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27 Cal.App.4th 1390 (1994)
33 Cal. Rptr.2d 194
SEA WORLD, INC., Plaintiff and Appellant,
v.
COUNTY OF SAN DIEGO, Defendant and Respondent.
Docket No. D017936.
Court of Appeals of California, Fourth District, Division One.
August 30, 1994.
*1392 COUNSEL
Gray, Cary, Ware & Friedenrich, Gray, Cary, Ames & Frye, W. Alan Lautanen and Charles L. Deem for Plaintiff and Appellant.
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Andrew J. Freeman, Deputy County Counsel, for Defendant and Respondent.
OPINION
HUFFMAN, J.
In this action by Sea World, Inc. (Sea World) for refund of property taxes paid in 1989, we revisit the fascinating world of real property reassessments after the passage of Proposition 13[1] to determine whether the trial court properly granted the County of San Diego's (County's) motion for summary judgment. The court held that Sea World had failed to exhaust its administrative remedy of seeking equalization of its 1989 supplemental tax assessment, thereby precluding Sea World from claiming a refund for that year. In so deciding, the court found the addition of section 51.5 to the *1393 Revenue and Taxation Code[2] in 1988 (added by Stats. 1987, ch. 537, § 2) did not provide Sea World an avenue around the section 80 proscription against retroactive application of a base year value reduction. (See Osco Drug, Inc. v. County of Orange (1990) 221 Cal. App.3d 189 [272 Cal. Rptr. 14] [hereafter Osco].)
Sea World appeals, contending section 51.5, the California Constitution, and principles of equity require an appropriate refund in this case. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case was submitted to the court for decision based on the following stipulated facts: On November 30, 1989, Harcourt Brace Jovanovich, Inc., sold all of the stock of Sea World to Busch Entertainment Corporation. This sale resulted in a "change of ownership" (§§ 60, 64, subd. (c)), requiring the reassessment of Sea World's land and improvements to its real estate to their fair market value as of the date of change. Consequently, the county assessor reassessed Sea World's land and improvements at the value of $170 million as of November 30, 1989, allocating $41 million to Sea World's possessory interest and $129 million to its real estate improvements.
On June 22, 1990, the assessor mailed to Sea World a notification of supplemental assessment for 1989 which reflected this new base year value. Sea World received this notice, as well as a supplemental tax bill mailed September 14, 1990, and thereafter filed an application (No. 90-1240) for equalization of the 1989 supplemental assessment with the County Assessment Appeals Board (the Board) on September 24, 1990, challenging the assessor's valuation only as to the real estate improvements.
Meanwhile, on June 29, 1990, during the usual course of taxing matters, the assessor sent Sea World notification of taxable value for 1990, which showed the assessed value as $170 million, with $129 million allocated to real property improvements and $41 million to the possessory interest in the land. On September 14, 1990, Sea World filed with the Board an application (No. 90-584) for equalization of the 1990 assessment, challenging only the value of the improvements.
*1394 In each of its applications for equalization, Sea World stated it also constituted a claim for a refund of taxes paid as permitted by section 5097, subdivision (b).[3]
On March 13, 1991, the Board held Sea World's application No. 90-1240 was untimely filed and denied its claim for a refund of the 1989 supplemental tax. A hearing on Sea World's application No. 90-584 was scheduled for July 1991.
At that time, the Board heard evidence and argument concerning the 1990 assessment value of Sea World's real property improvements. The assessor's representative recommended a $109 million value for such improvements for the March 1, 1990 lien date, based upon the assessor's opinion of the fair market value of the improvements in light of information provided by Sea World regarding the November 30, 1989 acquisition and stock sale. Sea World asserted a fair market value for its land improvements at $67 million. The Board took the matter under submission.
While the Board's decision was pending, Sea World filed the present action September 12, 1991, claiming a refund of a portion of the supplemental taxes it had paid pursuant to the 1989 supplemental tax assessment.[4] This action was stayed until after the Board reached its decision as to the assessed value of Sea World's improvements as of the March 1, 1990, lien date.
On February 13, 1992, the Board issued its decision on Sea World's 1990 application No. 90-584, determining the assessed value of the real property improvements as of the March 1, 1990, lien date was $89.5 million, based upon information provided by Sea World and the assessor concerning the November 30, 1989, acquisition and the fair market value of Sea World's improvements on that date. The Board specifically found the assessor's use of the income approach for valuation of the improvements was proper, but that the assessor had incorrectly reduced this amount by the allocated good will of 25 percent rather than 30 percent for the San Diego theme park. Neither Sea World nor the assessor appealed this determination or the findings.
*1395 On May 5, 1992, the County made the appropriate refund to Sea World of a portion of the 1990 property taxes.[5] The County, however, refused to refund any portion of the property taxes paid by Sea World with respect to the 1989 supplemental assessment.
After the Board issued its decision, the trial court lifted the stay in this case. Because the tax refund action raised no triable issues of material fact and merely presented questions of law, the parties agreed to have the trial court decide the legal issues on stipulated facts in a motion for summary judgment, which would be dispositive of the entire case. In accordance with that stipulation and order of the trial court, Sea World filed its motion for summary judgment on July 31, 1992.
Based upon the undisputed facts, the parties presented the trial court with the questions of whether Sea World had filed a timely assessment appeal, or application for equalization, of the supplemental assessment for 1989 and whether the 1990 Board determination of base year value constituted a "correction" entitling Sea World to a refund under section 51.5, subdivisions (b) and (d).[6] The court ruled Sea World's application for equalization and claim for refund of 1989 supplemental taxes was untimely and Sea World's *1396 interpretation of section 51.5, subdivision (b) was inconsistent with section 80, subdivision (a)(3) and (a)(5),[7] which precluded Sea World from seeking *1397 a refund of the 1989 taxes. The court therefore denied Sea World's motion and ordered judgment entered in favor of County. Such judgment was entered November 10, 1992.[8]
On its timely filed appeal, Sea World renews its arguments on section 51.5 and the exhaustion of administrative remedies. Sea World asks that we reverse the trial court's determination. As the matter below was submitted on stipulated facts, the trial court was presented with purely legal questions and its statement of decision is not binding on us. (Bret Harte Inn, Inc. v. City and County of San Francisco (1976) 16 Cal.3d 14, 23 [127 Cal. Rptr. 154, 544 P.2d 1354].) We are thus free to draw our own conclusions of law from the undisputed facts. (Jongepier v. Lopez (1983) 142 Cal. App.3d 535, 538 [191 Cal. Rptr. 131].)[9]
DISCUSSION
A. The Statutory Scheme
Preliminarily, we set out the basic statutory scheme concerning the assessment of property values in California. Before the enactment of article XIII A, a county assessor was required to annually discover and assess at its "full value" all taxable property within his county on the lien date (usually March 1), to enter that value on the assessment roll, and to deliver the roll to the county auditor on or before July 1. (§§ 110, 110.5, 401.3, 405, 601-617, 2192.) If after certifying the assessment roll the assessor discovered that a property had been assessed over or under its current fair market value, he could make appropriate adjustments, either by way of refund if the property were overassessed, or in the form of additional tax billings, called escape assessments, if the property were underassessed. (§§ 469, 531, 533; Bauer-Schweitzer Malting Co. v. City and County of San Francisco (1973) 8 Cal.3d 942 [106 Cal. Rptr. 643, 506 P.2d 1019].) These refunds or escape assessments could be issued for as many years, usually four, as permitted by the specific statutes. (§§ 532, 4831.)
*1398 Article XIII A changed the standard for determining the "full value" of real property, limiting it to the lower of fair market value or the property's "base year value," which was defined by the assessor's valuation of the property on the 1975-1976 tax bill or the fair market value as determined under previous law on the date of new purchase, new construction or change of ownership. (Art. XIII A, § 2, subd. (a); §§ 110, 110.1; see ante, fn. 1 at p. 1392.)[10] Subsequent increases in the base year value once established were limited to a maximum of 2 percent per year. (Art. XIII A, § 2, subd. (b); §§ 51, 110.1, subd. (f).) Appropriate adjustments to the current roll values continued by way of escape assessments and refunds.
Commencing with the 1983-1984 assessment year, whenever a change in ownership occurs, the assessor appraises the property changing ownership at its full cash value on the date of the ownership change. (§ 75.10, subd. (a).) This value then becomes "the new base value of the property...." (§ 75.10, subd. (a).) "If the change in ownership occurs ... on or after June 1 but before the succeeding March 1, then the supplemental assessment placed on the supplemental roll shall be the difference between the new base year value and the taxable value on the current roll." (§ 75.11, subd. (b).)
The assessor then must send a notice to the taxpayer showing the new base year value, the current roll taxable value, the date of change, the amount of supplemental assessments, any exempt amount, the date the notice was mailed, a statement the supplemental assessment was determined in accordance with article XIII A and advisement of the time for filing claims for exemption and for appeal through use of the equalization process.[11] (§ 75.31, subds. (a), (b), & (c).)
Property owners have four years within which to appeal a new base year value determination by filing an application for reduction with the Board. (§§ 75.31, subd. (c), 80, subd. (a)(3), 1603, 1605.) A property owner who has received a supplemental assessment or other assessment outside the regular assessment period must file his application for reduction or appeal "no later than 60 days after the date on which the assessee was notified[, *1399 unless t]he board of supervisors of any county may by resolution require that the application for reduction pursuant to subdivision (a) of Section 1603 be filed with the clerk no later than 60 days after the date of the mailing of the tax bill." (§ 1605, subds. (b) and (c), amended by Stats. 1990, ch. 126, § 14, eff. June 11, 1990.)[12] If the application results in a reduction in the base year value, that value becomes the new base year value and the taxpayer may seek a refund of taxes paid. (§§ 5097, 5097.2.)
Aside from the statutory avenues of appeal provided the taxpayer to challenge the assessor's valuation of a base year value, i.e., via the equalization process, the Legislature provided the assessor with authorization to correct certain base year values. Section 110.1, subdivision (c) gave the assessor until June 30, 1980, to correct any of the 1975 base year values (by reassessing the property) and to levy any appropriate escape assessments. Until 1988, however, the Legislature had provided no guidelines to assessors for correcting post-1975 base year values found incorrect due to a change of ownership or new construction. (SBE, Analysis of Sen. Bill No. 587 (Aug. 31, 1987).) On January 1 that year, section 51.5 became effective and permitted assessors to correct on discovery any base year values or error which did not involve the exercise of the assessor's judgment. (§ 51.5, subd. (a).) While in such cases no limitations period was set in which the assessor could revise the base year values, section 51.5 provided any correction due to an assessor's value judgment must be made "within four years after July 1 of the assessment year for which the base year value was first established."[13] (§ 51.5, subd. (b).) Errors or omissions resulting from taxpayer fraud, concealment, misrepresentation or failure to furnish information, or errors by the assessor which "resulted in a base year value that was not intended by the assessor at the time it was determined ..." were expressly excluded from the four-year limitations period. (§ 51.5, subd. (f)(2).)
*1400 At the same time section 51.5 was added to the Revenue and Taxation Code, section 80 was amended to include a subdivision referring to base year value corrections made by the assessor under section 51.5 to guarantee "that a taxpayer whose base-year value has been corrected will have four years in which to challenge the revised base-year value through the local equalization process." (SBE, Analysis of Sen. Bill No. 587, supra, see Stats. 1987, ch. 537, §§ 2, 3.) Thus, whenever a base year value is corrected by the assessor, the taxpayer will have, as in the case of a base year value change in an assessment or supplemental assessment, four years following that correction in which to challenge it consistent with section 80. (§ 80, subd. (a)(5).) Similarly, if the correction results in a reduction in the base year value, the taxpayer may seek a refund of taxes paid. (§§ 5097, 5097.2.)
(1) A reduction in base year value, whether it be the result of an assessment appeal or equalization process, or from an assessor's correction, is distinct from the right to a refund of taxes due to that reduction. (Osco, supra, 221 Cal. App.3d at p. 193.) Regardless of how the reduction is made, the resulting adjusted or new base year value is the control figure from which an assessment is determined. (Ibid.) The new base year value allows the assessor to determine whether there has been an overassessment or underassessment. Such then may trigger the right of the assessor to levy appropriate escape assessments for taxes owed the County because of an underassessment, or the right of the taxpayer to file an application for an appropriate refund because of an overassessment. (§§ 531.2, 532, 5097, 5097.2; Osco, supra, 221 Cal. App.3d at p. 193.) It does not follow, however, that a reduced base year value in one year mandates a similar lowering or correction of earlier years' base values. (Ibid.)
The right to a refund of taxes is contained in section 5096 et seq. and provides fairly specific grounds for tax refunds, which must be met before any refund will be granted.[14] (See Osco, supra, 221 Cal. App.3d at p. 195; Chrysler Credit Corp. v. Ostly (1974) 42 Cal. App.3d 663, 680 [117 Cal. Rptr. 167].) Section 5096 provides in pertinent part that "[a]ny taxes paid before or after delinquency shall be refunded if they were: ... ¶ (b) Erroneously ... collected."[15] Sections 5097 and 5097.2 provide taxpayers a right to a refund when an application for reduction in assessment has been filed. *1401 Section 5097 states in relevant part: "No order for a refund under this article shall be made, except on a claim: ... ¶ (2) Filed within four years after making of the payment sought to be refunded ... ¶ (b) An application for a reduction in an assessment filed pursuant to Section 1603 shall also constitute a sufficient claim for refund under this section if the applicant states in the application that the application is intended to constitute a claim for refund. If the applicant does not so state, he or she may thereafter and within the period provided in paragraph (2) of subdivision (a) file a separate claim for refund of taxes extended on the assessment which applicant applied to have reduced pursuant to Section 1603 or Section 1604." (Italics added.) Nothwithstanding sections 5096 and 5097, section 5097.2[16] permits a refund within four years of payment "if the amount paid exceeds the amount due on the property as the result of a reduction attributable to a hearing before an assessment appeals board." (Osco, supra, 221 Cal. App.3d at p. 196, italics added.)
B. Application of Statutory Scheme to This Case
Here, Sea World's real estate improvements were assessed as of the date of change in ownership in 1989. This new base value was reflected in the supplemental assessment for 1989 sent to Sea World. Under section 75.31, subdivision (c),[17] Sea World had 60 days from "the date of the notice" to file an appeal or for equalization of this new base year value as provided in section 1605, by filing an application for such under section 1603. Pursuant to section 5097, subdivision (b), this same application would also constitute a "sufficient claim for refund" if it so stated. Sea World's application did so state.
However, the notice of supplemental assessment was dated "06-22-90" (June 22, 1990). To be timely under the existing limitations period, the application for appeal or equalization of this supplemental assessment had to be filed no later than August 22, 1990. It was filed on September 24, 1990. Therefore, under the specific statutes governing appeals of supplemental assessments and claims for refunds brought on the basis of a reduced value *1402 through the assessment equalization or appeal process, the application and claim were untimely. (§§ 5097, subd. (b), 5097.2, subd. (e).)
C. The Section 51.5 Arguments
(2a) Sea World attempts to get around this "failure to exhaust its administrative remedies" by asserting section 51.5 mandates the County assessor to "correct" the 1989 supplemental assessment with the new base value the Board determined was "correct" for Sea World's 1990 assessment and to refund the excess taxes it paid. Sea World's argument goes something like this: because the Board found the assessor had incorrectly determined the value of its improvements on the lien date of March 1, 1990, based on the information of their acquisition on November 30, 1989, and their fair market value, the supplemental assessment value based on the November 30, 1989, change of ownership was likewise incorrect. Because this error was discovered by the assessor within four years after the first establishment of the base year value through the 1990 equalization process, subsection (d) of section 51.5 requires a refund of overpaid taxes based upon this error in the supplemental assessment, which has now impliedly been "otherwise corrected" by the 1990 Board decision. For support of its claim, Sea World cites to the legislative history of section 51.5 and letters from the SBE to county assessors concerning that section as providing the taxpayer with an equitable remedy for errors in base year valuations separate and independent of the remedies provided in section 80. Sea World thus contends section 51.5 requires the assessor to correct the 1989 base value on the supplemental assessment and refund the excess taxes Sea World paid regardless of the untimeliness of its claim and the prospective only effect of section 80. (§ 80, subd. (a)(5); see Osco, supra, 221 Cal. App.3d at p. 196.) We conclude Sea World's interpretation of section 51.5 is incorrect.
(3) Generally, in interpreting statutes assessing and levying taxes, a court "`may not extend [the statutory] provisions, by implication, beyond the clear import of the language used, nor enlarge upon their operation so as to embrace matters not specifically included.'" (Cal. Motor etc. Co. v. State Bd. of Equal. (1947) 31 Cal.2d 217, 223 [187 P.2d 745].) The court is "simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." (Code Civ. Proc., § 1858.) Thus, if a statute is clear, the "plain meaning" rule applies; the Legislature is presumed to have meant what it said. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155 [137 Cal. Rptr. 154, 561 P.2d 244].) A statute's provisions "`are to be construed *1403 according to the fair import of their terms, with a view to effect its objects and to promote justice.'" (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 487 [134 Cal. Rptr. 630, 556 P.2d 1081].) Thus any "specific provision should be construed with reference to the entire statutory scheme of which it is a part, ..." (Id. at p. 489.) As we noted in Pueblos Del Rio South v. City of San Diego (1989) 209 Cal. App.3d 893 [257 Cal. Rptr. 578]: "`When used in a statute[, words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' [Citation.] `Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.' [Citation.]" (Id. at p. 905.)
(2b) Using these rules here, we conclude that although section 51.5 provides a procedure separate from section 80 for the correction of errors in base year values, that section, enacted to provide guidelines for county assessors in making base year value corrections, when viewed with the entire statutory scheme of which it is a part, does not override the prospective only application of section 80, subdivision (a)(5) for a reduced base year value determined as a result of a successful taxpayer's application for the reduction of such value. (See Osco, supra, 221 Cal. App.3d 189.)
As the court in Osco stated: "`[T]he intent of the Legislature is the end and aim of all statutory construction [citations]....' [Citation.] A report issued by the Assembly Revenue and Taxation Committee set forth the following example in its analysis of assessment appeals: `[I]f a taxpayer wishes to appeal as too high a base value established in 1980, the last year in which to make such an appeal would be 1984; if successful, the change would be effective for 1984-85 and thereafter. ...' [Citation.] ¶ The Legislature's intent is clearly expressed in section 80[.] Subdivision (a)(5) provides that any reduction in assessment made as a result of a reduction in base-year value shall apply for the assessment year in which the appeal is taken and prosectively thereafter[.]" (Osco, supra, 221 Cal. App.3d at p. 194, fns. omitted, original italics.) Thus the court in Osco found the effect of section 80 was "to reduce base-year values effective only in the year or years in which the taxpayer applied for a reduction, and prospectively thereafter[.]" (Id. at p. 195, fn. omitted.) Since Sea World timely applied for reduction of the 1990 base year value, its success in obtaining a lower adjusted base year value applies for the 1990 assessment year and following years only. (Ibid.)
Although section 51.5 was enacted after the initiation of the lawsuit in Osco, we do not find that its language, when read in light of the legislative analysis for its enactment and subsequent amendment, and the fact section *1404 80 was amended to include any base year value determined under it (§ 51.5) at the time it was enacted (§ 80, subd. (a)(4)), supports Sea World's assertion the 1990 determination constituted a "correction" of the 1989 supplemental assessment, which would then entitle Sea World to an automatic refund.
In enacting section 51.5, the Legislature stated that it: "[F]inds and declares that fairness and equity require that county assessors have express authority to make corrections to property tax base-year values whenever it is discovered that a base-year value does not reflect applicable constitutional or statutory valuation standards or the base-year value was omitted. Any limitations imposed upon the assessor's authority to correct these errors would result in a system of taxation which, on the one hand, denies the benefits of Article XIII A of the California Constitution to some taxpayers where the barred error or correction would reduce the base-year value and, on the other hand, encourages even the most honest person to engage in deception and concealment in order to delay discovery of changes in ownership or new construction beyond the point where a correction of the base-year value can be made. Further, the failure to place any value on the assessment roll for property which completely escapes taxation because of limitations on the authority to correct errors would violate the constitutional requirement that all property in the state shall be subject to taxation." (Stats. 1987, ch. 537, § 1, subd. (a).)
Subdivision (a) of section 51.5 provides that error or omission in a base year value which does not involve an assessor's judgment shall be corrected "in any assessment year in which the error or omission is discovered." Subdivision (b) of section 51.5, on which Sea World relies, provides that "[a]n error or an omission described in subdivision (a) which involves the exercise of an assessor's judgment as to value may be corrected only if it is placed on the current roll or roll being prepared, or is otherwise corrected, within four years after July 1 of the assessment year for which the base year value was first established."[18] Subdivision (d) of section 51.5 provides that if a correction is made by the assessor under subdivisions (a) or (b) and such correction reduces the base year value, then "appropriate cancellations or refunds of tax shall be granted in accordance with this division."[19] (Italics added.) Section 80, subdivision (a)(4) provides that a base year value *1405 determined under section 51.5 is conclusive of the base year value unless it is timely challenged. If so challenged, the new base value determined as a result of that challenge is conclusively presumed to be the base year value for that assessment. Section 80, subdivision (a)(5) provides that any reduction in assessment made because of an assessment appeal or base year value challenge applies for the year in which the appeal or challenge was made and in the following years, i.e., prospectively thereafter.
From reading the plain language of sections 51.5 and 80, in light of the stated legislative intent, we glean that a downward adjustment in base year value as the result of an application for a reduction challenging an assessment or supplemental assessment based on an assessor's value judgment is not the same thing as a correction based on an error or omission in the assessor's value judgment determined without the filing of an application for reduction.
SBE letters to assessors concerning both sections, that were admitted into evidence in this case, although not binding on us, provide some support for this interpretation.[20] (Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816 [201 Cal. Rptr. 165, 678 P.2d 378].) In the letters SBE takes the position section 51.5 is independent of the assessment appeal provisions, noting the assessor must correct any error or omission in the determination of a base year value when he discovers it and "[t]he assessment appeals provisions apply only when there is a dispute between the taxpayer and the assessor as to the proper level of the base-year value and, as required in ... Section 80, an application for reduction in base-year value is filed." (SBE Letter to County Assessors, supra, No. 89/34.) They also note that "[r]eductions in assessments under Section 80 apply for the assessment year in which the appeal is taken and prospectively thereafter." (SBE Letter to County Assessors, supra, No. 91/53.)
In addition to reflecting that section 80 is a separate procedure for use by taxpayers, while section 51.5 is for use by assessors, the SBE letters also emphasize that the base year value, however derived, is a "control figure," which if changed "does not necessarily result in a change in the taxable or assessed value of the property."[21] (SBE Letter to County Assessors, supra, No. 89/34.) Thus even assuming the assessor had corrected the 1989 base *1406 year value in this case because of a judgment valuation error, such correction would not have necessarily required the assessor to correct the assessment for that year. (See Osco, supra, 221 Cal. App.3d at p. 193.)
Although the letters also arguably provide some support for Sea World's position, it is our duty and not that of the SBE to construe the true meaning of section 51.5 and its interplay with section 80 and to harmonize it with the entire statutory scheme of which it is a part.[22] (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 917, fn. 15 [80 Cal. Rptr. 89, 458 P.2d 33].)
As the legislative analysis to section 51.5 points out, it is only common sense to conclude that a taxpayer will challenge an assessment or supplemental assessment when he thinks the value is too high, not when it is too low or the value is agreed upon. Thus it follows that in the case of a correction by the assessor which results in a lower base year value and subsequently in a lower assessment and assessment bill for taxes, a taxpayer would not apply to challenge that value unless he thought that lower corrected value was still too high. Under section 80, subdivision (a)(4), however, either the corrected value the assessor assigned to the property under section 51.5 or the reduced value of that corrected value through the assessment appeals process would then become the new base value for that assessment.
Because the Legislature did not alter the prospective application of section 80, subdivision (a)(5) when it enacted section 51.5 and amended section 80 to include base year values determined via an assessor's correction under section 51.5 which is then appealed (§ 80, subd. (a)(4)), we can only conclude that that section still means what it says: "Any reduction in assessment made as the result of an appeal under this section shall apply for the assessment year in which the appeal is taken and prospectively thereafter." (See Osco, supra, 221 Cal. App.3d at p. 194.)
However, because the Legislature did not provide for the prospective or retroactive application of a section 51.5 correction which is not challenged *1407 under section 80, and that section provides such unchallenged correction is "conclusively presumed to be the base-year" unless appealed (§ 80, subd. (a)(4)), subdivision (a)(5) by its express language does not apply to such correction. This conclusion is consistent with our analysis that corrections of a base year value by the assessor are not the same thing as a reduction due to an assessment appeal, although they may have the same effect in determining whether there has been an overassessment or underassessment. This distinction, however, does not assist Sea World in this case.
Sea World would have us bootstrap the reduced base year value determined via its 1990 assessment appeal to the 1989 supplemental assessment as a "correction" under section 51.5 even though the express terms of section 80 preclude such action. (§ 80, subds. (a)(3), (a)(5), (c).) The reduction attributable to the 1990 hearing on Sea World's application to reduce that base year value, even though not appealed, simply applies to the 1990 assessment period and beyond, and does not relate back to the 1989 assessment untimely challenged. (Osco, supra, 221 Cal. App.3d at p. 196.) The fact that the Board's decision in lowering the base year value on the 1990 assessment was not appealed by County does not alone change it into an uncontested determination or a concession by the assessor of error or omission in his value judgment exercised in the 1989 supplemental assessment.
Sea World argues it is still entitled to a refund because its claim was filed and denied within four years of the implied correction to the 1989 base year value. Sea World, however, conceded it did not file a timely application for reduction of the 1989 supplemental assessment. Even if we construed the matter as Sea World would have us, i.e., that it independently had four years under section 51.5, subdivision (d) in which to file a claim after the "implied correction" of the 1989 supplemental assessment based on the 1990 appeal determination, that claim would have had to be filed "after making of the payment sought to be refunded ..." in order to be considered (§ 5097, subd. (a)(2)), and would have had to state a proper ground for a refund other than the 1990 base year value reduction. (§§ 5096, 5142, subd. (a).) Since Sea World did not file a separate claim for refund after it paid the supplemental taxes (in November 1990 and April 1991) and the rejected claim which it filed was grounded upon its application for reduction of the 1989 supplemental assessment based on the 1990 reduction, its claim is inherently flawed as untimely.[23]
*1408 D. Equitable Arguments
As it did below, Sea World further argues on appeal that the equitable powers of this court should be exercised to excuse the untimeliness of the claim in this case because the strict time limit of 60 days from the notice under section 1605, subdivision (b) was subsequently amended by resolution passed by the Supervisors to allow applications filed after January 1, 1991, to be timely if filed within 60 days after the mailing of the supplemental tax bill. (See ante, fn. 6.) Citing Focus Cable of Oakland, Inc. v. County of Alameda (1985) 173 Cal. App.3d 519 [219 Cal. Rptr. 95] (Focus) and Bendix Corp. v. City of Los Angeles (1984) 150 Cal. App.3d 921 [198 Cal. Rptr. 370] (Bendix), Sea World also asserts we must exercise our powers to correct the overassessment in the 1989 supplemental assessment because there is no question about the value of the improvements since the 1990 determination conclusively found the error and such should "relate back" to the 1989 base year value.[24] Sea World contends it would not prejudice the assessor in this case to provide a longer appeals period.
Sea World, however, fails to appreciate that the right to a refund is strictly statutory and that the facts in this case are fully distinguishable from those in Focus and Bendix. Unlike in Focus, this case did concern a valuation dispute between the assessor and the taxpayer, sections 51.5 and 80 were at issue and the 1989 supplemental assessment was not a "nullity as a matter of law." (See Focus, supra, 173 Cal. App.3d at pp. 527-528.) Nor has Sea World presented the type of unique facts that were involved in Bendix to envoke application of the "relation-back" doctrine to toll a limitations period. (Bendix, supra, 150 Cal. App.3d at pp. 924-926.)
We decline to exercise our equitable powers where the Legislature has spoken and provided a taxpayer with specific legal remedies for claiming a tax refund for overpayment of taxes conditioned upon the taxpayer fulfilling certain requirements, when the taxpayer fails to meet those conditions. (See *1409 Sierra Investment Corp. v. County of Sacramento (1967) 252 Cal. App.2d 339, 346 [60 Cal. Rptr. 519].)
E. Constitutional Claims
Finally, Sea World contends that by not refunding the erroneous amount of the 1989 supplemental taxes Sea World paid, the County violates the clear constitutional mandate contained in article XIII to uniformly assess, levy and collect taxes on the full value of property in California.[25] Sea World has failed to show any lack of uniformity in the assessment system. Any claimed lack of uniformity in this case is due to Sea World's own failure to comply with the requirements of the system.
Sea World's reliance on Bauer-Schweitzer Malting Co. v. City and County of San Francisco, supra, 8 Cal.3d 942 and Ex-Cell-O Corp. v. County of Alameda (1973) 32 Cal. App.3d 135 [107 Cal. Rptr. 839] is unfounded. Those cases involved criminal action on the part of the assessor and faulty information provided by the taxpayer, respectively. Neither situation exists in this case. No constitutional error has been shown.
DISPOSITION
The judgment is affirmed. County is to recover its costs.
Work, Acting P.J., and Nares, J., concurred.
NOTES
[1] On June 6, 1978, Proposition 13 added article XIII A to the California Constitution, which provides in relevant part in section 1, subdivision (a): "The maximum amount of any ad valorem tax on real property shall not exceed one percent (1%) of the full cash value of such property." Pursuant to section 2, subdivision (a) of article XIII A: "The full cash value means the county assessor's valuation of real property as shown on the 1975-76 tax bill under `full cash value' or, thereafter, the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment." (Italics added.)
[2] Unless otherwise indicated, all references are to the Revenue and Taxation Code and its subdivisions, except in the case of article XIII A which is always a reference to that provision of the California Constitution.
[3] Section 5097, subdivision (b) provides in pertinent part: "An application for a reduction in an assessment filed pursuant to Section 1603 shall also constitute a sufficient claim for refund under this section if the applicant states in the application that the application is intended to constitute a claim for refund." Although a supplemental assessment is considered an assessment made outside the regular assessment period as provided in section 1605 for purposes of equalization (§ 75.31, subd. (c)), application for such equalization is still under subdivision (a) of section 1603 and will thus also constitute a claim for a refund under section 5097, subdivision (b) if it so states. (§§ 1605, subd. (b), 5097, subd. (b).)
[4] Sea World paid the County tax collector the first installment of the 1989 supplemental tax bill on November 26, 1990, and the second installment on April 2, 1991.
[5] The County remitted to Sea World a check for $562,695.49.
[6] Evidence before the trial court included: letters from the State Board of Equalization (SBE) to all county assessors in California concerning section 51.5 and amendments to it and other statutes pertinent to the case; the Senate bill and legislative analysis for section 51.5; the fact section 1605, subdivision (c) had been amended effective June 11, 1990, to allow a county board of supervisors (Supervisors) to adopt a resolution providing an appeal or equalization application from a supplemental assessment be filed no later than 60 days after the date of mailing the supplemental tax bill rather than after notice of the assessment; the fact the Supervisors so adopted this new filing rule effective January 1, 1991; and the facts that, assuming the new base value for 1990 was the corrected value for 1989, the supplemental tax would have been $126,313 for the improvements and the amount of refund would be $237,483 (the amount actually paid for improvements, $363,796, less $126,313).
Section 51.5 was added to the Revenue and Taxation Code in 1988 to read as follows: "(a) Notwithstanding any other provision of the law, any error or omission in the determination of a base-year value pursuant to paragraph (2) of subdivision (a) of Section 110.1, including the failure to establish that base-year value, which does not involve the exercise of an assessor's judgment as to value, shall be corrected in any assessment year in which the error or omission is discovered. [¶] (b) An error or an omission described in subdivision (a) which involves the exercise of an assessor's judgment as to value may be corrected only if it is placed on the current roll or roll being prepared within four years after July 1 of the assessment year for which the base-year value was first established. [¶] (c) An error or an omission involving the exercise of an assessor's judgment as to value shall not include errors or omissions resulting from the taxpayer's fraud, concealment, misrepresentation, or failure to comply with any provision of law for furnishing information required by Sections 441, 470, 480, 480.1, and 480.2, or from clerical errors. [¶] (d) If a correction authorized by subdivision (a) or (b) reduces the base-year value, appropriate cancellations or refunds of tax shall be granted in accordance with this division. If the correction increases the base-year value, appropriate escape assessments shall be imposed in accordance with this division. [¶] (e) The existence of a clerical error shall be proved by a preponderance of the evidence, except that if the correction is made more than four years after July 1 of the assessment year for which the base-year value was first established the clerical error shall be proved by clear and convincing evidence, including the papers in the assessor's office. Nothing in this subdivision shall be construed to change the standard of proof applicable to a determination of the value of property. [¶] (f) For purposes of this section: [¶] (1) `Assessment year' means an assessment year as defined in Section 118. [¶] (2) `Clerical errors' means only those defects of a mechanical, mathematical, or clerical nature, not involving judgment as to value, where it can be shown from papers in the assessor's office or other evidence that the defect resulted in a base-year value that was not intended by the assessor at the time it was determined." (Italics added to indicate the subsections on which Sea World relied for support of its refund claim.)
Subdivision (b) of section 51.5 was amended effective June 11, 1990, to add ", or is otherwise corrected," and to delete the hyphen from "base-year" so that it then read: "An error or an omission described in subdivision (a) which involves the exercise of an assessor's judgment as to value may be corrected only if it is placed on the current roll or roll being prepared, or is otherwise corrected, within four years after July 1 of the assessment year for which the base year value was first established." (Stats. 1990, ch. 126, § 2, italics added to indicate changes.)
The Legislative Counsel's Digest filed for Senate Bill No. 124 reveals this amendment to section 51.5, subdivision (b) was added to "provide that [the] 4-year limitation also applies to errors or omissions regarding the establishment of base year values involving the assessor's judgment which can be corrected without reflecting the change on the current roll or the roll being prepared." (Stats. 1990, ch. 126, No. 7 West's Cal. Legis. Service, p. 884; SBE Letter of Intent to Governor Deukmejian re Sen. Bill No. 124 (June 7, 1990).)
[7] At the time section 51.5 was added to the tax statutes, section 80 was amended to add a new paragraph (4) to subdivision (a) and renumber the old as paragraph (5). As so amended, section 80 read as follows: "(a) An application for reduction in the base-year value of an assessment on the current local roll may be filed during the regular filing period for that year as set forth in Section 1603 or Section 1840, subject to the following limitations: [¶] (1) The base-year value determined by a local board of equalization or by the State Board of Equalization, originally or on remand by a court, or by a court shall be conclusively presumed to be the base-year value for any 1975 assessment which was appealed. [¶] (2) The base-year value determined pursuant to paragraph (1) of subdivision (a) of Section 110.1 shall be conclusively presumed to be the base-year value unless an equalization application is filed no later than the regular filing period following the 1980 lien date. Once an application is filed, the base-year value determined pursuant to that application shall be conclusively presumed to be the base-year value for that assessment. [¶] (3) The base-year value determined pursuant to paragraph (2) of subdivision (a) of Section 110.1 shall be conclusively presumed to be the base-year value, unless an application for equalization is filed during the regular equalization period for the year in which the assessment is placed on the assessment roll or in any of the three succeeding years. Once an application is filed, the base-year value determined pursuant to that application shall be conclusively presumed to be the base-year value for that assessment. [¶] (4) The base-year value determined pursuant to Section 51.5 shall be conclusively presumed to be the base-year value unless an application for equalization is filed during the appropriate equalization period for the year in which the error is corrected or in any of the three succeeding years. Once an application is filed, the base-year value determined pursuant to that application shall be conclusively presumed to be the base-year value for that assessment. [¶] (5) Any reduction in assessment made as the result of an appeal under this section shall apply for the assessment year in which the appeal is taken and prospectively thereafter. [¶] (b) This section does not prohibit the filing of an application for appeal where a new value was placed on the roll pursuant to Section 51. [¶] (c) An application for equalization made pursuant to Section 620 or Section 1605 when determined, shall be conclusively presumed to be the base-year value in the same manner as provided herein." (Italics added to indicate subsections on which the trial court relied to find Sea World precluded from seeking a refund in this case.)
[8] It appears that the judgment was entered twice; once based on the trial court's signed order denying the motion on November 10, 1992, and again on November 12, 1992, after the court signed a separate order for judgment in County's favor.
[9] The standard is the same whether we review the matter as a grant of summary judgment or a trial upon stipulated facts. (Milo Equipment Corp. v. Elsinore Valley Mun. Water Dist. (1988) 205 Cal. App.3d 1282 [253 Cal. Rptr. 126]; Jongepier v. Lopez, supra, 142 Cal. App.3d at p. 538.)
[10] Section 110.1 provides, in part: "(a) For purposes of subdivision (a) of Section 2 of Article XIII A[,] `full cash value' of real property, including possessory interests in real property, means the fair market value as determined pursuant to Section 110 for either of the following: [¶] (1) The 1975 lien date. [¶] (2) For property which is purchased, is newly constructed, or changes ownership after the 1975 lien date, either of the following: [¶] (A) The date on which a purchase or change in ownership occurs. [¶] (B) The date on which new construction is completed, and if uncompleted, on the lien date. [¶] (b) The value determined under subdivision (a) shall be known as the base year value for the property."
[11] If the supplemental assessment is a negative amount, the notice will also advise the property owner that the auditor will make a refund of a portion of the taxes paid. (§ 75.31, subd. (e) [the 1992 amendment redesignated this subdivision as (f)].)
[12] Application for reduction in a current roll assessment must be filed within the time period "beginning July 2 and continuing through and including September 15." (§ 1603, subd. (b).)
[13] The legislative analysis for Senate Bill No. 587 reveals it was drafted in response to Dreyer's Grand Ice Cream, Inc. v. County of Alameda (1986) 178 Cal. App.3d 1174 [224 Cal. Rptr. 285], which determined the assessor could not correct a post-1975 base year value where the correction was made more than four years after March 1 of the year for which the base year value was established. While Dreyer's concerned an error in an assessor's value judgment concerning a base year value, the Legislature wanted to clarify other types of corrections and the differences between escape assessments applying to property which was underassessed and that which had totally escaped assessment. (SBE, Analysis of Sen. Bill No. 587, supra.) "In view of the serious interpretational questions raised by the Dreyer's decision, it is necessary for the Legislature to adopt clear guidelines for the correction of post-1975 base year values and to restore the statutory meaning of the terms used in the escape assessment provisions." (Ibid.; see also Blackwell Homes v. County of Santa Clara (1991) 226 Cal. App.3d 1009, 1014-1016 [277 Cal. Rptr. 251].) The four-year limit on corrections of error involving an assessor's value judgment in section 51.5 is consistent with the Dreyer's decision. (Ibid.)
[14] Before article XIII A, "several statutes provided for tax refunds. The primary effect of article XIII A was to impose a different value standard for assessing property. The article and its enabling statutes did not limit existing law with regard to refunds; however, the refund statutes must be read in conjunction with those statutes allowing reduction in base-year value." (Osco, supra, 221 Cal. App.3d at p. 195, fn. 8.)
[15] If a correction is made to a base year value it may or may not change the assessed value. If it does, the corrected assessment will be put on the tax roll for billing and collection. Pursuant to section 4831: "(a) Any error resulting in incorrect entries on the roll may be corrected ... at any time after the roll is delivered to the auditor but shall be made within four years after the making of the assessment which is being corrected. This section does not apply to ... ¶ (1) Errors involving the exercise of value judgments."
[16] Section 5097.2 provides in part: "Notwithstanding Sections 5096 and 5097, any taxes paid before or after delinquency may be refunded by the county tax collector or the county auditor, within four years after the date of payment, if: ... ¶ (e) The amount paid exceeds the amount due on the property as a result of a reduction attributable to a hearing before an assessment appeals board or an assessment hearing officer."
[17] Section 75.31, subdivisions (c) and (d) were amended effective June 11, 1990, to provide an expanded limitations period for the timely filing of an appeal or application of equalization to correspond with the changes in section 1605, subdivision (c). (See ante, fn. 6.)
[18] As noted earlier, the insertion of the language "or is otherwise corrected" by the 1990 amendment to section 51.5, subdivision (b) was to clarify the four-year statute of limitations for corrections made outside the current roll or roll being prepared. (See ante, fn. 6.) A supplemental assessment, made outside the current roll by the assessor based on a correction, would fall under this subsection of section 51.5.
[19] By its own language, subdivision (d) of section 51.5 only allows appropriate refunds of tax in accordance with the existing tax refund statutes. (See Osco, supra, 221 Cal. App.3d at p. 195, fn. 9.) It does not by itself provide for automatic tax refunds.
[20] SBE Letters to County Assessors Nos. 89/34, Base-Year Value Corrections (Apr. 7, 1989), 90/03, Proposition 58 (Jan. 10, 1990), and 91/53, Refunds Resulting From Base Year Value Corrections (July 16, 1991), were stipulated by the parties below as information the trial court could consider in determining the issues before it.
[21] In Letter No. 89/34, SBE stresses "the correction of a base-year value is not the same thing as a change in taxable or assessed value or a change in the value reflected on the roll." (Ibid.) Section 51.5 "does not by itself authorize roll corrections. Rather, it describes procedures which may in some cases result in roll corrections to be made under existing statutes." (SBE Letter to County Assessors, supra, No. 89/34.)
[22] One SBE letter states section 51.5 requires the assessor refund taxes paid in cases where a correction reduces the base year value when taxes have been paid on the erroneous base year value "whether the error involves the assessor's value judgment or not." (SBE Letter to County Assessors, supra, No. 91/53.) That same letter, however, also notes the "mandate" to refund taxes is based upon the correction being "placed on the assessment roll within four years after July 1 of the assessment year for which the base year was first established." (Ibid.) But, as we have seen in footnote 15, a correction to a tax roll under section 4831 does not apply to errors involving the exercise of value judgment.
[23] To the extent Sea World may argue it could still file an independent claim based on section 5096, subdivision (b) for taxes erroneously collected, we merely comment, as we already have, that before it can be determined that taxes have erroneously been collected, the roll must be corrected to reflect the error under section 4831 and that section does not apply to errors involving the exercise of an assessor's value judgment. That section, added to the Revenue and Taxation Code in 1939, although amended numerous times, and two times since the enactment of section 51.5, has not been changed to include errors involving the exercise of the assessor's value judgment. (Stats. 1939, ch. 154, § 4831, p. 1362, amended by numerous statutes, including Stats. 1988, ch. 830, § 25 and Stats. 1991, ch. 532, § 35; see ante, fns. 15 and 22.)
[24] A 1992 amendment to section 1605, subdivision (b) provides a 12-month limitation for the filing of an application for reduction in a supplemental assessment if the party affected and the assessor stipulate that there is an error in the assessment as a result of the assessor's exercise in judgment in determining the full cash value and a written stipulation as to such is filed pursuant to section 1607. (Stats. 1992, ch. 523, § 9.5.) No such stipulation was entered here.
[25] Article XIII, section 1, subdivision (b) provides that all property will be assessed according to its full value. To the extent Sea World is arguing this article requires automatic refunds when an overassessment is identified, such claim has been addressed and refuted by us in footnote 19 and also by the court in Osco. (Osco, supra, 221 Cal. App.3d at pp. 193-194, fn. 4; see ante, fn. 19.)
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537 U.S. 862
BEDFORDv.PACHECO.
No. 01-10763.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND.
2
Sup. Ct. R. I. Certiorari denied. Reported below: 787 A. 2d 1210.
| {
"pile_set_name": "FreeLaw"
} |
J-S47034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE M. GERMAN SANTOS, :
:
Appellant : No. 473 MDA 2019
Appeal from the PCRA Order Entered March 12, 2019
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000197-2017
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 15, 2019
Jose M. German Santos (“Santos”) appeals from the Order denying his
Petition for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
Counsel for Santos has filed a Petition to Withdraw from representation, and
a No-Merit/Turner Finley Brief.2 We grant counsel’s Petition to Withdraw,
and affirm the Order of the PCRA court.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See
also Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)
(recognizing that filing a no-merit brief may fulfill counsel’s obligation to file a
no-merit letter, provided that the brief contains all the information that must
be included in a no-merit letter).
J-S47034-19
In its Opinion, the PCRA court summarized the relevant history
underlying this appeal as follows:
On October 16, 2017[, Santos] pled guilty to Count 1 – Possession
with Intent to Deliver (PWID) Marijuana; Count 6 – Driving Under
the Influence, Controlled Substance, and Count 7 – Driving Under
the Influence [], Controlled Substance Impaired Ability.[3] On
November 20, 2017, [Santos] was sentenced to undergo a period
of incarceration of seventy-two hours to six months in the Luzerne
County Correctional Facility, Alcohol Highway Safety School, a
twelve[-]month license suspension, and a $1,000.00 fine.
[Santos] was also sentenced to two years [of] probation for Count
1[,] to run consecutive to Count 6.[FN] [Santos] did not file any
post-sentence motions or appeals. On October 12, 2018, [Santos]
filed a PCRA Petition. On January 24, 2019[, Santos,] through
appointed counsel, filed a supplemental PCRA Petition…. [T]he
issue [Santos] pursued at the PCRA hearing[,] held on February
28, 2019[,] was trial counsel’s alleged ineffectiveness for failing
to advise him of the deportation consequences of his guilty plea.
[FN] Counts 6 and 7 merged for sentencing purposes.
PCRA Court Opinion, 3/12/19, at 1-2 (one footnote added, one footnote in
original).
Following a hearing, the PCRA court denied Santos’s Petition.
Thereafter, Santos flied the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Prior to addressing the merits of the issue raised in counsel’s No-Merit
Brief, we must determine whether counsel met the procedural requirements
to withdraw. Counsel seeking to withdraw in PCRA proceedings
____________________________________________
3 See 35 P.S. § 780-113(a)(30); 75 Pa.C.S.A. § 3802(d)(1), (2).
-2-
J-S47034-19
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the PCRA court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner[] (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the court … must then
conduct its own review of the merits of the case. If the court
agrees with counsel that the claims are without merit, the court
will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(corrections and some quotations and citations omitted).
Here, counsel has complied with the procedural requirements for
withdrawing as PCRA counsel. Counsel has provided Santos with a copy of
the Petition and the No-Merit Brief, and advised Santos of his right to proceed
pro se or with private counsel. See Petition to Withdraw at 1. Santos has
neither retained private counsel nor submitted any pro se filings to this Court.
Accordingly, we next address Santos’s substantive claims to determine
whether they lack merit.
In the No-Merit Brief, Santos claims that his guilty plea counsel rendered
ineffective assistance by permitting him to plead guilty, “without informing
him of the potential for deportation.” No-Merit Brief at 5. Santos argues that
-3-
J-S47034-19
his plea counsel was aware that Santos was not a United States citizen, and
that he could be deported for pleading guilty. Id.
As this Court has explained,
[w]hen reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a PCRA
court’s credibility determinations. However, with regard to a
court’s legal conclusions, we apply a de novo standard.
Commonwealth v. Lee, 206 A.3d 1, 6 (Pa. Super. 2019) (citations omitted).
To be eligible for relief based on a claim of ineffective assistance of
counsel, a PCRA petitioner must demonstrate, by a preponderance of the
evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable
basis existed for counsel’s action or omission; and (3) there is a reasonable
probability that the result of the proceeding would have been different absent
such error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008). With
regard to the second, i.e., the “reasonable basis” prong, this Court will
conclude that counsel’s chosen strategy lacked a reasonable basis only if the
appellant proves that “an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Commonwealth v.
Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). To establish
the third prong, i.e., prejudice, the appellant must show that there is a
reasonable probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction. Commonwealth v. Dennis,
950 A.2d 945, 954 (Pa. 2008).
-4-
J-S47034-19
In its Opinion, the PCRA court set forth the relevant law regarding an
ineffectiveness claim relating to advice to a non-citizen about the risks of
deportation, addressed Santos’s claim and concluded that it lacks merit. See
PCRA Court Opinion, 3/12/19, at 3-5. The PCRA court’s findings are supported
in the record, and its legal conclusions are sound. See id. We therefore affirm
on the basis of the PCRA court’s Opinion, with regard to Santos’s claim of
ineffective assistance of plea counsel. See id.
We further agree with counsel’s assessment that the appeal lacks merit
and is frivolous. Consequently, we grant counsel’s Petition to Withdraw from
representation.
Petition to Withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2019
-5-
Circulated 09/10/2019 03:31 PM
IN THE COURT OF COlVlMON PLEAS
OF LUZERNE COUNTY
CO:MMONWEALTH OF PENNSYLVANIA :
v. CRilvfINAL DIVISION
JOSE M. GERMAN SANTOS NO: 197 OF 2017·
INMATE NO:
MEMORANDUM
I. INTRODUCTION
This memorandum is filed to address the issues raised in the Petition for Post
Conviction Collaieral Relief (hereinafter "PCRA") by Defendant, Jose German Santos, on
October 12, 2018: At the PCRA hearing on February 27, 2019, Defendant pursued the allegation
of ineffective assistance of counsel for failing to advise him _of the deportation consequences of
his guilty plea agreement.
II. PROCEDURAL IDSTORY
On October 16, 2017 Defendant pled guilty to Count I -Possession with Intent to
Deliver (PWID) Marijuana; Count 6 - Driving Under the Influence, Controlled Substance; and
Count 7 - Driving Under the Influence (DUI), Controlled Substance Impaired Ability. On
November 20, 2017, Defendant was sentenced to undergo a periodof incarceration of seventy-
two hours to six months in the Luzerne County Correctional Facility, Alcohol Highway Safety
School, a twelve month licensesuspension, _and a $1,000.0d fine. Defendant was also sentenced
to two years probation for Count 1 to run consecutive to Count 6.1 Defendant did not file any. .
post-sentence motions or appeals. On October 12, 2018, Defendant filed a PCRA Petition. On
. . I
1
Counts 6 and 7 merged for sentencing purposes.
Court Attachment A
January 24, 2019 Defendant;· through appointed· counsel, filed a supplemental PCRA Petition.
As previously indicated, the issue Defendant pursued at the PCRA hearing held on February 27,
2019 was trial counsel's alleged ineffectiveness for failing to advise him of the deportation
consequences of his guilty plea.
ID. LEGAL ANALYSIS
To be eligible for relief under 42 Pa.C.S.A. § 9543(a)(2) of the Post Conviction Relief
Act, .a petitioner must plead and prove by a preponderance of the evidence that "ineffective
assistance of counsel which, in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innoc.ence could have taken place."
'
Commonwealth v. Hickman, 799 A.2d 136, 140 n.2 (Pa. Super. 2002) (quoting 42 Pa.G.-�.A. §
9543(a)(2)(ii)). :
There is a-presumption that counsel is effective. Commonwealth v. Cross, 634 A.2d 173,.
175 (Pa� 1993) (citing Commonwealth�: Pierce, 527 A.2d 973, 975 (Pa. 1987)). Defendant
bears the burden of proving counsel's ineffectiveness and that burden does not shift. Cross, 634
A.2(j at 175 (citing Commonwealth v. Jones., 471 A.2d 879 (Pa. 1984)).
For a Defendant to prevail on an ineffectiveness claim, he must satisfy a jhree-prong test
and demonstrate �t: "(l � his underlying claim is of arguable merit; (2) the particular course of
· conduct pursued by counsel did not have some reasonable basis designed to effectuate his
interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the
outcome of the proceedings would have been different." Commonwealth v. AIL 10 A.3d 282,
291 (Pa. 2010) (citing Commonwealth v. (Michael) Pierce, 786 A.2d 203, 213 (Pa 2001));
Comm.on�ealth v. Kiroballzl 724 A.2d 326, 333 (Pa. 1999). "A failure to satisfy any prong of the
. .
ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v.
baniels, 963 A.2d 409, 419 (Pa 2009) (ci�g Commonwealth v. Sneed, 899 A.2d 1067, 1076
(Pa. 2006)). With regard to counsel not having a reasonable basis for his action, his approach
'
must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v.
. � 766 A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller� 431 A.2d .
. -
233, 234 (Pa. 1981)). Finally, trial counsel cannot be deemed ineffective for failing to pursue-a
meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003). ·
· Allegations of ineffectiveness in connection with a guilty plea will not justify relief
unless the ineffectiveness of counsel caused defendant to enter. an involuntary or unknowing
plea, Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010). If the defendant
enters a plea onthe advice of counsel, the voluntariness of the ple� depends on whether
counsel's advice was within the range of competence which would be expected of attorneys in
criminal cases. Id. A valid guilty plea must be knowingly, voluntarily and intelligently entered.
It is clear that counsel must inform a noncitizen defendant .as to the risk of deportation
that may.result from aguilty plea. Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However, our
Supreme Court has interpreted Padilla as requiring counsel to inform a defendant as to the risk of
deportation, not as to its certainty. Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.
. .
2013). When the risk of deportation is clear, "theduty to give correct advice is equally clear."
Padilla, 559 U.S. at 368. However, giving correct advice does not necessarily mean that counsel ·
. :,•
must tell a defendant he would definitely be deported. C4:1rtnnonwealth v. Escobar. 70 A.3d 838,
841 (Pa. Super. 2013). As the court noted in Escobar, there is po guarantee that.the United States
Attorney General would take all the steps necessary to carry out defendant's deportation. Id.
Here, Defendant alleged that he entered a guilty plea to .PWID Marijuana; DUI,
Controlled Substance; and DUI, Controlled Substance Impaired Ability, without being advised
. .
as to the deportation co�equences of his plea by counsel. Defendant testified that he would not
have pled guilty had he know he would be deported .. (Notes of Testimony, In re: PCRA Hearing,
February 27, 2019, (Vough, J.) (hereinafter "N.T._'') at 5).
Defendant. retained Joseph Sklarosky, Sr., Esq. (hereinafter "Attorney Sklarosky"),
. .
a
criminal defense attorney with forty..five years of experience, to represent him in connection with
the criminal case. :CN-T. 8-9). Defendant retained Attorney Sklarosky prior to -�e preliminary
hearing and he was aware that Defendant was not a United States citizen. (N.T. 9, 12). · Attorney
Sklarosky knew that a guilty plea to the charges filed against Defendant could subjecthim to
• I
deportation. (N.T.: 13, 15).
Defendant eventually pled guilty to PWID Marijuana; DUI, Controlled Substance; and
DUI, Controlled Substance Impaired Ability. The negotiated plea agreement was favorable to
.. I .
Defendant. Prior to pleading guilty, Attorney Sklarosky advised Defendant that he could be
. ·,
subject to deportation as Defendant
..
completed
.
Attorney Sklarosky's intake form, which
indicated that Defendant was not a U.S. citizen and had a green card. (N.T. 9-10; 12, C-1; 12-
13). Attorney Sklarosky testified that it is bis normal practice to refer all criminal clients who
are not U.S. citizens charged with misdemeanors or felonies and facing possible deportation to a
local immigration attorney. (N.T. 9-10, 13, 15-16). Attorney Sklarosky followed bis normal
·.. practice. in this case and gave the Defendant a business card for a local immigration attorney
priorto the plea hearing on October 16, 2017. (N.T. 6, 12-13). Defendant was made aware of the
•
possible deportation consequences of his .plea by Attorney Sklarosky as Defendant testified that
he received the immigration attorney's business card, but did not contact the immigration:
attorney. (N.T. 6).
Additionally, this Court found the testimony presented by Attorney Sklarosky at the
PCRA Hearing to be credible. He followed his normal practice by advising the Defendant that
his guilty plea may res,ult in deportation and gave the Defendant an immigration attorney's
business card. The Defendant admitted to receiving the immigration attorney's phone number,
but failed to contact the attorney, Accordingly, Defendant's ineffectiveness claim lacks merit as
Attorney Sklarosky provided the requisit� advice reg�,g his plea and deportation
consequences; Defendant knowingly, voluntarily, and intelligently entered-into his guilty plea
agreement. Therefore, Defendant's. Petition for Post Conviction Relief raises no issues of merit
I •
and must be denied.
BY TIIE COURT:
�7[/J
:MICHAEL T. VOUGH, J.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1522
_____________________________
LEMUEL L. COOPER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Bradford County.
Mark W. Moseley, Judge.
January 10, 2019
PER CURIAM.
AFFIRMED.
WOLF, LEWIS, and WETHERELL, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Lemuel L. Cooper, pro se, Appellant.
Ashley Brooke Moody, Attorney General, Tallahassee, for
Appellee.
2
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376 F.Supp. 1379 (1974)
GLOBAL INDUSTRIES, INC., Plaintiff,
v.
J. Wesley HARRIS et al., Defendants.
No. C-74-259-A.
United States District Court, N. D. Georgia, Atlanta Division.
May 22, 1974.
*1380 Hugh W. Gibert and Richard G. Garrett, Haas, Holland, Levison & Gibert, Atlanta, Ga., for plaintiff.
William R. Mellen and Arthur Gregory, McClain, Mellen, Bowling & Hickman, Atlanta, Ga., for defendants.
ORDER OF COURT
MOYE, District Judge.
Global Industries, Inc. (hereinafter "Global"), brings this action seeking an order permanently enjoining the abovenamed defendants from conducting an impending foreclosure sale of a tract of real property located in Bartow County, Georgia. Its federal cause of action is predicated on Sniadach-Fuentes[1] due process grounds, and the jurisdiction of this Court is invoked under 28 U.S.C. § 1331(a).[2] Under the same jurisdictional umbrella, plaintiff also attacks the attorney's fees provision of Ga.Code Ann. § 20-506 on due process and equal protection grounds.
The real property in question was purchased by the plaintiff on January 5, 1973. The property was conveyed to Global, which in turn executed a promissory note for $109,200 and deed to secure debt in favor of the sellers.
Relying on provisions in the note and security deed, defendants subsequently declared the plaintiff to be delinquent in making payments required by the note and began preparation for a foreclosure sale to be held in conformity with the procedure outlined in the deed to secure debt and Ga.Code Ann. § 67-1506. That sale was preliminarily enjoined pending the Court's decision on the merits of this controversy which is set forth below.
Compendious briefs filed by the parties have exhaustively treated every conceivable issue which might fairly be considered germane to resolution of the *1381 case. The Court has read with particular interest those portions dealing with the construction to be placed upon the waiver language in the promissory note and security deed, for it is that issue which is considered to be pivotal.
The power of sale found in the deed to secure debt recites that upon default of the grantor (Global), the grantee is empowered to sell the property in a manner prescribed therein.[3] The procedure outlined is substantially identical to the one prescribed in Ga.Code Ann. § 67-1506. But the power of sale, plaintiff contends, does not authorize the grantee to unilaterally determine the existence of a default. Global acknowledges that it waived its right to insist that the defendants sell the property by means of judicial foreclosure but asserts that only a judicial declaration of default preceded by notice and a hearing can constitutionally serve to "trigger" the foreclosure mechanism.
The documents, when read individually and in conjunction with one another, do not lend themselves to such an interpretation. Examination of the aforementioned power of sale reveals that the grantee, as agent and attorney in fact of the grantor, is empowered to execute and deliver to the purchaser at the foreclosure sale a conveyance which may contain recitals as to the occurrence of default. The recitals are made binding and conclusive upon the grantor. The security deed also sets forth the procedures to be followed after default and provides that all other notice is waived by the grantor.
Several provisions contained in the promissory note dated January 5, 1973, lend further credence to the defendants' position. The note states, in pertinent part, that:
"Should any installment not be paid when due, or should the maker, or makers, hereof fail to comply with any of the terms or requirements of a security deed of even date herewith, . . . the entire unpaid principal sum evidenced by this note, with all accrued interest, shall, at the option of the holder, and without notice to the undersigned, become due and may be collected forthwith, time being of the essence of this contract."
This language is amplified in a succeeding section which provides that "each of the undersigned, . . . further waives demand, protest, notice of demand, protest and non-payment."
*1382 The Court is fully aware that waivers of constitutional rights may not be implied. Fuentes v. Shevin, supra. And were the meaning that the defendants ascribe to the documents merely lurking in the interstices of the language, a contrary result might obtain. The import of the above-quoted provisions is clear, however. The defendants are authorized to conduct a foreclosure sale in the manner set forth in the security deed without having first to resort to judicial process, whenever they deem the plaintiff to be in default. Any other interpretation would frustrate the intent of the parties as expressed by their written agreements. Both the note and the security deed recite that time is of the essence. The obvious advantage of the waiver provisions to the creditor is to free him from cumbersome and time-consuming foreclosure procedures. Undeniably, there is potential for abuse attendant to any such grant of authority, but by the terms of the agreement it is incumbent upon the debtor to initiate injunctive proceedings should he feel that foreclosure has been undertaken erroneously or in bad faith.[4]
Michael Thevis, Chairman of the Board of Global, has testified by affidavit that he did not understand or intend that such a power be conferred upon the holders of the security deed. The thrust of Thevis's statement is that any waiver of the right to notice and a hearing which might be found in the instruments was not knowingly and intelligently made. Fuentes v. Shevin, supra; D. H. Overmyer Co. v. Frick Co., 405 U. S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Gonzalez v. County of Hidalgo, 489 F.2d 1043 (5th Cir. 1973).
Consonant with the Overmyer opinion, this Court recognizes the well-settled presumption against waiver of fundamental rights and will assume arguendo that waivers in a civil contest must be as closely scrutinized as those in criminal cases. Nevertheless, it is undisputed that the documents which this Court construes to constitute a waiver of any due process rights the plaintiff might otherwise have had, were executed by Global with the advice of counsel. In fact, the closing was held in the offices of Global's attorneys, and the defendants were not represented at the closing. Furthermore, the documents were presented and presumably prepared by counsel for Global. Under these circumstances, the Court does not feel that the plaintiff can later be heard to disclaim knowledge of their purport and meaning.
Global does not contend, nor would the facts support a finding, that a disparity of bargaining power existed or that the contractual provisions under consideration resulted from overreaching. The plaintiff has failed to demonstrate that the security deed and note constitute other than a contractual arrangement whereby it agreed to waive judicial process prior to foreclosure. That agreement would stand as a product of the parties' freedom to contract even in the absence of the challenged code section and would survive a declaration of that statute's unconstitutionality. See Adams v. Southern California First Nat'l Bank, 492 F.2d 324 (9th Cir. 1973).
The Court also notes that the plaintiff must establish as a factual predicate to any claim under the due process clause of the Fourteenth Amendment a significant degree of state involvement in the action(s) complained of. E. g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, 387 U. S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974). Whether the state has sufficiently interjected itself into the challenged conduct must be determined by weighing the facts and *1383 circumstances of each particular case. Burton v. Wilmington Parking Authority, supra.
Global points to Ga.Code Ann. § 67-1506 as providing the requisite state action in this case.[5] That statute, to be sure, regulates the manner in which foreclosure sales under powers contained in security deeds are conducted. But the creditor's power of sale is derived from the parties' contractual undertaking rather than from the statute. As Chief Judge Smith of this district recently observed:
"[Section 67-1506], however, unlike the personal property foreclosure acts, does not itself create any rights in creditors. Rather, its terms are limiting. . . .
"Thus, the legislative mandate sets minimal requirements for the exercise of any contractual power of sale contained in security instruments. In this sense, it may be deemed protective of consumer interests. The statute does not come into operation unless there already exists a power of sale contained in a deed to secure debt, mortgage, or other lien contract. It does not direct that a power of sale be employed; it merely specifies the minimal procedures to be employed once the parties have entered into a contractual relation."
Law v. United States Dept. of Agriculture, 366 F.Supp. 1233, 1238 (N.D.Ga. 1973). See also Ruff v. Lee,[6] 230 Ga. 426, 432, 197 S.E.2d 376 (1973), Gunter, J., concurring.
Thus, as noted above, the parties' right privately to agree to the remedy of nonjudicial foreclosure exists independently of the statute. The statute does not deprive a debtor of any preexisting rights or entitlements. Bond v. Dentzer, supra at 307; Adams v. Southern Calif. First Nat'l Bank, supra at 333.
The Court finds little significance in the fact that a clerk may perform the ministerial act of recording the deed under power evidencing sale[7] or that the courts of the State of Georgia may enforce the agreement the parties have made.[8] Were those factors considered determinative, every private agreement between citizens would be imbued with state action. Nor does the statutory requirement that the foreclosure sale take place on the courthouse steps approach the degree of "entwinement" between private and state interests necessary to bring the present case within Burton v. Wilmington Parking Authority, supra. See Bond v. Dentzer, supra at 305; Adams v. Southern California First Nat'l Bank, supra, at 332-333.
Both Bond, which found no significant state participation in New York's private wage assignment scheme, and Adams, which upheld the constitutionality of Section 9-503 of the Uniform Commercial Code, emphasized that the mere enactment of a statute does not constitute "encouragement" of a particular course of conduct. Both decisions distinguished Reitman v. Mulkey, supra, on the grounds that the legislative enactment there involved fomented discrimination by repealing former law and by impeding change. That decision, accordingly, has no application to the case at bar.
*1384 The Bond and Adams opinions exhaustively analyzed, distinguished and rejected every remaining case and state action rationale advanced by the plaintiff. It would require considerable temerity for a district judge to ignore the well-considered opinions of the Second and Ninth as well as the Eighth[9] Circuit Court of Appeals. Consequently, this Court can only conclude that the plaintiff has failed to state a federal cause of action, and the complaint is therefore dismissed insofar as it seeks relief on constitutional grounds from the threatened foreclosure.
The promissory note executed by Global also contained the following proviso:
"Should this note, or any part of the indebtedness evidenced hereby, be collected at law or through an Attorney-at-Law, the holder shall be entitled to collect attorney's fees in an amount equal to ten (10) per cent of the principal and interest, and all costs of collection."
The plaintiff seeks to have this Court enjoin the defendants from imposing attorney's fees on the grounds that imposition is authorized by a statute which is repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The statute, Ga.Code Ann. § 20-506,[10] is said to deprive the plaintiff of due process because it operates in conjunction with the unilateral declaration of default provisions previously discussed to inhibit free access to the courts. The plaintiff alleges a denial of equal protection on the grounds that a similar provision in favor of a debtor would be void under state law as a penalty.
With respect to state action, Global makes many of the same arguments which the Court has rejected above. Primary reliance is placed upon the district court's holding in Bond v. Dentzer, 362 F.Supp. 1373 (N.D.N.Y.1973), which was reversed by the Second Circuit Court of Appeals.
The single remaining contention is that Ga.Code Ann. § 20-506 validates *1385 the attorney's fees provision where it would otherwise be void as a penalty.[11] Yet, Global is unable to cite a single Georgia decision in which an attorney's fee agreement such as the one presently under consideration was declared unenforceable as a penalty. Were this the only information available, the Court would be understandably hesitant to find state action and to proceed to declare a state statute unconstitutional, for to do so would be an exercise in conjecture and speculation.
It is further apparent, however, that the proscription against penalties codified in Ga.Code Ann. § 20-1403[12] existed at common law. See, e. g., Mayor and Council of Washington v. Potomac Engineering and Construction Co., 132 Ga. 849, 65 S.E. 80 (1909); Florence Wagon Works v. Salmon, 8 Ga.App. 197, 68 S.E. 866 (1910). Notwithstanding this fact the Georgia Court of Appeals in Keating v. Woods-Young Co., 42 Ga. App. 63, 155 S.E. 206 (1930), upheld a stipulation which provided for the payment of attorney's fees in relation to the defendant's entire indebtedness under the contract. In so doing the court observed at page 72, 155 S.E. at page 210:
"[T]he contract for attorney's fees appears to be legal, since there was no objection to such a contract at common law. Merck v. American Freehold Land Mortgage Co., 79 Ga. 213(3) (7 S.E. 265); National Bank of Athens v. Danforth, 80 Ga. 55(8) (7 S.E. 546); Demere v. Germania Bank, 116 Ga. 317 (42 S.E 488); Oliver Typewriter Co. v. Fielder, 7 Ga.App. 525 (67 S.E. 210). The Georgia statute upon the subject (Civil Code of 1910, § 4252) is not the origin of all right to recover attorney's fees in this State; that is to say, it does not give a right where none existed at common law; on the other hand, it merely restricted a right which the common law recognized."
Given this authority and Global's failure to cite any other in support of its contentions, the Court must conclude that the plaintiff has not borne the burden of demonstrating state action with respect to the attorney's fees agreement.
The final matter before the Court is the plaintiff's motion to permanently enjoin the aforementioned foreclosure sale on the grounds that it has in fact honored its obligations under the promissory note. Both parties acknowledge that this is a state claim over which the Court may, at its discretion, take pendant jurisdiction. In United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), the Supreme Court stated: "Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."
Since the plaintiff's federal claims will not require a factual hearing in this Court and because no discernible prejudice to the plaintiff would result from requiring it to prosecute its state claim in the state courts of Georgia, the power of pendant jurisdiction will not be exercised in this case.
In summary, the Court finds that Global has failed to state a federal claim with respect to the foreclosure and attorney's fees issues. The Court declines to take pendant jurisdiction over the plaintiff's state claims course of action. The preliminary injunction previously issued by this Court is hereby dissolved, *1386 the motion for a permanent injunction is denied. Since it appears that the plaintiff can offer no additional facts in support of its claim, a final hearing or trial on the merits is unnecessary and this case is accordingly ordered dismissed.
NOTES
[1] Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, reh. denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972). Due to the disposition of this case on other issues, the Court need not decide the extent to which these precedents are affected by Mitchell v. W. T. Grant Co., ___ U.S. ___, 94 S.Ct. 1895, 40 L.Ed.2d 406, 42 U.S.L.W. 4671 (1974).
[2] 28 U.S.C. § 1331(a) provides:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."
[3] The power of sale reads:
"In case the debt hereby secured shall not be paid when it becomes due by maturity in due course, or by reason of a default as herein provided, Grantor hereby grants to Grantee, the following irrevocable power of attorney: To sell all or any part of the said property at auction, at the usual place for conducting sales at the Court House in the County where the land or any part thereof lies, in said State, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four weeks immediately preceding such sale (but without regard to the number of days) in a newspaper published in the County where the land or any part thereof lies, or in the paper in which the Sheriff's advertisements for such County are published, all other notice being hereby waived by Grantor, and Grantee (or any person on behalf of Grantee) may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a sufficient conveyance of said property in fee simple, which conveyance may contain recitals as to the happening of the default upon which the execution of the power of sale herein granted depends, and Grantor hereby constitutes and appoints Grantee the agent and attorney in fact of Grantor to make such recitals, and hereby covenants and agrees that the recitals so made by Grantee shall be binding and conclusive upon Grantor, and that the conveyance to be made by Grantee shall be effectual to bar equity of redemption of Grantor in and to said property, and Grantee shall collect the proceeds of such sale, and after reserving therefrom the entire amount of principal and interest due, together with the amount of taxes, assessments and premiums of insurance or other payments theretofore paid by Grantee, with eight per centum per annum thereon from date of payment, together with all costs and expenses of sale and ten per centum of the aggregate amount due for attorney's fees, shall pay any over-plus to Grantor as provided by law."
[4] Global also advances in this action the pendant state claim that it was not in default of its obligations under the note. See infra.
[5] Ga.Code Ann. § 67-1506 provides:
"No sale of real estate under powers contained in mortgages, debt, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of sheriff's sales in the county in which the real estate, or a part thereof, is located."
[6] Both Law and Ruff rejected arguments that Section 67-1506 is violative of due process. The constitutionality of Section 67-1506's statutory progenitor was upheld in Scott v. Paisley, 271 U.S. 632, 46 S.Ct. 591, 70 L.Ed. 1123 (1926).
[7] In Sniadach v. Family Finance Corp., supra, the state participated more intimately in the implementation of the offensive conduct. See Bond v. Dentzer, supra, at 305.
[8] Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), was rejected as a basis for finding state action under the facts in Bond and Adams, supra.
[9] The United States Court of Appeals for the Eighth Circuit recently held that self-help repossession pursuant to UCC § 9-503 evidenced no significant state participation. Bichel Optical Laboratories, Inc. v. Marquette Nat'l Bank of Minneapolis, 487 F.2d 906 (8th Cir. 1973).
[10] Ga.Code Ann. § 20-506 provides:
"Obligations to pay attorney's fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable, and collectible as a part of such debt, if such note or other evidence of indebtedness be collected by or through an attorney after maturity, subject to the following provisions:
"(a) If such note or other evidence of indebtedness provides for attorney's fees in some specific per cent. of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 per cent. of the principal and interest owing on said note or other evidence of indebtedness.
"(b) If such note or other evidence of indebtedness provides for the payment of reasonable attorney's fees, without specifying any specific per cent., such provision shall be construed to mean 15 per cent. of the first $500 principal and interest owing on such note or other evidence of indebtedness, and 10 per cent. of the amount of principal and interest owing thereon in excess of $500.
"(c) The holder of the note or other evidence of indebtedness, or his attorney at law, shall, after maturity of the obligation, notify in writing the maker, indorser or party sought to be held on said obligation that the provisions relative to payment of attorney's fees in addition to the principal and interest shall be enforced and that such maker, indorser or party sought to be held on said obligation has 10 days from the receipt of such notice to pay the principal and interest without the attorney's fees. If the maker, indorser or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney's fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice hereinbefore specified shall be the equivalent of such notice.
"(d) Obligations to pay attorney's fees contained in security deeds and bills of sale to secure debt shall be subject to provisions of this section where applicable."
[11] Like Section 67-1506, regulating sales under powers in security deeds, Section 20-506 does not come into play unless there is a preexisting agreement between the parties to pay attorney's fees upon a note or other evidence of indebtedness. Aultman v. Taylor Fertilizer Works, 125 Ga.App. 398, 401, 188 S.E.2d 157 (1972).
[12] Ga.Code Ann. § 20-1403 reads:
"Penalties in bonds are not liquidated damages; and even if called such, yet, if it appears unreasonable and not so actually intended by the parties, the law will give only the actual damages, and in all cases where the damage is capable of computation, and is not uncertain in its character, such stipulations will be declared to be penalties."
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133 Ga. App. 275 (1974)
211 S.E.2d 312
HOLLOMAN et al.
v.
THE STATE.
49410.
Court of Appeals of Georgia.
Argued May 28, 1974.
Decided September 18, 1974.
Rehearing Denied November 8, 1974.
Byrd, Groover & Buford, Denmark Groover, Jr., Frank D. Farrar, Jr., for appellants.
Joseph H. Briley, District Attorney, for appellee.
CLARK, Judge.
This appeal is by three defendants who were convicted of the misdemeanor of malpractice in office while serving as County Commissioners of Jones County from January 1, 1969, through December 31, 1972. The specific offense was the making of a contract for renovation of the county courthouse building on a cost plus basis without awarding such contract to the lowest bidder at public outcry and without advertisement and without making the contractor comply with certain statutory requirements imposed upon contracts made with public boards.
We quote the pertinent provisions of the special presentment entered as a true bill by the grand jury on September 29, 1973, wherein these defendants were charged "with the offense of Malpractice in Office (89-9907) for that the said J. C. Holloman, Corbin C. Roberts, and James C. Balkcom, as members of the County Commissioners of Jones County, Georgia, on 4th day of March, in the year of our Lord Nineteen Hundred and Sixty-nine, in the County aforesaid, did then and there, unlawfully and in the administration and under the color of their individual offices did employ Charles Washburn of Etheridge Bros. Construction Co., Inc. on a basis of cost plus 10% overhead plus 10% profit, to repair, renovate and remodel the Jones County, Georgia Courthouse Building, said accused Commissioners so acting without awarding the contract for said repair, renovation and remodeling to the lowest bidder, at public outcry, before the said Jones County, Georgia Courthouse as provided in § 23-1702 of the Code of Georgia Annotated and its Supplements and without having advertised the letting of said contract of repair, renovation and remodeling as provided by § 23-1703 of the Code of Georgia Annotated and its Supplements and without requiring compliance by the said Contractor thus employed by said accused Commissioners with the provisions of §§ 23-1704, 23-1705 and 23-1706 of the Code of Georgia Annotated and its Supplements and said accused Commissioners did by their action on March 4, 1969, thereby prevent competition in bidding for said *276 public work as prohibited and provided for in § 23-1710 of the Code of Georgia Annotated and its Supplements and that said actions by said accused Commissioners was [sic] against the public interest, was not justified, required or warranted by the economy of the times and was as a result thereof costly, extravagant and unnecessarily wasteful, all of said conduct on the part of said accused Commissioners being unknown to the Prosecutor until July, 1973, contrary to the laws of said State, the good order, peace and dignity thereof." (R. 3).
The three defendants filed a plea in bar, a plea of the statute of limitation, and a general demurrer, all of which were separately overruled. The trial resulted in a verdict of guilty and the court imposed separate sentences upon each of the defendants. Thereafter a motion for new trial was filed which was later amended. This amended new trial motion was overruled from which judgment the instant appeal was taken.
1. Having concluded that the offense was barred by the statute of limitation, we limit our opinion to that phase.
2. As the crime of malpractice in office is a misdemeanor, the applicable period is two years. Code §§ 27-601, 26-502. If, as contended by appellants, the indictment charges the offense to have been the making of a contract on March 4, 1969, then the two-year period would have expired before the special presentment dated September 29, 1973. The state argues that this statutory bar cannot here be applied for two reasons: (1) the crime was a continuing offense, the contention being that "as long as works, payment or other action was taken by the commissioners under this unlawful arrangement, then the offense continued"; (Brief, p. 8) and (2) there was a tolling period which is specifically covered by the indictment stating that "all of said conduct on the part of said accused Commissioners being unknown to the Prosecutor until July 1973." (R. 3). We are unable to accept either contention.
3. A reading of the indictment shows that the crime with which the defendants were charged occurred on March 4, 1969, when the individual contractor was employed to do the work on a cost plus basis. Such *277 employment constituted the agreement which was alleged to have been made in violation of the statute. Thus, the indictment spells out the offense in words taken from the original statute to be found at pp. 159, 160, of the Ga. L. 1878-9. This language now appears in Code § 23-1702 and reads: "Whenever it becomes necessary to build or repair any courthouse, jail, bridge, causeway, or other public works in any county, the officer having charge of the roads and revenues and public buildings of such county shall cause the same to be built or repaired by letting out the contract therefor to the lowest bidder, at public outcry, before the courthouse door, after having advertised the letting of said contracts ..." (Emphasis supplied.) We have underlined the word "contract" because it is the key word in the statute as well as in the indictment drafted to satisfy the statute.
In short, it was the cost plus contract which the defendants were charged to have made in violation of the statute. Nowhere in the statute is there any reference to "works, payment or other action" and therefore nothing to this effect was included in the indictment. The gravamen of the crime was making the cost-plus contract of March 4, 1969, without compliance with the statutory requirements and not the work that was done thereunder or the payments made during the contractor's performance of his employment agreement. Our view is fortified by the remainder of the indictment since Code Ann. §§ 23-1704, 23-1705 and 23-1706 deal with bond requirements on contracts made with public boards and public bodies.
4. Was the limitation statute tolled between March 4, 1969, the date of the making of the illegal employment contract, and July 1973, that being the first time that the district attorney learned of the illegal transaction? The indictment seeks to exclude such possibility by using the language that "all of said conduct on the part of said accused commissioners being unknown to the prosecutor until July 1973." (R. 3).
Our statute provides the limitation does not "run so long as the offender or offense is unknown." Code § 27-601. See also Code Ann. § 26-503 which excludes that period in which "The person committing the crime or *278 crimes is unknown."
The transcript discloses the work under the contract was begun in 1969 and continued until late 1971 and perhaps into 1972. Since the work was being done at the courthouse the fact of such renovation was obviously known to the public as well as to the county officials having their offices in the courthouse. But our concern must be as to knowledge of the illegal contract which constitutes the crime, not the work of the contractor.
The state contends that such knowledge of the illegality must be possessed by the district attorney, and accordingly placed in the transcript his absence of any information as to the manner in which the contract had been made. The appellants used the county sheriff as their witness and elicited from him testimony as to his awareness of the cost-plus contract. (T. Nov. 26, pp. 47-49). (We will deal hereinafter with two items concerning his testimony, to wit: (1) the fact that it was hearsay and (2) the development by the prosecution that he was not cognizant of the law on county contracts and did not know a contract of this type to be illegal.)
The defendants argue that as the sheriff is the county's chief law enforcement officer, his knowledge is imputable to the state. We are of the opinion that this defense contention must be upheld under the ruling of our court in Taylor v. State, 44 Ga. App. 64 (160 SE 667). Headnote 2 of that case reads: "It appearing from undisputed evidence that prior to the expiration of the statutory period in which an indictment for the offense in question could have been found and filed, the offense was known to one whose special duty it was to report it, and such knowledge being imputable to the State and being knowledge of the State in legal contemplation, and the special presentment having been found after the expiration of the statutory period, a prosecution for the offense was barred by the statute of limitations; and the court erred in overruling the motion for a new trial."
The individual involved in the Taylor case held a number of official positions, one of which was as deputy sheriff. That portion of the opinion appearing on pages 71 and 72 are applicable to the case at bar.
*279 Parenthetically, we are constrained to comment that the instant case is illustrative of the difficulties confronting lawyers and judges in the trial court who must "shoot from the hip." Here the district attorney sought to rebut the Taylor case by calling to the attention of the trial court that "the last appearance of the Taylor case, I think, is entirely contrary to the [defense] position." (T. Nov. 26, p. 36). Such confusion is understandable since the report in 44 Ga. App. 64 (160 SE 667) shows the decision to have been rendered December 17, 1931, and that certiorari was granted by the Supreme Court. Also, the later case of Taylor v. State, involved the same defendant and a similar offense of bribery of an Atlanta councilman. The subsequent case is reported in 174 Ga. 52 (162 SE 504). A reading of the two cases shows that there were two different indictments even though both involved the same individual and the same offense of bribery but one appeal went to this court and the other appeal was to the Supreme Court.
The Taylor decision of our court was accepted by certiorari but our decision as reported in 44 Ga. App. 64 (160 SE 667) continued for stare decisis purposes because the Supreme Court in 175 Ga. 642 (165 SE 733) dismissed its writ of certiorari. That dismissal occurred because at that date the Supreme Court did not have "jurisdiction to entertain, at the instance of the State, a petition for certiorari to the Court of Appeals in a criminal case." That principle of lack of jurisdiction for certiorari in criminal cases was recognized by the same bench contemporaneously in State v. B'Gos, 175 Ga. 627 (165 SE 566). The General Assembly has now enacted legislation authorizing certiorari from our court to the Supreme Court in criminal cases. See Ga. L. 1973, pp. 297, 298.
5. Although the sheriff's information was hearsay and would not generally be admissible as evidence, an officer has a duty to investigate breaches of the law that he knows of through hearsay as well as of his personal knowledge. This is demonstrated in search and seizure cases where the officer's affidavit is based on hearsay. Bostwick v. State, 124 Ga. App. 113 (182 SE2d 925); Strauss v. Stynchcombe, 224 Ga. 859, 864-865 (165 SE2d *280 302). See also Peters v. State, 114 Ga. App. 595, 596 (152 SE2d 647) where this court quoted with approval from United States v. Heitner, 149 F2d 105, 106, that "It is well settled that an arrest may be made upon hearsay evidence; and indeed, the `reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties."
6. Although the transcript indicates that the sheriff was unaware that the law made such contracts illegal, it is clear that such lack of knowledge is not sufficient. As was said in York v. Clopton, 32 Ga. 362, 365, "Ignorance of the law excuses no man, least of all a sheriff for having undertaken to perform the duties of his office, he must know and perform them at his peril."
7. In view of our ruling on the statute of limitation it is unnecessary for us to consider the remaining enumerations of error.
Judgment reversed. Bell, C. J., Quillian, J., concur.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
OMAR ODASZ SANCHEZ, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0487
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed October 10, 2016.
Petition for Writ of Certiorari -- Original Jurisdiction.
Omar Odasz Sanchez, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
The petition for writ of certiorari is denied on the merits.
ROBERTS, C.J., WETHERELL and ROWE, JJ., CONCUR.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00482-CV
Appellant, River City Drywall, LLC// Cross-Appellants, Eric Hanlon and Nalinh Hanlon
v.
Appellees, Eric Hanlon and Nalinh Hanlon// Cross-Appellee, River City Drywall, LLC
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-15-002089, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
ORDER
PER CURIAM
Cross-appellants Eric Hanlon and Nalinh Hanlon have filed a motion to dismiss
their cross-appeal and have certified that they have conferred with River City Drywall, LLC, and that
River City Drywall consents to the motion. See Tex. R. App. P. 42.1(a)(1), (b). The Hanlons also
aver that the dismissal will have no effect on the right of River City Drywall to seek relief to which
it would otherwise be entitled. See id. Accordingly, we grant the motion and dismiss the cross-
appeal. The appeal shall continue under the same cause number and shall be styled River City
Drywall, LLC v. Eric Hanlon and Nalinh Hanlon.
It is so ordered on February 23, 2018.
Before Justices Puryear, Pemberton, and Bourland
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128 F.Supp.2d 433 (2001)
David L. MONTGOMERY
v.
THE UNITED STATES ARMY CORPS OF ENGINEERS
No. CIV.A. G-00-361.
United States District Court, S.D. Texas, Galveston Division.
January 18, 2001.
*434 James Montgomery Bennett, Attorney at Law, Dickinson, TX, for David L Montgomery, plaintiffs.
William Brad Howard, Office of U.S. Attorney, Houston, TX, for the United States Army Corps of Engineers, defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
KENT, District Judge.
Plaintiff, a civilian employee of the United States Army Corps of Engineers, brings suit alleging that his employer breached the collective bargaining agreement it had with Plaintiff's work unit and also breached an oral contract. Now before the Court are Defendant's Motion to Dismiss For Lack of Subject Matter Jurisdiction and Motion to Dismiss for Failure to State a Claim. For the reasons stated below, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED and the Motion to Dismiss for Failure to State a Claim is not reached.
I. BACKGROUND
Plaintiff is a licensed professional engineer for the Defendant, the United States Army Corps of Engineers, Galveston Division ("Corps of Engineers"). In March of 1998, the Chief of the Engineering Division in the Galveston District, Joe P. Jarrell, allegedly offered Plaintiff a Team Leader position with the promise of more money and retention of his window seat,[1] to which Plaintiff had been assigned when he reached the position of GS 12. On April 1, 1998, Plaintiff was officially appointed as Team Leader and assigned specific duties. Nevertheless, Plaintiff claims he did not receive the higher pay that he was promised and his window seat was later taken away. On October 20, 1999 he filed a grievance with the Corps of Engineers requesting back pay, a higher rate of pay, appointment to GS 14, and recovery of his window seat. Plaintiff's grievance was denied on December 7, 1999 by Ernest H. Wittig, Chief of the Galveston Corps Engineering Branch, again on March 3, 2000 by Harry G. Kohler, Chief of the Galveston District Engineering and Construction Section, and finally on March 16, 2000 by Colonel Nicholas J. Buechler, District Engineer for the Galveston District. On May 22, 2000, Darrell A. Davis, Chief Union Steward for the Galveston District, notified Plaintiff that the Union *435 would not take the grievance to arbitration with Corps. Plaintiff then filed suit in this Court, claiming that under the collective bargaining agreement in force at the time ("CBA"), he should have been classified as GS 14 and that the Government breached an oral contract by taking away his window seat.
II. LEGAL STANDARD
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). The burden of proof on a motion to dismiss under Rule 12(b)(1) is on the party asserting jurisdiction. See Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir. 1984); McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995).
A motion to dismiss pursuant to Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). See Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010; Benton v. United States, 960 F.2d 19, 20 (5th Cir. 1992). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993).
Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010 (standard applied in context of Rule 12(b)(1)); Home Capital Collateral Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir.1996)(applying standard in context of Rule 12(b)(6)); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994)(Rule 12(b)(6)). The United States Court of Appeals for the Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and will be appropriate only in rare circumstances. Mahone v. Addicks Util. Dist. Of Harris County, 836 F.2d 921, 926 (5th Cir.1988).
III. ANALYSIS
Defendant argues that Plaintiff's case should be dismissed because it is preempted by the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. ("CSRA") which provides "`an elaborate ... framework for evaluating adverse personnel actions against [federal employees].'" Rollins v. Marsh, 937 F.2d 134, 137 (5th Cir.1991)(citing United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988)). The CSRA provides the exclusive remedy for personnel decisions arising out of a federal employment relationship. See Bush v. Lucas, 462 U.S. 367, 386, 103 S.Ct. 2404, 2415, 76 L.Ed.2d 648 (1983)(holding that the CSRA provides the exclusive remedy even for cases involving first amendment violations); Grisham v. United States, 103 F.3d 24, 26 (5th Cir.1997)(holding that the CSRA provides the exclusive remedy even for cases under the Whistleblower Protection Act); Morales v. Dep't of the Army, 947 F.2d 766, 769 (5th Cir.1991); Rollins, 937 F.2d at 137, 139-40. Under the CSRA, a collective bargaining agreement negotiated between a union and an employer provides the "procedures for the settlement of grievances, including questions of arbitrability." 5 U.S.C. § 7121(a)(1). Moreover, these negotiated procedures constitute "the exclusive administrative procedures for resolving grievances which fall within its coverage." Id.
The CBA involved in this case defines "grievance" to include claims, such as that *436 of Plaintiff, alleging breach of the CBA. Under the CBA's grievance procedure, the aggrieved employee may submit grievances to various supervisors. Failing a favorable outcome at this level, the employer or union may refer the matter to binding arbitration. Plaintiff filed the required grievances, all of which were denied. Neither the employer nor the Union chose to refer this matter to arbitration in this instance. Under the CSRA, even having exhausted administrative remedies, Plaintiff is not entitled to judicial review. See Morales, 947 F.2d at 768.
Plaintiff argues, however, that his claims fall within an exception to the grievance requirement contained in 5 U.S.C. § 7121(c)(5). Section 7121(c) excludes from the grievance requirement, among other things, grievances regarding "the classification of any position which does not result in the reduction in grade or pay of an employee." Id. The CBA likewise excludes such grievances from the grievance procedure, using identical language. Plaintiff makes the clever argument that because his grade and salary was never reduced, just not increased as promised, the exception applies. The Court concludes, however, that even if Plaintiff's claims come within the exception, which the Court doubts, judicial review is nevertheless foreclosed.
The meaning of the exception contained 5 U.S.C. § 7121(c)(5) is apparently a question of first impression. In determining its meaning, the Court gains insight from the statute governing the appellate jurisdiction of the Merit Systems Protection Board ("MSPB"), a panel which considers certain adverse personnel decisions. Under 5 U.S.C. § 7512(3),(4), an employee may appeal to the MSPB for, among other things, "a reduction in grade" or "a reduction in pay." See also 5 U.S.C. § 7513(d). Like in section 7121(c)(5), reassignments not involving a reduction in grade or pay are excluded. See Wood v. Merit Systems Protection Bd., 938 F.2d 1280, 1282 (Fed. Cir.1991); Artmann v. Dep't of the Interior, 926 F.2d 1120, 1122 (Fed.Cir.1991); Wilson v. Merit Systems Protection Bd., 807 F.2d 1577, 1579 (Fed.Cir.1986). Nevertheless, Courts have held the MSPB's lack of jurisdiction to consider reassignments not involving reductions in grade or pay does not give plaintiffs alleging such claims the right to proceed in federal district court. In Broadway v. Block, 694 F.2d 979 (5th Cir.1982), the Plaintiff, a federal employee who was reassigned but did not suffer a reduction in grade or pay, had brought suit in federal district court asking for reinstatement and damages. The Court first noted that the only source of federal district court review for a federal employee under the CSRA is for certain cases of discrimination. See id. at 983 (citing 5. U.S.C. § 7703(b)(2)). The Court held that the MSPB did not have jurisdiction over the plaintiff's claims and that the proper course of action was for the plaintiff to bring the matter, not to court, but to the attention of the Special Counsel of the MSPB who is authorized to investigate "any allegation concerning activities prohibited by any civil service law, rule, or regulation." Id. at 982 (internal citations omitted). The Special Counsel, the Court noted, may request that the MSPB consider and take action on the matter. See id. In a subsequent case, the Court reached a similar conclusion with regard to an employee, classified at the level of GS 14, claiming that he should have been classified at the level of GS 15. See Towers v. Horner, 791 F.2d 1244, 1247 (5th Cir.1986). Section 7512 embodies the principle that the federal government, as an employer, should be able to reclassify positions while retaining pay and grade without being faced with administrative actions. The limit on the MSPB's jurisdiction "was perceived as a clear quid pro quo arrangement; in return for surrendering the right to appeal individual reassignment decisions, federal employees were accorded significantly greater financial and grading protections in case of downgrades." Atwell v. Merit Systems Protection Bd., 670 F.2d 272, 283 (D.C.Cir.1981). While neither *437 Broadway nor Towers had reason to consider section 7121(c)(5), this Court interprets this provision in a similar fashion. Section 7121(c)(5), like section 7512, does not authorize suits in federal district court, but rather eliminates review in certain cases altogether. The alternative reading would lead to the absurd result that judicial review is available to those claiming reassignments not involving reductions in grade or pay, but not to those actually suffering a loss of grade or pay. Cf. Towers, 791 F.2d at 1246; Carducci v. Regan, 714 F.2d 171, 174 (D.C.Cir.1983)("[T]he exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lesser personnel actions not involving constitutional claims, an access to the courts more immediate and direct than the statute provides with regard to major adverse actions."). Plaintiff's claims, however, are arguably not of the type envisioned by the statutory exception; his claims are not based on a simple reclassification without loss of grade or pay, but rather, in essence, are based on the denial of a promised promotion. Whether or not Plaintiff's claims come within the exception, however, review by this Court is foreclosed.
IV. CONCLUSION
For the reason stated above, Defendant's Motion to Dismiss For Lack of Subject Matter Jurisdiction is GRANTED. Defendant's Motion to Dismiss for Failure to State a Claim is not reached. The parties are ordered to bear their own costs in the matter incurred herein to date.
IT IS SO ORDERED.
FINAL JUDGMENT
For the reasons set forth in the Order issued this date, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is hereby GRANTED and Judgment is entered for Defendant. All parties are ORDERED to bear their own costs and attorney's fees incurred herein to date.
THIS IS A FINAL JUDGMENT.
IT IS SO ORDERED.
NOTES
[1] Other than an unhelpful reference to it as "nonmonetary compensation," the briefing does not define "window seat." The Court is thus unsure whether it is some term of art or refers literally to a seat in the office next to a window. As Plaintiff complains of being moved to "less desirable location," the Court assumes the latter.
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932 N.E.2d 664 (2010)
In re ITT DERIVATIVE LITIGATION,
Sylvia B. Piven, et al., Plaintiffs,
v.
ITT CORPORATION, et al., Defendants.
No. 94S00-0911-CQ-508.
Supreme Court of Indiana.
June 28, 2010.
*665 Robert I. Harwood, Samuel K. Rosen, New York, NY, Irwin B. Levin, Richard E. Shevitz, Arend J. Abel, Scott D. Gilchrist, Indianapolis, IN, Attorneys for Plaintiffs Anthony Reale and Robert Wilkinson.
Peter J. Rusthoven, Matthew S. Winings, Indianapolis, IN, Attorneys for Defendants Special Litigation Committee of the Board of Directors of ITT Corporation.
Jon B. Laramore, Matthew T. Albaugh, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Legal Foundation, Inc.
SHEPARD, Chief Justice.
In 1986, the Indiana General Assembly adopted a new framework for business corporations. Broadly put, this case turns on whether that framework largely relies on business judgments by corporate directors in deciding whether a company should pursue certain claims it might have, or instead looks favorably to derivative suits initiated by individual stockholders. We conclude that the statute's text, its history, and our caselaw militate in favor of the former.
In particular, the U.S. District Court for the Southern District of New York has asked us about the standards to be applied under Indiana law for determining whether a shareholder can be excused from demanding that a corporate board act and whether a board deciding not to act stands in the way of the shareholder's suit. Pursuant to Indiana Appellate Rule 64, Judge Cathy Seibel has certified the following question:
What standard should be applied in determining whether a director is "disinterested" *666 within the meaning of Indiana Code § 23-1-32-4(d), and more specifically, is it the same standard as is used in determining whether a director is disinterested for purposes of excusing demand on the corporation's directors under Federal Rule of Civil Procedure 23.1 and Rales v. Blasband, 634 A.2d 927, 936 (Del.1993)?
We have accepted this certified question and now hold that the Indiana Business Corporation Law employs the same standard for showing "lack of disinterestedness" both as to the composition of special board committees under Indiana Code § 23-1-32-4 and to the requirement that a shareholder must make a demand that the corporation's board act unless the demand would be futile.
Background
ITT Corporation is a global, multi-industry Indiana corporation engaged in the design and manufacture of a wide range of engineered products and services. At the relevant time, ITT generated $4.8 billion in sales and had 42,000 employees in 49 countries. ITT has several business segments and multiple business units. One of ITT's business units, Night Vision, located in Roanoke, Virginia, is the subject of this case. (App. at 493.) Night Vision, which generated 4.2% of ITT's total revenues, supplies night vision equipment to U.S. and allied military forces and U.S. law enforcement officers. (Id.)
This action arises from the conduct of employees in ITT's Night Vision unit. In 2007, ITT pled guilty to certain charges, entered a deferred prosecution agreement on another charge, and agreed to pay fines and penalties of $50 million and invest another $50 million in developing night vision systems for the U.S. military. The present suit is a derivative action, on behalf of ITT, brought by ITT shareholders Robert Wilkinson and Anthony Reale against all ITT directors.[1] Wilkinson and Reale filed suit in District Court seeking to recover the criminal fines and penalties that ITT was required to pay because it exported military technology to various countries in violation of U.S. State Department restrictions on the export of technical data. The plaintiffs allege that the directors violated fiduciary duties by failing to monitor and supervise management of the Night Vision unit.
Wilkinson did not make any demand on ITT's board to pursue the claims, and has argued this lack of demand should be excused as futile. Applying the standard adopted in Rales v. Blasband, 634 A.2d 927 (Del.1993), the District Court held that the plaintiffs failed to allege facts demonstrating that the defendants were unable to consider a demand with independence and disinterest because the plaintiffs did not show "that a majority of the Director Defendants face a substantial likelihood of liability for consciously failing to fulfill their fiduciary duties." (App. at 32.) The District Court dismissed Wilkinson's claim with prejudice.
Reale, on the other hand, did make a demand on ITT's board to pursue the asserted claims. In response, the board appointed a Special Litigation Committee (SLC) to consider whether the corporation should pursue the claims in question. Indiana's Business Corporation Law imbues the decisions of such committees with special importance:
*667 (c) If the committee determines that pursuit of a right or remedy through a derivative proceeding or otherwise is not in the best interests of the corporation, the merits of that determination shall be presumed to be conclusive against any shareholder making a demand or bringing a derivative proceeding with respect to such right or remedy, unless such shareholder can demonstrate that:
(1) The committee was not "disinterested" within the meaning of this section; or
(2) The committee's determination was not made after an investigation conducted in good faith.
(d) For purposes of this section, a director or other person is "disinterested" if the director or other person:
(1) Has not been made a party to a derivative proceeding seeking to assert the right or remedy in question, or has been made a party but only on the basis of a frivolous or insubstantial claim or for the sole purpose of seeking to disqualify the director or other person from serving on the committee;
(2) Is able under the circumstances to render a determination in the best interests of the corporation; and
(3) Is not an officer, employee, or agent of the corporation or of a related corporation. However, an officer, employee, or agent of the corporation or a related corporation who meets the standards of subdivisions (1) and (2) shall be considered disinterested in any case in which the right or remedy under scrutiny is not assertable against a director or officer of the corporation or the related corporation.
Ind.Code § 23-1-32-4(c) (emphasis added).
The District Court concluded that the three independent, outside directors appointed to the Special Litigation Committee were not "disinterested" for the purposes of Indiana Code § 23-1-32-4.
The court based its conclusion on Indiana Code § 23-1-32-4(d)(1), which provides that directors named in a derivative suit remain "disinterested" if they are named in the action "only on the basis of a frivolous or insubstantial claim or for the sole purpose of seeking to disqualify the director ... from serving on the committee." The court reasoned that "frivolous or insubstantial" means that unless it could be shown that the claim against the SLC was frivolous, the SLC's work must be disregarded. That is, the District Court found that the standard under Indiana Code § 23-1-32-4 was different, "more plaintiff-friendly than the much more onerous standard for showing a lack of disinterestedness in the demand futility context." (App. at 38.). This conclusion led to denying the defendants' motion to dismiss.
Indiana's Business Corporation Law
The Indiana General Assembly passed the Indiana Business Corporation Law (BCL) in 1986 based on the recommendations of the Indiana General Corporation Law Study Commission. 1986 Ind. Acts 1377-1532. The Commission largely modeled the BCL after the 1984 version of the Revised Model Business Corporation Act, a guide for state business corporation statutes published by the Committee on Corporate Laws of the American Bar Association's Section on Business Law. In re Guidant S'holders Derivative Litig., 841 N.E.2d 571, 573 (Ind.2006). The BCL departs from the model legislation, however, in ways to be discussed below.
I. Indiana's Standard on Demand Futility
The substantive law on demand is the law of the state of incorporation. Kamen *668 v. Kemper Fin. Servs. Inc., 500 U.S. 90, 108-09, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991). ITT is an Indiana corporation, so the BCL dictates the circumstances under which demand is excused. The BCL's demand provision reads:
A complaint in a proceeding brought in the right of a corporation must be verified and allege with particularity the demand made, if any, to obtain action by the board of directors and either that the demand was refused or ignored or why the shareholder did not make the demand. Whether or not a demand for action was made, if the corporation commences an investigation of the charges made in the demand or complaint (including an investigation commenced under section 4 of this chapter), the court may stay any proceeding until the investigation is completed.
Ind.Code § 23-1-32-2.
As mentioned above, Indiana law requires that potential derivative plaintiffs make a demand on the board of directors that it pursue the potential claims, unless the demand would be futile. What constitutes an adequate excuse for not making a shareholder demand is neither enumerated nor explained in commentary. In re Guidant S'holders Derivative Litig., 841 N.E.2d at 573. Indiana Code § 23-1-32-2 and its official comments provide only a "modest explanation." Id.[2] Thus, we have looked to Delaware law when considering cases involving alleged breaches of fiduciary duties. See, e.g., G & N Aircraft, Inc., 743 N.E.2d at 238.
To excuse demand, a court must determine whether the particularized factual allegations create a reasonable doubt that the board could have properly exercised disinterested business judgment in responding to a demand. Rales, 634 A.2d at 934. A director is "interested" for demand futility purposes if a derivative claim poses a significant risk of personal liability for the director. Id. at 936. Being deemed "interested" requires more than a "mere threat" of personal liabilitythere must be "a substantial likelihood" of liability for the director. Id.
Personal liability for claims premised on the breach of the fiduciary duty to monitor corporate employees are analyzed according to the standards set forth in In re Caremark Int'l Derivative Litig., 698 A.2d 959 (Del.Ch.1996). The showing required by the plaintiff is particularly high for this theory of director liability. The Delaware Supreme Court has described it this way:
[T]he necessary conditions predicate for director oversight liability [are]: (a) the directors utterly failed to implement any reporting or information system or controls; or (b) having implemented such a system or controls, consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention. In either case, imposition of liability requires a showing that the directors knew that they were not discharging their fiduciary obligations.
Stone ex rel. AmSouth Bancorp. v. Ritter, 911 A.2d 362, 370 (Del.2006) (emphasis in original); accord Caremark, 698 A.2d at 971. To impose liability for a failure in monitoring, the claimant must demonstrate that the directors made a conscious decision to breach their duty of care and also show that the directors acted in bad faith. Desimone v. Barrows, 924 A.2d 908, 935 (Del.Ch.2007). Additionally, where a *669 company's articles of incorporation provide for exculpation of directors from personal liability, the plaintiff must plead a nonexculpated claim against the directors based on particularized facts in order to show a "serious threat" of liability. In re Citigroup Inc. S'holder Derivative Litig., 964 A.2d 106, 124-25 (Del.Ch.2009).
Thus, the District Court properly concluded that in assessing the futility of a demand, Indiana law determines whether a director is "disinterested" by asking whether a derivative claim poses a significant risk of personal liability for the directorthe Rales standard. If anything, our law on director liability requires an even stronger showing than Delaware's. To establish personal liability for a director, the plaintiff must plead particularized facts that the director engaged in "willful or reckless misconduct." Ind.Code § 23-1-35-1(e)(2). This liability standard adopted by the BCL served to narrow the bases for director liability. Ind.Code Ann. § 23-1-35-1(e) cmt (LexisNexis 1999 Replacement & Supp. 2009) (explaining that the liability standard of subsection (e) responded to increasing amount of litigation against directors, the increasing expense of defending such claims, and the increasing cost of director and officer liability insurance).
The District Court correctly applied instructive Delaware caselaw to determine the demand futility standards that Indiana would apply.
II. Our Standard on SLC Members
The certified question arises from the plaintiff's argument that the standard used to determine whether a director is "disinterested" within the meaning of Indiana Code § 23-1-32-4(d) is substantially different from the standard used in determining whether a director is disinterested for purposes of excusing demand on the corporation's board under Federal Rule of Civil Procedure 23.1 and Rales. The District Court agreed with the plaintiffs and held that to avoid dismissal the plaintiffs need only show that the claims asserted against the directors were not frivolous. Because the court found that the SLC directors were "not disinterested" under that test, it determined that the SLC's determination was not conclusive.
We take a different view. We conclude that the BCL requires the application of a consistent standard to determine whether directors are considered "disinterested" in both the SLC and demand futility contexts. The rules of statutory construction and the complementary scheme under which derivative proceedings operate produce this result.
As we noted above, Indiana Code § 23-1-32-4 allows the board of directors of a corporation to form a special committee to determine whether it is in the best interest of the corporation to pursue any legal rights or remedies that it may have. The SLC's determination shall be presumed to be conclusive unless the shareholder can demonstrate that the SLC was not disinterested. Ind.Code § 23-1-32-4(c); see also In re Guidant S'holders Derivative Litig., 841 N.E.2d at 575. Pursuant to Indiana Code § 23-1-32-4(d), a director is "disinterested" if the director
(1) has not been made a party to a derivative proceeding seeking to assert the right or remedy in question, or has been made a party but only on the basis of a frivolous or insubstantial claim or for the sole purpose of seeking to disqualify the director or other person from serving on the committee;
(2) is able under the circumstances to render a determination in the best interests of the corporation; and
*670 (3) is not an officer, employee, or agent of the corporation or of a related corporation.
Thus, under subsection (d)(1), directors or other persons named in a derivative suit remain "disinterested" if they were joined "only on the basis of a frivolous or insubstantial claim or for the sole purpose of seeking to disqualify the director or other person from serving on the committee." The plaintiffs have understandably concentrated on the word "frivolous," but that does not give due consideration to "insubstantial." We interpret a statute in order to give effect to every word and render no part meaningless if it can be reconciled with the rest of the statute. Bagnall v. Town of Beverly Shores, 726 N.E.2d 782 (Ind.2000). As the Special Litigation Committee points out, "Giving `insubstantial' its obvious definition... `not substantial' ... comports with consistent authority that disinterestedness turns on whether a director faces `substantial' risk of liability." (Response Br. of the Def. at 3.)[3] And the disjunctive, "or," listing in Indiana Code § 23-1-32-4(d)(1) demonstrates legislative intent to establish distinct or alternative statutory provisions. See Prewitt v. State, 878 N.E.2d 184, 186 (Ind.2007).
Beyond this point about the workload of a preposition is the principle that courts construe statutes covering the same subject matter in ways that produce a harmonious statutory scheme. See Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind.2009). Indiana Code § 23-1-32-4 works with Indiana Code § 23-1-32-2 in expressing an even stronger preference for board management and direction than the predecessor statute. In re Guidant S'holders Derivative Litig., 841 N.E.2d at 575. The official comments to the BCL indicate that "the decision whether and to what extent to investigate and prosecute corporate claims ... should in most instances be subject to the judgment and control of the board." Ind.Code § 23-1-32-4 cmt. This is consistent with the BCL's adoption of "a strongly pro-management version of the business judgment rule," permitting director liability only for "recklessness or willful misconduct." See G & N Aircraft, Inc., 743 N.E.2d at 238. Departures from the model legislation to give increased discretion to the board support the BCL's underlying policy to increase the power vested in the board of directors to oversee and direct the activities of the corporation.[4] Overall, BCL provisions make it more difficult to find a director liable and to bring a derivative suit.
Determining that a named director is "interested" as respects all claims save for the outright frivolous would likely preclude most directors from serving on an SLC which considers shareholder demands. Ousting directors from such roles on a broader basis than that mandated by Rales undermines the intent of Indiana's BCL. The BCL's strong preference that directors, not shareholders, control corporate rights applies equally in the "demand excused" and "demand refused" scenarios. Neither the statutory language nor the policies underlying the BCL suggest that the standard for showing a lack of disinterestedness pursuant to Indiana Code § 23-1-32-4(d) should be more "plaintiff-friendly" than the showing required in the demand *671 futility context.[5] Any other reading frustrates the statute's primary objective that the decision whether to investigate and prosecute claims should be subject to the control of the board in most instances. The BCL is deliberate in its attempts to construct a statutory scheme that would allow corporations to operate efficiently and allow directors to exercise control over the corporation's activities.
Conclusion
Under the Indiana Business Corporation Law, the same "disinterestedness" standard applies in both the demand futility context of Indiana Code § 23-1-32-2 and the investigatory committee procedure of Indiana Code § 23-1-32-4. In both instances, the shareholders must show that the directors face a substantial likelihood of personal liability on the claims to establish that a director is "not disinterested."
DICKSON, BOEHM, and RUCKER, JJ., concur.
SULLIVAN, J., not participating.
NOTES
[1] Derivative actions are suits asserted by a shareholder on the corporation's behalf against a third party because of the corporation's failure to take some action against the third party. G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 234 (Ind.2001). Derivative actions are brought in order to redress an injury sustained by the corporation or to enforce a duty owed to the corporation. Id.
[2] The official comments to the BCL may be consulted by the courts to determine the underlying policies of the BCL and to serve as a guide in its construction and application. Ind.Code § 23-1-17-5.
[3] See, e.g., Rales, 634 A.2d at 936 (demand futility based on lack of "independence or disinterestedness of directors" requires proof of "substantial likelihood" of director liability) (quoting Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984)).
[4] Indiana Code § 23-1-32-4 was adopted in direct response to Zapata v. Maldonado, 430 A.2d 779 (Del. 1981). In re Guidant S'holders Derivative Litig., 841 N.E.2d at 575.
