department) to show cause before the trial court why the
upper term sentences did not violate Johnson‟s right to a jury trial. After the Department
filed a return asking the trial court to again impose the upper term on the enhancement,
the trial court appointed counsel for Johnson, who filed a response urging the trial court
to sentence Johnson to the mitigated term on both the substantive offense and
enhancement. At the hearing on that issue, the trial court resentenced Johnson to 15
years, comprised of the upper term of 11 years on the voluntary manslaughter conviction
and the midterm of four years on the enhancement.
Johnson appeals, contending the upper term sentence for voluntary manslaughter
violated ex post facto principles and the trial court abused its discretion in selecting the
upper term for the voluntary manslaughter conviction. Johnson also contends, and
1 All statutory references are to the Penal Code.
2 An amended information charged Johnson with murder (Pen. Code, § 187). The
jury was instructed to consider both first and second degree murder in addition to the
lesser included offenses of voluntary manslaughter and involuntary manslaughter.
3 At the request of the parties, we take judicial notice of the record in case No.
F042891, People v. Johnson. The California Supreme Court denied Johnson‟s petition
for review on June 9, 2004, in case number S124590.
2.
respondent concedes, that the court security fee and criminal conviction assessment the
trial court imposed on resentencing must be stricken. As we shall explain, we reject
Johnson‟s ex post facto claim and find no abuse of discretion. We agree the fee and
assessment must be stricken, and will order the judgment modified accordingly.
FACTS
On October 27, 2000, Johnson, the manager of a mobile home park, got into a
verbal argument with Doug Casper, one of the park‟s residents, in the park‟s laundry
room. Casper followed Johnson to Johnson‟s trailer and challenged him to a fistfight.
Johnson went into his trailer, telling Casper he was going to call the police. Casper
waited outside, between a fence and Johnson‟s pickup truck. While in his trailer,
Johnson called the police and told them Casper had threatened to assault him.4
When Johnson came out of the trailer a few minutes later, he walked over to
Casper and continued to argue. Johnson pulled a gun out of his waistband, brought the
gun to Casper‟s face and immediately pulled the trigger. Casper, who was shot in the
mouth, died from the gunshot wound. Johnson called 911 with a cordless phone he was
carrying with him and told the operator he shot Casper to defend himself. Casper‟s wife,
Joyce, screamed for help. According to Joyce, Johnson, who was standing nearby, told
her to “Shut the fuck up, help‟s on the way.”
DISCUSSION
Changes in the Law for Imposing an Upper Term Sentence
In the period following Johnson‟s original sentence, many changes occurred in the
sentencing law. In 2007, the United States Supreme Court in Cunningham v. California
(2007) 549 U.S. 270 (Cunningham) considered the constitutionality of California‟s
determinate sentencing law after Apprendi v. New Jersey (2000) 530 U.S. 466
4 During a police interview, Johnson admitted he retrieved the gun when he went
into his trailer to call the police.
3.
(Apprendi).5 The Court evaluated Penal Code former section 1170, subdivision (b),
which provided that “the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.” The Court in Cunningham
found this section violated Apprendi because it created a presumption that made the
middle term the statutory maximum, thus impermissibly allowing trial courts to impose
an aggravated upper prison term “based on a fact, other than a prior conviction, not found
by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. 275.)
The California Legislature responded to Cunningham by amending the
determinate sentencing law effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) The
amendments eliminated the middle term as the statutory maximum and gave the trial
court discretion to select among the lower, middle, and upper terms without stating
ultimate facts deemed to be aggravating or mitigating and without weighing those
circumstances. “[A] trial court is free to base an upper term sentence upon any
aggravating circumstance that the court deems significant, subject to specific
prohibitions.” (People v. Sandoval (2007) 41 Cal.4th 825, 848 (Sandoval).) In Sandoval,
the court held that application of the amended version of the determinate sentencing law
to all sentencing proceedings conducted after the effective date of the amendments does
not violate the prohibition against ex post facto laws, regardless of whether the offense
was committed prior to the effective date of the amendments. (Id. at pp. 853-857.)
Although Johnson‟s crime occurred in 2000, his current sentencing took place
post-Cunningham and under the new version of section 1170, subdivision (b), which
provides in part: “When a judgment of imprisonment is to be imposed and the statute
5 In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that a
criminal defendant‟s right to a jury trial is violated when the trial court is allowed to
increase a criminal penalty beyond the prescribed statutory maximum based on a fact,
other than a prior conviction, which was not admitted by the defendant or found true by a
jury.
4.
specifies three possible terms, the choice of the appropriate term shall rest within the
sound discretion of the court.”
Ex Post Facto Claim
Johnson objected to being sentenced under the new sentencing scheme both in his
sentencing brief and at the sentencing hearing. He asserted that Sandoval was wrongly
decided and he was entitled to a jury trial on any facts supporting an aggravated sentence.
The trial court, however, concluded it was bound by Sandoval and sentenced Johnson
under the current version of section 1170, subdivision (b).
On appeal, Johnson contends the retroactive application of the amendment to
section 1170, subdivision (b) to his case is a violation of due process and is a violation of
the prohibition of ex post facto laws. Johnson recognizes that the case of Sandoval,
supra, 41 Cal.4th 825 resolves these issues against him, but he raises them to preserve
them for federal review. We are bound by the decisions of the California Supreme Court
and therefore reject Johnson‟s argument. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450.)
Imposition of the Upper Term
Johnson contends the trial court abused its discretion by imposing the upper term
on the voluntary manslaughter conviction. We find no abuse.
A trial court‟s sentencing decision is reviewed for abuse of discretion. (Sandoval,
supra, 41 Cal.4th at p. 847.) “[D]iscretion is abused whenever the court exceeds the
bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975)
14 Cal.3d 68, 72.) “The trial court‟s sentencing discretion must be exercised in a manner
that is not arbitrary and capricious, that is consistent with the letter and spirit of the law,
and that is based upon an „individualized consideration of the offense, the offender, and
the public interest.‟” (Sandoval, supra, at p. 847.) Thus, a trial court will abuse its
discretion if it relies upon circumstances that are not relevant to the sentencing decision
or that otherwise constitute an improper basis for decision. (Ibid.)
5.
A trial court is “required to specify reasons for its sentencing decision, but [is not]
required to cite „facts‟ that support its decision or to weigh aggravating and mitigating
circumstances.” (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Under California‟s
determinate sentencing law, “a trial court is free to base an upper term sentence upon any
aggravating circumstance that the court deems significant, subject to specific
prohibitions.” (Id. at p. 848; see, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying
an enhancement may not be used to impose the upper term unless the court strikes the
enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to
impose the upper term].) “[T]he existence of a single aggravating circumstance is legally
sufficient to make the defendant eligible for the upper term.” (People v. Black (2007) 41
Cal.4th 799, 813 (Black).) “The court‟s discretion to identify aggravating circumstances
is otherwise limited only by the requirement that they be „reasonably related to the
decision being made.‟” (Sandoval, supra, at p. 848.) “An aggravating circumstance is a
fact that makes the offense „distinctively worse than the ordinary.‟” (Black, supra, 41
Cal.4th at p. 817.)
Here, the probation officer‟s report from the original sentencing listed two
circumstances in aggravation: (1) the crime involved acts disclosing a high degree of
cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1));6 and (2) the
manner in which the crime was carried out indicates planning, sophistication, or
professionalism (rule 4.421(a)(8)). The report also listed two circumstances in
mitigation: (1) the victim was an aggressor or provoker of the incident (rule 4.423(a)(2));
and (2) Johnson had an insignificant criminal record (rule 4.423(b)(1)).
At the hearing on the writ, the trial court announced its tentative decision to
impose the aggravated sentence of 11 years for the manslaughter based on the nature and
seriousness of the crime, and the way the crime was committed, and the middle term on
6 All further references to rules are to the California Rules of Court.
6.
the enhancement as sentencing Johnson to an upper term would require dual use of the
facts. After hearing oral argument, the trial court sentenced Johnson according to its
tentative decision, and imposed the 11-year upper term for the voluntary manslaughter
conviction and a consecutive four-year mid-term for the enhancement.
In explaining its decision with respect to the manslaughter conviction, the trial
court noted the existence of mitigating factors, namely Johnson‟s lack of criminal
behavior and that the victim “acted somewhat aggressively in this.” Nevertheless, it
found an aggravated sentence was justified by the following: “ … Johnson did retreat to a
place of safety. He called 911 and then, whether he picked up the gun at that point or had
a gun previously and went back out, he approached the victim. He was close enough to
the victim to shoot him in the face, shot him in the face, and then – and it may not be
strictly within the aggravating factors, but he went back in the house, called 911, and then
came out and told the wife to either “Shut up” or “Shut the fuck up.” And I think under
these circumstances and as [the prosecutor] indicated he had previously, prior to this
incident anyway, had indicated he was ready to use the firearm that he had and I think,
just on balance, these factors are worthy of the aggravated sentence.”
Johnson first contends the trial court abused its discretion when it relied on the
way the firearm was used, i.e. shooting Casper in the face at close range, to impose the
upper term on manslaughter. He asserts by relying on this fact, the trial court made an
impermissible dual use of a fact that was the predicate for the enhancement, namely the
use of a firearm.
From the trial court‟s comments, it appears the aggravating circumstance it found
related to the manner in which the killing was accomplished, that is, that the crime
involved acts disclosing a high degree of cruelty, viciousness or callousness. (Rule
4.421(a)(1).) Johnson‟s argument is based on the premise that this aggravating
circumstance was attributable to the same underlying fact as the personal use
enhancement, namely his use of a gun, and as such constituted a dual use of the facts.
7.
While Johnson is partially right, as his use of a gun was integral to both the aggravating
circumstance and the enhancement, he also is partially wrong, since the aggravating
circumstance rested on additional, different facts than gun use alone.
The cruelty, viciousness or callousness of an offense is properly found where there
is evidence to support such a finding “beyond mere gun-use or vulnerability of the
victim.” (People v. Levitt (1984) 156 Cal.App.3d 500, 515-516 (Levitt), relying on
People v. White (1981) 117 Cal.App.3d 270, 282, disapproved on another ground in
People v. Scott (1994) 9 Cal.4th 331, 352-353 and fn. 16.) In Levitt, the appellate court
found the fact that the victim was shot in the back of the head displayed callousness
beyond that inherent in mere gun use. In so finding, the court distinguished the case from
that of People v. Smith (1980) 101 Cal.App.3d 964, where that Court of Appeal held the
trial court improperly imposed an upper term for robbery and an additional term for a
firearm enhancement based gun use. (Levitt, supra, 156 Cal.App.3d at pp. 515-516.)
As in Levitt, here there was more than gun use to support the trial court‟s finding
of callousness. Approaching and shooting a man in the face at close range was a cruel,
vicious and callous act that went beyond mere gun use. Johnson asserts the fact that the
shot was fired at close range “did not make the resulting death distinctively worse than
the ordinary manslaughter.” When the trial court determined that Johnson‟s actions were
cruel, vicious and callous, however, it was considering not just that Johnson shot Casper
at close range, but the entire sequence of events, which included approaching Casper
from a place of safety with a firearm, getting close to Casper, shooting him in the face,
and then, after calling 911, telling Casper‟s wife to shut up. The trial court reasonably
could conclude, as it did, that Johnson‟s actions throughout the incident evidenced cruelty
and callousness.
Next, Johnson argues the trial court improperly relied on statements he made
before the incident that indicated he was ready to use the firearm. Johnson made more
than one such statement. Sometime before the shooting, he told Jim Smith that he had a
8.
gun and was not afraid to use it, and if he used it, he would get away with it. About two
weeks before the shooting, Johnson told Joyce, “Look you stupid fucking bitch, I'll blow
both your fucking heads off and get away with it too[,]” pulled open his coat and revealed
his gun.7 Johnson asserts these statements were insufficient to support the trial court‟s
finding of planning as a factor in aggravation, were not reasonably related to the offense,
and did not render his culpability worse than ordinary manslaughter.
The mere fact the statements were made before the offense does not mean they are
not related to it. As respondent points out, pre-offense statements are commonly
admitted at trial if relevant to planning, motive, malice or other factors. (See, e.g., People
v. Clark (2011) 52 Cal.4th 856, 956-957.) In exercising its “broad discretion,” the trial
court here reasonably could find Johnson‟s statements relevant to his offense. (People v.
Towne (2008) 44 Cal.4th 63, 85 (Towne) [“California law affords the trial court broad
discretion to consider relevant evidence at sentencing.”]) It also could find that it
rendered Johnson‟s culpability worse than others who commit manslaughter, as the
availability of firearms creates the potential for injury and death. (See People v.
Mendival (1992) 2 Cal.App.4th 562, 573; People v. Wandick (1991) 227 Cal.App.3d 918,
927.) It could also consider the statements as evidence of planning, despite Johnson‟s
acquittal of murder. (Towne, supra, 44 Cal.4th at p. 85-86, 87-88; see also People v.
McCoy (2012) 208 Cal.App.4th 1333, 1340; Levitt, supra, 156 Cal.App.3d at p. 516.)
7 While Johnson asserts the trial court did not rely on the second statement to
impose the upper term, since the trial court did not specifically reference the statement in
its decision, we do not read the record so narrowly. The record shows that at the
sentencing hearing, the prosecutor mentioned both statements when arguing Johnson
clearly intended to use the firearm “because he made statements to more than one person
that he intended to use it.” In pronouncing judgment, the trial court referenced the
prosecutor‟s argument as follows: “ . . . as [the prosecutor] indicated [Johnson] had
previously, prior to this incident anyway, had indicated he was ready to use the firearm
that he had . . . ” In our view, the trial court was referring to both statements, each of
which indicated a readiness to use the firearm.
9.
Johnson also asserts the trial court could not rely on his statement to Joyce that she
should shut up, made after he shot Casper and called 911, because it was made to
someone other than the victim of the crime after the crime was completed. A defendant‟s
actions or conduct at the scene of the crime, but occurring shortly before or after the
crime, however, may be considered when weighing the “callousness” factor. (See, e.g. ,
People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736, and Levitt, supra, 156
Cal.App.3d at p. 516 [noting that trial court was justified in observing that the “entire
criminal enterprise was characterized by callousness”].) Here, Johnson‟s statement to
Joyce demonstrates a cruel and callous attitude toward the crime that began before he
shot Casper and continued throughout the incident.
Finally, Johnson asserts for the first time that the trial court could not rely on his
statements made before or after the shooting to aggravate his sentence because to do so
violates his right to freedom of speech under the federal and state Constitutions. He
argues his statements were protected speech under the First Amendment and thus could
not be used to impose the upper term. Respondent contends, and we agree, that Johnson
has forfeited this argument because he failed to object on this ground. (See People v.
Quartermain (1997) 16 Cal.4th 600, 629-630; see also People v. Partida (2005) 37
Cal.4th 428, 433-434; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.)
Even if not forfeited, the claim fails. Johnson has cited no authority that the First
Amendment prohibits imposition of an upper term based on words that are spoken in
relation to the crime. To the contrary, admission of evidence “relevant to actual criminal
conduct . . . does not violate [a defendant‟s] constitutional free speech rights.” (People v.
Smith (2003) 30 Cal.4th 581, 626.) Johnson‟s statements were admitted as evidence
relevant to the charged crime and the lesser-included offenses, and suggested a motive to
kill Casper. Because the statements constituted relevant evidence, there was no First
Amendment violation. Moreover, there was no attempt to restrict Johnson‟s speech or
punish him merely for his words, as in the case he relies on, City of Houston v. Hill
10.
(1987) 482 U.S. 451, 466-467, in which the United States Supreme Court held that a
municipal ordinance making it unlawful to interrupt a police officer in the performance of
his or her duties was unconstitutionally overbroad under the First Amendment. Instead,
the upper term was imposed because Johnson exhibited, by his words and actions, that
the shooting was cruel and callous.
In sum, a trial court‟s choice of an upper term may be based on any aggravating
factor(s) “reasonably related to the decision being made” (Rule 4.408(a)), and will not be
disturbed on appeal if it is “consistent with the letter and spirit of the law”; “based upon
an „individualized consideration of the offense, the offender, and the public interest‟”;
and is neither “arbitrary” nor “capricious” (Sandoval, supra, 41 Cal.4th at p. 847). The
trial court‟s determination that the voluntary manslaughter justified the imposition of the
upper term satisfies these criteria.
Court Facilities Assessment and Fee
When the trial court resentenced Johnson, it ordered him to pay a $40 court
security fee pursuant to Penal Code section 1465.8 and a $30 conviction assessment fee
pursuant to Government Code section 70373. Johnson contends, and respondent
concedes, that neither of these fees should have been imposed because he was convicted
before the effective date of either statute. As the parties note, Johnson was convicted on
December 20, 2002, and each statute became operative after Johnson‟s conviction.
(People v. Alford (2007) 42 Cal.4th 749, 753-754 [Legislature intended court security fee
of section 1465.8 to be imposed to all convictions after its operative date of August 17,
2003]; People v. Davis (2010) 185 Cal.App.4th 998, 1000 [Gov. Code, § 70373 applies
only where the conviction occurs on or after its effective date of January 1, 2009; order
imposing assessment reversed].) We agree and will strike the fee and assessment.
DISPOSITION
We grant the parties‟ requests that we take judicial notice of the record in case
number F042891, People v. Johnson. The judgment is modified to strike the $40 court
11.
security fee imposed pursuant to Penal Code section 1465.8 and the $30 criminal
conviction assessment imposed pursuant to Government Code section 70373. As
modified, the judgment is affirmed. The clerk of the superior court is ordered to prepare
an amended abstract of judgment reflecting this modification and transmit it to the
appropriate authorities.
12.
| {
"pile_set_name": "FreeLaw"
} |
521 P.2d 400 (1974)
Joe M. POLLARD, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. PC-74-208.
Court of Criminal Appeals of Oklahoma.
April 5, 1974.
Miskovsky, Sullivan & Miskovsky, Robert B. Smith, Oklahoma City, for appellant.
Larry Derryberry, Atty. Gen., for appellee.
*401 BUSSEY, Judge:
This is an appeal from the denial of post conviction relief in the District Court, Oklahoma County, Case No. CRF-73-2640, wherein Joe M. Pollard, hereinafter referred to as defendant, was charged with the crime of Robbery in the First Degree, After Former Conviction of a Felony, and plead guilty to the lesser offense of Grand Larceny, After Former Conviction of a Felony, and was sentenced to serve ten (10) years imprisonment. Defendant did not attempt to withdraw his plea of guilty, or file a Writ of Certiorari, but filed for post conviction relief in the District Court, Oklahoma County, and the same was denied on the 6th day of March, 1974.
The sole proposition urged in the present appeals is that the sentence of ten (10) years constitutes "cruel and unusual punishment." His argument is based on the fact that his prior felony conviction was Possession of Marihuana, which has subsequently been classified as a misdemeanor by the Legislature.
In Bilbrey v. State, 76 Okl.Cr. 249, 135 P.2d 999 (1943), this Court stated:
"In the case of Penn. v. State, 13 Okl.Cr. 367, 164 P. 992, L.R.A. 1917E, 668, the first syllabus provides: `Section 54, art. 5, Constitution, provides: "The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute." Above section construed in part, and held, "that statutes repealing penalties for offenses committed in this state operate prospectively and are applicable only to offenses committed after the statute became effective."' In the opinion it is stated: `The very minute this crime was committed the defendant became amenable to the law as it then existed. *402 He then and there by his own voluntary conduct incurred the penalty of that law, and the constitutional provision aforesaid prevents the Legislature of this state from wiping out penalties for crimes committed prior to the taking effect of a repealing statute.
* * * * * *
`We hold, therefore, that this defendant was subject to any penalty imposed by law for this crime on the date of its commission, and any subsequent statute repealing such penalty can only operate prospectively, and is applicable only to offenses committed after the statute took effect.'
See also Lilly v. State, 7 Okl.Cr. 284, 123 P. 575 [1912]... ."
Again, in 1972, this Court stated in Freshour v. Turner, Okl.Cr., 496 P.2d 389:
"We note there is nothing contained within either the title to the act or within House Bill Number 1705 itself making the particular act retroactive. It is well established that unless a legislative enactment by its very own language is to apply retroactively, it can apply prospectively only. Acme Oil & Gas Co., Limited, et al. v. Cooper, Judge, 168 Okl. 346, 33 P.2d 191; Baker & Strawn v. Magnolia Petroleum Co., 124 Okl. 94, 254 P. 26, 82 C.J.S. Statutes § 319."
The following language appears in 24B C.J.S. Criminal Law § 1982, at pages 572 and 573:
"... A statute changing the punishment, operative after accused has been convicted does not affect the penalty to be imposed. Once final judgment has been pronounced, a change in the law does not arrest or interfere with execution of the sentence. So, where a statute reducing the penalty applies to cases arising after its passage, one convicted, sentenced, and committed prior to the effective date of the statute may not claim its benefits."
We are of the opinion, and therefore hold, that the Legislature may make retroactive a statute lessening the punishment and classification of an offense, but the intent to do so must be affirmatively expressed in said statute. At the time the offense of Possession of Marihuana was committed by defendant, the same was defined as a felony, and the subsequent enactment reducing punishment and redefining Possession of Marihuana as a misdemeanor did not contain language expressing the intent of the Legislature that the same should be applied retroactively.
We further hold that in the event a person is convicted under a statute and subsequent to his conviction the Legislature redefines the crime and reduces the punishment therefore, such subsequent enactment cannot modify the final judgment and sentence entered prior to its enactment.
For all of the above and foregoing reasons, the Order Denying Post Conviction Relief is accordingly AFFIRMED, and Joe M. Pollard is advised that he has now exhausted all his state remedies. Affirmed.
BLISS, P.J., and BRETT, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-199 CR
____________________
TEMEKO LAKEITH LEDAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D060027-R
MEMORANDUM OPINION
A jury convicted appellant, Temeko Lakeith LeDay, of the offense of unauthorized
use of a vehicle, a state jail felony. See Tex. Pen. Code Ann. § 31.07(a), (b) (Vernon 2003).
Finding enhancement evidence true, the jury assessed LeDay's punishment at confinement
in the Texas Department of Criminal Justice-Institutional Division for a term of twenty years,
and additionally assessed a fine of $10,000. The lone issue for our consideration is whether
the trial court erred in providing the jury with an improper punishment option for
consideration in assessing LeDay's punishment. The State's reply all but concedes reversible
error.
The facts pertaining to the issue are not in dispute. During the punishment phase of
the trial, the State introduced into evidence two non-sequential state jail felony convictions
from 2003, both for possession of a controlled substance. Additionally, the State introduced
one prior second-degree felony conviction from 1996. The trial court submitted a proposed
punishment charge which provided the jury with the option of punishing LeDay for a second-
degree felony, a third-degree felony, or for a state jail felony. Each punishment option was
predicated on the number of prior convictions presented by the State found to be "true" by
the jury. LeDay objected to the proposed second-degree punishment option as being
unauthorized by the Texas Penal Code because "the maximum range of punishment
applicable to a nonaggravated state jail felony is between 2 and 10 years and not 2 and 20
years." The trial court overruled LeDay's objection. As noted above, the jury punished
LeDay for a second-degree felony.
As discussed in its brief, the State's theory of punishment under this scheme intended
to apply the sequential nature of LeDay's three prior convictions to particular provisions in
the Texas Penal Code addressing punishment of state jail felony offenders. The provisions
in question are found in Tex. Pen. Code Ann. § 12.35 (Vernon 2003), § 12.42 (Vernon
Supp. 2006). The pertinent parts of these sections appear in the Code as follows:
§ 12.35. State Jail Felony Punishment
(a) Except as provided by Subsection (c), an individual adjudged guilty
of a state jail felony shall be punished by confinement in a state jail for any
term of not more than two years or less than 180 days.
(b) In addition to confinement, an individual adjudged guilty of a state
jail felony may be punished by a fine not to exceed $10,000.
(c) An individual adjudged guilty of a state jail felony shall be punished
for a third degree if it is shown on the trial of the offense that:
(1) a deadly weapon as defined by Section 1.07 was used
or exhibited during the commission of the offense or during
immediate flight following the commission of the offense, and
that the individual used or exhibited the deadly weapon or was
a party to the offense and knew that a deadly weapon would be
used or exhibited; or
(2) the individual has previously been finally convicted
of any felony:
(A) listed in Section 3g(a)(1), Article
42.12, Code of Criminal Procedure; or
(B) for which the judgment contains an
affirmative finding under Section 3g(a)(2), Article
42.12, Code of Criminal Procedure.
. . . .
§ 12.42. Penalties for Repeat and Habitual Felony Offenders
(a)(1) If it is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted of
two state jail felonies, on conviction the defendant shall be punished for a
third-degree felony.
(2) If it is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted of
two felonies, and the second previous felony conviction is for an offense that
occurred subsequent to the first previous conviction having become final, on
conviction the defendant shall be punished for a second-degree felony.
(3) If it is shown on the trial of a state jail felony punishable under
Section 12.35(c) or on the trial of a third-degree felony that the defendant has
been once before convicted of a felony, on conviction he shall be punished for
a second-degree felony.
. . . .
(e) A previous conviction for a state jail felony punished under Section
12.35(a) may not be used for enhancement purposes under Subsection (b), (c),
or (d).
Id. Under these sections, the State intended to use the 2003 state jail felony convictions to
enhance the instant offense to a third-degree felony under section 12.42(a)(1), and then
continue to raise LeDay's punishment exposure to a second-degree felony by using his 1996
felony conviction to further enhance the section 12.42(a)(1) enhancement pursuant to
subsection 12.42(a)(3). In its brief, the State cites to Campbell v. State, 49 S.W.3d 874 (Tex.
Crim. App. 2001), and State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000), candidly
admitting "after reading the language and intent of these cases [the State] feels that the
enhancement may be against the wishes of the Court of Criminal Appeals." We agree.
In both Campbell and Webb, the Court of Criminal Appeals classified state jail felony
offenses as either "aggravated" or "unaggravated"/"non-aggravated". See Campbell, 49
S.W.3d at 875, 877; Webb, 12 S.W.3d at 809, 811. Whether or not a state jail felony offense
is aggravated or unaggravated depends upon whether the offense is punishable under
subsection 12.35(a), reserved for unaggravated state jail offenses, or punishable under
subsection 12.35(c), reserved for aggravated state jail offenses. See Webb, 12 S.W.3d at 811
("[A]ppellee was tried for a non-aggravated state jail felony, i.e., a state jail felony
punishable under § 12.35(a). . . . Both §§ 12.42(a)(3) and 12.42(d) allow for enhanced
punishment of an aggravated state jail felony (i.e., a § 12.35(c) state jail felony)[.]").
In Campbell, the State enhanced an unaggravated state jail felony offense with two
prior sequential state jail felony convictions. Campbell, 49 S.W.3d at 875. The trial court
provided the jury with punishment instructions for a second-degree felony, pursuant to
subsection 12.42(a)(2). Id. On appeal, the court of appeals affirmed, finding the term
"felonies," as used in subsection 12.42(a)(2), to include state jail felonies. Id. Applying the
rules for statutory interpretation, the Court of Criminal Appeals reversed, holding the terms
"felony" and "state jail felony" as used in subsection 12.42(a) "are mutually exclusive; a
defendant charged under subsection 12.35(a) who has previously acquired only state-jail
felony convictions, whether sequential or non-sequential, must be punished for a third-degree
felony under subsection 12.42(a)(1), rather than a second-degree felony under subsection
12.42(a)(2)." Id. at 878. Immediately below this holding, the Court made the following
observation, albeit in the form of dicta:
Finally, we note the lack of a provision in the current statute for enhancement
for an offender under subsection 12.35(a) who has two previous non-sequential, unaggravated non-state jail felony convictions. The statute as
written also does not impose an increased punishment for offenders who have
two previous convictions in the form of both a single prior state jail felony and
a single prior non-state jail felony. If such lack of enhancement in either case
is in fact an oversight in the statute, it is the business of the legislature, rather
than this court, to correct it.
Id.
For our purposes, section 12.42(a)(1) does indeed provide specific language
permitting LeDay's unauthorized use of a vehicle conviction, an unaggravated state jail
felony, to be punished as a third-degree felony with proof of his two 2003 state jail felony
convictions. See Tex. Pen. Code Ann. § 12.42 (a)(1). However, section 12.42 does not
provide a further increase of punishment exposure for an unaggravated state jail felony
conviction, already enhanced to a third-degree felony under subsection 12.42(a)(1). On the
other hand, subsection 12.42(a)(2) does subject an unaggravated state jail felony conviction
to second-degree felony punishment, but only upon proof of two sequential felony
convictions, other than state jail felonies. See Campbell, 49 S.W.3d at 878. Aside from the
1996 felony conviction, the record before us does not contain proof of a second qualifying
felony conviction, sequential or otherwise. Thus, based upon the statutory analyses discussed
in Campbell and Webb, we must conclude that the trial court's punishment instruction
permitting the jury to consider the second-degree punishment range was reversible error as
the punishment range was not statutorily authorized. "Sentences not authorized by law are
void." Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991). We sustain LeDay's
appellate issue. We reverse that portion of the judgment pertaining to the assessment of
LeDay's punishment and remand this cause to the trial court for a new punishment hearing
only. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon 2006).
REVERSED AND REMANDED.
__________________________________
CHARLES KREGER
Justice
Submitted on February 22, 2007
Opinion Delivered July 11, 2007
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
| {
"pile_set_name": "FreeLaw"
} |
172 F.3d 882
U.S.v.Hands*
NO. 97-6848
United States Court of Appeals,Eleventh Circuit.
February 09, 1999
Appeal From: S.D.Ala. , No.96-00231-CR-1
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
510 U.S. 1015
Crispv.Murray, Director, Virginia Department of Corrections.
No. 93-6353.
Supreme Court of United States.
December 6, 1993.
1
Appeal from the C. A. 4th Cir.
2
Certiorari denied. Reported below: 996 F. 2d 1210.
| {
"pile_set_name": "FreeLaw"
} |
Opinion issued December 13, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00223-CV
———————————
IN THE INTEREST OF A.C., A CHILD
On Appeal from the 313th Judicial District Court
Harris County, Texas
Trial Court Case No. 2010-05720J
OPINION
This is an appeal from the termination of the parental rights of a mother with
respect to her daughter, A.C. See TEX. FAM. CODE ANN. § 161.001 (West Supp.
2012). On appeal, the mother contends that the evidence was legally and factually
insufficient to support the termination of her parental rights and the naming of the
Department of Family and Protective Services as sole managing conservator, rather
than the child’s paternal grandmother. She also challenges two of the trial court’s
evidentiary rulings: the exclusion of evidence of alleged bias and prejudice of the
Department and the ad litem attorneys in the case, and the admission of the
testimony of an expert witness.
Because the evidence is sufficient to support the trial court’s judgment, and
the mother has failed to preserve error with respect to the evidentiary issues, we
affirm.
Background
When the mother was four months pregnant with A.C., she tested positive
for cocaine use during a doctor’s visit and first drew the attention of the
Department. Two months later, the school that her three older children attended
contacted the Department. The children appeared “dirty” and the Department
became concerned about possible malnutrition, abuse, and neglect in the home.
After unsuccessfully attempting to provide home-based services to the mother and
the older children, the Department decided to remove the three children. At that
time, the mother was approximately six months pregnant, and she again tested
positive for drug use. After the removal of the three older children, the
Department enrolled both of A.C.’s biological parents in a program to receive
family support services so they could resolve certain identified issues and be
reunited with the children.
2
When A.C. was born a few months later, both mother and child tested
negative for drugs. But the Department began to investigate the mother again
because she had tested positive for drugs during the pregnancy. The Department
ultimately removed A.C., placing her with her paternal grandmother at the
mother’s request. Approximately three months later, after the guardian ad litem
and attorney ad litem raised concerns about the lack of a complete home study on
the placement, the child was moved to a foster home. The foster parents bonded
with A.C., and by the time of the termination hearing they had formed a plan to
adopt her.
After A.C.’s removal, the mother and the father tested positive for cocaine.
While the child was still placed at her grandmother’s home, the mother again
tested positive for cocaine use. This positive test result came after she completed a
family services substance abuse program. A few months later, the mother was sent
to jail for violating her probation, which she had received for an earlier bank fraud
charge, because she had tested positive for cocaine.
In March 2011, almost a year after A.C.’s birth, the mother’s parental rights
were terminated with respect to her three older children. That termination was
based on the findings that the mother had knowingly placed the children in
surroundings endangering their well-being under Texas Family Code
section 161.001(1)(D), engaged in conduct endangering their well-being under
3
section 161.001(1)(E), and failed to comply with a court order establishing the
actions she needed to undertake to achieve the children’s return under
section 161.001(1)(O). The Department notified the mother that it was seeking
termination of her parental rights to A.C. A few months later, she again tested
positive for cocaine abuse.
The jury made several findings based on clear and convincing evidence
which supported termination of the parent-child relationship between the mother
and A.C. The court adopted these findings and entered a final decree of
termination. The mother then brought this timely appeal.
Analysis
I. Sufficiency of the evidence
In her first and second issues, the mother challenges the legal sufficiency of
the evidence supporting the judgment terminating her parental rights to the child
and awarding sole managing conservatorship to the Department rather than to the
child’s paternal grandmother. In her brief, the mother also challenges the factual
sufficiency of the evidence supporting the termination decision, but she did not
timely file a motion for new trial. Because a motion for new trial is a prerequisite
to a complaint on appeal that the evidence is factually insufficient to support a jury
finding, her factual sufficiency complaint is waived. TEX. R. CIV. P. 324(b)(2).
4
Protection of the best interests of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and
control of her child is a precious liberty interest protected under the Constitution.
See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000);
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982).
Accordingly, termination proceedings are strictly scrutinized on appeal. See
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence
must support the decision to terminate parental rights. In re J.F.C., 96 S.W.3d
256, 263–64 (Tex. 2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at
1391–92.
Evidence is legally sufficient if it is “such that a factfinder could reasonably
form a firm belief or conviction about the truth of the matter on which the State
bears the burden of proof.” In re J.F.C., 96 S.W.3d at 265–66; see TEX. FAM.
CODE ANN. § 101.007 (West 2008). We review “the evidence in the light most
favorable to the judgment,” meaning that we “must assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do
so.” Id. at 266. “If, after conducting its legal sufficiency review of the record
evidence, a court determines that no reasonable factfinder could form a firm belief
5
or conviction that the matter that must be proven is true, then that court must
conclude that the evidence is legally insufficient.” Id.
A. Termination of parental rights
In proceedings to terminate the parent-child relationship, the Department
must establish that one or more of the acts or omissions listed in Family Code
section 161.001(1) occurred and that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and
termination may not be based solely on the best interest of the child as determined
by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987). “Only one predicate finding under section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is
in the child’s best interest.” In re A.V., 113 S.W.3d at 362.
Here the Department sought termination of the mother’s parental rights on
grounds of endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), having had
her parental rights to her other children terminated, see id. § 161.001(1)(M),
constructive abandonment, see id. § 161.001(1)(N), failure to comply with a court
order, see id. § 161.001(1)(O), and testing positive for substance abuse after
completion of a substance abuse treatment program, see id. § 161.001(1)(P). In the
termination order based on the jury verdict, the trial court expressly found that
these five statutory provisions were met, termination was in the best interest of the
6
child, appointment of a parent or relative of the child as managing conservator
would not be in the child’s best interest, and appointment of the Department as sole
managing conservator was in the child’s best interest.
1. Predicate grounds for termination (§ 161.001(1))
The evidence the Department presented was sufficient to support the finding
that one or more of predicate acts listed in section 161.001(1) had occurred. See In
re A.V., 113 S.W.3d at 362. The Department introduced evidence supporting
several predicate acts.
a. Prior termination decree (§ 161.001(1)(M))
To establish the ground for termination described in section 161.001(1)(M),
the Department offered into evidence the decree terminating the mother’s parent-
child relationship with her other children. Paragraph (M) applies when the parent
“had his or her parent-child relationship terminated with respect to another child
based on a finding that the parent’s conduct was in violation of Paragraph (D) or
(E).” TEX. FAM. CODE ANN. § 161.001(1)(M). The prior termination decree in this
case contained a finding that the mother had endangered her children both by
placing them in unsafe conditions under section 161.001(1)(D) and by engaging in
endangering conduct under section 161.001(1)(E).
The mother challenges whether this decree could be used to prove a prior
termination because the decree, and therefore the termination, was on appeal and
7
thus not necessarily final. The prior decree stated that “this case is not final until
[the trial court’s] plenary jurisdiction from this final judgment expires, and all
appeals, if any, have concluded.” While acknowledging that the “case” was not
final and accordingly maintaining the appointment of the attorneys ad litem and the
guardian ad litem, the decree reiterated that “this judgment is final.” But finality,
in the sense of a complete exhaustion or waiver of all possible appellate remedies,
is not expressly required by the text of the statute. See TEX. FAM. CODE ANN.
§ 161.001(1)(M).
The mother’s appeal of the prior termination decree did not suspend the
effect of that decree. TEX. FAM. CODE ANN. § 109.002(c) (West Supp. 2012) (“An
appeal from a final order, with or without a supersedeas bond, does not suspend the
order unless suspension is ordered by the court rendering the order.”); see TEX. R.
APP. P. 24.2(a)(4) (“When the judgment involves the conservatorship or custody of
a minor . . . enforcement of the judgment will not be suspended”). The mother did
not establish and does not argue that the prior decree at issue in this case was ever
suspended. In other words, the prior termination decree effectively terminated her
parent-child relationship at and as of the time of the trial, despite the fact that the
order was still subject to review on appeal. Cf. Street v. Honorable Second Court
of Appeals, 756 S.W.2d 299, 302 (Tex. 1988) (acknowledging that “a trial court
8
judgment is final for the purposes of issue preclusion or collateral estoppel despite
the pendency of an appeal”).
The trial court admitted into evidence a prior decree that ordered termination
of the mother’s rights for reasons of endangerment under subsections (D) and (E).
Just as a trial court’s judgment is effective for purposes of precluding relitigation
between the same parties on the same issues, the judgment is also effective for the
purpose of presenting evidence to the factfinder of a prior termination. We hold
that the statute requires no greater finality than this, and accordingly there was
legally sufficient evidence to show that the mother had her rights terminated as to
other children for purposes of section 161.001(1)(M).
b. Endangerment of the child (§ 161.001(1)(E))
Additionally, the Department presented evidence that the mother’s conduct
during pregnancy and after the child’s birth met the requirements of several other
predicate acts under the Family Code. The mother admitted that she had used
cocaine during her pregnancy with the child, and that she did so even though she
knew that she could have harmed the child by taking drugs. She admitted she
tested positive for cocaine again after the child was removed from her care. She
admitted using cocaine after completing a court-ordered substance abuse treatment
program. The mother also admitted to failing to complete her court-ordered
parenting classes because she had tested positive for drug use while on deferred
9
adjudication and jailed for 85 days. After she was released from jail, she again
tested positive for drug use. The mother admitted that her continued drug
problems put the child at risk and that she had engaged in conduct harmful to the
child.
The evidence of the mother’s continuing use of illegal drugs and admission
that such use put the child at risk supports the conclusion that the mother had
engaged in conduct that endangered the physical and emotional well-being of the
child. See TEX. FAM. CODE ANN. § 161.001(1)(E). As the Supreme Court of Texas
has noted, a parent’s use of narcotics and its effect on his or her ability to parent
may qualify as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009). The mother’s continued illegal drug use, combined with the fact
that such use violated both her court-ordered reunification plan and the terms of
her deferred adjudication from an earlier conviction, established clear and
convincing proof of deliberate conduct that endangered the well-being of her child.
See Robinson v. Texas Dep’t of Family & Protective Servs., 89 S.W.3d 679, 686–
87 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Having considered all of this evidence, we conclude the evidence is
sufficient to form a firm belief in the minds of the jurors that the mother committed
at least one of the predicate acts justifying termination as listed in the Family Code.
10
2. Best interest findings (§ 161.001(2))
In determining whether termination of the mother’s parental rights was in
the child’s best interest, we consider numerous factors, including (1) the child’s
desires, (2) the current and future physical and emotional needs of the child, (3) the
current and future physical danger to the child, (4) the parental abilities of the
person seeking custody, (5) whether programs are available to assist the person
seeking custody in promoting the best interests of the child, (6) plans for the child
by the person seeking custody, (7) stability of the home, (8) acts or omissions of
the parent that may indicate that the parent-child relationship is not proper, and
(9) any excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976). There is no requirement that the Department prove all
these factors as a condition precedent to parental termination, and the absence of
evidence about some factors does not preclude a factfinder from reasonably
forming a strong conviction that termination is in the child’s best interest. See In
re C.H., 89 S.W.3d at 27.
The Holley factors are not necessarily the only considerations relevant to
determining the best interest of the child. “[T]he prompt and permanent placement
of the child in a safe environment is presumed to be in the child’s best interest.”
TEX. FAM. CODE ANN. § 263.307(a) (West 2008). In determining whether a parent
is willing and able to provide a safe environment, we consider several factors,
11
including (1) the child’s and vulnerabilities; (2) developmental evaluations of the
child’s parents, other family members, and others who have access to the child’s
home; (3) whether there is a history of substance abuse by the child’s family or
others who have access to the child’s home; (4) willingness and ability of the
child’s family to seek, accept, and complete counseling services and cooperate
with agency supervision; (5) the willingness and ability of the child’s family to
effect positive changes within a reasonable period of time; and (6) whether the
child’s family demonstrates adequate parenting skills. Id. § 263.307(b). Evidence
establishing one of the predicate acts under section 161.001(1) also may be
relevant to determining the best interest of the child. See In re C.H., 89 S.W.3d at
27-28.
There is strong evidence in this case that the mother regularly used illegal
drugs both during her pregnancy with the child and after undergoing a treatment
program. See Robinson, 89 S.W.3d at 688–89 (considering a similar pattern of
drug use as favoring termination as being in the best interest of children). This
pattern of illegal drug use suggests the mother was not willing and able to provide
the child with a safe environment—a primary consideration in determining the
child’s best interest. See TEX. FAM. CODE ANN. § 263.307. The mother admitted
she had used drugs during her pregnancy even though she knew it might harm the
child. She tested positive for drugs the month after the child was removed. And
12
she used drugs even though that violated the conditions of her probation, resulting
in her going to jail, away from the child. See id. § 263.307(b)(8) (considering
whether the child’s family has a history of substance abuse). This evidence weighs
against the mother under the third and eighth Holley factors focusing on physical
danger to the child and any actions indicating an improper parent-child
relationship.
The fifth Holley factor considering the availability of programs for the
mother also weighs against the mother. She completed parts of the Department’s
family services plan, but she continued to use drugs and never completed the entire
program. See id. § 263.307(b)(10) (considering willingness and ability of family to
complete counseling services); Robinson, 89 S.W.3d at 688–89 (termination in
children’s best interest when mother continued to use drugs and left ameliorative
family support programs incomplete). The mother admitted at trial that after she
got out of jail for violating her deferred adjudication provisions, she did not resume
participating in either family service programs or a twelve-step program,
explaining that she had not wanted to ask for time off from work in the months
immediately following her release. This excuse may justify failing to resume the
family services for a short time under the ninth Holley factor, but it does not justify
failing to participate in any counseling program at all after leaving jail.
13
Beyond drug use, the evidence also establishes that the mother experienced
difficulties in providing the child with a safe environment, disfavoring the mother
under the seventh Holley factor, which considers the stability of the home. See In
re C.H., 89 S.W.3d at 28 (weighing evidence that a parent had a criminal history
involving drugs, no concrete plans to provide support, and remaining apart from
children in favor of finding that termination was in children’s best interest). The
mother took the child to Florida immediately after her birth, making it difficult for
the Department to locate her and provide services. See TEX. FAM. CODE ANN.
§ 263.307(b)(10) (considering willingness to cooperate with and facilitate agency’s
close supervision). Both the mother and the father were homeless or living out of a
motel until about a month before the termination trial. The mother continued to
stay with the father, who she admitted had a drinking problem and a history of
criminal convictions. See id. § 263.307(b)(8) (considering “whether there is a
history of substance abuse by the child’s family or others who have access to the
child’s home”).
In contrast, the evidence presented about the foster parents seeking custody
showed them as stable and caring, favoring them under the second and seventh
Holley factors that consider the needs of the child and the stability of the home.
The foster parents provided continuous care to the child from her placement with
them until the time of trial. The home environment with the foster parents was
14
shown to be a nurturing one. The Department observed the child was healthy and
had current vaccinations and dental check-ups. The child had called the foster
parents’ parents “maw-maw” and “paw-paw” and played with the foster family’s
young relatives, showing that the foster parents were attempting to meet the
emotional needs of the child.
The Department also presented evidence favoring the foster parents under
the sixth Holley factor considering the custodians’ plans for the child. The foster
parents intended to adopt A.C. and to keep her in the family. The foster father
stated that he would want the child to know her paternal grandmother because he
believes family should stay in touch.
We conclude that the evidence presented was sufficiently clear and
convincing to support a fixed belief that termination of the mother’s rights would
be in the best interests of the child. The Department presented evidence that the
mother’s conduct had placed the child in physical danger, undermined her
parenting skills and the availability of family services, and indicated an improper
parent-child relationship under the third, fourth, fifth, and eighth Holley factors.
No factor weighed in the mother’s favor. The young age of the child rendered
consideration of the child’s desires neutral. On the other hand, the evidence
presented about the foster parents showed that they were meeting the child’s needs,
15
had positive plans for the child, and provided a stable home under the second,
sixth, and seventh Holley factors.
Accordingly, we overrule the mother’s challenges to the sufficiency of the
evidence to support termination.
B. Conservatorship of the child
The mother also challenges the sufficiency of the evidence to support the
finding that appointment of the Department as managing conservator of A.C. is in
her best interest. The mother acknowledged at trial that she did not request to be
appointed the child’s managing conservator, but she argues that the child’s paternal
grandmother should have been appointed. The mother essentially argues that the
appointment of “blood kin” conservators serves the child’s best interest more than
unrelated conservators.
We review the trial court’s conservatorship decision under a less stringent
standard of review than the standard for termination. In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007). Conservatorship determinations are subject to review only for
abuse of discretion, and they may be reversed only if the decision is arbitrary and
unreasonable. Id.; In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st
Dist.] 2002, pet. denied). “Jury findings underlying a conservatorship appointment
are subject to ordinary legal and factual sufficiency review.” J.A.J., 243 S.W.3d at
616 n.5.
16
Family Code section 161.207 directs the court to appoint a suitable,
competent adult, the Department, a licensed-child placing agency, or an authorized
agency as managing conservator of the child. TEX. FAM. CODE ANN. § 161.207
(West 2008). In contrast to the presumption of appointment given to a child’s
parents, see id. § 153.131, there is no statutory presumption that a grandparent
should be preferred over other non-parents. See TEX. FAM. CODE ANN. § 161.207;
In re J.R.P., 55 S.W.3d 147, 152 (Tex. App.—Corpus Christi 2001, pet. denied); In
re H.G.H., No. 14-06-00137-CV, 2007 WL 174371, at *9-10 (Tex. App.—
Houston [14th Dist.] Jan. 25, 2007, no pet.) (memo op.).
The primary consideration in determining conservatorship is always the best
interest of the child. TEX. FAM. CODE ANN. § 153.002. In determining that
appointment of a party as managing conservator is in the child’s best interest, the
court must consider both the section 263.307 factors and the Holley factors
described above. Dep’t of Family & Protective Servs. v. Alternatives in Motion,
210 S.W.2d 794, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
Applying those factors, there was sufficient evidence supporting the jury’s finding
that appointment of the Department is in the best interest of the child.
Although the child has noted respiratory problems, the paternal grandmother
and her partner smoke in their house and the smell of smoke was found on the
child’s clothing. See TEX. FAM. CODE ANN. § 263.307(b)(1) (noting the child’s age
17
and physical vulnerabilities should be considered in determining a safe
environment for the child). The harm that smoking may cause to a child with a
respiratory problem weighs against the grandmother under the second and third
Holley factors, which require consideration of the needs of the child and physical
danger to the child. Additionally, there was evidence presented that the
grandmother would allow the mother and the child’s father to stay and visit,
despite their history of alcohol and drug abuse and multiple criminal charges
against the father. See id. § 263.307(b)(8). The grandmother also could have been
determined to have not been properly protective of the child as she did not seem to
understand the full extent of the mother’s and father’s drug use. This evidence
suggests an improper parent-child relationship under the eighth Holley factor.
Compared to the evidence that the foster parents had provided a stable and
healthy environment for the child with access to a supportive extended family, see
id. § 263.307(b)(13) (considering whether there is a “social support system
consisting of an extended family and friends” for the child), there is sufficient
evidence supporting the jury’s determination to name the Department as sole
managing conservator. The Department presented evidence under the Holley
factors that conservatorship by the grandmother would not be in the child’s best
interest. We therefore overrule the mother’s second issue.
18
II. Evidentiary issues
A. Exclusion of evidence of systemic bias and prejudice
In her third issue, the mother alleges that the trial court erred by excluding
“relevant evidence of bias and corruption . . . presented for consideration by the
jury” when the court denied her “the right to make a timely proffer.” Rule 103(b)
of the Rules of Evidence provides that the “offering party shall, as soon as
practicable, but before the court’s charge is read to the jury, be allowed to make, in
the absence of the jury, its offer of proof.” TEX. R. EVID. 103(b). The trial court
expressly told the mother, before the charge was read, to make her offer of proof
“whenever” she wished. The mother failed to timely act on this invitation, and
instead she offered her proof after the charge was read to the jury. Therefore, we
have no basis to review her third issue and we hold that the mother has waived any
error in regard to it. See Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811, 815
(Tex. App.—Houston [1st Dist.] 2004, pet. denied).
B. Admission of expert witness testimony
In her fourth and final issue, the mother challenges the testimony of a former
Department employee who had testified in the mother’s previous termination
proceeding, Lisa McCartney, as a qualified expert witness. The mother has not
preserved this complaint through a timely objection, which would have required a
timely and specific objection followed by an adverse ruling. TEX. R. APP. P. 33.1;
19
see Austin v. Weems, 337 S.W.3d 415, 423–24 (Tex. App.—Houston [1st Dist.]
2011, no pet.). If a party later permits the same or similar evidence to be
introduced without objection, generally the error in the admission of testimony is
harmless and is waived. Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897,
907 (Tex. 2004). But if the party obtains a running objection, the party need not
object every time the evidence is offered. Id.
Here the record shows that the mother failed to preserve error. She failed to
obtain a running objection or to object when McCartney took the stand. After voir
dire of the jury panel, the trial court had the following dialogue with the mother’s
attorney regarding McCartney’s testimony:
MOTHER’S ATTORNEY: Because it is a new trial, I think I need to
reurge my objection to Ms. McCartney being an expert. So, I don’t
know if you want to carry the Daubert hearing over [from the previous
termination trial]. How do you want to do it?
...
THE COURT: I don’t want Ms. McCartney to take the stand and
there be a bunch of objections about qualifications and expertise. And
I am willing to attach the previous records. If that’s agreeable to the
parties, I will attach it.
MOTHER’S ATTORNEY: Yes, sir. That’s fine.
THE COURT: The Court is finding Ms. McCartney is an expert, and
that she is going to be allowed to remain in the courtroom as the
expert, and to testify as an expert, but I will attach the previous
testimony and your objection and all of the cross and everything to the
record in this new trial.
20
MOTHER’S ATTORNEY: And, Judge, just for the record, I believe
to preserve the error for appeal that when it comes time for her to-
THE COURT: You can make another objection all over.
MOTHER’S ATTORNEY: I have to make it, once, to her being an
expert.
The end of the discussion indicates that counsel for the mother had understood that
she had not obtained a running objection. The mother’s attorney positively
acknowledged that she needed to make another objection to McCartney’s
testimony to preserve error. Then when McCartney took the stand, the mother
failed to object to the admissibility of her testimony as inadmissible or her
qualification as an expert. Thus, the mother waived her objection to McCartney’s
testimony as an expert witness. See TEX. R. APP. P. 33.1.
Conclusion
In sum, we conclude that the Department presented sufficient evidence to
support the jury’s findings and the verdict terminating the parent-child relationship
and awarding sole conservatorship to the Department. The mother has waived her
other complaints. Accordingly, we affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
21
| {
"pile_set_name": "FreeLaw"
} |
145 N.J. Super. 22 (1976)
366 A.2d 996
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY ANEPETE, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted October 6, 1976.
Decided October 19, 1976.
*23 Before Judges LORA, CRANE and MICHELS.
*24 Messrs. Cascone & Hofing, attorneys for appellant (Mr. Seymour Hundley, Jr., of counsel and on the brief).
Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Ms. Jane E. Deaterly, Deputy Attorney General, of counsel and on the brief).
PER CURIAM.
Defendant was found guilty by a jury of larceny and was sentenced to Mercer County Corrections Center for a term of 12 months, six months of which were suspended. He appeals.
According to the State's proofs, defendant, a police officer employed by the City of Trenton, and another police officer stole automobile tires, oil and filters from a gas station located in Trenton. Part of the State's proofs consisted of a taped conversation between defendant and Joseph Galambos, an employee of the gas station, in which defendant made incriminating statements. Prior to the conversation Galambos had consented to wear an electronic transmitter which was placed on his person and enabled the police investigating the theft to overhear and record the conversation between Galambos and defendant.
Defendant does not contend that the verdict was contrary to the weight of the evidence. Rather, in his brief he raises the following issues:
POINT I Whether or not defendant's Fourth Amendment right to privacy as protected by the amendment's prohibition against unreasonable search and seizure was violated where defendant's incriminating statements, induced to be made by a party to the conversation who was equipped with a concealed microphone, were transmitted to, overheard and recorded by law enforcement officers secreted in close proximity to the place where such statements were made.
POINT II To protect essential civil rights and liberties by the Bill of Rights against arbitrary police action, constitutional safeguards guaranteed to all people involved in criminal proceeding are not to be circumvented by State action.