[5] As amicus Indiana Legal Foundation has pointed out, "This provision giving authority to board members on Special Litigation Committees is directly linked to the changed standard for directors' liability in the BCL. The Special Litigation Committee provision was enacted at the same time as the law making directors liable only for willful misconduct or recklessness, the first time a state had raised the standard for directors' liability to be greater than negligence." (Br. of Indiana Legal Foundation at 6.)
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635 So.2d 79 (1994)
CITICORP INSURANCE BROKERS (MARINE), LTD. and Nelson Hurst Marine Limited, Appellants,
v.
J.R. CHARMAN, a representative underwriter at Lloyd's, London, Appellee.
No. 93-1025.
District Court of Appeal of Florida, First District.
January 20, 1994.
*80 Daniel S. Schwartz and James M. Kaplan of Wilson, Elser, Moskowitz, Edelman & Dicker, Miami, for appellants.
James E. Cobb and Frank A. Ashton of Peek & Cobb, P.A., Jacksonville, for appellee.
DAVIS, Judge.
The appellants appeal from an order of the trial court denying their motion to dismiss for lack of personal jurisdiction. Because the trial court correctly determined that the appellants were conducting business in the State of Florida from which the cause of action arose, we affirm.
The facts are undisputed. In January 1990, Adria Cruise Co, Ltd. (Adria) was the owner of a 164 foot steel-hulled vessel known as the M/V Adria. The M/V Adria was moored in Florida while work was being done on her. Adria requested that its insurance agent, Beale Marine & Casualty, a Jacksonville marine insurance broker, procure agreed value hull insurance for the M/V Adria. Roger Beale, the president of Beale Marine, was unable to procure the coverage locally, so he traveled to London and contacted Citicorp Insurance Brokers, (Marine), Ltd,[1] a London insurance broker, who arranged for the coverage through J.R. Charman, a representative underwriter at Lloyd's London. Subsequently, Citicorp sent Beale Marine in Florida a telefax representing that $4,000,000 in coverage existed for the M/V Adria in the event of total loss; that representation later turned out to be false. When the M/V Adria set sail, she sank off the coast of Florida. Adria sought the $4,000,000 from Charman. Charman was subjected to a lawsuit in which he expended over a million dollars. The present suit was filed by Charman against the appellants under theories of equitable subrogation and wrongful act. Appellants moved to dismiss for lack of personal jurisdiction. The trial court denied the motion.
To subject an out-of-state defendant to the jurisdiction of the Florida courts, two criteria must be met: (1) the defendant must have performed one of the acts in the Florida Long-arm Statute, § 48.193, Florida Statutes (1991), from which the cause of action arises, and (2) the defendant must have sufficient "minimum contacts" with the State of Florida to satisfy principles of due process. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). Appellants do not argue that minimum contacts are lacking. Thus, the only question before the court is whether the appellant performed one of the acts enumerated in section 48.193 from which the cause of action arises.
The appellee asserts that the appellants have subjected themselves to personal jurisdiction by virtue of section 48.193(1)(a), which provides:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
The appellants assert that they have not operated, conducted, engaged in or carried on a business in Florida, and in any event, *81 the cause of action did not arise from any of its activities in the state.
The appellants have no offices or agents in Florida, but engaged in the following activities:
1. Utilizing in the past ten years forty placement brokers to handle American business, which brokers made twenty-four trips to Florida in the five years prior to the complaint.
2. Sending "cover notes" reflecting the insurance coverage procured to Florida Brokers for further transfer to the insured party.
3. Deriving commissions of almost $600,000 in the past five years from within the State of Florida.
4. Sending representatives to Florida on two occasions to directly solicit business from Beale Marine.
5. Responding to a request from Beale Marine by procuring insurance for the M/V Adria for which it charged $30,600.
6. Sending numerous letters and telefaxes back and forth to Beale Marine negotiating coverage for the M/V Adria.
7. Sending a telefax to Beale Marine in Florida incorrectly representing that $4,000,000 in coverage existed for the M/V Adria in the event of total loss.
8. Corresponding with Beale Marine and offering advice and assistance regarding claims handling.
To invoke long-arm jurisdiction over a foreign corporation under section 48.193(1)(a), the activities of the corporation "must be considered collectively and show a general course of business activity in the state for pecuniary benefits." Foster, Pepper & Riviera v. Hansard, 611 So.2d 581, 582 (Fla. 1st DCA 1992). We agree with the trial court that the above activities do constitute conducting business in this state within the parameters of section 48.193(1)(a).
We reject the appellants' argument that they merely engaged in solicitation, which is expressly provided for under subsection (f) of the statute and thus must be excluded under subsection (a).[2] Subsection (f)[3] is not the exclusive basis for jurisdiction over one who regularly solicits business in Florida. The case law indicates that solicitation is one factor the courts consider in deciding whether a company is conducting business in the state. For example, in Canron Corp. v. Holt, 444 So.2d 529 (Fla. 1st DCA 1984), the court held the defendant was "doing business" under section 48.193(1)(a) where it had regularly solicited business in Florida through direct mail and by sending its sales persons to visit Florida customers, had a service representative residing in Florida, and conducted training for its product. See also Milberg Factors, Inc. v. Greenbaum, 585 So.2d 1089, 1091 (Fla. 3d DCA 1991). Subsection (f) provides for personal jurisdiction when a defendant's solicitation activities do not rise to the level of conducting business, but nonetheless result in physical injury to person or property. See generally, Aetna Life & Cas. Co. v. Thermo-O-Disc, Inc., 511 So.2d 992 (Fla. 1987); see also Price v. Point Marine, Inc., 610 So.2d 1339 (Fla. 1st DCA 1992). Thus, contrary to the appellants' position, we do not find that long-arm jurisdiction over one who regularly conducts solicitation activities can only be founded upon subsection (f).
Moreover, we find that the appellants' activities go beyond "mere solicitation." Here the appellants had representatives traveling in the state, visiting various brokerage offices, gaining clients, procuring insurance for those clients, corresponding with the Florida agents regarding their procurement efforts, and collecting over a half a million dollars in commissions. We therefore conclude that the trial court correctly determined that the appellants were conducting business in Florida. See Naviera Mayaca Express S. de R.I. *82 v. Brauer & Assoc., 559 So.2d 1230 (Fla. 3d DCA 1990) (defendant's acts of procuring insurance for vessel operating out of Florida port, corresponding with insured in connection with procurement of insurance, and servicing account constituted conducting business); Canron Corp. 444 So.2d at 529.
Appellants' next argument is that even if it was conducting business in the state, the cause of action in this case did not "arise from" that activity as required by the express statutory language of the long-arm statute. We find that argument unpersuasive. The term "arising from" is broad; it does not mean "proximately caused by," but only requires a "`direct affiliation,' `nexus,' or `substantial connection'" to exist between the basis for the cause of action and the business activity. Damoth v. Reinitz, 485 So.2d 881, 883 (Fla. 2d DCA 1986). The suit in this case stems from the loss suffered by the appellee as a result of representations made by the appellants to the policy holder in Florida. The appellants argue that, because they did not send a representative to Florida to solicit the particular policy at issue, there is no nexus between their solicitation activities and the cause of action in this case. We disagree. As the trial court found, the appellants had previously sent representatives to Florida to meet with Beale at least twice to solicit this very type of insurance business; their efforts evidently paid off. We are unwilling to say that there is no "direct affiliation," "nexus," or "substantial connection" between appellant's solicitation activities and the policy in the present case which occasioned the misrepresentations that resulted in the appellee's loss and this litigation.
We therefore conclude that the cause of action arose from the appellant's business activities in Florida, subjecting it to the personal jurisdiction of the Florida court. Cf. Classic Roadsters, Ltd. v. G.G.L. Ind., 544 So.2d 1111, 1112 (Fla. 3d DCA 1989) (subjecting defendant to personal jurisdiction would constitute a denial of due process where claim arose in another state and was "not even remotely related to any of its business activities in Florida").
We accordingly affirm the order under review and remand for further proceedings.
ZEHMER, C.J., and SHIVERS, Senior Judge, concur.
NOTES
[1] According to the complaint, Nelson Hurst Marine Limited is the successor-in-interest to Citicorp.
[2] Although appellee also pled jurisdiction under subsection (d), it did not argue the applicability of that subsection in the trial court. Appellee did not plead or argue jurisdiction under subsection (f).
[3] Section 48.193(1)(f)(1), Florida Statutes (1993), provides for personal jurisdiction where the defendant has "[c]aus[ed] injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury ... [t]he defendant was engaged in solicitation or services activities within this state."
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563 P.2d 1237 (1977)
29 Or.App. 429
STATE of Oregon, Appellant,
v.
Eddy Allen WALLACE, Respondent.
Court of Appeals of Oregon.
Argued and Submitted April 25, 1977.
Decided May 16, 1977.
*1238 Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before SCHWAB, C.J., and THORNTON and TANZER, JJ.
THORNTON, Judge.
The issue presented in this appeal is whether the trial court erred in allowing defendant's motion to suppress a quantity of hashish seized from the defendant's person at the time of his arrest.
The essential facts are as follows:
On the evening of September 28, 1976, the manager of a Eugene theater received a complaint from an unidentified patron that some young persons were smoking marihuana and drinking beer in the audience portion of the theater. The patron insisted that the manager call the police. After telephoning the police the manager went back to the lobby and was informed by the complaining patron that the individuals involved were in the theater's restroom. The manager waited for them and was talking with them when Officer Guy of the city police arrived. The manager told the officer that a patron had complained that the three young men, one of whom was later identified as the defendant, had been drinking beer and smoking inside the theater. The officer then started talking with the three suspects and asked them if they had any marihuana on them. The response from each of them was, "No."
As the officer talked to defendant he smelled a strong odor of burned marihuana, but could not determine whether it came from defendant particularly because the odor seemed to emanate from all three persons. The officer testified that he could see a "little lump" in the defendant's pocket and he asked defendant what was in the pocket. The defendant answered, "Nothing." The officer then reached into the pocket and extracted a small plastic bag which he believed to contain marihuana because of the type of package but which was ascertained later to be hashish. When the officer extracted the plastic bag, defendant pushed him backward and an altercation ensued which was not abated until a second officer arrived and helped subdue defendant. After defendant was booked a small quantity of marihuana was found on his person.
The state's evidence established that the arresting officer was trained and experienced in drug enforcement, including the recognition of the smell of burned marihuana.
The trial court suppressed the seized hashish because:
"6. The Court finds that the officer could have investigated further; he could have told * * * [defendant] to sit down and could have inquired further.
"7. Upon the facts available to the officer considering the time, the place and the information which he had, the acts of reaching into * * * [defendant's] *1239 pocket and of attempting to take and/or taking something out of that pocket were unreasonable and precipitous.
"8. The State of Oregon failed to produce evidence of the officer's probable cause to conduct a warrantless search in these circumstances."
We conclude that it was error to suppress the seized hashish and prohibit its introduction as evidence. In State v. Cross, 23 Or. App. 536, 543 P.2d 48 (1975), we indicated that when a police officer smells "what as an experienced police officer trained in its observation and detection he reasonably believed to be marihuana, we think the officer had probable cause to search." 23 Or. App. at 538, 543 P.2d at 49. Similarly in State v. Elliott, 10 Or. App. 191, 499 P.2d 342 (1972), we held that the distinctive odor of marihuana emanating from defendant coupled with corroborative circumstances establishes probable cause to search. See also, State v. Lafferty, 19 Or. App. 643, 528 P.2d 1096 (1974).
Defendant argues that the citizen's complaint in this case was hearsay and that the officer should have confirmed the report of marihuana smoking in the theater by defendant by questioning the complaining citizen. Defendant cites State v. Branch, 13 Or. App. 248, 508 P.2d 254 (1973), for the proposition that although hearsay may be used as a basis for probable cause, it is not a substitute where more direct evidence is available. Even if we agreed that the hearsay complaint in and of itself would not provide probable cause to search without further inquiry under circumstances, as here, indicating greater exigency than was present in Branch, the hearsay complaint in this case is sufficient as corroboration of a more decisive element of circumstance establishing probable cause to search: the marihuana odor.
Reversed and remanded.
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: German Perez-Vasquez v. The State of Texas
Appellate case number: 01-15-00882-CR
Trial court case number: 13CR0953
Trial court: 405th District Court of Galveston County
Appellant’s appointed counsel, Kevin Bradley Stryker, has not filed a brief on appellant’s
behalf in the above-referenced appeal. Appellant’s brief was originally due on March 31, 2016.
On September 20, 2016, counsel’s fifth motion for extension of time to file the brief was granted,
and the brief was ordered filed by October 17, 2016. The order stated additional motions for
extension would not be granted. Counsel stated in this fifth motion that had done extensive work
and did not anticipate needing any further extension. Nevertheless, on October 17, 2016, counsel
requested a sixth extension.
On October 25, 2016, the sixth motion to extend was denied, and counsel was ordered to
file the brief on or before November 14, 2016. The order stated that if the brief was not filed, a
hearing in the trial court would be ordered. No brief has been filed.
Appellant’s counsel has seriously delayed the resolution of this appeal. Appellant’s brief
is more than 240 days overdue.
Pursuant to Rule 38.8, we abate this appeal and remand the case to the trial court for a
hearing. See TEX. R. APP. P. 38.8(b)(2)–(3). We direct the trial court to conduct a hearing at
which a representative of the Harris County District Attorney’s Office, appointed counsel
Stryker, and appellant shall be present.* The trial court shall have a court reporter record the
hearing. The trial court is directed to make appropriate findings on these issues:
(1) whether appellant wishes to prosecute this appeal; and, if so,
* If appellant is incarcerated, at the trial court’s discretion, appellant may participate in the
hearing by closed-circuit video teleconferencing. Any such teleconference must use a
closed-circuit video teleconferencing system that provides for a simultaneous compressed
full motion video and interactive communication of image and sound between the trial
court, appellant, and any attorneys representing the State or appellant. On request of
appellant, appellant and his counsel shall be able to communicate privately without being
recorded or heard by the trial court or the attorney representing the State.
(2) whether appointed counsel Stryker has abandoned the appeal by failing to timely
file briefs on appellant’s behalf;
(3) and, if so, whether appellant is presently
(a) indigent, in which case the trial court should appoint new appellate counsel at no
expense to appellant and establish a date by which counsel will file a brief, no
later than 30 days from the appointment; or
(b) not indigent, in which case the trial court should establish a date by which
appellant shall retain new counsel;
(4) or, if appointed counsel Stryker has not abandoned the appeal, make appropriate
findings and recommendations regarding the reason that counsel has failed to file a
brief for more than 240 days and establish a date certain by which counsel will file
appellant’s brief, no later than 20 days from the date of the hearing.
TEX. CODE CRIM. PROC. arts. 1.051(d), 26.04; TEX. R. APP. P. 38.8(b)(2), (3), (4).
The trial court shall cause a supplemental clerk’s record containing its findings and
recommendations, including the name, address, telephone number, and State Bar number of any
substitute counsel, and the reporter’s record of the hearing to be filed in this Court no later than
December 29, 2016. If the hearing is conducted by video teleconference, a certified video
recording of the hearing shall be filed in this Court no later than December 29, 2016.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when a supplemental clerk’s
record that complies with this order, and the reporter’s record of the hearing, have been filed in
this Court. The trial court coordinator shall set a hearing date and notify the parties and the Clerk
of this Court of such date.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Acting individually
Date: December 13, 2016
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255 F.3d 1238 (10th Cir. 2001)
CYNTHIA TURNBULL, Plaintiff-Appellant,v.TOPEKA STATE HOSPITAL and THE STATE OF KANSAS, Defendants-Appellees.
No. 00-3086
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 6, 2001
Appeal from the United States District Court for the District of Kansas (D.C. No. 98-CV-2222-GTV) [Copyrighted Material Omitted]
Paul F. Pautler, Jr., of Blackwell Sanders Peper Martin LLP, Kansas City, Missouri, for Plaintiff-Appellant.
Deborah June Purce, Topeka, Kansas (Alan D. Hughes, Legal Division, Department of Social and Rehabilitation Services, Topeka, Kansas, with her on the brief), for Defendants-Appellees.
Before TACHA, Chief Judge, SEYMOUR and BRORBY,Circuit Judges.
SEYMOUR, Circuit Judge.
1
Plaintiff/Appellant Cynthia Turnbull, a psychologist at the Topeka State Hospital (TSH) in Kansas, sued her employer and the state for sexual harassment after she was sexually assaulted by a patient. The jury found a sexually hostile work environment existed at TSH, but it split over whether TSH should be held legally responsible for that environment. After learning of the jury's inability to decide, the district court granted an earlier defense motion for judgment as a matter of law. The sole issue on appeal is whether that ruling was proper. We hold that it was not, and remand the case for further proceedings.
2
* We review de novo a grant of judgment as a matter of law. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001). Rule 50 of the Federal Rules of Civil Procedure authorizes a trial judge to grant judgment as a matter of law "if, after a party has been fully heard on an issue, there is no legally sufficient evidentiary basis for a reasonable jury to find for the party . . . ." Id. Because a court does not lightly presume the decision of a reasonable juror, judgment "may be granted only if the evidence points but one way and is susceptible to no reasonable inference which may support the opposing party's position." Id. (internal quotations omitted). Thus, when a defendant seeks judgment as a matter of law, the controlling question is whether the plaintiff has arguably proven a legally sufficient claim.
3
In making that determination, "[w]e do not weigh the evidence, pass on the credibility of the witnesses, or substitute our conclusions for that of the jury." Pizza Hut v. Lockard, 162 F.3d 1062, 1068 (10th Cir. 1998) (quotations and citations omitted). Instead, we view "the facts and all reasonable inferences from them . . . in the light most favorable to the appellant." Phillips, 244 F.3d at 796. Accordingly, although the parties set forth varying versions of the underlying facts, we consider those facts in the light most favorable to Dr. Turnbull.
II
4
Topeka State Hospital was a state-run inpatient mental health center1 which treated patients with severe mental illnesses for whom outpatient treatment options had failed. TSH was not a jail. Patients were treated in the least restrictive environment possible, although all patients had been admitted because they posed some danger to themselves or others. While the hospital had an obligation to admit anyone referred there, unusually violent offenders could be transferred to more secure facilities.
5
Cynthia Turnbull, a Ph.D. psychologist, came to TSH in 1993. She was hired to start a group therapy program for the adolescent treatment unit and to conduct individual and group therapy with adolescent male inpatients. One treatment issue that arose regularly was the "sexual acting out" displayed by many of the patients. TSH staff were aware this posed potential dangers, dangers that were tragically highlighted when a female employee was murdered by a patient in 1992. Dr. Turnbull recognized the risks of her job, and the hospital required that she regularly review and sign a job description that included mention of the risk of assault by patients. The hospital's general approach toward sexual acting out by patients, however, was that it was a clinical issue to be addressed in the patient's treatment program. The sexual harassment training that was required for each new staff member made no mention of how to respond to sexual harassment by patients.
6
Chronic understaffing at the hospital meant female staff often felt unsafe. While the hospital had several policies directed at the safety of staff members, Dr. Turnbull and others complained these measures were not always effective. For example, TSH staff received training in managing assertive or unruly patients, but the training focused on appropriate ways to calm the patient rather than self-defense to protect the staff member. Although psychologists could request extra staff to attend a group therapy session or other treatment, the shortage of staff meant those requests were rarely met. The hospital purchased personal alarms known as "screechers" after the 1992 murder, but they had fallen out of use by the time Dr. Turnbull started work and she was never told of their availability. Dr. Turnbull testified about her safety concerns before an Executive Committee meeting in 1995, but she alleges the meeting minutes were later "sanitized" to remove all mention of her concerns. The Executive Committee did note in 1996 that another group of staff was expressing a "reality based fear" of conditions on the ward.
7
Other than her testimony to the Executive Committee, Dr. Turnbull made no formal reports of her safety concerns. She describes several conversations about safety with her supervisors in the psychology department. Both warned her not to send memoranda or file incident reports because her career would be hurt if the administration began to view her as a troublemaker.
8
The safety concerns were exacerbated for the psychologists because of a lack of adequate treatment facilities on the adolescent unit. There were no treatment rooms within that unit, and the one treatment room with a one-way mirror for visual monitoring was on an isolated floor in a separate building. During renovations on the adolescent unit, Dr. Turnbull requested that the hospital construct a treatment room with a large window in order to provide a safe place to conduct therapy, but no such room was provided. Dr. Turnbull met with female patients and smaller male patients in her office, but she was uncomfortable meeting with larger males in the small, enclosed space. The only other options within the unit were public spaces that provided little protection for confidential conversation, and tiny seclusion rooms whose only furniture was a mattress on the floor. In pleasant weather, Dr. Turnbull and the other psychologists frequently solved the space dilemma by walking with patients around the hospital grounds as they spoke.
9
A patient named James Stout came into this environment in June 1996. Mr. Stout had sexually assaulted two female staff members at another state hospital prior to his transfer, but that fact was not communicated to TSH. His diagnosis on admission was "oppositional defiant disorder," a relatively mild diagnosis for a psychiatric inpatient but one characterized by a tendency toward aggression and difficulty submitting to authority. Dr. Turnbull performed his intake evaluation and noted he had trouble respecting personal boundaries when agitated. Although she did not believe his reports of past rapes and of voices telling him to "kiss" and "feel" somebody, she noted in his file that staff should not meet him alone in small, enclosed areas.
10
Despite these early warnings and one period when Mr. Stout was restrained for aggression, his therapy proceeded well, and by August he was allowed the privilege of field trips off the hospital grounds. He had several therapy sessions with Dr. Turnbull and was never sexually inappropriate toward her. On August 26, the weather was fine and many people were outside enjoying the day, so they headed outside to walk the grounds during their therapy session. When they reached a slightly secluded area, he suddenly attacked. He knocked her to the ground, undressed her and digitally penetrated her, bit and choked her, and repeatedly threatened to kill her. Dr. Turnbull suffered post-traumatic stress disorder after the assault and never returned to the hospital.
11
In addition to filing criminal charges against James Stout, Dr. Turnbull sued TSH and the State of Kansas under Title VII for allowing a sexually hostile work environment to exist at the hospital. At trial, the jury heard almost seven days of evidence. TSH made a Rule 50 motion for judgment as a matter of law at the close of plaintiff's evidence and again at the close of its own, arguing Dr. Turnbull had not proven a legally sufficient hostile work environment claim. The court took each motion under advisement, and the jury began its deliberations.
12
The jury was asked to determine two issues: whether a sexually hostile work environment existed at TSH and, if so, whether the hospital or state should be held legally responsible. After two half-days of deliberation, the jury reported it was unable to reach a unanimous decision on the second question and felt further deliberation would be fruitless. The court revisited defendants' Rule 50 motions at that time, holding without discussion that the evidence had not shown a cognizable claim of gender based sexual harassment and dismissing the case.
III
13
"Sexual harassment is actionable under a hostile work environment theory when the harassing conduct is 'sufficiently severe or pervasive to alter the conditions [of the victim's] employment and create an abusive working environment.'" Lockard, 162 F.3d at 1071, quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). There is no "mathematically precise test" for determining whether the conduct is sufficiently severe or pervasive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Some factors to be weighed include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. Because frequency is merely one factor in the analysis, an isolated incident may suffice if the conduct is severe and threatening. See, e.g., Lockard, 162 F.3d at 1072 (allowing claim based on single incident); Smith v. NW Fin. Acceptance Corp., 129 F.3d 1408, 1413 (conduct must be "sufficiently pervasive or sufficiently severe"). The harassing conduct must be "both objectively and subjectively abusive." Lockard, 162 F.3d at 1071.
14
Here, the jury found Dr. Turnbull was subjected to a sexually hostile work environment. See R. at 1458. We easily conclude that determination was not unreasonable. While there was only one incident,2 it was objectively abusive, dangerous, and humiliating, and Dr. Turnbull was so traumatized she was unable to return to work thereafter. TSH argues any dangers inherent in the hospital environment could not constitute sexual harassment because the male staff members were also subject to sexual comments or physical attack by patients. However, conduct that affects both sexes may constitute sexual harassment if it disproportionately affects female staff. See Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997) (assaults on female staff sexual harassment even though patient also assaulted male staff member). The male staff of TSH were not subject to the fear or the reality of sexual assault in the same manner as the female staff. We turn, therefore, to the more difficult question of whether TSH should be legally liable for the harassment.
15
We have held that an employer may be responsible for sexual harassment based upon the acts of nonemployees. Lockard, 162 F.3d at 1073 (restaurant responsible for acts of customers); see also Crist, 122 F.3d at 1108 (group home liable for acts of mentally incapacitated resident); 29 C.F.R. 1604.11(e) (employer may be responsible for acts of non-employee where employer "knows or should have known of the conduct and fails to take immediate and appropriate corrective action"). To protect against imposing strict liability upon employers, we apply a negligence analysis, asking whether the organization "fail[ed] to remedy or prevent a hostile or offensive work environment of which management- level employees knew, or in the exercise of reasonable care should have known." Lockard, 162 F.3d at 1074, citing Hirschfeld v New Mexico Corrections Dept., 916 F.2d 572, 577 (10th Cir. 1990); 29 C.F.R. 1604.11(e) (employer liable if "fails to take immediate and appropriate corrective action"). The focus is not on the conduct itself but on the employer's behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large. Crist, 122 F.3d at 1110-12.
16
The negligence analysis can be divided into two separate inquiries, looking "first, into the employer's actual or constructive knowledge of harassment, and second, into the adequacy of the employer's remedial and preventative responses." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998). With regard to knowledge, a plaintiff may prove actual knowledge based on her reports of harassment to management-level employees or constructive knowledge based on the pervasiveness of the sexual hostility within the working environment. Id. While Dr. Turnbull made no complaints about James Stout in particular prior to the attack, she spoke about general safety concerns with her supervisors on multiple occasions, even bringing those concerns to the hospital's Executive Committee. Trial testimony established that the atmosphere of sexual hostility at the hospital was pervasive. Indeed, part of TSH's defense is that the dangers were so obvious that employees knowingly assumed those risks through their continued employment. A reasonable juror could conclude that TSH had either actual or constructive knowledge of the risk of sexual assault by patients.
17
The final question, whether TSH responded appropriately to the known dangers on the adolescent unit, is the real crux of this case. We have established no bright-line rule for measuring the "appropriateness" of an employer's response, asking instead whether the response was reasonable under the circumstances. Id. at 675-76. Key factors in that determination are the promptness and effectiveness of any action. Id. at 676. It is not always possible for an employer to completely eliminate offensive behavior, and thus the effectiveness inquiry looks not to whether offensive behavior actually ceased but to whether the "remedial and preventative action was reasonably calculated to end the harassment." Id. We also consider "the appellants' expectations given their choice of employment." Crist, 122 F.3d at 1111. In an environment like TSH it would be impossible to eliminate all potential risk; instead, we ask whether the hospital took reasonable measures to alleviate known or obvious risks.
18
TSH contends that "[i]n an environment like TSH, where the patients were . . . a danger to themselves or others, employees like plaintiff inherently assume the risk of facing sexually hostile, aggressive patients." Aplee. Br. at 50. In support of this theory, it cites cases which held prisons were not liable for sexual harassment or sexual assaults by an inmate. See, e.g., Powell v. Morris, 37 F.Supp.2d 1011 (S.D. Ohio 1999); Hicks v. Alabama, 45 F.Supp.2d 921 (S.D. Ala. 1998). This argument overlooks the continued emphasis on the employer's preventive measures, however. As explained in one case, "Courts have repeatedly declined to impose sexual harassment liability upon correctional institutions for the sexually offensive conduct of inmates, as long as the defendant institution took proper preventative and remedial steps with regard to inmate behavior." Powell, 37 F.Supp.2d at 1017 (emphasis added); see also Hicks, 45 F.Supp.2d at 933 (prison not liable where plaintiffs could identify no extra measures that could have prevented incident). Even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.
19
It is undisputed that TSH took some measures to ensure the safety of its staff. Nevertheless, Dr. Turnbull contends the hospital could have, and should have, done much more. More staff would have made the wards safer, as would treatment rooms in visible areas. The hospital could have provided self-defense training and better informed staff how to respond if sexually harassed by a patient. Although screechers were technically available, TSH could have ensured they were given to each staff member and kept in working order. Because the jury was divided on the issue of TSH's liability, we can deduce that one or more jurors believed the hospital's preventative measures were inadequate. We can not say that determination would be unreasonable as a matter of law on this record. Applying all reasonable inferences in favor of Dr. Turnbull, we conclude she presented sufficient evidence to support a claim of sexually hostile work environment against TSH. Accordingly, we hold that the grant of judgment for TSH as a matter of law was improper.
20
We REVERSE the district court's judgment in favor of TSH and REMAND for a new trial.
NOTES:
1
The hospital closed in 1997.
2
Title VII provides that an employee must file a complaint with the Equal Employment Opportunity Commission within three hundred days of the acts about which she complains. See 42 U.S.C. 2000e-5(e). Counting back three hundred days from the date Dr. Turnbull filed her complaint yields a date of July 19, 1996, approximately five weeks before her attack. Accordingly, TSH argues any events that took place before that date are time barred and must not be considered. In response, Dr. Turnbull argues the environment that existed throughout her employment constituted continuing sexual harassment and should be considered as a whole. See Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1414-16 (10th Cir. 1993) (discussing continuing course of conduct for sexual harassment under Title VII).
It is undisputed that the attack itself took place within the statutory time period. Because the attack itself is sufficient to support a claim for sexual harassment and Dr. Turnbull does not specify other incidents as bases for her claim, we treat the attack as a single incident of harassment. However, we examine other events in the record to determine the general environment at the hospital, whether TSH was on notice of employee sexual harassment concerns, and whether the hospital took reasonable measures to ensure the safety of its employees.
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579 N.E.2d 1248 (1991)
219 Ill. App.3d 979
162 Ill.Dec. 434
Stan KNECHT, Plaintiff-Appellee,
v.
RADIAC ABRASIVES, INC., Defendant-Appellant.
No. 5-90-0468.
Appellate Court of Illinois, Fifth District.
October 7, 1991.
*1249 Robert H. Bernstein, Grotta, Glassman & Hoffman, P.A., Roseland, N.J., Mary Bassett-Stanford, Salem, for defendant-appellant.
Jack Johnston, Burnside, Dees, Johnston & Choisser, Vandalia, for plaintiff-appellee.
Justice HOWERTON delivered the opinion of the court:
Plaintiff sued defendant, claiming that defendant discharged him in violation of the Workers' Compensation Act (Ill.Rev. Stat. 1987, ch. 48, par. 138.4(h)), which states:
"It shall be unlawful for any employer * * * to discharge * * * or refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act."
A Marion County jury found for plaintiff and awarded him $94,050 compensatory damages and $205,950 punitive damages. Defendant appealed. We affirm the judgment awarding compensatory damages but reverse the judgment awarding punitive damages and remand for a new trial.
Defendant contends that the circuit court erred in refusing to enter either a judgment notwithstanding the verdict, a new trial, or remittitur. Defendant argues that: (1) plaintiff had no claim under the Illinois Workers' Compensation Act (Ill.Rev.Stat. 1987, ch. 48, par. 138.4(h)), because plaintiff could no longer perform his job; (2) the jury's verdict was against the manifest weight of the evidence; (3) the circuit court erred in instructing the jury on punitive damages; (4) the circuit court erred by refusing to admit defendant's list of favorably resolved workers' compensation claims into evidence; (5) the circuit court erred by refusing to permit one of defendant's witnesses to testify how defendant's personnel director handled previous work-place disputes; and (6) the circuit court abused its discretion in imposing sanctions pursuant to Supreme Court Rule 219. 134 Ill.2d R. 219.
I.
We address first the circuit court's refusal to enter judgment notwithstanding the verdict or to grant a new trial.
A circuit court should enter judgment notwithstanding the verdict when "all of the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513.
A circuit court should grant a new trial when the jury's verdict is against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill.2d 303, 1 Ill.Dec. 32, 356 N.E.2d 32), i.e., when an opposite conclusion is clearly evident, or the jury's findings are unreasonable, arbitrary, and not based upon the evidence. (Marin v. American Meat Packing Co. (1990), 204 Ill.App.3d 302, 149 Ill.Dec. 818, 562 N.E.2d 282.) We examine the evidence to determine if the circuit court erred.
*1250 Undisputed Facts
Plaintiff was severely shocked when he touched the switch on a mixing machine at defendant's plant. His supervisor sent him to the hospital where he was treated and released. After his release, however, plaintiff's hands swelled and ached, and by the following Monday, plaintiff reported to defendant that he was unable to work. Defendant's personnel director referred plaintiff to the company doctor, who in turn, referred him to a hand specialist, who diagnosed carpal tunnel syndrome in both hands and bilateral compression of the medial and ulnar nerves of the wrists. The specialist recommended surgery and later operated on plaintiff's hands and wrists. Plaintiff began to heal, and the specialist gave him a return-to-work slip which stated:
"(1) No heavy lifting over 10 pounds (2) no heavy pulling and pushing for 2 weeks."
Disputed Facts
Plaintiff testified that when he gave the personnel director the return-to-work slip, the director accused him of being "in cahoots" with the doctor to get a big settlement from the company, ushered him to the door, and told him not to return.
The director contradicted plaintiff, testifying that when plaintiff gave him the return-to-work slip, he told plaintiff he needed to call the insurance company to find out what to do since the return-to-work slip contained limitations, but when he called, the insurance company told him that it had found plaintiff another job.
A nurse testified, however, that the director also told her that he believed plaintiff suffered no real injury or was exaggerating his injury to get a big settlement. Also, a former co-worker of plaintiff testified that plaintiff could have returned to his old department despite his physical limitations.
This review of the evidence is by no means exhaustive, but it is indicative of the nearly evenly balanced factual disputes found throughout the record.
Defendant claims it is entitled to judgment notwithstanding the verdict because as a matter of law it is not guilty of retaliatory discharge or failure to reinstate under the Act, because plaintiff was physically unable to do his old job. The record, however, does not overwhelmingly support defendant's position, but merely shows that there was a question for the jury to resolve. On this record, a jury could infer, for example, that since the return-to-work slip placed limitations upon plaintiff for only two weeks, plaintiff could have performed his old job after two weeks, but did not return because he legitimately believed that the personnel director discharged him when he ushered him to the door and told him not to return, accusing him of being "in cahoots" with his doctor. The evidence, together with all reasonable inferences, supports the jury's verdict.
We, likewise, find that the verdict is supported by the manifest weight of the evidence.
II.
We next address defendant's claim that the circuit court erred in instructing the jury on punitive damages.
The issue presented by this case is whether a jury which finds for plaintiff in a retaliatory discharge case has the discretion to decide whether to award punitive damages. The circuit court ruled that the jury had no discretion and so instructed the jury:
"If you find for the Plaintiff on the question of liability, then you must, in addition to any damages for past and future wages lost to which you find plaintiff entitled, fix an amount which will serve to punish the defendant and to deter it and others from the commission of like offenses."
We reverse the circuit court and hold that a jury may find for a plaintiff in a retaliatory discharge case, award compensatory damages, but refuse to award punitive damages. Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353.
*1251 Relying on the court's language in Kelsay, plaintiff argues that if the trial judge decides that the facts warrant the imposition of punitive damages, then the jury must impose an amount that will punish defendant and deter others from similar offenses. (See Kelsay, 74 Ill.2d at 186, 23 Ill.Dec. at 565, 384 N.E.2d at 359.) Plaintiff, however, misconstrues the supreme court's language. Procedurally, a punitive damages case is like a compensatory damages case. A court decides whether the evidence makes a prima facie case for punitive damages; a jury decides whether to award punitive damages, and if so, in what amount. Neither Kelsay nor any case relying on Kelsay says that if a court finds that a prima facie case has been made, then a jury must impose punitive damages.
Plaintiff argues that giving a jury the freedom to refuse to impose punitive damages renders the concept of punitive damages useless. We disagree. Punitive damages are imposed to punish the offender and to deter others from committing like offenses in the future. (Kelsay, 74 Ill.2d at 186, 23 Ill.Dec. at 565, 384 N.E.2d at 359.) Americans, however, have a longstanding tradition: the power to punish carries with it the power to be lenient. The jury, with its unique ability to articulate community values, should decide whether punitive damages should be imposed.
The instruction, therefore, was erroneous, and we reverse and remand to the circuit court for a new trial on punitive damages.
III.
Defendant claims that the jury's award of compensatory damages was excessive. We disagree. The amount of damages awarded is generally within the sound discretion of the jury. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill.2d 401, 92 Ill.Dec. 449, 485 N.E.2d 4.) Nevertheless, a reviewing court may order a new trial on damages if it finds that the jury's award bears no reasonable relation to plaintiff's loss. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill.App.3d 808, 130 Ill.Dec. 879, 537 N.E.2d 1348.) Here, we find sufficient evidence in the record to support the jury's award. Plaintiff presented evidence showing the loss of wages suffered as a result of the discharge, and the jury was charged to fix an amount that would fairly and adequately compensate plaintiff, taking into account that the amount awarded should be the present cash value of his future loss. We find, therefore, that the amount of the award is proper, and we affirm the judgment awarding compensatory damages.
IV.
Next, we address an evidentiary issue. The circuit court refused to allow defendant's witness to testify how its personnel director had handled previous workplace disputes and also refused to allow into evidence a list of previously filed and favorably resolved workers' compensation claims. We examine the proffered evidence.
Defendant called defendant's shop steward and asked him if he had always found the personnel director to have been helpful and fair when dealing with workplace disputes. Plaintiff objected, and the circuit court heard counsel at side bar. Defendant's counsel argued:
DEFENDANT'S COUNSEL: "Your honor, * * *, [t]his man is a chief shop steward who has held that position for fifteen years and had occasion to deal with [the director] twenty-five times a year in efforts to resolve complaints. I'm now asking him if [the director] has * * * ever been unfair * * *."
THE COURT: "Are you saying that you are going to attempt to prove that he was fair in his dealings with Mr. Knecht by saying that the shop steward knew of no time when he was unfair with anyone else.?"
DEFENDANT'S COUNSEL: "Yes."
THE COURT: "I'm not going to allow that."
During a recess that followed, defendant's counsel told the court that he intended to introduce a series of documents dealing *1252 with other workers' compensation claims since 1985, the purpose of which was to "show that Radiac does not mistreat or refuse to employ workers' compensation claimants * * *." Plaintiff's counsel objected, and the circuit court refused the offer reasoning that it was no more relevant than the shop steward's testimony.
The circuit court's ruling was proper for three reasons.
A.
First, the evidence from the shop steward was lay opinion evidence. The thrust of the questioning was to establish that the shop steward had the opinion that the personnel director had been fair in dealing with past workplace disputes. As a general rule, "[t]he closer the subject of the [lay] opinion approaches critical issues, the more likely it is that the court will require more concrete details from the witness, either alone or prior to the offering of an opinion * * *." (Cleary & Graham, Handbook of Illinois Evidence § 701.1 (5th ed. 1990).) In the case at bar, the issue was whether defendant had retaliated against plaintiff. The opinion called for was one of "fairness," a matter closely approaching the critical issue. Therefore, although "the distinction between fact and opinion is so frequently impossible to delineate * * * [much is left] to the discretion of the trial court." (Cleary & Graham, Handbook of Illinois Evidence § 701.1 (5th ed. 1990).) On this record, we see no reason to reverse this discretionary ruling. Furthermore, this evidence was proffered, in effect, to prove the character of the defendant, namely that defendant had the character trait of treating its employees "fairly." Illinois allows character to be proved only by evidence of reputation and never by opinion. See Cleary & Graham, Handbook of Illinois Evidence §§ 405, 405.2 (5th ed. 1990).
B.
Second, evidence is relevant when it has a tendency to prove a fact in controversy or render a matter in issue more or less probable. (Marut v. Costello (1965), 34 Ill.2d 125, 214 N.E.2d 768; Dayan v. McDonald's Corp. (1984), 125 Ill. App.3d 972, 81 Ill.Dec. 156, 466 N.E.2d 958; Mueller v. Yellow Cab Co. (1982), 110 Ill. App.3d 504, 66 Ill.Dec. 169, 442 N.E.2d 595.) The shop steward's opinion that defendant was "fair" in the past has no real tendency to make it more or less probable that defendant was being "fair" in the instance being tried. It, therefore, was irrelevant.
Evidence of conduct of a person on another occasion is not relevant on the question of his conduct on the occasion in issue unless offered to show habit, state of mind, knowledge, or intent. (Dillon v. U.S. Steel Corp. (1987), 159 Ill.App.3d 186, 111 Ill.Dec. 54, 511 N.E.2d 1349.) Although Dillon includes in its rubric both state of mind and intent, the validity of that inclusion is viewed with some dubiety, because it is generally noted that while evidence of state of mind and intent is admissible in criminal cases, that rationale does not generally support admission of such evidence in civil cases. (See, e.g., Crawford v. Yellow Cab Co. (N.D.Ill.1983), 572 F.Supp. 1205.) To further focus on the Dillon formulation, it is likewise clear in this case that the excluded evidence was not offered to prove that defendant had knowledge of some condition, e.g., that its product was defective. The only relevance, therefore, was to establish either defendant's habit or routine business practice of not mistreating or refusing to employ workers' compensation claimants. To whatever extent Illinois courts have indicated willingness to follow Federal Rule of Evidence 406 (see Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill.App.3d 19, 91 Ill.Dec. 806, 484 N.E.2d 365, aff'd (1987), Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill.2d 471, 106 Ill.Dec. 25, 505 N.E.2d 331); Cleary & Graham, Handbook of Illinois Evidence § 406.1 (5th ed. 1990), the fact is that the evidence refused in the case at bar is not proper evidence of habit or routine practice.
1. Habit
Insofar as habit is concerned, the evidence must establish conduct that becomes *1253 semiautomatic, invariably regular, not merely a tendency to act in a given manner. (Cleary & Graham, Handbook of Illinois Evidence § 406.1 (5th ed. 1990); Simplex, Inc. v. Diversified Energy Systems, Inc. (7th Cir.1988), 847 F.2d 1290.) In the case at bar, there is a threefold barrier to the admission of this evidence to establish habit.
a.
First, in general, it should be noted that a semiautomatic, invariably regular act is one in which discretionthat is, the studied reflection and choosing between options, however fleeting, present in the decision making processhas been removed. The conduct that constitutes habit, therefore, takes on characteristics of a ministerial rather than a discretionary act. In the case at bar, neither the proof of "fairness" to employees, nor the admission of documents dealing with other workers' compensation claims proves a semiautomatic, invariably regular response. Each decision to pay workers' compensation and to retain those who have received workers' compensation necessarily is a discretionary act, not semiautomatic and invariably regular. To hold otherwise might or could effectively kill suits brought to end discrimination in the workplace: the employer might escape, proving it did not discriminate by proving it had not in the past. Defendant's argument, therefore, makes bad policy and is rejected.
b.
Secondly, there is another barrier to the reception of this evidence. It is true that some habit testimony has been accepted even though the so-called "habit" contains an element of discretion. Examples are: lending money without taking a note in return (Stolp v. Blair (1873), 68 Ill. 541); promptness in paying debts (Thorp v. Goewey (1877), 85 Ill. 611); party affiliation to show how a person voted (Sorenson v. Sorenson (1901), 189 Ill. 179, 59 N.E. 555); and consulting a banker or lawyer as bearing on execution of a note (Wolf v. People's Bank (1929), 255 Ill.App. 127). In these cases, however, the admission of habit evidence was justified on grounds that there was a strong necessity for its reception. (See Cleary & Graham, Handbook of Illinois Evidence § 4.06.3 (5th ed. 1990); see also Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill.2d 471, 106 Ill.Dec. 25, 505 N.E.2d 331.) There has been no strong showing of necessity for the admission of this evidence in the case at bar. Furthermore, "given the age of the Stolp, Thorp, Sorenson and Wolf cases and the emphasis upon the hardship aspect as a justification for the use of habit testimony * * * it is certainly doubtful whether habit evidence can generally be said to be admissible for the purpose of inviting the inference that the person (or corporation) probably acted consistently with `habit'." Cleary & Graham, Handbook of Illinois Evidence, § 406.3 (5th ed. 1990).
c.
Thirdly, as to admissibility of this evidence to establish habit, there was an insufficient foundation for its admission. The other instances proffered by defendant were not sufficiently detailed and specific so that, when compared to the case at bar, the court could rule that the situations were so similar that the inference that defendant did no wrong in this case, because it had done no wrong in the others, was reliable and not mere speculation or conjecture. See Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill.2d 471, 480, 106 Ill.Dec. 25, 30, 505 N.E.2d 331, 336 (Ryan, J., dissenting).
2. Routine Practice
The routine practice of an organization differs conceptually from habit. That difference, in at least one small way, finds its way into the liturgy of foundation. Whereas habit, if otherwise admissible, does not depend on corroboration, routine practice does; without some corroborating proof that the routine business practice was followed on the occasion in question, evidence of an existing routine cannot be admitted. (See Cleary & Graham, Handbook of Illinois Evidence §§ 406.3, 406.4 (5th ed. 1990) (in which it is argued that corroboration should be discarded with as a condition of admissibility.)) The evidence proffered in the case at bar is not evidence of a routine *1254 practice. The types of conduct qualifying for admission as a routine business practice are ministerial acts: mailing, filing, sending notice, and the like. (See Cleary & Graham, Handbook of Illinois Evidence § 406.4 (5th ed. 1990).) In the case at bar, the evidence refused was opinion testimony that defendant treated its employees fairly and does not mistreat or refuse to employ workers' compensation claimants. These are not ministerial acts; they are not routine business practice; they are discretionary.
The circuit court correctly refused this evidence for all these reasons.
V.
Lastly, we address defendant's claim that the circuit court erred in imposing sanctions pursuant to Supreme Court Rule 219. (134 Ill.2d R. 219.) Rule 219 permits the circuit court to sanction a party or her attorney for abuse of discovery rules. This court's review of the imposition of such a sanction is limited to whether the circuit court abused its discretion. (Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill.App.3d 63, 34 Ill.Dec. 589, 398 N.E.2d 264.) Plaintiff served a request to produce financial data of defendant on February 6, 1990. Defendant never complied, and when challenged, defendant's counsel claimed the request to produce was never received. Plaintiff's counsel then told defense counsel what was requested, but defense counsel argued it was not discoverable. The circuit court ordered defendant to comply within seven days. On May 4, 1990, plaintiff received an unauthenticated document showing defendant had a negative net worth. The document, which purported to be a response to plaintiff's request to produce, was a summary of information taken from defendant's financial statement. Plaintiff asked for a continuance for lack of compliance. The court granted it saying that defendant's response was "nothing" and ordered defendant's comptroller to be in court the following Monday to disclose the financial data requested. At the hearing the following Monday, the comptroller testified about the financial data of only the plant where plaintiff worked and not the corporation as a whole. The court ordered data from the corporation's other plant as well. After much argument and delay, defendant finally disclosed an audited financial report of the corporation on Tuesday, May 8, 1990. Instead of a negative net worth, the corporation showed a net worth of over $7 million. The record clearly shows that defendant dragged its feet in responding to plaintiff's request to produce, and even when the circuit court ordered the information produced, defendant still did not fully comply, the result of which was a delay in the proceedings. We find no abuse of discretion and affirm the circuit court on Rule 219 sanctions.
The circuit court is affirmed in part and reversed in part, and this matter is remanded for a new trial on punitive damages.
Affirmed in part; reversed in part and remanded.
CHAPMAN, J., concurs.
Justice GOLDENHERSH, specially concurring:
I concur in the results reached by my colleagues but wish to make further comment in regard to section II dealing with instructing the jury on punitive damages.
Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, does not mandate a punitive damages instruction to the jury in every retaliatory discharge action. The clear import of Kelsay, however, is that without a punitive damages component in the retaliatory discharge cause of action, the action itself could very well become a tiger without teeth. Our supreme court in Kelsay stated the following:
"In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen's compensation claim. For example in this case, the plaintiff was entitled to only $749 compensatory damages. We noted above the very real possibility that some employers would risk the threat of criminal sanction *1255 in order to escape their responsibilities under the Act. The statute makes such conduct, as is involved in this case, a petty offense (Ill.Rev.Stat.1975, ch. 48, par. 138.26), which is punishable by a fine not to exceed $500 (Ill.Rev.Stat.1975, ch. 38, par. 1005-9-1(4)). The imposition on the employer of the small additional obligation to pay a wrongfully discharged employee compensation would do little to discourage the practice of retaliatory discharge, which mocks the public policy of this State as announced in the Workmen's Compensation Act [Ill. Rev.Stat.1973, ch. 48, par. 138.1 et seq.]. In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen's compensation claims." (74 Ill.2d at 180-81, 23 Ill.Dec. at 565, 384 N.E.2d at 359.)
I interpret Kelsay, and especially the paragraph quoted above, as evidencing a strong policy statement made by our supreme court in favor of inclusion of punitive damages as part of the standard retaliatory discharge case. While neither Kelsay nor any subsequent authority cited to this court mandates charging the jury with a punitive damages instruction, I interpret the clear implication of Kelsay to be that the circuit and appellate courts and the courts of review should keep in mind that without a punitive damages component a retaliatory discharge cause of action would be an action without practical consequences or deterrence effect in regard to the practice of retaliatory discharge, which "mocks the public policy of this State * * *."
With these additional comments, I concur with my colleagues in the disposition of the issues noted in section II of the opinion and with the rest of this opinion.
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822 F.2d 818
UNITED STATES of America, Appellee,v.Frederick Gordon DODDINGTON, Appellant.
No. 86-5186.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 12, 1986.Decided July 8, 1987.
Barry V. Voss, Minneapolis, Minn., for appellant.
Joan M. Ericksen, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before McMILLIAN, BOWMAN, and MAGILL, Circuit Judges.
BOWMAN, Circuit Judge.
1
Frederick Gordon Doddington appeals from the District Court's entry of judgment and sentence following a jury verdict of guilty on one count of possessing and aiding and abetting the possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On appeal Doddington argues that (1) the District Court deprived him of his Fifth Amendment right to due process of law and his Sixth Amendment right to compulsory process when it refused to grant "judicial immunity" to a defense witness and thereafter instructed the jury to disregard completely the testimony of that witness after the witness persisted in invoking his Fifth Amendment privilege against self-incrimination and (2) the District Court abused its discretion when it admitted into evidence certain prosecution evidence for which the chain of custody had not sufficiently been established. We affirm.
I.
2
On July 25, 1985, Edina, Minnesota police officer Christopher Omodt observed a car with a license plate that appeared to have been altered. Omodt stopped the car and arrested the driver, Gary Mattson, after discovering that the vehicle registration and Mattson's driver's license had been revoked. While Mattson was being placed in the police car, Doddington (who was a passenger in the Mattson car) requested and received permission from Omodt to move the car out of the flow of traffic. Officer Omodt thereafter viewed Doddington making reaching motions toward the back seat and under the front seat. When Omodt went to investigate, Doddington approached him carrying two dark nylon bags. When Officer Omodt asked about the contents of the bags, Doddington held them behind his back in an apparent attempt to shield them from view and responded, "They're Gary's. He asked me to get them for him." Omodt demanded and received the two bags. As Omodt opened the first bag (Bag A, Government Exhibit (Ex.) 1-A), Doddington stated, "You can't look in the bags. They're out of the car." Officer Omodt proceeded to search the bag and discovered, inter alia, several yellow valium tablets and Doddington's driver's license. Doddington then was placed under arrest. A search of the second bag (Bag B, Ex. 2-A) disclosed approximately $10,000 in $20 and $100 bills, several packets of a white powder later determined to be methamphetamine, a contact lens case containing some valium tablets, a scale, a silver spoon, and two magazines with Doddington's name and address on the mailing label. After apprising Doddington of his Miranda rights, Officer Omodt asked him to whom the valium belonged. Doddington responded, "The valium is mine." He also stated that he was in the process of changing the $20 bills into $100 bills for an unidentified friend.
3
During a subsequent search incident to the arrest, Officer Robert Buie found a small pouch around Doddington's neck that contained a small plastic packet of white powder and $1030 in cash. After placing the white powder and money in plastic evidence envelopes, Officer Buie sealed the envelopes and inventoried the evidence. He then gave the evidence to a Sergeant Cane, who secured it in an evidence locker.
4
At trial Jack Raney, a forensic chemist for the Drug Enforcement Administration (DEA), testified that he analyzed the 110 grams of white powder found in Bag B (Ex. 2-D) and the 1.2 grams of white powder found in Doddington's neck pouch (Ex. 3-B) and determined that both substances were methamphetamine. Raney stated that Ex. 2-D was 27% pure and that Ex. 3-B was 25% pure, and opined that both exhibits could have come from the same source.
II.
A.
5
Doddington first asserts that the District Court's refusal to grant "judicial immunity" to Gary Mattson, an unindicted coconspirator who was called as a witness on behalf of the defense, deprived him of his Sixth Amendment right to compulsory process. Specifically, Doddington argues that the District Court's denial of judicial immunity to Mattson, whose testimony allegedly was consistent with Doddington's defense and would have exculpated Doddington and provided favorable inferences regarding ownership of the drugs found in Mattson's car, precluded him from presenting an effective defense at trial. Doddington also argues that the District Court's striking of Mattson's testimony in its entirety after Mattson persisted in asserting his Fifth Amendment privilege against self-incrimination (thus precluding cross examination by the government) denied him due process of law and was an abuse of discretion.
6
At trial, Gary Mattson was subpoenaed and called as a witness by the defense. He had not testified during the prosecution's case-in-chief. Prior to his testifying, the court asked Mattson whether he intended to invoke his Fifth Amendment right against self-incrimination. After conferring with an attorney, he agreed to testify. On direct examination by defense counsel, Mattson acknowledged that he was the owner of the car in which he and Doddington were riding when they were arrested. He testified that after his arrest he told Officer Omodt that the second nylon bag (Bag B, Ex. 2-A, which contained Ex. 2-D, the 110 grams of methamphetamine) belonged to him and that his Lark cigarettes (which he had requested immediately after his arrest) could be found in that bag. Mattson apparently was not shown or told of the contents of the bag before being asked by Omodt whether he owned it. Mattson testified that he had a prior drug conviction for possession of LSD and previously had "dropped speed" (methamphetamine). He was asked by defense counsel if the glasses he then was wearing were prescription glasses. Following his affirmative response, defense counsel asked whether he owned the contact lens case (Ex. 2-G) that was found in the second bag (Bag B, Ex. 2-A). Mattson immediately invoked his Fifth Amendment privilege. At a bench conference Mattson's attorney told the court that his client possibly would answer questions on other subjects, but not any questions regarding the contact lens case. The court stated, "The problem is that it puts the government in a very awkward position, because that jury could well infer that his taking the Fifth could involve his ownership and possession of the drugs that are [the] gravamen of this case." Trial Transcript (Tr.) 305. The court ruled that defense counsel's questioning could continue provided that no reference to the contact lens case be made. Mattson then was asked about several items found in the trunk of his car (some of which were illegal drugs and drug paraphernalia), and he again invoked his Fifth Amendment privilege.
7
During a short recess, Mattson's attorney informed the court and counsel that Mattson would assert his Fifth Amendment privilege against self-incrimination to all questions asked by either defense counsel or the government. The court then stated, "Under those circumstances, pursuant to U.S. versus Cardillo, 316 F.2d 606, [2nd Cir.1963], I will instruct the jury to completely disregard his testimony." Tr. 310-311. Defense counsel objected and argued that the court's ruling denied Doddington his "right to confront his accuser." Defense counsel then stated:
8
I think it's extremely important for the defense to be able to present a defense and get a fair trial. For that reason, I would ask this Court to require the government to grant Mr. Mattson immunity.... I don't have case law to indicate that this Court has the authority to order it, but I do think that in the interest of justice and so that this jury gets all [the] facts, the prosecutor is in a position to grant this witness immunity....
9
Tr. 312. The court stated that it did not have the authority and was not in a position to order the government to grant immunity to Mattson and denied defense counsel's request. Mattson then returned to the witness stand and invoked his Fifth Amendment right to three consecutive questions asked by defense counsel. Mattson invoked the privilege twice to three questions on cross examination by the government. The court then excused Mattson and instructed the jury to disregard his entire testimony since the government had no opportunity to cross examine him on any matters testified to on direct examination.
10
We can summarily reject Doddington's first point on appeal regarding the court's refusal to grant judicial immunity. It is clear from the trial transcript (the relevant portion of which was quoted above) that Doddington's defense counsel requested the court to order the government to grant statutory immunity to Mattson, and not judicial immunity as he now claims on appeal that he did.1 Thus, we will review only the District Court's ruling on the issue of statutory immunity under an abuse of discretion standard.
11
A procedure for the granting of use immunity with respect to potentially incriminating testimony is provided in 18 U.S.C. Secs. 6002 & 6003. This statute, however, is of no avail to Doddington. The Supreme Court has held that statutory immunity may be granted only at the request of the Attorney General or a designated officer of the Department of Justice. "No court has authority to immunize a witness." Pillsbury Co. v. Conboy, 459 U.S. 248, 261, 103 S.Ct. 608, 616, 74 L.Ed.2d 430 (1983); see also United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79 L.Ed.2d 552 (1984) ("We decline to extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the statute requires."). Thus, the District Court had no authority (as it correctly recognized) to order the government to grant statutory immunity to Mattson. The court's refusal to order the government to grant immunity did not amount to a denial of Doddington's Sixth Amendment right to compulsory process (or of his right to confront witnesses against him, as defense counsel suggested at trial, since Mattson was called as a defense witness and did not testify for the prosecution).
12
We also reject Doddington's argument that the District Court abused its discretion and denied him due process of law when it struck Mattson's testimony in its entirety after Mattson persisted in asserting his Fifth Amendment privilege against self-incrimination. We find the Second Circuit's reasoning in United States v. Frank, 520 F.2d 1287 (2d Cir.1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976), persuasive. In Frank a witness called to testify by a codefendant perjured himself on direct examination. The perjured testimony was favorable to the defendant Frank. On cross examination, the witness was confronted with evidence that contradicted what he had testified to on direct. The witness thereafter asserted his Fifth Amendment privilege and refused to answer questions on cross examination. The trial court struck all of the witness' testimony that would have been favorable to the defendant. The Second Circuit affirmed, stating that the witness' refusal to answer proper, relevant questions on cross examination "going directly to the heart of his testimony on direct examination" caused his direct testimony to become hearsay since it was not subject to cross examination. Thus, the trial court properly struck the witness' testimony. Id. at 1292. For the same reasons, the District Court here properly struck Mattson's testimony. Clearly Doddington would like to benefit from the inferences the jury could draw from Mattson's invocation of his Fifth Amendment privilege. But a defendant does not have the right to call a witness to the stand simply to force invocation of the right against self-incrimination in the presence of the jury. United States v. Lyons, 703 F.2d 815, 818 (5th Cir.1983). "Neither side has the right to benefit from any inferences the jury may draw simply from the witness' assertion of the privilege either alone or in conjunction with questions that have been put to him." United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973).
III.
13
Doddington next argues that the District Court abused its discretion in admitting into evidence Ex. 3-B, a white powder analyzed as methamphetamine that the government alleged was found in a pouch around Doddington's neck. Specifically, he argues that the government did not establish a sufficient chain of custody for the admission of Ex. 3-B.
14
Testimony adduced at trial revealed that Officer Buie found and seized a packet of white powder and $1030 in cash from a pouch around Doddington's neck. Officer Buie placed the packet of powder in an evidence envelope, sealed the envelope, inventoried the contents, and marked the bag in which the white powder was found. Buie testified that he gave the evidence envelope to Sgt. Cane, who placed it in an evidence locker. DEA Agent Michael Leonard later removed the envelope from the evidence locker and mailed it to the Chicago DEA laboratory for analysis. DEA Chemist Raney testified that the envelope was intact and sealed upon his receipt of it. He opened the evidence envelope and removed the plastic packet of white powder, analyzed it and determined that it was methamphetamine, and sent the original plastic packet to fingerprinting.
15
The basis of Doddington's objection at trial to the chain of custody of Ex. 3-B is that the government did not produce Sgt. Cane to testify that he personally secured the evidence envelope received from Officer Buie in an evidence locker. Thus, he argues, the chain of custody was not sufficiently established, and the white powder itself and DEA chemist Raney's testimony regarding his analysis of it were improperly admitted.2
16
The admission of evidence is within the discretion of the district court; the scope of appellate review is whether that discretion has been abused. United States v. Brown, 482 F.2d 1226, 1228 (8th Cir.1973). We have carefully reviewed the trial transcript and the entire record on appeal, and we cannot say that the District Court abused its discretion in admitting Exhibit 3-B.
17
It is clear that the exhibit was properly admitted into evidence if it was "in substantially the same condition as when the crime was committed." United States v. Anderson, 654 F.2d 1264, 1267 (8th Cir.), cert. denied, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981). It generally is presumed that government officials have preserved the integrity of the evidence and have not tampered with it. United States v. McCowan, 706 F.2d 863, 865 (8th Cir.1983). When a defendant submits proof of tampering of the evidence or of improper motivation of government officials, the burden shifts to the government to show that "precautions were taken to maintain the evidence in its original state." Anderson, 654 F.2d at 1267.
18
Though Sgt. Cane did not testify that he personally placed the envelope in the evidence locker, Officer Buie testified (without objection from Doddington) that he gave Ex. 3-B (the white powder) to Cane, who placed it in an evidence locker. Thus, there was evidence to support the District Court's finding that the chain of custody of Ex. 3-B had sufficiently been established. On these facts, we hold that the District Court did not abuse its discretion in admitting Ex. 3-B into evidence.3
19
AFFIRMED.
1
The issue of judicial immunity is raised by Doddington for the first time on appeal. Therefore, we will review that issue under the plain error standard. Having carefully reviewed the trial transcript, we find no plain error in the District Court's decision not to grant "judicial immunity" to Mattson sua sponte. Judicial immunity has not been recognized in this Circuit. The cases cited by Doddington, see United States v. Saettele, 585 F.2d 307, 310-314 (8th Cir.1978) (Bright, J., dissenting), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979); United States v. Hardrich, 707 F.2d 992, 993-994 (8th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983), are of no help to him in the circumstances of this case. In Saettele, Judge Bright suggested in dissent that a defendant might be denied a fair trial in a case where the government immunizes its witnesses but thereafter declines to offer immunity to the defendant's witnesses. 585 F.2d at 310-314. Here, the government established its case against Doddington without calling Mattson as a witness or granting immunity to any of its witnesses. In Hardrich, the Court suggested that a court would have inherent authority to grant "judicial immunity" to a defense witness only if it "is clear that the proffered testimony [is] clearly exculpatory." 707 F.2d at 994. Here, defense counsel stated that he never had discussed the case with Mattson. Thus, it would be difficult to establish whether Mattson's testimony would be "clearly exculpatory." Moreover, even assuming arguendo that Mattson admitted ownership of all the drugs found in his car, such testimony would not be inconsistent with the government's aiding and abetting theory, as charged in the indictment and in the jury instructions
2
Doddington argues that Ex. 3-B was a significant piece of circumstantial evidence in the government's case. The government, he argues, tried to establish the element of his knowing and intentional possession of the 110 grams of methamphetamine (27% purity) (Ex. 2-D) found in the second bag (Bag B, Ex. 2-A) by showing that 1.2 grams of methamphetamine (25% purity) (Ex. 3-B) were found in his neck pouch. DEA Agent Raney testified it was possible that Ex. 3-B and Ex. 2-D came from the same source. Tr. 116
3
On appeal Doddington makes several challenges to the admission of Ex. 3-B. At trial, however, defense counsel objected only on the ground of foundation (chain of custody) and stated as the basis for his objection the fact that Sgt. Cane did not testify. Tr. 151-152. Thus, that is the only ground we will review under an abuse of discretion standard. A foundation objection must be specific, and a defendant may not raise on appeal a ground not mentioned at the time of his objection. United States v. Wagoner, 713 F.2d 1371, 1377 (8th Cir.1983). We have carefully reviewed Doddington's other challenges to Ex. 3-B, but find no plain error resulting in a miscarriage of justice from its admission
Finally, Doddington also contends that the prosecutor's references in closing argument and in rebuttal to Ex. 3-B as methamphetamine constituted improper argument of facts not in evidence, thereby prejudicing him. Having found the chain of custody of Ex. 3-B to have been sufficiently established, we hold a fortiori that the prosecutor's references to the white powder in Ex. 3-B as methamphetamine clearly was not improper.
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36 So.3d 492 (2010)
Ronson BANKS, Appellant
v.
STATE of Mississippi, Appellee.
No. 2009-KA-00070-COA.
Court of Appeals of Mississippi.
June 8, 2010.
Leslie S. Lee, Jackson, David Lydell Tisdell, Benjamin Allen Suber, attorneys for appellant.
Office of the Attorney General by Deirdre McCrory, John R. Henry, Jr., attorneys for appellee.
Before LEE, P.J., IRVING and ISHEE, JJ.
ISHEE, J., for the Court:
¶ 1. In December 2008, Ronson Banks was convicted of robbery in the Coahoma County Circuit Court. Banks was sentenced to twelve years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by his conviction, Banks filed an appeal. Banks asserts that the identification process used to identify him was so impermissibly suggestive that he suffered irreparable misidentification. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On December 12, 2006, Elizabeth Cohens was walking home from her job at Wood Security in Clarksdale, Mississippi. As she was walking, she met an individual in the street who spoke to her. Cohens testified that she heard someone running behind her, turned, and then felt a gun being pressed against her back by a man. She further testified that the man demanded she give him her backpack and cell phone. After consenting to his demands, Cohens then walked across the street and called for help. The police arrived shortly thereafter, and Cohens described to them what had just taken place.
*493 ¶ 3. Cohens gave a description of her attacker, including that he had been drinking from a Burger King cup. The police then went looking for Cohens's attacker. After receiving Cohens's description, Officer Jason Sims began patrolling the area and attempted to locate the attacker. He and other officers stopped a man who fit the description. The man was also in possession of a Burger King cup. After being apprehended by officers, the man, later identified as Banks, was shown to Cohens, and she identified him as the one who had robbed her.
¶ 4. Banks was taken into custody. He was read his Miranda rights and proceeded to give a statement to Detective Romelle Matthews. In his statement, Banks admitted he took Cohens's backpack, but he claimed that he did not have a gun.
DISCUSSION
¶ 5. Banks's sole issue on appeal is whether the trial court erred in admitting the identification testimony. Banks asserts that the "showup" identification used by the police was unfairly suggestive and, therefore, inadmissible. However, Banks did not raise this issue at trial. "[A] failure to object is fatal for purposes of preserving error [for appeal]." Fleming v. State, 604 So.2d 280, 302 (Miss. 1992). Further, "[q]uestions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error." Stringer v. State, 279 So.2d 156, 158 (Miss.1973) (citing Boutwell v. State, 165 Miss. 16, 27-28, 143 So. 479, 482 (1932)). Banks effectively waived his objection to the identification testimony when he failed to raise the issue at trial.
¶ 6. Despite the procedural bar, had Banks not waived his right to appeal the alleged mis-identification error, the issue would, nonetheless, be without merit. Banks admitted that he took Cohens's backpack. The only issue at trial was whether or not he used a weapon when he took the backpack. His identity was simply not an issue. Accordingly, this issue is also without merit.
¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
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977 F.2d 1190
60 Fair Empl.Prac.Cas. (BNA) 128,60 Empl. Prac. Dec. P 41,835, 2 A.D. Cases 254,3 NDLR P 138
Edward B. OVERTON, Plaintiff-Appellant,v.William K. REILLY, Administrator, Environmental ProtectionAgency, and United States Environmental ProtectionAgency, Defendants-Appellees.
No. 91-3186.
United States Court of Appeals,Seventh Circuit.
Argued April 30, 1992.Decided Oct. 22, 1992.
James C. Schroeder, Vincent J. Connelly, Kathleen Gorr (argued), Mayer, Brown & Platt, Chicago, Ill., for plaintiff-appellant.
Linda A. Wawzenski, Asst. U.S. Atty., Madeleine S. Murphy, Asst. States Atty., Fred Foreman, U.S. Atty., Office of the U.S. Atty., Criminal Div., Chicago, Ill., for defendants-appellees.
Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
CUDAHY, Circuit Judge.
1
Edward Overton brought a claim against the United States Environmental Protection Agency (EPA) under sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 & 794 et seq. (1988). Overton claims that the EPA fired him because of his handicap. The district court granted summary judgment for the EPA, and we reverse.
I.
2
We review a grant of summary judgment de novo, and must take the facts in the light most favorable to the non-movant. Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1084 (7th Cir.1992). The following account, drawn from the briefs, the memorandum opinion of the district court and the record, presents the facts of the case from Overton's point of view.
3
Overton lacks a finger on his left hand, but the missing finger does not hold him back much. Overton is somewhat disabled, however, by an emotional illness, which appears to put a strain on his contacts with other people. Despite a long history of mental illness, which includes severe bouts of depression,1 in 1985 Overton managed to graduate from the University of Illinois at Chicago with a B.S. in Chemistry. Upon graduation, the Illinois Department of Rehabilitation Services (DORS) recommended that Overton apply for a job with the EPA, which had a Disabled Persons Program. DORS notified Seth Diblee, the head of the Program, that Overton had personal and emotional problems and took a small amount of medication to control tension. The DORS letter concluded, however, that Overton's disability would not interfere with his performance as a chemist.
4
Diblee referred Overton to Gregory Parker, the (then) Chief of the Underground Injection Control Section of the EPA for Region V, based in Chicago. Parker offered Overton a job with the permit unit of his section. According to Parker's deposition testimony, he hoped that a chemist would add to the overall expertise of the Permit Unit staff, which consists mostly of geologists. Parker did not know that Overton would have difficulty communicating with the public. On the other hand, Parker and Overton did not discuss public contact, and Overton was under the impression that the job did not require any. Overton's job description states that personal contacts "primarily include employees in the agency, both inside and outside the immediate office, including higher-grade staff, professionals and support staff." Overton App. at 68. It makes no mention of contacts with the public.
5
Soon after he started work in December 1985, Overton began to have trouble with the new supervisor of the Permit Unit, Valerie Jones. Overton admits to falling asleep at his desk during his first week, when he had nothing to do and his medication made him drowsy. Jones claims, and Parker also stated, that Overton slept on the job rather more often. Larger troubles arose in January 1986, however, when Jones announced that all of the members of the Permit Unit technical staff would have to write permits--an activity that requires some amount of communication with permit applicants. Shortly after this announcement, Overton informed Jones that his emotional problems made personal contact with members of the public difficult for him, if not impossible. Overton asked that his job be restructured so that he could avoid using the telephone and meeting with permit applicants in person. He also asked for more assignments that would require use of his knowledge of chemistry. According to Diblee and Overton, Jones refused even to consider making accommodations along these lines. Jones herself testified that her response was to suggest that Overton seek another position within the agency.
6
In subsequent performance reviews, Jones criticized Overton for his "inability to communicate effectively with the regulated community." Dep. of Valerie Jones at 61 (Dec. 19, 1990). The reviews also report that Overton continued to sleep on the job and that he was having difficulty with the technical aspects of permit writing.
7
Despite these negative reviews, there is evidence that Overton was at least trying hard. Although there were eleven or twelve members of the Permit Unit technical staff, Overton completed 25 percent of the Unit's file reviews (apparently a dirty job that other employees avoided). Overton also completed 42 permits, approximately 20 percent of those completed by the Unit as a whole.
8
There is also evidence that Overton was doing acceptable work. During 1986, Parker took Overton under his wing: he reviewed Overton's work, talked to him frequently and asked him to perform a substantial research project. According to Parker, Overton showed progress in learning to write permits. Although Overton made mistakes, they were not that serious, nor were they unexpected in light of Overton's lack of geological expertise. Parker opined that Overton was better than other permit writers of his acquaintance who had substantially more experience.
9
Overton sent the results of his research project to Mario Salazar, a member of the EPA's technical staff in Washington, for peer comments. Salazar commended Overton's paper and sent it to other managers in his office, with the suggestion that the relevant regulations be amended. When Jones saw the paper, however, she disagreed with Overton's conclusions and criticized him for circulating the paper outside of proper channels.
10
As early as February or March 1986, Jones told Parker that Overton should not be in the Permit Unit because he lacked a geotechnical background and because of his psychological problems. In October 1986, Jones gave an unfavorable evaluation of Overton's performance for fiscal year 1986. She cited the inordinate amount of supervision Overton required, his failures to communicate and his lack of progress in understanding the technical aspects of the permit process. Following the negative review, Jones fired Overton as of December 1986. Overton filed an internal complaint, exhausted his administrative remedies and then sued.
11
One more set of facts is worth noting. In September 1985, before he was hired by the EPA, Overton applied for disability benefits. When he started work at the EPA, Overton notified the Social Security Administration (SSA) that he had taken gainful employment. In January 1986, the SSA determined that Overton was eligible for disability benefits, based on his emotional handicap. Given his employment status, the SSA awarded benefits on a nine-month trial basis. When Overton found out that he would be terminated, in October 1986, Overton notified the SSA, which continued his benefits.
12
On the EPA's motion for summary judgment, Judge Parsons concluded that there was no genuine issue that Overton was not "otherwise qualified" for his position. Mem.Op. and Order at 16 (July 9, 1991) (Mem.Op.). The EPA had made every "reasonable accommodation" for Overton's handicap; Overton had presented no evidence that he "could have performed the essential functions of any position"; and Overton's suggested accommodations were unreasonable in that they required the EPA to manufacture a new position for him. Id. at 14-15.
II.
13
Overton brought suit under sections 501 and 504 of the Rehabilitation Act of 1973. 29 U.S.C. §§ 791 & 794. The district court treated Overton's claim as one brought solely under section 504. Mem.Op. at 1. To compound the confusion, we have expressed some doubt that section 504 applies to employment discrimination suits against federal agencies. McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984); see also Johnson v. United States Postal Service, 861 F.2d 1475, 1477 (10th Cir.1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985) (section 501 is exclusive remedy for federal employees). Other circuits, however, believe that 504 does apply. See, e.g., Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983); Smith v. United States Postal Service, 742 F.2d 257, 260 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292, 302-04 (5th Cir.1981) (discussing legislative history); cf. Ristoff v. United States, 839 F.2d 1242, 1243-44 (7th Cir.1988) (assuming without discussion that plaintiff may sue federal employer under section 504). The EPA is also in dissent from our musings in McGuinness, as it has promulgated regulations under section 504 that apply to its own employees. See 40 C.F.R. pt. 12 (1991).2
14
Neither of the parties has addressed the applicability of section 504 or the differences (if any) between a claim brought under 501 and a claim brought under 504. We need not address these questions either, since the threshold issue on which the district court granted summary judgment is identical (or at least substantially similar) under both provisions.
15
Section 504 authorizes discrimination suits by "otherwise qualified handicapped individual[s]." Section 501(b) is phrased in very different terms: the section says nothing about discrimination or qualifications and merely requires federal agencies to submit affirmative action plans. Nonetheless, section 505(a)(1), 29 U.S.C. 794a(a)(1) (1988), authorizes individual lawsuits against federal agencies that violate the terms of section 501. And regulations promulgated by the Equal Employment Opportunity Commission (EEOC) under section 501 make clear that federal agencies may not discriminate against "qualified physically or mentally handicapped person[s]." 29 C.F.R. § 1613.703 (1991); see generally Langon v. Department of Health and Human Services, 959 F.2d 1053, 1057 (D.C.Cir.1992). Thus, Overton may not maintain an action under either provision unless he is "qualified."
16
"Qualified" is a defined term. The EEOC polices section 501, 29 U.S.C. 791(b), and defines a qualified handicapped person as one who "with or without reasonable accommodation, can perform the essential functions of the position in question...." 29 C.F.R. § 1613.702(f) (1991). "Reasonable accommodation" is also defined:
17
Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible ... and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
18
29 C.F.R. § 1613.704(b) (1991). These possibilities are to be balanced against considerations of "undue hardship" to the agency. See 29 C.F.R. § 1613.704(a) & (c) (1991).
19
The individual agencies police section 504 and are responsible for promulgating their own regulations. 29 U.S.C. § 794(a). This might have led to a hash of conflicting and contradictory provisions, but it did not, since the agencies have more or less copied the EEOC's regulations including its definitions of "qualified" and "reasonable accommodation." See, e.g., 5 C.F.R. §§ 900.703(e)(1) & 900.706(b)(2) (1992) (Office of Personnel Management); 29 C.F.R. § 32.3 (1991) (Department of Labor); 38 C.F.R. §§ 18.403(k)(1) & 18.412 (1991) (Department of Veterans Affairs); 45 C.F.R. §§ 84.3(k) & 84.12 (1991) (Department of Health and Human Services). The EPA took a more economical route, and simply declared that the EEOC's regulations apply directly. See 40 C.F.R. §§ 12.103, 12.140 (1991).
20
In sum, litigants must jump through the same hoops to recover under either section 501 or section 504. The plaintiff must be handicapped and qualified. To be qualified, the plaintiff must be able to perform the essential functions of his job, with or without reasonable accommodation by his employer.
21
The only potential difference between sections 501 and 504 is the burden of persuasion on the issue of "reasonable accommodation." Other circuits have held that under section 501 the burden of proof is on the government to show that a proposed accommodation is unreasonable. Langon, 959 F.2d at 1061; Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.1985); Treadwell, 707 F.2d at 478; Prewitt, 662 F.2d at 308, 310 (full discussion of shifting burdens). Actions under section 504, on the other hand, may require the plaintiff to show that a proposed accommodation is reasonable, although the case law on this issue is, to say the least, complex. Compare Doe v. New York Univ., 666 F.2d 761, 775-77 (2d Cir.1981) with Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1386-87 (10th Cir.1981); see also Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 22-26 (1st Cir.1991) (en banc) (questioning Doe ). The apparent differences may be justified by the obligation of the government to undertake affirmative action on behalf of the handicapped under section 501, an obligation that section 504 does not impose. Southeastern Community College v. Davis, 442 U.S. 397, 410-13, 99 S.Ct. 2361, 2369-71, 60 L.Ed.2d 980 (1979); Hall v. United States Postal Service, 857 F.2d 1073, 1077 (6th Cir.1988).3 We need not allocate the burden of proof here, however, for we conclude that summary judgment was inappropriate even if Overton bears the burden of proof on this issue.4
III.
22
We turn now to the central issue in this case: Is there a genuine question of fact whether Overton is "otherwise qualified" for his position?
23
A. Communicating with the "Regulated Community"
24
Overton concedes that his disability prevents him from communicating effectively with applicants for injection well permits. The EPA contends that such communication is an essential function of Overton's job. Since he cannot perform that function, the EPA argues, Overton is not qualified for his position.
25
There is a genuine question here, however, whether contact with the public is an essential function of Overton's job. Public contact was not part of Overton's official job description, either when he was hired or when Jones announced that all technical staff would have to write permits. See Davis v. Frank, 711 F.Supp. 447, 453 (N.D.Ill.1989) (job description is relevant to determination of essential functions of position). Overton also presented evidence that Kris Kamath, another member of the Unit's technical staff, does not have any contact with the public, despite the mandate from Jones. As the district court pointed out, Kamath has better educational credentials than Overton, Mem.Op. at 15, but that does not mean that Overton is necessarily unqualified to perform similar tasks in the Permit Unit.
26
Even if contact with the public is an essential function of Overton's job, there is evidence to suggest that Overton could perform that function with reasonable accommodation by the EPA. First, even if contact is essential, the job does not require much of it: Parker testified that about five percent of Overton's job involved public contact. And there does not seem to be any question that Overton is capable of corresponding with permit applicants by mail. To the extent that telephone contacts are required, it may be reasonable for the EPA to provide Overton with someone to talk for him, just as it might be a reasonable accommodation for the EPA to provide an interpreter for an employee who was deaf. See 29 C.F.R. § 1613.704(b)(2) (1991). Overton has also suggested that his job be restructured; he could perform support functions for members of the staff who are better on the telephone. This proposal does not seem inherently unreasonable. See id.
27
At trial, these potential accommodations may turn out to be unduly burdensome on the EPA, but we cannot say that the agency has presented evidence sufficient to make the conclusion inevitable.
B. Sleeping on the Job and Poor Performance
28
Putting contacts with the public aside, the EPA presented substantial evidence to the district court that Overton's overall performance was unacceptably poor. But here, too, there are genuine issues of fact. Overton denies that he slept as much as Jones alleges. He has also presented evidence that his sleepiness is a side effect of his medication. Further, there is evidence that, even if Overton slept as much as Jones alleges, he still got his work done. Supervisors are prone to view catnaps as inappropriate and unprofessional, but if Overton's sleepiness is a function of his disability (or, more properly, of the treatment for his disability) and he can still perform the essential functions of his job, then he may still be viewed as "qualified" under the Rehabilitation Act.5
29
The EPA also presented some evidence that Overton required an inordinate amount of supervision. But again there was countervailing evidence--the deposition testimony of Gregory Parker that Overton made mistakes typical of a new permit writer and was improving. Some of Overton's problems with writing permits may be due to his lack of a geotechnical background. Parker may have made a mistake when he hired a chemist for the Permit Unit staff. But, again, we cannot say that there is no question about Overton's qualification for his job.
30
At this point we should emphasize that we have addressed only the threshold issue of Overton's qualification for his position. Nothing in section 504 of the Rehabilitation Act, however, requires a federal agency to retain every minimally qualified handicapped employee. Further, "the Rehabilitation Act requires only a stereotype-free assessment of the person's abilities and prospects rather than a correct decision." Anderson v. University of Wisconsin, 841 F.2d 737, 747 (7th Cir.1988) (interpreting section 504); Carter v. Casa Central, 849 F.2d 1048, 1053 (7th Cir.1988). Section 501 may impose somewhat greater obligations to take affirmative action, but again we need not decide. If section 504 standards apply, however, Overton will have to establish at trial not only that he was qualified, but also that Jones fired him because of his handicap. Although the district court does not appear to have ruled on this point in granting summary judgment, we note that Overton presented evidence from which one could infer that Jones did so.
C. Total Disability
31
The district court was greatly impressed by the finding of the Social Security Administration that Overton was entitled to disability benefits. Overton, the court said, had "failed to offer any evidence to refute the conclusion drawn by the Social Security Administration that he is 'unable to perform any substantial gainful activity.' " Mem.Op. at 15-16. But the evidence that Overton completed a large number of file reviews and permits, that his work was adequate and that his research paper was well received does tend to show that Overton was able to carry on substantial gainful activity.
32
Further, even if a finding of disability could have preclusive effect in a private lawsuit,6 such a finding is consistent with a claim that the disabled person is "qualified" to do his job under the Rehabilitation Act. First, the SSA may award disability benefits on a finding that the claimant meets the criteria for a listed disability, without inquiring into his ability to find work within the economy. Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984). As it turns out, the SSA granted benefits to Overton on this basis. Second, even if the SSA had looked into Overton's ability to find work in the national economy, its inquiry would necessarily be generalized. The SSA may determine that a claimant is unlikely to find a job, but that does not mean that there is no work the claimant can do. In sum, the determination of disability may be relevant evidence of the severity of Overton's handicap, but it can hardly be construed as a judgment that Overton could not do his job at the EPA.
IV.
33
Overton has presented evidence sufficient to create a genuine question whether he was qualified for his position. Accordingly, the judgment of the district court is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion.
1
"Depression" is a misleadingly mild term for an extraordinarily debilitating illness. See William Styron, Darkness Visible: A Memoir of Madness (Random House 1990)
2
Courts have assumed that section 504 prohibits handicap discrimination against federal employees because it prohibits discrimination "under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a) (1988); Prewitt, 662 F.2d at 302 & n. 15. In 1988, Congress amended section 504 to provide a definition for "program or activity." Civil Rights Restoration Act of 1987, Pub.L. No. 100-259 § 4(2), 102 Stat. 29 (1988). Although the purpose of the amendment was to expand the coverage of the Rehabilitation Act following a restrictive interpretation by the Supreme Court, see DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1383-84 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991), the extensive new definition of "program or activity" makes no reference to federal employment. As discussed in the text, infra, we need not decide whether the amendment changes the applicability of section 504 to federal employment practices. Accordingly, we also need not decide whether the amendment should apply retroactively if it does change the law
3
On the other hand, the different formulations of the burden of proof may also be due to differing fact patterns, rather than the different statutory provisions involved. See Doe v. New York Univ., 666 F.2d at 776 (allocation of burdens may depend on whether the employer relies on the handicap expressly, or claims to have acted on another basis)
4
We trust that the parties will spend some time after remand to flesh out the issues we have raised
5
We do not mean to condone promiscuous napping. Some positions may actually require full-time vigilance. Every position presumably requires wakefulness for most of the working day and at specified events. In any event, the government may presumably require its employees to stay awake as a matter of decorum. But that is not necessarily to say that an occasional nap would make any federal employee unfit
6
Judge Parsons did not give the disability determination preclusive effect, and the EPA does not argue that we should
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0735-09
JOHN ANIGHORO, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
TARRANT COUNTY
Per curiam. Keasler and Hervey, JJ., dissent.
ORDER
The petition for discretionary review violates Rule of Appellate Procedure 68.4(i),
because the petition does not contain a copy of the opinion of the court of appeals.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition and copies must be filed
in the COURT OF CRIMINAL APPEALS within thirty days after the date of this order.
Filed: June 24, 2009
Do Not Publish
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425 U.S. 738 (1976)
HOSPITAL BUILDING CO.
v.
TRUSTEES OF REX HOSPITAL ET AL.
No. 74-1452.
Supreme Court of United States.
Argued February 25, 1976.
Decided May 24, 1976.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
*739 John K. Train III argued the cause for petitioner. With him on the brief were Timothy S. Perry and John R. Jordan, Jr.
Ray S. Bolze argued the cause for respondents. With him on the brief were John H. Anderson and Lillard Mount.[*]
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This is a suit brought under §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1-2. Petitioner has alleged that respondents are engaged in an unlawful conspiracy to restrain trade and commerce in the furnishing of medical and surgical hospital services, and that they are attempting to monopolize the hospital business in the Raleigh, N. C., metropolitan area. The District Court dismissed petitioner's amended complaint on the pleadings, finding that petitioner had not alleged a sufficient nexus between the alleged violations of the Sherman Act and interstate commerce. The Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the judgment of the District Court, holding that the provision of hospital services is only a "local" activity, 511 F. 2d 678, 682 (1975), and that the amended complaint did not adequately allege a "substantial effect" id., at 684, on interstate commerce. We granted certiorari, 423 U. S. 820 (1975), and now reverse. We hold that the amended complaint, fairly *740 read, adequately alleges a restraint of trade substantially affecting interstate commerce and that dismissal on the pleadings of petitioner's amended complaint was therefore inappropriate.
I
A
Since we are reviewing a dismissal on the pleadings, we must, of course, take as true the material facts alleged in petitioner's amended complaint. See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 222 (1948). Petitioner is a corporation organized for profit under the laws of North Carolina. It operates the Mary Elizabeth Hospital, a 49-bed proprietary hospital in Raleigh, N. C., which offers a general range of medical and surgical services to the public. Respondent Trustees of Rex Hospital (Rex) is a North Carolina corporation which operates Rex Hospital, a private, tax-exempt hospital also located in Raleigh. The other three respondents are the administrator of Rex, one of its individual trustees, and the executive secretary of the local agency responsible for making recommendations to state officials concerning the Raleigh community's need for additional hospital beds. The amended complaint alleges that respondents, along with several co-conspirators not named as defendants in this action, have acted in concert to block the planned relocation of Mary Elizabeth Hospital within the city of Raleigh and its expansion from 49 beds to 140 beds. According to the amended complaint, respondents and their co-conspirators orchestrated a plan to delay and, if possible, prevent the issuance of the state authorization that was a necessary prerequisite to the expansion of Mary Elizabeth. After a delay of some months, the authorization was finally granted, but since then, it is alleged, respondents and *741 their co-conspirators have employed a series of bad-faith tactics, including the bringing of frivolous litigation, to block the implementation of the expansion. The amended complaint also alleges that respondents have maliciously instigated the publication of adverse information about petitioner's expansion plan in order to block the expansion. All these actions, it is contended, have been taken as part of an attempt by Rex to monopolize the business of providing compensated medical and surgical services in the Raleigh area.
Petitioner identifies several areas of interstate commerce in which it is involved. According to the amended complaint, petitioner purchases a substantial proportionup to 80%of its medicines and supplies from out-of-state sellers. In 1972, it spent $112,000 on these items. A substantial number of the patients at Mary Elizabeth Hospital, it is alleged, come from out of State. Moreover, petitioner claims that a large proportion of its revenue comes from insurance companies outside of North Carolina or from the Federal Government through the Medicaid and Medicare programs. Petitioner also pays a management service fee based on its gross receipts to its parent company, a Delaware corporation based in Georgia. Finally, petitioner has developed plans to finance a large part of the planned $4 million expansion through out-of-state lenders. All these involvements with interstate commerce, the amended complaint claims, have been and are continuing to be adversely affected by respondents' anticompetitive conduct.
B
Respondents' motion to dismiss asserted both that the District Court had no jurisdiction over the subject matter of the amended complaint, Fed. Rule Civ. Proc. 12 (b) (1), and that the amended complaint failed to *742 state a claim upon which relief could be granted. Rule 12 (b) (6). Critical to respondents' motion was their contention that the amended complaint failed "to allege facts sufficient to state the requisite effect upon interstate commerce as required under the Sherman Act." App. 32. The District Court granted the motion to dismiss, concluding that the provision of hospital and medical services "is strictly a local, intra-state business," Pet. for Cert., App. D-3, and that "the conduct of the defendants complained of in this case directly affects only a local activity of the plaintiff, and only incidentally and insubstantially does it affect interstate commerce." Id., at D-3D-4.
A three-judge division of the Court of Appeals for the Fourth Circuit affirmed the ruling of the District Court. Thereupon, petitioner filed a motion for rehearing en banc, which was granted, and the division opinion was withdrawn. On rehearing en banc, the ruling of the District Court was again affirmed. 511 F. 2d 678 (1975). While the Court of Appeals perceived some ambiguity as to whether the District Court decision was grounded on Rule 12 (b) (1) or Rule 12 (b) (6), it treated the decision as holding that under Rule 12 (b) (6) petitioner had failed to state a claim upon which relief could be granted.[1] The court then held that the allegations in the amended complaint, even if true, were inadequate to support a conclusion that the alleged anticompetitive conduct was occurring in interstate commerce, or that it had or would have a substantial effect on interstate commerce.
*743 II
The Sherman Act prohibits every contract, combination, or conspiracy "in restraint of trade or commerce among the several States," 15 U. S. C. § 1, and also prohibits monopolizing "any part of the trade or commerce among the several States." 15 U. S. C. § 2. It is settled that the Act encompasses far more than restraints on trade that are motivated by a desire to limit interstate commerce or that have their sole impact on interstate commerce. "[W]holly local business restraints can produce the effects condemned by the Sherman Act." United States v. Employing Plasterers Assn., 347 U. S. 186, 189 (1954). As long as the restraint in question "substantially and adversely affects interstate commerce," Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 195 (1974); Mandeville Island Farms,Inc. v. American Crystal Sugar Co., 334 U. S., at 234, the interstate commerce nexus required for Sherman Act coverage is established. " `If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.' " Gulf Oil Corp. v. Copp Paving Co., supra, at 195, quoting United States v. Women's Sportswear Assn., 336 U. S. 460, 464 (1949).[2]
In this case, the Court of Appeals, while recognizing *744 that Sherman Act coverage requires only that the conduct complained of have a substantial effect on interstate commerce, concluded that the conduct at issue did not meet that standard. We disagree. The complaint, fairly read, alleges that if respondents and their co-conspirators were to succeed in blocking petitioner's planned expansion, petitioner's purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies would be thousands and perhaps hundreds of thousands of dollars less than they would otherwise be. Similarly, the management fees that petitioner pays to its out-of-state parent corporation would be less if the expansion were blocked. Moreover, the multimillion-dollar financing for the expansion, a large portion of which would be from out of State, would simply not take place if the respondents succeeded in their alleged scheme. This combination of factors is certainly sufficient to establish a "substantial effect" on interstate commerce under the Act.
The Court of Appeals found two considerations crucial in its refusal to find that the complaint alleged a substantial effect on interstate commerce. The Court's reliance on neither was warranted. First, the Court observed: "The effect [on interstate commerce] here seems to us the indirect and fortuitous consequence of the restraint of the intrastate Raleigh area hospital market, rather than the result of activity purposely directed toward interstate commerce." 511 F. 2d, at 684 (footnote omitted). But the fact that an effect on interstate commerce might be termed "indirect" because the conduct producing it is not "purposely directed" toward interstate commerce does not lead to a conclusion that the conduct at issue is outside the scope of the Sherman Act. For instance, in Burke v. Ford, 389 U. S. 320 (1967), Oklahoma liquor retailers brought a Sherman Act action against liquor wholesalers in the state, alleging that the wholesalers *745 had restrained commerce by dividing up the state market into exclusive territories. While the market division was patently not "purposely directed" toward interstate commerce, we held that it nevertheless substantially affected interstate commerce because as a matter of practical economics[3] that division could be expected to reduce significantly the magnitude of purchases made by the wholesalers from out-of-state distillers. "The wholesalers' territorial division . . . almost surely resulted in fewer sales to retailershence fewer purchases from out-of-state distillersthan would have occurred had free competition prevailed among the wholesalers." Id., at 322 (footnote omitted). Whether the wholesalers intended their restraint to affect interstate commerce was simply irrelevant to our holding. See also United States v. McKesson & Robbins, 351 U. S. 305 (1956). In the same way, the fact that respondents in the instant case may not have had the purposeful goal of affecting interstate commerce does not lead us to exempt that conduct from coverage under the Sherman Act.
The Court of Appeals further justified its holding of "no substantial effect" by arguing that "no source of supply or insurance company or lending institution can be expected to go under if Mary Elizabeth doesn't expand, and no market price likely will be affected." 511 F. 2d, at 684. While this may be true, it is not of great relevance to the issue of whether the "substantial effect" test is satisfied. An effect can be "substantial" under the Sherman Act even if its impact on interstate commerce falls far short of causing enterprises to fold or affecting market price. For instance in United States v. Employing Plasterers Assn., supra, we considered a *746 Sherman Act challenge to an alleged conspiracy between a trade association and union officials to restrain competition among Chicago plastering contractors. As in the instant case, the District Court dismissed the action on the pleadings. It did so on the ground that the complaint amounted to no more than charges of "local restraint and monopoly," 347 U. S., at 188, not reached by the Sherman Act. The United States appealed directly to this Court under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. § 29, and we reversed. It was sufficient for us that the allegations in the complaint, if proved, could show that the conspiracy resulted in "unreasonable burdens on the free and uninterrupted flow of plastering materials into Illinois." 347 U. S., at 189 (emphasis added). We did not demand allegations, either express or implied, that the conspiracy threaten the demise of out-of-state businesses or that the conspiracy affect market prices.[4] Thus, since in this case the allegations fairly claim that the alleged conspiracy, to the extent it is successful, will place "unreasonable burdens on the free and uninterrupted flow" of interstate commerce, they are wholly adequate to state a claim.
We have held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U. S. 41, 45-46 (1957) (footnote omitted). And in antitrust cases, where "the proof is largely in the hands of the alleged conspirators," Poller v. Columbia Broadcasting, 368 U. S. 464, 473 (1962), dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly. Applying this concededly rigorous standard, we conclude that *747 the instant case is not one in which dismissal should have been granted. Petitioner's complaint states a claim upon which relief can be granted under the Sherman Act.[5] Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
NOTES
[*] Briefs of amici curiae urging reversal were filed by Solicitor General Bork, Assistant Attorney General Kauper, Barry Grossman, Robert B. Nicholson, and John J. Powers III for the United States; and by Carl Weissburg and Lyle R. Mink for the Federation of American Hospitals.
[1] We, too, will treat the dismissal as having been based on Rule 12 (b) (6). However, our analysis in this case would be no different if we were to regard the District Court's action as having been a dismissal for want of subject-matter jurisdiction under Rule 12 (b) (1). In either event, the critical inquiry is into the adequacy of the nexus between respondents' conduct and interstate commerce that is alleged in the complaint.
[2] When Congress passed the Sherman Act in 1890, it took a very narrow view of its power under the Commerce Clause. See, e. g., H. R. Rep. No. 1707, 51st Cong., 1st Sess., 1 (1890); Slater, Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 Nw. U. L. Rev. 71, 84 (1974). Subsequent decisions by this Court have permitted the reach of the Sherman Act to expand along with expanding notions of congressional power. See Gulf Oil Corp. v. Copp Paving Co., 419 U. S., at 201-202. Compare United States v. E. C. Knight Co., 156 U. S. 1 (1895), with Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219 (1948), and United States v. Employing Plasterers Assn., 347 U. S. 186 (1954).
[3] We have noted that "[i]t is in a practical sense that we must view an effect on interstate commerce." Goldfarb v. Virginia State Bar, 421 U. S. 773, 784 n. 11 (1975).
[4] See also Goldfarb v. Virginia State Bar, supra, at 783-785.
[5] It may, of course, be that even though petitioner's complaint adequately alleges an effect on interstate commerce, further proceedings in this case will demonstrate that respondents' conduct in fact involves no violation of law, or indeed no substantial effect on interstate commerce. Cf. United States v. Oregon Medical Soc., 343 U. S. 326 (1952).
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THE THIRTEENTH COURT OF APPEALS
13-13-00642-CR
PHILLIP SALINAS
v.
THE STATE OF TEXAS
On Appeal from the
347th District Court of Nueces County, Texas
Trial Cause No. 11CR677-H
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion.
We further order this decision certified below for observance.
May 8, 2014
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286 F.Supp.2d 604 (2003)
Jeffrey GOTTESMAN Plaintiff,
v.
J.H. BATTEN, INC. Defendant.
No. 1:03CV00085.
United States District Court, M.D. North Carolina.
September 26, 2003.
*605 *606 *607 *608 *609 Mark Floyd Reynolds, II, High Point, NC, Todd J. Combs, Morgan Herring Morgan Green, Rosenblutt & Gill, High Point, NC, for Plaintiff.
Dena Beth Langley, Brian Stephen Clarke, Adams Kleemeier Hagan Hannah & Fouts, Greensboro, NC, for Defendant.
MEMORANDUM OPINION
BULLOCK, District Judge.
On January 24, 2003, Jeffrey Gottesman ("Plaintiff") filed an employment discrimination suit against J.H. Batten, Inc. ("Defendant"). Plaintiff's complaint alleges several bases for relief in five separate counts: (1) age discrimination in employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"); (2) failure to accommodate a disability and discriminatory discharge in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"); (3) failure to accommodate a disability and discriminatory discharge in violation of the North Carolina Persons with Disabilities Protection Act,[1] N.C. Gen. Stat. § 168A-1, et seq. (the "NCPDPA"); (4) failure to accommodate a disability in violation of the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, cl. 2; and (5) wrongful discharge from employment in violation of North Carolina state public policy.
Before the court is Defendant's motion to dismiss all counts of Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Defendant's motion to dismiss will be granted in part and denied in part.
FACTS
Defendant is a building contractor located in Forsyth County, North Carolina. On November 6, 2000, Plaintiff was hired by Defendant's President, David Batten, as Defendant's "Chief Estimator." At the time of his hiring, Plaintiff was fifty-nine years old and had over forty years of experience as an estimator in the construction industry.
As Chief Estimator, Plaintiff performed approximately seventy-five percent of his work within Defendant's home office. Plaintiff's duties included determining the building materials needed by Defendant to complete building projects, pricing and bidding, and sales and marketing. Part of Plaintiff's sales and marketing duties involved oral and written presentations to potential clients, architects, and owners. At Defendant's request, Plaintiff also trained a new estimator to perform similar types of estimation work for Defendant.
In December 2001, Plaintiff was diagnosed with throat cancer and hospitalized. Defendant placed Plaintiff on an indefinite medical leave of absence and hired a new estimator in the meantime. On December 13, 2001, medical doctors performed a full laryngectomy on Plaintiff and surgically removed all of Plaintiff's larynx.[2] As a *610 result of his laryngectomy, Plaintiff lost the use of his vocal cords and now speaks with the aid of an electronic speaking device or artificial larynx.[3]
On April 11, 2002, Plaintiff returned to work. Plaintiff maintains that upon his return to work, he asked Defendant to provide him with e-mail capabilities and a telephone headset. Plaintiff requested these accommodations so that he might perform his job duties and speak on the telephone with ease despite his electronic speaking device. According to Plaintiff's complaint, Defendant agreed to provide Plaintiff with e-mail capabilities but refused to provide Plaintiff with a telephone headset. Defendant told Plaintiff and Plaintiff's wife that Plaintiff could use a telephone headset on company phones as long as he purchased his own headset. Although Plaintiff explained to Defendant that he could not afford to buy his own telephone headset, Defendant ignored all of Plaintiff's requests for a headset.
Plaintiff also maintains that, during his first week at work following his medical leave of absence, he did not receive any work assignments until he requested work from Defendant. Upon Plaintiff's request, Defendant asked Plaintiff to estimate the cost of construction for a church building. Plaintiff received no other work projects from Defendant until one week later when Plaintiff again requested work from Defendant. Defendant then asked Plaintiff to estimate another church construction project.
On April 26, 2002, David and Harold Batten met with Plaintiff and informed Plaintiff of his discharge from employment with Defendant. Plaintiff maintains that Defendant told him the reason for his discharge was that his work was "too slow." (Compl.¶ 19.) At the time of Plaintiff's discharge, Plaintiff was sixty-one years old.
Plaintiff alleges in his complaint that Defendant failed to provide Plaintiff reasonable accommodations regarding his disability by refusing to supply him with a telephone headset. Plaintiff also asserts that Defendant's alleged reason for terminating him was pretextual and that Defendant wrongfully terminated Plaintiff's employment because of his age and disability. Based on these allegations, Plaintiff contends that Defendant's conduct constitutes employment discrimination in violation of the ADEA, ADA, NCPDPA, and the United States Constitution. Plaintiff also contends that Defendant wrongfully discharged him in violation of North Carolina public policy.
DISCUSSION
A motion to dismiss for failure to state a claim upon which relief may be granted made pursuant to Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the court accepts as true all well-pleaded allegations and views the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). The function of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint and not the facts that support it. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is *611 entitled to offer evidence to support the claims." Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
(1) Plaintiff's ADEA Claim
In his "First Cause of Action," Plaintiff asserts a claim against Defendant pursuant to the ADEA. "In order to establish a cause of action under the ADEA, a plaintiff must demonstrate that but for the employer's motive to discriminate against the plaintiff on the basis of age, the plaintiff would not have been discharged." E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992). "The plaintiff may meet this burden under the ordinary standards of proof by direct or indirect evidence relevant to and sufficiently probative of the issue [of age discrimination]." Id.[4] In the alternative, a plaintiff may follow the judicially created scheme of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and adapted to ADEA cases. Clay Printing Co., 955 F.2d at 940 (citations omitted). Under the McDonnell Douglas scheme of proof, the plaintiff must show four elements to establish a prima facie case of discriminatory discharge under the ADEA: "(1) he is a member of the protected class; (2) he was qualified for the job and met the employer's legitimate expectations; (3) he was discharged despite his qualifications and performance; and (4) following his discharge, he was replaced by someone with comparable qualifications outside the protected class." Causey v. Balog, 162 F.3d 795, 802 (4th Cir.1998) (citation omitted).
An employment discrimination plaintiff need not plead specific facts in his complaint establishing a prima facie case of discrimination under the McDonnell Douglas framework. Swierkiewicz v. Sorema, 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). "[U]nder a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case." Swierkiewicz, 534 U.S. at 511, 122 S.Ct. 992 (emphasis omitted). Instead, the plaintiff must comply with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must only include a "short and plain statement of the claim showing that the pleader is entitled to relief" in order to provide defendant fair notice of the nature of the plaintiff's claims and the grounds upon which they rest. Id. at 512, 122 S.Ct. 992 (citing Conley, 355 U.S. at 47, 78 S.Ct. 99).
In the instant case, Plaintiff alleges in his complaint that "[t]he Defendant's assertions that it was proper to terminate [Plaintiff] for unknown reasons is a ploy used by the Defendant to terminate the Plaintiff['s] employment because of his age, sixty-one." (Compl. ¶ 25.) Plaintiff contends that he was "intentionally terminated *612 by the Defendant because of his age." (Compl.¶27.) Plaintiff also contends that "[he] was terminated by [Defendant] fifteen days following his return to work, and he was replaced by a significantly younger employee." (Compl.¶ 36.) Plaintiff further contends that he is entitled to liquidated damages for Defendant's "willful violations of the Age Discrimination in Employment Act." (Compl.¶ 29.) Viewing the complaint in the light most favorable to the plaintiff, the court finds that Plaintiff has sufficiently stated a claim of age discrimination under the ADEA.
In support of its motion to dismiss, Defendant relies heavily on the Fourth Circuit's holding in Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991) (holding that where the individual who fired the plaintiff is the same individual who hired him less than six months earlier with full knowledge of his age, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer). Defendant suggests that this court extend the Proud inference to the very earliest stages of litigation and dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted.
The presumption articulated in Proud simply does not apply in the context of Defendant's motion to dismiss Plaintiff's complaint for failure to state a claim. The Federal Rules of Civil Procedure establish a pleading standard without regard to whether a claim will succeed on the merits. Swierkiewicz, 534 U.S. at 515, 122 S.Ct. 992. Not every fact that a plaintiff will eventually base his claim upon must be listed in his complaint. See Faircloth v. Duke Univ., 267 F.Supp.2d 470, 473 (M.D.N.C.2003). An inquiry into whether or not Plaintiff is able to support his claim with evidence of discriminatory motive is more suitable for summary judgment. Therefore, Defendant's motion to dismiss Plaintiff's claim based on the ADEA is denied.
(2) Plaintiff's ADA Claims
In his "Second Cause of Action," Plaintiff asserts claims against Defendant pursuant to the ADA. "The ADA prohibits discrimination by a covered entity, including a private employer ... `against a qualified individual with a disability.'" Pollard v. High's of Baltimore, 281 F.3d 462, 467 (4th Cir.2002); see also 42 U.S.C. §§ 12111(2), 12112(a). "To establish a cause of action under the ADA, a plaintiff must show: `(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.'" Petty v. Freightliner Corp., 123 F.Supp.2d 979, 981 (W.D.N.C.2000) (quoting Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir.1995)). "[I]n order to come within the ADA's protected class, a plaintiff must first show that [he or] she is disabled within the meaning of the Act." Pollard, 281 F.3d at 467.[5]
*613 Plaintiff's claim under the ADA for failure to accommodate a disability ultimately requires a showing that Plaintiff was "disabled" within the meaning of the ADA. Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir.2001) (citations omitted).[6] However, a plaintiff may establish a discriminatory discharge claim by showing that he was either actually impaired or regarded as disabled by his employer, even if not actually impaired. Whether Plaintiff is actually a disabled person need not be determined at this stage in litigation. See Fletcher v. Tidewater Builders Ass'n, Inc., No. CIV.A. 2:03CV46, 216 F.R.D. 584, 2003 WL 21782331 at *4 (E.D.Va. May 12, 2003). A plaintiff need not state a prima facie case under the ADA to plead sufficient facts to sustain a claim under the ADA and Rule 8(a)(2). See Swierkiewicz, 534 U.S. at 515, 122 S.Ct. 992. Under Rule 8(a)(2), a plaintiff's complaint needs to contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 8(a)(2); see also Swierkiewicz, 534 U.S. at 508, 122 S.Ct. 992.
The requirements of notice pleading are not onerous. Id. at 513-14, 122 S.Ct. 992. In the instant case, Plaintiff states in his complaint that "[he] returned to work on April 11, 2002, with physical limitations involving the loss of his larynx ... [that] required use of an electronic speaking device." (Compl.¶32.) Plaintiff alleges that "[t]he Defendant purposely denied employment opportunity to the Plaintiff, who is otherwise a qualified individual with a disability, by denying the Plaintiff reasonable accommodations to the physical impairments confronting the Plaintiff." (Compl. ¶ 32.) Plaintiff also alleges that "[s]ince the Plaintiff's throat surgery, the Defendant purposely discriminated against the Plaintiff by terminating him, and by refusing to accommodate the Plaintiff's disability needs." (Compl.¶33.) Plaintiff contends that Defendant's "improper actions, including the termination of [Plaintiff's] employment ... violates [sic] the Americans with Disabilities Act." (Compl.¶31.) These allegations contained in Plaintiff's complaint lead the court to find that Plaintiff has pled sufficient facts to sustain a claim under the ADA and Rule 8(a)(2).
*614 In his "Third Cause of Action" under the NCPDPA, Plaintiff states that "[he] had a physical impairment that does not substantially limit major life activities, but is considered by this Defendant as constituting such a limitation." (Compl.¶ 43.) Defendant cites this single allegation by Plaintiff to argue that Plaintiff's claims under the ADA must be dismissed because the ADA imposes no obligation on Defendant to accommodate a non-existent disability. However, "[t]he ADA provides protection for individuals, who while they are not [actually] disabled under the definition provided by the ADA, are regarded as disabled by their employer." Farrish v. Carolina Commercial Heat Treating, Inc., 225 F.Supp.2d 632, 636 (M.D.N.C.2002) (citing Haulbrook v. Michelin N. Am., 252 F.3d 696, 702-03 (4th Cir.2002)). "A person is `regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities." Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999).
To state a claim that Defendant regarded him as disabled, Plaintiff must allege that Defendant entertained a misperception about him or that Defendant regarded him as having an impairment within the meaning of the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Plaintiff's statement that his impairment "does not substantially limit major life activities, but is considered by ... Defendant as constituting such a limitation" (Compl.¶ 43) infers that Defendant regarded him as impaired within the meaning of the ADA and discharged him for that reason. Furthermore, Plaintiff makes numerous other allegations throughout his complaint that he is physically impaired and restricted in the major life activity of speaking.
Viewing the complaint in the light most favorable to the plaintiff, Plaintiff has sufficiently stated claims for failure to accommodate an actual disability and discriminatory discharge under the ADA because of his disability or because Defendant regarded him as disabled. Therefore, Defendant's motion to dismiss Plaintiff's claims based on the ADA will be denied.
(3) Plaintiff's NCPDPA Claim
In his "Third Cause of Action," Plaintiff asserts claims against Defendant for failure to provide reasonable accommodation and for discriminatory discharge pursuant to the NCPDPA. Civil actions regarding employment discrimination under the NCPDPA must be "commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct." N.C. Gen. Stat. § 168A-12. In this case, the last alleged discriminatory act described in Plaintiff's complaint occurred when Defendant terminated Plaintiff's employment on April 26, 2002. (Compl.¶ 19.) Plaintiff surely gained awareness of this alleged discriminatory conduct contemporaneously with its occurrence. However, Plaintiff filed his complaint in this action on January 24, 2003two hundred seventy-three days after the date of Defendant's last alleged discriminatory act.
Dismissal is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense. Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir.1996). A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading and dismissal is appropriate. 5A Charles A. Wright & Arthur R. Miller, *615 Federal Practice and Procedure § 1357, at 352 (2d ed.1990).
Because Plaintiff's NCPDPA claim is time-barred by the one hundred eighty day statute of limitations set forth in N.C. Gen.Stat. § 168A-12, Plaintiff has failed to state a claim upon which relief can be granted. Therefore, Plaintiff's "Third Cause of Action" fails in its entirety as a matter of law. Defendant's motion to dismiss Plaintiff's claims based on the NCPDPA will be granted.[7]
(4) Plaintiff's Supremacy Clause Claim
In his "Fourth Cause of Action," Plaintiff attempts to assert an employment discrimination claim against Defendant pursuant to the Supremacy Clause of the United States Constitution. "The Supremacy Clause is grounded in the allocation of power between federal and state governments and is not a source of, nor does it protect, [individual rights] ...." Maryland Pest Control Ass'n v. Montgomery County, Md., 884 F.2d 160, 162 (4th Cir.1989). "[T]he Supremacy Clause establishes the supremacy of federal over state law and is not of itself a source of substantive constitutional rights." Id. Considering Plaintiff's complaint against the standards applicable to a Rule 12(b)(6) motion, Plaintiff has failed to state a claim upon which relief can be granted. Therefore, Plaintiff's "Fourth Cause of Action" fails in its entirety as a matter of law, and Defendant's motion to dismiss Plaintiff's claim based on the Supremacy Clause of the United States Constitution will be granted.
(5) Plaintiff's North Carolina State Public Policy Claim
In his "Fifth Cause of Action," Plaintiff asserts a claim against Defendant for wrongful discharge in violation of "the intent of the laws of the State of North Carolina." (Compl. ¶ 55.) As a general rule in North Carolina, an employee at-will has no claim for wrongful discharge. Walker v. Westinghouse Elec. Corp., 77 N.C.App. 253, 260, 335 S.E.2d 79, 84 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). "[I]n the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party." Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997). "However, [the employment at-will] doctrine is not without limits and a valid claim for relief exists for wrongful discharge of an employee at will if the contract is terminated for an unlawful reason or a purpose that contravenes public policy." Tompkins v. Allen, 107 N.C.App. 620, 622, 421 S.E.2d 176, 178 (1992), disc. review denied, 333 N.C. 348, 426 S.E.2d 713 (1993) (citation omitted). The public policy exception to at-will employment has been narrowly construed and is "grounded in considerations of public policy designed either to prohibit status-based discrimination or to insure the integrity of the judicial process or the enforcement of the law." Kurtzman, 347 N.C. at 333-34, 493 *616 S.E.2d at 423. Under these exceptions, the employee has the burden of pleading and proving that the employee's dismissal occurred for a reason that violates public policy. Considine v. Compass Group U.S.A., Inc., 145 N.C.App. 314, 317, 551 S.E.2d 179, 181 (2001).
In the instant case, Plaintiff identifies "[t]he right to work [as] one of the most significant concerns in this State, as well as this Nation." (Compl. ¶ 52.) Plaintiff contends that "[t]he improper actions by this Defendant in summarily discharging the Plaintiff, impact[ ] on, and violate[] this public policy." (Compl. ¶ 52.)
Plaintiffs complaint fails to cite any specific North Carolina public policy expressed in an explicit statutory or constitutional provision as a basis for his wrongful discharge claim. Cf. Considine v. Compass Group U.S.A., Inc., 145 N.C.App. 314, 551 S.E.2d 179 (2001) (holding that plaintiff failed to state a claim for wrongful discharge where plaintiff's complaint alleged merely that "[d]efendant's actions as set out herein violate the public policies of North Carolina and are thus unlawful," and did not identify any specified North Carolina public policy that defendant violated by discharging plaintiff). As a result, Plaintiff has not provided Defendant with fair notice of the statutory or constitutional grounds upon which his wrongful discharge claim rests.
Plaintiff has failed to state a claim upon which relief can be granted, and Plaintiff's "Fifth Cause of Action" fails in its entirety as a matter of law. Therefore, Defendant's motion to dismiss Plaintiff's wrongful discharge claim based on the public policy of the State of North Carolina will be granted.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss will be granted in part and denied in part.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.
ORDER
For the reasons set forth in the memorandum opinion filed contemporaneously herewith,
IT IS ORDERED that Defendant's motion [Doc. # 5] to dismiss is GRANTED IN PART AND DENIED IN PART.
IT IS ORDERED that Defendant's motion to dismiss Plaintiff's claim based on the ADEA is DENIED.
IT IS FURTHER ORDERED that Defendant's motion to dismiss Plaintiff's claims based on the ADA are DENIED.
IT IS FURTHER ORDERED that Defendant's motion to dismiss Plaintiff's claims based on the NCPDPA are GRANTED, and those claims are hereby DISMISSED.
IT IS FURTHER ORDERED that Defendant's motion to dismiss Plaintiff's claim based on the Supremacy Clause of the United States Constitution is GRANTED, and that claim is DISMISSED.
IT IS FURTHER ORDERED that Defendant's motion to dismiss Plaintiff's wrongful discharge claim based on the public policy of the State of North Carolina is GRANTED, and that claim is DISMISSED.
NOTES
[1] Plaintiff's complaint refers to N.C. Gen.Stat. § 168A-1 et seq. as the "North Carolina Handicapped Persons Protection Act ... effective October 1, 1985." (Compl.¶ 39.) However, N.C. Gen. Stat § 168A-1 et seq. was amended effective October 1, 1999, and renamed the "North Carolina Persons with Disabilities Protection Act." See 1999 N.C. Sess. Laws 160, s. 1.
[2] The larynx is "the musculocartilaginous structure, lined with mucous membrane, connected to the superior part of the trachea and to the pharynx inferior to the tongue and the hyoid bone [and] the essential sphincter guarding the entrance into the trachea and functioning secondarily as the organ of voice." Dorland's Illustrated Medical Dictionary 715 (26th ed.1985).
[3] An artificial larynx is "an electromechanical device which, when activated, produces sounds used in speech, by simulating laryngeal activity, and thus enables a laryngectomized person to converse." Id.
[4] Under the ordinary standards of proof scheme, a prima facie case of employment discrimination consists of three elements. The plaintiff must demonstrate that: (1) he was an employee covered by the ADEA, (2) who suffered an unfavorable action by an employer covered by the ADEA, and (3) "age was a determining factor" in the action in the sense that "`but for'" the defendant's intent to discriminate on the basis of age, the plaintiff would not have been subjected to the employment action. Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1112 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981) (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979)).
[5] In the context of the ADA, "disability" means "a physical or mental impairment that substantially limits one or more of the major life activities of a [qualified individual]; [] a record of such impairment; or [] being regarded as having such an impairment." 42 U.S.C. § 12101(2). Under the Equal Employment Opportunity Commission regulations, "a `physical impairment' includes `[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." Sutton v. United Air Lines, Inc., 527 U.S. 471, 479-80, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (citing 29 C.F.R. § 1630.2(h)(1)). The term "substantially limited" means "`[u]nable to perform a major life activity that the average person in the general population can perform'; or `[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to ... [how] the average person in the general population can perform that same major life activity.'" Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195-96, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (citing 29 C.F.R. § 1630.2(j)). "Major life activities, for purposes of ADA claims, include `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, [and] learning[.]'" Petty v. Freightliner Corp., 123 F.Supp.2d 979, 981-82 (citing 29 C.F.R. § 1630.2(I)).
[6] In his wrongful discharge claim under the ADA, Plaintiff must eventually establish his prima facie case by demonstrating that "(1) he is within the ADA's protected class; (2) he was discharged; (3) at the time of his discharge he was performing the job at a level that met his employer's legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination." Rhoads v. F.D.I.C., 257 F.3d 373, 387 n. 11 (4th Cir. 2001) (citing Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.2001)). In his failure to accommodate claim under the ADA, Plaintiff must eventually establish his prima facie case by demonstrating that (1) he was an individual who had a disability under the meaning of the statute; (2) his employer had notice of his disability; (3) with reasonable accommodation he could perform the essential functions of the position; and (4) his employer refused to make such accommodations. Id. (citing Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999)).
[7] The NCPDPA also provides, in pertinent part:
No court shall have jurisdiction over an action filed under this chapter where the plaintiff has commenced federal judicial or administrative proceedings under ... the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., as amended, or federal regulations promulgated under that act, involving or arising out of the facts and circumstances involved in the alleged discriminatory practice under this Chapter.
N.C. Gen.Stat. § 168A-11(c). Plaintiff's claims under the ADA and NCPDPA arise out of the same facts and circumstances. Plaintiff's NCPDPA claim fails as a matter of law for this reason as well.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMANDA DEESE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:12-cr-00110-RBS-LRL-1)
Submitted: July 24, 2014 Decided: July 28, 2014
Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amanda Deese, Appellant Pro Se. Alan Mark Salsbury, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amanda Deese appeals the district court’s order
denying her motion to correct her sentence to reduce the amount
of restitution she owes and to reduce her Guidelines offense
level. We have reviewed the record and find no reversible
error. Accordingly, we affirm for the reasons stated by the
district court. United States v. Deese, No. 2:12-cr-00110-RBS-
LRL-1 (E.D. Va. Mar. 7, 2014). We grant Deese’s motion to
proceed in forma pauperis on appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
2
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897 F.Supp. 517 (1995)
Jeri C. WREATH, Plaintiff,
v.
UNITED STATES of America; Department of the Army; and Togo D. West, Jr., Secretary of the Army, Defendants.
No. 94-4160-SAC.
United States District Court, D. Kansas.
August 18, 1995.
*518 Alan V. Johnson, R. Scott Seifert, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for plaintiff.
D. Brad Bailey, Office of United States Attorney, Topeka, KS, for defendants.
MEMORANDUM AND ORDER
CROW, District Judge.
On August 26, 1994, Jeri C. Wreath commenced this action against the defendants asserting claims under Title VII of the Civil Rights Act of 1964, the Federal Tort Claims Act (FTCA) and the Fair Labor Standards Act (FLSA). According to her complaint, Wreath was hired at Fort Riley, Kansas, "as a contract swim instructor on December 30, 1991." On September 2, 1992, Wreath was hired as a permanent employee, classified as a non-appropriated funds employee with the DPCA, INWRF-SPORTS POOLS Department[1] and placed on a one year probationary period.
In her Title VII claim (Count I), Wreath alleges that she was sexually harassed by her immediate supervisor, Robert E. Luke, during the entire period she worked at Fort Riley. Wreath alleges, inter alia, that Luke requested sexual intercourse, asked Wreath "if she would be willing to instruct his wife how to perform oral sex," and forced her "through threats of termination to videotape Robert E. Luke and his wife engaging in sexual intercourse." Wreath also alleges that Luke forced her to teach "swim classes in known unsafe conditions, such as unsafe chemical levels, unsafe weather conditions and lack of adequate lifeguards." In her FTCA, tort of outrage claim (Count II), Wreath seeks damages for the intentional and reckless acts of Luke that occurred within the scope of his employment as her immediate supervisor. In her FLSA claim (Count III), Wreath alleges that she was constantly required to work overtime without pay. Wreath seeks compensatory and punitive damages from the defendant; Wreath also seeks liquidated damages under the FLSA.
According to her complaint, Wreath has "exhausted all required administrative remedies, and has timely filed this action with this Court for relief." On February 4, 1994, Wreath filed a claim under the FTCA. On August 12, 1994, the Department of the Army, U.S. Army Claims Service formally denied her claim for $375,000.[2]
This case comes before the court upon the United States' motion to dismiss (Dk. 27). The United States seeks dismissal of Wreath's FTCA and FLSA claims, as well as her claim for punitive damages. The United States contends that Title VII is Wreath's exclusive judicial remedy for her claims of employment discrimination; the government contends that Wreath's FLSA claim, as well as her tort of outrage claim, are therefore precluded by her Title VII claim.[3] The United *519 States also argues that Wreath cannot recover under the FTCA as her exclusive remedy for any injury she sustained is under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The United States also contends that it is not liable for punitive damages under Title VII.
Wreath concedes that her claim for punitive damages must be dismissed. Wreath opposes the balance of the United States' motion to dismiss. Wreath contends that the LHWCA is not her exclusive remedy as her coverage has not yet been determined and that she is therefore entitled to pursue her claim under the FTCA until her coverage is determined. Wreath also contends that her FLSA and tort claims are not barred by her Title VII claims.
Based in part upon the defendant's contention that the issues raised by its motion to dismiss and the plaintiff's response "are complicated and will require detailed research," the court granted the defendant an extension of time to file a reply brief. Despite the extension of time, no reply was filed.
Is the LHWCA the exclusive remedy for Wreath's personal injuries claims?
Wreath worked for the Army's Directorate of Personnel and Community Activities (DPCA) Outdoor Sports Center, Pools Branch, Fort Riley, Kansas, which is a nonappropriated funds position. The United States argues that the LHWCA is Wreath's exclusive remedy for her FTCA claims. In Johnson v. United States, 600 F.2d 1218 (6th Cir.1979), the court explained NAFI and the exclusivity of the worker's compensation scheme devised for NAFI employees:
Ordinarily, an employee of the United States is entitled to compensation for work related death or disability under the Federal Employees Compensation Act [FECA], 5 U.S.C. §§ 8101 et seq....
However, employees of nonappropriated fund instrumentalities of the United States are excluded from coverage under the Federal Employees Compensation Act as well as from certain laws administered within the Civil Service System. 5 U.S.C. § 2105(c). Instead, employees of nonappropriated fund instrumentalities are entitled, under 5 U.S.C. § 8171, to compensation for work related death or disability under the terms of the Longshoremen's Act ... Moreover, 5 U.S.C. § 8173 provides that coverage under the Longshoreman's Act is exclusive and in lieu of all other remedies against the United States for covered injuries.
Johnson v. United States, 600 F.2d 1218, 1220-1221 (6th Cir.1979) (footnote omitted).
Wreath apparently concedes that her tort claims under the FTCA would be barred if it is determined that she is covered by the LHWCA. Wreath has apparently filed for LHWCA benefits. However, because it has not yet been determined whether she is covered by the LHWCA, Wreath contends that she is entitled to pursue her FTCA claims.
The case law suggests three possible alternatives which this court may take at this juncture: (1) allow Wreath to proceed until a final decision awarding benefits is rendered; (2) dismiss Wreath's tort of outrage claim without prejudice; or (3) stay this claim pending the final decision on Wreath's LHWCA claims.
In support of her contention that she should be allowed to simply press on pending a final decision, Wreath cites Vilanova v. *520 United States, 851 F.2d 1 (1st Cir.1988), cert. denied, 488 U.S. 1016, 109 S.Ct. 811, 102 L.Ed.2d 801 (1989). In Vilanova, the plaintiff worked at a non-appropriated fund facility. Vilanova claimed that he suffered injuries from the malpractice of physicians at a naval hospital. As an NFIA employee, Vilanova was covered by the LHWCA. The NFIA "provides that LHWCA is the exclusive remedy against both the United States and the nonappropriated fund employer for injuries `arising out of and in the course of'" the plaintiff's employment. 851 F.2d at 2. In fact, Vilanova had received LHWCA compensation for his injuries. Nevertheless, the First Circuit held that the mere fact that Vilanova had applied for and received LHWCA benefits did not bar his FTCA claim. 851 F.2d at 4-5. Vilanova's FTCA claim was barred however, as he reached a settlement which found that his injuries were compensable under the LHWCA. 851 F.2d at 5.
The second alternative is indirectly suggested by the government. In its brief, the government cites Wilder v. United States, 688 F.Supp. 1541 (M.D.Ga.1988), [vacated, 873 F.2d 285 (11th Cir.1989),] in support of its contention that Wreath, as an employee of a nonappropriated fund instrumentality, cannot recover damages from the government for personal injuries under the FTCA. In Wilder, the district court held that the plaintiff's exclusive remedy for her work-related injuries was the LHWCA. Consequently, the district court dismissed Wilder's complaint with prejudice. On appeal, the district court's decision was vacated. The Eleventh Circuit held that the district court erred in finally determining that Wilders' work-related injury was compensable under the LHWCA. Instead, that decision was one to be made by the Secretary of Labor. "Until Wilder has made an application for benefits and had it denied, she cannot pursue her remedy under the FTCA." 873 F.2d at 288. "The correct approach is to dismiss [Wilder's] complaint without prejudice to her right to file another upon an allegation that she has been denied benefits under the LHWCA." 873 F.2d at 289.
A third alternative, and the one this court deems most appropriate, is to stay this claim pending a final decision on Wreath's LHWCA claim. In Hudiburgh v. United States, 626 F.2d 813 (10th Cir.1980), the Tenth Circuit held that where a complaint raises a substantial question[4] as to FECA coverage, it is appropriate to stay the plaintiff's FTCA claim pending disposition of the FECA claim.
We are of the opinion that pending the pursuit of the Federal Employees Compensation Act claim, the Tort Claims Act case should stand abated ... We do this because we believe that this FECA right should be pursued before the FTCA claim.
The procedure which we in effect prescribe is set forth by the Fifth Circuit in Concordia v. United States Postal Service, 581 F.2d 439 (5th Cir.1978).
Accordingly, the cause is remanded to the district court with directions to reinstate the Tort Claims Act and order it held in abatement pending the pursuit of the claim under the FECA.
626 F.2d at 814. See Tarver v. U.S., 25 F.3d 900, 902 (10th Cir.1994) ("If a plaintiff brings an action in federal court, but a question exists as to whether FECA might cover the claim, the court must stay its proceedings pending the final decision of the Secretary of Labor regarding FECA coverage."). Although Hudiburgh and Tarver each concerned claims under the FECA rather than a claim under the LHWCA, it appears appropriate to follow this same procedure in the case at bar. Cf. Wilder, 873 F.2d at 287-288 ("We hold today that the same test should be applied to determine whether the liability of the United States under the LHWCA via the Nonappropriated Fund Instrumentalities Act, 5 U.S.C.A. §§ 8171-8173, excludes the availability of other remedies, including the recovery sought by Wilder under the FTCA.").
*521 Consequently, the court orders the plaintiff's FTCA claim to be held in abatement pending disposition of her LHWCA claim. In reaching this decision, the court recognizes that it has chosen an option neither suggested or requested by the parties. Nevertheless, the court believes it appropriate to follow the path most closely following Tenth Circuit precedent. The court will, of course, consider a timely motion to reconsider from either or both parties which suggests a superior alternative in light of Tenth Circuit precedent.
Does Title VII preempt Wreath's FLSA claim?
Assuming, arguendo, that Wreath may assert an FLSA claim, see 5 U.S.C. § 2105(c)(1)(C), the government has provided no direct authority supporting its contention that Title VII precludes Wreath from asserting an FLSA claim. Title VII and the FLSA serve different purposes and do not share identical elements. Cf. Miranda v. B & B Cash Grocery Store, Inc. 975 F.2d 1518, 1526-1527 (11th Cir.1992) ("Title VII and the Equal Pay Act exist side by side in the effort to rid workforce of gender-based discrimination. Plaintiffs have two tools for relief, each of which provides different burdens of proof and may produce different amounts of compensation."). Based upon the arguments presented, the court denies the government's motion to dismiss Wreath's FLSA claim.
IT IS THEREFORE ORDERED that the United States' motion to dismiss (Dk. 27) is denied in part and granted in part. Wreath's claims for punitive damages are dismissed. The United State's request to dismiss Wreath's FTCA, intentional infliction of emotional distress, claim is denied. The United States' request to dismiss Wreath's FLSA claims is denied. Wreath's FTCA claim is held in abeyance pending disposition of her LHWCA claim.
NOTES
[1] The Federal Employee's Compensation Act (FECA) is found at 5 U.S.C. §§ 8101-8193. The facility at which Wreath worked is apparently a nonappropriated fund instrumentality (NAFI). "The Nonappropriated Fund Instrumentalities Act is codified as Subchapter II of FECA." Wilder v. United States, 873 F.2d 285, 287 n. 4 (11th Cir.1989); see Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §§ 8171-8173. "NAFI activities are funded through earnings rather than congressional appropriation." Traywick v. Juhola, 922 F.2d 786, 787 (11th Cir.1991).
[2] The United States' brief indicates that Wreath's FTCA claim was denied by the United States Army Claims Service "because the FTCA does not apply to employees of nonappropriated fund instrumentalities."
[3] In support of this argument, the government cites Swafford v. United States, 998 F.2d 837 (10th Cir.1993), suggesting that in that case the Tenth Circuit held that Title VII is the exclusive remedy for a federal employee's claims of discrimination and that damages for emotional distress are not recoverable under the FTCA as a separate claim. This does not appear to be an entirely correct reading of Swafford. The district court in Swafford apparently ruled that Title VII was the plaintiff's exclusive remedy for her claims of sex discrimination, including sexual harassment, see 998 F.2d at 838-839, and therefore granted the United States' motion for summary judgment on the plaintiffs' claims of mental and psychological injuries, lost wages, medical expenses, and loss of consortium. On appeal, however, the Tenth Circuit specifically declined to decide that issue:
Because we find that the Swaffords' suit is barred by FECA, it is not necessary for us to specifically review the district court's holding that Title VII is the exclusive remedy for sex discrimination, including sexual harassment.
998 F.2d at 841-842.
In light of this court's decision to stay Wreath's FTCA claim pending disposition of her Longshore and Harbor Workers' Compensation Act (LHWCA) claim, coupled with the fact that the parties have not endeavored to discuss the Tenth Circuit's analysis of this issue, the court expresses no opinion on the merits of this argument advanced by the government.
[4] "A substantial question `is generally present where the Secretary has undertaken an `action' to award or deny FECA benefits."' McCall v. United States, 901 F.2d 548, 552 (6th Cir.) (quoting Wright v. United States, 717 F.2d 254, 257 (6th Cir.1983) (citing Gill v. United States, 641 F.2d 195 (5th Cir.1981))), cert. denied, 498 U.S. 1012, 111 S.Ct. 580, 112 L.Ed.2d 585 (1990).
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999 F.2d 737
62 USLW 2130
UNITED STATES of Americav.David Loren FROST, Appellant.
No. 92-3579.
United States Court of Appeals,Third Circuit.
Argued May 20, 1993.Decided July 22, 1993.
Thomas W. Corbett, Jr., U.S. Atty., Paul J. Brysh (Argued), Asst. U.S. Atty., Gina M. Caldone, Pittsburgh, PA, for appellee.
Stanton D. Levenson (Argued), Pittsburgh, PA, for appellant.
Before: STAPLETON and ALITO, Circuit Judges and POLLAK, District Judge*.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
1
After the denial of his motion to have the evidence against him suppressed, appellant Frost pleaded guilty to one count of possession with intent to distribute cocaine in excess of five kilograms, and was sentenced to 120 months in a federal prison. The sole issue before us is whether the District Court erred in denying Frost's motion to suppress. We find no error and will affirm the judgment of the District Court.
I.
2
On April 21, 1992, Allegheny County Police Detectives Edward Adams and Anthony Olearchick were assigned to a narcotics interdiction detail at the Greater Pittsburgh International Airport. At about 5:00 p.m., Detective Adams observed Appellant Frost disembark from a USAir flight from Ft. Lauderdale, Florida. Frost carried no luggage, and Adams noticed that Frost had bulges in the pockets of his jeans. Adams would later testify that he knew Ft. Lauderdale to be a source city for drugs and that he was aware that police officers and detectives had previously made many airport arrests of persons carrying drugs from Ft. Lauderdale.
3
Adams watched Frost enter a rest room and exit about 15 seconds later. Adams would testify that the practice of entering a rest room, and then exiting seconds later, is a common counter-surveillance technique. As Frost exited the rest room he looked around suspiciously as though trying to determine whether he was being followed. Frost was also pulling down his tee-shirt in what appeared to be an attempt to conceal something on his person. As Adams followed Frost along the public corridor, he observed the outline of what appeared to be cigarette rolling papers, which are used in rolling marijuana cigarettes, in Frost's back pocket. Adams phoned Detective Olearchick and met him near a snack bar area. Both Adams and Olearchick observed Frost as he again entered a rest room and exited moments later.
4
At this time, at about 5:20 p.m., Adams and Olearchick approached Frost, identified themselves as police officers, and asked "Is it okay if we talk with you for a few minutes?" Frost agreed to speak with them, and a conversation ensued. At the time of the conversation, the two detectives were standing side by side with their backs to a service hallway, and Frost stood facing them with his back to the main corridor. Neither detective attempted to touch Frost, and neither detective's gun was visible.
5
Frost related that he was coming from Ft. Lauderdale and was on his way to Lansing, Michigan. He produced his ticket folder upon request, and the detectives noticed that there was a baggage claim check attached to the ticket folder. Detective Adams recorded the information on the baggage claim check, and then returned the ticket folder to Frost. The detectives asked who paid for the ticket and Frost stated that his uncle had paid the fare. Shortly thereafter Frost stated that he had bought the ticket himself. Later, Frost said again that his uncle had bought the ticket.
6
As the conversation continued, Frost appeared to grow increasingly nervous. He was shifting from foot to foot and began wringing his hands. Frost related that he was in Florida to visit his uncle and, upon request, produced identification. The detectives inspected and then returned the identification.
7
Detective Adams then stated that he and Detective Olearchick were narcotics officers. Detective Adams stated that he had observed the large bulges in Frost's pockets. Adams asked Frost "if it would be okay with him, if he could show us what was in his pockets." Adams stated that Frost was under no obligation to comply. Frost voluntarily reached into his pockets and produced a large roll of cash from each pocket. The cash totalled $3,035, and was mostly in ten and twenty dollar bills. Frost also produced a sky pager, which is commonly used in drug trafficking. As Frost retrieved the pager from his pocket, he turned it off, which has the effect of erasing the telephone numbers recorded on the pager.
8
At about 5:27 p.m., the detectives asked Frost to accompany them to the airport police station in order to investigate the matter further, and Frost agreed. Frost and Olearchick then proceeded the 1500 feet to the airport police station, while Adams went to retrieve Frost's suitcase. Adams arrived at the station with the suitcase at about 5:40 p.m. There was a padlock on the suitcase.
9
When Adams arrived, Frost and Olearchick were seated in the interview room. Frost identified the suitcase as his own, but claimed he did not know how a padlock had become attached to the suitcase. Adams asked Frost if he would consent to a search of the suitcase, and Frost refused. At approximately 5:55 p.m., Adams informed Frost that they would call in a drug-sniffing dog to inspect the suitcase and the money, and that they would attempt to secure a search warrant for the suitcase.
10
At approximately 6:00 p.m., the detectives attempted to bring in a drug-sniffing dog and its handler. Because no canine drug detection unit was on duty that day, one had to be summoned to the airport. At approximately this time, the detectives also verified Frost's identification and found that he had no outstanding arrest warrants. Detective Olearchick phoned the police department in the Emmett Charter Township, Michigan, and was informed by a police officer there that Frost was arrested in 1990 for possession of a "large amount of marijuana." Olearchick phoned the police office in downtown Pittsburgh which verified, by computer, that Frost had a 1990 felony arrest for possession of marijuana. Frost would later assert that the 1990 offense resulted in a conviction for a marijuana misdemeanor.
11
The detectives informed Frost that he was free to leave or remain while they attempted to get a search warrant. Frost told the detectives that there were no narcotics in the bag, threatened to file a law suit against them, and then stated that he wanted to catch the next flight to Lansing. The detectives gave Frost receipts for the suitcase, the cash and the pager, and instructed him on how to retrieve the items if the detectives failed to get a search warrant or if no drugs were found. Frost left the station at approximately 6:55 p.m. and subsequently boarded a flight to Lansing.
12
A few minutes after Frost's departure from the station, the dog and its handler arrived, and the dog sniff took place at approximately 7:00 p.m. The dog "alerted" to the cash, but not the suitcase. The detectives then drafted and signed an affidavit to be submitted in support of an application for a search warrant. The affidavit mentioned that the dog alerted to the cash, but did not mention that the dog was exposed to, and did not alert to, the suitcase. The affidavit also mentioned that Frost's felony arrest in 1990 was for a "large amount of marijuana." A district justice issued a search warrant at 7:55 p.m.
13
Upon obtaining the warrant, the detectives searched the suitcase and found ten one-kilogram packages of cocaine. Each package was sealed in a plastic bag, covered with tape, sealed in another plastic bag, wrapped in a layer of aluminum foil and a layer of duct tape, smeared with axle grease, and wrapped in yet another layer of plastic wrap and duct tape.
14
Frost was then removed from his flight to Lansing, which had yet to depart, and returned to the airport police station at 9:15 p.m. where he was advised of his Miranda rights. Frost signed a written waiver of his rights and gave a detailed statement admitting that he had been a cocaine courier for about one year, and that he had earned $150,000 to $180,000 profit.
15
Before the District Court, Frost moved to suppress the cocaine and his incriminating statements and offered three arguments in favor of suppression. Frost claimed that an unconstitutional seizure occurred at his first encounter with the detectives, that the detectives violated his privacy interest in his luggage by taking too long to submit the luggage to the dog sniff, and that the search warrant lacked probable cause because the affidavit omitted the fact that the dog had not alerted to the suitcase and also because the affidavit misrepresented the amount of marijuana that was involved in Frost's prior incident.
16
The District Court denied the motion to suppress. Frost then pleaded guilty to one count of possession with intent to distribute cocaine in excess of five kilograms, and was sentenced to 120 months imprisonment. Frost brought this appeal of the District Court's judgment to deny the motion to suppress, asserting the same three arguments he offered in initial support of the motion.
II.
A.
17
Frost's first argument is that he was unconstitutionally seized at the point he first encountered Detectives Adams and Olearchick. We disagree.
18
The Supreme Court has set forth an objective standard for determining whether a person has been "seized" for the purposes of the Fourth Amendment: "We conclude 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." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See also Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) ("When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking.")
19
The District Court concluded that a reasonable person in Frost's circumstances would have felt free to leave at the initial point of the encounter, and we concur in that conclusion. The detectives approached Frost and asked "Is it okay if we talk with you for a few minutes?" There is no evidence of any attempts at coercion or intimidation by the officers. Frost may easily have declined the officers' invitation and continued to walk along the public corridor. The record indicates that Frost voluntarily complied with the officers' requests for his ticket information and identification. Perhaps most importantly, the record indicates that the detectives made it clear that Frost could refuse to comply with their request to empty his pockets and that Frost nevertheless voluntarily complied with that request. We thus find no "seizure" at the point of initial contact between Frost and the detectives.
B.
20
Frost next argues that the detectives took too long to have his luggage inspected by a drug-sniffing dog, thereby interfering with his privacy interest in the luggage.
21
It is established that when a police officer or other law enforcement officer takes a piece of luggage from a person, a "seizure" within the meaning of the Fourth Amendment occurs. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In Place, the Supreme Court analogized temporary seizures of persons, which were found to be constitutional in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to temporary seizures of luggage, holding that the temporary seizure of luggage is constitutional so long as the seizure is not overly intrusive upon the person's privacy interest in the property, and so long as the property is not detained for a long period of time. The Court noted that "because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels." Place, 462 U.S. at 704, 103 S.Ct. at 2643. Thus, the Court wrote that
22
the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio.... to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate.
23
Place, 462 U.S. at 702, 103 S.Ct. at 2642 (citation omitted).1
24
We find that the officers, upon seeing the items contained in Frost's pockets, had sufficient "reasonable suspicion" to detain Frost for further questioning, and submit his luggage and other belongings to a dog sniff test. We believe that Frost's appearance, belongings and behavior "were adequate grounds for suspecting [him] of carrying drugs and for temporarily detaining him and his luggage while [the officers] attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention." Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1327, 75 L.Ed.2d 229 (1983).
25
Frost argues that the 80 minutes that elapsed between the time Detective Adams brought the suitcase to the airport police station (5:40 p.m.) and the time the suitcase was offered to the dog for olfactory inspection (7:00 p.m.) was too long, and so exceeded the limits of lawful investigative detention. Frost relies solely on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), a case in which the Supreme Court found a search to be unreasonable and ordered the suppression of the evidence produced by the search.
26
In Place, law enforcement officers at Miami International Airport approached Mr. Place, whom they perceived to be acting suspiciously. Mr. Place gave them his identification and consented to a search of his luggage. Because Mr. Place's flight to New York City was about to depart, the officers chose not to search the luggage. Place boarded his flight and flew to New York. Before the flight had landed the Miami officers, who had detected some irregularities in Place's identification, notified the Drug Enforcement Agency (DEA). Two DEA agents were waiting for Place when his flight arrived in New York's La Guardia airport. When Place refused to consent to a search of his luggage, the agents seized it and told Place they were taking it to a federal judge to obtain a search warrant. The agents then took the luggage to Kennedy airport, where they submitted it to a dog sniff. Ninety minutes elapsed between the initial seizure of the luggage at La Guardia, and the sniff at Kennedy.
27
We quote the relevant passage of the opinion in Place at length:
28
The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than ... momentary ones ..., the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York Agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests. Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.
29
Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.
30
Place, 462 U.S. at 709-10, 103 S.Ct. at 2645-46 (citations and footnotes omitted).
31
While this passage does emphasize the amount of time that elapsed between seizure and sniff, we conclude that the law as declared in Place does not support Frost's position. We do not read Place as placing a rigid time limit on the duration of investigatory seizures. Indeed, the Court expressly considered and rejected the approach of announcing a time limit:
32
"[w]e understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation."
33
Place, 462 U.S. at 709, n. 10, 103 S.Ct. at 2646 n. 10.
34
We, like the Supreme Court, decline to abstract the duration of the seizure in Place from its circumstances. The seizure in Place lasted 90 minutes because of a lack of diligence on the part of the police to minimize the intrusion, a lack that was indicated not only in the failure to arrange for a dog sniffing team to be in place to greet Place upon his arrival at La Guardia, but also in the failure to communicate to Place where his luggage was being transported and how he might be able to get it back. The conduct of the officers in Place thus exhibited a general lack of concern for Place's enjoyment of his property.
35
We find no similar lack of concern in the case before us. The detectives called for a drug sniffing unit as soon as Mr. Frost made it clear that he would not consent to a search of the bag. It does not demonstrate a lack of diligence on the part of the detectives that a drug sniffing unit was not on duty that day, so that one had to be summoned to the airport. Nor is it unreasonable that the unit, being summoned at six o'clock in the evening, would take nearly an hour to reach the airport. Moreover, the detectives exhibited diligence in giving Frost receipts for the detained items and instructing him on how he could retrieve them. We find that none of the indicia of a lack of diligence, which substantially informed the result in Place, occurred in the instant case. We thus hold that the detention of Frost's suitcase constituted no violation of his rights.
C.
36
Finally, Frost challenges the search on the ground that the affidavit submitted by the detectives petitioning for the search warrant was misleading. Specifically, Frost claims that the affidavit concealed the fact that the dog did not alert to the suitcase, and that it materially misstated the amount of marijuana that was involved in Frost's prior offense.
37
The rule governing situations involving allegedly misleading search warrant affidavits was articulated by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). There the Court held that where the defendant proves by a preponderance of the evidence "that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that ... the fruits of the search [must be] excluded to the same extent as if probable cause was lacking on the face of the affidavit." Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77. Thus, in order to secure suppression of the fruits of the search, a defendant must show both that bad faith or reckless disregard existed on the part of the affiant, and that there would have been no probable cause but for the incorrect statement.2
1.
38
We first address the omission from the affidavit of the fact that the dog was exposed to, but did not alert to, the suitcase. Detective Adams, who prepared the affidavit in question, gave uncontroverted testimony that he omitted this fact from the affidavit because he did not feel that it was relevant to a probable cause determination. Adams explained that, in his experience, drug couriers often mask the scent of drugs by packaging the drugs in materials such as coffee or pepper or, as in this case, axle grease. Adams testified that he did not omit the fact of the "non-alert" in an attempt to distort the truth or mislead the magistrate; knowing what he knew, he simply viewed it as a neutral factor in the context of a probable cause determination.3 He testified further that, if he had included the fact of the non-alert, he would have also explained the practice of "scent-masking" commonly employed by drug couriers. The district court ruled that Frost had not carried his burden under the second prong of Franks, and we agree. In United States v. Calisto, 838 F.2d 711 (3d Cir.1988), we explained that the second requirement of Franks provided:
39
"a vehicle for determining whether there was a causal connection between the alleged misrepresentation in that case and the challenged search. If the information in the affidavit without the misrepresentation provided probable cause and the warrant should thus have been issued even had there been no scheme to deceive, there would be no causal connection between the scheme and the search and the search would not be tainted."
40
Id. at 715. We went on in Calisto to hold that where an omission, rather than a misrepresentation, is the basis for the challenge to the affidavit, a court should ask whether the affidavit would have provided probable cause if it had contained a disclosure of the omitted information.
41
Applying the teaching of Calisto to the facts of this case, we conclude that the relevant issue is whether the Adams affidavit would have provided probable cause if it had disclosed the information concerning the dog's sniffing of the suitcase, including the information about "scent masking" that Adams knew and would have included to enable the magistrate to evaluate the dog's failure to alert. Only an evaluation of the affidavit so supplemented will reveal whether there is a causal connection between Adams' failure to disclose and the search that could be found to taint the search.
42
When the relevant issue is thus framed, its resolution is not difficult. Adams' affidavit included the following information: Frost arrived from Ft. Lauderdale, a source city for drugs; Frost was not carrying luggage; Frost was young, acted furtively, and employed counter-surveillance techniques; Frost had large bulges in his front pockets and appeared to be carrying rolling papers in his back pocket; Frost became nervous when engaged in conversation by two detectives; Frost contradicted himself when speaking with the detectives; Frost was carrying a large amount of cash in small bills; there was a padlock on Frost's suitcase which he claimed to know nothing about; Frost had been arrested previously on a drug related charge; a drug sniffing dog alerted to the cash. This information clearly provided probable cause--that is, a "fair probability that contraband or evidence of a crime [would have been] found" in Frost's suitcase. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).4 When one includes both the fact that the drug sniffing dog did not alert to the suitcase and the fact that drug couriers often mask the scent of drugs in suitcases so that a drug sniffing dog will not alert, the failure to alert to the suitcase is not inconsistent with the substantial probative thrust of information which Adams did include. Probable cause thus remains; suppression is not appropriate under the teachings of Franks.
2.
43
We consider finally Frost's challenge to the warrant because of the alleged misstatement of the amount of marijuana involved in his prior arrest. Here also, we find that Frost has failed to meet his burden under Franks.
44
The affidavit filed in support of the warrant provided the following information:
45
"[y]our affiants called the Emmett Charter Twp. Police and spoke with Lt. Headley who stated that FROST had been arrested at his home in 1990 for possession of a large amount of marijuana. This was verified by county police radio room check of FROST using the information from his [Michigan] driver's license...." Appendix at p. 16.
46
Frost now asserts that the full information is not that he was arrested for possession of a large amount of marijuana, but that he was convicted of a marijuana misdemeanor.
47
Initially, we note first that Frost has failed to demonstrate that a false statement was made. Being arrested for possession of a large amount of marijuana is not necessarily inconsistent with being convicted of a marijuana misdemeanor. Second, Frost tendered no evidence to the district court tending to show the sort of bad faith or reckless disregard for the truth on the part of the detectives that Franks requires. The record contains no evidence suggesting that Detective Adams or Detective Olearchick, who called the Emmett Charter Township Police in the course of running a background check on Frost, knew or had any reason to believe that the information supplied by the Emmett Charter Township Police was false. Finally, we conclude that probable cause would have existed if the affidavit had noted that Frost had been convicted of a marijuana misdemeanor instead of noting that Frost had been arrested for possession of a large quantity of marijuana.
III.
48
We thus find no error in the District Court's order to deny Frost's motion to suppress, and we will affirm the judgment of sentence.
49
LOUIS H. POLLAK, District Judge, concurring.
50
I join the judgment of the court. I also join the court's opinion, subject to the following caveats with respect to Part II(C)(1):
A.
51
I am troubled that Detective Adams, who prepared the affidavit submitted to a district justice to support the application for a search warrant, included in the affidavit a recital that the sniffing dog alerted to Frost's roll of bills but omitted from that recital the fact that the dog did not alert to the suitcase Detectives Adams and Olearchick wanted permission to search. It may well be that Detective Adams had a good faith belief that the dog's failure to alert to the suitcase did not significantly cut against what he and Detective Olearchick felt to be "probable cause" to search the suitcase. But, as a trained law enforcement officer, Detective Adams must have realized that the district justice, whose responsibility it was to decide whether there was probable cause, might have found the dog's disinterest in the suitcase to be relevant to the probable cause issue, even if not dispositive. In this sense, the case at bar is unlike United States v. Calisto, 838 F.2d 711 (3d Cir.1988), cited by the court at footnote 3, supra. In Calisto, to be sure, this court emphasized that the omission from the affidavit "was occasioned not by a scheme to deceive the magistrate about a material fact, but by a desire to withhold a fact not material to the magistrate's task." Id. at 715. But in Calisto what Agent Gilbride omitted from the affidavit--with a view to protecting the identity of the confidential source--was the fact that there were three other law enforcement officers in the information chain between Agent Gilbride and the confidential source; the omission was not of a fact that might tend to cast doubt on the source's reliability. In the instant case, what Detective Adams decided not to tell the district justice was a fact that might be regarded by the district justice as militating against the weight of the other information, contained in the affidavit, which tended to show that Frost might indeed be a drug courier.
52
Notwithstanding my misgivings about Detective Adams' failure to make full disclosure, I agree with the court that, had the omitted information been included in the affidavit, the district justice would nonetheless have justifiably found probable cause and issued the search warrant. Accordingly, although I do not condone Detective Adams' coyness, I think no harm of constitutional magnitude was done.
B.
53
The court points out, in footnote 4, that Frost in his brief on appeal has challenged the finding of probable cause on an additional ground--namely, that American currency is pervasively contaminated with grains of cocaine, with the result that a dog's alert to currency is not indicative that the possessor of the currency is in possession of cocaine. The court notes, however, that Frost did not present this contention to the district court and, therefore, should not be permitted to present it here. I agree. I would only add that the contention, had it been timely made, would not appear to be on its face a frivolous one. In addition to the District of Columbia Circuit's reference to the problem in United States v. $639,558.00 in U.S. Currency, 955 F.2d 712, 714 n. 2 (D.C.Cir.1992) (relied on by Frost and cited by the court in footnote 4) see the Sixth Circuit's comparable reference in United States v. $53,082.00 in U.S. Currency, 985 F.2d 245, 250-51 n. 5 (6th Cir.1993). See also Arthur S. Hayes, Cocaine-Tainted Cash Faulted As Evidence, Wall Street Journal, June 2, 1993, p. B-5. Whether concerns about the reliability of a sniffing dog's alert to currency are soundly based can only be tested by an evidentiary hearing of a sort that Frost did not ask the district court to conduct.
*
Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation
1
To demonstrate reasonable suspicion in support of an investigative stop, the officer must be able "to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880
2
Franks dealt only with misstatements, but we have applied the Franks test to situations where affiants have omitted information from the affidavit. See United States v. Calisto, 838 F.2d 711, 714-16 (3rd Cir.1988). See also, e.g., United States v. Rumney, 867 F.2d 714, 720 (1st Cir.1989) ("[m]aterial omissions may also be the basis for a Franks hearing."), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989); United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984) ("[w]e acknowledge that the rationale of Franks applies to omissions ..."), cert. denied 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980)
3
See United States v. Calisto, 838 F.2d at 715 (declining to hold that Franks allows a challenge to a warrant where omission "was occasioned not by a scheme to deceive the magistrate about a material fact, but by a desire to withhold a fact not material to the magistrate's task")
4
Frost, in his brief before this Court, suggests there was no probable cause because the fact that the dog alerted to the wad of cash means very little. Frost's brief cites to a footnote in a case from the Court of Appeals for the District of Columbia Circuit which surveys evidence indicating that drug sniffing dogs would alert to a high percentage of all cash in circulation. See United States v. $639,558.00 in U.S. Currency, 955 F.2d 712, 714 n. 2 (D.C.Cir.1992). We note that that case made no finding as to the percentage of cash that would alert a drug sniffing dog; the case concerned the "contemporaneous to arrest" requirement for warrantless searches, and the footnote in question is dicta. Moreover, neither the evidence surveyed in that footnote nor similar evidence was presented for scrutiny and cross-examination at the suppression hearing. Nor was the argument that the dog's alert to the cash lacks probity for a probable cause determination presented to the district court. It is our practice that "[w]e generally refuse to consider issues that are raised for the first time on appeal." Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3rd Cir.1976). We thus do not reach the question of whether there would be probable cause if no weight could be attached to the fact that the dog alerted to the cash
| {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2199
___________
United States of America, *
*
Appellee, *
*
v. *
*
Nabil Y.M. Rashid, *
*
Appellant. *
____________ Appeals from the United States
District Court for the
No. 03-2300 Western District of Missouri
____________
United States of America, *
*
Appellee, *
*
v. *
*
Soheir A. Abu Nahia, *
*
Appellant. *
___________
Submitted: November 18, 2003
Filed: September 10, 2004
___________
____________
Before LOKEN, Chief Judge, and McMILLIAN and BEAM, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Nabil Y.M. Rashid and Soheir A. Abu Nahia appeal from final judgments
entered in the United States District Court1 for the Western District of Missouri upon
jury verdicts finding them guilty of conspiracy to commit bank fraud, in violation of
18 U.S.C. §§ 371, 1344, and attempted bank fraud, in violation of 18 U.S.C.
§§ 1344, 2. Defendants were tried together; neither defendant testified at trial. The
district court sentenced each defendant to 63 months imprisonment, 3 years
supervised release, and a special assessment of $200.00. For reversal, Rashid argues
that the district court erred in failing to give a limiting instruction and a good faith
defense instruction. Nahia argues that her conviction for attempted bank fraud cannot
stand because the government failed, as a matter of law, to prove that the cashier’s
check constituted a material false representation. For the reasons discussed below,
we affirm the judgments of the district court.
The district court had original criminal jurisdiction pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Neither
defendant has raised any sentencing issues on appeal.
In January 2002 a federal grand jury charged defendants with conspiracy to
commit bank fraud and attempted bank fraud. The government’s evidence at trial
showed that on January 7, 2002, Rashid and Nahia entered a Kansas City, Missouri,
branch of the Bank of America. Robert Stinson, the branch bank manager,
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
-2-
approached them and asked if they needed assistance. Rashid told Stinson that they
wanted to open a checking account. Stinson took them into his office. Rashid told
Stinson that they wanted to open the account with $15 million and presented him with
what was purported to be a $15 million Bank of America cashier’s check. The
cashier’s check was made payable to “bearer only,” drawn on the First National Bank
of California, dated October 15, 2001, and had a routing number along the bottom
and the signature of an unknown bank official. The cashier’s check was also an
unusual size and printed on a different weight paper than the usual cashier’s check,
and the Bank of America logo on the cashier’s check was incorrect. Nahia told
Stinson that she wanted to put $5 million in the account and receive $10 million back
and that the $10 million for was her uncle. She said that the cashier’s check was the
result of a “big bank deal” in California involving her uncle.
Stinson advised defendants that he needed to verify the cashier’s check through
the bank. Nahia said that she was aware of that because she had completed
transactions like this for even larger amounts in Europe and was familiar with the
process. Rashid occasionally nodded in agreement with Nahia’s statements. Stinson
called the bank’s fraud department and faxed them a copy of the cashier’s check. The
bank’s fraud department determined that the routing number was incorrect, there was
no such bank in California, and the cashier’s check was not negotiable, and advised
Stinson to call the police. Stinson called the police. The police arrived shortly
thereafter and arrested defendants.
The evidence also showed that, two days earlier, on January 5, 2002, Rashid
visited a different Bank of America branch bank in Kansas City, Missouri. He
presented a bank employee, Delisa Biggs, with a photocopy of the $15 million
cashier’s check and asked her if the bank would cash it. Biggs told Rashid that he
would have to come back with the original. Biggs made a copy of the photocopy and
faxed it to the bank’s fraud department. Steven Barfield, the head of corporate
security for the Bank of America’s Kansas City branch banks, testified that he sent
-3-
a fax to all the area branch banks alerting them about the attempt to negotiate the $15
million cashier’s check.
The evidence also showed that, that same day (January 5, 2002), Nahia went
to the First Bank of Missouri in North Kansas City, Missouri. The lobby entrance
was closed. She walked up to the drive-through window and handed the
drive-through teller, Ryan Hauk, a photocopy of the $15 million cashier’s check and
told him that she wanted to cash it. Hauk consulted another bank employee, Lisa
Clark. Clark told Nahia that she would have to open an account before the bank
would cash the check and that she would have to present the original. Nahia said that
she had the original in her car. Because the bank was closed, Clark told Nahia to
come back on Monday. Clark wrote the bank’s phone number on the back of a
receipt and gave it to Nahia.
Dixie Linkey testified that she was a personal banker at the Bank of Weston
(she is now a branch supervisor) and in late 2000 she opened a personal checking
account for Nahia. In December 2001 Nahia faxed Linkey a photocopy of what was
purported to be a $470,000 Bank of America cashier’s check. In the fax cover memo
Nahia asked Linkey to determine whether “this check is true” and whether it was
valid for “this amount of money.” Linkey testified that she thought the cashier’s
check was probably not a good check (because its appearance was unusual) and that
she showed the fax to a Bank of America employee who told her that the cashier’s
check was “not good.” Linkey attempted to send an e-mail memo to Nahia about the
cashier’s check, but she did not know whether Nahia in fact ever received the e-mail
memo.
An FBI forensic computer analyst testified that Rashid had researched cashier’s
checks on the Internet on his home computer on January 5, 2002. However, there was
no evidence that the cashier’s check had been produced on Rashid’s computer.
During a consent search of Nahia’s residence, FBI agents found a photocopy of the
-4-
$15 million cashier’s check between the pages of a baby book; Nahia’s right thumb
print was on the photocopy.
Nahia made two statements to FBI agents following her arrest. (As noted
above, Nahia did not testify at trial.) FBI special agent Kevin McCrary testified that
he interviewed Nahia on January 7, 2002. Nahia told him that she and “her
companion” had attempted to negotiate the $15 million cashier’s check and that her
uncle, Mohammad Atar, a prominent businessman, had given her the cashier’s check
while she was visiting him in Jordan. She said that her uncle had received the
cashier’s check from someone in California and that he told her to take the cashier’s
check to California, cash it, pay $10 million to someone in California, and then return
$5 million to him. She said that she believed the cashier’s check was good based on
her uncle’s representations. On re-cross-examination by Rashid’s defense attorney,
McCrary testified that Nahia said that “her friend, Mr. Rashid,” told her that it would
be cheaper and easier to cash the cashier’s check in Kansas City (rather than go to
California) and that he offered to help her cash the cashier’s check and then selected
the particular branch bank.
FBI special agent Walter Schaefer testified that he interviewed Nahia on
January 8, 2002. Nahia told him that her uncle gave her the cashier’s check and
asked her to get two cashier’s checks, one for $10 million payable to his company in
California, the Abira Association Co., and a second for $5 million payable to him.
FBI special agent John Timmerberg testified that the California secretary of state’s
office searched its corporate files for several variations of that corporate name and
found no record of it.
Each defendant filed a motion for judgment of acquittal, which the district
court denied. Rashid proposed an instruction limiting the admission of Nahia’s
out-of-court statements as evidence against her only. The government proposed a
similar limiting instruction (plaintiff’s proposed instruction No. 8). The district court
-5-
refused to give the proposed limiting instruction, reasoning that Nahia’s out-of-court
statements were not confessions and instead were false exculpatory statements. The
district court also refused to give Rashid’s proposed good faith defense instruction.
The jury found each defendant guilty on both counts. The district court sentenced
each defendant to 63 months imprisonment, 3 years supervised release, and a special
assessment of $200.00. These appeals followed.
LIMITING INSTRUCTION
Rashid first argues that the district court erred in refusing to give his proposed
instruction limiting the admission of Nahia’s out-of-court statements as evidence
against her only. Rashid argues that his Sixth Amendment right to confrontation was
violated by the admission of Nahia’s out-of-court statements, citing Cruz v. New
York, 481 U.S. 186, 189 (1987). Nahia did not testify at trial and thus was not
available for cross-examination. Rashid argues that a limiting instruction was
required because Nahia’s statements incriminated him when linked to other evidence.
Rashid argues that the error was compounded because the instruction on
co-conspirator’s statements (instruction No. 21) expressly instructed the jury to
consider the statements made by a defendant’s co-conspirators “during the existence
of the conspiracy and in furtherance of it” but improperly failed to caution the jury
to consider statements made after the conspiracy ended (and before it began) as
admissible only against the declarant and not against any other defendant. Rashid
argues that the government relied on Nahia’s statements to establish fraudulent intent
and to show that her explanations about the cashier’s check were not credible.
As a preliminary matter, the government argues that Rashid did not object to
the district court’s refusal to give the proposed limiting instruction and therefore the
plain error standard of review applies. On the merits, the government argues that the
district court did not err in refusing to give the proposed limiting instruction because
Nahia’s statements did not even mention Rashid or implicate him in any
-6-
wrong-doing. The government also argues that Nahia’s statements were not admitted
as co-conspirator’s statements and characterizes them as false exculpatory statements
and not as confessions. The government also argues that any error was harmless
because the properly admitted evidence against Rashid was overwhelming.
We review this issue for plain error because, although Rashid proposed a
limiting instruction, he failed to preserve the error for appellate review when he failed
to object when the district court refused to give that instruction. See United States
v. Parisien, 574 F.2d 974, 976 (8th Cir.) (per curiam) (initial tender of alternative
instruction without objecting to failure to give requested instruction does not comply
with Fed. R. Crim. P. 30 and will be reviewed for plain error), cert. denied, 439 U.S.
850 (1978). We also think that plain error review is appropriate because the reason
why Rashid argues the limiting instruction should have been given is a Bruton error,
that is, Nahia’s statement incriminated him when linked to other evidence and was
admissible only if a limiting instruction was given to the jury (and the statement is
redacted to omit any reference to him). See Bruton v. United States, 391 U.S. 123
(1968). However, Rashid did not object to the first reference to him (when McCrary
testified on direct examination that Nahia stated that she and “her companion” had
attempted to negotiate the $15 million cashier’s check that her uncle had given her)
and invited the subsequent references (when McCrary testified on
re-cross-examination that Nahia stated that that “her friend, Mr. Rashid,” told her that
it would be cheaper and easier to cash the cashier’s check in Kansas City (rather than
go to California) and offered to help her cash the cashier’s check and then selected
the particular branch bank). But cf. United States v. Davis, 443 F.2d 560, 564-65 (5th
Cir.) (defense counsel’s cross-examination which elicited agent’s hearsay testimony
about defendant’s supervision of drug addict was invited error which precluded
invoking plain error rule), cert. denied, 404 U.S. 945 (1971). Plain error is error that
is “plain” (that is, clear or obvious), “affects substantial rights” (that is, prejudicial)
and “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732-37 (1993).
-7-
Subsequent to the filing and oral argument of this appeal, the Supreme Court
decided Crawford v. Washington, 124 S. Ct. 1354 (2004), which has changed
Confrontation Clause analysis. In Crawford, the Supreme Court held that the
Confrontation Clause bars the admission of out-of-court testimonial statements unless
the declarants are unavailable and the defendant had a prior opportunity to
cross-examine them. Id. at 1369. The Court did not define “testimonial,” id. at 1374,
but did cite “ex parte testimony at a preliminary hearing” and “[s]tatements taken by
police officers in the course of interrogation,” as examples of “this core class of
‘testimonial’ statement.” Id. at 1364, 1374 (noting that the term “testimonial”
statement includes at a minimum prior testimony at a preliminary hearing, before a
grand jury, or at a former trial, and police interrogations). Crawford did not overrule
Bruton and in fact cited Bruton as an example of a case which was consistent with the
original understanding of the Confrontation Clause, id. at 1367-70, as opposed to the
now-discredited balancing test set forth in Ohio v. Roberts, 448 U.S. 56 (1980).
Here, Nahia’s statements were statements taken by FBI agents in the course of
interrogations and thus testimonial for purposes of Crawford. Nahia was a
non-testifying co-defendant and thus was not available as a witness, but Rashid did
not have a prior opportunity to cross-examine her. The admission of Nahia’s
statements therefore violated Rashid’s Confrontation Clause rights. Rashid failed to
preserve this error for appellate review. As discussed below, we find no plain error
because Nahia’s statements did not expressly or impliedly incriminate Rashid and the
other evidence of Rashid’s guilt was overwhelming. Cf. United States v. McClain,
377 F.3d 219, 222 (2d Cir. 2004) (applying harmless error analysis to Crawford
Confrontation Clause violation).
Crawford may have eclipsed Bruton. Nonetheless, applying our pre-Crawford
analysis to Rashid’s claim of Bruton error, we find no Bruton violation here and
therefore hold that the district court did not err in refusing to give the proposed
limiting instruction.
-8-
In Bruton the Supreme Court held that in a trial where two or
more defendants are tried jointly, the admission of a nontestifying
codefendant’s confession that expressly implicates the defendant
violates the defendant’s Sixth Amendment confrontation rights, even if
the district court gave the jury limiting instructions to consider the
confession only against the codefendant who confessed. However, “[i]f
a codefendant’s confession does not incriminate the defendant on its
face, but does so only when linked to additional evidence, it may be
admitted if a limiting instruction is given to the jury and the defendant’s
name is redacted from the confession." Furthermore, Bruton does not
apply at all when a codefendant’s statements do not incriminate the
defendant either on their face or when considered with other evidence.
United States v. Melina, 101 F.3d 567, 569-70 (8th Cir. 1996) (citations omitted).
Nahia’s first statement referred to “her companion” and then to “her friend,
Mr. Rashid”; her second statement did not mention Rashid at all (either by name or
by relationship). Nahia’s first statement expressly mentions Rashid, but it does not
on its face incriminate him. The statement does not refer to the charged crimes
(conspiracy and attempted bank fraud) and does not refer to any wrong-doing. See,
e.g., Melina, 101 F.3d at 570 (statements expressly mention defendant but are on their
face not incriminating); United States v. Flaherty, 76 F.3d 967, 972 (8th Cir. 1996)
(same) (abrogation on other grounds noted in United States v. Rea, 223 F.3d 741, 743
(8th Cir. 2000)); United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir. 1995) (same);
see also Marsh v. Richardson, 481 U.S. 200, 213 n.2 (1987) (Stevens, J., dissenting)
(noting possibility that “there are some codefendant confessions that expressly
mention the defendant but nonetheless need not be excluded under Bruton because
they are not prejudicial”). Compare United States v. Richards, 241 F.3d 335, 341 (3d
Cir.) (noting co-defendant’s reference identifying “his friend” as one of the robbers
was sharply incriminating), cert. denied, 533 U.S. 960 (2001). Bruton is not
applicable because this statement by itself does not implicate Rashid in any
wrong-doing.
-9-
Even assuming that this statement is incriminating when linked with other
evidence and that the district court should have given a limiting instruction to the jury
(and redacted Rashid’s name from the statement), Rashid failed to show that the
district court’s failure to give a limiting instruction was prejudicial or resulted in a
miscarriage of justice and thus constituted plain error. The evidence against Rashid
was overwhelming. Evidence in the record independent of Nahia’s statements
showed that on January 7, 2002, Rashid went with Nahia to a Bank of America
branch bank and that Rashid told a bank employee that they wanted to open a
checking account, presented the $15 million cashier’s check and attempted to cash
it; on January 5, 2002, Rashid went to another Bank of America branch bank with a
copy of the $15 million cashier’s check and asked whether the bank would cash it;
on January 5, 2002, Rashid researched cashier’s checks on the Internet on his home
computer; and many specific physical characteristics of the $15 million cashier’s
check that showed that it was fraudulent.
As an evidentiary matter, we note that Nahia’s statements were not admitted
as co-conspirator’s statements under Fed. R. Evid. 801(d)(2)(E). Statements or
admissions made by a co-conspirator after apprehension, to law enforcement officials,
are not “in furtherance” of the conspiracy. E.g., United States v. Alonzo, 991 F.2d
1422, 1425 (8th Cir. 1993). Nahai’s post-arrest, custodial statements made to FBI
agents were not intended to further a successful conspiracy and thus were not
admissible against Rashid as co-conspirator’s statements. We also note that
co-conspirator’s statements are not testimonial for purposes of Crawford analysis.
See United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004); cf. Evans v. Luebbers,
371 F.3d 438,445 (8th Cir. 2004) (hearsay statements admissible as statements made
for purpose of obtaining medical diagnosis and as evidence of mental state are not
testimonial for purposes of Crawford analysis (assuming for purposes of analysis that
Crawford applies retroactively and on collateral attack)).
-10-
GOOD FAITH DEFENSE INSTRUCTION
Rashid next argues that the district court erred in refusing to give his proposed
good faith defense instruction. Because Rashid did not object to the district court’s
refusal to give the proposed instruction, we review for plain error. Rashid argues that
good faith is a complete defense to crimes of intent and that the evidence showed that
he had a good faith belief that the $15 million cashier’s check was legitimate. He
argues that there was no evidence that he ever lied about any person, place or thing
or attempted to conceal any facts from any person or that any bank employee ever
told him that the $15 million cashier’s check was fraudulent. The government argues
that there was no evidence that Rashid either made an honest mistake or had a good
faith belief that the $15 million cashier’s check was legitimate and that this is
essentially an argument about the sufficiency of the evidence of fraudulent intent.
“It is true that a defendant is entitled to a jury instruction if the request is
timely, the evidence supports the instructions, and the proffered instruction correctly
states the law.” United States v. Sanders, 834 F.2d 717, 719 (8th Cir. 1987) (citation
omitted). However, “a defendant is not entitled to a particularly worded instruction
where the instructions given adequately and correctly cover the substance of the
requested instruction.” United States v. Lisko, 747 F.2d 1234, 1238 (8th Cir. 1984).
In Sanders the defendant argued that the district court erred in refusing to give his
requested good faith instruction with respect to a criminal conversion charge and a
charge of making a false statement to a government agency. We found no error in
that case because the instructions given regarding the need to find specific intent to
defraud in order to find the defendant guilty of criminal conversion were sufficient
to cover the good faith defense. 834 F.2d at 719, citing Lisko, 747 F.2d at 1237-38
(citing United States v. Nance, 502 F.2d 615, 619-20 (8th Cir. 1974) (instructions
defining knowing and willful fraudulent scheme made clear that good faith would be
absolute defense), cert. denied, 420 U.S. 926 (1975)).
-11-
We find no error, much less plain error, in the district court’s refusal to give the
requested good faith instruction. “The essence of a good-faith defense is that one
who acts with honest intentions cannot be convicted of a crime requiring fraudulent
intent.” United States v. Sherer, 653 F.2d 334, 338 (8th Cir.), cert. denied, 454 U.S.
1034 (1981). Here, the instructions given were sufficient to cover the essence of the
good faith defense. The instructions given stated that in order to find the defendant
or defendants guilty of attempted bank fraud the jury had to find, beyond a reasonable
doubt, that each defendant individually, voluntarily and knowingly, intentionally
attempted to execute a scheme to obtain monies or funds owned by a financial
institution by means of material fraudulent or false representations with intent to
defraud. Instruction Nos. 22, 24; see Sherer, 653 F.2d at 338 (holding adequate for
purposes of good faith defense that jury was instructed that it must find intent to
defraud beyond a reasonable doubt). Other instructions given stated that mere
presence or mere association did not prove that a defendant had joined the charged
conspiracy or become an aider or abettor. Instruction Nos. 17, 24.
MATERIALITY
Nahia argues that the evidence was insufficient to prove materiality for
purposes of bank fraud. She argues that the government failed to prove as a matter
of law that the $15 million cashier’s check constituted a material false representation
because the check was so obviously fraudulent that no bank official could have been
influenced to take any action in reliance on it. The government argues that the
evidence was sufficient to establish materiality and notes that, as the district court
instructed the jury, materiality does not depend upon whether the financial institution
was actually deceived.
We review a challenge to the sufficiency of the evidence by examining the
record in the light most favorable to the government and resolve all conflicts in the
government’s favor. E.g., United States v. Wonderly, 70 F.3d 1020, 1023 (8th Cir.
-12-
1995), cert. denied, 517 U.S. 1146 (1996). “The materiality inquiry focuses on
whether the false statement had a natural tendency to influence or was capable of
influencing the [financial institution]. Materiality does not require proof that the
[financial institution] actually relied on the statement.” United States v. Baker, 200
F.3d 558, 561 (8th Cir. 2000) (citations omitted) (discussing materiality for purposes
of making a false statement to the government in violation of 18 USC § 1001). Here,
the nature of the item itself was evidence of materiality. The evidence showed that
defendants presented bank employees with a fraudulent Bank of America cashier’s
check and made false statements about the check in order to influence the bank to
negotiate it. The fact that the cashier’s check was obviously fraudulent (apparently
the check was the wrong size and printed on the wrong type of paper, the check was
made out to bearer only, the bank logo was wrong, and the perforation was in the
wrong place) does not mean that it was not material, that is, that it did not have a
natural tendency to influence the bank or was not capable of influencing the bank.
The fact that the bank was not actually influenced or actually deceived does not mean
that the check and defendants’ false statements about the check were not material.
Accordingly, the judgments of the district court are affirmed.
______________________________
-13-
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221 F.2d 326
SCHWEGMANN BROTHERS GIANT SUPER MARKETS et al., Appellants,v.HOFFMANN-LA ROCHE, Inc., Appellee.HOFFMANN-LA ROCHE, Inc., Appellant,v.SCHWEGMANN BROTHERS GIANT SUPER MARKETS et al., Appellees.
No. 15350.
United States Court of Appeals Fifth Circuit.
April 22, 1955.
Saul Stone, New Orleans, La., Paul O. H. Pigman, Wisdom & Stone, John Minor Wisdom, New Orleans, La., for appellants.
Joseph H. Stamler, Newark, N. J., Murray F. Cleveland, New Orleans, La., Maurice W. Levy, Nutley, N. J., Melvin P. Antell, Newark, N. J., on the brief, for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.
HOLMES, Circuit Judge.
1
This appeal is here in a double aspect, first, on an appeal from an order denying the petition of Hoffmann-La Roche, Inc., to punish the Schwegmann Brothers for contempt; and, second, on an appeal by Schwegmann Brothers from an order dated June 23, 1954, amending a prior injunction entered by the court against them. This is a slightly different phase of the controversy that has been existing between Schwegmann Brothers and the Fair Trade Laws. This case comes up in a way about to be stated, and, since both sides have appealed, Hoffmann-La Roche, Inc., will be referred to as the plaintiff and Schwegmann Brothers Giant Super Markets, et al., will be referred to as the defendants.
2
In a suit brought by the plaintiff to prevent the defendants from selling the plaintiff's drug products at less than fixed prices, a judgment was rendered for the plaintiff which permanently restrained the defendants from in any manner or by any means, directly or indirectly, advertising for sale, or selling, any of certain named commodities manufactured by and bearing the trade-mark, brand, or name of plaintiff, at prices less than those stipulated in contracts entered into by plaintiff with other retailers pursuant to the Louisiana Fair Trade Law, LSA-R.S. 51:391 et seq. or at prices less than those that might be shown in any future minimum-retail-price schedules issued by plaintiff in connection with such contracts.
3
Jurisdiction of this cause was retained for the purpose of giving full effect to said judgment and for the purpose of making such further orders and decrees, or taking such further action, if any, as might become necessary or appropriate to carry out and enforce said judgment.
4
After a fair hearing on the petition to punish the defendants for contempt, the court below denied the petition and amended its former judgment so as to state the permissible minimum prices therein. D.C., 122 F.Supp. 781. We find no reversible error in the rulings of the trial court because, among other reasons, the customer's awareness of the name of the drug in his prescription is not an essential factor in determining whether the trade name or good will of the manufacturer is used if the prescription designates the drug by the manufacturer's name or trade-mark. The amendment of the decree of injunction was proper, under Rule 65 of the Federal Rules of Civil Procedure, 28 U.S.C.A., because an injunction must describe specifically and in reasonable detail, not by reference to the complaint or some other document, the act or acts sought to be restrained. Nasif v. United States, 5 Cir., 165 F.2d 119.
5
What we are doing may be contrary to the sense of justice of the writer, who retains the views expressed by him in his dissent in Schwegmann Brothers Giant Super Markets v. Eli Lilly & Co., 5 Cir., 205 F.2d 788; and other members of the court may not like the so-called fair-trade laws and think it wrong for them to exist; but the Supreme Court denied certiorari in the just-cited case, which denial was not a decision on the merits, but it left this court's decision as the law of the Fifth Circuit until overruled by this court enbanc or by the Supreme Court on certiorari in a subsequent case. This is not true in Texas, however, because the legislature of that state has enacted no similar so-called fair-trade law. It is not a federal law but a Louisiana statute that controls our decision in this case. The federal statute simply exempts the Louisiana statute from the restrictions of the federal anti-trust statutes. Our jurisdiction in this case as a federal court depends wholly upon diversity of citizenship between the parties and the requisite amount. If this were a resident corporate plaintiff instead of a nonresident corporation, this suit might have to be brought in a state court of Louisiana. The applicable federal statute is the one that exempts the parties to this price-fixing contract from the prohibitions of the federal anti-trust statutes. See the Act of July 14, 1952, 66 Stat. 631, 632, 15 U.S.C.A. § 45, known as the McGuire Act. The primary purpose of the latter act was to change as to future cases the result reached by the Supreme Court in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L. Ed. 1035.
6
A sine-qua-non of the constitutionality of the Louisiana Fair Trade Law is the right of a non-signer to remove the trade-mark of the manufacturer and sell the commodity at his own price. This was specifically held in the Old Dearborn case, Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 195, 57 S.Ct. 139, 145, 81 L.Ed. 109, but there was a proviso to that concession, which was: "Provided he can do so without utilizing the good will of the latter as an aid to that end"; and he cannot do that when a customer comes in with a prescription that designates a trade-marked product. The customer thereby impliedly adopts the prescription whether he knows what is in it or not. Only the Congress, the Supreme Court, or the several state legislatures, can grant relief from this anomalous situation, which makes possible vertical monopolistic price-fixing, even for vaccines against polio, by exempting dealers and manufacturers alike from the pains and penalties of the federal anti-trust act. 66 Stat. 631, 15 U.S. C.A. § 45.
7
The judgment appealed from is affirmed on both appeals.
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746 F.2d 1489
dChisholm-Ryder Co., Inc.,v.Mecca Brothers, Inc.
NOS. 83-745, 83-774
United States Court of Appeals,federal Circuit.
JUL 25, 1984
Appeal From: Ct/W.NY
1
DCt/W.NY.
2
---------------
d Denotes patent appeals
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4096
SAMUEL S. NICHOLS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-121)
Submitted: June 26, 2001
Decided: July 31, 2001
Before WILKINS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Pamela L. Kandzari, Nicholas P. Mooney, II, ALLEN, GUTHRIE &
MCHUGH, Charleston, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, John J. Frail, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. NICHOLS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Samuel S. Nichols appeals his conviction of possession with intent
to distribute marijuana, in violation of 21 U.S.C.A. § 841 (West 1999
& Supp. 2001). Nichols was arrested on June 22, 1999, moments after
he retrieved a package containing marijuana from the doorstep of his
girlfriend’s residence in Charleston, West Virginia, and placed it in
the trunk of his vehicle. The package was delivered by a law enforce-
ment officer posing as a United Parcel Service (UPS) driver after a
search of the package at the UPS facility revealed over eleven kilo-
grams of marijuana.
Prior to this incident, on June 16, 1999, a UPS driver attempted to
deliver a package to a different address in Charleston. At the destina-
tion address, the occupants of the premises stated that the addressee
did not live there. As the driver walked back to his truck, a black
male, later identified as Nichols, approached the driver and stated that
he would make sure the package was properly delivered. This person
had the name of the addressee written on a piece of paper, but pro-
duced no other identification. The UPS driver refused to give the
package to the individual, and returned it to the UPS facility. The
package was subsequently searched pursuant to a warrant, and over
eleven kilograms of marijuana was discovered. After Nichols’ arrest,
on July 9, 1999 a West Virginia state trooper and a DEA agent dis-
played a photo array to the UPS driver who had encountered the black
male on June 16th. The array consisted of nine pictures of black
males, arranged in three rows of three photos each. The driver quickly
selected the photo of Nichols as the person who attempted to obtain
the package on June 16th.
On appeal, Nichols contends that the district court erred in allow-
ing the UPS driver to identify Nichols in court because the identifica-
tion was tainted by the suggestive pretrial identification; and in
UNITED STATES v. NICHOLS 3
admitting the evidence of the encounter between Nichols and the UPS
driver on June 16, 1999 under Federal Rule of Evidence 404(b). Find-
ing no error, we affirm.
Courts engage in a two-step analysis when a defendant challenges
an identification procedure. First, the defendant "must prove that the
identification procedure was impermissibly suggestive. Once this
threshold is crossed, the court then must determine whether the identi-
fication was nevertheless reliable under the totality of the circum-
stances." Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(citations omitted). If the court concludes the confrontation procedure
was not impermissibly suggestive, the inquiry ends. United States v.
Bagley, 772 F.2d 482, 492 (9th Cir. 1985); cf. Harker v. Maryland,
800 F.2d 437, 444 (4th Cir. 1986) (ending analysis after finding pho-
tographic array and show-up not impermissibly suggestive). If, how-
ever, the court finds the identification impermissibly suggestive, the
court then determines whether under the totality of the circumstances,
"there is ‘a very substantial likelihood of irreparable misidentifica-
tion.’" Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting Sim-
mons v. United States, 390 U.S. 377, 384 (1968)).
Nichols argues on appeal that the pretrial photo identification was
impermissibly suggestive because the photograph of Nichols had a
different appearance than that of the other photos in the array, and
because his appointed counsel was not permitted to be present at, or
even notified of, the identification procedure. We find Nichols’ argu-
ment that he was entitled to have his counsel present at the photo
identification without merit. The Supreme Court has specifically
declined to extend the right to counsel to include presence at photo-
graphic displays to a potential witness. See United States v. Ash, 413
U.S. 300, 321 (1973). Our review of the record, including a copy of
the photo array presented to the UPS driver, convinces us that the dis-
play and the manner in which it was presented to the driver were not
suggestive, as it did not "increase the likelihood of misidentification."
Neil v. Biggers, 409 U.S. 188, 198 (1972). Moreover, we also con-
clude that the driver’s identification of Nichols as the person who
approached him on June 16, 1999 was reliable. Manson, 432 U.S. at
114; United States v. Johnson, 114 F.3d 435, 441 (4th Cir. 1997). The
district court properly allowed the in-court identification.
4 UNITED STATES v. NICHOLS
Evidence of other acts is not admissible to prove bad character or
criminal propensity. Fed. R. Evid. 404(b). Such evidence is admissi-
ble, however, to prove "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Id.; see
United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). We
review a district court’s determination of the admissibility of evidence
under Rule 404(b) for abuse of discretion, applying a four-factor anal-
ysis. Id. at 995, 997. A district court will not be found to have abused
its discretion unless its decision to admit evidence under Rule 404(b)
was arbitrary or irrational. See United States v. Haney, 914 F.2d 602,
607 (4th Cir. 1990). Limiting jury instructions explaining the purpose
for admitting evidence of prior acts and advance notice of the intent
to introduce prior act evidence provide additional protection to defen-
dants. See Queen, 132 F.3d at 997-98. Our review of the record in this
case convinces us that the trial court did not abuse its discretion in
admitting the testimony of the UPS driver describing Nichols’ attempt
to obtain the undelivered package on June 16th.
Accordingly, we deny Nichols’ motion for leave to transmit an
original exhibit and affirm his conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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206 P.3d 548 (2009)
STATE of Kansas, Appellant,
v.
Kristin Marie TOLER, Appellee.
No. 99,236.
Court of Appeals of Kansas.
May 1, 2009.
*549 Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Stephen N. Six, attorney general, for appellant.
No appearance by appellee.
Before MARQUARDT, P.J., MALONE and CAPLINGER, JJ.
MALONE, J.
The State appeals the district court's decision to acquit Kristin Marie Toler of criminal possession of a firearm on school property. The State appeals upon a question reserved and asks whether school must be in session or whether children must be present on the school property in order to find a person guilty of criminal possession of a firearm in violation of K.S.A. 21-4204(a)(5). We hold that a person may be found guilty of criminal possession of a firearm on school property in violation of K.S.A. 21-4204(a)(5) even when school is not in session or children are not *550 present on the school property at the time the offense is committed.
On August 21, 2006, at approximately 4:25 a.m., Toler was on the property of Shawnee Mission West High School in Overland Park. Toler had parked her car in the school parking lot, and her dog was running loose on the school grounds. Toler was placing items into the trunk of her car and into an athletic bag on the ground next to her car when Officer Heavin, of the Overland Park Police Department, approached Toler about the fact that her dog was not on a leash. Heavin looked down into the athletic bag next to Toler's car and observed a dark blue case that he recognized as a handgun case. When Heavin asked Toler what was in the case, she stated that it contained a handgun.
Heavin recovered a Beretta 9 mm handgun from Toler and informed her it was illegal to have a firearm on school property. The gun was not loaded, the magazine clip was empty, and Toler did not have any ammunition in her possession. Toler told Heavin she intended to put the gun in the trunk of her car while she went for a run with her dog, and she did not know it was against the law to possess a firearm on school property. Heavin issued Toler a citation for the handgun violation and released her. At the time of the incident, classes were not in session and there was no school-sponsored activity on the property.
On September 8, 2006, the State charged Toler with one count of criminal possession of a firearm on school property in violation of K.S.A. 21-4204(a)(5), a class B misdemeanor. The parties submitted the case to the district court on stipulated facts, which stated in part:
"1. On Monday, August 21, 2006, at approximately 4:25 am, Overland Park, Kansas police officers contacted the defendant, Kristin Marie Toler, on the property of Shawnee Mission West High School, 8500 Antioch Road, Overland Park, Johnson County, Kansas.
"2. Shawnee Mission West High School is a building and grounds used by unified school district of Shawnee Mission (Shawnee Mission School District), for student instruction and attendance, and extracurricular activities of pupils enrolled in grades 9 through 12.
"3. Kristin Marie Toler is not a law enforcement officer and she does not qualify for any of the exceptions listed in K.S.A. 21-4204(b).
"4. Toler had her dog running loose on the school property and she had her car parked in the school parking lot, which is also school property.
....
"6. Officer Heavin approached Toler to discuss several municipal ordinance violations pertaining to her dog. Officer Heavin looked down into the open athletic bag [in which] Toler had been placing items and observed a dark blue case that Officer Heavin recognized from his training and experience as a handgun case.
....
"8. Officer Heavin recovered from Toler a Beretta 9 mm firearm, model 92FS, serial number BER427588. The gun was not loaded, the magazine was empty and Toler did not have any ammunition in her possession.
"9. Toler stated that she was planning on putting the gun into the trunk of her car and then go for a run with her dog. Toler was cited and released. Toler stated that she did not know it was against the law to possess a firearm on school property.
....
"11. Classes were not in session for student instruction or attendance or extra curricular activities of pupils enrolled in kindergarten or any grades 1 through 12 or any regularly scheduled school sponsored activity or event on the school property when Toler was present with the firearm."
Toler filed a brief in support of acquittal and the State filed a response. Toler argued that she did not violate K.S.A. 21-4204(a)(5) because the statute requires that classes be in session at the time of the offense. She compared the language of K.S.A. 21-4204(a)(5), which is silent as to whether school must be in session, to the language of K.S.A.2008 Supp. 65-4161 and K.S.A.2008 *551 Supp. 65-4163, which expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property. Toler maintained that the legislature's decision not to use the same language in the criminal possession of a firearm statute manifested the legislature's intent that school must be in session in order to violate K.S.A. 21-4204(a)(5). Alternatively, Toler contended that the statute was unconstitutionally vague.
The district court held a hearing on August 1, 2007, and heard arguments of counsel. Following the hearing, the district court acquitted Toler of criminal possession of a firearm on school property, finding that because school was not in session at the time of the alleged offense, she had not violated the statute. Specifically, the district court concluded: "The Court further finds that the Legislative intent of K.S.A. 21-4204(a)(5), requires that school be in session or classes [are] actually being held at the time of the offense or that children must be present within the building or on the property during the time of the alleged offense." Because the district court decided the issue based on statutory interpretation, the court did not reach Toler's constitutional argument. The State reserved the question for appeal and timely filed a notice of appeal.
Jurisdiction
The State has filed this appeal upon a question reserved by the prosecution pursuant to K.S.A. 22-3602(b)(3). An appeal on a question reserved by the prosecution will not be entertained unless it involves a question of statewide interest and is vital to a correct and uniform administration of the criminal law. No formal procedural steps are required by K.S.A. 22-3602(b)(3) for the State to appeal on a question reserved. All that is necessary for the State to reserve a question for appeal is to make a proper objection or exception at the time a judgment is entered by the district court, laying the same foundation for appeal that a defendant is required to lay. State v. Tremble, 279 Kan. 391, 393-94, 109 P.3d 1188 (2005).
Here, the State reserved the question when the district court granted Toler's motion for acquittal. The State argues that resolution of this issue would provide helpful precedent, given the number of school districts in Kansas and the legislature's intent to regulate the presence of firearms on school property. As the State noted in its brief, during the 2006-07 school year, the Kansas Department of Education reported that more than 460,000 children in grades kindergarten through twelve attended public schools in Kansas. There are approximately 300 school districts across Kansas' 105 counties.
This court has previously recognized that the legislature has acknowledged a greater need to deter individuals from carrying guns onto school property than in other public places. State v. Bennett, 20 Kan.App.2d 767, 776, 892 P.2d 522 (1995). Because the State is correct that the answer to the question reserved would provide helpful precedent to the bench, bar, and law enforcement personnel throughout this state, we will entertain the State's appeal. See State v. Skolaut, 286 Kan. 219, 224-26, 182 P.3d 1231 (2008) (discussing questions reserved).
Interpretation of K.S.A. 21-4204(a)(5)
The State claims the district court erroneously added an element to the crime of criminal possession of a firearm that is not contained in the statute by finding that school must be in session for a violation of the statute to occur. According to the State, the language of K.S.A. 21-4204(a)(5) is clear and unambiguous. Thus, the State claims the district court should not have resorted to the principles of statutory construction by comparing the language of K.S.A. 21-4204(a)(5) regarding criminal possession of a firearm on school property to the language of K.S.A. 2008 Supp. 65-4161 and K.S.A.2008 Supp. 65-4163 regarding the possession of drugs within 1,000 feet of school property. Toler did not file a brief on appeal.
Interpretation of a statute is a question of law over which an appellate court has unlimited review. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
The most fundamental rule of statutory construction is that the intent of the *552 legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court's first task is to "ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning." State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
"When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent." In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
Pursuant to K.S.A. 21-4204(a)(5), criminal possession of a firearm is
"possession of any firearm by any person, other than a law enforcement officer, in or on any school property or grounds upon which is located a building or structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades 1 through 12 or at any regularly scheduled school sponsored activity or event."
Pursuant to K.S.A. 21-4204(b), subsection (a)(5) shall not apply to:
"(1) Possession of any firearm in connection with a firearms safety course of instruction or firearms education course approved and authorized by the school;
"(2) any possession of any firearm specifically authorized in writing by the superintendent of any unified school district or the chief administrator of any accredited nonpublic school;
"(3) possession of a firearm secured in a motor vehicle by a parent, guardian, custodian or someone authorized to act in such person's behalf who is delivering or collecting a student; or
"(4) possession of a firearm secured in a motor vehicle by a registered voter who is on the school grounds, which contain a polling place for the purpose of voting during polling hours on an election day." K.S.A. 21-4204(b).
K.S.A.2008 Supp. 65-4161 and K.S.A.2008 Supp. 65-4163, unlike the criminal possession of a firearm statute, expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property:
"Nothing in this subsection shall be construed as requiring that school be in session or that classes are actually being held at the time of the offense or that children must be present within the structure or on the property during the time of any alleged criminal act. If the structure or property meets the description above, the actual use of that structure or property at the time alleged shall not be a defense to the crime charged or the sentence imposed." K.S.A.2008 Supp. 65-4161(d); K.S.A.2008 Supp. 65-4163(b).
We agree with the State that the language of K.S.A. 21-4204(a)(5) is clear and unambiguous and we need not resort to principles of statutory construction to ascertain the legislative intent. Whether school is in session is irrelevant to the commission of the crime of criminal possession of a firearm on school property. By ruling that school must be in session or that children must be present on the school property for a violation of K.S.A. 21-4204(a)(5) to occur, the district court added language to the statute not readily found therein.
K.S.A. 21-4204(b) provides express exceptions to the prohibition against firearms on school property. Those exceptions do not provide for a defense based upon the fact that school is not in session or that children are not present on the school property at the time of the offense. While the legislature could have included language requiring that school be in session as an element of the offense, the legislature did not do so, probably for good reason. As the State points out in its brief, under the district court's interpretation of K.S.A. 21-4204(a)(5), a sniper arriving on school grounds to initiate a school *553 shooting would not actually violate the statute until a student arrived on the property or until classes were in session.
We also agree with the State that the district court placed too much weight on the fact that K.S.A.2008 Supp. 65-4161 and K.S.A.2008 Supp. 65-4163 expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property. The absence of this language from K.S.A. 21-4204(a)(5) does not establish a legislative intent that school must be in session to violate the criminal possession of a firearm statute.
In summary, K.S.A. 21-4204(a)(5) is clear and unambiguous. The possession of any firearm on school property upon which a building is located that is used for the instruction of students is sufficient to trigger a violation of the statute. See PIK Crim.3d 64.07. Here, the district court resorted to unnecessary statutory construction and added language to the statute not readily found therein. Under the plain language of K.S.A. 21-4204(a)(5), a person may be found guilty of criminal possession of a firearm on school property, even when school is not in session or children are not present on the school property at the time the offense is committed.
Appeal sustained.
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116 P.3d 399 (2005)
STATE v. WILLIS
No. 75998-7.
The Supreme Court of Washington, Department I.
July 12, 2005.
Petition for review denied.
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28 So.3d 49 (2010)
J.A.D.
v.
STATE.
No. 1D09-5021.
District Court of Appeal of Florida, First District.
February 16, 2010.
Decision Without Published Opinion Affirmed.
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566 F.2d 1168
Burger King Corp.v.Family Dining, Inc.
No. 77-1467
United States Court of Appeals, Third Circuit
12/7/77
E.D.Pa., 426 F.Supp. 485
AFFIRMED
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13 N.Y.3d 713 (2009)
PEOPLE
v.
ATKINSON.
Motion No: 2009-1111
Court of Appeals of New York.
Decided December 1, 2009.
Motion for leave to appeal denied.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30241
Plaintiff-Appellant,
v. D.C. No.
CR-06-00434-1-KI
EDMUNDO LOPEZ-VELASQUEZ,
ORDER
Defendant-Appellee.
Filed March 8, 2010
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it
is ordered that this case be reheard en banc pursuant to Circuit
Rule 35-3. The three-judge panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit.
4245
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190 Mich. App. 571 (1991)
476 N.W.2d 649
BOWIE
v.
ARDER
Docket No. 130547.
Michigan Court of Appeals.
Decided August 6, 1991, at 9:15 A.M.
Miner, Spuhler & Miner, P.C. (by Earl R. Spuhler), for the plaintiff.
Thomas R. McCombs, for the defendant.
Before: HOOD, P.J., and JANSEN and G.S. ALLEN,[*] JJ.
PER CURIAM.
On May 23, 1990, plaintiff, mother of Carolyn Bowie, deceased, and the maternal grandmother of Ashlee Arder Bowie, filed a petition in the circuit court seeking custody of Ashlee pursuant to the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq. Following a hearing on June 11, 1990, the circuit court dismissed *572 the action for lack of subject-matter jurisdiction and referred the case to the probate court. Plaintiff appeals as of right, alleging that the trial court erred in concluding that it did not have subject-matter jurisdiction. We disagree and affirm.
According to plaintiff's petition, Ashlee's mother died on December 9, 1988. Plaintiff assumed the care and custody of Ashlee from that date until April 30, 1990, when defendant allegedly took Ashlee from plaintiff under the ruse of giving his daughter a ride in his new automobile. Defendant did not return Ashlee to plaintiff.
The issue presented in the present case is whether the circuit court erred in concluding that it lacked subject-matter jurisdiction to hear an original action brought by a third party where the child resides with her natural father, where no divorce or separate maintenance proceedings have been instituted, and where no finding of parental unfitness has been made in an appropriate proceeding.
Our Supreme Court in Ruppel v Lesner, 421 Mich 559, 565-566; 364 NW2d 665 (1984), set forth a circuit court's authority to entertain a third-party complaint for custody. The Ruppel Court summarized:
We conclude that where a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents' objection. The Child Custody Act does not create substantive rights of entitlement to custody of a child. Rather, it creates *573 presumptions and standards by which competing claims to the right of custody are to be judged, sets forth procedures to be followed in litigation regarding such claims, and authorizes the forms of relief available in the circuit court. While custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody "dispute" by simply filing a complaint in circuit court alleging that giving custody to the third party is in the "best interests of the child." When, as in this case, the third parties are close relatives of the child, we must remember that, except for limited visitation rights, grandparents have no greater claim to custody than any other relative or indeed any other persons.
The import of the Ruppel decision is to limit the authority of the circuit court. The Ruppel Court held that the Child Custody Act does not give third parties the right to file original child custody actions in circuit court.
On the basis of the holding in Ruppel, we affirm the trial court's finding that it lacked subject-matter jurisdiction. We interpret the Ruppel decision as holding that once judicial intervention has already taken place, the court may award custody to third parties. Otherwise, there is no authority allowing a nonparent to create a child custody dispute. Hastings v Hastings, 154 Mich App 96, 100-101; 397 NW2d 232 (1986); Long v Branch 172 Mich App 81, 86-87; 431 NW2d 835 (1988); Marshall v Beal, 158 Mich App 582, 589; 405 NW2d 101 (1986).
Affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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46 F.3d 1143
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.Juan Manuel MUNOZ-MARQUEZ, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 92-70507.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 5, 1994.Decided Jan. 24, 1995.
Before: NOONAN, O'SCANNLAIN and LEAVY, Circuit Judges.
1
MEMORANDUM*
2
Juan Manuel Munoz-Marquez appeals the decision of the Board of Immigration Appeals (the Board) denying his application for relief from deportation under 8 U.S.C. Sec. 1182(c). We affirm the Board.
FACTS
3
Munoz-Marquez, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident on May 27, 1984. On April 22, 1988, he pleaded guilty to an indictment charging him with distribution of over 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B) and was sentenced to five years in prison.
4
The Immigration and Naturalization Service (the INS) brought deportation proceedings against him in 1991. The Immigration Judge found him to be deportable. He asked and received the continuation of his hearing in order to seek admission through the exercise of the Attorney General's discretion conferred by 8 U.S.C. Sec. 1182(c). At the time of this hearing Munoz-Marquez was 22 years old. He declared that he had first come to the United States as an infant in 1970 and had continually returned to the United States from Mexico before becoming a lawful resident in 1984. He lived in Auburn, Washington. His parents lived in San Jose, California, and he kept in touch with them by regular phone calls and by visiting them "every three or four months." In the same way he kept in touch with his sister Marina and her family in Santa Ana, California, by telephone and occasional visits. He worked as a roofer and his employer testified to his good work in this capacity. He stated that while in prison he studied for his GED and took part in Bible study and sports. He explained his participation in the drug deal of which he was convicted in terms of being brought into it casually by a school friend he had met in Seattle.
5
Following the hearing, the INS submitted a copy of the presentence report in the case in which Munoz-Marquez had been convicted. The Immigration Judge marked this report as Exhibit 16, and put on it her initials with the additional notation "per 10/4/91," a reference to the October 4, 1991, hearing that at least suggested that she had ruled on the report's admissability at that time. In any event, the report was served on the petitioner, and petitioner made no objection to the report being received. The report described Munoz-Marquez as counting $30,000 received in exchange for one kilogram of cocaine.
6
The Immigration Judge declined to exercise discretion in favor of the petitioner. The Board affirmed her decision. Munoz-Marquez appeals.
ANALYSIS
7
The heart of Munoz-Marquez's appeal is the contention that the Board erroneously considered in evidence the presentence report used at the time of his criminal conviction. The Board relied on the account that this report furnished of his substantial participation in order to draw the conclusion that he was not rehabilitated because he was unwilling to recognize his real involvement in the crime.
8
The general rule is clear that the Board may use hearsay if it is probative and its admission is fundamentally fair. Cunanan v. INS, 856 F.2d 1173, 1374 (9th Cir.1988); Beliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983). Here Munoz-Marquez failed to show that he had challenged the presentence report at the time of his sentencing, so that, at the time he had an opportunity to dispute the hearsay contained in it, he failed to do so. He now argues that he had no opportunity to dispute the presentence report in this proceeding because it was submitted by the INS at the conclusion of the hearing and not relied on by the Immigration Judge. The record is to the contrary. The Immigration Judge received the report, marked it as an exhibit, and had it before her as part of the evidence. The petitioner made no objection to the admission of the report. The Board properly relied on it in exercising its discretion to deny him relief.
9
The petition for review is DISMISSED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided for by 9th Cir.Rule 36-3
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96 F.3d 114
UNITED STATES of America, Plaintiff--Appellant,v.COMMONWEALTH OF VIRGINIA; L. Douglas Wilder, Governor ofthe Commonwealth of Virginia; Virginia Military Institute;Joseph M. Spivey, III, President of the Virginia MilitaryInstitute Board of Visitors; John Williams Knapp,Superintendent of Virginia Military Institute; The Board ofVisitors of Virginia Military Institute; Thomas N. Downing;Elizabeth P. Hoisington, Brig. Gen.; Robert Q. Marston;A. Courtland Spotts, III; Daniel F. Flowers; B. PowellHarrison, Jr.; Robert H. Spilman; Samuel E. Woolwine;James W. Enochs, Jr.; William A. Hazel; Harvey S. Sadow;Douglas K. Baumgartner; Daniel D. Cameron; Glen N. Jones;John W. Roberts, Members of the Board of Visitors ofVirginia Military Institute; VMI Foundation, Incorporated;VMI Alumni Association, Defendants--Appellees,andGordon K. Davies, Director of the Virginia State Council ofHigher Education; The Virginia State Council ofHigher Education and its Members andOfficers, Defendants.Virginia Women Attorneys Association; Virginia Chapter ofthe American Association of University Women; VirginiaChapter of the Older Women's League; Virginia Federation ofBusiness and Professional Women's Clubs, Incorporated;Friends of VMI for Equality; Alexander W. Astin; AmericanCivil Liberties Union; ACLU Foundation of Virginia;National Women's Law Center; American Association ofUniversity Women; Center for Women Policy Studies;National Organization for Women; NOW Legal Defense andEducation Fund; Virginia National Organization for Women;Virginia NOW Legal Defense and Education Fund, Incorporated;Women's Law Project; Women's Legal Defense Fund, Amici Curiae.UNITED STATES of America, Plaintiff--Appellant,v.COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of theCommonwealth of Virginia; Virginia Military Institute;Joseph M. Spivey, III, President of the Virginia MilitaryInstitute Board of Visitors; John Williams Knapp,Superintendent of Virginia Military Institute; The Board ofVisitors of Virginia Military Institute; VMI Foundation,Incorporated; VMI Alumni Association; The Virginia StateCouncil of Higher Education and its Members and Officers;Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.;Robert Q. Marston; A. Courtland Spotts, III, Daniel F.Flowers; B. Powell Harrison, Jr.; Robert H. Spilman;Samuel E. Woolwine; James W. Enochs, Jr.; William A.Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D.Cameron; Glen N. Jones; John W. Roberts, Defendants--Appellees,andGordon K. Davies, Defendant.The National Women's Law Center; American Association ofUniversity Women; American Civil Liberties Union;California Women's Law Center; Center for Women PolicyStudies; Connecticut Women's Education and Legal Fund;Equal Rights Advocates; Federally Employed Women, Inc.;Feminist Majority Foundation; Human Rights Campaign Fund;Lawyer's Committee for Civil Rights Under Law; NationalAssociation for Girls & Women in Sport; NationalAssociation of Commissions for Women; National Council ofNegro Women; National Education Association; National Gayand Lesbian Task Force; National Hookup of Black Women;National Organization for Women; NOW Legal Defense andEducation Fund; National Women's Conference Committee;National Women's Party; Northwest Women's Law Center;Trial Lawyers for Public Justice; Women Employed; Women'sLaw Project; Women's Legal Defense Fund; YWCA of theU.S.A., Amici Curiae.UNITED STATES of America, Plaintiff--Appellee,v.COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of theCommonwealth of Virginia; Virginia Military Institute;Joseph M. Spivey, III, President of the Virginia MilitaryInstitute Board of Visitors; John Williams Knapp,Superintendent of Virginia Military Institute; The Board ofVisitors of Virginia Military Institute; VMI Foundation,Incorporated; VMI Alumni Association; The Virginia StateCouncil of Higher Education and its Members and Officers;Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.;Robert Q. Marston; A. Courtland Spotts, III, Daniel F.Flowers; B. Powell Harrison, Jr.; Robert H. Spilman;Samuel E. Woolwine; James W. Enochs, Jr.; William A.Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D.Cameron; Glen N. Jones; John W. Roberts, Defendants--Appellants,andGordon K. Davies, Defendant.The National Women's Law Center; American Association ofUniversity Women; American Civil Liberties Union;California Women's Law Center; Center for Women PolicyStudies; Connecticut Women's Education and Legal Fund;Equal Rights Advocates; Federally Employed Women, Inc.;Feminist Majority Foundation; Human Rights Campaign Fund;Lawyer's Committee for Civil Rights Under Law; NationalAssociation for Girls & Women in Sport; NationalAssociation of Commissions for Women; National Council ofNegro Women; National Education Association; National Gayand Lesbian Task Force; National Hookup of Black Women;National Organization for Women; NOW Legal Defense andEducation Fund; National Women's Conference Committee;National Women's Party; Northwest Women's Law Center;Trial Lawyers for Public Justice; Women Employed; Women'sLaw Project; Women's Legal Defense Fund; YWCA of theU.S.A., Amici Curiae.
Nos. 91-1690, 94-1667 and 94-1712.
United States Court of Appeals,Fourth Circuit.
Sept. 19, 1996.
Deval L. Patrick, Assistant Attorney General, David O. Simon, Acting Deputy Assistant Attorney General, Thomas E. Chandler, Jessica Dunsay Silver, Civil Rights Division, United States Department of Justice, Washington, DC, for Appellant. Robert H. Patterson, Jr., Anne Marie Whittemore, William G. Broaddus, J. William Boland, Frank B. Atkinson, H. Alexander Wise, McGuire, Woods, Battle & Boothe, Richmond, Virginia; James S. Gilmore, III, Attorney General of Virginia, William Henry Hurd, Deputy Attorney General of Virginia, Richmond, Virginia; Griffin B. Bell, William A. Clineburg, Jr., King & Spalding, Atlanta, Georgia; William B. Poff, Woods, Rogers & Hazlegrove, Roanoke, Virginia, for Appellees. Eileen N. Wagner, Richmond, Virginia; Karen R. Keesling, Falls Church, Virginia; Sylvia Clute, Richmond, Virginia, for Amici Curiae Virginia Women Attorneys Association, et al. Marcia D. Greenberger, Ellen J. Vargyas, Shirley Sagawa, National Women's Law Center, Washington, D.C.; Joan E. Bertin, Elisabeth A. Werby, Isabelle Katz Pinzler, Jacqueline A. Berrien, American Civil Liberties Union Foundation, New York, New York; Stephen B. Pershing, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia; Robert N. Weiner, Leigh McAfee, Mark Eckenwiler, Stefanie J. Raker, Arnold & Porter, Washington, D.C., for Amici Curiae National Women's Law Center, et al. James W. Tredway, III, Christian, Barton, Epps, Brent & Chappell, Richmond, Virginia, for Amicus Curiae Mary Baldwin College. David M. Lascell, Rebecca A. Kirch, Hallenbeck, Lascell & Pineo, Rochester, New York, for Amici Curiae Wells College, et al.
Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.
PER CURIAM:
1
In United States v. Commonwealth of Virginia, 976 F.2d 890 (4th Cir.1992), we held that single-gender education is pedagogically justifiable for both males and females, and therefore that "the homogeneity of gender in the process, regardless of which sex is considered" warrants a state's offering single-gender education. Id. at 897. But because the Commonwealth of Virginia was offering single-gender education to males at Virginia Military Institute (VMI) without offering single-gender education anywhere in the state to females, we found that it was violating the Equal Protection Clause of the Fourteenth Amendment. We remanded the case to the district court with instructions to require Virginia to formulate, adopt, and implement a plan conforming with the Equal Protection Clause. We concluded:
2
Consistent therewith, the Commonwealth might properly decide to admit women to VMI and adjust the program to implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support of VMI, leaving VMI the option to pursue its own policies as a private institution. While it is not ours to determine, there might be other more creative options or combinations.
3
Id. at 900. The Supreme Court affirmed our judgment in United States v. Virginia, U.S. ----, ----, 116 S.Ct. 2264, 2287, 135 L.Ed.2d 735 (1996).
4
On remand to the district court, Virginia developed a proposal to establish the Virginia Women's Institute for Leadership (VWIL), a parallel program at Mary Baldwin College, providing women with single-gender education together with special leadership training. Virginia did not, however, propose to duplicate the military-type training offered at VMI. Following a trial, the district court approved the VWIL plan and directed Virginia "to proceed with all deliberate speed ... to have the Plan operational for the academic year commencing in the Fall of 1995." United States v. Commonwealth of Virginia, 852 F.Supp. 471, 485 (W.D.Va.1994).
5
On appeal, we affirmed the district court's judgment. United States v. Commonwealth of Virginia, 44 F.3d 1229 (4th Cir.1995). Applying an expanded intermediate scrutiny test to the state's program, we concluded:
6
[I]f the conditions that we impose below are fulfilled, the opportunities that would be open both to men and women are sufficiently comparable. We therefore are satisfied that the special intermediate scrutiny test defined for this case has been met, insofar as a proposed program can meet this test, by the VWIL program proposed at Mary Baldwin College.
7
Id. at 1241. The conditions to our approval were that the program be "headed by a well-qualified, motivated administrator"; that the program be "well-promoted to potentially qualified candidates"; that the program include an adequate funding commitment; and that the program be reviewed on a continuing basis by qualified professional educators to assure that it remains "aimed not only at providing a quality bachelor's degree but also at affording the additional element of taught discipline and leadership training for women." Id.
8
In United States v. Commonwealth of Virginia, --- U.S. ----, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), the Supreme Court reversed our judgment, holding that the VWIL program at Mary Baldwin College was not an adequate remedy for the equal protection violation. Writing for the Court, Justice Ginsburg reasoned:
9
In myriad respects other than military training, VWIL does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's. Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-year history, the school's prestige, and its influential alumni network.
10
Id. at ----, 116 S.Ct. at 2284. The Court also found no "persuasive evidence" in the record that VMI's male-only admission policy furthered a state policy of diversity. Id. at ----, 116 S.Ct. at 2279. At bottom, the Court concluded that Virginia had "shown no 'exceedingly persuasive justification' for withholding from women qualified for the experience premier training of a kind VMI affords." Id. at ----, 116 S.Ct. at 2287. The Court remanded the case for further proceedings consistent with its opinion. Id.
11
We now vacate the district court's judgment and remand this case to require Virginia to formulate, adopt, and implement a plan that conforms with the Equal Protection Clause of the Fourteenth Amendment as applied to this case by the Supreme Court.
12
IT IS SO ORDERED.
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564 F.2d 93
U. S.v.Godfrey
No. 77-1482
United States Court of Appeals, Fourth Circuit
9/21/77
1
D.S.C.
REVERSED AND REMANDED
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103 F.3d 148
U.S.v.M/V Enif
NO. 95-6928
United States Court of Appeals,Eleventh Circuit.
Nov 25, 1996
Appeal From: S.D.Ala., No. 95-00033-BH-C
1
REVERSED IN PART, VACATED IN PART.
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16 So.3d 827 (2009)
REID
v.
STATE.
No. 2D08-3591.
District Court of Appeal of Florida, Second District.
August 21, 2009.
Decision without published opinion Affirmed.
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234 F.Supp. 140 (1964)
Rose W. LYNN, as Administratrix of the Estate of Louis R. Lynn, Deceased, Plaintiff,
v.
Thomas E. SCANLON, District Director of Internal Revenue for the Eastern District of New York and United States of America, Defendants.
No. 63-C-1050.
United States District Court E. D. New York.
June 1, 1964.
*141 Benjamin B. Wesley, Woodhaven, New York, for plaintiff.
Joseph P. Hoey, U. S. Atty., Eastern District of New York, Martin Wright, Asst. U. S. Atty., of counsel, for defendants.
ZAVATT, Chief Judge.
In the instant action the plaintiff, Rose W. Lynn, as administratrix of the estate of Louis R. Lynn, asserts three claims against the District Director of Internal Revenue and the United States. The first claim seeks judgment declaring a penalty assessment of $603.61 invalid and unauthorized by law, and the issuance of temporary and permanent injunctions restraining the defendants from collecting that assessment. In the second claim the plaintiff asks that a notice of tax lien arising on account of said assessment be declared void and removed. The third claim seeks recovery of $72.00 previously paid to the defendants pursuant to a levy arising from said assessment. The plaintiff alleges that this court has jurisdiction of these three claims under 28 U.S.C. §§ 1340, 1346(a) (1). The Government's defense is that the assessment was proper in all respects, authorized by law and that the plaintiff has failed to state a claim upon which relief can be granted. In addition, the defendants have interposed a counterclaim for an adjudication *142 that the plaintiff is liable to the United States for the unpaid balance of $531.61 of the assessment, plus interest thereon. The case is now before this court on cross motions, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment.
During all times pertinent to the instant proceeding, the decedent was Secretary-Treasurer of Roda Construction Corp. (hereinafter Roda), a now defunct corporation. During the second quarter of 1953 Roda withheld from the wages paid to its employees, the sum of $603.61 as withholding and F.I.C.A. taxes. In July of 1953 it filed the required Form 941 return reporting that such taxes had been withheld. The facts further reveal that in September of 1953 Roda filed a final return with respect to employee withholding and F.I.C.A. taxes reporting that it had ceased to pay wages after June 30, 1953, and had gone out of business.
On September 9, 1954, the decedent filed a voluntary petition in bankruptcy, listing the United States as a creditor. He was adjudged a bankrupt on that same day and on February 28, 1955, an order of this court discharged the decedent in bankruptcy. On March 17, 1955, the District Director filed a proof of claim in the bankruptcy proceeding asserting that the decedent was indebted to the United States in an "Unliquidated Amount for Internal Revenue Taxes." Accompanying this proof of claim was a letter of transmittal in which the District Director stated: "An agent has been assigned to conduct an investigation in this proceeding and upon receipt of his report, a proof of claim will be filed to cover unpaid Internal Revenue Taxes which may be due." On March 19, 1956, the District Director filed another proof of claim asserting that the decedent was indebted to the United States for $102.80 for 1954 personal income tax. The letter of transmittal stated that "The attached proof of claim supersedes, amends and should be filed instead of unliquidated claim filed by you March 17, 1955."
On March 15, 1957, following a conference between the decedent and Internal Revenue Service agents on February 5, 1957, the District Director assessed the $603.61 penalty against the decedent pursuant to Section 2707(a) of the 1939 Code, Int.Rev.Code of 1939, ch. 25, § 2707(a), 53 Stat. 290.
"§ 2707. Penalties[1]
"(a) Any person who willfully fails to pay, collect, or truthfully account for and pay over the tax imposed by section 2700(a), or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty of the amount of the tax evaded, or not paid, collected, or accounted for and paid over, to be assessed and collected in the same manner as taxes are assessed and collected. * * *
"(d) The term `person' as used in this section includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."
The decedent made no voluntary payments under this assessment and on June 23, 1958, the defendant Director filed a notice of tax lien with the New York City Register, Queens County, New York, upon all the property of the decedent in favor of the United States for the sum of $603.61. Thereafter, on October 21, 1958, the District Director caused a levy to be served upon the decedent's employer; pursuant to this levy his employer paid over $72.00 to the Internal Revenue Service and the decedent's account was credited therefor on December 29, 1958. On March 15, 1960, a claim for the refund of this $72.00 was filed *143 by the decedent. No notice of disallowance was received by the decedent or the plaintiff after decedent's death. Subsequent claims for the abatement of the assessment have been made by the plaintiff and denied by the Internal Revenue Service.
Louis R. Lynn died on March 22, 1961, and letters of administration were granted to the plaintiff on April 17, 1961, by the Surrogate's Court of Queens County, New York. On May 17, 1961, the defendant District Director filed a proof of claim on behalf of the United States for the outstanding balance of the assessment plus interest thereon, against the decedent's estate. On May 3, 1963, the Surrogate's Court entered an order compelling the plaintiff to render an accounting as administratrix of the Estate of Louis R. Lynn; the plaintiff has filed an appeal therefrom which is currently pending in the Appellate Division of the Supreme Court, Second Department, State of New York.