*25 POINT III Failure of trial court to recognize the circumvention of the defendant's Fourth, Fifth and Sixth Amendment right under the Federal Constitution was plain error sufficient to warrant a reversal of defendant's conviction of larceny.
We have considered each of these issues and the arguments advanced in support of them and find them clearly without merit.
At the outset we note that a motion to suppress evidence obtained in violation of the Fourth Amendment must be made before trial; otherwise it is deemed waived. R. 3:5-7(a) and (c). See State v. McKnight, 52 N.J. 35, 48 (1968); State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. den. 59 N.J. 293 (1971); State v. Cox, 114 N.J. Super. 556, 559-560 (App. Div.), certif. den. 58 N.J. 93 (1971). Here, no such motion to suppress the recorded conversation was made, nor was any objection to such evidence as the product of an unconstitutional search made at the trial, and no justification has been offered by defendant for his failure to invoke R. 3:5-7(a). Consequently, defendant has waived any objection to the admissibility of the recordings on Fourth Amendment grounds. Cf. State v. DiRienzo, 53 N.J. 360, 384 (1969).
Notwithstanding this, we have considered the merits of defendant's claim that the recording of his conversation without a court order constituted an unreasonable search and seizure and violated his Fourth Amendment rights. The electronic transmission of the conversation between defendant and Galambos, although obtained without a court authorization, fully complied with the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act. N.J.S.A. 2A:156A-1, et seq. Galambos, who was a party to the communication, had given prior consent to the transmission and recording of his conversation, and consequently the interception was not unlawful. N.J.S.A. 2A:156A-4. In these circumstances we are satisfied that no interest legitimately protected by the Fourth Amendment is involved, and *26 that the recording was properly admitted in evidence. See United States v. White, 401 U.S. 745, 749-750, 91 S.Ct. 1122, 1124-1125, 28 L.Ed.2d 453, 457-458 (1971); Hoffa v. United States, 385 U.S. 293, 300-303, 87 S.Ct. 408, 412-414, 17 L.Ed.2d 374, 381-383 (1966); Lopez v. United States, 373 U.S. 427, 437-439, 83 S.Ct. 1381, 1387-1388, 10 L.Ed.2d 462, 469-471 (1963); On Lee v. United States, 343 U.S. 747, 753-754, 72 S.Ct. 967, 972, 96 L.Ed. 1270, 1275-1276 (1952). But cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
We are also satisfied that there is no merit in the claim that defendant's Fifth and Sixth Amendment rights were violated. Substantially the same arguments made here were made and rejected by the United States Supreme Court in Hoffa v. United States, supra. Furthermore, defendant's claim that the "broad sweep of Miranda engulfs the facts surrounding his interrogation and arrest which was a conscious circumvention of his constitutionally safeguarded rights" is frivolous. The constitutional safeguards set down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are not involved, and no constitutional right guaranteed defendant was infringed by transmitting and recording his conversation with Galambos. Accordingly, we are satisfied that the trial judge did not commit any error, let alone plain error, in admitting in evidence the recorded conversation between defendant and Galambos. See R. 2:10-2.
Beyond this, even making a dubious assumption that error was committed by the trial judge, as claimed by defendant, that error did not, in view of the evidence of guilt, reach dimensions "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
734 F.2d 1322
UNITED STATES of America, Plaintiff-Appellee,v.Wilbert Leon JENKINS, Defendant-Appellant.
No. 82-1352.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 1, 1982.Decided June 28, 1983.
John J. Cleary, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.
John Houston, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before FLETCHER, NELSON and REINHARDT, Circuit Judges.
FLETCHER, Circuit Judge:
1
* Wilbert Leon Jenkins, a civilian, and his friend, a Marine, requested permission to enter the Camp Pendleton military base. They were directed to a gatehouse on the base where they could obtain a pass. At the gatehouse, officials detained Jenkins in order to check his apparently altered automobile registration card. Jenkins's friend and an official began to argue about the necessity of the detention; the argument turned into a scuffle. Meanwhile, a military policeman approached Jenkins and held him by the right arm in order to restrain him. Jenkins attempted to strike the military policeman with his left elbow. Although the policeman grabbed Jenkins's elbow and cushioned the blow, the momentum of the attempt caused both to lose balance and fall backwards through a large plate glass window.
2
Jenkins was charged with assault by striking, beating, or wounding, in violation of 18 U.S.C. Sec. 113(d) (1976). Jenkins gave his written consent to be tried by a magistrate on the assault charge and requested a jury trial, which was granted. The Government then filed a superseding information charging Jenkins with simple assault in violation of 18 U.S.C. Sec. 113(e) (1976). A simple assault charge carries a maximum punishment of three months in prison, a $300 fine, or both. Jenkins's request for a jury trial on the superseding charge was denied. After a court trial, the magistrate convicted Jenkins of simple assault, gave him a ninety-day suspended sentence, and placed him on probation for two years.
3
Jenkins appealed to the district court. The district court judge entered an order affirming the conviction and sentence of the magistrate. Jenkins then filed this timely appeal. We note jurisdiction under 28 U.S.C. Sec. 1291 (1976), and affirm.
II
4
Jenkins first challenges the constitutionality of 28 U.S.C. Sec. 636(a)(3) (1976), a provision of the Federal Magistrates Act that authorizes magistrates to conduct trials of misdemeanors with the consent of the defendant. Jenkins contends that a federal criminal case must be tried before an Article III judge.
5
The Government responds: (1) that as applied in this case the Magistrates Act is constitutional even though magistrates are not Article III judges.1 Jenkins was convicted of assault within a federal enclave, and thus, the Government argues, no Article III judge was required; (2) even if an Article III judge were required, the Government continues, the statute is constitutional. Because the statute requires that defendants consent to trial before the magistrate, the defendants waive any rights they may have to trial before an Article III judge and thus the consent cures any jurisdictional infirmities engendered by trial before an Article I tribunal; and (3) that the magistrate merely functions as an adjunct to the district court; "jurisdiction" still lies in the district court, and the magistrate simply aids the district court in its factfinding function. Because we agree with the Government's first argument, that the Magistrates Act is constitutional as applied in this case, we do not reach the Government's other contentions.
6
* We begin with the established rules that a court should never anticipate constitutional law questions and never formulate a rule of constitutional law broader than that necessary to resolve the case before it. See United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). We subscribe to the sensible proposition that in the complex area of Article III jurisdiction these rules have special force. See Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 2881, 73 L.Ed.2d 598 (1982) (Rehnquist, J., concurring). Thus, although Jenkins mounts a general attack on the constitutional validity of 28 U.S.C. Sec. 636(a)(3) (1976), we examine the facts before us to determine whether we need resolve this broad question.
B
7
Jenkins was convicted of committing simple assault "within the special maritime and territorial jurisdiction of the United States." 18 U.S.C. Sec. 113(e) (1976). Camp Pendleton, where the assault occurred, is a federal enclave that falls within this special territorial jurisdiction. See 18 U.S.C. Sec. 7(3) (1976). The United States exercises exclusive criminal jurisdiction over Camp Pendleton.2 Thus, in this case, we face only the narrow question whether a party charged with committing a federal crime on a federal enclave must be tried before an Article III judge.
C
8
The Constitution grants Congress the authority over federal enclaves, by providing that Congress has the power
9
to exercise exclusive Legislation in all Cases whatsoever, over [the District of Columbia], and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for Erection of Forts ... and other needful Buildings.
10
U.S. Const. art. I, Sec. 8, cl. 17. The Congressional power under clause 17 is plenary. See Palmore v. United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 1676, 36 L.Ed.2d 342 (1973). When Congress legislates with respect to the District of Columbia and federal enclaves it acts as a state government with all the powers of a state government. See id.; Paul v. United States, 371 U.S. 245, 263, 83 S.Ct. 426, 437, 9 L.Ed.2d 292 (1963).
11
In Palmore, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), the Supreme Court considered "whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. III of the Constitution." Id. at 390, 93 S.Ct. at 1672. The Court held that under clause 17 Congress could provide that such a defendant be tried before a non-Article III judge. Id. at 390-91, 93 S.Ct. at 1672-73.
12
Because clause 17 does not distinguish between the District of Columbia and other federal enclaves, we find Palmore indistinguishable from the instant case and controlling. See Paul v. United States, 371 U.S. at 263, 83 S.Ct. at 437 ("The power of Congress over federal enclaves that come within the scope of Art. I, Sec. 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia"). In addition, the reasoning of Palmore is fully applicable here. Under clause 17 Congress acts as a state government with total legislative, executive and judicial power. Palmore, 411 U.S. at 397, 93 S.Ct. at 1676; see Marathon Pipe Line Co., 102 S.Ct. at 2873-74 (discussing the rationale of Palmore ). The Constitution does not require that all federal criminal law be enforced before Article III courts. Palmore, 411 U.S. at 400, 93 S.Ct. at 1677; see Swain v. Pressley, 430 U.S. 372, 382-83, 97 S.Ct. 1224, 1230-31, 51 L.Ed.2d 411 (1977). Thus, the requirements of Article III are consistent with the establishment by Congress of non-Article III courts to enforce federal criminal laws in special geographic areas where, pursuant to clause 17, it functions as a state government. Palmore, 411 U.S. at 407-08, 93 S.Ct. at 1681-82; see Marathon Pipe Line Co., 102 S.Ct. at 2874 (emphasizing Congress's unique power under Art. I, Sec. 8, cl. 17, to legislate in certain geographic areas).
13
Under the rationale and holding of Palmore, we conclude that the Constitution does not require that a defendant charged with violation of a criminal statute enacted pursuant to Congress's power under clause 17 be tried before an Article III judge. Thus, Jenkins's Article III objection to his trial by magistrate fails.
III
14
Jenkins's second argument is that the punishment actually imposed on him, particularly the two years probation, is so severe that it converts his offense into a "serious" one entitling him to a jury trial. The constitutional right to a jury trial attaches only to "serious" offenses, and not "petty" offenses. Frank v. United States, 395 U.S. 147, 148-49, 89 S.Ct. 1503, 1504-05, 23 L.Ed.2d 162 (1969); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). The Court has generally used the severity of the penalty authorized by the legislature, and not the penalty actually imposed, as the appropriate objective indication of the societal judgment of the seriousness of an offense. Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) (plurality opinion); Frank, 395 U.S. at 148, 89 S.Ct. at 1504; Duncan v. Louisiana, 391 U.S. 145, 161-62, 88 S.Ct. 1444, 1453-54, 20 L.Ed.2d 491 (1968)3. Ordinarily, the Court considers the offense "petty" if the maximum penalty provided by Congress does not exceed six months imprisonment, a $500 fine, or both. Duncan, 391 U.S. at 161, 88 S.Ct. at 1453. In this case, the maximum penalty for simple assault is three months in prison, or a $300 fine, or both.
15
The seriousness of the offense is not changed by the imposition of a two-year probation term. The Court held in Frank that the three-year probationary period imposed by the district court did not entitle the defendant to a jury trial. 395 U.S. at 150, 89 S.Ct. at 1506. Frank is controlling; Jenkins's offense has not been converted into a serious one because he received two-year probation.
IV
16
Jenkins also contends that the magistrate lacked the statutory authority to impose probation for greater than six months following his conviction for a petty offense. This argument is meritless. The statute clearly sets forth the general powers of the magistrate to grant probation. 18 U.S.C. Sec. 3401(d) (1976). An exception to this general power prevents a magistrate from imposing a term of probation longer than six months on a youth offender for a petty offense. 18 U.S.C. Sec. 3401(g)(3) (Supp. III 1979). Jenkins is not a youth offender, and this exception does not affect the general grant of authority contained in 18 U.S.C. Sec. 3401.
17
Jenkins argues that, if the magistrate may impose a longer probation term on an adult offender than on a youth offender convicted of the same offense, his constitutional equal protection rights have been infringed. No fundamental interests have been implicated, nor is Jenkins a member of a suspect class. Therefore, the issue is whether the congressional classification rationally furthers a purpose identified by the legislature. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312-14, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1975). Great deference is paid to the legislative classification under this test. Id. at 314, 96 S.Ct. at 2567.
18
In limiting the magistrate's authority to sentence a youth offender, Congress was concerned about the possibility of youth offenders serving long sentences under the Youth Corrections Act for misdemeanors and petty offenses. H.R.Conf.Rep. No. 444, 96th Cong., 1st Sess. 9-10, reprinted in 1979 U.S.Code Cong. & Ad.News 1487, 1490. Congress emphasized the rehabilitative purposes of the Youth Corrections Act, and the desire to implement that purpose. Id. When challenged on equal protection grounds, statutory distinctions requiring different sentencing treatment based on the age of the offender have been upheld as long as the sentence serves the purpose for which it was designed. See, e.g., United States v. Ballesteros, 691 F.2d 869, 870 (9th Cir.1982); United States ex rel. Murray v. Owens, 465 F.2d 289, 293 (2d Cir.1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973); Cunningham v. United States, 256 F.2d 467 (5th Cir.1958). Jenkins does not argue that the Youth Corrections Act does not meet the rehabilitative purposes for young offenders. Jenkins's right to equal protection under the laws has not been violated by the different treatment accorded youth offenders under the magistrate's sentencing powers.
19
The judgment is AFFIRMED.
1
It is well established that the magistrates are not Article III judges. United States v. Saunders, 641 F.2d 659, 663 (9th Cir.1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); Muhich v. Allen, 603 F.2d 1247, 1251 (7th Cir.1979). They enjoy neither of the protections afforded by Article III: lifetime tenure subject to "good behavior," and undiminishable salaries. Full-time magistrates serve eight-year terms, 28 U.S.C. Sec. 631(e) (Supp. V 1981), and may be removed for "incompetency, misconduct, neglect of duty, or physical or mental disability," id. Sec. 631(i). Furthermore, the magistrate's office may be terminated if the judges in the district determine that those services are no longer needed. Id. The magistrates' salary protections are statutory and their salaries may be diminished by Congress. 28 U.S.C. Sec. 634(b) (1976)
2
Under Article 1, section 8, clause 17, the United States obtains exclusive jurisdiction over land only with the consent of the state. See Paul v. United States, 371 U.S. 245, 264, 83 S.Ct. 426, 437, 9 L.Ed.2d 292 (1963). This can be accomplished through a consensual acquisition or by a condemnation followed by a cession of jurisdiction. See id. at 264-65, 83 S.Ct. at 437-38. After the state consents the United States must formally accept jurisdiction. 40 U.S.C. Sec. 255 (1976); see Paul, 371 U.S. at 264, 83 S.Ct. at 437
In 1942 the United States condemned land in San Diego County, California, for the Camp Pendleton Marine Corps Training Base. See United States v. Fallbrook Public Utility District, 110 F.Supp. 767, 771 (S.D.Cal.1953). California ceded exclusive jurisdiction to the United States and the Secretary of the Navy accepted the cession. See id.; see also People of the State of California v. United States, 235 F.2d 647, 655 (9th Cir.1956).
3
An exception is made in contempt cases, where Congress has not specified the penalty. Then, the court examines the fine or term of imprisonment actually imposed. See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975); Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2690, 41 L.Ed.2d 912 (1974)
The other exceptions to the use of the penalty as a criterion of the gravity of the offense are where collateral consequences attach to the conviction, United States v. Craner, 652 F.2d 23, 25-26 (9th Cir.1981) (conviction for driving under the influence of alcohol is a serious offense because, in addition to a six-month prison term and a $500 fine, a defendant may lose the right to a driver's license), or for some other reason the offense is considered malum in se, see United States v. Arbo, 691 F.2d 862, 864 (9th Cir.1982). Jenkins, however, does not argue that there are any collateral consequences to his conviction, or that his offense should be deemed serious because it is malum in se.
| {
"pile_set_name": "FreeLaw"
} |
J-A11027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA LYNCH
Appellant No. 953 EDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001696-2014
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED June 24, 2016
Appellant, Joshua Lynch, appeals from the March 4, 2015 aggregate
judgment of sentence of 3 to 23 months’ incarceration, imposed after the
trial court convicted Appellant of one count each of fleeing or attempting to
elude police, failing to stop at a red signal, and careless driving. 1 After
careful review, we affirm.
The trial court recounted the facts of record as follows.
On August 2, 2013, Officer Thomas Phillips and
other officers from the Bristol Township Police
Department attempted to effectuate an arrest
warrant for Appellant. The Officers began
surveillance at 605 Winder Ave., Bristol, PA in an
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3733(a), 3112(a), and 3714(a), respectively.
J-A11027-16
attempt to locate Appellant. During his
reconnaissance and while attempting to take
Appellant into custody, Ofc. Phillips observed
Appellant several times, including while driving a
silver Toyota Camry, registration JCF-2006. This
Camry was the same vehicle that was used by
Appellant in a drug transaction days prior.
At approximately 8:34 PM, there were enough
[o]fficers present in the area to effectuate a traffic
stop of Appellant, who was then driving the same
Toyota Camry. Ofc. Phillips was driving directly
behind Appellant in his own vehicle, followed directly
by an undercover police vehicle occupied by Officers
Durle and O’Brien. At a steady red light, Ofc. Phillips
moved his vehicle alongside Appellant’s, ultimately
maneuvering it past the front corner of the target
vehicle, so as to block Appellant’s forward path.
Officers Durle and O’Brien then initiated the
overhead lights of their undercover vehicle, and the
Officers left their vehicles to effectuate an arrest of
Appellant. The Officers were each wearing their
badges around their necks overtop of black bullet-
proof vests with the word “Police” displayed in large
white lettering on the front and back. At this point,
Appellant was the driver and sole occupant of the
Camry.
Ofc. Phillips approached the driver’s side door
of the vehicle, announcing “Police.” Meanwhile, Ofc.
Durle exited his vehicle and approached the
passenger’s side of Appellant’s vehicle. As the
Officers advanced, Appellant “immediately put his
car in Reverse, backed up, turned his vehicle to the
right, jumped the curb onto the sidewalk, drove
down the sidewalk, back onto the roadway and
began fleeing.” Appellant drove between a building
and a telephone pole while driving along the
sidewalk in an attempt to avoid the Police. The
Officers did not have time to draw their weapons as
Appellant was fleeing.
As Appellant pulled away, Ofc. O’Brien began
pursuit in the undercover vehicle. As Ofc. O’Brien
-2-
J-A11027-16
followed Appellant, the overhead lights of his vehicle
remained active, and the Officer further engaged the
vehicle’s audible siren. Ofc. O’Brien pursued
Appellant for approximately six (6) blocks until
Appellant began to drive down a one-way street
against the flow of traffic. At that point, Ofc. O’Brien
discontinued the pursuit due to safety concerns.
Based on the above evidence, th[e trial c]ourt
found Appellant guilty on the charge of Fleeing or
Attempting to Elude Police and the Summary
Offenses of Failure to Stop at a Red Signal and
Careless Driving.
Trial Court Opinion, 6/30/15, at 1-3 (citations to notes of testimony
omitted). Upon rendering its verdict, the trial court on March 4, 2015,
sentenced Appellant to 3 to 23 months’ incarceration. Appellant filed a
timely notice of appeal on April 1, 2015.2
On appeal, Appellant presents three issues for our review.
[1.] When prejudicial evidence is introduced at a
jury trial presided over by a Judge, is it
error for that Judge not to voluntarily
recuse himself in a subsequent non-jury
trial on the charge of “eluding police”
stemming from the prior drug charge
resulting in a guilty verdict at trial?
[2.] When a defendant is serving a short
sentence of incarceration and his trial
counsel’s ineffectiveness is so blatant,
voluminous and cumulative as to deprive
defendant of constitutionally protected due
process, shouldn’t the ineffective assistance
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-A11027-16
of counsel be decided on direct appeal
rather than deferred to PCRA review?
[3.] Was [A]ppellant adequately colloqued [sic]
on his jury trial waiver to determine if it was
an intelligent and knowing waiver inasmuch
as the Trial Judge had recently presided at a
trial at which [A]ppellant was found guilty,
allowing the Trial Judge to hear evidence
related to this case and have knowledge of
his conviction and prior criminal record[?]
Appellant’s Brief at 3.
In his first issue, Appellant argues that the trial court judge “was
obligated to recuse himself and allow another Judge to preside over the non-
jury trial.” Appellant’s Brief at 14. The Commonwealth counters that
Appellant has waived this issue because Appellant did not raise the recusal
issue with the trial court and cannot raise it for the first time on appeal.
Pa.R.A.P. 302(a). Specifically, the Commonwealth states that neither
“Appellant nor [trial] counsel filed any motions seeking removal of the trial
court,” and at “no point did Appellant request [the trial judge] recuse
himself, nor did Appellant state an objection to the trial court as factfinder.”
Commonwealth’s Brief at 10.
Our review of the certified record, including the trial court docket and
notes of testimony from Appellant’s March 4, 2015 trial and sentencing,
confirms the Commonwealth’s assertions. We recently explained as follows.
“A party seeking recusal or disqualification [is
required] to raise the objection at the earliest
possible moment, or that party will suffer the
consequence of being time barred.” In re Lokuta,
11 A.3d 427, 437 (Pa. 2011) (emphasis added)
-4-
J-A11027-16
(quoting Goodheart v. Casey, 565 A.2d 757, 763
(Pa. 1989)). Once a party has waived the issue, “he
cannot be heard to complain following an
unfavorable result.” Commonwealth v. Stanton,
440 A.2d 585, 588 n.6 (Pa. Super. 1982) (citations
omitted).
Lomas v. Kravitz, 130 A.3d 107, 120 (Pa. Super. 2015) (en banc) (parallel
citations omitted).
Based on the foregoing, we agree with the Commonwealth that
Appellant has waived his first issue regarding recusal, such that we decline
to address it further.
In his next issue, Appellant argues that he is entitled to a judicial
determination of trial counsel ineffectiveness on direct appeal where
Appellant “is serving a short sentence of incarceration” and trial counsel’s
ineffectiveness was “so blatant, voluminous and cumulative as to deprive
[Appellant] of constitutionally protected due process.” Appellant’s Brief at
20.
The trial court properly declined to address the merits of this claim,
citing prevailing case law, as follows.
As a general rule, the Pennsylvania Supreme
Court has held that “a petitioner should wait to raise
claims of ineffective assistance of trial counsel until
collateral review. Thus, any ineffectiveness claim
will be waived only after a petitioner has had the
opportunity to raise that claim on collateral review
and has failed to avail himself of that opportunity.”
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002); See Commonwealth v. Liston, 977 A.2d
1089, 1094 (Pa. 2009). The Supreme Court further
held that absent certain narrow circumstances,
-5-
J-A11027-16
“claims of ineffective assistance of counsel are to be
deferred to PCRA review; trial courts should not
entertain claims of ineffectiveness upon post-verdict
motions; such claims should not be reviewed on
direct appeal.” Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa. 2013). An exception to the
general rule exists when any such claims have been
raised and fully developed by hearings at the trial
court level. See Commonwealth v. Bomar, 826
A.2d 831, 853-54 (Pa. 2003).
In the case sub judice, Appellant raises
[numerous] separate claims of ineffective assistance
of trial counsel on direct appeal. The general rule
established by the Pennsylvania Supreme Court
prevents th[e trial c]ourt from addressing Appellant’s
claims at this level. Moreover, these claims do not
fall into the exception to the general rule, as
Appellant’s contentions have not been fully
developed through a hearing or by any other
process. Therefore, we submit that Appellant’s
claims of ineffective assistance of counsel are
premature and better suited for post-conviction
review, in accordance with established law.
Trial Court Opinion, 6/30/15, at 6.
We agree with the trial court that pursuant to the dictates of our
Supreme Court, we are precluded from considering Appellant’s ineffective
assistance of counsel claim on direct appeal. Therefore, we decline to
address Appellant’s second issue.
In his third and final claim, Appellant argues that his jury waiver
colloquy “was not voluntarily, knowingly and intelligently made since the
consequences of the waiver were never fully explained to him.” Appellant’s
Brief at 11. In referencing his first issue concerning recusal, Appellant
maintains the waiver colloquy “was inadequate and failed to sufficiently
-6-
J-A11027-16
advise [A]ppellant that he could be prejudiced by evidence learned by [the
trial judge] as a result of presiding at [a prior jury] trial.” Id.
Again, the Commonwealth asserts waiver and we agree. The
Commonwealth states, “Appellant’s [Pa.R.A.P.] 1925(b) statement contained
two grounds for appeal; however, the voluntariness of his waiver of the right
to a trial by jury was not among them.” Commonwealth’s Brief at 19. Our
review of the certified record confirms that Appellant did not raise his waiver
issue in his Rule 1925(b) statement. See Appellant’s Statement of Errors
Complained of on Appeal, 6/5/15, at 1-4. The absence of this issue is
evidenced further in the trial court opinion, which included and addressed
Appellant’s two issues, “verbatim,” pertaining to recusal and trial counsel
ineffectiveness. Trial Court Opinion, 6/30/15, at 3-4. Accordingly,
Appellant’s third issue is waived. Commonwealth v. Webbs Super Gro
Products, Inc., 2 A.3d 591, 593-594 (Pa. Super. 2010) (any issues not
raised in a statement of matters complained of on appeal will be waived).
In sum, we conclude that Appellant’s three issues on appeal are
without merit because they are either waived or not properly before us for
disposition on direct appeal. We thus affirm the March 4, 2015 judgment of
sentence.
Judgment of sentence affirmed.
-7-
J-A11027-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
-8-
| {
"pile_set_name": "FreeLaw"
} |
264 F.2d 907
Serge A. LOUKOMSKY, Appellant,v.Hans GERLICH, Appellee.
Patent Appeal No. 6404.
United States Court of Customs and Patent Appeals.
March 16, 1959.
Edward S. Irons, Harold J. Birch, and Burns, Doane, Benedict & Irons, Washington, D. C., for appellant.
Abraham J. Nydick, New York City, for appellee.
Before WORLEY, Acting Chief Judge, and RICH and MARTIN, Judges.
RICH, Judge.
1
This appeal is from the decision of the Board of Patent Interferences of the United States Patent Office awarding priority of invention of the subject matter of the single count of Interference No. 87,749 to Gerlich, the junior party.
2
The invention is a coating process defined in the count as follows:
3
"A process for the production of well-adhering coatings on the surface of polyethylene articles which comprises applying thereto a solution containing an interpolymerization product of a major proportion of vinyl chloride and a minor proportion of a vinyl ester and drying the applied coating."
4
The count originated in Gerlich's patent No. 2,689,197 granted September 14, 1954 on an application filed April 16, 1952. Loukomsky is involved in the interference on an application filed February 9, 1955 for reissue of his patent No. 2,628,208 granted February 10, 1953 on an application filed June 18, 1951, and is therefore the senior party.
5
Neither party took testimony, but Gerlich filed a motion to dissolve on the ground that Loukomsky had no right to make the count, which motion was denied by the Primary Examiner. At final hearing the Board of Patent Interferences, disagreeing with the Primary Examiner, held that neither Loukomsky's patent nor his reissue application, which contains a specification identical with that of the patent, disclosed the invention in issue. The board, therefore, awarded priority to Gerlich.
6
The sole issue presented by this appeal is whether the Loukomsky patent discloses the subject matter of the interference count so that he is entitled to make the count for the purpose of contesting priority with Gerlich.
7
There appears to be no dispute as to what is disclosed by the Loukomsky patent, so far as is here pertinent. Both the examiner and the board found, and we agree, that the patent discloses the coating of polyethylene articles with a composition containing a solution of an interpolymerization product of vinyl chloride and a vinyl ester (vinyl acetate). The patent states that the preferred copolymer contains 10% to 15% of vinyl acetate, thus satisfying the requirement of the count that the vinyl chloride shall be a major proportion of the interpolymerization product and the vinyl ester a minor proportion.
8
It was also correctly held by both the examiner and the board that Loukomsky did not contemplate coating with the copolymer solution alone, but considered it essential that the coating composition should contain at least one other ingredient. More specifically, Loukomsky contemplated the use of a coating composition consisting of a mixed solvent medium having higher and lower boiling fractions, with the vinyl copolymer in solution in the medium, and about 20% by weight of another resin dispersed therein, in particulate form.
9
There is no controversy as to what Loukomsky discloses. The issue is whether, on the basis of his disclosure, he can make the count.
10
It is elementary that, in the absence of ambiguity, the counts of an interference are to be given the broadest interpretation which they will reasonably support. Stern v. Schroeder, 36 F.2d 518, 17 CCPA 690; Hartog v. Long, 47 F.2d 365, 18 CCPA 993; Field v. Stow, 49 F.2d 840, 18 CCPA 1437.
11
We agree with the Primary Examiner that the instant count is not ambiguous, but is merely broad and that the statement that the solution contains an interpolymerization product does not exclude the presence of other ingredients, whether in solution, suspension or other form of dispersion. A solution "containing" a specified ingredient does not cease to contain it merely because other ingredients are added. Moreover, as was pointed out by the examiner, the Gerlich patent, in which the count originated, does not describe or give an example of any coating composition consisting solely of a solvent with a vinyl copolymer dissolved therein. At least one other material such as a plasticiser, dye or pigment is always present in the compositions disclosed. Accordingly, even if the count were considered ambiguous and resort had to the Gerlich specification in interpreting it, there is no basis for so construing it as to limit it to a solution of the copolymer alone.
12
While the Board of Patent Interferences held that "Loukomsky's original patent did not disclose the invention of the count and it is not inherent therein," (emphasis ours) the reasons on which that holding was based appear to be directed to what Loukomsky is entitled to claim in a patent, rather than to what he discloses. The board emphasizes the fact that Loukomsky indicates in his specification that the presence of additional materials in the solution is of critical importance and that he does not teach that such materials might be omitted. That fact might be important if the count were limited to the use of a coating composition consisting of a solution of a vinyl copolymer but, as above pointed out, such is not the case.
13
The count is clearly broad enough to embrace the coating compositions of Loukomsky in which other materials are dispersed in the vinyl copolymer solution and so far as the issue of priority is concerned, that is sufficient to entitle him to make the count. In the recent case of Den Beste v. Martin, 252 F.2d 302, 45 CCPA 798, we pointed out, with citation of authorities, that the disclosure in an application of a single species or example falling within the terms of an interference count is sufficient to constitute a constructive reduction to practice of the count. Much of the reasoning of that decision is applicable here.
14
The decisions in In re McCoy, 148 F.2d 347, 32 CCPA 920; and Prutton v. Fuller, 230 F.2d 459, 43 CCPA 831, relied on by the board, are not directly in point. In re McCoy was an ex parte case and the rejection there of a reissue application was not based on failure to disclose the claimed subject matter, but on the ground that the claims were broader than the disclosure and not for the same invention as that intended to be covered by the original patent. As pointed out in the Den Beste opinion, patentability of a count to an applicant is not a matter which is ancillary to the issue of priority. The Prutton case involved counts to specific materials and proportions which were embraced within the broad terms of the disclosure of the applications relied on by Prutton but which were not mentioned as in any way preferable to other specific materials which were singled out as being the invention. In the instant case, on the contrary, the count is broad and the preferred coating compositions clearly disclosed by Loukomsky fall squarely within it.
15
It was stated by the board that Loukomsky, having copied the count from Gerlich's patent, had the burden of showing a clear basis for it in his disclosure. While that statement is correct, Loukomsky's disclosure of the subject matter of the count is, in our opinion, sufficiently clear to sustain the burden. The count reads on the coating of polyethylene with the compositions which Loukomsky discloses. It was not necessary for Loukomsky to show, in addition, that he is entitled to a reissue patent containing a claim corresponding to the count, for that is a question of patentability of the count to him and not ancillary to priority, a question we will not consider in an interference. Den Beste v. Martin, supra, and Mantz v. Jackson, 140 F.2d 161, 31 CCPA 824, 832. The error of the board resides in its having predicated its decision on the priority issue on whether Loukomsky was entitled to claim the process of the count. That question may very well have to be decided after the interference is over, but at this juncture the sole issue is whether Loukomsky is entitled to an award of priority which would deny the count to Gerlich. There is no dispute that Loukomsky has established the earlier date. Since we hold he is entitled to make the count for the purposes of this contest, he is entitled to the award of priority, which is to say, of course, that Gerlich is not entitled to a claim which reads on the prior disclosure of Loukomsky, whether or not Loukomsky is entitled to the same claim in a patent.
16
The decision of the Board of Patent Interferences is reversed.
17
Reversed.
| {
"pile_set_name": "FreeLaw"
} |
56 Cal.Rptr.3d 27 (2007)
148 Cal.App.4th 546
The PEOPLE, Plaintiff and Respondent,
v.
Thomas MYERS, Defendant and Appellant. In re Thomas Myers on Habeas Corpus.
Nos. G036169, G037074.
Court of Appeal of California, Fourth District, Division Three.
February 15, 2007.
As Modified March 13, 2007.
*28 David L. Bernstein, under appointment by the Court of Appeal, Studio City, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury found defendant Thomas Myers guilty of resisting an officer and committing a battery on an officer. He raises three meritless contentions.
First, defendant complains his trial counsel provided ineffective assistance by failing to object to evidence of his violent character. We agree that evidence of the officer's purportedly violent conduct before defendant resisted arrest did not open the door for the prosecution to offer evidence of defendant's violent character. But the admission of that evidence was harmless. Counsel's failure to object did not prejudice defendant.
Second, defendant claims the court wrongly found citizen complaints against *29 the officer were unresponsive to his Pitchess[1] motion. We find no abuse of discretion.
Finally, in his petition for writ of habeas corpus, defendant contends his counsel provided ineffective assistance by advising him to testify about the details of a prior conviction. He contends his testimony allowed the court to find the prior conviction constituted a serious felony strike. But the court could have made that determination from the record of conviction, without defendant's testimony. Thus, this ineffective assistance claim fails as well. Accordingly, we affirm the judgment and deny the petition for writ of habeas corpus.
FACTS
A California Highway Patrol officer saw defendant walking along a freeway on-ramp. The officer approached defendant and asked what he was doing. Defendant stated he was hitchhiking. The officer began a pat-down search of defendant. Defendant followed the officer's directions to turn around, separate his feet, and interlace his fingers behind his head.
As the officer began to check defendant's waistband, defendant separated his hands and turned toward the officer. The officer radioed for help, tried to control defendant, and pushed him toward the sound wall. Defendant ran past the officer. The officer tried to grab defendant, but he broke free. The officer tackled defendant and laid on top of him. Defendant tried to get up and grabbed the officer's holster, but the officer finally handcuffed defendant. The officer broke his finger during the fight.
Another officer arrived at the scene and searched defendant. A glass pipe with white residue on it was found in defendant's pants pocket. Defendant waived his Miranda[2] rights and stated he fought with the first officer to keep him from discovering the pipe, which he used to smoke methamphetamine.
The People filed an information charging defendant with one count each of resisting an officer resulting in serious bodily injury (Pen.Code, § 148.10, subd. (a)),[3] committing a battery on an officer (§ 243, subd. (c)(2)), and possession of drug paraphernalia (Health & Saf.Code, § 11364).[4] The People also alleged defendant had suffered a prior serious felony conviction. (§§ 667. subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b) & (c)(1).)
Before trial defendant filed a Pitchess motion for discovery of material in the officer's personnel file. Defendant sought any complaints against the officer of excessive force, complaints of false statements by the officer, and similar material Defendant supported his motion with a sealed declaration. The court agreed to review in camera any arguably responsive documents in the officer's personnel file. The prosecution produced the California Highway Patrol's custodian of records and all citizen complaints against the officer. The court described the complaints on the record of the in camera proceeding. It concluded none were responsive to defendant's request. It ordered the supporting *30 declaration and the reporter's transcript to be sealed.
Also before trial, the prosecution filed a motion in limine to admit evidence of defendant's violent character. The prosecution contended the evidence would be admissible if the defendant first testified the officer acted violently during the arrest. (See Evid.Code, § 1103, subds. (a) & (b).) Defense counsel objected the evidence of defendant's violent character would be unduly prejudicial. (Evid.Code, § 352.) The court noted the defense did not dispute the evidence's admissibility pursuant to Evidence Code section 1103. It then overruled the defense's undue prejudice objection.
At trial, defendant took the stand. He testified the officer was overly aggressive towards him, slamming him against the freeway wall and kicking his feet apart. Defendant stated he "freaked out" and "tried to get away." He denied touching the officer's holster, stating it would have been impossible for him to do so while the officer was laying on top of him. He claimed someone had given him the glass pipe to smoke tobacco.
Defendant also testified on direct examination about his prior violent conduct. He admitted having a felony conviction "which involve[d] assault with a gun" in Arizona. He had been a security guard at a trailer park, and fired two warning shots at suspected drug dealers while off-duty. He pled guilty to "aggravated assault." He also admitted having twice been arrested on misdemeanor assault charges. In one case, he was anested in Arizona "for domestic violence" for pushing his girlfriend's sister to break up a fight between his girlfriend and her sister. In the other instance, he was arrested in Washington after he pushed a different girlfriend during an argument. During cross-examination, defendant admitted pleading guilty to assault charges arising from both instances. The jury found defendant guilty on all counts after about 90 minutes of deliberation.
The court held a bifurcated trial on the prior serious felony conviction allegation. The prosecution introduced a certified record of conviction and a certified record of commitment on defendant's Arizona conviction, which was for aggravated assault with a deadly weapon or dangerous instrument. Defendant testified again, briefly recounting the warning shots and his guilty plea. The court queried whether the Arizona records showed defendant had personally used a firearm during the commission of the aggravated assault. It then found the prior conviction allegation true, based on "the documents and from what you have told me today about the facts of the prior."
The court sentenced defendant to a total term of six years in prison. It imposed a midterm three-year sentence on the resisting an officer count, which it doubled due to defendant's prior serious felony conviction. (§ 667, subd. (e)(1).) It stayed sentencing on the battery count, and suspended the sentence on the possession of drug paraphernalia count. Defendant appealed and filed a petition for writ of habeas corpus. We consolidated the two matters.
DISCUSSION
Failing to Object to the Evidence of Defendant's Violent Character on Section 1101 and Section 1103 Grounds was not Prejudicial
Although counsel objected to the admission of evidence of defendant's violent character on the ground of undue prejudice, defendant contends counsel provided ineffective assistance by failing also to object pursuant to Evidence Code sections 1101 (defendant's propensity for violence *31 generally inadmissible) and 1103 (prosecution may not offer evidence of defendant's propensity for violence unless in rebuttal to defendant's evidence of victim's propensity for violence). He maintains the defense offered only evidence of the victim's violent conduct during the arrest, not evidence of the victim's violent character. To prove his ineffective assistance claim, defendant must show (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Strickland).)
Usually, defendant's contentions would not make it out of the gate. "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight." (People v. Kelly (1992) 1 Cal.4th 495, 520, 3 Cal.Rptr.2d 677, 822 P.2d 385 (Kelly).) "A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (Ibid.) But we will review counsel's failure to object when "`"counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."'" (Ibid.) Defendant's habeas petition includes a declaration from his appellate counsel, stating defendant's trial counsel told him she could recall no tactical purpose for failing to object on the ground the predicate of Evidence Code section 1103 had not been met. This is hearsay, but the Attorney General does not object. And the issue arose in a motion in limine, not in front of the jury in the heat of trial, making it unlikely defense counsel had a tactical reason for not objecting on all arguable grounds. Thus, we will review the purportedly deficient objection.
As defendant correctly notes, character evidence is generally inadmissible to prove a person acted in conformity with it on a given occasion. (Evid.Code, § 1101, subd. (a).) Evidence Code section 1103 sets forth exceptions to this general rule. One exception allows a criminal defendant to offer evidence of the victim's character to show the victim acted in conformity with it. (Evid.Code, § 1103, subd. (a)(1).) If the defendant offers evidence showing the victim has a violent character, then the prosecution may offer evidence of the defendant's violent character to show the defendant acted in conformity with it. (Evid. Code, § 1103, subd. (b).)
Defendant contends evidence of his violent character was not admissible pursuant to Evidence Code section 1103, subdivision (b), because his testimony about the officer's aggressive conduct at the time of the incident did not constitute character evidence for the purposes of Evidence Code section 1103. The Attorney General contends defendant's testimony satisfied Evidence Code section 1103, subdivision (b), because it tended to show the victim's "character for violent behavior on the day of [defendant's] arrest."
Defendant has the better of the argument. Evidence Code section 1103 contemplates that character evidence comprises something other than evidence of conduct at the time in question, because character evidence is used to show the person acted "in conformity with" his or her character. (Evid.Code, § 1103, subd. (b).) Wigmore, on whose treatise Evidence Code section 1103 is based (People v. Blanco (1992) 10 Cal.App.4th 1167, 1173-1174, 13 Cal.Rptr.2d 176), notes the relevance of character evidence is premised on a continuity of character over time: "`Character at an earlier or later time than that of the deed in question is relevant only on the assumption that it was substantially unchanged in the meantime, i.e. the offer is really of character at one period to prove character at another....'" *32 (People v. Shoemaker (1982) 135 Cal.App.3d 442, 448, 185 Cal.Rptr. 370 [quoting Wigmore, second italics added].) If evidence of a victim's conduct at the time of the charged offense constitutes character evidence under Evidence Code section 1103, then every criminal defendant claiming self-defense would open the door for evidence of his own violent character. Evidence Code section 1103 cannot be read so broadly.
But although an Evidence Code section 1103 objection would have been meritorious, counsel's failure to object caused no prejudice. (Strickland, supra, 466 U.S. at pp. 687, 693-694, 104 S.Ct. 2052 [prejudice requires a "reasonable probability" that competent performance would have led to a different result].) This was not a close case. The jury deliberated for less than two hours before convicting defendant. It credited the officer's testimony. Defendant destroyed his own credibility with his far fetched claim that the white-residueencrusted glass pipe was for smoking tobacco. Any reasonable juror would have concluded defendant fought with the officer to hide his meth pipe. Objecting to the evidence of defendant's violent character would not reasonably have resulted in a more favorable determination to defendant. (Ibid.)
The Court Did Not Abuse Its Discretion by Denying Defendant's Pitchess Motion
Defendant asks us to determine whether the court abused its discretion by concluding the citizen complaints in the officer's personnel file were not responsive to his Pitchess motion. We have reviewed all material in the record regarding defendant's Pitchess motion, including the moving papers, defense counsel's sealed declaration, and the sealed transcript of the in camera hearing. The hearing transcript contains an adequate record of the court's review and analysis of the documents provided to it. It reveals no abuse of discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228, 114 Cal.Rptr.2d 482, 36 P.3d 21.)
Counsel Did Not Render Ineffective Assistance by Advising Defendant to Testify About His Prior Felony Conviction
In his habeas petition, defendant contends defense counsel's advice to testify about the details of his prior conviction led to the only evidence showing the conviction constituted a serious felony strike.[5] He notes the certified records of conviction and commitment showed he had been convicted in Arizona of aggravated assault with a deadly weapon or dangerous instrument, i.e., a handgun. He asserts personal use of a firearm is required for assault with a deadly weapon to constitute a serious felony strike, relying on section 1192.7, subdivision (c)(8) (serious felony includes "any felony in which the defendant personally uses a firearm") and People v. Rodriguez (1998) 17 Cal.4th 253, 261, 70 Cal. Rptr.2d 334, 949 P.2d 31 (conviction for assault with a deadly weapon may result from aiding and abetting, which would not satisfy personal use requirement).
Defendant's claim was tenable before the turn of the century, but not now. The voters adopted Proposition 21 in the March 7, 2000, Primary Election. (People v. Luna (2003) 113 Cal.App.4th 395, 398, 6 Cal.Rptr.3d 539.) The proposition "delet[ed] *33 for serious felony purposes the personal use requirement for assault with a deadly weapon." (Ibid.) The definition of "serious felony" now includes any "assault with a deadly weapon [or] firearm ... in violation of Section 245," without reference to personal use. (§ 1192.7, subd. (c)(31).) The Arizona records show defendant pleaded guilty to assaulting his victim "with a deadly weapon or dangerous instrument, to wit: a handgun." Defendant's prior conviction thus satisfies the elements of section 245, subdivision (a)(2)assault with a firearm. (See People v. Myers (1993) 5 Cal.4th 1193,1195, 22 Cal.Rptr.2d 911, 858 P.2d 301 [court may consider the entire record on the prior conviction to determine whether it satisfies the elements of a serious felony].) Defendant does not contend otherwise.
Thus, the court could have determined the prior conviction constituted a serious felony strike without defendant's testimony. Defense counsel's alleged advice was not prejudicial. (See Strickland, supra, 466 U.S. at pp. 687, 693-694, 104 S.Ct. 2052.)
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
O'LEARY, Acting P.J., and MOORE, J., concur.
NOTES
[1] Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess); see also Evidence Code section 1043.
[2] Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ).
[3] All further statutory references are to the Penal Code unless otherwise stated.
[4] The information initially charged defendant with an additional count for resisting an officer (§ 148. subd. (a)(1)). The prosecution later dismissed this count.
[5] Defense counsel denies advising defendant to testify, according to the declaration of defendant's appellate counsel submitted with the habeas petition. The Attorney General does not object to this hearsay statement. Rather than issue an OSC setting an evidentiary hearing, we will resolve the factual dispute in defendant's favor and determine whether the advice constitutes ineffective assistance.
| {
"pile_set_name": "FreeLaw"
} |
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Kenneth J. Falk
Attorney General of Indiana Kelly R. Eskew
Gavin M. Rose
Thomas M. Fisher ACLU of Indiana
Solicitor General of Indiana Indianapolis, Indiana
Heather Hagan McVeigh
Jared Jedick
Betsy M. Isenberg
Deputy Attorneys General
Indianapolis, Indiana
___________________________________________________________________________________
Nov 06 2015, 9:27 am
In the
Indiana Supreme Court
_________________________________
No. 49S00-1407-PL-494
COMMISSIONER OF THE INDIANA BUREAU OF MOTOR VEHICLES
IN HIS OFFICIAL CAPACITY, Appellant/Defendant below,
v.
RODNEY G. VAWTER, ET AL., Appellees/Plaintiffs below.
_________________________________
Appeal from the Marion Superior Court, No. 49D14-1305-PL-06159
The Honorable James B. Osborn, Judge
_________________________________
On Direct Appeal
_________________________________
November 6, 2015
Dickson, Justice.
In accord with a recent decision of the United States Supreme Court, we uphold the
actions of the Indiana Bureau of Motor Vehicles in the processing of applications for
personalized license plates.
This is a direct appeal from a trial court summary judgment declaring unconstitutional the
statute that authorizes the Indiana Bureau of Motor Vehicles ("BMV") to refuse to issue
personalized license plates ("PLPs"). The trial court found that the statute and its related policies
were vague, overbroad, and lacking in content-neutrality, violating the First and Fourteenth
Amendments to the United States Constitution. The trial court also held that the Bureau violates
due process under the Fourteenth Amendment by providing insufficient reasons for a denial or
revocation of a PLP. The BMV appeals, arguing that because personalized license plates are
government speech, the statute and policies are constitutional. For the reasons expressed below,
we agree and reverse the trial court's summary judgment for the plaintiffs on these issues and
direct the trial court to enter summary judgment for the BMV on these claims.
Indiana allows a registered owner or lessee of certain types of vehicles, including
passenger motor vehicles, to apply to the BMV for a PLP. Ind. Code § 9-18-15-1.1 PLPs display
numbers and/or letters in an alphanumeric combination which identifies the vehicle and is
"requested by the owner or the lessee of the vehicle and approved by the bureau." Ind. Code § 9-
13-2-125; see also Ind. Code § 9-18-15-4(a). Indiana's PLPs have become quite popular:
between January 1, 2011 and July 19, 2013, the BMV received 71,452 new applications for these
plates.
After receiving a PLP application, the BMV is permitted by statute to reject any PLP
alphanumeric combination that "(1) carries a connotation offensive to good taste and decency;
(2) would be misleading; or (3) the bureau otherwise considers improper for issuance." Ind.
Code § 9-18-15-4(b). The BMV also created both an administrative rule and a policy guide for
making rejection and revocation decisions. The administrative rule allowed the BMV to "revoke
a previously issued PLP if the bureau: (1) receives a substantial number of complaints regarding
the previously issued PLP; and (2) determines the previously issued PLP contains references or
expressions that Indiana law prohibits." 140 IAC 2-5-4(a). The policy guide provided that a
1
Other vehicles eligible for PLPs include motorcycles, recreational vehicles, or vehicles registered as a
truck with a declared gross weight of not more than eleven thousand pounds. Ind. Code § 9-18-15-1(a).
2
BMV License Plate/PLP Committee would review PLP applications and prescribed nine
categories of reasons why PLP applications "may be prohibited." Appellant's App'x at 87. The
Committee, however, had discretion to reject PLPs outside those categories and to accept PLPs
within them. As the Committee made decisions, the BMV stored rejected applications–
approximately 6,000 by 2013–on a list to compare with future applications. For each rejection,
the BMV mailed the applicant a form letter indicating that their application was denied "based on
the inappropriate content or invalid format." Id. at 14.
The plaintiffs, as a certified class,2 challenged the constitutionality of the PLP program.3
They argue that "the decisionmaking process used in denying or revoking PLPs," violates the
First Amendment and the Due Process Clause of the Fourteenth Amendment. Appellee's Br. at
1. The BMV argues in response that because PLPs are government speech, the challenged
standards do not violate the Constitution. The trial court granted summary judgment in favor of
the class, concluding that "Indiana Code § 9-18-5-4(b), 140 IAC 2-5-4, and the Policy Statement
violate the First Amendment and due process as vague, overbroad, and lacking in content-
neutrality." Appellant's App'x at 29. The trial court also held that "[t]he BMV denies procedural
due process to those whose PLPs are denied or revoked" because "there are no specific factual
bases given for the determination." Id. at 35, 37. The BMV appeals these decisions.4
2
The class, Class A, includes "[a]ll applicants or recipients of personalized license plates whose
applications will be denied or were denied after May 7, 2011, or whose existing personalized license
plates will be revoked or were revoked after May 7, 2011 . . . ." Appellant's App'x at 22. The class
representative, Rodney Vawter, is a corporal in the Greenfield, Indiana Police Department. For three
years, Corporal Vawter displayed a Fraternal Order of Police PLP with the alphanumeric combination
"0INK." But when the BMV in 2013 rejected an Indiana Association of Chiefs of Police PLP reading
"O1NK," the BMV's computer system flagged Corporal Vawter's plate as similar to a rejected PLP. The
BMV then revoked Mr. Vawter's PLP.
3
A second class, Class B, challenged the BMV's decision to suspend the PLP program. The class
included “[a]ll persons who are or will be precluded from applying for and/or obtaining a personalized
license plate because the Commissioner of the Bureau of Motor Vehicles has suspended the personalized
license plate program.” Id. Jay Voigt represented Class B.
4
Following the commencement of this litigation, the BMV Commissioner suspended the PLP program.
The plaintiffs then challenged that decision as well, and the trial court held that "[t]he unilateral
suspension of the PLP program by the [BMV] Commissioner is outside the scope of his authority and was
invalid." Id. at 37. The trial court also held that the BMV's policy statement "is a rule under Indiana law
and is void inasmuch as it has not been promulgated." Id. at 26. These rulings are not challenged in this
appeal.
3
This Court has mandatory and exclusive jurisdiction over this appeal because the trial
court declared a state statute unconstitutional. Ind. Appellate Rule 4(A)(1)(b). We review the
trial court's grant of summary judgment and any questions of federal constitutional law de novo.
Bleeke v. Lemmon, 6 N.E.3d 907, 917 (Ind. 2014); Choose Life Ill., Inc. v. White, 547 F.3d 853,
858 (7th Cir. 2008). The material facts are undisputed.
The BMV argues on appeal that its PLP decision-making process is constitutional
because "personalized plates are government speech, and even viewpoint discrimination is
permissible." Appellant's Br. at 12. The BMV further contends that its "procedures for denying
an application or revoking . . . plates satisfy procedural due process" because "[m]otorists have
no protected interest in possessing a personalized plate that displays any particular message."
Appellant's Br. at 15, 41. The BMV especially relies on the United States Supreme Court's
recent decision in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 192
L.Ed.2d 274 (2015), arguing that under Walker's reasoning, personalized license plates must be
government speech.5
1. The Walker Test for Government Speech
In Walker, the Supreme Court identified a three-factor standard for identifying
government speech. 135 S.Ct. at 2247, 192 L.Ed.2d at 282-83. First, whether the government
has historically used the medium to speak to the public; second, whether the message is closely
identified in the public mind with the state; and third, the degree of control the state maintains
over the messages conveyed. Id. Analyzing these factors together, we find that Indiana's PLPs
are government speech.
a. Indiana's Historical Use of License Plates
5
While Walker declares that it is "concerned only with . . . [Texas'] specialty license plates, not with [its]
personalization program," we find its test for government speech is applicable and instructive here.
Walker, 135 S.Ct. at 2244, 192 L.Ed.2d at 279. Additionally, Walker is especially informative to this case
because its analysis frequently considers license plates themselves as well as the designs on them. Id. at
2248-50, 283-85.
4
License plates have long been used for government purposes. First and foremost, the
alphanumeric combinations provide identifiers for public, law enforcement, and administrative
purposes. Through these identifiers, the government enables the public to provide a unique
identifier to others, differentiate between vehicles in a parking garage or lot, and identify their
vehicles if they are borrowed or stolen. In addition to license plates providing unique identifiers,
they "long have communicated messages from the States." Id. at 2248, 283. This is true of
plates around the country and in Indiana. All fifty states have included graphics on their plates,
including Pennsylvania's keystone in 1910, an Idaho potato in 1928, Florida grapefruits in 1935,
a Georgia peach in 1940, a Colorado skier in 1958, and a Maine lobster in 1987. See generally
James K. Fox, LICENSE PLATES OF THE UNITED STATES: A PICTORIAL HISTORY 1903-TO THE
PRESENT (Interstate Directory Publ’g Co., Inc., 1994).6 Written messages on license plates have
been just as popular, beginning with “IDAHO POTATOES" in 1928. Id.; see Walker, 135 S.Ct.
at 2248, 192 L.Ed.2d at 283-84. Many other states, such as Alabama, California, Maine,
Missouri, and Washington, have included their state slogan. Tourist advertising is popular in
both words and graphics as license plates have featured New Hampshire's Old Man in the
Mountain, South Dakota's Mount Rushmore, Kentucky's Churchill Downs, and Minnesota's
10,000 lakes. See generally Fox, LICENSE PLATES OF THE UNITED STATES.
Like other states, Indiana has frequently communicated through its license plates.
Indiana’s slogans have included, among others, "DRIVE SAFELY" in 1956-1958, "LINCOLN'S
YEAR" in 1959, "SAFETY PAYS" in 1960-1962, "150TH YEAR" in 1966, "WANDER" in 1985,
"HOOSIER HOSPITALITY" in 1991, and currently "BICENENNIAL 1816-2016." Id. at 39,
INDIANA ANTIQUE LICENSE PLATES 2000-PRESENT, http://www.in.gov/bmv/2834.htm. Indiana
has used graphics as well, such as a minuteman in 1976, an Indy 500 car and checkered flag in
6
Because the history of license plates is long and varied, "the appellate brief format" is "ill-suited to
provide the background information essential to a thorough and fair consideration of [this] case."
Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 808 n.1 (Ind. 2012). So, "in order to facilitate
understanding of the facts and application of relevant legal principles, this opinion includes information
[on the history of license plates] from identified sources outside the trial record of this case." A.B. v.
State, 885 N.E.2d 1223, 1224 (Ind. 2008) (providing background information about MySpace.com when
the charged crime occurred on that website). We also note that because the trial court made its rulings
over a year before the Supreme Court decided Walker, the parties and trial court would not have focused
on the historical aspect of Indiana's PLPs.
5
1979, and a sunset over a farm from 1993-1997. Fox, LICENSE PLATES OF THE UNITED STATES
39; INDIANA ANTIQUE LICENSE PLATES 1990-1999, http://www.in.gov/bmv/2833.htm. Far more
recently, Indiana began offering specialty plates honoring veterans, supporting colleges and
universities, and recognizing dozens of other organizations. INDIANA'S STANDARD AND
SPECIALTY LICENSE PLATES, http://www.in.gov/bmv/2352.htm; INDIANA'S ORGANIZATIONAL
LICENSE PLATES, http://www.in.gov/bmv/2404.htm. Not only has Indiana spoken through its
license plates since 1956, it continues to do so today. INDIANA ANTIQUE LICENSE PLATES 2000-
PRESENT, http://www.in.gov/bmv/2834.htm.
The plaintiffs argue that because PLP alphanumeric combinations are "individually-
crafted" and "unique," Indiana's historic practice does not justify the conclusion that they are
from the state. Appellee's Supp. Br. at 3. While the alphanumeric combinations on PLPs are
individually chosen instead of created by the state, this difference is secondary and does not
change the principal function of state-issued license plates as a mode of unique vehicle
identification. And the historical context remains helpful to our analysis. Originally, Indiana
license plates served only as a unique identifier. But over time, Indiana included first words,
then graphics, then eventually specialty designs and personalized plates. This history shows that
Indiana often communicates through its license plates and has expanded how it does so.
Furthermore, the plaintiffs' distinguishing features are fully compatible with government speech.
"The fact that private parties take part in the design and propagation of a message does not
extinguish the governmental nature of the message . . . ." Walker, 135 S.Ct. at 2251, 192
L.Ed.2d at 287. And, PLPs are no more unique than public park monuments, which "typically
represent government speech." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470, 129
S.Ct. 1125, 1132, 172 L.Ed.2d 853, 863 (2009).
b. Identification of PLP Alphanumeric Combinations in the Public Mind with the State
PLP alphanumeric combinations "are often closely identified in the public mind with the
[State]." Walker, 135 S.Ct. at 2248, 192 L.Ed.2d at 284 (quoting Summum, 555 U.S. at 472, 129
S.Ct. at 1133, 172 L.Ed.2d at 864) (alteration in original). PLPs belong to the BMV and display
"Indiana" prominently at the top of every plate, indicating that Indiana owns and issues them.
6
See Ind. Code § 9-18-2-31. Indiana requires motor vehicle owners to display license plates and
to obtain them from the BMV, the issuing state agency. Ind. Code §§ 9-18-2-8, -26, -30. Those
who apply for an Indiana PLP discover that the BMV must approve every alphanumeric
combination before it can be displayed. Ind. Code § 9-13-2-125. Also, PLPs "may not duplicate
a regularly issued plate" and "[o]nly one (1) personalized plate . . . may be issued by the bureau
with the same configuration of numbers and letters." Ind. Code § 9-18-15-2. Under these facts,
Indiana "license plates are, essentially, government IDs"7 and license plate observers "routinely–
and reasonably–interpret them as conveying some message on the [issuer's] behalf." Walker,
135 S.Ct. at 2249, 192 L.Ed.2d at 284 (quoting Summum, 555 U.S. at 471, 129 S.Ct. at 1133,
172 L.Ed.2d at 863) (alteration in original).
Even vehicle owners requesting and displaying PLPs recognize the close association of
the message with the state. In about two and a half years the BMV received 71,452 new
applications for PLPs. Each applicant, along with vehicle owners displaying previously
approved PLPs, could have used bumper stickers, window decals, or similar private methods to
display personal messages far more prominently and cost effectively.8 Instead, many have
preferred to have the state approve and authorize individualized alphanumeric combinations for
display on government property for the purpose of vehicle identification.
The plaintiffs argue that this second factor supports PLPs as government speech "only if
it can be believed that a person who observes, for example, a personalized license plate of
'BIGGSXY' or 'FOXYLDY' or 'BLKJEW'9 will conclude that it is the State of Indiana that is
making this assertion." Appellee's Supp. Br. at 4. The Walker dissent so argues, 135 S.Ct. at
7
Notably, Walker identified license plates as essentially government IDs even though it involved
specialty designs instead of the combination of letters and numbers that actually identify the vehicle. 135
S.Ct. at 2249, 192 L.Ed.2d at 284. Therefore, Indiana's PLPs are more clearly government IDs than are
the specialty plates in Walker.
8
Indiana's license plates are six inches wide and twelve inches long. Ind. Code § 9-18-2-32. The BMV
charges $45 for each PLP, in addition to standard registration fees. PERSONALIZED PLATES,
http://www.in.gov/bmv/2824.htm.
9
Each of these plates was issued under Indiana's PLP program.
7
2255, 192 L.Ed.2d at 291 (Alito, J., dissenting), but the majority instead held that all of Texas'
specialty plates are government speech. Id. at 2253. PLPs do not cease to be government speech
simply because some observers may fail to recognize that PLP alphanumeric combinations are
government issued and approved speech in every instance. Instead, PLPs "are often closely
identified in the public mind with the [State]." Id. at 2248, 284 (quoting Summum, 555 U.S. at
472, 129 S.Ct. at 1133, 172 L.Ed.2d at 864) (emphasis added) (alteration in original). As in
Walker, a few exceptions do not undermine the conclusion that PLPs are government speech.10
Rather, a PLP "is a government article serving the governmental purposes of vehicle registration
and identification." Id. at 2248, 284. The alphanumeric combination, regardless of its content, is
government speech specifically identifying a single vehicle.11
c. Indiana's Control over PLP Alphanumeric Combinations
Applying the third factor, Indiana "maintains direct control" over the alphanumeric
combinations on its PLPs. Id. at 2249, 284. In fact, Indiana PLPs by definition must be
approved by the BMV. Ind. Code § 9-13-2-125. The BMV may reject any PLP that "(1) carries
a connotation offensive to good taste and decency; (2) would be misleading; or (3) the bureau
otherwise considers improper for issuance." Ind. Code § 9-18-15-4(b) (emphasis added). The
BMV not only holds broad authority in reviewing PLPs, but exercises it–rejecting thousands of
combinations for reasons including "misleading," "poor taste," "profanity," and "violence." See
Appellant's App'x at 124-49. Thus, the BMV "has effectively controlled the messages
[conveyed] by exercising final approval authority over their selection." Walker, 135 S.Ct. at
2249, 192 L.Ed.2d at 285 (quoting Summum, 555 U.S. at 473, 129 S.Ct. at 1128, 172 L.Ed.2d at
858) (internal quotations omitted) (alteration in original).
The plaintiffs argue that the BMV "does not exert 'effective control'" over PLPs, because,
10
Among its specialty plate options, Texas offered designs advertising Remax, Dr. Pepper, and Mighty
Fine Burgers. Walker, 135 S.Ct. at 2257, 192 L.Ed.2d at 294 (Alito, J., dissenting).
11
Even the four Walker dissenters apparently agree, saying that "the [license plate's] numbers and/or
letters identifying the vehicle" are "unquestionably" government speech. Walker, 135 S.Ct. at 2255-56,
192 L.Ed.2d at 292.
8
"aside from the statute challenged in this case and the eight digit limitation imposed by the
license plate size, the BMV imposes no limits on the speech that individuals can devise to place
on their unique personalized license plate."12 Appellee's Supp. Br. at 2-3. But under Walker, the
BMV's final approval authority establishes effective control regardless of any set list of limits.
135 S.Ct. at 2249, 192 L.Ed.2d at 284-85. The final BMV approval authority is established both
in the statute defining PLPs and in the statute challenged here. Ind. Code §§ 9-13-2-125, 9-18-
15-4. The BMV applied its authority by creating an internal policy guide, establishing a PLP
Committee, and allowing that Committee to approve or reject plates for any reason–whether
listed in the policy guide or not. Because the BMV has final approval authority by statute, and
exercises effective control, we reject the plaintiffs' argument.
The three Walker factors apply with equal or even greater force to Indiana PLPs as they
do to Texas' specialty plates, demonstrating that Indiana's PLPs are government speech.
2. Forum Analysis
The plaintiffs argue that PLPs are "private speech in a forum provided by the State."
Appellee's Supp. Br. at 4. While the three Walker factors alone demonstrate that PLPs are
government speech, we follow Walker's example in addressing this argument even though it is
not dispositive. As in Walker, "forum analysis is misplaced here," because Indiana's PLPs do not
fit into any type of government forum for private speech. Walker, 135 S.Ct. at 2250, 192
L.Ed.2d at 286.
a. Traditional Public Forum
First, "PLPs are not a 'traditional public forum,' such as a street or a park," which the
government has long held in trust for public assembly, communication, and discussion. Id.
12
This argument fails to grasp the extent of the BMV's authority. In addition to the statutory limits
challenged by the plaintiffs, PLP alphanumeric combinations are also limited because the BMV may not
issue PLPs duplicating another plate and must approve every PLP before issuance. Ind. Code §§ 9-13-2-
125, 9-18-15-2.
9
(quoting Perry Educ. Ass’n v. Perry Local Educators' Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948,
954-55, 74 L.Ed.2d 794, 804 (1983)). Traditional public forums do not extend beyond their
historic confines, thus excluding PLPs from this status. Id. (quoting Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875, 887 (1998)).
b. Designated and Limited Public Forums
Second, PLPs are not a "designated public forum" or a "limited public forum."
Designated public forums exist "where government property that has not traditionally been
regarded as a public forum is intentionally opened up for that purpose . . . ." Id. (quoting
Summum, 555 U.S. at 469, 129 S.Ct. at 1132, 172 L.Ed.2d at 862) (internal quotation omitted).
Limited public forums exist "where a government has reserv[ed a forum] for certain groups or
for the discussion of certain topics." Id. (quoting Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 2516-17, 132 L.Ed.2d 700, 715 (1995)) (internal
quotation omitted) (alteration in original). The government creates these forums "only by
intentionally opening a nontraditional forum for public discourse." Id. (quoting Cornelius v.
NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d
567, 580 (1985)) (internal quotation omitted). In order to determine whether PLPs have been
intentionally opened for public discourse, we look to "the policy and practice of the government
and to the nature of the property and its compatibility with expressive activity." Id. (quoting
Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449, 87 L.Ed.2d at 580) (internal quotation omitted).
The BMV's policy and practice show that PLPs are not a public forum. Indiana license
plates "have traditionally been used for government speech, are primarily used as a form of
government ID, and bear the State's name." Walker, 135 S.Ct. at 2251, 192 L.Ed.2d at 287. The
BMV "exercises final authority over" each PLP alphanumeric combination, "militat[ing] against
a determination that [it] has created a public forum." Id. at 2251, 286. The BMV has never
opened PLPs "for indiscriminate use by the general public" or "granted [PLPs] as a matter of
course" to every applicant. Perry Educ. Ass'n, 460 U.S. at 47, 103 S.Ct. at 956, 74 L.Ed.2d at
806. Instead, it requires that every alphanumeric combination be submitted, reviewed, and
approved before it can be displayed.
10
Furthermore, the nature of Indiana's PLPs is not compatible with expressive activity.
Because PLPs are small and contain a maximum of eight characters, they cannot realistically
promote meaningful discourse, communication, and debate. See Ind. Code § 9-18-2-32. The
primary purpose of PLPs is to register vehicles, "not to 'encourage a diversity of views from
private speakers . . . .'" United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 206, 123 S.Ct.
2297, 2305, 156 L.Ed.2d. 221, 233 (2003) (quoting Rosenberger, 515 U.S. at 834, 115 S.Ct. at
2519, 132 L.Ed.2d at 718). And, as explained by the United States Supreme Court, "where the
principal function of the property would be disrupted by expressive activity, [we are] particularly
reluctant to hold that the government intended to designate a public forum." Cornelius, 473 U.S.
at 804, 105 S.Ct. at 3450, 87 L.Ed.2d at 581. Under this precedent, the primary purpose of PLPs
reinforces our conclusion that PLPs are neither a limited nor a designated public forum.
c. Nonpublic Forum
Third, PLPs are not a nonpublic forum, which exists "[w]here the government is acting as
a proprietor, managing its internal operations." Walker, 135 S.Ct. at 2251, 192 L.Ed.2d at 287
(quoting Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701,
2705, 120 L.Ed.2d 541, 549 (1992)) (alteration in original). When the government "simply
manag[es] government property," and that government property is used for private speech,
nonpublic forum analysis applies. Id. In fact, in some nonpublic forums, government speech
may exist alongside private speech. This happened in Perry Educational Association, where a
nonpublic forum–an interschool mail system–transmitted "official messages," "personal
messages," and "messages from various private organizations." 460 U.S. at 39, 103 S.Ct. at 952,
74 L.Ed.2d at 801. But when government property is used for government speech, and that
government speech necessarily crowds out all private speech on the same property, nonpublic
forum analysis is misplaced. Such is the case here.
As established above, license plates, even those with personalized alphanumeric
combinations, are government speech. Private speech on license plates is prohibited and
impractical even outside the alphanumeric combinations at issue in this case. In addition to the
11
eight-character PLP limitation, Indiana requires motorists to keep their plates "free from foreign
materials and in a condition to be clearly legible" and "not obstructed or obscured by . . .
accessories, or other opaque objects." Ind. Code § 9-18-2-26(b)(4)-(5). Moreover, the small area
of a license plate leaves little empty space where someone could feasibly display a private
message. See Ind. Code § 9-18-2-32(a)(1). Under these facts, we find that Indiana's PLPs do not
accommodate private speech either in their alphanumeric combinations or anywhere else on the
plate, and therefore are not a nonpublic forum.
PLPs are government speech, and Indiana "is not barred by the Free Speech Clause from
determining the content of what it says." Walker, 135 S.Ct. at 2245, 192 L.Ed.2d at 281 (citing
Summum, 555 U.S. at 467-68, 129 S.Ct. at 1131, 172 L.Ed.2d at 861). This is because "the Free
Speech Clause restricts government regulation of private speech; it does not regulate government
speech." Summum, 555 U.S. at 467, 129 S.Ct. at 1131, 172 L.Ed.2d at 861. The plaintiffs'
argument that the PLP regulations are not content-neutral therefore cannot succeed. "A
government entity," after all, "has the right to speak for itself . . . and to select the views that it
wants to express." Id. at 467-68, 1131, 861 (quoting Bd. of Regents of the Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 1354, 146 L.Ed.2d 193, 205 (2000)) (internal
quotation omitted). The plaintiffs warn that this conclusion will lead to Establishment Clause
and Free Speech Clause violations, equal protection violations, embarrassment for the state, and
employment discrimination claims. Because none of these issues are presented by the facts of
this case, we decline to address them.
3. Overbreadth, Vagueness, and Adequacy of Notice
The plaintiffs also argue that the PLP regulations are overbroad and vague. We decline
to address these challenges because they are moot. An appeal or issue can become moot in
various ways: (1) when it is no longer 'live' or when the parties lack a legally cognizable interest
in the outcome; (2) when the principal questions in issue have ceased to be matters of real
controversy between the parties; or, (3) when the court on appeal is unable to render effective
relief upon an issue. See Matter of Tina T., 579 N.E.2d 48, 52 (Ind. 1991). Because the
government is speaking, the BMV may deny or revoke PLPs regardless of the challenged
12
regulations. The plaintiffs' involvement is limited to the request for and display of PLP
alphanumeric combinations, neither of which is affected by the overbreadth and vagueness
challenges. The plaintiffs, then, "lack a legally cognizable interest in the outcome" and this
Court "is unable to render effective relief" on these challenges. Id.
Finally, the plaintiffs claim that the BMV provides inadequate notice after a PLP denial
or revocation, violating due process. Specifically, they argue that "custom and practice" create
"a property interest secured by due process." Appellee’s Br. at 44-45. The BMV responds that
"[m]otorists have no protected interest in possessing a personalized plate that displays any
particular message" because "there is no 'entitlement' to a personalized license plate."
Appellant's Br. at 41; Appellant's Reply Br. at 23. Agreeing with the BMV, we find that the
plaintiffs have not been deprived of due process.
"The requirements of procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of
Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d. 548, 556 (1972). The
plaintiffs assert that they have a property interest in their PLPs–one created by "rules or
understandings that stem from an independent source such as state law . . . ." Id. at 577, 2709,
561. But "a benefit is not a protected entitlement if government officials may grant or deny it in
their discretion." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 2803,
162 L.Ed.2d 658, 669 (2005). Here, the BMV retains full discretion over PLPs. While the BMV
is required to issue a regular license plate for registered vehicles, it may decline to issue PLPs for
virtually any reason. Ind. Code §§ 9-18-2-30; 9-18-15-1, -4(b). These statutes apply equally to
new applications and PLP renewals. Ind. Code § 9-18-15-4(a). The same discretion applies to
PLP revocations. No statute, custom, or practice secures a previously-issued PLP or supports a
claim of entitlement to its continued display. See Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33
L.Ed.2d at 561. Instead, a PLP, as government speech on government property, is freely
revocable.13
13
This is not to say that the BMV could as easily revoke the vehicle's registration or refuse to provide a
replacement plate. In this way, license plates are similar to driver's licenses. See Bell v. Burson, 402 U.S.
535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94 (1971) ("Once [driver's] licenses are issued . . . their
continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses
13
While the plaintiffs rely on "understanding, custom and practice," they do not specifically
identify any supporting relevant understandings, customs, or practices. These vague and
undefined references cannot support a property interest under the Fourteenth Amendment. See
Castle Rock, 545 U.S. at 763-64, 125 S.Ct. at 2807-08, 162 L.Ed.2d at 673-74. "To have a
property interest in a benefit, a person clearly must have more than an abstract need or desire for
it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d. at 561 (emphasis
added). The plaintiffs do not have that claim of entitlement, and thus, Due Process Clause
protections do not apply. Without due process protections, the applicants whose PLPs are denied
or revoked have no entitlement to reasons for the BMV's decision or to a hearing where they can
present evidence.
Conclusion
Indiana's personalized license plates are government speech. The Bureau of Motor
Vehicles, therefore, does not violate the First or Fourteenth Amendments in denying an
application for a PLP or revoking a previously issued PLP. Furthermore, Due Process Clause
protections do not apply because vehicle owners do not have a property interest in their
personalized license plates. We reverse the trial court's grant of the plaintiffs' motion for
summary judgment as to these issues and direct the trial court to enter summary judgment on
these claims for the BMV.
Rush, C.J., and Rucker, David, and Massa, JJ., concur.
thus involves state action that adjudicates important interests of the licensees. In such cases the licenses
are not to be taken away without that procedural due process required by the Fourteenth Amendment.").
14
| {
"pile_set_name": "FreeLaw"
} |
46 Cal.Rptr.3d 258 (2006)
141 Cal.App.4th 715
The PEOPLE, Plaintiff and Respondent,
v.
Michael John KIRK, Defendant and Appellant.
No. G035897.
Court of Appeal of California, Fourth District, Division Three.
July 21, 2006.
*259 Paul S. Meyer, Costa Mesa, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, J.
Penal Code section 1000 permits a court to defer judgment for certain novice drug offenders, and to divert the defendant from the normal criminal process for drug treatment.[1] If diversion is successfully completed, the charges are dismissed.
One basis for exclusion from diversion is a "conviction for any offense involving controlled substances prior to the alleged commission of the charged offense." (§ 1000, subd. (a)(1).) This case presents an issue of first impression: Does a guilty plea, on which sentence has not been imposed, constitute a prior conviction for purposes of section 1000? The term "conviction" has no fixed definition and is susceptible to different meanings that must be derived from the surrounding context. (People v. Rhoads (1990) 221 Cal.App.3d 56, 60, 270 Cal.Rptr. 266 (Rhoads).) For the purposes of section 1000, we conclude "conviction" means the ascertainment of guilt, which occurs as soon as defendant pleads guilty (or a jury enters a guilty verdict) and does not require more.
Accordingly, we affirm the judgment in this case. The court and district attorney properly determined Michael John Kirk was ineligible for deferred entry of judgment pursuant to section 1000 because he pleaded guilty to an offense involving controlled substances in federal court a few months prior.
FACTS
Kirk was charged with two offenses, unlawfully possessing methamphetamine and unlawfully using and being under the influence of methamphetamine. At the outset of the proceedings, Kirk's counsel requested deferred entry of judgment pursuant to section 1000. The district attorney asserted Kirk was ineligible because he had "a federal case of a possession of a controlled substance to which he pleaded guilty ... prior to this violation." Kirk's counsel argued the guilty plea should not be treated as a prior conviction because "there was no sentencing that took place in that case and no sentencing is anticipated."
DISCUSSION
A. Deferred Entry of Judgment Section 1000
Sections 1000 through 1000.4 "authorize the courts to `divert' from the normal criminal process persons who are formally charged with first-time possession of drugs ... and are found to be suitable for treatment and rehabilitation at the local level." (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62, 113 Cal. Rptr. 21, 520 P.2d 405.) The purpose of section 1000 "is two-fold. First, diversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive *260 method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables courts to devote their limited time and resources to cases requiring full criminal prosecution." (Ibid., fn.omitted.)
To achieve these specific goals, eligible defendants are narrowly defined. The Legislature determined a defendant must satisfy six factors to qualify.[2] Relevant to this case is the first requirement: "The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense." (§ 1000, subd. (a)(1).)
B. Statutory Interpretation
Kirk does not dispute the fact he pleaded guilty to an offense involving controlled substances in federal court a few months prior to requesting diversion, but he argues the entry of a guilty plea is not a "conviction" within the meaning of section 1000. Therefore, whether Kirk is eligible for a deferred entry of judgment depends on the statutory interpretation of the term "conviction."
We are aware "the term `conviction' has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending upon the context in which the word is used." (Rhoads, supra, 221 Cal.App.3d at p. 60, 270 Cal.Rptr. 266.) Consequently, we must "first examine the language of the statute enacted, giving the words their usual, ordinary meaning. [Citation.] ... [¶] The language is construed in the context of the statute as a whole and the overall statutory scheme, so that we give `"significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose."' [Citation.] `Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].' [Citation.]" (In re Ogea (2004) 121 Cal.App.4th 974, 980-981, 17 Cal. Rptr.3d 698.)
In some cases the term "conviction" is defined "in a narrow sense signifying a verdict or guilty plea," and other times the term is "given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon. [Citations.]" (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073-1074, 194 Cal.Rptr. 717.) For example, when a prior conviction goes to the determination of "civil consequences the *261 conviction must be interpreted in a broader sense ...." (Id. at p. 1076, 194 Cal.Rptr. 717.) A civil disability flowing from a conviction often concerns a valuable right of citizenship, and in this context, any ambiguity in the term "conviction" is resolved in favor of the citizen. (Ibid.) Accordingly, a "conviction" will require not only the ascertainment of guilt, but also the judgment entered thereon. (Ibid. [construing statute barring those with convictions from being employed as peace officers]; Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418, 139 Cal.Rptr. 473 [construing constitutional provision disqualifying those with convictions from holding public office]; Truchon v. Toomey (1953) 116 Cal.App.2d 736, 744-745, 254 P.2d 638 [construing constitutional provision disqualifying those with convictions from voting].)
Yet, in criminal cases, courts have held an admission or finding of guilt is sufficient to establish a "conviction." "Where the existence of a prior conviction triggers increased punishment, courts interpret `conviction' to mean the factual ascertainment of guilt by verdict or plea." (People v. Williams (1996) 49 Cal.App.4th 1632, 1637, 57 Cal.Rptr.2d 448 (Williams) ["Three Strikes" law, § 667, subds. (b)-(i)]; People v. Shirley (1993) 18 Cal.App.4th 40, 46-47, 22 Cal.Rptr.2d 340 (Shirley) [§ 667, subd. (a)]; Rhoads, supra, 221 Cal.App.3d at p. 60, 270 Cal.Rptr. 266 [Health & Saf.Code, § 11370.2, subd. (c)]; People v. Loomis (1965) 231 Cal.App.2d 594, 595-596, 42 Cal. Rptr. 124 [§ 12021].)
In Shirley, the court was asked to determine whether a great bodily injury enhancement admitted by the defendant in an earlier proceeding, but stricken for purposes of sentencing, could be used as a serious felony component in a subsequent court proceeding. (Shirley, supra, 18 Cal. App.4th at p. 44, 22 Cal.Rptr.2d 340.) The court held the defendant's admission of the enhancement was what was telling, not the imposition of a sentence. (Id. at pp. 46-47, 22 Cal.Rptr.2d 340.)
Similarly, courts construing the term "conviction" in the context of the Three Strikes law have also rejected the argument a prior "conviction" must include a sentence. (See, e.g., Williams, supra, 49 Cal.App.4th at p. 1638, 57 Cal.Rptr.2d 448.) "The focus of the `[T]hree [S]trikes' law is conduct: did the defendant commit a felony after having previously committed one or more serious or violent felonies? When a defendant pleads guilty to or is convicted of a felony, the law is satisfied factually that he or she committed it. When the deterrent effect of the law fails and the defendant subsequently commits another felony, he or she becomes a repeat offender and deserves harsher punishment, regardless of whether judgment and sentence have been pronounced on the initial offense." (Ibid.) Thus, under the Three Strikes law, "`"prior felony convictions" ... falls within the general rule illustrated in [Rhoads]: when guilt is established, either by plea or verdict, the defendant stands convicted and thereafter has a prior conviction.'" (Ibid.; see also People v. Laino (2004) 32 Cal.4th 878, 898, 11 Cal.Rptr.3d 723, 87 P.3d 27.)
The court in Rhoads rejected the defendant's argument "`nonsensical results' might occur if an enhancement were imposed based upon a plea which was subsequently withdrawn or rejected." (Rhoads, supra, 221 Cal.App.3d at p. 59, 270 Cal. Rptr. 266.) The court reasoned, "We find that the truly `nonsensical results' would occur under defendant's interpretation of the term `conviction.' If defendant's interpretation were accepted, a person could commit and plead guilty to any number of violations within the purview of the statute, but so long as sentencing did not *262 occur, the mandatory three-year enhancement would be avoided. The Legislature certainly did not intend to benefit a repeat offender such as defendant based solely on the fortuity of the timing of sentencing. [¶] The possibility that a plea might be withdrawn or might be rejected does not, in our opinion, affect the validity or effect of the plea unless and until withdrawal or rejection occurs. A guilty plea which might be withdrawn or rejected is directly analogous to a felony conviction which might be reversed on appeal. The legal effect of that conviction remains intact pending appeal and may be charged as a prior felony in a subsequent indictment [citation] or used to impeach a witness at trial (see People v. Braun (1939) 14 Cal.2d 1, 6, 92 P.2d 402 ... [where the Supreme Court held that use of a prior conviction for impeachment purposes was proper even though after the trial where impeachment occurred, the prior conviction was reversed on appeal]). There is no reason to afford a guilty plea, which might be invalidated as the result of subsequent events, any less efficacy than that afforded to a conviction pending appeal." (Id. at pp. 59-60, 92 P.2d 402, fn. omitted.)
C. Interpretation of "Conviction" for Purposes of Section 1000
Kirk argues his guilty plea is not a disqualifying event for purposes of section 1000 because until sentence is pronounced he has not suffered a conviction. He essentially urges us to ignore his conduct and adopt a literal and constricted definition of the term conviction. We decline to do so.
As noted earlier, the Legislature in enacting section 1000, set forth statutory criteria to identify the incidental and inexperienced drug user who would likely respond positively to prompt exposure to education and counseling programs and who should be diverted from the normal criminal process. (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at p. 62, 113 Cal.Rptr. 21, 520 P.2d 405.) In determining a defendant's eligibility for diversion, the court must evaluate conduct to determine whether the defendant is an experimental or tentative user who is amenable to treatment and rehabilitation. Just as a defendant is more severely punished for bad conduct under section 667 (Williams, supra, 49 Cal.App.4th at pp. 1637-1638, 57 Cal.Rptr.2d 448), a defendant under section 1000 benefits from what is basically good conduct, i.e., the lack of prior violent or drug related criminal behavior.
In entering his plea of guilty in federal court, Kirk necessarily admitted his involvement with a controlled substance. It is the factual determination of this conduct that renders Kirk ineligible for diversion. In adopting section 1000, the Legislature did not intend to benefit a drug offender "based solely on the fortuity of the timing of sentencing." (Rhoads, supra, 221 Cal. App.3d at p. 59, 270 Cal.Rptr. 266.)
Additionally, an express objective of section 1000 is to divert qualified defendants from the normal criminal process. As a defendant pending sentencing on a federal felony charge, Kirk is already entangled in the normal criminal process. A deferred entry of judgment in state court will not extricate Kirk from the criminal justice system.
In light of the above, we conclude we are not faced with two equally reasonable but conflicting interpretations of "conviction" and, therefore, need apply the rule "requiring courts to adopt the more lenient interpretation of ambiguous penal statutes.... `Courts will not construe an ambiguity in favor of the accused if "such a construction is contrary to the public interest, sound sense, and wise policy." [Citation.] *263 Rather, "[t]he major consideration in interpreting a criminal statute is legislative purpose...."'" (Williams, supra, 49 Cal.App.4th at pp. 1638-1639, 57 Cal. Rptr.2d 448.)
Kirk's reliance on In re DeLong (2001) 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385 (DeLong), to support his argument he meets the eligibility requirements of section 1000, despite his prior guilty plea, is misplaced. In DeLong, the court interpreted the term "convicted" as used in a newly enacted drug diversion statute: Proposition 36 was "approved at the November 7, 2000 General Election," but did not become effective until July 1, 2001. (Id. at p. 569, 113 Cal.Rptr.2d 385.) At issue in DeLong was whether one provision of the statutory scheme, section 1210.1, would apply to "the limited class of defendants who, as of the effective date, had been adjudged guilty and were awaiting sentencing." (Ibid.) Only defendants "convicted" as of July 1, 2001, were eligible for diversion from incarceration into substance abuse treatment programs.
Concluding Proposition 36 "was intended to have a far-ranging application to nonviolent drug offenders[,]" the court determined "convicted" as used in 1210.1 meant "adjudication of guilt and judgment thereon. Consequently, DeLong, who was found guilty but had not yet been sentenced when the initiative took effect on July 1, 2001, had not yet been convicted as of that date and thus [was] eligible for sentencing pursuant to Proposition 36." (DeLong, supra, 93 Cal.App.4th at pp. 569-570, 113 Cal.Rptr.2d 385.) The DeLong court reasoned, in view of the statutory scheme's "provisions extending it to defendants who were already on probation or on parole at the time the initiative took effect, no rationale appears to exclude from its wide reach" defendants like DeLong who were found guilty but had not yet been sentenced as of July 1, 2001. (Id. at p. 569, 113 Cal.Rptr.2d 385.)
We recognize both sections 1210.1 and 1000 concern the fate of drug offenders, but the focus and ultimate purpose of the two statutory schemes are not analogous.[3] The DeLong court determined the basic goal of section 1210.1 was to provide drug treatment to as many nonviolent defendants as possible and "the term `convicted' ... should be interpreted so as to give the initiative a broad application." (DeLong, supra, 93 Cal.App.4th at p. 570, 113 Cal. Rptr.2d 385.) In contrast, the Legislature intended section 1000 to have a limited application to only a small class of defendants, and it specifically articulated narrow and stringent requirements for eligibility. The purpose of section 1000 would be frustrated by a construction ignoring evidence of factual guilt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, Acting P.J., and MOORE, J.
NOTES
[1] All further statutory references are to the Penal Code, unless otherwise indicated.
[2] Specifically, it must appear to the prosecuting attorney that "all of the following apply to the defendant: [¶] (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. [¶] (2) The offense charged did not involve a crime of violence or threatened violence. [¶] (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. [¶] (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. [¶] (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. [¶] (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense." (§ 1000, subd. (a)(1).)
[3] In light of this finding, we need not determine whether DeLong was correctly decided, nor do we weigh in on the debate over the retroactive application of section 1210.1 to defendants who were not sentenced before July 1, 2001. However, we note several courts disagree with the DeLong court's construction of section 1210.1. (See e.g., People v. Mendoza (2003) 106 Cal.App.4th 1030, 1035, 131 Cal.Rptr.2d 375 [under the plain meaning of Proposition 36, convicted "means only adjudication of guilt, and not adjudication of guilt and the judgment"].)
| {
"pile_set_name": "FreeLaw"
} |
907 F.Supp. 280 (1995)
Gregory LITTLE, Plaintiff,
v.
STATE OF ILLINOIS DEPARTMENT OF REVENUE, BUREAU OF CRIMINAL INVESTIGATION; Steven Hirsch, Individually and as Bureau Manager for the Bureau of Criminal Investigation; and Michael Fullman, Defendants.
No. 95 C 2792.
United States District Court, N.D. Illinois, Eastern Division.
December 8, 1995.
*281 Gerald A. Goldman, Arthur R. Ehrlich, Jonathan C. Goldman, Law Offices of Gerald A. Goldman, Chartered, Chicago, IL, for plaintiff.
Mitchell Bruce Katten, Illinois Attorney General's Office, Chicago, IL, for defendants.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Plaintiff Gregory Little filed this employment discrimination action under Title VII, 42 U.S.C. § 2000(e), et. seq., and 42 U.S.C. § 1983, against defendants State of Illinois Department of Revenue (the "Department"), Steven Hirsch ("Hirsch"), and Michael Fullman ("Fullman"). Plaintiff alleges that defendants: (1) retaliated against plaintiff for objecting to defendants' alleged racially discriminatory employment practices, in violation of Title VII (Count I); (2) engaged in racially discriminatory conduct against plaintiff, in violation of Title VII (Count II); and (3) retaliated against plaintiff for his opposition to discriminatory practices in violation of his rights as secured by the due process clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983 ("§ 1983") (Count III). Defendant Hirsch has moved to strike Counts I and II of the complaint against him under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Additionally, defendants Hirsch and Fullman *282 have moved to dismiss Count III in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the court grants in part and denies in part defendants' motion.
FACTS[1]
Plaintiff is an African-American male who was employed with the Department's Bureau of Criminal Investigation (the "Department") as a Revenue Special Agent. Hirsch, the Bureau Manager, and Fullman, the Special Agent in Charge, supervised plaintiff at all times relevant to the complaint. Beginning in June 1992, plaintiff objected to defendants' alleged racially discriminatory practices. These practices included the denial of travel expenses and promotions to African-American agents within the Department. Plaintiff advised defendants he would be filing formal employment discrimination charges if the discriminatory practices against African-American agents continued.
In August 1993, plaintiff applied for a supervisory position. Following plaintiff's application, defendants added a new job requirement to the position, which disqualified plaintiff. When plaintiff requested an interview for the position in January 1994, he was told he would not be interviewed because he failed to meet the job's new requirements. Plaintiff advised Hirsch that this new requirement unfairly discriminated against African-American agents who were otherwise qualified for the position. Hirsch accused plaintiff of being a "race-baiting" agitator and selected a white male for the position.
That same month, defendants transferred plaintiff from his office in Evergreen Park to the Illinois Gaming Board, another Department division, in Joliet, Illinois. Defendants ignored plaintiff's formal objections to the transfer.
In February and May of 1994, plaintiff continued to complain to Hirsch about the Department's racially discriminatory hiring and promotion practices. Following these complaints, defendants transferred plaintiff again on June 3, 1994. This time, plaintiff was transferred to a different office of the Illinois Gaming Board, and given mainly ministerial duties. On June 16, 1994, less than two weeks after this transfer, defendants told plaintiff his credentials to act as a peace officer were being revoked. At that time, they also denied his request for a leave of absence. Defendants offered no explanation for either action.
Four days later, on June 20, 1994, defendants denied plaintiff the use of a state vehicle for work-related matters. Other similarly situated agents retained use of their state vehicles. That same day, defendants ordered plaintiff to undergo a psychological "fitness for duty" examination before he could continue to work. Defendants delayed scheduling this evaluation several weeks, preventing plaintiff from working. On June 23, 1994, defendants informed plaintiff he would no longer be reimbursed for travel and transportation expenses when using his personal car for work matters, while other agents continued to be reimbursed.
In July 1994, defendants refused to promote plaintiff to Senior Special Agent, although pursuant to a Union agreement, the Department had agreed to promote all Special Agents of a certain seniority to the position of Senior Special Agent and promoted other less qualified and less senior agents.
On August 5, 1994, plaintiff filed a formal charge of race discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). Defendants threatened to initiate termination charges against plaintiff if he failed to withdraw all complaints and grievances. Plaintiff did not withdraw his complaints. In September 1994, shortly after receiving notice of the EEOC charge and after plaintiff passed his psychological examination, defendants filed allegedly false charges of misconduct against plaintiff. At a pre-disciplinary hearing on *283 these charges, defendants refused to permit plaintiff's attorney to remain at the hearing, despite plaintiff's entitlement to have his representative present. Following the pre-disciplinary hearing, defendants persisted in these charges, manufacturing false evidence against plaintiff, despite plaintiff's demonstration that the charges were baseless.
Defendants notified plaintiff in November that he would be suspended pending discharge based on these charges. Defendants terminated plaintiff in December 1994.
DISCUSSION
Under Rule 12(b)(6), a complaint can be dismissed for failure to state a claim "only if the plaintiff can not prove any set of facts upon which relief may be granted." Rankow v. First Chicago Corp., 870 F.2d 356, 357 n. 1 (7th Cir.1989). Further, in considering a motion to dismiss, the court must "accept as true all facts alleged in the ... complaint and ... draw all reasonable inferences from the pleadings in favor of the [plaintiff]." Gillman v. Burlington Northern Railroad Co., 878 F.2d 1020, 1022 (7th Cir. 1989). It is unnecessary that a plaintiff correctly identify the governing legal theory of a claim, if the facts alleged in the complaint support a claim. Teumer v. General Motors Corp., 34 F.3d 542, 545 (7th Cir.1994).
In defending against a motion to dismiss, a plaintiff may "allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir.1992). Moreover, the Seventh Circuit recently held that in responding to a motion to dismiss, the nonmoving party may clarify the legal basis supporting his or her claims. Stransky v. Cummins Engine Co., 51 F.3d 1329 (7th Cir.1995).
In plaintiff's response to defendants' motion to strike and dismiss, plaintiff concedes that Hirsch cannot be held liable under Title VII because he was not plaintiff's "employer." Consequently, defendant's motion to strike Counts I and II against Hirsch is granted. Accordingly, the only issue left for this court to consider is defendants' motion to dismiss Count III of the complaint.
§ 1983
In moving to dismiss plaintiff's § 1983 claim, defendants raise several arguments. First, they argue that plaintiff's § 1983 claim must be dismissed because plaintiff has failed to state a claim for a due process violation of his liberty interest in public employment. Second, defendants argue that plaintiff has failed to allege sufficiently a deprivation of property without due process because he has not alleged that he had a constitutionally recognized property interest in his employment. Defendants also argue that plaintiff's claim fails to rise to the level of a deprivation of property without due process because he has not alleged that he was denied process to which he was entitled. Finally, defendants argue that plaintiff's due process claim is deficient because an adequate post-deprivation remedy exists.
Defendants in this case blur the distinction between procedural due process claims and other constitutional injuries remedied under § 1983. As the Supreme Court explained in Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990), there are three types of § 1983 actions: (1) violation of rights under the Bill of Rights, (2) violations of substantive due process rights, and (3) violations of procedural due process rights. Consequently, defendants incorrectly focus on the existence of a liberty or property interest in public employment or, alternatively, the adequacy of process afforded plaintiff. As plaintiff clarifies in his response brief, his claim is a substantive, not a procedural, due process claim. The alleged unconstitutional act underlying the § 1983 claim is not the deprivation of a liberty or property interest or inadequate process, but rather defendants' retaliatory conduct itself.
The initial inquiry in every § 1983 action "must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws *284 of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981). Only the second prong of this test is at issue in this case.
As the Seventh Circuit has recently held, "[a]n allegation of deprivation of due process rights states a claim under both procedural and substantive due process." Black v. Lane, 22 F.3d 1395, 1402 (7th Cir.1994). In examining § 1983 claims, the Seventh Circuit has noted that "simply because they are not `procedural due process' injuries, other constitutional harms may arise no matter how much process is afforded." Sherwin Manor Nursing Center v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir.1994). "Substantive due process is a shorthand for the fact that the Supreme Court has interpreted the due process clause of the Fourteenth Amendment to confer certain substantive rights based mainly on the Bill of Rights." Toney-El v. Franzen, 777 F.2d 1224, 1227 (7th Cir.1985) (citing Brown v. Brienen, 722 F.2d 360, 366 (7th Cir.1983).
The Seventh Circuit has likewise held that "substantive rights" include those rights guaranteed in the Bill of Rights. Lawshe v. Simpson, 16 F.3d 1475, 1479 (7th Cir.1994). Consequently, the Lawshe court held that a substantive due process claim against a state official who allegedly violated a plaintiff employee's free speech rights by retaliating against the plaintiff for his speech "would be possible because the First Amendment has been incorporated into the Fourteenth Amendment...." Id.
The Seventh Circuit has specifically held that state retaliatory conduct constitutes a substantive due process violation if the retaliation was for exercising constitutional rights. Black, 22 F.3d 1395, 1402-03. In Black, the court held that retaliatory conduct by prison officials against an inmate for exercising his First Amendment rights constituted a violation of substantive due process. Id. at 1402. The court held that Black's complaint created an inference that the defendants retaliated against him for exercising his First Amendment rights by filing an administrative complaint against prison officials. Id. See also, Bryant v. Northeast Illinois Regional Commuter Railroad Corp., 809 F.Supp. 584 (N.D.Ill.1992) (retaliatory discharge that violated First Amendment rights supported claim under § 1983 and the First and Fourteenth Amendments); Woerner v. Brzeczek, 519 F.Supp. 517, 522 (N.D.Ill.1981) (complaint alleging retaliation for filing complaints of sexual harassment stated cause of action under § 1983 because such speech may be entitled to constitutional protection under First Amendment).
Under Black, in order to state a substantive due process claim under § 1983, the facts alleged in Count III must create a reasonable inference that defendants retaliated against plaintiff for exercising his First Amendment rights. While defendants emphasize in their reply brief that Count III fails to specifically mention the First Amendment, as discussed above this is not fatal to the complaint. Teumer, 34 F.3d at 545. At this stage of the proceedings, if the facts alleged support a reasonable inference that plaintiff's First Amendment rights may have been violated, the complaint adequately states a claim under § 1983. See Simmons v. Chicago Public Library, 860 F.Supp. 490, 493 (N.D.Ill.1994) (while plaintiff's § 1983 claim completely failed to identify what constitutional right her employer's discriminatory practices allegedly violated, after "taking all reasonable inferences in her favor" the court held that plaintiff adequately pled a violation of equal protection of the laws).
A public employee's speech is protected by the First Amendment if: (1) it touches on a matter of public concern, and (2) the employee's interest in speaking outweighs any injury the speech could cause the employer's interest in promoting effective and efficient public service. Waters v. Churchill, ___ U.S. ___, 115 S.Ct. 49, 130 L.Ed.2d 10 (1994). Consequently, "[n]ot all speech by public employees is protected by the First Amendment such that constitutional concerns are raised if a public employer retaliates in response to that speech." Cliff v. Board of School Commissioners of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir.1994).
In determining whether the speech is a matter of public concern, the "content, form, and context" of the speech must be *285 considered. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). It is generally the content of the speech that is the most important. Cliff, 42 F.3d at 409. However, even if the topic is deemed one of public import, that "does not automatically render [the employee's] remarks on that subject protected." Smith v. Fruin, 28 F.3d 646, 651 (7th Cir.1994). Consequently, "the public concern element is lacking as a matter of law if speech `concerns a subject of public interest but the expression addresses only the personal effect upon the employee.'" Cliff, 42 F.3d at 410 (quoting Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir.1994)). The Seventh Circuit has emphasized that in determining whether speech is of public concern, the focus is on whether the employee's intent was to further a public or a purely private interest. Phares v. Gustafsson, 856 F.2d 1003, 1008 (7th Cir.1988).
In Count III of his complaint, plaintiff alleges that beginning in June 1992, he objected to the defendants' racially discriminatory practices against African-American agents. Plaintiff advised his supervisors about his objections and threatened to file formal charges if the Department's racially discriminatory practices continued. Plaintiff spoke to his supervisors about the Department's potentially actionable discrimination before any of his own employment problems began. Additionally, plaintiff alleges that he also complained about defendants' discriminatory hiring practices. Since plaintiff was already employed by the Department, these complaints were clearly not a matter of private concern. In several paragraphs of Count III, plaintiff refers to his complaints of defendants' discriminatory practices against African-American agents as a group. Based on these allegations, the court finds that it is reasonable to infer that plaintiff's complaints about the Department's racially discriminatory conduct concerned other African-American agents generally. Consequently, the subject matter of plaintiff's allegations appears to be a matter of public concern. See Pollard v. City of Chicago, 643 F.Supp. 1244, 1249 (N.D.Ill.1986) (speech identifying potentially actionable discrimination by government employees constitutes a matter of public concern).
Because it finds that plaintiff alleges speech that may touch on matters of public concern, the court must proceed to the second element of the Waters test: whether the public employer's interest in promoting the efficiency of public services outweighs the employee's interest in expression. Based on the above stated allegations, and giving plaintiff all favorable inferences, the court finds that plaintiff may be able to prove a set of facts entitling him to relief. See Pollard, 643 F.Supp. at 1249 (on a motion to dismiss public employee's First Amendment claim, it could not be said as a matter of law that the employer's interest in efficiency outweighs the employee's interest in expression, rather, "the Court need only note that the ... [employee's] speech ... would tend to aid the efficient operation of [the] Department"). Therefore, the court finds that at this stage of the proceedings, plaintiff has sufficiently stated a § 1983 claim that his constitutional rights were violated by defendants' alleged retaliatory conduct. Accordingly, defendants' motion to dismiss Count III for failure to state a claim under § 1983 is denied.
CONCLUSION
For the reasons set forth above, the court grants the motion to strike Counts I and II against Steven Hirsch, and denies defendants' motion to dismiss Count III.
NOTES
[1] The facts are taken from the allegations in the complaint. When considering a motion to dismiss pursuant to Rule 12(b)(6), this court must accept all well-pleaded facts and allegations in the complaint as true, make reasonable inferences therefrom, and view the allegations in the light most favorable to the plaintiff. See, e.g., Albright v. Oliver, ___ U.S. ___, ___, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994); Badger Pharmacal, Inc., v. Colgate-Palmolive Co., 1 F.3d 621, 626 (7th Cir.1993), Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981).
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7620
ROBERT E. SAMPSON,
Plaintiff - Appellant,
versus
ROCKINGHAM COUNTY REGIONAL JAIL; REGIONAL JAIL
CHIEF OFFICER; SHERIFF & ADMINISTRATION,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-00-793-7)
Submitted: February 9, 2001 Decided: February 20, 2001
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert E. Sampson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert E. Sampson appeals the district court’s order denying
relief on his 42 U.S.C.A. § 1983 (West Supp. 2000) 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. Sampson v. Rockingham Cnty Jail, No. CA-00-
793-7 (W.D. Va. Oct. 30, 2000). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
FILE COPY
COURT OF APPEALS
SEVENTH DISTRICT OF TEXAS
AMARILLO
MANDATE
THE STATE OF TEXAS
To the 64th District Court of Hale County, Greeting:
BEFORE our Court of Appeals for the Seventh District of Texas, on December 23, 2014, the
cause upon appeal to revise or reverse your judgment between
Brunita Lilly Frausto
v. No. 07-14-00382-CR And Trial Court No. A17707-0807
The State of Texas
was determined and therein our said Court made its order in these words:
Pursuant to the opinion of the Court dated December 23, 2014, it is ordered,
adjudged and decreed that this appeal is dismissed.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have been paid are adjudged.
It is further ordered, adjudged and decreed that inasmuch as the appeal is
dismissed at the appellant’s request, no motion for rehearing will be entertained, and
our mandate will issue forthwith.
It is further ordered that this decision be certified below for observance.
oOo
WHEREFORE, WE COMMAND YOU to observe the order of said Court of Appeals for the
Seventh District of Texas, in this behalf, and in all things to have it duly recognized, obeyed and
executed.
WITNESS, the Honorable Justices of our said Court, with the seal thereof annexed, at the City of
Amarillo on December 23, 2014.
Vivian Long
VIVIAN LONG, CLERK
| {
"pile_set_name": "FreeLaw"
} |
160 F.2d 283 (1947)
CAPITAL TRANSIT CO., Inc.,
v.
GAMBLE et al.
No. 9244.
United States Court of Appeals District of Columbia.
Argued January 9, 1947.
Decided March 10, 1947.
Mr. Howard Boyd, of Washington, D C., for appellant. Mr. Edward Bennett Williams, of Washington, D. C., also entered an appearance for appellant.
Mr. Wilbert McInerney, of Washington, D. C., with whom Mr. Morris Benson, of Washington, D. C., was on the brief, for appellees. Mr. Lewis A. McGowan, Jr., of Washington, D. C., also entered an appearance for appellees.
Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.
CLARK, Associate Justice.
This is an appeal from a verdict and judgment of the District Court awarding damages for personal injuries. Defendant moved for a directed verdict at the close of the plaintiffs' evidence and again at the close of its evidence. These motions were denied. After the jury returned a verdict in favor of plaintiffs and judgment was entered thereon, defendant moved for judgment notwithstanding the verdict which was denied. Defendant, as appellant here, urges that this action of the trial court was error.
Considering the case as we do, it presents a single question which can only be answered by an analysis of the evidence. If the evidence, construed most favorably to the plaintiffs, is insufficient to form a basis for a verdict for plaintiffs, the court erred in submitting the case to the jury. We agree with the contention presented by appellant that the court should have directed a verdict in its favor at the close of the evidence. While we are of opinion that defendant's motion made at the close of plaintiffs' evidence should have been granted, defendant's introduction of evidence was a waiver of that motion and the court's failure to grant it cannot be alleged as error on appeal. See Wigmore, Evidence (3d Ed. 1940) § 2496. However, defendant's evidence in no way strengthened plaintiffs' *284 case and plaintiffs are in no better position as a result of it than they were at the termination of their own presentation.
Appellant's streetcar was proceeding west in the 1200 block of C Street, Northeast, a one-way street thirty-two feet wide with a single streetcar track four feet eight inches wide laid in the center. Along side the south sidewalk and curb of the street was stacked furniture extending from in front of the premises 1209 C Street east to 1213 or 1215 C Street. Peggy Ann Gamble, an infant five years of age at the time of the accident, had been playing on the sidewalk along the south side of the street when she ran from the curb in front of the premises at 1209 C Street directly into the left front side of appellant's streetcar.
Mrs. Massicotte, plaintiffs' only eyewitness, testified that she was knocking at the door of 1209 C Street and that she turned around just in time to see the child "run directly into the trolley car"; that she saw the streetcar prior to the time it struck the child; that she "knew she (the child) was going to be hit with the streetcar"; that she wouldn't estimate how far away the streetcar was when she saw the child start from the curb but that in reference to the furniture piled on the sidewalk the "streetcar might have been about maybe around 1213, 1211; it wasn't very far"; that the child was running fast; that when she saw the child run off the curb she knew she was going to be hit because the trolley car was so close; that "she couldn't escape if she was going to keep right on going"; that she did not become aware of the fact that brakes on the streetcar were being applied until after the child was hit; that she didn't know how far the streetcar went after it struck the child before it came to a complete stop but that "it didn't go very far." Other witnesses for plaintiffs who came upon the scene after the accident happened testified that the child was lying, with respect to the streetcar, "just to the rear of the front trucks", or "about middleway of the car"; that the width of the houses along the street was from 12 to 14 feet (the exact measurement was not given); that the rear of the streetcar when stopped was at 1215 C Street; that the streetcar was about 35 feet long.
We are of opinion that the evidence adduced by plaintiffs, considered with all the inferences which justifiably can be drawn from it in their favor, is not sufficient to properly support a verdict for them. "When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither." Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 232, 74 L.Ed. 720; Kelly Furniture Co. v. Washington Ry., 64 App.D.C. 215, 76 F.2d 985; Ewing v. Goode, C. C., 78 F. 442, 444.