Insofar as this action represents a suit for refund of the $72.00 paid by the decedent under the levy arising from the penalty assessment, it is properly before this court. Since disposition of the refund issue turns upon the validity of the assessment, it necessarily places the merits of this action before the court and it is of no moment that each of the parties ask for relief to which they are not entitled. This court is without jurisdiction to entertain plaintiff's requests that an injunction be granted restraining the defendants from attempting to collect the unpaid portion of the assessment and that the pending tax lien be removed. Section 7421(a) of the 1954 Code, 26 U.S.C. § 7421(a), with certain exceptions which are inapplicable herein, prohibits a "suit for the purpose of restraining the assessment or collection of any tax." The Court of Appeals for this Circuit has authoritatively decided that an assessment such as that involved herein comes within the above prohibition. Botta v. Scanlon, 314 F.2d 392 (2d Cir. 1963). Plaintiff's second claim requesting a removal of defendants' tax lien, is as much a suit to restrain the collection of these taxes as is her first claim for an injunction. See Hudson v. Crenshaw, 130 F.Supp. 166 (E.D.Va. 1954), aff'd, 224 F.2d 324 (4th Cir. 1955); Larson v. House, 112 F.2d 930 (5th Cir. 1940). Since it cannot be said that the instant case falls within the exception to the applicability of Section 7421(a) which has been drawn by the Supreme Court in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L.Ed.2d 292 (1962), i. e., that the plaintiff has no adequate remedy at law and it is clear that under no circumstances could the Government prevail, the plaintiff's motion for summary judgment granting such an injunction and the removal of the tax lien must be denied. Similarly, it is doubtful that the court has jurisdiction to grant defendants' counterclaim, as such, i. e., for an adjudication that the plaintiff is liable to the Government for the unpaid balance of $531.61. This counterclaim arises more than six years after the March 15, 1957 assessment and appears to be barred by Section 1635(d) of the 1939 Code, Int. Rev.Code of 1939, § 1635(d), added by ch. 809, 64 Stat. 538 (1950).[2] However, it is obvious that this point is of little substantive consequence in the instant case. Should the court find that plaintiff is entitled to a refund of the $72.00 this would, under the facts herein, invalidate *144 the entire assessment; on the other hand, if the court denies plaintiff's request for the refund, this will necessarily confirm the validity of the assessment and leave the Government free to pursue its tax lien, filed in 1958, and its claim filed in the Surrogate's Court in 1961. See United States v. Ettelson, 159 F.2d 193, 196 (7th Cir. 1947).
To begin with, although the defendants have failed to produce the final Form 941 return filed by Roda, the papers submitted by plaintiff concede that such return was filed in September of 1953. Furthermore, although the plaintiff appears to question whether an assessment was made upon the decedent on March 15, 1957, it is clear from the exhibits accompanying these motions that such an assessment was so made. This leaves open for consideration the three major contentions advanced by the plaintiff:
1. That the March 15, 1957 assessment was barred by the statute of limitations;
2. That plaintiff's liability for such assessment, if valid, was discharged by decedent's discharge in bankruptcy;
3. That, in any event, the assessment was invalid since the decedent did not "willfully" fail to pay over the taxes in question.
As to the first contention, it is clear that the assessment was not barred by the applicable statute of limitations. That statute is Section 1635 of the 1939 Code, Int.Rev.Code of 1939, added by ch. 809, 64 Stat. 538 (1950), which provides:
"§ 1635. Period of limitation upon assessment and collection of certain employment taxes
"(a) General rule. The amount of any tax imposed by subchapter A of this chapter or subchapter D of this chapter shall (except as otherwise provided in the following subsections of this section) be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.
* * * * * *
"(e) Date of filing of return. For the purposes of this section, if a return for any period ending with or within a calendar year is filed before March 15 of the succeeding calendar year, such return shall be considered filed on March 15 of such succeeding calendar year."
In the instant case, the final Form 941 return was filed in September of 1953. Therefore, because it was a return for a period ending within the calendar year 1953, and was filed before March 15 of 1954, the succeeding calendar year, the return is considered under section 1635 (e) to have been filed on March 15, 1954. The assessment, made on March 15, 1957, took place on the last day of the three year period provided for in Section 1635 (a) and was, therefore, timely.
Secondly, the plaintiff urges that the liability for this assessment, incurred but not ascertained prior to the decedent's discharge in bankruptcy, was discharged in that proceeding. Although Section 2707(a) denominates this liability as a "penalty," it further provides that it shall be "assessed and collected in the same manner as taxes are assessed and collected." It is the opinion of this court that the assessment pursuant to § 2707(a) is to be regarded as a "tax" rather than a "penalty" and as such is not dischargeable in bankruptcy. Section 17, sub. a (1) of the Bankruptcy Act, 11 U.S.C. § 35, sub. a(1) provides that:
"§ 35. Debts not affected by a discharge
"(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (1) are due as a tax levied by the United States, * * *"
The conclusion reached herein that we are dealing with a tax is implicit in Botta v. Scanlon, supra, where the court treated a similar assessment as a tax subject to Section 7421(a). It finds explicit support *145 in the recent decision of this court in Sherwood v. United States, 228 F.Supp. 247 (E.D.N.Y.1964). In that case Judge Bartels decided this precise question under the 1954 Code counterpart of § 2707 (a) and concluded that an assessment thereunder was not dischargeable under Section 17 of the Bankruptcy Act. He found that:
"For all intents and purposes these cases place the obligation to collect the tax in the same category as the tax itself. An officer of a corporation who has a duty to collect taxes for the Government and who wilfully fails to do so is in the same position as the corporate employer itself. This liability is not a penalty as that term is generally used, but in reality is a liability for a tax originally imposed upon the corporation and shifted to the corporate officer upon his default. Being a tax due from the bankrupt to the United States, this penalty was therefore not dischargeable under Section 17."
The sole question which remains to be decided is whether the decedent was under an obligation to collect the taxes in question and "willfully" failed to pay them over to the Government. In substance the plaintiff alleges that the decedent acted in good faith and that the sole cause of this liability was one Daniel G. Keefe, the then President of Roda, who allegedly misappropriated these and other monies from the corporation. Regardless of the standard to be utilized in determining the meaning of "willfully" as used in § 2707(a), it seems clear that under the circumstances alleged herein, the case must proceed to trial on this point. See, e. g., French v. United States, 180 F.Supp. 773, 774 (E.D.N.Y. 1960) and cases cited therein.
Accordingly, the plaintiff's motion for summary judgment is denied in all respects. Defendants' motion for summary judgment is granted to the extent that plaintiff's first and second claims are dismissed. To the extent not so granted, the defendants' motion for summary judgment is denied. As for plaintiff's third claim it is the finding of this court that the assessment of March 15, 1957 was timely, and that the liability for the assessment was not discharged by the decedent's bankruptcy. The case will proceed to trial for a determination as to whether the decedent was under an obligation to collect and pay over the taxes in question and whether he willfully failed to do so.
Settle an order consistent herewith on or before ten (10) days from the date hereof.
NOTES
[1] This section is made applicable to the instant assessment by Sections 1430 and 1627 of the 1939 Code, Int.Rev.Code of 1939, ch. 9, § 1430; Int.Rev.Code of 1939, § 1627, added by ch. 120, 57 Stat. 138 (1943).
[2] Plaintiff commenced the instant action on September 12, 1963 and defendants' counterclaim was filed on December 11, 1963. Section 1635(d) provides:
"§ 1635. Period of limitation upon assessment and collection of certain employment taxes * * *
"(d) Collection after assessment. Where the assessment of any tax imposed by subchapter A of this chapter or subchapter D of this chapter has been made within the period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court, but only if begun (1) within six years after the assessment of the tax, or (2) prior to the expiration of any period for collection agreed upon in writing by the Commissioner and the taxpayer."
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650 F.Supp. 485 (1986)
The UPJOHN COMPANY, Plaintiff,
v.
RIAHOM CORPORATION and J.P. Utsick, Defendants.
Civ. A. 86-203 CMW.
United States District Court, D. Delaware.
December 3, 1986.
*486 Jeffrey B. Bove, of Connolly, Bove, Lodge & Hutz, Wilmington, Del. of counsel: Thomas J. Macpeak, Peter D. Olexy, J. Frank Osha, and Cynthia Clarke Dale, of Sughrue, Mion, Zinn, Macpeak & Seas, Washington, D.C., Robert A. Armitage, and Lawrence T. Welch, of The Upjohn Co., Kalamazoo, Mich., for plaintiff.
David A. Anderson, of Potter, Anderson & Corroon, Wilmington, Del. of counsel: Berj A. Terzian, Brian M. Poissant, and Victor N. Balancia, of Pennie & Edmonds, New York City, for defendants.
OPINION
CALEB M. WRIGHT, Senior District Judge.
This action has its roots in a Complaint filed May 6, 1986 by the Upjohn Company ("Upjohn") against Riahom Corporation ("Riahom") alleging unfair competition and patent infringement of Upjohn's widely publicized hair growth drug minoxidil. This Court granted Upjohn's Motion for a Preliminary Injunction on the unfair competition count on August 6, 1986. The Court's Opinion in Upjohn Co. v. Riahom Corp., 641 F.Supp. 1209 (D.Del.1986), narrates the factual background to the current controversy.
On June 13, 1986, defendant Riahom, and its president J.P. Utsick, filed an Answer and Counterclaim. The Counterclaim asserts a cause of action for tortious interference with business relations. Upjohn allegedly interfered with the business relationship between Riahom and one of its suppliers, Cad-Cam, by hiring a private detective to threaten Cad-Cam with reprisals if the company continued to assist Riahom in selling a drug in violation of the patent laws.
On August 23, 1986, Upjohn moved for summary judgment on Riahom's Counterclaim, pursuant to Fed.R.Civ.P. 56(a).
The Court denies the Motion.
FACTS
This case has previously been described as a "hair raising saga." 641 F.Supp. at 1212. The facts relevant to this motion lend new meaning to that characterization.
In late May, 1986, Anthony Makonnen, a private investigator hired by the Upjohn Corporation, paid a visit to the San Francisco headquarters of Cad-Cam Corporation, a firm that manufactures boxes for Riahom, a distributor of its own hair growth drug.[1] The investigator informed Robert DeNola, President of Cad-Cam, that he might be involved in manufacturing packaging for an illegal, mislabelled product that was not approved by the FDA and that violated Upjohn's patent. The investigator further told DeNola that Upjohn was suing Riahom "with all guns available."[2] According to DeNola, the conversation transpired in the following manner:
He [the private investigator] said,
"You've been making boxes for these guys. [Riahom]."
I said, "No, I haven't."
He said, "I went to a trade show and saw the boxes."
I said, "You probably saw artist mockups for the shows."
He said, "Bull. We've investigated. We've been tracking these guys."[3]
The investigator said Upjohn was defending a patent and that he (the investigator) was here because he wanted to make certain anyone supplying printing or packaging for Riahom was stopped.
On April 4, 1986, Riahom had entered into a contract with Cad-Cam to produce ten thousand boxes for use in the packaging of Riahom's hair care product, RIVIXIL. This contract was confirmed in an April 5, 1986 letter written by Riahom's *487 Treasurer. (DA-ś 1, p. 1). Pursuant to the agreement, Cad-Cam would produce boxes in accordance with specifications to be provided by Riahom. Additionally, Riahom would pay a one-time charge not to exceed $1,200.00. Enclosed with the Treasurer's April 5th letter, was a check for $6,000.00, representing a fifty percent down payment on the total charge for the boxes. (DA-ś 3, p. 2). It was agreed that delivery of the boxes would take place at the end of April, 1986. (DA-ś 3, p. 2).
Mr. DeNola subsequently communicated to Riahom that the April delivery date would have to be postponed until the end of May, 1986. Riahom's Treasurer, in early May, 1986, sought to cancel the agreement with Cad-Cam, orally communicated this to Mr. DeNola, and confirmed it in a May 13, 1986 letter. (DA-ś 4, p. 2). This letter was followed by telephone discussions between DeNola and Riahom. DeNola argued that Cad-Cam had made substantial preparations to produce the RIVIXIL boxes and intended to retain Riahom's $6,000 down payment. He suggested that the best solution for both parties would be for Cad-Cam to proceed with the box production. (DA-ś 5, p. 2).
Around this time, however, Mr. DeNola was visited by Upjohn's private investigator. According to DeNola, this visit caused Cad-Cam to cease any further business relationship with Riahom. (DA-ś 7, p. 2).
DISCUSSION
A. The Summary Judgment Standard
The Court will grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Any doubt as to the existence of genuine issues of fact will be resolved against the moving party and any reasonable inferences from the facts will be resolved in favor of the party against whom the judgment may be entered. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982); Peterson v. Lehigh Valley Dist. Council, United Bhd. of Carpenters and Joinders, 676 F.2d 81, 84 (3d Cir.1982); Devex v. General Motors Corp., 579 F.Supp. 690, 693 n. 3 (D.Del.1984). See Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
As a practical matter, "[if] the parties disagree about material facts and if the non-moving party would be entitled to relief if the jury believed its version of the facts, then summary judgment is inappropriate." Landtect Corp. v. State Mutual Life Assur. Co., 605 F.2d 75, 79 (3d Cir. 1979); Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); see e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); 6 J. Moore, Federal Practice ś 56.13[3] (2d ed. 1966).
B. Cancellation of the Riahom/Cad-Cam Contract
Defendants' counterclaim purports to state a claim for tortious interference with business relations. In this jurisdiction, this tort is known as an "inducement of breach of contract." Upjohn does not deny that its private investigator visited Cad-Cam. Instead, Upjohn makes two arguments. First, that as a factual matter, by the time Anthony Makonnen visited DeNola, Riahom had already cancelled its contract with Cad-Cam. Second, Upjohn contests that, as a matter of law, an assertion of a bona fide legal claim against Riahom for patent infringement cannot constitute tortious interference with business relations. Both arguments are too thin to prevail.
This Court adopts the Restatement (Second) of Torts definition of tortious interference with contractual relations:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other *488 from the failure of the third person to perform the contract. § 766 quoted in Manufactures Hanover Trust Co. v. Kearney Chemicals, Inc., 468 F.Supp. 1107, 1111 (D.Del.1979).
The comments to the Restatement further suggest that a contract is not a necessary precondition to maintaining a successful action for tortious interference with business relations. "The liability for inducing breach of contract is now regarded as but one instance, rather than the exclusive limits, of protection against improper interference in business relations. The added element of a definite contract may be a basis for greater protection; but some protection is appropriate against improper interference with reasonable expectancies of commercial relations even when an existing contract is lacking." Restatement (Second) of Torts § 766 comment C.
Delaware law recognizes this expansive definition of tortious interference with business relations. In Unit, Inc. v. Kentucky Fried Chicken Corporation, 304 A.2d 320, 332 (Del.Super.1973), the Delaware Superior Court recognized that "one who, without privilege to do so, induces or otherwise purposely causes a third person not to ... enter into or continue a business relation with another is liable to the other for the harm caused thereby." See also Bowl-Mar Company v. Brunswick Corporation, 297 A.2d 61, 65 (Del.Ch.1972)[4].
This broad definition has its historical roots in early English Law. In Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (1893), a singer under contract to perform at the plaintiff's theatre was induced by the defendant, who operated a rival theatre, to break her contract with the plaintiff in order to sing for the defendant. The decision in favor of the plaintiff rested largely on the analogy of the rules relating to enticement of another's servants. Subsequent cases extend the rule of Gye to contracts other than contracts of service and to interference with advantageous business relations, even when they were not cemented by a contract. See Restatement, supra, § 766 comment C. See also R. Epstein "The Pirates of Pennzoil," 32 U.Chi.L.Sch. Record 3 (1986).
Upjohn's motion will be defeated if there is a reasonable factual dispute as to either of two separate issues: (1) whether there was a Riahom/Cad-Cam contract or (2) whether Riahom/Cad-Cam had an ongoing business relationship.
Cad-Cam rebuts Upjohn's contention that the Riahom/Cad-Cam contract was cancelled prior to the visit of Upjohn's agent to Mr. DeNola. In a sworn affidavit, DeNola confirms that the contractual relationship between Cad-Cam and Riahom did not terminate with the receipt of Riahom's May 13, 1986 letter. (DA-śś 1-3).
In addition, further discussion took place thereafter directed toward accomplishing the original objective of production of RIVIXIL boxes for Riahom by Cad-Cam. DA-ś 5, p. 2. These protracted negotiations provide evidence of an ongoing relationship between the corporations.
On the material now properly before the Court, relevant issues of fact exist as to the status of the business relationship between Riahom and Cad-Cam at the time of Upjohn's discussions with DeNola. Viewing this evidence in the light most favorable to Riahom, a trier of fact may infer that Upjohn's conduct interfered with the Riahom/Cad-Cam business relationship.
*489 C. Asserting a Bona Fide Claim
Upjohn's second argument in support of summary judgment is more subtle, but it too must fail. This argument relies on the Restatement (Second) of Torts, § 773 provision for asserting a bona fide claim:
One who, by asserting in good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other's relations if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.[5]
By relying exclusively on this Section, Upjohn paints its argument with too broad a brush. In this context, the Court must split hairs. Delaware courts have never specifically adopted the Second Restatement law on asserting a bona fide claim. Rather, the courts employ the language of the First Restatement of Torts, § 773 (1939) which provides: "one is privileged purposely to cause another not to perform a contract, or enter into or continue a business relation, with a third person by in good faith asserting or threatening to protect properly a legally protected interest of his own which he believes may otherwise be impaired or destroyed by the performance of the contract or transaction." Unit, Inc. v. Kentucky Fried Chicken Corporation, 301 A.2d 320, 332 (Del.Super.1973) (emphasis added).
In discussing the First Restatement, the Unit court took the concept of "privilege" to be either "a question of law or a question of fact." The court denied plaintiff's motion for summary judgment based on a claim of absolute privilege because there was a factual question about the existence of a contract. "In this case, there is certainly a factual question as to the very existence of plaintiff's contract right and it cannot be said on summary judgment that an absolute privilege must prevail." Id. at 333. Similarly, in the case at bar, there is a question as to the existence of a contract.
The Unit court granted plaintiff's summary judgment motion on defendant's counterclaim for tortious interference with business relations, based on the concept of a qualified privilege. The court ruled that a qualified privilege or justification will only be maintained when "the actor in good faith asserts an honest claim." The court went on to decide that on the specific facts of the case, the plaintiff had asserted an honest claim, in good faith. Id. at 333.
The question in the case at bar ultimately resolves itself into a factual question about whether Upjohn can assert a qualified privilege. This approach is supported by the Restatement Second language which requires "good faith" by a party in protecting its interests "by appropriate means." Restatement (Second) Torts, § 773. Although Upjohn may well have a legally protected interest, it is not clear that it was asserted "in good faith" nor was it clear that the threat to protect the legal interest was by "appropriate means."
On the record, there remains a material issue of fact as to whether Upjohn asserted its interest "in good faith" or by "appropriate means". If Upjohn had merely wanted to notify Cad-Cam that it intended to press its lawsuit against Riahom, it could have alerted the company by letter or in a meeting with company representatives. *490 Hiring a private detective and having the detective inform one of Riahom's suppliers that all of Riahom's suppliers are being looked into may well not be "appropriate means."[6]
A further indication that Upjohn's conduct was not appropriate is given in the illustrations to § 773 of the Second Restatement â the very section cited by plaintiff. The first illustration indicates that a threat of legal proceedings is not improper when communicated in a meeting between a third party and a contracting party. The same illustration, however, indicates that threats of physical violence addressed to parties to a contract would not be proper. Hiring a private investigator to convey an unclear threat falls between these two factual illustrations. There are indications on the record now before the Court that the private investigator used improper language, and uttered an ambiguous threat.[7] On these facts, viewed most favorably to defendant, summary judgment is not warranted.
Plaintiffs' final argument rests on an opinion reported in another district. In Grotrian, Helfferich, Schulz, Etc. v. Steinway & Sons, 365 F.Supp. 707 (S.D.N. Y.1973), aff'd. in pertinent part, 523 F.2d 1331 (2d Cir.1975), Grotrian had a contract with a third party, Wurlitzer. Steinway advised Wurlitzer in a meeting that Grotrian was infringing on Steinway's trademark. Wurlitzer accordingly cancelled its contract with Grotrian, who asserted a tortious interference claim against Steinway. The court denied the claim because Steinway "was entitled to insist, in good faith, on its legal rights, even if such insistence resulted in the cancellation of the Wurlitzer-Grotrian contract." 365 F.Supp. at 720. But in that case, there was no private detective hired, and the court made a specific factual finding, at trial, that the claim had been brought in good faith. Id. at 720, n. 66. Here, the factual question of "good faith" and "appropriate means" must be determined more fully. Upjohn's bald assertion that this case is on point cannot withstand close inspection.
Questions of fact concerning Riahom's business relationship with Cad-Cam and concerning Upjohn's assertion of a bona fide claim remain. Accordingly, plaintiff's motion for summary judgment is denied.
An Order will enter in conformity with this Opinion.
NOTES
[1] DeNola Affidavit, ś 7, p. 2. [hereinafter references to the Affidavit will take the form in the text: DA-ś, page 3; e.g., DA-ś 7, p. 2].
[2] Memorandum of June 6, 1986 from Riahom's Treasurer relating to the telephone call of June 2, 1986 from Robert DeNola.
[3] DeNola Deposition p. 32.
[4] Bowl-Mar adopts the American Jurisprudence definition of tortious interference with a business relationship which has four requirements: (1) the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy: (2) knowledge of the relationship or expectancy on the part of the interferee; (3) an intention interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. "One is liable for commission of this tort who interferes with the business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another." 45 Am.Jur.2d Interference § 50.
[5] The Comment to the Restatement indicates that this defense is a narrow one:
a. The rule stated in this Section gives to the actor a defense for his legally protected interests. It is of narrow scope and protects the actor only when (1) he has a legally protected interest, and (2) in good faith asserts or threatens to protect it, and (3) the threat is to protect it by appropriate means. Under these circumstances his interference is not improper although he knows that his conduct will cause another to break his contract or otherwise refuse to do business with a third person. If any of these elements is lacking, the rule stated in this Section, does not apply but he may have some other justification. The actor's claim may be either against the person induced or against the one harmed and it may be an interest in rem or an interest in personam.
[6] See note 2, supra, and accompanying text.
[7] See notes 1-3, supra, and accompanying text.
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198 P.3d 511 (2008)
METROVAC
v.
DEPARTMENT OF LABOR AND INDUSTRIES.
No. 81480-5.
Supreme Court of Washington, Department I.
December 2, 2008.
Disposition of petition for review. Granted.
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470 F.2d 981
UNITED STATES of America, Plaintiff-Appellee,v.Jose Medardo ALVERO, Defendant-Appellant.
No. 72-2294.
United States Court of Appeals,Fifth Circuit.
Dec. 29, 1972.
Donald I. Bierman, Miami, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., P. D. Aiken, Asst. U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Richard B. Buhrman, Attys., Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
THORNBERRY, Circuit Judge:
1
Appellant Jose Alvero was convicted after a jury trial of one count of concealing assets with intent to evade and defeat collection of marijuana taxes in violation of IRC Sec. 7206(4), 26 U.S.C.A. Sec. 7206(4), and of one count of knowingly making a false written statement to agents of the Internal Revenue Service in violation of IRC Sec. 7206(1), 26 U.S.C.A. Sec. 7206(1). On appeal he urges five grounds for reversal: (1) the jury instructions were confusing, misleading, and erroneous; (2) appellant was denied his right to trial by jury because one of the jurors below was incompetent; (3) the government was improperly permitted to impeach its own witness and to argue the truth of statements admitted for the limited purpose of impeachment; (4) admission into evidence of certain statements made by appellant during a criminal tax investigation was error because appellant was not given Miranda warnings prior to the investigatory interview, and (5) no conviction for concealing assets can be based upon marijuana taxes allegedly due because Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed. 2d 57 (1969) voided the marijuana tax. We reverse and remand for a new trial on the first issue raised by appellant and do not reach the other asserted trial errors.
2
We predicate our reversal on an erroneous instruction on reasonable doubt. The reasonable doubt instruction included the following passage:
3
"It is not a speculative doubt, but any substantial reasonable doubt, common, ordinary horsesense doubt. It is one that remains after all the evidence is in that would cause a reasonable person to entertain a reasonable and proper doubt; a very substantial doubt, let me put it that way, of the guilt of the defendant. Then, of course, you must find him not guilty."
4
Both sides objected to the use of the phrase "very substantial doubt," and the trial judge gave further instructions intended to cure the error. At no time, however, did he retract the objectionable phrase. Viewing this phrase in the context of the whole charge, Baker v. United States, 5th Cir. 1969, 412 F.2d 1069, cert. denied 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 we find that the "very substantial doubt" instruction overstated the degree of uncertainty required for reasonable doubt. Accord, United States v. Byrd, 2d Cir. 1965, 352 F.2d 570; Boatright v. United States, 8th Cir. 1939, 105 F.2d 737, 740. Further, we are not confident that the curative instructions set the matter aright in the jurors' minds and conclude, therefore, that the error requires reversal. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Cumberland, 3d Cir. 1952, 200 F.2d 609.
5
If appellant were to prevail on his fifth asserted ground for reversal, a new trial would not be permissible on the indictment count for hiding assets to defeat collection of the marijuana tax; a comment on this ground is therefore appropriate. We do not agree with appellant's contention that Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) held collection of the marijuana tax unconstitutional or relieved taxpayers against whom it was properly assessed of the duty to pay it. Leary dealt, in a Fifth Amendment context, with a taxpayer's failure to supply incriminating evidence about himself by filing marijuana tax returns. The Fifth Amendment problem does not arise in this case, since appellant was neither asked to supply information about himself relating to marijuana possession nor prosecuted for failing to do so. The government had independent knowledge of facts which indicated the tax was due and assessed it. Leary did not hold the tax itself unconstitutional, and, if it was properly assessed, appellant had a duty to pay it. See also United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950).
6
The judgment is reversed and the case remanded for a new trial.
7
Reversed and remanded.
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723 P.2d 366 (1986)
80 Or. App. 656
In the Matter of the Compensation of James Nix, Claimant.
James NIX, Petitioner,
v.
STATE ACCIDENT INSURANCE FUND, an Oregon Corporation, Respondent.
WCB 84-05083; CA A37597.
Court of Appeals of Oregon.
Argued and Submitted May 5, 1986.
Decided August 13, 1986.
Reconsideration Denied September 26, 1986.
*367 Michael L. Spencer, Klamath Falls, argued the cause for petitioner. With him on brief was Osborne & Spencer, Klamath Falls.
Darrell E. Bewley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
WARDEN, Presiding Judge.
Claimant seeks judicial review of a Workers' Compensation Board order reducing the referee's award of compensation for temporary disability. He also objects to the Board's setting aside the referee's award of a penalty and attorney fees. The referee awarded them because of respondent's unreasonable delay in paying interim compensation. We affirm the Board's reduction of compensation for temporary disability and reverse its order setting aside the award of penalties and attorney fees.
On February 20, 1984, claimant was injured in an on-the-job accident while driving employer's truck. Employer was at the scene of the accident and urged claimant to seek immediate medical attention. Claimant was taken to a Bend hospital, where he was treated and released. He was unable to work for two weeks as a result of his injuries. Although employer knew that claimant was involved in an accident that might result in a compensable injury, he did not immediately report the accident to SAIF as required by ORS 656.262(3).[1] He terminated claimant's employment on the date of the accident.
Claimant signed a claim form on May 7; employer signed it on May 17 and forwarded it to SAIF. SAIF accepted the claim as non-disabling on May 30, 1984. Claimant requested a hearing, asserting that he was entitled to interim compensation[2] from the date of the accident through May 30, 1984. The referee awarded interim compensation for that period. ORS 656.262(4) requires that the first interim payment of compensation be made no later than 14 days after the employer has notice or knowledge of the claim. The referee found that employer had such notice on the day of the accident and, because SAIF had *368 failed to make a payment within 14 days, the referee also imposed a penalty and awarded attorney fees pursuant to ORS 656.262(10).[3]See Jones v. Emanuel Hospital, 280 Or. 147, 570 P.2d 70 (1977).
The Board found that claimant was away from work as a result of his injury for only two weeks. He had not returned to his job after that, because the only truck available for him to drive had been rendered inoperable in the accident and employer had terminated him. Relying on Bono v. SAIF, 298 Or. 405, 692 P.2d 606 (1984), the Board concluded that claimant was entitled to temporary total disability only for the two week period during which he was unable to work because of his injury. In Bono, the court held that a workers' compensation claimant is not entitled to interim compensation for any period when he was on the job.
In Jones v. Emanuel Hospital, supra, the court reasoned that, when read together, subsections (2), (4), and (5) (now (6)) of ORS 656.262 require an employer or insurer to begin paying interim compensation within 14 days of having notice of a claim. The payments are due whether or not the claim is ultimately found compensable. The court noted that interim compensation would prevent delays in processing a claim and insure a worker's well being during the period in which acceptance or denial of the claim was being considered. 280 Or. at 151-152.
In Bono v. SAIF, supra, the court limited the effect of Jones, stating:
"The purpose of interim compensation is to compensate the injured worker for leaving work. This is true even where this results from a non-compensable injury, as in Jones. However, if the worker does not demonstrate that he or she left work, interim compensation is not required." 298 Or. at 410, 692 P.2d 606.
Claimant in this case was away from work after recovering from his injuries for reasons that were unrelated to his injury: He had been fired. Therefore, after claimant's two weeks of disability, he was not entitled to interim compensation. See Weyerhaeuser Co. v. Bergstrom, 77 Or.App. 425, 713 P.2d 654 (1986).
We disagree, however, with the Board's decision to set aside the referee's award of a penalty and attorney fees for SAIF's delay in paying interim compensation for the two weeks when claimant was disabled. The Board ruled that the penalty and attorney fees were not justified, because SAIF's delay was not unreasonable, because the fact that claimant was unable to work due to his injury was not known to SAIF until the hearing. That result cannot be squared with the statutory scheme, which provides that processing claims and providing compensation for a worker is the responsibility of the insurer. ORS 656.262(1). The Board held that, once SAIF had notice of the claim, it had acted reasonably by promptly processing it. Although SAIF may have proceeded correctly after receiving notice of the claim, the fact remains that claimant was not served by the workers' compensation system as he had a right to be. Compensation was not paid within 14 days of the accident, because employer failed to report the accident within five days, as required by ORS 656.262(3). That conduct of the employer was unreasonable and is legally attributable to his insurer, SAIF. See Anfilofieff v. SAIF, 52 Or.App. 127, 627 P.2d 1274 (1981).
In Anfilofieff, the employer did not truthfully report the cause of claimant's injury or his relationship with claimant to SAIF, leading to a denial of the claim. We held that penalties and attorney fees could be assessed against SAIF:
"[W]e interpret the statute to authorize penalties to be paid by SAIF to the extent unreasonable conduct of a contributing or noncomplying employer causes or contributes to the delay or refusal of *369 compensation." 52 Or.App. at 135, 627 P.2d 1274.
Having found that interim compensation was due within 14 days of the accident, and finding that the compensation was unreasonably delayed by employer's failure to report to SAIF, we order the referee's award of a penalty and attorney fees to be reinstated.[4]
Award of temporary total disability affirmed; reversed as to penalty and attorney fees and referee's award reinstated.
NOTES
[1] ORS 656.262(3) provides in part:
"Employers shall, immediately and not later than five days after notice or knowledge of any claims or accident which may result in a compensable injury claim, report the same to their insurer."
[2] The term "interim compensation" was coined by the court in Jones v. Emanuel Hospital, 280 Or. 147, 570 P.2d 70 (1977); it refers to temporary disability payments which ORS 656.262 requires be made to a claimant who is off work as a result of an injury for the time between the employer's notice of the injury and acceptance or denial of the claim.
[3] ORS 656.262(10) provides in part:
"If the insurer * * * unreasonably delays or unreasonably refuses to pay compensation * * * the insurer * * * shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees which may be assessed under ORS 656.382."
[4] ORS 656.262(3), which requires prompt reporting of claims to its insurer by an employer, also states:
"Failure to so report subjects the offending employer to a charge for reimbursing the insurer for any penalty the insurer is required to pay under subsection (10) of this section because of such failure."
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547 F.2d 525
94 L.R.R.M. (BNA) 2241, 79 Lab.Cas. P 11,793
William J. USERY, Secretary of Labor, Plaintiff-Appellant,v.LOCAL UNION 720, LABORERS' INTERNATIONAL UNION OF NORTHAMERICA, AFL-CIO, Defendant-Appellee.
No. 76-1055.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted Nov. 16, 1976.Decided Jan. 3, 1977.Rehearing Denied Jan. 21, 1977.
Neil H. Koslowe, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., James L. Treece, U. S. Atty., Denver, Colo., Leonard Schaitman, Atty., Dept. of Justice, Civ. Div.-Appellate Section, Washington, D. C., on the brief), for plaintiff-appellant.
Alan A. Armour, Denver, Colo. (Hoffman, Goldstein, Armour & Lonnquist, P. C., Denver, Colo., on the brief), for defendant-appellee.
Before SETH, BREITENSTEIN and McWILLIAMS, Circuit Judges.
BREITENSTEIN, Circuit Judge.
1
The question is whether in an enforcement action under the Labor-Management Reporting and Disclosure Act of 1959, LMRDA, 29 U.S.C. § 401 et seq., the Secretary of Labor has a privilege not to reveal the identities and statements of informants. The Secretary objected to certain interrogatories propounded by the defendant Union and asserted that the information sought was privileged. The court overruled the objection and ordered the Secretary to answer. He declined to do so. On the motion of the defendant, the court dismissed the action and the Secretary has appealed. We reverse.
2
On June 8, 1974, the Union, which is based in Denver, Colorado, had an election of officers. The election was subject to the provisions of Title IV of LMRDA, 29 U.S.C. § 481 et seq. Twelve union members filed a complaint with the Secretary protesting the election. See 29 U.S.C. § 482(a). The Secretary made an investigation, see 29 U.S.C. § 521, and found cause, see 29 U.S.C. § 482(b), to believe that violations of Title IV of the Act had occurred and had not been remedied. He then filed the instant action which seeks nullification of the election and direction of a new election. Section 482(b), 29 U.S.C. confers federal jurisdiction.
3
The answer of the defendant Union contains admissions and denials and asserts affirmative defenses. The Union submitted interrogatories to the Secretary who answered some and claimed privilege as to others. The answers of the Secretary disclosed that he claimed two violations of LMRDA: (1) "defendant's provision of only one polling place, and the failure to provide absentee ballots, denied members in good standing the right to vote for candidates of their choice", see 29 U.S.C. § 481(e), and (2) "the expenditure of $492.04 of defendant's funds to promote the candidacy of certain persons", see 29 U.S.C. § 481(g).
4
The Secretary objected to five interrogatories on the ground that they called for privileged information in that answers would disclose the identity of confidential informants. The court overruled the Secretary's objections and ordered him to answer. He declined to do so. On motion of the defendant, the court dismissed the action.
5
The government is privileged to withhold from disclosure the identities of persons furnishing information of law violations to law enforcement officers. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639. "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement." Ibid. The principle applies in both civil and criminal actions. Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762, 769. We have joined four other circuits in recognizing a qualified privilege to protect the identity of informants in actions under the Fair Labor Standards Act, FLSA. See Usery v. Ritter, 547 F.2d 528, opinion filed simultaneously with this opinion, and cases there cited.
6
The Union asserts that the decisions under the FLSA are not applicable because they are concerned with employer-employee relationships where the possibility of retaliation is present. Union reprisal against its members is within the realm of possibility. See e. g., Robins v. Schonfeld, S.D.N.Y., 326 F.Supp. 525, 528-529. FLSA proscribes retaliatory acts. See 29 U.S.C. § 215(a). Although LMRDA contains no comparable provision, Union says that the members are adequately protected by the "BILL OF RIGHTS OF MEMBERS OF LABOR ORGANIZATIONS", 29 U.S.C. §§ 411-415.
7
Be that as it may, the overriding concern is the public interest in law enforcement. Anonymity of informants encourages communications to law enforcement officers. As said in Roviaro, 353 U.S. at 62, 77 S.Ct. at 629: "The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense."
8
We are aware of no appellate decisions which have considered whether the Secretary is privileged to refuse to identify informants in LMRDA proceedings. Two district court cases have recognized and upheld the privilege. See Wirtz v. International Print. P. & A. U. of N. A., AFL-CIO, E.D.Tenn., 47 F.R.D. 58, and Goldberg v. Machinists, District Lodge 70, D.Kan., 45 CCH Lab.Cas. P 17,799 at 27,409.
9
The Union makes much of its rights of discovery under the applicable Federal Rules of Civil Procedure. We recognize those rights. They must be balanced against the privilege claimed by the government. The privilege is not absolute but qualified. See Usery v. Ritter, supra, and cases there cited. The government's interest in confidentiality must be weighed against the defendant's need for disclosure in the preparation of its defense. See Brennan v. Engineered Products, Inc., 8 Cir., 506 F.2d 299, 303.
10
The proceedings are at the discovery stage. The government is willing to provide information which would not reveal the identities of informants and to make disclosure with regard to informants who waive confidentiality. The government recognizes that at an appropriate time, probably in connection with a pre-trial order, it must list its witnesses. The Union states its needs in conclusory and conjectural terms. The issues are simple whether the Union provided adequate means for its members to express their choices at the election and whether funds of the Union were used to promote the candidacies of particular persons. The facts pertaining to each are within the knowledge of the Union. Absent extraordinary circumstances not here present, the evidentiary rule recognizing a qualified privilege applies in preliminary proceedings not determinative of the merits of a controversy. See McCray v. Illinois, 386 U.S. 300, 312, 87 S.Ct. 1056, 18 L.Ed.2d 62. We are not presented with any problem arising from the listing of witnesses in a pre-trial order.
11
The failure of the Union to show a substantial need for the requested breach of confidentiality at the discovery stage tips the scales in favor of the government. The trial court's reliance on United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039, is misplaced. That case was concerned with executive privilege arising from the constitutional enumeration and separation of powers. Ibid. at 703, 94 S.Ct. 3090. The withholding of an informant's identity is an evidentiary, rather than executive, privilege. See Mitchell v. Bass, 8 Cir., 252 F.2d 513, 516-517. In the case at bar the Secretary claims an evidentiary, not an executive, privilege.
12
The Union argues that discovery orders are discretionary with the trial court. We agree. The difficulty is that the trial court flatly rejected the government's claim of privilege. It did not balance the government's qualified privilege against the need of the Union at the discovery stage of the proceedings. Failure to recognize the government's qualified privilege and to balance it against the needs of the Union was an abuse of discretion.
13
Reversed and remanded for further proceedings in the light of this opinion.
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341 So.2d 1299 (1977)
James Ellis WILLIAMS, Jr., Individually and as Administrator of the Estate of the minor Patricia Louise Williams, Plaintiffs-Appellants,
v.
SISTERS OF the INCARNATE WORD OF GALVESTON, TEXAS, d/b/a St. Frances Cabrini Hospital, Inc., and Argonaut Southwest Insurance Company, Defendants-Appellees.
No. 5774.
Court of Appeal of Louisiana, Third Circuit.
January 31, 1977.
Martin S. Sanders, Jr., Winnfield, for plaintiffs-appellants.
Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees.
Before DOMENGEAUX, WATSON and FORET, JJ.
DOMENGEAUX, Judge.
Plaintiff-appellant, James Ellis Williams, Jr., instituted this action on behalf of his minor daughter, Patricia Louise Williams, against the defendants-appellees, St. Frances Cabrini Hospital, Inc., of Alexandria, Louisiana, and its insurer, Argonaut Southwest Insurance Company, for injuries received by the minor while she was a patient at that hospital. He also claims damages individually for medical and dental expenses resulting therefrom. From a judgment in favor of defendants dismissing plaintiff's demand, the latter has appealed. We affirm.
On the evening of January 31, 1975, Patricia Louise Williams, age 13, was admitted into the St. Frances Cabrini Hospital in Alexandria to undergo tests relative to symptoms of dizziness and fainting which she had recently experienced. Miss Williams' parents obtained cots and spent the night of January 31st in their daughter's hospital room. On the morning of February *1300 1, 1975, at approximately 7 o'clock A.M. a nurse's aid, Linda Mikel Straughter, entered Miss Williams' room to make a routine check of her vital signs. Apparently Mr. Williams had already departed the hospital at that time.
The testimony of Miss Williams and her mother vis a vis that of Miss Straughter is somewhat contradictory. Mrs. Williams and her daughter testified that the nurse's aid informed them that the patient was required to take a bath at that time. Mrs. Williams allegedly informed Miss Straughter that she felt her daughter should not be required to bathe, and the nurse's aid persisted. On the other hand, Miss Slaughter's testimony did not indicate that any dispute occurred over the necessity of the patient's bathing. Miss Straughter testified that she merely inquired as to whether any assistance was needed by Miss Williams in taking her bath. However, all the witnesses do agree that Mrs. Williams informed the nurse's aid that if any assistance was required by her daughter she (the mother) would administer same.
Mrs. Williams and her daughter then entered the bathroom which was contained within the particular hospital suite. The patient proceeded to shower while her mother stood by to assist. After showering Miss Williams dressed in the bathroom and walked back toward the hospital bed when she became weak and dizzy and fell, striking her mouth on the edge of a table and damaging several teeth. Mrs. Williams stated that she did not actually see her daughter's mishap but heard the impact of the fall. Although the record is unclear, it appears that Mrs. Williams remained in the bathroom for a few seconds after her daughter exited therefrom. Miss Straughter, the nurse's aid, was not present in the hospital room at the time of the incident, having left to continue her routine morning rounds.
The trial judge found that the hospital was not guilty of any negligence which caused the injury to plaintiff's daughter.
In the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La. 1974), our Supreme Court has stated the duty of a hospital toward its patients as follows:
"A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient's condition may require. It is the hospital's duty to protect a patient from dangers that may result from the patient's physical and mental incapacities as well as from external circumstances peculiarly within the hospital's control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case."
However, the hospital's duty has been traditionally limited by the jurisprudence, and the oft-quoted limitation has been recently reiterated in Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App.2d Cir. 1976):
"`... On the other hand, a private hospital is not an insurer of a patient's safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.'" (Emphasis added).
See also Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 904 (La.1975); Leblanc v. Midland National Insurance Company, 219 So.2d 251 (La.App. 3rd Cir. 1969); Killgore v. ArgonautSouthwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968), and DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir. 1968).
In the instant case the nurse's aid, Miss Straughter, testified that she was aware that Miss Williams was "in for dizziness". She therefore inquired as to whether the patient required any assistance in taking her daily bath or shower. After being informed by the patient's mother that the latter would assist if necessary, the nurse reasonably assumed that the patient was in good hands. Under the factual context *1301 presented herein, we are of the opinion that neither Miss Straughter nor any other reasonable person would have anticipated that the patient might require further safeguarding in light of the fact that the patient's own mother had offered to watch over her.
In summary, the law requires that hospital personnel safeguard and tend to each patient in a manner commensurate with that individual's infirmity. The hospital properly discharged that duty when the nurse's aid offered to assist plaintiff's daughter in taking her bath. The nurse was relieved of performing that task by the patient's own mother who preferred to attend to the matter herself. We see very little more that the nurse's aid could have done except possibly assist the mother in her assistance of the child. Such action was obviously uncalled for and unnecessary.
For the above and foregoing reasons we concur with the trial judge's holding that the defendants-appellees were free from any negligence in causing the injury to plaintiff's daughter, and accordingly we affirm the judgment of the trial court. Costs of this appeal are assessed against plaintiffs-appellants.
AFFIRMED.
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Giasemis v Giasemis (2016 NY Slip Op 03704)
Giasemis v Giasemis
2016 NY Slip Op 03704
Decided on May 11, 2016
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 11, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
2015-04994
2015-05594
2015-05595
2015-05596
(Index No. 27290/05; Docket No. V-24352-14)
[*1]Christina Giasemis, respondent,
vPeter Giasemis, appellant. (Matter No. 1)
In the Matter of Peter Giasemis, appellant, vChristina Haritos, respondent. (Matter No. 2)
Helene Bernstein, Brooklyn, NY, for appellant.
Jennifer M. Cassandra, Brooklyn, NY, for respondent.
Brad M. Nacht, Brooklyn, NY, attorney for the child.
DECISION & ORDER
Appeals from two orders of the Supreme Court, Kings County (Eric I. Prus, J.), both dated May 12, 2015, and two orders of the Family Court, Kings County (Maria Arias, J.), both dated May 29, 2015. The first Supreme Court order granted that branch of the mother's motion which was to remove Matter No. 2 to the Supreme Court, Kings County, and consolidate it with Matter No. 1, and, sua sponte, dismissed the petition in Matter No. 2. The second Supreme Court order, insofar as appealed from, granted that branch of the mother's motion which was for an award of final decision-making authority over all medical decisions for the subject child. The first Family Court order dismissed the petition in Matter No. 2. The second Family Court order dismissed the father's motion, inter alia, for additional visitation with the subject child.
ORDERED that on the Court's own motion, the notice of appeal from so much of the first Supreme Court order as, sua sponte, dismissed the petition in Matter No. 2 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the first Supreme Court order is modified, on the law, by deleting the provision thereof dismissing the petition in Matter No. 2; as so modified, the first Supreme Court order is affirmed, without costs or disbursements, the petition in Matter No. 2 is reinstated, the orders of the Family Court, Kings County, dated May 29, 2015, are vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,
ORDERED that the second Supreme Court order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the appeals from both Family Court orders are dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the first Supreme Court order.
The parties are the parents of three children. In 2005, the mother commenced an action for a divorce and ancillary relief (hereinafter the matrimonial action). The parties subsequently entered into a custody agreement, dated June 25, 2007, that was incorporated but not merged into their judgment of divorce, dated September 6, 2007. Pursuant to the agreement, the parties agreed to joint custody, with primary physical custody of the children with the mother. The agreement further stated that the mother would consult with the father on all major issues concerning the children, including issues relating to their health. If, after consultation, the parties could not reach a joint decision as to their youngest child (hereinafter the subject child), who allegedly suffers from developmental delays, the mother was to have the right to make final decisions regarding him. The judgment of divorce directed that the Family Court was to have concurrent jurisdiction with the Supreme Court over issues of custody.
After entry of the judgment of divorce, the parties continued to bring their disputes regarding the care of their children to the Supreme Court. The parties' various postjudgment motions and cross motions were resolved by the Supreme Court in an order dated October 27, 2011. That order appointed a social worker as an intermediary to monitor and address the father's complaints and allegations regarding major decisions made by the mother with respect to the schooling and medical treatment of all the children, and directed that the social worker was to report back to the court.
In September 2014, the father commenced a proceeding in the Family Court, Kings County (hereinafter the custody proceeding), to modify the joint custody provisions of the judgment of divorce so as to award him sole custody of the subject child, claiming that there had been a change in circumstances. In March 2015, the father made a motion in the custody proceeding, inter alia, for additional visitation with the subject child. Also in March 2015, the mother moved in the Supreme Court, inter alia, to remove the custody proceeding to the Supreme Court and consolidate it with the matrimonial action, for sole custody of the parties' children, and for sole decision-making authority over all future medical treatment for the parties' children. In an order dated May 12, 2015, the Supreme Court granted that branch of the mother's motion which was to remove the custody proceeding to the Supreme Court and to consolidate it with the matrimonial action and, sua sponte, dismissed the petition in the custody proceeding. In a second order dated May 12, 2015, the Supreme Court granted that branch of the mother's motion which was for final decision-making authority over all medical decisions for the subject child.
After the Supreme Court granted that branch of the mother's motion which was to remove the custody proceeding to the Supreme Court and consolidate it with the matrimonial action and, sua sponte, dismissed the petition in the custody proceeding, the Family Court issued two orders, both dated May 29, 2015, dismissing the petition in the custody proceeding and the father's motion in the custody proceeding, respectively. The Family Court stated that the dismissals were based on the Supreme Court's orders. The father appeals from the two Supreme Court orders and the two Family Court orders.
The Supreme Court providently exercised its discretion in granting that branch of the mother's motion which was to remove the custody proceeding to the Supreme Court and consolidate it with the matrimonial action. Common questions of law and fact exist between the mother's postjudgment motion to modify the custody provisions of the parties' judgment of divorce and the issues raised in the custody proceeding, and the father failed to make a showing of prejudice (see CPLR 602[b]; Cusumano v Cusumano, 114 AD3d 633, 634; Kally v Mount Sinai Hosp., 44 AD3d 1010; see also Kosovsky v Zahl, 52 AD3d 305). Once the Supreme Court removed the custody proceeding to the Supreme Court, there was no basis for the Family Court to issue any further orders.
However, upon granting consolidation, the Supreme Court erred in, sua sponte, dismissing the petition in the custody proceeding without a hearing. In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child (see Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946; Matter of Honeywell v Honeywell, 39 AD3d 857; Cuccurullo v Cuccurullo, 21 AD3d 983, 984). A party seeking such a modification is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Resnick v Ausburn, 123 AD3d 728; Whitehead v Whitehead, 122 AD3d 921; Macchio v Macchio, 120 AD3d 560). Here, the father offered sufficient proof to warrant a hearing on his petition for modification of the parties' joint custody arrangement with regard to the subject child. The father made specific allegations that the mother failed to cooperate with the social worker appointed by the court to monitor her decisions regarding the child's medical treatment, that the parties' ability to cooperate with each other with respect to the child had deteriorated so seriously that a change in the parties' joint custody arrangement was warranted, and that the child, who is now a teenager, had expressed a desire to live with him instead of the mother (see Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640; Matter of Nikki O. v William N., 64 AD3d 938).
Accordingly, we reinstate the petition in the custody proceeding and remit the matters to the Supreme Court, Kings County, for the appointment of an attorney to represent the interests of the subject child, and thereafter for a hearing and a determination of the petition in the custody proceeding and the father's motion for additional visitation with the subject child (see Franco v Franco, 127 AD3d 810; Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640).
The father's remaining contention is not properly before this Court.
ENG, P.J., HALL, SGROI and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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794 P.2d 1011 (1989)
Curtis A. BROWN, Sr., Plaintiff-Appellant and Cross-Appellee,
v.
DENVER SYMPHONY ASSOCIATION, a Colorado non-profit corporation, Defendant-Appellee and Cross-Appellant.
No. 87CA1365.
Colorado Court of Appeals, Div. IV.
August 10, 1989.
As Modified on Denial of Rehearing May 3, 1990.
*1012 Patricia A. Coan, P.C., Patricia A. Coan, Denver, for plaintiff-appellant and cross-appellee.
Sherman & Howard, Mark L. Fulford and Susan K. Grebeldinger, Denver, for defendant-appellee and cross-appellant.
Opinion by Judge DUBOFSKY.
Curtis A. Brown brought this action against defendant, Denver Symphony Association (DSA), for breach of contract and for violation of 29 U.S.C. § 621, et seq. (1982), Age Discrimination In Employment Act (ADEA). After a jury trial, Brown prevailed on his breach of contract claim and DSA prevailed on the ADEA claim. Brown appeals the instructions under the ADEA claim, and the DSA cross-appeals the damage award under the contract claim. We reverse the ADEA judgment and affirm the judgment for Brown on the breach of contract claim.
Brown was employed by DSA as a stage manager from 1973 until February 10, 1986. At the time Brown was fired, he was under a contract with a termination date of May 31, 1986. Brown's management duties included supervision of stage hands and administration of the collective bargaining agreement. DSA's evidence indicated that it fired Brown because of gross insubordination. DSA's dissatisfaction with his job performance focused primarily upon his assistance to the union in a dispute concerning whether the collective bargaining agreement included complimentary breakfasts.
Brown maintains that he was fired because of his age (54) and relies, in part, upon several statements made by his immediate supervisor indicating that Brown was too old for the job.
I.
Brown objected to three of the primary instructions given by the court to cover the ADEA claim. DSA also objected to two of these instructions. We conclude that the *1013 ADEA instructions as given did not properly state the law and were also inconsistent with each other. For these reasons, we reverse.
To present a prima facie basis for recovery in an ADEA disparate treatment case, a plaintiff must establish: (1) that he was within the protected age group, that is over 40 years of age; (2) that he was doing satisfactory work; (3) that he was discharged despite the adequacy of his work; and (4) that his position was filled by a younger employee. See Schwager v. Sun Oil Co., 591 F.2d 58 (10th Cir.1979).
Plaintiff presented evidence in support of each of these elements. Thus, the issue is what evidentiary response was required of defendant and what instructions were appropriate under the evidence presented.
The springboard cases for both the proper jury instructions and the methods of presenting racial, sex, and age discrimination cases are McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979) (procedural principles of race and sex discrimination cases applicable to cases under the ADEA).
The plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. The establishment of the prima facie case creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the evidence establishes a prima facie case and if the employer is silent in the face of the presumption, the finder of fact must enter judgment for the plaintiff. Therefore, the defendant's burden is to rebut the presumption of discrimination by producing evidence that the plaintiff was fired for a legitimate non-discriminatory purpose. The employer's intent is critical in determining its purpose. Texas Department of Community Affairs v. Burdine, supra. See also McDonnell Douglas Corp. v. Green, supra.
Within the spectrum of federal statutory discrimination based cases, including ADEA cases, there is a category referred to as "mixed motive" cases. Typically, a mixed motive case is one in which both legal and illegal motives and factors underlie an employer's decision that adversely impacts the employee. See Price Waterhouse v. Hopkins, ___ U.S. ___, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
When an employer allows age discrimination to influence its decision to terminate or otherwise adversely affect an employee, it must then bear the burden of justifying its ultimate decision. Thus, the employer must show that its legitimate reason, standing alone, would have induced it to make the same decision. Price Waterhouse v. Hopkins, supra.
In a mixed motive case it is appropriate to shift the burden of proof to the defendant because:
"[t]he employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrong doing."
NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).
From the record here, there was evidence that plaintiff was discharged because of both age and insubordination, but the jury was not properly instructed on this issue. See Price Waterhouse v. Hopkins, supra. Hence, the judgment must be reversed, and at retrial, if DSA presents evidence of mixed motivation for the firing, the jury should be instructed that DSA must prove by a preponderance of the evidence that it would have made the same decision to fire Brown absent the discriminatory factor of age. See Price Waterhouse v. Hopkins, supra; CJI-Civ. 3:5A (1988).
We specially disapprove the court's instruction which provides in pertinent part:
*1014 "In order to find for the plaintiff you must decide that defendants' reasons for plaintiff's discharge were not the real reasons, but only a pretext and excuse for discrimination." (emphasis added)
This instruction, which required the plaintiff to prove that the defendant's stated reasons for the discharge were a pretext, misstates the law. A plaintiff can also prevail if the reasons offered by the employer are legitimate but age discrimination was also a substantial factor in plaintiff's loss of his employment.
The jury instructions given here were erroneous under either the Price Waterhouse v. Hopkins legal standards or those stated in Texas Department of Community Affairs v. Burdine and McDonnell Douglas Corp. v. Green.
Under the later standards these instructions were erroneous, in part, because plaintiff was required to prove that the only reason for his discharge was age discrimination. That instruction is incorrect because under the Texas Department of Community Affairs v. Burdine, and McDonnell Douglas Corp. v. Green standards the illicit reasons of age discrimination need only be a substantial factor in causing the termination. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544 (10th Cir.1988).
We note that the trial court did not have the benefit of the Price Waterhouse v. Hopkins decision; and because the law in this area is unsettled, it is difficult for a trial judge properly to instruct a jury. See Price Waterhouse v. Hopkins, supra. (Kennedy, J., dissenting). Nevertheless, because the primary ADEA instructions misstated the law and were inconsistent, we reverse the judgment under the ADEA claim and remand for a new trial. See Eby v. People, 63 Colo. 276, 165 P. 765 (1917).
II.
On cross-appeal, DSA claims the trial court erred when it refused DSA's jury instruction referring to its right under the National Labor Relations Act to fire a supervisor for union activity. We disagree.
The record demonstrates this case was not tried on this theory, and there was insufficient evidence to support the instruction. Accordingly, the trial court correctly refused it. See Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo.App.1983).
III.
DSA cross-appeals the damage part of the breach of contract claim. The jury verdict stated "lost wages and fringes $12,664.34 less amount earned $6,970.00. Net damages $5,694.34." DSA agrees that the setoff amount of earned income was proper since the jury considered items other than severance pay. It claims, however, that severance paid by DSA to Brown in the amount of $6,600 should have been setoff, resulting in a $1.00 award of nominal damages.
The trial court, in denying DSA's motion to "correct" the jury verdict, noted that the form used by the jury did not include questions concerning each part of the computation. The trial court further found that, since trial testimony indicated Brown's lost wages were more than $12,664.34, the jury could well have reduced that total by the severance pay amount. Since there is evidence in the record to support the trial court's finding, that determination will be upheld on appeal. Thomas v. Bove, 687 P.2d 534 (Colo.App.1984).
The judgment on the ADEA claim is reversed, and the cause is remanded for further proceedings on that claim. The breach of contract judgment is affirmed.
PLANK and REED, JJ., concur.
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25 F.Supp.2d 127 (1998)
INDEPENDENT LIVING AIDS, INC., and Marvin Sandler, Plaintiffs,
v.
MAXI-AIDS, INC., Harold Zaretsky, Mitchel Zaretsky, Elliot Zaretsky and Pamela Zaretsky Stein, Defendants.
No. 95 CV 656(ADS).
United States District Court, E.D. New York.
October 28, 1998.
*128 *129 The Dweck Law Firm, LLP, New York, NY, for Plaintiffs; Jack S. Dweck, Richard A. Hubell, of counsel.
Ruskin, Moscou, Evans & Faltischek, P.C., Mineola, NY, for Defendants; Melvin Ruskin, Mark S. Mulholland, John Demaro, of counsel.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
The facts underlying this case are set forth in the Court's earlier decisions and the trial transcript, and will not be repeated here. Presently before the Court is the renewed motion for attorneys' fees by the plaintiffs, Marvin Sandler and Independent Living Aids (collectively the "plaintiffs" or "ILA").
I. BACKGROUND
The plaintiffs previously moved for attorneys' fees in the amount of $399,467.50, plus interest, as the prevailing party following a jury trial on their trademark (15 U.S.C. §§ 1117[a] and [b]), copyright (17 U.S.C. § 505) and New York General Business Law ("GBL") (GBL §§ 349 and 350) claims. The remaining defendants, Maxi-Aids, Inc., Mitchel Zaretsky, Elliot Zaretsky and Pamela Zaretsky Stein (collectively, the "defendants" or "Maxi-Aids") opposed this motion. In a decision dated July 25, 1998, the Court found it impossible to adequately determine the amount of attorneys' fees to be awarded, if any. The Court emphasized three deficiencies in the earlier fee request. First, the attorneys' time sheets did not indicate which hours were devoted to unsuccessful claims and actions, including: (1) a federal trade dress claim regarding their "Slimline Lo-Vision watches"; (2) federal trademark/service-mark claims regarding the terms "Independent Living," "ILA," "Do More Products," "Maxi-Aids and Appliances for Independent Living" and "Maxi-Aids Products for Independent Living"; and (3) a state law claim for intentional interference with economic benefits relating to bidding procedures. For this reason, the Court afforded the plaintiffs' counsel a "final" opportunity to review their records and determine the number of hours spent on the successful claims and actions. The Court advised the plaintiffs that in the event they are unable to do so, the Court intended to "substantially" reduce the fee application, to reflect that the claims on which the plaintiffs lost and their defense of the libel counterclaim were a major part of their theory of this case.
Second, the Court directed the plaintiffs' attorneys to recalculate their fee request, by reducing their hourly rates for a partner, Jack S. Dweck, and an associate, Richard A. Hubell from $350.00 and $175.00 an hour, to $225 and $135 per hour, respectively.
Third, the Court directed counsel to delete those portions of the request related to subjects which, on their face, had no relation to this case. Such extraneous matters included ILA's subsequently filed RICO lawsuit against the defendants and "estate planning" for the plaintiff Sandler.
Following this decision, the plaintiffs submitted a supplemental motion, allegedly in compliance with the Court's instructions concerning the elimination of certain fees. The following is the revised fee request (in hold), as compared to the initial request (in italics):
Original Revised Original Revised Original Revised
Attorney Hours Hours Rate Rate Total Total
J. Dweck 721.3 735.45 $325 $225 $234,422.50 $165,476.25
R. Hubell 1,098.1 1,066.9 $175 $135 $164,715.00 $144,031.50
H.P. Dweck .7 8 $135 $135 $105 $1080.00
*130
Paralegal 4.5 0 $50 N/A $225 $0
TOTAL 1824.6 1810.35 _____ _____ $399,467.50 $310,587.75
II. THE PLAINTIFFS' MOTION FOR ATTORNEYS' FEES
As noted previously, the plaintiffs prevailed at trial on four causes of action: (1) a federal copyright infringement claim based on Maxi-Aids' "willfully" infringing ILA's copyrights in its 1985 through 1995 catalogs by copying original product listings; (2) a federal trademark/service-mark claim arising from Maxi-Aids' use of the "ILA logo" in its advertising, catalog and sales program, in a manner likely to cause confusion as to the source, (3) a claim arising under GBL § 349 for willful deceptive acts and practices with regard to the defendants' advertising and sale of products; and (4) willful false advertising in violation of GBL § 350. Given that the Court's prior opinion did not address whether the plaintiffs are entitled to attorneys' fees as a prevailing party on these causes of action, it now does so.
A. Attorneys' Fees and Costs: The Standards
1. The Lanham Act
The plaintiffs prevailed on a single Lanham Act cause of action, arising from Maxi-Aids' use of the "ILA logo" in its advertising, catalog and sales program, in a manner likely to cause confusion as to the source. At issue is whether the plaintiffs are entitled to recover counsels' fees for this claim.
The Lanham Act authorizes the award of attorneys' fees in "exceptional cases." 15 U.S.C. § 1117(a). "Exceptional circumstances" exist only where there is evidence of fraud or bad faith. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 194 (2d Cir.1996); Aztar Corp. v. N.Y. Entertainment, LLC, 15 F.Supp.2d 252, 261 (E.D.N.Y. 1998). A finding of "exceptional circumstances" warranting an award of attorneys' fees falls "well within the district court's discretion, and absent evidence of its abuse," will not be disturbed on review. Conopco, Inc. v. Campbell Soup Co., 95 F.3d at 194 (citing Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 114 [2d Cir. 1988], cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 158 [1989]).
This Court, in its exercise of discretion, finds evidence of bad faith on the part of Maxi-Aids, warranting the award of attorneys' fees under the Lanham Act. As set forth in the Court's earlier opinion and the trial transcript, the plaintiffs introduced evidence of at least five violations in each of the five consecutive Maxi-Aids catalogs from 1986 through 1989, by using ILA watches in its advertisements (Plaintiff's Exhibits 9B-9F). Significantly, the defendant Elliot Zaretsky admitted that he advertised, marketed and sold the watches bearing the ILA logo through 1990 (E. Zaretsky: Tr. 2111-17, 2159-63). From this and other proof, the Court finds that the defendants' Lanham Act violations were willful and in bad faith; for these reasons, the Court, in its exercise of discretion, finds that "exceptional circumstances" are present, rendering an award of attorneys' fees appropriate.
2. The Copyright Act
The plaintiffs also seek counsels' fees associated with their federal copyright infringement claim. This claim was premised on Maxi-Aids "willfully" infringing ILA's copyrights of its 1985 through 1995 catalogs by copying original product listings.
The Copyright Act provides that "the court in its discretion may allow the recovery of full costs by or against any party .... [and] may also award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505 (emphasis added). "Attorney's fees are not to be awarded automatically to a prevailing party ... but `only as a matter of the court's discretion.'" Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1011 (2d Cir.1995)(quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 [1994]). However, § 412 limits the district court's discretion to *131 award either attorneys' fees or costs where "any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." 17 U.S.C. § 412(2) (emphasis added); see also Singh v. Famous Overseas, Inc., 680 F.Supp. 533, 536 (S.D.N.Y.1988). A district court's award of attorneys' fees and costs will be reversed on appeal only where the court applied the wrong legal standard or abused its discretion. Knitwaves, 71 F.3d at 1012; Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366 (2d Cir.1993).
The defendants argue that ILA is not entitled to attorneys' fees that might otherwise be awarded to a successful litigant because of the 17 copyright certificates for ILA's catalogs, 15 were not registered within the three-month grace period provided in Section 412(2). The defendants point out that these 17 certificates of registration often were published more than a year before their registration, well beyond the 3-month "grace period" provided in Section 412.
As far as the Court is able to discern, the plaintiffs papers do not directly address this issue. In fact, they do not cite any cases supporting their request for attorneys' fees on the copyright claim. Instead, they state, in conclusory fashion, that they prevailed and are entitled as of right to attorneys' fees under the Copyright Act. The Court disagrees. As stated above, "attorney's fees are not to be awarded automatically to a prevailing party ... but `only as a matter of the court's discretion.'" Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d at 1011. Also, 17 U.S.C. § 412 precludes an award of attorneys' fees where the registration was accomplished more than 3 months after publication. 17 U.S.C. § 412(2). This precludes ILA from obtaining attorneys' fees for its counsels' work on 15 of 17 infringing acts subsumed in their claim. Under similar circumstances, in Knitwaves, Inc., 71 F.3d 996, the Second Circuit discussed a fee application by Knitwaves, which was entitled to fees on some, but not all, of its copyright claims. There, the Court held that because § 412(2) precluded Knitwaves from obtaining attorney's fees relating to its "Leaf Sweater" infringement claim, but not its other infringement claims, the case should be remanded so that the district court could "determine what percentage of work by [Knitwaves'] counsel was devoted to the Leaf Sweater infringement claim, and reduce its award by that percentage." Id. 71 F.3d at 1012.
Similarly, the Court finds and the plaintiffs implicitly concede by not fully responding to the issue that, pursuant to 17 U.S.C. § 412(2), ILA is not be entitled to attorneys' fees on 15 of the 17 catalogs at issue, because they were registered more than 3 months after first publication.
In the Court's opinion, however, ILA is deserving of counsels' fees with respect to the two catalogs at issue which were published within the three-month grace period. In exercising its discretion in this regard, the Court is persuaded by the evidence at trial, which demonstrated that the defendants engaged in willful, wholesale copying of ILA's catalogs for approximately a decade.
For the foregoing reasons, and as discussed more fully below, the plaintiffs shall be awarded attorneys' fees associated with their Copyright claim, albeit substantially reduced to reflect that 15 of the 17 copyrights at issue were registered more than 3 months after their catalogs were published.
3. The New York State Law Claims: GBL §§ 349 and 350
The remaining two claims which the plaintiffs prevailed on, and are at issue in the fee request, are the GBL § 349 and § 350 claims. Unlike the Lanham Act and Copyright Act claims, the defendants do not dispute that the prevailing plaintiffs are entitled to attorneys' fees under GBL §§ 349 and 350. In any event, the Court finds that an award is justified by the applicable statutes. Pursuant to GBL § 349(h) and § 350-e, a "court may award reasonable attorney's fees to a prevailing plaintiff." The awarding of fees under these sections remains in the sole discretion of the court. See, e.g., Beslity v. Manhattan Honda, a Div. of Dah Chong Hong Trading Corp., 120 Misc.2d 848, 467 *132 N.Y.S.2d 471 (1983). A decision in this regard should take into the factors ordinarily considered by New York courts when evaluating requests for attorneys' fees, including the time and skill required in litigating the case, the complexity of issues, the customary fee for the work, and the results achieved. See Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 54 (2d Cir.1992)(citing New York State cases).
As elaborated on below, the Court awards ILA attorneys' fees as the prevailing party on the GBL §§ 349 and 350 claims, taking into account the above factors. In awarding fees, the Court also considers that the purpose of these statutes, as described in the Practice Commentaries, was to combat "fraud against consumers, particularly the disadvantaged." (Givens, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 19, General Business Law § 349, at 574-575). As noted in the Court's earlier decision,
It is clear and unrefuted that the customers at issue are among the most vulnerable in our society: the blind, the elderly, the physically disabled, and the infirm. In the Court's view, Maxi-Aids' false, misleading advertisements of products directed at this population constitutes "public interest" of the highest order.
Accordingly, the plaintiffs' motion for fees for counsels' work performed on the GBL claims is granted, with the amount of the award discussed below.
B. Calculating the Fee Award
As set forth above, the Court concludes that the plaintiffs should be awarded attorneys' fees for their GBL §§ 349 and 350 claims, a small portion of their Copyright claim, and their Lanham Act claim. The Court now determines the amount of the award.
The most useful starting point for determining the amount of an attorneys' fees award for the federal claims is the "lodestar" method. Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989); Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1159 (2d Cir.1994). That method initially estimates the amount of the fee award by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986). As noted above, the Court previously determined the appropriate hourly rates to be $225 an hour for Dweck and $135 and hour for Hubell.
The product of reasonable hours times a reasonable rate does not end the inquiry. "There remain other considerations that may lead the district court to adjust the fee upward or downward." Hensley, 461 U.S. at 434, 103 S.Ct. 1933, 76 L.Ed.2d 40. In considering an adjustment to the lodestar calculation in order to arrive at a "reasonable" amount of an award of attorney's fees, the district court may consider the twelve factors set forth by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974). LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998); United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
However, many of these factors are subsumed within the initial lodestar calculation. Thus, the novelty and complexity of the issues, the quality of representation, the special skill and experience of counsel, and the results obtained are factors fully reflected in the lodestar calculation and cannot serve as independent bases for adjusting the basic fee award. See Delaware Valley Citizens' Council, *133 478 U.S. at 564-65, 106 S.Ct. at 3097-98; United States Football League v. National Football League, 887 F.2d at 415.
In a similar vein, as set forth above, the determination as to the appropriate fees on the GBL claims should include the factors ordinarily considered by New York courts when evaluating fee requests, such as: the time and skill required in litigating the case; the complexity of issues; the customary fee for the work; and the results achieved. See Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d at 54 (citing New York State cases). Since many of these factors overlap with the lodestar considerations, they will be addressed together below.
C. The Plaintiffs' Fee Request
The Court perceives several problems with the plaintiffs' fee request of $310,587.75, leading to the view that it must be "substantially reduced," as forewarned in the earlier decision. First among these problems is that the Court cannot discern which attorney hours were spent on unsuccessful claims and actions taken, which include: (1) a federal trade dress claim regarding their "Slimline Lo-Vision watches"; (2) federal trademark/service-mark claims regarding the terms "Independent Living," "ILA," "Do More Products," "Maxi-Aids and Appliances for Independent Living" and "Maxi-Aids Products for Independent Living"; and (3) a state law claim for intentional interference with economic benefits relating to bidding procedures; (4) an unsuccessful preliminary injunction motion. This problem stems from counsels' time sheets, which do not indicate the nature of the work performed. For example, the time sheets consist almost entirely of such vague entries as "Telephone conversation with client," "Meeting with client," "Preparation for trial" and "Research of the Law." Dweck states that "There has been a removal of all entries which relate to claims or proceedings on which the Plaintiff ILA did not prevail" (Letter of Jack Dweck dated August 3, 1998). Without in any way questioning the good-faith basis for Dweck's statement, there simply is no way to verify it. As emphasized in the Court's earlier opinion, "These records should specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983)(emphasis added). The burden is on counsel to present records "from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir.1987)(applying New York State law and noting that the Second Circuit rule is similar to that of New York)(emphasis added). The failure to specify the nature of the work performed is especially troublesome here, where the Court's prior opinion alerted the attorneys to these concerns, and afforded them an opportunity to amend their request.
In addition, despite the Court's directive that ILA reduce the fee to delete attorney hours devoted to unsuccessful claims and actions, Dweck's total hours have increased by 14.5 hours from the prior fee request, and Hubell's total hours have decreased by a mere 31.2 hours. Had ILA recalculated the initial request based on the Court-imposed hourly rates without eliminating any hours, the fee would total $310,536.00 just a few dollars less than the $310,587.75 they now seek. A related problem with the supplemental fee request is that the Court has decided not to award fees for a substantial portion of attorney hours devoted to the Copyright claim. Also, upon further inspection of the time sheets, the Court finds it inappropriate to award fees for more than 100 attorney hours spent preparing for the second trial; this amount is excessive, in the Court's view, given that much of this preparation was duplicative of the preparation for the first trial, which ended in a mistrial.
For the foregoing reasons, the fee request must be reduced; the remaining question is by how much. "There is no precise rule or formula" for assessing reasonable attorneys' fees where, as here, the plaintiffs have achieved partial success, and in such circumstances the district court "may simply reduce the award to account for the limited success" without undertaking an hour-by-hour calculation. Hensley v. Eckerhart, 461 U.S. at 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In the *134 Court's view, the requested fee should be reduced by one half, from $310,587.75 to $155,293.88. This reduction takes into account the flaws in the fee request outlined above: that the Court cannot discern which attorney hours were devoted to unsuccessful claims and actions taken; that the plaintiffs did not prevail on a substantial number of their original claims; that the plaintiffs are not entitled to fees for the greater portion of their Copyright claim; and that a substantial number of hours are for duplicative trial preparation.
In the Court's opinion, the fee award of $155,293.88 reflects the lodestar and New York State law factors. This was a labor-intensive, time-consuming case for the plaintiffs' attorneys, and one which involved sophisticated, difficult issues of law. In the Court's view, the plaintiffs' attorneys possessed ample skill, and performed their legal services admirably. In addition, the Court credits Dweck's statement that he and his associate were precluded from accepting other cases while this matter was pending. The attorneys achieved a great deal of success by their efforts, as evidenced by the multi-million dollar jury award. In addition, the plaintiffs' attorneys and their law firm are held in high regard and enjoy an excellent reputation. In view of these considerations, an award of $155,293.88 is justified.
III. THE PLAINTIFFS' MOTION FOR COSTS AND DISBURSEMENTS
In addition, the plaintiffs move for costs and out-of-pocket expenses in the amount of $32,412.91. The defendants, apparently, do not object to this amount.
Two of the statutory provisions at issue provide for the award of costs and disbursements to the prevailing party. Under 17 U.S.C. § 505, "the court in its discretion may allow the recovery of full costs,"in addition to attorneys' fees, by a prevailing party in a Copyright action. Similarly, pursuant to 15 U.S.C. § 1117(a), when a trademark violation has been proven, "the plaintiff shall be entitled, subject to the provisions of sections 1111 and 1114 of this title, and subject to the principles of equity, to recover ... the costs of the action." By contrast, GBL §§ 349 and 350 do not mention, and hence do not provide for, a recovery of costs.
Although the defendants apparently do not challenge the award of costs and disbursements, the Court is troubled by the plaintiffs' request. Chief among these concerns is that costs are not allowable under the GBL, which was the basis for two of their four successful claims. For this reason, the Court reduces the plaintiffs' request by one-half, and grants an award of $16,206.46 for costs and disbursements.
IV. INTEREST
Finally, the plaintiffs make a brief, boilerplate pitch for "interest according to law." That "law" is unspecified, as is the rate. The plaintiffs offer no authority for awarding pre-judgment interest in this case; for that matter, they do not explain whether interest is sought with respect to the jury award, attorneys' fees, costs or all three. Given the tortious nature of the claims and the conclusory nature of the request, unsupported by any authority or request for a specified interest rate, the Court declines to award pre-verdict interest.
Nevertheless, the Court considers whether the plaintiffs are entitled to post-verdict, prejudgment interest with respect to the jury award. With respect to the GBL claims, under CPLR § 5002, pre-judgment interest "shall be recovered upon the total sum awarded, including interest to verdict ... from the date the verdict was rendered ... to the date of entry of final judgment. The amount of interest shall be computed by the clerk of the court and included in the judgment." With regard to the trademark claim, although Section 1117(a) does not provide for prejudgment interest, such an award is "within the discretion of the trial court" and, like the award of attorneys' fees, is permissible in "exceptional" cases, such as here. American Honda Motor Co., Inc. v. Two Wheel Corp., 918 F.2d 1060, 1064 (2d Cir. 1990). Somewhat more problematic is the issue of post-verdict, pre-judgment interest in under the Copyright Act. As one district judge in this Circuit observed:
*135 "The law on pre-judgment interest in Copyright Act cases is unsettled in this circuit. In its most recent decision involving this issue, the Second Circuit upheld a district court's denial of pre-judgment interest, but in so doing explicitly declined to rule on the appropriateness of such awards: "[w]e need not address the question of whether prejudgment interest is appropriate in copyright infringement cases generally, because here the district court did not abuse its discretion in declining to make an award." In Design v. K-Mart Apparel Corp., 13 F.3d 559, 569 (2d Cir.1994). Factors considered by the Second Circuit in its review of the district court's exercise of discretion included the size of the award and the plaintiff's willingness vel non to prosecute the action expeditiously."
"In a subsequent district court case, the district judge, while acknowledging that the law on pre-judgment interest remained unsettled in the Second Circuit, interpreted In Design as allowing her the discretion to make such awards: `The issue of the permissibility of pre-judgment interest under the current Copyright Act, which neither expressly allows nor prohibits such an award, is unresolved in the Second Circuit. ... If such an award is permitted, the award of prejudgment interest is discretionary. ...' Softel, Inc. v. Dragon Medical and Scientific Communications, Ltd., 891 F.Supp. 935, 943-44 (S.D.N.Y.1995). While the Softel judge awarded prejudgment interest to the plaintiff, she limited the award to the actual damages portion of plaintiff's claim. The rationale for the award cited in this case was plaintiff's loss of the use of the funds it would have received had the infringement not taken place." Id. 891 F.Supp. at 944.
"While the Second Circuit standards pertaining to awards of pre-judgment interest in copyright cases remain unclear, one point seems firmly established: awards of pre-judgment interest are discretionary."
Antenna Television, A.E. v. Aegean Video Inc., No. 95-CV-2328, 1996 WL 298252, *14 (E.D.N.Y. April 23, 1996).
For the same reason that underlying the award of attorneys' fees, the Court in its exercise of discretion awards the plaintiffs post-verdict, pre-judgment interest on the Copyright claim, in addition to the GBL and Trademark claims. Accordingly, the plaintiffs are hereby awarded post-verdict, pre-judgement interest, to be computed by the Clerk of the Court.
V. CONCLUSION
Having reviewed the parties' submissions, and for the reasons stated above, it is hereby:
ORDERED, that the plaintiffs' motion for attorneys' fees is granted, to the extent the Court awards a total attorneys' fee in the amount of $155,293.88; and it is further
ORDERED, that the plaintiffs' motion for costs and disbursements in granted, to the extent that the Court awards costs in the total amount of $16,206.46; and it is further
ORDERED, that the plaintiffs' request for "interest" is granted, to the extent that the plaintiffs are hereby awarded post-verdict, pre-judgement interest, to be computed by the Clerk of the Court; and it is further
ORDERED, that the Clerk of the Court is directed to enter judgment in favor of the plaintiffs in the following sums: a jury award in the amount of $2,400,000.06 plus post-verdict, pre-judgment interest; costs in the amount of $16,206.46; and attorneys' fees in the amount of $155,293.88; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.
| {
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} |
T.C. Summary Opinion 2003-168
UNITED STATES TAX COURT
PAMELA S. COOPER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8859-02S. Filed December 17, 2003.
Pamela S. Cooper, pro se.
Jeffrey C. Venzie, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of section 7463 of the Internal
Revenue Code in effect at the time the petition was filed. The
decision to be entered is not reviewable by any other court, and
this opinion should not be cited as authority. Unless otherwise
indicated, subsequent section references are to the Internal
- 2 -
Revenue Code in effect for the years in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
Respondent determined deficiencies in petitioner’s Federal
income taxes and additions to tax as follows:
Addition to Tax
Year Deficiency Sec. 6651(a)(1)
1
1995 $1,380 $532
1998 12,968 3,242
1
The Court permitted respondent to amend his answer to assert
a claim for an increased deficiency for 1995 in the amount of
$7,651 and an increase in addition to tax in the amount of
$1,725.75. Thus, the deficiency in dispute for 1995 is $9,031 and
the addition to tax in dispute for that year is $2,257.75. The
increase in deficiency and addition to tax is based on
respondent’s claim that the notice of deficiency for 1995
incorrectly assumed that $7,651 was assessed. Respondent asserts
that the assessment had been erroneously abated prior to issuance
of the notice of deficiency.
The issues for decision are: (1) Whether petitioner is
entitled to all or any part of a claimed casualty loss deduction,
and (2) whether the petitioner is liable for the additions to tax
for late filing pursuant to section 6651(a)(1), as determined by
respondent. Additional adjustments in the notice of deficiency
are computational in nature and will flow from our resolution of
the casualty loss issue.
Background
Some of the facts are stipulated, and they are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. At the time of filing her
petition, petitioner resided in Tinton Falls, New Jersey.
- 3 -
Petitioner purchased her home in Tinton Falls, New Jersey,
in 1985, where she continued to reside until sometime in 1995.
The existing washing machine in the house was conveyed to
petitioner at the time of purchase.
On the morning of August 26, 1994, petitioner went to see
her insurance agent about miscellaneous insurance matters. At
the meeting, she was advised that her homeowner’s policy had
expired. She purchased a new homeowner’s policy with Mercer
Mutual Insurance Company (Mercer or insurance company) that
morning. When petitioner arrived home on the evening of August
26, she discovered that her home was flooded. The cause of the
flood was identified as a split in the hose connecting from the
sink to the washing machine. As a result, the house which is on
a concrete slab, became water soaked. Carpets and furniture were
destroyed. Mold and mildew began to appear throughout the house
within a few days. Petitioner and her daughter had to
temporarily move out of the house. Petitioner, who described
herself as a collector, had many boxes and other items stored in
her home. Petitioner incurred expenses to remove water-soaked
items from the house and for general cleanup and repair. The
cleanup and repair process took many months and was delayed, at
least in part, because of disputes between petitioner and her
insurance company.
- 4 -
In December 1994, petitioner filed a claim for insurance
loss with Mercer. The cause and origin of the loss was described
as “washing machine hose had a small split”. Petitioner listed
the amount of the loss as “Partial loss and damage claimed and
estimated (as of 12/2/94) $38,040.73 Cost of loss is still
mounting because of loss of use, lack of storage space, lack of
funds, inconvenience.” Attached to the claim form are numerous
pages of schedules of listed property. A hand-written list
prepared about the same time reflected the following categories
and amounts of claimed loss:
Total Estimates and Partial List as of 12/2/94
(3 months after flooding–-still no payment)
List Estimate or Cost Total
Part ALoss of work $4,334.58
Part BLoss of vacation 4,482.00
Part CLoss of use 1,954.00
Part DMeals out 2,184.00
Part ETransporting 964.55
Part FSalvage 1,023.00
Part GStorage (so far) 1,052.64
Part HLoss of property 7,387.00
Part IDamaged goods $500.00 500.00
Part JAppliances 1,562.00 1,562.64
Part KRepair to home 7,039.46 7,039.46
Part LMove vs. Trailer
& storage boxes 1,600.00 1,600.00
Part M Carpet 3,957.50 3,957.50
1
Total Partial Claim as of 12/2/94 $38,040.73
1
We note that the correct total is $38,041.37, which varies by an
immaterial amount of $0.64 from what petitioner had calculated and
listed as her total partial claim.
- 5 -
Mercer initially refused to pay any insurance benefits in
response to petitioner’s claim. The insurance company questioned
whether the flood and resulting damage occurred prior to the
policy’s taking effect. Petitioner brought suit against Mercer
in 1995, in the Superior Court of New Jersey. On July 31, 1998,
petitioner received a payment of $12,500 from Mercer in
settlement of her lawsuit and claim. The record does not reflect
how the $12,500 amount was computed.
Petitioner also had been having financial difficulties since
approximately 1989. She stopped paying her mortgage and was
being threatened with foreclosure. In 1993, the Metropolitan
Savings Bank commenced foreclosure proceedings on petitioner’s
residence. On April 27, 1995, the property was sold for $108,750
by the Sheriff of Monmouth County, New Jersey.
Tax Returns
Petitioner filed her 1994 Federal income tax return on
December 7, 1996. On Form 4684, Casualties and Theft, petitioner
reported a total casualty loss in the amount of $102,7411 as a
result of the flood on August 26, 1994. After statutory
reductions, petitioner deducted on Schedule A--Itemized
Deductions, the amount of $95,311.
The copy of petitioner’s 1995 Federal income tax return in the
1
Amounts reflected on the tax returns have been rounded to
the nearest full dollar amount.
- 6 -
record is stamped received by respondent on December 7, 1998.
Respondent’s records do not reflect a 1995 tax return filed prior
to that date. On her 1995 Federal income tax return, petitioner
claimed a casualty loss deduction in the amount of $47,472, which
was a carryover from the 1994 return. Petitioner filed her 1998
Federal income tax return on January 3, 2000. Petitioner had
requested and been granted an extension to file until August 15,
1999. There is no record of any further request or granting of
an extension. Attached to the Federal income tax return is Form
4684, Casualty and Thefts. On her 1998 return, petitioner
reported a total casualty and theft loss of $138,479 and claimed
a loss deduction of $130,851. On the Form 4684, petitioner
calculated the casualty loss as follows:
Real Personal
Property Property
Cost $100,000 $216,330
Insurance
reimbursement 10,000 –--
Fair market value
before casualty 142,000 112,059
Fair market value
after casualty 100,000 5,580
$42,000 $106,479
Less insurance (10,000) ---
$32,000 $106,479
Total $138,479
Less $100 (100)
Less 10% of adjusted gross income 7,528
Claimed loss deduction $130,851
- 7 -
Petitioner allocated $10,000 of insurance reimbursement to
the real property. At about the same time as the filing of the
1998 return, petitioner also filed a Form 1045, Application for
Tentative Refund. Petitioner sought to carry back the casualty
loss claimed on the 1998 return to the 1995 through 1997 tax
years. The application for tentative refund was denied by
respondent. Also, during the year 2000, petitioner submitted2 a
Form 1040X, U.S. Amended Individual Income Tax Return, for 1994.
In the Form 1040X, petitioner sought to reverse the claimed
casualty loss deduction of $95,311 on the theory that it was now
being claimed on the 1998 return and carried back to 1995.
Respondent’s position is that petitioner has not established
that the failure of the washing machine hose, and subsequent
damage, constitute a casualty within the meaning of section 165.
Respondent does not dispute that if a casualty occurred, 1998
would be the proper year to claim the loss. Respondent further
argues that even if a casualty occurred, that petitioner has not
presented sufficient evidence to prove the amount of the
casualty.
Discussion
2
The record does not reflect whether the Form 1040X for
1994 was filed, or whether a remittance was sent with the amended
return. Given respondent’s position in this matter, we assume
that petitioner did not receive the benefit of the casualty loss
deduction claimed on the 1994 return as originally filed and
after consideration of the Form 1040X revising the claimed
casualty loss deduction.
- 8 -
Deductions are a matter of legislative grace, and generally
the taxpayer bears the burden of proving entitlement to any
deduction claimed. Rule 142(a); INDOPCO, Inc. v. Commissioner,
503 U.S. 79, 84 (1992). The burden of proof has not shifted to
respondent pursuant to section 7491(a). While the examination of
the tax returns in issue commenced after July 22, 1998,
petitioner has not satisfied any of the criteria of section
7491(a)(2)(A) and (B).3
Casualty Loss
Section 165(a) and (c)(3) allows an individual a deduction
for loss of property not connected with a trade or business or a
transaction entered into for profit if the loss arises from fire,
storm, shipwreck, or other casualty and was not compensated for
by insurance or otherwise. “Other casualty” is defined as a loss
proximately caused by a sudden, unexpected, or unusual event,
excluding the progressive deterioration of property through a
steadily operating cause or by normal depreciation. Maher v.
Commissioner, 680 F.2d 91, 92 (11th Cir. 1982), affg. 76 T.C. 593
(1981); Coleman v. Commissioner, 76 T.C. 580, 589 (1981). There
3
As previously noted, respondent asserts an increased
deficiency and increased addition to tax for 1995. While Rule
142(a) provides that the burden of proof shall be on respondent
to the extent that there is an increase in deficiency, the
claimed increase results from a computational issue, the
abatement of an assessment by respondent. Petitioner does not
dispute the claimed corrected computation of the deficiency.
Thus, the burden of proof remains with petitioner to establish
the existence of and amount of the casualty loss.
- 9 -
must be a causal connection between the alleged casualty and the
loss claimed by the taxpayer. Kemper v. Commissioner, 30 T.C.
546, 549-550 (1958), affd. 269 F.2d 184 (8th Cir. 1959).
A casualty loss not connected with a trade or business or a
transaction entered into for profit is deductible under section
165(h) only to the extent (1) the loss exceeds $100, and (2) the
net casualty loss exceeds 10 percent of the adjusted gross income
of the taxpayer. The amount of the casualty loss from a partial
destruction of property is the lesser of the taxpayer’s adjusted
basis of the property or the difference in the property’s fair
market value immediately before and after the casualty. Sec.
1.165-7(b)(1), Income Tax Regs. The amount of the loss is
reduced by any insurance recovery and salvage value. Sec.
165(a); sec. 1.165-1(c)(4), Income Tax Regs. To establish the
amount of the loss, the relevant fair market values of the
property “shall generally be ascertained by competent appraisal”
conducted in a manner to ensure that any casualty loss deduction
“be limited to the actual loss resulting from damage to the
property.” Sec. 1.165-7(a)(2)(i), Income Tax Regs. As an
alternative, the taxpayer may use the cost of repairs to prove
the casualty loss (the cost of repairs method). See sec. 1.165-
7(a)(2)(ii), Income Tax Regs.
Whether damage qualifies as a casualty typically turns on
whether the damage satisfies the suddenness requirement, which
denotes an accident, a mishap, some sudden invasion by hostile
agency rather than progressive deterioration of property through
- 10 -
steadily operating cause. Fay v. Helvering, 120 F.2d 253 (2d
Cir. 1941), affg. 42 B.T.A. 206 (1940). In considering whether
termite damage qualified as a casualty, we have held that the
“suddenness” of the loss itself (the lapse of time between the
precipitating event and the loss proximately caused by that
event) is a determining factor. Maher v. Commissioner, 76 T.C.
593, 599-600 (1981), affd. 680 F.2d 91 (11th Cir. 1982); Pryor v.
Commissioner, T.C. Memo. 1987-80.
Respondent, relying upon the cases relating to progressive
deterioration, suggests that the failure of the hose connection
and ensuing damage to the house and personal property do not
constitute a casualty, because the deterioration occurred during
an extended period of time. In this regard, it would appear
appropriate to separate (1) the damage to the washing machine
hose from (2) the consequential water damage resulting from the
failure of the hose. We conclude that the damage to the washing
machine hose resulted from progressive deterioration. The
washing machine was included with the purchase of the house in
1985. Thus, the washing machine and hose connection were at
least 9 years old when the hose failed. It is not unusual that a
rubber hose would deteriorate over a period of years and
ultimately fail. We conclude that the failure of the washing
machine hose was the result of progressive deterioration and not
the result of a sudden event. Thus, the failure of the hose does
- 11 -
not constitute a casualty within the meaning of section
165(c)(3).
Our inquiry, however, does not end there. The damage to
petitioner’s home and personal belongings directly resulted from
the failure of the washing machine hose. The water damage to
petitioner’s house and personal belongings was the result of an
identifiable event, sudden in nature. The failure of the hose
was the precipitating event, and the flooding immediately
thereafter was proximately caused by the event. The damage
resulting from the flood in the house is a casualty within the
meaning of section 165(c)(3). The Commissioner has recognized
the distinction between damage to equipment, which was gradual,
and consequential damage resulting from failure of the equipment.
In Rev. Rul. 70-91, 1970-1 C.B. 37, the Commissioner held as
follows:
A taxpayer suffered rust and water damage to his
rugs, carpets, and drapes when the water heater in his
one-story dwelling burst from normal deterioration
(rust and corrosion) over a period of time and flooded
a portion of the house with water. The taxpayer had no
insurance to reimburse him for these losses.
Held, since the rust and corrosion of the water
heater itself was gradual and progressive, its loss is
not a casualty within the meaning of section 165(c)(3)
of the Internal Revenue Code of 1954.
Held further, the rust and water damage to the
rugs, carpets, and drapes caused by the bursting of the
water heater was the result of an identifiable event,
sudden in nature, fixing a point at which the loss to
the damaged property can be measured, and was also
unexpected or unusual in the context in which the
damage occurred. Therefore, such damage is a casualty
within the meaning of section 165(c)(3) of the Code,
and the taxpayer is entitled to a nonbusiness casualty
- 12 -
loss deduction. The amount of the damage is the lesser
of either (1) the difference between the fair market
value of the property immediately before and
immediately after the casualty, or (2) the adjusted
basis of the property. That amount reduced by $100 is
allowable as a casualty loss deduction.
The Commissioner has neither revoked nor modified Rev. Rul.
70-91, supra.4 Revenue rulings are not binding on this Court, or
other Federal courts for that matter. Rauenhorst v.
Commissioner, 119 T.C. 157, 171 (2002). However, they may serve
to bind the Commissioner in cases in which a longstanding revenue
ruling that has not been revoked or modified is relevant to our
disposition of the case. Id. at 173. Under such circumstances,
we have treated the revenue ruling as a concession by the
Commissioner. Id. at 171-173.
Such treatment of Rev. Rul. 70-91 is warranted in the
present case. We conclude that the dichotomy expressed in the
revenue ruling comports with the casualty loss provisions of
section 165. Based on this conclusion, we hold that petitioner
is entitled to a casualty loss deduction for water damage to her
house and personal belongings to the extent substantiated.5
Substantiation of Loss
Petitioner presented varied disorganized records to
substantiate the loss. Likewise her testimony was often vague
4
Indeed, the Commissioner has relied upon it in issuing a
private letter ruling. See Priv. Ltr. Rul. 8341012 (July 7,
1983).
5
Any claimed loss to the washing machine hose connection
would not be allowable, nor does the record reveal a separate
claim for such loss.
- 13 -
and confusing. Nevertheless, we are satisfied that she suffered
a loss and do our best to reconstruct the amount of the loss. In
this connection, the claimed loss falls into two categories:
(1) Real property (the house), and (2) personal property.
With respect to the real property loss, petitioner claims
that the fair market value of the house immediately before the
casualty was $142,000 and that the fair market value immediately
after the casualty was $100,000. Petitioner testified that she
received an appraisal of the house before the casualty; however,
she did not present it to the Court. Ordinarily an appraisal is
required. Sec. 1.165-7(a)(2)(i), Income Tax Regs. As previously
indicated, the regulations also permit the cost of repairs as
evidence of the amount of loss. Sec. 1.165-7(a)(2)(ii), Income
Tax Regs. However, this must be the cost of repairs actually
made, not merely an estimate of the cost. Lamphere v.
Commissioner, 70 T.C. 391, 395 (1978). Further, the sale of the
house by foreclosure in 1995 for $100,000 (the same amount
reflected as the cost basis in 1984) does not provide us with a
means of determining the amount of any loss. There is not
sufficient evidence in this record to allow petitioner any loss
with respect to the house itself.
We now consider the amount of the loss with respect to
personal property. Petitioner claimed a loss of $106,479.6
6
We note that petitioner submitted not less than four
separate and different schedules of claimed loss. We have
reviewed and considered all the schedules of claimed loss in this
(continued...)
- 14 -
Petitioner’s schedule of loss on the 1998 return reflects the
fair market value of personal property before the casualty as
$112,059 and the fair market value after the casualty as $5,580.
We are satisfied that petitioner did incur some loss. Most of
petitioner’s personal belongings, including clothing,
furnishings, carpeting, and books, were completely destroyed. We
accept petitioner’s assertion as to the fair market value after
the casualty, namely $5,580. We, however, do not accept
petitioner’s assertion as to the fair market value before the
casualty and instead do our best to approximate a reasonable
value. Cohan v. Commissioner, 39 F.2d 540, 544 (2d Cir. 1930).
Further, petitioner is not entitled to a deduction for moving or
storage costs since such expenditures do not represent a loss of
property value. Millsap v. Commissioner, 46 T.C. 751, 762
(1966), affd. 387 F.2d 420 (8th Cir. 1968). Accordingly, the
6
(...continued)
record in an attempt to make some rational sense of petitioner’s
confusing records.
- 15 -
following represents our conclusion as to the amount of
petitioner’s loss:
Fair Market Value Before
the Casualty or Other
Item Cost Related to Casualty
Personal item including
clothing 17,500
Furniture 20,000
Miscellaneous 3,000
Carpet 5,500
Total $46,000
Fair market value
before casualty $46,000
Fair market value
after casualty 5,580
Balance $40,420
Less insurance (12,500)
Casualty Loss $27,920
We conclude that petitioner is entitled to a casualty loss
in the amount of $27,920, as computed above, prior to any
statutory reductions. Sec. 165(h).
Additions to Tax Under Section 6651(a)(1)
Section 6651(a)(1) imposes an addition to tax of 5 percent
per month of the amount of tax required to be shown on the
return, not to exceed 25 percent, for failure to timely file a
return. The addition to tax under section 6651(a)(1) is imposed
unless the taxpayer establishes that the failure was due to
reasonable cause and not willful neglect.7 The record does not
7
Sec. 7491(c) provides that the Commissioner has the
burden of production in any Court proceeding with respect to
(continued...)
- 16 -
establish that the failures to timely file returns for 1995 and
1998 were due to reasonable cause and not willful neglect.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
under Rule 155.
7
(...continued)
liability for an addition to tax. Further, respondent has the
burden of proof with respect to the increased addition to tax for
1995. Rule 142(a). Respondent has established that the tax
returns for 1995 and 1998 were not timely filed.
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420 So.2d 398 (1982)
Theodore S. KEEHN and First Realty Equity Investment Corporation, Appellants,
v.
JOSEPH C. MACKEY AND COMPANY, Appellee.
No. 81-1762.
District Court of Appeal of Florida, Fourth District.
October 13, 1982.
*399 Dewey A.F. Ries, Fort Lauderdale, for appellants.
Michael M. Westerman of Goodman, Pleeter & Webber, Hollywood, for appellee.
GLICKSTEIN, Judge.
In 1977 appellee brought an action on a note in circuit court against appellants. In December, 1979, the Secretary of State issued to appellee a certificate of involuntary dissolution for failure to file its annual report or pay the filing fee therefor. On July 16, 1981, appellants moved to dismiss appellee's complaint alleging appellee was no longer a viable corporation because it had been issued the foregoing certificate; plainly this was an attack on appellee's capacity to sue.[1] Ultimately appellants' *400 motion was unsuccessful and prompted this appeal which appellees, asserting absence of jurisdiction, have moved to dismiss.
We agree with appellee; this appeal cannot be considered reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which permits an appeal of a non-final order determining jurisdiction over the person, because it involves a non-final order on the capacity to sue. See National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 417 So.2d 655, 657 (Fla. 1982) (the supreme court said: "[I]nterlocutory orders relating to the right of plaintiffs to maintain an action generally do not determine the court's jurisdiction over the plaintiffs." Id.).
Nor is there an appropriate underlying basis on which to consider this appeal as a petition for writ of certiorari authorized by Florida Rule of Appellate Procedure 9.040(c). While that rule imposes upon this court the requirement of treating the cause as if the proper rather than improper remedy had been sought, we do not feel constrained to do so in the absence of all the conditions stated in State ex rel. Bludworth v. Kapner, 394 So.2d 541, 542 (Fla. 4th DCA 1981):
Certiorari is a discretionary common law writ which, in the absence of an adequate remedy by appeal, a court may issue to review an order or judgment that is unauthorized or violates the essential requirements of controlling law. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).
In the present case these conditions do not exist; therefore we dismiss the appeal. However, we perceive a legislative gap which warrants attention and which we address with the understanding that our lack of jurisdiction limits us to discussion only. Nothing in section 607.297, Florida Statutes (1981) expressly resolves a situation like the present one where an action is pending at the time of dissolution rather than being brought thereafter.[2] Only by concluding the Legislature must have intended the continuation of actions pending on behalf and in the name of a corporation when it is involuntarily dissolved by the Secretary of State, do we agree with appellee that the foregoing statute was the proper dispositive basis for denial of appellants' motion to dismiss. Unlike the present version of the statute, its predecessor, section 608.30(3), Florida Statutes (1973), bridged the gap by saying that the trustees of a dissolved corporation
shall have power to prosecute and defend, as trustees of the corporation, all suits in progress at the time of dissolution or expiration or thereafter arising as may be necessary for closing the affairs of the corporation... .
We believe the gap in the present statute is simply the result of oversight, not design. Section 607.301, Florida Statutes (1981), which spells out the duties and responsibilities of those acting as trustees for a dissolved corporation, does not provide for bringing or defending actions. Were the legislative gap not filled, there would be no authority for continuing actions pending by or against corporations subsequently dissolved involuntarily by the Secretary of *401 State. Such anomaly plainly was not intended by the Legislature. However, because we must dismiss this appeal because of the lack of this court's jurisdiction, we are limited to discussion of this subject and are precluded from any holding in regard thereto.
APPEAL DISMISSED.
HURLEY and DELL, JJ., concur.
NOTES
[1] "Capacity to sue" is an absence of legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to "standing" which requires an entity have sufficient interest in the outcome of litigation to warrant the court's consideration of its position. Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So.2d 1066 (Fla. 2d DCA), pet. for rev. denied, 389 So.2d 1108 (Fla. 1980). Appellants also argued in their motion to dismiss that it was impossible for appellee to re-incorporate since one of the appellants controlled the appellee's corporate "name." While this appears to be another apparent attack on appellee's capacity to sue, this point is not argued on appeal.
Florida Rule of Civil Procedure 1.120(a) provides:
Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
This court said in Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463, 466 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla. 1976):
The "specific negative averment" referred to in Rule 1.120 may be reflected in a responsive pleading (answer) or presumably in what might be described as a "speaking motion" whether denominated as a motion to dismiss, a motion to drop improperly joined parties, or a motion to strike.
The Second District Court of Appeal held, in a case in which the defect did not appear on the face of the complaint, that appellant's motion to dismiss was insufficient as a specific negative averment. Seminole Tribe of Florida, Inc. v. Courson, 183 So.2d 569 (Fla. 2d DCA 1966).
A complaint's facial defect can be attacked appropriately for lack of capacity to sue pursuant to Federal Rule of Civil Procedure 9(a) (upon which Florida Rule 1.120(a) was patterned identically) by a motion to dismiss which can be justified under Federal Rule of Civil Procedure 12(b)(6), i.e., failure to state a claim upon which relief can be granted. Klebanow v. New York Produce Exchange, 344 F.2d 294 (2d Cir.1965). See also 2A J. Moore & J. Lucas, Moore's Federal Practice ¶¶ 12.07-.08 (2d ed. 1982), and 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1292-1295, 1360 (1969 & Supp. 1981).
[2] Section 607.297 provides:
Survival of remedy after dissolution. The dissolution of a corporation either:
(1) By the issuance of a certificate of dissolution by the Department of State;
(2) By a decree of court; or
(3) By expiration of its period of duration shall not take away or impair any remedy available to or against such corporation or its directors, officers, or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of 3 years so as to extend its period of duration.
(Emphasis supplied.)
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3473
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeremy Strom
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
____________
Submitted: August 1, 2019
Filed: August 6, 2019
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
Jeremy Strom directly appeals the below-Guidelines sentence the district court1
imposed after he pled guilty to a drug offense and witness tampering. His counsel has
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
moved for leave to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that Strom was erroneously classified as a career offender
based in part on his prior conviction for Iowa assault with a dangerous weapon.
Counsel also suggests that Strom’s sentence is substantively unreasonable.
First, we conclude that Strom was not erroneously classified as a career
offender, in light of United States v. McGee, 890 F.3d 730 (8th Cir. 2018) (Iowa
assault while displaying dangerous weapon under Iowa Code Ann. §§ 708.1 and
708.2(3) is crime of violence). Next, we conclude that Strom’s sentence is not
substantively unreasonable, as it was below the calculated Guidelines range, and there
is no indication that the district court overlooked a relevant factor, gave significant
weight to an improper or irrelevant factor, or committed a clear error of judgment in
weighing appropriate factors. See United States v. Feemster, 572 F.3d 455, 461-62
(8th Cir. 2009) (en banc) (discussing substantive reasonableness).
Having reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
we have found no non-frivolous issues for this panel’s consideration. We therefore
affirm, and counsel’s motion for leave to withdraw is granted.
______________________________
-2-
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841 F.Supp. 1087 (1994)
UNITED STATES of America, Plaintiff,
v.
Alejandro Diego ORNELAS, Defendant.
No. 93-CR-317.
United States District Court, D. Colorado.
January 12, 1994.
*1088 Thomas O'Rourke, Asst. U.S. Atty., Denver, CO, for plaintiff.
Raymond Moore, Asst. Federal Public Defender, Denver, CO, for defendant.
ORDER DENYING MOTION TO DISMISS INDICTMENT
CARRIGAN, District Judge.
On October 7, 1993, a federal grand jury returned an indictment charging that eighteen year old Alejandro Diego Ornelas had violated 18 U.S.C. § 922(q)(1)(A). The indictment alleged that on August 31, 1993, Mr. Ornelas knowingly had possessed, in and near the grounds of West High School in Denver, Colorado, a Bryco-model 48 .380-caliber pistol that had been transported in interstate commerce. Mr. Ornelas has moved to dismiss the indictment. The government has responded by opposing that motion. The issues have been briefed, and oral argument has been heard.
Section 922(q)(1)(A), enacted as part of the Comprehensive Crime Control Act of 1990,[1] provides in pertinent part:
"It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe is a school zone."
A "school zone" is defined by the statute as a place:
"(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1000 feet from the grounds of a public, parochial or private school." 18 U.S.C. § 921(a)(25).[2]
*1089 In defining the crime, Congress did not expressly provide as an element any nexus with interstate commerce. That is, Congress omitted the language usually found in such statutes to invoke federal jurisdiction under the Commerce Clause: a requirement that the gun involved had travelled in interstate commerce. Nor is it apparent that Congress intended to rest federal jurisdiction on the spending power, as in statutes regulating schools that receive federal funds, or on federally protected civil rights, frequently invoked to justify federal regulation of local schools. Thus the courts are left to guess at the federal jurisdictional ground intended by Congress, if Congress considered the matter at all. The government suggests the Commerce Clause must have been the intended nexus, and, in an effort to cover the statute's facial omission, has alleged in the indictment that the gun had travelled in interstate commerce.
Mr. Ornelas has filed a motion to dismiss the indictment, claiming that § 922(q) violates the Tenth Amendment to the United States Constitution,[3] and that Congress exceeded its authority under the Commerce Clause by enacting it.[4] Mr. Ornelas' motion relies upon United States v. Lopez, 2 F.3d 1342 (5th Cir.1993), which reversed a § 922(q) conviction because "Congress has not done what is necessary to locate section 922(q) within the Commerce Clause." Id. at 1368.
I. ANALYSIS.
Some courts, including our highest Court, have held that under Congress's extensive commerce power, it may regulate a class of activities that affects interstate commerce without proof or special findings that any particular intrastate activity within that class had an effect on interstate commerce. Thus, in reviewing the validity of a statute under the Commerce Clause, a court must determine whether Congress reasonably could have found a nexus between the class of regulated activity and interstate commerce. Perez v. United States, 402 U.S. 146, 152-56, 91 S.Ct. 1357, 1360-61, 28 L.Ed.2d 686 (1971); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); United States v. Holland, 841 F.Supp. 143 (E.D.Pa.1993).
A. Congress's Powers Under the Commerce Clause Are Extensive.
The United States Supreme Court recognized the broad scope of congressional authority under the Commerce Clause as far back as 1824. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed. 23 (1824). Since that time,
"[t]he volume of interstate commerce and the range of commonly accepted objects of government regulation have ... expanded considerably ... and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power." New York v. United States, ___ U.S. ___, ___ - ___, 112 S.Ct. 2408, 2418-19, 120 L.Ed.2d 120 (1992).
Indeed, only twice in the past fifty-six years has the Supreme Court held legislation to be beyond the scope of Congress's commerce power, and one of those decisions was overruled nine years later. See id.; National *1090 League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro. Transit. Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). In overruling National League of Cities, the Garcia Court stated, "State sovereign interests ... are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." 469 U.S. at 552, 105 S.Ct. at 1018.
B. Congress May Regulate Intrastate Activities That Affect Interstate Commerce and Need Not Explicitly Require Proof of a Commerce Nexus in Each Statute.
Mr. Ornelas emphasizes that, unlike various other federal criminal statutes enacted under the authority of the Commerce Clause, § 922(q) does not require the government to prove a nexus to interstate commerce as an element of the offense. In plain language, he points out that the statute he attacks does not require proof that the gun possessed had travelled across a state line, as is required by nearly all other federal firearms statutes. However, under its extensive commerce power, Congress may regulate purely intrastate activities that affect interstate commerce,[5] and it need not require proof of a nexus between the activity and interstate commerce. See, e.g., Perez v. United States, 402 U.S. 146, 153, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (upholding 18 U.S.C. §§ 891-894, which prohibit extortionate credit transactions but do not expressly require proof of an interstate commerce nexus); United States v. Hale, 978 F.2d 1016, 1018 (8th Cir.1992) and United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991) (upholding 18 U.S.C. § 922(o) and 26 U.S.C. § 5861, which prohibit, inter alia, possession of machine guns and unregistered firearms but do not expressly require proof of an interstate commerce nexus); United States v. Lane, 883 F.2d 1484, 1492 (10th Cir.1989) (upholding 18 U.S.C. § 245(b)(2)(C), which prohibits interference with applications for or enjoyment of private employment because of race, color, religion, or national origin but does not expressly require proof of an interstate commerce nexus).
C. Congress Need Not Make Particularized Findings in Order to Legislate.
Not only may Congress regulate purely intrastate activities without requiring proof of a nexus to interstate commerce, the Supreme Court has indicated that Congress need not make particularized findings in order to legislate in this area. Perez, 402 U.S. at 156, 91 S.Ct. at 1362.[6] Under Perez, Congress properly may regulate a class of activities that affects interstate commerce without proof that the particular intrastate activity regulated had an effect on commerce. Id. at 152, 91 S.Ct. at 1360; see also id. at 154, 91 S.Ct. at 1361 ("Where the class of activities is regulated and that class is within the reach of the federal power, the courts have no power `to excise, as trivial, individual instances' of the class." (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968))); United States v. Smaldone, 485 F.2d 1333 (10th Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974) ("[A]ctivities within a regulated class of activities which do not exceed the reach of the federal power under the Commerce Clause need not be shown, in each individual case, to affect interstate commerce."). The only function of the courts, *1091 therefore, is to determine whether the activity regulated is within the reach of the federal power. United States v. Darby, 312 U.S. 100, 120-21, 61 S.Ct. 451, 460, 85 L.Ed. 609 (1941).
In making that determination, courts appropriately may consider the history of other, earlier legislation regulating the same class of activities.[7] The Tenth Circuit followed this approach in United States v. Lane, 883 F.2d 1484 (10th Cir.1989). Defendants in Lane challenged 18 U.S.C. § 245(b)(2)(C), which criminalized interference with applications for or enjoyment of private employment because of race, color, religion, or national origin. They argued that the statute had not been validly enacted pursuant to Congress's commerce power because there were no legislative findings regarding the effect of racial discrimination on interstate commerce. Id. at 1487, 1492.
The court, however, quoted Perez and declared: "Congress is not required to make `particularized findings in order to legislate.'" Id. at 1492. The court noted that, although Congress had made no interstate commerce findings in 1988, when it enacted 18 U.S.C. § 245, it had "heard extensive evidence on the burdens that racial discrimination places on interstate commerce in connection with its enactment of the Civil Rights Act of 1964." Id. The court concluded that there was no reason Congress could not have relied upon that earlier evidence to support § 245 as well. Id.