One undisputed fact which is entirely apart from the estimates by witnesses of speeds and distances, seems to answer the question of negligence by the motorman. The child, running fast, darted from behind the stack of furniture and ran a little less than thirteen feet into the side of the car just to the rear of its curved front. So the maximum time which the motorman had to avoid the accident was a little less than the time it took the child to run fast the thirteen feet. We say a little less time, because to avoid the accident he would have had to stop the car before it reached the spot where the child was, which, as we have said, was slightly to the rear of the front of the car. Anything less than a complete stop before the spot of the collision would have brought the child into the front of the car instead of into its side. We cannot see how the motorman could possibly be held to have been negligent in failing to stop in so brief a moment of time.
It was strongly urged on the part of appellee that a child of five could not be guilty of contributory negligence. There is conflict of authority on this point and we understand the rule to be that the question of the ability of a child of five to be guilty of contributory negligence depends on the child and the degree of intelligence it is shown to have possessed. But where, as here, the evidence as to primary negligence produced by the plaintiff is so weak that to submit it to a jury would be to allow them to speculate as to the defendant's negligence the question of contributory negligence does not enter and the court should rightfully exercise its lawful *285 discretion and withhold that evidence from the jury. Appellant's motion for a directed verdict made at the conclusion of the evidence should have been granted. Failing this, the court should have granted appellant's motion for judgment notwithstanding the verdict. The judgment is reversed and the case remanded with instructions to dismiss the complaint. See Cone v. West Virginia Pulp and Paper Co., 67 S.Ct. 752.
Reversed.
| {
"pile_set_name": "FreeLaw"
} |
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-279-CR
NO. 2-02-280-CR
JOSEPH WEBB
APPELLANT
V.
THE STATE OF TEXAS
STATE
------------
FROM THE 371ST DISTRICT COURT OF
TARRANT COUNTY
------------
OPINION
------------
Joseph Webb appeals his convictions for
possession of child pornography. In one point, appellant contends that the trial
court erred in overruling his first amended motion for new trial because the
Texas child pornography statute is vague and overbroad and in violation of the
First Amendment to the United States Constitution. See Tex. Penal Code
Ann. §§ 43.25, 43.26 (Vernon 2003). We will affirm.
Based on information that appellant had
child pornography at his residence, Fort Worth police were able to obtain a
search warrant for the premises. During the search, they found and seized a
photograph depicting a young girl engaged in an act of oral sex and a computer
hard drive containing approximately 7,480 photographs, one movie, and
approximately 1,408 stories relating to child pornography. Appellant was
indicted for possession of both the computer images and the photograph. He pled
guilty to both indictments. On May 13, 2002, after hearing evidence regarding
punishment, the trial court sentenced him to ten years' incarceration.
On June 4, 2002, appellant filed a motion
for new trial alleging that the evidence was insufficient to support a guilty
plea. On June 12, he filed a notice of appeal. Then, on July 5, 2002,
appellant's attorney filed an amended motion for new trial contending that
sections 43.25 and 43.26 of the Texas Penal Code are vague and overbroad in
violation of the First Amendment. After hearing argument on appellant's motion,
the trial court denied the motion and appointed appellant counsel for his
appeal.
In his sole point, appellant contends that
the trial court erred in overruling his first amended motion for new trial.
Appellant, however, did not file his amended motion for new trial within thirty
days of the date sentence was imposed. (1) See
Tex. R. App. P. 21.4(b) (stating that defendant must file amended motion for new
trial within thirty days after the date sentence imposed). Therefore, his
amended motion was untimely and cannot form the basis for points on appeal. See
id.; Mercier v. State, 96 S.W.3d 560, 562 (Tex. App.--Fort Worth
2002, pet. stricken); Rangel v. State, 972 S.W.2d 827, 838 (Tex.
App.--Corpus Christi 1998, pet. ref'd).
Although appellant's amended motion for
new trial was untimely, this does not prevent us from deciding the merits of his
appeal. A defendant may raise a constitutional challenge to the facial validity
of a statute for the first time on appeal. Garcia v. State, 887 S.W.2d
846, 861 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1005 (1995).
Accordingly, we will address appellant's argument that the Texas child
pornography statute is vague and overbroad and in violation of the First
Amendment to the United States Constitution. See id.
When reviewing the constitutionality of a
statute, we presume the statute is valid and that the legislature has not acted
unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561
S.W.2d 503, 511 (Tex. Crim. App. 1978); Sisk v. State, 74 S.W.3d 893,
901 (Tex. App.--Fort Worth 2002, no pet.). It is the challenger's burden to show
that the statute is unconstitutional. Ex parte Anderson, 902 S.W.2d
695, 698 (Tex. App.--Austin 1995, pet. ref'd). The statute must be upheld if a
reasonable construction can be ascertained that will render the statute
constitutional and carry out the legislative intent. Ely v. State, 582
S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979); Sisk, 74 S.W.3d at
901.
In construing whether a law is vague and
overbroad, we keep in mind the elementary principle of statutory construction:
we interpret a statute in accordance with the plain meaning of its language
unless the language is ambiguous or the plain meaning leads to absurd results. Sanchez
v. State, 995 S.W.2d 677, 683 (Tex. Crim. App.), cert. denied, 528
U.S. 1021 (1999); Boykin v. State, 818 S.W.2d 782, 785-86 & n.4
(Tex. Crim. App. 1991). In determining plain meaning, "[w]ords and phrases
shall be read in context and construed according to the rules of grammar and
common usage." Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998); Dowthitt
v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If we find resorting
to extratextual sources necessary under Boykin, these sources include
but are not necessarily limited to: (1) circumstances under which the statute
was enacted, (2) legislative history, (3) common law or former statutory
provisions, (4) consequences of a particular construction, and (5) the title
(caption), preamble, and emergency provision. Tex. Gov't Code Ann. § 311.023;
Tex. Penal Code Ann. § 1.05(b).
Appellant contends that the Texas child
pornography statute is overbroad, vague, and in violation of the First Amendment
because it draws no distinction between possession of actual child pornography
and pornography created by digital or computer imaging. In support of his
argument, appellant relies on Ashcroft v. Free Speech Coalition, 535
U.S. 235, 122 S. Ct. 1389 (2002). In Ashcroft, the United States
Supreme Court considered a challenge to the Child Pornography Prevention Act of
1996 (CPPA). The CPPA extended the federal prohibition of child pornography to
sexually explicit images that "appear to" depict minors engaging in
sexual conduct, but are produced without using any real children.
(2) Id. at 235, 122 S. Ct. at 1396. Because the statute
prohibited both protected and unprotected speech, the Court held that the
statute was unconstitutional to the extent that it regulated virtual images or
images that merely appeared to depict children engaged in sexual conduct. Id.
at 241, 122 S. Ct. at 1406. In so holding, however, the Court also observed that
"[t]he freedom of speech has its limits; it does not embrace certain
categories of speech, including defamation, incitement, obscenity, and
pornography produced with real children." Id. at 246, 122 S. Ct.
at 1399; Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd.,
502 U.S. 105, 127, 112 S. Ct. 501, 514 (1991) (Kennedy, J., concurring).
In this case, appellant was charged and
convicted under the Texas statute prohibiting possession of child pornography. See
Tex. Penal Code Ann. §§ 43.25, 43.26(a). In Texas, it is an offense to
knowingly or intentionally possess "visual material that visually depicts a
child younger than 18 years of age at the time the image of the child was made
who is engaging in sexual conduct" if the person "knows that the
material depicts the child" engaging in sexual conduct. Id. §
43.26(a). Unlike the CPPA, however, the plain language of the statute indicates
that it prohibits only possession of material that depicts an actual child, not
material that merely "appears" to depict a child. Id.; see
also State v. Anderson, 784 N.E.2d 196, 200 (Ohio Ct. App. 2003) (holding
that the language of the Ohio statute prohibits only images depicting actual
children and, thus, does not violate the First Amendment). The legislative
history of the statute also supports this conclusion. See Senate Comm.
on Criminal Justice, Bill Analysis, Tex. S.B. 674, 75th Leg., R.S.
(1997).
In 1997, the legislature amended the child
pornography statute to eliminate a loophole in the existing statute that impeded
prosecution of individuals for possession or promotion of child pornography
depicted or distributed by computer. Id.; House Comm. on Criminal
Jurisprudence, Bill Analysis, Tex. S.B. 674, 75th Leg., R.S. (1997).
There is nothing in these materials to suggest that the legislature intended to
prohibit anything other than pornography depicting actual children. Therefore,
we conclude that the Texas child pornography statute prohibits only the
possession of visual materials depicting real children.
Because the Texas statute only prohibits
pornography depicting actual children, the statute is not vague or overbroad. United
States v. Kelly, 314 F.3d 908, 912-13 (7th Cir. 2003)
(interpreting the holding in Ashcroft to only apply to virtual
pornography); United States v. Hersh, 297 F.3d 1233, 1254 n.31 (11th
Cir. 2002) (same); see also Fink v. State, 817 A.2d 781, 790 (Del.
2003) (same); Perry v. Commonwealth, 780 N.E.2d 53, 56 n.4 (Mass. 2002)
(stating that Ashcroft was not at issue because materials depicted
actual children). Further, because pornography produced with real children is
not a category of speech protected by the First Amendment, the statute's
prohibition of these materials does not violate the First Amendment. Ashcroft,
535 U.S. at 246, 122 S. Ct. at 1399; see also New York v. Ferber, 458
U.S. 747, 764, 102 S. Ct. 3348, 3358 (1982) (holding that pornography depicting
actual children can be prescribed whether or not the images are obscene because
of the State's interest in protecting the children exploited by the production
process); Savery v. State, 819 S.W.2d 837, 838 (Tex. Crim. App. 1991)
(holding that private possession of child pornography is not protected by the
First Amendment).
Appellant also contends that the statute
is unconstitutional because it places the burden on the defendant to show that
the parties actually depicted are not children. We disagree. The plain language
of section 43.26 clearly requires the State to prove that (1) the appellant
possessed visual material depicting a child under the age of eighteen engaging
in sexual conduct and (2) appellant knew that the material depicted a child
engaging in sexual conduct. Tex. Penal Code Ann. § 43.26. Although the
defendant may choose to counter the State's evidence with evidence that the
child depicted was eighteen years of age or older, the statute does not place
the burden on the defendant to prove the age of the child. That burden rests
with the State. Id. Therefore, we overrule appellant's sole point on
appeal.
Having overruled appellant's sole point,
we affirm the trial court's judgments.
JOHN CAYCE
CHIEF JUSTICE
PANEL A: CAYCE, C.J.; DAY and HOLMAN, JJ.
PUBLISH
DELIVERED: May 29, 2003
1. Appellant was sentenced on May 13, 2002. He did not
file his amended motion for new trial until July 5, 2002.
2. The CPPA prohibited images made using actual minors as
well as "any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture" that appeared
to be of a minor or "conveys the impression that the material is or
contains a visual depiction of a minor engaging in sexually explicit
conduct." 18 U.S.C.A. § 2256(8)(A), (B), (D) (West 2000).
| {
"pile_set_name": "FreeLaw"
} |
13 So.3d 468 (2009)
CRAISSATI
v.
CRAISSATI.
No. SC09-336.
Supreme Court of Florida.
June 22, 2009.
Decision without published opinion Review denied.
| {
"pile_set_name": "FreeLaw"
} |
40 B.R. 29 (1984)
In the Matter of the GREATER ATLANTA APARTMENT HUNTER'S GUIDE, INC., d/b/a Guide Publications, Ltd., Debtor.
Bankruptcy No. 83-04528A.
United States Bankruptcy Court, N.D. Georgia, Atlanta Division.
March 28, 1984.
James C. Bussart, Fraser & Bussart, Atlanta, Ga., for debtor.
John C. Pennington, Atlanta, Ga., for movant.
OPINION
WILLIAM L. NORTON, Jr., Bankruptcy Judge.
Debtor-corporation, The Greater Atlanta Apartment Hunter's Guide, Inc. ("Greater *30 Atlanta"), which had been placed in receivership by Fulton Superior Court on February 1, 1983, filed a voluntary Chapter 7 petition on October 7, 1983. The Board of Directors of Greater Atlanta had passed a corporate resolution on September 30, 1983, authorizing the bankruptcy filing. Marvin Nodvin ("Nodvin") a 50 percent shareholder, who originally had filed to place the corporation in receivership objected to the corporation's bankruptcy filing. On November 10, 1983, Nodvin filed the motion presently under consideration to dismiss the corporation's Chapter 7 petition. Nodvin bases his motion for dismissal on the following grounds: (1) as the corporation was in receivership, it could not file a voluntary bankruptcy petition; and, (2) the Board of Directors could not pass a legitimate corporate resolution as the Board was invalidly constituted. Because the court finds that there is no law which would prevent the corporation from filing a voluntary Chapter 7 petition while under a state court appointed receivership and because this court finds that under the Georgia Business Corporation Code the Board was validly constituted, the court denies Nodvin's motion to dismiss the Chapter 7 petition.
FINDINGS OF FACT
1. Sometime in November of 1981, attorney Marvin Nodvin ("Nodvin") and Edna Rasmussin ("Rasmussin") agreed to form a corporation to be known as the Greater Atlanta Apartment Hunter's Guide, Inc. ("Greater Atlanta");
2. Rasmussin and Nodvin were each 50 percent stockholders of the corporation;
3. Rasmussin was president of the corporation;
4. Nodvin was vice-president and secretary of the corporation;
5. Rasmussin and Nodvin constituted the entire Board of Directors;
6. The corporation commenced operation in March, 1982;
7. Although evidence revealed that outside counsel had drafted the Articles of Incorporation and the bylaws, the current location of the Articles of Incorporation and bylaws are in dispute, and neither have been introduced into evidence before this court;
8. Sometime in January of 1983, Nodvin alleged that assets of the corporation had been misappropriated;
9. Nodvin discussed the disappearance of the assets with Rasmussin and for several days thereafter Rasmussin could not be located and contacted;
10. On about January 17, 1983, Nodvin submitted his resignation as an officer and director of Greater Atlanta;
11. Nodvin attempted to call a stockholders meeting of the corporation for January 19, 1983;
12. Although Nodvin, Rasmussin, and Rasmussin's attorney met on January 19, 1983, no shareholder business was transacted at the meeting;
13. On about January 31, 1983, Rasmussin, the sole remaining Director of the corporation, appointed Kathleen Siriani ("Siriani") as a Director to fill the vacancy created by Nodvin's resignation;
14. At the same time Siriani was appointed secretary and treasurer of Greater Atlanta;
15. On about February 1, 1983, Nodvin applied to Fulton County Superior Court for the appointment of a receiver for Greater Atlanta;
16. On February 1, 1983, the Fulton County Superior Court Judge appointed a receiver for the corporation although the written order was not signed until February 4, 1983;
17. On about September 30, 1983, the Board of Directors composed of Rasmussin and Siriani met and unanimously approved a resolution authorizing Greater Atlanta to file a voluntary Chapter 7 petition;
18. On October 7, 1983, the debtor's voluntary Chapter 7 petition was filed;
19. No annual shareholders' meeting has been held since the debtor's incorporation;
*31 20. On November 10, 1983, Nodvin filed his motion to dismiss debtor's Chapter 7 petition;
21. A hearing on January 30 and 31, 1984, was held and post-hearing briefs were submitted.
DISCUSSION
A
Nodvin, a 50 percent shareholder in Greater Atlanta, has requested that this court dismiss the voluntary Chapter 7 petition filed by the corporation. Nodvin has argued that because the corporation was under a state court receivership the Board of Directors would have been without authority to file a Chapter 7 petition. Although this argument was urged at the January 30, 1984 hearing by Nodvin's counsel, it was not included in the brief filed with the court February 21, 1984. Nevertheless, the court addresses the argument briefly.
No statutory law or decisional law supporting Nodvin's position was cited at the January 30, 1984 hearing. Nor has the court found any. Perhaps this is because such argument runs so patently counter to the statutory right of a debtor to the privileges of the national uniform statute on bankruptcies and the inherent prohibition against any bar by other authority to the exercise of that right. This court holds that a state court receivership cannot operate to deny a corporate debtor access to this nation's federal Bankruptcy Courts. See discussion in Jordan v. Independent Energy Corporation, 446 F.Supp. 516, 525-30 (D.C.N.D.Tex.1978) ("Congress has enacted a uniform federal bankruptcy policy and has granted the Bankruptcy Courts power to fairly adjudicate and administrate disputes between debtors and creditors .... an order restricting access to the Bankruptcy Court, other than as specifically provided by Congress in the Bankruptcy Act, would not be in the public interest."); United States v. Royal Business Funds Corporation, 29 B.R. 777, 779 (D.C.S.D.N.Y.1983), aff'd, 724 F.2d 12 (CA2, 1983) ("The court [Jordan v. Independent Energy Corporation court] made it clear that those cases holding that the dependency of a state receivership cannot bar the filing of a federal bankruptcy petition rest upon the grant of exclusive bankruptcy jurisdiction to the federal courts and constitutional principles of supremacy ....")
B
Nodvin's second argument is more complicated. The allegation is that because of a failure to hold a shareholders' meeting and elect a new Board of Directors the Board of Directors acting on September 30, 1983 was not a validly constituted Board and could not authorize a valid resolution. The governing law in this matter is the Georgia Business Corporation Code. Analysis of the interrelationship between several sections within this Code demonstrates that Nodvin's contention does not properly apply the Georgia Business Corporation Code.
The starting point for analysis begins with whether the January 31, 1983 appointment of Siriani to the Board of Directors was a valid act. Pursuant to OCGA §§ 14-2-141(a) and 14-2-144(1), this court concludes that the appointment by Rasmussin, the sole remaining Director, was a lawful act.[1]
*32 The second point to observe is that Siriani was appointed to fill the vacancy left by Nodvin's resignation. Her appointment, then, was only for Nodvin's unexpired term as a Director. Under Georgia law, a Board of Directors is to be elected at its annual shareholders' meeting. OCGA § 14-2-112. Without the introduction of Greater Atlanta's bylaws as evidence of a contrary date, this court must look to OCGA § 14-2-112(b) to determine what date the shareholders meeting should have occurred. The Code section provides that "the annual meeting shall be held on the second Tuesday of the fourth month following the end of the fiscal year of the corporation ...". § 14-2-112(b). The end of Greater Atlanta's first fiscal year was February 28, 1983. Following § 14-2-112(b) the annual shareholders meeting should have occurred the second Tuesday of June, 1983. No shareholders meeting was held at that time. Nor was a shareholders' meeting held earlier although the court notes that Nodvin made an attempt to call a shareholders meeting on January 19, 1983, two days after his resignation as an officer and member of the Board of Directors.
Having been unsuccessful at calling a shareholders' meeting, Nodvin's next act was to file in Fulton County Superior Court for the appointment of a receiver over Greater Atlanta. This request was granted from the bench on February 1, 1983. In its Findings of Fact, the Superior Court noted among other things that Siriani had been appointed as an interim Director to fill the vacancy left by Nodvin's resignation. The Order entered by the Superior Court included a prohibition against any interference with the proper operation of the debtor-corporation and the appointment of a receiver who was to take charge and manage the business and assets of the corporation. The receiver was requested to make a preliminary report to the Superior Court in 10 days. Neither that interim report nor any other evidence as to what occurred under the receivership for the next eight months, before the corporation's filing of the voluntary Chapter 7 petition, has been submitted.
There is no clearly prescribed course of conduct for parties in the predicament which Greater Atlanta, Rasmussin, Nodvin, Siriani, and the receiver found themselves in after February 1, 1983. Greater Atlanta was not free to engage in business as usual because it was under a state court receivership. There appears to have been a shared belief, given voice at the January 30, 1984 bearing by Nodvin, that a shareholders' meeting would be valueless and unnecessary: "We had been enjoined from proceeding to do anything by the court. There was no reason to have a shareholders meeting .... The court enjoined us from proceeding in the conduct of the business. There was nothing to have a shareholders meeting about ..." (p. 27). Certainly, no shareholders' meeting was held after the receiver had been appointed.
Yet, the Georgia Business Corporation Code does not expressly state or imply that in the circumstances which developed after February 1983 the individuals who were members of the Board of Directors automatically lost their directorship. In fact, reading §§ 14-2-141(d), 14-2-112(b), and 14-2-285 together suggests that the Board as constituted on February 1, 1983, was viable when it authorized the filing of Greater Atlanta's Chapter 7 petition.
Section 14-2-141(d) provides:
At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting ... The Articles of Incorporation may provide for the election of one or more directors by the holders of the shares of any class or series. Each director shall hold office for the term for which he is elected and until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death.
Under this statute, then, a director holds office for the term for which he is elected and until his successor shall have been elected and qualified. According to the *33 statute that term should be no longer than a year. Under the instant circumstances, there was, in fact, no shareholder election and consequently no elected and qualified successors either for Rasmussin's or Siriani's directorship.
If Rasmussin and Siriani had somehow ceased to be Greater Atlanta directors due to the failure to hold a shareholders' election, the corporation would have been entirely without corporate directors. The Georgia Code does not contemplate a corporation under this set of circumstances. Rather than accept a directorless entity Georgia law provides alternatives to prevent the elimination of corporate directors before new ones have been elected and qualified. Thus, a shareholder unhappy with corporate directors has the opportunity to try to institute changes. He may choose to follow the procedure set forth in § 14-2-112(b):
If the corporation shall fail or refuse to hold the annual meeting on (1) the date provided therefor pursuant to the bylaws, or (2) in the absence of such designation, the date provided in this Code section and shall thereafter also fail or refuse to hold the annual meeting within 60 days after being requested by any shareholder to do so, the Superior Court of the county where the registered office of the corporation is located may, after notice to the corporation, order a substitute annual meeting to be held upon the application of such shareholder. The Superior Court may issue such orders as may be appropriate, including, without limitation, orders designating the time and place of such meeting, the record date for determination of shareholders entitled to vote, and the form of notice of such meeting.
Nodvin failed to pursue this legal avenue for remedying the failure to elect a new Board of Directors at a shareholders' meeting. Nor does the general belief that a shareholders' meeting was unnecessary after February 1, 1983 excuse his inaction. Nodvin knew after February 1, 1983 how the Board of Directors was constituted and that the Board did not represent his shareholder interest. He had a period of eight months to challenge the composition of the Board of Directors. Under the legal procedures set forth in § 14-2-112(b) he could have required the election of a new Board. Having failed to follow the remedy provided by the State legislature, this court does not favor Nodvin's attempt to undermine the corporate decision to file a Chapter 7 petition when such filing does not violate the law.
The language of § 14-2-112(b) gives additional support to the decision to deny Nodvin's motion: "failure to hold the annual meeting shall not work a forfeiture or give cause for dissolution of the corporation, except as provided in Code § 14-2-285 in case of deadlock among directors or shareholders, nor shall such failure affect otherwise valid corporate acts." If Nodvin had wanted to nullify the express terms of § 14-2-112(b) which otherwise appears to validate the corporate resolution of September 30, 1983, Nodvin could have tried to invoke § 14-2-285[2] in Superior Court. According *34 to the record before this court, the Superior Court based no part of its written Order of February 4, 1983 on this statutory section.
Certainly, the allegations Nodvin made at the time he requested the appointment of a state court receiver would have been governed by § 14-2-285(a)(1). Such allegations as Nodvin made, however, must be "established" before the superior court has the "power to liquidate the assets and business of a corporation." No evidence has been introduced before this court to suggest that Nodvin's allegations regarding the illegal or fraudulent acts or the misapplication or waste of corporate assets were ever so "established." OCGA § 14-2-285(a)(1)(B) and (D).
Additionally, subsections (a)(1)(A) and (a)(1)(C) are especially important in view of the specific circumstances. Either no effort was made to convince the superior court that the shareholder deadlock was threatening irreparable injury to the corporation and the appointment of a provisional director was impracticable or the effort failed to convince the superior court judge. Under either premise, Nodvin did not successfully invoke § 14-2-285(a)(1)(A). Section 14-2-285(a)(1)(C) provides another clear indication that the state lawmaking authority envisioned circumstances in which directors whose terms should have expired might still function as the corporation's directors. On this point, the legislature made a policy decision to limit the length of time such circumstances would be tolerated. If the duration "includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors" the superior court has the authority to liquidate the assets and business of a corporation. In the instant circumstances, Nodvin could not meet the test under § 14-2-285(a)(1)(C) because two consecutive annual meeting dates had not passed at the time the incumbent Board of Directors authorized Greater Atlanta's bankruptcy filing.
For the reasons set forth above, this court finds that the resolution passed by the Board of Directors of Greater Atlanta authorizing the corporation to file a voluntary Chapter 7 petition to have been a lawful act by a lawfully constituted board. Movant's motion to dismiss the corporation's Chapter 7 case is denied.
NOTES
[1] OCGA § 14-2-141 Same [Directors]Number; terms; selection
(a) The number of directors of a corporation shall not be less than three, except that if all the shares of a corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number or shareholders .... (Emphasis supplied.)
OCGA § 14-2-144 Same [Directors]Vacancies
Unless the Articles of Incorporation or bylaws otherwise provide:
(1) Except as provided in paragraphs (2) and (3) of this Code section, any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors, or by the sole remaining Directors, as the case may be, or, if the vacancy is not so filled or if no Director remains, by the shareholders.... (Emphasis supplied.)
[2] Georgia Business Corporation Code § 14-2-285. Liquidation of corporate assets and affairs Jurisdiction of superior courts; venue; parties.
(a) The superior courts shall have full power to liquidate the assets and business of a corporation:
(1) In an action by a shareholder when it is established:
(A) That the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock, that irreparable injury to the corporation is being suffered or is threatened by reason thereof, and that is impracticable for the court to appoint a provisional director as provided in Code Section 14-2-142 or to continue one in office;
(B) That the acts of the directors or those in control of the corporation are illegal or fraudulent;
(C) That the shareholders are deadlocked in voting power and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors; or
(D) That the corporate assets are being misapplied or wasted;
| {
"pile_set_name": "FreeLaw"
} |
500 S.E.2d 7 (1998)
231 Ga. App. 579
HEINSIMER
v.
WELLINGTON LEISURE PRODUCTS, INC.
No. A98A0132.
Court of Appeals of Georgia.
March 11, 1998.
Reconsideration Denied March 25, 1998.
*8 Strauss & Walker, John T. Strauss, Covington, for appellant.
Long, Aldridge & Norman, Barry J. Armstrong, Phillip A. Bradley, Atlanta, Lambros & Lambros, Michael G. Lambros, Alexander & Royston, James B. Alexander, Covington, for appellee.
JOHNSON, Judge.
This case arises from a complex agreement entered into between Wellington Leisure Products, Inc. ("Wellington"), Peter Heinsimer and Daniel Estreich. The record shows that in 1982, Wellington, Heinsimer and Estreich entered into an agreement whereby Heinsimer and Estreich were to market and sell craft products manufactured by Wellington. The proceeds of the sale of the craft products were collected by a company called Maxwell International of Delaware, Inc. ("Maxwell"), which was owned 50 percent by Wellington and 25 percent each by Heinsimer and Estreich. After paying certain expenses, Maxwell paid the remainder to Wellington and an Estreich & Heinsimer partnership, with each receiving 50 percent. The parties continued under this arrangement until 1989, when the IRS audited Maxwell and characterized the payments to the parties as non-deductible dividends, rather than deductible commissions, as Maxwell claimed in its tax returns. Since using Maxwell as a corporate vehicle to implement the joint venture would double their tax liability, the Estreich & Heinsimer partnership began receiving commissions directly from Wellington.
In a written agreement dated November 22, 1993, Heinsimer agreed to repay Wellington for the tax settlement in installment payments that were to begin in July 1994. Two days before his first payment was due, Heinsimer informed Wellington and others by letter that he wanted to sell his interest in the business and "move on." The letter further stated that Heinsimer and Estreich "have come to the conclusion that it will be impossible to resolve [their] differences in a productive mutually satisfactory way" and that Estreich "started the business over twenty years ago and has a greater desire to continue with it." After viewing a draft of this letter, Estreich made at least one change to make it clear that Heinsimer, and not Estreich, was interested in withdrawing from the agreement and moving on. Heinsimer contends his letter was not meant to be a withdrawal from the agreement with Wellington.
In response to Heinsimer's letter, Frank Carter, the President of Wellington, stopped payment on Estreich & Heinsimer's advance commission check for the first month of the new fiscal year. Carter testified that he wanted to determine the status of the relationship between Heinsimer, Estreich and Wellington prior to advancing any more money to the Estreich & Heinsimer partnership. He was particularly concerned because Heinsimer's letter indicated that Heinsimer and Estreich had been having problems for some time and there was not enough money to support the partnership. Prior to the letter he was unaware of any dispute between the two partners. A notice of the stop payment was sent to the offices of the Estreich & Heinsimer partnership.
Following Heinsimer's announcement that he wanted to "move on" and receipt of the notice stopping payment on the check to the partnership, Estreich wrote a letter to Heinsimer resigning from their partnership. It is undisputed that Wellington officers and employees had no involvement in the termination *9 of the Estreich & Heinsimer partnership and did not know of Estreich's resignation until they received a copy of the letter. Carter testified that the dissolution of the Estreich & Heinsimer partnership concerned him because the partnership was a party to the agreement with Wellington and all commission payments were made by Wellington to the partnership.
Carter and Estreich began negotiations for an agreement whereby Estreich would continue marketing and selling Wellington's products. The undisputed testimony is that no discussions took place between Wellington and Estreich until after Heinsimer indicated his intention to "move on" and Estreich resigned from the partnership. Wellington made its first offer to Estreich on July 5, 1994, and, after receiving Estreich's reply on July 7, 1994, modified its offer to include terms agreeable to Estreich. An agreement was entered into on July 11, 1994, but was dated July 1, 1994, as that was the beginning of the new fiscal year. Other than receiving a letter from Estreich on July 8, 1994, indicating Estreich was accepting an offer from Wellington, Heinsimer did not speak with Estreich regarding Estreich's negotiations or agreement with Wellington.
Wellington filed suit against Heinsimer and Estreich to recover unearned commissions advanced to Heinsimer and Estreich and for breach of promise to repay the funds loaned by Wellington to pay for the tax settlement. The complaint alleged five counts: (1) money had and received, (2) breach of promise to pay, (3) assumpsit, (4) breach of contract, and (5) bad faith. The claims against Estreich were dismissed when Estreich agreed to pay the amounts due. Heinsimer answered and asserted six counterclaims against Wellington: (1) breach of fiduciary duties, (2) "wrongful dissolution of joint venture," (3) accounting of commissions and profits, (4) and (5) contribution and indemnification from Estreich, and (6) "breach of majority stockholder's duty of fair and equitable treatment of minority shareholders."
Wellington moved for summary judgment on Counts 1 and 2 of its five-count complaint against Heinsimer and on Counts 1, 2 and 6 of Heinsimer's counterclaim against it. The trial court denied Wellington's motion for summary judgment as to Count 1 of its complaint, involving money had and received, granted Wellington's motion for summary judgment as to Count 2 of its complaint, involving the breach of promise to pay, and granted Wellington's motion for summary judgment as to Counts 1, 2 and 6 of Heinsimer's counterclaim, involving breach of fiduciary duty, wrongful dissolution of joint venture and breach of majority stockholder's duty of fair and equitable treatment of minority shareholders. Heinsimer only appeals the grant of summary judgment on his counterclaims for "wrongful dissolution of joint venture" and "breach of majority stockholder's duty of fair and equitable treatment of minority shareholders." For the reasons discussed below, we affirm.
Summary judgment is appropriate when the court, viewing all evidence and drawing all inferences in a light most favorable for the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Id.
1. Heinsimer argues the trial court erred in granting Wellington's motion for summary judgment on his counterclaim for "wrongful dissolution of a joint venture." He alleges Wellington and Estreich conspired to "freeze him out" of the joint venture to sell Wellington products. However, Heinsimer cites no evidence proving that Wellington and Estreich conspired to exclude him from the venture, but rather offers inferences from circumstantial evidence, which he contends the jury could believe and, therefore, *10 find in his favor. It is well-established that "[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility." (Citation and punctuation omitted.) Green v. Sams, 209 Ga.App. 491, 498(1), 433 S.E.2d 678 (1993). Moreover, in determining whether to grant a motion for summary judgment, a finding of fact which may be inferred, but is not demanded, by circumstantial evidence has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred exist. See Beeson v. Crouch, 227 Ga.App. 578, 580(1), 490 S.E.2d 118 (1997). Although all evidence adduced on motion for summary judgment, including the testimony of Heinsimer, must be construed against Wellington, the testimony of either party is to be most strongly against him where it is self-contradictory, vague or equivocal. Id.
Even accepting Heinsimer's version that his letter was not meant to be a termination letter but was merely a letter notifying Wellington of his desire to sell his stock and leave the joint venture in the future, Heinsimer's letter precipitated Estreich's withdrawal from the Estreich & Heinsimer partnership. Dissolution of the Estreich & Heinsimer partnership directly affected the joint venture because the partnership was a party to the agreement with Wellington and all commission payments were made by Wellington to the partnership.
Contrary to Heinsimer's claim that he was frozen out, the undisputed evidence is that after the dissolution of the Estreich & Heinsimer partnership, Wellington offered Heinsimer the same terms to continue marketing its products as those offered to Estreich, but Heinsimer refused the offer. Furthermore, there is no evidence indicating that Wellington officers and employees had any involvement in the termination of the Estreich & Heinsimer partnership or had any knowledge of Estreich's letter until they received a copy. The undisputed evidence further shows that no discussions took place between Wellington and Estreich until after Heinsimer indicated his intention to "move on" and Estreich subsequently resigned from the partnership.
Heinsimer fails to point to any evidence showing that Wellington and Estreich conspired to exclude him from the joint venture. His attempt to draw negative inferences from documents and actions when undisputed evidence shows these inferences were incorrect does not create material issues of fact. The trial court did not err in granting Wellington's motion for summary judgment as to this count of Heinsimer's counterclaim.
2. Heinsimer also alleges the trial court erred in granting Wellington's motion for summary judgment as to his counterclaim that Wellington "breached its duties of fair and equitable treatment of a minority shareholder." Again, this claim is based on Heinsimer's assertion that Wellington, a majority stockholder in Maxwell, breached its duty of fair and equitable treatment to Heinsimer, a minority stockholder, by freezing Maxwell out of the joint venture and by competing with Maxwell. It should be noted that the trial court's order on this particular issue does not preclude Heinsimer from seeking a fair and equitable price for his Maxwell stock.
Even if Wellington can be deemed a majority shareholder with only a 50 percent interest in Maxwell, which we need not determine for purposes of resolving this enumeration of error, Heinsimer failed to introduce any evidence that he was not given fair and equitable treatment. As discussed in Division 1, it is undisputed that Estreich resigned from the Estreich & Heinsimer partnership without the direction or prior knowledge of Wellington. Because the partnership was a party to the joint venture and Wellington paid Estreich and Heinsimer through the partnership, Wellington negotiated a new agreement with Estreich to insure that Estreich would continue selling Wellington products. Heinsimer was offered the same deal, but refused it. The trial court did not err in granting Wellington's motion for summary judgment regarding this count of Heinsimer's counterclaim.
Judgment affirmed.
BIRDSONG, P.J., and SMITH, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
953 F.2d 1386
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.David Raymond DURHAM, Petitioner-Appellant,v.Carl ZENON, Respondent-Appellee.
No. 91-35312.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 6, 1992.Decided Jan. 29, 1992.As Amended on Denial of RehearingMay 13, 1992.
1
Before JAMES R. BROWNING, D.W. NELSON and CANBY, Circuit Judges
2
MEMORANDUM*
3
David Durham petitioned for habeas corpus under 28 U.S.C. § 2254, seeking relief from his convictions in Oregon state court for murder, menacing, burglary, and possession of a firearm by a convicted felon. Durham was denied post-conviction relief by Oregon's state courts. Durham v. Peterson, 92 Or.App. 591, 760 P.2d 904 (Or.Ct.App.) (affirmance without opinion), review denied, 307 Or. 77, 763 P.2d 731 (1988). The district court denied relief and dismissed the petition without an evidentiary hearing. We affirm.
DISCUSSION
4
We review de novo the district court's decision to deny Durham's petition for habeas corpus. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989). To alter or ignore a factual finding made by the state post-conviction court, we must conclude that Durham has established by convincing evidence that the state court's finding was erroneous. Tamayo-Reyes v. Keeney, 926 F.2d 1492, 1502 (9th Cir.), cert. granted, 112 S.Ct. 48 (1991); 28 U.S.C. § 2254(d).
Self-Representation
5
Durham contends that the state trial court wrongfully denied him an opportunity to represent himself at trial. Durham was represented at trial by appointed counsel. Durham was required to assert his right to self-representation unequivocally. Adams v. Carroll, 875 F.2d 1441, 1442 (9th Cir.1989). The district court reviewed the state trial transcript and post-conviction findings and concluded that Durham never requested permission to serve as his own counsel. The state post-conviction trial judge, after an evidentiary hearing, found that Durham had requested to act as co-counsel. Contrary to Durham's contention, his claim of denial of self-representation received a full and fair hearing in the state post-conviction court. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963). The state court clearly entertained Durham's argument; its finding of a request to act as co-counsel was a sufficient rejection of Durham's clearly asserted self-representation claim. See id. at 314. The state court record, therefore, fully supports the district court's ruling.
6
By concluding that Durham never requested permission to serve as his own counsel, the district court necessarily rejected Durham's assertion that he moved, before trial in an unreported conference in chambers, to serve as his own counsel. Durham has failed to show that the district court's finding is clearly erroneous. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989) (review factual findings for clear error). The state court record strongly suggests that no such extra-record motion for self-representation was made. The first colloquy of record, presumably occurring immediately after any extra-record discussion, began with Durham's counsel reporting to the court that Durham had asked him to request that Durham "be allowed to act as co-counsel on this matter," and that he would "pose this matter to the court." Later in the same colloquy, Durham himself stated that "since the beginning" he had asked for an attorney from outside the county because of a connection between his in-laws and the sheriff's and prosecutor's offices. He then said that, for the same reason, he had asked for a change of venue, and his attorney had not spoken to him about it. Durham concluded: "This is why I feel I should represent myself as co-counsel."
7
This entire colloquy is utterly inconsistent with any desire by Durham to conduct his entire case by himself, and it strongly suggests that there had been no discussion of self-representation off the record. Later references by court and counsel to Durham's request to act as his own attorney, viewed in context, refer to Durham's request to act as co-counsel. We conclude that Durham has not demonstrated that the district court clearly erred in finding that he never unequivocally asserted his right to represent himself.
Request to Serve as Co-Counsel
8
The trial court twice denied Durham's motions to serve as co-counsel along with his appointed trial counsel. Durham was not entitled to claim an absolute right to both self-representation and the assistance of counsel at trial. United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981). The trial judge's denials of Durham's motions were within the judge's discretion. Id. The district court properly refused to grant relief on this ground.
Ineffective Assistance of Counsel
9
Durham first argues that there was ineffective assistance of counsel because of a complete communications breakdown or irreconcilable differences between himself and his counsel. See, e.g., United States v. Williams, 594 F.2d 1258, 1259-61 (9th Cir.1979); see generally United States v. Cronic, 466 U.S. 648, 658-60 (1984). The district court considered the record, as well as the findings of fact of the state post-conviction court, and found that there were neither irreconcilable differences between Durham and his counsel nor a complete breakdown of communication between Durham and his counsel. Durham has made no showing sufficient to call into question these determinations of the state courts. See 28 U.S.C. § 2254(d) (the findings of the state post-conviction review court are presumed to be correct).
10
Durham contends that, even if there was no breakdown of communications, his attorney provided ineffective assistance of counsel in the conduct of his trial. To succeed in this contention, Durham must demonstrate both that his trial counsel's performance was outside the range of reasonably competent professional conduct, Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Durham fails to meet this standard with regard to all of the purported errors or omissions that he asserts here.
11
First, the post-conviction court found, and the district court agreed, that Durham's trial counsel adequately cross-examined Shirley Ramer on the discrepancies between her earlier statements to police, the police reports and photographs, and her trial testimony. To argue the discrepancies to the jury, therefore, would have merely highlighted an unsuccessful effort to undermine Ramer's direct testimony. Giving the post-conviction court's finding the requisite presumption of correctness, we agree with the district court that the cross-examination of Shirley Ramer and the final argument were within the range of professional competent assistance.
12
Second, counsel was not deficient in failing to introduce a letter that Durham received from the police stating that they had received no calls regarding threats by Durham. The letter was clearly inadmissible hearsay. Also hearsay is the purported letter from the victim supposedly refuting testimony that Durham and the victim were not getting along; in addition to the letter's being hearsay, counsel had reason to doubt its authenticity. For the same two reasons, it was within the range of competence for counsel to refuse to offer in evidence a letter purportedly written by the manufacturer of the weapon, to prove that the weapon was not involved in the murder. The state post-conviction court found that Durham's counsel offered all the exculpatory evidence in his possession into evidence. The district court agreed, relying in part on the averment of Durham's counsel that he did not offer the cited documents because they were either inadmissible hearsay or tended to inculpate Durham. We conclude that each of the judgments made by Durham's trial counsel regarding these documents was reasonable and well within the range of professional competent assistance.
13
There was no prejudicial failure of effective counsel in not calling out-of-state witnesses, including Durham's mother, who was apparently to serve as a character witness. The post-conviction court found that Durham's counsel presented all of the material witnesses. The district court concluded that Durham had not demonstrated that, but for the failure to call the uncalled witnesses, the outcome of the proceeding would have been different. We agree; moreover, the unwillingness of Durham's counsel to open up Durham's character to attack by presenting a character witness is certainly consistent with professional competence.
14
Finally, we agree with the district court that counsel was not ineffective in his cross-examination of Don Hendricks, who identified Durham at trial, regarding Hendricks' failure previously to select a photograph of Durham from an array provided by the police. Moreover, even if Durham's assertion regarding his counsel's cross-examination of Hendricks is correct, Durham has not made an adequate showing of prejudice to require granting his petition.
15
In sum, we conclude that the district court properly refused to grant Durham's petition on grounds of ineffective assistance of counsel.
CONCLUSION
16
Durham has also asserted that the state court committed various errors, and that his counsel was ineffective, during the state post-conviction hearing. We have reviewed those contentions in the light of the record and find them to be without merit. The judgment of the district court dismissing Durham's petition is
17
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
| {
"pile_set_name": "FreeLaw"
} |
626 F.2d 43
23 Fair Empl.Prac.Cas. 124,23 Empl. Prac. Dec. P 31,031Roger M. REEB, Appellant,v.Ray MARSHALL, Secretary, United States Department of Labor, Appellee.
No. 79-1829.
United States Court of Appeals,Eighth Circuit.
Submitted May 20, 1980.Decided June 19, 1980.
John R. Myer, Atlanta, Ga., argued, for appellant; Lee V. Swinton, Kansas City, Mo., on brief.
J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., argued, for appellee; Ronald S. Reed, U. S. Atty., and John A. Weiss, Atty., U. S. Dept. of Labor, Kansas City, Mo., on brief.
Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.
HEANEY, Circuit Judge.
1
Appellant Roger M. Reeb complains of her discharge from her position with the United States Department of Labor Regional Office in Kansas City, Missouri, alleging that she has been the victim of sex-based discrimination. After exhausting her administrative remedies, Reeb brought this action, claiming a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Reeb appeals from the district court judgment in favor of the defendant.
2
On June 25, 1972, appellant Reeb was appointed to the position of Social Science Advisor, GS-13, serving as Regional Director of the Women's Bureau of the Employment Standards Administration, Region VII. The position was a new one, involving travel to conferences and meetings around the four-state Region VII area for the purpose of informing Department of Labor personnel and the general public about various laws and programs affecting the rights of working women. Almost from the start, a strained relationship developed between Reeb and her immediate supervisor, Assistant Regional Director Doyle Loveridge. Loveridge has claimed, among other things, that Reeb was disorganized and unwilling to follow directions, and Reeb has claimed that she was harassed by Loveridge because she did not fit his stereotypic model of a professional woman.
3
The dispute between Reeb and Loveridge finally culminated, on November 17, 1972, in Loveridge presenting Reeb with the following memorandum:1
4
I have advised and counseled you on several occasions that there were various aspects of your performance and work attitude that required correction. On our meeting on September 29, 1972, you were advised that you were deficient in work planning and organization. You were also advised that you failed to respond to instructions and frequently exercised poor judgment in dealing with Department of Labor employees and outside groups. You were advised that except for your secretary, instructions and orders were not to be given to other Regional Office personnel. You were further advised at that time that unless there were improvements, you would not be retained in your position.
5
Improvements in the above areas have been minor and, in fact, there has been some deterioration in certain areas. You continue to fail to advise me of your activities, submit required reports on time, perform work at your residence without prior approval, fail to clear speech material with me contrary to instructions, and conduct press interviews without prior approval, also contrary to specific instructions. Your working relationship with other ESA personnel is poor. All of these items seriously impair the satisfactory execution of the Women's Bureau and ESA mission to such an extent that your removal from office becomes necessary.
6
I am taking the necessary action to separate you from the Employment Standards Administration effective c. o. b. December 1, 1972.
7
The formal written termination notice, form SF-50, gave the following reasons for Reeb's discharge:
8
Deficient in work planning and organization. Failure to keep supervisor advised of activities; to clear speech material prior to presentation; and conduct press interviews without prior approval, which is contrary to specific instructions.
9
Following her discharge, Reeb filed a written notice of complaint alleging that she had been discriminated against because of her gender. Upon being notified that an initial investigation by a Department of Labor representative failed to substantiate her claim, Reeb requested and received a hearing before an Equal Employment Opportunity Complaint Examiner. Pursuant to the examiner's recommendation, the Department of Labor issued a formal decision that Reeb's termination was not due to sex discrimination. Reeb appealed to the Civil Service Commission Board of Appeals and Review, and the Board affirmed the Department of Labor decision. Having thus exhausted her administrative remedies, Reeb brought this action in federal district court, claiming a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. After a trial, the district court concluded that Reeb had failed to prove a prima facie case of sex-based discrimination and entered judgment in favor of the defendants. Reeb appeals, asserting that the district court erred in determining that the decision to terminate was based solely on nondiscriminatory grounds.
10
Because Reeb was a probationary employee, the only issue before the administrative tribunals and the district court was whether sex-based discrimination had occurred. In the absence of such discrimination, the reasons for discharge were not and are not reviewable.
11
In determining whether discrimination has occurred, the "Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.' " Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Once this prima facie case has been established, the burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824.
12
As noted, the district court determined that Reeb was not the victim of sex-based discrimination, holding that she had failed to make the requisite prima facie showing. We need not decide, however, whether this finding was clearly erroneous. We are convinced that even if Reeb has made out a prima facie case by showing that no professional woman had previously been hired in Region VII at a GS-13 level, the appellee has successfully rebutted the inference that her discharge was due to sex-based discrimination. We have carefully reviewed the record and are satisfied that the reasons given by the appellee for Reeb's discharge are supported by the evidence presented both at trial and in the administrative hearing.
13
Reeb asserts, however, that the reasons given for her discharge were merely pretextual. She maintains that the real reason was her failure to conform to her supervisor's stereotype of a professional woman a docile, unaggressive female.
14
If it were true that Reeb was discharged because she did not behave as her supervisor believed a woman should, Reeb's claim of discrimination would be established and we would be required to reverse. The fact that a woman was hired to replace Reeb would not obviate that result.
15
On the basis of the record before us, however, we think it clear that the reasons for discharge articulated by the appellee and considered by the district court, particularly her tardy arrivals at work and her late and inadequate reports, were sufficient to justify Reeb's termination from her probationary position. The district court did not clearly err in concluding that sex-based discrimination played no role in Reeb's discharge. Accordingly, we affirm.
1
Although the memorandum was dated November 17 , 1972, and was shown to Reeb on that date, Loveridge agreed to delay formal delivery in order not to jeopardize Reeb's chances with other employment applications she had pending at that time. The memorandum was actually delivered to Reeb on November 28, 1972
| {
"pile_set_name": "FreeLaw"
} |
949 P.2d 865 (1997)
In the Matter of the Worker's Compensation Claim of Howard O. HAAGENSEN, Appellant (Petitioner/Claimant),
v.
STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent/Objector).
No. 96-133.
Supreme Court of Wyoming.
December 4, 1997.
*866 J. Stan Wolfe, Gillette, for Appellant.
William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Jennifer A. Evans, Assistant Attorney General, Cheyenne, for Appellee.
Before TAYLOR, C.J., and THOMAS, MACY, and LEHMAN, JJ., and HANSCUM, D.J.(Ret.)
TAYLOR, Chief Justice.
The sole issue presented is whether the finding of the hearing examiner that Howard O. Haagensen sustained injuries "arising out of and in the course of employment" as required by Wyo. Stat. § 27-14-102(a)(xi) (Cum.Supp.1995) is supported by substantial evidence. The finding is controverted since Mr. Haagensen fell in the parking lot of his employer, Nelson's Oil and Gas, two and one-half to three hours after ending his work shift. We agree with the district court's finding that Mr. Haagensen's injury did not occur in the course of his employment and, therefore, affirm the district court's order reversing and remanding the case to the Office of Administrative Hearings.
I. ISSUES
Appellant, Howard O. Haagensen (Haagensen), states the issues as follows:
A. Was there substantial evidence to support the Hearing Examiner's Award of Benefits to the Employee/Claimant for Workers' Compensation Benefits?
B. Did the District Court err in reversing the Hearing Examiner's determination, finding the Appellant was not injured in the course of employment, thus denying benefits in this matter?
Appellee, State ex rel. Wyoming Workers' Compensation Division (Division), states the issue as:
A. Whether the Office of Administrative Hearings Findings of Fact, Conclusions of Law And Order awarding workers' compensation benefits for an injury which occurred two and one-half to three hours after the end of the injured employee's work shift is supported by substantial evidence and in accordance with law.
II. FACTS
Haagensen was an employee of Nelson's Oil and Gas, a Conoco gas station and convenience store in Sundance, Wyoming, where he performed duties as a clerk and cook. On June 29, 1995, Haagensen's shift began at 2:00 p.m. and ended shortly after midnight when he clocked out. Haagensen usually remained on the premises of his employer after clocking out for a period of fifteen minutes to one hour to rest his legs, which often hurt following a shift, and to visit with a clerk on duty and a co-worker. On June 30, 1995, Haagensen remained on the premises for two and one-half to three hours, sitting in a booth, drinking coffee and visiting with another off-duty co-worker and the night clerk.
Between 2:30 a.m. and 3:00 a.m., Haagensen left the gas station through the rear door as he usually did. Approximately four feet from the back door, he tripped over a stack of wood left by construction workers hired by Nelson's Oil and Gas causing him to fall to the ground. As a result of the fall, Haagensen sustained a rotator cuff injury to his right shoulder for which he seeks worker's compensation benefits.
The Division denied benefits on the basis that Haagensen's injury did not occur in the scope of his employment as required by Wyo. Stat. § 27-14-102(a)(xi). Following an evidentiary hearing on Haagensen's appeal, the hearing examiner found the injury "ar[ose] out of and in the course of his employment" and awarded benefits, stating:
35. Given that the employee here did nothing out of the ordinary while resting *867 and visiting at the work place, the hazard did not change during his lengthy interlude before leaving, the visiting and drinking coffee was helpful to employee morale, the employer never objected to these late visits, and the employer had no rule or policy about leaving after shift changes, the mere extension of time from that held to be "a reasonable time" in other opinions is not enough to rebut the presumption that the employee was injured while leaving work on the employer's premises.
On the Division's appeal for judicial review, the district court found Haagensen was not in the course of his employment when the injury occurred and his claim was not compensable. Haagensen appeals from the Order Upon Petition for Judicial Review.
III. STANDARD OF REVIEW
This court's review of administrative action or inaction is confined to the record and is limited by W.R.A.P. 12.09(a) to those matters specified in Wyo. Stat. § 16-3-114(c) (1997), which provides the reviewing court shall:
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
* * * * * *
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
We do not afford deference to the reviewing court's findings, but we do, however,
afford respect and deference to an administrative agency's findings of fact if they are supported by substantial evidence. Aanenson v. State ex rel. Wyoming Workers' Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992) (quoting State ex rel. Wyoming Workers' Compensation Div. v. White, 837 P.2d 1095, 1098 (Wyo.1992)). "Substantial evidence" is a term of art, best described as "relevant evidence that a reasonable mind can accept as adequate to support an agency's conclusion." Casper Oil Co. v. Evenson, 888 P.2d 221, 224 (Wyo.1995). Further, we consider only that evidence favoring the party prevailing below, leaving out of consideration conflicting evidence. Wyoming Steel and Fab, Inc. v. Robles, 882 P.2d 873, 876 (Wyo. 1994) (quoting Matter of Injury to Carpenter, 736 P.2d 311, 312 (Wyo.1987)). * * * Unlike its findings of fact, however, an administrative agency's conclusions of law are afforded no special deference, and will be affirmed only if truly in accord with the law. Matter of Cordova, 882 P.2d 880, 882 (Wyo.1994). See also Wyo. Stat. § 16-3-114(c).
Coleman v. State ex rel. Wyoming Workers' Compensation Div., 915 P.2d 595, 598 (Wyo. 1996) (emphasis added).
IV. DISCUSSION
The Wyoming Workers' Compensation Act provides compensation for work-related injuries as defined in Wyo. Stat. § 27-14-102(a)(xi):
"Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. * * *
(Emphasis added.)
The requirement that the injury "aris[e] out of and in the course of employment" is premised upon a determination whether the relationship between the injury and the employment is sufficient that the injury should be compensable. A causal connection exists between the employee's injury and the course of employment when "`there is a nexus between the injury and some condition, activity, environment or requirement of the employment.'" Stuckey v. State ex rel. Wyoming Workers' Compensation Div., 890 P.2d 1097, 1098 (Wyo.1995) (quoting Bearden v. *868 State ex rel. Wyoming Workers' Compensation Div., 868 P.2d 268, 270 (Wyo.1994)).
The general rule for an injury arising in the course of employment is set out in 1 Arthur Larson, Workers' Compensation Law § 14 (1997):
An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.
Normally, an injury sustained outside the hours of employment are not compensable, but Haagensen points to our seminal cases where we adopted the premises rule. Archuleta v. Carbon County School Dist. No. 1, 787 P.2d 91 (Wyo.1990); State ex rel. Wyoming Workers' Compensation Div. v. Miller, 787 P.2d 89 (Wyo.1990). In Archuleta, we defined the premises rule and discussed its application to periods immediately before and after work:
"As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, * * *." 1 A. Larson, The Law of Workmen's Compensation § 15.00 at p. 4-3 (1989). * * *
* * * * * *
We noted in Corean [Matter of Injury to Corean, 723 P.2d 58 (Wyo.1986)] that on-premises accidents are, indeed, most often causally connected to employment, thereby suggesting that a presumption created by rule might have considerable validity, albeit not the conclusive validity argued for in Corean. A trend toward adoption of a premises rule, insofar as it creates a rebuttable presumption of causal connection, has been foreshadowed by a number of our prior decisions. * * * It is a logical progression now to extend that proposition to such necessary incidents of the employee's service as punching a time clock or entering and leaving the employer's premises during those periods immediately before and after work. Indeed, we have previously upheld a worker's compensation claim for an injury arising from a dangerous condition on the employer's premises even though the claimant, at the time of the injury, had completed his daily shift and had finished filling out his time card. Claim of Carey, 74 Wyo. 37, 283 P.2d 1005 (1955). * * *
* * * Accordingly, we hold that where the elements of the premises rule, as set forth above, have been established, a rebuttable presumption arises that the employee's injury is causally connected to his employment.
Archuleta, 787 P.2d at 93-94 (emphasis added).
2 Arthur Larson, Workers' Compensation Law, supra, at § 21.60(a) discusses what constitutes a reasonable time interval before and after work and the preparatory and incidental acts that occur:
The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts. The rule is not confined to activities that are necessary; it is sufficient if they can be said to be reasonably incidental to the work. What constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee's activity.
(Emphasis added and footnotes omitted.)
This court addressed the issue of reasonable time interval in a situation where the employee had quit his job and was returning home in Claims of Naylor, 723 P.2d 1237, 1241-42 (Wyo.1986):
"The issue of reasonableness may also turn on the question of what the employee was doing during the interval before leaving the premises, and whether his activity bore any relation to his employment or was purely personal. * * *
* * * * * *
"On the other hand, it is quite possible for an employee, whose employment has ended, to remain at a place of employment such as a restaurant, taking on the *869 status of customer or member of the public. * * * Moreover, when the employee for a substantial amount of time before leaving is engaged in an unmistakably personal pursuit, such as picking up pieces of coal for his own use, fooling with an unlicensed motorcycle, or playing cards and drinking, the interlude is not within the course of employment." 1A Larson, The Law of Workmen's Compensation, § 26.10, pp. 5-285 to 5-292 (1985).
(Emphasis added.)
Haagensen's injury occurred two and one-half to three hours after he had completed his work shift causing it to fall outside the realm of "immediately * * * after work" as discussed in Archuleta. The issue becomes whether Haagensen's injury occurred within a reasonable time interval after his work shift ended so as to qualify as a compensable injury. Our focus shifts to the circumstances occasioning this time interval and the activities of Haagensen during this interval.
Haagensen does not contend nor does the record show that his activities were due to the control of his employer, but he does assert that he was clearly within the ambit of his duties, that is, leaving the premises following the conclusion of his work. Haagensen testified that on June 30, 1995, he remained on his employer's premises for approximately two and one-half to three hours after clocking out from his work shift. He remained to rest his legs, to drink coffee and visit with both a co-worker who was also off-duty and the night clerk. He stated that he did not perform duties for his employer after clocking out.
In the instant case, we are satisfied that Haagensen failed to prove the elements of the premises rule and did not benefit from a rebuttable presumption that his injury was causally connected to his employment. Specifically, Haagensen failed to show he was in the course of his employment at the time he sustained the injury. We cannot say if the employer benefitted by allowing Haagensen to remain after work for such a long time and rest his legs or by improved morale of the employees as he contends, but at some point in time soon after he had clocked out, Haagensen's remaining on the employer's premises had no connection with his employment or the employer's business. His drinking coffee with and talking to another off-duty employee on the premises must be characterized as solely pursuing his own personal purposes. Any reasonable period involving preparation for leaving or any activity reasonably incidental to work had expired long before Haagensen's injury took place. No causal link exists between the occurrence of the injury and a risk connected with his employment. While Haagensen presents numerous cases where benefits were awarded and states these cases are controlling, they can be distinguished on their facts.
V. CONCLUSION
We hold that substantial evidence does not exist to support the finding of the hearing examiner that Haagensen's injury "ar[ose] out of and in the course of his employment," and therefore, its decision is not in accordance with the law. We find Haagensen did not suffer a compensable injury under the Wyoming Workers' Compensation Act. We affirm the district court's Order Upon Petition for Judicial Review.
HANSCUM, District Judge (Retired), dissenting.
I must respectfully dissent from the majority's reversal of the hearing examiner's award of worker's compensation benefits in this case. The hearing examiner's determination comports with the traditions and purposes underlying the State of Wyoming's system of "job insurance" as that system has evolved over the years while the majority decision in this case does not. The majority's current "refinding" of the facts in this case and its disinclination to accept the hearing examiner's correct application of the "on-premises" presumption disembody Wyoming's "on-the-job" insurance only somewhat less than Henry VIII's action against Anne Boleyn. Nary an "appellatectomy" of this worker's benefits is indicated much less the evisceration of a longstanding rule of worker's compensation law.
*870 I would affirm the hearing examiner's award because the facts merit the application of the legal presumption that the injury was work-related and thus compensable. Archuleta v. Carbon County School District No. 1, 787 P.2d 91 (Wyo.1990). Alternatively, this Court should affirm the hearing examiner's decision by recognizing a derivative presumption whose simplicity and logic would compel affirmance of the hearing examiner's award in this case and would also be instrumental in the disposition of future like appeals.
At a fact-finding hearing held in Sundance, Howard O. Haagensen was referred to as "Swede." If it please, I shall do likewise. At the time of his injury, Swede was a man in his late fifties who worked as a clerk and cook at Nelson's Oil and Gas. He was given to stay over on the work premises for periods of time following the completion of his midnight-ending shift to rest his "weary legs," to share humor, and to generally provide camaraderie and support to the graveyard shifters. Whether "on clock" or not, Swede was the type of guy who gave old-fashioned, Wyoming-type support to his fellows at work. At the hearing, Laraya Royer, one of Swede's co-workers, warmly related to the fact finder: "I'm tired after we get off work so Swede stays with me and we have coffee and talk until I can get woken up enough to drive home." This is proof that it was a common practice for employees to linger after work in support of one anothercertainly benefitting employment purposes.
Disaffirming the award, the majority opinion relies on isolated comments and vignettes in the testimony which emphasize the quantity of the stayrather than also analyzing the character of it and its quality. The "reasonableness" of the stay is not merely a matter of marshalling ticks on a clock. We must delve deeper. Some of the evidence is subtle, but a careful analysis of the record reveals very substantial facts which, together with reasonable inferences, establish the existence of the presumption and serve as the factual predicate for the hearing examiner to apply it to this case. Accordingly, it is necessary to briefly allude to the record evidence which is unelucidated in the majority opinion and to highlight certain facts discussed in the majority opinion but whose significance went unheeded. Such a review will illuminate the sound foundation for an award of benefits and ample cause for affirmance on appeal.
The importance of Swede extending a helping hand to his fellow late shifters and the significance of the unpaid services thereby rendered to his employment seem to have escaped the majority's attention. Swede's own words bespeak an air of mere chivalry: "Oh, maybe sometimes if the lady has to go out and bag pumps or something, we'll watch the cash register in case somebody came in." In fact, this testimony proves much more; namely, that Swede actually engaged directly in a work activity on the premises after he punched out that night. Moreover, if, while "watch[ing] the cash register," Swede had been killed in a holdup, he would be just as dead a clerk as any paid employee serving in that capacity. Indeed, the majority fails to credit Swede with the increased security that his very presence adds to the premises and the attendant reassurance which it brings to solo-staffing female convenience store clerks and safety-conscious employers alike. Doubtless, these tangible, as well as esoteric, factors involving Swede's post-shift presence at the store influenced the fact finder who is the best equipped to assess their import and reasonablenesssimilar to a jury assessing a personal injury case.
The reasonableness of the post-shift time on the premises, augmented by specifically found facts and circumstances, demonstrates that Swede was there for his employer and co-employees. Whether in application of the "on-premises" presumption or in the construction of factual findings independent of that evidentiary rule, a uniquely fact intensive environment is created such that the weighing of the two-sides of the scale properly should be left with the on-site trier of fact. Hillard v. Marshall, 888 P.2d 1255, 1260 (Wyo.1995). The job insurance system, which was designed to be there for Swede, unfortunately dissipates here in the wash of two nonfact-finding appellate tribunals. This Court should not mucky pup with the fact-finding province in this case.
The undisputed facts are: Swede was injured while leaving work through a clearly *871 marked employee exit door where a defective condition awaited him which had remained unchanged and unremedied from the time he punched out until the time he left the premises. He remained on the work site continuously during that interval. Ms. Royer, the beneficiary of Swede's largess, punched out with Swede and left approximately one-half hour before Swede. Query: Would her stay be deemed "reasonable" under the majority opinion which finds Swede's stay to be unreasonable? Does one-half hour turn a reasonable stay into an unreasonable one? What about fifteen minutes, seventeen minutes, or thirty-eight minutes? The point is: Whether reasonableness is considered strictly a time construct or a mixed construct of time and activity, isn't this all best left for the trier of fact? Instead of conducting an ad hoc appellate review of reasonableness, is it not a far better approach to affirm this case and augment the premises presumption rule with the following renaissance holding: Where an employee, who stays over on the work premises following a work shift in continuous and uninterrupted furtherance of the employer's interests and with the employer's knowledge, suffers an injury due to a defect on the premises which was in existence at the time the employee's normal work shift ended and remained unchanged and unremedied during the period of staying over, the period of staying over does not affect the compensability of the injury. Such a rule would, as worker's compensation intended, focus on the condition and safety associated with the premises as the object of the "on-the-job" query rather than obsessing on the hour of day on the punch clock or analyzing the post-shift motivations of well intended workers in carryover service to their employer's interests.
This is to say nothing of the adverse impact of the majority's decision between and among co-employees, inter sese. The Wyoming work place should be a fair place. Being "at work" should imply being at a place that is safe, and that, when properly there, any worker should receive the benefits of the employment relationship which are available to all employees on the work premises. Any result which has the effect of discriminating between and among on-premises employees whose presence advances the employment enterprise constitutes an invidious serendipity which ill-befits "The Equality State."
This case calls to mind the Latin maxim, ratio legis est anima legis, "[t]he reason of law is the soul of law." BLACK'S LAW DICTIONARY 1136 (5th ed.1979). Why should a worker be denied the benefits of a system designed to promote the safety of the work place when the same premises condition would have caused the injury three minutes or three hours after the shift ended? Are premises or people paramount under the fabric of our job insurance, employee-employer coexistence system in Wyoming? Finally, why should this Court arbitrate over ticks of the clock? The reason of the majority opinion is lost on me, but the soul of the state-administered pact between worker and employer lies housed in a safe work place for workers and the preservation of compensation for our injured workers.
An appellate dissection of the facts which severs this case from the on-premises coverage presumption impales this rule of law and deals a disharmonious blow to the symbiotic employer-employee relationship. This case cries out for reinstatement of the original factual findings as regards Swede and for the benefit of the efficient administration of the justice system. The district court's reversal of the award of benefits should be overturned, and the benefits properly due Swede should be restored.
| {
"pile_set_name": "FreeLaw"
} |
J-S05002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL FRANK KATONKA :
:
Appellant : No. 4 WDA 2017
Appeal from the PCRA Order November 17, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001110-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL FRANK KATONKA :
:
Appellant : No. 1493 WDA 2017
Appeal from the PCRA Order August 22, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001110-2008
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED MAY 4, 2018
Appellant, Paul Frank Katonka, appeals pro se from the November 17,
2016 and August 22, 2017 orders dismissing his first and second petitions
filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S05002-18
The factual background and relevant procedural history of this case
are as follows. From 2003 through 2008, Appellant sexually abused his
stepdaughter when she was between 8 and 13 years old. On May 12, 2008,
the Commonwealth charged Appellant via criminal information with four
counts of involuntary deviate sexual intercourse of a victim less than 13
years old,1 two counts of attempted rape,2 two counts of aggravated
indecent assault of a victim less than 13 years old,3 two counts of indecent
assault of a victim less than 13 years old,4 two counts of involuntary deviate
sexual intercourse of a victim less than 16 years old,5 indecent assault of a
victim less than 16 years old,6 aggravated indecent assault of a victim less
than 16 years old,7 endangering the welfare of a child,8 and corruption of
minors.9
____________________________________________
1 18 Pa.C.S.A. § 3123(b).
2 18 Pa.C.S.A. §§ 901, 3121.
3 18 Pa.C.S.A. § 3125(a)(7).
4 18 Pa.C.S.A. § 3126(a)(7).
5 18 Pa.C.S.A. § 3123(a)(8).
6 18 Pa.C.S.A. § 3126(a)(8).
7 18 Pa.C.S.A. § 3125(a)(8).
8 18 Pa.C.S.A. § 4304(a)(1).
9 18 Pa.C.S.A. § 6301(a)(1).
-2-
J-S05002-18
On November 26, 2012, Appellant pled guilty to all 16 counts and was
immediately sentenced to an aggregate term of 8 to 16 years’
imprisonment. Appellant did not file a direct appeal. On March 23, 2016,
Appellant filed his first pro se PCRA petition. Counsel was appointed and
filed a no-merit letter and motion to withdraw as counsel pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On September 30,
2016, the PCRA court issued notice of its intent to dismiss the petition
without an evidentiary hearing. See Pa.R.Crim.P. 907. On November 14,
2016, Appellant filed a response to the Rule 907 notice. On November 17,
2016, the PCRA court dismissed the petition and granted counsel’s motion to
withdraw. Appellant filed a timely notice of appeal which was docketed at 4
WDA 2017.10
While that appeal was pending, our Supreme Court decided
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). On August 2, 2017,
Appellant filed a second pro se PCRA petition arguing that he was entitled to
relief under Muniz. On August 22, 2017, the PCRA court dismissed the
petition for lack of jurisdiction. Appellant filed a timely notice of appeal
____________________________________________
10 The PCRA court and Appellant complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-S05002-18
which was docketed at 1493 WDA 2017.11 The two appeals were
consolidated and we resolve both appeals in this memorandum.
Appellant presents three issues for our review:
1. [Whether the PCRA court erred in finding that Appellant failed
to satisfy the governmental interference exception to the
PCRA’s one-year time bar?]
2. Whether the PCRA court erred in not holding an evidentiary
hearing where Appellant’s PCRA [petition] contained multiple
claims that go to the legality of the sentence and are non-
waivable?
3. [Whether the PCRA court erred in not granting Appellant
leave to amend his first PCRA petition?]
Appellant’s Brief at 4-5.12
We begin with Appellant’s challenge to the PCRA court’s November 16,
2016 order dismissing his first PCRA petition. “Crucial to the determination
of any PCRA appeal is the timeliness of the underlying petition. Thus, we
must first determine whether the [first] PCRA petition was timely filed.”
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (citation
omitted). The timeliness requirement for PCRA petitions “is mandatory and
jurisdictional in nature[.]” Commonwealth v. Brown, 143 A.3d 418, 420
____________________________________________
11The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal. See Pa.R.A.P. 1925(b).
12 Appellant makes other arguments in his supplemental brief and amended
supplemental brief. Those arguments, however, are waived. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”).
-4-
J-S05002-18
(Pa. Super. 2016) (citation omitted). Hence, we concentrate our attention
on whether Appellant timely filed his first PCRA petition and, if not, whether
he has raised a viable statutory exception to the PCRA’s timeliness
requirement.
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence
became final on December 26, 2012. Appellant’s first PCRA petition was
filed on March 23, 2016. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
-5-
J-S05002-18
42 Pa.C.S.A. § 9545(b)(1)(i-iii).13 If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “It is the petitioner’s
burden to plead and prove an exception to the PCRA-timeliness rule.”
Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation
omitted).
As noted above, a petitioner must plead and prove the existence of a
timeliness exception in order for a PCRA court to have jurisdiction over an
untimely petition. Failure to plead and prove the applicability of a timeliness
exception in the PCRA petition renders the PCRA court without jurisdiction to
consider the merits of the petition. See Commonwealth v. Derrickson,
923 A.2d 466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa.
2007). In this case, Appellant’s PCRA petition only included a bald assertion
that he satisfied one or more of the three statutory exceptions to the PCRA’s
one-year time bar. PCRA Petition, 3/23/16, at 6-7. Such a bald assertion,
without a single factual averment in support thereof, is insufficient to plead
and prove the applicability of a timeliness exception. As such, the PCRA
court correctly determined that Appellant failed to plead and prove the
applicability of a timeliness exception and that it lacked jurisdiction to reach
____________________________________________
13Contrary to Appellant’s arguments, there is no equitable exception to the
PCRA’s one-year time bar. Commonwealth v. Smallwood, 155 A.3d
1054, 1060 (Pa. Super. 2017).
-6-
J-S05002-18
the merits of Appellant’s first PCRA petition. Accordingly, Appellant is not
entitled to relief on his first two claims of error respecting the November 16,
2016 order.
Appellant also argues that the PCRA court erred in denying his request
to amend his first PCRA petition. Appellant included this request in his
response to the PCRA court’s Rule 907 notice. We review a PCRA court’s
denial of leave to amend a PCRA petition for an abuse of discretion. See
Commonwealth v. Keaton, 45 A.3d 1050, 1060 n.3 (Pa. 2012); see also
Pa.R.Crim.P. 905(A) (A PCRA court “may grant leave to amend or withdraw
a [PCRA petition] at any time. Amendment shall be freely allowed to
achieve substantial justice.”). At the time the PCRA court ruled on
Appellant’s request, amendment of his first PCRA petition would have been
futile as it was patently untimely and Appellant failed to make sufficient
averments that he satisfied a statutory exception to the PCRA’s one-year
time bar. Accordingly, we conclude that the PCRA court did not abuse its
discretion in denying Appellant leave to amend his first PCRA petition.
Turning to the August 21, 2017 order dismissing Appellant’s second
PCRA petition, the PCRA court properly determined that it lacked jurisdiction
over that petition. As this Court recently explained, a PCRA court does not
have jurisdiction to consider a subsequent PCRA petition when an appeal
from a prior PCRA petition is pending. Commonwealth v. Montgomery,
2018 WL 1311961, *4 (Pa. Super. Mar. 14, 2018) (en banc). In this case,
-7-
J-S05002-18
the appeal from the PCRA court’s November 16, 2016 order was pending
before this Court at the time Appellant filed his second PCRA petition. Thus,
the PCRA court lacked jurisdiction over the second petition and properly
dismissed the petition without an evidentiary hearing.
Appellant’s application for relief denied. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
-8-
| {
"pile_set_name": "FreeLaw"
} |
497 F.3d 1160 (2007)
Ana Patricia MONTES, Nely Davila, Margarita Erazo, Eva Escobedo, Ernesto Garcia, Willie Mae Hopkins, Elizabeth Jaramillo, and Mervyn D. Vargas, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs-Appellants, and
Josefa C. Diaz, and Angelica Nunez, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs,
v.
VAIL CLINIC, INC., Defendant-Appellee, and
Servicemaster Management Services Limited Partnership, Defendant.
No. 05-1385.
United States Court of Appeals, Tenth Circuit.
August 14, 2007.
*1161 *1162 David Sandoval, Sandoval Law Firm, Santa Fe, NM, for Plaintiffs-Appellants.
Andrew M. Low (Janet A. Savage and Catherine L. Guzelian, with him on the brief), Davis Graham & Stubbs LLP, Denver, CO, for Defendant-Appellee.
Before LUCERO, MURPHY, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Eight former employees of the Vail Clinic, Inc., a hospital in Vail, Colorado, appeal the district court's grant of summary judgment to the Clinic on their Title VII claims. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII" or the "Act"). With respect to five of the appealing plaintiffs, we conclude that they fail to establish, as they must, the timeliness of their claims. With respect to the remaining three plaintiffs, we are able to address the substance of their appeal but, like the district court, conclude that they have not adduced facts from which a reasonable jury could find a violation of Title VII. On these bases, we affirm.[1]
*1163 I
Summary judgment follows when a moving party points to the absence of factual support on an element essential to the non-movant's case, and on which the non-movant bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Clinic argues that the plaintiffs in this case have failed to present record evidence sufficient to suggest that they filed timely Title VII charges with the federal Equal Employment Opportunity Commission ("EEOC"), and that proof of such a timely charge is a condition precedent to bringing suit. Viewing the facts in the light most favorable to plaintiffs and the parties' legal arguments de novo, Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir.2006), we are constrained to agree with respect to five of the eight plaintiffs before us.
A
An employee wishing to challenge an employment practice under Title VII must first "file" a "charge" of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 2166-67, 167 L.Ed.2d 982 (2007). Because Title VII seeks to avoid "the pressing of stale claims," it requires aggrieved persons to file any such charge within certain specified periods after the allegedly unlawful conduct occurred. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (quotation omitted). If the employee does not submit a timely EEOC charge, he or she may not proceed to court. Ledbetter, 127 S.Ct. at 2166-67. While the applicable deadline for filing a charge with the EEOC depends on a variety of circumstances, the latest possible filing date is 300 days after the last allegedly unlawful act. See 42 U.S.C. § 2000e-5(e)(1).
Here, the last alleged violation of Title VII for each plaintiff coincided with his or her termination date.[2] And the undisputed facts reveal that five of the eight plaintiffs before us (Nely Davila, Margarita Erazo, Willie Mae Hopkins, Elizabeth Jaramillo, and Mervyn Vargas), filed their charges with the EEOC more than 300 days after their respective terminations. Under our precedents and those of the Supreme Court, this combination of facts would seem to require dismissal of the claims of these particular plaintiffs. See Holmes v. Utah, Dep't of Workforce Servs., 483 F.3d 1057, 1061-62 (10th Cir. 2007) (dismissing allegations which did not occur within the 300 day filing period); see also Ledbetter, 127 S.Ct. at 2166-68.
Specifically, the record before us reflects that most of the plaintiffs departed the Clinic between November 1998 and May 1999; beginning approximately six months later, on November 3, 1999, and proceeding at various dates through April 2000, they filed sworn charges with the EEOC. The following chart summarizes the exact dates on which each plaintiff was terminated and filed his or her charge with the EEOC:[3]
Date of Date of
Plaintiff Termination EEOC Charge
Nely Davila April 28, 1999 April 4, 2000
Margarita Erazo April 16, 1999 April 10, 2000
Eva Escobedo Nov. 11, 1999 March 17, 2000
Ernesto Garcia May 30, 1999 March 17, 2000
*1164
Willie Mae Hopkins Nov. 6, 1998 Nov. 3, 1999[4]
Elizabeth Jaramillo April 19, 1999[5] April 4, 2000
Ana Patricia Montes Aug. 2, 1999 March 20, 2000
Mervyn Vargas May 11, 1999 March 20, 2000
As the chart reflects, all but Ms. Escobedo, Mr. Garcia and Ms. Montes, filed charges with the EEOC more than three hundred days after their termination-a delay that would seemingly prove fatal to their effort to challenge the Clinic's conduct in court.
B
Plaintiffs suggest that this case is more complicated because they "filed charges" within the meaning of Title VII even before the dates reflected above. In support of this contention, plaintiffs submit that, long before they presented formal charges to the EEOC, they contacted the Colorado Civil Rights Division ("CCRD") first by letter from their counsel on August 17, 1999, and then, shortly thereafter, by completing "intake forms" with the division. These contacts with the CCRD, they contend, suffice to qualify as the "filing" of "charges" with the EEOC under Title VII. Defendants, meanwhile, emphasize that no evidence reflecting or regarding these contacts with the CCRD exists in the record before us and urge that this deficiency is dispositive. We must agree. The viability of plaintiffs' argument can be assessed only with a review of the content of their submissions to the CCRD; without counsel's letter or the intake forms (all materials that are uniquely within plaintiffs' control), we are unable to do more than speculate whether they qualified as "charges" or whether they were "filed" within the time period prescribed by law. And speculate we may not do. See Bones v. Honeywell Intern., Inc., 366 F.3d 869, 875 (10th Cir.2004) ("To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.").
Indeed, to ascertain whether plaintiffs' materials might or might not qualify as "filed charges" with the EEOC is not the straightforward task it might at first blush seem. The question what sort of documents suffice to qualify as "charges" under Title VII is surprisingly unresolved, see, e.g., Ledbetter, 127 S.Ct. at 2166 n. 1; Edelman v. Lynchburg College, 535 U.S. 106, 118-19, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), and has generated a circuit split.[6] Some courts suggest that an informal *1165 intake questionnaire filed with a state entity like the CCRD[7] or the EEOC almost always constitutes an EEOC charge; others hold that it will rarely do so; these competing positions are anchored by the Ninth and Sixth Circuits, respectively.[8] Many circuits appear to populate some form of middle ground; while these circuits agree that a completed questionnaire must meet the EEOC's regulations prescribing the minimum contents of a charge, see 29 C.F.R. § 1601.12 (minimum contents of a Title VII charge); id. § 1626.8 (minimum contents of an ADEA charge), they differ on what more is required. Most apply some variant of the "manifestation of intent" test asking whether a reasonable person would have known that the aggrieved person "intended to activate the Act's machinery" through his or her submission of a questionnaire but some consider additional factors.[9] To date, at least, our circuit has not been called to voice a view.
Plaintiffs' argument would, of course, change all that and require us to decide whether and when the completion of an informal intake form with the CCRD may qualify as a "charge" with the EEOC. But without the plaintiffs' actual CCRD filings, or even some meaningful record evidence about their contents, we would be marching into an intercircuit split unable to contribute thoughtfully to the discussion or even fairly resolve this appeal, for we could not begin to say whether plaintiffs' filings meet even the minimum required to be considered a "charge" under any of the *1166 tests advanced by the circuit courts. Taking the most permissive standard applied by courts for determining whether submission of a questionnaire with a state entity constitutes a "charge" under Title VII, a plaintiff's state filing must satisfy the charge "content" regulations promulgated by the EEOC. See, e.g., Casavantes, 732 F.2d at 1443. The applicable EEOC regulations, in turn, require "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." See 29 C.F.R. § 1601.12(b). Although this standard is not demanding, we simply cannot know whether it is satisfied in this case without an examination of plaintiffs' submission to the CCRD. Thus, for example, Title VII requires each discrete act of discrimination (such as termination, failure to promote, denial of transfer, or refusal to hire) to be described in and the subject of a timely filed charge. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir.2003) ("a claimant must file a charge of discrimination within the appropriate limitations period as to each such discrete act of discrimination that occurred"). That is, a plaintiff can bring a lawsuit for only those "unlawful employment practices" described in his or her administrative charge. Because we have no idea what acts of discrimination the plaintiffs in question included within their CCRD submission, we are in no position to assess what claims they may have preserved for litigation.
We find ourselves in an equally problematic position with respect to the question whether the alleged submission to the CCRD was ever "filed" with the EEOC in the requisite 300 day period. See 42 U.S.C. § 2000e-5(e)(1); see also Ledbetter, 127 S.Ct. at 2177. Even assuming that plaintiffs' unproduced state submissions qualify as "charges," we do not know when they were "filed" with the EEOC. If plaintiffs asked the CCRD to forward their "charges" to the EEOC, a filing would have been effected under EEOC regulations at most 60 days later, on October 16, 1999. See 29 C.F.R. § 1601.13(b)(1). However, if plaintiffs did not so request, the CCRD documents would not have been filed with the EEOC unless (i) plaintiffs filed them with the EEOC themselves, or (ii) plaintiffs alleged and provided evidence of the existence of a worksharing agreement whereby the CCRD acted as the agent of the EEOC for purposes of accepting a charge even in the absence of a forwarding request. See, e.g., Johnson v. J.B. Hunt Transp., Inc., 280 F.3d 1125, 1129-30 (7th Cir.2002) (holding that, in light of a worksharing agreement between the state agency and the EEOC, a charge of discrimination filed with the state agency was "properly filed with the EEOC" on the same date). Because the record before us does not include plaintiffs' CCRD submission, and because there is no other evidence in the record suggesting that either a forwarding request was made or that a worksharing agreement existed, we simply cannot know whether plaintiffs "filed" within the requisite statutory time period.
C
Recognizing the limits of the record before us, plaintiffs offer two fallback arguments.
First, they assert that the EEOC's "relation-back" doctrine dissipates any cause for concern about the timeliness of their charges. See Reply Br. 6-7. Pursuant to that doctrine, a defective charge filed during the applicable 300-day period may be amended outside the limitations period to cure technical defects or omissions if the amendments are directly "related to or growing out of the subject matter of the original charge." 29 C.F.R. § 1601.12(b); *1167 see also Edelman, 535 U.S. at 118, 122 S.Ct. 1145.[10] But the relation-back principle applies, and a prior defective charge may be subsequently amended, only when the earlier filing can itself be fairly construed to operate as a "charge." See Peterson v. City of Wichita, 888 F.2d 1307, 1308-09 (10th Cir.1989) (permitting relation back where plaintiff submitted to the EEOC a timely though unverified charge); see also Edelman v. Lynchburg Coll., 300 F.3d 400, 403-04 (4th Cir.2002); Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1306-07 (11th Cir.2001). Plaintiffs' argument thus underscores rather than resolves our quandary, turning as it necessarily does on an assumption that their initial letter and intake forms to the CCRD qualified as "charges" to the EEOC, a question we simply are unable to answer on the record before us.
Second, plaintiffs respond that it was the Clinic, not them, who bore the burden of producing the CCRD correspondence and intake forms because whether plaintiffs "filed" a "charge" within the 300-day filing deadline is properly understood only as an affirmative defense and thus a matter on which the Clinic bore the burden of proof. This, however, is an argument our precedents foreclose. While Title VII's mandatory time limit for filing charges with the EEOC is not a jurisdictional prerequisite (and is thus subject to waiver, estoppel, and tolling when equity requires), see Zipes, 455 U.S. at 393, 102 S.Ct. 1127, the obligation to demonstrate timeliness in filing a charge is a condition precedent to suit and thus a burden for plaintiffs to carry, see Million v. Frank, 47 F.3d 385, 389 (10th Cir.1995).[11] The Supreme Court has repeatedly described compliance with Section 2000e-5(e)(1)'s filing requirements as "prerequisites that a plaintiff must satisfy before filing suit," Morgan, 536 U.S. at 109, 122 S.Ct. 2061, noting as well that "[t]imely filing is a prerequisite to the maintenance of a Title VII action," United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). In consonance with these directives, we and every circuit court to address the question directly therefore have deemed compliance with Title VII's filing deadline as a condition precedent rather than an affirmative defense. See Million, 47 F.3d at 389 ("[t]he filing requirements of Title VII" are "condition[s] precedent"); Alexander v. Local 496, Laborers' Int'l Union of N. Am., 177 F.3d 394, 407 (6th Cir.1999); Lawrence v. Cooper Cmtys., Inc., 132 F.3d 447, 451 (8th Cir.1998); Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir.1991); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1010-11 (11th Cir.1982).[12]
*1168 The structure of the Act supports this conclusion. The filing deadlines associated with a Title VII charge are integrated into the statutory section that delineates the various other steps a prospective plaintiff must satisfy before being given the keys to the courthouse door to file a complaint. See generally 42 U.S.C. § 2000e-5(f)(1) (requiring notification of the Commission's dismissal of, or failure to act upon, a charge filed pursuant to the statutory scheme prior to bringing a civil action); see also Ledbetter, 127 S.Ct. at 2166-67. This is in contrast to traditional affirmative defenses which are separate bars to suit and often not so integrated into the plaintiffs' cause of action. Cf. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 919, 166 L.Ed.2d 798 (2007) (in holding that the exhaustion requirement contained in the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq. ("PLRA"), was an affirmative defense to action brought under 42 U.S.C. § 1983, the court found significant that the "PLRA itself is not a source of a prisoner's claim [rather, Section 1983 was and it does not require exhaustion]"). Placing the burden upon plaintiffs makes sense, too, of the practical realities at hand, for they enjoy superior access to the evidence necessary to prove their compliance with the statutory filing deadline, here their own letter and completed state forms. See 21 Wright & Graham, Federal Practice and Procedure: Evidence 2d § 5122 at 403 (2005); accord United States v. Cont. Ins. Co., 776 F.2d 962, 964 (11th Cir.1985); Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 36 (7th Cir.1975).[13]
II
Unaffected by our analysis and disposition so far are the timely claims of Ms. Escobedo, Mr. Garcia, and Ms. Montes. With respect to each, and by turn, we outline the relevant timely factual allegations and pertinent legal analysis.
A
Ms. Escobedo, a Hispanic woman of Mexican descent, worked as a housekeeper in the Clinic's operating room department from approximately December 1997 through November 1999. See App. at 140, 142-43, 465. Ms. Escobedo's claims revolve primarily around two facts: an instruction she received to speak only English in the Clinic's operating rooms, and additional work she received from her supervisor that prompted her to quit. Combined, she contends, these circumstances suffice to give rise to Title VII claims for hostile work environment and disparate treatment.
1
Because she had difficulty speaking English, see App. at 140, when she began working at the Clinic Ms. Escobedo primarily communicated with the English speaking operating room nurses through the aid of an interpreter. See App. at 146; see also id. at 159. Once, albeit in what she describes as a "nice way," an operating room nurse asked Ms. Escobedo to speak in English; the nurse explained that she would like Ms. Escobedo to practice her English because being more proficient *1169 would aid her job performance. See id. at 159. Ms. Escobedo testified that she did indeed have difficulty receiving lengthy instruction from the nurses and that her job duties required "quickly" and carefully cleaning the operating rooms in compliance with directions from the operating room nurses. See id.; see also id. at 80-81.
A few months later, Onesima Mejia, the housekeeping department supervisor, acting upon the request of the same operating room nurse, reiterated the nurse's instruction that Ms. Escobedo and the other operating room housekeeper speak English rather than Spanish while working in the operating rooms. Id. at 159, 176. However, Ms. Escobedo was expressly permitted to speak Spanish during her breaks. Id. at 176. Neither does Ms. Escobedo allege that she, or any other housekeeper, was asked to speak English outside of the operating room department or forbidden from engaging in non-job related conversations with other Spanish speakers in her native tongue.[14] Ms. Escobedo also testified that she never complained about the nurses' instruction, see id. at 159, although she reported other grievances, including the increased work assignments she received from Ms. Mejia, see, e.g., id. at 157.
Ms. Escobedo complains that, from shortly after she joined the Clinic to the day of her resignation, her duties were repeatedly enlarged to include chores the nurses had previously been responsible for, such as stocking medical supplies in the operating rooms and moving stretchers from one room to another. See id. at 143-44. The nurses explained that other hospital staff "had too much work" and that the housekeepers essentially had to fill the gap. Id. at 144. Ms. Escobedo resigned because of this additional work it eventually became "too much." Id. at 144. However, she does not allege that the nurses assigned her work out of any ill will. To the contrary, she repeatedly testified that she got along well with the nurses; their positive feedback to Douglas Grinnell, the housekeeping department manager, and Ms. Mejia was the reason she received raises; and on at least one occasion they tried to intervene on her behalf with Ms. Mejia. See, e.g., id. at 149, 157. Neither does Ms. Escobedo allege that she was singled out for additional work; rather, she testified that she never believed she was assigned any more work than anyone else. See id. at 158.
Ms. Escobedo informed Ms. Mejia and Mr. Grinnell of the difficult workload and requested they hire an additional housekeeper, something which they declined to do. See id. at 148. Stan Anderson, Mr. Grinnell's superior and the Clinic's Director of Facilities, testified that Mr. Grinnell was tasked with "[b]udgetary control" of the housekeeping department and that the "marching orders" were to "maintain" the existing budget. Id. at 2, 6. The message sent from Mr. Anderson was that the staffing was already "very, very generous" and not to enlarge the staff, though Mr. Grinnell was not expressly forbidden from doing so. Id.
2
Ms. Escobedo claims that the foregoing facts the English-only instruction plus the additional work assignments she received give rise in the first instance to a claim for hostile work environment. In determining whether an actionable hostile work environment existed, "we look to all the circumstances," Morgan, 536 U.S. at 116, 122 S.Ct. 2061 (quotation omitted), *1170 to see if the workplace was "permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment," and if the plaintiff was subjected to this abusive environment because of her national origin. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir.2007) (quotation omitted).
In this undertaking, we consider all the circumstances not from the plaintiff's subjective point of view but from the perspective of a reasonable person in the plaintiff's position. Id. Still, the victim must also "subjectively perceive the environment to be abusive" because without such a belief, "the conduct has not actually altered the conditions of the victim's employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (emphasis added); see also id. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring) ("It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job." (quotation and alteration omitted)). The question on summary judgment, then, is whether a jury, in view of all of the evidence, could reasonably conclude the discriminatory harassment to be sufficiently severe or pervasive as "to alter the conditions of [the victim's] employment and create an abusive working environment," Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quotation omitted), and that the victim subjectively perceived the environment to be abusive, Harris, 510 U.S. at 21-22, 114 S.Ct. 367.
a
We begin by recognizing that English-only instructions indeed can, in certain circumstances, "create[] a hostile atmosphere for Hispanics in their workplace" and thus violate Title VII. Maldonado v. City of Altus, 433 F.3d 1294, 1304 (10th Cir.2006), abrogated in part on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345 (2006); see also Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir.1980) (noting that while "[n]either the statute nor common understanding equates national origin with the language that one chooses to speak[, l]anguage may be used as a covert basis for national origin discrimination"); 29 C.F.R. § 1606.7(a) (observing that English-only policies may foster a sense of "inferiority, isolation and intimidation based on [an employee's] national origin").[15]
To date, however, we have addressed only a sweeping English-only policy mechanically enforced by an employer in all circumstances and at all times within the work environment; we have not had occasion to review a more tailored policy limited, like the one now before us, to specific places or times within the workplace. See Maldonado, 433 F.3d at 1307-08 (holding that an English-only policy, which applied *1171 at all times to all employees regardless of occupation or activity, may have created a hostile work environment).
For its part, however, the EEOC, expressly distinguishes between English-only policies on just this basis. See 29 C.F.R. § 1606.7. With respect to policies blithely enforced at all times and places in the work environment, the EEOC presumes, subject to rebuttal, that they violate Title VII. See id. § 1606.7(a). With respect to tailored policies applicable only at "certain times" or places, the EEOC endorses no such presumption, suggesting that such rules may more often be linked to legitimate "business necessit[ies]." Id. § 1606.7(b).
While the EEOC's guidelines are not controlling, Maldonado, 433 F.3d at 1305, we have intimated that they are nonetheless "entitled to respect, not as interpretations of the governing law, but as an indication of what a reasonable, informed person may think about the impact of an English-only work rule on minority employees, even if we might not draw the same inference." Id. at 1306. It is with this standard in mind that we turn to a consideration of the policy before us.
The English-only rule complained of here prohibited Ms. Escobedo and other housekeepers from speaking Spanish solely while working in the operating room department, and apparently only for job-related discussions, and carried with it a conceded business necessity. The policy bore no apparent effect in any other place within the Clinic or during Ms. Escobedo's breaks or to discussions unrelated to her job, and thus, according to the EEOC, is a policy applicable only at "certain times" or places justifiable on a showing of business necessity. See, e.g., E.E.O.C. Decision No. 83-7, 31 Fair Empl. Prac. Cas. (BNA) 1861, 1983 WL 22488, at *2 (E.E.O.C. Apr. 20, 1983). Likewise, it is undisputed that clear and precise communication between the cleaning staff and the medical staff was essential in the operating rooms; that the sanitariness of the operating rooms was of paramount importance to the hospital (not to mention the health and safety of its patients); and that most of the operating room nurses did not speak Spanish and thus could not communicate with Ms. Escobedo without resort to an English-only policy. See Appellee's Br. 39; App. at 228. Ms. Escobedo herself admits that maintaining the sanitariness of the operating rooms necessitated the "quick" and careful performance of her duties and that communication with the nurses was essential. Neither do we have any evidence before us that the Clinic's policy was the product of, or resulted in, any sort of discriminatory animus.[16]
All of this taken together the narrowness of the Clinic's policy, its origin in the Clinic's undisputed business necessity, and the absence of any evidence suggesting that the policy was the product of improper motive or that it gave rise to any discriminatory effect distinguish this case from the policy we faced in Maldonado and the sorts of cases the EEOC has found to violate Title VII. See Maldonado, 433 F.3d at 1304-06 (observing that the business necessity proffered by the defendant was "scant" and that the blanket policy gave rise to ethnic taunting); see also, e.g., Christina Childress v. U.S. Air Force, EEOC DOC 01842814, 1986 WL *1172 635306, at *4-5 (E.E.O.C. July 7, 1986). On the record before us, and in consonance with the EEOC's views, we therefore cannot see any reasonable basis for concluding the Clinic's policy sufficient to give rise to a hostile work environment claim.
b
With respect to her claims of additional work assignments, Ms. Escobedo makes no allegation that she or any other employee was singled out on the basis of race or national origin. In fact, she testified that she believed her work assignments were excessive because there was a shortage of housekeeping staff.
Of course, even when an increase in assignments is not on its face discriminatory, if there exists other evidence of discriminatory conduct, a jury may reasonably infer that even seemingly non-discriminatory work assignments were in fact motivated by discriminatory animus. See Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir.2005). But in order for facially non-discriminatory conduct to be so tainted, the "other" conduct at issue must be "`overtly" discriminatory. Id. (quoting O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.1999)). Here, however, the only conduct by the nurses which even tangentially relates to Ms. Escobedo's national origin is the English-only instruction related to the operating rooms. But, as we have noted, Ms. Escobedo has not alleged that it was a vehicle to effect any discriminatory animus harbored by the nurses, let alone provide evidence of such intent or effect; to the contrary, Ms. Escobedo testified that she got along well with the nurses and they supported her in disputes with her supervisors. This evidence before us thus simply does not permit an inference of "overt" discrimination as required by our precedent and we cannot say that the combination of the two incidents could reasonably be found to have created a hostile atmosphere. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (holding that plaintiff failed to present a triable issue as to a hostile work environment where the "derisive environment in the workshop was universal" he was not "singled out" for abuse and he failed to show the derisive atmosphere "stemmed from racial animus"); cf. O'Shea, 185 F.3d at 1098, 1102 (holding that the "obviously sex and gender-motivated conduct" by a supervisor including, inter alia, his stated belief "that women in general were incompetent, stupid and scatterbrained" "so poisoned the entire body of conduct toward Plaintiff that a jury reasonably could view all of the allegedly harassing conduct . . . as the product of sex and gender hostility").[17]
3
Beyond her hostile work environment claim, Ms. Escobedo also seeks relief *1173 under a disparate treatment theory, relying here solely on her allegations of excessive work. To succeed in a disparate treatment claim, Ms. Escobedo must show that, through her work assignments, the Clinic intentionally discriminated against her. See Ledbetter, 127 S.Ct. at 2167. Because Ms. Escobedo seeks to prove such animus solely through indirect or circumstantial evidence, we examine her claim through the prism of the familiar burden-shifting framework established by McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. See Young, 468 F.3d at 1249. Once he or she does so, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. If the defendant satisfies its burden, the plaintiff must then show that the defendant's proffered justification was simply pretext for unlawful discrimination. Id.
For our purposes, even should we assume that the additional duties Ms. Escobedo received qualify as a materially adverse employment action for purposes of McDonnell Douglas's first step, her claim would still falter. There is no question in this case but that the Clinic has "articulate[d] some legitimate, non-discriminatory reason for the adverse employment action." Young, 468 F.3d at 1249. Ms. Escobedo herself testified that the nurses assigned additional work to her and other housekeepers because there was a shortage of staff, and that she was assigned no more work than any other housekeeper. There is record evidence, as well, that the housekeeping department was discouraged from enlarging its staff because of budgetary constraints. In light of these facts, we must acknowledge that the Clinic has met its "exceedingly light" burden of establishing a legitimate, non-discriminatory reason for its challenged actions under McDonnell Douglas's second step, Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1165 (10th Cir.2007) (en banc), by producing evidence that Ms. Escobedo's cleaning duties were increased in parity with other housekeepers and because of the surplus of work in the department; the lack of additional staff to complete it; and the need to keep costs down.
To reach trial, Ms. Escobedo must therefore show that there is a genuine issue of material fact regarding whether the Clinic's justification was pretextual. Young, 468 F.3d at 1249. To accomplish this, Ms. Escobedo must present facts suggesting that the Clinic's "proffered [national origin neutral] reasons were so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude the reasons were unworthy of belief." Id. at 1250.[18] This Ms. Escobedo fails to do. Ms. Escobedo herself repeatedly testified to the excess work throughout the entire housekeeping department and its even-handed distribution. She does not allege that the Clinic had an excess of funds or in any way contest its assertions of economy. Neither does she contend that she received her new assignments because she was Hispanic. Rather, her own testimony establishes that she had at least a cordial relationship with the nursing staff and that they repeatedly commended the quality of her work to Mr. Grinnell and Ms. Mejia, which resulted in her receipt of a raise. *1174 Based on these facts, we are without choice but to affirm the district court's grant of summary judgment to the Clinic as to Ms. Escobedo's claims.[19]
B
Mr. Garcia, a Hispanic man, worked in the Clinic's housekeeping department from 1995 until 1999. See App. 190, 206. Mr. Garcia claims that the confluence of being assigned an excessive amount of work and the Clinic's policy of forbidding family members from visiting employees during work hours at the hospital gives rise to a hostile work environment claim.
1
Much like Ms. Escobedo, Mr. Garcia claims that he was forced to resign because Ms. Mejia assigned him "a whole lot of [additional] work, and [he] couldn't do that sort of work." Id. at 184-85, 195. He contends that he quit before attempting to take on Ms. Mejia's new work assignments because "[he] was barely able to finish with the assignments that [he] had before." Id. at 196-97. Prior to the enlargement of his job responsibilities, Mr. Garcia's duties included cleaning offices, and part of a hallway, as well as disposing of the garbage in the infectious diseases wing of the hospital. See id. at 185. The additional work Ms. Mejia sought to add included cleaning elevators, welcome mats, and sweeping and mopping stairways. See id.
Mr. Garcia presented various reasons for Ms. Mejia's perceived mistreatment of him. Initially, he testified that he did not know if discriminatory animus motivated Ms. Mejia's assignment of additional work, see id. at 185 ("Q. Do you think you were getting this extra work because you were Hispanic? A. Well, that I don't know."). Later, he added his opinion that he was given too much work because he was Hispanic, although he candidly admitted he had no facts to support this belief. See id. at 200. Elsewhere still, he stated that Ms. Mejia treated him more poorly when she was "mad" but he believed her anger was not "personal" to him and that he was not the cause of it; rather, her anger stemmed "from home" issues. Id. at 198. And, finally, Mr. Garcia expressed the belief that the Clinic assigned him excessive work in the hopes that he would resign so that it could hire a replacement at a lower wage. See id. at 208-09.
Mr. Garcia complains as well that Ms. Mejia and Mr. Grinnell repeatedly expressed in housekeeping department meetings the Clinic's policy forbidding the housekeeping staff's family members from waiting in the Clinic lobby, see id. at 194, 208, and he indicates that he was reprimanded sometime during January 1999 for failing to comply with this policy, see id. at 209 ("[I]n January 1999, Onesima saw my wife in the lobby and told me again that my wife could not wait there."). In response, Mr. Anderson testified for the Clinic that this policy applied to all departments, and his assertion has not been contradicted on appeal. See id. at 9; see also id. at 184.
*1175 2
We are unable to discern from these limited facts a basis on which a reasonable jury might infer a hostile work environment in violation of Title VII. None of the traditional "hallmarks" of such a claim, such as evidence of ridicule or mistreatment based on race or national origin, are present. Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir.1998); see also Herrera, 474 F.3d at 681-82; see also PVNF, 487 F.3d at 798-99. To be sure, at one point Mr. Garcia expressed the view that he received additional work assignments because he is Hispanic. But Mr. Garcia then proceeded to walk away from that testimony, admitting that he had no factual basis for his opinion, and suggesting that Ms. Mejia's behavior was instead the product of personal "home" issues. At no point, moreover, has Mr. Garcia contested that the Clinic faced purely economic pressures that compelled its assignment of additional responsibilities to housekeeping staff.
Similarly, a jury could not reasonably divine that Ms. Mejia's decision to discipline him for failing to comply with the Clinic policy forbidding family members from entering the Clinic had anything to do with Mr. Garcia's national origin. Far from suggesting an inference that Ms. Mejia or the Clinic applied the policy only to Hispanics or solely reprimanded Hispanics or other minorities for violating the rule, the record before us contains uncontroverted evidence that the policy was applied to all Clinic staff.[20]
C
Ms. Montes, a Hispanic woman, was employed in the Clinic's housekeeping department from 1992 until she was fired in 1999, a firing she contends was the result of unlawful retaliation.
1
During her time at the Clinic, Ms. Montes met with a lawyer regarding the potential of bringing this lawsuit against the Clinic. See App. at 292. Ms. Montes asserts that one of her co-workers, Felipe Martinez, knew of her meeting with counsel and told Ms. Mejia. See id. at 291-92. Fired two months later by Mr. Grinnell, Ms. Montes claims her discharge was the product of retaliatory animus and designed to punish her decision to seek legal consultation. See id. at 293. Meanwhile, the Clinic asserts that Mr. Grinnell discharged Ms. Montes for insubordination after she failed to follow a supervisor's housekeeping directive. See id. at 291. Ms. Montes candidly admits that, shortly before being fired, she did disregard an order from the Clinic's lead housekeeper, Mercedes Agurcia, but urges that her insubordination was justified because the duty Ms. Agurcia sought to assign to her properly belonged to a different employee. See id.[21]
*1176 2
Title VII forbids retaliation against employees who voice opposition to, or participate in an investigation or proceeding alleging, an unlawful employment practice by his or her employer. See 42 U.S.C. § 2000e-3(a). Because Ms. Montes seeks to prove her retaliation claim solely through indirect or circumstantial evidence of discriminatory animus, we turn again to McDonnell Douglas in analyzing her claim. See Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir.2004).
In order to state a prima facie case for retaliation under McDonnell Douglas's first step, Ms. Montes must demonstrate that (1) she engaged in protected opposition to discrimination; (2) she suffered an adverse action that a reasonable employee would have found material; and (3) a causal nexus exists between her opposition and the employer's adverse action. See PVNF, 487 F.3d at 803; see also White, 126 S.Ct. at 2414-15. The only element in dispute here is the last-that is, whether Ms. Montes has established the required causal nexus between her discharge and her consultation with counsel. To satisfy this element, a "plaintiff must show that the individual who took adverse action against [her] knew of the employee's protected activity," Williams v. Rice, 983 F.2d 177, 181 (10th Cir.1993), or that Ms. Mejia, the person allegedly harboring discriminatory animus, knew and used Mr. Grinnell, the person who effected the adverse action, "as a cat's paw to effect . . . her own biased designs." Young, 468 F.3d at 1253.
Ms. Montes runs into an insuperable obstacle in seeking to satisfy these standards, for her evidence that any superior at the Clinic was even aware of her meeting with counsel derives from a single hearsay statement. Ms. Montes asserts that Ms. Mejia became aware that she met with counsel regarding her claims of discrimination by way of a co-worker Mr. Martinez. Ms. Montes, however, submits only her own second-hand, hearsay account of the encounter between Mr. Martinez and Ms. Mejia as relayed by Mr. Martinez; unfortunately, we have before us no testimony from Mr. Martinez himself. Under our precedents, we are constrained to disregard such hearsay on summary judgment when, as here, there is a proper objection to its use and the proponent of the testimony can direct us to no applicable exception to the hearsay rule. See Appellee's Br. 60-61; Young, 468 F.3d at 1252.
Even if Ms. Montes had presented a prima facie case of retaliation, however, her claim would nonetheless fail at a later stage in the McDonnell Douglas analysis because she has not rebutted the Clinic's non-discriminatory reason for her termination. See Meiners, 359 F.3d at 1229. Indeed, Ms. Montes readily admitted that she was insubordinate, just as the Clinic claims. Of course, Ms. Montes seeks to show that the Clinic's proffered reason for firing her was really "subterfuge for [retaliation]." Young, 468 F.3d at 1250. But the only reason she advances suggesting that her termination was tainted with retaliatory animus was Ms. Mejia's purported awareness of her meeting with counsel. Even overlooking the hearsay issue and assuming such awareness, however, Ms. Montes presents no competent evidence from which a jury could infer that this information was ever relayed from Ms. Mejia to Mr. Grinnell, the supervisor who fired her; neither does she allege that Ms. Mejia influenced Mr. Grinnell's decision to terminate her in any way so as to make him her "cat's paw." Id. at 1253. Without some facts along one of these lines, one might conclude that she was retaliated against only by indulging in impermissible speculation. See Truck Ins. Exch. v. MagneTek, *1177 Inc., 360 F.3d 1206, 1216 (10th Cir.2004).
* * *
We do not question that the Clinic may have been an unpleasant place to work for the plaintiffs, but there is insufficient evidence in the record before us from which a jury might reasonably conclude that the Clinic's conduct was the result of unlawful discrimination rather than hard-nosed business decisions necessitated in some instances by economic pressures. Neither can we overlook the absence of evidence in this record establishing the timeliness of many plaintiffs' claims. For these reasons, the district court's judgment is
Affirmed.
NOTES
[1] Two other individuals who were plaintiffs in the district court are not before us in this appeal Josefa C. Diaz elected not to appeal and Angelica Nunez was dismissed from this litigation prior to our decision.