Similarly, the Eighth Circuit in Hale, 978 F.2d 1016, 1018 (8th Cir.1992), considered the legislative history of the original § 922, promulgated as part of the Omnibus Crime Control and Safe Streets Act of 1968. The court noted that, although Congress had made no interstate commerce findings in 1986 when it enacted 18 U.S.C. § 922(o) regulating the possession of machine guns,
"[w]hen it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce power. The 1986 amendments to section 922 added sub-section (o) without substantially altering the findings of fact on this point." Id.
This, the court concluded, was sufficient evidence that § 922(o) had been validly enacted pursuant to Congress's commerce power. Id.[8]
D. Section 922(q) Was Validly Enacted Pursuant to Congress's Commerce Power.
The Eighth Circuit's analysis in Hale with respect to § 922(o) is equally applicable to § 922(q). Both statutes regulate the possession of firearms. Both amended the original § 922. Neither expressly requires proof of an interstate commerce connection. And neither was accompanied by legislative findings regarding interstate commerce. Compare Pub.L. No. 99-308, 100 Stat. 449 (1986) (§ 922(o)) with Pub.L. 101-647, 104 Stat. 4789, 4789-4968 (1990) (§ 922(q)).
Moreover, like the 1986 amendments to § 922, the Comprehensive Crime Control Act of 1990 did not "substantially alter[] the findings of fact" that supported Congress's enactment of the Omnibus Crime Control and Safe Streets Act of 1968. Hale, 978 F.2d at 1018.[9] Congress made several specific findings relating to interstate commerce in *1092 1968 when it enacted the Omnibus Act: for instance it found widespread traffic in firearms moving in or otherwise affecting interstate commerce, Pub.L. No. 90-351, § 901(a)(1), 82 Stat. 197, 225 (1968), and a causal relationship between the easy availability of firearms and juvenile crime. Id. at 225-26. As Justice Powell observed in Fullilove, there is no reason why Congress, when enacting legislation, cannot rely on:
"the information and expertise [it] acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area." 448 U.S. at 503, 100 S.Ct. at 2787 (Powell, J., concurring).
Finally, although the Lopez court states that a House Judiciary Subcommittee hearing on the proposed § 922(q) mentioned no evidence indicating that possessing guns in and near schools affects interstate commerce, 2 F.3d at 1366, the record reflects that the police chief of Cleveland, Ohio, testified as follows:
"We have identified gang members coming from Los Angeles, Chicago, Detroit, and other areas of the country, coming into the Cleveland area and trying to organize our gangs.... We have reason to believe that they are also supplying them with weapons." The Gun-Free School Zones Act of 1990: Hearing Before the Subcomm. on Crime and the Comm. on the Judiciary, 101st Cong., 1st Sess. (1990) (statement of Edward Kovacic).
The chief stated that these gang members undoubtedly were bringing weapons into Ohio from other states and suggested that the federal government could help solve the problem. Id. This testimony alone supports the conclusion that Congress reasonably could have found a nexus between § 922(q) and interstate commerce. Cf. Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942) (upholding legislation setting a quota for the production of wheat intended wholly for home consumption because "Congress may properly have considered that wheat consumed on the farm where grown ... would have a substantial effect in defeating and obstructing its purpose to stimulate trade," apparently on the theory that when the price rose, wheat originally intended for on-farm consumption would be released to the market, thus suppressing prices interstate).
In short, there is ample evidence that Congress reasonably could have found that a nexus exists between the class of activity regulated by § 922(q) firearms possession and interstate commerce.
II. CONCLUSION.
This court clearly is not bound by the Fifth Circuit's decision in Lopez. It is, however, bound to follow the Tenth Circuit, which has adopted the Supreme Court's approach in Perez. Under Perez, Congress need not make new particularized findings of an interstate commerce nexus in order to legislate. Rather, Congress properly may regulate a class of activities that is within the reach of the federal power, and courts may not excise individual instances of the class.
Here, the class of firearms possession has been held to be within reach of the federal interstate commerce power, as evidenced by Congress's findings in connection with the Omnibus Crime Control and Safe Streets Act of 1968. Under established precedents there is no question but that Congress reasonably could have found a nexus between firearms possession and interstate commerce.
Indeed, very few activities exist regarding which Congress could not reasonably find an interstate commerce nexus. That is why the Lopez court was able to discover "no Supreme Court decision in the last half century that has set aside [congressional findings supporting a commerce nexus] as without a rational basis." Lopez, 2 F.3d at 1363 n. 43. Perhaps unfortunately, Congress's legislative power under the Commerce Clause has become a virtual blank check,[10] a fact that *1093 courts may well find repugnant to separation of powers doctrine, upon which the United States government is constructed. However, as stated above, the Supreme Court has declared that:
"[t]he principal and basic limit on the federal commerce power is that inherent in all congressional action the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that the laws that unduly burden the States will not be promulgated." Garcia, 469 U.S. at 556, 105 S.Ct. at 1020 (emphasis added).
The 1985 Garcia decision came down before the current rush in Congress to federalize crimes previously considered state and local offenses. Unfortunately, the Garcia Court's confidence in the political process to deter the zeal of Congress to centralize prosecutorial power may have been too optimistic. Indeed, apparently irresistible political pressures to be perceived as "tough on crime" are driving Congress to federalize crimes such as that here charged, in circumstances where clear-minded, objective analysis can discern no meaningful effect on interstate commerce in the sense intended by the Commerce Clause. Nevertheless, this court is bound to recognize and follow decisions of the Supreme Court and the Tenth Circuit defining the scope of Congress's commerce power.[11] Therefore, I reluctantly conclude, as I must, that § 922 is within the reach of *1094 that power.[12]
Accordingly IT IS ORDERED that, for the reasons set forth above, Mr. Ornelas' motion to dismiss the indictment is denied.
NOTES
[1] The Comprehensive Crime Control Act of 1990, Pub.L. No. 101-647, 104 Stat. 4789, 4789-4968 (1990), amended the original § 922. The original § 922 was enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. No. 90-351, § 902, 82 Stat. 197, 226-35 (1968). Later that year, before the Omnibus Crime Control Act became effective, Congress reenacted § 922 as part of the Gun Control Act of 1968, the stated purpose of which was "to provide for better control of the interstate traffic in firearms." Pub.L. No. 90-618, §§ 101-02, 82 Stat. 1213, 1213-14 (1968).
The original § 922 also was amended in 1986 by the Firearm Owner's Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986), which added subsection 922(o), discussed infra.
[2] The statute provides exceptions not applicable here. It further provides punishment by imprisonment up to five years, a fine up to $5000, or both, plus a supervised release term up to one year, yet the crime is denominated a misdemeanor rather than a felomeanor.
[3] The Tenth Amendment provides:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
If a power is delegated to Congress by the Constitution, it cannot be reserved to the states by the Tenth Amendment. New York v. United States, ___ U.S. ___, ___, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992). Thus, if enacting § 922(q) was a lawful exercise of Congress's legislative power under the Commerce Clause, the Tenth Amendment is not violated.
[4] The Commerce Clause provides in pertinent part:
"The Congress shall have power ... to regulate commerce ... among the several States...." U.S. Const. art. I, § 8, cl. 3.
[5] "Even activity that is purely intrastate in character may be regulated by Congress, where the activity ... affects commerce among the States or with foreign nations." Fry v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363 (1975).
[6] The Lopez court noted, but discarded, the United States Supreme Court's language in Perez, saying, "No citation is given, nor is the meaning of [that] sentence entirely clear." Lopez, 2 F.3d at 1362 n. 41. The Lopez court rested its decision largely on the ground that Congress had failed to make particularized findings that possession of firearms substantially affects interstate commerce. See Lopez, 2 F.3d at 1364 ("[I]n such a situation there is nothing to indicate that Congress itself consciously fixed, as opposed to simply disregarded, the boundary line between the commerce power and the reserved power of the states.").
[7] In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Supreme Court considered the "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977. To determine whether the provision's objectives were within Congress's power, the Court examined the "background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity," id. at 463, 100 S.Ct. at 2767, and concluded that, "[a]gainst this backdrop of legislative and administrative programs, it is inconceivable that Members of both Houses were not fully aware of the objectives of the MBE provision and of the reasons prompting its enactment." Id. at 467, 100 S.Ct. at 2769.
[8] See also Evans, 928 F.2d at 862 (upholding § 922(o) upon finding that it was reasonable for Congress to conclude that possession of firearms affects the national economy, "if only through the insurance industry.").
[9] Indeed, a House Report outlining the purposes of the Comprehensive Crime Control Act of 1990 "echo[es] the concerns articulated in 1968." Holland, 841 F.Supp. at 143, 144; see H.R.Rep. No. 681(I), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6473.
[10] Even where Congress makes particularized findings of an interstate commerce nexus regarding its Commerce Clause enactments, the regulation of commerce most often is not what has motivated Congress to act. Thus, such findings have become mere technicalities: if the Supreme Court were to invalidate § 922, Congress simply would make the requisite findings, which would have to be upheld "if there is any rational basis" for them, and reenact the provision.
[11] The District Court for the District of Alabama, relying on Lopez, held § 922(q) unconstitutional in an opinion that reflects judicial frustration with the pace at which Congress is federalizing the criminal law. United States v. Morrow, 834 F.Supp. 364 (N.D.Ala.1993). That frustration also is evident in United States v. Cortner, 834 F.Supp. 242 (M.D.Tenn.1993), which holds that the federal carjacking statute, 18 U.S.C. § 2119, exceeds Congress's commerce power. But see United States v. Watson, 815 F.Supp. 827, 830-31 (E.D.Pa.1993) ("[T]he power of Congress to regulate as it did in [18 U.S.C.] § 2119 cannot be seriously questioned.").
This court shares the concern expressed by the Morrow and Cortner opinions, that in its haste to define as federal crimes conduct traditionally subject only to state or local regulation and prosecution, Congress is stretching the commerce power far beyond its intended scope, and thus emasculating the Tenth Amendment's clear intent to reserve regulation of conduct that does not affect interstate commerce to the states and the people.
Indeed Colorado has a statute exercising that reserved power by defining as a crime the possession of a gun on school property. See Colo. Rev.Stat. § 18-12-105.5. Section 922, like the numerous narcotics laws making federal crimes of conduct already criminal under state statutes, grants unelected federal prosecutors vast power and discretion to pick and choose which defendants shall be prosecuted in the state courts, and which in federal courts where much greater penalties are imposed, and without the possibility of parole. While this court has no argument with substantial punishment for persons who violate the law, those who commit the same misconduct under similar circumstances should not be given disparate sentences at the whim of a prosecutor who can choose either to prosecute under a harsh federal statute or leave the matter to state prosecution under a comparatively lenient statute.
The current race to federalize state crimes epitomizes the very tendency most feared by those who wrote and ratified the Constitution: a strong central government relegating to itself all power. That concern led them to assure future generations that the central government would be restrained by a constitution giving it only powers there expressly granted and enumerated. The Tenth Amendment reserved to the states and the people all powers not so granted. Those farsighted constitutional draftsmen foresaw that locally elected prosecutors were more likely to respect the liberties of the people than officials appointed by, and answerable only to, a far off, national government. It would have seemed absurd to them for anyone to argue that the Commerce Clause intended as it was to prevent state and local tariffs, and other trade barriers, hampering interstate and foreign commerce authorized the federal government to criminalize carrying a gun within three blocks of a public or private school or college. While it is for Congress, not courts, to make laws, Congress may do so only subject to the Constitution. And it is for courts, not Congress, to interpret the Constitution and declare when Congress has overstepped its bounds. If the Tenth Amendment retains any vitality whatever in the area of criminal law, that remnant is fast being eroded. Under existing case law, only appellate courts can halt that erosion. Here Congress has not expressed in any way an interstate commerce nexus to support the instant statute or a rationale to suggest to a court how carrying a gun within 1,000 feet of a school "affects" interstate commerce. This court, as much as Congress, decries carrying guns to school, but that is not the issue here. Were I not bound by precedents of the Supreme Court and the Tenth Circuit, I would hold § 922(q) unconstitutional as violating the Tenth Amendment.
[12] Apparently in an effort to mitigate any perceived constitutional problem with § 922(q), the government obtained an indictment charging, as an element of the offense, that the pistol "had been shipped and transported in interstate commerce." See Lopez, 2 F.3d at 1368 ("Conceivably, a conviction under section 922(q) might be sustained if the government alleged and proved that the offense had a nexus to commerce."). Mr. Ornelas, however, does not argue that an otherwise constitutional statute is unconstitutional as applied to him. Instead he argues that the statute is facially unconstitutional because Congress lacked the authority to enact it. The language of the indictment has no bearing on Congress's authority, for neither the United States Attorney nor the grand jury can amend or rewrite the statute to cure a facial defect. It would be an odd twist on the separation of powers doctrine to allow a federal prosecutor to supplement Congress's Article I powers through artful pleading.
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817 P.2d 927 (1991)
Swanee F. SWAIN, Appellant,
v.
STATE of Alaska, Appellee.
Mark C. ELLIS, Appellant,
v.
STATE of Alaska, Appellee.
No. A-2913.
Court of Appeals of Alaska.
September 20, 1991.
*928 Rex Lamont Butler, Anchorage, for appellant Swain.
Steven E. Sumida, Law Offices of John C. Pharr, Anchorage, for appellant Ellis.
Shelley K. Chaffin, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS, J., and ANDREWS, Superior Court Judge.[*]
OPINION
BRYNER, Chief Judge.
Swanee F. Swain and Mark C. Ellis were convicted by a jury of robbery in the first degree, burglary in the first degree, and assault in the third degree. They moved for a new trial, alleging misconduct by one of their jurors. Superior Court Judge Beverly W. Cutler denied the motion. On appeal, Swain and Ellis contend that the court erred in failing to order a mistrial. We remand.
The state's evidence at trial indicated that, on November 17, 1986, Swain and Ellis entered the Keck residence near Wasilla; they held John Schreiber, who was housesitting, at gunpoint while they stole money, property, and cocaine. The two men were accompanied by Mark Ellis' sister, Tina Ellis. Before leaving the residence, Swain and Ellis tied Schreiber up and knocked him out by hitting him over the head with a large porcelain object apparently a flower pot. Schreiber did not immediately report the robbery, evidently because drugs were involved.
About two months later, in January of 1987, Ellis, his sister, and another man not Swain committed a similar burglary and robbery at a different Wasilla residence. In the course of the crime, Tina Ellis held the homeowner, Carla Schmelzer, and Schmelzer's infant daughter at gunpoint.
Later in 1987, after being implicated in the Schmelzer robbery, Tina Ellis agreed to cooperate with the state and reported participating with Swain and Ellis in the November 17, 1986, burglary and robbery at the Keck residence. The police contacted Schreiber, who confirmed Tina Ellis' account of the incident. Schreiber was unable to identify Tina Ellis' accomplices, however, because he had had insufficient opportunity to view them.
Swain and Ellis were subsequently charged and jointly tried for breaking into the Keck residence and robbing Schreiber. At trial, Tina Ellis and Schreiber were the primary prosecution witnesses. The trial court allowed the jury to hear that Tina Ellis had been implicated in the subsequent burglary and robbery of the Schmelzer residence. However, the court issued a protective order precluding any mention of Mark Ellis' involvement in that offense.
*929 The jury convicted Swain and Ellis on all charges. Prior to sentencing both men moved for a mistrial, claiming among other things that, during trial, one of the jurors, Darcella Perry, had received prejudicial information from extrinsic sources concerning the Schmelzer robbery.
In support of the mistrial motion, Swain and Ellis submitted an affidavit signed by Carla Schmelzer, victim of the Schmelzer robbery. Schmelzer disclosed that she was acquainted with Perry and that Perry occasionally baby-sat for her. According to the affidavit, Schmelzer had originally told Perry about the robbery at her house shortly after it occurred; she did not know at the time, however, who had committed it.
Schmelzer's affidavit further claimed that Schmelzer spoke with Perry about the robbery again on March 20, 1988, while Swain and Ellis' trial was in progress. According to the affidavit, Perry mentioned that she was on jury duty; Schmelzer, who was on standby as a potential prosecution witness in the case, was aware that the trial was in progress. Schmelzer's affidavit stated: "I asked Darcy [Perry] if it was Tina Ellis' trial on which she was to serve. She buried her hands in her face, shocked that I knew. I told her about the robbery of my house by Tina and Mark Ellis. She did not know that that was the case beforehand or she wouldn't have gotten in."
The state opposed Swain and Ellis' motion for mistrial. In opposition to Schmelzer's affidavit, the state filed the affidavit of its trial counsel describing an interview he had with juror Perry. The state also submitted a transcript of an interview of Perry conducted by an Alaska State Trooper. These documents disclosed that Perry acknowledged her acquaintance with Schmelzer and admitted being generally aware, just prior to Swain and Ellis' trial, that Schmelzer had been robbed about a year previously. Perry claimed, however, that she did not remember Schmelzer having described the robbery in detail.
Perry further acknowledged speaking with Schmelzer while Swain and Ellis' trial was in progress. She recalled Schmelzer mentioning that Tina Ellis had robbed her. However, Perry claimed no recollection of Schmelzer saying that Mark Ellis had also been involved in that robbery. According to Perry, as soon as Schmelzer mentioned Tina Ellis' participation in the Schmelzer robbery, Perry told Schmelzer that it would be improper to say anything more about the case. Perry admitted asking Schmelzer not to mention their conversation to anyone. She explained that she did not report her conversation to the court because she thought that information concerning the Schmelzer robbery was irrelevant to the charges for which Swain and Ellis were on trial. Perry insisted that her vote as a juror was not influenced by her communication with Schmelzer. She further gave assurances that she never discussed any of the information she learned from Schmelzer with other members of the jury.
To bolster this latter claim, the state submitted additional affidavits from two other jurors, who confirmed that Perry never mentioned, and the jury never discussed, the possibility of Swain and Ellis' participation in the Schmelzer robbery.
After reviewing the pleadings and hearing oral argument, Judge Cutler denied the motion for a mistrial. The judge found credible Perry's claim that her conversation with Schmelzer had not influenced her decision as a juror. Relying on the affidavits of other jurors, Judge Cutler further concluded that Perry had never discussed the Schmelzer conversation with other jurors. On this basis, the judge concluded that no prejudice had been shown and that Swain and Ellis would not be entitled to relief even if Schmelzer's account of her conversation with Perry were taken as true.
Swain and Ellis moved for reconsideration, requesting an opportunity for an evidentiary hearing. Judge Cutler held an evidentiary hearing, at which Schmelzer and Perry testified. Both witnesses essentially reiterated the positions they took in the initial, written pleadings. At the conclusion of the hearing, Judge Cutler reaffirmed her original decision, stating, in relevant part:
Seeing the juror live say that she really doesn't think it affected her, I don't see *930 any reason to believe that it affected her. There's no showing that the fact that she knew Tina Ellis and maybe Mark Ellis had robbed another residence was that that information was given to any of the other jurors, so the only juror who needs to be examined is her, and examining her it really appears that she's saying it just did not affect her verdict in any way, and I believe that.
On appeal, Swain and Ellis contend that Judge Cutler erred in failing to order a new trial. They argue that Perry's ability to render a fair and impartial verdict was impaired by her exposure to prejudicial information concerning Mark and Tina Ellis' participation in the Schmelzer robbery. They also argue that Perry's failure to disclose her acquaintance with Schmelzer and her conversation concerning the Schmelzer robbery amounts to misconduct depriving them of a fair trial.
These arguments require us to consider two related lines of cases: the first deals with situations in which jurors are exposed to potentially prejudicial matter outside the trial record; the second deals with instances of jury misconduct threatening the integrity of the verdict.
The first line of cases is exemplified by this court's recent decision in Ciervo v. State, 756 P.2d 907 (Alaska App. 1988), a case in which several jurors were exposed to a newspaper story disclosing that the defendant had previously entered and withdrawn a no contest plea to the charge at issue.
Relying on Watson v. State, 413 P.2d 22, 25 (Alaska 1966), an Alaska Supreme Court case involving exposure of jurors to publicity, this court recognized that "[e]ach case of juror exposure to publicity ... must turn on its special facts." Ciervo, 756 P.2d at 910. We went on to refer to the ABA Standards for Criminal Justice as an appropriate guide for determining when the facts of a given case require a mistrial:
The ABA Standards for Criminal Justice set forth the following standard for determining when motions for mistrial should be granted:
On motion of the defendant, the verdict of guilty in any criminal case shall be set aside and a new trial granted whenever, on the basis of competent evidence, the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted. Nothing in this recommendation is intended to affect the rules or procedures in any jurisdiction concerning the impeachment of jury verdicts.
Id. (quoting II Standards for Criminal Justice § 8-3.7 (Approved Draft 1978 & Supp. 1982)).
The Alaska Supreme Court has formulated a slightly different standard for cases involving juror misconduct. The leading Alaska case is Fickes v. Petrolane-Alaska Gas Service, Inc., 628 P.2d 908 (Alaska 1981), in which a juror failed to reveal his acquaintance with an important witness. During deliberations, the juror relied on his acquaintance to vouch for the reliability of the witness.
In deciding Fickes, the supreme court reiterated the two-prong standard it first set forth in West v. State, 409 P.2d 847, 852 (Alaska 1966):
In West v. State, we established the standard for determining whether juror misconduct requires a new trial:
"Whether the verdict should be set aside and a new trial ordered rests in the sound discretion of the trial judge, but generally the verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty and deprives a party of a fair trial." (emphasis added).
In West, we observed that there is a general policy against allowing a juror to impeach the jury's verdict, but that exceptions to this general rule are recognized when the kind of misconduct claimed is "fraud, bribery, forcible coercion or any obstruction of justice."
628 P.2d at 910 (citations omitted).
Considering the first prong of this test, the court found that the juror's failure to *931 disclose his acquaintance with the witness, and his reliance on this acquaintance during deliberations, was "tantamount to an obstruction of justice." Id. Turning to the second prong of the standard whether the misconduct deprived a party of a fair trial the court announced three relevant criteria:
Three considerations provide guidelines for making this determination. First, if the party asserting prejudice had known the true facts, is it probable that it would have challenged the juror? Second, did the improper comment merely go toward a collateral matter, e.g., the general credibility of a witness, or did it go to the essence of a claim or defense? Third, viewed objectively, was the probable effect of the comment prejudicial?
Id. at 911 (citations and footnotes omitted).
The Ciervo and Fickes standards the former governing juror exposure to extraneous prejudicial matter and the latter governing juror misconduct share a common objective: to assure a fair trial by protecting the integrity of jury verdicts. Thus, while the two standards differ in form, they are essentially similar in substance.[1] Both uphold the same fundamental precept: "In order for a defendant to receive a fair trial, the jurors must all be impartial." Ciervo, 756 P.2d at 910 (citing Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975)).
In the present case, Swain and Ellis' challenge to their jury's verdict is susceptible to analysis under both tests. We turn first to the Ciervo test the standard primarily relied upon by the trial court.
In declining to order a new trial, Judge Cutler relied strongly on Ciervo, which was newly decided at the time. Although Judge Cutler scrupulously adhered to Ciervo, we are compelled to find error; the error stems from a basic flaw in our Ciervo decision, rather than from Judge Cutler's application of the case.
As we have previously noted, in Ciervo we followed ABA Standard 8-3.7 as a guide for determining whether a mistrial should be granted due to a juror's exposure to matter outside the trial record. The standard calls for a mistrial whenever "the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure... ." II Standards for Criminal Justice, § 8-3.7.
Applying this standard in Ciervo, we found no substantial likelihood that any juror's vote had been influenced. The record established that only one juror had read and understood the potentially prejudicial newspaper article at issue in that case. As to that juror, we emphasized: "The one juror who remembered reading and understanding the prejudicial portion of the article assured the court that the article did not influence her decision." Ciervo, 756 P.2d at 910 (footnote omitted). This passage from our decision plainly implied that, in determining whether a substantial likelihood of influence exists, the reviewing court may properly consider a juror's testimony concerning the subjective impact that the potentially prejudicial materials actually had.
Understandably relying on Ciervo, Judge Cutler, in the present case, emphasized juror Perry's assurances that the information she received from Schmelzer played no part in her decision on the issue of Swain and Ellis' guilt. Since Judge Cutler found Perry's testimony credible, she concluded that Swain and Ellis had failed to establish any reasonable possibility that Perry's conversation with Schmelzer had been prejudicial.
Unfortunately, Ciervo is mistaken in suggesting the propriety of a subjective standard for determining the influence on a juror of exposure to potentially prejudicial extraneous matter. Although the point was lost on us in Ciervo perhaps because the parties did not raise it or because it *932 would not have been determinative in any event there is a wealth of authority holding that, for purposes of determining the likelihood that a juror's vote has been influenced, a reviewing court must apply an objective test and is precluded from considering evidence concerning the subjective impact of the extraneous matter on any juror.
This point is made clear by the commentary to ABA Standard 8-3.7, which states, in relevant part:
[T]his standard was drafted to avoid conflict with the universally recognized rule against the impeachment of jury verdicts. That rule bars any inquiry into the mental processes of the jurors concerning their deliberations on the question of guilt or innocence. Accordingly, standard 8-3.7 directs the court's inquiry only to the fact of exposure to extrajudicial material. The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. Though this test may seem unduly speculative, it has significant support in the case law, and there appears to be no more precise way to articulate the standard.
II Standards for Criminal Justice commentary to § 8-3.7 at 58.
This commentary finds strong support in the Alaska Rules of Evidence. A.R.E. 606(b) provides, in relevant part:
Upon an inquiry into the validity of a verdict . .. a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon his or any other juror's mind or emotions as influencing him to ascent to or dissent from the verdict ... or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.
The plain language of A.R.E. 606(b) establishes that jurors may be questioned only as to whether extraneous matters were brought to their attention, and not as to what the effect of any such matter may have been. The language of the rule is substantiated by the rule's commentary, which provides, in relevant part:
Generally there has been agreement among common law jurisdictions that the mental operations and the emotional reactions of jurors during the deliberative process should not be the subject of later inquiry. There has been substantial disagreement as to whether a juror should be able to impeach a verdict in which he participated by testifying about other matters. See 8 Wigmore §§ 2352, 2353, 2354. This rule, like the Federal Rule after which it is modeled, limits impeachment of jury verdicts to inquiries about extraneous prejudicial information and outside influences which may have been improperly brought to bear upon any juror.
Commentary to A.R.E. 606(b).
Moreover, in the closely related area of juror misconduct, the Alaska Supreme Court's decision in Fickes expressly adopts an objective standard for determining the potential impact of misconduct on a jury's verdict. In articulating its three-factor test for determining when misconduct deprives a party of a fair trial, the court in Fickes described the third factor as follows: "Third, viewed objectively, was the probable effect of the comment prejudicial?" Fickes, 628 P.2d at 911 (footnotes omitted). In connection with this consideration, the court went on to note: "The trial court was correct in its view that it cannot inquire into the actual, that is, subjective, impact of [a juror's] statement upon particular jurors." Id. at 911 n. 2 (citations omitted).
Many other jurisdictions have expressly recognized that an objective test is applicable in cases like the present case. They explain that a reviewing court "must determine whether such extraneous information was prejudicial by determining how it *933 would effect [sic] an objective `typical juror.'" Urseth v. City of Dayton, 680 F. Supp. 1084, 1089 (S.D. Ohio 1987) (citing Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984); United States v. Bassler, 651 F.2d 600, 603 (8th Cir.1981); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir.1968); 3 Weinstein & Berger, Weinstein's Evidence ¶ 606[5] (1985 & May, 1987 cum. supp.)). See also United States v. Hornung, 848 F.2d 1040, 1045 (10th Cir.1988); United States v. Bruscino, 687 F.2d 938, 940-41 (7th Cir.1982) (en banc); United States v. Gerardi, 586 F.2d 896, 898 (1st Cir.1978); Wiser v. People, 732 P.2d 1139, 1141-42 (Colo. 1987) (citing, inter alia, United States v. Vasquez, 597 F.2d 192 (9th Cir.1979); United States v. Howard, 506 F.2d 865 (5th Cir.1975); Louisell and Mueller, Federal Evidence, § 291, at 55 (1986 Supp.)).
The function of the "objective" formula is succinctly explained in United States v. Allen, 736 F. Supp. 914, 918 (N.D.Ill. 1990): "The determination is objective precisely because the trial judge cannot rely upon any testimony of the jurors as to their subjective assessment of the actual impact of the extraneous evidence or influence on their deliberations." In other words, inquiry to determine whether extraneous contact affected the juror is "limited to identification of those extraneous sources of information once the existence of external influences has been established, neither the Court nor counsel may inquire into the subjective effect of these external influences upon particular jurors." Urseth, 680 F. Supp. at 1089 (citing Owen, 727 F.2d at 646; Bassler, 651 F.2d at 603; Miller, 403 F.2d at 83 n. 11; 3 Weinstein & Berger, Weinstein's Evidence ¶ 606[5] (1985 & May, 1987 cum. supp.)).
In short, we are convinced that our decision in Ciervo is misleading and must be disavowed to the extent that it suggests that courts may properly consider evidence of the actual, subjective impact of extraneous prejudicial matter on a juror's deliberations. The court erred in so doing.[2]
In the present case, the trial court's decision to deny Swain and Ellis' motion for a mistrial turned precisely on this aspect of Ciervo. As a basis for concluding that no reasonable possibility of juror influence had been established, Judge Cutler placed strong reliance on juror Perry's assurances that her vote had not actually been swayed by her conversation with Schmelzer.
In some situations, mistaken reliance on a juror's subjective statements might well be inconsequential. For example, in the present case, Judge Cutler's emphasis on juror Perry's assurances would at worst have amounted to harmless error if it were nevertheless objectively clear that no substantial likelihood of juror influence existed that is, if it were apparent that no reasonable juror would have been influenced by the information Perry gained from Schmelzer.
No such objective clarity emerges from the record in this case, however, because it is not certain what Schmelzer told Perry. Apparently because Judge Cutler relied on Perry's subjective assurances to negate the likelihood of any improper influence, the judge did not definitively resolve the primary factual dispute emerging from Schmelzer's and Perry's testimony. *934 Schmelzer unequivocally claimed to have told Perry not only that she had been robbed by Tina Ellis, but further that Mark Ellis had also been a participant in the crime. Perry, in contrast, was more equivocal. She acknowledged being told that Tina had robbed Schmelzer; she further acknowledged that Mark Ellis' name had been mentioned during the mid-trial conversation with Schmelzer. Perry claimed, however, that she did not recall Schmelzer ever specifically saying that Mark Ellis had actually participated with Tina Ellis in the robbery.
The question of whether Schmelzer told Perry of Mark Ellis' involvement in the Schmelzer robbery is, in our view, of crucial significance. During the course of trial, Swain and Ellis' jury was apprised that Tina Ellis had been implicated in a burglary and robbery at the Schmelzer residence and that, in committing the offense, Tina had held Carla Schmelzer at gunpoint. Accordingly, if Schmelzer told Perry only of Tina Ellis' involvement, without describing Mark Ellis' role, Perry would have learned little that was not independently revealed at trial. There would be little objective basis for finding a substantial likelihood that Perry's vote "was influenced by exposure to prejudicial matter that was not part of the trial record on which the case was submitted to the jury." II Standards for Criminal Justice § 8-3.7.
On the other hand, if Schmelzer did expressly disclose Mark Ellis' role in the Schmelzer robbery, Perry would have been privy to significant information that was not presented at trial. Disclosure of Ellis' role in the Schmelzer robbery was specifically precluded by a protective order. Given the similarities between the Schmelzer robbery and the robbery for which Swain and Ellis were on trial, disclosure of Ellis' participation in the Schmelzer case would have strongly suggested his propensity to engage in conduct similar to that with which he was charged. From an objective point of view, it is difficult to imagine that exposure to this type of information would have no influence on a typical juror's vote, particularly when the information comes from an acquaintance of the juror who claims to have been a victim of the defendant's misconduct.[3]
Moreover, one of the primary lines of defense at trial was that Tina Ellis had fabricated the entire story concerning the burglary and robbery at the Keck residence a defense rendered at least facially plausible by Schreiber's failure to report the crime. Disclosure that both Tina and Mark Ellis had subsequently committed a similar robbery together would have rendered it far more difficult to accept this line of defense as plausible.
Finally, disclosure of Mark Ellis' participation with Tina in the Schmelzer robbery would immeasurably have enhanced the possibility of prejudice to Swain. Faced with information that both Mark and Tina Ellis had participated in another similar robbery with an unnamed third person, a typical juror might well be tempted to draw the inference that Swain was that third person. This, in turn, would enhance the likelihood that the determination of both Swain and Ellis' guilt might be colored by a perception that they had a propensity for teaming up with Tina Ellis to commit precisely the type of misconduct for which they were charged.
Applying ABA Standard 8-3.7 objectively, we believe that denial of a motion for mistrial in this case would be an abuse of discretion if, as a factual matter, the trial court found that Schmelzer told Perry of Mark Ellis' role in the Schmelzer robbery.
We reach the same conclusion when we apply the alternative Fickes standard governing juror misconduct. The first *935 prong of the Fickes test requires proof of a serious violation of a juror's duty misconduct akin to fraud, bribery, coercion, or obstruction of justice. Fickes, 628 P.2d at 910. The requirement appears to be satisfied here. Just as a juror's failure to reveal his acquaintance with a witness was found to be tantamount to an obstruction of justice in Fickes, so too was it an obstruction of justice for Perry not to disclose her friendship with Schmelzer or the fact that she had talked to Schmelzer about the Schmelzer robbery. That Perry's reticence may have been inadvertent or well-intentioned does not alter the situation. In Fickes, the supreme court was disposed to find conduct amounting to an obstruction of justice regardless of whether the juror acted intentionally or inadvertently. Id. Here, as in Fickes, regardless of Perry's motivation, her failure to disclose was unfair to the parties in that it deprived them of the opportunity to challenge Perry or to question her further on the issue of actual bias. See id. at 911.
Whether juror Perry's failure to disclose her conversation with Schmelzer deprived Swain and Ellis of a fair trial the second prong of the Fickes standard requires consideration of the three factors enumerated in that case. In our view, the outcome of this process depends on how much Schmelzer told Perry.
The first Fickes factor is whether Swain and Ellis would probably have challenged Perry had they been apprised of her conversation with Schmelzer. Id. While the issue might be debatable if Schmelzer and Perry had spoken only of Tina Ellis' participation in the Schmelzer robbery, it seems apparent that a challenge would almost certainly have been exercised if Schmelzer had also told Perry of Mark Ellis' involvement.
Factor two concerns the importance of the information related by Schmelzer to Perry that is, did the information merely involve collateral issues or did it go to the essence of the case? Id. The general topic of the Schmelzer/Perry conversation falls somewhere between the two extremes of being collateral and essential. Precisely where it falls, however, depends on exactly what was communicated. Disclosure that Perry had learned of Mark Ellis' participation in the Schmelzer robbery would have been far less collateral than mere disclosure of her knowledge of Tina's role in the crime.
The final Fickes factor is the probable effect, in objective terms, of the Schmelzer/Perry conversation. Id. Consideration of this factor leads to the same conclusion that we reached in applying the Ciervo standard. If Perry was specifically told by Schmelzer of Mark Ellis' role, it would, in our view, be difficult to objectively conclude that the information would not have tended to be prejudicial.
In summary, applying both the Ciervo and Fickes approaches to the circumstances in this case, we conclude that the need for a mistrial turns on how much Schmelzer told Perry. Because this issue requires resolution of disputed facts that were not definitively addressed below, we find it necessary to remand the case to the superior court for further findings. We hold that, on remand, a mistrial should be declared unless the superior court determines that Perry was not told of Mark Ellis participation in the Schmelzer robbery.[4]
*936 This case is REMANDED for further proceedings in conformity herewith.
MANNHEIMER, J., not participating.
NOTES
[*] Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.
[1] Indeed, clear distinctions have not always been drawn between claims of juror misconduct and claims of exposure to potentially prejudicial extrajudicial materials. For example, in Watson v. State, 413 P.2d 22, 24 (Alaska 1966), the supreme court, in considering a case involving exposure of jurors to prejudicial newspaper articles, relied on the standard for juror misconduct that it had previously formulated in West v. State, 409 P.2d 847, 852 (Alaska 1966). The court apparently assumed that both categories of cases were amenable to the same standard.
[2] We emphasize that A.R.E. 606(b) expressly permits the use of juror testimony to determine whether and to what extent "extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Thus, in the current case, Judge Cutler acted properly in considering Perry's testimony insofar as Perry indicated that she did not mention her conversation with Schmelzer to any other juror. Similarly, Judge Cutler properly considered the affidavits of other jurors confirming that Perry never mentioned the Schmelzer conversation. Judge Cutler did not err in relying on this evidence as a basis for the objective conclusion that the effect of the Schmelzer/Perry conversation was necessarily limited to Perry and had no influence on any other juror. This determination, however, is not dispositive on the issue of whether a mistrial was called for in the present case, since, as we recognized in Ciervo, "In order for a defendant to receive a fair trial, the jurors must all be impartial." 756 P.2d at 910. The relevant issue here is whether, in objective terms, a substantial likelihood exists that Perry's conversation with Schmelzer influenced Perry's vote.
[3] We note that other courts have found reversible error stemming from exposure of jurors to information relating to a defendant's participation in prior similar misconduct. See, e.g., Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988). The Alaska Supreme Court has found harmless error when jurors were improperly allowed to hear evidence of other misconduct by the defendant that was dissimilar to the misconduct charged and not otherwise inherently prejudicial. See, e.g., Fields v. State, 629 P.2d 46 (Alaska 1981). Here, however, the similarities between the Schmelzer and Keck robberies clearly make Fields distinguishable.
[4] Our decision to remand makes it unnecessary at this time to resolve Swain's claim that the trial court erred in restricting his cross-examination of Tina Ellis. Swain raises one additional issue, however, that requires our consideration. He argues that the trial court erred in denying his motion for judgment of acquittal. The motion was based on AS 12.45.020, which requires that the testimony of an accomplice be "corroborated by other evidence that tends to connect the defendant with the commission of the crime... ." Swain argues that the testimony of Tina Ellis, an accomplice, was uncorroborated as to his own participation.
We are inclined to agree with Swain that the evidence discussed by the parties in their briefs would not, standing alone, be sufficient to corroborate Tina Ellis' testimony implicating Swain. The parties' briefs, however, have overlooked at least two areas in which evidence corroborates Tina Ellis' testimony. First, the state presented telephone records establishing a series of telephone calls between Ellis' residence in Anchorage and Swain's in Eagle River on the date of the alleged offense. The timing of the calls coincided with that of the robbery. Second, Ellis' father, who testified for the defense and attempted to establish an alibi, indicated that Swain, Tina Ellis, and Mark Ellis had all been together at his home in Anchorage on the night of the offense. Although this evidence was presented as part of the defense case, it may properly be considered in determining the sufficiency of the evidence at trial. Martin v. Fairbanks, 456 P.2d 462 (Alaska 1969), overruled on other grounds, Whitton v. State, 479 P.2d 302 (Alaska 1970). Viewing the testimony of Ellis' father in the light most favorable to the state, the jury could well have relied on it as linking Swain to Tina and Mark Ellis on the night of the offense, thus lending credence to Tina Ellis' testimony that Swain was a participant in the crime.
Considering this evidence in conjunction with the other evidence discussed by the parties in their briefs, we conclude that the totality of the evidence in the record would suffice to induce "a rational belief that the accomplice was speaking the truth" in implicating Swain. Brown v. State, 693 P.2d 324, 329 (Alaska App. 1984) (quoting Oxenberg v. State, 362 P.2d 893, 897 (Alaska 1961)). We find no error in the denial of Swain's motion for a judgment of acquittal.
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729 F.Supp.2d 158 (2010)
G. Thomas PORTEOUS, Jr., United States District Judge for the Eastern District of Louisiana, Plaintiff,
v.
Alan I. BARON, Special Counsel, Impeachment Task Force, Committee on the Judiciary, United States House of Representatives, et al., Defendants.
Civil Case No. 09-2131(RJL).
United States District Court, District of Columbia.
August 2, 2010.
*159 Michael A. Hass, Chelsea Selleck Rice, Richard William Westling, Ober, Kaler, Grimes & Shriver, Washington, DC, for Plaintiff.
*160 Ariel B. Waldman, Irvin B. Nathan, U.S. House of Representatives, Washington, DC, for Defendant.
MEMORANDUM OPINION
RICHARD J. LEON, District Judge.
G. Thomas Porteous, Jr. ("Judge Porteous"), a suspended federal district judge, seeks to enjoin three defendantseach of whom serves as counsel to the Impeachment Task Force working on behalf of the Judiciary Committee of the United States House of Representativesfrom using sworn testimony provided by Judge Porteous under a grant of immunity. Judge Porteous claims that the use of that immunized testimony by the defendants to prosecute both his impeachment in the House and his subsequent trial in the Senate violates his Fifth Amendment right against self-incrimination. Not surprisingly, the defendants have moved to dismiss. Although they oppose the merits of Judge Porteous's claim on the ground that his Fifth Amendment rights are not at stake in an impeachment proceeding, they argue nevertheless that the Court cannot reach the merits because, as Congressional aides, they are immune from suit under the Constitution's Speech or Debate Clause.
By bringing this lawsuit, Judge Porteous, in effect, invites a direct confrontation between the Judicial and Legislative Branches of our government. He calls upon our Court to exercise the extraordinary power of barring key Congressional aides from using certain evidence against him in the course of an ongoing Congressional proceeding. Fortunately, the confrontation he seeks is to no avail. Because I agree that the Speech and Debate Clause bars this suit, the defendants' Motion to Dismiss [#7] is GRANTED, and Judge Porteous's Motion for a Preliminary Injunction [# 2] is DENIED.
BACKGROUND
The seeds that gave rise to this lawsuit were sowed almost ten years ago when the Department of Justice launched a criminal investigation of Judge Porteous while he was sitting as a district judge on the United States District Court for the Eastern District of Louisiana. Although the Department concluded that there was "evidence that might warrant charging Judge Porteous with violations of criminal law relating to judicial corruption," it ultimately decided, for a number of reasons, not to seek criminal charges. (Defs.' Opp'n to Mot. for TRO and PI and Mem. in Support of Mot. to Dismiss, Ex. 3 [# 5-2] at 1). Instead, the Department submitted a complaint to the Chief Judge of the United States Court of Appeals for the Fifth Circuit ("the Chief Judge"). In its complaint, the Department alleged that Judge Porteous committed numerous acts of judicial misconduct, such as soliciting and accepting cash and other things of value from litigants, attorneys, bail bondsmen, and other interested parties with matters before him, as well as making false statements on financial disclosure forms and court filings in connection with his personal bankruptcy. (Id. at 3-21). The complaint further explained that, in light of the "evidence of pervasive misconduct committed by Judge Porteous," the Department was referring the matter to the Fifth Circuit "for possible disciplinary proceedings and, if warranted, certification of the allegations to Congress for impeachment." (Id. at 2).
Upon receiving the complaint, the Chief Judge authorized a Special Investigatory Committee ("the Committee") comprised of three judges from the Fifth Circuit to investigate the allegations leveled against Judge Porteous. (Id., Ex. 5 [# 5-3] at 2). With the assistance of its own investigator, *161 the Committee gathered evidence and conducted a two-day adversarial hearing in which a number of witnesses testified. (Id. at 4-5, 12-13). Among the witnesses subpoenaed was Judge Porteous himself. (Id. at 12). Judge Porteous invoked his Fifth Amendment rights and refused to answer any questions put to him regarding these matters, but the Chief Judge compelled him to testify pursuant to a testimonial use Immunity Order. (Id., Ex. 4 [# 5-2]). The Order, which was entered by the Chief Judge in accordance with 18 U.S.C. §§ 6002-6003,[1] specifies that "no testimony or other information that he provides under this order and no information directly or indirectly derived from such testimony or other information shall be used against him in any criminal case." (Id. at 1). Judge Porteous did not contest the validity of the Immunity Order when it was issued, nor does he do so now.
Based on the evidence gleaned from its investigation, the Committee issued a report to the Judicial Council of the Fifth Circuit ("the Judicial Council") finding that Judge Porteous had committed judicial misconduct that might justify impeachment. (Id., Ex. 5 [# 5-3] at 65). After reviewing the report, the Judicial Council adopted the Committee's findings by a majority vote and forwarded the entire record to the Judicial Conference of the United States ("the Judicial Conference"). (Id., Ex. 6 [#5-3] at 4-5). In doing so, the Judicial Council certified its conclusion that Judge Porteous engaged in conduct "which might constitute one or more grounds for impeachment under Article II of the Constitution." (Id.).
The Judicial Conference, in turn, reviewed the report and accompanying materials and determined that "consideration of impeachment of [Judge Porteous] may be warranted." (Id., Ex. 2 [# 5-2] at 2). The entire record of the proceedings in both the Judicial Council and the Judicial Conference, which included Judge Porteous's immunized testimony, was thereafter transmitted to the House for its review. (Id.; Id., Ex. 1 [# 5-2] ¶¶ 9-10). After the House officially opened its impeachment inquiry, the matter was referred to its Judiciary Committee, which appointed a bi-partisan Impeachment Task Force comprised of twelve Committee Members to spearhead the inquiry. (Id., Ex. 1 [# 5-2] ¶¶ 12-15). To assist with the investigation, the House Judiciary Committee hired Alan I. Baron, a highly seasoned counsel from the Seyfarth Shaw LLP law firm, as its special counsel. (Id. ¶ 16). Judiciary Committee staff attorneys, Mark Dubester and Harold Damelin, were also assigned to provide legal support. (Id. ¶ 17).
On November 13, 2009, just four days before the anticipated commencement of hearings by the Impeachment Task Force, Judge Porteous filed a single-count Complaint [# 1], accompanied by a Motion for a Temporary Restraining Order and Preliminary Injunction [# 2], seeking to prevent any further use of his immunized testimony. Rather than naming the Members of Congress on the Impeachment Task Force, Judge Porteous merely named the three counsel who are aiding the Task Force in its investigation: Baron, Dubester, and Damelin (collectively, "the defendants").[2] Judge Porteous's sole claim is *162 that the "direct and indirect use of [his] immunized testimony to pursue his impeachment and removal from office violates [his] right not to be compelled to be a witness against himself under the Fifth Amendment." (Compl. [# 1] ¶ 28). He seeks: (1) a declaratory judgment that the use of the immunized testimony is a violation of his constitutional rights, (2) an injunction barring the defendants from "making any use of the immunized testimony... in connection with its impeachment inquiry," and (3) a hearing "to determine the extent of any prior use of the immunized testimony in order to fashion an appropriate form of injunctive relief." (Id. at 7). The defendants promptly opposed Judge Porteous's motion and filed their own Motion to Dismiss [# 7] on November 13, 2009.
I held a hearing a few days later, at the end of which I denied Judge Porteous's request for a temporary restraining order. Soon thereafter, I invited the defendants to file a supplemental memorandum in support of their Motion to Dismiss. The defendants did so, and the briefing on that motion became ripe in January 2010.
On March 11, 2010, the House of Representatives adopted four Articles of Impeachment against Judge Porteous. (See Notice of Filing of Congressional Record [#14]). In light of that development, I ordered the parties to show cause why Judge Porteous's suit should not be dismissed as moot. (April 5, 2010 Order [# 15]). Although the defendants acknowledged that there was a colorable argument that the case was moot, they did not contend that it should be decided on that basis. For his part, Judge Porteous continues to assert that his claim remains viable given defense counsel's earlier representation to this Court that the defendants "will likely serve as staff for the Managers, all of whom will be Members of the House of Representatives, of the impeachment articles at the upcoming Senate trial." (Porteous's Resp. to Court's Order to Show Cause [# 16] at 2-3 (internal quotation marks omitted)).
However, because I have concluded that I lack jurisdiction by virtue of the Speech or Debate Clause, I need not determine whether the case is moot.[3] Indeed, because there is "no mandatory `sequencing of jurisdictional issues,'" a federal court has considerable "leeway `to choose among threshold grounds for denying audience to a case on the merits.'" Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). Exercising that leeway here, I choose to reserve judgment *163 on the mootness question and to dismiss the case instead for the following reasons.
DISCUSSION
The defendants move to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Under that Rule, "the plaintiff bears the burden of establishing that the court has jurisdiction," Fowler v. District of Columbia, 122 F.Supp.2d 37, 39-40 (D.D.C.2000), and it is well-accepted that the Court may consider evidence outside of the pleadings in deciding whether the plaintiff has met its burden, Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987).
One of the arguments raised in the defendants' Motion to Dismiss is that, as staff aides to Members of Congress, they are immune from suit by virtue of the Speech or Debate Clause for actions taken on behalf of their Members that are legislative in nature.[4] The defendants specifically contended that the acts challenged in this casethat is, their use of Judge Porteous's immunized testimony in conducting his impeachment and removal proceedings in Congressare clearly legislative and thus exempt from judicial review.
Having considered the merits of this argument, I am persuaded that the Speech or Debate Clause does indeed bar judicial review of the defendants' actions in this case. Not wanting, or needing, to say any more than necessary, I will limit my opinion to the reasons that compel that conclusion.
The constitutional provision in Article I widely known as the Speech or Debate Clause provides that "for any Speech or Debate in either House" of Congress, the Senators and Representatives "shall not be questioned in any other place." U.S. Const. art. I, § 6, cl. 1. The effect of this Clause is to give Members of Congress immunity from suit for things that they say or do while "engaged in the sphere of legitimate legislative activity." Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (internal quotation marks omitted). Thus, legislators who might be sued for carrying out their legislative duties are "protected not only from the consequences of litigation's results but also from the burden of defending themselves." Id. at 85, 87 S.Ct. 1425. When it applies, the Clause "provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch." Eastland v. U.S. Servicemen's Fund, 421 *164 U.S. 491, 502-03, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).
Given its historical pedigree, which the Supreme Court has recounted in detail, see, e.g., United States v. Johnson, 383 U.S. 169, 177-79, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), the Speech or Debate Clause "has been recognized as an important protection of the independence and integrity of the legislature," id. at 178, 86 S.Ct. 749. It prevents both the intimidation of legislators "by the executive and accountability before a possibly hostile judiciary." Id. at 181, 86 S.Ct. 749. It also serves the important function of "reinforcing the separation of powers so deliberately established by the Founders." Id. at 178, 86 S.Ct. 749. Indeed, the Supreme Court itself has made clear that the "purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently," Eastland, 421 U.S. at 502, 95 S.Ct. 1813, and thereby to enable and encourage legislators to "`discharge [their] publick trust with firmness and success,'" Powell v. McCormack, 395 U.S. 486, 503, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting 1 The Works of James Wilson 421 (R. McCloskey ed.1967)).
The Supreme Court has "[w]ithout exception ... read the Speech or Debate Clause broadly to effectuate [those] purposes." Eastland, 421 U.S. at 501, 95 S.Ct. 1813 (collecting cases). Thus, in Kilbourn v. Thompson, one of the earliest cases to interpret the Clause, the Supreme Court held that the privilege extends not only to "words spoken in debate," but to anything "generally done in a session of the House by one of its members in relation to the business before it." 103 U.S. 168, 204, 26 L.Ed. 377 (1880). Whether a Member of Congress is entitled to immunity under the Clause hinges therefore on whether the Member is "acting in the sphere of legitimate legislative activity." Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Where actual speech or debate is not involved, however, the activity "must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Applying these principles, the Supreme Court has held, for instance, that conducting an investigation where information is gathered, holding hearings where the information is presented, preparing a report where the information is reproduced, and authorizing the publication and distribution of that report are all acts that fall within the legislative sphere. Doe v. McMillan, 412 U.S. 306, 313, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). Thus, if a court determines that a Member of Congress is acting within that sphere, "the Speech or Debate Clause is an absolute bar to interference." Eastland, 421 U.S. at 503, 95 S.Ct. 1813.
Consistent with this broad application of the Clause, the Supreme Court, quite understandably, has extended its protections beyond Members of Congress to their aides as well. Given the reality and complexity of the modern legislative process, the Supreme Court found that "the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos" and that "if they are not so recognized, the central role of the Speech or Debate Clause ... will inevitably be diminished and frustrated." Gravel, 408 U.S. at 616-17, 92 S.Ct. 2614. For that reason, the Supreme Court held that "the Speech or Debate Clause applies not only to a Member but also to *165 his aides insofar as the conduct of the latter would be protected legislative act if performed by the Member himself." Id. at 618, 92 S.Ct. 2614.
Applying these principles here, I have little difficulty concluding that the defendants' conduct, the constitutionality of which Judge Porteous challenges, is legislative in nature and thus entitled to absolute immunity under the Speech or Debate Clause. The activity that Judge Porteous seeks to enjoin, now that his impeachment proceeding has concluded, is the defendants' direct or indirect use of his immunized testimony at his upcoming Senate impeachment trial. The trial of impeachable offenses is, of course, a matter that the Constitution places within the sole jurisdiction of the Senate, see U.S. Const. art. I, § 3, cl. 6, and the use of relevant testimony at or in preparation for that trial is, without a doubt, "an integral part of the deliberative and communicative processes by which Members participate" in the trial proceedings, see Gravel, 408 U.S. at 625, 92 S.Ct. 2614. After all, without evidence, there can be no trial for the Senators, House Managers, and their staffs to conduct. Therefore, the consideration and use of such testimony by Members of Congress in the course of a Senate impeachment trial falls squarely within its legislative sphere.
Furthermore, because the conduct that Judge Porteous seeks to enjoin is off-limits if carried out by a Member of Congress, then it is also off-limits if carried out by the defendants, who, as counsel to the Judiciary Committee, are Congressional aides for purposes of Speech or Debate Clause immunity. Indeed, if the challenged conduct is truly outside the realm of legitimate legislative activity, as Judge Porteous contends, then there would be no reason whatsoever to name only the Congressional aides as defendants. Judge Porteous could have named the Impeachment Task Force or the Judiciary Committee as well. That he did not bespeaks the weakness of his case.
Against this tide of unfavorable case law, the only colorable argument that Judge Porteous has mustered is that the defendants' use of his immunized testimony during his impeachment and removal proceedings is not a "legitimate" legislative activity because it violates his Fifth Amendment right against self-incrimination. I disagree. Slander, of course, is no more "legitimate"in the sense that Judge Porteous uses the termthan improperly using immunized testimony, yet the Speech or Debate Clause undoubtedly protects legislators from suit for making slanderous remarks in floor or committee debates. See Hutchinson v. Proxmire, 443 U.S. 111, 130, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (noting that a "speech by [Senator] Proxmire in the Senate would be wholly immune" from a suit for defamation). By equating "legitimate" with "lawful," Judge Porteous's position, were it accepted by this Court, would entirely eviscerate the protections afforded by the privilege, and in so doing, it would undermine one of the core purposes of the Speech or Debate Clause, which is "to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions." Powell, 395 U.S. at 505, 89 S.Ct. 1944. It makes little sense in light of that purpose to predicate a legislator's entitlement to legislative immunity on a finding that the legislator did not act unlawfully. Indeed, it would defeat the entire point of the Clause to subject a legislator to the burdens of discovery and a potential trial for the purpose of determining whether the legislator acted lawfully and thus, in Judge Porteous's view, "legitimately," even when the nature of the legislator's conduct is *166 well within the normal bounds of legislative activity.
In sum, the proper focus of this Court's inquiry under the Speech or Debate Clause is not, as Judge Porteous would have it, on what the defendants did in particular and whether it was unlawful. The focus is on the nature of the defendants' conduct more generally. So long as the type of conduct he seeks to enjoin falls legitimately within the scope of legislative activity, it matters not whether the specific conduct is unlawful.[5] As the Supreme Court teaches, "[c]ongressmen and their aides are immune from liability for their actions within the `legislative sphere,' even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." Doe, 412 U.S. at 312-13, 93 S.Ct. 2018 (internal citation omitted) (emphasis added). Therefore, because the use of testimony to prepare for and conduct Congressional impeachment and removal proceedings is conduct of the type that clearly falls within the legislative sphere, the Speech or Debate Clause prevents this Court from questioning, let alone enjoining, the defendants about their use of Judge Porteous's immunized testimony, whether or not such use actually runs afoul of the Fifth Amendment.
CONCLUSION
The Speech or Debate Clause protects the independence and autonomy of the Legislative Branch from judicial intrusion. In that sense, the Clause is critical to ensuring the Constitution's division of powers. Judicial restraint and comity dictate that this Court refrain from any interference with the ongoing proceedings in the Senate. Indeed, our Circuit Court admonished members of the District Court in a similar case to be "at least as hesitant to interrupt [impeachment trial] proceedings in progress as [they] would be to interrupt proceedings underway in a state or coordinate federal court." Hastings v. U.S. Senate, 887 F.2d 332, 1989 WL 122685, at *1 (D.C.Cir. Oct. 18, 1989) ("Hastings I") (unpublished). After all, it is not as if Judge Porteous has no forum in which to voice his constitutional objection to the use of his immunized testimony. He may do so in the Senate, which, as the impeachment court, may well grant the relief he seeks. His attempt here to circumvent the Senate altogether by bringing his constitutional challenge in this tribunal before the Senate has even reached a final decision is not only premature, but an affront to our constitutional order. Given the immunity afforded to the defendants *167 by the Speech or Debate Clause, together with the already strong constitutional interests counseling against judicial interference with ongoing impeachment trial proceedings in the Senate, there is no sound basis for this Court to exercise its jurisdiction at this juncture. Accordingly, the defendants' Motion to Dismiss [# 7] is GRANTED, and Judge Porteous's Motion for a Preliminary Injunction [# 2] is DENIED. An Order consistent with this Memorandum Opinion is attached.
ORDER
For the reasons set forth in the Memorandum Opinion entered this 2nd day of August, 2010, it is hereby
ORDERED that the Defendants' Motion to Dismiss [# 7] is GRANTED; it is further
ORDERED that Plaintiff G. Thomas Porteous, Jr.'s Motion for a Temporary Restraining Order and Preliminary Injunction [# 2] is DENIED; and it is further
ORDERED that the case is DISMISSED for lack of subject matter jurisdiction.
SO ORDERED.
NOTES
[1] Section 6002 forbids an immunized witness from refusing "to comply with [an immunity] order on the basis of his privilege against self-incrimination" but provides that "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case." 18 U.S.C. § 6002. defendants in this case is to prevent Members of Congress from relying on his testimony, that doubt was dispelled by Judge Porteous's counsel who, when asked by this Court whether his client was seeking an order to prohibit Congress's use of the testimony either directly or indirectly, answered in the affirmative.
[2] Lest there be any doubt that Judge Porteous's ultimate objective by suing the three
[3] Although it is well-established that "[m]ootness is a jurisdictional question," North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), the Supreme Court has never directly addressed whether the Speech or Debate Clause is jurisdictional. Nevertheless, our Circuit Court has observed that the "Speech or Debate Clause operates as a jurisdictional bar when the actions upon which a plaintiff sought to predicate liability were `legislative acts.'" Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13 (D.C.Cir.2006); see also Vander Jagt v. O'Neill, 524 F.Supp. 519, 521 (D.D.C.1981) (concluding that "the plaintiffs have not overcome the defendants' challenge to this Court's jurisdiction by virtue of both the Speech and Debate Clause and the corollary Separation of Powers doctrine").
[4] The defendants raised two other threshold arguments that I need not address. First, they contended that the real defendant in interest is the House of Representatives which is entitled to absolute sovereign immunitybecause the obvious purpose of Judge Porteous's suit is to deprive the Judiciary Committee, in particular, and the House of Representatives, in general, from obtaining and using his immunized testimony for purposes of the impeachment inquiry and subsequent Senate trial. Second, the defendants contended that Judge Porteous's claim is not justiciable in at least two respects. They asserted first that the claim is not yet ripe because Judge Porteous has not been removed from office. Thus, any alleged harm to Judge Porteous at this point is merely speculative and does not rise to an actual case or controversy. They also asserted that Judge Porteous's claim raises a nonjusticiable political question in that it challenges the use of his immunized testimony as evidence against him in the course of his impeachment and removal proceedings. The defendants argue that procedural matters pertaining to the conduct of impeachment proceedings in the House and impeachment trials in the Senate are textually committed by the Constitution to the sole discretion of those respective houses of Congress and are not within the province of the courts.
[5] Compare Eastland, 421 U.S. at 492-511, 95 S.Ct. 1813 (holding that the issuance of a committee subpoena was a legitimate legislative activity entitled to immunity under the Speech or Debate Clause, notwithstanding the plaintiffs' allegation that the subpoena violated their First Amendment rights); Doe, 412 U.S. at 309-18, 93 S.Ct. 2018 (holding that the plaintiffs' constitutional and common-law privacy claims were barred by the Speech or Debate Clause insofar as they sought relief from legislators and their staff for, among other things, introducing confidential material at committee hearings); with Powell, 395 U.S. at 494, 501-06, 89 S.Ct. 1944 (refusing to extend Speech or Debate Clause protection to the Clerk of the House for refusing to perform the duties due to a Representative, to the Sergeant at Arms for refusing to pay the plaintiff his salary, and to the Doorkeeper for refusing to admit the plaintiff into the House chamber, all of which are conduct that does not constitute legislative action); Dombrowski, 387 U.S. at 84-85, 87 S.Ct. 1425 (holding that legislative immunity did not extend to committee counsel who was charged with conspiring with state officials to carry out an illegal seizure of records); Kilbourn, 103 U.S. at 200-05, 26 L.Ed. 377 (holding that the person who carried out an illegal arrest was not entitled to legislative immunity even though the legislators who authorized the arrest were).
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487 F.3d 304
UNITED STATES of America, Plaintiff-Appellant,v.Phillip BRUNO; Christopher Jerome Caldwell, Defendants-Appellees.
No. 05-41763.
United States Court of Appeals, Fifth Circuit.
May 18, 2007.
Peter Rodney Mason (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, Michelle Palacios, McAllen, TX, for U.S.
Ali Fazel (argued), Scardino & Fazel, Houston, TX, for Bruno.
Richard Edward Banks (argued), Lockhart, TX, for Caldwell.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
1
The district court granted Phillip Bruno and Christopher Caldwell's joint motion to suppress evidence found pursuant to a search that the court found to have violated the knock-and-announce rule. After this ruling, the Supreme Court held in Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 2165, 165 L.Ed.2d 56 (2006), that the exclusionary rule is inapplicable to Fourth Amendment knock-and-announce violations. We consider whether, in light of Hudson, suppression is the remedy for a violation of 18 U.S.C. § 3109's knock-and-announce requirement. Holding it is not, we reverse and remand.
I.
2
Drug Enforcement Agency ("DEA") agents and members of the League City SWAT Team arrived at Caldwell's residence early one morning to execute a search warrant. One of the SWAT team members knocked loudly on Caldwell's front door and announced, "Police, search warrant." About ten seconds after this announcement, two officers at the master bedroom performed a "rake-and-break" maneuver: One broke the window and cleaned it out, and the other pointed a long gun with a light on it through the window and instructed, "Police. Don't move. Search warrant. Put your hands where I can see them." Caldwell was in bed with his wife and appeared to have been awakened recently.
3
Approximately 15 to 20 seconds after officers broke the bedroom window, the front-door team tossed a concussion grenade toward the garage as a distraction in case other adults were present, and then broke through the front door. Bruno tried to flee from the garage, but DEA agents caught and arrested him.
4
Officers recovered a small, loaded handgun from above the headboard on the side of the bed where Caldwell was sleeping, and a loaded shotgun from the master bedroom shower stall. A later search uncovered narcotics and seven other weapons.
5
Caldwell and Bruno were charged in an eleven-count indictment with various narcotics- and firearms-related offenses under 18 U.S.C. §§ 2, 922, and 924 and 21 U.S.C. §§ 841 and 846. They filed a motion to suppress the evidence, claiming that federal officers did not knock and announce their identity and purpose when executing the search warrant, in violation of the Fourth Amendment and 18 U.S.C. § 3109. The district court granted the motion, and the government appeals.
II.
6
When considering the grant or denial of a motion to suppress evidence, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003); United States v. Jordan, 232 F.3d 447, 448 (5th Cir.2000). The common law principle "that law enforcement officers must announce their presence and provide residents an opportunity to open the door" has been part of federal statutory law since 1917 and is codified at 18 U.S.C. § 3109.1 Hudson, 126 S.Ct. at 2162. In Hudson, the Court held that suppression is not the appropriate remedy for a violation of the constitutional knock-and-announce requirement, but the Court did not address whether suppression is the correct remedy for violations of § 3109. Id. at 2165.
7
Hudson's reasoning, however, entails this result. The District of Columbia Circuit has explained persuasively why:
8
[E]ach of the reasons Hudson gave for not applying the exclusionary rule to knock-and-announce violations of the Fourth Amendment applies equally to violations of § 3109. Among those reasons are that the knock-and-announce requirement does not protect an individual's interest in shielding "potential evidence from the government's eyes," Hudson, 126 S.Ct. at 2165; that "imposing th[e] massive remedy" of suppression "for a knock-and-announce violation would generate a constant flood of alleged failures to observe the rule," id. at 2165-66; that questions about whether the police waited long enough before entering would be "difficult for the trial court to determine and even more difficult for an appellate court to review," id. at 2166; that any deterrent value from suppressing evidence in these cases would not be "worth a lot," id.; that civil damage actions would still provide some deterrence, id. at 2166-68; and that "[a]nother development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline," id. at 2168.
9
United States v. Southerland, 466 F.3d 1083, 1084 (D.C.Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1361, 167 L.Ed.2d 137 (2007).
10
The Ninth Circuit has also held, in an unpublished opinion, that "[s]uppression of evidence is not an available remedy for violations of the `knock and announce' rule under 18 U.S.C. § 3109." United States v. Ramirez, 196 Fed.Appx. 538, 539 (9th Cir. 2006) (citing Hudson, 126 S.Ct. at 2166). The First Circuit has also confronted "whether Hudson should be extended to a knock and announce violation committed in the course of executing an arrest warrant" and has concluded "that the Hudson Court's reasoning mandates such an extension." United States v. Pelletier, 469 F.3d 194, 196 (1st Cir.2006).
11
Caldwell and Bruno contend that two decisions that Hudson did not explicitly overrule continue to require suppression for a violation of § 3109: Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). The defendants point us to the Court's instruction that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).
12
Miller and Sabbath are not direct precedents, so they do not preclude us from concluding that suppression is not the proper remedy for a § 3109 violation. In neither did the Court analyze the precise question Hudson squarely addressed: the remedy for a knock-and-announce violation. Rather, both focused on whether a knock-and-announce violation had occurred. In Sabbath, 391 U.S. at 589, 88 S.Ct. 1755, the Court discussed whether the phrase "break open" as used in § 3109 requires the use of force. In Miller, 357 U.S. at 305, 78 S.Ct. 1190, the parties apparently conceded the evidence's inadmissibility if the officers had unlawfully failed to announce their authority and purpose (noting the petitioner's three contentions on appeal and stating, "If any one of these contentions prevails, it is agreed that the marked money was inadmissible in evidence.").
13
In summary, Hudson compels the conclusion that suppression is not the remedy for a violation of § 3109, and Miller and Sabbath do not prevent it. Even if the conduct in this case violated that statute,2 suppression is not available as a remedy for Caldwell and Bruno.
14
The suppression order is REVERSED, and this matter is REMANDED for further appropriate proceedings.
Notes:
1
Title 18 U.S.C. § 3109, "Breaking doors or windows for entry or exit," states the following:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
2
Because of our conclusion about the remedy of suppression, we do not reach whether a § 3109 violation occurred in this case
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426 So.2d 983 (1983)
Ronnie FRALEY, Appellant,
v.
The STATE of Florida, Appellee.
Nos. 81-2510, 81-2521.
District Court of Appeal of Florida, Third District.
January 4, 1983.
Rehearing Denied February 28, 1983.
*984 Bennett H. Brummer, Public Defender and Daniel H. Forman, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and FERGUSON, JJ.
FERGUSON, Judge.
Appellant raises two issues by this appeal: (1) the court erred in not suppressing a suggestive in-court identification, (2) the court vindictively sentenced him because he exercised his constitutional right to a trial by jury. We dispose of the first issue briefly. Considering all the circumstances, the alleged suggestive procedure did not give rise to a substantial likelihood of irreparable misidentification. Grant v. State, 390 So.2d 341 (Fla. 1980).
We now address the second issue. The trial court offered appellant a sentence of six years in exchange for a plea of guilty to charges of armed robbery and probation violation. He refused the offer. After trial by jury, appellant was convicted and the court imposed a twenty-five year sentence. Appellant points to the persistence of the court in the plea offer which was refused, and the severe sentence imposed after conviction, as evidence of judicial vindictiveness.
Appellant contends that the court became thoroughly familiar with the facts of the case during hearings on a motion for bond, and a combined probation violation and suppression hearing, thus, the more severe sentence could not have been based on any new facts. No presentence investigation was conducted.
Our attention is directed to specific colloquies in the record:
[October 2]
[Defense counsel]: I have also explained the circumstances and the law to Mr. Fraley. I believe he understands it and he has decided not to accept either the State's offer or the Court's offer.
Court: The court's offer will be revoked at this time.
[Prosecutor]: State's also.
[October 28]
Court: I made an offer. The outstanding plea offer is rejected so we are in a trial posture.
[November 2, at commencement of the trial]
Court: Mr. Fraley, so we are on the record, you understand that the Court conveyed an offer to you of six years in the State pen on all cases and you are turning that down?
Defendant: Yes.
Court: Okay ... No more plea offers.
[November 5, after all the evidence had been presented to the jury]
Court: Offer is still open to Mr. Fraley, too.
*985 Court: Mr. Forman, let me say, in order to sweeten the pot, as far as your client is concerned, I will let him plead no contest to the armed robbery charge, let him appeal the probation violation of five years, with the understanding that if I would be reversed on the Probation Violation Hearing, I would vacate the sentence on the armed robbery no contest, we can start anew... If I am affirmed on the Probation Hearing it sticks, six years on the armed robbery charge... Talk to your client.
Court: I will give both defendants until 10:00 tomorrow to consider it.
[November 6, before the jury began deliberations]
Court: I want to know one thing. Are they taking the plea offer, yes or no?
Defendant: No.
The law is clear that any judicially imposed penalty which needlessly discourages assertion of the fifth amendment right not to plead guilty and deters the exercise of the sixth amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (a statute, violation of which is punishable by death on a jury's recommendation, but which assures no execution if the accused enters a guilty plea, is invalid because it encourages guilty pleas); Thomas v. United States, 368 F.2d 941 (5th Cir.1966) (imposition of harsher punishment as a result of defendant's refusal to waive his fifth amendment rights held improper); R.A.B. v. State, 399 So.2d 16 (Fla. 3d DCA 1981) (decision to adjudicate juvenile delinquent based upon his assertion of fifth amendment right to remain silent and right to plead not guilty was improper); McEachern v. State, 388 So.2d 244 (Fla. 5th DCA 1980) (court could not impose a more severe sentence because of the costs and difficulty involved in proving the State's case); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979) (defendant's choice of plea should not have played any part in the determination of his sentence); Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979) (defendant's failure to confess to crime is an improper consideration in imposing sentence). Compare United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (sentencing court can properly give consideration to defendant's false testimony observed by the judge during trial).
The cases relied upon by the state, Smith v. Wainwright, 664 F.2d 1194 (11th Cir.1981) and Blackmon v. Wainwright, 608 F.2d 183 (5th Cir.1979), holding that a defendant may not complain simply because he received a heavier sentence after trial than he would have under the plea bargain, are not controlling. In neither case had the court offered the sentence in exchange for the plea. Moreover, in Smith, the court delayed sentencing for several months while awaiting and pondering a presentence investigation report which was considered in imposing sentence. See also Cole v. Wainwright, 614 F.2d 67 (5th Cir.1980) (trial court was not aware of government's plea offer).
Most assuredly, under the laws of this state a trial judge has considerable discretion as to what sentence to impose and where the sentence is within statutory minimums or maximums appellate review will be limited to determining whether the process used by the judge in arriving at a sentence was fair, particularly whether the factors taken into consideration were relevant and reliable. See Smith v. Wainwright, 664 F.2d 1194 (11th Cir.1981); Scott v. United States, 419 F.2d 264 (D.C. Cir.1969).
But we simply cannot determine from this record what factors the court took into account in imposing a sentence four times more severe than that which had been offered, which offer was renewed even after the conclusion of all the evidence. When a trial judge imposes a sentence upon a defendant after trial, which is more severe than the plea offer made by the court after it has heard all the evidence, the reasons for the more severe sentence must affirmatively appear in the record so as to assure the absence of vindictiveness. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because *986 of the total absence of reasons for the more severe sentence we find the sentence presumptively unlawful.[1]
The judgment of conviction is AFFIRMED, and the cause is remanded to the trial court with instructions to resentence the defendant in accordance with the plea offer or to make record findings supportive of the more severe sentence.
NOTES
[1] In fairness to the trial judge, it should be noted that the practice described herein participation by the court in the plea bargaining process is commonplace in the state courts of this district. There is no state counterpart to Rule 11 of the Federal Rules of Criminal Procedure which forbids a judge from participating in plea bargaining, Fed.R.Crim.P. 11(e)(1), though the practice is frowned upon elsewhere. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 3.3 (1967). The Standards recognize a number of reasons why a trial judge should stay out of plea discussions, all of which raise questions of fundamental fairness: (1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge, (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered, (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report, (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent. Commentary to Standards, Section 3.3(a).
We do not question the validity of the sentence in this case merely because of the disparity between the plea offer and the sentence after trial. The Supreme Court of the United States has held that it is constitutionally permissible for the state to extend a benefit to a defendant who in turn extends a substantial benefit to the state and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary. Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1969). We emphasize that this case is singled out because of three unusual circumstances, (1) the offer was renewed by the court at the conclusion of the evidence after the labors of trial were substantially completed, (2) no presentence investigation was conducted, nor is there evidence of any other appropriate factors the court might have considered, (3) the sentence finally imposed is, by comparison with the last plea offer, strikingly harsh.
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788 N.W.2d 383 (2010)
2010 WI App 100
STATE
v.
TOWNSEND[1].
No. 2008AP2031.
Court of Appeals of Wisconsin.
June 8, 2010.
Unpublished Opinion Affirmed.
NOTES
[1] Petition for Review Filed.
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689 S.W.2d 466 (1985)
Michael J. PUMPHREY, Appellant,
v.
The STATE of Texas, Appellee.
No. 905-84.
Court of Criminal Appeals of Texas, En Banc.
May 15, 1985.
Hugh O'Fiel, Beaumont, for appellant.
James S. McGrath, Dist. Atty., R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
ORDER
PER CURIAM.
The Beaumont Court of Appeals, in a published opinion, affirmed the conviction of Michael J. Pumphrey, appellant, for committing the offense of sexual abuse. Punishment, enhanced, was assessed at thirty-three (33) years' confinement in the Texas Department of Corrections and a $2,500 fine. See Pumphrey v. State, 691 S.W.2d 5 (Tex.App.Beaumont 1984).
Thereafter, counsel for Pumphrey filed with the Clerk of the Beaumont Court of Appeals what purported to be an appellant's petition for discretionary review. This Court eventually received that document. We carefully examined the document in order to make the determination whether it was prepared in conformity with Tex.Cr.App.R. 304(d), which rule states what an appellant's petition for discretionary review should contain. This Court's members unanimously agreed that the document was not prepared in conformity with *467 the rule. On April 10, 1985, this Court entered the following Order:
It is therefore Ordered by this Court that within fifteen (15) days of the date of this Order, counsel for appellant shall file with the Clerk of this Court one (1) original of a petition for discretionary review, which is to be prepared in conformity with Tex.Cr.App.R. 304 (d), and nine (9) legible copies of the original. Counsel shall serve, by certified mail, return receipt requested, one (1) copy of the petition for discretionary review on the attorney of record for the appellee and one (1) copy of the petition for discretionary review on the State Prosecuting Attorney. Failure of counsel to comply with this Order will cause this Court to summarily refuse the document that has been filed on behalf of appellant.
On April 17, 1985, this Court received a second document from appellant's counsel. We have carefully examined it in order to make the determination whether it was prepared in conformity with both the above rule and this Court's Order dated April 10, 1985.
We find and hold that the second document that appellant's counsel has filed with this Court does not comply with either Tex.Cr.App.R. 304(d) or this Court's Order of April 10, 1985.
Therefore, pursuant to our Order dated April 10, 1985, this Court will treat the second document as "appellant's petition for discretionary review" and will Order that it be summarily refused for failure to comply with both Tex.Cr.App.R. 304(d) and this Court's Order of April 10, 1985.
IT IS SO ORDERED.
MILLER, J., does not join in this order.
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494 F.2d 327
Stanley David PETERS, Petitioner-Appellant,v.Raymond L. GRAY, Respondent-Appellee.
No. 73-1720.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 1974.Decided March 29, 1974.
James R. Glover, Madison, Wis., for petitioner-appellant.
Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
PER CURIAM.
1
This is an appeal from a decision of the United States District Court for the Western District of Wisconsin which denied appellant's petition for a writ of habeas corpus. The facts are stipulated. Judge Doyle's summary of them is as follows:
2
Petitioner and a companion were arrested and charged with burglary and theft in January, 1970. At their initial appearance in County Court for Columbia County, wisconsin, on January 12, 1970, both men were found to be indigent. The court appointed one lawyer, Lewis Charles, to represent them both. A joint preliminary examination was held on January 20, 1970.
3
Soon after the lawyer was appointed, petitioner told him that he was dissatisfied with him.
4
It later developed that petitioner wanted a jury trial, but that his companion wished to waive his right to trial by jury. Their lawyer accordingly met with the presiding judge in chambers, prior to the arraignment of the two men, telling the judge that he believed the difference in opinion between the two men as to the form of the trial raised the possibility of a conflict of interest; that he wished to be relieved of the representation of one of the two men and that since petitioner had expressed dissatisfaction with his services whereas petitioner's companion had not, he believed he should be relieved of the representation of petitioner. The presiding judge told the lawyer that he agreed that there might be a conflict of interest; that he would relieve him of the representation of one client; that it was not his policy to grant requests for changes of appointed counsel; that the lawyer was appointed first to represent petitioner; and therefore, he would appoint new counsel for petitioner's companion.
5
At the arraignment which followed on January 28, 1970, petitioner asked the judge for the appointment of new counsel. The judge asked, 'On what grounds" Petitioner answered:
6
Well, I would like to get another legal opinion; and I feel that we are incompatible as to the line of defense.
7
Without inquiring further into the nature of petitioner's disagreement with his appointed counsel, the judge denied his request, saying:
8
Well, I feel that Mr. Charles is a capable lawyer, and will advise you of your rights, and do nothing that would not be compatible with your desires in this matter; so, I would deny your request; and we'll proceed with the arraignment.
9
After petitioner's request for a different lawyer was denied, petitioner pleaded not guilty and demanded a jury trial. His lawyer then asked for and was granted permission to withdraw as counsel for petitioner's companion.
10
On March 11, 1970, the state moved to dismiss the charge of theft against petitioner and petitioner pleaded guilty to the charge of burglary. On March 23, 1970, petitioner was sentenced to a term of five years in prison.
11
At petitioner's initial appearance, bail had been set for him in the amount of $2,000. Petitioner had been unable to raise the amount required and had remained confined until he was convicted.
12
When petitioner had been arrested, he and his companion were in petitioner's automobile. A search of the automobile at the scene of the arrest revealed a number of rifles and shotguns underneath the folded down back seat of petitioner's car. The guns were later identified as guns taken from Thompson Electric Motor Service, the scene of the burglary and theft with which the two men were charged. At the preliminary examination one of the arresting officers testified that after removing petitioner and his companion from petitioner's car, he reached into the front seat to remove and open can of beer from the floor and noticed the butts of several rifles or shotguns protruding from underneath the folded down back seat. Petitioner told his lawyer that the arresting officer was not telling the truth; that the guns could not have been visible to someone reaching into the front seat. Petitioner's lawyer verified to his own satisfaction that the arresting officer was telling the truth.
13
Petitioner's companion was tried without a jury on February 13, 1970. Prior to the trial, the motion to suppress the evidence seized as a result of the search of petitioner's car was denied following a hearing. He was found guilty of both burglary and theft.
14
Petitioner asked his lawyer to file motions to suppress evidence seized in the search of his car, and for change of venue, and an affidavit of prejudice against the presiding judge. His lawyer refused because he did not believe there was a basis for any of the motions.
15
Petitioner's lawyer met with the prosecutor and reached a plea bargain to the effect that if petitioner would plead guilty to the burglary charge, the state would move to dismiss the theft charge and would not oppose the recommendation of petitioner's lawyer for probation.
16
Petitioner was informed by his lawyer of the plea bargain conference, was told that his chances of acquittal were not good, and was advised to plead guilty.'1
17
Appellant does not contend that he was denied effective assistance of counsel.2 Nor can his argument be fairly characterized as a claim that he was denied a right to be represented by counsel of his choice, since there is nothing in the record to indicate that he wanted to be represented by any specific identifiable lawyer. See United States. v. Bergamo, 154 F.2d 31 (3d Cir. 1946). He contends that the state was required to appoint a different lawyer for him since he had advised the trial judge that he was dissatisfied with his counsel and the record does not disclose any acceptable reason for the judge's refusal to appoint another lawyer for him. He stresses his status as an indigent, and argues that 'respect for the dignity of the individual'3 justifies the relief he seeks.
18
We may assume that the reason given by the judge for refusing to substitute counsel-- manely that appellant's lawyer had been appointed to represent him before he was appointed to represent his codefendant-- was so insubstantial as to be the equivalent of no reason at all, and therefore properly characterized by appellant as 'arbitrary.'4 Nevertheless, appellant is not entitled to have a federal court revise that decision unless he has established that he was deprived of a federal constitutional right. It is, of course, well settled that a state court may err without offending the Federal Constitution. Since appellant received the effective assistance of counsel, and since there is no suggestion that the trial was fundamentally unfair,5 there is no basis for finding a violation of the Due Process Clause or of the Sixth Amendment as it applies to states by reason of the Fourteenth Amendment. The mere fact that an indigent deffendant advises a state trial judge that he is dissatisfied with his lawyer-- when that advice is not supported by facts raising questions of fairness or of the adequacy of counsel's representation-- does not require the judge either to appoint another lawyer or to justify his refusal to do so. The Federal Constitution does not require state judges to follow every procedure that we might consider desirable. Since appellant did not establish any constitutional right to different counsel, we adopt as our own the following language from Judge Doyle's Memorandum Opinion:
19
'It may well be advisable, any time a defendant in a criminal proceeding makes a specific request for a change of appointed counsel, that the presiding judge made an inquiry, on the record, into the reasons for the request. If he finds that the dissatisfaction is genuine and that a change of counsel at that point is practicable and will not unreasonably impede judicial processes, he can make a new appointment. On the other hand, if he finds to his satisfaction that the defendant's objections to his appointed counsel are made as a maneuver to delay his trial or otherwise to frustrate orderly judicial process, he can deny the request for a change of counsel. I do not think, however, that such a procedure is required under the Constitution of the United States.
20
I am not persuaded that a court's refusal to change appointed counsel for an indigent in the absence of specific allegations or evidence of ineffectiveness is an unconstitutional interference with a defendant's Sixth Amendment right to counsel or that it is comparable to the unreasonable disregard of a defendant's right to obtain private counsel show in the cases cited by petitioner.'6
The judgment is
21
Affirmed.
1
Memorandum Opinion at 1-3
2
The case is therefore unlike United States v. Woods, 487 F.2d 1218 (5th Cir. 1973)
3
See People v. Crovedi, 65 Cal.2d 199, 53 Cal.Rptr. 284, 417 P.2d 868, 873 (1966). Appellant has not indicated that his disagreements with counsel caused him to mistrust counsel, so that any right to confidence in counsel was not affected
4
Appellant properly argues that this case is, therefore, different from United States v. Hampton, 457 F.2d 299 (7th Cir. 1972), where the criminal defendant's objection to his appointed counsel was not voiced until the eve of trial
5
See Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656
6
Memorandum Opinion at 5-6
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627 So.2d 1107 (1993)
Bobby Aaron SAFFOLD
v.
STATE.
CR-92-0202.
Court of Criminal Appeals of Alabama.
April 16, 1993.
Rehearing Denied May 28, 1993.
Certiorari Denied August 27, 1993.
*1108 Joel S. Rogers III, Clanton, for appellant.
James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1921409.
TAYLOR, Judge.
The appellant, Bobby Aaron Saffold, was convicted of second degree rape, in violation of § 13A-6-62, Code of Alabama 1975. He was sentenced to 15 years' imprisonment, and the sentence was split, with the appellant to serve two years and the remainder of the sentence suspended, provided that the appellant serve five years' probation and agree to undergo testing for any sexual disorder and to submit to any treatment or counseling prescribed. The appellant was ordered to pay $1000 to the crime victims' compensation fund, plus court costs. He also was ordered to avoid contact with the victim or the victim's mother.
The state's evidence tended to show that the victim in this case was 13 years old at the time of the rape. During the summer of 1991, the victim was living with her father and her stepmother in Coosa County, Alabama. The appellant was the victim's stepbrother, and he was 30 years old at the time of the rape. The victim and the appellant were acquainted, and the appellant frequently visited the house where the victim lived.
On the morning of July 5, 1991, the victim was watching television alone at her father's house. At approximately 10:45 a.m., the appellant came into the house. A short time later, the appellant approached the victim and pushed her onto the couch. The victim testified that she tried to kick the appellant and that she screamed at him to get off of her. The victim said that the appellant pinned her legs down and held her wrists. The appellant then pulled the victim's shorts and panties off and unzipped his own pants. The appellant told the victim that he would let her go if she kissed him. She kissed him on the cheek. She stated that the appellant then said, "That wasn't good enough," and that he then penetrated her. Afterwards, the victim got up and put her clothes on. She went outside and sat down on the patio. The appellant approached her and told her that he was sorry and then left.
Audra Saffold, the appellant's sister, confirmed that she had left the victim alone on the morning of the rape. She testified that, as she was returning to the house, she saw the appellant driving away.
The victim's father later took the victim to be examined by Dr. Charles Camp. At approximately 3:00 or 3:30 p.m., on July 5, 1991, Dr. Camp performed a pelvic examination and collected evidence for the rape kit. He testified that the sperm he collected were nonmotile and he concluded that the victim had not had intercourse within three to four hours before he examined her. He admitted that a high level of acid in the victim's vagina could have killed the sperm in a shorter period of time. Dr. Camp did not note any physical signs of trauma other than a bruise on the victim's knee, but he said that he did not expect to find any signs of trauma if the rape occurred as the victim had described it.
Elaine Scott, a forensic serologist with the Department of Forensic Sciences, also testified for the state. She testified that she had performed a DNA analysis, comparing a sample of the appellant's blood with the semen included in the rape kit that had been given to her. She found a match between the blood sample and the semen on all three of the DNA sites tested.
I
The appellant initially contends that there was insufficient evidence to find him guilty of second degree rape, and, therefore, that the trial court erred in denying his motion for a judgment of acquittal. He argues that there was evidence presented at trial that raised a reasonable doubt concerning his guilt. He notes specifically a pre-trial statement by the victim, in which she said she was unsure whether the appellant had penetrated her vagina with his penis or with his finger. The appellant also notes that Dr. Camp's testimony tends to indicate that the victim did not have sex within three to four hours before *1109 her examination by Dr. Camp. Basically, the appellant is rearguing the evidence and has asked this court to act as a second trier of fact. This is not our function.
The statute defining second degree rape, § 13A-6-62, Code of Alabama 1975, states, in pertinent part:
"(a) A male commits the crime of rape in the second degree if:
"(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female."
When considering a sufficiency issue, a reviewing court views the evidence in the light most favorable to the state. Colvette v. State, 568 So.2d 319 (Ala.Cr.App.1990). Further, "it is not the province of [the Court of Criminal Appeals] to reweigh the evidence presented at trial." Watkins v. State, 565 So.2d 1227, 1231 (Ala.Cr.App.1990).
The "weight of the evidence" refers to "`a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.'" Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982); Bland v. State, 601 So.2d 521, 524 (Ala.Cr. App.1992); Johnson v. State, 555 So.2d 818, 820 (Ala.Cr.App.1989). Conflicting evidence presents a jury issue. Smith v. State, 583 So.2d 990 (Ala.Cr.App.), writ denied, 583 So.2d 993 (Ala.1991). "The jury is the judge of the facts, the demeanor of the witnesses, and their testimony." Finch v. State, 445 So.2d 964 (Ala.Cr.App.1983). Further, "[t]he testimony of the victim alone is sufficient to establish a prima facie case of either rape or sexual abuse," Jones v. State, 580 So.2d 97, 103 (Ala.Cr.App.1991), or any lesser included offense. Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied, 291 Ala. 803, 282 So.2d 355 (1973). Where facts are presented from which the jury could reasonably infer that the alleged crime has been committed, then the question must be submitted to the jury. Brandon v. State, 542 So.2d 1316 (Ala. Cr.App.1989). "The jury is then under a duty to draw permissible inferences from the circumstantial evidence presented and to base its verdict accordingly." Id. at 1318.
Based on the facts recited above, there was sufficient evidence presented to the jury for it to find the appellant guilty of second degree rape. Therefore, no reversible error occurred here.
II
The appellant next contends that the trial court erred by receiving the results of the DNA testing into evidence. He argues that the trial court erred by failing to grant him the "proper discovery" of the DNA testing procedures and results, in violation of Ex parte Perry, 586 So.2d 242 (Ala.1991). He also argues that the state failed to comply with his discovery requests, and that, therefore, the DNA test results should not have been received into evidence. However, the record does not support these allegations, and further, no error has been preserved for our review. On October 17, 1991, the appellant's trial counsel filed several discovery motions, including a request for reports of any scientific testing or analysis. On February 18, 1992, the appellant's trial counsel filed a motion to produce the results of the DNA test. However, when these motions were filed, no DNA testing had been performed. The results of the DNA test were sent to the state on August 25, 1992. Thereafter, the prosecutor sent the appellant's trial counsel the results of the test. This was the first opportunity that the state had to comply with the appellant's discovery request.
The appellant's trial began on September 1, 1992, only seven days after the results of the DNA test became available. However, the appellant did not request a continuance and there was no other discussion of the timeliness of the discovery until the second day of the trial. During this discussion, the appellant did not allege any error in the discovery proceedings. Also during the second day of trial, the trial court entertained the appellant's motion to suppress the state's DNA evidence. At this time the trial court granted the appellant's motion to suppress as to any testimony concerning population genetics or frequency statistics. However, the appellant withdrew his motion to suppress as *1110 it related to the "matching" portion of the DNA test and that testimony was admitted without objection.
Therefore, any issue concerning the state's compliance with discovery as it relates to the results of the DNA test and the admission of those results is being raised for the first time on appeal and is therefore procedurally barred. Donahoo v. State, 552 So.2d 887 (Ala.Cr.App.1989). "In order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court." Goodson v. State, 540 So.2d 789, 791 (Ala.Cr.App.1988). See also Wood v. State, 416 So.2d 794 (Ala.Cr.App. 1982).
The appellant also contends that the state failed to lay the correct foundation or predicate before the admission of the DNA test results. However, no objection was made concerning this issue and so this issue is being raised for the first time on appeal. Therefore, the issue is procedurally barred. Goodson, supra.
III
Last, the appellant contends that the chain of custody of the rape kit was not established prior to its admission into evidence. Again, however, the rape kit was received into evidence without objection from the appellant. Our jurisdiction is appellate only. Trawick v. State, 431 So.2d 574 (Ala. Cr.App.1983). We will not consider matters on appeal that have not first been presented to the trial court. Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982).
For the foregoing reasons, the judgment in this cause is due to be, and it is hereby, affirmed.
AFFIRMED.
All the Judges concur.
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12-387
Coleman v. Trader Joe’s Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 1st day of March, two thousand thirteen.
4
5 PRESENT:
6 Dennis Jacobs,
7 Chief Judge,
8 Amalya L. Kearse,
9 Susan L. Carney,
10 Circuit Judges.
11 _________________________________________
12
13 Kato Coleman,
14
15 Plaintiff-Appellant,
16
17 v. 12-387
18
19 Trader Joe’s Corporation,
20
21 Defendant-Appellee.
22 _________________________________________
23
24 FOR APPELLANT: Kato Coleman, pro se, Roosevelt, New York.
25
26 FOR APPELLEE: Mark W. Robertson and Matthew F. Damm, O’Melveny &
27 Myers LLP, New York, New York.
28
1 Appeal from a judgment of the United States District Court for the Eastern District
2 of New York (Feuerstein, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court is AFFIRMED.
5 Kato Coleman, pro se, appeals the district court’s dismissal of his lawsuit against
6 Trader Joe’s Corporation for his refusal to comply with discovery orders and his failure to
7 prosecute his claim (pursuant to Federal Rules of Civil Procedure 16(f), 37(b)(2)(A), and
8 41(b)). We assume the parties’ familiarity with the underlying facts, procedural history of
9 the case, and issues on appeal.
10 “[F]ailure to object timely to a magistrate’s report operates as a waiver of any
11 further judicial review of the magistrate’s decision.” Small v. Sec’y of Health and Human
12 Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). However, a pro se party’s failure to
13 object to a magistrate’s report within the fourteen-day time limit (prescribed by 28 U.S.C. §
14 636(b)(1)) usually will not operate as an appellate waiver, “unless the magistrate’s report
15 explicitly states that failure to object to the report within [fourteen] days will preclude
16 appellate review and specifically cites 28 U.S.C. § 636(b)(1) and [Federal Rules of Civil
17 Procedure 72 and 6(a)].” Id.
18 Coleman failed to object to the magistrate judge’s report and recommendation after
19 receiving clear notice that a failure to do so would result in a waiver of his right to
20 appellate review. In giving Coleman notice, the magistrate judge explicitly cited 28 U.S.C.
21 § 636(b)(1) and Federal Rules of Civil Procedure 72 and 6(a). Accordingly, Coleman has
22 waived his right to appellate review.
2
1 We have considered Coleman’s remaining arguments on appeal and find them to be
2 without merit. For the foregoing reasons, the judgment of the district court is hereby
3 AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
3
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NO. 07-01-0103-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 18, 2001
______________________________
GUADALUPE LOPEZ MORENO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242
ND
DISTRICT COURT OF SWISHER COUNTY;
NO. B3601-0008; HONORABLE ED SELF, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Guadalupe Lopez Moreno filed a Motion to Dismiss Appeal on May 10, 2001, averring that she no longer wishes to prosecute her appeal. The Motion to Dismiss is signed by both appellant and her attorney.
Without passing on the merits of the case, appellant’s motion for voluntary dismissal is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.2. Having dismissed
the appeal at appellant’s personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.
Phil Johnson
Justice
Do not publish.
ñ-åFINAL
NO. 07-99-0223-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 30, 1999
______________________________
BRIAN MILLSAP,
Appellant
V.
SHOW TRUCKS USA, INC.,
Appellee
_________________________________
FROM THE 86TH DISTRICT COURT OF KAUFMAN COUNTY;
NO. 53435; HON. GLEN M. ASHWORTH, PRESIDING
_______________________________
BOYD, C.J., and QUINN and REAVIS, JJ.
Following appellant’s failure to timely file a brief in this cause, we notified him on July 21, 1999 that his appeal would be dismissed, pursuant to Texas Rule of Appellate Procedure 42.3, unless he responded within ten days and showed good cause for continuing the appeal. Because of a clerical error in the July 21 notice, we again notified appellant to show good cause as to why the appeal should not be dismissed. Appellant’s
response was due August 13, 1999. To date, appellant has failed to respond. We accordingly dismiss this appeal for want of prosecution pursuant to Texas Rules of Appellate Procedure 38.8(a)(1) and 42.3(b) and (c).
Brian Quinn
Justice
Do not publish.
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199 F.2d 134
A/S J. LUDWIG MOWINCKELS REDERI et al.v.ACCINANTO, Limited, et al.
No. 6385.
United States Court of Appeals Fourth Circuit.
Argued April 9, 1952.
Decided September 22, 1952.
Wharton Poor, New York City, and William A. Grimes, Baltimore, Md. (Ober, Grimes & Stinson, Baltimore, Md., Haight, Deming, Gardner, Poor & Havens, and Tallman Bissell, New York City, on brief), for appellant and cross-appellees.
Henry N. Longley, New York City, (Bigham, Englar, Jones & Houston, New York City, and Lord, Whip & Coughlan, Baltimore, Md., on brief), for appellees and cross-appellants.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
1
These are cross appeals in suits in admiralty brought by cargo owners to recover damages arising out of the fire and explosion which destroyed the steamship Ocean Liberty and her cargo at the port of Brest in France on July 28, 1947. Libelants are the owners of cargo consigned to Antwerp or LeHavre. Respondents are A/S J. Ludwig Mowinckels Rederi (hereafter called Mowinckels) the charterer of the vessel and its general agent, the Cosmopolitan Shipping Company (hereafter called Cosmopolitan). Recovery was asked on the grounds that the fire and explosion which caused the destruction of vessel and cargo were the result of spontaneous combustion due to negligence in the stowage of a portion of the cargo consisting of ammonium nitrate, fertilizer grade (hereafter called Fgan) in the vessel's hold and that there had been a deviation in the voyage rendering respondents liable as insurers of the cargo. Respondents denied that the fire and explosion were due to spontaneous combustion or to improper stowage of the Fgan or that they were liable as insurers and relied upon the provisions of the Fire Statute, 46 U.S. C.A. § 182, and the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(2)(b). The District Judge found that there was no deviation but that there was spontaneous combustion of the Fgan due to negligence in its stowage for which there was liability on the part of Mowinckels but not on the part of Cosmopolitan. See D.C., 99 F.Supp. 261. From this decision both Mowinckels and the cargo owners have appealed. In the view that we take of the case three questions are presented for our consideration: (1) Was the fire and explosion which destroyed the cargo due to the spontaneous combustion of the Fgan? (2) If so, was this the result of negligence in the stowage of the Fgan for which Mowinckels or its agent Cosmopolitian are liable? (3) Was there a deviation in the course of the vessel rendering Mowinckels liable as an insurer of the cargo?
2
Mowinckels operates vessels between the United States North Atlantic ports and Antwerp and the Northern French ports, in a service known as the Cosmopolitan Line; and Cosmopolitan Shipping Company, Inc., is general agent for the line in New York. The Ocean Liberty was chartered by Mowinckels for one voyage and arrived in Baltimore on June 28, 1947, to take on cargo. The loading was done by Terminal Shipping Company, a competent stevedore company at the port of Baltimore which was employed for this purpose by Cosmopolitan.
3
Before the loading began, unusual precautions were taken because a large part of the cargo consisted of 3309 tons of Fgan, and a recent disastrous fire and explosion on ships at Texas City had given warning that danger from the handling of this material was to be anticipated. The ship was inspected upon her arrival in Baltimore by representatives of the United States Coast Guard, the Baltimore Fire Department and the Board of Underwriters of New York, and at their direction the holds of the vessel were thoroughly washed. Loading began on June 30 and was completed on July 5. The stowage of Fgan was done under the supervision and in accordance with the directions of the same authorities and in substantially the same manner as other ships had been loaded with Fgan under their direction. Large quantities of Fgan had theretofore been safely loaded at Baltimore and other United States ports and safely carried to foreign ports in Europe and Asia.1 The judge found that the directions of the fire preventive authorities were duly observed and that as the result of these precautions the stowage was sufficient to prevent fire from originating outside of the fertilizer, but that these extra precautions increased the danger from spontaneous combustion within the material.
4
The fire originated in the fertilizer in No. 3 hold. This hold was 47'6" fore and aft between stiffeners, 54'7" athwart ship between cargo battens, and 24'3½" in depth. There was a hatch opening 20' square from the hold into the 'tween deck space. In this hold were stowed 1381 tons of Fgan contained in 30,480 multiwall paper bags weighing about 100 pounds each and occupying a space of 1.6 cubic feet per bag. In addition 739 tons of Fgan were stowed in lower hold No. 1 and 1189 tons in lower hold No. 5. No other cargo was placed in these holds and after the nitrate was loaded the holds were closed and none of the 'tween deck hatches were thereafter opened.
5
The bags were placed solidly tier upon tier to the number of 20 or more in hold No. 3. There was dunnage separating the bags from the cargo battens and a layer of dunnage underneath. This dunnage was employed to keep the bags from coming in contact with iron work and from being torn and spilling the contents, and also to protect the bags from condensation of moisture. There was an air space of 2 feet between the top tier of bags and the ceiling of the hold. The whole mass of bags, however, was completely surrounded with heavy paper on all sides placed over the wooden dunnage and also with waterproof paper over the top of the mass so that the only possible circulation of air in the hold was within the space above the bags or in the space between the battens and the skin of the ship. Thus, hold No. 3 contained a solid mass of stowage of Fgan from the forward bulkhead to the after bulkhead and from the batten boards on one side of the ship to the batten boards on the other side of the ship. The ship was equipped with a standard ventilation system communicating with the holds but there was no free circulation of air through the mass of the nitrate.
6
After the lower holds of the ship were loaded with Fgan, the vessel proceeded to New York where she took on additional cargo. She left New York on July 11 with a total cargo of 7787 tons on board of which 850 tons were to be discharged at Antwerp and the balance at French ports, and it was expected that her first port of call would be Antwerp. A wildcat strike of longshoremen, however, broke out at Antwerp on July 18, 1947 and was not over until July 31. If the vessel had proceeded first to Antwerp, she would have arrived on July 24 when the strike was at its height, and the discharge of the vessel would have been practically impossible. On July 22 the French government, for which a great part of the cargo was shipped, directed that the ship should discharge the cargo intended for French ports, first at Brest and then at Cherbourg. Because of this order and of the strike at Antwerp the ship proceeded to Brest where she arrived on July 23.
7
A considerable part of the Antwerp cargo and some of the Havre cargo were first discharged in order to facilitate the discharge of other cargo required by the French government. The discharge proceeded until July 28, 1947 when at 12:30 P.M. a yellowish smoke was seen to be issuing from the starboard ventilator which opened into both No. 2 and No. 3 holds. Very soon thereafter smoke was seen emerging from ventilators connected with No. 3 lower hold and 'tween deck only. The officers of the ship put on steam in the fire smothering apparatus in the No. 3 hatch and covered the ventilator of the hatch. Since an explosion was feared the hatchboards on the fore end of the starboard hatch were opened and immediately yellow smoke came out of the hatch with suffocating gas. The fire became worse and worse and the men were ordered to abandon ship. A tug boat towed the ship out of the harbor and it was grounded on a sand bank. The cargo continued to burn vigorously until about 5:35 P.M. when an explosion took place which totally destroyed the ship with the exception of a small part of the stern.
8
The District Judge found that the cause of the fire had not been proved beyond a reasonable doubt but that the preponderance of the evidence fairly established the conclusion that the fire originated by spontaneous combustion of Fgan in No. 3 lower hold. That the fire began in this hold is convincingly shown by entries in the ship's logs and by the testimony of carrier's witnesses to the effect that heavy yellow smoke with suffocating gas came out of the hold, when the fire was first discovered, and also by testimony of these witnesses that it was not possible for the fire to have entered from the outside because the hatches were tightly closed and the ventilators were covered by two layers of fine steel mesh.
9
There is considerable doubt as to whether the fire was due to spontaneous ignition or combustion or, if so, whether this was the result of lack of ventilation in the stowage; but, in the light of the expert testimony given in the case as to the danger of spontaneous ignition of Fgan when stored in large masses without adequate ventilation, we think that this furnishes the most plausible theory of the origin of the fire that has been advanced. At all events we do not think that we would be justified in holding that the finding of the trial judge to that effect is clearly wrong and consequently accept that finding.
10
We do not think, however, that there is adequate support for the finding that there was negligence in the stowage of the Fgan or for holding Mowinckels liable because of such stowage. In the first place, we do not think that in the light of knowledge existing at the time it can be said that there was negligence or lack of ordinary care in the stowage. Fgan was a new chemical product, sold as a commercial fertilizer, and its propensity for generating heat with danger of spontaneous ignition or combustion was not known to the shipping world. Even the chemical experts upon whose testimony the finding of the trial judge was based do not claim to have had any experience with Fgan at that time and had given no study to it prior to the Texas City disaster. The most that they attempted to say with respect to prior knowledge was that it was known that ammonium nitrate would heat when brought in contact with carbonaceous substances and from this they reasoned that, since the wax coating and paper bags were carbonaceous substances with which the ammonium nitrate was in contact, this accounted for the fire and explosion. Even they do not say that at the time of the loading of the Ocean Liberty there was any scientific teaching to the effect that Fgan was likely to heat because of its wax coating or that it was dangerous to stow it in paper bags, or that it was customary to give it any greater ventilation than other bagged cargo. In other words, the prior knowledge to which these expert witnesses testified was scientific knowledge with respect to ammonium nitrate and its qualities, having no reference whatever to Fgan and its handling as a commercial product. To say that the qualities of Fgan were known because of the scientific knowledge with respect to ammonium nitrate is like saying that a chemical patent is anticipated by prior knowledge with regard to the chemicals which are its constituent elements.
11
On the other hand, there was evidence that the scientific knowledge available with respect to Fgan, as distinguished from ammonium nitrate, at the time of the loading was to the effect that there was no danger of heating because of the wax coating. A circular of the United States Department of Agriculture issued in March 1945 stated the conclusion of one Wilde, based on experiments at the Soil and Fertilizer Laboratory, that there was no evidence to support the theory of the oxidation of the organic coating material with resultant heating and that the addition of 0.5 percent wax should have no adverse effect on the material as regards the likelihood of spontaneous ignition — that in tests made there was no indication of spontaneous heating in the samples with wax or resin coating or in the untreated material. This finding of Wilde was considered sufficiently current and authentic to be included in the Bureau of Mines information circular issued in June 1948. A report made by the Picatinny Arsenal in July 1947 of experiments following the Texas City disaster states "The temperature required to cause the spontaneous ignition of bagged nitrate fertilizer has been found to be so high (150 degrees centigrade) as to indicate the improbability of this being the origin of the fire on board the `Grand Camp'". The report of the Interagency Committee, appointed under the authority of the Treasury, of August 1947, states: "Limited tests and experience indicate that ammonium nitrate fertilizer of the type involved in the Texas City disaster, stowed as cargo in holds of ships, does not heat spontaneously when the temperature of the fertilizer at the time of loading does not exceed 140 degrees fahrenheit". (The testimony is uncontradicted that the temperature at the time of loading did not exceed 100 degrees fahrenheit and the trial judge so found). It was stated as a conclusion in this report that "fire caused by the carelessness of men smoking" was believed to be the primary cause of the Texas City disaster, and this was based upon an investigation made by the Coast Guard immediately following the disaster. Captain Carter, the representative of the Board of Underwriters of New York, under whose directions the ship was loaded, had this to say with regard to the technical evidence then available:
12
"Well, first of all, regarding the heating, or spontaneous combustion, frankly, I don't know of any technical evidence which will indicate that ammonium nitrate will heat of its own accord and break into fire. Now the technical evidence does show that at temperatures above 300 degrees it will decompose. In that respect I understand that the ordnance depots that manufacture ammonium nitrate bag it at a temperature of nearly 180 degrees when they put it in the bags. We found that when it arrived in the railroad cars for the steamer Golden West and when it was exposed to the air did cool off, but I know of no positive information that will show that ammonium nitrate will heat of its own accord similar to fish meal, so in the light of what information is available I think that the ventilation problem on the Ocean Liberty was adequately taken care of. Now, it may be proven later that it wasn't. I am speaking about what is known about ammonium nitrate now. * * * It was my understanding that it (ammonium nitrate fertilizer) was not self heating."
13
The shipping world was greatly shocked as a result of the Texas City disaster and a careful study was made by the National Board of Fire Underwriters into the causes of the disaster. The Board circulated a report in May following giving all that could be learned about the dangers of Fgan and making recommendations as to how it should be handled. This report was given wide circulation throughout the country. Nowhere is there any suggestion in it that Fgan is more dangerous than pure ammonium nitrate or that there was any danger of stowing it in paper bags. Only the most general recommendation about proper ventilation was given; and there was no suggestion that rice ventilators should be used to provide ventilation in the mass or that cargo of Fgan should be stowed in any other way than other bagged cargo.2 The report contained fourteen recommendations dealing with such matters as cleaning the hold, screening ventilators, having fire hose connected during loading, prohibiting smoking, covering galvanized materials, keeping separate from coal, cotton and phosphates, etc. The only one of the recommendations having any reference to ventilation was as follows: "Proper dunnage and sweat boards must be used in ship's hold and box cars to prevent friction and to allow for circulating of air". A recommendation with respect to storage in warehouses provided that piles should not be more than 10 bags high, 6 bags wide and 30 bags long, with 3 feet separation between piles and with handling aisles of 10 feet every 100 feet, with the statement "Separation specified is for inspections and fire fighting operations". This recommendation manifestly was intended to have no application to stowage on shipboard.
14
Following this report of the National Board of Fire Underwriters, the Board of Underwriters of New York, an organization representing a large number of marine insurers, issued recommendations for the handling of Fgan evidently based upon the report and recommendations of the National Board of Fire Underwriters and practically repeating those recommendations. There was no recommendation that Fgan be not handled in paper bags or that it be stowed in any different manner from that which had been customary. The only one of the 14 recommendations at all pertinent was number 8, which provided: "8. For the present no restriction as to the height to be carried. However, cargo should be so stowed to allow a free circulation of air." If this had been intended to require ventilation through the mass of the stowed cargo by rice ventilators or other means, this surely would have been clearly stated. It seems to relate to the height of the stacks and to forbid their being carried so high as to cut off free circulation of air to the hold. The precautionary measures set forth in both of these sets of recommendations were designed to guard against all hazards which were known to exist with respect to the handling of nitrate; and it is most significant that all relate to the danger of fire from outside sources or from the reaction with zinc or other foreign matter and not a one of them suggests danger from internal heating. When the underwriters upon whom the losses from improper loading would fall have made careful study and issued instructions with no suggestion that there was danger from internal heating, it would be unreasonable to hold that carriers and stevedores for whose guidance the instructions were issued should have anticipated the danger.