[2] None of the plaintiffs has alleged any Title VII violation after his or her termination in the form, say, of unlawful retaliatory conduct.
[3] The record citations identifying the relevant dates for each plaintiff are as follows: Ms. Davila, Appellants' App. at 68, 71-72; Ms. Erazo, id. at 132, 136; Ms. Escobedo, id. at 174, 465; Mr. Garcia, id. at 196, 206; Ms. Hopkins, id. at 238; Ms. Jaramillo, id. at 247-48, 274; Ms. Montes, id. at 308, 312; Mr. Vargas, id. at 353, 357. Unless otherwise indicated, all record citations to the appendix are to the appellants' appendix ("App.").
[4] The district court concluded that Ms. Hopkins's charge was filed on March 3, 1999, because the defendants' summary judgment brief identified March 3, 1999, as the filing date against its interest. The actual filing date as identified on the charge itself is November 3, 1999. Because plaintiffs did not include any of the summary judgment papers in the appellate record and did not advocate our acceptance of the filing date deemed by the district court on appeal, we conclude that Ms. Hopkins's charge was filed on November 3, 1999, as indicated by the "received" stamp on the charge.
[5] Ms. Jaramillo was transferred to a different department on this date, not terminated. However, for our purposes, that fact is inconsequential because she stated that she was not subject to any harassment after the transfer. App. at 247-48, 271.
[6] This debate is not confined to the Title VII context but extends to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") context as well. Neither is the commonality of this problem a surprise given that "the filing provisions of the ADEA and Title VII are virtually in haec verba, the former having been patterned after the latter." E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 123-124, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (quotation omitted); compare 29 U.S.C. § 626(d), with 42 U.S.C. § 2000e-5(e)(1). For this reason, we occasionally cite and find instructive the cases construing the ADEA's filing requirements together with those construing Title VII's filing regime.
[7] Reflecting Congress's wish that claims be resolved locally and voluntarily when possible, state agencies that satisfy statutory and regulatory criteria ordinarily must be afforded the opportunity to first process claims of discrimination. See 42 U.S.C. § 2000e-5(c); see also 29 C.F.R. § 1601.70; id. § 1601.80 (identifying the CCRD as such a state agency). Title VII's charge filing provision accommodates this deferral requirement by extending the time period required to file a charge with the EEOC from 180 to 300 days where the aggrieved person initially instituted proceedings with such a state agency. See 42 U.S.C. § 2000e-5(e)(1).
[8] Compare Casavantes v. Cal. State Univ., Sacramento, 732 F.2d 1441, 1443 (9th Cir.1984) (concluding that under Title VII an intake questionnaire constituted a charge because it met the EEOC regulations governing the substantive content of a charge); with Dorn v. Gen. Motors, 131 Fed.Appx. 462, 470 n. 7 (6th Cir.2005) (unpub.) (ruling that the ADEA requires "a formal charge, not an inquiry or complaint").
[9] Compare Holowecki v. Fed. Express Corp., 440 F.3d 558, 568-69 (2d Cir.2006) (holding an intake questionnaire to constitute a charge under the ADEA upon application of the "manifestation of intent" test although the EEOC did not consider the questionnaire to be a charge and the aggrieved person subsequently filed a formal charge); with Bost v. Fed. Express Corp., 372 F.3d 1233, 1240-41 (11th Cir.2004) (applying the "manifestation of intent" test in the ADEA context and also considering the EEOC's perception of the document, the subjective intent of the aggrieved person, and the content of the questionnaire form); Diez v. Minn. Mining & Mfg. Co., 88 F.3d 672, 676-77 (8th Cir.1996) (same); Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542-44 (7th Cir.1988) (same). But see Edelman v. Lynchburg Coll., 300 F.3d 400, 404-05 (4th Cir.2002) (not applying the "manifestation of intent" test and holding a letter to be a charge under Title VII because it met the EEOC's charge-content regulations and the aggrieved party subjectively believed it to be a charge, although the EEOC did not).
To be sure, the Court recently granted certiorari to resolve a circuit split regarding whether and under what circumstances an "intake questionnaire" can qualify as a charge under the ADEA. See Fed. Express Corp. v. Holowecki, ___ U.S. ___, 127 S.Ct. 2914, 168 L.Ed.2d 242 (2007). Although the statutory regime is different, the Court's resolution of that question promises to offer at least some help in the Title VII context as well, given the parallel filing requirements. See Commercial Office Prods., 486 U.S. at 123-124, 108 S.Ct. 1666. For now, however, legally speaking we are where we are.
[10] The Clinic argues in passing that plaintiffs may not rely on Edelman's relation-back doctrine because it applies only to the "lay complainant," not plaintiffs represented by counsel. Appellee's Br. 23. Because application of the doctrine would not counsel for a different result, we assume (without deciding) that the doctrine applies in this case.
[11] See also Moore's Federal Practice § 9.04[5] (3d ed. 2006) ("Pleading conditions precedent is not a requirement of subject matter jurisdiction, and therefore the defense [of nonperformance or nonoccurrence of a condition precedent] may be waived.").
[12] On first blush, the D.C. Circuit appears to abide by the contrary rule. See Smith-Haynie v. District of Columbia, 155 F.3d 575, 577 (D.C.Cir.1998) ("In Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir. 1982), we said that a statute of limitations defense under Title VII is an affirmative defense. . . ."). However, Gordon did not hold that the Title VII limitations period is an affirmative defense; rather, it referred to the filing period as something "like a statute of limitations" which "generally create affirmative defenses." See Gordon, 675 F.2d at 360. Furthermore, Gordon's discussion came in response to the defendant's (rejected) claim that the filing period was jurisdictional and did not purport to address, let alone decide, whether compliance with the filing deadline was a condition precedent or an affirmative defense.
[13] Plaintiffs have not argued waiver, estoppel, or that the doctrine of equitable tolling should apply to cure their tardy filings, and based on the facts before us, we see nothing demanding their application. See, e.g., Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir.1996) (recognizing equitable tolling in the Title VII context where the plaintiff has been deceived, "lulled into inaction," "actively misled," or "has in some extraordinary way been prevented from asserting his or her rights" (quotations and citations omitted)).
[14] Rather, each housekeeper who was told to speak English was instructed to do so only while working in the operating room department and was advised that the policy did not apply during breaks. See App. 109, 135, 159, 176, 259.
[15] Courts have primarily addressed the effect of an English-only policy under a disparate impact theory. See, e.g., Maldonado, 433 F.3d at 1303-07; Garcia v. Spun Steak Co., 998 F.2d 1480, 1485 (9th Cir.1993); Gloor, 618 F.2d at 270; E.E.O.C. v. Synchro-Start Prods., Inc., 29 F.Supp.2d 911, 912 (N.D.Ill.1999). In those cases, the courts were called to decide issues not raised before us specifically, whether an English-only policy effected a disparate impact on Hispanic workers. Conversely, of course, a disparate impact theory does not require proof of discriminatory animus like the hostile work environment theory under which Ms. Escobedo chose to proceed in this case. Because our analysis is confined to a hostile work environment claim in which animus is required, we offer no views regarding what might have been the appropriate outcome of this case under a disparate impact theory.
[16] To be sure, one might question the asserted "business necessity" of an English-only policy if the employer knowingly hires employees who lack English skills. The record before us, however, indicates that the Clinic became aware of communication problems in the operating room only after Ms. Escobedo was hired and, in fact, subsequently instituted a requirement that any housekeeper seeking placement in the operating room department first demonstrate English proficiency. See App. at 135.
[17] Ms. Escobedo might still be afforded redress under a hostile work environment theory if untimely incidents, in conjunction with timely incidents, created a hostile work environment. See Duncan v. Manager, Dep't of Safety, 397 F.3d 1300, 1309 (10th Cir.2005). To do so, however, Ms. Escobedo would have to demonstrate that the untimely incidents were so related by type, frequency, and perpetrator to the English-only instruction or increased work assignments that they fairly could be construed to be part of the same unlawful employment practice. See Morgan, 536 U.S. at 116-17, 120, 122 S.Ct. 2061. This Ms. Escobedo has not even attempted to do, and so we deem any argument along these lines waived. See Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir.1994). Even if we were able to overcome this hurdle, after independently reviewing the untimely incidents identified by Ms. Escobedo, we see no common thread between them and the timely incidents alleged by Ms. Escobedo sufficient to permit their use here.
[18] But showing that the employer's proffered non-discriminatory reasons are false will not "`always' be adequate to sustain . . . liability." Young, 468 F.3d at 1250 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Rather, "the factfinder must be able to conclude, based on a preponderance of the evidence, that discrimination was a determinative factor in the employer's actions simply disbelieving the employer is insufficient." Id. (quotation omitted).
[19] Ms. Escobedo also seeks relief under a constructive discharge theory. Supporting her claim, she asserts that the hostile work environment she endured was so abusive that it left her no choice but to resign. The Supreme Court has instructed that "[a] plaintiff who advances such a compound claim [ a constructive discharge claim premised on a hostile work environment ] must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Penn. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); see also E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 805-06 (10th Cir.2007) (same). As presented to us, however, this claim is inexorably linked to her hostile work environment claim; for the same reasons that claim has fallen, so too must this one.
[20] Mr. Garcia claims that the abusive work environment led to his constructive discharge. But Mr. Garcia's constructive discharge claim, like Ms. Escobedo's, relies entirely on the merits of his hostile work environment claim and fails with it. See supra p. 1174 n. 19. Similarly, Mr. Garcia seeks relief under a disparate treatment theory alleging that the Clinic discriminated against him by assigning excessive work. But this claim presents the same legal question raised by Ms. Escobedo and it fails for the same reasons. See supra pp. 1172-74.
[21] Because Ms. Montes's only timely allegations relate to her retaliation claim, we include the facts relevant to that claim only; as the Court noted in Morgan, untimely discrete acts of discrimination may not be considered, and untimely acts constituting part of a hostile work environment claim may be considered only if the claim includes at least one timely act. See Morgan, 536 U.S. at 114, 118, 122 S.Ct. 2061.
| {
"pile_set_name": "FreeLaw"
} |
423 S.E.2d 863 (1992)
188 W.Va. 254
Anthony WILSON, Plaintiff Below, Appellee,
v.
LONG JOHN SILVER'S, INC., Defendant Below, Appellant.
No. 20889.
Supreme Court of Appeals of West Virginia.
Submitted September 15, 1992.
Decided October 23, 1992.
*864 Mark H. Hayes, Huddleston, Bolen, Beatty Porter. & Copen, Huntington, for appellee.
John E. Jenkins, Jr., Evan H. Jenkins, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for appellant.
BROTHERTON, Justice:
The appellant, Long John Silver's, Inc., appeals from the May 29, 1991, and July 15, 1991, orders of the Circuit Court of Cabell County which denied the appellant's motion for summary judgment, a directed verdict, and a judgment notwithstanding the verdict. The issue is whether the Long John Silver's employment manual was a unilateral contract of employment which included a promise of progressive discipline, which was not done, instead of immediate termination of employment. Wilson filed suit against Long John Silver's for breach of an alleged employment contract. On May 20, 1991, the Cabell County jury awarded Wilson $41,344.00 in damages for the breach of an employment contract. For reasons stated below, we reverse the May 29, 1991, order of the Cabell County Circuit Court.
The appellee, Anthony Wilson, was employed as a manager of a Huntington, West Virginia, Long John Silver's Seafood Shoppe. He was discharged on August 2, 1988, after an employee reported that Wilson was "horseplaying" in the kitchen of the Long John Silver's shoppe, including wrestling and punching with employees while on duty. Long John Silver's argues that such actions are very dangerous because of the kitchen equipment with stoves, hot grease, knives, and machinery. They also point out that such actions do not present a professional image to customers who might glimpse the "horseplay" from the dining room.
Long John Silver's director of operations, Vernon Shaulis, received a phone call from one of the employees at Wilson's shoppe, Ms. Meadows, complaining of the horseplay. Ms. Meadows stated that, over the preceding six months, Wilson had been wrestling with other shoppe employees, and hitting and punching them as well. Meadows also told Shaulis that because of Wilson's behavior she and other employees were going to quit. Shaulis visited the store and interviewed several other employees, who confirmed the story. Shaulis then contacted the personnel officer at Long John Silver's corporate headquarters in Lexington, Kentucky. The personnel office reviewed the evidence with their in-house legal department and confirmed that Shaulis could discharge Wilson at his discretion. Thus, on August 2, 1988, Shaulis met with Wilson and asked him if the employees' statements were true.[1] The transcript does not provide Wilson's response. Shaulis then issued Wilson a written notice of unsatisfactory performance which terminated his employment.
Long John Silver's decision to discharge the appellee was based on their Administration Policies and Procedures Manual (manual). The manual stated that "the supervisor should determine what corrective action is appropriate based upon the circumstances and the severity and "requency of the violation." A separate section in the manual contained a policy/procedure entitled "Employee Discipline." This policy/procedure set forth a suggested system of progressive discipline in various steps, beginning with a verbal warning and ending with termination with a written note of *865 unsatisfactory performance. Some situations, however, called for termination on the first offense.
Progressive Discipline Section. There are some circumstances which warrant discharge for the first offense. Some of the infractions are listed in Personnel 5-03.
Personnel 5-03 provides:
3.1 Immediate Discharge
Certain actions that violate the philosophy of the Company and interfere with normal operations may warrant "immediate" discharge. Such circumstances include, but are not limited to:
* * * * * *
Gambling, fighting, or provoking a fight on Company premises.
* * * * * *
Engaging in any activity which may result in bodily injury to fellow employees or guests or damage to Company property.
Long John Silver's argues that Wilson's actions, although just horseplay, constituted engaging in an activity which could result in bodily injury or property damage. Furthermore, Long John Silver's also points out that on April 8, 1986, Wilson had received a written warning with respect to the same type of conduct. That notice stated:
... There is not to be any squirting of each other in the shoppe with squirt guns or other forms of spray bottles at any time. We are professional people and are to conduct ourselves as such at all times. Our guests do not visit us to view such duties. Also, horseplay can get someone hurt.
* * * * * *
Failure to demonstrate a reasonable and diligent effort to improve performance may result in termination prior to any target date set forth above. The next incident or similar incident may also result in immediate termination. (Emphasis added.)
Wilson signed this notice on April 8, 1986.
By contrast, Wilson contends that the manual created a unilateral employment contract and the general provisions which provided for progressive discipline should have been followed. His allegations involving a breach of that contract center around Long John Silver's failure to follow its own policies and procedures requiring (1) a complete investigation of any incident, (2) consistent and equitable disciplinary measures, and (3) exploration of alternative discipline short of termination.
This Court enunciated the rule regarding employee handbooks and unilateral employment contracts in Cook v. Heck's, Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986). Generally, employment in West Virginia is considered to be at will unless an exception applies. At will employment "may be terminated, with or without cause, at the will of either party." Id. at 372, 342 S.E.2d at 457 (citation omitted). One of the exceptions to this rule is that where contractual or statutory provisions exist to the contrary, or where public policy dictates a different result, an employee may not be terminated at will. Id. In Cook, this Court held that "[c]ontractual provisions relating to discharge or job security may alter the at will status of a particular employee." Id. at syl. pt. 3. Cook recognized that "[a]n employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons." Id. at syl. pt. 6. We can find no relevant statutory provision or public policy reasons which would limit the employment at will relationship. Thus, we must determine if a contractual reason exists to prevent termination at will.
In Cook, we discussed what was sufficient to modify the employment at will relationship:
The inclusion in the handbook of specified discipline for violations of particular rules accompanied by a statement that the disciplinary rules constitute a complete list is prima facie evidence of an *866 offer for a unilateral contract of employment modifying the right of the employer to discharge without cause.
342 S.E.2d at 459. In Suter v. Harsco Corp., 184 W.Va. 734, 403 S.E.2d 751 (1991), this Court further defined the unilateral contract theory by stating that the handbook must contain a "very definite" promise of job security. Id. 403 S.E.2d at 754. In our most recent case, Adkins v. Inco Alloys International, Inc., 187 W.Va. 219, 417 S.E.2d 910 (1992), the Court stated that any claim based upon an employee manual or policy must be established by clear and convincing evidence. "Where an employee seeks to establish a permanent employment contract or other substantial employment right, either through an express promise by the employer or by implication from the employer's personnel manual, policies, or custom and practice, such claim must be established by clear and convincing evidence." Id. at syl. pt. 3.
Our review of the manual reveals that it did not include any statement proclaiming that the manual was not a contract of employment. However, as Long John Silver's points out, the statements of "Circumstances Warranting Discharge" and "Progressive Discipline" situations did not constitute complete lists since the sections stated "[s]uch infractions include, but are not limited to: ..." and "[s]uch circumstances include, but are not limited to:...," respectively. We cannot find any clear and convincing evidence that the manual contained a promise, let alone a definite promise, sufficient to modify the employment at will relationship.
However, even assuming that the Long John Silver's manual modifies the employment at will relationship to create a contract of employment, Wilson's argument fails to account for the "Immediate Discharge" section which permits immediate discharge upon a specific finding of fighting or causing danger to employees or damage to property. It is irrelevant whether the employment manual creates a unilateral contract which alters the at will relationship when the employee was properly fired without recourse to progressive disciplinary steps provided for in the manual. Wilson was not entitled to progressive discipline because the rule he violated called for immediate discharge, regardless of whether the manual was a contract or not. There is no question that punching fellow employees or wrestling on the floor of a kitchen, surrounded by hot. grease and assorted kitchen utensils would constitute "activities which may result in bodily injury to fellow employees ... or damage to Company property." However, if an employee violated another company rule which did not call for immediate discharge, yet was terminated without the progressive disciplinary steps provided for in the manual, then the issue of whether the manual provided a unilateral contract of employment altering the employment at will relationship may be relevant.
"Generally, the existence of a contract is a question of fact for the jury."[2]Cook v. Heck's, 342 S.E.2d at syl. pt. 4. In Cook, we pointed to syllabus point 5 of Hallauer v. Fire Association of Philadelphia, 83 W.Va. 401, 98 S.E. 441 (1919), which states:
Though the interpretation of contracts when made and free from ambiguity is a question for the court, the determination of whether the facts proved or admitted are such as to constitute an agreement binding the parties generally is within the province of the jury to ascertain from facts submitted for their consideration and judgment.
Id. at 98 S.E. at 457. In this case, however, there is no need for this question to go to the jury. Where an employment manual provides for immediate discharge for a specific reason, it is irrelevant whether the handbook creates a unilateral contract when that valid, specific reason exists for immediate discharge without recourse to progressive disciplinary steps.
The appellee's secondary argument is that no investigation by Mr. Shaulis took *867 place as required by the manual and, therefore, even immediate discharge for the specified reasons was invalid. This argument is without merit. Mr. Shaulis questioned several employees prior to discussing termination with Headquarters. Headquarters gave him the authority to discharge at his discretion, but did not instruct him to. Wilson was terminated after being questioned. We believe an adequate investigation was performed.
Rule 50 of the West Virginia Rules of Civil Procedure sets forth the necessary elements of a directed verdict motion. Rule 50(a) provides:
Motion for directed verdict: When made; effect.A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a direction verdict is effective without any assent of the jury.
In Powell v. Time Ins. Co., 181 W.Va. 289, 382 S.E.2d 342 (1989), we ruled that when the plaintiff's evidence, viewed in the light most favorable to him, fails to establish a prima facie right of recovery, the court should direct a verdict in favor of the defendant. Even after viewing the evidence in a light most favorable to Mr. Wilson, we believe he failed to establish a prima facie right of recovery. Consequently, the trial court should have granted the directed verdict motion.
Accordingly, we rule that the Circuit Court of Cabell County erred in denying the appellant's motion for a directed verdict.
Reversed.
NOTES
[1] At trial, Wilson later admitted that the wrestling and punching was going on in the shoppe and that he could understand why the petitioner would be worried about someone getting hurt.
[2] In Suter, supra, the dissent argued that under the facts of that case, the employer's determination that the employee was engaged in the alleged conduct should be reviewed by the jury. 184 W.Va. at 743, 403 S.E.2d at 760. However, the majority let stand the employer's determination of fault and merely examined whether the handbook created a definite promise of job security.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-2238
MICHAEL H. BOSTRON,
Plaintiff - Appellant,
and
MAURICE R. DUBOIS; JOHN E. BOYER,
Plaintiffs,
versus
KENNETH S. APFEL, Commissioner of Social
Security,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Alexander Harvey II, Senior District
Judge. (CA-97-3154-H)
Submitted: November 22, 2000 Decided: January 18, 2001
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael H. Bostron, Appellant Pro Se. Larry David Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael H. Bostron appeals the district court’s order granting
judgment as a matter of law to the Commissioner in Bostron’s civil
action in which he alleged employment discrimination claims. 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. See Bostron v. Apfel, No. CA-97-3154-H (D. Md.
July 19, 2000). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
68 F.Supp.2d 602 (1999)
SMITH-BERCH, INC., trading as the White Marsh Institute
v.
BALTIMORE COUNTY, Maryland, et al.
No. CIV. CCB-98-1821.
United States District Court, D. Maryland.
August 9, 1999.
*603 *604 *605 *606 Ellen M. Weber, Washington, DC, for Plaintiff.
Carol Saffran-Brinks, Assistant County Attorney, Baltimore County Office of Law, Towson, MD, for Defendant.
MEMORANDUM
BLAKE, District Judge.
Now pending before the court is Defendants' motion to dismiss or, in the alternative, for summary judgment. This case centers on Plaintiff's contention that, in denying Plaintiff a zoning permit for its proposed methadone treatment program, Defendants violated Plaintiff's rights under the Americans With Disabilities Act ("ADA") and the Due Process Clause of the Fourteenth Amendment.[1] In their motion, Defendants respond by asserting a variety of immunity and substantive defenses that they contend require the court to enter judgment in their favor. This matter has been fully briefed, and oral argument was heard on July 23, 1999. For the reasons that follow, the court will deny Defendants' motion as to Plaintiff's ADA claim, but grant Defendants' motion as to Plaintiff's due process claim.
*607 BACKGROUND
The White Marsh Institute ("WMI") was established in March 1997 by Walter Smith and Neal Berch for the purpose of providing methadone treatment services to individuals with opiate addiction living in the White Marsh area of Baltimore County. Compl. ¶¶ 10, 32. Although controversial, methadone treatment is widely recognized as an effective method for combating the effects of opiate dependence. See Pl.'s Opposition, Ex. 10 (statement of Dr. D'Lugoff). Only one other methadone treatment program currently operates in Baltimore County, the Awakenings Drug Treatment Program located in Timonium, which has operated in that location since 1991. Compl. ¶ 21. According to Plaintiff, since 1989 other methadone treatment programs have attempted to locate in the County, but none has succeeded. Id. ¶ 30. Plaintiff asserts that there is a pressing need for additional methadone treatment facilities to address the County's "escalating heroin problem." Id. ¶¶ 5, 19, 33.[2] Indeed, an official from the State Methadone Authority, in response to WMI's application for state certification, agreed that "it appears that there is sufficient need in the White Marsh area to support additional narcotic treatment in Baltimore County." Pl.'s Opposition, Ex. 2, Att. H.
A. Methadone Program Licensing Requirements:
To operate lawfully in Maryland, a methadone treatment facility must be licensed by the federal Food and Drug Administration and the federal Drug Enforcement Administration. It also must be certified by three separate agencies of the Maryland Department of Health and Mental Hygiene: the Licensing and Certification Administration, the Alcohol and Drug Abuse Administration (of which the State Methadone Authority is a part), and the Division of Drug Control. Id. ¶¶ 24-25. These three state agencies establish and enforce rules and regulations governing the operation of methadone treatment programs throughout Maryland. See Def.'s Motion, Ex. 8 (Alcohol and Drug Abuse Administration letter and order explaining certification procedures); Pl.'s Opposition, Ex. 2 (statement of Neal Berch). While WMI acknowledges that it has not yet fully completed the state certification process, see Pl.'s Opposition, p. 12 n. 4, it has received the requisite federal licenses and been approved by "at least two" state agencies. See Def.'s Motion, Ex. 4 (WMI's July 1997 petition for special hearing). WMI cannot complete the state certification process until it receives local zoning approval. See Def.'s Reply, p. 10. Whether WMI has fully complied with the requisite state procedures for operating a methadone treatment facility is irrelevant for purposes of resolving this case, however, as WMI does not allege in its lawsuit that it was improperly denied state certification and the County did not deny WMI's petition for a zoning permit on these grounds.[3]
The basis for WMI's claims in this case is the allegedly discriminatory decision made by various Baltimore County departments and officials to deny it a use permit pursuant to the County's zoning regulations. See Compl. ¶¶ 1, 3, 107, 110, 115. Section 102.1 of the Baltimore County Zoning Regulations provides that "[n]o land shall be used or occupied and no building or structure shall be erected, altered, located or used except in conformity with these regulations...." See also Balto. County Code § 26-116 (providing for county zoning regulations "to regulate and *608 restrict ... the location and use of buildings, structures, and land for trade, industry, residence, or other purpose"). The Baltimore County Department of Permits and Development Management ("Permits Department") is responsible for administering and enforcing the County's zoning regulations. Id. § 2-56; Compl. ¶ 13. Thus, in order to operate a methadone treatment program in Baltimore County, in addition to securing federal and state approval, WMI must obtain a permit from the Permits Department indicating that the proposed use fully complies with the applicable zoning regulations. See B.C.Z.R. § 500.1.
B. The Baltimore County Zoning Process:
In March 1997, WMI located office space for its program at 11450 Pulaski Highway in a small strip shopping center hosting a variety of professional and retail establishments, including a law office, an insurance office, a physical therapist's office, a barber shop, a dry cleaners, and a deli. Compl. ¶ 34; Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 2. Surrounding businesses included a sanitary landfill, an automobile repair shop, a self-storage facility, and an adult video store. Compl. ¶ 35. According to Plaintiff, the nearest residential neighborhood was 1.5 miles away. Id. ¶ 36.
The Pulaski Highway property that WMI sought to occupy for its methadone treatment facility was designated on the County's zoning map as a B.R.-A.S. (Business, Roadside; Automotive Services) zone. Id. ¶ 37; Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 2. A B.R. zone is a highly intensive business zone, permitting a large variety of uses as of right, including all of the uses permitted in B.M. (Business, Major) and B.L. (Business, Local) zones. See B.C.Z.R. §§ 230, 233, 236; see also Hayfields, Inc. v. Valleys Planning Council, Inc., 122 Md.App. 616, 638, 716 A.2d 311, 322 (1998) ("Within any given zoning classification, the [B.C.Z.R.] prescribes two types of uses: certain uses are permitted as of right and others are conditionally permissible"). Relevant to this proceeding, among the uses permitted in a B.R. zone as of right are "offices," which includes "medical offices," and "medical clinics." See B.C.Z.R. §§ 101 (definitions), 230 (B.L. zone requirements). A "medical office" is defined by the County zoning regulations, in pertinent part, as "[a] place for the treatment of outpatients by one or more medical practitioners." Id. § 101. A "medical practitioner," in turn, is defined in pertinent part as "[a] physician ... psychologist ... nurse ... or other similar health professional licensed or certified by the state." Id. A "medical clinic," which is expressly (and somewhat confusingly) excluded from the definition of "medical office," is defined in pertinent part as encompassing "ambulatory care centers" and "diagnostic centers." Id.
WMI contends that it fits the definitions of both "medical office" and "medical clinic" because it would have been staffed by a licensed psychiatrist who served as medical director, a licensed physician who performed patient examinations, and two licensed nurses who dispensed methadone to the program's clients, who would have been treated on an outpatient basis. Defendants do not dispute WMI's description of the intended staffing and operation of its proposed methadone treatment program. Accordingly, WMI claims that it should have been permitted as of right to use the Pulaski Highway property for its program. See Compl. ¶¶ 43-44; Pl.'s Opposition, p. 3.
In addition to "medical office" and "medical clinic," there is another land use classification relevant to this dispute: "community care center." Although medical offices and medical clinics are permitted as of right in a B.R. zone, a "community care center" is permitted in a B.R. zone only if its sponsor first obtains a "special exception" from the Baltimore County Zoning Commissioner. See B.C.Z.R. §§ 230.13, 502 (setting forth special exception *609 requirements and procedures). A "community care center" is defined by the zoning regulations, in pertinent part, as
[a] small-scale facility, sponsored or operated by a private charitable organization or by a public agency and licensed by the Maryland State Department of Health and Mental Hygiene or by the Maryland State Department of Social Services, for the housing, counseling, supervision, or rehabilitation of alcoholics or drug abusers ... who are not subject to incarceration or in need of hospitalization.
Id. § 101 (emphasis added). One of the central issues in this case is whether WMI constitutes a "medical office" or a "community care center." As explained below, the Deputy Zoning Commissioner who conducted WMI's special zoning hearing concluded that WMI constituted a community care center. See Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 7. If considered a community care center, WMI is subject to the following additional requirements imposed for obtaining a "special exception":
Before any special exception may be granted, it must appear that the use for which the special exception is requested will not:
A. Be detrimental to the health, safety or general welfare of the locality involved;
...
C. Create a potential hazard from fire, panic or other danger;
...
B.C.Z.R. § 502.1 (quoting relevant portions only). The Zoning Commissioner (or Deputy Zoning Commissioner[4]) makes these determinations following a public hearing. Id. §§ 500.5. The commissioner's decision to grant or deny a special exception, based on the above factors, is appealable to the Baltimore County Board of Appeals. Id. §§ 500.10, 502. The Board of Appeals' decision affirming or reversing the commissioner, in turn, is appealable to the Maryland Circuit Court for Baltimore County. Md. Ann.Code art. 25A, § 5(U).
In this case, after leasing the Pulaski Highway property, Mr. Smith, acting on WMI's behalf, applied to the Permits Department for a use permit. Initially, Mr. Smith did not inform the department that he was seeking a permit for a methadone treatment program. Instead, he indicated only that he was seeking a permit for an "outpatient counseling center." Based on this information, the department issued a permit authorizing the requested use. After receiving the permit, however, Mr. Smith requested that it be amended to identify the approved use as being a methadone treatment program. Compl. ¶¶ 52-53; Pl.'s Opposition, Ex. 4 (statement of Walter Smith). In response, the Permits Department withdrew the permit and told Mr. Smith that the County had a "special policy" regarding methadone facilities and that a special hearing would have to be held to determine if WMI qualified as a community care center. Compl. ¶ 53. The department did not inform Mr. Smith that WMI might be able to qualify as a medical office or medical clinic. Id. ¶ 58.
Mr. Smith requested a written copy of the County's "special" methadone policy, but none was forthcoming. Id. ¶ 53. Indeed, the County's zoning regulations contain no such policy. In fact, the zoning regulations contain no provisions whatsoever specifically defining and addressing drug treatment programs of any type. The zoning regulations clearly provide, however, that the Zoning Commissioner is authorized to conduct hearings "as shall, in his discretion, be necessary for the proper enforcement of all zoning regulations, subject to the right of appeal to the County Board of Appeals ...." B.C.Z.R. § 500.7. Apparently pursuant to this authority, the County requires proposed drug treatment programs that offer methadone *610 therapy as opposed to counseling alone "to undergo public hearing to determine category of use and/or to obtain special exception as a community care center." Def.'s Motion, p. 17; see also Def.'s Reply, Ex. 2 (affidavit of Carl Richards, Permits Department Zoning Supervisor). The asserted rationale for this policy is that "[t]he introduction of methadone ... create[s] uncertainty as to which category [i.e., `medical office' or `community care center'] the operation fits." Def.'s Motion, p. 15. In addition, the County contends that there are "unique risks associated with methadone dispensation," in particular, the problem of methadone diversion. Id., pp. 17-19, Ex. 7 (federal DEA report discussing diversion problem). In contrast to its "special policy" for methadone clinics, the County admits that it routinely classifies non-methadone drug treatment facilities as "medical offices" and permits them to operate as of right in B.R. zones without undergoing a public hearing. See, e.g., Def.'s Reply, pp. 12-13.[5]
After being denied a use permit by the Permits Department, on April 22, 1997, WMI, through its counsel, filed a petition for a special exception under the "community care center" classification. Compl. ¶ 61. In order to satisfy the requirements for a "community care center," WMI entered into an agreement with Pregnancy AID Centers, Inc., a non-profit organization that provides a variety of services to pregnant, drug-addicted women, to have that organization "sponsor" WMI's methadone treatment program. Id. ¶ 60.[6] The mandatory hearing on WMI's special exception petition, see B.C.Z.R. § 500.5, originally was scheduled for June 2, 1997. Compl. ¶ 61. The hearing was postponed, however, at the request of citizens who opposed WMI's plans to operate a methadone clinic at the Pulaski Highway location. Compl. ¶ 62. WMI's counsel consented to the postponement. Def.'s Reply, Ex. 6 (affidavit of Timothy M. Kotroco, Baltimore County Deputy Zoning Commissioner).
C. Baltimore County Opposition to Methadone Programs:
Plaintiff contends that a "firestorm of opposition erupted" when local residents, civic organizations, and politicians learned about WMI's plans to locate its methadone treatment facility in the White Marsh area. Compl. ¶ 63. Furthermore, WMI asserts that this opposition was motivated by "bias and animus toward the clients who would be served." Id. While the evidence submitted by WMI in support of this assertion is not as inflammatory or discriminatory as WMI suggests, see Pl.'s Opposition, Ex. 6 (collected letters), most of the letters express opposition to the facility as being not in "the best interest of the community." Other letters express concerns about declining property values and lack of adequate police protection; still others suggest that Franklin Square Hospital would be a more appropriate location for the facility; and one letter questions the philosophy and cost-effectiveness of methadone treatment programs in general.[7]
*611 Hoping to relieve the community's concerns about their proposed facility, in early June 1997 Mr. Smith and Mr. Berch convened a community meeting in a local church. Compl. ¶ 65. According to the Complaint, more than fifty residents and elected officials, including a representative of Baltimore County Councilman Vince Gardina, attended the meeting. Id. WMI claims that the attendees "expressed their strong opposition to WMI, based on their bias and animus toward the individuals who would be served" and that the "language and views expressed by some were so offensive that, at one point, the minister of the church reminded the audience that they were in a house of God." Id.
The fact that numerous local residents who attended the meeting told Mr. Smith and Mr. Berch that they objected to WMI's proposed methadone treatment facility, regardless of the basis for their opposition, does not necessarily demonstrate that the County's ultimate decision to deny WMI a use permit for the Pulaski Highway property was discriminatory. On the other hand, the fact that Councilman Gardina's representative also publicly expressed the Councilman's opposition to the facility, Compl. ¶ 66, is relevant, because as a member of the County Council, Councilman Gardina exercises some meaningful measure of power and influence over the County's zoning process. See, e.g., Balto. County Charter § 522. Nonetheless, Plaintiff has submitted no evidence showing that Councilman Gardina's opposition to WMI's proposed location was motivated by bias towards drug-addicted individuals[8] or that the Councilman is unalterably opposed to the siting of any new methadone treatment facilities in Baltimore County.
Following the community meeting, WMI's counsel began inquiring into whether WMI could occupy the Pulaski Highway property "as of right" as either a "medical office" or "medical clinic." Compl. ¶ 70. Pursuant to the County's "special" methadone policy, the Permits Department informed him that a special hearing would be necessary to determine whether WMI qualified under either of the two classifications. Id. ¶ 71. Accordingly, on July 8, 1997, WMI's zoning petition was amended to add a request for a special hearing to determine whether WMI qualified for a use permit as of right under either the "medical office" or "medical clinic" classification. See Def.'s Reply, Ex. 5 (letter from WMI's counsel to Baltimore County Zoning Office). The combined hearing on WMI's request to be granted a use permit as of right as a "medical office" or "medical *612 clinic" as well as its earlier request for a special exception as a "community care center" was scheduled for September 9, 1997. Compl. ¶ 73.
Before WMI's hearing took place, a number of other relevant events occurred. First, on July 7, 1997, the Baltimore County Council passed Resolution No. 78-97, requesting the Baltimore County Planning Board
to consider proposing amendments to the Baltimore County Zoning Regulations in order to define methadone clinics and drug treatment centers, to specify the zone or zones in which such clinics or centers might be permitted, and to establish standards for the location, design and operation of methadone clinics and drug treatment centers in Baltimore County.
Def.'s Motion, Ex. 3.[9] The Council believed that such amendments were necessary due to the current regulations' lack of definitions for "methadone clinic" and "drug treatment center" and the resulting ambiguity in how methadone and non-methadone treatment centers should be classified for zoning purposes. As the Council pointed out, "certain types of drug treatment centers may fall within the classification of medical clinics or community care centers under the Zoning Regulations." Id.[10] One undesirable consequence of this ambiguity, in the Council's view, is that drug treatment centers, including methadone clinics, may be permitted to operate in locations that are "inappropriately close to surrounding residential communities." Id. To date, however, no zoning amendments intended to resolve these perceived deficiencies have been proposed by the Planning Board or acted upon by the County Council. Pl.'s Opposition, pp. 9-10.
On July 8, 1997, Baltimore County Executive C.A. Dutch Ruppersberger, III, sent a letter to Martin P. Wasserman, the Secretary of the Maryland Department of Health and Mental Hygiene ("Department of Health"), notifying him of Resolution No. 78-97 and "respectfully request[ing] that no permits for methadone clinics be issued in Baltimore County until the Planning Board has proposed and the County Council recommends any changes to [the County's] zoning regulations pertaining to drug methadone clinics and drug treatment centers." Pl.'s Opposition, Ex. 7.[11] Mr. Ruppersberger's "hope" was that the Department of Health would impose a "moratorium on the issuance of permits for methadone clinics." Id.[12]
It does not appear that such a "moratorium" was ever imposed by the State Department of Health. Plaintiff alleges that Secretary Wasserman agreed during a *613 July 21, 1997 meeting with Baltimore County officials "to suspend approval of all such applications until this process was completed." See Pl.'s Opposition, Ex. 8 (August 1997 letter from County Executive Ruppersberger to Secretary Wasserman). Nevertheless, there is no evidence that the "moratorium" was actually enforced or that the state certification process was in fact suspended. See id. (indicating that proposed methadone treatment programs continued to be certified by State despite Secretary's pledge). Furthermore, WMI has not alleged that it was denied state certification as a result of this "moratorium." Indeed, according to WMI's petition for a special hearing, it has been certified by "at least two (2) state licensing agencies." Def.'s Motion, Ex. 4. Thus, any failure to be afforded the necessary state certification is not an issue in this case independent of the denial of County zoning approval.
What is at issue in this case is the County's failure to grant Plaintiff a use permit for WMI's proposed methadone treatment facility. Relevant to this issue is Mr. Ruppersberger's response upon learning that the State was continuing to certify methadone programs. In an August 8, 1997 letter to Secretary Wasserman, Mr. Ruppersberger reiterated his desire that the Department of Health suspend the state certification process until the County had completed its review of its zoning regulations. Pl.'s Opposition, Ex. 8. Significantly, he further informed the Secretary that
Baltimore County will resist, in the strongest of ways, the approval of these and any other centers where we have not had the opportunity for thorough review and evaluation of existing zoning regulations, which will properly define where the centers should be located.
Id. (referring in part to WMI) (emphasis added). This letter undoubtedly demonstrates the strength of Mr. Ruppersberger's opposition to methadone treatment programs locating in Baltimore County.
Another piece of evidence that is relevant to the County's allegedly unlawful refusal to issue WMI a use permit is the State Department of Health's so-called "consultation/approval" policy. The policy was instituted in 1993 when, in response to political pressure exerted by Baltimore County officials, Nelson J. Sabatini, the then-Secretary of the State Department of Health, assured Roger B. Hayden, County Executive Ruppersberger's predecessor, that he (Sabatini) would "not authorize the operation of any methadone program without consulting with and receiving the approval of the appropriate local county government officials." Pl.'s Opposition, Ex. 3 (letter dated March 1, 1993) (emphasis in original); Compl. ¶ 27. The "consultation/approval" policy is administered by the State Methadone Authority. Compl. ¶ 50. Defendants do not dispute Plaintiff's claim that no other state-licensed medical facility is subject to a similar procedure before locating in Baltimore County. Compl. ¶ 29.
On June 30, 1997, County Executive Ruppersberger sent a letter to Secretary Wasserman "requesting that [Secretary Wasserman] renew Mr. Sabatini's pledge to include local government at the time application is made to the State Health Department, so that everyone impacted by [proposed methadone] facilities may be given a chance to review the need and appropriateness of these programs." Pl.'s Opposition, Ex. 3 (emphasis in original). Mr. Ruppersberger's letter was written in response to information he had received indicating that the "consultation/approval" policy was not being followed by the state agencies involved in certifying three proposed methadone treatment programs in Baltimore County. Id. (the identity of the programs was not mentioned in the letter). After "requesting" that Secretary Wasserman reinstate the policy,[13] Mr. Ruppersberger *614 advised the Secretary that "notification should be directed to Dr. Michelle Leverett, who will then involve my office." Id.; see also Compl. ¶ 46 (identifying Dr. Leverett as the County's "contact person" for the "consultation/approval" procedure).
Accepting Plaintiff's contention that the Department of Health's "consultation/approval" policy was in force and was applied to WMI's application for state certification, Plaintiff nevertheless has neither alleged nor offered evidence to show that it was denied the necessary state certification as a result of the policy. In fact, the allegations contained in the Complaint reveal that Dr. Leverett, when contacted by both Plaintiff and the State Methadone Authority, approved WMI's proposed methadone treatment program. See Compl. ¶¶ 46-48, 50. Thus, while the existence of the policy may be evidence of the County's resistance to methadone clinics, nothing in the record supports a finding that Dr. Leverett or any other Baltimore County official directly "vetoed" or otherwise interfered with WMI's state certification pursuant to the "consultation/approval" policy.
One final piece of evidence that is relevant to the County's allegedly unlawful refusal to issue WMI a use permit is the position taken by Michael Gimbel, the Director of Baltimore County's Bureau of Substance Abuse, who allegedly opposes private, for-profit methadone clinics. Compl. ¶ 23. Mr. Gimbel, commonly referred to as Baltimore County's "drug czar," has publicly opined that private methadone treatment is a form of "legalized drug dealing" and has stated that the existing Timonium facility fully serves the need for methadone treatment in Baltimore County. Pl.'s Opposition, Ex. 2, Att. F.
D. WMI's Zoning Hearing:
Relying on all of the above-described evidence of the County's alleged discriminatory animus towards drug-addicted individuals, Plaintiff contends that "the County had already decided [WMI's] case several months before the September 9, 1997 zoning hearing." Pl.'s Opposition, p. 10. Essentially, Plaintiff argues that Resolution No. 78-97, the Ruppersberger letters, and the other expressions of official opposition to methadone treatment programs in Baltimore County, were known to Deputy Zoning Commissioner Timothy Kotroco before he presided over WMI's zoning hearing in September 1997 and that this knowledge "biased or tainted" his decision in the case. See Pl.'s Surreply, pp. 3-5.[14] In response, Commissioner Kotroco maintains that at the time of the hearing, he was not aware that the County Council had passed the resolution. See Amended Affidavit of Timothy Kotroco, ¶ 5. Furthermore, although he admits that he knew that County Executive Ruppersberger had corresponded with the State Department of Health regarding methadone clinics, he insists that he "did not read the letter" before rendering his decision and that he "gave the letter no weight." Id. ¶ 6.
At WMI's hearing before Commissioner Kotroco, the issues were (1) whether, under the applicable zoning regulations, WMI qualified as a "medical office" or "medical clinic," entitling it to a use permit as of right, or whether it constituted a "community care center," requiring it to obtain a "special exception" before operating at the Pulaski Highway location, and (2) whether, if found to constitute a community care center, WMI should be issued *615 the requested special exception. See Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner Kotroco's opinion), pp. 1, 6.
Regarding the first issue, Mr. Smith testified that WMI was a private operation, sponsored by a charitable organization (Pregnancy AID Centers, Inc.), and that it would not receive public funding. He further testified that the primary purpose of WMI would be to treat drug-dependent individuals through the use of methadone. The facility would be staffed by a physician, a psychologist, and various counselors, all of whom would participate in each patient's treatment. Mr. Smith anticipated treating a total of 120-150 patients at the facility, with approximately 15-20 patients seen each day. The dispensing of methadone would take place six days a week between the hours of 6:00 a.m. (7:00 a.m. on Saturdays) and 10:00 a.m. The methadone and all other drugs and medications used at the facility would be stored in a safe and approved manner. WMI's patients would be subjected to random drug tests to ensure their compliance with the program. Id., pp. 2-4.
Based on this evidence, and after "closely reviewing" the relevant definitions set forth in the County's zoning regulations, Commissioner Kotroco concluded that WMI "more closely fits the definition of a community care center" than the definition of either a "medical office" or "medical clinic." To support this conclusion, he stated only that, in his view, the definitions of "medical office" and "medical clinic" are "basically general." In contrast, the definition of "community care center" expressly refers to the "counseling, supervision, or rehabilitation of alcoholics, or drug abusers." Consequently, Commissioner Kotroco denied WMI's request "to approve the subject use as a medical office or medical clinic." Id., p. 7. Commissioner Kotroco then turned to the second issue: whether to grant WMI a "special exception."
Numerous residents and local public officials testified in opposition to Plaintiff's proposed facility.[15] Commissioner Kotroco's opinion plainly acknowledges that the facility's opponents were "mainly concerned about the type of individual who would be seeking methadone treatment" at WMI. Although they expressed other reasons for opposing the facility, the opponents feared that the program's clients "would wander elsewhere into their communities and commit crime." Id., p. 5. Testifying in support of WMI were Mr. Smith; Dr. Burton D'Lugoff, a professor of medicine at the Johns Hopkins University School of Medicine and an expert in the field of methadone treatment; and William Monk, an expert consultant in land planning and zoning. Id., p. 4.
After hearing all of the testimony for and against the facility, Commissioner Kotroco decided not to grant WMI a special exception to operate at the Pulaski Highway location, on the grounds that "a community care center on the subject site would impact the surrounding communities disproportionately than if the use were located elsewhere within the same B.R. zone in Baltimore County." Id., p. 8.[16] Commissioner Kotroco's decision was based on the following findings and considerations: First, the Commissioner found that there was a "substantial[]" "lack of police presence in this particular area" due to the proposed site's "unique" location at the "outermost boundary of two police precincts." Id., pp. 7-8. Second, in the Commissioner's opinion, the location lacked "the structured environment ... necessary in order for this type of use to safely operate." Id., p. 8. The Commissioner indicated that he believed a "hospital campus" *616 would be a more appropriate site for the facility because such locations are regularly patrolled by surveillance cameras and security guards and there are employees or other personnel present essentially around the clock. In contrast, at the Pulaski Highway location, the Commissioner found that, in addition to the reduced police presence, "most, if not all, of the offices will close after normal business hours." As a result, the Commissioner was particularly concerned about the possibility of loitering and burglary at the proposed facility. Id. Accordingly, WMI's request for a special exception was denied.
Plaintiff did not appeal Commissioner Kotroco's decision to either the Baltimore County Board of Appeals or the state circuit court for Baltimore County.
E. WMI's Lawsuit:
The present lawsuit was filed on June 8, 1998. Plaintiff claims that Defendants' actions in denying WMI a use permit for the Pulaski Highway property violated Plaintiff's rights under the Americans With Disabilities Act of 1990 ("ADA"), codified at 42 U.S.C. § 12101 et seq., and the Due Process Clause of the Fourteenth Amendment. Specifically, Plaintiff contends that its rights under Title II of the ADA, 42 U.S.C. § 12132, and Title IV of the ADA, 42 U.S.C. § 12203(b), were infringed by the following actions allegedly taken by Defendants: (1) imposing the "consultation/approval" policy for state certification and requiring WMI to provide notice of and obtain pre-approval for its proposed location; (2) imposing a "moratorium" on the siting of all methadone treatment programs in Baltimore County and securing the State's commitment to adhere to this "moratorium"; (3) requiring WMI to attend a special hearing in order to determine its rights to a zoning permit as a "medical office" or "community care center"; and (4) denying WMI a use permit for the Pulaski Highway property. See Compl. ¶¶ 107, 110; Pl.'s Opposition, p. 13. Plaintiff also contends that its right to procedural due process under the Fourteenth Amendment, enforced through 42 U.S.C. § 1983, was violated when WMI was required by Defendants "to engage in a sham hearing process" in which the outcome was decided "prior to the presentation of any evidence" by a biased decision-maker. See Compl. ¶ 115; see also Pl.'s Opposition, pp. 39-41. Plaintiff seeks declaratory and injunctive relief, as well as monetary damages and costs.
STANDARD OF REVIEW
The Fourth Circuit recently summarized the basic principles governing the resolution of Rule 12(b)(6) motions:
The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; "importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Accordingly, a Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief. See id.... We do note, however, that for purposes of Rule 12(b)(6), we are not required to accept as true the legal conclusions set forth in a plaintiff's complaint. See District 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083,1085 (4th Cir.1979).
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999). Where matters outside the pleadings are considered by the court, a defendant's motion to dismiss will be treated as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b).
Rule 56(c) of the Federal Rules of Civil Procedure provides that:
[Summary judgment] shall be rendered forthwith if the pleadings, depositions, *617 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in her favor. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.1997) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The non-moving party may not rest upon mere allegations or denials in her pleading, however, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991). The "mere existence of a scintilla of evidence in support of the plaintiff's position" is not enough to defeat a defendant's summary judgment motion. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
ANALYSIS
I. ADA Claim
When Congress passed the landmark Americans With Disabilities Act in 1990, its purpose was "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Among the types of discrimination that Congress was most concerned with were "outright intentional exclusion" and "exclusionary qualification standards and criteria." Id. § 12101(a)(5). Congress's stated goal in eliminating these and other forms of discrimination against disabled individuals was "to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." Id. § 12101(a)(8). As a remedial statute, the ADA "should be broadly construed to effectuate its purposes." Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir.1998) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967)); see also Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) ("the Act must be broadly construed").
Plaintiff contends that in denying it a zoning permit, Defendants violated Title II and Title IV of the ADA. Turning first to the Title II claim, Title II of the ADA prohibits state and local governments from discriminating against individuals based on their disabilities. It reads, in relevant part:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. The term "public entity" is defined by the ADA as any state or local government, including "any department, agency, special purpose district, or other instrumentality" of a state or local government. Id. § 12131(1). The term "qualified individual with a disability" is defined, in relevant part, as
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Id. § 12131 (2).
Significantly, Defendants do not dispute that WMI's anticipated clientele individuals with opiate addiction who require methadone therapy to aid in their recovery are disabled individuals covered by the ADA. See, e.g., Shafer v. Preston Mem'l Hosp. Corp., 107 F.3d 274, 279-80 (4th Cir.1997) ("persons who have refrained *618 from using drugs for some time are protected under the statute"); Innovative Health Sys., Inc. v. City of White Plains, 931 F.Supp. 222, 231 (S.D.N.Y.1996) ("Persons recovering from or receiving treatment for addiction to alcohol or drugs are disabled individuals for purposes of the ADA"), aff'd in part, 117 F.3d 37 (2d Cir. 1997).[17]
Nor do Defendants challenge WMI's standing under the ADA to sue the County on its clients' behalf. See, e.g., Innovative Health Sys., 117 F.3d at 47-48 (drug-addiction treatment center has standing under Title II of ADA); Discovery House, Inc. v. Consolidated City of Indianapolis, 1999 WL 199113, at *8-9 (N.D.Ind. April 1, 1999) (same); Oak Ridge Care Center, Inc. v. Racine County, 896 F.Supp. 867, 871-72 (E.D.Wis.1995) (same).
Furthermore, Defendants do not dispute that Title II applies to the County's zoning decisions. See, e.g., Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 1999 WL 351126, at *5 (9th Cir. June 3, 1999) (holding that ADA applies to local zoning decisions); Innovative Health Sys., 117 F.3d at 44-45 (same); Discovery House, 1999 WL 199113 at *4-5 (same); Oak Ridge Care Center, 896 F.Supp. at 872-73 (same).[18]
Preliminarily, Defendants assert a variety of immunity and "capacity to be sued" defenses. See Def.'s Motion, pp. 8-12; Def.'s Reply, pp. 3-9. First, as to the immunity defenses, it is axiomatic that these are individual in nature and do not apply to either local governments or their agencies. See, e.g., Burtnick v. McLean, 76 F.3d 611, 613 (4th Cir.1996) (involving legislative immunity); Discovery House, 1999 WL 199113, at *7 (involving judicial immunity); Knussman v. Maryland, 16 F.Supp.2d 601, 615 (D.Md.1998) (involving qualified immunity). Since Plaintiff is not bringing its ADA claims against the four defendants named in their individual capacities, but only against the four governmental defendants, see Pl.'s Opposition, p. 16, the immunity defenses raised by Defendants simply do not apply.
Defendants next contend that Baltimore County is the only governmental defendant *619 that "is a juridical entity and subject to suit." Def.'s Motion, p. 12. More specifically, Defendants argue that although § 12131 (defining "public entity") "brings the actions of [local government] agencies and departments within the scope of the Act," it "does not necessarily make them [i.e., the agencies and departments] amenable to suit." Def.'s Reply, p. 8 (emphasis in original). Relying on Fed.R.Civ.P. 17(b), which provides that the capacity of an entity to sue or be sued "shall be determined by the law of the state in which the district court is held," Defendants claim that under Maryland law only the County itself, and not the County's offices and departments, is authorized to sue and be sued. Def.'s Reply, p. 8. Consequently, Defendants assert that "all entities Plaintiff has sued other than Baltimore County should be dismissed from its ADA claims." Id., p. 9; see, e.g., Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir.1991) (finding that plaintiff improperly filed Title VII suit against police department but not against city, on grounds that department lacked separate legal existence under Texas law, but reversing district court's decision not to permit plaintiff to amend complaint ). The court disagrees.
As Defendants acknowledge, § 12131 extends Title II's prohibition on discrimination against disabled individuals to "any department, agency, special purpose district, or other instrumentality" of a state or local government. The court believes that it was Congress's intent to provide a cause of action against any public entity that falls within this definition. Nothing in the language of Title II indicates that a disabled person who has been discriminated against by an agency of a state or local government is precluded from directly suing the offending agency. Indeed, the caselaw contains multiple examples of this very situation. See, e.g., Davis v. Francis Howell Sch. Dist., 138 F.3d 754 (8th Cir.1998) (defendants included local school district); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir.1997) (defendants included city zoning and planning boards); Discovery House, Inc. v. Consolidated City of Indianapolis, 1999 WL 199113 (N.D.Ind.1999) (defendants included city zoning board); Roe v. County Comm'n, 926 F.Supp. 74 (N.D.W.Va.1996) (defendants included county sheriff's department).[19]
Defendants' interpretation of Title II's reach is inconsistent with its strong and comprehensive mandate against discrimination on the basis of disability by providers of public services. Unlike, for example, 42 U.S.C. § 1983, which does incorporate capacity distinctions for purposes of determining the class of "persons" to which the statute applies, nothing about the language or goals of Title II suggests that Congress similarly intended to limit the class of defendants to which Title II applies. Moreover, as a federal statute enacted pursuant to Congress's authority under the Fourteenth Amendment, see 42 U.S.C. § 12101(b)(4); Amos v. Maryland Dep't of Pub. Safety and Correctional Servs., 178 F.3d 212, 222-23 (4th Cir.1999) ("Congress acted within its constitutionally granted powers when it enacted the ADA ... pursuant to § 5 of the Fourteenth Amendment"), the provisions of the ADA take precedence over conflicting state laws. See Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ("The elements of, and the defenses to, a *620 federal cause of action are defined by federal law") (holding that federal law determines who is a "person" under § 1983). Accordingly, the court will not dismiss Plaintiff's ADA claims against the County Council, the Permits Department, or the Office of Zoning Commissioner on these grounds.
In order to establish disability discrimination in violation of Title II of the ADA, a plaintiff must prove "(1) that he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the employment or benefit due to discrimination solely on the basis of the disability." Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir.1995). Since it is undisputed that Plaintiff's clients are disabled and are otherwise qualified for the zoning permit in question, the central question in this litigation is whether Defendants' actions in refusing to grant the zoning permit constitute unlawful discrimination "solely on the basis of the disability."
Although Title II broadly prohibits discrimination on the basis of disability by public entities, see 42 U.S.C. § 12132 ("no qualified individual with a disability shall, by reason of such disability ... be subjected to discrimination by any such entity"), it provides very little guidance by way of defining exactly what constitutes "discrimination" within the meaning of the statute. Compare 42 U.S.C. § 12112 (setting forth numerous definitions of disability discrimination in employment matters covered under Title I of the ADA). Consequently, the court will look to Title II's implementing regulations promulgated by the Department of Justice in accordance with the Act. See id. § 12134. The Justice Department's views are entitled to substantial deference. See Marcus v. Kansas Dep't of Revenue, 170 F.3d 1305, 1307 n. 1 (10th Cir.1999); Kornblau, 86 F.3d at 194 ("considerable weight"); Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.1995) ("substantial deference"); see also Olmstead v. L.C., ___ U.S. ___, ___, 119 S.Ct. 2176, 2186, 144 L.Ed.2d 540 (1999) ("the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance") (internal quotation marks and citations omitted).
Under the regulations, a public entity, "in providing any aid, benefit, or service may not ... [a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others" or "[o]therwise limit [such an individual] in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service." 28 C.F.R. § 35.130(b)(1)(ii), (vii). Furthermore, the regulations prohibit a public entity from "utiliz[ing] criteria or methods of administration ... [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability." Id. § 35.130(b)(3)(i). This provision applies to written policies as well as actual practices and is intended to prohibit both "blatantly exclusionary policies or practices" and "policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate." Id., Pt. 35, App. A. Similarly, a public entity
shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity.
Id. § 35.130(b)(8) (emphasis added). Finally, the regulations require that a public entity
shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid *621 discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
Id. § 35.130(b)(7).
Thus, as interpreted by the Justice Department, Title II prohibits not only intentional discrimination against disabled individuals, but also any policies or practices that have a disparate impact on disabled individuals. See Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir.1996) ("Congress intended to prohibit outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability"). In addition, where a public entity's policies, practices, or procedures discriminate against disabled individuals in violation of the ADA, Title II imposes an affirmative obligation on the part of the public entity to make "reasonable modifications" thereto unless such modifications "would fundamentally alter the nature of the service, program or activity" in question. See id. at 1485.
In this case, Defendants do not deny that they treat proposed methadone clinics differently from other drug treatment facilities when deciding whether to issue zoning permits. Pursuant to the County's unwritten, "special" methadone policy, the County requires proposed methadone clinics, such as WMI, to undergo a public hearing and to qualify as "community care centers" before being permitted to operate in B.R. zones. In contrast, nonmethadone drug treatment facilities are permitted to operate in B.R. zones as of right (under the "medical office" classification) and no public hearing is required. Def.'s Motion, p. 15.
Nevertheless, Defendants contend that the County's special methadone policy does not discriminate against disabled persons because it is based on "the unique risks associated with methadone dispensation, and not [on the facility's] association with disabled persons[,] as the zoning treatment of non-methadone dispensing treatment facilities shows." Id., p. 15; see also Def's Reply, p. 13 ("Logically, then, the distinction between a counseling office treating for substance abuse and a methadone treatment facility treating for substance abuse is not the client, but the method of treatment"). Furthermore, the County argues that it has a "rational basis" for treating methadone clinics differently. Def.'s Motion, p. 16. Finally, the County argues that there was nothing discriminatory about either requiring WMI to attend a public hearing or denying WMI's request for a special exception.
Plaintiff's argument in opposition is straightforward: Since "[t]he dispensing of methadone cannot be divorced from the individuals who take the medication," the County's special methadone policy "discriminate[s] against those patients whose addiction requires methadone for effective treatment." Pl.'s Opposition, pp. 28-29. The court agrees.
The County's special methadone policy unquestionably imposes disproportionate burdens on a particular class of disabled individuals: opiate addicts who require methadone therapy to aid in their recovery. See 28 C.F.R. § 35.130(b)(8) (prohibiting public entities from employing eligibility criteria for public benefits that "tend to screen out ... any class of individuals with disabilities from fully and equally enjoying" the benefit). The fact that the County may have a "rational basis" for this policy, standing alone, is not sufficient to justify this burden. See Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F.Supp.2d 941, 953 (E.D.Wis.1998) (explaining that ADA "accorded disabled people the status of a protected class" and consequently, "[a] rational basis will no longer support a law which burdens the disabled"). Only if this burden cannot be eliminated through "reasonable modifications" in the County's zoning process would it not run afoul of the *622 ADA.[20]See 28 C.F.R. § 35.130(b)(7); Trovato v. City of Manchester, 992 F.Supp. 493, 498-99 (D.N.H.1997) (granting summary judgment to plaintiffs where city "failed to reasonably accommodate plaintiffs' disability" by refusing to exempt plaintiffs from zoning ordinance's setback requirements which prohibited plaintiffs from constructing front-yard parking space).
Moreover, if carried to its logical conclusion, the County's argument justifies a blanket ban on methadone treatment programs operating in Baltimore County. The court believes, however, that such a ban would be contrary to the ADA's nondiscrimination mandate, as it would significantly burden the ability of Baltimore County residents who are disabled due to their addiction to heroin and other narcotics to receive a clinically-proven and governmentally-approved form of treatment. Compare Crowder, 81 F.3d at 1484 (holding that Hawaii's animal quarantine law discriminated against visually-impaired persons in violation of the ADA by restricting access to guide dogs needed to use public services).
While the ADA certainly does not prohibit the County from adopting appropriate zoning regulations governing the location of methadone treatment facilities, the court believes that the ADA prohibits the County from enforcing its zoning regulations in a manner that effectively precludes proposed methadone treatment programs from operating in the county or that otherwise imposes unreasonable burdens on such programs. The court, of course, is mindful of the deference that federal courts historically have paid to municipal zoning decisions. See Gardner v. City of Baltimore, 969 F.2d 63, 67-68 (4th Cir. 1992). Nevertheless, federal antidiscrimination statutes must take precedence over conflicting local laws and practices. See Crowder, 81 F.3d at 1485 ("when Congress has passed antidiscrimination laws such as the ADA which require reasonable modifications to public health and safety policies, it is incumbent upon the courts to insure that the mandate of federal law is achieved").
Accordingly, the court will deny Defendants' motion as to Plaintiff's ADA Title II claim.[21] The court cannot say as a matter of law that Defendants have not *623 discriminated against WMI's clients on the basis of its clients' disability. First, a genuine issue of material fact remains regarding whether the burdens imposed on disabled individuals by the County's special methadone policy can be eliminated through reasonable modifications in the County's zoning procedures. These burdens involve (1) subjecting proposed methadone clinics to a special zoning hearing and (2) requiring proposed methadone clinics to qualify as "community care centers" before permitting them to operate in Baltimore County.
Second, with regards to the special zoning hearing, the court agrees with Defendants that "[a] public hearing requirement does not of itself establish an actionable violation of the ADA." Def.'s Motion, p. 16 (citing Oxford House v. City of Virginia Beach, 825 F.Supp. 1251 (E.D.Va.1993)). In Oxford House, however, the hearing requirement was imposed equally on all parties, regardless of disability, who sought to exceed the city's four-person limit on the number of unrelated persons who could live together in the same house. 825 F.Supp. at 1254. In that case, the operators of a group home for recovering alcohol and drug abusers refused to apply for a conditional use permit before bringing suit under the ADA and other federal statutes challenging the city's residential occupancy limits. The district court held that the plaintiffs' claims of discrimination were premature "until requests for conditional use permits are made and acted upon by the City." Id. To the extent that the plaintiffs were asserting that they were exempt from applying for a conditional use permit, which would have required them to undergo a public hearing, the court dismissed their claims. Id.
The district court's decision in Oxford House stands for the uncontroversial proposition that under the ADA, disabled individuals are entitled to no greater rights than non-disabled individuals. See Kornblau, 86 F.3d at 194 ("The purpose of the Act is to place those with disabilities on an equal footing, not to give them an unfair advantage"). In this case, however, the County imposed a public hearing requirement on WMI, a proposed methadone clinic, that it does not impose on other types of proposed drug treatment facilities, or on medical facilities serving the general population. Furthermore, whereas the County classifies non-methadone drug treatment facilities as "medical offices" and permits them to operate in B.R. zones as of right, methadone clinics like WMI must obtain special exceptions as "community care centers" before being permitted to operate in the same zones. By challenging these requirements under the ADA, WMI is not seeking an "unfair advantage." Rather, WMI merely demands to be placed on a "equal footing." It will be up to the County at trial to show whether these requirements are necessary to the County's zoning scheme, see 28 C.F.R. § 35.130(b)(8), and cannot be eliminated by any reasonable modifications thereto, see id. § 35.130(b)(7).
Another genuine issue of material fact remains concerning whether the County is enforcing its zoning regulations in such a way as effectively to preclude WMI and other proposed methadone programs from locating in the county. The court finds that Plaintiff has presented sufficient evidence to reach a jury on this question. This evidence includes, first, the various official expressions of opposition to methadone treatment programs that are attributable to County Executive Ruppersberger and County "drug czar" Gimbel. As "the chief executive officer of the county and the official head of the county government," Mr. Ruppersberger exercises considerable power and influence over Baltimore County's government. See generally Balto. County Charter § 402. Not only is he responsible for ensuring that all of the County's officers, employees, offices, and departments faithfully perform their duties, he either directly or through his administrative officer appoints all of the *624 officials involved in administering the County's zoning regulations, including the Permits Department Director and the Deputy Zoning Commissioner. In light of Mr. Ruppersberger's prominent role in the County's government, a reasonable jury could conclude that his views represent the County's official position regarding methadone treatment facilities. This conclusion is only strengthened by Mr. Gimbel's own public pronouncements opposing such facilities.
Another piece of evidence supporting a finding that the County is enforcing its zoning regulations in a manner calculated to prevent the location of any new methadone treatment programs in the county is the special methadone policy itself. To begin with, the policy is unwritten and has never been formally approved by the one body authorized by the County Charter to exercise lawmaking powers, the County Council. See Balto. County Charter § 306; see also id. § 522.1(b) (providing that amendments to County's zoning regulations "shall, prior to taking effect as law, be approved by legislative act of the county council"). Moreover, the asserted rationale for the policy is unpersuasive. The County argues that, while it routinely classifies non-methadone treatment programs as "medical offices," there is "uncertainty" as to whether drug treatment programs that dispense methadone constitute "medical offices" or "community care centers." Def.'s Motion, p. 15. Yet, nothing in the definition of either classification refers to methadone or to any other drug. See B.C.Z.R. § 101. Although the court acknowledges that WMI appears to fit both definitions, so do drug treatment programs that do not dispense methadone. Whatever "uncertainty" exists, therefore, has nothing to do with the "introduction of methadone," see Def.'s Motion, p. 15, but rather is a result of the generality of the two definitions and the lack of any zoning regulations specifically addressing methadone clinics. Based on the existing zoning regulations, Defendants simply have not articulated a persuasive reason for classifying methadone treatment programs differently from non-methadone treatment programs. Presented with this evidence, the court finds that a reasonable jury could conclude that the County's special methadone policy is a pretext for subjecting methadone clinics to the more rigorous requirements for obtaining "special exceptions" as "community care centers" in order to enable the County to deny them zoning approval without appearing to discriminate on the basis of disability.
Instructive on this issue is the Second Circuit's decision in Innovative Health Sys. v. City of White Plains, 117 F.3d 37 (2d Cir.1997). In that case, an outpatient drug and alcohol rehabilitation center sought to relocate to a facility in downtown White Plains, New York. The issue was whether the center constituted a "business or professional office," which was permitted in the zoning district, or a "clinic," which was not. Although initially both the building commissioner and the city's corporate counsel approved the center's application for a building permit as an "office," on appeal the zoning board of appeals ruled that the center constituted an impermissible "clinic," and it overturned the commissioner's decision to issue a building permit to the center. 117 F.3d at 41-42.
The center then filed suit in federal district court alleging, inter alia, that the board's actions violated Title II of the ADA. After the district court granted the center's request for a preliminary injunction, the case was appealed to the Second Circuit, which affirmed. Id. at 49. In doing so, one of the main factors the circuit court considered was the "lack of a credible justification" for the board's decision to classify the center as a "clinic" rather than an "office." Id. The court found that the board's decision was "highly suspect in light of the requirements set forth in the zoning ordinance," which supported the conclusion that the center was an office and not a clinic. Id. The court further pointed out that not only did the *625 board fail to explain why the center constituted a clinic, it also failed to explain why other similar uses in the same district constituted offices. Id. The court concluded that these inconsistencies in the board's decision raised an inference that "the decision was based on impermissible factors, namely the chemical-dependent status of [the center's] clients." Id.
Similarly, the County's failure in this case to offer a credible reason why methadone clinics constitute "community care centers," while non-methadone clinics constitute "medical offices," raises an inference that the County's treatment of proposed methadone clinics is motivated by unlawful bias against opiate-dependent individuals.
Finally, the court cannot entirely discount the local community's intense opposition to WMI. As Commissioner Kotroco acknowledged in his decision denying WMI a zoning permit, the people who testified at the hearing in opposition to WMI's petition were "mainly concerned about the type of individual who would be seeking methadone treatment" at the facility. Def.'s Motion, Ex. 4, p. 5 (emphasis added). While ordinarily "a decisionmaker is not to be saddled with every prejudice and misapprehension of the people he or she serves and represents[,] ... a decisionmaker has a duty not to allow illegal prejudices of the majority to influence the decisionmaking process." Association of Relatives and Friends of AIDS Patients v. Regulations and Permits Admin., 740 F.Supp. 95, 104 (D.P.R.1990). Furthermore, "if an official act is performed simply in order to appease the discriminatory viewpoints of private parties, that act itself becomes tainted with discriminatory intent even if the decisionmaker personally has no strong views on the matter." Id.; see also Innovative Health Sys., 117 F.3d at 49. Even if Plaintiff cannot prove that Commissioner Kotroco denied WMI's zoning petition simply "to appease the discriminatory viewpoints of private parties," the above evidence will be relevant to the jury's determination as to whether the County adopted its special methadone policy in response to the local community's unlawful concerns about the "type of individuals" who require methadone therapy.[22]
II. Procedural Due Process Claim
Turning next to the procedural due process claim, Plaintiff alleges in its Complaint that Defendants, "acting under color of state law," have "deprived WMI of property without due process of law" in violation of the Fourteenth Amendment. Compl. ¶ 115. Defendants argue in opposition that Plaintiff has failed to state a legally cognizable due process claim because the Fourteenth Amendment does not create a private cause of action. Def.'s Motion, pp. 7, 14. See, e.g., Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir.1979) (en banc) (per curiam) ("there is no place for a cause of action against a municipality directly under the 14th Amendment"); Cale v. City of Covington, 586 F.2d 311, 313 (4th Cir.1978) (same). Rather, claims for damages against a municipality asserted under the Fourteenth Amendment must be brought pursuant to 42 U.S.C. § 1983. See City of Covington, supra. The first mention of § 1983 by Plaintiff occurs in its memorandum in opposition to Defendants' motion to dismiss. Defendants argue that Plaintiff was required specifically to identify § 1983 in the Complaint. Def.'s Reply, p. 3. The court disagrees.
A complaint generally is sufficient so long as it includes "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and provides "adequate notice" to the defendant regarding the essential elements of the plaintiff's claim. See United *626 States v. Potemken, 841 F.2d 97, 102 (4th Cir.1988) (finding that government's complaint in tax lien foreclosure case provided adequate notice to defendant, even though statutory provision sued under was not explicitly referred to); see also Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (rejecting "heightened pleading standard" in § 1983 cases against municipalities).
Here, Plaintiff alleged in its Complaint that Defendants, "acting under color of state law," deprived Plaintiff of its rights under the Fourteenth Amendment. The court finds that this allegation, in conjunction with the other factual and legal allegations contained in the Complaint, was sufficient to put Defendants on notice that Plaintiff was bringing a claim against them under § 1983. Moreover, Defendants obviously understood this to be the case. Nevertheless, although Plaintiff has stated a claim for relief under § 1983, the court will grant Defendants' motion for summary judgment as to Plaintiff's procedural due process claim.
42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
Plaintiff alleges that the Defendants, "acting under color of state law," violated Plaintiff's right to procedural due process guaranteed by the Fourteenth Amendment.[23] Plaintiff brings its due process claim, pursuant to § 1983, against all eight defendants, the four individual defendants as well as the four governmental defendants. Pl.'s Opposition, pp. 16-17. The first question that must be resolved is whether each of these defendants constitutes a "person" within the meaning of the statute.
Defendants, of course, do not deny that the four defendants named in their individual capacities County Executive Ruppersberger, County Council Chairman Bartenfelder, Permits Department Director Jablon, and Deputy Zoning Commissioner Kotroco are "persons" who may be held liable under § 1983. See Def.'s Motion, pp. 8-10. They contend, however, that each individual defendant is immune from liability on various grounds (discussed below). Id. Furthermore, they rightfully acknowledge that Baltimore County is amenable to suit under the statute. Id., p. 7; see, e.g., Smallwood v. Jefferson County, 753 F.Supp. 657 (W.D.Ky.1991) (finding that Kentucky county was "person" under § 1983). Unlike the individual defendants, Baltimore County can assert no immunity defense under § 1983. See Berkley v. City of Charleston, 63 F.3d 295, 296 (4th Cir.1995) (en banc) ("municipalities and local governments are not entitled to immunity from suits brought under section 1983").
A somewhat closer question is whether the remaining governmental defendants the County Council, the Permits Department, and the Office of Zoning Commissioner are "persons" within the meaning of § 1983. The court concludes that they are not. See, e.g., Umhey v. County of Orange, 957 F.Supp. 525, 531-32 (S.D.N.Y.1997) (finding that county ethics board is not "separate legal entity" capable of being sued under § 1983); Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D.Cal.1996) ("the term `persons' does not encompass municipal departments") (finding that county corrections *627 department was not "person" under § 1983); Post v. City of Fort Lauderdale, 750 F.Supp. 1131, 1133 (S.D.Fla.1990) (finding that neither city police department nor city zoning department was "person" under § 1983). Consequently, Plaintiff cannot maintain a § 1983 action against these last three defendants.
The next question to be addressed is whether the four individual defendants are immune from liability for their alleged roles in denying Plaintiff a zoning permit.[24] Defendants argue that County Council Chairman Bartenfelder is absolutely immune from liability under the doctrine of legislative immunity; that Deputy Zoning Commissioner Kotroco is similarly shielded by the doctrine of judicial immunity; and that County Executive Ruppersberger and Permits Department Director Jablon are entitled to qualified immunity.
Immunity questions ordinarily should be resolved as a "threshold matter" before moving on to other issues. See Torcasio v. Murray, 57 F.3d 1340, 1352 (4th Cir.1995) (involving qualified immunity). "In many cases where a defendant has asserted qualified immunity, [however,] dismissal or even an award of summary judgment may be obviously warranted, based upon existing law, without the court ever ruling on the qualified immunity question." DiMeglio v. Haines, 45 F.3d 790, 799 (4th Cir.1995). This reasoning applies equally well to cases involving legislative or judicial immunity questions. Since the court finds that Plaintiff's procedural due process claim should be dismissed, it is unnecessary to resolve the Defendants' personal immunity claims.
In order to prevail on its procedural due process claim, Plaintiff must establish that (1) it had property or a property interest (2) of which Baltimore County deprived it (3) without due process of law. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 826 (4th Cir.1995). The Fourteenth Amendment itself does not create property interests; rather, they are created and defined by some independent source, such as state law. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Gardner v. City of Baltimore, 969 F.2d 63, 68 (4th Cir.1992).[25] To have a property interest in a local zoning permit,
a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Roth, 408 U.S. at 577, 92 S.Ct. 2701 (quoted in Gardner, 969 F.2d at 68). Whether a person possesses a legitimate claim of entitlement to a local zoning permit depends upon whether, under applicable state and local law, the issuing department "lacks all discretion to deny issuance of the permit or to withhold its approval. Any significant discretion conferred upon the local agency defeats the claim of a property interest." Gardner, 969 F.2d at 68.
Applying this standard, the Fourth Circuit repeatedly has rejected Fourteenth Amendment due process claims brought against local governments under § 1983 for refusing to issue zoning permits. See, e.g., Sylvia Dev. Corp., 48 F.3d at 826 (no right to special zoning designation authorizing residential subdivision on agricultural land); Biser v. Town of Bel Air, 991 F.2d 100, 104 (4th Cir.1993) (no right to special zoning exception authorizing commercial office buildings in residential area); Gardner, 969 F.2d at 69-70 (no right to public works agreement authorizing residential subdivision); compare Scott v. Greenville County, 716 F.2d 1409, 1418 *628 (4th Cir.1983) (plaintiff entitled to building permit "upon presentation of an application and plans showing a use expressly permitted under the then-current zoning ordinance").
In light of the above line of cases, it is perhaps not surprising that Plaintiff does not claim an entitlement to the zoning permit at issue in this case. Instead, the property interests of which Plaintiff alleges the County deprived it without due process of law are (1) the lease to the Pulaski Highway property and (2) "the hearing that defendants required it to participate in." Pl.'s Opposition, p. 40. Neither of these asserted "interests," however, supports Plaintiff's claim under the Due Process Clause.
First, there simply is no evidence that the County "deprived" Plaintiff of the Pulaski Highway lease. Plaintiff freely entered into the lease prior to submitting its petition for a zoning permit, and then just as freely forfeited the lease following Commissioner Kotroco's decision to deny the petition. See Compl. ¶¶ 51, 92. The only sense in which the County "deprived" Plaintiff of the lease is illustrated by Plaintiff's claim that "WMI was forced to forfeit its lease at the Pulaski Highway site because it could not obtain the necessary zoning approval." Id. ¶ 92.[26] Thus, the real issue behind this argument is the denial of the zoning permit. But Plaintiff nowhere asserts an entitlement to the zoning permit. Consequently, this argument must fail.
Second, Plaintiff undoubtedly received a hearing on its zoning petition. Compare Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-33, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (plaintiff denied procedural due process where state fair employment commission failed to convene statutorily mandated hearing on plaintiff's discrimination charge). Plaintiff contends, however, that the hearing was not fair because Commissioner Kotroco was biased against it; as a result, "the outcome of the matter had been decided before the hearing was even held." Pl.'s Opposition, p. 41.
Unquestionably, "[a]n impartial decisionmaker is an essential element of due process." Morris v. City of Danville, 744 F.2d 1041, 1044 (4th Cir.1984) (citing Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Significantly, however, "[a]dministrative decisionmakers, like judicial ones, are entitled to a `presumption of honesty and integrity.'" Morris, 744 F.2d at 1044 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). Furthermore, "absent a showing of bias stemming from an `extrajudicial source,' they are not constitutionally precluded from making the determination that they are directed to make by their employer." Morris, 744 F.2d at 1044 (citing Bowens v. North Carolina Dep't of Human Resources, 710 F.2d 1015, 1020 (4th Cir. 1983)).
In this case, Plaintiff has presented no evidence that Commissioner Kotroco was unconstitutionally biased against WMI's petition for a zoning permit. The mere fact that Commissioner Kotroco may have been aware that other county officials opposed the siting of methadone treatment clinics in Baltimore County in no way proves that Commissioner Kotroco himself was also opposed to such clinics. Moreover, in the absence of any direct extrajudicial evidence of Commissioner Kotroco's own bias, the inferences and innuendos urged by Plaintiff, see, e.g., Pl.'s Opposition, p. 41 (suggesting that Commissioner Kotroco, as a political appointee of County Executive Ruppersberger, may have been concerned about his "job security" in the event that he ruled contrary to County Executive Ruppersberger's wishes), are simply not sufficient to overcome *629 the presumption of honesty and integrity accorded administrative decisionmakers. Consequently, the court rejects Plaintiff's suggestion that "at a minimum" a dispute of material fact exists as to Commissioner Kotroco's actual or apparent bias in this matter.
Accordingly, Plaintiff's procedural due process claim must fail, and summary judgment will be granted to Defendants.[27]
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendants' motion to dismiss Plaintiff's cause of action under Title II of the ADA (Count I) will be Denied;
2. Defendants' motion to dismiss Plaintiff's cause of action under Title IV of the ADA (Count II) will be Denied without prejudice;
3. Defendants' motion to dismiss Plaintiff's cause of action under the Due Process Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (Count III) will be Granted;
4. Defendants' motion seeking to strike Plaintiff's claims for compensatory and punitive damages under Title II of the ADA will be Denied without prejudice; and
5. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.
NOTES
[1] Named as defendants in this case are: Baltimore County, Maryland; Baltimore County Executive C.A. Dutch Ruppersberger, III; the Baltimore County Council; Joseph Bartenfelder, the Chairman of the Baltimore County Council; the Baltimore County Department of Permits and Development Management; Arnold Jablon, the Director of the Baltimore County Department of Permits and Development Management; the Office of the Baltimore County Zoning Commissioner; and Baltimore County Deputy Zoning Commissioner Timothy M. Kotroco.
[2] There are more than twelve non-methadone drug treatment programs operating in Baltimore County, including at least six facilities located in or serving the White Marsh area. Def.'s Motion, Ex. 2 (affidavit of Angela Wallace, Baltimore County's Bureau of Substance Abuse Treatment Coordinator).
[3] Furthermore, neither the Maryland Department of Health and Mental Hygiene nor any of its agencies or officers has been named as a defendant in this lawsuit.
[4] "The deputy zoning commissioner shall assist the zoning commissioner in the performance of the duties conferred upon him in this title ...." Balto. County Code § 26-3(c).
[5] The County's admission thus contradicts the position taken by the Baltimore County Attorney in an August 1997 letter to the Maryland Department of Health and Mental Hygiene, in which she stated that it is "standard" procedure to require a special zoning hearing for any proposed medical facility in order to determine whether it qualifies as a medical office or community care center, and that this requirement "do[es] not apply solely to methadone clinics." Pl.'s Opposition, Ex. 5.
[6] Recall that under the County's zoning regulations, the designation "community care center" only applies to treatment facilities that are "sponsored or operated by a private charitable organization or by a public agency." B.C.Z.R. § 101. For-profit treatment facilities are excluded from this particular use classification. Although WMI is sponsored by a private charitable organization, it also claims to be a for-profit business. See Compl. ¶ 57; Pl.'s Opposition, p. 6. Plaintiff has not taken a clear position on whether it does or does not meet the definition of "community care center."
[7] One of the letters relied on by WMI was written by a Maryland State Delegate to the owner of the property leased by WMI. In the letter, the Delegate states that WMI's plans to operate a methadone treatment program on the property have "caused a great deal of concern among the residents" in the area. She further states that she must "echo their concerns." She then writes:
In dealing with proposals for methadone centers in other areas of my district, I have learned that there is very little control of where possible patients come from. In fact I have been told that many patients come from other states such as Delaware for treatment. Once they arrive at the center for their treatment they can linger and loiter for any length of time, and possibly get into mischief.
(Emphasis added.) The Delegate goes on to suggest that "such treatment centers would be better located near medical facilities such as Franklin Square Hospital." She concludes her letter by "strongly urg[ing] [the property owner] to reconsider the proposed treatment center, and lease the store front to a more appropriate usage."
Assuming, arguendo, that Plaintiff is correct in characterizing the Delegate's letter as reflecting "stereotypical and misinformed attitudes," Compl. ¶ 64, the court nonetheless notes that the Delegate who wrote the letter was not involved in any way in the decision-making process being challenged here by WMI. This case concerns Baltimore County's zoning procedures, which Plaintiff alleges were discriminatorily applied to deny it a use permit for its proposed methadone treatment program. There is no evidence that the Delegate, in her capacity as a state-level legislative official, exercised any power or influence over these procedures. Second, the recipient of the letter, the owner of the property leased by WMI, also was not involved in any way in the County's decision to deny WMI a use permit.
[8] Indeed, according to the Complaint, Councilman Gardina initially supported WMI's plans to locate on Pulaski Highway. Compl. ¶ 49.
[9] The Planning Board consists of fifteen members, eight of whom are appointed by the Baltimore County Executive; the remaining seven members are appointed by the seven-member County Council, with each council-person appointing one Board member, who must reside in the councilperson's district. Balto. County Charter § 522. The Planning Board assists the Baltimore County Office of Planning and Zoning with, inter alia, "[p]reparing and recommending to the county council zoning rules and regulations ...." Id. § 522.1; see also Balto. County Code § 26-33 (providing for referral of zoning matters to Planning Board by County Council).
[10] This is precisely the situation here: WMI appears to meet the definitions of both "medical office" and "community care center," but these two use classifications are mutually exclusive. As explained earlier, while a "medical office" is permitted as of right in a B.R. zone, a "community care center" is permitted only with a special exception. See B.C.Z.R. § 230.
[11] A similar letter was sent to Secretary Wasserman by Councilman Gardina on July 1, 1997, prior to the passage of the resolution. See Pl.'s Surreply, Att. A.
[12] Plaintiff mischaracterizes Mr. Ruppersberger's letter when it suggests that the letter shows that the County had imposed a "moratorium on the siting of all methadone treatment programs" in Baltimore County. See Pl.'s Opposition, p. 8; see also Compl. ¶¶ 81-82. The letter clearly is referring to the State's certification process for proposed methadone treatment programs, not the County's permitting process.
[13] Nothing in the record shows whether Secretary Wasserman ever specifically agreed to Mr. Ruppersberger's request.
[14] The Baltimore County Zoning Commissioner and deputy zoning commissioners are appointed by the county executive, subject to confirmation by the county council. They may be removed at any time upon the recommendation of the county executive with the approval of a majority plus one of the total number of county council members. Balto. County Charter § 522. The deputy zoning commissioners assist the Zoning Commissioner in the performance of his duties, which primarily consist of presiding over "quasi-judicial" zoning hearings. See Balto. County Code § 26-3; B.C.Z.R. § 500.
[15] Nothing in the record indicates that any Baltimore County officials testified against WMI's petition.
[16] Commissioner Kotroco did acknowledge that methadone "is an effective drug used to treat the effects of withdrawal associated with individuals who are rehabilitating themselves from either a heroin addiction or prescription drug addiction." Def.'s Motion, Ex. 4, p. 3.
[17] In Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265-66 (4th Cir.1995), the Fourth Circuit explained that "an individual is not otherwise qualified [and therefore is not protected by the ADA] if he poses a significant risk to the health or safety of others by virtue of the disability that cannot be eliminated by reasonable accommodation." See also Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 734 (9th Cir.1999) ("an individual who poses a significant risk to the health or safety of others that cannot be ameliorated by means of a reasonable modification is not a qualified individual under § 12131"). This "significant risk test" is not applicable here, however, since Defendants do not contend that WMI's clients fall outside the class of persons protected by the ADA. Moreover, there is no evidence in the record supporting a finding that WMI's proposed methadone clinic poses a significant risk to the health or safety of Baltimore County residents that cannot be eliminated by reasonable accommodation. At the very least, whether the clinic posed such a risk would be a dispute of material fact precluding summary judgment.
[18] As part of their argument that the four individual defendants County Executive Ruppersberger, County Council Chairman Bartenfelder, Permits Department Director Jablon, and Deputy Zoning Commissioner Kotroco are entitled to qualified immunity under the ADA, Defendants contend that as of 1997, it was not clearly established law either that WMI had standing to sue under Title II or that Title II applied to local zoning decisions. Def.'s Motion, pp. 9-12; see, e.g., Kessler Inst. for Rehabilitation, Inc. v. Borough of Essex Fells, 876 F.Supp. 641, 652, 655 (D.N.J. 1995) (health care facility for disabled persons lacked standing under Title II; local zoning decision is not public service, program, or activity within meaning of Title II). Defendants nowhere assert, however, that Plaintiff in fact lacks standing under the ADA or that the ADA does not apply to the zoning decision Plaintiff is challenging. In any event, based on the reasoning found in the cases cited above, the court is satisfied that Plaintiff indeed possesses constitutional and prudential standing to bring suit against the County under the ADA and that the ADA applies to the zoning decision at issue in this case.
[19] In contrast, the Fifth Circuit's decision in Darby v. Pasadena Police Dep't, cited above, is an isolated Title VII decision that has not been followed outside of the Fifth Circuit. To the extent that Darby is relevant, however, it merely stands for the proposition that the plaintiff in that case was required to name the city as a defendant along with the police department, not that the police department had to be dismissed from the case. See 939 F.2d at 313 (plaintiff's suit "can[not] proceed against the police department alone"); id. ("a political subdivision cannot pursue a suit on its own"). In this case, Plaintiff has satisfied Darby's requirements by naming Baltimore County as a defendant along with the three other governmental defendants.
[20] Defendants point out that Plaintiff "did not seek a reasonable accommodation or otherwise invoke [the] ADA at anytime during the zoning procedure." Def's Reply, p. 10. Assuming, arguendo, that Plaintiff was required to do so, cf. Bledsoe v. Palm Beach County Soil and Water Conserv. Dist., 133 F.3d 816, 824 (11th Cir.1998) (Title II contains no administrative exhaustion requirement); Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281-82 (3d Cir.1996) (same), the court believes that Plaintiff met its burden by requesting a special exception to operate as a community care center. See Oconomowoc Residential Programs, 23 F.Supp.2d at 955. The County's zoning regulations authorize the zoning commissioner, when granting special exceptions, to "impose such conditions, restrictions or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties." B.C.Z.R. § 502.2. In this case, rather than denying WMI's application outright, Commissioner Kotroco could have granted the special exception on the condition that WMI meet certain reasonable requirements designed to alleviate the commissioner's concerns about community safety.
[21] The court will deny without prejudice Defendants' motion as to Plaintiff's ADA Title IV claim brought pursuant to 42 U.S.C. § 12203(b), which provides:
It shall be unlawful to ... interfere with any individual in the exercise or enjoyment of ... or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
By its very terms, the protection afforded by § 12203(b) is limited to "individuals," and WMI does not constitute an "individual" within the ordinary meaning of the word. This issue was first raised by the court sua sponte at the hearing, however, and Plaintiff has since submitted some evidence concerning the legislative history of the provision that may be relevant. In any event, the remedies available under Title IV are duplicative of the remedies available under Title II. See id. § 12203(c).
[22] The court declines to resolve Defendants' motion concerning the availability of compensatory and punitive damages under Title II of the ADA. See Def.'s Motion, pp. 19-20. Defendants' motion will be denied without prejudice and may be raised again at an appropriate time later in these proceedings.
[23] The Fourteenth Amendment to the United States Constitution provides, in pertinent part: "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
[24] The only claim against the four individual defendants is the § 1983 due process claim. Pl.'s Opposition, p. 16.
[25] Title II of the ADA cannot reasonably be read to grant WMI a property right in a zoning permit for the Pulaski Highway property. See Kornblau, 86 F.3d at 194 (Title II of ADA does not entitle disabled driver, who is not county employee, to park in handicapped parking space in county employees' parking lot).
[26] This claim is unsupported by evidence demonstrating that the leased property could not have been used or sublet profitably by WMI for purposes other than the proposed methadone clinic.
[27] It is unnecessary, therefore, for the court to decide whether the individual Defendants enjoy personal immunity, see DiMeglio, 45 F.3d at 799, or whether Plaintiff has demonstrated a basis for holding the County liable for the alleged due process violations, see, e.g., Greensboro Prof'l Fire Fighters Ass'n v. City of Greensboro, 64 F.3d 962 (4th Cir.1995) (explaining grounds for municipal liability under § 1983). Nor is it necessary for the court to respond to Defendants' suggestion that Plaintiff's due process claim is barred under the doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and its progeny. See Def.'s Motion, p. 14.
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00339-CR &
04-14-00340-CR
Eddie VASQUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR0910 & 2013CR11644
Honorable Mary D. Roman, Judge Presiding
BEFORE JUSTICE BARNARD, JUSTICE MARTINEZ, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, these appeals are DISMISSED.
SIGNED July 23, 2014.
_________________________________
Marialyn Barnard, Justice
| {
"pile_set_name": "FreeLaw"
} |
204 F.2d 730
92 U.S.App.D.C. 265
NICOL,v.JOHNSTON.
No. 11171.
United States Court of Appeals District of Columbia Circuit.
Argued March 11, 1953.Decided May 7, 1953.
[92 U.S.App.D.C. 266] Miss Jessie P. Grandy, Washington, D.C., for appellant.
Mr. Godfrey L. Munter, Washington, D.C., for appellee.
Before PRETTYMAN, PROCTOR and WASHINGTON, Circuit Judges.
PER CURIAM.
1
This appeal is from a summary judgment in favor of appellee (defendant) in an action for damages for alleged wrongful sale of real estate in Alexandria, Virginia, to which appellee had legal title, but which appellant claimed was held in trust for herself and others. Among defenses pleaded in bar was a final judgment of the Corporation Court of Alexandria, Virginia, between the same parties, involving the same property. Upon the pleadings and record the District Judge held said judgment to be res judicata, and entered judgment accordingly. We agree with that ruling.
2
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
107 Ill. App.2d 346 (1969)
246 N.E.2d 314
In the Matter of the Estate of Charles Oliver Leake, Deceased.
James Leake and William Stephenson, Individually, and as Executors Under the Last Will and Testament of Charles Oliver Leake, Deceased, Plaintiffs-Appellees,
v.
James A. Million, Edna Haigh, Allie Winchester, The Salvation Army, Opal Stephenson King, et al., Defendants, James A. Million, et al., Defendants-Appellants.
Gen. No. 10,959.
Illinois Appellate Court Fourth District.
March 20, 1969.
*347 Cohn, Cohn and Korein, of East St. Louis (Joseph Cohn, of counsel), for appellants.
Harry G. Story and William T. Wilson, of Jacksonville, for appellees.
TRAPP, P.J.
Defendants, James A. Million, Edna Haigh and Allie Winchester, who are the sole heirs of Charles Oliver Leake, testator, appeal from a decree of the Circuit Court, construing the will of the testator on complaint of the plaintiff executors, James Leake and William Stephenson.
In substance the will in question first left all property to the testator's wife, and then provided:
"Item FOUR: In the event my wife should predecease me, then and in that event I give and bequeath all the rest and residue of my estate to be divided as follows:
"To The Salvation Army, a one-seventh part;
"To Mollie Harney, a one-fourteenth part;
"To Minnie Young, a one-fourteenth part;
"To Charles Bramham, a one-seventh part;
"To Nettie Leake, a one-seventh part;
"To William Stephenson, a one-seventh part;
"To James Leake, a one-seventh part;
"To Opal Stephenson, a one-seventh part;
"In case of the death of MOLLIE HARNEY, MINNIE YOUNG, or either of them, then and in that event the share of the respective parties shall revert back to my residuary estate, and be divided equally among the remaining heirs of my estate. In case of the death of NETTIE LEAKE, JAMES LEAKE and OPAL STEPHENSON, their respective shares shall be distributed among the heirs of said decedents the same as they shall distribute their own estate."
*348 The testator died July 17, 1964, leaving the will dated July 17, 1944, from which the foregoing excerpt is taken. None of the named beneficiaries were heirs of the testator. The testator's wife, and residuary beneficiaries, Mollie Harney, Minnie Young, Charles Bramham and Nettie Leake, all predeceased the testator. The existing residuary beneficiaries at the death of the testator were The Salvation Army, William Stephenson, James Leake and Opal Stephenson.
The deceased residuary beneficiary, Nettie Leake, died intestate and left descendants who survived the testator. The trial court entered a decree holding that the one-seventh share of Nettie Leake passed to her heirs.
The court held that the one-seventh share of Charles Bramham passed by section 49 of the Probate Act, chapter 3, § 49, Ill Rev Stats 1965, to the remaining residuary beneficiaries in equal shares. The decree also provided that by virtue of the trial court's construction of the will, the respective shares of Mollie Harney and Minnie Young passed to the residuary beneficiaries in equal shares and that the heirs at law of the testator, James A. Million, Edna Haigh and Allie Winchester take nothing under the will and have no interest in the estate of Charles Oliver Leake.
Defendants first contend that there is no ambiguity in the will requiring construction, and second that the gift over in the event of the prior deaths of Mollie Harney and Minnie Young is clearly to the heirs at law of the testator.
[1] Since the beneficiaries of the residuary estate are in no instance heirs of the testator, it is not possible to have the share of Mollie Harney or Minnie Young "revert back to my residuary estate" and at the same time be given to the testator's heirs at law, who are in no instance, included in the residuary estate. The question whether the will required a construction justifies no extended discussion. It did require construction.
*349 In support of their contention that the testator intended the lapsed gifts to Mollie Harney and Minnie Young to go to the heirs at law, defendants argue that to give the said shares to the residuary beneficiaries would render meaningless the following language:
"Then and in that event the share of the respective parties shall revert back to my residuary estate and be divided equally among the remaining heirs of my estate."
The reason given for this position is that under the antilapse statute, chapter 3, § 49, Ill Rev Stats 1965, these shares would have gone to the residuary estate without the quoted provision and, therefore, the result reached by the court makes the provision unnecessary and therefore meaningless. They also argue that the primary meaning of the word "heirs" is those persons who would take under the descent statute, and in the absence of compelling reasons otherwise the words must be construed to mean heirs at law as defined by said statute.
The first contention is not convincing for several reasons. It presupposes an intention based upon an antilapse statute which did not exist in this form when the will was drawn. The provision of the antilapse statute in 1944 was confined to descendants of the testator. At the time the will was executed there would have been an intestacy except for Item FOUR of the will. Further, defendants' analysis is confined to one aspect of the provisions of Item FOUR of the will. A different provision was made in the case of the death of other legatees, i.e., Nettie Leake, James Leake and Opal Stephenson. In their case the share was to go to their heirs "the same as they shall distribute their own estate." The shares of these latter persons would not have been handled in the same manner by the antilapse statute in effect at the time of the execution of the will, or the one in effect at the time *350 of death. For some reason the testator made no provision for the prior death of Charles Bramham or William Stephenson. Finally, if the word heirs in the Item FOUR of the will were to be taken to mean heirs at law, it would render meaningless the provisions therein that "the share of the respective parties shall revert back to my residuary estate."
Defendants cite numerous Illinois cases which they say sustain the principle that the primary meaning of the word heirs is heirs at law as defined by the statute of descent, and that without compelling evidence from the language of the will or from extrinsic sources, the primary meaning must be accepted. Dillman v. Dillman, 409 Ill. 494 at 502, 100 NE2d 567, supports this general statement. Also, in citing In re Estate of Fahnestock, 384 Ill. 26, 50 NE2d 733, it states: "On the other hand, the technical meaning of the word `heirs' will not be given effect to defeat the obvious intention of a testator." Many of the cases cited by defendants in which the question of the meaning of the word "heirs" arises, are cases in which the question really is whether the word heirs in the particular context is a word of purchase, that is naming those who take, or a word of limitation, meaning the indefinite succession of descendants with the resulting application of the Rule in Shelley's case to establish a fee simple estate in the named life tenant. See Lydick v. Tate, 380 Ill. 616, 44 NE2d 583; Havely v. Comerford, 343 Ill. 90, 174 NE 830; Fay v. Fay, 336 Ill. 299, 168 NE 359 and Meeker v. Steepleton, 309 Ill. 337, 141 NE 158.
[2] It has been stated by the Supreme Court of Illinois in many cases and in many forms that the paramount rule in construction of a will is to ascertain and give effect to the intention of the testator. Continental Illinois Nat. Bank & Trust Co. v. Harris, 359 Ill. 86 at 95, 194 NE 250. In Bowe-Parker, Page on Wills, Vol 4, p 421, § 34.8, recognition is given to a secondary meaning of heirs when dictated by the context as follows:
*351 "Unless the context of the will or the surrounding circumstances show a contrary intention, `heirs' is used in its technical or prima facie meaning, and not in the secondary meaning of devisees or legatees. However, the context may show that the word `heirs' means devisees or legatees."
In Thompson on Wills, 3rd ed, p 414, § 265, it is said:
"It is held that the word `heirs' when used in a will is flexible and should be so construed as to give effect to the intention of the testator as manifested by the will."
and on p 418, § 267:
"In order to give effect to the intention of the testator as gathered from the context of the will and the surrounding circumstances, the word `heirs' may be construed to mean beneficiaries previously mentioned in the will as devisees or legatees, even where such beneficiaries are not in fact heirs, if the context shows an intention to include them."
See also 36 Ill Law and Practice, Wills, p 334, § 244.
An outstanding circumstance in respect to the present will is the fact that none of the defendants, who are now the sole heirs, is a named beneficiary in the will under any contingency. There is evident a plan on the part of the testator to provide for the contingency of the death of certain named beneficiaries. This plan, so far as it is executed, divides these beneficiaries into two groups. As to one group the share is left to the heirs of the beneficiaries in the manner that the beneficiaries provide for distribution of their own estates. As to another group the share is to revert to the residuary estate. The language of the clause is inconsistent with any intention of the testator that his heirs, in the statutory meaning, are to take under any combination of events.
*352 [3] Our courts have also subscribed to the principle that where the same words are used in different parts of a will they should, if possible, be given the same meaning. Abrahams v. Sanders, 274 Ill. 452 at 458, 113 NE 737. Here in Item FOUR of the will, the testator provided as to the contingency of death of Nettie Leake and others that "their respective shares shall be distributed among the heirs of said descendants the same as they shall distribute their own estate." Certainly in this clause the testator was equating the word "heirs" to distributees.
The testator, in Item FOUR in the introductory portion, gave and bequeathed "all the rest and residue of my estate" to nonheirs. In the same item of the clause in question he provided that the "shares of the respective parties shall revert back to my residuary estate." We cannot think that "my residuary estate" in the second portion of the item meant anything different from "all the rest and residue of my estate" in the first portion. Since the contingency concerned the absence of one beneficiary of the gifts of the residue, the provision that the share should revert back to "my residuary estate" would seem to indicate that the testator was referring to the same residuary provision that he had just established. Some significance can be attributed to "revert back" in that such reference is to something that was placed somewhere and had been taken away. The term "revert to my estate" has been held to mean "return to the aggregate of all the property which I may leave at my death." Downing v. Grigsby, 251 Ill. 568, 96 NE 513 and Comisky v. Moore, 26 Ill.2d 494 at 499, 187 NE2d 256. The shares provided for Mollie Harney and Minnie Young had come from the residue of the estate and such was the only place to which they could "return."
We cannot overlook the fact that the word "heirs" does not stand alone. The subject matter of the clause is the contingency of the loss of one or more members of a *353 named group, and the provision is that such share "shall revert back to my residuary estate and be equally divided among the remaining heirs of my estate." The normal construction would be that when the testator is speaking of a group he has named and of the loss of a member of the group, his reference to those "remaining" is a reference to the same group. It is also logical to assume that since the testator is speaking of a group when he uses the term "revert back" he means the same group because it is difficult to conceive a share literally reverting back to a place it had never been. See Johnson v. Askey, 190 Ill. 58, 60 NE 76.
In other jurisdictions where the context created by previous mention of persons as devisees or legatees indicated it, a subsequent reference to "my above named heirs," or the like, has been construed to mean my above named devisees or legatees. Eisman v. Poindexter, 52 Ind 401 (1876). See also cases cited in 70 ALR 583. In re Widmeyer, 28 Pittsb LJNS (Pa) 208, noted in the annotation, included certain churches in a residuary gift providing for division among "all the aforesaid heirs herein mentioned."
[4] It is a fair judgment the testator's will disclosed a simple plan. This first left everything to his wife and if she predeceased him to certain named beneficiaries, none of whom were, in fact, heirs of the testator. It was his further intention in the event of lapse of some of the gifts to give the share to such persons as the beneficiary provided for in his own estate, and in the event of lapse of other gifts to redistribute among the remaining residuary beneficiaries. We would do violence to the direction to revert back to the residuary estate, if we were to assign those lapsed shares to persons not in the residuary clause. We do not think that adopting a secondary meaning of heirs as beneficiaries does violence to the context, especially where in the same provision the word *354 heirs in one instance would necessarily mean distributees.
The decree of the Circuit Court is affirmed.
Affirmed.
SMITH and CRAVEN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-7-2005
USA v. Wilson
Precedential or Non-Precedential: Precedential
Docket No. 04-1918
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Wilson" (2005). 2005 Decisions. Paper 775.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/775
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
AMENDED
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1918
UNITED STATES OF AMERICA
v.
ESCO WILSON,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 03-cr-00005)
District Judge: Honorable Christopher C. Conner
Argued February 18, 2005
Before: SLOVITER, AMBRO
and ALDISERT, Circuit Judges
(Filed July 1, 2005)
Andrew F. Schneider, Esquire (Argued)
101 Mechanics Street
Doylestown, PA 18901
Counsel for Appellant
Thomas A. Marino
United States Attorney
Theodore B. Smith, III (Argued)
Assistant U.S. Attorney
Office of the United States Attorney
Federal Building, Suite 220
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Esco Wilson appeals the District Court’s denial of his
motion to suppress evidence taken from a bag in the trunk of his
car. We affirm.
I. Factual Background and Procedural History
On the morning of September 16, 2001, Trooper Brian
Overcash of the Pennsylvania State Police stopped Wilson, who
2
was traveling west on the Pennsylvania Turnpike, for a traffic
violation. Wilson concedes that the initial traffic stop was valid.
Wilson gave Overcash a valid driver’s license and a car
rental agreement. Overcash then returned to his patrol car to
prepare a traffic citation. During this process, he examined the
rental car agreement and noticed that the car should have been
returned a month earlier. Overcash ran a check on Wilson’s
rental car and found that the car had not been reported stolen.
Overcash then returned to Wilson’s car and asked Wilson
to exit and stand at its rear. He gave Wilson the citation,
returned his documents, and told him that he was free to leave.
Wilson took a few steps back toward his car. At the suppression
hearing, Overcash first testified that he then began to question
Wilson about the rental car agreement. Overcash then testified,
when the Pennsylvania state judge presiding over the hearing
asked for clarification of the sequence of events, that he asked
Wilson if he could question him about the rental car agreement,
and Wilson turned around and walked back toward him.
Overcash proceeded to ask Wilson questions about the
rental car and Wilson’s work and travel plans. Wilson told
Overcash that he usually rented cars for a month because he
traveled a lot. He also told Overcash that he worked selling
master compact discs (“CDs”) to music stores for approximately
$500 per disc. When asked where he was going, Wilson said
that he was on his way to Pittsburgh to deliver the CDs he had
3
with him, and he offered to show these CDs to Overcash.
Overcash then walked toward the two female passengers
in Wilson’s car and asked them where they were going. The
passengers told Overcash that they were on their way to
Virginia. Overcash returned to where Wilson was standing at
the rear of the car and told Wilson that the women had told him
they were going to Virginia, not to Pittsburgh. Wilson appeared
a bit nervous and told Overcash that he had not told his
passengers where they were going but that nothing unusual was
going on. Wilson again offered to show his CDs to Overcash,
but Overcash declined and went to his patrol car to request
support.
When Overcash returned to Wilson’s car, Wilson opened
the trunk and showed Overcash a CD with a $12.00 price tag on
it. Overcash saw two bags in the trunk—one red and one green.
Wilson told Overcash that the red bag belonged to his
passengers. The women confirmed this, told Overcash that there
was nothing illegal in the bag, and gave Overcash permission to
search it. Overcash found clothing and personal items inside.
Wilson told Overcash that the green bag belonged to him
and that it also contained clothing. Overcash asked if he could
examine the bag’s contents, and Wilson consented. Overcash
unzipped the bag and found a brick of cocaine inside. When he
looked at Wilson, Wilson had already turned around and placed
his hands behind his back.
4
Overcash then arrested Wilson and his passengers and
transported them to the police barracks. At the barracks,
Overcash read Wilson his Miranda rights and Wilson stated that
he did not wish to speak to the police. Later, Wilson changed
his mind and, after he was read his rights again, gave both
written and oral statements acknowledging that the cocaine
belonged to him.