15
Because Fgan was being shipped from the port of Baltimore and because the Texas City disaster had called attention to the danger of handling it, a meeting was held several weeks before the loading of the Ocean Liberty to discuss the handling of Fgan. This meeting was attended by steamship agents, representatives of the Board of Underwriters of New York, representatives of the United States Coast Guard and representatives of the fire prevention branch of the Baltimore City Fire Department. The meeting was addressed by an expert chemist; and the conclusion reached was that there was no danger in handling Fgan if proper precautions were taken to guard against fire. No suggestion was made that Fgan was not to be stowed in paper bags or that it was to be stowed in any other way than other bagged cargo was stowed. The Baltimore Fire Department enacted an ordinance covering the matter, which embraced verbatim the recommendations of the National Board of Fire Underwriters, and the terms of this ordinance were enforced. A number of ships, including the Ocean Liberty, were loaded with Fgan following the adoption of the ordinance in accordance with its terms. All of them were loaded as in the case of other bagged cargo without any special ventilation of the mass of bags piled bag on bag.
16
When the Fgan was offered to Cosmopolitan for shipment, it made inquiry and found that the shipment was permitted. It then contracted for Mowinckels with the Terminal Shipping Company, a reputable and experienced stevedoring company, to do the loading and stipulated that the loading be done in accordance with the regulations and directions of the U. S. Coast Guard, the Baltimore City Fire Department and the Board of Underwriters of New York and under their supervision. The loading was in fact done under the supervision of representatives of these agencies, and the representative of the Board of Underwriters of New York gave a certificate that, so far as it came under his observation, the cargo had been loaded and stowed on the vessel in accordance with the rules of the Board of Underwriters. The president of the Terminal Shipping Company and its general manager who had the loading in charge had attended the meeting in Baltimore a few weeks before, in which the danger problems connected with the handling of Fgan had been discussed. The loading was done under the supervision of the same officials that had supervised the loading of other vessels with Fgan in the port of Baltimore; and they testified unequivocally that there was no difference in the way that the Ocean Liberty and the other vessels were loaded, that none of the safety regulations provided for their guidance were violated and that they regarded the stowage as proper.
17
Whether the loading was proper in the light of subsequent knowledge or not, it is difficult to see what precautions the Terminal Shipping Company did not take that it should have taken in the light of knowledge then existing. It followed the instructions of the Fire Department and the Board of Underwriters based on knowledge acquired from the Texas City disaster, and what it did had the approval of the Coast Guard whose sole interest in the matter was the protection of shipping. If it had sought the advice of the chemical experts upon whose testimony the cargo owners rely, it might or might not have received different instructions. Stevedores and carriers should be held to a high degree of care in ascertaining the dangers inherent in cargo that they are handling; but surely they are not to be held negligent when they seek and follow the advice of expert and experienced agencies such as the Coast Guard, the Fire Department and the Board of Underwriters, instead of mapping out rules of their own based upon consultation with academic experts.
18
It should be remembered, in this connection, that the Interagency Committee to whose report reference has heretofore been made was appointed by the Secretary of the Treasury immediately following the Texas City disaster "to study every possible hazardous aspect of ammonium nitrate and develop additional information relative to such hazards in transportation, handling and stowage and to recommend a national policy in conformity with these objectives". On August 20, 1947 the committee made its report relative to Fgan in advance of the other portions of its report so as to provide authentic information and pertinent recommendations which might be followed with confidence by those concerned, stating that "Ship operators, port authorities, stevedores and others are awaiting the findings and recommendations of the federal government as a guide to safety". Nothing in the report suggests any danger from internal heating of Fgan or makes any recommendation with respect to internal ventilation of the mass by rice ventilators or otherwise. Not only was stowage in paper bags not condemned by the report, but it recommended their use under specifications to be promulgated by the Interstate Commerce Commission. There was a recommendation that paper be not used as dunnage; but this was for the purpose of "reducing the combustible material present in the hold" without any suggestion that its contact with the Fgan might lead to internal heating or spontaneous combustion. This committee was not only itself composed of distinguished experts3 but it presumably sought the advice and assistance of the most competent experts on the subject then available. When it filed its report not only had it been studying the causes of the Texas City disaster but it must also have known of the disaster to the Ocean Liberty which had occurred three weeks before. It would not be reasonable to hold the carrier or the stevedore chargeable with knowledge that this expert committee did not have, or with reaching conclusions that it did not reach after careful study, or with negligence in not adopting safety measures that the committee did not so much as suggest.
19
Even if the Terminal Shipping Company should be held guilty of negligence in failing to provide adequate ventilation in the stowage of the Fgan, we do not think that this could be held to be the fault of either Mowinckels or Cosmopolitan, its general agent who contracted with the stevedoring company, or that either can be held privy thereto under the Carriage of Goods by Sea Act, which provides, 46 U.S. C.A. § 1304(2) (b), that "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (b) Fire, unless caused by the actual fault or privity of the carrier".
20
If there was negligence in failing to provide adequate ventilation for the Fgan, this was the negligence of the stevedore, the Terminal Shipping Company, and not the negligence of the carrier or its general agent who employed the stevedore. It is suggested that there was liability on the part of the carrier and its agent because in oral instructions and a letter to the stevedore the agent insisted that certain safety recommendations of the Board of Underwriters and the city fire department be followed and that the loading be done under the regulations and directions of the Coast Guard. That letter dated June 11, 1947, is as follows:
21
"There is booked for S.S. `Ocean Liberty' due at Baltimore June 27-28th, a shipment of Ammonium Nitrate (fertilizer). This shipment of up to 4,000 tons is to be loaded at your port and we have tentatively laid out Nos. 1, 3 and 5 Holds, including Deep Tanks in No. 1, and Nos. 1 and 3 Tween Decks for this commodity. As the vessel will also load at New York, we would prefer to have the compartments used for Nitrate completed at Baltimore.
22
"Prior to loading please see that the compartments are absolutely clean. Dunnage must be laid not only on tank tops and ceiling but also on bilge ceilings. During the loading operations have fire hose stretched and do not allow anyone to smoke in holds or on deck. The stevedore should instruct his men to handle hatch beams carefully to avoid sparks. In tween decks it will be necessary to leave sufficient headroom for air circulation. For other details and regulations you will consult the U. S. Coast Guard who must be notified and under whose direction this commodity is loaded."
23
There is manifestly nothing in this letter which shows that Mowinckels or Cosmopolitan retained any control over the loading. All that it does is stipulate that the stevedoring company observe certain precautions in loading which were prescribed by the public authorities, and that it load under the direction of the U. S. Coast Guard. Surely, such insistence upon safety regulations does not make the carrier privy to any fault or neglect of the stevedore; and without such privity there is no liability for the stevedore's negligence. Pertinent here is what was said by Mr. Justice Jackson, speaking for the Supreme Court in a case involving the fire statute, Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo (The Venice Maru) 320 U.S. 249, 250, 64 S.Ct. 15, 16, 88 L.Ed. 30. He said:
24
"Upwards of 660 tons of sardine meal in bags was stowed in a substantially solid mass in the hold. In view of its susceptibility to heating and combustion it had inadequate ventilation. As the ship neared the Panama Canal, fire broke out, resulting in damage to cargo and ship. The cause of the fire is found to be negligent stowage of the fish meal, which made the vessel unseaworthy. The negligence was that of a person employed to supervise loading to whom responsibility was properly delegated and who was qualified by experience to perform the work. No negligence or design of the owner or charterer is found."
25
The court below, in an opinion by Judge Learned Hand, had exonerated the vessel under the Fire Statute, although approving a finding that there was negligence in the stowage. Consumers Import Co. v. Kawasaki Kisen Kabushiki Kaisha, 2 Cir., 133 F. 2d 781. In that case the charterer's business was in charge of one Okubo who arranged with one Fegen to load the cargo of fish meal. Judge Hand, referring to the relationship which would charge the owner or charterer with responsibility for negligence in stowage, said, 133 F.2d 784:
26
"Only Okubo and Fegen can be even plausibly suggested as standing in the required relation to the charterer; and, although Okubo certainly did stand so, Fegen did not. Since the claimants argue otherwise we will consider the evidence in a little detail. In answer to interrogatories Okubo swore that `in case of sardine meal' the charterer `employed * * * Fegen to advise with the masters and chief officers on its loading and stowage in their respective vessels.' Again, that the master and chief officer of the `Venice Maru' `supervised' the stowage `and, insofar as the loading and stowage of sardine meal was concerned, were advised by Mr. F. H. Fegen.' Upon letters rogotory he swore that the charterer `employed * * * a surveyor * * * to inspect stowage on every vessel.' Fegen swore that he `was appointed by Cornes & Co. at Kobe to lay out the manner and method of stowage of the sardine meal and to supervise such stowage * * * and I believe that Cornes & Co. were employed by Kawasaki Kisen Kabushiki Kaisha'; that he did so, `and gave instructions to Chief Officer of the "Venice Maru" regarding manner and method of the stowage and arrangement of ventilation and also exercised supervision over said stowage and ventilation'. This was very far from making Fegen the local manager at Kobe. It was Okubo who had that position, and whose personal dereliction was necessary to fix any liability upon the charterer for damage by fire."
27
See also Earle & Stoddart v. Ellerman's Wilson Line, 287 U.S. 420, 53 S.Ct. 200, 77 L.Ed. 403; American Tobacco Co. v. The Katingo Hadjipatera, 2 Cir., 194 F.2d 449; Hoskyn & Co. v. Silver Line, 2 Cir., 143 F. 2d 462; The Ida, 2 Cir., 75 F.2d 278.
28
We do not think that the carrier can be held liable on the theory that stowage of cargo was a non-delegable duty negligence in performance of which should be imputed to the carrier in determining whether it had exercised due care to make the vessel seaworthy. Directly in point is the case of Earle & Stoddart v. Ellerman's Wilson Line, supra, 287 U.S. 420, 53 S.Ct. 200, in which a vessel was held to be exempted from liability by reason of the fire statute, although she was rendered unseaworthy before leaving port as the result of the negligent stowage of coal in her bunkers by her chief engineer. The exemption of the fire statute is admittedly the same as that provided by the Carriage of Goods by Sea Act. The Supreme Court, speaking through Justice Brandeis, thus dealt with the questions which seem to be crucial here:
29
"The contention is that the statute does not confer immunity where the fire resulted from unseaworthiness existing at the commencement of the voyage and discoverable by the exercise of ordinary care; * * *. The first statute, in terms, relieves the owners from liability `unless such fire is caused by the design or neglect of such owner.' The statute makes no other exception from the complete immunity granted. The cargo owners do not make the broad contention that the statute affords no protection to the vessel owner if the fire was caused by unseaworthiness existing at the commencement of the voyage. Their contention is that it does not relieve the owner if the unseaworthiness was discoverable by due diligence. The argument is that the duty of the owner to make the ship seaworthy before starting on her voyage is nondelegable, and if the unseaworthiness could have been discovered by due diligence there was necessarily neglect of the vessel owner. * * * The courts have been careful not to thwart the purpose of the fire statute by interpreting as `neglect of the owners the breach of what in other connections is held to be a nondelegable duty."
30
The purpose of the fire exemption in the Carriage of Goods by Sea Act is the same as the purpose of the fire statute, and pertinent, therefore, is what was said by Mr. Justice Jackson in the Venice Maru, supra, as follows:
31
"At common law, the shipowner was liable as an insurer for fire damage to cargo. We may be sure that this legal policy of annexing an insurer's liability to the contract of carriage loaded the transportation rates of prudent carriers to compensate the risk. Long before Congress did so, England had separated the insurance liability from the carrier's duty. To enable our merchant marine to compete, Congress enacted this statute. It was a sharp departure from the concepts that had usually governed the common carrier relation, but it is not to be judged as if applied to land carriage, where shipments are relatively multitudinous and small and where it might well work injustice and hardship. The change on sea transport seems less drastic in economic effects than in terms of doctrine. It enabled the carrier to compete by offering a carriage rate that paid for carriage only, without loading it for fire liability. The shipper was free to carry his own fire risk, but if he did not care to do so it was well known that those who made a business of risk-taking would issue him a separate contract of fire insurance. Congress had simply severed the insurance features from the carriage features of sea transport and left the shipper to buy each separately. While it does not often come to the surface of the record in admiralty proceedings, we are not unaware that in commercial practice the shipper who buys carriage from the shipowner usually buys fire protection from an insurance company, thus obtaining in two contracts what once might have been embodied in one. The purpose of the statute to relieve carriage rates of the insurance burden would be largely defeated if we were to adopt an interpretation which would enable cargo claimants and their subrogees to shift to the ship the risk of which Congress relieved the owner. This would restore the insurance burden at least in large part to the cost of carriage and hamper the competitive opportunity it was purposed to foster by putting our law on an equal basis with that of England."
32
While there has been much confusion of many issues in a lengthy trial, the case on the issue of negligence in the stowage attributable to the carrier is comparatively simple and comes to this: Fgan was a new chemical product about whose qualities little was known by the shipping public. The disastrous explosion at Texas City aroused the interest of shippers and underwriters and the subject of danger in shipping this product was given immediate study. It was studied in Baltimore as well as else-where and representatives of the Terminal Shipping Company participated in the study. When the shipment of Fgan was offered to Cosmopolitan, it employed Terminal to do the loading and directed it to follow the instructions of the Coast Guard, the Fire Department and the Board of Underwriters. In so doing, Cosmopolitan exercised all the care that could be required of a reasonably prudent man in the premises; and, if there was negligence in the stowage, it was the fault of Terminal, whose negligence would not constitute actual fault or privity on the part of the carrier.
33
We find nothing to the contrary in the cases upon which the cargo owners rely. In Bank Line v. Porter, 4 Cir., 25 F.2d 843, the cargo was one involving well known danger of spontaneous combustion if kept in storage an undue length of time, and the carrier negligently failed to take proper precautions to avoid the danger when the voyage was prolonged as a result of breakdown in the vessel's machinery. The question in that case was the seaworthiness of the vessel to carry a cargo likely to yield to spontaneous combustion, in view of a known defective condition of machinery that unduly prolonged the voyage. The decision of that question can manifestly have no relevance here. Equally irrelevant is the decision in Cornec v. Baltimore & O. R. Co. (The Richelieu), 4 Cir., 48 F. 2d 497, where recovery was allowed against a railroad company loading a vessel, not the vessel or its owners, because of negligence in the loading. This negligence consisted in operating sparking machinery in a cloud of explosive pitch dust. This case dealing with the negligence of the stevedore, throws no light on the liability of the carrier for the stevedore's negligence. In the Nichiyo Maru, 4 Cir., 89 F.2d 539, the question involved was whether deterioration of fish meal was due to its inherent nature or to negligent stowage. In holding that the deterioration was due to negligent stowage, the court based its decision on the ground that known qualities of fish meal and approved methods of stowing it had been ignored. There was no decision that the carrier was liable for negligent stowage by the stevedore. That question was decided directly to the contrary in the Venice Maru, supra.
34
The question of deviation was fully and correctly treated in the opinion of the court below and we are in thorough accord with what was there said with regard thereto. See also The San Giuseppe, 4 Cir., 122 F.2d 579.
35
Libelants contend here that Mowinckels is liable as an insurer for that part of the cargo stored on deck but covered by clean bills of lading. No such point seems to have been made in the court below or considered by the trial judge and it is too late to make it for the first time on appeal. 3 Am.Jur. p. 25; Minnich v. Gardner, 292 U.S. 48, 53, 54 S.Ct. 567, 78 L.Ed. 1116; Burnet v. Com. Imp. Co., 287 U.S. 415, 418, 53 S.Ct. 198, 77 L.Ed. 399. At all events, there is nothing in the point. Even though stowage on deck of cargo shipped under clean bills of lading constitutes a deviation, this does not deprive the carrier of his right to exoneration under the fire provision of the Carriage of Goods by Sea Act, just as it does not deprive the owner of the protection of the fire statute, unless it was a cause of the fire. See The Ida, 2 Cir., 75 F.2d 278, 279; Globe & Rutgers Fire Ins. Co. v. United States, 2 Cir., 105 F.2d 160, 166; The Venice Maru, D.C., 39 F.Supp. 349, 353; The Margaret Lykes, D.C., 57 F.Supp. 466, 470. As said by this court in The San Giuseppe, 4 Cir., 122 F.2d 579, 586, "While it is true that, upon a deviation, the vessel becomes an insurer of the cargo, the doctrine seems fairly well established that she is not liable for loss or damage which `must equally have occurred even if there had been no deviation'. Scrutton on Charter Parties and Bills of Lading, p. 310; Story on Bailments 8th Ed., pp. 466, 467; Williston on Contracts § 1096; James Morrison & Co., Ltd. v. Shaw, Savill & Albion, Ltd. (1916) 2 K.B. 783; The Hermosa, 9 Cir., 57 F.2d 20, 27; Maghee v. Camden, etc., R. Co., 45 N.Y. 514, 6 Am.Rep. 124; Memphis & C. R. R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; The Ida, 2 Cir., 75 F.2d 278; Globe & Rutgers Fire Ins. Co. v. United States, 2 Cir., 105 F.2d 160, 166; The Caterina Gerolimich, D.C., 43 F. 2d 248, 252." See also The Delaware, 14 Wall. 579, 598, 20 L.Ed. 779.
36
For the reasons stated, the decree appealed from will be reversed in so far as it grants recovery against Mowinckels and will be affirmed in so far as it exonerates Cosmopolitan from liability, and the case will be remanded with direction to dismiss the libels. The costs on the appeals taken will be taxed against libelants, except that no cost will be taxed for printing the appendix to the brief of appellants because of failure to comply with the provisions of rule 10 of this court.
37
In American Surety Co. of New York v. First National Bank, 4 Cir., 141 F. 2d 411, 418, we notified counsel in the following language that we expected the provisions of rule 10 to be observed. We said:
38
"We expect counsel to observe the provisions of our Rule 10, to the effect that the record shall not be printed, but that the parties shall state the facts in their briefs, printing as an appendix thereto those parts of the record material to the questions presented that they desire the Court to read. * *
39
"Since the abolition of the rule requiring narration of the record, something must be done to reduce the cost of printing and to obviate the necessity of the Court's having to read great masses of immaterial matter. We have attempted to solve the problem by the adoption of Rule 10. Under that rule we expect counsel to select from the typewritten record and print in the appendix to their briefs only those material parts of the record which it is considered important for us to read because they throw light on controverted questions presented by the appeal, such parts, for example, as a diligent lawyer would ordinarily quote in a brief before a trial judge reviewing the report of a master. Counsel should not forget that the entire record is before us in typewritten form and that reference can be made to it without printing in the appendix the parts to which reference is made. We will not countenance evasion of the rule by printing the entire record as an appendix to the brief; nor will we countenance wholesale printing of irrelevant matter, even if there is colorable compliance with the rule. Violation of the rule will be given consideration, as here, in taxation of costs; and, in aggravated cases of violation, briefs and appendices will be stricken or a reprinting of the appendix in accordance with the rule will be ordered."
40
We expect the rule to be observed in admiralty and patent cases as well as in other appeals and by counsel from other circuits as well as by resident counsel.
41
Affirmed in part, reversed in part and remanded.
Notes:
1
The evidence identifies twenty or twenty-one ships stowed in substantially the same way as the Ocean Liberty. Fifteen of these were loaded in Baltimore in the first half of 1947 and five or six near New Orleans in 1949 and 1950
2
The trial judge states in his findings of fact that "No rice ventilators were used to make aisles within the solid stow such as were known and used with respect to some other commodities such as fish meal. It apparently was not thought of as customary with bagged fertilizer". There is no evidence that rice ventilators or other similar device was ever used in the stowage of Fgan. The Interagency Committee in its report of August 1947 made no such recommendation, although it dealt in great detail with the subject of stowage of Fgan on vessels
3
The committee was composed of the following persons:
Colonel C. H. Dietrick, USA, Office, Chief of Ordnance, War Department; Lieut. Colonel K. W. Gillespie, USA, Office, Chief of Transportation, succeeded on July 21 by Lieut. Colonel Morton E. Townes, USA, of Transportation Corps; Lieut. Colonel Myer Fried, USA WDGS, War Department; Colonel F. H. Miles, Jr., USA, President, Army-Navy Explosives Safety Board; Colonel D. C. Hall, USA, Army-Navy Explosives Safety Board; Mr. J. W. Connelly, Office of Chief of Naval Operations, Navy Department; Mr. F. F. Dick, Bureau of Ordnance, Navy Department; Dr. Arno C. Fieldner, Department of Interior; Dr. Bernard Lewis, Bureau of Mines, Department of Interior; Mr. George W. Jones, Chemist, Bureau of Mines, Department of Interior; Mr. W. G. Finn, Department of Agriculture; Dr. R. O. E. Davis, Bureau of Plant Industry, Soils and Agricultural Engineering, Department of Agriculture; Mr. John A. Dickinson, National Bureau of Standards, Department of Commerce; Mr. V. E. Haninger, Section of Explosives, Interstate Commerce Commission; Mr. F. H. Van Riper, Special Assistant, U. S. Maritime Commission; Mr. H. A. Campbell, Chief Inspector, Bureau of Explosives, Association of American Railroads; Mr. W. G. McKenna, Chief Chemist, Bureau of Explosives, Association of American Railroads; Mr. William T. Butler, Chief, Hazard Prevention Section, Merchant Vessel Inspection Division, U. S. Coast Guard, Treasury Department.
42
SOPER, Circuit Judge (dissenting).
43
On April 16 and 17, 1947, an appalling disaster occurred at the City of Texas City, Texas, on Galveston Bay, when some 600 persons were killed and many millions of property were destroyed by the explosions of the S/S Grand Camp and S/S High Flyer in the harbor. Although there was some uncertainty at the time as to the cause of the explosion the probability was very strong and it was later judicially determined that it was due to the spontaneous combustion of a quantity of ammonium nitrate, fertilizer grade, which formed part of the vessels' cargoes. The attention of the whole country was aroused by the disaster and the shipping industry was led to investigate the circumstance in order to avoid similar occurrences in the future. Agencies of the United States were also stirred to investigation since huge claims were presented against the government under the Federal Tort Claims Act, 28 U.S. C.A. §§ 1346, 2671-2680, on the theory that government employees had participated in the manufacture and distribution of the fertilizer which was known to be possessed of explosive properties without exercising due care for the safety of the public.
44
It has recently been held by a divided court in the Fifth Circuit In re Texas City Disaster Litigation, 197 F.2d 771, that the United States had no liability for the disaster under the Federal Tort Claims Act, as a manufacturer or distributor of a dangerous explosive, because the government's activities were within the statutory exclusion with respect to the performance of discretionary functions on the part of federal agencies or employees; but in a concurring opinion, 197 F.2d 781, the exoneration of the government was based on the finding that the explosions were caused by the too close confinement of the fertilizer on the ships with which the United States had nothing to do.
45
Two months later, on June 28, 1947, the S/S Ocean Liberty arrived at the port of Baltimore and between that date and July 5 was loaded in part with 3309 tons of the same kind of material. As described in the opinion of the court, it was stowed in the holds enveloped in heavy paper, so that all circulation of air within the mass was precluded, and a condition favorable to spontaneous combustion was created. The holds containing the Fgan were then closed and the ship sailed to New York City where additional cargo was taken on, and thence to Brest, France, where she arrived on July 23, and a part of her cargo was discharged during the first five days. During the period between July 5 and July 28, when high summer temperatures prevailed, the fertilizer remained without interior circulation of air in the tightly closed cargo spaces, and since it is a poor conductor of heat and is subject to heating under these conditions, a dangerous situation was created. The result was, as has been found by the District Judge and by this court on appeal, that on July 28 an explosion took place on the ship caused by the spontaneous combustion of the nitrate and thereby the ship and the cargo were destroyed and some lives were lost.
46
Obviously the duty to use due care to inquire into the nature and qualities of Fgan rested heavily upon the owners and agents of the ship who undertook to stow the dangerous material on board while the memory of the Texas calamity was still fresh in the national consciousness. Even under ordinary circumstances, as we have held, a shipowner must use due care to ascertain the characteristics of goods offered for shipment. See Bank Line v. Porter, 4 Cir., 25 F.2d 843, 845; The Nichiyo Maru, D.C.Md., 14 F.Supp. 727, affirmed 4 Cir., 89 F.2d 539, 543; The Richelieu, 4 Cir., 48 F.2d 497; The Ferncliff, D.C. Md., 22 F.Supp. 728, affirmed Smith v. The Ferncliff, 4 Cir., 105 F.2d 1021. But in the present instance, due care rose to the highest degree of diligence to be sure that every reasonable precaution be taken so as to avoid the loss of human life and property, for it had been tragically demonstrated that great danger lurked in the carriage of the substance and that ordinary methods of stowage were not enough. Nothing else would satisfy an ordinarily prudent man.
47
Judge Chesnut reached the conclusion, correctly I think, that the owners and agents of the ship did not make that careful investigation which the dangerous and uncertain qualities of the material required, and hence the libellants were entitled to recover. He showed that the carrier, knowing that it was dealing with a dangerous material, was careful to follow the instructions of the Coast Guard, the Baltimore Fire Department and the New York Board of Underwriters, but that these lay authorities did not know that Fgan was susceptible to spontaneous combustion, and directed the cargo to be so stowed as to actually increase the danger from this source.
48
In this respect he said (Accinanto, Ltd. v. Cosmopolitan Shipping Co., D.C.Md., 99 F.Supp. 261, 278, Finding 26): "It is clear enough on the evidence that the carrier in accepting Fgan knew that it was dealing with a very dangerous chemical. For this reason unusual care was taken in the method of stowage in certain respects. What was evidently known to the carrier was that a great danger would arise from any fire. And in this respect I find from the evidence that the recommended precautions to avoid fire in stowage were carefully complied with. Thus contact between the paper bags and the metal portions of the hold were avoided by wooden dunnage and paper dunnage thereover. And finally there was over the whole mass of the stow placed a waterproof covering. The tween deck hatches were also closed and after the loading of general cargo in New York the deck hatches in number 3 tween deck were closed. But on the other hand the bags were placed tier upon tier to the number of 20 or more and they were stowed solidly without wooden or other dunnage forming any separation either horizontally or vertically between them to give extraordinary ventilation. In effect, therefore, the stowage of the fertilizer was adequate to and did successfully prevent fire originating in the loading outside of the stow. But unfortunately the extra care and precaution in avoiding the possibility of fire from outside the fertilizer resulted in exactly those conditions which greatly increased the danger of fire from within, that is, spontaneous combustion. I find as a fact that neither the carrier nor its general agents nor its subagents, nor for that matter neither the representatives of the Coast Guard, the Fire Department or the New York Board of Underwriters, knew that Fgan was, as so stowed, subject to spontaneous combustion. In stowing it or permitting it to be stowed as they did, what they had in mind was protection against fire originating from outside. They entirely overlooked the necessity of guarding against fire from within the fertilizer itself by spontaneous combustion. The dominant issue of fact thus becomes whether the carrier or its agents could by diligent inquiry have learned of the danger of spontaneous combustion, and if so, should they have made such inquiry. I find on all the evidence that if the carrier exercised due diligence to make inquiry as to the nature and properties of Fgan it could have learned that it was susceptible to spontaneous combustion when stowed in large quantities in a very confined space without free circulation of air. In this case neither the carrier nor its general agents made any particular inquiry with regard to this feature of ship carriage of Fgan, despite the very great danger involved in the carriage of the fertilizer as so recently brought to their knowledge and attention by the Texas City disaster."
49
What was the inquiry that the carrier failed to make and what would it have disclosed? On July 1, 1947 there was extant a considerable body of scientific literature in relation to the properties of Fgan which are referred to in the opinions that have been filed in this case. The interpretation placed on this literature1 by Judge Chesnut with which I agree is set forth in his Finding 23, 99 F.Supp. 277, as follows: "I find from the evidence that the scientific data prior to July 1947 contained in various reports, treatises and text books discloses that Fgan presented a serious danger of spontaneous ignition under certain conditions. While these conditions were not precisely and definitely determined, very important considerations related to contacts with certain foreign substances especially if of carbonaceous matter, the temperature of initial storage, quantity or mass when stored, and when confined without adequate ventilation. That is to say, the danger of spontaneous combustion was increased if organic matter was mixed with Fgan, with increased temperature when stowed in large masses and that the greater the mass and the length of confinement would increase the danger; while lessening the mass with adequate ventilation would decrease the danger of spontaneous combustion."
50
In reaching this conclusion Judge Chesnut was guided by the testimony of Dr. George Bogdan Kistiakowsky, Professor of Chemistry and until recently Chairman of the Chemistry Department of Harvard University, and by the testimony of Dr. Chester S. Snell, consulting chemist and engineer of New York City. Speaking of the testimony of these scientists in Finding 20, 99 F.Supp. 275-276, the judge said:
51
"Dr. Kistiakowsky, a Harvard Professor of Chemistry who has specialized in the effects of heating of various chemicals (who also testified in the torts claims suits against the United States growing out of the Texas City disaster) testified as a witness for the libellants in this case. According to laboratory experiments made by him in 1948 he concluded that a 1% admixture of waxy coating for the granules of ammonium nitrate had the effect of increasing the tendency of ammonium nitrate fertilizer to spontaneous combustion and he adopted what he referred to as the `critical mass' theory of spontaneous combustion which is to the effect that large masses of it in close confinement, as in a ship's hold, without unusually good ventilation tend to overheating and spontaneous combustion. Dr. Kistiakowsky also said that if the percentage amount of paraffin coating was increased from 1% to 5% it would greatly minimize the tendency to self-heating. He instances the case of Nitrammon made by the DuPont Company which is 95% ammonium nitrate with 5% wax and is fairly safe and that by reason of its safety factor Nitrammon's transportation rate was much lowered. He and also Dr. Snell, another analytical chemist, testifying for the libellants, expressed the view that the scientific literature about ammonium nitrate prior to July 1, 1947 was to the effect that ammonium nitrate fertilizer was susceptible to spontaneous heating and combustion under certain conditions, among which were contact with certain metals, such as zinc, or when confined in too large areas without adequate ventilation. They referred particularly to the U. S. Ordnance Safety Manual issued in 1945 and the U. S. Department of Agriculture Circular, 719, headed `Explosibility and Fire Hazard of Ammonium Nitrate Fertilizer' issued in March 1945. Attention was called to what was said on page 22 on the subject of safety measures, that `Bearing in mind that ammonium nitrate is an explosive and supports combustion, it should be handled in such a way as to avoid conditions that may make it dangerous. More than ordinary caution should be practised along the lines indicated * * *.'
52
"Respondents called no expert scientific witnesses on their behalf."
53
In considering the availability of scientific guidance to the business world in repect to the nature of Fgan, it is a significant fact that less than a week after the Texas City explosion Dr. Kistiakowsky made an examination at Texas City of the recent disaster at the request of Montsanto Chemical Company. He also reviewed the literature on the subject and within two or three weeks thereafter, on the basis of the information so acquired, made a report to the effect that the fire on the Grand Camp was probably due to spontaneous ignition. His conclusion was based on his investigations and on repeated descriptions in the literature that ammonium nitrate reacts very rapidly with paper and other cellulose materials. In this connection he took into consideration articles published and investigations made by the Department of Agriculture showing the reaction between paper or paper-like materials and ammonium nitrate, together with the theoretical knowledge gained from scientific publications. Dr. Snell's testimony as to the conclusions to be drawn from the facts known to the scientific world on July 1, 1947 was to the same effect.
54
It is of the utmost importance to bear in mind that the scientific testimony on which the District Court relied is without contradiction in the record before his court. Although the scientific literature and reports of government agencies deal with a comparatively new article of commerce and to a great extent are technical in nature, no scientist was called by the carrier to contradict or qualify what Dr. Kistiakowsky and Dr. Snell had said. If their conclusions, based on their investigations and the literature available on July 1, 1947 were not justified, it would have been an easy and normal step in a case of this importance for the carrier to have produced experts to point out their mistakes; and the only reasonable conclusion to be borne from their failure to do so is that no scientific man could be found who would serve the purpose.
55
It is not possible to relieve the carrier in this case under the fire section of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(2)(b), which exempts the carrier and the ship from responsibility for loss resulting from fire "unless caused by the actual fault or privity of the carrier". The uncontradicted evidence shows that Cosmopolitan Shipping Company, Inc. was the general agent of Mowinckels in the United States, and that Cosmopolitan gave explicit instructions to the stevedore in Baltimore as to how the fertilizer should be stowed on the ship. See the letter of June 11, 1947 from Cosmopolitan to the Terminal Shipping Company set out in the foregoing opinion of the Court.
56
The managing agents of Mowinckels in Europe had knowledge that Fgan was to be transported on the ship because Cosmopolitan took the unusual precaution to consult them and secure their consent before accepting the shipment; and the letter of instructions was then written, since Cosmopolitan being aware of the danger, was unwilling to entrust the stowage unreservedly to the stevedore. Hence Mowinckels is not exonerated by the statute since the neglect of the managing officer or agent of the carrier is attributable to the carrier itself under the statute. Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 64 S.Ct. 15, 88 L.Ed. 30; The Pinellas, 4 Cir., 45 F.2d 174, 177.
57
The letter to which we have referred serves only to establish actual privity on Cosmopolitan's part. It not only gave explicit instructions to the stevedore, with reference to the cleaning of the compartments, the use of dunnage, the employment of a fire hose and the prohibition of smoking through the loading operations, but it specifically instructed the stevedore to load the vessel under the direction of the United States Coast Guard. In short, the stevedore was not given a free hand in stowing the cargo but was ordered to follow the directions of the agency whose failure to ascertain the nature and the quality of the fertilizer led to the destruction of the ship. There could hardly be a clearer illustration of privity on the part of the carrier. See Williams S. S. Co., Inc., v. Wilbur, 9 Cir., 9 F.2d 622; The Denali, 9 Cir., 105 F.2d 413, 112 F.2d 952; The E. Madison Hall, 4 Cir., 140 F.2d 589; American Tobacco Co. v. The Katingo Hadjipatera, D.C.N.Y., 81 F.Supp. 438.
58
The decision in Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, supra, offers no refuge to the carrier, because in that case "The negligence was that of a person employed to supervise loading to whom responsibility was properly delegated and who was qualified by experience to perform the work. No negligence or design of the owner or charterer is found." See 320 U.S. 250, 64 S.Ct. 16. The decision of the Supreme Court was confined to the question whether the Fire Statute extinguishes claims against the vessel as well as claims against the owner. The facts of the case are more fully set out in the opinion of Judge Learned Hand in the Court of Appeals, 133 F.2d 781, 784-785. He showed that the stowage of the ship was in charge of one Fegen, who was employed for the work, but was not the agent of the ship authorized to represent the owner. That relationship was held by one Okubo, who employed Fegen but "paid no further attention to the stowage." Judge Hand said that unless Okubo was personally guilty of some negligence the owner was exonerated; but no evidence of neglect on Okubo's part was found.
Notes:
1
The findings of the District Court contain references to the scientific literature and reports of government agencies mentioned in the foregoing opinion of this court — see Finding 20, 99 F.Supp. 275; Finding 23, 99 F.Supp. 276; Finding 21, 99 F.Supp. 276, refers to the Inter-Agency report of the United States of August 20, 1947, which was prepared in contemplation of the Texas City suit against the government
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325 N.E.2d 214 (1975)
William D. RELEFORD, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2-174A29.
Court of Appeals of Indiana, First District.
April 1, 1975.
*215 Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
LOWDERMILK, Judge.
In a two count indictment filed February 16, 1971, defendant-appellant (Releford) was charged with possessing and selling heroin in violation of the 1935 Narcotic Act (as amended). After an initial plea of not guilty on March 24, 1971, Releford entered a plea of guilty to Count I of the indictment (possession) and requested a jury trial as to Count II (sale).
Trial was begun on November 15, 1971, and Releford was subsequently found guilty as charged. Judgment was entered on the verdict and Releford was sentenced under Count II to a prison term of not less than five years nor more than twenty years.
The facts most favorable to the State disclose that pursuant to information received *216 from an informer, Officer Michael Grable of the Indianapolis Police Department made arrangements to make a buy of narcotics from Releford. Upon approaching Releford, Grable was asked if he was the one who wanted the "stuff" and Releford entered Grable's car and directed Grable and the informant to an apartment. Grable supplied Releford with $10.00, Releford left the car in which they were riding, and returned several minutes later, stating that he had the "stuff". The trio together returned to Releford's home and as Releford left the vehicle Grable observed him place two yellow capsules on the seat of the car. Releford was at that time arrested for narcotics violation.
Releford's argument on appeal is stated as follows:
"Addressed to the argument that the court erred in refusing to grant the defendant's motion for a finding of not guilty both at the conclusion of the state's evidence and at the conclusion of defendant's evidence; and that the evidence presented at trial was not sufficient to sustain the jury's verdict; i.e. the decision of the jury was contrary to law."
We note, however, that the greater portion of appellant's brief is dedicated to discussion of the defense of entrapment. However, for the reason stated below, we need not consider appellant's arguments pertaining to this defense.
The defense of entrapment is not made a part of any of Releford's pleadings;[1] entrapment was not the basis for any objections to the admission of evidence; entrapment was not raised in a pre-trial motion to suppress evidence and this defense is not raised in any manner in the motion to correct errors. The only reference to the defense of entrapment is contained in Releford's only tendered instruction which was read to the jury without objection from the State. Inasmuch as Releford failed to adequately raise and preserve the issue of entrapment prior to his argument presented here on appeal we must conclude that no error has been preserved for our consideration. Ervin v. State (1972), Ind. App., 289 N.E.2d 131, 134; Ind.Rules of Procedure, Trial Rule 59(B) and Trial Rule 59(G), which is, in part, as follows:
"(G) Motion to correct error is condition to appeal.... Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court... ."
Releford, however, asks this court to consider his entrapment argument because it is "fundamental". Releford cites the case of Cheeks v. State (1973), Ind. App., 292 N.E.2d 852 in support of this argument. We do not find Cheeks supportive of appellant's argument. The court in Cheeks did not hold that the defense of entrapment was so fundamental that usual appellate procedures could be by-passed. Rather, the court considered the entrapment issue "in passing" even though it was not mentioned in the motion to correct errors.
The doctrine of "fundamental" or "plain" error requires that a substantial infringement of defendant's right to due process be shown. The error must be such that the defendant could not have had a fair trial. Ervin v. State (1973), Ind. App., 303 N.E.2d 835; Bennett v. State (1973), Ind. App., 304 N.E.2d 827. It is our opinion that Releford's defense of entrapment is not so "fundamental" that we may consider it on appeal when the issue has not been preserved at trial or in the motion to correct errors.
*217 A consideration of the entrapment issue would amount to an abolishment of T.R. 59(B) and T.R. 59(G).
Therefore, the only issues for us to consider are:
(1) Whether it was error for the trial court to overrule Releford's motions for directed verdict; and
(2) Whether the evidence was sufficient to sustain the conviction.
It is the law in Indiana that:
"`A directed verdict is only proper where there is a total absence of evidence on some essential issue required to convict, or where the evidence is without conflict and susceptible to only one inference in favor of the accused. Davis v. State (1968), 251 Ind. 133, 239 N.E.2d 601; Hardin v. State (1964), 246 Ind. 23, 201 N.E.2d 333, 202 N.E.2d 164.'
In Holliday v. State (1970), 254 Ind. 85, 257 N.E.2d 679, in passing on the requirements of a directed verdict, the court said:
`To avoid a directed verdict the State merely has to make out a prima facie case.'"
State v. Overmyer (1973), Ind. App., 294 N.E.2d 172, 173.
It is our opinion that the facts set out above are sufficient to establish a prima facie case for the sale of heroin. Therefore, the overruling of Releford's motions for a directed verdict was not error.
In reviewing the sufficiency of the evidence we will not determine credibility of witnesses nor weigh the evidence. We must uphold the conviction if there is substantive evidence of probative value from which the jury could infer guilt. Skipworth v. State (1974), Ind. App., 318 N.E.2d 370.
Releford argues that he was convicted on the uncorroborated testimony of Officer Grable. Further, Releford contends that the laboratory tests as to the substance seized were incomplete and inconclusive and that it was possible that the substance contained no more than 5% heroin.
It is the law in this State that a conviction may rest on the uncorroborated testimony of a single witness. Hiner v. State (1929), 89 Ind. App. 152, 166 N.E. 20; Winfield v. State (1967), 248 Ind. 95, 223 N.E.2d 576; Bryant v. State (1973), Ind. App., 299 N.E.2d 200.
The testimony of Officer Grable established that Releford stated to Grable that he would have to "go get" the drugs; that Releford accompanied Grable and the informer in Grable's car and gave directions to the apartment where the drugs were apparently purchased; that Releford stated upon re-entering the car that he had the drugs and that Grable observed Releford lay two capsules on the seat of the car.
Finally, as to the tests conducted on the substance which was seized, we note that there were several preliminary tests performed and four further tests, which were positive as to the presence of heroin. The fact that the percentage of heroin was or could have been very low does not alter the fact that the tests were conlcusive as to the presence of heroin and that the substance seized was possessed and sold by Releford.
Based on the above facts it is our opinion that the evidence was sufficient to sustain the verdict and that the verdict and judgment were not contrary to law.
Finding no reversible error the judgment is affirmed.
ROBERTSON, C.J., and LYBROOK, J., concur.
NOTES
[1] In the case of Ervin v. State (1972), Ind. App., 289 N.E.2d 131, this court held that entrapment need not be pleaded separately as a defense.
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 269 MAL 2018
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
SEZAN PRUDENCE HESSOU, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 28th day of August, 2018, the Petition for Allowance of Appeal is
DENIED.
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492 Pa. 457 (1981)
424 A.2d 1280
In re Adoption of M.M., A Minor.
Appeal of J.M. and C.B.
Supreme Court of Pennsylvania.
Argued October 20, 1980.
Decided February 4, 1981.
*458 *459 Frank J. Bolock, Jr., Scranton, for appellant.
George Houck, Scranton, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION
NIX, Justice.
This is an appeal from a final order of the Orphans' Court Division of the Court of Common Pleas of Lackawanna County terminating the parental rights of appellants, J.M. and C.B., with respect to their daughter, M.M. The instant case raises the question of whether the inability to provide proper support for an infant due to poverty falls within the language of Section 311(1) or (2) of the Adoption Act, Act of July 24, 1970, P.L. 620, Section 311(1), (2), 1 P.S. Section 311(1), (2) (Supp. 1980-81).
Appellants, J.M. and C.B. are the natural parents of M. M., born September 4, 1977. The child was taken by the Lackawanna County Bureau of Childrens Services on or about September 13, 1977 and has since resided in foster care.
The Lackawanna County Bureau of Childrens Services (hereinafter B.C.S.) became involved with M.M. on September 12, 1977 when she was eight days old. Nancy Johnson, a caseworker for the B.C.S., testified that she received a complaint from the Childline in Harrisburg indicating that a child had gone home to live with the mother and the mother was not capable of providing care, that she had no proper *460 supplies or provisions and was living in unfit conditions. In response to this complaint, Ms. Johnson appeared at appellants' home during the night of September 12, 1977. The mother, who appeared very frightened refused to admit the caseworker.
Ms. Johnson returned to appellants' home later that night with a Scranton police officer. Ms. Johnson made an inspection of the premises and decided to request temporary custody of the baby because she was of the opinion that the child's parents did not have the proper supports needed. The caseworker seized the child from the home and placed her with the B.C.S.
Our scope of review is limited to determining whether the court's decree is supported by competent evidence. In Re Adoption of Baby Boy P., 479 Pa. 138, 387 A.2d 873 (1978); In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978). The adjudication of the Orphans' Court will not be disturbed if "the record is free from legal error and . . . if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence." In Re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977); Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971).
The record in the instant case does not support the determination of the Orphans' Court that the parents evidenced a settled purpose of relinquishing their parental claim, that they refused to perform their parental duties or that the conditions will not be remedied by the parents.
Section 311(1) provides:
The rights of a parent in regard to a child may be terminated. . ., on the ground that: (1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
Under this provision, it must be established by a preponderance of the evidence that for a period of at least six months *461 appellants either evidenced a settled purpose of relinquishing their parental claim or that they have refused or failed to perform their parental duties. Adoption of Farabelli, 460 Pa. 423, 383 A.2d 846 (1975). The question of whether a parent has evidenced a settled purpose of relinquishing parental claim to a child must be analyzed in relation to the particular circumstances of the case. In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In Re Burns, supra.
In the instant case appellants have not evidenced a settled purpose of relinquishing their parental claim. M.M. was taken by the B.C.S. on September 12, 1977. Realistically, the release of M.M. to the B.C.S. cannot be considered voluntary. The mother evidenced her wish not to be disturbed by her initial refusal to admit Ms. Johnson. Admission was gained only after Ms. Johnson arrived escorted by a police officer thereby suggesting some official authority for the request. Clearly, coercive aspects of the initial entry are evident. To suggest that these facts constituted a voluntary surrender of custody by the natural mother would strain credulity.
Two days after M.M. was taken from her parents on September 14, 1977 Richard Powell, another caseworker with the B.C.S., visited the parents and requested consent for custody of the child. The mother was told that if she refused voluntary custody she would be required to face court action. Again, it was obvious that the threat of the authority of the State was the motivating factor in causing the parents to decline to resist the wishes of the agency. We are not unmindful of the added fear engendered in the deprived and defenseless by a display of authority.
The testimony of Mr. Powell clearly demonstrated the interest and concern of the mother and her expressed desire to have the child returned to the family. He testified that both parents had visited with the baby and repeatedly informed him of their attempts to satisfy the requirements for the return of their child. Between September 14, 1977 and December 12, 1977, out of nine contacts between the B.C.S. and the parents, six were initiated by the parents. *462 Obviously these contacts reflect an intense interest in both the welfare of the child and in becoming reunited with the infant.
The testimony of Paula Friedman, yet another caseworker, further supports the keen interest of the parents in the welfare of the child. Ms. Friedman testified that there were at least thirteen contacts between the caseworker and the parents, of which four were initiated by the parents. At the mother's request, the parents visited with the baby on three occasions. During this period, the parents again attempted to satisfy the "goals" established by the B.C.S.
On January 1, 1979 Barbara Manley, a fourth caseworker, assumed responsibility for handling the case of M.M. From January 1, 1979 until May 1979, when the B.C.S. refused to allow visitation of the infant and decided to file a petition for the involuntary termination of the parents' rights, the parents repeatedly asked for the return of their child and persisted in their efforts to satisfy the B.C.S.'s requirements. During this period there were six contacts between the parents and the caseworker. The parents initiated four of these contacts.
Judge Penetar states in his opinion that "(t)he evidence in this case overwhelmingly shows that J.M., mother, never consistently demonstrated parental love, protection and concern," and "(i)n this case, we find that C.B. has evidenced a settled purpose of relinquishing parental claim, and has refused or failed to perform parental duties."
We find, in reviewing the record, that appellants were most concerned about the welfare of their child, and in fact were affirmatively taking steps to have her returned. Nowhere in the record was it shown that appellants evidenced an "affirmative indication of a positive intent" to sever parental relations. Adoption of McAhren, 460 Pa. 63, 70, 331 A.2d 419, 423 (1975); Sheaffer Appeal, 452 Pa. 165, 170, 305 A.2d 36, 38 (1973). On the contrary, the parents repeatedly contacted the agency seeking the return of their daughter. The record shows there were ten contacts between *463 the father and the caseworkers throughout this period. Two of these contacts were initiated by the father to inform the agency that certain goals had been satisfied. The mother had seventeen contacts with the agency during the same period. It is well established that in view of the irreversible nature and serious emotional impact of the involuntary termination of parental rights, such action is not authorized unless a preponderance of the evidence clearly warrants it. Adoption of McAhren, supra.
The record is equally inadequate to support the theory that appellants failed or refused to provide parental care during the statutory period. This portion of Section 311(1) requires that a parent exert himself to take and maintain a place of importance in the child's life. As a corollary, we have required that a parent affirmatively demonstrate his love, protection and support of his child and to make every reasonable effort to maintain communication and association with that child. Adoption of Farabelli, supra; Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). In the instant case, in addition to the frequent contacts and visits by the parents, there were several attempts by them to satisfy the requirements imposed by the B.C.S. On November 12, 1977, the father informed Mr. Powell that one of the goals had been satisfied. Upon being informed that more had to be done before the child would be returned, the parents moved into another apartment, bought a crib and birthday present for their baby. Efforts on the part of the parents to obtain another apartment, a crib and a birthday present indicate a willingness to provide a supportive environment for the infant within their ability to economically support their baby. Under the existing circumstances, the record establishes appellants' love and affection for their child and their actions fully comport with the requirement that they affirmatively demonstrate that affection.
Further, the parents repeatedly attempted to satisfy the B.C.S.'s "goals" and to remedy the situation, as required by Section 311(2).
Section 311(2) provides that the rights of parents may be terminated where:
*464 The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent;. . . .
On September 7, 1978, Ms. Friedman was notified by the parents that they had moved and that they had a crib and birthday gift for the baby. When the caseworker finally contacted appellants on October 5, 1978, the parents requested custody of M.M. or weekend visits. They were told this could not be done. Despite their improvement and the fact that they had remedied the situation, the B.C.S. still refused the parents' request to allow extended visitation or custody. Ms. Friedman testified that after this meeting she did not contact the parents because she and her supervisor had decided to file an involuntary termination petition.
The only basis for suggesting the incapacity of the natural parents in the case is their limited economic potential. We find nothing in the Adoption Act that would suggest a legislative intention to deprive the natural parents of the experience of childhood solely on the basis of their impecunious situation. Absent the showing that the parents' financial situation was self inflicted, there is no basis for state intervention in such a sacred personal relationship.
In summary, the repeated efforts and requests of the parents for the return of their baby vitiates any possible conclusion that they intended to relinquish their parental rights.
The conduct of the B.C.S. was shocking. The infant was only eight days old when removed and all subsequent efforts made by the parents to see their child were deliberately and successfully thwarted by the B.C.S. To interpret this factual setting as comprising the intent to relinquish parental rights would be a travesty. Nor can it be said that there was an affirmative failure of the parents to support the infant. The totality of the circumstances establish that the parents wanted to remain a positive force in their baby's *465 life, but were thwarted in their efforts. In Re D.J.Y., supra, 487 Pa. at 131, 408 A.2d at 1390, Adoption of S.H., 476 Pa. 608, 610, 383 A.2d 529, 530 (1978).
While the parents were exceedingly poor, there is no evidence indicating a lack of love, desire for and responsibility to the infant. Nor was there any evidence to suggest their financial situation was of their own making.
Accordingly, the decree involuntarily terminated the parental rights of J.M. and C.B. is hereby reversed.
FLAHERTY, J., filed a concurring opinion.
O'BRIEN, C.J., and ROBERTS, J., concurred in the result.
FLAHERTY, Justice, concurring.
I join in the majority opinion. History would have taken a different course had Jesus Christ been born in Lackawanna County.
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438 F.2d 433
C. R. GROVE, Appellant in No. 18756, Trustee, et al. and Altoona Clay Products, Inc., a corporation,v.DUN & BRADSTREET, INC., a corporation.Appeal of ALTOONA CLAY PRODUCTS, INC., a corporation, in No. 18755.
No. 18755.
No. 18756.
United States Court of Appeals, Third Circuit.
Argued October 30, 1970.
Decided February 8, 1971.
As Amended on Denial of Rehearing March 15, 1971.
John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, Pa., for appellant, Altoona Clay Products, Inc. (Joseph A. Williams, Pittsburgh, Pa., on the brief) for appellants.
Edmund S. Ruffin, III, Thorp, Reed & Armstrong, Pittsburgh, Pa. (Clyde A. Armstrong, Pittsburgh, Pa., on the brief) for appellee.
Before FORMAN, SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
1
This protracted libel action is again before us requiring that we determine whether the constitutional standard first enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), extends to private subscription credit reports and whether there was sufficient evidence to support the jury's verdict. Following a $110,000 verdict for the plaintiff, the district court first granted defendant's motion for a new trial and subsequently entered judgment n. o. v. in favor of the defendant. This appeal followed.
2
Plaintiff, a Pennsylvania corporation engaged in the brokerage of bricks and tile, brought this diversity action against Dun & Bradstreet, a mercantile agency which supplies credit reports to its subscribers. Alleging libel of its business reputation, plaintiff sought damages emanating from the issuance of a false credit report in 1963. At the first trial plaintiff was limited to proof of special damages and a verdict was directed for defendant, Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 246 F.Supp. 419 (W.D.Pa.1965). This court reversed, 367 F.2d 625 (3 Cir. 1966), holding that under Pennsylvania law the publication was libel per se and hence actionable without proof of special damages, but that proof of special damages should, in any event, be submitted to the jury. On remand, the jury awarded only general damages in the amount of $110,000. In a lengthy opinion, the trial court denied defendant's motion for judgment n. o. v., but granted a new trial, concluding that proof was lacking that (1) the recipients of the report understood its libelous nature; (2) plaintiff's loss of credit was a direct and proximate result of the erroneous publication, and (3) damages were more than nominal, 286 F.Supp. 899 (W.D.Pa. 1968). Thereafter, the court, in light of subsequent cases involving the Times doctrine, including this court's decision in Rosenbloom v. Metromedia, Inc., 415 F.2d 892 (3 Cir. 1969), cert. granted 397 U.S. 904, 90 S.Ct. 917, 25 L.Ed.2d 85 (1970), sua sponte vacated its new trial order and entered judgment for the defendant "to secure an appealable final order." The court believed it "proper * * * that the serious constitutional question involved here should be resolved before we embark upon a trial of the issues which may be a useless procedure under our view of the controlling constitutional standard."
I.
3
Defendant periodically issued reports on the plaintiff, which was itself a subscriber to defendant's services. A report issued in January, 1963, included, in addition to the routine assessment of plaintiff's assets, liabilities, and overall rating,1 a notation that a confession of judgment in the penal sum of $60,000 had been entered against it. In fact, the judgment had been entered against "Altoona Clay Products Company, Inc.," a predecessor to plaintiff's business, but nonetheless a separate corporate entity. Defendant's investigative agent had failed to note the distinction and the erroneous publication resulted. The standard by which this conduct is to be judged is indeed critical to plaintiff's action: clearly no test requiring "actual malice" can be satisfied by these operative facts.2
4
New York Times v. Sullivan concluded that "the constitutional guarantees require * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279, 84 S.Ct. at 726 (1964). The Times rule "preempted the law of libel as it related to public officials, making the outcome of such a suit dependent not upon state constitutions, statutes, and decisions, but upon the First Amendment to the Constitution of the United States and its interpretation by the Supreme Court." Cepeda v. Cowles Broadcasting, Inc., 392 F.2d 417, 420 (9 Cir. 1968).
5
In Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1965), the Supreme Court held that "[t]he guarantees for speech and press are not the preserve of political expression or comment upon public affairs" and declared the constitutional privilege to "embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." In the companion cases of Curtis Publishing v. Butts (Associated Press v. Walker), 388 U.S. 130, 87 S.Ct. 1975, 18 L. Ed.2d 1094 (1966), these protections were extended to publications concerning "public figures." The burden of demonstrating "actual malice" was thus no longer limited to plaintiffs holding "a position in government [which] has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it." Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1965). Thus those who thrust themselves, either through political action or other activity which invokes public interest or concern, into the public limelight, may no longer find redress in the courts for alleged defamations occurring in the media, without at least a showing of "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Curtis Publishing Co. v. Butts, supra; Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543, remanded on other grounds, 387 U.S. 239, 87 S.Ct. 1706, 18 L.Ed.2d 744 (1966).
6
Noting in Butts, supra, 388 U.S. at 152, 87 S.Ct. at 1990, "the basic theory of libel has not changed," and crystallizing the competing concerns of the First Amendment and "society's `pervasive and strong interest in preventing and redressing attacks on reputation,' Rosenblatt v. Baer, supra, 385 U.S. at 86, 86 S.Ct. 669," Justice Harlan cautioned, however, that
7
to take the rule found appropriate in New York Times to resolve the `tension' between the particular constitutional interest there involved and the interests of personal reputation and press responsibility * * * as being applicable throughout the realm of the broader constitutional interest, would be to attribute to this aspect of New York Times an unintended inexorability at the threshold of this new constitutional development. In Time, Inc. v. Hill, supra [385 U.S.] at 390, [87 S. Ct. 534], we counseled against `blind application of New York Times v. Sullivan' and considered `the factors which arise in the particular context.' Here we must undertake a parallel evaluation. 388 U.S. at 148, 87 S.Ct. at 1987.
8
To extend a privilege to defendant's publication greater than that afforded by traditional Pennsylvania libel law, then, we must determine if the facts before us involve a "public figure" or an issue of "real public interest," Rosenbloom v. Metromedia, supra, 415 F.2d at 895.
9
While we do not here decide whether a corporation is capable of status as a public figure, we hold first that plaintiff is not a public figure within the meaning accorded that term by the foregoing Supreme Court decisions. Not unaware of the difficulty in characterizing plaintiff as a public figure, defendant strenuously urges, therefore, that the issue here is one of legitimate public concern, rendering "the absence of a public figure of [no] controlling importance." Rosenbloom, supra, 415 F.2d 892 at 896.
10
Defendant asserts that plaintiff's credit is a "matter of interest to a segment of the public, viz., its suppliers, creditors, architects and public contractors." In support of this contention, defendant notes that plaintiff is a corporation chartered to do business by the Commonwealth of Pennsylvania, and that, in furthering the purposes of this corporate charter, plaintiff periodically involves itself in public projects, including sewerage treatment plants, public school buildings, post offices, public utilities, shopping centers and churches.
11
We cannot accept the theory that plaintiff's business or credit standing is a matter of "real public interest." It may generally be true that "the modern business corporation by virtue of its pervasive influence on the political, economic, and social aspects of American life, has necessarily become a subject of public concern to the extent that the critics of its operations and behavior must enjoy constitutional protection for erroneous statements made without actual malice."3 But those cases which have required that corporate plaintiffs meet the more difficult constitutional quantum of proof have all involved corporations engaged in activities of real public interest, and are grounded in that distinction.4 We are not here dealing with a publication or broadcast alleging, for example, that plaintiff caused substandard building material to be used in these projects. Such operative facts might constitute a matter of grave public interest. Our research discloses no case, however, which would support the application of the more rigorous standard to the covert reportage of the credit standing of a small brick and tile brokerage firm, and we decline to do so now.
12
In the view we take of this case, moreover, there is a more fundamental flaw in defendant's attempt to clothe itself in the protective cloak of the Times standard. Based on a thorough review of the cases interpreting and applying the Times doctrine, we hold that the defendant's publication is not a medium entitled to that extended constitutional protection. We reaffirm our conclusion in Rosenbloom that "no rational distinction can be made between radio and television on the one hand and the press on the other in affording the constitutional protection contemplated by the First Amendment," 415 F.2d 892 at 895. We find such a distinction patent, however, between a publication which disseminates news for public consumption and one which provides specialized information to a selective, finite audience. To be sure, defendant's publication is not held out for public consumption. By contractual stipulation, each subscriber agrees that
13
[a]ll information whether printed, written or oral, submitted in answer to regular or special inquiry or voluntarily furnished to the subscriber by Dun & Bradstreet, Inc., is for the exclusive use of the subscriber. Such information shall be held in strict confidence and shall never be revealed or made accessible in any manner whatever to the persons reported upon or to any others. (Emphasis supplied.)
14
As the court noted in denying a motion to dismiss in Packaging Industries, Inc. v. Dun & Bradstreet, 67 Civil 4638 (S.D.N.Y.1969), a case strikingly similar to this action:
15
[T]his defendant, for a fee, presents private clients with a confidential report. It comes before this court in a situation quite unlike that of the defendants in Sullivan and Butts. It has not assumed the role of informing the public at large; pursuant to its own requirement confidentiality must be maintained. The application of a special privilege to this case would be an extension well beyond the limits previously established.
16
The confidential nature of these reports further underscores the inapplicability of the Times doctrine. In the Butts case, Justice Harlan characterized Times as resting on "the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest government policy," 388 U.S. 130 at 153, 87 S.Ct. 1975, at 1990. Justice Harlan was persuaded that Mr. Butts and General Walker "both * * * had sufficient access to the means of counterargument to be able `to expose through discussion the falsehood and fallacies' of the defamatory statements." Id. at 155, 87 S.Ct. at 1991. Plaintiff here is denied that opportunity to respond to such false assertions both because it lacks the very access to the medium which Times and its progeny assumed, and for the more pernicious reason that the source or nature of the assertions may never be exposed.
17
Nor can defendant's reports be characterized as opinion, comment, or criticism. Their efficacy and value depend on their factual nature, and though there be a conditional privilege under the law of most states regarding the dissemination of news and opinion, some three-fourths of the courts which have recognized the privilege delineate a distinction in the case of false assertion of fact.5
18
We find that the lower court was eminently correct in its broad construction of the concept of "real public interest"; yet its mistaken reliance on Rosenbloom merely emphasizes why the standards applied there are inapposite here:
19
"One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. * * * `Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L. Ed. 1093." Time, Inc. v. Hill, 385 U. S. 374, 388, 87 S.Ct. 534, 542, 17 L. Ed.2d 456, 415 F.2d at 895.
20
One can no more merely "pick up" one of defendant's reports, even when he is himself its subject, than he can participate in "freedom of discussion" about its contents.
21
We hold, therefore, that the doctrine of New York Times v. Sullivan does not extend to private subscription credit reports, and that any allegations of defamation concerning such reports are properly subject to the libel laws of the several states.
II.
22
The district court directed that its original order of July 16, 1968, granting defendant's Motion for a New Trial, take effect only in the event that we reverse the February 4, 1970, order granting judgment n. o. v. for the defendant.
23
It is settled in this circuit that motions for new trial are addressed to the sound discretion of the district court and, ordinarily, its disposition of such motion will not be disturbed, Wagner v. Pennsylvania R. Co., 282 F.2d 392 (3 Cir. 1960), except in exceptional cases. Silverii v. Kramer, 314 F.2d 407 (3 Cir. 1963). In Lind v. Schenley Industries, 278 F.2d 79, 90 (3 Cir. 1960), the trial court had entered judgment for defendant and granted a conditional new trial. In reversing, and finding that the district court had abused its discretion in conditionally granting the new trial motion, Judge, then Chief Judge, Biggs stated: "the trial judge in negating the jury's verdict has, to some extent at least, substituted his judgment of the facts and the credibility of the witnesses for that of the jury"; in this situation, "[i]t then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision" than when the issue is not the weight of the evidence but only trial error. See also Lewin v. Metropolitan Life Insurance Co., 394 F.2d 608 (3 Cir. 1968). Because the weight of the evidence was the issue critical to the district court's conditional grant of a new trial in the case before us, we shall "exercise a closer degree of scrutiny" in determining whether there has been an abuse of discretion.
24
Although defendant continues to raise several arguments regarding the issues of actionability, libel per se as distinguished from libel per quod, the defamatory nature of the report, malice, plaintiff's solvency, and contributory negligence, each was disposed of by this court in our earlier opinion in this case, 367 F.2d 652 (1966).6 We will discuss, therefore, only the question of the sufficiency of plaintiff's evidence to support the damage award of $110,000.7
25
Plaintiff was not financially stable in the years immediately prior to the publication of the defamatory report. Gross sales had declined every year from 1958 to 1963. Losses and liabilities mounted. The limited assets of this closed corporation were of dubious value. From this evidence the district court concluded that no more than nominal damages were possible. We disagree. A business in an economically precarious position may well suffer greater damages as a result of the issuance of a defamatory credit report than would a financially sound corporation whose credit would not otherwise be open to question.
26
Severe credit restrictions were imposed upon plaintiff by its suppliers which foreclosed from plaintiff's reach several anticipated lucrative contracts. Suppliers Glen Gery Shale Brick Corporation, Metropolitan Brick Company, Alliance Clay Products Company, and Central Commercial Company all rescinded, within the three months immediately following the issuance of the report, previously unrestricted credit standing, or insisted, for the first time, that there be strict compliance with previously unenforced credit terms. Credit ceilings of $5,000 were established, with 60, or, in some cases, only 30 days to remit. Glen Gery alone provided approximately 40% of plaintiff's brick supply. Three weeks after restricting plaintiff's credit, Central Commercial referred specifically to the report and the judgment in a letter to plaintiff.
27
Restriction of credit is damaging to any business. But the modus operandi of plaintiff, a brokerage firm, rendered such limitations fatal. T. D. Pegnetter, plaintiff's president, testified that
28
because I was doing large construction jobs, servicing large jobs out of that plant, and * * * the contractors were slow, we had a slow turnover of accounts receivable, so naturally our accounts payable would get sixty to ninety to a hundred twenty days behind.
29
Q. And were you in a position to pay off the company such as Glen Gery, or were you required to rely upon credit?
30
A. I had — the whole business was — I had to rely on credit, not just Glen Gery, but the whole business had to rely directly on credit.
31
Pegnetter testified that Quaker Sales Company, which had granted an exclusive distributorship to plaintiff terminated its business relationship with plaintiff in reliance on the report. Pegnetter testified further that Elvin Overdorff, Jr., president of Quaker Sales, accused him of lying when he repeatedly denied the outstanding judgment. It was through Overdorff that Pegnetter first learned of the existence of the report. Overdorff demanded all the cash plaintiff had on hand and a note payable at $500 per month for the balance of the $11,000 which plaintiff owed Quaker.
32
Correction of the report by defendant did not restore the various creditors' confidence in plaintiff; the 30 and 60-day, $5,000 credit lines were retained. Plaintiff testified as to several major contracts which it "missed because of the credit restrictions."8 Forced into receivership in early 1964, plaintiff was deprived of future profits. Moreover, plaintiff introduced testimony that sale of the company's tangible assets by the receiver resulted in a $26,000 loss from fair market value.
33
The jury's award is not rendered fatal because it exceeds the demonstrated substantial specific damages reflecting a decrease in trade or loss of profits. Indeed, the court charged that less tangible injuries were equally compensable:
34
the items which are considered in support of such a claim of general damages are the damages to its business reputation, the decrease in trade or business suffered, loss of profits, and the general pecuniary harm which would normally result from such a publication.
35
Whether the aggregate of plaintiff's damages should have reached $110,000 is not within our province — nor that of the district court — to determine. Pennsylvania statutorily vests the jury with that power of evaluation where negligence or malice is shown in civil libel cases.9 While it is true that data supporting all the items within the penumbra of general damages is not identifiable, this is not unusual in cases predicated on negligence. For example, in the run-of-the-mill personal injuries case, the recoverable items with respect to loss of wages, past medical expenses, and loss of future earnings reduced to present worth are easily discernible. The more abstract damages reflecting pain, suffering, and inconvenience — past, present and future — are generally not reflected with mathematical precision in the record. And in many cases an analysis of jury awards discloses that the bulk of the verdict is attributable to this particular item.
36
Thus, in the instant case, the jury had for its consideration, in addition to loss of trade and profits, the damage to appellant's business reputation and "the general pecuniary harm which would normally flow from such a publication." The inclusion of these items for jury consideration was not questioned at trial or on appeal. "[A]s this Circuit has frequently reiterated, while an award may be high, it should stand if there is ample evidence to justify it. It is not [the] prerogative [of the court] to arbitrarily substitute [its] judgment for that of the jury." Fabrizi v. Griffin, 162 F.Supp. 276, 279 (W.D.Pa.1958).
37
On the basis of all the evidence, we conclude that the damage award was not without sufficient support.
38
In light of our prior opinion in this case, we find no merit in defendant's assertion that it was error to admit the testimony of two expert witnesses to show how the report was received.10 Finally, we reject defendant's contention that plaintiff's summation was prejudicial; moreover, because no exception was taken until motion was made for a new trial, the objection was, in any event, untimely. Giffin v. Ensign, 234 F.2d 307, 316 (3 Cir. 1956); Fabrizi v. Griffin, supra.
39
Accordingly, the order of the District Court filed February 4, 1970, will be reversed, including that portion of the said order which granted a conditional new trial, and the cause will be remanded for entry of judgment in favor of plaintiff in accordance with the verdict of the jury.
Notes:
1
All of defendant's subscribers are furnished a rating card which approximates the overall financial strength the subject is deemed to enjoy. Plaintiff's rating was E-3½, which imputed a strength of $20,000-$35,000, with limited credit standing
2
Defendant presses the argument that the precise behavior before us — investigatory error — has been deemed constitutionally insufficient to support an action governed byTimes and subsequent cases. We do not quarrel with that statement. See New York Times, supra, 286-288, 292, 84 S.Ct. 710; Garrison v. Louisiana, 379 U.S. 64, 73-75, 79, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). This court has held that "investigatory failures alone are insufficient to show recklessness on the part of a newspaper". Baldine v. Sharon Herald, 391 F.2d 703, 706 (3 Cir. 1968). We recognize, therefore, that if the governing standard in this action be the Times rule, plaintiff's case must fail.
3
Libel and the Corporate Plaintiff, 69 Col.L.Rev. 1496, 1505 (1969)
4
United Medical Laboratories v. C. B. S., 404 F.2d 706, 711 (9 Cir. 1968):
The crucial question here then is whether First Amendment immunity can properly be regarded as extending to disclosure and discussion of professional practices and conditions in the health area involved, so that those engaged in the particular field who may claim to have been stained by such a publication will be subject, in any seeking of redress, to application of the federal standard for defeasance of the Amendment immunity, instead of to the standards of state libel law for recovery.
BonAir Hotel, Inc. v. Time, Inc., 295 F.Supp. 704, 708 (S.D.Ga.1969):
[I]n bringing to light the exorbitant prices charged for accommodations during the [Masters'] Tournament the article possessed a valid public interest in its subject-matter which, apart from any other consideration, brings defendants within the constitutionally protected area of free expression.
See also Arizona Biochemical Co. v. Hearst Corp., 302 F.Supp. 412 (S.D.N.Y. 1969); All Diet Food Distributors v. Time, Inc., 56 Misc.2d 821, 290 N.Y.S.2d 445 (Sup.Ct.1967).
5
Prosser on Torts, 814 (3rd Ed.)
6
After a thorough review of the applicable Pennsylvania law, this court, speaking through then Chief Judge Staley, concluded:
The publication in question being defamatory on its face and of such a nature that proof of special damages is unnecessary, the plaintiff is entitled to recover unless the defendant can establish either the defense of truth or privilege. Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. at 317. 182 A.2d at 753, 367 F.2d 625, 631.
As we noted, though there be a privilege under Pennsylvania law, "want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege," O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 51 A.2d 775, 367 F.2d 625, 631. The court below charged the jury with these very words. We remanded this case for a jury determination of whether defendant's agent was negligent in his investigation. Since defendant raises no challenge to the court's instruction as to what constitutes negligence under Pennsylvania law, we accept plaintiff's argument that "these instructions fairly stated the law and there is no reason to believe that the jury did not follow and apply them to the testimony in the case, when it awarded plaintiff a verdict of $110,000 for general damages." See citations in our earlier opinion, 367 F.2d 625, 631-632.
7
Chief Judge Staley also concluded:
Since this case will be remanded for a new trial, we must point out that we cannot concur in the district court's conclusion that plaintiff's proof on the issue of damages was insufficient. Though plaintiff's proof was far from conclusive [partly due to the improper exclusion of testimony by plaintiff's president], in light of the Pennsylvania cases, especially those cited by the district court, we believe it was sufficient for the jury's consideration. Cf. Dun & Bradstreet, Inc. v. Nicklaus, 340 F.2d 882 (C.A.8, 1965).
Since the proofs were largely the same at the two trials, we might well view our prior holding as dispositive of the insufficiency claim as well. Nevertheless, if only because of the disparity of results between the two trials, we choose to review briefly the sufficiency question again.
8
Plaintiff adduced testimony concerning ten specific projects in which the aggregated anticipated profits, calculated at 15% of the contract sale prices, would total at least $19,500
9
12 Purd.Stat.Anno. § 1583:
In all civil actions for libel, no damages shall be recovered unless it is established to the satisfaction of the jury, under the direction of the court as in other cases, that the publication has been maliciously or negligently made, but where malice or negligence appears, such damages may be awarded as the jury shall deem proper.
10
See note 6,supra. In any event, we find that the admission of this testimony was not error. Interpreting credit reports may be so esoteric as to be beyond "the range of ordinary training, knowledge, intelligence and experience," Commonwealth v. Kaufman, 182 Pa.Super. 197, 203, 126 A.2d 758, 761 (1956), to render expert testimony on the subject admissible. And "the fact that the opinions [may be] in reference to the ultimate issue to be decided by the jury does not bar them, if otherwise admissible: Cooper v. Metropolitan Life, 323 Pa. 295, 302-303, 186 A. 125," Lott v. Peoples Nat. Gas Co., 324 Pa. 517, 527, 188 A. 582, 586 (1937).
| {
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424 F.Supp. 402 (1976)
Benjamin SANABRIA, Plaintiff,
v.
The VILLAGE OF MONTICELLO, a Municipal Subdivision of the State of New York, et al., Defendants.
No. 75 Civ. 1070 (JMC).
United States District Court, S. D. New York.
December 23, 1976.
*403 *404 Gerald Orseck, Liberty, N.Y., for plaintiff.
Morris, Duffy, Ivone & Jensen, New York City (John E. Morris, New York City, of counsel), for defendants Community General Hospital and Young Chul Ko.
Appelbaum & Eisenberg, Liberty, N.Y. (Harold J. Bauman, Liberty, N.Y., of counsel), for defendant Village of Monticello.
Weiss & Costa, Monticello, N.Y. (Lawrence E. Lagarenne, Monticello, N.Y., of counsel), for defendant Bernard Blackman.
Aks & Tieger, Monticello, N.Y. (Jacob Aks, Monticello, N.Y., of counsel), for defendant Louis Gonzalez.
Garbarini, Scher & DeCicco, New York City (Leonard Weinstock, New York City, of counsel), for defendant Isidore Greenberg.
John S. McBride, Monticello, N.Y., for defendant Harry Lawrence.
Goldstein & Goldstein, Monticello, N.Y. (Carl P. Goldstein, Monticello, N.Y., of counsel), for defendant John McCormick.
Joseph Gold, Monticello, N.Y., for defendant Walter Ramsey.
Raskin & Rappaport, New York City (Lester Raskin, New York City, of counsel), for defendant Edward McManus.
OPINION AND ORDER
CANNELLA, District Judge:
Plaintiff's motion to file a second amended complaint, and the motions to dismiss interposed by defendants Community General Hospital, Isidore Greenberg and Young Chul Ko are granted. The motions to dismiss the complaint made by Harry Lawrence, John McCormick, Bernard Blackman, Louis Gonzalez, Walter Ramsey and Edward McManus are denied.
The within action was commenced on March 4, 1975 against the Village of Monticello ("Village") and its employees, officers and police officers, Community General Hospital, Young Chul Ko and Isidore S. Greenberg. Plaintiff's complaint makes the following factual allegations:
1. Plaintiff, while intoxicated, was involved in an automobile accident in Monticello, New York at approximately 12:00 midnight on October 21, 1974.
2. As a result of his intoxication, the plaintiff was unable to care for himself.
3. After the accident, he was arrested by police officers employed by the Village of Monticello and taken into their custody.
*405 4. During the accident, plaintiff suffered certain injuries, including a broken neck. Defendant police officers knew that plaintiff had suffered a broken neck.
5. Plaintiff was taken to Community General Hospital, where he was refused treatment and returned to the Monticello jail.
6. He was confined at the jail from 12:40 a. m. until 9:15 a. m. on October 22, 1974 without medical aid or assistance, although his need for such attention and the substantial nature of his injuries were obvious and known to defendant police officers.
7. During this time, plaintiff was physically abused by defendant police officers, seriously and irreversibly aggravating his injuries.
8. As a result of the injuries intentionally caused by defendants' physical abuse, and by the failure to diagnose and promptly treat plaintiff's pre-existing injuries, plaintiff became paralyzed and suffered other serious injuries.
Federal jurisdiction was asserted on the basis of the Civil Rights Act, specifically 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3); diversity of citizenship;[1] and, with respect to defendant Village, the doctrine of pendent jurisdiction. Thereafter, "The Village of Monticello and its police officers" moved to dismiss the complaint based upon the Court's lack of jurisdiction over the subject matter. In its decision of March 3, 1976, this Court concluded that the complaint alleged a valid cause of action under Section 1983 against the defendant police officers, and that the Village of Monticello was subject to jurisdiction as a "pendent party."[2]Sanabria v. The Village of Monticello, 75 Civ. 1070 (S.D.N.Y. March 3, 1976) (Cannella, J.).
Plaintiff subsequently moved for and was granted leave to amend the complaint to name individually the police officers of the Village of Monticello alleged to have participated in the events giving rise to plaintiff's injuries.[3]
A slight respite followed, after which the Court was deluged with sundry motions brought by the parties herein. The Court will deal with these motions seriatim.
MOTION OF DEFENDANTS HARRY LAWRENCE, JOHN McCORMICK, BERNARD BLACKMAN, LOUIS GONZALEZ, WALTER RAMSEY AND EDWARD McMANUS TO DISMISS ON THE BASIS OF THE STATUTE OF LIMITATIONS
In an action brought in federal court under the Civil Rights Act the statute of limitations to be applied is "the most appropriate one provided by state law." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); accord, Runyon v. McCrary, 427 U.S. 160, 179-184, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Plaintiff maintains that Second Circuit decisions applying the three year limitations period on N.Y.C. *406 P.L.R. § 214(2)[4] in a federal civil rights case are dispositive of the issue herein. Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970). The Court agrees. Although the defendant police officers take the position that New York General Municipal Law § 50-j, which makes the one-year and ninety-day limitation period of General Municipal Law § 50-i applicable to suits against police officers for negligent acts or torts, is the relevant state statute,[5] at the time of the incidents involved herein Section 50-j applied only to cities "having a population of one million or more."[6] Its amendment to include "every city, county, town, village, authority or agency" was effective beginning August 9, 1975, well after plaintiff's cause of action accrued.
Under New York law statutes of limitations are given prospective application unless a contrary intent is clearly indicated. People v. Cohen, 245 N.Y. 419, 421, 157 N.E. 515 (1927); Hastings v. H. M. Byllesby & Co., 265 App.Div. 653, 40 N.Y.S.2d 307 (1st Dep't 1943), aff'd, 293 N.Y. 413, 57 N.E.2d 737 (1944); New York Central R.R. v. Erie R.R., 30 Misc.2d 362, 213 N.Y.S.2d 15, 24 (Sup.Ct. N.Y. County 1961); Ilott v. Deibert, 19 Misc.2d 564, 195 N.Y.S.2d 405 (Sup.Ct. N.Y. County 1959), reversed on other grounds, 11 A.D.2d 980, 207 N.Y.S.2d 991 (1st Dep't 1960). Cf. Kelly v. Yannotti, 4 N.Y.2d 603, 605-06, 176 N.Y.S.2d 637, 640, 152 N.E.2d 69 (1958) (amendment to Civil Practice Act § 592(2) shortening time to move for leave to appeal does not apply to orders entered prior to the effective date). Thus, the former statute of limitations remains applicable to a cause of action that accrued prior to the change in the law. Buckley Petroleum Products, Inc. v. Goldman, 28 A.D.2d 640, 280 N.Y.S.2d 876 (4th Dep't 1967); Mannheimer v. Keehn, 30 Misc.2d 584, 41 N.Y.S.2d 542, 552-53 (Sup.Ct. Monroe County 1943), modified, 268 App.Div. 813, 49 N.Y.S.2d 304, amended, 268 App.Div. 845, 51 N.Y.S.2d 750 (4th Dep't 1944).
Accordingly, the three-year limitation period ordinarily applicable to civil rights actions and not the more specific provisions of General Municipal Law § 50-j controls here. In that plaintiff was granted leave to amend the complaint to name the defendant police officers on March 30, 1976, less than three years after the occurrence of the incidents complained of, the Court finds that the instant action is not barred by the statute of limitations.
PLAINTIFF'S MOTION TO JURISDICTIONALLY AMEND THE COMPLAINT
Jurisdiction over the Defendant Municipality
After the Supreme Court's decision in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), (see note 2, supra), plaintiff moved to further amend the complaint to assert jurisdiction against the Village of Monticello pursuant to 28 U.S.C. § 1331(a). The Village opposes the *407 amendment, and therefore federal jurisdiction over it, contending that plaintiff's claim is not one which "arises under the Constitution" of the United States. 28 U.S.C. § 1331(a).
Of course, where the amount in controversy exceeds $10,000,[7] a complaint seeking recovery under the Constitution properly invokes federal subject matter jurisdiction over a municipality. Brault v. Town of Milton, 527 F.2d 730, 736 (2d Cir. 1975) (en banc); Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976); Construction Indus. Ass'n v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976); Gray v. Union County Intermediate Educ. Dist., 520 F.2d 803, 805 (9th Cir. 1975); Calvin v. Conlisk, 520 F.2d 1, 8-10 (7th Cir. 1975), vacated on other grounds, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976); Hanna v. Drobnick, 514 F.2d 393, 398 (6th Cir. 1975); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n.2 (5th Cir. 1974). See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (Brennan, J., concurring); Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946). However, the Village contends that plaintiff's invocation of the eighth and fourteenth amendments is frivolous, done merely to establish federal court jurisdiction. The Court finds this argument unconvincing.
The deprivation of medical care to a prisoner has been considered both a denial of due process as guaranteed by the fourteenth amendment, Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976); Fitzke v. Shappell,, 468 F.2d 1072, 1074-77 (6th Cir. 1972); Church v. Hegstrom, 416 F.2d 449, 450 (2d Cir. 1969), and a violation of the eighth amendment right to be free from cruel and unusual punishment, Estelle v. Gamble, ___ U.S. ___, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Reeves, supra, 532 F.2d at 495; Martinez v. Mancusi, 443 F.2d 921, 923 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971); Church v. Hegstrom, 416 F.2d 449, 451 (2d Cir. 1969).[8] In any event, it is beyond peradventure that the Constitution affords protection for a state prisoner's right to medical care. Accordingly, plaintiff's claims herein do arise under the Constitution, and federal subject matter jurisdiction is properly invoked under 28 U.S.C. § 1331(a).
Availability of Damages against the Defendant Municipality
Having determined that there is federal subject matter jurisdiction over the within action, the Court must confront the issue of whether plaintiff's complaint states a claim against the defendant Village upon which relief can be granted.
In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court ruled that the Constitution itself gives rise to a cause of action in damages to redress the deprivation by a federal officer of a constitutionally guaranteed right, without regard to the absence of a statutorily created cause of action such as that embodied in 42 U.S.C. § 1983. Such an action "arises under the Constitution," 28 U.S.C. § 1331, and is cognizable in federal court when more than $10,000 is in controversy. 403 U.S. at 398, 91 S.Ct. 1999 (Harlan, J., concurring). Although the Second Circuit has twice refused to rule on whether like reasoning would apply to suits for damages against municipalities where there likewise are no statutory remedies, Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975); Brault v. Town of Milton, 527 F.2d 730, 736 (2d Cir. 1975) (en banc); but see Brault v. *408 Town of Milton, 527 F.2d 730 (2d Cir. 1975) (panel decision), numerous other courts have entertained, pursuant to Section 1331(a), suits against municipalities for money damages brought directly under the Constitution.[9]E.g., Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976) (claim against the City of Jackson for the grossly inadequate medical care provided by its police officers); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975) (action for damages brought against the County of Washington for deprivation of complainant's thirteenth and fourteenth amendment rights); Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569, 576-77 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976) (municipal corporation answerable for violation of individual's procedural due process rights); Gray v. Union County Intermediate Educ. Dist., 520 F.2d 803 (9th Cir. 1975) (semble) (enforcing first amendment rights against a political subdivision of the state under 28 U.S.C. § 1331(a)); Hanna v. Drobnick, 514 F.2d 393, 398 (6th Cir. 1975) (municipality liable in damages for searches conducted pursuant to a building inspection ordinance that violated the fourth amendment); Shifrin v. Wilson, 412 F.Supp. 1282, 1305 (D.D.C.1976) (municipalities "can be held liable in actions for deprivation of constitutional rights" occasioned by its police officers); Waltenberg v. New York City Dep't of Correction, 376 F.Supp. 41 (S.D.N.Y.1974) (Gurfein, J.) (action brought against municipal agency for acts of its officers in violation of the constitutional protection against cruel and unusual punishment).
The issue is by no means free from controversy, however, as a number of federal courts have concluded that the Supreme Court's pronouncements in Monroe v. Pape[10] and City of Kenosha v. Bruno[11] have foreclosed federal damage remedies against municipalities. Perry v. Linke, 394 F.Supp. 323, 326 (N.D.Ohio 1974); Jamison v. McCurrie, 388 F.Supp. 990 (N.D.Ill.1975); Smetanka v. Borough of Ambridge, 378 F.Supp. 1366, 1377-78 & n.2 (W.D.Pa.1974) (alternative ground); Perzanowski v. Salvio, 369 F.Supp. 223, 228-30 (D.Conn.1974); Payne v. Mertens, 343 F.Supp. 1355, 1358 (N.D.Cal.1972). See also Brault v. Town of Milton, 527 F.2d 730, 735-36 (2d Cir.) (Timbers, J., dissenting from panel opinion), vacated on other grounds, id. at 736 (1975) (en banc); Snead v. Department of Social Services, 409 F.Supp. 995, 1001 (S.D.N.Y.1975) (three-judge court) (Mulligan, J., concurring in the result). After considering the factors deemed controlling by the aforementioned cases, this Court concludes that the holdings in Monroe and City of Kenosha stem from the unique legislative history of the Civil Rights Act, and that municipal liability under the Constitution will not "vitiate the Congressional mandate of 42 U.S.C. § 1983." Payne v. Mertens, 343 F.Supp. at 1358.
The factor invariably cited in support of decisions finding federal damage remedies against municipalities foreclosed by Monroe and City of Kenosha is the congressional judgment that municipalities should not be liable in damages.[12] For example, in Perry v. Linke, 394 F.Supp. 323 *409 (N.D.Ohio 1974), the court refused to extend the Bivens rationale to like suits against municipalities for acts of their law enforcement agents. Unlike the situation presented in Bivens, where there would have been no civil remedy for the allegedly unconstitutional acts of the federal agents absent an implied one, the Perry court found an express right of redress for constitutional violations that Congress had limited to actions brought against state officers in their individual capacities. 394 F.Supp. at 326. This Court is not persuaded by such reasoning. Nowhere in Bivens did the Supreme Court indicate that it was merely plugging a gap in the remedies provided by civil rights legislation. On the contrary, the Court was compelled by the need to afford a remedy "where federally protected rights have been invaded." 403 U.S. at 392, 91 S.Ct. at 2002. This Court can see no less a need for the availability of an appropriate remedy where a municipality has violated the constitutional rights of an individual than where those same rights have been infringed by a federal officer acting under color of his authority.
Nor is the Court confronted herein with an "explicit congressional declaration that persons injured by a . . . violation of the [Constitution] may not recover money damages from the [municipality], but must instead be remitted to another remedy, equally effective in the view of Congress." Bivens, supra, 403 U.S. at 397, 91 S.Ct. at 2005. For, as stated above, municipal immunity from suits under 42 U.S.C. § 1983 stems from the unique legislative history of the Act. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (Brennan, J., concurring). Certain members of the House of Representatives did voice opposition to provisions of the Civil Rights Act that would have subjected municipalities to liability for damages, pointing to the devastating effect such damages might have on municipalities. Those provisions, however, were exceedingly broad in that a municipality could have been held liable thereunder for any offense committed within its borders "with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color or previous condition of servitude . . . ."[13] By virtue of the proposed amendments, liability would have extended to actions of persons over whom the municipality had no control. Municipal liability under the Constitution, on the other hand, results in damages solely for acts of the municipality qua municipality, or those of its officers,[14] a much more limited exposure. Moreover, the various types of immunity available to municipal employees and officials in actions commenced pursuant to Section 1983 and the Constitution, see, e.g., Wood v. Strickland, 420 U.S. 308, 314-18, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238-49, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 553-57, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), render an implied remedy against municipalities, such as that found in Bivens, essential to the complete protection of federally created rights.
Thus, mindful of the caution of the Bivens Court that some situations may be characterized by "special factors counselling hesitation" in fashioning a remedy for constitutional violations, 403 U.S. at 396, 91 S.Ct. at 2005, this Court finds a cause of action in damages against a municipality available to an individual who has suffered a constitutional deprivation. The Court does not find in Monroe or Kenosha the general assertion that a municipality may *410 never be sued for deprivations of constitutional rights.[15]
Applicability of the Doctrine of Respondeat Superior to Suits against Municipalities Brought Directly under the Constitution
In considering the availability of a damage remedy against a municipality directly under the Constitution, at least one court has distinguished between liability imposed under the fourteenth amendment for acts of the governmental unit itself and liability imposed vicariously for activities of its employees or officials. See Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975). It may therefore be appropriate to hold a governmental sub-unit liable for damages due to its governmental actions,[16] and yet inappropriate to impose liability because of acts committed by its employees or officers. It is the opinion of this Court, however, that the doctrine of respondeat superior should apply to misconduct of municipal functionaries in carrying out governmental operations.
Although the doctrine of respondeat superior is not applicable to claims under 42 U.S.C. § 1983, Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1033-34 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971), substantially different considerations apply where municipal liability is involved.[17] Thus, numerous courts have held, in cases involving alleged constitutional violations, that municipalities may be held liable for the misconduct of its officials under the doctrine. Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976); Shifrin v. Wilson, 412 F.Supp. 1282, 1306-08 (D.D.C. 1976); Collum v. Yurkovich, 409 F.Supp. 557, 559 (N.D.Ill.1975); Williams v. Brown, 398 F.Supp. 155, 158-60 (N.D.Ill.1975); Waltenberg v. New York City Dep't of Correction, 376 F.Supp. 41 (S.D.N.Y.1974) (Gurfein, J.). Contra, Smetanka v. Borough of Ambridge, 378 F.Supp. 1366, 1377 n.2 (W.D. Pa.1974).
In Reeves v. City of Jackson, supra, the Fifth Circuit analyzed a set of facts similar to the one presently before the Court. The plaintiff therein alleged that he was found unconscious, slumped over the steering wheel of his car, by two Jackson City police officers and that the officers arrested him, thinking he was intoxicated, and took him to the city jail where he remained unconscious for twenty-two hours. No attempt was made to determine whether plaintiff was ill, and no medical care was administered. On these facts plaintiff commenced an action against the city for false arrest, false imprisonment and failure to give adequate medical treatment. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. The court of appeals reversed, finding that the alleged provision of grossly inadequate medical care by the individual police officers stated a claim against the municipal employer directly under the Constitution and 28 U.S.C. § 1331(a)
This Court agrees that in an action brought under the fourteenth amendment, *411 which is expressly directed at state action, a municipality should be answerable for the constitutional infringements of its employees. In such a situation, the need for a defendant capable of responding in damages to a plaintiff who has been deprived of a right guaranteed by the Constitution outweighs the need to protect the municipal coffers. As stated by Judge Marshall in Williams v. Brown,
It would be irrational to hold a municipality immune from liability under the very part of the Constitution enacted to meet the perceived need for a federal means of limiting the abuse of individual rights by municipalities and other repositories of state power as they acted through their employees . . . .[18]
398 F.Supp. at 159.
MOTION OF DEFENDANTS GREENBERG, YOUNG AND COMMUNITY GENERAL HOSPITAL TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
The claims against defendants Isidore Greenberg, Young Chul Ko and Community General Hospital founder upon the requirement of § 1983 that the complained of activities be "under color of state law." Indeed, private parties who act in conjunction with state officials may be liable under § 1983, although they are not themselves state officials. Adickes v. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The actions of non-state officials, however, "cannot comprise state action unless [such defendants] were willful participants in joint activity with the State or its agents." Buck v. Board of Elections, 536 F.2d 522, 524 (2d Cir. 1976). Accord, Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975); see United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).
The only possible connection between the medical defendants herein and state authority is the allegation that, for a period of forty minutes during the morning of October 22, 1974, the police officers placed plaintiff in the medical defendants' custody for medical treatment. The record is barren of any assertion that the non-state defendants were acting in complicity with the state officials, or pursuant to a common design to deprive plaintiff of his constitutional rights. Moreover, there is nothing before the Court to indicate that the alleged lack of medical care was the result of concerted activity on the part of the police officers and medical personnel. Thus, even if Community General Hospital, Greenberg and Young failed to administer proper medical care to plaintiff, they did not do so "under color of state law."
CONCLUSION
The motions of Bernard Blackman, Louis Gonzalez, Walter Ramsey, Harry Lawrence, Edward McManus and John McCormick are hereby denied. As to defendants Community General Hospital, Young Chul Ko and Isidore Greenberg, the complaint is dismissed.
Plaintiff is directed to file a second amended complaint within seven days.
SO ORDERED.
NOTES
[1] Plaintiff has since withdrawn his contention that diversity jurisdiction is present in the instant case.
[2] On June 24, 1976, the Supreme Court held that the doctrine of pendent jurisdiction may not be applied to join as a party to a federal civil rights action a municipal corporation as to which there existed no independent basis of federal jurisdiction. Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). Accordingly, so much of this Court's prior decision as held defendant Village subject to jurisdiction on the pendent party theory is hereby vacated.
[3] Although plaintiff originally captioned his action
BENJAMIN SANABRIA,
Plaintiff,
against
THE VILLAGE OF MONTICELLO, a municipal
subdivision of the State of New York, and
its employees, officers and police officers,
COMMUNITY GENERAL HOSPITAL,
YOUNG CHUL KO and ISIDORE S. GREENBERG,
Defendants.
and demanded damages from the "defendant police officers," he failed to name the officers individually in the complaint until granted leave to do so on March 30, 1976.
[4] This section is applicable to actions to recover on a liability created by statute.
[5] Section 50-j. Liability of police officers for negligence in the performance of duty
. . . . .
3. No action or special proceeding instituted hereunder shall be prosecuted or maintained against the municipality, authority or agency concerned or such police officer unless notice of claim shall have been made and served upon such municipality, authority or agency in compliance with section fifty-e of this chapter. Every such action shall be commenced pursuant to the provisions of section fifty-i of this chapter.
Section 50-i provides, in pertinent part:
No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof . . . unless . . . the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based. [Emphasis added.]
[6] The Court takes judicial notice of the fact that the Village of Monticello has a population of less than one million.
[7] Defendants have not challenged plaintiff's assertion that there is more than $10,000 in controversy in the instant action.
[8] Particularly appropriate are Reeves v. City of Jackson, and Fitzke v. Shappell, which involve individuals allegedly denied medical attention and incarcerated after automobile accidents.
[9] There seems to be no question that this remedy exists for violations of the just compensation clause of the fifth amendment. See, e.g., Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); Sayre v. Cleveland, 493 F.2d 64 (6th Cir.), cert. denied, 419 U.S. 837, 95 S.Ct. 65, 42 L.Ed.2d 64 (1974); Foster v. City of Detroit, 405 F.2d 138, 144 (6th Cir. 1968). This is attributable, however, to the particular nature of the clause, which in and of itself provides for a damage remedy.
[10] 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Monroe held that a municipality may not be held liable for damages under 42 U.S.C. § 1983.
[11] 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The Supreme Court therein extended the holding of Monroe to equitable relief.
[12] For a discussion of whether Congress even has the power to bar an award of damages against a municipality for a constitutional violation, see Note, Damage Remedies Against Municipalities For Constitutional Violations, 89 Harv.L.Rev. 922, 935-39 (1976).
[13] Cong. Globe, 42d Cong., 1st Sess. 663, 749. In concluding that this expression of congressional intent was directed solely at the proposed amendments, some courts have gone so far as to hold a municipality subject to liability under 42 U.S.C. § 1981, a companion of § 1983. E.g., Robinson v. Conlisk, 385 F.Supp. 529, 535 & n.5 (N.D.Ill.1975); Maybanks v. Ingraham, 378 F.Supp. 913, 916 (E.D.Pa.1974).
[14] For a discussion of respondeat superior liability of a municipality under the Constitution, see notes 16-18 and accompanying text, infra.
[15] In fact, the Monroe Court specifically avoided evaluation of policy arguments regarding municipal liability. 365 U.S. at 191, 81 S.Ct. 473.
[16] For example, for actions resulting in the taking of property without just compensation, see note 12 supra, or those involving the municipality as an employer, e.g., Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976); Gray v. Union County Intermediate Educ. Dist., 520 F.2d 803 (9th Cir. 1975); Skehan v. Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975).
[17] Application of respondeat superior principles in § 1983 actions would result in liability of officials for actions of their subordinates who were not performing services for their benefit, but for the benefit of the municipality. Where respondeat superior liability of a municipality is involved (which, of course, cannot be the case under 1983) this consideration operates in favor of application of the doctrine.
[18] It has also been noted that "[d]amage liability of a municipality for the unconstitutional acts of its employees is particularly appropriate in the area of police misconduct." Williams v. Brown, 398 F.Supp. 155, 159 (N.D.Ill.1975).
| {
"pile_set_name": "FreeLaw"
} |
No. 3--01--0995
_________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2002
ROBERT DOYLE, Indiv. ) Appeal from the Circuit Court
and as Guardian of the Estate ) for the 10th Judicial Circuit,
of Derek Doyle, a Minor, ) Peoria County, Illinois
Plaintiff-Appellant, )
)
v. ) No. 01MR100
)
STATE FARM MUTUAL AUTOMOBILE ) Honorable
INSURANCE COMPANY, ) Donald C. Courson
Defendant-Appellee. ) Judge Presiding
_________________________________________________________________
JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________
Claiming that he was entitled to underinsured motorist (UIM)
benefits under two
separate policies
of insurance,
plaintiff Robert Doyle filed this declaratory judgment action against defendant State Farm Mutual Automobile Company
on behalf of his son Derek
.
The trial court granted State Farm's motion for a judgment on the pleadings, and we concur with its determination that the language of the policies was unambiguous and did not allow
for the proration of UIM benefits to reach the highest limit of liability of any one policy.
FACTS
In February of 1999, Derek was seriously injured when he was struck by a motor vehicle while walking. The driver of the vehicle was insured by Allstate Insurance under a policy that contained only a $25,000-per-person bodily liability limit. Robert alleged that the value of his claims exceeded $130,000. Fortunately, Robert and Derek were insured by State Farm under two identical personal automobile policies, which were paid for by separate premiums, and each had $100,000 in underinsured motorist coverage. The policies stated:
"1. If the
insured
sustains
bodily
injury
as a pedestrian and other underinsured motor vehicle coverage issued by us or any other insurer applies:
a. the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability;
* * *
5. The most we will pay any one
insured
is the lesser of:
a. the difference between the 'each person' limit of this coverage and the amount paid to the
insured
by or for any
person
or organization who is or may be held legally liable for the
bodily
injury
caused by an
underinsured
motor
vehicle
." (Emphasis in original).
With State Farm's consent, Allstate tendered its policy limit of $25,000. Robert made a demand to State Farm that it pay $100,000 pursuant to the terms of its policies
to cover the remainder of Derek's damages.
State Farm refused, claiming that its maximum exposure under the UIM policies was $75,000.
ANALYSIS
The issue on appeal is w
hether the trial court properly determined that the maximum UIM benefits State Farm was required to pay is $75,000. We review the trial court's interpretation of an insurance contract
de
novo
.
Whiting v. Prestige Casualty Co.
, 238 Ill. App. 3d 376, 606 N.E.2d 397 (1992).
Robert claims that the language of paragraph 1a
, which states that "the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability,"
allows him to collect a total of $100,000 in UIM benefits because that is the highest limit of liability under any one policy. He argues that he can receive this sum using the aggregate of the two policies ($50,000 per policy). Robert denies that he is attempting to "stack" the policies, but
claims that section 143a-2(5) of the Illinois Insurance Code (Code) (215 ILCS 5/143a-2(5) (West 2000)) and applicable case law support his position. Finally, Robert contends that State Farm's inconsistent application of the policy language in another case
demonstrates that the policy language is ambiguous and, therefore, the policy should be construed in his favor.
When construing the language of an insurance policy, courts must ascertain and give effect to the intention of the parties as expressed in their agreement.
Kapinus v. State Farm Mutual Automobile Insurance Co.
, 317 Ill. App. 3d 185, 738 N.E.2d 1003 (2000). The terms utilized in the policy are accorded their plain and ordinary meaning, and those terms will be applied unless such application contravenes public policy.
Kapinus
, 317 Ill. App. 3d at 187, 738 N.E.2d at 1005. If the policy language is unambiguous, courts will determine the parties' intent directly from the language without resorting to rules of construction.
American Family Mutual Insurance Co. v. Martin
, 312 Ill. App. 3d 829, 728 N.E.2d 115 (2000). If an ambiguity exists, courts will adopt a liberal construction of the language used in favor of the insured, while the policy will be construed strictly and strongly against the insurer.
Yates v. Farmers Automobile Insurance Ass'n
, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000).
In our view, the policy language
is unambiguous. It provides that
the most State Farm is required to pay in UIM benefits is the highest limit of liability of any one policy minus the amount paid by the party legally responsible for the injury. In this case, the highest limit of liability of any one policy is $100,000. The amount recovered by the party legally responsible for the injury is $25,000. Thus, the most State Farm is required to pay in UIM benefits is $100,000 minus $25,000, or $75,000.
Robert presents a unique argument that we should interpret paragraph 1a of the contract so that UIM benefits are prorated between the two policies to reach the highest limit of liability of any one policy. He claims that he is not attempting to "stack" the policies, but we disagree. Paragraph 1a does not provide for the procedure suggested by Robert. He could
only reach the benefits of the two policies if the policies are stacked.
While he is not claiming $200,000 under the two policies, he is still "stacking" the policies to obtain the $100,000 he believes he is entitled to. Stacking by any other name is still stacking.
Although we find no cases that address the precise language of the contract in this case, similar language has been found by other courts to prohibit the stacking of policies. S
ee,
e.g.
,
Grzeszczak v. Illinois Farmers Insurance Co.
, 168 Ill. 2d 216, 659 N.E.2d 952 (1995) (determining that the phrase "shall not exceed the highest applicable limit of liability under any one policy" was unambiguous and allowed a plaintiff to recover up to the highest limit available under one of the policies only);
American Family Mutual Insurance Company v. Martin
, 312 Ill. App. 3d at 831, 728 N.E.2d 118 (2000) (finding that the phrase "under all policies issued to you by us shall not exceed the highest limit of liability under any one policy" was unambiguous and provided that the insured could not stack underinsured motorist coverages of multiple policies).
Robert contends that section 143a-2(5) of the Illinois Insurance Code (Code) (215 ILCS 5/143a-2(5) (West 2000))
bolsters his claim that he is entitled to receive $100,000 in benefits under paragraph 1a of the contract. Section 143a-2(5) states:
"Nothing herein shall prohibit an insurer from setting forth policy terms and conditions which provide that if the insured has coverage available under this Section under more than one policy or provision of coverage, any recovery or benefits may be equal to, but may not exceed, the higher of the applicable limits of the respective coverage, and the limits of liability under this Section shall not be increased because of multiple motor vehicles covered under the same policy of insurance." 215 ILCS 5/143a-2(5) (West 2000).
This appears to be nothing more than a legislative decree that stacking can be prohibited in insurance policies. Thus, based on a plain reading of section
143a-2(5), we do not find any support for Robert's assertion.
Robert cites
Hall v. Burger
, 277 Ill. App. 3d 757, 660 N.E.2d 1328 (1996), in support of his contention that he is allowed to recover UIM benefits under both policies to reach the highest limit of liability of any one policy.
To the contrary, we believe
Hall
represents the opposite position.
The
Hall
court determined that an antistacking clause in an insurance policy, which stated that "'[i]f this policy and any other vehicle insurance policy issued to you by this Company apply to the same accident, the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy,'" was unambiguous and applied in a situation where the insured sued both the owner and operator of the underinsured vehicle.
Hall
, 277 Ill. App. 3d at 762, 660 N.E.2d at 1332. The court, citing to section 143a-2(5),
held that public policy did not prevent the application of antistacking clauses.
Hall
, 277 Ill. App. 3d at 762, 660 N.E.2d at 1332.
Finally, Robert cites to this court's prior decision in
Kapinus v. State Farm Mutual Automobile Insurance Co.
, 317 Ill. App. 3d at 186, 738 N.E.2d at 1004
, in which State Farm agreed to stack two UIM policies with the same language as in this case to provide for the recovery of benefits under the aggregate of both. Because State Farm allowed the policies to be stacked in that case
,
Robert claims that the inconsistent application demonstrates the language of the policy here is ambiguous
. Thus, he claims that the policy should be construed in his favor. Notwithstanding Robert's argument,
we find
Kapinus
inapplicable because stacking was agreed to by State Farm. It was not an issue in that case. See
Kapinus
, 317 Ill. App. 3d at 187, 738 N.E.2d at 1005 (considering whether an insured, who had multiple UIM policies, was allowed a setoff for amounts paid by the legally responsible party against one of the policies only
).
Accordingly, we determine that the trial court did not err when it determined that Robert was entitled to receive a maximum of $75,000 in UIM benefits. Thus,
we affirm.
For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.
Affirmed.
LYTTON, P.J., and HOLDRIDGE, J., concur.
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COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-359-CR
MIKKI LEA MCMANUS
APPELLANT
V.
THE STATE OF TEXAS
STATE
------------
FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
------------
MEMORANDUM OPINION(1)
------------
Appellant Mikki Lea McManus appeals her conviction for driving while
intoxicated. In one point on appeal, she asserts that the trial court erred by
denying her motion to suppress because there was no reasonable suspicion for the
police to have made the stop. We affirm.
BACKGROUND
At 2:15 a.m. on September 7, 2001, Sergeant Mark Bergstrom of the University of
North Texas Police Department observed appellant's car stopped at a flashing red
light for fifteen to twenty seconds. There was no traffic at the intersection.
Appellant then turned right without using her turn signal, and Officer Bergstrom
began to follow her. Appellant's vehicle drifted from the left lane to the right
lane and back, again without signaling, and she was traveling approximately five
to ten miles over the speed limit. Appellant then turned right, this time using
a turn signal. Officer Bergstrom activated his overhead flashing lights and
stopped appellant. When she exited her vehicle, he noticed that she had an odor
of alcoholic beverage on her breath and her speech was slurred. Appellant told
Officer Bergstrom that she had been drinking. Officer Bergstrom arrested
appellant after she was unable to successfully perform either the nine-step
walk-and-turn test or the one-legged stand test.
At the suppression hearing, Officer Bergstrom testified that his attention was
drawn to appellant while she waited at the flashing red light because it was not
normal for vehicles to sit at a flashing red light for fifteen to twenty seconds
with no other traffic in the vicinity. He then observed her commit the traffic
offense of failing to signal intent while turning right, even though the turn
was not unsafe. He also observed her weave from the left lane to the right and
back to the left and exceed the speed limit. The trial judge stated that the
fifteen-to-twenty second stop at the flashing red light was not unusual, but
that he was denying the motion to suppress because the officer had reasonable
suspicion to stop appellant when he observed her commit the traffic offense of
turning without signaling an intent to turn.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000). We afford almost total deference to a trial court's determination of
the historical facts that the record supports, especially when the trial court's
fact findings are based upon an evaluation of credibility and demeanor. State
v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v.
State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). We afford the same
amount of deference to the trial court's ruling on mixed questions of law and
fact, if the resolution of those questions turns on an evaluation of credibility
and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial
court's determination of reasonable suspicion and probable cause. Id. at
87. If the trial court's decision is correct on any theory of law applicable to
the case, the decision will be sustained. Ross, 32 S.W.3d at 855-56.
DISCUSSION
Because Officer Bergstrom stopped appellant without a warrant, the State bore
the burden at the suppression hearing of demonstrating the stop was reasonable
within the totality of the circumstances. Hulit v. State, 982 S.W.2d
431, 436 (Tex. Crim. App. 1998); Singleton v. State, 91 S.W.3d 342, 346
(Tex. App.--Texarkana 2002, no pet.). To justify a traffic stop, the officer
must have observed specific objective, articulable facts which, in light of the
officer's experience and personal knowledge, together with inferences from those
facts, would warrant a reasonable person to believe a traffic violation had
occurred. Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App.
1997); Singleton, 91 S.W.3d at 346.
The Texas Transportation Code governs the use of turn signals. According to
section 545.104:
(a) An operator shall use the
signal authorized by Section 545.106 to indicate an intention to turn, change
lanes or start from a parked position.
(b) An operator intending to turn
a vehicle right or left shall signal continuously for not less than the last
100 feet of movement of the vehicle before the turn.
Tex.
Transp. Code Ann. § 545.104(a), (b) (Vernon 1999). In her brief, appellant
acknowledges that an officer may lawfully stop and detain a person for a traffic
violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App.
1993). She contends, however, that the officer did not have reasonable suspicion
to stop her because the statute does not require a turn signal when the turn is
actually being made and the officer did not observe her until she was stopped
immediately before turning right without using a turn signal. We disagree. The
statute requires the operator to signal continuously before the turn, which
would include the time during which she was stopped at the flashing red light. See
Howard v. State, 599 S.W.2d 597, 599 (Tex. Crim. App. 1979); Beck v.
State, 547 S.W.2d 266, 267 (Tex. Crim. App. 1976); State v. Zeno, 44
S.W.3d 709, 712 (Tex. App.--Beaumont 2001, pet. ref'd); Trahan v. State, 16
S.W.3d 146, 147 (Tex. App.--Beaumont 2000, no pet.). The officer also observed
appellant traveling in excess of the posted speed limit and failing to maintain
a single lane of traffic, Tex. Transp. Code Ann. §§ 545.060, 545.351, either
of which would also have given him reasonable suspicion for a traffic violation
stop. Ross, 32 S.W.3d at 855-56.
CONCLUSION
We hold that the trial court did not err by denying appellant's motion to
suppress. Accordingly, we affirm the trial court's judgment.
PER CURIAM
PANEL F: GARDNER, HOLMAN, and
WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 5, 2003
1. See Tex. R. App. P. 47.4.
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654 F.Supp. 38 (1986)
Marcella MOORE, Plaintiff,
v.
FLORIDA BANK OF COMMERCE, Defendant.
No. C-3-85-709.
United States District Court, S.D. Ohio, W.D.
November 21, 1986.
*39 Carl Genberg, Columbus, Ohio, and Christ Theodor, Xenia, Ohio, for plaintiff.
David T. Knight and Craig B. Glidden, Tampa, Fla., Winfield E. Kinney, III, Dayton, Ohio, for defendant.
DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. #25); JUDGMENT TO BE ENTERED FOR DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY
RICE, District Judge.
The motion of the Defendant herein, seeking an order of this Court granting summary judgment in its favor and against the Plaintiff (Doc. #25), is sustained, and judgment for the Defendant and against the Plaintiff will be entered accordingly.