Wilson was charged under Pennsylvania law with one
count of possession of a controlled substance with intent to
deliver and one count of exceeding the maximum speed limit.
Judge Edward E. Guido, of the Cumberland County Court of
Common Pleas, held a hearing on Wilson’s motion to suppress
the evidence found in his car. Judge Guido granted Wilson’s
motion in June 2002, ordering the exclusion of the cocaine and
Wilson’s post-arrest statements as the fruits of an illegal
detention. In September 2002, Pennsylvania entered a nolle
prosse.
The federal Government subsequently obtained an
indictment against Wilson based on the same incident. Wilson
again moved to suppress the cocaine and his post-arrest
statements, and the parties agreed that the matter would be
submitted based on the notes of testimony from the
Pennsylvania suppression hearing. No additional evidence was
taken. In October 2003, the District Court denied Wilson’s
motion, determining, inter alia, that Wilson consented to
Overcash’s questioning after the conclusion of the traffic stop,
5
that no seizure had occurred, and that Wilson’s consent to the
search of his bag was voluntary. Wilson entered a conditional
guilty plea. He reserved his right to appeal the denial of his
suppression motion, and that issue is now before us.1
II. Discussion
A. Standard of Review
As a preliminary matter, we must determine what the
appropriate standard of review is for this case given its unique
procedural posture. Ordinarily we review a district court’s
“denial of the motion to suppress for clear error as to the
underlying facts, but exercise[] plenary review as to its legality
in light of the [C]ourt’s properly found facts.” United States v.
Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal citations
omitted). Our dissenting colleague, however, believes that in
this case we should exercise plenary review over both the
District Court’s factual determinations and its conclusions of
law because the District Court relied on the transcript of the
Commonwealth suppression hearing in deciding Wilson’s
motion to suppress in the federal case instead of holding another
evidentiary hearing. This position has merit, as there is no
obvious need to defer to the District Court’s factual
determinations when it did not engage in any independent fact-
1
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
6
finding, and it is one that we have adopted in our habeas corpus
jurisprudence under 28 U.S.C. § 2254. See Hardcastle v. Horn,
368 F.3d 246, 254 (3d Cir. 2004) (“Because the District Court
‘d[id] not hold an evidentiary hearing and engage in independent
fact-finding, but rather limit[ed] the habeas evidence to that
found in the state court record,’ our review of its final judgment
is plenary.” (quoting Scarborough v. Johnson, 300 F.3d 302,
305 (3d Cir. 2002))).
With this in mind, we briefly address Wilson’s argument
that we should not defer to the District Court’s finding that he
consented to further questioning by Overcash after the
completion of the traffic stop. The District Court, in its
recitation of the facts of this case, determined that Overcash
asked Wilson for permission to ask him about the rental
agreement and that Wilson “acquiesced” to this request. As our
dissenting colleague points out, however, the bulk of Overcash’s
testimony indicates that he began asking Wilson questions about
his rental car agreement without first requesting permission to
engage in that line of inquiry. In this light, and because the
Court of Common Pleas judge who had the opportunity to
observe Overcash’s testimony explicitly found that Overcash
simply began asking Wilson about the rental car agreement, we
conclude that the District Court’s factual determination to the
contrary cannot stand under either clearly erroneous or de
novo review.
Because Wilson would prevail on this argument under
7
either standard of review, we reserve for another day decision on
whether plenary review is appropriate as to all issues in cases
such as this one.2 Accordingly, we now turn to Wilson’s main
argument—that the District Court should be reversed because
his interaction with Overcash after the conclusion of the traffic
stop was not a mere encounter but rather an unlawful seizure.
B. The District Court’s Determination that Wilson
was Not Seized
“[A] person is ‘seized’ only when, by means of physical
force or a show of authority, his freedom of movement is
restrained.” United States v. Mendenhall, 446 U.S. 544, 553
(1980). Put another way, no seizure has occurred if “a
reasonable person would feel free to disregard the police and go
about his business, or ultimately whether a reasonable person
would feel free to decline the officers’ requests or otherwise
terminate the encounter. . . .” United States v. Kim, 27 F.3d 947,
951 (3d Cir. 1994) (internal citations omitted).
Wilson does not contend that his seizure pursuant to the
2
We note that the District Court did not rely on its finding that
Wilson had consented to questioning about his rental car
agreement in its analysis of whether the Fourth Amendment
mandated suppression of the evidence found in Wilson’s trunk.
8
traffic stop was unlawful.3 As other courts have held, however,
“[a] traffic stop may become a consensual encounter, requiring
no reasonable suspicion, if the officer returns the license and
registration and asks questions without further constraining the
driver by an overbearing show of authority.” United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000); see also United
States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998) (“When the
[traffic] stop is over and its purpose served, however, mere
questioning by officers, without some indicated restraint, does
not amount . . . to . . . a seizure under the Fourth Amendment.”).
We must therefore determine whether the interaction between
Wilson and Overcash after the issuance of the traffic citation
and return of Wilson’s license and rental agreement was a
consensual encounter or a second seizure.
The District Court, comparing the facts of this case to
those of United States v. Drayton, 536 U.S. 194 (2002),
concluded that Wilson was not seized after the conclusion of the
traffic stop. In Drayton, the Supreme Court held that no seizure
had occurred when bus passengers were questioned by
plainclothes officers, even though the passengers were in a
confined space and the officers displayed their badges, when
“[t]here was no application of force, no intimidating movement,
no overwhelming show of force, no brandishing of weapons, no
3
A routine traffic stop is considered a seizure under the Fourth
Amendment. See Berkemer v. McCarty, 468 U.S. 420, 436–37
(1984); Delaware v. Prouse, 440 U.S. 648, 653 (1979).
9
blocking of exits, no threat, no command, not even an
authoritative tone of voice.” Id. at 204. Wilson argues that his
case is distinguishable from Drayton because he was isolated on
the side of the highway while Overcash questioned him.
However, this fact is true of many traffic stops, and the record
here shows no circumstances so intimidating that, in
combination, they would have caused a reasonable person to
perceive that he was not free to leave. See Florida v. Bostick,
501 U.S. 429, 437 (1991) (“Where the encounter takes place is
one factor, but it is not the only one.”).4
Overcash was the only officer on the scene. After the
issuance of the traffic citation, he returned Wilson’s documents
4
Our dissenting colleague argues that Drayton should not be
applied here because, unlike the bus passengers in Drayton,
Wilson had already been seized once—by virtue of the traffic
stop—before Overcash began questioning him about issues
beyond the scope of the traffic stop. This factual distinction
does not persuade us to conclude that the factors the Supreme
Court deemed relevant to its totality of the circumstances
analysis in Drayton are not also among the factors we may
consider in our totality of the circumstances analysis here. As
the dissent emphasizes, the fact that Wilson was questioned after
he had already been seized once is a consideration that is
relevant to that analysis. But the traffic stop is just one factor
that we must weigh against the other circumstances present in
this case to determine whether the continued encounter between
Wilson and Overcash was a seizure.
10
and told Wilson that he was free to leave. Wilson answered all
of Overcash’s subsequent questions without protest. In addition,
just as in Drayton, there is no indication that Overcash made any
intimidating movement or show of force or that he asked Wilson
questions using an authoritative tone of voice. Accordingly, we
agree with the District Court that, under the totality of the
circumstances, Wilson was not seized at any point during his
encounter with Overcash subsequent to the issuance of the
traffic citation.5 Cf. United States v. Bustillos-Munoz, 235 F.3d
505, 515 (10th Cir. 2000) (holding that detention resulting from
a traffic stop ended and a consensual encounter began when
state trooper returned suspect’s license and registration,
informed the suspect that he was free to leave, and then asked
whether there were weapons or drugs in the car when there was
no evidence “of a coercive show of authority, such as the
presence of more than one officer, the display of a weapon,
5
Both Wilson and our dissenting colleague suggest that
Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), the case
relied on by the Commonwealth court in suppressing the
evidence in the state proceedings, compels the opposite
conclusion. We do not believe that Freeman is even relevant
here, as “[i]t is a general rule that federal . . . courts will decide
evidence questions in federal criminal cases on the basis of
federal, rather than state, law.” United States v. Rickus, 737
F.2d 360, 363 (3d Cir. 1984) (holding, inter alia, that federal
law applied to defendant’s motion to suppress evidence found
pursuant to search of the trunk of his car).
11
physical touching by an officer, or his use of a commanding tone
of voice indicating that compliance might be compelled”)
(internal quotation omitted)). We must therefore consider
whether Wilson’s subsequent consent to the search of the bag in
his trunk was voluntary.6
C. The District Court’s Determination that Wilson’s
Consent to the Search of his Bag was Voluntary
“[A] search conducted pursuant to consent is one of the
specifically established exceptions to the warrant requirement.”
Givan, 320 F.3d at 459. The voluntariness of an individual’s
consent is a question of fact to be determined from all the
circumstances. Id. “[T]he critical factors comprising a totality
of the circumstances inquiry include the setting in which the
consent was obtained, the parties’ verbal and non-verbal actions,
and the age, intelligence, and educational background of the
consenting [party].” Id.
The District Court’s conclusion that Wilson’s consent to
6
Because we have determined that no seizure occurred, i.e.,
that Wilson’s continued encounter with Overcash was
consensual, we need not reach Wilson’s argument that Overcash
did not have a reasonable articulable suspicion of criminal
activity that justified his further questioning. See Bostick, 501
U.S. at 433–34 (stating that consensual encounters do not
implicate the Fourth Amendment).
12
the search of his bag was voluntary is amply supported by the
record. As discussed above, Wilson was informed that he was
free to leave. He then cooperated with Overcash throughout the
encounter, as he answered all of Overcash’s questions, offered
to show Overcash his CDs and initiated opening the trunk of his
car in order to do so. As the District Court found, there is no
indication in the record that “Wilson was unable by virtue of age
or intelligence to understand the situation.” In this context, the
District Court hardly erred in finding that Wilson’s consent to
the search was voluntary. Overcash’s search of Wilson’s bag
therefore did not violate the Fourth Amendment.
III. Conclusion
We share our dissenting colleague’s concern about the
procedural history of this case, particularly because the
Government could not represent at argument whether it
followed in Wilson’s case its usual policy for determining
whether cases in which suppression motions were granted in
state courts should be re-prosecuted in the federal system. It is
also disturbing that the Department of Justice Guidelines
implementing the Petite Policy7 may not have been faithfully
7
“The Petite Policy, deriving its name from Petite v. United
States, [361 U.S. 529 (1960)], ‘precludes the initiation or
continuation of a federal prosecution, following a prior state or
federal prosecution based on substantially the same act(s) or
transaction(s),’” absent certain extenuating circumstances. Ellen
13
followed in this case.8
As the dissent acknowledges, however, Department of
Justice guidelines and policies do not create enforceable rights
for criminal defendants. See United States v. Gomez, 237 F.3d
238, 241 n.1 (3d Cir. 2000) (noting that any argument by the
defendant that the U.S. Attorneys’ Manual created rights
entitling him to relief “would be against the weight of judicial
authority”); see also, e.g., United States v. Fernandez, 231 F.3d
S. Podgor, Dep’t of Justice Guidelines: Balancing
“Discretionary Justice,” 13 Cornell J.L. & Pub. Pol’y 167, 179
(2004) (quoting U.S. Attorneys’ Manual § 9–2.031 (2003)); see
also United States v. Grimes, 641 F.2d 96, 101 & n.17 (3d Cir.
1981) (noting that after Bartkus v. Illinois, 359 U.S. 121 (1959),
“in which the Supreme Court held that the Double Jeopardy
Clause does not bar a state from prosecuting and convicting a
defendant who previously has been tried for the same acts in
federal court,” the Department of Justice “adopted a federal
policy” (later known as the Petite Policy) that “barred a federal
trial following a state prosecution for the same acts ‘unless the
reasons are compelling’” (quoting Dep’t of Justice Press Release
(Apr. 6, 1959)).
8
Our Court has previously noted, however, that the Petite
Policy may not even be applicable to cases in which a federal
prosecution begins after the entry of a nolle prosse in state court.
See United States v. Agee, 597 F.2d 350, 360 n.32 (3d Cir.
1979).
14
1240, 1246 (9th Cir. 2000) (“[I]t is clear that the USAM [U.S.
Attorneys’ Manual] does not create any substantive or
procedural rights. . . . The USAM explicitly states that ‘[t]he
Manual provides only internal Department of Justice guidance.
It is not intended to, does not, and may not be relied upon to[,]
create any rights, substantive or procedural, enforceable at law
by any party in any manner civil or criminal.’” (quoting U.S.
Attorneys’ Manual § 1–1.100)); United States v. Blackley, 167
F.3d 543, 548–49 (D.C. Cir. 1999) (same); United States v.
Myers, 123 F.3d 350, 356 (6th Cir. 1997) (same); United States
v. Piervinanzi, 23 F.3d 670, 682 (2d Cir. 1994) (same); United
States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (same).
Thus, although we do not endorse the Department’s failure to
follow its own policies, particularly in cases such as this one that
raise double jeopardy concerns, we are constrained to conclude
that any such failure that may have occurred here nevertheless
does not mandate (or even allow) relief for Wilson.9
Our Court has also previously expressed its
dissatisfaction with the Petite Policy and, moreover, with the
Supreme Court’s application of the dual sovereignty principle to
hold that prosecution of the same crime in both the federal and
state systems does not violate the Double Jeopardy Clause. See
9
Indeed, it appears that Wilson’s counsel recognized the same
constraints, as he made no arguments before us relating to either
the Department’s apparent failure to follow the Petite Policy or
to the Double Jeopardy Clause more generally.
15
generally Grimes, 641 F.2d at 100–04 (questioning continuing
vitality of that jurisprudence particularly because the seminal
cases were decided prior to Benton v. Maryland, 395 U.S. 784
(1969), which “unqualifiedly held that the Fifth Amendment
Double Jeopardy provision applies to the states”). And our
dissenting colleague may be correct that the time has come for
the Supreme Court to revisit this issue, particularly in light of
Smith v. Massachusetts, 543 U.S. __, 125 S. Ct. 1129 (2005), in
which the Court revisited the scope of the Double Jeopardy
Clause. See id. at 1135–37 (holding that the Double Jeopardy
Clause was violated when the state trial judge ordered a mid-
trial acquittal on one charge and then proceeded to reconsider
that acquittal at the end of the case and that “[i]f, after a facially
unqualified midtrial dismissal of one count, the trial has
proceeded to the defendant’s introduction of evidence, the
acquittal must be treated as final, unless the availability of
reconsideration has been plainly established by pre-existing rule
or case authority expressly applicable to midtrial rulings on the
sufficiency of the evidence”).
Under current precedent, however, there is no double
jeopardy bar to a prosecution such as that by the United States
against Wilson. See Agee, 597 F.2d at 360 n.32 (noting that any
double jeopardy challenge raised by defendant, who was tried in
the federal system after his state suppression motion was granted
16
and a nolle prosse was entered in the state system, would fail).10
As we previously wrote in Grimes, despite our concerns about
such prosecutions, “we do not believe that we are the proper
forum to overturn a legal directive from the Supreme Court.”
641 F.2d at 104. Thus, notwithstanding the policy issues raised
by this case, we conclude that Wilson’s prosecution in federal
court was proper and that, for the reasons stated in Section II of
this opinion, the search of Wilson’s bag did not violate the
Fourth Amendment. Accordingly, we affirm the District Court’s
determination.
10
As the District Court held, collateral estoppel also provides
no bar to the United States’s relitigation of issues relating to the
search of Wilson’s car that had previously been litigated in the
Pennsylvania court. See Agee, 597 F.3d at 360 (holding that the
doctrine of collateral estoppel did not prevent the United States
from relitigating defendant’s motion to suppress even though
that motion had already been granted by the state court because,
inter alia, “[t]he United States was not a party to the suppression
hearing held in the state court nor were the actions of its officers
under consideration in that forum”). In Agee we also
emphasized that, “‘[i]n determining whether there has been an
unreasonable search and seizure by state officers, a federal court
must make an independent inquiry, whether or not there has
been such an inquiry by a state court, and irrespective of how
any such inquiry may have turned out. The test is one of federal
law, neither enlarged by what one state court may have
countenanced, nor diminished by what another may have
colorably suppressed.” Id. at 360 n.34.
17
ALDISERT, Circuit Judge, Dissenting.
Because I agree with the decision of the Pennsylvania
Common Pleas Court in suppressing the evidence in this case,
I would hold that the District Court erred in deciding that Esco
Wilson was not seized for purposes of the Fourth Amendment
at the time he consented to the search of his automobile at a
traffic stop for speeding on the Pennsylvania Turnpike.
Accordingly, I respectfully dissent.
As the majority opinion makes clear, Wilson was arrested
by a Pennsylvania State Trooper following a search of his
stopped automobile and then prosecuted by the Commonwealth
in the Common Pleas Court of Cumberland County where he
filed a motion to suppress evidence obtained in the search. The
Common Pleas Court granted the motion because the judge
determined that Wilson’s consent was not an “independent act
of free will.” This being the only evidence, the prosecution
elected to nolle prossequi.11
Thereafter, federal authorities arrested Wilson and
11
“Nolle prosequi, filed 9-13-02. M.L. Ebert, Esq. Reason:
6/18/02 Court of Common Pleas suppressed drug evidence and
all post-arrest statements thereby rendering this case non-
prosecutable. Costs in the amount of $357.50 will be paid by the
county. 8-02-02. Edward E. Guido, J.” Criminal Docket, Court
of Common Pleas of Cumberland County, Docket Number CP-
21-CR-0002085-2001, Page 6 of 7.
18
commenced a prosecution in the United States District Court for
the Middle District of Pennsylvania on federal charges arising
from the same incident. In response to Wilson’s motion to
suppress, the government agreed not to offer any new evidence,
but stipulated that the federal court could decide the motion
solely on the basis of the transcript of the earlier state
proceeding.
What appears on the surface to be a blatant exercise of
judge shopping, that in theory smacks of double jeopardy, is
justified by the government on the basis of what has come to be
known as the Petite Policy, a procedure of the Department of
Justice (“DOJ” or “the Department”) that was severely criticized
by this Court in United States v. Grimes, 641 F.2d 96, 100-104
(3d Cir. 1981) (Adams and Sloviter, Circuit Judges, Knox,
District Judge).
The Petite Policy allows the Department, in certain
circumstances, to institute a federal prosecution based on
substantially the same act(s) or transaction(s) involved in a prior
state or federal proceeding where the defendant has previously
prevailed. See Rinaldi v. United States, 434 U.S. 22, 27 (1977);
Petite v. United States, 361 U.S. 529 (1960).
I.
At oral argument in this case, the court asked the
government lawyer if the Justice Department gave the local
federal prosecutor authority to commence a federal prosecution.
This colloquy followed:
AUSA: [The Petite] Policy provides that
there are various circumstances
19
under which the Department will
approve a subsequent federal
prosecution on the same facts as a
state prosecution and one of the
circumstances under which the
Department will do so is where
there has been a suppression of
evidence based on state law or on
an erroneous interpretation of
federal law by a state court.
COURT: And that was done here? Your
office received the approval of
the DOJ?
AUSA: I do not know whether that was
done here.
COURT: Why is this case here? Freedman
[the Pennsylvania Supreme Court
Case relied on by the Pennsylvania
Court of Common Pleas] involved
the interpretation of federal
constitutional law. What makes this
case extremely unusual is that I
have never seen a procedure where
the federal prosecution proceeds,
but then relies exclusively on the
20
transcript of the state proceeding?
Are you familiar with any other
precedent?
AUSA: I have done it many times myself
and it happens frequently. It does
not happen all the time but it does
happen and it happens where we
feel that there was an injustice
done.
I am troubled by a policy that automatically triggers a
federal prosecution merely because “there has been a
suppression of evidence based on state law or on an erroneous
interpretation of federal law by a state court.” I believe this
policy generates serious problems. It increases the caseload in
federal courts, runs counter to modern concepts of federalism,
denigrates the quality of the state-court system, trial and
appellate, demeans the professionalism of state-court judges
who have more experience, indeed much more experience, in
deciding federal constitutional questions in criminal proceedings
than federal judges and in view of the recent teachings of Smith
v. Massachusetts, 543 U.S. ___, 125 S.Ct. 1129 (2005),
probably violates the Double Jeopardy Clause of the United
States Constitution.
The very admission in open court that the federal
government will initiate a new prosecution in cases where state
courts suppress evidence has a pernicious effect on the rights of
21
state-court defendants seeking to vindicate Fourth Amendment
rights. The federal government’s message to state judges is
clear: “Do not suppress evidence. If you do, we’ll institute a new
federal prosecution on the same facts even though the
investigation and arrest were made by state authorities and the
state conducted the prosecution.” This policy allows the United
States, in effect, to use federal courts to review any state judge’s
federal constitutionally-based decision on a motion to dismiss.
To me, this is appalling.
I express the views that follow for the purpose of: (1)
inviting the Supreme Court to re-examine its older cases on the
Double Jeopardy Clause in light of its cases making the Bill of
Rights applicable to state prosecutions by means of the
Fourteenth Amendment; and (2) directing the attention of
Congress to this practice.
II.
This practice of instituting a federal prosecution when
“there has been a suppression of evidence based on state law or
on an erroneous interpretation of federal law by a state court,”
which apparently “happens frequently” is not in accord with the
Department’s own guidelines implementing the Petite Policy.
(See Oral Argument (quoted in full above).) First, the guidelines
require, as a procedural prerequisite to initiating a federal
prosecution subsequent to a state prosecution, approval “by the
appropriate Assistant Attorney General.” U.S. Dep’t of Justice,
United States Attorneys’ Manual § 9- 2.031 (1997). There is no
indication that approval was given in this case, and it seems
unlikely that approval was given because the AUSA arguing the
22
appeal did not know whether it had been given or not.
Second, and more importantly, the guidelines require
that a “substantial federal interest” be involved which was
“unvindicated” at the state level and which can be effectively
vindicated at the federal level through a “conviction by an
unbiased trier of fact.” Id. The determination about whether a
federal interest is involved is to be made on a “case-by-case”
basis with a presumption “that a prior prosecution, regardless of
result, has vindicated the relevant state interest.” Id.
Initially, I note that the explanation of the policy by the
AUSA at oral argument seems at odds with a careful “case-by-
case” approach. More fundamentally, the following inquiries
expose what I take to be unwarranted assumptions, implicit in
the Department’s guidelines, about what it takes to vindicate a
federal interest: (1) Whether the federal interest in prosecuting
drug dealers is exclusively a federal interest, or, if the interest is
not exclusively federal, whether federal law promotes a far more
effective vindication of the interest than the state law designed
to vindicate the same interest; and (2) Whether federal judges
have a superior competence, by reason of more experience, to
preside over criminal cases which present constitutional issues.
My answers, set forth below, lead me to question not only the
conformity of the procedure followed in this case with the
Department’s own guidelines,12 but also the continuing vitality
12
I am quick to recognize that this Court in Grimes, and all
other United States Courts of Appeals that have considered the
question recognize our inability to invoke the Department’s
policy as a bar to federal prosecution. See, e.g., United States v.
23
of the Petite Policy itself.
A.
It is helpful first to compare the federal and state statutes
and sentences for the charge of distributing and possessing with
intent to distribute a significant quantity of cocaine. In the
District Court, Wilson filed a conditional plea of guilty to 21
U.S.C. § 841(a)(1) for possession with intent to distribute more
than 500 grams of cocaine. After his motion to suppress was
denied, he was fined $300 and sent to jail for five years.
Pennsylvania law similarly prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a
controlled substance,” such as cocaine. 35 Pa. Stat. Ann. § 780-
113(a)(30) (2003). Sentencing for violation of 35 P.S. § 780-
113(a)(30) is governed by 18 P.S. § 7508(a)(2). Where the
offense involves at least 100 grams of cocaine, it provides for a
mandatory minimum sentence of five years in prison and a fine
Snell, 592 F.2d 1083 (9th Cir. 1979); United States v. Howard,
590 F.2d 564 (4th Cir. 1979); United States v. Frederick, 583
F.2d 273 (6th Cir. 1978); United States v. Thompson, 579 F.2d
1184 (l0th Cir. 1978) (en banc); United States v. Wallace, 578
F.2d 735 (5th Cir. 1978); United States v. Nelligan, 573 F.2d
251 (5th Cir. 1978); United States v. Hutul, 416 F.2d 607 (7th
Cir. 1969). The Supreme Court, in analogous contexts, has
concluded that Department policies governing its internal
operations do not create rights which may be enforced by
defendants against the Department. See United States v.
Caceres, 440 U.S. 471 (1979); Sullivan v. United States, 348
U.S. 170 (1954).
24
of $25,000 for first time offenders and seven years and a
$50,000 fine for repeat offenders. § 7508(a)(2)(iii). The
Pennsylvania law seems to punish drug dealers more effectively,
or at least more forcefully, than the federal law.
If the federal interest is in prosecuting drug dealers,
clearly a prosecution under the state statute would vindicate the
relevant federal interest. I refuse to accept the notion that the
federal interest is to demand convictions rather than
prosecutions. I see nothing in the Constitution or any statute that
so defines our federal interest.
There appears to be no reasonable justification for
federal prosecutors becoming modern day Girolamo
Savonarolas and insisting that because a cocaine dealer in a state
court was turned loose after a Fourth Amendment hearing, they
must prosecute again in order to combat wickedness and spread
holiness of life. If we can agree that the federal interest is to
insure that drug dealers be prosecuted, I submit that every state
in this Nation has a similar interest, and this leads to the next
question: Are state judges competent to try drug cases in state
criminal courts?
B.
The brute fact is that state-court trial judges have
more experience than federal judges in deciding federal
constitutional issues that arise in criminal prosecutions. For
example, in 2002, some 15.5 million criminal cases were filed
25
in state trial courts,13 while in the federal district courts there
were 67,000 in 2003 and 70,642 in 2004.14
The ratio of superiority of experience of state judges is
approximately 2250 to 1. This means that, as a group, state
judges had 2250 criminal cases to every one of their federal
counterparts.
In a more immediate locale, Pennsylvania Common
Pleas Court judges handled 155,049 criminal cases in 2002.15
The federal district judges in the three federal judicial districts
13
Examining the Work of the State Courts, 2003, (National
Center for State Courts) 38; see also id. at 40 (Table for 2002,
state by state except Mississippi, Oklahoma and Wyoming).
14
Judicial Business of the United States Courts: 2003 Annual
Report of the Director [hereinafter “Report”], Table D, available
at http://www.uscourts.gov/judbus2003/appendices/d.pdf (as of
Mar. 10, 2005).
15
2002 Caseload Statistics of the Unified Judicial System of
P e n n s y l v a n i a 9 , a v a i l a b l e a t
http://www.courts.state.pa.us/Index/Aopc/Research/caseloads/
2002Report.pdf (as of Mar. 10, 2005). The 2003 figure is
153,362. 2003 Caseload Statistics of the Unified Judicial System
of Pennsylvania 9, ava ilable at
http://www.courts.state.pa.us/Index/Aopc/Research/caseloads/
2003report.pdf (as of Mar. 10, 2005). In Philadelphia alone,
there were 15,092 new filings in 2003. Id. at 12.
26
in Pennsylvania handled only 1394.16 This means that, as a
group, Pennsylvania state judges had approximately 111
criminal cases to every one of their federal counterparts. In the
district courts of the entire Third Judicial Circuit in 2002 there
were 2939 criminal filings.17
To be sure, at the time the Supreme Court put its
imprimatur on the Petite Policy, state judges had little or no
experience with federal constitutional issues.
These cases were decided at a time when Fifth
Amendment Double Jeopardy did not bind the states. When the
Court decided Abbate v. Illinois, 359 U.S. 187, 194 (1959), and
held that “[t]he Fifth Amendment, like all other guaranties in the
first eight amendments, applies only to proceedings by the
federal government, . . . and the double jeopardy therein
forbidden is a second prosecution after a first trial for the same
offense under the same authority,” Benton v. Maryland, 395
U.S. 784 (1969), had not yet applied the Fifth Amendment
Double Jeopardy Clause to the states.
A popular saying seems appropriate here: “We’ve come
a long way, baby.”
The time has come for the Supreme Court to revisit the
issue, or for Congress to take ameliorative actions on the basis
of the empirical data set forth above; data that demonstrates the
overwhelming participation by state judges in criminal cases
16
Report, supra, note 2.
17
Id.
27
involving federal issues.
A brief list of the significant recurring federal
constitutional issues facing state judges every day includes:
Faretta v. California, 422 U.S. 806 (1975) (right to proceed
without counsel); Bruton v. United States, 391 U.S. 123 (1968)
(limited use of co-defendant’s confession); United States v.
Wade, 388 U.S. 218 (1967) (right to counsel during post-
indictment lineup identification); Miranda v. Arizona, 384 U.S.
436 (1966) (right to counsel during custodial interrogation);
Brady v. Maryland, 373 U.S. 83 (1963) (right to exculpatory
information in possession of prosecutor); Gideon v. Wainwright,
372 U.S. 335 (1963) (right to court-appointed counsel); Mapp
v. Ohio, 367 U.S. 643 (1961) (search and seizure).
III.
My analysis of the double jeopardy problems which
inhere in the Department’s Petite Policy begins with
endorsement of what this Court said in Grimes, and I
incorporate by reference the discussion set forth therein in Part
II. See 641 F.2d at 100-104. Succinctly, this Court is of the view
that “permitting successive state-federal prosecutions for the
same act may be viewed as inconsistent with what is a most
ancient principle in western jurisprudence that a government
may not place twice a person in jeopardy for the same offense.”
Id. at 100. We noted that the predicate of the seminal case
legitimating this policy, Bartkus v. Illinois, 359 U.S. 121 (1959),
was that the Fifth Amendment Double Jeopardy Clause did not
bind the states. Subsequently, Benton unqualifiedly held that the
provision does apply to the states. 395 U.S. at 794. After a
discussion of Supreme Court cases that followed Bartkus and
28
Abbate, we stated: “Whenever a constitutional provision is
equally enforceable against the state and federal governments,
it would appear inconsistent to allow the parallel actions of state
and federal officials to produce results which would be
constitutionally impermissible if accomplished by either
jurisdiction alone.” Grimes, 641 F.2d at 102. “The ban against
double jeopardy is not against twice being punished, but against
twice being put in jeopardy.” William B. Lockhart, Yale
Kamisar, Jesse H. Choper, Constitutional Law 696 n.a (1970)
(citing Downum v. United States, 372 U.S. 734 (1963)).
A.
The Supreme Court has recently reconsidered the scope
of double jeopardy protection in another context in Smith v.
Massachusetts. In determining that double jeopardy attaches
mid-trial where a judge ruled in favor of the defendant on a
motion for a required finding of not guilty on one of the charged
offenses, the Court considered it important that “the facts of this
case gave the petitioner no reason to doubt the finality of the
state court’s ruling.” Smith, 125 S.Ct. at 1135. The same is true
here. I find no indication in the record that Wilson was
forewarned that even if he prevailed in his state proceedings, he
would still have to face a second federal prosecution.
More importantly, the Court stated:
Our cases have made a single exception to the principle
that acquittal by judge precludes reexamination of guilt
no less than acquittal by jury: When a jury returns a
verdict of guilty and a trial judge (or an appellate court)
sets aside that verdict and enters a judgment of acquittal,
the Double Jeopardy Clause does not preclude a
29
prosecution appeal to reinstate the jury verdict of guilty.
United States v. Wilson, 420 U.S. 332, 352-353, 95
S.Ct. 1013, 43 L.Ed.2d 232 (1975). But if the
prosecution has not yet obtained a conviction, further
proceedings to secure one are impermissible:
“[S]ubjecting the defendant to postacquittal factfinding
proceedings going to guilt or innocence violates the
Double Jeopardy Clause.” Smalis v. Pennsylvania, 476
U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).
Id. at 1134 (emphasis added).
B.
Moreover, there has been action by Congress subsequent
to this Court’s 1981 decision in Grimes that has relevance here.
In 1996, Congress amended 28 U.S.C. § 2254 to
provide:
(d.) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States.
30
The Court has explained: “Congress specifically used
the word ‘unreasonable,’ and not a term like ‘erroneous’ or
‘incorrect.’ Under § 2254(d)(1)’s ‘unreasonable application’
clause, then, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000); see also Bell v. Cone, 535 U.S.
685, 694 (2002) (“The focus of the latter inquiry is on
whether the state court’s application of clearly established
federal law is objectively unreasonable, and we stressed in
Williams that an unreasonable application is different from an
incorrect one.”) (emphasis added); see also Brown v. Payton,
544 U.S. __, 125 S.Ct. 1432 (2005) (recent decision of the
United States Supreme Court affirming this principle).
There are important similarities between: (1) the
statutory presumption in habeas cases at § 2254(d) that the
state proceedings are presumed correct; and (2) the DOJ’s
Petite Policy that presumes that a prior prosecution, regardless
of the result, has vindicated the relevant federal interest. U.S.
Dep’t of Justice, United States Attorneys’ Manual § 9- 2.031
(1997).
Putting aside the question of double jeopardy, it seems
to me that if we are to put a defendant to the expense and
agony of a second trial under Petite, the government should be
put to the same test that Congress now requires of a habeas
petitioner under § 2254. The government should have to show
that the state court’s application of clearly-established federal
law is objectively unreasonable, rather than merely incorrect.
31
Absent a re-examination by the Supreme Court, it would take
Congressional action to replace the policy described at oral
argument in this case which allows a subsequent federal
prosecution “where there has been a suppression of evidence
based on state law or on an erroneous interpretation of federal
law by a state court.”
I now turn to the constitutional issues presented in the
case at bar.
IV.
The District Court erred in determining that
Pennsylvania State Trooper Overcash obtained effective consent
from Esco Wilson for the search of his bag and therefore erred
in its denial of Wilson’s motion to suppress the evidence
obtained from that search. This conclusion follows from a
determination that Wilson was not seized for purposes of the
Fourth Amendment. I begin with a discussion of the standard of
review.
The government urges that a number of questions of fact
and mixed questions of law and fact are contained in the
ultimate legal issue before us. It contends that these questions of
fact should be subject to a review for clear error by this Court.
I agree that, generally, factual questions and factual
components of mixed questions are subject to a clear error
standard of review. I also agree with the government’s specific
determination of which issues are factual and the cases which
support this determination. See United States v. Givan, 320 F.3d
452, 459 (3d Cir. 2003); United States v. Perez, 280 F.3d 318,
336 (3d Cir. 2002); United States v. Coggins, 986 F.2d 651,
32
653-654 (3d Cir. 1993).
There is an important factual difference between the
cases cited by the government in support of its preferred clearly
erroneous standard of review and the case at bar. In each of the
cited cases, the district court judge was present during the
proceeding that produced factual evidence. The judge smelled
the smoke of battle and was therefore in a much better position
to make factual determinations than an appellate judge who
merely reviews a paper record.
Face to face with living witnesses the original trier of
facts holds a position of advantage from which appellate
judges are excluded. In doubtful cases the exercise of
his power of observation often proves the most accurate
method of ascertaining the truth . . . . How can we say
the judge is wrong? We never saw the witnesses . . . . To
the sophistication and sagacity of the trial judge the law
confines the duty of appraisal.
Wainwright v. Witt, 469 U.S. 412, 434 (1985) (quoting Marshall
v. Lonberger, 459 U.S. 422, 432 (1983) and Boyd v. Boyd, 169
N.E. 632, 634 (N.Y. 1930)).
In the case before us, the district judge was not there. He
relied entirely on transcript evidence from the suppression
hearing in the Pennsylvania Court of Common Pleas. This
departure from orthodox district court suppression procedures
is relevant because the very reason we defer to factual findings
made at the trial-court level is not present in this case. This
Court is in exactly the same position as the District Court.
33
Collectively, three judges of this Court can read the written
transcript of the state suppression hearing, the briefs of the
parties and question the lawyers during oral argument. Judge
Guido of the Cumberland County Court of Common Pleas was
in a better position to make factual determinations, but we are
not reviewing the state court’s grant of Wilson’s motion to
suppress. We must review the order of the District Court.
I would exercise plenary review of factual as well as
legal determinations made by the District Court because the
unique circumstances here make the reasons for the normal
clearly erroneous standard inoperative.
V.
This Court has not heretofore dealt directly with the
issue presented here: When questioning occurs after the purpose
of a traffic stop has been completed and the officer states that a
person is free to leave, under what circumstances does a second
seizure arise requiring probable cause distinct from that which
justified the initial stop?
Here, the panel is plowing new furrows in this Court.
And I am quick to admit that this is a close issue over which
reasonable minds may differ.
I conclude that the District Court erred in determining
that Pennsylvania State Trooper Overcash obtained effective
consent from Wilson for the search of his bag. I believe it erred
in denying Wilson’s motion to suppress the evidence obtained
from that search. Supporting these conclusions is my
disagreement with the District Court’s decision that Wilson was
not seized for purposes of the Fourth Amendment when the
34
consent was given.
A.
I start with the testimony of Trooper Overcash:
Q. Go ahead. What did you do with that citation?
A. Well, upon completing that citation, I examined this rental
agreement and observed that it was actually to be returned by
August 17th, 2001. I did conduct an NCIC CLEAN check to see
if the vehicle was stolen. That was negative. Upon completing
that citation and examining the rental unit, I did return to Mr.
Wilson’s vehicle.
Q. Did you issue him a citation?
A. Yes, I did.
*****
Q. What happened next, Trooper?
A. I issued the traffic citation to Mr. Wilson outside the vehicle.
Upon issuing the citation, I advised him he was free to leave.
He took a few steps towards his vehicle, and then I asked him a
question about the rental agreement being expired, and he
responded. He related that he usually rented them for a month,
35
that he did a lot of traveling. I asked him what kind of work he
did. He related [sic] he sold master compact disks to music
stores for approximately $500.00.
(Transcript of hearing at 8-10 (emphasis added).)
Thereafter, Trooper Overcash was asked “What
happened next?” by the prosecuting attorney 14 times in four
pages of testimony. (Id. at 10-14.) Fourteen answers by the
Trooper related to his seeking information from Wilson after he
had “advised [Wilson] that he was free to leave” at the
conclusion of the traffic stop.
I view as instructive the Common Pleas Court judge’s
finding that Trooper Overcash simply began asking about the
rental agreement. It was the state court judge and not the district
judge who was able to observe Trooper Overcash’s testimony
first hand. (See Op. of the Ct. of Common Pleas at 84.) Because
of the unique posture of this case which leads me to apply a
completely de novo standard of review, I would credit the state
court finding over the opposite finding made by the district court
judge.
B.
United States v. Mendenhall, 446 U.S. 544 (1980),
instructs that “a person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Id. at 554. Mendenhall
36
set forth “[e]xamples of circumstances that might indicate a
seizure” including “threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be
compelled.” Id.
In determining that Wilson was not seized for purposes
of the Fourth Amendment, the government and the majority rely
on United States v. Drayton, 536 U.S. 194 (2002). In that case,
three plainclothes police officers with visible badges and
concealed weapons boarded a bus as part of a routine drug and
weapons interdiction. Id. at 197. One officer stood at the rear of
the bus, a second stood at the front while a third officer went
from passenger to passenger explaining his purpose and seeking
permission to search their luggage. Id. at 197-198. The officers
all made an effort not to block the entrance or exit of the bus. Id.
The Court focused on coercion by force. It determined that
because “[t]here was no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of
weapons, no blocking of exits, no threat, no command, not even
an authoritative tone of voice,” there was also no seizure for
purposes of the Fourth Amendment. Id. at 204. Drayton focused
on these factors not as a test for determining whether a seizure
had taken place, but rather as factually relevant inquiries in
determining whether “a reasonable person would feel free to
decline the officers’ requests or otherwise terminate the
encounter.” Id. at 202.
The facts in this case are quite different from those in
Drayton. Wilson was not one of many passengers on a bus who
were all being politely asked for permission to search their bags.
37
Instead, he had been pulled over, had his license, registration
and rental agreement taken from him and was then ordered out
of his car to receive a citation for speeding. None of this
interaction was voluntary in nature.
All of the interaction was made in the context of a
legitimate seizure for the purpose of issuing a speeding citation;
a legitimate seizure that ended when Trooper Overcash told
Wilson he was free to leave. Unlike the situation in Drayton,
where the bus passengers had not been seized prior to the onset
of questioning, Wilson had been seized for the speeding
violation.
To hold that the teachings of Drayton applies is to mix
apples and oranges.
In the case at bar, after being told he was free to leave,
Wilson was immediately asked another question that had
nothing to do with a speeding violation, the only purpose of the
original seizure. He was asked a question about his rental lease,
at a time when the Trooper had already learned that the car was
not stolen. He was then asked where he was going, and after he
responded, the Trooper walked to the other side of the car and
asked the two passengers where they were going. Then, the
Trooper went to his car and radioed for backup.
In this factual context, the critical question is whether a
reasonable person at this time would feel free to: (1) decline to
answer the officer’s questions; (2) re-enter his car; (3) say
“sayonara” to the cop and drive away.
The District Court determined that, as in Drayton, there
was no coercive force present in Trooper Overcash’s encounter
38
with Wilson, and by virtue of this conclusion, determined that
a reasonable person in this circumstance would have felt free to
decline to answer the officer’s questions and drive away. In
reaching this conclusion, the District Court focused exclusively
on what took place after Trooper Overcash told Wilson he was
free to leave.
For Fourth Amendment seizure purposes, I agree with
the District Court: Trooper Overcash’s statement that Wilson
was free to leave effectively ended the seizure that was incident
to the traffic stop. Moreover, this fact constitutes the basic
jurisprudential distinction between the facts in this case and
those in Drayton.
Yet, we are not precluded from considering the
potentially coercive effect which the force used during that
traffic stop, before Wilson was told he was free to leave, may
have had on the subsequent interaction between Trooper
Overcash and Wilson. In addition, the Trooper’s statement that
Wilson was free to go was framed by an authoritarian context.
The government cites a series of cases from our sister
United States Courts of Appeals which are more similar
factually than is Drayton to the case at bar.18 Each makes clear
18
See United States v. Taverna, 348 F.3d 873, 877-879 (10th
Cir. 2003) (determining that a defendant was not seized for
purposes of the Fourth Amendment where the defendant, after
receiving a traffic citation, was walking back to his vehicle
when the police officer hollered after him and asked if he could
visit about things, proceeded to ask about drugs and guns and
finally obtained permission to search the vehicle after explaining
39
that a seizure pursuant to a traffic stop ends when the person
stopped is told they are free to go, or have their documents
returned to them. Although each of the cited cases held that
subsequent interaction between the defendant subjected to the
traffic stop and the police officer was consensual, every one of
these cases contemplates the possibility that a show of authority
could result in a second seizure. In each of these cases, the
follow-up question which re-initiates the conversation after the
traffic stop seizure is general and non-threatening to a law
abiding person. In contrast, Wilson was asked a very specific
question about the expiration of his rental agreement which
that the defendant could refuse); United States v. West, 219 F.3d
1171, 1176 (10th Cir. 2000) (determining that a defendant was
not seized when the police officer asked about travel plans after
having concluded the initial traffic stop by handing the
defendant’s documents back to him); United States v. Bustillos-
Munoz, 235 F.3d 505, 514-515 (10th Cir. 2000) (determining
that there was no coercive show of authority, and therefore no
seizure, when, as the defendant was walking back to his car, the
officer asked if he had any guns or drugs in his car and the
defendant responded no; the officer then asked for and obtained
permission to search the vehicle and found drugs); United States
v. Sullivan, 138 F.3d 126, 133-134 (4th Cir. 1998) (determining
that defendant was not seized for purposes of the Fourth
Amendment where, after having his license and registration
returned to him, the defendant was asked whether he had
anything illegal in his car and when the defendant did not
answer, the officer repeated the question several times yielding
an admission by the defendant that he had a gun in the car).
40
could be easily perceived as accusatory and threatening even by
an innocent law abiding person.
I find the government’s reliance on Ohio v. Robinette,
519 U.S. 33 (1996), largely unhelpful. Although it is true that
Robinette is factually similar to the case before us, I do not read
it as supporting the government’s position. Rather, I read it as
rejecting any per se rule that would require police officers to
inform persons that they are free to leave after a valid detention
before attempting to engage in a consensual interrogation. Id. at
36, 39-40. Robinette reaffirmed a factually-based
reasonableness test and remanded to the Ohio Supreme Court to
decide the case using a reasonableness test instead of a per se
rule. Id. at 40. In interpreting the guidance of the United States
Supreme Court on remand, the Ohio State Supreme Court
determined that, based on the totality of the circumstances, the
transition between the exercise of authority involved in the
seizure pursuant to a traffic stop and the seeking of permission
to search the vehicle had been so seamless that the officer’s
questioning was impliedly coercive. See State v. Robinette, 685
N.E.2d 762, 770-772 (Ohio 1997).
In Commonwealth v. Freeman, 757 A.2d 903, 905 (Pa.
2000), the case relied upon by the Common Pleas Court in this
case, Freeman was pulled over and issued a warning for
improper lane changes and windshield obstructions. After the
officer had issued the warning and returned Freeman’s
documents, he told her she was free to go and went back to his
car. Id. The officer then got out of his car and returned to
Freeman’s car, began questioning her and her passengers,
ordered her out of the car and eventually obtained permission to
search the car and found drugs. Id. The court employed the test
41
which has been articulated by the United States Supreme Court
and found that based on the totality of the circumstances, a
reasonable person would conclude that the officer’s previous
statement indicating she was free to leave was no longer
operative and therefore a second seizure had taken place. Id. at
907-908.
In Givan, a factually similar case, we expressed doubt
about whether the second encounter was a seizure for purposes
of the Fourth Amendment but decided the case on a different
basis: Even assuming that the defendant was seized, there was
“reasonable and articulable suspicion of illegal activity
sufficient to extend the stop.” 320 F.3d at 458. Our doubt in
Givan sheds little light on the present case in view of some
relevant factual differences. In Givan, the officer asked the
driver of the car if he would mind answering a few questions
before he began his questioning and the officer also explained
that consent to the search had to be voluntary and was not
required. Id. at 459.
Our survey of the case law uncovers no case from our
own Court or the Supreme Court that is specifically controlling.
Although this is a very close case, I conclude that,
looking at the totality of the circumstances, a reasonable person
in Wilson’s position would not feel free to refuse to answer
Trooper Overcash’s questions or get in the car and drive away.
To be sure, Trooper Overcash’s instruction that Wilson was free
to leave must be considered as a fact tending to support the
government’s contention that this was a mere encounter, rather
than a seizure. I conclude, however, that the overall context in
which the interaction between the Trooper and Wilson occurred
42
outweighs this fact. As was the case in Freeman, Wilson had just
been subject to a series of authoritative, albeit legitimate,
commands by Trooper Overcash: being pulled over; required to
produce documents; required to exit his vehicle and proceed to
the rear of the vehicle. Then, almost immediately after being
told he could leave, he was asked a very specific question which
a reasonable person could take as an accusation of some kind of
wrongdoing (namely possessing a vehicle illegally) followed by
a demand to know his interim, mediate or ultimate destination.
This questioning was serious enough to warrant a call for
backup. Although reasonableness is the test, it is beyond cavil
that at this moment Trooper Overcash considered that he had
made a second seizure of Wilson.
I, therefore, conclude that the District Court erred in
determining that Wilson was not seized for purposes of the
Fourth Amendment.
VI.
The Majority has based its holding on their conclusion
that Wilson was not seized for purposes of the Fourth
Amendment when he consented to the search of his bag. I have
expressed my disagreement with this conclusion. I will not
comment on the government’s alternative theories which, in my
view, are also flawed.
*****
The teachings of Massachusetts v. Smith cast serious
doubt on, if not completely vitiate, the continuing vitality of the
Petite Policy. Additionally, as a matter of public policy, Petite
fails to give proper respect to the ability of state law and state
43
judges to vindicate federal interests. I am asking the Clerk to
forward a copy of this dissenting opinion to the respective chairs
of the Judiciary Committees of the United States House of
Representatives and the United States Senate with a
recommendation that they determine whether legislative action
is needed.
On the merits of the case at bar, I would reverse the
judgment of the District Court.
Accordingly, with respect, I dissent.
44
| {
"pile_set_name": "FreeLaw"
} |
817 S.W.2d 425 (1991)
307 Ark. 87
Jerry C. CHAPMAN, Appellant,
v.
Hubert ALEXANDER, Appellee.
No. 91-33.
Supreme Court of Arkansas.
October 28, 1991.
Victor A. Fleming, Little Rock, for appellant.
M. Stephen Bingham, Little Rock, for appellee.
DUDLEY, Justice.
In June of 1986, Hubert Alexander, an attorney, represented Jerry Chapman in the sale of a business. In July of 1990, more than three (3) years after the sale had been completed, Chapman sued Alexander for an alleged act of legal malpractice which occurred at the time of the sale. Chapman did not allege Alexander concealed the negligent act. Alexander pleaded the statute of limitations as a bar to the action. The trial court granted summary judgment in favor of Alexander. We affirm the summary judgment.
Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). Appellant Chapman acknowledges our long line of cases so holding and that they constitute the "general rule." Even so, he asks us to abandon the general rule and retroactively adopt one of the "current trend" cases. Those cases primarily adopt one of three (3) approaches. First, is the "discovery rule." Under this approach, the statute of limitations does not begin to run until the negligent act is discovered or should have been discovered. Second, is the "date of injury" rule. Under this view, the statute of limitations begins to run, not from the occurrence of the negligent act, but rather from *426 the time injury results from the negligent act. Third, is the "termination of employment" rule. Under it, the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended. See Annotation, When Statute Of Limitations Begins To Run Upon Action Against Attorney For Malpractice, 32 A.L.R.4th 260 (1984). Some of the aforementioned "rules" are based upon statutes rather than case law. See id. at 266-67.
In ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. This is also the case under our traditional rule. The "other rules" postpone the running of the statute of limitations in professional malpractice, that is, give the client a longer period of time in which to sue, because of the special nature of the relationship between the professional and his client. While each of the other approaches has some appeal, we found the most meritorious of the other rules to be the "discovery rule" adopted by the Supreme Court of California in Neel v. Magana, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (1971). Still we do not abandon our traditional rule and adopt the "discovery rule."
Our traditional rule has a countervailing fairness about it. First, everyone is treated in the same manner. Second, an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago. The problem with the delay is that his or her records or witnesses may no longer be available. For example, in the oral argument of this case, it was developed that under the "discovery rule" an attorney could be forced to defend the validity of a mortgage 25 to 30 years after the preparation of the instrument, long after his records and witnesses are no longer available.
If this case were limited to deciding which rule was the most fair it would be a much closer case, but there is a good deal more to the issue. In a case identical to the one now at bar, we wrote:
Counsel for the appellants concede that it has long been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. White v. Reagan, 32 Ark. 281 (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W.2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. If such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature, not retrospectively by the courts. [Emphasis added.]
Riggs v. Thomas, 283 Ark. 148, 149, 671 S.W.2d 756, 757 (1984).
In another identical case, with the exception that it involved an accountant, we wrote:
Our decisions have settled this limitation question in professional malpractice actions, and our rule is considerably more restrictive than any of the cases cited and relied on by appellant. In Arkansas malpractice cases, concerning attorneys and physicians, we have consistently held that the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 *427 (1984). In fact, Arkansas courts have followed this rule, as it pertains to professional malpractice actions, for well over one hundred years. See White v. Reagan, 32 Ark. 281 (1877) (quoting from Howell v. Young, 5 Barn. & Cress. 259). That being so, we see no compelling reason why we should adopt a different rule to be used in accounting malpractice cases. Accordingly, since appellee's erroneous advice or negligent conduct occurred in August 1974, appellants' suit filed on September 8, 1981, was clearly beyond the three-year limitation statute. We observed in Riggs v. Thomas, supra, that if such a marked change is to be made in statutes that have long been the law, it should be done by the legislature, not the courts. [Emphasis added.]
Ford's Inc. v. Russell Brown & Co., 299 Ark. 426, 429, 773 S.W.2d 90, 92-93 (1989).
We have made it clear that we are not going to retroactively change our rule and that, if it is to be changed, the change must come from the General Assembly. It would be incongruous for us, rather than the legislature, to now change it. More importantly, the issue is one of statutory construction and, since 1877, we have construed our statute under the "traditional rule." Legislative silence after such a long period gives rise to an arguable inference of acquiescence or passive approval of our construction of the statute. Actually, we find even stronger legislative approval. In 1979 the General Assembly amended the medical malpractice statute to provide: "The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time." The statute further provides that the above sentence shall control unless the doctor conceals a foreign substance in the patient's body, and then the statute of limitations begins to run when the foreign substance is discovered or should have been discovered. Ark.Code Ann. § 16-114-203(b) (1987). This legislative expression in the medical malpractice statute is consistent with the way we have long construed the malpractice statute of limitations. We can only conclude we are interpreting the statute as the legislature intends.
There is yet another significant reason we do not retroactively adopt the "discovery rule," "date of injury rule," or "termination of employment rule." Many abstractors, accountants, architects, attorneys, and other similar professionals surely have relied on our traditional and longstanding rule. In doing so, they had no reason to keep records for longer than three (3) years. As a consequence, if we retroactively changed the rule, they might easily have no materials to use in their defense. Similarly, most professional people insure themselves against malpractice suits. The terms of malpractice insurance policies may have changed over the last 25 years, so that a professional person who was insured years ago might not be covered today under a retroactive application of the statute of limitations. The General Assembly is best suited to hold hearings on such issues and determine whether a change, if any, should be made and whether it should be made retroactively, prospectively from the date of the change, or prospectively from some future date which would give all professional people time to acquire adequate insurance under a different statute of limitations.
Accordingly, we decline to retroactively overrule our cases construing the statute of limitations in malpractice actions. Affirmed.
BROWN, J., not participating.
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.