This action was brought by the Plaintiff, Marcella Moore, against the Defendant, Florida Bank of Commerce (FBC), to recover the difference between the advertised value and the actual value of an automobile won by the Plaintiff in a raffle. The promotional literature as well as the raffle ticket listed the object of the raffle, a hand-crafted replica of a 1937 Cord Phaeton (Cord), as having last sold for $65,000. After being informed that she had won the raffle and after accepting delivery of the Cord, the Plaintiff discovered that the automobile had a value of approximately $25,000.
*40 The Plaintiff brought suit in this Court under 28 U.S.C. § 1332 (diversity jurisdiction) and sought relief on two grounds. Count I of the Plaintiff's Complaint sets forth a claim under the Ohio Consumer Sales Practices Act, Ohio Rev. Code § 1345, et seq. Count II of the Complaint sets forth a claim for breach of contract.
It must be noted at the outset that the Defendant, Florida Bank of Commerce, was not the sponsor of the raffle. Rather, the raffle was sponsored by the Dayton District Academy of Osteopathic Medicine (Academy). The Plaintiff chose not to sue the Academy. Accordingly, the Academy is not a party to this lawsuit.
FBC is a Florida banking institution with its place of business in Clearwater, Florida. During 1981, FBC, as collateral for a loan made to Antique Autos of America, Inc., accepted from Antique Autos the pledge of two Cord Replicars, one of which is the subject of this lawsuit, based upon the representation of Antique Autos that the cars were selling for up to $65,000 each. Antique Autos subsequently defaulted on the loan and filed a voluntary bankruptcy petition. FBC successfully recovered the two Cord Replicars from the bankruptcy trustee.
In an effort to recoup its loss, FBC made attempts to sell the Cords. Included among these attempts was the placement of an advertisement in the "Robb Report," a publication that advertises the sale of expensive or unique automobiles.[1] During the latter part of 1983, Mary Theodoras, a member of the Board of Directors of FBC and a member of the Academy, volunteered to inquire whether the Academy had an interest in buying the Cord from FBC and using it as a prize in a fund-raiser for one of the Academy's charitable projects. The Academy responded favorably, and in 1984 entered into an option agreement with FBC to purchase the Cord for the sum of $40,373.85. The option was subsequently exercised by the Academy.
The Academy began promoting the raffle and, after receiving the Cord from FBC, placed it on display. The Academy also used promotional materials which duplicated the language, including the alleged last sale price, used by FBC in its advertisement placed in the Robb Report.
The Plaintiff purchased a raffle ticket for $250, and at the drawing held in June, 1984, her ticket was selected as the winner. Thereafter, FBC delivered the title to the Cord to the Academy, which in turn delivered it to the Plaintiff. The Plaintiff later discovered the value of the Cord to be approximately $25,000, and brought this lawsuit.
Discussion
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court in deciding a motion for summary judgment must construe the evidence and all inferences drawn therefrom in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
(A) Ohio Consumer Sales Practices Act
In its Motion for Summary Judgment (Doc. #25), the Defendant contends that it is entitled to summary judgment because as a matter of law, FBC is not a *41 "supplier" within the meaning of Ohio Rev. Code § 1345.01(C). The Court agrees.
In her Complaint, the Plaintiff alleges that FBC is a "supplier" as defined by Ohio Rev.Code § 1345.01(C), and that therefore FBC's role in the raffle violated Ohio Rev. Code § 1345.02(A), which provides:
(A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during or after the transaction.
A supplier as defined in Section 1345.01(C) is "a sellor, lessor, assignor, franchisor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not he deals directly with the consumer." (emphasis added).
Although no Ohio court has defined the level of business activity required for a finding that one is "engaged in the business of" effecting or soliciting consumer transactions, the Defendant urges and the Court agrees that the phrase implies more than one isolated sale, especially when that sale is not within the seller's usual course of business. The phrase "engaged in the business of" is commonly used in statutory schemes and has generally been held to connote continuous or regular activity, rather than a singular or isolated sale. See United States v. Tarr, 589 F.2d 55 (1st Cir.1978) (the words "to engage in the business of" strongly imply more than one isolated sale or transaction); Fillippo v. S. Bonaccurso & Sons, Inc., 466 F.Supp. 1008 (E.D.Pa.1978) ("being engaged in an activity requires more than a single act or transaction or occasional participation"); UFITEC, S.A. v. Carter, 20 Cal.3d 238, 571 P.2d 990, 142 Cal.Rptr. 279 (1977) (the phrase "engaged in the business of" connotes a certain regularity of participation).
The affidavit of C. Richard Ross, the Chief Executive Officer and Chairman of the Board of FBC, filed in support of the Defendant's motion, indicates that FBC was not engaged in any other sales of automobiles or any other conduct which involved effecting or soliciting consumer transactions [with automobiles]. The Plaintiff has not produced any Rule 56 material regarding this issue and thus has failed to raise a genuine issue of fact on this point.
For the foregoing reasons, the Court finds that no genuine issue of material fact exists which would indicate that the Defendant's conduct is covered under the Consumer Sales Practices Act. Accordingly, the Defendant is entitled to summary judgment as to Count I.
(B) Breach of Contract
Count II of the Plaintiff's Complaint alleges that "the sponsors of the raffle were acting as agents on behalf of their undisclosed principal Defendant, Florida Bank of Commerce of Clearwater, Florida." The Court finds that no genuine issue of material fact exists to support the Plaintiff's claim of an agency relationship between the Academy and FBC.
When the existence of an agency relationship is in issue, the burden of proving such agency is upon the party who asserts it. Gardner Plumbing, Inc. v. Cottrill, 44 Ohio St.2d 111, 338 N.E.2d 757 (1975). The test as to whether a person is the agent of another is the right of control which the purported principal exercises over its purported agent. Ross v. Burgan, 163 Ohio St. 211, 126 N.E.2d 592 (1955); Haluka v. Baker, 66 Ohio App. 308, 34 N.E.2d 68 (1941). In order to avoid summary judgment, the Plaintiff must show that a genuine issue of fact exists regarding the control that FBC allegedly exercised over the Academy. On this issue, the Plaintiff has offered a portion of the deposition of E. Joseph Strickler[2] in which Mr. Strickler testifies that FBC, when it sent the title to the Cord to the Academy, endorsed the title in blank. The Plaintiff *42 contends that this shows that the Academy was never to acquire title to the automobile, and that title was meant to flow directly from FBC to the ultimate winner. The Court is not persuaded by this argument.
The fact that FBC transmitted an open title does not in any way infer that FBC had control over the Academy. The Court further finds that the affidavits of Mr. Ross and Mr. Strickler do not create any issue of fact concerning control of the Academy by FBC. Accordingly, the Defendant's Motion for Summary Judgment as to Count II is sustained.
Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is sustained in its entirety and judgment is to be entered for the Defendant and against the Plaintiff.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTES
[1] The advertisement placed by FBC in the "Robb Report" read:
1981 CORD
Handcrafted factory demo. One of only seven built by Southeastern Replicars. Last sale $65,000.00. Built on Olds Toranado 350 CID V-8 and running gear. Front-wheel drive is original. Looks identical to 1937 812 Cord Phaeton. Includes automatic transmission, power steering, brakes, windows, seats, hood and deck, air conditioning and AM/FM radio. Yellow/red interior. Perfect. Priced at $49,500.00
[2] Although the deposition of Mr. Stickler was read and considered by the Court, it should be noted that the deposition was not filed with the Court nor was it properly authenticated by way of an affidavit. As such, the deposition was not proper material under Rule 56.
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710 F.2d 839
*U. S.v.McDaniel
82-8518
UNITED STATES COURT OF APPEALS Eleventh Circuit
7/7/83
1
N.D.Ga.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 11th Cir. R. 23.
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866 F.2d 1422
Murrayv.Stafford
NO. 88-7208
United States Court of Appeals,Eleventh Circuit.
JAN 13, 1989
1
Appeal From: N.D.Ala.
2
REVERSED IN PART AND VACATED IN PART.
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925 P.2d 954 (1996)
CITY OF SOUTH SALT LAKE, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton, Petitioners,
v.
SALT LAKE COUNTY, Respondent.
MIDVALE CITY, a municipal corporation, City of West Jordan, a municipal corporation, and Liane Stillman, Petitioners and Appellees,
v.
SALT LAKE COUNTY, a body politic, Sherrie Swensen, Salt Lake County Clerk, and Douglas R. Short, Salt Lake County Attorney, Respondents and Appellees.
Sherrie SWENSEN, Salt Lake County Clerk, and Salt Lake County, a body politic, Petitioners,
v.
The Honorable J. Dennis FREDERICK of the Third District Court in his official capacity; City of West Jordan, a municipal corporation; Midvale City, a municipal corporation; and Liane Stillman, an individual, Respondents.
Nos. 960325, 960330, 960391, 960392 and 960331.
Supreme Court of Utah.
October 18, 1996.
Rehearing Denied November 11, 1996.
*955 Kevin R. Watkins, South Salt Lake, and David L. Church, Salt Lake City, for South Salt Lake, City of Draper, Sandy City, City of Riverton, Murray City, Town of Alta, Sharon Brinton, and Linda Norton.
Douglas R. Short, Gavin J. Anderson, Kent S. Lewis, Dahnelle Burton-Lee, Patrick F. Holden, Salt Lake City, for Salt Lake County parties.
Jody K. Burnett, George A. Hunt, Salt Lake City, and Martin Pezely, Midvale, and Greg Curtis, West Jordan, for Midvale City and City of West Jordan.
Kent B. Linebaugh, Jeffrey Devashrayee, Salt Lake City, for Liane Stillman.
Earl D. Tanner, Sr., Earl D. Tanner, Jr., Anthony L. Rampton, Robert A. Garda, Jr., E. Craig Smay, Salt Lake City, for numerous intervenors.
ZIMMERMAN, Chief Justice:
These matters involve an appeal from a remand to the trial court of a question of statutory interpretation initially brought before this court by a combination of interlocutory appeals and extraordinary writs filed in early August of this year seeking review of a decision of the trial court staying township elections scheduled for August 6, 1996. Although the parties are varied,[1] for purposes *956 of discussion the cases may be lumped into two categories: (i) the Holladay and Kearns Township election litigation, involving the City of West Jordan and those aligned with it,[2] i.e., those with pending annexation or incorporation petitions in the proposed Holladay and Kearns Township elections; and Salt Lake County and those aligned with it;[3] and (ii) the other eight township elections, involving the City of South Salt Lake and those aligned with it;[4] and Salt Lake County. One issue was common to all ten township elections: as to eight of them, it was the only issue. That question is the class of persons from which a majority must be drawn for the township proposal to carry. Does section 17-27a-104(2)[5] of the Utah Code, enacted in 1996, require a majority of all the registered voters within the area proposed for township status or only a majority of the registered voters in the area who actually voted? In the Holladay Township election, the Kearns Township election, and the litigation pertaining to them, other questions were raised regarding the propriety of Salt Lake County's failure to deal with the following issues prior to the township elections: (i) Midvale City's proposed annexation of a part of the proposed Holladay Township; (ii) a petition to incorporate the city of "The Cottonwoods" in a part of the proposed Holladay Township; and (iii) the City of West Jordan's proposed annexation of a part of the proposed Kearns Township.
In an order issued on August 6, this court granted an interlocutory appeal; treated a petition for extraordinary relief as a petition for declaratory judgment; stayed the trial court's order blocking the August 6, 1996, elections; and directed that the elections proceed in the ten Salt Lake County township areas which were the subject of the legal actions, but that the ballots pertaining to all ten elections be sealed, stored, and not counted until further order of this court. The interlocutory appeal and the petition for extraordinary relief were both remanded to the trial court for further proceedings and a determination of all claims. We directed that these cases be consolidated before a single judge. We also directed that the one question common to all ten township elections be decided within thirty days so that the matter could be brought back to this court for resolution.
The elections were held and the ballots sealed as directed by this court. On remand, the district court concluded that the language of section 17-27a-104(2) was ambiguous and that it should be interpreted to require a simple majority of those actually voting to form a township. The City of West Jordan, Midvale City, and those representing the proposed city of The Cottonwoods filed petitions for interlocutory appeal in this court; the Holladay Township petitioners filed a motion to lift stay; the Emigration Township Committee filed a motion to amend interim order; the Magna, Granite, White City, and Emigration Community Councils filed a motion to open and count ballots; and Salt Lake County filed a motion to amend order. Because the district court's ruling applied to all ten township elections, interlocutory appeals were taken in the cases of the proposed Holladay Township and the proposed Kearns Township, where other issues still remain *957 before the trial court. Consequently, we have before us a direct appeal in those cases where no other issues remain and an interlocutory appeal in the cases of the proposed Kearns and Holladay Townships. This court then directed that the question of the appropriate interpretation of 17-27a-104(2) be briefed on an expedited basis and heard as quickly as possible. The matter was argued on October 1, 1996.
We now hold that section 17-27a-104(2) is not ambiguous and requires that a majority of all registered voters within the area proposed for township status must vote in favor of the proposal. A simple majority of those casting ballots is insufficient under the statute. Accordingly, we reverse the district court and remand for further proceedings the matters involving the proposed annexations by Midvale and West Jordan and the proposed Cottonwood incorporation. Our order of August 6, 1996, is modified to direct that the county clerk proceed to count the ballots in the township elections concerning which no legal issues remain before the district court. We further direct the district court to consider whether it wishes to permit the ballots to be counted in the two township elections which still remain before it, to wit, those involving the Midvale and West Jordan annexations and the proposed Cottonwood incorporation. If the trial court concludes that those ballots should be counted before this litigation is entirely resolved, it may so order. Our order of August 6 will remain in effect as to the Holladay and Kearns township elections until the matter is addressed by the district court.
Moving to the merits: The district court granted the County's motion for summary judgment. In reviewing a grant of summary judgment, "`we accord no deference to the trial court's resolution of the legal issues presented.'" Harline v. Barker, 912 P.2d 433, 438 (Utah 1996) (quoting K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994)). The proper interpretation of section 17-27a-104(2) is a matter of law to be resolved by this court. State v. Pena, 869 P.2d 932, 936 (Utah 1994); Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). That statute provides that "[i]f a majority of the registered voters within the area proposed for township status vote in favor of the proposal, the area shall immediately acquire township status as provided in this part." The City of West Jordan contends that the statute is clear: It requires affirmative votes of a majority of all registered voters within the area proposed for township status.
The County contends that these words should not be read literally because in virtually all situations, elections are determined by a majority of the votes actually cast, not by a majority of those entitled to vote. The County argues that we should therefore interpret the statute as though it read that "[i]f a majority of the registered voters within the area proposed for township status [who actually cast ballots] vote in favor of the proposal, the area shall immediately acquire township status as provided in this part." (Proposed additional language bracketed.) In support of its arguments, the County cites some expressions of sentiment by selected legislators made during the final part of the 1996 session, when this provision was first proposed and quickly enacted. The County also argues that its interpretation accords with our decision in Nowers v. Oakden, 110 Utah 25, 169 P.2d 108 (1946), where we interpreted a statute requiring the passage of a county fence ordinance by a "majority of all the legal voters" in the county to include only a majority of those actually voting. For the reasons described below, we reject both arguments.
The applicable principles of statutory construction are clear. "We look first to the plain language of the statute to discern the legislative intent.... `Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy consideration.'" Gohler v. Wood, 919 P.2d 561, 562-63 (Utah 1996) (quoting World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994)); accord Schurtz, 814 P.2d at 1112. A review of the plain language of the statute in question reveals no ambiguity. The words "a majority of registered voters within the area proposed for township status" are clear and unambiguous. Black's Law Dictionary defines "registered voters" *958 as "[p]ersons whose names are placed upon the registration books provided by law as the record or memorial of the duly qualified voters of the state or county." Black's Law Dictionary 1284 (6th ed.1990). The term "registered voters" is not of uncertain meaning and is used in many of our statutes to define a class of persons. See, e.g., Utah Code Ann. §§ 10-2-109, XX-X-XXXX, 17A-2-409, 17A-2-1166, 20A-9-404. Because the statute is unambiguous on its face, no inquiry into the legislative history or policy concerns underlying the statute is necessary.
The County contends that applying the statute as written would create an absurd result. Specifically, it contends that because of deaths and moves on any given day, it may be impossible to be absolutely certain whether the registration rolls actually reflect the names of those entitled to vote. Therefore, it argues that we must conclude that there is ambiguity here and reach a construction that the County would prefer, to wit, a simple majority of those casting ballots. We find nothing inherently absurd in the result dictated by the plain language of the statute. "Registered voters" means those registered, not those eligible to register. The term fixes with reasonable certainty the membership of the class. Any inadequacy in county record keeping cannot be used to justify rejecting the legislature's choice of the class of persons to be counted.
There are other situations in the context of the creation or modification of boundaries of local government units where the outcome is, at some stages, determined by reference to a majority of registered voters, as opposed to those actually voting. For example, the statute providing for the creation of a town requires a petition signed by a majority of the registered voters of an unincorporated area proposed for incorporation as a town. Utah Code Ann. § 10-2-109. The difficulties the County raises are equally applicable and equally irrelevant to the validity of that statute and to this. We therefore find nothing inherently infeasible in the legislature's choice of all registered voters as the class of persons from among whom a majority must be garnered to create a township.
And there are other instances in statute where the creation or enlargement of local government units depends upon the favorable opinions of a class of persons other than a simple majority of those casting ballots. For example, House Bill 120, which passed during the 1996 session and which contained not only the language at issue in this case but also provisions amending other portions of the incorporation and annexation statutes, contains a provision adding section 10-2-102.3 to the Code.[6] This section pertains to the exclusion of certain property from an area proposed for annexation. Exclusion can be obtained by a petition containing "the legal signatures of over 50% of the owners of real property and the owners of at least 1/3 of the value of real property, as shown on the last assessment rolls, in each voting precinct within the area to be excluded." Plainly, the legislature has by this section permitted a group of property owners which is likely to be far smaller than a majority of the registered voters in the area in question to determine the outcome of a selection of the mode of government affecting that area.
Accordingly, it is equally appropriate that we defer to the legislature's choice of language in section 17-27a-104(2), defining the class from which a majority of votes must be drawn to create a township. The legislature is entitled to a range of choices as to how issues concerning the formation or expansion of local government units are to be decided. There is no rule that a majority of those voting wins. It is not our place to conclude that because the choice of all registered voters as the relevant class in section 17-27a-104(2) is somewhat unusual, the legislature must have made a mistake. Moreover, easily presuming a mistake, as the County does, seems particularly inappropriate when the legislature's creation of this new form of local government unit the township was done in the context of what we can judicially notice was intense debate and discussion, within the legislature and without, over the relative *959 roles of citizens in unincorporated areas, the county government, and the local municipalities, and their relative orders of priority in local government matters. This debate ensued after our decision in Nelson v. Salt Lake County, 905 P.2d 872 (Utah 1995), where we declared inoperative certain provisions of section 10-2-102.8, which pertained to the incorporation of new municipalities. Id. at 876. In light of this intense political debate, it would be presumptuous of us to assume that the resulting legislation did not reflect the intention of the legislature.
The County relies heavily on this court's decision in Nowers v. Oakden, 110 Utah 25, 169 P.2d 108 (1946), where we interpreted a county ordinance that required a vote of "the majority of all the legal voters" in the county before a local fence law could be enacted. In that case, we held valid a county election, the results of which established a fence law by a majority of those voting, despite the plaintiff's contention that the statute providing for such elections required approval by a majority of all voters in the county qualified to register to vote. Id. 169 P.2d at 114, 118. The County argues that our opinion in that case requires us to hold today that the term "registered voters" means "registered voters voting in the election," just as we held the term "legal voters" to mean "legal voters voting in the election" in Nowers. We conclude that Nowers is distinguishable from the present case.
The term "legal voters" was one capable of multiple interpretations. The plaintiff in Nowers contended that the county was required to hold a special-election registration so that all voters who met the requirements for registration ("legal voters") could vote in the special election. Id. at 117. The county had simply used the voter registration lists in effect at the time of the last general election. Id. The court resolved this ambiguity in favor of the county, determining that "[n]o showing was made in the court below that non-registered legal voters in sufficient number to change the result, or at all, were deprived of the right to vote at the election in question." Id. at 118. Thus, the court in Nowers was presented with a statutory ambiguity which is not present here.[7] The statute here uses the term "registered voters," a term that is common and of clear meaning.
The remaining issue before the court is raised by the City of West Jordan. It argues that if we hold for the County, we must reach the question of whether the notice of election issued by the County misled voters. Specifically, it is argued that the notice incorporated by reference section 17-27a-104(2) and thereby informed potential voters that unless a majority of all registered voters approved the petition, it would fail. This may have induced some voters to stay home and thereby distort the results of the actual balloting. Because we resolve this case against the County's claims, we find no defects in the notice of election. It properly referred to the statute which required a majority of all registered voters to approve the petition. This notice was not defective.
In light of the foregoing, we rescind that portion of our August 6, 1996, order to the extent that it forbade the counting of the ballots in those township elections where the only issue in litigation was the class of persons from whom a majority of votes needed to be obtained. However, as to the cases involving the Holladay and Kearns township elections, which raise questions regarding the proper processing of the annexation and incorporation petitions pending at the time the township elections were held, cases numbered 960325, 960330, and 960331, we leave our order of August 6, 1996, in place. All cases before us are remanded to the Third District Court. The judge of that court to whom these matters are assigned may, following consideration of the question whether the stay should remain in effect for the duration of that litigation, modify or lift the provisions of our August 6, 1996, order as it *960 applies to the Holladay and Kearns township elections.
We wish to take this opportunity to thank the district court and the parties and their counsel for the speedy and cooperative manner in which this litigation has proceeded. Although feelings plainly ran high, all behaved with courtesy and acted with celerity.
HOWE, DURHAM, and RUSSON, JJ., concur in Chief Justice ZIMMERMAN'S opinion.
STEWART, Associate C.J., concurs in the result.
NOTES
[1] The parties to this case, all consolidated under Supreme Court No. 960325, are as follows:
Pre-election cases
No. 960325, Petition for Extraordinary Relief: City of South Salt Lake, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton v. Salt Lake County, with intervenors Delpha A. Baird, Kent H. Saxey, and Janet Geyser for Holladay Township; White City, for North White City Township and South White City Township; Kearns Township Committee; and various candidates for the Kearns Township Planning and Zoning Board.
No. 960330, Petition for Interlocutory Appeal: City of West Jordan, Midvale City, and Liane Stillman v. Sherrie Swensen, Salt Lake County Clerk, Douglas R. Short, Salt Lake County Attorney, and Salt Lake County, with intervenor Kearns Township Committee.
No. 960331, Petition for Extraordinary Relief: Sherrie Swensen, Salt Lake County Clerk, and Salt Lake County v. The Honorable Judge J. Dennis Frederick, in his official capacity, City of West Jordan, Midvale City, and Liane Stillman.
Post-election cases
No. 960391, Petition for Interlocutory Appeal: Liane Stillman v. Salt Lake County; Sherrie Swensen, Salt Lake County Clerk; and Douglas R. Short, Salt Lake County Attorney.
No. 960392, Petition for Interlocutory Appeal: City of West Jordan and Midvale City v. Sherrie Swensen, Salt Lake County Clerk, and Salt Lake County.
Further, after the election, the parties filed various motions, including Holladay Township's motion to lift stay; Emigration Township's motion to amend interim order; a motion to open and count ballots or expedite appeal filed by the community councils of Magna, Granite, White City, and Emigration; and Salt Lake County's motion to amend order.
[2] This category includes Midvale City and Liane Stillman, sponsor of the proposed city "The Cottonwoods."
[3] This category includes the various township committees and township sponsors who have intervened in these matters: Kearns Township Committee, Candidates for Kearns Township Planning and Zoning Board, Emigration Township Committee, Emigration Community Council, Holladay Township Petitioners, Magna Community Council, Granite Community Council, and White City Community Council.
[4] This category includes the proposed townships in Copperton, Emigration Canyon, Granite, South Granite, Magna, Southwestern, North White City, and South White City.
[5] This section was misnumbered in the enrolled copy of HB 120 but was correctly designated as Utah Code Ann. § 17-27a-104(2) in the 1996 Supplement to the Utah Code. Compare Local Government Changes, ch. 308, § 11, 1996 Utah Laws ___ with Utah Code Ann. § 17-27a-104(2) (Supp.1996).
[6] See Local Government Changes, ch. 308, § 3, 1996 Utah Laws ___. This legislation was enacted in response to our 1995 decision in Nelson v. Salt Lake County, 905 P.2d 872 (Utah 1995), in which we declared certain provisions of section 10-2-102.8 inoperable. Id. at 876.
[7] We also note that in Nowers, the issue before the court was only the mechanism for approving a fencing ordinance, not the creation of a new form of local government. Moreover, in Nowers we were asked to set aside an election that had already been held so that more voters could be qualified in an attempt to change the result. In the present case, the balloting has occurred but no one is aware of the results. Therefore, we are not being asked to set aside an election by the losers.
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615 F.2d 1358
U. S.v.Franklin
No. 79-5113
United States Court of Appeals, Fourth Circuit
2/8/80
1
N.D.W.Va.
REVERSED AND REMANDED
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41 F.3d 1
UNITED STATES of America, Appellee,v.Philip G. ARCADIPANE, Defendant, Appellant.
No. 94-1342.
United States Court of Appeals,First Circuit.
Heard Nov. 10, 1994.Decided Nov. 23, 1994.
Willie J. Davis, with whom Davis, Robinson & White, Boston, MA, was on brief, for appellant.
Robert E. Richardson, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
SELYA, Circuit Judge.
1
Defendant-appellant Philip G. Arcadipane appeals his conviction on multiple counts of mail fraud and making false statements. In the last analysis, the plethora of arguments that he advances, though ably presented, signify nothing of consequence. Accordingly, we affirm.
I. BACKGROUND
2
In April of 1988, while working for the United States Postal Service, appellant suffered a job-related psychiatric disability. He eventually filed a claim for benefits with the Office of Workers' Compensation Programs (OWCP) of the United States Department of Labor (DOL). He received his first disability check in February of 1989, retired from the Postal Service eight months later, and continued to receive disability payments thereafter.
3
Prior to the onset of his disability, appellant had been repairing firearms and reloading shell casings as a for-profit sideline. In connection with its initial processing of the disability claim, OWCP wrote to him in June of 1988 requesting information about extra-curricular employment activities. After consulting with counsel, appellant explained that his sideline business had been reorganized and that he was no longer gainfully employed in it.1 OWCP did not press the point at that time.
4
In 1990, 1991, and 1992, OWCP requested appellant, in conjunction with his ongoing receipt of compensation benefits, to complete Form 1032. This is a standardized form designed to obtain historical information regarding benefit recipients' income from sources such as employment and self-employment. OWCP uses the data to compute benefit levels.
5
On September 7, 1990, after again consulting with counsel, appellant submitted a completed Form 1032 to OWCP. He made similar submissions on September 7, 1991, and August 20, 1992.2 Each time he stated that he "had not been employed for the previous twelve months," and that he "had been unemployed during the previous fifteen months."
6
In 1992, DOL launched an investigation of appellant's business activities. In May, an agent posing as a purchasing officer for an out-of-state police department contacted appellant and, after some negotiations, ordered 20,000 rounds of ammunition. The "purchaser" arranged to pick up the order at appellant's home. Upon his arrival, however, he whipped out a search warrant instead of a requisition, combed the premises, and seized various incriminating business records (including income tax returns).
7
Soon thereafter, a federal grand jury returned a 31-count indictment against appellant. Twenty-eight counts charged mail fraud in violation of 18 U.S.C. Sec. 1341 (1988), on the theory that appellant had wrongfully obtained money through the mails (specifically, 28 monthly disability checks) by "falsely [claiming] that [he] was not employed and that [he] was unemployed." The remaining three counts charged appellant with making false statements (one for each Form 1032 that he submitted to OWCP) to the effect that he was "unemployed".
8
A jury convicted appellant on all counts, and OWCP suspended benefit payments. This appeal ensued.
II. ANALYSIS
9
Appellant has advanced several asseverations in support of his appeal. We deal with them seriatim.
10
A. OWCP's Authority.
11
Appellant maintains that his convictions under the false statement statute cannot stand.3 He constructs the following syllogism: (1) inasmuch as he was totally disabled during the time frame covered by the indictment, his situation is controlled by 5 U.S.C. Sec. 8105(a) (which provides in relevant part that, when an employee's "disability is total, the United States shall pay the employee during the disability monthly monetary compensation"), (2) section 8105 does not specifically authorize DOL to prod benefit recipients to report earnings from employment and self-employment;4 and, therefore, (3) the government had no authority to request the information that it now asserts appellant falsely supplied. He adds, moreover, that because 5 U.S.C. Sec. 8105 did not authorize the solicitation of earnings information, he had no way of knowing that section 1001 applied to Form 1032, and thus did not receive fair warning that inscribing false statements on the form could subject him to a federal criminal prosecution. We do not find either facet of this argument persuasive.
12
1. Lack of Authority. It seems self-evident that section 1001 is intended to promote the smooth functioning of government agencies and the expeditious processing of the government's business by ensuring that those who deal with the government furnish information on which the government confidently may rely. To this end, section 1001 in and of itself constitutes a blanket proscription against the making of false statements to federal agencies. Thus, while section 1001 prohibits falsification in connection with documents that persons are required by law to file with agencies of the federal government, see, e.g., United States v. Dale, 991 F.2d 819, 828-29 (D.C.Cir.) (involving a fraudulent application for a Department of Defense security clearance), cert. denied, --- U.S. ----, ----, 114 S.Ct. 286, 650, 126 L.Ed.2d 236 (1993), its prohibitory sweep is not limited to such documents. The statute equally forbids falsification of any other statement, whether or not legally required, made to a federal agency. See United States v. Meuli, 8 F.3d 1481, 1485 (10th Cir.1993) (explaining that section 1001 "prohibits false statements whether or not another law requires the information be provided"), cert. denied, --- U.S. ----, 114 S.Ct. 1403, 128 L.Ed.2d 76 (1994); United States v. Kappes, 936 F.2d 227, 231 (6th Cir.1991) (explaining that section 1001 itself provides "clear statutory authority to justify holding [persons] to the reporting requirement"); United States v. Olson, 751 F.2d 1126, 1127 (9th Cir.1985) (per curiam) (holding that section 1001's prohibition of false statements is not restricted to those that are submitted pursuant to some (other) specific statutory requirement); see also United States v. Corsino, 812 F.2d 26, 31 (1st Cir.1987) (holding sub silentio to same effect).
13
Applying this rationale to the case at hand, we conclude that the "lack of authority" issue is a red herring. Under section 1001, the government does not need to show that it had some particular extrinsic authority to request the information falsely provided by the defendant. Consequently, whether DOL or OWCP had the specific statutory authority to seek employment and self-employment data from appellant is irrelevant to the validity of the convictions under review.
14
2. Fair Warning. The second prong of appellant's assignment of error posits that, because the benefits he received under 5 U.S.C. Sec. 8105 were not conditioned by statute upon his truthful completion of Form 1032, he did not receive fair warning that inscribing false statements on that form would expose him to criminal charges. Appellant's protest lacks force.
15
To be sure, the Due Process Clause forbids the government from depriving an individual of his liberty by reason of specified conduct unless he is given fair warning of the consequences of that conduct. See Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977); United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994). Fair warning thus requires that a criminal statute be sufficiently definite to apprise a person of ordinary intelligence that his anticipated behavior will transgress the law. See United States v. Barker Steel Co., 985 F.2d 1123, 1129 (1st Cir.1993). Fair warning, however, does not mean that the first bite is free, nor does the doctrine demand an explicit or personalized warning. Although a prospective defendant is entitled to notice of what behavior will be deemed to infract the criminal code, the fair warning doctrine neither excuses professed ignorance of the law nor encourages deliberate blindness to the obvious consequences of one's actions. See Gallo, 20 F.3d at 12.
16
In this instance, appellant had ample warning because section 1001 is clear on its face. The Court held as much in United States v. Yermian, 468 U.S. 63, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984), a case in which the defendant made false statements on a form provided by his employer. The employer, unbeknownst to the defendant, later forwarded the form to the Department of Defense. In affirming the defendant's conviction, the Court held that section 1001 "unambiguously dispenses with any requirement that the Government also prove that [the false] statements were made with actual knowledge of federal agency jurisdiction." Id. at 69, 104 S.Ct. at 2940 (citations omitted). Under Yermian, the plain language of section 1001 constitutes a constitutionally sufficient warning.
17
We think that the instant case is even stronger than Yermian. Here, appellant knew that Form 1032 originated with a government agency. He had every reason to believe that the continued receipt of government funds--his disability benefits--depended, at least in part, on his responses. Form 1032 itself placed appellant on notice, through a warning conspicuously printed on the front page of the form, that he must make honest answers to the questions, regardless of who would later read the completed document. In short, appellant's claim that he was not adequately forewarned rings surpassingly hollow.
18
B. Variance.
19
The indictment charged, inter alia, that appellant falsely stated on Form 1032 that he was "unemployed." Appellant complains that the prosecutor told the jury that it could convict not only if it found appellant to have been "employed," but also if it found appellant to have been "self-employed." In appellant's view, this is a fatal variance between the indictment and the proof at trial. We think that the reports of the indictment's demise are greatly exaggerated.
20
Appellant's contention suffers from two vices. First, he did not raise it in the district court--appellant did not object to the introduction of evidence regarding his self-employment, and never presented the alleged discrepancy between the charge and the evidence to the trial judge by motion or otherwise--and he has, therefore, waived the point. See, e.g., United States v. Slade, 980 F.2d 27, 31 (1st Cir.1992) (holding that "a party is not at liberty to articulate specific arguments for the first time on appeal simply because the general issue was before the district court"); United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) (similar).
21
In addition to being procedurally defaulted, appellant's contention is substantively wanting. A variance occurs when the proof at trial portrays a scenario that differs materially from the scenario limned in the indictment. See United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir.1993); United States v. Moran, 984 F.2d 1299, 1304 (1st Cir.1993). A variance requires reversal of a conviction only if it is both material and prejudicial, for example, if the variance works a substantial interference with the defendant's right to be informed of the charges laid at his doorstep. See Vavlitis, 9 F.3d at 210; United States v. Sutherland, 929 F.2d 765, 772 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 83, 116 L.Ed.2d 56 (1991). We afford plenary review to the question of whether an asserted variance requires retrial. See United States v. Cardall, 885 F.2d 656, 670 (10th Cir.1989); see also 2 Steven A. Childress & Martha S. Davis, Federal Standards of Review Sec. 11.32, at 125 (1992).
22
We see no cognizable prejudice here. When, as now, an indictment gives a defendant particular notice of the events charged, and the proof at trial centers on those events, minor differences in the details of the facts charged, as contrasted to those proved, are unlikely to be either material or prejudicial. See, e.g., United States v. Morrow, 39 F.3d 1228, 1235 (1st Cir.1994). So it is here: self-employment is merely one form of employment, and a person who is either employed or self-employed could not be said in any meaningful sense to be "unemployed." Whatever slight difference may exist between employment and self-employment cannot support the weight of the claimed variance.
23
We are fortified in this conclusion because the record makes transpicuously clear that appellant at all times understood his statements about both employment and self-employment to be at issue. For example, the government, in its opening discourse, told the jury the evidence would show that appellant "stated that he was not employed or self-employed...." Appellant did not object to this assertion. He likewise did not object during the trial as the government placed into evidence his statements regarding self-employment. Appellant's persistent failure to object belies his afterthought claim that he was misled. So does defense counsel's opening statement, in which he advised the jury:
24
The gist of the charge is the fact that he is accused of filing on Form 1032 a statement that he was not employed and not self-employed. The government says that he was self-employed, and that the answers that he filed, indicating that he was not, deceived the government. [Emphasis supplied.]
25
By like token, both attorneys discussed self-employment in their summations.
26
To reverse a conviction on the basis of a variance we must find that the variance caused a defendant to be misinformed of the charges against him or otherwise affected his substantial rights. See Vavlitis, 9 F.3d at 210; United States v. Fisher, 3 F.3d 456, 462 (1st Cir.1993); Moran, 984 F.2d at 1304; Sutherland, 929 F.2d at 772. Appellant's claim of variance does not come close to meeting this criterion.
27
C. Materiality.
28
In order to sustain a conviction under 18 U.S.C. Sec. 1001, the government is required to prove not only that the defendant's statements were false, but also that they were material. See Corsino, 812 F.2d at 30; United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir.1985); cf. United States v. Scivola, 766 F.2d 37, 44 (1st Cir.1985) (holding to like effect in prosecution for perjury). The district court decided the question of materiality rather than asking the jury to decide it. Appellant fulminates that the court erred in following this protocol, and suggests that determinations of materiality should be consigned to the jury's exclusive province. He is incorrect.
29
Materiality in a "false statement" case is a question of law to be determined by the court. See, e.g., United States v. Daily, 921 F.2d 994, 1004-06 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991); United States v. Bullock, 857 F.2d 367, 370-71 (7th Cir.1988); United States v. Hansen, 772 F.2d 940, 950 (D.C.Cir.1985), cert. denied, 475 U.S. 1045, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986); United States v. Bryant, 770 F.2d 1283, 1290 (5th Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct. 1235, 89 L.Ed.2d 343 (1986); United States v. Greber, 760 F.2d 68, 73 (3d Cir.), cert. denied, 474 U.S. 988, 106 S.Ct. 396, 88 L.Ed.2d 348 (1985); United States v. Norris, 749 F.2d 1116, 1121 (4th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 496 (1985); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984); United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir.1983). We have heretofore adopted this view, see Corsino, 812 F.2d at 31 n. 3; see also United States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir.1989) (stating in perjury prosecution "that the materiality of perjurious testimony is within the exclusive domain of the court, not the jury"), and continue to believe that it is correct. We recognize that one circuit has maintained a different stance. See United States v. Gaudin, 28 F.3d 943, 943-44 (9th Cir.1994) (en banc) (adhering to United States v. Valdez, 594 F.2d 725, 728-29 (9th Cir.1979)), cert. granted in part, --- U.S. ---, 115 S.Ct. 713, --- L.Ed.2d --- (1995) (No. 94-514), cert. denied, --- U.S. ---, 115 S.Ct. 745, --- L.Ed.2d --- (No. 94-6571) (1995). With respect, we consider the Ninth Circuit cases to be wrongly decided and, as have so many of our sister circuits, we decline to follow them. We conclude, therefore, that the trial court did not err in withholding the question of materiality from the jury.
30
Appellant's fallback position is that his false statements did not surpass the materiality threshold. However, the test for materiality is not stringent:
31
[M]ateriality requires only that the fraud in question have a natural tendency to influence, or be capable of affecting or influencing, a governmental function. The alleged concealment or misrepresentation need not have influenced the actions of the Government agency, and the Government agents need not have been actually deceived.
32
Corsino, 812 F.2d at 30 (quoting United States v. Markham, 537 F.2d 187, 196 (5th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977)); see also Notarantonio, 758 F.2d at 787; cf. Scivola, 766 F.2d at 44 (articulating equivalent test in perjury case). Here, the false statements easily qualify as material.
33
Statements made on Form 1032 have a natural tendency to affect benefit levels. An OWCP claims examiner testified at trial that any reported "changes in [recipients'] employment activity ... would change their entitlement to the amount of compensation that they [had] been receiving." Based on this testimony alone, the district court did not err in finding appellant's false statements to be material.
34
D. The Jury Instructions.
35
Appellant assigns error to the lower court's charge in two respects. First, he maintains that the court blundered when it refused to give his requested "good faith" instructions. Second, he complains that the court strayed beyond the pale in discussing the function of appellate courts vis-a-vis jury verdicts. Neither thesis withstands scrutiny.
36
1. Good Faith. Appellant suggested two "good faith" instructions at the close of trial.5 The judge refused to adopt these suggestions verbatim. Appellant now asserts that the judge's failure to instruct the jury in accordance with the precise language that appellant recommended constituted reversible error. We think not.
37
It is a settled rule that "jury instructions are to be evaluated in the context of the charge as a whole, and a defendant has no absolute right to the use of particular language." United States v. Dockray, 943 F.2d 152, 154 (1st Cir.1991); accord Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973); United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). The language that the district court actually used in its charge--especially certain language that we have set forth in the margin6--was more than adequate to protect appellant's rights. The charge explicitly mentioned both good faith and appellant's reliance on counsel in the course of submitting the forms. Moreover, other parts of the court's instructions unambiguously put the jury on notice that the government had to prove beyond a reasonable doubt that appellant knew the statements were false when made, and that he intended to defraud DOL by his answers. No more was exigible. See Dockray 943 F.2d at 155; Nivica, 887 F.2d at 1124-25; see also New England Enters., Inc. v. United States, 400 F.2d 58, 71 (1st Cir.1968) (holding that a forthright instruction on specific intent is ordinarily a sufficient response to a defendant's request for a good faith instruction), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969).
38
In sum, a defendant who has fully preserved his rights is entitled to a charge that fairly apprises the jury of the elements of the offense, the presumption of innocence, the burden and quantum of proof, and such theories of defense as may be supported by the evidence. He is not entitled to the nuances of phrasing that he finds most soothing.
39
2. The Court's Comment. Appellant's final assignment of error concerns a portion of the charge in which the court said:
40
You are the judges of the facts, and I will leave to you entirely the judgment of the facts. I ask you to leave to me entirely the judgment as to the law.
41
You should also understand that if I am in error, there is a higher court that can and cheerfully will reverse me. However, there is no higher court that will review your judgment of facts. You are the only, the final judges of the facts in this case.
42
Appellant argues that this commentary lessened the government's burden of proof by easing the jury's sense of responsibility. Being told explicitly that appellate review is available by a court that is prepared "cheerfully" to set aside the verdict, appellant reasons, makes jurors less responsible, ergo, more prone to convict, bolstered by the knowledge that if the defendant is innocent the jury's mistake likely will be repaired by a panel of appellate judges.
43
Instructing a criminal jury about the appellate process is a fairly prevalent practice among trial judges. Nonetheless, such instructions are usually unnecessary, and we counsel against them unless there is some special reason to give such instructions in a particular case. See, e.g., United States v. Greenberg, 445 F.2d 1158, 1162 (2d Cir.1971) ("It might have been better procedure not to have told the jury ... '[not] to worry' because this court would reverse if there were error."); Commonwealth v. Burke, 376 Mass. 539, 382 N.E.2d 192, 195 (1978) ("[I]n the absence of special circumstances, the judge should not refer to the appellate process."). Be that as it may, reversal does not follow automatically merely because a trial judge succumbs to a bad idea. Thus, instructions anent the appellate process do not ordinarily constitute error as long as they are accurate. See, e.g., United States v. Ferra, 900 F.2d 1057, 1060 (7th Cir.1990) ("Truth usually promotes the operation of the judicial system. Jurors need not be left to wonder about the allocation of tasks between trial and appellate courts."), cert. denied, --- U.S. ----, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992); see also United States v. Miceli, 446 F.2d 256, 259-60 (1st Cir.1971) (finding no error in an instruction that "merely indicated to the jury that it had no responsibility as to questions of law").
44
Challenges to instructions regarding the function of appellate courts should be treated like other challenges to the charge: the court of appeals must examine the charge as a whole to determine if the judge balanced the instructions, correctly informed the jurors of the governing law, imbued the jurors with an appropriate sense of responsibility, and avoided undue prejudice. In this case, surveying the charge in its entirety persuades us that the challenged comments were unlikely either to have confused the jurors or to have camouflaged the solemnity of their task. Indeed, the judge's instruction may well have impelled the jury to consider its determination of facts more, rather than less, cautiously; after all, the judge's remarks about the finality of the jury's factfinding function probably overstated the law.7 See, e.g., United States v. Loder, 23 F.3d 586, 592-93 (1st Cir.1994) (reversing jury verdict on grounds of evidentiary insufficiency). Therefore, the challenged instruction did not "dilute the [jury's] sense of responsibility but rather focus[ed] jurors on their true responsibilities." Ferra, 900 F.2d at 1061.
III. CONCLUSION
45
We need go no further. Appellant's asseverational array lacks merit. For aught that appears, appellant was fairly tried and lawfully convicted. The judgment below, must, therefore, be
46
Affirmed.
1
Appellant informed OWCP that his wife now owned the business; that it was not operating profitably; and that, when he assisted her at all, he did so without remuneration
2
Each form, by its terms, covered "the 12 months prior to the date of [the benefit recipient's] completion and signature."
3
The false statement statute provides:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be [punished as provided].
18 U.S.C. Sec. 1001 (1988).
4
Appellant contrasts section 8105 with a sister statute which specifically provides that:
The Secretary of Labor may require a partially disabled employee to report his earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies....
5 U.S.C. Sec. 8106(b) (1988).
5
One proposed instruction dealt with generic good faith in completing the forms. The second referred specifically to appellant's good faith reliance on the advice of counsel
6
The court framed the key question for the jury in the following way:
Did [the defendant] in good faith deny that he was employed or self-employed or has the government proven that he knew that the answer to the question was false and that he intended to defraud the Department of Labor?
In this connection, the court also told the jury that "the defendant has offered evidence that he acted on the advice of a lawyer when he told the government that he was not employed."
7
This is not a case like United States v. Fiorito, 300 F.2d 424 (7th Cir.1962), in which the trial judge diminished the jurors' role and diluted their collective sense of responsibility by assuring them that, if they forgot something, "that's part of the game.... That's why we have a court of appeals...." Id. at 426. To the contrary, the court's instruction here had precisely the opposite import
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED OCTOBER 28, 2016
NO. 03-16-00030-CV
Paul E. Copeland Jr., Appellant
v.
Federal National Mortgage Association, a/k/a Fannie Mae, Appellee
APPEAL FROM COUNTY COURT AT LAW OF BASTROP COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
AFFIRMED -- OPINION BY JUSTICE GOODWIN
This is an appeal from the judgment signed by the county court on November 2, 2015. Having
reviewed the record and the parties’ arguments, the Court holds that there was no reversible error
in the county court’s judgment. Therefore, the Court affirms the county court’s judgment. The
appellant shall pay all costs relating to this appeal, both in this Court and in the court below.
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549 P.2d 703 (1976)
In re Michael Gene TANNER, Jr., a minor.
Appeal of STATE DIVISION OF FAMILY SERVICES.
No. 14174.
Supreme Court of Utah.
May 3, 1976.
*704 Vernon B. Romney, Atty. Gen., Paul M. Tinker, Asst. Atty. Gen., Salt Lake City, for appellant.
Michael D. Shepard, of Salt Lake County Bar Legal Services, Salt Lake City, for minor.
CROCKETT, Justice:
The State Division of Family Services (herein called Family Services) appeals from an order of the juvenile court that it pay for corrective orthodontic treatment of Michael Gene Tanner, a minor. It contends: (1) that the juvenile court had no authority to enter the order, and (2) even if it did, Michael is ineligible to receive services.
Michael Tanner is a 16-year-old boy (born August 18, 1959) whose mother is dead and whose father has long since vanished from the scene. After it was determined that his parents had abandoned him, he was placed in the guardianship of Family *705 Services by order of the juvenile court on June 26, 1967. On July 31, 1971, upon the Division's motion, guardianship was placed with Mr. and Mrs. Melvin Edwards, in whose home Michael had been under foster care for a long time. Two years later, in July 1973, that guardianship was terminated and again given to Family Services; but Michael was still placed with the Edwards for foster care.
There is no dispute about the fact that Michael Tanner has a problem with his teeth which should be treated. It is described as: "severe protrusion of his upper incisors," i.e., what is sometimes referred to as "buck teeth." This causes no immediate hazard to his health. But there is the psychological problem which may affect his personality and adjustment in society; and also there is risk of the early loss of his teeth because of non-occlusion with his lower teeth. The proposed corrective treatment would take three to four years and cost between $800 and $1,500.
The matter of the failure of Family Services to accord him treatment for this condition was presented to the juvenile court by Attorney David Dolowitz, who had been appointed by the court to safeguard Michael's interest. Pursuant to a hearing on an order to show cause on June 2, 1975, the court ordered Family Services to provide the needed orthodontic services.
Family Services' argument that the juvenile court was without authority to make this order is based on the following restriction which the 1975 Appropriation Act places on its funds:
... funds appropriated to the Division of Family Services may not be expended for the purpose of support or other expense for a child placed in any institution, facility, home, school, or other setting or program, which is not licensed, regulated, or otherwise approved by the Division of Family Services pursuant to its regulations and policies.[1]
The answer on behalf of the minor is that the authority of the juvenile court to make the order derives from the general grant of power under Section 55-10-77, U.C.A. 1953, over dependent and neglected children without any limitation thereon. There is no doubt that Section 55-10-77(2)(a) gives the juvenile court jurisdiction over Michael who had been determined to be a neglected child.[2] This jurisdiction continued even after the Division was given guardianship, for a juvenile court retains jurisdiction over a neglected or dependent child until he reaches his majority;[3] and its power to inquire into and safeguard a child's welfare continues, regardless of the fact that a third party may be providing care.[4] This is consistent with the concept inherent in our law respecting children: that in a civilized society all children, even those without parents or a home, should be provided not only food, clothing and shelter, but other basic needs, including necessary medical and dental care.
When a child is without a home or parents this responsibility is imposed upon the Division of Family Services by Section 55-10-110, U.C.A. 1953:
(1) When legal custody of a child is vested by the court in an individual or agency other than his parents ... the court may ... inquire into the *706 ability of the parents, a parent, or any other person who may be obligated, to support the child and to pay any other expenses of the child, including the expense of any medical, psychiatric, or psychological examination or treatment provided under order of the court.
* * * * * *
(3) If the court finds that the parents are unable to pay for full or partial support, and other expenses of the child and that no other provision for the payment of such support and expenses has been made, ... the division of family services shall be responsible for the payment of such support and other expenses for the neglected, dependent, or delinquent child... . [Emphasis added.]
Because of the duty thus imposed upon Family Services and also because, as his guardian, it stands in loco parentis to this minor[5] it has the responsibility of providing him with his necessities; and when there is a serious failure therein, the remedy is to resort to the court as was done here. In that regard, we are duly appreciative of the fact that the juvenile court, the same as any other court, should be reluctant to intrude into the affairs of or interfere with the actions of an administrative agency. Nevertheless, when there is some such serious neglect relating to basic necessities as to put the health and welfare of a minor in hazard, there must be some remedy; and as will be seen from the statutes referred to above, this is the special responsibility of the juvenile court. Moreover, when the juvenile court has made its determination through proper procedure, this court will accord its findings and judgment the traditional presumptions of verity; and will not disturb them unless the appellant has sustained its burden of showing that they are in error.[6]
One further matter merits attention: Family Services asserts that the minor has not exhausted his administrative remedies by asking for a formal hearing before it as permitted by Sections 55-15a-25 and 55-15b-18, U.C.A. 1953. It is true that as a general rule he must do so before applying to a court for relief. Two comments are pertinent: First, it does not appear that this issue was raised before the juvenile court, in which instance we do not normally consider it on appeal.[7] Second, and more important, insofar as the justice of the cause is concerned: it appears that Mr. Dolowitz conferred and negotiated with the decision making officials of Family Services over a period of several months without being able to obtain the needed orthodontic services; and that only after it was clear that the efforts could not succeed did he resort to the court. It is a basic tenet of the law that one should not be required to do a useless thing.
In view of our conclusion as to the controlling issue in this case as set forth herein, we can see no useful purpose in discussing the respective contentions of the parties as to which provisions of the Federal Social Security Act have application to this minor and the care he is seeking.[8] It is sufficient to say that this and other matters urged by Family Services have been considered and are deemed to be *707 without sufficient merit to justify extending this decision, or to reverse the judgment.
Affirmed. No costs awarded.
ELLETT and MAUGHAN, JJ., concur.
TUCKETT, J., dissents.
HENRIOD, C.J., does not participate herein.
NOTES
[1] S.L.U., 1975, Ch. 216, item 161.
[2] This minor is both a neglected and dependent child. Sec. 55-10-64, U.C.A. 1953, subsection (17), defines a neglected child as one "... whose parent ... has abandoned him... ."; and subsection (18) defines a dependent child to include "... a child who is homeless... ." See the statement of policy in Sec. 55-10-63, U.C.A. 1953: "It is the purpose of this act to secure for each child coming before the juvenile court such care ... as will serve his welfare and ... assist him to develop in a responsible citizen... ."
[3] Jacob v. State, 7 Utah 2d 304, 323 P.2d 720 (1958); Stoker v. Gowans, 45 Utah 556, 147 P. 911 (1915).
[4] In re Olson, 111 Utah 365, 180 P.2d 210 (1947).
[5] Sparks v. Hinckley, 78 Utah 502, 5 P.2d 570 (1931); and see generally 39 Am.Jur.2d, Guardian & Ward, § 65.
[6] Foster v. Blake Heights Corp., 530 P.2d 815 (Utah 1974); Hardy v. Hendrickson, 27 Utah 2d 251, 495 P.2d 28 (1972).
[7] Hamilton v. Salt Lake County, etc., 15 Utah 2d 216, 390 P.2d 235 (1964).
[8] Family Services argued that it was not clear whether Michael was claiming under Title IV (42 U.S.C. § 601, et seq.) or Title XIX (42 U.S.C. § 1396, et seq.), and that the juvenile court could not, therefore, order it to make the expenditure.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1884
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jason Hill
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Joplin
____________
Submitted: February 14, 2014
Filed: May 7, 2014
____________
Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
____________
RILEY, Chief Judge.
A jury convicted Jason Hill of knowingly receiving and distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Count 1) and knowingly
possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count
2). Hill appeals, arguing the district court1 erred in denying, without a hearing, his
motion to suppress evidence seized from his computer, and denying his motion to
dismiss a charged count on double jeopardy grounds. Hill further argues the district
court2 erred in denying his motions for judgment of acquittal on both counts. With
appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On August 3, 2010, James Smith, a Cassville, Missouri, police officer
participating in a southwest Missouri cyber crimes task force investigating Internet
crimes against children, used LimeWire, an online “peer-to-peer” file-sharing
program, to access Hill’s computer. Officer Smith downloaded ten images of what
he believed to be child pornography from Hill’s shared folder on LimeWire.3 Based
on the files downloaded from Hill’s computer, Officer Smith, Task Force Officer
Brian Martin, and Special Agent James D. Holdman Jr. of the U.S. Department of
Homeland Security (DHS) obtained a federal warrant to search Hill’s residence for
child pornography.
The officers executed the warrant on September 28, 2010. When Hill answered
the door, the officers served the warrant and explained they were looking for evidence
of child pornography. After waiving, in writing, his rights prescribed by Miranda v.
Arizona, 384 U.S. 436 (1966), Hill admitted he had been downloading large amounts
1
The Honorable Richard E. Dorr, late United States District Judge for the
Western District of Missouri, adopting two reports and recommendations of the
Honorable James C. England, United States Magistrate Judge for the Western District
of Missouri.
2
The Honorable David Gregory Kays became Chief Judge of the United States
District Court for the Western District of Missouri on January 4, 2014.
3
Installing LimeWire automatically allowed Hill to share files with any other
LimeWire user in the world.
-2-
of adult pornography through LimeWire for about a year, but “initially denied ever
seeing any child pornography.” Hill told the officers he may have seen a “popup” for
what “he thought . . . might be child pornography” the night before the search, but
that “he deleted it immediately” as he always did with such “popups.” Hill’s story
changed over time.
As the interview progressed, the officers asked Hill whether he used search
terms frequently used to obtain child pornography—terms contained in the filenames
Officer Smith obtained from Hill’s computer. Hill admitted he may have
“accidentally typed ‘preteen’” as a search term in LimeWire late at night when it was
dark or when he was drunk. Hill stated he deleted any child pornography he
accidentally downloaded. When pressed, Hill admitted he intentionally used the
search term “preteen” and viewed at least one hundred images of child pornography,
one involving a child as young as five years old. Hill eventually told the officers he
viewed child pornography “once or twice a month” from March 2010 to the time of
the search “out of curiosity,” but asserted he did not save it.
The officers seized Hill’s computers, including the one on which Hill
admittedly downloaded adult and child pornography. Special Agent James Kanatzar,
a forensic examiner for DHS, inspected Hill’s computer and found evidence that files
containing child pornography had been downloaded and stored on Hill’s hard drive.
Agent Kanatzar found trace evidence that the files Officer Smith downloaded from
Hill’s computer had been on the hard drive before being deleted. Agent Kanatzar also
found three videos the jury determined to be child pornography in Hill’s LimeWire
directory, which made the files accessible to other LimeWire users. Agent Kanatzar
also found four files containing child pornography in the recycle bin on Hill’s
computer. Before being moved to the computer’s recycle bin, the files would have
been saved somewhere else on Hill’s hard drive. One of the images in the recycle bin
(Exhibit 40) matched one of the images Officer Smith downloaded on August 3, 2010
(Exhibit 10).
-3-
Hill was indicted on November 9, 2010, and arrested the next day. Before trial,
Hill moved to suppress the evidence seized from his computer, alleging the initial
contact with his computer was an unreasonable search and anything derived
therefrom was tainted. The district court denied the motion. Hill then moved to
dismiss either Count 1 or Count 2, arguing conviction on both counts would violate
his right against double jeopardy because possession of child pornography is a lesser-
included offense of receipt. The district court denied the motion, concluding there
was no double jeopardy issue because the possession and receipt charges “involve[d]
different files.” The district court denied Hill’s renewed motion to dismiss a count
at trial.
Hill’s three day trial began September 25, 2012. The government presented
testimony from the investigating officers and the forensic examiner describing their
interviews with Hill and the child pornography they found on his computer. The
government also showed the still images (Exhibits 4-13, 37-40) and played a portion
of each of the three videos from Hill’s computer (Exhibits 41-43) for the jury.
Maintaining his innocence, Hill took the stand in his own defense.
Unemployed after losing his job in the technical support division of AT&T Mobility,
Hill explained he supplemented his income rebuilding and repairing broken
computers with component parts. As to the seized computer containing child
pornography, Hill testified he had replaced the RAM, the hard drive, the video
processor, the CD drive, and the power source. Hill also testified he was a “gamer,”
meaning he played interactive video games with others online. Distinguishing
between his familiarity with hardware and his purported ignorance of software, Hill
testified he loaded LimeWire onto his computer to download music and adult
pornography but, contrary to the officers’ testimony, denied he knew the LimeWire
files he downloaded were automatically available to other LimeWire users.
-4-
Hill’s direct examination took an unexpected turn. For the first time, Hill
admitted to “knowingly receiving and distributing child pornography involving the
use of minors engaging in sexually explicit conduct,” as charged in the indictment,
and intentionally obtaining the images shown to the jury. But Hill also stated he only
viewed the child pornography to protect his children4—Hill explained he was
intentionally searching for “preteen” images because he thought an unidentified man
at a party may have taken illicit pictures of his fourteen- and sixteen-year-old
stepdaughters showering. Though Hill’s teenage stepdaughters were not “preteen,”
Hill claimed he viewed many images of child pornography and then deleted them
when he verified they did not include his stepdaughters. When confronted on cross
examination with timing inconsistencies, Hill testified he had also looked for images
of a family friend he had helped after she was exploited online. Hill stated he could
not review all of the 266 suspected child pornography files he downloaded to his
shared folder because he became “disgusted” and “sickened of what [he] had seen”
and “could not continue.” Although Hill later resumed his search, he insisted he
deleted or attempted to delete all the child pornography he downloaded and viewed.
After deliberating for approximately four hours, the jury convicted Hill on both
counts. In separate verdict forms, the jury found Hill (1) received all ten still images
and all three videos found in his shared folder and distributed the images all as
alleged in Count 1, and (2) possessed all four images found in his computer’s recycle
bin as alleged in Count 2. The district court denied Hill’s timely motions for
judgment of acquittal. The district court sentenced Hill to concurrent terms of 144
months for Count 1 and 120 months for Count 2. Hill appeals his convictions.
4
Hill also admitted to downloading and viewing one of the videos (Exhibit 43)
before deleting it but denied viewing the other two (Exhibits 41 and 42), the first of
which involved a child victim who was known to be only ten or eleven years old
when the video was produced.
-5-
II. DISCUSSION
A. Motion to Suppress
Hill first contends the district court erred in denying his motion to suppress
without a hearing because, in Hill’s view, Officer Smith violated Hill’s Fourth
Amendment right to be free from unreasonable searches and seizures by accessing
Hill’s computer using peer-to-peer software and downloading files from Hill’s
LimeWire shared folder. We review the district court’s denial of Hill’s “motion to
suppress de novo, and the underlying factual determinations for clear error.” United
States v. Barker, 437 F.3d 787, 789 (8th Cir. 2006). “We review a district court’s
decision whether to hold an evidentiary hearing for an abuse of discretion.” United
States v. Yielding, 657 F.3d 688, 705 (8th Cir. 2011).
Hill’s Fourth Amendment arguments completely ignore the holding of United
States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). In Stults, we held a defendant has
“no reasonable expectation of privacy in files . . . retrieved from his personal
computer where [the defendant] admittedly installed and used LimeWire to make his
files accessible to others for file sharing.” Id. It did not matter that the defendant
denied knowing others would be able to access his files because the defendant knew
“‘he had file-sharing software on his computer’” and admittedly downloaded music
and pornography to his shared folder where other users, including law enforcement
officers, had access. Id. (quoting United States v. Ganoe, 538 F.3d 1117, 1127 (9th
Cir. 2008)).
The same is true here. Hill admittedly downloaded and actively used
LimeWire—file-sharing software that made the scores of pornography files in Hill’s
shared folder accessible to any LimeWire user in the world, including Officer Smith.
LimeWire itself was a publicly accessible program available for free download by
anyone with a computer and an internet connection. Hill had no reasonable
expectation of privacy in such publicly shared files and “‘cannot invoke the
protections of the Fourth Amendment.’” Id. (quoting Ganoe, 538 F.3d at 1127). The
-6-
district court did not abuse its discretion or otherwise err in denying Hill’s motion to
suppress without a hearing. See Yielding, 657 F.3d at 705 (“A district court
presented with a motion to suppress need not hold an evidentiary hearing as a matter
of course, and a hearing is unnecessary if the district court can determine that
suppression is unwarranted as a matter of law.”).
B. Double Jeopardy
Hill next contends the district court erred in refusing to dismiss one count of
the indictment on double jeopardy grounds. See United States v. Muhlenbruch, 634
F.3d 987, 1003-04 (8th Cir. 2011) (concluding possessing child pornography under
18 U.S.C. § 2252(a)(4)(B) is a lesser-included offense of receiving child pornography
under 18 U.S.C. § 2252(a)(2) when “based on the ‘same act or transaction’” (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932))). The Double Jeopardy
Clause of the Fifth Amendment protects a criminal defendant from “multiple
punishments for the same criminal offense.” United States v. Bennett, 44 F.3d 1364,
1368 (8th Cir. 1995). We review de novo the denial of a motion to dismiss one count
of the indictment “on the grounds of double jeopardy.” Id. To establish his double
jeopardy claim, Hill must show Count 1 and Count 2 “are in law and fact the same
offense.” Id. This he cannot do.
With just one exception, the jury’s guilty verdicts for Count 1 and Count 2
were based on different visual depictions of child pornography. On Count 1, the jury
found Hill received the ten images and three videos found in Hill’s LimeWire shared
folder and distributed the same ten images. On Count 2, the jury found Hill possessed
the four images found in Hill’s recycle bin, three of which were different from the
images charged in Count 1. Because the jury specifically found Hill guilty based on
different facts and images for each count, the jury did not convict Hill “‘of receiving
[and distributing] the same images that he was also found to have possessed,’ and
-7-
thus no double jeopardy violation occurred.”5 United States v. Manning, 738 F.3d
937, 947 (8th Cir. 2014) (quoting United States v. Huether, 673 F.3d 789, 798 (8th
Cir. 2012)).
C. Sufficiency of the Evidence
Finally, Hill asserts the district court erred in denying his motions for judgment
of acquittal on both counts, arguing the evidence was insufficient to convict him. See
Fed. R. Crim. P. 29(a). We review de novo the denial of Hill’s motions for judgment
of acquittal. See United States v. Landsdown, 735 F.3d 805, 806 (8th Cir. 2013).
“We view the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury’s verdict.” United States v.
Cook, 603 F.3d 434, 437 (8th Cir. 2010). “We may reverse only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” United States v.
Washington, 318 F.3d 845, 852 (8th Cir. 2003).
1. Possession
In Hill’s view, the government failed to prove Hill knowingly possessed the
four images found in his computer’s recycle bin (Exhibits 37-40). Hill’s argument
is based on his mistaken belief that the images found in his recycle bin were found
in “unallocated space” on his hard drive and Hill could not access or control those
files without special tools Hill did not have. Hill’s belief is belied by the record.
Agent Kanatzar testified the four images entered into evidence as Exhibits 37,
38, 39, and 40, and found by the jury to support convicting Hill of possessing child
5
To the extent Hill might have argued the same image charged as Exhibit 10
in Count 1 and Exhibit 40 in Count 2 created an issue, we conclude any overlap “does
not affect [Hill’s] substantial rights” and is harmless given the jury’s specific guilty
verdicts with respect to all of the other distinct images and videos charged in Count
1 and Count 2, respectively. Fed. R. Crim. P. 52(a).
-8-
pornography as charged in Count 2, were still in Hill’s recycle bin when the officers
seized Hill’s computer. Unlike “unallocated space,” the recycle bin is an accessible
folder on the computer’s hard drive “in which a user places files to be deleted.”6
United States v. Tucker, 305 F.3d 1193, 1198 n.8 (10th Cir. 2002). “Placement in the
bin does not automatically delete files, however.” United States v. Walser, 275 F.3d
981, 984 n.4 (10th Cir. 2001). “[R]emoval of files from the recycle bin generally
requires manual steps to be taken by the user.” United States v. Romm, 455 F.3d 990,
993 n.2 (9th Cir. 2006). In other words, a file in the recycle bin could have been
either permanently deleted or restored to its original location, at Hill’s discretion.
Hill may have “tried to get rid of” the child pornography he downloaded to his
hard drive, but he never emptied the four files from his recycle bin and thus never
relegated them to unallocated space. The images remained in his recycle bin,
accessible to Hill and subject to his dominion and control without any special tools.
The jury could reasonably infer Hill’s “intentional attempt to delete child
pornography files, such as by placing them in [his] computer’s recycle bin,
. . . suggest[ed] he was aware of the files and their contents.” United States v. Breton,
740 F.3d 1, 17 (1st Cir. 2014). Indeed, Hill—no stranger to computers—admitted he
actively sought child pornography on LimeWire using very specific search terms,
intentionally downloaded images of child pornography, viewed those illegal images,
and eventually deleted some of them, before searching for more images. Four of
those illegal images remained in his recycle bin when officers seized his computer.
A reasonable jury could convict Hill of knowingly possessing child pornography.7
6
“Unallocated space is space on a hard drive that contains deleted data, usually
emptied from the operating system’s trash or recycle bin folder, that cannot be seen
or accessed by the user without the use of forensic software. Such space is available
to be written over to store new information.” United States v. Flyer, 633 F.3d 911,
918 (9th Cir. 2011) (emphasis added).
7
Because the illegal images were in Hill’s recycle bin, we need not decide
whether images of child pornography found in unallocated space or the browser cache
-9-
See, e.g., United States v. Worthey, 716 F.3d 1107, 1113-14 (8th Cir. 2013); United
States v. Koch, 625 F.3d 470, 478-79 (8th Cir. 2010).
2. Receipt and Distribution
The evidence presented at trial was also more than sufficient to convict Hill of
knowingly receiving and distributing child pornography.8 At trial, Hill unequivocally
confessed to “knowingly receiving and distributing child pornography” as charged
in the indictment and intentionally using LimeWire to download and view the images
and one of the videos for which he was convicted. Hill claimed he searched for and
downloaded child pornography in an ill-conceived plan to protect his stepdaughters,
not knowing the files in his LimeWire shared folder would be accessible to other
users. But the jury was not obligated to accept Hill’s admittedly irrational
justifications and belated claims of ignorance. “[Q]uestions concerning the
credibility of witnesses, where their testimony is not incredible on its face, are for the
jury to decide.” United States v. Samuels, 543 F.3d 1013, 1019 (8th Cir. 2008).
Hill’s explicit description of his own considerable computer abilities and disturbing
search habits, combined with the investigating officers’ detailed testimony regarding
Hill’s inculpatory statements, would allow a reasonable jury to dismiss Hill’s dubious
claims of innocence.
Even without Hill’s damning witness-stand confession, the evidence of
knowing receipt and distribution was overwhelming. Hill told the investigating
would support a verdict of knowingly possessing child pornography under the
circumstances of this case. See United States v. McArthur, 573 F.3d 608, 614-15 (8th
Cir. 2009) (determining, on the case facts, images found in unallocated space
supported conviction).
8
Hill’s arguments primarily focus on distribution, but a defendant can violate
18 U.S.C. § 2252(a)(2) by “knowingly receiv[ing], or distribut[ing]” child
pornography. (Emphasis added). Here, the jury reasonably found the evidence
sufficient to find Hill guilty of violating § 2252(a)(2) both ways.
-10-
officers he intentionally searched for and downloaded at least one hundred images of
child pornography from other LimeWire users’ shared folders for months. On August
3, 2010, Officer Smith downloaded ten such files from Hill’s public LimeWire folder.
During his forensic examination, Agent Kanatzar found three more videos of child
pornography in Hill’s shared folder. The jury reasonably convicted Hill of knowingly
receiving and distributing child pornography. See United States v. Collins, 642 F.3d
654, 656-57 (8th Cir. 2011) (recognizing use of file-sharing program and knowledge
of computers supported guilty verdict).
III. CONCLUSION
We affirm.
______________________________
-11-
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689 N.W.2d 295 (2004)
MINNWEST BANK CENTRAL, Respondent,
v.
FLAGSHIP PROPERTIES LLC, et al., Appellants,
U.S. Small Business Administration, et al., Defendants.
No. A04-476.
Court of Appeals of Minnesota.
December 7, 2004.
*297 John F. Bonner, III, Robyn K. Johnson, Bonner & Borhart, L.L.P., Minneapolis, MN, for appellants.
Virginia A. Bell, Mary R. Vasaly, Maslon Edelman Borman & Brand, L.L.P., Minneapolis, MN, for respondent.
Considered and decided by WRIGHT, Presiding Judge; PETERSON, Judge; and FORSBERG, Judge.[*]
OPINION
WRIGHT, Judge.
To recover outstanding debts, respondent brought a foreclosure by action. Appellants filed counterclaims, alleging defamation, promissory estoppel, breach of contract, and breach of the implied covenant of good faith and fair dealing. The district court ordered summary judgment in favor of respondent and against appellants' counterclaims. Appellants now challenges the district court's ruling, arguing that the district court erred when it concluded that (1) a condition precedent in the parties' commitment letter was not satisfied and, thus, respondent had no duty to provide long-term financing; (2) respondent was entitled to summary judgment on appellants' counterclaims; and (3) postjudgment interest on a foreclosure decree is calculated at the loan rate, rather than the statutory postjudgment interest rate. Respondent moved to dismiss as moot appellants' appeal as it relates to the postjudgment interest rate on an unsecured debt. We affirm in part, reverse in part, and remand. We also deny respondent's motion.
FACTS
At all times relevant to this appeal, appellants Robert Barwick, Janet Barwick, Flagship Properties LLC, and Barwick Manufacturing Company (collectively Flagship) were in the business of building and operating hotels. In the spring of 1997, Flagship sought financing from respondent Minnwest Bank Central (Minnwest) for the construction of a new hotel. Minnwest granted Flagship a construction loan in July 1997 for $1.3 million, to be paid in full by July 24, 1998. The loan agreement was accompanied by a commitment letter, which reiterated the terms of the construction loan and added the following:
*298 As stated earlier, [Minnwest] intends to participate with the Small Business Administration 504 Loan Program whereby $300,000.00 of the construction loan amount will be sold on the secondary market after project completion at the then prevailing rate. The remaining balance will be financed by the Bank. The terms of this will be an amortization of at least ten years (120 equal payments) at a five-year fixed rate commitment....
Flagship subsequently applied for a Section 504 loan in the amount of $311,000 and, in September 1997, received preliminary authorization from the United States Small Business Administration (SBA).[1] The preliminary authorization provided that, before final approval, Flagship must certify "that no unremedied material adverse change has occurred in the condition of [Flagship]... since the date of application which would endanger [Flagship's] ability to meet the debt service [for the loan]."
Flagship completed construction and opened its hotel in February 1998. The SBA subsequently received financial statements indicating that the hotel was operating at a loss. As a result, the SBA found a "material adverse change," and in March 1999, it declined to proceed with the Section 504 loan until Flagship could demonstrate positive cash flow.
Until mid-2001, the parties agreed to several extensions on the deadline for the repayment of the Minnwest construction loan. The extensions were based on the parties' expectation that Flagship would eventually generate positive cash flow from the hotel and, thus, would satisfy the requirements to receive the Section 504 loan. But in the meantime, Minnwest did not provide long-term financing for the "remaining balance" of the construction loan.
Minnwest informed Flagship in April 2001 that its construction loan had been "classified" and that it would have to seek long-term financing for the loan elsewhere. Flagship solicited several other institutions but was unable to procure financing, purportedly because it disclosed that Minnwest had "classified" the construction loan.
Minnwest formally demanded payment of the construction loan in full in July 2002 and subsequently brought an action in foreclosure to recover this and other debts. Flagship brought counterclaims, alleging defamation, promissory estoppel, breach of contract, and breach of the implied covenant of good faith and fair dealing. Minnwest then moved for summary judgment on the foreclosure action and on Flagship's counterclaims. The district court granted Minnwest's motion, dismissed Flagship's counterclaims, and ordered judgment for the amount due on the construction loan. The district court further ordered that, following the entry of judgment, interest would continue to accrue at a rate equal to that of the original loan.[2] This appeal followed.
*299 ISSUES
I. Did the district court err in holding that Minnwest had no duty to provide long-term financing for the construction loan?
II. Are there sufficient issues of material fact to defeat summary judgment on Flagship's counterclaims?
III. Did the district court err in awarding postjudgment interest at the loan rate instead of the statutory rate?
ANALYSIS
Flagship initially disputes the district court's determination that Minnwest had no duty to provide long-term financing and that Flagship's counterclaims lacked merit.
When reviewing a summary judgment, we determine whether any genuine issue of material fact exists and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In doing so, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). A genuine issue for trial must be established by substantial evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn.1997). Summary judgment is appropriate when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. at 69 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).
I.
Flagship challenges the district court's determination that Minnwest's duty to provide long-term financing was subject to an unsatisfied condition precedent. Flagship contends that the contract does not contain a condition precedent. In the alternative, Flagship implies that, because Minnwest improperly frustrated the satisfaction of the condition, Minnwest is not excused from its duty to perform.
A condition precedent is an event that must occur before a party is required to perform a certain contractual duty. Carl Bolander & Sons, Inc. v. United Stockyards Corp., 298 Minn. 428, 433, 215 N.W.2d 473, 476 (1974). "[N]o particular code words [are] needed to form an express condition." Id. (citing 5 Samuel Williston, Williston on Contracts § 671 (3d ed. 1961)). In Aslakson v. Home Sav. Ass'n, 416 N.W.2d 786 (Minn.App.1987), we considered the effect of a contract requiring a party to establish credit as a condition precedent. The controversy involved a sales contract, which provided in relevant part, "This offer is contingent upon buyer being able to assume the loan." Id. at 787. We concluded that this language created a condition precedent. Id. at 789. Because the purchaser was unable to demonstrate acceptable credit, the seller had no obligation to complete the sale. Id. at 790.
The Minnesota Supreme Court in 451 Corp. v. Pension Sys. for Policemen & Firemen, 310 N.W.2d 922 (Minn.1981), reached the same conclusion based on a more complex set of facts. The owners of an office building had a short-term construction loan and sought long-term financing from a state pension fund. Id. at 922. The parties executed a contract, which stated that the loan was "subject to approval of the documents as to legality and form" by a state official. Id. at 923. *300 On review of the contract, that state official found an illegal amortization and rejected the loan. Id. The supreme court concluded that, because the approval condition was not met, the pension fund had no obligation to supply the loan. Id. at 924; see also Nat'l Union Fire Ins. v. Schwing America, Inc., 446 N.W.2d 410, 412 (Minn.App.1989) ("[A] breach of contract does not occur when a contract is conditioned on third-party approval and the approval is not received." (quoting Aslaksan, 416 N.W.2d at 789)).
Here, the July 1997 commitment letter provided in relevant part:
[Minnwest] intends to participate with the Small Business Administration 504 Loan Program whereby $300,000.00 of the construction loan amount will be sold on the secondary market after project completion at the prevailing rate. The remaining balance will be financed by the Bank.
(Emphasis added.) This language does not provide an unqualified promise to supply long-term financing. Rather, it indicates that Flagship agreed to obtain a portion of long-term financing from a Section 504 loan. Only after this event would the bank have a duty to provide long-term financing for the "remaining balance." The letter explicitly contemplated that Flagship would qualify for credit from the SBA. Thus, it is indistinguishable from other contracts in which conditions precedent require third-party approval. See 451 Corp., 310 N.W.2d at 924. Because the SBA never authorized a Section 504 loan, the condition precedent was not satisfied. Accordingly, Minnwest had no duty to provide long-term financing.[3]
Flagship maintains that the district court relied on inadmissible hearsay to evaluate whether the condition precedent was satisfied. It alleges that the only proof of an unsatisfied condition precedent was a statement, indirectly from the SBA to officers at Minnwest, directing Minnwest not to close the Section 504 loan. But as the nonmoving party on a motion for summary judgment, it was Flagship's burden to establish by substantial evidence that there was a genuine issue for trial. DLH, Inc., 566 N.W.2d at 69-70. Assuming for the purpose of our analysis that the statement was not admissible, there was no evidence that the Section 504 loan had in fact closed, and thus, no duty to finance the remaining balance. Because there was no genuine issue of fact as to whether the condition precedent was satisfied, Flagship's argument on this point is unavailing.
Flagship contends that Minnwest interfered with the process for obtaining the Section 504 loan, thereby preventing the occurrence of the condition precedent. If a party to a contract unjustifiably prevents the occurrence of a condition precedent, then that party's duty to perform is not excused. In re Hennepin County 1986 Recycling Bond Litigation, 540 N.W.2d 494, 502-03 (Minn.1995). But prevention may be justified by the pecuniary circumstances of the other party. See Nodland v. Chirpich, 307 Minn. 360, 366, 240 N.W.2d 513, 516 (1976) (quoting Restatement of Contracts § 295 (1932)).
To establish interference, Flagship alleges that the SBA sent Minnwest a letter to proceed with the Section 504 loan. This letter, however, is not part of the record. We assume for the purpose of our analysis that Minnwest declined to proceed. Even when the facts are viewed in the light most *301 favorable to Flagship, the only reasonable conclusion is that Minnwest declined to proceed because of Flagship's poor financial condition. As such, Minnwest's prevention of the condition precedent, if indeed this occurred, was justified and not a bar to summary judgment on behalf of Minnwest.
II.
Flagship also challenges the summary judgment in favor of Minnwest, dismissing Flagship's counterclaims for defamation, promissory estoppel, breach of contract, and breach of the covenant of good faith and fair dealing.[4]
A.
Defamation ordinarily is established by proof of a statement communicated to someone other than the claimant that is false and that harmed the claimant's reputation and esteem in the community. Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn.2003). Under limited circumstances, a defamation claim may be established even though the statement was communicated only to the claimant. If the claimant is compelled to communicate the statement to another, and this duty is foreseeable to the original declarant, then the declarant may be liable for defamation. Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 888 (Minn.1986).
Flagship asserts that it was compelled to disclose Minnwest's statement that the construction loan was "classified." For the purpose of our analysis, viewing the record in the light most favorable to Flagship, we presume that Minnwest's statement was false and that Flagship was compelled to publish the statement.
The dispositive issue is whether Minnwest's statement is entitled to a qualified privilege, which provides a complete defense to common-law defamation. A qualified privilege is applied as a matter of law, in certain contexts when a candid statement is encouraged. Bol v. Cole, 561 N.W.2d 143, 149 (Minn.1997). A statement is protected by a qualified privilege if it is made in good faith, for a proper reason, and is based on probable cause. Keuchle v. Life's Companion P.C.A., Inc., 653 N.W.2d 214, 220 (Minn.App.2002).
Minnesota authorities have long established that the statements of a financial officer regarding the creditworthiness of another are protected by a qualified privilege. See Froslee v. Lund's State Bank of Vining, 131 Minn. 435, 437-38, 155 N.W. 619, 620 (1915) (holding that bank's statements that buyer was "financially weak and ... in the habit of borrowing from farmers" were privileged); Lowry v. Vedder, 40 Minn. 475, 475, 42 N.W. 542, 542 (1889) (noting that commercial agency's reports containing statements injuring plaintiff's credit are privileged as long as made in good faith). Here, Minnwest classified the loan and explained its status based on Flagship's negative cash flow. Because this statement about Flagship's creditworthiness was made in good faith, for a proper reason, and was based on probable cause, Minnwest's statement is entitled to qualified-privilege protection.
Malice will defeat a qualified privilege when a statement is based on ill will, improper motive, or an intent to injure the claimant without cause. Bauer v. State, 511 N.W.2d 447, 449 (Minn.1994). But malice cannot be inferred from a dispassionate statement based on reasonable information. See, e.g., Buchanan v. State, *302 Dep't of Health, 573 N.W.2d 733, 738 (Minn.App.1998) (holding that state department's correction orders drafted during course of work duties contained no evidence of malice), review denied (Minn. Apr. 30, 1998); Michaelson v. Minn. Mining & Mfg. Co., 474 N.W.2d 174, 182 (Minn.App.1991), aff'd, 479 N.W.2d 58 (Minn.1992) (holding that letter from employer candidly addressing concerns about employee's job performance lacked evidence of malice).
On a motion for summary judgment, a claim of malice will not defeat a qualified privilege in the absence of some facts demonstrating the animosity of the adverse party. Wallin v. State, Dep't of Corrections, 598 N.W.2d 393, 402-03 (Minn.App.1999), review denied (Minn. Oct. 21, 1999). Flagship failed to argue the existence of any facts demonstrating that Minnwest's statement was motivated by ill will or improper motive. Because the record lacked any evidence of malice to overcome the application of a qualified privilege to Minnwest's statement, the district court did not err in granting summary judgment in favor of Minnwest on Flagship's defamation counterclaim.
B.
Promissory estoppel provides an equitable remedy to parties that lack recourse on an enforceable contract. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000). If a clear and definite promise is made to a promisee, the promisor intends to induce reliance on the promise, and the promisee reasonably relies on the promise, then the promise is enforceable to prevent an injustice. Heidbreder v. Carton, 645 N.W.2d 355, 371 (Minn.2002). The district court determined that, because Flagship did not demonstrate that Minnwest made a "clear and definite promise," Flagship's promissory estoppel counterclaim failed.
We have previously considered whether a promise of credit is sufficiently clear to support an action for promissory estoppel. In Norwest Bank Minn., N.A. v. Midwestern Mach. Co., a surviving partner refused to purchase his deceased partner's interest in a business unless a bank promised to supply a $5 million line of credit. 481 N.W.2d 875, 877 (Minn.App.1992), review denied (Minn. May 15, 1992). Purportedly in reliance on the bank's promise, the partner purchased the entire business, which then defaulted on its debts. Id. at 877-78. We reversed summary judgment, concluding that the partner raised a genuine issue of material fact as to whether the bank had made a clear and definite promise. Id. at 880.
These facts contrast with Froelich v. Aspenal, Inc., 369 N.W.2d 37 (Minn.App.1985), which involved a corporation that owed significant debt to its former controlling shareholder. When that shareholder threatened action to recover the debt, a corporate officer responded, "I'll personally guarantee you that you'll get your money when it's due." Id. at 39. On review, we held that the corporate officer had not made a clear promise to personally secure the loan. Id.
The Minnesota Supreme Court considered similar issues in Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845 (Minn.1995). To purchase property, a developer requested $3.6 million in financing from the city. Id. at 847. The city's counsel issued a "memorandum of understanding," and the city passed a resolution that preliminarily approved the financing. Id. But the developer and the city never settled on a specific amount to be financed. Id. The supreme court affirmed the entry of summary judgment in favor of the city, concluding that reliance on the promise *303 was not reasonable when the proposal was not finalized. Id. at 848.
Flagship summarily contends that, between 1997 and 2002, Minnwest promised to provide long-term financing for the construction loan. It also asserts that, in March 1999, after the SBA rejected financing for the Section 504 loan, Minnwest promised to supply long-term financing and "keep all of it right here, in house." These facts, however, do not evince a clear, definite promise. When the SBA loan was rejected, Minnwest may have responded with vague assurances of additional financing, see Froelich, 369 N.W.2d at 39, but it did not produce a clear and definite counterproposal, see Nicollet Restoration, Inc., 533 N.W.2d at 848. Flagship's promissory estoppel counterclaim, therefore, does not state sufficient facts to survive summary judgment.
C.
Based on its interpretation of the July 1997 commitment letter, Flagship also asserts a counterclaim for breach of contract. Because we have previously concluded that Minnwest has no duty to perform according to the terms in the letter, Flagship has no cause for relief. Summary judgment was, therefore, correctly ordered by the district court on Flagship's breach-of-contract counterclaim. See Gunderson v. Alliance of Computer Prof'ls, Inc., 628 N.W.2d 173, 182 (Minn.App.2001), review granted (Minn. July 24, 2001) and appeal dismissed (Minn. Aug. 17, 2001).
D.
Flagship's remaining counterclaim asserts a violation of the covenant of good faith and fair dealing. This covenant ordinarily will be implied between the parties to a contract.[5]In re Hennepin County 1986 Recycling Bond Litigation, 540 N.W.2d at 502. When parties take action with respect to a contract, this covenant bars a party from unjustifiably hindering the other party's performance. Id. To establish a violation of this covenant, a party must establish bad faith by demonstrating that the adverse party has an ulterior motive for its refusal to perform a contractual duty. Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 125 (Minn.App.1998). Again, because we have concluded that Minnwest had no contractual duty to perform, the district court did not err in ordering summary judgment on this counterclaim.
III.
Flagship also contends that, following the entry of judgment pursuant to the foreclosure decree, the district court erroneously ordered payment of the construction-loan rate of interest, rather than the postjudgment statutory interest rate, up to the time of the foreclosure sale. The determination of postjudgment interest is a legal issue, which we review de novo. See C.J. Duffey Paper Co. v. Reger, 588 N.W.2d 519, 527 (Minn.App.1999).
Because postjudgment interest is controlled by statute, we apply principles of statutory interpretation. The object of statutory interpretation is to give effect to the intention of the legislature. State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). If the meaning of a statute is clear, then it shall be given effect according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). But if a statute is reasonably susceptible of more than one *304 meaning, we apply principles of statutory construction to determine the legislature's intent. Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).
Postjudgment interest is governed by Minn.Stat. § 549.09, subd. 2 (2002), which provides in relevant part: "During each calendar year, interest shall accrue on the unpaid balance of the judgment or award from the time that it is entered or made until it is paid [at the statutory rate]." If an ordinary debt is reduced to a money judgment, postjudgment interest is computed at the statutory rate, not the contract rate. Reger, 588 N.W.2d at 527. The operative question here is whether, in a foreclosure by action, the debt is reduced to a judgment by the foreclosure decree or the foreclosure sale.
In a foreclosure by action, judgments are governed by Minn.Stat. § 581.03 (2002), which provides:
Judgment shall be entered, under the direction of the court, adjudging the amount due, with costs and disbursements, and the sale of the mortgaged premises, or some part thereof, to satisfy such amount, and directing the sheriff to proceed to sell the same according to the provisions of law relating to the sale of real estate on execution, and to make report to the court.
Statutes involving judgments are in pari materia and shall be construed in light of one another. See Bolstad v. Paul Bunyan Oil Co., 215 Minn. 166, 169, 9 N.W.2d 346, 348 (1943). The postjudgment interest statute requires that interest accrue "from the time that [the judgment] is entered," Minn.Stat. § 549.09, subd. 2, and the foreclosure statutes consistently describe the foreclosure decree as a judgment entered, Minn.Stat. § 581.03. Therefore, in a foreclosure by action, postjudgment interest accrues at the statutory rate from the foreclosure decree, not the foreclosure sale.
Our conclusion is consistent with the analysis of other authorities. According to the historical rule expressed by courts in equity, when a debt is secured by a mortgage, the contract terminates at the foreclosure decree, and interest is thereafter calculated at the statutory rate. See Beeler v. Am. Trust Co., 28 Cal.2d 435, 170 P.2d 439, 442 (1946); Whitehurst v. Camp, 699 So.2d 679, 683-84 (Fla.1997); 55 Am. Jur. 2d Mortgages § 711 (1996). Although the Minnesota Supreme Court has not expressly adopted this rule, the supreme court has described a foreclosure decree as a final judgment when determining its effect on other proceedings. Smude v. Amidon, 214 Minn. 266, 269, 7 N.W.2d 776, 778 (1943) (mechanic's lien); Fiman v. Hagedorn, 185 Minn. 582, 585, 242 N.W. 292, 294 (1932) (bankruptcy).
To support its argument that the contract rate applies up to the foreclosure sale, Minnwest relies substantially on Minn.Stat. § 581.10 (2002).[6] This statute, which controls postsale rights of redemption in a foreclosure by action, provides in relevant part:
The mortgagor ... within the time specified [for postsale redemption], after the date of the order of confirmation, may redeem the premises sold, or any separate portion thereof, by paying the amount bid therefor, with interest thereon from the time of sale at the rate provided to be paid on the mortgage *305 debt, not to exceed eight percent per annum....
Because this statute calculates the amount for postsale redemption using the contract rate, Minnwest asserts that the contract rate should also apply to the period from the foreclosure decree to the foreclosure sale.
Of the 23 states that provide a postsale statutory right of redemption, our research discloses eight states that apply the contract rate of interest for the period from the foreclosure sale to the redemption, if such occurs.[7]See generally 4 Richard R. Powell, Powell on Real Property § 37.46 (2004). Two of these states, Illinois and Maine, have authority that dictates the rate of interest for the period from the foreclosure decree to the foreclosure sale. Both states describe the foreclosure decree as a judgment and, as part of a unitary statutory scheme, require that the contract rate run from the foreclosure decree up to the sale and thereon to postsale redemption, if such occurs. See 735 Ill. Comp. Stat. Ann. 5/15-1506, -1603 (West 2003); Me.Rev.Stat. Ann. tit. 14, §§ 6204, 6322 (West 2003). Of the 14 states that apply a postjudgment rate of interest for the period from the foreclosure sale to the redemption,[8] only California has authority dictating the rate of interest for the period from the foreclosure decree to the foreclosure sale. See Beeler, 170 P.2d at 442. The California Supreme Court held in Beeler that, unless the mortgage note expressly reserves a contract rate for this period, the statutory rate will run from the foreclosure decree to the foreclosure sale. Id.; cf. Ex parte Aurora Fed. Sav. & Loan Ass'n, 223 Md. 135, 162 A.2d 739, 741-42 (1960) (adopting a similar rule in a jurisdiction without postsale redemption); ERHAL Holding Corp. v. Rusin, 229 A.D.2d 417, 645 N.Y.S.2d 93, 95 (1996) (same).
Based on the foregoing survey, we observe that, in the rare case where a state expressly dictates the rate of interest in a foreclosure proceeding, the same rate typically applies to both the period before and after the foreclosure sale. Two states (Illinois and Maine) have opted for the contract rate, and one state (California) has opted for the statutory rate. But in each of these states, interest is governed throughout by a uniform, unambiguous scheme.
Minnesota's foreclosure statutes fail to supply a comprehensive scheme for the calculation of interest, especially for the period between the foreclosure decree and *306 the foreclosure sale. Absent statutory guidance, we distinguish between the legal obligations imposed by a judgment and the equitable interests served by the postsale rights of redemption. See 4 Powell, supra, § 37.49. Thus, relying solely on the plain meaning of the relevant statutes affecting judgments, we apply the statutory postjudgment interest rate upon entry of the foreclosure decree. Although Minnwest proposes what may be a more consistent approach to the calculation of interest in foreclosure proceedings, "courts are not free to substitute amendment for construction and thereby supply... legislative omissions." Underwood Grain Co. v. Harthun, 563 N.W.2d 278, 281 (Minn.App.1997).
Here, the district court applied the contract rate of interest for the period from the foreclosure decree to the foreclosure sale. Because we conclude that the postjudgment statutory rate of interest applies for this period, we reverse this aspect of the district court's ruling and remand with instructions to apply the postjudgment statutory rate of interest from the date of the foreclosure decree.[9]
DECISION
Because the parties' commitment letter contained a condition precedent that was not satisfied, Minnwest had no contractual duty to provide Flagship with long-term financing. Flagship is otherwise unable to establish a genuine issue of material fact precluding summary judgment on its counterclaims. Accordingly, the district court properly ordered summary judgment for Minnwest. But when Flagship's debts were reduced to a judgment by the foreclosure decree, the district court erroneously applied postjudgment interest at the contract rate, rather than the statutory rate. We affirm in part, reverse in part, and remand to correct the calculation of interest.
Affirmed in part, reversed in part, and remanded; motion denied.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1] Flagship submitted its application for the SBA loan through Minnwest, which in turn relayed the application to the Minnesota Business Finance Corporation (MBFC). The MBFC is a nonprofit "certified development company" that administers the Section 504 loan program on the SBA's behalf. See generally 13 C.F.R. § 120.2(c) (2004) (requiring that a "certified development company" provide final portion of long-term financing with 504 loan made from debenture proceeds and guarantied by the SBA). The SBA is the final arbiter for Section 504 loans.
[2] Neither the parties nor the district court specifically itemized how postjudgment interest would be calculated, but the construction loan provided for a variable interest rate of .75 percent over "Norwest Base." Based on the judgment, which determined that $1,359,323.56 was the amount due and assessed postjudgment interest of $249.42 per day, the district court ordered simple annual interest of approximately 6.70 percent. Regardless of whether these figures are precisely accurate, neither party contests on appeal that the district court applied the contract interest rate.
[3] Because we conclude that Minnwest had no duty to perform in accordance with the terms of the commitment letter, we need not address Minnwest's alternative argument that the commitment letter was not a contract.
[4] Although Flagship also brought a counterclaim for unjust enrichment, Flagship does not raise that issue on appeal. We, therefore, do not address it here.
[5] The implied covenant of good faith and fair dealing does not apply to sales contracts, Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 125 (Minn.App.1998), or to employment contracts, Lee v. Metro. Airport Comm'n, 428 N.W.2d 815, 822 (Minn.App.1988).
[6] In its brief, Minnwest cited Minn.Stat. § 580.23, subd. 1 (2002), which relates to foreclosures by advertisement. We note that both Minn.Stat. §§ 580.23 and 581.10 provide identical methods for calculating the amount for postsale redemption for foreclosure by action and foreclosure by advertisement.
[7] See 735 Ill. Comp. Stat. Ann. 5/15-1603(d)(1)(vi) (West 2003); Iowa Code § 628.13 (2001); Me. Rev. Stat. Ann. tit. 14, § 6204 (West 2003); Mich. Comp. Laws Ann. § 600.3140 (West 2000); Minn. Stat. § 581.10 (2002); Mo. Ann. Stat. § 443.410 (West 2000); N.D. Cent. Code § 28-24-02 (1991); Heimerdinger v. Heimerdinger, 299 Mich. 149, 299 N.W. 844, 846 (1941) (holding that contract rate of interest applied at redemption); Lang v. Bank of Steele, 415 N.W.2d 787, 791 n. 2 (N.D.1987) (citing N.D. Cent. Code § 28-24-02).
[8] See Alaska Stat. § 09.35.250 (Michie 2002); Ariz. Rev. Stat. Ann. § 12-1285 (West 2003); Ark. Code Ann. § 18-49-106 (Michie 2003); Cal. Civ. Proc. Code § 729.060(b)(4) (West Supp. 2004); Kan. Stat. Ann. § 60-2414(d) (1994); Ky. Rev. Stat. Ann. § 426.220 (Michie 1992); Mont. Code Ann. § 25-13-802 (2003); N.M. Stat. Ann. § 39-5-18(A)(1) (Michie 1991 & Supp. 2004); Or. Rev. Stat. § 18.582(2) (2003); Tenn. Code Ann. § 66-8-110 (2004); Utah R. Civ. P. 69(j)(3); Wash. Rev. Code Ann. § 6.23.020(2) (West 1995 & Supp. 2005); Wyo. Stat. Ann. § 1-18-103(a) (Michie 2003); Beavers v. Transamerica Fin. Servs., Inc., 474 So.2d 1105, 1107-08 (Ala.1985); cf. Fed. Land Bank of Wichita v. Burgett, 97 N.M. 519, 641 P.2d 1066, 1067-68 (1982) (holding that, when calculating interest on amount for right of redemption, no interest is assessed from decree to sale and statutory interest is assessed thereafter).
[9] Minnwest also moves to "dismiss as moot" Flagship's appeal with respect to the rate of postjudgment interest on an unsecured debt. When Minnwest brought action in foreclosure to recover its debts against Flagship, one debt was not secured by a mortgage. But the district court disposed of all the debts in the foreclosure decree, uniformly ordering judgment with interest at the contract rate. With respect to the unsecured debt, the court administrator entered judgment with interest at the statutory rate, notwithstanding the district court's order. The parties' arguments on appeal have addressed only the postjudgment rate of interest on a debt secured by a mortgage. Our resolution of the matters argued has no effect on postjudgment interest for an unsecured debt. We now conclude that the court administrator correctly entered judgment on the unsecured debt with postjudgment interest at the statutory rate. See Reger, 588 N.W.2d at 527. Because we reach this issue on its merits, Minnwest's motion to dismiss as moot is denied.
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195 S.W.3d 11 (2006)
Robin STEPNEY, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 86235.
Missouri Court of Appeals, Eastern District, Division Three.
June 27, 2006.
Lisa M. Stroup, St. Louis, MO, for appellant.
Deborah Daniels, Jefferson City, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
ORDER
PER CURIAM.
Robin Stepney appeals from the judgment denying her Rule 24.035 motion after an evidentiary hearing. We affirm.
*12 We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court's judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).
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243 Ga. 301 (1979)
253 S.E.2d 764
STITT
v.
STITT.
34242.
Supreme Court of Georgia.
Argued November 15, 1978.
Decided March 8, 1979.
Rehearing Denied March 27, 1979.
Robert K. Stitt, III, pro se.
Rosenbluth, Kahn & White, Jerrell P. Rosenbluth, for appellee.
UNDERCOFLER, Presiding Justice.
This is a suit for divorce and alimony. There are no children of the marriage. This appeal is from the grant of temporary alimony including attorney fees. Appellant challenges the constitutionality of the alimony statutes contained in Code Ann. §§ 30-201-30-212 because they deny equal protection of the laws by not providing for alimony for husbands. Since the issues involved here concern only temporary alimony including attorney fees, we address only Code Ann. §§ 30-201, 30-202, 30-202. 1 and 30-203. These statutes impose alimony obligations on husbands but not wives and violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Orr v. Orr, ___ U. S. ___ (99 SC 1102, 59 LE2d ____) (1979). Accordingly we hold Code Ann. §§ 30-201, 30-202, 30-202.1, and 30-203 unconstitutional.
Nevertheless, we affirm the trial court's award of temporary alimony and attorney fees.
The superior courts have authority to award temporary alimony including attorney fees to either party *302 as a derivative and incidental power to the power to grant divorces. McGee v. McGee, 10 Ga. 477 (1851).
Judgment affirmed. All the Justices concur.
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74 F.3d 1241
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.James M. MORGAN, Defendant-Appellant.
No. 94-6258.
United States Court of Appeals, Sixth Circuit.
Jan. 9, 1996.
Before: KRUPANSKY, BATCHELDER, MOORE, Circuit Judges.
PER CURIAM.
1
Appellant Morgan, a Reclamation Inspector Principal with the Kentucky Department of Surface Mines Reclamation and Enforcement, pled guilty to one count of violating the Hobbs Act, 18 U.S.C. Sec. 1951, by accepting a bribe from a mine owner. At sentencing, the district court applied United States Sentencing Guidelines ("U.S.S.G.") Sec. 2B3.2, which applies if the offense involved a threat of physical injury or property damage, instead of U.S.S.G. Sec. 2C1.1(b)(2)(B), which applies to extortion under color of official right. The defendant appealed, arguing that the district court erred in applying U.S.S.G. Sec. 2B3.2.
2
On August 4, 1993, James Morgan met with Jerry Howard, Vice President of Kentucky May Coal Company, to discuss a problem at May Coal's job site. Morgan stated to Howard that May Coal's refuse area was out of compliance with state regulations, and that he would have to shut down operations of May Coal. Howard then asked Morgan what could be done to avoid a shutdown. Morgan replied that if he "went out on a limb for" Howard, then he would have to be "taken care of." Essentially, Morgan advised Howard that he could be put on the payroll as a consultant: if he saw a potential violation at a job site that could cause a shutdown, he would call and advise Howard so it could be corrected. Morgan advised he would need to be paid $500 every two weeks. Howard informed the police of Morgan's conduct, and agreed to cooperate with them in their investigation of Morgan. Under secret police observation, Morgan met with Howard and accepted the bribe money. After being arrested and indicted, Morgan entered a plea agreement.
3
The original Presentence Report filed in the case applied U.S.S.G. Sec. 2C1.1, entitled Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right. This section imposes an offense level of 10 but authorizes a cross-reference to U.S.S.G. Sec. 2B3.2, "Extortion by Force or Threat of Injury or Serious Damage" which mandates an offense level of 18, in certain circumstances. A cross reference is appropriate if
4
there was any threat, express or implied, that reasonably could be interpreted as one to injure a person or physically damage property, or any comparably serious threat, such as to drive an enterprise out of business.
5
U.S.S.G. Sec. 2B3.2, Application Note 2.
6
The trial judge at sentencing concluded that section 2B3.2 applied because "Mr. Morgan had the authority to shut down this mine for ... being off permit." Therefore, the district court concluded, "his threat to Mr. Howard for Kentucky May was ... a threat to injure him and his business and essentially shut him down...." The district court concluded that U.S.S.G. Sec. 2B3.2 embraced such a threat. Having reviewed the record and received the benefit of oral argument, the panel concludes that the defendant failed to contemporaneously object to the district court's sentencing decision and that the district court's decision was not plain error.
7
Accordingly, the sentence below is AFFIRMED.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
MAX GROSSMAN, § No. 08-19-00272-CV
Appellant, § Appeal from the
v. § 384th District Court
§ of El Paso County, Texas
CITY OF EL PASO,
§ (TC# 2017-DCV2528)
Appellee.
§
ORDER
The Court sets the following briefing schedule:
• The clerk’s record and reporter’s record are due to be filed in this Court on November
4, 2019—the Monday following ten days from the filing date of the notice of appeal.
• Appellant’s Brief shall be due in this Court twenty days from filing of the
clerk’s/reporter’s record, whichever occurs later.
• Appellee’s Brief shall be due in this Court twenty days from the date the Appellant’s
Brief is filed.
• Appellant’s Reply Brief, if any, shall be due in this Court seven days from the date
the Appellee’s Brief is filed.
A submission date will be determined at a later date and the parties will be provided with
advanced notice of the setting.
IT IS SO ORDERED this 25th day of October, 2019.
PER CURIAM
Before Alley, C.J., Rodriguez and Palafox, JJ.
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529 F.2d 521
dU. S. ex rel. Channellv.Henderson
74-1623
UNITED STATES COURT OF APPEALS Fifth Circuit
3/4/76
1
W.D.La.
AFFIRMED
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276 S.W.2d 12 (1955)
A. E. BREWER et al. (Kentucky Workmen's Compensation Board), Appellants,
v.
Pete MILLICH, Appellee.
Court of Appeals of Kentucky.
March 4, 1955.
*14 Craft & Stanfill, Hazard, for appellants.
Cordell H. Martin, Hindman, for appellee.
MONTGOMERY, Justice.
Pete Millich had been cutting and logging timber since 1906. At the time of the injury suffered, he was sixty-six years of age, had very little education, and from the language used in his depositions and from his name, he appears to have been of foreign extraction. On October 6, 1951, he sustained an injury while working in the timber which resulted in a hernia. Since the question involved here addresses itself to facts other than the circumstances surrounding the injury, no further statement of those circumstances will be made.
Millich had entered into a contract with A. E. Brewer, a manufacturer of staves, on July 30, 1951, to cut, roll, bark, and split into 38-inch stave bolts 148 white oak trees owned by Brewer on certain lands located in Knott County, for which he was to be paid at the rate of $35 a cord. The question involved is whether Millich was an independent contractor such as would preclude him from receiving benefits under the Workmen's Compensation Act, or whether he was in fact an employee of A. E. Brewer. The contract is as follows:
"This agreement made and entered into this 30th day of July 1951 by and between A. E. Brewer of Hazard, Kentucky, party of the first part and Pete Mellish of Topmost, Kentucky, party of the second part, Witnesseth:
"Party of the first part is the owner of 148 white oak trees 20 inches and up in diameter located on the lands of Jeffie Hall in Knott County Kentucky, which he desires to have made into bourbon stave bolts and delivered to his mill at Dwarf, Kentucky.
"Second party agrees to cut, skid, roll, bark and split into 38 inch stave bolts and deliver to first party's mill at Dwarf, Kentucky beginning August 1st. 1951 and continuing until 125 cords of bolts have been made and delivered to first party's mill. All bolts to be delivered before Dec. 31, 1951. All bolts are to be graded at Dwarf Mill and any culls thrown out and not paid for. All bolts are to be branded in the woods by second party before hauling.
"Should it develope that these 148 trees turn out more than 125 cords of bolts, then it is mutually agreed that adjustment will be made Dec 31 1951 or before on the price on the number of cords in excess of 125 cords.
"Second party as an independent contractor is to hire his own men, make his own pay roll, and from same make and report deductions of social security, withholding tax, and Kentucky Unemployment tax, and pay same to proper authorities.
"Second party is to report to first party the gross amount of each employee's pay at the end of each month and first party agrees to carry Liability Insurance on said employees, charging premium for same to second party and deducting same from price of bolts delivered.
"Second party is to use care in cutting, manufacturing and delivering said bourbon stave bolts, and should he fail to do so, as instructed by first party, then first party has the right to cancel and take over this contract and have timber properly manufactured and delivered.
"First party agrees to pay second party on Monday the sum of Thirty Five Dollars ($35.00) per cord of 4 x 8 feet x 38 inches for all bourbon stave bolts delivered and accepted at the mill the week before.
*15 "This contract to be completed by December 31, 1951.
"s/ A.E. Brewer
First Party
s/ Pete Millich
Second Party
"s/ Foster Caufill"
Witness
The Workmen's Compensation Board, on review, denied compensation and held Millich to be an independent contractor, but the Knott Circuit Court allowed him compensation as an employee, from which judgment this appeal is prosecuted.
The contract executed between these parties was prepared by Brewer in the presence of Millich. On the same date that the contract was prepared and signed, Brewer presented to Millich a Workmen's Compensation Register which, apparently, had already been prepared in the name of "Pete Millich, Contractor for A. E. Brewer, Hazard, Kentucky." Millich testified that he signed this register in the column therein designated "Name of Employee" and entered his social security number thereon on the same day that the contract was signed.
The testimony shows that Brewer arranged for the workmen's compensation insurance and paid the monthly premiums thereon with deductions from the pay due Millich. Brewer was called as if upon cross-examination and testified that the monthly premiums were paid by him, based upon the estimated amount of wages paid by Millich, because Millich failed to furnish him with a statement of the wages paid from time to time.
The injuries suffered by Millich were not reported to Brewer for about a month or more afterwards. On January 27, 1952, A. E. Brewer signed and forwarded to the Workmen's Compensation Board the standard form for Employer's First Report of Injury, on which he signed as his official title "Owner", and on which his name "A. E. Brewer" was entered on the first line opposite "Name of Employer". On line 11 of this report, the name "Pete Mellish" is shown as the name of the injured person, and on the next line, in answer to the question "Did employee sign the Employee's Register?" the answer was given as "Yes" and the date given as "July 30, 1951." Millich also testified that when he reported the injury to Brewer, Brewer asked, "Why did you not report it before?" It may be noted at this point that all of the testimony was introduced in behalf of Millich and that there was no conflict in the evidence.
Since the facts are not disputed, the question of whether appellee was an independent contractor or employee is one of law. Raponi v. Consolidation Coal Co., 224 Ky. 167, 5 S.W.2d 1043; Aetna Casualty & Surety Co. v. Petty, 282 Ky. 716, 140 S.W. 2d 397.
In answering this question, the approach to be used is that of determining the relation of employer-employee under the Workmen's Compensation Act rather than of master and servant or principal and agent in tort actions. The workmen's compensation approach is broader and uses a more liberal construction favoring the employee. This is in harmony with the purpose of the Act in affording protection to the employee because of his inability to withstand the burdens of injury occasioned by his employment and the resultant loss of work. In Black Mountain Corporation v. Stewart, 272 Ky. 140, 113 S.W.2d 1141, 1143, the principle is stated as follows:
"* * * While the rule of liberal construction of our compensation law required by the act (Kentucky Statutes, § 4987) and followed by the court `does not dispense with the necessity of the claimant proving his case nor relieve the board of its duty of resting its finding and award on some competent and relevant evidence,' the court would not be authorized to read into the act something that would totally thwart its humane spirit and purposes nor to deny compensation where a liberal construction within the bonds indicated would justify it. * * *"
*16 In Robinson v. Lytle, 276 Ky. 397, 124 S.W.2d 78, 80, the Court said:
"* * * we must look to the philosophy of the Compensation Act in arriving at its proper construction. It was the intention of that Act to place the burden for injuries received upon the industries in which they were suffered rather than upon a society as a whole."
It is provided in KRS 342.004 that the Workmen's Compensation Act shall be liberally construed on questions of law. In this connection, it might be well to call attention to KRS 342.050, wherein it is provided that no employer may by contract or agreement, written or implied, relieve himself, in whole or in part, of any obligation created by this Act. This statute is mentioned for the purpose of showing the intention of the Act to protect the employee and without saying whether this section would forbid or prohibit the type contract involved in this case.
The Courts have used many tests in determining the question at issue. These methods are varied and dependent upon several factors, of which few or many may be present in any one case. Again, the trend has been to favor the award of compensation based upon a finding of employment. In a discussion of the weight of the individual factors involved in deciding this question, it is said in Larson's Workmen's Compensation Law, Volume 1, Section 44.31, Page 643, that independent contractorship is established usually only by a convincing accumulation of the various tests involved, while employment, although a similar accumulation is often attempted, can, if necessary, often be solidly proved on the strength of one of the various factors.
No hard and fast rule can be formulated to determine when a person undertaking to do work for another is an independent contractor and when he is a servant. Each case must be determined upon its own facts. There are many well-recognized and fairly typical indicia of the status of independent contractor, but the presence of one or more of these in a case is not necessarily conclusive of this status. 134 A.L.R. 1029; 27 Am.Jur., Section 5, Page 485.
In determining the status of the claimant in these cases, the Courts have closely scrutinized written contracts with the employer, and where the individual case justified it, have gone behind such a contract describing one as an independent contractor and have held him to be an employee.
In Horovitz on Workmen's Compensation, Pages 228 and 229, it is said:
"* * * But that does not mean that employers can enter into colorable contracts with their employees to call them `employers' or `independent contractors,' and thus avoid or evade compensation coverage. Even written contracts, as distinguished from oral agreements, purporting to make persons independent contractors, no matter how `adroitly framed,' can be carefully scanned and the real relationship ascertained. * * *"
"* * * Courts look behind the legal terminology to discover and expose the real relationship between the parties as regards the question of the failure to obtain compensation coverage. * * *"
Many forms of oral and written agreements have been used to create the shadow of independent contractor, partner, or lessee, but the Court should look to the substance rather than the shadow. Glielmi v. Netherland Dairy Company, 254 N.Y. 60, 171 N.E. 906; People on Complaint of Cohen v. Levine, 160 Misc. 181, 288 N.Y.S. 476; Montello Granite Co. v. Industrial Commission, 227 Wis. 170, 278 N.W. 391; Whipple v. Industrial Commission, 59 Ariz. 1, 121 P.2d 876; Maher v. Commander Taxi Corp., 227 App.Div. 832, 237 N.Y.S. 831; Utility Coal Co. v. Rogez, 170 Okl. 264, 39 P.2d 60; Pacific Employers Insurance Co. v. Industrial Accident Commission, 3 Cal.2d 759, 47 P.2d 270; U. S. Fidelity & Guaranty Co. v. Industrial Commission, 42 Ariz. 422, 26 P.2d 1012; Tokash v. General Baking *17 Co., 349 Mo. 767, 163 S.W.2d 554; and Gerrard Co. v. Industrial Accident Commission, 17 Cal.2d 411, 110 P.2d 377.
In Chaffee v. Sears Roebuck & Co., 283 App.Div. 757, 128 N.Y.S.2d 329, it was held that a coerced written agreement designating an employee as independent contractor was not conclusive and that the board could look behind the contract and ascertain the real relationship.
An independent contractor has been defined as one who is doing his own work in his own way; that is, he must have some particular task or work he has a right and an obligation to complete, and he must be subject to no control in the details of its doing. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014; and cited cases.
In the contract prepared by appellant Brewer, the details of the particular task are set out as to what is to be done, how it is to be done, when it is to be done, and with the right of cancellation by Brewer upon Millich's failure to do as instructed by Brewer. Briefly, appellee was to "cut, skid, roll, bark, and split into 38-inch stave bolts" certain trees to be delivered after branding at Brewer's mill between specified dates. All bolts were to be graded after delivery by Brewer at his mill, with any culls thrown out and not paid for. Brewer asserted further control over appellee's work by providing that should appellee fail to use care in "cutting, manufacturing, and delivering said bourbon stave bolts" as instructed by Brewer, then he, Brewer, could cancel the contract and have the timber manufactured and delivered. The element of control in employer-employee relationships is considered important in determining the employee's status as such or as an independent contractor. From an analysis of the Brewer contract, it is seen that Brewer exercised control as to what type work was to be done, as well as the type product to be manufactured. He also retained the right to instruct appellee in the proper care in performing his work and had the final right to cancel the contract unless appellee performed as instructed by Brewer. This was a right to fire appellee if he failed to perform as directed by Brewer.
In Travis v. Hobbs, Wall & Co., 2 Cal. I.A.C.Dec. 506, a shingle bolt maker, engaged on the timber land of the defendant in the cutting of shingle bolts and paid at the rate of $1.75 a cord for all work done, the payday being at the same time as that of the men working on a wage basis, was held to be an employee notwithstanding the fact that he had no regular hours, was master of his own time, and was subject to no supervision other than that the shingle bolts conform to standard.
There are various factors in the instant case which make it stronger than the Travis case.
In addition to the control reserved by Brewer over the work, he also sought to protect himself from any financial responsibility arising from any injuries that might be suffered either by appellee or any of the men working for him, as well as shifting the responsibility for paying the employer's contributions for social security and unemployment insurance to appellee. Evidencing the vital concern Brewer had in protecting himself against any loss due to injuries by employees are his actions in the preparation of the contract, arranging for the compensation insurance, and paying the premiums therefor out of any compensation due appellee. In fact, he paid the premiums although Millich became overdrawn on his account and did not furnish statements of his payroll, Brewer paying on an estimated payroll. These things show that Brewer did not trust Millich to keep the insurance paid up and the resulting protection in force, and further indicate his desire to see that he, Brewer, was protected.
At this point, it is pertinent to ask if Brewer really believed Millich was an independent contractor. Why should he, Brewer, bother about the compensation insurance since he would not be responsible for any loss due to injuries unless the insured person was his employee?
The answer is that the contract was merely a subterfuge for the purpose of trying to *18 shift his responsibility as an employer. The action of Brewer in having Millich sign a compensation register on the same day the contract was signed designating him as an independent contractor is more consistent with the establishment of the relation of employer-employee than independent contractor. When Millich signed the register as an employee, he did so as an employee of Brewer, not of himself. Likewise, Brewer signed and forwarded the Employer's First Report of Injury to the Workmen's Compensation Board, wherein he was designated as owner and employer and Millich as employee. The facts in this case are stronger than in the Raponi case, above, wherein it was held that signing the register was not a controlling factor.
Considering these elements, as well as the facts that Brewer was engaged as a manufacturer of staves and Millich had no capital with which to engage in business, in fact, was indebted for his board bill, the construction is inescapable that the contract in question was a sham erected for the purpose of shifting the responsibility of the injuries to employees from Brewer to Millich; and that as between these two parties, Millich was considered by Brewer, and was so treated by him, as an employee; and, therefore, is entitled to compensation. This does not determine the status of Brewer as to the men employed by Millich.
The cases of Diamond Block Coal Company v. Sparks, 209 Ky. 73, 272 S.W. 31; Raponi v. Consolidation Coal Co., above; Wright, v. Wilkins, 222 Ky. 144, 300 S.W. 342; and Louisville & N. R. Co. v. Newland, 176 Ky. 166, 195 S.W. 415, relied upon by appellants, are distinguished from this case, in that the facts with reference to the compensation insurance obtained by Brewer for the benefit of Millich are much stronger and more indicative of the employer-employee relation than the facts in the cases cited. It is unnecessary to follow the principle of estoppel cited in the cases by appellee because in each of those cases there was no question of the status of employee.
The trial court found appellee to be totally disabled and awarded compensation on that basis. In this, the court exceeded its authority. Joseph W. Greathouse Co. v. Yenowine, 302 Ky. 159, 193 S.W.2d 758. The court was correct in finding that appellee was an employee of Brewer and, therefore, his injury was compensable.
The judgment is affirmed insofar as it holds that appellee is an employee and entitled to compensation, and is reversed insofar as it fixes the disability and awards compensation therefor. The cause should be remanded to the Workmen's Compensation Board for a determination of the degree of disability of the claimant and for an award in keeping therewith.
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70 Ill. App.2d 202 (1966)
217 N.E.2d 305
Cleo Andrews, Administrator of the Estate of Charles Herman Andrews, Deceased, Plaintiff-Appellant,
v.
Thomas D. Porter, and City of Chicago, a Municipal Corporation, Defendant-Appellee. Elbert Fox, Plaintiff-Appellant,
v.
City of Chicago, a Municipal Corporation, Defendant-Appellee, and Patrick Price, et al., Defendants.
Gen. Nos. 50,328, 50,329.
Illinois Appellate Court First District, Second Division.
May 3, 1966.
*203 *204 Rogers, Strayhorn & Harth, of Chicago (Raymond E. Harth, of counsel), for appellants.
Raymond F. Simon, Corporation Counsel of the City of Chicago (Sydney R. Drebin and Allen Hartman, Assistant Corporation Counsel, of counsel), for appellee.
MR. JUSTICE LYONS delivered the opinion of the court.
These cases represent consolidated appeals from two judgments on the pleadings in favor of the City of Chicago.
In No. 50328 (Andrews, Administrator v. City of Chicago), Count One of the complaint is against a policeman, Thomas Porter, and alleges, in substance, that on August 1, 1960, defendant negligently shot and killed one Charles Andrews; that decedent was in the exercise of due care and caution; that decedent left surviving him a wife and five minor children, who suffered pecuniary loss as *205 a result of said wrongful death; and that plaintiff, the widow, is the administratrix of the estate of the deceased.
Count Two is against the City of Chicago and alleges that the defendant policeman was engaged in the business of said city and acting in the course of his employment at the time of the injury. This count incorporates the allegations of Count One and prays for a direct judgment against the city for the negligent acts of its employee.
Count Three alleges that a statute, chap 24, par 1-4-5 of the Illinois Revised Statutes (1963), provides that a city shall indemnify a policeman for any judgment recovered against him by a person injured by said policeman while he is engaged in the performance of his duties, except where the injury results from his wilful misconduct. This count incorporates the allegations of Count One and further alleges that the requisites of the Statute have been met and prays for a declaratory finding to that effect; for a further declaratory finding that defendant City is liable to plaintiff for a sum in the amount of any judgment rendered against the policeman; and for a direct declaratory judgment against the city for the amount of any such judgment.
In No. 50329 (Fox v. City of Chicago), Count One names as defendants three Chicago policemen, and alleges, in substance, that on January 24, 1963, plaintiff was arrested for a traffic violation and tendered bond for his release at the station; that his bond was refused and he was retained in custody on a purported charge of larceny, on the alleged authority of a capias previously issued against one Albert Fox; that plaintiff had never been charged with the offense of larceny and no capias or warrant for any such offense had ever been issued against him; that the capias on which plaintiff was being held was null and void, for the reason that the Albert Fox named therein, on June 19, 1962, several months prior to the arrest of plaintiff, had been sentenced to serve twenty days in the County Jail for the offense *206 referred to in the capias and had in fact served the sentence; that plaintiff informed defendants of the above facts and requested that they verify them; that defendants arbitrarily refused to do so and kept him in custody and produced him in court the following morning; that he appeared in court and apprised the judge of the above facts, whereupon the judge directed the assistant state's attorney to attempt to verify the statements made by plaintiff and that this was done and plaintiff was released from custody. This count prays for general and punitive damages against the policemen.
Count Two, as in No. 50328, names the City as defendant, incorporates the allegations of Count One, and prays for a direct judgment against the City for the negligence of its employees.
Count Three, alleges the same statute raised in Count Three of No. 50328 and prays for the same relief.
In both cases, the City filed Motions to Dismiss, alleging that direct action against the City is barred by chapter 24, par 1-4-5 of the Illinois Revised Statutes (1963). In separate judgments dated October 19, 1964 in No. 50329 (Fox v. City, et al.) and November 18, 1964 in 50348 (Andrews v. City, et al.), the trial court sustained the City's motion and dismissed the actions, as to the City only, on the ground that a municipal corporation cannot be sued directly for the alleged tortious actions of its police officers. The court found no just reason for delaying an appeal. From these judgments plaintiffs appeal.
Plaintiffs' theory of the case is (1) that under the decision of the Illinois Supreme Court in Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 NE2d 89 (1959), and subsequent decisions, the City of Chicago is liable for the tortious actions of its police officers and may be sued directly for damages resulting therefrom and (2) that the indemnity provision found in Illinois Revised Statute (1963), chapter 24, par 1-4-5, is for the *207 benefit of policemen against whom judgments may be rendered and does not bar a direct action against the City.
It is the theory of defendant, City of Chicago, (1) that the City's liability for the tortious acts of its policemen is limited by statute to that of indemnitor, (2) that this is the exclusive remedy of the injured person and (3) that no direct action may be initiated against the City without first securing judgment against the policemen.
The indemnity provisions found in par 1-4-5 read in substance as follows:
1-4-5. Indemnification for injuries caused by policemen Liability for injuries caused while assisting policeman.
In case any injury to the person or property of another is caused by a member of the police department of a municipality having a population of 500,000 or over, while the member is engaged in the performance of his duties as a policeman, and without the contributory negligence of the injured person or the owner of the injured property, or the agent or servant of the injured person or owner, the municipality in whose behalf the member of the municipal police department is performing his duties as policeman shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the policeman....
A brief consideration of the legislative history of par 1-4-5 reveals that the predecessor to said section was enacted in 1943 as par 1-15, Ill Rev Stats (1943), chapter 24, par 1-15. That provision, in effect, removed the defense of governmental immunity from Illinois cities and villages having a population of 500,000 or over and made *208 said municipalities directly liable for injuries caused by policemen, but limited the actions to injuries resulting from "the negligent operation of a motor vehicle." In 1945 section 1-15 was amended and said municipalities were made liable for all nonwilful torts of policemen in their employ, however, the Legislature removed the provision for direct liability and made said municipalities liable only as indemnitors. Ill Rev Stats (1945), chapter 24, par 1-15. This refinement was continued down to the present statutory successor to par 1-15, which is found in Ill Rev Stats (1965), chapter 24, par 1-4-5.
[1-3] At the outset, it is an undisputed principle of law that a plaintiff has a cause of action against a policeman for the tortious conduct of the officer acting in the performance of governmental functions. Erikson v. Fitzgerald, 342 Ill. App. 223, 96 NE2d 382 (1950). Both of the instant cases present a valid cause of action against the defendant policemen.
We next consider the alleged liability of defendant, City of Chicago, in Count Two of each complaint.
Plaintiffs contend that the decision in Molitor v. Kaneland Community Unit Dist., supra, erased from Illinois law the prior concept of governmental immunity from liability and that this decision can be applied to the tortious acts of a policeman employed by a municipal corporation.
Defendant contends that the governmental liability of a municipal corporation was not erased by the decision of Molitor, but took place in 1943 when the Illinois Legislature passed legislation abolishing a municipal corporation's immunity, but limited liability to its injuries resulting from the negligent operation of a motor vehicle.
We agree with defendant. Shortly thereafter, however, in 1945, an amendment was passed which changed the aforesaid statute into an indemnification provision. From that time on the statute existed primarily for the benefit of policemen against whom a judgment was rendered and *209 not for the benefit of the person injured. This construction is strengthened when we compare par 1-4-5 with par 1-4-6, which is a similar paragraph applying to cities under 500,000 population. Policemen in those cities must give the municipality written notice within ten days of being served with process and there is the further provision that "the duty of the city to indemnify any such policeman for any judgment recovered against him shall be conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described." In other words, if a policeman, when sued, fails to give notice, the construction urged by the defendant, (i.e., that the statute is the exclusive remedy against the city for negligent torts of policemen) would result in a complete defeat of the injured person's action against the city.
In further support of plaintiffs' contention the following governmental agencies, in addition to cities and villages, are by statute, specifically authorized to maintain police forces:
Chap. 19, § 182.13 - Waukegan Port District
Chap. 19, § 287 - Tri-City Regional Port District
Chap. 42, § 317 - Sanitary Districts (within
Municipalities)
Chap. 42, § 360 - Chicago Sanitary District
Chap. 42, § 403 - River Conservancy Districts
Chap. 42, § 438 - Sanitary Districts (outside
municipalities)
Chap. 57 1/2, § 9 - Forest Preserve Districts
Chap. 105, § 4-7 - Park Districts
Chap. 111 2/3, § 238 - Water Authorities
Chap. 111 2/3, § 327 - Chicago Transit Authority
Chap. 122, § 435.8(10) - Southern Illinois University
Chap. 122, § 577.8(10) - Western Illinois University
Chap. 144, § 28 - University of Illinois
*210 In none of the foregoing statutes is there any provision for indemnity. If defendant's contention, that a governmental agency maintaining a police force may not be sued directly due to the tortious conduct of its policemen, was followed, a plaintiff would be foreclosed from recovery against the municipality. We conclude that governmental immunity was abolished in part by statute in 1943, but was reinstated by statute in 1945.
We must now determine if in fact governmental immunity for the aforesaid tortious conduct of a policeman was subsequently abolished by Molitor. There is no precedent in Illinois for the proposition that the decision in Molitor, abolishing governmental immunity, could be applied to the tortious conduct of a police officer. In Peters v. Bellinger, 22 Ill. App.2d 105, 159 NE2d 528 (1959), however, the court stated at page 107:
On appeal in this court the basic issue before us is whether a city may be held liable directly for the tortious acts of one of its police officers. This issue, we believe, has been decided by the Supreme Court of Illinois, on May 22, 1959, in the case of Molitor v. Kaneland Community Unit District No. 302, favorably to the plaintiff in this case.
That decision was filed July of 1959. On appeal to the Supreme Court, the Supreme Court reversed the Appellate Court decision, 19 Ill.2d 367, 166 NE2d 581 (1960) but only on the ground that liability pursuant to the Molitor case can be applied only prospectively after December 16, 1959, and that as the cause of action arose before that date, there cannot be a recovery for those causes of action that arose before December 16, 1959. The court stated at page 369:
We do not reach the question of applicability of the Molitor holding to this case since the cause of action here arose on July 20, 1956, long before December *211 16, 1959, the effective date of the Molitor opinion, which struck down the doctrine of governmental immunity. Those municipal and quasi-municipal corporations which have enjoyed immunity in the past continue to enjoy it until December 16, 1959. Recovery may be made in causes of action arising thereafter where it is determined that the type of governmental unit involved is no longer entitled to immunity....
[4, 5] We hold, therefore, that (1) a common law cause of action may be maintained against a municipal corporation for the tortious conduct of its police officers under the holding of Molitor v. Kaneland Community Unit Dist., supra, and that (2) par 1-4-5 of the Illinois Revised Statutes does not bar such direct action.
[6] It may be argued that plaintiff may not allege both common law and statutory causes of action. This would, however, be contrary to the provisions of the Illinois Practice Act, Ill Rev Stats (1965), ch 110, pars 43(1) and 44(1). Furthermore, an examination of par 1-4-5 shows no express limitation that the statutory remedy is to be exclusive. Thus, the statutory provision does not foreclose plaintiff from maintaining a common law cause of action against the municipality arising from the alleged tortious action of one of its police officers. Therefore, the judgments of October 19, 1964 and November 18, 1964, will be reversed and remanded with directions to deny the motions to dismiss Count Two of each complaint as to the City of Chicago.
[7] The Local Governmental and Governmental Employees Tort Immunity Act, Ill Rev Stats (1965), ch 85, pars 1-101 through 9-107, approved on August 13, 1965, does not affect the issues herein because it was not in effect at the time of the alleged occurrences.
[8] We next consider the allegations set forth in Count Three of both cases, which prays for a declaration that defendant, City of Chicago, pursuant to par 1-4-5, *212 be held directly liable to plaintiff for a sum in the amount of any judgment rendered against the defendant police officers. The statutory provision relating to declaratory judgments is found in Ill Rev Stats (1963), ch 110, § 57.1(1):
DECLARATORY JUDGMENTS. (1) No action or proceeding in any court of record is open to objecttion on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment, decree or order, if it appears that the judgment, decree or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.
Plaintiffs contend that even though the City is an indemnitor, a declaratory judgment may be entered against it on the condition that subsequently a judgment is rendered against the policemen. It is defendant's position that a judgment must be entered against the policemen before the City's liability as indemnitor may be resolved.
We are not called upon to resolve the issue because Rule 39, Part IV of the Rules of the Supreme and Appellate Courts of Illinois states in part:
The Argument shall be limited to the points made and cases cited in the Points and Authorities, and *213 in the sequence in which the points are made. A point made but not argued may be considered waived....
Plaintiffs did not argue this point in their briefs.
[9] We note that the issue of coverage raised under the indemnification statute is more complex than the same issue under a contract of indemnity. The trial court would have to determine whether the complained of conduct of the policemen was wilful and wanton. We find that the trial court did not abuse its discretion in deciding not to entertain the counts for a declaratory judgment. See Joint Committee Comments, SHA chapter 110, section 57.1, foot of page 224. Also see 26 CJS, 70, sec 11, Declaratory Judgments. The causes of action attempted to be stated in Count Three for declaratory judgments are premature.
The judgments for the City of Chicago on Count Two of the complaints are reversed. The judgments for the City on Count Three of the complaints are affirmed, and the causes are remanded for further proceedings not inconsistent with this opinion.
Judgments reversed in part and affirmed in part and causes remanded with directions for further proceedings not inconsistent with this opinion.
BRYANT, P.J. and BURKE, J., concur.
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551 So.2d 1341 (1989)
Aaron PIERCE
v.
CHARITY HOSPITAL OF NEW ORLEANS.
No. 89-OC-2233.
Supreme Court of Louisiana.
November 17, 1989.
Denied.
DIXON, C.J., would grant the writ.
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413 N.W.2d 277 (1987)
STATE of Minnesota, Respondent,
v.
Terry A. HOCKENSMITH, Appellant.
No. C8-87-769.
Court of Appeals of Minnesota.
October 13, 1987.
Review Granted December 18, 1987.
*278 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Paul R. Jennings, Asst. Co. Atty., Minneapolis, for respondent.
C. Paul Jones, Public Defender, Cathryn Young Middlebrook, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by LANSING, P.J., and RANDALL and CRIPPEN, JJ., with oral argument waived.
OPINION
CRIPPEN, Judge.
This is an appeal from an order in revocation proceedings for execution of sentences previously imposed. The questions presented are (1) whether the revocation court erred in refusing to modify the original imposition of consecutive sentences to run concurrently and (2) whether appellant's consecutive sentence for his second conviction should be reduced from 32 months to 24 months.
Affirmed in part and reversed in part.
FACTS
On June 29, 1983, appellant Terry A. Hockensmith committed two separate acts of criminal sexual conduct on two women in Crystal, Minnesota. In September 1983, appellant pleaded guilty to two counts of criminal sexual conduct in the second degree. Following appellant's plea, he was sentenced to consecutive terms of imprisonment of 24 months and 32 months. The sentencing court stayed execution of the sentence and placed appellant on probation. As a condition to his probation, appellant entered and successfully completed the residential and nonresidential phase of the Alpha House program, graduating on December 16, 1985.
On September 22, 1986, an arrest and detention order was filed because appellant could not be located by his probation officer. Appellant was later arrested in Kansas, where he and his family had moved. His unannounced departure from the state was linked to his belief that his chronic drinking problem might violate probation conditions.
After appellant returned to Minnesota, a probation revocation hearing was held on January 22, 1987. Because the original sentencing judge had retired, another judge presided. At this hearing, appellant admitted to the violations of his probation as alleged in the arrest and detention order that he failed to inform his probation officer of his change of employment and residence, and that his whereabouts were unknown. No legal challenge to the length of the original consecutive sentence was raised, although appellant himself argued for new, concurrent sentencing.
At the revocation hearing, the court revoked appellant's stay of execution and probation and imposed the original consecutive 24 month and 32 month terms. Appellant received jail credit of 173 days for the time spent in the Hennepin County Workhouse. Hockensmith appeals from the revocation order.
*279 ISSUES
1. Did the revocation court err by ordering the sentence executed as originally imposed rather than modifying the consecutive sentence to run concurrently?
2. Did the original sentencing court erroneously compute the sentence duration for appellant's consecutive sentence by failing to determine the sentence at the zero criminal history level?
ANALYSIS
I.
The trial court may revoke a stayed sentence for violation of probation conditions. Minn.Stat. § 609.14, subds. 1 and 3 (1986). Appellant does not dispute that the trial court made a lawful decision to require an executed sentence. The only authority of the revocation court, if it decides that the defendant will be incarcerated, is to "order execution of the sentence previously imposed." Minn.R.Crim.P. 27.04, subd. 3(3)(b); Minn.Stat. § 609.14, subd. 3(2)[1].
Appellant admits that he violated probation conditions, that he failed to inform his probation officer of his change of employment and residence, and that his whereabouts were unknown. He argues, however, that the revocation court should have altered his original sentence to make it run concurrently. He contends that this relief would be appropriate because he completed resident and nonresident probation, had no probation violations for nearly three years, and because, in his opinion, the current violation is of a technical kind. See A.B.A. Standards for Criminal Justice and Commentary, Probation § 5.1 (Approved Draft 1970) ("The public is not served by precipitate and automatic imprisonment following what under the circumstances might be * * a technical violation * * *."); (quoted in State v. Austin, 295 N.W.2d 246, 253 (Minn.1980) (Otis, J., dissenting)); see also Austin at 250-51.
We need not address the equitable arguments appellant raises because the law does not permit that change regardless of the equities. The revocation court properly ordered the execution of the sentence previously imposed. See Minn.R.Crim.P. 27.04, subd. 3. Once this decision was made, the court had no authority to decide whether the original sentence should run consecutively. Under our statute and rule, the court election is between executing or further suspending execution of the sentence.
II.
Appellant requests that the sentence for the second conviction of criminal sexual conduct in the second degree be reduced from 32 months to 24 months. He contends that if consecutive terms are imposed, the duration of the second consecutive term must be reduced from 32 months to 24 months in order to conform to the Minnesota sentencing guidelines and applicable case law.
In sentencing appellant for the two counts of criminal sexual conduct in the second degree, the trial court originally imposed a sentence of 24 months for Count I and 32 months for Count III, to be served consecutively. When the court imposes a consecutive sentence, the duration of that sentence is determined by taking the grid score for the appropriate severity level at the zero criminal history level. Minnesota Sentencing Guidelines II.F. The guidelines state:
For persons given consecutive sentences, the sentence durations for each separate offense sentenced consecutively shall be aggregated into a single presumptive sentence. The presumptive duration for offenses sentenced consecutively is determined by locating the Sentencing Guidelines Grid cell defined by the most severe offense and the offender's criminal history score and by adding to the duration shown therein the duration indicated for every other offense sentenced *280 consecutively at their respective levels of severity but at the zero criminal history column on the Grid. The purpose of this procedure is to count an individual's criminal history score only one time in the computation of consecutive sentence durations.
Minnesota Sentencing Guidelines II.F. (emphasis added).
Criminal sexual conduct in the second degree is a severity level VII offense. See Minn.Stat. § 609.343, subd. 1(c) (1986); Minnesota Sentencing Guidelines V. With appellant's criminal history score of zero, the presumptive guidelines term is 24 months. Appellant's second conviction, Count III, also criminal sexual conduct in the second degree, had to be treated similarly, in that the grid cell provides a presumptive sentence of 24 months taken at a zero criminal history level.
The appellant's consecutive sentence of 32 months for Count III was arrived at through an improper enhancement of his criminal history score to one, by use of his sentence in Count I by the trial court. This enhancement may only be used when sentencing concurrently, and may not be used when sentencing consecutively. Minnesota Sentencing Guidelines II.F.; II.F.02 comment; State v. Moore, 340 N.W.2d 671, 673 n. 2 (Minn.1983). The consecutive sentence of 32 months should be reduced to 24 months in order to conform with section II.F. of the sentencing guidelines.
A sentence not authorized by law may be corrected at any time. Minn.R.Crim.P. 27.03, subd. 9. Pursuant to Minnesota Rule of Criminal Procedure 27.03, subd. 9, and in the interests of justice, we elect to correct the error. See Minn.R.Crim.P. 28.02, subd. 11. We have considered, but find improper a remand in the circumstances here, where the record does not support a durational departure and the state did not request a departure at the original sentencing or here. See State v. Yanez, 381 N.W.2d 470, 472 (Minn.Ct.App.1986).
DECISION
The revocation court did not err in ordering the sentence executed as originally imposed. The trial court erroneously computed the sentence duration for appellant's consecutive sentence, and we correct the error.
Affirmed in part and reversed in part.
NOTES
[1] As indicated later in this opinion, an unauthorized sentence can always be corrected. Minn. R.Civ.P. 27.03, subd. 9. To present this issue to the revocation court, however, the defendant would have had to initiate postconviction proceedings under Minn.Stat. § 590.01-.06 (1986). State v. Fields, 413 N.W.2d 275, 277 (Minn.Ct. App.1987).
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538 F.2d 334
Bergerv.C.I.R.
No. 74-3050
United States Court of Appeals, Ninth Circuit
6/18/76
1
T.C.
AFFIRMED
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OFFlCEOFTHi ATTORNEY OENERAL~C&'EXAS
-AUSTIN
Bonorablo C. 0. Nurdoch
CoulltTAttorney
Hermrd county
aenard, TCX88
qurlIfI8d
who hold8 any offlue OS
or either the un1tod at8t.r
In 8ny clt7 or town In thi8
*I &'&Or the oplnlon that a deputy rhorlff
OmOt 80-8 L8 c&inVn Of the EXeOUtiV8 COr-
Bitt.8 Of a OOUXit~l hwever, It i8 9 UDhr8tmd-
lng tht If one voro to do 80, If thare vercno
lrregularltIe8, or fraud, la the holdlag of
lleotlona, the dOOtiOn8 vould be valid.
-
Honorable C. 0. Murdoch, Page 2
"Chestnut YE. Wells, 278 3. W. 465:
280 9. w. 351
oayle VI. Alexander, 'i'5
3. h'. (al1 706;
savage vn. umphrlon, 118 3. v. 893."
It vi11 be observed that the pertinent words of the
statute you cite (Article 2940, R. C. S.), and vhich ve empha-
nice, Are an follovsl
‘0 l l no r 8hrll anyone Sot ae ohalrnn
a ny off108 of prarlt or tru8t u nder l l l
*hIa State, l e l."
The prl.wwy irotor to be deterrlnrd In ansuerlng your
que8tIon an 8tated, 18 whether the plain tenor OS the above
8peoiallyquoted and lapha8iSed vord8 of the 8tatute are to be
con8Id8I'edaS mt%AdatoryOC dIX%otoz'y. IA the ea8e of 0ayle YE.
Alexander, (Tex. Clv. App.) 75 S. W. (36) 706, at p. 708, the
:dI8tIUOtiOiXbotVMn the tV0 temn a8 applied t0 Artlole 2940 10
Stated thU8ly:
** l l, & -tOly pFOVi8iOn in a 8tat-
ute 18 one, the 0ml88i0n to follw vhloh rendem
the prooeeding to vhIoh It relate8 lllegrl aad
void, While a di.l’OOtO~ prOVi8iOA 18 OAe, the
obeemanee Of rhiUh I8 XlOtA8Oe88aw t0 the
Validity of the prooeeding. A 8tatute my be
lWldatOry In SOm8 X'e8WOt8 and dIreOtOrJ in
Oth8P8. 59 c. J., p. 107~, 8 63001owrier v.
ca8tock, 108 Ark. 515, 159 S. W. 1097, par.
3; Hoaklng Power Co. v. HuI-I~oA, 20 Ch.IoApp.
135, 153 A. E. 155, 156, par. 1; Deibert v.
Rhoden. 291 ?a. 550, l&O A. 515, 516, 517,
Parr. 2, 3. 8ad 4. There 18 no unIver8il
rule or sblolute te8t by which direoto~ pro-
vlslon8 in s 8trtute my in all oirouwtanae8
be dI8tInguIahed from those vhioh are mandatory,
but In the QetermInatIon of thir qUe8tiOXL, a8
every Other qUe8tiOn Of 8tatUtOTI OOli8tNOtiOP,
Honorable C. 0. Murdoch, Page 3
be given a manclatorysigAifIaanae to effeat
the legislative intent. On the other hand,
the language of a statute, hovever mandatory
in form, may be deeasd dlreatory whenever
fhe leglrslatlvepurpore OUI beat be carried out
by SUOb UOA8tPUOtiOA. 59 c. J., PP. 1072. 1073,
I 6311 Burton v. McOulm (Tex. Clv. App.) 3 S.U.
(?d) 576, 583, par. 15s Haman City, II.dc'0.R.
Co. v. Roche8ter Independent School Diet. (Tex.
Clv. App.) 292 9. Y. 964, 965, par. 1; Valley
Bask v. Mlcolm, ?3 Arls. 395, 204 P. 307, 311,
par. 4; People lx rel. Tho4~80n T. San Borxurdho
llighSohool Dl8t., 62 Cal. App. 67, 216 P. 959,
per8. 3 8Bd 4. he legl8laUve iAte& In 8~-
aotIa#t the art1 e under OoMideration -8
8videAtlY to re8trlot th8 .8eleotioAof lleotian
officer8 to those vho vere free from thq 8
or interer
a failure to pq l poll tax.- 30 f8r a8 the 8eleo-
8uOh rituatloa Is prec!ent;din tbI8 case. But
8hotid the prOVI8IOA8 of 8aId artiole In that
pha8e of Its appliartlon be held maMatorT, It
doe8 not Moea88rlly follov that vhea a per8oa
nund In said artlole has been 8eleoted a8 821
eleatlon offloer for a pertioular votlag pm-
OiPOt, snd his 8eleOtiOn ha8 A& been a88ailed
but bar been soquie8oed IA w th8 qualified
electors of auoh preoinot by partlolprting IA
the eleatlou held therein, and the vote8 os8t
In suoh preolnot have been fairly and correotly
oountcd md tabulated aad return thereof duly
made, Mmt euoh eleotlon a8 to nald precinct
should, rolely by reason of the pertlolpetlon
of such el8CtiOA offioer iA holding the am.
. ..,
Honorable C. 0. Uurdooh. Page 4
be declared void, the returns thereof exoluded
from the 04nv4aa of the votes mat In said
elactlon in the entire county, 8nd tha voters
of such preolmt thereby ln effeot dlafmnchlsed."
-(Emph4ala ourn).
In the above oaae, Oayle aad Alexunlar ware opposing
caadId4tea for the office of a8aea8or And oolleotor of tuea
or xcLenllAnCounty. After the election, the o~nvA88 of return8
showed Aleunder tha VlAAar, aad 0ayle rought to have the 8lec-
tlon in low boxes of the oouut~ deolmed A nullity on the
ground that 0ertAi.npreoiuot election OffiCIdL8 vare dlaqrull-
fled to rot. Of the ohAllenged predwt officers of eleotlon,
the trIA1 oourt found thAt four ven 8ohool truteea at the
tlma or the lleetlon; thAt one aAn hold A *purported AppoInt-
Bent * a8 deputy 8herlff, but hod never tAkAn the orth nor re-
calved oompena4tIon 8s luoh offloer; rrd that three had been
aotlng as deputy tax aaae8mora for Alexander, the appellee,
from January to I(ayof the year of the election, vhlah vaa held
in July.
The court furtbsr found th4t th8 lleetlon ~88 fairly
and honsrtly held; that the aeleotlon of the 4bove mentioned
election OffIceP8 ~68 not fFaUdUleAt1~ bmqht about; that their
nerViOe bid AOt 088t 8U8piOiOn Or doubt UpOn th8 I'OStitOf tb
eleotianfAnd thAt the votera pArtIaipAtIn@ in the eloctlon rhould
.’ IlOt b. di8f?UtOhi8ed beOAU8e Of #U&S 88l’VlCe.
In Addition to the above quoted dI88ertAtiOllupon *m8n-
datorf and *dIreotorf provIaIona of the 8tetute, the UAOO Court
of Civil AppeAlI, In AffIraIng the trlrl court, 8180 relied upon
the prlnolple ltAted In the earlier oaae of &VW vs. Uaphrlea,
(Tex. 01~. ADD.) 118 8. Y. 893, wherein the loo41 optlan lleotlon
under aon8IdentIon 1m8 upheld derpite the faot thAt A olty Alder-
man aoted AS 4n lleotlon judge, beeau8e 4nother of the JuQer 1~8
not dIrqu4lIfIed. Pointing out th4t in the pending case them
vere IA each voting preoinot, in addition to the obrllenged of-
flalal other judgea and alerka p4rtloIprtlng therein, the S4v4ge
vs. Umphrlea rule ~48 4pprored by the Y4co Court in the Oayle vs.
~lehnder case, aupra.
Upon the queatlon before ~8, ve think It appropriate,
4apaalally in viev of our cIt4tIon or the oa80, to quote from
avage v. Umphrlen (11B 8. U. 893, at p. 901):
ffonorableC. 0. Humloah, Page 5
“The general rule IS thAt Statutory provi-
alone regulating the conducting of public elec-
tlons, if not uule nandetory by the axpreaa
teraa of the l&v, will be oonatrued 6s so far
directory that the lleotlon will not be mill- '
flea by UN Irre~larltie8, not frAudulentlY
brought About, when the departwe from the
pmaorlbed method was not so great 8a to throv
A 8ubatAntIAl doubt oa the I%8Ult, And vh8re
It la not shorn that thp~ vaa any obstacle to
4 rrir And free expn8sl.m of the will of the
electors. 8184k on Interpretation of b%VS, p.
353. It la said thott 'There la nothing better
settled than thst the.wtr of election officera
de facto, who AW in under color of election
or appointaent, am A8 valid. a8 to third prr-
tie8 And the pUbllo, a8 those of offloern de
f - The doctrine tlvrtelector8 may be dI8-
rFZhinea becAUSe one or eon of the judge8
or lnapeotor8 0s election did not poa8eaa all
the qUdififJ@titXi8requlmd rinds
by 18~ no
support In the deoi8Iona 0s AUY judIoI81
trIbune.1 15 cyc. 311. t here if the
Allegationa in Appellmtr @mer a 8wndment
8e he, ln violetion of the tit?,
aoted A0 A ju@e Of the election, It ohotid be
deOiAF8d do 8.d Void A8 t0 that pZWO%ILOt.
It 8eema to us thAt the qwatlon 48 to the
vslidity or i.XWA~idityof the election should
be determIned As though he hod not hated at
all, in the absence of my allegAtion that he
did MythIng th6t v0rrla tend to change the x-e-
8tit. Jh th 1 8
viw the lleotfon IA that p m-
clnot should be regerded As having been pm-
aided over by only one judge, for tha coUntY
ocnumlealonsra'court v4a required in voting
;...b~-.
. .‘. , ,
Honorabls C. q. &mlooh, Page 6
preclnctr, vbw8 there vore 1088 than 100 vot-
.eravho bnd prld tholr poll tax mid received
-'theiraertlflo&tes of exeqptlon, to appoint
tvo reputable,men. vho vere qualified votsrr,
a8 Judge8 of the election, aad It vi11 be
preaured tha$,lt performd thl8 duty. We
lm not pAp‘Nd, therefore, to hold that,
booau8e oae of the 9artlos sppolntod a8 Judge
vaa prohIbited m the lav from rotlng a8 auoh,
vould vitiate, 80 ae to render null, the elec-
tlon ae to etmh praolnot, p-aided over by
the a tb erjudge, vh o ,in th elbaenoe of an
llle g h tlo n oontruy, mu8t be preeumed
to the
a8 &mpeteat to rots fop to 80 hold vould be
to df8frubahl8e all th8 quallflod eleotors
vho voted rt ula preolnot, vlthout it apperr-
ing that the lleetlon va8 in any vay affeOted
br being preerldedover by one judge, instead
of tvo a8 required by the 8tatute. We there-
fOl’S OVWPUh tb a88i@tMllt. ’ (&E9hl&818 OUl’8. )
Your referonoe to the oa8e or Che8tIiUtv8. Well8 var
noted; Ye flad tvo di8tinat oa8e8 on the cited page8 of the
South Ue8tem Report*. - fi.P8t 18 che8tnut T8. we118, (TSX.
Cit. AFT.) 278 9. W. 565, the wooad 18 Cheatnutt ‘18. Uelh,
(Tex. Cl*. App.) 280 8. U. 351. Although the 8~8 partle8 89-
peer lltlgent, the numben of the oases are dlfierent8ad the7
89lWU’ t0 ba 8epUk 8pit8.
In any event, the Court of Civil
A9~18 ia each oaqo pOint8 out that the elections held vere
"8peOla.l"once 8nd th8t the prorl8lons of vhat fe nOV codified
88 A&101. 2940, Rotlred Clril Btatutes, being E part of the
Tern11 Rlootlon Lar, did not apply. We believe a further 8tudy
Of the oa8e8 vfll aosrtinoeyou of their lnnppllaablllty here.
he, al80 an n8 alal" lleotlon8, the 01808 of walker v8. I(obler,
(lb. civ. App.Y 105 8. W. 61; Ibid, (Sup. Ct., nn8vering oerti-
fled aue8tloar) 103 8. W. 990; Xx mrte Ander8on, (Tex. Cr. A99.)
102 3. Y. 727~ 8111 v8. Smlthvllle Independent school Dl8trlat.
(Tax. Clv. App.) 239 8. Y. 987, 9. 991; Hlller WI. Tucker, (Tex.
Civ. App.) 119 8. U. (2d) g?.
In the aa8.eof Ruff V8. Duffleld, (Tex. 01~. App.)
351 3. W. 298, there ta8 (LCOdXJ8t of an lleotlou held to fill
the office of oountr u&d dl8trlot olerk of Wfllrcy Countr at
the gmmal llea tfo a ~The votes of flrteen (15) percronevere
objected to beamlee the pre8idlng offlcer at the box vhere the
Eonorable C. 0. Xurdoah, Page 7
persons voted V&s also act143 aa 9oatmnster, end he alone vrote
hla name on the back of eaoh of the ballots. Holding that the
.vote8vere properly alloved the 00Urt 8tm88Od the point that
the prerlding judge va8 not the poetslaster"but merely taking
care of the office until other arruyasenta vere Ilide."
The mO8t lWOellt 018e Ve haYe found 18 that Of ge8bItt
YE. Coburn, (Tex. Clv. App.) 143 3. w. (26) 279. Oppcalng cendl-
date8 fer the Democratlo nO@liatlOa for cmnty Com188iOner be-
came partle8 to a oOdX8t lollovIng the 88COnd 9rlIBaryof 1940.
The faot8 and oontentlom on the point 8ufflolentlJ l9pear in
the follovlag quotation froa the oplnlonr
"Appellant contend8 that all of the
VOtO8 CJa8tat the %IIie VOthg box, vhere
lppellw reoelred a va8t Mjorftr thereof,
8hotid have been held Illegal and not count-
ed beoaure tbs partr vho sated a8 the pre-
8lding judge of 8aid voting box had not been
properly appointed the pre8idIng juQe there-
Of. It dOe8 not appear that 8ueh party had
been eXpre88lr 8elected by the IkroCr8t10
Executive Comalttee of the aounty to hold
tha election on the occasion in question.
Howver, it doe8 appear that he va8 the
mBOorat10 ooa1tteemm frcm that preolnct
and that It ha been the ou8ton for year8
fo r laoh preolnot ahalraan of said county
to 8erve a8 the preetdlag judge of the elec-
tion ln hi8 preolnot. The rule 8eeIU8to be
that the 8tatute8 vlth .referUme to the m8n-
net of l9polatIug eleotlon ofricer am
dlmotory end that Irregularltla8 therein
vi11 not affeot the validity of the election.
In SUoh Oa8e8 vhere them 18 a0 prote8t on
the part oi the VOter8, the will b8 held
to have ratified the lllegeI appointmnt or
uaauthorlred a88um9tion of ruthority of the
party vho 8erve8 a8 8uoh deotlon judge.
HI11 v. iialthvllleInd. School Dist.. Tex.
Clv. App., 239 3. U. 9871 L&aver v. State.
27 Tex. Clr. App. 453. 66 3.Y. 256. It doe8
not appear that there va8 q protest on the
part or the voter8 vlth reieronae to the
proaiding judge la the voting box in Question.
we therefore h&d that the oourt did not em'
.
Honorable C. 0. Murdoch, Page 8
in refu8lng to hold es illegal the votes
counted at 8Pld Donle votIAg box.”
Froa the above lUthOriti8e and other8 u8mlned:by us,
ve think it extremely doubtful that the same realt vould be
attained vhere a aounty ebalrma~'s ell lblllty should be ohal-
lewed. Inever ca8e y lxamlaed by u8 7and after exten8lve
searah ve have not foaad on0 l.n~olvlnga county ehalmen , the
COwt8 have emid upan ooatertr belng brought after the l1latlon,
that - burdma lW8t8 WOa OOllte8tMt8 t0 8hWxt the lU8Ult8
of the lleotlon vere affeotti or ohangea bT the 1rreguLa~
departure from the 8tatuto. we can aoaoeive that 8uoh 8 tie
vould be oonaldend 8afe and 8ound insofar a8 applicable to
elsatlon judge8 or alerk8 vho8e dutIe8 am largely 8ilnl8terlal
and vho8c vork oar be oheaked by other per8on8 vhore lllglblllt~
vould not be IA que8tloa, vhema8 a different cono1u8lo~ Eight
vell be reached IA the ea8e of a county chalnun, the nature of
vhoac dUtia8 aa fixed by lav mae88arlly involve m8ny act8 of
OffiOi~ dlroretlon, a8 Veil 88‘Other 8Ote Of mfnfrteril~ ~MAc-
t1aAing. We deer it uDaeae88ary to attempt to li8t here 811 of
the88, but ru??loe it to point out that he lo the pmnlding of-
fleer over all meting8 of the ootmt~ comnlttee; he 18 ?urAl8hed
IA ldv8Aoe of eleotlon8 the llrt8 of qualified votere; he ia the
recipient of the return8 br lleotlon and custodian of every one
Of the bbllOt8 OtL8tbt the e&OtioA; he dOOl&re8 the aW8tit, md
certifie8 nw to other proper OfffCibl8; he pm8lde8 over all
OOUaty ooPVentiOA8;he 18 by VirtUa Of hi8 OffieO an eX-OffiCiO '
mmber of all dI8trict lxeautlve committeea o? hi8 party; he
colleot8 and disburse8 the expeme Monet needed to conduct the
prlmarles; he lppolnt8 the preainct presldlng judgea vlth the
approval of the ueautlve oomlttee; IA geIura1 election8 he may
~PPOfXLt8U9WTi8Or8 -- In rhort, he 18 one of the moostIBpOrtaAt
fogs in the rehlnerj of our election ey8ter. Ylth ju8t a little
slip' here aad a~ rrlnadvertenae"there, he can, un.le88of UA-
qUe8tlonable Integrity and con8olentlou8 aeration to the high
trU8t lmpo8ed upoa hla, in m and various vayr dlONpt the
order17 8nd boaert prooedum aontelplated by the levmekere to
1Aew the purIt7 of the ballot -- the strongest comer atone
in omr 8truotum of a ire8 government.
A d.eputTlherlff certainly holds an “office of profit
Or trust”
under the lava of this State. He 18 ao moognlsed by
both the 8tatutow 8.ndthe case lav of TeXa8. Be 1s appointed
by the 8heriff, to 'oontlnue In offloe" during the Plea8ure of
his prlnolpebl he haa paver md authorltr to perform all the
act8 8~d duties of the sheriff hluelf; he mu8t take the offi~lel
. . .
l!,norablsC. 0. Murdoch, Page 9
oath. See Revised civil 3XfUtC%. ArtlClen 6809, 6&o, 3884,
3891, 3902, 31024 Code of Crlmlnal Procedure, Articles 30, 44;
M:ller vs. AlexnAder. 13 Tex. 497, 506: Tovne vs. Harris, 13
512; Ytnte vs. Brooks, 42 Tax. 6?; Murray WI. State,
Tex. fiO'1,
0
"' s. U. (26) 274; 34 Tex. Jur. 601.
It aeara 80 self-evident an to be trite to say that a
deputy sherlrf ha8 a vltrl and per8onal lnterert IA ths outcome
of every election a?fectIAg hi8 prinolpal. Hi8 IlaB lay 88 V411
be on the ballot, for vlth the defeat of his sheriff he ca88es
t3 be 8uch officer, 108lag AOt only hit title and office but his
emOhEeAt8 aa veil.
Ue agree vlth your oonolu8lon that a deputy sheriff la
not qualified to 8eme aa 8 oount.7ohalrmn of the Democratic
party.
We further believe that under the authorities heralA
di4CU88Od, he could unque8tIonablj be ousted from a4rVing or
attempting to 8erve in 8uch oapaoity. Upon the proposition you
assert that if one vere to do 80, the eleotlcum vould be valid,
absent proof Of Irre~arltIea or fraud, ve expmer no opinion
at thi8 time due to the utter laok of any such aa4e hevlng ap-
peared a8 ooning before any appellate court of thla State. It
is dlfflault for u8 to oonaelve of the electorate permlttlng the
- question to reach that stage, or for the officer In question,
whoever he may be, to Fnalst upon it.
Yours very truly
Benjamin Uoodall
.L_. Assistant
BW:RS
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62 N.Y.2d 851 (1984)
Bee Jay Industrial Corp., Appellant,
v.
Charles Fina et al., Respondents.
Court of Appeals of the State of New York.
Decided June 7, 1984.
Richard M. Gordon for appellant.
Harold J. McLaughlin for respondents.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (98 AD2d 738). We note that defendants' motion for summary judgment was itself predicated on the absence of a written contract as required by the Statute of Frauds (General Obligations Law, § 5-703, subd 2).
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528 S.E.2d 849 (2000)
242 Ga. App. 80
BOOKER
v.
The STATE.
No. A99A2464.
Court of Appeals of Georgia.
January 26, 2000.
*850 Monique D. Moyse, Decatur, for appellant.
Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.
PHIPPS, Judge.
Following the denial of his motion for new trial, Quenton Booker appeals his convictions of burglarizing the residence of Keshia Rodgers and Stacy Styles, committing an aggravated assault upon Styles, committing an armed robbery and aggravated assault upon Ray Collier, and possessing a firearm during the commission of a felony. Ricky McCoy, one of Booker's accomplices in the crimes, appeared as a key prosecution witness but disavowed his pretrial statements implicating Booker. Then, in an effort to convince the jury to believe those pretrial statements, the prosecution was allowed to establish the accuracy of information McCoy provided to authorities concerning crimes in which Booker had not participated. We find prejudicial error in the admission of this evidence and reverse. Because we find no merit in Booker's challenges to the sufficiency of the evidence to support his convictions, the case may be retried.
Viewed in the light most favorable to the verdict, the evidence showed the following. Ray Collier is a Miami drug dealer who visited Atlanta with his cousin Samuel Collier in December 1994 and sold cocaine to Booker. On the evening of December 15, either Collier or his cousin was involved in some sort of altercation with Booker. Afterward, the Collier cousins went to an apartment where Rodgers and Styles lived. In short order, Booker, McCoy, and Felipe Wyatt appeared at the apartment and began banging on the door. McCoy testified that his intent was to extract revenge for the incident with Booker or take drugs and money thought to be in Collier's possession or both.
When no one opened the door, Wyatt kicked it down. As McCoy proceeded to the rear of the apartment, Booker became involved in a physical struggle with Samuel Collier in the kitchen. In the course of the struggle, Collier fell down the stairway leading to the apartment and decamped to a nearby hotel where he called the police. In the meantime, McCoy found Styles hidden in *851 her bedroom closet, prodded her in the stomach with a gun, and asked where "it" was. Ray Collier attempted to escape from another bedroom by jumping from a third-floor apartment window onto a concrete walkway, thereby breaking his ankle. Thus immobilized, he was overtaken by McCoy and Wyatt. They inquired as to the location of drugs or money, and he responded that there was a sum of cash upstairs in his boot. Booker went upstairs and retrieved approximately $300 from the boot. After Booker came downstairs, Ray Collier was shot twice while lying on the ground. Booker, McCoy, and Wyatt then fled the scene, after which Booker and Wyatt split the money.
After the crimes in this case were committed, McCoy was arrested on charges arising from a triple execution-style homicide at a McFrugal rental office on January 6, 1995. He informed police and prosecutors of the identity of the perpetrators of the crimes in this case, the McFrugal murders, and two other homicides. Specifically, McCoy gave statements showing that on December 14, he, Wyatt, and Ralph Henderson were involved in the murder of drug dealer Donald Blair. McCoy also stated that on December 15, he, Booker and Wyatt perpetrated the crimes involving the Collier cousins, and that Alvin Smith and two others accompanied the three perpetrators to the crime scene in a getaway van. In addition, McCoy informed the authorities of his, Wyatt's, and Smith's involvement in the December 30 murder of Donny Holland, another drug dealer. And McCoy related his, Wyatt's, and Smith's involvement in the January 6 McFrugal murders.
At trial, McCoy appeared as a State's witness. Although he acknowledged his and Wyatt's participation in the December 15 offenses involving Collier, he testified that Booker did not participate. When asked whether his trial testimony was different from his pretrial statements, McCoy variously asserted that he was coerced into making the statements, that he had been lying, that he was promised things that had not materialized, and that he did not make the statements. Over defense objection, the prosecution was then allowed to question McCoy concerning pretrial statements made by him regarding the crimes in this case as well as the other homicides and to show that the information McCoy provided had led to the entry of guilty pleas by all identified culprits except Booker. The prosecution also elicited testimony from McCoy showing his disgruntlement because he had not received a promised prison transfer.
In closing argument, the prosecutor made extensive comments on the numerous crimes in which Booker was not involved, about which McCoy had provided evidence, including the several murders, and asked the jury to "do something about the crime problem" in the county.
1. In an array of assertions, Booker challenges the sufficiency of the evidence to support his convictions.
(a) Booker argues that there is insufficient evidence of armed robbery because the indictment alleged taking money and cocaine from Collier, but he asserts no cocaine was taken, and money was not taken from Collier's "person" or "immediate presence" as required by OCGA § 16-8-41(a).
There is no merit in these arguments. An over-inclusive list of items alleged to have been taken in an indictment for armed robbery is not fatal to the validity of the conviction.[1] The evidence authorized the jury to find that the money found in Ray Collier's personal possessions in the apartment from which he had leaped was within his "immediate presence" within the meaning of OCGA § 16-8-41(a).[2]
(b) Booker claims that his burglary conviction cannot stand because of an absence of evidence to support the charge that he entered Rodgers and Styles's apartment with the intent to commit theft. Booker's conduct in splitting the money with Wyatt after commission of the crimes authorized *852 the jury to find that Booker possessed the requisite intent.[3]
(c) Booker argues that the evidence showed that only McCoy committed the aggravated assault upon Styles. The evidence authorized the jury to find Booker guilty of this crime on the ground that the act was done by Booker's co-conspirator in pursuance of the conspiracy.[4]
(d) Booker challenges the sufficiency of the evidence to support his conviction of aggravated assault upon Collier because of a conflict in the evidence as to whether the shooting was done by him or by McCoy and Wyatt. This conflict was for the jury to resolve. Moreover, even if McCoy and Wyatt did the shooting, Booker would be chargeable with the commission of this assault under a conspiracy theory.
(e) Booker challenges the sufficiency of the evidence to support all convictions on the ground that there was inadequate corroboration of accomplice McCoy's testimony.
Actually, McCoy implicated Booker in the crimes through prior inconsistent statements admissible as substantive evidence[5] rather than in his trial testimony. In any event, testimony given by Rodgers, Styles, and Samuel Collier adequately corroborated Booker's participation in the crimes (as well as his possession of a weapon).[6]
2. Booker contends that the court erred in allowing the State to elicit testimony about pretrial statements given by McCoy concerning the five homicides in which McCoy and persons other than Booker were involved. The complained-of testimony was given by Douglas, the investigating detective in both this case and the McFrugal murders; Geary, one of the attorneys who prosecuted the McFrugal case; and McCoy. Booker also complains of the prosecuting attorney's references to these other crimes in closing argument.
The trial court overruled Booker's objections to the admission of the evidence, based on the prosecutor's argument that he was seeking to impeach McCoy's exculpation of Booker at trial by showing the truthfulness of his inculpation of all other criminal perpetrators prior to trial. The purported impeachment of the witness in this manner amounted to an improper attempt to bolster his credibility by showing his veracity in matters irrelevant to the issues being tried in this case.[7] These matters involved independent offenses, consisting of five homicides, which do not satisfy the requirements for admissibility at Booker's trial.[8] And evidence of these crimes harmed Booker by showing his association with individuals who had committed infamous crimes. The court thus committed prejudicial error by admitting this evidence. It follows that the prosecutor's closing argument was improper.
3. Also improper was the prosecutor's reference in closing argument to murder cases he had successfully prosecuted without testimony, obviously, from the victims. These comments were made in response to defense arguments concerning the fact that the victim Collier did not testify. Although the prosecutor certainly could have argued that the law imposes no requirement that the victim testify and given murder cases as an example, his reference to other cases in which he was involved amounted to an improper comment on facts not in evidence. "[T]he law forbids ... the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice *853 the accused."[9]
4. In other assertions, we find no merit.
(a) The court's jury instruction on the corroboration requirement for accomplice testimony contained no expression of opinion whether the evidence showed that McCoy and Booker were accomplices.[10] The court did not err in giving this jury charge as there was evidence so showing.
(b) The court committed no error in allowing certain police officers to testify that while Collier was lying on the ground at the crime scene, he explained what had happened and said that Booker had shot him. The court's determination that this testimony was admissible under the res gestae exception to the hearsay rule was not clearly erroneous.[11]
(c) The court did not err in overruling Booker's hearsay objections to testimony from Douglas and Geary showing McCoy's prior inconsistent statements concerning Booker's participation in the crimes in this case. "The prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence ... and is not subject to a hearsay objection."[12] The State substantially complied with the requirement that it give McCoy an opportunity to explain or deny the statements.[13] The State never sought to admit any taped or written statement in evidence.[14]
(d) Because the trial court read the indictment verbatim to the jurors and instructed them that the State was required to prove every material allegation of the indictment beyond a reasonable doubt, the court's recitation of inapplicable parts of the statutes proscribing possession of a firearm during the commission of a crime and aggravated assault did not create a reasonable probability that Booker was convicted of these crimes in a manner other than that alleged in the indictment.[15]
(e) Remaining issues involve matters that either were not preserved by proper objection or are unlikely to recur on retrial.
Judgment reversed.
JOHNSON, C.J., and McMURRAY, P.J., concur.
NOTES
[1] Denson v. State, 212 Ga.App. 883, 884(2), 443 S.E.2d 300 (1994).
[2] See Welch v. State, 235 Ga. 243, 245(1), 219 S.E.2d 151 (1975), and cits.
[3] See generally Simpson v. State, 265 Ga. 665, 461 S.E.2d 210 (1995).
[4] See Short v. State, 234 Ga.App. 633, 634-635(1)(a), 507 S.E.2d 514 (1998).
[5] Knight v. State, 266 Ga. 47, 48(2), 464 S.E.2d 201 (1995).
[6] See generally Givens v. State, 227 Ga.App. 861, 862, 490 S.E.2d 530 (1997).
[7] McCoy was, however, subject to impeachment through the State's showing his prior inconsistent statements concerning Booker's involvement in the crimes in this case, as well as the fact that McCoy was motivated to recant these statements because he had not received a prison transfer.
[8] See Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991); Stephens v. State, 261 Ga. 467, 468-469(6), 405 S.E.2d 483 (1991).
[9] (Citations and punctuation omitted.) Simmons v. State, 174 Ga.App. 171, 177(12), 329 S.E.2d 312 (1985).
[10] See generally Ladson v. State, 248 Ga. 470, 477(11), 285 S.E.2d 508 (1981); Sims v. State, 266 Ga. 417, 418(2), 467 S.E.2d 574 (1996).
[11] See McKinney v. State, 218 Ga.App. 633, 634(1), 463 S.E.2d 136 (1995); see generally Andrews v. State, 249 Ga. 223, 290 S.E.2d 71 (1982).
[12] (Citations omitted.) Knight v. State, supra.
[13] Compare Horne v. State, 204 Ga.App. 81(1), 418 S.E.2d 441 (1992).
[14] Compare Dickey v. State, 240 Ga. 634, 639(3), 242 S.E.2d 55 (1978).
[15] See Harwell v. State, 270 Ga. 765, 766(1), 512 S.E.2d 892 (1999), citing Martin v. State, 268 Ga. 682, 685-686(8), 492 S.E.2d 225 (1997).
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2005 UT 28
State of Utah, Plaintiff and Petitioner,
v.
Liza Victoria Corwell and Rebecca Champneys, Defendants and Respondent.
No. 20030667
Supreme Court of Utah.
FILED April 22, 2005
This opinion is subject to revision before final publication in the Pacific Reporter.
Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Lana Taylor, Salt Lake City, for petitioner
Patrick L. Anderson, Kent R. Hart, Salt Lake City, for respondent.
PARRISH, Justice.
¶1 Defendant Liza Corwell entered a conditional guilty plea to attempted tampering with evidence. She subsequently moved to withdraw her plea, claiming that the district court had not strictly complied with rule 11(e) of the Utah Rules of Criminal Procedure, which governs the entry of guilty pleas. The district court denied Corwell's motion. The court of appeals reversed, holding that the district court failed to strictly comply with rule 11(e) because it had not adequately discussed Corwell's right to a "speedy trial" and had not specifically delineated the limits that would be placed on her right of appeal if she pleaded guilty. We hold that the court of appeals erred by taking an unnecessarily narrow view of the strict compliance requirement. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In March of 2001, narcotics detectives investigated a tip that Corwell and a companion, Rebecca Champneys, were engaged in illegal drug activities at a motel in Salt Lake City, Utah. After arriving at the scene, knocking on the door, and identifying themselves as police officers, the detectives observed through the window that both Corwell and Champneys were attempting to conceal items within the motel room. As a result of their observations, the detectives forced open the motel room door and conducted a search, which ultimately revealed that both Corwell and Champneys were in possession of controlled substances and drug paraphernalia. Consequently, both Corwell and Champneys were arrested.
¶3 On April 4, 2001, Corwell and Champneys were charged with tampering with evidence, a second degree felony; unlawful possession of a controlled substance, a third degree felony; and unlawful possession of drug paraphernalia, a class B misdemeanor. Corwell and Champneys filed motions to suppress the evidence obtained from the search. The district court denied the motions and scheduled trial for Monday, December 10, 2001, with a joint pretrial conference to be held the preceding Friday, December 7, 2001. At the pretrial conference, Corwell and Champneys each entered a conditional plea of guilty to attempted tampering with evidence, a third degree felony, specifically reserving their rights to appeal the denial of their motions to suppress pursuant to State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988). In exchange for their conditional guilty pleas, the original charges were dismissed.
¶4 In conjunction with entering her guilty plea, Corwell signed a plea affidavit stating that she understood both the nature and elements of the crime to which she was pleading guilty and the effect such a plea would have on her constitutional rights. Specifically, the plea affidavit contained a clause stating, "I know that I have a right to a trial in open court by an impartial jury, and that I am giving up that right by pleading guilty." The affidavit also contained the following clause pertaining to Corwell's right to appeal:
I know that under the Constitution of Utah that if I were tried and convicted by a jury or by the Judge that I would have the right to appeal my conviction and sentence to the Utah Court of Appeals or, where allowed, the Utah Supreme Court, and that if I could not afford to pay the costs for such appeal, those costs would be paid by the State. I understand that I am giving up these rights if I plead guilty.
Corwell's counsel indicated on the record that he had reviewed the plea statement with Corwell and that he believed she understood the statements contained therein.
¶5 Prior to accepting Corwell's guilty plea, the district court conducted a plea colloquy. It began by asking Corwell if she had had sufficient time to review the plea affidavit and if she understood that document. Corwell answered both questions in the affirmative. It then asked Corwell if she understood "the importance of the rights that [she would] give up by pleading guilty." Although the record indicates that Corwell's response to this question was inaudible, the fact that the district court continued the plea colloquy without interruption suggests that Corwell responded in the affirmative. The colloquy then proceeded with the following exchange between the district court and both defendants:
THE COURT: Now, if you give up your right to have a trial which is scheduled next Monday, do you both understand that you give up an [sic] important and significant constitutional and statutory rights as outlined in the paper you both read? Do you both understand that?
DEFENDANT CHAMPNEYS: (Nods head in the affirmative).
DEFENDANT CORWELL: (Nods head in the affirmative).
THE COURT: I want you also to understand that some of those rights I want to talk with you about today, just to make sure that I'm satisfied you're clear. If you plead guilty, there's no trial next Monday. Do you understand that?
DEFENDANT CHAMPNEYS: (Nods head in the affirmative).
DEFENDANT CORWELL: (Nods head in the affirmative).
THE COURT: Do you want to give up your right to have a trial next Monday?
DEFENDANT CHAMPNEYS: (Nods head in the affirmative).
DEFENDANT CORWELL: (Nods head in the affirmative).
¶6 Prior to this exchange, counsel for Champneys, Corwell's codefendant, had informed the district court that both Corwell and Champneys would enter conditional guilty pleas to attempted tampering with evidence, reserving their right to appeal the denial of their motion to suppress pursuant to the rule enunciated in Sery, 758 P.2d at 939.[1] The district court later explained, "Which, so everybody is clear on that, means you can appeal it." Counsel responded, "That's correct."
¶7 Immediately before accepting Corwell's guilty plea, the district court asked both defendants if they had any questions or were unclear about any of the rights they would give up if they pleaded guilty. Defendants did not raise any questions. The district court then asked defense counsel for both defendants if they had any other questions they would like the court to ask their clients pursuant to rule 11. Corwell's counsel stated, "I have nothing, Your Honor." Expressing its belief that Corwell's guilty plea was entered knowingly and voluntarily, the district court accepted it.
¶8 On March 29, 2002, the district court sentenced Corwell. On April 26, 2002, Corwell filed a notice to appeal her final judgment, and three days later, on April 29, 2002, Corwell filed a motion to vacate her conviction and withdraw her plea. The court of appeals stayed Corwell's appeal and temporarily remanded the case to the district court to rule on Corwell's motion to vacate. The district court denied the motion, holding that the plea colloquy and statement properly demonstrated that Corwell had knowingly and voluntarily entered her guilty plea.
¶9 The court of appeals reversed. It held that the district court had failed to strictly comply with the requirements of rule 11(e) when it failed to discuss Corwell's right to a "speedy" trial and when it failed to inform her of the specific limitations on her right to appeal. State v. Corwell, 2003 UT App 261, ¶¶ 11, 20, 74 P.3d 1171. The State petitioned for certiorari, which this court granted. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).
STANDARD OF REVIEW
¶10 "On certiorari, we review the decision of the court of appeals, not the decision of the [district] court." State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995). We must determine "whether that court accurately reviewed the [district] court's decision under the appropriate standard of review." State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242. The question of "[w]hether the [district] court strictly complied with rule 11 is a question of law, reviewed for correctness." Id.
ANALYSIS
¶11 Rule 11 of the Utah Rules of Criminal Procedure governs the entry of guilty pleas. It provides, in part, that a district court may not accept a guilty plea unless the court finds that the defendant has voluntarily entered the plea, knows of "the right to a speedy public trial before an impartial jury," and "has been advised that the right of appeal is limited." Utah R. Crim. P. 11(e)(2), (e)(3), (e)(8). "[T]he substantive goal of rule 11 is to ensure that defendants know of their rights and thereby understand the basic consequences of their decision to plead guilty." Visser, 2000 UT 88 at ¶ 11. To accomplish this goal, we have placed the burden of complying with rule 11(e) on the district courts, requiring them to "personally establish that the defendant's guilty plea is truly knowing and voluntary and establish on the record that the defendant knowingly waived his or her constitutional rights." Id. (internal quotations omitted). We have described this burden "as a duty of `strict' compliance." Id.
¶12 Although the phrase might suggest otherwise, strict compliance with rule 11(e) does not require that a district court follow a "particular script" or any other "specific method of communicating the rights enumerated by rule 11." Id. at ¶ 13. To the contrary, "strict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled." State v. Maguire, 830 P.2d 216, 218 (Utah 1992). Indeed, rule 11 itself contemplates that the district court may base its findings on either the "questioning of the defendant on the record or, if used," a plea affidavit, "after the court has established that the defendant has read, understood, and acknowledged the contents of the statement." Utah R. Crim. P. 11(e). Additionally, we have held that the district court may also base its required findings on the "contents of other documents such as the information, presentence reports, [and] exhibits." Visser, 2000 UT 88 at ¶ 12 (internal quotations omitted). Moreover, the district court may consider other factors in the record, including the defendant's "personal trial experience." Id. at ¶ 13. Because strict compliance may be accomplished through a variety of means, the question of whether a defendant was provided with a sufficient understanding of rule 11(e) rights "necessarily turn[s] on the facts of each case." Maguire, 830 P.2d at 218 (internal quotations omitted).
¶13 The court of appeals held that the district court failed to fulfill its duty to strictly comply with the requirements of rule 11(e) in two ways. First, it concluded that the district court did not comply with rule 11(e)(3) because the district court's "mere mention of an imminent trial date [was] not sufficient to satisfy rule 11's requirement that a defendant be apprised of the right to a speedy trial." Corwell, 2003 UT App 261 at ¶ 15. Second, it held that the district court did not comply with rule 11(e)(8) because, rather than explaining the parameters of Corwell's limited right to appeal, it "merely informed Corwell that she could appeal the denial of her motion to suppress," id. at ¶ 17. We address each of these issues in turn.
I. RIGHT TO A SPEEDY TRIAL
¶14 Rule 11(e) provides that a district court may not accept the guilty plea of a defendant until the court has found, among other things, that "the defendant knows of the right . . . to a speedy public trial." Utah R. Crim. P. 11(e)(3). In Visser, when faced with the question of whether the district court strictly complied with rule 11(e), we concluded that recitation of the phrase "speedy trial" was not necessary to properly communicate the concept of a speedy trial to the defendant. 2000 UT 88 at ¶¶ 13-14. In so doing, we rejected the notion that rule 11(e) rights must be mechanically recited to the defendant and instead reemphasized that the concepts found in rule 11(e) may be communicated to the defendant using a variety of means. Id.
¶15 In Visser, the defendant indicated that he wished to enter a guilty plea after his trial began. Id. at ¶ 3. In response, the district court conducted a plea colloquy. Although it informed Visser that he had "a right to continue [his] trial through to a jury verdict," the district court did not specifically recite the phrase "speedy trial." Id. at ¶ 4. After completing the colloquy, the district court accepted Visser's guilty plea. Id. at ¶ 5. The day after his plea was entered, however, Visser moved to withdraw it. Id. at ¶ 6. The district court denied Visser's motion. Id. Reversing that denial, the court of appeals held that the district court failed to strictly comply with rule 11(e) because it did not "specifically inform defendant . . . of his right to a speedy trial before an impartial jury." State v. Visser, 1999 UT App 19, ¶¶ 17-18, 973 P.2d 998. We reversed the court of appeals, holding that Visser's trial experience prior to entering his guilty plea "communicated at least as much as would the mere oral recitation of the 'right to a speedy public trial before an impartial jury.'" Visser, 2000 UT 88 at ¶ 13 (citation omitted).
¶16 Here, the court of appeals declined to apply Visser in view of its conclusion that this case "presents a scenario significantly different from that presented in Visser." Corwell, 2003 UT App 261 at ¶ 15. In distinguishing the two cases, the court of appeals specifically relied on the fact that this case involves a pretrial plea, whereas Visser involved the entry of a guilty plea after trial had already begun. Id. While this distinction is accurate, it is not determinative.
¶17 In Visser, we held that the concepts embodied in rule 11(e) must be communicated to the defendant before entering a guilty plea. 2000 UT 88 at ¶¶ 10-11. We recognized, however, that those concepts may be communicated to the defendant in a variety of ways. Id. at ¶ 13. We have encouraged district courts to use, when appropriate, the safe harbor phrases of rule 11(e) because they provide a defendant with an understanding of his rights and "discourage . . . post-conviction attacks." State v. Gibbons, 740 P.2d 1309, 1314 (Utah 1987). Nevertheless, the particular phrases contained in rule 11(e) are not the exclusive means of communicating the concepts they embody.[2] Indeed, in some situations, a different means of communicating the rule 11(e) concepts may provide a defendant with a greater appreciation of his rights than would the language of the rule itself. In such instances, we do not discourage modification of the phrases to fit a defendant's particular circumstances and, in fact, encourage any modification of the rule 11(e) language that gives the defendant a more concrete and meaningful understanding of his rights.
¶18 Our goal in requiring strict compliance with rule 11(e) is to ensure that defendants understand their rights and the consequences of pleading guilty. See Visser, 2000 UT 88 at ¶ 11. We do not want to "overshadow[] or undermine[] [that goal] by [requiring adherence to] formalistic ritual." Id. Therefore, we hold that the test of whether a district court strictly complies with rule 11(e) is not whether the court recites the phrases found in that rule. Rather, the test is whether the record adequately supports the district court's conclusion that the defendant had a conceptual understanding of each of the elements of rule 11(e).
¶19 The record in this case supports the district court's finding that Corwell had an adequate conceptual understanding of her right to a speedy trial. In light of the fact that Corwell's trial was scheduled to begin just one business day after the day on which she entered her plea, the district court's repeated warning that Corwell's decision to plead guilty would result in her giving up her "trial next Monday" communicated as much, if not more, about the timing of Corwell's trial than would its use of the generic and abstract phrase "speedy trial." As we held in Visser, "the [district] court's modification of the colloquy to fit the peculiar circumstances of the case fulfilled the court's duty to `personally establish that the defendant's guilty plea [was] truly knowing and voluntary.'" Id. at ¶ 15 (quoting State v. Abeyta, 852 P.2d 993, 995 (Utah 1993) (second alteration in original)). We therefore hold that the court of appeals erred in concluding that Corwell was not properly informed of her right to a speedy trial.
II. LIMITED RIGHT OF APPEAL
¶20 Before accepting a plea, rule 11(e) also requires the district court to find that "the defendant has been advised that the right of appeal is limited." Utah R. Crim. P. 11(e)(8). Corwell contends that this language requires the district court to explain the "numerous . . . appeal issues that she [would] waive[] by pleading guilty." We disagree. Nothing in rule 11(e) requires a detailed explanation of how a guilty plea may affect the particular grounds for appeal. Just as we have held that the district court is not required to "separately communicate[]" the "individual aspects of the speedy trial right," Visser, 2000 UT 88 at ¶ 14, we similarly hold that the district court is not required to separately communicate the individual aspects of a defendant's limited right of appeal.
¶21 To conclude that the district court strictly complied with rule 11(e), we must determine that the record supports the district court's finding that Corwell was informed of her limited right of appeal. Although the district court did not discuss the limited right of appeal with Corwell during the plea colloquy, Corwell's plea affidavit adequately described the limits on her right of appeal when it informed her that she would waive her right to appeal her conviction if she pleaded guilty. The district court properly incorporated this affidavit into the record when it questioned Corwell as to whether she had sufficient time to read the affidavit and whether she understood her rights as explained in that document.[3] We accordingly hold that the record supports the district court's conclusion that Corwell was informed of her limited right of appeal. See Maguire, 830 P.2d at 217 (holding that a plea affidavit "can be incorporated into the record" if the district court "conduct[s] an inquiry to establish that the defendant understands the affidavit and voluntarily signed it" (internal quotations omitted)). The court of appeals therefore erred when it held to the contrary.
CONCLUSION
¶22 The court of appeals erred when it concluded that the district court did not strictly comply with the requirements of rule 11(e). The district court fully satisfied the demands of strict compliance when it adequately informed Corwell of her right to a speedy trial, using a modified phrase to fit Corwell's particular circumstances, and it properly incorporated into the record the plea affidavit, which informed Corwell of her limited right of appeal. Accordingly, we reverse.
¶23 Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish's opinion.
NOTES
[1] In Sery, the defendant entered a plea of no contest to the charges against him but conditioned entry of the plea upon his right to appeal the district court's denial of his motion to suppress certain evidence. 758 P.2d at 937. The State asserted that the defendant had waived the right to appeal all pretrial rulings by pleading no contest. Id. The court of appeals upheld the defendant's right to appeal the denial of his suppression motion, holding that the use of such conditional pleas by criminal defendants, if agreed to by the prosecution and accepted by the trial court, is a "sensible and sound practice." Id. at 938-39.
[2] See, e.g., State v. Dean, 2004 UT 63, ¶ 12, 95 P.3d 276 ("[A]ppellate review of the trial court's denial of a defendant's motion to withdraw may also consider the facts and circumstances in which the plea was taken."); accord State v. Hittle, 2004 UT 46, 94 P.3d 268. Although Dean and Hittle were reviewed under a plain error analysis, our discussion of the "strict compliance" requirement in those cases is consistent with our holding today. See Dean, 2004 UT 63 at ¶¶ 18-20.
[3] The fact that Corwell understood her limited right of appeal is also evidenced by her counsel's representation to the court that he had reviewed the plea affidavit with Corwell and that Corwell understood the statements contained therein. That representation is consistent with the fact that Corwell had decided to enter a conditional plea pursuant to State v. Sery, 758 P.2d at 938-39, and that such a decision would have required a discussion between Corwell and her trial counsel with respect to her ability to appeal the denial of her motion to suppress. Indeed, just prior to the plea colloquy, trial counsel for Corwell's codefendant informed the district court that defendants were going to plead guilty under Sery, reserving their right to appeal the denial of their motions to suppress. The court, providing clarification, responded by stating that a Sery plea, "so everybody is clear on that, means you can appeal it." This statement, informing defendants that they could appeal the denial of their motions to suppress, is consistent with the fact that their rights to appeal were otherwise limited.
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783 F.Supp. 600 (1992)
David DUKE, et al.
v.
Max CLELAND, et al.
No. 1:92-cv-116-RCF.
United States District Court, N.D. Georgia, Atlanta Division.
January 21, 1992.
*601 Sam Glasgow Dickson, Griffin Dickson & O'Toole, Neil T. Bradley, Moffatt Laughlin McDonald, Kathleen L. Wilde, Mary Ellen Wyckoff, American Civil Liberties Union, Southern Regional Office, Gerald R. Webber, American Civil Liberties Union, Atlanta, Ga., for plaintiffs.
Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants.
Oscar N. Persons, Alston & Bird, Atlanta, Ga., for intervenor.
ORDER
RICHARD C. FREEMAN, Senior District Judge.
Plaintiffs came to this court on January 16, 1992 seeking a temporary restraining order and a preliminary injunction. The court set a hearing for January 18, 1992.[1] All defendants were sued in their official capacities.
Following the hearing, and after carefully considering all arguments before the court, the court finds that the movants in this action have not "clearly" carried their burden of persuasion as to each of the four elements required for a preliminary injunction.
STATEMENT OF THE FACTS
Plaintiffs have filed a verified complaint alleging that defendants have denied plaintiffs' rights of free speech and association by denying plaintiff and presidential aspirant, David Duke, access to the Republican primary ballot.
Plaintiffs claim that Mr. Duke meets the objective preliminary criteria generally used to evaluate candidates for inclusion on the ballot, and that he was initially recommended for the ballot by defendant Cleland, in his official capacity, but was voted off by the Republican members of the primary selection committee. See O.C.G.A. § 21-2-193. Plaintiffs further argue that the party members who voted to exclude Mr. Duke from the ballot were acting as part of the state apparatus and not in their "private" "party" capacities. Finally, plaintiffs propose that the sole reason for exclusion from the ballot was invidious discrimination based on Mr. Duke's political views and associations, which should be protected under the United States Constitution's first amendment.
The ballots are ready to be sent to the printer without Mr. Duke's name on them. Plaintiffs seek a temporary restraining order and preliminary injunction enjoining defendants from sending the Republican primary ballot to the printer without Mr. Duke's name included.
INJUNCTIVE RELIEF
As in Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga.1980) (Freeman, J.), the movants seek to preliminarily enjoin the printing of the Georgia Presidential Primary ballots without Mr. Duke's name on it. The standard for granting preliminary injunctive relief requires that plaintiffs prove four separate elements: "(1) a substantial likelihood that [they] will ultimately prevail on the merits; (2) that [they] will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movants outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest." Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985) (citation omitted). Furthermore, "[a] preliminary injunction is an extraordinary remedy and should not be granted unless the movant `"clearly carries the burden of persuasion"' on all four elements." Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991) (quoting United States v. Jefferson *602 County, 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974))).
I. IRREPARABLE INJURY
Plaintiffs attempt to establish that without the intervention of the court, their first amendment rights of engaging in political campaigning and voting in the primary for their candidate will be forever lost.[2] Because the violation of plaintiffs' first amendment rights is their only claim for both the irreparable injury prong and the substantial likelihood prong, the court will discuss them jointly. Unless the plaintiffs show the court that the right exists, they can neither succeed on the irreparable injury element, nor on the likelihood of success element.
The case of Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga.1980) is determinative of the issue of rights. Plaintiffs have a heavy burden to persuade the court of the existence of their first amendment rights, yet they have failed to even distinguish their action from the claims in Belluso. While Mr. Belluso challenged a different part of the decision-making process, it is clear that he claimed the exact same first amendment rights that are presented in this action. Id. at 906 (access to the primary ballot of the Republican Party of Georgia claimed to be a first amendment right). In Belluso, this court distinctly held that, "the right to appear on a general election ballot is constitutionally favored[,] but less than fundamental." Belluso, 485 F.Supp. at 911.
The court further indicated that there is no right whatsoever to be included on the primary ballot of a party which does not, itself, extend that right. Id. at 912. The political parties are autonomous in their extension of the right to represent their party. "Parties have long been free to strategize and act at least before the voting begins in the closed and clouded atmosphere of the smoke-filled room. Parties exercise rights of free speech and association when they assert this prerogative.... Belluso asserts no group's interest in advancing his candidacy. His claimed need to `associate' with an unwilling partner, the Republican party in Georgia, is not a first amendment right." Id. (citing Ripon Society v. National Republican Party, 525 F.2d 567, 584-86 (D.C.Cir.1975) (en banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1147 & 1148, 47 L.Ed.2d 341 (1976). Likewise, plaintiffs have failed to show the court that a first amendment right exists which guarantees access to a party's primary ballot (in direct contravention of the party's stated desires).
Moreover, plaintiffs' claimed injury has not been affected by the alleged state action. Plaintiffs claim that "[t]he loss of [f]irst [a]mendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunctive Relief [Plaintiffs' Memorandum], at 15. However, plaintiffs have not demonstrated that Mr. Duke and his supporters could not "engage in political campaigning and organizing for the election." Id. Plaintiffs have cited no law which prevents them from organizing or campaigning outside the parameters of the Republican Party Primary. Mr. Duke's absence from the primary ballot in no way prevents him from accessing the general ballot. Plaintiffs have not shown the court anything preventing Mr. Duke from running as an independent candidate or as a write-in candidate on the general election ballot. Finally, plaintiffs have failed to show the court any barrier preventing Mr. Duke's Republican supporters from spearheading a campaign at the national convention promoting Mr. Duke as the party's national representative. In essence, plaintiffs did not show this court that Mr. Duke could not become the Republican Party's *603 representative on the general election ballot. "[A] candidate who loses in Georgia could still appear on the general election ballot as the party's nominee." Plaintiffs' Memorandum, at 14 (citing Anderson v. Celebrezze, 460 U.S. 780, 804, 103 S.Ct. 1564, 1578, 75 L.Ed.2d 547 (1983). Therefore, because this court finds that plaintiffs have not established any injury and hence the irreparability of any injury, the court cannot issue any form of injunctive relief. The plaintiffs cannot receive the injunction they request if they fail to show any one of the four-prong test. By not proving their injury they fail the first two. Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991).
II. SUBSTANTIAL LIKELIHOOD OF SUCCESS
In order to meet their burden under the substantial likelihood of success prong, the plaintiffs must show the court that they would ultimately prevail on the merits of their claim. Sofarelli v. Pinellas County, 931 F.2d 718, 723-24 (11th Cir.1991). Therefore, plaintiffs must demonstrate the court that: (1) the claimed constitutional right exists;[3] (2) the alleged action was state action; (3) the alleged state action infringed (or would infringe) on plaintiffs' rights; and (4) there are no counterbalancing rights or interests. The first, third and fourth aspects are dealt with in other sections. The threshold question for the likelihood of success is whether the action complained of is "state action."
This court has recently outlined the various means by which private actors may engage in state action. "[T]he proper inquiry is whether the defendant's conduct is `fairly attributable' to the state. A person may qualify as a state actor because he receives overt assistance from state officials, acts in concert with other state actors, where his authority was delegated to him by the state, or where the state creates the legal framework governing the conduct." Baxter v. Fulton-DeKalb Hospital Authority, 764 F.Supp. 1510, 1517 (N.D.Ga.1991) (Forrester, J.) (citations omitted).
The Georgia legislation governing the process of primary candidate selection is O.C.G.A. § 21-2-193. In pertinent part it states:
The Secretary of State ... shall prepare and publish a list of names of potential presidential candidates who are generally advocated or recognized in news media throughout the United States as aspirants for that office and who are members of a political party or body which will conduct a presidential preference primary in this state; provided, however, that the Secretary of State shall not include on such list the name of any potential presidential candidate who, if elected to the office of President of the United States, would be ineligible under the Constitution and laws of the United States to serve in such elected office. The Secretary of State shall submit such list of names of potential presidential candidates to the selection committee.... Each person designated by the Secretary of State as a presidential candidate shall appear upon the ballot of the appropriate political party or body unless all committee members of the same political party or body as the candidate agree to delete such candidate's name from the ballot. ...
(b) Any presidential candidate whose name is not selected by the Secretary of State or whose name is deleted by the selection committee may request, in writing, to the chairman of the selection committee ... that his name be placed on the ballot.... the Secretary of State shall convene the committee to consider such requests.... If any member of the selection committee of the same political party or body as the candidate requests that such candidate's name be placed on the ballot, the committee shall direct the Secretary of State to place the candidate's name on the ballot.
Id. (emphasis added).
Plaintiffs failed to prove that in the process outlined above the actions of the Republican Party members of the selection *604 committee were fairly attributable to the state. In fact, from the court's reading of the appropriate statute, it appears that the state has attempted to leave the party representation process to the political parties. Id. ("unless all committee members of the same political party or body as the candidate agree"). The state does not assist the party members in their decision;[4] it does not join in the decision-making process with the party members; it does not delegate authority to the parties that the parties do not already have;[5] and it does not mandate guidelines for the decision-making process. Id. See also Baxter, 764 F.Supp. at 1517.
A similar situation was recently reviewed by the Eleventh Circuit Court in Delgado v. Smith, 861 F.2d 1489 (11th Cir.1988), cert. denied, 492 U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 589 (1989). Delgado concerned a balloting procedure in Florida. In Delgado, state officials were charged by statute with aiding in the preparation of voter iniatives for the ballot. "For example, the Secretary of State must determine that the petition signatures meet the number and geographic distribution requirements, approve the form of the petition and submit it to the Attorney General of Florida specifying that the petition sponsors have fulfilled certain formal requirements." Id. 861 F.2d at 1491. Apparently, the Secretary of State in Florida does not make substantive determinations, but leaves that to the initiates. Id. 861 F.2d at 1491-92. Likewise, the Secretary of State of Georgia prepares the ballot for Georgia without making substantive determinations (which are left to the parties). See O.C.G.A. § 21-2-193.
The Eleventh Circuit was clear that this type of action was not state action. The court remarked that the State officers assisted all citizens who wished to submit initiative petitions without either "censor[ing] nor endors[ing] the content of any iniative petitions." Delgado, 861 F.2d at 1496. Then, after discussing a line of similar cases, the court wrote:
"No state action link exists between the proponents of the English language petition and the state statutory scheme. The state does not initiate the petition, does not draft the language of the petition, does not address the merits of the proposal and does not participate in any way in the circulation of the petition or in the collection of signatures. Rather, all of this action is taken by private citizens. The state's responsibility is to ensure that the petition meets the requirements of law and will fairly present the proposition that may or may not be placed before the electorate. Such regulation is not sufficient to transpose such private conduct into state action. It is only after a petition is successfully subscribed to that it becomes a matter to be put to a vote a part of the electoral process."
Delgado, 861 F.2d at 1497.
Likewise, the Georgia process is left to private citizens until the ballots are prepared for printing. O.C.G.A. § 21-2-193. The sole difference between the two situations is that O.C.G.A. § 21-2-191 essentially restricts participation in the primaries to the two major parties. Outside that point, the plaintiffs have failed to persuade the court that the party representatives are any different than the voter initiates. Furthermore, the Eleventh Circuit has held that it is not until after the initial process [O.C.G.A. § 21-2-193] that it becomes part of the electoral process. Delgado, 861 F.2d at 1497.
III. OUTWEIGHS POTENTIAL DAMAGE TO DEFENDANTS FROM INJUNCTION
Plaintiffs' arguments for the last two prongs of the preliminary injunction *605 test are that the injunction would not harm defendants and would promote the public interest. They claim, without authority, that the injunction "can hardly constitute a cognizable injury." Plaintiffs' Memorandum, at 17. The court disagrees. Not only is there evidence of an injury to defendants which outweighs any potential harm to plaintiffs, but also plaintiffs have failed (once again) to carry their burden in the process. A conclusory statement with no cited authority is hardly an argument worthy of a preliminary injunction.
The other parties to this action have noted a distinct harm to defendants and to the intervening party the state's interference with the right of association of the Republican Party of Georgia. Perhaps the most compelling of the arguments is the forced association of an unwanted presidential candidate on a particular party. The right of association is emphasized in Eu v. San Francisco City Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). The Court clearly indicated that the right to choose party representation should not be interfered with by the state.
Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to "`identify the people who constitute the association,'" Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. [544] 548 [93 L.Ed.2d 514] (quoting Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. [303] 307 [38 L.Ed.2d 260]) and to select a "standard bearer who best represents the party's ideologies and preferences." Ripon Society, Inc. v. National Republican Party, 525 F.2d 567, 601 (D.C.Cir.1975) (Tamm, J., concurring in result), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976).
Id. at 224, 109 S.Ct. at 1021.[6]
The court finds that defendants' uncontested damages are of a nature that they not only pertain to defendants, but also to the political process itself. Therefore, there is a natural overlap between the above discussion and any discussion of the final prong of the preliminary injunction test.
IV. CONCLUSION
For the foregoing reasons, the plaintiffs' request for a temporary restraining order and a preliminary injunction to prevent defendants and their agents from excluding plaintiff David Duke from the 1992 Georgia Presidential Preference Primary Ballot is DENIED.
SO ORDERED.
NOTES
[1] At the hearing, Mr. Alec L. Poitevint requested intervention in this matter pursuant to Fed. R.Civ.P. 24, and his request was granted.
[2] Plaintiffs have not argued to this court that they will suffer irreparable harm from violations of their fourteenth amendment rights. Therefore, the court will ignore that aspect of their petition for relief. The movant carries the burden of establishing each aspect of the preliminary injunction test for each claimed harm. See Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir.1991).
[3] As previously discussed, because the plaintiffs failed to prove the existence of a first amendment right, they have already failed to meet this aspect of the test for preliminary injunction.
[4] The ballot determination is a two-step process. The initial process whereby the Secretary of State submits the names to the committee is not challenged in this action.
[5] This aspect of state action is discussed below. However, the court reads O.C.G.A. § 21-2-191 (only those parties which have cast greater than twenty percent of the votes in the last presidential election may participate in the presidential preference primary) and O.C.G.A. § 21-2-195 (parties are free to set out the rules by which delegates are bound) alongside O.C.G.A. § 21-2-193 (ballot decision-making) as a distinct attempt at preserving party autonomy in the nomination process. If the State could not ask the party to choose the ballot participants, the whole process would surely be state action.
[6] The Court also wrote: "Freedom of association also encompasses a political party's decisions about the identity of, and the process for electing, its leaders." Id. at 224, 109 S.Ct. at 1024.
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118 Ill. App.3d 21 (1983)
454 N.E.2d 836
EVANGELICAL TEACHER TRAINING ASSOCIATION, Plaintiff-Appellee,
v.
JOHN LOTUS NOVAK, Du Page County Treasurer, Defendant-Appellant.
No. 82-822.
Illinois Appellate Court Second District.
Opinion filed September 28, 1983.
*22 J. Michael Fitzsimmons, State's Attorney, of Wheaton (George J. Sotos, Assistant State's Attorney, of counsel), for appellant.
James M. Huck, Jr., and Mark N. Pera, both of Huck & Walsh, of Wheaton, for appellee.
Judgment affirmed.
PRESIDING JUSTICE SEIDENFELD delivered the opinion of the court:
The treasurer of Du Page County appeals from a judgment which found that the property of the Evangelical Teacher Training Association, an Illinois Not-for-Profit Corporation (ETTA), was not used entirely for religious purposes and thus was not entitled to tax exemption for the 1981 tax year.
Between 1977 and 1980 ETTA's headquarters in Wheaton were exempted from real estate taxes. In 1981, the supervisor of assessments for Du Page County filed a complaint with the Du Page County Board of Review challenging the exemption on the basis that the property was not used exclusively for religious purposes. (Ill. Rev. Stat. 1979, ch. 120, par. 500.2.) ETTA then filed a complaint in the circuit court to enjoin the revocation of its tax exempt status and the collection of the taxes.[1]
ETTA was organized in 1930 by five Bible colleges. ETTA's purpose, as expressed in its charter, was to upgrade Christian education at varied academic levels including seminary studies, adult education, and Sunday school activities. Since 1930, it has grown to include 208 members. All of its members are approved schools, liberal arts and *23 Bible colleges, seminaries and Bible institutes.
Biannual corporate meetings are attended by delegates elected from each of its member organizations. Those delegates elect members who sit on ETTA's board of directors. Those directors appoint the corporate officers, and elect an executive committee.
Dr. Paul Loth, who began his professional career as a minister, and ETTA's president since 1961, testified at the hearing.
Loth and his son, a seminary graduate and a Ph.D., who also works for ETTA, have numerous speaking engagements at local chapel services and classes, as well as at national conferences on the subject of Christian education. They lecture at member colleges and give advice to local faculty on the training and preparation of seminary students. No fee is charged for these speaking services.
In addition to speaking and lecture services, ETTA prepares materials for 14 separate Bible course offerings, which include texts, cassette tapes, overhead masters, instructor's guides and lesson plans. The course offerings stress Bible lessons as well as Christian education techniques.
The materials are designed for use in seminaries, in adult education classes in local churches, and in Sunday schools. Qualified graduates of member schools are eligible to teach the courses. ETTA and member schools jointly issue a diploma to seminary graduates, certifying the graduate's entitlement to teach the courses, often referring such individuals to local congregations who have requested personnel to teach one of ETTA's courses at their church.
The courses themselves are written by faculty members at member schools, who receive a token honorarium for their efforts. The course material is then reviewed by an editorial committee, composed of faculty at member schools, and by two editors employed by ETTA. Once the editorial process is complete, the course material is translated into eight languages and distributed worldwide.
Course material packets are sold at $14.95, to those who can afford to buy them. ETTA has annual net sales of course materials and texts of $270,000. No royalty is exacted by it from members or nonmembers, relating to the teaching of its courses. Approximately half of the sales of teaching aid materials are distributed to nonmember schools.
ETTA does not produce materials to be distributed free of charge, but often donates its course and text materials to libraries and to "mission schools" without charge. Losses from such distribution are balanced by its income from "high volume textbook" sales.
In addition to sales, ETTA receives income in the form of $75 annual *24 membership fees, a $5 diploma fee, and a relatively small amount of private donations ($2,700 in the past 10 months of its fiscal year). Donations are placed into a Christian education scholarship fund to promote its teacher training program in Third World countries.
In the fiscal year between June 30, 1981, and June 30, 1982, ETTA encountered a net operating loss of $22,605.47, on gross income of $222,946. That loss was offset by interest income of $23,681, to yield a net income of $1,075.53. It maintains a "quasi-endowment fund" of $125,000, for use, inter alia, in the development of new course materials. The remaining $339,000 in book assets include such items as inventory, accounts receivable, and property holdings.
ETTA's sole administrative office is situated on its Wheaton, Illinois, property. All of its administrative functions originate from that office. Books and materials are shipped from a separate warehouse.
ETTA advertises its programs, but not its books and materials, in various Christian oriented magazines and at conventions (a booth is often rented at conventions for such purpose). It does not offer its materials for sale at workshops, which are oriented more toward selecting and enlisting teachers for programs at local churches. In contrast, ETTA may distribute its materials free of charge during seminars conducted at schools or conventions.
Section 19.2 of the Revenue Act of 1939 exempts from property tax "[a]ll property used exclusively for religious purposes, or used exclusively for school and religious purposes * * *." (Ill. Rev. Stat. 1981, ch. 120, par. 500.2.) The question is whether the providing and promoting of a common course in teacher training which instructs on the general principles and specific methods of teaching with particular emphasis given to Bible studies, personal evangelism and missions, is within the "religious" exemption.
1 Whether a party has been organized and operated exclusively for an exempt purpose is to be determined from its charter and bylaws and the actual facts relating to its method of operation. Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 349.
In People ex rel. McCullough v. Deutsche Gemeinde (1911), 249 Ill. 132, 136-37, the court noted that, as applied to uses of property, "a religious purpose means a use of such property by a religious society or body of persons as a stated place for public worship, Sunday schools and religious instruction." In People ex rel. Carson v. Muldoon (1922), 306 Ill. 234, 238, the court with reference to Deutsche Gemeinde, however, said, "[t]his was not stated as inclusive of everything that might in the future be regarded as a use for religious purposes but as illustrative of the nature of such use." In Scripture *25 Press Foundation v. Annunzio (1953), 414 Ill. 339, 352, the court noted that "no decision of this court attempting to lay down an all-inclusive definition or specification of what constitutes a religious purpose," had been called to its attention. In so commenting, the court had before it Deutsche Gemeinde. 414 Ill. 339, 350-51.) See also Community Renewal Society v. Department of Labor (1982), 108 Ill. App.3d 773, 778-79.
The county claims ETTA's purposes are accomplished primarily by the sale of religious materials, teacher's training aids, and religious courses to member religious institutions for use in conducting religious activity of these institutions. It relies principally on Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, in which the religious exemption was denied. We find the case to be distinguishable in substantial respects. In Scripture Press the court noted that the incorporators and parties "were neither ordained ministers, pastors, nor representatives of any ecclesiastical or church organization." 414 Ill. 339, 355.) Here, the duties of ETTA are controlled by its members, each of whom are themselves religious organizations; and the operation is for the sole benefit of its member organizations and such other nonmembers individuals and organizations, who may avail themselves of the services, some of whom receive services and material free of charge or below cost. In Scripture Press, the court noted that the bylaws of the corporation gave private parties power to manipulate corporate activities, and conceivably, to distribute corporate assets to themselves either in the life of the corporation or upon dissolution. 414 Ill. 339, 357-58.) Here, upon dissolution ETTA's assets would be applied to a charitable purpose similar to that stated in its charter (Ill. Rev. Stat. 1981, ch. 32, par. 163a44) and no party could benefit personally.
The charter of ETTA states its corporate purposes
"We, representatives of Bible institutes, schools of the Bible, colleges and seminaries in the United States and its possessions (Alaska, Puerto Rico), Canada, Central America, Cuba and Philippines, in order to foster a closer cooperation among evangelical Christian institutions; to certify to the public our deep interest and concern for Christian education; to provide and promote a common course in teacher training which will give adequate attention to a study of the Bible, Personal Evangelism, and Missions as well as instruction in the general principles and specialized methods of teaching; to recognize and encourage the use of textbooks of approved orthodoxy, do hereby associate ourselves" *26 which is repetitive of the preamble to the constitution of the Evangelical Teacher Training Association.
In Congregational Sunday School & Publishing Society v. Board of Review (1919), 290 Ill. 108, where both the charitable and religious exemptions were involved, the court found that the dominant object of the Society was to spread the gospel by the written word and that it directly promoted its "religious, charitable and beneficent purposes" 290 Ill. 108, 123) by the distribution of its religious and moral books and Sunday school supplies. Thus, the purpose of the Society was accomplished by the effect on the minds and lives of the children and adults who read and studied its books and periodicals, enhanced by sending its workers and missionaries into areas where religious teaching had been neglected. 290 Ill. 108, 117-18. See also Inter-Varsity Christian Fellowship v. Hoffman (1978), 62 Ill. App.3d 798, 801.
2 We recognize that both Congregational Sunday School and Inter-Varsity Christian Fellowship involve claims based on both religious and charitable purposes while this appeal is confined to only the claim for religious exemption. While the analysis required for charitable purposes may not be identical in all situations with that applicable to the religious exemption, it is a fair inference from the authorities that many of the same factors may be common to both claims for exemption in determining whether a religious or secular purpose is being performed. Thus in Congregational Publishing, the court noted, "they are so closely associated that we will discuss them together." Congregational Sunday School & Publishing Society v. Board of Review (1919), 290 Ill. 108, 112. See also Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 357-58.
3 While the county broadly asserts that ETTA's stated purpose to improve Christian education at academic and local levels, is only accomplished through the sale of its religious books and materials to others, who in turn conduct the "religious" oriented activity, the opposite is manifest from the record. The chief officers of ETTA are both ministers and doctors of education. Their activities are primarily directed toward the teaching and demonstration of teacher training techniques, as is disclosed by their exhaustive travel, lecture, and workshop schedule. These travel and speaking activities serve to directly accomplish ETTA's corporate purpose, the promotion of Christian education, in a manner which could not be achieved through the mere sale or distribution of its books and religious materials.
We conclude that ETTA has met its burden of proof to establish its qualification for exemption from real estate taxation pursuant to *27 section 19.2 of the Revenue Act of 1939. The judgment of the circuit court of Du Page County is affirmed.
Affirmed.
NASH and VAN DEUSEN, JJ., concur.
NOTES
[1] The parties have not raised any question of procedures under the provision of the Revenue Act of 1939, which applied to the denial of tax exempt status for 1981. (Ill. Rev. Stat. 1979, ch. 120, par. 589(6).) We therefore do not address the question.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00157-CR
MICHAEL J. GALLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court 4 of Dallas County
Dallas County, Texas
Trial Court No. F-1054301-K
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
In Dallas County, Texas, 1 Michael J. Galloway entered an open plea of guilty to
abandoning a child with intent to return. The trial court deferred adjudication of guilt and placed
Galloway on community supervision for a period of four years. About two years later, the State
filed a motion to adjudicate guilt, alleging that Galloway violated six terms of his deferred
adjudication community supervision. Galloway pled “not true” to the allegations. After a
hearing, the trial court granted the State’s motion, found Galloway guilty of violating four of his
supervision conditions, sentenced him to eighteen months’ confinement, and assessed court costs
of $290.02.
On appeal, 2 Galloway contends that the trial court erred (1) by allowing a Dallas County
officer to testify from the reports prepared by a nontestifying Collin County community
supervision officer, (2) by entering a judgment reflecting that he pled “true” to the State’s
revocation allegations, (3) by entering a judgment indicating that he violated all of the
community supervision terms alleged in the State’s motion to adjudicate, and (4) by assessing
court costs against him in the absence of sufficient evidence to support such an assessment.
We modify the judgment to reflect (1) a plea of not true and (2) a finding that Galloway
violated only conditions H, K, R, and U of his community supervision as alleged in the State’s
motion to adjudicate. We affirm the judgment, as modified.
1
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We decide
this case pursuant to the precedent of the Fifth Court of Appeals. See TEX. R. APP. P. 41.3.
2
Galloway also appeals a separate conviction of abandoning a child with intent to return resulting in a sentence of
eighteen months’ imprisonment in our cause number 06-13-00158-CR.
2
I. Background
The State’s motion to adjudicate guilt alleged that Galloway violated six terms of
community supervision by failing to pay various fees, failing to submit a required urine sample,
and/or failing to participate, as directed, in the Smart Start In-Home Program. It was also alleged
that he consumed an alcoholic beverage. Galloway pled not true to the allegations.
At trial, the State’s only witness, Susan Webster, a Dallas County community supervision
officer, testified, over Galloway’s objection, from documents relating to Galloway’s community
supervision. 3 The documents and Webster’s testimony therefrom, indicated that Galloway had
violated several provisions of his community supervision. Following Webster’s testimony, the
State rested, and Galloway and his wife, Victoria, testified for the defense.
II. Standard of Review
We review a decision to adjudicate guilt in the same manner as we review a decision to
revoke community supervision—for abuse of discretion. TEX. CODE CRIM. PROC. ANN.
3
Galloway objected and in his first two points of error argues that Webster’s testimony was hearsay and also
inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), and the Sixth Amendment because, as the records
were prepared by others, Webster had no personal knowledge of the records’ allegations. As a result, Galloway
argues he was deprived of the fundamental right to confront the witnesses. The State responds by citing Gutierrez v.
State, an unpublished case involving a similar petition to adjudicate. See Gutierrez, No. 05-11-01380-CR, 2013 WL
3533549, at *1 (Tex. App.—Dallas July 12, 2013, pet. ref’d) (mem. op., not designated for publication). Gutierrez
cites a line of cases holding that the Confrontation Clause does not apply during revocation hearings because they
are administrative rather than judicial proceedings. See id. (citing Wisser v. State, 350 S.W.3d 161, 164 (Tex.
App.—San Antonio 2001, no pet.); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007,
no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2005, pet. ref’d)). Although we are obligated
to follow the published precedent of the Dallas Court of Appeals in cases transferred from the Fifth Appellate
District, Gutierrez is an unpublished opinion and is not a binding precedent. More importantly, the cases cited in
Gutierrez were decided before Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012), in which the Texas Court of
Criminal Appeals disavowed its prior cases holding that a community supervision revocation hearing was merely an
administrative proceeding and holding, instead, that revocation hearings are judicial proceedings subject to the rules
governing judicial proceedings. Id. at 212. Adjudication hearings are governed by the same rules as hearings to
revoke community supervision and are, in practical terms, hearings on whether to revoke the defendant’s deferred
adjudication community supervision. Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012). With
Galloway’s admissions that he violated conditions of his community supervision, this issue is moot.
3
art. 42.12, § 5(b) (West Supp. 2013); Little v. State, 376 S.W.3d 217, 219 (Tex. App.—Fort
Worth 2012, pet. ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006));
see In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In an adjudication
hearing, the trial court is the sole trier of the facts and determines the credibility of the witnesses
and the weight given to their testimony. T.R.S., 115 S.W.3d at 321. A trial court’s decision to
revoke community supervision and proceed to adjudication is examined in the light most
favorable to the trial court’s order. Id.
To revoke deferred adjudication community supervision, the State must prove by a
preponderance of the evidence every element of at least one ground for revocation. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 10 (West Supp. 2013); T.R.S., 115 S.W.3d at 320. Here, if the
greater weight of credible evidence created a reasonable belief that Galloway violated a single
condition of his community supervision, then an abuse of discretion has not been shown. See
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d
at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref’d)).
In its amended motion to adjudicate, the State alleged that Galloway violated condition H
by failing to pay court costs and fines; condition J by failing to pay community supervision fees;
condition K by failing to pay a Crime Stoppers fee; condition N by failing to submit to non-
dilute, random urine-sample testing as directed; condition R by consuming alcohol while at the
Salvation Army on August 22, 2012; and condition U by failing to participate in the Smart Start
In-Home Program as directed. The trial court struck the State’s allegation regarding condition N
4
and then found that Galloway had violated conditions H, K, R, and U, but did not find a violation
of condition J.
II. Galloway’s Testimony is Sufficient Evidence
Galloway testified in his own defense, and his testimony, alone, supports revocation.
Galloway agreed that he still owed some fees, and he admitted to testing positive for alcohol
consumption. On cross-examination, the following exchange took place:
Q: . . . you agree to Condition R, the one about, you know,
consuming alcohol at the Salvation Army on August 22, 2012. That happened,
didn’t it?
A: That happened.
Q: That is true?
A: That is true.
There is sufficient evidence in the record from which the trial court could have found by
a preponderance of the evidence that Galloway violated a condition of his supervision.
Accordingly, we overrule these points of error.
III. Modification of True Plea
Galloway also contends that the judgment inaccurately reflects (1) that he pled true to the
State’s revocation allegations and (2) that he violated the conditions of his community
supervision as alleged in the State’s motion. The State agrees with Galloway and asks that we
modify the judgment.
The judgment reflects that Galloway pled true to the State’s allegations, and the judgment
makes a finding that, “[w]hile on community supervision, Defendant violated the terms and
conditions of community supervision as set out in the State’s AMENDED Motion to Adjudicate
Guilt as follows: See attached Motion to Adjudicate Guilt.” However, the reporter’s record
5
establishes that Galloway pled not true to all of the allegations in the State’s motion and that the
trial court returned true findings only on the allegations regarding conditions H, K, R, and U.
The Texas Rules of Appellate Procedure give this Court authority to reform judgments and
correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Gray v. State, 628 S.W.2d 228, 233 (Tex.
App.—Corpus Christi 1982, pet. ref’d). We hereby modify the trial court’s judgment to
accurately reflect that Galloway pled not true to the State’s allegations and to accurately reflect
the trial court’s findings that Galloway violated conditions H, K, R, and U as set out in the
State’s amended motion to adjudicate guilt.
IV. Court Costs
In his final point of error, Galloway argues that there is insufficient evidence to support
the trial court’s assessment of $290.02 in court costs against him.
“A clerk of a court is required to keep a fee record, and a statement of an item therein is
prima facie evidence of the correctness of the statement.” Owen v. State, 352 S.W.3d 542, 547
(Tex. App.—Amarillo 2011, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 103.009(a), (c)
(West 2006)). “A cost is not payable by the person charged with the cost until a written bill is
produced or is ready to be produced, containing the items of cost, signed by the officer who
charged the cost or the officer who is entitled to receive payment for the cost.” TEX. CODE CRIM.
PROC. ANN. art. 103.001 (West 2006). “In other words, a certified bill of costs imposes an
obligation upon a criminal defendant to pay court costs, irrespective of whether . . . that bill is
incorporated by reference into the written judgment.” Owen, 352 S.W.3d at 547.
6
The clerk’s record in this case did not originally include a bill of costs. Following the
precedent of the Dallas Court of Appeals, we ordered the Dallas County District Clerk to prepare
and file an itemized bill of costs. See Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—
Dallas 2013, no pet.). In response, we received an unsigned, unsworn computer printout
supporting the amount of costs along with a “Bill of Costs” certification signed by the Dallas
County District Clerk averring that the printout constitutes “costs that have accrued to date.”
The Dallas Court of Appeals has held that this type of filing constitutes a bill of costs. Crain v.
State, No. 05–12–01219–CR, 2014 WL 357398, at *1 n.1 (Tex.App.—Dallas Jan. 31, 2014, no
pet. h.) (mem. op., not designated for publication) (citing Coronel v. State, 416 S.W.3d 550, 555
(Tex. App.—Dallas 2013, pet. ref’d)).
Because the supplemental record contains a bill of costs supporting the amount assessed,
Galloway’s court-costs issue is moot. See Franklin, 402 S.W.3d at 895. We overrule this point
of error.
We affirm the trial court’s judgment, as modified.
Jack Carter
Justice
Date Submitted: March 31, 2014
Date Decided: May 22, 2014
Do Not Publish
7
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